Abraham v. St. Croix Renaissance Group

May 17: In the U.S. Court of Appeals, Third Circuit, Case No. 13-1725. Appealed from the District Court of the Virgin Islands. The St. Croix Renaissance Group, L.L.L.P. (SCRG) sought leave under the Class Action Fairness Act (CAFA), to appeal an order of the District Court of the Virgin Islands remanding a civil action to the Superior Court of the Virgin Islands. The Appeals Court granted SCRG's request saying it concluded, "that the civil action here is not a removable 'mass action' under CAFA. . ." The Appeals Court affirmed the order of the District Court.  

 

    SCRG purchased a former alumina refinery on the south shore of St. Croix in 2002. The plaintiffs alleged that "[f]or about thirty years, an alumina refinery located near thousands of homes on the south shore of the island of St. Croix was owned and/or operated by a number of entities." According to the complaint, the "facility refined a red ore called bauxite into alumina, creating enormous mounds of the by-product, bauxite residue, red mud, or red dust." In addition to these hazardous materials, friable asbestos was present. All of the substances described were dispersed by wind and disseminated as a result of erosion.

 

    The plaintiffs averred that the improper maintenance of the facility, inadequate storage and containment of the various hazardous substances, as well as failure to remediate the premises, caused them to sustain physical injuries, mental anguish, pain and suffering, medical expenses, damage to their property and possessions, loss of income and the capacity to earn income, and loss of the enjoyment of life. On December 7, 2012, the District Court granted the plaintiffs' motion to remand this action to the Superior Court of the Virgin Islands. The Appeals Court noted that the District Court considered several district court decisions that addressed whether an action qualified as a mass action.

 

    The Appeals Court said, "The issue in this case is one of statutory interpretation. We must determine the meaning of the phrase 'an event or occurrence' as it appears in the mass-action exclusion. The Appeals Court indicates, "In short, treating a continuing set of circumstances collectively as an 'event or occurrence' for purposes of the mass-action exclusion is consistent with the ordinary usage of these words, which do not necessarily have a temporal limitation. Giving the words 'event' or 'occurrence' their ordinary meaning is not at odds with the purpose of the statutory scheme of CAFA. . .

 

    "We conclude that the District Court did not err in its interpretation of the "event or occurrence" exclusion in § 1332(d)(11)(B)(ii)(I). Our broad reading of the words "event" and "occurrence" is consistent with their ordinary usage. Further, such a reading does not thwart Congress's intent, which recognized that some aggregate actions are inherently local in nature and better suited to adjudication by a State court. Accordingly, there is no reason to consider the legislative history of the CAFA to interpret the phrase 'event or occurrence' in the mass-action exclusion. . .

    "In light of our determination that the words "event" or "occurrence" in § 1332(d)(11)(B)(ii)(I) should be given their ordinary meaning, we turn to whether the plaintiffs' complaint falls within this exclusion for mass actions. . . We conclude that the complaint sufficiently alleges that all of the plaintiffs' claims arise from "an event or occurrence" in the Virgin Islands where the action was filed and that allegedly resulted in injuries there. . . We agree with the District Court that the complaint was not a removable mass action because "all of the claims in the action arose from an event or occurrence" that happened in the Virgin Islands and that resulted in injuries in the Virgin Islands. Accordingly, the District Court appropriately remanded the plaintiffs' action to the Superior Court of the Virgin Islands. . ."

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

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Center For Food Safety v. Vilsack (USDA)

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15052. Appealed from the United States District Court for the Northern District of California. The panel affirmed the district court's summary judgment in favor of Federal officials and intervenor-defendants, comprised of corporate seed manufacturers and industry trade groups, in an action brought by environmental groups and farmer organizations challenging the Record of Decision issued by the United States Department of Agriculture's (USDA's) Animal Plant and Health Inspection Service (APHIS) unconditionally deregulating Roundup Ready Alfalfa, a plant genetically engineered or modified by the Monsanto Company.

 

    The Appeals Court explains that the appeal represents another chapter in USDA's regulation of Roundup Ready Alfalfa (RRA). RRA is a plant genetically "engineered" or "modified" by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry.

 

    Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the Plant Protection Act (PPA) and the Administrative Procedure Act (APA) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the Endangered Species Act (ESA) when it failed to consult with the Fish and Wildlife Service (FWS) about RRA's effects on endangered and threatened species; and third, APHIS also violated the National Environmental Policy Act (NEPA) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.

 

    After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012). It held that RRA is not a "plant pest" within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests.

 

    The Appeals Court affirmed saying, "because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a 'plant pest' under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). The district court thus properly entered summary judgment in favor of the defendants."

 

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

 

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