Ag Law & Taxation Case Annotations

Red 11, LLC v. Conservation Commission, No. AC 29092, 117 Conn. App. 630 (2009)(sufficient evidence present to support defendant's determination that plaintiff violated town's wetland regulations and that exemption for farming activities did not apply).

United States v. Milner, et al., No. 05-35802, 2009 U.S. App. LEXIS 22253 (9th Cir. Oct. 9, 2009)(case involves question of whether group of waterfront homeowners are liable for trespass and violation of Rivers and Harbors Appropriation Act of 1899 and the Clean Water Act because the ambulatory tideland property boundary intersects shore defense structures that homeowners erected; trial court ruled against homeowners and ordered removal of certain structures and payment of civil fine; trial court judgment affirmed in part and reversed in part).

Hutchens, et al. v. United States, No. 09-207L (Fed. Cl. Oct. 6, 2009)(plaintiff's claim that EPA illegally took private land (mining site near Redding, CA) by cleaning up Superfund site in 1980s dismissed; plaintiff claimed that clean-up efforts diminished value of plaintiff's property; claim filed late and court without subject matter jurisdiction; in any event plaintiff could not claim Fifth Amendment taking unless EPA action was legal in the first place - plaintiff's allegation that EPA's action was not legal undermined Fifth Amendment claim).

California Building Industry Assoc., et al. v. San Joaquin Valley Air Pollution Control District, No. F055448 (Cal. Ct. App. Oct. 6, 2009)(defendant has authority to fine indirect sources of pollution under defendant's "indirect source review" rules; fact that housing development does not emit pollutants is what causes the development to be an indirect source of pollution).

Native Village of Kivalina, et al. v. Exxon Mobil Corporation, et al., No. C 08-1138 SBA (N.D. Cal. Sept. 30, 2009)(plaintiffs' common law nuisance claim against defendant energy and utility companies that they have allegedely contributed to "global warming" which has allegedly diminished the Arctic sea ice that protects the Kivalina coast from winter storms dismissed for lack of standing and barred under the political question doctrine).

State of Connecticut, et al. v. American Electric Power Co., Inc., et al., No. 05-5104-cv, 2009 U.S. App. LEXIS 20873 (2nd Cir. Sept. 21, 2009)(in reversal of trial court, court holds that plaintiff states may bring common law public nuisance claim against electric utilities in attempt to force reductions in carbon dioxide emissions to combat supposed "global warming"; emissions need not be "poisonous" or "noxious" in nature or capable of producing immediate harm to be challenged in court; issue not merely a political question).

Thomas v. Johnson, No. 08-2152 (8th Cir. Sept. 10, 2009)(affirmance of district court decision dismissing plaintiff's complaint under Administrative Procedures Act claiming that EPA violated the Clean Water Act by approving Iowa's 2004 list of waters that included waters that do not meet certain water quality standards).

State v. United States, No. 08-2582, 2009 U.S. App. LEXIS 20076 (7th Cir. Sept. 9, 2009)(plaintiff lacks standing to seek review of EPA final ruling which imposed stricter air quality controls on emitting sources in and around tribal lands).

United States v. Apex Oil Co., Inc., No. 08-3433, 2009 U.S. App. LEXIS 19087 (7th Cir. Aug. 25, 2009)(defendant responsible for clean-up of former oil refinery site under Resource Conservation and Recovery Act because oil refinery was owned by defendant's predecessor who had created the contamination; EPA's claim for injunction not discharged upon defendant's reorganization bankruptcy filing).

West Virginia Highlands Conservancy, Inc., et al. v. Huffman, No. 2:07-0410, 2009 U.S. Dist. LEXIS 75033 (S.D. W.V. Aug. 24, 2009)(Clean Water Act citizen suit; plaintiff's motion for summary judgment and injunctive relief granted; defendant, Secretary of State EPA, found to be discharging pollutants into navigable waters of U.S. without NPDES permit and suit not barred by Eleventh Amendment).

Pollack, et al. v. United States Department of Justice, et al., No. 08-3857, 2009 U.S. App. LEXIS 17998 (7th Cir. Aug. 13, 2009)(plaintiffs' claims that defendant's operation of gun range which discharged bullets into Lake Michigan violated various environmental laws dismissed for lack of jurisdiction due to plaintiffs' lack of constitutional standing; plaintiffs' interests too generalized to give rise to standing).

Gienger, et al. v. Department of State Lands, 230 Ore. App. 178, 214 P.3d 75 (2009)(plaintiff farmer who removed more than 50 cubic yards of dirt and canary grass from creek without permit violated state law because creek was a water of the state covered under the permit requirement; exemption for normal farming activities on converted wetland did not extend to work the plaintiff conducted on the banks of the creek).

Cordiano, et al. v. Metacon Gun Club, Inc., No. 07-07905-cv, 2009 U.S. App. LEXIS 16980 (2nd Cir. Jul. 31, 2009)(EPA interpretation of applicable RCRA permit regulations upheld; RCRA inapplicable to regular, intended use of lead shot on shooting range and plaintiff failed to offer sufficient evidence to create material issue of fact as to whether defendant discharged lead shot into "navigable water" from a "point source"; trial court's award of summary judgment for defendant affirmed).

Jennings Water, Inc. v. Office of Environmental Adjudication, 909 N.E.2d 1020 (Ind. Ct. App. 2009)(issuance of non-discharge NPDES permit for CAFO upheld; defendant considered and concluded that CAFO was not in a sensitive area, plaintiff failed to prove that issuance of permit did not comply with all regulatory and statutory requirements, and defendant cannot overturn administrative agency decision to issue permit based on speculation of future non-compliance with permit requirements).

United States v. Acquest Transit, LLC, No. 09-CV-055S, 2009 U.S. Dist. LEXIS 60337 (W.D. N.Y. Jul. 15, 2009)(government entitled to injunction barring defendant from placing additional fill or performing any additional earthmoving work on subject property; plaintiff discharged dredged spoil, rock, sand and dirt (which are within the CWA's definition of "pollutant"), into regulable wetlands under either standard espoused in Rapanos, without a permit; activity not within exemption for "normal farming activities" because farming activity not ongoing and modifications to hydrological regime necessary to resume farming practices and some areas had been converted to other uses).

United States v. Bailey, No. 08-1908, 2009 U.S. App. LEXIS 15121 (Jul. 9, 2009), aff'g, 516 F. Supp. 2d 998 (D. Minn. 2007)(government had jurisdiction over subject wetlands under Justice Kennedy's "substantial nexus" test in Rapanos v. United States, 547 U.S. 715 (2006) because they were adjacent to a lake; trial court did not err in determining that U.S. had jurisdiction to hear government's complaint, and did not err in admitting Army Corps of Engineer's expert evidence establishing existence of wetlands under Daubert test; trial court's order requiring defendant to restore wetlands in issue not arbitrary or capricious and did not violate defendant's equal protection rights under 14th amendment).

Catawba County, et al. v. Environmental Protection Agency, No. 05-1064, 2009 U.S. App. LEXIS 14948 (D.C. Cir. Jul. 7, 2009)(defendant's promulgation of "nonattainment area" designations for annual national ambient air quality standards applicable to fine particulate matter upheld; defendant complied with the statute).

Friends of the Everglades, et al. v. South Florida Water Management District, et al., No. 07-13829 (11th Cir. Jun. 4, 2009)(NPDES permit not needed for transfer from one regulable water source of already polluted waters to another regulable water source without an intervening industrial, municipal or commercial use; 2008 EPA regulation upheld as reasonable interpretation of statute which requires "addition" of pollutant before permit required).

Abarca, et al. v. Franklin County Water District, No. 1:07-CV-0388 OWW DLB, 2009 U.S. Dist. LEXIS 42609 (E.D. Cal. May 18, 2009)(court denied defendant's motion to strike plaintiff's request for stigma damages related to defendant's operation of sewage treatment plants that discharged pollutants into water which impacted plaintiff's irrigation activities and contaminated ground water and soil).

Burlington Northern and Santa Fe Railway Company, et al. v. United States, et al., No. 07-1601, 2009 U.S. LEXIS 3306 (U.S. Sup. Ct. May 4, 2009)(arranger liability under CERCLA narrowed such that joint and several liability not applicable when reasonable basis for apportionment of liability exists).

White Tanks Concerned Citizens, Inc. v. Strock, et al., No. 07-15659, 2009 U.S. App. LEXIS 9027 (9th Cir. Apr. 29, 2009)(plaintiff's challenge to adequacy of study behind defendant's decision to grant dredge and fill permit under CWA so that developer could fill ephemeral washes upheld; washes were dispersed throughout project area in manner such that no large-scale development could take place without filling the washes; thus COE's analysis had to include effects of entire development).

Community Association for Restoration of the Environment v. Washington Department of Ecology, No. 36974-5-II, 2009 Wash. App. LEXIS 903 (Wash. Ct. App. Apr. 21, 2009)(defendant not required to include groundwater monitoring as part of requirements to obtain operational permit for dairy and other livestock operations, and permit does not violate CWA's requirement for public participation in the continuing protection of groundwater).

Blue Skies Alliance, et al. v. Texas Commission of Environmental Quality, No. 07-07-0306-CV, 2009 Tex. App. LEXIS 2534 (Tex. Ct. App. Apr. 14, 2009)(both federal and state interpretation of the "cause or contribute to" standard tolerates insignificant level of contribution to a downwind national ambient air quality standards ozone exeedance; application for air quality permit necessary for building of pulverized coal power plant proper).

Entergy Corp. v. Riverkeeper, Inc., No. 07-588, 2009 U.S. LEXIS 2498 (U.S. Sup. Ct. Apr. 1, 2009)(Clean Water Act is silent concerning whether EPA can weigh costs against benefits and choose a lower-cost option; accordingly, federal environmental regulators may let more than 500 electric power plants use less-costly devices to take water for cooling out of the nation's waterway, even if that does less than could be done to protect fish and tiny forms of aquatic life; Second Circuit opinion is reversed and case remanded).

Bedeker v. United States, No. 07 C 6014,08 C 1711, 2009 U.S. Dist. LEXIS 20571 (N.D. Ill. Mar. 16, 2009)(NRCS determination of plaintiff's wetland violation upheld; no good-faith reliance and activity not eligible for minimal effect exemption; no due process violation).

Trout Unlimited, et al. v. Lohn, No. 07-35623, 2009 U.S. App. LEXIS 5353 (9th Cir. Mar. 16, 2009)(hatchery-raised steelhead and salmon should be lumped together with wild populations for endangered species listing purposes).

Summers, et al. v. Earth Island Institute, et al., 129 S. Ct. 1142 (2009)(plaintiff environmental groups lack standing to challenge "salvage timber" sales by USFS; 1992 law required USFS to subject forest land projects to notice and comment, but USFS decided to not submit projects with minimal environmental impact to notice and comment procedures; plaintiffs sued and Ninth Circuit allowed case to proceed on basis that plaintiffs had right to provide input on environmental impact of logging and timber sales on 238 acres of burned forest land; Supreme Court reversed, noting the plaintiffs could not show the logging or sales would interfere with their right to enjoy the forest; court also noted that plaintiff failed to show specific intent to comment if opportunity to do so was restored, and failed to show a specific plan of any of their 700,000 members to visit a specific site; without concrete injury, no right to sue present and no right to sue simply because some procedural right taken away).

American Farm Bureau Federation, et al. v. Environmental Protection Agency, et al., No. 06-1410, 2009 U.S. App. LEXIS 3562 (D.C. Cir. Feb. 24, 2009)(EPA's regulations involving coarse and fine particulate matter and distinguishing rural and urban areas upheld as reasonable; burden on parties challenging regulations to prove that regulated operations are not harming the environment or the public).

Ohio Environmental Coalition, et al. v. West Virginia Coal Association, et al., No. 07-1355, 2009 U.S. App. LEXIS 2904 (4th Cir. Feb. 13, 2009)(U.S. Army Corps. of Engineers has authority to issue valley fill permits under the Clean Water Act for mountaintop coal mining activities that result in discharges into downstream sediment treatment ponds without undergoing more-extensive environmental reviews; reversal of district court opinion).

In re Dudley, et al. v. Town Board of Prattsburgh, No. 1708 OP 08-01586, 2009 N.Y. App. Div. LEXIS 867 (N.Y. Sup. Ct. Feb. 6, 2009)(defendant's condemnation of private property for easement to lay underground electricity lines for wind farm project upheld; condemnation satisfied "public use" requirement of Constitution because wind farm would create jobs, provide infrastructure and possibly stimulate new private sector economic development).

Stewart, et al. v. Kempthorne, No. 08-4020, 2009 U.S. App. LEXIS 1955 (10th Cir. Feb. 2, 2009)(neither ownership of livestock nor intent to graze necessary to qualify for grazing permit under Taylor Grazing Act; BLM has no duty to determine that property was to be used for grazing before issuing a permit because BLM’s duty only arises after issuance of permit).

The National Cotton Council of America, et al. v. United States Environmental Protection Agency, No. 06-4630, 2009 U.S. App. LEXIS 45 (6th Cir. Jan. 7, 2009)(EPA’s final rule providing that pesticides applied in accordance with FIFRA are exempt from the Clean Water Act’s permitting requirements held to be unreasonable interpretations of CWA because EPA exceeded its authority under CWA when it issued rule that excluded pesticides from definition of “pollutant”; plain language of “chemical waste” and “biological materials” was unambiguous as to pesticides; under CWA pesticide residue or excess pesticide was a pollutant discharged from a point source because the pollutant was introduced into a water from the outside world by the pesticide applicator from a point source).

McGuire v. United States, No. 06-15812, 2008 U.S. App. LEXIS 26388 (9th Cir. Dec. 24, 2008)(plaintiff (farmer) filed Chapter 11 after U.S. Bureau of Indian Affairs (BIA) removed bridge that provided access to farmland that plaintiff leased from Indian Tribe; bankruptcy court found that regulatory taking had occurred and recommended award of over $1 million in damages; district court reversed on basis that plaintiff's claim not ripe for review; appellate court determined that plaintiff's claim was ripe, but that neither bankruptcy court nor district court could hear plaintiff's claim based on sovereign immunity - plaintiff's claim fell within jurisdiction of Tucker Act and Tucker Act's sovereign immunity waiver limited to suits filed in U.S. Court of Federal Claims; even though taking claim related to debtor's bankruptcy case, Tucker Act did not clearly express Government's consent to be sued in district court).

Sierra Club v. Environmental Protection Agency, et al., No. 02-1135, 2008 U.S. App. LEXIS 25578 (D.C. Cir. Dec. 19, 2008)(refineries, ethanol distilleries and other industrial sites are not be exempt from normal emissions standards during startups, shutdowns and malfunctions).

Oregon Natural Desert Association, et al. v. United States Forrest Service, No. 08-35205 (9th Cir. Dec. 11, 2008)(Cattle not point-source pollutants under CWA and such holding not inconsistent with SD Warren; non-point sources not included in definition of "discharge"; Oregon Natural Desert Association v. Dombeck, 151 F.3d 945 (9th Cir. 1998) controlling law on the issue).

Barnum Timber Co. v. United States Environmental Protection Agency, No. C 08-01988 WHA, 2008 U.S. Dist. LEXIS 74858 (N.D. Cal. Sept. 29, 2008) (plaintiff claims that defendant's decision to retain specified creek on state list of waters deemed environmentally impaired under the Clean Water Act was arbitrary and capricious; defendant's motion to dismiss granted).

Altamaha Riverkeeper, et al. v. Youmans, et al., No. 606CV027, 2008 U.S. Dist. LEXIS 74934 (S.D. Ga. Sept. 29, 2008)(plaintiffs claimed that defendants violated Clean Water Act by discharging sediment into navigable waters of U.S. without permit; settlement reached which, in part, required defendants to place 15 acres of land under permanent conservation easement, which plaintiffs claim defendants failed to do in accordance with settlement agreement; court upholds settlement agreement and orders imposition of permanent easement).

Northwest Coalition for Alternatives to Pesticides v. United States Environmental Protection Agency, No. 05-75255, 2008 U.S. App LEXIS 20065 (9th Cir. Sept. 19, 2008)(case involves challenge to EPA pesticide tolerance levels, and petition for review is granted in part and reversed in part and case remanded to EPA where: (1) Food Quality Protection Act requires EPA to set pesticide tolerance levels at ten times (10x) reduction absent reliable data that a higher tolerance will be safe for infants and children; (2) EPA data was reliable for avoiding the 10x reduction on four of seven challenged pesticide tolerances, but (3) EPA failed to explain its data for avoiding the 10x reduction for tolerances of three pesticides).

Sierra Club, et al. v. Johnson, No. 07-11537, 2008 U. S. App. LEXIS 18770 (11th Cir. Sept. 2, 2008)(EPA not required to challenge permits issued to coal-fired power plants, even if EPA previously accused plants of violating Clean Air Act (CAA); violation notice and civil complaint merely initial steps in an enforcement action and do not, by themselves, invevitably trigger EPA's duty to object under the CAA).

Humboldt County v. McKee, et al., No. A117325, 2008 Cal. App. LEXIS 1248 (Cal. Ct. App. Aug. 15, 2008)(in 1977, plaintiff entered into Williamson Act (law establishing conservation contracts with landowners limiting land use to use for agricultural purposes in return for lower property tax valuation) contract with landowner establishing minimum parcel size of 160 acres for subsequent divisions of the property which was consistent with agriculture preservation Guidelines then in effect; in the following year, plaintiff revised guidelines and increased minimum parcel divisions to 600 acres; defendant purchased subject property and then divided and sold much of the land with some divisions being less than 600 acres (but all were more than 160 acres; plaintiff’s Guidelines upheld on appeal – plaintiff and prior owner voluntarily renewed their contract numerous times; new contracts incorporated revised Guidelines and revised Guidelines can be applied constitutionally to a Williamson Act contract executed in 1977).

Clark v. United States Department of Agriculture, No. 07-3127 (8th Cir. Aug. 12, 2008)(defendant’s regulatory interpretation of “converted wetland” as property made more “suitable” for farming upheld rather than plaintiff’s attempt to strictly construe statute to mean whether subject property could possibly grow crops; defendant’s regulation placing burden on plaintiff to request and prove eligibility for “minimal effect” exemption” also upheld).

United States v. Park, No.0635886, 2008 U.S. App. LEXIS 17075 (9 th Cir. Aug. 11, 2008)(plaintiff owns and operates dog kennel on property subject to a scenic easement granted to the United States, which prohibits commercial activity but permits livestock farming; legal question involves whether dogs are "livestock"; term “livestock” ambiguous and much broader than traditional categories of horses, cattle, sheep and pigs such that summary judgment precluded).

Coon v. Willet Dairy, LP, et al., No. 07-3454-cv(L), 2008 U.S. App. LEXIS 16108 (2d Cir. Jul. 30, 2008)(plaintiff claims that defendant dairy emitted hazardous pollutants in violation of the CWA; court holds that plaintiff waived claim as to any CWA violations before July 1999, that CWA permit shield provision prohibited the action as to any claims between July 1999 and December 2006, and that plaintiff’s RCRA claims are prohibited under RCRA’s non-duplication provision; court holds that defendant did not need CWA permit to construct stock pond on land already used in farming under 33 U.S.C. §1344(f)(2)).

Citizens Against Ruining the Environment, et al. v. Environmental Protection Agency, et al., No. 07-3197 (7th Cir. Jul. 28, 2008)(EPA acted properly in authorizing state-level operating permits for six coal-fired power plants in Illinois; by law, EPA only has 45 days to object to permits and Congress did not intend EPA to fully investigate and resolve all allegations in the permitting context; power plants had not applied for new source review permit, so had not violated permit requirements; state attorney general lacked standing to join suit because injuries from supposed “global warming” unclear).

Northwest Environmental Advocates, et al. v. United States Environmental Protection Agency, No. 03-74795, 2008 U.S. App. LEXIS 15576 (9th Cir. Jul. 23, 2008)(EPA exceeded its authority under the Clean Water Act in exempting marine vessel discharges from the CWA permit requirements).

Defenders of Wildlife, et al. v. Hall, et al., No. CV 08-56-M-DWM, 2008 U.S. Dist. LEXIS 55071 (D. Mont. Jul. 18, 2008)(plaintiffs’ motion for preliminary injunction granted which results in the reinstatement of Endangered Species Act protections for the northern Rocky Mountain gray wolf during the pendency of the litigation).

Fernandez, et al. v. California Department of Pesticide Regulation, No. A114258, 2008 Cal. App. LEXIS 1059 (Cal. Ct. App. Jul. 15, 2008)(plaintiff challenges defendant’s regulations concerning the use of methyl bromide; court affirmed trial court’s writ of mandamus directing defendant to comply with state law in determining potential health risks before using methyl bromide).

North Carolina v. Environmental Protection Agency, No. 05-1244, 2008 U.S. App. LEXIS 14733 (D.C. Cir. Jul. 11, 2008)(EPA exceeded its authority to create Clean Air Act Interstate Rule, which included a cap and trade program to purportedly to reduce emissions of sulfur dioxide and nitrogen oxide from power plants in 28 states and D.C.; EPA cannot base emission caps on number of coal, oil and gas-fired electric power plants a state has compared to other states; court stated that EPA’s plan “beyond salvageable”).

Coos County v. Kempthorne, No. 06-35634, 2008 U.S. App. LEXIS 13475 (9th Cir. Jun. 26, 2008)(U.S. Fish and Wildlife Service does not have an enforceable duty promptly to withdraw a threatened species from Endangered Species Act protection after a five-year agency review required by ESA determined that the species does not fit into one of several types of population categories protected under the ESA).

Department of Ecology v. Douma, et al., No. 35864-6-II, 2008 Wash. App. LEXIS 1484 (Wash. Ct. App. Jun. 24, 2008)(water pollution case against dairy operation; plaintiff not entitled to bring enforcement action under state law against dairy without first establishing that dairy was significant contributor of pollution; mere fact that dairy was a Concentrated Dairy Animal Feeding Operation insufficient, by itself, to support finding that dairy was significant contributor of pollution; however, other factors supported finding that dairy was significant contributor of pollution; penalty upheld as reasonable and plaintiff’s decision as to penalty amount not arbitrary and capricious).

Aggio, et al. v. Estate of Aggio, No. C 04-4357 PJH, 2008 U.S. Dist. LEXIS 49368 (N.D. Cal. Jun. 19, 2008)(decedent’s heirs entered into voluntary cleanup agreement with State to clean up site contaminated by lead bullets and other contaminants to be deposited in soil at firing range on the property, and sued estate to recover costs; decedent’s personal liability insurance policy motioned for summary judgment on basis that it had no duty to indemnify estate because any judgment against estate not indemnifiable because not a product of a “suit” nor an “award of damages”; motion granted – plaintiffs voluntarily assumed response costs and contamination tied to business pursuits of the insured which is excluded under the policy).

Adams, et al. v. United States, No. 03-0049-E-BLW, 2008 U.S. Dist. LEXIS 47506 (D. Idaho Jun. 6, 2008)(plaintiffs’ claim that Dupont defrauded EPA by convincing EPA to drop language from Oust warning label prohibiting its use in arid areas near cropland which resulted in Bureau of Land Management to buy and apply Oust in manner that damaged plaintiff’s crops; complaint defective because it doesn’t asset fraud against the plaintiffs; but, plaintiffs motion to amend complaint granted to add allegations of fraud and misrepresentation by Dupont to plaintiffs).

Estate of Hage v. United States, No. 91-1470L, 2008 U.S. Claims LEXIS 156 (Fed. Cl. Jun. 6, 2008)(defendant's impoundment of plaintiff's cattle and cancellation of federal grazing permit not a taking; but, plaintiff had vested right in surface waters flowing from federal land that could have been put to beneficial agricultural use if not for defendant's interference (construction of fences and disallowance of plaintiff to clear obstructions upstream in 1866 Act irrigation ditches); plaintiff entitled to $4,220,431.20 plus interest from date of taking (beginning in 1983) plus attorney's fees and costs).

In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, No. S138974, 2008 Cal. LEXIS 6737 (Cal. Sup. Ct. Jun. 5, 2008)(joint federal/state effort to address conflicts and provide solutions to competing interests for water in California’s largest water distributions systems complied with state law; reversal of state appellate court).

Natural Resources Defense Council v. United States, No. 06-73217, 2008 U.S. App. LEXIS 11080 (9th Cir. May 23, 2008)(case involves challenge to EPA's CWA storm water discharge rule which exempts from the CWA's permitting requirements discharges of sediment from oil and gas construction activities; petition for review granted, rule vacated and matter remanded to EPA for further proceedings).

Ke Ao, et al. v. Board of Agriculture, No. 27855, 2008 Haw. App. LEXIS 261 (Haw. Ct. App. May 21, 2008)(defendant violated state environmental policy by approving marine biotechnology firm’s request to import GMO algae to facility on state land; no adequate environmental assessment provided, and environmental studies provided were outdated and did not discuss impact of large-scale algae production).

Sierra Club, et al. v. Flowers, No. 07-13297, 2008 U.S. App. LEXIS 10059 (11th Cir. May 9, 2008)(plaintiff sued U.S. Army Corps of Engineers (COE) after COE granted CWA permit to plaintiff to extract mining materials from wetlands located between Florida Everglades and Miami; trial court granted permit, but decision vacated and case remanded on basis that trial court did not apply proper APA standard of review to COE’s environmental analysis).

Kotrous, et al. v. Bayer Crop Science, et al., No. 06-15162, 2008 U.S. App. LEXIS 8258 (9th Cir. Apr. 17, 2008)(U.S. Sup. Ct. decision in United States v. Atlantic Research Corp., 127 S. Ct. 2331 (2007) allowing private parties to recover environmental clean-up cost has overruled 9th Circuit’s prior opinion in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997); potentially responsible parties under CERCLA may seek contribution and cost recovery from other potentially responsible parties).

Rick's Mushroom Service, Inc. v. United States, No. 2007-5137, 2008 U.S. App. LEXIS 6904 (Fed. Cir. Apr. 2, 2008)(action involving cost-share agreement between government and plaintiff for implementing conservation practices in mushroom waste recycling facility; court affirmed dismissal of plaintiff's action seeking indemnification from government for costs incurred in defending and settling third party claims).

American Petroleum Institute v. Johnson, No. 02-2247 (PLF), 2008 U.S. Dist. LEXIS 24963 (D. D.C. Mar. 31, 2008)(EPA’s 2002 regulatory definition of “navigable waters” (40 C.F.R. §112) under the Clean Water Act found to be arbitrary and capricious and in violation of the Administrative Procedures Act; EPA failed to consider impact of 2001 U.S. Supreme Court opinion in SWANCC and regulation was, therefore, not a product of reasoned decisionmaking and must be set aside).

Simpson v. Cotton Creek Circles, LLC, No. 07SA42, 2008 Colo. LEXIS 283 (Colo. Sup. Ct. Mar. 24, 2008)(state’s confined aquifer rules upheld; rules based on finding that San Luis Valley’s confined aquifer is overappropriated and any new groundwater withdrawals must be matched in equal measure to amount withdrawn; trial court’s holding that rules do not violate either CO statutes or CO Constitution upheld; confined aquifer does not contain any unappropriated water, thus restrictions on withdrawals from the aquifer do not violate the constitutional right to appropriate).

D.B. Feedyards, Inc. v. Environmental Sciences, Inc., 745 N.W. 2d 593 (2008)(plaintiff notified that a livestock waste control facility required and plaintiff hired defendant to provide environmental consulting services and submit permit application to state for construction and operation of livestock waste control facility; defendant submitted incomplete application and missed deadline for resubmitted application; EPA issued compliance order to plaintiff and notice of violation of CWA; plaintiff sued for breach of contract, negligence and breach of warranty; trial court granted summary judgment for plaintiff on negligence claim which was affirmed on appeal, but issue of material fact remained as to causation of plaintiff’s damages so summary judgment for plaintiff on that issue reversed).

American Bird Conservancy, Inc., et al. v. Federal Communications Commission, et al., 516 F.3d 1027 (D.C. Cir. 2008)(FCC must follow appropriate procedures under NEPA, ESA and MBTA to ensure that migratory birds are not killed by FCC towers).