Tuesday, January 26, 2010

United Farm Workers Of America v. U.S. EPA

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35528. According to the majority decision, "A single issue is presented by this case: Was an appeal from a decision of the Environmental Protection Agency (the EPA) filed in the right court? In the background are the merits of the litigation centered on the continued use of the pesticide Azinphos-Methyl (AZM). Our task is not to decide the merits but to ascertain the appeals process established by Congress."

While perhaps not relevant to the decision, by way of background, in the case EPA used a cost-benefit analysis to allow the continued use of a highly toxic chemical, AZM. The adverse effects of AZM on people exposed to AZM, such as agricultural workers, include headache, nausea, and dizziness. Anxiety and restlessness are also prominent. Worsening may result in twitching, weakness, tremor, incoordination, vomiting, abdominal cramps, diarrhea. In 2006, after receiving written comments from the public (notice and comment), the EPA issued an order that permitted growers to continue spraying of AZM on certain crops until 2012, after which the use of AZM would be “phased out.”

In short, according to the dissenting opinion, "without hearing any witness testimony or reviewing anything other than the submission of written comments, the EPA struck the cost-benefit analysis in favor of the AZM manufacturers and the growers who use AZM and against the agricultural workers and the environment. Because AZM’s toxic effects endanger the health of agricultural workers, the plaintiff-appellants, United Farm Workers of America (Farm Workers) opposed the continued use of AZM and challenged the EPA’s order in federal district court."

The dissenting opinion explains that, "To resolve this case we are required to interpret the words 'public hearing' under Section 16(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. Under § 16(b), whether the Farm Workers should have filed for review in federal district court or in the federal court of appeals depends on whether the EPA’s notice and comment procedure amounted to a “public hearing.” 7 U.S.C. § 136n(b). Simply put, if there was a public hearing, the Farm Workers would have been correct to file in the court of appeals. 7 U.S.C. § 136n(b). If there was not a public hearing, the Farm Workers were correct to file in district court. 7 U.S.C. § 136n(a)-(b)."

The majority ruled, "We hold that the choice of the district court by United Farm Workers of America and the other appellants (collectively Farm Workers) was mistaken and that the district court correctly dismissed their suit for lack of jurisdiction." The majority said further, "Jurisdiction in the Court of Appeals is conferred after an order is issued by the EPA 'following a public hearing.' Does the addition of 'public' alter the meaning of 'hearing'? It seems unlikely. If it did, there would be actions by the Administrator following 'a hearing' for which no review was provided. 'Hearing' and 'public hearing' should be read in tandem. Context does determine that 'the hearing' contain written submissions; otherwise, judicial review would be awkward. . . On this construction, review of the contested decision in this case should have been sought in this court. Unfortunately for the appellants it is now too late to seek it here. Petitions for review must be filed 60 days after the decision. . . The time is past."

The dissenting justice said in a lengthy dissent, "The Farm Workers sought review in the district court. They correctly determined that the court of appeals lacked jurisdiction to hear their challenge to the EPA’s order because the only evidentiary material presented to the EPA was in the form of written comments. The Farm Workers correctly concluded that this limited process did not constitute a public hearing. . . The majority would affirm the district court’s ruling that the EPA’s solicitation of written comments from the public is a 'public hearing' under § 16(b) and that the Farm Workers should have filed their challenge to the EPA’s order in the court of appeals. . . I disagree."

Access the complete opinion and dissent (
click here).

Hells Canyon Preservation v. U.S. Forest Service

Jan 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35456. Plaintiffs-Appellants Hells Canyon Preservation Council and The Wilderness Society (collectively, HCPC or plaintiffs) brought suit against the United States Forest Service (Forest Service or Service), seeking a judgment declaring: (1) that the Forest Service has failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that the Forest Service’s description of the wilderness boundary is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) that the Forest Service’s failure to close the Lord Flat Trail to motorized vehicle use is an “agency action unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706(1).

Plaintiffs also seek an injunction to close the Lord Flat Trail to motorized vehicle use. The district court held that each of plaintiffs’ claims was barred by the Administrative Procedure Act’s (APA’s) six-year statute of limitations. The Ninth Circuit majority said in a split decision, "Although we rely on different reasoning, we affirm the judgment of the district court." In conclusion the majority ruled, "Over a three-year period, between 1978 and 1981, the Forest Service considered the evidence, consulted the controlling statutes, and then acted to comply with the Wilderness Act by publishing the boundary description. From that time, plaintiffs had six years in which to air their disagreement. They did not. We see no reason to entertain their attempt to revive their disagreement by labeling the Forest Service’s actions as an ongoing failure to act."

In the partial dissent, one of the Justice's ruled, "I concur in the majority’s analysis of the first two claims. Plaintiffs do not have standing to challenge the Forest Service’s failure to retain the original map of the Hells Canyon Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that the boundary description is arbitrary and capricious is barred by the six-year statute of limitations. Maj. op. Part II-B. I respectfully dissent, however, from the majority’s analysis of the third claim. Maj. op. Part II-C. . . In my view, Plaintiffs have asserted a viable claim to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1)."

Access the complete opinion and dissent (
click here).