Shenandoah Valley Network v. J. Capka

Feb 17: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-1954. Appealed from the United States District Court for the Western District of Virginia, at Charlottesville. The Appeals Court explains that the Federal Highway Administration (FHWA) and the Virginia Department of Transportation (VDOT) (collectively, the Agencies) are planning improvements to Virginia's Interstate 81 corridor using a tiered review process. Appellants -- a group of environmental and preservation organizations -- challenged the Agencies' execution of the tiered process, alleging various constitutional and statutory violations. The district court rejected these challenges and granted summary judgment in favor of the Agencies.

 

    On appeal, appellants claim that the Agencies are attempting to foreclose consideration of environmentally friendly alternatives for specific sections of I-81 by choosing a corridor-wide improvement concept in the first stage of the review process. Appellants, however, misapprehend the Agencies' position. As confirmed at oral argument, the Agencies plan to comply with the Stipulation in this case and the National Environmental Policy Act (NEPA), by considering site-specific alternatives to the corridor-wide concept in subsequent stages. The Appeals Court ruled, "Because there is no actual dispute here, and because appellants cannot show any injury or imminent threat of injury, this suit is not justiciable. Accordingly, we must dismiss the appeal."

 

    The Appeals Court concluded further, "There is simply nothing for this court to adjudicate. NEPA does not permit us to prescribe outcomes either now or in the future, but neither would it allow us to proscribe in the present proceeding even the consideration of future environmental impacts. Either the prescription of outcomes or the proscription of consideration would not only be contrary to the statute, but would raise a live and present controversy between the parties. Neither circumstance being present, there remains nothing to dispute and we are satisfied that no justiciable controversy lingers. Accordingly, the appeal is dismissed."

 

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Turtle Island Restoration Network v. Department of State

Feb 17: In the U.S. Court of Appeals, Ninth Circuit, No. 10-17059. Appealed from the United States District Court for the Northern District of California. Turtle Island Restoration Network (TIRN), a non-profit environmental organization, appeals from the district court's dismissal of its claim on res judicata grounds [i.e. once a matter is judicially decided, it is finally decided]. TIRN alleges that the U.S. Department of State failed to satisfy its consultation and environmental assessment obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), in conducting annual certifications of countries exempted from the general ban on shrimp imports.

 

    Section 609(b) of Public Law 101-162 prohibits the importation of shrimp harvested with technology that may adversely affect sea turtles, except from countries certified to employ a turtle protection program comparable to that of the United States. The Appeals Court said, "We must decide whether TIRN's current lawsuit for NEPA and ESA violations is precluded by its earlier lawsuits challenging the State Department's regulations implementing the section 609(b)(2) certification process."

 

    The Appeals Court concludes, "Because TIRN's current challenge to the State Department's section 609(b)(2) certification process arises from the same transactional nucleus of facts as its earlier litigation, res judicata bars its claims. Accordingly, we affirm the district court. Although TIRN forfeited its opportunity to challenge the State Department's non-compliance with NEPA and ESA obligations in section 609(b)(2) certifications, our decision doesn't preclude judicial review of this issue. Because the legal question of whether NEPA and ESA apply to section 609(b)(2) has yet to be litigated on the merits, another plaintiff -- not in privity with TIRN -- is still free to bring this challenge."

 

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

 

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The Save The Peaks Coalition v. U.S. Forest Service

 Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona. The Appeals Court does not hold back in expressing its displeasure with this case and its attorney and plaintiffs.

 

    The Appeals Court said, "This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on Federal land all the way to the United States Supreme Court, 'new' plaintiffs appeared. Represented by the same attorney as the losing parties in the first lawsuit, the 'new' plaintiffs -- who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation --brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development.

 

    "Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the 'new' plaintiffs' lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

 

    "Although it is apparent to us that the 'new' plaintiffs and their counsel have grossly abused the judicial process by strategically holding back claims that could have, and should have, been asserted in the first lawsuit (and would have been decided earlier but for counsel's procedural errors in raising those claims), we are compelled to hold that laches [an equitable defense that limits the time in which a party may bring suit] does not apply here because the USFS and ASRLP cannot demonstrate that they suffered prejudice, as defined by our case law. . . Nevertheless, we hold that the Save the Peaks Plaintiffs' claims fail under NEPA and the APA. Accordingly, we hold that the district court properly granted summary judgment to the USFS and ASRLP, and we affirm."

 

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

 

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Adams v. U.S. Forest Service

Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16711. On Appeal from the United States District Court for the District of Arizona. The Federal Lands Recreation Enhancement Act (REA) prohibits the United States Forest Service from charging fees '[s]olely for parking, undesignated parking, or picnicking along roads or trailsides,' for 'hiking through . . . without using the facilities and services,' and '[f]or camping at undeveloped sites . . . .' 16 U.S.C. § 6802(d)(1)(A), (D) & (E). Despite these clear prohibitions, the Forest Service collects fees from all drivers who park their vehicles in a mile-wide piece of the Coronado National Forest running along the 28–mile Catalina Highway, the only paved road to the summit of Mount Lemmon, a heavily used recreational area an hour's drive from downtown Tucson, Arizona.

 

    Four recreational visitors sued, seeking a declaration that the Forest Service was exceeding the scope of its authority under the REA by charging fees to those who drive to Mount Lemmon, park their cars, then picnic, hike, or camp in nearby undeveloped areas. Plaintiffs also sought to enjoin the Forest Service from collecting such fees. The district court granted defendants' Rule 12(b)(6) motion to dismiss. Plaintiffs appealed. The Appeals Court ruled, "Because plaintiffs are correct that the Forest Service's fee structure contravenes the plain language of the REA, we reverse the district court's dismissal of Count I and remand to allow plaintiffs to pursue that claim."

 

    The Appeals Court said further, "In sum, the statutory language is clear. The Forest Service's interpretation is thus entitled to no deference. Chevron, 467 U.S. at 842-43. As alleged by plaintiffs, the Forest Service's fee structure at the Mount Lemmon HIRA [High Impact Recreation Area] does not comport with the REA's express prohibition on charging fees for parking and then hiking through the HIRA without using the facilities and services, camping in undeveloped areas, or picnicking on roads or trailsides. The district court thus erred in dismissing plaintiffs' claim. . .the REA unambiguously prohibits the Forest Service from charging

fees in the Mount Lemmon HIRA for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailsides, or hike through the area without using the facilities and services. We therefore reverse the district court's grant of defendants' motion to dismiss Count I and remand to the district court for further proceedings consistent with this opinion."

 

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Tri-Valley CAREs v. Department of Energy

Feb 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17636. Appealed from the United States District Court for the Northern District of California. The case arises out of Plaintiffs-Appellants Tri-Valley CAREs' (Tri-Valley CAREs) second challenge to the sufficiency of the U.S. Department of Energy's (DOE) Environmental Assessment (EA) of a prospective "biosafety level-3" (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL). In an earlier round of litigation, the Ninth Circuit upheld all aspects of the DOE's original EA, except for its failure to consider the impact of a possible terrorist attack. Following a remand, on September 30, 2009, the district court entered summary judgment in the DOE's favor on the grounds that it had sufficiently revised its Final Revised Environmental Assessment (FREA) to adequately consider the environmental impact of an intentional terrorist attack on the BSL-3 facility at LLNL.

 

    On November 18, 2010, Tri-Valley CAREs appealed the district court's decision, petitioning the Appeals Court to require the DOE to prepare an Environmental Impact Statement (EIS), or, in the alternative, to revise its EA, in light of the allegations set forth in its original complaint, to determine whether an EIS is required.

 

    The Appeals Court ruled, "We hold that the DOE took the requisite 'hard look' at the environmental impact of an intentional terrorist attack in the manner required by the National Environmental Policy Act (NEPA) and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 635 F.3d 1109 (9th Cir. 2011). We further hold that the district court did not abuse its discretion in denying Tri-Valley CAREs' motion to supplement the record. Accordingly, we affirm."

 

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

 

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Pacific Rivers Council v. U.S. Forest Service

Feb 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appealed from the United States District Court for the Eastern District of California. As explained by the Majority Appeals Court, the national forests of the Sierra Nevada Mountains (the Sierras) are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: "The aquatic/riparian systems are the most altered and impaired habitats in the Sierra."

 

    The Sierra Nevada Forest Plan applies to all of the national forests in the Sierras. In January 2001, the United States Forest Service (Forest Service) issued a Final Environmental Impact Statement (2001 EIS) recommending amendments to the Forest Plan. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework.

 

In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement (2004 EIS) recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework.

 

    Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court states, "The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians." On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

 

    The Majority Appeals Court rules, ". . .we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court."

 

    Further explaining, the Majority concludes, "In Lands Council II, we wrote that we will hold that an agency has acted in an arbitrary and capricious manner in preparing an EIS when it has 'entirely failed to consider an important aspect of the problem.'  537 F.3d at 987. In this case, the Forest Service 'entirely failed to consider' environmental consequences of the 2004 Framework on individual species of fish. Given the detailed 64-page analysis of the likely impact on individual species of fish in the 2001 EIS, the complete lack of such analysis of the likely impact on individual species of fish in the 2004 EIS, and the lack of any explanation in the 2004 EIS why it is not 'reasonably possible' to perform some level of analysis of such impact, we have no choice but to conclude that the Forest Service failed to take the requisite 'hard look' at environmental consequences of the 2004 Framework for fish.

 

    "We hold that the Forest Service failed to take a hard look at environmental consequences on fish in the 2004 EIS, in violation of NEPA. We hold that the Forest Service did take a hard look at environmental consequences on amphibians in the 2004 EIS, in compliance with NEPA. We therefore reverse in part and affirm in part, and remand to the district court."

 

    The Minority justice concludes in a lengthy minority opinion, ". . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. In doing so, the majority disregards our circuit's long-standing precedent holding that an agency's timing of analysis required by the National Environmental Policy Act (NEPA) is not arbitrary and capricious if it is performed before a critical commitment of resources occurs. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement ("EIS") and a programmatic EIS that focuses on high-level policy decisions. . ."

 

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

 

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Emergency Services Billing v. Allstate Insurance Co.

Feb 2: In the U.S. Court of Appeals, Seventh Circuit, Case No. 11-2381. Appealed from the United States District Court for the Northern District of Indiana, Hammond Division at Lafayette. The appeal concerns the interpretation of the phrase "consumer product in consumer use" in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiff-appellant, Emergency Services Billing Corporation (ESBC), is the billing agent for the Volunteer Fire Department of Westville (Fire Department), a town in central Indiana. ESBC brought the action against individuals who were involved in motor vehicle accidents and the insurance companies that represent those individuals.

 

    Under CERCLA, the owner of a "facility" from which hazardous substances have been released is responsible for the response costs that result from the release. ESBC believes that personally owned motor vehicles fall within the definition of "facilities" under CERCLA. Thus, ESBC charged the individual defendants, and therefore the insurance company defendants, with the response costs relating to their respective car accidents. Defendants argue that personal motor vehicles fall under CERCLA's "consumer product in consumer use" exception to the definition of "facilities," and they have refused to pay ESBC for the response costs.

 

    ESBC has asked for declaratory relief in the form of a confirmation of the defendants' liability under CERCLA. The district court held that motor vehicles for personal use do, in fact, fall under the "consumer product in consumer use" exception to CERCLA's definition of facility, and that defendants cannot be charged with the Fire Department's costs for responding to the car accidents. ESBC appealed, challenging the district court's interpretation of CERCLA. For the following reasons, however, the Appeals Court affirm the district court's dismissal of ESBC's suit.

 

    The Appeals Court concluded, "CERCLA's "consumer product" exemption from the term 'facilities' cannot reasonably be read to exclude personally-owned, personally-operated motor vehicles. The language of CERCLA is clear on its face, and a look into CERCLA's legislative history, the term "consumer product" as it is used in other statutes, and the EPA's interpretation of the term only confirms our conclusion. We therefore affirm the district court's dismissal of ESBC's suit for declaratory relief."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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