Gravel2Gavel Construction & Real Estate Law Blog

On May 19, 2017, the Ninth Circuit, United States v. Washington, affirmed the District Court’s ruling that the State of Washington, in building and maintain culverts that interfered with the Nineteenth Century Treaties with several Indian tribes, violated those treaties, which impelled the District Court to issue an injunction ordering the State of Washington to correct its “offending culverts.” The U.S. Supreme Court agreed to hear the State’s appeal, and on Monday, the Court held that, with Justice Kennedy’s deciding not to take part in the appeal, the Ninth Circuit’s ruling was affirmed by an equally divided court.

On May 24, the U.S. Court of Federal Claims decided one of what may be many cases involving the terrible flooding wrought by Hurricane Harvey in the Houston, TX region.  The Court of Federal Claims has divided thousands of pending claims into “upstream” and “downstream” categories, depending on whether the flooded properties were located upstream or downstream of two U.S. Army Corps of Engineers (Corps) flood control reservoirs that were constructed in the 1940s and 1950s. The case is In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs; however, the Court of Federal Claims’ order in this case applies to “all upstream cases.”

The Court of Federal Claims ruled

“The intensely factual nature of takings cases in flooding situations necessarily intertwines questions of jurisdiction and the merits. Thus the court has decided to exercise its discretion under [Rules of the U.S. Court of Federal Claims] 12(i) to defer ruling on the government’s motion to dismiss until trial.

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On May 18, the U.S. Court of Federal Claims decided the case of Gadsden Indus. Park, LLC v. U.S., ruling that the Environmental Protection Agency (EPA) was responsible for the “taking” of byproduct materials produced by the steel making process and later purchased by plaintiff Gadsden Industrial Park (GIP) in a bankruptcy sale. The Court of Federal Claims held that GIP was entitled to compensation in the amount of $755,494 (together with interest).

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On June 5, the U.S. Court of Appeals for the Seventh Circuit decided the case of Highway J Citizens Group, et al., v. U. S. Department of Transportation. The Seventh Circuit affirmed the District Court’s oral ruling that the Wisconsin highway renovation project was subject to the U. S. Department of Transportation (USDOT) National Environmental Policy Act (NEPA) “categorical exclusion” rule, meaning that the 141-page environmental report produced for USDOT for this small scale project–which determined that it was unnecessary to prepare a formal environmental impact statement–was legally sufficient. USDOT concluded that the construction of this project would not have any significant environmental impacts. Moreover, whenever someone opposes a project, the law only requires that an appropriate environmental study be prepared, and this lengthy report satisfies that standard.

On June 4, the U.S. Court of Appeals for the Seventh Circuit decided the case of John Crane, Inc., v. Shein Law Center, LTD and Benjamin Shein, et al., and affirmed the lower court’s ruling in favor of the defendants. The plaintiff filed a lawsuit in the U.S. District Court for the Northern District of Illinois alleging that the defendants were engaged in a conspiracy to defraud the plaintiff, a company that has manufactured products containing asbestos, and has been sued many times. In this case, the defendants filed lawsuits against the plaintiff in California, Pennsylvania and Texas, but the plaintiff alleged that the defendant law firm abused the discovery process regarding their clients’ exposure to asbestos from other manufacturers to “extort larger recoveries.” While the Court of Appeals acknowledges these claims are serious, it found that the District Court had no jurisdiction over the defendants, and this lawsuit must be dismissed.

On June 1, the U.S. Court of Appeals for the Fifth Circuit decided the case of State of Texas v. U.S., et al. The Court of Appeals held that the petition for mandamus filed by the State of Texas essentially seeking to compel the Nuclear Regulatory Commission (NRC) to establish a schedule for the operation of the Yucca Mountain, NV nuclear waste depository was untimely filed. The depository is very controversial in Nevada, and as a consequence, none of the many deadlines established by Congress have been met. As a result, considerable amounts of nuclear waste are held in Texas which the State of Texas argues should be transferred to Yucca Mountain, NV. However, the Court of Appeals notes that the 1982 Nuclear Waste Policy Act includes a “timeliness requirement,” which provides that any complaint must be filed in court no later than 180 days after the date the administrative decision, action, or failure to act, occurred. Therefore, the State of Texas finds itself in the posture of complaining about NRC actions that “came and went years ago,” and its resort to a continuing violations argument was, under these circumstances, unavailing.

On June 6, the U.S. Court of Appeals for the Second Circuit held, in the matter of In re: World Trade Center Lower Manhattan Disaster Site Litigation, that the District Court’s decision to dismiss, as being time-barred, many claims alleging tort and labor law claims arising from the plaintiffs’ participation in post -9/11 cleanup efforts must be vacated. After the initial dismissal, the New York Legislature enacted a special law which revived for one year all of these otherwise time-barred claims. However, in response the arguments made by the defendant Battery Park City Authority, the District Court held that this new law was unconstitutional under the New York State Constitution. The Second Circuit certified two questions on state law to the New York Court of Appeals, which opined that the law is constitutional. With this opinion in hand, the Second Circuit held that the Battery Park City Authority lacked the capacity to challenge this law as unconstitutional, and therefore its challenge must be rejected. The case was then remanded to the District Court.