In 2009, the Department of the Interior acquired land so the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians could build a casino.  David Patchak owns land adjacent to the proposed casino and he filed a lawsuit alleging that the acquisition of the land violated federal law.  The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians and the federal government asserted the federal Quiet Title Act prohibits lawsuits like this one, which challenge the government’s ownership of Indian trust lands.  The U.S. Supreme Court held that the Quiet Title Act did not apply because Patchak asserted the acquisition of the land was unlawful, not that he was the rightful owner of the land.

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The United States District Court for the Western District of North Carolina determined the Nantahala National Forest properly amended the Forest Plan to prohibit and restrict vehicular access to the Upper Tellico Off Highway Vehicle System.  On summary judgment, the court found the Forest Service followed the appropriate procedures in deciding that erosion and sedimentation related to off-roading were imperiling the native brook trout.

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In a case of first impression, the Circuit Court of Appeals for the Federal Circuit reviewed a trial court ruling on a motion to intervene as a matter of right.  In reviewing the Federal Claims Rule for intervention as of right, the court assessed the necessary showing of facts required by the intervenor to meet its burden of proving that adequate representation could not be made by an existing party.  The court found that the trial court properly denied Pacific Coast Federation of Fishermen’s Associations’ (“PCFFA”) motion because its litigation goals were the same as those of the government, and therefore the court’s conclusion would resolve the government’s contentions at the same time as it would the PCFFA similar and related arguments.

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This case reviews challenges to the Forest Service’s project-level compliance with the Forest Plan’s population viability requirements and environmental assessment for the Angora Project in the Lake Tahoe area.  The plaintiffs brought challenges under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA), governed by the Administrative Procedure Act’s “arbitrary and capricious” standard.  The Ninth Circuit affirmed the District Court for the Eastern District of California’s holding that NFMA did not require an assessment of the quantity and quality of habitat needed for the black-backed woodpecker, and the EA was not arbitrary and capricious pursuant to NEPA.

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The Court of Appeals for the Ninth Circuit’s decision in Kivalina follows the United States Supreme Court’s recent trend in denying the use of federal common law claims for redress of damages allegedly caused by greenhouse gas emissions.  Under the doctrine of displacement, the court concluded that the concerns raised by the Native Village of Kivalina are addressed under the Clean Air Act, precluding a federal common law nuisance claim.  However, the court noted that additional analysis by future federal courts may be appropriate in addressing whether damages are also displaced. The court did not preclude the possibility for redress under a state common law nuisance claim.  The court held that federal common law was not available to resolve the issues raised by Kivalina, and that only the legislative and the executive branches could provide a remedy.

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The United States Court of Appeals for the Federal Circuit interpreted contractual language in favor of the United States Forest Service (“USFS”) in this case concerning Pacific Northwest timber harvest contracts.  The contracts at issue contained provisions authorizing USFS to suspend harvest if ordered to do so by a court; when USFS exercised the provision, Scott Timber sued for breach.  On appeal of the Court of Federal Claims ruling in Scott’s favor, the court held: USFS did not breach the implied duty of good faith and fair dealing; a settlement agreement from a separate but related lawsuit served to bind USFS similarly to a court order; the USFS did not unreasonably delay its response to that settlement agreement; and, that Scott was not damaged by the suspensions at issue.  The Federal Circuit Court thus reversed the lower court and found in favor of USFS.

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Defendant landowners claimed possession of riparian lands bordering the Missouri River.  However, the State of Montana proved these lands had emerged vertically from the bed of the Missouri after Statehood and thus were the property of the State under both the public trust and the equal footing doctrines.  While the case was in front of the Montana Supreme Court, a legislative amendment to HB 165, personally sponsored by Montana Governor Brian Schweitzer, identified these lands as State school trust lands.  HB 165 further specified that income from “certain islands, abandoned riverbeds, riverbeds, and power sites” be deposited in the public schools’ facility and technology account.  Because substantial oil and gas royalties are attached to the lands in this case, the schools received a windfall, and the defendants were left to pay the State’s costs.

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In this case, the Ninth Circuit affirmed the United States Environmental Protection Agency Environmental Appeals Board’s order denying review of petitioners’ Native Village of Kivalina IRA Council (Kivalina)’s challenge of a permit issued to the mining company Teck Alaska, Inc.  Teck’s permit allows the company to discharge wastewater from the Red Dog Mine into the Wulik River in northwestern Alaska, near the Kivalina village.  The Ninth Circuit held that Kivalina failed to address the United States Environmental Protection Agency’s allegedly inadequate responses to Kivalina’s public comments on the proposed permit.  Thus, the United States Environmental Protection Agency Environmental Appeals Board properly denied Kivalina’s request for review.

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