National Parks & Conservation Association v. BLM

Nov 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-56814, 05-56815, 05-56843, 05-56832, and 05-56908. Kaiser Eagle Mountain, Inc. (Kaiser) seeks to build a landfill on a former Kaiser mining site near Joshua Tree National Park (Joshua Tree). As part of its landfill development plan, Kaiser sought to exchange certain private lands for several parcels of land surrounding the mine site and owned by the Bureau of Land Managment (BLM). Several parties, including the National Parks Conservation Association (Conservation Association) and Donna and Laurence Charpied (the Charpieds), challenged the land exchange. Nevertheless, the BLM approved the land exchange, as did the Interior Board of Land Appeals (Appeals Board).

The Conservation Association and the Charpieds pursued their challenges in district court on several grounds, including violations of the Federal Land and Policy Management Act (Management Act) and National Environmental Policy Act (NEPA). The district court held for the Conservation Association and Charpieds on the Management Act claims and some, but not all, of the NEPA claims. Under its review, the Appeals Court in a split decision, affirmed in part and reversed in part.

In this somewhat complicated decision, involving several conclusions on separate disputed issues, the majority Appeals Court ruled in part that, "BLM necessarily considered an unreasonably narrow range of alternatives. We therefore affirm the district court’s grant of summary judgment on both the 'purpose and need' and “reasonable range of alternatives” claims under NEPA."

And, "Contrary to the district court’s conclusion, we find that the EIS contains extensive analyses of potential impacts on Bighorn sheep, including migration patterns, habitat loss, and water accessibility. . . [However,] the discussion of [atmospheric] eutrophication is neither full nor fair with respect to atmospheric eutrophication. . . We therefore affirm the district court’s decision on this NEPA claim.

". . .we affirm the district court’s holding that the Charpieds lack standing under NEPA, the National Park Service Organic Act, and the California Desert Protection Act. . . [Also,] "we find that the EIS’s discussion of these issues [desert tortoises, visual, noise, and night lighting impacts, groundwater, and air quality] is sufficient to foster informed decision-making and public participation. We therefore affirm the district court’s grant of summary judgment on these NEPA claims."

Perhaps, most interesting in this case is the lengthy dissenting opinion of Justice Trott. In summary he says, "What sane person would want to attempt to acquire property for a landfill? Our well-meaning environmental laws have unintentionally made such an endeavor a fool’s errand. This case is yet another example of how daunting -- if not impossible -- such an adventure can be. Ulysses thought he encountered fearsome obstacles as he headed home to Ithaca on the Argo, but nothing that compares to the 'due process' of unchecked environmental law. Not the Cyclops, not the Sirens, and not even Scylla and Charybdis can measure up to the obstacles Kaiser has faced in this endeavor. The record here exceeds 50,000 pages. At the beginning, Kaiser had a partner, Browning-Ferris Industries (BFI), but BFI -- a company experienced in the field of solid waste disposal -- dropped out after investing $45 million in the project with nothing to show for it in return.

"I agree with my colleagues insofar as they dispense with the cross-appeal and the public interest and bighorn sheep issues, but I dissent with respect to the rest. The final irony is that my colleagues send the case back to the Bureau of Land Management (BLM) to do something BLM has already adequately done: consider the value of the land involved as a commercial landfill." In the final conclusion of his 49-page dissent, Judge Trott said, "I end with the Technical Advisory Panel’s evaluation: 'the proposed Eagle Mountain Landfill could well become one of the world’s safest landfills and a model for others to emulate.' Don’t hold your breath."

Access the complete opinion (click here).

Norton Construction v. U.S. Army Corps

Jun 2: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3826. The appeal involved plaintiff Norton Construction Company’s application for a permit to construct a new landfill in an area subject to defendant United States Army Corps of Engineers’ jurisdiction. The Corps refused to process the application, citing a Congressional appropriation act that the Corps construed as forbidding it from processing applications for new landfills in the area that it considered to be within the Muskingum Watershed. Norton unsuccessfully challenged the decision in district court. The district court ruled that the Corps reasonably interpreted the statute and that the law did not violate Norton’s constitutional rights. Norton appealed the decision and the Sixth Circuit affirmed the district court decision.

Norton applied for a Section 404 permit, but the Corps returned the application without acting upon it because Congress enacted a temporary appropriations rider, which in the opinion of the Corps, prohibited the Corps from processing its application. Subsequently, Congress passed and the President signed the Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, 119 Stat. 2247 (2005). Section 103 of the Act, enacted as a regular appropriations statute rather than as a temporary appropriations rider, prohibited the Corps from granting new landfill applications, "In order to protect and preserve the integrity of the water supply against further degradation," in the “Muskingum Watershed.”

The Appeals Court indicates that the case was made more difficult by its "ever-changing legal landscape." At first, by means of a temporary appropriations rider, Congress prohibited the processing of new landfill applications in the area of the Muskingum Watershed. Later, Congress reenacted this prohibition as part of a nonexpiring appropriations statute, thus prompting the current suit. Finally, while the present appeal was pending, Congress acted yet again by passing the Consolidated Appropriations Act of 2008. The Appeals Court explains that under different arguments it would still affirm the district court ruling and concludes "that declaring the case moot and again remanding for reconsideration in light of the latest statute would be a futile exercise and a needless waste of valuable judicial resources."

Rick's Mushroom Service Inc. v. U.S.

Apr 2: In the U.S. Court of Appeals, Federal Circuit, Case No. 07-5137. The case is an appeal from the United States Court of Federal Claims pertaining to a cost-share agreement between the government and Rick’s Mushrooms, Inc. (Rick’s) for implementing conservation practices in a facility for recycling of mushroom waste. Rick’s seeks indemnification from the government for costs incurred in defending and settling claims by a third party for violation of certain State and Federal environmental laws. The Court of Federal Claims dismissed the action for lack of subject matter jurisdiction. The Federal Circuit affirmed that decision.

As noted by the court, mushroom farming is a major economic activity in Chester County, Pennsylvania. Historically, the organic by-product waste of mushroom farming, known as "spent mushroom substrate" (SMS), was dumped in nearby woods or streams, resulting in severe nitrogen pollution. Rick’s operates an SMS transfer facility, which processes SMS by leaching out the excess nitrogen and then recycling it as potting soil or other products. Following a dispute regarding contamination and proper permitting, and an order by the district court, Rick’s agreed to settle the case for $950,000. Thereafter, the Natural Resources Conservation Service (NRCS) drafted a rehabilitation plan and a plan for a roof structure to help eliminate some of the problems with waste discharge. The NRCS did not indemnify Rick’s for its losses in the litigation and did not pay for the new roof structure.
On November 4, 2005, Rick’s submitted a claim under the Contract Disputes Act (CDA) to the contracting officer at the NRCS for $5 million in damages. J.A. 188-89. The claim alleged that the NRCS had breached its implied warranty of the specifications, and, as a consequence, Rick’s had incurred additional costs, including attorneys’ fees in defending the lawsuit; the lost value of its contribution to the original design, its substantial design revisions, and the installation of the new roof structure; and its liability for environmental impact. The court further held that, because the contract between Rick’s and the NRCS was a cooperative agreement and not a procurement contract, and there was no basis for jurisdiction under the CDA for the breach of contract claim. The court, therefore, dismissed the case for lack of subject matter jurisdiction.

The Federal Circuit said that the Court of Federal Claims did not err in concluding that it lacked subject matter jurisdiction to hear the professional negligence claim; it did not err in holding that it lacked subject matter jurisdiction over Rick’s breach of contract claim; did not err in dismissing Rick’s implied warranty claim for lack of subject matter jurisdiction; and found no abuse of discretion by the Court of Federal Claims in its dismissal of the professional negligence claim. It therefore, affirmed the Court of Federal Claim’s dismissal of Rick’s claims for lack of subject matter jurisdiction.

Access the complete opinion (click here).