Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

Dec 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17406. Appeal from the United States District Court for the District of Arizona. The Kofa National Wildlife Refuge and Wilderness in

southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service (Service) built two water structures (the Yaqui and McPherson tanks) within the wilderness area.

 

    Plaintiffs Wilderness Watch, Inc., et al brought suit against the Service. Plaintiffs allege that the Service's actions violated the express prohibition on the development of structures in the Wilderness Act, The district court granted summary judgment

to the Service, and Plaintiffs appealed. Reviewing de novo, High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 638 (9th Cir. 2004), the Appeals Court reversed and remanded the district court decision.

 

    Access the complete opinion (click here).

Greater Yellowstone Coalition v. Lewis

Dec 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35729, 09-35753. Appealed from the U.S. District Court for the District of Idaho. The Appeals Court indicates that Greater Yellowstone appeal the district court grant of summary judgment on Greater Yellowstone's action claiming that the expansion of the J .R. Simplot Smoky Canyon Mine would violate the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the National Forest Management Act (NFMA). The Appeals Court, in a split decision, affirmed district court decision.

 

    The majority opinion said, "The agencies did not act arbitrarily and capriciously in their review and approval of Simplot's proposed mine expansion project. The agencies complied with NEPA's procedural requirements by fully evaluating the environmental impacts of the mine and disclosing those results to the public. Simplot was not required to obtain a § 401 certification. The district court properly granted summary judgment to the agencies.

 

    The dissent indicated that, "Although I concur in Part II.C of the majority opinion, I cannot agree with the majority that the federal agencies acted neither arbitrarily nor capriciously when approving the Smoky Canyon Mine expansion project. The majority violates both the letter and the spirit of the applicable federal environmental standards by approving agency action despite currently lacking critical information and by deferring key evaluations to some unspecified future date."

 

    Access the complete opinion and dissent (click here).

National Petrochemical & Refiners Association v. EPA

Dec 21: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1070. The Appeals Court explains that in 2007, Congress enacted the Energy Independence and Security Act (the EISA), Pub. L. No. 110–140. It expanded the renewable fuel program under the Energy Policy Act of 2005, Pub. L. No. 109–58, which required that set volumes of renewable fuel be incorporated into gasoline sold in the United States each year. The EISA increased the volume requirements for renewable fuel and added new volume requirements for advanced biofuels, biomass-based diesel, and cellulosic biofuel.

 

    Congress thus sought "[t]o move the United States toward greater energy independence and security, to increase the production of clean renewable fuels, to protect consumers, to increase the efficiency of products, buildings, and vehicles, to promote research on and deploy greenhouse gas capture and storage options, and to improve the energy performance of the Federal Government." Pub. L. No. 110–140, 121 Stat. 1492 (2007). EPA posted notice of the final revisions to the regulations promulgated under the 2005 Act on its website on February 3, 2010 and published the revised regulations in the Federal Register on March 26, 2010. Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, 75 Fed. Reg. 14,670 (Mar. 26, 2010) (Final Rule).

 

    Petitioners, the National Petrochemical and Refiners Association and the American Petroleum Institute, challenge the Final Rule on three grounds. They contend that it violates statutory requirements setting separate biomass-based diesel volume requirements for 2009 and 2010; it is impermissibly retroactive; and it violates statutory lead time and compliance provisions. The Appeals Court denied the petitions for review.

 

    Access the complete opinion (click here).

Special Holiday Offers For eNewsUSA

It's the Holiday season and we're in the Holiday Spirit.

 

The Environmental Appeals Court Blog is on Holiday break until January 3, 2011. But, now is a great time to review the full text of every issue of our eNewsUSA Daily Environmental Briefing Report for the first half of December 2010, and get ready to be on top of all the major environmental and energy issues in 2011. We've posted the first 13 issues of December 2010 for your review. You can access the issues on a special blog established just for this promotion (click here).

 

We have two Holiday specials that could be a valuable gift for you and/or a statewide business association which you are affiliated with. You can subscribe now to receive eNewsUSA at a special half-off rate for 2011 -- just $119.50 (until the end of February).

 

Or, if you are a member of a statewide business association (non-Michigan), we also have a special redistribution option for Associations that can offer even greater savings for you and your association members. See details (click here).

Minch Family LLLP v. Buffalo-Red River Watershed

Dec 15: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3223. According to the Appeals Court, during contentious litigation in Minnesota state court, a judge entered an order authorizing the Buffalo–Red River Watershed District (BRRWD) to "clean out" or remove accumulated silt and topsoil from a ditch running next to a road along the length of one of A. R. Minch's fields. The Minch Family LLLP later sued BRRWD in federal court under contending BRRWD exceeded the scope of the clean-out order by entering upon Minch's property. Minch alleged causes of action for trespass, nuisance, and the wrongful death of A. R. Minch. The district court granted appellees' motion for judgment on the pleadings' finding Minch's claims were: (1) barred by the Rooker-Feldman doctrine; (2) res judicata; and (3) insufficient to state causes of action as pled. The Appeals Court affirmed the district court ruling.

    Access the complete opinion (click here).

Heartwood, Inc. v. Elizabeth Agpaoa

Dec 13: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5761, appealed from the Eastern District of Kentucky at Lexington. As explained by the Appeals Court, Plaintiffs-Appellants Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively Heartwood) are non-profit corporations active in forest and species protection. Heartwood appeals the district court's judgment granting Defendants-Appellees Elizabeth L. Agpaoa, the Regional Forester for the Daniel Boone National Forest (Forest), and the U.S. Forest Service (collectively Forest Service) judgment on the administrative record. Heartwood claims that the Forest Service enacted the 2004 Forest Plan (Plan) for the Forest in violation of the procedures mandated by the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA).

 

    Specifically, Heartwood alleges that, in promulgating the Plan, the Forest Service failed to consider a "no commercial logging" alternative and account for the environmental effects of herbicide use through an environmental impact statement (EIS). Heartwood also challenges the Forest Service's environmental assessment (EA) for the 2003 Ice Storm Recovery Project (Project) in the Forest, undertaken pursuant to the Plan; on this issue, Heartwood argues that the EA inadequately addressed the effects of herbicide application in the Project. Heartwood brings these claims against the Forest Service, a federal agency, under the Administrative Procedure Act (APA).

 

    The Appeals Court reversed the district court's judgment which denied Heartwood's motion and instead entered judgment in full for the Forest Service; and remanded the case to the district court with instructions to "dismiss for want of jurisdiction." The Appeals Court said, "Unfortunately, Heartwood seems to have lost sight of the forest of constitutional standing for the trees of associational and agency standing, and it fails to allege with adequate specificity the central element of injury in fact"; and ruled, "Heartwood's standing affidavits are too general in their identification of 'site-specific activities [that] diminish[] or threaten to diminish their members' enjoyment of the designated' forest sub-sections, so Heartwood does not have standing to maintain this action." The Appeals Court cited Ctr. For Biological Diversity v. Lueckel, 417 F.3d at 537 (6th Cir. 2005).

 

    Access the complete opinion (click here).

Arrow Gear Company v. Downers Grove Sanita

Dec 10: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 09-1509, 09-4030. The Appeals Court explains that in 2008 the appellees, Arrow and Precision, brought separate suits under section 113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), seeking contribution -- seeking to shift some of the costs that Arrow and Precision had incurred, as a result of having been found liable for groundwater contamination, to other polluters of the same site.

 

    Those other polluters are the defendants in Arrow's and Precision's suits. The district court dismissed the suits as barred by res judicata [i.e. a matter already judged]. The Appeals Court said, "We have consolidated the appeals, but discuss only Arrow's appeal because Precision's presents no additional issues. We address issues of appellate and trial-court jurisdiction, res judicata, and interpretation of settlement agreements."

 

    In 2004 a class action, Muniz v. Rexnord Corp., was brought in federal district court on behalf of residents of the contaminated area against a number of the polluters, including Arrow, on a variety of grounds. The suit asked for damages, mainly for impairment of property values. The parties agreed in 2006 to a settlement of (in round numbers) $16 million. The defendants had then to allocate the expense among them, and they did so in a series of agreements.

 

    The Appeals Court said in its conclusion, "It would have been difficult to settle all possible claims by the cross-claiming defendants before their total liability was determined. So claim splitting -- allocation of the $16 million first, and of the additional $5 million (which will doubtless grow) second -- made sense, and the district court should not have forbidden it. True, the order dismissing Muniz had not mentioned the settlements, and some of them had postdated the dismissal. But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order.

 

    But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order. Were there doubt about the scope of the settlements, we would have to remand for further proceedings to still that doubt. But there is no doubt that the settlements confine release to claims by defendants against one another concerning the allocation of the $16 million. So the defendants have no defense of res judicata to the present suits, and the judgment of the district court is therefore reversed with instructions to reinstate the suits."

 

    Access the complete opinion (click here).