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.

 

    Access the complete opinion and dissent (click here).

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."

 

    Access the complete opinion (click here).

U.S. v. Bengis

Jan 4: In the U.S. Court of Appeals, Second Circuit, Case No. 07-4895. In this case, which was argued over two years ago (December 10, 2008), the United States of America appeals from two orders of the United States District Court

for the Southern District of New York which denied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA), and second, the Victim and Witness Protection Act of 1982 (VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."

 

    The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (jointly, defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court held that South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the government failed to prove that the illegally harvested lobsters were the property of South Africa; and finally that even if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."

 

    The Appeals Court reversed and remanded the district court orders and said, ". . .we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of such an order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."

 

    Access the complete opinion (click here).

U.S. v. Southern Union Company

Dec 22: In the U.S. Court of Appeals, First Circuit, Case No. 09-2403. Appealed from the District Court of Rhode Island, Providence. According to the Appeals Court, this appeal by Southern Union, a natural gas company convicted by a jury of storing hazardous waste without a permit, raises two issues of initial impression. First, the case tests whether Federal criminal enforcement may be used under the Resource Conservation and Recovery Act (RCRA), where certain Federally approved state regulations as to hazardous waste storage have been violated. Second, the case also raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.

   

    The hazardous waste at issue is mercury, which the Appeals Court says "can poison and kill those exposed to it" In this case 140 pounds of mercury became the "play toy of young vandals who spread it about, including at their homes in a local apartment complex, after they spilled it around Southern Union's largely abandoned and ill-guarded Tidewater site in Pawtucket, Rhode Island."

 

    The Appeals Court affirmed the district court's rulings on Southern Union's conviction, as set forth in United States v. Southern Union. The Appeals Court concluded that: "(1) Southern Union is precluded by 42 U.S.C. § 6976(b) from challenging the EPA's 2002 Immediate Final Rule authorizing Rhode Island's RCRA regulations. Having failed to use the statutory procedure for judicial review, Southern Union may not raise the issue by collateral attack; (2) the 2002 Rule, in any event, is valid and was within the EPA's authority to adopt; and (3) the conviction does not violate Southern Union's right to fair notice under the Due Process Clause.

 

    The Appeals Court also affirmed the fine imposed saying, "The Apprendi issue is close but the Supreme Court's recent decision in Oregon v. Ice, 129 S. Ct. 711 (2009), leads us to hold that the Apprendi rule does not apply to the imposition of statutorily prescribed fines. If, however, we were wrong in our assessment of the Apprendi issue, we would find that any error under Apprendi was not harmless and that the issue of the fine would need to be remanded. Finally, we also hold that the financial penalties imposed did not constitute an abuse of the district court's discretion."

 

    Southern Union claimed the $18 million penalty was substantively unreasonable, arguing that it was grossly excessive in comparison to the penalties of $75,000-$250,000 imposed in what it describes "as cases of more egregious RCRA violations." However, on the penalty issue the Appeals Court said, ". . .the district court made 'an individualized assessment based on the facts presented,' and 'adequately explain[ed] the chosen sentence.' [Citing Gall, 552 U.S. at 50]. The district court explained why the statutory factors justified the penalties, noting that Congress measured the seriousness of long-term RCRA violations by imposing a high, per day statutory maximum fine; that Southern Union's willingness to put a densely-populated residential community, local public safety employees, and its own employees at risk by storing hazardous waste under deplorable conditions in their midst indicated great culpability; and that there was a need for a penalty substantial enough to attract the attention of large corporations, thereby achieving not only specific, but also general, deterrence. . ."

 

    Access the complete opinion (click here).

Hoopa Valley Tribe v. FERC

Dec 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1134. The Appeals Court indicates that one of the modern U.S. government's major regulatory tasks is to reconcile competing demands on the Nation's natural resources. The dispute in this case concerns water resources in the Pacific Northwest, where a hydroelectric plant provides power to some citizens but interferes with the food needs and recreational desires of others.

 

    The Klamath Hydroelectric Project is located on the Klamath River in Oregon and California. The Project serves as a source of electricity for customers in a six-state area of the Pacific Northwest. From 1956 to 2006, a power company known as PacifiCorp operated the Klamath Hydroelectric Project pursuant to a 50-year license granted by the Federal Energy Regulatory Commission (FERC). Since the original license expired in 2006, PacifiCorp has operated the Project under successive annual licenses granted by FERC.

 

    The Hoopa Valley Tribe of American Indians holds fishing rights in the Klamath River and subsists in part on the River's trout. In 2007, the Tribe requested that FERC impose conditions on PacifiCorp's annual licenses so as to preserve the Klamath River's trout fishery. FERC declined to do so. In this Court, the Tribe has challenged FERC's refusal as contrary to the Commission's regulations and precedents, and as unsupported by substantial evidence. The Appeals Court said it disagreed and denied the Tribe's petition.

 

    The Appeals Court ruled, "This controversy presents "a classic example of a factual dispute the resolution of which implicates substantial agency expertise.' Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989). FERC acknowledged conflicting evidence and weighed the testimony of dueling experts. There was evidence on both sides; we thus have no basis to overturn the Commission's resolution of this debate. The Commission's conclusion is based on substantial evidence. Cf. Wis. Valley Improvement Co. v. FERC, 236 F.3d 738, 746-47 (D.C. Cir. 2001)."

 

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The Lands Council v. McNair

Dec 28: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-36026. Appeal from the U.S. District Court for the District of Idaho. The Lands Council and Wild West Institute challenged the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project (Project) area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violates the National Forest Management Act (NFMA), the IPNF Plan, and the National Environmental Policy Act (NEPA). On cross-motions for summary judgment, the district court granted summary judgment in favor of the Forest Service and denied Lands Council and Wild West Institute's motion for summary judgment. Lands

Council appeals. The Appeals Court affirmed the decisions of the district court.

 

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Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service

Dec 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17406. Appeal from the United States District Court for the District of Arizona. The Kofa National Wildlife Refuge and Wilderness in

southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service (Service) built two water structures (the Yaqui and McPherson tanks) within the wilderness area.

 

    Plaintiffs Wilderness Watch, Inc., et al brought suit against the Service. Plaintiffs allege that the Service's actions violated the express prohibition on the development of structures in the Wilderness Act, The district court granted summary judgment

to the Service, and Plaintiffs appealed. Reviewing de novo, High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630, 638 (9th Cir. 2004), the Appeals Court reversed and remanded the district court decision.

 

    Access the complete opinion (click here).