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Weekly Update Volume 35, Issue 10

04/04/2005

LITIGATION

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

NATIVE AMERICANS, LOCAL TAXES:

The U.S. Supreme Court held that a Native American tribe's reacquisition of historic reservation land does not prohibit the imposition of local property taxes. The tribe cannot unilaterally revive its ancient sovereignty over the parcels at issue. The tribe long ago relinquished governmental reins and cannot regain them through open-market purchases from current titleholders. When a party belatedly asserts a right to present and future sovereign control over territory, longstanding observances and settled expectations are prime considerations. Here, the unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences. The area today is overwhelmingly populated by non-Indians, and a checkerboard of state and tribal jurisdiction--created unilaterally at the tribe's behest--would "seriously burde[n] the administration of state and local governments" and would adversely affect landowners neighboring the tribal patches. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Souter, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. City of Sherrill, New York v. Oneida Indian Nation of New York, No. 03-855, 35 ELR 20065 (U.S. Mar. 29, 2005) (33 pp.).

CAA, SENTENCING:

The Second Circuit affirmed individuals' convictions for violating the CAA's asbestos work practice standards but vacated the individuals' sentences. The lower court's instructions, which permitted the jury to convict the individuals without finding that they were aware of asbestos regulation, was not erroneous. The CAA presupposes a knowledge that asbestos is a regulated material. Yet in imposing a sentence enhancement, the court erred by considering state permitting requirements that are arguably inapplicable to the individuals. The case was therefore remanded with instructions to conduct resentencing. United States v. Rubenstein, No. 03-1721, 35 ELR 20068 (2d Cir. Mar. 31, 2005) (19 pp.).

WATER LAW, DETACHMENT, RIPENESS:

The Eighth Circuit held that a dispute concerning who will supply water to certain property owners in Missouri is not ripe for review. Property owners filed suit in state court seeking to detach their property from the water district area so that it could obtain water from a city instead of from the local water district. The water district filed suit, arguing that federal law preempts any state law that would allow the city to sell water to the owners of these properties even if the properties are detached. The federal court dismissed the district's case, and the district appealed. The case, however, is not ripe. The district wants a declaration that the city cannot sell water to the property owners if the property they own is detached from the district. But the injury facing the district--water sales by the city to the owners of the formerly attached properties--is not "certainly impending." The properties have not been detached. Rather, all of the detachment proceedings are currently pending before Missouri state trial courts. Public Water Supply District No. 8 of Clay County, Missouri v. City of Kearney, Missouri, No. 04-2072, 35 ELR 20064 (8th Cir. Mar. 25, 2005) (5 pp.).

LAND USE, CONDEMNATION:

A California appellate court affirmed a lower court judgment in a condemnation action awarding an RV park compensation for property taken by eminent domain, additional property taken by inverse condemnation, a temporary construction easement, a drainage easement, and severance damage to its remaining property. The RV park was entitled to maintain an inverse condemnation cross-action for claimed total loss of use of a portion of its remaining land and was not limited to severance damages in the direct action for that injury. In addition, the trial court properly changed the date of valuation of the condemned property from the date the local development board deposited probable compensation to the date of trial. San Diego Metropolitan Transit Development Board v. RV Communities, No. D042545, 35 ELR 20066 (Cal. App. 4th Dist. Mar. 29, 2005) (52 pp.).

Notice of Certiorari Denial: The U.S. Supreme Court denied certiorari in the case Milwaukee Metropolitan Sewerage District v. Friends of Milwaukee’s Rivers, in which the Seventh Circuit allowed a CWA suit filed by environmentalists to proceed against a local sewerage district for sanitary sewer overflows because the state had not diligently prosecuted the alleged violations.

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 to approve an amendment to the statewide nitrogen oxide rule for Missouri, which would be a critical element in the state's plan to maintain the one-hour ozone standard in the St. Louis maintenance area and would help to reduce ozone concentrations in the area in the future. 70 FR 16474 (3/31/05).
  • EPA removed coal- and oil-fired electric utility steam generating units from the CAA §112(c) source category list. 70 FR 16035 (3/29/05).
  • EPA announced, in response to five citizen petitions asking EPA to object to operating permits issued to four facilities in the Bay Area Air Quality Management District in California, that the Agency denied a petition concerning the permit issued to Chevron Products Co.; partially granted and partially denied two petitions concerning permits issued to Chevron and ConocoPhillips Co.; and partially granted and partially denied two petitions concerning permits issued to Tesoro Refining and Marketing Co. and Valero Refining Co. 70 FR 15850 (3/29/05).
  • EPA proposed a consent decree to address a lawsuit filed by Environmental Defense and the American Lung Association to push EPA to determine whether each state submitted SIPs required by the CAA §110 for NAAQS for fine particulate matter and ozone. 70 FR 15624 (3/28/05).

FISHERIES:

  • NMFS proposed to allow any agent or employee of NMFS, FWS, the U.S. Coast Guard, or any other federal land or water management agency, or any agent or employee of a state agency responsible for fish and wildlife who is a member of the Sea Turtle Stranding and Salvage Network, to take endangered sea turtles encountered in the marine environment if such taking is necessary to aid a stranded endangered sea turtle, dispose of a dead endangered sea turtle, or salvage a dead endangered sea turtle that may be useful for scientific and educational purposes. 70 FR 15803 (3/29/05).
  • FWS and the Forest Service established regulations for seasons, harvest limits, methods, and means related to taking of fish and shellfish for subsistence uses during the 2005-06 regulatory year. 70 FR 13396 (3/21/05).

HAZARDOUS AND SOLID WASTE:

  • EPA determined that the changes to South Carolina's hazardous waste program under RCRA satisfy all requirements needed for final authorization, and authorized the state's changes through immediate final action. 70 FR 15596 (3/28/05).

NATURAL RESOURCES:

  • The National Park Service designated areas on Lake Superior and the associated mainland unit for use by snowmobiles, off-road motor vehicles, and ice augers or power engines within Apostle Islands National Lakeshore in Wisconsin. 70 FR 16717 (4/1/05).

PESTICIDES:

  • EPA announced plans to organize a two-day public workshop to explain the provisions of a recently proposed rule that updates and revises data requirements by identifying the types of information EPA needs to determine that a pesticide product can be registered, a tolerance or exemption can be issued for pesticide residues in food, or a pesticide can be used experimentally. 70 FR 16786 (4/1/05).
  • EPA announced the availability of risk assessments and related documents for the pesticide ethofumesate and opened a public comment period on these documents. 70 FR 16276 (3/30/05).
  • EPA announced the availability of preliminary risk assessments for hexachlorobenzene and dioxins/furans, which are produced during the manufacture of pentachlorophenol. 70 FR 16278 (3/30/05).
  • EPA announced the availability of a tolerance reassessment decision for the pesticide imazamethabenz-methyl and opened a public comment period on this document, related risk assessments, and other support documents. 70 FR 16280 (3/30/05).

WILDLIFE:

  • FWS announced that a draft comprehensive conservation plan and EIS for the Roanoke River National Wildlife Refuge are available for review and comment. 70 FR 16300 (3/30/05).
  • FWS intended to prepare a comprehensive conservation plan and EA pursuant to NEPA for the Long Island National Wildlife Refuge located in the state of New York. 70 FR 15640 (3/28/05).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Ohio Edison Co., No. 2:99-CV-1181 (S.D. Ohio Mar. 18, 2005). Settling CAA defendants must agree to significantly reduce their annual emissions of sulfur dioxide and nitrogen oxide by installing state-of-the-art pollution controls on the two largest steam-generating units of the Sammis plant located in Stratton, Ohio; install other pollution controls on the five smaller Sammis units; cap the annual sulfur dioxide and nitrogen oxide emissions from the Sammis plant; pay a civil penalty of $8,500,000; undertake projects to mitigate past harm to the environment, including renewable energy projects valued at approximately $14,400,000 and involving electricity generated by wind power; fund $10,000,000 in environmentally beneficial projects in Connecticut, New Jersey, and New York; and fund a solar energy project in Allegheny County, Pennsylvania, and a project addressing air quality in the Shenandoah National Park. 70 FR 16306 (3/30/05).
  • United States v. Chemical Waste Management, No. 02-2007 (D.N.J. Mar. 22, 2005). Settling CERCLA defendants must pay $2,625,000, plus interest, in U.S. response costs associated with the Kin-Buc Landfill Superfund site in Edison New Jersey; pay $100,000, plus interest, in civil penalties; perform a supplemental environmental project that involves the transfer of title to approximately 96 acres of land, the recording of conservation easements prohibiting most use and development of the land in perpetuity, and the payment of $25,000 in supplemental environmental project funding; and provide additional relief, including the payment of at least $83,000 for the preparation and implementation of initial and final financing plans, an open space acreage management plan, and a wetland restoration plan covering at least the 96 acres of land. 70 FR 16306 (3/30/05).
  • United States v. City of McCook, Nebraska, No. 8:05CV93 (D. Neb. Mar. 2, 2005). A settling CWA and SDWA defendant must pay a $136,000 civil penalty of which $131,000 will go to EPA and $5,000 to the state of Nebraska, must comply with the CWA and the terms of its NPDES permit, must perform injunctive relief including continuous monitoring, and must pay a total civil penalty of $89,000 to EPA and the state. 70 FR 15642 (3/28/05).

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

THE CONGRESSCongress has been on recess since March 20, 2005, but will reconvene April 4.


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

ECOSYSTEM ASSESSMENT:

  • On March 30, 2005, the Millennium Ecosystem Assessment Synthesis Report was released. This comprehensive global evaluation of the world's major ecosystems, conducted by 1,300 experts from over 95 countries, began in 2001. The report estimates that 15 out of 24, or 60% percent, of the ecosystem services that support life on earth are being degraded and increasing the likelihood of potentially abrupt changes that will seriously affect human well-being. The report also points out that humans have the power to change these trends. See http://www.maweb.org/en/Article.aspx?id=58

COMMISSION ON SUSTAINABLE DEVELOPMENT:

  • The 13th session of the Commission on Sustainable Development is scheduled to take place at the United Nations Headquarters in New York, from April 11 to 22, 2005. This meeting is the policy session of the first two-year “Implementation Cycle” and will continue to focus on the thematic cluster of water, sanitation, and human settlements. It will build upon the outcome of the 12th session--the review session of the cycle--and examine policy decisions on practical measures and options to expedite implementation of commitments in water, sanitation and human settlements as contained in Agenda 21, the Programme for the Further Implementation of Agenda 21, and the Johannesburg Plan of Implementation, as well the Millennium Declaration.
    See http://www.un.org/esa/sustdev/csd/csd13/csd13.htm

WORLD EXPO 2005:

  • The World Expo 2005 began March 31 in Aichi, Japan, and will run until September 25. The Aichi Expo has the globally embracing, eco-friendly theme, "Nature's Wisdom," but, according to the International Herald Tribune, some environmentalists are boycotting the event in protest of the event's approach to habitats of endangered species and its imposing infrastructure requirements. See http://www.iht.com/articles/2005/03/30/features/expo.html

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

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