Monday, June 30, 2008

U.S. v. Vasquez-Ramos

Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-50553, 06-50694. As explained by the Appeals Court, Mario Manuel Vasquez-Ramos and Luis Manuel Rodriguez-Martinez (Defendants) were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA. They moved to dismiss the information claiming that prosecuting their possession of the feathers and talons violated the Religious Freedom Restoration Act (RFRA).

The Appeals Court said, "In United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003), under nearly identical facts, we held that there was no RFRA violation. Antoine remains binding law in our circuit, and we affirm the district court’s order denying Defendants’ motion to dismiss."

Defendants claim to have received the feathers during Native American religious ceremonies and to have used them for religious worship. Defendants did not have and could not obtain permits to possess the parts and feathers because they are not members of federally-recognized Indian tribes.

The Appeals Court concluded, "In Antoine we held that individuals like Defendants who are not members of federally-recognized tribes did not have valid claims that their prosecutions under BGEPA violate RFRA. 318 F.3d at 924. Neither removal of bald eagles from the Endangered or Threatened Species List, the Supreme Court’s decision in O Centro Espirita, nor the government’s eagle recovery methods undermine this holding. The district court correctly denied Defendants’ motion to dismiss the information in reliance on the continued viability of Antoine."

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USA v. FMC Corporation

Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35429. As explained by the Appeals Court, in the late 1990s, Plaintiff United States and Intervenor Shoshone-Bannock Tribes (the Tribes) approached Defendant FMC Corporation, a mining company operating in Idaho, about potential violations of Federal and tribal environmental laws. FMC reached an agreement with each party. FMC agreed to pay the Tribes $1.5 million per year in lieu of applying for certain tribal permits. Concerning federal law, FMC and the United States entered into a detailed agreement (Consent Decree), which they presented to the federal district court for approval. The district court approved the Consent Decree, and the Ninth Circuit affirmed. United States v. Shoshone-Bannock Tribes (FMC Corp.), 229 F.3d 1161 (9th Cir. 2000) (unpublished disposition).

In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the Consent Decree in district court. The district court held that the Tribes could enforce the Consent Decree as third party beneficiaries and that the Consent Decree required FMC to apply for tribal permits. FMC appealed.

The Ninth Circuit determined that the Tribes lacked standing to enforce the Consent Decree and, therefore, vacated the district court’s orders and remanded the case with instructions to dismiss the action.

In a closing note the Appeals Court said, ". . .during the pendency of this appeal, FMC began the process of applying for tribal permits, which is the main relief that the Tribes have sought in this action. At oral argument, the Tribes expressed their concern that, if we were to hold that the Tribes lack standing to enforce the Consent Decree, FMC would withdraw its permit applications and undo the progress made to date on the proper resolution of this dispute. In response to questioning from the panel, FMC’s lawyer represented to the court that FMC understands that it has the obligation to continue, and will continue, with the current tribal proceedings to their conclusion. We accept that statement from counsel as binding on FMC."

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Friday, June 27, 2008

Coos County Board of County Commissioners v. Kempthorne

Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35634. In summary form, the Appeals Court says, "We are asked to decide whether the Fish and Wildlife Service (FWS) has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the ESA or the Act), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty."

The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. The murrelets living in Washington, Oregon, and California (the tri-state murrelets) are the protected population.
The tri-state murrelets, and only the tri-state murrelets, were listed under the ESA as a “threatened species,” after the detailed consideration required by the statute. The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, but determined that they nonetheless remained threatened.

Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for “promptly publishing” proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. The Ninth Circuit disagreed.

In a 40-page opinion, the Appeals Court concludes, "In sum, our view of Coos County’s suit resembles that of the court in Wyoming v. U.S. Dep’t of the Interior, which also considered an attempt to avoid the petition process through an effort to establish a “mandatory duty to delist” by other means. We are “at a loss to explain the actions of [Coos County].” It could easily have filed a delisting petition -- years ago. 'This action, if it had been taken, would have forced the Federal Defendants to make choices under hard deadlines set by Congress . . . . and much of the Federal Defendants’ arguments presented here would have melted away, allowing this Court to reach the merits of many of [Coos County’s] claims.' If Coos County wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it."

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Thursday, June 26, 2008

Lands Council v. Martin (U.S. Forest Service)

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35804. As explained by the Appeals Court, a forest fire burned thousands of acres of national forest in southeastern Washington. The U.S. Forest Service initiated a salvage logging operation, and the Appeals Court was called upon to determine whether the Forest Service took the requisite “hard look” under the National Environmental Policy Act of 1969 (NEPA), and whether it complied with the National Forest Management Act of 1976 (NFMA).

Plaintiffs, The Lands Council, Oregon Wild, Hells Canyon Preservation Council, and Sierra Club, which are environmental organizations, appealed the district court’s grant of summary judgment to the Defendants Forest Service and the Forest Supervisor of the Umatilla National Forest. American Forest Resource Council, Boise Building Solutions Manufacturing, L.L.C., and Dodge Logging, Inc., which are a forestry advocacy organization and logging companies, joined Defendants as intervenors.

The Appeals Court ruled that the Forest Service failed to include an adequate discussion of the effects of proposed logging on two significant roadless areas; however, it otherwise affirmed the decision of the district court in favor of the Forest Service. In summary, the Appeals Court concluded in part that, ". . . the Forest Service was required to discuss the effects of the proposed logging on the roadless character of both roadless areas. Smith [Smith v. United States Forest Service, 33 F.3d 1072 (9th Cir. 1994)] held that the size of an uninventoried roadless area must be considered in combination with the size of any contiguous inventoried roadless area. The size of Upper Cummins Creek combined with the size of contiguous Willow Springs is more than 5,000 acres. We make clear today that the rule in Smith applies to roadless areas that are either greater than 5,000 acres or of a “sufficient size” within the meaning of 16 U.S.C. § 1131(c). The West Tucannon roadless area falls within the scope of that rule. . ."

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Thursday, June 19, 2008

Gulf Fishermen's Association v. Carlos M. Gutierrez (Commerce Secy)

Jun 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-12903. Appellant, the Gulf Fishermen’s Association (GFA), appealed the district court’s order granting the Appellees’ (Department of Commerce, NOAA National Marine Fisheries Service) motion for summary judgment for lack of jurisdiction. The district court held that the GFA’s complaint was time-barred under the limitations provision of the Magnuson-Stevens Fishery Conservation and Management Act (the Act). On appeal, the GFA argued that its suit challenging Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) was timely under the judicial review provisions of the Act, 16 U.S.C. § 1855(f), because it was filed within thirty days after an action by the Secretary of Commerce (the Secretary).

The Appeals Court indicated that, "By its own terms, the Act permits a challenge to a regulation implementing a fishery management plan so long as it is filed within thirty days after the publication of the regulation or an action by the Secretary
under that regulation. Because the GFA filed its challenge to Amendment 18A nine days after the Federal Register published a Secretarial action implementing that regulation, we find the suit was timely and reverse the district court’s grant of summary judgment for lack of jurisdiction."

Explaining further, the Appeals Court said, "After reviewing both the text and the legislative history of § 1855(f), we hold that a petition filed within thirty days of the publication of a Secretarial action, as defined in § 1855(f)(2), may challenge both the action and the regulation under which the Secretarial action is taken. In this case, the Secretarial action to delay the effective date of the VMS [Vessel Monitoring System] requirement was an 'action' taken under Amendment 18A. Because this action was published in the Federal Register on December 6, 2006, and the GFA filed its complaint on December 15, 2006, we conclude that the complaint was timely-filed under the limitations period of 16 U.S.C. § 1855(f). The district court thus erred in granting the Appellees’ motion for summary judgment for lack of jurisdiction."

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Wednesday, June 11, 2008

Boston Gas Company v. Century Indemnity

Jun 10: In the U.S. Court of Appeals, First Circuit, Case No. 07-1452. As explained by the Appeals Court, this is a dispute between Boston Gas Company (Boston Gas), the largest provider of natural gas in the New England area, and one of its insurers, Century Indemnity Company (Century). Before natural gas became the primary source of energy in New England, Boston Gas produced gas fuel at facilities called manufactured gas plants (MGPs). The MGPs created gas by heating coal in large ovens, generating gas which was then purified and piped out for use. The process also produced a variety of byproducts, including ash, drip oil, tar and coke. Many are non-biodegradable and some are deemed carcinogenic, and they now contaminate the ground and water around many former MGP sites; further, MGPs were often sited near waterways which were contaminated in turn. Contamination has been discovered at twenty-nine former Boston Gas MGPs; this case concerns only one of those sites, located in Everett, Massachusetts.

At trial, the jury awarded Boston Gas over $6.1 million in past remediation expenses; the district court also issued a declaratory judgment obligating Century to pay all future costs associated with the investigation and environmental cleanup of the Everett site. Century now appeals on multiple grounds from the district court's judgment.

Among other conclusions, the Appeals Court said, "We conclude that as to future costs, Century cannot reargue matters that have already been decided, but conversely, Boston Gas cannot properly seek to recover for future costs spent purely to remediate its own property where no threat exists of contamination outside the site. The district court will be able to determine the scope of litigation when a dispute arises, using doctrines like collateral estoppel, waiver, and the like to prevent relitigation of matters that have been, or could have been, decided.

"By its literal terms the declaratory judgment could be read to encompass costs that are not recoverable under Century's policy; the district court may not have considered that requiring Century to indemnify Boston Gas for all costs related to 'investigation and cleanup' may apply more broadly than it intended. On remand an adjustment is needed in order to clarify that Boston Gas' entitlement extends only to costs incurred for remediation not barred by the terms of Century's policies and consistent with the findings of the jury." Additionally, the Appeals Court certified three questions concerning allocation of liability to the Massachusetts Supreme Judicial Court for its consideration.

Access the complete opinion (
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Tuesday, June 10, 2008

Norton Construction v. U.S. Army Corps

Jun 2: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3826. The appeal involved plaintiff Norton Construction Company’s application for a permit to construct a new landfill in an area subject to defendant United States Army Corps of Engineers’ jurisdiction. The Corps refused to process the application, citing a Congressional appropriation act that the Corps construed as forbidding it from processing applications for new landfills in the area that it considered to be within the Muskingum Watershed. Norton unsuccessfully challenged the decision in district court. The district court ruled that the Corps reasonably interpreted the statute and that the law did not violate Norton’s constitutional rights. Norton appealed the decision and the Sixth Circuit affirmed the district court decision.

Norton applied for a Section 404 permit, but the Corps returned the application without acting upon it because Congress enacted a temporary appropriations rider, which in the opinion of the Corps, prohibited the Corps from processing its application. Subsequently, Congress passed and the President signed the Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, 119 Stat. 2247 (2005). Section 103 of the Act, enacted as a regular appropriations statute rather than as a temporary appropriations rider, prohibited the Corps from granting new landfill applications, "In order to protect and preserve the integrity of the water supply against further degradation," in the “Muskingum Watershed.”

The Appeals Court indicates that the case was made more difficult by its "ever-changing legal landscape." At first, by means of a temporary appropriations rider, Congress prohibited the processing of new landfill applications in the area of the Muskingum Watershed. Later, Congress reenacted this prohibition as part of a nonexpiring appropriations statute, thus prompting the current suit. Finally, while the present appeal was pending, Congress acted yet again by passing the Consolidated Appropriations Act of 2008. The Appeals Court explains that under different arguments it would still affirm the district court ruling and concludes "that declaring the case moot and again remanding for reconsideration in light of the latest statute would be a futile exercise and a needless waste of valuable judicial resources."

Humane Society Of The U.S. v. Kempthorne

Jun 3: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 06-5396 & 06-5397. Dirk Kempthorne, Secretary of the United States Department of the Interior (Secretary), the Fish and Wildlife Service (FWS) of the Department of the Interior (Interior) and H. Dale Hall, Director of the FWS (collectively Federal appellants), together with the Safari Club International and Safari Club International Foundation (collectively Safari Club), appeal the district court judgment enjoining the FWS “from authorizing the lethal take of any more gray wolves for depredation control purposes” by the Wisconsin Department of Natural Resources (Wisconsin DNR).

The Humane Society of the United States (Humane Society) and other environmental organizations had sought the injunction because, in their view, the gray wolf, as an endangered species, could not be the object of a lethal depredation control program under the Endangered Species Act (ESA). The district court agreed. While the appeal was pending, Interior removed the gray wolf
population located in the Western Great Lakes Region (which includes Wisconsin) from the endangered species list [72 FR 6052, 2/8/07. The parties agreed that the delisting moots the appeal.

The Federal appellants and the Safari Club have moved to vacate the district court judgment and the Humane Society opposes vacatur. The Appeals Court granted the appellants’ motion and vacated the district court judgment saying, ". . .vacatur was sought by non-governmental intervenors. And 'because the party seeking appellate relief is not the party responsible for mooting the case, the orderly operation of the appellate system is not being frustrated.'"

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Monday, June 9, 2008

Natural Resources Defense Council v. EPA

Jun 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1053, Natural Resources Defense Council (NRDC) v. U.S. EPA, with American Chemistry Council intervenor. In short summary the Appeals Court explains that synthetic organic chemicals have few direct consumer uses, but they often serve as raw materials in the production of plastics, rubbers, fibers, protective coatings, and detergents. Petitioners, the NRDC and the Louisiana Environmental Action Network (LEAN), challenged EPA’s "residual risk" rulemaking under subsection 112(f) of the Clean Air Act for facilities that use or produce synthetic organic chemicals (the industry). Petitioners also challenged EPA’s technology review under subsection 112(d)(6). The Appeals Court said, "In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners’ challenge. We deny the petition."

Explaining further, after submitting a required report to Congress in 1999, EPA commenced residual risk rulemaking, apparently because it read the statute as requiring a rulemaking proceeding to consider whether to revise the technology-based standards, since the industry’s emissions pose lifetime excess cancer risks of "greater than one-in-one million."

In the notice of proposed rulemaking, EPA listed two options for the residual risk rulemaking, one of which would have imposed somewhat stricter standards. But the other, which EPA adopted in the final rule, was a reaffirmation of the existing rule. EPA determined that under the existing technology-based standard, no individual would face "an excess lifetime cancer risk of greater than 100-in-one million," which EPA regards as the “presumptively acceptable” level under its precedents.

In the same regulatory procedure, EPA sought to satisfy another statutory requirement, subsection 112(d)(6), which commands the Administrator to “review, and revise as necessary” the technology-based standards in light of technological developments at least every eight years. It concluded there were no such developments.

In conclusion, the Appeals Court said, "In sum, petitioners’ arguments boil down to one simple point: EPA could have used better data in conducting its risk analysis. Whether or not this is true, it misstates the inquiry under the arbitrary and capricious standard. . . In other words, the sole question before us is whether EPA has acted reasonably, not whether it has acted flawlessly. On the record before us, EPA explained why it chose to rely on industry-supplied data, and it reasonably responded to petitioners’ objections to its data analysis. . ."

In response, NRDC issued a release saying the court "upheld the Environmental Protection Agency’s refusal to protect American families from cancer risks posed by the chemical industry." NRDC said as a result it is launching a campaign "to force EPA to re-open scores of toxic air pollution regulations to correct public health and legal deficiencies identified by prior court rulings." NRDC said, “We are disappointed that the court sided with EPA’s refusal to protect the American people from cancer-causing toxic air pollution. While the Bush EPA will celebrate this perverse victory for polluters, today’s ruling is a loss for the American people and the fight against cancer.”

In the coming weeks, NRDC said it will submit a formal legal petition to the EPA Administrator demanding that EPA conduct rulemakings to strengthen the vast majority of existing toxic air pollution regulations that suffer from "common legal and health deficiencies. . . One such regulation is the 1994 rule governing the chemical industry that was part of the backdrop for today’s court decision." They said that previous lawsuits brought by NRDC and other environmental groups, have produced a series of court rulings from 2005-2007 that found the "EPA-created defects to be squarely in violation of the Clean Air Act."

The American Chemistry Council (ACC) applauded the decision. ACC President and CEO Jack Gerard said, “We are thrilled by the unanimous decision made by the panel judges. The business of chemistry represents the gold standard in responsible product management and is committed to continual emissions improvement. ACC helped defend EPA’s decision and we are pleased that the agency’s determination, based in sound science, was upheld.” ACC indicated that EPA’s 2006 residual risk and technology review rule was largely based on emissions data submitted by ACC member companies. ACC indicated that, "The rule affirmed that the application of maximum achievable control technology since 1994 has resulted in a substantial reduction of hazardous air pollutant emissions from the synthetic organic chemical manufacturing industry.

Access the complete 18-page opinion (
click here). Access a release from NRDC (click here). Access a release from ACC (click here).

Miami-Dade County v. EPA

Jun 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-10551, 10-574- 76, 10579, 10583. Miami-Dade County, four cities, and a regional wastewater treatment facility and the Sierra Club all petition for review a Final Rule promulgated by U.S. EPA that amended the current Federal underground injection control (UIC) requirements for Class I municipal disposal wells in Florida. The petitioners argued that the Final Rule conflicts with the plain language of the authorizing statute, that EPA’s approach to UIC regulation in South Florida is arbitrary and capricious, and that EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act (APA). The Eleventh Circuit denied the petition.

Some of the many arguments raised by the petitioners include the following. The Sierra Club said EPA impermissibly considered the utility of underground injection of waste in comparison with other disposal options, and EPA failed to address the existence of several potential threats to human health posed by pathogens, nutrients, and other contaminants. The Municipalities and County complained that the Final Rule failed to take into account differences in Florida geology and hydrology. The County also argued that the Final Rule’s imposition of a high-level disinfection requirement, as opposed to some lower level of
disinfection, is arbitrary and capricious.

The Municipalities also argued that the Final Rule is not supported by the record due to four alleged flaws in the Risk Assessment’s methodology: (1) failure to consider the concentration of contaminants already present in the aquifers, (2) failure to employ a quantitative probabilistic risk analysis methodology, (3) failure to consider the results of a then-unpublished University of Miami study of well disposal practices, and (4) faulty assumptions about contaminant plumes. The criticisms were based on a review of the Risk Assessment performed by two scholars, a geologist, and a public utilities manager.

In a 49-page decision the Appeals Court said, "We conclude that the EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the Final Rule to new Class I wells as required by the APA. We further conclude that the petitioners have failed to show that the Final Rule is inconsistent with the statutory authority granted the EPA under the SDWA or that the Final Rule is unsupported by the record, or otherwise arbitrary and capricious."

Access the complete opinion (
click here).