U.S. v. Oceanpro Industries, Ltd.

Mar 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 10-5239, 10-5284 and 10-5285. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Oceanpro Industries, Ltd., doing business as "Profish, Ltd." (Oceanpro), a seafood wholesaler in the District of Columbia, and two Oceanpro employees, Timothy Lydon (officer and fish buyer) and Benjamin Clough, III (fish buyer), were convicted for purchasing untagged and oversized striped bass, in violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A) (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law). Oceanpro and Clough were also convicted for giving a false statement to Federal law enforcement officers during the course of the investigation of the crimes, in violation of 18 U.S.C. § 1001. In addition to imposing fines and prison sentences, the district court ordered the three defendants, jointly and severally, to pay Maryland and Virginia $300,000 in restitution, to be divided equally between the States.

 

    On appeal, Oceanpro and Clough challenge the District of Maryland's venue for the false statement offense because the false statement was made at the offices of Oceanpro in the District of Columbia, not in Maryland. In addition, all of the defendants contend that the order of restitution to the States was improper because the States did not have a sufficient interest in the illegally caught fish so as to make them "victims," as is required for receiving the benefit of a restitution order.

 

    The Appeals Court ruled, "We reject both arguments, concluding that venue for the false statement charge was proper in the District of Maryland and that Maryland and Virginia's interest in striped bass was sufficient to make the States 'victims' and therefore to justify an award to them of restitution. Accordingly, we affirm." In its conclusion, the Appeals Court added, "To qualify as victims, Maryland and Virginia need not even have been 'owners' of the striped bass, although they were after the fish were illegally caught; they merely had to have interests that were 'harmed' as a result of the defendants' criminal conduct. Because we have concluded that their interests were indeed harmed, the States were victims and therefore properly awarded restitution."

 

    Access the complete opinion (click here). [#Wildlife, #CA4]

 

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Scarborough Citizens v. US Fish and Wildlife Service

Mar 22: In the U.S. Court of Appeals, First Circuit, Case No. 11-1597. Appealed from the District Court of Maine, Portland. The litigation concerns a segment of the Eastern Trail in Scarborough, Maine. The Eastern Trail is a public recreational trail which is part of a network of trails running along the Eastern Seaboard. The portion of the Trail at issue in this case is over three miles long, runs through a 32-acre tract of land owned by the state of Maine, and is used in part for recreation and to access the state-managed Scarborough Marsh Wildlife Management Area.

 

    An association and several individuals who regularly use the Trail for recreating and hunting, and who support wildlife conservation (Scarborough Citizens) brought suit against the United States Fish and Wildlife Service (USFWS) and its Northeast

Regional Director, as well as the Governor of Maine and the Commissioners of the Maine Department of Inland Fisheries and Wildlife (IFW) and Department of Environmental Protection (DEP). Scarborough Citizens alleged that easements conveyed by the State on the parcel of land violate the law.

 

    In its appeal, Scarborough Citizens argues that the State agency has repeatedly violated the Wildlife Restoration Act and federal regulations in varying respects by conveying nearly ten easements on various portions of the Eastern Trail between 1968 and 2005. The Appeals Court indicates, "The gist of the claim is that these conveyances resulted in uses of the land, initially purchased with funds from the Wildlife Restoration Act, contrary to the purposes for which it was initially acquired."

 

    The Appeals Court rules, ". . .the federal government funded the state's purchase of the property, but it neither funded nor approved the later grant of any of the easements. USFWS may have the power to withhold future funding from the state if the easement violated the regulations and the state does not remedy the violation, 50 C.F.R. § 80.14 (2010), but (to repeat) this power is discretionary. As we conclude that there is no reviewable federal action, neither the federal nor the state officials can be held liable for violating NEPA, as a major federal action is a prerequisite for either."

 

    Regarding violations of State law, the Appeals Court rules, "As we agree with the district court's dismissal of the federal claims in this suit, there is no abuse of discretion in its decision to decline to exercise supplemental jurisdiction over the remaining state law claims."

 

    Access the complete opinion (click here). [#Land, #CA1]

 

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BEPCO, L.P. v. Santa Fe Minerals, Inc.

Mar 15: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30986. Appeal from the United States District Court for the Western District of Louisiana. As explained by the Appeals Court, in 2008, BEPCO, L.P. sued Santa Fe Minerals, Inc. in Louisiana state court. In its petition, BEPCO set forth claims for indemnity and contribution in an attempt to recover money it had paid out in a settlement. Santa Fe and a group of subsequently named defendants then filed cross-claims and third-party claims against a multitude of insurers and underwriters, including Lloyd's London.

 

    Among the Lloyd's London insurers named by the defendants was the Insurance Corporation of Ireland, which is now known as ICAROM. In January 2011, ICAROM exercised its right to removal under the Foreign Sovereign Immunities Act. After BEPCO objected to removal, the district court remanded the case to state court. ICAROM now appeals the district court's remand order. The Appeals Court said, "Because we lack jurisdiction to review this order, we dismiss ICAROM's appeal."

 

    In April 2005, the landowners filed suit against BEPCO and Santa Fe Minerals, and alleged that contaminated water produced from oil wells on the "Tebow property" was disposed of in unlined earthen pits on their property. According to the landowners, some of the contaminated water entered a drinking water aquifer. As relief for their injuries, the landowners sought $320 million."

 

    On appeal, ICAROM argues that the district court exceeded its statutory authority by ordering a remand on the basis of an objection that was not raised within the 30-day limit prescribed by 28 U.S.C. § 1447(c). The Appeals Court indicates, ". . .the threshold question that controls us is whether we have jurisdiction to consider this petition. 'In re Adm'rs of Tulane Educ. Fund, 954 F.2d 266, 268 (5th Cir. 1992) (quoting In re Allied-Signal, Inc., 919 F.2d 277, 279 (5th Cir. 1990)). Generally, as stated above, [a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]" 28 U.S.C. § 1447(d). "This proscription includes petitions for mandamus.' In re Adm'rs of Tulane Educ. Fund, 954 F.2d at 268 (citing Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977))."

 

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

 

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Otay Land Co. v. United Enterprises Ltd.

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-55550. Appeal from the United States District Court for the Southern District of California. The Appeals Court indicates that, "Given the complexities of litigation and the escalating magnitude of attorneys' fees, it is no surprise that appellate review of attorneys' fees and costs has focused overwhelmingly on fees. Nonetheless, costs also can add up to a considerable amount and because fees are not always available by contract, statute or otherwise, an award of costs can take on heightened importance."

 

    The Appeals Court said, "Under 28 U.S.C. § 1919, when a suit is dismissed for lack of jurisdiction, the court "may order the payment of just costs." This case requires us to parse the term "just" and consider what constitutes "just costs." Here, the district court awarded costs to defendants on the ground that they were necessarily incurred in defending the action. Because the district court implied a presumption of award of costs that is absent in the permissive statute, and because it equated incurred costs with "just costs," we conclude that the court abused its discretion under § 1919."

 

    By way of background, the Appeals Court explains that Otay's Third Amended Complaint alleged that United Enterprises, comprised of former owners and operators of a shooting range in Chula Vista, California, was responsible under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act and § 7002 of the Resource Conservation and Recovery Act for removing lead and other pollutants from the real property in question, now owned by Otay. The complaint also included a claim under the California Hazardous Substances Account Act, as well as other state causes of action.

 

    On remand, at a hearing on costs, the district court advised the parties: "Counsel, I have to tell you, I have reviewed the case pretty thoroughly. I don't see any reason why costs should not be imposed in this case. Even though there is, perhaps, no prevailing party, it does certainly appear to me that just cause [sic] should be awarded to the defendants. It appears that this action was filed prematurely, and so, therefore, you know, it just makes sense to me to award costs to the defendants."

 

    In conclusion, the Appeals Court says, ". . .we conclude that the district court's standard is inadequate and erroneous. The award of costs may well have been appropriate here. But we do not take a position on the ultimate award of costs, a decision we leave to the district court. Rather, we reiterate that while § 1920 may be helpful in determining what costs to award once other relevant factors have been considered, its enumeration of cost items is not a substitute for determining whether an award of costs is 'just' under § 1919. Nor can the award of costs be presumed simply because a party was successful on a threshold ground and the costs were incurred. We vacate the cost award and remand to the district court to consider the 'just costs' issue consistent with the considerations outlined in this opinion."

 

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

 

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Turtle Island Restoration Network v. Department of Commerce

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-15783. Appealed from the United States District Court for the District of Hawaii. The Appeals Court explains that the Hawaii Longline Association appeals the approval of a consent decree entered into by plaintiff environmental groups and defendant Federal agencies affecting the regulation and management of the Hawaii shallow-set, swordfish longline fishery.

    Appellant challenges the district court's vacatur, under the terms of the consent decree, of a regulation increasing the limit on incidental interactions between longline fishing boats and loggerhead turtles and replacing the increased limit with a lower limit that was previously in effect. Appellant argues that the district court abused its discretion in approving a consent decree that violates Federal law by allowing the National Marine Fisheries Service to change duly promulgated rules without following the procedural rulemaking requirements of the Magnuson-Stevens Act and the Administrative Procedure Act.

    The Appeals Court affirmed the district court's vacatur. The Appeals Court concluded, "Because the Consent Decree is injunctive in nature, this court has jurisdiction under 28 U.S.C. § 1292(a)(1). The Consent Decree does not purport to make substantive changes to the Fishery regulations, so the rulemaking provisions of the Magnuson Act and the APA do not apply. The district court did not clearly err in finding that a return to lower incidental take limits is more protective of loggerhead turtles."

 

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

 

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Alliance For The Wild Rockies v. Salazar

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 11-35661 & 11-35670. Appealed from the United States District Court for the District of Montana. The Appeals Court explains that plaintiff environmental groups seek to enjoin the implementation of a statute, Section 1713 of the 2011 Appropriations Act, that orders the Secretary of the Interior to remove a portion of a distinct population of gray wolves from the protections of the Endangered Species Act (ESA) without regard to any statute or regulation that might otherwise apply.

 

    Section 1713 effectively undid an earlier district court decision that found that such an action by the government, a "partial delisting," would violate the ESA. Plaintiffs brought this action contending that Section 1713 violates the separation of powers. The district court rejected plaintiffs' claims on the ground that Congress had acted within its constitutional authority to change the laws applicable to pending litigation. The Appeals Court said, "Because this case is controlled by Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), we affirm."

 

    The Center for Biological Diversity (CBD), one of the parties in the case indicated in a release on the decision, "Congress set a terrible precedent by passing this backdoor rider that took away protection from wolves. Scientists, not politicians, need to decide which species need protection. That's the law. And that's what makes sense if we're going to save animals and plants from extinction." CBD indicated that the rider marked the first time Congress has removed a plant or animal from the endangered species list. The rider directed the U.S. Fish and Wildlife Service to reissue a rule removing federal protections from northern Rocky Mountain wolves, despite ongoing litigation over the lawfulness of that delisting rule.

    CBD said, "Today's ruling holds that the rider is constitutional because it amends the Endangered Species Act by exempting the delisting rule from all law. The panel rejected arguments by conservation groups that Congress violated the separation-of-powers doctrine because the rider blocked judicial review and ordered an outcome, in ongoing litigation, without clearly amending the Endangered Species Act, effectively negating the role of the judiciary." CBD said, "We will continue to fight the good fight on behalf of wolves across the country. These incredible animals deserve a shot at recovery beyond just the few pockets where they eke out a living today."

    Access the complete opinion (click here). Access a release from CBD (click here).[#Wildlife, #CA9]

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Scottsdale Indemnity v. Village of Crestwood

Mar 12: In the U.S. Court of Appeals, Seventh Circuit, Case Nos. 11-2385, 11-2556, & 11-2583. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. The appeal in a diversity suit governed by Illinois law requires the Appeals Court to interpret the pollution exclusion from coverage found in most general liability insurance policies. The most common policy is the "commercial general liability policy" drafted by the Insurance Services Office and purchased by businesses to insure against losses arising out of general business operations. The policies at issue in this case are "public entity general liability policies," which are issued to municipalities to cover analogous risks and contain the same pollution exclusion as the commercial general liability policy.

 

    Two insurers sue for a declaration that they have no duty either to defend a series of tort suits brought against their insureds (the Village of Crestwood, Illinois, and past and present Village officials) or to indemnify the insureds should the plaintiffs in those suits prevail. The district court, holding that the allegations in the tort complaints triggered the pollution exclusion, granted summary judgment for the insurers, precipitating the appeals, which are multiple because there are a number of different declaratory-judgment suits.

 

    In 1985 or 1986 Crestwood's mayor and other Village officials learned from state environmental authorities that one of the wells was contaminated by perc (PCE—perchloroethylene, also known as tetrachloroethylene). Village officials promised the state authorities that the well would be used only in emergencies. But instead, for reasons of economy, the well continued to be used as a source of the daily Village water supply -- without disclosure to the Village's residents. The well remained in use until 2007, and not until 2009 was it sealed.

 

    Hundreds of Crestwood residents, having learned of the contamination of their water supply from a series of articles in the Chicago Tribune, sued the Village and past and present Village officials in an Illinois state court seeking damages for injury to health. In a parallel suit the State of Illinois seeks an injunction requiring the Village to finance "a site inspection to determine the

nature and extent of contamination" and take "all necessary steps to remediate the contamination." All these suits are pending.

 

    In its reasoning the Appeals Court said, "The insureds might as well be arguing that because the Village has never manufactured perc it is responsible for none of the harms that dispersing perc might cause. That would be like a murderer arguing that his victim was killed not by him but by his gun. The Village "caused" the contamination of its water supply (it could have sealed the well a quarter of a century ago, when it discovered the well was contaminated) in a perfectly good sense of the word. . .

 

    Finally, in affirming the district court the Appeals Court indicates, "The insurers conceded at oral argument that the duty to defend would be activated if so enigmatic a complaint were allowed. The complaints actually filed, however, describe in copious detail the conduct giving rise to the tort suits, and in doing so inadvertently but unmistakably acknowledge the applicability of the pollution exclusion."

 

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

 

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