Gravel2Gavel Construction & Real Estate Law Blog

On September 1, 2015, the U.S. District Court for the Western District of Texas issued a ruling which vacates the April 2014 listing of the Lesser Prairie Chicken (LPC) as a threatened species pursuant to the Endangered Species Act.  The case is Permian Basin Petroleum Association, et al. v. Department of the Interior, et al. The lawsuit challenging the listing was filed on June 9, 2014.  The plaintiffs argued, and the District Court agreed, that the U.S. Fish and Wildlife Service was obliged to evaluate the LPC rangewide plan in accordance with the agency’s 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions, and it failed to do so.  Accordingly, the listing of the LPC was arbitrary and capricious, and must be vacated.

On August 30, 2015, U.S. District Court Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas issued an opinion dismissing the Government’s lawsuit asserting that Thomas Lipar, a real estate developer, violated the Clean Water Act by discharging fill material into jurisdictional wetlands without a permit. According to Judge Hughes, the Government failed to establish that the wetlands in issue were jurisdictional waters.  In addition, Judge Hughes determined that EPA acted in bad faith, and throughout the 10 years these sites have been under investigation or in litigation, it has been “intractable, uncooperative and defiant”; indeed, its behavior has been “reprehensible”.  Consequently,  Judge Hughes has sanctioned the Government, requiring the United States to pay the defendant and the other defendant’s the reasonable attorney’s fees they incurred in defending this lawsuit.  The case is U.S. v. Lipar, et al.

On August 27, 2015, the U.S. Court of Appeals for the Eighth Circuit issued a Clean Water Act (CWA)  ruling affirming the decision of the lower court that STABL, Inc. the former owner and operator of a rendering plant in Lexington, Nebraska, violated the CWA and the Nebraska Environmental Protection Act.  The case is U.S., et al., v. v. STABL, Inc., formerly known as Nebraska By-Products, Inc.  This decision points out the heavy burden confronting defendants who argue that their discharge monitoring reports (DMRs) are unreliable, a burden the defendant was unable to overcome. Continue Reading ›

On August 21, 2015, the U.S. District Court for the Northern District of Texas, presiding over a Clean Air Act (CAA) enforcement proceeding, granted the defendants’ motion to dismiss several alleged violations of the CAA on the basis that the prosecution of these violations was time-barred.  The case is U.S. v. Luminant Generation Company, LLC, and Big Brown Power Company, LLC.

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On August 27, 2015, the U.S. District Court for the District of North Dakota, Southeastern Division, issued a preliminary injunction enjoining the new rule jointly promulgated by EPA and the U.S. Army Corps of Engineers redefining “Waters of the United States,” which is a linchpin of federal regulatory jurisdiction under the Clean Water Act. Twelve States, and representatives of New Mexico executive departments filed a lawsuit challenging the new rule, and also requested the issuance of a preliminary injunction.  Ruling that the new rule has only “an attenuated connection to any permitting process”, the District Court held that it had jurisdiction to hear this case, and that the plaintiffs demonstrated a substantial likelihood that they would succeed on the merits and met the other criteria necessary to obtain a preliminary injunction.  The case is State of North Dakota, et al., v. EPA and U.S. Army Corps of Engineers.