Home » Case Summaries » 1998 » Churchill County v. Babbitt


Churchill County v. Babbitt



In this case, local governments sought to prevent the federal government from implementing a water rights acquisition program without first following procedures mandated by the National Environmental Policy Act (NEPA).[1] The Ninth Circuit’s opinion did not address the merits of the underlying case, but instead focused on issues of justiciability and procedure.

This case arose out of the federal government’s efforts to deal with the unforeseen environmental consequences of an early attempt to irrigate much of western Nevada. While the Newlands Reclamation Project had created a thriving agricultural community in this area, its water diversions had also produced adverse environmental impacts to wetlands in some locations. In an effort to deal with some of these impacts in the Truckee and Carson Divisions of the project, Congress in 1990 passed the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act (Settlement Act).[2] Section 206 of the Settlement Act establishes a water rights acquisition plan (the Plan) “to increase the wetlands and . . . sustain indefinitely approximately twenty-five thousand acres of wetlands in the Lahontan Valley.”[3] The Plan authorizes the United States Fish and Wildlife Service (FWS) to purchase land or water rights from private owners and transfer these interests to publicly owned wetlands in the Lahontan Valley.

FWS announced its intent to proceed under the Plan in a record of decision (ROD) in November 1996. The ROD stated that FWS would purchase fifty-five thousand acre-feet of water from the Carson Division starting in December 1996. In addition, FWS would “seek an additional thirty-three thousand acre feet through leasing programs and other methods.”[4]

Because the Carson Division lies within Churchill County and near the City of Fallon, officials from these municipalities expressed concern that the Plan, combined with other water projects under the Settlement Act, might adversely affect both their land and their ability to monitor and regulate their supply of local drinking water. They sued Bruce Babbitt, the Secretary of the Interior, under the Administrative Procedure Act (APA),[5] alleging that he had violated NEPA’s procedural requirements when he failed to prepare a programmatic environmental impact statement (PEIS) that considered the combined effect of the Plan and other water programs in the area. The district court determined that the plaintiffs did not have standing to bring the suit and granted summary judgment in favor of the government. Churchill County (County) and the City of Fallon (City) appealed.

On appeal, the Ninth Circuit reversed the decision of the district court. Conducting a de novo review of the question of the appellants’ standing, the court stated that, at a constitutional minimum, a plaintiff must meet the requirements of the three-part test that the United States Supreme Court announced in Lujan v. Defenders of Wildlife[6] in order to bring a claim in federal court. Under Lujan, a plaintiff must first establish that he has suffered an “injury in fact.”[7] The Supreme Court defined this type of injury as an “invasion of a legally protected right” that is “concrete and particularized” and “actual or imminent,” as opposed to “conjectural or hypothetical.”[8] Next, a plaintiff must establish a “causal connection between the injury and the conduct complained of.”[9] Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,'” that a favorable decision will redress the injury.[10]

The Ninth Circuit emphasized that because the appellants sought standing to address an alleged procedural injury, the standards for establishing standing were somewhat relaxed. The court quoted from a footnote in Defenders of Wildlife to support this conclusion: “‘procedural rights’ are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.”[11] Under the Ninth Circuit’s test for procedural standing, a plaintiff need only establish “1) that it has been accorded a procedural right to protect its interests, and 2) that it has a threatened concrete interest that is the ultimate basis of its standing.”[12]

The court found that the appellants satisfied the first prong of the test established in Douglas County v. Babbitt,[13] because NEPA accorded them a procedural right to protect their concrete interests. Section 4332(2)(C) of NEPA mandates the preparation of an environmental impact statement (EIS) on major federal actions that significantly affect the environment.[14] It grants “local agencies, which are authorized to develop and enforce environmental standards” the right to submit comments on the EIS.[15] Because Nevada statutes authorized the appellants to prepare and adopt land management plans, appellants qualified as local agencies under NEPA. Thus, NEPA granted the appellants a procedural right to protect their land interests.

The court next determined that the appellants had demonstrated a reasonable probability that the failure to prepare a PEIS imminently threatened their land interests. In addition, the Department of the Interior’s final environmental impact statement (FEIS) “noted likely adverse effects in the County and the City’s groundwater levels and quality.”[16] Finally, no report by the Department of the Interior had addressed the “cumulative and synergistic” effects of the proposed action and other Settlement Act projects.[17] Because the appellants either possessed or managed, or both possessed and managed lands adjacent to the federal lands involved in the Plan, NEPA required the Department of the Interior to adequately consider the environmental consequences that the Plan would have on those lands. By demonstrating that the Department of the Interior had failed to do so, City and County “established the imminence of the threatened concrete interest necessary for procedural standing.”[18]

The Ninth Circuit rejected the appellees’ argument that County and City did not met the imminence requirement for standing. The government argued, and the district court held, that Lujan v. National Wildlife Federation[19] required the appellants to “own or manage land ‘actually affected by the challenged activity, not merely an area ‘adjacent to’ or ‘in the vicinity’ of the affected land'” in order to show imminence of injury.[20] The Ninth Circuit disagreed with this interpretation of National Wildlife Federation, stating that the case “did not hold that all plaintiffs have to use the lands directly affected by the challenged action. Rather, it held that vague allegations of injury were insufficient for standing when unsupported by any specific showing that the plaintiffs’ use of land was affected by the challenged decision.”[21] Because the appellants had adequately demonstrated that the cumulative consequences of the Settlement Act’s programs were likely to adversely affect their lands, National Wildlife Federation did not require any heightened demonstration of imminence in this case.

The court next determined that the appellants met the requirements for standing under the APA. Because the County and City brought their suit under the APA, they were required to establish standing under that Act in addition to establishing a more general procedural standing. In order to show standing under the APA, the appellants needed to establish 1) “that there ha[d] been final agency action that adversely affected them,” and 2) “that their injury f[ell] within the zone of interests protected by the section of NEPA they claim[ed] was violated.”[22] The appellants satisfied the first prong of the APA’s standing requirements because the ROD was a final agency action that “determined the various actors’ rights and obligations.”[23] The appellants satisfied the second requirement because a threat to the environmental health of water and land fell within the zone of interests that NEPA protects. Thus, the Ninth Circuit held that the County and the City had established standing to bring their suit under the APA.

Finally, the court upheld the district court’s decision to permit Sierra Pacific Power Company (Sierra Pacific), a local utility company, to intervene as a defendant in the case. The district court had allowed Sierra Pacific to participate as an intervenor, but it limited that participation to the remedial phase of the trial, during which the court decided both the propriety and the scope of an injunction. The district court and the Ninth Circuit both rejected Sierra Pacific’s argument that it should be allowed to intervene as of right.

The appellate court noted that Rule 24 of the Federal Rules of Civil Procedure requires that a party seeking to intervene as a matter of right have a significantly protectable interest in the underlying action.[24] Sierra Pacific did not and, in fact, could not have such an interest: because “NEPA requires action only by the government, only the government can be liable under NEPA.”[25] Thus, because a private entity cannot comply with NEPA, a private party cannot intervene as a defendant in a NEPA action. While the Ninth Circuit agreed that Sierra Pacific did indeed have some interest in the outcome of the underlying action, it held that the district court did not err by limiting Sierra Pacific’s intervention to the remedial phase of the proceedings.

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[2] Fallon Paiute Shoshone Tribes Water Rights Settlement Act of 1990, Pub. L. No. 101-618, 104 Stat. 3289.

[3] Churchill County v. Babbitt, 150 F.3d 1072, 1076 (9th Cir.) (citing Fallon Paiute Shoshone Tribes Water Rights Settlement Act § 206, 104 Stat. at 3308), as amended by 158 F.3d 491 (9th Cir. 1998).

[4] Id.

[5] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

[6] 504 U.S. 555 (1992).

[7] Id. at 560.

[8] Id.

[9] Id.

[10] Id.

[11] 150 F.3d at 1077 (quoting Defenders of Wildlife, 504 U.S. at 572 n.7).

[12] Id. at 1078 (citing Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)).

[13] Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995).

[14] 42 U.S.C. § 4332(2)(C) (1994).

[15] Id.

[16] 150 F.3d at 1079.

[17] 42 U.S.C. § 4332(2)(C) (1994).

[18] 150 F.3d at 1079.

[19] 497 U.S. 871 (1990).

[20] Id. at 887-89 (quoting Lujan v. National Wildlife Federation, 497 U.S. at 887-89).

[21] 150 F.3d at 1080.

[22] Id.

[23] Id. at 1080-81.

[24] Fed. R. Civ. P. 24.

[25] 150 F.3d at 1082.

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