Zanonia White v. United States of America

Apr 9: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-3158, appealed from the Southern District of Ohio at Columbus. Plaintiffs-Appellants appealed the district court's dismissal of their pre-enforcement challenge to the anti-animal-fighting provisions of the Animal Welfare Act (AWA), naming as defendants the United States, the Secretary and Department of Agriculture, the Attorney General and Department of Justice, and the Postmaster General and the United States Postal Service. The plaintiffs-appellants allege that these provisions are unconstitutional insofar as they "constitute a bill of attainder; violate the principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh Amendments to the United States Constitution; and unduly impinge on the plaintiffs-appellants' First Amendment right of association, constitutional right to travel, and Fifth Amendment right to due process for deprivations of property and liberty.

 

    The district court dismissed the lawsuit for lack of Article III standing, a decision that the Appeals Court affirmed. The targeted provisions of the AWA are contained in § 2156, which places restrictions on cockfighting and other "animal fighting ventures,"

defined as "any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 3 animals for purposes of sport, wagering, or entertainment."

 

    The Appeals Court explained and concludes that "By prohibiting the sale and transportation of chickens for fighting purposes, the AWA violates (or so the complaint argues) the plaintiffs' rights of travel and association, their 'rights to due process in the deprivation of their rights to property and liberty,' and their 'right to be free from bills of attainder' . . . In other words, the plaintiffs are correct that they need not actually violate the AWA in order to have standing. However, they still must demonstrate an injury-in-fact to a legally protected interest that is actual or imminent and that satisfies the other prongs of the constitutional standing test. The purported constitutional violations the plaintiffs allege do not satisfy this standard. . ."

 

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Medina County Environmental v. Surface Transportation Board

Apr 6: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-60108. The Appeals Court explains that the petitioner, the Medina County Environmental Action Association (MCEAA), sought review of a Construction and Operation Exemption Decision (the Decision) entered by one of the respondents, the Surface Transportation Board (STB). The Decision granted an exemption under 49 U.S.C. § 10502 that allows the intervenor, Southwest Gulf Railroad Co. (SGR), to construct and operate a seven-mile rail line and rail loading loop to service a proposed limestone quarry in Medina County, Texas, without meeting the prior approval requirements imposed by 49 U.S.C. § 10901.

 

    MCEAA petitioned the court directly for review of the Decision. At issue is whether the STB and the second respondent, the United States Fish and Wildlife Service (FWS), complied with their obligations under § 7 of the Endangered Species Act (ESA) to ensure that the proposed rail was "not likely to jeopardize the continued existence of any endangered species" before approving the exemption. 16 U.S.C. § 1536(a)(2). Specifically, MCEAA challenges the respondents' finding that the proposed rail and its "cumulative effects" are not likely to jeopardize the continued existence of the endangered golden-cheeked warbler, which is known to exist in Medina County, and of certain endangered karst invertebrates, which are known to exist in neighboring Bexar County.

 

    The Appeals Court denied MCEAA's petition for review of the Decision and also denied a separate motion to supplement the administrative record. The Appeals Court ruled, "The information that MCEAA urges from the proffered documents can be reduced to a simple proposition: When the golden-cheeked warbler's habitat is marginalized or destroyed by what MCEAA refers to as the 'edge effects' of development -- for example, land clearing, noise, lighting, and vibration -- the warbler will move, if possible, to an area where the habitat is better. All of the survey evidence available to the STB and FWS, however, showed that there were no listed species in the proposed rail and Phase One area -- rendering any analysis of whether the rail line and quarry activities would drive them out of that area superfluous.

 

    "Furthermore, the EIS documents discussed the quality and extent of potential habitat in the proposed rail and Phase One areas and gave extensive consideration to how construction and operations could proceed while best preserving the small amount of 'low quality' habitat present in the Phase One area. The documents with which MCEAA proposes to supplement the administrative record do not contain information potentially adverse to the Decision and do not set out additional factors that the STB and FWS failed to consider. Accordingly, we deny the motion to supplement the administrative record."

 

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Peconic Baykeeper, Inc. v. Suffolk County

Mar 30: In the U.S. Court of Appeals, Second Circuit, Case No. 09-0097. Defendants Suffolk County and the Suffolk County Department of Public Works, Division of Vector Control (County) employ various measures to combat the spread of mosquito-borne illnesses, including the use of pesticides intended to kill adult mosquitoes in mid-flight. Plaintiffs Peconic Baykeeper, Inc., Kevin McAllister and Alfred Chiofolo contend that the County violated the Clean Water Act (CWA), in its application of certain pesticides, and, separately, its dredging of mosquito ditches. Plaintiffs, who commenced this action under the CWA's citizen-suit provision, sought declaratory and injunctive relief, as well as civil penalties to be paid to the United States Treasury. Following a six-day bench trial, the district court found that the disputed mosquito-control activities were lawful under the CWA. Judgment was entered for the defendants, and plaintiffs appealed.

 

    The Appeals Court made a three-part ruling and vacated the judgment of the district court insofar as it held that the defendants' spraying activities were uniformly in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq.; and vacated insofar as it held, in the alternative, that the trucks and helicopters used to spray the pesticides were not "point sources" for the purposes of the CWA; and, affirmed insofar as it held that the County's dredging activities did not violate the CWA.

 

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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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West Bend Mutual Ins v. Federated Mutual Ins

Mar 25: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-2519. Plaintiff-appellant West Bend Mutual Insurance Company (West Bend) appeal from the grant of summary judgment in favor of appellees, who consist of a group of insurance companies that includes the United States Fidelity and Guaranty Company (Fidelity) and Federated Mutual Insurance Company (Federated). West Bend initially sued the defendants for breach of contract because Federated declined to defend a mutual insured in a class action alleging that insured's gas station contaminated groundwater in a residential neighborhood.

 

    The case revolves around "whether the pollution exclusion contained in Federated's policy effectively limited coverage for gasoline spills under Indiana law." The district court found that a clause in Federated's policy excluded coverage for this type of claim and granted summary judgment in favor of Federated, Fidelity, and other insurers. West Bend appealed the judgment as it applies to Federated and the Appeals Court, in a 2-1 split decision, affirmed the district court decision.

 

    The majority Appeals Court said, ". . .despite weak wording, the Federated products-hazard clause covered only knowingly completed market transactions and abandoned product. . . There is no doubt that the Bowens action was predicated on accidental leak of gasoline from MDK's storage tanks and West Bend never contended that the gas station abandoned its product. Therefore, the Federated Umbrella policy does not provide an independent source of recovery for the appellants."

    The dissenting Justice indicated, "I agree with my colleagues that the pollution exclusion in Federated's 2001-2003 CGL policy bars coverage under that policy. I do not agree, however, that the Indiana Supreme Court's decision in B & R Farm Services, Inc. v. Farm Bureau Mutual Insurance Co., 483 N.E.2d 1076 (Ind. 1985), precludes coverage under Federated's 2001-2002 umbrella policy.

That policy provides additional insurance for losses covered under '[t]he 'products-completed operations hazard' anywhere in the world.'"

   

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).] 

National Mining Association v. MSHA

Mar 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1241. The National Mining Association (NMA) and the Methane Awareness Resources Group (MARG) (hereinafter, together "industry") petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust. The decision, announced May 20, 2008, represented a change in MSHA's earlier expressed intent to issue a proposed rule to convert the final DPM exposure standard from a total carbon (TC) to an elemental carbon (EC) measurement. See Diesel Particulate Matter Exposure, Notice of Enforcement of DPM Final Limit and Withdrawal of Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20, 2008) (2008 Notice).

 

    On the same date, MSHA issued Program Policy Letter P08-IV-01 (2008 Policy Letter) describing how it intended to enforce the DPM standard. Industry contends MSHA's decision was arbitrary and capricious because it inadequately explained and was unsupported by scientific data, contrary to a 2002 settlement and to MSHA's statements to this court, and without public notice or opportunity to comment. MARG individually challenges the failure of the National Institute of Occupational Safety and Health (NIOSH) to release a study on DPM. 

 

    The Appeals Court denied the industry petitions and dismissed MARG's individual challenges for lack of jurisdiction. In this complex case, the Appeals Court challenges NMA's position on a number of fronts and says: "NMA's suggestion that MSHA's 'misrepresentations,' Pet'r NMA Br. 22, albeit unintentional, cast a cloud over the legitimacy of the DPM standard of 160 TC does not advance its position" ; "Industry is on no firmer ground in contending that the 2008 Notice's withdrawal of MSHA's rulemaking intent violated the terms of the 2002 Settlement arising from challenges to the 2001 Rule" ; ". . .industry repudiated the 2002 Settlement when it petitioned for review of the 2001 Rule in Kennecott. . . MSHA was no longer bound by the 2002 Settlement when it issued the 2008 Notice" ; "NMA is mistaken when it suggests that on the basis of the Noll-Bugarski Study, MSHA effectively 'repromulgated the 160 TC standard'" ; and "the 2008 Notice was not subject to APA notice and comment procedures."

 

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Milwaukee Metropolitan v. American International Specialty

Mar 10: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1645, 09-1715 & 09-1783. The Milwaukee Metropolitan Sewerage District is responsible for flood control and wastewater treatment in the greater Milwaukee area. As part of a flood control project, the District needed to acquire from Milwaukee County a piece of real estate along Lincoln Creek. The nominal asking price was $1.00. In anticipation of possible pollution clean-up costs, the project manager recommended obtaining insurance coverage, which the District directed its insurance agency to acquire. After a policy was issued, the District acquired title to the land. Soon thereafter, the District encountered significant pollution on the land. But when it submitted a claim to its environmental liability insurer, American International Specialty Lines Insurance Company (AISLIC), for costs incurred in removing the pollution, the insurer denied coverage.

    The District then sued AISLIC in Wisconsin State court seeking damages under several state law claims. Following removal to Federal court and a bench trial, the district court concluded that coverage for the pollution was appropriate. The court reformed the District's insurance policy with AISLIC to provide coverage for the pollution removal costs and entered judgment for $226,468.51

in favor of the District. The court also entered judgment in the same amount for AISLIC on its indemnity claim against Crump Insurance Services of Illinois, Inc. (Crump). AISLIC and Crump appeal from the district court's judgment, and the District cross-appeals the judgment and the denials of its post-trial motions.

 

    The Appeals Court reversed the judgment of the district court and remanded with instructions to enter judgment for AISLIC on the District's reformation claim and to dismiss AISLIC's indemnity claim against Crump as moot. The Appeals Court also dismissed the District's cross-appeal as moot. The Appeals Court explained further and said, ". . .the record indicates that the District knew that the policy would not include 'Lincoln Creek' as an insured property. From the very beginning of the District's efforts to obtain coverage for the Parcel, its agent Sedgwick was concerned that the information it was providing to Crump might not be sufficient for AISLIC to decide whether to provide coverage. . . Because its agent . . . knew that 'Lincoln Creek' would not be covered unless the District owned or operated the land, the District cannot reasonably claim to have proceeded under a mistake that the policy would cover the Parcel before satisfying that requirement. . ."

 

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]