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Weekly Update Volume 35, Issue 8

03/14/2005

LITIGATION

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

WATER RIGHTS, MOOTNESS:

The D.C. Circuit affirmed the dismissal of Alabama's and Florida's challenge to a settlement agreement between the U.S. Army Corps of Engineers, Georgia, various state and municipal water authorities, and a nonprofit utility association concerning water rights associated with the Buford Dam, located north of Atlanta, Georgia. The lower court erred in dismissing the appeal as moot because the order approving the settlement agreement was conditional. It did not constitute a final order. But since there is no final order approving the settlement, the appeals should be dismissed for lack of jurisdiction. Southeastern Federal Power Customers, Inc. v. Harvey, No. 04-5143, 35 ELR 20052 (D.C. Cir. Mar. 4, 2005) (8 pp.).

NUCLEAR WASTE POLICY ACT (NWPA), YUCCA MOUNTAIN, APPROPRIATIONS:

The D.C. Circuit held that NWPA §116 creates no continuing appropriation from the Nuclear Waste Fund to Nevada for nuclear waste disposal activities. The state asked DOE to fund its participation in an NRC proceeding that will determine whether a nuclear waste repository project at Yucca Mountain, Nevada, receives a license. The NWPA does not grant DOE authority to provide Nevada with additional financial assistance from the fund. Moreover, Congress' enactment of a separate $1 million fiscal year 2004 appropriation expressly for Nevada bars any additional grant from the Nuclear Waste Fund. Nevada v. Department of Energy, No. 04-1082, 35 ELR 20055 (D.C. Cir. Mar. 8, 2005) (14 pp.).

NATIVE AMERICANS, LAND TRANSFER:

The Eighth Circuit affirmed the dismissal of a tribal member's claim against his tribe in a dispute over an Indian land transfer. The member requested a land transfer in 1976 and, believing the transfer was final, soon began making improvements. But in 2001, he learned from the Bureau of Indian Affairs that the transfer was not final because the tribal council failed to sign the deed authorizing the transfer. The tribe then began to construct a waste transfer station on the land. The member then filed suit, seeking quiet title, an injunction against the waste transfer station, and other equitable relief. But because the case is an intra-tribal contract controversy centered around tribal law, it does not arise under the laws of the United States. Thus, the lower court properly dismissed the case because it lacked subject matter jurisdiction to resolve the dispute. Longie v. Spirit Lake Tribe, No. 04-1578, 35 ELR 20053 (8th Cir. Mar. 7, 2005) (8 pp.).

CONSTITUTIONAL LAW, LAND USE:

The Fifth Circuit affirmed the dismissal of residents' lawsuit against the Dallas Housing Authority seeking to enjoin it from constructing public housing in their community. The decision to build does not violate the residents' right to equal protection under the Fourteenth Amendment. The authority did not consider race when deciding to build on the site, and, regardless of any past improper considerations, the authority still would have built on the site because it is such an ideal location for public housing. Walker v. City of Mesquite, Texas, No. 04-10946, 35 ELR 20054 (5th Cir. Mar. 4, 2005) (8 pp.).

CONSTITUTIONAL LAW, LAND USE:

A district court dismissed property owners' takings, substantive due process, and equal protection claims against a city after the city denied the owners' request for building permits. The owners' takings claim was dismissed for lack of subject matter jurisdiction. The owners did not adequately seek compensation through state procedures. The owners' substantive due process claim was dismissed because they did not possess a constitutionally protected right to develop the property in violation of the zoning laws and other land use regulations that existed at the time. Even if a property right were constitutionally cognizable in this matter, the city's interference with the owners' property interests were rationally related to the city's legitimate government interests to retain the zoning classifications and to build a major thoroughfare near the property. Last, the owners' equal protection claims were dismissed because they failed to demonstrate particular instances in which the city acted differently with respect to similarly situated zoning requests, and the city's actions are rationally related to a legitimate state interest. MacKenzie v. City of San Marcos, No. SA 03 CA 0250, 35 ELR 20057 (W.D. Tex. Mar. 2, 2005) (Furgeson, J.) (9 pp.).

LAND USE, CONDEMNATION:

A district court granted a city's motion for summary judgment on landowners' counterclaims against it in a condemnation proceeding involving a piece of private property. After the property's value was assessed, the city deposited the award into a special account and the landowners then withdrew the money from the account. The condemnation proceeding, however, continued as both parties disputed the amount awarded. The landowners then filed a counterclaim against the city for inverse condemnation. The landowners, however, waived any right to complain about the taking by withdrawing the funds from the account. City of Garland, Texas v. Burnett, No. Civ.A. 3:04-CV-1378, 35 ELR 20058 (N.D. Tex. Mar. 2, 2005) (Solis, J.) (10 pp.).

AGRICULTURE, IMPORTATION, MAD COW DISEASE:

A district court preliminarily enjoined a USDA regulation--scheduled to go into effect on March 7, 2005--that lifts a ban on the importation of live cattle and edible bovine products from Canada for human consumption. There are numerous procedural and substantive shortcomings of the USDA's decision to allow importation of Canadian cattle and beef. The serious irreparable harm that will occur when Canadian cattle and meat enter the United States and commingle with the U.S. meat supply justifies issuance of a preliminary injunction preventing the expansion of imports allowed under the rule. Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States Department of Agriculture, No. CV-05-06-BLG-RFC, 35 ELR 20056 (D. Mont. Mar. 2, 2005) (Cebull, J.) (12 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 amended regulations that identify area designations within Arizona to clarify the boundary description of the Phoenix planning area designated as nonattainment for the NAAQS for particulate matter 10 microns or smaller in diameter. 70 FR 11884 (3/10/05).
  • EPA approved Tennessee's CAA §§111(d)/129 plan for the pollution control district of the Metro Public Health Department for Nashville/Davidson County. 70 FR 10894 (3/7/05).

ENERGY:

  • DOE forecasted the average unit costs of five residential energy sources for the year 2005--electricity, natural gas, No. 2 heating oil, propane, and kerosene--pursuant to the Energy Policy and Conservation Act. 70 FR 12210 (3/11/05).

FISHERIES:

  • NMFS evaluated the joint resource management plan for harvest of Puget Sound chinook salmon that specifies the management of commercial, recreational, and tribal salmon fisheries and steelhead net fisheries that potentially affect listed Puget Sound chinook salmon from May 1, 2004, to April 30, 2010. 70 FR 12203 (3/11/05).
  • NOAA issued a one-year letter of authorization to harass seals and sea lions incidental to rocket and missile launches on Vandenberg Air Force Base, California. 70 FR 11616 (3/9/05).
  • NMFS proposed to lift trade restrictions on importing bigeye tuna from Cambodia, importing bigeye tuna and bluefin tuna from Equatorial Guinea, and importing bigeye tuna, bluefin tuna, and swordfish from Sierra Leone. 70 FR 11192 (3/8/05).

HAZARDOUS AND SOLID WASTES:

  • EPA announced an inspection at the Idaho National Engineering and Environmental Laboratory Advanced Mixed Waste Treatment Project to verify that the site can characterize transuranic waste in accordance with EPA's WIPP compliance criteria. 70 FR 11916 (3/10/05).
  • EPA authorized revisions to the codification of the Idaho hazardous waste management program, which EPA found to be equivalent and consistent with the federal program. 70 FR 11135 (3/8/05).

PESTICIDES:

  • EPA proposed to update and revise its data requirements for the registration of conventional pesticide products. 70 FR 12353 (3/11/05).

TOXIC SUBSTANCES:

  • EPA proposed revisions to the reporting requirements for dioxin and dioxin-like compounds. 70 FR 10930 (3/7/05).

WATER QUALITY:

  • EPA announced final agency action on 13 TMDLs prepared in response to the lawsuit Sierra Club v. Clifford, No. LR-C-99-114, for waters listed in the state of Arkansas, under CWA §303(d). 70 FR 11971 (3/10/05).
  • EPA announced the availability for comment of the administrative record file for one TMDL and its calculations prepared for the waters listed in Arkansas in response to the lawsuit Sierra Club v. Browner, No. LR-C-99-114. 70 FR 11971 (3/10/05).
  • EPA postponed, for a second time, the requirement to obtain NPDES stormwater permit coverage for oil and gas construction activity that would disturb one to five acres of land. 70 FR 11563 (3/9/05).

WILDLIFE:

  • FWS designated 1,184,513 acres of critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants after asking for public comments about economic and other impacts of the designation. 70 FR 11154 (3/8/05).

DOJ NOTICE OF SETTLEMENT:

  • In re Bella Vista Restaurant, DOJ Ref. 90-5-1-1-0845. A settling Park System Resources Protection Act defendant must pay $195,000 for costs and damages to the Phleger Estate of Golden Gate National Recreation Area, which is a unit of the National Park Service. 70 FR 12019 (3/10/05).

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

THE CONGRESS

COMMITTEE ACTION:

  • S. 177 (Reclamation Projects Authorization and Adjustment Act of 1992), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-15, 151 Cong. Rec. S2147 (daily ed. Mar. 7, 2005). The bill would further the purposes of the Reclamation Projects Authorization and Adjustment Act of 1992 by directing the Secretary of the Interior, acting through the Commissioner of Reclamation, to carry out an assessment and demonstration program to control salt cedar and Russian olive.
  • S. 178 (state water plans), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-16, 151 Cong. Rec. S2147 (daily ed. Mar. 7, 2005). The bill would provide assistance to the state of New Mexico for the development of comprehensive state water plans.
  • S. 214 (transboundary aquifers), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-17, 151 Cong. Rec. S2147 (daily ed. Mar. 7, 2005). The bill would authorize the Secretary of the Interior to cooperate with the states on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers.
  • S. 229 (Middle Rio Grande Project), was reported by the Committee on Energy and Natural Resources. S. Rep. No. 109-17, 151 Cong. Rec. S2148 (daily ed. Mar. 7, 2005). The bill would clear title to certain real property in New Mexico associated with the Middle Rio Grande Project.

BILLS INTRODUCED:

  • S. 531 (Santorum, R-Pa.) (Agricultural Adjustment Act), would amend the Agricultural Adjustment Act to exempt certain identified varieties of tomatoes from agricultural marketing orders. 151 Cong. Rec. S2083 (daily ed. Mar. 4, 2005). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 542 (Dorgan, D-N.D.) (renewable resources), would amend the Internal Revenue Code of 1986 to extend for five years the credit for electricity produced from certain renewable resources. 151 Cong. Rec. S2148 (daily ed. Mar. 7, 2005). The bill was referred to the Committee on Finance.
  • H.R. 1135 (Sherwood, R-Pa.) (Agricultural Adjustment Act), would amend the Agricultural Adjustment Act to exempt certain identified varieties of tomatoes from agricultural marketing orders issued by the Secretary of Agriculture. 151 Cong. Rec. H988 (daily ed. Mar. 7, 2005). The bill was referred to the Committee on Agriculture.
  • H.R. 1138 (McMorris, R-Wash.) (land conveyance), would require the conveyance of a small parcel of federal land in the Colville National Forest, Washington. 151 Cong. Rec. H988 (daily ed. Mar. 7, 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

EUROPEAN UNION ENVIRONMENT COUNCIL MEETING:

WORLD WATER DAY 2005:

  • March 22, 2005, is World Water Day. The theme of World Water Day 2005 is: Water for Life 2005-2015. The international observance of World Water Day is an initiative that grew out of the 1992 United Nations Conference on Environment and Development in Rio de Janeiro. See http://www.worldwaterday.org

BRAZILIAN CONGRESS PASSES BIOTECHNOLOGY LAW:

  • The International Herald Tribune reported on March 4, 2005, that both houses of Brazil's Congress have now passed a controversial law allowing the planting of genetically modified crops. This law, which is expected to be signed into law by President Luiz Inácio Lula da Silva in the near future, will lift a longstanding ban against genetically modified crops in Brazil. Brazil, one of the last major agricultural producers to embrace genetically modified crops, supplies more than a quarter of the world's soybeans. See http://www.iht.com/articles/2005/03/03/business/seed.html

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

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