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The Ninth Circuit affirmed the district court's grant of summary judgment for the Forest Service in an action brought by environmental groups challenging travel management plans permitting limited motorized big game retrieval in three Ranger Districts in the Kaibab National Forest. The panel held that the plans did not violate the Travel Management Rule where the new restrictions constitute a "limited" use of motorized vehicles; the Forest Service complied with the rule by limiting motor vehicle use to a defined set of roads in each District; and the Forest Service did not violate the plain terms of the Travel Management Rule. Determining that plaintiffs have standing, the panel held that the Forest Service did not violate the National Environmental Policy Act (NEPA), because the Forest Service's determination that no environmental impact statements (EIS) were needed as to the Districts' travel management plans was reasonable. Finally, the Forest Service did not violate the National Historic Preservation Act (NHPA), because the Forest Service conducted the required prefield work, consulted with the appropriate entities, and reached a determination consistent with the evidence before it. View "WildEarth Guardians v. Provencio" on Justia Law

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In 2008, defendant-appellees Roger Brooks and Veryl Goodnight (together “Brooks”) filed an application in the water court to change the point of diversion of their water right from the Giles Ditch to the Davenport Ditch. The application and the required notice published in the local newspaper misidentified the section and range in which the Davenport Ditch headgate was located. However, both referred repeatedly to the Davenport Ditch. Brooks successfully moved to amend the application with the correct section and range shortly afterward. The water court, finding that “no person [would] be injured by the amendment,” concluded that republication of the notice was unnecessary. Eight years later, plaintiff-appellant Gary Sheek filed this action in the water court, seeking judgment on five claims for relief: (1) declaratory judgment that Brooks’ decree was void for insufficient notice; (2) quiet title to a prescriptive access easement for the Davenport Ditch, including ancillary access rights; (3) trespass; (4) theft and interference with a water right; and (5) a permanent injunction prohibiting Brooks from continued use of the Davenport Ditch. After concluding that sufficient notice was provided, the water court granted Brooks’ motion for summary judgment and deemed the trespass and injunction claims moot in light of that ruling. The court then dismissed the prescriptive easement claim as well as the theft and interference claim for lack of subject-matter jurisdiction. The Colorado Supreme Court agreed with the water court’s conclusion that the published notice was sufficient. As a result, all of the remaining claims should have been dismissed for lack of subject-matter jurisdiction. View "Sheek v. Brooks" on Justia Law

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The Supreme Court affirmed the district court's judgment granting summary judgment and dismissing Plaintiffs' claims challenging the decisions of a county board of supervisors approving a wind energy ordinance and a specific wind energy project, holding that Plaintiffs' claims were matters for the board of supervisors, and not the courts, to resolve. The board unanimously passed and approved a "wind energy conversion systems ordinance" and then granted conditional approval for the wind energy project at issue in this case. Plaintiffs then filed a petition for declaratory and injunctive relief and for a writ of certiorari against the board seeking a declaration that the ordinance was arbitrary, capricious, unreasonable, void and unenforceable and a writ determining that the approval of the project should be set aside as illegal, arbitrary and capricious, unreasonable and void. The district court granted summary judgment for the defendants. The Supreme Court affirmed, holding that the board did not act illegally, arbitrarily, or capriciously. View "Mathis v. Palo Alto County Board of Supervisors" on Justia Law

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In this case concerning an Iowa Utilities Board (IUB) legal standard for when a series of wind turbines constitute an "electric power generating plant or combination of plants at a single site" within the meaning of Iowa Code 476A.1(5), the Supreme Court affirmed the district court's judgment upholding the IUB's declaratory order declining to require a certificate of public convenience, use, and necessity for a large 170-turbine wind project, holding that the IUB did not err in interpreting Iowa Code 476A.1(5). Since 1997, the IUB has ruled that for wind energy purposes all turbines connected to a single gathering line shall be considered a "single site" or "facility" within the meaning of section 476A.1(5) and that turbines connected to separate gathering lines shall be treated as different sites or facilities. Landowners in Palo Alto County in this case argued that the IUB should have exercised jurisdiction over the turbine wind project at issue in this case because, under the common gathering line standard, it did not exceed the minimum power output requirements. The district court upheld the IUB's position declining to require a certificate for the facility. The Supreme Court affirmed, holding that the phrase "single site" is ambiguous and that the IUB's interpretation of section 476A.1(5) is not erroneous. View "Mathis v. Iowa Utilities Board" on Justia Law

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The Supreme Court reversed the decision of the State Engineer granting Intermountain Water Supply Ltd., which held water rights permits to transmit water to Lemmon Valley for municipal use, an extension of time in which to apply the water to beneficial use, holding that the anti-speculation doctrine applies to requests for extensions of time and that Intermountain failed to show reasonable diligence to apply the water to beneficial use. In its extension request, Intermountain submitted an affidavit claiming that it had an option agreement with two unidentified "worldwide engineering and construction firms." The Supreme Court held (1) a generic option contract does not save an applicant from the anti-speculation doctrine, and the State Engineer abused his discretion in determining that Intermountain's averred option agreements satisfied the anti-speculation doctrine; and (2) there was insufficient evidence in the record to demonstrate reasonable diligence under Nev. Rev. Stat. 533.380(3)-(4) and Desert Irrigation, Ltd. v. State, 944 P.2d 835, 841 (Nev. 1997). View "Sierra Pacific Industries v. Wilson" on Justia Law

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A series of appeals concerned a dispute over competing rights to irrigation tail and waste water that collected in a borrow ditch. The Colorado Supreme Court was asked to determine whether a driveway that interrupted the flow of water in the ditch rendered the sections of borrow ditch on either side of the driveway separate sources of water for purposes of the postponement doctrine. S. Cade and Bradley Huffaker and a neighboring landowner, Lee Crowther, filed competing applications for rights to this water. The Huffakers filed their application in 2013; Crowther filed his in 2016. The Huffakers argued that under the postponement doctrine, they were entitled to the senior right in the borrow ditch water because they filed their application first. The water court held that the postponement doctrine did not apply here because it concluded the water rights claimed by the Huffakers and Crowther did not derive from the same source. Therefore, the court held that Crowther’s right to divert water at the culvert was not junior to the Huffakers’ right, even though Crowther’s application was filed two and a half years after the Huffakers’ application. The Huffakers appealed, again contending that the postponement doctrine applied to determine the priority of the applicants’ competing rights to the water in the borrow ditch, and that they were entitled to the senior priority because they filed their application first. They further argued the collection area of their absolute water right began not at the driveway, but farther south (upstream) at the same point as Crowther’s right. The Supreme Court agreed with both contentions and reversed the water court. View "Concerning the Application for Water Rights of S. Cade Huffaker" on Justia Law

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Petitioners challenged the EPA's 2017 rule establishing a process for updating the inventory of chemicals manufactured or processed in the United States under the Toxic Substances Control Act, alleging that the rule unlawfully shields information from public disclosure. The DC Circuit affirmed the petition for review in part and held that petitioner correctly determined that the EPA's elimination of questions pertaining to reverse engineering was arbitrary and capricious. Accordingly, the court ordered a limited remand, without vacatur, for the EPA to address its arbitrary elimination of substantiation questions regarding reverse engineering. The court otherwise denied the petition. View "Environmental Defense Fund v. EPA" on Justia Law

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After ONDA challenged the BLM's Recreation Plan, which involved the route network for motorized vehicles in the Steens Mountain Area, the Interior Board of Land Appeals approved the related Travel Plan under the National Environmental Policy Act of 1969 (NEPA), the Federal Land Policy Management Act of 1976 (FLPMA), and the Steens Mountain Cooperative Management and Protection Act of 2000 (Steens Act). Harney County then intervened to defend the Board's approval of the Travel Plan and cross-claimed against the BLM, challenging the Recreation Plan. The district court upheld both the Recreation Plan and the Travel Plan. The Ninth Circuit affirmed in part and reversed in part, holding that the BLM satisfied its obligation to consult the Steens Mountain Advisory Council before issuing the Recreation Plan, so its action was not arbitrary and capricious in that respect; the BLM acted arbitrarily and capriciously by changing its definition of "roads and trails" without providing a reasoned explanation for the change; the Board acted arbitrarily and capriciously by affirming the BLM's issuance of the Travel Plan; and the BLM acted arbitrarily and capriciously in issuing the Recreation Plan. Finally, the court vacated the cost award to the BLM and remanded. View "Oregon Natural Desert Assoc.v. Rose" on Justia Law

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The Supreme Court affirmed the decision of the Florida Public Service Commission (PSC) allowing the Florida Power and Light Company (FPL) to recover certain environmental compliance costs from ratepayers pursuant to Fla. Stat. 366.8255, known as the Environmental Cost Recovery Clause, holding that the PSC's findings were supported by competent, substantial evidence. On appeal, the Citizens of the state of Florida, the Office of Public Counsel argued, among other things, that section 366.8255 limits cost recovery to costs incurred in preventing future environmental harm. The Supreme Court affirmed, holding (1) because of the nature of the environmental harm at issue in this case, prevention and remediation were inextricably intertwined, and therefore OPC's reading of section 366.8255(1)(c) is rejected; and (2) the PSC did not err when it determined the costs of a consent order and consent agreement were within the scope of a 2009 monitoring plan, for which the PSC had previously approved recovery. View "Citizens of State of Florida v. Brown" on Justia Law

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In 2005, the Ginsburgs, through their corporation (Hawthorne), acquired Brooklyn property and applied to participate in the Brownfield Cleanup Program. The New York State Department of Environmental Conservation (DEC) approved their application and the parties entered into an Agreement. The development was completed in 2011, converting an old shoe factory into a residential rental building. In 2011, the Ginsburgs granted the state an environmental easement; DEC issued a certificate of completion. Hawthorne applied for a brownfield redevelopment tax credit of $6,583,835.10 for tax year 2011, with the Ginsburgs’ share equaling $4,975,595.00, In 2013, the state paid the Ginsburgs a refund of $1,903,951.00 attributable to the brownfield redevelopment tax credit. They did not report the payment as income on their 2013 federal income tax return, claiming that this payment constituted a nontaxable refund. The IRS determined the Ginsburgs owed an additional $690,628.46 in federal income tax, which they paid. The Federal Circuit affirmed the Claims Court, holding that the excess payment of the tax credit they had received from the state is federally taxable income and “does not qualify for any exclusion or exception from the federal definition of income.” The Ginsburgs freely chose to participate and take advantage of New York’s state tax credit program and have complete dominion and control over the payment because there is a legally adequate guarantee that they will be allowed to excess amount of the tax credit, barring actionable misconduct on their part. View "Ginsburg v. United States" on Justia Law