Friday, August 14, 2009

Sierra Forest Legacy v. Rey

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. This complicated appeal and decision concerns three United States Forest Service (USFS) projects -- Empire, Slapjack and Basin -- that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. The Appeals Court said, "We must decide whether the district court abused its discretion by denying plaintiffs’ request to preliminarily enjoin the three projects."

USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas. Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.

The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.

In a previously filed opinion in this case, the Ninth Circuit held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008) [
See WIMS 5/14/09]. Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction.

Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.

"We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits -- irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested -- to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. . ."

Access the complete opinion (
click here).

Steven Pollack v. DOJ

Aug 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3857. The case involves a gun range that the United States government operates on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The Appeals Court affirmed the district court decision.

Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.

The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."

In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."

Access the complete opinion (
click here).