Jun 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2189. The appeal arises from the Interior Board of Land Appeals’ (IBLA or Board) determination that the West Virginia Highlands Conservancy (WVHC) was not eligible for attorneys’ fees after prosecuting an administrative appeal to the IBLA. In the administrative appeal WVHC had challenged a decision of the Office of Surface Mining Reclamation and Enforcement (OSM) that rejected a citizen complaint filed by WVHC with the agency.
The appeal resulted in an IBLA remand order directing OSM to perform certain regulatory duties, including an investigation into whether it was required to reassert regulatory jurisdiction over a particular surface mining reclamation site pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
After the IBLA denied WVHC’s petition for attorneys’ fees in connection with the appeal, WVHC sought review of the denial in district court. The district court granted summary judgment to WVHC, holding that WVHC was eligible for an award of fees under SMCRA’s fee-shifting provision. The Appeals Court affirmed the district court ruling.
Access the complete opinion (click here).
Thursday, June 11, 2009
Wednesday, June 10, 2009
State of Missouri v. St. Louis Sewer District
Jun 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-3399. The United States and the State of Missouri filed this enforcement action against the Metropolitan St. Louis Sewer District (District) under the Clean Water Act (Act). They sought Federal civil penalties and injunctive relief to limit discharges of untreated wastewater and sewage by the District. The District raised several affirmative defenses claiming financial inability to comply with the Act's requirements and filed two counterclaims. The State then moved to strike the District's affirmative defenses and to dismiss its counterclaims, arguing that they were barred by sovereign immunity and the Eleventh Amendment.
The district court denied the motion and Missouri appeals, arguing that it did not waive its sovereign immunity by filing this action since the Act requires its participation. The Appeals Court affirmed the district court decision. The Appeals Court said, "Though Missouri did not add any state law claims to those brought by the United States, the fact is that it affirmatively joined in asserting the federal claims. As a result the State will be entitled to participate in negotiating and enforcing any judgment or consent decree entered against the District. Were the State to assert the defense of sovereign immunity against the District's counterclaims while exercising the rights of a plaintiff, we would be condoning the selective invocation of immunity that the Supreme Court recognized as unfair in Lapides."
Further, the Appeals Court said, "Section 309(e) undoubtedly compels a state to become a party in federal court, but it does not compel the state to take any action that would waive its sovereign immunity. A state required to join a federal enforcement action under § 309(e) can preserve its potential sovereign immunity defense by aligning as a defendant and taking no other actions inconsistent with the assertion of sovereign immunity."
Access the complete opinion (click here).
The district court denied the motion and Missouri appeals, arguing that it did not waive its sovereign immunity by filing this action since the Act requires its participation. The Appeals Court affirmed the district court decision. The Appeals Court said, "Though Missouri did not add any state law claims to those brought by the United States, the fact is that it affirmatively joined in asserting the federal claims. As a result the State will be entitled to participate in negotiating and enforcing any judgment or consent decree entered against the District. Were the State to assert the defense of sovereign immunity against the District's counterclaims while exercising the rights of a plaintiff, we would be condoning the selective invocation of immunity that the Supreme Court recognized as unfair in Lapides."
Further, the Appeals Court said, "Section 309(e) undoubtedly compels a state to become a party in federal court, but it does not compel the state to take any action that would waive its sovereign immunity. A state required to join a federal enforcement action under § 309(e) can preserve its potential sovereign immunity defense by aligning as a defendant and taking no other actions inconsistent with the assertion of sovereign immunity."
Access the complete opinion (click here).
Citizens for Better Forestry v. USDA
Jun 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16077. The United States Department of Agriculture (USDA), which includes the Forest Service, appeals the district court’s award of attorneys’ fees to Citizens for Better Forestry and eleven other environmental groups (collectively, Citizens) under the Equal Access to Justice Act (EAJA). In the underlying action, Citizens sought declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule.
In a prior action, the Ninth Circuit reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. However, before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. The Appeals Court ruled that because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.
Access the complete opinion (click here).
In a prior action, the Ninth Circuit reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. However, before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. The Appeals Court ruled that because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.
Access the complete opinion (click here).
Monday, June 8, 2009
Friends of the Everglades v. So. Fla. Water Mgmt.
Jun 4: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13829. According to the Appeals Court, the appeal turns on whether the transfer of a pollutant from one navigable body of water to another is a “discharge of a pollutant” within the meaning of the Clean Water Act (CWA). If it is, a National Pollution Discharge Elimination System (NPDES) permit is required. CWA defines “discharge of a pollutant,” but the meaning of that definition is itself disputed. During the course of the litigation, U.S. EPA adopted a regulation addressing the specific matter. The Appeals Court said, "The issue we face, after we dispose of a preliminary Eleventh Amendment question, is whether we owe that EPA regulation deference under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).
In its decision, the Appeals Court reasoned, "Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting 'any addition of any marbles to buckets by any person.' A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover 'add[ed] any marbles to buckets'? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the
Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.
"Like the marbles rule, the Clean Water Act’s language about 'any addition of any pollutant to navigable waters from any point source,' 33 U.S.C. § 3362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA rescinds or Congress overrides the regulation, we must give effect to it." The Appeals Court ruled, "In the defendants’ appeal, we reverse the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act. We dismiss as moot the plaintiffs’ cross-appeal from the dismissal of the Water District on Eleventh Amendment grounds."
The public interest law firm, Earthjustice issued a release on the opinion saying, "This is the exact opposite interpretation than that reached by the Second Circuit Court of Appeal only two years ago. Further consideration by the whole appeals court panel seems appropriate." Earthjustice said it plans to file for an en banc rehearing, which would be heard by a full panel of judges.
Access the complete opinion (click here).
In its decision, the Appeals Court reasoned, "Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting 'any addition of any marbles to buckets by any person.' A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover 'add[ed] any marbles to buckets'? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the
Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.
"Like the marbles rule, the Clean Water Act’s language about 'any addition of any pollutant to navigable waters from any point source,' 33 U.S.C. § 3362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA rescinds or Congress overrides the regulation, we must give effect to it." The Appeals Court ruled, "In the defendants’ appeal, we reverse the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act. We dismiss as moot the plaintiffs’ cross-appeal from the dismissal of the Water District on Eleventh Amendment grounds."
The public interest law firm, Earthjustice issued a release on the opinion saying, "This is the exact opposite interpretation than that reached by the Second Circuit Court of Appeal only two years ago. Further consideration by the whole appeals court panel seems appropriate." Earthjustice said it plans to file for an en banc rehearing, which would be heard by a full panel of judges.
Access the complete opinion (click here).
Montanans For Multiple Use v. Cathy Barbouletos
Jun 5: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-5131. In this case, several Montana organizations and citizens are concerned about the U.S. Forest Service’s management of the Federally-owned Flathead National Forest in northwest Montana. They want more of the forest to be made available for timbering and recreational activities. They filed a lawsuit against the Forest Service. A variety of environmental groups intervened against plaintiffs on the side of the Forest Service. Agreeing with the Forest Service and the environmental groups, the District Court dismissed plaintiffs’ complaint.
The Appeals Court affirmed the District Court decision because they said, ". . .plaintiffs cannot establish that the Forest Service has violated any federal law or otherwise taken action that is arbitrary and capricious under the Administrative Procedure Act. On the contrary, it is clear that plaintiffs’ grievance lies with legally permissible policy decisions made by Congress and the Forest Service. Plaintiffs’ plea for a new approach to management of the Flathead Forest is therefore best directed to the Legislative and Executive Branches."
Access the complete opinion (click here).
The Appeals Court affirmed the District Court decision because they said, ". . .plaintiffs cannot establish that the Forest Service has violated any federal law or otherwise taken action that is arbitrary and capricious under the Administrative Procedure Act. On the contrary, it is clear that plaintiffs’ grievance lies with legally permissible policy decisions made by Congress and the Forest Service. Plaintiffs’ plea for a new approach to management of the Flathead Forest is therefore best directed to the Legislative and Executive Branches."
Access the complete opinion (click here).
Monday, June 1, 2009
Friedland v. TIC-The Industrial Co.
May 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1042. Plaintiff-appellant Robert M. Friedland filed the contribution action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113(f), against defendants appellees, The Industrial Company (TIC) and GeoSyntec Consultants Inc. (GeoSyntec). The district court entered summary judgment in favor of the defendants-appellees based on its determination that Friedland already recouped all of his recoverable costs from other entities and therefore has no damages to recover in this case. Friedland appealed the decision and the Appeals Court affirmed the district court decision.
The Appeals Court concluded, "The district court correctly concluded that the collateral source rule does not apply in this CERCLA contribution action. The court also properly determined that the alleged injury and damages in this lawsuit are the same as those addressed in the USF&G and Travelers settlements. We therefore affirm the entry of summary judgment against Mr. Friedland. We grant the appellees’ motion to file their response brief under seal and Mr. Friedland’s motion to file his reply brief under seal."
Access the complete opinion (click here).
The Appeals Court concluded, "The district court correctly concluded that the collateral source rule does not apply in this CERCLA contribution action. The court also properly determined that the alleged injury and damages in this lawsuit are the same as those addressed in the USF&G and Travelers settlements. We therefore affirm the entry of summary judgment against Mr. Friedland. We grant the appellees’ motion to file their response brief under seal and Mr. Friedland’s motion to file his reply brief under seal."
Access the complete opinion (click here).
Tuesday, May 19, 2009
Tucson Herpetological Society v. Salazar (Interior Dept.)
May 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16641. Conservation organizations and individual biologists (collectively Plaintiffs) contend that the Secretary of the Interior’s (the Secretary) decision to withdraw a rule proposing that the flat-tailed horned lizard (the lizard) be listed as a threatened species is contrary to the requirements of the Endangered Species Act (ESA or the Act), and the Administrative Procedure Act (APA). They appeal from the district court’s order granting summary judgment in favor of the Secretary. In a partially split decision the majority Appeals Court reversed in part and remanded.
Plaintiffs objected to the Secretary’s assertion that a Conservation Agreement and management strategy have diminished threats to the lizard’s remaining habitat on public lands, and emphasize the management strategy’s slow and still incomplete implementation. The Appeals Court said the Secretary acknowledges that the Conservation Agreement has not yet been fully implemented, but points to specific conservation benefits that the agreement has achieved since it came into being in 1997. Moreover, the Appeals Court said, the 2003 withdrawal states that its assessment of threats to the species’ current range is not “dependent on full implementation” of the Conservation Agreement’s management strategy. The Appeals Court concluded that "the limited benefits that the 2003 withdrawal points to are supported by the record, and the Secretary did not err in taking the Conservation Agreement into account."
Additionally, Plaintiffs argue that OHV (off-highway vehicle) use in the lizard’s current range presents a much greater threat to the species than the Secretary acknowledges. The majority said, "Plaintiffs’ argument, however, relies on inferences from indeterminate scientific evidence. . . Both Plaintiffs and the Secretary point to scientific studies supporting their respective views on the effects of OHVs, but the merits of the conflicting studies is not a proper subject for this court to resolve." The court relied on the precedent saying "We must defer to the agency’s interpretation of complex scientific data."
Finally, Plaintiffs challenge the Secretary’s treatment of scattered threats posed by energy and mineral development projects, increased Border Patrol activity, and the possible construction of large-scale infrastructure projects in the lizard’s current range. The majority said, "Plaintiffs’ arguments follow the same course as their attack on the agency’s analysis of OHV use. In short, they have not presented conclusive evidence to rebut the Secretary’s determination that such threats, either alone or in concert, are not likely to cause the 'destruction, modification, or curtailment of [the species’] habitat or range.'"
Accordingly, the Appeals Court ruled, ". . .we reverse and remand the judgment of the district court with instructions that the matter be further remanded to the Secretary so that the Secretary can again consider whether to withdraw the proposed listing of
the lizard."
Access the complete opinion (click here).
Plaintiffs objected to the Secretary’s assertion that a Conservation Agreement and management strategy have diminished threats to the lizard’s remaining habitat on public lands, and emphasize the management strategy’s slow and still incomplete implementation. The Appeals Court said the Secretary acknowledges that the Conservation Agreement has not yet been fully implemented, but points to specific conservation benefits that the agreement has achieved since it came into being in 1997. Moreover, the Appeals Court said, the 2003 withdrawal states that its assessment of threats to the species’ current range is not “dependent on full implementation” of the Conservation Agreement’s management strategy. The Appeals Court concluded that "the limited benefits that the 2003 withdrawal points to are supported by the record, and the Secretary did not err in taking the Conservation Agreement into account."
Additionally, Plaintiffs argue that OHV (off-highway vehicle) use in the lizard’s current range presents a much greater threat to the species than the Secretary acknowledges. The majority said, "Plaintiffs’ argument, however, relies on inferences from indeterminate scientific evidence. . . Both Plaintiffs and the Secretary point to scientific studies supporting their respective views on the effects of OHVs, but the merits of the conflicting studies is not a proper subject for this court to resolve." The court relied on the precedent saying "We must defer to the agency’s interpretation of complex scientific data."
Finally, Plaintiffs challenge the Secretary’s treatment of scattered threats posed by energy and mineral development projects, increased Border Patrol activity, and the possible construction of large-scale infrastructure projects in the lizard’s current range. The majority said, "Plaintiffs’ arguments follow the same course as their attack on the agency’s analysis of OHV use. In short, they have not presented conclusive evidence to rebut the Secretary’s determination that such threats, either alone or in concert, are not likely to cause the 'destruction, modification, or curtailment of [the species’] habitat or range.'"
Accordingly, the Appeals Court ruled, ". . .we reverse and remand the judgment of the district court with instructions that the matter be further remanded to the Secretary so that the Secretary can again consider whether to withdraw the proposed listing of
the lizard."
Access the complete opinion (click here).
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