Sep 112014

A challenge to development of part of the Rosebud Mine in Montana has been rejected as unripe by the Ninth Circuit Court of Appeals (Montana Environmental Information Center (MEIC) and Sierra Club v. Stone-Manning, 13-35107).

The circuit judges on the panel were Diarmuid F. O’Scannlain, Andrew J. Kleinfeld and Marsha S. Berzon. O’Scannlain wrote the opinion. The named defendant is Tracy Stone-Manning, director of the Montana Department of Environmental Quality.

According to a summary prepared by court staff, the panel "held that the plaintiffs lacked standing, and their claims for declaratory and injunctive relief were not ripe. The panel concluded that the plaintiffs’ alleged injury was not imminent because, even assuming arguendo that the Director would not do a proper cumulative hydrologic impact assessment under the Act, the plaintiffs’ allegations did not establish a substantial risk that the Director would grant the permit application at all. Without deciding whether the firm prediction rule applied under the circumstances of this case, the panel held that the rule’s standards for ripeness were not met because the panel could not make a firm prediction that the Director would grant the mining permit application."

"Even if we assume that MEIC can bring this suit on behalf of its members, see Laidlaw, 528 U.S. at 181, its members do not have standing. They have not suffered an 'actual or imminent' injury in fact. Id. at 180," the court said, adding in the next sentence, "Analyzing the sufficiency of MEIC’s complaint under the constitutional ripeness standard yields the same answer for
the same reasons."


Western Environmental Law Center page

WELC press release on filing of lawsuit  | Complaint


Sep 112014

A GAO review of 203 rules classified as "major," "significant" and "economically significant" found that the federal agencies could do a better job of explaining why those classifications were justified. (Full report) (HTML)

From a summary of the report, issued Sept. 11:

GAO’s review also found that for the majority of the 109 significant rules reviewed, the rulemaking process is not as transparent as it could be. This is because 72 percent of these rules included no language to explain why the rule was designated as significant. Some agency officials indicated that the Office of Management and Budget’s Office of Information and Regulatory Affairs did not always provide a reason for changing a rule's designation to significant. The rulemaking process could be more transparent if significance designations were explained and communicated.

GAO "reviewed 109 significant rules and 57 economically significant rules. Estimates of these populations are based on these sample data and are subject to sampling error. To supplement the rule review and to answer our second objective, we conducted roundtable discussions with 17 of the 32 independent We also reviewed the population of all 37 major rules issued by independent regulatory agencies within the same time frame."

Included in the review were the following rules:


Revision of critical habitat designation for the Southwestern Willow Flycatcher, 78 Fed. Reg. 344

Migratory Bird Hunting; 2011-12 Migratory Game Bird Hunting Regulations, 76 Fed. Reg. 58,682

Migratory Bird Hunting; 2011-12 Migratory Game Bird Hunting Regulations, 76 Fed. Reg. 59,271

Migratory Bird Hunting; 2012-2013 Migratory Game Bird Hunting Regulations, 77 Fed. Reg. 58,444

Migratory Bird Hunting; 2012-2013 Migratory Game Bird Hunting Regulations, 77 Fed. Reg. 58,628

DOI Bureau of Safety and Environmental Enforcement

Increased Safety Measures for Oil and Gas Operations on the Outer Continental Shelf, 77 Fed. Reg. 50,856


High Seas Driftnet Fishing Moratorium Protection Act; Identification and Certification Procedures to Address Shark Conservation, 78 Fed. Reg. 3338

Revision of Critical Habitat Designation for the Endangered Leatherback Sea Turtle, 77 Fed. Reg. 4170


Regulation To Establish No-Discharge Zone in California State Waters Under CWA 312(f)(4)(A), 77 Fed. Reg. 11,401

Sep 112014

FWS has revised its critical habitat designation for Canada lynx, and changed the Distinct Population Segment boundaries to "where found" in the lower 48. The service took the actions to comply with a couple of settlement agreement. See for the relevant Federal Register notices, filed on Public Inspection.

FWS also has listed as threatened a plant from Georgia and Alabama -- Georgia rockcress. The service also designated 723 acres in the two states as critical habitat for the plant. Go to the same link above for FR notices.

Lastly, today's date makes me think of Rich Guadagno, a Fish and Wildlife Service wildlife refuge manager (and enforcement agent) who was on Flight 93. Click the link for a two-year-old piece I posted on this website.

Rich Guadagno (from

Some more links

USFWS remembers Rich Guadagno

United Flight 93 heroes

National Park Service link

San Francisco Bay Area Flight 93 memorial page

Jacksonville father remembers son killed in 9/11 attacks (by Lewis Turner)