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Minch Family LLLP v. Buffalo-Red River Watershed

Dec 15: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3223. According to the Appeals Court, during contentious litigation in Minnesota state court, a judge entered an order authorizing the Buffalo–Red River Watershed District (BRRWD) to "clean out" or remove accumulated silt and topsoil from a ditch running next to a road along the length of one of A. R. Minch's fields. The Minch Family LLLP later sued BRRWD in federal court under contending BRRWD exceeded the scope of the clean-out order by entering upon Minch's property. Minch alleged causes of action for trespass, nuisance, and the wrongful death of A. R. Minch. The district court granted appellees' motion for judgment on the pleadings' finding Minch's claims were: (1) barred by the Rooker-Feldman doctrine; (2) res judicata; and (3) insufficient to state causes of action as pled. The Appeals Court affirmed the district court ruling.

    Access the complete opinion (click here).

Heartwood, Inc. v. Elizabeth Agpaoa

Dec 13: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5761, appealed from the Eastern District of Kentucky at Lexington. As explained by the Appeals Court, Plaintiffs-Appellants Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively Heartwood) are non-profit corporations active in forest and species protection. Heartwood appeals the district court's judgment granting Defendants-Appellees Elizabeth L. Agpaoa, the Regional Forester for the Daniel Boone National Forest (Forest), and the U.S. Forest Service (collectively Forest Service) judgment on the administrative record. Heartwood claims that the Forest Service enacted the 2004 Forest Plan (Plan) for the Forest in violation of the procedures mandated by the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA).

 

    Specifically, Heartwood alleges that, in promulgating the Plan, the Forest Service failed to consider a "no commercial logging" alternative and account for the environmental effects of herbicide use through an environmental impact statement (EIS). Heartwood also challenges the Forest Service's environmental assessment (EA) for the 2003 Ice Storm Recovery Project (Project) in the Forest, undertaken pursuant to the Plan; on this issue, Heartwood argues that the EA inadequately addressed the effects of herbicide application in the Project. Heartwood brings these claims against the Forest Service, a federal agency, under the Administrative Procedure Act (APA).

 

    The Appeals Court reversed the district court's judgment which denied Heartwood's motion and instead entered judgment in full for the Forest Service; and remanded the case to the district court with instructions to "dismiss for want of jurisdiction." The Appeals Court said, "Unfortunately, Heartwood seems to have lost sight of the forest of constitutional standing for the trees of associational and agency standing, and it fails to allege with adequate specificity the central element of injury in fact"; and ruled, "Heartwood's standing affidavits are too general in their identification of 'site-specific activities [that] diminish[] or threaten to diminish their members' enjoyment of the designated' forest sub-sections, so Heartwood does not have standing to maintain this action." The Appeals Court cited Ctr. For Biological Diversity v. Lueckel, 417 F.3d at 537 (6th Cir. 2005).

 

    Access the complete opinion (click here).

Arrow Gear Company v. Downers Grove Sanita

Dec 10: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 09-1509, 09-4030. The Appeals Court explains that in 2008 the appellees, Arrow and Precision, brought separate suits under section 113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), seeking contribution -- seeking to shift some of the costs that Arrow and Precision had incurred, as a result of having been found liable for groundwater contamination, to other polluters of the same site.

 

    Those other polluters are the defendants in Arrow's and Precision's suits. The district court dismissed the suits as barred by res judicata [i.e. a matter already judged]. The Appeals Court said, "We have consolidated the appeals, but discuss only Arrow's appeal because Precision's presents no additional issues. We address issues of appellate and trial-court jurisdiction, res judicata, and interpretation of settlement agreements."

 

    In 2004 a class action, Muniz v. Rexnord Corp., was brought in federal district court on behalf of residents of the contaminated area against a number of the polluters, including Arrow, on a variety of grounds. The suit asked for damages, mainly for impairment of property values. The parties agreed in 2006 to a settlement of (in round numbers) $16 million. The defendants had then to allocate the expense among them, and they did so in a series of agreements.

 

    The Appeals Court said in its conclusion, "It would have been difficult to settle all possible claims by the cross-claiming defendants before their total liability was determined. So claim splitting -- allocation of the $16 million first, and of the additional $5 million (which will doubtless grow) second -- made sense, and the district court should not have forbidden it. True, the order dismissing Muniz had not mentioned the settlements, and some of them had postdated the dismissal. But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order.

 

    But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order. Were there doubt about the scope of the settlements, we would have to remand for further proceedings to still that doubt. But there is no doubt that the settlements confine release to claims by defendants against one another concerning the allocation of the $16 million. So the defendants have no defense of res judicata to the present suits, and the judgment of the district court is therefore reversed with instructions to reinstate the suits."

 

    Access the complete opinion (click here).

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National Association of Home Builders v. San Joaquin Valley

Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17309. In this important case, in response to levels of pollution that violated national air quality standards, the San Joaquin Valley Unified Air Pollution District adopted "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. The National Association of Home Builders (NAHB) sued the District, claiming that Rule 9510 is preempted by the Clean Air Act.

 

    The district court held that Rule 9510 is not preempted and the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "Though I agree with the majority opinion that § 209(e)(1) of the Clean Air Act (Act), 42 U.S.C. § 7410 et seq., does not preempt Rule 9510 promulgated by the San Joaquin Valley

Unified Air Pollution Control District (District), I respectfully dissent from Parts IV and V. In my view, Rule 9510 is preempted by § 209(e)(2) of Act because (1) the regulation does not qualify as an 'indirect source review program' under § 110(a)(5), since it directly regulates construction equipment (which are direct emissions sources); and (2) the regulation creates an emissions control 'standard' for construction equipment that has not been approved by the Environmental Protection Agency (EPA)."

 

    Access the complete opinion (click here).

Wild Fish Conservancy v. Salazar

Wild Fish Conservancy v. Salazar - Dec 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35531. The Appeals Court explains that it is "faced once again with the far-reaching effects of federal hydroelectric projects in the Columbia River Basin on the region's native fish species." It says the fish at the heart of this particular controversy is not salmon, as in most of the earlier cases, and the potential threat to its survival and recovery is not a hydroelectric dam but a hatchery project intended to mitigate a dam's impact. The legal action was brought by the Wild Fish Conservancy (the Conservancy), and centers on a biological opinion (BiOp) addressing the effects of the operations of the Leavenworth National Fish Hatchery (the Hatchery) on the bull trout. See U.S. Fish & Wildlife Service, Biological Opinion for the Operation and Maintenance of the Leavenworth National Fish Hatchery Through 2011 (2008) [hereinafter 2008 BiOp].

 

    The bull trout is listed under the Endangered Species Act (ESA), as threatened throughout its range. The 2008 BiOp, prepared by the U.S. Fish and Wildlife Service (the Service), concluded that the Hatchery's operations from 2006 to 2011 were not likely to jeopardize the continued existence of the bull trout. In a split decision, the majority Appeals Court ruled that, "Because the Service in several respects failed to articulate a rational connection between the facts found and the 'no jeopardy' conclusion, we reverse and remand."

 

    The majority concluded, "We conclude that the 2008 BiOp is arbitrary and capricious because the Service limited the analysis to a five-year period, failed to articulate a rational connection between the facts found and the conclusions made, and issued an incidental take statement lacking adequate monitoring and reporting requirements. Additionally, the Hatchery violated its substantive duty to ensure that its operations did not jeopardize the continued existence of the bull trout. We reverse and remand to the district court with directions to grant the Conservancy's motion for summary judgment and to grant injunctive relief until the Service complies with its obligations under the ESA."

 

    The separate, concurring in part and dissenting in part, opinion indicated, "In sum, the Service provided a rational basis for its no jeopardy conclusion. To conclude otherwise requires neglecting the environmental baseline and distrusting agency experts' analysis of the scope and relevance of continued population decline, mitigated by remedial agency action. I therefore disagree with my colleague's conclusion that the Service's analysis in the 2008 BiOp is irrational. For these reasons, I respectfully dissent from Parts II.A, II.B, II.E and III. of the majority opinion, but otherwise concur."

 

    Access the complete opinion and dissent (click here).

Carijano v. Occidental Petroleum Corp.

Dec 6: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56187 and 08-56270. The Appeals Court explains that the cross-appeals arise from the petroleum and oil exploration operations conducted by defendant Occidental Peruana (OxyPeru), an indirect subsidiary of defendant Occidental Petroleum Corporation (Occidental), along the Rio Corrientes in the northern region of Peru. 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. The majority Appeals Court said that Plaintiffs timely appeal the dismissal of their suit. Occidental cross-appeals from the district court's determination that its Rule 12 motion to dismiss Amazon Watch for lack of standing is moot.

 

    Also, the Appeals Court rules, "Because Occidental failed to meet its burden of demonstrating that Peru is a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum, the district court abused its discretion by dismissing the lawsuit without imposing mitigating conditions for the dismissal."

 

    In the split decision, the majority Appeals Court concluded, "Occidental had a substantial burden to persuade the district court to invoke the 'exceptional tool' of forum non conveniens [i.e.inappropriate forum] 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."

 

    The dissenting Judge indicated in his concurring in part, dissenting in part opinion, "I agree that conditions on dismissal might be appropriate. However, I would not re-analyze whether to dismiss on grounds of forum non conveniens from scratch, because dismissals for forum non conveniens may be reversed only when there has been a clear abuse of discretion. Creative Tech., Ltd. v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 699 (9th Cir. 1995). The district court considered the relevant public and private interest factors, its findings are supported in the record, and its balancing of these factors was not unreasonable. Thus, its decision deserves substantial deference."

 

    Access the complete opinion (click here).

Center For Biological Diversity v. USDA

Dec 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17233. The United States Department of Agriculture (USDA) appealed the district court's grant of summary judgment in favor of the Center for Biological Diversity (CBD), which required USDA, under the Freedom of Information Act (FOIA), to disclose the GPS coordinates of wolf depredations to which it had responded. The district court held that the coordinates were not exempt from disclosure under FOIA Exemption 3 or Exemption 6.

 

    The Appeals Court reversed the district court ruling and said, "Exemption 3 applies because Section 8791 of the Food, Conservation, and Energy Act of 2008 (FCEA) exempts from disclosure such geospatial data and applies to this case even though it took effect after the USDA withheld the coordinates." The Appeals Court said further that, "In light of this conclusion, we do not reach the question of whether Exemption 6 also applies."

 

    Access the complete opinion (click here).

Humane Society Of The United States v. Locke

Nov 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-36038, appealed from the District of Oregon. The Appeals Court explains that in March 2008, the National Marine Fisheries Service

(NMFS) authorized the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam. NMFS made the decision under section 120 of the Marine Mammal Protection Act (MMPA), which allows "the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks" that have been listed as threatened or endangered under the Endangered Species Act (ESA). 16 U.S.C. § 1389(b)(1).The Appeals Court said, "We must decide whether the agency's action was 'arbitrary' or 'capricious' within the meaning of the Administrative Procedure Act (APA), as well as whether the agency violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement.

 

    Following its analysis, the Appeals Court ruled, "We affirm summary judgment in favor of defendants on plaintiffs' NEPA claim. We reverse summary judgment on plaintiffs' MMPA claim and remand to the district court with instructions to vacate the decision of NMFS and remand to NMFS. We vacate the district court's order granting defendants' motion to strike. Each party shall bear its own costs on appeal."

 

    Access the complete opinion (click here).

Loye v. County of Dakota

Nov 17: In the U.S. Court of Appeals, Eighth Circuit, Case No. 09-3277. The Appeals Court explains the background of the case as follows: On the afternoon of September 6, 2004, boys stole two bottles of mercury from an abandoned building, took this hazardous substance to a playground near the Rosemount Woods mobile home park, and released it while playing. Before police from the City of Rosemount, Minnesota were notified and arrived at the scene, people, homes, and vehicles were contaminated. Police officers knocked on doors to identify those who had been exposed, and the City contacted state and local agencies to help deal with the environmental and public health emergency. The Special Operations Team (SOT), a disaster response unit created by an agreement between Dakota County and eleven cities including Rosemount, arrived at about 9:00 p.m. and set up a decontamination tent.

 

    Shortly after 11:00 p.m., the SOT began decontaminating forty-nine persons who had been exposed to mercury, including plaintiff and others, who are deaf. The next day, nurses from the Dakota County Department of Public Health began attending to the victims' health, housing, and financial needs. The victims were provided temporary housing while their quarantined homes were decontaminated. By the end of the month, the health and environmental hazards were successfully abated.

One year later, plaintiffs filed a discrimination suit saying defendants "failed to provide ASL [American Sign Language] interpreters . . . for all of the services they were providing to the public."

 

    At the close of discovery, the district court granted Dakota County's motion for summary judgment, concluding that Plaintiffs received "effective communication, and therefore meaningful access to the programs and services offered during three relevant periods: (1) the emergency decontamination process; (2) public group meetings between victims and representatives of various government agencies conducted the following week; and (3) additional private meetings between Dakota County Public Health Nurse Gerilee Greeley and individual plaintiffs."

 

    The Appeals Court affirmed the district court decision and said in part, " . . . as we have explained, the legal standard is effective communication that results in meaningful access to government services. There is no evidence that Plaintiffs failed to obtain any service because Nurse Greeley's advice or assistance was not understood, and no evidence Nurse Greeley ignored a specific request for more effective communication or refused a specific request for an ASL interpreter. . ."

 

    Access the complete opinion (click here).

Energysolutions, LLC. v. State of Utah

Nov 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-4122, 23, & 24. The issue in this case is whether the Northwest Interstate Compact on Low-Level Radioactive Waste allows its member states to exclude low-level radioactive waste from disposal at a Utah site. EnergySolutions is the owner and operator of a facility for the disposal of low-level radioactive waste located in Clive, Utah. Utah is a member state of the Northwest Compact, and required EnergySolutions to obtain permission pursuant to the Compact for the importation and disposal of low-level waste from a decommissioned reactor in Italy.

 

    The member states, including Utah, voted to deny this approval, based on exclusionary authority it claimed through the Federal statute approving the terms of the Compact. EnergySolutions contends the Clive Facility should not be subject to the authority of the Northwest Compact. It claims the Compact has limited authority only over regional disposal facilities, which does not include the Clive Facility. The district court concluded the Northwest Compact does not regulate the disposal of waste at the Clive Facility.

 

    The Appeals Court disagreed and said, "The terms of the Compact control in this situation, and the member states were within the bounds of their authority when they denied permission regarding this waste." In its conclusion the appeals Court ruled, "

Like the Supreme Court, we are hesitant to 'order relief inconsistent with the express terms of a compact.' Alabama, 130 S. Ct. at 2313 (quoting New Jersey v. New York, 523 U.S. 767, 811 (1998)) (internal punctuation omitted). Concluding the Northwest Compact is statutorily and constitutionally permitted to exercise exclusionary authority over the Clive Facility, we reverse and remand for proceedings consistent with this opinion."

 

    Access the complete opinion (click here).

Shieldalloy Metallurgical Corp v. NRC

Nov 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1268. As the Appeals Court explains, under § 274 of the Atomic Energy Act of 1954 as amended, Pub. L. 86-373, 73 Stat. 688 (1959) (AEA), the Nuclear Regulatory Commission (NRC) is authorized to transfer regulatory authority over various categories of nuclear materials within a state to the state government, provided that the state's regulatory program is "compatible with the [NRC's] program" and is "adequate to protect the public health and safety." Shieldalloy Metallurgical Corporation, which for a decade has been seeking NRC approval for a plan to decommission a New Jersey facility, challenges the NRC's recent transfer of regulatory authority to that state, arguing that New Jersey's program is incompatible with the Federal scheme and that the transfer of authority was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The Appeals Court agreed with the company.

 

    The Appeals Court said, ". . .the NRC's insufficient explanations on the applicability of criterion 25 [commitment to the uninterrupted "processing of license applications"] and the retention of jurisdiction render its transfer of regulatory authority to New Jersey arbitrary and capricious. We therefore grant Shieldalloy's petition, vacate the NRC's transfer of authority, and remand for proceedings consistent with this opinion."

 

    Access the complete opinion (click here).

Earth Island Institute v. Carlton (USFS)

Nov 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-16914. Earth Island Institute (Earth Island) appealed interlocutorily the district court's order denying its motion for a preliminary injunction seeking to enjoin the United States Forest Service (USFS) from conducting post-wildfire logging in the Plumas National Forest. The district court concluded: that the applicable forest plan required only the assessment of habitat for the black-backed woodpecker (woodpecker) at the project level; that the Forest Service met that requirement; that the Forest Service adequately responded to Earth Island's dissenting scientific opinions in the project adoption phases; and that the Forest Service's tree mortality guidelines were not legally enforceable. In a split decision, the Appeals Court majority affirmed the district courts decision.

 

    The majority concluded, "In short, the district court used the correct standard for analyzing Earth Island's likelihood of success on the merits and did not abuse its discretion in finding that Earth Island failed to show that it was likely to succeed on the merits of its NFMA claims. . . the district court correctly analyzed the likelihood of irreparable harm in sufficient depth without impermissibly conflating this with the other required factors. . . The court concluded that if the injunction was granted, the public would lose the immediate benefits of the reforestation efforts. It did not abuse its discretion in doing so."

 

    In a dissenting opinion, one of the Justices said, "The majority's denial of a preliminary injunction, like the district court's before it, rests on two fundamental errors. First, the majority concludes that the Forest Service has no obligation to ensure species viability in the Plumas National Forest despite numerous clear statements to the contrary in the Plumas National Forest Plan. Second, it concludes that the RHT Hazard Tree Marking Guidelines are not binding on the Forest Service despite the fact that the Forest Service itself acknowledges that they are. The district court rested its denial of a preliminary injunction almost entirely on its erroneous conclusions regarding Earth Island's likelihood of success on the merits. I would therefore grant a temporary injunction and remand to the district court to reconsider Earth Island's application. . ."

 

    Access the complete opinion (click here).

West Virginia Highlands Conservancy v. Huffman (WVDEP)

Nov 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1474. The West Virginia Department of Environmental Protection (WVDEP) appealed an injunction requiring it to obtain National Pollutant Discharge Elimination System permits under the Clean Water Act (CWA) for reclamation efforts at abandoned coal mining sites. The injunction was based on the district court's conclusion that the plain language of the CWA and applicable U.S. EPA regulations require such a permit. The Appeals Court said the trial court's ruling was correct.

 

    The text of the CWA, as well as the corresponding regulations issued by EPA, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. The Appeals Court said, "Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope. At bottom, WVDEP's arguments stem from little more than policy disagreements with the statutory text. Finding that to be an insufficient basis for deviating from the law as written, we affirm the judgment of the district court."

 

    The Appeals Court states further in its conclusion, "In sum, WVDEP's state law obligations to take over bond forfeiture sites and engage in reclamation efforts invoke Clean Water Act obligations to obtain NPDES permits. Permit requirements are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the problems private companies leave behind. Or WVDEP can address the other side of the equation and increase the funds available for reclamation, either by raising the SRF tax on coal or enlarging the bonds mining companies must post before beginning their work. Instead of availing itself of these various options, however, WVDEP asks us to bring about the very same results by misconstruing the Clean Water Act. There are better audiences for that invitation. We therefore affirm the judgment of the district court."

 

    Access the complete opinion (click here).

Akiak Native Community v. U.S. EPA

Nov 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-74872. Petitioner Akiak Native Community and other petitioners and intervenors (collectively Petitioners or Akiak) seek review of the approval by the United States Environmental Protection Agency (EPA) of the State of Alaska's application to assume responsibility for administration of portions of the National Pollutant Discharge Elimination System (NPDES), pursuant to section 402(b) of the Clean Water Act (CWA). Petitioners contend that EPA did not adequately ensure: (1) that Alaska state law will provide the same opportunities for judicial review of permitting decisions as required by federal law; (2) that the State has the necessary enforcement tools to abate permit violations; and, (3) that subsistence resources will be protected as mandated by the Alaskan National Interest Lands Conservation Act (ANILCA).

 

    In a split decision, the Appeals Court majority said, "We conclude that the EPA's decision to transfer authority to the State of Alaska was not arbitrary or capricious. Accordingly, we deny the petition for review." In part, the majority said, " The Supreme Court's recent decision in Home Builders [National Association of Home Builders v. Defenders of Wildlife (No. 06-340), See WIMS 6/26/07] provides guidance as to whether the EPA's transfer of the NPDES program to the State of Alaska triggers the requirement of a subsistence evaluation under ANILCA. In Home Builders, public interest groups challenged the EPA's transfer of the NPDES program to the State of Arizona, arguing that the EPA failed to consider the effects such transfer would have on endangered and threatened species under section 7(a) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a). 551 U.S. at 649. The Supreme Court held that requiring the EPA to comply with section 7(a) of the ESA would place the CWA and the ESA in conflict, for it would add a tenth criteria to the nine established criteria a state program must meet for transfer approval under section 402(b) of the CWA, 33 U.S.C. § 1342(b). Id. at 663-64. The Court noted that '§ 402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer "shall" be approved if the specified criteria are met.' Id. at 663. The Court concluded that requiring compliance with section 7(a) would "effectively repeal § 402(b)'s statutory mandate by engrafting a tenth criterion onto the CWA."

 

    The dissenting (in part) decision said, "I agree that the ANILCA provision and the lack of administrative penalties in Alaska law do not undermine the grant of NPDES authority from the EPA to the State of Alaska, but I strongly disagree with the majority's conclusion that Alaska's 'loser pays' attorney's fee system will not adversely affect the public's ability to bring state court challenges to permitting decisions."

 

    Access the complete opinion and dissent (click here). Access the Supreme Court decision in Home Builders, the Syllabus and the dissenting opinions (click here).

Animal Welfare Institute v. Martin, Commissioner

Oct 20: In the U.S. Court of Appeals, First Circuit, Case No. 09-2643. Appealed from the District Court of Maine in Bangor. The case is about the Canada lynx. The Endangered Species Act makes it unlawful to "take" a member of an endangered species. By regulation, it is also unlawful to "take" a "threatened" species, i.e. one likely to become endangered in the foreseeable future. The term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."

 

    The Canada lynx is a wild cat, weighing about 20 pounds, which eats small animals, particularly the snowshoe hare, and is most commonly found in Canada. It is not listed as an endangered species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the federal Department of the Interior listed the Canada lynx as a "threatened" species throughout its U.S. range -- certain states contiguous to Canada, as well as certain Western states. In Maine, a listed state, Canada lynx are found primarily in the northern portion of the state, in state Wildlife Management Districts (WMD) 1 through 11. Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other furbearing animals.

 

    The appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species, in WMDs 1 through 11. Plaintiffs argued this relief was necessary to prevent "incidental takes" of lynx in these traps. The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. The Appeals Court affirmed the district court decision.

 

     In its opinion, the Appeals Court indicated that the Animal Welfare Institute (AWI) argues the district court erred in not granting other relief, such as a new working group or new regulations. The Appeals Court said, "This argument fails because AWI expressly disavowed such remedies before the district court. It may well have done so for tactical reasons, preferring to stress the

inadequacy of other remedies in order to strengthen its case for injunctive relief against foothold traps. Parties are held to their choices and AWI's bait and switch tactics in the courts are to be deplored, not rewarded. The judgment for defendants is affirmed. Costs are awarded to defendants."

 

    Access the complete opinion (click here).

Sierra Club v. Abigail Kimbell (U.S. Forest Service)

Oct 18: In the U.S. Court of Appeals, Eighth Circuit, Case No: 09-1639, appealed from U.S. District Court for the District of Minnesota - Minneapolis. 

 

    In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the forest plan). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, Sierra Club) sought judicial review of the forest plan in the district court. As relevant to the appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act (NEPA). In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness (BWCAW). The district court determined that the Forest Service had considered adequately the impacts on the nearby BWCAW wilderness area in accordance with NEPA, and therefore granted the Agency's motion for summary judgment. The Appeals Court affirmed the district court decision.

 

    In final summary, the Appeals Court said, ". . .the agency's clear intention to act with neutrality towards the BWCAW, the evaluation of specific impacts to the wilderness area (including certain 'edge effects'), and the inclusion of the BWCAW within broader environmental analyses persuade us that the Forest Service took the 'hard look' required of it under NEPA. We thus conclude that the Forest Service did not act arbitrarily or capriciously in its development of the FEIS [final environmental impact statement]."

 

    Access the complete opinion (click here).

U.S. v. State of New York & Cinergy Corp

Oct 12: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3344. More than a decade ago the Environmental Protection Agency brought this suit against affiliated owners (i.e. Cinergy et al) of a number of coal-fired electric power plants in the Midwest. The suit claims that Cinergy violated section 165(a) of the Clean Air Act, 42 U.S.C. § 7475(a), by modifying a number of the plants without first obtaining from the agency a permit that the agency contends was required by a regulation, 40 C.F.R. § 52.21(a)(2)(iii), because the modifications were "major" and would produce increases in emissions of nitrogen oxide and sulfur dioxide.

 

    Cinergy argued; the regulation does not require a permit for modifications unless they will increase the hourly rate at which a plant can emit pollutants, even if they will increase the plant's annual emissions by enabling the plant to be operated for more hours during the year. The district judge rejected Cinergy's interpretation. Without the required permit, Cinergy was liable for increased pollution caused by the modifications, and faced the prospect of an injunction that would require it to shut down the plants, plus civil penalties of $25,000 for each day that it had violated the permit requirement.

 

    Cinergy took an interlocutory appeal under from the judge's ruling on the hourly capacity versus actual-emissions interpretation of the regulation. The Appeals Court affirmed that district court decision, agreeing that the regulation required application of the actual emissions standard. United States v. Cinergy Corp., 458 F.3d 705 (7th Cir. 2006). However, the Appeals Court says that one point in that opinion is worth repeating because it bears on an issue in the present appeals.

 

    The Appeals Court indicates, "Cinergy's hourly-capacity interpretation would if adopted give a company that had a choice between making a physical modification that would increase the hourly emissions rate and one that would enable an increase in the number of hours of operation an incentive to make the latter modification even if that would produce a higher annual level of emissions. For that modification would elude the permit requirement and thus shelter the company from liability for the increased emissions. It would also distort the choice between rebuilding an old plant and replacing it with a new one. The Clean Air Act treats old plants more leniently than new ones because it is expensive to retrofit a plant with pollution-control equipment. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901, 909 (7th Cir. 1990).

 

    "But there is an expectation that old plants will wear out and be replaced by new ones that will thus be subject to the more stringent pollution controls that the Act imposes on new plants. A spur to replacing an old plant is that aging produces more frequent breakdowns and so reduces a plant's hours of operation and hence its output unless the owner invests in continuous, and cumulatively costly, replacement of worn-out parts to keep the plant going. Cinergy's interpretation would if adopted have given the company an artificial incentive instead to renovate its old plants, and by so doing increase their hours of operation, rather than to replace the plants even if replacing them would cost less. For by renovating the plants rather than replacing them, the company could increase their output without having to invest in measures for preventing the enhanced output from generating increased pollution."

 

    The current case follows a jury trial where the verdict was mixed requiring fourteen modification projects at three plants which were at issue; the jury found liability with respect to four of the projects, all at Cinergy's plant in Wabash, Indiana, and all undertaken between 1989 and 1992. These modifications, the jury found, had been likely to increase the plant's annual emissions of sulfur dioxide and nitrogen oxide and therefore Cinergy should have sought a permit.

 

    However, on appeal, the Appeals Court ruled, "Without expert testimony to support an estimate of actual emissions caused by the modifications, the government cannot prevail with respect to the charge of nitrogen oxide pollution; for the government doesn't contest Cinergy's claim that if the testimony of the government's experts should have been excluded, Cinergy is entitled to judgment. Earlier we said that the government cannot prevail with respect to the plant's emissions of sulfur dioxide. Therefore the judgment must be reversed with instructions to enter judgment for Cinergy. The parties have made other arguments, but they are either too feeble to merit discussion. . . The cross-appeal is therefore dismissed, while the judgment in the government's favor is, as we said, reversed."

 

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Western Watersheds v. Interior Board Of Land

Oct 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35708. In brief summary, the appeal involves the interplay between the issuance or renewal of Bureau of Land Management (BLM) grazing permits and the fee-shifting provisions of the Equal Access to Justice Act (EAJA). Western Watersheds Project (Western Watersheds) appeals a summary judgment determination that EAJA fees were not available to Western Watersheds because its environmental claims were brought in a grazing permit renewal proceeding. The Appeals Court agreed with the district court's reasoning and affirmed its decision. The Appeals Court concluded, "Because Western Watersheds' commendable efforts to insure environmental compliance occurred within a proceeding Congress excepted from EAJA recovery, we affirm the district court's determination in that regard."

   

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The Wilderness Society v. USFS

Sep 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. The Appeals Court issued an order indicating, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc."

 

    According to a supplemental brief filed by the appellant "Recreation Groups," the panel has asked the parties to file supplemental briefs "on the following question: Whether this case should be heard en banc to decide if this court should abandon the 'federal defendant rule,' which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." The Recreation Groups stated that the "question framed by the panel should be heard en banc. The Court should abandon the Federal Defendant Rule.

 

    The Recreation Groups explain that the panel's question necessitates two distinct inquiries. First is the question of whether en banc review is warranted. This question typically arises in the context of a petition for rehearing filed by one on the losing end of the panel's decision. The less common context here, through a panel call prior to issuing a decision, implies the importance of the question presented and the need for en banc determination.

 

    The Groups indicated that, "It is apparent that the circuit courts are split on the applicability of the Federal Defendant Rule." They cite decisions by the 10th, 5th and 1st circuits. The Groups conclude in their brief, "The Court should convene en banc to consider the ongoing validity of its unique Federal Defendant Rule. Should the Court consider the question en banc the Recreation Groups will gladly submit additional briefing or argument, which, in addition to the information already submitted, will demonstrate that the Federal Defendant Rule disserves all nonfederal interests, federal defendants and the judiciary in resolving important federal lands management questions."

 

    The Western Environmental Law Center disagreed and said, "If this Court wishes to review the federal defendant rule, it should do so in a case that presents the inconsistencies and problems with the rule, rather than in a case such as this one, which is riddled with other procedural issues. Moreover, the district court's denial of intervention in this case should be affirmed regardless of the federal defendant rule, thus making review of the rule almost peripheral to the outcome of this case. In sum, this Court should deny en banc review of the federal defendant rule in this case."

 

    Access the Order (click here). Access the supplemental briefs (click here).

Kurt Meister v. U.S. Department of Agriculture

Sep 29: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-1712. The Appeals Court says that an agency is not entitled to deference simply because it is an agency. It is true that agencies are more specialized than courts are. But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it. And that means, among many other things, that the agency must apply -- rather than disregard -- the relevant statutory and regulatory criteria.

 

    Kurt Meister, a Michigan attorney appearing pro se [representing himself], argues that the United States Forest Service disregarded the relevant criteria here. Specifically, he claims that the Service failed to comply with several of its own regulations and one federal statute in developing its 2006 management plan for the Huron-Manistee National Forests in Northern Michigan. For the most part, we agree with him; and to that extent we reverse the district court's entry of judgment in the Service's favor and remand the case so that the Service may comply with those requirements forthwith.

 

    The case concerns the Service's management of recreational activities in the Huron-Manistee National Forests. The Forests occupy about 970,000 acres on each side of the northern one-third of Michigan's Lower Peninsula. In the east, the Huron National Forest ranges between 12 and 30 miles long from north to south, and stretches 60 miles wide from west to east, reaching the shores of Lake Huron. In the west, the Manistee National Forest is about 75 miles long and 40 miles wide, reaching Lake Michigan near Manistee.

    The Service issued a management plan for the Forests in 1986. In 2003, the Service published a notice of intent to revise the plan. The Service thereafter held public meetings and solicited public comments as to how to revise the plan. Meister commented on the Plan throughout its development. Those comments reveal fluency with the language of the relevant statutes and regulations; and they explained in considerable detail why Meister thought the Service was not meeting its obligations under the law. His principal comment was that, in developing the Plan, the Service had disregarded certain processes prescribed in its own regulations, so as to favor gun hunters and snowmobile users over other persons—for example, hikers and birdwatchers -- who use the Forests for quiet, solitary activities. He also commented that the Service should close more areas of the Forests to motorized activity than the Service seemed likely to close in the Plan. The Appeals Court said, "It appears that the Service disagreed with all of Meister's comments." Following an administrative appeals, Meister filed suit in district court and the district court granted the Service's motion, holding in general terms that the Service had complied with the applicable regulations. The district court denied Meister's motion.

 

    The Appeals Court summarize its holdings saying, "First, the Service's estimates of snowmobile and cross-country visitors to the Forests are arbitrary. . . Second, the Service has not complied with the requirement that it coordinate its recreational planning with that of the State of Michigan with the aim (to the extent feasible) of "reducing duplication in meeting recreation demands" with respect to gun hunting and snowmobiling. . . Third, the Service's reasons for keeping pre-designation and club trails open to snowmobile use are arbitrary. . . Fourth, the Service violated the National Environmental Policy Act when it failed to consider whether to close Primitive and Semiprimitive Nonmotorized areas to gun hunting and snowmobile use, as Meister has proposed."

 

    The Appeals Court ruled, "Each of these failures was material to the Plan's development. To that extent, the Plan's approval was arbitrary or without observance of procedures required by law. Given that holding, we have authority to 'set aside' the Plan. . . We choose not to exercise that authority today, but instead grant the Service a reasonable time to adopt a plan that complies with the law. Ninety days from the date of our mandate seems to us ample time for that compliance. The district court may extend that period upon some showing that the court finds compelling; but in any event the Service shall comply forthwith. The district court's judgment is reversed with respect to the claims summarized . . . Meister is entitled to judgment on those claims to the extent described . . . and the claims are remanded to the district court for further proceedings consistent with this opinion. The district court's judgment is otherwise affirmed."

 

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