Dec 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35463. The Appeals Court explains, "We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management [BLM] withdraws its challenged decision to conduct a timber sale." The "prevailing party" issue is important because Congress has passed many statutes to allow parties who sue the United States to recover attorney’s fees in certain circumstances, but only if they are the “prevailing parties” in the lawsuit. The Appeals Court cites: Buckhannon Bd. v. W.Va. Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001).
Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds (Klamath) sued the Bureau of Land Management of the United States Department of the Interior (BLM), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act (NEPA) and the Forest Lands Policy and Management Act (FLPMA). Klamath sought “a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and
attorneys fees.”
In this case, which has many nuisances, the Appeals Court rules, "In summary, we conclude that Klamath is not a prevailing party in this case because neither the stipulated order, the magistrate judge’s F&R, nor the binding ruling in Boody, a separate case, amounts to a 'material alteration of the legal relationship of the parties' that is 'judicially sanctioned,' as required in Buckhannon. For the foregoing reasons, the district court’s grant of attorney’s fees and costs to Klamath is reversed and vacated. The case is remanded for further proceedings consistent with this opinion.
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Wednesday, December 16, 2009
Monday, December 14, 2009
American Road & Transportation Builders v. EPA
Dec 11: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1381. The American Road and Transportation Builders Association (ARTBA) is a trade organization representing the “transportation construction industry” -- companies that build roads, public transit systems, airports and the like. In 2002 ARTBA petitioned the U.S. EPA to amend two regulations implementing § 209(e) of the Clean Air Act. EPA had originally promulgated the rules in 1994, and then readopted them in 1997. After some litigation over the Agency’s failure to act on ARTBA’s petition, EPA formally opened it to public comment in 2007, then rejected it in 2008.
Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."
Access the complete ruling (click here).
Shortly thereafter, ARTBA sought review in the D.C. Circuit Appeals Court. The Appeals Court dismissed dismiss the suit for lack of jurisdiction, on the grounds that National Mining Association v. U.S. Department of the Interior, 70 F.3d 1345 (D.C. Cir. 1995), "requires us to treat ARTBA’s petition to EPA as a challenge to the regulations it sought revised, and that judicial review of such a challenge is time-barred under Clean Air Act § 307(b)(1). . ." The Appeals Court dismissed the case saying, "We conclude that we are without jurisdiction to hear this petition."
Access the complete ruling (click here).
Friday, December 4, 2009
South Fork Band Council v. U.S. Department of Interior
Dec 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15230. This is an appeal from the denial of a preliminary injunction in an environmental challenge to a major gold mining project on the side of Mt. Tenabo in Nevada. The mountain has religious significance for Indian tribes. The plaintiffs-appellants are the South Fork Band Council of Western Shoshone of Nevada, and other tribes and organizations (the Tribes).
The Tribes originally filed this action against the United States Department of the Interior and its Bureau of Land Management (BLM) after BLM issued its final environmental impact statement approving the project. The project’s developer, Barrick Cortez, Inc., (Cortez) appeared as an intervenor and is also an appellee. The Appeals Court denied the Tribes’ emergency motion for an injunction pending appeal, but expedited the briefing and argument of the appeal.
The district court’s opinion devotes most of its consideration to claims brought under the Religious Freedom Restoration Act (RFRA). Those claims were not pursued on appeal. Instead, the claims allege violations of the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). In determining whether a preliminary injunction should issue, the Appeals Court said it is bound by the Supreme Court’s recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08].
The Appeals Court said it "must decide whether the Tribes have shown that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tips in their favor; and that an injunction is in the public interest. . . The Tribes must make each of these showings to be entitled to injunctive relief. . . To succeed on the merits of their action under the Administrative Procedure Act, the Tribes must show that BLM’s action was arbitrary and capricious or contrary to law. . ."
The Appeals Court ruled, "Given the thorough consideration of the project’s impact on the Tribes religion in the Environmental Impact Statement (EIS), which was approved after more than two years of study and consultation with the Tribes and with the public, we conclude that the Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims. We reverse the denial of injunctive relief on the NEPA claims, however, and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."
Further, the Appeals Court said, "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high. Indeed the district court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs. The resulting hardship asserted by Cortez and the government is cast principally in economic terms of employment loss, but that may for the most part be temporary. Given the narrow scope of our holding, which rejects the broader FLPMA contentions, the balance of hardship favors the appellants. As to the public interest, Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."
Access the complete opinion (click here).
The Tribes originally filed this action against the United States Department of the Interior and its Bureau of Land Management (BLM) after BLM issued its final environmental impact statement approving the project. The project’s developer, Barrick Cortez, Inc., (Cortez) appeared as an intervenor and is also an appellee. The Appeals Court denied the Tribes’ emergency motion for an injunction pending appeal, but expedited the briefing and argument of the appeal.
The district court’s opinion devotes most of its consideration to claims brought under the Religious Freedom Restoration Act (RFRA). Those claims were not pursued on appeal. Instead, the claims allege violations of the Federal Land Policy Management Act (FLPMA) and the National Environmental Policy Act (NEPA). In determining whether a preliminary injunction should issue, the Appeals Court said it is bound by the Supreme Court’s recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08].
The Appeals Court said it "must decide whether the Tribes have shown that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tips in their favor; and that an injunction is in the public interest. . . The Tribes must make each of these showings to be entitled to injunctive relief. . . To succeed on the merits of their action under the Administrative Procedure Act, the Tribes must show that BLM’s action was arbitrary and capricious or contrary to law. . ."
The Appeals Court ruled, "Given the thorough consideration of the project’s impact on the Tribes religion in the Environmental Impact Statement (EIS), which was approved after more than two years of study and consultation with the Tribes and with the public, we conclude that the Tribes have not satisfied their burden of showing a likelihood of success on the merits of their FLPMA claims. We reverse the denial of injunctive relief on the NEPA claims, however, and remand for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions."
Further, the Appeals Court said, "The likelihood of irreparable environmental injury without adequate study of the adverse effects and possible mitigation is high. Indeed the district court did not question the irreparable environmental harm threatened by this massive project, and that will be visited most directly on the plaintiffs. The resulting hardship asserted by Cortez and the government is cast principally in economic terms of employment loss, but that may for the most part be temporary. Given the narrow scope of our holding, which rejects the broader FLPMA contentions, the balance of hardship favors the appellants. As to the public interest, Congress’s determination in enacting NEPA was that the public interest requires careful consideration of environmental impacts before major federal projects may go forward. Suspending a project until that consideration has occurred thus comports with the public interest."
Access the complete opinion (click here).
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