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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