Court to Weigh Private Interests' Intervention in NEPA Disputes

A federal appeals court will consider next week whether to abandon a legal rule that makes it difficult for private interests to intervene in environmental disputes in the Western states. Industry and recreational groups are pushing hard for the change, while environmentalists are largely staying silent. At issue is the San Francisco-based 9th U.S. Circuit Court of Appeals' "federal defendant rule," which prevents anyone other than the federal government from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment. The argument in Wilderness Society v. U.S. Forest Service in Pasadena on Monday will be before an en banc panel of 11 judges, rather than the usual three-judge panel, because the court is considering whether to overturn one of its precedents. The rule, unique to the 9th Circuit, irks business and recreational interests in particular. They feel their voices are not always heard when environmental groups file suit...more

Debate Continues Over Impact of Supreme Court's Whale Ruling on Enviros' Bids to Halt Projects

Almost two years ago, the Supreme Court ruled that the Navy could continue maneuvers off the coast of California despite concerns that the use of sonar could harm whales. Most of the commentary in the immediate aftermath of the 7-2 decision in Winter v. Natural Resources Defense Council focused on national security trumping environmental concerns. End of story. But the opinion, written by Chief Justice John Roberts, also had broader implications on the ability of environmentalists to persuade judges to grant preliminary injunctions, which have the effect of putting a stop to potential environmental damage before, from activists' perspective, it is too late. The impact would be felt especially in the nine Western states within the jurisdiction of the San Francisco-based 9th U.S. Circuit Court of Appeals, which was the court that had ruled in favor of NRDC in the whale case and hears a large number of environmental cases. The whale case came to the Supreme Court because the NRDC had persuaded a federal judge in the Central District of California to impose restrictions on Navy activity because of the potential harm to whales and other marine mammals. On appeal, the 9th Circuit agreed to keep the preliminary injunction in place, a decision the Supreme Court reversed. At the time of the November 2008 ruling, experts said the case would make it harder for environmental groups to get preliminary injunctions because the Supreme Court stated that there needs to be "the likelihood of irreparable harm." Previously, in the 9th Circuit, litigants only had to show the "possibility" of irreparable harm...more

SIERRA CLUB v. KIMBELL

No. 09-1639.
United States Court of Appeals, Eighth Circuit.
Submitted: February 9, 2010.
Filed: October 18, 2010.

COLLOTON, Circuit Judge.
In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the "forest plan"). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, "Sierra Club") sought judicial review of the forest plan in the district court. As relevant to this appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h. In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness ("BWCAW"). The district court2 determined that the Forest Service had considered adequately the impacts on the nearby wilderness area in accordance with NEPA, and therefore granted the agency's motion for summary judgment. Sierra Club v. Kimbell,595 F.Supp.2d 1021 (D. Minn. 2009). Sierra Club appeals, and we affirm.

Read the opinion here.

BLM Declares Their Land “Non-Public Forums”

In a response filed in a Nevada court on October 14th the Bureau Of Land Management (BLM) revealed that “herd management areas” and perhaps other areas of public lands at their unilateral choosing can, be considered by the government “non-public forums.” This is interesting news to the rest of us who have considered these lands public, open and freely accessible. It would seem, according to Ken Salazar, Bob Abbey and those they lead at the Department of Interior and BLM, the we, the press, and by extension, you the public have no have no right to know how the government manages your public resources. The government is controlling the content of the information that reaches you, the public, by prohibiting journalists who may portray them in an unflattering light...more

Western Watersheds Project v. IBLA

WESTERN WATERSHEDS PROJECT, Plaintiff-Appellant,
v.
INTERIOR BOARD OF LAND APPEALS, BUREAU OF LAND MANAGEMENT, AND UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants-Appellees.

No. 09-35708.

United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 1, 2010—Seattle, Washington.
Filed October 12, 2010.

OPINION

HAWKINS, Senior Circuit Judge.

In this appeal, which involves the interplay between the issuance or renewal of Bureau of Land Management ("BLM") grazing permits and the fee-shifting provisions of the Equal Access to Justice Act ("EAJA"), Western Watersheds Project ("Western Watersheds") appeals the summary judgment determination that EAJA fees were not available to Western Watersheds because its environmental claims were brought in a grazing permit renewal proceeding. We agree with the district court's reasoning and affirm.

Read the entire Opinion here.

U.S. v. WILLIAMS

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LINDA L. WILLIAMS, Defendant-Appellant.
No. 09-1541.
United States Court of Appeals, Tenth Circuit.
Filed September 27, 2010.
Before TACHA, LUCERO, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT^{[ 1 ]}

MICHAEL R. MURPHY, Circuit Judge.
Linda L. Williams appeals from the district court's order affirming her conviction following a trial before a magistrate judge for damaging property of the National Forest Service. She argues that the testimony of a Forest Service police officer identifying her as the person seen on a surveillance video destroying a trailhead sign should not have been admitted at trial. We affirm.

BACKGROUND

Williams owns two unpatented mining claims comprising forty acres in the Uncompahgre National Forest in Ouray County, Colorado.^{[ 2 ]} Over the course of several years, Williams and the Forest Service clashed over Williams's resistance to inspections of her mining claims and her repeated attempts to block public access to the area, a popular hiking destination, including placing a locked gate on an access road and threatening to set "booby-trap[s]," ROA, Vol. 5 at 97. Williams also clashed with a private group that restores trails in the area, threatening a citizen's arrest of some of its members who were monitoring vandalism to trailhead signs. Ultimately, Williams was arrested and charged in a thirteen-count complaint with a variety of offenses, including damaging a trailhead sign. During a jury trial conducted by a magistrate judge, Forest Service police officer Jon Closson testified that he had interacted with Williams about six times over the past three years. He indicated that in April 2004, he installed a surveillance camera to monitor a newly erected wooden sign at a trail near Williams's mining claims. When he returned to the site several days later, he found the sign "smashed almost in half." Id. at 106...more

HAPNER v. TIDWELL

No. 09-35896.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 4, 2010—Seattle, Washington.
Filed September 15, 2010.

OPINION

W. FLETCHER, Circuit Judge.

The United States Forest Service (the "Service") proposed the Smith Creek Project (the "Project") in the Gallatin National Forest to reduce the risk of severe wildfire, to reduce the risk of insect infestation and disease, and to promote habitat diversity. Sharon Hapner, Alliance for Wild Rockies, and Native Ecosystems Council (collectively "Plaintiffs") challenged the Project, contending that it violated the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA"). After a remand, the district court granted summary judgment to the Service on all of Plaintiffs' claims.

We affirm the district court in almost all respects. We reverse on only one claim, holding that the Project violates NFMA by failing to comply with the elk-cover requirement contained in the Gallatin National Forest Plan...

Read the entire opinion here.

How green is Judge Molloy?

One of the West's most controversial federal judges -- Don Molloy in Missoula, Mont. -- was at it again Aug. 5. Ruling on two lawsuits filed by 14 environmental groups, Molloy ordered the U.S. Fish and Wildlife Service to restore full Endangered Species Act protections for the 1,300-plus gray wolves in Idaho and Montana. By doing so, the judge fueled the perception in some camps that he's a green activist. Molloy also ruled for environmentalists in an important case last year, ordering the feds to restore protections for Yellowstone's grizzly bears because of the decline of whitebark pines, a primary food source. Four months ago, Molloy ordered the U.S. Forest Service not to use helicopters to spray weeds in grizzly habitat in northwest Montana because the noise might cause the bears to flee. A right-wing Oregon blogger condemned Molloy as a "nutzoid" greenie after those rulings. It's a refrain that began shortly after Democratic President Clinton appointed Molloy in 1995. Over the years, Molloy has blocked dozens of timber sales, reined in backcountry snowmobilers, protected wilderness-study areas, upheld Montana's ban on game farms that might spread wildlife diseases -- you get the drift. Molloy -- who gets a lot of environmental cases simply because of his location -- still rules against environmentalists more than half the time, says one lawyer who's often in his court. Another frequent lawsuit-filer quickly names five timber sales that Molloy approved over his objections; all five were ultimately blocked by an appeals court...more

Environmental Law's Greatest Tragedy

Like many others, I think the nation’s system of environmental laws and regulations, both at the state and federal level, is broken and its problems need to be addressed. One of the biggest problems can be summed up in two words: “agency deference.” “Agency deference” is the judicial doctrine that precludes judges from revisiting administrative agency decisions (s/a those made by the Bureau of Land Management, the Fish and Wildlife Service, and the Forest Service) except in the most extreme circumstances. It’s also the doctrine that has made it nearly impossible for there to be any independent and dispassionate review of decisions made by federal agencies that have become more like industry enablers than hard-nosed neutral regulators. The seminal case outlining the doctrine of agency deference is the 1984 decision in Chevron v. NRDC. In that case, the U.S. Supreme Court explicitly outlined the “agency deference” doctrine. The agency deference doctrine essentially stakes out the territory of administrative agencies and courts in preventing and remediating pollution. The Supreme Court essentially determined that a court’s role in engaging the environmental law framework is very limited; the primary responsibility for environmental protection rests with administrative agencies. When a court reviews an agency determination about an environmental matter or an interpretation of an environmental statute or regulation, it must assume an exceptionally deferential posture, only re-visiting the agency decision if it’s “arbitrary”, “capricious” or “manifestly contrary to the statute” – vague concepts that readily give judges the opportunity to evade deciding a difficult issue because they’re perceived as too technical or complicated...more

MONSANTO CO. v. GEERTSON SEED FARMS

MONSANTO CO. v. GEERTSON SEED FARMS ( No. 09-475 )
570 F. 3d 1130, reversed and remanded.

Syllabus

________________________________________
No. 09–475. Argued April 27, 2010—Decided June 21, 2010 _______________________________________

The Plant Protection Act (PPA) provides that the Secretary of the Department of Agriculture may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.” 7 U. S. C. §7711(a). Pursuant to that grant of authority, the Animal and Plant Health Inspection Service (APHIS) promulgated regulations that presume genetically engineered plants to be “plant pests”—and thus “regulated articles” under the PPA—until APHIS determines otherwise. However, any person may petition APHIS for a determination that a regulated article does not present a plant pest risk and therefore should not be subject to the applicable regulations. APHIS may grant such a petition in whole or in part.
In determining whether to grant nonregulated status to a genetically engineered plant variety, APHIS must comply with the National Environmental Policy Act of 1969 (NEPA), which requires federal agencies “to the fullest extent possible” to prepare a detailed environmental impact statement (EIS) for “every … major Federal actio[n] significantly affecting the quality of the human environment.” 42 U. S. C. §4332(2)(C). The agency need not complete an EIS if it finds, based on a shorter statement known as an environmental assessment (EA), that the proposed action will not have a significant environmental impact.
This case involves a challenge to APHIS’s decision to approve the unconditional deregulation of Roundup Ready Alfalfa (RRA), a variety of alfalfa that has been genetically engineered to tolerate the herbicide Roundup. Petitioners are the owner and the licensee of the intellectual property rights to RRA. In response to petitioners’ deregulation request, APHIS prepared a draft EA and solicited public comments on its proposed course of action. Based on its EA and the comments submitted, the agency determined that the introduction of RRA would not have any significant adverse impact on the environment. Accordingly, APHIS decided to deregulate RRA unconditionally and without preparing an EIS. Respondents, conventional alfalfa growers and environmental groups, filed this action challenging that decision on the ground that it violated NEPA and other federal laws. The District Court held, inter alia, that APHIS violated NEPA when it deregulated RRA without first completing a detailed EIS. To remedy that violation, the court vacated the agency’s decision completely deregulating RRA; enjoined APHIS from deregulating RRA, in whole or in part, pending completion of the EIS; and entered a nationwide permanent injunction prohibiting almost all future planting of RRA during the pendency of the EIS process. Petitioners and the Government appealed, challenging the scope of the relief granted but not disputing that APHIS’s deregulation decision violated NEPA. The Ninth Circuit affirmed, concluding, among other things, that the District Court had not abused its discretion in rejecting APHIS’s proposed mitigation measures in favor of a broader injunction.
Held:
1. Respondents have standing to seek injunctive relief, and petitioners have standing to seek this Court’s review of the Ninth Circuit’s judgment affirming the entry of such relief. Pp. 7–14.
(a) Petitioners have constitutional standing to seek review here. Article III standing requires an injury that is (i) concrete, particularized, and actual or imminent, (ii) fairly traceable to the challenged action, and (iii) redressable by a favorable ruling. See Horne v. Flores , 557 U. S. ___, ___. Petitioners satisfy all three criteria. Petitioners are injured by their inability to sell or license RRA to prospective customers until APHIS completes the EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court. Respondents nevertheless contend that petitioners lack standing because their complained-of injury is independently caused by a part of the District Court’s order that petitioners failed to challenge, the vacatur of APHIS’s deregulation decision. That argument fails for two independent reasons. First, one of the main disputes between the parties throughout this litigation has been whether the District Court should have adopted APHIS’s proposed judgment, which would have replaced the vacated deregulation decision with an order expressly authorizing the continued sale and planting of RRA. Accordingly, if the District Court had adopted APHIS’s proposed judgment, there would still be authority for the continued sale of RRA notwithstanding the District Court’s vacatur, because there would, in effect, be a new deregulation decision. Second, petitioners in any case have standing to challenge the part of the District Court’s order enjoining a partial deregulation. Respondents focus their argument on the part of the judgment that enjoins planting, but the judgment also states that before granting the deregulation petition, even in part, the agency must prepare an EIS. That part of the judgment inflicts an injury not also caused by the vacatur. Pp. 7–11.
(b) Respondents have constitutional standing to seek injunctive relief from the complete deregulation order at issue here. The Court disagrees with petitioners’ argument that respondents have failed to show that any of them is likely to suffer a constitutionally cognizable injury absent injunctive relief. The District Court found that respondent farmers had established a reasonable probability that their conventional alfalfa crops would be infected with the engineered Roundup Ready gene if RRA were completely deregulated. A substantial risk of such gene flow injures respondents in several ways that are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. Moreover, those harms are readily attributable to APHIS’s deregulation decision, which gives rise to a significant risk of gene flow to non-genetically-engineered alfalfa varieties. Finally, a judicial order prohibiting the planting or deregulation of all or some genetically engineered alfalfa would redress respondents’ injuries by eliminating or minimizing the risk of gene flow to their crops. Pp. 11–14.
2. The District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the planting of RRA pending the agency’s completion of its detailed environmental review. Pp. 14–22.
(a) Because petitioners and the Government do not argue otherwise, the Court assumes without deciding that the District Court acted lawfully in vacating the agency’s decision to completely deregulate RRA. The Court therefore addresses only the injunction prohibiting APHIS from deregulating RRA pending completion of the EIS, and the nationwide injunction prohibiting almost all RRA planting during the pendency of the EIS process. P. 14.
(b) Before a court may grant a permanent injunction, the plaintiff must satisfy a four-factor test, demonstrating: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L. L. C. , 547 U. S. 388 . This test fully applies in NEPA cases. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___. Thus, the existence of a NEPA violation does not create a presumption that injunctive relief is available and should be granted absent unusual circumstances. Pp. 15–16.
(c) None of the four factors supports the District Court’s order enjoining APHIS from partially deregulating RRA during the pendency of the EIS process. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregulation, for at least two reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate preliminary relief. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respondents any injury at all; if its scope is sufficiently limited, the risk of gene flow could be virtually nonexistent. Indeed, the broad injunction entered below essentially pre-empts the very procedure by which APHIS could determine, independently of the pending EIS process for assessing the effects of a complete deregulation, that a limited deregulation would not pose any appreciable risk of environmental harm. Pp. 16–23.
(d) The District Court also erred in entering the nationwide injunction against planting RRA, for two independent reasons. First, because it was inappropriate for the District Court to foreclose even the possibility of a partial and temporary deregulation, it follows that it was inappropriate to enjoin planting in accordance with such a deregulation decision. Second, an injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. See, e.g. , Weinberger v. Romero-Barcelo , 456 U. S. 305 . If, as respondents now concede, a less drastic remedy (such as partial or complete vacatur of APHIS’s deregulation decision) was sufficient to redress their injury, no recourse to the additional and extraordinary relief of an injunction was warranted. Pp. 23–24.
(e) Given the District Court’s errors, this Court need not address whether injunctive relief of some kind was available to respondents on the record below. Pp. 24–25.
570 F. 3d 1130, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a dissenting opinion. BREYER, J., took no part in the consideration or decision of the case.

Big Brother eyes your freedom to drink milk

A legal brief filed in a federal court dispute over the purchase and use of raw milk contends the court ultimately will determine "whether the people control the government, or whether the government controls the people." "The decision of this court will either ensure that people have fundamental rights endowed to them by their Creator, or that the people have no rights except those that are conferred upon them bygovernment," attorneys for the Farm-to-Consumer Legal Defense Fund have argued in their newest brief, which opposes the government's demand that the case be dismissed. "Our research shows that this nation has a long history of consuming raw dairy products and that FDA's prohibition against taking raw dairy for human consumption across state lines runs counter to that national history," said fund President Pete Kennedy. The brief argues, contrary to allegations by the FDA, everyone has the right to travel across state lines with raw dairy products in their possession, that everyone has the right to consume the foods of their choice, that parents have the right to feed their children the foods of their choice and that all have the right to be responsible for their own health...more

Not so say the feds. In their brief they assert:

"There is no 'deeply rooted' historical tradition of unfettered access to foods of all kinds," states the document signed by U.S. Attorney Stephanie Rose, assistant Martha Fagg and Roger Gural, trial attorney for the U.S. Department of Justice. "Plaintiffs' assertion of a 'fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families' is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish," thegovernment has argued.

Current FDA regulations basically ban taking raw milk across state lines, even for your own consumption.

Court tosses $1.25 million award in ranching feud

Some fences make good neighbors, but others lead to ranching feuds that grow so bitter, the Texas Supreme Court has to step in. This legal issue harkens to the 2000 drought, when the Colorado River slowed to a trickle, allowing 13 head of Randy Reynolds' cattle to walk along the dry riverbed and onto an adjacent San Saba County ranch, where they were rounded up and sold for $5,327 without Reynolds' knowledge. His neighbor, Thomas Bennett Jr., avoided spending up to 10 years in jail when he was acquitted of felony theft charges. But a civil jury found that Bennett's actions amounted to cattle theft and ordered him to pay his neighbor $5,327 for the sold cattle. The jury also slapped Bennett with $1.25 million in punitive damages for "reprehensible" behavior that included allegations of attempted blackmail, bribery, witness tampering and doctored evidence by Bennett or associates, according to testimony and court documents. The 3rd Court of Appeals in Austin later approved the huge punitive damages award, concluding that "Texans know better than to steal cattle and then attempt to subvert the legal system to cover their tracks, and can fairly expect...severe penalties for such acts."...more

Ken Salazar Gets a Kick in the You-Know-What

For all his John Wayne rhetoric on the BP oil spill, President Obama has failed to administer a swift kick to the ample, deserving rump of Interior Secretary Ken Salazar. No matter: Federal judge Martin Feldman has now done the job the White House won’t do. In a scathing ruling issued Tuesday afternoon, New Orleans–based Feldman overturned the administration’s radical six-month moratorium on deepwater drilling — and he singled out Salazar’s central role in jury-rigging a federal panel’s scientific report to bolster flagrantly politicized conclusions. In a sane world, Salazar’s head would roll. In Obama’s world, he gets immunity. The suit challenging Obama’s desperately political ban was filed by Louisiana rig company Hornbeck Offshore Services, which sued on behalf of all the “small people” in the industry whose economic survival is at stake. As the plaintiffs’ lawyer argued in court, the overbroad ban promised to be more devastating to Gulf workers than the spill itself. “This is an unprecedented industry-wide shutdown. Never before has the government done this,” attorney Carl Rosenblum said. Scientists who served on the committee expressed outrage upon discovering earlier this month that Salazar had — unilaterally and without warning — inserted a blanket drilling-ban recommendation into their report. Allow me to be more injudicious: Salazar lied. Salazar committed fraud. Salazar sullied the reputations of the experts involved and abused his authority...more