About Environmental Law

Welcome to the home page for Environmental Law, the nation’s oldest law review dedicated solely to environmental issues. Environmental Law is a premier legal forum for environmental and natural resources scholarship. Environmental Law is published quarterly by the students of Lewis & Clark Law School, 10015 S.W. Terwilliger Blvd., Portland, OR 97219, in the Spring, Summer, Fall, and Winter. The views expressed in the volumes do not necessarily reflect those of the editorial boards.

Fairbanks North Star Borough v. U.S. Army Corps of Engineers

Posted on November 14, 2009 by Environmental Law

The Fairbanks North Star Borough (Fairbanks) petitioned the Ninth Circuit for review of the United States Army Corps of Engineers’s (Corps) approved jurisdictional determination, which formally expressed the Corps’s view that Fairbanks’s property contained waters of the United States subject to regulation under the Clean Water Act (CWA).[1] The Ninth Circuit held that the Corps’s determination was not a final agency action under the Administrative Procedure Act (APA)[2] and affirmed the district court’s decision to dismiss the case for lack of jurisdiction.

Under section 404 of the CWA, “any discharge of dredged or fill materials” into “waters of the United States” is forbidden unless authorized by a permit.[3] The Corps’s regulations define “waters of the United States” to include “most wetlands adjacent to waters of the United States that are not themselves wetlands.”[4]

Fairbanks wanted to develop a 2.1 acre tract of land into playgrounds, athletic fields, and accompanying facilities for recreational use. Because the project involved the placement of fill material, Fairbanks requested a jurisdictional determination from the Corps to ensure that the property was not subject to the CWA. In response to Fairbank’s request, the Corps issued a letter indicating the parcel contained wetlands subject to CWA regulatory jurisdiction because the entire parcel contained waters of the United States.

Fairbanks timely filed an administrative appeal of the jurisdictional determination, but the Corps found the appeal to be without merit. Soon thereafter, Fairbanks filed suit in the United States District Court for the District of Alaska to set aside the Corps’s determination, asserting that the property could not possibly be a wetland for purposes of the CWA because the presence of shallow permafrost indicated the tract was insufficient to “support . . . a prevalence of vegetation typically adapted for life in saturated soil conditions” and thus precluded the tract from meeting the Corps’s regulatory definition of a wetland.[5] The district court granted the Corps’s motion for judgment on the pleadings, concluding that the determination was not a final agency action for purposes of judicial review, that Fairbanks’s challenge was unripe, and that the CWA statutorily precluded review.

On appeal, the Ninth Circuit reviewed de novo the district court’s dismissal on the pleadings and the determination that the court lacked subject matter jurisdiction. Under the APA, an agency’s decision must be final for the reviewing court to have jurisdiction.[6] To determine whether the Corps’s decision was final, the Ninth Circuit applied the two-prong test articulated in Bennett v. Spear.[7] Under Bennett, for a court to find an agency action is final, the court must first conclude that the action marks the “consummation” of the agency’s decision-making process.[8] Second, the action must “be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’”[9]

Addressing the first prong of the Bennett test, the Ninth Circuit concluded the approved jurisdictional determination by the Corps marked the end of the agency’s decision-making process and represented the Corps’s “considered, definite and firm position about the presence of jurisdictional wetlands” on Fairbanks’s property.[10] Because the determination was valid for five years and because there was no indication that the determination was subject to further consideration or revision, the Ninth Circuit held that the Corps’s determination contained its ultimate decision regarding Fairbanks’s property. Although the Corps argued approved jurisdictional determinations are only one step in the permitting process, the Ninth Circuit was under no obligation to defer to the agency’s opinion of whether the action was final for purposes of judicial review.[11] Thus, the court found that the Corps’s decision was the termination of the agency’s decision-making process.

Turning to the second prong of the Bennett test, the Ninth Circuit held that the Corps’s approved jurisdictional determination did not fix any legal rights or obligations and was not a final agency action for purposes of judicial review. The court reasoned that the Corps’s determination lacked legal force, did not alter or fix a legal relationship, and did not command Fairbanks to take any action. Additionally, the court noted that Fairbanks’s legal obligations flowed directly from the CWA, and not from the Corps’s determination.

Finally, the Ninth Circuit rejected Fairbanks’s arguments regarding the legal consequences of the Corps’s determination. Fairbanks asserted that the decision would prevent it from later claiming it acted with good faith, would effectively require it to apply for a permit under the CWA, and would deprive it of the opportunity to obtain a contrary jurisdictional determination. The court declined to accept Fairbanks’s assertion, instead concluding the borough’s arguments confused the “practical effect of Fairbanks having been placed on notice that construction might require a Section 404 permit” with the legal consequences arising exclusively from the requirements of the CWA.[12]

In sum, although the Corps’s approved jurisdictional determination constituted the agency’s ultimate decision on whether Fairbanks’s property contained wetlands subject to the CWA, the decision did not fix any rights, obligations, or legal relationships. Accordingly, the Ninth Circuit concluded that the Corps’s determination was not a final agency action and affirmed the district court’s dismissal of the case for lack of subject matter jurisdiction.

^[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2006).

^[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[3] 33 U.S.C. § 1344 (2006).

^[4] Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 589 (9th Cir. 2008); see also 33 C.F.R. § 328.3(a)(7) (2008).

^[5] 33 C.F.R. § 328.3(b) (2008) (“The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”).

^[6] 5 U.S.C. § 704 (2006).

^[7] 520 U.S. 154, 177-78 (1997).

^[8] Id. at 178.

^[9] Id.(quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 (1970)).

^[10] Fairbanks N. Star Borough, 543 F.3d 586, 593 (9th Cir. 2008).

^[11] Id. at 593 n.7(citing Blincoe v. FAA, 37 F.3d 462, 464 (9th Cir. 1994) (per curiam)).

^[12] Id. at 595.The court explained that “[w]hatever Fairbanks now chooses to do, it will be no more or less in violation of the CWA than if it had never requested an approved jurisdictional determination.” Id. at 596.The court noted that Fairbanks had neither applied for a section 404 permit nor had the Corps initiated any enforcement or pre-enforcement action against Fairbanks. Id. at 590.

Coos County Board of County Commissioners v. Kempthorne

Posted on November 14, 2009 by Environmental Law

The Coos County Board of County Commissioners (Coos County) appealed a district court decision dismissing its action brought against the United States Fish and Wildlife Service, the Director of the United States Fish and Wildlife Service, and the Secretary of the Interior (collectively FWS). Coos County filed suit in the United States District Court for the District of Oregon under the Endangered Species Act (ESA)[1] citizen suit provision and under the Administrative Procedure Act (APA),[2] alleging that FWS had failed to act on a duty to promptly remove the marbled murrelet, a rare seabird that nests in old growth forests, from the threatened species list following a five-year review. The district court granted FWS’s motion to dismiss for lack of subject matter jurisdiction, or alternatively, for failure to state a claim. The Ninth Circuit affirmed the district court’s dismissal, holding that FWS did not have a nondiscretionary duty under the ESA to delist the marbled murrelet, despite having concluded that it did not qualify as a distinct population segment protected under the ESA.

Marbled murrelets are dove-sized birds that feed on sea life and nest in old growth forests.[3] In 1992, the population of the murrelets living in Washington, Oregon, and California crashed to approximately 9000 birds because a loss of old growth forest habitat from timber harvesting limited potential nest sites and left remaining nest sites more accessible to predators and because of threats from gill-net fishing boats and oil spills.[4] Following National Audobon Society’s petition for listing and a subsequent lawsuit,[5] FWS listed the murrelet population living in Washington, Oregon, and California-referred to as the tri-state murrelet-as a “threatened species.”[6] In its listing decision, FWS explained it was listing the tri-state murrelet as a distinct population segment in compliance with the district court’s order, but that it intended to reexamine whether the tri-state murrelet qualified as a protectable ESA species.[7] However, FWS neither altered nor proposed alteration of the listing. Instead, FWS designated critical habitat[8] and adopted a recovery plan for the tri-state murrelet.

At the completion of a statutorily-mandated,[9] five-year review in 2004, FWS concluded the tri-state murrelet did not meet the definition of a “distinct population segment.”[10] Despite the finding, FWS did not alter the protections afforded to the tri-state murrelet. FWS determined delisting was not warranted, relying on the rationale first articulated by the 1992 district court: Even if the tri-state murrelet did not constitute a distinct population segment, the fact that the marbled murrelet remained threatened through a significant portion of its range provided an alternative basis for listing.[11]

Based on the five-year review’s determination that the tri-state population was not a distinct population segment, Coos County advised FWS of its intent to sue to require FWS to delist the murrelet.[12] When FWS did not comply with Coos County’s request to delist the murrelet, Coos County filed suit under the citizen-suit provision of the ESA, alleging that FWS had violated both the ESA and APA. First, Coos County argued that under the ESA’s publishing requirements, once FWS determined in the five-year review that the tri-state murrelet was not a distinct population segment, it should have concluded that the murrelet could not be protected under the ESA and promptly published a proposed rule for delisting. Second, Coos County argued FWS’s failure to delist the tri-state murrelet was “agency action unlawfully withheld or unreasonably delayed” under the APA.[13] FWS filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court granted the motion and Coos County timely appealed to the Ninth Circuit.

The Ninth Circuit characterized Coos County’s complaint as proceeding under the ESA’s citizen suit provision[14] and the APA,[15] but noted that the ESA claim would preclude the APA claim if the two claims were identical.[16] Because Coos County’s claims against FWS depended upon a waiver of sovereign immunity for federal court jurisdiction, the Ninth Circuit reasoned that the claims could proceed “only if FWS has a nondiscretionary duty to begin the delisting process-promptly or otherwise-as a result of the determination made in the Five-Year Review and has failed to act upon that duty.”[17] Accordingly, the court analyzed the specific five-year review provision which provided that “[e]ach [five-year review] determination . . . shall be made in accordance with the provisions of subsections (a) and (b) of [16 U.S.C. § 1533].”[18] To consider Coos County’s claim that the five-year determination incorporated the specific deadlines listed by the referenced provisions, the Ninth Circuit sought to evaluate the text and context of section 1533, as well as regulations implemented pursuant to section 1533.

Before focusing on these specific tools of statutory interpretation, the Ninth Circuit provided an overview of section 1533 of the ESA and described Coos County’s fundamental misinterpretation of it. The court explained that the ESA sets out two methods for listing species for protection and for making determinations concerning those species.[19] The first method allows for the Secretary of the Interior to identify species for protection on his own initiative. The second method allows interested citizens to file a petition compelling listing, and contains a “promptly publish” deadline triggered by the filing of a petition. The Ninth Circuit held the “fundamental flaw in Coos County’s statutory argument is that it conflates these two different mechanisms, inappropriately shoe-horning the five-year review process, a statutory step of the kind conducted on the Secretary’s initiative, into the system of deadlines created to address citizen-initiated petitions.”[20] The statutory text, statutory structure, and associated regulations supported the court’s conclusion to affirm the district court’s dismissal of Coos County’s complaint.

In analyzing the text of the ESA, the Ninth Circuit noted that section 1533(b)(3), the citizen petition provision, contains the “promptly publish” requirement relied upon by Coos County. The citizen provision, importantly, also incorporates explicit statutory deadlines, including requiring the Secretary to review petitions to determine whether listing is warranted.[21] In contrast, the five-year review provision, which is agency-initiated, does not contain any explicit publication deadlines.[22] Thus, the ESA “sets out two review processes, one with deadlines, one without, and includes deadlines only for the petition process.”[23] Explaining that Coos County’s interpretation of the ESA would require the judiciary to pick and choose among the different portions of the ESA, the court rejected Coos County’s argument that the five-year review provision incorporated statutory deadlines from the petition provision. Coos County argued that section 1533(c)(2), which requires that “[e]ach [five-year review] determination . . . shall be made in accordance with” the generally applicable provisions of section 1533(b), required the FWS to comply with the publication deadlines set out in section 1533(b) for responding to citizen petitions. In response, the Ninth Circuit explained that most of the requirements in sections 1533(a) and (b) govern the listing decision-making process in general, not the petition process. For example, section 1533(a)(1) sets out the substantive factors the Secretary must consider in making a listing decision, and section 1533(b)(1)(A) dictates that the decisions are to be based on the basis of the “best scientific and commercial data available.”[24] In the court’s view, the “in accordance with” clause of section 1533(c)(2) incorporates the provisions that generally govern listing determinations, the five-year review process, and delisting determinations, “and not the deadlines that pertain only to petitions.”[25]

The Ninth Circuit also concluded Coos County’s interpretation of the ESA was unsupported by the statutory structure. The court noted that the basic provisions of the ESA as originally enacted gave the Secretary considerable scheduling discretion and contained no deadlines governing the publication of a proposed rule. Only after Congress became aware that such delays could undermine timely implementation of the statutory scheme did it amend the ESA by adding the petition process provisions and the respective mandated deadlines.[26] Coos County’s reading of the statute would undermine the statutory scheme because it would “turn the five-year review process into a hybrid of the two, otherwise distinct, decision-making models that the ESA sets out.”[27] Additionally, the court reasoned that incorporating some of the petition process into the agency-initiated process risked disturbing the balance between “judicial review, agency expertise[,] and the public’s right to a healthy, sustainable ecosystem which fosters biological diversity.”[28] Based on this division between the ESA’s agency-initiated determination and petition-driven actions, the court rejected Coos County’s interpretation of the statute.

The Ninth Circuit’s analysis of implementing regulations also supported its view that the “in accordance with” clause of section 1533(c)(2) is intended only to ensure that five-year review determinations are made consistent with the general standards provided for ESA determinations, and not to incorporate any deadlines relating specifically to the citizen petition process. As the court explained, the regulation governing the five-year reviews[29] does not contain any “promptly publish” requirement. The regulation merely specifies how a determination during the five-year review is to be made, without importing any deadlines from the petition process into the five-year review determination.[30]

Having rejected Coos County’s interpretation of the ESA provisions, the Ninth Circuit held Coos County’s challenge to FWS’s failure to delist the tri-state murrelet must also fail. First, the Ninth Circuit held that Coos County’s ESA claim precluded its APA claim because the two were essentially identical, and the ESA claim-if successful-could provide Coos County with an “adequate remedy.”[31] Under the ESA citizen suit provision, Coos County must allege “a failure of the Secretary to perform any act or duty under section 1533 . . . which is not discretionary with the Secretary.”[32] The Ninth Circuit held that Coos County could not show that the Secretary failed to perform a nondiscretionary duty because FWS lacked any duty under the five-year review procedure to 1) to promptly publish a change in listing status or to 2) delist the tri-state murrelet after determining that delisting was not warranted. Because Coos County failed to show that FWS has “failed to take a discrete agency action that it is required to take,” it also failed to state a claim for relief. [33]

Although the Ninth Circuit affirmed the district court’s dismissal, the court explained that the county is not “without recourse” because it was free to file a delisting petition.[34] The court explained such a petition would not be futile because such a petition may cause FWS to reconsider the conclusions drawn in its five-year review, even though the petition may not ultimately succeed.

In conclusion, the Ninth Circuit affirmed the dismissal of Coos County’s complaint against FWS. The court held that FWS did not have a mandatory duty to promptly delist the tri-state murrelet from protections under the ESA after the five-year review because the review provision did not incorporate the deadlines from the petition provisions and because the five-year review determined that a delisting was unwarranted. Because Coos County’s claim under the APA duplicated its ESA claim, it was precluded. The court ruled that Coos County could use the petition process if it “wishes to force FWS to act swiftly” to consider delisting the tri-state murrelet.[35]

^[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[3] Determination of Threatened Status for the Washington, Oregon, and California Population of the Marbled Murrelet (Listing Rule), 57 Fed. Reg. 45,328, 45,328-29 (Oct. 1, 1992).

^[4] Id. at 45,329, 45,333-36.

^[5] Marbled Murrelet v. Lujan, No. C91-522R, slip op. (D. Wash. Sept. 17, 1992).

^[6] A species qualifies as a “threatened species” under the ESA if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20) (2006).

^[7] Listing Rule, 57 Fed. Reg. at 45,330.

^[8] Final Designation of Critical Habitat for the Marbled Murrelet, 61 Fed. Reg. 26,256, 26,258 (May 24, 1996).

^[9] See 16 U.S.C. § 1533(c)(2) (2006) (requiring FWS to conduct, at least every five years, a review of all species protected under the ESA and to determine on the basis of such a review whether the listing status of protected species should be changed).

^[10] Under its distinct population segment policy, FWS first considers whether a population is discrete relative to “the remainder of the species to which it belongs.” If the species is discrete, the FWS inquires into the “significance” of the population to the species as a whole. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996).

^[11] U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review 6 (2004), available at http://www.fws.gov/Pacific/ecoservices/endangered/recovery/Documents/Marbled%20murrele.pdf(citing Marbled Murrelet v. Lujan, No. C91-522R, slip op. at 12 (D. Wash. Sept. 17, 1992).

^[12] See 16 U.S.C. § 1540(g)(2) (2006) (requiring notice for ESA citizen suits).

^[13] 5 U.S.C. § 706(1) (2006).

^[14] 16 U.S.C. § 1540(g)(1) (2006).

^[15] 5 U.S.C. § 706(1) (2006).

^[16] See Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9th Cir. 1998).

^[17] Coos County Bd. of County Comm’rs v. Kempthorne (Coos County), 531 F.3d 792, 803 (9th Cir. 2008).

^[18] 16 U.S.C. § 1533(c)(2) (2006).

^[19] Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 834 (9th Cir. 2001).

^[20] Coos County, 531 F.3d at 804.

^[21] See 16 U.S.C. § 1533(b)(3) (2006).

^[22] Compare id. § 1533(b)(3)(A), with id. § 1533(c)(2).

^[23] Coos County, 531 F.3d at 805.

^[24] 16 U.S.C. § 1533(b)(1)(A) (2006).

^[25] Coos County, 531 F.3d at 807.

^[26] See Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 840 (2001); see also Endangered Species Act Amendment of 1982, Pub. L. No. 97-304, § 2, 96 Stat. 1411, 1412-14 (1982).

^[27] Coos County, 531 F.3d at 808.

^[28] Wyoming v. U.S. Dep’t of the Interior, 360 F. Supp. 2d 1214, 1229 (D. Wyo. 2005),aff’d on other grounds, 442 F.3d 1262 (10th Cir. 2006).

^[29] 50 C.F.R. § 424.21 (2008).

^[30] The court also noted that 50 C.F.R. § 424.21references three regulations that follow the statutory provisions applying to determinations generally, instead of the statutory provisions applying to the petition process.

^[31] Brem-Air Disposal, 156 F.3d 1002, 1004-05 (9th Cir. 1998).

^[32] 16 U.S.C. § 1540(g)(1)(C) (2006).

^[33] Norton v. S. Utah Water Alliance, 542 U.S. 55, 62 (2004)(interpreting 5 U.S.C. § 706(1)).

^[34] Coos County, 531 F.3d 792, 812 (9th Cir. 2008)

^[35] Id. at 813.

United States v. Approximately 64,695 Pounds of Shark Fins

Posted on November 14, 2009 by Environmental Law

Tai Loong Hong Marine Products, Ltd. (TLH) appealed a decision by the district court entering judgment of forfeiture for shark fins seized by the United States Coast Guard (Coast Guard) from a vessel chartered by TLH. The district court held that TLH’s boat was a fishing vessel as a matter of law under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)[1] and that the fins were subject to forfeiture because they were taken in violation of the Shark Finning Prohibition Act (SFPA). The Ninth Circuit reversed the district court, holding neither the SFPA nor applicable regulations provided fair notice to TLH that its chartered craft would be considered a fishing vessel under the Magnuson Act. The court remanded the case to the district court for further proceedings.

Hong Kong company TLH chartered the King Diamond II (KD II), a U.S.-registered vessel owned by an American company, to purchase shark fins from foreign fishing vessels at sea and transport the fins to Guatemala for resale. In 2002, Coast Guard officials boarded the KD II approximately 250 miles off the Guatemala coast and found more than thirty-two tons of shark fins but no carcasses on board. After the Coast Guard detained the KD II and escorted it to San Diego, the United States filed a civil complaint for forfeiture of the shark fins, alleging that the fins were taken or retained in violation of the SFPA and its implementing regulations.[2]

The SFPA, which amended the Magnuson Act, was intended to eliminate the practice of shark finning.[3] The relevant portion of the SFPA makes it unlawful to possess shark fins aboard a “fishing vessel” without the corresponding carcasses.[4] Section 1802(18)(B) of the Magnuson Act defines a fishing vessel as any vessel that is used for “aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.”[5]

The district court ruled that the KD II met the statutory definition of “fishing vessel” because it aided or assisted other vessels at sea in the performance of fishing-related activities.[6] Consequently, it granted the government’s motion for summary judgment and entered a judgment of forfeiture on the stipulated fair market value of the fins. TLH appealed, arguing that the KD II was not a “fishing vessel” within the meaning of the statute and that the application of the SFPA to the KD II violated due process.

The Ninth Circuit began its analysis by noting that due process requires an agency to provide “fair notice of what conduct is prohibited before a sanction can be imposed.”[7] The court explained that to provide sufficient notice, a statute or regulation must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.”[8] Looking at the plain language of the statute and regulations, the court held that a reasonable owner or operator of a vessel engaged in at-sea purchase and transport of shark fins would not have fair notice that its craft could be deemed a fishing vessel under section 1802(18)(B). It thus held that the district court’s application of the SFPA to the KD II as a fishing vessel violated due process. Accordingly, the Ninth Circuit reversed the decision and remanded for further proceedings.

In reaching its holding, the Ninth Circuit first examined the plain language of the statute and found nothing that would provide notice to the owner or operator of the KD II that its activities would render it a fishing vessel. The Ninth Circuit rejected the district court’s reasoning that purchasing shark fins at locations designated by the foreign vessels constitutes an act of aiding or assisting the foreign vessels. Utilizing the dictionary definition of “aiding” and “assisting,” the Ninth Circuit rejected the district court’s finding that the purchase, storage, and transport of shark fins aided and assisted the foreign fishing vessels at sea in the performance of fishing-related activities. The dictionary definitions of “aiding” and “assisting” generally connote performing an act for the benefit of another.[9] The court concluded that TLH was at all times acting for its own commercial benefit, not for the benefit of the foreign fishing vessels from which it purchased the shark fins. Consequently, the KD II could not have aided or assisted the foreign fishing vessels. Furthermore, because the statute did not list “purchasing” as one of the acts that constitutes aiding and assisting, the statutory provision prohibiting “aiding or assisting any activity relating to fishing” does not give fair notice that purchasing, storing, and transporting shark fins is prohibited.

The Ninth Circuit also rejected the district court’s reasoning that at-sea purchase of the fins constituted aiding and assisting because the purchase allowed the foreign vessels to continue fishing for longer than otherwise would have been possible. Focusing on the idea that a purchaser is doing no more than furthering its own business interests, the Ninth Circuit explained that the district court’s assumption that the seller would benefit from the location of particular sales was irrelevant.

Having found nothing in the plain language of the statute that would provide notice to TLH that the possession prohibition applied to its activities, the Ninth Circuit turned to the implementing regulations of the SFPA to determine if they provided notice. Pursuant to the SFPA, the National Marine Fisheries Services promulgated regulations making it unlawful, in relevant part, to possess shark fins without the corresponding carcasses while on board a U.S. fishing vessel[10] and to “land” shark fins without the corresponding carcasses.[11] The district court, in support of its conclusion that the regulations make clear the KD II was a fishing vessel, relied on the regulation prohibiting the landing of shark fins. That regulation explicitly provides that a cargo vessel that “lands” shark fins after an at-sea transfer is considered a fishing vessel.[12] The Ninth Circuit rejected this reasoning, noting that the applicable regulation, the one prohibiting possession of shark fins, includes no such provision.[13] Where an agency includes language in one section of the regulation and omits it in another, it is reasonable to presume that an agency acted intentionally in forgoing the language.[14] The court thus concluded that the regulation prohibiting possession does not define vessels that engage in at-sea transfer of shark fins as “fishing vessels.” Consequently, the court held that the regulations could not have provided the KD II with notice that its activities would render it a fishing vessel under section 1802(18)(B).

In conclusion, the Ninth Circuit held that the district court’s application of the possession prohibition to the KD II violated due process because a reasonable person would not have fair notice from the statute and regulations that the KD II‘s activities would render it a fishing vessel under the statute. The district court’s decision to grant a judgment of forfeiture was reversed and the case was remanded for further proceedings.

^[1] 16 U.S.C. §§ 1801-1883 (2006).

^[2] The prohibition on possession of shark fins aboard a fishing vessel under 16 U.S.C. § 1857(1)(P)(ii)and its implementing regulation at 50 C.F.R. § 600.1203(a)(2)is referred to as the “possession” prohibition.

^[3] 16 U.S.C. § 1857(1)(P) (2006) (codifying section 3 of the Shark Finning Prohibition Act, Pub.L. No. 106-557, 114 Stat. 2772 (2000)).

^[4] Id.

^[5] Id. § 1802(18)(B) (emphasis added).

^[6] United States v. Approximately 64,695 Pounds of Shark Fins, 353 F. Supp. 2d 1095, 1101 (S.D. Cal. 2005).

^[7] Stillwater Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 142 F.3d 1179, 1182 (9th Cir. 1998).

^[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

^[9] The Ninth Circuit noted that the American Heritage Dictionary of the English Language defines “to assist” as “[t]o give help or support to, especially as a subordinate or supplement; aid.” American Heritage Dictionary of the English Language 109 (4th ed. 2000).Similarly, it defines “to aid” as “[t]o help or furnish with help, support, or relief.” Id. at 36.

^[10] 50 C.F.R. § 600.1203(a)(2) (2007).

^[11] Id. § 600.1203(a)(3).

^[12] Id. § 600.1204(c).

^[13] See id. § 600.1204(b).

^[14] Cf. Bates v. United States, 522 U.S. 23, 29-30 (1997) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”).

Salmon Spawning & Recovery Alliance v. Guiterrez

Posted on November 14, 2009 by Environmental Law

Conservation groups Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively Recovery Alliance) filed suit against the National Marine Fisheries Service (NMFS), the Department of Commerce, the State Department, and the official heads of each agency, alleging that United States’s entry and participation in the Pacific Salmon Treaty (Treaty)[1] violated the Endangered Species Act (ESA)[2] and the Administrative Procedure Act (APA).[3] The United States District Court for the Western District of Washington dismissed Recovery Alliance’s complaint for lack of Article III standing. On appeal, the Ninth Circuit affirmed the district court’s conclusions that Recovery Alliance lacked standing to challenge the adequacy of NMFS’ biological opinion (1999 BiOp) authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit held that Recovery Alliance had standing to challenge the agencies’ failure to reinitiate consultation on the 1999 BiOp. The Ninth Circuit accordingly remanded Recovery Alliance’s remaining claim to the district court.

In 1999, the United States and Canada entered into the Treaty to manage chinook and coho salmon and steelhead trout populations (collectively salmon). The salmon originate in the Puget Sound, lower Columbia, and Snake Rivers, migrate northward across the international borders toward Alaskan and British Columbian waters, and then return to their rivers of origin to spawn and die. The Treaty, as implemented by the joint Pacific Salmon Commission, established annual harvest regimes for coastal fisheries based on abundance estimates, instead of the fixed harvest ceilings used in the first 1985 treaty, which did not change annually. The harvest regimes are subject to approval by the Secretary of State, in consultation with the Secretary of Commerce and Secretary of Interior.[4]

Because the Treaty affected twenty-six populations of salmon listed as threatened or endangered under the ESA, the United States conditioned the implementation of the Treaty on its compliance with the ESA’s section 7(a)(2) formal consultation requirement[5] and implementing regulations.[6] The State Department requested a biological opinion (BiOp) from NMFS to evaluate whether “Canadian take under the levels permitted by the Treaty” was likely to jeopardize the continued existence of any endangered or threatened species.[7] Because NMFS’ 1999 BiOp determined the Treaty would not jeopardize listed salmon, it did not have to determine “reasonable and prudent alternatives” (RPA) to avoid jeopardy.[8]

Recovery Alliance, concerned that the Treaty permitted Canadian fisheries to overharvest salmon populations protected by the ESA, sued the acting and consulting agencies and officials under the ESA and the APA. More specifically, Recovery Alliance alleged 1) the 1999 BiOp authorizing the United States’s entry into the Treaty violated sections 7 and 9 of the ESA and section 5 of the APA, 2) the agencies’ continued participation in the Treaty jeopardized listed salmon in violation of section 7(a)(2) of the ESA and section 5 of the APA, and 3) the agencies’ failure to reinitiate consultation after NFMS published new information in 2005 about salmon overharvesting violated section 7 of the ESA. The district court ruled that Recovery Alliance lacked the causation and redressibility elements for standing under the “case and controversy” requirements of Article III.[9]

Recovery Alliance appealed the district court’s dismissal and the Ninth Circuit reviewed the district court’s decision on standing de novo.[10] To establish Article III standing, a plaintiff must establish 1) an injury in fact that is concrete and particularized, and actual or imminent, 2) that the injury is fairly traceable to the challenged conduct, and 3) that the injury is likely to be redressed by a favorable court decision.[11] In addition to establishing Article III standing, the court noted that Recovery Alliance must establish statutory standing.

The Ninth Circuit first addressed Recovery Alliance’s allegation that the 1999 BiOp authorizing the United States’s entry into the Treaty violated the requirements of section 7 of the ESA and section 5 of the APA. The Ninth Circuit characterized this claim as procedural and stated that to establish a procedural injury, a plaintiff must show that the “procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.”[12] Recovery Alliance asserted that the 1999 BiOp’s foundational flaws[13] failed to ensure agency achievement of the ESA’s purpose of species preservation, thus harming Recovery Alliance’s interest in salmon preservation.

Although Recovery Alliance established a procedural injury, the Ninth Circuit ruled that it failed to establish standing because it lacked a redressable claim. First, the Ninth Circuit explained that a showing of procedural injury “lessens a plaintiff’s burden” of showing causation and redressability.[14] Thus, a plaintiff must only show they have a “procedural right that, if exercised, could protect their concrete interests.”[15] Despite this relaxed requirement, the Ninth Circuit ruled that Recovery Alliance could not demonstrate that a favorable court decision could protect their concrete interests. The court emphasized that the BiOp authorized the United States’s entry into the Treaty with Canada and set fishing levels that could only be revisited if agreed upon by both countries. Thus, even if Recovery Alliance proved a procedural violation of the ESA, the Ninth Circuit reasoned that it could not undo the United States’s decision to enter into the treaty nine years ago and lacked the power to order the Executive Branch to withdraw from the Treaty.[16] In essence, the Ninth Circuit explained that setting aside the BiOp, which the court could do, could not remedy the harm asserted by Recovery Alliance because the Treaty would remain in place. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s claim for lack of standing.

Next, the Ninth Circuit addressed Recovery Alliance’s claim that the agencies’ continued participation in the implementation of the treaty violated the substantive duty to avoid jeopardy to listed species under section 7(a)(2) of the ESA. Essentially, Recovery Alliance challenged the agencies’ decision to allow excessive Canadian harvesting under the terms of the Treaty. Although the court assumed Recovery Alliance alleged an adequate injury to its interest in salmon preservation, it ruled that Recovery Alliance lacked standing, because the overharvesting permitted under the Treaty was not fairly traceable to the United States’s failure to withdraw from the Treaty or failure to take additional conservation measures in Canada. The Ninth Circuit reasoned that if the United States withdrew from the Treaty, “harvesting of listed species would arguably increase,”[17] because any abundance-based limits would lapse. Additionally, even if the United States asked Canada to implement conservation measures, Canada could refuse.

The Ninth Circuit also ruled that Recovery Alliance also lacked standing for their related claim that the agencies’ failure to offset the effects of Canadian overharvesting by establishing conservation measures within United States’s jurisdiction, lacked standing. The court reasoned that “redressibility poses an upstream battle” since a court order that the agencies violated the ESA and APA was unlikely to redress the alleged injury, because it would result in uncertain discretionary action by the agencies,[18] including the possibility of the agencies taking no further agency action so as to avoid section 7′s no jeopardy requirement. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s second claim.

Finally, the Ninth Circuit addressed whether Recovery Alliance established Article III standing, statutory standing, and associational standing in claiming that the agencies’ failure to reinitiate consultation on the 1999 BiOp following publication of new information about listed salmon, violated the ESA and implementing regulations.[19] The court ruled that Recovery Alliance properly alleged a procedural injury, which relaxed the standard for causation and redressibility. With a relaxed burden, the Ninth Circuit held that Recovery Alliance’s claim was adequately connected to the agencies’ failure to reinitiate consultation. Furthermore, the court reasoned that requiring the agencies to reinitiate consultation would provide Recovery Alliance with a remedy that did not compel the revocation or renegotiation of the Treaty. Thus, the court held Recovery Alliance established standing under Article III. The court also ruled that Recovery Alliance’s claims had statutory standing to challenge the State Department’s failure to reinitiate consultation under the ESA’s citizen suit provision[20] as well as under the APA.[21] Additionally, the court held Recovery Alliance had established associational standing because each of the groups’ members had standing to sue, the groups sought to protect interests germane to their conservation purposes, and neither the claims asserted nor the relief requested required participation of the individual members.

In conclusion, the Ninth Circuit affirmed the district court’s conclusion that Recovery Alliance lacked standing to challenge the adequacy of NMFS biological opinion authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit reversed the district court’s ruling that Recovery Alliance lacked standing to challenge the agencies’ failure to reinitiate consultation following the publication of new information about listed salmon. The Ninth Circuit held that Recovery Alliance had Article III standing, statutory standing, and associational standing to challenge the agencies’ failure to reinitiate consultation. The Ninth Circuit remanded Recovery Alliance’s remaining claim to the district court.

^[1] The United States and Canada entered into the first Pacific Salmon Treaty in 1985, which expired in 1992. See Pacific Salmon Treaty Act, U.S.-Can., Jan. 28, 1985, 99 Stat. 7 (Mar. 17, 1985). In 1999, the United States and Canada entered into another agreement using the framework of the 1985 treaty. See Pacific Salmon Treaty Act of 1985, 16 U.S.C. §§ 3631-3645 (2006).

^[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[4] 16 U.S.C. § 3633(a)(2) (2006).

^[5] 16 U.S.C. § 1536(a)(2) (2006).

^[6] 50 C.F.R. § 402.14(c), 402.14(l)(1) (2008).

^[7] Salmon Spawning & Recovery Alliance v. Gutierrez (Recovery Alliance), 545 F.3d 1220, 1224 (9th Cir. 2008).

^[8] 16 U.S.C. § 1536(b)(3)(A) (2006); 50 C.F.R. § 402.14(h)(3) (2008). NMFS also issued an “incidental take statement” that exempted the State Department from the taking prohibition of the ESA. See 16 U.S.C. § 1536(b)(4) (2006).

^[9] U.S. Const. art. III, § 2.

^[10] Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F.3d 961, 969 (9th Cir. 2003).

^[11] Recovery Alliance, 545 F.3d at 1225(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

^[12] Citizens for Better Forestry, 341 F.3d at 969.

^[13] Recovery Alliance, 545 F.3d at 1225.For example, Recovery Alliance claimed that the BiOp “improperly compared only the Treaty’s effect on harvest rates to harvest rates in the absence of the Treaty, instead of aggregating the effects of take under the Treaty, other harvest impacts, and non-harvest impacts.” Id. at 1225.

^[14] Id. at 1226(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).

^[15] Id.(citing Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005), overruled on other grounds, Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007)).

^[16] Id.(citing Earth Island Inst. v. Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993)).

^[17] Id. at 1228.

^[18] Id.

^[19] 50 C.F.R. § 402.16 (2008).Consultation under section 7 must be reinitiated where 1) discretionary federal involvement or control has been retained or authorized, and 2) the amount or extent of taking specified is exceeded, new information reveals effects that may affect listed species or critical habitat in a manner not considered, the action is subsequently modified so as to cause an effect to the listed species or critical habitat not previously considered, or a new species is listed or critical habitat designated. Id.

^[20] Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(1)(A) (2006).

^[21] See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001) (explaining that standing to sue under APA existed when the complaint alleged an agency’s failure to comply with section 7 of the ESA as arbitrary, capricious, and not in accordance with procedures).

Sierra Forest Legacy v. Rey

Posted on November 14, 2009 by Environmental Law

Environmental advocacy groups (collectively Sierra Forest) appealed the district court’s denial of a preliminary injunction against the United States Forest Service (USFS) in a suit challenging USFS’s decision to raise funds for fire prevention projects by awarding logging contracts for three sites in the Sierra Nevada Forest.[1] Reviewing the district court’s decision for abuse of discretion, the Ninth Circuit held that 1) Sierra Forest had a substantial likelihood of success on the merits of its claim under the National Environmental Policy Act (NEPA),[2] 2) Sierra Forest would suffer irreparable harm under USFS’s proposed logging plan, 3) the State of California’s interest in preserving the environment outweighed the USFS’s choice of funding for fire reduction efforts, and 4) advancement of the public interest favored issuance of a preliminary injunction. Accordingly, the Ninth Circuit reversed the United States District Court for the Eastern District of California and remanded the case with instructions to immediately grant a preliminary injunction against the proposed logging projects.

In response to a dramatic increase in western wildfires, USFS issued a supplemental environmental impact statement (SEIS) in 2004, which altered the 2001 final environmental impact statement (FEIS) that implemented an amendment to the Sierra Nevada forest plan. In the SEIS, USFS proposed to issue timber sale contracts to raise money for fire prevention work. Pursuant to the SEIS, USFS subsequently approved logging projects for three specific sites.

In response, Sierra Forest filed suit against USFS, claiming violations under the National Forest Management Act of 1976 (NFMA)[3] and NEPA[4] and requesting a preliminary injunction to stop the logging projects. The Attorney General of California filed an amicus brief in support of Sierra Forest and California objected to the proposed projects and sought to protect the forest’s habitat and wildlife. The district court denied the preliminary injunction.[5]

The Ninth Circuit reviews a denial of a motion for preliminary injunction for abuse of discretion, considering only whether the district court based its ruling on an erroneous legal standard or on clearly erroneous findings of fact.[6] The Ninth Circuit considers four criteria in determining whether to issue a preliminary injunction: 1) likelihood of success on the merits, 2) the possibility of irreparable harm, 3) balancing of hardships, and 4) the advancement of the public interest.[7]

The Ninth Circuit first analyzed Sierra Forests’s probability of success on the merits of its NEPA claim. The court framed the issue as a “narrow and limited issue: Does the 2004 SEIS prepared by USFS regarding its plans to sell off the forest trees comply with the requirements of NEPA?”[8] Sierra Forest argued the Forest Service’s plan to sell off forest trees under the SEIS did not comply with NEPA’s requirement to “rigorously explore and objectively evaluate all reasonable alternatives.”[9]

Specifically, the Ninth Circuit considered whether USFS could rely on its previous discussion of alternatives under the 2001 FEIS to satisfy NEPA’s discussion of alternative requirement under the 2004 SEIS. Where changed circumstances affect the factors relevant to the development and evaluation of reasonable alternatives, an agency must address those changed circumstances.[10] In this case, the Ninth Circuit identified several changed circumstances that USFS failed to account for in its 2004 SEIS, including revision of USFS’s modeling techniques and USFS’s development of a new substantive objective of selling the trees to raise funds for use in reducing and controlling forest fires. The Ninth Circuit characterized this technique as a “two for one” arrangement under which USFS planned to “[s]ell trees to loggers” and “[u]se the money to clear areas of what is potential fuel for fire.”[11] While acknowledging that two for one deals “have an attractive ring,” the Ninth Circuit determined that alternatives from the 2001 FEIS for fuel reduction needed to be considered in “light of the new urgency of fire prevention.”[12] USFS failed to consider alternative methods for funding fire reduction objectives, such as requesting appropriations from Congress, shifting agency funding priorities, and revising its fuel treatment program. Accordingly, the Ninth Circuit held the district court abused its discretion by erroneously concluding that USFS complied with NEPA’s requirement to rigorously explore and evaluate all reasonable alternatives to the proposed forest plan amendments.

Having established the probability of success on the merits, the Ninth Circuit next considered whether plaintiffs would suffer the possibility of irreparable harm as a result of the Forest Service’s proposed logging projects. The court concluded that the spotted owl, classified as a sensitive species by USFS, would suffer a reduction in its established forest habitat. By demonstrating that habitat reduction could irreparably damage the spotted owl, Sierra Forest met the second requirement for a preliminary injunction.

Finally, the Ninth Circuit considered whether the balance of equities favored Sierra Forest and whether the public interest would be advanced by the issuance of a preliminary injunction. Specifically, the court evaluated the USFS’s interest in its choice of funding methods-not the agency’s goal of fire prevention itself-against California’s interest in forest preservation. Given the “special solitude” afforded California in its efforts to protect in its natural resources,[13] as well as USFS’s failure to consider alternative sources of funding, the Ninth Circuit determined the balance of hardships favored granting a preliminary injunction. Additionally, the public interest favored issuance of a preliminary injunction because of the importance of enforcing laws designed to preserve the environment.[14]

Accordingly, the Ninth Circuit reversed the district court’s denial and remanded the case with instructions to immediately grant the preliminary injunction on the logging contracts to the extent that the proposed projects were inconsistent with the 2001 FEIS.

In addition to authoring the majority opinion, Judge Noonan also filed a concurring opinion. Judge Noonan first described the inherent bias in the USFS’s decision-making process, which was similar to unconstitutional statutory schemes where “a judge support[s] himself by his own judgments.”[15] Although necessity may allow a departure from traditional impartiality requirements, Judge Noonan concluded that USFS did not establish that the proceeds from timber contracts were necessary to fund fire prevention efforts.

Next, Judge Noonan rejected USFS’s “bold” claim at oral argument that approval of timber sales at the proposed sites did not implicate due process requirements or impartiality because no person’s life, liberty, or property was at stake.[16] In response, Judge Noonan explained that Sierra Forest’s standing to bring suit demonstrated that rights were at stake, and emphasized that aesthetic and environmental well-being are elements of liberty enjoyed by citizens.[17] Judge Noonan further reasoned that although the forest plan itself does not create legal rights,[18] such rights “enter the picture” when USFS targets site-specific projects.[19]

Finally, returning to the potential for bias in USFS’s decision-making process, Judge Noonan criticized the lack of judicial review at the stage where USFS develops a forest plan. Judge Noonan asserted that the USFS’s process should not be insulated from judicial review for bias because the financial incentive of the Forest Service in implementing the forest plan is “as operative, as tangible, and as troublesome as it would be if instead of an impartial agency decision the agency was the paid accomplice of the loggers.”[20] Consequently, Judge Noonan would have set aside the implementation process and the resulting decisions as impermissibly tainted by procedural bias.[21]

^[1] The environmental advocacy groups were Sierra Nevada Forest Protection Campaign, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, and the Wilderness Society.

^[2] 42 U.S.C. §§ 4321-4370e (2006).

^[3] 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006)(amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

^[4] 42 U.S.C. §§ 4321-4370e (2006).

^[5] Sierra Nevada Forest Prot. Campaign v. Rey, No. 2:05-cv-0205-MCE-GGH, 2007 WL 3034931 (E.D. Cal. Oct. 16, 2007).

^[6] See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003).

^[7] See id. at 1297-98.

^[8] Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231 (9th Cir. 2008). The Ninth Circuit noted there was a larger conflict between the parties’ interests: USFS “acknowledge[d] that its reason for selling the forest trees to commercial loggers is to raise funds to carry on its fire prevention duties,” while the environmental advocacy groups and the State of California sought to “preserve the larger trees and so to preserve the habitat that supports various species.” Id.

^[9] 40 C.F.R. § 1502.14(a) (2007).

^[10] Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005).

^[11] Sierra Forest Legacy, 526 F.3d at 1233.

^[12] Id.

^[13] See Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497, 520 (2007).

^[14] See Amoco Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).

^[15] Sierra Forest Legacy, 526 F.3d at 1235 (Noonan, J., concurring).

^[16] Id.

^[17] Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

^[18] See 36 C.F.R. § 219.3(b) (2007).

^[19] Sierra Forest Legacy, 526 F.3d at 1236 (Noonan, J., concurring).

^[20] Id.

^[21] Id.

Our Children’s Earth Foundation v. U.S. Environmental Protection Agency

Posted on October 13, 2009 by Environmental Law

Our Children’s Earth Foundation and Ecological Rights Foundation (collectively OCE) appealed a decision of the district court granting judgment for the defendant, the United States Environmental Protection Agency (EPA). The United States District Court for the Northern District of California had held that decisions by EPA to revise effluent guidelines pursuant to the Clean Water Act (CWA)[1] and incorporate technology-based criteria in the agency’s periodic review of those guidelines are within the agency’s discretion. The Ninth Circuit affirmed, holding the district court properly dismissed Plaintiffs’ claims regarding the manner and timing of review of the guidelines, the scheduling of plan publication, and identification of new polluting sources, and the district court did not abuse its discretion in refusing to transfer the claims to the appellate court.

OCE filed a citizen suit under section 505(a)(2) of the CWA alleging EPA had failed to comply with its statutorily mandated duties to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE alleged that EPA abandoned technology-based review in favor of hazard-based review, failed to publish timely plans for future reviews, and neglected to identify new polluting sources. Section 505(a)(2) allows a citizen suit to be brought “where there is alleged a failure of the Administrator to perform any act or duty . . . which is not discretionary with the Administrator.”[2] The other jurisdictional provision of the CWA, section 509(b)(1), permits challenges to the exercise of the Administrator’s discretion in promulgating standards and issuing determinations; claims brought pursuant to this second provision must be filed directly in the circuit court of appeals.[3] The district court granted judgment in favor of EPA, holding that the challenged acts or omissions were discretionary and thus were improperly before the court under the section 505(a)(2) citizen suit provision. On appeal, the threshold question was whether OCE’s claims relate to a mandatory obligation (for which a section 505(a)(2) suit is appropriate) or discretionary agency action (for which a section 509(b)(1) suit is appropriate).

The court began by noting the policy goals behind the CWA and the long-standing commitment to use the best available technology to determine effluent guidelines.[4] The CWA imposes nondiscretionary duties on EPA to review those guidelines and, where appropriate, to revise them according to statutory criteria. The requirement to use a technology-based approach to promulgate and revise regulations runs throughout the text of section 304(b)[5] and section 301(d).[6] Importantly, use of the word “shall” in connection with a stated obligation in statutory text usually connotes a mandatory command.[7] Discretion is indicated where no provision specifies one course of action over another.[8] The plain language of both provisions, which rely heavily on the use of the word “shall” throughout, reflects a mandate to use a technology-based approach as a nondiscretionary matter in the promulgation of regulations. Moreover, the statutory language unambiguously indicates that revision decisions, although discretionary as conveyed by the “if appropriate” language, are constrained by the statutory mandate as to what such regulations “shall” accomplish. However, the regulatory scheme falls short of unequivocally mandating a readily ascertainable duty to utilize a technology-based approach in reviewing effluent guidelines.[9] The Ninth Circuit thus held that EPA’s

Oregon Natural Desert Association v. U.S. Forest Service

Posted on October 13, 2009 by Environmental Law

Environmental organizations (collectively ONDA)[1] brought suit against the United States Forest Service (USFS), alleging USFS violated the Clean Water Act[2] (CWA) by issuing federal grazing permits for areas of the Malheur National Forest without requiring prior certification from the State of Oregon. ONDA argued that pollutants from livestock grazing, a nonpoint source, should be construed as “discharge” subject to the state certification requirements of section 401 of the CWA.[3] Relying on principles of stare decisis, the Ninth Circuit affirmed the district court’s judgment on the pleadings, holding the term “discharge” was limited to effluents from point sources and thus did not require certification from the state.

USFS issued a federal permit to Colvin Cattle Company (Colvin) in February 2006, authorizing livestock grazing in areas of the Malheur National Forest. USFS did not require Colvin to obtain certification from the State of Oregon prior to issuing the federal permit. ONDA brought suit against USFS, alleging violations of the CWA, which requires federal permit applicants whose activities “may result in any discharge into the navigable waters” to obtain certification from the state in which the discharge originates.[4] ONDA argued that the USFS-permitted grazing activities caused short- and long-term damage to habitat and resources in the Middle Fork John Day River basin.

The parties disputed whether the term “discharge” is limited to effluents from point sources or whether it “should be read to include the discharge of pollutants from nonpoint sources, such as livestock grazing.”[5] The Ninth Circuit previously had addressed the issue in Oregon Natural Desert Ass’n v. Dombeck[6] and held the certification requirement under section 401 of the CWA applied only to point source releases.[7] In that case, the court cited Ninth Circuit precedent and explained that under the CWA, Congress did not directly prohibit discharges from nonpoint sources, such as runoff from farmlands.[8] Further, a cow is “inherently mobile” and therefore not a point source under the CWA.[9]

Given the prior history, USFS responded to ONDA’s complaint in this case with a motion for judgment on the pleadings. The magistrate issued findings and recommendations that concluded that collateral estoppel barred ONDA’s claim, because ONDA sought to litigate a claim substantially identical to the claim in Dombeck. The district court adopted the magistrate’s findings and recommendations and granted USFS’s motion.

Reviewing the district court’s grant of judgment on the pleadings de novo,[10] the Ninth Circuit analyzed ONDA’s claim to determine whether stare decisis principles barred the action.[11] Prior circuit authority may be overruled when an intervening United States Supreme Court decision undermines an existing precedent and both decisions are “closely on point”[12] but not necessarily identical.[13] Where the reasoning or theory underlying circuit precedent is “clearly irreconcilable” with that of higher authority, a panel of the Ninth Circuit may recognize that the higher authority has effectively overruled the prior opinion.[14] On appeal, ONDA argued the 2006 United States Supreme Court decision of S.D. Warren Co. v. Maine Board of Environmental Protection[15] was irreconcilable with the Ninth Circuit’s decision in Dombeck,[16] and thus the latter should be overruled.

In S.D. Warren, the Supreme Court considered whether water flowing through dam turbines-undoubtedly point sources-constituted a discharge under the CWA, thereby requiring a company to obtain water quality certifications from the state. The Ninth Circuit distinguished the decision in S.D. Warren by noting the parties in that case did not dispute the contention that “[section] 401 does not cover nonpoint source . . . pollution.”[17] The narrow issue for resolution in S.D. Warren was whether a discharge from a point source could occur absent the addition of a pollutant, as from a dam turbine; the Supreme Court did not address the issue of nonpoint source pollution. ONDA argued that S.D. Warren controlled the instant case and urged the court to expand the meaning of “discharge” to include effluents from nonpoint sources. The Ninth Circuit declined, reading the S.D. Warren decision as limited to holding that a discharge need not involve pollutants and could encompass the flow of existing water through dam turbines.

The Ninth Circuit further determined the reasoning in S.D. Warren was easily reconcilable with the reasoning in Dombeck. ONDA argued that because the Supreme Court read “discharge” to include nonpollutants in S.D. Warren, the Ninth Circuit should similarly read “discharge” to include nonpoint sources. The Ninth Circuit rejected this argument, noting that while the former interpretation is supported by the legislative history of the CWA, the latter is not. Although Congress could have chosen to target such nonpoint discharges as generalized runoff, it restricted the federal permit program to point sources. Despite the recognized harmful effects of nonpoint source pollutants, the CWA does not exercise jurisdiction over them.

The Ninth Circuit concluded that the Supreme Court’s decision in S.D. Warren was not irreconcilable with Ninth Circuit’s analysis in Dombeck. Although the court recognized that “stare decisis does not control the outcome of every case,” the instant case raised no new facts or novel changes in the legal landscape to justify a departure from circuit precedent.[18] Accordingly, the court held the term “discharge” was limited to effluents from point sources and affirmed the district court’s judgment on the pleadings in favor of USFS.

^[1] Plaintiffs-Appellants were Oregon Natural Desert Association, Western Watersheds Project, Northwest Environmental Defense Center, Oregon Wild, Center for Biological Diversity, and Friends of Oregon’s Living Waters.

^[2] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2006).

^[3] Id. § 1341(a)(1).

^[4] Id.

^[5] Or. Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 782 (9th Cir. 2008).

^[6] 172 F.3d 1092 (9th Cir. 1998).

^[7] Id. at 1094.

^[8] Id.

Oregon Natural Desert Association v. Bureau of Land Management

Posted on October 13, 2009 by Environmental Law

Oregon Natural Desert Association and two other environmental groups[1] (collectively ONDA) appealed a grant of summary judgment by the District Court for the District of Oregon in favor of the defendant, the Bureau of Land Management (BLM) regarding the BLM’s Southeast Oregon Resource Management Plan (Plan) and corresponding environmental impact statement (EIS) for a large portion of southeastern Oregon. The Ninth Circuit reversed and remanded, holding that BLM violated the National Environmental Policy Act (NEPA)[2] by failing to address concerns about wilderness characteristics and failing to consider alternatives that would have closed more acreage to off-road vehicles (ORVs). The Ninth Circuit set aside BLM’s record of decision (ROD) approving the EIS and the corresponding land use plan and remanded the case with instructions to BLM to remedy the NEPA deficiencies.

BLM began developing a comprehensive management plan for approximately 4.5 million acres of land in southeastern Oregon in 1995. The area is characterized by a semi-arid climate and rugged, scenic landscape that supports sagebrush plains and juniper woodlands. Economic indicators place the region’s economy, largely dependent on farming and ranching, far below statewide averages. Because federally owned land comprises a large portion of the area, BLM management of its share has a significant effect on the region’s natural resources and economy.

BLM land management authority is defined by the Federal Land Policy and Management Act (FLPMA).[3] FLPMA requires BLM to develop, maintain, and revise land-use plans using a systematic interdisciplinary management approach that gives priority to the designation and protection of areas of critical environmental concern and weighs short- and long-term benefits to the public.[4] An extensive public comment process is integral to the formulation of BLM plans.[5] Any party that has participated in the planning process and may be adversely affected may protest the approval of a BLM land-use plan.[6]

FLPMA interacts with the Wilderness Act[7] to provide BLM with broad authority to manage areas with wilderness characteristics on public lands. Specifically, FLPMA provides BLM with a process to protect areas with wilderness characteristics from impairment by designating them as Wilderness Study Areas (WSA) and recommending them for congressional protection.[8] FLPMA also authorizes BLM to account for wilderness characteristics as part of its inventory of public lands, their resources, and other values.[9]

The approval of a resource management plan by a ROD implicates NEPA[10] and requires the preparation of an EIS.[11] In contrast to the substantive rights and obligations created by land management statutes such as FLPMA, NEPA puts in place procedures to ensure that decision makers consider information about environmental impacts and disseminate such findings for public participation. An EIS guides decision making by requiring the agency to consider all significant aspects of environmental impacts[12] and list reasonable alternatives.[13]

In the case at bar, after three years of planning, BLM released a draft management plan (Plan) and corresponding draft EIS as one document created to guide management of southeastern Oregon for the next twenty years. ONDA’s comments on the draft EIS criticized BLM for failing to inventory lands that had developed wilderness characteristics since BLM’s prior survey of those values in 1980.[14] ONDA also contended that BLM did not consider a reasonable range of alternatives, arguing that the agency failed to account for the cumulative impacts of grazing and the excessive quantity of land left open to ORV use.

After reviewing comments on the draft EIS, BLM released its final version of the Plan and EIS in 2001. In response to ONDA’s comments, BLM noted that it had already taken a wilderness inventory pursuant to 43 U.S.C. § 1782(b)[15] and expressly disclaimed an obligation to analyze the effects of its Plan on wilderness values or consider management options for areas with those characteristics.[16] BLM considered conferring additional protections from development and disruptive uses to several hundred thousand acres of land in areas of critical environmental concern,[17] but such designations were limited and did not imply the presence of wilderness characteristics, much less protect them.

BLM selected the Plan from among seven draft alternatives. With regard to ORV use, the alternatives varied almost entirely by the amount of land allocated between open and limited-use categories. [18] Most notably, BLM never considered closing a significant amount of land to ORVs, nor did it consider an option geared toward protecting wilderness values from ORV use. The most protective limited-use category restricted ORVs to existing routes in WSAs and other sensitive areas and imposed seasonal closures to protect wildlife, but these limitations would still have allowed ORVs to travel up to 150 feet off an existing road in certain circumstances.[19] Every alternative exposed more land to some type of ORV use than was previously permitted. For example, the Plan’s selected alternative opened approximately 20,000 acres of previously closed land to some ORV use.[20] With regard to grazing, only one alternative deemed valid by BLM contemplated substantial restrictions, and BLM did not consider limiting grazing in areas with wilderness characteristics outside of WSAs.

ONDA filed a protest with BLM in December 2001, sounding the same concerns it raised in its comments to the draft EIS. ONDA alleged that BLM’s failure to provide information about and analyze wilderness values “violated NEPA’s requirement that the [BLM] engage in fully-informed decisionmaking.”[21] ONDA also challenged the limited alternatives for grazing management, emphasizing that BLM did not consider cumulative impacts. Finally, ONDA raised concerns that none of the Plan’s alternatives closed more than 0.8% of the planning area to ORV use. BLM denied the protest in September 2002, explaining that its wilderness review duty under the Wilderness Act was a “one-time responsibility” that was fulfilled by its 1991 report.[22] With regard to grazing, BLM responded that the alternatives were adequate because each had different effects over the short- and long-term. With regard to ORV use, BLM stated that its alternatives were adequate because the “limited” designation provided comparable protection to the “closed” designation. BLM adopted the Plan in an April 2003 ROD.

In response, ONDA filed suit against BLM in July 2003. In the meantime, ONDA undertook a survey of the Plan area to document changes that had occurred since 1980. ONDA submitted the results to BLM in February 2004 and introduced it as evidence in the pending suit. The district court expanded its review beyond the April 2003 ROD by admitting the survey because of precedent permitting new evidence “where the plaintiff alleges that an EIS has . . . swept stubborn problems or serious criticism under the rug.”[23] The survey demonstrated how the planning area, especially portions with unmaintained roads, had changed over time, with some reductions in human impacts. Despite the survey’s conclusion that the planning area had changed significantly and the existence of specific data showing more than 1.3 million acres of land outside of WSAs that display wilderness characteristics,[24] BLM did not modify the Plan or take new action.[25]

In its suit, ONDA alleged violations of NEPA, FLPMA, and the Taylor Grazing Act.[26] Both parties moved for summary judgment, and the district court, adopting the magistrate judge’s findings and recommendations, awarded summary judgment to BLM. ONDA timely appealed, and the Ninth Circuit reviewed the district court’s ruling de novo.[27] The Ninth Circuit reviewed BLM’s Plan and EIS under the Administrative Procedure Act (APA)[28] “arbitrary and capricious” standard. Although ONDA also appealed the district court’s rulings on its FLPMA and Taylor Grazing Act claims, the Ninth Circuit limited its opinion to ONDA’s NEPA claims.

The Ninth Circuit began its analysis of whether BLM violated NEPA by failing to inventory and discuss wilderness characteristics in the EIS. NEPA applies broadly to a variety of federal actions that impact the environment and does not contain requirements about substantive elements such as wilderness characteristics. These requirements are derived from the substantive statute compelling the proposed action. In this case, approval of the resource management plan constitutes a federal action and is compelled by FLPMA. ONDA argued that BLM, by declining to analyze wilderness characteristics on non-WSA lands, failed to adequately discuss the Plan’s impacts and alternatives despite ONDA’s comments. BLM responded that wilderness characteristics are only relevant to a one-time duty to survey wilderness areas under 43 U.S.C. § 1782. BLM’s argument was consistent with its position in Utah v. Norton,[29] where it agreed to, among other things, cease establishing, managing, or treating public lands as WSAs or as wilderness without congressional authorization.[30] Although the Utah settlement’s validity depended upon BLM’s compliance with FLPMA and NEPA, BLM and ONDA shared the position that the court need not directly consider the settlement’s legality.

After considering these arguments, the Ninth Circuit held that BLM’s response to ONDA’s concerns failed to satisfy NEPA requirements. The court cited 43 U.S.C. §§ 1712 and 1732 for BLM’s authority, independent of the one-time duty to survey lands with wilderness characteristics under 43 U.S.C. § 1782, to manage resources such as wilderness values. In essence, the court explained “wilderness characteristics retain vitality as a resource category covered by the BLM’s multiple-use land use planning mandate” even where section 1782 review has been completed.[31] The court explained this conclusion by examining 1) the statutory and regulatory structure binding BLM, 2) BLM’s guidance documents and public statements, and 3) case law.

The Ninth Circuit’s contextual interpretation of FLPMA, the Wilderness Act, and corresponding regulations supported the conclusion that BLM is required to address wilderness values in a detailed NEPA analysis. For example, FLPMA and corresponding regulations establish “wilderness characteristics” by referencing the Wilderness Act, and the definition of “wilderness” is the same in both statutes. The court cited BLM’s land-use planning handbook and the BLM’s administrative adjudicative body for recognizing that the characterizations of “wilderness” in FLPMA are identical to those in the Wilderness Act. Based on these cross-referencing definitions, the court concluded the wilderness characteristics concept originates from the statutory framework.

The Ninth Circuit explained that FLPMA’s Wilderness Study provision, which directs BLM to conduct an initial wilderness review to make recommendations for wilderness preservation, does not limit wilderness inventories to the recommendation process.[32] Instead, the Wilderness Study provision references 43 U.S.C. § 1711(a), which provides for a continuous inventory process to reflect new resources and other values.[33] Read together, section 1711(a) and section 1782(a) presume that BLM’s inventory procedure will identify areas with wilderness characteristics, including “new and emerging” areas or those arising from a “change in conditions.”[34] It also follows that wilderness characteristics are equivalent to “resource and other values” recognized under section 1711(a). Thus, the Ninth Circuit reasoned that BLM must manage wilderness characteristics as one aspect of its broad authority under its multiple-use management and planning mandate.

After recognizing BLM’s duty under FLPMA to consider wilderness characteristics, the court outlined several management methods that BLM could employ to fulfill its responsibilities of managing lands for wilderness values as part of multiple-use management. These suggestions included 1) enacting limitations on extractive uses, 2) reducing levels of potentially destructive grazing or ORV uses, 3) designating lands as areas of critical environmental concern or research natural areas, and 4) implementing a temporary nonimpairment policy. The court recognized that as long as BLM gave adequate consideration to wilderness characteristics during the planning process, it could implement a management plan that did not aspire to long-term wilderness preservation.

BLM’s public guidance documents supported the Ninth Circuit’s understanding that FLPMA instructs BLM to manage wilderness values of lands and corresponding duties to discuss such resources in NEPA documentation. The BLM’s 2005 Land Use Planning Handbook (2005 Handbook) acknowledged a continuing authority to manage lands with wilderness characteristics in land-use plans.[35] The 2005 Handbook also
recognized a duty to include analysis of wilderness characteristics, as appropriate, in EIS documentation.[36]

The Ninth Circuit also cited case law in support of its conclusion that BLM should have considered wilderness characteristics, particularly the roadless character of such lands, in its NEPA analysis. The court premised that roadlessness and wilderness were nearly inseparable considerations, because roadlessness is essential to fulfilling the “natural conditions” component of “wilderness” as defined in the Wilderness Act.[37] Then, the court compared circuit cases discussing roadlessness. In Smith v. United States Forest Service,[38] the Ninth Circuit rejected the Forest Service’s argument, analogous to that made by BLM, that it lacked a duty to discuss roadlessness in its NEPA documents, and held that roadlessness has an environmental significance that must be analyzed in NEPA documents.[39] In 2007, the Ninth Circuit applied Smith’s holding to noninventoried areas greater than 5000 acres and inventoried areas smaller than 5000 acres.[40] The court reasoned that if roadlessness, a significant feature of wilderness, merited NEPA consideration on Forest Service land, wilderness characteristics on BLM land similarly warranted NEPA documentation.

BLM advanced three counter-arguments that failed to persuade the Ninth Circuit. First, BLM argued that the United States Supreme Court’s holding in Norton v. Southern Utah Wilderness Alliance (SUWA)[41] limiting suits under the APA barred review of BLM’s failure to consider wilderness characteristics. Second, BLM argued that a ruling for ONDA about wilderness characteristics would violate the Supreme Court’s holding in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (Vermont Yankee).[42] Third, BLM argued that its analysis of other resources incidentally benefited wilderness values, and that the Ninth Circuit should defer to its NEPA methodology.

The Ninth Circuit disregarded BLM’s argument that SUWA applied to ONDA’s challenge because the case arose from a different provision of the APA. SUWA held that under section 706(1) of the APA a plaintiff must assert that an agency failed to take a discrete, required action.[43] BLM argued that a duty to inventory wilderness characteristics was not discrete. However, ONDA’s claim arose under section 706(2)(A), challenging BLM’s actions as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The court referenced more than a dozen cases for the proposition that the process of finalizing an EIS as a ROD constituted a final agency action, subject to review under section 706(2)(A). Thus, the court reviewed “the validity of the final action that was taken, not-as in SUWA-demanding that the agency take some action that it has not taken.”[44] The court explained that a contrary holding would make it difficult for a plaintiff to challenge an agency’s analytic errors under NEPA, because there is often no discrete duty required by statute to consider a specific issue. Under arbitrary and capricious review, an agency must consider nondiscrete issues of environmental significance before committing to a major federal action.

The Ninth Circuit rejected BLM’s argument that Vermont Yankee applied to ONDA’s challenge. In Vermont Yankee, the Supreme Court held that courts cannot use NEPA to substantially revise an agency’s procedural obligations under the APA or impose the court’s notion of which procedures are superior.[45] The Ninth Circuit reasoned that its holding required only direct compliance with NEPA’s EIS requirement and did not create any extra procedural requirements. In rejecting the relevance of Vermont Yankee, the Ninth Circuit emphasized that BLM, on remand, could decide how to fulfill its NEPA obligations regarding consideration of wilderness characteristics.

The Ninth Circuit also rejected BLM’s argument that its NEPA analysis of other resources incidentally contemplated the Plan’s effects on wilderness characteristics. The court viewed this argument as an unacceptable “post hoc rationalization”[46] because BLM did not articulate this position in the EIS. The Ninth Circuit also criticized the premise of BLM’s argument, which depicted wilderness characteristics as a “nebulous term.”[47] The court warned that developing a “proxy methodology” may fail to provide adequate disclosure of wilderness values present on BLM land.[48] Finally, because BLM lacked a method of analyzing or managing wilderness values, the court reasoned that it owed no deference to the BLM methodology, stating “[w]e cannot defer to a void.”[49]

Basing its conclusions on the statutes, regulations, guidance documents, and case law, the Ninth Circuit ruled against BLM on the wilderness values issue. The court held that 1) BLM had continuing authority to manage wilderness characteristics under FLPMA, wholly distinct from the agency’s duty to survey the land for wilderness preservation recommendations, 2) BLM violated NEPA by failing to properly respond to ONDA’s comments and provide a “full and fair discussion” about wilderness values in the EIS, and 3) BLM violated NEPA by failing to consider cumulative impacts on the planning area, because it did not consider impacts on lands with wilderness characteristics.

Next, the Ninth Circuit addressed ONDA’s other NEPA arguments pertaining to BLM’s alternatives analyses for grazing and ORV management. Citing Westlands Water District v. Department of Interior,[50] the court reasoned that “[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.”[51] With regard to both issues, the Ninth Circuit reasoned that BLM’s analysis of wilderness values on remand could lead to more adequate alternatives, but the court specifically held that BLM should consider an alternative that closed significant portions of land.

The Ninth Circuit did not decide whether BLM’s grazing alternatives were deficient. ONDA argued that BLM’s consideration of only one option that reduced grazing area and intensity amounted to a failure to adequately explore the balance between development and wilderness use.[52] The court reasoned that BLM, in its consideration of lands with wilderness values, would have the opportunity to “address the bias towards grazing” and produce more adequate alternatives.[53]

The Ninth Circuit ruled that BLM’s ORV use alternatives failed to provide the agency or public with a proper consideration of options. First, wilderness characteristics did not factor into BLM’s analysis of its ORV designations. Second, the court observed that no ORV alternative proposed closing more than a fraction of the planning area to ORVs and each alternative reduced the amount of areas that were previously closed to such use. The court disagreed with BLM’s argument that a wide range of open and limited ORV designations paired with emergency closure provisions was adequate, bluntly stating that limited use is “not identical” to no use.[54] The court specifically criticized the limitation to existing routes designation that permitted ORV use up to 150 feet off trails. Finally, the Ninth Circuit concluded that BLM must consider closing significant portions of land, especially those with wilderness characteristics.

In conclusion, the Ninth Circuit held that the EIS was invalid under NEPA because it did not address concerns about wilderness characteristics and also lacked alternatives that closed significant portions of the planning area to ORV use. The Ninth Circuit set aside BLM’s ROD approving the Plan and accompanying EIS and remanded the case to the district court with instructions for further remand to the BLM.

^[1] Committee for the High Desert and Western Watersheds Project joined in the suit but did not join ONDA in commenting on BLM’s draft environmental impact statement.

^[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[3] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2006).

^[4] Id. § 1712(c).

^[5] 43 C.F.R. § 1610.2 (2007).

^[6] Id. § 1610.5-2(a).

^[7] 16 U.S.C. §§ 1131-1136 (2006).

^[8] 43 U.S.C. § 1782(b) (2006).

^[9] Id. § 1711.

^[10] 43 C.F.R. § 1601.0-6 (2007).

^[11] 42 U.S.C. § 4332(C) (2006).

^[12] Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 781 (9th Cir. 2006); see also 40 C.F.R. pt. 1502 (2007).

^[13] 40 C.F.R. § 1502.14 (2007).

^[14] After identifying 32 WSAs in the planning area and completing a final EIS, BLM submitted its recommendations to the President, advising permanent preservation for 21 WSAs, and in 1992, the President submitted these recommendations to Congress. Congress has not acted on these recommendations.

^[15] 3 Bureau of Land Mgmt., U.S. Dep’t of the Interior, Proposed Southeastern Oregon Resource Management Plan and Final Environmental Statement 105 (2001), available at http://www.blm.gov/or/districts/vale/plans/files/seormp/SEORMP%20Final%20Volume%203%
20Text.pdf [hereinafter FEIS].

^[16] The Plan did consider two management possibilities for approximately 3000 acres of land adjacent to WSAs created pursuant to its recommendations to Congress. 1 FEIS, supra note 443, at 373-75.

^[17] Id. at 276-368; see also Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1712(c)(3) (2006).

^[18] 1 FEIS, supra note 15, at xxii, 269-73.

^[19] Id. at 273.

^[20] Id. at xxii, 269-73.

^[21] Or. Natural Desert Ass’n v. BLM (ONDA), 531 F.3d 1114, 1127 (9th Cir. 2008).

^[22] Id. at 1127.

^[23] Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir. 1997).

^[24] Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Vale District (2004).

^[25] BLM did not appeal the admission of ONDA’s survey. The Ninth Circuit described the survey “without expressly approving or disapproving of its particular findings” but rather “to demonstrate how the presence of wilderness values may change over time and how wilderness characteristics may have been reestablished in parts of the area covered by the Southeast Oregon Plan.” ONDA, 531 F.3d at 1128.

^[26] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 315-315o-1 (2006).

^[27] Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 992 (9th Cir. 2004).

^[28] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006). The arbitrary and capricious standard is at section 706(2)(A).

^[29] No. 2:96-CV-0870, 2006 WL 2711798 (D. Utah Sept. 20, 2006); see also Utah v. Norton, 396 F.3d 1281, 1284-85 (10th Cir. 2005).

^[30] Norton, 2006 WL 2711798, at *4.

^[31] ONDA, 531 F.3d 1114, 1136 (9th Cir. 2008).

^[32] Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1782(a) (2006).Note that section 1782(a) references section 1711(a)’s required inventory, but does not direct that areas with wilderness characteristics be identified only as part of recommending such areas for “preservation as wilderness.”

^[33] Id. § 1711(a).

^[34] ONDA, 531 F.3d at 1134.

^[35] Bureau of Land Mgmt., U.S. Dep’t of the Interior, Land Use Planning Handbook app. C, at 1, 12 (2005) [hereinafter 2005 Handbook]; see also id. app. F, at 7.

^[36] See id. app. F, at 16. Noting a discrepancy between BLM’s appellate briefs and the agency’s guidance documents, the court relied on the latter, reasoning that the guidance documents were well-reasoned, persuasive, and consistent with the Ninth Circuit’s interpretation of the statutes in question.

^[37] Wukderbess Act, 16 U.S.C. § 1131(c) (2006).

^[38] 33 F.3d 1072 (9th Cir. 1994).

^[39] Id. at 1078.

^[40] Lands Council v. Martin, 479 F.3d 636, 640 (9th Cir. 2007).

^[41] 542 U.S. 55 (2004).

^[42] 435 U.S. 519 (1978).

^[43] SUWA, 542 U.S. at 64.

^[44] ONDA, 531 F.3d. 1

Northwest Environmental Advocates v. U.S. Environmental Protection Agency

Posted on October 13, 2009 by Environmental Law

Northwest Environmental Advocates, the Ocean Conservancy, and San Francisco Baykeeper (collectively NWEA) brought suit in federal district court against the United States Environmental Protection Agency (EPA), alleging that a regulation exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA)[1] was beyond the scope of the Act. The district court concluded EPA exceeded its authority under the CWA in exempting the marine discharges from the permitting requirements and vacated challenged portions of the regulation. On appeal, the Ninth Circuit affirmed the decision of the district court and held that EPA’s regulation was invalid as an ultra vires act unauthorized by the CWA.

Section 301 of the CWA provides that, subject to certain exceptions, the discharge of any pollutant by any person is unlawful.[2] One exception to section 301 applies to discharges authorized by a permit granted pursuant to the National Pollutant Discharge Elimination System (NPDES), which is set forth in section 402 of the CWA.[3] The combined effect of sections 301(a) and 402 is that the “CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.”[4]

In 1973, EPA promulgated a regulation exempting several categories of vessel discharges from NPDES permitting requirements.[5] The regulation, 40 C.F.R. § 122.3(a), exempts “any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes from vessels, or any other discharge incidental to the normal operation of a vessel” from the permitting requirements of the NPDES program.[6] The CWA expressly exempts the discharge of vessel sewage from the NPDES permitting process and regulates such discharges by other means. As such, only three categories of discharges exempted by 40 C.F.R. § 122.3(a) were at issue in NWEA’s ultra vires claim: 1) marine engine discharges, 2) gray water discharges such as laundry, shower, and galley sink wastes, and 3) any other discharge incidental to the normal operation of a vessel, including ballast water.

NWEA’s primary concern with the regulation stemmed from the ballast water exemption. Ballast water is taken in by vessels and used for a number of purposes, including maintaining stability and compensating for changes in a ship’s cargo weights. Because ballast water is used primarily to compensate for changes in cargo, it is generally taken in and pumped out at ports along a ship’s route. In the process of gaining or releasing ballast water, ships also redistribute the living organisms present in the water. Many of these foreign organisms survive the journey to a new ecosystem and reproduce; these invasive species often have severe impacts on humans, the environment, and the economy.

NWEA had petitioned EPA for repeal of 40 C.F.R. § 122.3(a). After EPA denied NWEA’s petition, NWEA brought suit against EPA in federal district court, alleging that 40 C.F.R. § 122.3(a) is not authorized by the CWA and is therefore ultra vires.[7] NWEA’s second cause of action claimed, based on the ultra vires argument, that EPA’s rejection of its petition was “not in accordance with the law.”[8] To preserve subject matter jurisdiction, at the same time as NWEA filed suit in the district court, NWEA also filed a petition for review of EPA’s decision in the Ninth Circuit Court of Appeals.

The district court granted summary judgment in favor of NWEA on the first cause of action and ordered EPA to repeal 40 C.F.R. § 122.3(a). Additionally, the district court ordered further proceedings to determine the appropriate remedy.[9] EPA and defendant-intervenor Shipping Industry Ballast Water Coalition appealed the district court’s decision to vacate the challenged portions of the regulation and the Ninth Circuit consolidated the appeal with the petition filed directly by NWEA in the Ninth Circuit.

The Ninth Circuit reviews de novo questions involving subject matter jurisdiction,[10] application of a statute of limitations,[11] a district court’s grant of summary judgment,[12] and exhaustion of necessary administrative remedies.[13] Issues regarding whether a regulation exceeds the scope of a statute are reviewed by the Ninth Circuit under the Administrative Procedure Act,[14] which requires the court to set aside agency actions that exceed the jurisdiction, authority, or limitations of a statute.[15]

On appeal, EPA argued that the district court lacked subject matter jurisdiction over NWEA’s suit and that the Ninth Circuit should order the district court to dismiss the case. In the alternative, assuming the district court had subject matter jurisdiction, EPA claimed the statute of limitations barred NWEA’s ultra vires claim, the district court erred in finding that the CWA did not authorize the regulatory exemptions, and the district court abused its discretion in selecting the remedy.

In reviewing the district court’s decision, the Ninth Circuit first turned to the threshold question of whether the district court had subject matter jurisdiction over NWEA’s suit. The district court possessed subject matter jurisdiction over NWEA’s suit under the general federal question statute, 28 U.S.C. § 1331, unless another statute divested the district court of jurisdiction.[16] To determine whether the district court had been divested of jurisdiction, the Ninth Circuit examined section 509(b)(1) of the CWA, which specifies seven categories of agency action where the challenge must be brought in a court of appeals rather than a district court.

EPA claimed that NWEA’s ultra vires challenge fell within two categories under the CWA’s jurisdiction-divesting provisions, sections 509(b)(1)(E) and 509(b)(1)(F). In reviewing EPA’s allegations, the Ninth Circuit concluded the district court had subject matter jurisdiction over NWEA’s lawsuit because the agency action did not fall under either of these subsections. In reaching its decision, the Ninth Circuit looked first to section 509(b)(1)(E), which provides for review by the court of appeals of EPA actions in approving or promulgating effluent limitations under sections 301, 302, 306, and 405 of the CWA.[17] The court reasoned that because section 40 C.F.R. § 122.3(a) does not involve the approval or promulgation of an effluent limitation, but instead creates a categorical exception for three types of discharges, section 509(b)(1)(E) did not divest the district court of jurisdiction over NWEA’s challenge.

Second, the Ninth Circuit examined section 509(b)(1)(F), which provides for review of EPA actions in a court of appeals if the action involves issuing or denying a permit under section 402 of the CWA.[18] The court reasoned that because the three exemptions provided in the regulation were not explicitly contained in section 402 of the CWA, the case did not involve the issuing or denying of a permit, or a functionally similar action, under section 402. The Ninth Circuit determined that section 509(b)(1)(F) did not authorize original jurisdiction in the court of appeals for NWEA’s challenge because section 122.3(a) involves permanent categorical exemptions for three types of discharges from the permitting requirements-not the issuance or denial of a permit. Ultimately, the Ninth Circuit concluded that NWEA’s challenge did not fall under section 509(b)(1) of the CWA; consequently the district court had subject matter jurisdiction over the case.

The Ninth Circuit next turned to the issue of whether the statute of limitations barred the lawsuit. Under the applicable statute of limitations, civil actions commenced against the United States are barred unless the complaint is filed six years after the right of action first accrues.[19] The determination of whether the statute of limitations barred NWEA’s first cause of action depended on whether the right of action accrued in the 1970s, when EPA promulgated the regulation, or in 2003, when EPA denied NWEA’s petition. EPA conceded that the statute of limitations would not bar the suit if the right of action accrued in 2003. Looking to indistinguishable Ninth Circuit case law, the court determined that the date of the 2003 denial was the date of first accrual under the statute of limitations.[20] Therefore, NWEA timely filed their suit in the district court.

Next, the court addressed NWEA’s substantive ultra vires claim. NWEA’s first cause of action asserted the CWA does not authorize the exemption of vessel discharges found in 40 C.F.R. § 122.3(a) and that EPA acted ultra vires in promulgating the regulation. In its second cause of action, NWEA claimed that EPA did not act in accordance with the law when the agency denied its petition for rulemaking.

EPA countered with three arguments. First, because NWEA’s petition for rulemaking in 1999 challenged only the exclusion for ballast water provided in 40 C.F.R. § 122.3(a), the court should limit NWEA’s challenge to the ballast water exemption. Second, EPA argued that the CWA authorized EPA to promulgate section 122.3(a) or, alternatively, the statute is ambiguous and the court should defer to the agency’s interpretation. Third, EPA claimed that even if the CWA did not authorize the promulgation of section 122.3(a), Congress acquiesced to the regulation in post-1973 statutes.

In reviewing EPA’s first argument, the Ninth Circuit affirmed the decision of the district court to consider all three of the disputed exemptions in the regulation. Although NWEA was primarily concerned with the environmental effects of ballast water discharges, the court noted that NWEA consistently indicated that their overall goal was the repeal of all three exemptions. Additionally, EPA’s denial of NWEA’s petition explicitly noted that plaintiffs sought repeal of the entire regulation. As a result, the Ninth Circuit concluded the record contained sufficient evidence to show NWEA’s claim was not limited to ballast water discharges.

Second, the court examined the text of the CWA to determine whether section 122.3(a) was valid. When reviewing an agency’s construction of a statute, the court’s inquiry is guided by Chevron.[21] Under Chevron, the court first addresses whether Congress has spoken directly on the precise issue.[22] If the intent of Congress is clear, the court ends its inquiry and gives effect to Congress’ unambiguously expressed intent.[23]

Looking at the text of the CWA, the court first concluded that the plain meaning of the statute covers discharges from marine vessels. Under the CWA, the discharge of any pollutant from a point source into waters of the United States without a permit is unlawful.[24] Noting the definitions of point source, pollutant, and navigable waters, the court determined that vessel discharges clearly fall within the broad language of the CWA.

Having determined that vessel discharges are covered by the CWA, the court next examined whether the CWA authorized EPA to promulgate a regulatory exemption. Looking at section 402 of the CWA, the only possible source of authority for the exemption, the court determined that Congress did not give EPA authority to exempt entire categories of point source discharges from the permitting requirement. Section 402 of the CWA provides that the EPA Administrator “may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, . . . notwithstanding section 301(a), upon condition that such discharge” will meet either all applicable requirements under the CWA or the conditions the Administrator determines are necessary to carry out the Act.[25] The Ninth Circuit reasoned that because section 402 uses the word “may,” but only in the context of issuing a permit for the discharge of any pollutant, Congress only intended to give the Administrator discretion to either issue a NPDES permit or apply the total prohibition on discharges found under section 301(a)-not to develop categorical exemptions from the permitting process. Therefore, Congress’ plain intent on the face of the Act requires permits in any situation that involves the discharge of pollutants from a point source into waters of the United States.

Next, the court turned to EPA’s contention that even if the CWA did not authorize EPA to develop three categorical exemptions for marine discharges, Congress subsequently acquiesced to EPA’s interpretation of the statute. Absent “overwhelming evidence” of congressional acquiescence, courts are extremely reluctant to replace the plain text and original understanding of a statute with a different agency interpretation.[26] Because the Ninth Circuit was unable to find overwhelming evidence of congressional acquiescence to section 122.3(a)’s exemptions in the statutes or legislative history discussed by EPA, it held that there was insufficient evidence to show Congress acquiesced to EPA’s ultra vires interpretation of the CWA.

EPA relied primarily on two statutes when arguing that Congress acquiesced to the regulation-the National Defense Authorization Act of 1996 (NDAA)[27] and the Deep Seabed Hard Mineral Resources Act of 1980 (DSHMRA).[28] In the NDAA, Congress expressly exempted discharges from the normal operation of military vessels from the permitting requirements of the CWA. A Senate report on the NDAA explained that section 122.3(a) was the regulatory basis for the exemption of most non-sewage discharges from vessels.[29] However, the Ninth Circuit concluded that the report did not endorse regulatory exemptions for categories of marine discharges. Instead, the court determined that, except for the statutory exemption provided in the NDAA, Congress intended that CWA’s permitting requirements would apply to military vessels.[30] As such, the Ninth Circuit concluded that the NDAA did not endorse section 122.3(a) and did not provide evidence that Congress intended to acquiesce to the regulation.

The Ninth Circuit next turned to DSHMRA, which requires vessels engaged in deep sea mining and drilling to comply with the CWA. Under section 122.3(a), marine vessels that are not engaged in transportation-related activities are not exempt from the permitting requirements of the CWA.[31] In examining the legislative history of DSHMRA, the court determined that Congress, at most, was aware of section 122.3(a) and explicitly approved of EPA’s decision not to exempt non-transportation marine vessels from the permitting process,[32] but that there was insufficient evidence to show Congress acquiesced to section 122.3(a).

EPA also relied on four additional statutes to show congressional acquiescence to the regulation: the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA),[33] the National Invasive Species Act of 1996 (NISA),[34] the Act to Prevent Pollution from Ships (APPS),[35] and a statute regulating discharges by Alaskan cruise ships.[36] NANPCA and NISA address the problem of invasive species in ballast water discharges. However, the court concluded that the statutes merely indicated Congress’ desire to address the national problem of ballast water discharges of invasive species on multiple fronts. The statutes, therefore, did not provide overwhelming evidence of congressional acquiescence to EPA’s regulation. The Ninth Circuit also determined that the APPS, which implemented the International Convention for the Prevention of Pollution from Ships of 1973 and the Protocol of 1978 (known collectively as MARPOL 73/78), and the Alaskan cruise ship legislation, which regulates sewage and gray water discharges from cruise ships in Alaskan waters, both provide clauses that indicate nothing in the law should be construed as altering any other statute. Therefore, neither the APPS, nor the Alaskan cruise ship legislation, provided any indication of congressional intent to acquiesce to EPA’s regulation.

Lastly, the court affirmed the decision of the district court to vacate the challenged portions of the regulation and remand for further proceedings. The Ninth Circuit concluded that the district court’s remedy, which provided EPA with a two-year period in which to promulgate a new regulation, was a valid exercise of the court’s remedial powers. Additionally, having found the district court had jurisdiction over NWEA’s lawsuit, the Ninth Circuit dismissed the petition filed by NWEA in the court of appeals for lack of subject matter jurisdiction.

In summary, the Ninth Circuit held that EPA acted ultra vires in exempting certain vessel discharges under 40 C.F.R. § 122.3(a) and that EPA’s denial of the petition requesting repeal of the regulation was not in accordance with the law.

^[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2006).

^[2] Id. § 1311(a).

^[3] Id. § 1342.

^[4] N. Plains Res. Council v. Fid. Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir. 2003).

^[5] See National Pollutant Discharge Elimination System, 38 Fed. Reg. 13,528, 13,530 (May 22, 1973).

^[6] 40 C.F.R. § 122.3(a) (2008).

^[7] See Administrative Procedure Act, 5 U.S.C. § 706(2)(C) (2006) (regarding judicial review of agency actions “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”).

^[8] Id. § 706(2)(A).

^[9] At the remedy stage, six states-Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin-intervened on the side of the plaintiffs to protect their interest in state waters.

^[10] See, e.g., Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 924 (9th Cir. 1999).

^[11] See, e.g., Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988).

^[12] See, e.g., Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008 (9th Cir. 2006).

^[13] See, e.g., Great Basin Mine Watch v. Hankins, 456 F.3d 955, 961 (9th Cir. 2006).

^[14] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[15] See id. § 706(2)(C).

^[16] See 28 U.S.C. § 1331 (2006).

^[17] Federal Water Pollution Control Act, 33 U.S.C. § 1369(b)(1)(E) (2006).

^[18] Id. § 1369(b)(1)(F).

^[19] See 28 U.S.C. § 2401(a) (2000).

^[20] See Wind River Mining Corp. v. United States, 946 F.2d 710, 716 (9th Cir. 1991) (holding that the right to bring a civil suit challenging agency action accrues at time of final administrative action).

^[21] See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984).

^[22] Id.

^[23] Id.

^[24] See Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 307 (9th Cir. 1993).

^[25] Federal Water Pollution Control Act, 33 U.S.C. § 1342(a)(1) (2006).

^[26] See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 170 n.5 (2001).

^[27] 33 U.S.C. §§ 1322(a), (j), (n), 1362(6) (2000).

^[28] 30 U.S.C. §§ 1401-1473 (2000)

^[29] See S. Rep. No. 104-113, at 12 (1995).

^[30] Id. at 3.

^[31] 40 C.F.R. § 122.3(a).

^[32] See S. Rep. No. 96-360, at 2-3 (1979); see also id. at 3 (noting that DSHMRA merely “clarif[ied] the application of section 402″ to these vessels).

^[33] 16 U.S.C. §§ 4701-4751 (2000).

^[34] Pub. L. No. 104-332, 110 Stat. 4073 (1996) (amending NANPCA).

^[35] Act to Prevent Pollution from Ships of 1980, 33 U.S.C. §§ 1901-1915 (2000).

^[36] Consolidated Appropriations Act of 2001, Pub. L. No. 106-554 § 1(a)(4), 114 Stat. 2763.

North Idaho Community Action Network v. U.S. Department of Transportation

Posted on October 13, 2009 by Environmental Law

North Idaho Community Action Network (NICAN) challenged a proposed highway construction project on U.S. Highway 95 in northern Idaho, alleging the defendant agencies[1] (collectively USDOT) violated the National Environmental Policy Act (NEPA)[2] and the Department of Transportation Act (DTA).[3] The United States District Court for the District of Idaho granted summary judgment in favor of defendants, and NICAN appealed. The Ninth Circuit affirmed as to the NEPA claims, holding that USDOT: 1) fulfilled its obligations under NEPA’s alternatives provision, 2) comported with NEPA by taking a hard look at dredging impacts, 3) did not violate NEPA by failing to consider a tunnel alternative, 4) sufficiently considered impacts to historical properties, and 5) did not violate NEPA by failing to issue a supplemental environmental impact statement. The Ninth Circuit reversed as to one of the two DTA claims, holding that USDOT violated the statute by issuing a record of decision prior to evaluating impacts of all project phases on historical properties, and affirmed as to the other, holding that formal evaluation of historical properties was not required for project modifications.

USDOT proposed a four-phase construction project (the Project) to improve U.S. Highway 95 in and around Sandpoint, Idaho. The first, second, and fourth phases involved widening the highway to four lanes; the third phase involved realigning a two-mile stretch of the highway to bypass downtown Sandpoint. USDOT approved a final environmental impact statement (EIS) in September 1999 and issued a record of decision for the Project in May 2000. USDOT released an environmental assessment (EA) in April 2005 that included design changes related to the third phase of the project (Sand Creek Byway). The 2005 EA concluded the changes would not have significant impacts beyond those already considered. Based on this conclusion, USDOT issued a finding of no significant impact (FONSI). USDOT then prepared an environmental reevaluation in August 2006 (Reevalution), setting forth additional changes to project design, including the dredging of Sand Creek, and assessing their possible environmental effects. The 2006 Reevaluation concluded there was no additional significant impact and that neither a supplemental environmental impact statement (SEIS) nor a further EA was required. NICAN challenged USDOT’s approval of the Project in district court in July 2005, after the 2005 EA and FONSI but before preparation of the 2006 Reevaluation. Reviewing the district court’s grant of summary judgment de novo[4] for arbitrary and capricious action by USDOT,[5] the Ninth Circuit began by addressing NICAN’s five NEPA claims.

First, NICAN argued that USDOT violated NEPA because the 2005 EA did not consider alternatives to the project design changes described in the 2005 EA. The Ninth Circuit disagreed, holding that USDOT fulfilled its obligations under NEPA when it considered and discussed two alternatives in the 2005 EA: the Project with the design changes proposed in the 2005 EA and the Project as described in the 1999 EIS. NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”[6] Although an agency’s obligation to consider alternatives applies whether an agency is preparing an EIS or an EA, “an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS.”[7] An agency is required to “[r]igorously explore and objectively evaluate all reasonable alternatives”[8] for an EIS but is only required to include a brief discussion of reasonable alternatives for an environmental assessment.[9] Here, the Ninth Circuit held that because “the design changes to the Project proposed in the 2005 EA will not result in significant environmental effects that were not previously evaluated in the 1999 EIS,” USDOT’s brief discussion of only two alternatives was sufficient under NEPA.[10]

Second, NICAN argued that USDOT violated NEPA by failing to disclose and assess the impacts of dredging Sand Creek in the 2005 EA or in a supplemental EA. The Ninth Circuit disagreed, holding that USDOT did not act arbitrarily or capriciously in making the determinations and that it complied with NEPA in its evaluation of the proposed dredging. The factual record indicated there was not enough information about dredging and its possible impacts at the time USDOT prepared the 2005 EA. After more information became available, USDOT performed the 2006 Reevaluation and concluded that dredging would not have significant environmental impacts beyond those already identified. The court was satisfied that USDOT took the requisite “hard look” at the impacts of dredging in the 2006 Revaluation and that USDOT properly concluded that nothing in the Reevaluation necessitated a SEIS or supplemental EA.[11]

Third, NICAN argued that USDOT violated NEPA by failing to consider a tunnel alternative for the Project which was not identified until June 2006. The Ninth Circuit disagreed, holding that NEPA’s mandate to consider new information extends only to information or circumstances regarding environmental impacts that may not have been appreciated or considered when the EIS was prepared and does not extend to new alternatives absent “substantial changes in the proposed action relevant to environmental concerns.”[12] Here, the tunnel alternative and its environmental impacts were neither new information nor a new circumstance not considered when the 1999 EIS was prepared; nor was there a substantial change to the Project relevant to environmental concerns. Accordingly, the Ninth Circuit concluded USDOT did not violate NEPA by failing to consider the tunnel alternative.

Fourth, NICAN argued that USDOT violated NEPA by 1) taking a phased approach to the Project’s impact on historic properties and 2) failing to take a “hard look” at how the construction and operation of the project would affect the Burlington Northern Railroad Depot. The Ninth Circuit disagreed, holding USDOT’s broad overview in the 1999 EIS of the Project’s impacts on historic properties, coupled with the specific and detailed analysis of the impacts of the Sand Creek Byway, was more than sufficient to meet NEPA’s requirements regarding historic properties. The court explained that “NEPA requires federal agencies to consider the environmental impact of major federal actions” but imposes no independent requirement that an agency examine nonenvironmental impact of federal actions on historic properties.[13]

Fifth, NICAN argued that USDOT violated NEPA by failing to prepare an SEIS. The Ninth Circuit disagreed, holding that USDOT’s determination that the changes to the Project would not significantly impact the environment in a way not previously considered, and therefore an SEIS was not required, and was not arbitrary or capricious. An agency is required to prepare an SEIS only if changes, new information, or circumstances may result in significant environmental impacts “in a manner not previously evaluated and considered.”[14] An agency may prepare an environmental report or an EA to assist it in determining whether an SEIS is required.[15] Here, USDOT considered the changes to the Project and their impacts in both an EA and a Reevaluation, but determined those impacts were not sufficiently significant or adverse to require an SEIS. Specifically, construction of 1.1 acres of additional wetland area mitigated the 0.32 additional acres of wetlands affected by the modified Project. The court also noted the impacts of the Project were considered in the 1999 EIS, the 2005 EA, and the 2006 Reevaluation. Cumulatively, the court said, these documents showed that USDOT sufficiently considered environmental impacts.

The Ninth Circuit next considered the alleged violations of the DTA.[16] NICAN argued that USDOT violated section 4(f) the DTA 1) by failing to survey, identify, and evaluate historical properties for all four phases of the project, and 2) by determining that a DTA analysis was not required because the construction and operation of the project would not result in “use” of the historic property. Section 4(f) allows for a federal project “requiring the use of land of an historic site” to be approved only if “there is no prudent and feasible alternative to using that land and the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.”[17] The Ninth Circuit reversed on the first issue raised by NICAN, holding that an agency is required to complete the section 4(f) evaluation for the entire project prior to issuing its record of decision.

In considering the proper remedy for this violation, the Ninth Circuit determined that, while the agencies had technically violated the DTA by issuing a record of decision before completing the section 4(f) evaluation for the entire Project, “the scope of injunctive relief should be limited to precluding the [USDOT] from commencing construction of the remaining three phases of the Project until the section 4(f) evaluation has been fully completed.”[18] The Ninth Circuit reasoned that because all parties agreed the section 4(f) evaluation had been fully completed for the Sand Creek Byway phase of the project, it was unnecessary to enjoin that portion of the Project.

The Ninth Circuit affirmed on the second DTA issue, holding USDOT did not act arbitrarily or capriciously in determining that modifications to the Project discussed in the 2005 EA would not “use” the depot property within the meaning of section 4(f). The court explained that the modifications at issue were either improvements which would benefit the Depot and thus not permanently incorporate the Depot property into a transportation facility,[19] or temporary and minor improvements which properly constituted a temporary occupancy, and not a “use” under section 4(f).[20]

In summary, the Ninth Circuit affirmed the decision of the district court as to the NEPA claims, reversed and remanded the DTA claim regarding issuance of a record of decision with instructions to the district court to enter a limited injunction, and affirmed as to USDOT’s evaluation of historical properties for modifications under the DTA.

^[1] Defendants were the United States Department of Transportation, the Federal Highway Administration, the United States Fish & Wildlife Service, and the Idaho Transportation Department.

^[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[3] Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (2006).

^[4] Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007).

^[5] Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2006) (allowing a reviewing court to set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

^[6] 42 U.S.C. § 4332(E) (2006).

^[7] N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp. (North Idaho), 545 F.3d 1147, 1153-54 (9th Cir. 2008)(citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005)).

^[8] See 40 C.F.R. § 1502.14(a) (2008).

^[9] See id. § 1508.9(b).

^[10] See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245-49 (9th Cir. 2005) (holding that agency complied with NEPA’s alternatives provision in preparing an environmental assessment where the agency considered only two alternatives).

^[11] See Price Road Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997)(holding that an agency is in full compliance with NEPA and is not required to conduct a supplemental EA if the agency takes the requisite “hard look” and determines that the new impacts will not be significant or significantly different from those already considered).

^[12] NEPA requires agencies to prepare supplements to either draft or final environmental impact statements if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” See 40 C.F.R. § 1502(c)(1)(ii) (2008).

^[13] North Idaho, 545 F.3d 1147, 1156 (9th Cir. 2008)(citing San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005)).

^[14] Westlands Water Dist. v. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir. 2005).

^[15] See 23 C.F.R. §§ 771.119(a), 771.129,771.130(c) (2008).

^[16] Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (2006).

^[17] Id.

^[18] North Idaho, 545 F.3d at 1160-61.

^[19] 23 C.F.R. § 771.135(p)(1) (2000)(repromulgated at 23 C.F.R. § 771.17 (2008)).

^[20] Id.