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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Town of Marshfield v. Federal Aviation Administration

Dec 18: In the U.S. Court of Appeals, First Circuit, Case No. 07-2820. The Federal Aviation Administration (FAA) has authority to prescribe aircraft approach and departure patterns in order to minimize noise and ensure safety. In 2002, the agency approved a change in the runway layout of Logan Airport in Boston to include a new runway and, at the same time, began a study of improved noise abatement measures. The outcome was the "Boston Overflight Noise Study" (BONS), conducted with advice and participation by various organizations.

In implementing BONS, FAA adopted some of the report's "phase I" measures for the rerouting of aircraft to increase use of Logan approaches and departures over the ocean with shoreline crossings at higher altitudes. In finding that these measures required no environmental assessment (EA) or environmental impact statement (EIS), the FAA relied upon noise studies to measure the impact on surrounding communities. The Town of Marshfield, MA, opposed the new phase 1 measures, arguing that the new flight patterns would adversely affect its residents and sought review of the FAA's decision claiming violations of the National Environmental Policy Act (NEPA), the Federal Advisory Committee Act (FACA), and the FAA's own rules.

In analyzing the NEPA issues and denying the petition for review, the Appeals Court determined that FAA's noise exposure finding "is adequately based." Additionally, the Appeals Court said, "Marshfield seems to assert that an EA or EIS was required so long as the phase 1 measures were 'highly controversial,' which it regards as covering any introduction of new noise over inhabited areas and with opposition by a town or city. Although FAA Order 10501.1E, para. 304, uses the phrase 'highly controversial,' it makes clear that controversy is not decisive but is merely to be weighed in deciding what documents to prepare."

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League of Wilderness Defenders v. US Forest Service

Dec 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35780. In their suit under the Administrative Procedures Act (APA), the League of Wilderness and a number of environmental groups (collectively, LOWD) sought declaratory and injunctive relief to halt the Deep Creek Vegetation Management Project (the Project), which called for the selective logging of 12.8 million board feet of timber in the Ochoco National Forest. LOWD claims in its suit that the United States Forest Service (Forest Service) failed to comply with the National Environmental Policy Act (NEPA), and the National Forest Management Act (NFMA), in developing and implementing the Project.

The district court denied LOWD’s motion for summary judgment and granted the Forest Service’s cross-motion for summary judgment. The Appeals Court ruled, "Because the Final Supplemental Environmental Impact Statement (FSEIS) may not tier to a non-NEPA watershed analysis to consider adequately the aggregate cumulative effects of past timber sales, we reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the Forest Service can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis."

In its conclusion the Appeals Court said, "The Forest Service’s approval of the Project violates NEPA because the FSEIS may not tier to the non-NEPA Watershed Analysis to consider adequately the aggregate cumulative effects of past timber sales. We reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the agency can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the Watershed Analysis. Each party shall bear its own costs on appeal."

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South Carolina Wildlife Federation v. Limehouse

Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.

The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.

In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."

The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."

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Fund For Animals v. Kempthorne (Interior Department)

Sep 18: In the U.S. Court of Appeals, Second Circuit, Case No. 05-2603. In this case the Plaintiffs appeal from a decision of the district court that granted defendants, Department of Interior, Fish and Wildlife Service (FWS), a summary judgment and dismissing plaintiffs' claims challenging the defendants' Public Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of treaty obligations and Federal statutes. The Appeals Court affirmed the decision of the district court.

The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].

The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.

In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."

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Wong v. Bush

Sep 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16799. Plaintiff-Appellants (Appellants), many of whom participated in protests on August 26 and 27, 2007, oppose the Hawaii Superferry’s (HSF) operation to the Nawiliwili Harbor in Kauai, Hawaii, alleging that it is illegal. Appellants appeal the district court’s denial of their motion for declaratory relief, a temporary restraining order, a preliminary injunction, and a permanent injunction. They contend that by establishing a security zone to enable the HSF to dock at Nawiliwili Harbor, the United States Coast Guard violated their First Amendment right to free speech, the National Environmental Policy Act (NEPA), and 50 U.S.C. § 191 and 33 C.F.R. § 165.30, which govern the Coast Guard’s authority to create security zones safeguarding United States waters and harbors. The Appeals Court said that because the issue presented is “capable of repetition, yet evading review,” it is not moot. and affirmed the decision of the district court.

Appellants assert the Coast Guard violated NEPA by failing to consider the secondary effects of establishing the security zone, that is, the environmental effects created by the HSF’s operation. The Appeals Court said, "The Coast Guard did not exceed the regulatory authority granted to it in 50 U.S.C. § 191 and 33 C.F.R. § 165.30 when it established the security zone."

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Navajo Nation v. U.S. Forest Service

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 06-15371, 06-15436, 06-15455. In these consolidated cases, involving claims of violations of the Religious Freedom Restoration Act (RFRA), with numerous parties, the en banc Appeals Court issued a split decision with three Justices issuing a lengthy dissent. As summarized in the dissenting opinion, "The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the Religious Freedom Restoration Act (RFRA). It also holds that a supposed pleading mistake prevents the tribes from arguing under the National Environmental Protection Act (NEPA) that the Forest Service failed to consider the likelihood that children and others would ingest snow made from the effluent."

The majority defines the case saying, American Indians ask us to prohibit the Federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities.

The majority says, "We are called upon to decide whether this government approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (RFRA) . . ., the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds."

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Oregon Natural Desert Association v. BLM

Jul 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-35931. The Appeals Court indicates that the Bureau of Land Management (BLM) is charged with managing “the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people.” That task, which the Supreme Court has characterized as “enormously complicated,” Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55, 58 (2004), requires careful planning. The issue in the case is whether the BLM complied with the requirements of the National Environmental Policy Act of 1969 (NEPA), when it developed a land use plan covering a large portion of Oregon.

The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (ONDA) contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing “wilderness characteristics”; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM, and the Appeals Court reversed and remanded to the district court with instructions to remand to the Bureau.

The Appeals Court concluded, "The EIS violated NEPA in the ways we have stated. We hold unlawful and set aside the ROD approving the EIS and the Southeast Oregon Plan. See 5 U.S.C. § 706(2). The BLM may not implement the Plan without remedying the gaps in the EIS. Having addressed the problems we have identified, the BLM may decide to make different choices. NEPA is not a paper exercise, and new analyses may point in new directions. As a result, although ONDA also raises concerns regarding alleged substantive and procedural flaws within the Plan, we do not reach those issues today. The problems it identifies
may never arise once the BLM has had a chance to see the choices before it with fresh eyes. We therefore remand to the district court with instructions to remand to the BLM to remedy the deficiencies we have discussed."

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Lands Council v. Martin (U.S. Forest Service)

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35804. As explained by the Appeals Court, a forest fire burned thousands of acres of national forest in southeastern Washington. The U.S. Forest Service initiated a salvage logging operation, and the Appeals Court was called upon to determine whether the Forest Service took the requisite “hard look” under the National Environmental Policy Act of 1969 (NEPA), and whether it complied with the National Forest Management Act of 1976 (NFMA).

Plaintiffs, The Lands Council, Oregon Wild, Hells Canyon Preservation Council, and Sierra Club, which are environmental organizations, appealed the district court’s grant of summary judgment to the Defendants Forest Service and the Forest Supervisor of the Umatilla National Forest. American Forest Resource Council, Boise Building Solutions Manufacturing, L.L.C., and Dodge Logging, Inc., which are a forestry advocacy organization and logging companies, joined Defendants as intervenors.

The Appeals Court ruled that the Forest Service failed to include an adequate discussion of the effects of proposed logging on two significant roadless areas; however, it otherwise affirmed the decision of the district court in favor of the Forest Service. In summary, the Appeals Court concluded in part that, ". . . the Forest Service was required to discuss the effects of the proposed logging on the roadless character of both roadless areas. Smith [Smith v. United States Forest Service, 33 F.3d 1072 (9th Cir. 1994)] held that the size of an uninventoried roadless area must be considered in combination with the size of any contiguous inventoried roadless area. The size of Upper Cummins Creek combined with the size of contiguous Willow Springs is more than 5,000 acres. We make clear today that the rule in Smith applies to roadless areas that are either greater than 5,000 acres or of a “sufficient size” within the meaning of 16 U.S.C. § 1131(c). The West Tucannon roadless area falls within the scope of that rule. . ."

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Sierra Club v. Flowers (Army Corps)

May 9: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 07-13297. Sierra Club brought the action against the Army Corps of Engineers (Corps) after the Corps granted Rinker Materials and other mining concerns (Miners) Clean Water Act (CWA) permits. The Miners sought to extract high-quality limestone from the “Lake Belt” area -- a stretch of 60,000 acres of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act (APA). The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees’ motion
and found that, for numerous reasons, the Miners’ permits were due to be vacated.

The Appeals Court said, "After reviewing the voluminous record, reading the parties’ briefs, and having the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps’s environmental analysis." A two Justice majority ruled further, "The district court seems to have predetermined the answer to the ultimate issue, concluding that the Corps should not permit mining in the Lake Belt, and analyzed the permitting process with that answer in mind. . . In other words, no matter what the Corps concluded, and no matter what evidence supported that conclusion, the court would have banned mining because of its own conclusion that mining in the Lake Belt is a bad thing. . . The discretion to grant or deny CWA permits, however, is first given to federal agencies, not federal courts. Again, we offer no opinion as to whether the Corps complied with NEPA or the CWA during the permitting process. We instead remand to the district court to answer those questions in the first instance, applying the proper standard of review. The APA-CWA judgment, the APA-NEPA judgment, and the Remedies Order are vacated, and the case is remanded for further proceedings consistent with this opinion."

A concurring in part and dissenting in part opinion, the minority Justice said, "Although I agree with much of the majority’s opinion, I must respectfully dissent from its judgment. Specifically, I agree that we have jurisdiction, that the Endangered Species Act claim was mooted, and that the district court’s NEPA analysis was erroneous. But I would affirm the district court’s disposition of the Clean Water Act claim, as well as its remedial decisions. . . I believe the district court correctly determined that the Corps violated the Clean Water Act in the permitting process, I would affirm on that basis the district court’s judgment vacating the permits. . . Although the district court made some misstatements of law in its CWA analysis, I believe they are harmless error and that the record contains a sufficient basis to affirm the judgment. . ."

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Michigan Gambling Opposition v. Kempthorne

Apr 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5092. As explained by the Appeals Court, in 2005, the Assistant Secretary for Indian Affairs of the Bureau of Indian Affairs of the Department of Interior decided to take 147 acres of land in Wayland Township, Allegan County, Michigan, into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the Tribe), to construct and operate a Class III casino. The decision followed Federal recognition of the Tribe in 1998.

A non-profit Michigan membership organization -- Michigan Gambling Opposition (MichGO) -- sued the Secretary of the Interior, the Bureau of Indian Affairs (BIA) and the National Indian Gaming Commission (NIGC) (collectively the DOI) alleging that the DOI’s approval of the proposed casino violated the National Environmental Protection Act (NEPA), and that section 5 of the Indian Reorganization Act (IRA), was unconstitutional. The district court granted summary judgment to the DOI, and MichGO appealed the decision.

As BIA studied the Tribe’s proposal, it prepared an environmental assessment (EA) under the auspices of NEPA. The EA analyzed the effects the proposed casino would have on area wildlife, air and water; farming in the vicinity; and nearby communities. One of the issues addressed by the EA was the possibility that the casino would increase local traffic. Having concluded that proposed measures would sufficiently alleviate traffic delays and that other potential problems identified in the EA would also be mitigated, the BIA and the NIGC both issued Findings of No Significant Impact (FONSI) with respect to the casino project and announced their intent to acquire the Bradley property and allow the casino.

MichGO filed its lawsuit in June 2005, and on the NEPA matters alleged that the preparation of a FONSI rather than an environmental impact statement (EIS) violated NEPA. MichGO contended that the Tribe’s casino is large and controversial, and that the DOI is thus required by law to prepare a full EIS. To support its contention, MichGO relies on the 2005 “Checklist for Gaming Acquisitions,” distributed to regional directors by the BIA, which provides that proposals for large, and/or potentially controversial gaming establishments should require the preparation of an EIS. MichGO maintains that 40 C.F.R. § 1501.4(a) requires an EIS to be performed if mandated by internal DOI guidelines such as the Checklist.

The Appeals Court, with one Justice dissenting in part on non-NEPA issues, held that DOI did not violate NEPA and that section 5 of the IRA is not an unconstitutional delegation of legislative authority. On the NEPA issue, the Appeals Court said, "The premise underlying MichGO’s contention is flawed. Section 1501.4(a) does not make the Checklist binding on the DOI. . . The DOI complied with these requirements when it established its NEPA procedures, now codified in its manual. . . These procedures do not encompass the Checklist. . . The manual does, however, include lists of activities that under its procedures normally require or do not require an EIS or EA.. . . Gaming activities are not included in these lists. In these circumstances, the section 1501.4(b)-(c) process -- EA preparation followed by a decision on whether to prepare an EIS -- is applicable. The DOI followed these procedures and lawfully determined not to prepare an EIS on the basis of the EA."

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Friends of Yosemite Valley v. Kempthorne

Mar 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-15124. The Appeals Court explains that, "Twenty years after the Merced River, which lies in the heart of the Yosemite National Park, was designated a Wild and Scenic River, and seventeen years after the National Park Service (NPS) was statutorily required to prepare a Comprehensive Management Plan (CMP) for the Merced Wild and Scenic River, the question whether NPS has developed a valid CMP is again before us. In 2003, we found certain deficiencies in an earlier CMP -- the 2000 CMP -- and remanded it to the district court."

Interior Department Secretary Kempthorne and the NPS argue that the district court erred in finding that (1) the Merced Wild and Scenic River -- Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement (2005 Revised Plan) fails sufficiently to “address . . . user capacities” as required; (2) the 2005 Revised Plan is deficient because it is not a wholly self-contained plan; and (3) the supplemental environmental impact statement (SEIS) prepared for the 2005 Revised Plan violates NEPA.

The Appeals Court affirmed the district court ruling and said, "We hold that the 2005 Revised Plan does not describe an actual level of visitor use that will not adversely impact the Merced’s Outstanding Remarkable Values (ORVs) as required by Yosemite I and the WSRA [Wild and Scenic River Act], because the Visitor Experience and Resource Protection (VERP) framework is reactionary and requires a response only after degradation has already occurred. Moreover, the interim limits are based on current capacity limits and NPS has not shown that such limits protect and enhance the Merced’s ORVs. And, as we made clear in Yosemite II, we again conclude that the WSRA requires that the CMP be in the form of a single, comprehensive document, which addresses all the required elements, including both the 'kinds' and 'amounts' of use, and thus the 2005 Revised Plan is deficient because it addressed only the two components struck down in Yosemite I and was not a single, self-contained plan. Finally, we conclude that the SEIS violates NEPA because the 'no-action' alternative assumed the existence of the very plan being proposed; the three action alternatives -- which are each primarily based on the VERP framework -- are unreasonably narrow; and for the first five years, the interim limits proposed by the three alternatives are essentially identical."

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NRDC v. Winter (Secy. of the Navy)

Feb 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-55054. Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS), and two Administrators of the National Oceanographic and Atmospheric Administration (NOAA) appeal the district court’s January 3, 2008 order [See WIMS 1/7/08], as modified on January 10, 2008 , granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy’s Third Fleet in the waters off the coast of southern California between February 2007 and January 2009 (the SOCAL exercises).

The motion was filed by plaintiffs Natural Resources Defense Council, Inc., International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively NRDC), who are concerned that the Navy’s use of high-intensity, mid-frequency active sonar (MFA sonar) in the SOCAL exercises will cause serious harm to various species of marine mammal present in the southern California waters, and by extension, to plaintiffs themselves.

In granting NRDC’s motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act (NEPA), by failing to prepare an Environmental Impact Statement (EIS). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act (CZMA), by submitting a consistency determination to the California Coastal Commission (CCC) that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program (CCMP).

On January 15, 2008, the Council on Environmental Quality (CEQ) purported to approve “alternative arrangements,” pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy’s use of MFA sonar in the SOCAL exercises [See WIMS 1/17/08]. On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs’ NEPA claim, concluding CEQ’s action was invalid and therefore not entitled to deference [See WIMS 2/6/08]. The district court also expressed concerns about the constitutionality of the President’s CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.

However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds. The district court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs’ favor. Natural Res. Def. Council v. Winter, --- F.Supp 2d ----, 2008 WL 314192 (C.D. Cal. Feb. 4, 2008) (Feb. 4, 2008 Dist. Ct. Order). The Ninth Circuit upheld the district court’s preliminary injunction.

NRDC issued a release on March 1 saying that the, "appeals court last night rejected the Bush administration’s unprecedented effort to exempt the U.S. Navy from federal environmental laws as it engages in high-intensity sonar training off southern California." NRDC said further, "In a comprehensive 108-page opinion, a three-judge panel also upheld every element of a lower court order requiring the Navy to take precautions during the sonar training to minimize harm to whales and other marine mammals. The Navy itself estimates that its 'SOCAL' sonar exercises, an on-going series of drills being conducted over two years, will significantly disturb or injure 170,000 marine mammals, including causing permanent injury to more than 450 whales and temporary hearing impairment in at least 8,000 others. The court’s opinion is a precedent from the nation’s second-highest court that will govern ongoing and future litigation between environmental groups and the military in California, Hawaii, and elsewhere."

Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit, who argued the case in the courts said, “The court’s detailed ruling strikes the right balance between national security and environmental protection, and properly rejects the unlawful waiver the Navy obtained from the White House. Based on thousands of hours of Navy training reports, we proved that the Navy is able to conduct the necessary training of its sailors using the environmentally-responsible measures ordered by the court.”

Access the 6-page order (click here). Access the 108-page opinion (click here). Access a lengthy release from NRDC with links to related information (click here).

American Bird Conservancy v. FCC

Feb 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-1165. The American Bird Conservancy and Forest Conservation Council petitioned the court for review of an order by the Federal Communications Commission (FCC), denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In their petition the groups claimed that FCC rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Migratory Bird Treaty Act (MBTA). The Appeals Court, in a 2-1 decision, vacated the FCC Order saying the "Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications."

In the case environmental groups claimed that towers kill 4 million to 50 million birds per year, while industry groups claimed that such claims are overstated. In 2005, FCC dismissed the groups' Gulf Coast region petition and said it would address aspects of the migratory bird issue as part of a separate docket examining the issue on a nationwide basis. In 2006, as part of its nationwide inquiry on the issue, FCC also “tentatively” proposed that communications towers use “medium intensity white strobe lights” rather than red lights that may present a higher risk of tower kill. The comment period in the nationwide rulemaking proceeding closed in May 2007, but the Commission has yet to take final action. In the meantime, in May 2006, the petitioners continued their legal challenge and sought review of the FCC regional order.

In its final decision, the two judge majority ruled, ". . .except as regards deferral of the MBTA issue, we vacate the Order and remand the case to the Commission to comply with NEPA and ESA. The results of the NPRM may inform the Commission’s decision on remand, but the nationwide proceeding neither incorporates nor supplants the Gulf Coast petition. The Commission has amassed a wealth of information during the past five years, including reports from other federal agencies such as the FWS, a report from its own consultant in 2004, as well as a second round of comments from interested persons. Guided by this opinion, the Commission should be able to proceed with dispatch on remand to resolve the Gulf Coast petition, whether separately or as part of the nationwide proceeding." On the MBTA issue the Appeals Court said, ". . .the Commission acted reasonably in deferring consideration of this issue."

Judge Kavanaugh, in a dissenting opinion said, "I would dismiss their lawsuit as unripe because the FCC, in a separate rulemaking proceeding, is re-examining these environmental issues and considering the effects of communications towers on birds nationwide, including in the Gulf Coast region. . ."

According to a release from Earthjustice who represented environmental groups in the case, tens of thousands of communication towers dot landscapes across the country. In Texas alone, there are over 10,000 of these towers. Each month, the FCC receives more than 20 new applications for tower construction. They said the situation is critical along the Gulf Coast where thousands of communications towers dot the 1,000-mile stretch of coastline between Pt. Isabel, Texas and Tampa Bay, Florida.

Darin Schroeder, American Bird Conservancy's Executive Director of Conservation Advocacy said, "We are very pleased by today's ruling which will require the FCC to assess the environmental impacts of towers. Given the large number of bird deaths caused by towers, an environmental review is long overdue. The ruling will also require FCC to better protect endangered species by consulting with wildlife experts before permitting decisions are made. This is a huge victory for migratory birds and the millions of Americans who love to see them each year."

Access the complete opinion (click here). Access a release from Earthjustice (click here).

State of Missouri v. U.S. Army Corps of Engineers

Feb 8: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-1149. The United States Army Corps of Engineers (Corps) manages the Missouri River Mainstem Reservoir System (the System) under the Flood Control Act of 1944. The System consists primarily of a series of dams and reservoirs on the upper River. The Corps’ governing operational document is the Missouri River Mainstem Reservoir Master Water Control Manual (the Master Manual), which has been revised five times since its initial adoption in 1960. The Corps also publishes specific operational details in an Annual Operating Plan.

In recent years, persistent drought conditions have challenged the Corps’ ability to perform its dominant Flood Control Act functions of flood control and maintaining downstream navigation while also continuing to benefit secondary uses such as irrigation, recreation, fish, and wildlife. Forced to make difficult choices, the Corps has faced repeated lawsuits by competing beneficial users of the River as controlled by the System. In South Dakota v. Ubbelhode, the Eighth Circuit reversed the grant of preliminary injunctions preventing the Corps from releasing drought-depleted waters from reservoir lakes in South Dakota and North Dakota in order to maintain downstream navigation.

Meanwhile, environmental groups sued, and the Judicial Panel on Multi-District Litigation consolidated all actions in the District of Minnesota. In March 2004, the Corps issued a revised Master Manual (the 2004 Master Manual) containing provisions prompted by a Biological Opinion issued by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act. Competing users challenged the actions of both agencies on numerous grounds. In In re Operation of the Missouri River System Litigation, (2006) (hereinafter Mo. River), the Eighth Circuit affirmed the district court’s grant of summary judgment in favor of both agencies.

The Appeals Court explains, "In this action, a sequel to Mo. River, the State of Missouri claims that the Corps violated the National Environmental Policy Act (NEPA) by implementing March 2006 revisions to the 2004 Master Manual without preparing a supplemental environmental impact statement (SEIS). The district court granted the Corps’ motion for summary judgment. Missouri appeals. We conclude that the Corps’ actions were not arbitrary and capricious and therefore affirm."

In its final analysis the Appeals Court makes an important observation saying, "Finally, Missouri argues that the Corps violated NEPA when it failed to follow the EA with either an EIS or a FONSI [finding of no significant impact}. This is an unduly restricted view of the agency’s options for complying with NEPA’s procedural mandates. The Corps’ regulations provide that an EA is used 'for determining whether to prepare an EIS or a FONSI,' and '[a] FONSI shall be prepared for a proposed action . . . for which an EIS will not be prepared.' 33 C.F.R. §§ 230.10(a), 230.11. However, these provisions must be read in conjunction with CEQ’s implementing regulations, see 33 C.F.R. § 230.1, which sensibly provide that '[a]gencies may prepare an environmental assessment on any action at any time in order to assist agency planning and decisionmaking.' 40 C.F.R. § 1501.3(b). Neither the Corps’ nor CEQ’s regulations prescribe a specific process to determine whether to prepare an SEIS. Here, the Corps prepared an EA, not to help it decide whether to prepare an EIS, but rather to determine whether the change in agency action required an SEIS. As this case illustrates, it is reasonable to expect that the Corps will sometimes determine that a FONSI is not appropriate because the action being taken has a significant impact on the environment, but an SEIS is not required because the impact was sufficiently analyzed in an earlier FEIS. This approach is neither a misuse of the EA procedure nor a violation of NEPA."

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Feldman v. Bomar (National Park Service)

Jan 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-55675. Richard Feldman, Robert Lee Puddicombe, and In Defense of Animals (IDA) (collectively Appellants) appeal the judgment in favor of the Nature Conservancy (TNC), the National Park Service (NPS), NPS’s director, and the Chief of Natural Resources Management at Channel Islands National Park (collectively Appellees) on their claims that Appellees violated the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) in adopting NPS’s program to restore and protect Santa Cruz Island by, in part, eradicating its feral pig population.

Appellants do not dispute that the pigs threatened Santa Cruz Island’s ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the
mainland, and they challenge NPS’s process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the Appeals Court granted Appellees’ motion to dismiss the appeal as moot. The Appeals Court said, "Appellees have met their heavy burden of demonstrating that 'no effective relief for the alleged violation[s] can be given,'" citing, Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).

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Bering Strait Citizens v. US Army Corps of Engineers

Jan 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35506. The appeal concerns a permit issued to Defendant-Appellee Alaska Gold Company (AGC), by Defendant-Appellee Army Corps of Engineers (the Corps) for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act (CWA) which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. The project, known as the “Rock Creek Mine Project,” would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres.

Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, et al (collectively, BSC), allege that the Corps violated the CWA and the National Environmental Policy Act (NEPA) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.

In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, 'co-disposal' of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA."

On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA."

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