Category Archives: Standing and Ripeness

Churchill County v. Babbitt

Posted on by
Reply

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[4] Id.

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

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

[7] Id. at 560.

[8] Id.

[9] Id.

[10] Id.

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

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

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

[14] 42 U.S.C. § 4332(2)(C) (1994).

[15] Id.

[16] 150 F.3d at 1079.

[17] 42 U.S.C. § 4332(2)(C) (1994).

[18] 150 F.3d at 1079.

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

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

[21] 150 F.3d at 1080.

[22] Id.

[23] Id. at 1080-81.

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

[25] 150 F.3d at 1082.

Natural Resources Defense Council v. Abraham

Posted on by
Reply

The Department of Energy (DOE) appealed from a grant of summary judgment favoring Natural Resources Defense Council, who, along with several other environmental and tribal organizations (collectively NRDC), challenged a DOE order governing the disposal of radioactive waste generated at federal defense facilities. The Ninth Circuit held the challenge was not ripe for review.

In 1999, DOE issued Order 435.1, which was designed to ensure all radioactive waste would be managed to protect workers, as well as public health and the environment. In conjunction with the Radioactive Waste Management Manual and the DOE Implementation Guide, Order 435.1 established management responsibilities for varying levels of radioactive waste. NRDC asserted DOE would construe the order to reclassify high-level waste as waste incidental to reprocessing that required minimized handling protections, thus violating the Nuclear Waste Policy Act (NWPA).[1] The district court found the issue ripe and granted summary judgment to NRDC. The Ninth Circuit reviewed the ripeness decision de novo.

The Ninth Circuit pointed out that ripeness is dependent on the “fitness of the issues for judicial decision and . . . the hardship to the parties of withholding court consideration.”[2] The court then noted that, although the order was a final agency action, its ability to review NRDC’s concerns regarding differences between the definition of high-level waste in the order and the NWPA would be improved with “further factual development.”[3] The court acknowledged DOE could potentially exploit definitional differences in violation of the NWPA, but there was no indication the agency would do so. Indeed, the manual accompanying Order 435.1 expressly stated high-level waste would be treated in accordance with the NWPA. The Ninth Circuit concluded that because the DOE order did not require the interpretation asserted by NRDC, the issue was not fit for review.

The Ninth Circuit then noted legal hardship was lacking as well. The court pointed out the order did not change or create any legal rights or obligations, nor did it “force NRDC to modify its behavior ‘to avoid future adverse consequences.’”[4] The court concluded there was no realistic danger that NRDC would be adversely affected by waiting for DOE to construe the order and challenging it at that time. Because premature judicial review would interfere with the administrative process and because there was no indication DOE would construe the order in the manner alleged by NRDC, the Ninth Circuit held the issue was not ripe.

[1] Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10270 (2000).

[2] Natural Res. Def. Council v. Abraham, 388 F.3d 701, 705 (9th Cir. 2004) (citing Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003)).

[3] Id.

[4] Id. at 706 (citing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733-34 (1998)).

Cetacean Community v. Bush

Posted on by
Reply

The Cetacean Community (Cetaceans), through its self-appointed attorney, appealed dismissal of its complaint against the President of the United States and the Secretary of Defense. Cetaceans alleged violations of the Endangered Species Act (ESA),[1] the Marine Mammal Protection Act (MMPA),[2] and the National Environmental Policy Act (NEPA),[3] by the United States Navy. Cetaceans claimed that the Navy’s low frequency active sonar system seriously injured Cetaceans and interfered with their natural activities. The Ninth Circuit affirmed the district court’s dismissal.

Cetaceans include “all of the world’s whales, porpoises, and dolphins,”[4] on behalf of whom plaintiffs’ counsel filed this action to compel defendants to undertake various actions under the ESA, the MMPA, and NEPA. The defendants filed a motion to dismiss for both lack of subject matter jurisdiction[5] and failure to state a claim upon which relief can be granted.[6] The district court granted defendants’ motion without stating its basis for dismissal, and also held “that the Cetaceans lacked standing under” the various statutes.[7] Cetaceans appealed, and the Ninth Circuit reviewed the standing issue de novo.

Cetaceans argued that the Ninth Circuit was bound by its prior decision in Palila v. Hawaii Department of Land and Natural Resources (Palila IV),[8] granting legal status to an endangered bird,[9] and that statements to this effect amounted to “a holding that an endangered species has standing to sue to enforce the ESA.”[10] The defendants, however, argued that the court’s statements were merely dicta, not binding precedent for the Ninth Circuit. In the instant case, the district court ruled that the statements in Palila I were dicta,[11] and the Ninth Circuit agreed, noting that the plaintiffs in Palila IV included “the Sierra Club and others” who clearly had standing and “brought an action under the [ESA] on behalf of the Palila.”[12] As a result, the Ninth Circuit decided that its Palila IV ruling did not give standing to endangered species under the ESA and reviewed the issue of standing “as a matter of first impression.”[13]

The Ninth Circuit detailed the two-step process required by the Supreme Court to qualify for standing. First, under Article III of the Constitution, a plaintiff must have an injury in fact caused by the defendant that would be likely to be redressed by a favorable decision.[14] Second, if the Article III requirements are met, a court must examine whether the plaintiff has standing under a statute enacted by Congress.[15] The Ninth Circuit stated that “Article III does not prevent Congress from granting standing to an animal by statutorily authorizing a suit in its name,”[16] and went on to consider whether Congress did so in any of the statutes at issue in Cetaceans’ complaint: the Administrative Procedure Act (APA),[17] the ESA, the MMPA, and NEPA.

Under section 10(a) of the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”[18] The Ninth Circuit, noting that when a statute itself did not grant standing to a plaintiff, the statute may be read through the “gloss” of section 10(a) to give standing, considered the effects of section 10(a) in its analysis of the ESA, the MMPA, and NEPA. The ESA included a citizen-suit provision granting standing to “any person” filing a “civil suit on his own behalf” to address a “violation of any provision of this chapter or regulation.”[19] In defining the “person” who may file suit, the court pointed out that the ESA made no mention of species that the statute was intended to protect.[20] Reading the ESA through the gloss of APA section 10(a) did not change the outcome in the court’s view: while the APA granted standing to “persons” suffering ill effects of agency actions, the APA definition of “person” was narrow, excluding animals.[21] As a result, the Ninth Circuit held that the ESA did not grant standing to Cetaceans.

The MMPA requires a permit to “harass, hunt, capture, or kill” marine mammals.[22] Under the MMPA, both permit applicants and parties opposing such permits are given standing,[23] but the statute did not mention potential parties, “such as the Cetaceans,” attempting to “compel someone to apply for a . . . permit.”[24] The Ninth Circuit held that applying APA section 10(a) to the MMPA did not grant standing to Cetaceans, due to the limited definition of “person.” As a result, the Ninth Circuit held that Cetaceans lacked “standing to enforce the permit requirement of the MMPA.”[25]

Under NEPA, “major federal actions significantly affecting the quality of the human environment” require the preparation of an environmental impact statement (EIS).[26] The Ninth Circuit looked to the Supreme Court holding that NEPA itself did not grant standing for enforcement, but standing may be obtained through the APA.[27] The Ninth Circuit, however, held that it had “see[n] nothing in either NEPA or the APA that would permit us to hold that animals . . . have standing to bring suit on their own behalf.”[28]

Finally, Cetaceans argued that if members did not have standing, they were an “association” included in the APA definition of “person,”[29] and therefore entitled to standing. The Ninth Circuit disagreed, citing a Supreme Court holding that associational standing required that the “members would otherwise have standing to sue in their own right,”[30] and reiterating that individual animals did not have standing in this case. The court found no intent by Congress to include non-human groups under the term “association” in the APA. Finding no language in the ESA, the MMPA, NEPA, or the APA granting standing to animals, the Ninth Circuit held Cetaceans had no standing, and affirmed the district court ruling.

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

[2] Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1421h (2000).

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

[4] Cetacean Cmty. v. Bush (Cetacean II), 386 F.3d 1169, 1171 (9th Cir. 2004).

[5] Fed. R. Civ. P. 12(b)(1).

[6] Fed. R. Civ. P. 12(b)(6).

[7] Cetacean II, 386 F.3d at 1172 (citing Cetacean Cmty v. Bush (Cetacean I), 249 F. Supp. 2d 1206 (D. Haw. 2003)).

[8] 852 F.2d 1106 (9th Cir. 1988).

[9] Id. at 1107.

[10] Cetacean II, 386 F.3d at 1173.

[11] Cetacean I, 249 F. Supp. 2d at 1210.

[12] Palila IV, 852 F.2d at 1107 (emphasis added).

[13] Cetacean II, 386 F.3d at 1174.

[14] Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc. (Laidlaw), 528 U.S. 167, 180-81 (2000).

[15] City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004).

[16] Cetacean II, 386 F.3d at 1176.

[17] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[18] Id. § 702.

[19] Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(1)(A) (2000).

[20] Id. § 1532(13).

[21] 5 U.S.C. §§ 551(2), 701(b)(2) (2000).

[22] 16 U.S.C. §§ 1362(13), 1371(a)(1) (2000).

[23] Id. § 1374(d)(6).

[24] Cetacean II, 386 F.3d at 1178.

[25] Id.

[26] National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2000).

[27] Cetacean II, 386 F.3d at 1179 (citing Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 882 (1990)).

[28] Cetacean II, 386 F.3d at 1179.

[29] Administrative Procedure Act, 5 U.S.C. § 551(2) (2000).

[30] Laidlaw, 528 U.S. at 181.

Desert Citizens Against Pollution v. Bisson

Posted on by
Reply

Desert Citizens Against Pollution, Sierra Club, and Desert Protective Council (collectively “Desert Citizens”) challenged the Bureau of Land Management’s (BLM) decision to enter into a land exchange with Gold Fields Mining Corporation and its subsidiary, Arid Operations, Inc. (Gold Fields). Gold Fields intended to use the exchanged land as part of a regional landfill. Desert Citizens alleged that BLM failed to comply with section 206(b) of the Federal Land Policy and Management Act (FLPMA),[1] which requires that land exchanges be of equal value or made equal by cash payment, by relying on an outdated appraisal that undervalued the federal land. The district court dismissed the action, holding that Desert Citizens lacked standing and in the alternative, denied the request for a preliminary injunction because BLM was reasonable in relying on the appraisal.[2] The Ninth Circuit reversed, holding that Desert Citizens had established standing to bring the action and that BLM’s failure to consider the use of the federal land as a landfill in determining its value was arbitrary and capricious.

The land exchange at issue involved 1745 acres of federal land in Imperial County, California, appraised in 1994 at $610,914 and transferred to Gold Fields (the “selected lands”). In return, BLM acquired from Gold Fields 2642 acres of land appraised at $609,995 and $919 in cash. The private lands included land located in the Santa Rosa Mountains Wilderness and National Scenic Areas in Riverside County and the Little Chuckwalla Mountains Wilderness Area in Imperial County (the “offered lands”). In June 1994, the private firm of Nichols & Gaston appraised the selected lands, determining that the highest and best use was open space or mine support, which valued the land at $350 an acre. Two years before this appraisal, Gold Fields had submitted an application to construct the Mesquite Regional Landfill on land that included the federal selected lands and proposed the land exchange to BLM. After dismissal of its administrative appeal, Desert Citizens filed this action requesting the court set aside BLM’s Record of Decision (ROD) approving the land exchange and grant a preliminary injunction preventing BLM and Gold Fields from taking further steps to complete the land exchange based upon the ROD. The district court dismissed the case, holding that Desert Citizens lacked standing and alternatively, denied the request for a preliminary injunction. BLM and Gold Fields completed the land exchange the following day.

Reversing the district court, the Ninth Circuit determined that Desert Citizens did have standing to bring the action. Desert Citizens alleged that its members used the selected federal lands for aesthetic, recreational, and scientific purposes and that the exchange would prevent them from using and enjoying the lands in the future. The district court had determined that injury in fact was not established because Desert Citizens had alleged an environmental injury without alleging noncompliance with an environmental statute.[3] The Ninth Circuit found this reasoning “novel” and stated that “[n]othing in our jurisprudence requires citation of a so-called ‘environmental’ statute as a prerequisite to standing.”[4] The court also repudiated the district court’s analogy of Desert Citizens’s challenge based on the equal value provision of FLPMA to a general taxpayer injury of loss of federal money. Rather, reasoned the Ninth Circuit, the challenge was “an effort by land users to ensure appropriate federal guardianship of the public lands which they frequent.”[5] Thus, Desert Citizens established an injury in fact.

Desert Citizens also satisfied the causation and redressability prongs of Article III standing. The district court reasoned that Desert Citizens could not satisfy redressability because, regardless of the appraised value of the selected lands, the lands would ultimately be exchanged and Desert Citizens’s inability to use and enjoy the lands could not be redressed.[6] Emphasizing that it was reviewing a motion to dismiss and not summary judgment, the Ninth Circuit determined that the relief Desert Citizens requested–that the ROD be declared unlawful and set aside–would “redress their injuries because the particular exchange would not go through.”[7] The court stated that the redressability prong of Article III standing does not require Desert Citizens to establish that “adherence to the required procedures would necessarily change the agency’s ultimate decision.”[8]

The Ninth Circuit also determined that Desert Citizens was within the “zone of interests” of the equal value provisions of FLPMA section 206(b). FLPMA requires that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.”[9] The court determined that this policy and the stated goal of FLPMA to provide judicial review of public land adjudication decisions[10] encompassed Desert Citizens’s interest in “seeking to invalidate an allegedly unlawful transfer of federal land.”[11] The court also rejected BLM’s argument that section 206(d), which allows parties to a land exchange to settle valuation disputes through arbitration, reflects a congressional intent to “promote efficiency and preclude third party challenges to the equal value provisions.”[12] Therefore, the Ninth Circuit concluded that Desert Citizens satisfied the requirements of both Article III and prudential standing.

Additionally, the Ninth Circuit held that BLM’s reliance on the Nichols & Gaston appraisal of the selected lands was arbitrary and capricious. The district court had determined that BLM did not need to consider the use of the lands as a landfill in assessing its valuation because the appraiser and BLM “were under no obligation to consider and discredit unmeritorious uses” that were not legally, physically, or financially feasible.[13] FLPMA’s implementing regulations direct BLM to appraise exchange lands at market value, “based upon the ‘highest and best use’ of the appraised property, and estimate the market value ‘as if in private ownership and available for sale on the open market.’”[14] This does not require BLM to consider speculative uses, but the highest and best use determination must consider uses that are “reasonably probable.”

The Nichols & Gaston appraisal determined that the highest and best use of the selected lands was “open space” or “mine support.” The Ninth Circuit reasoned that BLM’s reliance on the Nichols & Gaston appraisal was not reasonable because prior to the appraisal, both the appraiser and BLM knew that the selected lands were expected to be used as a landfill and that Gold Fields had taken substantial steps in that direction. The existence of other landfill proposals in the area indicated a market for landfill development that made use of the selected lands as a landfill reasonably probable. In addition, the shelf life of the appraisal had expired long before BLM issued its ROD in 1996. Intervening events, such as Imperial County’s rezoning of the land from “open space” to “heavy manufacturing,” increased the likelihood that the selected lands would be used as a landfill. Therefore, the Ninth Circuit determined “[t]he BLM appraisal should have considered the landfill use as a possible highest and best use. Information available at the time of the appraisal made it reasonably probable that the property’s potential use as a landfill was physically possible, legally permissible, and financially feasible.”[15]

BLM’s failure to consider use of the selected lands as a landfill resulted in an improper valuation of the selected lands. As a comparison to the $350 an acre value of the selected lands as “open space,” the Ninth Circuit noted that a tax appraisal valued a 120 acre landfill site in Imperial County at $46,000 per acre. This evidence suggested that the value of the selected lands would be much higher if appraised as a landfill. Therefore, the Ninth Circuit held that BLM’s action was arbitrary and capricious and that the land exchange must be set aside because the ROD did not consider landfill use as a potential highest and best use, even though this was the intended use of the selected lands by Gold Fields. Further, the court determined that “BLM and Gold Fields acted at their peril in transferring the land while on notice of the pendency of a suit seeking an injunction against them.”[16] Despite the completion of the exchange, the court set it aside.

[1] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, 1716(b) (1994 & Supp. III 1997).

[2] Desert Citizens Against Pollution v. Bisson (Desert Citizens I), 954 F. Supp. 1430, 1431 (S.D. Cal. 1997).

[3] Id. at 1435.

[4] Desert Citizens Against Pollution v. Bisson (Desert Citizens II), 231 F.3d 1172, 1177 (9th Cir. 2000).

[5] Id.

[6] Desert Citizens I, 954 F. Supp. at 1436.

[7] Desert Citizens II, 231 F.3d at 1178.

[8] Id. at 1179.

[9] 43 U.S.C. § 1701(a)(8) (1994).

[10] Id. § 1701(a)(6).

[11] Desert Citizens II, 231 F.3d at 1179.

[12] Id.

[13] Desert Citizens I, 954 F. Supp. 1430, 1438 (S.D. Cal. 1997).

[14] Desert Citizens II, 231 F.3d at 1181 (quoting 43 C.F.R. § 2201.3-2(a) (2000)).

[15] Id. at 1184.

[16] Id. at 1187.

Pritikin v. Department of Energy

Posted on by
Reply

Pritikin appealed the district court’s award of summary judgment to the Department of Energy (DOE). Pritkin had filed a citizen suit alleging that the DOE had violated provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[1] and the Administrative Procedure Act (APA).[2] Pritikin sought a declaration that, under CERCLA, DOE was required to fund a medical monitoring program by the Agency for Toxic Substances and Disease Registry (ATSDR) to screen the population near the Hanford Nuclear Reservation.[3] Pritikin also sought to enjoin the DOE to include the Hanford medical monitoring costs in any future budget requests, reallocate current funds towards medical monitoring, and report to Congress DOE’s failure to fund the ATSDR medical monitoring program in compliance with CERCLA. The district court found that it lacked subject matter jurisdiction because Pritikin did not meet the necessary requirements under CERCLA for bringing a citizen’s suit[4] and because there was no final agency decision that could be appealed. The Ninth Circuit affirmed but relied on an alternative line of reasoning, finding that Pritikin lacked constitutional standing.[5]

The Ninth Circuit, citing Lujan v. Defenders of Wildlife (Defenders),[6] outlined the three criteria for constitutional standing: injury, causation, and redressability. DOE did not challenge the injury prong of the standing test. Pritikin was born near the Hanford facility and lived there for ten years. Her in utero and childhood exposure to Hanford’s hazardous substances damaged her thyroid gland and endocrine system. The court agreed that Pritikin was “qualified to participate in ATSDR’s medical monitoring program.”[7] The court recognized that Pritikin’s inability to receive the medical screening proscribed by the Hanford monitoring program was a “cognizable injury.”[8]

However, the Ninth Circuit found that Pritikin failed to satisfy the latter two requirements for constitutional standing. With respect to causation, Pritikin alleged that DOE did not take the necessary steps to “eliminate or substantially mitigate the significant risk to human health”[9] because DOE had an affirmative duty to provide the necessary medical monitoring funds to ATSDR. The court rejected Pritikin’s reasoning, relying on Simon v. Eastern Kentucky Welfare Rights Organization,[10] Duquesne Light Co. v. EPA,[11] and Area Transportation, Inc. v. Ettinger[12] to determine that Pritikin’s injuries were caused by the independent action of a third party. The court suggested that ATSDR was the appropriate defendant for Pritikin’s suit because ATSDR is the “party with the statutory power and duty to act.”[13] The court also noted that ATSDR is not required to wait for DOE funding before acting because ATSDR can seek alternative funds. The court found that Pritikin’s claim that ATSDR could not conduct medical monitoring without DOE funding was “highly speculative and dependent on uncertain actions by [ATDSR]“[14] and not directly traceable to DOE inaction.

With respect to the requirement of redressability, the Ninth Circuit also found Pritikin’s claim deficient. The court specifically addressed the issue of whether requiring DOE to fund the ATSDR medical monitoring program would result in its implementation. In its analysis, the court returned to Defenders to assess Pritikin’s ability to demonstrate redressability. In Defenders, the Supreme Court determined that because other federal agencies were not bound by the Secretary’s regulation, compelling the Secretary of the Interior to act would not force those agencies to engage in consultation.[15] Therefore, the plaintiffs who challenged the Secretary’s failure to act lacked standing. Pritikin distinguished her case from Defenders by noting that unlike the agencies in Defenders, ATSDR was required by statute to act once it found a “significant increased risk of adverse health effects,”[16] and that funding by DOE would force implementation of the medical monitoring program. The Ninth Circuit rejected Pritikin’s characterization, noting that even if DOE provided the necessary funding, ATSDR could still refuse to conduct the medical monitoring.

Next, Pritikin argued that Defenders was distinguishable because in her case DOE was liable for the full cost of the medical monitoring, while in Defenders the Department of the Interior was liable only for a fraction of the costs of the projects in question. The Ninth Circuit rejected this argument as well, pointing out that ATSDR is free to seek alternative sources of funding. Finally, Pritikin alleged that her claim challenged a particular agency action while the plaintiffs in Defenders challenged a general agency action. The court again dismissed her argument, noting that the specificity of the challenged action does not determine redressibility.

At the end of the opinion, the Ninth Circuit specifically noted that it was not addressing the question of “whether Pritikin would have standing if ATSDR were named as a party in this action.”[17]

[1] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (2000).

[2] 5 U.S.C. § 702 (creating right to judicial review for person who has suffered a legal wrong because of agency action).

[3] 42 U.S.C. § 9604(i)(9) specifies that once a “significant increased risk of adverse health effects in humans from exposure to hazardous substances” is apparent, ATSDR must implement a medical monitoring program to screen the population at risk. According to this court opinion, ATSDR and DOE had entered into formal agreements to allocate funding for the ATSDR medical monitoring program. When DOE headquarters transferred its Hanford funding responsibility to a field office, that office refused to fund the ATSDR medical monitoring program.

[4] 42 U.S.C. § 9659(a)(1) (requiring that the person sued be in violation of a “requirement”); 42 U.S.C. § 9659 (a)(2) (requiring failure of agency to perform a “duty”).

[5] Interestingly, neither party raised the issue of standing in the district court.

[6] 504 U.S. 555, 560-61 (1992) (establishing elements necessary for constitutional standing).

[7] Pritikin v. Dep’t of Energy, 254 F.3d 791, 794 (9th Cir. 2001), cert. denied, 70 U.S.L.W. 3515 (2002).

[8] Id. at 797.

[9] Pritikin, 254 F.3d at 797 (quoting 42 U.S.C. § 9604(i)(11) (2000)).

[10] 426 U.S. 26 (1976). The Ninth Circuit summarized this case as follows: Indigents unsuccessfully alleged that a combined agency ruling to provide tax benefits to nonprofit hospitals offering indigents medical care only on an emergency basis forced hospitals to deny them care. The Supreme Court found the indigents’ claim to be too “speculative” because there was no evidence that the ruling issued by the agencies had forced hospitals to deny indigents medical care. Therefore, the indigents lacked standing. Pritikin, 254 F.3d at 798.

[11] 166 F.3d 609 (3d Cir. 1999). The Ninth Circuit summarized this case as follows: A utility company unsuccessfully challenged EPA’s approval of a state’s implementation of the Clean Air Act because the state’s implementation led to a loss of emission reduction credits. The Third Circuit found the utility company lacked standing because EPA did not have control over how the state had defined its implementation plan. Pritikin, 254 F.3d at 798.

[12] 219 F.3d 671 (7th Cir. 2000). The Ninth Circuit summarized this case as follows: A school bus service unsuccessfully challenged an agency’s decision not to force a rival bus service to disgorge federal grants illegally received on the basis that the funds would give the rival bus service a competitive advantage. The Seventh Circuit found that it was too speculative to find a causal connection between the “less harsh sanctions” and the “competitive injury” alleged. Pritikin, 254 F.3d at 799.

[13] Id. at 798.

[14] Area Transp. Inc., 219 F.3d at 673.

[15] Defenders, 504 U.S. 555, 571 (1992).

[16] Pritikin, 254 F.3d at 800.

[17] Id. at 801 n.11.

Hall v. Norton

Posted on by
Reply

The Ninth Circuit ruled on requirements for standing under the National Environmental Policy Act (NEPA)[1] in a case concerning an exchange of public land in the Las Vegas Valley. In 1996, the Bureau of Land Management (BLM) entered into a non-binding agreement with Del Webb, a private developer, regarding an exchange of 4,975 acres of federal land for private land considered by the agency to be environmentally sensitive. Del Webb planned to build 11,200 homes on the land it received from BLM. In compliance with NEPA, the BLM prepared an environmental assessment (EA). The EA acknowledged that the Las Vegas Valley was a nonattainment area under the Clean Air Act (CAA)[2] for carbon monoxide and particulate matter, and the EA included estimates of the additional emissions the Del Webb development would generate. Based on the EA, BLM returned a finding of no significant impact (FONSI), allowing the land exchange to go forward.

Hall filed suit in federal district court alleging that BLM failed to comply with NEPA and that the exchange would violate the conformity provision of the CAA.[3] BLM moved for summary judgment. In response to BLM’s motion, Hall submitted an affidavit averring that he resided in the Las Vegas Valley, that since moving to the area he had developed a persistent cough due to dust and air pollution, that previous BLM land exchanges and private development had resulted in increased emissions, and that he regularly traveled throughout areas of the valley that had registered unsafe levels of air pollution. Because land exchanges are exempted from conformity challenges by EPA regulation,[4] the district court dismissed the CAA claim for lack of jurisdiction. Nationally applicable regulations can be challenged only in the Court of Appeals for the District of Columbia.[5] The district court dismissed Hall’s NEPA claim for lack of standing because Hall failed to provide specific facts linking his respiratory ailment to the land to be exchanged. Hall appealed both claims.

On review, the Ninth Circuit concluded that Hall had standing for the following reasons. First, “evidence of a credible threat to the plaintiff’s physical well-being from airborne pollutants falls well within the range of injuries to cognizable interests that may confer standing.”[6] Second, because the rights Hall asserted under NEPA were procedural rights, the court’s inquiry into the imminence of threatened harm was “less demanding.”[7] Hall did not have to show that further study and analysis by the government would have resulted in a different conclusion. Third, with regard to the causation issue, the court found that Hall needed only to establish the reasonable probability that the challenged action would threaten his concrete interest, a degree of certainty less than that required to succeed on the merits of a tort claim. Finally, Hall’s claim did not rely on conjecture about the behavior of other parties or on conjecture about whether Del Webb’s actions would worsen pollutant levels in the valley. For these reasons, in light of his affidavit, Hall’s claim that he would be affected negatively by the land exchange was reasonable.

The Ninth Circuit reversed the district court in part, holding that Hall had standing for his NEPA claim, and affirmed in part, holding that the district court lacked subject matter jurisdiction over the CAA claim.

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

[2] 42 U.S.C. §§ 7401-7671q (2000).

[3] Id. § 7506(c)(1).

[4] 40 C.F.R. § 93.153(c)(2)(xiv) (2001).

[5] 42 U.S.C. § 7607(b)(1).

[6] Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001).

[7] Id.

Central Delta Water Agency v. Bureau of Reclamation

Posted on by
Reply

State agencies and local farmers (Delta parties) sued the United States Bureau of Reclamation and several administrative officials (the Bureau) challenging the Bureau’s plan to release reservoir water in order to comply with federal fish habitat restoration requirements. They claimed that the Bureau was violating the 1992 Central Valley Project Improvement Act (CVPIA)[1] by releasing water from the New Melones Unit Reservoir under the Central Valley Project (the Project) that would eventually result in downstream salinity levels that exceed the state Vernalis Salinity Standard (the Standard). The Ninth Circuit agreed with the district court’s determination that there was no genuine issue of material fact as to whether the Bureau would comply with the Vernalis Salinity Standard in the foreseeable future. Therefore, it affirmed the district court’s denial of the Delta parties’ motion for summary judgment and its grant of the Bureau’s motion for summary judgment.

The Project includes the Sacramento and San Joaquin Rivers, which meet at the Sacramento-San Joaquin Delta, mix together, and flow into San Francisco Bay. The Bureau, a division of the Department of Interior, operates the Project and distributes water resources for beneficial uses according to permits it holds from the California State Resource Board (State Board). The Bureau must also comply with the CVPIA, which “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.”[2] One state permit standard–the Vernalis Salinity Standard–requires the Bureau not to allow electrical conductivity measurement exceeding 0.7-1.0 mmhos/cm depending on the time of year.

In 1997, the Bureau adopted an operation plan for releasing water from the New Melones Unit, a reservoir in the San Joaquin River system. This plan included water releases aimed at maintaining wildlife habitats but that were projected to result in violations of the Vernalis Salinity Standard ten percent of the time over seventy-one years. However, by deviating from the plan when necessary the Bureau had thus far avoided exceeding the Standard since 1994.

The Delta parties sued the Bureau arguing that it should not be allowed, pursuant to the CVPIA, to release water from the New Melones Unit[3] or purchase water to supplement the water dedicated to fish and wildlife[4] unless it dedicated sufficient water to ensure that it did not exceed the Vernalis Salinity Standard. The Delta parties argued that the plan for the New Melones Unit would decrease water flow during irrigation months to the point where the salinity level would damage crops irrigated downstream in the region of Vernalis.

At first, the district court held that the Delta parties lacked standing because the Bureau had not violated the standard since 1994, but the Ninth Circuit reversed holding that the Bureau’s projections created sufficient risk of harm to confer standing.[5] The district court then held on remand that the Delta parties could not show “within reasonable scientific certainty” that the Bureau would exceed the Standard and, therefore, it granted the Bureau’s motion for summary judgment.[6]

The Ninth Circuit reviewed the district court’s decision de novo[7] and sought to “‘determine, viewing the evidence in the light most favorable to . . . the nonmoving party, whether there [were] any genuine issues of material fact and whether the district court correctly applied the substantive law.’”[8] First, the Court rejected the Delta parties’ argument that the Ninth Circuit’s determination that they had standing in Central Delta I removed the Delta parties’ obligation to show an actual violation of the CVPIA, stating “our decision on standing does not obviate the need to address the merits of the litigation.”[9] Second, the Court concluded that the Bureau was not required under the CVPIA to “dedicate and allocate a specific amount of water to meet the Vernalis Salinity Standard before it may do anything else.”[10] The Delta parties had seized on the language of § 3406(b)(2) of the CVPIA.[11] That section directs the Secretary to manage 800,000 acre-feet of  “Central Valley Project yield” and then defines that yield as “… the delivery capability of the Central Valley Project during the 1928-1934 drought period after fishery, water quality, and other flow and operational requirements . . . have been met.[12] However, the Court determined that this was “merely a definition”[13] and that the clear language of the act “does not direct the Bureau to allocate a specific amount of water to pre-CVPIA purposes prior to exercising its discretion to achieve its other purposes.”[14] The Bureau cannot violate the Vernalis Salinity Standard, but Congress left it up to the agency to determine “how to comply with those standards.”[15] Furthermore, given that the Bureau had not violated that standard since 1994 the court noted that the Bureau’s discretion “seem[ed] to be working just fine.”[16]

The court then held that the Delta parties had “failed to raise a genuine issue of material fact as to whether the Bureau [would] comply with the standard in the foreseeable future.”[17] According to the court, there were two major flaws in the Delta parties’ reliance on the model in the Bureau’s plan for the New Melones Unit: (1) the model was based on hypothetical water conditions that would “undoubtedly and frequently change”[18]; and (2) the ten percent violation estimate assumed that the Bureau would not modify its operation of the Project as conditions changed. The Bureau could modify its operation, had done so in the past, and there was “nothing in the record [suggesting] that it will not continue to do so in the future.”[19]

In conclusion, the Ninth Circuit affirmed the district court’s ruling and determined that the Delta parties failed to raise a genuine issue of material fact as to whether the Bureau would violate the Vernalis Salinity Standard. The Bureau’s projection that it might violate the standard in the future was not enough considering that Congress in the CVPIA gave the Bureau discretion to deviate from its plan to meet standards and the Bureau had done so effectively for more than a decade. Therefore, the Court ruled that the Delta parties did not have a right to injunctive relief and affirmed the district court’s opinion.

[1] Central Valley Project Improvement Act § 3406(b), Title XXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. 102-575, 106 Stat. 4600, 4714 (1992).

[2] Central Delta Water Agency v. United States (Central Delta I), 306 F.3d 938, 945 (9th Cir. 2002) (summarizing the CVPIA); Central Valley Project Improvement Ac §§ 3402, 3406(b) (1992).

[3] Central Valley Project Improvement Act § 3406(b)(2) (1992).

[4] Id. § 3406(b)(3).

[5] Central Delta I, 306 F.3d at 950.

[6] Cent. Valley Water Agency v. United States, 327 F. Supp. 2d 1180, 1218 (E.D. Cal. 2004).

[7] Magana v. N. Mariana Islands, 107 F.3d 1436, 1438 (9th Cir. 1997).

[8] Cent. Delta Water Agency v. Bureau of Reclamation (Central Delta II), 452 F.3d 1021, 1025 (9th Cir. 2006) (quoting Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

[9] Id.

[10] Id. at 1026.

[11] Central Valley Project Improvement Act § 3406(b)(2).

[12] Id. (emphasis added).

[13] Central Delta II, 452 F.3d at 1026.

[14] Id.

[15] Id. (emphasis in original).

[16] Id.

[17] Id.

[18] Central Delta II, 452 F.3d at 1026.

[19] Id. at 1027.

Ashley Creek Phosphate Co. v. Norton

Posted on by
Reply

Ashley Creek Phosphate Co. (Ashley Creek) appealed a district court’s dismissal for lack of standing in its suit against Secretary of the Interior, Gale Norton. Ashley Creek brought the claim under the National Environmental Policy Act (NEPA), [1] alleging that the Bureau of Land Management’s (BLM) Environmental Impact Statement (EIS) failed to consider the option of obtaining phosphate mineral deposits controlled by Ashley Creek in a decision to expand mining into BLM controlled land. Under de novo review, the panel held that Ashley Creek possessed neither Article III nor prudential standing because Ashley Creek had only an economic interest in the outcome of the case, and thus failed to demonstrate an injury in fact, or an interest within the zone of interests protected by section 102(2)(C) of NEPA.[2] In so doing, the Ninth Circuit squarely rejected the Eighth Circuit’s determination that section 102 protects “purely economic interests.”[3] Judge McKeown wrote for the panel. Judge Beezer concurred in the first part of the opinion that contemplated constitutional standing and concurred in the decision.

Agrium Conda Phosphate Operations (Agrium), a manufacturer of phosphate-based fertilizer at the Conda Phosphate Processing Plant (the Plant) near Soda Springs, Idaho, historically obtained phosphate from the Rasmussen Ridge Mine (Rasmussen Ridge), about twelve miles from the Plant. In the late 1990′s, with Rasmussen Ridge nearing depletion, Agrium began to explore alternative phosphate sources, one of which was deposits near Vernal, Utah (the Vernal deposits) controlled by Ashley Creek. Agrium decided the Vernal deposits were not a cost effective source of phosphate after considering the cost of mining and transporting the materials approximately 250 miles. Agrium decided instead to expand Rasmussen Ridge into North Rasmussen Ridge, a location not previously mined by Agrium and under BLM administration. Agrium’s decision necessitated that Agrium submit a mine and reclamation plan (the Plan).

In response to Agrium’s plan, BLM prepared an EIS considering three alternatives and evaluating prospective impacts of exposing selenium and other harmful materials, including possible harm to the Canada Lynx, The court noted that “exposure of selenium and other elements contained in phosphate increases the potential for release of those elements into the water and soil.”[4] The EIS alternatives included the Plan as submitted and a no action alternative. In response, Ashley Creek commented that the draft EIS was deficient in failing to consider the Vernal deposits as an alternative. Further, Ashley Creek asserted that the Vernal deposits were environmentally superior to the Plan and were cost effective.

BLM declined to include the Vernal deposits as an alternative claiming that it had no responsibility to make any comparative analysis between the North Rasmussen Ridge Deposits and Vernal deposits. BLM believed that the EIS needed only address the issue of whether the North Rasmussen Ridge should be mined at that time. Furthermore, BLM explained that it did not choose to explore the Vernal deposits as an alternative because a past Agrium investigation had determined that the Vernal deposits could not provide an adequate supply of phosphate.

Ashley Creek filed suit in Idaho District Court after release of the final EIS, alleging deficiency in its alternatives analysis in view of its failure to consider the Vernal deposits. The district court dismissed the case for lack of standing after concluding Ashley Creek’s motivation for the suit was purely economic and that economic interests fall outside the zone of interests protected by NEPA.

Ashley Creek’s appeal required the panel to decide the threshold question of standing, “the question of . . . whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”[5] ”Because Article III of the Constitution limits the role of the judiciary to hearing only ‘cases’ or ‘controversies,’ constitutional standing ensures that a plaintiff has sufficient stake in a case to establish a ‘case’ or ‘controversy.’”[6] The panel further considered the requirements of prudential standing “consisting of ‘several judicially self-imposed limits on the exercise of federal jurisdiction.’”[7]

The Ninth Circuit defined the requirements of Article III standing:

as an ‘irreducible minimum’ that the plaintiff show (1) an injury in fact that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision.[8]

The panel held that Ashley Creek failed to establish an injury in fact.

The panel characterized the wrong asserted by Ashley Creek, that BLM failed to consider the Vernal deposits as an alternative within the EIS, as procedural because BLM failed to follow procedures set forth in section 102(2)(C)(iii) of NEPA, which requires consideration in an EIS of alternatives to a proposed action. The panel held that procedural injuries may suffice to provide standing in light of NEPA’s procedural nature,[9] but to establish standing, a plaintiff must demonstrate that the “procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.”[10] Further, the panel held that a “free-floating assertion of a procedural violation, without a concrete link to the interest protected . . . does not constitute an injury in fact.”[11]

Relying on a previous Ninth Circuit opinion, Cantrell v. City of Long Beach,[12] the panel held that the “concrete interest” test under NEPA requires a “geographic nexus” between the plaintiff alleging an injury and the locus of the environmental impact. The panel thus held that “plaintiffs who use the area threatened by a proposed action or who own land near the site of a proposed action have little difficulty establishing a concrete interest.”[13]

However, the panel held that Ashley Creek failed to demonstrate “any judicially recognizable geographic nexus to the area that would be affected by mining on the North Rasmussen Ridge,”[14] some 250 miles from Ashley Creek’s Vernal deposits and across the Idaho-Utah border. The panel noted that 250 miles does not represent a threshold distance beyond which a geographic nexus may not be found to assert standing, but that the distance did prevent an assumption, on the facts before the panel, that Ashley Creek was geographically connected to North Rasmussen Ridge. The panel went on to hold that Ashley Creek did not demonstrate that its phosphate reserves were connected to the proposed mining or that its property interests would be affected by the proposed mining. Further, Ashley Creek did not allege “it uses, appreciates, or in any way has an interest in the region surrounding North Rasmussen Ridge.”[15]

Thus, the court held that Ashley Creek failed to demonstrate a “legally sufficient link between Ashley Creek’s interest-getting the BLM to analyze unrelated phosphate deposits 250 miles away from the proposed mines-and NEPA’s procedural requirement that agencies analyze the environmental impact of the proposed mining at a specific site, North Rasmussen Ridge. Not only [was] the geographic link missing, the substantive concrete injury [was] wholly absent.”[16]

The panel emphasized its holding in two ways. First, the panel extended its interpretation of Ashley Creek’s theory. The court opined that “any owner of a phosphate mine, whether located in Alaska, Utah, or Florida, would have standing to challenge the EIS. Why stop there? Taking Ashley Creek’s framework one step further, the BLM would be obligated not only to analyze the environmental suitability of unrelated phosphate deposits, but also phosphate substitutes that might be more eco-friendly.”[17] Second, the panel analogized Ashley Creek to “Justice Scalia’s example of the kinds of plaintiffs who cannot assert procedural injuries: ‘persons who have no concrete interests affected-persons who live (and propose to live) at the other end of the country from the [proposed project].’”[18] Absent evidence showing a geographic nexus between Ashley Creek’s holdings and the location of the proposed project, the Ninth Circuit held that Ashley Creek’s holdings are “at the other end of the country” for purposes of standing, and thus Ashley Creek was precluded “from alleging a procedural injury sufficient to confer standing.”[19]

As an alternative theory for the Ninth Circuit’s decision, a majority of the panel held that Ashley Creek did not satisfy the zone of interests test, a requirement of prudential standing. “The prudential standing analysis examines whether ‘a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.’”[20] The court concluded Ashley Creek’s purely financial interest in challenging the EIS’ alternatives analysis contrasted with NEPA’s environmental purposes and thus held that Ashley Creek’s interest fell outside the zone of interests protected under NEPA. Thus, the court concluded that Ashley Creek also lacked prudential standing. In so holding, the panel acknowledged its split with the Eighth Circuit.

The panel began by relying on a prior Ninth Circuit opinion[21] holding that NEPA does not provide a private right of action and that plaintiffs challenging an action agency in light of NEPA must do so under the Administrative Procedure Act (APA).[22] The panel described, “the Supreme Court has interpreted this section of the APA as imposing a prudential standing requirement that the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question.”[23]

The panel held that the zone of interests test does not present “an onerous burden on the plaintiff” nor is it “meant to be especially demanding.”[24] However, the court held that a when a plaintiff in general, and Ashley Creek in particular, is not “the subject of the contested regulatory action, the test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”[25]

Because the Ninth Circuit concluded that purely financial interests fall outside NEPA’s zone of interests, “[a] plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA.”[26] Thus, the court held Ashley Creek failed to demonstrate prudential standing because Ashley Creek failed to assert an interest “even remotely intertwined with the environment.”[27] Rather, Ashley Creek’s conceded interest was selling phosphate to Agrium, an interest unlinked to the environment or environmental impacts evaluated by the EIS.

The court squarely rejected Ashley Creek’s argument that the zone of interests rule under NEPA, precluding pecuniary interests, ceases to apply once an agency moves forward on an EIS. Ashley Creek’s argument derived from its position that section 102, defining EIS content once an agency determines an EIS is required, protects pure pecuniary interests. The court rejected Ashley Creek’s argument on the basis that the argument required a bifurcated reading of NEPA that would provide different standing requirements for cases in which an EIS is clearly required and threshold cases where an agency may not be required to generate an EIS.

Ashley Creek’s argument derived from Bennett v. Spear,[28]where the Supreme Court considered the zone of interests under the Endangered Species Act (ESA).[29] There, the Supreme Court pronounced that the zone of interests “is to be determined not by reference to the overall purpose of the Act in question . . . , but by reference to the particular provision of law upon which the plaintiff relies.”[30] The Court held that a primary object of the disputed section in Bennett was to prevent needless economic harm from a “haphazard” implementation of species protection. Thus, plaintiffs in Bennett asserted pecuniary interest, which fell within the zone of interests of the disputed section 7 of the ESA.

The Eighth Circuit applied Bennett‘s rule to section 102 of NEPA in Friends of the Boundary Waters Wilderness v. Dombeck.[31] There, the Eighth Circuit examined section 102 and its regulations requiring an EIS to contemplate economic effects “interrelated with physical environmental effects” and determined that NEPA’s zone of interest encompasses both economic and environmental concerns. The Eighth Circuit distinguished between cases requiring an EIS, in which Plaintiffs with purely economic interests may bring suit to challenge the agency’s decision under NEPA, and threshold cases in which the general environmental purposes of NEPA apply exclusively. Under this reasoning, purely economic interests give rise to standing when a plaintiff asserts a deficient EIS because NEPA’s general environmental purposes do not govern specific provisions controlling the EIS process.

The Ninth Circuit disagreed with the Eighth Circuit’s conclusions that section 102 protects purely economic interests and “that it can be severed from NEPA’s overarching purpose.”[32] The panel held that section 102(2)(C) “acknowledges economic concerns [but those] concerns are not divorced from environmental considerations. In other words, § 102(2)(C) does not set out a purely economic factor, unconnected to environmental concerns.”[33] The panel’s analysis of section 102(2)(C) began by holding that “the human environment is the overarching principle driving the provision.”[34] The Ninth Circuit then read environmental considerations into each EIS requirement listed in section 102(2)(c) which “[left] no room for economic interests divorced from the environment.”[35]

The panel found historical support for its interpretation of section 102(2)(C)’s [36] exclusively environmental focus and interpreted Metropolitan Edison Co. v. People Against Nuclear Energy[37] to hold that NEPA requires agency contemplation of not all project impacts but only “those that have a ‘reasonably close causal relationship’ with ‘a change in the physical environment.’”[38] Further, the panel found support in the implementing regulations, holding that 40 C.F.R. § 1508.14 (2005) “indicates that [while] economic considerations may be relevant, those economic effects matter only when they are ‘interrelated‘ with ‘natural or physical environmental effects.’”[39] Thus, the Ninth Circuit interpreted relevant case law and agency regulation to exclude plaintiffs with purely economic interests from section 102(2)(C)’s zone of interests.

Finally, the panel concluded its prudential standing analysis by holding that section 102 may not be divorced from the overarching environmental purpose of NEPA, further rejecting Ashley Creek’s urging to follow the Eighth Circuit’s interpretation of Bennett. The Ninth Circuit panel held the Supreme Court’s ruling in Bennett that divorced the general purpose of the ESA (species preservation) from the section 7 purpose (preventing economic waste) does not create a presumption that all statutes’ general and specific purposes are different.

The panel distinguished NEPA and the ESA and held that while the substantive provisions of the ESA may be separated and analyzed independently, “each section of NEPA is a purely procedural one that furthers the general purpose of the statute,”[40] and thus cannot be bifurcated from the statute’s general purpose. The Ninth Circuit concluded that this overarching purpose was to “declare a national commitment to protecting and promoting environmental quality”[41] and that each NEPA provision, procedural in nature, furthers that purpose. Thus, the panel concluded, the purpose of each section of NEPA coincides identically with the purpose of NEPA as a whole: “protection of the environment.”[42]

Thus, the panel concluded its opinion by refuting the Eight Circuit’s distinction between cases involving NEPA’s threshold applicability and cases involving evaluation of the EIS process. In doing so the panel repeated its view that “a purely economic injury that is not intertwined with an environmental interest does not fall within § 102′s zone of interests.”[43] Thus, the Ninth Circuit affirmed the district court’s dismissal of Ashley Creek’s suit for lack of standing because Ashley Creek failed to establish an injury in fact or an interest falling within NEPA’s protected zone of interests.

In a concurrence in part, and concurrence in the judgment, Judge Beezer concluded that because Ashley Creek failed to establish Article III standing, the court should have foregone holding that the prudential standing doctrine forecloses a suit under section 102 of NEPA by any plaintiff asserting a purely economic harm.

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

[2] To maintain consistency with the opinion as written, reference to NEPA is “as enumerated in the original Act, rather than by its current section designation in the United States Code. section 102 is codified at 42 U.S.C. § 4332.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 936 (9th Cir. 2005).

   [3] Id. at 940-41.

   [4] Id. at 936.

   [5] Id. at 937 (citing Warth v. Seldin, 422 U.S. 490 (1975)).

   [6] Id.

   [7] Id.

   [8] Id. (citations omitted).

[9] The Court stated a “plaintiff ‘assuredly can’ enforce procedural rights.” Id. (citing Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970-972, 978 (9th Cir. 2003)). In Citizens for Better Forestry, plaintiffs had standing based on their allegations that they were deprived an opportunity to comment on environmental reviews, a procedural injury, and a Supreme Court decision, Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992).

[10] Id. at 938 (citing Lujan, 504 U.S. at 573 n.8.) The Ninth Circuit described its analysis of an asserted procedural injury under NEPA: “1) whether the agency violated certain procedural rules, 2) whether those rules protect the plaintiff’s concrete interests, and 3) whether it is reasonably probable that the challenged action will threaten the concrete interests.” Id. at 938 n.2. Because the first consideration is entwined with the merits of Ashley Creek’s claim, which can’t be decided absent Ashley Creek’s standing, the panel focused on the second consideration.

[11] Id. at 938.

[12] 241 F.3d 674, 679 (9th Cir. 2001).

[13] Ashley Creek, 420 F.3d at 938.

[14] Id.

[15] Id. at 939.

[16] Id.

[17] Id.

[18] Id. (citing Lujan, 504 U.S. at 572 n.7).

[19] Id.

[20] Id. (citing Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Cir. 2004)).

[21] Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988).

[22] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000) (providing adversely affected or aggrieved individuals a right to judicial review of agency actions that cause the adverse effect within the meaning of a relevant statute).

[23] Ashley Creek, 420 F.3d at 940-41 (citing Ass’n of Data Processing Serv. Orgs., Inc v. Camp, 397 U.S. 150, 153 (1970)).

[24] Id. at 940 (citing Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 399 (1987)).

[25] Id.

[26] Id. (citing Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)).

[27] Id.

[28] 520 U.S. 154 (1997).

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

[30] Ashley Creek, 420 F.3d at 941 (citing Bennett, 520 U.S. at 175-76).

[31] 164 F.3d 1115 (8th Cir. 1999).

[32] Ashley Creek, 420 F.3d at 942.

[33] Id.

[34] Id. at 943.

[35] Id.

[36] See Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 143 (1981) (explaining that the “section 102(2)(C) aims both to ‘to inject environmental considerations into the federal agency’s decisionmaking [sic] process’ and ‘to inform the public that the agency has considered environmental concerns.’”).

[37] 460 U.S. 766 (1983).

[38] Ashley Creek, 420 F.3d at 943 (quoting Metro. Edison, 460 U.S. at 772, 774).

[39] Id. at 944 (quoting C.F.R. § 1508.14). The panel agreed with the D.C. Circuit’s criticism of the Eighth Circuit in Stratford v. Fed. Aviation Admin., 285 F.3d 84, 89 (D.C. Cir. 2002). The Ninth Circuit noted in a footnote that generally “courts should not use regulations to expand the zone of interests beyond what Congress intended.” Ashley Creek, 420 F.3d at 944 n.4. But the panel stopped short in the present case, holding that the regulations and statutory text remain consistent by entwining economic interests with environmental concerns.

[40] Ashley Creek, 420 F.3d at 944.

[41] Id. at 945.

[42] Id.

[43] Id.