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We'll be back on Tuesday, January 3, 2012.

Happy Holidays

 

Subscribers & Readers Note:

 

WIMS will be off the next two weeks for our annual Christmas/New Year's holiday break and return on Tuesday, January 3, 2012, to begin our 32nd year.

 

We wish all of our subscribers & readers a happy and safe holiday season and wish you well in the coming new year. Thank you all for your continuing support.

Dietrich Bergmann v. Michigan State Transportation Commission

Dec 15: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 10-1708/1770. Appealed from the Eastern District of Michigan at Detroit. In the brief, but somewhat complicated, 5-page opinion, the Appeals Court said, "The district court partially granted Dietrich Bergmann's motion to enforce a decades-old consent decree concerning some real estate he owned in Detroit. The Appeals Court said, "In deciding which portions of the decree are enforceable, however, the court incorrectly looked to Michigan's statute of limitations, rather than the doctrine of laches. We vacate and remand."

 

    In describing the background to the case, the Appeals Court indicates that in 1979, Bergmann bought land in Detroit from the Michigan State Transportation Commission. A decade later, he sued the Commission and the Michigan Department of Transportation under the Federal Comprehensive Environmental Response, Compensation, and Liability Act. He alleged that there was contamination on the site and sought the "costs of exploratory work and of remediating" the land. In its initial pleadings, the Department asserted sovereign immunity from suit. At that time, however, the Supreme Court had interpreted the Eleventh Amendment to allow states to be sued under CERCLA. See Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). The Department later dropped the sovereign-immunity defense in its answer to Bergmann's first amended complaint.

   

    The parties settled. The district court entered a consent decree on June 21, 1991. The decree required the Department to remediate Bergmann's property by March 31, 1995. If by then the Department failed to make a good-faith effort to remediate, the decree required the Department to pay Bergmann $2,000 per month in liquidated damages on the first day of every month until the remediation was complete.

 

    The Department failed to remediate the property or to pay the liquidated damages. On July 31, 2009 -- more than 14 years after those obligations came due -- Bergmann filed a motion with the same district court to enforce the decree. In response, the Department asserted sovereign immunity, citing a change in Supreme Court precedent. The district court eventually held that the Department had waived its sovereign immunity decades earlier by abandoning its argument that immunity barred the suit. The court then granted Bergmann's motion in part: It held that Michigan's 10-year statute of limitations barred enforcement of the Department's remediation obligation, but that each of the missed $2,000 payments triggered its own 10-year limitations period. Thus, the court awarded Bergmann damages for the period between August 1999 and March 26, 2010 (the date of its order).

 

    The Appeals Court explains its decision and cites the following cases in saying, "Both parties argue that the district court misapplied Michigan's statute of limitations. But we think the court should not have applied the statute at all. As Judge Posner has explained: 'From the standpoint of interpretation a consent decree is a contract, but from the standpoint of remedy it is an equitable decree.' Cooke v. City of Chicago, 192 F.3d 693, 695 (7th Cir. 1999) (collecting cases). Thus, if a party violates a consent decree, his opponent 'must ask the court for an equitable remedy[,]' which is then 'subject to the usual equitable defenses.' Id. For this reason, the Second Circuit holds that the equitable doctrine of laches -- and not the state statute of limitations -- governs the timeliness of motions to enforce consent decrees in nondiversity cases. See Brennan v. Nassau County, 352 F.3d 60, 63–64 (2d Cir. 2003) (per curiam). We agree with the Second Circuit. . ." [Note: the doctrine of laches indicates that failure to assert one's rights in a timely manner can result in a claim's being barred by laches].

 

    The Appeals Court ruled, "On remand, therefore, the district court should apply the doctrine of laches in deciding Bergmann's motion to enforce the decree. The district court's order partially enforcing the decree is vacated, and the case remanded for proceedings consistent with this opinion."

 

    Access the complete opinion (click here). [#Remed, #MIRemed, #CA6]

 

-- GET THE LINKS! -- ALL THE TIME. . . (click here)

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Northwest Environmental Defense Center v. Brown

In Dec 12: The U.S. Supreme Court issued an order relating to the Ninth Circuit Court of Appeals decision in the case of Northwest Environmental Defense Center v. Brown (Supreme Ct docket Nos. 11-338 & 11-347) [See WIMS 5/19/11]. The order simply states that, "The Solicitor General is invited to file a brief in these cases expressing the views of the United States. Justice Breyer took no part in the consideration or decision of these petitions."

 

    In the case, Northwest Environmental Defense Center (NEDC) brought a suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and against various timber companies. NEDC argued that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits (i.e. discharge permits) from the U.S. EPA for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC said the discharges were from "point sources" within the meaning

of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES). The district court concluded that the discharges were exempt from the NPDES permitting process by the Silvicultural Rule, but, the Appeals Court overturned the decision and concluded that the discharges require NPDES permits.

 

    Regarding the Supreme Court order, David Tenny, President and CEO of the National Alliance of Forest Owners (NAFO) released a statement on the order. NAFO is an organization of private forest owners committed to advancing Federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states.  Working forests in the U.S. support 2.5 million jobs.

 

    Tenny said, "We applaud the Supreme Court for scrutinizing the Ninth Circuit's decision to disregard EPA's 35 years of success regulating forest management as a nonpoint source under Clean Water Act. The Court is hearing not only the voice of forest owners and managers across the country but also Attorneys General from 26 states who joined a brief supporting EPA's historic approach. The policy and legal importance of this case is clear.

    "For nearly four decades, the EPA has cooperated with the states under established Clean Water Act authority to build a network of Best Management Practices providing flexible and effective water quality protection during forestry operations.  This has been a Clean Water Act success story. The Ninth Circuit's decision threatens to upend this progress by replacing an efficient and flexible system that promotes clean water with a costly and inflexible permit requirement that invites additional litigation. In the end the Ninth Circuit's decision hurts forest owners and forests alike.

    "While this is a significant first step, there is no guarantee that the Supreme Court will hear the case and reverse the Ninth Circuit Court's overstep. It does, however, provide the Administration and the Solicitor General an opportunity to submit to the Supreme Court a clear and unambiguous defense of EPA's longstanding and legally appropriate approach to regulating forest roads as nonpoint sources."

    Access the Supreme Court order (click here, page 2). Access the Supreme Court docket (click here). Access a release from NAFO (click here). Access the complete Ninth Circuit opinion (click here). [*Water, *Land, *CA9, #SupCt] 

GET THE REST OF TODAY'S NEWS (click here)

Portland Cement Association v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1358, and 10-1359, Consolidated with 10-1363, 10-1366, 10-1367, 10-1369, 10-1373, 10-1374, 10-1376, 10-1379, 11-1012, 11-1244 and 10-1361, 10-1364, 10-1365, 10-1368, 10-1370, 10-1372, 10-1375, 10-1377, 11-1245. On Petitions for Review of a Final Action of the Environmental Protection Agency. In this high profile case, the Appeals Court explains that pursuant to the Clean Air Act (CAA), the U.S. EPA enacted twin rules in 2010 setting emissions standards for portland cement facilities -- one under a section called National Emission Standards for Hazardous Air Pollutants (NESHAP); and the second under a section called New Source Performance Standards (NSPS). Petitioners, Portland Cement Association and other cement manufacturers (PCA), argue that both rules violate the CAA and are arbitrary and capricious. A consortium of environmental groups including the Sierra Club (Environmental Petitioners) filed their own petition, arguing that EPA abused its discretion by declining to include greenhouse gas emissions standards in its NSPS rule.

 

    The Appeals Court said, ". . .we agree that EPA acted arbitrarily when it promulgated the final NESHAP rule and therefore grant PCA's petition for review with respect to EPA's denial of reconsideration on that issue. We also stay the NESHAP standards for clinker storage piles pending reconsideration by EPA. We deny PCA's petitions with respect to all other issues relating to NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction."

 

    In its  final summary the Appeals Court ruled, ". . .we grant PCA's petition for review with respect to EPA's denial of reconsideration of the NESHAP rule and remand the rule for further action, deny PCA's petition for review with respect to the NSPS rule, and dismiss Environmental Petitioners' petition for lack of jurisdiction. All of the standards will remain in place except for the NESHAP standards applicable to clinker storage piles, which are stayed pending reconsideration. We nonetheless urge EPA to act expeditiously on remand. . ."

 

    Regarding the Environmental Petitioners, the Appeals Court said, "At various points in their brief, Environmental Petitioners also appear to recast their petition as a challenge to EPA's 'refus[al] to act'. . . But if environmental petitioners are indeed challenging a 'refusal to act,' they should have brought their case in the district court. The Clean Air Act provides that any individual may file suit alleging that EPA has failed 'to perform any act or duty . . . which is not discretionary with the Administrator,' 42 U.S.C. § 7604(a)(2), and that '[t]he district courts shall have jurisdiction' over these suits. . . Because we lack statutory jurisdiction over environmental petitioners' claims, we have no need to consider PCA's alternative argument that environmental petitioners lack Article III standing."

 

    One Justice concurred with the opinion but wrote a lengthy comment separately saying, ". . .I write separately to observe that there is much to be said for Petitioners' argument that EPA should not be permitted to base NESHAP standards on bare emissions data, and that EPA should instead isolate the effect of emissions control technology by controlling for input quality. Because kilns are co-located with raw material quarries and because there is significant variability in the pollutant content of those raw materials, a kiln may have low emissions simply because it happens to be blessed with good inputs, not because it is using a superior control technology. But when the CAA directs EPA to set floors based on 'the emission control that is achieved in practice by the best controlled similar source,'. . . (emphases in original), it would seem to be specifically directing EPA's attention to the active steps a kiln has taken to 'control' its emissions, not simply to the level of emissions itself. . ."

 

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    Access the complete opinion (click here). [#Air, #CADC]

National Association of Home Builders v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5341. Appeal from the United States District Court for the District of Columbia. The Appeals Court explains that, the National Association of Home Builders (NAHB) and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and U.S. EPA (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable water[s]" (TNW) so as to come within the Agencies' regulatory authority under the Clean Water Act (CWA). NAHB challenges the TNW Determination as both procedurally and substantively defective.

 

    The district court dismissed the complaint for lack of subject matter jurisdiction on the ground the CWA precludes a preenforcement challenge to a TNW Determination. The Appeals Court ruled, "We affirm the dismissal on the alternative jurisdictional ground that the appellants lack standing under Article III of the United States Constitution." The Appeals Court cites previous cases and the requirements for standing saying, "The 'irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." The Appeals Court said, "We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing -- either in its own right or on behalf of its members.

 

    Access the complete opinion (click here). [#Air, #CADC]

Citizens for Balanced Use v. McAllister (U.S. Forest Service)

Dec 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36051, 09-36058, & 09-36080. Appealed from the United States District Court for the District of Montana. A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). The Appeals Court ruled that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a Congressional decision on whether to designate the area as wilderness.

 

    The Appeals Court said that, "In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA)."

 

    The Appeals Court said, "In addressing § 1502.22, the Service noted that historical data tracking changes in the volume of recreational use within the study area could not be obtained, but concluded that such data were not necessary in any event. This conclusion was apparently based on the Service's faulty determination that it was not obligated to maintain the study area's 1977 wilderness character, including 1977 opportunities for solitude, for the benefit of current users. . . We therefore hold that the Service incorrectly determined that historical volume of use data are irrelevant for § 1502.22 purposes. . . On remand, the Service must acknowledge the relevance of the missing information and comply with § 1502.22(b)'s instructions for assessing reasonably foreseeable adverse impacts despite gaps in the relevant data."

 

    In conclusion, the Appeals Court said, "We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users' ability to seek quiet and solitude in the study area. Because the Service entirely failed to consider this important aspect of its duty to maintain the study area's 1977 wilderness character, its decision is arbitrary and capricious. We affirm judgment in favor of MWA and against the Service and Citizens."

    Access the complete opinion (click here). [#Land, #CA9]

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Sierra Club v. Robert Van Antwerp (Army Corps)

Nov 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5284 consolidated with 10–5297, 10-5345. Appealed from the United States District Court for the District of Columbia.

 

    The Appeals Court explained that in 2007 the U.S. Army Corps of Engineers issued a permit authorizing the discharge of dredge and fill material into specified wetlands outside Tampa, Florida; it thereby enabled construction of a large mall. A number of firms are involved on the permittee's side in these appeals, but they are being referred to as CCTC, standing for Cypress Creek Town Center. Three environmental groups (collectively referred to as the Sierra Club) brought suit in district court to challenge issuance of the permit. The suit also names the heads of the Department of the Interior and the U.S. Fish and Wildlife Service as well, but are being considered collectively as the Corps. Plaintiffs invoked three statutes: the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Endangered Species Act (ESA).

 

    The district court issued a decision finding that the Corps had not fully complied with its obligations under NEPA and the CWA, but rejected the plaintiffs' ESA claim. It granted summary judgment for the Sierra Club on the first two claims and for the Corps on the third. CCTC and the Corps appealed, and the Sierra Club crossappealed.

 

    In summary, the Appeals Court indicates, "We affirm in part, reverse in part, and remand, concluding that the Corps did satisfy the demands of the three relevant statutes, except for failing to respond, in its treatment of the NEPA and ESA requirements, to a material contention as to the project's impact on an endangered species, the eastern indigo snake." Clarifying further in its conclusion the Appeals Court said, "Our decision here of course substantially alters the substantive merits outcome that underlay the district court's injunction. Accordingly it will be suitable on remand for the court to entertain contentions relating to  modification of that injunction. In short, we reverse the district court entirely as to the CWA; reverse it as to NEPA except insofar as the court required further explanation by the Corps as to potential fragmentation of the indigo snake's habitat; and affirm its decision as to the ESA except in so far as it found the Corps's analysis of the indigo snake issue adequate."

 

    Regarding the indigo snake, the Appeals Court said, "In both ESA and NEPA contexts, we reject the Sierra Club's wood stork claim but find that the Corps failed to adequately address indications of an adverse effect on the indigo snake. . . we must remand for further explanation by the Corps of its determination that the project was 'not likely to adversely affect' the indigo snake. We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes. . ."

 

    Access the complete opinion (click here). [#Wildlife, #Water, #Land, #CADC]

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Buffalo Marine Services, Inc. v. USA

Nov 23: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-41108. Appealed from the United States District Court for the Eastern District of Texas. The appeal arises out of an oil spill on the Neches River. Appellants challenge the National Pollution Funds Center's (NPFC's) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the Agency's claim determination and the Appeals Court affirmed the decision.

 

    By way of background, Buffalo Marine's barge collided with the TORM MARY, rupturing the vessel's skin and adjacent fuel-oil tank. As a result of the rupture, approximately 27,000 gallons of heavy fuel oil spilled into the Neches River. Buffalo Marine, the Torm, and their insurers coordinated the clean-up effort, assessed at a cost of $10.1 million.

 

    The Appeals Court said in part, "Given the evidence on record and the concessions of the parties, we find no error in the NPFC's conclusion that the claimants failed to establish by a preponderance of evidence that the acts or omissions of Buffalo Marine's barge in approaching and colliding with the TORM MARY were other than those occurring in connection with a contractual relationship with the responsible party for the TORM MARY. Because the claimants failed to demonstrate by a

preponderance of evidence that the sole cause of the spill was a third-party act or omission that did not occur in connection with any contractual relationship with the responsible party, the Torm's third-party affirmative defense could not succeed. Thus, we also find no error in the NPFC's failure to decide whether the claimants could satisfy the additional requirements in § 2703(a)(3)(A) and (B)."

 

    In its conclusion, the Appeals Court said, "We conclude that the NPFC's interpretation of 33 U.S.C. § 2703 is entitled to deference and that appellants have not demonstrated that the NPFC's denial of the Torm's third-party affirmative defense claim should be overturned under the standard set forth in the APA."

 

    Access the complete opinion (click here). [#Remed, #CA5]

 

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Egan Marine Corporation v. Great American Insurance Co. of NY

Nov 23: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1266 & 11-1346. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. Egan Marine Corporation (EMC) and Service Welding and Shipbuilding, LLC (SWS) are embroiled in a contract dispute with their insurance company, Great American Insurance Company of New York (GAIC). The dispute centers on the terms and scope of the plaintiffs' insurance policy, which indemnifies them against liability under several Federal environmental protection laws or those laws' state-law equivalents. EMC and SWS attempted to invoke their policy for up to $10 million in coverage following an explosion on one of their vessels that resulted in an oil spill in the Chicago Sanitary and Ship Canal. They intended to apply that amount against any legal liability and costs they incurred as a result of the incident. GAIC contends that, under the terms of the policy, the spill rendered available only $5 million in coverage.

 

    Additionally, the parties disagree about the amount GAIC owes EMC and SWS pursuant to a post-explosion agreement between them that EMC and SWS would provide cleanup and spill management services on their own behalf -- a function contractually designated to GAIC. Under this arrangement, EMC and SWS agreed to charge GAIC at "cost," but each party disputes the other's understanding of and method of calculating "cost." The Appeals Court affirmed the judgment of the district court.

 

    In this complicated and detailed case, the district court granted GAIC judgment on the pleadings with respect to the following: (1) it owed $5,000,000 per vessel, per incident and had fully honored the policy with respect to the EMC 423; (2) it owed no

coverage for either the Lisa E or the EMC 423 for in rem liability ["with respect to the thing itself" (i.e., the collateral)]. It denied any further judgment on the pleadings. The district court then granted EMC and SWS's motion for summary judgment on their breach of contract claim, finding that GAIC owed $5,000,000 in coverage for the Lisa E, was obligated to pay defense costs up to that amount, and had breached its contract by not doing so. It denied summary judgment on their claim that GAIC breached its duty of good faith and fair dealing.

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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Greater Yellowstone Coalition v. State of Wyoming

Nov 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-36100, 10-35043, 10-35052, 10-35053, and 10-35054. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Appeals Court provides extensive background and explains, this case involves one of the American West's most iconic wild animals in one of its most iconic landscapes. The grizzly bear (Ursus arctos horribilis) -- so named for the gray-tipped hairs that give it a 'grizzled' appearance -- is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones. During the nineteenth and early twentieth centuries, widespread hunting, trapping, poisoning, and habitat destruction associated with American expansion decimated the grizzly population in the West and relegated the bears to increasingly remote and rugged terrain. Since then, their survival has depended both on their own ability to adapt to their surroundings and on human ability to adapt to their presence. These seemingly irreconcilable tensions have come to a head before us in this appeal.

 

    The Yellowstone region of northwestern Wyoming, southern Montana, and northeastern Idaho is home to a grizzly population, two popular national parks -- Yellowstone and Grand Teton -- and a network of rural communities built on industries such as natural resource extraction, ranching, agriculture, and tourism. As such, it has served as a kind of living laboratory for the coexistence of people and grizzlies in close proximity. For much of the twentieth century, Yellowstone National Park's open-pit garbage dumps provided a reliable food source for the bears as well as a convenient bear-viewing opportunity for tourists. After the dumps were closed in the early 1970s due to concerns about encouraging the bears' attraction to human foods, however, grizzly mortality rates skyrocketed. By 1975 the grizzly population decline at Yellowstone and elsewhere prompted the U.S. Fish and Wildlife Service (the "Service") to list the grizzly as "threatened" in the lower 48 states under the Endangered Species Act (ESA).

 

    Since then, the Yellowstone grizzly population has rebounded, as scientists, conservationists and land managers have made unprecedented efforts to study the bear and to change those human attitudes and behaviors that unnecessarily threaten it. These efforts, spearheaded by the Service's Grizzly Bear Recovery Coordinator Dr. Christopher Servheen, culminated in the "Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area" (the Strategy), an impressive inter-agency, multi-state cooperative blueprint for long-term protection and management of a sustainable grizzly population. Interagency Conservation Strategy Team, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Mar. 2007). Shortly after the Strategy's finalization, the Service removed the Yellowstone grizzly from the threatened species list.

 

    The majority Appeals Court indicates, "The Service's delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the Service's delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the Service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections.

 

    As to the first issue, we affirm the district court's ruling that the Service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the Service's determination regarding the adequacy of existing regulatory mechanisms was reasonable."

 

    Following its analysis, the majority Appeals Court concludes, "We affirm the district court's grant of summary judgment in favor of Greater Yellowstone Coalition on the issue of whether the Service rationally supported its determination that potential whitebark pine declines did not threaten the Yellowstone grizzly bear. This is sufficient to affirm the district court's judgment vacating the Rule. However, we reverse the district court's grant of summary judgment in favor of Greater Yellowstone Coalition as to the Service's determination that existing regulatory mechanisms are adequate to protect a recovered Yellowstone grizzly population, and we direct the district court to enter summary judgment in favor of the governmental Appellants on that issue. We remand to the district court for further proceedings consistent with this Opinion. Affirmed in part; reversed and remanded in part.

    In a partial dissent, one of the Justices said, "I agree with the majority that the U.S. Fish and Wildlife Service (the Service) did not, in its delisting rule, articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear. Unlike the majority, I would hold that the agency also erred in concluding the Yellowstone grizzly is not threatened by 'the inadequacy of regulatory mechanisms.' Therefore, I would affirm the district court's decision in its entirety."

    In a release, the Natural Resources Defense County (NRDC) emphasized that the Court of Appeals panel "unanimously agreed that one of the grizzly's key food sources, the whitebark pine, has become so ravaged by climate change that the bears' future remains undeniably threatened." Louisa Willcox, senior wildlife advocate for NRDC said, "Grizzlies are still fighting for their survival in Yellowstone. Grizzly bears have made great progress in the Greater Yellowstone Ecosystem, but they are still very vulnerable, and we must maintain the protections that have brought the bears back from the brink of extinction. Since one of their key food sources is disappearing in Yellowstone, we must develop a long-term plan to help the bear adapt to the results of climate change on their habitat."

 

    NRDC explains that, "Numerous studies have shown a clear correlation between the abundance of whitebark pine cone crops and human-bear conflicts. In years with large cone crops, the bears forage at higher elevation, far from high densities of people. When cones are scarce, the bears move closer to places where more people are. While the bears are omnivores, the pine nuts offer a high calorie food source at a time when little else is available of similar nutritional value. Many researchers have expressed concern over the impact this will have on the future of the grizzly bear population, and the animals' movements in search of new food sources, in the Greater Yellowstone Ecosystem.  Recent NRDC/Forest Service research has shown that more than 80% of the whitebark pine forests in the Greater Yellowstone Ecosystem are now dead or dying due to a mountain pine beetle infestation brought on by warming temperatures."

    Access the complete opinion and partial dissent (click here). Access the Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (click here). Access a release from NRDC with links to related information resources (click here). [#Wildlife, #CA9]

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Rock Creek Alliance v. US Fish & Wildlife Service

Nov 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35596. Appeal from the United States District Court for the District of Montana. The Appeals Court indicates that Plaintiff-Appellant Rock Creek Alliance appealed the district court's grant of summary judgment in favor of Defendant-Appellee the U.S. Fish and Wildlife Service and Intervenor-Defendant-Appellee Revett Silver Company in an action brought pursuant to Section 7 of the Endangered Species Act, which requires Federal agencies to consult with the Fish and Wildlife Service before undertaking any action "authorized, funded, or carried out" by the agency that might "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat" used by any endangered or threatened species. The Appeals Court affirmed what it called the "district court's well-reasoned opinion."

 

    Revett Silver Company proposed to build and operate a copper and silver mine in northwest Montana, part of which will be on land managed by the U.S. Forest Service. Because the mine might impact two species listed as threatened under the Endangered Species Act -- the bull trout and the grizzly bear -- the Forest Service was required to engage in formal consultations with the Fish and Wildlife Service before approving the mine. As a part of those consultations, the Fish and Wildlife Service issued two biological opinions that concluded that the mine would result in "no adverse modification" to critical bull trout habitat and would result in "no jeopardy" to the local grizzly bear population.

 

    In the district court, Rock Creek Alliance challenged the biological opinions, arguing that the Fish and Wildlife Service's conclusions were arbitrary, capricious, and violated the Endangered Species Act. The district court disagreed, and granted summary judgment in favor of the Fish and Wildlife Service and Revett Silver Company. Rock Creek Alliance then appealed. After specifically addressing each of the Alliance's challenges, the Appeals Court ruled, ". . .the Fish and Wildlife Service's determination that the mine would entail 'no adverse modification' to bull trout critical habitat and would result in 'no jeopardy' to grizzly bears was not arbitrary, capricious, or in violation of the Endangered Species Act. Affirmed."

 

    Access the complete opinion (click here). [#Wildlife, #CA9]

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The Ark Initiative v. United States Forest Service

Nov 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1473. Appealed from the U.S. District Court for the District of Colorado. Plaintiffs-Appellants Ark Initiative, et al appeal from the district court's judgment in favor of the Defendants-Appellees, the U.S. Forest Service and its Chief. The district court upheld the Defendants' acceptance of the 2003 Master Development Plan (MDP), as well as a National Environmental Policy Act (NEPA) analysis, and decisions concerning the 2006 Snowmass Ski Improvements Project (Improvements Project). On appeal, Plaintiffs argue that the Defendants violated NEPA by approving the project without examining certain cumulative effects -- namely, effects on water resources, endangered fish, forest habitats, and "other resources." The Defendants counter that Plaintiffs have failed to exhaust these claims, given a significantly different argument on appeal, but that, in any event, NEPA does not require a Federal agency to examine the cumulative effects of its proposed action with those of an unrelated proposal where the proposed action will not affect the resource concerns pressed by the Plaintiffs. The Appeals Court affirmed the district court decision "based upon a failure to exhaust."

 

    The Appeals Court said, "In order to exhaust administrative remedies, claims cannot be 'only vaguely and cryptically referred to, if at all, during the administrative appeal.' See Kleissler v. U.S. Forest Service, 183 F.3d 196, 203 (3d Cir. 1999). In fact, '[c]laims not properly raised before an agency are waived, unless the problems underlying the claim are "obvious," or otherwise brought to the agency's attention.' See Forest Guardians, 495 F.3d at 1170. In their administrative appeal, Plaintiffs exhausted the water depletion issue, but not the other issues presented here, specifically: 'impacts to wildlife . . . air quality, water quality, litter, solid waste generation, visual quality, and so on.'" Finally the Appeals Court said, "Because the issues on appeal either have not been properly exhausted before the agency or preserved before the district court, the district court's judgment is affirmed."

 

    Access the complete opinion (click here). [#Land, #CA10]

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Gerard Keating v. Nebraska Public Power District

Nov 7: In the U.S. Court of Appeals, Eighth Circuit, Case No. 10-2441. Appealed from the United States District Court for the District of Nebraska. Several Nebraska farmers filed suit under 42 U.S.C. § 1983, alleging their due process rights were violated when Nebraska officials ordered the farmers to cease drawing water from the Niobrara Watershed without providing a predeprivation hearing. The Appeals Court said, "We reversed the district court's prior dismissal and remanded the matter to the court with specific instructions. On remand, the district court determined that there was no deprivation of a property right and entered summary judgment in favor of appellees. The district court also declined to exercise jurisdiction over pendent state law claims, dismissing those claims without prejudice. We agree with the district court's determination and affirm its thorough and well-reasoned decision."

 

    Explaining further, due to a decrease in water levels in the Niobrara Watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing.

 

    In this second appeal, the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing

to challenge the validity of the NPPD's permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR's determination of water scarcity.

 

    The Appeals Court said, "Appellants argue that when the DNR administers the Niobrara in a manner which requires permit holders to stop taking water, the state should conduct a hearing to give permit holders who are being issued Closing Notices an opportunity to challenge the DNR's determination that there is a scarcity requiring administration and to challenge the validity of any senior appropriator's permit. We reject this argument because when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are 'hereby given notice that [they] may be denied the use of water during times of scarcity.'"

 

    Access the complete opinion (click here). [#Water, #CA8]

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U.S. v. Donovan

Oct 31: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4295. Appealed from the United States District Court for the District of Delaware. In this important case, David Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is "wetlands" subject to the Clean Water Act (CWA). The Government brought an enforcement proceeding against him under the CWA to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. The case provides significant insight and analysis into the controversial 4-1-4 opinion of the U.S. Supreme Court in Rapanos v. United States, as well as related opinions.

 

    The District Court disagreed, granting summary judgment in the Government's favor and imposing a $250,000 fine. In the appeal, the Appeals Court is called upon to decide what test to apply in order to determine whether land is "wetlands" subject to the CWA after the Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715 (2006). The appeals Court says, "We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is 'wetlands' subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm."

 

    A Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rapanos. The Magistrate Judge then analyzed the Government's expert reports and noted that they "offered sufficient evidence to support a finding" that the first Rapanos test was met. . . and that they 'adequately show[ed]' that the second Rapanos test was met. . ."

 

    The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapanos test. As to the first Rapanos test (which the Appeals Court refers to as the '"continuous surface connection test" or the "plurality's test"), the District Court concluded that the Government "propounded significant evidence" that the test was met, and that Donovan's declaration failed to create a genuine issue of material fact as to whether the test was satisfied. The District Court was also satisfied that the Government's evidence established that the second Rapanos test (which they referred to as the "significant nexus test" or "Justice Kennedy's test") was met and noted that Donovan had largely relied on arguments by counsel concerning alleged deficiencies with the Government's evidence, but put forth no evidence of his own. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government's motion for summary judgment. Finally, the District Court denied Donovan's motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan's property is subject to the CWA.

 

    The Appeals Court further defines the two tests in Rapanos and says, "As for wetlands, the Justices in the plurality concluded that they only fall within the scope of the CWA if they have 'a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands.'" And, "Under Justice Kennedy's approach, wetlands are subject to the strictures of the CWA if they possess a 'significant nexus' with 'waters of the United States,' meaning that the wetlands, 'either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable.""

 

    In the 4-1-4 Supreme Court decision, the Appeals Court says, "At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices. So which test should apply?. . . Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices -- with their broader view of the CWA's scope -- would nonetheless support a finding of jurisdiction under either the plurality's or Justice Kennedy's test, and that therefore the Corps' jurisdiction should be upheld in all cases in which either test is satisfied."

 

    The Appeals Court said, "In sum, we find that Rapanos establishes two governing standards and Donovan's reliance on pre-Rapanos case law [i.e. Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994)] is misplaced. We hold that federal jurisdiction to regulate wetlands under the CWA exists if the wetlands meet either the plurality's test or Justice Kennedy's test from Rapanos.

 

    The Appeals Court concludes, "The District Court correctly denied Donovan's motion. Donovan contends that the Corps has jurisdiction only over wetlands that are adjacent to navigable-in-fact waters and that the Government's pleadings fail for not alleging that Donovan's wetlands are adjacent to such waters. This argument is premised on a notion that we rejected above: that Rapanos fails to create a governing standard and that, therefore, pre-Rapanos law applies. The Government's complaint need not have pled that Donovan's wetlands are adjacent to navigable-in-fact waters and hence the District Court properly denied Donovan's motion for judgment on the pleadings."

 

    Access the complete opinion (click here). Access the WIMS Special Report on Rapanos (click here). [#Water, #CA3]

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Town Of Barnstable, MA v. FAA

Oct 28:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

 

    The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

 

    The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

 

    Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

 

    The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

 

    The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

 

    "Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

 

    Access the complete opinion (click here). Access the DOI website for the project for complete background information and extensive documents (click here). [#Energy/Wind, #CADC]

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