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- Administrative Procedure Act -
The government's stated fear of burdensome or improper discovery in a case seeking various environmental remedies does not warrant mandamus relief in the absence of a single specific discovery order. There is no authority for the idea that agency officials' routine responses to discovery requests in civil litigation can constitute agency decision-making subject to the Administrative Procedure Act. Allowing the usual legal processes to go forward also will not threaten the separation of powers in any way not correctable on appeal.
U.S. v. U.S. District Court for the District of Oregon - filed July 20, 2018, Cite as 2018 S.O.S. 18-71928
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- CEQA -
A project's visual impact on a surrounding officially-designated historical district is appropriate aesthetic impact review under the California Environmental Quality Act. Traffic significance thresholds do not necessarily shield a city from having to conduct an environmental impact report. Fact-based comments of residents and city officials can support a fair argument that unusual circumstances might render the thresholds inadequate to capture the impacts of congestion from a proposed development project.
Protect Niles v. City of Fremont (Rich) - filed July 16, 2018, publication ordered Aug. 9, 2018, First District, Div. Five
Cite as 2018 S.O.S. 3910
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A county's issuance of a well permit is a ministerial action when the county ordinances require that a permit be issued if the well complies with county and state standards, thus the action is exempt from California Environmental Quality Act review.
California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery) - filed June 28, 2018, publication ordered July 27, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 3701
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- Easements -
A suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law. A lawsuit seeking a declaratory judgment as to whether a local government entity had acquired a full railway easement arose out of federal law because the resolution of the dispute would turn on an interpretation of the Trails Act and because the government has a strong interest in facilitating trail development and preserving established railroad rights-of-way for future reactivation of rail service. A property owner whose land abuts a rail corridor lacked standing to pursue a declaratory judgment quieting title to the corridor where the property owner has no property interest in the corridor itself. The Trails Act preserves—rather than converts—the existing railroad easement, and creates an additional recreational trail easement.
Hornish Joint Living Trust v. King County - filed Aug. 3, 2018
Cite as 2018 S.O.S. 16-35486
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- Environmental Protection Agency -
Federal Insecticide, Fungicide, and Rodenticide Act Sec. 346a(h)(1) does not "clearly state" that an order obtained pursuant to Federal Food, Drug, and Cosmetic Act Sec. 346a(g)(2)(C) in response to administrative objections is a jurisdictional requirement for judicial review of an Environmental Protection Agency decision on the tolerance level for a pesticide. There was no justification for the EPA's decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children. The EPA cannot refuse to act because of possible contradiction in the future by evidence.
League of United Latin American Citizens v. Wheeler - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-71636
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- Kootenai National Forest -
A challenge to a decision by the U.S. Forest Service to approve a land management project in the Kootenai National Forest based on the Forest Service's failure to consult with the Fish and Wildlife Service about the project's impact on the Canada lynx was rendered moot by the Forest Service's consultation with the Fish and Wildlife Service while an appeal was pending. The Forest Service's approval of a project failed to comply with the Motorized Vehicle Access Act where the Forest Service did not analyze whether the project would increase the total linear miles of permanent roads within areas outside the recovery zones that grizzly bears sometimes frequent.
Alliance for the Wild Rockies v. Savage - filed July 26, 2018
Cite as 2018 S.O.S. 16-35589
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- National Forest Management Act -
The U.S. Forest Service acted arbitrarily and capriciously in deviating from the standards in the governing forest plan since such standards are binding limitations on Forest Service's activity. The Forest Service's decision to adopt a new definition of "old forest habitat" for the Lost Creek Project area was arbitrary and capricious, and a violation of the National Forest Management Act. The Lost Creek Project's minimum road system designation was not arbitrary or capricious where the Forest Service fully explained its decision in selecting an alternative and considered each of the factors listed under 36 C.F.R. Sec. 212.5. Forest Service did not violate the National Environmental Policy Act by improperly incorporating the wildlife conservation strategy amendments or the wildlife conservation strategy amendments draft environmental impact statement in analyzing a project's cumulative, direct and indirect effects on vegetative resources and wildlife.
Alliance for the Wild Rockies v. United States Forest Service - filed Aug. 13, 2018
Cite as 2018 S.O.S. 16-35829
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- Premises Liability -
A property owner has a duty to protect against dangers posed by discrete conditions on the property from which dangerous insects emanate. Golf course operators are not exempted from exercising reasonable care to protect their patrons against the foreseeable risk posed by yellow jacket nests on their premises.
Staats v. Vintner's Golf Club, LLC - filed Aug. 1, 2018, First District, Div. One
Cite as 2018 S.O.S. 3804
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- Raker Act -
The congressional intent behind the Raker Act, was to flood the Hetch Hetchy Valley through the permanent creation of a dam on federal lands. The act's broad preemption protections for state laws may not eviscerate those components of a law purposefully enacted by congress.
Restore Hetch Hetchy v. City and County of San Francisco (Modesto Irrigation District) - filed July 9, 2018, publication ordered Aug. 1, 2018, Fifth District
Cite as 2018 S.O.S. 3797
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- Respondeat Superior Theory -
As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.
Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823
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- Statute of Limitations -
The federal catchall statute of limitations in 28 U.S.C. Sec. 1658(a) applies to private suits alleging violations of Sec. 303(c) of the Servicemembers Civil Relief Act.
McGreevey v. PHH Mortgage Corporation - filed July 26, 2018
Cite as 2018 S.O.S. 16-36045
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