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."

 

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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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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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Precision Pine & Timber, Inc. v. US

Feb 19: In the U.S. Court of Appeals, Federal Circuit, Case No. 08-5092. The Appeals Court explains that this is a government contract case, "We must decide whether the federal government's suspension of fourteen contracts breached any express or implied warranties." These fourteen contracts are between the U.S. Forest Service and Precision Pine & Timber, Inc. (Precision Pine), and provide for timber harvesting in Forest Service Region 3, which covers Arizona's national forests. In August 1995, the Forest Service suspended the contracts pursuant to a court order. The order prohibited further timber harvesting in that region until the Forest Service consulted with the U.S Fish and Wildlife Service about the pertinent land resource management plans. The order explained that such consultation was required under § 7 of the Endangered Species Act, due to the recent listing of the Mexican spotted owl as an endangered species. The fourteen contracts remained suspended until completion of the consultation process in December 1996.

    Precision Pine subsequently brought the suit in the U.S. Court of Federal Claims, alleging that suspension of the contracts breached both express and implied warranties. The trial court agreed with Precision Pine. On liability, it granted summary judgment in favor of Precision Pine, concluding that the government breached both an express contractual warranty and the implied duty of good faith and fair dealing. (Precision Pine I or liability decision). Following this decision, the case was transferred to a different judge for the sole purpose of adjudicating damages. After five years of discovery, a twenty-four day bench trial, and extensive supplemental briefing, the trial court awarded $3,343,712 in damages to Precision Pine (Precision Pine V or preliminary damages decision). The United States then appealed the liability determination and damages award. The Appeals Court reversed the lower court decision.

    Although the contract dates and terms differ slightly, the Appeals Court said "for our purposes the issues posed are the same." The Appeals Court said, "Seven of the contracts present the question of whether a particular clause (CT 6.25) created an express warranty and, if so, whether it was breached. If CT 6.25 did create an express warranty, then we must also decide whether the government breached its implied duty to cooperate as to those contracts. For eleven of the contracts, we must also decide whether the United States breached its implied duty not to hinder. We conclude that the answer to each of these questions is no. Clause CT 6.25 of the contracts did not create an express warranty, and the Forest Service's actions did not breach any implied duty to cooperate or not to hinder. Accordingly, we reverse the trial court's liability decision and vacate the damages award for all contracts, except the Hay contract. Because the government concedes it lacked authority to suspend the Hay contract, we remand for further proceedings as to that contract. For the other thirteen contracts, the trial court should enter judgment for the United States."

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River Runners For Wilderness v. Martin (Interior Dept.)

Feb 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15112. The case concerns the National Park Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contend that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various Federal statutes. Plaintiffs asked the District Court to set aside the decision under the Administrative Procedure Act (APA). The Appeals Court indicated that, "For reasons explained in this opinion, Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA." In a footnote, the Appeals Court praised, "The wording of Judge Campbell’s carefully crafted district court opinion with its detailed factual discussion and thorough analysis, with which we agree, has been utilized in this opinion." In its final conclusion, the Appeals Court indicates, "Plaintiffs have failed to establish that the Park Service acted arbitrarily and capriciously when it adopted the 2006 Management Plan."

On one of the primary issues of concern, i.e. noise, or "impairment of the natural soundscape;" the Appeals Court said, "Plaintiffs argue that the Park Service failed to consider 28 previous studies, but they identify no specific studies for the court to consider. Nor do Plaintiffs cite any recent studies that call into question the findings of the 1993 and 2003 studies. Defendants also note that any studies conducted in the 1970s would have concerned louder two-stroke engines rather than the quieter and cleaner four-stroke engines now used in the Corridor. Finally, the 2003 study specifically considered and summarized the earlier studies relied on by Plaintiffs. Given all of these considerations, the court cannot conclude that the Park Service acted arbitrarily and capriciously when it concluded that motorized uses do not impair the soundscape of the Park within the meaning of the Organic Act."

Access the complete opinion (click here).

Hells Canyon Preservation v. U.S. Forest Service

Jan 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35456. Plaintiffs-Appellants Hells Canyon Preservation Council and The Wilderness Society (collectively, HCPC or plaintiffs) brought suit against the United States Forest Service (Forest Service or Service), seeking a judgment declaring: (1) that the Forest Service has failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that the Forest Service’s description of the wilderness boundary is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) that the Forest Service’s failure to close the Lord Flat Trail to motorized vehicle use is an “agency action unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706(1).

Plaintiffs also seek an injunction to close the Lord Flat Trail to motorized vehicle use. The district court held that each of plaintiffs’ claims was barred by the Administrative Procedure Act’s (APA’s) six-year statute of limitations. The Ninth Circuit majority said in a split decision, "Although we rely on different reasoning, we affirm the judgment of the district court." In conclusion the majority ruled, "Over a three-year period, between 1978 and 1981, the Forest Service considered the evidence, consulted the controlling statutes, and then acted to comply with the Wilderness Act by publishing the boundary description. From that time, plaintiffs had six years in which to air their disagreement. They did not. We see no reason to entertain their attempt to revive their disagreement by labeling the Forest Service’s actions as an ongoing failure to act."

In the partial dissent, one of the Justice's ruled, "I concur in the majority’s analysis of the first two claims. Plaintiffs do not have standing to challenge the Forest Service’s failure to retain the original map of the Hells Canyon Wilderness area. Maj. op. Part II-A. And Plaintiffs’ claim that the boundary description is arbitrary and capricious is barred by the six-year statute of limitations. Maj. op. Part II-B. I respectfully dissent, however, from the majority’s analysis of the third claim. Maj. op. Part II-C. . . In my view, Plaintiffs have asserted a viable claim to “compel agency action unlawfully withheld” under 5 U.S.C. § 706(1)."

Access the complete opinion and dissent (click here).

Klamath Siskiyou Wildlands Center v. U.S. BLM

Dec 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35463. The Appeals Court explains, "We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management [BLM] withdraws its challenged decision to conduct a timber sale." The "prevailing party" issue is important because Congress has passed many statutes to allow parties who sue the United States to recover attorney’s fees in certain circumstances, but only if they are the “prevailing parties” in the lawsuit. The Appeals Court cites: Buckhannon Bd. v. W.Va. Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001).

Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds (Klamath) sued the Bureau of Land Management of the United States Department of the Interior (BLM), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act (NEPA) and the Forest Lands Policy and Management Act (FLPMA). Klamath sought “a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and
attorneys fees.”

In this case, which has many nuisances, the Appeals Court rules, "In summary, we conclude that Klamath is not a prevailing party in this case because neither the stipulated order, the magistrate judge’s F&R, nor the binding ruling in Boody, a separate case, amounts to a 'material alteration of the legal relationship of the parties' that is 'judicially sanctioned,' as required in Buckhannon. For the foregoing reasons, the district court’s grant of attorney’s fees and costs to Klamath is reversed and vacated. The case is remanded for further proceedings consistent with this opinion.

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Friends Of Tims Ford v. TVA

Nov 6: In the U.S. Court of Appeals, Sixth Circuit, Case No. 08-5706. Plaintiff-Appellant Friends of Tims Ford (FTF) appeals from the district court’s dismissal of its case on summary judgment for want of standing. FTF is an unincorporated association of individuals, families, and homeowners’ associations, who own property adjoining the Tims Ford Reservoir (Reservoir) or in adjacent communities, and are concerned about the environmental impact of land development near the Reservoir and the environmental impact of increased boating on, and community use of, Reservoir water. FTF seeks declaratory and injunctive relief against the Tennessee Valley Authority (TVA) and James Fyke, in his official capacity as Commissioner of the Tennessee Department of Environment Conservation (TDEC), for alleged violations of the National Environmental Policy Act of 1969 (NEPA) by TVA and TDEC in their implementation of the Tims Ford Reservoir Land Management and Disposition Plan (LMDP), based on the Final Environmental Impact Statement (FEIS) prepared by TVA and TDEC, and for violations of the TVA Act of 1933 (TVA Act) in the development of two parcels of land, Fanning Bend, and a parcel conveyed to the City of Winchester, Parcel 79B. FTF has also brought state law claims against TDEC.

The Appeals Court agreed with the district court and said, "Because we find that FTF has failed to demonstrate standing to bring this case, we affirm the district court’s decision to dismiss this action without prejudice. The Sixth Circuit further explained its decision saying, ". . .we are compelled to find that FTF has failed its burden to demonstrate standing. Under this theory of harm, FTF has failed to allege future injury that could be redressed by the requested declaratory or injunctive relief, as its two members only allege direct harm from already-constructed community boat docks, yet seek: (1) issuance of a declaratory judgment that implementation of the FEIS/LMDP violates the TVA Act and NEPA; and (2) an injunction against unidentified future construction. . . Furthermore, because FTF’s suit does not additionally seek the destruction or modification of the community boat docks, nor does it seek, as noted by the district court, 'remedial measures to counteract or prevent the harms allegedly caused by the current docks,' there is no value to a declaratory judgment stating that TVA and TDEC violated NEPA and the TVA Act. . . Thus, FTF lacks standing to bring its claim alleging ongoing harm to its members’ aesthetic and recreational enjoyment of the Reservoir."

Access the complete opinion (click here).

Nkihtaqmikon v. Imson

Oct 28: In the U.S Court of Appeals, First Circuit, Case No. 08-2122. The appeal is the second in continuing litigation by a group of members of the Passamaquoddy Tribe called Nulankeyutmonen Nkihtaqmikon (NN) -- the phrase means "We Protect the Homeland," -- to challenge a Bureau of Indian Affairs (BIA) decision which approved a lease of a plot of Passamaquoddy land for the construction and operation of a liquefied natural gas (LNG) facility, contingent on Federal regulatory approval being obtained from the Federal Energy Regulatory Commission (FERC).

Based on a previous ruling by the Appeals Court in this case that the "exhaustion of agency remedies was 'mandatory' under governing precedent," the district court on remand dismissed the case -- leaving NN to pursue its internal Interior Department appeals before resuming (if necessary) litigation in the district court.

As stated by the Appeals Court, NN's main argument against the prior decision is that "unless a statute requires exhaustion, judicial review of agency action under the APA, applicable where no other statutory channel of review is provided, does not require exhaustion unless there is both internal agency review available and the final agency action is rendered inoperative during such review."

The Appeals Court rules that the NN "attack is foreclosed by our mandate unless our earlier decision was plainly wrong and following it would cause a serious injustice. Neither condition has been satisfied. . . None of these developments affects our analysis in the present appeal. The district court's judgment is affirmed."

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Center For Biological Diversity v. US Department of Interior

Sep 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16423. The Center for Biological Diversity (CBD), the Western Land Exchange Project, and the Sierra Club (collectively, Appellants) sued Asarco LLC (Asarco), a mining company, and the Department of Interior and the Bureau of Land Management (collectively, BLM). Appellants contend that the BLM’s approval of a land exchange violated the National Environmental Policy Act (NEPA) and the Mining Law of 1872. If the proposed exchange occurs, Asarco would take fee simple ownership of the land. In that event, Asarco’s use of the land would not be subject to the requirements of the Mining Law of 1872. If the proposed exchange does not occur, the land will continue to be owned by the United States. In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872.

Specifically, Asarco could not conduct a new mining operation on the land without first submitting a Mining Plan of Operations (MPO) to the BLM. The MPO would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would then have to approve the MPO before the new mining could proceed.

As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement (FEIS) pursuant to NEPA. In the FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environmental consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision (ROD) approving the land exchange. The ROD, like the FEIS, contains no analysis of how the environmental consequences -- and the implications for the public interest -- would differ depending on whether the proposed land exchange occurs.

In a split decision, the Appeals Court ruled, "Because the BLM has conducted no comparative analysis, we hold that it has not “taken a ‘hard look’ at the environmental consequences of its proposed action” in violation of NEPA, Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was “arbitrary and capricious” in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). We reverse the decision of the district court approving the actions of the BLM."

In a lengthy and harshly critical dissenting opinion, Justice Tallman said, "It has been said that the life of a canary in a coal mine can be described in three words: short but meaningful. So too apparently was the life of our decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc). . . Having carefully reviewed and evaluated the record, I staunchly disagree with the majority’s conclusion . . .

"This attempt to regulate agency action by judicial fiat quite clearly exceeds our authority. . . In sum, the majority’s creation of the novel quasi-MPO requirement grossly oversteps our role in reviewing agency action and is irreconcilable with our precedent. Indeed, it signals a return to the type of overly zealous scrutiny applied in Ecology Center, Inc. v. Austin, 430 F.3d 1057 (9th Cir. 2005), which we expressly overruled in Lands Council. See 537 F.3d at 990. . .

"Today’s opinion embodies the type of judicial meddling in agency action that we intended to put to rest in Lands Council. Its implications are far-reaching and severe. In order to achieve a particular result, my colleagues set the stage for a catastrophic collapse of the mine shaft timbers of deferential administrative law. For these reasons, I dissent. Has anyone seen the canary?"

Taylor McKinnon, public lands campaigns director with CBD said, “At stake in today’s decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species. This is a victory for them -- a victory that will save lives.” CBD said the proposed exchange would have given Asarco 10,976 acres of public lands in exchange for 7,300 acres of the company’s private holdings, and would have facilitated the expansion of Asarco’s Ray Mine, an open-pit copper mine located 65 miles east of Phoenix and 50 miles north of Tucson. By gaining private ownership of the land, Asarco would no longer be subject to Federal planning, reclamation, and bonding requirements designed to minimize and mitigate the environmental impacts of hard-rock mining operations.

Access the complete opinion and dissent (click here). Access a release from CBD (click here).

Sierra Forest Legacy v. Rey

Aug 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16892. This complicated appeal and decision concerns three United States Forest Service (USFS) projects -- Empire, Slapjack and Basin -- that attempt to fund fire prevention activities in the Plumas National Forest in California by awarding logging contracts to private parties. The Appeals Court said, "We must decide whether the district court abused its discretion by denying plaintiffs’ request to preliminarily enjoin the three projects."

USFS developed Empire, Slapjack and Basin under the “2004 Framework,” an amendment to the forest plans governing California’s Sierra Nevada region, including Plumas. Among other claims, plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), by failing to consider a reasonable range of alternatives before adopting the 2004 Framework.

The 2004 Framework replaced the “2001 Framework” as the operative land and resource management plan for the 11 national forests in the Sierra Nevada region. Whereas the 2001 Framework allowed logging of trees only up to 12-20 inches in diameter, depending on the characteristics of the land in question, the 2004 Framework allows the logging of trees up to 30 inches in diameter. The preliminary injunction plaintiffs seek would allow the Empire, Slapjack and Basin projects to proceed only to the extent they are consistent with the 2001 Framework.

In a previously filed opinion in this case, the Ninth Circuit held for plaintiffs, in part because we agreed that USFS failed to consider a reasonable range of alternatives to the 2004 Framework as required by NEPA. See Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231-32 (9th Cir. 2008) [See WIMS 5/14/09]. Plaintiffs were therefore likely to succeed on the merits. Under the legal standard then in effect, we held that the district court abused its discretion by not issuing plaintiffs’ requested preliminary injunction.

Defendants filed a petition for rehearing and petitions for rehearing en banc. The Appeals Court rules, "With this opinion, which supersedes our previously filed opinion, we grant the pending petition for rehearing and deny the pending petitions for rehearing en banc as moot. We will entertain new petitions for rehearing and petitions for rehearing en banc.

"We continue to hold that plaintiffs are likely to succeed on the merits of their NEPA claim. However, the Supreme Court’s intervening decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 374 (2008) [See WIMS 11/12/09], requires us to revisit our holding with respect to the factors governing preliminary relief other than likelihood of success on the merits -- irreparable harm, balancing of equities and the public interest. In light of Winter, we now hold that the district court erred because it did not assess these non-merits factors in the context of the narrow injunction plaintiffs requested -- to halt the three site-specific projects only to the extent they are inconsistent with the 2001 Framework. We have jurisdiction under 28 U.S.C. § 1292(a), and we reverse and remand so the district court can weigh the non-merits factors under the Winter standard, with reference to the narrow relief plaintiffs requested. . ."

Access the complete opinion (click here).

People of the State of CA v. USDA (Roadless Rule)

Aug 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15613 & 07-15695. As explained by the Appeals Court, this case involves procedural challenges to a United States Forest Service Rule known as the "State Petitions Rule." The plaintiffs, several states and various environmentalist organizations, contend that the State Petitions Rule was promulgated without proper process and that it is invalid. They urge us to affirm the district court, which set aside the State Petitions Rule and reinstated the Roadless Area Conservation Rule, more commonly known as the “Roadless Rule,” pending Forest Service compliance with the National Environmental Policy Act and the Endangered Species Act.

The Appeals Court said, "We agree with the plaintiffs that the promulgation of the State Petitions Rule effected a repeal of the Roadless Rule, which we previously found to afford greater protections to the nation’s roadless areas than those the individual forest plans provide. The Forest Service’s use of a categorical exemption to repeal the nationwide protections of the Roadless Rule and to invite States to pursue varying rules for roadless area management was unreasonable. It was likewise unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change. We affirm the district court’s order permanently enjoining the implementation of the State Petitions Rule because the Forest Service violated the National Environmental Policy Act and the Endangered Species Act when it promulgated the State Petitions Rule. We further conclude that the district court did not abuse its discretion in ordering the Forest Service to comply with the Roadless Rule as a remedy for these procedural shortcomings."

In it decision, the Ninth Circuit provides an overview of the factual background and procedural history of this lengthy litigation. Additionally, the Court also resolve disputes about the ripeness of the plaintiffs’ claims and the appropriate standard of review to apply to them.

Earthjustice, a party in the case issued a statement saying, "The Ninth Circuit Court of Appeals today affirmed protection for over 40 million acres of wild national forests and grasslands from new road building, logging, and development. The decision puts an end to the Bush administration's efforts to open these last great natural areas to development. Today's ruling protects the majority of national forest roadless areas in the country. . . Today's ruling not only affirms and reinstates the most popular environmental rule of all time, it frees the Obama administration to pursue President Obama's pledge to 'support and defend' the 2001 Rule -- including appealing an adverse ruling from a Wyoming federal court, ending the roadless protection exemption for the Tongass National Forest, and refraining from enacting specific state legislation, like that proposed in Colorado."

Earthjustice attorney Kristen Boyles said, "We're not out of the woods yet. This decision halts the Bush administration assault on roadless areas, but the Obama administration should now take the next steps necessary to make protection permanent." On May 28, 2009, Secretary of Agriculture Tom Vilsack announced the signing of an interim directive regarding inventoried roadless areas within the National Forests and Grasslands. At the time Vilsack said, "This interim directive will provide consistency and clarity that will help protect our national forests until a long-term roadless policy reflecting President Obama's commitment is developed." The directive provided decision-making authority to the Secretary over proposed forest management or road construction projects in inventoried roadless areas [See WIMS 5/29/09].

USDA indicated at the time, "In simultaneously upholding and overturning the 2001 Clinton roadless rule, the courts have created confusion and made it difficult for the U.S. Forest Service to do its job. The directive will ensure that USDA can carefully consider activities in these inventoried roadless areas while long term roadless policy is developed and relevant court cases move forward."

Access the complete opinion (click here). Access the release from Earthjustice (click here). Access the 1-page USDA Interim Directive (click here). Access the USDA Roadless Area Conservation website for more information (click here). Access the Heritage Forests Campaign website for extensive information and background on roadless areas (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).

River Runners For Wilderness v. Martin

Jul 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15112. The National Park Service entered a decision adopting a 2006 Colorado River Management Plan that the Plaintiff-Appellants contend is unlawful. Plaintiffs sought to have that decision set aside by the district court as arbitrary and capricious under the Administrative Procedure Act. The district court granted summary judgment to all defendants (i.e. Superintendent of Grand Canyon National Park, National Park Service, Department of Interior, et al).

The Appeals Court said, "The district court wrote an extensive and well-reasoned order, which is attached as an appendix. We agree with the order and adopt it as the opinion of our court." In its decision the district court explained that the case concerns the National Parks Service’s decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park. Plaintiffs contended that such motorized activities impair the wilderness character of the Canyon and that the Park Service’s decision violates its management policies and various federal statutes. The district court ruled that for reasons which it explains in its order that, "Plaintiffs have not satisfied the high threshold required to set aside federal agency actions under the APA."

Access the complete opinion (click here).

West Virginia Highlands Conservancy v. Kempthorne

Jun 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2189. The appeal arises from the Interior Board of Land Appeals’ (IBLA or Board) determination that the West Virginia Highlands Conservancy (WVHC) was not eligible for attorneys’ fees after prosecuting an administrative appeal to the IBLA. In the administrative appeal WVHC had challenged a decision of the Office of Surface Mining Reclamation and Enforcement (OSM) that rejected a citizen complaint filed by WVHC with the agency.

The appeal resulted in an IBLA remand order directing OSM to perform certain regulatory duties, including an investigation into whether it was required to reassert regulatory jurisdiction over a particular surface mining reclamation site pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

After the IBLA denied WVHC’s petition for attorneys’ fees in connection with the appeal, WVHC sought review of the denial in district court. The district court granted summary judgment to WVHC, holding that WVHC was eligible for an award of fees under SMCRA’s fee-shifting provision. The Appeals Court affirmed the district court ruling.

Access the complete opinion (click here).

Citizens for Better Forestry v. USDA

Jun 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16077. The United States Department of Agriculture (USDA), which includes the Forest Service, appeals the district court’s award of attorneys’ fees to Citizens for Better Forestry and eleven other environmental groups (collectively, Citizens) under the Equal Access to Justice Act (EAJA). In the underlying action, Citizens sought declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule.

In a prior action, the Ninth Circuit reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. However, before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. The Appeals Court ruled that because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.

Access the complete opinion (click here).

Montanans For Multiple Use v. Cathy Barbouletos

Jun 5: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-5131. In this case, several Montana organizations and citizens are concerned about the U.S. Forest Service’s management of the Federally-owned Flathead National Forest in northwest Montana. They want more of the forest to be made available for timbering and recreational activities. They filed a lawsuit against the Forest Service. A variety of environmental groups intervened against plaintiffs on the side of the Forest Service. Agreeing with the Forest Service and the environmental groups, the District Court dismissed plaintiffs’ complaint.

The Appeals Court affirmed the District Court decision because they said, ". . .plaintiffs cannot establish that the Forest Service has violated any federal law or otherwise taken action that is arbitrary and capricious under the Administrative Procedure Act. On the contrary, it is clear that plaintiffs’ grievance lies with legally permissible policy decisions made by Congress and the Forest Service. Plaintiffs’ plea for a new approach to management of the Flathead Forest is therefore best directed to the Legislative and Executive Branches."

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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."

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Miccosukee Tribe of Indians of Florida v. USA

May 5: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10799. The case involves what the Appeals Court says is one of the Corps of Engineers "unplanned environmental consequences” of its efforts to control the “river of grass” or the Everglades, of South Florida that flowed south from Lake Okeechobee to the Florida Bay. More specifically, the case involves the Cape Sable seaside sparrow (the sparrow) that lives primarily in and around Everglades National Park. It was listed as endangered in 1967 and received critical habitat designation in 1977. The fragility of the sparrow as a species stems from two of its attributes. It has a short lifespan and its nesting success depends on specific kinds of vegetation and water levels.

One of the sparrows subpopulations has decreased from more than 2,600 birds in 1992 to 112 birds in 2006. The Corps’ method of releasing water into the Everglades has been blamed for that decline. Also, at risk is the Everglade Snail Kite, a type of hawk, that was also listed as endangered in 1967 and received critical habitat designation in 1977. During a period of regional drought, Florida’s total kite population declined from 3,400 birds in 1999 to 1,700 in 2002, but it appears to have stabilized since then. The problem, of managing the two habitats is that the kites prefer steady and moderate to low water levels above one of the control gates (S-12), while the sparrows prefer low water below the S-12 gates.

The Corps and the Fish & Wildlife Service, consult with each other on habitat management and when a proposed agency action may adversely affect an endangered species or its critical habitat, the Service creates a “biological opinion” determining whether the action would jeopardize the species. Following the development of Corps plans and biological opinions the Miccosukee Tribe filed a lawsuit against the Fish & Wildlife Service, challenging the Interim Plan.

The Court of Appeals ruled that, "We do uphold the Fish & Wildlife Service’s conclusion that the kite will not be jeopardized by its sparrow-saving Interim Plan. The law, however, requires more. It requires that the incidental take statement contain an adequate trigger for re-consultation, and that a trigger must be expressed in population terms unless it is impractical to do so. Because those requirements are not met, the current incidental take statement must be modified or replaced. We vacate the district court’s judgment to the extent that it upholds the incidental take statement, but we affirm the judgment in all other respects, and we remand for further proceedings consistent with this opinion."

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Natural Resources Defense Council, Inc. v. FAA

May 1: In the U.S. Court of Appeals, Second Circuit, Case No. 06-5267. The Panama City-Bay County Airport and Industrial District (the sponsor), a state-chartered entity that owns and operates Panama City-Bay County International Airport proposed to close the existing airport at Panama City FL and to construct a new airport in western Bay County (the West Bay Site). Pursuant to the Airport and Airway Improvement Act (AAIA), the Sponsor sought and obtained approval for the construction project from the Federal Aviation Administration (FAA).

Petitioners Natural Resources Defense Council et al (NRDC) challenged the FAA's decision as a violation of the AAIA and the National Environmental Policy Act (NEPA), and requested that the court enjoin the FAA from implementing its decision. The Appeals Court concluded that, "Because the FAA's decision is not 'arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law,' we deny the petition for review and the relief sought therein."

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