Public Lands For The People, Inc. v. USDA

Sep 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15007. Appealed from the United States District Court for the Eastern District of California. The Appeals Court indicates in an overview of the case, "The Wild West has long conjured up images of prospectors with pack mules and pickaxes foraging for gold. The oft romanticized ways of the Wild West eventually modernized and gave way to prospecting with the aid of motor vehicles and heavy machinery." The United States Forest Service (the Forest Service), an arm of the Department of Agriculture (USDA), recently limited the use of motor vehicles to certain roads in the century-old Eldorado National Forest (ENF). Concerned about the impact of the limitation on their activities, a group of miners and prospectors challenged the Forest Service's decision. The district court dismissed the complaint, and the Appeals Court affirmed that decision.

    The Appeals Court provides some background on the case and indicates that Beginning in 2005, the Forest Service published a Notice of Intent to propose prohibitions on motor vehicle use in the ENF, held public meetings, and circulated for public comment a draft environmental impact statement on proposed travel management in the ENF. The Final Environmental Impact Statement (FEIS), issued in March 2008, recognized that if prohibitions on motor vehicle use were adopted, miners and prospectors would need to obtain permission, through a Notice of Intent or Plan of Operations, to use motor vehicles in areas where no such permission restriction existed before.

 

    The district court held that the Miners failed to establish standing and, alternatively, that they failed to state a claim upon which relief could be granted because the Secretary of Agriculture had the authority to impose the road restrictions and reasonably interpreted a Forest Service regulation pertaining to "public roads."

 

    The Appeals Court concluded, "The Miners had standing to bring this suit. Still, the Forest Service acted within its authority when it prohibited cross country vehicle traffic and limited motor vehicle use to certain designated roads in the ENF. The 'public roads' provision in 36 C.F.R. § 228.4(a)(1) does not create an exception to the 2008 Decision because the roads on which motor vehicles were prohibited ceased to be 'public roads,' as reasonably defined by the Forest Service."

 

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

 

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Native Village Of Kivalina v. ExxonMobil Corp.

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17490. Appealed from the United States District Court for the Northern District of California. In this high profile case dealing with climate change, the Native Village of Kivalina and the City of Kivalina (collectively Kivalina) appeal the district court's dismissal of their action for damages against multiple oil, energy, and utility companies (collectively Energy Producers).

 

    The 22 Energy Producers include: (1) ExxonMobil Corporation; (2) BP P.L.C.; (3) BP America, Inc.; (4) BP Products North America, Inc.; (5) Chevron Corporation; (6) Chevron U.S.A., Inc.; (7) Conocophillips Company; (8) Royal Dutch Shell PLC; (9) Shell Oil Company; (10) Peabody Energy Corporation; (11) The AES Corporation; (12) American Electric Power Company, Inc.; (13) American Electric Power Services Corporation; (14) Duke Energy Corporation; (15) DTE Energy Company; (16) Edison International; (17) Midamerican Energy Holdings Company; (18) Pinnacle West Capital Corporation; (19) The Southern Company; (20) Dynegy Holdings, Inc.; (21) Xcel Energy, Inc.; (22) Genon Energy, Inc.

    Kivalina alleges that massive greenhouse gas emissions emitted by the Energy Producers have resulted in global warming, which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina seeks damages under a Federal common law claim of public nuisance. The Appeals Court summarizes its position saying, "The question before us is whether the Clean Air Act, and the Environmental Protection Agency (EPA) action that the Act authorizes, displaces Kivalina's claims. We hold that it does."

    The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately seventy miles north of the Arctic Circle. The city, which was incorporated as a unified municipality under Alaska state law in 1969, has long been home to members of the Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans. The City of Kivalina has a population of approximately four hundred residents, ninety-seven percent of whom are Alaska Natives. Kivalina's survival has been threatened by erosion resulting from wave action and sea storms for several decades.

 

    Kivalina filed this action against the Energy Producers, both individually and collectively, in District Court for the Northern District of California, alleging that the Energy Producers, as substantial contributors to global warming, are responsible for its injuries. Kivalina argued that the Energy Producers' emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina. Kivalina's complaint also charged the Energy Producers with acting in concert to create, contribute to, and maintain global warming and with conspiring to mislead the public about the science of global warming.

 

    The Energy Producers argued that Kivalina's allegations raise inherently nonjusticiable political questions because to adjudicate

its claims, the court would have to determine the point at which greenhouse gas emissions become excessive without guidance from the political branches. They also asserted that Kivalina lacked Article III standing to raise its claims because Kivalina alleged no facts showing that its injuries are "fairly traceable" to the actions of the Energy Producers.

 

    The district court held that the political question doctrine precluded judicial consideration of Kivalina's federal public nuisance claim. The court found that there was insufficient guidance as to the principles or standards that should be employed to resolve the claims at issue. The court also determined that resolution of Kivalina's nuisance claim would require determining what would have been an acceptable limit on the level of greenhouse gases emitted by the Energy Producers and who should bear the cost of global warming. Both of these issues, the court concluded, were matters more appropriately left for determination by the executive or legislative branch in the first instance.

 

    The district court also held that Kivalina lacked standing under Article III to bring a public nuisance suit. The court also concluded that, given the remoteness of its injury claim, Kivalina could not establish that it was within sufficient geographic proximity to the Energy Producers' alleged "excessive" discharge of greenhouse cases to infer causation. Finally, the court declined to exercise supplemental jurisdiction over the state law claims.

 

    The Appeals Court explains, ". . .the right to assert a federal common law public nuisance claim has limits. Claims can be brought under federal common law for public nuisance only when the courts are 'compelled to consider federal questions which cannot be answered from federal statutes alone.' [citing: City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 314 (1981)] . . . If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill. . . 'The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue.'  [citing: American Electric Power Co., Inc. v. Connecticut (AEP), 131 S. Ct. (2011)]." [See WIMS 6/20/11].

 

    The Appeals Court indicates, "We need not engage in that complex issue and fact specific analysis in this case, because we have direct Supreme Court guidance. The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law. [again citing: AEP]

 

     The majority Appeals Court concludes, "In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties. Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law."

 

    In a lengthy, separate concurring opinion, one justice indicates, "The majority opinion holds that the Clean Air Act (CAA) and the Environmental Protection Agency (EPA) action the Act authorizes displace Kivalina's claims. I write separately to address what I view as tension in Supreme Court authority on whether displacement of a claim for injunctive relief necessarily calls for displacement of a damages claim, and to more fully explain why I concur in the majority opinion's ultimate conclusion. I also write separately to express my view that Kivalina lacks standing."

 

    Access the complete opinion and separate concurring opinion (click here). [#Climate, #Air, #Energy, #CA9]

 

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Native Ecosystems Council v. Weldon (Forest Service)

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35659. Appealed from the United States District Court for the District of Montana. The Appeals Court explains that this case arises out of Native Ecosystems Council's (Native Ecosystems Council) appeal of the district court's grant of summary judgment in favor of the United States Forest Service (Forest Service) in an action regarding the Ettien Ridge Fuels Reduction Project (the Project) in the Lewis and Clark National Forest, located in Montana. The Project was designed to reduce the spread and intensity of potential future wildfires in the Judith Basin County Wildland-Urban Interface by removing naturally occurring wildfire fuels. Native Ecosystems Council alleges that the Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it issued a Finding of No Significant Impact (FONSI) and Decision Notice approving the Project.

 

    The Appeals Court ruled, "We hold that the Forest Service took the requisite 'hard look' at the environmental impact of the Project on the elk hiding cover, and goshawk populations, in the manner required by NEPA. . . We further hold that the district court did not err in granting summary judgment to the Forest Service on Native Ecosystems Council's NFMA claims, because the Forest Service reasonably considered the 'relevant factors' that could have impacted the elk hiding cover and goshawk populations in its analysis of the Project. Accordingly, we affirm."

 

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

 

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Wolfsen Land & Cattle Co. v. Pacific Coast Federation

Sep 21: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5113. Appealed from the United States Court of Federal Claims. The case involves a takings claim arising from the government's releases of water from a dam in central California. Downstream property owners sued in the Court of Federal Claims, alleging that the releases unlawfully impaired their property rights in the water and inundated their land.

    The Appeals Court indicates, "The government had released the water in accordance with a consent order entered by a district court and expressly approved by Congress. The consent order was the result of environmental litigation pursued over a number of years by certain groups interested in the ecological fate of the river. After the present lawsuit was filed, two of these groups moved to intervene as of right, arguing that this case implicated their interests. The Court of Federal Claims denied their motion, finding that the groups' interests were sufficiently aligned with the government's as to create no foundation for intervention. Wolfsen Land & Cattle Co. v. United States, 98 Fed. Cl. 507 (May 24, 2011) (Fed. Cl. Op.). We affirm."

    The case background started in 1942, when the U.S. Bureau of Reclamation dammed the upper San Joaquin River near Friant, California. Friant Dam, which still operates today, generates electricity and collects water for agriculture. But it also caused portions of the river below to dry up, leading to the extermination of Chinook salmon and other species from areas they had previously occupied, as well as other ecological consequences.

    In 1988, a group of plaintiffs sued the federal government over the dam's operation. The Pacific Coast Federation of Fishermen's Associations and the Natural Resources Defense Council (collectively, PCFFA) were among them. They claimed that the dam's operation contravened various state and Federal environmental protection laws. For the next eighteen years, the parties litigated in the district court for the Eastern District of California. In 2006, they finally reached a settlement and releases have continued since, in accordance with the Litigation Settlement and the Settlement Act.

    In the Wolfsen case, PCFFA moved to intervene and was denied and appealed. The Federal Circuit indicates, "This court has not previously identified the standard to be applied when reviewing a trial court's denial of a motion to intervene as of right. . . Both sides cite authority from the regional circuits, which are split on the question [the various cases are citied]. The majority Appeals Court rules, "We find it unnecessary to reach this question, as we see no error in the Court of Federal Claims' judgment. Cf. Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) (finding no need to reach this issue in similar circumstances). We would affirm under both proposed standards of review. Because the question of the standard to apply is non-dispositive, we need not address it."

 

    The Court of Federal Claims ruled: First, the court held that PCFFA had failed to show a direct, non-contingent interest in this case. . . Second, the court held that even if PCFFA had alleged a protectable interest, the interest did not relate to this case in such a way that failure to permit intervention would impede PCFFA's ability to protect itself. . . Third, the court held that even if PCFFA had a protectable interest, and even if that interest related to this case in the manner contemplated by the rule, PCFFA's interests were adequately protected by the government's participation in this case. The majority Appeals Court ruled, "As set forth below, we agree, and on that basis affirm."

 

    In a separate, concurring decision, one Justice indicated, "I concur that the district court did not err in denying PCFFA's motion to intervene as a matter of right. I write separately because I do not agree that the United States -- which opposed PCFFA for years in related litigation -- can be presumed to adequately represent PCFFA in this case. . . At best, the majority has confused litigation goals with legal interests; at worst, it has unnecessarily introduced a new presumption into our cases, raising an additional bar against intervention in cases in which the government is a party."

 

    Access the complete opinion and separate concurrence (click here). [#Water, #CAFed]

 

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Earth Island Institute v. U.S. Forest Service

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16718. Appeal from the United States District Court for the Eastern District of California. The Appeals Court explains that under the National Forest Management Act (NFMA), an Agency's project is required to comply with 1982 viability requirements only to the extent they have been incorporated in the relevant forest plan. Earth Island Inst. v. Carlton, 626 F.3d 462, 470 (9th Cir. 2010). The Appeals Court said, "Here, we conclude that the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate at the project level that the Angora Fire Restoration Project (Angora Project) would maintain viable population levels of management indicator species, including the black-backed woodpecker. Therefore, the Forest Service's analysis of the Angora Project's impact on the black-backed woodpecker's habitat was not arbitrary and capricious under NFMA."

 

    Further, the Appeals Court indicated that the National Environmental Policy Act (NEPA) requires an Environmental Assessment (EA) to comply with certain procedural requirements to ensure that agencies will make informed decisions about the environmental effects of proposed Federal actions and to make this information available to the public. Ecology Center v. Castaneda, 574 F.3d 652, 656-57 (9th Cir. 2009). They said, "Here, because the Forest Service did not fail to (1) ensure the scientific integrity of the final EA, (2) properly respond to dissenting scientific opinion, (3) properly consider proposed alternatives to the Angora Project Environmental Assessment, and (4) take the requisite 'hard look' at the impacts of the Angora Project, we also conclude that the Forest Service's analysis of the Angora Project's environmental effects was not arbitrary and capricious under NEPA. Accordingly, we affirm the district court."

 

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

 

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Christopher Van Hollen, Jr. v. FEC

Sep 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5117. Appealed from the United States District Court for the District of Columbia. Appellee, Representative Christopher Van Hollen, Jr., brought a lawsuit challenging 11 C.F.R. § 104.20(c)(9), a regulation promulgated by the Federal Election Commission ("FEC"), that purports to implement § 201(f)(2)(F) of the Bipartisan Campaign Reform Act (BCRA), to require disclosure of "disbursement for the direct costs of producing and airing electioneering communications."

 

    The District Court granted summary judgment in favor of Appellee, because, in its view, in enacting 2 U.S.C. § 434(f)(2)(F), "Congress spoke plainly [and] did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking." Van Hollen, 851 F. Supp. 2d at 89. The Appeals Court said, "We disagree and reverse."

 

    The Appeals Court said, "After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC. The statute is anything but clear, especially when viewed in the light of the Supreme Court's decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007). Furthermore, we do not agree with the District Court that the words 'contributors' and 'contributed' in 2 U.S.C § 434(f)(2)(F) cannot be construed to include a 'purpose' requirement, especially when it is clear that subsection (F) only applies to 'disbursement[s] for the direct costs of producing and airing electioneering communications.'"

 

    Common Cause President Bob Edgar issued a statement on the decision saying, "American voters are the big losers in today's federal appeals court decision permitting 'independent' groups to withhold the identities of the multi-millionaires and corporations investing in the 2012 elections. This decision dooms voters' last chang[c]e of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west. People and companies making six- and seven-figure investments in candidates and causes will want something in return for their money, and the candidates who benefit from their generosity will have a powerful incentive to deliver it. That's why disclosure is so important; before we go to the polls, voters should know to whom the candidates we choose will be beholden."

 

    Access the complete 5-page ruling (click here). [#All] [Editor's Note: This is obviously not an environmental case; it may impact environmental policy making.]

 

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U.S. v. Maury

Sep 17: In the U.S. Court of Appeals, Third Circuit, Case Nos. 09-2305/09-2306/09-2345/09-2346/09-2356. On Appeal from the United States District Court for the District of New Jersey. Following an eight-month criminal trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of various crimes. These included conspiring to commit a host of environmental pollution and worker safety violations, attempting to cover up or impede Federal investigation of those violations, and substantive violations of the Clean Water Act and the Clean Air Act. Specifically, the Defendants were found to have illegally pumped contaminated water into storm drains and, as a result, into the Delaware River; to have unlawfully burned 50-gallon drums of paint waste in a cupola and emitted the fumes from those activities into the air; and to have attempted to cover up several work-related accidents at its facility, one of which resulted in the death of an employee. The jury also found that the Defendants engaged in a conspiracy to commit these acts -- and to impede the resulting Federal investigation -- in order to maximize productivity and profits at the Plant.

    The Defendants appealed from the jury's verdict, raising a litany of issues relating to pre-trial discovery, the District Court's handling of the trial itself, the propriety of certain jury instructions, and the District Court's sentencing determinations. The Appeals Court said, ". . .in light of the District Court's fine handling of these extraordinarily complicated proceedings, we will affirm the final judgments of conviction and sentence in this case."

    Without getting into all of the details in this lengthy 83-page decision, following the jury verdicts, the Defendants filed an omnibus post-trial brief that raised a multitude of challenges to the jury's verdicts and to the District Court's handling of the case. In August 2007, the District Court ruled on the Defendants' post-trial motions, rejecting the majority of those challenges, but granting Rule 29 judgments of acquittal for insufficient evidence on the following: (1) one false statement charge against Faubert and the Company, for the jury's failure to reach a verdict (Count 2); (2) one CWA charge against Davidson and the Company, concerning an alleged unlawful discharge of wastewater in September 1999 (Count 21); and (3) one CWA charge against Maury and the Company concerning an alleged unlawful discharge of wastewater in October 1999. The Court denied the Rule 29 motions as to all other counts of conviction.

    The District Court held sentencing hearings in April 2009. It sentenced Prisque to 70 months' imprisonment, Faubert to 41 months' imprisonment, Maury to 30 months' imprisonment, and Davidson to 6 months' imprisonment. As for the Company, the Court opted to apply the Alternative Fines Act (the AFA), 18 U.S.C. § 3571(c)(1), rather than the CWA and CAA, in imposing criminal penalties. Applying the AFA, the Court fined the Company the maximum penalty of $500,000 per violation on Count 1 (conspiracy), Counts 8-11 (obstruction), Counts 12-16 (CWA -- cement pit discharge), Counts 28-32 (CWA -- Number Four Pit discharge), and Count 34 (CAA) for a total fine of $8 million dollars. It also sentenced the Company to 4 years' probation, with a court-ordered monitor to ensure regulatory compliance going forward.

    The Defendants appealed the District Court's ruling in May 2009. The Appeals Court following a lengthy analysis said, "Having carefully considered the Defendants' various remaining arguments, we find them to be without merit. We therefore affirm the final convictions, judgments and sentences of the District Court, in all respects."

 

    Access the complete opinion (click here). [#Air, #Water, #Haz, #Toxics, #CA3]

 

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Textileather Corporation v. GenCorp Inc.

Sep 11: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3634. Appealed from the Northern District of Ohio at Toledo. Textileather Corporation, which purchased a vinyl manufacturing facility with hazardous waste management units (RCRA units) from GenCorp Inc., appeals from the district court's grant of summary judgment to GenCorp in this breach-of-contract and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) action. The Appeals Court affirmed in part, reversed in part and remanded the case to the district court for further proceedings consistent with its opinion.

 

    In 2001, Ohio EPA (OEPA) approved a closure plan submitted by Textileather. In its letter regarding the approved closure plan, OEPA noted that compliance with this approved plan was expected and would be monitored. Textileather appealed portions of the approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and reversed in part with instructions to OEPA to approve a plan consistent with its holding. OEPA has not yet issued a new plan. Throughout the course of the RCRA closure proceedings, including the negotiation of various plans and appeal of the approved plan, Textileather notified GenCorp that it believed, pursuant to the Asset Purchase Agreement (APA), GenCorp was obligated to indemnify and defend Textileather in these proceedings.

 

    Textileather brought the action to recover the costs it incurred in the RCRA closure proceedings. Textileather and GenCorp filed cross-motions for summary judgment, and the district court granted GenCorp's motion and denied Textileather's motion. In particular, the district court held the APA to be unambiguous and determined that, under the terms of the APA, OEPA did not constitute a "third party" and Textileather's RCRA closure proceedings with OEPA did not constitute a "claim or action."

    The Appeals Court ruled that, "OEPA was not a party to the APA, so it fairly falls under the common meaning of 'third person. . . we reverse the district court's decision granting summary judgment to GenCorp and instruct the district court to enter summary judgment in favor of Textileather on the legal question of whether the retained liabilities section applies. We remand this case to the district court for proceedings to determine the appropriate allocation of costs and damages under the terms of that provision. . . the district court properly concluded that the allocation and assumption of liability provisions apply to CERCLA claims as well. GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2."

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

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Pacific Coast Federation v. Blank (Commerce Dept.)

Sep 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17108. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that in 2011, the National Marine Fisheries Service (NMFS) and the Pacific Fishery Management Council (Pacific Council or Council) adopted changes to the fishery management plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the PacificCoast Groundfish Fishery Management Plan, are designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future decisionmaking.

 

    Plaintiffs-Appellants Pacific Coast Federation of Fishermen's Associations, et al. (plaintiffs) are a collection of primarily non-trawl fishermen's associations and groups whose longtime participation in the fishery may shrink under Amendments 20 and 21. They argue that the Amendments are unlawful under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which imposes procedural and substantive requirements for managing fisheries, and the National Environmental Policy Act (NEPA), which imposes purely procedural requirements for reviewing the potential environmental effects of proposed agency actions.

 

    The district court granted summary judgment to the defendants. The Appeals Court affirmed the district court decision and said, "NMFS complied with the MSA's provisions, which required the agency to consider fishing communities but did not require it to develop criteria for allocating fishing privileges to such communities or to restrict privileges to those who 'substantially participate' in

the fishery. NMFS also complied with NEPA by preparing a separate study for each amendment, analyzing a reasonable range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures designed, in part, to lessen the potential adverse effects of Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck between competing objectives, but they do not show that NMFS exceeded its statutory authority under the MSA or ignored its obligations under NEPA."

 

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

 

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Colorado Department Of Public Health v. United States

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1554. Appealed from the United States District Court for the District of Colorado. The Appeals Court explains that since the 1950s, the United States has stored chemical weapons at the Army's weapons depot located near Pueblo, Colorado (Depot). Congress has now mandated that the Army destroy those weapons by 2017. Separately, Congress authorized the State of Colorado to regulate hazardous waste in that State. Invoking that regulatory authority, Plaintiff-Appellant Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (Colorado or CDPHE), has declared the chemical weapons stored at the Depot awaiting destruction to be hazardous waste. In this action, Colorado seeks to enforce against the Depot Colorado's regulation prohibiting storage of any hazardous waste.

 

    The Appeals Court said, "The specific question presented by this appeal is whether Congress's mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado's enforcement against the Depot of its regulation prohibiting storage of any hazardous waste. This case thus lies at the intersection of congressional mandates that, under these circumstances, support opposing positions. Based on the fact that Congress 1) delegated to Colorado the authority to regulate hazardous waste, so long as the State's regulations are at least as stringent as federal hazardous waste regulations, and 2) required federal agencies to follow such state hazardous waste regulation, Colorado argues that the United States, in operating the Depot, must comply with the State's prohibition against storing hazardous waste. Based instead on the fact that Congress mandated that the Army destroy the chemical weapons at the Depot and gave the Army until 2017 to complete their destruction, the United States argues it cannot comply with Colorado's regulation prohibiting the storage of any hazardous waste."

 

    The Appeals Court continued and concluded, "This difficult case requires us, then, to choose between opposing congressional mandates. Ultimately we are persuaded by the detailed manner with which Congress has addressed and mandated the destruction of the chemical weapons stored at the Depot to conclude that that federal law preempts Colorado's attempt to regulate that destruction process by enforcing its prohibition of the storage of hazardous waste against the Depot. Therefore, having jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision to dismiss Colorado's claims against the United States. . . we conclude that 50 U.S.C. §§ 1512a and 1521 preempt Colorado's application of its prohibition against the storage of any hazardous waste restricted from land disposal against the United States' storage of chemical weapons at the Depot."

 

    Access the complete opinion and dissent (click here). [#Haz, #CA10]

 

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Impact Energy Resources, LLC v. Salazar

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 11-4043 & 11-4057. Appealed from the United States District Court for the District of Utah. Appellants in this case are companies that submitted high bids on certain oil and gas leases at a Bureau of Land Management (BLM) auction (collectively, the Energy Companies). After the auction but before the leases were issued, newly appointed Secretary of the Interior Ken Salazar decided not to lease the parcels at issue. Salazar announced his decision at a February 4, 2009, press conference and memorialized his determination in a February 6 memorandum to the BLM's Utah State Director. On February 12, 2009, a subordinate BLM official mailed letters to the high bidders indicating that the leases would not be issued.

 

    Exactly ninety days later (following February 12), the Energy Companies filed suit challenging the Secretary's authority to withdraw the leases. The district court dismissed their suit as time-barred under the Mineral Leasing Act (MLA), which provides that "[n]o action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced or taken within ninety days after the final decision of the Secretary relating to such matter." 30 U.S.C. § 226-2.

 

    The Appeals Court explains that, "A majority of the panel agrees with the district court that the Secretary's final decision in this matter occurred no later than February 6, and thus, the suit is time-barred. As explained in their separate concurrences, however, the panel majority would employ somewhat differing analyses in reaching this result. Judge Lucero would hold that under the plain text of the MLA, the Secretary's decision was final on February 6 regardless of whether plaintiffs' claims under the Administrative Procedure Act (APA) had accrued at that time. Judge Seymour would hold that the word "final" bears the same meaning in the phrase 'final decision of the Secretary,' 30 U.S.C. § 226-2, as it does in the phrase 'final agency action' under the APA, 5 U.S.C. § 704, and that final agency action occurred no later than February 6. Judge Tymkovich agrees with Judge Seymour's conclusion that final agency action is necessary, but disagrees with the majority's conclusion that the suit is time-barred as explained in his dissent.

 

    "The panel majority also agrees with the district court that the Energy Companies are not entitled to equitable tolling in this matter. The BLM notified the high bidders just six days after the Secretary made his decision. And the government notified the Energy Companies of its position that February 6 was the operative date during agency proceedings. Although the Energy Companies had time to prepare their claims before the limitations period expired, they gambled that a court would accept their proffered limitations theory. Equitable tolling is not required under these circumstances. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm."

 

    In a strong dissent, Justice Tymkovich said, "The majority's decision today is a recipe for uncertainty, unfairness, and inefficiency in the administrative process. As one of our circuits facing a similar issue recently said: 'If we considered agency statements lacking clear indicia of finality to nonetheless be final agency action, subjects of agency regulation would be forced to file repeated precautionary petitions for review. Such petitions would waste the time and resources of the Court and of the parties, and would promote unfairness by allowing an agency to retroactively determine whether a particular statement was final or not. Considerations such as these have long been an integral part of finality determinations.' Am. Airlines, Inc. v. Transp. Sec. Admin., 665 F.3d 170, 174 (D.C. Cir. 2011).

 

    "Such problems are amplified, of course, when the document at issue is an undisclosed memorandum. To the list above we may add intrusive disclosure requests of internal agency documents. Surely Congress did not intend the result the per curiam opinion reaches today, and the text of the MLA does not command such an outcome -- a result at odds with well established principles of statutory construction, applicable case law, and an orderly process of judicial review of administrative action."

 

    Access the complete opinion and dissent (click here). [#Energy/OilGas, #CA10]

 

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Scott Timber Co. v. United States

Sep 5: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5092. Appealed from the United States Court of Federal Claims. The United States appeals from a judgment of the Court of Federal Claims (Claims Court) finding that the government breached three timber-harvesting contracts and awarding damages to Scott Timber Company (Scott). See Scott Timber Co. v. United States (Damages Decision), 97 Fed. Cl. 685 (2011); Scott Timber Co. v. United States (Liability Decision), 86 Fed. Cl. 102 (2009). The Appeals Court reversed the Claims Court.

 

    The Appeals Court explains that this is another in a series of cases involving allegations that the government breached contracts for the sale of timber on public lands. Timber-harvesting contracts, such as those at issue here, allow the contract holder to cut and remove a specified volume of timber from designated Federally-owned lands during a designated period of time. Because of the risk posed by potential environmental litigation, and by litigation against the government for the resulting delays, the government included provisions in the timber-harvesting contracts involved here authorizing the Forest Service to suspend the awarded contracts in order to comply, for example, with a court order enjoining harvesting on the involved lands.

 

    In this case, at the time of the award, Oregon Natural Resources Council Action (Oregon Natural) had brought suit against the government claiming that the Forest Service had violated the Northwest Forest Plan adopted in 1994, and hence had violated applicable statutes, by authorizing timber sales without first conducting surveys for certain species of wildlife. Oregon Natural Res. Council Action v. U.S. Forest Serv., 59 F. Supp. 2d 1085, 1087 (W.D. Wash. 1999).

 

    The Claims Court found the government liable for breaching each of the contracts and first concluded that the Forest Service's award of the three contracts without informing Scott of the risks to those contracts posed by the litigation; "unreasonably delayed" completing the surveys of timber areas which "unduly lengthened" the contract suspension periods"; and further delayed because of another lawsuit in which no injunction was ever issued.

 

    The majority Appeals Court found that, "Scott has not established that any delay in performance of the Pigout, Jigsaw, and Whitebird contracts resulted in lost profits. . . [and] "Scott is thus precluded from recovering damages on a theory of material breach, including the $129,599 in claimed re-placement costs. For these reasons, we reverse the judgment of the Claims Court."

 

    The dissenting Justice indicates, "The court errs when it finds Scott I and Precision Pine reconcilable and Scott I inapplicable in this case. See Majority Op. at 15-18. These cases are irreconcilable, and therefore this court should take the case en banc to re-solve the conflict the two cases present or the panel should hold that Scott I is the earlier, and therefore precedential, decision over Precision Pine. [Interested parties should review the case for details regarding the referenced cases.]

 

    Access the complete opinion and dissent (click here).  [#Land, #CAFed]

 

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Los Alamos Study Group v. Department of Energy

Aug 27: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-2141. Appealed from the U.S. District Court from the District of New Mexico. On August 16, 2010, Plaintiff Los Alamos Study Group filed a complaint for declaratory and injunctive relief under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Defendants were the National Nuclear Security Administration (NNSA), the United States Department of Energy (DOE), NNSA's administrator, and the DOE secretary.

 

    The complaint alleged that the design proposed for construction of a Chemistry and Metallurgy Research Replacement Nuclear Facility (the Nuclear Facility) at the Los Alamos National Laboratory (the Laboratory) had changed so much since the original environmental analysis in 2003 that a new analysis was required and that all work on the facility should be halted until the conclusion of such analysis.

 

    The district court dismissed the claims on two grounds: (1) that they were prudentially moot because Defendants began an environmental analysis after the complaint was filed and committed to refraining from all construction on the Nuclear Facility until the analysis was complete; and (2) that the case was not yet ripe because there had been no final agency action. The Appeals Court ruled, "We agree with the district court on the ripeness issue. We therefore need not address prudential mootness."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CA10]

 

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Reino De España v. American Bureau Of Shipping

Aug 29: In the U.S. Court of Appeals, Second Circuit, Case No. 10-3518. Appealed from the United States District Court for the Southern District of New York. The case involves a November 2002, spill from the oil tanker Prestige which sank off the northwestern coast of Spain, releasing large quantities of oil into the ocean. Reino de España (Spain or Plaintiff) alleges that the oil, on washing up on the Spanish coastline, caused serious environmental and economic damage to Spain and its citizens. Spain, in reaction to the alleged effects of this marine casualty, brought suit against American Bureau of Shipping (ABS) and its subsidiaries (collectively, Defendants). ABS is a classification society -- an organization that, as relevant to the present appeal, is contracted by ship owners regularly to survey their vessels for compliance with ABS's requirements on structural soundness.

 

    The district court ruled that Defendants were entitled to summary judgment because, in the circumstances presented, ABS and its subsidiaries, did not owe Reino de España a duty in tort in connection with ABS's inspection of the tanker Prestige. Without reaching that issue, the Appeals Court concluded that ". . .even if such a duty were owed, Plaintiff did not introduce evidence

sufficient to create a genuine dispute of material fact as to whether Defendants recklessly breached that duty. . ." and affirmed the decision of the district court.

 

    Access the complete opinion (click here). [#Haz/OilSpill, #CA2]

 

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