1994 Ninth Circuit Environmental Review.

A. Clean Air Act

1. McCarthy v. Thomas, 27 F. 3d 1363 (9th Cir. 1994).

The plaintiffs requested injunctive relief ordering the cities of Tucson and Phoenix to expand their mass transit systems in accordance with the approved portions of Arizona's state implementation plan (SIP). The Ninth Circuit reversed the district court's dismissal of the claims and remanded with an order to formulate a remedy.

The State of Arizona submitted proposed SIP revisions to EPA to comply with Clean Air Act (CAA) requirements for national ambient air quality standards for carbon monoxide. EPA granted conditional approval to the, revisions due to deficiencies unrelated to mass transit. When Arizona failed to correct the SIP deficiencies, EPA formally disapproved the attainment demonstrations. Arizona then submitted sufficient attainment demonstrations, and EPA granted final SIP approval. In Delany v. EPA,(1) the Ninth Circuit vacated that approval and ordered EPA to promulgate a federal implementation plan (FIP). In its FIP proposal, EPA noted that it did not intend to vacate the previously approved transportation control measures in the SIP. EPA included similar language in the final FIP approval.

When Tucson and Phoenix failed to meet the SIP's mass transit improvement requirements? the plaintiffs filed the current suit seeking an injunction requiring implementation of those improvements. The district court dismissed the claims, finding that EPA did not expressly adopt the earlier mass transit provisions into "any final SIP or FEP."

The Ninth Circuit reversed the district court and held that the mass transit provisions were included as part of the EPA-approved SIP provisions. The court found the holding in Kamp V. Hernandez(2) to be controlling. Kamp held that a substantially complete SIP can be approved by EPA if the state provides adequate assurances of prompt completion. The court also held that the deficiencies in the earlier plans were minor and that those plans became binding when EPA gave its final overall approval.

The Ninth Circuit found that the district court's interpretation would have required EPA "to re-approve all previously approved provisions each time it approves another portion of a SEP." The court noted that its decision was in accord with decisions in the Second and Sixth Circuits. However, the court declined the invitation to fashion an injunctive remedy and remanded that issue to the district court.

2. Trustees for Alaska v. Fink, 1 7 F. 3d 1209 (9th Cir. 1994).

Plaintiffs Med suit to force the City of Anchorage to comply with its mass transit expansion plan under its state implementation plan (SIP). The Ninth Circuit found that the city conditioned its commitment to the plan upon funding availability. However, the court held that the plaintiffs had not met their burden of showing the city's attempt to obtain funding to be unreasonable.

Anchorage developed a mass transit expansion plan (Anchorage Plan) in order to comply with the Clean Air Act's (CAA) national ambient air quality standards for carbon monoxide. The State of Alaska incorporated the Anchorage Plan into its SIP, which the EPA subsequently approved.

Plaintiffs argued that the plain meaning of the 1977 CAA Amendments required Anchorage to "identify and commit the financial . . . resources necessary to carry out" the Anchorage Plan. However, the Ninth Circuit held that EPA's CAA interpretation to allow conditional commitments was reasonable based upon the CAA's legislative history, and the court deferred to that interpretation.

The Ninth Circuit noted that transportation control measures must be enforceable in order to comply with the CAA and that Anchorage had met this enforceability requirement because Anchorage had made reasonable attempts to locate funding. Anchorage made grant requests, but found the grants would be insufficient to overcome the city transit authority's budget deficit. The city was unable to obtain voter approval for a gas tax or bond proposals, and the city charter barred the city from raising taxes. The Ninth Circuit then affirmed the district court's finding that the plaintiffs had failed to carry their burden of proving the city's funding location attempts to be unreasonable.

B. Hazardous Waste 

1. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 41 F.3d 562 (9th Cir. 1994).

During World War II, the United States contracted with Dow Chemical and several rubber companies to construct, lease, and operate synthetic rubber manufacturing facilities on land owned by the United States. The synthetic rubber process produced large quantities of contaminated styrene. Dow Chemical removed and stored contaminants, known as "sulfur tar bottoms," in pits on the property.

The plaintiff, who eventually purchased the land for development, brought this cost-recovery action under 42 U.S.C. [sections] 9607(a) of the Comprehensive Environmental Response, Compensation, and Liability Act against Dow Chemical and the United States. Dow Chemical sought contribution under [sections] 9613(f) from the rubber companies as persons who "arranged for disposal or treatment" of a hazardous substance, because the rubber companies had sent the contaminated styrene back to Dow Chemical for redistillation. The rubber companies denied liability because they did not control the re-distillation process and the United States had retained official ownership of all the materials. The district court granted the rubber companies' motion for summary judgment.

The Ninth Circuit refused to accept the rubber companies' restrictive reading of [sections] 9607(a)(3). Referring to several other Ninth Circuit cases, the court noted that this section does not limit liability to those who own or control the hazardous substances. The rubber companies argued that they were not liable, because their return of the contaminated styrene was a sale of a useful product. However, the Ninth Circuit held that sufficient questions of fact remained as to whether the rubber companies had arranged for disposal or treatment and whether the transaction was a sale of a useful product. Thus, the court reversed the summary judgment finding and remanded to the lower court.

2. Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994).

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a homeowner incurred cleanup costs for removal of contaminated soil from her property. The soil contamination resulted from the dumping of toxic materials by the Navy in the 1930s. In an attempt to recover her cleanup costs, attorneys' fees, and medical monitoring costs, the plaintiff brought a CERCLA action against the Navy, the former property owner, and the swimming pool company that had originally discovered the contamination. The plaintiff also requested an injunction under the Resource Conservation and Recovery Act (RCRA) requiring the defendants to remove contaminants that the plaintiff asserted remained on the property. The plaintiff settled the claims against the pool company prior to trial.

The district court held that CERCLA private "response costs" under 42 U.S.C. [sections] 9607(a)(4)(B) do not include medical monitoring costs. The court also granted the Navy's motion for judgment on partial findings and dismissed the RCRA claims, because the plaintiff had not carried her burden of proof on those claims. Next, the district court held that the plaintiff was not entitled to recover her attorneys' fees. Finally, the court found that the plaintiff could receive nothing on her request for reimbursement under CERCLA's response cost provisions because, although the defendants were liable, the plaintiff had already received adequate compensation for her expenses from the state and the pool company.

On appeal, the Ninth Circuit affirmed the district court's ruling that medical monitoring costs are not recoverable response costs under CERCLA. In making this holding, the Ninth Circuit relied extensively upon Daigle v. Shell Oil Co.,(3) the first circuit court decision addressing this issue.

The Ninth Circuit remanded the case for reconsideration of the attorneys' fees issue, due to the prior Supreme Court decision in Key Tronic Corp. v. United States.(4) In Key Tronic, the Court held that attorneys' fees related to identification of potentially responsible parties were recoverable under CERCLA response costs, but that attorneys'fees related to settlement agreement preparations and prosecution of litigation were not recoverable. Since the district court had not broken down its analysis of the plaintiffs fees into those categories, the Ninth Circuit remanded for determination of that categorization.

Finally, the Ninth Circuit affirmed the lower court's ruling that the plaintiff had failed to carry her burden of proof on her RCRA claims and, thus, dismissed those claims.

3. Catellus Development Corp. v. United States, 34 F.3d 748 (9th Cir. 1994).

The Ninth Circuit reversed the district court's grant of summary judgment that held that a company's sale of used automotive batteries to a lead reclamation plant was not an arrangement for disposal or treatment of a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Defendant General Automotive (General) operated automobile parts stores and accepted used automotive batteries as trade-ins. General sold the spent batteries to Morris P. Kirk & Sons, Inc. (Kirk), a company that extracted and smelted the lead. Kirk then disposed of the leftover battery casings on the plaintiffs property, contaminating the property with lead. The plaintiff sought recovery of its CERCLA response costs from General as a party who had "arranged for disposal or treatment" of hazardous wastes under 42 U.S.C. [sections] 9607(a)(3). The district court granted General's motion for summary judgment, finding that, as a matter of law, General did not arrange for disposal or treatment of hazardous wastes.

The Ninth Circuit reversed, finding that General arranged for hazardous waste disposal, but not for hazardous waste treatment. The regulations under the Solid Waste Disposal Act define spent automotive batteries as waste. The court noted that, in accord with earlier Ninth Circuit case law, byproducts of commercial processes can be both "products," which are exempt from the definition of waste, and "wastes." Thus, the sale of spent batteries to a recycling plant did not preclude liability for General.

The court also stated that a lack of control over the spent batteries did not exempt General from CERCLA liability; it is sufficient if "treatment is inherent in the particular arrangement." However, General was not liable for arranging for treatment, because CERCLA requires that the treatment take place at the location of the cleanup efforts and Kirk did not process the spent batteries on the plaintiffs property. The Ninth Circuit reversed and remanded to the district court, because General could still be liable for arranging for the disposal that eventually led to the plaintiffs cleanup expenses.

4. Long Beach Unified School District v. Dorothy B. Goodwin California Living Trust, 32 F.3d 1364 (9th Cir. 1994).

The Ninth Circuit held that holders of an easement across property containing hazardous wastes were not liable for cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because easement holders are not owners and, under the facts of this case, these easement holders were not operators subject to liability.

The plaintiff purchased the defendants' land, which was burdened by an easement for a pipeline owned by the two codefendant oil companies. A prior owner had maintained a waste pit on the land, creating hazardous wastes. The plaintiff knew about the wastes when it purchased the land and accordingly required an escrow fund for cleanup costs. When the actual cost greatly exceeded the escrow funds, the plaintiff brought an action under CERCLA to recover cleanup costs. The seller and the tenant who created the hazardous wastes settled, and the plaintiff continued its action against the two oil companies. The plaintiff argued that CERCLA liability could expand to a party holding an easement.

The defendants did not argue that the waste pit was not a facility, that there was no release of hazardous substances, or that the plaintiff had not incurred response costs; thus, the only issue was whether the defendants were within one of the four classes of potentially liable parties under 42 U.S.C. [sections] 9607(a)(4). With little discussion, the court dismissed the notion that the easement holders were transporters of hazardous wastes or arrangers of hazardous waste disposal. This left only the possibility that the court could find liability against the defendants as owners or operators of a hazardous waste facility.

The Ninth Circuit found that an easement holder could be an operator, but that the facts of this case did not support such liability because the defendants did not engage in any active management of the facility. The court then held that easement holders could not be liable as owners under CERCLA. To reach this finding, the court relied upon two arguments: the common-law view that easement holders are not owners and a public policy argument that merely holding an easement across property containing hazardous wastes should not by itself create CERCLA liability in nonoperating situations.

As a final note, the Ninth Circuit rejected the plaintiffs argument that an easement holder could be liable as holding an "indicia of ownership" under [sections] 9601(20)(a), even if it did not participate in managing the facility. The court refused to give such a broad reading to that statutory language. 5. United States v. Freter, 31 F.3d 783 (9th Cir.), cert. denied, 115 S. Ct. 646 (1994).

In the late 1980's, as part of a mineral processing venture, Freter subleased public lands in California. By April 1990, he had fallen behind in rent payments, and the state ordered him to leave the property. He did so, leaving behind several drums of sodium hypochlorite, a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). No one located the drums until October 1990. In August 1992, Freter was convicted on one count of failing to notify a government agency of a release of a hazardous substance. A "release" includes the abandonment of barrels or other closed receptacles containing a hazardous substance. Freter appealed the conviction.

Freter made three initial arguments; the court quickly disposed of each. First, Freter claimed that he did not abandon the property, because the state forced him to leave. Second, he argued that the jury had insufficient evidence to convict him. Third, he argued that in the closing, the prosecutor had improperly referred to two documents that were never admitted into evidence. On the first two claims, the Ninth Circuit upheld the jury decision, finding that a reasonable juror could conclude as these jurors had done. On the third claim, the Ninth Circuit found that the prosecutorial action, while improper, did not create such a high level of prejudice as to affect Freter's substantial rights and, thus, the court would not overturn the jury's verdict on this issue.

Freter then argued that the federal government must prove that the release was not "federally permitted" as an element of the offense. 42 U.S.C. [sections] 9603(b)(3) of CERCLA provides for penalties against "[a]ny person . . . in charge of a facility from which a hazardous substance is released, other than a federally permitted release, . . . who fails to notify immediately the appropriate agency." Thus, resolution of this issue depended on whether the relevant language of [sections] 9603(b)(3) establishes an affirmative defense or an additional element of the crime. This was an issue of first impression in the Ninth Circuit.

The Ninth Circuit held that the federally permitted release exception is an affirmative defense and, thus, is not an element of the crime. In its holding, the court relied on "[t]he well-established rule . . . that a defendant who relies upon an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has the burden of establishing and showing that he comes within the exception."(5) The court refused to limit this doctrine to statutes in which the relevant language is in a separate section or sentence from that describing the elements of the crime. The court also noted that when, as here, a statutory prohibition is broad and an exception narrow, the court is more likely to interpret the exception as an affirmative defense than a crime.

6. Public Service Company of Colorado v. Shoshone-Bannock Tribes, 30 F.3d 1203 (9th Cir. 1994), infra part III.

7. Chlorine Institute, Inc. v. California Highway Patrol, 29 F.3d 495 (9th Cir. 1994).

The Ninth Circuit held that the Hazardous Materials Transportation Uniform Safety Act (HMTUSA) preempts certain California Highway Patrol (CHP) regulations requiring an escort for shipments of specified hazardous materials on California highways and prescribing requirements regarding those vehicles.

In 1975, Congress enacted the Hazardous Materials Transportation Act (HMTA) to replace all state and federal laws concerning the transportation of hazardous materials. Pursuant to authority delegated by HMTA, the U.S. Department of Transportation (DOT) promulgated the Hazardous Materials Regulations (HMR), which outline certain requirements for shippers and carriers of hazardous materials. In 1990, Congress amended HMTA by enacting HMTUSA which, among other things, rewrote the standards for determining when federal law preempts state regulations pertaining to hazardous materials transportation. The HMTUSA preemption provision provides for the preemption of any state requirement that "creates an obstacle to the accomplishment . . . of HMTUSA."

The CHP regulations required that the shipment of certain chemicals, including chlorine and oleum, be accompanied by escort vehicles and that those vehicles be equipped with special communications equipment, a self-contained breathing apparatus, and, in certain situations, a sleeper-berth and an additional driver. These regulations significantly exceeded the federal requirements imposed by DOT, and, thus, the Ninth Circuit held that they created an obstacle to the accomplishment of Congress's goal of uniform national regulation. HMTUSA, therefore, preempted these regulations.

The court noted that CHP still had an avenue to pursue its perceived need for additional regulation, because Congress has specifically provided that states can apply to DOT for a waiver of federal preemption. DOT may grant such a waiver if the proposed regulations provide equal or greater safety than the federal provisions and do not "unnecessarily burden" commerce.

8. Aeroquip Corp. v. Aetna Casualty & Surety Co., 26 F.3d 893 (9th Cir. 1994).

In 1979, Aeroquip leased some real property to Brasher Brothers, Inc., who subsequently installed a 12,000 gallon underground diesel fuel tank. During the lease, Brasher Brothers was insured under a general liability policy issued by Aetna. In 1986, Aeroquip hired an environmental consulting firm to remove the tank, who discovered that up to 7,500 gallons of diesel fuel had leaked approximately 80 feet into the soil. Although Aeroquip could not determine the cause and time of the leak, it never noticed any significant, unexplained drops in fuel levels, suggesting a long, slow leak. Aeroquip brought this action against Aetna, claiming that the insurance policy should cover the one million dollar cleanup cost. The insurance policy excluded coverage for pollution but contained an exception for "sudden and accidental" pollution. Aeroquip challenged a district court opinion granting summary judgment in favor of the defendants.

Aeroquip first argued that "sudden" can mean unexpected and unintended, without any relation to time. However, following Ninth Circuit precedent,(6) the court found that "sudden and accidental" necessarily incorporates a notion of temporal brevity.

Aeroquip next argued that Aetna had the burden of proving that the exception to the exclusion did not apply. This issue was one of first impression for the Ninth Circuit. Although courts are generally split on this issue, the Ninth Circuit noted that the majority of decisions place the burden on the insured. And, among the circuit courts, only the First(7) and Third(8) Circuits have considered the issue, both of which recently held that the burden falls on the insured rather than the insurer.

Ninth Circuit precedent first places the burden on the insured to prove that an event is a claim within the scope of the basic coverage. The court held that since the "sudden and accidental" exception creates coverage when it would otherwise not exist, the insured's burden of proving coverage extends to proof of this exception. Moreover, the court stressed that if the burden fell on the insurer, the property owner would have an incentive to avoid discovery of gradually discharged pollutants, because ignorance would increase the chance of insurance coverage. The court also noted that this ruling was consistent with the usual rules for allocating burdens of proof as courts place the burden on the party who has the greatest access to facts. The court then concluded that Aeroquip did not satisfy its burden of proof and, thus, the district court properly entered summary judgment for Aetna.

C. National Environmental Policy Act

1. Oregon Natural Resources Council, Inc. v. Bureau of Reclamation, 52 F.3d 334 (9th Cir. 1995).(9)

The Oregon Natural Resource Council (ONRC) brought suit alleging that the activities of the Bureau of Reclamation (Bureau) at the Klamath Irrigation Project violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). The district court granted summary judgment in favor of the Bureau. ONRC appealed only the NEPA claims.

ONRC argued that the Bureau failed to follow NEPA's procedural requirements when it lowered the water levels in Klamath and Clear Lakes to provide more water for irrigation, applied aquatic herbicides in the waterways, dredged a silted-up channel, and attempted to salvage stranded endangered fish in drained irrigation canals. The Ninth Circuit dismissed part of ONRC's complaint and affirmed part of the district court's opinion. The Ninth Circuit found that the claim lacked ripeness, because the lowered-water-level and herbicide claims were not final agency actions.

Concerning the issue of water levels and aquati herbicides, the court held these actions were ongoing operations of a pre-NEPA projet. The court found that because NEPA does not apply retroactively, NEPA did not apply to these action unless the actions "underwent changes which themselves amounted to `major Federal actions."' The court found that the subsequent listing on an endangered species in the area did not convert the agency's actions to major federal actions. The court found that only change in the agency's program itself could convert the actions to major federal action under NEPA.

On the dredging issue, the court ruled that the claim was moot. The Bureau had finished dredging in 1992 and had no plans for further dredging. Regarding the salvage operations, the court further noted that the ESA required the salvage operations as part of the Bureau's compliance and thus, the actions did not trigger NEPA provisions.

2. Laguna Greenbelt, Inc. v. United States Department of Transportation, 42 F.3d 517 (9th Cir. 1994).

Laguna Greenbelt, Inc. (Laguna) challenged approval of a tollroad by the Federal Highway Administration (FHA). The Ninth Circuit held that FHA did not violate the National Environmental Protection Act (NEPA) by approving the environmental impact statement (EIS) for the tollroad, nor by failing to prepare a supplemental environmental impact statement (SEIS) to incorporate possible effects of wildfires that occurred after FHA approved the EIS. Finally, the Ninth Circuit held that FHA did not violate 49 U.S.C. [sections] 303 of the Intermodal Surface Transportation projects, because the court found that the area in question was not a "park" as defined by the statute.

Laguna claimed that FHA intended to pursue the final tollroad regardless of the other alternatives in the EIS. The court rejected this claim, holding that FHA's intention or predisposition in drafting the EIS is irrelevant when the EIS satisfies NEPA.

Laguna also made several arguments regarding FHA's EIS alternatives. First, Laguna argued that FHA did not adequately consider enough alternatives. The Ninth Circuit held that three alternatives were sufficient when FHA discussed in detail the feasible alternaltives and briefly discussed the reasons for eliminating other alternatives. The court also noted that NEPA did not require any minimum number of alternatives. Laguna next asserted that FHA did not consider a sufficiently broad range of alternatives. The Ninth Circuit disagreed, holding that NEPA does not require consideration of alternatives that are not reasonably related to the purposes of the project. Consequently, the court rejected Laguna's proposal for a four-lane highway, because it would not meet the project's goal of reducing traffic congestion.

Laguna claimed that the EIS did not adequately discuss the growth-inducing effects of the proposed tollroad. However, because the record showed that 98.5 percent of the land in the project's "area of benefit" was already accounted for by existing or committed land uses, the court found that the tollroad would not affect the amount or nature of growth in the area. Accordingly, the court found FHA's discussion of growth-inducing impacts to be reasonable.

Laguna claimed that the EIS violated NEPA, because it did not accurately reveal that the tollroad would take 1.7 acres of the University of California, Irvine Ecological Reserve. The court stressed that in order to get relief, a plaintiff must not prove show a violation of NEPA's procedural requirements, but the plaintiff must also prove that the decisionmaker was not fully informed as to the environmental consequences. The court held that this error was not reversible and no relief was necessary because the public had sufficient information regarding the tollroad's impact on the reserve.

Laguna contended that the EIS provided insufficient information on mitigation measures and their effectiveness. However, the court noted that NEPA does not require a fully developed plan that will mitigate all environmental harm, but requires only that mitigation be discussed in sufficient detail to ensure informed decisionmaking. Furthermore, scientific uncertainties in the mitigation measures do not need to be discussed in an EIS. The Ninth Circuit concluded that the discussion of mitigation measures in the EIS was reasonably thorough and sufficient, thereby satisfying NEPA.

Finally, Laguna asserted that FHA violated NEPA by not preparing an SEIS after brushfires in the region. Specifically, FHA did not consider the combined effects of the tollroad and the fires on downstream water resources. However, the court found that FHA took a hard look at environmental consequences and concluded, based on the expertise of the Army Corps of Engineers, that the existing mitigation measures sufficiently addressed the fires' effects. With respect to threatened and sensitive species, FHA had also re-initiated consultation with the U.S. Fish and Wildlife Service. Therefore, the Ninth Circuit concluded that FHA did not violate NEPA by deciding not to prepare an SEIS.

3. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994).

Salmon River Concerned Citizens (SRCC) challenged the adequacy of a final environmental impact statement (FEIS) by the U.S. Forest Service (Forest Service), which addressed the proposed use of herbicides in the Forest Service's reforestation program. The Forest Service asserted that SRCC lacked standing and that its claims lacked merit. The Ninth Circuit held that SRCC had standing to challenge the programmatic FEIS, because SRCC members showed actual harm to their health and their recreational use and enjoyment. The court also held that SRCC's claims were ripe, because the court found that the FEIS set guidelines that determined future herbicide application. However, the court held for the Forest Service, finding that the FEIS complied with the National Environmental Policy Act (NEPA).

Having established SRCC's standing and the ripeness of the claim, the court considered the merits of the claim. SRCC claimed that the FEIS inadequately analyzed the cumulative impact of herbicide use. The Ninth Circuit analyzed SRCC's claims under a "rule of reason," whereby the district court determines whether an EIS contains a reasonably thorough discussion of the significant environmental effects. The Ninth Circuit rejected SRCC's claim, holding that the FEIS had a reasonably thorough discussion, even if it did not specifically evaluate herbicide doses from other sources.

SRCC argued that the FEIS violated NEPA, because it failed to disclose the identity, toxic effects, and synergistic effects of some of the inert ingredients of the herbicides, The Forest Service responded that EPA's "confidential business information" policy does not require the release of the inert ingredients. Furthermore, the Forest Service anticipated the effects of the inert ingredients in the FEIS's worst case analysis. The Ninth Circuit agreed with the Forest Service, noting its earlier decision in Northwest Coalition for Alternatives to Pesticides v. Lyng.(10) In Lyng, the court focused on active ingredients and did not require an EIS to consider all the ingredients in pesticides. Thus, in the case at hand, the court reiterated that its task was not to ensure that the Forest Service was correct, but simply that the Forest Service had a reasoned analysis and disclosed the evidence before it.

Finally, SRCC claimed that the FEIS did not adequately discuss the risk of herbicide exposure to hypersensitive people or to people with multiple chemical sensitivities syndrome. The court rejected this challenge, because the FEIS accounted for chemically sensitive people by including a safety factor, even if the safety factor might be too small. Because the FEIS expressly considered the effects of herbicide exposure on sensitive individuals and because it was unlikely that a sensitive individual would be among the few exposed in any of the Forest Service's herbicide applications, the district court found the discussion adequate. The Ninth Circuit affirmed the validity of the FEIS.

D. Toxic Torts

1. Exxon Shipping Co. v. United States Department of Interior, 34 F.3d 774 (9th Cir. 1994).

In the aftermath of the Exxon Valdez oil spill, a group of commercial fishers, landowners, local governments, businesses, and others sued the Exxon Shipping Company and the Exxon Corporation (collectively known as Exxon) for compensatory and punitive damages for injuries allegedly suffered from the oil spill. To aid in preparing its defense of the underlying damage claim, Exxon sought discovery from ten employees of the Department of the Interior and other federal agencies. The information sought by Exxon related to the extent of natural resource damages that resulted from the oil spill. The government did not comply with the discovery requests, nor did it attempt to quash the subpoenas. The government simply instructed eight of the ten employees not to submit to depositions. The two employees who did appear only answered selective questions.

Exxon then filed suit against the government to compel discovery. The government made two arguments to support its refusal to comply with the discovery requests. The government, relying on United States ex rel. Touhy v. Ragen,(11) claimed that the federal "housekeeping statute"(12) authorizes agency heads to prohibit employees from testifying in litigation in which the government is not a party. In addition, the government claimed that the principles of sovereign immunity control whether agency heads may prohibit employees from testifying. The district court decided in favor of the government.

The Ninth Circuit reversed and remanded. The Ninth Circuit held that the federal rules of discovery apply to requests made for discovery against the federal government, whether the government is a direct party to the underlying litigation or not. In addition, the head of a federal agency cannot use the federal housekeeping statute to conclusively prohibit government employees from complying with a valid discovery request. Rather, a court must use the balancing test employed in the federal rules of discovery to weigh the needs of the party seeking discovery against the government's interest in not becoming a "speakers bureau for private litigants." This decision rejects several federal court decisions upholding the government's authority to deny valid discovery requests.(13)

2. Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769 (9th Cir. 1994).

The Alaska Sport Fishing Association (ASFA) brought a class action against the Exxon Corporation for lost-use damages sustained from the Exxon Valdez oil spill. ASFA alleged injuries based upon various common law torts, including negligence and nuisance, and the violation of a state statute imposing strict liability for the release of hazardous substances. After ASFA filed its complaint, the United States Government and the State of Alaska, acting as trustees for the public under 33 U.S.C. [sections] 1321 of the Clean Water Act (CWA) and 42 U.S.C. [sections]] 9607(f)(1) of the Comprehensive Enviroramental Response, Compensation, and Liability Act (CERCLA),a filed a suit against Exxon seeking damages for environmental restoration and compensation for lost public use. The governments eventually entered into a consent decree with Exxon, in which Exxon agreed to pay at least $900 million for natural resource damages that resulted from the oil spill.

After the court entered the consent decree, Exxon moved for summary judgment against ASFA and several other plaintiffs who had filed similar suits for lost-use damages. Exxon argued that the consent decree and doctrine of res judicata precluded any other claims for public damages. The district court dismissed the complaint under the doctrine of res judicata, holding that the governments had recovered for all public injury and that ASFA failed to allege any private claims. ASFA appealed.

On appeal, ASFA argued that the governments, acting as trustees for the public under the CWA and CERCLA, did not have the authority to recover for all lost-use damages that resulted from the Exxon Valdez oil spill. Instead, ASFA claimed that the Natural Resource Damage Assessment (NRDA) regulations promulgated by the Department of the Interior under CERCLA only allow the governments to recover for "residual" resource injury; that is, resource injuries left unaddressed by response actions. ASFA argued that it maintained a separate and distinct cause of action for lost-use damages that occurred both prior to and during cleanup.

The Ninth Circuit disagreed and affirmed the district court. Noting the legislative history of CERCLA and the CWA, relevant case law, and NRDA regulations, the court held that government trustees can recover for all lost-use damages from the time of the release until the end of restoration. ASFA, as a member of the public, was held to be in privity with the governments and the government had the authority to recover the same damages sought by ASFA. The doctrine of res judicata barred ASFA's claims.

3. Eyak Native Village v. Exxon Corp., 25 F.3d 773 (9th Cir. 1994), cert. denied, 115 S. Ct. 351 (1995).

The plaintiffs challenged the removal of their suits from the Alaska state court to federal court. The defendants were the Exxon Corporation and the Alyeska Pipeline Service Company. The defendants removed the suits to federal court on the basis of a federal question.

The federal question arose because the United States and the State of Alaska previously settled with the defendants in a consent decree, in which the defendants would pay $900 million to restore and rehabilitate the damaged areas and provide $100 million for unexpected damages. In exchange, the United States and Alaska agreed to release the defendants from all claims, including any natural resources claims on behalf of the public. Exxon argued that the plaintiffs' claims presented a federal question, because the plaintiffs were pursuing their claims after the court had entered a federal consent degree. Alyeska argued that the plaintiffs' claims presented a federal question because the plaintiffs challenged a 1979 federal district court decree that enjoined the state from enforcing the Alaska Tanker Law.

The Ninth Circuit held that the removal of the plaintiffs' claims by Exxon was proper and timely. The court further held that the removals made by Alyeska were improper because they were untimely.

II. Natural RESOURCES

A. Endangered Species Act

1. Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994), infra part II. C.

2. Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 11 5 S. Ct. 1 793 (1995), intra part Il. C.

3. Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 25 F.3d 872 (9th Cir. 1994).

Northwest Resources Information Center (NRIC) brought suit against the Bonneville Power Administration (BPA), the Army Corps of Engineers, the Bureau of Reclamation, and the National Marine Fisheries Service, claiming violations of the Endangered Species Act (ESA), its implementing regulations, and the Administrative Procedure Act. BPA moved to dismiss the action for lack of jurisdiction. The district court granted the motion, and NRIC appealed.

NRIC sought to compel the defendants to engage in adequate and comprehensive consultation regarding the potential impact of the Columbia River Power System on threatened and endangered salmon on the Snake River, to provide sufficient conditions for migrating fish to ensure their survival, and to minimize to the extent practicable the incidental taking of the listed species by the power system.

In upholding the district court's dismissal for lack of jurisdiction, the Ninth Circuit held that it has exclusive jurisdiction to review challenges to final BPA actions. The Northwest Power Act provides that any suits to challenge final BPA actions, or the implementation of such final actions, shall be filed in the Ninth Circuit.

NRIC argued that violations of the ESA are not authorized by the Northwest Power Act and that the specific authorization of citizen suits under the ESA should control. The Ninth Circuit rejected this argument and ruled that the Water Management Record of Decision was a final agency action subject to exclusive Ninth Circuit jurisdiction under the Northwest Power Act. Furthermore, the court stated that the specific jurisdictional requirements under the Northwest Power Act take precedence over general ESA requirements.

4. National Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508 (9th Cir. 1994).

The National Wildlife Federation (NWF) sought a preliminary injuction against Burlington Northern Railroad (Burlington) under the Endangered Species Act (ESA). NWF claimed that Burlington violated the ESA by modifying grizzly bear feeding behavior as a result of a series of accidental corn spills along Burlington tracks in northern Montana. The NWF also alleged that Burlington violated the ESA when Burlington trains struck and killed seven grizzly bears allegedly attracted to the new food source at the spill sites. The district court held that Burlington had violated the ESA's prohibition against the "taking" of grizzly bears but that NWF had "failed to establish the possibility of irreparable injury as a result of BN's past violation of the ESA." As a result, the district court denied NWF's motion for a preliminary injunction and the Ninth Circuit affirmed. The Ninth Circuit did not dispute that the operation of a railroad in bear country "produces some risk" to the dwindling grizzly bear population and that the corn spill heightened that risk." However, the court stressed that since the Burlington cleanup three years ago, no trains have hit any bears in the area. The court found no clear evidence that Burlington operations win result in future grizzly bear deaths.

The Ninth Circuit also rejected NWF's contention that Burlington's corn spill constituted an ongoing taking through habitat modification. NWF, relying on Palila v. Hawaii Department of Land & Natural Resources, (14) argued that because the spill site had attracted grizzly bears in the past, it would continue to attract bears in the future. This habitat modification placed the bears at future risk. In rejecting NWF's argument, the court simply noted that NWF failed to show significant habitat modification ... where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."

B. Fish and Wildlife

1. Northwest Resource Information Center, Inc. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), infra part II.D.

2. Craft v. National Park Service, 34 F.3d 918 (9th Cir. 1994).

The plaintiffs appealed a district court order affirming the assessment of administrative penalties by the National Oceanic and Atmospheric Administration (NOAA) for violations of the Marine Protection, Research, and Sanctuaries Act. The violations arose from a diving trip that the plaintiffs took within the Channel Islands National Marine Sanctuary (CINMS). To protect areas within the CINMS, NOAA promulgated regulations prohibiting "the removal or damage of cultural or historical resources" and any alteration of the seabed. The violations resulted when the appellants removed artifacts from several shipwrecks and excavated the seabed with hammers and chisels.

The Ninth Circuit affirmed the district court's rejection of the appellants' constitutional overbreadth and vagueness arguments. The court noted that the appelants' overbreadth argument requires that the regulation or law in question prohibit 'a substantial amount of constitutionally protected conduct." Because the appellants failed to point to any constitutional right prohibited by the NOAA regulations, the court would not sustain the challenge.

The court next addressed the appellants' vagueness argument. The proper standard of evaluation for the court is whether the regulation "give[s] a person of ordinary intelligence adequate notice of the conduct it proscribes." The appellants argued that the prohibition on "altering" followed the terms 'construction," laying of pipeline," and dredging," indicating that the prohibition applied only to major industrial and commercial actions. The court rejected the appellants' argument, noting that the existence of listed exceptions within the regulations suggested that the regulations allow all alterations other than those specifically exempted.

3. Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 11 5 S. Ct. 1 793 (1995), infra part II. C.

4. Earth Island Institute v. Brown, 28 F.3d 76 (9th Cir.), cert. denied, 115 S. Ct. 509 (1994).

The Ninth Circuit held that under the Marine Mammal Protection Act (MMPA) the Court of International Trade (CIT) had exclusive jurisdiction to hear a case involving a ban on yellowfin tuna and tuna products. The case followed the reasoning of previous Ninth Circuit (Earth Island Institute v. Christopher)(15) and U.S. Supreme Court precedent (K Mart Corp. v. Cartier, Inc.),(16) holding that a ban on importation constituted an embargo under 28 U.S.C. [sections] 1581.(17)

The plaintiffs brought suit to require the government to comply with the MMPA and implement bans on the importation of yellowfin tuna from "intermediary nations" as mandated by 16 U.S.C. [sections] 1371(a)(2)(C) of the MMPA. The defendants argued that under the plain meaning of "embargo," CIT had exclusive subject matter jurisdiction over the dispute. The plaintiffs responded that the importation ban did not constitute an embargo, because the ban established conditions precedent to the importation of tuna but allowed unlimited importation of tuna that met those conditions. The Ninth Circuit rejected the plaintiffs' argument.

The plaintiffs also argued that the 1980 amendments to [sections] 1581 were not intended to expand the CIT's jurisdiction beyond its traditional role of adjudicating trade issues. The Ninth Circuit disagreed and found that Congress intended to eliminate confusion over CIT's jurisdictional boundaries by articulating a bright-line rule that gave CIT exclusive jurisdiction over all embargo cases. The court also noted that in K Mart Corp., the Supreme Court found that [sections] 1581 extended CIT'S jurisdiction to all types of embargoes. Consequently, the Ninth Circuit vacated the district court's injunction and remanded for further proceedings.

5. Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 25 F. 3d 872 (9th Cir. 1994), supra part II.A. 1.

6. Pacific Northwest Venison Producers v. Smith, 20 F.3d 1008 (9th Cir.), cert. denied, 115 S. Ct. 297 (1994).

The Washington State Department of Wildlife (WDW) issued regulations that prohibited the private ownership and exchange of fallow deer, sika deer, elk, mouflon sheep, and other species of native wildlife. WDW passed the regulations to protect Washington's native wildlife from disease and competition for food and habitat. Pacific Northwest Venison Producers (PNVP) is an agricultural collection of commercial game farms in Washington, and it challenged the regulations as violations of the Dormant Commerce Clause in Article 1, section 8 of the U.S. Constitution.

The Ninth Circuit held that the regulations did not violate the Dormant Commerce Clause. The court found that the importation ban was not discriminatory, because WDW had not created the ban for economic protectionism nor to give Washington citizens a special benefit. The court found that this ban applied equally to in-state and out-of-state interests and, thus, was not discriminatory. However, this decision contradicts Dorrance v. McCarthy,(18) in which the Tenth Circuit held that state regulations that ban the importation of certain wildlife species are per se discriminatory.

PNVP argued that the regulations were discriminatory because a "grandfather clause" allowed Washington residents to continue to hold and sell the animals that were already within the state when the legislature adopted the regulation. The court found that this provision was not discriminatory, because it offered no real benefit to Washington residents as the residents could not propagate the animals and the clause did not protect the residents' economic investments.

The court then balanced the public interest in the regulations against the regulations' effect on interstate and foreign commerce and held that Washington had a legitimate interest in protecting its native wildlife. Because the regulations are not discriminatory, PNVP would need to have shown that the impact on interstate commerce outweighed the state's interest in protecting its wildlife to show a violation of the Dormant Commerce Clause. PNVP could not make U& showing. Instead, the court said that protecting the state's wildlife from genetic impurity, disease, and infringement by captive herds were legitimate interests. Under U& balancing test, Washington's interest outweighed the impact on interstate and foreign commerce. Thus, the court granted summary judgment in favor of WDW.

PNVP also argued that there were less discriminatory alternatives, such as testing for disease, tagging animals, heavy fencing, or more law enforcement. The court said that these suggestions were insufficient to counter WDW's affidavits from experts stating that these alternatives were ineffective in other states.

C. Forests

1. Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994).

Janicki Logging Company (Janicki) contracted with the U.S. Forest Service (Forest Service) to cut and remove timber from the Mt. Baker-Snoqualmie National Forest. Under this contract, the Forest Service could either cancel or unilaterally modify the contract terms to provide additional protection for animals listed as threatened or endangered under the Endangered Species Act (ESA) or as sensitive by the Regional Forester. The parties made the contract expressly subject to the Contract Disputes Act (CDA). Subsequently, a state wildlife biologist discovered a Northern Spotted Owl's nest in "Unit 1" of the acreage subject to the contract. The Forest Service then unilaterally modified the contract by deleting Unit 1 from its terms.

Janicki initially filed a claim for damages with the Forest Service, asking for more than $380,000. The Forest Service granted Janicki more than $128,000. Janicki responded by filing: 1) a Bivens(19) action in district court for violating Janicki substantive due process rights and 2) a separate action against the United States in the United States Claims Court,(20) Claiming breach of contract, taking of property, and denial of substantive due process.

The claims court dismissed Janicki's complaint for three reasons: 1) Janicki did not Me the claim within one year of the decision; 2) the claims court lost jurisdiction when Janicki filed its district court action; and 3) the claims court did not have jurisdiction to grant relief based upon the Fifth Amendment's Due Process Clause. The district court held that because the CDA created a comprehensive remedial scheme for breaches of contract by the federal government, it did not have subject matter jurisdiction over the Bivens action. Janicki then requested that the district court allow Janicki to amend its complaint and transfer the amended complaint to the claims court. The court refused Janicki's request.

On appeal, the Ninth Circuit held that district courts do have subject matter jurisdiction over Bivens actions. The court then proceeded to the merits of Janicki's appeal by considering the effect of the CDA upon the Bivens claim and the district court's refusal to allow the action's amendment and transfer.

The Ninth Circuit determined that the CDA precluded a Bivens action by Janicki, citing Supreme Court precedent that held that a Bivens action will not he when Congress created 'comprehensive procedural and substantive provisions giving meaningful remedies against the United States."(21) The Ninth Circuit gave great deference to a congressional statutory mechanism for remedying harm and barred nonstatutory claims in this case.

The Ninth Circuit then held that Janicki could not amend and transfer its action to the claims court. Federal Ride of Civil Procedure 16 requires a showing of good cause for late amendment requests, and Janicki had shown no good cause, because failure to sue upon the breach of contract in a timely and proper fashion is not good cause. The court also found that Janicki could not amend its complaint under Federal Rule of Civil Procedure 15(a), because a court will not allow such an amendment when it would cause the opposing party undue delay, would prejudice the opposing parties, or is sought in bad faith. Here the court found undue delay and prejudice would occur, because Janicki made no attempt to join the United States until almost three years after Janicki first filed suit. Thus, the court affirmed the district court's denial of amendment and transfer of the complaint.

2. Smith v. United States Forest Service, 33 F.3d 1072 (9th Cir. 1994).

Under the Washington State Wilderness Act (WSWA), the U.S. Forest Service (Forest Service) must consider classifying lands as wilderness prior to authorizing development in a roadless area if 1) the Forest Service did not inventory the area and 2) the area is larger than five thousand acres. The plaintiff challenged a timber sale in Washington's Colville National Forest, contending that the Forest Service's assessment of the environmental impact of the sale was inadequate for two reasons: 1) it violated the WSWA, because the sale area contained more than five thousand contiguous acres of unroaded land that had never been considered by the Forest Service for wilderness classification; and 2) the Forest Service failed to address, in its National Environmental Policy Act (NEPA) documents, the effect of the sale on a separate six-thousand-acre roadless area that was partially inventoried.

The Forest Service initially argued that the plaintiff had failed to exhaust his administrative remedies, because he did not challenge the decision in the Forest Service's 1988 Forest Plan. The Forest Service based this argument on the contention that Idaho Conservation League v. Mumma(22) represents a determination that plaintiffs must challenge site-specific projects proposed in a Forest Plan only at the Forest Plan stage. The Ninth Circuit rejected this argument as an inaccurate extension of Idaho Conservation League's holding.(23)

However, the Ninth Circuit held that the area was not roadless and did not require WSWA protection because a jeep trail intersected the area, splitting the area into two parcels of less than five thousand acres. Although the plaintiff challenged the Forest Service's classification of the trail as a "road," the Ninth Circuit found this classification reasonable.

Nevertheless, the Ninth Circuit reversed the district court's denial of an injunction, because the Ninth Circuit concluded that its decision in National Audubon Society v. United States Forest Service(24) requires the Forest Service to consider the effect of the proposed sale upon a five-thousand-acre roadless area even though the area includes some inventoried lands. The Forest Service argued that the WSWA relieves them of any obligation to consider the inventoried roadless lands. However, the Ninth Circuit found that a release of land by Congress for nonwilderness use did not excuse the Forest Service from complying with its NEPA obligations when implementing a land-use program.

3. Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995).

The Ninth Circuit held that the Land and Resource Management Plans (LRMPs) produced by the U.S. Forest Service Forest Service) were continuing agency actions under [sections] 7(a)(2) of the Endangered Species Acta (ESA) (16 U.S.C. [sections] 1536(a)(2)) and that the Forest Service had failed to enter into consultation as required by the same section. The court then enjoined ongoing and announced timber, range, and road projects until the district court determined whether, under [sections] 7(d), the projects were irreversible and irretrievable commitments of resources that a court must enjoin during consultation.

In 1990, the Forest Service promulgated the Wallowa-Whitman and Umatilla Forest LRMPs. In 1992, the National Marine Fisheries Service (NMFS) listed the Snake River chinook as a threatened species. A subsequent review of ongoing projects in the forests determined that over 700 projects were "likely to adversely affect" the salmon. The Forest Service suspended all of these projects pending formal consultation with NMFS. The Forest Service found 1,200 projects would not affect the salmon, and 1,700 projects were "not likely to adversely affect" the salmon. The Forest Service submitted the latter projects to NMFS for informal consultation. However, the Forest Service allowed ongoing projects to continue during the informal consultation.

Pacific Rivers Council (PRC) sued the Forest Service, claiming it had violated [sections] 7(a)(2) by not consulting with NMFS on the effects the two LRMPs would have on the Snake River chinook. The district court granted PRC summary judgment and enjoined the Forest Service "from announcing, awarding or conducting any additional timber sales, range activities/grazing permits, or road building projects pending compliance with ESA [sections]7." However, the district court refused to enjoin any of the ongoing or announced timber, range, and road projects, because the Forest Service had determined that these activities were not irreversible or irretrievable commitments of resources. Both parties appealed.

The Forest Service claimed that the district court erred in holding that LRMPs are agency actions under [sections]7(a)(2), because LRMPs are not ongoing, except when the agency is adopting, revising, or amending the plans. Furthermore, NMFS listed the Snake River chinook after the Forest Service adopted the LRMPs. The Court held that because every project in the national forests must be consistent with the relevant LRMP, "the LRMPs have an ongoing and long-lasting effect after adoption ... [and] the LRMPs represent ongoing agency action." Consequently, the Ninth Circuit affirmed the district court's order requiring the Forest Service to consult with NMFS under [sections]7(a)(2) of the ESA.

The district court had refused to enjoin ongoing and announced projects in the forests that may affect the Snake River chinook, because the Forest Service determined that the projects were not irreversible or irretrievable commitments of resources under [sections]7(d) of the ESA. The Ninth Circuit disagreed and, noting the Act's plain language, held that [sections]7(d) applied only after an agency has initiated consultation under [sections]7(a)(2). Because there was no consultation, this section did not apply. This interpretation is consistent with the Ninth Circuit's previous decision in Conner v. Burford.(25)

The Ninth Circuit did not rule on the district court's decisions regarding whether the commitments of resources were irreversible and irretrievable but suggested that the Forest Service look to Lane County Audubon Society v. Jamison,(26) in which the Ninth Circuit held that timber sales constitute per se irreversible and irretrievable resource commitments.

4. United States v. Hoff, 22 F.3d 222 (9th Cir. 1994).

In a case of first impression, the Ninth Circuit affirmed the defendant's conviction for intimidating a U.S. Forest Service Ranger, in violation of 36 C.F.R. [sections]261.3(a). The Ranger cited the defendant for being in the wilderness without a permit. When the Ranger returned the next day, she saw the defendant and his friends still at the illegal campsite. The defendant instructed his companion's growling dog to attack the Ranger, but the dog made no move. The facts did not indicate whether the Ranger observed that the dog was tied up, but the facts did indicate that the Ranger felt intimidated and departed without further attempting to approach the defendant or issue another citation.

The Federal Regulations prohibit "[tlhreatening, resisting, intimidating, or interfering with any forest officer engaged in or on account of the performance of his official duties in the protection, improvement, or administration of the National Forest System." The defendant asserted that the judge erred by "focusing exclusively on `intimidating' instead of `threatening' or `interfering."' Relying on Rose v. United States Postal Service,(27) the court rejected this argument, because the statute employs the disjunctive "or."

The defendant also alleged that the district court erred, because the First Amendment protected his attempt to incite the dog to attack. The court disagreed with the defendant and upheld the district court's interpretation. The Ninth Circuit held that "[defendant's] statements failed to meet any conceivable definition of protected speech"; specifically, the defendant's speech did not constitute criticism, but rather "fighting words." Under the circumstances, the defendant's words carried an immediate intention to harm the Ranger, and it was objectively reasonable for the Ranger to feel intimidated.

5. Northwest Motorcycle Ass'n v. United States Department of

Agriculture, 18 F.3d 1468 (9th Cir. 1994).

An off-road vehicle (ORV) association sought injunctive and declaratory relief following the U.S. Forest Service's (Forest Service) decision to close designated forest trails to ORV use. The plaintiffs claimed that this decision illegally resolved the alleged conflict between hikers and ORV users by arbitrarily closing the trails to the latter group, and that the Forest Service's decision created an illegal buffer zone around a nearby Wilderness Area.

The Ninth Circuit found that the Forest Service's decision to close the trails to ORV use was reasonable. The court determined that the Forest Service's reliance on user comments regarding the adverse effects of ORV use was sufficient, because the existence of human conflict "cannot be numerically calculated or counted." The Forest Service was under no obligation to establish actual on-the-ground confrontations between users, because 36 C.F.R. [sections]295.2(a) commands restricting ORV use when there is a future likelihood that adverse effects would result from ORV use. The Ninth Circuit found the Forest Service's determination that the noise, dust, trail damage, exhaust, and safety concerns caused by ORV use "conflicted" with nonmotorized trail use was sufficiently reasonable to find "future likelihood" of adverse effects.

The Ninth Circuit also held that although the Washington State Wilderness Act of 1984 (WSWA) prohibits the creation of buffer zones around designated Wilderness Areas, this did not necessitate reversing the Forest Service's decision. The WSWA prohibits use restrictions on nonwilderness areas based solely on the potential wilderness impact. However, the Forest Service can consider such an impact as a factor in developing land and resource management plans for nonwilderness areas. Here, the Forest Service's primary reason for precluding ORVs was to reduce "user conflicts." The court found that the potential wilderness impact was merely a factor in the Forest Service decision and, thus, did not invalidate the Forest Service's decision.

D. Hydroelectric Power 1. Pacific Northwest Generating Cooperative v. Brown, 38 F.3d 1058 (9th Cir. 1994).

The Ninth Circuit held that a contingency of utilities, large industrial power users, and a generation and transmission cooperative had standing to bring a suit alleging that the response of the Secretary of Commerce and other federal agencies to the listing of three species of Snake River Salmon as endangered or threatened violated both the Endangered Species Act (ESA) and Administrative Procedure Act (APA). However, the Ninth Circuit, in affirming the district court's dismissal, held that even though the plaintiffs' real economic interest in the status of the salmon qualified for standing, the plaintiffs could not prevail on the merits because their claims were either moot or founded on a misinterpretation of the ESA.

The plaintiffs relied heavily upon electricity generated from the federal dams within the Columbia River Basin. Following the listing of three species of Snake River salmon as threatened or endangered in 1991 and 1992, agencies increased water flows in the Columbia River System by spilling water at the dams in an effort to benefit the downstream migration of young salmon (smolts). A spill involves sending water over or through a dam rather than sending the water through the power turbines. This increased spill had the effect of decreasing the amount of water available for power production, which in turn raised the cost of power supplied from the dams. The group of plaintiffs, who purchased a large amount of power supplied from the dams, filed suit alleging that the federal agencies' response to the listing of the salmon violated various provisions of the ESA and APA. The plaintiffs' allegations focused on the belief that the federal agencies had placed too much emphasis on requiring spills; had not based their findings on the best scientific and commercial evidence; had failed to properly take into account the effects of fisheries, hatcheries, and harvest regulations on the salmon; and had failed to engage in adequate consultations as required under the ESA. The plaintiffs sought both declaratory and injunctive relief in an effort to enforce their interpretation of the ESA.

The district court, after analogizing the plaintiffs to a fox wanting to guard the chicken coop, ruled that all the plaintiffs lacked standing to bring their claims under the ESA. In the alternative, the court ruled that any alleged failure by the agencies to properly consult was moot. The court rejected outright the plaintiffs' other claims under the ESA. On appeal, the Ninth Circuit, however, while rejecting the plaintiffs' standing arguments based on noneconomic grounds, reversed the district court and ruled that the plaintiffs' did have an economic interest in the defendants' response to the listing of salmon that created a legal interest protected by the ESA, and thus, the plaintiffs' had standing under the test outlined in Lujan v. Defenders of Wildlife.(28)

However, the Ninth Circuit upheld the lower court's decision that the plaintiffs did not overcome other barriers necessary to reach the merits. The Ninth Circuit also upheld the lower court's decision that the plaintiffs founded their harvesting claims on a misinterpretation of the ESA and that the remainder of the plaintiffs' consultation claims were moot.

2. United States Department of Commerce v. Federal Energy Regulatory

Commission, 36 F.3d 893 (9th Cir. 1994).

In 1985, Guy Carlson filed with the Federal Energy Regulatory Commission (FERC) his intention to continue operating a small hydroelectric project next to his property. Carlson's hydroelectric project generated electricity consumed solely on his property for the operation of his house and other various needs. The project's three-foot high dam blocked the migration and spawning of anadromous fish above his dam.

If 16 U.S.C. [sections]817(1) of the Federal Power Act (FPA) requires a license, FERC must ensure that the project be best adapted to a comprehensive plan ... for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat)" under [sections]803. However, FERC determined that this project did not require a license under [sections]817(l), because the project did not occupy public lands, did not use surplus water from a federal dam, and did not generate power across state lines or into an interstate power system. The Department of Commerce, the Nez Perce Indian Tribe, the National Wildlife Federation, and the Idaho Wildlife Federation appealed the no-license order to FERC, arguing that Carlson's project required a license, because its impact on anadromous fish affected interstate commerce. FERC, by a 3-to-2 vote, rejected this argument, ruling that the project's effect on anadromous fish could never provide the sole basis for FERC jurisdiction, and even if it could, the effect of Carlson's project was too insubstantial to constitute such an effect. The petitioners sought judicial review.

Before the Ninth Circuit, FERC argued for a restrictive interpretation of [sections]817(1). FERC contended that a project affects interstate commerce only if it affects the navigable capacity of a waterway or generates power for interstate transmission. The Ninth Circuit rejected this argument and remanded the case to FERC for further proceedings pursuant to the opinion.

The Ninth Circuit held that the FPA grants FERC licensing jurisdiction when the "interests of interstate ... commerce would be affected by the construction, maintenance or operation of 'a dam or other project across, along, over, or in any stream ... over which Congress has jurisdiction ... to regulate commerce.'" Because Congress's commerce powers extend to the protection of anadromous fish from the Columbia River Basin, and because Carlson's project affects the spawning area of anadromous fish in the Basin, the project has an impact on interstate commerce. The court also rejected FERC's claim of Chevron(29) style deference, noting that the FPA's jurisdictional reach was not ambiguous and, thus, there was no requirement to defer to the agency's interpretation.

Even though the Ninth Circuit believed there was substantial evidence to show Carlson's project had a substantial impact on anadromous fish and, thus, upon commerce, the court nevertheless remanded the case to FERC. On remand, the court ordered FERC to develop a complete record on whether the impact of Carlson's project is "too insubstantial" to affect commerce and to require a license under the FPA.

Judge Stephen Trott dissented in two respects. First, he believed that the court should have deferred to FERC's reasonable interpretation of the FPA, because Congress intended FERC to interpret the statute and FERC's interpretation was reasonable. In addition, Judge Trott believed Congress only intended FERC to have licensing authority over projects that impact either the navigability of waterways or interstate electrical power. Here, the project affected neither and so FERC reasonably concluded that Carlson did not need a license.

3. Northwest Resource Information Center, Inc. v. Northwest Power

Planning Council, 35 F.3d 1371 (9th Cir. 1994).

Environmental organizations, the Yakima Indian Nation, and large industrial purchasers of federal hydropower (Direct Service Industries or DSIs) challenged final amendments promulgated by the Pacific Northwest Electric Power and Conservation Planning Council (Council) to its fish and wildlife program Program) for the Columbia River Basin. The Ninth Circuit held that the Council violated the Northwest Power Act (NPA) and the Administrative Procedure Act (APA) by failing to provide a sufficient statutory basis for rejecting fishery managers' recommendations on stream flow requirements necessary to protect salmon species and by falling to evaluate proposed measures against sound biological objectives. The Ninth Circuit also stressed that the Council appeared to give insufficient deference to the recommendations of the fishery managers.

Under the NPA, Congress established the Council and directed it to create a "program to protect, mitigate, and enhance" fish and wildlife in the Columbia River Basin "to the extent affected by the development and operation" of the Basin's hydropower system. Congress intended that fish and wildlife would be a co-equal partner with the hydropower industry. At the same time, in an attempt to balance environmental and power considerations, the NPA also states that fish and wildlife protection efforts cannot jeopardize "an adequate, efficient, economical, and reliable power supply."

In developing its 1992 fish and wildlife program, the Council received numerous proposals in response to its request for potential amendments. In the end, the Council's strategy was to chart a path without including any obvious biological objectives. The plaintiffs filed suit challenging the Council's Program. While each group of plaintiffs had different arguments for revising the Program, all agreed that the Council had failed to adequately explain its conclusions regarding flow decisions and had failed to apply the proper NPA standards.

In reviewing the complaints of the environmental interests and the Yakima Nation, the Ninth Circuit held that the Council had failed to properly explain its rejection of the fishery managers' recommendations. The NPA requires that the Council "shall explain in writing, as a part of the program," a statutory basis for rejecting recommendations. Thus, because the final Program failed to explain the Council's reasons for rejecting the fishery managers' recommendations, as required by the NPA, the court remanded the matter with instructions that the Council comply with the statutory explanation requirement.

The court went on to give the Council some guidance in its efforts to balance fish and wildlife goals with economic and power needs. The court noted that if reconciliation of conflicting fish and wildlife recommendations is required, the Council is required to give "a high degree of deference ... to [tribal and state] fishery managers'... recommendations for program measures."

The DSIs argued that the Council violated the NPA by tilting the Program too far in favor of fish and wildlife at the expense of economic and power needs. The DSIs argued that by failing to conduct a cost-benefit analysis with regard to. potential economic impacts of the spill measures outlined in its Program, the Council had violated the NPA. In addition, they argued that the economic impacts of the program would violate the NPA's requirement that the Council's Program assure 'an adequate, efficient, economical, and reliable power supply' for the region. The court rejected these contentions, noting that nothing in the Act required cost-benefit analysis and that a fish and wildlife measure cannot be rejected solely because it will result in power losses and economic costs.

4. United States v. Pend Oreille P.U.D. No. 1, 28 F3d 1544 (9th Cir.

1994), cert. denied, 115 S. Ct. 1356 (1995), infra part III.

E. Water Quantity

1. Wetlands Water District v. Natural Resources Defense Council, 43

F.3d 457 (9th Cir. 1994).

Water districts brought action to enjoin the implementation of [sub sections]3406(b)(2) and (d)(1) of the Central Valley Project Improvement Act (CVPIA) (Reclamation Projects Authorization and Adjustments Act of 1992, [sub section]3406(b), (b)(2), (d)(1), 106 Stat. 4600). These subsections require the Secretary of the Interior (Secretary) to dedicate, manage, and deliver specified amounts of water for wildlife purposes. The water districts claimed that the Secretary had to first complete an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA).

The Ninth Circuit held that the relevant provision of CVPIA irreconcilably conflicted with NEPA, and, thus, the Secretary did not need to provide an EIS under those provisions. Although NEPA applies to the fullest extent possible, if NEPA conflicts irreconcilably with a statute, NEPA'S requirements do not apply. A statute conflicts irreconcilably if it mandates a fixed time period for implementation that is too short to allow an agency to comply with NEPA's requirements. The court found that [sub sections]3406(b)(2) and (d)(1) irreconcilably conflict with NEPA. These subsections contain language requiring action upon enactment of this title." Thus, Congress intended that the two subsections would take effect immediately without any time to complete an EIS, creating an irreconcilable conflict with NEPA.

The water-districts claimed that [sections]3406(b), requiring the Secretary to immediately meet all obligations under state and federal law, superseded the language in [sub sections]3406(b)(2) and (d)(1). The Ninth Circuit disagreed, and by applying the canon of construction that "the specific governs the general," the more specific statutory language of $Z 3406(b)(2) and (d)(1) remained intact. The court reasoned that to do otherwise would not give effect to every clause of the statute.

Finally, the water districts claimed that the legislative history of [sections]3409 did not exempt the statute from NEPA. The Ninth Circuit dismissed this argument quickly and found the statutory language unambiguous and the legislative history of [sections]3409 uncompelling. Since [sub sections]3406(b)(2) and (d)(1) conflicted irreconcilably with NEPA, the court held these subsections exempt from NEPA's EIS requirement.

2. Akins v. Rodriguez, 15 F.3d 883 (9th Cir.), vacated, 26 F3d 105

(9th Cir. 1994).

This case involved a district court's ability to remand cases under the Colorado River Doctrine. The Ninth Circuit found that abstention was properly granted, but the court reversed the district court's remand order because, under Ninth Circuit precedent, a court must stay a federal action in which it abstains under the Colorado River Doctrine rather than remand the case. The Ninth Circuit later vacated this opinion and ordered the district court to vacate its judgment after the parties filed a motion for a stipulation for dismissal with prejudice.

III. Native RIGHTS 1. Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991 (9th Cir.

1994).

When Congress enacted the Alaska Native Claims Settlement Act (ANCSA), it required native villages to form corporations. Congress patented surface estates to the village corporations and patented subsurface estates to regional corporations. The plaintiff was the regional corporation that owned the subsurface land underlying the surface estate of the defendant's native village corporation. The defendants used sand, gravel, and rock from the plaintiff's subsurface without paying for the use. This case presented the issue of whether native village corporations have rights to use the subsurface sand, gravel, and rock as incidental to the use and enjoyment of the surface estates. The Ninth Circuit held that the village corporations do have a right to use the materials but must pay for the use.

The defendants argued that they had an easement of necessity to use the plaintiffs materials. The court looked to several factors, including congressional intent, necessity, consideration, and simultaneous conveyance. The court found that the legislative history of ANCSA clearly shows that Congress meant the surface estate owners to use the surface estates for economic development. This led to the conclusion that Congress's intent would be meaningless without an ability to use subsurface rock for development. The court, therefore, found it necessary for the village corporations to use the plaintiffs rock because no other practical source of rock existed. The court also found that because the land was simultaneously conveyed to both parties, the United States retained no interest in the land, leading to an easier case for implied easement. The court concluded, therefore, that the defendants must be allowed access to the plaintiffs subsurface rock.

The defendants argued that they should not have to pay for the rock, because the plaintiff's subsurface estate was dormant, meaning that use of the rock without paying deprives the plaintiff of nothing because the plaintiff would not otherwise receive payment for the rock. The court found this argument flawed, because the defendants themselves would have to pay for the rock, and [sections]7(i) of ANCSA (43 U.S.C. [sections]1606(i)) contemplates revenue gains from the subsurface estate. The defendants therefore must pay for the materials that they used.

The district court imposed an injunction requiring the plaintiff to sell the rock at a certain price, but the Ninth Circuit vacated this part of the injunction. The Ninth Circuit found that before a court could step in and declare the remedy, the defendants had to show that the plaintiff refused to sell rock or sold for an unreasonably high price.

2. United States v. Gila Valley Irrigation District, 31 F.3d 1428 (9th Cir.

1994).

The plaintiff, the United States as trustee for the San Carlos Apache Tribe (the Tribe), brought suit to redress several grievances it had with a 1935 Consent Decree that determines water rights in the Gila River based on prior appropriation. The defendants, referred to as the Upper Valley Defendants (UVD), have water rights in the Upper Valley. The district court found for the Tribe, and the UVD appealed, arguing that the district court made six errors.

UVD first found error with the district court's decision that the Tribe can use unlined ditches in its diversion system. The district court said that requiring lined canals or pump systems, which are more efficient, would be too expensive for the Tribe. The UVD believed that evidence of the Tribe's poverty and hardship prejudiced the court's decision. The Ninth Circuit found no prejudice, and although the Tribe cannot unreasonably divert water, it is not required to be one hundred percent efficient. The Ninth Circuit found that the use of unlined ditches was therefore appropriate for the Tribe.

UVD's second claim was that the district court wrongly abolished the Water Commissioner's 1924(b) practice as outlined in the Consent Decree. The 1924(b) practice refers to a labeling system that differentiates between days when river flow is adequate to satisfy all water users, days when water is stored by the Gila River Indian Community (GRIC), and days when GRIC uses only its priority water rights. The 1924(b) practice specifically refers to days when the Water Commissioner retroactively labeled a day as a 1924(b) day. A 1924(b) day was a day when the Water Commissioner attributed water uses under a priority right system rather than under an apportionment right system. The Ninth Circuit held that the district court was justified in discontinuing the 1924(b) practice.

UVD's next argument was that the district court erred when it held that the UVD could not exercise their apportionment right in disregard of the Tribe's priority right. The UVD believed that use of their apportionment right over the Tribe's priority right actually deprived the Tribe of nothing, because the amount of water otherwise taken would not have been available to the Tribe. The court applied canons of construction to the Consent Decree, determined that ambiguities in the Consent Decree must be construed in the Tribe's favor, and held that a court must construe the UVD's apportionment rights as subordinate to the Tribe's priority right.

The UVD's fourth concern regarded the interpretation of the words "then being irrigated," because the Consent Decree says that water can be diverted from the Gila River only for land "then being irrigated." The Ninth Circuit upheld the district court's decision that the language was unambiguous and meant that the Water Commissioner could not include lands lying fallow and lands used for other farming purposes in the calculation of acreage being irrigated.

In conjunction with that interpretation, the Ninth Circuit also upheld the district court's decision that disallowed stacking. Stacking refers to the act of diverting water that is designated for fallow acres to acreage that is designated for irrigation. Despite the UVD's argument that the district court's decision was unreasonable for farming practices, the Ninth Circuit agreed with the district court that water users forfeit water designated for land that is not "then being irrigated." Stacking is therefore no longer an allowable practice.

The UVD's final argument was that the district court erred in preventing the UVD from diverting the entire flow of the Gila River just because the Consent Decree assured the Tribe a right to the "natural flow" of the river. The Ninth Circuit decided that the issue really involved water quality, and because the district court's decision was essentially an injunction and the UVD did not have an opportunity to contest the decision, the Ninth Circuit vacated the ruling on this issue for decision at a later time.

3. Public Service Co. of Colorado v. Shoshone-Bannock Tribes, 30 F.3d

1203 (9th Cir. 1994).

After the Shoshone-Bannock Tribes (the Tribes) passed a tribal resolution prohibiting the transport of spent nuclear fuel across their reservation, the defendant Tribes stopped the plaintiffs at the border of the reservation and refused to allow them to cross. The plaintiffs sued, claiming that the Hazardous Materials Transportation Act (HMTA) preempts the Tribes' resolution. The district court barred the lawsuit, because the court found that the Tribes have sovereign immunity. The Tribes then passed a new resolution that allowed transport of spent nuclear fuel across the reservation once a transferee obtained a permit. The plaintiff then appealed the district court decision. The Tribes argued that the lawsuit was moot, because the resolution had been modified to allow passage. The Ninth Circuit held that the suit was not moot, and HMTA preempted the tribes' sovereign immunity.

On the issue of mootness, the court pointed out that a change in the law does not always mean that the conflict is resolved. In this case, the Tribes replaced one resolution with another resolution that HMTA might also preempt. The conflict had, therefore, not been resolved, and the case was not moot. Judge Harry Pregerson dissented, arguing that the case was moot because the plaintiffs never proved that their grievance continued to present itself under the new resolution.

The majority noted that Congress can abrogate a tribe's sovereign immunity by a clear expression in a statute. The court found such an expression in 49 U.S.C. App.[sections]1811. According to the court, [sections]1811 clearly indicates that Congress meant tribes to be sued in court whenever tribes pass regulations that HMTA allegedly preempts. Because HMTA abrogates tribal sovereign immunity, the court remanded the case to the district court to decide whether HMTA also preempts the Tribes' subsequent resolution.

4. In re Blue Lake Forest Products, Inc. v. Hongkong & Shanghai

Banking Corp., 30 F.3d 1138 (9th Cir.), cert. denied, 115 S. Ct. 670

(1994).

The Ninth Circuit held that federal laws that provide heightened protection to timber held in trust for Indians preempt state commercial laws when a conflict between the two exists. The plaintiff is an Indian tribe that sold timber held in trust to Hoopa Forest Industries (HFI), who in turn sold the timber to Blue Lake Forest Products (Blue Lake). Blue Lake could not pay for a significant amount of the timber, making HFI unable to pay the plaintiff. Blue Lake filed for bankruptcy and was allowed by the bankruptcy court to process and sell the timber in question. The contract, statute, and regulations make clear that title to the timber does not pass to the buyer until the buyer has paid for the items. The dispute in this case arose because the plaintiff and the defendant creditor of Blue Lake both claimed title to the proceeds from Blue Lake's sale of the timber.

The plaintiff argued that title never passed to Blue Lake, so the money belonged to the tribe. The defendant argued that it was a good faith purchaser under the Uniform Commercial Code's meaning and, thus, could take title to the proceeds from the sale of property in which it held a security interest.

The court found that federal laws do provide heightened protection for timber that the United States holds in trust for tribes and held that these laws preempt state commercial laws. The court reasoned that tribal issues that take place on-reservation are not subject to normal preemption standards. As in this case, when the issue involved Indians and non-Indians on the reservation, the court must look to the state, federal, and tribal interests and balance them to decide whether federal law preempts state law. The court pointed out that in such situations, federal law can preempt state law by other than an explicit congressional statement. The court found a significant federal interest in regulating timber on tribal land and in the federal government's trust relationship with the tribes. The state's interest was minimal because it only intended to protect good faith purchasers. The balance, therefore, tipped in favor of the tribe and federal law. This gave the tribe title to the proceeds from the sale, and the federal law preempted the state commercial laws to the extent that the state laws would produce a different outcome.

5. United States v. Oregon, 29 F.3d 481 (9th Cir.), amended 43 F.3d 1284 (9th Cir. 1994), cert. denied sub nom., Confederated Tribes of Colville Reservation v. Yakima Indian Nation, 115 S. Ct. 2246 (1995).

The Confederated Tribes of the Colville Reservation (Colville) sought to intervene in litigation that began in 1968 to determine treaty fishing rights on the Columbia River and its tributaries. The Colville claimed that six of its tribes, the Wenatchi, Entiat, Chelan, Columbia, Palus, and the Chief Joseph Band of Nez Perce, retained fishing rights through the Yakima and Nez Perce Treaties of 1855. The Yakima Indian Nation, the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Reservation, the Nez Perce Tribe of Idaho, and the Shoshone-Bannock Tribes had already intervened in this case to protect their treaty rights from encroachment. The court denied the Colville's motion to intervene.

In order to determine whether the six Colville tribes retained fishing rights through the federal government's treaties with the Yakima Indian Nation and the Nez Perce Tribe, the Ninth Circuit considered whether the Colville maintained political cohesion with those tribal entities.

The court found that with respect to the Yakima Treaty, the Wenatchi, Entiat, Chelan, Columbia, and Palus Tribes never moved to the Yakima Reservation but instead continued nomadic living and later negotiated their own treaties with the federal government. Because the tribes separated from the Yakima Indian Nation, and because the Yakima Nation exercised its treaty fishing rights while the five tribes did not, the five tribes failed to maintain political cohesion and did not retain any treaty fishing rights.

The Chief Joseph Band of Nez Perce likewise failed to maintain political cohesion with the Nez Perce Tribe of Idaho, because the Chief Joseph Band did not sign the treaty of 1863 and never moved to the Nez Perce Reservation. The Chief Joseph Band of Nez Perce, therefore, also does not retain any treaty fishing rights.

6. United States v. Pend Oreille P.U.D. No. 1, 28 F.3d 1544 (9th Cir. 1994), cert. denied, 115 S. Ct. 1356 (1995).

The United States brought suit on behalf of the Kalispel Indian Tribe (the Tribe) for damages and an injunction because of flooding caused by the defendant's hydroelectric darn project. In previous litigation, the court decided that the defendant had trespassed on the Tribe's reservation by raising the level of the river to flood the land, and the court awarded damages to the Tribe for the trespass. In this case, the defendant argued that the district court should not have dismissed its claim for declaratory relief from the damages calculation and award of prejudgment interest. The Tribe claimed that the damage award should have included the value of the land and that the district court erred in refusing to grant injunctive relief and in refusing to allow the Tribe to amend its complaint to include a claim for water and fishing rights damages. The Ninth Circuit affirmed the denial of the defendant's motion for declaratory relief and denial of the Tribe's motion to amend, thereby reversing the damage award, prejudgment interest award, and the refusal of injunctive relief.

The regulations under the Federal Power Act (FPA) provide that licensees should pay tribes an annual amount for the use of tribal land and that the court or agency must determine the charge according to the facts of each individual case. The court found that the value of the land, though not a required measurement under the FPA, was the best measure of damages for the defendant's trespass. The court, therefore, reversed the damage award so that the lower court could recalculate the award to include the value of the land and redetermine whether federal prejudgment interest is appropriate.

The court also found that the FPA did not allow a licensee to condemn the Tribe's land without receiving authorization from the Federal Energy Regulatory Commission to use the land and, therefore, an injunction may be appropriate. However, the court indicated that the lower court, on remand, could consider denying the injunction based on arguments that an injunction would cause power shortages in the Pacific Northwest.

Regarding the Tribe's motion to amend, the court held that the Tribe's delay was extremely untimely and the risk of prejudice to the defendants was significant. The court affirmed the district court's denial of that motion. The Ninth Circuit also held that the district court had the discretion to deny the defendant's motion for declaratory relief, thereby affirming that denial.

7. Spokane Tribe v. Washington, 28 F.3d 991 (9th Cir. 1994).

The Spokane Tribe (the Tribe) pursued a Class III gaming compact pursuant to the federal Indian Gaming Regulatory Act (IGRA). The State of Washington rejected the Tribe's draft compact and insisted that the Tribe either submit to state-imposed limits on gaming or file a suit under IGRA. The Tribe brought suit to compel the state and its officers to negotiate in good faith a gaming compact under IGRA. The state argued immunity under the Eleventh Amendment. Despite conflicting opinions between the Eighth Circuit, which held that states are not immune, and the Eleventh Circuit, which held that states are immune, the Ninth Circuit followed the lead of the Eighth Circuit and held that states are not immune from suits brought under IGRA.

The Eleventh Amendment protects states from being sued in federal court unless the state consents to federal jurisdiction or Congress abrogated state immunity. The statute must clearly express an intent to abrogate. The court pointed out that every federal court agrees that the language in IGRA clearly shows that Congress intended to abrogate state immunity and that a state has the burden to prove that it negotiated the compact in good faith.

The issue instead turned on whether Congress had the power to abrogate a state's immunity in suits brought pursuant to IGRA. Even though the Supreme Court never addressed this specific issue, the Ninth Circuit noted the Supreme Court's opinion in Pennsylvania v. Union Gas Co.,(30) in which the Court held that Congress has the power to abrogate state immunity through the Commerce Clause. The Ninth Circuit decided that Congress's power to abrogate under the Commerce Clause also applies to the Indian Commerce Clause.

Furthermore, because Congress passed IGRA to give states some power in regulating tribal gaming, state immunity would prevent states from asserting their own interests. The State of Washington, therefore, was not immune from the Tribe's suit.

IV. Property Rights

A. Mining Rights on Public Lands

1. Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995).

The plaintiffs asserted rights to mine areas of Federal National Forest Lands. Although the relevant lands were at one time open to the public for mineral exploration and extraction, Congress subsequently closed the lands to mining under the Wilderness Act and the Wild and Scenic Rivers Act. Thus, only those plaintiffs establishing discovery of valuable mineral deposits prior to the closures possess a valid right to mine claims (a "valid claim"). The U.S. Forest Service (Forest Service) denied motorized access to one plaintiff pending final determination of claim validity by the Department of the Interior (DOI), and flatly denied motorized access to another plaintiff. The plaintiffs filed suit against the Forest Service, seeking declaratory and injunctive relief.

The plaintiffs argued that DOI had exclusive jurisdiction of access adjudication to mining claims located in National Forests and, thus, the Forest Service had no authority to refuse the plaintiffs' motorized access requests. The plaintiffs reasoned that means of access affect the commercial viability of mining claims. Because whether a claim is "valid" (a determination to be made by DOI) depends in part on commercial viability, anything materially affecting commercial viability should be adjudicated by DOI.

The Ninth Circuit disagreed and held that the Forest Service can regulate access to mining claims. With regard to the claims on "wilderness areas," the Ninth Circuit determined that 16 U.S.C. [sections] 1134(b) expressly grants this authority to the Forest Service. Although "non-wilderness" areas are not covered by [sections] 1134(b), the Ninth Circuit found that the Organic Administration Act of 1897 (Organic Act) empowers the Forest Service to regulate means of access to mining claims in the National Forests as well.(31) In addition, the court cited a substantial body of Ninth Circuit case law upholding Forest Service authority to regulate mining operations within the National Forests. The Ninth Circuit rejected the plaintiffs' contention that means of access goes to the validity of the claim and should be committed to DOI. Instead, the court found that the nature of the issue presented - the mode of access - and not the effect of the determination, determines the appropriate agency forum.

The plaintiffs also argued that the Forest Service's denial of motorized access results in a taking of private property for public use without just compensation in violation of the Takings Clause of the Fifth Amendment. However, the U.S. Supreme Court has previously held that a plaintiff cannot receive equitable relief to enjoin a taking when a postdeprivation suit for damages would be available.(32) Since the plaintiffs seek only injunctive and declaratory relief on their takings claim and damages would be available, the Ninth Circuit held the dismissal appropriate.

V. Litigation Issues

A. Civil Procedure

1. Exxon Shipping Co. v. United States Department of Interior, 34 F.3d 774 (9th Cir. 1994), supra part I.D.

2. Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 34 F.3d 753 (9th Cir.), modified, 42 F.3d 1306 (9th Cir. 1994), cert. denied, 115 S. Ct. 1401 (1995).

Property owners (Tahoe Sierra Preservation Council, Inc. or TSPC) sued the Tahoe Regional Planning Agency (TRPA), challenging prohibitions against development. The Ninth Circuit barred two of TSPC's claims under the statute of limitations.

A third claim rested on a 1987 plan that was markedly different from its 1984 predecessor. In 1991 and 1992, TSPC amended its 1984 complaint to include the 1987 plan. The court held that it would not relate the new claims back to the initial complaint, because the 1987 Plan was not the same transaction or occurrence as the previous plan. The court distinguished Lucas v. South Carolina Coastal Council(33) as addressing amended regulations, while the 1987 plan replaced previous regulations. Thus, the Ninth Circuit barred the third complaint as well.

TSPC brought its final claim under 42 U.S.C. [sections] 1983. The court held that the 60-day statute of limitations of the compact creating the TRPA did not apply to [sections] 1983 claims. Rather, a single state statute of limitations applies to all [sections] 1983 claims. Consequently, the Ninth Circuit did not bar TSPC's [sections] 1983 claim. Instead, the Ninth Circuit reversed the district court's dismissal of this issue and remanded for further proceedings.

B. Standing

1. Pacific Northwest Generating Cooperative v. Brown, 38 F3d 1058 (9th Cir. 1994), supra part II.D.

2. Alaska Center for the Environment v. Browner, 20 F3d 981 (9th Cir. 1994).

In a case of first impression for the Ninth Circuit, the court affirmed a district court's injuction requiring the EPA to set total maximum daily loads (TMDLs) under the Clean Water Act (CWA) for Alaskan waters. The Ninth Circuit rejected EPA's challenges to the plaintiffs' standing on all bodies of Alaskan water, asserting that "for CWA regulatory purposes, all waters within a sate are interrelated."

When neither the State of Alaska nor EPA established TMDLs required under the CWA, the Alaska Center for the Environment (ACE) and other environmental groups brought a citizens' suit asking EPA to establish TMDLs for Alaskan waters. The district court granted the requested injunction, and EPA appealed, challenging the plaintiffs standing and the remedy granted.

EPA claimed that ACE lacked standing, because ACE could not show that a favorable court decision would redress ACE'S injury. EPA argued that the likelihood of redressability was low given that an indispensable third party, namely the State of Alaska, was absent from the proceeding. The Ninth Circuit rejected EPA's argument because Congress and EPA determined that TMDLs were an effective tool for achieving water-quality based standards in waters impacted by nonpoint source pollution. Consequently, the State of Alaska's discretionary acts with respect to nonpoint source pollution do not make the state an indispensable party.

EPA also argued a lack of standing, because ACE failed to prove "injury in fact" for most of the state's specific water bodies. The Ninth Circuit found that it would be a heavy burden to require ACE to establish standing for each of Alaska's water bodies (3 million lakes, 170 million acres of wetlands, 365 thousand miles of rivers and streams, and 36 thousand coastal miles). The plaintiffs established standing for a representative number of waters throughout the state. The court found such standing sufficient, because ACE's injury was the result of EPA's failure to establish TMDLs for Alaska, and for the purposes of the CWA, "all waters within a state are interrelated."

The Ninth Circuit distinguished this case from other standing cases. The Court distinguished Conservation Law Foundation v. Reilly(34) by noting that Conservation Law Foundation would have required ordering hundreds of separate actions by hundreds of EPA regional offices, whereas the case at hand required one action by a single EPA office. Furthermore, ACE, unlike those plaintiffs in Conservation Law Foundation, demonstrated representation and injury throughout the entire region for which they sought relief. The court also distinguished Lujan v. National Wildlife Federation(35) and People for the Ethical Treatment of Animals v. Department of Health & Human Services36 by noting that the plaintiffs in these cases failed to sufficiently allege injury by the defendants' actions.

VI. Constitutional Challenges

1. Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994), supra part II.C.

2. Spokane Tribe v. Washington, 28 F.3d 991 (9th Cir. 1994), supra part III.

3. Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir. 1994).

The plaintiffs brought this suit in order to enjoin the construction of telescopes on Mount Graham in Arizona. The plaintiff challenged the constitutionality of the Arizona-Idaho Conservation Act (AICA) under the separation of powers doctrine. The plaintiffs also claimed that the U.S. Forest Service (Forest Service) did not fulfill its obligations under the National Historical Preservation Act (NHPA).

The Ninth Circuit held that AICA does not violate the separation of powers doctrine, because AICA modifies the underlying laws, such as the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The court also held that laches barred the plaintiffs' NHPA claim. The court affirmed the district court's decision to deny the plaintiffs' injunction and grant summary judgment in the defendant's favor.

The plaintiffs argued that AICA violated the separation of powers doctrine by infringing on the judicial branch by mandating, without changing the underlying laws, that a decision be made in a particular way. The court found that AICA suspended the requirements of the underlying laws with language stating that "compliance with ... new law constitute[s] compliance with ... old law." Because AICA changed the underlying laws with this language, AICA does not mandate the obtainment of specific results under the old law. AICA does not, therefore, usurp the judicial branch's powers.

The plaintiffs also claimed that AICA violated the separation of powers doctrine by infringing on the executive branch by "impermissibly truncating pre-existing delegations of power to the federal agencies under NEPA and ESA without altering the delegations themselves." Because the court held that AICA modified the underlying laws, the court found that AICA did not infringe on the Forest Service's power to decide if the construction met requirements of NEPA and the ESA. AICA instead substituted new requirements for the old requirements and, therefore, did not usurp the power of the executive branch.

Finally, the plaintiffs argued that the Forest Service did not fulfill its obligations under NHPA, because the telescope project threatened the plaintiffs' religious practices. NHPA required the Forest Service, prior to issuing a special use permit, to determine if cultural resources existed on Mount Graham. The Forest Service did conduct studies on the cultural resources on Mount Graham and did contact the plaintiffs for their input. However, the plaintiffs' delayed in raising their religious concerns. The plaintiffs filed their claim six years after the NHPA review began and two years after the Forest Service issued the special use permit. The court applied the laches standard of NEPA to NHPA because the two statutes are closely related, and the court measured laches from the beginning of the NHPA review rather than by the date when the Forest Service issued the special use permit. The court examined the lack of diligence by the plaintiffs and the prejudice to the defendants. The court said that the plaintiffs inexcusably delayed in providing their input on the mountain's religious significance. The court also found that an injunction would greatly prejudice the defendants, because over $400 million had already been spent on the project. Therefore, the court upheld a summary judgment ruling in the defendants' favor.

4. Pacific Northwest Venison Producers v. Smith, 20 F.3d 1008 (9th Cir.), cert. denied, 115 S. Ct. 297 (1994), supra part II.B. (1) 898 F.2d 687 (9th Cir.), cert. denied, 498 U.S. 998 (1990). (2) 752 F.2d 1444 (9th Cir.), modified, 778 F.2d 527 (9th Cir. 1985). (3) 972 F.2d 1527 (10th Cir. 1992). (4) 114 S. Ct. 1960 (1994) (5) United States v. Green, 962 F.2d 938, 941 (9th Cir. 1992) (quoting United States v. Guess, 629 F.2d 573, 576 (9th Cir. 1980)). (6) Smith v.Hughes Aircraft Co., 22 F.3d 1432 (9th Cir. 1994). (7) St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195 (1st Cir. 1994). (8) Air Prods. & Chems., Inc. v. Hartford Accident & Indem. Co., 25 F.3d 177 (3d Cir. 1994). (9) This case is included in the 1994 Ninth Circuit Review because it was originally decided in 1994 and reported at 37 F.3d 1414 (9th Cir. 1994). That opinion was withdrawn and superseded by the above referenced unpublished opinion. This Summary accurately reflects the content of the current opinion. (10) 844 F.2d 588, 597-98 (9th Cir. 1988). (11) 340 U.S. 462 (1951). (12) Housekeeping Act, 5 U.S.C. [sections] 301 (1994). (13) See, e.g., Smith v. C.R.C. Builders Co., 626 F. Supp. 12, 14 (D. Colo. 1983) (granting federal motion to quash subpoena and holding that "superior government official could withdraw from subordinates the power to release government documents"); Reynolds Metal Co. v. Crowther, 572 F. Supp. 288, 290-91 (D. Mass. 1982) (dismissing contempt proceedings against government employees for refusal to testify after recognizing authority of agency heads to restrict testimony of subordinates). (14) 852 F.2d 1106 (9th Cir. 1988). (15) 6 F.3d 648 (9th Cir. 1993). (16) 485 U.S. 176, 184, aff'd in part, rev'd in part, 486 U.S. 281 (1988). (17) 28 U.S.C. [section] 1581(i)(3) grants CIT exclusive jurisdiction to hear actions "that arise[ ] out of any law of the United States providing for ... embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety . . ." Court of International Trade, 28 U.S.C. [section] 1581(i)(3) (1988). (18) 957 F.2d 7( 1, 765 (10th Cir. 1992). (19) Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens actions are brought against federal government employees in their individual capacities to redress violations of citizens' constitutional rights. Id. at 395-96. (20) The court was renamed, effective October 29, 1992, the United States Court of Federal Claims. (21) Bush v. Lucas, 462 U.S. 367, 368 (1983). (22) 956 F.2d 1508, 1516 (9th Cir. 1992) (holding that to the extent Forest Plans predetermine the future, they represent a concrete injury and plaintiffs have standing to challenge them). (23) The Seventh Circuit recently agreed with the Ninth Circuit's position that citizens may challenge site-specific projects proposed in a Forest Plan. Sierra Club v. Marita, 46 F.3d 606, 613 n.5 (7th Cir. 1995). (24) 46 F.3d 1437 (9th Cir. 1993). (25) 848 F.2d 1441 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989). (26) 958 F.2d 290, 295 (9th Cir. 1992). (27) 774 F.2d 1335, 1360-61 n.14 (9th Cir. 1984). (28) 504 U.S. 555 (1992). (29) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 842-45 (1984). (30) 491 U.S. 1 (1989). (31) The Organic Act authorizes the Secretary of Agriculture to promulgate regulations to protect the national forest lands from destruction and degradation. 16 U.S.C. [subsections] 473-482, 551 (1988 & Supp. V 1993) (repealed in part 1976). It further specifies that persons entering the national forests to exploit mineral resources "must comply with the rules and regulations covering such national forests." Id. (32) Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-17 (1984). (33) 112 S. Ct. 2886, 2891 (1992). (34) 950 F.2d 38, 43 (1st Cir. 1991). (35) 497 U.S. 871 (1990). (36) 917 F.2d 15 (9th Cir. 1990).