Casitas Municipal Water District v. U.S.

Feb 27: In the U.S. Court of Appeals, Federal Circuit, Case No. 2012-5033. Appealed from the United States Court of Federal Claims. In this case a local government alleges that the Federal government has imposed regulations that constitute a legal takings claim with out just compensation.

    Casitas Municipal Water District (Casitas) operates the Ventura River Project (the Project). The Project, which is owned by the U.S. Bureau of Reclamation (BOR), provides water to residential, industrial, and agricultural customers in Ventura County, California. Ventura County is located on the southern coast of California, approximately sixty miles northwest of Los Angeles.

    On January 26, 2005, Casitas brought suit in the United States Court of Federal Claims, alleging that, by imposing certain operating criteria on the Project, the United States had taken its property without just compensation, in violation of the Fifth Amendment to the Constitution. On December 5, 2011, the Court of Federal Claims dismissed Casitas's complaint without prejudice, on the ground that Casitas's takings claim was not ripe.

 

    In dismissing the complaint, the court held that Casitas's claim was not ripe because Casitas had failed to demonstrate that the operating criteria had as yet caused it to deliver less water to its customers than it otherwise would have delivered. Casitas Mun. Water Dist. v. United States, 102 Fed. Cl. 443 (2011) (Casitas V). Casitas now appeals the dismissal of its complaint. The Appeals Court affirmed the lower court dismissal.

 

    In August of 1997, the National Marine Fisheries Service (NMFS) listed the West Coast steelhead trout as an endangered species under the Endangered Species Act (ESA). Casitas, its officers, and the BOR faced possible civil and criminal liability

under section 9 of the ESA if continued operation of the Project resulted in harm to the steelhead trout. A fish ladder was considered a mitigating method and the facility was opened on December 9, 2004.

 

    Casitas said the United States had breached the 1956 Contract. In the alternative, Casitas asserted that, by imposing the operating criteria, the United States had taken Casitas's property without just compensation, in violation of the Fifth Amendment. Under its contract theory, Casitas sought reimbursement of the approximately $9.5 million that it had spent to build the fish ladder facility. Under its takings theory, it sought compensation for the water it claimed it had lost by the imposition of the operating

criteria.

 

    On October 2, 2006, the Court of Federal Claims dismissed Casitas's contract claim. The court ruled that the costs associated

with the construction of the fish ladder facility were operation and maintenance costs and thus not reimbursable under the Contract. In addition, the court ruled that, even if the government had breached the Contract, the sovereign acts doctrine shielded it from liability. To dispose of the case in the trial court on summary judgment, the parties asked the court to decide only the question of whether a diversion of water as a resultl of the fish ladder would constitute a physical or a regulatory taking. Ruling for the government, the court held that the alleged taking was regulatory because it involved the government's restraint on Casitas's use of its property rather than the government's takeover of the property. Based upon the parties' stipulations, it therefore entered summary judgment for the government on Casitas's takings claims and dismissed the complaint. Casitas appealed the dismissal of its complaint to this court. The Appeals Court agreed.

 

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

 

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Institution Of Cetacean Research v. Sea Shepherd Conservation Society

Feb 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35266. In this case the Appeals Court decides to uphold a high seas piracy claim against an activist group objecting to the legitimate taking of whales for research.

 

    In an opening statement in this partially split decision, the majority states, "You don't need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be."

 

    The Appeals Court explains that Plaintiffs-Appellants (collectively, Cetacean) are Japanese researchers who hunt whales in the Southern Ocean. The United States, Japan and many other nations are signatories to the International Convention for the Regulation of Whaling which authorizes whale hunting when conducted in compliance with a research permit issued by a

signatory. Cetacean has such a permit from Japan. Nonetheless, it has been hounded on the high seas for years by a group calling itself the Sea Shepherd Conservation Society and its "eccentric founder," Paul Watson (collectively Sea Shepherd). Sea Shepherd's tactics include all of those listed above.

 

    Cetacean argues that Sea Shepherd's acts amount to piracy and violate international agreements regulating conduct on the high seas. The district court denied Cetacean's request for a preliminary injunction and dismissed its piracy claims. The majority Appeals Court determined it had jurisdiction over the order denying the injunction and also "have jurisdiction to review the dismissal of the piracy claims because the district court's reasoning for dismissing them is 'inextricably intertwined with' its reasons for denying the preliminary injunction." [citing Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th Cir. 2005)].

 

    In an interesting twist, an Australian court entered a default judgment against Cetacean, purporting to enjoin it from whaling in Antarctic coastal waters over which Australia claims sovereignty. The majority said, "The district court's deference to Australia's judgment in that case was an abuse of discretion. . . Whatever the status of Cetacean's whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia's court orders."

 

    The majority also notes that, "Because neither the United States nor Japan recognizes Australia's jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order." The majority opinion indicates, "The district court's orders denying Cetacean's preliminary injunction and dismissing its piracy claims are reversed. The preliminary injunction we issued on December 17, 2012, Inst. of Cetacean Research v. Sea Shepherd Conservation Soc'y, 702 F.3d 573 (9th Cir. 2012), will remain in effect until further order of this court. The district judge's numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington. The panel retains jurisdiction over any further appeals or writs involving this case."

 

    The dissenting Justice indicated in a partially dissenting opinion, "I concur in both the reasoning and the judgment of the panel opinion, reversing the district court's dismissal of Cetacean's piracy claims, and its failure to grant Cetacean a preliminary injunction. Even if one believes it is barbaric to harvest whales for any purpose at the beginning of the 21st century, as practiced by

Cetacean, it is clearly permitted under international law. . . However, I respectfully dissent from the majority's decision to reassign this case to a different district judge. . . I see no basis for reassigning this case. Our panel opinion is well-articulated, succinct, and absolutely clear as to what is required of the district judge on remand. . . The Sea Shepherds are pirates. Period. No district judge could fail to grasp the clarity and firmness of our opinion."

 

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

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Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

Feb 25: In the U.S. Court of Appeals, First Circuit, Case Nos. 12-1404, 12-1772. Petitions for review of orders of the Nuclear Regulatory Commission (NRC). The Appeals Court indicates that, "Under the applicable standards of judicial review, we deny the petition for review."

 

   The Appeals Court explains that the Commonwealth of Massachusetts petitions for review from the NRC March 8, 2012, order denying the Commonwealth's petition for review of the Atomic Safety and Licensing Board's (ASLB) denial of Massachusetts's motion to admit a new contention, and other related requests. The NRC rejected the Commonwealth's claims that the environmental findings in the environmental impact statement (EIS), prepared under the National Environmental Policy Act (NEPA), were inadequate in light of the damage to the Fukushima Daiichi (Fukushima) nuclear power plant in Japan in March of 2011. The Commonwealth also petitions for review from the NRC's May 25, 2012, vote to renew the license of the Pilgrim Nuclear Power Station in Plymouth, Massachusetts, and the May 29, 2012 renewed license.

 

    The Commonwealth's substantive challenges to the NRC's decisions are not based in any alleged failure on the part of the NRC to ensure basic health and safety under the Atomic Energy Act (AEA). Rather, the Commonwealth argues that the Commission's failure to file supplemental analysis on the environmental impacts of relicensing in light of purported new and significant information learned from Fukushima violated its obligations under NEPA and NRC regulations.

 

    The claims made by Massachusetts to the NRC roughly fall into three categories. The first two categories go to whether, in light of Fukushima, the EIS was adequate in its environmental assessments of: (1) spent fuel pool fires; and (2) core damage events. The third category questions whether the decision to proceed with relicensing was contrary to law. The Commonwealth also asserts that the NRC failed to sufficiently consider its own Task Force's report that contained purportedly new and significant information, or explain why it did not require supplementation of the EIS, and Massachusetts claims that it was denied a hearing in violation of the AEA.

 

    In its conclusion, citing the case of Town of Winthrop, 535 F.3d 1, the Appeals Court said it, ". . .found that it was reasonable for an agency to decline to study, in a supplemental EIS, a pollutant for which there was not yet a standard method of measurement or analysis. . . It is similarly reasonable not to delay relicensing until even more information becomes available because the process could otherwise become unending, as new information is always developing. Cf. Marsh, 490 U.S. at 373 (explaining that requiring an updated EIS every time new information arises is not practical because agencies would always be 'awaiting updated information only to find the new information outdated by the time a decision is made'). NEPA imposed no obligation on the NRC to withhold the granting of a renewed license here because of the possibility that currently unavailable information might become available in the future."

 

    Access the complete opinion (click here). [#Energy/Nuclear, #Haz/Nuclear, #CA1]

 

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Dow AgroSciences LLC v. National Marine Fisheries Service

Feb 21: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-2337. Appealed from the United States District Court for the District of Maryland, at Greenbelt. In summary, the Appeals Court reversed, the agency's biological opinion vacated, and the case remanded by published opinion.

 

    In this appeal, the Appeals Court decides whether a "biological opinion" (BiOp) issued by the National Marine Fisheries Service

(Fisheries Service or the Service) to U.S. EPA is arbitrary and capricious under the Administrative Procedure Act. The BiOp,

which the Fisheries Service provided as part of the EPA's process of reregistering the pesticides chlorpyrifos, diazinon, and malathion, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction.

 

    Three manufacturers of the pesticides commenced the legal action, challenging the BiOp by contending that it rested on numerous unsupported assumptions and conclusions and faulty analyses and that therefore it was arbitrary and capricious. The district court, unpersuaded, granted the Fisheries Service's motion for summary judgment, finding that the BiOp was rationally supported by the "voluminous facts and studies considered by the [Fisheries Service]."

 

    The Appeals Court ruled, "On appeal, we reverse, concluding that the BiOp was not the product of reasoned decision-making in that the Fisheries Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, we vacate the BiOp and remand this case to the district court with instructions to remand it to the Fisheries Service for further proceedings consistent with this opinion."

 

    In its conclusion, the Appeals Court said further, "In sum, the Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational. While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious. In reaching this conclusion, we have addressed what we consider to be the more obvious flaws, but others are claimed to exist. We have not addressed all of the Pesticide Manufacturers' complaints because, on remand, they can be aired and addressed in the renewed agency process. We find it sufficient at this point to vacate the BiOp in its present form and require the Fisheries Service to address not only the flaws we identified but also any additional matters that may be raised on remand. . . "

 

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

 

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Menasha Corporation v. DOJ

Menasha Corporation v. DOJ - Feb 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-1720. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, this appeal is about whether the attorney work product privilege protects from pretrial discovery work product exchanged between Justice Department lawyers who are assigned to provide legal assistance to Federal agencies that have conflicting interests.

 

    In 2010 the United States, on behalf of U.S. EPA and the Department of the Interior, filed, jointly with the State of Wisconsin, a suit in a federal district court in Wisconsin against a number of public and private entities. The suit (United States v. NCR Corp., No. 10-C-910, E.D. Wis.) charged that the defendants had polluted the 39-mile long Lower Fox River, plus 1000 square miles of Green Bay (both bodies of water in Wisconsin), with PCBs (polychlorinated biphenyls), a toxic chemical, and that by doing so they had incurred liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

 

    As part of a settlement agreement, embodied in a consent decree the United States offered to contribute $4.5 million to the clean up of the polluted site. The Appeals Court notes that a consent decree requires judicial approval. A court considering a proposed CERCLA consent decree must ensure that it was negotiated fairly. Menasha opposes the proposed consent decree, which has not yet been approved and "contends that the federal agencies' activities increased the costs of the pollution at the Superfund site by far more than $4.5 million, which is only three-tenths of one percent of the estimated potential liability of all

the polluters of the site." The Appeals Court notes that Menasha's opposition to the proposed decree is based on suspicions concerning the bona fides of the negotiations within the Justice Department that led up to the modest estimate of the government's liability.

 

    The team of lawyers in the Justice Department's Environment and Natural Resources Division that is handling the government's case is drawn from two of the Division's sections: the Environmental Enforcement Section, which represents the United States in suits to enforce environmental laws, and the Environmental Defense Section, which defends the United States from suits to enforce

those laws. The case involves Menasha's attempt to obtain communications back and forth between the two sections.

 

    In its conclusion and reversal, the Appeals Court rules, "The Justice Department contends that some of the documents sought by Menasha are also protected by other common law privileges, such as the attorney client privilege and the deliberative process privilege, and also by the privilege for information the disclosure of which could interfere with federal law enforcement. 5 U.S.C. § 552(b)(7)(A). We need not consider these contentions, because all the documents at issue are protected by the work product privilege."

 

    The Appeals Court explains earlier in the opinion that, "Were Menasha's position sound, the Justice Department could never shield attorney work product in a case like this -- a case, not unusual, in which the federal government by virtue of its size and diversity has internal conflicts -- without a crippling reorganization of the Department. Suppose the Department decided (were

we to affirm the district court) that to protect its work product it must create an impermeable membrane between the enforcement section and the defense section. Each section would have to draft its own proposed consent decree. . ."

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

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Republic Of Ecuador v. Chevron

Feb 13: In the U.S. Court of Appeals, Fifth Circuit, Case Nos. 12-20122, consolidated with 12-20123. Appealed from the United States District Court for the Southern District of Texas. The Republic of Ecuador (Appellant) seeks discovery from Appellees John Connor and GSI Environmental, his company, for use in a foreign arbitration against Chevron. During the course of extended litigation with Ecuador, Chevron, an intervenor in the district court, has benefitted repeatedly by arguing against Ecuador and others that the arbitration is a "foreign or international tribunal." Because Chevron's previous positions are inconsistent with its current argument, judicial estoppel is appropriate to make discovery under § 1782 available to Ecuador. The Appeals Court reversed the decision of the district court and remanded the case "for determination of the scope of discovery."

 

    By was of background the Appeals Court explains, Chevron, as successor to Texaco, became embroiled in litigation over the alleged environmental contamination of oil fields in Ecuador. The litigation spans nearly two decades and dozens of courts. A court in Lago Agrio, Ecuador finally issued a multi-billion dollar judgment against Chevron. Chevron filed for arbitration under the rules, as allowed by the US-Ecuador Bilateral Investment Treaty (BIT). Chevron charged that miscarriages of justice in the Ecuadorian courts and participation by Ecuador in the plaintiffs' fraud violated its rights. Ecuador applied to the district court for ancillary discovery from Appellees for use in the arbitration and Chevron intervened to protect its interests.

 

    According to the Appeals Court, the district court, felt compelled by prior Fifth Circuit decisions to deny Ecuador's discovery request. Following those cases, the court concluded, the BIT arbitration represents a bilateral investment dispute that is not pending in a "foreign or international tribunal" as the statute requires.

 

    The Appeals Court concludes, "Chevron has deliberately taken inconsistent positions on the availability of § 1782 discovery for use in 'international tribunals.' Chevron successfully obtained such discovery by persuading courts to reject Ecuadorian (and related parties') objections and by contending, opposite to its current position, that the BIT arbitration is an 'international tribunal.' Finally, if Chevron is permitted to shield itself under Biedermann against Ecuador's current discovery request, it will have gained an unfair advantage over its adversary. Chevron should be judicially estopped from asserting its legally contrary position here. Consequently, we need not and do not opine on whether the BIT arbitration is in an 'international tribunal.' On remand, the district court should proceed in its discretion to evaluate Ecuador's request for discovery pursuant to § 1782."

 

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

 

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Vitol v. Primerose Shipping Co.

Feb 8: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1900. Appealed from the United States District Court for the District of Maryland, at Baltimore. The Appeals Court summarizes that Vitol, S.A. (Vitol) brought the underlying action in the district court against Spartacus Navigation Corp. (Spartacus) and Primerose Shipping Company (Primerose) (collectively S&P) seeking to "pierce the corporate veil" and enforce a judgment against S&P it had previously obtained against Capri Marine, Ltd. (Capri Marine). After determining that its exercise of admiralty jurisdiction was proper, the district court granted motions to dismiss and to vacate attachment filed by S&P. The Appeals Court affirmed the judgment of the district court.

 

    By way of background, the Appeals Court explains, "In September 2000, the vessel ALAMBRA was involved in a marine pollution incident (the Oil Spill) while in port in the country of Estonia. The ALAMBRA was owned by Capri Marine and chartered by Vitol at the time of the Oil Spill. Vitol brought suit against Capri Marine in the English High Court of Justice, Queen's Bench Division, Commercial Court, alleging that Capri Marine breached certain warrantees of seaworthiness resulting in the Oil Spill and resulting damages. Vitol prevailed in the English court, and obtained a judgment in 2005 against Capri Marine in the amount of $6.1 million plus costs and interest (the English Judgment). The English Judgment remains unpaid and now totals over $9 million with accrued interest. During the English litigation, the ALAMBRA was sold for scrap by Capri Marine to Aurora Maritime (Aurora) for approximately $2 million."

   

    The Appeals Court concludes, "In sum, we agree with the district court's holding that the allegations in the Amended Verified Complaint fail to state a claim upon which relief may be granted, and dismissal was therefore warranted pursuant to Rule 12(b)(6). Vitol's allegations are conclusory and contain legal conclusions couched as factual allegations. To the extent that the Amended Verified Complaint does properly allege facts, those facts do not show more than 'a sheer possibility that a defendant has acted unlawfully.' See Iqbal, 556 U.S. at 678. Because 'the well-pleaded facts do not permit [this] [C]ourt to infer more than the mere possibility of misconduct, the complaint has alleged but it has not "shown"—'that the pleader is entitled to relief."' See id. at 679. As with the Supplemental Rule E analysis, we conclude the district court did not err in granting S&P's Rule 12(b)(6) motion to dismiss the Amended Verified Complaint."

 

    Access the complete opinion (click here). [#Energy/OilSpill, #CA4]

 

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Center For Biological Diversity v. Salazar (DOI/BLM)

Feb 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17843. Appealed from the United States District Court for the District of Arizona. The Appeals Court explains that Appellants Center for Biological Diversity, Grand Canyon Trust, Sierra Club, Kaibab Band of Paiute Indians, and Havasupai Tribe contend that Appellees Ken Salazar, Secretary of the Interior, and the U.S. Bureau of Land Management (collectively, BLM) violated the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and its own regulations, by permitting Denison Mines Corp. and Denison Arizona Strip, LLC (collectively, Denison) to restart mining operations at the Arizona 1 Mine in 2009, after a seventeen-year hiatus, under a plan of operations that BLM approved in 1988.

 

    The district court denied the motion for preliminary injunction, holding that the 1988 plan of operations had not become ineffective and that BLM did not have to prepare a supplemental NEPA analysis prior to Denison recommencing mining operations. A panel of the Appeals Court affirmed the district court's denial of the preliminary injunction in an unpublished memorandum disposition.

 

    After further proceedings in the district court, both parties moved for summary judgment. The district court granted summary judgment in favor of Appellees as to all of Appellants' claims, with one exception. The district court determined that BLM "provided no more than a 'cursory statement' of no cumulatively significant impacts in applying the categorical exclusion" when issuing Mohave County the "Free Use Permit" to remove gravel from Robinson Wash and remanded the issue to the BLM. A short time later, BLM provided further explanation as to its use of the categorical exclusion. The district court found that BLM had presented

a rational explanation for its use of the categorical exclusion. Accordingly, the district court concluded that use of the categorical exclusion as to the gravel permit was not arbitrary and capricious. The district court thus granted summary judgment on the categorical exclusion issue in favor of Appellees.

 

    The Appeals Court concluded, "In sum, we conclude that BLM's invocation of the categorical exclusion was not arbitrary and capricious or otherwise not in accordance with law. Alaska Ctr. for Env't v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999). We thus affirm the district court's summary judgment against Appellants as to BLM's invocation of the categorical exclusion for issuance of the Robinson Wash gravel permit."

 

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

 

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