Tuesday, May 19, 2009

Tucson Herpetological Society v. Salazar (Interior Dept.)

May 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16641. Conservation organizations and individual biologists (collectively Plaintiffs) contend that the Secretary of the Interior’s (the Secretary) decision to withdraw a rule proposing that the flat-tailed horned lizard (the lizard) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (ESA or the Act), and the Administrative Procedure Act (APA). They appeal from the district court’s order granting summary judgment in favor of the Secretary. In a partially split decision the majority Appeals Court reversed in part and remanded.

Plaintiffs objected to the Secretary’s assertion that a Conservation Agreement and management strategy have diminished threats to the lizard’s remaining habitat on public lands, and emphasize the management strategy’s slow and still incomplete implementation. The Appeals Court said the Secretary acknowledges that the Conservation Agreement has not yet been fully implemented, but points to specific conservation benefits that the agreement has achieved since it came into being in 1997. Moreover, the Appeals Court said, the 2003 withdrawal states that its assessment of threats to the species’ current range is not “dependent on full implementation” of the Conservation Agreement’s management strategy. The Appeals Court concluded that "the limited benefits that the 2003 withdrawal points to are supported by the record, and the Secretary did not err in taking the Conservation Agreement into account."

Additionally, Plaintiffs argue that OHV (off-highway vehicle) use in the lizard’s current range presents a much greater threat to the species than the Secretary acknowledges. The majority said, "Plaintiffs’ argument, however, relies on inferences from indeterminate scientific evidence. . . Both Plaintiffs and the Secretary point to scientific studies supporting their respective views on the effects of OHVs, but the merits of the conflicting studies is not a proper subject for this court to resolve." The court relied on the precedent saying "We must defer to the agency’s interpretation of complex scientific data."

Finally, Plaintiffs challenge the Secretary’s treatment of scattered threats posed by energy and mineral development projects, increased Border Patrol activity, and the possible construction of large-scale infrastructure projects in the lizard’s current range. The majority said, "Plaintiffs’ arguments follow the same course as their attack on the agency’s analysis of OHV use. In short, they have not presented conclusive evidence to rebut the Secretary’s determination that such threats, either alone or in concert, are not likely to cause the 'destruction, modification, or curtailment of [the species’] habitat or range.'"

Accordingly, the Appeals Court ruled, ". . .we reverse and remand the judgment of the district court with instructions that the matter be further remanded to the Secretary so that the Secretary can again consider whether to withdraw the proposed listing of
the lizard."

Access the complete opinion (
click here).

Friday, May 15, 2009

Center For Biological Diversity v. Marina Point

May 14: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-56193, 07-55243 & 07-56574. In the case, Marina Point Development Associates, et al (collectively Marina Point) appeal the district court’s judgment on the merits in favor of Center for Biological Diversity and Friends of Fawnskin (collectively the Center) on their claims under the Clean Water Act (CWA), and under the Endangered Species Act (ESA). Marina Point also appealed the district court’s order awarding attorney fees to the Center and the district court’s contempt order. In a partially split decision (on Justice concurring in part and dissenting in part), the Appeals Court vacated the district court’s judgment on the merits and instructed it to "dismiss for lack of jurisdiction." Additionally, the Appeals Court reversed the contempt order and vacated the order awarding attorney fees.

The case involved the bald eagle and protections as it was listed under the ESA. However, the Appeals Court said, "Now that the bald eagle has been delisted, nothing we decide can properly give the Center the relief it sought. If the district court erred, the injunction must fall, but if the district court was correct, the injunction must still fall because no activities by Marina Point could constitute a take within the meaning of the ESA. In fact, in a letter to this court, the Center has conceded mootness."

In its conclusion, the majority said, "The district court determined that Marina Point had violated the CWA and had either violated or would violate the ESA. . . However, because it lacked jurisdiction over the CWA claims and because the ESA claims have become moot, we vacate its judgment and remand with directions to dismiss for lack of jurisdiction. Concomitantly, we reverse the contempt order. We also vacate the award of attorney fees to the extent that it is based upon the CWA and remand so that the district court can determine what portion of the attorney fee award was based upon the ESA and reenter judgment as to that portion only."

Access the complete opinion (click here).

Thursday, May 14, 2009

Attorney General for Oklahoma v. Tyson Foods, Inc

May 13: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-5154. The case, involving dozens of attorneys, is an interlocutory appeal of a denial of a motion for a preliminary injunction issued by an Oklahoma district court in September 2008. The motion arose out of a 2005 complaint filed by Plaintiffs-Appellants (collectively referred to as Oklahoma) against Defendants-Appellees (collectively referred to as Tyson Foods), which alleged various State and Federal environmental claims.

Pursuant to that complaint, on November 14, 2007, Oklahoma filed its motion for a preliminary injunction under the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. § 6972(a)(1)(B), seeking to enjoin Tyson Foods from “(1) applying poultry waste to any land within the [Illinois River Watershed (IRW)] and (2) allowing the application of poultry waste generated at its respective poultry feeding operations and/or the respective poultry feeding operations under contract with it to any land within the IRW.” The district court denied the preliminary injunction on September 29, 2008, and the Appeals Court affirmed the denial.

The majority Appeals Court, in this partially split decision (dissent in part, concur in part), said in conclusion, "In its opinion and order denying a preliminary injunction, the district court stated that 'the State has not yet met its burden of proving that bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources . . . . As a result, the State has failed to meet the heightened standard for a preliminary injunction . . . .'

"The district court set out the standard for granting a preliminary injunction, determined that the requested injunction required a heightened showing of the four factors, and then indicated that it did not find Oklahoma’s two expert witnesses on the source of bacterial pollutants in the IRW to be sufficiently credible. . . Therefore, the court held, Oklahoma could not establish causation, and thus by implication Oklahoma could not establish a likelihood of success on the merits of its RCRA claim.

"We certainly agree that the district court’s order could have been more explicit, but the grounds for the district court’s decision are sufficiently apparent to allow us to conduct appellate review, namely, it allows us to determine (1) the legal standards employed, (2) whether the findings have sufficient evidentiary support, (3) whether the legal conclusions follow from those findings, and (4) whether the legal conclusions support the grant or denial of relief. Thus, even if this court did find that the district court failed to comply with Federal Rule of Civil Procedure 52(a), the error would be harmless and a remand for clarification would not be necessary because we can ascertain from the record the basis for the denial. . . The district court, based on the evidence presented, simply could not establish a sufficient link between land-applied poultry litter and bacteria in the IRW, and therefore preliminary injunctive relief was not appropriate."

Access the complete opinion (click here).

Wednesday, May 13, 2009

Daisy Abdur-Rahman v. John Walker

May 11: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12345. The appeal presents the question whether reports by compliance inspectors of a water and sewer department that “owe[ their] existence” to investigative duties assigned to the inspectors are protected by the First Amendment from managerial discipline. The Appeals Court cites Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006).

Daisy Abdur-Rahman and Ryan Petty, inspectors formerly employed by the Department of Public Works of DeKalb County, Georgia, appeal a judgment on the pleadings against their complaint and in favor of their former supervisors, John Walker and Chester Gudewicz Jr. The inspectors complained that their employment was terminated in retaliation for reporting to their supervisors about the compliance of the county with the Clean Water Act, in violation of rights secured by the whistleblower provision of the Act, 33 U.S.C. §1367(a), and the First Amendment, 42 U.S.C. § 1983. The inspectors’ reports to their supervisors were based on investigations of sewer overflows the inspectors performed as part of their assigned duties.

The district court concluded that section 1983 does not provide a private right of action for violations of the Clean Water Act and the job-related reports of the inspectors were not citizen speech protected by the First Amendment. In a split, 2-1 opinion, the Appeals Court affirmed the district court decision.

The majority explained further, "At every turn, the argument of the inspectors is incompatible with the precedents of our Court and the Supreme Court that limit the claims of government employees under the First Amendment to citizen speech on matters of public concern. To remain faithful to these precedents, we must review the whole record, and we cannot focus exclusively on whether the inspectors were required to speak. We cannot separate the statements the inspectors made from the official responsibilities to which those expressions were related. We affirm the judgment that the inspectors’ complaint under the First Amendment fails as a matter of law."

The dissent indicated, "I dissent, believing that the majority has misapplied First Amendment principles to the facts of this case. . . the sacrifice of First Amendment rights by public employees in the interest of managerial efficiency is the exception, not the rule. To that end, the Supreme Court has ensured the broadest possible First Amendment protection for public employees by, among other things, holding specifically that the government’s managerial interests do not necessarily outweigh the rights of the employee to speak on a matter of public concern simply because the speech relates to his or her employment, nor, for that matter, because he speaks to his co-workers or supervisors rather than to the public. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 420-21 (2006)."

Access the complete opinion (
click here).

Wednesday, May 6, 2009

Miccosukee Tribe of Indians of Florida v. USA

May 5: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10799. The case involves what the Appeals Court says is one of the Corps of Engineers "unplanned environmental consequences” of its efforts to control the “river of grass” or the Everglades, of South Florida that flowed south from Lake Okeechobee to the Florida Bay. More specifically, the case involves the Cape Sable seaside sparrow (the sparrow) that lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels.

One of the sparrows subpopulations has decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps’ method of releasing water into the Everglades has been blamed for that decline. Also, at risk is the Everglade Snail Kite, a type of hawk, that was also listed as endangered in 1967 and received critical habitat designation in 1977. During a period of regional drought, Florida’s total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The problem, of managing the two habitats is that the kites prefer steady and moderate to low water levels above one of the control gates (S-12), while the sparrows prefer low water below the S-12 gates.

The Corps and the Fish & Wildlife Service, consult with each other on habitat management and when a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a “biological opinion” determining whether the action would jeopardize the species. Following the development of Corps plans and biological opinions the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging the Interim Plan.

The Court of Appeals ruled that, "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion."

Access the complete opinion (click here).

Tuesday, May 5, 2009

High Court Rules 8-1 On Superfund Liability Issues

May 4: The U.S. Supreme Court decided the consolidated cases of Burlington No., & Santa Fe R. Co., v. United States, (Docket No. 07-1601); and Shell Oil Co., v. United States (Docket No. 07-1607) on appeal from the U.S. Court of Appeals, Ninth Circuit [See WIMS 2/25/089]. The 8-1 opinion was delivered by Justice Stevens and supported by Justices Roberts, Scalia, Kennedy, Souter, Thomas, Breyer and Alito. Justice Ginsburg filed a dissenting opinion. In these cases involving cleanups under the Comprehensive, Environmental, Response, Compensation, and Liability Act (CERCLA), the High Court explained that the cases "raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation."

The law allows the government to obtain reimbursement for the costs of remediating hazardous waste sites from the owners and operators of land on which a disposal of hazardous substances has occurred. However, because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In the Burlington case, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation. In the Shell Oil case, the questions presented are whether liability for "arranging" for disposal of hazardous substances under CERCLA may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product.

In the Ninth Circuit, the final opinion concluded, "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."

The Supreme Court concluded, "that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed, and the cases are remanded for further proceedings consistent with this opinion." In her dissent, Justice Ginsburg said, "Although the question is close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the. . . CERCLA."

Access the complete 23-page majority opinion and dissent (
click here). Access the transcript of the oral arguments (click here). Access the Supreme Court docket for 07-1601 (click here). Access the Supreme Court docket for 07-1607 (click here). Access the various merit and amicus briefs filed by the parties (click here, scroll down to February 24). Access more information on the SCOTUS Wiki (click here). Access links to various media reports on the case (click here).

Monday, May 4, 2009

Natural Resources Defense Council, Inc. v. FAA

May 1: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5267. The Panama City-Bay County Airport and Industrial District (the sponsor), a state-chartered entity that owns and operates Panama City-Bay County International Airport proposed to close the existing airport at Panama City FL and to construct a new airport in western Bay County (the West Bay Site). Pursuant to the Airport and Airway Improvement Act (AAIA), the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration (FAA).

Petitioners Natural Resources Defense Council et al (NRDC) challenged the FAA's decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), and requested that the court enjoin the FAA from implementing its decision. The Appeals Court concluded that, "Because the FAA's decision is not 'arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law,' we deny the petition for review and the relief sought therein."

Access the complete opinion (click here).