Sherer v. United States Forest Service

Aug 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1418. Appealed from the United States District Court for the District of Colorado. In this opinion involving fees charged by the U.S. Forest Services, the Appeals Court says, "Everyone enjoys a trip to the mountains in the summertime. One popular spot is Mount Evans -- a fourteen thousand foot peak just a short drive from Denver and with a paved road that goes right to the summit. When the snow

melts and the road thaws, the national forest around Mount Evans teems with hikers and sightseers eager to take in the breathtaking views. But first they have to stop and pay. That's because the Forest Service maintains an entrance station along the road where it charges many visitors what it calls an "amenity fee."

 

    "Wanting everyone to be able to hike Mount Evans and take in its scenery without charge, the plaintiffs in this case ask us to strike down the Service's fee policy as facially inconsistent with Congress's directions, to hold it null and void in all applications. This, however, we agree with the district court we cannot do. For better or worse, the Legislature has said that the Service may — sometimes -- charge visitors to Mount Evans. So some lawful applications of the policy do exist. But saying this much shouldn't be misconstrued as saying more. In rejecting the plaintiffs' facial challenge we hardly mean to suggest that the Service's policy can't be attacked at all. It might well be susceptible to a winning challenge as applied to certain particular visitors, perhaps even the plaintiffs themselves. But that's a path the plaintiffs haven't asked us to explore and so one we leave for another day."

 

    The Appeals Court provides additional clarification and says, "As a general rule Congress has decreed that anyone may enter this country's great national forests free of charge. See 16 U.S.C. § 6802(e)(2). But in 2004 Congress included an important exception in what it called the Recreation Enhancement Act (REA). The REA allows the Forest Service to impose 'amenity fees' in areas that 'provide[] significant opportunities for outdoor recreation,' where there are 'substantial Federal investments' and certain 'amenities' -- amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services. See 16 U.S.C. § 6802(f). Soon after the REA's adoption, the Forest Service invoked this very provision and adopted a 'Mount Evans Clear Creek Ranger District Federal Lands Recreation Enhancement Act Implementation Plan' imposing an amenity fee at Mount Evans."

 

    Access the complete opinion (click here). [#Land, #CA10]

Sierra Club v. Federal Highway Administration

Aug 2: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20502. Appealed from the United States District Court for the Southern District of Texas. In this unpublished opinion, Sierra Club and Houston Audubon Society brought suit under the National Environmental Policy Act,  alleging that the Federal Highway Administration and others failed to follow certain requirements when preparing the Final Environmental Impact Statement for Segment E of the Grand Parkway, a highway planned in northwest Houston. The district court concluded that the defendants had complied with the Act's requirements and entered summary judgment in their favor. The Appeals Court affirmed.

 

    The Appeals Court concluded in its decision, "Although the district court may have erred in denying Appellants leave to amend, or at least erred in failing to provide its reason for doing so, any error was harmless. See Fed. R. Civ. P. 61 ('At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.'). Appellants assert that their rights were affected because the district court's denial of leave to amend prevented them from addressing inadequacies in the Re-evaluation. On the contrary, the district court never prohibited the parties from addressing the Re-evaluation. Furthermore, most of the additional claims in the proposed amended complaint were duplicative of the claims asserted in the original complaint. The relief sought by Appellants in the original complaint included the preparation of a supplemental EIS, and the Agencies concluded in the Re-evaluation that a supplemental EIS was unnecessary; therefore, the Re-evaluation was relevant to and appropriately addressed as part of Appellants' claims based on the FEIS. Two of the claims based on the Re-evaluation did not mirror claims in the original complaint, but one claim could have been brought in the original complaint and the other was fully addressed by the parties in their summary judgment briefing as part of one of the original claims. Appellants are therefore unable to demonstrate that their substantial rights were affected by the district court's denial of leave to amend their complaint."

 

    Access the complete opinion (click here). [#Transport, #CA5]

 

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Florida Wildlife Federation v. U.S. EPA

Aug 3: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 10-11121 & 10-10886. Appealed from the United States District Court for the Northern District of Florida. Intervenors-Appellants Florida Water Environment Association Utility Council and South Florida Water Management District (Appellants) appeal the district court's order approving a consent decree between the United States EPA and a group of environmentalist organizations (Plaintiffs). The consent decree settled a suit filed by the Plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the State of Florida. The Appellants claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree. A split Appeals Court said, "Because the Appellants have not demonstrated a live case or controversy that would give this court jurisdiction over their case, we dismiss their appeal."

 

    The majority ruled, "Standing is a rigid doctrine, and it can lead to an abrupt end to a case that has consumed large amounts of judicial and social resources. Nonetheless, this court is bound by the Constitution, not the dictates of convenience. For the aforementioned reasons, we conclude that the Appellants lack standing to appeal. They seek to challenge a consent decree that establishes a schedule under which the EPA has begun promulgating numeric water-quality criteria for nutrients in Florida's waters. However, the only alleged injuries about which they complain occur -- if ever at all -- after the promulgation of the EPA's final rules and possibly not until those criteria are actually applied to the Appellants through incorporation into their individual discharge permits. Once the rules have been promulgated and implemented, the Appellants may bring suit raising the arguments they try to raise here. But in this case, their challenges to anticipated effects of the scheduling of the rulemaking process are entirely speculative."

 

    The dissenting justice indicated, "I dissent from the majority's dismissal of Appellants' claims related to the EPA's forthcoming Phase II rule [i.e. publish numeric nutrient standards for Florida's coastal and estuarine waters]. Although Appellants have demonstrated that they have been injured by the consent decree, the majority's opinion effectively eliminates all means by which Appellants could challenge any errors made by the district court when approving it. Because: (1) nothing in standing doctrine requires Appellants to rely solely on one particular avenue for suit where multiple, justiciable avenues exist, see Ala. Power Co. v. U.S. Dept. of Energy, 307 F.3d 1300, 1309 (11th Cir. 2002) (rejecting the Department of Energy's argument that non-parties to a settlement agreement should await a final decision by the Department before suing, rather than challenging the terms of the settlement agreement); (2) 'fairly traceable' does not mean absolutely and exclusively traceable, see Bennett v. Spear, 520 U.S. 154, 168–69 (1997) (holding, based on analogous facts, that 'fairly traceable' does not mean that the defendant's actions must be the very last step in the chain of causation); and (3) our law is clear that a court must not enter a consent decree without the consent of all parties whose rights would be affected, see United States v. City of Hialeah, 140 F.3d 968, 978–81 (11th Cir. 1998), this Court should have reached the merits of Appellants' claims alleging substantive and procedural injuries from the entry of the consent decree."

 

    Access the complete opinion and dissent (click here). [#Water, #CA11]

Hinds Investment, LP v. Team Enterprises, Inc.

Aug 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15607. Appeal from the United States District Court for the Eastern District of California. Plaintiffs Hinds Investments, L.P. and Patricia MacLaughlin (collectively, Hinds) appeal the district court's dismissal of their claims against manufacturers of dry cleaning equipment brought, inter alia, under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901 et seq. RCRA permits citizen suits against "any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. § 6972(a)(1)(B). [Note: See also the similar 9th Circuit case, Team Enterprises, LLC v. Western Investment Real Estate Trust, WIMS 7/27/11].

 

    The district court held that Hinds's allegations that the manufacturers contributed to waste disposal, by the design of machines that generated waste and by the instructions they gave on use of these machines, were insufficient as a matter of law to support a civil action under RCRA because all of the defendant manufacturers' alleged contributions were passive. The Appeals Court said, "We affirm. We hold that, for RCRA liability, 'contribution' requires more active involvement than was alleged as to the defendant manufacturers." The Appeals Court also noted in a footnote, "Hinds also appeals the dismissal of its other statutory and common law claims against defendant manufacturers. In a separate memorandum disposition filed along with this opinion, we affirm those rulings."

 

    The Appeals Court concluded, "We hold that to state a claim predicated on RCRA liability for "contributing to" the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient."

 

    Access the complete opinion (click here).  [#Remed, #Haz, #CA9]

Team Enterprises, LLC v. Western Investment Real Estate Trust

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16916. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that, "We must decide, among other things, whether the manufacturer of a machine used in the dry cleaning process may be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act." Plaintiff-Appellant Team Enterprises, LLC (Team) has, since 1980, leased space in a shopping center in Modesto, California, where it operates a dry cleaning store. From 1980 to 2004, Team used perchlorethylene (PCE), a volatile organic compound defined as a "hazardous substance" by the State of California, in its dry cleaning operation. Team's dry cleaning machines used PCE as part of the cleaning process, thereby generating wastewater containing the chemical.

 

    Team used Puritan Rescue 800 filter-and-still combination equipment (Rescue 800), designed and manufactured by Defendant-Appellee R.R. Street & Co., Inc. (Street), to filter and to recycle the PCE-laden wastewater for reuse. The Rescue 800 returned distilled PCE to Team's dry cleaning machines and deposited the resulting wastewater into an open bucket. Once in the bucket, some of the remaining PCE would separate from the water, allowing Team to recapture "pure" (or visible amounts of) PCE for reuse. The remaining wastewater contained dissolved -- and invisible -- PCE. Team disposed of this wastewater by pouring it down the sewer drain. Some of the PCE then leaked into the soil, and the California Regional Water Quality Control Board deemed the affected property in need of cleanup, which Team duly performed at its own expense.

 

    Team sued Street and several other defendants in the Eastern District of California, for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Team also alleged various state-law causes of action, including claims for trespass and nuisance. The district court granted summary judgment to Street on all claims and entered final judgment as to it. Team appealed the district court's grant of summary judgment as to Team's CERCLA, trespass, and nuisance claims. The Appeals Court affirmed the district court decision.

 

    On the CERCLA claim, the Appeals Court said, "Team does not point to any evidence in the record that Street hooked up the Rescue 800 to the sewer, that Street continued to own the Rescue 800 used in Team's store, that Street owned or possessed the PCE that Team disposed of, that Street made dumping wastewater down the drain a condition of its sales contract with Team, or that Street employees poured wastewater down the drain at Team's stores. In short, there is a dearth of evidence indicating that Street exercised actual control over Team's disposal. Accordingly, we conclude that Team has not presented evidence giving rise to a genuine dispute as to any material fact with respect to its CERCLA claim."

 

    The Appeals Court ruled in part, "Although Team presented evidence that Street instructed it to pour wastewater containing PCE into a bucket, there is no evidence in the record that Street 'instructed the dry cleaners to set up their equipment to discharge solvent-containing wastewater into the drains and sewers,' or that Street 'gave dry cleaners instructions to dispose of spilled [PCE] on or in the ground.' . . . And despite Team's protestations that once wastewater from the Rescue 800 had been poured into a bucket there was no alternative but to pour it down the drain, Team's alleged lack of alternatives do not indicate that Street engaged in the "kinds of affirmative acts or instructions" that would 'support a finding that [Street] assisted in creating a nuisance.'"

 

    The Appeals Court concludes, ". . .it is clear from the record that the Rescue 800 is not a disposal system. The Rescue 800 was not designed to route wastewater from the dry cleaning machines to the sewer; it was designed to filter and to recycle used PCE that otherwise would have been lost. We therefore agree with the district court's conclusion that Team failed to present evidence giving rise to a genuine dispute as to any material fact with respect to its nuisance claim."

 

    On the trespass issue the Appeals Court rules, "Team, however, did not present any evidence that either the Rescue 800 or the PCE entered the property without Team's consent. Moreover, Team's employees contaminated the soil by pouring the wastewater down the drain, and 'one cannot commit an actionable interference with one's own possessory right.' Capogeannis, 15 Cal. Rptr. 2d at 799. Because Team's contamination of the land was not a trespass against itself, Street may not be held liable for assisting in a trespass."

 

    In a separate concurring opinion, one Justice indicated, "I am pleased to join the majority's well-reasoned and insightful opinion. I write separately to explain my view that CERCLA, by its plain language, should not apply to this case. . . In this case, the undisputed evidence reveals that Street did not, at any point, own or possess the relevant PCE. Accordingly, Street is entitled to summary judgment on Appellant's CERCLA claim."

 

    Access the complete opinion (click here). [#Remed, #CA9]

 

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Citizens For Balanced Use v. Erickson

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35823. As explained by the Appeals Court, three conservation groups, Montana Wilderness Association, Greater Yellowstone Coalition, and The Wilderness Society (collectively, Applicants) appeal from the denial of their motion to intervene on the side of the defendants in an action brought by Citizens for Balanced Use (CBU) against Mary Erickson, in her official capacity as Supervisor of the Gallatin National Forest, and the United States Forest Service (Forest Service).

 

    In the underlying action, CBU challenged an interim order issued by the Forest Service in response to an adverse decision in prior litigation brought by Applicants. That interim order, which is the subject of this litigation, restricted motorized and mechanized vehicle use in a section of the Gallatin National Forest. CBU alleged that the challenged interim order violated the Montana Wilderness Study Act of 1977 (MWSA) and the Administrative Procedure Act (APA) because it unduly restricted the use or possession of snowmobiles, tracked ATVs, and other over-snow vehicles.

 

    The Appeals Court said, "Because we conclude that Applicants satisfied the four requirements for intervention as of right under Federal Rule of Civil Procedure 24(a), we reverse and remand with instructions that the district court allow Applicants to intervene and become parties to the ongoing litigation, and that the district court take reasonable steps to put Applicants on equal footing with the original parties so as to ensure their opportunity for participation."

 

    The Appeals Court concluded, "Applicants showed, in a timely-filed motion, that they have a significant protectable interest in this action, that the disposition may impair their ability to protect that interest, and that the Forest Service may not adequately represent their interest. Applicants are entitled to intervene under Rule 24(a). We reverse and remand with instructions that Applicants be made parties to the litigation and that the district court promptly 'take all reasonable steps to put the new parties on equal footing with the original parties.' California ex rel. Lockyer, 450 F.3d at 445. Because the district court may soon rule on dispositive motions that could affect Applicants' interests, time is of the essence; the clerk is instructed to issue the mandate forthwith."

 

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

 

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San Juan Citizens Alliance vs. Stiles (USDA & DOI)

Jul 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 10-1259. Appealed from the U.S. District Court for the District of Colorado. The appeal concerns the Northern San Juan Basin Coal Bed Methane project (the Project), which has been approved by the United States Forest Service (the Forest Service) and the Bureau of Land Management (the BLM). The Project contemplates the construction of numerous gas wells within the San Juan National Forest (the Forest) and on other federal lands. San Juan Citizens Alliance and four other environmental advocacy groups (collectively, SJCA) filed suit in the United States District Court for the District of Colorado against the Forest Service, the BLM, and four government officials (collectively, the Federal Defendants) for alleged violations of the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA).

 

    The suit contends that the 2007 record of decision (ROD) approving the Project was unlawful. Several companies holding valid leases in the area and interested in drilling for gas (the Lessees) were permitted to intervene as additional defendants. The district court entered judgment in favor of the defendants. SJCA argues on appeal that the Project violates the NFMA because it is inconsistent with provisions of the San Juan National Forest Plan (the Forest Plan) protecting old-growth ponderosa pine forests, wildlife habitat, and riparian areas, and that the ROD approved individual wells under the Project that violate the Forest Plan's standards and guidelines protecting riparian areas.

 

    It further argues that the Federal Defendants violated NEPA in two respects when they prepared an environmental impact statement (EIS) assessing the Project's environmental consequences: (1) the EIS did not adequately analyze the Project's

effects on the Forest's riparian areas, offering only perfunctory references to mitigation measures without evaluating how those measures could correct Forest Plan violations; and (2) the Federal Defendants did not include several nearby national parks and wilderness areas in its cumulative-impact analysis of the Project's effects on air quality and visibility.

 

    The Appeals Court affirmed in part and remanded in part saying the ripeness doctrine precludes us from addressing the merits of any of SJCA's challenges to the Project under the NFMA. A claim that the Project is inconsistent with the Forest Plan is not ripe until that inconsistency leads to the improper approval of a specific well (or associated construction). . . Because SJCA's NFMA claims that the Project is inconsistent with the Forest Plan are not ripe, we remand to the district court to vacate its judgment on those claims and to dismiss them without prejudice.

 

    The Appeals Court also ruled, "As for SJCA's NEPA claims, we reject them on the merits. First, the EIS's discussion of riparian-area mitigation measures is more than adequate to satisfy NEPA. An EIS assessing environmental consequences at the programmatic stage of a multi-step development project can properly discuss mitigation measures in general terms when the specifics of possible well locations are still uncertain, leaving for later a more complete analysis of environmental consequences associated with permitting a particular well site. Second, the Federal Defendants' decision on which public lands to include in the cumulative-impact analysis of air quality was a reasonable choice involving technical and scientific matters within their areas of expertise."

 

    Access the complete opinion (click here). [#Energy/NatGas, #Land, #CA10]

 

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