“You Don’t Own Me:” Horses as Wards, Not Property

This post was written by staff member Tanner James.

Equine ownership plays a fundamental role in Kentucky's economy. Racing, training, breeding, and auctioning—all are decisions made by owners to utilize their horses—their property—for profit. But, what would happen if this paradigm shifted? What would happen if horses were no longer property? What would happen if horse "owners" were, instead, horse "guardians?"

The idea seems outrageous on its face. Horses, like other domesticated animals, have long been understood to be property, subject to their owner's control. This control is generally limited only by anti-cruelty statutes. Currently, in Kentucky, horses are defined as "livestock" and may be owned and/or leased. Ky. Rev. Stat. Ann. § 257.010(9) (a) (2009). However, some believe that the idea of horses becoming something more than just property is not only feasible, but also forthcoming.

In Defense of Animals (IDA), a non-profit organization based in San Rafael, California, has established The Guardian Campaign in an effort to change statutory language referring to animal "owners." Embrace Guardianship, The Guardian Campaign, http://www.guardiancampaign.com/promise.html (last visited Oct. 22, 2009). The proposed language would replace "owner" with "guardian," in an effort to "[promote] a more compassionate relationship between person and animal" and to "elevate a community's consciousness and way of thinking about non-human animals." Id. According to the IDA website, Boulder, Beverly Hills, and St. Louis are among several cities that have already adopted this change. Do You Live in a Guardian Community?, The Guardian Campaign, http://www.guardiancampaign.com/guardiancity.html (last visited Oct. 22, 2009). While IDA concedes that the change in terminology does not impact legal standing at this point in time, they imply (or hope) that the semantic change may inspire an attitudinal shift among people and potentially have legal significance in the future.

Some critics have taken notice of this implication and have expressed concerns. Kansas attorney Gregory M. Dennis, JD, notes that "'[o]wnership' and 'guardianship' are two distinct legal terms," and warns that if legal significance were assigned to the proposed-language change, there would be grave consequences. Gregory M. Dennis, Commentary: Animal Guardianship and Horses, http://www.thehorse.com/ViewArticle.aspx?ID=15021 (last visited Oct. 22, 2009).

First and foremost, one would "always have to act in the horse's best interest." Id. Additionally, a guardian, as opposed to an owner, would no longer be able to sell his or her horse because the horse would not be his or her property. Id. Financial consequences would also arise, potentially affecting insurance policies and tax benefits that are "predicated upon horses being property and assets belonging to their owners." Id.

How much of a threat is this terminology modification, though? Is there any indication that states will be making this shift any time soon? Not really. In fact, only one state has adopted the "guardian" language for animal owners. Rhode Island does, indeed, utilize the term "guardian" in its General Laws; however, the usage is purely semantic, and is the statute clarifies that a "guardian" has the "same rights and responsibilities of an owner," and that "both terms shall be used interchangeably." R.I. Gen. Laws § 4-1-1(a) (4) (2009).

Upon first learning about IDA's campaign, it is quite easy to be taken aback by the litany of potential consequences of such a change in legal designation. But one must temper those concerns with the current reality: after nearly a decade of advocating for this change, only a handful of cities and one state have jumped aboard; and, even they have only made a semantic change to their statutes. It is safe to assume that Kentucky (and the rest of the nation) will be slow to make this change, if they ever do.

Horse-owners, breathe a sigh a relief.

“The Conflict Between Local Fishing Industry and the Protection of Marine Fishery Resources in Recreational Fishing Alliance v. Evans”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Michael Russell. The following abstract was written by staff member Cara Houlehan.

Local fishing communities and federal wildlife conservation authorities share a mutual goal - to maintain a productive and healthy fishing environment. However, these groups have widely disparate views of how to accomplish this objective. Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35 (D.D.C. 2001) illustrates the perspectives of each of these parties with regard to federally mandated fishing retention limits. Specifically, members of a local recreational fishing industry challenged the 1999 Highly Migratory Species Fishery Management Plan for Atlanta Tunas, Swordfish, and Sharks (HMS FMP), regulations which were implemented by the U.S. Secretary of Commerce and promulgated by the National Marine Fisheries Service (NMFS). Plaintiffs contended that the HMS FMP set shark and tuna retention limits in violation of the Magnuson-Stevens Act and the Regulatory Flexibility Act (RFA). The United States District Court for the District of Columbia granted defendants' motion for summary judgment, however, holding that plaintiffs had failed to show that the HMS FMP violated either Act.

The Magnuson-Stevens Act was enacted in response to increased fishing of highly migratory species of fish, and includes both conservation and management measures to protect them. In part, the Act states that the Secretary of Commerce must assess the potential effects of conservation efforts on participants in affected fisheries and, if possible, lessen disadvantages to U.S. fishermen as compared to foreign competitors. Further, the Act promulgates National Standards to direct future conservation plans and subjects the actions taken by the Secretary of Commerce to judicial review. The RFA requires agencies to assess the effects of regulations on small business entities.

Plaintiffs in Evans argued that the HMS FMP violated the Magnuson-Stevens Act by falling short of several of the National Standards and the requirement to minimize foreign competition. Furthermore, they claimed that the retention limits violated the RFA because the NMFS failed to consider small business concerns or the economic impact of retention limits on the industry.

In granting defendants' motion for summary judgment, the court stated that plaintiffs had provided insufficient evidence and did not offer adequate justifications for any of their claims. The court showed deference to the Secretary of Commerce due to the strong governmental interest in conservation and regulation of marine resources. They acknowledged the reasonableness of the regulations and the broad discretion of the NMFS in setting the retention limits.

The result in Evans reveals not only the weight of governmental interests in the fishing industry, but the difficulty local fisheries face in collecting sufficient evidence to substantiate their claims with very limited resources. While the government must be receptive to the plight of the industry, local fisheries may ultimately benefit from stringent regulation through the protection of the species on which their livelihood depends. Though fisheries' primary concern is their economic welfare, Evans
suggests that perhaps the only way to reconcile the conflict is to employ a forward-looking approach and recognize the long-term benefits of conservation. Meanwhile, in order to best serve the fishing environment, Congress must aim to protect local businesses as well as the fish on which they depend.

Environmental Law Institute Releases Report Regarding School Indoor Air Quality

The following post was written by staff member Meghan Jackson Tyson.

In an effort to keep up with the No Child Left Behind Act, school officials are constantly reevaluating their curriculums and contemplating new and innovative ways to encourage learning and improve performance on standardized tests. In the era of the almighty test score, it is easy for school officials to stray away from the basics. However, in a recent report released by the Environmental Law Institute, getting back to the basics might be just the answer for which school officials are looking. Tobie Bernstein, Environmental Law Institute, School Indoor Air Quality: State Policy Strategies for Maintaining Healthy Learning Environments (2009), available at http://www.elistore.org/reports_detail.asp?ID=11357.

The report, released in September, states that there is a direct correlation between school indoor air quality and student productivity. Id. at 1-2. Specifically, the report identified three major areas of concern, which include "ventilation, moisture control and the control of other pollutant sources." Id. at 3. In an effort to improve air quality in school districts nationwide, the report explores four different strategies for state policymakers to consider.

First, the report suggests tackling the problem of poor air quality through state health laws. Id. at 6. Specifically, the report recommends the adoption of inspection laws to identify and correct the following problems in public schools: roofs and gutters, water intrusion, water damage/moisture control, HVAC systems, pest infestation control, animals in classrooms, chemicals, carpeting and temperature/humidity control. Id. at 9.

Second, the report discusses the use of state labor laws to regulate air quality in schools. Id. at 13. The report suggests the implementation of an OSHA-type law at the state level to ensure the safety of public workplaces, including public schools. Id. at 13.

The benefit of this strategy, as pointed out in the report, is that the state will qualify for federal funding so long as the state's standards meet basic federal requirements. Id. at 13.

Third, the report focuses on state education laws as a source for addressing air quality problems. Id. at 20. This strategy also involves a rigorous inspection process; however, unlike state health laws, education laws will require school districts to perform their own inspections. Id. at 20. The inspections will focus on roofing, building structural elements, plumbing, heating and cooling, and ventilation. Id. at 22.

Finally, the report suggests that local school districts should "develop and implement their own Indoor Air Quality Management Program." Id. at 28. This strategy is similar to the previous policy approach, and it also includes the development of an internal reporting system to oversee inspections and entertain complaints and suggestions from parents. Id. at 30.

As the report indicates, implementing these policies at the state level will improve air quality in school buildings, thereby improving the health of students and staff. This, in turn, will undoubtedly increase productivity and enhance student performance across the board.

“What’s Up Doc?: A Critique of Veterinarian Experts Addressing Toxic Torts in the Environment Under the Daubert Threshold Inquiry”

This note appearing in JNREL Vol. 21 No.2 was written by former staff member Michael Marsch and confronts the Daubert threshold inquiry in the context of toxic torts that affect farmers' livestock. Staff member Derek Leslie wrote the following abstract.

The Daubert threshold inquiry acts as the vehicle through which many courts address the principles behind the Federal Rule of Evidence 702, which requires that for expert testimony to be admitted, (1) the testimony must assist the trier of fact, and (2) the expert must be qualified to offer such testimony. The U.S. Supreme Court elaborated upon these principles by developing what is now known as the Daubert threshold inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry takes the shape of pre-trial motions in limine, where one party attempts to discredit and thus exclude the testimony of the other side's expert witness. The court, when considering whether scientific evidence is to be admitted, considers "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-94).

Unfortunately, the Daubert threshold inquiry actually heightens the standard required by FRE 702. Where FRE 702 essentially required that the expert be qualified and that her methodology be reliable, the Daubert threshold inquiry's fourth prong, general acceptance, requires more: that the science behind the testimony has wider acceptance in the scientific community. While it may sound innocent enough, it runs contrary to the evolving nature of science, and effectively closes the door on innovative and novel scientific techniques and evidence, despite its use by a qualified expert using a reliable methodology. Moreover, the inquiry relies upon the judge, who is in no better position than the jury to weigh the merits of competing scientific assessments, to sort out these difficult scientific questions.

In the cases involving toxic torts affecting farmers' livestock, the Daubert threshold inquiry often invites the exclusion of veterinarian testimony, effectively precluding the plaintiff-farmer from making his case to the jury. In these cases, courts often apply the Daubert threshold inquiry with respect to the conclusions rather than the methodology of the expert witness. The central premise of the plaintiff-farmer's case, causation, is left unsupported without an expert witness to expound that theory.

Because the Daubert inquiry invites misapplication, and tempts judges to decide factual questions about causation, it should be abandoned. The alternative, obviously, is to rely on FRE 702 itself. If a qualified witness' testimony will assist the trier of fact in coming to a determination, the witness should be allowed to testify in front of a jury. Of course, this also permits the other party to present their own qualified expert witnesses with their own conclusions, leaving the jury to resolve the problem of which parties' expert came to the sounder scientific conclusion. Here, in the case of toxic torts affecting livestock, the plaintiff-farmer would at least be able to present his argument with respect to causation. This approach simplifies the issues surrounding expert testimony, and results, ultimately, in a fairer trial.

Do the United States’ Food Labeling Laws, specifically those regarding Pork, violate International Law?

The following post was written by staff member Erin Boggs.

Although the United States and Canada share a border, that border has lately been characterized by a number of trade disputes. In addition to struggles over lumber, the United States recently began full-time enactment of a 2002 law that requires all pork processed in the United States to carry a label identifying its country of origin. See Country of Origin Labeling for Fish and Shellfish, 7 C.F.R § 60 ( 2009); Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Macadamia Nuts, Pecans, Peanuts, and Ginseng, 7 C.F.R. § 65 (2009). The law also requires this labeling for a number of other foods, with a few exceptions but the exceptions are an issue for another day. Today we focus on the effect this labeling has on the trade of meat between the United States and other countries, specifically pork, which can be traced to a single country of origin and is ineligible for a "mixed label." Country of Origin Labeling, or "COOL", also requires producers to separate the animals before processing. See id. Many U.S. pork producers ship young animals into the country and raise them in the U.S. for local slaughtering and processing. See

Bob Burgdorfer, New Label Law Shakes Up U.S. Meat Industry, REUTERS, Apr. 8, 2009, available at http://www.reuters.com/article/rbssFoodProcessing/idUSN0148935020090408?pageNumber=1&virtualBrandChannel=0. Canada claims that the regulation has severely harmed its hog farming trade, and in protest of the new labeling laws has taken the dispute to the World Trade Organization for settlement. Barbie McKenna, Canada Turns to WTO Over U.S. Labeling Law, THE GLOBE AND MAIL, Oct. 9, 2009, available at http://www.theglobeandmail.com/report-on-business/canada-turns-to-wto-over-us-label-law/article1316325/. The United States, on the other hand, argues that food labeling laws exist to protect consumers and it is a well-settled point of international law that such labels are permissible. See id.

The legality of the U.S. statute is, of course, in question. Advocates claim it will allow consumers to make more informed decisions as they purchase food, and will encourage them to buy food from the United States. Many others, however, see the law as entirely protectionist and claim it violates the North American Free Trade Agreement or "NAFTA". The World Trade Organization or 'WTO", in its arbitration, allows countries to enact measures to ensure food safety. These regulations are judged under the Sanitary and Phytosanitary Measures Agreement, or "SPS." Other regulations are measured against the Technical Barriers to Trade Agreement, or "TBT." The regulations at issue most likely fall under the TBT agreement, as SPS does not cover regulations designed to protect consumer interests, such as labeling. See World Trade Organization, Technical Barriers to Trade – Technical Information, http://www.wto.org/english/tratop_e/tbt_e/tbt_info_e.htm (last visited Oct. 22, 2009). The standards set by countries under TBT must be fair and equitable. Additionally, the standards discourage any measure that gives domestic products any unfair advantage. See id. In addition, TBT also prohibits the existence of measures disguised as protection of the consumer interest but whose purpose is actually protection of domestic products. See id. For a regulation to be invalid, the regulation can be more restrictive than necessary for the objective or when the regulation does not achieve a legitimate objective. See id. The U.S. might have a difficult time upholding its regulations under the second prong. The deleterious effect on Canadian pork is severe, and the USDA itself admits that the benefits from the regulation will be small and impact only that small section of consumers who care about the origin of their food. Such facts could lead to an inference of intentional protection of the domestic hog market. While this effect may be counterbalanced by the enormous trade deficit in other affected areas, for now this measure looks suspiciously protectionist.

The implications for the continuation of this law are striking. Canada's pork producers have already seen their exports to the United States fall by 60% as major U.S. pork manufacturers find it prohibitively expensive to import Canadian pork for processing in the United States. McKenna, supra. To comply with the labeling laws, the animals must be segregated by country of origin, which will both increase the price of the meat at market to consumers and cause changes in how the plants operate. See id. The more packers must segregate the meat, the more facility space they will need to keep up, and the more land will be eaten up by large-scale agriculture. The USDA estimates that the new law will require companies to spend $2.5 billion over the next year in initial costs, while maintenance will cost an additional $499 million annually. Ching Lee, Country-of-Origin Food-labeling Rules About to Take Effect, California Farm Bureau Federation, Sept. 24, 2008,available at http://cfbf.com/agalert/AgAlertStory.cfm?ID=1144&ck=4588E674D3F0FAF985047D4C3F13ED0D#. U.S. farmers, while relieved of domestic pressure, are concerned about competing with Canadian farmers on an international level. They fear that any decrease in international exports of U.S. pork because of cheaper Canadian pork will not be offset by the reduced imports into the United States. Clifford Krauss, NEW YORK TIMES, Oct. 12, 2009, Canadian Hog Industry Seeks Redress on U.S. Food-labeling Law, Oct. 12, 2009, available at http://www.nytimes.com/2009/10/13/business/global/13pigs.html. A number of U.S. farms also raise Canadian or Mexican animals only, and as the top processors phase out their purchases of pork these farms will struggle to compete. Burgdorfer,

supra. Additionally, if the WTO allows the U.S. law to stand, other countries could follow the United State's lead and force producers to segregate the animals coming into their countries. Id. The United States then risks the same problems befalling the Canadian farmers currently, in tandem with rising feed prices and low domestic and export sales. Krauss, supra. Granted, if all other countries engage in this segregation and labeling, these actions will level the international playing field. It does so, however, potentially at the expense of consumers, and the question of consumer safety versus consumer happiness is one that each individual legislature must answer. Mexico and Canada already predict a trade war in a market that had been stable, and is now in turmoil. A final question these nations must address is the effectiveness of such food labeling laws, in addition to what actually increases the cost to consumers. Does the segregation cause the problem, or the labeling?

Interestingly, the story seems to change with regard to beef. On Friday, October 17, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America or "R-CALF USA" sent a letter to the USDA vehemently protesting the actions of Canada in challenging the U.S. regulation before the WTO. R-CALF USA claims that Canada has been riding on an extraordinary U.S. trade deficit in which the U.S. imports more than $1 billion more than it exports. OpEdNews, Canada, Mexico $1.3 Billion Short of Claiming COOL Harm Group Tells USDA, USTR, Oct. 21, 2009, http://www.opednews.com/articles/Canada-Mexico-1-3-Billio-by-R-CALF-USA-091019-746.html (last visited Oct. 22, 2009). It seems that even within the U.S. cattlemen and pork producers may be at odds over the new regulations.

Ultimately, regardless of the WTO resolution, the dispute's most costly effects may be those on trade relations in general. Canada and the United States have historically had a notoriously friendly relationship, and continued actions that Canada can label "protectionist" may soon lead to retaliatory action. The larger question may well be whether the United States wants to remain committed to free trade in the food industry. If so, public relations on this issue may not be worth the benefit gained from the food labeling and segregation requirements.

“International Pollution: Can We Really Just Blame Canada?”

This comment was written by former Comments Editor Jamie Wilhite appearing in JNREL Vol. 21 No. 2. Staff member Andrew Leung wrote the following abstract.

In deciding Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9^th Cir. 2006), the Ninth Circuit extended liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to a foreign corporation when the disposal at issue occurred outside of the United States. "International Pollution: Can We Really Just Blame Canada?" explains the court's analysis and logic in making this revolutionary step for the environment.

The alleged polluting party in Pakootas is Teck Cominco Metals ("Cominco"), also a party to the infamous Trail Smelter Arbitration, a landmark case of international environmental law. Between 1906 and 1995, Cominco dumped smelting waste product ("slag") into the Canadian portion of the Columbia River. River currents then carried the slag and associated pollutants downstream into American territory, where the harm is alleged to have occurred. After investigation, the Environmental Protection Agency ("EPA") ordered Cominco to perform a remedial investigation/feasibility study of the area. When Cominco refused and the EPA failed to compel action, two members of the Colville Indian Tribes brought suit, seeking damages and injunctive relief.

CERCLA was enacted in 1980 by Congress as a remedial statute. "CERCLA promotes the cleanup of polluted areas and attaches strict liability for clean-up costs to those responsible for the pollution." The United States District Court for the Western District of Washington found that Cominco could be held liable either as a "generator" or an "arranger" potentially responsible party ("PRP"). The Ninth Circuit found that CERCLA liability could be extended to Cominco only if three conditions were satisfied: (1) a "facility" where the release or threatened release of hazardous waste occurred; (2) a "release" or "threatened release" of waste at aforementioned facility; and (3) a defendant that falls within one of the enumerated PRP categories.

The requirement of a "facility" is met when plaintiff demonstrates that defendant has a site where CERCLA hazardous materials are disposed of. The court found that Cominco's "facility" qualified because of the "extent of contamination in the United States associated with the Upper Columbia River." Although it in undisputed that Cominco released mining waste and byproduct into the Canadian portion of the Columbia River, courts have held that CERCLA liability only arises when there is a domestic release. To meet that requirement the Ninth Circuit found that an adequate domestic "release" occurred within American territory when chemicals and hazardous substances leached out of the slag after it had traveled downstream.

"Arranger" PRP liability applies only to "any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such party, by any other party or entity." Cominco argued that the act of disposing of one's own hazardous material falls without the scope of CERCLA "arranger" liability because it does not involve "any other party or entity." The Ninth Circuit rejected this interpretation, holding that it would seriously restrict CERCLA's reach and provide environmental agencies without recourse against companies that disposed of their own waste illicitly.

Pakootas v. Teck Cominco Metals, Ltd. is groundbreaking in that it is the first application of CERCLA to a foreign entity when the disposal of waste occurs outside of the United States. However, as a practical matter, CERCLA will not soon be extended to foreign entities across the globe whose activities will eventually have an effect on American soil.

“2006 Eminent Domain Ballot Initiatives: Citizens’ Voice or Crying Wolf?”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Ryan Daugherty. The following abstract was written by staff member Kyle Hermanson.

Citizens of the United States view the right to own and use land as a fundamental right. While strong property rights are a valued ideal, too strong a grip on this view could be injurious to society as a whole. In 2006, a handful of states passed, or nearly passed, radical reactionary ballot initiatives in response to the United States Supreme Court decision in Kelo v. New London, 545 U.S. 469 (2005). Citizens voted for these initiatives aiming to prevent their state courts from applying the broad definition "public use" used by the U.S. Supreme Court in Kelo in their states. In Kelo, the Supreme Court held that the promotion of economic development qualified as a "public use" under the Just Compensation Clause of the U.S. Constitution. However, the ballot measures passed in response to Kelo are far more potent then they appear, challenging the concept of land use planning as a whole.

Ballot initiatives can be a powerful tool for citizens. Measures authorizing direct popular participation in law-making are liberally construed, often cannot be vetoed by the governor, and allow the measure's sponsors to construct the initiative as they wish, so long as it complies with state conditions and procedures. The 2006 eminent domain ballot initiatives include either one or both of two components: a provision outlawing "Kelo- style eminent domain," and a provision that introduces a "pay-or-waive scheme." Outlawing "Kelo-style eminent domain" means banning the taking of private property or residences for use by a private or quasi-private entity and a "pay-or-waive" scheme requires the government to waive any newly enacted regulations on the use of land or pay just compensation to the land owner. These kinds of ballot initiatives were passed in Oregon and Arizona and defeated in Washington and California.

The consequences of these measures are beginning to be felt in the states that passed them. In Oregon, where the measure required that certain listed takings be construed in favor of compensation, there were over six billion dollars worth of unpaid claims against the state as of November 2006. In Arizona, the measure did not include an exception allowing takings for conservation purposes without required compensation. This forces the state government to compensate landowners for conservation-based restrictions on the use of their land. As a result, government officials will be fiscally unable to enforce new conservation regulations.

In Kentucky, state legislators have redefined eminent domain in response to Kelo as "the right of the Commonwealth to take for a public use." "Public use" in Kentucky means "ownership, possession, occupation or enjoyment of the property by a local government entity; removal of blighted properties; or for use by a public utility," and "[p]rohibits the transfer of private property to another private entity for economic development purposes." This clarification makes a ballot initiative clearly unnecessary, as state statute prevents a "Kelo-style" invasion in Kentucky. However, property protections in Kentucky could use further reform, as the definition of "blighted area" is too broad, including such subjective features as inadequate street layout or improper subdivision. Furthermore, the legislature has not clearly delineated allowable or prohibited public uses of property subject to eminent domain. Kentucky's responded with moderation to Kelo, but the people may still want stronger provisions.

“Save Our Mountains: The Impact of Save Our Cumberland Mountains v. Kempthorne in Encouraging NEPA Efficiency”

Former staff member Lindsay Yeakel wrote this comment appearing in JNREL Vol. 21, No. 2. The following abstract was written by staff member Nick Kloiber.

On January 1, 1970, Congress enacted the National Environmental Policy Act ("NEPA"), requiring that any proposed action involving federal funds or permits must be approved by the proper federal agency, which may require an environmental assessment (EA) or a published environmental impact statement (EIS). The overall effect of this law has required agencies to consider environmental concerns in their decision making process.

In Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006), the question was raised about how far agencies must go to be in compliance with NEPA. The plaintiffs challenged an agency's ruling of no significant impact in relation to a coal mining permit application, arguing that the decision was arbitrary and that EA issued by the Agency was incomplete in that it didn't consider sufficient alternatives to the proposal.

The Sixth Circuit held that the agency met the requirements of NEPA in reaching its decision of no significant impact. The agency considered environmental impact, issues of resulting damage if the permit were issued, and looked at studies of comparative mining operations to decide that the current application would have no significant impact, and thus did not abuse its discretion or reach the decision arbitrarily.

The Court did, however, side with the plaintiffs in holding that the agency failed to consider sufficient alternatives to the proposal. The agency had argued it had a binary choice between granting and denying, whereas NEPA required it to study alternatives available. The Court reasoned that the agency could limit the scope of their review to reasonable alternatives, while not limiting it to a binary choice alone.

The decision in Kempthorne provides a better understanding of just what an Agency must do to satisfy the requirements of NEPA. It encourages companies seeking permits to do environmental studies prior to submitting an application, allowing the agency to incorporate the information into an EA without having to spend time and money on a full EIS. It also requires all agencies to look at reasonable alternatives to the proposal they are evaluating, instead of just granting or denying the application. This helps to ensure EA's accomplish their goals and that agency findings of no significant impact aren't arbitrary but are backed up by not just research but by consideration of alternatives. The overall cost, time, and effort savings encouraged by Kempthorne are a win-win for agencies, the environment and industry alike.

“King Fish: Pushing the Limits of Judicial Authority in National Wildlife Federation v. National Marine Fisheries Service.”

Former staff member Stuart Lipke wrote this comment appearing in JNREL Vol. 21 No. 2. Staff member Matt Cocanougher wrote the following abstract.

The salmon industry in the Northwest United States serves many different purposes at the same time. This fish has historically been a part of Native American religion and has currently become a major source of income for the area. Unfortunately, operation of the Colombia River's hydroelectric dams has begun to kill many of the salmon, as they swim into the dam's turbines. Because of this problem, several different species of salmon have been added onto the list of endangered species protected by the Endangered Species Act ("ESA").

National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005) (per curiam) was a result of a decision by an Oregon federal district court to grant an injunction which required the dam administrators on five dams along the Snake River to increase spill over as a way to protect the salmon. The dam administrators, Federal Columbia River Power System ("FCRPS"), were forced to follow four procedures outlined in the ESA. FCRPS was first obligated to consult an agency to determine whether an action is likely to threaten an endangered species. Next, the ESA requires that the agency which is actually carrying out the consultation use the best scientific and commercial data available. After the first two steps, the consulting agency issues a biological opinion outlining the anticipated impact on the species and the future risk to the species. Finally, the consulting agency makes a jeopardy determination which looks to the potential cumulative effects of the proposed action coupled with the current status of the species or habitat.

In this case, the National Wildlife Federation (NWF), along with the State of Oregon and others brought suit in federal court alleging that the National Marine Fisheries Service ("NMFS"), the consulting agency for FCRPS, failed to conduct a proper jeopardy determination during their consultation for their biological opinion of 2004. After finding several failures on NMFS's part, the district court granted a preliminary injunction, ordering FCRPS and other agencies to increase summer spill for several dams. NMFS appealed this preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit rejected NMFS's arguments on appeal. It held that when Congress passed the ESA, it decided to tip the balance in favor of the endangered species in the event of hardships between the species and other industries. Next, the court found that the district court did not abuse its discretion in this case because it reasonably found that irreparable harm would result from inaction, and its actions were in furtherance of the ESA. Lastly, the court concluded that the district court's argument was narrowly tailored to fit the circumstances at hand, especially as NMFS failed to raise this issue during the injunction hearing.

This case highlights two key issues. The first is whether the district court's proactive role in granting the preliminary injunction crosses over into the realm of the executive branch's enforcement power. The second is what would happen if the district court actually determined that breaching the dams was necessary to carry out the ESA, which has not been done by a court before. Both of these issues remain politically contested and their resolution will have a big impact on the salmon industry.