National Association of Home Builders v. San Joaquin Valley

Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17309. In this important case, in response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act.

 

    The district court held that Rule 9510 is not preempted and the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (Act), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley

Unified Air Pollution Control District (District), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an 'indirect source review program' under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control 'standard' for construction equipment that has not been approved by the Environmental Protection Agency (EPA)."

 

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Wild Fish Conservancy v. Salazar

Wild Fish Conservancy v. Salazar - Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35531. The Appeals Court explains that it is "faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species." It says the fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact. The legal action was brought by the Wild Fish Conservancy (the Conservancy), and centers on a biological opinion (BiOp) addressing the effects of the operations of the Leavenworth National Fish Hatchery (the Hatchery) on the bull trout. See U.S. Fish & Wildlife Service, Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter 2008 BiOp].

 

    The bull trout is listed under the Endangered Species Act (ESA), as threatened throughout its range. The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (the Service), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. In a split decision, the majority Appeals Court ruled that, "Because the Service in several respects failed to articulate a rational connection between the facts found and the 'no jeopardy' conclusion, we reverse and remand."

 

    The majority concluded, "We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "In sum, the Service provided a rational basis for its no jeopardy conclusion. To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action. I therefore disagree with my colleague's conclusion that the Service's analysis in the 2008 BiOp is irrational. For these reasons, I respectfully dissent from Parts II.A, II.B, II.E and III. of the majority opinion, but otherwise concur."

 

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Carijano v. Occidental Petroleum Corp.

Dec 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 and 08-56270. The Appeals Court explains that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (Occidental), along the Rio Corrientes in the northern region of Peru. Plaintiffs, 25 members of the Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, sued Occidental in Los Angeles County Superior Court for environmental contamination and release of hazardous waste.

 

    Although Occidental's headquarters is located in Los Angeles County, Occidental removed the suit to federal district court where it successfully moved for dismissal on the ground that Peru is a more convenient forum. The majority Appeals Court said that Plaintiffs timely appeal the dismissal of their suit. Occidental cross-appeals from the district court's determination that its Rule 12 motion to dismiss Amazon Watch for lack of standing is moot.

 

    Also, the Appeals Court rules, "Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."

 

    In the split decision, the majority Appeals Court concluded, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens [i.e.inappropriate forum] and deny Plaintiffs access to a U.S. court. . . Occidental failed to meet that burden, and a proper balance of all the relevant factors at this stage of proceedings clearly demonstrates that this lawsuit should proceed in the Central District of California. We therefore reverse the district court's dismissal on the basis of forum non conveniens. We need not reach Plaintiffs' argument that the district court abused its discretion in denying discovery before ruling on Occidental's motion. We remand this case to the district court to consider the question of Amazon Watch's standing, and for further proceedings consistent with this opinion."

 

    The dissenting Judge indicated in his concurring in part, dissenting in part opinion, "I agree that conditions on dismissal might be appropriate. However, I would not re-analyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. Creative Tech., Ltd. v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 699 (9th Cir. 1995). The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference."

 

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Center For Biological Diversity v. USDA

Dec 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17233. The United States Department of Agriculture (USDA) appealed the district court's grant of summary judgment in favor of the Center for Biological Diversity (CBD), which required USDA, under the Freedom of Information Act (FOIA), to disclose the GPS coordinates of wolf depredations to which it had responded. The district court held that the coordinates were not exempt from disclosure under FOIA Exemption 3 or Exemption 6.

 

    The Appeals Court reversed the district court ruling and said, "Exemption 3 applies because Section 8791 of the Food, Conservation, and Energy Act of 2008 (FCEA) exempts from disclosure such geospatial data and applies to this case even though it took effect after the USDA withheld the coordinates." The Appeals Court said further that, "In light of this conclusion, we do not reach the question of whether Exemption 6 also applies."

 

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Humane Society Of The United States v. Locke

Nov 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-36038, appealed from the District of Oregon. The Appeals Court explains that in March 2008, the National Marine Fisheries Service

(NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows "the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks" that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. § 1389(b)(1).The Appeals Court said, "We must decide whether the agency's action was 'arbitrary' or 'capricious' within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.

 

    Following its analysis, the Appeals Court ruled, "We affirm summary judgment in favor of defendants on plaintiffs' NEPA claim. We reverse summary judgment on plaintiffs' MMPA claim and remand to the district court with instructions to vacate the decision of NMFS and remand to NMFS. We vacate the district court's order granting defendants' motion to strike. Each party shall bear its own costs on appeal."

 

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Loye v. County of Dakota

Nov 17: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3277. The Appeals Court explains the background of the case as follows: On the afternoon of September 6, 2004, boys stole two bottles of mercury from an abandoned building, took this hazardous substance to a playground near the Rosemount Woods mobile home park, and released it while playing. Before police from the City of Rosemount, Minnesota were notified and arrived at the scene, people, homes, and vehicles were contaminated. Police officers knocked on doors to identify those who had been exposed, and the City contacted state and local agencies to help deal with the environmental and public health emergency. The Special Operations Team (SOT), a disaster response unit created by an agreement between Dakota County and eleven cities including Rosemount, arrived at about 9:00 p.m. and set up a decontamination tent.

 

    Shortly after 11:00 p.m., the SOT began decontaminating forty-nine persons who had been exposed to mercury, including plaintiff and others, who are deaf. The next day, nurses from the Dakota County Department of Public Health began attending to the victims' health, housing, and financial needs. The victims were provided temporary housing while their quarantined homes were decontaminated. By the end of the month, the health and environmental hazards were successfully abated.

One year later, plaintiffs filed a discrimination suit saying defendants "failed to provide ASL [American Sign Language] interpreters . . . for all of the services they were providing to the public."

 

    At the close of discovery, the district court granted Dakota County's motion for summary judgment, concluding that Plaintiffs received "effective communication, and therefore meaningful access to the programs and services offered during three relevant periods: (1) the emergency decontamination process; (2) public group meetings between victims and representatives of various government agencies conducted the following week; and (3) additional private meetings between Dakota County Public Health Nurse Gerilee Greeley and individual plaintiffs."

 

    The Appeals Court affirmed the district court decision and said in part, " . . . as we have explained, the legal standard is effective communication that results in meaningful access to government services. There is no evidence that Plaintiffs failed to obtain any service because Nurse Greeley's advice or assistance was not understood, and no evidence Nurse Greeley ignored a specific request for more effective communication or refused a specific request for an ASL interpreter. . ."

 

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Energysolutions, LLC. v. State of Utah

Nov 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-4122, 23, & 24. The issue in this case is whether the Northwest Interstate Compact on Low-Level Radioactive Waste allows its member states to exclude low-level radioactive waste from disposal at a Utah site. EnergySolutions is the owner and operator of a facility for the disposal of low-level radioactive waste located in Clive, Utah. Utah is a member state of the Northwest Compact, and required EnergySolutions to obtain permission pursuant to the Compact for the importation and disposal of low-level waste from a decommissioned reactor in Italy.

 

    The member states, including Utah, voted to deny this approval, based on exclusionary authority it claimed through the Federal statute approving the terms of the Compact. EnergySolutions contends the Clive Facility should not be subject to the authority of the Northwest Compact. It claims the Compact has limited authority only over regional disposal facilities, which does not include the Clive Facility. The district court concluded the Northwest Compact does not regulate the disposal of waste at the Clive Facility.

 

    The Appeals Court disagreed and said, "The terms of the Compact control in this situation, and the member states were within the bounds of their authority when they denied permission regarding this waste." In its conclusion the appeals Court ruled, "

Like the Supreme Court, we are hesitant to 'order relief inconsistent with the express terms of a compact.' Alabama, 130 S. Ct. at 2313 (quoting New Jersey v. New York, 523 U.S. 767, 811 (1998)) (internal punctuation omitted). Concluding the Northwest Compact is statutorily and constitutionally permitted to exercise exclusionary authority over the Clive Facility, we reverse and remand for proceedings consistent with this opinion."

 

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