National Association of Home Builders v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5341. Appeal from the United States District Court for the District of Columbia. The Appeals Court explains that, the National Association of Home Builders (NAHB) and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and U.S. EPA (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute "traditional navigable water[s]" (TNW) so as to come within the Agencies' regulatory authority under the Clean Water Act (CWA). NAHB challenges the TNW Determination as both procedurally and substantively defective.

 

    The district court dismissed the complaint for lack of subject matter jurisdiction on the ground the CWA precludes a preenforcement challenge to a TNW Determination. The Appeals Court ruled, "We affirm the dismissal on the alternative jurisdictional ground that the appellants lack standing under Article III of the United States Constitution." The Appeals Court cites previous cases and the requirements for standing saying, "The 'irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." The Appeals Court said, "We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing -- either in its own right or on behalf of its members.

 

    Access the complete opinion (click here). [#Air, #CADC]

Citizens for Balanced Use v. McAllister (U.S. Forest Service)

Dec 1: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36051, 09-36058, & 09-36080. Appealed from the United States District Court for the District of Montana. A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). The Appeals Court ruled that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a Congressional decision on whether to designate the area as wilderness.

 

    The Appeals Court said that, "In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA)."

 

    The Appeals Court said, "In addressing § 1502.22, the Service noted that historical data tracking changes in the volume of recreational use within the study area could not be obtained, but concluded that such data were not necessary in any event. This conclusion was apparently based on the Service's faulty determination that it was not obligated to maintain the study area's 1977 wilderness character, including 1977 opportunities for solitude, for the benefit of current users. . . We therefore hold that the Service incorrectly determined that historical volume of use data are irrelevant for § 1502.22 purposes. . . On remand, the Service must acknowledge the relevance of the missing information and comply with § 1502.22(b)'s instructions for assessing reasonably foreseeable adverse impacts despite gaps in the relevant data."

 

    In conclusion, the Appeals Court said, "We hold that the travel plan improperly ignores the impact of increased volume of motorized and mechanized use on current users' ability to seek quiet and solitude in the study area. Because the Service entirely failed to consider this important aspect of its duty to maintain the study area's 1977 wilderness character, its decision is arbitrary and capricious. We affirm judgment in favor of MWA and against the Service and Citizens."

    Access the complete opinion (click here). [#Land, #CA9]

GET THE REST OF TODAY'S NEWS (click here)

Sierra Club v. Robert Van Antwerp (Army Corps)

Nov 29: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5284 consolidated with 10–5297, 10-5345. Appealed from the United States District Court for the District of Columbia.

 

    The Appeals Court explained that in 2007 the U.S. Army Corps of Engineers issued a permit authorizing the discharge of dredge and fill material into specified wetlands outside Tampa, Florida; it thereby enabled construction of a large mall. A number of firms are involved on the permittee's side in these appeals, but they are being referred to as CCTC, standing for Cypress Creek Town Center. Three environmental groups (collectively referred to as the Sierra Club) brought suit in district court to challenge issuance of the permit. The suit also names the heads of the Department of the Interior and the U.S. Fish and Wildlife Service as well, but are being considered collectively as the Corps. Plaintiffs invoked three statutes: the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the Endangered Species Act (ESA).

 

    The district court issued a decision finding that the Corps had not fully complied with its obligations under NEPA and the CWA, but rejected the plaintiffs' ESA claim. It granted summary judgment for the Sierra Club on the first two claims and for the Corps on the third. CCTC and the Corps appealed, and the Sierra Club crossappealed.

 

    In summary, the Appeals Court indicates, "We affirm in part, reverse in part, and remand, concluding that the Corps did satisfy the demands of the three relevant statutes, except for failing to respond, in its treatment of the NEPA and ESA requirements, to a material contention as to the project's impact on an endangered species, the eastern indigo snake." Clarifying further in its conclusion the Appeals Court said, "Our decision here of course substantially alters the substantive merits outcome that underlay the district court's injunction. Accordingly it will be suitable on remand for the court to entertain contentions relating to  modification of that injunction. In short, we reverse the district court entirely as to the CWA; reverse it as to NEPA except insofar as the court required further explanation by the Corps as to potential fragmentation of the indigo snake's habitat; and affirm its decision as to the ESA except in so far as it found the Corps's analysis of the indigo snake issue adequate."

 

    Regarding the indigo snake, the Appeals Court said, "In both ESA and NEPA contexts, we reject the Sierra Club's wood stork claim but find that the Corps failed to adequately address indications of an adverse effect on the indigo snake. . . we must remand for further explanation by the Corps of its determination that the project was 'not likely to adversely affect' the indigo snake. We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes. . ."

 

    Access the complete opinion (click here). [#Wildlife, #Water, #Land, #CADC]

GET THE REST OF TODAY'S NEWS (click here)

Buffalo Marine Services, Inc. v. USA

Nov 23: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-41108. Appealed from the United States District Court for the Eastern District of Texas. The appeal arises out of an oil spill on the Neches River. Appellants challenge the National Pollution Funds Center's (NPFC's) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the Agency's claim determination and the Appeals Court affirmed the decision.

 

    By way of background, Buffalo Marine's barge collided with the TORM MARY, rupturing the vessel's skin and adjacent fuel-oil tank. As a result of the rupture, approximately 27,000 gallons of heavy fuel oil spilled into the Neches River. Buffalo Marine, the Torm, and their insurers coordinated the clean-up effort, assessed at a cost of $10.1 million.

 

    The Appeals Court said in part, "Given the evidence on record and the concessions of the parties, we find no error in the NPFC's conclusion that the claimants failed to establish by a preponderance of evidence that the acts or omissions of Buffalo Marine's barge in approaching and colliding with the TORM MARY were other than those occurring in connection with a contractual relationship with the responsible party for the TORM MARY. Because the claimants failed to demonstrate by a

preponderance of evidence that the sole cause of the spill was a third-party act or omission that did not occur in connection with any contractual relationship with the responsible party, the Torm's third-party affirmative defense could not succeed. Thus, we also find no error in the NPFC's failure to decide whether the claimants could satisfy the additional requirements in § 2703(a)(3)(A) and (B)."

 

    In its conclusion, the Appeals Court said, "We conclude that the NPFC's interpretation of 33 U.S.C. § 2703 is entitled to deference and that appellants have not demonstrated that the NPFC's denial of the Torm's third-party affirmative defense claim should be overturned under the standard set forth in the APA."

 

    Access the complete opinion (click here). [#Remed, #CA5]

 

GET THE REST OF TODAY'S NEWS (click here)

Egan Marine Corporation v. Great American Insurance Co. of NY

Nov 23: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-1266 & 11-1346. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. Egan Marine Corporation (EMC) and Service Welding and Shipbuilding, LLC (SWS) are embroiled in a contract dispute with their insurance company, Great American Insurance Company of New York (GAIC). The dispute centers on the terms and scope of the plaintiffs' insurance policy, which indemnifies them against liability under several Federal environmental protection laws or those laws' state-law equivalents. EMC and SWS attempted to invoke their policy for up to $10 million in coverage following an explosion on one of their vessels that resulted in an oil spill in the Chicago Sanitary and Ship Canal. They intended to apply that amount against any legal liability and costs they incurred as a result of the incident. GAIC contends that, under the terms of the policy, the spill rendered available only $5 million in coverage.

 

    Additionally, the parties disagree about the amount GAIC owes EMC and SWS pursuant to a post-explosion agreement between them that EMC and SWS would provide cleanup and spill management services on their own behalf -- a function contractually designated to GAIC. Under this arrangement, EMC and SWS agreed to charge GAIC at "cost," but each party disputes the other's understanding of and method of calculating "cost." The Appeals Court affirmed the judgment of the district court.

 

    In this complicated and detailed case, the district court granted GAIC judgment on the pleadings with respect to the following: (1) it owed $5,000,000 per vessel, per incident and had fully honored the policy with respect to the EMC 423; (2) it owed no

coverage for either the Lisa E or the EMC 423 for in rem liability ["with respect to the thing itself" (i.e., the collateral)]. It denied any further judgment on the pleadings. The district court then granted EMC and SWS's motion for summary judgment on their breach of contract claim, finding that GAIC owed $5,000,000 in coverage for the Lisa E, was obligated to pay defense costs up to that amount, and had breached its contract by not doing so. It denied summary judgment on their claim that GAIC breached its duty of good faith and fair dealing.

 

    Access the complete opinion (click here). [#Remed, #CA7]

 

GET THE REST OF TODAY'S NEWS (click here)

Greater Yellowstone Coalition v. State of Wyoming

Nov 22: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-36100, 10-35043, 10-35052, 10-35053, and 10-35054. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Appeals Court provides extensive background and explains, this case involves one of the American West's most iconic wild animals in one of its most iconic landscapes. The grizzly bear (Ursus arctos horribilis) -- so named for the gray-tipped hairs that give it a 'grizzled' appearance -- is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones. During the nineteenth and early twentieth centuries, widespread hunting, trapping, poisoning, and habitat destruction associated with American expansion decimated the grizzly population in the West and relegated the bears to increasingly remote and rugged terrain. Since then, their survival has depended both on their own ability to adapt to their surroundings and on human ability to adapt to their presence. These seemingly irreconcilable tensions have come to a head before us in this appeal.

 

    The Yellowstone region of northwestern Wyoming, southern Montana, and northeastern Idaho is home to a grizzly population, two popular national parks -- Yellowstone and Grand Teton -- and a network of rural communities built on industries such as natural resource extraction, ranching, agriculture, and tourism. As such, it has served as a kind of living laboratory for the coexistence of people and grizzlies in close proximity. For much of the twentieth century, Yellowstone National Park's open-pit garbage dumps provided a reliable food source for the bears as well as a convenient bear-viewing opportunity for tourists. After the dumps were closed in the early 1970s due to concerns about encouraging the bears' attraction to human foods, however, grizzly mortality rates skyrocketed. By 1975 the grizzly population decline at Yellowstone and elsewhere prompted the U.S. Fish and Wildlife Service (the "Service") to list the grizzly as "threatened" in the lower 48 states under the Endangered Species Act (ESA).

 

    Since then, the Yellowstone grizzly population has rebounded, as scientists, conservationists and land managers have made unprecedented efforts to study the bear and to change those human attitudes and behaviors that unnecessarily threaten it. These efforts, spearheaded by the Service's Grizzly Bear Recovery Coordinator Dr. Christopher Servheen, culminated in the "Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area" (the Strategy), an impressive inter-agency, multi-state cooperative blueprint for long-term protection and management of a sustainable grizzly population. Interagency Conservation Strategy Team, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Mar. 2007). Shortly after the Strategy's finalization, the Service removed the Yellowstone grizzly from the threatened species list.

 

    The majority Appeals Court indicates, "The Service's delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the Service's delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the Service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections.

 

    As to the first issue, we affirm the district court's ruling that the Service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the Service's determination regarding the adequacy of existing regulatory mechanisms was reasonable."

 

    Following its analysis, the majority Appeals Court concludes, "We affirm the district court's grant of summary judgment in favor of Greater Yellowstone Coalition on the issue of whether the Service rationally supported its determination that potential whitebark pine declines did not threaten the Yellowstone grizzly bear. This is sufficient to affirm the district court's judgment vacating the Rule. However, we reverse the district court's grant of summary judgment in favor of Greater Yellowstone Coalition as to the Service's determination that existing regulatory mechanisms are adequate to protect a recovered Yellowstone grizzly population, and we direct the district court to enter summary judgment in favor of the governmental Appellants on that issue. We remand to the district court for further proceedings consistent with this Opinion. Affirmed in part; reversed and remanded in part.

    In a partial dissent, one of the Justices said, "I agree with the majority that the U.S. Fish and Wildlife Service (the Service) did not, in its delisting rule, articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear. Unlike the majority, I would hold that the agency also erred in concluding the Yellowstone grizzly is not threatened by 'the inadequacy of regulatory mechanisms.' Therefore, I would affirm the district court's decision in its entirety."

    In a release, the Natural Resources Defense County (NRDC) emphasized that the Court of Appeals panel "unanimously agreed that one of the grizzly's key food sources, the whitebark pine, has become so ravaged by climate change that the bears' future remains undeniably threatened." Louisa Willcox, senior wildlife advocate for NRDC said, "Grizzlies are still fighting for their survival in Yellowstone. Grizzly bears have made great progress in the Greater Yellowstone Ecosystem, but they are still very vulnerable, and we must maintain the protections that have brought the bears back from the brink of extinction. Since one of their key food sources is disappearing in Yellowstone, we must develop a long-term plan to help the bear adapt to the results of climate change on their habitat."

 

    NRDC explains that, "Numerous studies have shown a clear correlation between the abundance of whitebark pine cone crops and human-bear conflicts. In years with large cone crops, the bears forage at higher elevation, far from high densities of people. When cones are scarce, the bears move closer to places where more people are. While the bears are omnivores, the pine nuts offer a high calorie food source at a time when little else is available of similar nutritional value. Many researchers have expressed concern over the impact this will have on the future of the grizzly bear population, and the animals' movements in search of new food sources, in the Greater Yellowstone Ecosystem.  Recent NRDC/Forest Service research has shown that more than 80% of the whitebark pine forests in the Greater Yellowstone Ecosystem are now dead or dying due to a mountain pine beetle infestation brought on by warming temperatures."

    Access the complete opinion and partial dissent (click here). Access the Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (click here). Access a release from NRDC with links to related information resources (click here). [#Wildlife, #CA9]

GET THE REST OF TODAY'S NEWS (click here)

Rock Creek Alliance v. US Fish & Wildlife Service

Nov 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35596. Appeal from the United States District Court for the District of Montana. The Appeals Court indicates that Plaintiff-Appellant Rock Creek Alliance appealed the district court's grant of summary judgment in favor of Defendant-Appellee the U.S. Fish and Wildlife Service and Intervenor-Defendant-Appellee Revett Silver Company in an action brought pursuant to Section 7 of the Endangered Species Act, which requires Federal agencies to consult with the Fish and Wildlife Service before undertaking any action "authorized, funded, or carried out" by the agency that might "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat" used by any endangered or threatened species. The Appeals Court affirmed what it called the "district court's well-reasoned opinion."

 

    Revett Silver Company proposed to build and operate a copper and silver mine in northwest Montana, part of which will be on land managed by the U.S. Forest Service. Because the mine might impact two species listed as threatened under the Endangered Species Act -- the bull trout and the grizzly bear -- the Forest Service was required to engage in formal consultations with the Fish and Wildlife Service before approving the mine. As a part of those consultations, the Fish and Wildlife Service issued two biological opinions that concluded that the mine would result in "no adverse modification" to critical bull trout habitat and would result in "no jeopardy" to the local grizzly bear population.

 

    In the district court, Rock Creek Alliance challenged the biological opinions, arguing that the Fish and Wildlife Service's conclusions were arbitrary, capricious, and violated the Endangered Species Act. The district court disagreed, and granted summary judgment in favor of the Fish and Wildlife Service and Revett Silver Company. Rock Creek Alliance then appealed. After specifically addressing each of the Alliance's challenges, the Appeals Court ruled, ". . .the Fish and Wildlife Service's determination that the mine would entail 'no adverse modification' to bull trout critical habitat and would result in 'no jeopardy' to grizzly bears was not arbitrary, capricious, or in violation of the Endangered Species Act. Affirmed."

 

    Access the complete opinion (click here). [#Wildlife, #CA9]

GET THE REST OF TODAY'S NEWS (click here)