Wildearth Guardians v Environmental Protection Agency

Agency approved a cap and trade program for sulfur dioxide involving Utah, New Mexico and Wyoming plus a city and county in New Mexico. Wildearth and other groups challenged the approval. The panel rejected the challenge and affirmed. The panel held Wildearth’s challenge to the presumptive emission benchmark was untimely as it was adopted in 2006 and not challenged within 60 days and the substantive challenge was based on an unreasonable demand that nonexistent information be evaluated in the plan. The panel held challenges based on arguments involving the use of milestones were waived as they were neither raised before Agency nor in the opening brief filed with the panel. The panel approved the use of qualitative factors in analysis as the applicable rule allowed it and the rule called for using all available information and was properly followed in his case as it is reasonable that including more polluters would lead to lower levels of pollution, new sources will be subject to the cap, there was no requirement that any minimum number of states join the plan and states outside the plan were still regulated under the normal Clean Air Act regulations. The panel finally rejected a challenge involving a New Mexico power plant as New Mexico was allowed to utilize the evaluations of a multistate partnership and thus did not need to follow the rule for source specific analysis because the plant was covered by the cap and trade proposal.

Headwaters Resources, Inc. v Illinois Union Insurance Company

Headwaters sued Company seeking reimbursement for expenses arising from defense of a pollution damage case in Virginia which Company had denied citing the applicable policies’ pollution exclusions. The district court granted summary judgment to Company and the panel affirmed. It applied Utah’s eight corners rule and held the complaint alleged only pollution based liability and the various policies unambiguously excluded pollutants including the coal ash at issue here. The panel rejected Headwaters’ argument that the breadth of the pollution exclusions makes coverage illusory noting there is no requirement insurance contracts cover pollution created in the normal course of business, Utah precedent supports a public policy of making polluters pay for pollution created in the course of business, coverage remains for slip and fall and other hazards and Headwaters can buy pollution insurance if it wants. The panel held Company compared the complaint and the policies which is all good faith required and the district court did not abuse its discretion in denying a Rule 59 motion as the facts asserted therein by Headwaters were irrelevant to the outcome of the case.

Becker v Ute Indian Tribe of the Uintah and Ouray Reservation

Becker sued Tribe in federal court for state law breach of contract alleging federal law defenses to the contract as the basis for jurisdiction. The district court dismissed for lack of subject matter jurisdiction and the panel affirmed holding that federal defenses are insufficient to create federal question jurisdiction.

Kovnat v Xanterra Parks and Resorts

Kovnat was injured when the saddle on the horse she was riding slipped throwing her to the ground. She sued Xanterra which raised Wyoming’s recreational use statute in defense. The district court granted summary judgment to Xanterra on the basis of the statute. The panel affirmed in part, reversed in part and remanded in part. It held that 10th Circuit precedent declared loose saddles as an inherent danger of horseback riding and here there was both no evidence the saddle was loose and any claim based on a loose saddle would be barred by the statute. It reversed as to the claim based on uneven stirrups as the record indicated that uneven stirrups were not part of an ordinary horse ride and should have been corrected. As the record could be read to mean Xanterra’s agents did not see or did not adequately assess the uneven stirrups, summary judgment was not appropriate and the case was remanded for further proceedings.

Citizen Center v Gessler

Center sued Gessler and several county clerks alleging violations of the federal and Colorado constitutions based on the use of traceable ballots in six counties. Gessler as secretary of state promulgated new rules which changed some but not all of the practices Center alleged were illegal. The district court dismissed the complaint ruling Center lacked standing. The panel affirmed in part, reversed in part and remanded in part. It held that Center’s claims as to the practices of unique numbering and unique ballots in a batch after final certification were moot as there was no indication the regulations were promulgated to avoid a judgment on the merits and Center had achieved everything sought in lawsuit. As the use of unique ballot on single voting machine and certain batching procedures were not covered by the new rules, those claims were not moot. The panel held that Center lacked standing as to claims involving the right to vote, free speech and association and substantive due process as the alleged harm of discovering and disclosing how a person voted is highly speculative at best and the compliant did not state that anyone was actually deterred form voting. Standing for equal protection and procedural due process claims was present as the risk of discovery depended on which county a voter resides and the lack of safeguards is sufficiently concrete to support an injury in fact. The panel dismissed those claims as to the clerks holding Colorado does not recognize a right to untraceable ballots and thus there can be no due process violation and all voters in a given county were treated the same, thus, there can be no equal protection violation. As Gessler did not move for dismal under Civil Procedure Rule 12(b)(6), the equal protection and due process claims against him in his official capacity were remanded for further proceedings.