Hoopa Valley Tribe v. FERC

Dec 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1134. The Appeals Court indicates that one of the modern U.S. government's major regulatory tasks is to reconcile competing demands on the Nation's natural resources. The dispute in this case concerns water resources in the Pacific Northwest, where a hydroelectric plant provides power to some citizens but interferes with the food needs and recreational desires of others.

 

    The Klamath Hydroelectric Project is located on the Klamath River in Oregon and California. The Project serves as a source of electricity for customers in a six-state area of the Pacific Northwest. From 1956 to 2006, a power company known as PacifiCorp operated the Klamath Hydroelectric Project pursuant to a 50-year license granted by the Federal Energy Regulatory Commission (FERC). Since the original license expired in 2006, PacifiCorp has operated the Project under successive annual licenses granted by FERC.

 

    The Hoopa Valley Tribe of American Indians holds fishing rights in the Klamath River and subsists in part on the River's trout. In 2007, the Tribe requested that FERC impose conditions on PacifiCorp's annual licenses so as to preserve the Klamath River's trout fishery. FERC declined to do so. In this Court, the Tribe has challenged FERC's refusal as contrary to the Commission's regulations and precedents, and as unsupported by substantial evidence. The Appeals Court said it disagreed and denied the Tribe's petition.

 

    The Appeals Court ruled, "This controversy presents "a classic example of a factual dispute the resolution of which implicates substantial agency expertise.' Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989). FERC acknowledged conflicting evidence and weighed the testimony of dueling experts. There was evidence on both sides; we thus have no basis to overturn the Commission's resolution of this debate. The Commission's conclusion is based on substantial evidence. Cf. Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746-47 (D.C. Cir. 2001)."

 

    Access the complete opinion (click here).

The Lands Council v. McNair

Dec 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36026. Appeal from the U.S. District Court for the District of Idaho. The Lands Council and Wild West Institute challenged the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project (Project) area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violates the National Forest Management Act (NFMA), the IPNF Plan, and the National Environmental Policy Act (NEPA). On cross-motions for summary judgment, the district court granted summary judgment in favor of the Forest Service and denied Lands Council and Wild West Institute's motion for summary judgment. Lands

Council appeals. The Appeals Court affirmed the decisions of the district court.

 

    Access the complete opinion (click here).

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).