Kurt Meister v. U.S. Department of Agriculture

Sep 29: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-1712. The Appeals Court says that an agency is not entitled to deference simply because it is an agency. It is true that agencies are more specialized than courts are. But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it. And that means, among many other things, that the agency must apply -- rather than disregard -- the relevant statutory and regulatory criteria.

 

    Kurt Meister, a Michigan attorney appearing pro se [representing himself], argues that the United States Forest Service disregarded the relevant criteria here. Specifically, he claims that the Service failed to comply with several of its own regulations and one federal statute in developing its 2006 management plan for the Huron-Manistee National Forests in Northern Michigan. For the most part, we agree with him; and to that extent we reverse the district court's entry of judgment in the Service's favor and remand the case so that the Service may comply with those requirements forthwith.

 

    The case concerns the Service's management of recreational activities in the Huron-Manistee National Forests. The Forests occupy about 970,000 acres on each side of the northern one-third of Michigan's Lower Peninsula. In the east, the Huron National Forest ranges between 12 and 30 miles long from north to south, and stretches 60 miles wide from west to east, reaching the shores of Lake Huron. In the west, the Manistee National Forest is about 75 miles long and 40 miles wide, reaching Lake Michigan near Manistee.

    The Service issued a management plan for the Forests in 1986. In 2003, the Service published a notice of intent to revise the plan. The Service thereafter held public meetings and solicited public comments as to how to revise the plan. Meister commented on the Plan throughout its development. Those comments reveal fluency with the language of the relevant statutes and regulations; and they explained in considerable detail why Meister thought the Service was not meeting its obligations under the law. His principal comment was that, in developing the Plan, the Service had disregarded certain processes prescribed in its own regulations, so as to favor gun hunters and snowmobile users over other persons—for example, hikers and birdwatchers -- who use the Forests for quiet, solitary activities. He also commented that the Service should close more areas of the Forests to motorized activity than the Service seemed likely to close in the Plan. The Appeals Court said, "It appears that the Service disagreed with all of Meister's comments." Following an administrative appeals, Meister filed suit in district court and the district court granted the Service's motion, holding in general terms that the Service had complied with the applicable regulations. The district court denied Meister's motion.

 

    The Appeals Court summarize its holdings saying, "First, the Service's estimates of snowmobile and cross-country visitors to the Forests are arbitrary. . . Second, the Service has not complied with the requirement that it coordinate its recreational planning with that of the State of Michigan with the aim (to the extent feasible) of "reducing duplication in meeting recreation demands" with respect to gun hunting and snowmobiling. . . Third, the Service's reasons for keeping pre-designation and club trails open to snowmobile use are arbitrary. . . Fourth, the Service violated the National Environmental Policy Act when it failed to consider whether to close Primitive and Semiprimitive Nonmotorized areas to gun hunting and snowmobile use, as Meister has proposed."

 

    The Appeals Court ruled, "Each of these failures was material to the Plan's development. To that extent, the Plan's approval was arbitrary or without observance of procedures required by law. Given that holding, we have authority to 'set aside' the Plan. . . We choose not to exercise that authority today, but instead grant the Service a reasonable time to adopt a plan that complies with the law. Ninety days from the date of our mandate seems to us ample time for that compliance. The district court may extend that period upon some showing that the court finds compelling; but in any event the Service shall comply forthwith. The district court's judgment is reversed with respect to the claims summarized . . . Meister is entitled to judgment on those claims to the extent described . . . and the claims are remanded to the district court for further proceedings consistent with this opinion. The district court's judgment is otherwise affirmed."

 

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Oklahoma v. Tyson Foods, Inc.

Sep 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-5134. The Cherokee Nation (the Nation) appeals the district court's denial of its motion to intervene in a dispute between the State of Oklahoma (the State) and Defendants-Appellees (collectively, Tyson). The State had sued Tyson because of Tyson's disposal of poultry waste in the Illinois River Watershed (IRW). The IRW, in which both the State and the Nation claim interests, covers approximately one million acres straddling the Oklahoma-Arkansas border. Within it are hundreds of large-scale poultry farms. Tyson operates some of these farms and contracts with other farmers to raise poultry until maturity, using methods established by Tyson; Tyson collects the poultry at maturity for processing and marketing. These poultry-growing operations generate hundreds of thousands of tons of poultry waste each year.

 

    Raising a number of legal theories, the State sought monetary relief for past and future damages and an injunction against alleged pollution. More than three years into the litigation, Tyson moved to dismiss the monetary claims on the ground that the Nation was a required party that had not been joined. The State argued that the Nation was not a required party but also negotiated an agreement in which the Nation purportedly assigned the State its interests in the litigation. The district court ruled that the agreement was invalid and granted Tyson's motion, restricting the previously scheduled trial to the State's claims for injunctive and other equitable relief.

 

    Nineteen days before trial the Nation moved to intervene so that it could proceed on three claims against Tyson for injunctive and monetary relief. The district court denied the motion as untimely. Although the Nation argued that it had moved promptly after learning that the State could not adequately represent the Nation's interests in the litigation, the district court ruled that the Nation had delayed too long, that Tyson would be severely prejudiced by the lengthy trial delay that would be necessary if the Nation were permitted to intervene, and that the Nation would not be prejudiced by a denial of intervention.

 

    In a split decision, the majority affirmed the district court denial and said it "did not abuse its discretion in denying the motion to intervene. In particular, the district court could properly find that the Nation had unduly delayed seeking to intervene because from the outset of the litigation it had no reason to believe that the State would represent its interests in monetary relief."

 

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Celanese Corp. v. Eby Construction Co.

Sep 20: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-20487. At issue is whether Eby is liable as an "arranger" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Texas Solid Waste Disposal Act (SWDA). The Appeals Court ruled that Eby is not an arranger, and affirmed the district court's final judgment, denying recovery to Celanese. Additionally the Appeals Court affirmed the district court's denial of Celanese's motion to alter that judgment pursuant to Federal Rule of Civil Procedure 59(e).

 

    In explaining its decision, the Appeals Court says, "The district court found, and Celanese does not dispute, that Eby did not intentionally damage the pipeline. In fact, Eby did not even know that it had struck a pipeline; it only knew that it had struck something with a backhoe. Still, Celanese insists that Eby intentionally took steps to dispose of methanol by disregarding its obligations to investigate the incident and backfilling the excavated area where the incident had occurred. In other words, Celanese argues that Eby's conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol. Burlington [Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1874 (2009)], however, precludes liability under these circumstances.

 

    "In Burlington, the Court declined to impose arranger liability for a defendant with more culpable mens rea. The defendant had actually arranged to ship hazardous chemicals under conditions that it knew would result in the spilling of a portion of the hazardous substance by the purchaser or common carrier. See Burlington, 129 S. Ct. at 1880. Given that there was no arranger liability under those circumstances, we fail to see how we can impose such liability here when Eby did not even know that it had struck the Celanese pipeline. Therefore, we hold that Eby is not liable as an arranger under CERCLA."

 

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Sackett v. U.S. EPA

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No.08-35854. As the Appeals Court explains, the case must determine whether Federal courts have subject-matter jurisdiction to conduct review of administrative compliance orders issued by the U.S. EPA under the Clean Water Act (CWA)  before EPA has filed a lawsuit in Federal court to enforce the compliance order. The Appeals Court rules, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."

 

    In brief summary the Sacketts argued that a compliance order issued by EPA regarding a wetlands violation was: (1) arbitrary and capricious under the Administrative Procedure Act; (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an "any information available" standard that is unconstitutionally vague. The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. It concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in Federal court. The Sacketts filed a Federal Rule of Civil Procedure 59(e) motion for clarification and reconsideration that was also denied.

 

    In making its ruling, the Appeals Court indicates that, ". . .we do not work from a blank slate. Every circuit that has confronted this issue has held that the "CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court." The Appeals Court cites cases from the 10th, 6th, 4th, and 7th Circuits and many Districts and says, "The reasoning of these courts is persuasive to us, as well as the broad uniformity of consensus on this issue."

 

    The Appeals Court summarizes, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district

court properly dismissed this case for lack of subject-matter jurisdiction."

 

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Miccosukee Tribe of Indians v. U.S. Army Corps of Eng'rs.

Sep 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14194, 09-14539 & 09-11891. The Appeals Court indicates that the Miccosukee Tribe of Indians of Florida (the Tribe) filed two lawsuits challenging the Federal government's plans to replace a mile of the ground-level Tamiami Trail (U.S. Highway 41) with a bridge, to increase the flow of water into Everglades National Park. The district courts dismissed the Tribe's claims for lack of subject matter jurisdiction, and the Appeals Court have consolidated the Tribe's appeals of those decisions.

 

    The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking. The Tribe challenges that interpretation, and asserts the rulings violate the Constitution on several counts. However, Appeals Court concluded that "the act of Congress deprived the federal courts of subject matter jurisdiction over the Tribe's claims," and affirmed the judgments of the district courts.

 

    The Appeals Court provides background indicating, "Although the Trail [Tamiami Trail] remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.

 

    In 2000, the President signed the Water Resources Development Act, Pub. L. No. 106-541, § 601, 114 Stat. 2572, 2680 (WRDA), outlining the thirty-year Comprehensive Everglades Restoration Plan (CERP) that updated the original Central and Southern Florida plan for the Everglades. One element of CERP called for improvement of water flow through the Trail. On September 30, 2008, Congress passed a continuing appropriations act, Pub. L. No. 110-329, 122 Stat. 3574. Section 153 of the act spoke to the immediate building of the bridge saying, "SEC. 153. Amounts provided by section 101 for implementation of the Modified Water Deliveries to Everglades National Park shall be made available to the Army Corps of Engineers, which shall immediately carry out Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) as substantially described in the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008 . . . "

 

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Association of American Railroads v. South Coast Air Quality Mgmt.

Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55804. The Appeals Court explains that an array of Federal, state, and local laws governs the operation of railroads, including laws that regulate the effect of the railroad industry on the environment. In this case, a local governmental agency enacted rules aimed at limiting the air pollution created by idling trains. Several entities within the railroad industry filed suit. After a bench trial, the district court held that Federal law preempts the local rules.

 

    The Railroads contend that the Interstate Commerce Commission Termination Act of 1995 (ICCTA), Pub. L. No. 104-88, 109 Stat. 803, a Federal act that substantially deregulated the railroad industry, preempts the South Coast Air Quality Management District rules. On review, the Appeals Court cited Davis v. Yageo Corp., 481 F.3d 661, 673 (9th Cir. 2007); J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir. 2007), and affirmed the decision of the district court.

 

    The Appeals Court ruled in part, "Because the District's rules have the force and effect of state law, ICCTA preempts those rules unless they are rules of general applicability that do not unreasonably burden railroad activity. The District's rules plainly cannot meet that test. The rules apply exclusively and directly to railroad activity, requiring the railroads to reduce emissions and to provide, under threat of penalties, specific reports on its emissions and inventory. Because ICCTA 'preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation,' N.Y. Susquehanna, 500 F.3d at 252 (internal quotation marks omitted), ICCTA preempts the District's rules here."

 

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Hapner (Native Ecosystems) v. Tidwell (Forest Service)

Sep 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35896. The United States Forest Service (the Service) proposed the Smith Creek Project (the Project) in the Gallatin National Forest to reduce the risk of severe wildfire, to reduce the risk of insect infestation and disease, and to promote habitat diversity. Sharon Hapner, Alliance for Wild Rockies, and Native Ecosystems Council (collectively Plaintiffs) challenged the Project, contending that it violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). After a remand, the district court granted summary judgment to the Service on all of Plaintiffs' claims. The Appeals Court ruled, "We affirm the district court in almost all respects. We reverse on only one claim, holding that the Project violates NFMA by failing to comply with the elk-cover requirement contained in the Gallatin National Forest Plan."

 

    The Appeals Court explains that the Service argues that even if the Project violates the Gallatin Plan's elk-cover requirement, the error is harmless given the large elk populations in the Project area. But "[i]t is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA." Native Ecosystems Council, 418 F.3d at 961. "If the Forest Service thinks any provision . . . of the Plan is no longer relevant, the agency should propose amendments to the . . . Plan altering its standards, in a process complying with NEPA and NFMA." Although current elk populations may meet or exceed Montana objectives, those objectives cannot replace Federal management objectives. The Appeals Court reminds that, the Service's own research scientists have written, in guidelines for elk management, "Reducing habitat effectiveness should never be considered

as a means of controlling elk populations. A population over target is not a Forest Service habitat problem." Therefore, the Appeals Court rules, "We therefore conclude that the Service has violated the Gallatin Plan, and NFMA, by not ensuring that the Project complies with the current Gallatin Plan elk-cover requirement. We remand to the Service to remedy this error."

 

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City Of Emeryville v. Robinson

Sep 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15018. The Sherwin-Williams Company (Sherwin-Williams) appealed from an order of the district court granting in part, and denying in part, a motion for declaratory and injunctive relief. Sherwin-Williams brought the motion to enforce a 2001 court-approved settlement (the 2001 Settlement), which it negotiated with appellees City of Emeryville and the Emeryville Redevelopment Agency (collectively, Emeryville) to resolve a lawsuit filed by Emeryville in 1999 in the Northern District of California pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act  (CERCLA). That suit (the Site A litigation) sought to recover clean-up costs as to a 14.5-acre parcel (Site A) where Sherwin-Williams manufactured, stored, and distributed pesticides from the 1920s through the 1960s.

 

    Under the terms of the 2001 Settlement, Sherwin-Williams paid Emeryville $6.5 million for Site A clean-up, and agreed to a cost-sharing formula for future groundwater remediation. In the instant action, the district court concluded that the release provision in the 2001 Settlement was intended to bar the claims Emeryville is currently asserting against Sherwin-Williams in a separate action, which the Emeryville Redevelopment Agency filed in 2006 in Alameda County Superior Court (the State Court Action) to recover $32 million in clean-up costs from Sherwin-Williams and others for a different parcel (Site B), but only to the extent the Site B claims arose from or were related to contaminants that "emanated from" Site A.

 

    Appellees and intervenors Howard F. Robinson, Jr., Christopher D. Adam, and Hilary A. Jackson (collectively, Intervenors) are recent or current owners of portions of Site B, who were also named as defendants in the State Court Action, but they were not parties to and did not have notice of the Site A litigation or the 2001 Settlement. Intervenors are also, however, cross-claimants in the State Court Action, who were allowed to intervene in this case to prevent the extinguishment of rights of contribution they seek to enforce against Sherwin-Williams for contamination of their properties at Site B.

 

    The Appeals Court determined that in the instant action, the district court ruled that the contribution bar in the 2001 Settlement does not apply to the Intervenors' cross-claims against Sherwin-Williams. The district court had jurisdiction under the express terms of the 2001 Settlement and affirmed the district court ruling.

 

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South Coast Air Quality Mgmt. Dist. v. FERC

Sep 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-72265. This case involves the interstate natural gas pipeline system as regulated by the Federal Energy Regulatory Commission (FERC); the varying quality of natural gas as measured by the Wobbe Index (WI); and the resulting air pollution from burning varying qualities of natural gas.

 

    In general, FERC issued an order approving a project, which authorized the construction of new facilities to allow for the northward flow of gas by North Baja Pipeline, LLC. The order confirmed FERC's earlier environmental review and adopted twenty-one enumerated environmental conditions relating to the construction of the pipeline and its continued transport of gas. FERC also required that the North Baja pipeline only deliver gas that meets the strictest gas quality standards imposed by state regulatory agencies on downstream end-users and pipelines, which, in light of California's gas standards, meant that the North Baja gas could not exceed a WI level of 1385. FERC found that compliance with these standards "should not result in a material increase in air pollutant emissions and, therefore, should not result in material changes in air quality in the Basin."

 

    South Coast Air Quality Management District (South Coast) argued for a maximum WI of 1360 in California, however, FERC observed that "[t]he record contains no analysis or evidence showing a material change in air quality impacts as a result of the consumption of natural gas with a WI of 1385 . . . compared to that of [South Coast's] proposed WI limit of 1360." South Coast, acting alone, filed a Request for Rehearing of FERC's Order. FERC denied the request and South Coast filed the instant petition for review with the Appeals Court.

 

    The Appeals Court ruled in part, ". . . while South Coast correctly states that the gas quality of the North Baja gas 'would be up to a 1385 Wobbe Index,' this number does not take into account any blending or conditioning of gases that may occur in either the North Baja pipeline itself or the California pipeline system, nor does it reflect the WI of gas in the Basin at the time it is actually burned. Indeed, because the actual WI of the North Baja gas by the time it reaches the Basin is unknown at this time, the expected NOx emissions and resulting environmental harm that may occur are equally unknown. Again, even South Coast acknowledged this uncertainty during its challenge to the CPUC proceedings. Consequently, the emissions that may result from the consumptive burning of North Baja gas are not reasonably foreseeable within the definition provided by the EPA's regulations.

 

    "Because the CAA does not require that FERC attempt to 'leverage its legal authority to influence or control' state air quality issues, and because there remains substantial uncertainty regarding the eventual burning of North Baja gas, FERC is not obligated to perform a full conformity determination regarding such burning under the CAA. South Coast's petition for review is denied."

 

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Chevron Corp. v. 3TM International, Inc.

Sep 8: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20389. The case is appealed from the Southern District of Texas (Houston Division) and involves a group of Ecuadorian citizens (the plaintiffs) who have sued Chevron Corporation in Ecuador appeal from the district court's order allowing Chevron to depose their consultant, 3TM.

 

    In 2003, the plaintiffs sued Chevron in Ecuador, seeking to hold Chevron liable as the successor to Texaco Petroleum Company. The plaintiffs allege that Texaco polluted the Ecuadorian Amazon Rainforest over the course of several decades while engaging in oil extraction in the region. The appeal arises out of the plaintiffs' Ecuadorian lawsuit against Chevron. Specifically, it concerns Richard Stalin Cabrera Vega (Cabrera), an individual appointed by the Ecuadorian court to serve as a neutral expert in the Ecuadorian proceedings. In 2008, Cabrera released a report recommending that Chevron be held liable for $27.3 billion in damages, but the Ecuadorian court has yet to render a judgment against Chevron.

 

    Despite Cabrera's professed impartiality, Chevron claims that Cabrera actually worked closely with the plaintiffs to produce his report, much of which Chevron alleges was secretly ghostwritten by the plaintiffs' U.S. consultants. Chevron filed a § 1782(a) application seeking discovery from 3TM, an environmental consultancy firm in Houston. The plaintiffs' consultant Stratus retained 3TM to assist the plaintiffs in mediation and settlement discussions with Chevron in 2007, and Chevron alleges that 3TM and Stratus produced a report that Cabrera integrated into his report, without disclosing his reliance on it. After the plaintiffs intervened to quash Chevron's subpoena of 3TM, the district court ordered 3TM to submit to limited discovery.

 

    The court concluded that discovery was appropriate based on the Intel factors that the Supreme Court has directed courts to consider in reviewing requests for discovery in aid of foreign proceedings. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The court also found that although some of the documents and information sought by Chevron could be protected under various privileges, this protection would have been waived by the provision of any documents to Cabrera.

 

    The Appeals Court affirmed the district court's order requiring 3TM to submit to a foundational deposition, and remanded the case for further proceedings consistent with the opinion and said, ". . .the district court did not err in ordering a foundational deposition, despite the lack of definite evidence of a waiver. Although we approve of the course chosen by the district court, we believe the terms that the court set for the deposition should be further refined. As already explained, the court ordered that 3TM's deposition be limited to 'whether 3TM collaborated with Cabrera' and 'the extent to which 3TM recognizes its work in the Cabrera report.' However, the district court did not clearly specify the level of similarity between the Cabrera report and 3TM work product necessary to show that a waiver of immunity from discovery occurred. Depending on 3TM's interpretation of the district court's order, it could conceivably 'recognize' material in the Cabrera report as its own that actually has another provenance. As such, for remand, we stress that similarities between the Cabrera report and 3TM work product are only relevant to the extent that they collectively show that Cabrera more likely than not incorporated 3TM work product into his report. We also note that if disputes between the parties persist after the foundational deposition, the district court may review the Cabrera report and any relevant 3TM work product in camera to help it determine whether a waiver occurred."

 

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Scottsdale Insurance Co. v. Universal Crop Protection

Sep 8: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-1774, appealed from the District of Minnesota. Scottsdale Insurance Company (Scottsdale) issued a general commercial liability insurance policy for the benefit of Universal Crop Protection Alliance, LLC (UCPA). The policy contained a pollution exclusion. In 2007, scores of Arkansas farmers sued UCPA, alleging one of UCPA's herbicides destroyed their cotton crops. Scottsdale then brought the instant declaratory judgment action against UCPA, seeking a ruling that the pollution exclusion relieved Scottsdale of any obligation to defend or indemnify UCPA. Scottsdale moved for summary judgment, which the district court granted. UCPA appealed, arguing the district court lacked jurisdiction and construed the pollution exclusion too broadly. The Appeals Court affirmed the district court decision.

 

    The Appeals Court said, "The Policy's pollution exclusion is broad and unambiguously relieves Scottsdale of any obligation to defend or indemnify UCPA from the cotton farmers' claims -- under either the off target drift or relofting theories of migration. . . Neither theory 'arguably' falls outside the scope of the exclusion. . . The Policy plainly excludes coverage for 'property damage which would not have occurred . . . but for the . . . migration . . . of pollutants, defining pollutants in relevant part as including any solid, liquid, gaseous or thermal . . . contaminant, including . . . . chemicals. Again, the cotton farmers' relofting theory is concerned only with the migration of a chemical, i.e., 2,4-D. This is not a case in which the plaintiffs in the underlying litigation have made vague allegations that might permit a construction arguably falling outside of the governing pollution exclusion." [internal quotations omitted].

 

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Wilcox v. Homestake Mining Company

Sep 8: In the U.S. Court of Appeals, Tenth Circuit,  Case No. 08-2282. In the case brought under the Price-Anderson Act, 42 U.S.C. § 2210, the Appeals Court must decide whether Plaintiffs alleging they suffered cancer due to exposure to radiation from Defendants' uranium mill have made a sufficient showing of causation under New Mexico law to survive summary judgment. The Appeals Court said, "We first determine the test for causation in this context, then evaluate whether the evidence submitted by Plaintiffs was sufficient to satisfy this test for summary judgment purposes."

 

    The action was originally brought by several plaintiffs who alleged they or the decedents they represented suffered from a large variety of injuries and diseases as a result of exposure to radioactive and non-radioactive hazardous substances released from Defendants' uranium milling facility in Cibola County, New Mexico. The district court entered a scheduling order requiring each plaintiff to produce expert affidavits making a prima facie showing of harmful exposure and specific causation for each alleged injury, but only three plaintiffs -- the appellants in the current action -- did so. The district court dismissed the other twenty-five plaintiffs from the action with prejudice, and that dismissal is not contested in the current appeal.

 

    The three Plaintiffs involved in the appeal and their experts opined that Plaintiffs' exposure to radiation from Defendants' operations was a substantial factor contributing to each of them developing cancer. The district court concluded that New Mexico law required a showing of "but-for causation" and that Plaintiffs' expert affidavits failed to meet that showing. The court therefore granted summary judgment to Defendants on Plaintiffs' claims. The appeal followed.

 

    The Appeals Court said, the experts evidence was "simply insufficient to meet Plaintiffs' burden of making a prima facie case that Defendants' operations either (1) were a but-for cause of their cancer, either alone or as a necessary part of a combination of different factors, or (2) would have been such a but-for cause were it not for another sufficient coincident cause." The Appeals Court said additionally, "We also note Plaintiffs have neither alleged nor presented evidence that exposure to Defendants' radiation resulted, more probably than not, in the aggravation of their cancer symptoms. Therefore, to the extent Tafoya alters the but-for test in situations where a defendant's actions aggravate but do not cause an injury, it is not applicable in this case. . . we conclude the district court correctly granted summary judgment to Defendants based on Plaintiffs' failure to make a sufficient showing of but-for causation. We therefore affirm the district court's entry of summary judgment in favor of Defendants.

 

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Cook v. Rockwell International Corp

Sep 3: In the U.S. Court of Appeals, Tenth Circuit,  Case No. 08-1224, 08-1226 and 08-1239. The owners of property near the former Rocky Flats Nuclear Weapons Plant (Rocky Flats) filed a class action against the facility's operators under the Price-Anderson Act (PAA), alleging trespass and nuisance claims arising from the release of plutonium particles onto their properties. The district court conducted a lengthy trial, resulting in a jury verdict in favor of the plaintiff class. After a series of post-trial motions, the district court entered judgment in favor of Plaintiffs, awarding a total of just over $926 million, inclusive of compensatory damages, punitive damages, and prejudgment interest. Defendants, Dow Chemical Company (Dow) and Rockwell International Corporation (Rockwell), timely appealed the judgment, and the class members filed a timely

cross-appeal.

 

    The Appeals Court said, "Exercising appellate jurisdiction pursuant to 28 U.S.C. § 1291, this court reverses and remands the case to the district court. We direct the district court to vacate the judgment and conduct further proceedings not inconsistent with this opinion."

    By way of background, Rocky Flats, located near Denver, Colorado, was established by the United States Government in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989. Operations at Rocky Flats ceased in June 1989 after the Federal Bureau of Investigation and the Environmental Protection Agency searched the facility. Rockwell was subsequently charged with, and ultimately pleaded guilty to, certain environmental crimes at the site. The facility has since undergone remediation efforts and is now designated as a wildlife refuge.

 

    In an important part of the Appeals Court ruling the court said, ". . . the date of the occurrence controls when determining whether the nuclear incident took place prior to August 20, 1988. . . While the district court's decision to focus on the date of the occurrence was correct, its instruction failed to instruct the jury how to identify the date of the occurrence. Here, the "occurrence" constituting a nuclear incident in a PAA action must arise from Defendants' release of plutonium onto Plaintiffs' properties. The jury instruction ultimately given, however, permits consideration of Defendants' conduct prior to August 20, 1988, regardless of whether an 'occurrence' causing Plaintiffs' injury took place prior to that date. This is an important distinction, because certain conduct prior to August 20, 1988, might contribute to a nuclear incident, even though the release of plutonium might not have occurred until after August 20, 1988. For instance, if a defendant began improperly storing drums containing nuclear waste in 1987 and consistently failed to maintain them, but no waste leaked from the drums until after August 21, 1988, a jury could not find the 'occurrence' took place prior to August 20, 1988. . ."

 

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McEvoy v. IEI Barge Services

Sep 7: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3494. As explained by the court, East Dubuque, Illinois, is a small town on the Mississippi River. One local company that has profited from the river's proximity is IEI Barge Services, Inc. (IEI). IEI stores coal in an outdoor pile and loads it onto river barges. As the coal is moved around, coal dust is thrown off into the air. One of IEI's neighbors, Charles McEvoy, objected to the coal dust from IEI's

operations, because it was drifting into his home; he filed suit in Federal court. McEvoy's concerns were shared by others in the area.

 

    The Appeals Court notes that this suit, ". . .is about which legal tools are available to someone who wants to shift the cost of pollution to the polluter. We must consider whether the Clean Air Act. . . The district court concluded that the Act's citizen-suit provision does not support such an action. While we have no trouble recognizing why plaintiffs are seeking a remedy, we too conclude that the plaintiffs' allegations fall outside the scope of the Act."

 

    In its final opinion, the Appeals Court said, "Recognizing the ambiguity in the text of the regulation, we asked the parties during oral argument if they could identify any specific rules or background principles in Illinois law to guide our interpretation. The parties submitted supplemental briefs on this question, and we thank them for their efforts. In the final analysis, however, we were convinced by these submissions and our own research that it is not our role to flesh out this regulation without better guidance from the competent administrative bodies. In addition, we do not exclude the possibility that an Illinois court might be able to clarify some of the ambiguity. Any statements from the Illinois executive branch -- including, but not limited to, formal or informal guidance from the Illinois Environmental Protection Agency -- should be given due consideration by any court interpreting this provision and its interaction with the Act. Without any such guidance, however, we conclude that the Fugitive Particulate Matter regulation cannot be used as the basis of a citizen's suit under the Clean Air Act."

 

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).] 

Western Watersheds Project v. Kraayenbrink

Sep 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35359. The Bureau of Land Management (BLM) is the Federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, the BLM has adopted regulations that implement its grazing management responsibilities. On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM's grazing regulations. The stated purpose of the proposed amendments was to improve the working relationships with permittees and lessees (i.e. ranchers), to protect the health of rangelands, and to increase the administrative efficiency and effectiveness of the BLM grazing management program.

 

    Plaintiffs argued that the BLM violated the National Environmental Policy Act (NEPA) by failing to take the required "hard look" at the environmental effects of the revised regulations; failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) in promulgating the 2006 Regulations. Shortly after the suit was filed, Public Lands Council and the American Farm Bureau Federation (collectively Intervenors -- two organizations that represent the interests of ranchers in the western states -- intervened on behalf of the BLM to defend the proposed amendments.

 

    The Appeals Court ruled, "Because we agree with the district court that the BLM violated NEPA and the ESA in adopting the 2006 amendments, we affirm the court's grant of summary judgment to Plaintiffs as to these claims. We also affirm the district court's permanent injunction enjoining the BLM regulations as set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq. Because the district court erred when it failed to consider Plaintiffs' FLPMA claim under the framework and with the deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), we vacate the district court's grant of summary judgment in favor of Plaintiffs on this claim and remand it for further consideration."

 

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Modesto Irrigation District v. Gutierrez

Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15214. This Endangered Species Act (ESA) case is a challenge to the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.

 

    Plaintiffs are irrigation districts in California's Central Valley whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (APA) by failing adequately to explain its decision to adopt a new policy for classifying the fish.

 

    The Appeals Court said, "We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). We therefore affirm."

 

    In its conclusion the Appeals Court said, "The two narrow issues before this panel involve first a question of statutory interpretation and second, whether an agency provided an adequate justification for a policy change. We agree with the district court that the definition of "species" in the ESA did not require NMFS to place interbreeding steelhead and rainbow trout in the same DPS. We further hold that, under the Supreme Court's decision in Fox, NMFS sufficiently justified its decision to apply the DPS Policy to O.mykiss. We therefore affirm the district court."

 

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Sheffield v. City of Fort Thomas

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5619. Plaintiff William Sheffield challenges several municipal ordinances enacted by the city of Fort Thomas, Kentucky, alleging that the ordinances violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations. The district court rejected all of Sheffield's challenges.

 

    The case involves the fact that between 1950 and the present day, the deer population within the state of Kentucky increased approximately five-hundredfold. According to the Kentucky Department of Fish and Wildlife Resources (DFWR), "deer are reaching a saturation point in many parts of the Commonwealth." Among the regions is the heavily wooded area surrounding the city of Fort Thomas (a suburb of Cincinnati, Ohio), whose residents have suffered increasingly from motor vehicle collisions with deer, landscaping damage due to deer, and other cervid-perpetrated problems. Eventually, the members of the Fort Thomas City Council decided to take action.

 

    Beginning in October 2006, a city administrative officer worked with DFWR representatives to develop a deer-management plan. Various options were considered, ranging from implementing a catch-and-release program to administering a birth-control drug derived from pig ovaries. In the end, the City Council opted for a three-part approach: (1) educating the public about deer-control tactics; (2) prohibiting deer feeding; and (3) permitting the hunting of deer by bow and arrow within the city limits, which DFWR representatives had advised was the most effective means of controlling the deer population in an urban area.

 

    Plaintiff, Sheffield claims are: (1) that all three Ordinances are preempted by Kentucky Statutes, which broadly regulates the Commonwealth's wildlife resources, and/or by Kentucky Administrative Regulations, which more concretely regulates hunting; (2) that the Bow-and-Arrow Ordinance violates the Due Process Clause of the Fourteenth Amendment of the United States  Constitution and the Kentucky Constitution because it infringes on his asserted "fundamental right to be free from a risk of serious bodily harm" and/or lacks a rational basis; and (3) that the Deer-Feeding Ordinance violates those same constitutional provisions because it is void for vagueness.

 

    The district court rejected all of Sheffield's challenges. The Appeals Court said, "With one exception, we agree with that conclusion. We hold, however, that the district court erred in concluding that Kentucky administrative regulations have no preemptive force as against Kentucky municipal ordinances. We therefore affirm in part and reverse in part."

 

    Access the complete opinion (click here).