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Weekly Update Volume 32, Issue 28



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


The Second Circuit vacated and remanded a district court decision dismissing residents' CWA claims against a town for applying pesticides for mosquito control in federal wetland areas without an NPDES or state pollution discharge elimination system (SPDES) permit. The residents alleged that an NPDES/SPDES permit was required under the CWA because the pesticides constitute "pollutants" discharged from a "point source" directly into waters of the United States. The lower court dismissed the case on summary judgment, holding that pesticides, when used for their intended purpose, do not constitute a "pollutant" for purposes of the CWA and are more appropriately regulated under FIFRA. The district court, however, acted on the basis of an incomplete record. The court unnecessarily curtailed or foreclosed discovery sought by the residents and failed to consider a number of threshold questions of law. Moreover, until EPA articulates a clear interpretation of current law--among other things, whether properly used pesticides released into or over waters of the United States can trigger the requirement for NPDES permits--the question of whether properly used pesticides can become pollutants that violate the CWA remains open. Altman v. Town of Amherst, N.Y., No. 01-7468 (2d Cir. Sept. 26, 2002) (7 pp.).


The Ninth Circuit held that individuals and state agencies have standing to bring suit against the BLM for possible damages from heightened water salinity that will occur in their area due to the BLM's water resources management plan even though the individuals and state agencies have not yet suffered any injury. The necessary showing for standing by the individuals is not that the applicable salinity standard has already been exceeded or that the individuals' crops have already been damaged by excessively saline water, but that the individuals face significant risk that the crops that they have planted will not survive as a result of the BLM's decision to discharge water from a nearby reservoir into sources other than the river that feeds the individuals' property. The individuals need not wait to challenge the BLM's action until after the BLM's water management policy results in a violation of the salinity standard and their crops are damaged or destroyed. This conclusion is consistent with other circuit courts that have recognized a credible threat of harm is sufficient to constitute actual injury for standing purposes, whether or not a statutory violation has occurred. Here, the risk of harm to the individuals' crops is not so speculative or diffuse as to render the controversy a hypothetical one; rather, the risk is sufficient to afford the individuals standing. Similarly, the state agencies have standing to challenge the BLM's water management decision because the agencies seek to protect interests germane to their purposes. The lower court's grant of summary judgment in favor of the BLM was therefore reversed. Central Delta Water Agency v. United States, No. 01-16172 (9th Cir. Sept. 26, 2002) (23 pp.).


The Third Circuit affirmed a district court dismissal of a fruit products manufacturer's suit challenging a Pennsylvania town's implementation of a pretreatment program at the town's POTW in order to ensure compliance with its CWA NPDES permit. The manufacturer's discharge to the POTW included large amounts of organic matter, which created a large amount of solid waste and sludge. The POTW had difficulty disposing of the sludge, which led to violations of the POTW's NPDES permit. EPA determined that the POTW needed to implement an influent pretreatment program. The town and EPA entered a consent decree requiring implementation of the pretreatment program, and the town subsequently enacted an ordinance incorporating federal and state pretreatment standards into its POTW industrial waste discharge requirements. The manufacturer filed suit claiming that EPA erred in requiring the pretreatment program, that the pretreatment program violated its state and federal constitutional rights, and that the POTW's rate structure breached a contract the manufacturer had with the town. A district court dismissed these claims and the manufacturer appealed. The manufacturer did enter a 1972 contract with the town regarding its POTW fee, and a 1978 town ordinance enacted a different fee structure. However, the manufacturer's breach of contract claim is barred by the statute of limitations, and the 1972 contract is not a continuing contract that brings the claim within the statute of limitations. Even if the contract was continuing, the claim is still barred by the statute of limitations because the manufacturer failed to bring its claim within the required time period from the first outright repudiation of the contract, which was the passage of the 1978 fee ordinance. Moreover, EPA's decision to require the town to implement the pretreatment program for industrial wastewater was not arbitrary and capricious. EPA may require a POTW to implement a pretreatment program if the nature of the industrial influent, treatment processes, effluent limitation violations, or other circumstances warrant one in order to prevent interference with the POTW or pass through. "Pass through" is a discharge to U.S. waters, and "interference" is a discharge from the POTW that causes violation of the NPDES permit. EPA properly determined that there were circumstances at the POTW creating potential for pass through or interference and that pretreatment of influent would help alleviate the problem. Further, sufficient evidence indicated the potential for pass through or interference. In addition, the district court properly granted summary judgment against the manufacturer on its constitutional claims. Welch Foods, Inc. v. Borough of North East, No. 01-3456 (3d Cir. Sept. 13, 2002) (6 pp.).


The Third Circuit affirmed a district court decision that a chemical manufacturer that entered into a CERCLA consent decree with EPA to clean up a New Jersey Superfund site could not prove that hazardous waste from two corporations was transported to the site and, therefore, the manufacturer could not seek contribution against the two corporations. The manufacturer alleged that the two corporations used a certain hazardous waste transporter between 1967 and 1970 and that the transporter hauled the corporations' waste to the New Jersey site. However, the evidence offered as proof by the manufacturer was old and contradictory. In the face of the conflicting evidence, the district court relied on contemporaneous records to determine the amount of waste that the transporter received from his clients and the amounts paid by the transporter to deposit waste at the site. It was within the court's discretion to infer that this evidence was more reliable than that offered by the manufacturer. Credible evidence supports the district court's decision that the two corporations were not customers of the transporter during the relevant time period. The manufacturer also failed to prove that the waste generated by the two corporations was actually dumped at the site. In addition, the district court did not err by failing to apply the missing witness rule, which would have permitted the court to infer that because people who prepared one of the corporation's responses to a waste generation survey were not called by the corporations, their testimony would have been unfavorable to the corporations. These witnesses were also available to the manufacturer for deposition and testimony. United States v. Rohm & Haas Co. No. 01-2803 (3d Cir. Sept. 24, 2002) (4 pp.).


The Tenth Circuit held that intervenors in an environmental group's ESA suit lacked standing to appeal a district court decision upholding an FWS biological opinion (BO) for the endangered silvery minnow. The group alleged that the BO was lacking because it relied on an erroneous Burea of Reclamation conclusion that the Bureau lacked discretion to protect the minnow by diverting water from river water stored for irrigation and drinking water. An irrigation district, local water users, the state of New Mexico, and a city intervened in the suit. In a memorandum opinion specifically addressing only the validity of the BO, but not the validity of the ESA suit as a whole, the district court held that the Bureau of Reclamation erred in determining that it lacked discretion to divert stored river water. The court concluded that although the Bureau did have discretion, the FWS' reliance on the Bureau's erroneous conclusion to the contrary did not render the FWS BO faulty. The intervenors and the Bureau appealed this decision. However, the intervenors do not have standing to appeal because they cannot show injury-in-fact. The district court decision stated that the Bureau had the discretion to divert water, not that it would or should. Moreover, the Bureau did not have a proper basis to bring an interlocutory appeal from the district court's decision. The district court decision was not a final decision on the merits, and the Bureau failed to establish a proper basis for an interlocutory appeal. It argued that the district court decision was an express injunction under 28 U.S.C. 1292(a)(1), but the district court's order did not purport to dispose of any motion for injunctive relief; rather, it was clearly directed at the group's request for review of the FWS BO. Rio Grande Silvery Minnow v. Keys, Nos. 02-2130, -2135 (10th Cir. Sept. 11, 2002) (5 pp.).


The Ninth Circuit held that California's Proposition 4, which bans the use of certain traps and poisons to capture or kill wildlife in the state, is preempted by the ESA and the NWRSIA. An environmental group brought suit against the state challenging the part of Proposition 4 that bans the use of leghold traps by any person, arguing that if fewer predatory mammals are trapped, more such mammals will be alive to prey on birds. Both individual trappers and a trappers' association intervened in the suit. The district court correctly held that the environmental group has standing to bring the suit against the state department of fish and game and that its claims are ripe and not moot. The district court, however, erred in determining that the trappers lacked standing to bring their claims. The trappers suffered actual, discrete, and direct injury-in-fact in the form of financial losses incurred from the prohibition on trapping contained in Proposition 4; the trappers' economic injury is fairly traceable to the enactment of Proposition 4; and the trappers' injury is redressable. As for the merits of the case, the ESA preempts Proposition 4 to the extent that it prevents federal agencies from protecting ESA-listed species. The state's interpretation of Proposition 4--that it does not apply to federal trapping programs under the ESA--is an unlikely reading of the text. Under the ESA, a state is allowed to pass laws and promulgate regulations that would conserve wildlife, but only insofar as those laws and regulations are consistent with the protection of endangered species under the ESA. There is no exception in the ESA that would allow a state to conserve wildlife that is not endangered, such as the predatory mammals in this case, when the effect of that conservation would be to further endanger species already listed as endangered under the ESA. Additionally, the NWRSIA preempts Proposition 4's regulation of federal trapping on national wildlife refuges in California because the ban on leghold traps conflicts with the FWS' statutory management authority on those federal reserves. Lastly, Proposition 4 does not violate the Commerce Clause by discriminating against interstate commerce, and it does not place an undue burden on interstate commerce in comparison to its putative benefits. National Audubon Society, Inc. v. Davis, Nos. 01-15159 et al. (9th Cir. Sept. 24, 2002) (38 pp.).


The Eleventh Circuit held that the U.S. Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), did not prohibit the use of the catalyst test as a basis for awarding attorneys fees and costs under the ESA. An environmental group brought a suit against a county alleging that the county was taking sea turtles in violation of the ESA. During the course of the litigation, the county voluntarily adopted ordinances that provided for increased protection of sea turtles. Although the environmental group did not receive the relief it sought from the district court, the court awarded the group attorneys fees under the theory that the group's suit was the catalyst for the improved protection of sea turtles. While most federal statutes reserve the award of attorneys fees for the prevailing party, the ESA allows courts to award costs of litigation to any party "whenever the court determines such award is appropriate." The county appealed the court's award of attorneys fees, arguing that the catalyst theory on which the district court relied in awarding fees to the environmental group was invalidated by the Supreme Court's decision in Buckhannon. In that decision, the Court held that the catalyst test is not a permissible basis for the award of attorneys fees under two "prevailing party" statutes at issue in that case. The Court's decision, however, did not invalidate the use of the catalyst test as a basis for awarding attorneys fees under the ESA. There is unambiguous evidence that Congress intended the "whenever . . . appropriate" fee provisions of the CAA and the CWA to allow fee awards to plaintiffs who do not obtain court-ordered relief but whose suit has a positive catalytic effect, and it is likely that Congress intended the identical "whenever . . . appropriate" language of the ESA to have the same effect. Additionally, the Court's opinion in Buckhannon made no reference to the "whenever . . . appropriate" class of fee-shifting statutes. Further, the policy considerations discussed in Buckhannon--that a mischievous defendant could avoid liability for attorneys fees by voluntarily changing conduct--is inapplicable in the context of the ESA where only equitable relief is available. Because the district court's finding that the environmental group's suit had a catalytic effect was not clearly erroneous, the award of attorneys fees to the environmental group was affirmed. Loggerhead Turtle v. County Council of Volusia County, Florida, No. 01-12164 (11th Cir. Sept. 30, 2002) (9 pp.).


The Ninth Circuit affirmed a district court decision not to enjoin cattle grazing in a case brought by an environmental group claiming that the U.S. Forest Service failed to complete consultation under the ESA on the grazing allotments and their effect on the loach minnow. The district court properly held that the Forest Service had not completed consultation required by the ESA on the allotments at issue. Nevertheless, there has not been a sufficient showing of irreparable harm in order to grant the injunction. While courts must generally impose an injunction given a procedural violation of the ESA, this case fits a narrow exception. ESA §7(d) provides that after initiation of consultation, no irreversible or irretrievable commitment of resources shall be made that will have the effect of foreclosing any reasonable and prudent measures. The protections afforded in §7(d) continue until the requirements of §7(a)--that any federal agency action is not likely to jeopardize the continued existence of any threatened or endangered species--are met. Non-jeopardizing agency action may take place during the consultation process in light of the protections of ESA §7(d) where the action will not result in substantive violations of the Act. There was evidence in the record that the Forest Service was taking mitigating measures to ensure that the cattle grazing would have little, if any, effect on the loach minnow while consultation was taking place; that cattle were being excluded from riparian areas and that these areas were being monitored; and that the conditions were actually improving given the protective measures that had already been undertaken. The record supports the district court's conclusion that the loach minnow is not likely to be harmed and there is no irreversible commitment of resources that would foreclose reasonable and prudent alternatives should they be suggested at the conclusion of consultation. Further, the environmental group satisfied the jurisdictional notice requirements under the ESA. Southwest Center for Biological Diversity v. United States Forest Service, Nos. 01-16092, -16277 (9th Cir. Oct. 2, 2002) (23 pp.).


The Ninth Circuit affirmed a district court's grant of a permanent injunction, which imposed interim conditions on grazing and a timetable for the issuance of new permits, against the BLM for violating NEPA in its issuance of grazing permits to cattle ranchers in the Owyhee Resource Area. The environmental groups that brought the suit did not have to exhaust their administrative remedies in challenging the permits because the BLM's regulations do not allow for the agency decision to be rendered inoperative pending administrative appeal. If there was no lawfully authorized grazing in the year before the suit was brought, the administrative procedure would be meaningless. The BLM would grant a grazing permit, the aggrieved party would file an appeal and an application for a stay, a hearing would be held, and if the stay were granted grazing would continue under the terms and conditions of the permit that was being appealed until the appeal was finally decided. This procedure does not render the decision inoperative by any sane reckoning, and, therefore, there is no requirement for exhaustion of administrative remedies. Similarly, if there was lawfully authorized grazing in the previous year, exhaustion of administrative remedies is not required on the facts of this case. Even if a stay were granted, grazing could continue for many years according to the prior year's grazing practices. Thus, a stay would not render the permit decision inoperative but would actually implement an unreviewed decision to renew grazing authorizations while allowing grazing practices that are known to harm the environment. Additionally, the BLM's decision was final and appropriate for judicial review because the initial agency decisionmaker arrived at a definitive position and put the decision into effect. Further, the filing and dismissing of administrative appeals by one of the environmental groups does not affect that group's ability to pursue the case in federal court. Moreover, on the facts of the case, the district court did not err by imposing interim protection measures without holding an evidentiary hearing. The BLM itself, which was subject to the injunction, proposed the terms of the interim protective measures, the measures at issue are temporary, and all parties will have adequate opportunity to participate in the determination of permanent measures. Finally, the district court had proper legal authority to issue the injunction, used the correct standards, made adequate findings of fact and conclusions of law, and did not abuse its discretion in determining the scope of the injunction. Idaho Watersheds Project v. Hahn, Nos. 01-35033 et al. (9th Cir. Sept. 24, 2002) (32 pp.).


The Ninth Circuit affirmed a district court holding that a city's denial of a company's application to develop shoreline property did not violate the company's state or federal due process rights and did not result in a taking. The company's federal due process claim was properly dismissed because federal substantive due process claims are precluded where the alleged violation is addressed by explicit textual provisions of the U.S. Constitution, specifically, the Fifth Amendment's takings clause. The company's state due process claim also failed because the Washington Constitution provides no greater substantive due process protection than that afforded by the U.S. Constitution. In addition, the city's denial of the company's application for development did not constitute a taking. Background principles of state law, namely, the public trust doctrine, would have precluded development of the proposed project. Here, the public trust doctrine unquestionably burdens the company's property. The doctrine reserves a public property interest in tidelands and the waters flowing over them, despite the sale of these lands into private ownership. The state cannot convey or give away this interest. Instead, it may only divest itself of interests in the state's waters in a manner that does not substantially impair the public interest. Thus, the company's claimed property right never existed, and no taking occurred. Esplanade Properties, LLC v. City of Seattle No. 01-36112 (9th Cir. Oct. 3, 2002) (16 pp.).


The Eighth Circuit affirmed a district court decision that a company is collaterally estopped from seeking indemnity from its insurer in a hazardous waste contamination case due to a prior state court ruling. The company was sued for trespass and negligence by its neighbor in state court when a UST containing coal tar wastes on the neighbor's property was ruptured by the company's contractor. The insurer brought suit against the company in federal court claiming that there was no duty to defend or indemnify based on the absolute pollution exclusions in the policy. A district court held that the insurer did not have a duty to defend. On appeal, the Eight Circuit held that the insurer breached its duty to defend the company on the trespass claim and remanded the case for consideration of damages and the duty to indemnify. The parties settled the issue of damages on the breach of duty to defend claim. The district court correctly held in favor of the insured on the indemnity claim. Although the insurer breached its duty to defend, it may still litigate the indemnity issue. Here, collateral estoppel bars the company from relitigating the issue of whether it trespassed on its neighbor's property. Consequently, there is no covered offense and the insurer has no duty to indemnify. In a previous state court action, the company's contractor filed a motion arguing that no trespass occurred because the contractor had implied permission to work at the site. The court granted the motion, the company and the neighbor settled their part of the dispute, and then all parties to the state court action stipulated to dismissal of all claims against the company with prejudice. The state court's dimisssal of the trespass claim against the contractor was a final judgment on the merits to which collateral estoppel may apply; the lack of appellate review does not affect either the finality of the ruling or its preclusive effect. Royal Insurance Co. of America v. Kirksville College of Osteopathic Medicine, Inc., No. 01-3645 (8th Cir. Sept. 23, 2002) (9 pp.).


The Eleventh Circuit held that DOE's amended contract with a nuclear power plant operator constituted a direct payment of Nuclear Waste Fund (NWF) monies and was unlawful under the NWPA. DOE entered into contracts with the nuclear power plants to fulfill the requirements of the NWPA, which states that DOE takes responsibility for disposing of nuclear waste while the owners and operators of nuclear power plants cover the full cost by paying into the NWF. The NWF is the only source of funding that Congress identified in the NWPA for matters relating to the programs and policies established pursuant to the Act. Although the NWPA allows Congress to make appropriations to the NWF beyond those monies that the standard contract holders deposit into it, the Act provides that the fees charged to the generators of spent nuclear fuel (SNF) for permanent disposal should fully offset the costs of developing and operating such facilities. When it became clear that DOE would not meet its contractual requirement to begin disposal of the SNF by 1998, thereby imposing additional storage costs on the standard contract holders, the standard contract holders filed suit alleging breach of contract, breach of a duty of good faith, and a taking. Before a final decision in that case was reached, DOE entered into an amended contract with one standard contract holder that gave that power plant an equitable adjustment by allowing it an offset against future payments that the power plant is obligated to pay into the NWF. Other standard contract holders challenged the amended contract's validity by arguing that it was not an authorized use of NWF monies. The standard contract holders have standing to sue DOE. Because the NWF is designed to collect all of the costs for disposing of SNF, any shortfall in the NWF caused by the amended contract would have to be made up by fees paid by other standard contract holders. Alternatively, if there were to be excess dollars in the NWF, the standard contract holders would be deprived of the reductions that would otherwise ensue. In either circumstance, they will be forced to pay for the damages resulting from DOE's breach of the amended contract and will suffer an injury that is redressable by precluding DOE from expending NWF monies in this way. Additionally, the NWPA does not allow DOE to utilize NWF monies to pay for the interim storage costs of DOE's contract creditors. When DOE granted the power plant an offset against the fees it would otherwise be required to pay into the NWF, this action was tantamount to an expenditure of NWF dollars on the power plant's continued interim storage costs as a result of DOE's breach. It is clear that DOE may not do this. The NWPA provides that DOE may make expenditures from the NWF only for purposes of radioactive waste disposal activities, and an expenditure in interim storage is not an act of disposal. Further, common sense and a practical understanding of the regulatory scheme Congress envisioned dictate against DOE's actions. If DOE could pay for its breach out of a fund paid for by the utilities, the government would never be liable. And those utilities that neither settle nor litigate their claims would end up paying greater fees to cover the costs of other utilities. By establishing a contract and a quid pro quo arrangement, the regulatory scheme contemplates that the ultimate burden of the government's breach fall on the government, not on other utilities. Alabama Power Co. v. United States Department of Energy, No. 00-16138 (11th Cir. Sept. 24, 2002) (15 pp.).


The Federal Circuit upheld the dismissal of a subcontractor's Contract Disputes Act and Tucker Act claims against the DOE that arose in connection with the cleanup of a nuclear waste site at the Idaho National Engineering and Environmental Laboratories complex near Idaho Falls, Idaho. An environmental remediation company entered into a contract with the government to oversee cleanup of the site. It hired one of its subsidiaries as a prime contractor, and the prime contractor then hired a subcontractor, which also was a subsidiary of the remediation company. Because the prime contractor and subcontractor were both subsidiaries of the same parent company, DOE required a mitigation plan to cover any conflicts of interest. DOE retained contracting power over the cleanup until the mitigation plan was implemented. The subcontractor was unable to perform the work, and the prime contractor terminated the services of the subcontractor. The prime contractor then filed suit against the United States alleging claims under the Contract Disputes Act, the Tucker Act, and the Fifth Amendment. The prime contractor also filed suit against the subcontractor and the subcontractor's parent. The subcontractor and the parent counterclaimed, alleging the same Contract Disputes Act, Tucker Act, and Fifth Amendment claims that the prime contractor brought against the government. The subcontractor's and parent's claims were properly dismissed. There is no basis for privity between the subcontractor and DOE. Congress waived sovereign immunity when it permitted lawsuits under the Contract Disputes Act and Tucker Act. However, that waiver must be strictly construed. The subcontractor argued that the government stepped into the prime contractor's shoes and, therefore, was in privity with the subcontractor through the prime contractor. However, DOE's exercise of sovereign acts, without more, does not make the contractor an agent of DOE. The subcontractor failed to show how the government's actions while the prime contractor developed the mitigation plan, or the mitigation plan itself, manifested an intent by the government to waive its sovereign immunity. The subcontractor's theories of direct control or direct dealings as a basis for privity fail because direct interaction between the government and a subcontractor do not, by themselves, constitute a contract. Nor did the prime contractor act as an agent of DOE because the record shows no clear contractual consent between the parties. Additionally, because the parent company raises for the first time on appeal an independent cause of action based on a guarantee of performance it offered, it has waived that argument, and the court did not reach the issue. Lockheed Martin Corp. v. United States, No. 02-5042 (Fed. Cir. Sept. 30, 2002) (7 pp.).


The Second Circuit affirmed a district court dismissal of an electric power utility company's claims against FERC and a state public service commission that PURPA preempts a state-enacted minimum sales price for kilowatt hours of power. PURPA and its regulations prohibit FERC from providing for a rate of sale that exceeds the incremental cost to the electric utility of alternative energy. The state enacted a law that required the state public service commission to establish a minimum sales price of at least six cents per kilowatt hour for power purchased from state qualifying cogeneration facilities. The company initiated this action against the state commission and FERC, claiming that the incremental cost limitation in PURPA preempts the state's ability to enact the six-cent law and the commission's ability to enforce it. The company, however, cannot maintain a claim against FERC under PURPA because the only private right of action under the Act allows for an electric utility to bring suit against a state regulatory authority or a nonregulated electric utility. FERC is neither of those. Similarly, the company may not maintain an action against FERC under the APA. No statute provides for judicial review of FERC decisions interpreting PURPA, and a district court is perfectly capable of determining whether FERC's interpretation of PURPA is reasonable. Additionally, the district court properly dismissed the company's claims against the state commission under PURPA for lack of subject matter jurisdiction because the company failed to exhaust its administrative remedies by petitioning FERC to bring an enforcement action against the commission. Further, although the district court's reasoning for dismissing the company's Supremacy Clause claim against the commission was incorrect, the claim should nonetheless be dismissed because it presents the same legal theory as the PURPA claim and the company failed to exhaust its administrative remedies. Niagara Mohawk Power Corp. v. Federal Energy Regulatory Commission, No. 01-6215 (2d Cir. Sept. 25, 2002) (9 pp.).


The Sixth Circuit affirmed a district court decision that a Native American tribe can not force the state of Michigan to enter into negotiations for a casino under the Indian Gaming Regulatory Act because the tribe failed to satisfy the statutory prerequisite of owning Native American lands. Under the Act, a tribe can require a state to enter into negotiations concerning the establishment of a casino by making a formal request to the state. If the parties do not reach an agreement within 180 days after the request is made or if the state fails to bargain in good faith, the tribe may invoke federal court jurisdiction to compel the state to negotiate in good faith. Here, the tribe made a formal request to the state's governor to enter into negotiations with the tribe to open a casino. The state declined to negotiate, and after 180 days, the tribe filed this action requesting that the district court order the state to conclude a gaming compact. The district court, however, lacked jurisdiction to hear the case because the lands the tribe intends to use for gaming are not Native American lands, and ownership of Native American lands is a jurisdictional prerequisite to relief. The tribe must own Native American lands and plan to conduct gaming on those lands before a federal court can have jurisdiction. In this case, the tribe does not own Native American lands as defined by federal regulations. Additionally, because the court is dismissing the case on a jurisdictional issue, it is not required to reach the merits of the case--whether the state fulfilled its obligation to negotiate in good faith and reach an agreement within the statutory time frame. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler, No. 01-1624 (6th Cir. Sept. 20, 2002) (3 pp.).


A district court held that federal and state agencies conducted sufficient environmental review under NEPA and SEQRA regarding the proposed construction of an interstate highway exchange near an airport. The state and federal agencies did not ignore or manipulate relevant traffic data used in the EIS and the final EIS; improperly segment environmental review of the interchange; or fail to consider the growth and cumulative impacts of other projects that are contemplated and in conjunction with the proposed project at issue. Additionally, the U.S. Department of Transportation did not violate the Department of Transportation Act when it determined that lands adjacent to the airport and purchased for transportation purposes were not entitled to protection under §4(f) of the Act. Although the lands were clearly publicly owned, they were not designated or administered as a public park, recreational area, or wildlife and waterfowl refuge. Once the land was purchased for transportation purposes, the mere fact that the owners of the property permitted interim use as a park does not entitle the land to §4(f) protection. Stewart Park & Reserve Coalition, Inc. v. Slater, No. 00-CV-1606 (N.D.N.Y. Sept. 30, 2002) (23 pp.).

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


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


  • EPA amended the NESHAPs for secondary aluminum production. 67 FR 59787 (9/24/02).

  • EPA approved a negative declaration submitted by Ohio that indicates that the state does not need regulations covering existing small municipal waste combustor units. 67 FR 61270 (9/30/02).


  • EPA entered into a proposed administrative settlement in connection with the Anniston PCB Superfund site in Anniston, Alabama. 67 FR 60681 (9/26/02).

  • EPA amended a proposed administrative settlement under CERCLA §122(i) in connection with the Beede Waste Oil Superfund site in Plaistow, New Hampshire. 67 FR 60238 (9/25/02).

  • EPA entered into a proposed administrative settlement under CERCLA §122(h)(1) in connection with the Koppers Charleston Superfund site in Charleston, South Carolina. 67 FR 61624 (10/1/02).

  • EPA entered into a proposed administrative settlement under CERCLA §§107 and 122(g) and (h) in connection with the Zionsville Third Site Superfund site in Zionsville, Indiana. 67 FR 61624 (10/1/02).
  • EPA entered into a proposed prospective purchaser agreement under CERCLA concerning the Barber Orchard Superfund site in Waynesville, North Carolina. 67 FR 61340 (9/30/02).
  • EPA entered into a proposed administrative settlement under CERCLA §122(g) in connection with the Marina Cliffs/Northwestern Barrel hazardous waste site in South Milwaukee, Wisconsin. 67 FR 62244 (10/4/02).
  • EPA proposed to amend an administrative settlement it entered into under CERCLA §122(g) and (h) in connection with the Marina Cliffs/Northwestern Barrel hazardous waste site in South Milwaukee, Wisconsin. 67 FR 62245 (10/4/02).
  • EPA approved Hawaii's UST program for petroleum and hazardous substances. 67 FR 60161 (9/25/02).
  • The Agency for Toxic Substances and Disease Registry announced the availability of three draft interaction profiles for review and comment. 67 FR 60685 (9/26/02).


  • EPA announced the availabilty of the draft Contact Information Data Standard for comment. 67 FR 60236 (9/25/02).


  • NOAA amended its regulations for the assessment of natural resource damages under §1006(e)(1) of the Oil Pollution Act. 67 FR 61483 (10/1/02).


  • EPA entered into a consent agreement with IPSCO Steel, Inc., for CAA, CWA, and RCRA violations and assessed a civil penalty of $19,743.00. 67 FR 62054 (10/3/02).


  • OSM proposed to approve an amendment to Kansas' regulatory program under SMCRA. 67 FR 59484 (9/23/02).


  • EPA announced the availability of a draft document, Border 2012: U.S.-Mexico Environmental Program. 67 FR 59841 (9/24/02).


  • EPA revoked significant new use rules for eight substances promulgated under TSCA §5(a)(2). 67 FR 60991 (9/27/02).
  • EPA approved Illinois' application to administer and enforce training and certification requirements, training program accreditation requirements, and work practice standards for lead-based paint activities in target housing and child-occupied facilities under TSCA §402. 67 FR 61102 (9/27/02).


  • EPA announced the availability of draft NPDES general permits for storm water discharges from certain small municipal separate storm sewer systems in Massachusetts, New Hampshire, and Vermont, and in Indian Country lands in Connecticut, Massachusetts, and Rhode Island. 67 FR 61103 (9/27/02).
  • EPA issued the final NPDES general permit for construction dewatering activity discharges in Massachusetts and Hew Hampshire. 67 FR 59503 (9/23/02).


  • FWS added all species of snakehead fishes in the Channidae family to the list of injurious fish, mollusks, and crustaceans, thereby prohibiting the species from being imported or transported into the United States. 67 FR 62193 (10/4/02).
  • FWS designated critical habitat for the Appalachian elktoe, a freshwater mussel. 67 FR 61016 (9/27/02).

  • FWS amended regulations governing the take of the threatened Preble's meadow jumping mouse in order to exempt certain noxious weed control and ditch maintenance activities from the ESA §9 take prohibitions. 67 FR 61531 (10/1/02).
  • FWS announced the availability of a draft economic analysis for the proposed designations of critical habitat for plant species from the islands of Maui and Kahoolawe, Hawaii. 67 FR 61845 (10/2/02).

  • The National Marine Fisheries Service amended the regulations that implement the Atlantic Large Whale Take Reduction Plan in order to reduce the risk of entanglement of large whales by gillnets. 67 FR 59471 (9/23/02).


  • United States v. Buena Vista Mines, Inc., No. 98-7226 SVW (RNBx) (C.D. Cal. Sept. 16, 2002). Settling CERCLA defendants must pay a total of $500,000 in civil penalties and treble damages for failing to comply with an administrative cleanup order and in EPA response costs incurred at the Buena Vista/Klau Mine site near Paso Robles, California; a third-party defendant must pay $100,000. 67 FR 62075 (10/3/02).
  • United States v. General Iron Industries, Inc., No. 01 C 4889 (N.D. Ill. Sept. 19, 2002). A settling CERCLA defendant must pay $1.8 million to the Hazardous Substances Superfund as partial reimbursement of U.S. response costs incurred at the Estech Chemical Company site in Calumet City, Illinois. 67 FR 62076 (10/3/02).
  • United States v. Wolcottville Sand & Gravel Corp., Nos. 98-CV-74192, 98-73730 (E.D. Mich. Sept. 16, 2002). A settling CWA defendant that violated its NPDES permit at its limestone quarry in Milan, Michigan, must modify its mining operations, must surrender its NPDES permit, must pay a $75,000 civil penalty, must perform certain supplemental environmental projects at a cost of $360,000, and must undertake two restoration projects. 67 FR 62076 (10/3/02).

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



  • S. 434 (Native American lands), which would provide equitable compensation to the Unction Sioux Tribe of South Dakota and the Santee Sioux Tribe of Nebraska for the loss of value of certain lands, was passed by the House. 148 Cong. Rec. H6864 (daily ed. Oct. 1, 2002).
  • H.R. 3534 (Native American lands), which would provide for the settlement of certain land claims of Cherokee, Choctaw, and Chickasaw Nations to the Arkansas Riverbed in Oklahoma, was passed by the House. 148 Cong. Rec. H6879 (daily ed. Oct. 1, 2002).
  • H.R. 3802 (Education Land Grant Act), which 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, was passed by the House. 148 Cong. Rec. H6872 (daily ed. Oct. 1, 2002).
  • H.R. 3813 (mining), which would modify requirements relating to allocation of interest that accrues to the Abandoned Mine Reclamation Fund, was passed by the House. 148 Cong. Rec. H6864 (daily ed. Oct. 1, 2002).
  • H.R. 4129 (Central Utah Project), which would amend the Central Utah Project Completion Act to clarify the responsibilities of the Secretary of the Interior with respect to the Central Utah Project, would redirect unexpended budget authority for the Central Utah Project for wastewater treatment and reuse and other purposes, would provide for prepayment of repayment contracts for municipal and industrial water delivery facilities, and would eliminate a deadline for such prepayment, was passed by the House. 148 Cong. Rec. H6875 (daily ed. Oct. 1, 2002).
  • H.R. 4141 (land acquisition), which would authorize the acquisition by exchange of lands for inclusion in the Red Rock Canyon National Conservation Area, Clark County, Nevada, was passed by the House. 148 Cong. Rec. H6872 (daily ed. Oct. 1, 2002).
  • H.R. 4874 (federal ands), which would direct the Secretary of the Interior to disclaim any federal interest in lands adjacent to Spirit Lake and Twin Lakes in the Idaho resulting from possible omission of lands from an 1880 survey, was passed by the House. 148 Cong. Rec. H6876 (daily ed. Oct. 1, 2002).
  • H.R. 4944 (Cedar Creek Battlefield and Belle Grove Plantation National Historical Park), which would designate the Cedar Creek Battlefield and Belle Grove Plantation National Historical Park as a unit of the National Park System, was passed by the House. 148 Cong. Rec. H6869 (daily ed. Oct. 1, 2002).
  • H.R. 4968 (land exchange), which would provide for the exchange of certain lands in Utah, was passed by the House. 148 Cong. Rec. H6862 (daily ed. Oct. 1, 2002).
  • H.R. 5460 (Federal Water Project Recreation Act), which would reauthorize and amend the Federal Water Project Recreation Act, was passed by the House. 148 Cong. Rec. H6867 (daily ed. Oct. 1, 2002).


  • S. 198 (noxious weeds; invasive species) was reported by the Senate Committee on Energy and Natural Resources. S. Rep. No. 107-281, 148 Cong. Rec. S8671 (daily ed. Sept. 17, 2002). The bill would require the Secretary of the Interior to establish a program to provide assistance through states to eligible weed management entities to control or eradicate harmful, nonnative weeds on public and private land.
  • S. 2608 (CZMA) was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 107-296, 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill would authorize the acquisition of coastal areas in order better to ensure their protection from conversion or development.
  • H.R. 3476 (Native American lands) was reported by the House Committee on Resources. H. Rep. No. 107-708, 148 Cong. Rec. H6925 (daily ed. Oct. 1, 2002). The bill would protect certain lands held in fee by the Pechanga Band of Luiseno Mission Indians from condemnation until a final decision is made by the Secretary of the Interior regarding a pending fee to trust application for that land.
  • H.R. 4141 (land acquisition) was reported by the Committee on Resources. H. Rep. No. 107-705, 148 Cong. Rec. H6925 (daily ed. Oct. 1, 2002). The bill would authorize the acquisition by exchange of lands for inclusion in the Red Rock Canyon National Conservation Area, Clark County, Nevada.
  • H.R. 4968 (land exchange) was reported by the House Committee on Resources. H. Rep. No. 107-709, 148 Cong. Rec. H6925 (daily ed. Oct. 1, 2002). The bill would provide for the exchange of certain lands in Utah.
  • H.R. 5097 (Salt River Bay National Historical Park) was reported by the House Committee on Resources. H. Rep. No. 107-707, 148 Cong. Rec. H6925 (daily ed. Oct. 1, 2002). The bill would adjust the boundaries of the Salt River Bay National Historical Park and Ecological Preserve located in St. Croix, Virgin Islands.


  • S. 2928 (Jeffords, I-Vt.) (CWA) would amend the CWA and the Water Resources Development Act of 2000 to modify provisions relating to the Lake Champlain basin. 148 Cong. Rec. S8665 (daily ed. Sept. 12, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3021 (Voinovich, R-Ohio) (national wildlife refuges) would establish in Ohio a wildlife refuge complex comprised of land designated as national wildlife refuges. 148 Cong. Rec. S9714 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3022 (Roberts, R-Kan.) (conservation reserve program) would amend the Food Security Act of 1985 to suspend the requirement that rental payments under the conservation reserve program be reduced by reason of harvesting or grazing conducted in response to a drought or other emergency. 148 Cong. Rec. S9714 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3023 (Sarbanes, D-Md.) (Chesapeake Bay watershed) would require the Secretary of Agriculture to establish a program to expand and strengthen cooperative efforts to restore and protect forests in the Chesapeake Bay watershed. 148 Cong. Rec. S9714 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3024 (Sarbanes, D-Md.) (Catoctin Mountain National Recreation Area) would designate Catoctin Mountain Park in the state of Maryland as the "Catoctin Mountain National Recreation Area." 148 Cong. Rec. S9714 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3025 (Sarbanes, D-Md.) (Chesapeake Bay Environmental Restoration and Protection Program) would reauthorize and improve the Chesapeake Bay Environmental Restoration and Protection Program. 148 Cong. Rec. S9714 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3031 (Baucus, D-Mont.) (highway projects) would amend title 23, United States Code, to reduce delays in the development of highway and transit projects. 148 Cong. Rec. S9846 (daily ed. Oct. 2, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3036 (Daschle, D-S.D.) (civil works) would establish a commission to assess the performance of the civil works functions of the Secretary of the Army. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3037 (Jeffords, I-Vt.) (CWA) would amend the CWA to improve protection of treatment works from terrorists and other harmful intentional acts. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3038 (Jeffords, I-Vt.) (Lacey Act; wildlife conservation) would amend the Lacey Act Amendments of 1981 to further the conservation of certain wildlife species. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3045 (Clinton, D-N.Y.) (CWA) would amend the CWA to provide for the protection and enhancement of the environmental integrity and the social and economic benefits of the Finger Lakes Region in New York. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • S. 3046 (Craig, R-Idaho) (land conveyance) would provide for the conveyance of federal land in Sandpoint, Idaho. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3047 (Craig, R-Idaho) (national forest lands) would authorize the Secretary of Agriculture to sell or exchange all or part of certain parcels of National Forest System land in the state of Idaho and use the proceeds derived from the sale or exchange for National Forest System purposes. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3049 (Allen, R-Va.) (CWA) would prohibit EPA from issuing or renewing certain NPDES permits. 148 Cong. Rec. S9901 (daily ed. Oct. 3, 2002). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 5512 (Dunn. R-Wash.) (Mount Rainier National Park) would provide for an adjustment of the boundaries of Mount Rainier National Park. 148 Cong. Rec. H6926 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5513 (Hayworth, R-Ariz.) (land exchange) would authorize and direct the exchange of certain land in Arizona between the Secretary of Agriculture and Yavapai Ranch Limited Partnership. 148 Cong. Rec. H6926 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5517 (Reyes, D-Tex.) (land conveyance) would provide for the conveyance of the reversionary interest of the United States in certain lands to the Clint Independent School District, El Paso County, Texas. 148 Cong. Rec. H6926 (daily ed. Oct. 1, 2002). The bill was referred to the Committee on International Relations.
  • H.R. 5532 (Andrews, D-N.J.) (CERCLA) would amend CERCLA to require public availability of an accounting of all funds used, or required to be used, for response to a release of a hazardous substance, pollutant, or contaminant. 148 Cong. Rec. H6982 (daily ed. Oct. 2, 2002). The bill was referred to the Committees on Energy and Commerce, and Transportation and Infrastructure.
  • H.R. 5535 (Kaptur, D-Ohio) (land acquisition) would expand the boundaries of the Ottawa National Wildlife Refuge Complex and the Detroit River International Wildlife Refuge. 148 Cong. Rec. H6982 (daily ed. Oct. 2, 2002). The bill was referred to the Committee on Resources.
  • H.R. 5552 (Otter, R-Idaho) (land conveyance) would provide for the conveyance of federal land in Sandpoint, Idaho. 148 Cong. Rec. H6982 (daily ed. Oct. 2, 2002). The bill was referred to the Committees on Transportation and Infrastructure, and Resources.
  • H.R. 5554 (Radanovich, R-Cal.) (CWA) would prohibit EPA from issuing or renewing certain NPDES permits. 148 Cong. Rec. H6982 (daily ed. Oct. 2, 2002). The bill was referred to the Committee on Transportation and Infrastructure.

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


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



  • A United Nations Environment Program (UNEP) mission to Afghanistan found significant environmental problems, including erosion, a virtually complete absence of sanitation facilities, and deforestation. "Based on our preliminary findings, the situation is worse than expected," said monitor Pasi Rinne. "In some areas, the environmental circumstances are so poor that the recovery will probably not happen during our lifetime." "Erosion is such a big problem that the carrying capacity of certain areas--how many people can live in certain areas--is now under threat," Rinne added. Project coordinator Peter Zahler noted that "unless these environmental issues are addressed by the international community and government, no amount of money thrown towards the development and rehabilitation effort in Afghanistan is really going to succeed in the long run."
  • Scientists with NOAA and the National Aeronautics and Space Administration (NASA) confirmed that the ozone hole over Antarctica has decreased in size and split in two this year due to increased temperatures in the southern polar region.
  • Africa Rainforest and River Conservation, a conservation group, said it would locate, train, and equip 400 local residents to patrol areas of the Central African Republic that are subject to poaching. The group will be authorized by the government to shoot poachers.
  • Delegates from Cambodia, the People's Republic of China (Yunnan Province), Lao People's Democratic Republic, Myanmar, Thailand, and Vietnam met to discuss joint environmental safeguards for the Mekong River. See http://www.adb.org/Documents/News/2002/nr2002172.asp
  • A meeting of the Convention on the Conservation of Migratory Species at the treaty's secretariat in Bonn extended protection measures to numerous species, including the great white shark, six species of whales, several migratory birds, the Amazonian manatee, the blind river dolphin, and the hairy-kneed camel. The new designation for the great white shark means that a new regional agreement for southeast Asia may be needed.
  • The United Nations Convention on International Trade in Endangered Species said that Chinese officials in Shanghai seized an illegal shipment of three tons of Kenyan ivory. Over 70 elephants have been killed in Kenya so far this year, compared to 56 during 2001.
  • A UNEP report concluded that over 800 million people living in coastal areas of southern Asia lack access to basic sanitation services. See http://www.unep.org/Documents/Default.asp?DocumentID=266&ArticleID=3139
  • Dolliver Nelson of Grenada was elected as president of the International Tribunal for the Law of the Sea.
  • An article published in Science and written by NASA scientists concluded that the "Asian brown cloud" helps to explain the existence of recent severe droughts and floods in China. In a related commentary, the authors observed that "the contribution of black carbon [soot] to global warming may be substantial, perhaps second only to that of carbon dioxide." An earlier UNEP study, which concentrated on southern Asia, reached much the same conclusion. That report was criticized by Indian researchers, who said that "the study has made sensational statements on the impact of pollution on monsoons and agriculture which are exaggerated and distorted." Center for Atmospheric and Oceanic Sciences chairman J. Srinivasan said that "it appears that the term 'Asian Brown Cloud' for describing wintertime haze over the Asian region is not appropriate and the implicit suggestion that it is a feature that characterizes only the Asian region is incorrect." He went on to add that "a lot of blame is laid at our door. The attitude of the scientists as reflected in the study involves blaming the developing countries in Asia for the pollution of the planet. . . . Rather than advocating international agreements to control pollution, the attitude seems to be one of imposing an asymmetric control regime."


  • A Canadian government internal report concluded that Kyoto Protocol implementation would cost the country 200,000 jobs and $10.4 billion, but the government downplayed the numbers in a presentation to the Cabinet. Business groups contend that more than 450,000 jobs will be lost. An earlier govenment study concluded that compliance costs of roughly $348 million per year would result and that higher taxes would be needed.
  • Prime Minister Jean Chrétien, before Parliament, responded by saying that "many countries have implemented or have voted for Kyoto without any plans at all. Here in Canada we have had discussions for years. We will have a plan and will proceed before the end of the year with a vote in the House of Commons." Yet he also said that "the development of the plan will take 12 years, 10 years, it will not be in operation tomorrow." "There is a good chance that if we don't start, we will not be ready by 2012. So we have to start right now . . . . We will develop the plan. We will give the framework of the plan. But all the pieces of this plan will take 10 years to finalize." Alberta Environment Minister Lorne Taylor said Chrétien's comments reflect the federal government's "confusion" over the costs of implementation. "This government is either incompetent when it comes to this issue, or they have something they don't want to tell Canadians about," he said. "I fear they know what the costs will be; they know how serious the implementation and ratification of Kyoto will be to the economy and they are afraid to tell Canadians."
  • The Canadian Alliance will oppose ratification; the NDP and Bloc Québécois will support it; the Torys are undecided. The Canadian Chamber of Commerce came out in opposition.
  • Former Alberta premier Peter Lougheed interjected the federalism issue, contending that his province "owns" its natural resources. Environment Minister David Anderson responded by noting that "this is not an issue of natural resources. This is an issue of a global problem of emissions, and a global problem in the atmosphere. And the Constitution is very clear that international issues of that type are the domain of the federal government. We can limit emissions in all provinces of Canada and all territories of Canada and we hope that we'll be able to do that with the cooperation of every province and every territory." Ralph Klein, Alberta's current premier, said ratification would be "the goofiest, most devastating thing that was ever conceived and has ever been contemplated by a Canadian government in the history of this country."
  • Shunichi Suzuki, a Liberal Democratic Party member of Japan's House of Representatives, was appointed Environment Minister. He said he would work to get the United States to embrace Kyoto.
  • A study funded by NASA, published in the Journal of Geophysical Research-Atmospheres, concluded that the earth will warm by 2 to 4 degrees Fahrenheit if greenhouse gas emissions are not reduced, and that increases of as much as 1.4 degrees Fahrenheit will likely occur even if carbon dioxide emissions do not increase at a faster rate and other emission reductions do occur.
  • The Chicago Climate Exchange selected NASD as the provider of regulatory services for the exchange.
  • The Democrat party in Thailand urged the government to reverse its stance on refusing to accept foreign assistance pursuant to the Kyoto clean development mechanism. See http://www.bangkokpost.com/News/02Oct2002_news16.html

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

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