Friday, January 28, 2011
Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-15780, appealed from United States District Court for the Northern District of California. Northern California River Watch (River Watch) appeals the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively Defendants). River Watch contends that Defendants violated the Endangered Species Act (ESA). Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to "take" a listed plant on areas under federal jurisdiction.
The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were "areas under Federal jurisdiction." The Appeals Court consider the meaning of the term "areas under Federal jurisdiction" as used in ESA § 9. River Watch argued that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as "waters of the United States" by the Army Corps of Engineers.
The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that the Appeals Court must apply the deference principles set forth in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837 (1984), and that under Chevron the privately-owned land at issue in this case is not an "area[ ] under Federal jurisdiction."
The Appeals Court indicates that, "Although we agree that the term 'areas under Federal jurisdiction' is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (FWS), the agency with rule making authority, has interpreted the term. Nonetheless, for the reasons set forth in this opinion, we hold that 'areas under Federal jurisdiction' does not include the privately-owned land at issue here. We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants."
The Appeals Court said additionally, "We agree with the United States that the term is ambiguous, but we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically addressing this issue to which we must defer. We thus interpret 'areas under Federal jurisdiction' as not including all of the 'waters of the United States' as defined by the CWA and its regulations. Although our ruling will constitute 'binding law,' we recognize that under Brand X, we are not the 'authoritative interpreter' of 'areas under Federal jurisdiction.' See 545 U.S. at 983. The FWS might have good reason to issue regulations or guidance that more thoroughly addresses this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch. See id. After all, the objective of the ESA, to provide a program and means to conserve endangered species and their ecosystems, 16 U.S.C. § 1531(b), is surely intertwined with that of the CWA, 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'
Access the complete opinion (click here).
Posted by WIMS at 5:03 PM
Jan 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-2239. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. As explained by the Appeals Court, the appeal arises out of a determination made by the Army Corps of Engineers (the Corps) that it has jurisdiction, under the Clean Water Act (CWA), over 4.8 acres of wetlands located on Precon Development Corporation's (Precon's) property, approximately seven miles from the nearest navigable water. The Corps subsequently denied Precon's application for a CWA permit to impact the wetlands through development.
Precon appealed the determinations to the United States District Court for the Eastern District of Virginia under the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the parties crossmoved for summary judgment. The district court granted
summary judgment to the Corps on September 4, 2009, upholding both its jurisdictional determination and its permit denial.
On appeal, Precon challenged only the Corps' jurisdictional determination. The Appeals Court said, "Because we find the Corps' administrative record inadequate to support its conclusion that it had jurisdiction over Precon's wetlands, we vacate the district court's grant of summary judgment and remand to the district court with instructions to remand to the Corps for reconsideration of its jurisdiction over the wetlands in question."
The Appeals Court explained further, ". . .we reverse the district court's holding that the Corps' administrative record adequately demonstrated that a significant nexus existed here, and remand to the Corps for reconsideration of its significant nexus determination. Cf. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 57 (1983) (remanding for further agency consideration when the agency's view of the facts was accepted but the Court 'appreciate[d] the limitations of th[e] record in supporting the agency's decision'); Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir. 1986) (remanding for further consideration where it was 'impossible to conclude that there [was] substantial evidence to support the Secretary's determination'). In doing so, we do not intend to place an unreasonable burden on the Corps. We ask only that in cases like this one, involving wetlands running alongside a ditch miles from any navigable water, the Corps pay particular attention to documenting why such wetlands significantly, rather than insubstantially, affect the integrity of navigable waters. Such documentation need not take the form of any particular measurements, but should include some comparative information that allows us to meaningfully review the significance of the wetlands' impacts on downstream water quality."
Access the complete opinion (click here).
Posted by WIMS at 5:02 PM