Karuk Tribe of California v. US Forest Service

Jun 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16801. Appealed from the United States District Court for the Northern District of California. In this en banc panel, the Appeals Court considers whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of the Endangered Species Act (ESA) before allowing mining activities to proceed under a Notice of Intent (NOI) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any "agency action" that "may affect" a listed species or its critical habitat.

 

    The Appeals Court identified what it called "two substantive questions" -- The first is whether the Forest Service's approval of four NOIs to conduct mining in the Klamath National Forest is "agency action" within the meaning of Section 7. Under

established case law, they said, "there is 'agency action' whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs."

 

    They indicated that the second question is whether the approved mining activities "may affect" a listed species or its critical habitat. They said, "Forest Service regulations require a NOI for all proposed mining activities that 'might cause' disturbance of surface resources, which include fisheries and wildlife habitat. . . In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the 'may affect' standard.

 

    The Appeals Court in a 7-4 decision ruled, "We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest." In an footnote the majority also indicated that, "The parties appear to assume that if consultation is required under Section 7, it is required with both agencies [i.e. Fish and Wildlife Service and the NOAA Fisheries Service]. Without deciding the question, we also will so assume."

 

    The ruling overrules the previous 2-1 majority opinion that concluded, "We hold that the NOI process does not constitute an 'agency action,' as that term is defined under the ESA. The Ranger's receipt of an NOI and resulting decision not to require a Plan is most accurately described as an agency decision not to act. Because ' "inaction" is not "action" for section 7(a)(2) purposes,' W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006), we affirm the district court's denial of summary judgment on the Tribe's ESA challenge to the NOI process." [See WIMS 4/8/11].

 

    In its conclusion, the majority en banc panel said, "There is 'agency action' under Section 7 of the ESA whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria. By definition, mining activities requiring a NOI are those that 'might cause' disturbance of surface resources, including underwater fisheries habitat. The Forest Service does not dispute that the mining activities it approved in this case 'may affect' critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs. We reverse the district court's denial of summary judgment on the Karuk Tribe's ESA claim and remand for entry of judgment in favor of the Tribe."

 

    In a stinging dissenting opinion that opened by citing a passage from Jonathan Swift, Gulliver's Travels, Chapter 1; the minority 4 Justices said, "Here we go again. Until today, it was well-established that a regulatory agency's 'inaction' is not 'action' that triggers the Endangered Species Act's (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency's decision not to act forces it into a bureaucratic morass. In my view [and those joining Justices], decisions such as this one, and some other environmental cases recently handed down by our court (see Part VII, infra), undermine the rule of law, and make poor Gulliver's situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions."

 

    The dissent concluded, "No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules. In contrast, in order to preserve the vitally important principle of judicial independence, we are not politically accountable. However, because of our lack of public accountability, our job is constitutionally confined to interpreting laws, not creating them out of whole cloth. Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role (as illustrated supra) when it comes to construing environmental law. When we do so, I fear that we undermine public support for the independence of the judiciary, and cause many to despair of the promise of the rule of law."

 

    Access the complete opinion and dissent (click here). [#Wildlife, #CA9]

 

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National Association Regional Utility Commissioners v. U.S. DOE

Jun 1: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1066 & 11-1068. On Petitions for Review of Final Actions of the Department of Energy (DOE). The Appeals Court explains that petitioners, the National Association Regional Utility Commissioners nuclear power plant owners and operators, ask the court to review a November 2010 determination by the Secretary of Energy finding that there was no basis for suspending, or otherwise adjusting, annual fees collected from them totaling some $750 million a year. Those fees are intended to cover the full costs of the government's long-term disposal of civilian nuclear waste. But the Administration has discontinued development of Yucca Mountain, which was the designated location for the disposal of the waste.

 

    According to petitioners, the Secretary's 2010 determination, made subsequent to that decision, failed to examine (or even mention) the anticipated costs of disposal, or compare them to expected revenues from the fees (and associated interest and investment income). The Secretary's determination is claimed, thereby, to have violated the 1982 Nuclear Waste Policy Act (the Act), which obliges the Secretary to annually "evaluate whether collection of the fee will provide sufficient revenues" to offset program costs. In the absence of such evaluation, it is argued, the determination was invalid, and because no future program has replaced Yucca Mountain, petitioners contend that the Secretary is obliged to suspend the fees and report his action to Congress.

 

    The Appeals Court ruled, "We conclude that the Secretary has failed to perform a valid evaluation, as he is obliged to do under the Act, but we do not think it appropriate to order the suspension of the fee at this time. Instead, we remand to the Secretary with directions to comply with the statute within six months. The panel will retain jurisdiction over this case so that any further review would be expedited."

 

    NARUC President David Wright of South Carolina issued a statement saying, "Today's decision by the court is an important victory for nuclear-power consumers. The court made clear that the Energy Department has not justified continued payments into the Nuclear Waste Fund. Although the court did not suspend these payments, the Energy Department is on notice that they must do a thorough and complete assessment within six months as to whether the fees -- charged to nuclear utilities and passed through to their consumers -- are necessary. If the Department does not, the court stated that they have the authority to suspend the payments into the Fund. Nuclear-power utilities and their consumers have paid more than $30 billion into the Nuclear Waste Fund for nearly 30 years. To date they have nothing to show for their investment except political delays, bureaucratic red tape, and a hole in the Nevada desert. Today's decision will force the Energy Department to do its job and prove why it should continue fees for a nuclear-waste program that it says no longer exists. We believe the evidence demonstrates that until and unless a new nuclear-waste policy is developed, consumers should be given a break."

 

   Access the complete opinion (click here). Access the NARUC statement (click here). [#Energy/Nuclear, #Haz/Nuclear, #CADC]

 

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Tomas Carijano, et al v. Occidental Petroleum Corporation

May 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 & 08-56270. The Appeals Court denied Occidental Petroleum Corp.'s bid for an en banc rehearing of a panel ruling that revived claims that the oil company's Peruvian unit polluted waterways and caused health problems for members of an indigenous group in northern Peru [See WIMS 6/2/11].

 

    In its brief order, the Appeals Court said, "The panel unanimously voted to deny the petition for panel rehearing. Judges Wardlaw and Gould also voted to deny the petition for rehearing en banc and Judge Schroeder so recommended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. Judge Bea was recused. The petition for rehearing en banc is denied.

 

    In the original Ninth Circuit appeal of June 2, 2011, 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. Plaintiffs appealed the dismissal of their suit.

 

    The majority ruled, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens 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."

 

    Access the order and dissenting and concurring in denial of rehearing en banc opinions  (click here). Access the original Ninth Circuit opinion and dissent (click here).  [#Haz, #Toxics, #CA9]

 

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Gulf Restoration Network, Inc., et al v. Ken Salazar (DOI)

May 30: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60411, consolidated with Case Numbers 10-60413, 10-60414, 10-60415, 10-60416. Petitions for Review of Orders of the Department of Interior (DOI). The Appeals Court recounts that on April 20, 2010, BP's Deepwater Horizon, an oil drilling rig on the outer continental shelf, 50 miles from Louisiana, exploded, causing a three-month long spill of 4.9 million barrels of oil into the Gulf of Mexico. Before and during the oil spill, the Department of the Interior (DOI) continued to process mineral lessees' applications for approval of plans for exploration and development of new oil wells.

 

    The petitioners in this case, the Sierra Club, the Gulf Restoration Network, and the Center for Biological Diversity (the Center), filed petitions for judicial review in the Appeals Court challenging sixteen DOI plan approvals, issued between March 29 and May 20, 2010, under the Outer Continental Shelf Lands Act (OCSLA). Specifically, the petitioners argue that the DOI's approvals of the plans violated both the OCSLA and the National Environmental Policy Act of 1969 (NEPA) because: (1) the DOI failed to consider the BP Deepwater Horizon disaster in approving further deepwater drilling; and (2) the DOI conducted an inadequate review of the plans under NEPA, because it incorrectly applied "categorical exclusions" (from the NEPA requirements of preparing environmental assessments or environmental impact statements) to those plans, which should not have been so excluded because they involved drilling in "relatively untested deep water," "areas of high biological sensitivity," "areas of high seismic risk or seismicity," or "areas of hazardous natural bottom conditions." As to the second argument, the Center emphasizes that the BP Deepwater Horizon disaster further shows the inherent inadequacy of the DOI's environmental analyses underlying the categorical exclusions. The petitioners requested the Appeals Court to vacate the DOI's approvals of the sixteen plans and remand the plans to the DOI for further proceedings consistent with OCSLA and NEPA.

 

    The Appeals Court indicates, "We conclude that: (1) the petitioners' OCSLA-based challenges are justiciable, except for four, which have become moot; (2) the DOI's approval of the exploratory and development plans are subject to judicial review by this

court under OCSLA, 43 U.S.C. § 1349(c)(2); (3) the petitioners' failure to participate in the administrative proceedings related to the DOI's approval of the plans as required by § 1349(c)(3) does not oust our jurisdiction because that participation requirement is a non-jurisdictional administrative exhaustion rule; but, (4) the petitioners have not shown sufficient justification for excusing them

from that exhaustion requirement in this case. Accordingly, except for four of the petitioners' petitions for judicial review that are dismissed as moot, the petitioners' petitions for judicial review are dismissed because of their failure to participate in the administrative proceedings."

 

    The Appeals Court says further, "The petitioners have not shown that, under OCSLA, the DOI's actions or omissions caused their failure to participate in the administrative proceedings, as required by §1349(c)(3), in order to subject the DOI's approval of the plans involved here to judicial review. For these reasons we conclude that, if we could recognize an exception to §1349(c)(3)(A)'s requirement that judicial review shall be available only to a person who participated in the pertinent administrative proceeding, the petitioners have not shown that they are entitled to such an exception or excuse in this case."

 

    Access the complete opinion (click here). [#Energy/OCS, #CA5]

 

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Native Village Of Point Hope et al. v. DOI/BOEM

May 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-72943. On Petition for Review of a Final Agency Action of the Department of Interior (DOI), Bureau of Ocean Energy Management (BOEM). Other major environmental organizations who were part of the action included: Center For Biological Diversity; Defenders of Wildlife; Natural Resources Defense Council; National Audubon Society and several others.

 

    As explained by the Appeals Court, "In these expedited petitions for review, we consider the allegations of Native Village of Point Hope et al. and Inupiat Community of the Arctic Slope (collectively, 'petitioners') that the Bureau of Ocean Energy Management (BOEM) failed to discharge its obligations under the Outer Continental Shelf Lands Act (OCSLA) in approving Shell Offshore Inc.'s plan for exploratory oil drilling in the Beaufort Sea. We have jurisdiction pursuant to 43 U.S.C. § 1349(c), and we deny the petitions."

 

    In a footnote, the Appeals Court also said, "In a separate memorandum disposition filed concurrently with this opinion, we deny expedited petitions challenging BOEM's decision to approve an exploration plan for Shell Gulf of Mexico Inc. to drill for oil in the Arctic Ocean's Chukchi Sea. Because of the expedited nature of this case, no motions to stay the mandate will be granted. Petitions for rehearing and rehearing en banc may be filed with respect to this opinion."

 

    In part, the Appeals Court ruled, "BOEM concluded that Shell's exploration plan complied with applicable requirements and would not cause serious harm or damage to the environment, but nevertheless required Shell to provide further documentation of its well-capping stack and containment system, as well as to meet certain additional conditions. This interpretation by BOEM of its own regulations is controlling unless plainly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 461. Further, the conditions at issue here, which require Shell to seek additional authorizations before commencing drilling, are consistent with the statutory scheme's requirement that a leaseholder with an approved exploration plan obtain a permit to drill and other approvals that 'conform to the activities described in detail in [the] approved [exploration plan]' before conducting exploration activities. 30 C.F.R. § 550.281; see also 43 U.S.C. § 1340(d). For these reasons, petitioners' argument that BOEM impermissibly conditioned its approval is without merit."

 

    Access the complete opinion (click here). [#Energy/OCS, #CA9]

 

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Sierra Club v. Christopher Korleski (Ohio EPA)

May 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3269. Appealed from the Southern District of Ohio at Columbus. In this important split decision, the Appeals Court overturns a district court decision regarding the rights of citizens to sue to force a state to enforce the Clean Air Act. The majority summarizes the case saying, "The State of Ohio, pursuant to legislation passed by its General Assembly and signed by its Governor, has chosen no longer to administer a particular federal regulation promulgated under the Clean Air Act. The plaintiffs brought this lawsuit to compel the State to administer the federal regulation. As authority for the suit, the plaintiffs invoke the Clean Air Act's citizen-suit provision.

 

    "The State contends that the suit is not authorized by that provision. The district court agreed with the State's contention, but felt bound to rule otherwise in light of a case decided in 1980 by this court. The district court therefore entered an injunction expressly ordering the State to administer the federal rule. We conclude, based upon intervening Supreme Court precedent and the text and structure of the Clean Air Act itself, that the Act's citizen-suit provision does not authorize this lawsuit. We therefore reverse the district court's judgment and remand with instructions to dismiss the complaint."

 

    The majority recounts that, "If a State fails to propose a SIP [state implementation plan], or proposes one that the EPA determines will not meet the Air Quality Standards, then the EPA may impose its own federal implementation plan for the State. Id. § 7410(c). In contrast, if the EPA approves a State's proposal, then the SIP is added to the Code of Federal Regulations and becomes federal law. At that point, the State's ability to modify the SIP is limited. . . The Act contemplates that each State will take primary responsibility for enforcing its SIP. If a State fails to enforce the SIP's requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly. . . Second, the EPA can take over administration of the State's SIP. . . Third, the EPA can sanction the State. . ."

 

    Then, the majority says, "To a limited extent, the Act also contemplates private enforcement of its provisions. Specifically, the Act includes a citizen-suit provision that allows 'any person' to file suit against 'any person . . . who is alleged to have violated . . . or to be in violation of . . . an emission standard or limitation under this chapter[.]'"

 

    In 2006, the Ohio General Assembly passed legislation that allows the Director to issue permits to smaller emission sources -- those producing less than 10 tons per year of emissions ("small emitters") -- without first determining whether those sources will employ "best available technology," or BAT.Ohio's Governor signed this legislation and it took effect on December 1, 2006. While the provision is contrary to Ohio's SIP and EPA rejected the proposed amendment on procedural grounds, and thus the BAT requirement remains part of the SIP; the majority indicates that "EPA has chosen not to enforce the requirement itself, even though the Act empowers it to do so. . . Nor has the EPA chosen to use any of the various means at its disposal under the Act to induce Ohio to enforce the BAT requirement against small emitters.

 

    In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen suit against the Director of Ohio's EPA. The complaint alleged, among other things, that the Director's refusal to make a BAT determination before issuing permits to small emitters constituted a "violation of [] an emission standard or limitation" within the meaning of the Clean Air Act's citizen-suit provision.

 

    In large part, the majority concludes: ". . .even the plaintiffs themselves have a remedy here. If they want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA. The judgment of the district court is reversed, and the case remanded with instructions to dismiss the complaint."

 

    The dissent justice argues that the majority has violated a basic principle of the Appeals Court in that it "overrules a published opinion of a previous panel." The previous case cited -- United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980). Even the majority indicates that, "The district court adhered to its view that the most natural reading of § 7604(a)(1) would not authorize the plaintiff's suit, but thought that the reasoning of Highway Safety, if not its specific holding, compelled the opposite conclusion."

 

    The dissenting justice says, "The majority argues that because Highway Safety discussed a different part of the CAA, that opinion's definition of 'violation' is 'technically not binding on us here.' However, the majority fails to point to any legislative history that rebuts the presumption that words in the same statute have the same meaning. Instead, the majority seeks to distance itself from Highway Safety's holding by substituting its own interpretation of the CAA's legislative intent, and by drawing inferences of such intent from the overall scheme of the CAA. Importantly for our purposes, such arguments were equally applicable, and made and rejected, in Highway Safety. The majority opinion in Highway Safety examined the enforcement scheme of the CAA to determine if the relevant portion of the statute preferred a unimodal enforcement approach, and concluded that it did not. 635 F.2d 1195, 1201-04 (6th Cir. 1980).

 

    The dissent concludes, "Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration [or intervening Supreme Court authority] is required to overrule a published opinion of the court. . . It is, frankly, not up to us to decide if Highway Safety is a 'bottle of dubious vintage.' Regardless of whether its 'contents turned to vinegar,' we must plug our noses and drink."

 

    Access the complete opinion and dissent (click here). [#Air]

 

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The Nature Conservancy, Inc. v. Larry Sims

May 21: In the U.S. Court of Appeals, Sixth Circuit, case No. 09-5634. Appealed from the Eastern District of Kentucky at Lexington. The Appeals Court explains that Larry and Marsha Sims appealed a district court order holding that the Sims violated a conservation easement that was part of a real estate purchase agreement regarding The Nature Conservancy's (the Conservancy) sale and the Sims's purchase of a 100.10 acre farm in Kentucky. The district court granted the Conservancy's summary judgment motion after determining that the Sims violated the easement by filling in a sinkhole and thereby substantially altering the topography of the land. In a subsequent judgment, the district court awarded the Conservancy $99,796.41 in attorneys' fees, costs, and expenses. The Sims now appeal both judgments.

 

    The Appeals Court ruled in a split decision that, "The district court properly ruled, however, that the Sims violated the plain language of the easement. The district court also did not abuse its discretion in awarding the Conservancy reasonable attorneys' fees and expenses." The real estate purchase agreement that included the conservation easement is at the heart of this litigation. Section 1 of the easement states that "the purpose of th[e] Easement [is] to assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation Values of the Protected Property."

 

    In the dissenting opinion, one Justice said, "My colleagues have overlooked and make no reference to or analysis of Section 3 of the easement agreement between the parties. This section allows the owner to engage in all normal rights of a landowner except those "expressly prohibited." The agreement does not expressly prohibit filling the sinkhole at issue. The sinkhole at issue was next to the defendant's home at his farm. It was an unsightly hole in the ground, a few feet deep, according to the pictures in the record, with half dead trees and brush growing out of it. Due to the irregular terrain, it could not be mowed, farmed, landscaped or used for a garden or anything else. It is an eyesore. . . No one in this case has attempted to show or describe what possible value the sinkhole has for purposes of historic and environmental preservation. . ."

 

    Access the complete opinion (click here). [#Land, #CA6]