Jan 15: In the U.S. Court of Appeals, D.C. Circuit, Case No. 06-5199. The Appeals Court says, "The Secretary of the Interior has interpreted the phrase 'valid existing rights' in the Surface Mining Control and Reclamation Act to foreclose surface mining operations in sensitive areas. The National Mining Association [NMA] challenges this reading of the statute, but we conclude that we must defer to the Secretary’s reasonable interpretation of this ambiguous phrase."
In 1977, Congress enacted the Surface Mining Control and Reclamation Act (SMCRA), “to protect society and the environment from the adverse effects of surface coal mining operations.” Section 522(b) of the SMCRA authorizes the Secretary of the Interior (Secretary) to prohibit surface coal mining operations on Federal lands if he determines them to be unsuitable for that purpose. Section 522(e) bans outright surface mining in statutorily designated areas. In the appeal, D.C. Circuit is asked to determine how Congress intended that ban to work.
The relevant text of § 522(e) provides: "After August 3, 1977, and subject to valid existing rights no surface coal mining operations except those which exist on August 3, 1977, shall be permitted [in the statutorily designated areas]." The Appeals Court says, "Because one must show 'valid existing rights' (VER) to start a surface mining operation in a § 522(e) area, the meaning of the phrase is critical. For decades, the Secretary and the courts have wrestled with how best to understand VER and determine what it protects. We need not recount this history. Suffice it to say that VER has occasioned a spectrum of agency interpretations, ranging from a relaxed 'ownership and authority' standard, which required only that the miner show a property right in the coal, to a more exacting 'all permits' standard, which called for a showing that surface mining licenses had been issued prior to the date § 522(e) took effect."
In its final analysis the Appeals Court says, "At oral argument, the NMA did not claim that the government would be on the hook for a 'massive and unforeseen' sum, paid out to frustrated miners as just compensation... The record is devoid of evidence suggesting it is so. Given this implicit concession that the 1999 Rule will have relatively insignificant takings implications that can be readily addressed in the Court of Claims, there is no serious constitutional problem to be avoided. '[T]he avoidance canon is not applicable when the statute or regulation would effect a taking, if at all, only in certain situations.' Nat’l Mining Ass’n v. Babbitt, 172 F.3d 906, 917 (D.C. Cir. 1999). The usual Chevron analysis is therefore applied to the 1999 Rule, which results in our deferring to the Secretary’s reasonable interpretation of an ambiguous statutory term. The district court properly accorded Chevron deference to the Secretary’s interpretative rule. The judgment is affirmed."
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Tuesday, January 15, 2008
Friday, January 11, 2008
Feldman v. Bomar (National Park Service)
Jan 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-55675. Richard Feldman, Robert Lee Puddicombe, and In Defense of Animals (IDA) (collectively Appellants) appeal the judgment in favor of the Nature Conservancy (TNC), the National Park Service (NPS), NPS’s director, and the Chief of Natural Resources Management at Channel Islands National Park (collectively Appellees) on their claims that Appellees violated the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) in adopting NPS’s program to restore and protect Santa Cruz Island by, in part, eradicating its feral pig population.
Appellants do not dispute that the pigs threatened Santa Cruz Island’s ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the
mainland, and they challenge NPS’s process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the Appeals Court granted Appellees’ motion to dismiss the appeal as moot. The Appeals Court said, "Appellees have met their heavy burden of demonstrating that 'no effective relief for the alleged violation[s] can be given,'" citing, Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).
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Appellants do not dispute that the pigs threatened Santa Cruz Island’s ecological and archeological infrastructure; however, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the
mainland, and they challenge NPS’s process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because Appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the Appeals Court granted Appellees’ motion to dismiss the appeal as moot. The Appeals Court said, "Appellees have met their heavy burden of demonstrating that 'no effective relief for the alleged violation[s] can be given,'" citing, Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002).
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Friday, January 4, 2008
Bering Strait Citizens v. US Army Corps of Engineers
Jan 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35506. The appeal concerns a permit issued to Defendant-Appellee Alaska Gold Company (AGC), by Defendant-Appellee Army Corps of Engineers (the Corps) for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act (CWA) which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. The project, known as the “Rock Creek Mine Project,” would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres.
Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, et al (collectively, BSC), allege that the Corps violated the CWA and the National Environmental Policy Act (NEPA) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.
In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, 'co-disposal' of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA."
On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA."
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Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, et al (collectively, BSC), allege that the Corps violated the CWA and the National Environmental Policy Act (NEPA) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.
In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] reflects the Corps consideration of 24 different alternatives, including different placements of the mine pits and related facilities, alternative designs for the pits and tailings storage facilities, 'co-disposal' of tailings and development rock together, and relocation of access roads. After extensive consultation with AGC, the Corps determined that all alternatives were impracticable because the nearby uplands were too steep to stabilize the facilities, because the alternative designs would require the destruction of higher value wetlands, or would expand the project’s footprint, or because alternatives were cost prohibitive or undesirable for other reasons. This rationale is acceptable under the CWA."
On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... On balance, we conclude that the Rock Creek Mine Project has no significant detrimental effect on the environment in and near Nome. Accordingly, the Corps was not required to prepare an EIS based on the issues raised by BSC or by the EPA."
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Thursday, January 3, 2008
Royal Indemnity v. Apex Oil Company
Jan 2: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. Case No: 06-3454, 06-3461 and 06-3469. Royal Indemnity Company brought the action pursuant to 28 U.S.C. §§ 2201 and 2202, to seek a declaration of the rights and obligations of Royal Indemnity Company, various other insurance companies and Apex Oil Company, Inc. (Apex), under certain insurance policies Royal Indemnity Company and the other insurance companies issued to Apex. The Appeals Court affirmed the district court’s decision to abstain, but vacated the dismissal order and remanded the case so that the court can instead enter an order staying the proceedings.
Between May 2003 and April 2005, the State of Illinois, the United States, and a group of individuals filed five separate lawsuits (the underlying suits) against Apex in state and federal courts in Illinois based on the actions of Apex and its predecessor companies in releasing contaminants into the soil surrounding its oil refinery in Hartford, Illinois. Royal Indemnity Company defended Apex on the majority of the underlying suits. On August 5, 2005, Apex brought suit against multiple insurers in the Circuit Court of Madison County, Illinois (the Illinois lawsuit), seeking a declaration of the parties’ rights and responsibilities with respect to the Hartford soil contamination under policies the insurance companies had issued to Apex.
On March 22, 2006, Royal Indemnity Company initiated the lawsuit by filing a complaint in Federal court pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, “seeking adjudication of the parties’ rights and obligations under certain insurance policies.” In its complaint, Royal Indemnity Company also sought a declaration of the rights and responsibilities of the parties based on claims of equitable contribution, subrogation, unjust enrichment and/or equitable estoppel for the costs Royal Indemnity Company incurred in defending Apex as well as attorneys’ fees, costs and interest.
Royal argues that the district court erred in applying the Wilton and Brillhart abstention doctrine and instead should have applied the “exceptional circumstances” test articulated in Colorado River. The Eighth Circuit said, "However, unlike Colorado River, this lawsuit involves a declaratory judgment action. Apex, therefore, claims that the district court correctly relied upon Wilton and Brillhart to govern its abstention analysis." Royal also argued that the Ninth Circuit’s decisions in Government Employees Insurance Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998) (en banc), and United National Insurance Co. v. R & D Latex Corp., 242 F.3d 1102 (9th Cir. 2001), support its claims that Wilton and Brillhart do not apply here. However, the Appeal Court said, "...not only are these cases not binding precedent for us, they are easily distinguishable..."
Access the complete opinion (click here).
Between May 2003 and April 2005, the State of Illinois, the United States, and a group of individuals filed five separate lawsuits (the underlying suits) against Apex in state and federal courts in Illinois based on the actions of Apex and its predecessor companies in releasing contaminants into the soil surrounding its oil refinery in Hartford, Illinois. Royal Indemnity Company defended Apex on the majority of the underlying suits. On August 5, 2005, Apex brought suit against multiple insurers in the Circuit Court of Madison County, Illinois (the Illinois lawsuit), seeking a declaration of the parties’ rights and responsibilities with respect to the Hartford soil contamination under policies the insurance companies had issued to Apex.
On March 22, 2006, Royal Indemnity Company initiated the lawsuit by filing a complaint in Federal court pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, “seeking adjudication of the parties’ rights and obligations under certain insurance policies.” In its complaint, Royal Indemnity Company also sought a declaration of the rights and responsibilities of the parties based on claims of equitable contribution, subrogation, unjust enrichment and/or equitable estoppel for the costs Royal Indemnity Company incurred in defending Apex as well as attorneys’ fees, costs and interest.
Royal argues that the district court erred in applying the Wilton and Brillhart abstention doctrine and instead should have applied the “exceptional circumstances” test articulated in Colorado River. The Eighth Circuit said, "However, unlike Colorado River, this lawsuit involves a declaratory judgment action. Apex, therefore, claims that the district court correctly relied upon Wilton and Brillhart to govern its abstention analysis." Royal also argued that the Ninth Circuit’s decisions in Government Employees Insurance Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998) (en banc), and United National Insurance Co. v. R & D Latex Corp., 242 F.3d 1102 (9th Cir. 2001), support its claims that Wilton and Brillhart do not apply here. However, the Appeal Court said, "...not only are these cases not binding precedent for us, they are easily distinguishable..."
Access the complete opinion (click here).
Wednesday, January 2, 2008
Center for Biological Diversity v. Lohn
Dec 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-35638. The Apepals Court Order indicates that, "The petition for panel rehearing is granted. The opinion filed on April 26, 2007, and appearing at 483 F.3d 984 (9th Cir. 2007) is withdrawn. The superseding opinion will be filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed." In its opinion, the Appeals Court indicates that it is asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid.
The Center for Biological Diversity (Center), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale (Southern Resident) as an endangered species under the Endangered Species Act (ESA). Applying its Distinct Population Segment Policy (DPS Policy) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon.
The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” However, the district court set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. The district court ordered the Service to reexamine according to the declared legal standard whether the Southern Resident should be listed as an endangered species and to issue a new finding within twelve months.
Pursuant to the district court’s order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a "threatened" species. The Center then appealed from the district court’s judgment, arguing that the Service’s DPS Policy is not entitled to deference under Chevron and that the policy is unlawfully restrictive. Subsequently, the Service issued a final rule listing the Southern Resident as an "endangered" (as opposed to "threatened") species. The Service contends that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. The Center asks the Appeals Court to declare the Service’s DPS Policy unlawful and to “instruct [the Service] not to apply the DPS Policy in making a final determination on the agency’s decision to finalize the proposed rule to list the Southern Resident killer whale.”
The Appeals Court ruled, "The Service’s issuance of a final rule listing the Southern Resident as an endangered species renders this case moot. Accordingly, we vacate the portion of the district court’s order from which the Center has appealed... (noting that we will only vacate a judgment of a district court if it is appealed to this court). We dismisss this appeal as moot and remand the case to the district court with instructions to vacate its grant of summary judgment in favor of the Service."
Access the complete opinion (click here).
The Center for Biological Diversity (Center), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (Service) to list the Southern Resident killer whale (Southern Resident) as an endangered species under the Endangered Species Act (ESA). Applying its Distinct Population Segment Policy (DPS Policy) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon.
The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” However, the district court set aside the Service’s “not warranted” finding because it failed to utilize the best available scientific data when determining whether the Southern Resident was “significant” under that policy. The district court ordered the Service to reexamine according to the declared legal standard whether the Southern Resident should be listed as an endangered species and to issue a new finding within twelve months.
Pursuant to the district court’s order, the Service reexamined the listing petition and issued a proposed rule that recommended listing the Southern Resident as a "threatened" species. The Center then appealed from the district court’s judgment, arguing that the Service’s DPS Policy is not entitled to deference under Chevron and that the policy is unlawfully restrictive. Subsequently, the Service issued a final rule listing the Southern Resident as an "endangered" (as opposed to "threatened") species. The Service contends that this case is now moot because it has, since the district court’s decision, issued a proposed rule that recommended listing the Southern Resident as a threatened species and ultimately has issued a final rule listing the Southern Resident as an endangered species. The Center asks the Appeals Court to declare the Service’s DPS Policy unlawful and to “instruct [the Service] not to apply the DPS Policy in making a final determination on the agency’s decision to finalize the proposed rule to list the Southern Resident killer whale.”
The Appeals Court ruled, "The Service’s issuance of a final rule listing the Southern Resident as an endangered species renders this case moot. Accordingly, we vacate the portion of the district court’s order from which the Center has appealed... (noting that we will only vacate a judgment of a district court if it is appealed to this court). We dismisss this appeal as moot and remand the case to the district court with instructions to vacate its grant of summary judgment in favor of the Service."
Access the complete opinion (click here).
Thursday, December 20, 2007
Ohio River Valley v. Green Valley Coal Co.
Dec 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1475. Green Valley Coal Company (Green Valley) appealed the award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act (SMCRA or the Act). Initially, three environmental organizations, Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively, OVEC), sued the Director of the West Virginia Division of Environmental Protection (the state agency) to mandate changes in the way the agency enforces its regulatory program under SMCRA.
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
Access the complete opinion (click here).
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
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Fishing Co AK vs. Gutierrez, Carlos
Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5153. In April 2006, the Secretary of Commerce, Carlos Gutierrez (Secretary), via his delegee the National Marine Fisheries Service (Service), issued a final rule establishing a minimum “groundfish retention standard” for the Bering Sea and Aleutian Islands fishing region [71 FR 17,362 4/6/06]. In issuing the rule, the Service exercised authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).
The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.
Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.
Access the complete opinion (click here).
The Fishing Company of Alaska (FCA), an operator of commercial fishing vessels in the region, sued the Secretary in district court, claiming that the rule was unlawful because of its inclusion of three monitoring and enforcement (M&E) requirements. FCA argued that the Service had adopted the rule without statutorily required predicate action by the North Pacific Fishery Management Council (Council), a regional body created by the MSA to represent state governments, certain agencies of the federal government, and other interested constituencies. FCA also claimed that the M&E requirements were substantively inconsistent with the MSA’s “National Standards” for conservation.
Both sides sought summary judgment, which the district court granted in favor of the defendants. FCA appealed, and the Appeals Court reversed the district court ruling, finding that the inadequacy of the Council’s action fatally tainted the Final Rule’s three challenged M&E requirements. The case was remanded with instructions to vacate the three disputed M&E requirements of the Final Rule.
Access the complete opinion (click here).
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