May 302013

The D.C. Circuit has dismissed an appeal from Sunflower Electric Corp. involving expansion plans at its Holcomb, Kansas, power plant Sierra Club v. Department of Agriculture, 12-5095 (5/28/13).

U.S. District Judge Emmet G. Sullivan had granted limited relief to Sierra Club in his Jan. 31, 2012, opinion, not putting a halt to all work on the expansion but requiring the Rural Utilities Service to perform an EIS before project work could begin.

A remand order requiring preparation of an EIS is not appealable, Circuit Judges Merrick Garland (chief judge) and Judges Judith Rogers and Thomas B. Griffith found.

They said Sunflower could not be permitted to circumvent the “finality requirement” before appealing.

Allowing Sunflower’s private-party appeal from the remand order, based on a limited injunction entered against the Service, would be to permit an end run around the § 1291 finality requirement and the “general congressional policy against piecemeal review.” Carson, 450 U.S. at 84.

Accordingly, because the injunction against the Service serves no function beyond the remand order, and pursuant to County of Los Angeles this court must ignore the injunction for jurisdictional purposes, we dismiss Sunflower’s appeal for lack of jurisdiction. We thus can express no position on the merits of the injunction or Sunflower’s contention that the Sierra Club’s case was moot when filed. “If we lack jurisdiction, we cannot vacate the district court’s order for lack of jurisdiction because we lack the power to do so.” Defenders of Wildlife v. Perciasepe, ___ F.3d ___, 2013 WL 1729598, at *8 (D.C. Cir. April 23, 2013).

Here are a few excerpts from the 12-page opinion:

Sunflower fails to cite a single case in its favor and neither establishes that the district court resolved important questions separate from the merits, nor demonstrates that the district court’s decision will be unreviewable in a future appeal. For example, if the Service imposes environmental conditions on the expansion project and ultimately withholds additional approvals on environmental grounds, Sunflower can appeal and renew its argument that the Service lacks such authority. Or if the Service grants additional approvals and the Sierra Club or another plaintiff challenges the EIS as inadequate, then Sunflower can intervene as of right and, if the plaintiff prevails, argue on appeal that the adequacy of the EIS is irrelevant because the Service’s minor approvals over the years did not constitute, by ccumulation, “major Federal actions” under 42 U.S.C. § 4332(2)(C). (page 7)

Both the Ninth and Eighth Circuits have held that a district court order remanding for preparation of an EIS does not constitute a “final decision” appealable by a private party under the collateral order doctrine or 28 U.S.C. § 1291 more generally. (page 8)

Background, going forward

The district court declined to vacate the Service’s prior approvals or to enter an injunction against Sunflower. See Sierra Club II, 841 F. Supp. 2d at 361–63. Instead, it granted declaratory relief, entered a limited injunction against the Service, and remanded the matter to the Service for further proceedings. See id. at 363–64. Notably, the Service had requested the injunctive relief in its supplemental briefing in the district court. See id. at 359–60 & n.8. At the time, the Service was still contesting the district court’s grant of summary judgment to the Sierra Club for failure to prepare an EIS and planned to appeal, but wanted to ensure that the expansion project did not commence until any necessary EIS had been completed. On appeal, the Service has acquiesced in the merits. At oral argument, its counsel agreed that, pursuant to the judgment of the district court, the Service must prepare an EIS if Sunflower seeks additional approvals for the expansion project, and committed that the Service would do so on remand even absent the injunction.

Sierra Club v. Department of Agriculture, 12-5095 (5/28/13)

A pirate is a pirate is a pirate

A few days before that decision, the Ninth Circuit affirmed its injunction against an anti-whaling group and rejected a request for rehearing by Sea Shepherds’ controversial founder, Paul Watson. The court also affirmed its decision to reassign the case to a different judge on remand.

Chief Judge Alex Kozinski and Circuit Judge A. Wallace Tashima overruled Circuit Judge Milan D. Smith Jr. in reassigning the case (Institute of Cetacean Research v. Sea Shepherd Conservation Society, 12-35266, 5/24/13).

The district judge has expressed strong and erroneous views on the merits of this high profile case. Without ourselves reaching any determination as to his ability to proceed impartially or impugning his integrity, to preserve the appearance of justice, we conclude reassignment is appropriate.

The court also dismissed Sea Shepherd founder Paul Watson’s petition for rehearing en banc “of our April 1, 2013, order denying him leave to file a late supplemental petition for rehearing en banc.”

“We are unpersuaded by Watson’s belated claim that he and co-defendant-appellee Sea Shepherd developed ‘divergent interests.’ ” the court said. “Watson had months to consider whether his interests diverge from Sea Shepherd’s, yet claims to have discovered only recently that they do. He does not explain how or why. His bald assurance that ‘serious grounds exist[]‘ is too little, too late.”

Repeating language from the court’s Feb. 25 opinion, which first reassigned the case, Kozinski started off:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Relevant language from Dec. 17, 2012, injunction:

“Defendants Sea Shepherd Conservation Society and Paul Watson, and any party acting in concert with them (collectively “defendants”), are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research, Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel (collectively “plaintiffs”), or from navigating in a manner that is likely to endanger the safe navigation of any such vessel. In no event shall defendants approach plaintiffs any closer than 500 yards when defendants are navigating on the open sea.”

Excerpt from May 24 amended opinion:

[E]njoining piracy sends no message about whaling; it sends the message that we will not tolerate piracy. This is hardly a controversial view, as evidenced by a joint statement from the United States, Australia, the Netherlands and New Zealand condemning dangerous activities in the Southern Ocean. Joint Statement on Whaling and Safety at Sea from the Governments of Australia, the Netherlands, New Zealand, and the United States: Call for Responsible Behavior in the Southern Ocean Whale Sanctuary (Dec. 13, 2011), available at Refusing the injunction sends the far more troublesome message that we condone violent vigilantism by U.S. nationals in international waters.