Jul 10: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-8083. Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively GYC) sent a letter to the United States Forest Service (Forest Service”) and the United States Bureau of Land Management (BLM) requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on Federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act (NEPA).
Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.
The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."
Access the complete opinion (click here).
Monday, July 13, 2009
Friday, July 10, 2009
United States v. Gary Bailey
Jul 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-1908. According to the Appeals Court, Gary Bailey constructed a road on a parcel of wetlands in Lake of the Woods County (County), Minnesota, without obtaining a permit under Section 404 of the Clean Water Act (Act). The United States Army Corps of Engineers (Corps) ordered Bailey to restore the land to its previolation condition. Bailey refused, and the United States brought an action under Section 309(b) of the Act to enforce the restoration order and to enjoin Bailey from discharging further pollutants into the wetland.
Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment.
In what the Appeals Court called "a most comprehensive, thorough opinion (from which we have borrowed extensively)," the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976). United States v. Bailey, 516 F. Supp. 2d 998 (D.Minn. 2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F. Supp. 2d 977 (D. Minn. 2008).
Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He
also argues that the restoration order is arbitrary and capricious. The Appeals Court affirmed the district court opinion.
According to the Appeals Court summary, "The wetlands in question met the substantial nexus test announced in Justice Kennedy's concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) because they were adjacent to the Lake of the Woods in Minnesota, and the district court did not err in finding it had jurisdiction to hear the United States' complaint under Section 309(b) of the Clean Water Act; the district court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; the district court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious; restoration order was not a violation of Bailey's equal protections rights under the Fourteenth Amendment.
Access the complete opinion (click here).
Bailey counterclaimed against the United States, alleging that the Corps did not have jurisdiction over his parcel of land and that its restoration order was arbitrary and capricious. Bailey sued the County in a third-party complaint, alleging that the County should pay to restore the land. All parties moved for summary judgment.
In what the Appeals Court called "a most comprehensive, thorough opinion (from which we have borrowed extensively)," the district court granted in part the United States’s motion for summary judgment, finding that the Corps properly asserted jurisdiction under the Act and that its restoration order met the requirements of United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976). United States v. Bailey, 516 F. Supp. 2d 998 (D.Minn. 2007). The district court dismissed Bailey’s counterclaim against the United States and his third-party complaint against the County. The district court subsequently issued a final injunction, ordering Bailey to restore the wetland at his own expense to its previolation condition. United States v. Bailey, 556 F. Supp. 2d 977 (D. Minn. 2008).
Bailey appeals, contending that the district court erred in concluding that the Corps has jurisdiction over his property, in granting summary judgment in favor of the United States, and in entering an injunction to enforce the restoration order. He
also argues that the restoration order is arbitrary and capricious. The Appeals Court affirmed the district court opinion.
According to the Appeals Court summary, "The wetlands in question met the substantial nexus test announced in Justice Kennedy's concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) because they were adjacent to the Lake of the Woods in Minnesota, and the district court did not err in finding it had jurisdiction to hear the United States' complaint under Section 309(b) of the Clean Water Act; the district court did not err in admitting the Corps' expert evidence establishing the existence of wetlands as the evidence was reliable and satisfied the Daubert test; the district court's order requiring Bailey to restore the wetlands in question was not arbitrary or capricious; restoration order was not a violation of Bailey's equal protections rights under the Fourteenth Amendment.
Access the complete opinion (click here).
Thursday, July 9, 2009
Oregon Natural Desert Association v. Locke
Jul 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35851. The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) and National Marine Fisheries Services (collectively, Commerce) appeal the district court’s order granting attorney fees and costs under the Freedom of Information Act (FOIA), in favor of Oregon Natural Desert Association (ONDA). The district court issued the attorney fees order after it entered judgment in ONDA’s action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act (APA).
The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."
The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."
Access the complete opinion (click here).
The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."
The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."
Access the complete opinion (click here).
Wednesday, July 8, 2009
Catawba County NC v. U.S. EPA
Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 05-1064. The case is consolidate with 29 other cases. In these consolidated petitions, several states, counties, and industrial entities challenge the U.S. EPA's promulgation of area designations for the annual national ambient air quality standard (NAAQS) applicable to fine particulate matter (PM2.5), a category of air pollutants consisting of miniscule airborne particles known to present adverse health risks. The parties argue that EPA’s methodology for designating areas as “nonattainment” for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs the designations, and that the methodology and the individual designations it produced are arbitrary and capricious.
According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."
Access the complete opinion (click here).
According to the Appeals Court the petitioners what it "to vacate the nonattainment designations and to send EPA back to the drawing board." The Appeals Court ruled, "With one minor exception, we deny the petitions for review. Faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied -- indeed, quite often surpassed -- its basic obligation of reasoned decisionmaking. . . we deny the petitions for review in all respects save one: the designation of Rockland County [New York] is remanded to EPA."
Access the complete opinion (click here).
Tuesday, July 7, 2009
Scott Howard v. Hilda Solis
Jul 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5799. In this case Petitioner Scott Howard, a miner, sought a writ of mandamus from the court directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines. The Federal Mine Safety and Health Act of 1977 authorizes the Secretary to promulgate mandatory air quality standards for U.S. mines. The Secretary has not promulgated new standards for dust and silica since 1980. Howard argued that the present standards are too high and that the Secretary had, therefore, violated her duty under the Mine Act to promulgate “improved” standards to protect the health of miners.
The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"
Access the complete opinion (click here).
The Appeals Court said, "Because Howard must first exhaust his administrative remedies as required by the Mine Act, however, his petition must be dismissed." In its opinion, the Appeals Court said further, "If Howard petitions for a lower PEL [permissible exposure limits], the Secretary assures us, the agency would make a considered determination, capable of judicial review, as to whether to promulgate a lower PEL. This would have the benefit of creating a record that would facilitate judicial review. '[E]ven where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.'"
Access the complete opinion (click here).
Thursday, July 2, 2009
Alaska Wilderness v. Kempthorne, Et. Al.
Jun 30: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 07-71989 and 07-72183. Petitioners in this case challenge the Minerals Management Service’s (MMS) approval of Respondent-Intervenor Shell Offshore Inc.’s (Shell) 2007-2009 Beaufort Sea Plan of Exploration (EP). On May 5, 2009, however, Shell withdrew its EP, and the MMS subsequently rescinded its prior approval of that EP. The MMS characterized the EP as “null and void” and declared that it “will not consider nor approve any exploratory drilling activity under this EP.”
The Appeals Court said, "The MMS’s rescission of its approval of the EP, which was the agency action at issue in this appeal, renders Petitioners’ challenge moot. Accordingly, Shell’s unopposed 'Motion to Dismiss Appeal as Moot' is granted. This appeal is dismissed as moot. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court."
Access the court order (click here).
The Appeals Court said, "The MMS’s rescission of its approval of the EP, which was the agency action at issue in this appeal, renders Petitioners’ challenge moot. Accordingly, Shell’s unopposed 'Motion to Dismiss Appeal as Moot' is granted. This appeal is dismissed as moot. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court."
Access the court order (click here).
Geerston Seed Farms v. Monsanto Co.
Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. This ruling affirms a major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto. The original decision was issued on September 2, 2008 [See WIMS 9/4/08]. In the latest action, the Ninth Circuit, has voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. The Appeals Court ruled, "The petition for panel rehearing and rehearing en banc is denied. No further petitions for rehearing will be accepted."
The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.
Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”
Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).
The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.
Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”
Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).
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