Category Archives: Recent Cases – Natural Resources and Endangered Species

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Ninth Circuit Affirms Forest Service’s Authority to “Choose Jobs Over Wolves”

In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. … Continue Reading

Oklahoma Court Dismisses Fracking Earthquake Case Due to Court’s Lack of Scientific Expertise

Sierra Club v. Chesapeake Operating LLC et al., __ F. Supp. 3d ___, 2017 WL 1287546 (W.D. Okla. 2017). The Sierra Club filed a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) against Chesapeake Operating LLC, Devon Energy Production Co. LP, Sandridge Exploration and Production LLC, and New Dominion LLC (collectively, “defendants”), alleging … Continue Reading

Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a district court decision that invalidated the NMFS rulemaking.  The court’s opinion in Alaska Oil & Gas Ass’n v. Pritzker, No. 14-35806, was consistent … Continue Reading

Jurisdictional Determinations Are Reviewable By The Courts

United States Army Corps of Engineers v. Hawkes Co., Inc. (5/31/16, No. 15-290) In a widely anticipated decision in the wake of the Sackette v. EPA (132 S.Ct. 1367 (2012) decision, the U.S. Supreme Court decided that federal courts can review Army Corps of Engineers’ (“Corps”) determinations that a waterbody is subject to Clean Water … Continue Reading

BREAKING: EPA Water Rule Blocked Nationwide By Sixth Circ.

The Sixth Circuit today stayed the effect of the Environmental Protection Agency’s new “Clean Water Rule” nationwide, while the Court of Appeals considers whether it has original jurisdiction to hear challenges to the regulation or whether those challenges should proceed first in the federal district courts. Among other reasons, the court said staying the Rule … Continue Reading

District Court Enjoins Federal Regulations Revising Scope of Clean Water Act Jurisdiction

North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015) A federal judge, Ralph R. Erickson, in North Dakota yesterday granted several states’ request for a preliminary injunction to halt implementation of the Environmental Protection Agency and U.S. Army Corps of Engineers’ new rulemaking redefining the scope of their jurisdiction under the … Continue Reading

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a possible litigation challenge to federal approvals that Shell received for Arctic oil exploration.  After receiving the approvals, but before any … Continue Reading

District Court Strikes Down Regulation of Purely Intrastate Species on Private Land

People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service; et. al., (11/05/14, 2:13-cv-00278-DB) In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that the challenged regulation … Continue Reading

Utility Pole Not A Point Source Under The Clean Water Act

Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013) By Robert Uram, Keith Garner, and Alex Merritt Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with … Continue Reading

Conveyance of Polluted Water Within River Involves No ‘Discharge’ Under Clean Water Act

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __ (2013) By James Rusk The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no … Continue Reading

Recovery Plan Not Binding on Delisting Decisions

Friends of Blackwater, et al. v. Kenneth Lee Salazar, No. 11-5128 (D.C Cir. Aug. 17, 2012) By Phillip Tate On August 17, 2012, the DC Circuit Court overturned a district court ruling that the Fish and Wildlife Service violated the Endangered Species Act (16 U.S.C. §1531 et seq.) by delisting the West Virginia Northern Flying … Continue Reading

Supreme Court to Hear Two Significant Clean Water Cases

By Keith Garner and Maggie Brennan The Supreme Court has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (“CWA”) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must accordingly be regulated by NPDES (National Pollutant Discharge Elimination System) permits under the … Continue Reading

Supreme Court Holds EPA Compliance Order Asserting Clean Water Act Jurisdiction Is Subject to Judicial Review

Sackett v. Environmental Protection Agency, 566 U.S. ___ (2012) (decided March 21, 2012) By James Rusk Private property owners are entitled to immediate judicial review of Environmental Protection Agency compliance orders that seek to regulate their property under the federal Clean Water Act ("CWA"), the Supreme Court unanimously held last week. The Court’s much anticipated … Continue Reading

9th Circuit Upholds Biological Opinions For Proposed Mine

Rock Creek Alliance v. U.S. Fish and Wildlife Service, No. 10-35596 (9th Circuit Court of Appeal; November 16, 2011) By Keith Garner and Alex Merritt This month the 9th Circuit upheld the Fish and Wildlife Service’s biological opinions finding that a proposed silver and copper mine in northwestern Montana would not result in "adverse modification" … Continue Reading

U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways

By Keith Garner The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.… Continue Reading

Fourth Circuit Offers Pyrrhic Victory On Corps Jurisdiction Over Developer’s Clean Water Act Permit

Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)) By Greg Woodard The Fourth Circuit Court of Appeal case, Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)), arises out of a determination by the Army Corps of Engineers ("Corps") that it has … Continue Reading
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