Conservation Force v. Salazar

Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15306. Appealed from the United States District Court for the Northern District of California. This case involves the seizure and administrative forfeiture of two leopard trophies by the United States Fish and Wildlife Service (FWS) from two hunters, Patricio Miguel Madero Blasquez and Colin Crook (plaintiffs), who attempted to import the leopard trophies from African countries without proper export permits. Plaintiffs and Conservation Force, a nonprofit entity, filed suit against Federal defendants Ken Salazar (Secretary of the Department of the Interior), Rowan Gould (Director of FWS), Daniel Shillito (Regional Solicitor for the Department of the Interior), Carolyn Lown (Regional Assistant Solicitor for the Department of the Interior), and the FWS asserting that the administrative forfeiture of their leopard trophies violated the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), the Eighth Amendment Excessive Fines Clause, and the Due Process Clause. The Appeals Court affirmed the district court's dismissal of plaintiffs' CAFRA and constitutional claims.

 

    The Appeals Court explained further, "In this case, the district court properly held that plaintiffs' CAFRA claim is barred from judicial review. Plaintiffs received proper notice of the proposed forfeitures. Plaintiffs chose to pursue an administrative path and filed petitions for remission and petitions for supplemental remission. These petitions were reviewed by the Office of the Solicitor and denied. Because plaintiffs chose to pursue administrative remedies, they waived the opportunity for judicial forfeiture proceedings. See 50 C.F.R. § 12.24(a) (expressly providing that remedies are exclusive); Malladi Drugs, 552 F.3d at 889 (holding that the remedies are exclusive); Cole v. United States (In re $844,520), 136 F.3d 581, 582 (8th Cir. 1998) (per curiam) (holding that the remedies are exclusive). Accordingly, as it properly held, the district court properly dismissed the action."

 

    Access the complete opinion (click here). [#Wildlife, #CA9]

Lake Carriers' Association v. U.S. EPA

Jul 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1001, consolidated with 09-1010, 09-1076, 09-1115. On Petitions for Review of a Final Action of U.S. EPA. Trade associations representing commercial ship owners and operators petition for review of a nationwide permit issued by U.S. EPA for the discharge of pollutants incidental to the normal operation of vessels. The petitioners raise a number of procedural challenges, all related to EPA's decision to incorporate into the permit, conditions that states submitted to protect their own water quality. The Appeals Court rules, "Because we find that the petitioners have not shown that the additional procedures they request would have had any effect on the final permit, we deny the petition for review."

 

    The Appeals Court explains the background saying Shortly after the CWA was enacted, EPA promulgated a regulation exempting incidental vessel discharges from the permitting (and therefore the certification) requirements of the Act. Exempted discharges included "sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel." 40 C.F.R. § 122.3(a). The regulation was in force for more than thirty years. Then, in 2008, the Ninth Circuit affirmed a district court decision vacating the regulation, finding that EPA lacked authority to exempt incidental vessel discharges. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) [See WIMS 7/24/08]. After a stay to allow EPA time to implement a means of issuing permits for vessel discharges, the regulation was finally vacated on

February 6, 2009.

 

    In response to the Ninth Circuit's decision, EPA developed a general permit, pursuant to section 402 of the CWA, to cover the incidental vessel discharges previously exempted by the regulation. See Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29, 2008) [See WIMS 12/22/08]. The agency estimated that the Vessel General Permit (VGP) would cover discharges from approximately 61,000 domestic-flagged commercial vessels and 8,000 foreign-flagged vessels. Id. at 79,481. And unlike the majority of permits issued under section 402, which cover discharges originating in only a single state, the VGP would cover discharges in waterways throughout the United States.

 

    On December [29], 2008, EPA's final VGP became effective. Final NPDES General Permit, 73 Fed. Reg. at 79,47[3]. Part VI of the permit, which was not included in the draft VGP, is composed of approximately 100 state certification conditions. U.S. EPA, VESSEL GENERAL PERMIT (VGP) (2008), at 62-104 (J.A. 825-67). Vessels covered by the permit are required to adhere to the general provisions of the VGP with respect to all discharges, and are further required to adhere to any Part VI certification condition imposed by a state into the waters of which the vessel is discharging pollutants.

 

    In 2009, Lake Carriers' Association, Canadian Shipowners Association, and American Waterways Operators filed petitions for review of the final VGP. The petitions were consolidated into the single suit now before us. The trade associations raise three challenges. First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final VGP, which contained the state certification conditions. Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions. Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601 et seq.

 

    The Appeals Court notes in part, ". . .we note that EPA's resolution of this matter does not leave the petitioners without recourse. If they believe that the certification conditions imposed by any particular state pose an inordinate burden on their operations, they may challenge those conditions in that state's courts. . . If they believe that a particular state's law imposes an unconstitutional burden on interstate commerce, they may challenge that law in federal (or state) court. See Am. Trucking Ass'n, 600 F.3d at 628 n.1. And if neither of these avenues proves adequate, they are free to ask Congress to amend the CWA, perhaps by reimposing the exemption for incidental vessel discharges."

 

    The Appeals Court concludes in part, "In sum, given the case law and the arguments that EPA had before it, the agency correctly concluded that it did 'not have the ability to amend or reject conditions in a [state's] CWA 401 certification.' EPA Response to Comments, at 14-11 to 14-12 (J.A. 1062-63) (citing Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107, 110-11 (2d Cir. 1997)). Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose, and we decline to remand to require EPA to do a futile thing. . . The petitioners' remaining arguments fail for the same reason that their notice-and-comment argument fails. . ."

 

    Access the complete opinion (click here). Access extensive information on the Final Vessel General Permit from U.S. EPA (click here).  [#Water, #GLakes, #CADC]

 

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Western Watersheds Project, et al v. BLM

Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15799. Appealed from the United States District Court for the District of Nevada. In a brief, unpublished opinion, the Appeals Court affirmed the district court denial of a temporary restraining order/preliminary injunction and said, "Plaintiffs appeal the district court's order denying their motion for a preliminary injunction. . . We agree with the reasons thoughtfully expressed by the district court and find no abuse of discretion. . . Reviewing for abuse of discretion, we affirm."

 

    The case concerns approval of a wind energy facility in Spring Valley, Nevada. Plaintiffs are two environmental organizations -- Western Watersheds Project and Center for Biological Diversity. Defendant is the Bureau of Land Management (BLM). Intervening defendant is Spring Valley Wind, LLC, the energy company developing the wind facility at issue. Plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction in the district court seeking to bar the BLM from issuing a Notice to Proceed or otherwise authorizing construction and site clearing for the Spring Valley Wind Energy Facility which was set to commence on March 28, 2011.

 

    Plaintiffs claim the BLM conducted a "fast track" approval of the Spring Valley Wind Facility so that the project could take advantage of federal financing under the American Recovery and Reinvestment Act, which required project approval by the end of 2010. It is alleged this approval process was pushed by high-level BLM officials and Spring Valley Wind, LLC proponents in violation of NEPA. Specifically, plaintiffs claim: (1) there are significant and unknown environmental impacts to the project site that warrant an EIS, not just an EA; (2) the BLM's decision provided no detailed statement of reasons establishing that the project's impacts are insignificant; (3) the BLM failed to take a "hard look" at the environmental impacts without adequate scientific data, including impacts to bats and sage-grouse, and the cumulative environmental impacts of the project; (4) the decision did not properly consider or address public comments and opposing views; and (5) the final EA failed to consider an adequate range of alternative courses of action.

 

    The district court ruled that, "Having fully considered the administrative record and the arguments of the parties, and having weighed all relevant factors necessary for issuing a preliminary injunction -- the likelihood of success on the merits, the likelihood of irreparable harm, the balance of equities, and the public interest -- the court finds that the plaintiffs have failed to carry their burden of showing that a preliminary injunction should issue at this time. Plaintiffs' motion for a temporary restraining order/preliminary injunction is denied."

 

    One of the Appeals Court justices wrote separately saying, "I concur in the result. I write separately, however, to express my concern about the district court's conclusion that Plaintiffs are unlikely to succeed on the merits. . . agree with the majority that the district court did not abuse its discretion by determining that the project's construction is unlikely to cause irreparable harm to bats or sage grouse. Nor did the district court err when balancing the equities in Defendants' favor or when considering the public's interest in the project. In my view, however, Plaintiffs are likely to succeed on the merits because the BLM failed adequately to consider the potentially significant cumulative impacts of the project and other reasonably foreseeable future actions. . ."

 

    Access the unpublished opinion and separate concurrence and concern opinion (click here). Access links to the district court decision and additional briefs and documents from the Advocates for the West website who represented the Plaintiffs (click here). [*Energy/Wind, *CA9]

Brod v. Omya

Jul 18: In the U.S. Court of Appeals, Second Circuit, Case No. 09-4551. Appealed from the United States District Court for the District of Vermont. Appealed from: (1) The district court vacated, after a remedy hearing, so much of a summary judgment as held defendants liable for creating an "imminent and substantial endangerment" as set forth in the Resource Conservation and Recovery Act of 1976 (RCRA) due to the presence of aminoethylethanolamine (AEEA) in defendants' waste; and, (2) so much of a summary judgment as granted dismissal of plaintiffs' open dumping claim brought under the provisions of RCRA; the District Court (i) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment" and thus no remedy was warranted; (ii) granted defendants' motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA; and (iii) found that arsenic was not present at a level high enough to subject defendants to liability under RCRA. The Appeals Court affirmed the district court decision.

 

    The District Court (1) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a "serious endangerment," and thus no remedy was warranted; and (2) granted Omya, Inc. and Omya Industries, Inc. (collectively, Omya) motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA.

 

    The District Court dismissed Residents Concerned about Omya (collectively, the plaintiffs or RCO), open dumping claim, the court having found that arsenic was not present at a level high enough to subject Omya to liability under RCRA. In its complaint, which raised two claims, RCO alleged that Omya's waste disposal practices violated RCRA. RCO first claimed that Omya was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically-connected water sources with AEEA. RCO also claimed that Omya was operating an unlawful open dump because Omya's solid waste allegedly contained an amount of arsenic above the permitted level established by U.S. EPA.

 

    The Appeals Court concluded, "Because we determine that, in a case of this nature, a proper NOI [notice of intent to sue] must specify each alleged containment, we need not reach RCO's other claims. In accordance with the foregoing, the judgment is affirmed." However, the Appeals court also said, ". . .the plaintiffs' failure to specify arsenic in their NOI supports the District Court's dismissal of the endangerment and the open dumping claims. Of course, the dismissal of this action will not prohibit RCO from again giving notice to Omya and filing its suit in compliance with RCRA's notice and delay requirements upon future discovery of potential violations of the federal environmental laws."

 

    Access the complete opinion (click here). [*Solid, *Haz, #CA2]

Myers v. U.S.

Jul 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-56092. Appeal from the United States District Court for the Southern District of California. Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child's residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted "reasonably" and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the "discretionary function" exception to tort liability of the United States applies in this case. In a partially split decision, the Appeals Court reversed and remanded for further proceedings.

 

    The majority opinion concluded, "Because the district court erred in holding that the "discretionary function" exception barred the Navy's liability on and the court's subject matter jurisdiction over Myers's claim, and clearly erred in finding that the Navy acted "reasonably" and not in breach of its duty in conducting the remediation of contaminated soil in the project at issue here, we reverse and remand this action for further proceedings. Nevertheless, we find it unnecessary to reassign the case to a different judge on remand."

 

    In a partial concurrence and partial dissent on Justice indicated, "I concur in that portion of the majority opinion concluding that additional factfinding is warranted. However, I would remand the case to the district court for that additional factfinding rather than direct a verdict for Plaintiffs as the majority has done. I also agree that there is no need to assign the case to a different judge on remand. . . I respectfully dissent from the balance of the majority opinion.

 

    Access the complete opinion and partial dissent (click here). [*Toxics, #CA9]

Sierra Club v. Southwestern Electric Power Co

Jul 14: In the U.S. Court of Appeals, Eighth Circuit, Case Nos: 10-3452 & 10-3456. Appealed from the U.S. District Court for the Western District of Arkansas - Texarkana. The Sierra Club and several related parties brought the suit against the U.S. Army Corps of Engineers (the Corps) in February 2010, seeking to set aside a Clean Water Act permit (the § 404 permit) the Corps had issued to the Southwestern Electric Power Company (SWEPCO) which planned to construct a new power plant.

 

    After SWEPCO intervened as a defendant, the Sierra Club moved to enjoin construction of the plant. The Hempstead County Hunting Club (Hunting Club) filed a similar action against SWEPCO, the Corps, and the U.S. Fish and Wildlife Service (FWS) in July 2010. The plaintiffs alleged that SWEPCO, the Corps, and the FWS failed to comply with the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and Arkansas state law.

 

    The district court granted only part of the injunctive relief requested in the plaintiffs' motions for a preliminary injunction. It first held that the Sierra Club and the Hunting Club had standing to challenge the activities authorized under the § 404 permit and then that they had satisfied the criteria for a preliminary injunction, including showing a likely threat of irreparable harm and a likelihood of success on the merits. It ordered all "work authorized by the § 404 permit" to "halt immediately."

 

    SWEPCO's appealed the preliminary injunctions ordered in each case. SWEPCO argued that the district court lacked subject matter jurisdiction because the plaintiffs had failed to show an injury in fact on their NEPA, CWA, and ESA claims. It also contends that the district court abused its discretion in granting the preliminary injunction. The Appeals Court affirmed the district court's limited injunction citing Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689–90 (8th Cir. 2003).

 

    Further explaining the decision, the Appeals Court said, "The district court found that an injunction was in the public interest because it would convey to the public the importance of having its government agencies fulfill 'their obligations and comply[] with the laws that bind them.' The district court rejected SWEPCO's arguments that an injunction would put at risk hundreds of jobs and threaten the electric generating capacity of a region in need. '[O]utside of SWEPCO's bare assertions,' it noted, there was 'no other evidence of need . . . anywhere in the record.'

 

    "The district court's analysis on this element is sound. We agree that, just as important as the public interest in potential economic gains is 'the public's confidence that its government agencies act independently, thoroughly, and transparently when

reviewing permit applications.' The 'environmental dangers at stake in this case are serious,' see Davis, 302 F.3d at 1116, and the public interests that might be injured by a preliminary injunction, such as temporary loss of jobs or delays in increasing energy output in the region, 'do not outweigh the public interests that will be served.' Alliance for the Wild Rockies, 632 F.3d at 1138.

    Access the complete opinion (click here). [#Water, #Energy, #CA8]

NRDC v. West Coast Seafood Processors Association

June 6: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-16245 and 09-16796. Appealed from the United States District Court for the Northern District of California. In brief summary the Appeals Court indicated that West Coast Seafood Processors Association (WCSPA) appealed from the district court's denial of its motion to intervene as a defendant in the case, in which the Natural Resources Defense Council, Inc., and Pacific Marine Conservation Council, Inc. (together, NRDC) challenged the National Marine Fisheries Service's (NMFS) program to preserve groundfish species off the coast of California, Oregon, and Washington. In a split decision, the Appeals Court ruled simply that, "Because the litigation between NRDC and NMFS has ended, we dismiss WCSPA's appeal as moot."

 

    Ruling on one aspect of the case, the majority Appeals Court said, "It is not reasonable to expect that this dispute about timeliness will arise again. The hybrid Groundfish Plan/Specifications litigation is over. Although NRDC will likely challenge future Specifications and WCSPA will likely file future motions to intervene, the timeliness issue, which is the subject of this appeal, will not likely reappear (as it did not appear in any of the other cases in which the NRDC challenged earlier Specifications and in which WCSPA successfully intervened), unless the same unlikely, hybrid scenario develops again over the next decade. Such a speculative possibility does not constitute a 'reasonable expectation.'"

 

    In a lengthy dissenting opinion, one justice ruled, ". . .I conclude the case survives mootness because it falls in the 'capable of repetition, yet evading review' exception to mootness. I would thus reach the merits of the appeal and reverse." He said further, "

I conclude that this case falls within the 'capable of repetition, yet evading review' exception to mootness. This exception applies if two requirements are met: '(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.' Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). The present case meets both of these requirements."

 

    Access the complete opinion (click here). [*Wildlife, CA9]