Rio Grande Silvery Minnow v. Bureau of Reclamation

Mar 6: In the U.S. Court of Appeals, Tenth Circuit, Case No. 05-2293. The Middle Rio Grande Conservancy District (MRGCD) challenges a final judgment entered on its cross-claims brought pursuant to the Federal Quiet Title Act of 1972 (QTA), 28 U.S.C. § 2409a, in favor of the Secretary of the Interior Ken Salazar, et al (collectively federal appellees).

 

    Specifically, following a bench trial, the district court held that MRGCD's claims were time-barred. The court ruled in the alternative that, even if its claims were not time-barred, MRGCD was judicially estopped from claiming that it owned the properties in question, and, furthermore, the Federal appellees were entitled to judgment on the merits. As to the limitations issue, the Appeals Court agreed with the district court that MRGCD's quiet-title action is time-barred. The Appeals Court said, however, "that the district court did not have jurisdiction to decide the merits of that action. Therefore, we remand to the district court with instructions to vacate the portion of its judgment that resolves the merits of MRGCD's quiet-title action and to enter judgment on its jurisdictional dismissal of the claim."

 

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West Bend Mutual Ins v. Federated Mutual Ins

Mar 25: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-2519. Plaintiff-appellant West Bend Mutual Insurance Company (West Bend) appeal from the grant of summary judgment in favor of appellees, who consist of a group of insurance companies that includes the United States Fidelity and Guaranty Company (Fidelity) and Federated Mutual Insurance Company (Federated). West Bend initially sued the defendants for breach of contract because Federated declined to defend a mutual insured in a class action alleging that insured's gas station contaminated groundwater in a residential neighborhood.

 

    The case revolves around "whether the pollution exclusion contained in Federated's policy effectively limited coverage for gasoline spills under Indiana law." The district court found that a clause in Federated's policy excluded coverage for this type of claim and granted summary judgment in favor of Federated, Fidelity, and other insurers. West Bend appealed the judgment as it applies to Federated and the Appeals Court, in a 2-1 split decision, affirmed the district court decision.

 

    The majority Appeals Court said, ". . .despite weak wording, the Federated products-hazard clause covered only knowingly completed market transactions and abandoned product. . . There is no doubt that the Bowens action was predicated on accidental leak of gasoline from MDK's storage tanks and West Bend never contended that the gas station abandoned its product. Therefore, the Federated Umbrella policy does not provide an independent source of recovery for the appellants."

    The dissenting Justice indicated, "I agree with my colleagues that the pollution exclusion in Federated's 2001-2003 CGL policy bars coverage under that policy. I do not agree, however, that the Indiana Supreme Court's decision in B & R Farm Services, Inc. v. Farm Bureau Mutual Insurance Co., 483 N.E.2d 1076 (Ind. 1985), precludes coverage under Federated's 2001-2002 umbrella policy.

That policy provides additional insurance for losses covered under '[t]he 'products-completed operations hazard' anywhere in the world.'"

   

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).] 

National Mining Association v. MSHA

Mar 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1241. The National Mining Association (NMA) and the Methane Awareness Resources Group (MARG) (hereinafter, together "industry") petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust. The decision, announced May 20, 2008, represented a change in MSHA's earlier expressed intent to issue a proposed rule to convert the final DPM exposure standard from a total carbon (TC) to an elemental carbon (EC) measurement. See Diesel Particulate Matter Exposure, Notice of Enforcement of DPM Final Limit and Withdrawal of Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20, 2008) (2008 Notice).

 

    On the same date, MSHA issued Program Policy Letter P08-IV-01 (2008 Policy Letter) describing how it intended to enforce the DPM standard. Industry contends MSHA's decision was arbitrary and capricious because it inadequately explained and was unsupported by scientific data, contrary to a 2002 settlement and to MSHA's statements to this court, and without public notice or opportunity to comment. MARG individually challenges the failure of the National Institute of Occupational Safety and Health (NIOSH) to release a study on DPM. 

 

    The Appeals Court denied the industry petitions and dismissed MARG's individual challenges for lack of jurisdiction. In this complex case, the Appeals Court challenges NMA's position on a number of fronts and says: "NMA's suggestion that MSHA's 'misrepresentations,' Pet'r NMA Br. 22, albeit unintentional, cast a cloud over the legitimacy of the DPM standard of 160 TC does not advance its position" ; "Industry is on no firmer ground in contending that the 2008 Notice's withdrawal of MSHA's rulemaking intent violated the terms of the 2002 Settlement arising from challenges to the 2001 Rule" ; ". . .industry repudiated the 2002 Settlement when it petitioned for review of the 2001 Rule in Kennecott. . . MSHA was no longer bound by the 2002 Settlement when it issued the 2008 Notice" ; "NMA is mistaken when it suggests that on the basis of the Noll-Bugarski Study, MSHA effectively 'repromulgated the 160 TC standard'" ; and "the 2008 Notice was not subject to APA notice and comment procedures."

 

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Milwaukee Metropolitan v. American International Specialty

Mar 10: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1645, 09-1715 & 09-1783. The Milwaukee Metropolitan Sewerage District is responsible for flood control and wastewater treatment in the greater Milwaukee area. As part of a flood control project, the District needed to acquire from Milwaukee County a piece of real estate along Lincoln Creek. The nominal asking price was $1.00. In anticipation of possible pollution clean-up costs, the project manager recommended obtaining insurance coverage, which the District directed its insurance agency to acquire. After a policy was issued, the District acquired title to the land. Soon thereafter, the District encountered significant pollution on the land. But when it submitted a claim to its environmental liability insurer, American International Specialty Lines Insurance Company (AISLIC), for costs incurred in removing the pollution, the insurer denied coverage.

    The District then sued AISLIC in Wisconsin State court seeking damages under several state law claims. Following removal to Federal court and a bench trial, the district court concluded that coverage for the pollution was appropriate. The court reformed the District's insurance policy with AISLIC to provide coverage for the pollution removal costs and entered judgment for $226,468.51

in favor of the District. The court also entered judgment in the same amount for AISLIC on its indemnity claim against Crump Insurance Services of Illinois, Inc. (Crump). AISLIC and Crump appeal from the district court's judgment, and the District cross-appeals the judgment and the denials of its post-trial motions.

 

    The Appeals Court reversed the judgment of the district court and remanded with instructions to enter judgment for AISLIC on the District's reformation claim and to dismiss AISLIC's indemnity claim against Crump as moot. The Appeals Court also dismissed the District's cross-appeal as moot. The Appeals Court explained further and said, ". . .the record indicates that the District knew that the policy would not include 'Lincoln Creek' as an insured property. From the very beginning of the District's efforts to obtain coverage for the Parcel, its agent Sedgwick was concerned that the information it was providing to Crump might not be sufficient for AISLIC to decide whether to provide coverage. . . Because its agent . . . knew that 'Lincoln Creek' would not be covered unless the District owned or operated the land, the District cannot reasonably claim to have proceeded under a mistake that the policy would cover the Parcel before satisfying that requirement. . ."

 

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Native Ecosystems Council v. Tidwell (Forest Service)

Mar 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35890. Plaintiffs-Appellants Native Ecosystems Council, et al (collectively NEC) appeal the district court's summary judgment in favor of Defendants-Appellees Tom Tidwell, the United States Forest Service, et al (collectively Forest Service); Defendants-Intervenors-Appellees Madison County and Beaverhead County; and Intervenors-Appellees Sitz Angus Ranch, et al (collectively Intervenors-Appellees). NEC argues that the district court erred in finding that Forest Service approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest complies with the Forest Service's obligation to ensure species diversity as required under the National Forest Management Act (NFMA). It also contends that the district court erred in concluding that the Environmental Assessment undertaken by the Forest Service project satisfied the National Environmental Policy Act (NEPA).

 

    The Appeals Court ruled, "We agree with NEC on both counts. Because the Forest Service's environmental assessment was

based on a nonexistent management indicator species (MIS), its habitat proxy analysis was not reliable. The Forest Service

also failed to take the requisite 'hard look' at the project as required by NEPA. We therefore reverse the district court's summary judgment in favor of the Forest Service, and remand for further proceedings consistent with this opinion."

 

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MacClarence v. EPA

Mar 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-72756. Bill MacClarence petitioned the court for a review of an order the U.S. EPA Administrator denying his request that the Agency object to the issuance of a Clean

Air Act Title V permit for pollutant-emitting activities at Gathering Center #1 (GC 1), an oil and gas processing facility in Prudhoe Bay. The Alaska Department of Environmental Conservation's (ADEC) granted the permit to British Petroleum Exploration (Alaska), Inc.'s (BP), which owns GC 1. The Appeals Court said that because the Administrator's denial of MacClarence's request "was not arbitrary or capricious, we deny the petition."

 

    By way of background, the Prudhoe Bay Unit (PBU) is located on the North Slope of Alaska and extends over 300 square miles. It consists of a series of oil and gas facilities, including thirty-eight drill sites or "well pads" and six production centers, as well as support facilities for PBU workers. GC 1 is one of the six production facilities at the PBU. BP owns approximately 26.35% to 50.7% of the facilities at the PBU, including GC 1, and operates all of the PBU facilities pursuant to an agreement with the other owners. The PBU facilities are engaged in a continuum of oil and gas refining activities, from drilling to sale. Well pads in the PBU pump "three-phase" crude oil from the tundra beneath the PBU facilities. This oil is transferred to the production centers, including GC 1, where it is separated into processed crude oil, water, and hydrocarbon gases. The processed crude oil is pumped from the production centers to the Trans-Alaska Pipeline for sale, while other facilities at the PBU dispose of or re-inject the by-products of the production process.

 

    MacClarence argues that the permit did not comply with the CAA because ADEC, in the final draft permit for GC 1, had not properly "aggregated" stationary sources of air pollution in the PBU. The Appeals Court indicates, "As the record for this case reveals, the aggregation of pollutant-emitting activities for the purposes of designating a "major source" or "major stationary source" is not a clear-cut task. Under the governing regulations, however, determinations regarding 'major sources' for purposes of issuing Title V permits and 'major stationary sources' for purposes of meeting PSD requirements involve the same analysis; the aggregated sources must belong to the same industrial grouping, be located on continuous or adjacent properties, and be under common control."

 

    The Appeals Court says in its ruling that "we do not decide whether MacClarence's substantive argument -- that the CAA requires all pollutant-emitting sources in the PBU to be aggregated for purposes of Title V and other substantive CAA provisions -- is correct. Rather, we consider only whether the EPA Administrator erred in determining that MacClarence failed to demonstrate, pursuant to 42 U.S.C. § 7661d(b)(2), that the final Title V permit for GC 1 did not comply with the CAA.

 

    The Appeals Court indicates that, in denying MacClarence's request, the Administrator reasoned that MacClarence (1) "failed to provide adequate information to support his claim that the entire PBU should be aggregated," and (2) "failed to demonstrate that the failure to aggregate all facilities within the PBU has led to a deficiency in the content of the permit." Therefore, the Appeals Court rules, "Because we conclude that we may properly uphold the Administrator's denial of MacClarence's petition on the basis of the first ground, we need not reach the second. . . the Administrator's conclusion that MacClarence "failed to provide adequate information to support his claim that the entire PBU should be aggregated" was not arbitrary or capricious. . .

 

    "Therefore, we conclude that the Administrator's determination that MacClarence did not demonstrate that the entire PBU should be aggregated did not constitute an impermissible interpretation of MacClarence's burden under 42 U.S.C. § 7661d(b)(2), to 'demonstrate' that ADEC's final Title V permit for BP's GC 1 did not comply with the CAA, nor was it arbitrary or capricious."

 

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David L. Lewis v. U.S. Department of Labor

Feb 24: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12114. In this unpublished opinion, Dr. David Lewis petitioned the court for review of the final order of the U.S. Department of Labor Administrative Review Board (ARB) denying his whistleblower complaints against his employer, the U.S. EPA, brought pursuant to the employee protection provisions of the Clean Air Act (CAA); the Safe Drinking Water Act (SDWA); the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Toxic Substances Control Act (TSCA); the Federal Water Pollution Prevention and Control Act (FWPPCA); and the Solid Waste Disposal Act (SWDA).

 

    The case involves a dispute between two EPA employees regarding EPA's Rule 503 [See 40 C.F.R. § 503.1 (2009)] relating to the land application of biosolids. Lewis became concerned that heavy metals in sludge may be adverse to the public health and that the effects of pathogens in the sludge were not adequately investigated during the Rule 503 peer review process. The Appeals Court affirmed the ARB decision denying the complaints.

 

    Access the complete opinion (click here).