Oral Argument Scheduled for Ninth Circuit Appeals in the Delta Smelt Consolidated Cases

On July 10, 2012, the United States Court of Appeals for the Ninth Circuit issued a notice of oral argument in the Consolidated Delta Smelt Cases appeals, Ninth Circuit Case Nos. 11-15871, 11-16617, 11-16621, 11-16623, 11-6624, 11-16660, 11-16662, and 11-17143.  The lead appeal is also referred to as San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.  Hearing on the appeal will occur September 10, 2012, at 9:00 a.m. in the Lloyd D. George United States Courthouse in Las Vegas, Nevada.  The court will reveal the identity of panel members not earlier than the week before the case will be heard. 

The court will hear oral argument on appeals regarding two decisions from the United States District Court for the Eastern District of California: 1) the district court’s December 14, 2010 Memorandum Decision re Cross Motions for Summary Judgment, and the related May 18, 2011 final judgment, which held that the U.S. Fish and Wildlife Service’s (“FWS”) 2008 delta smelt biological opinion (“BiOp”) and Reasonable and Prudent Alternative (“RPA”) were arbitrary, capricious, and unlawful and remanded the BiOp and RPA to FWS; and 2) the district court’s August 31, 2011 decision that enjoined the federal government from implementing the so-called “Fall X2” measure, which, absent the injunction, would have restricted California’s water supply by hundreds of thousands of acre feet.

Briefing completed in the so-called “Merits Appeal” on May 25, 2012, while briefing completed in the so-called “X2 Appeal” on April 5, 2012.  An order granting the motion to consolidate the Merits Appeal and X2 Appeal, which were separately briefed, for oral argument, was filed on May 25, 2012.  

If you have any questions regarding this announcement, please contact Daniel J. O’Hanlon, Rebecca Akroyd, or Hanspeter Walter, or the KMTG attorney with whom you normally consult.

Related Stories:

• Court Denies “Fall X2” Motions and Finds Agency Bad Faith 
• Federal District Court Enjoins Water Supply Restrictions Under Delta Smelt Biological Opinion

Property Owners Entitled to Judicial Review of EPA Compliance Orders

Last week, in a closely-watched Clean Water Act case, the United States Supreme Court unanimously upheld the rights of property owners to obtain judicial review of a compliance order issued by the Environmental Protection Agency (EPA). The Court's opinion may be found here.

The decision arises out of an order issued by the EPA under Section 309 of the Clean Water Act. The order declared that property owned by Mike and Chantell Sackett of Priest Lake, Idaho, contained wetlands adjacent to Priest Lake. The order found that the Sacketts violated the Clean Water Act by discharging fill material into wetlands, a violation of Sections 301 and 502(12) of the Act, and directed the Sacketts to restore their property as directed by the EPA and to allow EPA access to the property and documentation regarding the site. Failure to comply with the order exposed the Sacketts to civil penalties of up to $75,000 per day for as long as the violation continues.

The issue resolved by the Court involves the Sacketts' efforts to obtain judicial review of the compliance order. After the EPA denied their request for a hearing, the Sacketts sued in federal district court in Idaho, which dismissed their complaint for lack of subject matter justice. That dismissal was subsequently upheld by the Ninth Circuit Court of Appeals, which held that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process. The Ninth Circuit's opinion may be found here. Absent judicial review, the Sacketts were faced with the prospect of complying with an order at a cost greater than the value of their property. Alternatively, they could ignore the order and risk a civil action by the EPA, with civil penalties that grew with each passing day of alleged violation.

In reversing the Ninth Circuit, the Court held that EPA's compliance order satisfied the requirements for final agency action for which there is no adequate remedy, other than review under the Administrative Procedure Act, and that nothing in the Clean Water Act precluded judicial review. Concluding the opinion of the Court, Justice Scalia explained:

The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

But perhaps the most interesting commentary in the decision is found in Justice Alito's concurring opinion, where he commented:

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

The practical effect of the Court's ruling is that the Sacketts, and others who may find themselves in the "unthinkable" predicament described by Justice Alito, will have their day in court. They will certainly be permitted to challenge EPA's claim of regulatory authority over their property. It is less clear whether, at the pre-enforcement stage, they will also be able to challenge the terms and conditions of the compliance order, as Justice Ginsburg explains in her concurring opinion.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

New Complaint Charges NMFS with Allowing Overfishing of Key Forage Species

A complaint filed this week in the Northern District of California by Oceana charges the National Marine Fisheries Service (NMFS) with failing to protect key species, such as Pacific sardine and anchovy, that serve as the base of the ocean food web. The lawsuit claims NMFS fails to prevent overfishing, fails to account for the species’ ecological role when setting catch limits, and fails to adequately analyze the implications of their actions. A copy of the complaint may be found here.

“America’s fisheries laws mandate protection for the species that form the base of the ocean food web,” said Whit Sheard, Pacific Counsel and Senior Advisor for Oceana. “When the government fails in this task, the rest of the ocean ecosystem, as well as the industries that depend upon it, pay the long term costs.”

The lawsuit seeks to compel NMFS to do the following when managing forage species in the Coastal Pelagic Species Fishery Management Plan:

• Set an “optimum yield” catch level that includes leaving enough forage fish as prey for the other marine life that rely upon these important components of the food web.
• Set required limits and reference points to prevent overfishing.
• Use the best science in determining catch levels and overfishing limits.
• Consider the role of forage fish in the ecosystem and the impacts of removing large amounts of forage fish as part of the required environmental analysis.

Central to the complaint is Amendment 13 to the Coastal Pelagic Species Fishery Management Plan. Adopted by NMFS on November 14, 2011, the stated intent of Amendment 13 is to ensure that the management plan is consistent with recent NMFS guidelines, which describe fishery management approaches to meet the objectives of National Standard 1 (NS1) of section 301 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). National Standard 1 states “[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) from each fishery for the U.S. fishing industry.” The complaint alleges that Amendment 13 violates the MSA in several respects, and contends that NMFS violated the National Environmental Policy Act (NEPA) by, among other things, failing to prepare a full environmental impact statement (EIS). Oceana contends that NMFS's actions are arbitrary and capricious, in violation of the Administrative Procedures Act. Oceana seeks an order vacating and remanding Amendment 13 and requiring the preparation of an EIS.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.