Friday, April 8, 2011
Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35647. Appealed from the United States District Court for the District of Oregon. According to the Appeals Court, Plaintiffs-Appellants Fred Gardner and Concerned Citizens for Little Canyon Mountain (sometimes collectively Gardner) brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure Act (APA), seeking to compel Defendant-Appellee United States Bureau of Land Management (BLM) to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. The district court granted summary judgment to the BLM. On appeal, Gardner asserts that the BLM's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976 (FLPMA) and off-road vehicle regulations, 43 C.F.R. pts. 8340-8342.
The Appeals Court affirmed the district court decision and said, "We hold that the BLM did not, and was not required to, make a finding that the off-road vehicle use of which Gardner complains had caused 'considerable adverse effects' on the resources enumerated under 43 C.F.R. § 8341.2(a) and, accordingly, we cannot compel the BLM to act to close Little Canyon Mountain to off-road vehicle use. We also hold that the BLM's denial of Gardner's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious."
Access the complete opinion (click here).
Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that Section 7 of the Endangered Species Act (ESA), § 1536(a)(2), requires interagency consultation for any Federal agency action that may affect a listed species. In this opinion, the Appeals Court determines whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.
The majority Appeals Court said, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process."
The majority concludes, "The mining laws provide miners like The New 49'ers with the 'right, not the mere privilege' to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS's limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action."
In a lengthy dissenting opinion the dissenting Judge said, "I respectfully but emphatically dissent from the conclusion of the majority to the contrary." He said, "I would therefore hold that the Forest Service must consult with the Fish and Wildlife Service and the National Marine Fisheries Service before allowing suction dredge mining to proceed under NOIs in the Klamath National Forest. . . The majority attempts to minimize the impact of suction dredge mining, stating it is 'best described' as moving 'a few cubic inches at a time' and 'affect[ing] about one quarter of a cubic yard of the river.' Maj. Op. at 4648, 4653. A typical suction dredge picks up from the bottom of the stream and deposits in a tailings pile about one-quarter of a cubic yard of material per day. A cubic yard contains 11,664 cubic inches. Many square yards of stream bottom are scoured in order to obtain one-quarter of a cubic yard of movable material per day, but the record does not tell us how many."
Access the complete opinion and dissent (click here).
Apr 7: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5112. Appealed from the United States Court of Federal Claims. The Appeals Court explains that, the government appeals three categories of damages awarded by the United States Court of Federal Claims for the government's breach of its commitment to dispose of Plaintiff's spent nuclear fuel. The contested categories are as follows: First, the trial court awarded Plaintiff the cost of certain site modifications that the government contended were not proved to have been caused by the breach. Second, the court awarded damages to account for certain indirect overhead expenses that accompanied Plaintiff's mitigation activities, though Plaintiff did not offer proof that the mitigation actually caused specific categories of these indirect overhead expenses to increase. Third, the court awarded Plaintiff the cost of interest payments made in connection with Plaintiff's financing of its mitigation activities. Energy Nw. v. United States, 91 Fed. Cl. 531 (2010).
The Appeals Court ruled, "We hold that the Court of Federal Claims erred by failing to require Plaintiff to prove that its site modifications were actually caused by the government's breach. We hold that the court was correct in its treatment of Plaintiff's indirect overhead expenses. And we hold that, because the government did not waive its sovereign immunity against the recovery of interest, the court erred in awarding Plaintiff recovery of its interest costs. We therefore vacate the Court of Federal Claims' judgment as to the site modifications, affirm as to the indirect overhead expenses, reverse as to the interest recovery, and remand." In its final conclusion the Appeals Court said, "We therefore vacate the Court of Federal Claims' award of damages for the Columbia plant modifications, affirm the award for indirect overhead expenses, reverse the award of interest, and remand for further proceedings."
Access the complete opinion (click here).
Posted by JPMcJ at 4:37 PM