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Weekly Update Volume 35, Issue 1

01/10/2005

LITIGATION

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

CONSTITUTIONAL LAW, FOURTH AMENDMENT, INSPECTIONS:

The Fourth Circuit held that EPA inspectors who took wastewater samples at a mill are entitled to qualified immunity. The owner of the mill had no reasonable expectation of privacy in the wastewater under the circumstances shown in the record and therefore had no Fourth Amendment right. Even if this were not the case, the existence of such a reasonable expectation was not clearly established law. Thus, the owner's claim that the inspectors violated its Fourth Amendment right to be free from unreasonable searches was dismissed, and the lower court's ruling to the contrary was reversed. Riverdale Mills Corp. v. Pimpare, No. 04-1626, 35 ELR 20004 (1st Cir. Dec. 22, 2004) (27 pp.).

OIL EXPLORATION, ENVIRONMENTAL DAMAGE, DISCOVERY:

The Fifth Circuit reversed a district court's denial of a motion to compel attendance and produce documents and its quashing of a subpoena directed to a non-party witness in a class action suit alleging that oil companies cooperated with and assisted the Nigerian military in the brutal repression of the Ogoni, a Nigerian ethnic minority. The underlying complaint alleges that the Ogoni demanded that the companies adhere to proper environmental standards and pay compensation for environmental damages in relation to its oil exploration and production activities in Nigeria. In response to the Ogoni’s demands, the Nigerian military and police forces, allegedly supported and assisted by the oil companies, retaliated against the Ogoni by visiting a campaign of terror on them. The district court quashed the subpoena and denied the motion to compel outright without providing oral or written reasons for doing so. Nor did the district court attempt to explain any deficiencies in either the subpoena or the motion so that the appellant might have an opportunity to cure any defects. This was an abuse of discretion. Because the subpoena was overbroad, the court modified the subpoena rather than simply quashing it. Wiwa v. Royal Dutch Petroleum Co., No. 03-21222, 35 ELR 20003 (5th Cir. Dec. 21, 2004) (21 pp.).

CONSTITUTIONAL LAW, TAKINGS, STATE VS. PRIVATE PROPERTY:

The Seventh Circuit held that the state of Illinois would be violating the Constitution if it confiscated any part of a clean energy foundation's assets. After the state legislature passed an authorizing statute, the foundation was created out of the profits from a private company's sale of seven fossil-fuel power plants. A few years later, the legislature amended the authorizing statute to require the foundation to turn over $125 million of its assets to the state. However, the state's demand, if enforced, would be a taking of private property for public use without just compensation. The foundation's property is not the state's property. By authorizing the transfer of private property from one private entity to another, the state did not destroy the private character of the property. And even though the trustees are appointed by the state, they have a fiduciary duty to conserve the foundation's assets. Illinois Clean Energy Community Foundation v. Filan, No. 04-2277, 35 ELR 20002 (7th Cir. Dec. 22, 2004) (9 pp.).

MAGNUSON-STEVENS FISHERY CONSERVATION & MANAGEMENT ACT (MAGNUSON-STEVENS ACT), APA, FISH ALLOCATION:

The Ninth Circuit upheld the Secretary of Commerce's decision to allocate a portion of the U.S. harvest of Pacific whiting to the Makah Indian Tribe. Because the "best available scientific information" supports a sliding scale method of allocation, the National Marine Fisheries Service's (NMFS') reliance on that method for allocating the tribal share of the Pacific whiting harvest is neither arbitrary, capricious, nor an abuse of its discretion under the Magnuson-Stevens Act. In addition, remand to the NMFS was unnecessary. It complied with the APA and a prior remand order that the agency "promulgate a new allocation consistent with the law and based on the best available science" when it conducted two new rulemakings, both of which sought public comment. Nor did the district court abuse its discretion by permitting the NMFS to supplement the record. Midwater Trawlers Cooperative v. Department of Commerce, No. 03-35398, 35 ELR 20006 (9th Cir. Dec. 28, 2004) (23 pp.).

NATIVE AMERICANS, TREATY FISHING RIGHTS:

The Ninth Circuit reversed a lower court's denial of a Native American tribe's motion to reopen a 1981 judgment that denied the tribe treaty fishing rights on the ground that the tribe had not maintained an organized tribal structure. In 1996 the tribe became federally recognized, and the lower court abused its discretion in ruling that federal recognition is not determinative of the issue of tribal organization. United States v. Washington, No. 03-35145, 35 ELR 20009 (9th Cir. Jan. 6, 2005) (34 pp.).

CERCLA, RESPONSE COSTS, NCP:

The Tenth Circuit held that owners of land adjacent to a Superfund site may not go forward with their CERCLA §107 cost-recovery action. The court below dismissed their claim because they were potentially responsible parties. The Tenth Circuit affirmed the decision on different grounds, namely, that they failed to establish that the release of hazardous substances caused them to incur necessary response costs consistent with the NCP. Young v. United States, No. 02-7133, 35 ELR 20008 (10th Cir. Jan. 4, 2005) (13 pp.).

CONSTITUTIONAL LAW, TAKINGS, DEVELOPMENT RESTRICTION:

New York's highest court holds that a municipality does not commit an unconstitutional taking when it conditions site plan approval on landowners' acceptance of a development restriction consistent with the municipality's pre-existing conservation policy. The restriction would not appreciably diminish the value of the property, let alone deny the landowners economically viable use of it. Further, the conservation restriction substantially advances a legitimate government purpose--environmental preservation. Smith v. Town of Mendon, No. 177, 35 ELR 20001 (N.Y. Dec. 21, 2004) (42 pp.).

STATUTE OF LIMITATIONS, TIMBER HARVESTING:

A California appellate court held that the statute of limitations governing the filing of a petition for administrative mandamus challenging a decision of the state's Board of Forestry and Fire Protection is found in California Public Resources Code §4601.3. Consequently, a petition for a writ of mandate filed by a timber operator more than 30 days after he was ordered to pay a $1,000 fine for unlawfully cutting and removing trees without a timber harvesting plan was dismissed. Cockshott v. Department of Forestry & Fire Protection, No. C045732, 35 ELR 20005 (Cal. App. 3d Dist. Dec. 22, 2004) (8 pp.).

LAND USE, PLANNING COMMISSIONS, BIAS:

A California appellate court reversed a lower court's denial of a developer's petition to overturn an adverse decision by a local planning commission due to an unacceptable probability of actual bias on the part of one of the decisionmakers. While this matter was pending before the planning commission, one of its members authored an article attacking the project under consideration. Accordingly, the developer's claim of bias is well founded. The commission's decision was reversed, and the court ordered a new hearing. Nasha L.L.C. v. City of Los Angeles, No. B167071, 35 ELR 20007 (Cal. App. 2d Dist. Dec. 29, 2004) (17 pp.).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to the Federal Register (FR).

AIR:

  • EPA proposed revisions to the motor vehicle inspection/maintenance regulation, specifically for areas newly required to implement this regulation, to update submission and implementation deadlines and other related requirements to reflect the schedule for meeting the eight-hour NAAQS for ozone. 70 FR 1324 (1/6/05).
  • EPA designated and classified initial air quality for all areas in the United States so that citizens will know if the air quality where they live and work is healthy or unhealthy. 70 FR 1019 (1/5/05).
  • EPA proposed that refiners and importers of conventional gasoline that is used in Alaska, Hawaii, Puerto Rico, and the Virgin Islands change the way they calculate emissions from such gasoline in order to calculate the gasoline antidumping baselines and evaluate annual average emissions. 70 FR 660 (1/4/05).
  • EPA proposed to revise default baseline values for reformulated and conventional gasoline under the mobile source air toxics program to reflect the national average toxics performance of gasoline from 1998 to 2000. 70 FR 646 (1/4/05).

FISHERIES:

  • USDA's Forest Service and DOI's FWS proposed regulations for fishing seasons, harvest limits, methods, and means related to taking of fish and shellfish for subsistence uses during the 2006-2007 regulatory year to replace the regulations of 2005-2006 that are subject to an annual public review cycle. 70 FR 1219 (1/6/05).
  • NOAA is required to develop and implement a quality assurance program that is equally available to all applicants, under which the administrator may certify hydrographic products, which are any publicly or commercially available product produced by a non-federal agency that includes or displays hydrographic data. 70 FR 703 (1/5/05).
  • NMFS proposed and requested public comment on critical habitat designations for two evolutionarily significant units of Chinook salmon and five evolutionarily significant units of O. mykiss in California that are listed under the ESA. 70 FR 325 (1/4/05).
  • NOAA notified the public that the Alaska SeaLife Center, The Aleutians East Borough, The National Marine Mammal Laboratory, The Oregon Department of Fish and Wildlife, and Dr. Randall Davis of Texas A&M University have been issued amendments to permits for scientific research on Stellar sea lions. 70 FR 78 (1/3/05).

NATURAL RESOURCES:

  • USDA issued a final rule to streamline and improve the planning process by making the plans more flexible to changes in social, economic, and environmental conditions, by practicing sustainable management. 70 FR 1061 (1/5/05).
  • USDA removed the National Forest System Land and Resource Management Planning regulations from 35 C.F.R. pt. 219, subpt. A, after publishing several amendments that revised certain sections of the rule and before the admission of a new 2004 planning rule clarifying the planning regulations the used to implement the National Forest Management Act. 70 FR 1023 (1/5/05).

WILDLIFE:

  • FWS planned to gather the necessary information for a NEPA document and to determine whether to prepare an EA or EIS for a proposed habitat conservation plan in support of an application for an incidental take permit. 70 FR 1458 (1/7/05).
  • FWS established a rule that better addresses the concerns of landowners affected by the approved wolf management plans and addresses the impacts of a recovered wolf population. 70 FR 1311 (1/6/05).
  • FWS reclassified the Mariana fruit bat from endangered to threatened species, which was determined after receiving the best available scientific information indicating that the fruit bats only comprise one subspecies on Guam and throughout the Northern Mariana Islands. 70 FR 1210 (1/6/05).
  • FWS restricted the Santa Ana sucker to three noncontiguous populations in three different stream systems in southern California, which constitute 23,719 acres of critical aquatic and riparian habitats essential to its conservation. 70 FR 458 (1/4/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. District of Columbia Water and Sewer Authority, No. 1:CV00183TFH (D., D.C., Dec. 16, 2004). Settling CWA defendants must construct and operate a $1,265,000,000 system of pumps and tunnels to create additional storage in the combined sewer that should reduce the volume and frequency of the combined sewer discharges. 70 FR 918 (1/5/05).
  • United States v. Johnson Controls, Inc., No. 04-74987 (E.D. Mich. Dec. 22, 2004). Settling CERCLA defendants must remove polychlorinated biphenyl contamination from specified areas of the flood plain and river sediment of the Shiawassee River and pay the United States $1,700,000 for past response costs incurred by EPA in connection with the site. 70 FR 918 (1/5/05).

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

PUBLIC LAWS:

  • H.R. 2119 (federal lands), which provides for the conveyance of federal lands, improvements, equipment, and resource materials at the Oxford Research Station in Granville County, North Carolina, to the state of North Carolina, was signed into law on December 21, 2004. Pub. L. No. 108-460, 151 Cong. Rec. D6 (daily ed. Jan. 4, 2005).
  • H.R. 4569 (Sudden Oak Death), which provides for the development of a national plan for the control and management of Sudden Oak Death, a tree disease caused by the fungus-like pathogen Phytophthora ramorum, was signed into law on December 23, 2004. Pub. L. No. 108-488, 151 Cong. Rec. D8 (daily ed. Jan. 5, 2005).

BILLS INTRODUCED:

  • H.R. 12 (Hayworth, R-Ariz.) (Education Land Grant Act), would amend the Education Land Grant Act to require the Secretary of Agriculture to pay the costs of environmental reviews with respect to conveyances under that Act. 151 Cong. Rec. H71 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 18 (Baca, D-Cal.) (groundwater remediation), would authorize the Secretary of the Interior, acting through the Bureau of Reclamation and in coordination with other federal, state, and local government agencies, to participate in the funding and implementation of a balanced, long-term groundwater remediation program in California. 151 Cong. Rec. H71 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 21 (McIntyre, D-N.C.) (Lumbee Tribe of North Carolina), would provide for the recognition of the Lumbee Tribe of North Carolina. 151 Cong. Rec. H72 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 36 (King, R-Iowa) (small agri-biodiesel and ethanol producer credit), would amend the Internal Revenue Code of 1986 to provide for a small agri-biodiesel producer credit and to improve the small ethanol producer credit. 151 Cong. Rec. H72 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Ways and Means.
  • H.R. 38 (Baird, D-Wash.) (White Salmon River), would designate a portion of the White Salmon River as a component of the National Wild and Scenic Rivers System. 151 Cong. Rec. H72 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 39 (Young, R-Alaska) (oil and gas in Coastal Plain), would establish and implement a competitive oil and gas leasing program that will result in an environmentally sound and job creating program for the exploration, development, and production of the oil and gas resources of the Coastal Plain. 151 Cong. Rec. H72 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 61 (Christensen, D-V.I.) (St. Croix National Heritage Area), would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the St. Croix National Heritage Area in St. Croix, United States Virgin Islands. 151 Cong. Rec. H73 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 70 (Davis, R-Va.) (out-of-state municipal solid waste), would authorize states to regulate the receipt and disposal of out-of-state municipal solid waste. 151 Cong. Rec. H73 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 73 (Davis, R-Va.) (Northern Neck National Heritage Area), would direct the Secretary of the Interior to conduct a study of the suitability and feasibility of establishing the Northern Neck National Heritage Area in Virginia, and for other purposes. 151 Cong. Rec. H74 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 74 (Davis, R-Va.) (FWPCA; wetlands), would amend the FWPCA to impose limitations on wetlands mitigation activities carried out through the condemnation of private property. 151 Cong. Rec. H74 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 87 (Frelinghuysen, R-N.J.) (Crossroads of the American Revolution National Heritage Area), would establish the Crossroads of the American Revolution National Heritage Area in the state of New Jersey. 151 Cong. Rec. H74 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 109 (Herseth, D-S.D.) (Lower Brule and Crow Creek Sioux Tribes of South Dakota), would provide compensation to the Lower Brule and Crow Creek Sioux Tribes of South Dakota for damage to tribal land caused by Pick-Sloan projects along the Missouri River. 151 Cong. Rec. H74 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 110 (Holt, D-N.J.) (FIFRA), would amend FIFRA to require local educational agencies and schools to implement integrated pest management systems to minimize the use of pesticides in schools and to provide parents, guardians, and employees with notice of the use of pesticides in schools, and for other purposes. 151 Cong. Rec. H74 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 122 (Issa, R-Cal.) (Reclamation Wastewater and Groundwater Study and Facilities Act), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Eastern Municipal Water District Recycled Water System Pressurization and Expansion Project. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 123 (Issa, R-Cal.) (Reclamation Wastewater and Groundwater Study and Facilities Act), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Elsinore Valley Municipal Water District Wildomar Service Area Recycled Water Distribution Facilities and Alberhill Wastewater Treatment and Reclamation Facility Projects. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 124 (Issa, R-Cal.) (Trabuco Ranger District of the Cleveland National Forest), would provide an environmentally sound process for the expeditious consideration and approval of a high-voltage electricity transmission line right-of-way through the Trabuco Ranger District of the Cleveland National Forest in the state of California and adjacent lands under the jurisdiction of the BLM and the Forest Service. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 125 (Issa, R-Cal.) (Santa Margarita River), would authorize the Secretary of the Interior to construct facilities to provide water for irrigation, municipal, domestic, military, and other uses from the Santa Margarita River, California. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources, and to the Committee on Armed Services.
  • H.R. 126 (Jones, R-N.C.) (Cape Lookout National Seashore), would amend Public Law 89-366 to allow for an adjustment in the number of free roaming horses permitted in Cape Lookout National Seashore. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 135 (Linder, R-Ga.) (Twenty-First Century Water Commission), would establish the "Twenty-First Century Water Commission" to study and develop recommendations for a comprehensive water strategy to address future water needs. 151 Cong. Rec. H75 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources, and to the Committee on Transportation and Infrastructure.
  • H.R. 138 (Kingston, R-Ga.) (John H. Chafee Coastal Barrier Resources System Jekyll Island Unit GA-06P), would revise the boundaries of John H. Chafee Coastal Barrier Resources System Jekyll Island Unit GA-06P. 151 Cong. Rec. H76 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 140 (McHugh, R-N.Y.) (anaerobic digesters), would promote the use of anaerobic digesters by agricultural producers and rural small businesses to produce renewable energy and improve environmental quality. 151 Cong. Rec. H76 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 177 (Gary G., R-Cal.) (Reclamation Wastewater and Groundwater Study and Facilities Act), would amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Prado Basin Natural Treatment System Project, to authorize the Secretary to carry out a program to assist agencies in projects to construct regional brine lines in California, and to authorize the Secretary to participate in the Lower Chino Dairy Area desalination demonstration and reclamation project. 151 Cong. Rec. H77 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 186 (Pombo, R-Cal.) (groundwater remediation), would authorize the Secretary of the Interior, acting through the Bureau of Reclamation and in coordination with other Federal, State, and local government agencies, to participate in the funding and implementation of a balanced, long-term groundwater remediation program in California. 151 Cong. Rec. H77 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.
  • H.R. 187 (Pomeroy, D-N.D.) (bovine spongiform encephalopathy), would prohibit the operation during a calendar year of the final rule issued by the Secretary of Agriculture to establish standards for the designation of minimal-risk regions for the introduction of bovine spongiform encephalopathy into the United States, including designation of Canada as a minimal-risk region, unless United States access to major markets for United States exports of cattle and beef products is equivalent or better than the access status accorded such exports as of January 1, 2003. 151 Cong. Rec. H77 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 207 (Serrano, D-N.Y.) (Food, Drug, and Cosmetic Act), would amend the Food, Drug, and Cosmetic Act and the egg, meat, and poultry inspection laws to ensure that consumers receive notification regarding food products produced from crops, livestock, or poultry raised on land on which sewage sludge was applied. 151 Cong. Rec. H78 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Energy and Commerce, and to the Committee on Agriculture.
  • H.R. 213 (Solis, D-Cal.) (SDWA), would amend the SDWA to require a national primary drinking water regulation for perchlorate. 151 Cong. Rec. 78 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Energy and Commerce.
  • H.R. 231 (Taylor, D-Miss.) (Thad Cochran Southern Horticultural Laboratory Site), would designate the parcel of land containing the facility of the Agricultural Research Service of the Department of Agriculture located at State Highway 26 West in Poplarville, Mississippi, as the "Thad Cochran Southern Horticultural Laboratory Site". 151 Cong. Rec. H78 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 233 (Thompson, D-Cal.) (national forests), would designate certain National Forest System lands in the Mendocino and Six Rivers National Forests and certain Bureau of Land Management lands in Humboldt, Lake, Mendocino, and Napa Counties in the state of California as wilderness, to designate the Elkhorn Ridge Potential Wilderness Area, to designate certain segments of the Black Butte River in Mendocino County, California, as a wild or scenic river. 151 Cong. Rec. H78-9 (daily ed. Jan. 4, 2005). The bill was referred to the Committee on Resources.

Copyright© 2005, Environmental Law Institute, Washington, D.C. 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© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

BIODIVERSITY:

  • Coordination Meeting for Governments and Organizations Implementing or Funding Biosafety Capacity-Building Activities. The first meeting will be held in Montreal, Canada, on January 26-27, 2005. See http://www.biodiv.org/doc/meeting.aspx?mtg=BSCMCB-01 The second meeting of the Liason Group will be held in Montreal, Canada, on January 27-28, 2005. See http://www.biodiv.org/doc/meeting.aspx?mtg=BSLGCB-02
  • The International Conference on Biodiversity, Science, and Governance will take place in Paris from January 24 to January 28, 2005. The Conference is organized by the French Ministry for Research and sponsored by UNESCO. See http://www.recherche.gouv.fr/biodiv2005paris/en/index.htm
  • The Convention on Biological Diversity (CBD) is holding a meeting in London on January 20-21, 2005, on Business and the 2010 Biodiversity Challenge. The objective of the meeting is to develop ideas that could best be pursued through the
    CBD or in support of its objectives for engaging business in biodiversity issues as a means of working toward the 2010 target to achieve a significant reduction in the current rate of biodiversity loss. See http://www.biodiv.org/doc/meetings/biodiv/b2010-01/official/b2010-01-01-en.pdf

CIVIL SOCIETY AND PUBLIC PARTICIPATION:

  • The United Nations Environment Programme's (UNEP's) Sixth Global Civil Society Forum will take place on February 19-20, 2005, in Nairobi, Kenya. The forum is the main venue for civil society to participate in the UNEP decisionmaking process. See http://www.unep.org/DPDL/civil_society/GCSF/index.asp

Copyright© 2005, Environmental Law Institute, Washington, D.C. All rights reserved.

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