U.S. v. Wilderness Society

May 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-15596. As explained by the Appeals Court, this is a dispute over the status of a road on U.S. Forest Service land in Elko County, Nevada. The case was before the Ninth Circuit for the first time in 2002. See United States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At that time, the intervenor-appellant environmental groups wanted to object to the terms of a proposed settlement between the United States and Elko County that effectively allowed the County to repair the road. The Appeals Court ordered the district court to grant the motion to intervene.

The intervenor-appellants are now back, claiming that the district court disregarded the Appeals Court mandate by not permitting them to intervene in the Quiet Title Act portion of the suit that was the subject of the proposed settlement and therefore was the critical part of the litigation. The district court, after the Appeals Court decision, permitted the intervenor-appellants to appear only as amici during the settlement approval proceedings; it denied their motion to participate in an evidentiary hearing. After the hearing, the court ruled against their position on the merits without, in appellants’ view, permitting them adequate participation. The intervenor-appellants Appealed and requested the Ninth Circuit not only to vacate the approval so they can fully present their position, but they also request the Appeals Court to reach the merits and rule in their favor.

For their part, the United States and the County defend the settlement, contending that the intervenors’ participation was adequate because the district court properly, in appellees’ view, ruled that the intervenors lacked standing to participate as a party in the quiet title proceedings in light of their lack of any property interest in the disputed right of way for the road. The Appeals Court ruled, "pursuant to our earlier mandate, we hold that the district court must permit the intervenors to participate as parties in advocating their position in the Quiet Title Act action. We must vacate the settlement approval to effectuate that result. We also hold that the intervenors’ cross-claims are reviewable under the APA. The approval of the settlement of the Quiet Title Act claim is vacated, as is the district court’s order denying the appellants’ motion to intervene. The district court’s dismissal of the appellants’ cross-claims is reversed. The case is remanded for further proceedings consistent with this opinion."

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AES Sparrows Point v. Smith

May 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1615. AES Sparrows Point LNG, LLC and Mid-Atlantic Express, LLC (together, AES) brought the suit against Baltimore County, Maryland, its executive, and its zoning commissioner (together, the County) seeking a declaration that County Bill 9-07, which prohibits the siting of any liquefied natural gas (LNG) terminal in the County’s Chesapeake Bay Critical Area, is preempted by the Natural Gas Act (NGA). The district court granted summary judgment to the County, concluding that Bill 9-07 is saved from preemption because it "is within the delegated authority of the State of Maryland and the County under the Coastal Zone Management Act" (CZMA) and "is enforceable as part of the State of Maryland’s Coastal Management Program." J.A. 271, 284. AES appealed.

The Appeals Court overturned the district court ruling and said, "We hold that Bill 9-07 is not part of Maryland’s federally approved Coastal Zone Management Plan (CMP), and therefore is not saved from preemption as an exercise of Maryland’s rights under the CZMA. Accordingly, we reverse the judgment of the district court and remand for further proceedings."

The Appeals Court said "our inquiry must focus first on whether Bill 9-07 has been incorporated into Maryland’s CMP. The CZMA specifies the manner by which a state may amend its approved CMP. . . 'Amendment' for purposes of the CZMA is defined in 15 C.F.R. § 923.80(d) . . . We have no difficulty concluding that Bill 9-07 is an 'amendment' of Maryland’s CMP because it imposes a categorical ban on LNG terminals in the Chesapeake Bay Critical Area that the CMP did not previously contain. . .

"The County does not dispute that it has never presented Bill 9-07 to NOAA for approval as required by the CZMA. The CZMA makes clear, however, that the mere adoption of Bill 9-07 into the County’s CAPP by Maryland’s Critical Area Commission is not sufficient to make Bill 9-07 part of Maryland’s CMP. . . Until NOAA approves Bill 9-07 or fails to take action after being presented with it, it is not part of Maryland’s CMP and cannot be saved from preemption by the NGA’s Savings Clause. Therefore, Bill 9-07 is preempted by the NGA’s grant of exclusive authority to FERC 'to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal,' 15 U.S.C. § 717b(e)(1), and may not be enforced by the County to prevent the construction of an LNG terminal at Sparrows Point."

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