Neal Parker v. Schmiede Machine & Tool Corporation

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 In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in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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David L. Lewis v. U.S. Department of Labor

Feb 24: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12114. In this unpublished opinion, Dr. David Lewis petitioned the court for review of the final order of the U.S. Department of Labor Administrative Review Board (ARB) denying his whistleblower complaints against his employer, the U.S. EPA, brought pursuant to the employee protection provisions of the Clean Air Act (CAA); the Safe Drinking Water Act (SDWA); the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Toxic Substances Control Act (TSCA); the Federal Water Pollution Prevention and Control Act (FWPPCA); and the Solid Waste Disposal Act (SWDA).

 

    The case involves a dispute between two EPA employees regarding EPA's Rule 503 [See 40 C.F.R. § 503.1 (2009)] relating to the land application of biosolids. Lewis became concerned that heavy metals in sludge may be adverse to the public health and that the effects of pathogens in the sludge were not adequately investigated during the Rule 503 peer review process. The Appeals Court affirmed the ARB decision denying the complaints.

 

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Daisy Abdur-Rahman v. John Walker

May 11: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12345. The appeal presents the question whether reports by compliance inspectors of a water and sewer department that “owe[ their] existence” to investigative duties assigned to the inspectors are protected by the First Amendment from managerial discipline. The Appeals Court cites Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006).

Daisy Abdur-Rahman and Ryan Petty, inspectors formerly employed by the Department of Public Works of DeKalb County, Georgia, appeal a judgment on the pleadings against their complaint and in favor of their former supervisors, John Walker and Chester Gudewicz Jr. The inspectors complained that their employment was terminated in retaliation for reporting to their supervisors about the compliance of the county with the Clean Water Act, in violation of rights secured by the whistleblower provision of the Act, 33 U.S.C. §1367(a), and the First Amendment, 42 U.S.C. § 1983. The inspectors’ reports to their supervisors were based on investigations of sewer overflows the inspectors performed as part of their assigned duties.

The district court concluded that section 1983 does not provide a private right of action for violations of the Clean Water Act and the job-related reports of the inspectors were not citizen speech protected by the First Amendment. In a split, 2-1 opinion, the Appeals Court affirmed the district court decision.

The majority explained further, "At every turn, the argument of the inspectors is incompatible with the precedents of our Court and the Supreme Court that limit the claims of government employees under the First Amendment to citizen speech on matters of public concern. To remain faithful to these precedents, we must review the whole record, and we cannot focus exclusively on whether the inspectors were required to speak. We cannot separate the statements the inspectors made from the official responsibilities to which those expressions were related. We affirm the judgment that the inspectors’ complaint under the First Amendment fails as a matter of law."

The dissent indicated, "I dissent, believing that the majority has misapplied First Amendment principles to the facts of this case. . . the sacrifice of First Amendment rights by public employees in the interest of managerial efficiency is the exception, not the rule. To that end, the Supreme Court has ensured the broadest possible First Amendment protection for public employees by, among other things, holding specifically that the government’s managerial interests do not necessarily outweigh the rights of the employee to speak on a matter of public concern simply because the speech relates to his or her employment, nor, for that matter, because he speaks to his co-workers or supervisors rather than to the public. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 420-21 (2006)."

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Miccosukee Tribe of Indians of Florida v. USA

May 5: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10799. The case involves what the Appeals Court says is one of the Corps of Engineers "unplanned environmental consequences” of its efforts to control the “river of grass” or the Everglades, of South Florida that flowed south from Lake Okeechobee to the Florida Bay. More specifically, the case involves the Cape Sable seaside sparrow (the sparrow) that lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels.

One of the sparrows subpopulations has decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps’ method of releasing water into the Everglades has been blamed for that decline. Also, at risk is the Everglade Snail Kite, a type of hawk, that was also listed as endangered in 1967 and received critical habitat designation in 1977. During a period of regional drought, Florida’s total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The problem, of managing the two habitats is that the kites prefer steady and moderate to low water levels above one of the control gates (S-12), while the sparrows prefer low water below the S-12 gates.

The Corps and the Fish & Wildlife Service, consult with each other on habitat management and when a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a “biological opinion” determining whether the action would jeopardize the species. Following the development of Corps plans and biological opinions the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging the Interim Plan.

The Court of Appeals ruled that, "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion."

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Moshe Leib v. Hillsborough County Public Transportation

Feb 19: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-14271. Moshe Leib (Leib) appealed from the district court’s dismissal of his suit, brought under 42 U.S.C. § 1983, against the Hillsborough County Public Transportation Commission (HCPTC, or the Commission) for denying him permission to operate a Toyota Prius as one of the limousines offered by his transportation service. Leib argues that the HCPTC violated his due process and equal protection rights, and that the Commission’s rules are unconstitutionally vague and impermissibly burden interstate commerce. The district court dismissed Leib’s complaint under Rule 12(b)(6) and the Appeals Court affirmed the decision.

Leib owns and operates TB Limo.com, a limousine service in the Tampa Bay area. Seeking to offer customers an "environmentally-friendly” alternative to traditional limousines, Leib bought a Prius. In order to operate the Prius as a limousine within Hillsborough County, Leib had to obtain a permit from the HCPTC, the administrative agency charged by the Florida State Legislature with regulating the operation of public vehicles on Hillsborough County’s public highways. The Commission denied Leib’s request on the ground that the Prius did not qualify as a “luxury” vehicle, and thus did not meet the definition of “limousine” in HCPTC Taxi Rule 1.15. A subsequent waiver request was also denied by HCPTC.

The Appeals Court said, ". . .Leib’s argument rests on a factual mistake: he argues that 'environmentally-friendly passengers that desire to utilize ecologically superior transportation are left with no alternative options whatsoever as a result of the HCPTC’s complete prohibition of eco-friendly vehicles for use as limousines.' This is simply false: an environmentally-friendly vehicle may qualify as a limousine so long as it meets Rule 1.15’s luxury and other requirements. Accordingly, Leib’s interstate commerce claim was properly dismissed."

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Black Warrior Riverkeeper v. Cherokee Mining

Nov 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10810. The Appeals Court explained that Black Warrior Riverkeeper (Black Warrior) is a non-profit membership organization that supports enforcement of environmental laws for the preservation, protection, and defense of the Black Warrior River located in Alabama. Cherokee Mining, LLC (Cherokee) is the owner and operator of two surface coal mines located in northern Alabama. Black Warrior sued Cherokee alleging that it had violated the Federal Water Pollution Control Act (the Clean Water Act) and similar provisions of Alabama law.

Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.

The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."

The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."

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Sierra Club v. Stephen L. Johnson

Sep 2: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-11537. As explained by the Appeals Court, this Clean Air Act (CAA) case involves a dispute over what triggers the U.S. EPA's statutory duty to object to the issuance of a Title V operating permit under 42 U.S.C. § 7661d(b)(2). The CAA requires the EPA Administrator to object to an operating permit “if [a] petitioner demonstrates to the Administrator that [a] permit is not in compliance with the requirements of [the Clean Air Act].” Id. The Sierra Club and the Coosa River Basin Initiative, the Petitioners in the case, challenge operating permits issued to the Georgia Power Company.

In mounting their challenge before the EPA Administrator, Petitioners relied exclusively on the Agency’s own violation notice and a subsequent complaint filed against Georgia Power in an unresolved civil enforcement action. The EPA Administrator refused to object. He found the Petitioners had not satisfied their burden of demonstrating the Georgia Power permits were not in compliance with the Act. Petitioners asked the Appeals Court to force the Agency to issue objections to the permits. Georgia Power Company, Oglethorpe Power Corporation, and the Georgia Environmental Protection Division intervened on behalf of EPA.

The Appeals Court said, "We deny the request because we hold the EPA Administrator’s actions fell within the bounds of his discretion: A violation notice and civil complaint are merely initial steps in an enforcement action and do not, by themselves, inevitably trigger the EPA Administrator’s duty to object under 42 U.S.C. § 7661d(b)(2)."

In summary, the Appeals Court said, ". . . we conclude the EPA has offered a reasonable interpretation of the statute that deserves deference: Title V operating permits are required to contain all applicable clean air requirements, see 42 U.S.C. § 7661c(a), and under § 7661d(b)(2) a petitioner must demonstrate to the Administrator that a permit does not contain a requirement that is applicable to that permit’s source. Here, Petitioners only offered evidence that the EPA had initiated proceedings to resolve the applicability of PSD [prevention of significant deterioration] requirements to the Bowen and Scherer plants. This evidence, without more, was insufficient to trigger the Administrator’s duty to object to the permits because the EPA had discretion to reasonably conclude the applicability of PSD limits to the Bowen and Scherer plants was still very much unresolved. Therefore the EPA Administrator did not act arbitrarily in declining to object to the Bowen and Scherer permits, which did not contain PSD-related limits or compliance schedules." While the petition was denied the Appeals Court noted that the EPA action against Georgia Power is still unresolved.

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James River Insurance v. Ground Down Engineering

Aug 20: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13207. James River Insurance Company appealed the district court’s dismissal of its claim seeking a declaratory judgment that it is not obligated to provide a legal defense to Ground Down Engineering under the insurance policy Ground Down purchased from James River. James River also appealed the denial of its summary judgment motion. James River argues that the “pollution exclusion” in the policy excuses it from the obligation to defend Ground Down and Ground Down’s engineer, Laurel Hall, in a suit filed by Priority Development for "negligently failing to discover construction debris and fuel tanks during an environmental site
assessment."

In its decision, the Appeals Court concluded that the district court erred in holding that the pollution exclusion does not apply. and vacated the district court’s dismissal and remanded the case with instructions for the district court to enter an order granting summary judgment to James River.

In its decision, the Appeals Court said, "Appellees argument fails for two reasons. First, Priority’s complaint states that the damages associated with the construction debris come from the elevated levels of methane gas caused by the debris and lists the debris under the heading 'environmental contamination.' Second, the pollution exclusion is not actually limited to irritants or contaminants. The definition for pollutants states that 'irritants or contaminants' covers 'waste' which includes 'all . . . materials to be disposed of, recycled, stored, reconditioned, or reclaimed.' Only a strained reading of this language would exclude construction debris causing elevated levels of methane gas from this definition. Finally, the first sentence of the exclusion states that 'Pollution / environmental impairment / contamination is not covered under this policy.' The construction debris described in Priority’s complaint, even without the methane gas, would be considered an environmental impairment."

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Gulf Fishermen's Association v. Carlos M. Gutierrez (Commerce Secy)

Jun 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-12903. Appellant, the Gulf Fishermen’s Association (GFA), appealed the district court’s order granting the Appellees’ (Department of Commerce, NOAA National Marine Fisheries Service) motion for summary judgment for lack of jurisdiction. The district court held that the GFA’s complaint was time-barred under the limitations provision of the Magnuson-Stevens Fishery Conservation and Management Act (the Act). On appeal, the GFA argued that its suit challenging Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) was timely under the judicial review provisions of the Act, 16 U.S.C. § 1855(f), because it was filed within thirty days after an action by the Secretary of Commerce (the Secretary).

The Appeals Court indicated that, "By its own terms, the Act permits a challenge to a regulation implementing a fishery management plan so long as it is filed within thirty days after the publication of the regulation or an action by the Secretary
under that regulation. Because the GFA filed its challenge to Amendment 18A nine days after the Federal Register published a Secretarial action implementing that regulation, we find the suit was timely and reverse the district court’s grant of summary judgment for lack of jurisdiction."

Explaining further, the Appeals Court said, "After reviewing both the text and the legislative history of § 1855(f), we hold that a petition filed within thirty days of the publication of a Secretarial action, as defined in § 1855(f)(2), may challenge both the action and the regulation under which the Secretarial action is taken. In this case, the Secretarial action to delay the effective date of the VMS [Vessel Monitoring System] requirement was an 'action' taken under Amendment 18A. Because this action was published in the Federal Register on December 6, 2006, and the GFA filed its complaint on December 15, 2006, we conclude that the complaint was timely-filed under the limitations period of 16 U.S.C. § 1855(f). The district court thus erred in granting the Appellees’ motion for summary judgment for lack of jurisdiction."

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Miami-Dade County v. EPA

Jun 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-10551, 10-574- 76, 10579, 10583. Miami-Dade County, four cities, and a regional wastewater treatment facility and the Sierra Club all petition for review a Final Rule promulgated by U.S. EPA that amended the current Federal underground injection control (UIC) requirements for Class I municipal disposal wells in Florida. The petitioners argued that the Final Rule conflicts with the plain language of the authorizing statute, that EPA’s approach to UIC regulation in South Florida is arbitrary and capricious, and that EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act (APA). The Eleventh Circuit denied the petition.

Some of the many arguments raised by the petitioners include the following. The Sierra Club said EPA impermissibly considered the utility of underground injection of waste in comparison with other disposal options, and EPA failed to address the existence of several potential threats to human health posed by pathogens, nutrients, and other contaminants. The Municipalities and County complained that the Final Rule failed to take into account differences in Florida geology and hydrology. The County also argued that the Final Rule’s imposition of a high-level disinfection requirement, as opposed to some lower level of
disinfection, is arbitrary and capricious.

The Municipalities also argued that the Final Rule is not supported by the record due to four alleged flaws in the Risk Assessment’s methodology: (1) failure to consider the concentration of contaminants already present in the aquifers, (2) failure to employ a quantitative probabilistic risk analysis methodology, (3) failure to consider the results of a then-unpublished University of Miami study of well disposal practices, and (4) faulty assumptions about contaminant plumes. The criticisms were based on a review of the Risk Assessment performed by two scholars, a geologist, and a public utilities manager.

In a 49-page decision the Appeals Court said, "We conclude that the EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the Final Rule to new Class I wells as required by the APA. We further conclude that the petitioners have failed to show that the Final Rule is inconsistent with the statutory authority granted the EPA under the SDWA or that the Final Rule is unsupported by the record, or otherwise arbitrary and capricious."

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Sierra Club v. Flowers (Army Corps)

May 9: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13297. Sierra Club brought the action against the Army Corps of Engineers (Corps) after the Corps granted Rinker Materials and other mining concerns (Miners) Clean Water Act (CWA) permits. The Miners sought to extract high-quality limestone from the “Lake Belt” area -- a stretch of 60,000 acres of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees’ motion
and found that, for numerous reasons, the Miners’ permits were due to be vacated.

The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."

A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."

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OSI, Inc. v. U.S.

May 5: In the U.S. Court of Appeals, Eleventh Circuit, case No. 07-10941. As explained by the Appeals Court, OSI, Inc. (OSI) appealed, for the second time, the grant of summary judgment in favor of the Government on OSI’s claims relating to the Air Force’s use of certain land -- including, in part, land now owned by OSI -- as a landfill during the 1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims Act (FTCA), claims of cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and a citizen suit under the Resource Conservation Recovery Act (RCRA). The district court granted summary judgment in favor of the Government on all claims and the Appeals Court agreed and affirmed that decision.

The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."

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Florida Key Deer v. Paulison

Apr 1: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 05-16374. The Federal Emergency Management Agency (FEMA) and the U.S. Fish and Wildlife Service (FWS) appealed an adverse summary judgment and grant of injunctive relief. The district court found that FEMA and the FWS failed to comply with section 7 of the Endangered Species Act, with regard to FEMA’s administration of the National Flood Insurance Program (NFIP) in the Florida Keys. FEMA and the FWS maintain that section 7(a)(2) of the Endangered Species Act does not apply to FEMA’s provision of flood insurance and that FEMA has, in any event, fully complied with section 7. The Appeals Court affirmed the decision of the district court.

The case began in 1984 when in 1984, the FWS determined that FEMA’s administration of the NFIP in the Florida Keys potentially jeopardized the existence of the Florida Key deer by effectively authorizing the development that pushed the Key deer to the brink of extinction. In 1989, however, FEMA refused the FWS’s request for formal consultation, asserting that the ESA did not apply to the NFIP. In 1990, the plaintiffs, “Wildlife Organizations,” filed suit seeking an injunction requiring FEMA to comply with section 7(a)(2) of the ESA by formally consulting with the FWS about the impact of its administration of the NFIP on the Key deer. The Wildlife Organizations adopted the FWS’s argument that the NFIP encouraged new development that threatened the meager population of 250–300 Key deer with extinction.

Subsequently, FEMA consulted with the FWS regarding the impact of the NFIP on the Key deer and nine other endangered or threatened species. In 1997, the FWS issued its opinion, which found, among other things, that the NFIP, as administered in the Florida Keys, jeopardized the continued existence of the Key deer and eight other listed species. In accordance with its regulations and the ESA, the FWS recommended “reasonable and prudent alternatives” (“1997 RPAs”) to the manner in which FEMA administered the NFIP to avoid placing the Key deer and other listed species in jeopardy. The Wildlife Organizations eventually amended their complaint and added FWS as a defendant and challenging the adequacy of the 1997 RPAs and their accompanying conservation recommendations.

On March 29, 2005, the district court granted the Wildlife Organizations’ motion for summary judgment, finding that FEMA had not satisfied its obligation under section 7(a)(1) to carry out programs to conserve species and that neither FEMA nor the FWS had satisfied their obligations under section 7(a)(2). On September 12, 2005, the district court enjoined FEMA from providing any insurance for new developments in the suitable habitat of the listed species.

FEMA and FWS challenged the district court’s grant of summary judgment and injunctive relief, arguing that: (1) section 7(a)(2) of the ESA does not apply to FEMA’s administration of the NFIP; (2) section 7(a)(2) of the ESA does not require FEMA to perform an independent analysis of the FWS’s proposed “reasonable and prudent alternatives” before adopting them; (3) section 7(a)(1) of the ESA does not require agencies to develop species- and location-specific programs for the conservation of listed species; and (4) the district court exceeded its authority by issuing an injunction that is allegedly inconsistent with the ESA and the NFIA.

In affirming the district court decision the Appeals Court addressed each of the issues and determined that section 7(a)(2) applies to FEMA’s administration of the NFIP; said that FEMA adopted the RPAs the same day that the FWS proposed them and therefore did not perform an independent analysis; does require programs for the conservation of listed species and FEMA's program is "insignificant in its impact"; and the injunction at issue here does not require FEMA to act inconsistently with the command of the NFIA to issue flood insurance in otherwise eligible communities

Wildlife Organizations included the National Wildlife Federation (NWF), Florida Wildlife Federation and Defenders of Wildlife. The groups praised the decision and issued a release stating, “This is a significant victory for the Florida Key Deer and all of America’s endangered species. The court has sent a clear message that our federal government cannot subsidize development in sensitive coastal and floodplain habitats without taking into account the needs of the endangered species that live there. FEMA’s effort to place itself outside the reach of the Endangered Species Act, our nation’s most important wildlife law, has been soundly rejected.”

Access the complete opinion (click here). Access a release from NWF (click here).

Miccosukee Tribe of Indians v. USA

Feb 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-13309. The Miccosukee Tribe of Indians (the Tribe) appeals from an order granting summary judgment in favor of the United States of America and U.S. EPA with respect to the Tribe’s claims pursuant to the Freedom of Information Act (FOIA). The Tribe contends that the district court erred by finding the EPA conducted an adequate search in response to the Tribe’s two FOIA requests (an initial request on February 18, 2004, and a supplemental request on June 3, 2004) for documents concerning the EPA’s Clean Water Act review of Florida’s amendments to the Everglades Forever Act (EFA) and the Phosphorus Rule for the Everglades Protection Area. The Tribe also challenges the district court’s determination, after an in camera review, that all withheld documents were properly designated by the EPA as privileged. After a review, the Eleventh Circuit affirmed in part and vacated in part, and remanded the case to the district court for further proceedings consistent with this opinion.

In further explanation in its 66-page decision, the Appeals Court said, ". . . there was extraordinary discovery in this case, there was extraordinary substantiation of the privileges. . . the district court’s failure to enunciate specific findings of segregability for each of the withheld documents at the least requires remand so that the district court can make clear its findings as to whether any segregable portions of the withheld documents should have been disclosed. . . we vacate the district court’s grant of summary judgment because genuine issues of material fact exist regarding the reasonableness and adequacy of the EPA search for, and disclosure of, responsive documents to the Tribe’s 2004 FOIA request. We affirm, however the district court’s sustaining of the EPA’s assertion of privileges and consequent withholding of responsive documents under FOIA Exemption 5. We remand this case to the district court for further proceedings consistent with this opinion."

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