Home Builders' Association v. U.S. Fish & Wildlife Service

Aug 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16732. The Home Builders Association of Northern California and other industry groups (collectively Home Builders") challenge the designation by the U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species. In the district court, Butte Environmental Council and other conservation groups (collectively Butte Environmental) intervened as defendants in support of the designation, and they have participated in the appeal. The district court upheld the designation, and Home Builders appeals, raising five technical challenges to FWS's procedure. The Appeals Court said, "We conclude that none of those challenges have merit, and we affirm."

 

    By way of background, the Appeals Court explains vernal pools are a "unique kind of wetland ecosystem" that exists only temporarily. The pools typically appear in spring -- that is, vernally -- following fall and winter rains before drying up until the

following year. Since the pools' existence depends on rainfall, pool size and location can vary from year to year. To survive years in which no pool develops due to low rainfall, vernal pool species have developed a dormant stage: vernal pool plant seeds can remain viable for several years and the fertilized egg of a vernal pool crustacean can remain viable for ten years or more. The egg develops a thick shell that protects it from extreme temperatures and even digestive enzymes, meaning that it can be transported within the digestive tracts of animals without harm.

 

    On one of the critical challenges the Appeals Court said, "Home Builders's position is contrary to Arizona Cattle Growers, 606 F.3d at 1172, where the court rejected the notion that 'FWS was required to attribute to the critical habitat designation economic burdens that would exist even in the absence of that designation.' That opinion also expressly approved the baseline approach to economic analysis, under which 'any economic impacts of protecting the [listed species] that will occur regardless of the critical habitat designation . . . are treated as part of the regulatory "baseline" and are not factored into the economic analysis of the effects of the critical habitat designation.' Id. Beyond arguing that FWS failed to follow the requirements of statutory and regulatory

provisions that have no application, Home Builders raises no other argument that anything was insufficient about FWS's consideration of the economic impact of its designation."

 

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Howmet Corporation v. U.S. EPA

Aug 6: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-5360. U.S. EPA said Howmet Corporation (Howmet) violated the Resource Conservation and Recovery Act and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq. (collectively RCRA), and its implementing regulations. Howmet argued instead that its actions were permitted by the regulations. The Appeals Court said, "Whether viewed as a syntactical ambiguity or a semantic squabble, the dispute focuses on one question: when is a material no longer serving 'the purpose for which it was produced?' The EPA insists the initial use of the material is determinative; Howmet contends the initial use is irrelevant. The question matters because 'spent material' is subject to RCRA's hazardous waste regulations, but material that has not been spent is not."

 

    Howmet insisted that used KOH (liquid potassium hydroxide) sent to a fertilizer manufacturer [Royster] for use as a fertilizer ingredient was not "spent material" and thus not subject to RCRA regulations. After Howmet lost this argument before an administrative law judge (ALJ) and the Environmental Appeals Board (EAB), the district court rejected Howmet's Administrative Procedure Act claim and granted the EPA's cross-motion for summary judgment, holding that EPA's interpretation of its "spent material" regulation was not arbitrary and capricious and that Howmet had fair notice of the Agency's interpretation. See  Howmet Corp. v. EPA, 656 F. Supp. 2d 167 (D.D.C. 2009).

 

    In a 2-1 split decision, the majority Appeals Court affirmed the district court decision upholding EPA's interpretation. The majority said, "The EPA's explanation of the definition of spent material in the Guidance Manual should have put Howmet on notice of the EPA's interpretation of its 'spent material' definition, and Howmet should have been able to determine that, based on the EPA's interpretation, the used KOH it transferred to Royster was a spent material. Use as a fertilizer ingredient is not a use

'similar to' use as an industrial cleaning agent. Thus, even assuming the EPA's 1985 Final Rule and its accompanying regulations lacked enough clarity, on their own, to provide Howmet fair notice of the EPA's interpretation of its spent material definition, the Guidance Manual, made available to Howmet one year after the regulation was promulgated and thirteen years before the conduct at issue here, was sufficient to do so."

 

    In a convincing dissent, Justice Kavanaugh argues, ". . .the statute provides that hazardous waste must be 'discarded material.' 42 U.S.C. § 6903(5), (27). In 1985, EPA issued regulations that construe 'discarded material' to include certain 'spent material.' See 40 C.F.R. § 261.2. A material is "spent" if it is no longer suitable for 'the purpose for which it was produced.' Id. § 261.1(c)(1). A separate regulation makes clear that 'purpose,' though singular, can include multiple purposes. See id. § 260.3(b). The key issue in this EPA enforcement action concerns the 1985 regulations' phrase 'purpose[s] for which [a material] was produced.' The material at issue here -- liquid potassium hydroxide -- is produced and marketed for, among other things, use in fertilizer. Yet EPA seeks to impose fines on Howmet for shipping liquid potassium hydroxide for use in fertilizer simply because Howmet had already used the potassium hydroxide as a metal cleaning agent. In justifying its enforcement action, EPA claims that the "purpose for which [a material] was produced" includes only the material's first use by the purchaser. In my judgment, EPA's argument mangles the language of the 1985 regulations."

 

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U.S. ex rel. Lemmon v. Envirocare of Utah, Inc.

Aug 4: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-4079. Brought under the False Claims Act (FCA), 31 U.S.C. § 3729(a)(1) and (2), this suit involves qui tam [i.e. lawsuit by a private citizen against a person or company who is believed to have violated the law in the performance of a contract with the government] claims against Defendant-Appellee Envirocare of Utah, Inc. (Envirocare) by one of its former employees and two former employees of an Envirocare subcontractor (Plaintiffs). The suit arises from Envirocare's hazardous-and-radioactive-waste-disposal contracts with the federal government (government). Plaintiffs allege that, between June 2000 and June 2001, Envirocare repeatedly violated its contractual and regulatory obligations by improperly disposing of the contracted for waste. In spite of these violations, Plaintiffs contend, Envirocare falsely represented to the government that it had fulfilled its obligations and, based on its false representations, improperly received payment from the government.

 

    The district court dismissed under Rules 8(a), 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff contends that the district court overlooked "her implied-certification (of false claims) theory and erred in rejecting her express-certification theory." The Appeals Court reversed the district court decision.

   

    The Appeals Court explained, "Envirocare expressly certified that the payments requested were only for work performed in accordance with the specifications, terms, and conditions of the contract . . .  In so arguing, Envirocare seeks to hold Plaintiffs to a higher standard than is required. The federal rules do not require a plaintiff to provide a factual basis for every allegation. Nor must every allegation, taken in isolation, contain all the necessary information. Rather, to avoid dismissal under Rules 9(b) and 8(a), plaintiffs need only show that, taken as a whole, a complaint entitles them to relief. See, e.g., Twombly, 550 U.S. at 554-56. The complaint must provide enough information to describe a fraudulent scheme to support a plausible inference that false claims were submitted. Because Plaintiffs have provided sufficient factual detail to demonstrate the viability of their FCA claims, the dismissal under Rule 9(b) was error."

 

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City of Colton v. American Promotional Events

Aug 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-56718. The Appeals Court says, "We must decide, among other things, whether the City of Colton, California, can recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allegedly incurred as a result of perchlorate contamination in its water supply."

 

    Numerous defendants filed a motion for summary judgment, arguing that Colton could not recover its wellhead treatment program costs under CERCLA. In its opposition, Colton argued that the defendants were liable for not only its wellhead treatment program costs, but also costs associated with a future Basin-wide cleanup estimated to cost between $55 and $75 million. The district court granted summary judgment for the defendants on Colton's federal claims and declined to exercise supplemental jurisdiction over Colton's state law claims. The district court held that Colton could not recover its costs associated with the wellhead treatment program because it failed to show that such costs were necessary and consistent with the NCP; furthermore, because Colton could not show that it was entitled to recover any of its past costs, its claim for declaratory relief as to its future costs necessarily failed.

 

    The Appeals Court said, "Colton first seeks reversal of the district court's summary judgment denying recovery of its past response costs. Colton challenges the district court's conclusion that the wellhead treatment program was unnecessary because there was no immediate threat to the public health or environment. See 42 U.S.C. § 9607(a)(4)(B). Colton concedes, however, that it failed to comply with the national contingency plan in its past response action. Because Colton's concession is a sufficient ground upon which to affirm the summary judgment with respect to past response costs, we decline to review the merits of the district court's conclusion that such costs were unnecessary."

 

    Colton also contends that the district court erred in granting summary judgment denying its claim for declaratory relief as to its future response costs. . . The Appeals Court said, "Colton argues that its failure to incur recoverable response costs in the past has no bearing on whether it will incur such costs in the future. Therefore, Colton contends that it should still be allowed to seek declaratory relief as to liability for its future costs. Whether a CERCLA plaintiff's failure to establish liability for its past costs necessarily dooms its bid to obtain a declaratory judgment as to liability for its future costs appears to be an issue of first impression in this circuit. Our sister circuits have taken divergent approaches to this issue." The Appeals Court cites cases from the Eighth, Second, Third, First and Tenth Circuits.

 

    In affirming the district court's summary judgment, the Appeals Court ruled in part, "We conclude that CERCLA's purposes would be better served by encouraging a plaintiff to come to court only after demonstrating its commitment to comply with the NCP and undertake a CERCLA-quality cleanup. Upon establishing liability under section 107, the plaintiff can 'obtain reimbursement for [its] initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job.' Dant & Russell, 951 F.2d at 249-50. Such a declaration would allow the plaintiff to avoid costly and time-consuming relitigation of liability once it has already been established. See Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) ('Congress included language [in section 113(g)(2)] to insure that a responsible party's liability, once established, would not have to be relitigated . . . .'). Where, as here, the plaintiff fails to establish section 107 liability in its initial cost-recovery action, no declaratory relief is available as a matter of law."

 

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Pit River Tribe v. U.S. Forest Service

Aug 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-15385. The Appeals Court indicates that the appeal arises out of an action by the Pit River Tribe, et al (collectively Pit River) against the United States Forest Service, et al (collectively agencies), and against Calpine Corporation (Calpine). This case has already resulted in one appeal to this court, Pit River Tribe v. United States Forest Service, 469 F.3d 768, 772 (9th Cir. 2006) (Pit River I). The underlying litigation concerns Calpine's efforts to develop a geothermal power plant near Medicine Lake, an area of spiritual significance to the Pit River Tribe and other Native American tribes in the region.

 

    The district court concluded that the agencies need not "withdraw the 1988 leasing decisions," but that the "BLM shall have absolute discretion to void or cancel the leases, deny lease extensions or unit commitment, and add or modify lease conditions." In conclusion, the Appeals Court said, ". . .we substantially uphold the district court's remand; and we remand with instructions to correct (1) the statement that "the 1998 lease extension in this case took effect and the 1988 leases did not expire" as explained in Part II.A of this opinion, and (2) the typographical error using the word "until" instead of the word 'unit,' as explained in Part II.C of this opinion." The case was affirmed in part, reversed in part and remanded for further proceeding consistent with the opinion.

 

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McKeen v. US Forest Service

Aug 2: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-2290. The Appeals Court explains that for more than forty years, the United States Forest Service (hereinafter Forest Service) has granted Plaintiff Hugh B. McKeen and his family a series of term livestock grazing permits to graze cattle and/or horses on the Cedar Breaks Allotment in the Glenwood Ranger District of the Gila National Forest in Catron County, New Mexico. Recently, McKeen sought to have several Forest Service actions which affected these permits set aside pursuant to the Administrative Procedure Act (APA). The district court denied each of McKeen's requests for relief and McKeen filed a timely appeal. The Appeals Court affirmed in part and vacated in part. With respect to the claims which were vacated, the Appeals Court remanded them to the district court with instructions to dismiss them as moot.

 

    The Appeals Court concludes in part that, ". . .rather than identify any discrete action of the Forest Service which he challenges, McKeen continues to make broad, conclusory statements regarding the implementation of the Decision Notice. Even after a careful reading of McKeen's briefing and the record, it is simply impossible to determine precisely what Forest Service actions he believes have aggrieved him in this regard, and forest 'monitoring and management practices are reviewable [only] when, and to the extent that, they affect the lawfulness of a particular final agency action.' [citing] See Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th Cir.2002)."

 

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Alliance For The Wild Rockies v. Cottrell (USDA)

Jul 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35756. The Alliance for the Wild Rockies (AWR) appealed the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral arguments, the Appeals Court issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). The Appeals Court says that In its current opinion, it is setting forth its reasons for the reversal, and taking the opportunity to clarify an aspect of the "post-Winter standard for a preliminary injunction."

 

    In its conclusion the Appeals Court said, "We conclude that the district court erred in denying AWR's request for a preliminary injunction. AWR has established a likelihood of irreparable injury if the Project continues. AWR has also established serious questions, at the very least, on the merits of its claim under the ARA

[Appeals Reform Act]. Because AWR has done so with respect to its claim under the ARA, we do not reach its claims under NFMA and NEPA. The balance of hardships between the parties tips sharply in favor of AWR. Finally, the public interest favors a preliminary injunction."

 

    The Appeals Court also discusses the post-Winter issues (i.e. the Supreme Court's recent opinion in Winter v. Natural Res. Def. Council, 129 S. Ct. 365 (2008) [See WIMS 11/12/08] and notes that, "Three other circuits have directly confronted the question whether some version of a sliding scale test has survived Winter. They have split. The Fourth Circuit has held that the sliding scale approach is now invalid. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir.

2009) . . . The Seventh and Second Circuits have held to the contrary [i.e. Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) &  Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)]. The Ninth Circuit also notes that, The Second Circuit decision came down after the Supreme Court had decided two post-Winter cases, Munaf v. Geren, 553 U.S. 674 (2008), and Nken v. Holder, 129 S. Ct. 1749

(2009).

 

    The Ninth Circuit says, "For the reasons identified by our sister circuits and our district courts, we join the Seventh and the Second Circuits in concluding that the 'serious questions' version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter."

 

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