Category Archives: Case Summaries

WildWest Institute v. Bull

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WildWest Institute and Friends of the Bitterroot, Inc. (collectively WildWest) filed suit against the United States Forest Service (USFS), alleging the agency’s hazardous fuel reduction project for Montana and Idaho’s Bitterroot National Forest violated the National Environmental Policy Act (NEPA),[1] the National Forest Management Act (NFMA),[2] and the Healthy Forests Restoration Act (HFRA).[3] Following a Ninth Circuit opinion affirming denial of WildWest’s request for a preliminary injunction[4] and subsequent grant of summary judgment in favor of USFS by the United States District Court for the District of Montana, WildWest appealed to the Ninth Circuit. The Ninth Circuit affirmed the district court’s grant of summary judgment against WildWest, holding that USFS did not commit procedural or substantive violations in its record of decision (ROD) and accompanying final environmental impact statement (FEIS).

After Montana’s Middle East Fork area of the Bitterroot National Forest suffered severe damage as a result of wildfires in the summer of 2000, USFS, pursuant to its management role over national forests, developed the Middle East Fork Hazardous Fuel Reduction Project (Project). The Project’s purpose was to reduce fire threats in the region, restore fire-adapted ecosystems, and restore stands affected by a Douglas fir bark beetle epidemic by treating infested and at-risk forest lands. In compliance with HFRA, USFS studied, developed, and described the proposed agency action, a no-action alternative, and an additional action alternative proposed by WildWest.[5]

Following at least twelve public meetings, a forty-five day public comment period, and analyses of alternative plans, USFS announced the FEIS at a press conference. Several vocal opponents of the Project were excluded from the press conference. In the FEIS, USFS adopted a modified version of the agency’s alternative, which called for treatment of 4938 acres in the Middle East Fork area, including approximately 2983 acres of commercial treatments. In response to WildWest’s objections during the comment process, USFS made a number of changes to its proposed alternative before publication of its ROD, which resulted in 1534 acres from being dropped from treatment. Specifically, USFS decided not to treat old growth habitat or units with “greater than 15% detrimental soil reliance or units . . . projected to have greater than 15% disturbance after the treatments,” not to perform summer ground-based tractor harvest operations, and not treat stands where further field review was needed to corroborate determinations of the agency’s soil scientist.[6]

On appeal, WildWest argued USFS violated NEPA in three ways: 1) by irretrievably committing resources in favor of its preferred alternative before making its final decision, 2) by failing to engage in adequate public collaboration, and 3) by failing to discuss competing views of the agency’s own soil scientist in the FEIS. Wildwest also challenged USFS’s substantive decision, alleging the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation violated NFMA and HFRA. The Ninth Circuit began by examining WildWest’s argument that USFS committed procedural violations. NEPA prohibits USFS from taking action that would limit its consideration of alternatives identified in the decision-making process, including “committing resources which would prejudice the selection of alternative plans.”[7] WildWest argued that USFS violated this requirement by prematurely marking trees in preparation for logging before issuance of the ROD and FEIS. The Ninth Circuit rejected this argument, holding that USFS’s pre-marking of trees did not irretrievably commit the agency to a particular course of action because the monetary expenditure involved was not so substantial that it limited such choice. Conceding that “a financial commitment can, in some instances, constitute an irretrievable commitment” of resources, the Ninth Circuit cautioned that Ninth Circuit “cases have focused on the commitment of natural resources, not necessarily the agency’s financial resources.”[8] In the instant case, the Ninth Circuit explained that USFS’s spending of $208,000 to pre-mark trees was not such a substantial financial commitment as to limit the choice of reasonable alternatives, as demonstrated by the fact that the ROD ultimately excluded 410 acres of pre-marked timber from treatment.

Second, the Ninth Circuit rejected the allegation that USFS had violated NEPA by failure to engage in adequate public collaboration. Under NEPA, USFS is required to involve the public in its decision-making process,[9] including the specific requirement that the agency must provide notice of public meetings.[10] The Ninth Circuit court rejected WildWest’s arguments that USFS acted improperly when it removed conservation proponents from a notice mailing list, failed to announce that a HFRA project would be discussed at the meeting, failed to indicate in the FEIS that it had received more than 11,000 public comments in opposition to the Project, and failed to give notice of when the FEIS would be announced. Explaining that NEPA does not specify a particular form of notice, the Court noted that USFS had, prior to holding two public meetings, taken several steps that provided notice, including publishing an announcement in a public newspaper, issuing a news release, and sending individual notices to interested members of the public, including WildWest. Further, the Ninth Circuit explained there is no NEPA requirement that USFS identify the number of public comments received, and that USFS did properly summarize the nature of the comments and specific substantive responses in the FEIS. Finally, the court rejected the assertion that USFS violated NEPA by holding a closed press conference to announce adoption of the FEIS, explaining that NEPA contains no requirement that agencies give notice of announcements of final decisions nor requires agencies to make those announcements a public event.

Third, the Ninth Circuit rejected WildWest’s assertion that USFS violated NEPA by disregarding the data and opinions of its own soils expert. NEPA requires that, in the FEIS, USFS discuss opposing views and indicate the agency’s response to the issues raised.[11] The court held that USFS did not disregard the soil expert’s findings, pointing to an acknowledgement and explanation of USFS’s disagreement with the expert’s conclusions in the FEIS.

Next, the Ninth Circuit addressed WildWest’s substantive NFMA and HFRA claims.[12] Under NFMA, USFS may harvest timber from national forests only where soil, slope, or watershed conditions will not be irreversibly damaged.[13] Additionally, NFMA directs USFS to perform continuous monitoring and assessment in the field to evaluate the effects its management plans have on the productivity of the land.[14] Because the Bitterroot National Forest Plan does not provide specific numeric soil standards, USFS applied its Region One Soil Quality Standards (R1-SQS), which provide that the cumulative detrimental impact of activities should be no more than fifteen percent of the activity area. WildWest asserted this technique violated NFMA’s substantive soil productivity requirements because the R1-SQSs are facially unreliable, and USFS failed to properly consider cumulative impacts in determining whether the project satisfied such a standard. The Ninth Circuit rejected the first assertion on grounds that WildWest failed to raise the challenge in the district court, and declined to exercise its discretion to consider the newly raised issue.[15] The Ninth Circuit similarly rejected WildWest’s second argument because the record showed USFS considered the cumulative impacts from past timber harvests and had concluded these activities did not reduce soil or site productivity in violation of soil quality standards.

The court also rejected WildWest’s various challenges to the Project’s management of old growth habitat. HFRA requires that USFS maintain or help restore old growth stands when undertaking fuel reduction projects.[16] Accordingly, the ROD accompanying the FEIS indicated that the Project would not treat old growth habitat. WildWest challenged the assertion, arguing that USFS’s classification was flawed because it was based on an analysis of “imminently dead” trees. The Ninth Circuit rejected this argument because the “imminently dead” standard applied to tree marking, not classification of old growth status; and USFS properly applied its selected methodology. The Ninth Circuit also rejected WildWest’s argument that the Project violated substantive old growth standards, in light of USFS’s conclusion that the Project does not treat old growth. Finally, the Ninth Circuit rejected WildWest’s argument that USFS is required to designate replacement habitat. Noting WildWest’s argument relied on a nonbinding district court case,[17] the Ninth Circuit concluded that, even assuming USFS is required to designate replacement habitat, USFS had satisfied that requirement by demonstrating the Project retains “the largest, healthiest and dominant residual trees” that may someday become old growth.[18]

Finally, the Ninth Circuit examined WildWest’s argument that USFS failed to consider the Project’s impact on population trends of management indicator species (MIS) such as the pileated woodpecker, northern goshawk, and black-backed woodpecker. Under NFMA, USFS is required to provide for diversity of plant and animal communities when managing national forests.[19] WildWest argued that the FEIS did not acknowledge the pileated woodpecker’s nesting preferences. The court disagreed, pointing out that the FEIS not only considered the pileated woodpecker’s habitat needs but also explained that prior forest management activities did not appear to have affected species viability. WildWest also asserted that USFS inadequately analyzed the Project’s impact on the northern goshawk by failing to conduct surveys to identify nest stands. The court also rejected this argument, concluding that USFS properly considered the goshawk’s habitat needs because the FEIS indicated USFS conducted surveys and took steps to avoid treatment within thirty acres of existing and potential goshawk nesting areas. Next, WildWest argued that USFS did not properly consider the Project’s impact on the black-backed woodpecker. The Ninth Circuit similarly rejected this argument, explaining that the record supported USFS’s conclusion that the Project would have no impact on black-backed woodpeckers or their habitat because the FEIS noted that other areas of the Bitterroot Forest contain ample habitat for black-backed woodpeckers while the Project area contained only minimal black-backed woodpecker habitat

In summary, the Ninth Circuit affirmed the decision of the district court, concluding the district court properly granted summary judgment in favor of USFS on all of the NEPA, NFMA, and HFRA claims asserted by WildWest.

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

[2] National Forest Management Act of 1976, 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)).

[3] Healthy Forest Restoration Act of 2003, 16 U.S.C. §§ 6501-6591 (2006).

[4] WildWest Inst. v. Bull (WildWest I), 472 F.3d 587 (9th Cir. 2006).

[5] 16 U.S.C. § 1614(c)(1) (2006) (requiring that USFS “study, develop, and describe the proposed agency action; the alternative of no action; and an additional action alternative . . . proposed during scoping or the collaborative process” when that final alternative “meets the purpose and needs of the project”).

[6] WildWest Inst. v. Bull (WildWest II), 547 F.3d 1162, 1167 (9th Cir. 2008).

[7] Id. at 1168 (internal citations omitted); see also 40 C.F.R. §§ 1502.2(f), 1506.1(a)(2)(2008).

[8] WildWest II, 547 F.3d at 1168; see also Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998) (holding no NEPA violation occurredwhen USFS had not, by virtue of developing tentative harvest schedule, irreversibly committed the “resources of Ushk Bay to logging”); Conner v. Burford, 848 F.2d 1441, 1449 (9th Cir. 1988) (affirming the district court’s finding of a NEPA violation when government sold oil and gas leases within a national forest without reserving the right to prevent surface-disturbing activity).

[9] 40 C.F.R. § 1500.2(d) (2008) (dictating that federal agencies “shall to the fullest extent possible . . . [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment”).

[10] Id. § 1506.6(b).

[11] Id. § 1502.9(b).

[12] The Ninth Circuit explained that its analysis of WildWest’s substantive claims was guided by the court’s recent decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc), noting that, under the Lands Council standard, the Ninth Circuit does not act as a reviewing body of scientists, but rather only reviews whether the agency “support[s] its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency in its expertise deems reliable.” Id. at 994.

[13] National Forest Management Act, 16 U.S.C. §1604(g)(3)(E)(i) (2006).

[14] Id. § 1604(g)(3)(C).

[15] See Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004) (explaining that, while an issue raised for the first time on appeal is generally deemed waived, the appellate court has discretion to consider the raised issue when 1) review is necessary to prevent a miscarriage of justice, 2) the issue arises on appeal because of a change in the underlying law, or 3) the issue is purely legal and does not require a further developed factual record).

[16] Healthy Forest Restoration Act of 2003, 16 U.S.C. § 6512(e)(2) (2006).

[17] Lands Council v. Vaught, 198 F. Supp. 2d 1211, 1224 (E.D. Wash. 2002) (holding that to comply with the NFMA, USFS must demonstrate either that adequate old growth acreage exists in the forest to satisfy USFS’s old growth standards or that the timber slated to be harvested under the Project is not needed to fulfill old growth standards).The Ninth Circuit declined to review the merits of this district court decision.

[18] WildWest II, 547 F.3d 1162, 1174 (9th Cir. 2008).

[19] 16 U.S.C. § 1604(g)(3)(B) (2006).

League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Service

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Two environmental groups, League of Wilderness Defenders-Blue Mountains Biodiversity Project and Cascadia Wildlands Project (collectively LOWD), sought declaratory and injunctive relief against the United States Forest Service (USFS) for a project that allowed commercial logging in the Ochoco National Forest. LOWD sued USFS pursuant to the Administrative Procedure Act (APA),[1] alleging that the Deep Creek Vegetation Management Project (Project) violated the National Environmental Policy Act (NEPA),[2] the National Forest Management Act (NFMA),[3] and the area’s Land and Resource Management Plan (LRMP). The United States District Court for the District of Oregon granted summary judgment to USFS. On appeal, the Ninth Circuit upheld the district court’s ruling on the NFMA claims, holding that USFS properly marked large-diameter trees to avoid unauthorized harvesting and adequately maintained connective habitat corridors in the Project’s planning area. However, the Ninth Circuit reversed the district court’s NEPA ruling and remanded the case to USFS to issue NEPA documentation that considered the effects of past timber sales in conjunction with the Project.

In 1999, after a USFS report, the Deep Creek Watershed Analysis (Watershed Analysis), recommended a mix of management actions to improve conditions in the Deep Creek watershed, USFS initiated NEPA documentation for the Project. In January 2004, USFS issued a final supplemental environmental impact statement (FSEIS) and a corresponding record of decision (ROD).[4] The ROD selected the Project alternative which allowed commercial timber harvesting, precommercial thinning, fuel-reduction treatments, new and temporary road construction, and road re-construction. In all, the Project allowed logging of 12.8 million board feet of timber, primarily through tractor logging. After USFS denied LOWD’s administrative appeal of the ROD, LOWD sued USFS in district court, alleging that the Project violated NEPA, NFMA, and the LMRP. The district court adopted the findings and recommendations of the magistrate judge, granted summary judgment to USFS, and dismissed LOWD’s suit. LOWD timely appealed.

The Ninth Circuit reviews a district court’s summary judgment ruling de novo.[5] Under the APA, the Ninth Circuit may set aside only actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[6] To violate this narrow standard, the agency must have made a “clear error of judgment.”[7]

The Ninth Circuit first examined LOWD’s allegation that USFS violated NEPA[8] by failing to adequately consider the cumulative effects of the Project because USFS considered cumulative effects in the aggregate. The Ninth Circuit rejected USFS’s argument that Department of Transportation v. Public Citizen[9] allowed USFS to consider the effects of past actions in the aggregate,[10] because in this case, unlike in Public Citizen, USFS possessed statutory authority to regulate the environmental consequences of the Project.[11] However, the Ninth Circuit concluded that a 2005 Council on Environmental Quality (CEQ) memorandum interpreting NEPA regulations, which the magistrate judge struck from the record, did grant USFS the authority to consider past effects in the aggregate. The Ninth Circuit ruled that the magistrate judge’s decision to strike the CEQ memorandum constituted an abuse of discretion. Further, the memorandum deserved deference under Auer v. Robbins,[12] even though USFS offered the memorandum to support its interpretation of NEPA regulations for the first time during summary judgment proceedings, because the memorandum’s interpretation was not “plainly erroneous or inconsistent” with the regulations and LOWD failed to offer evidence that the interpretation did not reflect CEQ’s “fair and considered judgment” on the cumulative effects issue.[13] The court also noted that although Ninth Circuit precedent required USFS to catalogue “relevant” past timber sales,[14] the court reasoned that it could not “tell [USFS] what specific evidence to include, [or] how specifically to present it.”[15]

Although the Ninth Circuit concluded that USFS’s analysis of cumulative impacts in aggregate form satisfied NEPA, the court held the Project’s FSEIS itself failed review for arbitrary and capriciousness. The Ninth Circuit explained the FSEIS failed review for being arbitrary and captricious. USFS had argued that the Watershed Analysis, which prompted the Project but had not been subject to NEPA review, considered the past effects of timber sales and supplemented the FSEIS’s specific mention of only one previous timber sale. Citing the Ninth Circuit’s previous decision in Kern v. Bureau of Land Management,[16] the court reasoned that USFS could not, under NEPA regulations,[17] tier the FSEIS to the Watershed Analysis because the Watershed Analysis was a non-NEPA document. Thus, the Ninth Circuit reversed the district court’s ruling and remanded the case to USFS to reissue NEPA documentation that included relevant information about past timber sales.

Next, the Ninth Circuit addressed LOWD’s claims that USFS failed to consider the impact of future timber sales as part of its cumulative effects analysis. The FSEIS expressly stated that USFS did not plan for any timber projects within the Deep Creek watershed for the foreseeable future, which distinguished the Project from others with multiple planned timber sales.[18] Thus, because USFS had no reason to discuss the effects of future timber sales to satisfy the cumulative effects standard, the Ninth Circuit affirmed the district court’s ruling.

The Ninth Circuit also rejected LOWD’s argument that USFS failed to consider past, present, and future grazing practices as part of NEPA’s cumulative effects analysis. First, the court ruled that the FSEIS adequately evaluated the cumulative effects of past grazing, because the FSEIS traced the detrimental impacts of grazing on the watershed through various eras of land management. Second, the court concluded the FSEIS considered present grazing practices in its cumulative effects analysis, because the USFS discussed grazing practices’ present effect on the watershed in several sections, including a section titled “Cumulative Effects on Range.” Finally, because the FSEIS explained that future grazing regimes and specific grazing allotments were to be considered under separate environmental analyses, the court reasoned that any discussion of future effects from grazing was impracticable. Thus, the Ninth Circuit affirmed the district court’s ruling that the FSEIS adequately considered the cumulative effects of grazing.

The Ninth Circuit then considered LOWD’s contention that the Project would violate NFMA and the Ochoco LRMP by allowing the logging of trees equal to or greater than twenty-one inches in diameter[19] and by failing to ensure agency personnel marked the trees.[20] Responding to the district court’s concerns about correct marking of trees, USFS produced declarations of two USFS employees. One employee described how she supervised the training and work of the marking crew, and the other employee conveyed how the timber sale contract described the tree marking and provided further protections against unauthorized harvest. Based on these declarations, the Ninth Circuit affirmed the district court’s decision that the marking complied with NFMA and with the requirements of the Ochoco LRMP.

Finally, the Ninth Circuit examined LOWD’s allegation that the Project failed to maintain connective habitat corridors in the planning area, in violation of NFMA and the Ochoco LRMP. The Ochoco LRMP’s standards allow harvesting within corridors that connect old growth habitats if the corridors, inter alia, maintain stands with canopy closures that are within the top one-third of site potential and stand widths remain at least 400 feet wide at their narrowest point.[21] LOWD interpreted the LRMP standards to require that all stands within a connective corridor must be in the top one-third of site potential. Under LOWD’s interpretation, because the FSEIS stated that 77% of the planning area did not contain canopy closures within the top one-third of site potential, none of the timber stands met the connectivity corridor requirements. In contrast, USFS interpreted the standards to apply to individual stands, not connective corridors as a whole, which would permit harvesting within a stand that met the canopy closure and width requirements, regardless of which corridor the stand was in.

The Ninth Circuit deemed USFS’s interpretation of the connectivity corridor requirements more persuasive than LOWD’s. Under the deferential standard of Auer v. Robbins,[22] USFS’s interpretation did not appear plainly erroneous or inconsistent because the LRMP’s standards referred to individual stands instead of “every stand or all stands” and allowed harvesting “within connectivity corridors” instead of “harvesting a connectivity corridor” or “harvesting connectivity corridors” generally.[23] The court also explained that the FSEIS relied on certified findings that the silvicultural treatments would ensure that the stands would remain within the top one-third of their site potential. Furthermore, the court observed that LOWD did not dispute that the Project would fulfill the Ochoco LRMP’s substantive requirement to maintain connective corridors. Thus, the Ninth Circuit affirmed the district court’s ruling that the Project did not violate the connective-corridor requirements of NFMA and the Ochoco LRMP.

In conclusion, the Ninth Circuit affirmed the district court’s grant of summary judgment to USFS on LOWD’s claims under NFMA and the Ochoco LRMP. The Ninth Circuit also affirmed that USFS’s consideration of the effects of grazing practices and present and future timber sales in the Deep Creek area satisfied NEPA’s requirement to adequately consider the Project’s cumulative effects. Although the court held USFS could analyze the effects of past timber sales in the aggregate, it concluded that USFS violated NEPA by tiering the FSEIS to a planning document that lacked NEPA analysis. Thus, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of USFS and remanded the task of preparing NEPA-compliant documentation of the effects of past timber sales to the agency.

[1] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

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

[3] National Forest Management Act of 1976, 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] USFS initially released an FSEIS and ROD in September 2001. LOWD filed an administrative appeal against the ROD, which prompted USFS to withdraw the ROD for further analysis and public comment. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv. (League of Wilderness Defenders), 549 F.3d 1211, 1214 (9th Cir. 2008).

[5] Nw. Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1132 (9th Cir. 2006).

[6] 5 U.S.C. § 706(2) (2006).

[7] Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

[8] National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2006); 40 C.F.R. § 1508.7 (2008).

[9] 541 U.S. 752 (2004).

[10] Id. at 769-70.

[11] See Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134 n.20 (9th Cir. 2007).

[12] 519 U.S. 452, 461 (1997).

[13] League of Wilderness Defenders, 549 F.3d 1211, 1217-18 (9th Cir. 2008).

[14] Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2005).

[15] League of Wilderness Defenders, 549 F.3d at 1219.

… [16]284 F.3d 1062, 1072-73 (9th Cir. 2002).

[17] 40 C.F.R. § 1508.28 (2008).

[18] See, e.g., Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-16 (9th Cir. 1998) (holding NEPA analysis inadequate when Environmental Assessment failed to analyze multiple future salvage logging projects within the Tower Fire area).

[19] National Forest Management Act of 1976, 16 U.S.C. § 1604(i) (2006) (mandating consistency between site-specific projects and LRMPs). The Ochoco LRMP, as amended in 1993, proscribed “the logging of green trees larger than 21 inches at breast height.” League of Wilderness Defenders, 549 F.3d at 1221.

[20] 16 U.S.C. § 472a(g) (2006).

[21] League of Wilderness Defenders, 549 F.3d at 1222 (citing standard 6(d)(3)(a)(2) of the Ochoco LRMP).

[22] 519 U.S. 452, 461-62 (1997) (discussing how an agency’s interpretation of its own regulations is entitled to substantial deference).

[23] League of Wilderness Defenders, 549 F.3d at 1223.

Natural Resources Defense Council v. U.S. Environmental Protection Agency

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The Natural Resources Defense Council, along with various environmental advocacy groups (collectively NRDC),[1] petitioned the Ninth Circuit for review of a stormwater discharge rule promulgated by the U.S. Environmental Protection Agency (EPA). The challenged rule exempted discharges of sediment from oil and gas construction activities from the permitting requirements of the Clean Water Act (CWA),[2] even if these activities contributed to violations of water quality standards. The Ninth Circuit held the rule was an impermissible interpretation of section 402(l)(2) of the CWA because it was arbitrary and capricious. The Ninth Circuit vacated the rule and remanded the rule to EPA for further proceedings.

The National Pollutant Discharge Elimination System (NPDES) under the CWA requires dischargers obtain permits for any discharge of a pollutant from a point source.[3] Relevant to the case before the court, section 402(l)(2) exempts the discharge of uncontaminated stormwater runoff from oil, gas, and mining operations from the NPDES permitting requirements.[4] Section 402(l)(2) also provides the EPA Administrator discretion to determine whether stormwater runoff at such sites is contaminated.[5] In interpreting section 402(l)(2) prior to 2005, EPA took the position that all construction activities associated with oil, gas, or mining operations were ineligible for the exemption because of the serious water quality impacts caused by stormwater discharges polluted with construction site sediment.[6]

In 2005, Congress passed the Energy Policy Act.[7] Section 323 of the Energy Policy Act amended the CWA by expressly incorporating construction activities that occur at oil and gas operation sites into the definition of “‘oil and gas exploration, production, processing, or treatment operations, or transmission facilities’ . . . thereby bringing such activities within the CWA section 402(l)(2) exemption from the NPDES permitting requirement.”[8] In response, EPA issued a notice of proposed rulemaking, indicating the agency would modify EPA’s NPDES stormwater permit regulations to change the definition of oil and gas operations and to modify the agency’s interpretation of section 402(l)(2).[9] Ultimately, EPA promulgated the challenged rule, which exempted stormwater discharges comprised solely of sediment from oil and gas construction activities from the permitting requirements, even if such discharges contributed to a violation of a water quality standard.[10] In 2006, NRDC petitioned the Ninth Circuit for direct review of EPA’s promulgated rule.

The Ninth Circuit began by determining it had jurisdiction to review the petition and that petitioners NRDC had standing to bring the petition under the doctrine of associational standing. Next, the court explained it would review EPA’s final rule under the Administrative Procedure Act (APA),[11] which authorizes the court to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[12] Because petitioners challenged EPA’s interpretation of section 323 of the Energy Policy Act, the court applied the two-step approach first set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron).[13]

The first step of the Chevron analysis required the court to determine whether “Congress, when it amended section 503(24) of the CWA, through section 323 of the Energy Policy Act, unambiguously intended to exempt from NPDES permitting requirements for oil and gas construction activities the discharge of storm water runoff contaminated solely with sediment.”[14] Explaining that neither CWA section 402(l) nor section 323 of the Energy Policy Act mention the term “sediment,” the court concluded a plain language analysis of the statute does not indicate Congress unambiguously intended to exempt stormwater discharges contaminated only with sediment from the NPDES permitting process. Similarly, the court concluded the legislative history of section 402(l)(2), which included the history of section 323 of the Energy Policy Act, did not unambiguously indicate whether Congress intended to exempt such discharges. Because the Ninth Circuit could not find evidence to show Congress intended to exempt stormwater discharges contaminated only by sediment, the court moved to step two of the Chevron test, which requires the court to determine if an agency’s interpretation is based on a permissible construction of the statute.[15]

Applying step two of Chevron, the Ninth Circuit held EPA’s interpretation of CWA section 402(l)(2), as amended by the Energy Policy Act, was an impermissible construction of the statute. EPA argued that “‘because sediment is the pollutant most commonly associated with construction activities,’ Congress must have meant to exempt all construction-related sediment when it made construction activities eligible for the exemption.”[16] However, the court concluded EPA’s interpretation of the amended section 402(l)(2) was arbitrary and capricious because the agency changed its position on what constitutes contamination.

In reaching a conclusion, the court determined that EPA did not adequately justify the reason for changing the agency’s position on the meaning of “contamination” under section 402(l)(2). In reviewing the statements made by EPA during the rulemaking process prior to the rulemaking under the Energy Policy Act, the court noted the agency previously recognized that stormwater polluted with sediment caused “serious water quality impacts”[17] and that oil and gas facilities had an obligation to apply for an NPDES permit for stormwater runoff contaminated only with sediment.[18] Because EPA’s change from its prior stance regarding the impact of stormwater discharge containing only sediment represented a “complete departure from its previous interpretation,” the court characterized EPA as having taken an “inconsistent and conflicting position” regarding whether NPDES permits were required for oil and gas construction activity runoff contaminated solely with sediment.[19] Consequently, the Ninth Circuit concluded that EPA’s regulation was arbitrary and capricious, and was therefore an impermissible construction of section 402(l)(2) of the CWA. In sum, the Ninth Circuit granted NRDC’s petition for review, vacated the challenged rule, and remanded the matter to EPA for further proceedings.

Judge Callahan dissented from the majority’s opinion. Although Judge Callahan agreed with the majority’s conclusion under Chevron step one, Judge Callahan disagreed with the majority’s conclusion that, under Chevron step two, the EPA rule was an impermissible interpretation of the statute. Pointing out that an “agency interpretation [that] contradicts a prior agency position is not fatal,”[20] Judge Callahan argued that EPA’s interpretation of the statute was a reasonable construction and that EPA included “a reasoned analysis” that adequately explained the agency’s reasons for the modification.[21] Additionally, Judge Callahan noted, “there appears to be no authority that would compel EPA to stay its hand until Congress specifically amended the ambiguous exemption” to expressly include “sediment.”[22] Therefore, Judge Callahan concluded EPA made a reasonable choice in adopting the revised interpretation and would have deferred to the agency’s decision.

[1] The other environmental groups involved were the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council.

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

[3] See id. § 1342.

[4] Under section 402(l) of the CWA,

[t]he Administrator shall not require a permit under this section . . . for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

Id. (emphasis added).

[5] Natural Res. Def. Council v. U.S. Envtl. Prot. Agency (NRDC I), 966 F.2d 1292, 1307 (9th Cir. 1992).

[6] See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,033-34 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122-124).

[7] Pub. L. No. 109-58, § 323, 119 Stat. 694 (codified as amended at 33 U.S.C. § 1362(34)).

[8] Natural Res. Def. Council v. U.S. Envtl. Prot. Agency (NRDC II), 526 F.3d 591, 599 (9th Cir. 2008) (quoting section 323 of the Energy Policy Act).

[9] Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations, or Transmission Facilities, 71 Fed. Reg. 894 (proposed Jan. 6, 2006) (codified at 40 C.F.R. pt. 122).According to EPA, “This proposed action would modify [NPDES] regulations to provide that certain storm water discharges from field activities, including construction, associated with oil and gas exploration, production, processing, or treatment operations, or transmission facilities would be exempt from [NPDES] permit requirements.” Id.

[10] Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities, 71 Fed. Reg. 33,628 (June 12, 2006) (codified at 40 C.F.R. pt. 122).

[11] 5 U.S.C. §§ 551-559, 701-06, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[12] Id. § 706(2)(A).

[13] 467 U.S. 837, 842-44 (1984).

[14] NRDC II, 526 F.3d 591, 603 (9th Cir. 2008); see also Chevron, 467 U.S. at 842-43.

[15] Chevron, 467 U.S. at 843.

[16] NRDC II, 526 F.3d at 606 (quoting Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations, or Transmission Facilities, 71 Fed. Reg. 33,628, 33,634 (Jun. 12, 2006) (codified at 40 C.F.R. pt. 122)).

[17] National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,033-34 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122, 123, 124).

[18] 40 C.F.R. § 122.26(c)(1)(iii)(C) (1990).

[19] NRDC II, 526 F.3d at 607.

[20] Smiley v. Citibank (S.D.), 517 U.S. 735, 742 (1996).

[21] NRDC II, 526 F.3d at 609.

[22] Id. at 610.

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

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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

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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

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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

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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

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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

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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

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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.