Opinion
21-cv-00096-wmc 21-cv-00306-wmc
04-26-2022
NATIONAL WILDLIFE REFUGE ASSOCIATION, DRIFTLESS AREA LAND CONSERVANCY, WISCONSIN WILDLIFE FEDERATION, and DEFENDERS OF WILDLIFE Plaintiffs, v. RURAL UTILITIES SERVICE, CHRISTOPHER MCLEAN, Acting Administrator, Rural Utilities Service, UNITED STATES FISH AND WILDLIFE SERVICE, CHARLES WOOLEY, Midwest Regional Director, and SABRINA CHANDLER, Manager, Upper Mississippi River National Wildlife and Fish Refuge, UNITED STATES ARMY CORPS OF ENGINEERS, LIEUTENANT GENERAL SCOTT A. SPELLMON, Chief of Engineers and Commanding General, U.S. Army Corps of Engineers, COLONEL STEVEN SATTINGER, Commander and District Engineer, Rock Island District, U.S. Army Corps of Engineers, and COLONEL KARL JANSEN, Commander and District Engineer, St. Paul District, U.S. Army Corps of Engineers, Defendants, and AMERICAN TRANSMISSION COMPANY, LLC, DAIRYLAND POWER COOPERATIVE, & ITC MIDWEST LLC, Intervenors-Defendants.
Howard A. Learner Scott Strand Ann Jaworski Environmental Law & Policy Center Counsel for Plaintiffs National Wildlife Refuge Association, Driftless Area Land Conservancy, Wisconsin Wildlife Federation, and Defenders of Wildlife Robert M. Morgan Admitted Pro Hac Vice National Wildlife Refuge Association Counsel for Plaintiff National Wildlife Refuge Association
Howard A. Learner Scott Strand Ann Jaworski Environmental Law & Policy Center Counsel for Plaintiffs National Wildlife Refuge Association, Driftless Area Land Conservancy, Wisconsin Wildlife Federation, and Defenders of Wildlife
Robert M. Morgan Admitted Pro Hac Vice National Wildlife Refuge Association Counsel for Plaintiff National Wildlife Refuge Association
PLAINTIFFS' DOCKETING STATEMENT
Howard A. Learner
Pursuant to Seventh Circuit Rules 3(c(1) and 28(a), Plaintiffs National Wildlife Refuge Association, Driftless Area Land Conservancy, Wisconsin Wildlife Federation, and Defenders of Wildlife submit this docketing statement for their appeal in the above-captioned case.
JURISDICTION OF THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
Plaintiffs filed two cases in the District Court (Nos. 21-cv-00096 and 21-cv-00306, now consolidated), seeking declaratory and injunctive relief under the Administrative Procedure Act for violations of federal law committed by the federal agencies in the course of granting necessary permits, rights-of-way, and other federal approvals for the proposed Cardinal-Hickory Creek high voltage transmission line. Plaintiffs alleged violations of: the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. §§ 668dd-668ee (“the Refuge Act”); Section 404(e) of the Clean Water Act, 33 U.S.C. § 1344(e); and Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a)(2).
Because all of the claims arise under federal law, the District Court has jurisdiction pursuant to 28 U.S.C. § 1331.
JURISDICTION OF THE U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Plaintiffs seek review of the District Court's March 1, 2022 Final Judgment, Dkt. 195 (as amended March 9, 2022, Dkt. 203), and the associated January 14, 2022 Opinion and Order on summary judgment, Dkt. 175. The January 14, 2022 Opinion ruled on cross-motions for summary judgment and granted summary judgment to Plaintiffs on claims brought under NEPA and the Refuge Act, and granted summary judgment to Defendants on the Clean Water Act and Endangered Species Act (“ESA”) claims (even though the ESA claims are not addressed in the District Court's January 14, 2022 Opinion and Order). Following additional briefing on remedy, the District Court's March 1, 2022 Final Judgment issued the following relief: (1) vacated and remanded the Record of Decision on the Final Environmental Impact Statement, conducted pursuant to NEPA, to the Rural Utilities Service; (2) declared that “the compatibility determination precludes the CHC [Cardinal-Hickory Creek] transmission line as currently proposed from crossing the refuge by right of way or land transfer”; and (3) vacated and remanded the Environmental Impact Statement to the federal agency defendants. Subsequently, on March 4, 2022, the District Court issued a text-only order denying the Intervenors-Defendants' motion for stay pending appeal, and stating that: “after additional briefing from all sides, the court attempted to balance the rights of the parties and provide flexibility to the responsible federal agencies and intervening defendants to discharge their obligations going forward consistent with the law and this court's opinions and orders, without encumbering any defendant with a formal injunction. Even so, the court acknowledges that the impact of its ruling will work important limitations on both defendants and the intervening defendants.” Dkt. 201. The District Court's March 9, 2022 amended Final Judgment differed only in that it corrected a repeated typo in a reference to the date of the associated Opinion and Order (changing “January 12” to “January 14”).
The Final Judgement disposed of all claims, and this Court therefore has jurisdiction over the appeal under 28 U.S.C. § 1291.
Plaintiffs filed their notice of appeal on April 26, 2022, concurrent with filing of this docketing statement, within the 60-day deadline for appeal from cases to which the federal government is a party. Fed. R. App. Pro. 4(a)(1)(B).
No party has filed any motion that tolls the time within which to file an appeal. This case is not a direct appeal from the decision of a magistrate judge.
OFFICIAL CAPACITY FEDERAL DEFENDANTS
Plaintiffs assert claims against the following federal defendants in their official capacities and, to the best of Plaintiffs' current knowledge, these individuals still occupy the following official positions:
• CHRISTOPHER MCLEAN, Acting Administrator, Rural Utilities Service
• CHARLES WOOLEY, Midwest Regional Director, United States Fish and Wildlife Service.
• SABRINA CHANDLER, Manager, Upper Mississippi River National Wildlife and Fish Refuge, United States Fish and Wildlife Service.
• LIEUTENANT GENERAL SCOTT A. SPELLMON, Chief of Engineers and Commanding General, U.S. Army Corps of Engineers.
• COLONEL JESSE CURRY, Commander and District Engineer, Rock Island District, U.S. Army Corps of Engineers. (Formerly Colonel Steven Sattinger).
• COLONEL KARL JANSEN, Commander and District Engineer, St. Paul District, U.S. Army Corps of Engineers.
PRIOR OR RELATED APPELLATE PROCEEDINGS
There is one pending related appeal before the Seventh Circuit. On March 4, 2022, the Intervenor-Defendants in this case filed their own appeal (No. 22-1347) of the same March 1, 2022 Final Judgment and January 14, 2022 Opinion and Order that Plaintiffs appeal here.
There was one prior related appeal arising from this same underlying District Court case. The Intervenors-Defendants in this case has previously appealed the District Court's November 1, 2021 Opinion and Order and November 3, 2021 Preliminary Injunction Order (Dkt. 160, 164) to this Court (Driftless Area Land Conservancy et al. v. American Transmission Company LLC et al., No. 21-3123). They then moved for voluntary dismissal, which this Court granted on March 9, 2022.
There were three prior appeals arising from a different District Court case in which two of the Plaintiffs here challenged the constitutionality of the state agency decision approving the same transmission line at issue in this case. Driftless Area Land Conservancy v. Huebsch, No. 20-1350, 969 F.3d 742 (7th Cir. 2020) (addressing the intervention of Intervenors-Defendants in the case); Driftless Area Land Conservancy v. Valcq, No. 20-3325, 16 F.4th 508 (7th Cir. 2021) (state agency officials' appeal from district court order denying motion to dismiss because of officials' alleged immunity from suit); Driftless Area Land Conservancy et al. v. American Transmission Company, LLC, et al., No. 20-3365 (Intervenors-Defendants' appeal from district court order denying motion to dismiss because of state agency officials' alleged immunity from suit, dismissed for lack of jurisdiction).
Respectfully submitted this 26th day of April, 2022.
CERTIFICATE OF SERVICE
I certify that on April 26, 2022, I electronically filed the forgoing document with the Clerk of Court using the Court's ECF system, which will serve the document on all counsel of record registered for electronic filing in the above-captioned proceeding.