Friday, March 28, 2008

Friends of Yosemite Valley v. Kempthorne

Mar 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15124. The Appeals Court explains that, "Twenty years after the Merced River, which lies in the heart of the Yosemite National Park, was designated a Wild and Scenic River, and seventeen years after the National Park Service (NPS) was statutorily required to prepare a Comprehensive Management Plan (CMP) for the Merced Wild and Scenic River, the question whether NPS has developed a valid CMP is again before us. In 2003, we found certain deficiencies in an earlier CMP -- the 2000 CMP -- and remanded it to the district court."

Interior Department Secretary Kempthorne and the NPS argue that the district court erred in finding that (1) the Merced Wild and Scenic River -- Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement (2005 Revised Plan) fails sufficiently to “address . . . user capacities” as required; (2) the 2005 Revised Plan is deficient because it is not a wholly self-contained plan; and (3) the supplemental environmental impact statement (SEIS) prepared for the 2005 Revised Plan violates NEPA.

The Appeals Court affirmed the district court ruling and said, "We hold that the 2005 Revised Plan does not describe an actual level of visitor use that will not adversely impact the Merced’s Outstanding Remarkable Values (ORVs) as required by Yosemite I and the WSRA [Wild and Scenic River Act], because the Visitor Experience and Resource Protection (VERP) framework is reactionary and requires a response only after degradation has already occurred. Moreover, the interim limits are based on current capacity limits and NPS has not shown that such limits protect and enhance the Merced’s ORVs. And, as we made clear in Yosemite II, we again conclude that the WSRA requires that the CMP be in the form of a single, comprehensive document, which addresses all the required elements, including both the 'kinds' and 'amounts' of use, and thus the 2005 Revised Plan is deficient because it addressed only the two components struck down in Yosemite I and was not a single, self-contained plan. Finally, we conclude that the SEIS violates NEPA because the 'no-action' alternative assumed the existence of the very plan being proposed; the three action alternatives -- which are each primarily based on the VERP framework -- are unreasonably narrow; and for the first five years, the interim limits proposed by the three alternatives are essentially identical."

Access the complete 28-page opinion (
click here).

Wednesday, March 26, 2008

U.S. v. Burlington Northern & Santa Fe

Mar 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 03-17125, 03-17153, and 03-17169. In this important and complicated opinion, a now-defunct company, Brown & Bryant, Inc. (B&B), owned and operated a facility at which toxic chemicals were stored and distributed. Part of the land on which the chemical operation was located was owned by two railroad companies (the Railroads), and some of the chemicals used by B&B were supplied and delivered to the facility by Shell Oil Company (Shell). Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, U.S. EPA and the State of California’s Department of Toxic Substances Control (DTSC) spent a considerable amount of money to clean up the site and may need to spend more in the future.

The two agencies sought to recover these response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the district court held the Railroads and Shell liable for only a minor portion of the total cleanup costs. B&B was defunct by that time, and so could not contribute to the cleanup costs. The agencies were thus "left holding the bag for a great deal of money." Seeking to hold the Railroads and Shell jointly and severally liable for the entire judgment, the agencies appealed. Shell cross-appealed, claiming that it was not an “arranger” under CERCLA, § 9607(a)(3), and therefore is not a party on whom any cleanup liability can be imposed.

In the latest action, the Ninth Circuit issued an order stating, "The full court has been advised of the petitions for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. . . The panel has voted to amend its opinion and to deny appellees’ petitions for rehearing with the following amendments. The opinion filed March 16, 2007 [See WIMS 3/19/07] and amended September 4, 2007, published at 502 F.3d 781 (9th Cir. 2007), is further amended. . . [with 21 specific amendments] No further petitions for rehearing or rehearing en banc will be entertained."

The final opinion concludes, "The district court erred in determining that the harm in this case could be apportioned on this record. Given the district court’s erroneous approach and the paucity of record evidence, there is no reasonable basis for apportioning the damages attributable to the Railroads’ activity. Shell’s liability is a closer call, but the evidence on the record in that regard is also insufficient to support apportionment.
"The district court followed the proper analysis in finding that Shell is liable as an arranger. Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals.

"We therefore reverse as to the district court’s finding on apportionment. We affirm the district court’s findings regarding both the Railroads’ and Shell’s liability. The Railroads and Shell are jointly and severally liable for the harm at the Arvin site, except with regard to the so-called 'Dinoseb hot spot.' We remand for further proceedings not inconsistent with this opinion."

A strong dissent from the order denying the petition for rehearing en banc joined by seven justices indicates, "The panel applies CERCLA in a novel and unprecedented way to impose impossible-to-satisfy burdens on CERCLA defendants. The panel’s interpretation of CERCLA 'arranger' liability creates intra- and inter-circuit conflicts in an area of the law where uniformity among circuits is of paramount importance. . . Further, the panel’s unreasonable application of CERCLA apportionment law imposes joint and several liability on CERCLA defendants where Congress did not so intend. . . The panel’s recent amendments to its opinion do take a step in the right direction by aligning the Ninth Circuit with our sister circuits on CERCLA apportionment law. . . But although the panel’s amended opinion pays lip-service to the Restatement test, the panel then proceeds effectively to disregard it. . .

"True, the land on which the facility operator spilled the toxic fluids encompassed only 4.7 acres. But the panel’s legal errors will spread over this Circuit’s nine states and 1.3 million square miles, to lots large and small. I respectfully dissent from our decision not to rehear this case en banc."

Access the complete order, opinion and dissent (
click here).

Wednesday, March 19, 2008

U.S. v. Approximately 64,695 Pounds Of Shark Fins

Mar 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56274. As explained by the Ninth Circuit, the case arises from a civil complaint brought by the U.S. Government for the forfeiture of 64,695 pounds of shark fins found on board the King Diamond II (KD II), a United States vessel. Claimant-Appellant Tai Loong Hong Marine Products, Ltd. (TLH) owned the shark fins. TLH, a Hong Kong company, had chartered the KD II and ordered it to meet foreign fishing vessels on the high seas, purchase shark fins from those vessels, transport the fins to Guatemala, and deliver them to TLH. The Government seized the fins pursuant to the Shark Finning Prohibition Act (SFPA), which makes it unlawful for any person aboard a U.S. fishing vessel to possess shark fins obtained through prohibited “shark finning.”

TLH does not contest that, on its behalf, the KD II purchased the fins at sea from foreign vessels that engaged in shark finning. Instead, it argues that the KD II is not a "fishing vessel" under 16 U.S.C. § 1802(18)(B), and for that reason the forfeiture of the shark fins it possessed would violate due process.

The Ninth Circuit said, "We agree that neither the statute nor the regulations provided fair notice to TLH that it would be considered a fishing vessel under § 1802(18)(B). We therefore reverse the judgment of forfeiture and remand for further proceedings consistent with this opinion."

Access the complete opinion (
click here).

Monday, March 3, 2008

NRDC v. Winter (Secy. of the Navy)

Feb 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-55054. Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS), and two Administrators of the National Oceanographic and Atmospheric Administration (NOAA) appeal the district court’s January 3, 2008 order [See WIMS 1/7/08], as modified on January 10, 2008 , granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy’s Third Fleet in the waters off the coast of southern California between February 2007 and January 2009 (the SOCAL exercises).

The motion was filed by plaintiffs Natural Resources Defense Council, Inc., International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively NRDC), who are concerned that the Navy’s use of high-intensity, mid-frequency active sonar (MFA sonar) in the SOCAL exercises will cause serious harm to various species of marine mammal present in the southern California waters, and by extension, to plaintiffs themselves.

In granting NRDC’s motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act (NEPA), by failing to prepare an Environmental Impact Statement (EIS). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act (CZMA), by submitting a consistency determination to the California Coastal Commission (CCC) that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program (CCMP).

On January 15, 2008, the Council on Environmental Quality (CEQ) purported to approve “alternative arrangements,” pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy’s use of MFA sonar in the SOCAL exercises [See WIMS 1/17/08]. On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs’ NEPA claim, concluding CEQ’s action was invalid and therefore not entitled to deference [See WIMS 2/6/08]. The district court also expressed concerns about the constitutionality of the President’s CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.

However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds. The district court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs’ favor. Natural Res. Def. Council v. Winter, --- F.Supp 2d ----, 2008 WL 314192 (C.D. Cal. Feb. 4, 2008) (Feb. 4, 2008 Dist. Ct. Order). The Ninth Circuit upheld the district court’s preliminary injunction.

NRDC issued a release on March 1 saying that the, "appeals court last night rejected the Bush administration’s unprecedented effort to exempt the U.S. Navy from federal environmental laws as it engages in high-intensity sonar training off southern California." NRDC said further, "In a comprehensive 108-page opinion, a three-judge panel also upheld every element of a lower court order requiring the Navy to take precautions during the sonar training to minimize harm to whales and other marine mammals. The Navy itself estimates that its 'SOCAL' sonar exercises, an on-going series of drills being conducted over two years, will significantly disturb or injure 170,000 marine mammals, including causing permanent injury to more than 450 whales and temporary hearing impairment in at least 8,000 others. The court’s opinion is a precedent from the nation’s second-highest court that will govern ongoing and future litigation between environmental groups and the military in California, Hawaii, and elsewhere."

Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit, who argued the case in the courts said, “The court’s detailed ruling strikes the right balance between national security and environmental protection, and properly rejects the unlawful waiver the Navy obtained from the White House. Based on thousands of hours of Navy training reports, we proved that the Navy is able to conduct the necessary training of its sailors using the environmentally-responsible measures ordered by the court.”

Access the 6-page order (
click here). Access the 108-page opinion (click here). Access a lengthy release from NRDC with links to related information (click here).