S.R.P. v. U.S. (National Park Service)

Apr 10: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4011. On Appeal from the District Court of the Virgin Islands – Appellate Division Division of St. Croix. As explained by the Appeals Court, S.R.P., a minor, appealed from an order of the District Court dismissing his claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

 

    The action arose out of a 2004 incident in which S.R.P. was bitten by a barracuda while playing near the shore of Buck Island Reef National Monument (Buck Island Monument or the Monument). S.R.P., through his mother, filed suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., alleging that the Government negligently failed to warn of the danger posed by barracudas to shallow water bathers. The District Court dismissed the case on the basis that the discretionary function exception to the FTCA deprived it of jurisdiction, and thus immunized the Government from suit. The Appeals Court affirmed the District Court decision.

 

    Access the complete opinion (click here). [#Wildlife, #CA3]

 

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Luminant Generation Company, et al v. U.S. EPA

Mar 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60891. On Petition for Review of an Order of U.S. EPA. The Appeals Court explains that the case requires us to review the EPA's disapproval, more than three years after the time within which it was statutorily required to act, of three regulations promulgated by the State of Texas. Pursuant to Texas's duty under the Clean Air Act (CAA), to adopt and administer a statewide plan for implementing Federal air quality standards, the regulations provide for a standardized permit for certain projects that reduce or maintain current emissions rates. The Appeals Court ruled, "Because the EPA had no legal basis on which to disapprove those regulations, we vacate the agency's disapproval of Texas's regulations and remand with instructions."

 

    In a lengthy conclusion, the Appeals Court said, "This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs [pollution control projects] to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit -- submitted four and a half years earlier -- based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act's plain terms, is subject to only the most minimal regulation.

 

    "Because the EPA waited until more than three years after the statutory deadline to act on Texas's submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas's regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas's regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA's authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ('[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.').

 

    "We vacate the EPA's disapproval of 30 Tex. Admin. Code §§ 116.610(a), 116.610(b), and 116.617 and remand with instructions that the EPA reconsider these regulations and approve or disapprove them most expeditiously."

 

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

 

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SCOTUS Rules In Sackett v. U.S. EPA Wetlands Case

Mar 21: In the U.S. Supreme Court, Case No. 10-1062. Appealed from the U.S. Court of Appeals, Ninth Circuit [See WIMS 9/21/10]. Oral arguments were held January 9, 2012 [See WIMS 1/10/12]. The opinion was unanimous with two separate concurring opinions.

 

    Chantell and Michael Sackett own a small lot in a built-out residential subdivision that they graded to build a home. Thereafter, the Sacketts received an Administrative Compliance Order from EPA claiming that they filled a jurisdictional wetland without a Federal permit in violation of the Clean Water Act. At great cost, and under threat of civil fines of tens of thousands of dollars per day, as well as possible criminal penalties, the Sacketts were ordered to remove all fill, replace any lost vegetation, and monitor the fenced-off site for three years. The Sacketts were provided no evidentiary hearing or opportunity to contest the order. And, the lower courts have refused to address the Sacketts' claim that the lot is not subject to Federal jurisdiction. The questions presented to the Supreme Court were: Do Petitioners have a right to judicial review of an Administrative Compliance Order issued without hearing or any proof of violation under Section 309(a) (3) of the Clean Water Act?

 

    The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. The Appeals Court ruled, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district court properly dismissed this case for lack of subject-matter jurisdiction."

 

    The High Court said, "The particulars of this case flow from a dispute about the scope of 'the navigable waters' subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order -- we do not resolve the dispute on the merits."

 

    Despite that fact the Supreme Court said, "The reader will be curious, however, to know what all the fuss is about" and cited its various cases regarding "navigable waters" including: United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001); and Rapanos v. United States, 547 U. S. 715 (2006).

 

    In the opinion, the Supreme Court indicates in part, ". . .the Government notes that Congress passed the Clean Water Act in large part to respond to the inefficiency of then-existing remedies for water pollution. Compliance orders, as noted above, can obtain quick remediation through voluntary compliance. The Government warns that the EPA is less likely to use the orders if they are subject to judicial review. That may be true -- but it will be true for all agency actions subjected to judicial review. The APA's presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review -- even judicial review of the question whether the regulated party is within the EPA's jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity."

    The High Court ruled, "We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

    Justice Ginsburg in a concurring opinion said in part, "The Court holds that the Sacketts may immediately litigate their jurisdictional challenge in federal court. I agree, for the Agency has ruled definitively on that question. Whether the Sacketts could challenge not only the EPA's authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order, is a question today's opinion does not reach out to resolve. Not raised by the Sacketts here, the question remains open for another day and case."

 

    In a lengthier concurring opinion, Justice Alito said, "The position taken in this case by the Federal Government -- a position that the Court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees. The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy. . . Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem."

 

    Access the complete opinion and concurring opinions (click here). Access the transcript of the oral arguments (click here). Access the merit briefs and numerous amicus briefs filed in the case (click here). Access the SupCt docket in the case (click here). [#Water, #SCOTUS]

U.S. v. Oceanpro Industries, Ltd.

Mar 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-5239, 10-5284 and 10-5285. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Oceanpro Industries, Ltd., doing business as "Profish, Ltd." (Oceanpro), a seafood wholesaler in the District of Columbia, and two Oceanpro employees, Timothy Lydon (officer and fish buyer) and Benjamin Clough, III (fish buyer), were convicted for purchasing untagged and oversized striped bass, in violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A) (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law). Oceanpro and Clough were also convicted for giving a false statement to Federal law enforcement officers during the course of the investigation of the crimes, in violation of 18 U.S.C. § 1001. In addition to imposing fines and prison sentences, the district court ordered the three defendants, jointly and severally, to pay Maryland and Virginia $300,000 in restitution, to be divided equally between the States.

 

    On appeal, Oceanpro and Clough challenge the District of Maryland's venue for the false statement offense because the false statement was made at the offices of Oceanpro in the District of Columbia, not in Maryland. In addition, all of the defendants contend that the order of restitution to the States was improper because the States did not have a sufficient interest in the illegally caught fish so as to make them "victims," as is required for receiving the benefit of a restitution order.

 

    The Appeals Court ruled, "We reject both arguments, concluding that venue for the false statement charge was proper in the District of Maryland and that Maryland and Virginia's interest in striped bass was sufficient to make the States 'victims' and therefore to justify an award to them of restitution. Accordingly, we affirm." In its conclusion, the Appeals Court added, "To qualify as victims, Maryland and Virginia need not even have been 'owners' of the striped bass, although they were after the fish were illegally caught; they merely had to have interests that were 'harmed' as a result of the defendants' criminal conduct. Because we have concluded that their interests were indeed harmed, the States were victims and therefore properly awarded restitution."

 

    Access the complete opinion (click here). [#Wildlife, #CA4]

 

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Scarborough Citizens v. US Fish and Wildlife Service

Mar 22: In the U.S. Court of Appeals, First Circuit, Case No. 11-1597. Appealed from the District Court of Maine, Portland. The litigation concerns a segment of the Eastern Trail in Scarborough, Maine. The Eastern Trail is a public recreational trail which is part of a network of trails running along the Eastern Seaboard. The portion of the Trail at issue in this case is over three miles long, runs through a 32-acre tract of land owned by the state of Maine, and is used in part for recreation and to access the state-managed Scarborough Marsh Wildlife Management Area.

 

    An association and several individuals who regularly use the Trail for recreating and hunting, and who support wildlife conservation (Scarborough Citizens) brought suit against the United States Fish and Wildlife Service (USFWS) and its Northeast

Regional Director, as well as the Governor of Maine and the Commissioners of the Maine Department of Inland Fisheries and Wildlife (IFW) and Department of Environmental Protection (DEP). Scarborough Citizens alleged that easements conveyed by the State on the parcel of land violate the law.

 

    In its appeal, Scarborough Citizens argues that the State agency has repeatedly violated the Wildlife Restoration Act and federal regulations in varying respects by conveying nearly ten easements on various portions of the Eastern Trail between 1968 and 2005. The Appeals Court indicates, "The gist of the claim is that these conveyances resulted in uses of the land, initially purchased with funds from the Wildlife Restoration Act, contrary to the purposes for which it was initially acquired."

 

    The Appeals Court rules, ". . .the federal government funded the state's purchase of the property, but it neither funded nor approved the later grant of any of the easements. USFWS may have the power to withhold future funding from the state if the easement violated the regulations and the state does not remedy the violation, 50 C.F.R. § 80.14 (2010), but (to repeat) this power is discretionary. As we conclude that there is no reviewable federal action, neither the federal nor the state officials can be held liable for violating NEPA, as a major federal action is a prerequisite for either."

 

    Regarding violations of State law, the Appeals Court rules, "As we agree with the district court's dismissal of the federal claims in this suit, there is no abuse of discretion in its decision to decline to exercise supplemental jurisdiction over the remaining state law claims."

 

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

 

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BEPCO, L.P. v. Santa Fe Minerals, Inc.

Mar 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30986. Appeal from the United States District Court for the Western District of Louisiana. As explained by the Appeals Court, in 2008, BEPCO, L.P. sued Santa Fe Minerals, Inc. in Louisiana state court. In its petition, BEPCO set forth claims for indemnity and contribution in an attempt to recover money it had paid out in a settlement. Santa Fe and a group of subsequently named defendants then filed cross-claims and third-party claims against a multitude of insurers and underwriters, including Lloyd's London.

 

    Among the Lloyd's London insurers named by the defendants was the Insurance Corporation of Ireland, which is now known as ICAROM. In January 2011, ICAROM exercised its right to removal under the Foreign Sovereign Immunities Act. After BEPCO objected to removal, the district court remanded the case to state court. ICAROM now appeals the district court's remand order. The Appeals Court said, "Because we lack jurisdiction to review this order, we dismiss ICAROM's appeal."

 

    In April 2005, the landowners filed suit against BEPCO and Santa Fe Minerals, and alleged that contaminated water produced from oil wells on the "Tebow property" was disposed of in unlined earthen pits on their property. According to the landowners, some of the contaminated water entered a drinking water aquifer. As relief for their injuries, the landowners sought $320 million."

 

    On appeal, ICAROM argues that the district court exceeded its statutory authority by ordering a remand on the basis of an objection that was not raised within the 30-day limit prescribed by 28 U.S.C. § 1447(c). The Appeals Court indicates, ". . .the threshold question that controls us is whether we have jurisdiction to consider this petition. 'In re Adm'rs of Tulane Educ. Fund, 954 F.2d 266, 268 (5th Cir. 1992) (quoting In re Allied-Signal, Inc., 919 F.2d 277, 279 (5th Cir. 1990)). Generally, as stated above, [a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]" 28 U.S.C. § 1447(d). "This proscription includes petitions for mandamus.' In re Adm'rs of Tulane Educ. Fund, 954 F.2d at 268 (citing Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977))."

 

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

 

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Otay Land Co. v. United Enterprises Ltd.

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55550. Appeal from the United States District Court for the Southern District of California. The Appeals Court indicates that, "Given the complexities of litigation and the escalating magnitude of attorneys' fees, it is no surprise that appellate review of attorneys' fees and costs has focused overwhelmingly on fees. Nonetheless, costs also can add up to a considerable amount and because fees are not always available by contract, statute or otherwise, an award of costs can take on heightened importance."

 

    The Appeals Court said, "Under 28 U.S.C. § 1919, when a suit is dismissed for lack of jurisdiction, the court "may order the payment of just costs." This case requires us to parse the term "just" and consider what constitutes "just costs." Here, the district court awarded costs to defendants on the ground that they were necessarily incurred in defending the action. Because the district court implied a presumption of award of costs that is absent in the permissive statute, and because it equated incurred costs with "just costs," we conclude that the court abused its discretion under § 1919."

 

    By way of background, the Appeals Court explains that Otay's Third Amended Complaint alleged that United Enterprises, comprised of former owners and operators of a shooting range in Chula Vista, California, was responsible under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act and § 7002 of the Resource Conservation and Recovery Act for removing lead and other pollutants from the real property in question, now owned by Otay. The complaint also included a claim under the California Hazardous Substances Account Act, as well as other state causes of action.

 

    On remand, at a hearing on costs, the district court advised the parties: "Counsel, I have to tell you, I have reviewed the case pretty thoroughly. I don't see any reason why costs should not be imposed in this case. Even though there is, perhaps, no prevailing party, it does certainly appear to me that just cause [sic] should be awarded to the defendants. It appears that this action was filed prematurely, and so, therefore, you know, it just makes sense to me to award costs to the defendants."

 

    In conclusion, the Appeals Court says, ". . .we conclude that the district court's standard is inadequate and erroneous. The award of costs may well have been appropriate here. But we do not take a position on the ultimate award of costs, a decision we leave to the district court. Rather, we reiterate that while § 1920 may be helpful in determining what costs to award once other relevant factors have been considered, its enumeration of cost items is not a substitute for determining whether an award of costs is 'just' under § 1919. Nor can the award of costs be presumed simply because a party was successful on a threshold ground and the costs were incurred. We vacate the cost award and remand to the district court to consider the 'just costs' issue consistent with the considerations outlined in this opinion."

 

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

 

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