State Of Wyoming v. USDA Forest Service

Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

 

    In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."

 

    Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).

 

    In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.

Wyoming's NFMA claim must therefore fail."

 

    Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . .  As discussed. . .  Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."

 

    A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.

 

    Tim Preso, an Earthjustice attorney representing the conservation groups said, "The  public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."

 

    Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."

 

    The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."

 

    Access the complete opinion (click here). Access the release from environmental groups (click here). [#Land, #CA10]

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Copar Pumice Co., Inc. v. Tidwell

Apr 19: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-2211. Petitioner-Appellant Copar Pumice Company, Inc. (Copar), proceeding under the Administrative Procedure Act, (APA), appeals the district court's denial of its petition for review concerning the Notice of Noncompliance that the United States Forest Service (FS) issued to Copar

concerning its pumice mining activities. The Appeals Court affirmed the district court's denial.

 

    By way of background, Copar operates the El Cajete pumice mine on four unpatented mining claims located within the Jemez National Recreation Area in New Mexico. Pursuant to a written settlement agreement with the FS, Copar may extract pieces of pumice in excess of 3/4 inches in size "subject to all pertinent statutes and regulations." Copar's +3/4" pumice is an "uncommon variety" of pumice that has a distinct and special value as a stonewashing agent in the garment finishing industry: the pumice "abrade[s] denim fabric, especially jeans, by creating a worn look on new denim fabric."

 

    After El Cajete mining operations began, the FS learned that Copar was not exclusively selling its +3/4" pumice to the garment finishing industry; rather, Copar was selling some of its +3/4" pumice to other industries for common variety uses. The FS claimed that this practice violated the applicable regulations, as well as the settlement agreement. Copar disagreed, and the FS eventually issued Copar a Notice of Noncompliance.

 

    The Appeals Court ruled, "Copar acknowledged in the settlement agreement that it had no right to extract common variety pumice from El Cajete. Because it was not arbitrary and capricious for the FS to conclude that the portion of Copar's +3/4" pumice that is not destined for the garment finishing industry is common variety pumice, Copar had no right to extract common variety pumice, and therefore no taking occurred."

 

    Access the complete opinion (click here).

Rio Grande Silvery Minnow v. Bureau of Reclamation

Apr 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 05-2399, 06-2020 & 06-2021. The Appeals Court sets the stage saying, "This case involves one battle in a prolonged war over a finite and elemental resource -- Rio Grande water. The needs of the plants and animals that depend upon this water for survival are in tension with the needs of the human inhabitants of the Middle Rio Grande Valley (the Valley) who depend upon the water for daily living and commercial and agricultural activities."

 

    Alleging that the Bureau of Reclamation (Reclamation) failed to properly maintain the delicate balance between these counterpoised needs to the detriment of several endangered species, Defenders of Wildlife, Forest Guardians, National Audubon Society, New Mexico Audubon Council, Sierra Club, and the Southwest Environmental Center (the Environmental Groups) sought relief in federal court pursuant to the Endangered Species Act (ESA). Directly at issue is whether Reclamation has discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow (Minnow). The Environmental Groups claim that Reclamation does and that its failure to weigh that discretion in its consultations with the U.S. Fish and Wildlife Service (the FWS) violated § 7 of the ESA.

 

    The majority Appeals Court said in a split ruling, "At the outset, we commend the district court. When confronted with an extended and sometimes acrimonious dispute between bitterly opposed and firmly entrenched interests, it acted impartially, thoughtfully, and thoroughly. We are constrained, however, to disagree with the district court and conclude that intervening events have mooted the Environmental Groups' scope-of-consultation claim under the ESA. We also conclude that the district court erred in denying the appellants' motions for vacatur. . . we dismiss the appeal and remand to the district court to vacate its memorandum opinions and orders of April 19, 2002, September 23, 2002, and November 22, 2005, and to dismiss the Environmental Groups' complaint with regard to their scope-of-consultation claim under the ESA."

 

    In a lengthy dissenting opinion one Justice said, "I believe this case is more than a simple battle about allocating resources between the silvery minnow (and analogously situated plants and animals) and humans. There are a variety of options available,

and the Supreme Court and Congress recognize that 'the value of endangered species [is] incalculable.'"

 

    Access the complete opinion and dissent (click here).

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."

 

    Access the complete opinion (click here).

Crandall v. Denver

Feb 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1197. Plaintiffs Terri Crandall and JoAnn Hubbard sued for injunctive relief against the City and County of Denver under the citizen-suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA). Their concern is that aircraft deicing fluid (ADF), which can produce hydrogen-sulfide gas when it decomposes, endangers human health at Concourse B of the Denver International Airport. The gates on Concourse B are used almost exclusively by United Airlines. Crandall is a United employee, and Hubbard is a former employee who now frequently uses Concourse B as a passenger. Plaintiffs seek: (1) to prohibit full-plane deicing at Concourse B gates; and (2) to require other precautionary steps relating to ADF.

 

    Following a five-day bench trial, the United States District Court for the District of Colorado denied Plaintiffs relief. It found that Denver no longer permits full-plane deicing at the gates and held that Plaintiffs had not shown that the current use of ADF "may present an imminent and substantial endangerment to health," which is a prerequisite for RCRA relief. The court also held that RCRA does not govern all the ADF by Concourse B at the Denver Airport, but only the ADF "that flows in storm water into Concourse B and degrades in Concourse B." The ADF that degrades outside the concourse, it said, was governed exclusively by permits issued under the Clean Water Act (CWA).

 

    On appeal Plaintiffs argue that the district court misconstrued RCRA's requirements with respect to injunctive relief. They also contend that the court erred in holding that the CWA, rather than RCRA, governs some of the ADF at the Denver Airport. The Appeals Court ruled, "We affirm the district court's denial of injunctive relief. Plaintiffs failed to demonstrate that ADF at the airport (whether it degrades inside or outside Concourse B) may present an imminent and substantial endangerment to health. Because relief under RCRA would therefore not be available even if RCRA governs the ADF that degrades outside the concourse, we need not address whether such ADF is governed exclusively by the CWA."

 

    The Appeals Court said further, "A RCRA suit cannot be brought because someone may sometime begin disposing of solid waste in a manner that presents an endangerment. The endangering practice -- here, the resumption of gate deicing -- must be imminent. See 42 U.S.C. § 6972(a)(1)(B). Plaintiffs' suit was properly dismissed because the evidence showed that resumption of full-plane gate deicing at Concourse B was not imminent, but merely speculative. If the district court had been persuaded by the evidence that Denver would likely resume full-plane deicing at the gates upon conclusion of this litigation and that such a practice may present an imminent and substantial endangerment to health, we presume that it could properly issue an injunction under RCRA. That, however, is not the case we have before us."

 

    Access the complete opinion (click here).

Raytheon Aircraft Co. v. U.S.

Dec 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-3237. The case involves an appeal from a judgment in favor of the United States in a cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). At trial, the parties disputed the degree to which each is liable for trichloroethylene (TCE) contamination near Hangar 1 and Hangar 4 at Tri-County Public Airport in Herington, Kansas. The United States Army used the airfield from 1942 to 1945. Raytheon Aircraft Company is a successor to Beech Aircraft Corporation, which operated the airfield during the 1950s. According to the Appeals Court, the United States and Raytheon agree they are the only two potentially liable parties.

Raytheon appealed the district court’s finding that it is solely liable for contamination at Hangar 1, as well as the court’s decision to award the United States costs associated with its attempts to list the site on the National Priorities List (NPL). The Appeals Court affirmed the district court’s decision.

The Appeals Court ruled, ". . .this court concludes Raytheon has failed to rebut the presumption that the EPA’s efforts to list the site on the NPL were consistent with the national contingency plan. Because Raytheon has presented no evidence to support a
determination that the EPA’s actions were arbitrary and capricious, the district court’s judgment must be affirmed."

In developing its decision, the Appeals Court reasoned, "Were this court to adopt Raytheon’s view that the decision to abandon a good faith attempt to list a site on the NPL makes that attempt arbitrary and capricious as a matter of law, the EPA would be forced to continue expending efforts and funds in support of a listing in order to recover its costs, even where the results of the ESI [expanded site inspection] itself ultimately reveal the contamination is not serious enough to warrant the listing. Such a result is untenable."

Access the complete opinion (click here).

U.S. v. Albert Investment Co.

Nov 10: In the U.S. Court of Appeals, Tenth Circuit, Chase No. 08-6267. Union Pacific Railroad Co. (Union Pacific) appealed from the district court’s denial of its motion to intervene in an action brought by Plaintiffs-Appellees (United States and the State of Oklahoma) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Appeals Court ruled, "Because Union Pacific has an interest in the underlying action, and a statutory right to intervene, we reverse and remand."

The Union Pacific Railroad Company acquired the Double Eagle Superfund Site in 2003, as part of its merger with the Missouri Pacific Railroad Company. The Appeals Court concluded, "Because Union Pacific has demonstrated all four requirements for intervention as of right -- timeliness, interest, impairment, and inadequate representation -- the district court erred in denying the motion for intervention as of right, and on remand Union Pacific shall be allowed to intervene. Because we find that Union Pacific has a right to intervene, we do not reach the district court’s denial of the motion for permissive intervention."

In an interesting portion of the overall decision, the Appeals Court says, "The notice-and-comment mechanism is not an adequate substitute for intervention, contrary to the government’s claims. . . The government solicits comments regarding proposed consent decrees as a matter of practice. . . Union Pacific submitted comments to the Attorney General within the comment period, and the Department of Justice will file them with the district court. . . As Judge Lucero observed during oral arguments, however, the government is free to ignore the comments because the notice-and comment mechanism is not statutorily mandated. The district court may also disregard Union Pacific’s comments in the absence of any requirement to consider them or any appellate review of the court’s consideration of comments. The failure to consider adequately an intervenor’s objections, on the other hand, is subject to appellate review. . . For these reasons, Union Pacific’s ability to protect its interests will be impaired if it is not a party to this action."

Access the complete opinion (click here).

WildEarth Guardians v. US Forest Service

Jul 24: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1089. The appellant, Mountain Coal Company (MCC), owns and operates the West Elk Mine, a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado. After the United States Forest Service approved plans for venting methane gas from the mine, WildEarth Guardians brought suit against the Forest Service, the Department of Interior, and several of their officials under the Administrative Procedure Act, contending that the approval violated the National Environmental Policy Act (NEPA). MCC moved to intervene under Federal Rule of Civil Procedure 24.

The district court denied the motion and MCC appealed. Because “[a]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action,” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of the Interior, 100 F.3d 837, 839 (10th Cir. 1996) (Coalition). The Appeals Court concluded that MCC is entitled to intervene as of right, and accordingly reversed the district court’s decision and remanded the case with instructions to grant MCC’s motion to intervene.

The Appeals Court ruled, "We are convinced that MCC has established a possibility of inadequate representation. . . the government has multiple objectives and could well decide to embrace some of the environmental goals of WildEarth. Therefore, MCC should not be required to rely on the defendants to represent its interests."

Access the complete opinion (click here).

Greater Yellowstone Coalition v. Kimball

Jul 10: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-8083. Petitioners-Appellants Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, and Wyoming Outdoor Council (collectively GYC) sent a letter to the United States Forest Service (Forest Service”) and the United States Bureau of Land Management (BLM) requesting the agencies to undertake environmental analyses of Wyoming elk feedgrounds located on Federal land. In the letter, GYC alleged the environmental analyses were required pursuant to the National Environmental Policy Act (NEPA).

Unsatisfied with the agencies’ response to its letter, GYC filed a Petition for Review of Agency Action in the United States District Court for the District of Wyoming. GYC alleged the Forest Service and BLM violated NEPA and various Federal permitting regulations in connection with the feedgrounds’ authorizations. In addition to seeking review of the agencies’ actions, GYC requested injunctive relief requiring the Forest Service and BLM to undertake environmental analyses of the feedgrounds. The district court denied the requested relief and entered judgment in favor of Respondents. GYC then appealed the decision and the Appeals Court vacated the portions of the district court order that have become moot and affirmed the other portions.

The Appeals Court ruled further, "GYC’s claims as to the six feedgrounds included in the July 2008 environmental analysis are moot. We therefore vacate the portions of the district court opinion addressing those feedgrounds." Additionally, ". . .we conclude BLM’s actions with regard to the four Wyoming feedgrounds in question were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and affirm the district court’s denial of GYC’s request to compel BLM to undertake environmental analyses of these feedgrounds."

Access the complete opinion (click here).

Friedland v. TIC-The Industrial Co.

May 29: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1042. Plaintiff-appellant Robert M. Friedland filed the contribution action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 113(f), against defendants appellees, The Industrial Company (TIC) and GeoSyntec Consultants Inc. (GeoSyntec). The district court entered summary judgment in favor of the defendants-appellees based on its determination that Friedland already recouped all of his recoverable costs from other entities and therefore has no damages to recover in this case. Friedland appealed the decision and the Appeals Court affirmed the district court decision.

The Appeals Court concluded, "The district court correctly concluded that the collateral source rule does not apply in this CERCLA contribution action. The court also properly determined that the alleged injury and damages in this lawsuit are the same as those addressed in the USF&G and Travelers settlements. We therefore affirm the entry of summary judgment against Mr. Friedland. We grant the appellees’ motion to file their response brief under seal and Mr. Friedland’s motion to file his reply brief under seal."

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Attorney General for Oklahoma v. Tyson Foods, Inc

May 13: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-5154. The case, involving dozens of attorneys, is an interlocutory appeal of a denial of a motion for a preliminary injunction issued by an Oklahoma district court in September 2008. The motion arose out of a 2005 complaint filed by Plaintiffs-Appellants (collectively referred to as Oklahoma) against Defendants-Appellees (collectively referred to as Tyson Foods), which alleged various State and Federal environmental claims.

Pursuant to that complaint, on November 14, 2007, Oklahoma filed its motion for a preliminary injunction under the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. § 6972(a)(1)(B), seeking to enjoin Tyson Foods from “(1) applying poultry waste to any land within the [Illinois River Watershed (IRW)] and (2) allowing the application of poultry waste generated at its respective poultry feeding operations and/or the respective poultry feeding operations under contract with it to any land within the IRW.” The district court denied the preliminary injunction on September 29, 2008, and the Appeals Court affirmed the denial.

The majority Appeals Court, in this partially split decision (dissent in part, concur in part), said in conclusion, "In its opinion and order denying a preliminary injunction, the district court stated that 'the State has not yet met its burden of proving that bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources . . . . As a result, the State has failed to meet the heightened standard for a preliminary injunction . . . .'

"The district court set out the standard for granting a preliminary injunction, determined that the requested injunction required a heightened showing of the four factors, and then indicated that it did not find Oklahoma’s two expert witnesses on the source of bacterial pollutants in the IRW to be sufficiently credible. . . Therefore, the court held, Oklahoma could not establish causation, and thus by implication Oklahoma could not establish a likelihood of success on the merits of its RCRA claim.

"We certainly agree that the district court’s order could have been more explicit, but the grounds for the district court’s decision are sufficiently apparent to allow us to conduct appellate review, namely, it allows us to determine (1) the legal standards employed, (2) whether the findings have sufficient evidentiary support, (3) whether the legal conclusions follow from those findings, and (4) whether the legal conclusions support the grant or denial of relief. Thus, even if this court did find that the district court failed to comply with Federal Rule of Civil Procedure 52(a), the error would be harmless and a remand for clarification would not be necessary because we can ascertain from the record the basis for the denial. . . The district court, based on the evidence presented, simply could not establish a sufficient link between land-applied poultry litter and bacteria in the IRW, and therefore preliminary injunctive relief was not appropriate."

Access the complete opinion (click here).

State of New Mexico v. Bureau of Land Management

Apr 28: In the U.S. Court of Appeals, Tenth Circuit, Case No.06-2352. As explained by the Appeals Court, the litigation concerns the environmental fate of New Mexico’s Otero Mesa, the largest publicly-owned expanse of undisturbed Chihuahuan Desert grassland in the United States (over 1.2 million acres). From 1998 to 2004, the Bureau of Land Management (BLM or the Agency) conducted a large-scale land management planning process for federal fluid minerals development in Sierra and Otero Counties, where the Mesa is located. Ultimately, the Agency opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time.

Invoking the National Environmental Policy Act (NEPA), the Federal Land Management Policy Act (FLPMA), and the National Historic Preservation Act (NHPA), the State of New Mexico and a coalition of environmental organizations led by the New Mexico Wilderness Association (NMWA) challenged in federal district court the procedures by which BLM reached this determination. NMWA also challenged BLM’s decision not to consult with the Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) regarding possible impacts of the planned development on the Northern Aplomado Falcon.

The district court rejected the challenges, save for the plaintiffs’ argument that BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. The Appeals Court ruled, "Discerning serious flaws in BLM’s procedures, we affirm the district court’s conclusion that NEPA requires BLM to conduct site-specific analysis before the leasing stage but reverse its determination that BLM’s plan-level analysis complied with NEPA. Moreover, we affirm its conclusion that BLM complied with public comment provisions in FLPMA, and we vacate as moot the portion of the district court’s order addressing NMWA’s ESA claims."

New Mexico Attorney General Gary King commented on the decision and said, "This is great news for those who believe as I do that the preservation of Otero Mesa is critical to the health of people, wildlife and the environment In southeastern New Mexico. This decision confirms the position of the Attorney General's office that the Otero Mesa development plan did not properly take into consideration all the environmental impacts to the habitat and protection of groundwater in the area so this is a huge victory for us." The AG indicated in a release that the 10th Circuit reversed Judge Bruce Black on most issues concerning the propriety of issuing oil and gas leases on Otero Mesa. The Bureau of Land Management will likely have to complete an environmental impact statement on the entire Otero Mesa management plan; at least consider totally closing Otero Mesa to development; show more evidence for conclusions about impacts on the area's aquifer and; conduct further analysis before leasing.

Access the complete opinion (click here). Access the statement from the NM AG (click here). Access the New Mexico Wilderness Association website for more information (click here).

Arizona Public Service Company v. EPA

Apr 14: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-9546 & 07-9547. Arizona Public Service Company (APS), operator and majority owner of the Four Corners Power Plant (Plant), and Sierra Club, Diné CARE, Diné for the C-Aquifer, and San Juan Citizens Alliance (collectively Environmentalists) challenged a regulation promulgated by the U.S. EPA (EPA). The regulation at issue is known as a source-specific, Federal implementation plan (Federal plan) and was enacted pursuant to sections 301(a) and (d)(4) of the Clean Air Act, 42 U.S.C. §§ 7601(a) and (d)(4). The Federal plan limits particular air emissions from the Plant.

The Appeals Court indicated that because all parties agree that the Federal plan provision pertaining to fugitive dust should be remanded, it did not address those emissions limit in its discussion of the facts. The Appeals Court granted EPA’s motion for voluntary remand and granted in part and denied in part the petitions for review. In particular, the Appeals Court denied APS’s petition for review; denied the Environmentalists’ petition for review, and affirmed the remainder of the Federal implementation plan.

On the APS challenge, the Appeals Court said, "We hold the EPA has established 'an adequate rationale' for the affirmative defense. . . We conclude the EPA has not acted arbitrarily or capriciously. The EPA identified a regulatory need and enacted a source-specific Federal plan to fill this gap. The EPA has neither relied on factors which Congress did not intend it to consider nor failed to consider any important aspect of the problem. . . The EPA addressed all substantive aspects of APS’s comments: startup, shutdown, malfunction, and saturated stack conditions. The EPA based its decision on the evidence before it, i.e., current air quality data for the area surrounding the Plant, and incorporated its negotiations with APS, the Navajo Nation, and the State of New Mexico into its plan. We can ascribe APS’s disagreement with the EPA’s final action to a difference in view."

Regarding the Environmentalists' challenges, the Appeals Court said, "In sum, the key criterion in determining the adequacy of any plan is attainment and maintenance of the national air standards. . . The Federal plan at issue codifies in part the New Mexico plan -- previously studied, analyzed, approved, and in place -- and relies on current data demonstrating that the air quality in the area of the Plant is better than the national air standards for criteria pollutants. Therefore, the EPA had no need to conduct additional modeling and analysis to demonstrate the adequacy of the plan, a fact the EPA already knew. The Federal plan, by necessity, is adequate because the plan is but a stricter version of the satisfactory emissions limits already applied by the Plant and implemented throughout the State of New Mexico. Because the EPA’s interpretation of its own regulation is not 'plainly erroneous or inconsistent with the regulation,' we must defer to the EPA."

Access the complete opinion (click here).

Cannon v. Gates (Defense Department)

Aug 26: In the U.S. Court of Appeals, Tenth Circuit, Case No. 07-4107. Plaintiffs-Appellants F. Douglas Cannon, et al (the Cannons) brought suit against the Defendants-Appellees claiming two violations of the Solid Waste Disposal Act and one violation of the Administrative Procedures Act. The district court dismissed the case for lack of subject matter jurisdiction pursuant to the jurisdiction-stripping provision at 42 U.S.C. § 9613(h). The Appeals Court concluded that the district court properly applied § 9613(h) because the Cannons’ suit constitutes a challenge to the Government’s selected removal action, and therefore affirmed the dismissal.

Cannon owned over 1,416 acres of land in Tooele County, Utah and in 1945 entered into a six-month lease with the U.S. War Department, in return for one dollar, which permitted the Government to enter his land to conduct Project Sphinx, which was designed to test means of battling Japanese forces entrenched in caves in the Pacific Islands. The Government agreed that, at the expiration of the lease, it would “leave the property of the owner in as good condition as it is on the date of the government’s entry.”

As part of that testing, the Government used incendiary weapons, including aviation fuel, butane, gasoline, napalm, PT jell, and napalm-gas mixtures. The Government also used chemical weapons, such as phosgene, hydrogen cyanide, mustard gas, and defoliants. Finally, the Government dropped conventional bombs on Cannon’s property. In the 1970s, the Government initiated efforts to study the contamination at the adjacent Dugway Proving Grounds, and included the Cannon property in some of these efforts. The Government, however, did not clean up the Cannon property at that time, and has yet to do so.

Frustrated by the slow progress in the Government’s clean up efforts, two of Cannon’s children, sued the U.S. in 1998 under the Federal Tort Claims Act (FTCA). Following a bench trial, the district court found that the Government had diminished the value of the Cannons’ land from $176.26 to $25 an acre, and awarded them $160,937 in damages. The Tenth Circuit, however, reversed that judgment and held that the statute of limitations barred the Cannons’ FTCA claims.

In November 2005, the Cannons tried a different approach and initiated legal action alleging two claims under the Solid Waste Disposal Act (SWDA). The Cannons alleged under two sections of SWDA that the United States was in violation of federal and Utah regulations applicable to generators of hazardous waste; and that the U.S. has contributed to conditions on their property that endanger the Cannons, other individuals mining on the property, and members of the general public who come onto the Cannons’ property. The Cannons also made a claim under the Administrative Procedures Act (APA), to “compel agency action unlawfully withheld or unreasonably delayed.”

The district court said SWDA § 9613(h) deprives federal courts of jurisdiction to consider “any challenges to removal or remedial action selected.” The Cannons' appealed and the Appeals Court determined that the "Government has already undertaken several
steps toward determining how it will address the contamination present on the Cannons’ property"; and thus, "the Government’s removal actions are therefore sufficient to trigger § 9613(h)." The Appeals Court said, "We are sympathetic to the Cannons’ frustration with the long delays; however, their suit falls within the broad ambit of § 9613(h)."

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Wilderness Workshop v. U.S. Bureau of Land Management

Jul 8: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-1165. Plaintiffs Wilderness Workshop, High Country Citizens’ Alliance, Western Colorado Congress, Western Slope Environmental Resource Council, Center for Biological Diversity, and Board of County Commissioners for Pitkin County (Colorado) filed suit challenging a decision by defendants, the U.S. Bureau of Land Management (BLM) and the United States Forest Service (Forest Service), authorizing defendant/intervenor SG Interests I, Ltd. (SG) to construct, operate, and maintain a natural gas pipeline through roadless national forest land. In connection with their suit, plaintiffs sought and were denied a preliminary injunction by the district court. Plaintiffs then filed an interlocutory appeal from the district court’s order denying their motion for preliminary injunction. The Appeals Court affirmed the decision of the district court in denying the preliminary injunction and granted the motions of the Colorado Oil and Gas Association, the Congress of Racial Equality, and Harold Shepherd to file amicus curiae briefs in the case.

In denying the preliminary injunction the Appeals Court said the plaintiffs only met one prong of a three prong test -- they "produced evidence that they will suffer some imminent and irreparable injuries if the pipeline construction begins;” however, the threatened injury to plaintiffs was equally balanced “against the weight of the public interest in gas production, and [SG’s] demonstrated economic interests;" and as the district court concluded the public interest factor did not weigh heavily in favor of either the plaintiffs or the defendants and [SG].

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Center For Native Ecosystems v. Cables

Dec 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 06-1130. The Center for Native Ecosystems, the Biodiversity Conservation Alliance, and the Forest Guardians (collectively CNE) appeal the district court’s order denying a petition for review of the United States Forest Service’s authorization of livestock grazing in Medicine Bow National Forest. CNE first contends that the Forest Service violated § 7(a)(2) of the Endangered Species Act, because (1) its consultation with the United States Fish and Wildlife Service (FWS) after the designation of portions of the forest as critical habitat for the Preble’s meadow jumping mouse (Preble’s mouse) failed to consider how grazing in the mouse’s critical habitat would affect its recovery, and (2) it must reinitiate consultation with the FWS regarding the effects of grazing on the mouse itself because grazing has exceeded previously established limits. CNE also contends that the Forest Service has violated § 313(a) of the Clean Water Act because it has not complied with Wyoming water-quality requirements “in the same manner, and to the same extent as any nongovernmental entity,” 33 U.S.C. § 1323(a).

The Pole Mountain Cattlemen’s Association, the Wyoming Stock Growers Association, the Wyoming Farm Bureau Federation, and the Laramie County Farmers Union (collectively the Cattlemen’s Association), along with the Wyoming Association of Conservation Districts, intervened in the district-court proceeding as defendants in support of the Forest Service’s actions. The State of Wyoming, the Pacific Legal Foundation, and the National Association of Home Builders in conjunction with the American Forest and Paper Association have filed amicus briefs supporting various aspects of the Forest Service’s actions. The Appeals Court affirmed the district court’s decision. One of the justices issued a separate but concurring opinion.

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