Thursday, July 29, 2010

Alliance For The Wild Rockies v. Cottrell (USDA)

Jul 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35756. The Alliance for the Wild Rockies (AWR) appealed the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral arguments, the Appeals Court issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). The Appeals Court says that In its current opinion, it is setting forth its reasons for the reversal, and taking the opportunity to clarify an aspect of the "post-Winter standard for a preliminary injunction."
    In its conclusion the Appeals Court said, "We conclude that the district court erred in denying AWR's request for a preliminary injunction. AWR has established a likelihood of irreparable injury if the Project continues. AWR has also established serious questions, at the very least, on the merits of its claim under the ARA
[Appeals Reform Act]. Because AWR has done so with respect to its claim under the ARA, we do not reach its claims under NFMA and NEPA. The balance of hardships between the parties tips sharply in favor of AWR. Finally, the public interest favors a preliminary injunction."
    The Appeals Court also discusses the post-Winter issues (i.e. the Supreme Court's recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08] and notes that, "Three other circuits have directly confronted the question whether some version of a sliding scale test has survived Winter. They have split. The Fourth Circuit has held that the sliding scale approach is now invalid. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir.
2009) . . . The Seventh and Second Circuits have held to the contrary [i.e. Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) &  Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)]. The Ninth Circuit also notes that, The Second Circuit decision came down after the Supreme Court had decided two post-Winter cases, Munaf v. Geren, 553 U.S. 674 (2008), and Nken v. Holder, 129 S. Ct. 1749
    The Ninth Circuit says, "For the reasons identified by our sister circuits and our district courts, we join the Seventh and the Second Circuits in concluding that the 'serious questions' version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter."
    Access the complete opinion (click here).

Vidiksis v. U.S. EPA

Jul 28: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-12544. In this Petition for Review of a Decision of the Environmental Appeals Board, the Appeals Court explains that in 2005, the U.S. EPA filed an administrative complaint against Petitioner John P. Vidiksis. The complaint alleged 69 violations of the Toxic Substances Control Act (TSCA) section 409, 15 U.S.C. § 2689; the Residential Lead-Based Paint Hazard Reduction Act of 1992, and the Federal regulations promulgated thereunder.
    An Administrative Law Judge for the EPA (ALJ) found Vidiksis liable on each of the 69 counts and assessed a civil penalty of $97,545. On appeal, the Environmental Appeals Board (EAB) affirmed the decision of the ALJ as to the liability finding and the penalty amount. Vidiksis then appealed to the Eleventh Circuit which affirmed the EAB's ruling on liability and on the penalty amount.
   The bulk of the violations were based on Vidiksis's breach of § 745.113(b)(2), requiring the lessor to state either that lead paint is present at the property, or that the lessor has "no knowledge" of the presence of any lead paint at the property. The EAB interpreted this provision to require the lessor to make "one of two affirmative statements" -- to either disclose what the lessor knows about lead-based paint in the housing or to affirmatively state that the lessor has no knowledge of the presence of lead-based paint and/or hazards in the housing. Vidiksis argues that his lead paint notice fulfilled his obligations under § 745.113(b)(2). However, Vidiksis stated only that the premises "may contain lead-based paint," and the Appeals Court said it "therefore did not comply with § 745.113(b)(2). A statement that the premises 'may contain' leadbased paint is insufficient because it does not indicate to the lessee whether the lessor has knowledge of the presence of lead-based paint or does not know one way or the other."
    On the assessed penalty, the Appeals Court said in part, "The ERP [EPA's calculation of the penalty was based on the U.S. EPA, Office of Regulatory Enforcement, Section 1018 - Disclosure Rule Enforcement Response Policy for the Lead Paint Disclosure Rule (Feb. 2000)] clearly takes it [i.e. degree of culpability] into consideration. Simply because Vidiksis disagrees with the manner in which the agency has chosen to take it into consideration does not make the agency's interpretation arbitrary or capricious."

    Access the complete opinion (click here).