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Weekly Update Volume 32, Issue 4

02/04/2002

LITIGATION

Note: The cases listed are available from the ELR Document Service.

JURISDICTION, QUIET TITLE, RIVER MOVEMENTS:

The Ninth Circuit held that an Arizona district court erred in determining that it lacked jurisdiction to hear a quiet title action concerning land along the Colorado River and in fixing title to the land on the basis of river movements that occurred prior to 1905 when the United States patented the disputed lands to the state of California. The United States brought an action against private landowners on behalf of the Fort Mojave Indian Tribe asserting that the land at issue attached by the natural process of accretion to land that the United States holds in trust for the tribe. The private landowners, successors to California's 1905 patent, claimed that the river changed course by avulsive movement prior to 1905, establishing the boundaries for the patent. The district court held that it lacked jurisdiction because the land became part of the state of California due to avulsion, but nonetheless found that the landowners held title to the disputed land. Although federal district courts' jurisdiction over actions concerning real property is generally coterminous with the states' political boundaries, the Interstate Compact Defining the Boundary Between the States of Arizona and California fixed the boundary between Arizona and California for political purposes in the area encompassing the disputed property along the Colorado River, wherever it may run. Because the disputed property now lies on the east side of the Colorado River, the Boundary Compact positions the disputed property within Arizona for political purposes. Thus, the district court had jurisdiction. However, while the Boundary Compact established the boundary between Arizona and California for political purposes, it did not affect private property titles. The proper analytical starting point for determining ownership of the lands is 1905 when the United States patented the disputed property to California. It was not until 1905 that California held legal title to the disputed property and, therefore, river movements before 1905 are not relevant to fixing title. Thus, because the district court's analysis should have started with the patent date and not with pre-1905 avulsive river movements, the case was remanded. United States v. Byrne, No. 00-16008 (9th Cir. Jan. 28, 2002) (12 pp.).

TAKINGS, SPECIAL ASSESSMENT:

The Seventh Circuit affirmed a district court holding that a development company failed to exhaust adequate state remedies in challenging as a taking a special assessment levied by a village. In 1980, the village entered an agreement to construct a local sewer system and levied reserve capacity assessments to fund the project. In 1996, the development company obtained property in the village. It then entered into an agreement with the village under which the developer paid the village $137,000 for the 1980 reserve capacity assessment. Because the village had already received sufficient funds to pay for the sewer project for which the assessment was originally levied, the developer filed suit claiming that the village, acting under color of law, had taken the developer's property in violation of the U.S. and Wisconsin Constitutions and 42 U.S.C. §1983. However, a state statute that authorizes local municipalities to levy and collect special assessments for specific public works projects provides claimants with the sole remedy for any complaint regarding a municipality's collection assessments. Additionally, the remedies afforded under this statute are adequate. Moreover, the developer failed to pursue its state remedy in a timely fashion. The developer, therefore, waived its right to assert a claim for just compensation under either state or federal law. Harbours Pointe of Nashotah, LLC v. Village of Nashotah, No. 01-1359 (7th Cir. Jan. 28, 2002) (7 pp.).

TAX LAW, OZONE-DEPLETING CHEMICALS (ODCs):

The Sixth Circuit affirmed a district court holding that a taxpayer who purchased an ODC from China and then processed and sold the ODC to customers in the United States is subject to federal excise taxes. The taxpayer cannot take advantage of an exemption that exempts from tax ODCs diverted or recovered in the United States as part of a recycling process. Because the removal of the ODC from its shipping containers in the United States did not occur during the servicing of machinery or in anticipation of disposal, the taxpayer did not recover the ODC in the United States, and, therefore, does not qualify for the exemption. Additionally, the taxpayer is not entitled to an exemption that provides that chemical mixtures should be taxed when created and not upon subsequent sale or use. The ODC at issue here was created in another country and is, therefore, an imported taxable product for tax purposes. The mixture exemption applies only to mixtures created within the United States. F.R.C. International, Inc. v. United States, No. 98-4444 (6th Cir. Jan. 30, 2002) (3 pp.).

ZONING, SIGN ORDINANCE, FIRST AMENDMENT:

The Second Circuit affirmed a district court holding that a village's sign ordinance did not violate the First Amendment as it contained permissible restrictions on the number, size, and location of signs on residential property, the duration for which signs may remain on residential property, and the presence of off-site commercial advertising. The village enacted an ordinance prohibiting the use of commercial signs or any form of advertising on residential property other than professional signs, which consisted of the signs of doctors, lawyers, accountants, engineers, brokers, and any other major profession licensed by the state. A group representing real estate licensees brought this suit claiming that the ordinance violated the First Amendment. The district court correctly held, however, that on its face, the ordinance directly advances the village's stated interests in aesthetics and safety. Additionally, the ordinance is not more extensive than necessary to serve the village's interest in aesthetics and safety. Further, nothing on the face of the ordinance prohibits the real estate licensees from displaying real estate signs or otherwise conveying their message. Long Island Board of Realtors, Inc. v. Incorporated Village of Massapequa Park, No. 01-7329 (2d Cir. Jan. 24, 2002) (11 pp.).

EXCESSIVE FORCE, QUALIFIED IMMUNITY:

The Ninth Circuit held that two police officers' use of pepper spray on activists' eyes and faces during three peaceful protests constituted an excessive use of force in violation of the activists' Fourth Amendment rights and that the officers did not have qualified immunity. During three nonviolent protests against the logging of ancient redwood trees in Headwaters Forest, activists linked themselves together with self-releasing, lock-down devices known as black bears. At the three protests, the police officers used pepper spray on the activists and then refused to give them water to wash out their eyes in order to force the activists to release themselves from the black bears. The district court held that the officers had qualified immunity and were not liable. After the Ninth Circuit reversed that decision, the U.S. Supreme Court granted certiorari, vacated the court's judgment, and remanded the case for further consideration in light of Saucier v. Katz, 533 U.S. 194 (2001), a case involving qualified immunity. Nevertheless, the Ninth Circuit reaffirmed its previous conclusion that the officers were not entitled to qualified immunity. Viewing the evidence in the light most favorable to the activists, a rational juror could conclude that the use of pepper spray against the activists constituted excessive force and that the officers were liable for the activists' unconstitutional injuries. Additionally, it would be clear to a reasonable officer that using pepper spray against the activists was excessive under the circumstances. The pepper spray was unnecessary to subdue, remove, or arrest the activists; the officers could safely and quickly remove the activists while in black bears from protest sites; and the officers could remove the black bears with electric grinders in a matter of minutes and without causing pain or injury to the activists. Therefore, the case was remanded to the district court. Headwaters Forest Defense v. County of Humboldt, No. 98-17250 (9th Cir. Jan. 30, 2002) (13 pp.).

SEARCH AND SEIZURE, FOURTH AMENDMENT:

A district court held that although conservation officers conducted a search and seizure without a warrant and within the curtilage of individuals' home, the officers enjoyed qualified immunity. The individuals own an undeveloped tract of 50 acres that abuts a state park in which no hunting is allowed. The property consists of mostly wooded area, but also contains a clearing with a small cabin, a fire pit, outhouses, and a hangpole about 25 yards from the cabin used to hang dear carcasses. While on the job near the individuals' property, the officers heard rifle shots and upon investigation found the individuals with untagged dead deer. The officers questioned the individuals, the entire time remaining near the hangpole. After the questioning, the officers charged them with statutory violations and seized the dead deer and two guns. The individuals then filed suit claiming that the officers were within the curtilage of the individuals' home and therefore needed probable cause and a warrant for the search, seizure, and arrests. Under the circumstances, the officers did not produce sufficient evidence to eliminate a genuine issue of material fact whether the area around the hangpole is within the curtilage of the individuals' cabin. The hangpole is close enough to the cabin to support an inference that it should be treated as part of the home; the woods surrounding the structure serve as a natural enclosure of the clearing; the uses of the hangpole area could be found to be sufficiently associated with domestic life and the privacies of the home in the camp-like setting at issue here; and although the individuals did not take steps to protect the area from observation by people passing by, their lack of effort would not preclude reasonable jurors from finding that the hangpole stood within the curtilage around the structure. However, even though reasonable jurors could conclude that the officers' activities took place within the curtilage of the home, the officers enjoyed qualified immunity. The officers did not take any actions that were unreasonable in light of established law. Upon entrance to the clearing, there was no indication that the hangpole was within the curtilage of the home. Additionally, it was objectively reasonable for the officers to believe that the area they entered was not curtilage and that they were therefore entitled to enter and search it without probable cause and a warrant. Thus, the officers' motion for summary judgment was granted. Hart v. Myers, No. 3:97CV2574(SRU) (D. Conn. Jan. 23, 2002) (Underhill, J.). (23 pp.).

INSURANCE COVERAGE, "OCCURRENCE":

The Washington Supreme Court held that because the owner of an electrical transformer manufacturing and repair business knew of PCB contamination on its property before purchasing comprehensive general liability (CGL) insurance policies, property damage stemming from that contamination could not constitute an occurrence and trigger coverage under the policies. In 1976, EPA took soil samples from the property and discovered PCB contamination. The owner of the property was informed of the contamination but did not clean the site. The following year, the owner purchased a CGL policy. The property was later sold, and after the subsequent owners discovered and cleaned up the PCB contamination, they brought suit against the original owner for compensation. The original owner's insurance company properly denied coverage for the cleanup. There was no genuine issue of material fact as to when EPA notified the original owner of the presence of PCBs. The PCB contamination constitutes property damage as defined in the policy, and the original owner's knowledge of the PCBs predated its purchase of the policies. Thus, regardless of when the original owner became liable to the subsequent owners, the property damage was not unexpected from the original owner's standpoint, and, therefore, there was no occurrence triggering coverage under the policies. Additionally, the insurance companies did not deny the original owner coverage for the subsequent owners' suit in bad faith or in violation of the Consumer Protection Act. Overton v. Consolidated Insurance Co., No. 70562-3 (Wash. Jan. 17, 2002) (9 pp.).

INSURANCE, DUTY TO DEFEND, POLLUTION EXCLUSION CLAUSES:

A Louisiana appellate court held that an insurance company must defend a waste water treatment impoundment facility against claims filed by individuals living near the facility after a breakdown caused the release of substances and noxious odors. The insurer failed to meet its burden of proving that a total pollution exclusion clause relieved the insurer of its duty to defend the facility. Similarly, the terms of another exclusion clause in the policy regarding waste or disposal sites do not unambiguously apply to the facility at issue here. There are no allegations that the facility is a waste or disposal site as stated in the policy, and the exclusion clause does not contain a definition of the term "waste." The fact that "waste" is defined as "nuclear waste" in another exclusion clause simply creates ambiguity as to the term's meaning in the exclusion clause at issue. Further, two other exclusion clauses in the policy do not unambiguously exclude coverage for the individuals' alleged inconvenience, harm due to the increased presence of mosquitoes, or personal injury. Consequently, because the exclusions do not preclude every possibility of coverage, the insurer owes a duty of defense to the facility. In addition, the individuals' allegations and the insurer's claim of coverage exclusions create a conflict of interest that entitles the facility to assume control of the defense action and to select its own counsel. Smith v. Reliance Insurance Co. of Illinois, Nos. 01-CA-888 C et al. (La. Ct. App. Jan. 15, 2002) (19 pp.).

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register.

AIR:

  • EPA removed restrictions that were previously imposed on the use of certain substitutes for ozone-depleting substances under the Significant New Alternatives Policy program. 67 FR 4185 (1/29/02).

  • EPA announced the availability of the MOBILE6 motor vehicles emissions factor model for official use outside of California. 67 FR 4254 (1/29/02).

  • EPA announced the availability of a draft document entitled Proposed Methodology for Particulate Matter Risk Analyses for Selected Urban Areas. 67 FR 3897 (1/28/02).

  • EPA approved negative declarations submitted by Kansas, Missouri, and Nebraska certifying that there are no commercial and industrial solid waste incineration units subject to CAA §§111(d) and 129 in those states. 67 FR 4179 (1/29/02).

  • EPA approved a request for delegation of authority submitted by Philadelphia, Pennsylvania, to implement and enforce its hazardous air pollutant regulations that have been adopted by reference from the federal requirements set forth in the CFR. 67 FR 4181 (1/29/02).

  • EPA approved Maryland's request for delegation of authority to implement and enforce certain hazardous air pollutant regulations that have been adopted by reference from the federal requirements set forth in the CFR. 67 FR 4359 (1/30/02).
  • EPA approved a request for delegation of authority submitted by Allegheny County, Pennsylvania, to implement and enforce its hazardous air pollutant regulations that have been adopted by reference from the federal requirements set forth in the CFR. 67 FR 4363 (1/30/02).

HAZARDOUS & SOLID WASTE:

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Liberty Industrial Finishing site in Brentwood, New York. 67 FR 3898 (1/28/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Asbestos Dump Superfund site in Long Hill Township, New Jersey. 67 FR 3898 (1/28/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(h) in connection with the Metropolitan Mirror and Glass, Inc., Superfund site in Frackville, Pennsylvania. 67 FR 4430 (1/30/02).

  • EPA entered into a proposed administrative settlement under CERCLA §122(i) in connection with the Old Glenwood School Asbestos site in Glenwood, Washington. 67 FR 4430 (1/30/02).

  • EPA proposed to approve South Carolina's UST program for petroleum and hazardous substances. 67 FR 4225 (1/29/02).

SMCRA PROGRAM APPROVAL:

  • OSM proposed to remove an amendment to Kentucky's regulatory program under SMCRA. 67 FR 3847 (1/28/02).
  • OSM proposed to approve an amendment to West Virginia's surface mining regulatory program under SMCRA. 67 FR 4689 (1/31/02).

WILDLIFE:

  • EPA announced that it is considering whether to propose regulations to protect marine mammals in the wild from human activities that are directed at the animals and that have the potential to harass the animals. 67 FR 4379 (1/30/02)

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

THE CONGRESS

CHAMBER ACTION

  • H.R. 1913 (Native American lands; surface rights), which would require the valuation of nontribal interest ownership of subsurface rights within the boundaries of the Acoma Indian Reservation, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S186 (daily ed. Jan. 28, 2002).

  • H.R. 1937 (water resources), which would authorize the Secretary of the Interior to engage in certain feasibility studies of water resource projects in Washington state, was passed by the Senate, clearing the measure for the President. 148 Cong. Rec. S186 (daily ed. Jan. 28, 2002).

COMMITTEE ACTION

  • S. 950 (CAA) was reported by the Senate Committee on Environment and Public Works. S. Rep. No. 107-131, 147 Cong. Rec. S19342 (daily ed. Dec. 20, 2001). The bill would amend the CAA to address problems concerning methyl tertiary butyl ether.

BILLS INTRODUCED

  • S. 1894 (Graham, D-Fla.) (Biscayne National Park) would direct the Secretary of the Interior to conduct a special resource study to determine the national significance of the Miami Circle site in Florida as well as the suitability and feasibility of its inclusion in the National Park System as part of Biscayne National Park. 148 Cong. Rec. S100 (daily ed. Jan. 24, 2002). The bill was referred to the Committee on Energy and Natural Resources.

  • S. 1898 (McConnell, R-Ky.) (Green River National Wildlife Refuge) would establish the Green River National Wildlife Refuge in Kentucky. 148 Cong. Rec. S136 (daily ed. Jan. 15, 2002). The bill was referred to the Committee on Environment and Public Works.

  • S. 1907 (Smith, R-Or.) (land conveyance) would direct the Secretary of the Interior to convey certain land to the city of Haines, Oregon. 147 Cong. Rec. S235 (daily ed. Jan. 29, 2002). The bill was referred to the Committee on Energy and Natural Resources.

  • H.R. 3621 (Vitter, R-La.) (seaports) would improve the security of seaports and the marine environment to promote public safety and commerce. 148 Cong. Rec. H33 (daily ed. Jan. 23, 2002). The bill was referred to the Committees on Transportation and Infrastructure, Ways and Means, and the Judiciary.

  • H.R. 3630 (Meek, D-Fla.) (Biscayne National Park) would direct the Secretary of the Interior to conduct a special resource study to determine the national significance of the Miami Circle site in Florida and the suitability and feasibility of its inclusion in the National Park System as part of Biscayne National Park. 147 Cong. Rec. H78 (daily ed. Jan. 24, 2002). The bill was referred to the Committee on Resources.

  • H.R. 3631 (Pascrell, D-N.J.) (electric motor vehicles) would amend the Internal Revenue Code of 1986 to modify the electric motor vehicle credit, including an expansion of the credit to certain 3-wheeled vehicles. 148 Cong. Rec. H78 (daily ed. Jan. 24, 2002). The bill was referred to the Committee on Ways and Means.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved. 

IN THE STATES

Click on a state name below to see its information in ELR UPDATE. Or go to http://www.elr.info/State/stateupdate.cfm to view the complete section.

Copyright© 2002, Environmental Law Institute, Washington, DC All rights reserved.

INTERNATIONAL

GENERAL

  • The Director-General of the United Nations Food and Agriculture Organization, Dr. Jacques Diouf, emphasized that agriculture has "important potential" for achieving the goals of an upcoming summit on sustainable development. In a message to the committee meeting in New York meeting to prepare for the World Summit for Sustainable Development (WSSD) in Johannesburg, South Africa, Dr. Diouf said agriculture, forestry, and fisheries should be an integral part of all events leading up to the Summit. See http://www.un.org/apps/news/story.asp?NewsID=2753&Cr=sustainable&Cr1=development
  • Germany's Parliament endorsed a proposal that would spur the use of cogeneration to assist in reducing carbon dioxide emissions. The measure, which must be approved by the Bundesrat, is based on an industry-supported plan.
  • Birth defects are significantly more common in children who live closest to landfill sites, according to a study published in Lancet.
  • Genetically modifed corn was found in southeastern Mexico. It apparently arrived through food aid deliveries.
  • Representatives of various regional national group outlined preparations made for the WSSD, as the Summit’s Preparatory Committee met in New York. The Commission on Sustainable Development, established in 1993 to follow up on the 1992 United Nations Conference on Environment and Development, held in Rio de Janeiro, is acting as the Preparatory Committee for the Summit, to be held in Johannesburg, South Africa, from Aug. 26 to Sept. 4. Representing the Economic and Social Commission for Asia and the Pacific, Cambodia’s delegate presented the outcome of the Asia-Pacific Regional Preparatory Committee Meeting, held in Phnom Penh, on behalf of Cambodia's Environment Minister, Mok Mareth. He said that despite significant achievements, the region’s environment continued to deteriorate and the number of poor countries continued to increase. Zambia's Minister for Foreign Affairs, presenting the outcome of the African preparatory conference, held in Nairobi, Kenya, expressed concern that the international community had not fulfilled commitments made in Rio de Janeiro with regard to the means of implementing Agenda 21. Singapore's representative, on behalf of the Alliance of Small Island States (AOSIS), presented the outcome of the AOSIS Interregional Preparatory Meeting, held in Singapore. Also making presentations were Yemen's Minister for Tourism and Environment, who presented the outcome of the West Asia/Arab region preparatory process; the representative of Brazil, who presented on behalf of the Economic Commission for Latin America and the Caribbean; and the observer for Switzerland, who presented the results of the European Regional Preparatory Meeting, and speakers from Japan, Spain, and Suriname. See http://www.un.org/News/Press/docs/2002/ENVDEV609.doc.htm.
  • Industry Canada released a report, North American Economic Integration: Issues and Research Agenda, calling for improved cooperation among NAFTA countries in addressing common environmental problems. See http://strategis.ic.gc.ca/SSG/ra01809e.html
  • The Great Barrier Reef is being adversely affected by pollution, according to a new report. See http://www.gbrmpa.gov.au/corp_site/key_issues/water_quality/Flood_Plumes_in_the_GBR.pdf
  • The degradation of mountain ecosystems--home to 600 million people and the source of water for more than half the world's population--threatens to seriously worsen global environmental problems including floods, landslides, and famine, according to an analysis by United Nations University. See http://www.unu.edu/mountains2002/news/news-release.html

CLIMATE CHANGE

  • Two studies published in Nature predict that the risk of extreme rainfalls over Europe and Asian monsoon regions due to climate change is increasing, with large-scale flooding likely worldwide. See http://www.nature.com/nature/links/020131/020131-5.html
  • U.N. Framework Convention on Climate Change Executive Secretary Michael Zammit Cutajar ended his 11-year tenure with a speech calling for addressing climate change as a means of fostering sustainable development. See http://unfccc.int/press/prel2002/pressrel300102.pdf
  • The Pew Center for Climate Change issued a report, Aquatic Ecosystems and Global Climate Change: Potential Impacts on Island Freshwater and Coastal Wetland Ecosystem in the United States. "The United States' freshwater and wetland ecosystems face multiple threats to their health and stability, including changes in land use, environmental pollution, and the diversion of water for drinking, irrigation, and other uses," said Eileen Claussen, President of the Pew Center on Global Climate Change. "To these threats we must now add the very real and very serious effects of global climate change and its potential to transform the essential character of our lakes, rivers, streams, and wetlands." See http://www.pewclimate.org/projects/aquatic.cfm The report concluded that "increases in water temperatures as a result of climate change will alter the geographic distribution of aquatic plant and animal species. The severity of these impacts may be limited if species can migrate to new areas as climate changes. However, the ability of species to migrate may be compromised by human activities that block migration corridors, potentially causing reductions in biodiversity." In addition, "changes in precipitation will alter river and streamflows affecting ecosystem productivity and reducing water quality. Populations of aquatic organisms are sensitive to the effects of floods, droughts and other extreme weather events, which are likely to increase as a result of climate change." And "climate change is likely to further stress sensitive freshwater and coastal wetlands. Wetlands throughout the United States already are adversely affected by a variety of human impacts. Climate change will add to the existing stresses on these fragile ecosystems in a variety of ways--most notably by causing global sea levels to rise and inundate coastal wetlands. Rising global temperatures also will cause the wetland areas of Alaska and Canada to release additional carbon dioxide and other greenhouse gases into the atmosphere."
  • A study commission in the Netherlands recommended that a carbon dioxide trading program be implemented.
  • Unocal Corporation's Geothermal Indonesia, Ltd. subsidiary announced the first sale of greenhouse gas emission reduction credits from Indonesia.
  • Canada's environment minister said his country would try to secure ratification of the Kyoto Protocol by either the June Group of Eight leaders meeting in Kananaskis, Canada, or in time for for the U.N. World Summit on Sustainable Development in Johannesburg in August.
  • Business groups in New Zealand organized a seminar/press conference to discuss their concerns with Kyoto implementation.
  • The Environment Committee of the European Parliament asked the Parliament to approve the adoption and implementation by the EU of the Kyoto Protocol on climate change and to insist that the agreement on the allocation of greenhouse gas reduction targets for each individual Member State is fully adhered to. In addition, the Committee recommended that that subsequent Commission proposals for tougher reduction targets are issued under the codecision procedure in order to involve Parliament fully. Reporting for the committee, Jorge Moreira da Silva said that at present Parliament can only vote up or down on Kyoto-related matters. He expressed concern that some Member States may have "cold feet" about reducing their greenhouse gas emissions pursuant to the 1998 Burden Sharing Agreement. The Committee wants the EU to retain its leading role in pushing for the Protocol's speedy ratification and wants Parliament to approve the Council Decision in time for the March Environment Council.

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