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Posts Tagged ‘Gonzaga Law’

The lawsuit we filed against the U.S. Army Corps of Engineers over the Rosenberry Drive trees has been almost universally well-received. Other than a few crazed online comments from the anonymously insane, we’ve received nothing but well-wishing for our effort. Even the Coeur d’Alene Press — no fan of environmental litigation — came out in favor of our lawsuit.

Despite what some people might think, going to court is not something we take lightly. A KEA lawsuit is actually quite rare. We are extremely careful that both the facts and the law are on our side, and that the issue is significant enough to expend the time and money and effort. Indeed, this is true for the vast majority of conservation organizations. It is easy to call a lawsuit frivolous, but very few of them really are. Quite literally, we can’t afford to lose many court cases.

Still, when laws are clearly violated, when the environment is clearly at stake, going to court needs to remain an option. Lawsuits should never be the first option, but they should always be available as a last resort.  Unfortunately, access to the courthouse by conservation organizations is under attack. Congress has attempted to make some laws flatly unreviewable in court. Congress has attempted to limit government payment of attorney fees, even in cases where the government loses. And there are increasing attacks on university legal clinics which, like Gonzaga Law in our case, provide pro bono representation to low income people and public interest organizations without the ability to pay.

Courtrooms are inefficient and expensive places to resolve disputes, but courts do the job with authority and finality. The rule of law is what provides civilizations with actual civilization. Courts provide an honest way of dealing with honest disputes. We’re glad that this particular lawsuit is so popular, but we’re also glad that unpopular ones can be resolved the same way.

 

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Today, Kootenai Environmental Alliance filed a lawsuit in federal court challenging the U.S. Army Corps of Engineers mandate to remove the trees along the Rosenberry Drive (“The Dike Road”) in Coeur d’Alene.  The lawsuit alleges that the Corps failed to perform an adequate environmental analysis, and that the Corps is attempting to enforce a memorandum that isn’t actually a law. The Gonzaga University School of Law’s Environmental Law Clinic represents Kootenai Environmental Alliance in this case.

In an inspection just over a year ago, the Corps of Engineers cited the City of Coeur d’Alene for more than a hundred maintenance deficiencies on the flood control equipment that purportedly protects North Idaho College and the Fort Grounds neighborhood from flooding. Among the deficiencies cited by the Corps was the fact that the hundreds of mature Ponderosa pine trees that line the earthen levee portion were in violation of the Corps’ standing vegetation policy for levees.  To correct the deficiency, the City of Coeur d’Alene was instructed to cut the trees, remove the roots, and re-construct the levee embankments. To maintain the critically important certification for the levee, the City was given two years to comply.

The KEA lawsuit alleges that, at some point, the Corps of Engineers should have performed some sort of environmental analysis for the vegetation removal – either at the national program policy level, or at the local implementation level.  The Corps has essentially done neither, which KEA alleges is in violation of the National Environmental Policy Act (NEPA).

We believe an environmental impact statement, if actually done, would show that the Corps policy would be devastating to the City of Coeur d’Alene, as well as communities around the country facing similar mandates. Moreover, a hard look at the environmental impacts would also show that there is essentially no scientific basis for a sweeping one-size-fits-all tree removal requirement.

In the lawsuit, KEA also alleges that the requirement that the City remove the trees is derived essentially from a Corps of Engineers memorandum, not actual regulations. For regulatory requirements to be enforceable, they should have been published in the Federal Register and opened up to the public for comment. That didn’t happen.

In many respects, the KEA lawsuit mirrors a lawsuit filed in California regarding the Corps of Engineers vegetation policy that would require removal of a huge swath of habitat in the Sacramento region. That lawsuit is still pending, and was recently joined by the California Department of Fish and Game.

The Corps of Engineers will be officially served with the lawsuit in the coming days. The complaint (a 20 page pdf) is available here:

2011-12-07 Complaint KEA v Army Corps

 

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This Thursday, noon, at the Iron Horse, we’ll have an update briefing on the Corps of Engineers death sentence for the dike road trees. Coeur d’Alene City Councilman John Bruning will give an update from the City’s perspective, including a discussion of a new ad hoc committee being formed.  And Terry Harris from KEA will give an update on what is becoming an extraordinary campaign to save the trees. (Here’s the online petition, by the way)

The briefing will mark the fall-season kick-off of the 39th consecutive year of regularly-scheduled general informational meetings at the Iron Horse by Kootenai Environmental Alliance, the oldest non-profit conservation organization in Idaho.

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The Environmental Law Clinic at Gonzaga’s Law School represents Kootenai Environmental Alliance on Clean Water Act issues — currently including our efforts to clean up after the mess made by the Fernan Lake road project, and our efforts on behalf of the Spokane River.  While this is a relatively new development for KEA, and while this clinic is a new incarnation at Gonzaga Law, environmental law clinics around the country are doing important work for small environmental groups like ours.  

 Recently, a number of law clinics have come under attack for their work, including teh nationally ranked clinic  at the University of Maryland, my law school alma mater.  Legislators in Maryland went after the Maryland Law School’s budget after a large poultry producer complained about the Clinic’s Clean Water Act enforcement case against the producer and its contract farmer for polluting the Chesapeake Bay.  After a national outcry, the law school’s budget was restored, but the Environmental Law Clinic will be required to file a report to the legislature regarding its clients and cases.

 Environmental law is a complex field, and having firsthand clinical experience is important legal training for increasingly specialized lawyers-to-be.  But it is also extraordinarily valuable to groups like KEA. We wouldn’t otherwise be able to afford the legal fees that can accrue in complex environmental cases, and we wouldn’t otherwise have access to young, bright, and motivated law students to work on our behalf on such complex matters.  As we try to protect water quality in North Idaho, we’re glad to have Gonzaga’s clinic on our side.

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