Gerard Keating v. Nebraska Public Power District

Nov 7: In the U.S. Court of Appeals, Eighth Circuit, Case No. 10-2441. Appealed from the United States District Court for the District of Nebraska. Several Nebraska farmers filed suit under 42 U.S.C. § 1983, alleging their due process rights were violated when Nebraska officials ordered the farmers to cease drawing water from the Niobrara Watershed without providing a predeprivation hearing. The Appeals Court said, "We reversed the district court's prior dismissal and remanded the matter to the court with specific instructions. On remand, the district court determined that there was no deprivation of a property right and entered summary judgment in favor of appellees. The district court also declined to exercise jurisdiction over pendent state law claims, dismissing those claims without prejudice. We agree with the district court's determination and affirm its thorough and well-reasoned decision."

 

    Explaining further, due to a decrease in water levels in the Niobrara Watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing.

 

    In this second appeal, the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing

to challenge the validity of the NPPD's permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR's determination of water scarcity.

 

    The Appeals Court said, "Appellants argue that when the DNR administers the Niobrara in a manner which requires permit holders to stop taking water, the state should conduct a hearing to give permit holders who are being issued Closing Notices an opportunity to challenge the DNR's determination that there is a scarcity requiring administration and to challenge the validity of any senior appropriator's permit. We reject this argument because when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are 'hereby given notice that [they] may be denied the use of water during times of scarcity.'"

 

    Access the complete opinion (click here). [#Water, #CA8]

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

U.S. v. Donovan

Oct 31: In the U.S. Court of Appeals, Third Circuit, Case No. 10-4295. Appealed from the United States District Court for the District of Delaware. In this important case, David Donovan added fill material to a portion of his property in New Castle County, Delaware that the United States contends is "wetlands" subject to the Clean Water Act (CWA). The Government brought an enforcement proceeding against him under the CWA to force him to remove the fill and pay a fine. Donovan argued that his property is not covered by the CWA. The case provides significant insight and analysis into the controversial 4-1-4 opinion of the U.S. Supreme Court in Rapanos v. United States, as well as related opinions.

 

    The District Court disagreed, granting summary judgment in the Government's favor and imposing a $250,000 fine. In the appeal, the Appeals Court is called upon to decide what test to apply in order to determine whether land is "wetlands" subject to the CWA after the Supreme Court's ruling in Rapanos v. United States, 547 U.S. 715 (2006). The appeals Court says, "We join the Courts of Appeals for the First and Eighth Circuits in holding, as the District Court here did, that property is 'wetlands' subject to the CWA if it meets either of the tests laid out in Rapanos. We hold, further, that summary judgment was properly granted and will affirm."

 

    A Magistrate Judge concluded that wetlands are covered by the CWA if they meet either of the tests articulated by the Supreme Court in Rapanos. The Magistrate Judge then analyzed the Government's expert reports and noted that they "offered sufficient evidence to support a finding" that the first Rapanos test was met. . . and that they 'adequately show[ed]' that the second Rapanos test was met. . ."

 

    The District Court agreed with the Magistrate Judge that federal authority can be asserted over wetlands that meet either Rapanos test. As to the first Rapanos test (which the Appeals Court refers to as the '"continuous surface connection test" or the "plurality's test"), the District Court concluded that the Government "propounded significant evidence" that the test was met, and that Donovan's declaration failed to create a genuine issue of material fact as to whether the test was satisfied. The District Court was also satisfied that the Government's evidence established that the second Rapanos test (which they referred to as the "significant nexus test" or "Justice Kennedy's test") was met and noted that Donovan had largely relied on arguments by counsel concerning alleged deficiencies with the Government's evidence, but put forth no evidence of his own. The District Court concluded that Donovan failed to come forward with specific facts showing a genuine issue for trial and granted the Government's motion for summary judgment. Finally, the District Court denied Donovan's motion for judgment on the pleadings, holding that the Government pled enough factual matter to plausibly suggest that Donovan's property is subject to the CWA.

 

    The Appeals Court further defines the two tests in Rapanos and says, "As for wetlands, the Justices in the plurality concluded that they only fall within the scope of the CWA if they have 'a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands.'" And, "Under Justice Kennedy's approach, wetlands are subject to the strictures of the CWA if they possess a 'significant nexus' with 'waters of the United States,' meaning that the wetlands, 'either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable.""

 

    In the 4-1-4 Supreme Court decision, the Appeals Court says, "At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices. So which test should apply?. . . Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices -- with their broader view of the CWA's scope -- would nonetheless support a finding of jurisdiction under either the plurality's or Justice Kennedy's test, and that therefore the Corps' jurisdiction should be upheld in all cases in which either test is satisfied."

 

    The Appeals Court said, "In sum, we find that Rapanos establishes two governing standards and Donovan's reliance on pre-Rapanos case law [i.e. Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994)] is misplaced. We hold that federal jurisdiction to regulate wetlands under the CWA exists if the wetlands meet either the plurality's test or Justice Kennedy's test from Rapanos.

 

    The Appeals Court concludes, "The District Court correctly denied Donovan's motion. Donovan contends that the Corps has jurisdiction only over wetlands that are adjacent to navigable-in-fact waters and that the Government's pleadings fail for not alleging that Donovan's wetlands are adjacent to such waters. This argument is premised on a notion that we rejected above: that Rapanos fails to create a governing standard and that, therefore, pre-Rapanos law applies. The Government's complaint need not have pled that Donovan's wetlands are adjacent to navigable-in-fact waters and hence the District Court properly denied Donovan's motion for judgment on the pleadings."

 

    Access the complete opinion (click here). Access the WIMS Special Report on Rapanos (click here). [#Water, #CA3]

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

Town Of Barnstable, MA v. FAA

Oct 28:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

 

    The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

 

    The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

 

    Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

 

    The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

 

    The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

 

    "Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

 

    Access the complete opinion (click here). Access the DOI website for the project for complete background information and extensive documents (click here). [#Energy/Wind, #CADC]

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

Natural Resources Defense Council v. U.S. EPA

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).

 

    The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 555–58. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.

 

    In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."

 

    Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means— . . . "(B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

    The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

    ". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

    In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

    Access the complete opinion (click here). [#Air, #CADC]
GET THE REST OF TODAY'S NEWS (click here)

ASPCA v. Feld Entertainment, Inc

Oct 28: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. The Appeals Court summarizes, "In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals [i.e. American Society for Prevention of Cruelty to Animals (ASPCA)] allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants -- bullhooks and chains -- harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree."

 

    The Appeals Court indicates that the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider (Tom Rider, a barn helper) and API (another plaintiff, Animal Protection Institute) had failed to establish standing. The district court found that Rider was "essentially a paid plaintiff and fact witness" whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. The district court also rejected API's two theories of standing.

 

    Following an exhaustive analysis of standing issues, the Appeals Court indicates, "Because Rider has failed to show that the district court applied an erroneous legal standard, we are left to review the district court's fact-findings and credibility determination for clear error. . . we see no basis for finding clear error." The Appeals Court also rejects claims of "informational standing" [i.e. FEC v. Akins, 524 U.S. 11, 21 (1998)] and "Havens Standing [i.e. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)] and ultimately concludes that, "API and Rider lack Article III standing to maintain this action. We therefore affirm."

 

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

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

State Of Wyoming v. USDA Forest Service

Oct 21: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 08-8061 & 09-8075. Appealed from the United States District Court for the District of Wyoming. Defendants Forest Service and Defendants-Intervenors-Appellants Environmental Groups appeal the Wyoming district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule), which the Forest Service promulgated in 2001. Intervening Environmental Groups include the Biodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

 

    In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act), and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups ask the Appeals Court to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. The Appeals Court indicates that, "Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction."

 

    Plaintiff-Appellee State of Wyoming and Intervenor-Appellee Colorado Mining Association (CMA) request the Appeals Court to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. The Appeals Court indicates that, "In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple-Use Sustained-Yield Act (MUSYA), and also the National Forest Management Act (NFMA).

 

    In a lengthy 120-page opinion, the Appeals Court reversed the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and remanded the case for the district court to vacate the permanent injunction. On the NFMA issue the Appeals Court ruled, ". . .because the Roadless Rule was promulgated under the authority of the Organic Act and MUSYA, and was not otherwise governed by NFMA, the Forest Service was not required to comply with NFMA's provisions.

Wyoming's NFMA claim must therefore fail."

 

    Regarding the permanent injunction remedy the Appeals Court said, "The district court permanently enjoined the Roadless Rule on a nationwide basis. . . Although the district court acknowledged that the issuance of a permanent injunction 'is an extraordinary remedy,' it nevertheless found that a permanent injunction was proper. . . In order to obtain a permanent injunction, a party must prove: '(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.' . . We review a district court's grant of a permanent injunction for an abuse of discretion. . . examining its factual findings for clear error and its legal determinations de novo. . .  As discussed. . .  Wyoming failed to demonstrate that the Forest Service's promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims."

 

    A release from the environmental groups indicates that the "long-awaited, landmark decision" secures "critical legal protections for nearly 50 million acres of pristine National Forest lands" by protecting wild national forests and grasslands from new road building, logging, and development. This decision formally ends an injunction against the Rule's enforcement imposed by a Wyoming federal district court in 2008.

 

    Tim Preso, an Earthjustice attorney representing the conservation groups said, "The  public forests we've fought so hard to protect are now safe. All Americans can now know that a key part of our nation's natural heritage won't be destroyed." The 2001 Roadless Area Conservation Rule was the product of the most comprehensive rulemaking process in the nation's history, including more than 2 million comments from members of the public, hundreds of public hearings and open houses, and a detailed environmental review. The rule came under relentless attack by logging and resource extraction interests, certain states, and the Bush administration."

 

    Mike Francis with The Wilderness Society said, "This is a great victory for the American people who have spoken out, time and again and in record numbers, for protection of these wild public lands." Mary Scurlock of Pacific Rivers Council said, "Roadless areas protect our rivers and streams -- protect our salmon, trout, drinking water. The Roadless Rule is common-sense, and finally the question of its legality is settled."

 

    The groups said, "Now, conservation, faith, and recreation groups trust that the Obama administration will support and enforce the 2001 Roadless Rule as the law of the land, including defending its protections for all 58.5 million acres of roadless lands in the country. That includes national forests in Alaska, currently subject to a separate legal challenge and national forests in Idaho, whose roadless area protections were weakened in 2008." The groups cited candidate President Obama who said: "Road construction in national forests can harm fish and wildlife habitats while polluting local lakes, rivers, and streams. The Roadless Area Conservation Rule -- which was made on the basis of extensive citizen input -- protects 58.5 million acres of national forest from such harmful building. I will be proud to support and defend it."

 

    Access the complete opinion (click here). Access the release from environmental groups (click here). [#Land, #CA10]

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

Neal Parker v. Schmiede Machine & Tool Corporation

Oct 21: In the U.S. Court of Appeals, Eleventh Circuit, Case Nos. 10-14703 & 10-14741. Appealed from the United States District Court for the Northern District of Georgia. In this unpublished opinion the plaintiffs are all current or former employees of the Lockheed Martin Corporation (Lockheed) who worked in its aircraft manufacturing plant in Marietta, Georgia. They have had a variety of different job responsibilities, time periods of employment, and work areas at the Lockheed facility, but they all have worked with and around beryllium-containing products.

 

    According to the Plaintiffs, any action that disturbs the surface layer of beryllium ceramic or metal can produce respirable particles. Sandblasting, polishing, drilling, and other types of high-velocity abrading are especially likely to generate respirable particles. In 1948, the Atomic Energy Commission established an exposure standard for beryllium of 2.0 μg/m³. This exposure standard was adopted by the Occupational Safety and Health Administration (OSHA") and remains in place today. The Plaintiffs assert that even though this remains OSHA's standard, the beryllium manufacturing industry has long known that this standard is

inadequate to keep workers safe from the effects of respirable beryllium.

 

    The Plaintiffs claim that their handling of beryllium or their presence in areas where beryllium was being handled led to three of them contracting chronic beryllium disease (CBD), and nine of them getting beryllium sensitization, a precursor to CBD. The plaintiffs sued Lockheed and various manufacturers of beryllium parts in Georgia state court alleging a number of claims, of which only the failure-to-warn claims remain. The defendants removed the action to the District Court for the Northern District of Georgia.

 

    After a year-and-a-half of extensive discovery, the defendants moved for summary judgment. Although the district court originally denied the defendants' motions for summary judgment, the court later reversed itself and, in September 2010, granted summary judgment on the basis of the "sophisticated user doctrine" and the lack of direct causation. The plaintiffs appealed the rulings.

 

    The Appeals Court agreed with the district court and ruled, ". . . the Plaintiffs have failed to make a showing sufficient to create a genuine issue of fact that the Defendants possessed information regarding a hazard of beryllium and that Lockheed lacked actual knowledge of that hazard. The Plaintiffs have failed with respect to both prongs; the Plaintiffs have failed to show either that Lockheed lacked knowledge of a particular hazard, or that these Defendants did have knowledge of that hazard. The overwhelming evidence in this record shows that Lockheed was a learned and sophisticated user of beryllium, and, if anything, possessed knowledge superior to that of these four Defendants.

 

    After a review of the briefs and the evidence cited by the parties. . . as well as the benefit of oral argument, we conclude that the Plaintiffs have not adduced any evidence that would rebut the Defendants' defense that Lockheed Martin was a learned intermediary and a sophisticated user of beryllium. Accordingly, we affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Toxics, #CA11]

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