Jan 2: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. Case No: 06-3454, 06-3461 and 06-3469. Royal Indemnity Company brought the action pursuant to 28 U.S.C. §§ 2201 and 2202, to seek a declaration of the rights and obligations of Royal Indemnity Company, various other insurance companies and Apex Oil Company, Inc. (Apex), under certain insurance policies Royal Indemnity Company and the other insurance companies issued to Apex. The Appeals Court affirmed the district court’s decision to abstain, but vacated the dismissal order and remanded the case so that the court can instead enter an order staying the proceedings.
Between May 2003 and April 2005, the State of Illinois, the United States, and a group of individuals filed five separate lawsuits (the underlying suits) against Apex in state and federal courts in Illinois based on the actions of Apex and its predecessor companies in releasing contaminants into the soil surrounding its oil refinery in Hartford, Illinois. Royal Indemnity Company defended Apex on the majority of the underlying suits. On August 5, 2005, Apex brought suit against multiple insurers in the Circuit Court of Madison County, Illinois (the Illinois lawsuit), seeking a declaration of the parties’ rights and responsibilities with respect to the Hartford soil contamination under policies the insurance companies had issued to Apex.
On March 22, 2006, Royal Indemnity Company initiated the lawsuit by filing a complaint in Federal court pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, “seeking adjudication of the parties’ rights and obligations under certain insurance policies.” In its complaint, Royal Indemnity Company also sought a declaration of the rights and responsibilities of the parties based on claims of equitable contribution, subrogation, unjust enrichment and/or equitable estoppel for the costs Royal Indemnity Company incurred in defending Apex as well as attorneys’ fees, costs and interest.
Royal argues that the district court erred in applying the Wilton and Brillhart abstention doctrine and instead should have applied the “exceptional circumstances” test articulated in Colorado River. The Eighth Circuit said, "However, unlike Colorado River, this lawsuit involves a declaratory judgment action. Apex, therefore, claims that the district court correctly relied upon Wilton and Brillhart to govern its abstention analysis." Royal also argued that the Ninth Circuit’s decisions in Government Employees Insurance Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998) (en banc), and United National Insurance Co. v. R & D Latex Corp., 242 F.3d 1102 (9th Cir. 2001), support its claims that Wilton and Brillhart do not apply here. However, the Appeal Court said, "...not only are these cases not binding precedent for us, they are easily distinguishable..."
Access the complete opinion (click here).
Thursday, January 3, 2008
Wednesday, January 2, 2008
Center for Biological Diversity v. Lohn
Dec 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-35638. The Apepals Court Order indicates that, "The petition for panel rehearing is granted. The opinion filed on April 26, 2007, and appearing at 483 F.3d 984 (9th Cir. 2007) is withdrawn. The superseding opinion will be filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed." In its opinion, the Appeals Court indicates that it is asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid.
The Center for Biological Diversity (Center), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale (Southern Resident) as an endangered species under the Endangered Species Act (ESA). Applying its Distinct Population Segment Policy (DPS Policy) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon.
The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” However, the district court set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. The district court ordered the Service to reexamine according to the declared legal standard whether the Southern Resident should be listed as an endangered species and to issue a new finding within twelve months.
Pursuant to the district court’s order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a "threatened" species. The Center then appealed from the district court’s judgment, arguing that the Service’s DPS Policy is not entitled to deference under Chevron and that the policy is unlawfully restrictive. Subsequently, the Service issued a final rule listing the Southern Resident as an "endangered" (as opposed to "threatened") species. The Service contends that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. The Center asks the Appeals Court to declare the Service’s DPS Policy unlawful and to “instruct [the Service] not to apply the DPS Policy in making a final determination on the agency’s decision to finalize the proposed rule to list the Southern Resident killer whale.”
The Appeals Court ruled, "The Service’s issuance of a final rule listing the Southern Resident as an endangered species renders this case moot. Accordingly, we vacate the portion of the district court’s order from which the Center has appealed... (noting that we will only vacate a judgment of a district court if it is appealed to this court). We dismisss this appeal as moot and remand the case to the district court with instructions to vacate its grant of summary judgment in favor of the Service."
Access the complete opinion (click here).
The Center for Biological Diversity (Center), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale (Southern Resident) as an endangered species under the Endangered Species Act (ESA). Applying its Distinct Population Segment Policy (DPS Policy) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon.
The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” However, the district court set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. The district court ordered the Service to reexamine according to the declared legal standard whether the Southern Resident should be listed as an endangered species and to issue a new finding within twelve months.
Pursuant to the district court’s order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a "threatened" species. The Center then appealed from the district court’s judgment, arguing that the Service’s DPS Policy is not entitled to deference under Chevron and that the policy is unlawfully restrictive. Subsequently, the Service issued a final rule listing the Southern Resident as an "endangered" (as opposed to "threatened") species. The Service contends that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. The Center asks the Appeals Court to declare the Service’s DPS Policy unlawful and to “instruct [the Service] not to apply the DPS Policy in making a final determination on the agency’s decision to finalize the proposed rule to list the Southern Resident killer whale.”
The Appeals Court ruled, "The Service’s issuance of a final rule listing the Southern Resident as an endangered species renders this case moot. Accordingly, we vacate the portion of the district court’s order from which the Center has appealed... (noting that we will only vacate a judgment of a district court if it is appealed to this court). We dismisss this appeal as moot and remand the case to the district court with instructions to vacate its grant of summary judgment in favor of the Service."
Access the complete opinion (click here).
Thursday, December 20, 2007
Ohio River Valley v. Green Valley Coal Co.
Dec 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1475. Green Valley Coal Company (Green Valley) appealed the award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act (SMCRA or the Act). Initially, three environmental organizations, Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively, OVEC), sued the Director of the West Virginia Division of Environmental Protection (the state agency) to mandate changes in the way the agency enforces its regulatory program under SMCRA.
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
Access the complete opinion (click here).
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
Access the complete opinion (click here).
Fishing Co AK vs. Gutierrez, Carlos
Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5153. In April 2006, the Secretary of Commerce, Carlos Gutierrez (Secretary), via his delegee the National Marine Fisheries Service (Service), issued a final rule establishing a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fishing region [71 FR 17,362 4/6/06]. In issuing the rule, the Service exercised authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.
Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.
Access the complete opinion (click here).
The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.
Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.
Access the complete opinion (click here).
Center For Native Ecosystems v. Cables
Dec 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 06-1130. The Center for Native Ecosystems, the Biodiversity Conservation Alliance, and the Forest Guardians (collectively CNE) appeal the district court’s order denying a petition for review of the United States Forest Service’s authorization of livestock grazing in Medicine Bow National Forest. CNE first contends that the Forest Service violated § 7(a)(2) of the Endangered Species Act, because (1) its consultation with the United States Fish and Wildlife Service (FWS) after the designation of portions of the forest as critical habitat for the Preble’s meadow jumping mouse (Preble’s mouse) failed to consider how grazing in the mouse’s critical habitat would affect its recovery, and (2) it must reinitiate consultation with the FWS regarding the effects of grazing on the mouse itself because grazing has exceeded previously established limits. CNE also contends that the Forest Service has violated § 313(a) of the Clean Water Act because it has not complied with Wyoming water-quality requirements “in the same manner, and to the same extent as any nongovernmental entity,” 33 U.S.C. § 1323(a).
The Pole Mountain Cattlemen’s Association, the Wyoming Stock Growers Association, the Wyoming Farm Bureau Federation, and the Laramie County Farmers Union (collectively the Cattlemen’s Association), along with the Wyoming Association of Conservation Districts, intervened in the district-court proceeding as defendants in support of the Forest Service’s actions. The State of Wyoming, the Pacific Legal Foundation, and the National Association of Home Builders in conjunction with the American Forest and Paper Association have filed amicus briefs supporting various aspects of the Forest Service’s actions. The Appeals Court affirmed the district court’s decision. One of the justices issued a separate but concurring opinion.
Access the complete opinion (click here).
The Pole Mountain Cattlemen’s Association, the Wyoming Stock Growers Association, the Wyoming Farm Bureau Federation, and the Laramie County Farmers Union (collectively the Cattlemen’s Association), along with the Wyoming Association of Conservation Districts, intervened in the district-court proceeding as defendants in support of the Forest Service’s actions. The State of Wyoming, the Pacific Legal Foundation, and the National Association of Home Builders in conjunction with the American Forest and Paper Association have filed amicus briefs supporting various aspects of the Forest Service’s actions. The Appeals Court affirmed the district court’s decision. One of the justices issued a separate but concurring opinion.
Access the complete opinion (click here).
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