Southern Union Co. v. United States

Jun 21: In the U.S. Supreme Court, Case No. 11-94. Appealed from the U.S. Court of Appeals, First Circuit [See WIMS 1/4/11]. Justices Sotomayor, Roberts, Scalia, Thomas, Ginsburg and Kagan were in the majority. Justice Breyer filed a dissenting opinion in which Kennedy and Alito joined. The case raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

 

    In summary, the majority says, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."

 

    In this case, Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mercury, and spread it around the facility and complex. The complex's residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.

 

    Violations of the RCRA are punishable by, inter alia, "a fine of not more than $50,000 for each day of violation." §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation's approximate start date (i.e., "on or about"), and argued that the court's instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require fact-finding by the court, in contravention of Apprendi.

 

    The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the "content and context of the verdict all together" that the jury found a 762-day violation.

    The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a "community service obligatio[n]" of $12 million. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court's conclusion that the jury necessarily found a violation of 762 days. But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. Other Circuits have reached the opposite conclusion. The majority Supreme Court said, "We granted certiorari to resolve the conflict. . . and now reverse. . . We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

    The High Court explains, "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490. The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not 'inflict[to] punishment that the jury's verdict alone does not allow.'"

    The dissenting opinion indicates, "Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that 'the finding of a particular fact' of this kind was ordinarily a matter for a judge and not necessarily 'within "the domain of the jury."' Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court's contrary conclusion, I believe, is a historical and will lead to increased problems of unfairness in the administration of our criminal justice system."

    Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the briefs filed in the case (click here). [#Haz, #Remed, #SupCt]

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The Save The Peaks Coalition v. U.S. Forest Service

Jun 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona [See WIMS 2/10/12]. The Appeals Court explains that Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's

fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, "grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."

 

    The Appeals Court indicates, ". . .we find that Shanker's conduct merits sanctions against him personally. As detailed in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), Shanker grossly abused the judicial process in bringing this case solely 'to ensure further delay and forestall development' at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028. Shanker acted with subjective bad faith. He engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). His intent was to harass Snowbowl. Therefore, we conclude that Shanker is subject to sanctions under § 1927. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869 F.2d at 1306."

 

    The Appeals Court says, "As an appropriate remedy, we hold Shanker 'personally liable for excessive costs for unreasonably multiplying proceedings.' Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney's fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl's favor against Shanker. Therefore, the court awards costs in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896) to Snowbowl, to be paid entirely by Shanker, counsel for Plaintiffs-Appellants. Thus, Snowbowl's Motion for Attorneys' Fees is denied, and its accompanying motion for costs is granted, as modified by this order."

 

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

 

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Pacific Rivers Counsel v. US Forest Service

Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565. Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, "This court's opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012) [See WIMS 2/6/12], is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied."

 

    According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental

Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, "The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians." On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

 

    The Appeals Court rules, "Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court."

 

    In a lengthy dissenting opinion, one Justice concludes, ". . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . ."

 

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

 

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U.S. v. California State Lands Commission

Jun 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56568. Appealed from the United States District Court for the Southern District of California. The California State Lands Commission (the Lands Commission) appeals the district court's final judgment in this eminent domain case, wherein the United States took a fee simple interest in about 32.42 acres of land (the Property) on behalf of the Navy, which has continuously leased this parcel since 1949. In condemning the Property, the United States sought to extinguish California's public trust rights. The Lands Commission contends that California's public trust rights cannot be extinguished by the United States' power of eminent domain.

 

    The Appeals Court notes that the Lands Commission does not dispute the United States' power to take and use the land without trust restrictions. Instead, it asks the Appeals Court to hold that California's public trust rights become "quiescent" while the United States owns the land but will "re-emerge" if the United States seeks to transfer the Property to a private party.

 

    The district court held that the United States' condemnation extinguished California's public trust on the entire parcel, and that the 27.54 acres which are filled can be conveyed to a private party free of any trust, but that the 4.88 acres that remained tidelands at the time of the taking are now subject to a Federal public trust and may not be conveyed to a private party.

 

    The Appeals Court said, "The issue before us is whether the United States can extinguish California's public trust rights when exercising its federal power of eminent domain. We hold that it can, and affirm the judgment of the district court." The Appeals Court explains further, "Having paid just compensation, the United States is entitled to the interest it sought in its complaint in condemnation: full fee simple, free of California's public trust. We have concluded that neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from taking that interest in the land unencumbered."

 

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

 

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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Jun 18: In the U.S. Supreme Court, Case Nos. 11–246 and 11–247. Appealed from the D.C. Circuit Court of Appeals. This 8-1 decision addresses a provision of the Indian Reorganization Act (IRA), 25 U. S. C. §465, that authorizes the Secretary of the Interior (Secretary) to acquire property "for the purpose of providing land for Indians." Ch. 576, §5, 48 Stat. 985. The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary's decision in a suit brought under the Administrative Procedure Act (APA), 5 U. S. C. §701 et seq. Patchak claims that the Secretary lacked authority under §465 to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino's operation.

 

    In brief summary, the Supreme Court ruled, "We consider two questions arising from Patchak's action. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act(QTA), 86 Stat. 1176. We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary's acquisition. We think he does. We therefore hold that Patchak's suit may proceed."

 

    The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michigan. Although the Band has a long history, the Department of the Interior (DOI) formally recognized it only in 1999. See 63 Fed. Reg. 56936 (1998). Two years later,the Band petitioned the Secretary to exercise authority under §465 by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band's application explained that the Band would use the property "for gaming purposes," with the goal of generating the "revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal government capable of providing its members with sorely needed social and educational programs."

 

    Access the complete opinion and dissent (click here). Access the docket for the case (click here). Access the briefs in the case (click here). Access the oral arguments transcript for the case (click here). [#Land, #MILand, #SupmCt]

 

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Mack Trucks, Inc. & Volvo Group v. U.S. EPA

Jun 12: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 12-1077, 12-1078, 12-1099. On Petitions for Review of a Final Rule of the United States Environmental Protection Agency. The Appeals Court explains that in January 2012, U.S. EPA promulgated an interim final rule (IFR) to permit manufacturers of heavy-duty diesel engines to pay nonconformance penalties (NCPs) in exchange for the right to sell noncompliant engines. EPA took the action without providing formal notice or an opportunity for comment, invoking the "good cause" exception provided in the Administrative Procedure Act (APA). The Appeals Court ruled, "Because we find that none of the statutory criteria for 'good cause' are satisfied, we vacate the IFR."

 

    In 2001, pursuant to Section 202 of the Clean Air Act, EPA enacted a rule requiring a 95 percent reduction in the emissions of nitrogen oxide from heavy-duty diesel engines.By delaying the effective date until 2010, EPA gave industry nine years to innovate the necessary new technologies. Most manufacturers of heavy-duty diesel engines, including Petitioners Mack and Volvo, invested hundreds of millions of dollars to develop a technology called "selective catalytic reduction" which meets the requirements. One manufacturer, Navistar, took a different approach and pursued a technology of "exhaust gas recirculation," which proved less successful and does not meet the requirement.

 

    In an effort to allow Navistar to continue selling its engines, without formal notice and comment, hurriedly promulgated the IFR on January 31, 2012, pursuant to its authority under 42 U.S.C. § 7525(g), to make NCPs available to Navistar. Petitioners each requested administrative stays of the IFR, protesting that EPA lacked good cause within the meaning of the APA. Petitioners also objected to the substance of the NCP, arguing that EPA misapplied its own regulatory criteria for determining when such a penalty is warranted. Navistar intervened on behalf of EPA, and claimed that Petitioners lacked standing to challenge the IFR.

 

    In summing up the case, the Appeals Court offered two observations: (1) "NCPs are meant to be a temporary bridge to compliance for manufacturers that have 'made every effort to comply.' United States v. Caterpillar, Inc., 227 F. Supp. 2d 73, 88 (D.D.C. 2002). As EPA itself has explained, NCPs are not designed to bail out manufacturers that voluntarily choose, for whatever reason, not to adopt an existing, compliant technology. . . Based solely on what EPA has offered in the IFR, it at least appears to us that NCPs are likely inappropriate in this case." (2) "As it is presented in the IFR, we are highly skeptical that the penalty and upper limit provided for in this NCP satisfy this congressional demand to protect compliant manufacturers."

 

    Following its observations, the Appeals Court concludes, "That being said, EPA is certainly free to make whatever findings it deems appropriate in the pending final rulemaking -- subject, of course, to this Court's review. For now, therefore, we simply hold that EPA lacked good cause for not providing formal notice-and-comment rulemaking, and accordingly vacate the IFR and remand for further proceedings."

 

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

 

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Chevron Corporation v. Weinberg Group

Jun 12: In the U.S. Court of Appeals, D.C. Circuit, Case No. 11-7097. Appeal from the United States District Court for the District of Columbia. The case involves subpoenaed documents by Chevron from the Washington, DC-based Weinberg Group, a scientific consulting firm working for Ecuadorian citizens in their case against Chevron for environmental damage there.

 

    The Weinberg Group asserted the attorney-client and work product privileges over some of the documents responsive to the subpoena. In the D.C. district court, Chevron moved to compel production of those documents. Chevron contended that the documents fell within the crime-fraud exception to the attorney-client and work product privileges. The D.C. district court found that the crime-fraud exception applied and granted Chevron's motion to compel.

 

    However, the Appeals Court explains that the D.C. district court relied almost entirely on a decision in favor of Chevron by the New York district court in the underlying fraud litigation. See Chevron Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011). While the Weinberg Group's appeal to this court was pending, however, the Second Circuit reversed the decision of the New York

district court. See Chevron Corp. v. Naranjo, 667 F.3d 232, 247 (2d Cir. 2012). The D.C. Appeals Court said, "Given that the D.C. district court relied on the decision of the New York district court and that the New York district court's decision was subsequently reversed by the Second Circuit, we must vacate the D.C. district court's decision and remand."

 

    Access the complete opinion (click here). [#All, #CADC]

 

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