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

Posted on November 14, 2009 by Environmental Law

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

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

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

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

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

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

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

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

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

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

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

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

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

^[3] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006)(amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

^[4] USFS initially released an FSEIS and ROD in September 2001. LOWD filed an administrative appeal against the ROD, which prompted USFS to withdraw the ROD for further analysis and public comment. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv. (League of Wilderness Defenders), 549 F.3d 1211, 1214 (9th Cir. 2008).

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

^[6] 5 U.S.C. § 706(2) (2006).

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

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

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

^[10] Id. at 769-70.

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

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

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

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

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

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

^[17] 40 C.F.R. § 1508.28 (2008).

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

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

^[20] 16 U.S.C. § 472a(g) (2006).

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

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

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

Coos County Board of County Commissioners v. Kempthorne

Posted on November 14, 2009 by Environmental Law

The Coos County Board of County Commissioners (Coos County) appealed a district court decision dismissing its action brought against the United States Fish and Wildlife Service, the Director of the United States Fish and Wildlife Service, and the Secretary of the Interior (collectively FWS). Coos County filed suit in the United States District Court for the District of Oregon under the Endangered Species Act (ESA)[1] citizen suit provision and under the Administrative Procedure Act (APA),[2] alleging that FWS had failed to act on a duty to promptly remove the marbled murrelet, a rare seabird that nests in old growth forests, from the threatened species list following a five-year review. The district court granted FWS’s motion to dismiss for lack of subject matter jurisdiction, or alternatively, for failure to state a claim. The Ninth Circuit affirmed the district court’s dismissal, holding that FWS did not have a nondiscretionary duty under the ESA to delist the marbled murrelet, despite having concluded that it did not qualify as a distinct population segment protected under the ESA.

Marbled murrelets are dove-sized birds that feed on sea life and nest in old growth forests.[3] In 1992, the population of the murrelets living in Washington, Oregon, and California crashed to approximately 9000 birds because a loss of old growth forest habitat from timber harvesting limited potential nest sites and left remaining nest sites more accessible to predators and because of threats from gill-net fishing boats and oil spills.[4] Following National Audobon Society’s petition for listing and a subsequent lawsuit,[5] FWS listed the murrelet population living in Washington, Oregon, and California-referred to as the tri-state murrelet-as a “threatened species.”[6] In its listing decision, FWS explained it was listing the tri-state murrelet as a distinct population segment in compliance with the district court’s order, but that it intended to reexamine whether the tri-state murrelet qualified as a protectable ESA species.[7] However, FWS neither altered nor proposed alteration of the listing. Instead, FWS designated critical habitat[8] and adopted a recovery plan for the tri-state murrelet.

At the completion of a statutorily-mandated,[9] five-year review in 2004, FWS concluded the tri-state murrelet did not meet the definition of a “distinct population segment.”[10] Despite the finding, FWS did not alter the protections afforded to the tri-state murrelet. FWS determined delisting was not warranted, relying on the rationale first articulated by the 1992 district court: Even if the tri-state murrelet did not constitute a distinct population segment, the fact that the marbled murrelet remained threatened through a significant portion of its range provided an alternative basis for listing.[11]

Based on the five-year review’s determination that the tri-state population was not a distinct population segment, Coos County advised FWS of its intent to sue to require FWS to delist the murrelet.[12] When FWS did not comply with Coos County’s request to delist the murrelet, Coos County filed suit under the citizen-suit provision of the ESA, alleging that FWS had violated both the ESA and APA. First, Coos County argued that under the ESA’s publishing requirements, once FWS determined in the five-year review that the tri-state murrelet was not a distinct population segment, it should have concluded that the murrelet could not be protected under the ESA and promptly published a proposed rule for delisting. Second, Coos County argued FWS’s failure to delist the tri-state murrelet was “agency action unlawfully withheld or unreasonably delayed” under the APA.[13] FWS filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court granted the motion and Coos County timely appealed to the Ninth Circuit.

The Ninth Circuit characterized Coos County’s complaint as proceeding under the ESA’s citizen suit provision[14] and the APA,[15] but noted that the ESA claim would preclude the APA claim if the two claims were identical.[16] Because Coos County’s claims against FWS depended upon a waiver of sovereign immunity for federal court jurisdiction, the Ninth Circuit reasoned that the claims could proceed “only if FWS has a nondiscretionary duty to begin the delisting process-promptly or otherwise-as a result of the determination made in the Five-Year Review and has failed to act upon that duty.”[17] Accordingly, the court analyzed the specific five-year review provision which provided that “[e]ach [five-year review] determination . . . shall be made in accordance with the provisions of subsections (a) and (b) of [16 U.S.C. § 1533].”[18] To consider Coos County’s claim that the five-year determination incorporated the specific deadlines listed by the referenced provisions, the Ninth Circuit sought to evaluate the text and context of section 1533, as well as regulations implemented pursuant to section 1533.

Before focusing on these specific tools of statutory interpretation, the Ninth Circuit provided an overview of section 1533 of the ESA and described Coos County’s fundamental misinterpretation of it. The court explained that the ESA sets out two methods for listing species for protection and for making determinations concerning those species.[19] The first method allows for the Secretary of the Interior to identify species for protection on his own initiative. The second method allows interested citizens to file a petition compelling listing, and contains a “promptly publish” deadline triggered by the filing of a petition. The Ninth Circuit held the “fundamental flaw in Coos County’s statutory argument is that it conflates these two different mechanisms, inappropriately shoe-horning the five-year review process, a statutory step of the kind conducted on the Secretary’s initiative, into the system of deadlines created to address citizen-initiated petitions.”[20] The statutory text, statutory structure, and associated regulations supported the court’s conclusion to affirm the district court’s dismissal of Coos County’s complaint.

In analyzing the text of the ESA, the Ninth Circuit noted that section 1533(b)(3), the citizen petition provision, contains the “promptly publish” requirement relied upon by Coos County. The citizen provision, importantly, also incorporates explicit statutory deadlines, including requiring the Secretary to review petitions to determine whether listing is warranted.[21] In contrast, the five-year review provision, which is agency-initiated, does not contain any explicit publication deadlines.[22] Thus, the ESA “sets out two review processes, one with deadlines, one without, and includes deadlines only for the petition process.”[23] Explaining that Coos County’s interpretation of the ESA would require the judiciary to pick and choose among the different portions of the ESA, the court rejected Coos County’s argument that the five-year review provision incorporated statutory deadlines from the petition provision. Coos County argued that section 1533(c)(2), which requires that “[e]ach [five-year review] determination . . . shall be made in accordance with” the generally applicable provisions of section 1533(b), required the FWS to comply with the publication deadlines set out in section 1533(b) for responding to citizen petitions. In response, the Ninth Circuit explained that most of the requirements in sections 1533(a) and (b) govern the listing decision-making process in general, not the petition process. For example, section 1533(a)(1) sets out the substantive factors the Secretary must consider in making a listing decision, and section 1533(b)(1)(A) dictates that the decisions are to be based on the basis of the “best scientific and commercial data available.”[24] In the court’s view, the “in accordance with” clause of section 1533(c)(2) incorporates the provisions that generally govern listing determinations, the five-year review process, and delisting determinations, “and not the deadlines that pertain only to petitions.”[25]

The Ninth Circuit also concluded Coos County’s interpretation of the ESA was unsupported by the statutory structure. The court noted that the basic provisions of the ESA as originally enacted gave the Secretary considerable scheduling discretion and contained no deadlines governing the publication of a proposed rule. Only after Congress became aware that such delays could undermine timely implementation of the statutory scheme did it amend the ESA by adding the petition process provisions and the respective mandated deadlines.[26] Coos County’s reading of the statute would undermine the statutory scheme because it would “turn the five-year review process into a hybrid of the two, otherwise distinct, decision-making models that the ESA sets out.”[27] Additionally, the court reasoned that incorporating some of the petition process into the agency-initiated process risked disturbing the balance between “judicial review, agency expertise[,] and the public’s right to a healthy, sustainable ecosystem which fosters biological diversity.”[28] Based on this division between the ESA’s agency-initiated determination and petition-driven actions, the court rejected Coos County’s interpretation of the statute.

The Ninth Circuit’s analysis of implementing regulations also supported its view that the “in accordance with” clause of section 1533(c)(2) is intended only to ensure that five-year review determinations are made consistent with the general standards provided for ESA determinations, and not to incorporate any deadlines relating specifically to the citizen petition process. As the court explained, the regulation governing the five-year reviews[29] does not contain any “promptly publish” requirement. The regulation merely specifies how a determination during the five-year review is to be made, without importing any deadlines from the petition process into the five-year review determination.[30]

Having rejected Coos County’s interpretation of the ESA provisions, the Ninth Circuit held Coos County’s challenge to FWS’s failure to delist the tri-state murrelet must also fail. First, the Ninth Circuit held that Coos County’s ESA claim precluded its APA claim because the two were essentially identical, and the ESA claim-if successful-could provide Coos County with an “adequate remedy.”[31] Under the ESA citizen suit provision, Coos County must allege “a failure of the Secretary to perform any act or duty under section 1533 . . . which is not discretionary with the Secretary.”[32] The Ninth Circuit held that Coos County could not show that the Secretary failed to perform a nondiscretionary duty because FWS lacked any duty under the five-year review procedure to 1) to promptly publish a change in listing status or to 2) delist the tri-state murrelet after determining that delisting was not warranted. Because Coos County failed to show that FWS has “failed to take a discrete agency action that it is required to take,” it also failed to state a claim for relief. [33]

Although the Ninth Circuit affirmed the district court’s dismissal, the court explained that the county is not “without recourse” because it was free to file a delisting petition.[34] The court explained such a petition would not be futile because such a petition may cause FWS to reconsider the conclusions drawn in its five-year review, even though the petition may not ultimately succeed.

In conclusion, the Ninth Circuit affirmed the dismissal of Coos County’s complaint against FWS. The court held that FWS did not have a mandatory duty to promptly delist the tri-state murrelet from protections under the ESA after the five-year review because the review provision did not incorporate the deadlines from the petition provisions and because the five-year review determined that a delisting was unwarranted. Because Coos County’s claim under the APA duplicated its ESA claim, it was precluded. The court ruled that Coos County could use the petition process if it “wishes to force FWS to act swiftly” to consider delisting the tri-state murrelet.[35]

^[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[3] Determination of Threatened Status for the Washington, Oregon, and California Population of the Marbled Murrelet (Listing Rule), 57 Fed. Reg. 45,328, 45,328-29 (Oct. 1, 1992).

^[4] Id. at 45,329, 45,333-36.

^[5] Marbled Murrelet v. Lujan, No. C91-522R, slip op. (D. Wash. Sept. 17, 1992).

^[6] A species qualifies as a “threatened species” under the ESA if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20) (2006).

^[7] Listing Rule, 57 Fed. Reg. at 45,330.

^[8] Final Designation of Critical Habitat for the Marbled Murrelet, 61 Fed. Reg. 26,256, 26,258 (May 24, 1996).

^[9] See 16 U.S.C. § 1533(c)(2) (2006) (requiring FWS to conduct, at least every five years, a review of all species protected under the ESA and to determine on the basis of such a review whether the listing status of protected species should be changed).

^[10] Under its distinct population segment policy, FWS first considers whether a population is discrete relative to “the remainder of the species to which it belongs.” If the species is discrete, the FWS inquires into the “significance” of the population to the species as a whole. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996).

^[11] U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review 6 (2004), available at http://www.fws.gov/Pacific/ecoservices/endangered/recovery/Documents/Marbled%20murrele.pdf(citing Marbled Murrelet v. Lujan, No. C91-522R, slip op. at 12 (D. Wash. Sept. 17, 1992).

^[12] See 16 U.S.C. § 1540(g)(2) (2006) (requiring notice for ESA citizen suits).

^[13] 5 U.S.C. § 706(1) (2006).

^[14] 16 U.S.C. § 1540(g)(1) (2006).

^[15] 5 U.S.C. § 706(1) (2006).

^[16] See Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9th Cir. 1998).

^[17] Coos County Bd. of County Comm’rs v. Kempthorne (Coos County), 531 F.3d 792, 803 (9th Cir. 2008).

^[18] 16 U.S.C. § 1533(c)(2) (2006).

^[19] Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 834 (9th Cir. 2001).

^[20] Coos County, 531 F.3d at 804.

^[21] See 16 U.S.C. § 1533(b)(3) (2006).

^[22] Compare id. § 1533(b)(3)(A), with id. § 1533(c)(2).

^[23] Coos County, 531 F.3d at 805.

^[24] 16 U.S.C. § 1533(b)(1)(A) (2006).

^[25] Coos County, 531 F.3d at 807.

^[26] See Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 840 (2001); see also Endangered Species Act Amendment of 1982, Pub. L. No. 97-304, § 2, 96 Stat. 1411, 1412-14 (1982).

^[27] Coos County, 531 F.3d at 808.

^[28] Wyoming v. U.S. Dep’t of the Interior, 360 F. Supp. 2d 1214, 1229 (D. Wyo. 2005),aff’d on other grounds, 442 F.3d 1262 (10th Cir. 2006).

^[29] 50 C.F.R. § 424.21 (2008).

^[30] The court also noted that 50 C.F.R. § 424.21references three regulations that follow the statutory provisions applying to determinations generally, instead of the statutory provisions applying to the petition process.

^[31] Brem-Air Disposal, 156 F.3d 1002, 1004-05 (9th Cir. 1998).

^[32] 16 U.S.C. § 1540(g)(1)(C) (2006).

^[33] Norton v. S. Utah Water Alliance, 542 U.S. 55, 62 (2004)(interpreting 5 U.S.C. § 706(1)).

^[34] Coos County, 531 F.3d 792, 812 (9th Cir. 2008)

^[35] Id. at 813.

United States v. Approximately 64,695 Pounds of Shark Fins

Posted on November 14, 2009 by Environmental Law

Tai Loong Hong Marine Products, Ltd. (TLH) appealed a decision by the district court entering judgment of forfeiture for shark fins seized by the United States Coast Guard (Coast Guard) from a vessel chartered by TLH. The district court held that TLH’s boat was a fishing vessel as a matter of law under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)[1] and that the fins were subject to forfeiture because they were taken in violation of the Shark Finning Prohibition Act (SFPA). The Ninth Circuit reversed the district court, holding neither the SFPA nor applicable regulations provided fair notice to TLH that its chartered craft would be considered a fishing vessel under the Magnuson Act. The court remanded the case to the district court for further proceedings.

Hong Kong company TLH chartered the King Diamond II (KD II), a U.S.-registered vessel owned by an American company, to purchase shark fins from foreign fishing vessels at sea and transport the fins to Guatemala for resale. In 2002, Coast Guard officials boarded the KD II approximately 250 miles off the Guatemala coast and found more than thirty-two tons of shark fins but no carcasses on board. After the Coast Guard detained the KD II and escorted it to San Diego, the United States filed a civil complaint for forfeiture of the shark fins, alleging that the fins were taken or retained in violation of the SFPA and its implementing regulations.[2]

The SFPA, which amended the Magnuson Act, was intended to eliminate the practice of shark finning.[3] The relevant portion of the SFPA makes it unlawful to possess shark fins aboard a “fishing vessel” without the corresponding carcasses.[4] Section 1802(18)(B) of the Magnuson Act defines a fishing vessel as any vessel that is used for “aiding or assisting one or more vessels at sea in the performance of any activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or processing.”[5]

The district court ruled that the KD II met the statutory definition of “fishing vessel” because it aided or assisted other vessels at sea in the performance of fishing-related activities.[6] Consequently, it granted the government’s motion for summary judgment and entered a judgment of forfeiture on the stipulated fair market value of the fins. TLH appealed, arguing that the KD II was not a “fishing vessel” within the meaning of the statute and that the application of the SFPA to the KD II violated due process.

The Ninth Circuit began its analysis by noting that due process requires an agency to provide “fair notice of what conduct is prohibited before a sanction can be imposed.”[7] The court explained that to provide sufficient notice, a statute or regulation must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.”[8] Looking at the plain language of the statute and regulations, the court held that a reasonable owner or operator of a vessel engaged in at-sea purchase and transport of shark fins would not have fair notice that its craft could be deemed a fishing vessel under section 1802(18)(B). It thus held that the district court’s application of the SFPA to the KD II as a fishing vessel violated due process. Accordingly, the Ninth Circuit reversed the decision and remanded for further proceedings.

In reaching its holding, the Ninth Circuit first examined the plain language of the statute and found nothing that would provide notice to the owner or operator of the KD II that its activities would render it a fishing vessel. The Ninth Circuit rejected the district court’s reasoning that purchasing shark fins at locations designated by the foreign vessels constitutes an act of aiding or assisting the foreign vessels. Utilizing the dictionary definition of “aiding” and “assisting,” the Ninth Circuit rejected the district court’s finding that the purchase, storage, and transport of shark fins aided and assisted the foreign fishing vessels at sea in the performance of fishing-related activities. The dictionary definitions of “aiding” and “assisting” generally connote performing an act for the benefit of another.[9] The court concluded that TLH was at all times acting for its own commercial benefit, not for the benefit of the foreign fishing vessels from which it purchased the shark fins. Consequently, the KD II could not have aided or assisted the foreign fishing vessels. Furthermore, because the statute did not list “purchasing” as one of the acts that constitutes aiding and assisting, the statutory provision prohibiting “aiding or assisting any activity relating to fishing” does not give fair notice that purchasing, storing, and transporting shark fins is prohibited.

The Ninth Circuit also rejected the district court’s reasoning that at-sea purchase of the fins constituted aiding and assisting because the purchase allowed the foreign vessels to continue fishing for longer than otherwise would have been possible. Focusing on the idea that a purchaser is doing no more than furthering its own business interests, the Ninth Circuit explained that the district court’s assumption that the seller would benefit from the location of particular sales was irrelevant.

Having found nothing in the plain language of the statute that would provide notice to TLH that the possession prohibition applied to its activities, the Ninth Circuit turned to the implementing regulations of the SFPA to determine if they provided notice. Pursuant to the SFPA, the National Marine Fisheries Services promulgated regulations making it unlawful, in relevant part, to possess shark fins without the corresponding carcasses while on board a U.S. fishing vessel[10] and to “land” shark fins without the corresponding carcasses.[11] The district court, in support of its conclusion that the regulations make clear the KD II was a fishing vessel, relied on the regulation prohibiting the landing of shark fins. That regulation explicitly provides that a cargo vessel that “lands” shark fins after an at-sea transfer is considered a fishing vessel.[12] The Ninth Circuit rejected this reasoning, noting that the applicable regulation, the one prohibiting possession of shark fins, includes no such provision.[13] Where an agency includes language in one section of the regulation and omits it in another, it is reasonable to presume that an agency acted intentionally in forgoing the language.[14] The court thus concluded that the regulation prohibiting possession does not define vessels that engage in at-sea transfer of shark fins as “fishing vessels.” Consequently, the court held that the regulations could not have provided the KD II with notice that its activities would render it a fishing vessel under section 1802(18)(B).

In conclusion, the Ninth Circuit held that the district court’s application of the possession prohibition to the KD II violated due process because a reasonable person would not have fair notice from the statute and regulations that the KD II‘s activities would render it a fishing vessel under the statute. The district court’s decision to grant a judgment of forfeiture was reversed and the case was remanded for further proceedings.

^[1] 16 U.S.C. §§ 1801-1883 (2006).

^[2] The prohibition on possession of shark fins aboard a fishing vessel under 16 U.S.C. § 1857(1)(P)(ii)and its implementing regulation at 50 C.F.R. § 600.1203(a)(2)is referred to as the “possession” prohibition.

^[3] 16 U.S.C. § 1857(1)(P) (2006) (codifying section 3 of the Shark Finning Prohibition Act, Pub.L. No. 106-557, 114 Stat. 2772 (2000)).

^[4] Id.

^[5] Id. § 1802(18)(B) (emphasis added).

^[6] United States v. Approximately 64,695 Pounds of Shark Fins, 353 F. Supp. 2d 1095, 1101 (S.D. Cal. 2005).

^[7] Stillwater Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 142 F.3d 1179, 1182 (9th Cir. 1998).

^[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

^[9] The Ninth Circuit noted that the American Heritage Dictionary of the English Language defines “to assist” as “[t]o give help or support to, especially as a subordinate or supplement; aid.” American Heritage Dictionary of the English Language 109 (4th ed. 2000).Similarly, it defines “to aid” as “[t]o help or furnish with help, support, or relief.” Id. at 36.

^[10] 50 C.F.R. § 600.1203(a)(2) (2007).

^[11] Id. § 600.1203(a)(3).

^[12] Id. § 600.1204(c).

^[13] See id. § 600.1204(b).

^[14] Cf. Bates v. United States, 522 U.S. 23, 29-30 (1997) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”).

Salmon Spawning & Recovery Alliance v. Guiterrez

Posted on November 14, 2009 by Environmental Law

Conservation groups Salmon Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers (collectively Recovery Alliance) filed suit against the National Marine Fisheries Service (NMFS), the Department of Commerce, the State Department, and the official heads of each agency, alleging that United States’s entry and participation in the Pacific Salmon Treaty (Treaty)[1] violated the Endangered Species Act (ESA)[2] and the Administrative Procedure Act (APA).[3] The United States District Court for the Western District of Washington dismissed Recovery Alliance’s complaint for lack of Article III standing. On appeal, the Ninth Circuit affirmed the district court’s conclusions that Recovery Alliance lacked standing to challenge the adequacy of NMFS’ biological opinion (1999 BiOp) authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit held that Recovery Alliance had standing to challenge the agencies’ failure to reinitiate consultation on the 1999 BiOp. The Ninth Circuit accordingly remanded Recovery Alliance’s remaining claim to the district court.

In 1999, the United States and Canada entered into the Treaty to manage chinook and coho salmon and steelhead trout populations (collectively salmon). The salmon originate in the Puget Sound, lower Columbia, and Snake Rivers, migrate northward across the international borders toward Alaskan and British Columbian waters, and then return to their rivers of origin to spawn and die. The Treaty, as implemented by the joint Pacific Salmon Commission, established annual harvest regimes for coastal fisheries based on abundance estimates, instead of the fixed harvest ceilings used in the first 1985 treaty, which did not change annually. The harvest regimes are subject to approval by the Secretary of State, in consultation with the Secretary of Commerce and Secretary of Interior.[4]

Because the Treaty affected twenty-six populations of salmon listed as threatened or endangered under the ESA, the United States conditioned the implementation of the Treaty on its compliance with the ESA’s section 7(a)(2) formal consultation requirement[5] and implementing regulations.[6] The State Department requested a biological opinion (BiOp) from NMFS to evaluate whether “Canadian take under the levels permitted by the Treaty” was likely to jeopardize the continued existence of any endangered or threatened species.[7] Because NMFS’ 1999 BiOp determined the Treaty would not jeopardize listed salmon, it did not have to determine “reasonable and prudent alternatives” (RPA) to avoid jeopardy.[8]

Recovery Alliance, concerned that the Treaty permitted Canadian fisheries to overharvest salmon populations protected by the ESA, sued the acting and consulting agencies and officials under the ESA and the APA. More specifically, Recovery Alliance alleged 1) the 1999 BiOp authorizing the United States’s entry into the Treaty violated sections 7 and 9 of the ESA and section 5 of the APA, 2) the agencies’ continued participation in the Treaty jeopardized listed salmon in violation of section 7(a)(2) of the ESA and section 5 of the APA, and 3) the agencies’ failure to reinitiate consultation after NFMS published new information in 2005 about salmon overharvesting violated section 7 of the ESA. The district court ruled that Recovery Alliance lacked the causation and redressibility elements for standing under the “case and controversy” requirements of Article III.[9]

Recovery Alliance appealed the district court’s dismissal and the Ninth Circuit reviewed the district court’s decision on standing de novo.[10] To establish Article III standing, a plaintiff must establish 1) an injury in fact that is concrete and particularized, and actual or imminent, 2) that the injury is fairly traceable to the challenged conduct, and 3) that the injury is likely to be redressed by a favorable court decision.[11] In addition to establishing Article III standing, the court noted that Recovery Alliance must establish statutory standing.

The Ninth Circuit first addressed Recovery Alliance’s allegation that the 1999 BiOp authorizing the United States’s entry into the Treaty violated the requirements of section 7 of the ESA and section 5 of the APA. The Ninth Circuit characterized this claim as procedural and stated that to establish a procedural injury, a plaintiff must show that the “procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.”[12] Recovery Alliance asserted that the 1999 BiOp’s foundational flaws[13] failed to ensure agency achievement of the ESA’s purpose of species preservation, thus harming Recovery Alliance’s interest in salmon preservation.

Although Recovery Alliance established a procedural injury, the Ninth Circuit ruled that it failed to establish standing because it lacked a redressable claim. First, the Ninth Circuit explained that a showing of procedural injury “lessens a plaintiff’s burden” of showing causation and redressability.[14] Thus, a plaintiff must only show they have a “procedural right that, if exercised, could protect their concrete interests.”[15] Despite this relaxed requirement, the Ninth Circuit ruled that Recovery Alliance could not demonstrate that a favorable court decision could protect their concrete interests. The court emphasized that the BiOp authorized the United States’s entry into the Treaty with Canada and set fishing levels that could only be revisited if agreed upon by both countries. Thus, even if Recovery Alliance proved a procedural violation of the ESA, the Ninth Circuit reasoned that it could not undo the United States’s decision to enter into the treaty nine years ago and lacked the power to order the Executive Branch to withdraw from the Treaty.[16] In essence, the Ninth Circuit explained that setting aside the BiOp, which the court could do, could not remedy the harm asserted by Recovery Alliance because the Treaty would remain in place. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s claim for lack of standing.

Next, the Ninth Circuit addressed Recovery Alliance’s claim that the agencies’ continued participation in the implementation of the treaty violated the substantive duty to avoid jeopardy to listed species under section 7(a)(2) of the ESA. Essentially, Recovery Alliance challenged the agencies’ decision to allow excessive Canadian harvesting under the terms of the Treaty. Although the court assumed Recovery Alliance alleged an adequate injury to its interest in salmon preservation, it ruled that Recovery Alliance lacked standing, because the overharvesting permitted under the Treaty was not fairly traceable to the United States’s failure to withdraw from the Treaty or failure to take additional conservation measures in Canada. The Ninth Circuit reasoned that if the United States withdrew from the Treaty, “harvesting of listed species would arguably increase,”[17] because any abundance-based limits would lapse. Additionally, even if the United States asked Canada to implement conservation measures, Canada could refuse.

The Ninth Circuit also ruled that Recovery Alliance also lacked standing for their related claim that the agencies’ failure to offset the effects of Canadian overharvesting by establishing conservation measures within United States’s jurisdiction, lacked standing. The court reasoned that “redressibility poses an upstream battle” since a court order that the agencies violated the ESA and APA was unlikely to redress the alleged injury, because it would result in uncertain discretionary action by the agencies,[18] including the possibility of the agencies taking no further agency action so as to avoid section 7′s no jeopardy requirement. Thus, the Ninth Circuit affirmed the district court’s dismissal of Recovery Alliance’s second claim.

Finally, the Ninth Circuit addressed whether Recovery Alliance established Article III standing, statutory standing, and associational standing in claiming that the agencies’ failure to reinitiate consultation on the 1999 BiOp following publication of new information about listed salmon, violated the ESA and implementing regulations.[19] The court ruled that Recovery Alliance properly alleged a procedural injury, which relaxed the standard for causation and redressibility. With a relaxed burden, the Ninth Circuit held that Recovery Alliance’s claim was adequately connected to the agencies’ failure to reinitiate consultation. Furthermore, the court reasoned that requiring the agencies to reinitiate consultation would provide Recovery Alliance with a remedy that did not compel the revocation or renegotiation of the Treaty. Thus, the court held Recovery Alliance established standing under Article III. The court also ruled that Recovery Alliance’s claims had statutory standing to challenge the State Department’s failure to reinitiate consultation under the ESA’s citizen suit provision[20] as well as under the APA.[21] Additionally, the court held Recovery Alliance had established associational standing because each of the groups’ members had standing to sue, the groups sought to protect interests germane to their conservation purposes, and neither the claims asserted nor the relief requested required participation of the individual members.

In conclusion, the Ninth Circuit affirmed the district court’s conclusion that Recovery Alliance lacked standing to challenge the adequacy of NMFS biological opinion authorizing entry into the Treaty and the agencies’ continued implementation of the Treaty. However, the Ninth Circuit reversed the district court’s ruling that Recovery Alliance lacked standing to challenge the agencies’ failure to reinitiate consultation following the publication of new information about listed salmon. The Ninth Circuit held that Recovery Alliance had Article III standing, statutory standing, and associational standing to challenge the agencies’ failure to reinitiate consultation. The Ninth Circuit remanded Recovery Alliance’s remaining claim to the district court.

^[1] The United States and Canada entered into the first Pacific Salmon Treaty in 1985, which expired in 1992. See Pacific Salmon Treaty Act, U.S.-Can., Jan. 28, 1985, 99 Stat. 7 (Mar. 17, 1985). In 1999, the United States and Canada entered into another agreement using the framework of the 1985 treaty. See Pacific Salmon Treaty Act of 1985, 16 U.S.C. §§ 3631-3645 (2006).

^[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[4] 16 U.S.C. § 3633(a)(2) (2006).

^[5] 16 U.S.C. § 1536(a)(2) (2006).

^[6] 50 C.F.R. § 402.14(c), 402.14(l)(1) (2008).

^[7] Salmon Spawning & Recovery Alliance v. Gutierrez (Recovery Alliance), 545 F.3d 1220, 1224 (9th Cir. 2008).

^[8] 16 U.S.C. § 1536(b)(3)(A) (2006); 50 C.F.R. § 402.14(h)(3) (2008). NMFS also issued an “incidental take statement” that exempted the State Department from the taking prohibition of the ESA. See 16 U.S.C. § 1536(b)(4) (2006).

^[9] U.S. Const. art. III, § 2.

^[10] Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F.3d 961, 969 (9th Cir. 2003).

^[11] Recovery Alliance, 545 F.3d at 1225(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

^[12] Citizens for Better Forestry, 341 F.3d at 969.

^[13] Recovery Alliance, 545 F.3d at 1225.For example, Recovery Alliance claimed that the BiOp “improperly compared only the Treaty’s effect on harvest rates to harvest rates in the absence of the Treaty, instead of aggregating the effects of take under the Treaty, other harvest impacts, and non-harvest impacts.” Id. at 1225.

^[14] Id. at 1226(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).

^[15] Id.(citing Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005), overruled on other grounds, Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007)).

^[16] Id.(citing Earth Island Inst. v. Christopher, 6 F.3d 648, 652-53 (9th Cir. 1993)).

^[17] Id. at 1228.

^[18] Id.

^[19] 50 C.F.R. § 402.16 (2008).Consultation under section 7 must be reinitiated where 1) discretionary federal involvement or control has been retained or authorized, and 2) the amount or extent of taking specified is exceeded, new information reveals effects that may affect listed species or critical habitat in a manner not considered, the action is subsequently modified so as to cause an effect to the listed species or critical habitat not previously considered, or a new species is listed or critical habitat designated. Id.

^[20] Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(1)(A) (2006).

^[21] See Envtl. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001) (explaining that standing to sue under APA existed when the complaint alleged an agency’s failure to comply with section 7 of the ESA as arbitrary, capricious, and not in accordance with procedures).

Oregon Natural Desert Association v. Bureau of Land Management

Posted on October 13, 2009 by Environmental Law

Oregon Natural Desert Association and two other environmental groups[1] (collectively ONDA) appealed a grant of summary judgment by the District Court for the District of Oregon in favor of the defendant, the Bureau of Land Management (BLM) regarding the BLM’s Southeast Oregon Resource Management Plan (Plan) and corresponding environmental impact statement (EIS) for a large portion of southeastern Oregon. The Ninth Circuit reversed and remanded, holding that BLM violated the National Environmental Policy Act (NEPA)[2] by failing to address concerns about wilderness characteristics and failing to consider alternatives that would have closed more acreage to off-road vehicles (ORVs). The Ninth Circuit set aside BLM’s record of decision (ROD) approving the EIS and the corresponding land use plan and remanded the case with instructions to BLM to remedy the NEPA deficiencies.

BLM began developing a comprehensive management plan for approximately 4.5 million acres of land in southeastern Oregon in 1995. The area is characterized by a semi-arid climate and rugged, scenic landscape that supports sagebrush plains and juniper woodlands. Economic indicators place the region’s economy, largely dependent on farming and ranching, far below statewide averages. Because federally owned land comprises a large portion of the area, BLM management of its share has a significant effect on the region’s natural resources and economy.

BLM land management authority is defined by the Federal Land Policy and Management Act (FLPMA).[3] FLPMA requires BLM to develop, maintain, and revise land-use plans using a systematic interdisciplinary management approach that gives priority to the designation and protection of areas of critical environmental concern and weighs short- and long-term benefits to the public.[4] An extensive public comment process is integral to the formulation of BLM plans.[5] Any party that has participated in the planning process and may be adversely affected may protest the approval of a BLM land-use plan.[6]

FLPMA interacts with the Wilderness Act[7] to provide BLM with broad authority to manage areas with wilderness characteristics on public lands. Specifically, FLPMA provides BLM with a process to protect areas with wilderness characteristics from impairment by designating them as Wilderness Study Areas (WSA) and recommending them for congressional protection.[8] FLPMA also authorizes BLM to account for wilderness characteristics as part of its inventory of public lands, their resources, and other values.[9]

The approval of a resource management plan by a ROD implicates NEPA[10] and requires the preparation of an EIS.[11] In contrast to the substantive rights and obligations created by land management statutes such as FLPMA, NEPA puts in place procedures to ensure that decision makers consider information about environmental impacts and disseminate such findings for public participation. An EIS guides decision making by requiring the agency to consider all significant aspects of environmental impacts[12] and list reasonable alternatives.[13]

In the case at bar, after three years of planning, BLM released a draft management plan (Plan) and corresponding draft EIS as one document created to guide management of southeastern Oregon for the next twenty years. ONDA’s comments on the draft EIS criticized BLM for failing to inventory lands that had developed wilderness characteristics since BLM’s prior survey of those values in 1980.[14] ONDA also contended that BLM did not consider a reasonable range of alternatives, arguing that the agency failed to account for the cumulative impacts of grazing and the excessive quantity of land left open to ORV use.

After reviewing comments on the draft EIS, BLM released its final version of the Plan and EIS in 2001. In response to ONDA’s comments, BLM noted that it had already taken a wilderness inventory pursuant to 43 U.S.C. § 1782(b)[15] and expressly disclaimed an obligation to analyze the effects of its Plan on wilderness values or consider management options for areas with those characteristics.[16] BLM considered conferring additional protections from development and disruptive uses to several hundred thousand acres of land in areas of critical environmental concern,[17] but such designations were limited and did not imply the presence of wilderness characteristics, much less protect them.

BLM selected the Plan from among seven draft alternatives. With regard to ORV use, the alternatives varied almost entirely by the amount of land allocated between open and limited-use categories. [18] Most notably, BLM never considered closing a significant amount of land to ORVs, nor did it consider an option geared toward protecting wilderness values from ORV use. The most protective limited-use category restricted ORVs to existing routes in WSAs and other sensitive areas and imposed seasonal closures to protect wildlife, but these limitations would still have allowed ORVs to travel up to 150 feet off an existing road in certain circumstances.[19] Every alternative exposed more land to some type of ORV use than was previously permitted. For example, the Plan’s selected alternative opened approximately 20,000 acres of previously closed land to some ORV use.[20] With regard to grazing, only one alternative deemed valid by BLM contemplated substantial restrictions, and BLM did not consider limiting grazing in areas with wilderness characteristics outside of WSAs.

ONDA filed a protest with BLM in December 2001, sounding the same concerns it raised in its comments to the draft EIS. ONDA alleged that BLM’s failure to provide information about and analyze wilderness values “violated NEPA’s requirement that the [BLM] engage in fully-informed decisionmaking.”[21] ONDA also challenged the limited alternatives for grazing management, emphasizing that BLM did not consider cumulative impacts. Finally, ONDA raised concerns that none of the Plan’s alternatives closed more than 0.8% of the planning area to ORV use. BLM denied the protest in September 2002, explaining that its wilderness review duty under the Wilderness Act was a “one-time responsibility” that was fulfilled by its 1991 report.[22] With regard to grazing, BLM responded that the alternatives were adequate because each had different effects over the short- and long-term. With regard to ORV use, BLM stated that its alternatives were adequate because the “limited” designation provided comparable protection to the “closed” designation. BLM adopted the Plan in an April 2003 ROD.

In response, ONDA filed suit against BLM in July 2003. In the meantime, ONDA undertook a survey of the Plan area to document changes that had occurred since 1980. ONDA submitted the results to BLM in February 2004 and introduced it as evidence in the pending suit. The district court expanded its review beyond the April 2003 ROD by admitting the survey because of precedent permitting new evidence “where the plaintiff alleges that an EIS has . . . swept stubborn problems or serious criticism under the rug.”[23] The survey demonstrated how the planning area, especially portions with unmaintained roads, had changed over time, with some reductions in human impacts. Despite the survey’s conclusion that the planning area had changed significantly and the existence of specific data showing more than 1.3 million acres of land outside of WSAs that display wilderness characteristics,[24] BLM did not modify the Plan or take new action.[25]

In its suit, ONDA alleged violations of NEPA, FLPMA, and the Taylor Grazing Act.[26] Both parties moved for summary judgment, and the district court, adopting the magistrate judge’s findings and recommendations, awarded summary judgment to BLM. ONDA timely appealed, and the Ninth Circuit reviewed the district court’s ruling de novo.[27] The Ninth Circuit reviewed BLM’s Plan and EIS under the Administrative Procedure Act (APA)[28] “arbitrary and capricious” standard. Although ONDA also appealed the district court’s rulings on its FLPMA and Taylor Grazing Act claims, the Ninth Circuit limited its opinion to ONDA’s NEPA claims.

The Ninth Circuit began its analysis of whether BLM violated NEPA by failing to inventory and discuss wilderness characteristics in the EIS. NEPA applies broadly to a variety of federal actions that impact the environment and does not contain requirements about substantive elements such as wilderness characteristics. These requirements are derived from the substantive statute compelling the proposed action. In this case, approval of the resource management plan constitutes a federal action and is compelled by FLPMA. ONDA argued that BLM, by declining to analyze wilderness characteristics on non-WSA lands, failed to adequately discuss the Plan’s impacts and alternatives despite ONDA’s comments. BLM responded that wilderness characteristics are only relevant to a one-time duty to survey wilderness areas under 43 U.S.C. § 1782. BLM’s argument was consistent with its position in Utah v. Norton,[29] where it agreed to, among other things, cease establishing, managing, or treating public lands as WSAs or as wilderness without congressional authorization.[30] Although the Utah settlement’s validity depended upon BLM’s compliance with FLPMA and NEPA, BLM and ONDA shared the position that the court need not directly consider the settlement’s legality.

After considering these arguments, the Ninth Circuit held that BLM’s response to ONDA’s concerns failed to satisfy NEPA requirements. The court cited 43 U.S.C. §§ 1712 and 1732 for BLM’s authority, independent of the one-time duty to survey lands with wilderness characteristics under 43 U.S.C. § 1782, to manage resources such as wilderness values. In essence, the court explained “wilderness characteristics retain vitality as a resource category covered by the BLM’s multiple-use land use planning mandate” even where section 1782 review has been completed.[31] The court explained this conclusion by examining 1) the statutory and regulatory structure binding BLM, 2) BLM’s guidance documents and public statements, and 3) case law.

The Ninth Circuit’s contextual interpretation of FLPMA, the Wilderness Act, and corresponding regulations supported the conclusion that BLM is required to address wilderness values in a detailed NEPA analysis. For example, FLPMA and corresponding regulations establish “wilderness characteristics” by referencing the Wilderness Act, and the definition of “wilderness” is the same in both statutes. The court cited BLM’s land-use planning handbook and the BLM’s administrative adjudicative body for recognizing that the characterizations of “wilderness” in FLPMA are identical to those in the Wilderness Act. Based on these cross-referencing definitions, the court concluded the wilderness characteristics concept originates from the statutory framework.

The Ninth Circuit explained that FLPMA’s Wilderness Study provision, which directs BLM to conduct an initial wilderness review to make recommendations for wilderness preservation, does not limit wilderness inventories to the recommendation process.[32] Instead, the Wilderness Study provision references 43 U.S.C. § 1711(a), which provides for a continuous inventory process to reflect new resources and other values.[33] Read together, section 1711(a) and section 1782(a) presume that BLM’s inventory procedure will identify areas with wilderness characteristics, including “new and emerging” areas or those arising from a “change in conditions.”[34] It also follows that wilderness characteristics are equivalent to “resource and other values” recognized under section 1711(a). Thus, the Ninth Circuit reasoned that BLM must manage wilderness characteristics as one aspect of its broad authority under its multiple-use management and planning mandate.

After recognizing BLM’s duty under FLPMA to consider wilderness characteristics, the court outlined several management methods that BLM could employ to fulfill its responsibilities of managing lands for wilderness values as part of multiple-use management. These suggestions included 1) enacting limitations on extractive uses, 2) reducing levels of potentially destructive grazing or ORV uses, 3) designating lands as areas of critical environmental concern or research natural areas, and 4) implementing a temporary nonimpairment policy. The court recognized that as long as BLM gave adequate consideration to wilderness characteristics during the planning process, it could implement a management plan that did not aspire to long-term wilderness preservation.

BLM’s public guidance documents supported the Ninth Circuit’s understanding that FLPMA instructs BLM to manage wilderness values of lands and corresponding duties to discuss such resources in NEPA documentation. The BLM’s 2005 Land Use Planning Handbook (2005 Handbook) acknowledged a continuing authority to manage lands with wilderness characteristics in land-use plans.[35] The 2005 Handbook also
recognized a duty to include analysis of wilderness characteristics, as appropriate, in EIS documentation.[36]

The Ninth Circuit also cited case law in support of its conclusion that BLM should have considered wilderness characteristics, particularly the roadless character of such lands, in its NEPA analysis. The court premised that roadlessness and wilderness were nearly inseparable considerations, because roadlessness is essential to fulfilling the “natural conditions” component of “wilderness” as defined in the Wilderness Act.[37] Then, the court compared circuit cases discussing roadlessness. In Smith v. United States Forest Service,[38] the Ninth Circuit rejected the Forest Service’s argument, analogous to that made by BLM, that it lacked a duty to discuss roadlessness in its NEPA documents, and held that roadlessness has an environmental significance that must be analyzed in NEPA documents.[39] In 2007, the Ninth Circuit applied Smith’s holding to noninventoried areas greater than 5000 acres and inventoried areas smaller than 5000 acres.[40] The court reasoned that if roadlessness, a significant feature of wilderness, merited NEPA consideration on Forest Service land, wilderness characteristics on BLM land similarly warranted NEPA documentation.

BLM advanced three counter-arguments that failed to persuade the Ninth Circuit. First, BLM argued that the United States Supreme Court’s holding in Norton v. Southern Utah Wilderness Alliance (SUWA)[41] limiting suits under the APA barred review of BLM’s failure to consider wilderness characteristics. Second, BLM argued that a ruling for ONDA about wilderness characteristics would violate the Supreme Court’s holding in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (Vermont Yankee).[42] Third, BLM argued that its analysis of other resources incidentally benefited wilderness values, and that the Ninth Circuit should defer to its NEPA methodology.

The Ninth Circuit disregarded BLM’s argument that SUWA applied to ONDA’s challenge because the case arose from a different provision of the APA. SUWA held that under section 706(1) of the APA a plaintiff must assert that an agency failed to take a discrete, required action.[43] BLM argued that a duty to inventory wilderness characteristics was not discrete. However, ONDA’s claim arose under section 706(2)(A), challenging BLM’s actions as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The court referenced more than a dozen cases for the proposition that the process of finalizing an EIS as a ROD constituted a final agency action, subject to review under section 706(2)(A). Thus, the court reviewed “the validity of the final action that was taken, not-as in SUWA-demanding that the agency take some action that it has not taken.”[44] The court explained that a contrary holding would make it difficult for a plaintiff to challenge an agency’s analytic errors under NEPA, because there is often no discrete duty required by statute to consider a specific issue. Under arbitrary and capricious review, an agency must consider nondiscrete issues of environmental significance before committing to a major federal action.

The Ninth Circuit rejected BLM’s argument that Vermont Yankee applied to ONDA’s challenge. In Vermont Yankee, the Supreme Court held that courts cannot use NEPA to substantially revise an agency’s procedural obligations under the APA or impose the court’s notion of which procedures are superior.[45] The Ninth Circuit reasoned that its holding required only direct compliance with NEPA’s EIS requirement and did not create any extra procedural requirements. In rejecting the relevance of Vermont Yankee, the Ninth Circuit emphasized that BLM, on remand, could decide how to fulfill its NEPA obligations regarding consideration of wilderness characteristics.

The Ninth Circuit also rejected BLM’s argument that its NEPA analysis of other resources incidentally contemplated the Plan’s effects on wilderness characteristics. The court viewed this argument as an unacceptable “post hoc rationalization”[46] because BLM did not articulate this position in the EIS. The Ninth Circuit also criticized the premise of BLM’s argument, which depicted wilderness characteristics as a “nebulous term.”[47] The court warned that developing a “proxy methodology” may fail to provide adequate disclosure of wilderness values present on BLM land.[48] Finally, because BLM lacked a method of analyzing or managing wilderness values, the court reasoned that it owed no deference to the BLM methodology, stating “[w]e cannot defer to a void.”[49]

Basing its conclusions on the statutes, regulations, guidance documents, and case law, the Ninth Circuit ruled against BLM on the wilderness values issue. The court held that 1) BLM had continuing authority to manage wilderness characteristics under FLPMA, wholly distinct from the agency’s duty to survey the land for wilderness preservation recommendations, 2) BLM violated NEPA by failing to properly respond to ONDA’s comments and provide a “full and fair discussion” about wilderness values in the EIS, and 3) BLM violated NEPA by failing to consider cumulative impacts on the planning area, because it did not consider impacts on lands with wilderness characteristics.

Next, the Ninth Circuit addressed ONDA’s other NEPA arguments pertaining to BLM’s alternatives analyses for grazing and ORV management. Citing Westlands Water District v. Department of Interior,[50] the court reasoned that “[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.”[51] With regard to both issues, the Ninth Circuit reasoned that BLM’s analysis of wilderness values on remand could lead to more adequate alternatives, but the court specifically held that BLM should consider an alternative that closed significant portions of land.

The Ninth Circuit did not decide whether BLM’s grazing alternatives were deficient. ONDA argued that BLM’s consideration of only one option that reduced grazing area and intensity amounted to a failure to adequately explore the balance between development and wilderness use.[52] The court reasoned that BLM, in its consideration of lands with wilderness values, would have the opportunity to “address the bias towards grazing” and produce more adequate alternatives.[53]

The Ninth Circuit ruled that BLM’s ORV use alternatives failed to provide the agency or public with a proper consideration of options. First, wilderness characteristics did not factor into BLM’s analysis of its ORV designations. Second, the court observed that no ORV alternative proposed closing more than a fraction of the planning area to ORVs and each alternative reduced the amount of areas that were previously closed to such use. The court disagreed with BLM’s argument that a wide range of open and limited ORV designations paired with emergency closure provisions was adequate, bluntly stating that limited use is “not identical” to no use.[54] The court specifically criticized the limitation to existing routes designation that permitted ORV use up to 150 feet off trails. Finally, the Ninth Circuit concluded that BLM must consider closing significant portions of land, especially those with wilderness characteristics.

In conclusion, the Ninth Circuit held that the EIS was invalid under NEPA because it did not address concerns about wilderness characteristics and also lacked alternatives that closed significant portions of the planning area to ORV use. The Ninth Circuit set aside BLM’s ROD approving the Plan and accompanying EIS and remanded the case to the district court with instructions for further remand to the BLM.

^[1] Committee for the High Desert and Western Watersheds Project joined in the suit but did not join ONDA in commenting on BLM’s draft environmental impact statement.

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

^[3] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2006).

^[4] Id. § 1712(c).

^[5] 43 C.F.R. § 1610.2 (2007).

^[6] Id. § 1610.5-2(a).

^[7] 16 U.S.C. §§ 1131-1136 (2006).

^[8] 43 U.S.C. § 1782(b) (2006).

^[9] Id. § 1711.

^[10] 43 C.F.R. § 1601.0-6 (2007).

^[11] 42 U.S.C. § 4332(C) (2006).

^[12] Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 781 (9th Cir. 2006); see also 40 C.F.R. pt. 1502 (2007).

^[13] 40 C.F.R. § 1502.14 (2007).

^[14] After identifying 32 WSAs in the planning area and completing a final EIS, BLM submitted its recommendations to the President, advising permanent preservation for 21 WSAs, and in 1992, the President submitted these recommendations to Congress. Congress has not acted on these recommendations.

^[15] 3 Bureau of Land Mgmt., U.S. Dep’t of the Interior, Proposed Southeastern Oregon Resource Management Plan and Final Environmental Statement 105 (2001), available at http://www.blm.gov/or/districts/vale/plans/files/seormp/SEORMP%20Final%20Volume%203%
20Text.pdf [hereinafter FEIS].

^[16] The Plan did consider two management possibilities for approximately 3000 acres of land adjacent to WSAs created pursuant to its recommendations to Congress. 1 FEIS, supra note 443, at 373-75.

^[17] Id. at 276-368; see also Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1712(c)(3) (2006).

^[18] 1 FEIS, supra note 15, at xxii, 269-73.

^[19] Id. at 273.

^[20] Id. at xxii, 269-73.

^[21] Or. Natural Desert Ass’n v. BLM (ONDA), 531 F.3d 1114, 1127 (9th Cir. 2008).

^[22] Id. at 1127.

^[23] Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir. 1997).

^[24] Or. Natural Desert Ass’n, Wilderness Inventory Recommendations: Vale District (2004).

^[25] BLM did not appeal the admission of ONDA’s survey. The Ninth Circuit described the survey “without expressly approving or disapproving of its particular findings” but rather “to demonstrate how the presence of wilderness values may change over time and how wilderness characteristics may have been reestablished in parts of the area covered by the Southeast Oregon Plan.” ONDA, 531 F.3d at 1128.

^[26] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 315-315o-1 (2006).

^[27] Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 992 (9th Cir. 2004).

^[28] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006). The arbitrary and capricious standard is at section 706(2)(A).

^[29] No. 2:96-CV-0870, 2006 WL 2711798 (D. Utah Sept. 20, 2006); see also Utah v. Norton, 396 F.3d 1281, 1284-85 (10th Cir. 2005).

^[30] Norton, 2006 WL 2711798, at *4.

^[31] ONDA, 531 F.3d 1114, 1136 (9th Cir. 2008).

^[32] Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1782(a) (2006).Note that section 1782(a) references section 1711(a)’s required inventory, but does not direct that areas with wilderness characteristics be identified only as part of recommending such areas for “preservation as wilderness.”

^[33] Id. § 1711(a).

^[34] ONDA, 531 F.3d at 1134.

^[35] Bureau of Land Mgmt., U.S. Dep’t of the Interior, Land Use Planning Handbook app. C, at 1, 12 (2005) [hereinafter 2005 Handbook]; see also id. app. F, at 7.

^[36] See id. app. F, at 16. Noting a discrepancy between BLM’s appellate briefs and the agency’s guidance documents, the court relied on the latter, reasoning that the guidance documents were well-reasoned, persuasive, and consistent with the Ninth Circuit’s interpretation of the statutes in question.

^[37] Wukderbess Act, 16 U.S.C. § 1131(c) (2006).

^[38] 33 F.3d 1072 (9th Cir. 1994).

^[39] Id. at 1078.

^[40] Lands Council v. Martin, 479 F.3d 636, 640 (9th Cir. 2007).

^[41] 542 U.S. 55 (2004).

^[42] 435 U.S. 519 (1978).

^[43] SUWA, 542 U.S. at 64.

^[44] ONDA, 531 F.3d. 1

Friends of Yosemite Valley v. Kempthorne

Posted on October 13, 2009 by Environmental Law

Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively Friends) sued the National Park Service (NPS) in the United States District Court for the Eastern District of California, alleging NPS management of the Merced River violated the Wild and Scenic Rivers Act (WSRA),[1] the National Environmental Policy Act (NEPA),[2] the Administrative Procedure Act (APA),[3] and previous Ninth Circuit decisions concerning management of the river.[4] The Ninth Circuit affirmed the district court’s order granting partial summary judgment in favor of the plaintiffs. The Ninth Circuit held that the 2005 Revised Comprehensive Management Plan (RCMP) violated the WSRA and previous court rulings because it was not a single, comprehensive document and because it failed to describe an actual level of visitor use that would not adversely impact the Merced River. The court also held that the supplemental environmental impact statement (SEIS) violated NEPA because it lacked a no-action alternative and because its range of action alternatives was unreasonably narrow. The court remanded the case for action consistent with its opinion.[5]

Congress designated sections of the Merced River for inclusion in the Wild Scenic River System in 1987, including parts flowing through Yosemite National Park and its administrative site, El Portal.[6] Congress enacted the WRSA in 1968 “out of concern for the preservation of United States rivers, many of which had been subjected to overdevelopment and damming.”[7] The WSRA framework uses specific “outstandingly remarkable values” (ORVs) to justify initial designations of rivers[8] and also provides standards for evaluating the compatibility of proposed projects with the protection and enhancement of the ORVs of designated rivers.[9] Following designation, administering agencies must establish river boundaries and classify the river or its segments within one year and prepare a comprehensive management plan (CMP) that addresses “resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the [WSRA's] purposes” within three years.[10] In pursuit of interdepartmental consistency, the Agriculture and Interior departments issued joint WSRA interpretative guidelines in 1982. The Final Revised Guidelines for Eligibility, Classification and Management of River Areas (Secretarial Guidelines) require the CMP to contemplate the kinds and amount of public use, including recreation, that each river can sustain without adverse affect on its ORVs.[11]

NPS was statutorily required to prepare and adopt a valid CMP within three years of the Merced’s wild and scenic designation in 1987, but the agency failed to meet this deadline and litigation ensued. After being ordered by the district court to issue a CMP for the Merced,[12] NPS complied in 2000, more than twelve years after the CMP was due. In 2003, the Ninth Circuit held the 2000 CMP failed to adequately address user capacities and improperly drew the boundaries of the Merced River at El Portal.[13] After clarifying its 2003 decision, the Ninth Circuit remanded the case to the district court, granted a temporary stay of proceedings, and enjoined NPS from implementing projects developed in reliance on the invalid CMP.[14] On remand, the district court ordered NPS to complete a new or revised CMP and an SEIS.[15]

After public scoping and review, NPS issued its 2005 revised plan (RCMP), which Friends challenged under the WRSA, NEPA, the APA, and as violating the Ninth Circuit’s earlier opinions. The Ninth Circuit reviewed NPS’s appeal from the district court’s grant of plaintiff’s motion for summary judgment de novo.[16] Thus, the court reviewed NPS’s action under the APA, allowing the court to set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[17] More specifically, the Ninth Circuit required NPS to demonstrate a “rational connection” between the data described and decisions made.[18] Applying this standard of review, the Ninth Circuit affirmed the district court’s holdings regarding the RCMP’s deficiencies in addressing user capacities and serving as a single, comprehensive plan, as well as the failure of the SEIS to provide a “no action” alternative and a reasonable range of action alternatives.

The Ninth Circuit had previously instructed NPS to adopt specific limits on user capacity that “describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.”[19] In response to this order, the RCMP revised the 2000 Visitor Experience and Resource Protection (VERP) program to address this instruction. On appeal, NPS argued that the RCMP promulgated measurable limits on user capacities in 1) the Wilderness Trailhead Quota System and Superintendent’s Compendium limits, 2) the VERP indicators and standards, and 3) the User Capacity Management Program’s interim limits. The Ninth Circuit first dismissed NPS’s reliance on the Wilderness Trailhead Quota System limits on overnight users in the wilderness area and the Superintendent’s Compendium limits on time and location of specific activities because both methods predated the RCMP. Then, the court addressed NPS’s remaining arguments in greater detail.

The Ninth Circuit affirmed the district court’s finding that VERP failed to address user capacities, holding that it was reactive and not oriented toward preventing degradation. The VERP program’s description of indicators and standards to monitor and maintain was reactive because it did not “describe an actual level of visitor use that will not adversely impact the Merced’s ORVs.”[20] NPS argued that the VERP monitoring triggers could spur action prior to degradation. However, the Ninth Circuit criticized the permissive language of the RCMP regarding management action and stated that VERP standards must trigger management before degradation occurs, instead of allowing action when conditions approach the standard.

The Ninth Circuit also affirmed the district court’s conclusion that the RCMP’s interim limits restricting the kinds and amounts of visitor use for five years during VERP program testing failed to “describe an actual level of visitor use that will not adversely affect” the Merced River.[21] The court rejected NPS’s argument that holding facility levels to 1987 levels was reasonable, noting that such an argument lacked authority. Under WSRA’s “protect and enhance” command,[22] the court reasoned NPS had a responsibility to address past degradation, including the degradation that existed in 1987, as well as ongoing degradation. The court concluded that the multitude of recreational facilities and services at the Merced failed to be “river-related or river dependant” and “rare, unique, or exemplary in a regional or national context,” both of which were required elements of establishing recreation as an ORV.[23] The Ninth Circuit also reasoned that the interim limits violated the statutory command of WSRA by failing to demonstrate a “primary emphasis” on the protection of the Merced.[24] Finally, the court concluded that the origin of the interim limits in the current capacity limits lacked a rational connection with facts found.[25]

Next, the Ninth Circuit affirmed the district court’s finding that NPS failed to produce a single, comprehensive plan that covered all required elements, including the “kinds and amounts of public use which the river area can sustain.”[26] The Ninth Circuit affirmed the district court’s rejection of a December 2005 “Presentation Plan” that integrated the CMP and RCMP because it lacked public review and contradicted the RCMP’s status as the final revised plan. In stressing its single-plan requirement, the court rejected the issuance of the RCMP as a supplemental volume that cross-referenced the original CMP. Substantively, the court held the RCMP was not comprehensive because, although it addressed the “amounts” of use, it failed to also address the “kinds” of permissible use. Finally, the Ninth Circuit rejected NPS’s argument that both the district court and appellate court unlawfully assumed responsibility for revising the 2000 CMP.[27] Instead, the Ninth Circuit concluded that each court properly entered a judgment on the issues and remanded the revisions to NPS for reconsideration.

Finally, the Ninth Circuit affirmed the district court’s holding that NPS violated NEPA because the SEIS was invalid for lacking a no-action alternative and a reasonable range of action alternatives. The no-action alternative proposed managing the Merced River corridor under the CMP. Thus, the alternative referenced a “status quo” management that had already been rejected,[28] and the only basis for the no-action alternative rested in the RCMP’s incorporation of the CMP’s elements. The Ninth Circuit reasoned that approving a baseline alternative on the assumption of a proposed plan’s validity was “logically untenable.”[29]

The Ninth Circuit used the “rule of reason” standard in affirming the district court’s determination that the SEIS lacked a reasonable range of action alternatives. Each of the three action alternatives in the SEIS was based on the VERP program, which failed to adequately address user capacity, even though NPS, from its meeting notes, acknowledged the need for reasonable range of user capacity alternatives. Additionally, the Ninth Circuit reasoned that because each action alternative proposed five-year interim limits consistent with current use, the alternatives were essentially identical. Even though two alternatives included maximum use levels and annual visitation limits, the court held the SEIS violated NEPA because the similar alternatives were not sufficiently varied to provide for a genuine, informed choice.

In conclusion, the Ninth Circuit held that the RCMP violated WSRA and Ninth Circuit precedent because it was not a single, comprehensive document that described the actual level of use that would not adversely impact the Merced River. Furthermore, the court held that the agency’s SEIS violated NEPA because it lacked a genuine no-action alternative and its range of action alternatives were indistinguishable. The court remanded the case to the district court for proceedings consistent with its opinion.

^[1] 16 U.S.C. §§ 1271-1287 (2006).

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

^[3] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[4] The Ninth Circuit reviewed a previous comprehensive management plan for the Merced River in 2003, Friends of Yosemite Valley v. Norton (Yosemite I), 348 F.3d 789 (9th Cir. 2003),and clarified the opinion in 2004 in Friends of Yosemite Valley v. Norton (Yosemite II), 366 F.3d 731 (9th Cir. 2004).

^[5] The Ninth Circuit dismissed NPS’s interlocutory appeal from the district court’s order enjoining nine projects in the Merced River Corridor because the agency failed to address the injunction issue in its appellate briefs, and thus its arguments were deemed waived. E.g., Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Miller v. Fairchild Indus. Inc., 797 F.2d 727, 738 (9th Cir. 1986).

^[6] See Pub. L. No. 100-149, 101 Stat. 879 (Nov. 2, 1987) (codified at 16 U.S.C. § 1274(a)(62)(A) (2006)).

^[7] Friends of Yosemite Valley v. Kempthorne (Yosemite III), 520 F.3d 1024, 1027 (9th Cir. 2008).

^[8] Wild and Scenic Rivers Act, 16 U.S.C. § 1271 (2006).

^[9] Id. § 1281(a).

^[10] Id. § 1274(d)(1).

^[11] Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454, 39,458-59 (Sept. 7, 1982) [hereinafter Secretarial Guidelines].

^[12] Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1263 (E.D. Cal. 1999).

^[13] Yosemite II, 366 F.3d 731 (9th Cir. 2004)(clarifying 2003 Yosemite I decision).

^[14] Id.

^[15] Id.The district court also enjoined certain projects until completion of the new or revised CMP.

^[16] Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999) (citation omitted).

^[17] Yosemite III, 520 F.3d 1024, 1032 (9th Cir. 2008)(quoting Yosemite I, 348 F.3d 731, 793 (9th Cir. 2003)).

^[18] Id.(quoting Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1020 (9th Cir. 2003)). With regard to environmental impact statements (EISs), the Ninth Circuit applied a “rule of reason” standard that evaluates whether an EIS “contains a reasonably thorough discussion of the significant aspects of the environmental consequences.” Yosemite I, 348 F.3d 789, 800 (9th Cir. 2003).The court equated this standard with the “abuse of discretion” standard. Id.

^[19] Yosemite I, 348 F.3d at 797.This is the Ninth Circuit’s interpretation of 16 U.S.C. § 1281(a)and the Secretarial Guidelines, supra note 561, at 39, 458-59.

^[20] Yosemite III, 520 F.3d at 1034(quoting standard set forth in Yosemite I, 348 F.3d at 797).

^[21] Id.

^[22] Wild and Scenic Rivers Act, 16 U.S.C. § 1281(a) (2006).

^[23] Yosemite III, 520 F.3d at 1035 n.5.

^[24] See id. § 1281(a) (requiring that administration of rivers designated under WSRA place “primary emphasis” on a river’s “esthetic, scenic, historic, archeologic, and scientific features”).

^[25] The Ninth Circuit’s earlier decision in High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630 (9th Cir. 2004),emphasized some of the problems with maintaining use at existing levels. In that case, the court concluded continuance of existing use levels at best “failed to balance the impact that that level of commercial activity was having on the wilderness character of the land” and at worst “elected recreational activity over the long-term preservation of the wilderness character of the land.” Id. at 647.

^[26] Final Revised Guidelines for Eligibility, Classification and Management of River Areas, 47 Fed. Reg. 39,454, 39,458-59 (Sept. 7, 1982).

^[27] In support of its argument, NPS cited Federal Power Commission v. Idaho Power Co., 344 U.S. 17 (1952), which explains “the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the [agency] for reconsideration.” Id. at 20.

^[28] Yosemite II, 366 F.3d 731, 731 (9th Cir. 2004).

^[29] Yosemite III, 520 F.3d 1024, 1038 (9th Cir. 2008).

Fall River Rural Electric Cooperative v. Federal Energy Regulatory Commission

Posted on October 13, 2009 by Environmental Law

Fall River Rural Electric Cooperative (Fall River) petitioned the Ninth Circuit for review of two orders issued by the Federal Energy Regulatory Commission (FERC) in response to Fall River’s license application to construct and operate a new hydroelectric power facility on the Madison River in Montana. In denying Fall River’s application and request to hold the proceedings in abeyance, as well as Fall River’s request for a rehearing, FERC concluded the proposed project was barred by section 6 of the Federal Power Act (FPA).[1] The Ninth Circuit denied Fall River’s petition for review, finding substantial evidence in support of FERC’s factual determination under the FPA, and concluding FERC’s orders were consistent with the agency’s precedent and regulations.

Hebgen Dam, a water storage and release facility, is one of nine developments that comprise the Missouri-Madison Hydroelectric Project on a 324-mile stretch of river in southwest Montana. The project is licensed by FERC to Pennsylvania Power & Light Montana (PPL). In 2001, FERC granted Fall River a preliminary permit to determine the feasibility of constructing and operating a hydroelectric facility at Hebgen Dam. PPL did not object to the preliminary permit and entered into negotiations with Fall River regarding a possible site use and operations agreement. Fall River submitted its final license application for the proposed Hebgen Dam project in May 2004. The application proposed several changes and additions to the existing Hebgen Dam, which included the construction of a new powerhouse and several modifications to the existing structure of the dam.[2] Fall River estimated that construction would take approximately three months.

Under section 6 of the FPA, FERC cannot substantially alter existing, licensed projects without the consent of the licensee.[3] In light of section 6 of the FPA, FERC initially agreed to continue processing Fall River’s final license application based on the understanding that Fall River and PPL were actively negotiating an agreement for the construction and operation of the proposed facility. After PPL terminated all negotiations with Fall River, however, FERC dismissed Fall River’s license application. Upon review, FERC concluded section 6 of the FPA barred the proposal because the project would substantially alter PPL’s licensed project, and Fall River did not obtain the requisite consent from licensee PPL. FERC also denied Fall River’s request to hold the application in abeyance because PPL expressed no intent to resume negotiations with Fall River. Subsequently, a three-person panel of FERC commissioners denied Fall River’s request for rehearing, concluding the project required substantial physical alterations and would create potential operating problems related to the joint-use of the Hebgen Dam site.

In its petition for review, Fall River argued that 1) FERC’s orders denying its license application and request to hold the proceedings in abeyance were not supported by substantial evidence, 2) FERC’s decision was inconsistent with the agency’s precedent, regulations, and issuance of a preliminary permit, and 3) FERC failed to consider whether PPL impliedly consented to the project. The Ninth Circuit reviewed FERC’s decision under the Administrative Procedure Act (APA)[4] to determine whether FERC’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.[5] When FERC’s findings are supported by substantial evidence, the Ninth Circuit accepts FERC’s factual findings as conclusive.[6]

Reviewing Fall River’s petition, the Ninth Circuit first rejected Fall River’s contention that its proposal would not materially alter PPL’s existing project works, operations, or power generation. The court noted that an “alteration” under section 6 of the FPA is a factual issue determined on a case-by-case basis,[7] but Fall River and FERC agreed that to violate the FPA, a “proposed project must substantially alter an existing license.”[8] FERC concluded that Fall River’s project involved substantial physical alterations to the existing facility, including installation of new gates on the intake tower, excavation of a large area of the dam, reconfiguration of the outlet conduit, and installation of a valve house and new penstock. FERC also determined the “potential for ‘joint-use operational problems [between PPL and Fall River] would be a substantial alteration of the existing license.’”[9] The Ninth Circuit explained that such actions “fundamentally change the physical characteristics and operation of the Hebgen Development,” and that “Fall River apparently [did] not appreciate the cumulative impact of its proposed project.”[10] Accordingly, the Ninth Circuit concluded that FERC’s factual findings regarding the physical alterations and operational interference were supported by substantial evidence.

The court next considered whether FERC’s decision on Fall River’s application was consistent with the agency’s prior precedent. First, the Ninth Circuit examined FERC’s analysis of three cases where the agency found the applicant proposed a substantial alteration to existing licenses.[11] In Niagara Mohawk Power Corporation,[12] FERC rejected a license application to modify an existing development because the project required significant construction and alterations of the existing licensed project, which would effectively lead to the closure of the original facility.[13] The Ninth Circuit reasoned that Fall River’s proposal likewise required “more than an insubstantial amount of construction.”[14] In a second case, FERC denied an application that proposed modifying an existing dam and powerhouse because it involved significant structural modifications to the project dam and project works adjacent to the dam.[15] Although Fall River did not ask to modify an existing powerhouse, the Ninth Circuit determined Fall River hoped to construct a new powerhouse and make other alterations to the Dam. Finally, FERC considered the case of Green Island Power Authority (Green Island),[16] in which a proposal to construct a new dam was denied because it would render an existing project inoperable.[17] In examining Green Island, the Ninth Circuit concluded FERC only used Green Island as an “extreme example of a substantial alteration” and did not imply that Fall River’s proposal needed to be as extreme as the Green Island proposal to amount to a substantial alteration.[18]

The Ninth Circuit also reviewed FERC’s evaluation of earlier decisions where the agency found no substantial alteration to existing licenses. In Water Basin Water Conservancy District,[19] FERC found no substantial alteration to a license to construct a penstock under an existing canal because construction was only expected to take three to seven days and would result in no physical interference to prior licensees once finished.[20] In contrast, the Ninth Circuit determined Fall River’s construction project was expected to take eight months and would “fundamentally alter the flow of water through Hebgen Dam.”[21] Additionally, in Howard W. Bair,[22] FERC granted a preliminary permit that proposed extending an existing pipe by forty feet.[23] The Ninth Circuit distinguished Bair, concluding Bair involved only a preliminary permit and small-scale changes, whereas Fall River’s proposals were “far more extensive.”[24] Finally, in two prior cases, FERC concluded that a 0.3% reduction in power generation did not constitute a substantial alteration.[25] Fall River argued that similarly, its proposed project would not reduce power generation at Hebgen Dam. However, the Ninth Circuit noted that while power generation would not be reduced at Hebgen Dam,[26] the two earlier cases were distinguishable because they lacked “physical modifications comparable to those now proposed by Fall River.”[27] Reviewing the two lines of prior precedent, the Ninth Circuit concluded FERC’s orders regarding Fall River were consistent with the agency’s past decisions and therefore entitled to deference.

The court next considered Fall River’s assertion that FERC’s orders were inconsistent with its regulations and the agency’s issuance of a preliminary permit. Fall River argued that because its final license application was substantially identical to the preliminary application granted by FERC, FERC’s denial of its final license application constituted a change in policy that required a reasoned explanation.[28] The Ninth Circuit noted that FERC’s practice is to issue preliminary permits unless there is a clear indication that a project would involve impermissible alterations to an existing license, [29] or there is a “permanent legal barrier” to the proposed project.[30] Further, FERC’s issuance of a preliminary permit does not indicate the agency made a decision on the merits of a license application.[31] In rejecting Fall River’s argument, the Ninth Circuit concluded FERC’s orders were consistent with its regulations because it was not clear at the time of the preliminary permit application that Fall River’s project would substantially alter PPL’s license, nor was there any indication that a permanent legal barrier would preclude issuance of the final permit.

Lastly, the Ninth Circuit rejected Fall River’s argument that FERC failed to consider whether PPL impliedly consented to the project. The court found no basis to require FERC to thoroughly analyze each and every argument in its decision-making process, particularly in Fall River’s case because section 6 of the FPA “unequivocally” states that FERC may only alter a license if the licensee consents to the change. Further, Fall River did not cite any cases showing there could be an implied agreement by the licensee to the permit changes. Finally, the court deemed the consent argument waived because Fall River did not specifically argue the issue in its opening brief.

In sum, the Ninth Circuit denied Fall River’s petition for review. The court concluded that substantial evidence supported FERC’s determination that the proposal would substantially alter PPL’s license, that FERC’s orders were consistent with the agency’s precedent and issuance of a preliminary permit, and that PPL did not impliedly consent to Fall River’s proposal.

^[1] 16 U.S.C. § 799 (2006).

^[2] Fall River’s proposed modifications to the Hebgen Development included 1) constructing a powerhouse with a single turbine generator unit downstream from the dam, 2) strengthening the conduit to withstand the full reservoir pressure for power generation through pressure grouting and steel lining, 3) bifurcating the conduit, 4) installing a steel penstock to direct the water flow to the new powerhouse, 5) erecting a new power transmission line, and 6) modifying the dam to use all four-instead of only two-of the existing intake tower openings. Fall River Rural Elec. Coop. v. FERC, 543 F.3d 519, 522-23 (9th Cir. 2008).

^[3] Section 6 of the FPA states that “[l]icenses . . . may be altered . . . only upon mutual agreement between the licensee and the Commission,” thus requiring that the licensee, in this case PPL, consent to any proposed alterations. 16 U.S.C. § 799 (2006).

^[4] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[5] See id. § 706(2);Cal. Dep’t of Water Res. v. FERC, 489 F.3d 1029, 1035 (9th Cir. 2007).

^[6] See 16 U.S.C. § 825l(b) (2006); Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir. 2003).

^[7] Universal Elec. Power Co., 92 F.E.R.C. ¶ 61,242, 61,768 (2000).

^[8] Fall River Rural Elec. Coop. v. FERC, 543 F.3d 519, 525 (9th Cir. 2008) (emphasis added).

^[9] Id. at 527.

^[10] Id.

^[11] Id. at 529.

^[12] 29 F.E.R.C. ¶ 61,005 (1984).

^[13] Id. ¶ 61,010.

^[14] Fall River Rural Elec. Coop., 543 F.3d at 528.

^[15] JDJ Energy Co., 41 F.E.R.C. ¶ 61,354 (1987).

^[16] 110 F.E.R.C. ¶ 61,034 (2005).

^[17] Id. ¶ 61,108.

^[18] Fall River Rural Elec. Coop., 543 F.3d at 528.

^[19] 50 F.E.R.C. ¶ 61,409 (1990).

^[20] Id. ¶ 62,263.

^[21] Fall River Rural Elec. Coop., 543 F.3d at 529.

^[22] 20 F.E.R.C. ¶ 61,092, (1982).

^[23] Id. 61,194.

^[24] Fall River Rural Elec. Coop., 543 F.3d at 529.

^[25] See Pac. Gas & Elec. Co. v. FERC, 720 F.2d 78, 89 (D.C. Cir. 1983); Fluid Energy Systems, Inc., 24 F.E.R.C. ¶ 61,298, 61,615 (1983).

^[26] Hebgen Dam lacked existing power generating facilities, so the addition of a new power generating facility could only increase the amount of power generated at the dam.

^[27] Fall River Rural Elec. Coop., 543 F.3d at 529.

^[28] See Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 886 (9th Cir. 1992) (noting that “changes in agency interpretation must be supported by a ‘reasoned analysis’”).

^[29] See Kamargo Corp., 53 F.E.R.C. ¶ 61,411, 62,439 (1990).

^[30] Town of Summersville v. FERC, 780 F.2d 1034, 1038-39 (D.C. Cir. 1986).

^[31] Id.

American Bird Conservancy v. Federal Communications Commission

Posted on October 13, 2009 by Environmental Law

Plaintiffs[1] (collectively American Bird) brought an action under the citizen-suit provision of the Endangered Species Act (ESA),[2] challenging a decision by the Federal Communications Commission (FCC) to issue licenses for seven communications towers in Hawaii. The United States District Court for the District of Hawaii dismissed the case for lack of subject matter jurisdiction and American Bird appealed. The Ninth Circuit affirmed, holding the court of appeals has exclusive subject matter jurisdiction over actions pertaining to FCC orders under the Communications Act[3] and the Hobbs Act[4].

Operators of seven communications towers in Hawaii submitted registration applications to the FCC between 1996 and 2001. During the registration process, all seven applicants answered “no” when asked if FCC’s grant of the application may have a significant environmental impact, a response that automatically ended the FCC inquiry into the environmental effects produced by the communications towers. The FCC granted all seven applications. In 2004, American Bird filed a “Petition for National Environmental Policy Act Compliance” with the FCC and a “Notice of Violations Under the Endangered Species Act” with the Secretary of the Interior, alleging the towers were killing two seabird species protected by the ESA: the Hawaiian petrel and the Newall’s shearwater. American Bird contended the FCC had failed to comply with its statutory obligation under the ESA to consult with the Secretary before granting the applications[5] and sought to compel the FCC to examine the issue more closely.

In addition to the administrative challenge, American Bird also filed suit against the FCC in district court under the citizen-suit provision of the ESA.[6] American Bird alleged the FCC had not complied with its ESA-mandated consultation duty when it granted the registrations and sought to enjoin the FCC from impermissibly delegating its ESA responsibilities by allowing tower operators to determine the effects of communications towers on threatened and endangered seabirds.

The Communications Act and the ESA provide different jurisdictional routes for parties seeking judicial review of agency actions. Accordingly, the FCC moved to dismiss the suit for lack of subject matter jurisdiction, arguing that American Bird was challenging an “order of the Commission” within the meaning of section 402 of the Communications Act,[7] which, in conjunction with section 2342 of the Hobbs Act,[8] vests the federal courts of appeals with exclusive subject matter jurisdiction over actions to “enjoin, set aside, annul, or suspend any order” of the FCC.[9] The FCC argued that this specific jurisdictional provision trumps the more general citizen-suit provision of the ESA, which grants district courts jurisdiction over suits by “any person . . . to enjoin any person, including the United States . . . who is alleged to be in violation” of the ESA.[10] The district court agreed with the FCC and dismissed the case, and American Bird appealed.

The issue presented to the Ninth Circuit was whether the district court had properly determined it lacked subject matter jurisdiction over American Bird’s claim under the citizen-suit provision of the ESA. The Ninth Circuit began its analysis by examining the language of the statutes. The Communications Act provides that any proceeding to “enjoin, set aside, annul, or suspend any order of the Commission . . . shall be brought as provided” by the Hobbs Act.[11] The Hobbs Act vests the courts of appeals with “exclusive jurisdiction” to review “all final orders of the Federal Communications Commission.”[12] Together these statutes require that any suit challenging a “final order” by the FCC must be brought in the appropriate federal court of appeals. The Ninth Circuit reasoned that a “license” is analogous to an “order” under the structure of the Communications Act and, similarly, a “station license” is sufficiently analogous to a communications tower registration. Consequently, challenges to the FCC’s issuance of tower registrations, as in the case of American Bird,[13] must be brought in the federal court of appeals.

American Bird did not characterize its claim as a challenge to a final order, attempting instead to cast the case as an objection to the FCC’s failure to act and thus elude the jurisdictional requirement of the Communications Act. The Ninth Circuit rejected this characterization, noting the tower registrations are inextricably intertwined with the FCC’s obligation to consult with the Secretary. The court cited two Ninth Circuit decisions that similarly declined to permit a plaintiff to bypass an exclusive avenue of judicial review through “artful” pleading.[14] In California Save Our Streams Council, Inc. v. Yeutter,[15] the Ninth Circuit had held that “when two jurisdictional statutes draw different routes of appeal, the well-established rule is to apply only the more specific legislation.”[16] In that case, plaintiffs challenged a licensing decision by the Federal Energy Regulatory Commission by filing suit in district court under the general federal question provision. However, because the Federal Power Act[17] provided for exclusive jurisdiction in the courts of appeals for any claim based upon “an order issued by the Commission,”[18] the case was dismissed. Similarly, in Turtle Island Restoration Network v. U.S. Department of Commerce (Turtle Island),[19] plaintiffs invoked the general federal question provision and the Administrative Procedure Act (APA)[20] in alleging violation of various federal environmental laws, despite the existence of an applicable jurisdictional provision in the Magnuson Act.[21] In concluding the district court correctly dismissed the complaint, the Ninth Circuit held that the plaintiff’s claims, though framed in terms of violations of the APA and environmental statutes, were actually challenges to the reopening of the fishery and thus were governed by the Magnuson Act.[22] Like the plaintiffs in California Save Our Streams Council and TurtleIsland, the Ninth Circuit concluded American Bird sought to bypass the regulatory process by characterizing its claims as a challenge to the FCC’s compliance with federal environmental laws rather than to the agency’s final order. The court thus held that, where one statute provides for exclusive jurisdiction in the courts of and the other for general jurisdiction in the district courts, jurisdiction is generally proper in the courts of appeal.

The Ninth Circuit next addressed American Bird’s contention that there are inconsistencies between the ESA’s citizen-suit provision and the exclusive review provisions of the Communications Act and Hobbs Act. Specifically, the ESA requires that a plaintiff must wait sixty days after giving notice of a violation before bringing suit, whereas the Communications Act requires that a plaintiff must bring suit within sixty days. The Ninth Circuit rejected this contention, noting that its decision would not foreclose future judicial review of the licensing issue. In other words, American Bird would be free to pursue its claims through the administrative process by first obtaining an adverse final order from the FCC and then challenging that order in a federal court of appeals.

In sum, the Ninth Circuit affirmed the district court judgment dismissing the case for lack of subject matter jurisdiction.

^[1] Plaintiffs were the American Bird Conservancy, Forest Conservation Council, and Conservation Council for Hawaii.

^[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[3] Communications Act of 1934, 47 U.S.C. §§ 151-614 (2006).

^[4] Administrative Orders Review Act, 28 U.S.C. § 2342 (2006).

^[5] 16 U.S.C. § 1536(a)(3) (2006) (providing that “a Federal agency shall consult with the Secretary” if an applicant for a permit or license “has reason to believe that an endangered species or a threatened species may be present in the area affected by his project”).

^[6]Id. § 1540(g).

^[7] 47 U.S.C. § 402(a) (2006) (establishing judicial review procedure for FCC orders).

^[8] 28 U.S.C. § 2342 (2006) (vesting courts of appeals with “exclusive jurisdiction” to review all “final orders” of the FCC).

^[9] 16 U.S.C. § 1540(g) (2006).

^[10]Id.

^[11] 47 U.S.C. § 402(a) (2006).

^[12] 28 U.S.C. § 2342 (2006).

^[13] Am. Bird Conservancy v. Federal Commc’ns Comm’n, 545 F.3d 1190 (9th Cir. 2008).

^[14]Id. at 1194.

^[15] 887 F.2d 908 (9th Cir. 1989).

^[16]Id. at 911.

^[17] 16 U.S.C. §§ 792-825r (2006).

^[18]Id. § 825l(b).

^[19] 438 F.3d 937 (9th Cir. 2006).

^[20] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[21] Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2006).

^[22]Turtle Island, 438 F.3d at 938.

Alaska v. Federal Subsistence Board

Posted on October 13, 2009 by Environmental Law

The State of Alaska challenged a Federal Subsistence Board (FSB) decision that granted residents of Chistochina, a rural community in Alaska, a customary and traditional use determination (C&T determination) for moose throughout a particular game management unit (GMU). The United States District Court for the District of Alaska granted summary judgment in favor of the federal defendants and defendant-intervenors.[1] On review, the Ninth Circuit affirmed the decision of the district court, holding that substantial evidence supported FSB’s finding, FSB properly considered specific moose populations in granting the C&T determination, and FSB’s decision was not arbitrary and capricious.

Congress enacted the Alaska National Interest Lands Conservation Act (ANILCA)[2] to preserve Alaska’s ecosystems and to provide for the opportunity for rural residents to continue to engage in a subsistence way of life.[3] Through Title VIII of ANILCA, Congress established a subsistence management program that gives priority to subsistence use[4] of fish and wildlife resources on federal public lands.[5] Pursuant to ANILCA, the Secretary of the Interior and the Secretary of Agriculture (collectively Secretaries) promulgated regulations that established a Federal Subsistence Management Program for all federal lands in Alaska.[6] Under the regulations, FSB is responsible for “administering the subsistence taking and uses of fish and wildlife on public lands.”[7] Additionally, FSB “[d]etermine[s] which rural Alaska areas or communities have customary and traditional uses of specific fish and wildlife populations.”[8] In making C&T determinations, regional advisory councils (RACs) assist FSB by gathering and evaluating information from rural communities on regional subsistence uses, and making recommendations to FSB on whether to grant or deny C&T determination proposals.[9] Once a C&T determination is granted, the community may take[10] species from specified fish or wildlife populations using designated methods within the authorized GMU areas in compliance with federal subsistence hunting regulations.[11]

As part of the Federal Subsistence Management Program, the regulations promulgated by the Secretaries divided Alaska into twenty-six GMUs. Chistochina, a community of less than 100 residents, is located in GMU thirteen, between GMUs eleven and twelve. In 2004, Cheesh-na Tribal Council, Chistochina’s governing body, submitted a C&T determination request to FSB for an area in GMU twelve. GMU twelve comprises 10,000 square miles, 59% of which are federal public lands and 40% of which are state lands.[12] Although Chistochina was already included in a C&T determination for moose within one of three areas in GMU twelve, Chistochina requested a C&T determination for moose in the remaining two areas. After receiving recommendations from two RACs and conducting a public hearing, FSB approved the proposal as submitted, thereby granting Chistochina residents a C&T determination in the remaining two areas of GMU twelve. The Alaska Department of Fish and Game expressed concerns with the proposal and asked FSB to limit the C&T determination to only certain portions of GMU twelve, instead of granting the determination for all the federal lands in the GMU.

Alaska subsequently asked FSB for reconsideration of the determination, but FSB denied Alaska’s request. In response, Alaska filed suit in federal district court, alleging violations of the Administrative Procedure Act.[13] Cheesh-na Tribal Council and Sinyon intervened. Following cross motions for summary judgment, the district court granted summary judgment in favor of federal defendants and the intervenors. Alaska appealed the decision of the district court to the Ninth Circuit.

The Ninth Circuit reviews de novo a district court’s grant of summary judgment.[14] The court must “hold unlawful and set aside” agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[15] Additionally, the court is deferential to agency decisions when the agency “articulate[s] a rational connection between the facts found and the choice made.”[16] Finally, although the court “may not fabricate a rational basis for an agency’s action,”[17] the court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”[18]

The Ninth Circuit first examined whether FSB had substantial evidence to support the fact-finding on Chistochina’s subsistence use of moose in GMU twelve. Although Alaska argued that FSB’s fact-finding was not supported by sufficient evidence, Alaska also conceded that the record supported the finding that Chistochina residents took moose in portions of all three sections of GMU twelve. Because FSB found that Chistochina residents took moose from all three areas within GMU twelve, the Ninth Circuit found there was no factual dispute and that consequently, FSB’s findings were supported by substantial evidence.

To consider whether FSB properly examined specific moose populations, the Ninth Circuit compared the litigation positions of Alaska and the federal defendants. Alaska claimed that FSB’s C&T determination was arbitrary and capricious because FSB failed to examine “specific moose populations.”[19] Conversely, the federal defendants asserted that the terms “population” and “species” were synonymous. Responding to FSB’s position, the Ninth Circuit characterized FSB’s interpretation as “purely a litigation position, developed during the course of the present case,” to which the court owed no deference.[20] The court concluded that the terms “population” and “species,” as used in the regulations, were not synonymous, and thus, FSB needed to identify the community’s use of specific fish stocks and wildlife populations when granting a C&T determination. Despite disagreeing with the federal defendants’ regulatory interpretation, the Ninth Circuit concluded that FSB properly considered the individual moose populations because the FSB “identified three specific moose populations” within the three areas of GMU twelve, and “considered whether Chistochina took moose for subsistence use in each of these three areas when making the instant C&T determination.”[21]

Next, the Ninth Circuit considered whether FSB acted arbitrarily and capriciously by adding Chistochina to the already-delineated areas within GMU twelve, instead of creating a new C&T determination area. Federal defendants initially argued that FSB properly extended Chistochina’s C&T determination to the entire GMU unit because the agency was not required by ANILCA or the regulations “to limit C&T determinations to the area in which a community has demonstrated subsistence use.”[22] In rejecting federal defendants’ argument, the court determined that the “regulations clearly tie C&T determinations to the specific locations in which wildlife populations have been taken.”[23] The court reasoned that although the definitions for “subsistence uses” and “customary and traditional use” do not “directly tie subsistence or C&T use to a particular location, each C&T determination must be tied to a particular community or area and a specific wildlife population.”[24] Additionally, looking to an eight-factor analysis utilized by FSB to determine a community’s use of a wildlife population,[25] the court discerned that the factors in the regulations require FSB to consider the geographic extent of the community’s subsistence activities. Further bolstered by ANILCA’s dual purposes of protecting and preserving both wildlife and subsistence lifestyle, the court concluded that the FSB’s decision to grant Chistochina a C&T determination for moose throughout the remaining two areas of GMU twelve could not “be supported simply by a finding that Chistochina residents used moose for subsistence purposes.”[26]

Federal defendants also asserted that FSB rationally based the C&T determination on administrative convenience, and therefore did not act in an arbitrary and capricious manner. Although FSB did not expressly indicate the need for administrative convenience, the court discerned the benefits of consolidated management of the GMU from the record. In examining the purpose behind FSB’s decision to provide a broad C&T determination for Chistochina in GMU twelve, the court noted that if “the FSB had to restrict every C&T determination to the precise area in which a rural community had demonstrated C&T use of a wildlife population, the C&T determinations would quickly become unmanageable.”[27] Accordingly, the court concluded that FSB’s decision to limit the number of C&T determination areas within the GMU provided a rational basis for the agency’s action.

Finally, the court considered ANILCA’s limitations and savings clause. ANILCA’s limitations and savings clause indicates that nothing in the subchapter should be construed to “authoriz[e] a restriction on the taking of fish and wildlife for nonsubsistence uses on the public lands . . . unless necessary for the conservation of healthy populations of fish and wildlife . . . to continue subsistence uses of such populations, or pursuant to other applicable law.”[28] Alaska asserted that Chistochina’s C&T determination violated ANILCA by restricting non-subsistence takings. In response, the court held that ANILCA’s limitation and savings clause only prohibits FSB from directly limiting nonsubsistence uses, and does not prevent the FSB from regulating the subsistence use of fish and wildlife resources or the collateral effects such a regulation might have on a a separate regulatory body.

In sum, the Ninth Circuit concluded that FSB’s decision to grant a C&T determination to Chistochina residents was not arbitrary and capricious. Accordingly, the court deferred to the agency’s decision and affirmed the decision of the district court to grant summary judgment to federal defendants and defendant-intervenors.

^[1] The federal defendants included FSB, the Chairman of the FSB, the Secretary of the Interior, and the Secretary of the Department of Agriculture. The defendant-intervenors included Cheesh-na Tribal Council (Chistochina’s governing body) and Larry Sinyon, a subsistence hunter from Chistochina.

^[2] 16 U.S.C. §§ 3101-3233 (2006).

^[3]Id. § 3101(b)-(c).

^[4] Subsistence use refers to

the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade.

50 C.F.R. § 100.4 (2008).

^[5]See 16 U.S.C. § 3113(3) (2006).

^[6]See 50 C.F.R. § 100.1 (2008); 36 C.F.R. § 242.1 (2008). The Secretaries promulgated identical regulations, which are codified at 50 C.F.R. pt. 100and 36 C.F.R. pt. 242.

^[7] 50 C.F.R. § 100.10(a) (2008); 36 C.F.R. § 242.10(a) (2008).

^[8] 50 C.F.R. § 100.10(d)(4)(iii) (2008); 36 C.F.R. § 242.10(d)(4)(iii) (2008).

^[9]See 50 C.F.R. § 100.11(a) (2008); 36 C.F.R. § 242.11(a) (2008).

^[10] According to the regulations, “[t]ake or taking as used with respect to fish or wildlife, means to pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct.” 50 C.F.R. § 100.4 (2008).

^[11]See id. §§ 100.25-.28

^[12] The federal public lands within GMU twelve include the Tetlin National Wildlife Refuge and the Wrangell-St. Elias National Park and Preserve.

^[13] See 5 U.S.C. § 706(2) (2006).Alaska also initially argued that the C & T determination violated ANILCA, but the district court held that Alaska lacked prudential standing, because ANILCA allows only parties “aggrieved by a failure . . . to provide for the priority for subsistence uses” to bring suit. Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3117(a) (2006).Alaska did not appeal the district court’s decision.

^[14]See Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir. 2008).

^[15] 5 U.S.C. § 706(2) (2006).

^[16] Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001).

^[17] Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1094 (9th Cir. 2008).

^[18] Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

^[19]Fed. Subsistence Bd., 544 F.3d at 1095.

^[20]Id.

^[21]Id. at 1096.

^[22]Id. at 1097.

^[23]Id. at 1098.

^[24]Id. at 1097.

^[25]See 50 C.F.R. § 100.16(b) (2008).

^[26]Fed. Subsistence Bd., 544 F.3d at 1098-99.

^[27]Id. at 1100.

^[28] 16 U.S.C. § 3125 (2006).

United States v. Alpine Land & Reservoir Co.

Posted on September 2, 2008 by Hanne Eastwood

The Pyramid Lake Paiute Tribe of Indians (Pyramid) challenged a decision to approve ten transfer applications for water rights in Nevada’s Newlands Reclamation Project (Project).[1]The Nevada State Engineer approved applications by landowners within Project boundaries to transfer water rights to new parcels of property. Pyramid appealed, claiming the water rights could not be transferred because they were abandoned or forfeited, and that the water itself should remain in the Truckee River to benefit the ecology of Pyramid Lake, located within the Pyramid Lake Indian Reservation. The United States District Court for the District of Nevada affirmed the State Engineer’s decision, determining that the Engineer’s findings were supported by substantial evidence and that his conclusions of law were consistent with prior Ninth Circuit decisions.[2]The court affirmed in part, reversed in part, and remanded in part, noting this case presented no substantial new legal issues and merely required application of the Ninth Circuit’s prior interpretation of Nevada law.[3]

The distribution of water rights and federal water policy are determined by state substantive and procedural law to the extent not preempted by a federal directive.[4]In Nevada, applications to transfer water rights are made to the State Engineer. The Engineer’s determination “shall be prima facie correct, and the burden of proof shall be upon the party challenging the . . . decision.”[5]On appeal, the Engineer’s factual determinations are upheld if they are supported by substantial evidence,[6]but legal determinations are reviewed de novo.[7]

The court began by summarizing the law governing abandonment and forfeiture of water rights before considering in turn each of the ten transfer applications. Nevada law does not presume abandonment from nonuse alone, and instead mandates consideration of all the surrounding circumstances.[8]

In Nevada, a party asserting abandonment must make an initial showing to the State Engineer of a substantial period of nonuse on the parcel to which the water rights were attached. When the challenger makes this showing, the transfer applicant must rebut with evidence of one of the following to show a lack of intent to abandon: 1) the water was in fact beneficially used on the parcel, 2) the water was continually used on another parcel and the applicant presents evidence demonstrating that he or she tried to transfer the water rights or inquired about the possibility but was “thwarted” or told it was impossible by the government or irrigation district, 3) the taxes and assessments were paid during the period of nonuse and no improvements inconsistent with irrigation were made on the land to which the rights were attached, or 4) the previous owner sold the rights before his actions qualified as abandonment, and the new owner demonstrates a lack of intent to abandon.[9]The State Engineer considers all information presented by the applicant and the challenger; but the burden of persuasion is on the contesting party, who must demonstrate abandonment by clear and convincing evidence.[10]

Under Nevada law, nonuse for “any 5 successive years” results in forfeiture,[11]but forfeiture does not apply to rights “that were vested or for which appropriations were initiated before . . . March 22, 1913.”[12]Where water rights are apparently subject to forfeiture, equitable relief may be available if: 1) steps were taken to transfer the rights during the period of nonuse,[13]2) the applicant attempted to or inquired about the possibility of transfer, but was thwarted by the government or irrigation district,[14]and 3) the balance of hardships favors the applicant, which, in keeping with the Orr DitchDecree, is likely when there is no increased diversion of water from the river.[15]

After summarizing applicable Nevada law regarding abandonment and forfeiture, the Ninth Circuit considered each of the ten transfer applications in turn. The court affirmed the State Engineer’s approval of application number 49999 (Workman) because the owner’s sale of water rights demonstrated no intent to abandon. The Engineer found a sale by the prior owner took place before abandonment would otherwise have occurred, and the buyer requested a transfer request that demonstrated he did not intend to abandon. The court rejected Pyramid’s assertion that a thwarted attempt to transfer must always result from substantial period of nonuse. Noting its prior cases had not discussed a sale alone, the Ninth Circuit determined that a “mere sale after an abandonment would otherwise be found would not, itself, suffice” to avoid a finding of abandonment.[16]The court stated, however, that a sale of water rights by an owner is the “antithesis of intent to abandon.”[17]In the Workman application, such a sale avoided a finding of abandonment despite six years with no beneficial use, use of the parcel inconsistent with irrigation, and no government-thwarted attempt to transfer.

The court affirmed the transfer of rights on application number 52335 (Ponte), noting substantial evidence supported the Engineer’s findings of continuous use of the water itself and a thwarted attempt to transfer the rights, despite a period of nonuse. The Ninth Circuit rejected Pyramid’s argument that the rights were abandoned because the transfer attempt
preceded the period of nonuse, noting that rigid rules of this sort are more likely applied to cases of forfeiture, not abandonment.[18]

Application number 50008 (Rambling River Ranches) raised issues of abandonment and forfeiture. The State Engineer determined no water rights were abandoned despite substantial periods of nonuse and in some cases, uses inconsistent with irrigation.[19]In support of this determination, all taxes and assessments were paid and all of the water itself had been continuously used. The Ninth Circuit determined that under the rules governing abandonment, these facts alone supported a finding against abandonment for the parcels with uses consistent with irrigation. In addition, given that the landowner’s attempts to transfer were thwarted repeatedly by the government, the record contained substantial evidence to support the Engineer’s finding of no abandonment on any of the parcels. On the issue of forfeiture, the State Engineer found that portions of parcels eight and nine and all of parcels two, eleven, and twelve were subject to forfeiture (following five successive years of nonuse). Rather than consider any attempts to transfer, the Engineer went directly to balancing, finding no forfeiture since the amount of water under consideration was of infinitesimal value to Pyramid Lake, therefore tipping the balance in favor of the applicants. The Ninth Circuit rejected the Engineer’s approach, pointing to the requirement that a transfer attempt be thwarted during the period of nonuse to reach any equitable balancing. With sufficient evidence in the record that no thwarted attempt to transfer on parcel two and portions of parcels eight and nine, the court reversed the Engineer and determined water rights on those areas were forfeited. The court remanded on the issue of forfeiture as to parcels eleven and twelve, finding the record lacking on whether attempted transfers were thwarted on those parcels.

As to application number 51043 (Stix), the court affirmed the Engineer’s finding of no abandonment. Although there was a substantial period of nonuse on the parcels to which the rights were attached, the use of the parcels was not inconsistent with irrigation and the taxes and assessments were paid. The Ninth Circuit also affirmed the Engineer’s decision in application number 51051 (Harriman). In that instance, the water rights were not abandoned because the water itself was continuously used and the record demonstrated a thwarted attempt to transfer. The court rejected Pyramid’s argument that the attempt to transfer should not count because it preceded the period of nonuse, determining this was not fatal to the landowner’s application.

The Ninth Circuit also upheld the majority of the State Engineer’s findings with regard to application number 51237 (Wolf). Pyramid presented witness testimony that the drainage ditch, a use inconsistent with irrigation, occupied one acre of the land. Both sides agreed it was in the middle of the parcel. With the exception of the ditch, the use of the property was not inconsistent with irrigation and all taxes and assessments were paid, which is enough to show lack of intent to abandon. In addition, the water was in continuous use. The State Engineer rejected Pyramid’s testimony as insufficient and found no abandonment. The Ninth Circuit reversed the Engineer’s findings only as to the land occupied by the drainage ditch, stating that, as to that land, the Engineer placed too high a burden on the challenger.

The Ninth Circuit reversed in part the Engineer’s findings on application number 51608 (DeBraga). The court upheld the Engineer’s decision on parcel two, on which the water rights had not been used for seven years and the use of the land was inconsistent with irrigation, although the water itself had been continuously used. The decision to approve the transfer was upheld only because the record showed the applicant inquired about transfer and was thwarted prior to or during the period of nonuse on parcel two.[20]This thwarted attempt to transfer, however, followed a twenty-five year period of use inconsistent with irrigation on parcels one and nine. The court held that because the request belatedly followed a twenty-five year period of inconsistent uses, it could not cure that twenty-five year period of abandonment. The State Engineer’s determination of no abandonment was therefore reversed as to parcels one and nine.

The eighth application considered by the court was number 53910 (Thomas), in which the Ninth Circuit upheld the State Engineer’s finding of no forfeiture because Pyramid submitted insufficient evidence to demonstrate a five-year period of nonuse. Some evidence demonstrated certain years without irrigation, but there was also evidence to the contrary. Pyramid failed to meet the clear and convincing standard, and the finding of no abandonment was affirmed.

On application number 52843 (Inglis), the State Engineer in that case determined water flowing through dirt-lined ditches absorbed water, resulting in growth of grass used as pasture that qualified as a beneficial use not inconsistent with irrigation. Rejecting Pyramid’s assertion that no finding of beneficial use was possible without a showing of the exact quantity of water consumed or vegetation growth, the Ninth Circuit affirmed finding of no abandonment.[21]In application number 51734 (Bright), the court affirmed the Engineer’s finding of no abandonment on the same rationale.

In conclusion, the Ninth Circuit upheld the vast majority of the State Engineer’s decisions on the ten applications for transfer of water rights. Pyramid’s appeal resulted in the reversal of rulings on parcel two and portions of parcels eight and nine of the Rambling River Ranches application, on land occupied by the drainage ditch in the Wolf application, and on parcels one and nine in the DeBraga application. The court remanded for further consideration rulings on forfeiture of water rights on parcels eleven and twelve of the Rambling River Ranches. All other portions of the ten applications were affirmed. In a final ruling, the Ninth Circuit awarded costs against Pyramid on all applications except Wolf, Rambling River Ranches, and DeBraga, for which the court determined each party would bear their own costs.

^[1] Water rights in the Project have a long litigation history, dating back nearly to the Project’s creation. Water from two rivers, the Truckee and the Carson, irrigated the land. The United States initiated litigation in 1913 to settle Truckee River water claims, leading to the Orr Ditch Decree. Similarly, the Alpine Decree resulted from a quiet title action initiated by the United States to settle claims to water from the Carson River. In this opinion, the Ninth Circuit declined to summarize the history of these conflicts, pointing instead to the background discussed in prior opinions. See United States v. Alpine Land & Reservoir Co. (Alpine VI), 340 F.3d 903 (9th Cir. 2003); United States v. Alpine Land & Reservoir Co. (Alpine V), 291 F.3d 1062 (9th Cir. 2002); United States v. Orr Water Ditch Co. (Orr Ditch), 256 F.3d 935 (9th Cir. 2001); United States v. Alpine Land & Reservoir Co. (Alpine II), 878 F.2d 1217 (9th Cir. 1989); United States v. Alpine Land & Reservoir Co. (Alpine I), 697 F.2d 851 (9th Cir. 1983).

^[2] The water rights in dispute in this case were granted following the district court’s February 25, 2004 remand of pending transfer applications to the State Engineer in response to the Ninth Circuit’s decisions in Alpine V and Alpine VI. Alpine V, 291 F.3d 1062 (9th Cir. 2002); Alpine VI, 340 F.3d 903 (9th Cir. 2003). Some of the pending transfer applications remanded for consideration were denied. Pyramid appealed 10 that were approved. All of the water rights associated with these transfer applications are governed by the Orr DitchDecree.

^[3] The Ninth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291.

^[4]Alpine I, 697 F.2d at 858; Alpine II, 878 F.2d at 1223.

^[5]Alpine V, 291 F.3d at 1071.

^[6]Id.

^[7]See Town of Eureka v. State Engineer, 108 Nev. 163, 165 (Nev. 1992)(per curiam).

^[8]Alpine VI, 340 F.3d 903, 916 (9th Cir. 2003).

^[9] United States v. Alpine Land & Reservoir Co. (Alpine VII), 510 F.3d 1035, 1038-39 (9th Cir. 2007).

^[10]Alpine VI, 340 F.3d at 921-22.

^[11] Nev. Rev. Stat. § 533.060 (1987).

^[12]Orr Ditch, 256 F.3d 935, 941-42 (9th Cir. 2001).

^[13]Alpine VI, 340 F.3d at 914; Alpine V, 291 F.3d 1062, 1078 (9th Cir. 2002).

^[14]Alpine V, 291 F.3d at 1078; see also Alpine VI, 340 F.3d at 914.

^[15]See Alpine VI, 340 F.3d at 915; Alpine V, 291 F.3d at 1078 n.21; Alpine II, 878 F.2d 1217, 1224 (9th Cir. 1989).

^[16]Alpine VII, 510 F.3d 1035, 1040 (9th Cir 2007).

^[17]Id.

^[18]See, e.g.,Alpine VI, 340 F.3d at 914; Alpine V, 291 F.3d at 1078.

^[19] The period of nonuse on the parcels to which the rights were attached was 38 years on parcels 1-3 and 5-9, 24 years on parcels 11 and 12, and 40 years on parcel 13. Parcels 1-3, 5, and 6 had uses consistent with irrigation, parcels 7-9 had partially inconsistent uses, and parcels 11-13 had entirely inconsistent uses.

^[20] The record demonstrated that the applicant served on the Board of the irrigation district from 1974 to 1998. The State Engineer believed he was sufficiently thwarted to avoid abandonment by way of knowing through his position on the Board that any request to transfer rights would be denied. The Ninth Circuit upheld the finding of no intent to abandon, but amended its rationale. Considering the State Engineer’s reasoning alone too close to a “futility claim” rejected by the Ninth Circuit, the court instead grounded its decision in the record, which showed the applicant did inquire about a water rights transfer and was “told no.” Alpine VII, 510 F.3d at 1043 (citing Alpine VI, 340 F.3d at 918; Alpine V, 291 F.3d at 1076; Alpine II, 878 F.2d at 1223).

^[21] The court distinguished the Inglis application from its earlier rejection in Alpine VIthat a dirt-lined ditch is “ipso facto, a beneficial use,” noting that the Alpine VI court went on to say “[t]here is a possibility that along the course of a ditch, there may be some beneficial use and appurtenant rights if the water is used for lateral root irrigation.” Alpine VI, 340 F.3d at 924-25.

Environmental Law

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Category Archives: Natural Resources

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