Judicial update: How environment issues are faring in the courts

Published June 1, 2000

Public Lands Council v. Babbitt

The U.S. Supreme Court has heard oral arguments challenging regulations, proposed in 1995 by Interior Secretary Bruce Babbitt and set to go into effect this spring, alleged to violate the Taylor Grazing Act.

The three proposals challenged in Public Lands Council vs. Babbitt would limit the acreage available for grazing and affect ownership of range improvements and qualification for grazing permits.

The Public Lands Council is joined as plaintiffs in the suit by the American Farm Bureau Federation, American Sheep Industry Association, Association of National Grasslands, and National Cattlemen’s Beef Association.

Under the Taylor Grazing Act, a portion of federal rangeland managed by the Bureau of Land Management (BLM) is designated each year for grazing. In the past, the acreage available for grazing was decided jointly by the BLM and the rancher. But “under the new regulations, there could be an arbitrary decision by land mangers that might not have any basis,” said Julie Quick of the National Cattlemen’s Beef Association.

The second of Babbitt’s proposals would give the federal government ownership of any improvements–wells, fences, or irrigation, for example–that a rancher makes on the grazing land. Under the Taylor Act, ownership remains with the rancher; if a new rancher wins the grazing permit, ownership of the improvements transfers to the new rancher. Banks have used the improvements as collateral for loans to ranchers.

Babbitt’s third proposal would allow people not in the grazing business to apply for grazing permits. Opponents fear that anti-grazing environmentalists would apply for and win permits and then not graze, violating the pro-grazing spirit of the Taylor Act.

Status: Decision expected before the Court recesses this summer

For more information, see the Web site of the Public Policy Center of the National Cattlemen’s Beef Association at http://hill.beef.org/proprts/plcetal.htm.

The Natural Bridge and Arch Society v. National Park Service

At issue is the Rainbow Bridge Natural Arch near Lake Powell in southern Utah. The National Park Service (NPS), responding to assertions by native American groups that the natural arch is sacred, has denied public access to the arch.

“The national parks are to be available to all of the American people regardless of religion,” said William Perry Pendley of Mountain States Legal Foundation, which represents The Natural Bridge and Arch Society.

The Society, a nonprofit group committed to the protection and study of natural arches, opposes access restrictions because they are based on religion. The Society and its members are asking the U.S. District Court in Utah to declare the NPS’s policy unconstitutional and bar its application.

The First Amendment to the Constitution provides, “Congress shall make no law respecting an establishment of religion . . . ” Referred to as the Establishment Clause, this provision bars Congress from “taking sides” on religion.

In 1988, the U.S. Supreme Court ruled that the Establishment Clause prevented the U.S. Forest Service from denying public use of federal lands so as to ensure that those wishing to worship there could do so in private. In 1980, in a case involving Rainbow Bridge, the U.S. Court of Appeals for the Tenth Circuit reached the same conclusion: Public lands must remain open to all members of the public regardless of religion.

Status: Pending in District Court

Idaho v. National Forest Service

A U.S. District Court judge has dismissed the lawsuit brought by the state of Idaho over the National Forest Service’s (NFS) plan to declare 40 to 60 million acres of National Forests “roadless.” U.S. District Judge Edward Lodge ruled the process of public review had not proceeded far enough for Idaho to challenge the plan in court.

Status: Case closed

Chenoweth et al. v. Clinton

The U.S. Supreme Court rejected without comment the case Rep. Helen Chenoweth-Hage (R-Idaho) and others brought challenging President Clinton’s authority to designate “Heritage Rivers” via executive order. (See “Congressmen appeal to Supreme Court on AHRI,” Environment & Climate News, March 2000.) The suit alleged that only Congress had legislative power to declare such a program.

Status: Case closed

Environmental Protection Agency v. Tampa Electric Co.

Tampa Electric Co. has settled its lawsuit with EPA by agreeing to pay a $3.5 million fine, invest $10 million in pollution control mechanisms, and convert one power plant from coal to natural gas. The total cost of the settlement to the company will be “approximately $1 billion” over 10 years, said Carol Browner, administrator of the U.S. EPA.

Tampa Electric is the first of seven coal-burning electric utility companies sued by EPA in November 1999 to settle. EPA has claimed the companies were required by the Clean Air Act of 1990 to put in new pollution control equipment when they made repairs to existing equipment; the companies failed to do so. The suit seeks hefty fines as well as the installation of new equipment to control emissions of sulfur dioxide, nitrogen oxide, and other particulates that allegedly contribute to smog.

The other six utility companies involved in lawsuits with EPA are American Electric Power, Cinergy, FirstEnergy, Illinois Power, Southern Company, and Southern Indiana Gas & Electric.

Status: Consent judgment entered by the Circuit Court of the Thirteenth Judicial Circuit in Tampa, Florida; other cases pending

Hawaii County Green Party et al. v. W.J. Clinton et al.

Ten environmental groups and a member of the Hawaii County Council filed suit on February 29 in federal district court in Honolulu against the U.S. Navy. The suit alleges the Navy is violating environmental laws with its testing and proposed deployment of a new low-frequency active sonar system.

Plaintiffs seek an injunction to stop the Navy from making further “irreversible or irretrievable commitments” to deployment of the sonar until an environmental impact statement is complete and found adequate by a federal court. The suit also seeks to enjoin the National Marine Fisheries Service from processing a Navy application for a deployment permit until the Navy is in compliance with environmental laws.

Increased concern about the safety of the low-frequency sonar system emerged during testing off the island of Hawaii in March 1998. The plaintiffs allege the decibel level of the tests caused identifiable harm to the area’s ecosystem. Whale watch captains reported the humpback whales to be leaving the testing area. A snorkeler in the water during a broadcast emerged with symptoms a doctor described as similar to those displayed by trauma patients. Abandoned whale and dolphin calves were found in the area of the Navy testing.

The low-frequency active (LFA) sonar system is designed to detect submarines too quiet to be found with passive sonar. The system uses specialized sounds and echo detection methods to maximize the range at which submarines can be detected and tracked.

In addition to President Clinton, as Commander in Chief of the Armed Forces, the suit names as defendants the U.S. Secretaries of Defense, Navy, and Commerce and three representatives of the National Marine Fisheries Service.

The defendants have filed a motion to dismiss the case on standing and ripeness grounds. Plaintiffs’ response to that motion is due in mid-May, with a hearing on the motion scheduled for June 13. The defendants have also filed a motion for a protective order, which effectively prevents any discovery until the June 13 hearing.

For more information

including the complete text of the complaint, visit the Ocean Mammal Institute’s Web site at http://www.ilhawaii.net/~light/lfaindex.html.