Northern California River Watch v. Wilcox

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15780, appealed from United States District Court for the Northern District of California. Northern California River Watch (River Watch) appeals the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively Defendants). River Watch contends that Defendants violated the Endangered Species Act (ESA). Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to "take" a listed plant on areas under federal jurisdiction.

 

    The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were "areas under Federal jurisdiction." The Appeals Court consider the meaning of the term "areas under Federal jurisdiction" as used in ESA § 9. River Watch argued that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as "waters of the United States" by the Army Corps of Engineers.

 

    The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that the Appeals Court must apply the deference principles set forth in Chevron, U.S.A.,

Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an "area[ ] under Federal jurisdiction."

 

    The Appeals Court indicates that, "Although we agree that the term 'areas under Federal jurisdiction' is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (FWS), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that 'areas under Federal jurisdiction' does not include the privately-owned land at issue here. We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants."

 

    The Appeals Court said additionally, "We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret 'areas under Federal jurisdiction' as not including all of the 'waters of the United States' as defined by the CWA and its regulations. Although our ruling will constitute 'binding law,' we recognize that under Brand X, we are not the 'authoritative interpreter' of 'areas under Federal jurisdiction.' See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'

 

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Precon Development Corporation v. US Army Corps

Jan 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-2239. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. As explained by the Appeals Court, the appeal arises out of a determination made by the Army Corps of Engineers (the Corps) that it has jurisdiction, under the Clean Water Act (CWA), over 4.8 acres of wetlands located on Precon Development Corporation's (Precon's) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon's application for a CWA permit to impact the wetlands through development.

 

    Precon appealed the determinations to the United States District Court for the Eastern District of Virginia under the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the parties crossmoved for summary judgment. The district court granted

summary judgment to the Corps on September 4, 2009, upholding both its jurisdictional determination and its permit denial.

 

    On appeal, Precon challenged only the Corps' jurisdictional determination. The Appeals Court said, "Because we find the Corps' administrative record inadequate to support its conclusion that it had jurisdiction over Precon's wetlands, we vacate the district court's grant of summary judgment and remand to the district court with instructions to remand to the Corps for reconsideration of its jurisdiction over the wetlands in question."

 

    The Appeals Court explained further, ". . .we reverse the district court's holding that the Corps' administrative record adequately demonstrated that a significant nexus existed here, and remand to the Corps for reconsideration of its significant nexus determination. Cf. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 57 (1983) (remanding for further agency consideration when the agency's view of the facts was accepted but the Court 'appreciate[d] the limitations of th[e] record in supporting the agency's decision'); Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir. 1986) (remanding for further consideration where it was 'impossible to conclude that there [was] substantial evidence to support the Secretary's determination'). In doing so, we do not intend to place an unreasonable burden on the Corps. We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands' impacts on downstream water quality."

 

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The Wilderness Society v. U.S. Forest Service

Jan 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. In this high interest case with many industry, agriculture, conservation and tribe intervenors, the Appeals Court indicated that it was revisiting its so-called "federal defendant" rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (NEPA. The Appeals Court said, "Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions."

 

    The Appeals Court indicates that to determine whether a putative intervenor demonstrates the "significantly protectable" interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether "the interest is protectable under some law," and whether "there is a relationship between the legally protected interest and the claims at issue." [citing: Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)].

 

    The case addresses squarely the issue of "intervention of right in NEPA cases." Federal Rule of Civil Procedure 24(a)(2) requires a court, upon timely motion, to permit intervention of right by anyone who "claims an interest relating to the property or

transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."

 

    The Appeals Court explains, "When analyzing a motion to intervene of right under Rule 24(a)(2), we apply a four-part test: (1) the motion must be timely; (2) the applicant must claim a 'significantly protectable' interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately

represented by the parties to the action."

 

    The Appeals Court explains further, "Our 'federal defendant' rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions." [Citing: Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir. 1998); Forest Conservation Council, 66 F.3d at 1499 n.11]. 

 

    Finally, the Appeals Court notes that, ". . .our application of the 'federal defendant' rule is out of step with all but one of our sister circuits that have addressed whether private parties may intervene of right on the merits of NEPA claims. [the various cases are cited].

 

    The Appeals Court concludes, "We now abandon the 'federal defendant' rule. When considering motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether putative intervenors demonstrate the 'significantly protectable' interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the 'interest is protectable under some law' and whether 'there is a relationship between the legally protected interest and the claims at issue.' [citing: Sierra Club, 995 F.2d at 1484]. A putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if 'it will suffer a practical impairment of its interests as a result of the pending litigation.' [Citing: California ex rel. Lockyer, 450 F.3d at 441]."

 

    The Appeals Court rules, "Since the district court applied the 'federal defendant' rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors' motion to intervene."

 

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U.S. Magnesium, LLC v. EPA

Jan 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1269. On Petition for Review of a Final Action of U.S. EPA. The case concerns the NPL listing of a magnesium plant located in Tooele County, Utah, approximately 40 miles west of Salt Lake City and adjacent to the Great Salt Lake. The plant, which is now owned by petitioner US Magnesium LLC (USM), has produced molten magnesium since 1972, creating chlorine gas and hydrochloric acid as by-products. A network of ditches carries waste from the plant to an active waste pool. Just beyond that pool is an inactive waste pool, which was previously a recipient of waste.

 

    The EPA completed a Hazard Ranking System (HRS) evaluation for the US Magnesium site in 2008. The HRS requires the agency to analyze four "pathways": ground water migration, surface water migration, soil exposure, and air migration, and to plug the resulting individual pathway scores into a formula to obtain the site score. EPA calculated scores for two out of these four possible "pathways" -- air migration and soil exposure. Based on these, EPA computed a total HRS score of 59.18 for the site and subsequently added the site to the NPL.

 

    USM challenges the NPL listing as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." It claims that the EPA made four errors in calculating an HRS score and that if these errors were corrected, the USM site's

HRS score would fall below the 28.5 threshold for listing on the NPL.

 

    The Appeals Court indicates, "USM would have to prevail on its first alleged error and some combination of the other three alleged errors in order for the NPL listing to be arbitrary or capricious. (If we were to remand based on all the other three alleged errors, the site would still receive a total score of at least 50—21.5 more than the minimum score for inclusion on the NPL.). . . We are not persuaded that the EPA in fact erred in the first decision element claimed by USM to have been erroneous—the scoring of multiple "sources" for the air pathway."

 

    Finally, the Appeals Court concluded, "Because the EPA followed the HRS precisely in scoring the air migration pathway and affirmation of the EPA on that first issue results in a score above the cut off for inclusion on the NPL, listing of the USM site on the NPL was not arbitrary or capricious. The petition for review is therefore denied."

 

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Dunn-McCampbell Royalty International v. National Park Service

Jan 7: In the U.S. Court of Appeals, Fifth Circuit, Case No. 09-40187, Appeal from the United States District Court for the Southern District of Texas. The Appeals Court explains the depth of entanglement of the case saying, before 1963, there was no Padre Island National Park off the coast of the State of Texas. It took a lot of maneuvering between the State of Texas and the United States to create the national park out of these coastal island lands, much belonging to the State of Texas, some belonging to private parties. The Texas Consent Statute, the deeds of conveyance, the federal Enabling Act of 1962, and the Oil and Gas Management Plan of 2001, as well as the Energy Policy Act of 2005, are all involved in this appeal.

 

    Now, almost fifty years later, the case presents a conflict between the National Park Service (the Service) and owners of certain mineral estates in the Padre Island National Seashore (the Seashore), with respect to those mineral owners' rights of ingress and egress over the Seashore's surface; such rights, if recognized, would allow the owners to exploit the subsurface minerals contained on the Island.

 

    In 2001, the Service attempted to strike this balance through its Oil and Gas Management Plan (the Plan). In this Federal action, three related companies (collectively, Dunn-McCampbell) sought declaratory relief under the Administrative Procedure Act (APA), arguing that the Plan exceeded the Service's regulatory power over the Seashore because it denies Dunn-McCampbell its rights of ingress and egress as provided by the special provisions of state and Federal law that established the Seashore. The district court agreed and entered a declaratory judgment in Dunn-McCampbell's favor.

 

    The Service appealed. The Appeal Court said, "Although we assume that the Service's normally broad regulatory authority over park lands is limited by the agreements between Texas and the Service that were made when the Seashore was established, we hold that these limitations do not provide the relief Dunn-McCampbell seeks today. We reverse, vacate, and remand." The Appeals Court said further, "We thus conclude that because Dunn-McCampbell does not fall under any of the special protections provided in the Enabling Act, the trial court erred in granting Dunn-McCampbell summary judgment, and accordingly we thus reverse and vacate the district court's declaratory judgment and remand for entry of judgment in favor of the Service."

 

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USA v. Canal Barge Company, Inc.

Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 09-5388, Appeal from the United States District Court for the Western District of Kentucky at Owensboro. As explained by the Appeals Court, the case presents a question of venue, specifically, the appropriate district in which to prosecute a charge of willful failure to "immediately notify" the Coast Guard of a "hazardous condition" aboard a vessel [citing 33 U.S.C. § 1232(b)(1); 33 C.F.R. § 160.215]. The crime is a continuing offense rather than a point-in-time offense, and therefore the location of the crime continued into the Western District of Kentucky as the vessel in question proceeded from the Mississippi River to the Ohio. In a split opinion, the majority Appeals Court ruled that, "The district court in this case therefore erred in acquitting defendants on the ground that there was no criminal venue in the Western District of Kentucky."

 

    The case involves a barge carrying 400,000 gallons of benzene down the Mississippi River that sprang a leak near St. Louis, Missouri. The leak was temporarily stopped with a make shift patch for several days and then began to leak again. The

Coast Guard was not notified of the leak until several days after the original leak.

 

    The majority indicated that, "Defendants urge that they are entitled to a new trial because the weight of the evidence does not support a finding of a hazardous condition, and because the evidence does not establish that the defendants' failure to notify the Coast Guard was knowing and willful. The defendants argue that the leak was not a 'hazardous condition' because 'the product did not get into the water.' This was disputed at trial. But even if none of the benzene had actually spilled into the river, that was not the only risk presented by the leaking barge. Because benzene is highly explosive, the risk in this case was not just that the liquid would spill overboard and contaminate the river, but that the leaking fuel would ignite and blow up the barge. The district court acted well within its discretion in concluding that the evidence did not preponderate heavily against the jury's finding that a hazardous condition existed aboard the barge on June 16. Likewise. . . the district court did not abuse its discretion in concluding that the evidence did not preponderate heavily against the jury's finding that the defendants' failure to notify the Coast Guard was knowing and willful." The majority reverse the district court's judgment of acquittal for improper venue, and remand for further proceedings consistent with this opinion.

 

    The dissenting justice concurred in part and dissented in part and said, "The majority opinion correctly concludes that there was sufficient evidence to convict Defendants. The evidence in favor of conviction was more than sufficient to withstand the limited scrutiny which we give such matters on appeal. I therefore concur in the majority opinion's affirmance of the district court's denial of Defendants' motions for judgment of acquittal and for a new trial. However, I must vigorously dissent from the majority opinion's conclusion that the failure to 'immediately' notify the Coast Guard is a continuing offense.

 

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Friends of the Earth, Inc. v. Gaston Copper

Jan 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1714. Appeal from the United States District Court for the District of South Carolina, at Columbia. In the appeal, the Appeals Court considered whether Friends of the Earth, Inc. (FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN), (collectively, the plaintiffs), maintained standing to prosecute a citizen suit asserting violations of the Clean Water Act against Gaston Copper Recycling Corporation (Gaston). The Appeals Court concluded that the plaintiffs established standing to sue through FOE and CLEAN member Guy Jones.

 

    The Appeals Court also considered Gaston's argument challenging the district court's imposition of penalties. Gaston argued that the district court erred: (1) in imposing penalties against Gaston for violations not contained in the plaintiffs'

pre-suit "notice letter" required by 33 U.S.C. § 1365(b); and (2) in imposing penalties against Gaston for violations allegedly "wholly past," contrary to the requirement set forth in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987), that citizen suits brought under the Clean Water Act may only assert ongoing violations.

 

    The Appeals Court held that, "the district court erred in imposing certain penalties against Gaston. We affirm in part and reverse in part the district court's judgment, and remand the case." In its conclusion the Appeals Court said, "In conclusion, we hold that the plaintiffs maintained standing throughout their suit in the district court; that based on the legal insufficiency of portions of the notice letter, the district court erred in finding violations and imposing penalties for all but the three violations for pH and copper . . . and that the district court erred in assessing penalties for 54 days of violations that were 'wholly past' when the plaintiffs filed their complaint. Accordingly, we affirm the part of the district court's judgment relating to the Phase II violation for pH occurring on October 15, 1993, and to the Phase II violations for copper occurring on October 5, 1993 and March 22, 1994, and the accompanying penalties imposed for those three violations; we reverse the balance of the district court's findings of violations and the court's imposition of penalties for those violations; and we remand the case for further proceedings consistent with our opinion."

 

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