The Wilderness Society v. USFS

Sep 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. The Appeals Court issued an order indicating, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc."

 

    According to a supplemental brief filed by the appellant "Recreation Groups," the panel has asked the parties to file supplemental briefs "on the following question: Whether this case should be heard en banc to decide if this court should abandon the 'federal defendant rule,' which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." The Recreation Groups stated that the "question framed by the panel should be heard en banc. The Court should abandon the Federal Defendant Rule.

 

    The Recreation Groups explain that the panel's question necessitates two distinct inquiries. First is the question of whether en banc review is warranted. This question typically arises in the context of a petition for rehearing filed by one on the losing end of the panel's decision. The less common context here, through a panel call prior to issuing a decision, implies the importance of the question presented and the need for en banc determination.

 

    The Groups indicated that, "It is apparent that the circuit courts are split on the applicability of the Federal Defendant Rule." They cite decisions by the 10th, 5th and 1st circuits. The Groups conclude in their brief, "The Court should convene en banc to consider the ongoing validity of its unique Federal Defendant Rule. Should the Court consider the question en banc the Recreation Groups will gladly submit additional briefing or argument, which, in addition to the information already submitted, will demonstrate that the Federal Defendant Rule disserves all nonfederal interests, federal defendants and the judiciary in resolving important federal lands management questions."

 

    The Western Environmental Law Center disagreed and said, "If this Court wishes to review the federal defendant rule, it should do so in a case that presents the inconsistencies and problems with the rule, rather than in a case such as this one, which is riddled with other procedural issues. Moreover, the district court's denial of intervention in this case should be affirmed regardless of the federal defendant rule, thus making review of the rule almost peripheral to the outcome of this case. In sum, this Court should deny en banc review of the federal defendant rule in this case."

 

    Access the Order (click here). Access the supplemental briefs (click here).

Kurt Meister v. U.S. Department of Agriculture

Sep 29: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-1712. The Appeals Court says that an agency is not entitled to deference simply because it is an agency. It is true that agencies are more specialized than courts are. But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it. And that means, among many other things, that the agency must apply -- rather than disregard -- the relevant statutory and regulatory criteria.

 

    Kurt Meister, a Michigan attorney appearing pro se [representing himself], argues that the United States Forest Service disregarded the relevant criteria here. Specifically, he claims that the Service failed to comply with several of its own regulations and one federal statute in developing its 2006 management plan for the Huron-Manistee National Forests in Northern Michigan. For the most part, we agree with him; and to that extent we reverse the district court's entry of judgment in the Service's favor and remand the case so that the Service may comply with those requirements forthwith.

 

    The case concerns the Service's management of recreational activities in the Huron-Manistee National Forests. The Forests occupy about 970,000 acres on each side of the northern one-third of Michigan's Lower Peninsula. In the east, the Huron National Forest ranges between 12 and 30 miles long from north to south, and stretches 60 miles wide from west to east, reaching the shores of Lake Huron. In the west, the Manistee National Forest is about 75 miles long and 40 miles wide, reaching Lake Michigan near Manistee.

    The Service issued a management plan for the Forests in 1986. In 2003, the Service published a notice of intent to revise the plan. The Service thereafter held public meetings and solicited public comments as to how to revise the plan. Meister commented on the Plan throughout its development. Those comments reveal fluency with the language of the relevant statutes and regulations; and they explained in considerable detail why Meister thought the Service was not meeting its obligations under the law. His principal comment was that, in developing the Plan, the Service had disregarded certain processes prescribed in its own regulations, so as to favor gun hunters and snowmobile users over other persons—for example, hikers and birdwatchers -- who use the Forests for quiet, solitary activities. He also commented that the Service should close more areas of the Forests to motorized activity than the Service seemed likely to close in the Plan. The Appeals Court said, "It appears that the Service disagreed with all of Meister's comments." Following an administrative appeals, Meister filed suit in district court and the district court granted the Service's motion, holding in general terms that the Service had complied with the applicable regulations. The district court denied Meister's motion.

 

    The Appeals Court summarize its holdings saying, "First, the Service's estimates of snowmobile and cross-country visitors to the Forests are arbitrary. . . Second, the Service has not complied with the requirement that it coordinate its recreational planning with that of the State of Michigan with the aim (to the extent feasible) of "reducing duplication in meeting recreation demands" with respect to gun hunting and snowmobiling. . . Third, the Service's reasons for keeping pre-designation and club trails open to snowmobile use are arbitrary. . . Fourth, the Service violated the National Environmental Policy Act when it failed to consider whether to close Primitive and Semiprimitive Nonmotorized areas to gun hunting and snowmobile use, as Meister has proposed."

 

    The Appeals Court ruled, "Each of these failures was material to the Plan's development. To that extent, the Plan's approval was arbitrary or without observance of procedures required by law. Given that holding, we have authority to 'set aside' the Plan. . . We choose not to exercise that authority today, but instead grant the Service a reasonable time to adopt a plan that complies with the law. Ninety days from the date of our mandate seems to us ample time for that compliance. The district court may extend that period upon some showing that the court finds compelling; but in any event the Service shall comply forthwith. The district court's judgment is reversed with respect to the claims summarized . . . Meister is entitled to judgment on those claims to the extent described . . . and the claims are remanded to the district court for further proceedings consistent with this opinion. The district court's judgment is otherwise affirmed."

 

    Access the complete opinion (click here).

Oklahoma v. Tyson Foods, Inc.

Sep 21: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-5134. The Cherokee Nation (the Nation) appeals the district court's denial of its motion to intervene in a dispute between the State of Oklahoma (the State) and Defendants-Appellees (collectively, Tyson). The State had sued Tyson because of Tyson's disposal of poultry waste in the Illinois River Watershed (IRW). The IRW, in which both the State and the Nation claim interests, covers approximately one million acres straddling the Oklahoma-Arkansas border. Within it are hundreds of large-scale poultry farms. Tyson operates some of these farms and contracts with other farmers to raise poultry until maturity, using methods established by Tyson; Tyson collects the poultry at maturity for processing and marketing. These poultry-growing operations generate hundreds of thousands of tons of poultry waste each year.

 

    Raising a number of legal theories, the State sought monetary relief for past and future damages and an injunction against alleged pollution. More than three years into the litigation, Tyson moved to dismiss the monetary claims on the ground that the Nation was a required party that had not been joined. The State argued that the Nation was not a required party but also negotiated an agreement in which the Nation purportedly assigned the State its interests in the litigation. The district court ruled that the agreement was invalid and granted Tyson's motion, restricting the previously scheduled trial to the State's claims for injunctive and other equitable relief.

 

    Nineteen days before trial the Nation moved to intervene so that it could proceed on three claims against Tyson for injunctive and monetary relief. The district court denied the motion as untimely. Although the Nation argued that it had moved promptly after learning that the State could not adequately represent the Nation's interests in the litigation, the district court ruled that the Nation had delayed too long, that Tyson would be severely prejudiced by the lengthy trial delay that would be necessary if the Nation were permitted to intervene, and that the Nation would not be prejudiced by a denial of intervention.

 

    In a split decision, the majority affirmed the district court denial and said it "did not abuse its discretion in denying the motion to intervene. In particular, the district court could properly find that the Nation had unduly delayed seeking to intervene because from the outset of the litigation it had no reason to believe that the State would represent its interests in monetary relief."

 

    Access the complete opinion (click here).

Celanese Corp. v. Eby Construction Co.

Sep 20: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-20487. At issue is whether Eby is liable as an "arranger" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Texas Solid Waste Disposal Act (SWDA). The Appeals Court ruled that Eby is not an arranger, and affirmed the district court's final judgment, denying recovery to Celanese. Additionally the Appeals Court affirmed the district court's denial of Celanese's motion to alter that judgment pursuant to Federal Rule of Civil Procedure 59(e).

 

    In explaining its decision, the Appeals Court says, "The district court found, and Celanese does not dispute, that Eby did not intentionally damage the pipeline. In fact, Eby did not even know that it had struck a pipeline; it only knew that it had struck something with a backhoe. Still, Celanese insists that Eby intentionally took steps to dispose of methanol by disregarding its obligations to investigate the incident and backfilling the excavated area where the incident had occurred. In other words, Celanese argues that Eby's conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol. Burlington [Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1874 (2009)], however, precludes liability under these circumstances.

 

    "In Burlington, the Court declined to impose arranger liability for a defendant with more culpable mens rea. The defendant had actually arranged to ship hazardous chemicals under conditions that it knew would result in the spilling of a portion of the hazardous substance by the purchaser or common carrier. See Burlington, 129 S. Ct. at 1880. Given that there was no arranger liability under those circumstances, we fail to see how we can impose such liability here when Eby did not even know that it had struck the Celanese pipeline. Therefore, we hold that Eby is not liable as an arranger under CERCLA."

 

    Access the complete opinion (click here).

Sackett v. U.S. EPA

Sep 20: In the U.S. Court of Appeals, Ninth Circuit, Case No.08-35854. As the Appeals Court explains, the case must determine whether Federal courts have subject-matter jurisdiction to conduct review of administrative compliance orders issued by the U.S. EPA under the Clean Water Act (CWA)  before EPA has filed a lawsuit in Federal court to enforce the compliance order. The Appeals Court rules, "We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process."

 

    In brief summary the Sacketts argued that a compliance order issued by EPA regarding a wetlands violation was: (1) arbitrary and capricious under the Administrative Procedure Act; (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an "any information available" standard that is unconstitutionally vague. The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. It concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in Federal court. The Sacketts filed a Federal Rule of Civil Procedure 59(e) motion for clarification and reconsideration that was also denied.

 

    In making its ruling, the Appeals Court indicates that, ". . .we do not work from a blank slate. Every circuit that has confronted this issue has held that the "CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court." The Appeals Court cites cases from the 10th, 6th, 4th, and 7th Circuits and many Districts and says, "The reasoning of these courts is persuasive to us, as well as the broad uniformity of consensus on this issue."

 

    The Appeals Court summarizes, "In conclusion, we hold that it is 'fairly discernable' from the language and structure of the Clean Water Act that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by the EPA pursuant to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to require that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order. Thus we do not see any sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA. Under these circumstances, preclusion of pre-enforcement judicial review does not violate the Sacketts' due process rights. The district

court properly dismissed this case for lack of subject-matter jurisdiction."

 

    Access the complete opinion (click here).

Miccosukee Tribe of Indians v. U.S. Army Corps of Eng'rs.

Sep 15: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14194, 09-14539 & 09-11891. The Appeals Court indicates that the Miccosukee Tribe of Indians of Florida (the Tribe) filed two lawsuits challenging the Federal government's plans to replace a mile of the ground-level Tamiami Trail (U.S. Highway 41) with a bridge, to increase the flow of water into Everglades National Park. The district courts dismissed the Tribe's claims for lack of subject matter jurisdiction, and the Appeals Court have consolidated the Tribe's appeals of those decisions.

 

    The district courts concluded that language Congress inserted in a spending bill partially repealed the environmental laws that the Tribe was invoking. The Tribe challenges that interpretation, and asserts the rulings violate the Constitution on several counts. However, Appeals Court concluded that "the act of Congress deprived the federal courts of subject matter jurisdiction over the Tribe's claims," and affirmed the judgments of the district courts.

 

    The Appeals Court provides background indicating, "Although the Trail [Tamiami Trail] remains an impressive engineering achievement, it poses a substantial environmental challenge. It acts as a dam to restrict water from flowing south into Everglades National Park and greatly reduces the flow into the Shark River Slough, the main water corridor of the Everglades. Moreover, to preserve the roadbed from erosion, engineers found that they had to lower water levels of the surrounding swamp. The restricted water flow was subsequently blamed for vast losses of wading birds, fish, and native plants.

 

    In 2000, the President signed the Water Resources Development Act, Pub. L. No. 106-541, § 601, 114 Stat. 2572, 2680 (WRDA), outlining the thirty-year Comprehensive Everglades Restoration Plan (CERP) that updated the original Central and Southern Florida plan for the Everglades. One element of CERP called for improvement of water flow through the Trail. On September 30, 2008, Congress passed a continuing appropriations act, Pub. L. No. 110-329, 122 Stat. 3574. Section 153 of the act spoke to the immediate building of the bridge saying, "SEC. 153. Amounts provided by section 101 for implementation of the Modified Water Deliveries to Everglades National Park shall be made available to the Army Corps of Engineers, which shall immediately carry out Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) as substantially described in the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008 . . . "

 

    Access the complete opinion (click here).

Association of American Railroads v. South Coast Air Quality Mgmt.

Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55804. The Appeals Court explains that an array of Federal, state, and local laws governs the operation of railroads, including laws that regulate the effect of the railroad industry on the environment. In this case, a local governmental agency enacted rules aimed at limiting the air pollution created by idling trains. Several entities within the railroad industry filed suit. After a bench trial, the district court held that Federal law preempts the local rules.

 

    The Railroads contend that the Interstate Commerce Commission Termination Act of 1995 (ICCTA), Pub. L. No. 104-88, 109 Stat. 803, a Federal act that substantially deregulated the railroad industry, preempts the South Coast Air Quality Management District rules. On review, the Appeals Court cited Davis v. Yageo Corp., 481 F.3d 661, 673 (9th Cir. 2007); J & G Sales Ltd. v. Truscott, 473 F.3d 1043, 1047 (9th Cir. 2007), and affirmed the decision of the district court.

 

    The Appeals Court ruled in part, "Because the District's rules have the force and effect of state law, ICCTA preempts those rules unless they are rules of general applicability that do not unreasonably burden railroad activity. The District's rules plainly cannot meet that test. The rules apply exclusively and directly to railroad activity, requiring the railroads to reduce emissions and to provide, under threat of penalties, specific reports on its emissions and inventory. Because ICCTA 'preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation,' N.Y. Susquehanna, 500 F.3d at 252 (internal quotation marks omitted), ICCTA preempts the District's rules here."

 

    Access the complete opinion (click here).