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.

 

    Access the complete opinion (click here).