9th Circuit

Sep 102015

Bee pollinating basil (public domain image)

Ed. note: Our initial report on this decision, relying on the court's decision, identified sulfoxaflor as a neonicotinoid. It is, in fact,a  sulfoximine. (The opinion said sulfoxaflor "acts on the same receptor in insects as does the class of insecticides referred to as neonicotinoids, but its mechanism is distinct from other neonicotinoids, so it is currently the only member of a subclass of neonicotinoids called
sulfoximines. Some insects that are resistant to other
neonicotinoids are not resistant to sulfoxaflor because of the unique mechanism sulfoxaflor uses." In a statement issued after the decision, EPA said flatly, "Sulfoxaflor is not a neonicotinoid."

Also: While this item does not directly implicate endangered species or wetlands, it could well have an impact on petitions seeking listing of butterflies or bees. There's no question it's a significant decision.


Sept. 10, 2015 -- The Ninth Circuit vacated EPA's unconditional registration of Dow AgroSciences' insecticide, sulfoxaflor, saying it was "based on flawed and limited data [and] was not supported by substantial evidence" (Pollinator Stewardship Council v. EPA, 13-72346).

The opinion is posted below. Here is Earthjustice's announcement and its initial press release (upon suing)

Jun 022015

Afternoon update:

A coalition of environmental groups has filed a lawsuit (technically, a petition for review) in the Ninth Circuit Court of Appeals challenging the Bureau of Ocean Energy Management's approval of Shell's exploration plan for the Chukchi Sea (Alaska Wilderness League v. Jewell). Scroll down for the petition. Here is the press release.

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FWS and NMFS will have to take another look at a Habitat Conservation Plan after a court found that the services did not comply with the law when they issued Incidental Take Permits (Klamath-Siskiyou Wildlands Center v. NOAA, 13-3717-NC, N.D. Cal.).

Here's the conclusion of the order from U.S. District Judge Nathanael Cousins, who had previously issued an opinion

Based on the discussion above, the Court VACATES the northern-spotted-owl incidental take permit issued by FWS, the coho-salmon incidental take permit issued by NMFS, the coho-salmon biological opinion issued by NMFS, the coho-salmon incidental take statement issued by NMFS, and the Final Environmental Impact Statement issued by both FWS and NMFS. The Court finds that the seriousness of the Services’ errors significantly outweighs the asserted disruptive consequences that would result from vacatur. This case is therefore REMANDED to the Fish and Wildlife Service and the National Marine Fisheries Service for further proceedings consistent with this Order.

The Court, however, DENIES KS Wild’s motion to vacate the records of decision. The Court also DENIES KS Wild’s request for an injunction against the Services and Fruit Growers; in particular, KS Wild has not satisfied the irreparable-harm requirement. Finally, the Court DISMISSES KS Wild’s third claim because of its failure to brief the issue at summary judgment.


Feb 272015

Video of oral argument | Audio (2/5/15) The Ninth Circuit affirmed a lower court’s dissolution of an injunction in a challenge to the Grizzly Project on the Kootenai National Forest (Alliance for the Wild Rockies (AWR) v. Bradford, 13-35768). In an unpublished decision, the court found that U.S. District Judge Donald W. Molloy was justified […]

Feb 182015

The Ninth Circuit affirmed a district court decision that upheld the Forest Service’s approval of a small fuels treatment/commercial timber harvest project on the Umatilla National Forest (The Lands Council v. U.S. Forest Service, 14-35176). (South George Vegetation and Fuels Management Project) The brief, unpublished decision rejected claims brought under the National Forest Management Act […]

Feb 102015

Environmental groups file motion in 9th Cir. seeking stay of EPA approval EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353). […]

Jan 122015

#SupremeCourt rejects #California water users’ petition to review Ninth Circuit ESA decision http://t.co/rbdF79v7c0 order list #SCOTUS — Steve Davies (@ESWR_Update) January 12, 2015 Stories on #SCOTUS denial of water users’ petition: http://t.co/4gAM2O3ClA The Hill http://t.co/g3KVdbQuJn Reuters http://t.co/dCVhlcAphi AP — Steve Davies (@ESWR_Update) January 12, 2015 Earlier Thursday, Jan. 8 – The justices will consider whether […]

Jan 052015

The Forest Service and Fish and Wildlife Service adequately reviewed a thinning project in the Nez Perce National Forest, the Ninth Circuit concluded in an unpublished opinion released today (Alliance for the Wild Rockies (AWR) v. Brazell, 14-35050). The judges on the opinion are M. Margaret McKeown, Richard C. Tallman and Michael Daly Hawkins. AWR […]

Dec 192014
Sea Shepherd, Watson found in contempt by Ninth Circuit

The Ninth Circuit has found Sea Shepherd, founder Paul Watson and six volunteer members of the Sea Shepherd US board in contempt of court for violating an injunction that forbade the group’s ships from coming within 500 yards of Japanese whaling ships (Institute of Cetacean Research v. Sea Shepherd, 12-35266). Order and amended opinion from […]

Dec 172014

The Ninth Circuit yesterday affirmed a lower court order upholding federal agencies’ review and approval of the Beaverslide Project and its effect on the threatened Northern spotted owl (Conservation Congress v. Finley, 12-16916). See below for a summary of the decision, which addresses claims brought under the ESA, NFMA and NEPA. Follow the link in […]