A handicapped visitor to the Statue of Liberty filed a lawsuit against the concessioner who provides ferry service to the National Park Service site based on his claim that the ferry boats were not properly accessible to wheelchair users. While the concessioner made accommodations for the plaintiff to board the ferry boat, he asserted those accommodations were not sufficient and that the bathrooms were also not wheelchair accessible. In response to the lawsuit, the concessioner argued that there were no standards under the Americans with Disabilities Act (ADA) that governed the situation. Nonetheless, the concessioner agreed to make any necessary changes in response to the complaint and thus asked the court to dismiss the case as moot. The court, however, held that it could not yet determine if the concessioner had “completely and irrevocably eradicated” the basis for the complaints and thus allowed the case to continue.
Archives for August 2017
A court rejected the claim by a plaintiff that the Forest Service has to first prepare an environmental analysis of the impacts of a firebreak to stop an existing wildfire before it can construct the firebreak. In an effort to stop a large wildfire on the Okanogan-Wenatchee National Forest, the Forest Service created a “community protection line” (CPL) which consisted of a 300 foot wide area of thinned vegetation approximately 20 miles long which would serve as a fire break. The CPL was used because the fire had previously jumped two containment lines and was quickly growing.
After the CPL was constructed, the plaintiff filed a lawsuit alleging that the Forest Service should have completed an environmental analysis under the National Environmental Policy Act (NEPA) before constructing the fire break. The plaintiff argued that NEPA does not have an explicit waiver for emergency actions. While the statute does allow the agency to use alternative arrangements when necessary, plaintiff argued that the agency did not follow the procedure for this option even if it applied.
As the court noted, NEPA requires environmental analyses “to the fullest extent possible,” which shows they are not mandated in every situation. The court therefore concluded that, as a matter of common sense, NEPA “allows an agency to make alternative arrangements in emergency situations without complying with the ordinary, burdensome reporting requirements.” While the plaintiff insisted that wildfires were not emergencies, the court found that assertion to be “contrary to common sense.” The court also concluded that the agency properly followed its procedure for circumventing NEPA in emergency situations.
A federal court recently denied a claim by a visitor to a Forest Service boat ramp who claimed that the agency was violating the Federal Land Recreation Enhancement Act (FLREA) because it did not provide a picnic table and a working security light at an area where it charged a use fee. There was no picnic table at the area and the security light was broken. FLREA allows the Forest Service to charge a standard amenity recreation fee for areas that contain all of the amenities set out in the statute, including picnic tables and security services. However, FLREA also allows the agency to charge an expanded amenity recreation fee for use of highly developed boat areas, such as the one at issue. As the court noted, the statute does not require all of the amenities set out for standard fees to be provided at highly developed areas.
The area at issue, the Marsh Branch Boat Ramp, was a highly developed boat launch with multi-lane paved ramps and boarding floats. The court therefore held that the Forest Service was not required to provide any of the recreation amenities required for a standard recreation fee at a highly developed area, such as picnic tables and security services. The court did note, however, that the agency had fixed the security light.
A federal court recently ruled on a claim that the government had illegally taken timber by deliberately burning the plaintiff’s timber as part of an effort to contain a wildfire and clarified the test for whether the government was liable for its actions. The plaintiff owned timberland parcels that were surrounded by or adjacent to the Shasta-Trinity National Forest. When a wildfire began in the area, the Forest Service engaged in backburning by deliberately setting fire to some of the plaintiff’s land in an effort to establish containment lines that the wildfire would not get past. The court had initially ruled in favor of the government by finding that it was not required to compensate plaintiff for actions taken to prevent the spread of a wildfire. That decision was overturned because the court had not determined if the threat to the plaintiff’s timber was imminent or if the backfires were necessary to stop the wildfire. After being overturned, the court addressed the criteria for determining if the threat was imminent and backfires were necessary.
The Forest Service claimed that location and number of ongoing wildfires along with the dry conditions constituted an imminent emergency. The plaintiff, however, showed that the spread rate of the fires was small and weather conditions moderated their growth. The court held that a trial was needed to resolve this issue. As to the need for the backfires, the court held that the government needed only to act reasonably in response to an actual emergency in order to be found necessary. The court also held that the need for a response should be based on what was known at the time of the emergency, not in hindsight. The parties disagreed over whether backburning was necessary based on the situation, with the Forest Service pointing to limited resources and the plaintiff alleging the agency put cost saving before protecting private property. The court similarly held that trial was needed to resolve this question as well.
A federal court required the Bureau of Land Management (BLM) to return annual maintenance fees which it had improperly charged to a holder of 87 lode mining claims in Idaho. In 2011, Congress changed the applicable law so that pre-1993 claim holders no longer had to pay claim maintenance fees, but instead had to complete a minimum amount of assessment work. However, BLM disregarded the change in the law and issued regulations that required pre-1993 claim holders to continue paying maintenance fees to the government. The government asserted various defenses to avoid being liable for its clearly erroneous regulations, but the court rejected each of these.
The government first argued that the plaintiff had voluntarily paid the fees and therefore the voluntary payment doctrine applied and prevented the plaintiff from filing a claim that the government had illegally exacted the fees. The court rejected this argument, pointing out that there was no voluntary payment and the doctrine did not apply where the government demanded the payment in violation of a statute intended to benefit the claim holder. The government also argued that the plaintiff would get a windfall because, if it had not paid the fees, it should have completed assessment work but did not. The court held that, when the government acts beyond its statutory authority to collect money, it is irrelevant if a plaintiff obtains a windfall when it recoups the erroneously paid funds.