Justia Zoning, Planning & Land Use Opinion Summaries

African-Americans residing near a contaminated landfill claim that municipalities knew that well water was contaminated, warned Caucasian families and provided alternate sources of water, but did not warn African-Americans. In their suit under the Equal Protection Clause, 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and state laws, a magistrate compelled testimony by plaintiffs' former counsel; the city asserted that, if plaintiffs consulted the attorney in 2000, the action is barred by the one-year statute of limitations. During a deposition, the attorney refused to answer some questions. The court granted a motion to compel. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Plaintiffs were not appealing a final judgment and did not qualify for interlocutory review under the Perlman exception or the collateral order doctrine. Immediate review is appropriate if an order conclusively determines a disputed issue separate from the merits that is too important to be denied review and will be effectively unreviewable on appeal from a final judgment. Privilege is important and the attorney is a disinterested non-party, so the contempt-citation avenue of review is practically foreclosed, but plaintiffs, asserting the privilege, ultimately can avail themselves of a post-judgment appeal that suffices to protect the rights of the litigants and preserve the vitality of attorney-client privilege.

An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.

As part of the cleanup of PCBs in Wisconsin's Fox River, the EPA filed suit against de minimus potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601). The district court approved a settlement and other PRPs appealed. The Seventh Circuit affirmed, holding that the government's estimate of fault was supported by the record and accounted for all sources of PCB discharge. The district court properly approved the settlement before making a divisibility determination.

The Indiana Department of Environmental Management (IDEM) ordered the company to remedy certain conditions at its solid waste dump in Goshen; the company moved the operation to Elkhart. Following complaints, IDEM found violations and entered into an agreement with the company. The company did not honor the agreement and IDEM filed suit. After their attempt to intervene in the state court suit was limited, residents filed suit under the Resource Recovery and Conservation Act (RCRA, 42 U.S.C. 6901), specifically differentiating their claims from those in the state suit. IDEM subsequently filed a second state suit. The district court dismissed. The Seventh Circuit reversed and remanded, holding that, excepting violation claims concerning âCâ grade waste that were part of the first IDEM lawsuit, the plaintiffs met the requirements of RCRA for bringing a citizen suit, so abstention should not apply to deny them a right created by Congress. While a citizens' violation action may not âbe commencedâ if the EPA or state agency âhas commenced and is diligently prosecuting a civil or criminal action,â the citizens' suit went beyond the scope of the first IDEM suit. The RCRA suit complements and does not conflict with state efforts.

A 1935 settlement gives the tribe specific irrigation rights in the Gila River. The government filed another water rights claim on behalf of the tribe in 1979, resulting in a 2006 Arizona Supreme Court decree that the 1935 decree resolved all of the tribe's rights under all theories and that federal court was the proper forum for interpretation and enforcement of that decree. The Court of Federal Claims dismissed a claim against the United States for failure to secure and protect the tribe's water rights. The Federal Circuit affirmed, finding the claim barred by the six-year limitations period in 28 U.S.C. 2501. Rejecting an argument that the tribe was not on notice of its harm until the 2006 decision, the court stated that the plain terms of the 1935 decree indicated that the tribe would have no further rights and that the government was representing multiple parties.