The Wilderness Society and Great Old Broads for Wilderness (collectively Wilderness Society) appealed from the district court’s denial of their motion to intervene as of right on the side of the government in a lawsuit that the United States brought against representatives of a citizens group and Elko County, Nevada. The Ninth Circuit held that Wilderness Society’s motion was timely even though the suit had been pending for eighteen months because Wilderness Society properly relied on the government to represent adequately their interests and acted quickly once they found out that the government had not.

Originally, the United States Forest Service (USFS) sued representatives of the citizens group to enjoin them from trespassing on USFS land. The group was trying to restore a road that ran adjacent to a river, populated by a federally protected fish. Elko County was joined because it claimed rights to the road. The parties participated in a confidential mediation and confidential settlement proceedings before they reached an agreement. Then, the court lifted the confidentiality order. Wilderness Society subsequently moved to intervene because they believed that the United States had agreed improperly not to contest Elko County’s right of way in exchange for continued management by USFS and for observation of environmental laws.

The Ninth Circuit found that, under the confidentiality order, the government did not give notice that it was not properly representing the interests of a group of citizens. To protect confidential negotiations from interventions, the court established that parties could rely on the government to adequately protect their interests until they have notice to the contrary. Therefore, the court held that the motion to intervene was timely and that Wilderness Society was entitled to intervene.

At issue in this case was an appeal by the Tahoe-Sierra Preservation Council, 243 California plaintiffs, and 9 Nevada plaintiffs (Association) of a district court’s dismissal of its case against the Tahoe Regional Planning Agency (TRPA). Specifically, the Association’s challenges arose from TRPA’s issuance of a regional plan in 1987 that formed an Individual Parcel Evaluation System (IPES). Each of the plaintiffs’ parcels received an IPES score in either 1987, 1988, or 1989 and no plaintiff was challenging their scores in this matter. The IPES system also established a pass-fail line based on a determined score. Any parcel receiving a score above the line was eligible to submit an application for development. The plan then allowed TRPA to choose three hundred applications each year to whom it would award development permits. The IPES system also included a variance for those parcels that had scores within ten percent of the pass-fail line. These parcels could be eligible to submit an application for development if they completed a water quality mitigation project or paid a mitigation fee.

The IPES system did not fix the score for the pass-fail line because the 1987 plan required TRPA to recalculate the line each year. In 1999, the Agency reset the line in Nevada for two affected counties and it retained the line in California for two affected counties. TRPA made these adjustments according to the formula set forth in the initial 1987 plan.

This litigation dates back to July 1, 1987. In 1991 and 1992, the Association filed complaints against the TRPA alleging takings of private property without just compensation because the 1987 plan prohibited development for property with scores below the IPES line. These complaints were consolidated by the district court and the court dismissed the complaints because they were barred by the statute of limitations. The Association continued to litigate the issue concerning the statute of limitations for six years. Finally, the district court applied the state personal injury statutes and dismissed the complaints as being time barred. The Ninth Circuit affirmed that dismissal.

The current action involved a new complaint from the Association, of which all individual plaintiffs were members. The Association asserted that the 1987 plan implemented between 1987 and the present caused unconstitutional takings. In addition, the Association alleged that the Agency’s 1999 decision to maintain the IPES pass-fail line was improper. With respect to this new complaint, the district court considered three groups of plaintiffs. The court first considered the property owners in stream environment zones (SEZ plaintiffs). With respect to these plaintiffs, the court found that their claim accrued in 1989 when they were notified of their land classification, an IPES score of zero. In addition, the court considered the property owners whose land fell below the IPES pass-fail line (IPES plaintiffs). With respect to these plaintiffs, the court found that their claims accrued in 1990 because the equation to adjust the line was fixed at the time. Therefore, the Association’s new complaint was barred by the statute of limitations. Finally, the court considered the plaintiffs whose land score fell within ten percent of the pass-fail line (Ten Percent plaintiffs). With respect to these plaintiffs, the court concluded that if their claim was a facial challenge it would be barred by the statute of limitations; however, if their claim was an as-applied challenge, then their claim would be unripe. The court dismissed the Association’s equal protection claim as time barred.

The Ninth Circuit affirmed the district court; however, it applied the doctrines of res judicata and ripeness to affirm the dismissal of the claims. The court explained that the doctrine of res judicata would apply if there was “‘(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.’”[1] Considering the first requirement, whether there was an identity of claims, the court explained that if “‘the same transactional nucleus of facts’”[2] governed the claims then there would be identity of claims. The court noted that in its earlier litigation the Association protested the SEZ plaintiffs’ land scores and the IPES pass-fail line, which were implemented pursuant to the 1987 plan, and which were the subject of the Association appeal. Therefore, the Association’s claims arose out of the same nucleus of facts and any of them could have been asserted in previous lawsuits. The court explained that the plan’s factual and legal parts were fixed in 1987 and that TRPA’s actions of line setting in 1999 were nondiscretionary and involved no new set of facts.

With respect to the final judgment on the merits requirement, the Ninth Circuit concluded that “a dismissal on statute of limitations grounds [was] a judgment on the merits.”[3] With respect to the requirement that there be privity between the parties, the court noted that several of the same parties were participants in this suit as had participated in the earlier suit. For example, the Association, thirty-three of the California plaintiffs, and three of the Nevada plaintiffs were the same. Concerning the other plaintiffs, the court explained that there must be a sufficiently close relationship between the initial plaintiffs and the current plaintiffs for there to be privity. The court explained that an organization or unincorporated association could create privity. The court found that the Association adequately represented the interests of its members, that the Association had the authority to bring claims on behalf of its members, and that the Association had defended vigorously for its members for a long period of time. In addition, the court explained that if

individual members of the Association were not bound by the result of the former litigation, the organization would be free to attack the judgment ad infinitum by arranging for successive actions by different sets of individual member plaintiffs, leaving [TRPA's] capacity to regulate the Tahoe properties perpetually in flux.[4]

Therefore, the Ninth Circuit held that the SEZ and IPES plaintiffs’ claims were barred by the doctrine of res judicata.

The court then considered the claims of the Ten Percent plaintiffs. The court explained that a facial challenge by these plaintiffs would be barred by res judicata because the claims involved the same mitigation program that was included in the 1987 plan, and therefore, the prior litigation could have addressed these claims. However, with respect to an as-applied challenge, the court found that the plaintiffs’ claims were not ripe because none of the member plaintiffs had attempted to pursue the mitigation options that were set forth in the plan for those parcels whose scores fell within ten percent of IPES pass-fail line. Thus, the court explained that it could not evaluate whether this restriction was unconstitutional without a final decision with the regulation applied. Therefore, the Ninth Circuit held that the Ten Percent plaintiffs’ claims were unripe.

[1] Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l. Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)).

[2] Id. at 1078 (quoting Stratosphere Litig. LLC. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)).

[3] Id. at 1081 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)).

[4] Id. at 1084.

The Bureau of Land Management (BLM), individual ranchers, and Owyhee Resource Area Permittees (ORAP), a cattle rancher organization, appealed the district court’s order of a permanent injunction requiring environmental review of sixty-eight grazing permits in accordance with the National Environmental Policy Act (NEPA),[1] scheduling the re-issuance of the permits, and creating interim grazing conditions in the Owyhee Resource Area. In 1997, after changes to BLM regulations, the agency issued sixty-eight grazing permits, relying on a 1981 Environmental Impact Statement (EIS) to comply with NEPA. Idaho Watersheds Project and Committee for Idaho’s High Desert sued BLM in district court. The district court found that this sixteen-year old EIS was inadequate to constitute the necessary “hard look” as required by NEPA[2] and imposed the injunction. On appeal to the Ninth Circuit, BLM, the individual ranchers, and ORAP contested issues surrounding the injunction and the court’s jurisdiction. The Ninth Circuit
found that it did have jurisdiction and affirmed the district court’s permanent injunction.

The Ninth Circuit first responded to the environmental groups’ challenge that the court did not have jurisdiction over the appeal because the partial summary judgment was not a final order. The court found that it had jurisdiction to hear the appeal because it could review the injunctive order and “28 U.S.C. § 1292(a)(1) confers jurisdiction not only over orders concerning injunctions, but also over matters inextricably bound up with the injunctive order.”[3] Because the district court made the necessary reviewability decisions before reaching the injunctive relief, those decisions were “inextricably bound up” with the injunctive relief and therefore were appealable.[4]

Second, the court addressed BLM’s and the ranchers’ claim that the district court erred in allowing judicial review because the environmental groups had failed to exhaust their administrative remedies as required by the Administrative Procedure Act (APA).[5] Under the APA,[6] the Ninth Circuit examined whether the BLM’s regulations “effectively render inoperative the challenged decision pending appeal.”[7] BLM regulations allowed parties to ask for a stay pending administrative appeal, but the court explained that if the stay was rejected then a federal court could review the decision. In addition, even if BLM stayed the decision, the Ninth Circuit found that two possible exceptions to the stay of grazing essentially did not “render inoperative” the decision.[8] First, if grazing had not been authorized in the year before the challenged year, then the challenged decision continued to be in effect despite the stay.[9] The court held that this was an obvious continuation of the decision. Second, if grazing had been authorized in the year before the challenged year, then grazing would continue at that previous year’s level.[10] The court found that, in this case, this second exception would allow for grazing practices that the BLM had already determined were harmful to the environment. Additionally, under the second exception to the stay provision these harmful practices would be allowed to continue for as long as the administrative appeal persisted. Thus, the second exception also did not make inoperative the actions that the environmental groups were challenging. Because the court found the facts of this case fit either of the two exceptions to the stay provision, the granting of a stay
would not “render inoperative” the decision, and exhaustion of administrative remedies was not required.

Third, an individual rancher, Petan, argued that the district court should not have reviewed the case because BLM’s decisions were not final. The Ninth Circuit found that this argument confused exhaustion and finality. Following the distinction made in Darby v. Cisneros [11] that a final decision involves a “definitive position . . . that inflicts an actual, concrete injury,” the court found that a “definitive position” was reached in the issuing of the sixty-eight permits.[12]

Fourth, the ranchers argued that one of the environmental groups waived its claims by filing and then dismissing its administrative appeal. Although the other environmental group did not appeal within the agency and therefore the decision in the case would not be affected by the Ninth Circuit’s decision, the court found that the filing and subsequent dismissal did not affect reviewability. Distinguishing another Ninth Circuit case, Acura of Bellevue v. Reich,[13] the court found that, because the appeal had been dismissed, the appeal did not “render[] the initial agency decision nonfinal for purposes of the APA.”[14]

Fifth, ten ranchers and ORAP argued that because the ranchers had administrative appeals pending on the issue of whether the permits were too restrictive when the environmental groups filed in federal court, the agency actions were not final under the APA.[15] However, the ranchers did not raise the argument below and therefore waived it. To avoid the waiver issue, they framed their argument as one of subject matter jurisdiction. They argued that without a final agency action, the court lacked jurisdiction.[16] The Ninth Circuit found that the absence of APA requirements, like finality, did not deprive the court of subject matter jurisdiction because 28 U.S.C. section 1331[17] grants subject matter jurisdiction, not the APA. Because it was not a question of subject matter jurisdiction, the ranchers had waived their finality argument.

Sixth, the ranchers contested the district court’s issuance of interim injunctive measures without an evidentiary hearing. The Ninth Circuit distinguished the case law that supported the ranchers’ argument[18] because the district court’s interim injunction was significantly different from other permanent injunctions that do require evidentiary hearings. The court found that, in this case, the district court implemented the injunctive measures suggested by BLM as opposed to those put forth by the environmental groups and the ranchers. Also, because the interim measures were temporary until a permanent injunction could be developed through extensive fact finding, an extensive evidentiary hearing for interim measures would have rendered their intermediary nature useless.

Finally, ORAP claimed that the district court made errors in its issuance of the injunction. The Ninth Circuit rejected the argument that the district court had incorrectly used a mandamus standard instead of a traditional injunctive standard because the remedy satisfied both standards. The court found that the district court had correctly applied the mandamus standard, deferring to BLM’s expertise in fashioning an injunction. In addition, the Ninth Circuit found that the district court had appropriately “balance[d] the equities” and given “due regard to the public interest” under the traditional injunction standard because the district court took a middle ground in designing a remedy.[19] Then the Ninth Circuit found that the district court made sufficient findings of fact and conclusions of law because its findings were clear enough for the Ninth Circuit to determine the basis of the decision. The Ninth Circuit found that the court had neither abused its discretion nor made the terms of the injunction too vague because the district court had allowed BLM to construct the terms of the injunction and it seemed clear on its face. Thus, the Ninth Circuit affirmed the district court’s “fair and balanced interim remedy.”[20]

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[2] See, e.g., Price Rd. Neighborhood Ass’n v. United States Dep’t of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997) (finding that “NEPA requires an agency to take a ‘hard look’ at the potential environmental consequences of proposed projects before taking action”).

[3] Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824 (9th Cir. 2002).

[4] Id.

[5] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[6] Id. § 704 (2000) (examining reviewability of agency actions).

[7] Idaho Watersheds Project, 307 F.3d at 825 (citing Darby v. Cisneros, 509 U.S. 137, 157 (1993)).

[8] Id.

[9] See 43 C.F.R. § 4160.3(d) (2002). The court mentions that the correct provision may be section 4160.3(e) but continues to reference section 4160.3(d), because the parties had cited that section in their briefs and both sections provide for continued grazing levels during a stay. Idaho Watersheds Project, 307 F.3d at 826.

[10] Idaho Watersheds Project, 307 F.3d at 826.

[11] 509 U.S. 137 (1993).

[12] Idaho Watersheds Project, 307 F.3d at 828.

[13] 90 F.3d 1403 (9th Cir. 1996).

[14] Idaho Watersheds Project, 307 F.3d at 829.

[15] 5 U.S.C. § 704 (2000).

[16] The ranchers based their claim on Ma v. Reno, 114 F.3d 128, 131 (9th Cir. 1997), but the Ninth Circuit discredited that case in a footnote. Idaho Watersheds Project, 307 F.3d at 830.

[17] 28 U.S.C. § 1331 (2000) (granting federal courts original jurisdiction over federal question claims).

[18] See, e.g., United States v. Microsoft, 253 F.3d 34, 101-03 (D.C. Cir. 2001) (holding that an evidentiary hearing is required unless waived or the facts are not in dispute).

[19] Idaho Watersheds Project, 307 F.3d at 833.

[20] Id. at 835.

At issue in this case was the operation of the New Melones Unit of the Central Valley Project (Project) by the Bureau of Reclamation (Bureau). The Project “is the largest federal water management project in the United States,”[1] and is located in the Central Valley Basin of California. The New Melones Unit of the project includes the New Melones Dam. The Bureau operates the “New Melones Unit pursuant to federal reclamation statutes as well as under four California water rights permits.”[2] The permits authorized the Bureau to use the water in the New Melones reservoir in a variety of ways. The authorized uses included “power generation, consumptive use . . . and the preservation of fish and wildlife.”[3] One of the water rights permits authorized the Bureau to release water to maintain local fisheries downstream of the dam, and to limit the salinity of the water downstream by complying with a salinity standard.

In an effort to comply with the Central Valley Project Improvement Act,[4] the Bureau decided to divert water from the New Melones Reservoir for fishery habitat restoration. Although the statute did not require the Bureau to divert water from the New Melones Unit, the “Bureau exercised its discretion to divert water from that source.”[5] The New Melones Interim Operations Plan, in operation at the time of this action, was adopted by the Bureau in 1999 and provided for “release of water from the New Melones Reservoir in April, May and October to supplement fishery flows.”[6]

Four plaintiffs–two state agencies (the Central Delta Water Agency (CDWA) and the South Delta Water Agency) and two private parties (R.C. Farms, Inc. and Alexander Hildebrand)–brought suit against the Bureau alleging that the Bureau’s operation of the New Melones Unit would fail to meet the salinity standard and would harm crops that depended on a source of suitable water to meet irrigation needs. The district court granted the Bureau’s motion for summary judgment, finding that all the plaintiffs with the exception of intervenor plaintiff Stockton East Water District lacked standing. In addition, the district court found that the plaintiffs’ claims were precluded. The district court subsequently allowed an interlocutory appeal.

The Ninth Circuit reversed the district court’s grant of defendant’s motion for summary judgment. The court considered the general principles of standing set forth by the United States Supreme Court in Lujan v. Defenders of Wildlife[7] in finding that the plaintiffs had standing. First, the “plaintiff[s] must have suffered an ‘injury in fact.’”[8] Second, there must be a causal connection between the plaintiffs’ injury and the defendant’s conduct. Third, the relief sought must redress the plaintiffs’ injury. The Ninth Circuit explained that at the summary judgment stage the plaintiff must raise “a genuine question of material fact as to the standing elements.”[9]

Concerning the standing requirements, the Ninth Circuit found that the second and third elements were satisfied because violation of the salinity standard would be traceable to the Bureau’s operation of the release of water and the plaintiffs would be redressed by the Bureau’s compliance with the salinity standard. The court then considered whether the plaintiffs satisfied the first element. With regard to the individual plaintiffs, the court explained that a threatened injury may be sufficient to confer standing and that the focus should be on the injury to the plaintiff not the injury to the environment. The court concluded that the risk of plaintiffs’ crops dying due to the Bureau’s failure to meet the salinity standard was a threat of injury sufficient to confer standing. The court noted that it was not relying on the doctrine of recurring harm. In addition, the court noted that the plaintiffs’ threatened injury was supported by modeling performed by the Bureau, which indicated that the salinity standard would be violated.

Concerning the agency plaintiffs, the Ninth Circuit explained that a public agency has standing if the challenged government action affects the performance of its duties. The court explained that the agency plaintiffs had a duty to provide high quality water for the areas downstream of the New Melones Dam. In finding that the agencies had standing, the court applied the three part associational standing test from Hunt v. Washington State Apple Advertising Commission.[10] In Hunt, the Supreme Court explained that an association has standing if “its members . . . have standing to sue[,] . . . the interests [the agency] seeks to protect are germane to the organization’s purpose[,] . . . [and] neither the claim asserted nor the relief requested requires” participation of a member of the association.[11] The Ninth Circuit concluded that the first part of the Hunt test was satisfied because the individual plaintiffs in the case had standing. In addition, the court found that the second part of the test was satisfied because the state agencies sought “to protect interests germane to their purposes,”[12] specifically that the agencies’ constituents would have water of acceptable salinity. Finally, the court explained that the third part of the Hunt test was satisfied because the court did not believe that the agencies’ constituents were required to be part of the suit. Thus, the Ninth Circuit found that the state agencies had standing to sue.

Concerning the district court’s finding that prior administrative and judicial proceedings regarding the New Melones Unit barred the plaintiffs’ current action, the Ninth Circuit reversed this finding and noted that it had authority to review the district court’s preclusion ruling. The Ninth Circuit explained that for claim preclusion to apply, the prior action must have involved “the same parties[,] . . . the same claim or cause of action . . . [, and must have ended with] a final judgment on the merits.”[13] The court noted that none of the prior actions that involved these parties involved the same claim or cause of action as the current case. The court explained that a prior action involved the same claim or cause of action when four factors were met, the most important factor being whether the actions arose “out of the same transactional nucleus of facts.”[14] The Ninth Circuit determined that none of the prior actions involved the same transactional nucleus of facts because the prior actions did not involve the New Melones Unit and the current operational plan’s releases of water. Therefore, the Ninth Circuit reversed the district court’s application of claim preclusion to the plaintiffs’ current action.

The Ninth Circuit also found that issue preclusion was inapplicable because the issues in prior actions and the current action were not identical. The prior action involved a challenge to release of water based on a different plan, whereas this action involved a challenge to releases of water pursuant to a plan adopted in 1999. Thus, the Ninth Circuit reversed the district court’s grant of defendant’s summary judgment motion and remanded the case.

The dissent argued that the CDWA had not demonstrated standing. The dissent contended that the CDWA had a “right to sufficient water supplied to maintain water quality downstream . . . [and] [t]hat that right [had] not been violated, and the government ha[d] no intention of violating it.”[15] Thus, the dissent explained that CDWA’s argument that in the future the government might breach its duty was “insufficient to show that ‘invasion of a legally protected interest’ is more than ‘conjectural’ or hypothetical.’”[16]

[1] Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002).

[2] Id.

[3] Id.

[4] Title XXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600, 4706-31. This statute provides that the Project “shall be operated in accordance with all obligations under state and federal law.” Cent. Delta Water Agency, 306 F.3d at 944. In addition, the statute requires the Bureau to develop a program to ensure sustainability of anadramous fish in Central Valley rivers and streams, manage 800,000 acre-feet of Project waters for fish and wildlife habitat restoration, and develop a plan to acquire water. Id. at 945. “In short, the Act demands that the Project implement a significant fish habitat protection program, but that it do so in accordance with the applicable state water use permits.” Id.

[5] Cent. Delta Water Agency, 306 F.3d at 945.

[6] Id.

[7] 504 U.S. 555 (1992).

[8] Cent. Delta Water Agency, 306 F.3d at 946 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

[9] Id. at 947 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998)).

[10] 432 U.S. 333 (1977).

[11] Cent. Delta Water Agency, 306 F.3d at 951 (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)).

[12] Id.

[13] Id. at 952.

[14] Id. (quoting Fund for Animals v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992)).

[15] Id. at 954 (Fernandez, J., dissenting).

[16] Id. (quoting Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

The Ocean Conservancy, in conjunction with several other environmental organizations (collectively Conservancy), brought suit to stop the National Marine Fisheries Service (NMFS) from conducting scientific research that would have resulted in the taking of endangered sea turtles, thereby violating the Endangered Species Act (ESA).[1] The district court denied a preliminary injunction and Conservancy appealed. After the appeal was dismissed, NMFS and an intervening fishery organization, the Hawaii Longline Association (HLA), moved for costs. The Ninth Circuit held that costs should not be awarded.

In an attempt to limit turtle bycatch, NMFS proposed to conduct research into methods other than traditional longline fishing. The research itself, however, was anticipated to result in the taking of turtles under the ESA.[2] The district court denied a preliminary injunction, but ordered NMFS to prepare an environmental impact statement (EIS) by July 31, 2003.

Conservancy appealed and the Ninth Circuit temporarily enjoined the research. Meanwhile, NMFS requested an extension of the EIS deadline. Because NMFS conceded that it could not conduct the challenged research before the completion of the EIS, it moved to dismiss the appeal as moot. In an unpublished opinion, the Ninth Circuit dismissed the appeal as moot, but issued instructions with its order. These instructions prohibited longline fishing research until the EIS and a new Biological Opinion were completed. The instructions also provided that if NMFS did issue a new research permit in accordance with the instructions, Conservancy would be permitted to amend its complaint. NMFS and HLA moved for costs under Federal Rule of Appellate Procedure 39(a)(1).[3]

The Ninth Circuit first pointed out that Rule 39(a)(1) awards costs unless the “law provides . . . otherwise.”[4] The court noted, by way of analogy, that the ESA has been found to override Federal Rule of Civil Procedure 54(d) allocating costs to the prevailing party. Thus, because the ESA awards costs “where appropriate” the Ninth Circuit held that the federal law should override Rule 39.[5] The Ninth Circuit determined that costs were not appropriate here because costs are appropriate only if the litigation is frivolous.[6] The court decided Conservancy’s litigation was not frivolous because it likely resulted in mooting the case, thereby suspending NMFS’s research until an EIS was completed. This suspension was a large part of the relief sought by the Conservancy.[7]

Moreover, the Ninth Circuit had dismissed the appeal with instructions essentially enjoining the research NMFS wished to pursue. These factors led the court to conclude that, although the appeal was dismissed, Conservancy appeared to be the prevailing party.[8] Thus, the Ninth Circuit denied NMFS’s motion for costs because Conservancy’s suit was not frivolous.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] Id. § 1532(19).

[3] Fed. R. App. P. 39(a)(1).

[4] Id.

[5] 16 U.S.C. § 1540(g)(4) (2000).

[6] Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094 (9th Cir. 1999).

[7] Ocean Conservancy, Inc. v. Nat’l Marine Fisheries Serv. 382 F.3d 1159, 1162 (9th Cir. 2004).

[8] Id.

Fishing and state water agency associations brought an action alleging that the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA)[1] by not carrying out the proper economic impact analysis before designating certain lands as critical habitats. Settlement of a related action involving the National Association of Homebuilders (NAHB) vacated NMFS’s final rule designating critical habitat, mooting the plaintiffs’ action. The plaintiffs moved for attorney fees under the fee-shifting provision of the ESA, and the district court granted the motion. The defendants appealed the attorney fee award. The Ninth Circuit affirmed the district court opinion awarding attorney’s fees under the ESA.

NMFS designated lands in California and the Pacific Northwest as critical habitats for endangered species. The plaintiffs alleged the defendants violated the ESA requirement that the Secretary of Commerce balance economic effects against potential benefits before designating areas as critical habitats.[2] The defendants settled the NAHB case, entering into a consent decree to vacate and remand its final rule regarding designation of critical habitats before the district court ruled on the plaintiff’s summary judgment motion. The consent decree rendered the plaintiffs’ case moot and the plaintiffs moved for attorney’s fees under the ESA’s fee-shifting provision, which allows a court to “award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.”[3] The district court granted the plaintiffs’ motion, awarding $304,530 in attorney’s fees and $13,211.26 in costs. The defendants appealed the award to the Ninth Circuit, which reviewed factual determinations for clear error and reviewed de novo the fee determination.

The defendants contended that the plaintiffs’ action was brought under the Administrative Procedure Act[4] because defendants had a discretionary duty to conduct an economic impact analysis, rather than a required duty under the ESA. The Ninth Circuit held that the plaintiffs’ action was brought under the ESA. Citing the Supreme Court’s decision in Bennett v. Spear,[5] the court ruled that the suit fell under the fee-shifting provision of the ESA because the statute, despite leaving some room for discretion, fundamentally required defendants to consider economic impact when designating critical habitats.[6] The plaintiffs alleged that the defendants did not perform their duty to conduct an adequate economic analysis under 16 U.S.C. § 1533(b)(2). In particular, the plaintiffs took issue with the defendants “incremental effects” analysis, in which the designation of a critical habitat was found to have no economic impact if the only discernible impact came from the listing of a species as endangered, rather than from the designation of a critical habitat. The plaintiffs asserted that their action was “a catalyst in bringing about Defendants’ changed interpretation of [§] 1533(b)(2) and the remand of the designations.”[7] Because the action was brought under the ESA, the Ninth Circuit held that the ESA’s fee-shifting provision was applicable to the parties in this case.

In applying the ESA’s fee-shifting provision, the Ninth Circuit considered the Supreme Court’s interpretation of that provision. According to the Supreme Court, the provision is inclusive, allowing fee awards for “partially prevailing parties–parties achieving some success, even if not major success.”[8] The defendants, however, relied on Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources (Buckhannon).[9]

In Buckhannon, the Supreme Court limited the definition of “prevailing party” in cases under the Fair Housing Amendments Act[10] and Americans with Disabilities Act[11] to those who had obtained some form of judicial relief, rather than the plaintiffs who had acted as a catalyst to bring about a desired result.[12] The Ninth Circuit rejected the defendants’ assertion that the Buckhannon decision precluded the plaintiffs’ use of the catalyst theory under the ESA’s fee-shifting provision because the plaintiffs were not a “prevailing party.” Relying on the Eleventh Circuit’s interpretation of Buckhannon in Loggerhead Turtle v. County Council of Volusia County,[13] the Ninth Circuit held that, although the catalyst theory could not be applied to statutes allowing fee shifting for a “prevailing party,” the catalyst theory could be used under statutes such as the ESA, which allow fee shifting “whenever the court determines such award is appropriate.”[14]

The Ninth Circuit gave three reasons for this determination: 1) “there [was] clear evidence” of Congressional intent to make fee shifting available under a “whenever . . . appropriate” statute when a plaintiff’s goals were advanced by an action; 2) Buckhannon focused on the “prevailing party” wording in the statutes the Supreme Court then considered, but did not mention “whenever . . . appropriate” statutes such as the ESA; and 3) the Supreme Court’s stated policy reasons for precluding the catalyst theory under “prevailing party” statutes included the desire to prevent defendants from making voluntary changes to avoid attorney fees, while such changes are the goal of citizen suits under the ESA, which allow only equitable relief.[15]

Finally, the Ninth Circuit held that the district court acted within its discretion in finding that the plaintiffs’ action acted as a catalyst in the settlement of the NAHB case, and did not award excessive or unreasonable fees to the plaintiffs. The defendants argued other events contributed to the voluntary remand of the Final Rule, and the district court’s finding was clearly erroneous. The Ninth Circuit, however, held it was reasonable for the district court to find the plaintiffs’ action had a causal relationship to the voluntary remand of the Final Rule. The defendants also argued that the fee award to the plaintiffs was “excessive and unreasonable.”[16] The Ninth Circuit, however, held that the plaintiffs’ time records adequately supported the fee amount awarded. In conclusion, the Ninth Circuit affirmed the attorney fees and costs awarded by the district court.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] Id. § 1533(b)(2).

[3] Id. § 1540(g)(4) (emphasis added).

[4] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[5] 520 U.S. 154, 172 (1997).

[6] 16 U.S.C. § 1533(b)(2) (2000).

[7] Ass’n of Cal. Water Agencies v. Evans, 386 F.3d 879, 884 (9th Cir. 2004).

[8] Ruckelshaus v. Sierra Club, 463 U.S. 680, 688 (1983) (emphasis in original).

[9] 532 U.S. 598 (2001).

[10] Fair Housing Amendments Act of 1988, 42 U.S.C §§ 3601, 3610-3614 (2000).

[11] Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12102, 12111-12117, 12131-12134, 12141-12150, 12161-12165, 12181-12189, 12201-12213, 47 U.S.C. 225 (2000).

[12] Id.; Buckhannonon, 532 U.S. at 601.

[13] 307 F.3d 1318 (11th Cir. 2002).

[14] 16 U.S.C. § 1540(g)(4) (2000); Loggerhead Turtle, 307 F.3d at 1325.

[15] Loggerhead Turtle, 307 F.3d at 1325-26.

[16] Evans, 386 F.3d at 887.

The Ninth Circuit ruled on a motion to intervene under Rule 24 of the Federal Rules of Civil Procedure. The applicants to intervene included a construction company and four national and local building trade associations (Applicants). They wished to join a suit filed by environmental groups (Plaintiffs) regarding a comprehensive land management plan developed by the city of San Diego in cooperation with the Department of the Interior and other federal agencies. Plaintiffs challenged the formation, approval, and implementation of the plan under the Endangered Species Act (ESA).[1] Applicants appealed the district court’s denial of their motion to intervene, arguing that they qualified as intervenors under Rule 24 because they were third-party beneficiaries to the land management plan.

The Ninth Circuit applied a four-part test under Rule 24(a), as set out in Northwest Forest Resource Council v. Glickman (NFRC).[2] Timeliness, the first requirement of the test, was easily met. Under the second requirement, an applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action. The court adopted a standard found in other circuits that “[c]ourts are to take all well-pleaded, nonconclusory allegations in the motion to intervene . . . and declarations supporting the motion as true absent sham, frivolity, or other objections.”[3] Based on Applicants’ submissions, the court concluded that because projects being developed by one of the Applicants were “in the pipeline for design and mitigation assurances and approval” under the land management plan at issue, this status created sufficient legally protectable interests to support intervention.[4] It was sufficient that these projects were included in an “approved negotiated project” list, even though the developer had not technically attained third-party beneficiary status under the relevant land management plan.[5]

The third requirement of the NFRC test is that the applicant’s interest must be substantially affected by the disposition of the action. The court concluded that invalidation or partial revocation of the land management plan as a result of the suit would impair or impede the protectable interest that Applicants had demonstrated. Under the final requirement of the NFRC test, the applicant’s interest must not be adequately represented by the existing parties in the lawsuit. A minimal showing by the prospective intervenor is sufficient, and the prospective intervenor need not anticipate trial strategy. Because the City stated that it would not represent Applicants’ interests, and because federal agencies cannot be expected to protect private interests, the court concluded that adequate representation was sufficiently in doubt. With all requirements of the NFRC test satisfied, the Ninth Circuit reversed the district court and held that Applicants were entitled to intervene as a matter of right.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[2] 82 F.3d 825, 836 (9th Cir. 1996).

[3] Southwest Ctr. for Biological Diversity, 268 F.3d 810, 820 (9th Cir. 2001).

[4] Id. at 821.

[5] Id. at 820.

The Ninth Circuit held that the Environmental Protection Agency (EPA) had no authority to promulgate a final rule which allowed importation of polychlorinated biphenyls (PCBs) into the United States for purposes of disposal, because the rule violated the Toxic Substances Control Act (TSCA).[1] The court also held that the Sierra Club was not required under Rule 15(c) of the Federal Rules of Appellate Procedure to serve notice under its petition for review on all of the commentators and witnesses of the informal rulemaking.

The court first examined the issue of notice under rule 15(c), which imposes upon a petitioner the obligation of serving “a copy [of the petition for review] on all parties who shall have been admitted to participate in the proceedings before the agency.”[2] In this case, more than three hundred groups, individuals, and organizations provided comments and input to EPA during the administrative rulemaking process. However, the court held that in an informal rulemaking, while any interested group or person may submit written or oral comments to the agency, no one is “admitted to participate in the proceedings,”[3] and therefore no one becomes a party in a formal administrative adjudication through commenting. Concomitantly, the court granted the Sierra Club’s motion to dispense with service of its petition on the individuals and groups who submitted their comments during the rulemaking.

The Ninth Circuit based its analysis of EPA’s authority to promulgate the rule allowing importation of PCBs for disposal on the Chevron[4] test. Under the rule in question, titled the “Import for Disposal Rule,” EPA stated “it is no longer necessary for persons who wish to import PCBs for disposal in accordance with this rule to apply for case-by-case exemptions under [TSCA] § 6(e)(3).”[5] Instead, under EPA’s rule importers must merely submit notice to EPA at least forty-five days prior to the date they intend to bring PCBs into the United States. If notice is provided in a timely and complete manner once per year, a party may “continue importing indefinitely without interruption.”[6]

The court found that the statutory language of TSCA showed clear congressional intent regarding the regulation, treatment, and disposal of PCBs, and that this intent was contrary to EPA’s rule. TSCA section 6(e)(3)(A)(i) categorically bans the manufacture of PCBs, stating that “no person may manufacture any polychlorinated biphenyl after two years from January 1, 1977.” TSCA section 2(7) defines the term “manufacture” to include “import[ing PCBs] into the customs territory of the United States.” Under section 6 of the statute, EPA only has the authority to promulgate regulations that prescribe methods of PCB disposal which are consistent with this ban.

There is only one exception to TSCA’s broad ban on the manufacture and importation of PCBs. Section 6(e)(3)(B) allows the EPA administrator to grant an exemption if the following conditions are met: (1) she determines that “an unreasonable risk of injury to health or environment would not result”, (2) the exemption does not last for more than one year, and (3) the party seeking the exemption makes a good faith effort to develop a substitute chemical. Therefore, the court held that EPA’s rule allowing parties to “continue importing [PCBs] indefinitely without interruption”[7] was contrary to Congress’s clear intent, as expressed in the unambiguous language of the statute. Not only was the one year limit of the exception clearly disregarded, but the rule also impermissibly obviated the requirements that the administrator find that “an unreasonable risk of injury to health or environment would not result” and that the applicant made a good faith effort to develop a substitute chemical. Therefore, despite EPA’s argument that it would be better able to protect the public from PCB contamination if it were allowed to import foreign PCB contaminants into the country, the court overturned the rule based on the first prong of the Chevron test.[8]

[1]15 U.S.C. §§ 2601-2618 (1994 & Supp. 1996).

[2]Fed. R. App. P. 15(c).

[3]Sierra Club v. United States EPA, 118 F.3d 1324, 1326 (9th Cir. 1997).

[4]Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under the two-step analytical approach adopted in Chevron, the first step is to determine whether Congress has directly spoken to the precise question at issue. Id. at 842. The court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43. However, if the statute is silent or ambiguous with respect to the specific issue, the analysis moves to step two of the analysis, and the question for the court is whether the agency’s interpretation is based on a permissible construction of the statute. Id. at 843.

[5]Disposal of Polychlorinated Biphenyls; Import for Disposal, 61 Fed. Reg. 11,096 (Mar. 18, 1996) (now codified at 40 C.F.R. § 761.93).

[6]Id. at 11,101.

[7]Id.

[8]Chevron, 467 U.S. at 842-43.