The Lands Council v. McNair (U.S. Forest Service)

Jul 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35000. The full panel of the Ninth Circuit (en banc) indicated that, "We took this case en banc to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service." The Lands Council and Wild West Institute (collectively, Lands Council) moved for a preliminary injunction to halt the Mission Brush Project (the Project), which called for the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forest (IPNF) claiming the Government had failed to comply with the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), in developing and implementing the Project. The district court denied Lands Council’s motion for a preliminary injunction. A three-judge panel of the Ninth Circuit reversed the district court’s decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007) [See WIMS 7/3/07]. The en banc Appeals Court vacated the 3-panel decision and affirmed the district court.

Unlike the 3-panel ruling which said the Lands Council ". . . demonstrated a probability of success on the merits and a possibility of irreparable injury [and] . . . further showed that the balance of hardships and the public interest favored granting the preliminary injunction. . ."; the en banc panel concluded, ". . . that Lands Council was not likely to succeed on any of its claims under the NFMA or NEPA. We also conclude that Lands Council has not shown that, if we allow the Forest Service to proceed with the Mission Brush Project, the balance of hardships tips sharply in its favor."

Access the en banc opinion (click here). Access the 3-panel opinion (click here).

Followell v. United States

Jul 3: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3017. Cheryl Followell, as executrix, brought the action on behalf of the estate of her deceased mother, Betty Gurley. Followell and Gurley Refining Company (GRC) appealed an order of the district court dismissing this action for failure to state a claim and the Appeals Court affirmed.

The Appeals Court cited the district court in saying that the dispute between Plaintiffs and U.S. EPA (EPA) has had, "a long and tortuous history" reaching back more than twenty years when the EPA filed a civil action in 1987 alleging Plaintiffs violated the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). During the course of the CERCLA litigation, William Gurley fraudulently transferred roughly $17 million in assets to Betty Gurley. After judgment was entered against him, he declared bankruptcy. The Appeals Court said, "For over a decade, William Gurley, Betty Gurley, and GRC have engaged in 'vexatious litigation' to prevent the EPA from collecting the debt." The Appeals Court said in a brief 3-page opinion, "the district court's conclusion res judicata precludes Plaintiffs' 'relitigation of a claim on grounds that were raised or could have been raised in the prior action.'"

Access the complete opinion (click here).