Weekly Opinion Summaries

Environmental Law

• Montana v. Wyoming
  Environmental Law, Government & Administrative Law
  U.S. Supreme Court
  
• United States v. Coal. for Buzzards Bay
  Environmental Law, Government & Administrative Law
  U.S. 1st Circuit Court of Appeals
  
• In Re: Application of Chevron
  Environmental Law, International Law, International Trade
  U.S. 3rd Circuit Court of Appeals
  
• NJ Envtl Fed'n v. U.S. Nuclear Regulatory Comm'n,
  Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
  U.S. 3rd Circuit Court of Appeals
  
• Southern Alliance for Clean En v. Duke Energy Carolinas, LLC
  Environmental Law
  U.S. 4th Circuit Court of Appeals
  
• Griffin Indus., Inc. v. U.S. Envtl. Protection Agency
  Environmental Law, Government & Administrative Law
  U.S. 6th Circuit Court of Appeals
  
• Pluck v. BP Oil Pipeline Co.
  Energy, Oil & Gas Law, Environmental Law, Zoning, Planning & Land Use
  U.S. 6th Circuit Court of Appeals
  
• Holt-Orsted v. City of Dickson
  Civil Rights, Environmental Law, Zoning, Planning & Land Use
  U.S. 6th Circuit Court of Appeals
  
• Adkins v. Will
  Environmental Law, Zoning, Planning & Land Use
  U.S. 7th Circuit Court of Appeals
  
• United States v. George A. Whiting Paper Co.
  Environmental Law, Zoning, Planning & Land Use
  U.S. 7th Circuit Court of Appeals
  
• Ursack, Inc., et al v. Sierra Interagency Black Bear, et al
  Consumer Law, Environmental Law, Government & Administrative Law
  U.S. 9th Circuit Court of Appeals
  
• Sierra Forest Legacy, et al. v. Sherman, et al.; People of the State of California v. U.S. Dept. of Agriculture, et al.
  Environmental Law, Government & Administrative Law
  U.S. 9th Circuit Court of Appeals
  
• Fred Gardner, et al v. BLM
  Environmental Law
  U.S. 9th Circuit Court of Appeals
  
• Karuk Tribe of Calif v. USFS, et al
  Environmental Law
  U.S. 9th Circuit Court of Appeals
  
• Pacific Merchant Shipping Asso v. James Goldstene, et al
  Admiralty & Maritime Law, Environmental Law, Government & Administrative Law
  U.S. 9th Circuit Court of Appeals
  
• Natural Resources Defense Coun, et al v. EPA
  Environmental Law
  U.S. 9th Circuit Court of Appeals
  
• SEACC, et al v. State of Alaska, et al
  Environmental Law, Government & Administrative Law, Transportation Law
  U.S. 9th Circuit Court of Appeals
  
• Northwest Env. Def., et al v. Brown, et al
  Environmental Law, Government & Administrative Law
  U.S. 9th Circuit Court of Appeals
  
• Resurrection Bay Conservation, et al v. City of Seward, Alaska
  Environmental Law
  U.S. 9th Circuit Court of Appeals
  
• United States v. Wilgus
  Animal / Dog Law, Criminal Law, Environmental Law
  U.S. 10th Circuit Court of Appeals
  
• Arkansas Game & Fish Comm'n v. United States
  Constitutional Law, Environmental Law
  U.S. Federal Circuit Court of Appeals
  
• San Carlos Apache Tribe v. United States
  Agriculture Law, Environmental Law, Native American Law, Zoning, Planning & Land Use
  U.S. Federal Circuit Court of Appeals
  
• Chamber of Commerce of the US, et al v. EPA
  Environmental Law, Government & Administrative Law
  U.S. D.C. Circuit Court of Appeals
  
• Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co.
  Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
  Arkansas Supreme Court
  
• Collins v. Koppers, Inc.
  Environmental Law, Injury Law
  Mississippi Supreme Court
  

Montana v. Wyoming

Court: U.S. Supreme Court

Judge: Thomas

Areas of Law: Environmental Law, Government & Administrative Law

Montana alleged that Wyoming breached Article V(A) of the Yellowstone River Compact ("Compact"), 65 Stat. 666, by allowing its pre-1950 water appropriators to increase their net water consumption by improving the efficiency of their irrigation systems where the new systems employed sprinklers that reduced the amount of wastewater returned to the river, thus depriving Montana's downstream pre-1950 appropriators of water to which they were entitled. At issue was whether Article V(A) allowed Wyoming's pre-1950's water users, diverting the same quantity of water for the same irrigation purpose and acreage as before 1950, to increase their consumption of water by improving their irrigation systems even if it reduced the flow of water to Montana's pre-1950 users. The Court held that Montana's increased-efficiency allegation failed to state a claim for breach of the Compact under Article V(A) where Article V(A) incorporated the ordinary doctrine of appropriation without significant qualification and where, in Wyoming and Montana, that doctrine allowed appropriators to improve their irrigation systems, even to the detriment of downstream appropriators.

http://j.st/JJ3

United States v. Coal. for Buzzards Bay

Court: U.S. 1st Circuit Court of Appeals

Judge: Selya

Areas of Law: Environmental Law, Government & Administrative Law

After a 2003 oil spill, Massachusetts enacted an Oil Spill Prevention Act (MOSPA), which the federal government challenged as preempted by the Ports and Waterways Safety Act (33 U.S.C. 1221-1232 and parts of 46 U.S.C.) and Coast Guard regulations. While the case was pending on remand, the Coast Guard enacted a regulation pertaining to navigation on Buzzards Bay, which is claimed to expressly preempt MOSPA. The district court entered an injunction prohibiting enforcement of certain provisions of MOSPA. The First Circuit again reversed and remanded. The Coast Guard's reliance on a categorical exclusion and failure to prepare an environmental assessment or environmental impact statement violated the National Environmental Policy Act, 42 U.S.C. 4332; its finding that the rule was not likely to be highly controversial was arbitrary. The error was not harmless. Because the rule is invalid, the court did not address preemption.

http://j.st/Jhg

In Re: Application of Chevron

Court: U.S. 3rd Circuit Court of Appeals

Judge: Greenberg

Areas of Law: Environmental Law, International Law, International Trade

After first filing claims in a U.S. district court, inhabitants of eastern Ecuador filed suit in their country, alleging that the company contaminated the area and caused residents' health problems. The company, attempting to establish fraud and collusion in the proceedings, sought discovery from the plaintiffs' attorney for use in that litigation, in criminal proceedings in Ecuador, and in arbitration initiated against the Republic of Ecuador with the United Nations. The district court granted discovery under 28 U.S.C. 1782, which provides that the court of the district in which a person is found may order him to give testimony or to produce a document or thing for use in a proceeding in a foreign tribunal, unless the disclosure would violate a legal privilege. The court concluded that attorney-client privilege had been waived because documentary film-makers had been allowed intimate access to proceedings involving the environmental litigation. The Third Circuit reversed in part, holding that the public disclosure of certain communications did not lead to "subject matter waiver" of attorney-client privilege for communications that were covered by the privilege. The court remanded for consideration of whether certain communications are discoverable pursuant to the crime-fraud exception to the attorney-client privilege.

http://j.st/3G8

NJ Envtl Fed'n v. U.S. Nuclear Regulatory Comm'n,

Court: U.S. 3rd Circuit Court of Appeals

Judge: Fisher

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Oyster Creek in Ocean County, New Jersey was licensed under the Atomic Energy Act, 42 U.S.C. 2133(c) in 1969 for a 40-year term and is the oldest operating commercial nuclear power plant in the country. Objectors claimed that the application for license renewal was deficient with respect to detection of corrosion in a safety structure. The Atomic Safety and Licensing Board rejected the claims; the Nuclear Regulatory Commission granted the license. After examining the objectors' specific technical claims, the Third Circuit denied review. The Board and the NRC provided hundreds of pages detailing their decision-making and gave due consideration to objectors' concerns; the review was well-reasoned and within the realm of the agency's unique expertise.

http://j.st/J87

Southern Alliance for Clean En v. Duke Energy Carolinas, LLC

Court: U.S. 4th Circuit Court of Appeals

Areas of Law: Environmental Law

Plaintiffs filed a complaint against defendant alleging that defendant was violating the Clean Air Act ("Act") by constructing a coal-fired power plant without a determination that the power plant would achieve a level of air pollution control that satisfied the Act's Maximum Achievable Control Technology provisions. At issue was whether the district court erred in awarding attorneys' fees to plaintiffs based on the merits of an order that granted summary judgment in favor of plaintiffs. The court held that attorneys' fees were properly awarded based on plaintiffs' success in the litigation where defendant was subject to state administrative proceedings as a consequence of plaintiffs' suit. The court also held that defendant's merits argument was irrelevant to the court's determination where plaintiffs achieved success supporting the fee award.

http://j.st/oMf

Griffin Indus., Inc. v. U.S. Envtl. Protection Agency

Court: U.S. 6th Circuit Court of Appeals

Judge: McKEAGUE

Areas of Law: Environmental Law, Government & Administrative Law

The Georgia animal-rendering operation was investigated under the Clean Water Act. Felony charges were dismissed and the company entered a plea of guilty to misdemeanor negligent discharge of waste water. The EPA subsequently received FOIA requests from outside parties, requesting documents it had obtained from the company. The EPA determined that documents obtained pursuant to search warrant or grand jury subpoena were exempt from disclosure, that other material had to be reviewed to determine whether exemptions applied, and that documents obtained from court dockets and state agencies are publicly available and not exempt from disclosure. The company sought a temporary restraining order, claiming that it was entitled to review the files before release of any information, and that confidential business information contained in the publicly available documents is exempt from disclosure. After three years, the district court ruled in favor of the company and awarded $116,038 in attorney fees. The Sixth Circuit reversed because the district court did not make a finding, and the record would not support a finding, of bad faith, necessary to support the award under the Equal Access to Justice Act, 28 U.S.C. 2412.

http://j.st/JPd

Pluck v. BP Oil Pipeline Co.

Court: U.S. 6th Circuit Court of Appeals

Judge: GIBBONS

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Zoning, Planning & Land Use

An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.

http://j.st/JPp

Holt-Orsted v. City of Dickson

Court: U.S. 6th Circuit Court of Appeals

Judge: Griffin

Areas of Law: Civil Rights, Environmental Law, Zoning, Planning & Land Use

African-Americans residing near a contaminated landfill claim that municipalities knew that well water was contaminated, warned Caucasian families and provided alternate sources of water, but did not warn African-Americans. In their suit under the Equal Protection Clause, 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and state laws, a magistrate compelled testimony by plaintiffs' former counsel; the city asserted that, if plaintiffs consulted the attorney in 2000, the action is barred by the one-year statute of limitations. During a deposition, the attorney refused to answer some questions. The court granted a motion to compel. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Plaintiffs were not appealing a final judgment and did not qualify for interlocutory review under the Perlman exception or the collateral order doctrine. Immediate review is appropriate if an order conclusively determines a disputed issue separate from the merits that is too important to be denied review and will be effectively unreviewable on appeal from a final judgment. Privilege is important and the attorney is a disinterested non-party, so the contempt-citation avenue of review is practically foreclosed, but plaintiffs, asserting the privilege, ultimately can avail themselves of a post-judgment appeal that suffices to protect the rights of the litigants and preserve the vitality of attorney-client privilege.

http://j.st/333

Adkins v. Will

Court: U.S. 7th Circuit Court of Appeals

Judge: HAMILTON

Areas of Law: Environmental Law, Zoning, Planning & Land Use

The Indiana Department of Environmental Management (IDEM) ordered the company to remedy certain conditions at its solid waste dump in Goshen; the company moved the operation to Elkhart. Following complaints, IDEM found violations and entered into an agreement with the company. The company did not honor the agreement and IDEM filed suit. After their attempt to intervene in the state court suit was limited, residents filed suit under the Resource Recovery and Conservation Act (RCRA, 42 U.S.C. 6901), specifically differentiating their claims from those in the state suit. IDEM subsequently filed a second state suit. The district court dismissed. The Seventh Circuit reversed and remanded, holding that, excepting violation claims concerning “C” grade waste that were part of the first IDEM lawsuit, the plaintiffs met the requirements of RCRA for bringing a citizen suit, so abstention should not apply to deny them a right created by Congress. While a citizens' violation action may not “be commenced” if the EPA or state agency “has commenced and is diligently prosecuting a civil or criminal action,” the citizens' suit went beyond the scope of the first IDEM suit. The RCRA suit complements and does not conflict with state efforts.

http://j.st/J5m

United States v. George A. Whiting Paper Co.

Court: U.S. 7th Circuit Court of Appeals

Judge: KANNE

Areas of Law: Environmental Law, Zoning, Planning & Land Use

As part of the cleanup of PCBs in Wisconsin's Fox River, the EPA filed suit against de minimus potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601). The district court approved a settlement and other PRPs appealed. The Seventh Circuit affirmed, holding that the government's estimate of fault was supported by the record and accounted for all sources of PCB discharge. The district court properly approved the settlement before making a divisibility determination.

http://j.st/JSe

Ursack, Inc., et al v. Sierra Interagency Black Bear, et al

Court: U.S. 9th Circuit Court of Appeals

Judge: Adelman

Areas of Law: Consumer Law, Environmental Law, Government & Administrative Law

Plaintiffs, manufactures of a bear-resistant container called the Ursack S29 model and three individual users of the Ursack, sued the Sierra Interagency Black Bear Group ("SIBBG"), as well as national and forest park services (collectively, "defendants"), where defendants withdrew conditional approval of the S29 model and refused to permit backpackers to use the S29 in the container-only areas of defendants' national parks and forests. At issue was whether SIBBG's decision to revoke conditional approval of the S29 model was arbitrary and capricious. The court held that SIBBG's decision to revoke conditional approval of the S29 model was not arbitrary or capricious where the court could not conclude that the SIBBG, although it did not mention overflow food problems in the course of its debate, ignored this aspect of the problem; where the distinctions the SIBBG made between the BearVault and the Ursack were rational; and where SIBBG's tree-damage rationale, prohibiting users from tying the S29 model to trees, was not arbitrary or capricious.

http://j.st/JYn

Sierra Forest Legacy, et al. v. Sherman, et al.; People of the State of California v. U.S. Dept. of Agriculture, et al.

Court: U.S. 9th Circuit Court of Appeals

Judge: Per curiam

Areas of Law: Environmental Law, Government & Administrative Law

Sierra Forest Legacy and other organizations (collectively, "Sierra Forest") appealed a largely unfavorable summary judgment against them and a favorable but limited remedial order in their National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., and National Forest Management Act ("NFMA"), 16 U.S.C. 1600 et seq., suit challenging the 2004 Sierra Nevada Forest Plan Amendment ("2004 Framework") and the Basin Project, a timber harvesting project approved under the 2004 Framework. The State of California ("California") also appealed a summary judgment against it and a limited remedial order in a related NEPA action. At issue was whether the process of establishing management guidelines governing 11.5 acres of federal land in the Sierra Nevada region complied with both the procedural requirements of NEPA and the substantive restrictions of NFMA. The court affirmed the district court's decision on the merits of Sierra Forest and California's NEPA claim and held that Sierra Forest and California had standing to assert a facial NEPA claim against the 2004 Framework but that the 2004 Framework supplemental environmental impact statement ("SEIS") adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. The court also held that the Forest Service did not violate NEPA when approving the Basin Project because the U.S. Forest Service and related federal defendants (collectively, "Federal Service") adequately addressed cumulative impacts of the proposed management act. The court further held that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS to reflect new modeling techniques used in the 2004 Framework SEIS. However, the court vacated the district court's orders granting a limited remedy and remanded for reconsideration of the equities of a "substantive" injunction without giving undue deference to government experts. The court remanded also because it reversed the district court's decision on Sierra Forests' NFMA claims.

http://j.st/3R5

Fred Gardner, et al v. BLM

Court: U.S. 9th Circuit Court of Appeals

Areas of Law: Environmental Law

Plaintiffs brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure Act seeking to compel defendant to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. At issue was whether defendant's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976, 43 U.S.C. 1701-1785, and 43 C.F.R. 8340-8342. The court held that defendant did not, and was not required to, make a finding that the off-road vehicle use of which plaintiff complained had caused "considerable adverse effects" on the resources enumerated in 43 C.F.R. 8341.2(a) and therefore, the court could not compel defendant to close Little Canyon Mountain to off-road vehicle use. The court also held that defendant's denial of plaintiff's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious.

http://j.st/oNW

Karuk Tribe of Calif v. USFS, et al

Court: U.S. 9th Circuit Court of Appeals

Areas of Law: Environmental Law

Plaintiffs appealed a denial of summary judgment in a suit involving suction dredge mining activity conducted by defendants-intervenors, the New 49'ers, in the Klamath River. At issue was whether a United States Forest Service District Ranger's ("Ranger") decision, that a proposed mining operation may proceed according to the miner's Notice of Intent ("NOI") and would not require a Plan of Operations ("Plan"), was an agency action for purposes of triggering the Endangered Species Act's ("ESA") interagency consulting obligations. The court held that the NOI process did not constitute an agency action under the ESA where the Ranger's receipt of an NOI and resulting decision not to require a Plan was best described as an agency decision not to act and where "inaction was not action for section 7(a)(2) purposes."

http://j.st/oNs

Pacific Merchant Shipping Asso v. James Goldstene, et al

Court: U.S. 9th Circuit Court of Appeals

Areas of Law: Admiralty & Maritime Law, Environmental Law, Government & Administrative Law

Plaintiff sued defendant, the Executive Officer of the California Air Resources Board ("CARB"), alleging that California's Vessel Fuel Rules ("VFR")violated federal statutory and constitutional grounds. At issue was whether the VFR was preempted by the Submerged Lands Act and whether the VFR was preempted by the Commerce Clause and Supremacy Clause. The court held that summary judgment in favor of the plaintiff was properly denied where plaintiff failed to demonstrate that the VFR was "otherwise 'unlawful and impermissibly regulate navigation and foreign and domestic commerce as delegated to the United States Congress'" under the Submerged Lands Act. The court also held that summary judgment in favor of the plaintiff was properly denied where the Commerce Clause or general maritime law should be used to bar a state from exercising its own police powers when such powers were used to combat severe environmental problems.

http://j.st/owh

Natural Resources Defense Coun, et al v. EPA

Court: U.S. 9th Circuit Court of Appeals

Areas of Law: Environmental Law

Plaintiffs filed a petition of review related to the Environmental Protection Agency's ("EPA")overall approval process of California's state implementation plan which contained limits on motor vehicle emissions for the years 2009 and 2012. At issue was whether the EPA's decision was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law where the EPA's final determination was that the baseline budgets were "adequate" for transportation conformity purposes. The court denied the petition and held that the EPA's reading of its own regulations, which did not require an appropriate attainment demonstration, was reliable and therefore, did not compel an alternative reading to the EPA's interpretation.

http://j.st/owP

SEACC, et al v. State of Alaska, et al

Court: U.S. 9th Circuit Court of Appeals

Judge: Schroeder

Areas of Law: Environmental Law, Government & Administrative Law, Transportation Law

Intervenor State of Alaska appealed the district court's judgment in favor of Southeast Alaska Conservatory Council and five other groups (collectively, "SEACC") in their suit against the Federal Highway Administration ("FHWA") and other defendants arising from the initiation of the Juneau Access Improvements Project ("Project") to improve surface access between Juneau and the communities of Haines and Skagway in the Lynn Canal corridor of Southeast Alaska. At issue was whether the district court properly ordered the State to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. The court held that the district court properly concluded that it was arbitrary for the FHWA to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elswhere when the chosen project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the Environmental Impact Statement issued by the FHWA violated the National Environmental Policy Act ("NEPA"), 40 C.F.R. 1502.14(a).

http://j.st/JTK

Northwest Env. Def., et al v. Brown, et al

Court: U.S. 9th Circuit Court of Appeals

Judge: William A. Fletcher

Areas of Law: Environmental Law, Government & Administrative Law

Plaintiff, an Oregon non-profit organization, sued defendants under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. 1365(a), alleging that defendants violated the CWA and its implementing regulations by not obtaining permits from the Environmental Protection Agency ("EPA") for stormwater, largely rainwater, runoff that flowed from logging roads into systems of ditches, culverts, and channels and was then discharged into forest streams and rivers. At issue was whether plaintiff's complaint was properly dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The court reversed the district court's dismissal and held that stormwater runoff from logging roads that was collected by and then discharged from a system of ditches, culverts, and channels was a point source discharge for which a National Pollutant Discharge Elimination System permit was required.

http://j.st/J7n

Resurrection Bay Conservation, et al v. City of Seward, Alaska

Court: U.S. 9th Circuit Court of Appeals

Judge: Alarcon

Areas of Law: Environmental Law

Plaintiffs filed a citizen enforcement suit alleging that defendant was discharging toxic pollutants from the Seward Small Boat Harbor and a boat repair yard. At issue was whether the district court abused its discretion in denying an award of attorney fees to plaintiffs pursuant to section 505(d) of the Clean Water Act ("CWA"), 33 U.S.C. 1365(d). The court held that the district court abused its discretion in concluding that special circumstances supported its denial of an award of attorney fees. Accordingly, the court vacated the district court's judgment and remanded with instructions to award plaintiffs' fees and costs that were reasonably incurred in furtherance of the CWA's purpose.

http://j.st/J2N

United States v. Wilgus

Court: U.S. 10th Circuit Court of Appeals

Areas of Law: Animal / Dog Law, Criminal Law, Environmental Law

Wilgus was arrested for violating the Bald and Golden Eagle Protection Act, 16 U.S.C. 668, which prohibits possession of eagle feathers, but excepts possession for religious purposes of Indian tribes. Wilgus is a follower of a Native American faith and blood-brother to a Paiute, but not a member of a recognized tribe, nor is he Indian by birth. He received at least one feather for religious purposes. Following a remand, the district court held that application of the Eagle Act to Wilgus would violate the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (RFRA), which prohibits government from substantially burdening religious freedom, except to forward a compelling governmental interest via the least restrictive means. The Tenth Circuit reversed. The government has competing compelling interests in protecting eagles and in preserving Native American religion and culture. The RFRA exception is intended to protect the religion and culture of tribes, not individual practitioners. Tribes are quasi-sovereign political entities; protection of faith practices among the general public might violate the Establishment Clause. The government need not refute every option to satisfy the least restrictive means prong of RFRA; the RFRA exception balances the competing interests. Proposed alternatives, involving creation of a feather repository, opening permits to all sincere adherents to Native American religion, or allowing Native Americans to gift feathers, would either be impractical or have a negative impact on governmental goals.

http://j.st/ow9

Arkansas Game & Fish Comm'n v. United States

Court: U.S. Federal Circuit Court of Appeals

Areas of Law: Constitutional Law, Environmental Law

Beginning in 1993 the U.S. Army Corps of Engineers implemented temporary deviations from its 1953 Water Control Manual in operating the Clearwater Dam, to protect agricultural and other uses. Efforts to update the Manual were eventually abandoned. The state sought compensation for "taking" of its flowage easement based on flooding of the 23,000-acre Black River Wildlife Management Area, which resulted in excessive timber mortality. The Court of Claims awarded more than $5.5 million in damages. The Federal Circuit reversed, reasoning that temporary flooding, which is not "inevitably recurring," does not amount to a taking, but, at most, created tort liability.

http://j.st/oiQ

San Carlos Apache Tribe v. United States

Court: U.S. Federal Circuit Court of Appeals

Judge: Lourie

Areas of Law: Agriculture Law, Environmental Law, Native American Law, Zoning, Planning & Land Use

A 1935 settlement gives the tribe specific irrigation rights in the Gila River. The government filed another water rights claim on behalf of the tribe in 1979, resulting in a 2006 Arizona Supreme Court decree that the 1935 decree resolved all of the tribe's rights under all theories and that federal court was the proper forum for interpretation and enforcement of that decree. The Court of Federal Claims dismissed a claim against the United States for failure to secure and protect the tribe's water rights. The Federal Circuit affirmed, finding the claim barred by the six-year limitations period in 28 U.S.C. 2501. Rejecting an argument that the tribe was not on notice of its harm until the 2006 decision, the court stated that the plain terms of the 1935 decree indicated that the tribe would have no further rights and that the government was representing multiple parties.

http://j.st/ouA

Chamber of Commerce of the US, et al v. EPA

Court: U.S. D.C. Circuit Court of Appeals

Judge: Garland

Areas of Law: Environmental Law, Government & Administrative Law

The Chamber of Commerce and the National Automobile Dealers Association petitioned for review of a decision by the Environmental Protection Agency ("EPA") granting California a waiver from federal preemption under the Clean Air Act ("CAA"), 42 U.S.C. 7543(a). At issue was whether Article III of the Constitution granted the court jurisdiction to decide the case. The court dismissed the petition for review without reaching its merits and held that even if the EPA's decision to grant California a waiver for its emissions standards once posed an imminent threat of injury to petitioners, the agency's subsequent adoption of federal standards eliminated any independent threat that may have existed.

http://j.st/oFC

Hempstead Cnty. Hunting Club, Inc. v. Sw. Elec. Power Co.

Court: Arkansas Supreme Court

Judge: Baker

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law

Three questions of law were certified to the Supreme Court from the federal district court. The certified questions arose from a complaint from Petitioner Hempstead County Hunting Club, Inc. (Hempstead). Hempstead contended that Respondent Southwestern Electric Power Company (SWEPCO) violated multiple public utilities statutes in the construction of its "Turk Plant." The first question from the federal court involved whether Hempstead was required to bring its claims before the state Public Service Commission (PSC) before suing in federal court. The Supreme Court concluded that under Arkansas law, Hempstead was first required to bring its claims before the Arkansas PSC. A court review of its claims should be precluded until Hempstead exhausted its administrative remedies. As a result, the Supreme Court did not address the remaining two certified questions.

http://j.st/3RL

Collins v. Koppers, Inc.

Court: Mississippi Supreme Court

Judge: Lamar

Areas of Law: Environmental Law, Injury Law

Appellant Shirley Collins filed suit against Appellees-Defendants Koppers, Inc. and several others, alleging she was injured as a result of environmental contamination caused by a wood-treatment facility. The Defendants filed a motion to dismiss after Collins repeatedly failed to comply with a court order to provide expert opinions that causally linked her injuries to the alleged contamination. The trial court granted the Defendants’ motion to dismiss and awarded them attorney’s fees. On appeal, Appellant argued that the trial court abused its discretion when it did not grant her enough time to respond to Defendants’ discovery requests. “It is obvious that the trial judge exercised considerable patience and restraint in dealing with the delays caused by [Appellant’s] counsel. The record is replete with examples of instances of the failure of [Appellant’s] counsel to abide by the orders of the trial court.” Finding no abuse of discretion, the Supreme Court affirmed the trial court’s ruling.

http://j.st/J3g