Aug 232013

Seems like everyone's getting the idea that the public is interested in the actual rulings themselves. From IndyBay, here's yesterday's order from U.S. District Judge Lawrence J. O'Neill lifting a temporary restraining order and denying the preliminary injunction request that sought to prevent "flow augmentation releases" (San Luis & Delta-Mendota Water Authority v. Jewell, 13-1232-LJO-GSA, E.D. Ca.) (Order from ESWR's page).

Here's news coverage of the decision, from a Google news search. Below is a specific link. And here is a news release from Rep. Jared Huffman (D-CA, 2d District).  (Damon Arthur, Redding Record-Searchlight)


Although a court's analysis of likelihood of success in the context of an injunctive relief request is governed by the deferential APA's arbitrary and capricious standard, see Lands Council, 537 F.3d at 987; Ranchers Cattlemen, 415 F.3d at 1093, a court does not always owe deference to federal agencies' positions concerning irreparable harm, balance of hardships, or public interest. In Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1186 (9th Cir. 2011), decided in the context of a motion for a post-judgment permanent injunction, the Ninth Circuit held that a district court “abused its discretion by deferring to agency views concerning the equitable prerequisites of an injunction.” The Ninth Circuit reasoned that “[e]cology is not a field within the unique expertise of the federal government,” and remanded for analysis “without deference” to the agency's experts “simply because of their relationships with the agency.” Id. If government experts “were always entitled to deference concerning the equities of an injunction, substantive relief against federal government policies would be nearly unattainable.” Id. It is not clear whether this standard applies to pre-judgment motions for temporary and/or preliminary injunctive relief. Even if it does, there are no real disputes among the scientific experts in this case.


Public Interest

Both sides o this dispute represent significant public interests. Federal Defendants and Defendant Intervenors correctly point out that the federal government has invested large sums of money into the restoration of the fisheries in question. Yet, it is equally true that the government has and continues to invest in the long-term viability of agriculture in the Central Valley. Neither side holds veto power over the other. Nevertheless, on balance, considering the significantly lower volume of water now projected to be involved and the potential and enormous risk to the fishery of doing nothing, the Court finds it in the public interest to permit the augmentation to proceed.

Aug 202013

The District Court of Appeals in Washington, D.C., was tempted to rule for the appellants in a case involving the markhor, a goat that roams the mountains of Pakistan, but ultimately decided that the law required it to step aside and let the administrative process play out (Conservation Force v. Jewell, 11-5316, D.C. Cir., 8/20/13).

As tempting as it may be to consider an arbitrary and capricious claim in a case involving a goat, an array of justiciability problems -- mootness, ripeness, and standing -- require us to decline the opportunity.

As Circuit Judge Merrick Garland explained in a footnote, with the help of the Oxford English Dictionary, the word “capricious” can be traced to “capriccioso,” which is used in music to denote “a free fantastic style,” and which in turn is derived from the Italian “capro,” meaning “goat, as if ‘the skip or frisk of a goat’ .”

میں تو صرف آزاد ہونا چاہتے ہیں
Photo by Konstantin Mikhailov,

[Editor's note: Mostly, I quoted Garland's footnote there, but didn't bracket it with quote marks to avoid confusion.]

Beyond etymology, however, the decision was a simple one for the D.C. Circuit, which required only 13 pages to dispense with Conservation Force's latest attempt to hold FWS's feet to the fire regarding its decisions on international game species.

Once again, FWS was able to get in under the wire, issuing a proposal to downlist the goat while the appeal was underway. The court's chronology follows:

On August 7, 2012 -- seven days after the reply brief in this appeal was filed -- the Service issued a “12-month finding” (albeit, not within 12 months) on Conservation Force’s 2010 petition for a rule to downlist the markhor. Reclassifying the Straight-Horned Markhor with Special Rule, 77 Fed. Reg. 47,011 (Aug. 7, 2012). That finding was favorable to the appellants. Indeed, it was accompanied by a proposed rule to downlist the species, “based on a review of the best available scientific and commercial data which indicates that the endangered designation no longer correctly reflects the status of the straight-horned markhor.” Id. The finding included a lengthy background section that referenced Tareen’s 1999 petition and acknowledged that a “12-month finding was never completed” on that earlier petition. Id. at 47,012-13.

The Service’s publication of a 12-month finding on Conservation Force’s 2010 petition renders moot the appellants’ challenges to the Service’s failure to publish such a finding with respect to Tareen’s 1999 petition. It is true that the Service never technically completed a 12-month finding on Tareen’s petition. But that alone cannot preserve appellants’ claims for our review. Both Tareen’s and Conservation Force’s petitions sought precisely the same thing: a rule to downlist the straighthorned markhor. By taking action with respect to the latter petition, the Service effectively took action with respect to the former petition as well.

Note: The caption is in Urdu. Copy and paste to Google Translate for English translation.