Native Ecosystems Council v. Weldon (Forest Service)

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35659. Appealed from the United States District Court for the District of Montana. The Appeals Court explains that this case arises out of Native Ecosystems Council's (Native Ecosystems Council) appeal of the district court's grant of summary judgment in favor of the United States Forest Service (Forest Service) in an action regarding the Ettien Ridge Fuels Reduction Project (the Project) in the Lewis and Clark National Forest, located in Montana. The Project was designed to reduce the spread and intensity of potential future wildfires in the Judith Basin County Wildland-Urban Interface by removing naturally occurring wildfire fuels. Native Ecosystems Council alleges that the Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it issued a Finding of No Significant Impact (FONSI) and Decision Notice approving the Project.

 

    The Appeals Court ruled, "We hold that the Forest Service took the requisite 'hard look' at the environmental impact of the Project on the elk hiding cover, and goshawk populations, in the manner required by NEPA. . . We further hold that the district court did not err in granting summary judgment to the Forest Service on Native Ecosystems Council's NFMA claims, because the Forest Service reasonably considered the 'relevant factors' that could have impacted the elk hiding cover and goshawk populations in its analysis of the Project. Accordingly, we affirm."

 

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

 

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Wolfsen Land & Cattle Co. v. Pacific Coast Federation

Sep 21: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5113. Appealed from the United States Court of Federal Claims. The case involves a takings claim arising from the government's releases of water from a dam in central California. Downstream property owners sued in the Court of Federal Claims, alleging that the releases unlawfully impaired their property rights in the water and inundated their land.

    The Appeals Court indicates, "The government had released the water in accordance with a consent order entered by a district court and expressly approved by Congress. The consent order was the result of environmental litigation pursued over a number of years by certain groups interested in the ecological fate of the river. After the present lawsuit was filed, two of these groups moved to intervene as of right, arguing that this case implicated their interests. The Court of Federal Claims denied their motion, finding that the groups' interests were sufficiently aligned with the government's as to create no foundation for intervention. Wolfsen Land & Cattle Co. v. United States, 98 Fed. Cl. 507 (May 24, 2011) (Fed. Cl. Op.). We affirm."

    The case background started in 1942, when the U.S. Bureau of Reclamation dammed the upper San Joaquin River near Friant, California. Friant Dam, which still operates today, generates electricity and collects water for agriculture. But it also caused portions of the river below to dry up, leading to the extermination of Chinook salmon and other species from areas they had previously occupied, as well as other ecological consequences.

    In 1988, a group of plaintiffs sued the federal government over the dam's operation. The Pacific Coast Federation of Fishermen's Associations and the Natural Resources Defense Council (collectively, PCFFA) were among them. They claimed that the dam's operation contravened various state and Federal environmental protection laws. For the next eighteen years, the parties litigated in the district court for the Eastern District of California. In 2006, they finally reached a settlement and releases have continued since, in accordance with the Litigation Settlement and the Settlement Act.

    In the Wolfsen case, PCFFA moved to intervene and was denied and appealed. The Federal Circuit indicates, "This court has not previously identified the standard to be applied when reviewing a trial court's denial of a motion to intervene as of right. . . Both sides cite authority from the regional circuits, which are split on the question [the various cases are citied]. The majority Appeals Court rules, "We find it unnecessary to reach this question, as we see no error in the Court of Federal Claims' judgment. Cf. Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) (finding no need to reach this issue in similar circumstances). We would affirm under both proposed standards of review. Because the question of the standard to apply is non-dispositive, we need not address it."

 

    The Court of Federal Claims ruled: First, the court held that PCFFA had failed to show a direct, non-contingent interest in this case. . . Second, the court held that even if PCFFA had alleged a protectable interest, the interest did not relate to this case in such a way that failure to permit intervention would impede PCFFA's ability to protect itself. . . Third, the court held that even if PCFFA had a protectable interest, and even if that interest related to this case in the manner contemplated by the rule, PCFFA's interests were adequately protected by the government's participation in this case. The majority Appeals Court ruled, "As set forth below, we agree, and on that basis affirm."

 

    In a separate, concurring decision, one Justice indicated, "I concur that the district court did not err in denying PCFFA's motion to intervene as a matter of right. I write separately because I do not agree that the United States -- which opposed PCFFA for years in related litigation -- can be presumed to adequately represent PCFFA in this case. . . At best, the majority has confused litigation goals with legal interests; at worst, it has unnecessarily introduced a new presumption into our cases, raising an additional bar against intervention in cases in which the government is a party."

 

    Access the complete opinion and separate concurrence (click here). [#Water, #CAFed]

 

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Earth Island Institute v. U.S. Forest Service

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16718. Appeal from the United States District Court for the Eastern District of California. The Appeals Court explains that under the National Forest Management Act (NFMA), an Agency's project is required to comply with 1982 viability requirements only to the extent they have been incorporated in the relevant forest plan. Earth Island Inst. v. Carlton, 626 F.3d 462, 470 (9th Cir. 2010). The Appeals Court said, "Here, we conclude that the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate at the project level that the Angora Fire Restoration Project (Angora Project) would maintain viable population levels of management indicator species, including the black-backed woodpecker. Therefore, the Forest Service's analysis of the Angora Project's impact on the black-backed woodpecker's habitat was not arbitrary and capricious under NFMA."

 

    Further, the Appeals Court indicated that the National Environmental Policy Act (NEPA) requires an Environmental Assessment (EA) to comply with certain procedural requirements to ensure that agencies will make informed decisions about the environmental effects of proposed Federal actions and to make this information available to the public. Ecology Center v. Castaneda, 574 F.3d 652, 656-57 (9th Cir. 2009). They said, "Here, because the Forest Service did not fail to (1) ensure the scientific integrity of the final EA, (2) properly respond to dissenting scientific opinion, (3) properly consider proposed alternatives to the Angora Project Environmental Assessment, and (4) take the requisite 'hard look' at the impacts of the Angora Project, we also conclude that the Forest Service's analysis of the Angora Project's environmental effects was not arbitrary and capricious under NEPA. Accordingly, we affirm the district court."

 

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

 

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Christopher Van Hollen, Jr. v. FEC

Sep 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5117. Appealed from the United States District Court for the District of Columbia. Appellee, Representative Christopher Van Hollen, Jr., brought a lawsuit challenging 11 C.F.R. § 104.20(c)(9), a regulation promulgated by the Federal Election Commission ("FEC"), that purports to implement § 201(f)(2)(F) of the Bipartisan Campaign Reform Act (BCRA), to require disclosure of "disbursement for the direct costs of producing and airing electioneering communications."

 

    The District Court granted summary judgment in favor of Appellee, because, in its view, in enacting 2 U.S.C. § 434(f)(2)(F), "Congress spoke plainly [and] did not delegate authority to the FEC to narrow the disclosure requirement through agency rulemaking." Van Hollen, 851 F. Supp. 2d at 89. The Appeals Court said, "We disagree and reverse."

 

    The Appeals Court said, "After reviewing the record with care, we conclude that the District Court erred in holding that Congress spoke plainly when it enacted 2 U.S.C. § 434(f), thus foreclosing any regulatory construction of the statute by the FEC. The statute is anything but clear, especially when viewed in the light of the Supreme Court's decisions in Citizens United v. FEC, 558 U.S. 310 (2010), and FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449 (2007). Furthermore, we do not agree with the District Court that the words 'contributors' and 'contributed' in 2 U.S.C § 434(f)(2)(F) cannot be construed to include a 'purpose' requirement, especially when it is clear that subsection (F) only applies to 'disbursement[s] for the direct costs of producing and airing electioneering communications.'"

 

    Common Cause President Bob Edgar issued a statement on the decision saying, "American voters are the big losers in today's federal appeals court decision permitting 'independent' groups to withhold the identities of the multi-millionaires and corporations investing in the 2012 elections. This decision dooms voters' last chang[c]e of finding out who is intent on pumping millions of dollars into the elections. With 49 days to go, there's still no sheriff in town, it's the wild, wild west. People and companies making six- and seven-figure investments in candidates and causes will want something in return for their money, and the candidates who benefit from their generosity will have a powerful incentive to deliver it. That's why disclosure is so important; before we go to the polls, voters should know to whom the candidates we choose will be beholden."

 

    Access the complete 5-page ruling (click here). [#All] [Editor's Note: This is obviously not an environmental case; it may impact environmental policy making.]

 

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U.S. v. Maury

Sep 17: In the U.S. Court of Appeals, Third Circuit, Case Nos. 09-2305/09-2306/09-2345/09-2346/09-2356. On Appeal from the United States District Court for the District of New Jersey. Following an eight-month criminal trial, a jury convicted Atlantic States Cast Iron Pipe Company and four of its managers of various crimes. These included conspiring to commit a host of environmental pollution and worker safety violations, attempting to cover up or impede Federal investigation of those violations, and substantive violations of the Clean Water Act and the Clean Air Act. Specifically, the Defendants were found to have illegally pumped contaminated water into storm drains and, as a result, into the Delaware River; to have unlawfully burned 50-gallon drums of paint waste in a cupola and emitted the fumes from those activities into the air; and to have attempted to cover up several work-related accidents at its facility, one of which resulted in the death of an employee. The jury also found that the Defendants engaged in a conspiracy to commit these acts -- and to impede the resulting Federal investigation -- in order to maximize productivity and profits at the Plant.

    The Defendants appealed from the jury's verdict, raising a litany of issues relating to pre-trial discovery, the District Court's handling of the trial itself, the propriety of certain jury instructions, and the District Court's sentencing determinations. The Appeals Court said, ". . .in light of the District Court's fine handling of these extraordinarily complicated proceedings, we will affirm the final judgments of conviction and sentence in this case."

    Without getting into all of the details in this lengthy 83-page decision, following the jury verdicts, the Defendants filed an omnibus post-trial brief that raised a multitude of challenges to the jury's verdicts and to the District Court's handling of the case. In August 2007, the District Court ruled on the Defendants' post-trial motions, rejecting the majority of those challenges, but granting Rule 29 judgments of acquittal for insufficient evidence on the following: (1) one false statement charge against Faubert and the Company, for the jury's failure to reach a verdict (Count 2); (2) one CWA charge against Davidson and the Company, concerning an alleged unlawful discharge of wastewater in September 1999 (Count 21); and (3) one CWA charge against Maury and the Company concerning an alleged unlawful discharge of wastewater in October 1999. The Court denied the Rule 29 motions as to all other counts of conviction.

    The District Court held sentencing hearings in April 2009. It sentenced Prisque to 70 months' imprisonment, Faubert to 41 months' imprisonment, Maury to 30 months' imprisonment, and Davidson to 6 months' imprisonment. As for the Company, the Court opted to apply the Alternative Fines Act (the AFA), 18 U.S.C. § 3571(c)(1), rather than the CWA and CAA, in imposing criminal penalties. Applying the AFA, the Court fined the Company the maximum penalty of $500,000 per violation on Count 1 (conspiracy), Counts 8-11 (obstruction), Counts 12-16 (CWA -- cement pit discharge), Counts 28-32 (CWA -- Number Four Pit discharge), and Count 34 (CAA) for a total fine of $8 million dollars. It also sentenced the Company to 4 years' probation, with a court-ordered monitor to ensure regulatory compliance going forward.

    The Defendants appealed the District Court's ruling in May 2009. The Appeals Court following a lengthy analysis said, "Having carefully considered the Defendants' various remaining arguments, we find them to be without merit. We therefore affirm the final convictions, judgments and sentences of the District Court, in all respects."

 

    Access the complete opinion (click here). [#Air, #Water, #Haz, #Toxics, #CA3]

 

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Textileather Corporation v. GenCorp Inc.

Sep 11: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3634. Appealed from the Northern District of Ohio at Toledo. Textileather Corporation, which purchased a vinyl manufacturing facility with hazardous waste management units (RCRA units) from GenCorp Inc., appeals from the district court's grant of summary judgment to GenCorp in this breach-of-contract and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) action. The Appeals Court affirmed in part, reversed in part and remanded the case to the district court for further proceedings consistent with its opinion.

 

    In 2001, Ohio EPA (OEPA) approved a closure plan submitted by Textileather. In its letter regarding the approved closure plan, OEPA noted that compliance with this approved plan was expected and would be monitored. Textileather appealed portions of the approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and reversed in part with instructions to OEPA to approve a plan consistent with its holding. OEPA has not yet issued a new plan. Throughout the course of the RCRA closure proceedings, including the negotiation of various plans and appeal of the approved plan, Textileather notified GenCorp that it believed, pursuant to the Asset Purchase Agreement (APA), GenCorp was obligated to indemnify and defend Textileather in these proceedings.

 

    Textileather brought the action to recover the costs it incurred in the RCRA closure proceedings. Textileather and GenCorp filed cross-motions for summary judgment, and the district court granted GenCorp's motion and denied Textileather's motion. In particular, the district court held the APA to be unambiguous and determined that, under the terms of the APA, OEPA did not constitute a "third party" and Textileather's RCRA closure proceedings with OEPA did not constitute a "claim or action."

    The Appeals Court ruled that, "OEPA was not a party to the APA, so it fairly falls under the common meaning of 'third person. . . we reverse the district court's decision granting summary judgment to GenCorp and instruct the district court to enter summary judgment in favor of Textileather on the legal question of whether the retained liabilities section applies. We remand this case to the district court for proceedings to determine the appropriate allocation of costs and damages under the terms of that provision. . . the district court properly concluded that the allocation and assumption of liability provisions apply to CERCLA claims as well. GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2."

    Access the complete opinion (click here). [#Haz, #Remed, #CA6]

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Pacific Coast Federation v. Blank (Commerce Dept.)

Sep 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17108. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that in 2011, the National Marine Fisheries Service (NMFS) and the Pacific Fishery Management Council (Pacific Council or Council) adopted changes to the fishery management plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the PacificCoast Groundfish Fishery Management Plan, are designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future decisionmaking.

 

    Plaintiffs-Appellants Pacific Coast Federation of Fishermen's Associations, et al. (plaintiffs) are a collection of primarily non-trawl fishermen's associations and groups whose longtime participation in the fishery may shrink under Amendments 20 and 21. They argue that the Amendments are unlawful under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which imposes procedural and substantive requirements for managing fisheries, and the National Environmental Policy Act (NEPA), which imposes purely procedural requirements for reviewing the potential environmental effects of proposed agency actions.

 

    The district court granted summary judgment to the defendants. The Appeals Court affirmed the district court decision and said, "NMFS complied with the MSA's provisions, which required the agency to consider fishing communities but did not require it to develop criteria for allocating fishing privileges to such communities or to restrict privileges to those who 'substantially participate' in

the fishery. NMFS also complied with NEPA by preparing a separate study for each amendment, analyzing a reasonable range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures designed, in part, to lessen the potential adverse effects of Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck between competing objectives, but they do not show that NMFS exceeded its statutory authority under the MSA or ignored its obligations under NEPA."

 

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

 

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