Longtime Overlawyered readers may remember my tut-tutting the original proprietor of the Bizarro-Overlawyered site for misrepresenting a Southern District of New York opinion by claiming that its disposition of a Rule 12(b)(6) motion was an affirmative finding of fact that Christine Todd Whitman had acted improperly in the wake of the September 11 attacks. (In fact, all the court did was rule that the case could go forward on the allegations of the plaintiffs’ complaint.) The Second Circuit has now spanked the district court for going even that far, and tossed the entire case, ruling that this was not an appropriate inquiry for the judicial branch, given the risk that officials will be deterred from making public statements if they could be held liable for allegedly making a mistake. Good analysis of Benzman v. Whitman by Stephen Bergstein via Bashman.
Posts Tagged ‘environment’
“Katrina Suit Vs. Army Corps Dismissed”
Whatever the failings of the Army Corps of Engineers, the Flood Control Act of 1928 makes clear that federal taxpayers cannot be forced to pay through litigation for the catastrophic collapse of the levees, so there goes the multi-trillion-dollar class action. (Cain Burdeau and Michael Kunzelman, AP/Forbes, Jan. 30). Update: That wasn’t the last word, though: later rulings allowed suits against the Army Corps to go forward.
Redwoods vs. solar panels
Richard Treanor and Carolynn Bissett face criminal charges for not cutting redwoods that have grown to block a neighbor’s panels. (Paul Rogers, “Sunnyvale homeowners told to cut redwoods that block solar panels”, San Jose Mercury News, Jan. 24)(h/t: Karen Myers).
More: Kevin at Truck and Barter thinks the local statute, which includes elements of first-in-time first-in-right, does a relatively good job at drawing bright-line rules to protect the competing legitimate interests of the property owners. For arguably relevant history, check out the old English doctrine of “ancient lights“.
California town grapples with judgment 3x its budget
“Half Moon Bay is wrestling with unpleasant options for responding to a court ruling that officials say threatens the ‘very existence of our city government’ – a $36.8 million judgment against the city for turning a proposed housing development site into wetlands.” The town’s annual budget is $10 million. The property in question had become unbuildable when protected wetlands appeared on it, as a result, the owner contended, of negligent town policies affecting water flow and retention. The plaintiff had bought the property in 1993 for $1 million. “Under the worst-case scenario, officials say, Half Moon Bay would become the first Bay Area city forced to dissolve, and the coastal town’s land would become an unincorporated part of San Mateo County.” (John Coté, San Francisco Chronicle, Dec. 18).
Buys submerged land, sues to have it drained
Curious goings-on in North Carolina:
Kristin Wallace bought some very wet land as an investment. Eight acres of it, all underneath Lake Lynn.
The Cary woman bought the land for $12,500 last year at a public auction of property with delinquent taxes. Now she is suing to try to force the city of Raleigh or Wake County to buy the soggy land from her or drain it.
“It’s extremely valuable to me,” Wallace said, “dry.”
City and county officials say Wallace, who started investing in real estate less than two years ago, knew the land was lake bottom when she bought it, something she doesn’t dispute.
“It’s bought as is,” said Shelley Eason with the County Attorney’s Office.
(Sarah Ovaska, “Pull the plug on Lake Lynn, suit demands”, Raleigh News & Observer, Dec. 6).
Hotel owner might sue over gloomy hurricane forecasts
“Central Florida’s most famous hotel owner, Harris Rosen, lashed out at hurricane expert Dr. William Gray for his gloomy storm predictions saying they have damaged state tourism. Rosen said he believes Florida lost billions of dollars in business because of Gray’s outlook and even threatened a lawsuit. ‘Look, doctor, you’ve made these forecasts and you were wrong once,’ Rosen said. ‘You made the forecast and you were wrong twice. Are you going to continue to make these forecasts?'” (“Hotel Mogul Threatens Lawsuit Over Hurricane Expert’s Gloomy Forecasts”, WKMG/Local6.com, Nov. 29). And: more thoughts from Florida Masochist.
San Fran fireplace ban?
Time running out to roast chestnuts by an open fire: “Under the auspices of the Bay Area Air Quality Management District, ‘public hearings’ are being held to determine the fate of the family hearth. Those of us who live in rural areas have a pretty good idea what the outcome is going to be.” (Jeffrey Earl Warren, “Should fireplace fires be banned?”, San Francisco Chronicle, Nov. 22; Jonathan Curiel, “Smog board wants to ban wood fires on bad-air nights in winter”, Nov. 6). This has been building for a while (Dec. 27, 2002; Dec. 24, 2001; Feb. 28, 2001). Related: Denis Cuff, “Air quality agency has beef with charbroiling smoke”, InsideBayArea.com, Nov. 28.
Wildfires and land management suits, cont’d
Controversy continues over the extent to which litigation has tended to obstruct brush and understory removal as well as post-blaze recovery efforts in the fire zones: Damien Schiff (Pacific Legal Foundation), “Misguided litigation magnifies wildfires”, San Francisco Chronicle, Nov. 5); John Berlau, “The Environmentalist Fires”, American Thinker, Oct. 29; BioStock blog, Oct. 5. The Sierra Club defends environmental litigation in this Oct. 23 statement. Last year the Society of American Foresters last year released a study entitled “Forest Service Land Management Litigation 1989-2002”, which is available at the Society site. Earlier: Oct. 24, etc.
Update: Erin Brockovich vs. Beverly Hills High School
After the glamourpuss tort-chaser’s campaign over environmental contamination at the high school met with one reverse after another in court, ending in a judicial ruling of no merit, plaintiff’s lawyers have now agreed to reimburse the city and school district of Beverly Hills for a not insignificant chunk of their legal expenses in defending the claims, in the sum of $450,000. As readers of this site know, prevailing defendants very seldom recover fees from losing plaintiffs or their lawyers in American litigation. The Civil Justice Association of California has details (Oct. 9).
This summer Viking published a book by journalist Joy Horowitz entitled Parts Per Million: The Poisoning of Beverly Hills High School which, as its subtitle implies, would appear to place much credence in the lawsuits’ claims of disease causation from oil wells on the high school campus (undated L.A. Times review by Robin Abcarian). For the side of the story that proved more convincing to the courts, see the work of Norma Zager and Eric Umansky here and here as well as this article in Time. Brockovich herself, incidentally, now has a blog of her own.
Bogus claims in Chevron-Ecuador suit
I’ve got a post at Point of Law detailing a judge’s ruling chastising, and imposing sanctions on, three lawyers (including one who’s fairly famous) who sued the oil company on behalf of supposed cancer victims in Ecuador; it turned out some of the victims 1) didn’t have cancer and 2) weren’t aware a suit was being filed in the U.S. in their name. (Oct. 25; and see Roger Parloff’s excellent post on the episode at Fortune “Legal Pad”).