The Public Land and Resources Law Review

John Newman

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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By William Fanning

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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By Clare Hansen

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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By Jack Connors

The issue of whether two adjoining bodies of water are connected in such a way that a change in flow in one will affect the flow in the other is a complex question.  In Fellows v. Office of Water Commission for the Perry v. Beattie Decree, the Montana Supreme Court decided it is possible for two waterways to be hydrologically interconnected in a way that affects water rights holders on the two waterways.

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By Ali Guio

In Texas v. U.S. Environmental Protection Agency, the Court of Appeals for the Fifth Circuit vacated an Environmental Protection Agency rule disapproving Texas’s State Implementation Plan for compliance with National Ambient Air Quality Standards under the Clean Air Act.  The court emphasized the importance of the cooperative federalism model embodied in the Clean Air Act, wherein the Environmental Protection Agency sets air quality standards and each state determines how it will meet those standards.  The court held that the agency acted arbitrarily and capriciously in disapproving the plan because disapproval was not based on enforceable statutory requirements of the Clean Air Act.

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By John Newman

The California Supreme Court affirmed the court of appeals and adopted an “all-sums-with-stacking” indemnity principle in the context of a large hazardous waste site cleanup.  The court employed this principle because of the plain language of the policies at issue, the expectations of parties to the insurance contracts, and because of the complexity of “long-tail” environmental injuries.  The court held the “all-sums” indemnity provisions applied to continuous injuries both beginning when coverage applied and continuing after policy expiration, as well as beginning prior to coverage but continuing into a new policy period.  Further, the court supported stacking of multiple insurers’ policies within any single policy period because doing so affords long-tail insureds increased protection through coverage they have already purchased.  The court deemed the adopted principle fair because insurers can expect to indemnify insureds while on the risk in a particular situation, and are free to include contractual terms avoiding all-sums coverage and prohibiting stacking.  Given similar factual circumstances and equivalent state insurance statutory schemes, the court’s reasoning in this case may prove relevant in jurisdictions other than California.

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The United States Supreme Court decided to let stand a 10th Circuit decision that upheld the viability of the roadless rule.  The state of Wyoming and the mining industry urged the Court to hear the case, along with eight other states.  The decision not to hear the case lets the Clinton-era rule stand for now, as well as the millions acres of forest the rule aims to protect.

For more information on the Court’s decision, click here.