Articles Posted in Government & Administrative Law

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Ground Zero filed suit challenging the Navy's expansion of a TRIDENT nuclear submarine operating center pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Ninth Circuit held that the Navy violated NEPA's public disclosure requirement by not revealing that the Safety Board withheld approval of its plan for the construction of a second Explosives Handling Wharf (EHW-2), and by withholding the now-disclosed portions of the appendices to the environmental impact statement (EIS). However, such errors were harmless. In all other respects, the Navy satisfied NEPA's requirements. Therefore, the panel affirmed summary judgment for the Navy. The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. Even with this reading, it was not clear that the district court's order comports with the First Amendment. Therefore, the court remanded for further proceedings. View "Ground Zero Center for Nonviolent Action v. US Department of the Navy" on Justia Law

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The district court entered a consent decree in 1935, known as the Globe Equity Decree, to govern the distribution of water among the Community, the Tribe, and various other landowners. In 2017, the Community, the San Carlos Irrigation and Drainage District, the United States and thousands of individual landowners entered into the Upper Valley Forbearance Agreement providing that the individual landowners could sever and transfer certain water rights. Pursuant to the Agreement, in 2008, 59 sever and transfer applications were filed by Freeport. After addressing various jurisdictional issues, the Ninth Circuit held that Freeport failed to meet its prima facie burden of demonstrating no injury to other Decree parties; the district court did not abuse its discretion by denying Freeport's motion under FRCP 15(b)(1) to amend its applications to conform to the revised maps it filed during discovery; the district court's holding that Arizona water law contained an almost identical rule prior to the 1995 amendment was foreclosed by the Arizona Supreme Court's holding in San Carlos Apache Tribe v. Superior Court ex rel. Cty of Maricopa, 972 P.2d 179, 187, 204; and the district court did not clearly err by finding that Freeport had abandoned its water rights at issue in Application 147. Accordingly, the panel affirmed the district court's September 4, 2014, order in part, dismissed in part, reversed in part, and remanded. View "United States v. Gila Valley Irrigation District" on Justia Law

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President Trump, in issuing Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry Into the United States," exceeded the scope of the authority delegated to him by Congress. After determining that plaintiffs have standing to assert their claims based on the Immigration and Nationality Act (INA), the Ninth Circuit held that plaintiffs have shown a likelihood of success on the merits of that claim and that the district court's preliminary injunction order could be affirmed in large part based on statutory grounds. The panel declined to reach the Establishment Clause claim to resolve this appeal. The panel held that, in suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority pursuant to 8 U.S.C. 1182(f). The President failed to make a sufficient finding that the entry of the excluded classes would be detrimental to the interests of the United States. The panel also held that the Order violated other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. Accordingly, the panel affirmed in large part; vacated portions of the injunction that prevent the Government from conducting internal reviews and the injunction to the extent that it runs against the President; and remanded with instructions. View "Hawaii v. Trump" on Justia Law

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Petitioners sought review of the EPA's conditional registration of the pesticide NSPW-L30SS, an antimicrobial materials preservative that uses nanosilver as its active ingredient. The Ninth Circuit held that the EPA failed to support the public-interest finding with substantial evidence under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136a(c)(7)(C). The panel explained that the EPA's finding that current users of conventional-silver pesticides will switch to NSPW and/or that NSPW will not be incorporated into new products relied on unsubstantiated assumptions. Accordingly, the panel vacated the EPA's conditional registration of NSPW. View "NRDC V. USEPA" on Justia Law

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On remand from the United States Supreme Court, the Ninth Circuit vacated the district court's order denying enforcement of an administrative subpoena issued by the EEOC to McLane that was issued as part of an investigation of a sex discrimination claim filed by a former employee. The subpoena requested "pedigree information" for employees or prospective employees who took a physical capability strength test. The Ninth Circuit held that the district court abused its discretion by denying enforcement of the subpoena because the pedigree information was relevant to the investigation. Therefore, the panel vacated the district court's judgment and remanded for further proceedings. On remand, McLane is free to renew its argument that the EEOC's request for pedigree information is unduly burdensome, and the district court should also resolve whether producing a second category of evidence—the reasons test takers were terminated—would be unduly burdensome to McLane. View "EEOC V. McLane Co." on Justia Law

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Plaintiffs filed suit alleging that the 2008 Tongass Forest Plan unlawfully damages the habitat of the indigenous Alexander Archipelago wolf, and that the Forest Service violated the National Forest Management Act (NFMA) by approving either the Big Thorne project or the 2008 Tongass Forest Plan (Forest Plan) under which Big Thorne was authorized. The Ninth Circuit held that plaintiffs' declarations were sufficient to show that actions approved under the Forest Plan would cause particularized injury to them; the panel was not aware of any authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that was neither endangered nor threatened; the Forest Service met its legal obligations when it implemented the Forest plan and its discussion of viability was not arbitrary nor capricious; and the Big Thorne Project was consistent with that plan. View "In re Big Thorne Project" on Justia Law

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Plaintiff filed suit challenging the BLM's approval of a right-of-way on federal lands in Nevada for the construction of an industrial solar project known as Silver State South. The Ninth Circuit affirmed the district court's grant of summary judgment to defendants and its conclusion that the Biological Opinion (BiOp) analyzing the effect of Silver State South on the desert tortoise fully complied with the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. 706. The panel held that the BiOp's "no jeopardy" determination was neither arbitrary nor capricious; the BiOp's determination that Silver State South was "not likely to adversely affect the critical habitat of the desert tortoise," which permitted the FWS to forego an adverse modification analysis, was neither arbitrary nor capricious; the BiOp's failure to address the FWS comments to the SEIS was not arbitrary or capricious; the BiOp's consideration of Silver State South's edge effects was not arbitrary or capricious; the BiOp does not rely on an impermissibly vague "new information" reinitiation trigger; and thus the BLM permissibly relied upon the BiOp in approving of the right-of-way for Silver State South. View "Defenders of Wildlife v. Zinke" on Justia Law

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Alliance filed suit under the National Forest Management Act (NFMA), the Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA), seeking to enjoin the Forest Service from constructing new roads in the Kootenai National Forest. The Ninth Circuit held that the 4.7 miles of roads at issue will not violate the Kootenai National Forest Plan because they will be blocked to prevent motorized access upon completion of the project; it was not arbitrary and capricious for the Forest Service to conclude that roads closed to motorized access by berms or barriers do not count toward linear miles of total roads under Standard II(B) of the Access Amendments; and because the Forest Service's interpretation of its own Forest Plan was reasonable, Alliance could not prevail on its NFMA, ESA, and NEPA claims. Accordingly, the panel affirmed the district court's judgment in favor of defendants. View "Alliance for the Wild Rockies v. Bradford" on Justia Law

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The Supreme Court's opinion in CRST Van Expedited Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016), effectively overruled Branson v Nott's holding that when a defendant wins because the action is dismissed for lack of subject matter jurisdiction he is never a prevailing party. In this case, Amphastar filed a qui tam action against Aventis under the False Claims Act (FCA), 31 U.S.C 3730, alleging that Aventis obtained an illegal monopoly over the drug enoxaparin and then knowingly overcharged the United States. The district court dismissed the suit based on lack of subject matter jurisdiction. The Ninth Circuit held that Amphastar's allegations were based on publicly disclosed information, and it lacked the direct and independent knowledge needed to be an original source. Therefore, the panel upheld the district court's judgment on the merits. However, the panel held that the district court erroneously concluded that it could not award attorneys' fees, because the FCA's fee-shifting provision contained an independent grant of subject matter jurisdiction and because a party who wins a lawsuit on a non-merits issue is a "prevailing party." The panel remanded for resolution of the attorneys' fees issue. View "Amphastar Pharmaceuticals v. Aventis Pharma" on Justia Law

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The Ninth Circuit affirmed the denial of plaintiff's application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d)(1)(A), holding that the Commissioner's litigation position was substantially justified. Plaintiff had successfully challenged the Commissioner's denial of her application for disability benefits and obtained a remand of her claim to the agency for further consideration. In this case, the district court did not abuse its discretion in determining that the Commissioner's position was substantially justified because the Commissioner's opposition to remand the claim on the merits was reasonable, even though it turned out to be unsuccessful. Finally, plaintiff's new evidence, though sufficient in the end to persuade the district court to remand the case, did not make that the only reasonable result. View "Decker v. Berryhill" on Justia Law