Jensen Family Farms, Inc. v. Monterey Bay Air Pollution District

May 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16790. Appealed from the United States District Court for the Northern District of California. In 2007, the Monterey Bay Unified Air Pollution Control District (District) adopted and began enforcing rules that regulate diesel-powered engines. In particular, the District's regulatory regime: (1) requires owners and operators to register and pay fees for certain diesel engines used in agricultural operations, and (2) sets emissions standards for stationary diesel engines within the District. The principal question in the case -- among other questions -- is whether the District's rules are preempted by the Federal Clean Air Act (CAA), 42 U.S.C. §§ 7401 et seq. The Appeals Court said, "We hold that the District rules are not preempted, and affirm the district court's judgment on the pleadings in favor of the defendants.

 

    Explaining further its decision, the Appeals Court said, "Jensen advances two theories of 'state preemption' of Rules 220 and 310. Jensen first argues that 'insofar as [Rules 220 and 310] were issued pursuant to Cal. Code Regs. tit. 17, § 93116, they are preempted.' Because Rules 220 and 310 were issued pursuant to Cal. Health and Safety Code §§ 39656, 39659 and 39666, not Cal. Code Regs. tit. 17, § 93116, there is no basis for Jensen's claim that § 93116 'preempts' Rules 220 and 310. Jensen also argues that Rules 220 and 310 are preempted by Cal. Code Regs. tit. 13, § 2450 et seq. which creates California's 'Portable Equipment Registration Program.' These regulations 'preempt districts from permitting, registering, or regulating portable engines and equipment units . . . except in the circumstances specified in the regulations.' Id. Registration is voluntary and '[i]n the event that the owner of an engine or equipment unit elects not to register under this program, the engine or equipment unit shall be subject to district permitting requirements. . . .' Id. at § 2451(d). Because Jensen has not alleged that it participated in this voluntary program, the Rules are not preempted as applied to Jensen."

 

    Access the complete opinion (click here). [*Land]

Sierra Forest Legacy v. Sherman

May 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17796 & 10-15026. Appealed from the United States District Court for the Eastern District of California. This high visibility, multiple party case concerns whether the process of establishing management guidelines governing 11.5 million acres of Federal land in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act (NEPA) and the substantive restrictions of the National Forest Management Act (NFMA). Environmental groups -- Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively Sierra Forest) -- appeal a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment (the 2004 Framework) and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California also appeals a summary judgment against it and a limited remedial order in a related NEPA action.

 

    The district court found that the U.S. Forest Service and related federal defendants (collectively the Forest Service) violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement (SEIS) to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim.

 

    Sierra Forest and California argue that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately contends that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argues that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife. Sierra Forest further argues that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirement. Both Sierra Forest and California also contend that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contest these assertions and assert several procedural bars to relief.

 

    In this partially split, fragmented decision a majority Appeals Court affirms the district court's decision on the merits of Sierra Forest and California's NEPA claim. The majority said, "Specifically, we hold that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, we hold that the Forest Service did not violate NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. And we hold that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. We vacate, however, the district court's orders granting a limited remedy and remand for reconsideration of the equities of a 'substantive' injunction without giving undue deference to government experts."

 

    However, as the Appeals Court notes, "There are thus four separate opinions in this case. First, a NEPA opinion written by Judge Fisher and joined by Judge Reinhardt appears as Parts I-VI of the decision. Second, a NFMA opinion written by Judge Reinhardt appears as Part VII. Third, a dissent by Judge Fisher on the NFMA issue follows Part VII. Fourth, an opinion by Judge Noonan concurring in the result on the NFMA issue, and dissenting from the NEPA opinion, concludes the decision."

 

    Access the complete opinion, concurrence and dissents (click here). [*Land]

 

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In Re: Application Of Chevron Corporation

May 25: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-4699 & 11-1099. Appealed from the United States District Court for the Eastern District of Pennsylvania. As explained by the Appeals Court, this matter comes on before this Court on appeal from the District Court's December 20, 2010, order granting Chevron Corporation (Chevron), and two of its attorneys discovery from attorney Joseph C. Kohn and his law firm, Kohn, Swift & Graf, P.C. (KSG), pursuant to discovery applications that the Chevron applicants filed under 28 U.S.C. § 1782. Section 1782 provides that -- [t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,‖ subject to the express limitation that -- [a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.‖ 28 U.S.C. § 1782(a).

    The Ecuadorian plaintiffs contend that the district Court misstated the law regarding waiver of the attorney-client privilege, causing it to omit fairness considerations in its analysis, and that consequently its ruling that the attorney-client privilege was waived for all documents in Kohn's file related to the Lago Agrio litigation primarily on the basis of the filming of the documentary Crude, which chronicled the Lago Agrio litigation, was too broad.

 

    The Appeals Court rules, "Inasmuch as we hold that the communications filmed for Crude and its outtakes were not covered by the attorney-client privilege when made due to the presence of the filmmakers at the time of the communications, we will reverse the District Court's orders because the public disclosure of non-privileged communications does not lead to a subject matter waiver of the attorney-client privilege for communications covered by the privilege. We, nevertheless, will remand the matter to the District Court so that it may consider the Chevron applicants' contention that certain communications in Kohn's file are discoverable pursuant to the crime-fraud exception to the attorney-client privilege."

 

    The Chevron Ecuador Lawsuit Clearinghouse blog summarizes the decision saying, "In a decision lending support to plaintiffs' lawyers in a massive pollution lawsuit against Chevron, the U.S. Court of Appeals for the Third Circuit on Wednesday reversed a lower-court ruling that the Philadelphia law firm of Kohn, Swift & Graf P.C. must disclose e-mails and other confidential communications it had in connection with the case. The appeals court sent the case back to U.S. District Judge Jan E. DuBois in Philadelphia, saying there must be evidence linking the Kohn firm to fraud before the firm must disclose communications with its experts in the case and other lawyers. It said it had seen no such evidence."

 

    Access the complete opinion (click here). Access an article explaining further from The Chevron Ecuador Lawsuit Clearinghouse (click here). [*Toxics, *Remed]

 

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Downing/Salt Pond Partners, L. v. State of RI and Providence

May 23: In the U.S. Court of Appeals, First Circuit, Case No..10-1484 , Appealed from the District Court of Rhode Island, Providence. As described by the Appeals Court, Downing/Salt Pond Partners, L.P., frustrated by two state agencies' restrictions on its development of a coastal residential subdivision in Narragansett, Rhode Island, appeals the district court's dismissal of its Federal takings claims under the Supreme Court's ripeness requirements for such claims, set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Downing argues that it is excused from one Williamson County requirement, that it pursue any "adequate procedure for seeking just compensation" that state law provides, id. at 195, under a decision of the First Circuit. It argues it is excused from the other Williamson County ripeness requirement, that the relevant government agency has reached a "final decision regarding the application of the regulations to the property at issue," id. at 186, because the State agency has not yet entered a final decision despite Downing's repeated requests that it do so.

    The Appeals Court rules, "We affirm the dismissal of the complaint, reaching only the first issue. We hold again that Rhode Island's inverse condemnation procedure satisfies the Williamson County requirements and must be followed. See Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 93 (1st Cir. 2003)."

 

    In its summary, the Appeals Court said additionally, "We decline to address the issues raised for the first time by amicus in its brief, which argues that Williamson County's ripeness rules apply only to Takings Clause claims, leaving plaintiffs free to pursue in federal court Due Process Clause and Equal Protection Clause claims that arise from the same allegedly illegal state conduct. '[A]mici may not make up for waiver by a party,' Family Winemakers of Cal. v. Jenkins, 592 F.3d 1, 17 n.23 (1st Cir. 2010), and may not introduce a new argument into a case, Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 74 n.5 (1st Cir. 1996). We note only that we have previously held that plaintiffs cannot, merely by recasting its takings claim "in the raiment of a due process violation," evade the Williamson County ripeness requirements. Deniz, 285 F.3d at 149. While the two agencies strenuously deny that they have been unresponsive or have unreasonably delayed their decisions on Downing's project, we express the hope that the parties will promptly attempt to resolve any remaining disagreements."

 

    Access the complete opinion (click here). [*Land, CA1]

Resurrection Bay Conservation v. City of Seward, Alaska

May 19: In the U.S. Court of Appeals, Ninth Circuits, Case No. 10-35446. Appealed from the United States District Court for the District of Alaska. The issue presented by this appeal is whether the district court abused its discretion in denying an award of attorney fees to Resurrection Bay Conservation Alliance, an Alaska nonprofit corporation, and Alaska Community Action on Toxics, an Alaska nonprofit corporation (collectively RBCA) pursuant to section 505(d) of the Clean Water Act (CWA), because RBCA came within the "special circumstances" standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam).

 

    The Appeals Court concluded "that the district court abused its discretion in ruling that special circumstances were demonstrated, and we remand with instructions that it award that portion of RBCA's fees and costs reasonably incurred in furtherance of the CWA's purpose."

 

    In part, the District Court said, "At best, [RBCA] prevailed on only a small portion of their case. . . Ultimately, the City has not changed any behavior that existed prior to the lawsuit. All that was accomplished was the application for and issuance of one permit to allow activities that were legitimately taking place. . . The Court accordingly finds that this case has unique and "special circumstances" and an award of attorney fees in these circumstances would be unjust."

 

    The Appeals Court said, "First, the district court's analysis misperceives the importance of the CWA's permit requirements and the relief obtained by RBCA. . . Second, although the CWA also forbids pollution, neither the district court nor the City has identified any basis in law for the proposition that the absence of evidence of actual pollution was dispositive. . . Third, neither the district court nor the City has identified any basis in law for the notion that a special circumstances determination can or should be supported by a finding that the City benefitted economically by failing to apply for and obtain an NPDES permit. . . Fourth, the district court's analysis focused solely on whether the City was forced to cease polluting or potentially polluting activities in which it had previously been engaged. . . The district court's perception that RBCA's victory was so insignificant as to constitute a special circumstance to deny any award of attorney fees misapprehended the role of the CWA's permit requirements in furthering the statute's purpose. . ."

 

    RBCA sought an award of fees in the amount of $119,566.50 and costs in the amount of $4,790.80, for a total award of $124,357.30, and asks that the court award the full amount requested because it was not disputed on substantive grounds at the district court. The Appeals Court concluded, "The district court's denial of an award of attorney fees and litigation costs is vacated, and this matter is remanded to the district court with instructions to award RBCA's fees and costs that were reasonably incurred in furtherance of the Clean Water Act's purpose."

 

    Access the complete opinion (click here). [*Water]

 

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Industrial Communications and v. Slade

May 19: In the U.S. Court of Appeals, First Circuit, Case No. 10-1738. Appealed from the District Court of New Hampshire, Concord. David and Marilyn Slade own property in the Town of Alton, New Hampshire (Alton or the Town). Industrial Communications and Electronics, Inc. (Industrial Communications), aims to construct a cell phone tower in Alton for two wireless companies. Claiming that only one site was suitable, Industrial Communications filed an application in September 2005 to construct the tower at 486 East Side Drive in Alton. The site is "200 feet or less" from the border of Slades' property and according to the Slades, the tower would "stand[] prominently in the line of sight of the panoramic view . . . of Lake Winnipesaukee and the surrounding mountains" that the Slades currently enjoy from their property. The Slades consider the property's "stunning views" to be its "most recognizable asset," and they "colorably assert" that the construction will cause them economic as well as aesthetic harm by diminishing the property's value.

 

    The Town's zoning ordinance limits cell phone towers to ten feet above the average tree canopy in a particular area; according to calculations by the Town's forester, Industrial Communications' tower would thus be limited to seventy-one feet above ground level. Because Industrial Communications determined that the tower needed to be 120 feet above ground level to be effective, it applied to the Town's Zoning Board of Adjustment (Board) for a variance to construct the tower. Ultimately, the Board denied the variance, finding in its final written decision that Industrial Communications failed to meet the criteria for a variance under New Hampshire law.

 

    When the Federal action was brought, the Town initially defended the case. The Slades intervened with the permission of the court and then stood silent as the Town handled the defense. The Town eventually filed an "Agreement for Entry of Consent Decree" to settle the case, to vacate the Board's decision denying a variance and to permit a one-hundred-foot tower. The district court concluded that the Slades did not raise any claims a federal court was empowered to address and, refusing to consider the Slades' challenge to the Town's authority to act for the Board, entered as a judgment (with a minor modification) the consent decree proposed by the plaintiffs. The Slades now appeal and the issues.

   

    The Appeals Court vacated and remanded the district court decision and said, "Nothing we have said is intended to suggest that a district court, faced with a proposed consent decree and no opposition from anyone, is obliged to conduct hearings and make supported findings. It is one thing to resolve a case by agreement of all parties; it is another when a party to the case is protesting and the court's authority to wipe out the rights of the protesting party depends on findings that the court has not made. Industrial Communications claims be entitled to relief under the Act: all it now needs to do is to prove it."

 

    Access the complete opinion (click here). [*Land, *CA1]

 

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Northwest Environmental Defense Center v. Brown

May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Appeal from the United States District Court for the District of Oregon. In this case, the Appeals Court notes in an accompanying order that its opinion filed August 17, 2010 [See WIMS 8/18/10], and reported at 617 F.3d 1176, is withdrawn, and is replaced by the current opinion. With the filing of the new opinion, Appeals Court voted unanimously to deny the petitions for a rehearing en banc (i.e. the full panel).

 

    Northwest Environmental Defense Center (NEDC) brings suit against the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities (collectively, State Defendants) and against various timber companies (Timber Defendants, and collectively with State Defendants, Defendants). NEDC contends that Defendants have violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning

of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).

 

    The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. The Appeals Court addressed both questions and conclude that the discharges require NPDES permits.

 

    The Appeals Court said in its opinion, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously." The Appeals Court concluded, "For the foregoing reasons, we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."

 

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

 

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