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The Fourth Circuit granted a petition for review of the Forest Service's Special Use Permit and Record of Decision authorizing Atlantic, the project developer, to construct the Atlantic Coast Pipeline through parts of the George Washington and Monongahela National Forests and granting a right of way across the Appalachian National Scenic Trail. The court held that the Forest Service's decisions in its 2012 Planning Rule and the 2016 Amendment to the 2012 Planning Rule violated the National Forest Management Act and the court remanded for further proceedings. The court also held that the Forest Service violated the National Environmental Policy Act, and that the Forest Service lacked statutory authority pursuant to the Mineral Leasing Act to grant a pipeline right of way across the Appalachian National Scenic Trail. The court concluded that the Forest Service abdicated its responsibility to preserve national forest resources, and noted that the Forest Service's serious environmental concerns were suddenly, and mysteriously, assuaged in time to meet a private pipeline company's deadlines. View "Cowpasture River Preservation Association v. Forest Service" on Justia Law

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By a stipulated decree issued in 1920, the Tehama County Superior Court adjudicated water rights in Mill Creek. It declared the natural flow of the water up to a total rate of 203 cfs had been appropriated by the parties appearing before it for use upon their and other persons’ lands. The decree entitled these original owners of the water rights and their successors to continue diverting from Mill Creek a total of 203 cfs of water, and it allotted them shares in the amount of water each could divert. It entitled the owners to use or dispose of their share of water in any manner, at any place, or for any purpose, or in accordance with whatever agreement the owners may make with any other person or entity. As part of the decree, the court also appointed a water master of Mill Creek to implement its order. The decree gave the water master exclusive authority to divert and apportion the water during the irrigation season according to the decree’s terms, measure the diversions, and control and superintend the diversions and the gates and ditches used to divert the water. The owner of an appropriative right to water in Mill Creek sought declaratory relief to determine whether, under the judicial decree that established the right, it could: (1) use water appropriated to it on a year around basis and not only during the irrigation season; (2) use or transfer its water outside of the creek’s watershed; and (3) make these changes in the use and location of use without obtaining prior approval of the creek’s water master or the superior court. The trial court declared the decree did not give the owner these rights. The Court of Appeal agreed with the Orange Grove Irrigation District that the trial court’s holding was incorrect: the court created a condition that did not exist in the decree, and it did so based on a misunderstanding of the extent of control the decree granted to Los Molinos Mutual Water Company and of the operation of Water Code section 1706. Accordingly, the Court reversed and remanded the trial court's judgment and remanded for further proceedings. View "Orange Cove Irrigation Dist. v. Los Molinos Mutual Water Co." on Justia Law

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In this water use case, the Supreme Court affirmed the decision of the State of Hawaii Commission on Water Resource Management (Commission) concluding that Appellants waived the right to proceed on the contested case, holding that the Commission’s finding that Appellants waived the right to continue the case was not clearly erroneous or wrong. More than a decade ago, the Supreme Court vacated the issuance of two water use permits and remanded the matter to the Commission. On remand, the parties claiming to be the applicant’s successors in interest submitted a letter to the Commission stating that they did not have the financial resources to continue to pursue the case. Years later, Appellants filed a new water use application. The Commission treated the application as a continuation of the remanded case and then concluded that the letter constituted a waiver of Appellants’ right to continue the original proceedings. The Supreme Court affirmed, holding that the Commission did not err in finding that Appellants expressly waived their right to proceed with the contested case by their letter. View "In re Contested Case Hearing on the Water Use Permit Application Originally Filed by Kukui, Inc." on Justia Law

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At issue was the geographic scope of the permitting authority delegated to the Washington Department of Fish and Wildlife over hydraulic projects. A coalition of counties challenged the Department's statutory authority to regulate the construction or performance of work to occur exclusively above the ordinary high-water line. The Washington Supreme Court held the plain language of the statute at issue looked to the "reasonably certain" (not "absolutely certain") effects of hydraulic projects on state waters in determining the scope of the Department's permitting authority, and at least some projects above the ordinary high-water line were reasonably certain to affect those waters. An examination of relevant legislative history confirmed that the legislature intended the Department's regulatory jurisdiction to include projects above the ordinary high-water line that affected state waters. View "Spokane County v. Dep't of Fish & Wildlife" on Justia Law

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In 1998, the State Lands Commission granted Hanson’s predecessor 10-year leases, authorizing commercial sand mining from sovereign lands, owned by the state subject to the public trust, and managed by the Commission, under the Central San Francisco Bay, Suisun Bay, and the western Sacramento-San Joaquin River Delta. In 2006, Hanson requested extensions of several leases, but they expired before the Commission made its decision. The Commission granted four new 10-year leases covering essentially the same parcels in the San Francisco Bay. In 2012, opponents sought a writ of mandate to compel the Commission to set aside its approval of the project. In 2015, a different panel of the court of appeal found that the Commission’s environmental review of the project complied with the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), but that the Commission violated the public trust doctrine by approving the project without considering whether the sand mining leases were a proper use of public trust lands. The Commission reapproved the project; the court discharged a writ of mandate. The court of appeal affirmed. While the Commission erred by concluding that private commercial sand mining constitutes a public trust use of sovereign lands, there is substantial evidence that the project will not impair the public trust. View "San Francisco Baykeeper, Inc. v. State Lands Commission" on Justia Law

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The 42-inch diameter natural gas Mountain Valley Pipeline proposes to run 304 miles through Virginia and West Virginia, In the U.S. Army Corps of Engineers’ Huntington District, the Pipeline and related roads will cross 591 federal water bodies, including four major rivers three of which are navigable-in-fact rivers regulated by the Rivers and Harbors Act, 33 U.S.C. 403. Because construction will involve the discharge of fill material into federal waters, the Clean Water Act requires clearance from the Corps, 33 U.S.C. 1344(a). The Act provides for individual permits or “interested parties can try to fit their proposed activity within the scope of an existing general permit,” in this case Clean Water Act Nationwide Permit (NWP) 12, “which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact.” The Corps verified that the Pipeline can proceed under NWP 12 rather than an individual permit. The Fourth Circuit vacated, holding that the Corps lacked statutory authority to substitute its own special condition for a different special condition imposed by West Virginia as part of its certification of NWP 12. Without completion of the notice-and-comment procedures required by the Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. West Virginia did not follow federally-mandated notice-and-comment procedures in waiving another special condition imposed as part of its certification of NWP 12. View "Sierra Club v. United States Army Corps of Engineers" on Justia Law

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In 2001, the Fish and Wildlife Service listed the dusky gopher frog as an endangered species, under the Endangered Species Act of 1973, 16 U.S.C. 1533(a)(1), which required the Service to designate the frog's “critical habitat.” The Service proposed designating a site in St. Tammany Parish, Louisiana (Unit 1). The frog had once lived in Unit 1, but the land had long been used as a commercial timber plantation; no frogs had been spotted there for decades. The Service concluded that Unit 1 met the statutory definition of unoccupied critical habitat because of its rare, high-quality breeding ponds and distance from existing frog populations. The Service commissioned a report, which found that designation might bar future development, depriving the owners of up to $33.9 million, but concluded that the potential costs were not disproportionate to the conservation benefits and designated Unit 1 as critical habitat. The owners sued, contending that the closed-canopy timber plantation on Unit 1 could not be critical habitat for the frog, which lives in open-canopy forests. The district court and Fifth Circuit affirmed. The Supreme Court vacated. The decision not to exclude an area from critical habitat is subject to judicial review. An area is eligible for designation as critical habitat only if it is habitat for the species. Section 1533(a)(3)(A)(i), the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” Whether the frog could survive in Unit 1; whether habitat can include areas where the species could not currently survive; and whether the assessment of the costs and benefits of designation and resulting decision were arbitrary, capricious, or an abuse of discretion, must be addressed on remand. View "Weyerhaeuser Co. v. United States Fish and Wildlife Service" on Justia Law

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The Alliance challenged the approval of a project comprising a fuel station, convenience store, and quick serve restaurant on The Alameda and the adoption of a mitigated negative declaration for the project. The Alliance sought to compel the preparation of an Environmental Impact Report (EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000). In March 2016, the trial court issued a “Peremptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” requiring the city to set aside the resolutions, reconsider the significance of potential noise impacts, and take further action consistent with CEQA. The Alliance did not appeal from that decision but appealed from the December 2016 “Final Judgment on Petition for Writ of Mandamus,” which determined that the city’s supplemental return complied with the peremptory writ and with CEQA. The court of appeal affirmed, concluding that the March 2016 decision was the final judgment and the December 2016 decision was a post-judgment order. The court rejected claims that the city was required to prepare an EIR because there was substantial evidence in the record supporting a fair argument that the proposed project may have significant, unmitigated traffic and noise impacts and that the project violated the municipal code governing “formula retail businesses.” View "Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista" on Justia Law

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This case involved challenges by the High Sierra Rural Alliance (High Sierra) to the Plumas County’s general plan update and the final environmental impact report (EIR). All of High Sierra’s challenges related to these documents’ treatment of possible growth outside of the County’s planning areas. Specifically, High Sierra contended: (1) the County’s general plan update violated the California Timberland Productivity Act of 1982 (Timberland Act) by determining a residence or structure on a parcel zoned as a timberland production zone is necessarily compatible with timber operations; (2) the general plan update violated Government Code section 51104; (3) the County violated CEQA by failing to properly address the potentially significant impacts of allowing construction of multiple buildings covering up to two acres on a single parcel without any discretionary review or mitigation policies to protect the environment; (4) the County’s EIR was defective because it did not properly describe or disclose the potentially significant impacts of allowing new clustered subdivision development in rural areas under general plan update policy number LU1.1.4; and (5) the County should be required to recirculate the final EIR because the County added significant information regarding development after the close of the public comment period. The Court of Appeal concluded the County’s general plan update did not violate the Timberland Act by failing to recite the statutory language in Government Code section 51104. And the County’s EIR is not deficient for lack of study regarding the effects of section 51104 on the construction of residences and structures in timberland production zone parcels. The Court also concluded the EIR adequately analyzed reasonably foreseeable development within the County, including impacts that could be expected outside the planning areas. The Court agreed with the trial court that the County reasonably crafted the EIR as “a first-tier environmental document that assesses and documents the broad environmental impacts of a program with the understanding that a more detailed site-specific review may be required to asses future projects implemented under the program.” View "High Sierra Rural Alliance v. County of Plumas" on Justia Law

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The water court concluded Robert Sease diverted water from Sheep Creek in violation of a 2013 order, which forbade him to use out-of-priority water from Sheep Creek on his Saguache County property (“the Sease Ranch”). Thus, the water court found Sease in contempt of court and imposed both punitive and remedial sanctions on him. Sease appealed, arguing: (1) the water court had no basis to find that he owns the Sease Ranch; and (2) the water court improperly shifted the burden of proof to him when it noted that there was a lack of evidence in the record that “someone else came on the premises and did [the contemptuous] work without [his] authorization or against his will.” The Colorado Supreme Court disagreed with Sease on both arguments and affirmed the water court’s contempt order. View "Colorado v. Sease" on Justia Law