Jul 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1165. Plaintiffs Wilderness Workshop, High Country Citizens’ Alliance, Western Colorado Congress, Western Slope Environmental Resource Council, Center for Biological Diversity, and Board of County Commissioners for Pitkin County (Colorado) filed suit challenging a decision by defendants, the U.S. Bureau of Land Management (BLM) and the United States Forest Service (Forest Service), authorizing defendant/intervenor SG Interests I, Ltd. (SG) to construct, operate, and maintain a natural gas pipeline through roadless national forest land. In connection with their suit, plaintiffs sought and were denied a preliminary injunction by the district court. Plaintiffs then filed an interlocutory appeal from the district court’s order denying their motion for preliminary injunction. The Appeals Court affirmed the decision of the district court in denying the preliminary injunction and granted the motions of the Colorado Oil and Gas Association, the Congress of Racial Equality, and Harold Shepherd to file amicus curiae briefs in the case.
In denying the preliminary injunction the Appeals Court said the plaintiffs only met one prong of a three prong test -- they "produced evidence that they will suffer some imminent and irreparable injuries if the pipeline construction begins;” however, the threatened injury to plaintiffs was equally balanced “against the weight of the public interest in gas production, and [SG’s] demonstrated economic interests;" and as the district court concluded the public interest factor did not weigh heavily in favor of either the plaintiffs or the defendants and [SG].
Access the complete opinion (click here). [*Land, *Energy]
Friday, July 11, 2008
Tuesday, July 8, 2008
American Wildlands v. Dirk Kempthorne (Interior Dept.)
Jul 8: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5179. As explained by the Appeals Court, the westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family -- a phenomenon called hybridization -- has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act (ESA).
On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the Agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case.
The D.C. Circuit said, "Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record." The Appeals Court concluded, "Because American Wildlands has not shown that the Service’s decision to deny listing the westslope cutthroat trout as a threatened species was arbitrary or capricious, and because plaintiffs have not shown that the district court abused its discretion in denying the motion to supplement the record, we affirm the district court in all respects."
Access the complete opinion (click here).
On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the Agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case.
The D.C. Circuit said, "Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record." The Appeals Court concluded, "Because American Wildlands has not shown that the Service’s decision to deny listing the westslope cutthroat trout as a threatened species was arbitrary or capricious, and because plaintiffs have not shown that the district court abused its discretion in denying the motion to supplement the record, we affirm the district court in all respects."
Access the complete opinion (click here).
Monday, July 7, 2008
The Lands Council v. McNair (U.S. Forest Service)
Jul 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35000. The full panel of the Ninth Circuit (en banc) indicated that, "We took this case en banc to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service." The Lands Council and Wild West Institute (collectively, Lands Council) moved for a preliminary injunction to halt the Mission Brush Project (the Project), which called for the selective logging of 3,829 acres of forest in the Idaho Panhandle National Forest (IPNF) claiming the Government had failed to comply with the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), in developing and implementing the Project. The district court denied Lands Council’s motion for a preliminary injunction. A three-judge panel of the Ninth Circuit reversed the district court’s decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007) [See WIMS 7/3/07]. The en banc Appeals Court vacated the 3-panel decision and affirmed the district court.
Unlike the 3-panel ruling which said the Lands Council ". . . demonstrated a probability of success on the merits and a possibility of irreparable injury [and] . . . further showed that the balance of hardships and the public interest favored granting the preliminary injunction. . ."; the en banc panel concluded, ". . . that Lands Council was not likely to succeed on any of its claims under the NFMA or NEPA. We also conclude that Lands Council has not shown that, if we allow the Forest Service to proceed with the Mission Brush Project, the balance of hardships tips sharply in its favor."
Access the en banc opinion (click here). Access the 3-panel opinion (click here).
Unlike the 3-panel ruling which said the Lands Council ". . . demonstrated a probability of success on the merits and a possibility of irreparable injury [and] . . . further showed that the balance of hardships and the public interest favored granting the preliminary injunction. . ."; the en banc panel concluded, ". . . that Lands Council was not likely to succeed on any of its claims under the NFMA or NEPA. We also conclude that Lands Council has not shown that, if we allow the Forest Service to proceed with the Mission Brush Project, the balance of hardships tips sharply in its favor."
Access the en banc opinion (click here). Access the 3-panel opinion (click here).
Followell v. United States
Jul 3: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3017. Cheryl Followell, as executrix, brought the action on behalf of the estate of her deceased mother, Betty Gurley. Followell and Gurley Refining Company (GRC) appealed an order of the district court dismissing this action for failure to state a claim and the Appeals Court affirmed.
The Appeals Court cited the district court in saying that the dispute between Plaintiffs and U.S. EPA (EPA) has had, "a long and tortuous history" reaching back more than twenty years when the EPA filed a civil action in 1987 alleging Plaintiffs violated the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). During the course of the CERCLA litigation, William Gurley fraudulently transferred roughly $17 million in assets to Betty Gurley. After judgment was entered against him, he declared bankruptcy. The Appeals Court said, "For over a decade, William Gurley, Betty Gurley, and GRC have engaged in 'vexatious litigation' to prevent the EPA from collecting the debt." The Appeals Court said in a brief 3-page opinion, "the district court's conclusion res judicata precludes Plaintiffs' 'relitigation of a claim on grounds that were raised or could have been raised in the prior action.'"
Access the complete opinion (click here).
The Appeals Court cited the district court in saying that the dispute between Plaintiffs and U.S. EPA (EPA) has had, "a long and tortuous history" reaching back more than twenty years when the EPA filed a civil action in 1987 alleging Plaintiffs violated the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA). During the course of the CERCLA litigation, William Gurley fraudulently transferred roughly $17 million in assets to Betty Gurley. After judgment was entered against him, he declared bankruptcy. The Appeals Court said, "For over a decade, William Gurley, Betty Gurley, and GRC have engaged in 'vexatious litigation' to prevent the EPA from collecting the debt." The Appeals Court said in a brief 3-page opinion, "the district court's conclusion res judicata precludes Plaintiffs' 'relitigation of a claim on grounds that were raised or could have been raised in the prior action.'"
Access the complete opinion (click here).
Monday, June 30, 2008
U.S. v. Vasquez-Ramos
Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-50553, 06-50694. As explained by the Appeals Court, Mario Manuel Vasquez-Ramos and Luis Manuel Rodriguez-Martinez (Defendants) were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), and the Migratory Bird Treaty Act (MBTA. They moved to dismiss the information claiming that prosecuting their possession of the feathers and talons violated the Religious Freedom Restoration Act (RFRA).
The Appeals Court said, "In United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003), under nearly identical facts, we held that there was no RFRA violation. Antoine remains binding law in our circuit, and we affirm the district court’s order denying Defendants’ motion to dismiss."
Defendants claim to have received the feathers during Native American religious ceremonies and to have used them for religious worship. Defendants did not have and could not obtain permits to possess the parts and feathers because they are not members of federally-recognized Indian tribes.
The Appeals Court concluded, "In Antoine we held that individuals like Defendants who are not members of federally-recognized tribes did not have valid claims that their prosecutions under BGEPA violate RFRA. 318 F.3d at 924. Neither removal of bald eagles from the Endangered or Threatened Species List, the Supreme Court’s decision in O Centro Espirita, nor the government’s eagle recovery methods undermine this holding. The district court correctly denied Defendants’ motion to dismiss the information in reliance on the continued viability of Antoine."
Access the complete opinion (click here).
The Appeals Court said, "In United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003), under nearly identical facts, we held that there was no RFRA violation. Antoine remains binding law in our circuit, and we affirm the district court’s order denying Defendants’ motion to dismiss."
Defendants claim to have received the feathers during Native American religious ceremonies and to have used them for religious worship. Defendants did not have and could not obtain permits to possess the parts and feathers because they are not members of federally-recognized Indian tribes.
The Appeals Court concluded, "In Antoine we held that individuals like Defendants who are not members of federally-recognized tribes did not have valid claims that their prosecutions under BGEPA violate RFRA. 318 F.3d at 924. Neither removal of bald eagles from the Endangered or Threatened Species List, the Supreme Court’s decision in O Centro Espirita, nor the government’s eagle recovery methods undermine this holding. The district court correctly denied Defendants’ motion to dismiss the information in reliance on the continued viability of Antoine."
Access the complete opinion (click here).
USA v. FMC Corporation
Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35429. As explained by the Appeals Court, in the late 1990s, Plaintiff United States and Intervenor Shoshone-Bannock Tribes (the Tribes) approached Defendant FMC Corporation, a mining company operating in Idaho, about potential violations of Federal and tribal environmental laws. FMC reached an agreement with each party. FMC agreed to pay the Tribes $1.5 million per year in lieu of applying for certain tribal permits. Concerning federal law, FMC and the United States entered into a detailed agreement (Consent Decree), which they presented to the federal district court for approval. The district court approved the Consent Decree, and the Ninth Circuit affirmed. United States v. Shoshone-Bannock Tribes (FMC Corp.), 229 F.3d 1161 (9th Cir. 2000) (unpublished disposition).
In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the Consent Decree in district court. The district court held that the Tribes could enforce the Consent Decree as third party beneficiaries and that the Consent Decree required FMC to apply for tribal permits. FMC appealed.
The Ninth Circuit determined that the Tribes lacked standing to enforce the Consent Decree and, therefore, vacated the district court’s orders and remanded the case with instructions to dismiss the action.
In a closing note the Appeals Court said, ". . .during the pendency of this appeal, FMC began the process of applying for tribal permits, which is the main relief that the Tribes have sought in this action. At oral argument, the Tribes expressed their concern that, if we were to hold that the Tribes lack standing to enforce the Consent Decree, FMC would withdraw its permit applications and undo the progress made to date on the proper resolution of this dispute. In response to questioning from the panel, FMC’s lawyer represented to the court that FMC understands that it has the obligation to continue, and will continue, with the current tribal proceedings to their conclusion. We accept that statement from counsel as binding on FMC."
Access the complete opinion (click here).
In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the Consent Decree in district court. The district court held that the Tribes could enforce the Consent Decree as third party beneficiaries and that the Consent Decree required FMC to apply for tribal permits. FMC appealed.
The Ninth Circuit determined that the Tribes lacked standing to enforce the Consent Decree and, therefore, vacated the district court’s orders and remanded the case with instructions to dismiss the action.
In a closing note the Appeals Court said, ". . .during the pendency of this appeal, FMC began the process of applying for tribal permits, which is the main relief that the Tribes have sought in this action. At oral argument, the Tribes expressed their concern that, if we were to hold that the Tribes lack standing to enforce the Consent Decree, FMC would withdraw its permit applications and undo the progress made to date on the proper resolution of this dispute. In response to questioning from the panel, FMC’s lawyer represented to the court that FMC understands that it has the obligation to continue, and will continue, with the current tribal proceedings to their conclusion. We accept that statement from counsel as binding on FMC."
Access the complete opinion (click here).
Friday, June 27, 2008
Coos County Board of County Commissioners v. Kempthorne
Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35634. In summary form, the Appeals Court says, "We are asked to decide whether the Fish and Wildlife Service (FWS) has an enforceable duty promptly to withdraw a threatened species from the protections of the Endangered Species Act (the ESA or the Act), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty."
The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. The murrelets living in Washington, Oregon, and California (the tri-state murrelets) are the protected population.
The tri-state murrelets, and only the tri-state murrelets, were listed under the ESA as a “threatened species,” after the detailed consideration required by the statute. The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, but determined that they nonetheless remained threatened.
Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for “promptly publishing” proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. The Ninth Circuit disagreed.
In a 40-page opinion, the Appeals Court concludes, "In sum, our view of Coos County’s suit resembles that of the court in Wyoming v. U.S. Dep’t of the Interior, which also considered an attempt to avoid the petition process through an effort to establish a “mandatory duty to delist” by other means. We are “at a loss to explain the actions of [Coos County].” It could easily have filed a delisting petition -- years ago. 'This action, if it had been taken, would have forced the Federal Defendants to make choices under hard deadlines set by Congress . . . . and much of the Federal Defendants’ arguments presented here would have melted away, allowing this Court to reach the merits of many of [Coos County’s] claims.' If Coos County wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it."
Access the complete opinion (click here).
The suit rests on the results of a FWS species status review of the marbled murrelet, a rare seabird that nests in mature and old-growth forests. The murrelets living in Washington, Oregon, and California (the tri-state murrelets) are the protected population.
The tri-state murrelets, and only the tri-state murrelets, were listed under the ESA as a “threatened species,” after the detailed consideration required by the statute. The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, but determined that they nonetheless remained threatened.
Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review. Seizing on a statutory deadline for “promptly publishing” proposed regulations in response to a citizen petition so warranting, Coos County argues that FWS had such a duty here and must follow the same deadline, even though no petition has been filed. The Ninth Circuit disagreed.
In a 40-page opinion, the Appeals Court concludes, "In sum, our view of Coos County’s suit resembles that of the court in Wyoming v. U.S. Dep’t of the Interior, which also considered an attempt to avoid the petition process through an effort to establish a “mandatory duty to delist” by other means. We are “at a loss to explain the actions of [Coos County].” It could easily have filed a delisting petition -- years ago. 'This action, if it had been taken, would have forced the Federal Defendants to make choices under hard deadlines set by Congress . . . . and much of the Federal Defendants’ arguments presented here would have melted away, allowing this Court to reach the merits of many of [Coos County’s] claims.' If Coos County wishes to force FWS to act swiftly on delisting the tri-state murrelets, the petition process is open to it."
Access the complete opinion (click here).
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