Friday, September 17, 2010
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The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking.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 . . . "
Access the complete opinion (click here).
Posted by WIMS at 4:04 PM
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."
Access the complete opinion (click here).
Posted by WIMS at 4:01 PM