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SPECIALTY LAW - September, 2004 Environmental Law

Cases summarized in the September, 2004 issue of
Specialty Law Digest: Environmental Law.

GENERAL INDEX


abuse of process -- right of homeowners to participate in hearings and oppose zoning applications that affected their property was recognized and encouraged -- developer's abuse of process claim properly dismissed. Structure Building Corp. v. Abella (N.J.App. 2005), 873 A.2d 601

air pollution -- $18,800 civil penalty against county landfill for improperly handling of asbestos materials would be upheld. In the Matter of Lyon County Landfill, Lynd, Minnesota (C.A. 8, Minn. 20025), 406 F.3d 981

-- remand ordered to determine whether plant developer established that emissions from its proposed project would not cause or contribute to adverse impact on visibility in Class I areas at issue. Montana Envir. Information Ctr. v. Montana Dep't of Envir. Quality (Mont. 2005), 2005 MT 96

-- tearing out grass crop halfway through its productive life was not enforceable alternative to field burning as residue management technique under Washington Clean Air Act. Ted Rasmussen Farms, LLC v. State of Washington Dep't of Ecology (Wash.App. 2005), 110 P.3d 823

armed forces -- mag-thor contamination caused by radioactive scrap metal that was purchased from United States Air Force had not caused any diminution in overall worth of owner's property. Hogan v. United States (C.A. 6, Ohio 2005), 407 F.3d 778

-- United States had not waived its sovereign immunity for suit by private owner to recover monetary damages for its cleanup of past oil contamination on property that was formerly United States Navy base. Marina Bay Realty Trust LLC v. United States (C.A. 1, Mass. 2005), 407 F.3d 418

asbestos -- $18,800 civil penalty against county landfill for improperly handling of asbestos materials would be upheld. In the Matter of Lyon County Landfill, Lynd, Minnesota (C.A. 8, Minn. 20025), 406 F.3d 981

asphalt plants -- plaintiff established requisite standing to challenge Town Board's issuance of negative declaration finding that siting of temporary asphalt plant on Youngs Avenue landfill would not have significant environmental impact. In re Long Island Contractors' Ass'n (N.Y.App.Div. 2005), No. 2004-01279

attorney fees -- in connection with environmental plaintiffs' action filed under Brown Act, trial court had justifiable basis for imposing attorney fee award against plaintiffs under Brown Act. Proe v. City of Auburn (Cal.App. 2005), No. C047028

biosolids -- County's ordinance is duplicative, in that provisions of permit already provided that local government may monitor land application of biosolids. Granville Farms, Inc. v. County of Granville (N.C.App. 2005), 612 S.E.2d 156

Brown Act -- in connection with environmental plaintiffs' action filed under Brown Act, trial court had justifiable basis for imposing attorney fee award against plaintiffs under Brown Act. Proe v. City of Auburn (Cal.App. 2005), No. C047028

Caiman Crocodilus -- People failed to establish that defendant possessed and sold Dwarf Caiman or any other species of Caiman Crocodilus, endangered species for which permit was required pursuant to NYS Environmental Conservation Law. People v. Dellecave (N.Y.Tr.T. 2005), 7 Misc.3d 1017(A)

certiorari -- attack on validity of county zoning ordinance was attack on legislative decision, not reviewable by writ of certiorari. Dead Lake Ass'n, Inc. v. Otter Tail County, Minnesota (Minn. 2005), 695 N.W.2d 129

Claims Commission -- Claims Commission properly dismissed property owners' claims against number of entities for damages allegedly caused by disposal of toxic and hazardous waste on another's property near that of their own where Claims Commission lacked subject matter jurisdiction over claim. Wells v. State (Tenn.App. 2005), No. E2004-02345-COA-R3-CV

Clean Air Act -- $18,800 civil penalty against county landfill for improperly handling of asbestos materials would be upheld. In the Matter of Lyon County Landfill, Lynd, Minnesota (C.A. 8, Minn. 20025), 406 F.3d 981

Clean Water Act -- direct appellate review of interpretation of already listed toxic pollutant in response to primary jurisdiction referral was not within scope of section 1369(b). Narragansett Electric Co. v. United States Envir. Prot. Agency (C.A. 1, Mass. 2005), 407 F.3d 1

cleanup costs -- homeowners' suit seeking recover of costs associated with cleanup of hazardous substances under CERCLA were time-barred. Syms v. Olin Corp. (C.A. 2, N.Y. 2005), 408 F.3d 95

coal plants -- remand ordered to determine whether plant developer established that emissions from its proposed project would not cause or contribute to adverse impact on visibility in Class I areas at issue. Montana Envir. Information Ctr. v. Montana Dep't of Envir. Quality (Mont. 2005), 2005 MT 96

coastal projects -- trial court properly issued writ of mandate requiring additional studies of cumulative impacts in Environmental Impact Report prepared by San Diego Unified Port District for coastal development project. Schmidt v. San Diego Unified Port District (Cal.App. 2005), No. D044671

commercial fishing licenses -- applicant did not meet his burden of establishing that his rights of due process and equal protection were violated by denial of commercial license. Riley v. Rhode Island Dep't of Envir. Management (R.I.Super. 2005), No. PC 04-0987

conditional use permits -- growth management plan and its conditional use permit standards were not unconstitutionally vague. Laughter v. Board of Cty. Comm'rs for Sweetwater Cty., Wyoming (Wyo. 2005), 110 P.3d 875

counties -- County's ordinance is duplicative, in that provisions of permit already provided that local government may monitor land application of biosolids. Granville Farms, Inc. v. County of Granville (N.C.App. 2005), 612 S.E.2d 156

crimes -- People failed to establish that defendant possessed and sold Dwarf Caiman or any other species of Caiman Crocodilus, endangered species for which permit was required pursuant to NYS Environmental Conservation Law. People v. Dellecave (N.Y.Tr.T. 2005), 7 Misc.3d 1017(A)

deserts -- developer could not begin developing any portion of land in absence of appropriately broad NEPA analysis by Corps. Save Our Sonoran v. Flowers (C.A. 9, Ariz. 2005), 408 F.3d 1113

developments -- developer could not begin developing any portion of land in absence of appropriately broad NEPA analysis by Corps. Save Our Sonoran v. Flowers (C.A. 9, Ariz. 2005), 408 F.3d 1113

-- right of homeowners to participate in hearings and oppose zoning applications that affected their property was recognized and encouraged -- developer's abuse of process claim properly dismissed. Structure Building Corp. v. Abella (N.J.App. 2005), 873 A.2d 601

Dwarf Caiman -- People failed to establish that defendant possessed and sold Dwarf Caiman or any other species of Caiman Crocodilus, endangered species for which permit was required pursuant to NYS Environmental Conservation Law. People v. Dellecave (N.Y.Tr.T. 2005), 7 Misc.3d 1017(A)

eminent domain -- Jefferson County Metropolitan Sewer District was authorized to take possession of permanent and temporary easements across property in order to construct and operate public sewers and drainage facilities. Golden Foods, LLC v. Louisville & Jefferson County Met. Sewer Dist. (Cal.App. 2005), No. 2004-CA-000688-MR

endangered species -- People failed to establish that defendant possessed and sold Dwarf Caiman or any other species of Caiman Crocodilus, endangered species for which permit was required pursuant to NYS Environmental Conservation Law. People v. Dellecave (N.Y.Tr.T. 2005), 7 Misc.3d 1017(A)

environmental cleanup -- claim was made that losses, including additional labor costs, were incurred to clean up hazardous materials that were not disclosed by seller of real estate. Franklin Reinforcing Steel Co., Inc. v. Kruss (Cal.App. 2005), No. B167565

environmental impact reports -- noise attenuation study prepared at defendants' request provided sufficient information to support fair argument that mitigation measured defendants approved would reduce exterior noise levels on plaintiff's development below city's maximum exterior noise level. Sycamore Gardens Homeowners Ass'n v. City of Tustin (Cal.App. 20095), No. G034044

-- trial court properly issued writ of mandate requiring additional studies of cumulative impacts in Environmental Impact Report prepared by San Diego Unified Port District for coastal development project. Schmidt v. San Diego Unified Port District (Cal.App. 2005), No. D044671

environmental impact statements -- developer could not begin developing any portion of land in absence of appropriately broad NEPA analysis by Corps. Save Our Sonoran v. Flowers (C.A. 9, Ariz. 2005), 408 F.3d 1113

-- potential socioeconomic effect of water treatment plant project was environmental consideration and was extensively analyzed in DSEIS and FSEIS. Bronx Envir. Health & Justice Inc. v. New York City Dep't of Envir. Prot. (N.Y.Tr.T. 2005), 8 Misc.3d 1002(A)

erosion -- trial court properly issued writ of mandate requiring additional studies of cumulative impacts in Environmental Impact Report prepared by San Diego Unified Port District for coastal development project. Schmidt v. San Diego Unified Port District (Cal.App. 2005), No. D044671

exotic animals -- Tennessee's interest in protecting its indigenous white-tailed deer population outweighed statutory ban's effect on interstate commerce. Bean v. Bredesen (Tenn.App. 2005), No. M2003-01665-COA-R3-CV

field burning permits -- tearing out grass crop halfway through its productive life was not enforceable alternative to field burning as residue management technique under Washington Clean Air Act. Ted Rasmussen Farms, LLC v. State of Washington Dep't of Ecology (Wash.App. 2005), 110 P.3d 823

fines -- $18,800 civil penalty against county landfill for improperly handling of asbestos materials would be upheld. In the Matter of Lyon County Landfill, Lynd, Minnesota (C.A. 8, Minn. 20025), 406 F.3d 981

fishing -- applicant did not meet his burden of establishing that his rights of due process and equal protection were violated by denial of commercial license. Riley v. Rhode Island Dep't of Envir. Management (R.I.Super. 2005), No. PC 04-0987

hazardous materials -- injunction issued against D.C. Act, where ban on all shipments by rail or truck of certain hazardous materials within 2.2 miles of United States Capitol would irreparably harm transportation company. CSX Transportation, Inc. v. Williams (C.A.D.C. 2005), 406 F.3d 667

hazardous waste -- Claims Commission properly dismissed property owners' claims against number of entities for damages allegedly caused by disposal of toxic and hazardous waste on another's property near that of their own where Claims Commission lacked subject matter jurisdiction over claim. Wells v. State (Tenn.App. 2005), No. E2004-02345-COA-R3-CV

hazardous waste disposal -- it was reasonable to conclude that litigation was foreseeable against manufacturer of "explosion-proof" pump in use at time of explosion and that loss of pump would harm that potential litigation. Glotzbach v. Froman (Ind.App. 2005), 827 N.E.2d 105

hazardous wastes -- United States had not waived its sovereign immunity for suit by private owner to recover monetary damages for its cleanup of past oil contamination on property that was formerly United States Navy base. Marina Bay Realty Trust LLC v. United States (C.A. 1, Mass. 2005), 407 F.3d 418

immunity -- United States had not waived its sovereign immunity for suit by private owner to recover monetary damages for its cleanup of past oil contamination on property that was formerly United States Navy base. Marina Bay Realty Trust LLC v. United States (C.A. 1, Mass. 2005), 407 F.3d 418

insurance -- pollution exclusion clause did not render policies illusory with respect to building owners because policy would still cover variety of claims, including slip and fall accidents. Quadrant Corp. v. American States Ins. Co. (Wash. 2005), 110 P.3d 733

land use -- subdivision plans met Town's requirements as they related to roads, drainage, sewage disposal and water supply. Polleys v. Ferrazzano (R.I.Super. 2005), No. PC-02-5759

landfills -- $18,800 civil penalty against county landfill for improperly handling of asbestos materials would be upheld. In the Matter of Lyon County Landfill, Lynd, Minnesota (C.A. 8, Minn. 20025), 406 F.3d 981

-- final order of Texas Natural Resource Conservation Commission granting BFI Waste Systems permit to vertically expand its municipal solid-waste landfill in Hidalgo county would be upheld. Citizens Against Landfill Location v. Texas Comm'n on Envir. Quality (Tex.App. 2005), No. 03-04-00390-CV

licenses -- applicant did not meet his burden of establishing that his rights of due process and equal protection were violated by denial of commercial license. Riley v. Rhode Island Dep't of Envir. Management (R.I.Super. 2005), No. PC 04-0987

limitations -- homeowners' suit seeking recover of costs associated with cleanup of hazardous substances under CERCLA were time-barred. Syms v. Olin Corp. (C.A. 2, N.Y. 2005), 408 F.3d 95

Migratory Bird Treaty Act -- issue of whether Arkansas Game and Fish Commission Code 15.05 was preempted by Migratory Bird Treaty Act and related federal regulations ordered to be briefed. Arkansas Game and Fish Comm'n v. Herndon (Ark. 2005), No. CR05-356

migratory birds -- issue of whether Arkansas Game and Fish Commission Code 15.05 was preempted by Migratory Bird Treaty Act and related federal regulations ordered to be briefed. Arkansas Game and Fish Comm'n v. Herndon (Ark. 2005), No. CR05-356

noise -- noise attenuation study prepared at defendants' request provided sufficient information to support fair argument that mitigation measured defendants approved would reduce exterior noise levels on plaintiff's development below city's maximum exterior noise level. Sycamore Gardens Homeowners Ass'n v. City of Tustin (Cal.App. 20095), No. G034044

oil contamination -- United States had not waived its sovereign immunity for suit by private owner to recover monetary damages for its cleanup of past oil contamination on property that was formerly United States Navy base. Marina Bay Realty Trust LLC v. United States (C.A. 1, Mass. 2005), 407 F.3d 418

Open Spaces Law -- construction of development and restoration of historic landmark did not violate Open Spaces Law. Roosevelt Island Residents Ass'n v. Roosevelt Island Operating Corp. (N.Y.Tr.T. 2005), 7 Misc.3d 1029(A)

permits -- attack on validity of county zoning ordinance was attack on legislative decision, not reviewable by writ of certiorari. Dead Lake Ass'n, Inc. v. Otter Tail County, Minnesota (Minn. 2005), 695 N.W.2d 129

-- final order of Texas Natural Resource Conservation Commission granting BFI Waste Systems permit to vertically expand its municipal solid-waste landfill in Hidalgo county would be upheld. Citizens Against Landfill Location v. Texas Comm'n on Envir. Quality (Tex.App. 2005), No. 03-04-00390-CV

-- growth management plan and its conditional use permit standards were not unconstitutionally vague. Laughter v. Board of Cty. Comm'rs for Sweetwater Cty., Wyoming (Wyo. 2005), 110 P.3d 875

-- State Water Control Board properly issued Virginia Pollution Discharge Elimination System permit to Hanover County for discharge of treated wastewater from County's Totopotomy Wastewater Treatment Plant into Pamunkey River. Crutchfield v. State Water Control Bd. (Va.App. 2005), 612 S.E.2d 249

-- tearing out grass crop halfway through its productive life was not enforceable alternative to field burning as residue management technique under Washington Clean Air Act. Ted Rasmussen Farms, LLC v. State of Washington Dep't of Ecology (Wash.App. 2005), 110 P.3d 823

radioactive contamination -- mag-thor contamination caused by radioactive scrap metal that was purchased from United States Air Force had not caused any diminution in overall worth of owner's property. Hogan v. United States (C.A. 6, Ohio 2005), 407 F.3d 778

real estate -- claim was made that losses, including additional labor costs, were incurred to clean up hazardous materials that were not disclosed by seller. Franklin Reinforcing Steel Co., Inc. v. Kruss (Cal.App. 2005), No. B167565

recycling -- because defendant was purchasing unused tree bark from commercial lumber operation and storing it on his property for extended period of time with intent to resell it as mulch, he was in violation of Town's recycling ordinances. Town of Concord v. Duwe (N.Y. 2005), No. 78

rivers -- State Water Control Board properly issued Virginia Pollution Discharge Elimination System permit to Hanover County for discharge of treated wastewater from County's Totopotomy Wastewater Treatment Plant into Pamunkey River. Crutchfield v. State Water Control Bd. (Va.App. 2005), 612 S.E.2d 249

-- water right was properly relinquished after it was not used for five years. Motley-Motley, Inc. v. State (Wash.App. 2005), 110 P.3d 812

sewers -- Jefferson County Metropolitan Sewer District was authorized to take possession of permanent and temporary easements across property in order to construct and operate public sewers and drainage facilities. Golden Foods, LLC v. Louisville & Jefferson County Met. Sewer Dist. (Cal.App. 2005), No. 2004-CA-000688-MR

shorelines -- attack on validity of county zoning ordinance was attack on legislative decision, not reviewable by writ of certiorari. Dead Lake Ass'n, Inc. v. Otter Tail County, Minnesota (Minn. 2005), 695 N.W.2d 129

solid wastes -- because defendant was purchasing unused tree bark from commercial lumber operation and storing it on his property for extended period of time with intent to resell it as mulch, he was in violation of Town's recycling ordinances. Town of Concord v. Duwe (N.Y. 2005), No. 78

-- final order of Texas Natural Resource Conservation Commission granting BFI Waste Systems permit to vertically expand its municipal solid-waste landfill in Hidalgo county would be upheld. Citizens Against Landfill Location v. Texas Comm'n on Envir. Quality (Tex.App. 2005), No. 03-04-00390-CV

standing -- plaintiff established requisite standing to challenge Town Board's issuance of negative declaration finding that siting of temporary asphalt plant on Youngs Avenue landfill would not have significant environmental impact. In re Long Island Contractors' Ass'n (N.Y.App.Div. 2005), No. 2004-01279

toxic pollutants -- direct appellate review of interpretation of already listed toxic pollutant in response to primary jurisdiction referral was not within scope of section 1369(b). Narragansett Electric Co. v. United States Envir. Prot. Agency (C.A. 1, Mass. 2005), 407 F.3d 1

tree bark -- because defendant was purchasing unused tree bark from commercial lumber operation and storing it on his property for extended period of time with intent to resell it as mulch, he was in violation of Town's recycling ordinances. Town of Concord v. Duwe (N.Y. 2005), No. 78

wastewater -- State Water Control Board properly issued Virginia Pollution Discharge Elimination System permit to Hanover County for discharge of treated wastewater from County's Totopotomy Wastewater Treatment Plant into Pamunkey River. Crutchfield v. State Water Control Bd. (Va.App. 2005), 612 S.E.2d 249

water -- water right was properly relinquished after it was not used for five years. Motley-Motley, Inc. v. State (Wash.App. 2005), 110 P.3d 812

water pollution -- direct appellate review of interpretation of already listed toxic pollutant in response to primary jurisdiction referral was not within scope of section 1369(b). Narragansett Electric Co. v. United States Envir. Prot. Agency (C.A. 1, Mass. 2005), 407 F.3d 1

-- State Water Control Board properly issued Virginia Pollution Discharge Elimination System permit to Hanover County for discharge of treated wastewater from County's Totopotomy Wastewater Treatment Plant into Pamunkey River. Crutchfield v. State Water Control Bd. (Va.App. 2005), 612 S.E.2d 249

water remediation -- implementing regulation that set minimum ground and service water remediation standards was upheld as valid. In re Adoption of N.J.A.C. (N.J.App. 2005), 871 A.2d 711

water treatment plants -- potential socioeconomic effect of water treatment plant project was environmental consideration and was extensively analyzed in DSEIS and FSEIS. Bronx Envir. Health & Justice Inc. v. New York City Dep't of Envir. Prot. (N.Y.Tr.T. 2005), 8 Misc.3d 1002(A)

wildlife -- issue of whether Arkansas Game and Fish Commission Code 15.05 was preempted by Migratory Bird Treaty Act and related federal regulations ordered to be briefed. Arkansas Game and Fish Comm'n v. Herndon (Ark. 2005), No. CR05-356

-- People failed to establish that defendant possessed and sold Dwarf Caiman or any other species of Caiman Crocodilus, endangered species for which permit was required pursuant to NYS Environmental Conservation Law. People v. Dellecave (N.Y.Tr.T. 2005), 7 Misc.3d 1017(A)

-- Tennessee's interest in protecting its indigenous white-tailed deer population outweighed statutory ban's effect on interstate commerce. Bean v. Bredesen (Tenn.App. 2005), No. M2003-01665-COA-R3-CV

-- trial court properly issued writ of mandate requiring additional studies of cumulative impacts in Environmental Impact Report prepared by San Diego Unified Port District for coastal development project. Schmidt v. San Diego Unified Port District (Cal.App. 2005), No. D044671

zoning -- attack on validity of county zoning ordinance was attack on legislative decision, not reviewable by writ of certiorari. Dead Lake Ass'n, Inc. v. Otter Tail County, Minnesota (Minn. 2005), 695 N.W.2d 129

-- right of homeowners to participate in hearings and oppose zoning applications that affected their property was recognized and encouraged -- developer's abuse of process claim properly dismissed. Structure Building Corp. v. Abella (N.J.App. 2005), 873 A.2d 601



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