Articles Posted in Government & Administrative Law

by
Jose Maria Garcia-Martinez was a lawful permanent resident at the time of his convictions, and the BIA found him removable, under 8 U.S.C. 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude (CIMT), not arising out of a single scheme of criminal misconduct. He was granted review of a Board of Immigration Appeals (BIA) decision, arguing the BIA erred in concluding that Garcia’s Oregon theft convictions were CIMTs. The Ninth Circuit noted that the Oregon theft offenses for which Garcia was convicted did not require a permanent taking of property. Therefore, the panel concluded that, at the time Garcia committed the offenses, they were not crimes involving moral turpitude because for many decades the BIA had required a permanent intent to deprive in order for a theft offense to be a crime involving moral turpitude. "In short, Garcia’s thefts were not CIMTs, and his removal order must be set aside. ... the BIA has changed or updated or revised its rule for the future. Nevertheless, that rule should not be applied to Garcia, who pled and was convicted while the old rule was extant." View "Garcia-Martinez v. Sessions" on Justia Law

by
The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Army Corps of Engineers and intervenor Newhall Land and Farming in an action challenging the Corps’ issuance of a permit, pursuant to Section 404 of the Clean Water Act, to Newhall Land, authorizing the discharge of materials into the Santa Clara River as part of the Newhall Ranch project in Los Angeles County near Santa Clarita, California. The Court rejected challenges under the Clean Water Act to the Corp’s permit issuance. The Court concluded that the Corps complied with its obligations under the Clean Water Act because the Corps properly considered practicability as required under the Section 404(b) Guidelines. Furthermore, the Court concluded concluded that the Corps complied with the Endangered Species Act (ESA) because its determination that Southern California steelhead would not be affected by the Project, and its corresponding decision not to consult with the National Marine Fisheries Service, were not arbitrary and capricious. For similar reasons, the panel concluded that the Corps reasonably assessed the Project’s potential impacts to the steelhead and provided sufficient discussion to satisfy its National Environmental Policy Act (NEPA) obligations. View "Friends of the Santa Clara River v. US Army Corps of Engineers" on Justia Law

by
The question before the Ninth Circuit was "simple:" could an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the Court determined the answer was clearly "no." Prior to the Court's decision here, the law was unclear whether an employer could consider prior salary, either alone or in combination with other factors, when setting its employees’ salaries. The Ninth Circuit took this case en banc in order to clarify the law, and held prior salary alone or in combination with other factors could not justify a wage differential. "To hold otherwise - to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum - would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands." The Fresno County Office of Education (“the County”) did not dispute that it paid Aileen Rizo (“Rizo”) less than comparable male employees for the same work. However, it argued this wage differential was lawful under the Equal Pay Act. The County contended that the wage differential was based on a fourth, "catchall exception: a 'factor other than sex.'” The Ninth Circuit surmised this would allow the County to defend a sex-based salary differential on the basis of the very sex-based salary differentials the Equal Pay Act was designed to cure. Because the Court concluded that prior salary did not constitute a “factor other than sex,” the County failed as a matter of law to set forth an affirmative defense. The Court affirmed the district court’s denial of summary judgment to the County and remanded for further proceedings. View "Rizo v. Yovino" on Justia Law

by
Three federal agencies and intervenor-defendants challenged injunctions issued by the district court to protect salmon and steelhead species listed under the Endangered Species Act (ESA), 16 U.S.C. 1531-1544. The Ninth Circuit held that Federal Rule of Civil Procedure 60(b) did not bar plaintiffs' January 2017 injunction motions; the district court did not abuse its discretion in granting the spring spill injunction; the district court did not abuse its discretion in granting the PIT tag monitoring injunction; and the district court's National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, disclosure was not properly before the panel. Therefore, the district court did not abuse its discretion in granting injunctive relief to plaintiffs. The panel dismissed intervenor-defendants' appeal of the district court's NEPA disclosure order. View "National Wildlife Federation v. NMFS" on Justia Law

by
The Ninth Circuit affirmed the district court's grant of the Forest Service's motion to dissolve an injunction enjoining the Lonesome Wood 2 Project. The Project was designed to reduce the threat of wildfire in a populated area of the Gallatin National Forest in Montana. The panel declined to overrule the Forest Service's determination that a thesis outlining important predictors for overall lynx reproductive success did not require the Forest Service to reevaluate its approval of the project. The panel rejected the argument that the Forest Service failed to comply with the obligation to ensure species viability and that the Forest Service failed to comply with its Gallatin Forest Plan obligation to monitor population trends for two management indicator species. Finally, the panel held that the Forest Service took a "hard look" at the project and did not act arbitrarily or capriciously. View "Native Ecosystems Council v. Marten" on Justia Law

by
For generalized records, such as training manuals and guidelines, the government's burden under Exemption 7 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(7), of demonstrating that withheld materials were "complied for law enforcement purposes" can be satisfied without linking the documents to the enforcement of a particular statute. The government need only show a "rational nexus" between enforcement of federal law and a withheld document to invoke Exemption 7. In this case, the Ninth Circuit vacated the district court's grant of summary judgment for plaintiffs in an action seeking information from the FBI under FOIA. The panel remanded for further proceedings. View "ACLU of Northern California v. FBI" on Justia Law

by
The DOJ appealed the district court's order requiring the agency to produce two documents contained within the USABook, an internal DOJ resource manual for federal prosecutors, in response to a Freedom of Information Act (FOIA), 5 U.S.C. 552, request. The DOJ explained that the documents, which relate to the DOJ's use of electronic surveillance and tracking devices in criminal investigations, were exempt from production. The Ninth Circuit held that only the the limited portions of the USABook documents that present original legal analyses, not purely descriptive and not already incorporated in public documents, to guide federal prosecutors in litigation, were properly withheld as attorney work product under Exemption 5; the withheld documents in this case did not provide details or means of deploying law enforcement techniques that would bring them under FOIA Exemption 7(E); and thus the panel remanded to the district court to determine which portions of the documents could be segregated under Exemption 5 and which must be disclosed. View "ACLU v. USDOJ" on Justia Law

by
The Ninth Circuit granted CPUC's petition for review of FERC's determination that PG&E was eligible for an incentive adder for remaining a member of the California Independent System Operator Corporation (Cal-ISO) when state law prevented PG&E's departure without authorization. The panel held that FERC's determination that PG&E was entitled to incentive adders for remaining in the Cal-ISO was arbitrary and capricious, because FERC did not reasonably interpret Order 679 as justifying summary grants of adders for remaining in a transmission organization. The panel explained that, because FERC's interpretation was unreasonable, FERC's grants of adders to PG&E were an unexplained departure from longstanding policy. Furthermore, FERC created a generic adder in violation of the order. View "CPUC V. FERC" on Justia Law

by
The Ninth Circuit affirmed the district court's decision rejecting challenges to the Forest Service's determination that EFR had a valid existing right to operate a uranium mine on land within a withdrawal area of public lands around Grand Canyon National Park that the Secretary of the Interior withdrew from new mining claims. The panel held that the Mineral Report was a major federal action under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and that the district court correctly held that Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013), not Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006), governed this case; that action was complete when the plan was approved; resumed operation of Canyon Mine did not require any additional government action; and thus the EIS prepared in 1988 satisfied NEPA. The panel also held that the Mineral Report approved an "undertaking" under the National Historic Preservation Act of 1966 (NHPA), 54 U.S.C. 306108; the Mineral Report did not permit, license, or approve resumed operations at Canyon Mine; and the original approval was the only "undertaking" requiring consultation under the NHPA. Finally, the environmental groups did not have prudential standing to challenge the Mineral Report. View "Havasupai Tribe v. Provencio" on Justia Law

by
The unconstitutional legislative veto embedded in section 204(c)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1714, is severable from the large-tract withdrawal authority delegated to the Secretary in that same subsection. Invalidating the legislative veto provision does not affect the Secretary's withdrawal authority. The Ninth Circuit affirmed the district court's decision rejecting challenges to the decision of the Secretary to withdraw from new uranium mining claims, up to twenty years, over one million acres of land near Grand Canyon National Park. In this case, the panel held that the environmental impact statement (EIS) did take existing legal regimes into account but reasonably concluded that they were inadequate to meet the purposes of the withdrawal; the Establishment Clause challenge failed under Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); and the panel rejected challenges under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the National Forest Management Act, 16 U.S.C. 1604(e). View "National Mining Ass'n v. Zinke" on Justia Law