Sunday, April 25, 2010
Apr 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-2211. Petitioner-Appellant Copar Pumice Company, Inc. (Copar), proceeding under the Administrative Procedure Act, (APA), appeals the district court's denial of its petition for review concerning the Notice of Noncompliance that the United States Forest Service (FS) issued to Copar
concerning its pumice mining activities. The Appeals Court affirmed the district court's denial.
By way of background, Copar operates the El Cajete pumice mine on four unpatented mining claims located within the Jemez National Recreation Area in New Mexico. Pursuant to a written settlement agreement with the FS, Copar may extract pieces of pumice in excess of 3/4 inches in size "subject to all pertinent statutes and regulations." Copar's +3/4" pumice is an "uncommon variety" of pumice that has a distinct and special value as a stonewashing agent in the garment finishing industry: the pumice "abrade[s] denim fabric, especially jeans, by creating a worn look on new denim fabric."
After El Cajete mining operations began, the FS learned that Copar was not exclusively selling its +3/4" pumice to the garment finishing industry; rather, Copar was selling some of its +3/4" pumice to other industries for common variety uses. The FS claimed that this practice violated the applicable regulations, as well as the settlement agreement. Copar disagreed, and the FS eventually issued Copar a Notice of Noncompliance.
The Appeals Court ruled, "Copar acknowledged in the settlement agreement that it had no right to extract common variety pumice from El Cajete. Because it was not arbitrary and capricious for the FS to conclude that the portion of Copar's +3/4" pumice that is not destined for the garment finishing industry is common variety pumice, Copar had no right to extract common variety pumice, and therefore no taking occurred."
Access the complete opinion (click here).
Thursday, April 22, 2010
Apr 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 05-2399, 06-2020 & 06-2021. The Appeals Court sets the stage saying, "This case involves one battle in a prolonged war over a finite and elemental resource -- Rio Grande water. The needs of the plants and animals that depend upon this water for survival are in tension with the needs of the human inhabitants of the Middle Rio Grande Valley (the Valley) who depend upon the water for daily living and commercial and agricultural activities."
Alleging that the Bureau of Reclamation (Reclamation) failed to properly maintain the delicate balance between these counterpoised needs to the detriment of several endangered species, Defenders of Wildlife, Forest Guardians, National Audubon Society, New Mexico Audubon Council, Sierra Club, and the Southwest Environmental Center (the Environmental Groups) sought relief in federal court pursuant to the Endangered Species Act (ESA). Directly at issue is whether Reclamation has discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow (Minnow). The Environmental Groups claim that Reclamation does and that its failure to weigh that discretion in its consultations with the U.S. Fish and Wildlife Service (the FWS) violated § 7 of the ESA.
The majority Appeals Court said in a split ruling, "At the outset, we commend the district court. When confronted with an extended and sometimes acrimonious dispute between bitterly opposed and firmly entrenched interests, it acted impartially, thoughtfully, and thoroughly. We are constrained, however, to disagree with the district court and conclude that intervening events have mooted the Environmental Groups' scope-of-consultation claim under the ESA. We also conclude that the district court erred in denying the appellants' motions for vacatur. . . we dismiss the appeal and remand to the district court to vacate its memorandum opinions and orders of April 19, 2002, September 23, 2002, and November 22, 2005, and to dismiss the Environmental Groups' complaint with regard to their scope-of-consultation claim under the ESA."
In a lengthy dissenting opinion one Justice said, "I believe this case is more than a simple battle about allocating resources between the silvery minnow (and analogously situated plants and animals) and humans. There are a variety of options available,
and the Supreme Court and Congress recognize that 'the value of endangered species [is] incalculable.'"
Access the complete opinion and dissent (click here).
Tuesday, April 13, 2010
Apr 12: In the U.S. Court of Appeals, Third Circuit, Case No. 09-1814. The appeal arises from nearly three decades of involvement by U.S. EPA at the Boarhead Farms Superfund Site in Bucks County, Pennsylvania. At issue in the underlying case was the disposal of millions of gallons of toxic waste, over a six-year time period, by more than twenty parties, with millions of dollars of cleanup costs at stake. Along with the factual issues, the case implicates the "still developing distinctions" between liability under § 107(a) and § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and the Superfund Amendments and Reauthorization Act of 1986 (SARA),
codified together at 42 U.S.C. §§ 9601-9675 (collectively CERCLA).
On June 18, 2002, five plaintiffs -- Agere Systems, Inc. (Agere), Cytec Industries, Inc. (Cytec), Ford Motor Company (Ford), SPS Technology, LLC (SPS), and TI Automotive Systems LLC (TI) (collectively plaintiffs or appellees) -- filed the present suit against twenty-three defendants for cost recovery and contribution under CERCLA and the Pennsylvania Hazardous Sites Cleanup Act (HSCA), to recover costs that the plaintiffs had paid to the EPA pursuant to certain consent decrees or that they had provided as a consequence of the cleanup of hazardous substances at the Boarhead Site. All of the defendants except one, Carpenter Technology Corporation (Carpenter), settled their liabilities with the plaintiffs or were otherwise dismissed from the suit after a bench trial.
On August 22, 2008, the United States District Court for the Eastern District of Pennsylvania entered judgment against Carpenter, finding it liable for 80% of the costs paid by the plaintiffs as of December 31, 2007, plus prejudgment interest. The Court also entered a declaratory judgment that Carpenter is liable for 80% of all cleanup costs that the plaintiffs may incur after January 1, 2008. The District Court denied Carpenter's motion to alter or amend the judgment, and Carpenter filed this appeal.
The Appeals Court vacated the District Court's judgment and remand for proceedings consistent with its opinion. The Appeals Court made four request of the District Court in its reconsideration:  ". . .we ask the District Court to make a clear and unequivocal finding, if possible, as to when the EPA completed its removal action. To the extent the District Court decides it must reopen the record in order to make that finding, it may do so. . .  permit TI. . . and Agere. . . to go forward with their § 107(a) cost recovery claims to recoup costs paid as part of the shared expense of cleaning up the Boarhead Site. . .  . . .because we hold that Cytec, Ford, and SPS, as well as TI (with regard to OU-2), are shielded from contribution counterclaims under § 113(f)(2) and therefore do not have § 107(a) claims for costs incurred pursuant to the consent decrees, the District Court should again proceed solely under § 113(f) as to those claims. . .  while proceeding under § 113(f) to allocate liability among the parties, the District Court may not consider the June 23rd stipulation as evidence against Carpenter, at least not without addressing the evidentiary problems noted herein. . ."
With regard to item #1 above, the Appeals Court said, ". . .whether there is a time-bar to plaintiffs' recovering the approximately $7 million they paid to reimburse the EPA for past costs. Further, if the District Court finds that the EPA initiated 'on-site physical construction' of the remedial action within three years of the completion of its removal action, it may apply the six-year statute of limitations exception contained in § 113(g)(2)(B). If the District Court finds that the EPA's December 6, 2001 suit was not time-barred, and that the plaintiffs are able to recover for past costs, the Court should make a more exact finding as the amount that the plaintiffs paid to reimburse the EPA for past costs."
Apr 9: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-3158, appealed from the Southern District of Ohio at Columbus. Plaintiffs-Appellants appealed the district court's dismissal of their pre-enforcement challenge to the anti-animal-fighting provisions of the Animal Welfare Act (AWA), naming as defendants the United States, the Secretary and Department of Agriculture, the Attorney General and Department of Justice, and the Postmaster General and the United States Postal Service. The plaintiffs-appellants allege that these provisions are unconstitutional insofar as they "constitute a bill of attainder; violate the principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh Amendments to the United States Constitution; and unduly impinge on the plaintiffs-appellants' First Amendment right of association, constitutional right to travel, and Fifth Amendment right to due process for deprivations of property and liberty.
The district court dismissed the lawsuit for lack of Article III standing, a decision that the Appeals Court affirmed. The targeted provisions of the AWA are contained in § 2156, which places restrictions on cockfighting and other "animal fighting ventures,"
defined as "any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 3 animals for purposes of sport, wagering, or entertainment."
The Appeals Court explained and concludes that "By prohibiting the sale and transportation of chickens for fighting purposes, the AWA violates (or so the complaint argues) the plaintiffs' rights of travel and association, their 'rights to due process in the deprivation of their rights to property and liberty,' and their 'right to be free from bills of attainder' . . . In other words, the plaintiffs are correct that they need not actually violate the AWA in order to have standing. However, they still must demonstrate an injury-in-fact to a legally protected interest that is actual or imminent and that satisfies the other prongs of the constitutional standing test. The purported constitutional violations the plaintiffs allege do not satisfy this standard. . ."
Apr 6: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-60108. The Appeals Court explains that the petitioner, the Medina County Environmental Action Association (MCEAA), sought review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.
MCEAA petitioned the court directly for review of the Decision. At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS), complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County.
The Appeals Court denied MCEAA's petition for review of the Decision and also denied a separate motion to supplement the administrative record. The Appeals Court ruled, "The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler's habitat is marginalized or destroyed by what MCEAA refers to as the 'edge effects' of development -- for example, land clearing, noise, lighting, and vibration -- the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area -- rendering any analysis of whether the rail line and quarry activities would drive them out of that area superfluous.
"Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of 'low quality' habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider. Accordingly, we deny the motion to supplement the administrative record."
Thursday, April 1, 2010
Mar 30: In the U.S. Court of Appeals, Second Circuit, Case No. 09-0097. Defendants Suffolk County and the Suffolk County Department of Public Works, Division of Vector Control (County) employ various measures to combat the spread of mosquito-borne illnesses, including the use of pesticides intended to kill adult mosquitoes in mid-flight. Plaintiffs Peconic Baykeeper, Inc., Kevin McAllister and Alfred Chiofolo contend that the County violated the Clean Water Act (CWA), in its application of certain pesticides, and, separately, its dredging of mosquito ditches. Plaintiffs, who commenced this action under the CWA's citizen-suit provision, sought declaratory and injunctive relief, as well as civil penalties to be paid to the United States Treasury. Following a six-day bench trial, the district court found that the disputed mosquito-control activities were lawful under the CWA. Judgment was entered for the defendants, and plaintiffs appealed.
The Appeals Court made a three-part ruling and vacated the judgment of the district court insofar as it held that the defendants' spraying activities were uniformly in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq.; and vacated insofar as it held, in the alternative, that the trucks and helicopters used to spray the pesticides were not "point sources" for the purposes of the CWA; and, affirmed insofar as it held that the County's dredging activities did not violate the CWA.