River Runners For Wilderness v. Martin (Interior Dept.)

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15112. The case concerns the National Park Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contend that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various Federal statutes. Plaintiffs asked the District Court to set aside the decision under the Administrative Procedure Act (APA). The Appeals Court indicated that, "For reasons explained in this opinion, Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA." In a footnote, the Appeals Court praised, "The wording of Judge Campbell’s carefully crafted district court opinion with its detailed factual discussion and thorough analysis, with which we agree, has been utilized in this opinion." In its final conclusion, the Appeals Court indicates, "Plaintiffs have failed to establish that the Park Service acted arbitrarily and capriciously when it adopted the 2006 Management Plan."

On one of the primary issues of concern, i.e. noise, or "impairment of the natural soundscape;" the Appeals Court said, "Plaintiffs argue that the Park Service failed to consider 28 previous studies, but they identify no specific studies for the court to consider. Nor do Plaintiffs cite any recent studies that call into question the findings of the 1993 and 2003 studies. Defendants also note that any studies conducted in the 1970s would have concerned louder two-stroke engines rather than the quieter and cleaner four-stroke engines now used in the Corridor. Finally, the 2003 study specifically considered and summarized the earlier studies relied on by Plaintiffs. Given all of these considerations, the court cannot conclude that the Park Service acted arbitrarily and capriciously when it concluded that motorized uses do not impair the soundscape of the Park within the meaning of the Organic Act."

Access the complete opinion (click here).

United Farm Workers Of America v. U.S. EPA

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35528. According to the majority decision, "A single issue is presented by this case: Was an appeal from a decision of the Environmental Protection Agency (the EPA) filed in the right court? In the background are the merits of the litigation centered on the continued use of the pesticide Azinphos-Methyl (AZM). Our task is not to decide the merits but to ascertain the appeals process established by Congress."

While perhaps not relevant to the decision, by way of background, in the case EPA used a cost-benefit analysis to allow the continued use of a highly toxic chemical, AZM. The adverse effects of AZM on people exposed to AZM, such as agricultural workers, include headache, nausea, and dizziness. Anxiety and restlessness are also prominent. Worsening may result in twitching, weakness, tremor, incoordination, vomiting, abdominal cramps, diarrhea. In 2006, after receiving written comments from the public (notice and comment), the EPA issued an order that permitted growers to continue spraying of AZM on certain crops until 2012, after which the use of AZM would be “phased out.”

In short, according to the dissenting opinion, "without hearing any witness testimony or reviewing anything other than the submission of written comments, the EPA struck the cost-benefit analysis in favor of the AZM manufacturers and the growers who use AZM and against the agricultural workers and the environment. Because AZM’s toxic effects endanger the health of agricultural workers, the plaintiff-appellants, United Farm Workers of America (Farm Workers) opposed the continued use of AZM and challenged the EPA’s order in federal district court."

The dissenting opinion explains that, "To resolve this case we are required to interpret the words 'public hearing' under Section 16(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. Under § 16(b), whether the Farm Workers should have filed for review in federal district court or in the federal court of appeals depends on whether the EPA’s notice and comment procedure amounted to a “public hearing.” 7 U.S.C. § 136n(b). Simply put, if there was a public hearing, the Farm Workers would have been correct to file in the court of appeals. 7 U.S.C. § 136n(b). If there was not a public hearing, the Farm Workers were correct to file in district court. 7 U.S.C. § 136n(a)-(b)."

The majority ruled, "We hold that the choice of the district court by United Farm Workers of America and the other appellants (collectively Farm Workers) was mistaken and that the district court correctly dismissed their suit for lack of jurisdiction." The majority said further, "Jurisdiction in the Court of Appeals is conferred after an order is issued by the EPA 'following a public hearing.' Does the addition of 'public' alter the meaning of 'hearing'? It seems unlikely. If it did, there would be actions by the Administrator following 'a hearing' for which no review was provided. 'Hearing' and 'public hearing' should be read in tandem. Context does determine that 'the hearing' contain written submissions; otherwise, judicial review would be awkward. . . On this construction, review of the contested decision in this case should have been sought in this court. Unfortunately for the appellants it is now too late to seek it here. Petitions for review must be filed 60 days after the decision. . . The time is past."

The dissenting justice said in a lengthy dissent, "The Farm Workers sought review in the district court. They correctly determined that the court of appeals lacked jurisdiction to hear their challenge to the EPA’s order because the only evidentiary material presented to the EPA was in the form of written comments. The Farm Workers correctly concluded that this limited process did not constitute a public hearing. . . The majority would affirm the district court’s ruling that the EPA’s solicitation of written comments from the public is a 'public hearing' under § 16(b) and that the Farm Workers should have filed their challenge to the EPA’s order in the court of appeals. . . I disagree."

Access the complete opinion and dissent (click here).

Hells Canyon Preservation v. U.S. Forest Service

Jan 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35456. Plaintiffs-Appellants Hells Canyon Preservation Council and The Wilderness Society (collectively, HCPC or plaintiffs) brought suit against the United States Forest Service (Forest Service or Service), seeking a judgment declaring: (1) that the Forest Service has failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that the Forest Service’s description of the wilderness boundary is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) that the Forest Service’s failure to close the Lord Flat Trail to motorized vehicle use is an “agency action unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706(1).

Plaintiffs also seek an injunction to close the Lord Flat Trail to motorized vehicle use. The district court held that each of plaintiffs’ claims was barred by the Administrative Procedure Act’s (APA’s) six-year statute of limitations. The Ninth Circuit majority said in a split decision, "Although we rely on different reasoning, we affirm the judgment of the district court." In conclusion the majority ruled, "Over a three-year period, between 1978 and 1981, the Forest Service considered the evidence, consulted the controlling statutes, and then acted to comply with the Wilderness Act by publishing the boundary description. From that time, plaintiffs had six years in which to air their disagreement. They did not. We see no reason to entertain their attempt to revive their disagreement by labeling the Forest Service’s actions as an ongoing failure to act."

In the partial dissent, one of the Justice's ruled, "I concur in the majority’s analysis of the first two claims. Plaintiffs do not have standing to challenge the Forest Service’s failure to retain the original map of the Hells Canyon Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that the boundary description is arbitrary and capricious is barred by the six-year statute of limitations. Maj. op. Part II-B. I respectfully dissent, however, from the majority’s analysis of the third claim. Maj. op. Part II-C. . . In my view, Plaintiffs have asserted a viable claim to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1)."

Access the complete opinion and dissent (click here).

Citizens United v. Federal Election Commission

Jan 21: The U.S. Supreme Court issued an important 5-4 decision with the majority opinion written by Justice Kennedy in the case of Citizens United v. Federal Election Commission (Case No. 08-205). Justice Stevens dissented and was joined by Justices Ginsburg, Breyer, and Sotomayor. According to a summary in the Washington Post, which called the decision a "seismic jolt,"The Supreme Court ruled Thursday that corporations may spend as freely as they like to support or oppose candidates for president and Congress, easing decades-old limits on business efforts to influence federal campaigns. . . They overturned two of the court's past decisions -- including one made as recently as six years ago -- to upend federal legislation that says corporations may not use their profits to support or oppose candidates and to declare unconstitutional a large portion of the McCain-Feingold campaign finance reform act passed in 2002 [i.e. Bipartisan Campaign Reform Act of 2002 (BCRA)]."

President Obama issued a strong statement on the decision saying, "With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington -- while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less."

U.S. Senator Russ Feingold (D-WI) issued a statement on the ruling saying, "It is important to note that the decision does not affect McCain-Feingold’s soft money ban, which will continue to prevent corporate contributions to the political parties from corrupting the political process. But this decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century's worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible."

The dissenting opinion by Justice Stevens concludes, "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should out weigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

Access the complete opinion and dissent (click here; or here). Access the docket for the case (click here). Access the Washington Post article (click here). Access the statement from the President (click here). Access the statement from Senator Feingold (click here). Access complete background and briefs in the case on the SCOTUS Wiki (click here).

Fishermen's Finest Inc. v. Locke

Jan 19: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-36024. In this case, Fishermen’s Finest, Inc., North Pacific Fishing, Inc., and U.S. Fishing, LLC, (Fishermen’s) appeal from the district court’s order granting summary judgment in favor of the Secretary of the United States Department of Commerce. Fishermen’s challenges the Secretary’s issuance of a final rule adopting Amendment 85 (A85) to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAIMA).

The Government allocates Pacific cod in the BSAIMA among different sectors of the fishing industry. Fishermen’s belongs to the trawl Catcher / Processor (CP) sector. It contends that the most recent allocation, which reduced its share of the Pacific cod fishery, did not comport with applicable law. However, in a split 2-1 decision, the Appeals Court ruled, "We affirm because we agree with the district court that the Secretary did not act arbitrarily and capriciously in adopting Amendment A85."

In its conclusion, the majority ruled, "We are persuaded that the Secretary did not act arbitrarily and capriciously in approving Amendment A85. As we noted in Alliance, '[t]he Secretary is allowed, under [controlling precedent], to sacrifice the interest of some groups of fishermen for the benefit as the Secretary sees it of the fishery as a whole.' 84 F. 3d at 350. Here the interests of Fishermen’s were sacrificed for the benefit of the fishery as a whole, as the Secretary favored sectors that benefitted coastal Alaskan residents, and selected data that would reduce prior unintended favoritism to the non-AFA trawl CP sector, to which Fishermen’s belonged."

Access the complete opinion and dissent (click here).

Nebraska Public Power District v. U.S.

Jan 12: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5083. In this en banc decision, which included concurring opinion and a lone dissenting opinion, the Appeals Court addresses what it called "a difficult question involving the allocation of jurisdiction between regional circuit courts and the Court of Federal Claims." The dispute in centers on the interaction between a provision of the Nuclear Waste Policy Act (NWPA), 42 U.S.C. §§ 10101-10270, and a government contract with a utility company that operates a nuclear power facility.

As explained by the Federal Circuit, the NWPA authorizes the United States Department of Energy (DOE) to enter into contracts with nuclear power producers to dispose of the high-level radioactive waste and spent nuclear fuel produced by nuclear power plants. The statute requires the contracts to provide that in return for the payment of fees by the nuclear power producers, DOE would begin disposing of the spent nuclear fuel and high-level radioactive waste no later than January 31, 1998. 42 U.S.C. § 10222(a)(5)(B). DOE did not begin accepting nuclear waste in 1998.

"Several years later, Nebraska Public Power District (NPPD), which had entered a nuclear waste disposal contract with DOE, filed a breach of contract action in the Court of Federal Claims. A central issue in the breach of contract action was whether prior decisions of the United States Court of Appeals for the District of Columbia Circuit interpreting DOE’s obligations under the NWPA were binding on the parties in the action before the Court of Federal Claims.

The Court of Federal Claims held that the D.C. Circuit’s rulings were void because the D.C. Circuit lacked jurisdiction in the prior statutory review proceedings. Neb. Pub. Power Dist. v. United States, 73 Fed. Cl. 650 (2006). That issue is now before us on interlocutory review. We hold that the D.C. Circuit had jurisdiction to review DOE’s compliance with the NWPA, and that the mandamus order issued by the D.C. Circuit in that proceeding is not void. We therefore reverse the order of the Court of Federal Claims and remand to that court for further proceedings."

The 11-1 majority ruled, "In sum, the D.C. Circuit’s decisions in the Indiana Michigan and Northern States cases were not barred by sovereign immunity and should not have been denied res judicata effect on that ground. We therefore reverse the order of the Court of Federal Claims under review and remand for further proceedings consistent with this opinion."

In a lone dissenting opinion, one Justice indicated, "The issue before the court is a fundamental question of jurisdiction between this court and the D.C. Circuit. If the order in mandamus issued by the D.C. Circuit had interpreted the statutory requirements of the Nuclear Waste Policy Act (NWPA), then it would have been within that court’s jurisdiction. Instead, the D.C. Circuit actually forbids the United States from defending itself in a contract action in the Court of Federal Claims. In my judgment, the order in mandamus is clearly directed to the interpretation of the Standard Contract (not the NWPA) and is thus not only outside the jurisdiction of the D.C. Circuit, but also infringes upon the Court of Federal Claims’s exclusive Tucker Act jurisdiction over the administration of contract disputes, thereby impacting the sovereign immunity of the United States and undermining this court’s duty to review the contract decisions of the Court of Federal Claims. I must therefore dissent from the majority’s judgment. . . I can appreciate the majority’s attempt to avoid criticism of a sister court, but the sheer mushy applesauce consistency of the majority opinion in avoiding a jurisdictional confrontation with the D.C. Circuit should be obvious. On this basis, the trial court’s ultimate holding to void the mandamus was correct and should be affirmed."

According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. According to media reports utilities have filed 71 breach of contract cases in the U.S. Court of Federal Claims and the Department of Energy (DOE) estimates of the government's potential liability is $12.3 billion; but utilities estimates damages at $50 billion. On December 2, the Government Accountability Office (GAO) released a report entitled, Nuclear Waste Management: Key Attributes, Challenges, and Costs for the Yucca Mountain Repository and Two Potential Alternatives (GAO-10-48, November 04, 2009). The report discusses the options of dealing with the nation's most hazardous substances -- which is accumulating at 80 sites in 35 states. The United States has generated 70,000 metric tons of nuclear waste and is expected to generate 153,000 metric tons by 2055 [See WIMS 12/3/09].

Access the complete opinion (click here). Access a Law.com article (click here).

U.S.A. v. Lexington-Fayette Urban County

Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-6296. The district court in this case refused to approve a proposed settlement of a Clean Water Act suit brought by the United States and the Commonwealth of Kentucky against the Lexington-Fayette Urban County Government. The sticking point was a proposed civil penalty of $425,000 that the district court found could be better directed toward alleviating the conditions that violated the Clean Water Act. The Appeals Court ruled, "Such a concern by itself cannot support rejection of an otherwise proper settlement, in light of the express provision for civil penalties in the Clean Water Act. Remand is therefore required."

According to the opinion, the United States, the Commonwealth, and Lexington ultimately reached a settlement agreement, embodied in a proposed consent decree, that would require Lexington to bring its sanitary and storm sewer systems into compliance with the Clean Water Act at an estimated cost, according to the United States, of $250 million to $300 million. The proposed consent decree also would require Lexington to complete two Supplemental Environmental Projects (estimated to cost $1.23 million) and two Commonwealth environmental projects (estimated to cost $1.50 million) and to pay the United States a $425,000 civil penalty. The parties assert that they negotiated the proposed consent decree in good faith. Although Lexington agreed to the entry of the proposed consent decree “without further notice,” Lexington maintains that its agreement to the terms of the proposed consent decree is neither “an admission of liability” nor “an adjudication or admission of any fact or law.”

The settlement was noticed and eighteen public comments were received; four comments remarked that the $425,000 civil penalty was too high and that the money could be better used to bring Lexington’s sewer systems into compliance with the Clean Water Act. The U.S. responded to comments indicating, "It is customary to include substantial penalties for past non-compliance in consent decrees as an important component of enforcement and to operate as a deterrent to future non-compliance by the defendant and by others. It sends an important message to all municipal dischargers that non-compliance is far from free, and that expeditious efforts to improve [a] system are worth the cost."

The district court ruled, "The Court agrees with the commenters who were concerned that the [civil] penalties were too high and that the penalty money could be better applied to the work required under the Consent Decree. . . Present day taxpayers and sewer services users should not be severely penalized for longstanding neglect on the part of the defendant. A large portion of the penalty money could be better utilized by additional [Supplemental Environmental Projects] or by application of a portion of the penalty money to remedial work required by the Consent Decree." The district court denied the United States’ motion for reconsideration, and the U.S. appealed.

The Appeals Court explained further its remand decision saying, "The only stated basis for the conclusion that the proposed penalty was too high was that the money would be better used by Lexington for remediation of 'longstanding' violations. While this may be so, such a consideration conflicts with the determination of Congress that civil penalties are appropriate in the case of Clean Water Act violations. Rejecting a civil penalty as too high because of the greater seriousness of the violation, or because the penalty money could be used for remediation, is in tension with, rather than in accordance with, the statutory purpose behind civil penalties. In most Clean Water Act cases, the more serious the violation, the more that penalty money could be used for remediation. If Congress thought a violator’s money would be better spent that way, Congress would hardly have provided for civil penalties."

Access the complete opinion and separate concurring opinion (click here).