The Air Conditioning and Refrigeration Institute, joined by several other appliance manufacturing associations (collectively Appliance Associations), brought suit alleging that regulations adopted by California’s Energy Resources Conservation and Development Commission (Commission) were preempted by the federal Energy Policy and Conservation Act (EPCA).[1] The Ninth Circuit, reversing the district court, held that the Commission’s regulations were not preempted by the EPCA.

The regulations at issue required appliance manufacturers to submit information about their appliances to the Commission and to mark those appliances with energy performance data.[2] In addition to the substantive regulations, there were also procedural regulations requiring compliance with marking and disclosure requirements.[3] Appliance Associations argued that the California regulations were superseded by the EPCA which expressly preempts:

any State regulation insofar as such State regulation provides at any time for the disclosure of information with respect to any measure of energy consumption or water use of any covered product if . . . such State regulation requires testing or the use of any measure of energy consumption, water use, or energy descriptor in any manner other than that provided under [this title]; or . . . such State regulation requires disclosure of information with respect to the energy use, energy efficiency, or water use of any covered product other than information required under [this title.][4]

The district court held that the Commission’s regulations were preempted by the EPCA and therefore enjoined enforcement of the regulations.

The Ninth Circuit reviewed the preemption decision de novo and the district court’s injunction under an abuse of discretion standard. The Ninth Circuit first noted that only express preemption was at issue. The court then stated that it would use a two step process to determine express preemption. First, the court would look to the text of the EPCA to “identify the domain expressly pre-empted by that language.”[5] Second, it would probe congressional intent using the text itself, as well as the structure and purpose of the Act and legislative history. The Ninth Circuit began its preemption analysis with two fundamental presumptions: “That Congress did not intend to supplant state law,” and that preemptive provisions should be narrowly construed.[6] The court then went on to address the Appliance Associations’ arguments, beginning with whether the data submittal regulations were preempted.

The Commission’s data submittal regulations required appliance manufacturers to provide the Commission with the name of the manufacturer, the brand name and model number, as well as energy testing statistics for every appliance sold in California.[7] The Ninth Circuit compared the required information with the clause in the EPCA that expressly preempted state regulations that require “disclosure of information” related to energy use and efficiency.[8] The court then noted that the phrase, “disclosure of information” was used twice in the preemption clause and referred both times to disclosure to consumers at the point of sale.

The court pointed out that “disclosure of information” was not used in the EPCA to refer to requirements that manufacturers submit data to the Department of Energy (DOE), but “instead, Congress used the phrase ‘submit information or reports.’”[9] Finally, the Ninth Circuit stated that Congress, remembering the oil embargo of the early 1970s, intended through the EPCA to inform consumers of the energy efficiency of their appliances. Indeed, according to the court, the legislative history and subsequent amendments to the Act were concerned only with disparate state procedures for testing and labeling. Thus, the Ninth Circuit held that, based on the structure of the act and its legislative history, Congress only intended to preempt state disclosure to consumers, not disclosure to state agencies.

The Ninth Circuit next addressed Appliance Associations’ argument that federal law preempted the appliance-marking regulations adopted by the Commission.[10] Those regulations required appliances to be marked with the manufacturer’s name, the brand name, model number, and date of manufacture.[11] The court held that the EPCA only preempted provisions that provide “for the disclosure of information with respect to any measure of energy consumption or water use.”[12] The EPCA defined energy consumption to include energy use, energy efficiency, or “other measure of energy consumption.”[13] The Commission’s regulation did not require manufacturers to mark appliances with energy use or energy efficiency information, so the court focused on the remaining undefined phrase: “other measure of energy consumption.”[14] Using the canon of statutory construction ejusdem generis–meaning that an item in a list will be interpreted to be of the same type or class as the other items listed–the court held that “other measure of energy consumption” did not encompass the requirements of the Commission’s regulation because it would have broadened the terms preceding the phrase.[15]

The court next focused on the phrase “with respect to” to determine if that expanded the scope of preemption of state marking requirements.[16] The court noted that the relationship between what the Commission’s regulations required–such as labeling appliances with the brand name–and “measures of energy consumption” was “indirect, remote, and tenuous.”[17] Therefore, the court concluded that the marking requirements were not preempted by the EPCA.

The court also held that the section of the State’s regulations requiring compliance with federal marking requirements was not preempted by EPCA. Because the regulations required nothing more than compliance with federal rules, the court held that it was not “other than information required” under federal law.[18] The court noted that identical state requirements are not preempted because those regulations “merely provide[] another reason for manufacturers to comply with existing identical requirements under federal law.”[19]

Appliance Associations also objected to the Commission’s marking regulation that required marking of commercial and industrial equipment. The court noted that the preemption provision of EPCA,[20] the latest amendment to EPCA, gave DOE the power to preempt inconsistent state regulations. Specifically, preemption exists where the “[s]tate regulation requires disclosure of information . . . other than information required” under federal law.[21] The court held that because DOE had not established federal regulations, state regulations were not “other than required” under federal law. Thus, DOE’s inaction did not preempt the state regulation.

Finally, Appliance Associations argued that California’s procedural regulations for enforcing the State’s marking and information gathering regulations must be preempted because they unlawfully enforce federal requirements. The court noted that the substantive provisions could not be enforced without the procedural provisions. Thus, because the substantive provisions were not preempted, the procedural provisions must stand as well. In conclusion, the Ninth Circuit upheld the submission, marking, and procedural regulations and vacated the district court’s injunction against enforcement of those regulations.

In dissent, Judge Noonan took issue with the majority’s holding limiting “disclosure of information” to consumers. He suggested that disclosure is a broad term which necessarily encompasses the information submitted to the Commission. Moreover, he suggested that the phrase “other than information required under federal law” must apply to any state requirements in the absence of federal requirements. He argued that because DOE did not promulgate any requirements, requirements adopted by the Commission are necessarily “other than” the federal regulations.

[1] Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, 89 Stat. 871 (codified as amended in scattered sections of 42 U.S.C.).

[2] Cal. Code Regs. tit. 20, § 1607(b)-(d)(2) (2005).

[3] Id.

[4] 42 U.S.C. § 6297 (2000).

[5] Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n (ACRI), 397 F.3d 755, 758 (9th Cir. 2005) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 484) (1996) (internal quotations omitted).

[6] ACRI, 397 F.3d at 759 (Lohr, 518 U.S. at 485).

[7] Cal. Code Regs. tit. 20, § 1606 (2005).

[8] 42 U.S.C. § 6297(a)(1) (2000).

[9] ACRI, 397 F.3d at 760 (quoting 42 U.S.C. § 6296(d) (2000)).

[10] Cal Code Regs. tit. 20, § 1607(b)-(d)(2) (2005).

[11] Id.

[12] 42 U.S.C. § 6927(a)(1) (2000).

[13] Id. § 6291(8).

[14] ACRI, 397 F.3d at 764.

[15] Id.

[16] Id. at 764-65.

[17] Id. at 765 (quoting Californians For Safe & Competitive Dump Truck Transp. v. Mendonca 152 F.3d 1184, 1189 (9th Cir. 1998)) (internal quotations omitted).

[18] 42 U.S.C. § 6297(a)(1) (2000).

[19] ACRI, 397 F.3d at 765 (quoting Lohr, 518 U.S. at 495) (internal quotations omitted).

[20] Energy Policy and Conservation Act, 42 U.S.C. § 6316(a)-(b) (2000).

[21] Id. § 6297(a)(1)(b).

The Ninth Circuit reversed the district court’s holding that a temporary building moratorium amounted to a categorical taking, affirmed the district court’s conclusion that the Tahoe Regional Planning Agency’s (TRPA) adoption of a development plan was not the actionable cause of any takings that occurred while TRPA was enjoined from accepting applications, and affirmed the district court’s dismissal of some of plaintiffs’ claims because the statute of limitations had run.

The controversy in this case centered around land use regulations imposed by TRPA in the Lake Tahoe area of California and Nevada. In 1969, the states of California and Nevada enacted the Tahoe Regional Planning Compact (Compact), a bi-state compact approved by Congress, which formed TRPA to preserve Lake Tahoe and the surrounding basin. In August 1981, TRPA enacted Ordinance 81-5 in response to requirements set out in the 1980 amendments to the Compact. Ordinance 81-5 temporarily prohibited most construction on environmentally sensitive lands. The ordinance remained in effect from August 1981 until August 1983 (Period I). In August 1983, TRPA adopted a resolution that temporarily prohibited development of environmentally sensitive lands until a new regional land use policy was adopted. The resolution remained effective until April 1984 (Period II), when TRPA adopted a new regional land use plan under Ordinance 84-1. Subsequently, California sued TRPA, claiming Ordinance 84-1 would not sufficiently protect the Lake Tahoe Basin. The district court enjoined the ordinance, and the Ninth Circuit upheld the injunction on appeal. The injunction remained in place from June 1984 until TRPA adopted a new regional land use plan in 1987 (Period III). The 1987 plan remained in place at the time of the litigation, thus, Period IV runs from 1987 to the appeal. Property owners in California and Nevada filed suit in 1984 after TRPA adopted the regional plan, claiming several constitutional violations. Years of litigation disposed of most of the claims; the only claims at issue in this appeal involved the plaintiffs’ section 1983[1] takings claims.

On appeal, the Ninth Circuit first addressed the district court’s holding that the defendants were liable under section 1983 for a categorical taking of plaintiffs’ property during Periods I and II. The Ninth Circuit reversed and held that, under the Supreme Court’s holding in Lucas v. South Carolina Coastal Council,[2] the regulations in place during Periods I and II did not constitute a taking of plaintiffs’ land. The court examined Supreme Court takings jurisprudence and refused to “conceptually sever” the plaintiffs’ fee interest in the parcels of property for purposes of the takings analysis.[3]

Plaintiffs brought a facial challenge to Ordinance 81-5 and Resolution 83-21, as a categorical taking that denied the plaintiffs “all economically beneficial or productive use of [their] land.”[4] The plaintiffs asserted that for the purpose of the takings analysis, the court should “conceptually sever each plaintiff’s fee interest” into a “temporal dimension” and treat that segment as a “separate and distinct property interest[].”[5] Therefore, the “denominator” in the takings analysis would focus on the difference in value of the property prior to the regulations, as compared to the value while the regulations were in effect during Periods I and II. The plaintiffs asserted three arguments in support of their “conceptual severance” theory. The Ninth Circuit rejected all three of the plaintiffs’ arguments, recognizing that most modern case law rejected “conceptual severance” and held that the relevant property interests for the takings analysis were the whole parcels of property owned by the plaintiffs.

First, the Ninth Circuit examined a Supreme Court case that had “rejected conceptual severance in the temporal dimension of property rights.”[6] In Agins v. Tiburon,[7] the Supreme Court rejected a takings claim comparable to the Council’s. The plaintiffs in Agins argued that an abandoned condemnation proceeding by the City of Tiburon had destroyed the use of the land “during the pendency of the . . . proceedings.”[8] The Supreme Court rejected the claim because the plaintiff could sell or develop the property after the city abandoned the condemnation claim. Therefore, the Supreme Court focused on the temporary nature of the condemnation proceeding and refused to carve out a temporal “slice” of the parcel as a separate property interest.[9] The Ninth Circuit held that the Supreme Court’s decision in Agins was sufficiently similar to support a rejection of the plaintiffs’ argument for “conceptual severance” in this case.

The court next discarded plaintiffs’ second argument that the Supreme Court’s decision in First English Evangelical Lutheran Church v. County of Los Angeles (First English)[10] held that “conceptual severance of the temporal dimension of property interests is generally required.”[11] The Ninth Circuit flatly rejected this argument, holding that First English does not apply to temporary moratoria. The court concluded that First English addressed the issue of whether compensation was due to plaintiffs for a temporary taking. However, the “temporary” taking in First English was a regulatory taking eventually invalidated by the courts as unconstitutional. Therefore, temporary moratoria, like the ordinances enacted by TRPA, were not a “temporary taking” because they had not been invalidated as unconstitutional. The Ninth Circuit also concluded that the district court erred in holding that United States v. General Motors Corp.[12] supported conceptual severance of the plaintiffs’ property. The court stated that General Motors dealt with a physical occupation by the government of property, and physical occupation cases are analyzed under a different framework than regulatory takings cases.[13]

Having decided that the property interests to be considered were the whole parcels of property, the Ninth Circuit next considered whether Ordinance 81-5 and Resolution 83-21 had effected a categorical taking of plaintiffs’ property. The court held that the regulations in effect during Periods I and II were not a taking of plaintiffs’ land because the regulations did not deprive the land of all of its value or use. The court pointed out that the regulations did not make the land valueless because the regulations preserved the future developmental value of the property. Furthermore, the court recognized that even though the regulations might have had a negative effect on property values in the basin, the temporary moratorium on building did not wipe out all the value of the properties.

Plaintiffs’ second issue raised on appeal challenged the district court’s holding that TRPA’s adoption of the 1984 regional plan was “not the actionable cause of any deprivation of the plaintiffs’ Fifth and Fourteenth Amendment rights” during Period III.[14] According to the district court, TRPA could not be liable under section 1983 for any taking during Period III because the injunction prevented adoption of the 1984 Plan. The plaintiffs argued that the injunction was irrelevant to causation because TRPA implemented the 1984 plan, which amounted to a regulatory taking. The Ninth Circuit agreed with the district court, concurring that the injunction made it impossible for TRPA to implement the 1984 plan. As a result, the plan could not cause a regulatory taking.

Plaintiffs argued, in the alternative, that the adoption of the 1984 plan “effectuated a taking by causing the injunction to issue.”[15] The court disagreed, stating that TRPA could not have reasonably foreseen that the injunction would issue. In support, the record indicated that TRPA adopted the 1984 plan after receiving advice from its counsel that the plan would be given deference by the courts and therefore, would not be enjoined. In addition, the courts issued the injunction because the plan was not strict enough. If TRPA adopted a more lenient plan, in line with plaintiffs’ wishes, the injunction would have been even more likely to issue. As a result, the Ninth Circuit affirmed the district court’s holding that TRPA could not be held liable under section 1983 for actions in Period III.

Finally, the Ninth Circuit upheld the dismissal of the plaintiffs’ Period IV claims. The plaintiffs first added the Period IV claims in an amended complaint in 1991 to attack the 1987 plan. TRPA filed a motion to dismiss, asserting that the sixty-day statute of limitations set out in the Compact precluded the claims. The court rejected TRPA’s argument because section 1983 claims are not subject to the Compact’s special statute of limitations. However, the court held that the section 1983 claims were barred by the applicable statute of limitations for section 1983 claims in California and Nevada (one and two years respectively) and upheld the district court’s dismissal of those claims.

[1] Civil Rights Act of 1871, 42 U.S.C. § 1983 (1994).

[2] 505 U.S. 1003 (1992) (holding that a regulation that affects a total diminution in value of property is a categorical taking).

[3] 216 F.3d at 774.

[4] Lucas, 505 U.S. at 1015.

[5] 216 F.3d at 774.

[6] Id. at 775-76.

[7] 447 U.S. 255 (1980).

[8] Id. at 258 n.3.

[9] Id. at 263 n.9.

[10] 482 U.S. 304 (1987).

[11] 216 F.3d at 777.

[12] 323 U.S. 373 (1945).

[13] See Loretto v. Telepromptor Manhattan CATV Corp., 458 U.S. 419 (1982) (holding that any government action that is a physical occupation of property is a categorical taking).

[14] 216 F.3d at 782-83.

[15] Id. at 784.

Nine environmental activists and an environmental group brought a section 1983 civil rights action[1] against Humboldt County, the county sheriff, city police, and sheriff’s deputies and police officers. The plaintiffs alleged that the defendants’ use of pepper spray during three protests constituted excessive and unreasonable force in violation of their Fourth Amendment rights. After a mistrial, the Northern District of California entered judgment as a matter of law for the defendants. The plaintiffs appealed and the Ninth Circuit reversed, holding that the question of excessive force was for the jury and that disputed facts regarding the defendants’ knowledge and the reasonableness of the use of pepper spray precluded the district court’s finding that the defendants were entitled to qualified immunity as a matter of law.

In the fall of 1997, environmental activists staged three nonviolent protests against the logging of ancient redwood trees in the Headwaters Forest along California’s northern coast:[2] the Scotia Protest, the Bear Creek Protest, and the Riggs Protest.[3] During each protest, two to seven protesters linked themselves together using self-releasing lock-down devices known as “black bears.”[4] Although the protesters were not physically daunting and posed no immediate safety threat, the officers used pepper spray to arrest the protesters.[5] Defendants videotaped each of the arrests. The videotapes revealed that the officers did not attempt to negotiate with the protesters before applying the pepper spray. Sometimes the officers used Q-tips to apply the pepper spray to the eyelids of the protesters; other times the officers simply sprayed the pepper spray directly into the faces of the protestors. This occurred multiple times during each protest. The videos demonstrated that the protesters were in tremendous pain from the pepper spray. To ease the pain, the officers sprayed water on the protesters; however, the video showed that this actually caused more pain for at least one of the protesters. In two of the protests, the officers ultimately used a drill to dislodge the black bears from the protesters.

The protesters sued the officers under section 1983 for violation of their Fourth Amendment rights, claiming that use of the pepper spray was excessive and unreasonable force. Although none of the protesters sought medical treatment for physical injuries, the protesters sought damages for pain and emotional trauma, as well as punitive damages. After a nine-day trial, plaintiffs completed their case-in-chief. The district court granted qualified immunity as a matter of law to two of the officers and dismissed the case against them.[6] After six hours of deliberations, the jury was deadlocked with respect to the claims against the remaining officers. The district court refused to give a formal Allen charge[7] to the jury and declared a mistrial. The district court set a new trial date and took defendants’ renewed motion for judgment as a matter of law under submission. Eight weeks later, the district court granted the officers’ renewed motion for judgment as a matter of law.

Plaintiffs appealed and the Ninth Circuit reversed, holding that the district court erroneously granted judgment as a matter of law by failing to view the evidence in the light most favorable to the nonmoving party and by failing to resolve all inferences and conflicts in the evidence in plaintiffs’ favor. The Ninth Circuit then addressed the plaintiffs’ allegations of excessive force by balancing the intrusion on their individual Fourth Amendment interests against the countervailing governmental interests at stake.[8] This requires the court to balance: 1) the severity of the crime, 2) whether the suspects posed an immediate threat to the safety of the officers or others, 3) whether the suspects were actively resisting arrest by flight, and 4) any other exigent circumstances.

The Ninth Circuit disagreed with the district court’s characterization of the “quality of the intrusion.”[9] The district court found the use of pepper spray was minimal because it did not involve the use of deadly force or a significant level of physical force. The Ninth Circuit agreed that fact was relevant, but not dispositive, and reasoned that the evidence suggested that the protesters suffered excruciating pain when the officers applied the pepper spray to their eyelids. The court also disagreed with the district court’s emphasis on the government’s interests in speedy arrests, preventing organized lawlessness, ensuring safety of others, and deference to the officers’ split-second judgment. The Ninth Circuit held that the district court relied too heavily on the government’s interests and made inferences from the evidence against the nonmoving party, rather than in its favor. Particularly relevant to the court’s conclusion was the severity of the crime. Here, the only crime committed by the protesters was trespass, and the officers had alternative means available to effect the arrests. In short, the Ninth Circuit reversed the district court because the district court’s “conclusion that the officers did not use excessive force to effect the arrests of the protestors as a matter of law [was] untenable given the [conflicting] evidence at trial. [A] fair-minded jury could return a verdict for the plaintiffs on the evidence presented.”[10]

[1] Civil Rights Act of 1871, 42 U.S.C. § 1983 (1994).

[2] Timber harvesting in the Headwaters Forest has been the subject of numerous lawsuits. See, e.g., Coho Salmon v. Pac. Lumber Co., 61 F. Supp. 2d 1001 (N.D. Cal. 1999); Ecological Rights Found. v. Pac. Lumber Co. 61 F. Supp. 2d 1042 (N.D. Cal. 1999), rev’d, 230 F.3d 1141 (9th Cir. 2000). Located in Humboldt County, California, the Headwaters Forest is owned by Pacific Lumber Company (PALCO). In 1996, PALCO reached a land exchange agreement with California and the United States, establishing a forest reserve jointly managed by the federal and state governments and a harvest area. PALCO agreed to implement sustainable-yield harvesting techniques to satisfy political and legal pressures regarding several endangered species. Headwaters Forest is home to the marbled murrelet and the northern spotted owl, two species protected by the Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531-1544 (1994). See Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999) (discussing the ESA and the Headwaters Forest).

[3] The Scotia Protest took place at the headquarters of the Pacific Lumber Company. The Bear Creek Protest took place at a remote logging site on private property owned by Pacific Lumber Company, and the Riggs Protest took place in the Eureka, CA office of Congressman Frank Riggs.

[4] A black bear is a ten to twenty-five pound steel cylinder with a rod or post welded into the center. Protesters place their arms into the steel cylinders and attach steel bracelets worn around their wrists to the center rods in the black bears by using mountain climbers’ carabiners. Each black bear links protesters together. When in place, the devices completely immobilize their arms and prevent their separation. By simply using their hands to unclip the carabiners on the inside of the cylinder, the protesters can disengage themselves from the devices. However, if the protesters do not voluntarily agree to release themselves, the lock-down devices make it difficult for law enforcement officers to take the protesters into custody upon arrest.

[5] Before these three protests, law enforcement personnel used Makita grinders to cut through the steel and forcibly remove the black bears from the protesters. However, the officers claim to have had a growing concern about the danger of using the Makita grinders. In the summer of 1997, the Humboldt County Sheriff’s Department explored alternatives for affecting the arrest of protesters in lock-down devices–including the use of oleoresin capsicum aerosol (“OC” or “pepper spray”).

[6] The Ninth Circuit also held that the district court erred in granting qualified immunity to two of the officers because there were disputed historical facts concerning the reasonableness of the force used.

[7] Allen v. United States, 164 U.S. 492 (1896). An Allen charge is a supplemental jury instruction that a trial judge may give when a jury announces that it is unable to agree on a verdict. Without being coercive, an Allen charge urges jurors to keep trying to reach a verdict.

[8] Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121, 1133 (9th Cir. 2000) (citing Graham v. Conner, 490 U.S. 386, 396 (1989)).

[9] Id. at 1134.

[10] Id. at 1140 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

A citizens’ action group, the Hanford Downwinders Coalition (HDC), filed suit asking that the Agency for Toxic Substances and Disease Registry (ATSDR) begin health surveillance testing on the population surrounding Hanford Nuclear Reservation (Hanford). The Ninth Circuit held that the ATSDR health surveillance program is within the definition of “removal action” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and, therefore, a court challenge to the program is prohibited.

HDC claimed CERCLA mandated the implementation of a health surveillance program in the region surrounding Hanford. ATSDR moved for summary judgment, claiming the federal courts do not have jurisdiction over challenges to “removal actions” under CERCLA. The district court granted the motion. HDC appealed, claiming the health surveillance program was not a “removal action,” its action was not a “challenge,” and the health surveillance program was required at Hanford. Because CERCLA section 113(h)[1] protects only discretionary actions, HDC argued, it was inapplicable. In addition, HDC argued that its suit qualified for the citizen suit exception and that its due process rights had been violated.

Congress enacted CERCLA to facilitate cleanup of hazardous waste sites. Section 113(h) protects “removal or remedial actions” from the scope of federal jurisdiction. These actions–primarily ongoing cleanup activities–ensure cleanup efforts will not be delayed by litigation. ATSDR has the responsibility to ensure CERCLA’s health-related requirements are met. The decision to implement a health surveillance program for the area surrounding a hazardous waste site is at the discretion of the ATSDR Administrator.

The Ninth Circuit found that the plain language and purpose of CERCLA support the conclusion that ATDSR’s health surveillance activities are “removal actions.” “Removal actions” are those actions necessary to protect the public health from any fallout from the hazardous waste site. ATDSR’s health surveillance programs are a necessary part of protecting the public health at these sites. Overall, the classification of ATSDR’s health surveillance activities as “removal actions” is consistent with the remedial nature of CERCLA. Protection of the public health is one of the primary remedial goals of CERCLA.

HDC argued that even if ATSDR authority is protected, it was not challenging ATSDR activity. HDC’s claim was for injunctive relief. However, Ninth Circuit precedent supports the notion that any lawsuit directly related to cleanup goals constitutes a challenge. HDC then argued that the ATSDR health surveillance program is mandated. The Ninth Circuit held the plain language of CERCLA indicates the ATSDR Administrator is required to initiate a health surveillance program only when there is a significant increased health risk to the population surrounding a site; therefore, determination of the existence of such risk is at the Administrator’s discretion.

Section 113(h) contains an exception for citizen suits involving actions already taken by the government. The Ninth Circuit determined ATSDR’s activities at Hanford cannot be separated from the ongoing cleanup. Therefore, ATSDR’s action has not yet been taken. The Ninth Circuit affirmed the district court’s application of section 113(h) to HDC’s suit.

HDC then contended that application of section 113(h) violated due process. The Ninth Circuit reasoned that while it may be true this section may delay and even prevent plaintiffs from having their day in court, the court presumes Congress has balanced that factor against the need to expedite cleanup activities. The court held the best interests of the public are served by allowing CERCLA cleanups to proceed without even well-intentioned interruption. The decision of the district court was affirmed.

[1]42 U.S.C. § 9613(h) (1994

Two owners of property located in a forest use zone in Hood River County, Oregon sued the County in state and federal court alleging a regulatory taking of their property. The plaintiffs knew in 1983 when they bought their property that it was located in a forest use zone. However, they were unaware of a recent Land Use Board of Appeals (LUBA) decision holding that a forest use zone prohibits construction of dwellings unless they are necessary and accessory to forest use. Notice had been given to the previous owners that the County was in the process of amending its ordinance to comply with the mandatory interpretation. However, the plaintiffs never received actual notice.

In 1990 when the plaintiffs’ land use permit applications were denied, they exhausted administrative remedies and appealed to the Oregon Supreme Court. The plaintiffs alleged that the County improperly construed the zoning requirements, issued a decision unsupported by substantial evidence, and that violated the takings provision in the Oregon Constitution.[1] In their Petition for Review, the plaintiffs explicitly reserved a right to have their federal claims adjudicated in federal court. The Oregon Supreme Court affirmed the lower court’s decision rejecting all of the plaintiffs’ claims. In the meantime, however, the plaintiffs filed a section 1983 claim in federal court, alleging due process, equal protection, and federal takings violations against the County. The federal district court dismissed the plaintiffs’ taking claim, stating that because the Oregon Supreme Court had not yet issued a decision, all state appeals were not completed, and therefore the claim was unripe. The plaintiffs’ other claims were dismissed, and they appealed.

The Ninth Circuit first considered whether the plaintiffs were required to pursue other state court remedies before bringing an action to federal court. The U.S. Supreme Court had previously held that in order for a takings claim to be ripe, the government must have reached a final decision regarding the application of the regulations to the property and that the plaintiffs must have first sought compensation through the procedures provided by the state.[2]

The Ninth Circuit found that a final decision as to the applicability of the regulations to the plaintiffs’ property had been met, as the plaintiffs had filed for and appealed their applications for land use and conditional use permits. In considering whether the plaintiffs had sought all state remedies for compensation of their takings claim, the County argued that the plaintiffs should have brought their federal claim in state court. The Ninth Circuit disagreed, holding that the compensation requirement for ripeness is met if state law remedies had been pursued. It based this holding on both U.S. Supreme Court and Ninth Circuit cases that had reviewed ripeness of a federal takings claim without requiring a state action on the federal claim first.[3]

[1]Or. Const. art. I, § 18.

[2]WilliamsonCounty Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

[3] Id. at 196-97; Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1402, 1408 n.3 (9th Cir. 1989), cert denied, 494 U.S. 1016 (1990); Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161, 164 (9th Cir. 1993).

This case involves citizen suit enforcement under the Clean Water Act (CWA). In Caltrans, the Natural Resources Defense Council (NRDC) brought suit originally against the California Department of Transportation (Caltrans) and its director, James Van Loben Sels, alleging Caltrans’ noncompliance with their CWA permit requiring control of polluted stormwater runoff from roadways and maintenance yards in southern California. Because of Eleventh Amendment sovereign immunity constraints, NRDC dropped the claim against Caltrans, an “arm of the state,” leaving only the claim against Van Loben Sels for prospective injunctive relief intact. NRDC prevailed against Van Loben Sels, securing injunctive relief.

This is the first Ninth Circuit case concerning sovereign immunity with respect to federal statutes enacted under the Commerce Clause since the Supreme Court decided Seminole Tribe of Florida v. Florida.[1] In Seminole Tribe, the Supreme Court found that Congress has no duty to abrogate state sovereign immunity under the Indian Gaming Regulatory Act (IGRA).[2] IGRA, like the environmental statutes, was enacted pursuant to the Commerce Clause. This decision expressly overruled Pennsylvania v. Union Gas Co.,[3] which declared congressional abrogation of sovereign immunity under the Commerce Clause to be valid.

Additionally, Seminole Tribe found that because IGRA contained intricate remedial procedures, the Ex parte Young doctrine, which allows citizen suits against government officials for prospective injunctive relief, could not apply.[4] Justice Rehnquist, writing for the majority, attempted to quell environmental concerns in a footnote which indicated that the Seminole Tribe decision would not implicate other statues enacted under the Commerce Clause like the Clean Water Act.

While the result in Caltrans is undoubtedly an accurate reflection of the state of the law in the Ninth Circuit after Seminole Tribe, Judge O’Scannlain exhibited his wariness of this holding in a concurring opinion. Judge O’Scannlain was concerned about the “persistent erosion” of the Eleventh Amendment, and was “reassured” that the Supreme Court has granted certiorari in another Ninth Circuit case, Coeur d’Alene Tribe of Idaho v. Idaho.[5] Coeur d’Alene held, like Caltrans, that the Eleventh Amendment does not bar a claim for injunctive relief against state officials to enforce a statutory right.[6] Judge O’Scannlain’s discomfort may originate from the basis of the Ex parte Young doctrine, which was ostensibly crafted to atone for extreme constitutional violations perpetuated under the color of state law. Because environmental statutes do not readily fall into this category, the application of the Ex parte Young doctrine in these cases may not be appropriate. As Judge O’Scannlain declares, “whatever the result of the Supreme Court’s review, its timely attention to the delicate interaction between federal and state governments in the context of the Eleventh Amendment will be most welcome.”

[1]116 S.Ct. 1114 (1996).

[2] Id. at 1119.

[3]491 U.S. 1 (1989).

[4]116 S.Ct. at 1119.

[5]42 F.3d 1244 (9th Cir. 1994), reversed in part sub nom, Idaho v. Coeur d’Alene Tribe of Idaho, 117 S.Ct. 2028 (1997)

[6] Id. at 1251.