Last week, the United States District Court for the Western District of Washington, in Trident Seafoods Corp. v. Bryson, No. C12-134 MJP (Nov. 30, 2012), sent litigants a reminder about the necessity of proper standing in rulemaking challenges.  Indeed, standing is often one of the most difficult aspects of these cases, and often result in early case dismissal, as it did in Trident. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Federal Procedure, Procedure, Rulemaking, Standing

In April, we reported on an Arkansas Supreme Court case which held that, at least as of 1934, the term “mineral rights” included oil and gas as a matter of law.  But what about deeds of an older vintage?  Last week, the Arkansas Supreme Court, inNicholson v. Upland Industrial Development Co., 2012 Ark. 326 (Sept. 13, 2012), ruled that a 1903 deed reserving “mineral rights” included oil and gas rights because at the time of the deed and in the general region where the deed was executed, that was the common understanding.  In other words, the per se rule announced in Staggs v, Union Pacific RR Co.* did not apply. Read More »

Share | Email| Comments|  Topics: Arkansas, Deeds, Drilling, Exploration, Leases, Mineral Rights, Oil and Gas, Procedure, Real Estate

One of the very first things I was told by the senior partner when I started practicing law was that there isn’t an honest mistake that can’t be fixed, except blowing the statute of limitations. As a result, my calendar has limitations periods blocked out weeks, months and in some cases years in advance, and if there’s ever a question of when it runs, I use the earliest date. The Tenth Circuit’s decision in Impact Energy Resources, LLC v. Salazar, Nos. 11-4043 & 11-4057 (Sept. 5, 2012 10^th Cir.), is a cautionary tale to those who may not be as conservative. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Exploration, Federal Procedure, Interior, Leases, Mineral Leasing Act, Oil and Gas, Procedure, Public Lands, Statute of Limitations, Tenth Circuit, Tolling

Pennsylvania’s Act 13 of 2012, signed in February of this year, revised the Commonwealth’s Oil and Gas Act to accommodate and address the increased activity associated with the extraction of natural gas from the Marcellus Shale.  It included provisions for impact fees, environmental protections, and set-back restrictions.  In addition, it also required local municipalities to adhere to uniform zoning laws that would provide for the development of oil and gas resources in the Commonwealth.  Yesterday, in the case of Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (July 26, 2012), the Commonwealth Court in a 4-3 decision held that provision of the law to be unconstitutional. Read More »

Share | Email| Comments|  Topics: Act 13, Cases to Watch, Drilling, Due Process, Leases, Marcellus Shale, Oil and Gas, Pennsylvania, Procedure, Real Estate, Standing, Zoning

Counsel and courts continue to adapt to the “new world” of class certification following the United States Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, and the recent case of Ratner v. Georgia-Pacific Consumer Products, LP, Case No. SU11CV343-W (Effingham County Ga. July 5, 2012), is a good example.  Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Nuisance, Procedure, Real Estate, Toxic Torts, Trespass

On May 25, 2012, the Sixth Circuit rendered its decision in Sierra Club v. Korleski, No. 10-3269 (6^th Cir. May 25, 2012), holding that there is no private right of action under Section 7604 of the  Clean Air Act (“CAA”), 42 U.S.C. § 7604, to compel a state to enforce its own State Implementation Plan (“SIP”) of the national air quality standards.  In doing so, it effectively overruled its own precedent, relying on an intervening Supreme Court decision which found no similar private right of action under the Endangered Species Act (“ESA”). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Private Right of Action, Procedure, Sixth Circuit

With increasing frequency, courts around the country are using their inherent power to control the proceedings before them in order to structure environmental and toxic tort cases in such a way as to reduce, as much as possible, cases to their essence and, more importantly, ensure that the time and resources of parties are not needlessly wasted on discovery or lengthy proceedings when spurious claims are brought.  And that’s exactly what has happened in the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), where the Court dismissed plaintiffs’ claims against companies involved in drilling natural gas wells when the plaintiffs failed to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ activities. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Marcellus Shale, Medical Monitoring, Multi-District Litigation, Oil and Gas, Procedure, Real Estate, Toxic Torts

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands

On Monday, the United States District Court for the District of Columbia issued an opinion in Sierra Club v. Jackson, No. 11-1278 (D.C.D.C. Jan. 9, 2012), that has much to chew on with respect to judicial review of agency actions, particular those involving stays.  For those not following this long-running saga, a brief background is in order. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Boiler MACT, Cases to Watch, CISWI, Clean Air Act, Decisions of Note, Delay Notice, EPA, Federal Procedure, Procedure, Rulemaking

In a pair of December cases, the National Association of Home Builders (“NAHB”) has found itself without standing to challenge determinations made by the EPA and the Army Corps of Engineers with respect to whether certain “waters” fall within the agencies’ regulatory powers under the Clean Water Act (“CWA”).   Read More »

Share | Email| Comments|  Topics: Clean Water Act, NPDES, Permits, Procedure, Real Estate, Standing, Wetlands