The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake — although the mining company promises it will later “reclaim” the lake, filling it with organic material to make it an even better wildlife habitat.
The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies’ approval, the Court upheld its familiar rule that federal agencies are entitled to deference.
The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called “froth flotation” to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.
The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.
Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.
The Army Corps approved the gold mining plan, finding it was the “least environmentally damaging” way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.
The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges — and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.
In light of the ambiguities in the CWA, the Court looked to the agencies’ interpretation — and found that the agencies had resolved the problem “in a reasonable and coherent way.” An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.
The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for “fill material,” which is solely under the jurisdiction of the Army Corps, not the EPA.
Three justices dissented, arguing that the use of waters as “settling ponds” for harmful mining waste runs “antithetical to the text, structure and purpose of the Clean Water Act.”
The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).

By Michael Combier-Talk Radio News Service
The U.S. Supreme Court ruled in a 8-1 vote that Section 5 of the Voting Rights Act “is a difficult constitutional question we do not answer today” but questioned whether the section is still significant in modern times.
Section 5 requires states with a history of flagrant voter disenfranchisement to seek the approval of a three-judge Federal District Court in Washington, D.C. or the Attorney General whenever they seek to alter state election procedures. Today’s decision of the court came in the case of Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al., in which it was argued that since the district was not a state, they should not be required to seek Federal approval.
The issues raised in this case were the constitutionality of the Voting Rights Act as well as the possibility for the Austin district to opt out of Section 5’s requirements.
Chief Justice John Roberts delivered the opinion of the Court. “The historic accomplishments of the Voting Rights Act are undeniable…In part due to the success of that legislation, we are now a very different nation,” Roberts wrote.
“Things have changed in the South,” Roberts continued. “[Section 5‘s] formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions…the Act’s preclearance requirements and its coverage formula raise serious constitutional questions.”
Another question raised concerns over the repeated authorization of Section 5, which was only intended to last five years, by Congress. It was extended for another twenty-five years in 2006.
The Court reversed the judgement of the District Court and concluded that the Voting Rights Act “permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements”. Since the utility district is entitled to apply for bailout, the Court believed there was no reason to decide the constitutional issue.
Justice Clarence Thomas wrote separately, saying he would have struck down Section 5 as unconstitutional.

An employee bringing an age-discrimination lawsuit against his employer must prove that age was the determining factor in the demotion or firing, the Supreme Court held today in a 6-3 ruling.
Plaintiff Jack Gross, 54, sued his employer, FBL Financial Group, Inc., after FBL demoted him and gave his old position to a younger employee. Gross brought his action under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse actions against an employee “because of such individual’s age.”
Over FBL’s objections, the judge instructed the jury that if Gross proved his age played any part in the decision to demote him, the burden would shift to FBL to prove it would have demoted him regardless of his age. The jury returned a verdict for Gross, awarding him over $46,000 in lost compensation.
Today the Supreme Court vacated that verdict, finding that the judge had improperly instructed the jury.
In an ADEA disparate-treatment claim, the plaintiff has the burden of proving, by a preponderance of the evidence, that age was the “but-for” cause — that is, the determining factor — of the employer’s decision.
Lower courts were inappropriately applying Title VII precedent to this ADEA action, the Court found. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. But unlike Title VII, the burden of proof in ADEA age-discrimination claims “does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote for the majority.
The case was Gross v. FBL Financial Services, Inc.

A convicted defendant has no constitutional right to access the state’s DNA evidence, a divided Supreme Court ruled today.
In a 5-4 decision, the Court held that legislatures have the right to establish rules regarding access to DNA evidence, and indeed 46 states and the federal government have already done so. A balance must be sought between the value of DNA testing and the need for conditions on access, and such questions are best handled by the legislature, the Court held.
“There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite,” Chief Justice John Roberts wrote for the majority.
The case arose from a 1993 conviction of William Osborne for kidnapping, assaulting and raping a prostitute in Anchorage, Alaska. Prosecutors had produced results from a DNA test that showed Osborne may have committed the crimes. However, under the DNA test in question, approximately 16% of black individuals would also be implicated. Osborne is black.
During the trial, Osborne’s attorney declined the opportunity to perform DNA testing for tactical reasons. After being sentenced to a prison term of 26 years, Osborne sought access to the state’s biological evidence in order to conduct more advanced DNA testing, at his own expense. Osborne argued that the Constitution’s Due Process clause allowed him postconviction access to the evidence.
Acknowledging that DNA testing has “an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” the Court nonetheless held that there was no such right of access in the Due Process clause. “There is no reason to constitutionalize the issue in this way,” Roberts wrote.
Although Alaska is not one of the 46 states that has implemented specific procedures for access to the state’s DNA evidence, Alaskan state courts are adapting existing discovery rules for that purpose, the Court said.
“We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general,” the Court wrote, “and nothing inadequate about how those procedures apply to those who seek access to DNA evidence.”
Four justices dissented, criticizing as “arbitrary” the state’s refusal to turn over its DNA evidence.
“The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether [Osborne] committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice,” wrote Justice John Paul Stevens for the dissent.
“I am convinced that Osborne has a constitutional right of access to the evidence he wishes to test.”
The case was District Attorney’s Office for the Third Judicial District v. Osborne.

The U.S. Supreme Court ruled today that F. Scott Yeager, a former executive at Enron Broadband Services, cannot be retried for insider trading. In 2005 Yeager was acquitted of securities and wire fraud charges, but the jury deadlocked on insider trading charges. The government attempted to retry Yeager on the insider trading charges, but Yeager protested that such a retrial would violate the Double Jeopardy Clause of the Constitution.
Since Yeager had been acquitted of the fraud charges, he argued, the jury must have found that he had not possessed insider information, and if he had not possessed insider information, it was impossible for him to have traded on the basis of such information.
Generally courts are not allowed to consider jury’s motivations, but the lower courts had trouble reconciling his jury’s acquittal on some charges with the deadlocking on others, since there were so many factors in common between the charges.
The Supreme Court decision, authored by Justice Stevens, said that courts can consider what a jury decided, but not what a jury failed to decide. In other words, the court must consider whether an insider trading charge would be allowed, taking into account only the earlier acquittal on fraud charges. Juries may have many reasons for deadlocking, and it is impossible to know why they did what they did.
Because the fraud charges were found by the lower court to be based on the same basis as the insider trading charges, the insider trading charges are now barred from prosecution. The Supreme Court decision did leave open a small door for a lower court to reconsider its analysis of the legal issues: if a lower court finds that it is possible to have committed insider trading and not fraud, a new trial may be possible.
The decision was 6-3. Justice Kennedy agreed with the majority on the Double Jeopardy interpretation, but wrote separately to say that the lower court must reconsider the legal analysis of the two charges.
The case was Yeager v. United States.

The Alliance for Justice issued a report on Supreme Court nominee Sonia Sotomayor and found that the judge takes a notably hard-line stance on crime. William Yeomans, the Legal Director of the Alliance for Justice, said that she has consistently ruled against criminals more strongly than her fellow judges have. (0:28)

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By Learned Foote- Talk Radio News Service
The Supreme Court unanimously upheld the 3rd Circuit in Nijhawan v. Holder, Attorney General on June 15th. The law says that the government may deport an alien who is convicted of an “aggravated felony.”
The question before the court dealt with the interpretation of the term “aggravated felony.” Immigration law holds that this crime includes “fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
The word “felony” may be read with a “categorical” or a “circumstance-specific” interpretation. A categorical interpretation defines the crime generically, and requires a judge to examine the statute in question for a monetary threshold. The statutes used to indict the petitioner did not require the jury to rule on the amount of the loss.
However the Supreme Court ruled that the statute contains both categorical and circumstance-specific language, but the “aggravated felony” language allows for a circumstance-specific interpretation, which examines the facts of the case in question. Sentenced to pay $683 million in restitution, the petitioner had committed crimes resulting in a loss much greater than $10,000.
The petitioner also argued that in order to determine the amount of the loss, evidence presented by the government must include the ruling of the judge or the verdict of a jury. However, the petitioner had at least one opportunity to contest accusations regarding the amount of loss, which he did not do. He presented no conflicting evidence during the trial, and his sentence required him to pay $683 million. Justice Breyer delivered the Court’s opinion.

Today the Supreme Court announced it will hear the case of United Student Aid Fund v. Espinosa.  The case involves a question about procedures an individual most go through in order to reduce student loan debt as part of a bankruptcy proceeding.
Espinosa filed for Chapter 13 and the bankruptcy judge was able to reduce his loans from $17,823.15 to $13,250.  The Fund received notice of this plan and did not make any objections to it.
Three years after Espinosa’s filed for bankruptcy, the Fund claimed that Espinosa still needed to pay back the original loan of $17,823.15.  The Fund claims that they were allowed to revisit Espinosa’s case and ask for full payment because Espinosa never initiated a court hearing to settle the loan, but instead just asked the bankruptcy judge to reduce the amount.
Judge Kozinski, who wrote the opinion for the 9th Circuit, said that the Fund should have taken the opportunity to object to Espinosa’s bankruptcy plan when the Fund received notice three years ago.
The court will likely hear the case in November.

By Celia Canon- Talk Radio News Service
On Monday, the U.S. Supreme Court ruled that West Virginia Justice Brent Benjamin should have recused himself when holding a Court hearing in 2007, which involved an important contributor to Benjamin’s election campaign conducted three years prior.
The decision came after the Supreme Court voted 5 to 4 on whether Justice Benjamin Brent, who had been elected in 2004 following a $3 million donation from Massey Coal Company’s Chairman Don Blankenship, should have recused himself when ruling over the Hugh M. Caperton, et al. v. Massey & Co case.
In 2002, a West Virginia jury found Massey Coal & Co. liable for fraudulent misrepresentation, concealment and tortious interference with existing contractual relations. The jury condemned Massey & Co to $50 million to be awarded to the plaintiff, Caperton et al. in June, 2004. Massey & Co filed for appeal but its demand was rejected by the state trial court.
In 2004, West Virginia held it judicial elections. Massey & Co sponsored Brent Benjamin rather than the incumbent Justice so as to renew the possibilities of appealing but before Massey & Co filed its appeal, Caperton moved to prevent this by calling attention to the Due Process Clause and to the State’s Code of Judicial Conduct based on Massey & Co’s campaign involvement.
The Due Process Clause under the 14th amendment of the U.S constitution ensures that no state should “deprive any person of life, liberty, or property, without due process of law.”
Additionally, the Code of Judicial Conduct states that “A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved,” according to the U.S Courts online.
Despite receiving important funding from the party found liable in the Caperton v. Massey case during his judicial campaign, Justice Benjamin refused to recuse himself, and this for a total of three times.
The controversial topic involved whether or not to trust Judicial figures’ capability to remain unbiased when ruling on a question that involves a personal dimension.
In an interpretation Justice Anthony Kennedy delivered, he said “Under our precedents there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally of this case,” adding that the judgment of the State Supreme Court of West Virginia is dissented “for further proceedings not inconsistent with this opinion.”
Kennedy cited “risks of biases”, impartiality and “personal involvement” and the the foundations for the Supreme Court’s decision.

By Courtney Ann Jackson-Talk Radio News Service
According to federal law, foreign countries cannot be sued by individuals in the U.S. and that is one of the points the Supreme Court had to consider before releasing its decision today. But an exception applies that a country can be sued by American citizens if it is designated as a sponsor of terrorism. Immunity is ordinarily attached to foreign sovereigns.
 
In 2003, Congress authorized the President to make exceptions with respect to Iraq, which was designated as a sponsor of terrorism. The Emergency Wartime Supplemental Appropriations Act repealed previous restrictions. President George W. Bush said that year that EWSAA allowed him to “make inapplicable with respect to Iraq of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.”
That same year, families of torture victims filed suits against Iraq, alleging mistreatment by Iraqi officials during, and following the 1991 Gulf War. Kenneth Beaty is a U.S. citizen who was working as an oil-rig supervisor in Kuwait when he was arrested by Iraqi border guards after asking them for driving directions. William Barloon was serving as an aircraft maintenance supervisor in Kuwait when border police also arrested him. The two men were taken to prison in Baghdad where they were allegedly denied basic living necessities and their case is entitled Republic of Iraq v. Beaty.
The unanimous Supreme Court decision was delivered today by Justice Scalia. It stated that Iraq’s sovereign immunity was restored when the President exercised his EWSAA authority to make Iraq an exception. The ruling said that the U.S. courts therefore lost jurisdiction to hear suits against Iraq and should have dismissed the cases at that point. The judgement of the Court of Appeals was reversed. The Court also decided that the subset provision applied to the President’s power to create waiver. However, the waivers created by that power or the restoration of Iraq’s sovereignty, are not affected by the sunset.