Monday, October 24, 2011
Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.
In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."
Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).
In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.
Wyoming's NFMA claim must therefore fail."
Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . . As discussed. . . Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."
A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.
Tim Preso, an Earthjustice attorney representing the conservation groups said, "The public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."
Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."
The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."
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Oct 21: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 10-14703 & 10-14741. Appealed from the United States District Court for the Northern District of Georgia. In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in Marietta, Georgia. They have had a variety of different job responsibilities, time periods of employment, and work areas at the Lockheed facility, but they all have worked with and around beryllium-containing products.
According to the Plaintiffs, any action that disturbs the surface layer of beryllium ceramic or metal can produce respirable particles. Sandblasting, polishing, drilling, and other types of high-velocity abrading are especially likely to generate respirable particles. In 1948, the Atomic Energy Commission established an exposure standard for beryllium of 2.0 μg/m³. This exposure standard was adopted by the Occupational Safety and Health Administration (OSHA") and remains in place today. The Plaintiffs assert that even though this remains OSHA's standard, the beryllium manufacturing industry has long known that this standard is
inadequate to keep workers safe from the effects of respirable beryllium.
The Plaintiffs claim that their handling of beryllium or their presence in areas where beryllium was being handled led to three of them contracting chronic beryllium disease (CBD), and nine of them getting beryllium sensitization, a precursor to CBD. The plaintiffs sued Lockheed and various manufacturers of beryllium parts in Georgia state court alleging a number of claims, of which only the failure-to-warn claims remain. The defendants removed the action to the District Court for the Northern District of Georgia.
After a year-and-a-half of extensive discovery, the defendants moved for summary judgment. Although the district court originally denied the defendants' motions for summary judgment, the court later reversed itself and, in September 2010, granted summary judgment on the basis of the "sophisticated user doctrine" and the lack of direct causation. The plaintiffs appealed the rulings.
The Appeals Court agreed with the district court and ruled, ". . . the Plaintiffs have failed to make a showing sufficient to create a genuine issue of fact that the Defendants possessed information regarding a hazard of beryllium and that Lockheed lacked actual knowledge of that hazard. The Plaintiffs have failed with respect to both prongs; the Plaintiffs have failed to show either that Lockheed lacked knowledge of a particular hazard, or that these Defendants did have knowledge of that hazard. The overwhelming evidence in this record shows that Lockheed was a learned and sophisticated user of beryllium, and, if anything, possessed knowledge superior to that of these four Defendants.
After a review of the briefs and the evidence cited by the parties. . . as well as the benefit of oral argument, we conclude that the Plaintiffs have not adduced any evidence that would rebut the Defendants' defense that Lockheed Martin was a learned intermediary and a sophisticated user of beryllium. Accordingly, we affirm the judgment of the district court."
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