Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-16441. A number of parties including The Humane Society of the United States (collectively “Levine”) appealed from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (Secretary or USDA). The case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the “Humane Methods of Slaughter Act of 1958 (HMSA).” In particular, the parties dispute whether poultry should be considered “other livestock” as that phrase is used in that statute.
Levine challenged USDA’s enunciation of its position -- made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service [see Treatment of Live Poultry before Slaughter, 70 FR 56,624, 9/28/05] -- that “there is no specific federal humane handling and slaughter statute for poultry.” In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal. 2008), the United States District Court for the Northern District of California (district court) determined that, while the plain meaning of the word “livestock” as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA.
The Appeals Court said, "Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action." Further, the Appeals Court concluded, "Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss."
Access the complete opinion (click here).
Tuesday, November 24, 2009
Thursday, November 12, 2009
National Parks & Conservation Association v. BLM
Nov 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56814, 05-56815, 05-56843, 05-56832, and 05-56908. Kaiser Eagle Mountain, Inc. (Kaiser) seeks to build a landfill on a former Kaiser mining site near Joshua Tree National Park (Joshua Tree). As part of its landfill development plan, Kaiser sought to exchange certain private lands for several parcels of land surrounding the mine site and owned by the Bureau of Land Managment (BLM). Several parties, including the National Parks Conservation Association (Conservation Association) and Donna and Laurence Charpied (the Charpieds), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the Interior Board of Land Appeals (Appeals Board).
The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.
In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."
And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.
". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."
Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.
"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."
Access the complete opinion (click here).
The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.
In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."
And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.
". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."
Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.
"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."
Access the complete opinion (click here).
U.S. v. Albert Investment Co.
Nov 10: In the U.S. Court of Appeals, Tenth Circuit, Chase No. 08-6267. Union Pacific Railroad Co. (Union Pacific) appealed from the district court’s denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Appeals Court ruled, "Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand."
The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."
In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."
Access the complete opinion (click here).
The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."
In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."
Access the complete opinion (click here).
Monday, November 9, 2009
Friends Of Tims Ford v. TVA
Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.
The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."
Access the complete opinion (click here).
The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."
Access the complete opinion (click here).
Friday, October 30, 2009
California Energy Commission v. Department of Energy
Oct 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71576. The California Energy Commission (CEC) petitions for review of an order of the U.S. Department of Energy (DOE) denying CEC’s request for a waiver of preemption under the Energy Policy and Conservation Act (EPCA). The CEC sought the waiver in order to establish water efficiency standards for residential clothes washers, as set forth in its state regulations. To obtain such a waiver, CEC was required to show by a preponderance of the evidence that the state regulation was “needed to meet unusual and compelling State or local . . . water interests.”
DOE rejected the CEC’s petition for three separate reasons, but asserts that “each [of the reasons] flowed from CEC’s failure to provide adequate information to DOE to allow the federal agency to make an informed decision.” The DOE also challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit.
The Appeals Court said, "We hold that this court has jurisdiction under the EPCA. Because the DOE’s stated justifications demonstrate an arbitrary and capricious failure meaningfully to address the CEC’s application for a waiver, we reverse the
DOE’s ruling and remand for further proceedings."
The Appeals Court ruled further, "The CEC has requested that this Court order the DOE to grant the CEC’s waiver petition. However, this Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the CEC might have supplied the DOE with sufficient information to do so. . . Considering the significant number of
issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record. We reverse the challenged order of the DOE and remand for further proceedings consistent with this opinion."
Access the complete opinion (click here).
DOE rejected the CEC’s petition for three separate reasons, but asserts that “each [of the reasons] flowed from CEC’s failure to provide adequate information to DOE to allow the federal agency to make an informed decision.” The DOE also challenged the court’s jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit.
The Appeals Court said, "We hold that this court has jurisdiction under the EPCA. Because the DOE’s stated justifications demonstrate an arbitrary and capricious failure meaningfully to address the CEC’s application for a waiver, we reverse the
DOE’s ruling and remand for further proceedings."
The Appeals Court ruled further, "The CEC has requested that this Court order the DOE to grant the CEC’s waiver petition. However, this Court’s appropriate role is not to engage in the underlying analysis to determine whether the statutory criteria are met, even if the CEC might have supplied the DOE with sufficient information to do so. . . Considering the significant number of
issues left for resolution, many of which require factual findings in the DOE’s area of expertise, we decline to order a waiver on the present record. We reverse the challenged order of the DOE and remand for further proceedings consistent with this opinion."
Access the complete opinion (click here).
Thursday, October 29, 2009
Nkihtaqmikon v. Imson
Oct 28: In the U.S Court of Appeals, First Circuit, Case No. 08-2122. The appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon (NN) -- the phrase means "We Protect the Homeland," -- to challenge a Bureau of Indian Affairs (BIA) decision which approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (LNG) facility, contingent on Federal regulatory approval being obtained from the Federal Energy Regulatory Commission (FERC).
Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.
As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."
The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."
Access the complete opinion (click here).
Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.
As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."
The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."
Access the complete opinion (click here).
Monday, October 26, 2009
Rhode Island Fishermen's Alliance v. Rhode Island DEM
Oct 23: In the U.S. Court of Appeals, First Circuit, Case No. 08-2390. The case involves regulations which imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the Rhode Island Department of Environmental Management (DEM's) alleged use of "retroactive control dates" in composing the regulatory scheme.
According to the Appeals Court, "This appeal brings us face to face with two exotic creatures: the American lobster and a state-law claim that may or may not contain an embedded federal question sufficient to ground a claim of original jurisdiction under 28 U.S.C. § 1331 (commonly known as "federal question" jurisdiction). Cases of this sort require courts to venture into a murky jurisprudence. The answers are rarely black or white but, rather, more often doused in varying shades of gray. The difficult jurisdictional question presented here is no exception."
The underlying case began as a state-court challenge to regulations promulgated by the DEM. Those regulations imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the DEM's alleged use of retroactive control dates in composing the regulatory scheme. The Court explains that a "control date" is "a cut off date for potential use in establishing eligibility criteria for future access to a fishery." Neither the relevant statute nor the challenged regulation, however, defines the term "retroactive control date." The plaintiffs aver that the DEM employed "retroactive control dates" by limiting, in 2006, fishermen's future access to fishing resources based on each fisherman's documented catch during 2001-2003.
The DEM thought that it was obliged to adopt the retroactive control dates by federal law. Accordingly, it removed the case to the federal district court. The plaintiffs moved to remand, but the district court refused to relinquish jurisdiction. The court subsequently granted summary judgment in favor of the defendants. The Appeals Court said, "After careful consideration of the plaintiffs' ensuing appeal, we agree that the district court appropriately exercised federal question jurisdiction over the case." Accordingly, the Appeals Court affirmed both the district court's denial of the plaintiffs' motion to remand and its grant of summary judgment in favor of the defendants.
Access the complete opinion (click here).
According to the Appeals Court, "This appeal brings us face to face with two exotic creatures: the American lobster and a state-law claim that may or may not contain an embedded federal question sufficient to ground a claim of original jurisdiction under 28 U.S.C. § 1331 (commonly known as "federal question" jurisdiction). Cases of this sort require courts to venture into a murky jurisprudence. The answers are rarely black or white but, rather, more often doused in varying shades of gray. The difficult jurisdictional question presented here is no exception."
The underlying case began as a state-court challenge to regulations promulgated by the DEM. Those regulations imposed restrictions on lobster-trap allocations for Rhode Island waters. The challenge to them centers on the DEM's alleged use of retroactive control dates in composing the regulatory scheme. The Court explains that a "control date" is "a cut off date for potential use in establishing eligibility criteria for future access to a fishery." Neither the relevant statute nor the challenged regulation, however, defines the term "retroactive control date." The plaintiffs aver that the DEM employed "retroactive control dates" by limiting, in 2006, fishermen's future access to fishing resources based on each fisherman's documented catch during 2001-2003.
The DEM thought that it was obliged to adopt the retroactive control dates by federal law. Accordingly, it removed the case to the federal district court. The plaintiffs moved to remand, but the district court refused to relinquish jurisdiction. The court subsequently granted summary judgment in favor of the defendants. The Appeals Court said, "After careful consideration of the plaintiffs' ensuing appeal, we agree that the district court appropriately exercised federal question jurisdiction over the case." Accordingly, the Appeals Court affirmed both the district court's denial of the plaintiffs' motion to remand and its grant of summary judgment in favor of the defendants.
Access the complete opinion (click here).
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