Court calls

Court decisions and other big judicial news

Oct 142015
 

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges, whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. 3 Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance."

Sep 162015
 

The Forest Service must take another look at a mining project it approved in the Coronado National Forest, following a federal judge's decision that found the service improperly excluded the project from NEPA review (Defenders of Wildlife v. U.S. Forest Service, 14-2446-TUC-RM, D. Ariz.).

The now-postponed Sunnyside Project, proposed by Regal Resources, would involve "six temporary drill sites to assess copper mineralization," U.S. District Judge Rosemary Márquez said in her order, issued yesterday (Sept. 15).

"USFS’s determination that the project can be completed in one year or less is unsupported by the record. Therefore, USFS’s approval of the project using the categorical exclusion for short-term mineral explorations pursuant to 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious," she said.

The service had approved the project in April after consulting with the Fish and Wildlife Service and concluding that the project would not adversely affect endangered species, including the western yellow-billed cuckoo. The plaintiffs, including the Patagonia Area Resource Alliance, filed a supplemental complaint that dropped the ESA claims.

It turned out that NEPA was enough.

"The decision authorized Regal Resources to run its drill rigs for at least five months in sensitive endangered species’ habitat," Defenders of Wildlife said in a news release announcing the judge's decision. "Loud mineral drilling operations and construction would occur 24 hours a day, seven days a week (using artificial lighting at night) with total project operations and reclamation lasting up to three years."

The Forest Service did not adequately explain why "potential effects to the Mexican spotted owl are certain to be environmentally insignificant," the judge said. "[T]he administrative record indicates that the effects of the Sunnyside Project’s nighttime lighting on the Mexican spotted owl are uncertain, and that negative effects on the owl from project noise can be anticipated in up to 26% of the owl’s non-breeding territory."

In addition, she said, "USFS’s determination that the Sunnyside Project will not have significant environmental effects is based in large part upon the anticipated ability of listed species, such as the ocelot and jaguar, to avoid the affected area during project activities. This basis for USFS’s determination is undermined by the [Forest Service's] revised Decision Memorandum’s failure to consider the Sunnyside Project’s cumulative effects in relation to other temporally and geographically similar mineral exploration projects."

Regarding cumulative impacts, the judge said, "While the ESA definition of cumulative effects ignores future federal actions (see 50 C.F.R. § 402.02), the broader NEPA definition looks to 'the incremental impact of the action when added to [all] other past, present, and reasonably foreseeable future actions.' 40 C.F.R. § 1508.7. In relying upon the revised [Biological Assessment's] EPA [sic: Judge surely meant to write "ESA"] cumulative impact analysis, the revised Decision Memorandum failed to conduct a proper cumulative impact analysis under NEPA."

"[I]n finding that the Sunnyside Project was not likely to adversely affect listed species, USFS and USFWS relied heavily on the project’s limited temporal and geographic scope. The record indicates that the Hermosa Project will have similar  environmental effects as the Sunnyside Project, meaning the environmental disturbances from the projects will exist over a larger geographical area and a larger temporal timeframe than that analyzed in the revised Decision Memorandum. Even if the projects will not temporally overlap, USFS has not shown that its failure to analyze the cumulative impact of the Sunnyside and Hermosa projects clearly had no bearing on its conclusion that the Sunnyside Project would not have cumulatively significant environmental effects."

USFS also "failed to clearly show" that the two projects won't occur at the same time. The Hermosa Project is due to start in November.

"The argument that the Sunnyside Project and the Hermosa Project will have no cumulative impacts because they will not temporally overlap is a post hoc rationalization unsupported by the information available to USFS at the time it issued its revised Decision Memorandum," Márquez  wrote.

 

Aug 192015
 
Mississippi Phosphates will transfer 320 acres to Grand Bay National Estuarine Research Reserve

Company in bankruptcy pleads guilty to felony violation. Press release from DOJ follows. DOJ’s link here. ______________________________________________________________________________ FOR IMMEDIATE RELEASE                                                                                             ENRD WEDNESDAY, AUGUST 19, 2015 (202) 514-2007 WWW.JUSTICE.GOV                                                                                    TTY (866) 544-5309 MISSISSIPPI PHOSPHATES CORP. PLEADS GUILTY TO CLEAN WATER ACT VIOLATION AND AGREES TO […]

Apr 272015
 

Press release Forest Service info on the Tennessee Creek Vegetation Management Project Conservation groups, concerned about the effects of a logging project on lynx denning habitat, have filed suit against the Forest Service in Colorado (WildEarth Guardians v. Conner, 15-858, D. Colo.). The defendant is Tamara Conner, District Ranger of the Leadville Ranger District in […]

Mar 162015
 

Let’s not do the Time Warp again. That was the message from U.S. District Judge Edward Lodge, who said on March 11 that the Forest Service did not rely on the best available science when it updated its travel management plan (Friends of the Clearwater v. U.S. Forest Service, 13-515 EJL, D. Idaho). A press […]

Feb 102015
 

A lawsuit has been filed seeking a threatened listing under the Endangered Species Act for the blueback herring. From the news release: In August 2011, NRDC petitioned NMFS to list blueback herring as threatened under the ESA, and to designate critical habitat for the species. Two years later, the Service published its determination that the […]

Feb 022015
 
Lawsuit filed over dams' effects on pallid sturgeon

Defenders of Wildlife and Natural Resources Defense Council have sued three federal agencies “demanding that [they] fix their dam operations that threaten the existence of wild pallid sturgeon.” (press release) (complaint) “Although the impacts of these dams have been well documented for more than 20 years, the agencies have avoided their obligations under the Endangered […]

Jan 282015
 

EPA has sent the following notice to the Federal Register for publication: ENVIRONMENTAL PROTECTION AGENCY [EPA-R10-OW-2014-0505; FRL-9922-23-Region-10] Notice of Status Update on the Proposed Determination for the Pebble Deposit Area, Southwest Alaska AGENCY: Environmental Protection Agency. ACTION: Notice of status update. SUMMARY: On July 21, 2014, the U.S. Environmental Protection Agency (EPA) published in the […]

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 082015
 

A federal judge has rejected a request for a preliminary injunction that would prevent dredging of the lower Snake River (Idaho Rivers United v. U.S. Army Corps of Engineers, 14-1800 JLR, W.D. Wa.; order below). “Because the court has found that plaintiffs have failed to demonstrate three of the required elements necessary for issuance of […]