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We are on our Spring publication break. We'll catch you up on all the Appeals Court decisions when
we resume publication on Monday, April 25, 2011.

Gardner v. U.S. Bureau Of Land Management

Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35647. Appealed from the United States District Court for the District of Oregon. According to the Appeals Court, Plaintiffs-Appellants Fred Gardner and Concerned Citizens for Little Canyon Mountain (sometimes collectively Gardner) brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure Act (APA), seeking to compel Defendant-Appellee United States Bureau of Land Management (BLM) to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. The district court granted summary judgment to the BLM. On appeal, Gardner asserts that the BLM's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976 (FLPMA) and off-road vehicle regulations, 43 C.F.R. pts. 8340-8342.

 

    The Appeals Court affirmed the district court decision and said, "We hold that the BLM did not, and was not required to, make a finding that the off-road vehicle use of which Gardner complains had caused 'considerable adverse effects' on the resources enumerated under 43 C.F.R. § 8341.2(a) and, accordingly, we cannot compel the BLM to act to close Little Canyon Mountain to off-road vehicle use. We also hold that the BLM's denial of Gardner's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious."

 

    Access the complete opinion (click here).

Karuk Tribe v. US Forestry Service

Apr 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that Section 7 of the Endangered Species Act (ESA), § 1536(a)(2), requires interagency consultation for any Federal agency action that may affect a listed species. In this opinion, the Appeals Court determines whether a United States Forest Service (USFS) District Ranger's (Ranger) decision that a proposed mining operation may proceed according to the miner's Notice of Intent (NOI) and will not require a Plan of Operations (Plan) is an "agency action" for purposes of triggering the ESA's interagency consulting obligations.

 

    The majority Appeals Court said, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process."

 

    The majority concludes, "The mining laws provide miners like The New 49'ers with the 'right, not the mere privilege' to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS's limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS's decision at issue results in agency inaction, not agency action."

 

    In a lengthy dissenting opinion the dissenting Judge said, "I respectfully but emphatically dissent from the conclusion of the majority to the contrary." He said, "I would therefore hold that the Forest Service must consult with the Fish and Wildlife Service and the National Marine Fisheries Service before allowing suction dredge mining to proceed under NOIs in the Klamath National Forest. . . The majority attempts to minimize the impact of suction dredge mining, stating it is 'best described' as moving 'a few cubic inches at a time' and 'affect[ing] about one quarter of a cubic yard of the river.' Maj. Op. at 4648, 4653. A typical suction dredge picks up from the bottom of the stream and deposits in a tailings pile about one-quarter of a cubic yard of material per day. A cubic yard contains 11,664 cubic inches. Many square yards of stream bottom are scoured in order to obtain one-quarter of a cubic yard of movable material per day, but the record does not tell us how many."

 

    Access the complete opinion and dissent (click here).

Energy Northwest v. U.S.

Apr 7: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5112. Appealed from the United States Court of Federal Claims. The Appeals Court explains that, the government appeals three categories of damages awarded by the United States Court of Federal Claims for the government's breach of its commitment to dispose of Plaintiff's spent nuclear fuel. The contested categories are as follows: First, the trial court awarded Plaintiff the cost of certain site modifications that the government contended were not proved to have been caused by the breach. Second, the court awarded damages to account for certain indirect overhead expenses that accompanied Plaintiff's mitigation activities, though Plaintiff did not offer proof that the mitigation actually caused specific categories of these indirect overhead expenses to increase. Third, the court awarded Plaintiff the cost of interest payments made in connection with Plaintiff's financing of its mitigation activities. Energy Nw. v. United States, 91 Fed. Cl. 531 (2010).

 

    The Appeals Court ruled, "We hold that the Court of Federal Claims erred by failing to require Plaintiff to prove that its site modifications were actually caused by the government's breach. We hold that the court was correct in its treatment of Plaintiff's indirect overhead expenses. And we hold that, because the government did not waive its sovereign immunity against the recovery of interest, the court erred in awarding Plaintiff recovery of its interest costs. We therefore vacate the Court of Federal Claims' judgment as to the site modifications, affirm as to the indirect overhead expenses, reverse as to the interest recovery, and remand." In its final conclusion the Appeals Court said, "We therefore vacate the Court of Federal Claims' award of damages for the Columbia plant modifications, affirm the award for indirect overhead expenses, reverse the award of interest, and remand for further proceedings."

 

    Access the complete opinion (click here).

Morrison Enterprises v. Dravo Corporation

Apr 5: In the U.S. Court of Appeals, Eighth Circuit, Case No: 10-1468 & 10-1469. On appeal from the United States District Court for the District of Nebraska. The Appeals Court explained that Morrison Enterprises, LLC (Morrison) and the City of Hastings, Nebraska (City) (collectively, appellants), and Dravo Corporation (Dravo) are liable within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for hazardous substances released at the Hastings Ground Water Contamination Site (Site). Appellants each sued Dravo under § 107(a) of CERCLA, seeking to recover some of the costs they incurred responding to contaminated ground water at the Site.

 

    The district court denied appellants' motions for summary judgment and granted summary judgment to Dravo on appellants' cost-recovery claims. The district court held (1) CERCLA § 113(f), 42 U.S.C. § 9613(f), provided appellants' exclusive remedy to recover response costs incurred removing contaminants from the City's ground water, and (2) the City's water supply system claims were untimely. The Appeals Court affirmed the district court decision.

 

    The Appeals Court explains further as part of its decision, "We agree with the district court that the City's previously filed counterclaims against Dravo for declaratory judgment and contribution under § 113(f) do not constitute an initial action to recover response costs under § 107(a). Section 113(g)(2) refers to initial and subsequent actions to recover costs specifically under § 107, not contribution claims under § 113(g). In addition, as Dravo points out, § 113(g)(2)(A) and (B) each set forth a specific limitation period that applies to initial actions. Section 113(g)(3) sets forth a separate limitation period for contribution claims. Allowing a contribution claim to serve as the initial action under § 113(g)(2) would impermissibly subject the action to two different limitation periods. The City's contention conflicts with the express language and the overall scheme of CERCLA."

 

    Access the complete opinion (click here).

Arkansas Game & Fish Commission v. U.S.

Mar 30: In the U.S. Court of Appeals, Federal Circuit, Case No. 2009-5121 & 2010-5029. Appeals from the United States Court of Federal Claims. The Appeals Court explains that the Arkansas Game and Fish Commission (the Commission) filed a physical takings claim against the United States in the Court of Federal Claims (Claims Court), alleging that the United States had taken its property without just compensation. The Commission claimed that temporary deviations by the Army Corps of Engineers (the Corps) from an operating plan for Clear-water Dam during the years 1993 to 2000 caused in-creased flooding in the Commission's Dave Donaldson Black River Wildlife Management Area (Management Area). The flooding, in turn, caused excessive timber mortality in the Management Area. The Claims Court concluded that the United States had taken a temporary flowage easement over the Commission's property and awarded a total of $5,778,757.90 in damages. Ark. Game & Fish Comm'n v. United States, 87 Fed. Cl. 594, 617, 647 (2009).

 

    The Appeals Court, however, in a split decision, concluded that the Corps' deviations did not constitute a taking, and reversed the decision of the claims court. The majority ruled, "Because the deviations from the 1953 plan were only temporary, they cannot constitute a taking. The actions at most created tort liability. We recognize that in other contexts the distinction between a temporary and permanent release plan may be difficult to define. The government cannot, of course, avoid takings liability by characterizing inevitably recurring events as merely a series of temporary decisions. Here, however, the Corps' regulatory scheme has itself clearly distinguished between permanent and temporary release rates. The deviations in question were plainly temporary and the Corps eventually reverted to the permanent plan. Under such circumstances, the releases cannot be characterized as inevitably recurring."

 

    The dissent Judge concluded, "The findings of the Court of Federal Claims are not disputed by my colleagues as to the nature, cause, and amount of the damage to the Arkansas property. The determination that a compensable taking occurred is fully in conformity with precedent. My colleagues' ruling contradicts the entire body of precedent relating to the application of the Fifth Amendment to government-induced flooding. I respectfully dissent."

 

    Access the complete opinion (click here).

Natural Resources Defense Council v. U.S. EPA

Mar 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-72288. On Petition for Review of an Order of the U.S. EPA. The Appeals Court explains that pursuant to the Clean Air Act, the U.S. EPA regulates emissions of particles known as particulate matter. In order to meet statutory and regulatory requirements, California submitted a state implementation plan (SIP) to the EPA for its approval. The SIP contains, among many other things, limits on motor vehicle emissions for the years 2009 and 2012. Although the EPA's overall approval process of the SIP is still underway, the Agency has made a preliminary finding that the SIP's limits on motor vehicle emissions for years 2009 and 2012 are adequate for purposes of the State's transportation plans and projects.

 

    The EPA's adequacy determination allows California to approve transportation plans and projects that otherwise could not proceed. Pursuant to 42 U.S.C. § 7607(b)(1), several environmental groups (Natural Resources Defense Council (NRDC), et al) filed the petition for review. Petitioners assert that the EPA's adequacy determination was arbitrary, capricious, or otherwise contrary to law. The Appeals Court denied the petition.

 

    The Appeals Court explains it decision further saying, "Petitioners challenge the EPA's final agency action -- its determination that the baseline budgets were 'adequate' for transportation conformity purposes. Our jurisdiction is limited to deciding whether that decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 5 U.S.C. § 706(2)(A); see also 42 U.S.C. § 7607(b) (describing the extent of jurisdiction); Envtl. Def., 467 F.3d at 1332-33 (discussing the limits of jurisdiction under § 7607(b)). This limitation is important because, at many times in Petitioners' briefs, they appear to be challenging other, earlier actions by the EPA." The Appeals Court cites for example that, "Petitioners appear, at times, to argue that the placement of air quality monitors is erroneous because none of those monitors is in close proximity to a highway. But as the government correctly points out, the placement of monitors was the subject of earlier rulemaking and, therefore, cannot be challenged in this action."

 

    On the main issue of, "challenging the EPA's application of those rules to California's submitted motor vehicle emissions budgets," the Appeals Court says, "Petitioners argue that the EPA failed to consider a relevant factor -- attainment -- when it made its adequacy determination concerning the milestone-year budgets. The EPA concedes that it did not consider Petitioners' attainment data for purposes of the milestone-year budgets but argues that nothing requires it to do so. Therefore, the parties' dispute boils down to whether the EPA must consider attainment data when conducting its adequacy review of a budget for a milestone year."

 

    On the issue of compliance with the Conformity Rule, the Appeals Court points out that, "Quoting only portions of the conformity rule, petitioners argue that the rule requires that the milestone-year budgets be 'consistent with . . . attainment.' . . . But Petitioners' repeated quotation of only part of the rule is misleading. The full text of the rule flatly contradicts their reading. A budget must be 'consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission). (emphases contained in original). The plain-text meaning of the rule is clear: For budgets concerning milestone years, reasonable further progress requirements are relevant; for budgets concerning

the attainment year, attainment requirements are relevant; and for budgets concerning maintenance years, maintenance requirements are relevant. Because the approved budgets at issue concern milestone years only, the only relevant requirements are reasonable further progress requirements; attainment requirements are not relevant."

 

    Finally, the Appeals Court said, "In summary, the EPA's reading of its own regulations, which does not require an approvable attainment demonstration, is reasonable. Accordingly, an alternative reading to the agency's interpretation is not 'compelled by the regulation's plain language.' Thomas Jefferson Univ., 512 U.S. at 512. We have carefully considered all of Petitioners' other arguments as well, but we find none of them persuasive."

 

    Access the complete opinion (click here).