In case you missed it...

• Date: 01 January 2022

12022 ENVIRONMENTAL LAW REPORTER 52 ELR 10065

IN CASE YOU MISSED IT . . .

In the Courts

"In the Courts" contains full summaries of court cases reported in ELR Update during the month of November 2021. They

are listed under the following categories: Governance, Natural Resources, and Water. The summaries are then arranged

alphabetically by case name within each category. To access ELR's entire collection of court cases and summaries, visit

https://www.elr.info/judicial.

GOVERNANCE

Ministerio Roca Solida, Inc. v. United States, No. 16-826L,

51 ELR 20190 (Fed. Cl. Oct. 25, 2021). e Court of Fed-

eral Claims entered judgment for the U.S. government in a

takings challenge aga inst FWS for rerouting spring waters

that had previously owed throug h church property into a

restoration channel in an eort to save a native sh species.

e church argued the berm F WS installed upst ream of its

property to divert water into the restoration cha nnel caused

recurrent ooding on the property, and that the diversion re-

sulted in a total physical ta king of its property for which just

compensation was owed. e court found that the church

neither proved the government’s construction of the berm

and restoration channel caused the ooding on its property,

nor proved the ooding would not have occurred but for the

diversion. It therefore entered judgment for the government.

Whale and Dolphin Conservation v. National Marine Fisheries

Service, No. 21-cv-112 (APM), 51 ELR 20195 (D.D.C. Nov.

10, 2021). A district court granted in par t and denied in part

NMFS’ motion to dismiss a lawsuit seek ing an expansion of

the Service’s 2008 Vessel S+ation groups argued NMFS had

unreasonably delayed its response to the groups’ 2012 and

2020 petitions to expand the rule, and sought to compel the

Service to respond. e Service moved to dismiss for lack of

subject matter jurisdiction on mootness grounds. e court

found that a letter the Serv ice sent to the groups in March

2021 stated its denitive decision with respect to the 2012

petition in no uncertain terms, but not to the 2020 petition,

and thus constituted an adequ ate “response” to the 2012 peti-

tion for APA purposes but not to the 2020 petition. It there-

fore concluded the groups’ claim as to the 2012 petition was

moot, but that the 2020 petition was not, and gra nted in part

and denied in part the Ser vice’s motion to dismiss.

NATURAL RESOURCES

Bristol Bay Economic Development Corp. v. Pirzadeh, Nos.

3:19-cv-00265-SLG, 3:19-cv-00267-SLG, and 3:19-cv-

00268-SLG, 51 ELR 20191 (D. Alaska Oct. 29, 2021). A

district court g ranted EPA’s motion to remand and vacate

the Agency’s 2019 decision to withdraw a proposed deter-

mination that would have restricted a copper and gold mine

from using certai n waters at disposal sites for dredged and ll

material. e court found that neither retention of jurisdic-

tion pending remand nor establishment of an administrative

timetable, as requested by EPA, was wa rranted, and ordered

that the decision be vacated and rema nded to the Agency for

further proceedings.

Cascadia Wildlands v. Warnack, Nos. 6:21-cv-1227-MC and

6:21-cv-1228-MC, 51 ELR 20194 (D. Or. Nov. 5, 2021). A

district court g ranted environmental groups’ motion to pre-

liminarily enjoin a loggi ng project in the Willamet te Nation-

al Forest in areas a ected by wildres. e groups argued

the Forest Service could not use t he road repair and main-

tenance categorical exclusion (CE) to avoid NEPA review of

the project, which authorized the fell ing of “danger” trees

along 400 miles of forest roads. e court found that utiliz-

ing commercial logging oper ations to fell trees that have little

likelihood of imminent failure to ensure that forest roads a re

clear during potential f uture wildres was beyond the scope

of the CE, and thus th at the Service must prepare a n EA or

an EIS. It therefore granted the groups’ motion for prelimi-

nar y injunc tion.

Evans v. Federal Energ y Regulatory Commission, No. 20-1161,

51 ELR 20192 (D.C. Cir. Nov. 1, 2021). e D.C. Circuit

ordered FERC to consider whether to stay a certicate for a

pipeline that would carr y natural ga s from western Canada

to a proposed export terminal i n Oregon in light of the devel-

oper’s decision to postpone development.

WATER

In re Clean Water Act Rulemaking, Nos. C 20- 04636 WHA,

C 20-04869 WH A, and C 20-06137 WHA, 51 ELR 20189

(N.D. Cal. Oct. 21, 2021). A district court vacated and re-

manded EPA’s 2020 Clean Water Act Section 401 Certi-

cation Rule, which limited the ability of states and Native

American tribes to regulate water pollution. States, tribes,

and conservation groups sought to have the rule vacated,

and EPA moved to remand without vacatur to give it time

to promulgate a revised rule. e cour t found that the lack

of reasoned decisionmaking and apparent errors in the rule’s

Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.