Case Summaries

Environmental Law

[09/03] Sheffield v. City of Fort Thomas
In plaintiff's suit against a city and various city officials in their official and individual capacities, claiming that several of the city's ordinances related to controlling deer population, violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations, district court's judgment in affirmed in part, reversed in part and remanded where: 1) the Bow-and-Arrow Ordinance is not preempted; 2) the Field-Dressing Ordinance is not preempted by Chapter 150; 3) although 301 Ky. Admin. Regs. 2:-015 has preemptive force and the Deer-Feeding Ordinance is preempted insofar as it purports to ban deer-feeding within the curtilage of Fort Thomas homes, the ordinance is not preempted in its entirety, as it is a legitimate exercise of municipal authority as applied to deer-feeding outside the curtilage of the home; 4) plaintiff's substantive due process challenge to the Bow-and-Arrow Ordinance is rejected; and 5) the Deer-Feeding Ordinance is not unconstitutionally vague.

[09/01] Western Watersheds Project v. Kraayenbrink
In a National Environmental Policy Act (NEPA) challenge to eighteen amendments to the Bureau of Land Management's (BLM) grazing regulations, partial summary judgment for plaintiffs is affirmed in part where: 1) the BLM failed to address concerns raised by its own experts, the Fish and Wildlife Service, the EPA, and state agencies; and 2) there was resounding evidence from agency experts that the eighteen amendments to the BLM's grazing regulations may affect listed species and their habitat. However, the order is vacated in part where the district court failed to consider plaintiffs' Federal Land Policy and Management Act claim under the framework and with the deference set forth in Chevron.

[08/31] Cotchett, Pitre & McCarthy v. Universal Paragon Corp.
In defendant's suit against a law firm, claiming that an arbitrator's award of $7,554,149.13 in attorney fees and expenses for the law firm, related to its representation of defendant in an underlying complex environmental litigation, is unconscionable and violates public policy, superior court's affirmance of the award is affirmed as, assuming that defendant's claim of unconscionability is subject to judicial review as a predicate for determining whether the arbitration award violates public policy, the claim is rejected on the merits as neither the fee agreement nor the award actually issued by the arbitrator is unconscionable under rule 4-200 of the Rules of Professional Conduct.

[08/25] Northern Cal. River Watch v. Wilcox
In an action claiming that defendants violated the Endangered Species Act (ESA) by digging up and removing endangered plant species, summary judgment for defendants is affirmed where "areas under Federal jurisdiction" in section 9 of the ESA did not include the privately-owned land at issue here.

[08/20] Modesto Irrigation Dist. v. Gutierrez
In an action by irrigation districts challenging the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley, summary judgment for defendant is affirmed where: 1) Section 1532(16) of the Endangered Species Act did not require that interbreeding organisms be placed in the same distinct population segment; and 2) the government provided an adequate rationale for the change in policy.

[08/18] US v. Agosto-Vega
Conviction of a company in San Juan, Puerto Rico, and its owner and principal officer for violating criminal provisions of the Clean Water Act is vacated where: 1) district court committed a structural error by excluding the public from the courtroom during the selection of the jury; and 2) the government proved the charges against defendants by sufficient evidence to establish their guilt beyond a reasonable doubt.

[08/17] Northwest Env. Def. Ctr. v. Brown
In an action claiming that defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers, dismissal of the action is reversed where the discharges were not exempted from the National Pollutant Discharge Elimination System permitting process by the Silvicultural Rule, 40 C.F.R. section 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity.

[08/17] US v. Magnesium Corp. of Am.
In an action by the U.S. claiming that defendants' handling of wastes failed to comply with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act (RCRA), summary judgment for defendants is vacated where, because the EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which defendants sought to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations.

[08/13] League of Wilderness Defenders v. Allen
In an action alleging that the Five Buttes Project, which authorized certain logging activities, violated the National Forest Management Act and the National Environmental Policy Act, summary judgment and an injunction in favor of plaintiff-conservation groups are reversed where: 1) the Forest Service's alleged admissions about possible harms actually described the balancing of risks that the Forest Service was required to undertake, and such balancing was entirely appropriate under the Northwest Forest Plan; and 2) the Forest Service adequately considered and responded to alternative views about the Project's potential environmental consequences.

[08/12] Great Rivers Habitat Alliance v. FEMA
In an action against FEMA claiming that a levee did not meet FEMA's requirements and FEMA erred by granting approval for it, dismissal of the complaint is affirmed where: 1) plaintiffs failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act; and 2) the judicial review provisions of the Administrative Procedure Act did not apply.

[08/12] Sierra Club v. Otter Tail Power Co.
In a Clean Air Act (CAA) citizen suit alleging that defendants violated the CAA by failing to obtain permits for a series of modifications to a power plant and by exceeding applicable emission limits, dismissal of the action is affirmed where: 1) the CAA and related regulations prohibited only construction or modification of a facility without a Prevention of Significant Deterioration (PSD) permit and best available control technology, and thus plaintiff's PSD civil penalty claims were time barred; and 2) because plaintiff's PSD civil penalty claims were barred by the statute of limitations, the equitable remedies it sought under those causes of action were barred as well.

[08/10] Ebbetts Pass Forest Watch v. California Dep't of Forestry & Fire Prot.
In environmental groups' suit seeking to overturn California Department of Forestry and Fire Protection's (CDF) approval of three timber harvest plans for logging in Tuolumne County, claiming that CDF had not followed the law in approving the plans, trial court's denial of plaintiffs' request for attorney's fees following the California Supreme Court's finding in favor of the defendant is affirmed as the trial court did not abuse its discretion in denying attorney's fees as plaintiffs have failed to meet their burden to show they were successful within the meaning of section 1021.5 considering they did not receive a favorable judgment nor did they achieve their strategic objective of overturning the approval and halting timber operations until additional environmental assessments were performed.

[08/09] Home Builders' Assn. of N. Cal. v. US Fish & Wildlife Serv.
In a challenge to the designation by the U.S. Fish and Wildlife Service (FWS) of about 850,000 acres of land as critical habitat for fifteen endangered or threatened vernal pool species, summary judgment for defendants is affirmed where: 1) Gifford Pinchot said nothing about how many Primary Constituent Elements must be included in an area for it to be classified as critical habitat; 2) there was no reason why FWS could not determine what elements were necessary for conservation without determining exactly when conservation would be complete; and 3) plaintiff failed to suggest a method that might have produced a more precise delineation of the protected area.

[08/06] Howmet Corp. v. EPA
In an action claiming that the EPA's "spent material" hazardous waste regulation violated the Administrative Procedure Act, summary judgment for defendant is affirmed where: 1) the text of the EPA's definition was simply ambiguous with respect to whether the court should adopt plaintiff's "multiple, original purposes" approach to determining when a material is "spent," or whether the court should, instead, adopt the "original use"-based purpose test advanced by the EPA; and 2) the EPA's explanation of the definition of spent material in its Guidance Manual should have put plaintiff on notice of the EPA's interpretation of its "spent material" definition.

[08/04] US ex rel. Lemmon v. Envirocare of Utah, Inc.
In a False Claims Act action against a government contractor by one of its former employees alleging improper hazardous-and-radioactive-waste-disposal, the dismissal of the complaint is reversed where: 1) implied false certification claims did not involve -- let alone require -- an explicit certification of regulatory compliance; and 2) to sustain their express certification claims, plaintiffs needed only to have alleged, with sufficient factual basis, that the requests contained a false statement and that the statement was material to the government's decision to pay.

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