Monday, January 14, 2013

U.S. v. El Dorado County

Jan 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17134. Appeal from the United States District Court for the Eastern District of California. A staff summary of the case indicates that the panel dismissed for lack of jurisdiction, due to lack of a final appealable order, an appeal from the district court's order suspending a consent decree between the Federal government and El Dorado County, pending further hearings. The panel held that if a district court order deals with a consent decree that has injunctive effects, an appeal from it should be analyzed under the requirements set out in Carson v. Am. Brands, Inc., 450 U.S. 79 (1981). The panel held that the Federal government failed to satisfy the Carson factors, and concluded that the court lacked jurisdiction at this time to review the district court's order.
    The Appeals Court said, "The United States of America (government) entered into a consent decree with El Dorado County (County) concerning the clean up of an abandoned landfill located near Lake Tahoe in California. The County shortly thereafter moved to modify the decree, and the district court suspended the decree pending further hearings. The government appealed. The County later moved to dismiss for lack of jurisdiction, arguing that the order was not appealable because it is nonfinal. We have jurisdiction to determine our own jurisdiction, Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004), and we dismiss the appeal."
    Further, the Appeals Court ruled, "The government has not shown that it will suffer serious, perhaps irreparable harm if we do not review the district court's order now. The government argues that if the order freeing the County from its obligations is allowed to stand even temporarily, further damage to the landfill site is a serious possibility. However, at worst, the government must pay for the clean up activities itself and then be reimbursed. This kind of harm does not qualify. . .
    "Nor has the government shown that the order can only be challenged by immediate appeal. Once the district court has held its evidentiary hearing and enters the final judgment, the government can appeal the same legal issues. The government argues that the order can only be appealed now because the project will fail if the County is not required to continue clean up. This is merely a repetition of the government's harm arguments, and fails for the same reason. As stated before, at worst, the government must pay for the clean up itself and then be reimbursed. That situation has no impact on the reviewability of the underlying legal issue. Because the government has failed to satisfy the Carson factors, we do not have jurisdiction at this time. The motion to dismiss is therefore granted."
    Access the complete opinion (click here). [#Solid, #Remed, #CA9]
For a short time you can access the complete daily eNewsUSA issue (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals

No comments: