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Keeping You Up-to-Date on the California Environmental Quality Act

Posts Tagged ‘Turtle Island’


Ninth Circuit Reiterates that Laches is Strongly Disfavored in Environmental Cases

Tuesday, March 6th, 2012

In Save the Peaks Coalition v. United States Forest Service (9th Cir. 2012) 2012 U.S. App. LEXIS 2563, the Ninth Circuit Court of Appeals determined that, although Save the Peaks Coalition (“SPC”) abused the judicial process by holding back claims that should have been asserted in an earlier litigation, laches did not bar SPC from bringing a challenge under the National Environmental Policy Act (“NEPA”) because the United States Forest Service (“USFS”) failed to demonstrate that it suffered prejudice. However, the Court found that the USFS complied with NEPA, thus upholding the lower court’s decision to grant USFS’s motion for summary judgment.

In a prior lawsuit, a different petitioner – utilizing the same attorney as SPC – brought a similar complaint challenging USFS’s approval of the use of man-made snow from Class A+ reclaimed water at a ski area in the San Francisco Peaks. In light of the prior case, the District Court found that laches barred SPC’s action. SPC timely appealed, first claiming that the lower court erred in finding that laches barred its claims, and second that the USFS violated NEPA because: 1) USFS’s final environmental impact statement (FEIS) did not thoroughly discuss the significant environmental consequences of making snow from reclaimed water; 2) USFS failed to ensure scientific integrity of its analysis; and, 3) USFS did not disseminate quality information.

Laches apply when there is clear evidence that (1) the plaintiff lacked diligence in pursuing its claims, and (2) the defendant experienced prejudice as a result. To determine whether a plaintiff lacks diligence, a court must consider several factors, such as whether the plaintiff communicated its position to the defendant, the nature of the defendant’s response, and the length of delay. Here, the Court found that SPC lacked diligence. However, the Court held that USFS failed to show it experienced prejudice as a result of SPC’s delay. Specifically, USFS had not started construction before the suit was filed, and no irreversible harm was done. Because USFS did not show prejudice, the Court ruled that the lower court erred in barring SPC’s claims by laches. In reaching its holding, the Court explained that courts strongly discourage the use of laches as a defense in environmental cases. Environmental damages affect more than just the plaintiff, and use of laches to defeat a challenge typically would conflict with the purpose behind Congressional environmental policies.

Turning to SPC’s NEPA claims, the Court used a rule of reason standard to determine whether USFS took a “hard look” at the environmental consequences of making snow with reclaimed water, as required by NEPA. In rejecting SPC’s arguments, the Court found that the USFS’s FEIS discussed the significant probable environmental impacts and was replete with careful considerations of the risks its decision posed. The lengthy discussion in the FEIS, along with USFS’s responses to comments, compelled the Court to rule that the USFS did in fact take the requisite “hard look” at the environmental impacts and human risks of making snow with reclaimed water. The Court also rejected SPC’s argument that USFS failed to ensure scientific integrity pursuant to NEPA by considering the conclusions of the Arizona Department of Environmental Quality (ADEQ). The Court dispelled this argument by showing that the USFS’s careful consideration of the risks made little reference to the ADEQ analysis. SPC’s last argument concerning the dissemination of quality information was abandoned due to failure to respond to USFS’s summary judgment motion on the issue.

Key Points: 

As demonstrated in Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, where privity between parties can be established res judicata may bar the subsequent litigation making it unnecessary to establish laches.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.