Textileather Corporation v. GenCorp Inc.

Sep 11: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3634. Appealed from the Northern District of Ohio at Toledo. Textileather Corporation, which purchased a vinyl manufacturing facility with hazardous waste management units (RCRA units) from GenCorp Inc., appeals from the district court's grant of summary judgment to GenCorp in this breach-of-contract and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) action. The Appeals Court affirmed in part, reversed in part and remanded the case to the district court for further proceedings consistent with its opinion.

 

    In 2001, Ohio EPA (OEPA) approved a closure plan submitted by Textileather. In its letter regarding the approved closure plan, OEPA noted that compliance with this approved plan was expected and would be monitored. Textileather appealed portions of the approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and reversed in part with instructions to OEPA to approve a plan consistent with its holding. OEPA has not yet issued a new plan. Throughout the course of the RCRA closure proceedings, including the negotiation of various plans and appeal of the approved plan, Textileather notified GenCorp that it believed, pursuant to the Asset Purchase Agreement (APA), GenCorp was obligated to indemnify and defend Textileather in these proceedings.

 

    Textileather brought the action to recover the costs it incurred in the RCRA closure proceedings. Textileather and GenCorp filed cross-motions for summary judgment, and the district court granted GenCorp's motion and denied Textileather's motion. In particular, the district court held the APA to be unambiguous and determined that, under the terms of the APA, OEPA did not constitute a "third party" and Textileather's RCRA closure proceedings with OEPA did not constitute a "claim or action."

    The Appeals Court ruled that, "OEPA was not a party to the APA, so it fairly falls under the common meaning of 'third person. . . we reverse the district court's decision granting summary judgment to GenCorp and instruct the district court to enter summary judgment in favor of Textileather on the legal question of whether the retained liabilities section applies. We remand this case to the district court for proceedings to determine the appropriate allocation of costs and damages under the terms of that provision. . . the district court properly concluded that the allocation and assumption of liability provisions apply to CERCLA claims as well. GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2."

    Access the complete opinion (click here). [#Haz, #Remed, #CA6]

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Pacific Coast Federation v. Blank (Commerce Dept.)

Sep 10: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17108. Appealed from the United States District Court for the Northern District of California. The Appeals Court explains that in 2011, the National Marine Fisheries Service (NMFS) and the Pacific Fishery Management Council (Pacific Council or Council) adopted changes to the fishery management plan for the trawl sector of the Pacific Coast groundfish fishery. The changes, adopted as Amendments 20 and 21 to the PacificCoast Groundfish Fishery Management Plan, are designed to increase economic efficiency through fleet consolidation, reduce environmental impacts, and simplify future decisionmaking.

 

    Plaintiffs-Appellants Pacific Coast Federation of Fishermen's Associations, et al. (plaintiffs) are a collection of primarily non-trawl fishermen's associations and groups whose longtime participation in the fishery may shrink under Amendments 20 and 21. They argue that the Amendments are unlawful under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which imposes procedural and substantive requirements for managing fisheries, and the National Environmental Policy Act (NEPA), which imposes purely procedural requirements for reviewing the potential environmental effects of proposed agency actions.

 

    The district court granted summary judgment to the defendants. The Appeals Court affirmed the district court decision and said, "NMFS complied with the MSA's provisions, which required the agency to consider fishing communities but did not require it to develop criteria for allocating fishing privileges to such communities or to restrict privileges to those who 'substantially participate' in

the fishery. NMFS also complied with NEPA by preparing a separate study for each amendment, analyzing a reasonable range of alternatives, adequately evaluating potential environmental effects, and adopting flexible mitigation measures designed, in part, to lessen the potential adverse effects of Amendments 20 and 21 on fishing communities. The plaintiffs reasonably disagree with the balance NMFS struck between competing objectives, but they do not show that NMFS exceeded its statutory authority under the MSA or ignored its obligations under NEPA."

 

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

 

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Colorado Department Of Public Health v. United States

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-1554. Appealed from the United States District Court for the District of Colorado. The Appeals Court explains that since the 1950s, the United States has stored chemical weapons at the Army's weapons depot located near Pueblo, Colorado (Depot). Congress has now mandated that the Army destroy those weapons by 2017. Separately, Congress authorized the State of Colorado to regulate hazardous waste in that State. Invoking that regulatory authority, Plaintiff-Appellant Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (Colorado or CDPHE), has declared the chemical weapons stored at the Depot awaiting destruction to be hazardous waste. In this action, Colorado seeks to enforce against the Depot Colorado's regulation prohibiting storage of any hazardous waste.

 

    The Appeals Court said, "The specific question presented by this appeal is whether Congress's mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado's enforcement against the Depot of its regulation prohibiting storage of any hazardous waste. This case thus lies at the intersection of congressional mandates that, under these circumstances, support opposing positions. Based on the fact that Congress 1) delegated to Colorado the authority to regulate hazardous waste, so long as the State's regulations are at least as stringent as federal hazardous waste regulations, and 2) required federal agencies to follow such state hazardous waste regulation, Colorado argues that the United States, in operating the Depot, must comply with the State's prohibition against storing hazardous waste. Based instead on the fact that Congress mandated that the Army destroy the chemical weapons at the Depot and gave the Army until 2017 to complete their destruction, the United States argues it cannot comply with Colorado's regulation prohibiting the storage of any hazardous waste."

 

    The Appeals Court continued and concluded, "This difficult case requires us, then, to choose between opposing congressional mandates. Ultimately we are persuaded by the detailed manner with which Congress has addressed and mandated the destruction of the chemical weapons stored at the Depot to conclude that that federal law preempts Colorado's attempt to regulate that destruction process by enforcing its prohibition of the storage of hazardous waste against the Depot. Therefore, having jurisdiction under 28 U.S.C. § 1291, we affirm the district court's decision to dismiss Colorado's claims against the United States. . . we conclude that 50 U.S.C. §§ 1512a and 1521 preempt Colorado's application of its prohibition against the storage of any hazardous waste restricted from land disposal against the United States' storage of chemical weapons at the Depot."

 

    Access the complete opinion and dissent (click here). [#Haz, #CA10]

 

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Impact Energy Resources, LLC v. Salazar

Sep 5: In the U.S. Court of Appeals, Tenth Circuit, Case Nos. 11-4043 & 11-4057. Appealed from the United States District Court for the District of Utah. Appellants in this case are companies that submitted high bids on certain oil and gas leases at a Bureau of Land Management (BLM) auction (collectively, the Energy Companies). After the auction but before the leases were issued, newly appointed Secretary of the Interior Ken Salazar decided not to lease the parcels at issue. Salazar announced his decision at a February 4, 2009, press conference and memorialized his determination in a February 6 memorandum to the BLM's Utah State Director. On February 12, 2009, a subordinate BLM official mailed letters to the high bidders indicating that the leases would not be issued.

 

    Exactly ninety days later (following February 12), the Energy Companies filed suit challenging the Secretary's authority to withdraw the leases. The district court dismissed their suit as time-barred under the Mineral Leasing Act (MLA), which provides that "[n]o action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced or taken within ninety days after the final decision of the Secretary relating to such matter." 30 U.S.C. § 226-2.

 

    The Appeals Court explains that, "A majority of the panel agrees with the district court that the Secretary's final decision in this matter occurred no later than February 6, and thus, the suit is time-barred. As explained in their separate concurrences, however, the panel majority would employ somewhat differing analyses in reaching this result. Judge Lucero would hold that under the plain text of the MLA, the Secretary's decision was final on February 6 regardless of whether plaintiffs' claims under the Administrative Procedure Act (APA) had accrued at that time. Judge Seymour would hold that the word "final" bears the same meaning in the phrase 'final decision of the Secretary,' 30 U.S.C. § 226-2, as it does in the phrase 'final agency action' under the APA, 5 U.S.C. § 704, and that final agency action occurred no later than February 6. Judge Tymkovich agrees with Judge Seymour's conclusion that final agency action is necessary, but disagrees with the majority's conclusion that the suit is time-barred as explained in his dissent.

 

    "The panel majority also agrees with the district court that the Energy Companies are not entitled to equitable tolling in this matter. The BLM notified the high bidders just six days after the Secretary made his decision. And the government notified the Energy Companies of its position that February 6 was the operative date during agency proceedings. Although the Energy Companies had time to prepare their claims before the limitations period expired, they gambled that a court would accept their proffered limitations theory. Equitable tolling is not required under these circumstances. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm."

 

    In a strong dissent, Justice Tymkovich said, "The majority's decision today is a recipe for uncertainty, unfairness, and inefficiency in the administrative process. As one of our circuits facing a similar issue recently said: 'If we considered agency statements lacking clear indicia of finality to nonetheless be final agency action, subjects of agency regulation would be forced to file repeated precautionary petitions for review. Such petitions would waste the time and resources of the Court and of the parties, and would promote unfairness by allowing an agency to retroactively determine whether a particular statement was final or not. Considerations such as these have long been an integral part of finality determinations.' Am. Airlines, Inc. v. Transp. Sec. Admin., 665 F.3d 170, 174 (D.C. Cir. 2011).

 

    "Such problems are amplified, of course, when the document at issue is an undisclosed memorandum. To the list above we may add intrusive disclosure requests of internal agency documents. Surely Congress did not intend the result the per curiam opinion reaches today, and the text of the MLA does not command such an outcome -- a result at odds with well established principles of statutory construction, applicable case law, and an orderly process of judicial review of administrative action."

 

    Access the complete opinion and dissent (click here). [#Energy/OilGas, #CA10]

 

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Scott Timber Co. v. United States

Sep 5: In the U.S. Court of Appeals, Federal Circuit, Case No. 2011-5092. Appealed from the United States Court of Federal Claims. The United States appeals from a judgment of the Court of Federal Claims (Claims Court) finding that the government breached three timber-harvesting contracts and awarding damages to Scott Timber Company (Scott). See Scott Timber Co. v. United States (Damages Decision), 97 Fed. Cl. 685 (2011); Scott Timber Co. v. United States (Liability Decision), 86 Fed. Cl. 102 (2009). The Appeals Court reversed the Claims Court.

 

    The Appeals Court explains that this is another in a series of cases involving allegations that the government breached contracts for the sale of timber on public lands. Timber-harvesting contracts, such as those at issue here, allow the contract holder to cut and remove a specified volume of timber from designated Federally-owned lands during a designated period of time. Because of the risk posed by potential environmental litigation, and by litigation against the government for the resulting delays, the government included provisions in the timber-harvesting contracts involved here authorizing the Forest Service to suspend the awarded contracts in order to comply, for example, with a court order enjoining harvesting on the involved lands.

 

    In this case, at the time of the award, Oregon Natural Resources Council Action (Oregon Natural) had brought suit against the government claiming that the Forest Service had violated the Northwest Forest Plan adopted in 1994, and hence had violated applicable statutes, by authorizing timber sales without first conducting surveys for certain species of wildlife. Oregon Natural Res. Council Action v. U.S. Forest Serv., 59 F. Supp. 2d 1085, 1087 (W.D. Wash. 1999).

 

    The Claims Court found the government liable for breaching each of the contracts and first concluded that the Forest Service's award of the three contracts without informing Scott of the risks to those contracts posed by the litigation; "unreasonably delayed" completing the surveys of timber areas which "unduly lengthened" the contract suspension periods"; and further delayed because of another lawsuit in which no injunction was ever issued.

 

    The majority Appeals Court found that, "Scott has not established that any delay in performance of the Pigout, Jigsaw, and Whitebird contracts resulted in lost profits. . . [and] "Scott is thus precluded from recovering damages on a theory of material breach, including the $129,599 in claimed re-placement costs. For these reasons, we reverse the judgment of the Claims Court."

 

    The dissenting Justice indicates, "The court errs when it finds Scott I and Precision Pine reconcilable and Scott I inapplicable in this case. See Majority Op. at 15-18. These cases are irreconcilable, and therefore this court should take the case en banc to re-solve the conflict the two cases present or the panel should hold that Scott I is the earlier, and therefore precedential, decision over Precision Pine. [Interested parties should review the case for details regarding the referenced cases.]

 

    Access the complete opinion and dissent (click here).  [#Land, #CAFed]

 

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Los Alamos Study Group v. Department of Energy

Aug 27: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-2141. Appealed from the U.S. District Court from the District of New Mexico. On August 16, 2010, Plaintiff Los Alamos Study Group filed a complaint for declaratory and injunctive relief under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Defendants were the National Nuclear Security Administration (NNSA), the United States Department of Energy (DOE), NNSA's administrator, and the DOE secretary.

 

    The complaint alleged that the design proposed for construction of a Chemistry and Metallurgy Research Replacement Nuclear Facility (the Nuclear Facility) at the Los Alamos National Laboratory (the Laboratory) had changed so much since the original environmental analysis in 2003 that a new analysis was required and that all work on the facility should be halted until the conclusion of such analysis.

 

    The district court dismissed the claims on two grounds: (1) that they were prudentially moot because Defendants began an environmental analysis after the complaint was filed and committed to refraining from all construction on the Nuclear Facility until the analysis was complete; and (2) that the case was not yet ripe because there had been no final agency action. The Appeals Court ruled, "We agree with the district court on the ripeness issue. We therefore need not address prudential mootness."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CA10]

 

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Reino De España v. American Bureau Of Shipping

Aug 29: In the U.S. Court of Appeals, Second Circuit, Case No. 10-3518. Appealed from the United States District Court for the Southern District of New York. The case involves a November 2002, spill from the oil tanker Prestige which sank off the northwestern coast of Spain, releasing large quantities of oil into the ocean. Reino de España (Spain or Plaintiff) alleges that the oil, on washing up on the Spanish coastline, caused serious environmental and economic damage to Spain and its citizens. Spain, in reaction to the alleged effects of this marine casualty, brought suit against American Bureau of Shipping (ABS) and its subsidiaries (collectively, Defendants). ABS is a classification society -- an organization that, as relevant to the present appeal, is contracted by ship owners regularly to survey their vessels for compliance with ABS's requirements on structural soundness.

 

    The district court ruled that Defendants were entitled to summary judgment because, in the circumstances presented, ABS and its subsidiaries, did not owe Reino de España a duty in tort in connection with ABS's inspection of the tanker Prestige. Without reaching that issue, the Appeals Court concluded that ". . .even if such a duty were owed, Plaintiff did not introduce evidence

sufficient to create a genuine dispute of material fact as to whether Defendants recklessly breached that duty. . ." and affirmed the decision of the district court.

 

    Access the complete opinion (click here). [#Haz/OilSpill, #CA2]

 

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