Thursday, August 19, 2010

U.S. v. Agosto-Vega

Aug 18: In the U.S. Court of Appeals, First Circuit, Case No. 09-1158 & 09-1159. This is a consolidated appeal from a jury verdict which found Appellants Braulio Agosto-Vega (Agosto) and Braulio Agosto Motors, Inc. (Agosto Motors) guilty of violating criminal provisions of the Clean Water Act (CWA). The principal issue presented is whether Appellants were deprived of their constitutional right to a public trial pursuant to the Sixth Amendment. The Appeals Court found that the District Court committed a structural error by excluding the public from the courtroom during the selection of the jury.
    The Appeals Court cited Presley v. Georgia, S. Ct. 721 (Jan. 19, 2010) and said, "We are thus required to vacate Appellants' convictions and remand their cases for a new trial. Nevertheless, considering that Appellants will have a new trial on the same charges, to prevent an allegation that they will be subjected to double jeopardy in violation of the Fifth Amendment by reason of this retrial, it is incumbent upon us to address Appellants' contentions that the government failed to present sufficient evidence at the first trial to allow the jury to conclude that they were guilty beyond a reasonable doubt of the charges presented against them. . . We conclude that the government proved the charges against Appellants by sufficient evidence to establish their guilt beyond a reasonable doubt.
    In Count One of the indictment charged Agosto with conspiracy to commit offenses against the United States. The CWA prohibits the "discharge of any pollutant" without a permit pursuant to the National Pollutant Discharge System. The knowing violation of this prohibition is a felony and CWA defines the discharge of a pollutant as "any addition of any pollutant to navigable waters from any point source," discharged into water. The term "navigable waters" is defined as "waters of the United States, including the territorial seas." The Appeals Court said, "Using either Justice Kennedy's or the plurality's test in Rapanos, the government presented sufficient evidence from which the jury could find, beyond a reasonable doubt, the required jurisdictional nexus. Agosto's guilt was established as to Count One.

    Access the complete opinion (click here).

Wednesday, August 18, 2010

U.S. v. Magnesium Corp. of America

Aug 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-4185. As its name advertises, U.S. Magnesium produces magnesium, though in doing so it also generates various waste byproducts. The lawsuit concerns five of those wastes. The government says that U.S. Magnesium's handling of the wastes must, but hasn't, complied with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA). For its part, U.S.Magnesium challenges the premise of the government's suit, arguing that the U.S. EPA exempted the five wastes from Subtitle C's strictures in a prior interpretation of its own regulation. And, U.S. Magnesium says, the Agency cannot change that interpretation now, at least not without first complying with the notice and comment procedures of the Administrative Procedure Act (APA).
    At summary judgment, the district court agreed with U.S. Magnesium and entered judgment in its favor. However, the Appeals Court said, "We must vacate that judgment. Even if we assume with U.S. Magnesium that a definitive regulatory interpretation prohibits an agency from later changing course and issuing a new interpretation without first undergoing notice and comment, that's simply not our case. The only prior EPA interpretation U.S.Magnesium can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations."
    The Appeals Court concluded, "For purposes of summary, we hold that EPA hasn't previously adopted a definitive interpretation of its 1991 rule. Even under the case law U.S. Magnesium asks us to follow, the Agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation. At least before us, U.S. Magnesium does not dispute that EPA has done so with this litigation. For this reason, we vacate the entry of summary judgment in U.S. Magnesium's favor and remand this matter to the district court. We do not prejudge what, if any, further proceedings may be appropriate in that court in light of and consistent with this opinion."
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Northwest Environmental Defense Center. v. Brown

Aug 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies. NEDC argues that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).
    The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The Appeals Court said, "The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. We reach both questions and conclude that the discharges require NPDES permits."
    The Appeals Court explained in its concluding statements, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.
    ". . .we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."
    Access the complete opinion (click here).

Monday, August 16, 2010

Sierra Club v. Otter Tail Power Company

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-2862. Sierra Club brought this Clean Air Act (CAA) citizen suit against Otter Tail Power Company, MDU Resources Group, and Northwestern Energy, who own and operate the Big Stone Generating Station, a coal fired power plant near the border between South Dakota and Minnesota. Sierra Club alleged that Otter Tail violated the CAA by failing to obtain permits for a series of modifications to the plant and by exceeding applicable emission limits. The district court granted Otter Tail's motion to dismiss, and Sierra Club timely appealed. The Appeals Court affirmed the district court opinion.
    By way of background, the Appeals Court explains that the Big Stone Generating Station is a 450 megawatt coal fired power plant located in Big Stone City, South Dakota. Otter Tail Power Company operates the plant. Big Stone has undergone various physical and operational modifications since it began operating in 1975. Sierra Club alleges that three of those modifications triggered PSD and NSPS obligations which Otter Tail has violated.
    The Appeals Court indicates that Sierra Club commenced this suit in June 2008 under the CAA's "citizen suit" provision, 42 U.S.C. § 7604(a), seeking assessment of civil penalties against Otter Tail as well as declaratory and injunctive relief. It alleged that Otter Tail had violated the CAA by failing to obtain PSD permits before commencing the three modifications described above. It also claimed that Otter Tail continued to violate the CAA by operating without permits and without abiding by the BACT emission limits which would have been imposed as part of the PSD permitting process. Finally, Sierra Club alleged that Big Stone was operating in violation of NSPS limits triggered by the 2001 ethanol plant project.
    Otter Tail moved to dismiss, arguing that Sierra Club's PSD claims were untimely and that the NSPS claim was an impermissible collateral attack on Otter Tail's operating permit. The district court granted the motion. It interpreted the CAA's PSD provisions as imposing upon operators only a one time obligation to obtain a permit before construction or modification of a facility, as opposed to imposing ongoing conditions on its operation. It reasoned that any violation of these provisions would have thus occurred when modifications were commenced. Since the last modification was begun in 2001, Sierra Club's PSD civil penalty claims were barred by the five year statute of limitations in 28 U.S.C. § 2462. Although § 2462 does not apply to equitable relief, the district court decided that Sierra Club's claims for equitable relief were foreclosed under the concurrent remedy doctrine because its civil penalty claims were time barred.
    The district court dismissed the NSPS claim for lack of subject matter jurisdiction. Because that claim essentially attacks the terms of Otter Tail's amended Title V permit rather than Otter Tail's compliance with the permit, the district court concluded that Sierra Club should have raised the NSPS issue in administrative proceedings during the permitting process. Since judicial review of issues that may be raised through that process is vested exclusively in the courts of appeals, the district court determined that it lacked jurisdiction over the NSPS claim.
    On one issue, the Appeals Court explained its rationale and said, "Sierra Club may be correct that the district court's interpretation of §§ 7661d and 7607 restricts the permit shield's applicability, but this does not persuade us that its interpretation is erroneous. While § 7661c(f) is a statutory defense to liability, §7607(b)(2) limits district court subject matter jurisdiction. To the extent the two provisions are in tension, the jurisdictional limit is paramount. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17–18 (1951) ('The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . . .'); Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) ('It is to be presumed that a cause lies outside [the] limited jurisdiction' of the federal courts.). Sierra Club argues that our interpretation of the jurisdictional provisions should not curtail the scope of the permit shield, but the more fundamental rule of construction holds that we must not expand federal court jurisdiction in service to a broad reading of the permit shield.
    "Moreover, our interpretation of § 7607(b) does not render the permit shield entirely superfluous. Our holding is limited to the circumstances of this case. While we decline to delve into other contexts in which the permit shield may play a role, we note that the considerations underlying our decision would not necessarily be present . . . We conclude that because Sierra Club could have obtained judicial review of its NSPS claim through the process established by 42 U.S.C. § 7661d, district court review of that claim is foreclosed by § 7607(b)(2). Accordingly, the district court did not err in dismissing the claim."
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Great Rivers Habitat Alliance v. FEMA

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3183. Great Rivers Habitat Alliance (Great Rivers) and the Adolphus A. Busch Revocable Living Trust (Busch Trust) (collectively, appellants) appeal the dismissal of their case for lack of jurisdiction by the Magistrate Judge presiding with the consent of the parties. The district court found appellants failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act of 1968 (NFIA), and further found the judicial review provisions of the Administrative Procedure Act (APA) did not apply. Appellants argue the case was dismissed in error because they had in fact exhausted their administrative remedies, and in any event should be allowed to proceed under the APA. The Appeals Court affirmed the district court decision.
    On the APA claim, the Appeals Court said, "Because the APA only grants judicial review of final agency action in cases 'for which there is no other adequate remedy in a court,' 5 U.S.C. § 704, the district court did not err in dismissing appellants' APA claim, because 42 U.S.C. § 4104(g) provides an adequate legal remedy."
    On the jurisdictional question the Appeals Court said it can be "reduced to whether appellants challenged FEMA's decision on the basis of the decisions' scientific or technical accuracy in accordance with § 4104(b). In order to appeal a determination on the basis of scientific or technical accuracy, FEMA's regulations require supporting documentation. . . Appellants did not point to any mathematical or measurement error, changed physical conditions, or lack of sufficient quality data to support the allegations . . . We agree with the district court that appellants' challenge was not based upon the scientific or technical accuracy of the LOMR [Letter of Map Revision], and thus did not constitute an appeal within the meaning of 44 C.F.R. § 67.6."
    The Appeals Court said finally, ". . . the regulations require appellants to certify new information so FEMA can conduct another analysis. This is precisely what appellants failed to do in this case. Instead, appellants attempt to force FEMA to reanalyze the existing data, hoping for a different result, without submitting any new certified technical data showing the first analysis contained mathematical or measurement errors, or physical conditions have changed. Because appellants did not submit new scientific or technical information, and what they did submit was not certified by an engineer or surveyor, appellants are relying on nothing but the data in FEMA's files. The district court correctly concluded it lacked jurisdiction because appellants failed to exhaust their administrative remedies by filing a proper appeal with FEMA."
    Access the complete opinion (click here).

Tuesday, August 10, 2010

Home Builders' Association v. U.S. Fish & Wildlife Service

Aug 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16732. The Home Builders Association of Northern California and other industry groups (collectively Home Builders") challenge the designation by the U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species. In the district court, Butte Environmental Council and other conservation groups (collectively Butte Environmental) intervened as defendants in support of the designation, and they have participated in the appeal. The district court upheld the designation, and Home Builders appeals, raising five technical challenges to FWS's procedure. The Appeals Court said, "We conclude that none of those challenges have merit, and we affirm."
    By way of background, the Appeals Court explains vernal pools are a "unique kind of wetland ecosystem" that exists only temporarily. The pools typically appear in spring -- that is, vernally -- following fall and winter rains before drying up until the
following year. Since the pools' existence depends on rainfall, pool size and location can vary from year to year. To survive years in which no pool develops due to low rainfall, vernal pool species have developed a dormant stage: vernal pool plant seeds can remain viable for several years and the fertilized egg of a vernal pool crustacean can remain viable for ten years or more. The egg develops a thick shell that protects it from extreme temperatures and even digestive enzymes, meaning that it can be transported within the digestive tracts of animals without harm.
    On one of the critical challenges the Appeals Court said, "Home Builders's position is contrary to Arizona Cattle Growers, 606 F.3d at 1172, where the court rejected the notion that 'FWS was required to attribute to the critical habitat designation economic burdens that would exist even in the absence of that designation.' That opinion also expressly approved the baseline approach to economic analysis, under which 'any economic impacts of protecting the [listed species] that will occur regardless of the critical habitat designation . . . are treated as part of the regulatory "baseline" and are not factored into the economic analysis of the effects of the critical habitat designation.' Id. Beyond arguing that FWS failed to follow the requirements of statutory and regulatory
provisions that have no application, Home Builders raises no other argument that anything was insufficient about FWS's consideration of the economic impact of its designation."
    Access the complete opinion (click here).

Monday, August 9, 2010

Howmet Corporation v. U.S. EPA

Aug 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-5360. U.S. EPA said Howmet Corporation (Howmet) violated the Resource Conservation and Recovery Act and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq. (collectively RCRA), and its implementing regulations. Howmet argued instead that its actions were permitted by the regulations. The Appeals Court said, "Whether viewed as a syntactical ambiguity or a semantic squabble, the dispute focuses on one question: when is a material no longer serving 'the purpose for which it was produced?' The EPA insists the initial use of the material is determinative; Howmet contends the initial use is irrelevant. The question matters because 'spent material' is subject to RCRA's hazardous waste regulations, but material that has not been spent is not."
    Howmet insisted that used KOH (liquid potassium hydroxide) sent to a fertilizer manufacturer [Royster] for use as a fertilizer ingredient was not "spent material" and thus not subject to RCRA regulations. After Howmet lost this argument before an administrative law judge (ALJ) and the Environmental Appeals Board (EAB), the district court rejected Howmet's Administrative Procedure Act claim and granted the EPA's cross-motion for summary judgment, holding that EPA's interpretation of its "spent material" regulation was not arbitrary and capricious and that Howmet had fair notice of the Agency's interpretation. See  Howmet Corp. v. EPA, 656 F. Supp. 2d 167 (D.D.C. 2009).
    In a 2-1 split decision, the majority Appeals Court affirmed the district court decision upholding EPA's interpretation. The majority said, "The EPA's explanation of the definition of spent material in the Guidance Manual should have put Howmet on notice of the EPA's interpretation of its 'spent material' definition, and Howmet should have been able to determine that, based on the EPA's interpretation, the used KOH it transferred to Royster was a spent material. Use as a fertilizer ingredient is not a use
'similar to' use as an industrial cleaning agent. Thus, even assuming the EPA's 1985 Final Rule and its accompanying regulations lacked enough clarity, on their own, to provide Howmet fair notice of the EPA's interpretation of its spent material definition, the Guidance Manual, made available to Howmet one year after the regulation was promulgated and thirteen years before the conduct at issue here, was sufficient to do so."
    In a convincing dissent, Justice Kavanaugh argues, ". . .the statute provides that hazardous waste must be 'discarded material.' 42 U.S.C. § 6903(5), (27). In 1985, EPA issued regulations that construe 'discarded material' to include certain 'spent material.' See 40 C.F.R. § 261.2. A material is "spent" if it is no longer suitable for 'the purpose for which it was produced.' Id. § 261.1(c)(1). A separate regulation makes clear that 'purpose,' though singular, can include multiple purposes. See id. § 260.3(b). The key issue in this EPA enforcement action concerns the 1985 regulations' phrase 'purpose[s] for which [a material] was produced.' The material at issue here -- liquid potassium hydroxide -- is produced and marketed for, among other things, use in fertilizer. Yet EPA seeks to impose fines on Howmet for shipping liquid potassium hydroxide for use in fertilizer simply because Howmet had already used the potassium hydroxide as a metal cleaning agent. In justifying its enforcement action, EPA claims that the "purpose for which [a material] was produced" includes only the material's first use by the purchaser. In my judgment, EPA's argument mangles the language of the 1985 regulations."
    Access the complete opinion (click here).

Thursday, August 5, 2010

U.S. ex rel. Lemmon v. Envirocare of Utah, Inc.

Aug 4: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-4079. Brought under the False Claims Act (FCA), 31 U.S.C. § 3729(a)(1) and (2), this suit involves qui tam [i.e. lawsuit by a private citizen against a person or company who is believed to have violated the law in the performance of a contract with the government] claims against Defendant-Appellee Envirocare of Utah, Inc. (Envirocare) by one of its former employees and two former employees of an Envirocare subcontractor (Plaintiffs). The suit arises from Envirocare's hazardous-and-radioactive-waste-disposal contracts with the federal government (government). Plaintiffs allege that, between June 2000 and June 2001, Envirocare repeatedly violated its contractual and regulatory obligations by improperly disposing of the contracted for waste. In spite of these violations, Plaintiffs contend, Envirocare falsely represented to the government that it had fulfilled its obligations and, based on its false representations, improperly received payment from the government.
    The district court dismissed under Rules 8(a), 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff contends that the district court overlooked "her implied-certification (of false claims) theory and erred in rejecting her express-certification theory." The Appeals Court reversed the district court decision.
    The Appeals Court explained, "Envirocare expressly certified that the payments requested were only for work performed in accordance with the specifications, terms, and conditions of the contract . . .  In so arguing, Envirocare seeks to hold Plaintiffs to a higher standard than is required. The federal rules do not require a plaintiff to provide a factual basis for every allegation. Nor must every allegation, taken in isolation, contain all the necessary information. Rather, to avoid dismissal under Rules 9(b) and 8(a), plaintiffs need only show that, taken as a whole, a complaint entitles them to relief. See, e.g., Twombly, 550 U.S. at 554-56. The complaint must provide enough information to describe a fraudulent scheme to support a plausible inference that false claims were submitted. Because Plaintiffs have provided sufficient factual detail to demonstrate the viability of their FCA claims, the dismissal under Rule 9(b) was error."
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Tuesday, August 3, 2010

City of Colton v. American Promotional Events

Aug 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-56718. The Appeals Court says, "We must decide, among other things, whether the City of Colton, California, can recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allegedly incurred as a result of perchlorate contamination in its water supply."
    Numerous defendants filed a motion for summary judgment, arguing that Colton could not recover its wellhead treatment program costs under CERCLA. In its opposition, Colton argued that the defendants were liable for not only its wellhead treatment program costs, but also costs associated with a future Basin-wide cleanup estimated to cost between $55 and $75 million. The district court granted summary judgment for the defendants on Colton's federal claims and declined to exercise supplemental jurisdiction over Colton's state law claims. The district court held that Colton could not recover its costs associated with the wellhead treatment program because it failed to show that such costs were necessary and consistent with the NCP; furthermore, because Colton could not show that it was entitled to recover any of its past costs, its claim for declaratory relief as to its future costs necessarily failed.
    The Appeals Court said, "Colton first seeks reversal of the district court's summary judgment denying recovery of its past response costs. Colton challenges the district court's conclusion that the wellhead treatment program was unnecessary because there was no immediate threat to the public health or environment. See 42 U.S.C. § 9607(a)(4)(B). Colton concedes, however, that it failed to comply with the national contingency plan in its past response action. Because Colton's concession is a sufficient ground upon which to affirm the summary judgment with respect to past response costs, we decline to review the merits of the district court's conclusion that such costs were unnecessary."
    Colton also contends that the district court erred in granting summary judgment denying its claim for declaratory relief as to its future response costs. . . The Appeals Court said, "Colton argues that its failure to incur recoverable response costs in the past has no bearing on whether it will incur such costs in the future. Therefore, Colton contends that it should still be allowed to seek declaratory relief as to liability for its future costs. Whether a CERCLA plaintiff's failure to establish liability for its past costs necessarily dooms its bid to obtain a declaratory judgment as to liability for its future costs appears to be an issue of first impression in this circuit. Our sister circuits have taken divergent approaches to this issue." The Appeals Court cites cases from the Eighth, Second, Third, First and Tenth Circuits.
    In affirming the district court's summary judgment, the Appeals Court ruled in part, "We conclude that CERCLA's purposes would be better served by encouraging a plaintiff to come to court only after demonstrating its commitment to comply with the NCP and undertake a CERCLA-quality cleanup. Upon establishing liability under section 107, the plaintiff can 'obtain reimbursement for [its] initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job.' Dant & Russell, 951 F.2d at 249-50. Such a declaration would allow the plaintiff to avoid costly and time-consuming relitigation of liability once it has already been established. See Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) ('Congress included language [in section 113(g)(2)] to insure that a responsible party's liability, once established, would not have to be relitigated . . . .'). Where, as here, the plaintiff fails to establish section 107 liability in its initial cost-recovery action, no declaratory relief is available as a matter of law."
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Pit River Tribe v. U.S. Forest Service

Aug 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15385. The Appeals Court indicates that the appeal arises out of an action by the Pit River Tribe, et al (collectively Pit River) against the United States Forest Service, et al (collectively agencies), and against Calpine Corporation (Calpine). This case has already resulted in one appeal to this court, Pit River Tribe v. United States Forest Service, 469 F.3d 768, 772 (9th Cir. 2006) (Pit River I). The underlying litigation concerns Calpine's efforts to develop a geothermal power plant near Medicine Lake, an area of spiritual significance to the Pit River Tribe and other Native American tribes in the region.
    The district court concluded that the agencies need not "withdraw the 1988 leasing decisions," but that the "BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions." In conclusion, the Appeals Court said, ". . .we substantially uphold the district court's remand; and we remand with instructions to correct (1) the statement that "the 1998 lease extension in this case took effect and the 1988 leases did not expire" as explained in Part II.A of this opinion, and (2) the typographical error using the word "until" instead of the word 'unit,' as explained in Part II.C of this opinion." The case was affirmed in part, reversed in part and remanded for further proceeding consistent with the opinion.
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McKeen v. US Forest Service

Aug 2: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-2290. The Appeals Court explains that for more than forty years, the United States Forest Service (hereinafter Forest Service) has granted Plaintiff Hugh B. McKeen and his family a series of term livestock grazing permits to graze cattle and/or horses on the Cedar Breaks Allotment in the Glenwood Ranger District of the Gila National Forest in Catron County, New Mexico. Recently, McKeen sought to have several Forest Service actions which affected these permits set aside pursuant to the Administrative Procedure Act (APA). The district court denied each of McKeen's requests for relief and McKeen filed a timely appeal. The Appeals Court affirmed in part and vacated in part. With respect to the claims which were vacated, the Appeals Court remanded them to the district court with instructions to dismiss them as moot.
    The Appeals Court concludes in part that, ". . .rather than identify any discrete action of the Forest Service which he challenges, McKeen continues to make broad, conclusory statements regarding the implementation of the Decision Notice. Even after a careful reading of McKeen's briefing and the record, it is simply impossible to determine precisely what Forest Service actions he believes have aggrieved him in this regard, and forest 'monitoring and management practices are reviewable [only] when, and to the extent that, they affect the lawfulness of a particular final agency action.' [citing] See Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th Cir.2002)."
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