Wednesday, January 9, 2013

S. Utah Wilderness Alliance vs. Palma (BLM)

Jan 8:  In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-4094. Appeal from the United States District Court for the District of Utah. The Appeals Court explains that several environmental groups, including the national groups of Natural Resources Defense Council, The Wilderness Society, National Parks Conservation Association (collectively referred to as (SUWA) challenge decisions made by the Bureau of Land Management (BLM) and the Interior Board of Land Appeals (IBLA). At issue is the legality of thirty-nine oil and gas leases in Southern Utah, owned by Kirkwood Oil and Gas, LLC and William C. Kirkwood (collectively Kirkwood). In the 1980s, Kirkwood applied to have its oil and gas leases converted to combined hydrocarbon leases, which would allow Kirkwood to extract oil from tar sands. The Appeals Court indicates that, "Tar sands are loosely defined as any sedimentary rock impregnated with heavy, viscous crude oil that cannot be recovered by conventional techniques but rather requires an external energy source (e.g., heat) to mobilize the oil."
 
    To date, BLM has never accepted or rejected Kirkwood's applications. Between 2006 and 2008, BLM and IBLA issued several decisions declaring that the underlying oil and gas leases were "suspended" pending review of the conversion applications. SUWA alleges BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming these thirty-nine leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.
 
    The Appeals Court said in its initial summary, "We have jurisdiction under 28 U.S.C. § 1291. Although the district court misapplied the law in important respects with regard to standing, as we explain below, we ultimately hold that this action is not ripe for review. Accordingly, we affirm the district court's dismissal of the action for lack of subject matter jurisdiction."
 
    The Appeals Court concludes, "Although the issues here are predominantly legal questions, the validity of SUWA's claims will be best adjudicated once the facts have been further developed and it becomes clear what type of oil and gas development Kirkwood will ultimately be allowed to engage in, if any. We should not resolve the issues raised by SUWA 'unless and until it is determined what rights' Kirkwood has to engage in mineral extraction on the leaseholds. Tarrant Reg'l Water Dist., 656 F.3d at 1250; see also Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1237 (10th Cir. 2004) ('Fitness for judicial resolution may depend upon . . . whether consideration of the issue would benefit from a more concrete setting . . . .' (internal quotation marks omitted)). There is simply too much uncertainty as to when and what type of drilling, if any, will occur on the thirty-nine contested leases. SUWA 'will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain,' Ohio Forestry Ass'n, 523 U.S. at 734, and it will suffer no hardship from this delayed review. Accordingly, we conclude this suit is premature."
 
    Access the complete opinion (click here). [#Energy/TarSands, #CA10]
 
GET THE REST OF TODAY'S NEWS
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

Jayne v. Sherman

Jan 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35269, 11-35292, 11-35305, and 11-35322. Appeal from the United States District Court for the District of Idaho. In a summary, the court staff indicate that the panel affirmed the district court's judgment in appeal No. 11-35269, and adopted the district court's opinion as their own, Jayne v. Rey, 780 F. Supp. 2d 1099 (D. Idaho 2011). The panel dismissed as moot cross appeals Nos. 11-35292, 11-35305, and 11-35322. Plaintiffs challenged the United States Forest Service's October 16, 2008 Record of Decision adopting the modified Idaho Roadless Rule, which creates different categories of land within Idaho's 9.3 million acres of "inventoried roadless areas."
 
    The district court held that plaintiffs, who used and enjoyed numerous National Forest roadless areas in Idaho, satisfied standing and ripeness requirements to seek injunctive relief. The district court also held that the Fish and Wildlife Service did not violate the Endangered Species Act in preparing the Biological Opinion (finding that the new Idaho Roadless Rule was not likely to jeopardize the continued existence of any listed species). The district court found that the Forest Service did not violate the National Environmental Policy Act in relying on the Biological Opinion or in preparing the final environmental impact statement and Record of Decision approving the Idaho Roadless Rule.
 
    Specifically, the Appeals Court said, "After scouring both the administrative and district court records in this case, we conclude that the district court's grant of summary judgment to the defendants was warranted. The inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error. Thus, we affirm the district court's judgment in Appeal No. 11-35269. . ." In conclusion, the Appeals Court said, "The Court finds the FWS did not violate the ESA in preparing the Biological Opinion. The Court also finds that the Forest Service did not violate NEPA in relying on the Biological Opinion or in preparing the FEIS and ROD approving the Idaho Roadless Rule. For these reasons, the Court will grant the defendants' motions for summary judgment and deny plaintiffs' motion for summary judgment. The Court will issue a separate Judgment as required by Rule 58(a)"
 
    Access the complete opinion (click here). [#Land, #Wildlife, #CA9]
 
GET THE REST OF TODAY'S NEWS
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