29 ELR 10610 | Environmental Law Reporter | copyright © 1999 | All rights reserved

The U.S. Supreme Court's 1998-1999 Term

Marc A. Yaggi

Editors' Summary: Although there were several distractions for the U.S. Supreme Court to handle this Term, the Court managed to stay focused and perform its role as the highest power of the Judicial Branch. The Court's environmental docket for the 1998-1999 Term was slower than some previous Terms, but the Court still played an integral role in shaping environmental law. This Term, the Court issued opinions in 6 environmental or environmentally related cases, and denied review in over 40 such cases. The opinions issued covered a variety of topics ranging from the admissibility of expert testimony to regulatory takings. This Comment surveys the environmental and environmentally related cases the Court reviewed or chose not to review during its 1998-1999 Term. The Comment then concludes with a look forward to the 1999-2000 Term.

Mr. Yaggi is the Litigation Coordinator for ELR—The Environmental Law Reporter. He received a J.D. from Pace University School of Law in 1997 and a B.S. from the Pennsylvania State University in 1993. The views expressed in this Comment are not necessarily shared by the Environmental Law Institute.

[29 ELR 10611]

No review of the 1998-1999 U.S. Supreme Court Term can neglect the rare and intriguing event that occurred when Chief Justice Rehnquist was called on to preside over the politically charged Senate trial of President William Jefferson Clinton.1 It was the first time since Andrew Johnson's Senate trial in 1868 that a Chief Justice of the United States was engaged in the role.2 While this engaging event lured out of the woodwork political pundits young and old to milk every possible minute of media exposure, the Court's work in the traditional courtroom proceeded at a much slower pace. In fact, there were times when old issues, such as fallout over a former law clerk's publication of a book allegedly revealing Court clerk secrets, were dredged up to make news.3 At one point, even Justice Breyer's use of the pronoun "I" in a majority opinion made the frontpage headlines.4

The 1998-1999 Term's environmental activity proceeded at a slow pace on the Court's spectrum of activity. This is not to say that there were not significant developments in the law. However, the Court heard and decided only about six environmental or environmentally related cases—with most cases being more environmentally related than environmental per se.5 Similar to last Term, the Daubert standard of admitting expert testimony was refined.6 Also in keeping with last Term, the Court heard cases requiring it to adjudicate Native American rights.7 The Court handed down an important takings decision.8 And it overturned a $ 1.5 billion global asbestos settlement.9

This Comment surveys the environmental and environmentally related cases the Court reviewed during its 1998-1999 Term. The Comment also discusses several of the cases that were docketed but that the Court chose not to review. The Comment then concludes with a look forward to the 1999-2000 Term.


During the 1998-1999 Term, the Court denied review in over 40 cases involving environmental law and related fields, and issued opinions in 6 such cases.10 The six environmental and environmentally related cases decided represent a variety of environmental issues; however, none of the opinions involve any of the traditional environmental statutes.11 The following section details the Court's opinions in the six cases decided, with greater attention given to the more significant environmental cases.

Expert Testimony

[] Kumho Tire Co. v. Carmichael.12 In Kumho Tire, the Court again refined the standard of evidentiary reliability established in Daubert v. Merrell Dow Pharmaceuticals, Inc.13 The Court held that the Daubert standard setting forth the trial judge's general "gatekeeping" obligation applies to the admissibility of all expert testimony, not just scientific testimony. Applying this standard, the Court then held that a district court's decision not to admit a tire expert's testimony in a products liability case concerning an allegedly defective tire was within its discretion and lawful.

Kumho arose out of an automobile accident caused after the right rear tire of a minivan driven by the plaintiff, Patrick Carmichael, blew out.14 In the ensuing litigation, the plaintiff relied significantly on the deposition testimony of a tire failure expert, who determined that a defect in the tire's manufacture and design caused the blow-out.15 In the district court, the defendant tire company moved to exclude the tire expert's testimony on the ground that his analysis failed Fed. R. Evid. 702's reliability requirement.16 The district court agreed with the tire company and granted the motion to exclude the testimony.17 The district court then granted the plaintiff's motion for reconsideration to take a more flexible approach to applying the Daubert factors; however, the district court again found the expert's testimony unreliable. On appeal, the Eleventh Circuit reversed the district court, noting that the Supreme Court in Daubert explicitly limited its holding to cover only scientific experts.18

At the Supreme Court, with Justice Breyer penning the majority opinion, the Eleventh Circuit was reversed. The Court held that the Daubert factors for determining the admissibility of expert testimony apply to the admissibility of all expert testimony, not just scientific testimony.19 The language of Fed. R. Evid. 702, which establishes a district court's basic gatekeeping obligation, makes no relevant distinction between "scientific" knowledge and "technical" or [29 ELR 10612] "other specialized" knowledge.20 Rather, it makes clear that any such knowledge might become the subject of expert testimony. The Court in Daubert referred only to scientific knowledge because scientific testimony was the nature of the expertise at issue. The Court further noted that it would be difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended on a distinction between scientific knowledge and technical or other specialized knowledge, as there is no clear line that divides the one from the others.21

The Court next held that a trial judge determining the admissibility of an engineering expert's testimony may consider several more specific factors that Daubert said might affect a judge's gatekeeping determination.22 Daubert describes the Fed. R. Evid. 702 inquiry as a flexible one and makes clear that the factors it mentions do not constitute a definitive checklist or test. The relevance and degree of usefulness of each factor will depend on the particular circumstances of the case at issue.

Further explaining the way in which a trial court may consider Daubert factors, the Court applied them to the instant case. Whether Daubert's specific factors are reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.23 And the doubts that triggered the district court's initial inquiry here were reasonable, as was the district court's conclusion that the tire expert's testimony was not reliable.24

Justice Scalia, joined by Justices O'Connor and Thomas, filed a brief concurrence, whileJustice Stevens concurred in part and dissented in part. In his partial dissent, Justice Stevens argued that the question of whether the trial judge abused his discretion when he excluded the tire expert's testimony was not a proper question for the Court to decide.25 Certiorari was granted in this case to decide whether a trial judge may consider Daubert factors to determine the admissibility of an engineering expert's testimony. To determine whether the trial judge abused his discretion is a question that requires a study of the record that is better suited for the Eleventh Circuit.26 Moreover, Justice Stevens believes that it is neither fair to litigants nor good practice for the Court to decide questions not raised by the certiorari petition.27

Takings—Jury Trial

[] City of Monterey v. Del Monte Dunes at Monterey, Ltd..28 In this case, the Court held that the issue of liability in a developer's regulatory takings claim against a city was properly submitted to a jury. The case arose after the respondent developer and its predecessor made several attempts to develop a 37.6-acre oceanfront parcel in Monterey, California.29 After the city imposed more rigorous demands on the developer each time it denied the developer's proposals to develop the property, the developer filed suit under 42 U.S.C. § 1983, claiming that the city effected a regulatory taking without paying compensation or providing an adequate postdeprivation remedy for the loss.

The district court dismissed as unripe the developer's claims on the grounds that the developer had neither obtained a definitive final decision concerning the development the city would allow nor sought just compensation in state court. The Ninth Circuit reversed and remanded the district court's decision, holding that the city's decision was sufficiently final for review and that the developer was not required to seek relief in state court because the state did not provide a compensatory remedy for temporary regulatory takings when the city issued its final denial.30

On remand, the district court submitted the developer's takings and equal protection claims to a jury, but reserved for itself the developer's substantive due process claim. After trial, the district court instructed the jury that it should find for the developer if the jury determined that the developer had been denied all economically viable use of the property or that the city's reasons for rejecting the developer's proposal did not substantially advance a legitimate public purpose. The jury returned with a general verdict for the developer on its takings claim, a separate verdict for the developer on its equal protection claim, and a damages award of $ 1.45 million. Thereafter, the district court also held in favor of the developer on its substantive due process claim.

On appeal, the Ninth Circuit affirmed the district court.31 The Ninth Circuit first held that it was proper for the district court to submit the takings claim to a jury because § 1983 provides for a jury trial. Moreover, the Ninth Circuit held that the questions of whether the developer had been denied all economically viable use of the property and whether the city's reasons for rejecting the developer's proposal substantially advanced a legitimate public purpose are questions suitable for a jury.

On review, the Court was asked to resolve,

(1) whether issues of liability were properly submitted to the jury on Del Monte Dunes' regulatory takings claim, (2) whether the Court of Appeals impermissibly based its decision on a standard that allowed the jury to reweigh the reasonableness of the city's land-use decision, and (3) whether the Court of Appeals erred in assuming that the rough-proportionality standard of Dolan v. City of Tigard, 512 U.S. 374 [24 ELR 21083] (1994), applied to this case.32

[29 ELR 10613]

In an opinion by Justice Kennedy, the Court first held that the Ninth Circuit's application of the rough proportionality standard of Dolan v. City of Tigard33 was improper in this case.34 The rule applied in Dolan considers whether dedications demanded as conditions of development are proportional to the development's anticipated impacts.35 The rule was not designed to address the much different questions that arise where a landowner's challenge is based on denial of development, rather than on excessive exactions.36 The Court concluded, however, that the Ninth Circuit's discussion of the rough proportionality standard was unnecessary to its decision to sustain the jury's verdict and, therefore, was irrelevant to the disposition of the case.37

The Court then held that it was not error for the Ninth Circuit to hold that the jury could have found the city's denial of the final development plan not reasonably related to legitimate public interests. The trial court's jury instructions were consistent with the Court's previous discussions of regulatory takings liability.38 Moreover, the jury was not given free rein to second-guess the city's land use policies.39 The jury was instructed that the various purposes asserted by the city were legitimate public interests.40 The question submitted to the jury was confined to whether, in light of all the history and the context of the case, the city's particular decision to deny the developer's final development proposal was reasonably related to the city's proffered justifications.41 In addition, the city's argument that, as a matter of law, its land use decisions are immune from judicial scrutiny under all circumstances is contrary to settled regulatory takings principles.42

The Court next held that the developer's suit was an action at law and proper for a jury to resolve. Although § 1983 authorizes a person to seek relief through an action at law, it does not imply the right to a jury trial.43 A constitutional analysis, however, reveals that the Seventh Amendment authorizes a jury trial in this case.44 The Seventh Amendment applies not only to common-law causes of action, but also to statutory causes of action that are analogous to common-law causes of action. "It is settled law … that the Seventh Amendment jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to 'sound basically in tort,' and seek legal relief."45 And there is no doubt that § 1983 actions sound in tort. "Just as common-law tort actions provide redress for interference with protected personal or property interests, § 1983 provides relief for invasions of rights protected under federal law."46 Further, the developer sought legal relief—damages for the unconstitutional denial of compensation for the taking of its property. Therefore, the developer's claim was an action at law.

After concluding that the developer's § 1983 claim was an action at law, the Court held that the particular issues of liability were proper for determination by a jury. Although liability questions usually are decided by a jury in suits sounding in tort, there is no precise analogue at common law for the specific test of liability set forth in this case.47 Also, none of the Court's prior takings cases explicitly addressed the proper allocation of liability determinations.48 However, the issue of whether a landowner has been deprived of all economically viable use of his property is a predominantly factual question and, thus, a question for the jury.49

Justice Scalia wrote separately concurring in part and concurring in the judgment.50 Justice Souter, with whom Justices O'Connor, Ginsburg, and Breyer joined, concurred in part and dissented in part from the majority opinion.51 Justice Souter would have held that the district court erred in submitting the developer's claim to a jury.52

Native Americans—Hunting, Fishing, and Gathering Rights

[] Minnesota v. Mille Lacs Band of Chippewa Indians.53 Similar to the Yankton Sioux case decided last Term, in Mille Lacs, the Court was called on to interpret the status of Native American bands' rights under an 1837 treaty entered into by Native American tribes and the federal government. In the 1837 treaty, the tribes ceded lands to the United States but retained the rights to hunt, fish, and gather on those lands.

In the district court, the state of Minnesota claimed that an 1850 executive order, an 1855 treaty, and the 1858 admission of Minnesota as a state of the Union terminated the bands' usufructuary54 rights on the ceded lands. The district court and the Eighth Circuit held that the bands retained their usufructuary rights under the 1837 treaty with respect to land in Minnesota.55 More specifically, the Eighth Circuit held that an 1850 executive order by President Taylor did not abrogate the bands' rights because President Taylor did not have the authority to issue part of the order, which in turn meant that the entire order was invalid.56 Also, an 1855 treaty did not extinguish the bands' rights.57 The revocation [29 ELR 10614] of hunting and fishing rights was neither discussed during the treaty negotiations nor mentioned in the treaty. Further, there was no evidence of congressional intent to revoke the bands' rights when Minnesota was granted statehood.58

In an opinion by Justice O'Connor, the Court affirmed the Eighth Circuit's decision. The Court first held that the 1850 executive order, which ordered the removal of a band from ceded lands, did not terminate the bands' usufructuary rights under the 1837 treaty.59 Minnesota could point to no statutory or constitutional authority for the removal order, thus, the order was unauthorized.60 In addition, the order's revocation of the bands' usufructuary rights was insufficient because the revocation was inseverable from the invalid removal order.61 "The 1850 order embodied a single, coherent policy, the predominant purpose of which was removal of the Chippewa from the lands they had ceded to the United States."62

The Court next held that the 1855 treaty did not abrogate the bands' usufructuary rights.63 The 1855 treaty was designed primarily to transfer the bands' land to the United States, not to terminate the bands' usufructuary rights.64 Further, the historical record provides no support for the theory that the bands' relinquishment within the treaty of all right, title, and interest in any lands in Minnesota was designed to abrogate the usufructuary rights guaranteed under the 1837 treaty.65 The Court further held that, contrary to Minnesota's assertion, Oregon Department of Fish and Wildlife v. Klamath Tribe66 does not control this case.67

The Court then held that Minnesota's admission to the Union in 1858 did not extinguish the bands' usufructuary rights under the 1837 treaty.68 There is no clear evidence in Minnesota's enabling act of congressional intent to abrogate the bands' rights.69 In addition, the Equal Footing Doctrine does not extinguish the bands' usufructuary rights.70 Contrary to case law relied on by the state, a Native American tribe's treaty rights to hunt, fish, and gather on state lands are not irreconcilable with a state's sovereignty over its natural resources.71 Therefore, statehood by itself is insufficient to extinguish Native American treaty rights to hunt, fish, and gather on land within state boundaries.72

Chief Justice Rehnquist, dissenting and joined by Justices Scalia, Kennedy, and Thomas, would have held that the bands' usufructuary rights to the ceded lands were terminated.73 In fact, the Chief Justice argued that all three of the Court's conclusions were incorrect. He claimed that the plain terms of the 1837 treaty granted the bands a quite limited privilege to hunt and fish, subject to the President's approval.74 In addition, the 1850 executive order constituted a valid revocation of the bands' hunting and fishing privileges.75 Further, the plain meaning of the 1855 treaty is the bands' relinquishment of all rights to land, contrary to the majority's conclusion that "all" does not in fact mean "all."76 And under the Equal Footing Doctrine, the bands' temporary and precarious treaty privileges were eliminated by the admission of Minnesota to the Union.77

Justice Thomas, dissenting, would have held that the 1837 treaty did not limit Minnesota's sovereign regulatory authority over the bands' use of the state's natural resources.78

Nuclear Waste—Tribal Court Exhaustion

[] El Paso Natural Gas Co. v. Neztsosie.79 In Neztsosie, the Court faced another issue concerning Native American rights. Here, the Court held that the tribal court exhaustion doctrine did not require a district court to abstain from deciding whether Native Americans' tort claims arising from uranium mining on their reservation constituted public liability actions under the Price-Anderson Act.80

The case arose when Native American respondents Laura and Arlinda Neztsosie filed suit for compensatory and punitive damages under Navajo tort law against a gas company and its subsidiary in the Navajo Nation district court.81 The Neztsosies alleged that the companies operated open pit uranium mines on Navajo property from 1950 to 1965.82 The Neztsosies further claimed that the open pit mines collected water used by the Neztsosies for drinking and other purposes and, as a result, the Neztsosies suffered injuries from exposure to radioactive and other hazardous materials.83 Shortly after the Neztsosies filed suit, another Navajo member, Zonnie Richards, filed a similar suit against another mining company alleging wrongful death and loss of consortium.84

In response to the actions brought in the Navajo Nation district court, the gas and mining companies filed suit in a U.S. district court seeking to enjoin the Neztsosies and Zonnie Richards from pursuing their claims in tribal court.85 The district court denied the companies' requests for preliminary injunction except to the extent that the Navajo members sought relief under the Price-Anderson Act.86 The district court then declined to determine whether the Act applied to the members' claims and left those determinations to the tribal courts.87 The companies appealed.

[29 ELR 10615]

On appeal, the Ninth Circuit affirmed the district court's decision not to enjoin the members from pursuing Price-Anderson Act claims and the district court's decision to allow the tribal courts to decide whether the members' claims fell under the Act.88 The Ninth Circuit did, however, address the district court's partial injunctions against the members, even though the rulings were not appealed.89 The Ninth Circuit reversed those partial injunctions and held that the Price-Anderson Act contains no express jurisdictional prohibition barring a tribal court from determining its jurisdiction over claims brought under the Act.90

The Supreme Court, in an opinion by Justice Souter, held that the tribal court exhaustion doctrine did not require a district court to abstain from deciding whether Native Americans' tort claims arising from uranium mining on their reservation constituted public liability actions under the Price-Anderson Act. The Court, however, first held that the Ninth Circuit erred in addressing the partial injunctions that were not appealed.91 To rationalize addressing the issues sua sponte, the Ninth Circuit claimed that important comity considerations were involved. However, the comity considerations invoked by the Ninth Circuit are in-adequate to defeat the institutional interest in fair notice and repose that the prohibition against modifying judgments in favor of a nonappealing party advances.92 In fact, the Court noted that "in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule."93

Turning to the merits of the case, the Court then held that the tribal court exhaustion doctrine did not require the district court to abstain from deciding the question of tribal court jurisdiction. The Price-Anderson Act gives district courts original jurisdiction over claims arising out of or resulting from a nuclear incident, and it also provides for removal as of right to federal court if a putative Price-Anderson action is brought in state court.94 The reasons for this congressional policy of immediate access to federal forums are as much applicable to tribal court as to state court litigation.95 "Applying tribal exhaustion would invite precisely the mischief of 'duplicative determinations' and consequent 'inefficiencies' that the Act sought to avoid …."96 Thus, because the comity rationale for applying the tribal exhaustion doctrine is inappropriate for Price-Anderson Act claims, the district court should have decided whether the members' claims were public liability actions arising out of or resulting from a nuclear accident.97 Accordingly, the Court vacated the Ninth Circuit's judgment and remanded the case to the district court.

Asbestos Litigation—Class Certification

[] Ortiz v. Fibreboard Corp.98 Although asbestos was found to be harmful decades ago, the continued presence of asbestos and the latency period associated with asbestos-related disorders has subjected asbestos manufacturers to continuing personal injury claims for compensation. The Ortiz case involved a $ 1.5 billion global asbestos settlement in which an asbestos manufacturer sought to settle all possible present and future personal injury asbestos claims against it.99 For the settlement, the manufacturer and its insurers established a limited fund to settle all claims. The insurers put up $ 1.525 billion, and the manufacturer contributed $ 10 million.100

As part of the agreement, all class members had to provide full releases to the manufacturer and its insurers.101 No one in the settlement class could opt-out and sue the manufacturer as an individual. In exchange, the manufacturer and its insurers would set up a trust to process and pay the class members' claims.102

The district court certified the class and approved the settlement as fair, adequate, and reasonable. On appeal, the Fifth Circuit affirmed, holding that "there was a commonality in class members' shared interest in securing and equitably distributing maximum possible settlement funds, and that the representative plaintiffs were sufficiently typical both in sharing that interest and in basing their claims on the same legal and remedial theories that absent class members might raise."103 The Fifth Circuit also found that there were no conflicts of interest serious enough to undermine the adequacy of the class counsel's representation. On remand after the Supreme Court's decision in Amchem Products, Inc. v. Windsor,104 the Fifth Circuit again affirmed the district court's certification of the settlement class under Fed. R. Civ. P. 23(b)(1)(B).

In an opinion by Justice Souter, the Court reversed the Fifth Circuit's affirmation of the certification of the mandatory [29 ELR 10616] settlement class. The class failed to demonstrate that the fund was limited except by the parties' agreement.105 The upper limit of the fund itself was not adequately demonstrated, without which no showing of the insufficiency of the finances for all litigants is possible.106 In addition, no independent evaluation of the potential finances of the insurers occurred.107 Instead, the fund was simply accepted as representing the insurers' limits. Such an assumption of the fund's fair value could not fairly be made because the class counsel had a conflict of interest that encouraged settlement. At least some of the lawyers representing the class of plaintiffs also had negotiated the separate settlement of other pending claims, the full payment of which was contingent on a successful global settlement agreement.108 Moreover, the manufacturer's retention of virtually its entire net worth seems irreconcilable with the justification of necessity in a limited fund class action.109

The Court then held that the class certification also failed on the equity principles of inclusiveness of the class and fairness of distribution to those within it.110 The definition of the class excludes a myriad of claimants with present or foreseeable causes of action against the manufacturer.111 Further, members within the class possess disparate claims, and the class provides no procedures to resolve the issues of treating similarly situated claimants with equal fairness.112

Justice Rehnquist, joined by Justices Scalia and Kennedy, concurred. Justice Breyer, joined by Justice Stevens, dissented from the majority opinion.113 Justice Breyer would allow the district court full authority to exercise discretion to find an equitable resolution to such complex cases.114

Coal Lands Act—Coalbed Methane Gas

[] Amoco Production Co. v. Southern Ute Indian Tribe.115 In this case, with an opinion written by Justice Kennedy, the Court reversed the Tenth Circuit and held that U.S. reservation of coal under the Coal Lands Acts of 1909 and 1910116 did not include coalbed methane (CBM) gas. Consequently, a Native American tribe having equitable title to coal in lands within its reservation that homesteaders settled under the 1909 and 1910 Acts does not own the CBM gas found within its coal formation. At the time the Acts were passed, coal was commonly defined as the solid fuel resource, and the gas that escaped from coal was deemed separate and distinct.117 Moreover, Congress intended to reserve only the solid rock resource and not the CBM gas.118 This interpretation is supported by the fact that CBM gas was considered a dangerous waste product at that time, rather than a valuable fuel.119 Had Congress intended to reserve the gas rights it would have done so explicitly as it had in subsequent congressional enactments.120 And it is unlikely that Congress was concerned about any problems that might arise from the resulting split coal/CBM gas estate.121 Justice Ginsburg dissented and would apply the canon that ambiguities in land grants are construed in favor of the sovereign.122 Justice Breyer took no part in the consideration or decision of the case.123

Cases for Which the Court Denied Petitions for Certiorari

Although cases decided by the Supreme Court often generate more media and scholarly attention, the cases for which the Court denies review also have a great impact on the law. Cases denied review remain as circuit precedent and persuasive authority. In its 1998-1999 Term, the Supreme Court denied review in over 40 environmental and environmentally related cases. The following section of this Comment reviews a selected number of these cases.

Comprehensive Environmental Response, Compensation, and Liability Act—Arranger Liability

[] Pneumo Abex Corp. v. High Point, Thomasville & Denton Railroad.124 In this Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)125 liability case, the Fourth Circuit held that railroad companies that sold used wheel bearings to a railroad parts foundry for conversion to new wheel bearings are not liable as arrangers under CERCLA § 107.126 The foundry operated from 1927 to 1978, during which time it accepted used wheel bearings from several contracting parties.127 The conversion process involved heating the used bearings to get rid of dirt, grease, and any impurities. This slag was then placed on a lot on the foundry's property.

After the foundry closed, the U.S. Environmental Protection Agency (EPA) tested the foundry's soil and found high levels of lead, zinc, copper, tin, and antimony.128 Thereafter, EPA designated the foundry as a Superfund site. During the cleanup, several parties cooperated with EPA, but the railroads in the instant case refused to contribute to response costs, asserting that they were not liable.129 As a result, the foundry's owners sued the railroads for contribution under CERCLA §§ 107 and 113. The district court dismissed the [29 ELR 10617] § 113 action as redundant and allocated liability under § 107. The railroads appealed.130

The Fourth Circuit first held that the railroad companies are not covered persons under CERCLA. The phrase "treatment of hazardous substances" as used in CERCLA refers to a party arranging for the processing of a discarded hazardous substance or processing resulting in the discard of a hazardous substance.131 Here, the conversion agreements between the railroad companies and the foundry were not transactions for disposal.132 Although the conversion process produced slag and dust, slag and dust would be produced even if virgin materials were used to make new bearings.133 The removal of contaminants was not the purpose of the transaction. Rather, the intent of both parties was that the wheel bearings would be reused in their entirety in the creation of new wheel bearings.134 Moreover, "the foundry paid the [railroads] for the bearings; the [railroads] did not pay the foundry to dispose of unwanted metal."135 Therefore, the railroads are not "covered persons" under CERCLA.

The court also held that on remand, after dismissal of the railroads, the apportionment of liability for the remaining parties should be governed by CERCLA § 113.136 The case before the district court involved entirely potentially responsible parties, and such parties must seek contribution under CERCLA § 113, not § 107.137

Federal Water Pollution Control Act—State Authority

[] Montana v. EPA.138 In this Federal Water Pollution Control Act (FWPCA)139 case, the Ninth Circuit upheld EPA's decision granting "treatment as state" (TAS) status under FWPCA § 518 to two Native American tribes to promulgate water quality standards (WQS) for all point sources within the boundaries of the Flathead Indian Reservation in Montana.140 The Ninth Circuit also upheld the district court's decision granting summary judgment to EPA and denying intervention to various intervenors because they lacked a discernible interest in the subject matter of the litigation.141

The Ninth Circuit first affirmed the district court's decision that EPA's regulations pursuant to which the tribes' TAS status was granted are valid as reflecting appropriate delineation and application of inherent tribal regulatory authority over nonconsenting nontribal members.142 Although EPA's scope of inherent tribal authority is a question of law for which EPA is not entitled to deference, EPA did not commit any material mistakes of law in its delineation of the scope of inherent tribal authority.143 "Rather, the Agency took a cautious view by incorporating both Justice White's and Justice Stevens' admonitions in Brendale [v. Confederated Tribes & Bands of the Yakima Indian Nation144] that, to support the exercise of inherent authority, the potential impact of regulated activities must be serious and substantial."145 EPA's decision found that the activities of the non-members posed such serious and substantial threats to tribal health and welfare that tribal regulation was essential. In addition, the court noted that its decision is consistent with City of Albuquerque v. Browner146 -the only other circuit opinion that has considered the issue of tribal authority to set WQS.147 In that case, a Native American tribe promulgated WQS more stringent than federal standards, and the court observed that the authority to establish such standards is in accord with powers inherent in tribal authority.148

The Ninth Circuit also held that the district court correctly denied the intervenors' application to intervene as of right. None of the proposed intervenors holds a national pollutant discharge elimination system (NPDES) permit that may be modified due to any change in WQS imposed by the tribes.149 Because the intervenors hold no NPDES permits, they cannot be subject to NPDES enforcement proceedings.150 Moreover, TAS status does not confer enforcement authority to the tribes; it only enables the tribes to set standards.151 And even assuming that EPA's approval of the tribal WQS program might affect property values, such a speculative and purely economic interest does not create a protectable interest in litigation concerning a statute that regulates environmental, not economic, interests.152

Clean Air Act

[] Clean Air Implementation Project v. EPA.153 In this Clean Air Act (CAA)154 case, the D.C. Circuit held that trade associations' action for judicial review of an EPA rule permitting the use of "any credible evidence" to prove or disprove CAA violations is not ripe for review. In the rulemaking at issue, EPA added language to five CAA regulations, providing that nothing shall preclude the use of credible evidence relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed.155 The trade associations argued that EPA promulgated [29 ELR 10618] the rule without statutory authority, that EPA failed to comply with proper rulemaking procedures, and that EPA violated the CAA by forcing states to rewrite their implementation plans.156 The heart of the associations' argument was that the credible evidence rule, by altering the means of determining compliance for the new source performance standards and the hazardous air pollutant standards, increased the stringency of the underlying standards without undergoing proper rulemaking.157

The D.C. Circuit first held unripe the associations' contention that any change in the compliance method or test is substantive. Neither element of the Abbott Laboratories v. Gardner158 inquiry—fitness for judicial decision and hardship of denying relief—was satisfied.159 EPA's credible evidence rule is final, but in contending that the rule alters the standards, the associations have raised issues that are not purely legal.160 Given the universe of all possible evidence that might be considered "credible," it is impossible to decide what impact the role will have on existing standards.161 The rule must be applied before the court can determine its impact. Moreover, the associations cannot point to any great hardship they would suffer by the court's deferring judicial review, as the rule does not require them to engage in, or to refrain from, any conduct.162

The court also held unripe the associations' contention that the credible evidence rule illegally converts periodic standards to continuous ones. EPA pointed to provisions of the CAA and its implementing regulations that seem to support the view that compliance is required continuously, not periodically.163 Still, the effect of the credible evidence rule on compliance obligations is difficult to assess without any information or experience showing how the rule operates in particular settings.164 Because the merits of the associations' first two contentions were not justiciable, the court did not reach their related assertion that the CAA Amendments of 1990 provide no basis for promulgating the credible evidence rule. The need for statutory authority depends in the first instance on what it is that the credible evidence rule really accomplishes.165

The court also held that it could not decide the associations' claim that the credible evidence additions to the state implementation plan regulations set forth at 40 C.F.R. parts 51 and 52 illegally invade the authority of states under the CAA. Nothing in the amended regulations requires states to change their implementation plans.166 Even if the revised regulations forced the states to submit new plans, the court would find the associations' challenge unripe. Although the question of whether EPA had statutory authority is a purely legal one, the effect of the credible evidence rule on the associations is highly uncertain.167

The court further held unripe an intervenor's claim that EPA unlawfully attempted to revise the permit shield regulations in promulgating the credible evidence rule. However, the intervenor's argument was based on language contained in the preamble to the credible evidence rule. The rule did not change any language in the regulations implementing the operating permit program, and the court was doubtful that the preamble alone was definite and specific enough to be a binding statement of Agency policy.168

Endangered Species Act—Incidental Take Permit

[] Loggerhead Turtle v. County Council of Volusia County, Florida.169 In one of the few Endangered Species Act (ESA)170 cases docketed, the Eleventh Circuit held that a Florida county's ESA § 10 incidental take permit does not authorize it to take protected sea turtles through purely mitigatory measures associated with artificial beachfront lighting. The loggerhead sea turtle and green sea turtle were listed as threatened and endangered, respectively, in 1978.171 The female sea turtles deposit eggs on the beach in the spring, and several months later, the hatchlings break their shells and instinctively crawl toward the brightest light on the horizon.172 The underlying controversy in this case arose from allegations that the county's alleged refusal to ban beach driving during sea turtle nesting season and its alleged refusal to ban artificial beachfront lighting sources violated the ESA's take provision.173 In 1995, individuals brought suit under the ESA seeking declaratory, permanent injunctive, and preliminary injunctive relief. After an initial hearing, the district court granted the individuals' motion for a preliminary injunction concerning the beach driving, but denied the preliminary injunction motion concerning the artificial beachfront lighting.174 Then, on the county's motion for summary judgment, the district court held that the individuals did not have standing to challenge the lighting restrictions. Subsequently, the county received an incidental take permit, and the district court lifted the preliminary injunction and dismissed the case.175

On appeal, the Eleventh Circuit first held that the county lacked the U.S. Fish and Wildlife Service's (FWS') express permission to take sea turtles incidentally through artificial beachfront lighting. The 11 types of incidental take in the county's incidental take permit relate only to vehicular access on the county's beaches.176 None of the 11 listed activities concerns artificial beachfront lighting.177 A brief section in the mitigation measures portion of the incidental take permit [29 ELR 10619] mentions artificial beachfront lighting, but it does not contain any language expressly authorizing takes of sea turtles through artificial lighting.178 Given the permit's structure, if the county was authorized to take sea turtles through artificial lighting, the express authority to do so would have been memorialized with the other approved activities.179

The court next held the FWS' express conditioning of the incidental take permit on the county's implementation of detailed lighting-related mitigatory measures did not impliedly permit the county to take sea turtles. The incidental take exception does not apply to and, thus, does not except from liability an activity performed as a purely mitigatory measure.180 Moreover, the ESA's text and the FWS' regulations provide every indication that incidental take permissions must be express and activity-specific.181 And the county's application sought an incidental take permit for vehicle beach access and addressed lighting only as a mitigating factor.182 Thus, the district court erred in dismissing the individuals' claims that artificial beachfront lighting takes sea turtles.

The court then held that the individuals have standing to sue the county for inadequate regulation of lighting-related harm in four nonparty municipalities. The county possesses primary authority to regulate artificial beachfront lighting countywide, and it has the authority to establish minimum standards for the protection of the environment that apply within all areas of the county.183 That the two municipalities subject to the minimum standards have the supplemental authority to enact more onerous lighting standards, and the two municipalities exempt from the minimum standards could decide to enact some lighting standards, does not sever the fairly traceable connection betweenthe county's regulatory actions and the plaintiffs' alleged harm.184 However, because the county does not possess any control over the actual, day-to-day enforcement measures that the municipalities subject to the standards employ, the plaintiffs lack standing to hold the county responsible for inadequate enforcement efforts in those two municipalities.185 In addition, the plaintiffs' alleged harm by the nonparty municipalities can be constitutionally redressed through relief that respects the county's control over the municipalities.186 If the district court were to grant the requested relief, fewer protected sea turtles would be harmed through misorientation.187 And the county's compliance with the ESA can be achieved without violating the separation of powers doctrine.188

The court also held that the district court's denial of the individuals' motion for leave to amend the original complaint to include the leatherback sea turtle fell outside the permissible range of discretion. The district court erroneously concluded that the plaintiffs failed to invoke subject matter jurisdiction.189 The factual premise to that conclusion—that a copy of their notice of intent to sue letter was not on file with the court—was false, and the letter provided notice sufficient to afford the county the opportunity to rectify the asserted ESA violations.190 Similarly, the district court's second basis for denial, the plaintiffs' undue delay, was flawed. The plaintiffs filed their leave to amend within the time period prescribed in the district court's scheduling order.191 At most, their failure to request leave sooner supports a finding of delay not undue delay.192 And the district court's final basis for denying leave, prejudice to the county, constituted anything but a substantial reason to deny leave to amend because the plaintiffs never requested the preliminary relief for the leatherback turtle on which the district court based its conclusion of prejudice.193 Therefore, the leatherback sea turtle must be included in further proceedings on remand.

Animal Welfare Act—Standing

[] Animal Legal Defense Fund v. Glickman.194 The constantly evolving standing doctrine was at issue in this Animal Welfare Act (AWA)195 case in which the D.C. Circuit held that an individual who suffered aesthetic injuries while observing captive animals living under inhumane conditions at a zoo has standing to challenge U.S. Department of Agriculture (USDA) regulations as violating the AWA. The AWA requires the USDA to promulgate regulations governing the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors, with minimum requirements for a physical environment that is adequate to promote the psychological well-being of primates.196 Three individuals challenged the USDA's regulations on the ground that the regulations violated the AWA's mandate by permitting dealers, exhibitors, and research facilities to keep primates under inhumane conditions.197 The individuals alleged that they suffered aesthetic injury during their regular visits to zoos when they observed primates living under inhumane conditions.

The D.C. Circuit first held that the individuals' lacked standing to challenge the regulations.198 The court then vacated that judgment and granted rehearing en banc.

On rehearing, the D.C. Circuit held that the individual's199 allegations solidly established injury-in-fact.200 The Supreme Court has repeatedly made it clear that injury to an aesthetic interest in the observation of animals is sufficient [29 ELR 10620] to satisfy the demands of Article III standing.201 Here, the individual made it clear that he has an aesthetic interest in seeing exotic animals living in a nurturing habitat, and that he has attempted to exercise this interest by repeatedly visiting a particular exhibit to observe particular animals.202 The individual further claimed that this interest was injured when he witnessed the actual living conditions of the primates.203 Thus, during his visits to the exhibition, he suffered direct, concrete, and particularized injury to his aesthetic interest in observing animals living under humane conditions.204

The court next held that the individual's allegations satisfied the causation prong of Article III standing. The individual alleged that the USDA failed to adopt the specific, minimum standards to govern the humane treatment of primates that AWA § 2143 requires.205 He further described how the conditions that caused him injury complied with current USDA regulations, and alleged that regulations complying with the AWA would have prohibited those conditions and protected him from the injuries that his affidavit recounts.206

The court also held that the individual satisfied the redressibility element of constitutional standing. More stringent regulations, which prohibit the inhumane conditions that have consistently caused the individual aesthetic injury in the past, would necessarily alleviate his aesthetic injury during his planned, future trips to the zoo.207 And tougher regulations would either allow the individual to visit a more humane zoo or, if the zoo decided to close rather than comply with the more stringent regulations, allow him to visit the animals at a new zoo that complies with the AWA.208 Thus, the individual met all three requirements for Article III standing.

Last, the D.C. Circuit held that the individual's alleged injury falls within the zone of interests protected under the AWA's provisions on animal exhibitions. His interests are among those that Congress sought to benefit through the AWA, and he certainly is one of the individuals who, in practice, can be expected to police the interests that the statute protects.209

Dissenting judges would have held that the individual does not have standing. They believe that the majority's ruling is a departure from existing aesthetic injury jurisprudence and an unwarranted erosion of the standards for constitutional standing.210 Even if they shared the majority's view with respect to injury-in-fact, the dissenting judges would have held that the individual failed to establish causation.211

Commerce Clause—Solid Waste Management

[] National Solid Waste Management Ass'n v. Williams.212 As the dilemma concerning solid waste disposal grows, states are increasingly subjected to U.S. Commerce Clause challenges to their waste management statutes. In the National Solid Waste Management Ass'n case, the Eighth Circuit held that a Minnesota statute requiring public entities to comply with county waste management plans does not violate the federal Commerce Clause.213 Minnesota's waste management statute requires counties to implement waste management plans and then requires public entities to manage solid waste in compliance with the relevant county plan.214 The statute also sets forth specific requirements for public entities wishing to act contrary to a county plan.215 In response to the statute, a waste management association filed suit alleging that the statute violates the Commerce Clause. A district court granted summary judgment to the state.

On appeal, the Eighth Circuit first held that the association does not have standing to challenge the statute as it applies to public entities who wish to act contrary to a county plan.216 The association's members are contractors, and contractors are not listed in the definition of "public entities" under the terms of this provision, as they are under the terms of the other challenged provision.217 In addition, the association is not arguing on behalf of a public entity. Therefore, this portion of the statute imposes no obligations on the association's members and cannot cause any injury-in-fact.218

The court then holds that the provision requiring public entities to comply with county waste management plans does not violate the federal Commerce Clause. In this case, the state is performing as a market participant in directing the purchasing behavior of local government units.219 All of the public entities covered by the challenged provision are creations of the state and derive their power solely from the state.220 Thus, the public entities should not be considered independent from the state when they contract for waste removal. Because the state's actions under the statute are as part of its role as a purchaser of waste disposal services, it is a mere market participant, and the Commerce Clause does not apply.221

[29 ELR 10621]

Products Liability—Duty to Warn

[] Akin v. Ashland Chemical Co.222 In this case, the Tenth Circuit held that a chemical manufacturer had no duty to warn the U.S. Air Force or its employees of the potential hazards of chemicals used to clean aircraft engines at the Tinker Air Force base in Oklahoma City, Oklahoma. The court first held that the manufacturer properly removed the case to federal court. Personal injury actions that arise from incidents occurring in federal enclaves may be removed to federal district court as a part of federal question jurisdiction.223 And there is no dispute that the Air Force base at issue is a federal enclave.224 In addition, the manufacturer properly removed the case without the consent of co-defendants based on its status as a person acting under a federal officer. This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants.225 The court further held that the manufacturer's removal was not untimely. The initial pleading in the case was ambiguous in that it did not provide unequivocal notice of the right to remove, and the first clear notice of removability was given in answer to an interrogatory.226 Moreover, the plaintiffs' assertion of a cause of action in federal court amounted to a waiver of alleged defective removal.227

Turning to the merits of the case, the court then held that under Oklahoma law, the manufacturer did not have a duty to warn the Air Force of the potential danger of low-level chemical exposure.228

Under Oklahoma law, the general rule applies that chemicals will be considered defective only if the following three elements are satisfied: (1) the product was unreasonably dangerous; (2) there was a failure to warn of its dangerous characteristics; and (3) the failure to warn was the cause of the plaintiff's injury.229

Oklahoma law, however, has an exception to this rule—there is no duty to warn members of a profession against dangers generally known to members of that profession.230 Because of the wealth of research available, the ability of the Air Force to conduct studies, and its extremely knowledgeable staff, the Air Force easily qualifies as a knowledgeable purchaser that should have known the risks involved with low-level chemical exposure.231 Employees of the Air Force are also deemed to possess this necessary level of sophistication.232

Temporary Taking

[] Landgate, Inc. v. California Coastal Commission.233 In this case, the California Supreme Court held that a delay in the issuance of a development permit partly owing to the mistaken assertion of jurisdiction by the state coastal commission does not constitute a temporary taking. The coastal commission originally denied the landowners' application for building permits due in part to the commission's erroneous assertion of jurisdiction over the county's previous reconfiguration of the landowners' lot boundaries.234 The commission denied approval of the county's lot line adjustment, thereby denying the landowners' development application.235 After a failed attempt to seek reconsideration, the landowners sought compensation from the commission for a temporary taking of their property. The trial court ruled that the commission had temporarily taken the landowners' property over a two-year period and awarded the landowners takings damages of $ 155,657.236 The appeals court affirmed the trial court.

On the commission's subsequent appeal to the California Supreme Court, the court first held that an error by a governmental agency in the development approval process does not necessarily amount to a taking even if the error in some way diminishes the value of the subject property.237 The mistaken assertion of jurisdiction over a development is part of the development approval process, and development delays that result therefrom may be imposed on the developer rather than the general taxpayer without violating the U.S. Constitution.238

The court next held that the appeals court erred in attempting to discern the true motive for the commission's decision to deny the landowners' development permit.239 The proper inquiry is not into the subjective motive of the government agency, but rather whether the development restrictions imposed on the subject property substantially advanced some legitimate state purposes so as to justify the denial of the development permit.240 This type of objectivity is consistent with the principle that courts do not delve into the individual purposes of decisionmakers in a quasi-judicial proceeding, but instead look at the decisionmakers' findings to determine whether they are based on substantial evidence.241

The court then held that the commission's denial of the permit advanced legitimate governmental interests. The commission was concerned that the house, which would rise 44 feet above the natural grade and 9 feet above the maximum [29 ELR 10622] allowable height in the Malibu land use plan, would be unsightly when viewed from nearby hiking trails and waterfalls.242 The commission also was concerned about the potential runoff and erosion from excessive grading.243 Further, the commission was concerned about the potential intensification of environmental impacts from the improper lot line adjustment.244 These concerns advance the legitimate governmental interests in minimizing erosion and unsightly coastal development.245

The court further held that nothing in the record establishes that the commission was motivated in its decisions by a jurisdictional argument with the county. There is no inconsistency between the commission's environmental concerns and the respective positions it adopted throughout the development approval process.246 Moreover, the commission's conclusion, following the attorney general's advice that a coastal zoning code gave it authority to deny the lot line adjustment, was supported by a plausible though perhaps erroneous legal argument and, therefore, is not the basis of a taking.247

The court also held that the commission's rejection of the property owner's development was at most conditional—nothing in the record suggests that the agency would have denied a development that fell within legally recognized, and environmentally more favorable, boundaries.248 Last, the court held that the postponement of the property owner's development did not constitute a temporary taking of property as that doctrine was conceived in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles.249 Nothing in First English is inconsistent with the recognition that a judicial determination of the validity of certain preconditions to development is a normal part of the development process, and the fact that a developer must resort to such a determination does not constitute a per se temporary taking.250

The dissenting judges would have held that under First English the commission must pay compensation for the temporary taking that occurred while its total ban on development of the property was in effect.251

Preliminary Injunction—Mootness

[] Knaust v. City of Kingston.252 In Knaust, the Second Circuit held moot property owners appeal of a district court's denial of their motion for a preliminary injunction to enjoin federal funding and construction of a proposed business park. The property owners claimed that the business park posed an imminent threat to the environment and that the park's stormwater system would contaminate a subterranean water source on their property and, thus, interfere with their proposed commercial mushroom farm.253 The property owners' complaint alleged National Environmental Policy Act254 violations by the U.S. Department of Commerce, a Coastal Zone Management Act255 violation by the Department of Commerce, 42 U.S.C. § 1983 and New York environmental law claims against the city of Kingston, and common-law nuisance claims against all defendants.256 The district court denied the property owners' request for a temporary restraining order and, subsequently, denied their motions for a preliminary injunction and for summary judgment.257 During the time period between the filing of the motions and their disposition, construction of the business park's infrastructure was completed and all federal funds for the project were disbursed.258

On appeal, the Second Circuit first held that the property owners' claim was moot. The park was already constructed, the final disbursement of federal funds had been made, and no applications for additional federal financing were pending.259 Thus, the court lacked appellate jurisdiction to hear the case.

The court also held that the property owners' claim was not capable of repetition, yet evading review. The elapsed time that gave rise to mootness was simply a product of an extended delay before the district court ruled, not some inherent limitation on the time interval between the receipt of a grant award and the disbursement of funds that would inhibit judicial review.260 Further, the property owners will unlikely confront any similar situation in the future.261 The court noted, however, that while court calendar management is difficult, district court judges must decide preliminary motions promptly.262

Native Americans—Treaty Rights

[] United States v. Washington.263 While the Supreme Court has addressed the fishing clause of the Stevens Treaties several times, it chose not to grant review in this case. Here, the Ninth Circuit held that except as expressly limited by the Stevens Treaties' shellfish proviso, the treaties grant several Native American tribes the right to take shellfish found anywhere within the tribes' usual and accustomed fishing areas. Several tribes sought a declaration of their rights to shellfish as negotiated in 1855 under the Stevens Treaties.264 The [29 ELR 10623] treaties contained a shellfish proviso that prohibited the tribes from taking shellfish from any beds staked or cultivated by citizens.265 The district court concluded that the tribes have a right to take one-half of the harvestable shellfish of every species found within their usual and accustomed fishing areas, except as expressly limited by the shellfish proviso.266 The district court interpreted the proviso only to exclude the tribes from artificial or planted shellfish beds.267 Private tideland property owners, commercial shellfish growers, and the state of Washington appealed the district court's judgment.

On appeal, the Ninth Circuit first held that the district court properly concluded that the Stevens Treaties grant the tribes a right to take shellfish found anywhere within the tribes' usual and accustomed fishing areas, except as expressly limited by the shellfish proviso. The tribes' shellfish rights are not limited by species, as this conclusion would be plainly inconsistent with the language of the treaties, the law of the case, and the intent and understanding of the signatory parties.268 In addition, the tribes' usual and accustomed grounds and stations do not vary by species of fish.269 Courts considering fishing disputes under the treaties have never required species-specific findings of usual and accustomed fishing grounds.270 Further, the equal footing doctrine does not preclude tribal harvesting on tidelands. The treaties must be construed as a reservation of rights by the tribes, not a granting of rights by the United States.271 The language of the treaties, the law of this case, and the Supreme Court's prior applications of the doctrine also preclude its application here.272 The tribes also may harvest shellfish on privately owned tidelands. The Supreme Court consistently has rejected arguments to the effect that Native American treaties reserve to Native Americans no more fishing rights than those enjoyed by non-Native American citizens.273 Regardless of whether shellfish were a private or public resource at treaty time, or today, the Stevens Treaties represent the supreme law of the land and secure the tribes' right to fish at their usual and accustomed grounds without regard to the public or private nature of their ownership.274

The court next held that the district court properly interpreted the meaning of the shellfish proviso as only excluding the tribes from artificial or planted shellfish beds. In fact, the court adopted the district court's analysis as its own. The court further noted that the commercial growers', the private owners', and Washington's interpretations of the shellfish proviso are not based on the common understanding of the phrase "beds staked or cultivated" within the context of the shellfishing industry at treaty time, are totally inconsistent with U.S. avowed intention to preserve for the Native Americans their ancient fisheries, and cast aside black-letter canons of statutory construction and treaty interpretation.275

The court also held that the district court correctly rejected the commercial growers' affirmative defenses. Neither laches nor estoppel is available to defeat Native American treaty rights.276

The court, however, then held that the district court impermissibly employed equitable powers to rewrite the treaties' terms. The district court improperly limited the tribes' right to take shellfish from the growers' shellfish beds by applying notions of equity to redefine the term "cultivate."277 The district court should have used its equitable powers only to limit the take of the tribe, not the location, so as to avoid any unjust enrichment.278 In addition, the district court improperly allocated to the tribes a 50-percent share of shellfish from the commercial growers' beds. The district court should have used equitable principles to limit the tribes' shellfish harvest from the growers' beds to a fair share.279 It would contravene notions of fairness if the tribes were permitted to take 50 percent of the grower's enhanced harvest.280 Many of the growers have spent decades developing and enhancing production on their shellfish beds.281 The court therefore held that only those growers' beds that exist solely by virtue of the natural propagation of the species are subject to the full 50-percent harvest allocation. Growers have the burden of proving preenhancement harvest versus postenhancement harvest.282

The court next held that the district court erroneously concluded that the term "citizen" in the shellfish proviso includes the state of Washington. The district court improperly invoked equitable principles in its interpretation of the treaties, and there is no support in law for this conclusion.283 The court also held that the district court committed clear error in finding that 0.5 pounds of mature clams per square foot is the minimum density necessary to establish a natural bed. There is insufficient evidence in the record to support this finding.284 The court then held that the district court did not abuse its discretion by requiring the tribes to prove the unavailability of other forms of access to shellfishing areas before allowing them to cross private uplands. Rather than completely eliminating the tribe's rights to cross private lands, the district court engaged in a careful balancing of hardships in fashioning its remedy.285 The court further held that the district court did not abuse its discretion in imposing time, place, and manner restrictions on the tribes' ability to harvest shellfish when the right is exercised on the commercial growers' or private owners' property. The restrictions safeguard the tribes' right of access to the ancient fisheries while protecting the interests of the growers and private [29 ELR 10624] owners.286 The court then held that the district court's procedures of randomly selecting a special master to hear each dispute from a panel of four denied due process, because three of the four special masters are adverse to the tribes.287 The court also held that the district court did not err in authorizing a special master to award damages against individual tribal members, but it vacated a provision allowing damages against the tribes.288 Last, the court held that the district court did not err in denying the tribes attorneys fees, as the request is foreclosed by case law.289

Looking Ahead to the 1999-2000 Term

While the 1998-1999 Term did not include a notable amount of activity in the environmental field, at this early stage, the 1999-2000 Term looks to be more auspicious. By June 23, 1999, the last day of the 1998-1999 Term, the Court had granted review for the 1999-2000 Term in three environmental or environmentally related cases.290

The most contentious case set for argument in the 1999-2000 Term thus far is the Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc. case.291 With the standing doctrine suffering ever greater restrictions, the Laidlaw case possibly implicates the future of citizen representation in the courts. By affirming the Laidlaw decision and propagating Justice Scalia's restrictive view of environmental standing, the Court could very well be sounding the death knell of citizen suits. A reversal of Laidlaw, however, would give environmental plaintiffs a brief respite from the increasing difficulty of establishing a viable challenge to an environmental violation.

The other two cases that were granted review involve the application of the False Claims Act to states and whether a state court decision should be applied retroactively to a waste disposal company owner who was convicted of operating a hazardous waste facility without a permit. The following sections detail the three cases that have been granted review thus far for the 1999-2000 Term.


[] Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc.292 In a very controversial decision, the Fourth Circuit vacated on mootness grounds a district court award of civil penalties in environmental groups' citizen suit against a company for FWPCA NPDES violations. The groups sought monetary penalties, declaratory and injunctive relief, and attorneys fees and costs.293 Following a bench trial, the district court found the company liable for numerous permit violations and imposed a $ 405,800 penalty on the company.294 It further found, however, that the company's violations did not harm the environment and that the company had been in compliance for several years.295 Therefore, the district court denied the groups' request for declaratory and injunctive relief.296

The groups subsequently appealed as inadequate the district court's penalty determination, but did not appeal the district court's denial of declaratory and injunctive relief. On appeal, the Fourth Circuit held that the groups failed the redressability requirement of Article III standing. Because the groups did not appeal the denial of declaratory and injunctive relief, the only potential relief that may be available to redress their claimed injuries is a civil penalty that would be paid to the U.S. Treasury.297 Pursuant to Steel Co. v. Citizens for a Better Environment,298 the action is moot because civil penalties payable to the government would not redress any injury the groups have suffered.299 The Supreme Court in Steel Co. noted that

although a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, that a wrongdoer gets his just deserts, or that the nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.300

Solid Waste—Retroactivity

[] Fiore v. White.301 The Third Circuit held that the Constitution does not mandate retroactive application of a Pennsylvania Supreme Court decision to a waste disposal company operator who was convicted under state law for operating a hazardous waste facility without a permit. The waste facility operator and a co-defendant employee were convicted for violating the Pennsylvania Solid Waste Management Act on the theory that the facility's monitoring system was so altered that it significantly departed from the issued permit.302 The basis of the state's charges against the operator and employee was that they were operating a hazardous waste facility without a permit—a second degree felony.303

Although the operator exhausted his direct appeals, the employee was successful in overturning his conviction when the Pennsylvania Supreme Court held that the employee [29 ELR 10625] could not be convicted of operating the facility without a permit because the facility actually had a permit.304 The Pennsylvania Supreme Court held that the employee should have been charged with violating the permit—a first degree felony.305 Following the Pennsylvania Supreme Court's decision, the operator sought extraordinary relief in the Pennsylvania courts, but was denied.306 Thereafter, the district court granted the operator's writ of habeas corpus through retroactive application of the Pennsylvania Supreme Court's decision in the employee's case.307 The state appealed.

On appeal, the Third Circuit first held that the Due Process Clause does not require a retroactive application of the employee's case. The Supreme Court has held that the federal constitution has no voice on the subject of retroactivity.308 In addition, state courts are under no constitutional obligation to apply their own criminal decisions retroactively.309 Further, the Third Circuit has refused to require application of new state decisions in habeas proceedings.310

The court also held that the Equal Protection Clause does not require the employee's case to be retroactively applied to the operator's case. Although the Supreme Court has recognized that the principle of treating similarly situated defendants the same should be considered in shaping federal retroactivity rules, the Court has never tied the application of this principle to the Equal Protection Clause.311 Because neither the Due Process nor Equal Protection Clauses mandate retroactive application to this case, the Third Circuit reversed the lower court's grant of habeas corpus.

Sovereign Immunity

[] United States v. Vermont Agency of Natural Resources.312 In this sovereign immunity case, the Court will have the opportunity to reconcile a federal circuit split over whether states are subject to False Claims Act (FCA)313 suits. Here, the Second Circuit held that states are "persons" within the meaning of the FCA and, thus, are subject to suits under the Act. An employee of a state environmental agency brought this qui tam suit under the FCA, alleging that the agency made fraudulent claims concerning federal grants under the FWPCA and the Safe Drinking Water Act.314 The grants funded the agency's water supply division. In his complaint, the employee alleged that the agency knowingly submitted false claims to EPA for salary and wage expenses of employees purportedly working on federally funded projects.315 The complaint further alleged that the employees were not actually working the number of hours on the timesheets, but that the agency would instruct the employees to fill out timesheets reflecting a specified number of hours regardless of the time actually worked.316 The false claims would allow the agency to receive funds to which it was not entitled. The district court denied the state's motion to dismiss and rejected the state's sovereign immunity argument.

On appeal, the Second Circuit court first held that qui tam suits are, in essence, suits by the United States and, hence, cannot not barred by the Eleventh Amendment.317 The real party in interest in a qui tam suit is the United States because qui tam claims are designed to remedy only wrongs done to the United States.318 If there is no injury to the United States, a qui tam plaintiff cannot recover.319 Further, the United States has the right to control the action.320

The court next rejected the state's contention that the court should apply the plain statement rule and decline to construe the FCA as exposing states to liability absent the clearest of legislative statements by Congress.321 The FCA contains no alteration of the usual constitutional balance of federal and state powers such as to require applying the plain statement rule.322 Moreover, the FCA does not intrude into any area of traditional state power; the goal of the Act is simply to remedy and deter procurement of federal funds by means of fraud.323

The court then held that the term "person" in the FCA includes states. The term person is used in the FCA to categorize both those who may sue and those who may be sued.324 In a number of instances, states have brought suits under the FCA as qui tam plaintiffs, clearly indicating that they viewed themselves as persons under § 3730(b)(1).325 Moreover, an amendment to the FCA for joinder of claims of a state must have been premised on the view that the state may be the qui tam plaintiff.326 And there is nothing in the language of the FCA or its legislative history to indicate that Congress intended that states would be persons for purposes of bringing qui tam suits, but not for purposes of being subject to qui tam suits.327 Accordingly, the qui tam suit filed against the state environmental agency for allegedly submitting false monetary claims to EPA is authorized by the FCA.328

[29 ELR 10626]

A dissenting judge would have held that the qui tam suit is barred by the Eleventh Amendment. In an extensive dissent, the judge argued that the majority decision distorts the dynamics of our federal system, denigrates the traditional role of members of Congress as bridges between their state communities and the Executive Branch, and undermines cooperative relationships between federal and state agencies.


There were various distractions for the Court to handle in the 1998-1999 Term. Nevertheless, the Court handed down some significant environmental and environmentally related decisions. The Daubert standard for admitting expert testimony was refined, as was takings jurisprudence. The Court also decided a few Native American natural resource issues and struck down an asbestos settlement agreement.

Given the controversy surrounding the Laidlaw case, the 1999-2000 Term should prove to be even more significant for environmental law. And although it remains uncertain what other cases the Court will hear in the 1990-2000 Term, the Court undoubtedly will continue to shape the future of environmental law.

1. See Tony Mauro, Rehnquist Compartmentalizes, LEGAL TIMES, Jan. 18, 1999, at 8.

2. Chief Justice Salmon P. Chase presided over Andrew Johnson's Senate trial.

3. Moreover, the Court only issued 75 signed opinions and had the earliest finish date—June 23—in 30 years. See Tony Mauro, No More Dawdling: Rehnquist Takes Control of Supreme Court Docket, LEGAL TIMES, July 5, 1999, at 7.

4. See Tony Mauro, Breyer's "I" Scream, LEGAL TIMES, Apr. 26, 1999, at 1.

5. There were other decisions, such as Alden v. Maine, 119 S. Ct. 2240 (1999), that may impact environmental law, but those decisions are not covered in this Comment.

6. See Kumho Tire Co. v. Carmichael, 118 S. Ct. 1167, 29 ELR 20638 (1999) (refining Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993)).

7. See Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 29 ELR 20557 (1999); El Paso Natural Gas Co. v. Neztsosie, 119 S. Ct. 1430, 29 ELR 21099 (1999); and Amoco Production Co. v. Southern Ute Indian Tribe, 119 S. Ct. 1719, 29 ELR 21274 (1999).

8. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 29 ELR 21133 (1999).

9. Ortiz v. Fibreboard Corp., 119 S. Ct. 2295 (1999).

10. For summaries of all the Court's actions during the 1998-1999 Term, see "In the Supreme Court" at 28 ELR 10533 (Sept. 1998); 28 ELR 10599 (Oct. 1998); 28 ELR 10679 (Nov. 1998); 28 ELR 10745 (Dec. 1998); 29 ELR 10045 (Jan. 1999); 29 ELR 10108 (Feb. 1999); 29 ELR 10165 (Mar. 1999); 29 ELR 10224 (Apr. 1999); 29 ELR 10278 (May 1999); 29 ELR 10374 (June 1999); 29 ELR 10439 (July 1999); and 29 ELR 10496 (Aug. 1999).

11. Instead, the six cases decided involve expert testimony; takings; the Price-Anderson Act; Native American hunting, fishing, and gathering rights; the Coal Lands Acts; and class action certification.

12. 118 S. Ct. 1167, 29 ELR 20638 (1999).

13. 509 U.S. 579, 23 ELR 20979 (1993).

14. See Kumho Tire, 118 S. Ct. at 1171, 29 ELR at 20639.

15. See id.

16. See Carmichael v. Samyang Tire, Inc., 923 F. Supp. 1514 (S.D. Ala. 1996).

17. See id. at 1520. The district court considered various Daubert factors, such as whether the analysis was subject to peer review, the known or potential rate of error, and the degree of acceptance within the relevant scientific community. See id.

18. See Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1435-36 (11th Cir. 1997).

19. See Kumho Tire, 118 S. Ct. at 1174, 29 ELR at 20640.

20. The rule states that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702.

21. See Kumho Tire, 118 S. Ct. at 1174, 29 ELR at 20640.

22. Such factors include whether a theory or technique has been tested, whether a theory or technique has been subjected to peer review, whether there is a high known or potential rate of error, and whether a theory or technique enjoys general acceptance within a relevant scientific community. See id. at 1175, 29 ELR at 20640 (citing Daubert, 509 U.S. at 592-94, 23 ELR at 20980-83.

23. See Kumho Tire, 118 S. Ct. at 1176, 29 ELR at 20641.

24. See id. at 1177, 29 ELR at 20641.

25. See id. at 1179, 29 ELR at 20642.

26. See id.

27. See id.

28. 119 S. Ct. 1624. 29 ELR 21133 (1999).

29. The developer, Del Monte Dunes, endured 5 years, 5 formal decisions, and 19 different site plans in its effort to develop the property. With each proposal, Del Monte Dunes devoted more of the property to public open space and public and private streets, including public parking and access to the beach.

30. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990).

31. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 27 ELR 20139 (9th Cir. 1996).

32. 119 S. Ct. at 1635, 29 ELR at 21135.

33. 512 U.S. 374, 24 ELR 21083 (1994).

34. See 119 S. Ct. at 1635, 29 ELR at 21135.

35. See id.

36. See id.

37. See id. at 1635, 29 ELR at 21136.

38. See id. at 1636, 29 ELR at 21136 (citing, among others, Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992); and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985)).

39. See 119 S. Ct. at 1637, 29 ELR at 21136.

40. See id.

41. See id.

42. See id.

43. See id. at 1637, 29 ELR at 21136-37.

44. See id. at 1638, 29 ELR at 21137.

45. See id. (quoting Curtis v. Loether, 415 U.S. 189, 195-96 (1974)).

46. 119 S. Ct. at 1638, 29 ELR at 21137.

47. See id. at 1643, 29 ELR at 21139.

48. See id.

49. See id. at 1644, 29 ELR at 21139.

50. See id. at 1645, 29 ELR at 21140.

51. See id. at 1650, 29 ELR at 21142.

52. See id.

53. 119 S. Ct. 1187, 29 ELR 20557 (1999).

54. Usufruct means "the right to utilize and enjoy the profits and advantages of something belonging to another so long as the property is not damaged or altered in any way." THE AMERICAN HERITAGE DICTIONARY 1331 (2d ed. 1985).

55. See 119 S. Ct. at 1195-96, 29 ELR at 20560.

56. See Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 918, 28 ELR 20183, 20188 (8th Cir. 1997).

57. See id. at 921, 28 ELR at 20189.

58. See id. at 929, 28 ELR at 20192.

59. See Mille Lacs, 119 S. Ct. at 1199, 29 ELR at 20562.

60. See id. at 1197, 29 ELR at 20561.

61. See id. at 1198, 29 ELR at 20561.

62. Id.

63. See id. at 1203, 29 ELR at 20563.

64. See id. at 1200, 29 ELR at 20562.

65. See id. at 1202, 29 ELR at 20563.

66. 473 U.S. 753 (1985) (holding that an agreement relinquished a tribe's usufructuary rights to land reserved in an earlier treaty).

67. See 119 S. Ct. at 1203, 29 ELR at 20563.

68. See id. at 1206, 29 ELR at 20565.

69. See id. at 1204, 29 ELR at 20564.

70. See id.

71. See id. at 1205, 29 ELR at 20564.

72. See id.

73. See id. at 1206, 29 ELR at 20565.

74. See id. at 1207, 29 ELR at 20565.

75. See id. at 1210, 29 ELR at 20566-67.

76. See id. at 1211, 29 ELR at 20567.

77. See id. at 1212, 29 ELR at 20567.

78. See id. at 1215, 29 ELR at 20569.

79. 119 S. Ct. 1430, 29 ELR 21099 (1999).

80. 42 U.S.C. § 2210. See 119 S. Ct. at 1439, 29 ELR at 21102.

81. Neztsosie, 119 S. Ct. at 1434, 29 ELR at 21100.

82. See id.

83. See id.

84. See id.

85. See id.

86. See id.

87. See id.

88. See id.

89. See id.

90. See id.

91. See id.

92. See id. at 1435, 29 ELR at 21101.

93. Id.

94. See id. at 1437, 29 ELR at 21101.

95. See id. at 1438, 29 ELR at 21102.

96. See id.

97. See id. at 1439, 29 ELR at 21102.

98. 119 S. Ct. 2295 (1999).

99. The manufacturer faced not only battles over personal injury claims, but also battles against insurers to pay the personal injury claims.

100. All but $ 500,000 of the manufacturer's $ 10 million contribution came from other insurance proceeds. See 119 S. Ct. at 2304.

101. The class consisted of

all persons with personal injury claims against Fibreboard for asbestos exposure who had not yet brought suit or settled their claims before the previous August 27; those who had dismissed such a claim but retained the right to bring a future action against Fibreboard; and "past, present and future spouses, parents, children, and other relatives" of class members that were exposed to the manufacturer's asbestos.

Id. at 2305.

102. As part of the agreement,

claimants seeking compensation would be required to try to settle with the trust. If initial settlement attempts failed, claimants would have to proceed to mediation, arbitration, and a mandatory settlement conference. Only after exhausting that process could claimants go to court against the trust, subject to a limit of $ 500,000 per claim, with punitive damages and prejudgment interest barred.


103. Id. at 2306.

104. 117 S. Ct. 2231, 28 ELR 20173 (1997) (holding that a class action certification seeking settlement of current and future asbestos-related claims failed to satisfy the requirements of Fed. R. Civ. P. 23).

105. See 119 S. Ct. at 2316.

106. See id. at 2317.

107. See id.

108. See id. at 2318.

109. See id. at 2321.

110. See id. at 2318.

111. See id.

112. See id. at 2319.

113. See id. at 2324.

114. See id. at 2325.

115. 119 S. Ct. 1719, 29 ELR 21274 (1999).

116. Coal Lands Act of 1909, 35 Stat. 844, 30 U.S.C. § 81; Coal Lands Act of 1910, ch. 318, 36 Stat. 583, 30 U.S.C. §§ 83-85.

117. See 119 S. Ct. at 1724-25, 29 ELR at 21276.

118. See id. at 1725, 29 ELR at 21276.

119. See id. Coal companies used to vent the gas to prevent its accumulation in the mines and made no attempt to capture or preserve it.

120. See id. at 1726, 29 ELR at 21277.

121. See id. at 1727, 29 ELR at 21277.

122. See id. at 1728, 29 ELR at 21277.

123. See id. at 1727, 29 ELR at 21277.

124. 142 F.3d 769, 28 ELR 21261 (4th Cir. 1998), cert. denied, 119 S. Ct. 407 (1998).

125. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

126. 142 F.3d at 776, 28 ELR at 21263. The wheel bearings are used on railroad cars to hold lubricant against the axle to reduce friction. See id.

127. See id. at 772, 28 ELR at 21261.

128. See id. at 773, 28 ELR at 21261.

129. See id.

130. See id. at 773, 28 ELR at 21262.

131. See id. at 774, 28 ELR at 21262.

132. See id. at 775, 28 ELR at 21262. The court noted that there is no bright line between a sale and a disposal under CERCLA. "A party's responsibility must be determined by a fact-specific inquiry into the nature of the transaction." Id.

133. See id.

134. See id. at 775, 28 ELR at 21263.

135. See id.

136. See id. at 776, 28 ELR at 21263.

137. See id.

138. 137 F.3d 1135, 28 ELR 21033 (9th Cir. 1998), cert. denied, 119 S. Ct. 275 (1998).

139. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

140. See Montana, 137 F.3d at 1138, 28 ELR at 21033.

141. See id.

142. See id. at 1141, 28 ELR at 21035.

143. See id. at 1140, 28 ELR at 21035.

144. 492 U.S. 408 (1989).

145. Montana, 137 F.3d at 1140-41, 28 ELR at 21035.

146. 97 F.3d 415, 27 ELR 20283 (10th Cir. 1996).

147. See Montana, 137 F.3d at 1141, 28 ELR at 21035.

148. See id.

149. See id.

150. See id. at 1142, 28 ELR at 21035.

151. See id.

152. See id.

153. 150 F.3d 1200, 28 ELR 21519 (D.C. Cir. 1998), cert. denied sub nom. Appalachian Power Co. v. EPA, 119 S. Ct. 2366 (1999).

154. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

155. See 150 F.3d at 1202, 28 ELR at 21520 (citing 40 C.F.R. §§ 60.11(g), 51.212(c), 52.12(c), 52.33(a), and 61.12(e) (1998)). Credible evidence is not defined in the regulations, but EPA listed, inter alia, engineering calculations, indirect estimates of emissions, direct estimates of emissions, continuous emission monitoring, and parametric monitoring as examples of what may be considered. See 150 F.3d at 1203, 28 ELR at 21520.

156. See 150 F.3d at 1203, 28 ELR at 21520.

157. See id.

158. 287 U.S. 136 (1967)

159. Clean Air Implementation Project, 150 F.3d at 1204, 28 ELR at 21521.

160. See id. at 1205, 28 ELR at 21521.

161. See id.

162. See id.

163. See id. at 1206, 28 ELR at 21521.

164. See id. at 1206, 28 ELR at 21521-22.

165. See id. at 1206, 28 ELR at 21522.

166. See id. at 1207, 28 ELR at 21522.

167. See id.

168. See id. at 1208, 28 ELR at 21522.

169. 148 F.3d 1231, 28 ELR 21546 (11th Cir. 1998), cert. denied sub nom. County Council of Volusia County v. Loggerhead Turtle, 119 S. Ct. 1488 (1999).

170. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

171. See 148 F.3d at 1235, 28 ELR at 21547.

172. See id.

173. See id.

174. See id.

175. See id. at 1236, 28 ELR at 21548.

176. See id. at 1240, 28 ELR at 21550.

177. See id.

178. See id. at 1242, 28 ELR at 21550.

179. See id.

180. See id.

181. See id.

182. See id. at 1244, 28 ELR at 21551.

183. See id. at 1249, 28 ELR at 21554.

184. See id.

185. See id.

186. See id. at 1255, 28 ELR at 21556.

187. See id. at 1253, 28 ELR at 21556.

188. See id.

189. See id. at 1255, 28 ELR at 21556.

190. See id.

191. See id. at 1256, 28 ELR at 21557.

192. See id.

193. See id. at 1257, 28 ELR at 21557.

194. 154 F.3d 426, 29 ELR 20202 (D.C. Cir. 1998). cert. denied sub nom. National Ass'n for Biomedical Research v. Animal Legal Defense Fund, 119 S. Ct. 1454 (1998).

195. 7 U.S.C. §§ 2131-2157.

196. See 154 F.3d at 428, 29 ELR at 20202.

197. See id.

198. See Animal Legal Defense Fund v. Glickman, 130 F.3d 464, 28 ELR 20395 (D.C. Cir. 1997).

199. The court held that Mare Jurnove, one of the individual plaintiffs has standing and, thus, did not consider the standing of the other individual plaintiffs.

200. See 154 F.3d at 431, 29 ELR at 20204.

201. See id. at 432, 29 ELR at 20204 (citing, inter alia, Lujan v. Defenders of Wildlife, 504 U.S. 555, 22 ELR 20913 (1992); Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 16 ELR 20742 (1986)).

202. See 154 F.3d at 432, 29 ELR at 20204.

203. See id.

204. See id. at 431, 29 ELR at 20204.

205. See id. at 438, 29 ELR at 20207.

206. See id.

207. See id. at 443, 29 ELR at 20209.

208. See id.

209. See id. at 445, 29 ELR at 20210.

210. See id. at 455, 29 ELR at 20214.

211. See id. at 450, 29 ELR at 20212.

212. 146 F.3d 595, 28 ELR 21323 (8th Cir. 1998), cert. denied, 119 S. Ct. 531 (1998).

213. See 146 F.3d at 600, 28 ELR at 21325.

214. See id. at 597, 28 ELR at 21323.

215. See id.

216. This statute requires a determination of whether the county's plan is favored over the public entity's proposed method. Then, if the county's method is preferred, the public entity must "(1) determine the potential liability to the public entity and its taxpayers for managing the waste as the entity proposes; (2) develop a plan for managing that potential liability; and (3) submit that information to the state." MINN. STAT. § 115A.471 (1998).

217. See 146 F.3d at 598, 28 ELR at 21324.

218. See id.

219. See id. at 599, 28 ELR at 21324.

220. See id.

221. See id. at 600, 28 ELR at 21325.

222. 156 F.3d 1030, 29 ELR 20032 (10th Cir. 1998), cert. denied, 119 S. Ct. 1756 (1999).

223. See 156 F.3d at 1034, 29 ELR at 20033.

224. See id.

225. See id.

226. See id. at 1035, 29 ELR at 20034.

227. See id. at 1036, 29 ELR at 20034.

228. See id. at 1037, 29 ELR at 20034.

229. Id.

230. See id.

231. See id. at 1037, 29 ELR at 20035.

232. See id.

233. 17 Cal. 4th 1006, 28 ELR 21236 (Cal. 1998), cert. denied, 119 S. Ct. 179 (1998).

234. See id. at 1011, 28 ELR at 21238. The landowners planned to build a large home in Malibu Hills. The relevant lots of land are located in the coastal zone and, therefore, are subject to the development restrictions of the California Coastal Act of 1976.

235. See id. at 1013, 28 ELR at 21238.

236. See id. at 1015, 28 ELR at 21238.

237. See id. at 1020, 28 ELR at 21240. This theory is similar to the situation where the commission of state-law error during a criminal trial is not an automatic violation of due process.

238. See id. at 1021, 28 ELR at 21240.

239. See id. at 1022, 28 ELR at 21240.

240. See id.

241. See id.

242. See id. at 1023, 28 ELR at 21241.

243. See id.

244. See id.

245. See id.

246. See id. at 1024, 28 ELR at 21241.

247. See id. at 1025, 28 ELR at 21241.

248. See id. at 1028, 28 ELR at 21242.

249. 482 U.S. 304, 17 ELR 20787 (U.S. 1987). See 17 Cal. 4th at 1030, 28 ELR at 21242.

250. See 17 Cal. 4th at 1030, 28 ELR at 21242.

251. See id. at 1033, 28 ELR at 21244.

252. 157 F.3d 86, 29 ELR 21037 (2d Cir. 1998), cert. denied sub nom. Knaust v. Kingston, N.Y., 119 S. Ct. 1805 (1999).

253. See 157 F.3d at 87, 29 ELR at 21037.

254. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

255. 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319.

256. See 157 F.3d at 87, 29 ELR at 21037.

257. See id.

258. See id.

259. See id. at 88, 29 ELR at 21037.

260. See id. at 88, 29 ELR at 21038.

261. See id.

262. See id. at 89, 29 ELR at 21038.

263. 135 F.3d 618, 28 ELR 20619 (9th Cir. 1998), cert. denied sub nom. Washington v. United States, 119 S. Ct. 1376 (1998).

264. See id. at 626, 28 ELR at 20620. In the treaties, "the Tribes ceded their aboriginal lands to the United States for settlement, receiving in exchange exclusive title to defined lands, free medical care, schools, occupational training, and annuity payments." Id. The treaties also reserved to the Tribes the right of taking fish at all usual and accustomed grounds and stations in common with all citizens of the Territory. See id.

265. See id.

266. See id.

267. Seeid.

268. See id. at 630, 28 ELR at 20622. The state argued that the tribes have no treaty right to certain species of shellfish that were not historically harvested in shallow waters and on tidelands. See id.

269. See id. at 631. 28 ELR at 20623.

270. See id. at 631-32, 28 ELR at 20623.

271. See id. at 633, 28 ELR at 20623.

272. See id. at 632, 28 ELR at 20623.

273. See id. at 633-34, 28 ELR at 20624.

274. See id. at 634. 28 ELR at 20624.

275. See id. at 635-36, 28 ELR at 20624-25.

276. See id. at 636, 28 ELR at 20625.

277. See id. at 637, 28 ELR at 20625. The district court's definition of cultivated applied only to the exiting beds on property owned or leased by growers licensed by the state. See id.

278. See id. at 638, 28 ELR at 20626.

279. See id. at 639, 28 ELR at 20626.

280. See id.

281. See id.

282. See id. at 640, 28 ELR at 20627.

283. See id. at 641, 28 ELR at 20627.

284. See id.

285. See id. at 642, 28 ELR at 20627.

286. See id. at 642, 28 ELR at 20627-28.

287. See id. at 643, 28 ELR at 20628.

288. See id.

289. See id. at 644, 28 ELR at 20628.

290. See Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998), cert. granted, 67 U.S.L.W. 3537 (U.S. Mar. 1, 1999) (No. 98-822); Fiore v. White, 149 F.3d 221, 28 ELR 21442 (3d Cir. 1998), cert. granted, 67 U.S.L.W. 3593 (U.S. Mar. 29, 1999) (No. 98-942); United States v. Vermont Agency of Natural Resources, 162 F.3d 195, 29 ELR 20405 (2d Cir. 1998), cert. granted, 67 U.S.L.W. 3775 (U.S. June 24, 1999) (No. 98-1828).

291. 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998). In Laidlaw, the Fourth Circuit vacated on mootness grounds a district court award of civil penalties in environmental groups' citizen suit against a company for FWPCA NPDES violations.

292. 149 F.3d 303, 28 ELR 21444 (4th Cir. 1998).

293. See id. at 305, 28 ELR at 21445.

294. See id.

295. See id.

296. See id.

297. See id. at 306, 28 ELR at 21445.

298. 118 S. Ct. 1003, 28 ELR 20434 (1998).

299. See 149 F.3d at 306, 28 ELR at 21445.

300. 118 S. Ct. at 1019, 28 ELR at 20438.

301. 149 F.3d 221, 28 ELR 21442 (3d Cir. 1998).

302. See id. at 222, 28 ELR at 21442. In 1983, the Pennsylvania Department of Environmental Resources discovered that hazardous wastes were seeping into a monitoring pipe under the hazardouswaste facility. The operator of the facility instructed an employee to alter the flow of the monitoring pipe so that clean water would flow through the inspected portion of the pipe, while hazardous wastes would flow into a nearby tributary. Thereafter, state officials discovered the alteration. See id.

303. See id.

304. See id. at 223, 28 ELR at 21442-43.

305. See id. at 223, 28 ELR at 21443.

306. See id.

307. See id. at 224, 28 ELR at 21444.

308. See id.

309. See id.

310. See id. at 225, 28 ELR at 21444.

311. See id. at 226, 28 ELR at 21444.

312. 162 F.3d 195, 29 ELR 20405 (2d Cir. 1998).

313. 31 U.S.C. § 3729(a).

314. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465. See 162 F.3d at 198, 29 ELR at 20406.

315. See 162 F.3d at 198, 29 ELR at 20406.

316. See id.

317. See id. at 202, 29 ELR at 20407.

318. See id. at 203, 29 ELR at 20408.

319. See id. at 202, 29 ELR at 20408.

320. See id.

321. See id.

322. See id. at 204, 29 ELR at 20408.

323. See id.

324. See id.

In the FCA, the principal uses of the term "person" are found in 31 U.S.C. §§ 3729 and 3730, which provide that "any person" is liable for making false claim[s] …, that the Attorney General may bring a civil action "against the person" … and that "[a] person" may bring a qui tam action …. Thus, the same term is used to categorize both those who may sue and those who may be sued, whether by the government itself or by a qui tam plaintiff.

Id. (citing FCA §§ 3729(a), 3730(a), and 3730(b)(1)).

325. See 162 F.3d at 204, 29 ELR at 20408.

326. See id. at 205, 29 ELR at 20409.

327. See id. at 207, 29 ELR at 20410.

328. See id.

29 ELR 10610 | Environmental Law Reporter | copyright © 1999 | All rights reserved