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1988-2000 An Era of Incremental Changes

Steps leading to the George Rogers Clark Memorial. Courtesy of NPS
Photo by NPS

In contrast to the immediately preceding era, the Supreme Court becomes less willing to grant certiorari, and tends to rule incrementally when it does accept review. Much of the action shifts to the courts of appeals, where the Ninth Circuit in particular carves out a large body of precedent setting a high standard for finding that environmental laws, particularly NEPA and the ESA, have been satisfied. While the Section continues to litigate environmental enforcement cases in the courts of appeal, the decade of the 1990s sees substantial growth in the number of defensive cases involving hazardous waste cleanups, as States and private citizens seek to force the United States to take cleanup actions at federal facilities.

The old Amicus computer system is replaced by JCON, which has web capabilities and email. Computerized legal research becomes possible, though many attorneys continue to rely on Bob Klarquist’s handwritten digest, as well as Blake Watson’s personal computerized digest of Appellate Section cases, known popularly as “Blakelaw.” The Section begins to go on bi-annual retreats to Shepherdstown, W.Va., and on the first of those retreats the Section band – the Nine Inch Margins – is born. Dress standards for attorneys gradually loosen, with ties becoming the exception rather than the rule for men in the office.

Also during this period, Jim Kilbourne, who had been a Section attorney from 1979-1982 and then an Assistant Chief and Chief of the Wildlife Section, becomes Appellate Section Chief. Billy Lazarus becomes an Assistant Section Chief, and Ellen Durkee and J.C. Williams also put in stints as Assistant Chiefs covering the forestry/wildlife area. In 1997, the Appellate Section moves to temporary quarters in the Patrick Henry Building, as Main Justice is renovated.


The Old-Growth Timber/Spotted Owl Controversy – The Appellate Section plays a central role in contentious litigation involving the remaining old-growth forests of the Pacific Northwest. An initial appeal, involving the application of a congressional rider barring certain challenges to timber sales, is decided by Ninth Circuit Judges Schroeder, Goodwin, and Pregerson; this becomes the "spotted owl panel" and takes jurisdiction over a host of subsequent appeals. See Portland Audubon Soc. v. Hodel, 866 F.2d 302 (9th Cir. 1989). Marty Matzen handles much of the early spotted owl litigation in the Ninth Circuit.

Limiting Expansive Ninth Circuit Interpretations of NEPA – After the Ninth Circuit holds that the Corps of Engineers should have completed a supplemental Environmental Impact Statement on a dam in Oregon (in a case handled by Laura Frossard), and holds that an EIS on a ski development failed to contain an adequate mitigation plan (in a case handled by David Shilton); the Supreme Court grants certiorari in both cases. Vicki Plaut then plays a key role in the Supreme Court briefing, and the Court renders two opinions which circumscribe the ability of lower courts to “second guess” agency’s NEPA determinations. Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (agency determination as to whether a supplemental EIS is needed is reviewed under a deferential arbitrary and capricious standard); Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA does not require agency to include a fully developed mitigation plan in its EIS, or to develop a “worst-case” analysis).


John Bryson and Ron Spritzer - Yucca Mountain
Photo by ENRD

The Yucca Mountain Saga – John Bryson successfully handles the first of many challenges to the Department of Energy’s efforts to build a nuclear waste repository at Yucca Mountain in Nevada. See Nevada v. Watkins, 914 F.2d 1545 (9th Cir. 1990) (upholding constitutionality of Nuclear Waste Policy Act). As a reward for his efforts, he is asked to handle at least nine subsequent court of appeals cases involving Nevada’s continuing attempts to block this project. John, along with Ron Spritzer and other Section attorneys, consistently win these cases. John also turns back an industry attempt to force the Department of Energy to store the industry’s nuclear waste even in the absence of an operational federal repository. Indiana Michigan Power Co. v. Dept. of Energy, 88 F.3d 1272 (D.C. Cir. 1996).

Expansion of Clean Water Act Jurisdiction – Michael Healy obtains an important ruling from the Ninth Circuit holding that the Corps of Engineers has jurisdiction over ponds next to a Wildlife Refuge on San Francisco Bay that were converted from dry land decades earlier. Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990).


The Fernald Materials Production Center.  Courtesy of EPA
Photo by EPA

The Fernald Ohio Uranium Plant Cleanup – A suit by the State of Ohio against the Department of Energy over uranium disposal practices leads to an important Supreme Court ruling regarding the extent to which Federal agencies are subject to State pollution laws. After the Sixth Circuit holds that DOE can be subjected to civil penalties under State law, Jacques Gelin and Bob Klarquist take the matter to the Supreme Court, which reverses and limits the exposure of the Federal Government to penalties in Dept. of Energy v. Ohio, 503 U.S. 607 (1992).

An Important Standing Precedent David Shilton represents the Department of the Interior in an Eighth Circuit challenge to the Department's refusal to consult under the Endangered Species Act on overseas projects receiving money from the Agency for International Development. After the court of appeals rules against the Government on plaintiffs' standing and on the merits, the Supreme Court grants certiorari, and in 1992 issues an opinion containing some important limitations on standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

The Mt. Graham Telescope – In June of 1990, the district court in Arizona enjoins further construction of a new telescope at the Mt. Graham Observatory, due to potential impacts on the endangered Mt. Graham red squirrel. This leads to years of litigation, with seven court of appeals opinions dealing with the Endangered Species Act and congressional efforts to exempt the telescope from further judicial review. See Mount Graham Coalition v. U.S. Forest Service, 108 F.3d 1100, 1100 (9th Cir. 1997) (listing cases). The appeals are ably handled by Alice Thurston and Mark Haag. The telescope is built.


A Useful Separation of Powers Ruling – After the spotted owl panel (see above) holds a provision of the Northwest Timber Compromise unconstitutional, Anne Almy leads a successful effort to obtain certiorari and overturn the ruling. The Supreme Court rules that it does not violate the doctrine of separation of powers for Congress to deem satisfied certain identified statutory requirements that were the basis for two lawsuits specifically identified in the legislation. Robertson v. Seattle Audubon Soc., 503 U.S. 429 (1992).

Preserving the Everglades – As major litigation begins seeking to limit harmful farm runoff into the Florida Everglades, Appellate Section attorneys, led by Ellen Durkee, successfully defend against a number of appeals taken by groups opposed to the ambitious cleanup effort. See, e.g., United States v. South Florida Water Management Dist., 922 F.2d 704 (11th Cir. 1991); United States v. Southern Florida Water Management Dist., 28 F.3d 1563, 1566 (11th Cir. 1994).


The Supreme Court Finds a “Categorical” Taking – The Appellate Section in this period files a number of briefs amicus curiae in cases challenging environmental restrictions as alleged Fifth Amendment “takings” of property. Marty Matzen and Pete Steenland prepare an amicus brief supporting the constitutionality of South Carolina’s Beachfront Management Act. The Court, however, finds that the Act rendered beach front property at Isle of Palms, South Carolina “valueless,” and constitutes a categorical taking that must be compensated. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).

The Navajo-Hopi Settlement – In 1991, the Ninth Circuit, after hearing oral argument (handled by Terri Schley) in a case involving Navajos living on land that had been partitioned to the Hopi Tribe under earlier legislation, orders the United States, the Navajo Nation, and the Hopi Tribe into mediation regarding this 100-year old land dispute between the Tribes. A new section attorney, Katherine Hazard, is assigned to the mediation, which becomes an intensive five-year process. Despite predictions that this long-running and bitter controversy could never be settled, the parties (with personal participation by Attorney General Janet Reno) manage to reach a settlement which is embodied in the Navajo-Hopi Land Dispute Settlement Act of 1996. See, e.g., Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999) (summarizing history).


A Dinosaur Named “Sue” – Ed Shawaker convinces the Eighth Circuit that a remarkably complete Tyrannosaurus Rex fossil nicknamed “Sue,” which had been excavated from land held in trust for an individual Indian by the United States and then sold by the Indian to a private institute, still belongs to the United States, on the theory that the fossil was “land” rather than “personal property” before it was excavated. Black Hills Institute of Geological Research v. South Dakota School of Mines and Technology, 12 F.3d 737 (8th Cir. 1993).

Nabbing a Notorious Wetlands Filler – Vicki Plaut gets an excellent and comprehensive decision from the Third Circuit upholding the Corps of Engineers’ jurisdiction over wetlands and the propriety of restoration orders, in a case involving a particularly litigious and obstinate defendant. United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993).

Protecting Endangered Species From Habitat Degradation – Ellen Durkee gets the honor of having the first published opinion in the new West F.3d Reporter, as a split panel of the D.C. Circuit upholds the Fish and Wildlife Service’s broad definition of “harm” as used in the Endangered Species Act to include habitat degradation. Sweet Home v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993). Then, after rehearing is denied once, Judge Williams changes his mind and the panel substitutes a new opinion finding that this broad definition contradicts the statute. The Supreme Court eventually agrees with the position of the United States, presented in briefing by Ellen, assisted by J.C. Williams and Marty Matzen, and holds that including habitat degradation in the definition of harm is a permissible construction of the statute. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).

A Successful 12-Year Battle to Establish That Oversight Costs Can be Recovered Under CERCLA – In United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir. 1993), a Third Circuit panel rules that costs incurred by the Government in overseeing a hazardous waste cleanup performed and paid for by a private party are not recoverable pursuant to CERCLA. John Stahr and, later, Kathy Barton begin a 12-year campaign to reverse this problematic ruling, obtaining rulings supporting recoverability of oversight costs in United States v. Lowe, 118 F.3d 399 (5th Cir. 1997); United States v. Dico, Inc., 266 F.3d 864 (8th Cir. 2001); and Atl. Richfield Co. v. Am. Airlines, Inc., 98 F.3d 564 (10th Cir. 1996). Finally in 2005, the Third Circuit reconsiders, and in an en banc ruling reverses its 1993 panel ruling and finds that oversight costs are indeed recoverable. United States v. E.I. Dupont De Nemours and Co. Inc., 432 F.3d 161 (3d Cir. 2005).


Increasing Use of Alternative Dispute Resolution – With strong encouragement and support from Attorney General Janet Reno and Assistant Attorney General Lois Schiffer, the Section begins to focus more on alternative dispute resolution (ADR). At the same time, most of the courts of appeals begin instituting mediation programs, in part to deal with the explosive growth of their dockets. Al Ferlo is the first Appellate Section ADR coordinator, followed by Peter Appel and then Marty Matzen.


A Surface Mining Act Victory – One of Tamara Rountree’s first assigned cases after joining the Section is a difficult top-side case under the Surface Mining Act; she obtains a reversal and an excellent opinion upholding the propriety of vital enforcement provisions under the Act. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231 (3d Cir. 1995).

NEPA Claims – The National Environmental Policy Act continues to spawn more litigation and appeals for the Section than any other environmental statute. Joan Pepin obtains a largely favorable decision in a challenge to a highway realignment in City of Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th Cir. 1997). This becomes one of the most frequently-cited NEPA precedents on what constitutes an adequate NEPA analysis of project impacts and alternatives.

Salvage Timber Sales – Because the Northwest Forest Plan reduced the amount of timber available from federal lands in the Northwest, Congress in the mid-1990s enacts measures to “release” certain timber from normal environmental review constraints, particularly salvage sales of timber in burned areas. This leads to a plethora of lawsuits and appeals. See, e.g., Sierra Club v. U.S. Forest Service, 93 F.3d 610 (9th Cir. 1996) (upholding salvage sale); Northwest Forest Resource Council v. Pilchuck Audubon Soc., 97 F.3d 1161 (9th Cir. 1996) (upholding Rescissions Act sales). Lisa Jones and Al Ferlo in particular become known for being able to win these difficult cases in the Ninth Circuit. 

A Major Decision Under Indian Gaming Regulatory Act – Ed Shawaker and Anne Almy prepare an amicus brief filed in the Supreme Court to support the Seminole Tribe’s claim that the 1988 Indian Gaming Regulatory Act provides a cause of action to sue a State for failure to negotiate a gaming compact in good faith. The Supreme Court, however, holds that while the Act provides such a cause of action, Congress lacks the power to waive the States’ sovereign immunity in this way. Seminole Tribe v. Florida, 517 U.S. 44 (1996).

Hazardous Waste of All Sorts – Peter Appel successfully handles multiple appeals in a major Environmental Enforcement Section case against a Louisiana waste processor that was operating without a hazardous waste permit under the Resource Conservation Recovery Act. See In re Marine Shale Processors, Inc., 91 F.3d 16 (5th Cir. 1996) (citing earlier decisions). He is then tasked with defending the Army’s incineration of large amounts of obsolete chemical weapons, and again prevails over the course of multiple appeals. See Chemical Weapons Working Group v. Department of the Army, 101 F.3d 1360 (10th Cir. 1996). Perhaps wishing to avoid further exposure to toxic wastes, Peter later heads to the University of Georgia Law School to teach environmental law.


Defending Forest Plans – The Sixth Circuit rejects Ann Peterson’s attempt to defend the adequacy of the Forest Plan for the Wayne National Forest in Ohio against a broad attack by the Gibbs Sierra Club that is not focused on any particular projects. After the Supreme Court grants certiorari, Ann helps convince the Court that the Sierra Club’s claims are unripe, in a decision that becomes an important Administrative Law precedent. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998).

Supreme Court Takes Expansive View of Claims Permitted Under Endangered Species Act – After Ellen Durkee succeeds in getting the Ninth Circuit to dismiss on standing grounds a challenge by irrigators to certain measures for protecting endangered fish, the Supreme Court grants the irrigators’ petition. Evelyn Ying drafts the Government’s brief on a variety of threshold issues relating to whether such claims are justiciable. The Court ultimately sides with the irrigators, finding that they have standing and that a biological opinion prepared by the Fish and Wildlife Service is a final agency action that can be challenged in court. Bennett v. Spear, 520 U.S. 154 (1997).

Success in Fishery Plan Challenges – This period sees a large number of challenges to fishery management plans; the Section is able to prevail against nearly all of them. See, e.g., Alliance Against IFQs v. Brown, 84 F.3d 343 (9th Cir. 1996) (Marty Matzen); Fishermen's Dock Coop., Inc. v. Brown, 75 F.3d 164 (4th Cir. 1996) (Jonathan Klein); Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997) (Andy Mergen).


Defending Tribal Rights to Hunt, Fish and Gather – In the Eighth Circuit, Ann Peterson successfully defends the Mille Lacs Band of Chippewa Indians’ claim to continued rights to hunt, fish and gather wild rice on land ceded in an 1837 treaty, against claims of the State that these rights had been abrogated. The Supreme Court grants the State’s petition for certiorari, but ultimate agrees with our position that these rights survive to the present day. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).

Establishing the Liability of Parent Corporations for CERCLA Cleanups – After Katherine Hazard is rebuffed in the Sixth Circuit in her effort to hold a parent corporation liable for the actions of its subsidiary at a hazardous waste site, she along with Evelyn Ying and Marty Matzen help convince the Supreme Court to take the case. Oral argument for the government is presented by AAG Lois Schiffer. The Court eventually holds that parent corporations can in some circumstances be made to pay for dumping by their subsidiaries, particularly where the parent is actively involved with the workings of the subsidiary. United States v. Bestfoods, 524 U.S. 51 (1998).

Defending the Constitutionality of the Endangered Species Act – The Supreme Court’s decision in United States v. Lopez, 514 U.S. 549 (1995), reinvigorates challenges by property owners and others contending that Congress lacks power to regulate under the Commerce Clause based on the need to protect endangered or threatened species, where those species are not traded in interstate commerce. In a series of cases in different circuits, some over vigorous dissents, the Section manages to fend off these Commerce Clause challenges to the constitutionality of the ESA in protecting species ranging from the charismatic – Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (red wolf) – to the homely Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003) (arroyo southwestern toad) – to the creepy GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (various species of cave-dwelling bugs) – to the just plain weird National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (Delhi Sands Flower-Loving Fly). Andrew Mergen (wolf) plays a vital role in litigating and coordinating these cases, along with Stephanie Tai (cave bugs), David Shilton (flower-loving fly), Kathy Barton (toad), Jim Kilbourne, and others.


Wolf Reintroduction Upheld – After the District Court for the District of Wyoming strikes down Interior's final wolf introduction rules and orders reintroduced wolves removed from Yellowstone Park, Alice Thurston obtains a complete reversal from the 10th Circuit in an opinion finding that the reintroduction of wolves into this area as an “experimental population” was entirely consistent with the Endangered Species Act. Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224 (10th Cir. 2000). Meanwhile, Jim Kilbourne gets the reintroduction program upheld in the Ninth Circuit in a case affirming a conviction for illegally shooting a wolf. United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998). The controversial reintroduction of wolves to the Rockies, while biologically a success, continues to produce litigation and appeals, including Gordon v. Norton, 322 F.3d 1213 (10th Cir. 2003) (Kathy Barton fends off taking claims based on wolf depredations); and State of Wyoming v. Dept. of Interior, 442 F.3d 1262 (10th Cir. 2006) (David Shilton fends off claims by State that Interior has failed to manage and control the wolf population).

Adding “Fishways” to Old Dams – As many old hydropower licenses start to come before the Federal Energy Regulatory Commission for re-licensing, the Appellate Section represents the Departments of the Interior and Commerce, and sometimes the Environmental Protection Agency, in trying to get FERC to add conditions to protect fish, the surrounding environment, and in some cases Indian Reservations. In American Rivers v. F.E.R.C., 201 F.3d 1186 (9th Cir. 1999), Sean Donahue convinces the Court to rule that FERC lacks authority to reject fishway prescriptions proposed by the Secretary of Commerce or Secretary of the Interior.

The Pueblo of Sandia Settlement – After a district court finds that the Department of the Interior was arbitrary and capricious in refusing to resurvey the boundaries of the Sandia Pueblo, located on the outskirts of Albuquerque, Marta Hoilman patiently conducts an intensive and complex negotiation involving the many affected parties, resulting in a settlement among most of the parties in 1999. David Lazerwitz then helps fend off a challenge by non-settling parties. Pueblo of Sandia v. Babbitt, 231 F.3d 878 (D.C. Cir. 2000).


Defending Tribal Court Jurisdiction – In one of the Section’s more important State Supreme Court cases, Ethan Shenkman convinces the Alaska Supreme Court that Alaska Native Tribes have inherent, non-territorial sovereignty allowing their courts to resolve disputes between members, and that this sovereignty was not divested by the Alaska Native Claims Settlement Act. John v. Baker, 982 P.2d 738 (Alaska 1999).

Updated September 14, 2023