McEvoy v. IEI Barge Services

Sep 7: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-3494. As explained by the court, East Dubuque, Illinois, is a small town on the Mississippi River. One local company that has profited from the river's proximity is IEI Barge Services, Inc. (IEI). IEI stores coal in an outdoor pile and loads it onto river barges. As the coal is moved around, coal dust is thrown off into the air. One of IEI's neighbors, Charles McEvoy, objected to the coal dust from IEI's

operations, because it was drifting into his home; he filed suit in Federal court. McEvoy's concerns were shared by others in the area.

 

    The Appeals Court notes that this suit, ". . .is about which legal tools are available to someone who wants to shift the cost of pollution to the polluter. We must consider whether the Clean Air Act. . . The district court concluded that the Act's citizen-suit provision does not support such an action. While we have no trouble recognizing why plaintiffs are seeking a remedy, we too conclude that the plaintiffs' allegations fall outside the scope of the Act."

 

    In its final opinion, the Appeals Court said, "Recognizing the ambiguity in the text of the regulation, we asked the parties during oral argument if they could identify any specific rules or background principles in Illinois law to guide our interpretation. The parties submitted supplemental briefs on this question, and we thank them for their efforts. In the final analysis, however, we were convinced by these submissions and our own research that it is not our role to flesh out this regulation without better guidance from the competent administrative bodies. In addition, we do not exclude the possibility that an Illinois court might be able to clarify some of the ambiguity. Any statements from the Illinois executive branch -- including, but not limited to, formal or informal guidance from the Illinois Environmental Protection Agency -- should be given due consideration by any court interpreting this provision and its interaction with the Act. Without any such guidance, however, we conclude that the Fugitive Particulate Matter regulation cannot be used as the basis of a citizen's suit under the Clean Air Act."

 

    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).] 

Western Watersheds Project v. Kraayenbrink

Sep 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35359. The Bureau of Land Management (BLM) is the Federal agency charged with overseeing livestock grazing on over 160 million acres of public land in the western United States. Pursuant to the BLM's authority under the Taylor Grazing Act of 1934, the BLM has adopted regulations that implement its grazing management responsibilities. On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM's grazing regulations. The stated purpose of the proposed amendments was to improve the working relationships with permittees and lessees (i.e. ranchers), to protect the health of rangelands, and to increase the administrative efficiency and effectiveness of the BLM grazing management program.

 

    Plaintiffs argued that the BLM violated the National Environmental Policy Act (NEPA) by failing to take the required "hard look" at the environmental effects of the revised regulations; failed to consult with the United States Fish & Wildlife Service (FWS) as required by the Endangered Species Act (ESA); and violated the Federal Land Policy and Management Act (FLPMA) in promulgating the 2006 Regulations. Shortly after the suit was filed, Public Lands Council and the American Farm Bureau Federation (collectively Intervenors -- two organizations that represent the interests of ranchers in the western states -- intervened on behalf of the BLM to defend the proposed amendments.

 

    The Appeals Court ruled, "Because we agree with the district court that the BLM violated NEPA and the ESA in adopting the 2006 amendments, we affirm the court's grant of summary judgment to Plaintiffs as to these claims. We also affirm the district court's permanent injunction enjoining the BLM regulations as set forth in the Federal Register of July 12, 2006, amending 43 C.F.R. Part 4100 et seq. Because the district court erred when it failed to consider Plaintiffs' FLPMA claim under the framework and with the deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), we vacate the district court's grant of summary judgment in favor of Plaintiffs on this claim and remand it for further consideration."

 

    Access the complete opinion (click here).

Modesto Irrigation District v. Gutierrez

Aug 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15214. This Endangered Species Act (ESA) case is a challenge to the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley. In listing the steelhead, NMFS defined it as a distinct species under the ESA, separate from rainbow trout, another type of Pacific salmon that breeds with and looks like the steelhead. The separate listing was a departure from the prior NMFS policy of classifying interbreeding Pacific salmon as a single species.

 

    Plaintiffs are irrigation districts in California's Central Valley whose operations are impeded by the listing. They contend that the listing violated the ESA because steelhead and rainbow trout interbreed, and the statute therefore requires NMFS to treat them as a single species. Plaintiffs also contend that NMFS violated the Administrative Procedure Act (APA) by failing adequately to explain its decision to adopt a new policy for classifying the fish.

 

    The Appeals Court said, "We agree with the district court that under the ESA, interbreeding is not alone determinative of whether organisms must be classified alike where, as here, they develop and behave differently. We also find that NMFS' explanation for its change of policy satisfies the standards set forth in the Supreme Court's recent decision in F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). We therefore affirm."

 

    In its conclusion the Appeals Court said, "The two narrow issues before this panel involve first a question of statutory interpretation and second, whether an agency provided an adequate justification for a policy change. We agree with the district court that the definition of "species" in the ESA did not require NMFS to place interbreeding steelhead and rainbow trout in the same DPS. We further hold that, under the Supreme Court's decision in Fox, NMFS sufficiently justified its decision to apply the DPS Policy to O.mykiss. We therefore affirm the district court."

 

    Access the complete opinion (click here).

Sheffield v. City of Fort Thomas

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5619. Plaintiff William Sheffield challenges several municipal ordinances enacted by the city of Fort Thomas, Kentucky, alleging that the ordinances violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations. The district court rejected all of Sheffield's challenges.

 

    The case involves the fact that between 1950 and the present day, the deer population within the state of Kentucky increased approximately five-hundredfold. According to the Kentucky Department of Fish and Wildlife Resources (DFWR), "deer are reaching a saturation point in many parts of the Commonwealth." Among the regions is the heavily wooded area surrounding the city of Fort Thomas (a suburb of Cincinnati, Ohio), whose residents have suffered increasingly from motor vehicle collisions with deer, landscaping damage due to deer, and other cervid-perpetrated problems. Eventually, the members of the Fort Thomas City Council decided to take action.

 

    Beginning in October 2006, a city administrative officer worked with DFWR representatives to develop a deer-management plan. Various options were considered, ranging from implementing a catch-and-release program to administering a birth-control drug derived from pig ovaries. In the end, the City Council opted for a three-part approach: (1) educating the public about deer-control tactics; (2) prohibiting deer feeding; and (3) permitting the hunting of deer by bow and arrow within the city limits, which DFWR representatives had advised was the most effective means of controlling the deer population in an urban area.

 

    Plaintiff, Sheffield claims are: (1) that all three Ordinances are preempted by Kentucky Statutes, which broadly regulates the Commonwealth's wildlife resources, and/or by Kentucky Administrative Regulations, which more concretely regulates hunting; (2) that the Bow-and-Arrow Ordinance violates the Due Process Clause of the Fourteenth Amendment of the United States  Constitution and the Kentucky Constitution because it infringes on his asserted "fundamental right to be free from a risk of serious bodily harm" and/or lacks a rational basis; and (3) that the Deer-Feeding Ordinance violates those same constitutional provisions because it is void for vagueness.

 

    The district court rejected all of Sheffield's challenges. The Appeals Court said, "With one exception, we agree with that conclusion. We hold, however, that the district court erred in concluding that Kentucky administrative regulations have no preemptive force as against Kentucky municipal ordinances. We therefore affirm in part and reverse in part."

 

    Access the complete opinion (click here).

U.S. v. Agosto-Vega

Aug 18: In the U.S. Court of Appeals, First Circuit, Case No. 09-1158 & 09-1159. This is a consolidated appeal from a jury verdict which found Appellants Braulio Agosto-Vega (Agosto) and Braulio Agosto Motors, Inc. (Agosto Motors) guilty of violating criminal provisions of the Clean Water Act (CWA). The principal issue presented is whether Appellants were deprived of their constitutional right to a public trial pursuant to the Sixth Amendment. The Appeals Court found that the District Court committed a structural error by excluding the public from the courtroom during the selection of the jury.

 

    The Appeals Court cited Presley v. Georgia, S. Ct. 721 (Jan. 19, 2010) and said, "We are thus required to vacate Appellants' convictions and remand their cases for a new trial. Nevertheless, considering that Appellants will have a new trial on the same charges, to prevent an allegation that they will be subjected to double jeopardy in violation of the Fifth Amendment by reason of this retrial, it is incumbent upon us to address Appellants' contentions that the government failed to present sufficient evidence at the first trial to allow the jury to conclude that they were guilty beyond a reasonable doubt of the charges presented against them. . . We conclude that the government proved the charges against Appellants by sufficient evidence to establish their guilt beyond a reasonable doubt.

 

    In Count One of the indictment charged Agosto with conspiracy to commit offenses against the United States. The CWA prohibits the "discharge of any pollutant" without a permit pursuant to the National Pollutant Discharge System. The knowing violation of this prohibition is a felony and CWA defines the discharge of a pollutant as "any addition of any pollutant to navigable waters from any point source," discharged into water. The term "navigable waters" is defined as "waters of the United States, including the territorial seas." The Appeals Court said, "Using either Justice Kennedy's or the plurality's test in Rapanos, the government presented sufficient evidence from which the jury could find, beyond a reasonable doubt, the required jurisdictional nexus. Agosto's guilt was established as to Count One.

    Access the complete opinion (click here).

U.S. v. Magnesium Corp. of America

Aug 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-4185. As its name advertises, U.S. Magnesium produces magnesium, though in doing so it also generates various waste byproducts. The lawsuit concerns five of those wastes. The government says that U.S. Magnesium's handling of the wastes must, but hasn't, complied with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA). For its part, U.S.Magnesium challenges the premise of the government's suit, arguing that the U.S. EPA exempted the five wastes from Subtitle C's strictures in a prior interpretation of its own regulation. And, U.S. Magnesium says, the Agency cannot change that interpretation now, at least not without first complying with the notice and comment procedures of the Administrative Procedure Act (APA).

 

    At summary judgment, the district court agreed with U.S. Magnesium and entered judgment in its favor. However, the Appeals Court said, "We must vacate that judgment. Even if we assume with U.S. Magnesium that a definitive regulatory interpretation prohibits an agency from later changing course and issuing a new interpretation without first undergoing notice and comment, that's simply not our case. The only prior EPA interpretation U.S.Magnesium can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations."

 

    The Appeals Court concluded, "For purposes of summary, we hold that EPA hasn't previously adopted a definitive interpretation of its 1991 rule. Even under the case law U.S. Magnesium asks us to follow, the Agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation. At least before us, U.S. Magnesium does not dispute that EPA has done so with this litigation. For this reason, we vacate the entry of summary judgment in U.S. Magnesium's favor and remand this matter to the district court. We do not prejudge what, if any, further proceedings may be appropriate in that court in light of and consistent with this opinion."

 

    Access the complete opinion (click here).

Northwest Environmental Defense Center. v. Brown

Aug 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies. NEDC argues that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).

 

    The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The Appeals Court said, "The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. We reach both questions and conclude that the discharges require NPDES permits."

 

    The Appeals Court explained in its concluding statements, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.

 

    ". . .we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here).