March 28, 2011

Supreme Court declines to review controversial Ninth Circuit land exchange decision

By Supreme Court declines to review controversial Ninth Circuit land exchange decision

Author: Brandon Middleton

This morning the Supreme Court declined a private company's request to review a Ninth Circuit decision which invalidated a land exchange between the private company and the Bureau of Land Management.

The land exchange would have allowed Kaiser, the private company, to develop a landfill in Riverside County.  The Kaiser Eagle Mountain land exchange was necessary to address what has been described as a "'critical' landfill capacity shortfall in Southern California."  Scientists and engineers from major universities throughout California approved of the proposed landfill as "one of the world's safest landfills and a model for others to emulate."  Under the land exchange, the government was set to receive land that would allow regulatory agencies to better manage environmentally sensitive habitat.

Although Kaiser and the government worked cooperatively to defend the land exchange from two decades of administrative and court challenges, environmental activists were ultimately successful in preventing the exchange from going forward, with the Ninth Circuit invalidating the exchange under the Federal Land Policy and Management Act and National Environmental Policy Act in 2009.  I criticized the Ninth Circuit's decision here.

Kaiser sought Supreme Court review of the Ninth Circuit's controversial decision.  Pacific Legal Foundation filed an amicus curiae brief in support of Kaiser.

Unfortunately, with today's denial of Kaiser's request, the Ninth Circuit's decision stays in place.  It is unclear what the next steps for Kaiser and the government will be with regard to the land exchange and the need for greater landfill capacity in Southern California.  The Kaiser litigation will likely have ramifications for private entities wishing to work cooperatively with federal agencies in order to pursue important public projects.  As Judge Trott noted in his dissent to the Ninth Circuit decision, public and private entities are now left uncertain in terms of how to accommodate each other's objectives "in a setting where a private entity approaches a governmental entity with a joint proposal that will benefit both."  Judge Trott's dissent is a powerful reminder of what the private sector is up against in 21st century America:

How many of the people who started this project are still employed by Kaiser, are still in public service, or for that matter, are still alive? Yet, the process has developed an eternal life of its own as full employment for all swept along with or by it.

Now . . . the endless process continues. No doubt we will see this case back again, years from now, unless the proponents of this project [grow] weary of it and throw in the towel, thwarted and defeated not by substance, but by interminable process.

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