Special Holiday Offers For eNewsUSA

It's the Holiday season and we're in the Holiday Spirit.

 

The Environmental Appeals Court Blog is on Holiday break until January 3, 2011. But, now is a great time to review the full text of every issue of our eNewsUSA Daily Environmental Briefing Report for the first half of December 2010, and get ready to be on top of all the major environmental and energy issues in 2011. We've posted the first 13 issues of December 2010 for your review. You can access the issues on a special blog established just for this promotion (click here).

 

We have two Holiday specials that could be a valuable gift for you and/or a statewide business association which you are affiliated with. You can subscribe now to receive eNewsUSA at a special half-off rate for 2011 -- just $119.50 (until the end of February).

 

Or, if you are a member of a statewide business association (non-Michigan), we also have a special redistribution option for Associations that can offer even greater savings for you and your association members. See details (click here).

Minch Family LLLP v. Buffalo-Red River Watershed

Dec 15: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3223. According to the Appeals Court, during contentious litigation in Minnesota state court, a judge entered an order authorizing the Buffalo–Red River Watershed District (BRRWD) to "clean out" or remove accumulated silt and topsoil from a ditch running next to a road along the length of one of A. R. Minch's fields. The Minch Family LLLP later sued BRRWD in federal court under contending BRRWD exceeded the scope of the clean-out order by entering upon Minch's property. Minch alleged causes of action for trespass, nuisance, and the wrongful death of A. R. Minch. The district court granted appellees' motion for judgment on the pleadings' finding Minch's claims were: (1) barred by the Rooker-Feldman doctrine; (2) res judicata; and (3) insufficient to state causes of action as pled. The Appeals Court affirmed the district court ruling.

    Access the complete opinion (click here).

Heartwood, Inc. v. Elizabeth Agpaoa

Dec 13: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5761, appealed from the Eastern District of Kentucky at Lexington. As explained by the Appeals Court, Plaintiffs-Appellants Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively Heartwood) are non-profit corporations active in forest and species protection. Heartwood appeals the district court's judgment granting Defendants-Appellees Elizabeth L. Agpaoa, the Regional Forester for the Daniel Boone National Forest (Forest), and the U.S. Forest Service (collectively Forest Service) judgment on the administrative record. Heartwood claims that the Forest Service enacted the 2004 Forest Plan (Plan) for the Forest in violation of the procedures mandated by the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA).

 

    Specifically, Heartwood alleges that, in promulgating the Plan, the Forest Service failed to consider a "no commercial logging" alternative and account for the environmental effects of herbicide use through an environmental impact statement (EIS). Heartwood also challenges the Forest Service's environmental assessment (EA) for the 2003 Ice Storm Recovery Project (Project) in the Forest, undertaken pursuant to the Plan; on this issue, Heartwood argues that the EA inadequately addressed the effects of herbicide application in the Project. Heartwood brings these claims against the Forest Service, a federal agency, under the Administrative Procedure Act (APA).

 

    The Appeals Court reversed the district court's judgment which denied Heartwood's motion and instead entered judgment in full for the Forest Service; and remanded the case to the district court with instructions to "dismiss for want of jurisdiction." The Appeals Court said, "Unfortunately, Heartwood seems to have lost sight of the forest of constitutional standing for the trees of associational and agency standing, and it fails to allege with adequate specificity the central element of injury in fact"; and ruled, "Heartwood's standing affidavits are too general in their identification of 'site-specific activities [that] diminish[] or threaten to diminish their members' enjoyment of the designated' forest sub-sections, so Heartwood does not have standing to maintain this action." The Appeals Court cited Ctr. For Biological Diversity v. Lueckel, 417 F.3d at 537 (6th Cir. 2005).

 

    Access the complete opinion (click here).

Arrow Gear Company v. Downers Grove Sanita

Dec 10: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 09-1509, 09-4030. The Appeals Court explains that in 2008 the appellees, Arrow and Precision, brought separate suits under section 113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), seeking contribution -- seeking to shift some of the costs that Arrow and Precision had incurred, as a result of having been found liable for groundwater contamination, to other polluters of the same site.

 

    Those other polluters are the defendants in Arrow's and Precision's suits. The district court dismissed the suits as barred by res judicata [i.e. a matter already judged]. The Appeals Court said, "We have consolidated the appeals, but discuss only Arrow's appeal because Precision's presents no additional issues. We address issues of appellate and trial-court jurisdiction, res judicata, and interpretation of settlement agreements."

 

    In 2004 a class action, Muniz v. Rexnord Corp., was brought in federal district court on behalf of residents of the contaminated area against a number of the polluters, including Arrow, on a variety of grounds. The suit asked for damages, mainly for impairment of property values. The parties agreed in 2006 to a settlement of (in round numbers) $16 million. The defendants had then to allocate the expense among them, and they did so in a series of agreements.

 

    The Appeals Court said in its conclusion, "It would have been difficult to settle all possible claims by the cross-claiming defendants before their total liability was determined. So claim splitting -- allocation of the $16 million first, and of the additional $5 million (which will doubtless grow) second -- made sense, and the district court should not have forbidden it. True, the order dismissing Muniz had not mentioned the settlements, and some of them had postdated the dismissal. But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order.

 

    But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order. Were there doubt about the scope of the settlements, we would have to remand for further proceedings to still that doubt. But there is no doubt that the settlements confine release to claims by defendants against one another concerning the allocation of the $16 million. So the defendants have no defense of res judicata to the present suits, and the judgment of the district court is therefore reversed with instructions to reinstate the suits."

 

    Access the complete opinion (click here).

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National Association of Home Builders v. San Joaquin Valley

Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17309. In this important case, in response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act.

 

    The district court held that Rule 9510 is not preempted and the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (Act), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley

Unified Air Pollution Control District (District), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an 'indirect source review program' under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control 'standard' for construction equipment that has not been approved by the Environmental Protection Agency (EPA)."

 

    Access the complete opinion (click here).

Wild Fish Conservancy v. Salazar

Wild Fish Conservancy v. Salazar - Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35531. The Appeals Court explains that it is "faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species." It says the fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact. The legal action was brought by the Wild Fish Conservancy (the Conservancy), and centers on a biological opinion (BiOp) addressing the effects of the operations of the Leavenworth National Fish Hatchery (the Hatchery) on the bull trout. See U.S. Fish & Wildlife Service, Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter 2008 BiOp].

 

    The bull trout is listed under the Endangered Species Act (ESA), as threatened throughout its range. The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (the Service), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. In a split decision, the majority Appeals Court ruled that, "Because the Service in several respects failed to articulate a rational connection between the facts found and the 'no jeopardy' conclusion, we reverse and remand."

 

    The majority concluded, "We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "In sum, the Service provided a rational basis for its no jeopardy conclusion. To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action. I therefore disagree with my colleague's conclusion that the Service's analysis in the 2008 BiOp is irrational. For these reasons, I respectfully dissent from Parts II.A, II.B, II.E and III. of the majority opinion, but otherwise concur."

 

    Access the complete opinion and dissent (click here).

Carijano v. Occidental Petroleum Corp.

Dec 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 and 08-56270. The Appeals Court explains that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (Occidental), along the Rio Corrientes in the northern region of Peru. Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste.

 

    Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. The majority Appeals Court said that Plaintiffs timely appeal the dismissal of their suit. Occidental cross-appeals from the district court's determination that its Rule 12 motion to dismiss Amazon Watch for lack of standing is moot.

 

    Also, the Appeals Court rules, "Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."

 

    In the split decision, the majority Appeals Court concluded, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens [i.e.inappropriate forum] and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."

 

    The dissenting Judge indicated in his concurring in part, dissenting in part opinion, "I agree that conditions on dismissal might be appropriate. However, I would not re-analyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. Creative Tech., Ltd. v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 699 (9th Cir. 1995). The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference."

 

    Access the complete opinion (click here).

Center For Biological Diversity v. USDA

Dec 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17233. The United States Department of Agriculture (USDA) appealed the district court's grant of summary judgment in favor of the Center for Biological Diversity (CBD), which required USDA, under the Freedom of Information Act (FOIA), to disclose the GPS coordinates of wolf depredations to which it had responded. The district court held that the coordinates were not exempt from disclosure under FOIA Exemption 3 or Exemption 6.

 

    The Appeals Court reversed the district court ruling and said, "Exemption 3 applies because Section 8791 of the Food, Conservation, and Energy Act of 2008 (FCEA) exempts from disclosure such geospatial data and applies to this case even though it took effect after the USDA withheld the coordinates." The Appeals Court said further that, "In light of this conclusion, we do not reach the question of whether Exemption 6 also applies."

 

    Access the complete opinion (click here).