Lawyers and Legal Issues in the Gulf

Following the Deepwater Horizon blowout and subsequent spill, which turned into the worst environmental disaster in United States history, the Gulf was not only teeming with oil but also with attorneys to address the many causes of action flowing from the spill. The obvious harm that resulted to workers, community and environment must be addressed and our legal system is necessarily involved. There are a wide range of lawsuits that continue to be filed in the aftermath of this spill. The families of the deceased oil rig employees have wrongful death claims, and those crewmembers who survived may have injury claims, including possible emotional distress claims. The thousands of fishermen, crabbers, shrimpers and oyster harvesters who rely on the healthy Gulf coast waters for their livelihoods also have a legal claim. In addition, property owners along the coast, restaurants and even vacation renters will want reimbursement for economic damages. Finally, environmental organizations have filed suit for the extensive ecological harm to the Gulf and coastal wetlands.

Several environmental groups have already met to coordinate legal issues and lawsuits. Currently, there are seven Endangered Species Act cases, three Clean Water Act cases, five Outer Continental Shelf Lands Act cases, and three National Environmental Policy Act cases, amongst other environmental lawsuits in preparation or already filed. Here is a "Surfrider on Location" video description of the scene along the coast, which is the subject matter of these suits aimed at protecting and restoring coastal and ocean resources. There is likely still an excess of 100 million gallons of oil in the Gulf waters and the Coast Guard is regularly finding oiled animals and tar balls, including this one-ton tar ball below:



Surfrider Foundation intends to be part of the public process for addressing Natural Resources Damage Assessment, which will also have a number of legal issues encompassed in the NRDA procedure. The NRDA process for the Deepwater Horizon catastrophe is already underway. Under the Oil Pollution Act of 1990, the three steps in an NRDA process are: 1) Preliminary Assessment, 2) Injury Assessment/Restoration Planning, and 3) Restoration Implementation.

During the injury assessment and restoration planning of NRDA, natural resources agency appointed Trustees must determine potential restoration projects. Trustees must consider a reasonable range of alternative approaches, addressing both primary and compensatory restoration, including a “natural” approach without human intervention. “Active” primary restoration approaches would conversely involve direct intervention, and could include removing residual contamination, or replacing vegetation and essential species. NRDA Trustees must then evaluate the alternatives, considering 1) costs, 2) the extent the alternative is expected to return conditions to the baseline and compensate for interim loss, 3) the alternative’s expected chance for success, 4) the chance the alternative would help avoid future injury, or future collateral injury, 5) the extent the alternative would improve multiple resources, and 6) the alternative’s effects on health and safety.

In addition to litigation scoping and engagement, Surfrider Foundation is actively working to support a moratorium on any new drilling through support of the No New Drilling Act and the West Coast Ocean Protection Act. Additionally, we are asking the Senate to follow the House of Representative's lead in passing the CLEAR Act to address necessary reforms to current drilling regulations and by creating an Ocean Resources Conservation and Assistance fund.

Clean Water Act Case Study: Surfrider Foundation’s Early Victory against Humboldt Pulp Mills

By Surfrider Summer Legal Intern Staley Prom

Surfrider Foundation, with its nearly 55,000 members and 90 chapters world-wide, has been protecting oceans, waves, and beaches for over 25 years. Today’s members may know little or nothing about Surfrider’s first major victory in the early ‘90s, fighting major polluters in Humboldt Bay, California, near the popular North Jetty surf spot. Surfrider’s litigation resulted in one of the largest Clean Water Act settlements in the United States at that time.


In the late ‘80s, two pulp mills on Humboldt Bay’s northern peninsula, owned by the Louisiana-Pacific Corporation (“L-P”) and the Simpson Paper Company (“Simpson”), discharged a combined 40 million gallons of untreated wastewater per day into the Pacific Ocean. The mills used chlorine in their “Kraft” bleaching process to turn brown pulp into white paper. The EPA allowed the mills to operate under modified National Pollutant Discharge Elimination System (NPDES) permits, issued in 1987. However, even with the waivers, the mills quickly began violating these permits. In late 1988, the EPA issued complaints and ordered the mills to clean up their act and comply with their permits. Meanwhile, area surfers and beach goers complained of foul colored and foul smelling water near the mills, and reported skin and eye irritation, nausea, and bacterial illnesses; scientists found traces of highly toxic chemicals, dioxin and furan, created in the chlorine bleaching process, in smokestack emissions and in fish and crab samples near the mills’ discharge outfalls.

In May of 1989, following a year-long research effort which determined that the mills’ discharges exceeded limitations for pH, chronic toxicity, total suspended solids, sanitary waste, black liquor discharges, ammonia nitrogen, and rates of dilution, discoloration, and natural light, Surfrider filed suit against the mills using the Clean Water Act’s citizen suit provision (four months after filing its Notice of Intent to Sue with the EPA). Surfrider claimed the mills were not complying with the terms of their NPDES permits pursuant to the Clean Water Act (CWA) §402, U.S.C. §1342, and further claimed this amounted to a violation of CWA §301(a), 33 U.S.C. §1311, which prohibits the discharge of pollutants from a point source into navigable waters of the U.S. unless in compliance with the Act. The specific violations Surfrider identified were taken directly from the discharge monitoring reports (“DMRs”) and non-compliance reports (“NCRs”) the defendants submitted pursuant to federal reporting requirements and defendants’ NPDES permits. Surfrider additionally claimed that both mills were violating consent decrees (settlements) they had entered into with the U.S. EPA in 1983 after alleged civil violations of the CWA. Surfrider sought to shut down the mills until they complied with their permits, and over $25 million in civil penalties.

Two months later, in July, 1989, the EPA filed suit against both mills; and in September, 1989 the U.S. District Court for the Northern District of California consolidated the Surfrider and EPA suits. Nearly two years later, in July, 1991, Surfrider settled with both defendants; and in September, 1991, both Surfrider and the EPA entered into consent decrees with the mills.

The "Humboldt Area Recreation Enhancement and Water Quality Fund" was a result of Surfrider's litigation efforts and a settlement with the mills. Both mills contributed $175,000 ($350,000 total) in funds to improve recreational and environmental resources. Surfrider used part of these funds to implement and maintain a shower and emergency telephone at the North Jetty, as well as to improve the area’s Samoa Dunes National Recreation Area initially, and the remainder of the settlement award was disbursed through the Humboldt Area Foundation. Humboldt Area Foundation permanently manages the fund, which makes interest available in perpetuity to fund grant projects meeting the spirit of the settlement agreement. A portion of the fund was initially used to evaluate and monitor the mills’ progress in cleaning up operations, and now funds projects to benefit marine or aquatic recreation and water quality in the area. To date, grants total $127,000, and have gone to projects which include: sand dunes restoration and educational projects, summer youth programs and surf camps, and swimming and boating safety programs. For a list of all grants made through the “Humboldt Bay Recreation Enhancement and Water Quality Fund,” click here.

The Surfrider and EPA consent decrees required the mills to each pay $2.9 million (for a total of $5.8 million), which at the time, were the third largest penalties levied by the EPA for CWA violations, and the largest in the Western U.S. The consent decrees also required the mills to implement treatment measures or process changes to stop their CWA violations, complete a toxicity treatment study, and install a treatment system to solve the toxicity problem. L-P was required to extend its existing outfalls (where the mill’s effluent is released into the ocean) sufficiently to keep its effluent away from recreational areas, and Simpson was required to extend its outfalls unless additional treatment could render its effluent safe for human contact. Additionally, the L-P agreement required L-P to analyze the feasibility of further changes in its mill’s processes to reduce the use of chlorine in its pulp bleaching process.

This case study illustrates the power of the Clean Water Act’s citizen suit provision for use by organizations such as Surfrider Foundation to fight large industrial water polluters. When Surfrider filed suit, the Foundation had only around 5,000 members, yet was able to successfully fight for the public interest and stop the pollution of a precious California coastal resource. Surfrider’s lawsuit drew national attention to the matter and prompted the EPA to intervene, thereby utilizing the federal government’s resources and expertise in the litigation. Moreover, settlement was a victory for Surfrider, as it provided the opportunity to obtain $350,000 to fund extensive clean water and recreation enhancement projects in the Humboldt Area, which continue today.

If you live in the Humboldt Bay area and would like to get involved with Surfrider’s Humboldt Chapter, please visit: http://surfriderhumboldt.wordpress.com/

Photo courtesy of Copyright (C) 2002-2010 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.Californiacoastline.org

Supreme Court Holds that the Public Trust Rules --- No Takings Here

Surfrider Foundation and our pro bono counsel from McDermott Will & Emery celebrate a substantial victory from the recent decision of the United States Supreme Court, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, upholding the constitutionality of the Florida state's beach management program and solidifying public beach access rights. The court unanimously supported the respondent, Florida DEP, and affirmed the lower court ruling of "no takings" of private property without just compensation in this instance. The court ruled 8-0, with the abstention of Justice Steven (who reportedly owns property on the Florida coast), to uphold the Florida Supreme Court's decision. Surfrider Foundation issued an amicus brief in support of public trust beach access rights in this case and to ensure against a ruling in favor of the private property owners. Surfrider recognized that had the ruling been in favor of the private homeowners, the concept of the public beach could have slowly vanished along with the eroding beaches around the country.



The Supreme Court held that Florida Beach and Shore Preservation Act does not deprive the petitioners of the littoral property rights without just compensation, and that petitioners did not suffer a "takings" through the state government's erosion response actions. The court held that Florida state law provides that an avulsive event, or sudden addition of sand, accrues to the state and public trust resources. Justice Antonin Scalia, known for his strict interpretation of U.S. Constitution and state law, writes for the Court:

"In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line)."

Therefore, anytime there is an avulsive event in Florida (including a beach renourishment project), the homeowner's private right of accretion does not attach. The Florida Supreme Court was affirmed in its decision to treat the right of accretions as "future contingent interest, not a vested property right" that could invoke the Takings Clause of the Fifth Amendments of the U.S. Constitution. The High Court opinion explains that a beachfront landowner would normally benefit by the slow process of accretion through the extension of the property boundary for all land that has accreted (and would, vice versa, lose land for erosion). However, in this case the publicly-funded beach nourishment project will not be considered an extension of private land, but the new sand will be available to the public, as it is considered part of the public trust. Additionally, the right of contact, as a littoral right for the beachfront property owners, does not attach in any exclusive manner for the residents.

Specifically, the "Judicial Takings" doctrine was the subject of debate among the Justices. Even though the majority held that there is no takings in this Florida case under the rules of the Florida Beach Management Program, four Justices stated that there can still be an instance where the "judicial takings" doctrine may apply in the future. The concurring Justices Kennedy and Sotomayor, opined that the Due Process Clause of the Constitution will likely foreclose any opportunity for a court to make the error of judicial takings and will alleviate the need to utilize the doctrine in any judicial decision-making. They also warn that the judicial takings doctrine could be abused and end up giving courts more discretion, rather than constraining the power of the judicial branch.

Although the issue in this case was specifically surrounding the Beach Management Program of the Florida Department of Environmental Protection, Surfrider anticipates that this case will be instructive for future courts and some lawmakers in deciding how to regard the public trust resources of our coastlines. The case serves as affirmation to the state's ability to protect their own natural resources and coastlines. As our shorelines are expected to change more rapidly with increased storms, hurricanes and sea level rise, this case will likely have increasing significance in the coming years.


Notes:
"Avulsive Event" - "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream" as cited in the Sand Key case

More definitions available from the previous post here.

Surfrider Foundation press release located here.

Photo courtesy of Cliff1066

Gushing with Legal Issues

The tragic oil spill in the Gulf of Mexico resulting from the Deepwater Horizon rig blow out on April 20, 2010 has shocked the nation and has already been labeled America's worst environmental disaster. Predictably, where there is a man-made disaster and deep pockets, there will be Plaintiffs. Goodness knows there is evidence of injustice.

There have been dozens of negligence lawsuits and other claims filed by fishermen, shrimpers and the survivors of the eleven oil rig employees who lost their lives in the explosion. In one recent proposed environmental law suit, environmentalists chose to invoke the citizen suit provision of the Clean Water Act to address BP's violations resulting from the Macondo oil well blow out and weeks of subsequent spillage. Gulf Restoration Network, the Louisiana Environmental Action Network and Environment America have given formal notice to BP of the groups' intent to sue. While Surfrider is assessing our involvement, if any, in the litigation surrounding the spill and efforts to mandate strong and effective clean up efforts, our Not the Answer campaign has focused on proactive legislative efforts.



Surfrider Legal's main focus thus far is currently embodied in our legislative work aimed at restoring the 28 year Congressional and Executive moratoria on any new offshore drilling that was allowed to lapse in the fall of 2008. Two bills are currently going through Congress that would help to restore protections against new offshore drilling and safety for our national waters and coasts. Here is a summary of the proposed federal legislation:

H.R. 5213; "West Coast Protection Act of 2010"
On May 5th, Representatives from California, Oregon, and Washington introduced the West Coast Protection Act of 2010 to the House of Representatives, which would prohibit offshore drilling off the coasts of California, Oregon, and Washington. The bill would amend the Outer Continental Shelf Lands Act, which authorizes the Secretary of the Interior to grant offshore oil and gas leases. Under the new Act, the Secretary could not grant new leases for exploration, development, or production of oil and natural gas off the west coast. The bill was referred to the Committee on Natural Resources.

H.R. 5248; "No New Drilling Act of 2010"
Representatives from California, Florida, and New Jersey introduced legislation in the House of Representatives May 6th, which would prohibit further leasing of any area in the United States' outer continental shelf for the exploration, development, or production of oil, gas, and minerals. The bill would eliminate parts of the current Outer Continental Shelf Lands Act, which allow the Secretary of the Interior to create and revise oil and gas leasing programs off U.S. coasts. The bill was referred to the Committee on Natural Resources.

Hard to Stand in Puerto Rico

It's easier to stand up on a wave in Rincon, Puerto Rico, than it is to obtain standing in court. According to the Puerto Rican Supreme Court's March 17, 2010 decision (Fundacion Surfrider, Inc v. Administracion Reglamentos y Permisos, CC-2005-732) on the legality of the Marino de los Suenos development that denied Surfrider Foundation standing in the case to challenge the high density development that will have dramatic effects on the character of the neighborhood and water disbursement in the region.



Surfrider challenged the Administration of Rules and Permitting (APRE) decision that granted a zoning change for high density development in a low-density zoned area, giving the ARPE precedent right to allow rampant high density development without employing the Planning Commission as the appropriate body for these decisions.

Surfrider was present and vocal during the administrative agency decision, and then took our grievance to court in 2005. The issue went up to the Appeals Court and then the Supreme Court in Puerto Rico. The Supreme Court wrote a strong opinion against Surfrider's standing, requiring burdensome conditions to constitute legitimacy as a Plaintiff on this action. The decision sets poor precedent for future environmental organizations who would like to obtain standing to fight poor development decisions in Puerto Rico.

In general, the Court found that Surfrider and named co-plaintiff Leon Richter's interest were not sufficiently stated to show an intimate connection between the action and the organization's "adverse interests." Specifically, the majority wrote that because Senor Richter only included a PO Box address and not his particular home address, they could not tell how close in proximity he was to the new development and how much it would disturb the characteristics of the neighborhood. The majority also requested more data to substantiate allegations on how this will affect the water distribution and intensity in the area. They called the presented information "speculative and conclusory." As for Surfrider Foundation's standing, the majority noted that Surfrider functions to protect the welfare of oceans and beach access. But they reasoned that "this project is not even contiguous with the beach and will not impede access" and that the effects of the development are not sufficient to show a particularized interest in judicial right to review.

According to the dissent by three justices, Surfrider Foundation did demonstrate that it was in the interest of the organization and the organization's individual members to work in the interest of conservation in the area. The dissent recognized that conservation is intimately related to planning decisions.



Furthermore, the dissent noted that even though Senor Richter did not have his specific address entered into the case, no one had ever doubted whether he resided as a neighbor to the proposed project. After all, how close does he have to be to allege the traffic concerns, affect on the local neighborhood and water usage concerns. The dissent noted that "there is no reason to doubt that he is truly a neighbor in the community and accurately described the public view."

At least the dissenters recognized that Surfrider Foundation has been present in the local community to help to protect and preserve coastal resources in the area for over a decade.

As the dissenting opinion author Fiol Matta quoted in the local newspaper, "today's decision was a hard blow against citizens working for the environment."

Rise Above Plastics: Litigation on Bag Bans in California

Surfrider Foundation members and activists have been extremely passionate in their involvement in our Rise Above Plastics program, which aims to reduce the harms of plastic pollution in our ocean by raising awareness of the problem and advocating for a reduction of single-use plastics and the recycling of all plastics. In fulfilling this advocacy component of the campaign, many local Chapters have been working to place bans on plastic bags through petitioning their local City Council (as has been done in San Francisco and Malibu, CA, Westport, CT, and Kaua'i, HI, for example) and for statewide and national legislation.

Over the past year, cities in California have been especially deterred from acting to pass these local ordinances because there is the potential to be sued by the "Save Our Plastic Bag Coalition," a group comprised of plastic bag manufacturers. Despite the fact that the plastic bag has been widely considered a number one offender of the environment and our oceans, this manufacturers group has sued the City of Oakland and the City of Manhattan Beach for their failure to do an EIR when passing such a law. Even though the local ordinances are intended to be protective of the environment, the SOPBC contends that the environmental harms have not been properly assessed. The plaintiff in this case tries to frame the argument as a "paper vs. plastic" debate, even though cities like Manhattan Beach have coupled their local plastic bag bans with education and outreach on why reusable bags are best for the environment. The real debate should be single-use bag versus one-time use. The single-use plastic bag may be used for 5 minutes and it will persist in the ocean for over 500 years, if not forever.

In the recent appellate court case challenging the local ordinance, Save the Plastic Bag Coalition v. City of Manhattan Beach, 181 Cal. App. 4th 521 (Cal. App. 2d Dist. 2010), the City of Manhattan Beach took its argument to the Court of Appeal to defend their ordinance prohibiting the use of plastic bags by certain retailers, including grocery stores. Instead of completing a full EIR, the city issued a negative declaration regarding the need for an environmental impact report (EIR) under the California Environmental Quality Act, reasoning that the ordinance would not have a significant effect on the environment. The SOPBC challenged the ordinance, as they had promised to when the City Council was analyzing the issue. The trial court sided with the bag manufacturers, ruling that the ordinance could increase the use of paper bags, which may have a significant negative impact on the environment and require an environmental impact report. The appellate court agreed and affirmed the judgment.

It has been an odd position for Surfrider Foundation activists in California, who are used to employing the California Environmental Quality Act to pursue their environmental campaigns. Here, the law is perversely used against Surfrider's efforts to protect the environment and help our oceans.

Luckily, many California Cities have united to address the plight of the plastic bag and their ability to regulate its usage in their own cities. They are intending to prepare a Master Environmental Assessment to be used as a foundational document to overcome any CEQA regulations governing the matter.

Surfrider will continue to petition and support municipalities in their acts to recognize the problem of plastic pollution and in their efforts to stem the flow of harmful pollution to our oceans.

Brannan v. State of Texas: Making Texas Beach Access A Force To Be Reckoned With

A new opinion involving the Texas Open Beaches Act, rolling easements, and the takings clause came down this week from the Court of Appeals of Texas, First District in Houston.

The opinion, deciding an ongoing battle between Homeowners versus the State, General Land Commissioner, Attorney General and Defendants Surfrider Foundation and Environemntal Defense, was delivered in the context of a denial of a rehearing. The Homeowners were challenging public beach access easements (or right to make beneficial use of the land) in Surfside Beach, where the Plaintiffs houses ended up on the sandy beach after Tropical Storm Frances in 1998.

In deciding the case, the court determined the following points:

• "the Open Beaches Act protects the public's free and unrestricted right to use the larger area extending from the line of mean low tide to the line of vegetation if the public acquires that right through prescription, dedication, or custom;

• in this appeal, it is undisputed that under the common law and the Open Beaches Act the easement" rolls" or moves with the shifting of the line of mean low tide and the line of vegetation;

• the evidence conclusively shows that there is an easement by implied dedication on these properties because the public has historically used the beach in the area where these properties are located;

• the Open Beaches Act requires the removal of the houses because it applies to anything that interferes with the public's right to use the easement, which occurred here when the easement rolled to the houses; and

• common law requires the removal of the houses because their presence interferes with the use historically given to the public at Pedestrian Beach, which included its use as an unobstructed road for travel, swimming, beach combing, and other beach related activities"

This case interprets the Texas Open Beaches Act, which is near and dear to Texas beachgoers. The Act, in part, states:
"It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico." Tex. Nat. Res. Code Ann. § 61.011(a) (Vernon 2001).


Ellis Pickett of Surfrider Foundation

The Court strongly presented evidence of implied dedication based on use, in which Ellis Picket of the Texas Upper Coast Surfrider Foundation Chapter, was cited for his personal affidavit testifying to the public's decades of beachgoing through engaging in usual beach related activities, such as swimming, boating, surfing, fishing, picnicking, sunbathing, beach combing and relaxing. The Court ruled, "[t]he summary judgment evidence shows that for a period of at least 40 years, the public has openly used Pedestrian Beach where these properties are located. The evidence shows that Pedestrian Beach 'has always' and 'forever' been a public beach 'widely' used by the public up to the line of vegetation without the public asking permission from any owner of the property; in the 1960s, Pedestrian Beach was a public road in the 1960s until cars were banned there by the Village; Pedestrian Beach was used by the public for typical activities such as swimming, fishing, sunbathing, playing, relaxing, beach combing, surfing; and Pedestrian Beach has been kept clean by members of the public."

Once again, Texas case law has recognized the common law "rolling easement" concept, especially in reciting the eloquent statement: "The law cannot freeze such an easement at one place any more than the law can freeze the beach itself. . . . An easement fixed in place while the beach moves would result in the easement being either under water or left high and dry inland, detached from the shore. Such easement, meant to preserve the public right to use and enjoy the beach, would then cease functioning for that purpose." quoting Matcha, 711 S.W.2d at 98-100.

Finally, the Court explained why the takings clause does not apply to a rolling easement: "The specific question we answer today, which has not previously been addressed by this Court or another court of appeals of this State, is whether a taking occurs when an easement rolls to a house that was not initially on the easement. Although this specific question is a matter of first impression, Texas courts of appeals have consistently held that removal of a structure or obstruction from the public easement under the Open Beaches Act is not a taking because the Act does not create an easement, but provides a method of enforcing an easement acquired by other means." See Seaway, 375 S.W.2d at 930; see also Arrington, 767 S.W.2d at 958; Moody, 593 S.W.2d at 379-80, and distinguishing Nollan v. California Coastal Commission.

In sum, this important case reaffirms the strong Texas Open Beaches Act by broadly defining an encroachment to public access, confirming the common law underpinnings and logic of the concept of rolling easements, and denying the claim for "takings" in the instance of a private structure coming onto public land.