Sacketts likely to win Supreme Court case, law profs say

Posted by Steve Davies on January 11, 2012 at 4:28 pm Army Corps of Engineers, Court calls, Daily Links, Supreme Court, Wetlands
Jan 112012

Ed. note: There’s more coming on this, including audio from the Supreme Court press conference and the GU Law Center forum. Below is the video clip posted by Pacific Legal Foundation on YouTube of the post-argument press conference. It ends before reporters began asking questions.

When you finally get around to covering a Monday story on Wednesday, you have to come up with a new hook. Fortunately, there’s one staring me in the face (and reliably recorded on my beat-up Olympus–at least it better be).

At a Georgetown University Law Center forum a few hours after the arguments in Sackett v. EPA had ended, Professors Richard Lazarus of Harvard and Richard Frank of UC-Davis confidently predicted an overwhelming victory for Chantell and Michael Sackett. (To be fair, Frank has already shared his views on Legal Planet, so my hook isn’t unique. But unlike Frank, I’m sticking his prediction a bit higher up in the narrative.)

“This case makes me uncomfortable,” Frank started off, before launching into his analysis of the case and the arguments conducted by Pacific Legal Foundation attorney Damien Schiff and Deputy Solicitor General Malcolm Stewart — and, of course, his assessment of the attitudes expressed by the eight Supreme Court justices who questioned the lawyers.

He praised Schiff, both for “a very powerful brief; he told a story” and for his performance before the high court, the first time the thirtysomething lawyer has appeared on the biggest legal stage in the U.S.

“The Sacketts are likely to prevail by 7-2 or 8-1,” Frank said. He said it’s possible that Justice Ruth Bader Ginsburg could be the only holdout, but also that she might join a unanimous court in order to have some say over the content of the opinion.

Lazarus, an acknowledged Supreme Court expert who has participated in 40 cases before the court, agreed with Frank’s assessment and said Chief Justice John Roberts might very well assign the opinion to Ginsburg, because he likes to assign liberals to 9-0 decisions. That might provide the government with a “soft landing.”

“He’s going to have an institutional bias to giving this to a liberal justice,” Lazarus said.

But if for some reason the opinion goes to Justice Antonin Scalia, watch out, Lazarus said. In that case, there could be “a lot of dumping on the Clean Water Act and the Corps of Engineers.”

Lazarus called the eventual Supreme Court decision “potentially unanimous” and said he did not think the verdict would be closer than 8-1.

“It’s just a question of how sweeping the ruling is,” Lazarus said.

More coverage and commentary

NAHB's NWP 46 appeal rejected by D.C. Circuit

Posted by Steve Davies on December 16, 2011 at 2:41 pm Army Corps of Engineers, Clean Water Act, Daily Links, Wetlands
Dec 162011

The D.C. Circuit Court of Appeals has rejected a lawsuit from the National Association of Home Builders challenging Nationwide Permit 46. The court concluded NAHB did not have standing to pursue the litigation (Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, 10-5619)

Here’s a paragraph from the court’s ruling, authored by Senior Circuit Judge Stephen Williams. He was joined on the opinion by Circuit Judge Karen LeCraft Henderson and Senior Circuit Judge A. Raymond Randolph.

The NAHB filed suit claiming that, by issuing NWP 46, the Corps had unlawfully asserted jurisdiction over upland ditches, which it contends are categorically excluded from being “waters of the United States” and thus are categorically not subject to CWA regulation. Corrected Complaint ¶¶ 25- 27, 29. The Corps moved for summary judgment. The district court found that the NAHB had standing to pose these (and related) legal challenges, finding that NWP 46 had caused the NAHB’s members injury by leaving them “unsure of whether ditches they construct fall under” the Corps’s jurisdiction, and that that uncertainty would force many to waste time and money by unnecessarily seeking authorization. Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 699 F. Supp. 2d 209, 214 (D.D.C. 2010). Ultimately, however, the district court granted the Corps’s motion on the merits, and the NAHB now appeals.

The decision also is here. 

Some briefs in the case are here (and pasted below)

More NWP 46 docs

Supplement to NWP 46 decision document, addressing regional conditions for S.F. District.

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Sharp Park injunction to protect frog, S.F. garter snake denied

Posted by Steve Davies on November 30, 2011 at 6:00 pm Court calls, Daily Links, ESA, Wetlands
Nov 302011

U.S. District Judge Susan Illston has rejected environmental groups’ request for an injunction to stop certain activities at a public park in San Mateo County, California, because of the impacts on two federally listed species — the threatened California red-legged frog and the endangered San Francisco garter snake (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

S.F. garter snake (Photo by Sue Gardner)

The plaintiffs said they would continue to trial (scheduled for May 2012) in their fight to halt water pumping and restrict golf course operations. (See their press release, reprinted below.)

Here is the San Francisco Public Golf Alliance‘s opposition to the motion for a preliminary injunction.

In her Nov. 29 order, Illston said the plaintiffs had not shown “irreparable harm” to the species, a necessary test for obtaining a preliminary injunction.

“The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction,” Illston said. “However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm.”

Here is the relevant portion of her order:

Plaintiffs argue that this means that in the context of the ESA, “under Supreme Court and Circuit precedent, so long as it is likely that ongoing, illegal — and especially, as here, lethal — take will occur, injunctive relief to address that take must be crafted, because Congress has afforded listed species the ‘highest of priorities,’ and has eliminated the equitable balancing otherwise required.” Pl.’s Mot. at 21 (citing TVA v. Hill, 437 U.S. 153, 194 (1978)). In other words, according to plaintiffs, they need only show that defendants’ activities are likely to cause take of a listed species. Pls.’ Mot. at 21. Plaintiffs make no mention of the requirement of showing irreparable harm absent injunctive relief in their moving papers.

However, “even in the Ninth Circuit, plaintiffs ‘must establish the likelihood of irreparable harm in the future.’” ABA Section of Environment, Energy, and Resources, “Endangered Species Act,” 172 (Donald Baur et al., eds., 2nd ed. 2010) (citing National Wildlife Federation v. Burlington Northern R.R., Inc., 23 F.3d 1508, 1511 (9th Cir. 1994)); see also Defenders of Wildlife v. Salazar, 2009 U.S. Dist. Lexis 131058, *6 (D. Mt. 2009) (although plaintiffs likely to succeed on the merits that delisting wolves violated the ESA, they failed to show irreparable harm to the wolf population, instead of individual wolves). In support of their proposed legal standard, plaintiffs rely on a variety of cases that grant permanent injunctive relief, not preliminary injunctive relief. See Pls.’ Mot. at 21; citing Marbled Murrelet, 83 F.3d at 1067 (affirming permanent injunction upon finding that “implementation of Pacific Lumber’s harvesting plan would likely harm marbled murrelets”); Ctr. for Biological Diversity v. Marina Point Development Associates, 434 F. Supp. 2d. 789, 795 (C.D. Cal. 2006) (granting permanent injunction against developer); Animal Protection Institute v. Holsten, 541 F.Supp. 2d 1073, 1081 (D. Minn. 2008) (issuing injunction on summary judgment where the “Court finds it likely that additional takings may occur unless further regulations are implemented.”) Plaintiffs might be correct that at the final judgment stage, they need only show the likelihood of future take of a protected species to warrant injunctive relief. However, that question is not before the Court; instead, plaintiffs seek the extraordinary remedy of a preliminary injunction. Plaintiffs provide no support that the issuance of a preliminary relief should occur absent a showing of irreparable harm.

The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction. However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm. See Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 109 (D. Me. 2008); Alabama v. U.S. Army Corps of Engineers, 441 F. Supp. 2d 1123, 1135-36 (N.D. Al. 2006) (collecting opinions); Defenders of Wildlife, 2009 U.S. Dist. LEXIS 131058 at *14 (“[T]o consider any taking of a listed species as irreparable harm would produce an irrational result” because the ESA allows for incidental take permits.) The court in Pacific Coast Federation of Fisherman’s Association v. Gutierrez, 606 F. Supp. 2d 1195 (E.D. Ca. 2008) (Wanger, J.), considered the types of harms that a plaintiff must show to demonstrate a reasonable likelihood of irreparable harm in the Ninth Circuit. The Gutierrez court noted that the standard does not require a showing of likely “extirpation” of the species, id. at 1207, but rather considers whether the action sought to be enjoined “will reduce appreciably [the species’] likelihood of survival or recovery or appreciably diminish the value of their critical habitat.” Id. (citing National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 931 (9th Cir. 2007)). The court accepted the FWS’ definition of “appreciably diminish” to mean “considerably reduce.” Id. at 1208 (citing USFWS/NMFS, ESA Section 7 Consultation Handbook (March 1998), at 4-34).

In sum, the plaintiffs must demonstrate both that they are likely to succeed on the merits of their claim, and demonstrate that there will be a reasonable likelihood of irreparable harm absent injunctive relief.

More from the order:

On September 23, 2011, plaintiffs filed a motion requesting a preliminary injunction to halt defendants’ water pumping activities at Sharp Park, as well as its lawn mower and golf cart usage on holes 9 through 18 of the Sharp Park Golf Course.

Plaintiffs, a collection of non-profit conservation groups, filed suit against the City and its officials for violation of the Endangered Species Act. Plaintiffs allege that defendants’ operations and activities at Sharp Park Golf Course have caused the “taking” of the threatened Californian red-legged frog and the endangered San Francisco garter snake and that therefore, defendants should have obtained an Incidental Take Permit (“ITP”) pursuant to Section 10 of the ESA, 16 U.S.C. § 1539(a)(1)(B).  Specifically, plaintiffs contend that defendants’ water management at Sharp Park has exposed frog egg masses to the air, causing fatal desiccation of the egg masses, thereby reducing the frog population. Plaintiffs also claim that other golf course operation activities — lawn mowing and golf cart usage — harm the Snake and Frog by running them over. Along with other relief, plaintiffs seek a declaration that defendants are violating the ESA by illegally taking the Frog and the Snake without an ITP, and an injunction against defendants to prevent ongoing activities allegedly causing take. Defendant City owns and operates the park; the Court allowed the SFPGA to intervene as a defendant in this action as well.

PRESS RELEASE BY ENVIRONMENTAL PLAINTIFFS

For Immediate Release, November 30, 2011

Contact:   

Brent Plater, Wild Equity Institute, (415) 572-6989
Jeff Miller, Center for Biological Diversity, (415) 669-7357
Michelle Myers, Sierra Club, San Francisco Bay Chapter, (415)-646-6930

Lawsuit Over Sharp Park Golf Course Harm to Endangered Species Will Continue to Trial

Judge Denies Temporary Emergency Protections for Endangered Species

SAN FRANCISCO— A federal district court judge has denied a request for an immediate injunction against golf-course operations documented to kill and harm endangered species at Sharp Park in Pacifica. The court referred to a temporary injunction as “extraordinary relief,” and will wait until the scheduled trial next summer to consider measures to address the San Francisco Recreation and Parks Department’s pumping of water from wetlands where California red-legged frogs lay eggs and mowing of vegetation used by critically endangered San Francisco garter snakes.

“The judge did not think that immediate restrictions on the golf course are necessary and intends to address these matters at trial,” said Brent Plater, executive director of the Wild Equity Institute and legal counsel on the suit. “We are excited to go to trial and expect the judge to craft appropriate relief once she has heard the merits of the case.”

“It’s shameful that San Francisco intends to continue draining and mowing sensitive wetlands for another winter — you’d think the ‘green city’ would do right by its namesake endangered species,” said Jeff Miller, conservation advocate with the Center for Biological Diversity. “Because San Francisco garter snake numbers are so dangerously low, golf-course mismanagement that kills a single snake threatens the species as a whole.”

The interim ruling does not affect the ongoing lawsuit filed by conservation groups over the Parks Department’s documented killing of endangered species. Although the court declined immediate relief, it is reserving judgment on the merits of the lawsuit until trial, which begins in July 2012. The Parks Department has no viable plan to comply with the Endangered Species Act or adequately protect endangered species.

“Though we are saddened there will be another season where harm will fall on these fragile creatures, we are confident in our ability to make a strong case for protection of both species in trial,” said Michelle Myers of the Sierra Club.

The judge ruled conservation groups did not show irreparable harm would occur before the case is resolved at trial. Although San Francisco does not deny golf-course operations harm endangered species and the city lacks required permits, the judge relied on assertions by Parks Department staff and hired biologists that ongoing stranding and killing of frog eggs is not hurting the overall frog population and the department’s “compliance plan” can adequately protect frogs and snakes in the short term.

Background

Ongoing killing of endangered frogs at the golf course and a Parks Department “restoration” plan that would actually evict endangered frogs and garter snakes from Sharp Park led to conservation groups filing suit under the Endangered Species Act and asking for an injunction on certain golf-course activities hurting endangered wildlife. Leading experts submitted declarations supporting the temporary injunction.

The city’s Parks Department cited increased observations of frog eggs last winter as evidence of an improving population trend for red-legged frogs in Sharp Park, yet restored habitat conditions at adjacent Mori Point, managed by the National Park Service, a wet winter, and increased surveys and scrutiny by biologists are more likely explanations. Leading scientific experts, with collective experience of more than seven decades of research and study of California amphibians and reptiles, have explained that the golf course is a “population sink” that kills more frogs than are bred and alters suitable habitat, threatening the long-term survival and recovery of both frogs and snakes. The experts also objected to the Parks Department’s alleged compliance plan, which is not being followed, as “unworkable.”

Sharp Park Golf Course faces crumbling infrastructure, annual flooding problems and ongoing environmental violations. Dozens of San Francisco community, recreation, environmental and social-justice groups are calling for a more sustainable public park at the site. A San Francisco Board of Supervisors committee will vote Dec. 5 on legislation introduced by Supervisor John Avalos that would create a long-term solution for Sharp Park by transitioning management to the National Park Service’s Golden Gate National Recreation Area. This change would not only protect endangered wildlife but also improve recreation and public access and save San Francisco taxpayers’ money. The proposed partnership would end the city’s legal and financial liabilities for Sharp Park and put the National Park Service in charge of protecting endangered species and providing public recreation, allowing San Francisco to reinvest its scarce resources in city-based parks, recreation centers and golf courses.

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Corps did not scrutinize Fla. mall's impacts on Eastern indigo snake, D.C. Circuit finds

Posted by Steve Davies on November 29, 2011 at 12:25 pm Army Corps of Engineers, Clean Water Act, Court calls, Daily Links, Fish and Wildlife Service, NEPA, Wetlands
Nov 292011

Opinion is here

Corps didn’t properly review Fla. mall’s effects: D.C. Cir. (from page 1)

The Army Corps of Engineers should have looked more closely at the expected impact on the threatened Eastern indigo snake from construction of a large shopping mall, the D.C. Circuit Court of Appeals has ruled (Sierra Club v. Van Antwerp, 10-5284).

The currently dormant Cypress Creek Town Center project, located outside Tampa, would result in displacement of more than 50 acres of wetlands, including habitat for the snake and the endangered wood stork.

In its Nov. 29 decision, the circuit court essentially did the opposite of U.S. District Judge Royce Lamberth, who had issued a scathing opinion finding against the Corps on the plaintiffs’ NEPA and Clean Water Act claims (Sierra Club v. Van  Antwerp, 719 F.Supp.2d 58 (D.D.C. 2010) (07-1756 RCL).

Instead, Circuit Judges Stephen Williams, Brett Kavanaugh and Merrick Garland upheld the Corps’ evaluation of alternatives as required by Section 404 under the CWA. The proposed mitigation is enough to compensate for the loss of the wetlands, which lack “uniqueness,” the court said, using the Corps’ word.

The plaintiffs had argued that the court should be skeptical about the value of wetlands creation as mitigation, given its often lackluster results. But the court said “the ultimate CCTC plan called for creation and preservation of substantial substitute wetlands, the sort of mitigation measures that we have found ‘sufficiently reduce the impact to a minimum.’ Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008) (quoting TOMAC, 433 F.3d at 861).”

The court had no problem with the Corps’ acceptance of the developer’s reason for having more parking spaces than nearby malls, because there are more restaurants.

“[B]oth sides agree that CCTC’s parking ratio exceeds that of nearby malls,” the court said. “But CCTC defends its above-average ratio by pointing to the above-average proportion of restaurants in its project. While the Sierra Club does not contest the restaurant-parking link, it argues that there is no reason for so many restaurants. CCTC, in turn, seeks to justify the high proportion by saying that it aims to create more than a traditional mall. Whereas traditional malls use 4.8 percent of their square footage for restaurants, ‘lifestyle centers’ use 11.3 percent; CCTC, a self-described ‘town center,’ is between these two figures at 8.08 percent.”

“The Corps’ acceptance of CCTC’s parking ratio was not arbitrary or capricious in light of the practicability regulations,” which require the Corps to evaluate whether alternatives are practicable “in light of overall project purposes.” 40 C.F.R. § 230.10(a)(2). The regulations provide that “it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the market place.”

The Corps also properly concluded that the impacts to the wood stork were not significant enough to warrant formal consultation, the court said. “[T]he Corps’ conclusions rested on the project’s mitigation measures, which will bring about a net gain of wood stork foraging habitat.”

Sierra Club, however, contended in its opening brief that the government did not “address near term adverse impacts on breeding colonies while off-site mitigation is being implemented.”

“Given the relatively marginal role of the lost habitat, it does not seem arbitrary or in contravention of its statutory mandate for the Corps to find that the mitigation’s more than ‘one-to-one replacement ratio’ made up for the temporary deprivation.” The court concluded.

Snake needed more scrutiny, court says

However, “[i]n both ESA and NEPA contexts, we . . . find that the Corps failed to adequately address indications of an adverse effect on the indigo snake.”

In both of its findings of no significant impact, the Corps did not address possible the fragmentation of snake habitat. The second time, it was after submission of a declaration by Dr. Kenneth Dodd,  who as  Staff Herpetologist for FWS’s Office of Endangered Species had written the rule listing the snake as threatened. Dodd said “the project site was an important ‘wildlife corridor’ linking protected areas to the north and south, [and] noted that ‘movements over large areas of fragmented habitats expose Eastern Indigo Snakes to increased road mortality,’ and that ‘the more edge there is in relation to protected habitat [i.e., ratio of perimeter to surface area], the less likely large snakes can be maintained.’ ”

Nevertheless, “In its second FONSI, issued in August 2009, the Corps again did not address the impacts of habitat fragmentation.”

Said the court: “Given Dr. Dodd’s expertise and experience, and the seeming logic of his analysis, as well as CCTC’s own acknowledgment of the snake’s vulnerability to fragmentation risk, we think his comment qualifies as the sort of ‘relevant and significant’ public comment to which an agency must respond, lest its action be arbitrary and capricious.  See Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211 (D.C. Cir. 2011). Accordingly, we must remand for further explanation by the Corps of its determination that the project was ‘not likely to adversely affect’ the indigo snake.  We do not reach the issue of whether formal consultation is required, but the Corps must make some determination on the issue of habitat fragmentation, both for ESA and NEPA purposes.”

 

 

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U.S. files brief in Sackett wetlands enforcement case

Posted by Steve Davies on November 27, 2011 at 1:15 am Court calls, Daily Links, Wetlands
Nov 272011

Solicitor General Donald B. Verrilli Jr. has filed the government’s brief in a wetlands enforcement case to be argued before the Supreme Court Jan. 9 (Sackett v. EPA, 10-1062).

The Sacketts' lot in Priest Lake, Idaho

In the brief, docketed with the court Wednesday, Nov. 23, the United States contends that Chantell and Michael Sackett, Idaho landowners who filled a half-acre of wetlands on their Priest Lake property with dirt and rock in preparation for building a home, “have no constitutional right to immediate judicial review” of EPA’s 2007 compliance order requiring them to remove the fill and restore the wetlands to their original state.

“Petitioners cannot be subjected to civil penalties for violating the order unless and until a court determines that a CWA violation has occurred and considers the statutory factors bearing on the appropriate penalty amount,” the government brief says. “Although the risk of civil-penalty liability might deter some persons from engaging in discharges that would not actually violate the CWA, that potential deterrent effect would exist even if EPA had not issued a compliance order because the Act itself imposes liability for unlawful discharges. Petitioners have no generalized constitutional entitlement to an advisory opinion assessing the legality of conduct in which they wish to engage. Petitioners, moreover, face a choice between complying with the order and defending against a possible enforcement action only because they discharged fill on their property without first seeking a permit or consulting with EPA or the Corps. If petitioners had sought a permit, they could have obtained a final agency determination on the question of CWA coverage, and immediate judicial review of that determination, without exposing themselves to potential penalties.”

Compliance orders “fall within the broad range of communications that agencies use to in­form regulated parties of governing legal requirements and existing violations, to encourage voluntary compli­ance or remedial measures, and to initiate consultation between the agency and the regulated person,” the government said. “Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the gov­ernment’s legal or factual assessments generally has no right to immediate judicial resolution of the disagree­ment. A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regu­lated parties, by discouraging interactive processes that can obviate the need for judicial action.”

In addition, the compliance order is not “final agency action,” the brief said. Here’s the excerpt from that section of the government’s summary of its argument:

The compliance order is not “final agency action.” See 5 U.S.C. 704. A Section 309(a)(3) order marks only a step in EPA’s decision-making process, not its consum­mation.  The order invited petitioners to contact EPA if they believed that the allegations in the order were inac­curate or that the specified compliance measures were infeasible. Even if petitioners failed to implement the specified measures, moreover, they could be subjected to monetary sanctions for violating the order only if (a) EPA commenced a Section 309(b) enforcement action against petitioners, and (b) the court in that suit deter­mined that petitioners had violated the CWA as well as the order.  The order therefore did not have the kind of concrete legal consequences that generally are neces­sary to constitute “final agency action.” See Bennett v. Spear, 520 U.S. 154, 177-178 (1997); FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-243 (1980) (Standard Oil).

Links

Pacific Legal Foundation (representing the Sacketts)

Google search results with more

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D.C. Circuit Court of Appeals panel questions Corps' approval of shopping center outside Tampa

Posted by Steve Davies on September 22, 2011 at 5:12 pm Biological Opinions, Court calls, Daily Links, Wetlands
Sep 222011

A federal appeals court panel closely questioned a Justice Department attorney this morning about the Army Corps of Engineers ‘ decision to approve a permit in Pasco County, Florida, for a shopping center that would destroy more than 50 acres of wetlands, including habitat for the endangered Wood stork and threatened Indigo snake (Sierra Club v. Van Antwerp, 10-5284).

Snake in the grass (Photo of Drymarchon corais courtesy U-Georgia)

Two of the three judges appeared skeptical of the reasoning behind the Corps’ May 2007 approval of the permit application from Sierra Properties, which wants to develop what it calls Cypress Creek Town Center. The project would include more than 2 million square feet of retail and commercial space, 630 multifamily housing units, and enough parking for up to 14,000 cars.

“One of three acres of wetlands on site – over 50 acres – and almost 10 acres of surface waters will be destroyed outright, nearly half to provide for parking alone,” the brief filed by Sierra Club, Clean Water Action and Gulf Restoration Network said. Plaintiffs Chris Loy and Richard Somerville also sued the Corps.

The government is appealing a decision by U.S. District Judge Royce Lamberth (Sierra Club v. Van Antwerp, 07-1756 RCL, D.D.C.). “The Corps failed to prepare a required EIS for the project site pursuant to NEPA and failed to require the applicant to demonstrate that practicable alternatives were not available pursuant to CWA,” Lamberth wrote in his June 30, 2010, opinion. He called the Corps’ “[failure] to fulfill its statutory duties under NEPA and the CWA . . . a familiar course of action for the Corps when processing permit applications.”

DOJ attorney Lane McFadden got some difficult questions from Circuit Judges Merrick Garland and Stephen Williams. Their fellow panelist, Circuit Judge Brett Kavanaugh, did not say much during the arguments.

Wood stork (FWS pic)

Garland focused on the Corps’ failure to respond to comments from Dr. C. Kenneth Dodd, the staff herpetologist in the Fish and Wildlife Service’s Office of Endangered Species at the time the snake was listed (and who, in fact, wrote the rule to list the snake).

“No one seems to dispute that he is the world’s foremost expert on the Eastern Indigo snake,” Garland said. Yet, “I don’t see a response to the problem of destruction of the wildlife corridor or the fragmentation of its habitat.”

The snake, McFadden replied, “has done very well in suburban settings.”

The requirement for the service, he continued, “is not to respond to all comments but to make a reasoned decision.” Garland ended McFadden’s initial turn at the podium by saying he wanted to know more about connectivity.

Eric Glitzenstein argued for the plaintiffs/appellants/cross-appellees, so designated because while they essentially won at the district court level, they also were appealing Lamberth’s determination that the FWS had complied with the ESA.

He started by highlighting what his clients considered a particularly egregious oversight: the Corps’ alleged failure to adequately consider a critical question for wetlands on the site — whether the parking envisioned was too much. In their brief, the environmental groups said that “even modestly reducing or consolidating some of the parking could have enormous benefits for the federally protected resources at issue.”

In their appellate brief , the environmental groups pointed to a comment from the Simon Property Group, “at the applicant’s request,” advising the Corps that the “entire center should park at 4.5 spaces per 1,000 square feet of leasable floor space.” The actual ratio is above 5 spaces per 1,000 square feet of retail space.

The brief went on to say, “Another company that has developed major malls in the same area and whose views were also solicited by Sierra Properties confirmed that this would be a ‘typical’ ratio for such a project. The Corps, however, never addressed this evidence.”

“This is exactly the kind of point the Corps should have responded to in the record,” Glitzenstein told the judges.

Background

In their brief, the environmental groups and individuals who sued the Corps summarized the district court opinion:

Based on its review of the Record and pertinent legal standards, the district court held that the Corps violated the CWA by allowing Sierra Properties to skew the economic analysis so that practicable alternatives minimizing wetlands destruction would appear impracticable. In addition, the court held that the extensive CCTC development requires an EIS because it will impair important wildlife habitat and other federally protected resources, and because it has already resulted in unlawful pollution of a valuable water body despite the developer’s insistence that this would not occur. The court rejected Plaintiffs’ claim that formal consultation under the ESA is required, although the Court recognized that the project will likely have adverse effects on the habitat of the threatened Indigo Snake and the endangered Wood stork.

Here’s more from that brief

As the district court held, the notion that it was genuinely “impracticable” within the meaning of the CWA regulations to save wetlands by eliminating some of the more than 12,200 individual paved parking spaces or to consolidate them in garages is unsupported by the record, contrary to the 404 Guidelines, and would render the CWA’s impracticability analysis a meaningless exercise.

Appellate briefs

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Supreme Court takes on wetlands enforcement case; more wetlands links

Posted by Steve Davies on June 30, 2011 at 2:45 pm Court calls, Daily Links, Wetlands
Jun 302011

Ay yi yi, perhaps it’s finally time to fill in some of these empty pages.   Especially as Keith Rizzardi’s reliable ESA Blawg is experiencing growing pains — as in, growing children who need attention.

The Supreme Court headed out of muggy D.C. earlier this week, but not before granting a writ of certiorari in a wetlands enforcement case. Richard Frank offers a succinct summary of the matter at Legal Planet:

In today’s order granting review, the justices indicated they would resolve two issues: 1) whether the Sacketts may seek pre-enforcement judicial review of the EPA compliance order under the APA; and 2) if not, whether the absence of such recourse to the courts violates their right to constitutional due process.

Sackett is a major case, one with implications for environmental enforcement that extend far beyond the CWA to many other federal environmental laws as well. And the potential consequences of a ruling in the Sacketts’ favor would also affect state environmental agencies, to whom the federal government has frequently delegated permitting and enforcement obligations under numerous federal environmental statutes.

Fellow Legal Planet blogger Holly Doremus followed up with a post (also on Tuesday) that said the case as it comes before the court “is not exactly a Clean Water Act case. It’s more general than that.”

Doremus noted that “in its order taking up the case,” the court said it “would review whether the Administrative Procedure Act, the general background law governing federal agency actions, provides for pre-enforcement review of the order, and if not whether the lack of reviewability violates Due Process. Although the case isn’t exactly about [CWA] § 404, though, I think the court’s decision to hear it can’t be divorced from that context. Several members of the court are highly suspicious of wetlands protection.”

Here’s the text of the court’s order:

“The petition for a writ of certiorari is granted limited to the following questions: 1. May petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?”

The venerable Lyle Denniston at SCOTUSblog summed up the grant this way:

In the environmental case added to the decision docket, Sackett, et al., v. EPA, et al. (10-1062), a couple had been found to have filled in a wetland without a federal permit, when they graded a small lot on which they planned to build a house in a residential subdivision near Priest Lake, Idaho.  The couple was ordered by EPA to fill in the lot, replace lost vegetation, and monitor the fenced-off site for three years.  In their petition to the Courts, the Sacketts contended that they had no chance to contest the compliance order, and asked the Court to rule that they had a right to test the order in federal court.   The Justice Department opposed review of their case, noting that every federal Circuit Court to face the issue had ruled against allowing pre-enforcement lawsuits, limiting enforcement to cases in which EPA chose to sue.  The Court granted review nevertheless.

In granting review, the Court said it would resolve two questions: whether the couple could seek pre-enforcement review in court of the EPA order under the Administrative Procedures [It's singular, Lyle] Act, and, if they could not, whether that would violate their right to constitutional due process.

As an aside, the court also granted cert in Sandy Williams v. Illinois (10-8505). I’m no Supreme Court expert, but it’s not often that a petitioner proceeding  in forma pauperis gets his/her petition granted.

Sackett links

SCOTUSblog’s link to Sackett  cert briefs

SCOTUSBlog’s Sackett page

Pacific Legal Foundation news release (6/28/11)

Ninth Circuit decision

ESWR Rapanos page

NY Times/Greenwire coverage

Links from SCOTUSBlog;

Amicus Briefs in Support of the Petitioners

Amicus Briefs in Support of Neither Party

Certiorari-stage documents

  • Petitioners’ reply (unavailable)
  • Amicus brief of the Center for Constitutional Jurisprudence et al. (unavailable)
  • Amicus brief of the American Civil Rights Union (unavailable)
  • Amicus brief of the National Association of Home Builders et al. (unavailable)

 

 

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