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Environmental Law Action Involving Construction of Business Park on Protected Wetlands

By FindLaw Staff on June 01, 2010 4:17 PM

Butte Env'tl. Council v. US Army Corp of Eng'rs., No. 09-15363, concerned a challenge to decisions of two federal agencies approving the construction of a business park on protected wetlands in California.  The court of appeals affirmed summary judgment for defendants, on the grounds that 1) the Army Corps of Engineers applied the proper presumption under 40 C.F.R. section 230.10(a)(3), and found that it had been rebutted under the appropriate standard; 2) the Corps' consideration of the project's stated purpose was not unreasonable; 3) while it was true that the Corps made compensatory mitigation a condition of the permit, there was no indication that such mitigation was meant as an obligation in place of the city's responsibility to adopt the least environmentally damaging practicable alternative, as opposed to an obligation in addition to it; and 4) the Fish and Wildlife Service's finding of no "adverse modification" was neither arbitrary nor capricious.

In re: Jordan, No. 09-72379, concerned a petition for a writ of mandamus ordering the district court to direct the government to return motorcycles seized in connection with a criminal investigation.  The court of appeals denied the petition, on the ground that the district court did not clearly err in determining that, when the government has failed to provide notice of a seizure in accordance with 18 U.S.C. section 983(a)(1)(A), section 983(a)(1)(F) does not compel the government to return seized property before initiating a judicial forfeiture proceeding.

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