Case Summaries

Family Law

[07/22] In re Esmeralda S.
Juvenile court's order terminating defendant-mother's parental rights to her child is affirmed over claims of error that: 1) defendant's due process rights were violated when the juvenile court appointed her a guardian ad litem; and 2) the juvenile court did not properly inquire into her and the minor's father's possible American Indian ancestry for purposes of complying with Indian Child Welfare Act.

[07/18] In re Brandon T.
Order terminating mother's parental rights over her child is affirmed where: 1) there was sufficient evidence that the minor was specifically adoptable by his relative caretakers; 2) the Indian Child Welfare Act does not require more than one expert at a section 366.26 hearing; 3) there was sufficient evidence that continued custody would result in serious emotional or physical harm to the minor; and 4) mother was not prejudiced by a lack of evidence in regard to prevailing social and cultural standards of the minor's tribe.

[07/18] Duran v. Beaumont
Dismissal of a motion for the return of petitioner's daughter to Chile is affirmed where, for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, petitioner had only access rights, not custody rights, leaving the district court without jurisdiction to order the return of the child.

[07/16] In re Marriage of Sonne
In a marriage dissolution proceeding, a conclusion that repurchased service credits for husband's years of service to his employer prior to his wife were community property is affirmed where the repurchase of service credits involved the commingling of separate and community property in the use of community funds to purchase the service credits. However, assignation to the wife of the entire survivor benefit of which she was the irrevocable beneficiary is reversed and remanded where the husband was only compensated for the cost of the survivor benefits when its value far exceeded its cost.

[07/10] In re A.M.
In deciding whether to grant a parent's request for self-representation in a juvenile dependency proceeding, a juvenile court must consider the child's right to a prompt resolution of custody status. The juvenile court has discretion to deny the request when it is reasonably probable that self-representation will unduly delay the proceedings, impairing the child's right to a prompt resolution of custody status. A parent's disruptive behavior may be sufficient, but is not necessary to deny the request.

[06/30] Harper v. Division of Family Services
In a parental right adjudicatory proceeding, the court's decision to terminate respondent's parental rights and transfer of the minor to the Division of Family Services is affirmed where: 1) there was clear and convincing evidence to terminate parental rights; and 2) the state was able to prove that termination of parental rights was in the minor's best interest.

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Environmental Law

[07/23] Northwest Envtl. Advocates v. US Envtl. Prot. Agency
In an action challenging a regulation originally promulgated by the EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA), a decision vacating the regulation is affirmed where: 1) the district court had subject matter jurisdiction over the suit; 2) the EPA acted ultra vires in promulgating the regulation and its denial of plaintiffs' 1999 petition requesting a repeal of the regulation was not in accordance with law; and 3) the remedial order was a proper exercise of the district court's discretion.

[07/21] CleanCOALition v. TXU Power
In a citizen suit under the Clean Air Act (CAA) seeking to prevent power-plant construction, dismissal for lack of subject-matter jurisdiction is affirmed where the statute does not authorize federal court jurisdiction: 1) to redress alleged pre-permit, pre-construction, pre-operation CAA violations; or 2) in pre-construction citizen suits against facilities that have either obtained a permit or are in the process of doing so, as opposed to entities proposing to construct a facility without a permit whatsoever.

[07/18] Defenders of Wildlife v. Gutierrez
In a suit challenging a denial of an emergency rulemaking petition under the ESA and requesting the Coast Guard's compliance with several ESA sections, summary judgment for defendants is affirmed as to the rulemaking petition and reversed as to the Coast Guard issue where: 1) an emergency rule would curtail the public's notice and comment period and analysis of the rule's environmental impact; 2) appellants meet the standing requirement to challenge appellees' traffic separation schemes; and 3) appellants demonstrated that appellee's actions are not merely ministerial but amount to final agency action in setting traffic separation schemes.

[07/17] Envtl. Prot. & Info. Ctr. v. California Dep't of Forestry & Fire Prot.
In a case arising from the "Headwaters Agreement" consummated by real party-Pacific Lumber Company and the state and federal governments, a court of appeals' decision upholding various related regulatory approvals for the logging of real party's property is affirmed in part, but reversed in part where: 1) a challenge to real party's Sustained Yield Plan (SYP), a master plan for logging a large area, was valid inasmuch as an identifiable plan was never approved; 2) any resubmitted SYP should have an adequate analysis of individual planning watersheds, which the plan as originally approved did not contain; and 3) a state Incidental Take Permit, authorizing the capturing and killing of endangered and threatened species incidental to lawful activity, was deficient because it included overly broad "no surprises" clauses limiting in advance real party's obligation to mitigate the impacts of its logging operations.

[07/17] Burlison v. US
Judgments finding that plaintiffs-landowners have an easement by reservation over a field-access road crossing a national wildlife refuge, and that the government lacks power under the National Wildlife Refuge System Administration Act to regulate that easement, are affirmed in part and reversed in part where: 1) state law on parol evidence does not prevent a court from considering letters expressing prior deedholders' intent to reserve an express easement over the road, 2) the Property Clause gives Congress the power to regulate privately held easements over federal land, and 3) the Refuge Act properly grants the Fish and Wildlife Service the power to impose reasonable regulations on the use of the easement.

[07/15] Fernandez v. California Dep't of Pesticide Regulation
In an action challenging the respondent-Department of Pesticide Regulation's regulations on the use of methyl bromide, the trial court's writ of mandate directing agency to comply with section 12980 and 12981 is affirmed where: 1) Food and Agriculture Code section 12981 requires respondent to collaborate closely with the Office of Environmental Health Hazard Assessment (OEHHA) in determining the health risks from exposure to pesticide; 2) respondent may not develop regulations on its own and merely inform OEHHA of them, and choose whether or not to adopt any recommendations made by OEHHA; 3) section 12980 requires that respondent work with OEHHA's recommendations during the development process; and 4) California Regulations section 6450(h), 6450.2(a), and 6784(b)(2)(C) fall under sections 12980 and 12981.

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Military

[07/22] CNA v. US
In a negligence suit under the Federal Tort Claims Act (FTCA) stemming from a robbery and shooting by an Army recruit, dismissal of plaintiffs'-insurers' claims is affirmed where: 1) under the FTCA's requirements for waiving sovereign immunity, the question of whether an agent of the government was acting within the scope of his employment is a subject-matter jurisdiction issue properly analyzed under Fed. R. Civ. P 12(b)(1) for purposes of considering a motion to dismiss; 2) the Army recruiter against whom negligence was alleged was not acting within the scope of his employment; and 3) no evidence supported a negligent-supervision claim against either the recruiter's supervisor or the Army as a whole.

[07/16] Lizzio v. Dep't of the Army
In an appeal from an action of the Department of the Army removing petitioner from his position as a special agent, dismissal of the appeal for lack of jurisdiction is vacated and remanded where the Merit Systems Protection Board erred in its analysis by relying on a ground for breach of a "last chance agreement" different from the one found by an AJ to have been asserted by the agency in the notice of breach.

[07/15] Garcia v. US Air Force
In a suit brought under the Federal Tort Claims Act for personal injuries and damages due to exposure to toxic mold in plaintiff's on-base housing, summary judgment and other rulings for defendant are affirmed where: 1) there was no specific, mandatory course of conduct regarding the inspection of plaintiff's roof; 2) there was no abuse of discretion in denying a Rule 56(f) request for failure to identify any specific facts to create a genuine issue of material fact; and 3) recently obtained evidence did not alter a finding that the discretionary function exception precluded the suit.

[07/15] Bryant v. Gates
In a suit alleging violations of the First Amendment after the Department of Defense refused to allow advertisements to be published in its Civilian Enterprise Newspapers (CEN), summary judgment for defendant is affirmed where: 1) section 4.11 of DOD Instruction 5120.4's ban on political advertisements is not unconstitutionally vague on its face or as applied to plaintiff's ads; 2) the advertising section of a CEN is a nonpublic forum; and 3) the restriction upon speech in section 4.11 is reasonable in light of the purpose of the forum and is viewpoint neutral.

[07/15] Al-Marri v. Pucciarelli
In a closely divided opinion, denial of a petition for a writ of habeas corpus challenging petitioner's military detention as an enemy combatant is reversed where: 1) Congress has empowered the President to hold the petitioner as an enemy combatant if the allegations against him are true; nevertheless, 2) assuming Congress has empowered the President to detain petitioner as an enemy combatant provided its allegations against him are true, petitioner has not been afforded sufficient process to challenge his designation as an enemy combatant.

[05/28] Lane v. Halliburton
In an action arising from plaintiff's contract work as truck drivers for defendants in Iraq and Afghanistan, dismissal of plaintiffs' claims for damages from injuries, intentional infliction of emotional distress, and civil rights violations, is reversed and the case remanded where: 1) defendant's conduct could be examined by a federal court without violating the separation of powers; 2) judicial standards exist to resolve the claim in the present context between an employer and an employee in tort; and 3) the court will not be drawn into a reconsideration of military decisions or be forced to announce opposition to Executive or Congressional policy.

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