Friday, November 7, 2008

Wildwest Institute v. Bull

Nov 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35044. The Appeals Court indicates that in this case it must decide whether the United States Forest Service complied with federal environmental law in its management of the Bitterroot National Forest in Montana. The case involves the Forest Service plan for deal with unburned fuels remaining in the area following a wildfire in the Forest in the summer of 2000, making the area a high-risk area for future wildfires.

The Forest Service considered: (1) a no-action alternative (“Alternative 1”); (2) its preferred alternative (“Alternative 2”); and (3) an alternative proposed by The Ecology Center and Native Forest Network (now known as the WildWest Institute), Friends of the Bitterroot, and the National Forest Protection Alliance (“Alternative 3”).

Specifically, WildWest asserts the Forest Service committed procedural violations by (1) irretrievably committing resources in favor of its preferred alternative before making its final decision, (2) failing to engage in adequate public collaboration, and (3) ignoring competing scientific views. Substantively, WildWest challenges the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation. Along with its complaint, WildWest moved for a temporary restraining order and preliminary injunction, primarily relying on its three procedural claims. The district court denied the motion, concluding in part that WildWest had made an insufficient showing that it was likely to prevail on the merits of such claims. The Appeals Court affirmed that motion [WildWest Inst. v. Bull, 472 F.3d 587 (9th Cir. 2006)].

Thereafter, the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the Forest Service defendants on all of WildWest’s claims. The district court ruled against WildWest on the merits of its claims, but it also held that the procedural claims were waived as WildWest only “summarize[d] those arguments as necessary to preserve them for appeal” because such claims were previously raised at the preliminary injunction stage. After the district court’s summary judgment ruling, WildWest moved for an emergency injunction pending appeal in the district court, which was denied. WildWest then made a similar motion in the Ninth Circuit court, which was also denied. In this latest action WildWest appealed the district court’s summary judgment ruling. The Ninth Circuit ruled, ". . . we conclude the Forest Service was properly granted summary judgment on all of the claims asserted against it by WildWest."

Access the complete opinion (
click here).

SBT Holdings v. Town of Westminster

Nov 6: In the U.S. Court of Appeals, First Circuit, Case No. 08-1512. Plaintiffs SBT Holdings, LLC, and its owners, Brian, Thomas, and Susan Foley, undertook a condominium real estate development project in the Town of Westminster, Massachusetts. After delays caused by environmental regulation demands by the Town, plaintiffs sued the Town, the Town of Westminster Conservation Commission, and various individuals. Suit was brought under 42 U.S.C. § 1983 alleging that the defendants, in violation of plaintiffs' equal protection rights, intentionally obstructed the development by taking certain actions, actions which a state court had found to be in violation of state law and in bad faith.

The district court dismissed plaintiffs' complaint for failure to state a claim. It held that the complaint failed to specify similarly situated others who were treated differently, a necessary element in an equal protection case. [See: SBT Holdings, LLC v. Town of Westminster, 541 F. Supp. 2d 405, 413 (D. Mass. 2008)]. The Appeals Court reversed the dismissal and remanded the case for further proceedings consistent with the opinion.

In its opinion the Appeals Court said, "Defendants' argument overlooks the relevant Massachusetts law. Since at least 1981, Massachusetts courts have recognized that conservation commissions are amenable to suit. See Hamilton, 425 N.E.2d at 366 (noting that local authorities may impose by bylaw or ordinance wetlands protections that are more stringent than state standards under section 40, but that 'where a taking is caused by the accomplishment of that purpose, it is the local authority which would bear the liability'). In addition, there are numerous cases where conservation commissions are parties and Massachusetts state courts dismissed claims for damages against them, but not on grounds they are not amenable to suit. . . Such actions have not been limited to takings claims and have included actions for damages."

Access the complete opinion (
click here).