1995 Ninth Circuit environmental review.

Editor Scott Kerin

Kathleen C. Becker National Environmental Policy Act, Endangered Species Act, Forests, Constitutional Challenges

David A. Christensen Clean Air Act, Water Quality, Constitutional Challenges

Karla A. Raetig Hazardous Waste, Hydroelectric Power

Holly J. Somers Hazardous Waste, National Environmental Policy Act, Endangered Species Act

Heidi Van Kirk Toxic Torts, Native American Issues

REVIEW EDITOR'S NOTE

This issue marks the sixth year of publication for the annual Ninth Circuit Environmental Review. The format of the Review follows those of previous years in presenting short summaries of every "environmental decision" handed down by the Ninth Circuit Court of Appeals in 1995, as well as individual chapters expanding upon some of the more interesting cases. The students selected for membership on the Review are chosen each year based on their writing abilities.

Because of both geography (Guam to the eastern border of Montana) and case load (the Ninth Circuit decides a substantially larger number of environmental cases than other United States Courts of Appeals), the range of environmental issues covered in the Review is expansive. This past year the Ninth Circuit grappled with the very definition of "public lands" and issues of scientific evidence on remand of the Daubert decision. The issues the students address in their individual chapters include the requirements for warrantless inspections under environmental statutes and whether parties who had interests adverse to the Endangered Species Act have standing to sue under the Act. Reviewing such a diverse and numerous group of cases was an arduous task at times, and I thank the staff of the Ninth Circuit Environmental Review, Environmental Law, as well as the faculty advisors involved for the time and effort they dedicated to this project. It is our sincere hope that the Review provides a useful research tool for those concerned with developments in environmental law.

Scott M. Kerin

Ninth Circuit Review Editor

CASE SUMMARIES

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

1. United States v. Trident Seafoods Corp., 60 F.8d 556 (9th Cir. 1995).

In May 1988, Trident Seafoods, a seafood processing corporation, purchased and began renovating an abandoned fish cannery in Anacortes, Washington. The renovation included asbestos removal by a subcontractor, which began on August 24, 19&8. On September 26, 1988, an asbestos inspector for the Northwest Air Pollution Control Authority, having learned that Trident had been disposing of asbestos, arrived to inspect the facility. Trident paid a $250 fine for failing to give advance notice of its intent to renovate and remove the asbestos, a violation of the Clean Air Act (CAA). The Environmental Protection Agency (EPA) was informed of the violation.

Three years later, in 1992, EPA charged Trident and its contractor and subcontractor with four work practice violations and one notice violation of the CAA. When Trident refused to pay the $346,000 civil fine, the United States filed suit. The four work practice charges went to trial and the jury found in favor of Trident. The district court entered summary judgment in favor of the United States on the charge of failing to provide notice. The district court viewed Trident's notice violation as a continuing violation extending from the date notice should have been given to the date asbestos removal began (forty-four days). The court imposed a civil fine of $64,750, reduced from a potential $1,100,000 by mitigating factors.

Trident did not challenge the assertion it violated the notice requirement of the CAA. Instead, it challenged the district court's interpretation of the penalty-assessment statute.(1) Section 113(b) states violations of the CAA are punishable by penalties of "not more than $25,000 per day of violation." Trident argued failure to give notice is a one-time violation occurring on only one day, so the fine should be limited to the statutory maximum of $25,000.

Recognizing the statute, the applicable regulation, and case law do not state whether failure to provide notice is a one-time or continuing violation, the Ninth Circuit looked to the clear language of the regulation. The regulation only required Trident to notify EPA before renovation began. Therefore, the court reasoned, it could be interpreted to indicate the violation occurred on one day-the day before Trident began renovation. The Ninth Circuit did not quarrel with the district court's policy analysis in support of advance notification; however, it stated EPA has an obligation to ensure the penalty was clearly expressed in the regulation. The burden is on the agency to clarify its regulations and the policies underlying a statute are not substitutes for clear language. Although deference is usually given to an agency's own interpretation of its regulations, the court held that in this case EPA's stance was not an official interpretation, but a position for litigation purposes.

Because the "continuous violation" penalty was not clearly applicable to Trident's actions, the Ninth Circuit determined Trident would be penalized only for a single violation. The case was reversed and remanded to the district court to impose a penalty not to exceed the statutory maximum of $25,000.

Judge Ferguson wrote the dissent. He contended the statute's plain meaning required Trident's violation to be treated as a continuing violation. Each day notice was not given, Trident disposed of asbestos improperly. Therefore, the harm was not limited to one day, resulting in a continuous violation.

B. Hazardous Waste

1. Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469 (9th Cir. 1995).

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

HDC claimed CERCLA mandated the implementation of a health surveillance program in the region surrounding Hanford. ATSDR moved for summary judgment, claiming the federal courts do not have jurisdiction over challenges to "removal actions" under CERCLA. The district court granted the motion. HDC appealed, claiming the health surveillance program was not a "removal action," its action was not a "challenge," and the health surveillance program was required at Hanford. Because CERCLA section 113(h)(2) protects only discretionary actions, HDC argued, it was inapplicable. In addition, HDC argued that its suit qualified for the citizen suit exception and that its due process rights had been violated.

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

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

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

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

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

2. Razore v. Tulalip Tribes of Washington, 66 F.8d 286 (9th Cir. 1995).

Plaintiffs brought a citizen suit alleging the Tulalip Tribes violated the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA). The district court dismissed the plaintiffs' claims. The Ninth Circuit affirmed and held that the suit was barred by Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 113(h)(3) because of the ongoing remedial investigation and feasibility study (RI/FS); the district court's denial of additional discovery was not an abuse of discretion; and the district court's denial of the Tribe's request for attorney's fees was also not an abuse of discretion.

A landfill, in operation from 1965 to 1979 on the Tulalip Indian Reservation, was contaminating the Snohomish River and the Puget Sound. In 1979, the Environmental Protection Agency (EPA) ordered the operators, the plaintiffs in Razore, to stop disposal at the landfill because of contamination. The Tribe entered into a consent decree with the United States and the operators to close the landfill. Pursuant to the consent decree, the Tribe placed a soil covering on the landfill. However, the soil covering did not stop the contamination. Despite additional efforts, the contamination continued and EPA contacted the Tribe about the possibility of proceeding under CERCLA. The Tribe then conducted an RI/FS.

The first issue was whether section 113(h)(4) applied to suits brought while an RI/FS was taking place. The definition of a removal action in 42 U.S.C. [sections] 9601(23) includes actions that "monitor, assess, and evaluate the release or threat of release of hazardous substances . . . ." The court held that an RI/FS was clearly covered under this definition. As a removal action, an RI/FS brings the suit under section 113(h) and in this case would bar pre-enforcement judicial review. The court also rejected the plaintiffs' assertion that a remedy could be fashioned that did not challenge the cleanup. Although the RI/FS may result in a no-further-action alternative, in which case a cleanup would never occur, section 113(h) is an unequivocal withdrawal of federal jurisdiction.

The plaintiffs' second argument involved the "savings" provision of CERCLA.(5) The "savings" provision states that CERCLA does not affect or modify obligations or liabilities under other federal and state laws. The plaintiffs argued that depriving them of the citizen suit provisions of RCRA and the CWA would extinguish their rights under those acts. However, the court noted, section 113(h) does not extinguish the plaintiffs' claims, it just delays them until the CERCLA removal or remedial action is completed.

After upholding the denial of additional discovery, the Ninth Circuit found that the district court did not abuse its discretion when it denied the Tribe's request for attorney's fees. The court followed the standard set by the U.S. Supreme Court for Title VII cases. The court found that the plaintiffs' claims were neither frivolous nor unreasonable.

3. State of Arizona v. Components, Inc., 66 F.13d 218 (9th Cir. 1995).

The State of Arizona entered into a settlement agreement with Nucor Corporations that resolved Nucor's liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for ground water contamination within the West Central Phoenix State Superfund Study Area. Components, Inc. (Components) challenged the settlement agreement, alleging that the district court did not have sufficient information regarding the extent of the contamination and the probable total cost of cleanup to approve the consent decree. Components asserted that because of this lack of information the district court did not have a reasonable basis to determine Nucor's share of liability.

The Ninth Circuit reviewed the district court's approval of the consent decree under an abuse of discretion standard. The court found that the district court did not abuse its discretion in holding that there was sufficient information on the contamination. The state had collected extensive information regarding the scope of the contamination and the manufacturing processes, chemical usage, and disposal practice of hundreds of facilities in the study area. The Ninth Circuit also found that the district court did not abuse its discretion by using the indexed sales method to estimate Nucor's liability because records regarding disposal methods and volumetric data of waste production were not available.

Components further argued that CERCLA section 122(6) requires a remedial investigation and feasibility study (RI/FS) before settlement is reached and that in this case an RI/FS was not conducted. The Ninth Circuit rejected this argument and held that section 122(e)(3)(A) did not apply to settlements reached by states and potentially responsible parties (PRPs). Instead, section 122(e)(3)(A) only applies to settlements between the United States and PRPs.

Although section 122(e)(3)(A) did not apply in this case, the court stated that even if it did, it would still not invalidate the settlement. The section is only applicable when the settlement is attempting to provide a nonbinding preliminary allocation of responsibility among PRPs. In addition, the section is only applicable to "actual remedial actions." In this case, the state was seeking to recover costs a!ready incurred from cleaning up the ground water contamination. The state was not seeking to conduct a remedial action.

Components challenged the settlement because it did not include any reopener provisions required by section 122(f)(6)(A). Reopener provisions allow the government to seek further damages from the settling party if previously unknown contamination is discovered. However, the court found that Components waived the issue by not sufficiently raising the issue in the district court. The Ninth Circuit went on to note that even if the issue had not been waived, section 122(f)(6)(A) is only applicable to settlements between the United States and PRPs, not settlements between states and PRPs.

4. Beck v. Atlantic Richfield Co., 62 F.3d 1240 (9th Cir. 1995), cert. denied, 116 S. Ct. 1568 (1996).

The Ninth Circuit reversed the district court's dismissal without prejudice of claims filed under Montana law against the Atlantic Richfield Company (ARCO) by a group of water users along the Clark Fork River in Montana. The court ordered the district court to remand the case to state court.

The water users' claims stemmed from a Comprehensive Environmental Response, Compensation: and Liability Act (CERCLA) cleanup ordered by the Environmental Protection Agency (EPA). For years, ARCO discharged mining wastes into the Clark Fork River. To remedy the pollution, EPA ordered ARCO to divert water from the river into tailing ponds. Cleaner water would then flow back into the river. The order mandated that in undertaking the cleanup ARCO was not to cause any injury to vested water rights. This order meant that to implement the cleanup, ARCO might have to pay for any water used.

The plaintiffs, water users with "senior" water rights, claimed that the diversion was decreasing the amount of water available to downstream users, and they filed suit in state court. They were seeking compensatory damages, lost profits, and property devaluation. One plaintiff, West Side Ditch, also brought a claim for injunctive relief. ARCO removed the case to federal court. The district court dismissed the case but offered to move it to the Court of Federal Claims because the court held the plaintiffs were alleging a takings claim.

The Ninth Circuit found that the district court erred in finding that the plaintiffs alleged a takings claim. Even though the facts may give rise to a takings claim, the plaintiffs did not elect to use this remedy. Instead, their claims were brought under state law.

Next, the court examined the district court's conclusion that the plaintiffs' claims were a "challenge" to the CERCLA cleanup and thus were barred by 42 U.S.C. [sections] 9613(h), CERCLA's timing of review provision. The claims would be a challenge if they interfered with the implementation of the CERCLA cleanup. The court found that the remedy available to the plaintiffs if they won, financial compensation, would not involve changing the EPA order, and thus did not challenge the order. However, the court held that West Side Ditch's injunctive relief claim did constitute a challenge to the cleanup because it would enjoin the diversions ordered by EPA.

Nonetheless, the court concluded that the district court lacked jurisdiction because the plaintiffs asserted state law claims and that federal courts did not have jurisdiction over the claim for inJunctive relief because it constituted a challenge to the CERCLA cleanup. Thus, there was no federal jurisdiction, and the appropriate court to hear this case was a state court. 5. Washington State Department of Transportation v. Washington Natural Gas Co., 59 F.8d 798 (9th Cir.), superseding 51 F.3d 1489 (9th Cir. 1995).

Washington State Department of Transportation (WSDOT) brought suit against Washington Natural Gas Company (WNG) and several other defendants to recover response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The district court denied WSDOT its costs because it had failed to comply with the National Contingency Plan (NCP) as required by CERCLA.

While beginning construction of a new interstate highway system, WSDOT discovered a tar-like substance and reported it to the Washington State Department of Ecology (WSDOE). Soil samples obtained in an atypical way were tested and found to be "extremely hazardous waste." WSDOE advised WSDOT that it might be able to obtain National Priority Listing (NPL) in order to get funding from the Superfund. WSDOT did not want to pursue this due to the extra time and effort entailed. WSDOT hired its own environmental consultant to investigate. However, during the investigation the consultant made several erroneous assumptions about whether a coal gasification plant and the tar by-product it produced had been removed. The consultant also failed to collect new samples and relied only on the original samples for its conclusions about the nature and extent of the contamination.

The consultant and WSDOT organized an interagency team to formulate an action plan. The team concluded that the only option was to move the tar to a hazardous waste facility in Oregon and to encapsulate the less hazardous oily silt and sand in vaults on the site. By the time the cleanup was completed, the original estimates of the extent and nature of the contamination were found to be grossly underestimated.

Three issues were addressed by the court: 1) whether WSDOT is the "State" for purposes of section 107(a)(4)(A) of CERCLA;(7) 2) whether WSDOT's actions were "not inconsistent" with the NCP; and 3) whether the defendants were entitled to attorney's fees and deposition costs.

When a defendant is sued by the United States, a state, or an Indian tribe, section 107 places the burden of proving that the cleanup was consistent with the NCP on the defendant; however, when a defendant is sued by any "other person" seeking response costs, the burden is on that other party. Here, the burden of proof would be on WSDOT if the court determined that it was not the "State" under section 107, but on the defendants if WSDOT is the "State." The defendants conceded that "State" includes state administrative agencies, but contended that the term only contemplates agencies authorized to implement removal or remedial action; for example, those agencies who act with EPA's authorization. The district court agreed with the defendants. The Ninth Circuit, however, held that the wording of section 107 should not be limited in this manner because the defendant's reading would create EPA authorization requirements for state cleanups where none otherwise exist. Therefore, the Ninth Circuit concluded that WSDOT qualified as the "State" for purposes of section 107, and thus the defendants had the burden of showing WSDOT's inconsistency with the NCP.

Nevertheless, the court held that the district court's ruling was harmless error because, even in light of the burden shifting, WSDOT clearly acted inconsistently with the NCP. The court noted that the defendants must show that WSDOT's actions were inconsistent with the NCP based on the deferential abuse-of-discretion standard.

In comparing WSDOT's actions with the NCP, the court's initial task was to decide which NCP to use--the 1982 NCP that was in effect when WSDOT initiated its response, or the 1985 NCP that was in effect when ninety-five percent of the costs were incurred. The Ninth Circuit held that although the district court erroneously applied the 1985 NCP to the entire amount rather than the ninety-five percent applicable to it, the decision was harmless because WSDOT's actions were inconsistent with both the 1982 and the 1985 NCP.

The Ninth Circuit held that WSDOT failed to follow the requirements of the NCP, noting its failure to accurately assess the nature and extent of the contamination, to adequately consider alternatives, and to provide public review and comment. WSDOT's actions were therefore deemed to be arbitrary and capricious, and thus WSDOT was not entitled to recover its response costs.

The third issue on appeal was whether the defendants were entitled to attorney's fees under Federal Rules of Civil Procedure (FRCP) 37(c), which allows for an award of attorney's fees for failure to admit, and costs for depositions under FRCP 54(d), which allows for award of certain costs, including deposition costs, to the prevailing party. The court held that the district court did not abuse its discretion in denying the defendants those costs because "WSDOT could have reasonably believed that it had complied with the applicable provisions of the NCP."

6. Durfey v. E.I. DuPont De Nemours Co., 59 F.8d 121 (9th Cir. 1995).

In 1990, five class action suits were filed against current and former operating contractors of Hanford Nuclear Reservation. Among the allegations were claims of personal injury, property damage, business losses, and the tort of medical monitoring. The U.S. District Court for the Eastern District of Washington consolidated the claims into one, In re Hanford.(8) The district court dismissed the medical monitoring claims for lack of subject matter jurisdiction pursuant to section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(9) In 1993, Pamela Durfey, Paulene Echo Hawk, and Dorothy George filed this class action suit alleging the common law tort of medical monitoring. The district court consolidated the plaintiffs' action with the In re Hanford litigation and removed the action to the federal district court. In accord with its earlier decision, the district court dismissed the plaintiffs' claim for lack of subject matter jurisdiction under section 113(h).

CERCLA bars judicial review of "challenges" to federal "removal" or "remedial" actions. Therefore, the plaintiffs' action would be barred if it were found to be a "response" cost under CERCLA section 107(a)(4)(B).(10) The district court ruled the plaintiffs' claims were "challenges" to the activities of the Agency for Toxic Substances and Disease Registry (ATSDR) at Hanford because ATSDR's medical surveillance will provide the medical monitoring the plaintiffs seek. Therefore, the court ruled their complaint could not be heard until ATSDR completed its work. However, since the district court's original ruling in 1991, the Ninth Circuit has ruled medical monitoring costs are not "response" costs under CERCLA.

In Price v. United States Navy,(11) relying on the Tenth Circuit's analysis in Daigle v. Shell Oil Co.(12) and on CERCLA's legislative history, the Ninth Circuit determined "response" costs refer to activities designed to prevent contact between the hazardous substances and the public. This is not the purpose of medical monitoring. In addition, ATSDR activities are not included in "response" costs. Because medical monitoring is not a "response" cost under CERCLA, the district court has subject matter jurisdiction. The Ninth Circuit reversed and remanded.

7. Systech Environmental Corp. v. EPA, 55 F.3d 1466 (9th Cir. 1995), cert. denied, 116 S. Ct. 910 (1996).

General Portland Cement, Inc. leased land from Tejon Ranchcorp to conduct a cement-making business. In 1982, Portland Cement began burning certain types of industrial wastes in its kiln. Systech Environmental Corporation collected waste from outside generators for Portland Cement to use in this process. Portland Cement was purchased by National Cement Company of California in 1987 and National assumed Portland Cement's long-term lease.

The Boiler and Industrial Furnace Rule,(13) promulgated by the Environmental Protection Agency (EPA) took effect in 1991. Because of National's program of burning industrial waste, it came under the requirement to obtain a hazardous waste management permit under the Resource Conservation and Recovery Act (RCRA).(14) National prepared and submitted an application for the permit and was allowed to continue the program on an interim basis until EPA reached a final decision on the permit.

Under 40 C.F.R. [sections] 270.11(d), the applicant is required to certify that the application was prepared under the applicant's supervision or direction and that the information contained in the application is true. The applicant must use the precise language in the regulation. National submitted its application with the proper language. However, EPA also required Tejon to sign and certify the application because EPA considered Tejon to be the owner of the land. EPA gave National thirty days to receive Tejon's certification, eventually granting National three extensions. National was not successful in obtaining Tejon's certification. A Notice of Intent to Deny National's application was issued in October 1993. Both Tejon and National submitted comments.

National then submitted an alternative certification from Tejon. The certification did not use the language in section 270.11(d) and did not certify as to the truth of the information in the application. However, Tejon used language originally proposed by EPA and acknowledged their liability as a land owner under RCRA. EPA found National's application incomplete on March 31, 1994, even though Tejon had signed the application and submitted the alternative certification. National appealed to the Environmental Appeals Board and the Board found EPA had not clearly erred in finding the application incomplete. EPA's final decision denying the permit was issued on July 28, 1994. The Appeals Board denied National's Motion for Reconsideration. National then sent a letter to EPA with a new certification from Tejon which tracked the language in section 270.11(d), but also contained a disclaimer. EPA found the disclaimer would have circumvented the intent of section 270.11(d). After this final denial, National filed suit.

National argued that Tejon was not an owner under RCRA and should not be required to sign or certify the permit application. However, the EPA regulation defining "owner" covers both the owner of the facility and the owner of the contiguous land on which the facility is located. In addition, the Federal Register contains language that makes clear that EPA intended to cover absentee landowners. The court found that Tejon is an owner under EPA regulations.

Tejon, as an owner, is required to submit an application pursuant to RCRA and EPA regulations implementing the permit program. RCRA requires owners and operators of hazardous waste management facilities to obtain permits. According to the regulations issued by EPA, any person required to have a permit must submit an application. The application must include the certification. Thus, Tejon was required to submit an application and certification. The court found that EPA's interpretation of these regulations was reasonable. Therefore, when EPA required Tejon to submit an application and obtain a permit, its action was not arbitrary and capricious.

National also argued that even if Tejon was an owner, EPA erred when it required Tejon to track the exact language in section 270.11(d). In deciding this issue, the court looked at the intent of EPA when it adopted this regulation. EPA wanted to effectuate the intent of Congress in requiring the operator of the hazardous waste facility to notify the owner regarding the nature and extent of the operator's activity. EPA also wanted to provide notice to the owner that EPA considered the owner jointly and severally responsible for compliance at the facility. The court found these objectives were legitimate but that requiring an absentee landowner to use the exact language of the section did not serve these objectives. In addition, the court found that requiring Tejon to use the certification in section 270.11(d) would have required Tejon to submit a false statement. The court noted that EPA was aware of the problems faced by absentee landlords because of the certification language. In fact, EPA had proposed an alternative regulation that could be used when the owner of the facility was not the operator. This regulation was never finalized.

The court held invalid EPA's decision to require that the owner of a facility who was not also the operator of the facility submit a certification stating the application was prepared under the owner's direction and supervision. Instead, the court held that Tejon had satisfied the requirements of section 270.11(d) through its alternate certification and its hiring of experts to evaluate National's permit application. Tejon had demonstrated they understood their liability and the nature and extent of National's activity at the facility. The court remanded the case and required that National's application be evaluated on its merits.

8. United States v. Montrose Chemical Corp., 50 F.3d 741 (9th Cir. 1995).

The Ninth Circuit vacated and remanded the district court's approval of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consent decree, finding that the district court lacked any information from which to determine that the settlement was fair and reasonable.

The government brought suit against three groups of corporate defendants for DDT and PCB contamination, as well as against a publicly owned sewage system for not removing all the DDT and PCBs from its discharged wastewater. The district court appointed a retired judge to serve as Special Master to supervise pre-trial proceedings, including settlement negotiations. The Special Master coordinated settlements with both the public sewage system, to which 150 local government entities had been joined, and one of the three groups of the corporate defendants. Consent decrees were approved by the district court. The settling corporate defendant's decree was not challenged on appeal.

Two remaining corporate defendants challenged the government settlement, claiming that the district court did not have sufficient information with which to deem the settlement reasonable and fair as required by CERCLA. In fact, the defendants argued, the district court did not have any estimates of potential damages. The Special Master's report simply stated that the consent decree was reasonable in its relationship to the "estimates of restoration and response costs," though no damage estimates were provided nor requested by the district court.

The government argued that the district court was entitled to rely on the Special Master's recommendation and that the Special Master essentially vouched for the settlement's fairness. After noting that the district court's decision can only be reversed for an abuse of discretion and recognizing that CERCLA's primary goal is to encourage early settlements, the Ninth Circuit nevertheless vacated the approval of the decree. They reasoned that "fair" and "reasonable" are comparative terms and that in order for the district court to fulfill its obligation to scrutinize the settlement, it must have a benchmark with which to compare. Without at least an estimate of the total damage, it could not have determined the substantive fairness of the settlement. The case was remanded to the district court for that determination.

9. KFC Western v. Meghrig, 49 F.8d 518 (9th Cir. 1995), rev'd, 116 S. Ct. 1251 (1996).

In this case the Ninth Circuit was called upon to address the scope and remedy of the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), section 7002.(15) In a question of first impression, the Ninth Circuit allowed monetary recovery for clean-up costs under RCRA's citizen suit provision for a hazard that had already been cleaned up when the plaintiff filed suit.

KFC purchased petroleum-contaminated property from the Meghrigs in 1975. While improving the property in 1988, KFC discovered the soil contamination and the City of Los Angeles ordered KFC to halt construction pending analysis of the soil. Tests confirmed the soil's petroleum contamination and the Department of Health and Services ordered KFC to clean up the property. The cleanup was completed in early 1989 and KFC requested reimbursement from the Meghrigs in mid-1990, which the Meghrigs refused. KFC filed suit under section 7002 in 1992.

The district court granted the Meghrigs' motion to dismiss the complaint because section 7002 only authorizes injunctive (that is, nonmonetary) relief and only when there is imminent and substantial endangerment to the public at the time the suit is filed. The Ninth Circuit reversed, relying largely on the analysis of an Eighth Circuit opinion, United States v. Aceto Agricultural Chemicals Corp.,(16) which held that the similarly worded government suit provision applied to wholly past violations that had been remedied by EPA when the suit was filed. The Ninth Circuit's opinion created a split in the circuits and the U.S. Supreme Court granted the Meghrigs' petition for certiorari.

On appeal to the Ninth Circuit, the Meghrigs argued RCRA only provides a cause of action when there is an imminent and substantial endangerment present at the time the plaintiff files the complaint, rather than the time of the cleanup. The Meghrigs supported this contention with RCRA's legislative history and a general argument that Congress intended to create a citizen suit cause of action only when the risk of harm is present. The Meghrigs cited Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,(17) a Clean Water Act case, for the holding that citizen suit provisions require defendants be in violation at the time the suit is filed.

In rejecting these arguments, the Ninth Circuit chose to follow the Eighth Circuit's interpretation of the similarly worded government suit provision of RCRA. The Eighth Circuit held that the imminent endangerment requirement limited "the reach of RCRA to sites where the potential for harm is great but not . . . the time for filing an action." The Ninth Circuit concluded, from the wording of the provisions and legislative history, that Congress intended citizens and the government to have the same standards of liability under RCRA. Therefore, according to the court, the citizen suit provision should be interpreted to allow suits for sites that endangered the public or environment in the past or present.

The Meghrigs' second argument was that RCRA only entitles citizens to an injunction or other non-monetary relief. The court responded that the statute's authorization for the courts to take "such other action as may be necessary"(18) provides for reimbursement for cleanup costs. The Ninth Circuit also rejected the Meghrigs' argument that the lack of a limitations period evidences the unavailability of reimbursement actions. The court reasoned that it could apply equitable defenses such as [aches to lessen any inequity due to the lack of a limitations period.

In asserting its reading of the citizen suit provision, the Ninth Circuit stressed the consideration of public policy: "Prompt preventive action [is] the most important consideration."(19) Thus, the court reasoned, RCRA should allow a plaintiff to clean up the contamination, and also subsequently file suit for reimbursement.

The U.S. Supreme Court reversed the judgment of the Ninth Circuit.

10. McClellan Ecological Seepage Situation v. Perry, 47F.8d 825 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995).

A citizen group brought suit under the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and California state environmental statutes, challenging a cleanup at the McClellan Air Force Base under the Comprehensive Environmental Response, Compensation, and Environmental Act (CERCLA). The Ninth Circuit held that section 113(h) of CERCLA(20) precluded any contemporaneous challenges to CERCLA cleanups and that section 113(h) applied to suits brought under citizen suit provisions. The court then differentiated the citizens' claims regarding the inactive waste sites, which were not covered under the cleanup plan, from the claims regarding the active waste sites, which were covered under the plan. The former were not challenges and thus were not precluded under section 113(h). The case was remanded to the district court for a determination of which claims survived.

Beginning in the 1930s, the McClellan Air Force Base was used as an aircraft depot and maintenance center. Hazardous and toxic substances used in the operations eventually contaminated the groundwater below the base. In 1979, the Air Force began a cleanup of the base with a groundwater monitoring program. The cleanup continued under CERCLA after it was passed in 1980. Currently, the Air Force, the Environmental Protection Agency, and the State of California are conducting the cleanup pursuant to an Interagency Agreement. The Management Action Plan in the agreement incorporates all applicable state and federal environmental laws. Part of the cleanup at the base involves a groundwater extraction system. Contaminants from the inactive waste sites are allowed to leach into the groundwater. The groundwater is then extracted and treated.

McClellan Ecological Seepage Situation (MESS), a citizens' group, filed suit seeking declaratory relief, civil penalties, and an injunction. The district court denied MESS's claim on the merits. MESS appealed.

On appeal, the Secretary of Defense argued that federal courts did not have jurisdiction of MESS's claims pursuant to section 113(h) of CERCLA. Section 113(h) of CERCLA denies federal courts jurisdiction of contemporaneous challenges to CERCLA removal or remedial actions. However, the section contains certain exceptions, including section 113(h)(4), which governs citizen suits.

MESS asserted that section 113(h) was only a bar to federal jurisdiction for suits brought under CERCLA provisions. The Ninth Circuit had not previously held whether section 113(h) applied to other environmental laws. The court held that section 113(h) was a "clear and unequivocal" withdrawal of federal jurisdiction for any challenge to a cleanup selected under CERCLA section 104.(21) MESS countered with legislative history to argue that Congress did not intend section 113(h) to apply to other environmental laws. However, the court found that the legislative history ambiguous and not sufficient to overcome the clear statutory language.

MESS argued that even if section 113(h) applied to other environmental laws, the section only applied to suits brought by potentially responsible parties. MESS was concerned that if section 113(h) precluded citizen suits relating to CERCLA cleanups, waste and disposal operators would avoid RCRA and CWA liability by using CERCLA as a shield. The court did not find this argument persuasive. The court reasoned if the section did not apply to citizen suits there would not be a need for an exception specifically covering citizen suits. While the court agreed about the general potential for operators to avoid liability and cause environmental degradation, in this case the Management Action Plan incorporated the applicable environmental laws. Finally, the court stressed that section 113(h) ensures that CERCLA cleanups are not prolonged by protracted court battles.

The court remanded the case to the district court to determine which of MESS's claims were not challenges and would survive.

C. National Environmental Policy Act

1. Environmental Coalition of Ojai v. Brown, 72 F.8d 1411 (9th Cir. 1995), cert. denied, 116 S. Ct. 2500 (1996).

As a part of a nationwide weather forecasting modernization project, in 1993 the Government began building a Next Generation Weather Radar (NEXRAD) on Sulpher Mountain in Ojai, California. Shortly thereafter, the Environmental Coalition (ECO) and others filed suit seeking a declaration that the U.S. Government had violated the National Environmental Policy Act (NEPA) and an injunction halting construction and operation of the system until the government complied with NEPA. When the district court granted summary judgment in favor of the government, ECO appealed. The Ninth Circuit affirmed the decision of the district court.

Prior to the beginning of the Ojai installation, the U.S. Government had issued several documents in an effort to comply with NEPA. At a national level, in 1984 the U.S. Government issued a programmatic environmental impact statement (PEIS), and it followed up with a draft and final supplemental environmental assessment (SEA) in 1993. Concluding that the project would have no significant adverse impacts on human health, it issued a finding of no significant impact (FONSI) in 1993. At the local level, in 1986 the government issued a preliminary site survey (PSS) for Sulpher Mountain, which included an initial environmental assessment (EA). In 1987 it produced an in-depth site survey (ISS) further assessing environmental impact. In 1989, the government issued a FONSI for the Sulpher Mountain project based on the 1984 PEIS, the 1986 PSS, and the 1987 ISS.

First, ECO argued that the government had violated NEPA by failing to give the local residents of Ojai adequate notice of the 1984 PEIS, the 1993 SEA, the 1989 FONSI for Sulpher Mountain, and the 1993 FONSI for the entire NEXRAD project. The Ninth Circuit held that the government had met the requirements for notice contained in 40 C.F.R. [sections] 1506.6. Noting that the regulation had different requirements for matters of national concern and local concern, the Ninth Circuit held the Government had fulfilled the national notice requirement by publishing notice of the PEIS, the SEA, and the 1993 FONSI in the Federal Register, and had fulfilled the local notice requirement by filing notice of the 1989 FONSI with state and local clearinghouses. The court declined to impose additional requirements above those found in the governing regulation.

Next, ECO contended that the government had failed to consider the impact of the NEXRAD project on the local environment, and that the decision not to prepare a site-specific EIS was arbitrary and capricious. After reviewing proof that the government had considered the impact of the project on Sulpher Mountain's flora and fauna, its possible historic, cultural, and archaeological sites, and the possible negative visual impact on the area of the project, the Ninth Circuit found ECO's claims to be without merit. The court held that the government acted reasonably when it decided not to issue a site-specific EIS based on the conclusion that the installation would have no significant local environmental impact; therefore it was not an arbitrary or capricious decision.

Finally, ECO argued that the government acted arbitrarily and capriciously in issuing a FONSI instead of preparing a SKIS after new research concerning the negative biological effects of radio frequency radiation became known. The Ninth Circuit upheld the government's decision not to prepare a SKIS because it found that the government had conducted a reasoned evaluation of the relevant information in a SEA and had reached the conclusion, based on careful scientific analysis, that its initial conclusion remained valid. Thus, the government's decision was not arbitrary or capricious.

2. Alaska Wilderness Recreation & Tourism Association v. Morrison, 67 F.3d 723 (9th Cir. 1995), infra part II.C.

3. Public Service Co. of Colorado v. Batt, 67 F.8d 284 (9th Cir. 1995).

The Ninth Circuit held that the district court's second order modifying an original injunction did not change the provisions of the injunction such that the Ninth Circuit had jurisdiction over an appeal pursuant to 28 U. S. C. [sections] 1 292 (a) ( 1) .

In June 1993, the district court granted the State of Idaho an injunction that enjoined the Department of Energy (DOE) from transporting, receiving, processing, or storing spent nuclear fuel in Idaho until a comprehensive environmental impact statement (EIS) was completed and reviewed, and any challenges to the EIS resolved. The injunction could be dissolved upon showing good cause. The district court modified the injunction in December 1993 to allow certain permitted emergency shipments. The December 1993 order provided that the injunction remain in full force and effect unless and until DOE issued a record of decision based on the EIS required by the June 1993 order.

DOE argued that the December 1993 order modified the June injunction so that DOE's June 1995 Record of Decision terminated the injunction. Idaho, however, contended that DOE failed to assess the environmental impacts of its actions in good faith, and that the injunction should not be dissolved. In May 1995, the district court granted Idaho's motion to reopen the proceedings because it found that the June 1993 injunction remained in effect until the EIS was completed, reviewed, and had all challenges against it resolved.

The Ninth Circuit dismissed DOE's appeal and held that DOE's interpretation would emasculate the injunction by allowing DOE to publish an EIS, however flawed, followed by a record of decision that would result in the dissolution of the injunction. Further, the court concluded that the December 1993 modification did not modify the provision for dissolution of the injunction upon a showing of good cause. Accordingly, the injunction was to remain in effect until the district court resolved Idaho's challenge to the EIS and dissolved the injunction upon a showing of good cause.

Because the court found that the June 1993 injunction remained in force, and was not modified by the May 1995 order, it concluded that it lacked jurisdiction to review the May 1995 order pursuant to 28 U.S.C. [sections] 1292(a)(1). Judge Arthur Alarcon dissented, arguing that the December 1993 order changed the event that would terminate the life of the injunction and that the May 1995 order extended the injunction that was due to expire upon the termination event: DOE's issuance of its record of decision. As a modification of an district court order, Alarcon concluded DOE had interlocutory review of the May 1995 order pursuant to the express language of 28 U.S.C. [sections] 1292(a)(1).

4. Sierra Club v. Babbitt, 65 F.8d 1502 (9th Cir. 1995), infra part II.A.

5. California Trout v. Schaefer, 58 F.8d 469 (9th Cir. 1995).

California Trout (CalTrout), an environmental group, brought suit challenging the decision of the U.S. Army Corps of Engineers (Corps) to grant a Clean Water Act (CWA) section 404 permit sought by the Stockton East Water District (SEWD) to discharge fill material into 4.18 acres of federally controlled wetland as a result of building a diversion facility at Rock Creek. This activity was a small part of a larger privately funded forty-one-mile-long project to divert water from the Stanislaus River in the Central Valley of California. Since the Corps had determined that its jurisdiction did not extend to the rest of the project, it looked only at the environmental impacts of the fill project, and having determined that the environmental impacts were not significant, decided that an environmental impact statement (EIS) was not required. CalTrout argued that the scope of review should have included the entire project. When the district court granted summary judgment in favor of the Corps and SEWD, Calbout appealed.

On appeal, CalTrout contended that the Corps violated the National Environmental Policy Act (NEPA) and the CWA by limiting the scope of its permit review only to the discharge project, instead of considering the entire project's environmental effects on fisheries downstream in the Stanislaus River. CalTrout reasoned that because the nonfederal portions of the project were dependent upon the completion of the Rock Creek facility, the entire project constituted a single federal action, and thus the scope of review should have covered the entire project.

The court of appeals held that arbitrary and capricious was the appropriate standard in reviewing the Corps's decision to limit its scope of review to the fill project and not issue an EIS. The court would only overturn the decision of the Corps if the Corps had committed a "clear error of judgment."

First, the court considered whether the Corps had violated NEPA by not extending its scope of review to the entire project. Adopting the reasoning of a case with a similar factual setting,(22) the court held that Corps had properly limited its scope of review to the fill project because another federal agency, the U.S. Bureau of Reclamation (BOR), had the contractual right and statutory obligation to curtail SEWD's contractual allocations of water as necessary to protect the needs of the fisheries. BOR controls New Melones Reservoir, which is the source of the water to be diverted. The Corps, on the other hand, had no jurisdiction over how much water would be diverted for the use of SEWD. Moreover, BOR had already fulfilled NEPA's mandate by preparing an EIS "to the fullest extent required by NEPA." Since BOR had already completed several studies regarding the SEWD project and its effect on the fisheries downstream, the court reasoned it would be nonsensical to require the Corps to duplicate these efforts.

Next, the court considered whether the Corps had, as charged by CalTrout, violated the CWA by failing to consider the views of the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and state fish and game officials. The court found that the Corps considered, as required, these agencies' initial concerns, addressed them, and explained why it found them unpersuasive. Also, the court found that CalTrout had exaggerated the level of interagency disagreement; the U.S. Fish and Wildlife Service eventually agreed that the Corps should limit its review to the effects of the fill, and neither the Environmental Protection Agency nor the National Marine Fisheries Service administratively challenged the Corps's scope of review.

The court held that CalTrout had failed to show that the Corps's action in issuing the permit to SEWD under the CWA was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Therefore, the district court's granting of summary judgment to the Corps and SEWD was affirmed.

6. Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 56 F.3d 1060 (9th Cir. 1995), infra part II.D.

7. Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir. 1995).

A coalition of environmental groups brought one of a series of challenges to the Mount Graham International Observatory Project, seeking to protect an endangered subspecies of red squirrel. The coalition challenged an approval by the U.S. Forest Service and the U.S. Fish and Wildlife Service (FWS) of a construction site for a large binocular telescope as failing to comply with both the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).

On cross-motions for summary judgment, the district court held that the federal defendants violated the ESA "by failing to pursue formal consultation before approving the relocation" of the telescope, and NEPA "by failing to prepare an Environmental Impact Statement . . . before approving the relocation" of the telescope. The federal defendants were enjoined from construction until they complied with both the ESA and NEPA. The federal defendants and the University of Arizona, intervening as the entity proposing to build the telescope, appealed. The Ninth Circuit affirmed.

In 1984, the University submitted a proposal to the Forest Service for several telescopes on Mount Graham in the Coronado National Forest in southeastern Arizona. The Forest Service began an environmental impact statement (EIS) in compliance with NEPA. Recognizing the possible impact on the red squirrel, it also began consultation with FWS in compliance with the ESA. FWS proposed "reasonable and prudent alternatives" (RPA) to minimize the effects on the squirrel. After a third RPA was completed, but before the Forest Service selected one of the three alternatives, Congress passed the Arizona-Idaho Conservation Act (AICA). The AICA provided for the immediate construction of three telescopes under RPA 3, stating that both the ESA and NEPA shall be deemed "satisfied."

After two telescopes were built under RPA 3 and the AICA, the University requested that the third be built in a different location than RPA 3 contemplated, in part because new squirrel middens were located at the RPA 3 location. FWS rejected this site, indicating that it believed Congress did not contemplate a major change in site. In 1993, without a formal consultation under the ESA nor a supplemental environmental analysis under NEPA, the Forest Service and FWS finally approved another location, deeming it to be "the least damaging of the four alternatives to the red squirrels."

After quoting the stated purposes of both the ESA and NEPA, the Ninth Circuit held that those statutes "must be adhered to unless Congress makes an exception." Here Congress did so, but only so far as the terms and conditions listed in RPA 3. The federal defendants argued that AICA's exemption should not be so strictly construed. However, the court quoted A.H. Phillips, Inc. v. Walling,(23) which held that any exemption from remedial legislation (such as the ESA and NEPA) must be narrowly construed. The federal defendants failed to carry their burden in showing that the new site fit within the parameters of AICA's exemption. Therefore, the Forest Service exceeded its authority in approving a site other than that indicated on RPA 3 without complying with the ESA and NEPA. The Ninth Circuit affirmed the district court's injunction against the federal defendants from construction of the third telescope.

8. Oregon Natural Resources Council v. Harrell, 52 F.S'd 1499 (9th Cir. 1995).

In 1962 Congress authorized the U.S. Army Corps of Engineers (Corps) to construct a series of three dams in the Rogue River Basin of Oregon. The last in the series of dams, the Elk Creek Dam, was about one-third completed when litigation halted construction. Elk Creek is a tributary of the Rogue River, located about fifty-five miles upstream from a part of the river Congress designated as a "Wild and Scenic River" under the Wild and Scenic Rivers Act (WSRA).(24) Elk Creek supports wild salmon and steelhead trout that migrate through this designated portion of the Rogue.

The Oregon Natural Resources Council (ONRC), an environmental group, initially brought suit in 1985 challenging the Corps's compliance with the National Environmental Policy Act (NEPA). Continued litigation resulted in a series of cases from "Marsh I" through "Marsh VII," the last of which is the companion case to this one.(25)

The principle issue raised by ONRC's appeal was whether the Corps, under section 7(a) of the WSRA, should have secured the consent of the Secretaries of Interior and Agriculture, who administer the Wild and Scenic portion of the Rogue River potentially affected by the dam, before issuing the Record of Decision (ROD) or requesting congressional appropriations for continuing construction. ONRC argued that the Corps violated section 7(a) of the WSRA by "authorizing" the construction of the Elk Creek dam--by issuing a ROD--prior to determining the impact of the construction on the values of the Wild and Scenic River, and without the consent of the secretaries.

The Ninth Circuit held that section 7(a) only required prior consent from the secretaries when a federal agency was "giving assistance to others" to enable them to take action affecting a Wild and Scenic River. However, agencies carrying out actions already directed by Congress need only inform the appropriate secretary sixty days before requesting appropriations and submit a written report to Congress reporting the conflicts between the project and the purposes of the WSRA, and the impact on the values of the Wild and Scenic River. The court cited the language and the legislative history of the statute as the basis for holding that Congress only intended to require the appropriate secretary's consensus when a federal agency is the authorizing agency, not when Congress itself is the decision maker. Since the Corps's ROD was not an "authorization" of the construction project--Congress had authorized it--nor was it "giving assistance" to others within the meaning of the WSRA, only the third sentence of section 7(a) applied. Therefore, the Corps was not required to gain the consent of the secretaries prior to issuing the ROD.

ONRC also appealed the district court's denial of two requests for injunctive relief: 1) that the court mandate the destruction of the partially completed dam and spillway as necessary for the survival of salmon and steelhead; and 2) that the court order preparation of a supplemental environmental impact statement (SKIS) since the court found the second SKIS failed to consider new information regarding the mitigation value of hatchery stocks to replace wild stocks.

The Ninth Circuit upheld the decision of the district court not to order the destruction of the dam. In the absence of a showing of a lack of any other remedy to prevent the destruction of the fish, the requirements for issuing a writ of mandamus had not been fulfilled and could not be granted. The Corps had implemented a trap-and-haul program to help sustain the wild coho salmon, and in the absence of any showing that this action would be unsuccessful in the short term, it was reasonable to defer the removal of the dam until the completion of the decision-making process. Also, the Ninth Circuit cited the likely environmental consequences of the destruction of the dam and its possible rebuilding as a factor in its decision to uphold the lower court.

The Ninth Circuit also upheld the decision of the district court not to require the Corps to produce another SKIS. The fact that the court had found that the Corps had not considered significant new information did not in itself compel the production of a new SKIS. Rather, the Ninth Circuit held that this finding only required the Corps to "take a hard look" at the proffered new information. If the Corps in its review determined that the information was neither new nor significant, a new SKIS would not be required.

Although ONRC had raised a number of other issues on appeal, they were either made moot by the holdings of the Ninth Circuit, or were not reached due to other considerations.

9. Oregon Natural Resources Council v. Marsh, 52 F.3d 1485 (9th Cir.), aff'd in part by Oregon Natural Resources Council v. Harrell, 52 F.3d 1499 (9th Cir. 1995).

Environmental groups filed suit against the U.S. Army Corps of Engineers (Corps) under the National Environmental Policy Act (NEPA) to enjoin construction of a dam. The environmental groups argued that the Corps's second environmental impact statement supplement (KISS) was inadequate in its failure to contemplate cumulative effects of the dam in conjunction with the two other dams already built pursuant to a 1962 congressional authorization.

This case is preceded by six other decisions. The first (Marsh I) was brought in 1985 by the Oregon Natural Resources Council (ONRC) under NEPA, challenging the Corps's approval of this third dam on the grounds that the first KISS was inadequate. The district court held the KISS adequate and condoned the dam construction. On appeal (Marsh II), the Ninth Circuit reversed and remanded on the ground that the KISS had failed to address the cumulative effects of all three dams. On remand (Marsh III), the district court enjoined construction of the dam until the Corps could prepare a new KISS. Marsh IV was the Corps's appeal to the Supreme Court on issues other than the inadequacy of the first KISS. Although the U.S. Supreme Court reversed with regard to the issues before it, the KISS inadequacy holding was left intact. The case was remanded to the district court (Marsh V).

The Corps issued a second KISS in 1991 addressing four alternatives; three involved completion of the dam, one did not. Of the three involving completion, two allowed for the completion with the purposes of water conservation and flood control, the third only for flood control. The latter was recommended by KISS-2. However, ONRC criticized KISS-2 during the comment period for failing to consider the cumulative effects of the dams. Nevertheless, the Corps approved further construction under this last option and moved to dissolve the outstanding injunction. ONRC filed suit in a new action to either remove the dam's spillway or destroy the dam altogether under the Wild and Scenic Rivers Act and NEPA. These claims were not addressed in this case.

The only issue left in this case was whether KISS-2 had taken a "hard look" at the cumulative effects, as required by NEPA. The district court held that KISS-2 had complied with Marsh II.

ONRC contended that KISS-2 did not fully discuss all of the cumulative effects of the three dams. The Corps argued that Marsh II only required two elements be discussed: water temperature and turbidity, and their effects on fish.

The Ninth Circuit held that the two elements mentioned in Marsh II were mere examples of factors that could affect the fish. They were not exhaustive. The court held that on remand, the Corps needed to prepare a new KISS considering "any environmental factors essential to informed agency decisionmaking." The Ninth Circuit also allowed ONRC attorney fees for litigation costs associated with KISS-1's failure to assess cumulative impacts.

The dissent pointed out that even if the Corps construed Marsh II too narrowly, restricting its inquiry to only water temperature and turbidity, the Corps did not necessarily fail to take a "hard look" into the environmental consequences as required by NEPA.

10. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.1995), cert. denied, 116 S. Ct. 698 (1996), infra part IV.B.

11. National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir.1995), infra part II.E.

D. Toxic Torts

1. Kennedy v. Collagen Corp., 67 F.3d 1453 (9th Cir.1995), cert. denied, 116 S. Ct.2579 (1996).

Charlotte Kennedy was treated with Zyderm Collagen Implant (Zyderm) for soft tissue skin defects. Following her treatment, Mrs. Kennedy developed systemic lupus erythematosus (SLE), an auto-immune disease. Charlotte and Robert Kennedy sued Collagen, alleging state common law negligence, strict liability, breach of warranty, battery, conspiracy, and loss of consortium.

The district court granted summary judgment for Collagen because the state common law claims were preempted by the Medical Device Amendments (MDA). The Kennedys appealed, claiming the MDA did not preempt their state common law claim and genuine issues of material fact existed in the case.

On appeal, the Ninth Circuit began with a review of the legislative history of the MDA. Congress, the court noted, passed the MDA to ensure medical products are safe and effective. The accompanying Food and Drug Administration (FDA) regulations provide that state and local laws are preempted only when the MDA contains specific counterpart regulations or requirements applicable to the specific device at issue. Thus, the court determined the MDA does not preempt laws of general applicability such as state common law claims. The Ninth Circuit reversed the district court's granting of summary judgment for Collagen and remanded the case.

The concurring opinion was written to give a more comprehensive definition of the word "requirement" in the MI3A. The concurrence argued that if a state common law requirement has the same effect on a device or product as it does on all other devices and products, that requirement is not preempted by the MDA.

2. Durfey v. E.I. DuPont De Nemours Co., 59 F.3d 121 (9th Cir. 1995), supra part I.B.

3. Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir.), cert. denied, 116 S. Ct. 189 (1995).

Jason Daubert and Eric Schuller sued Merrell Dow for compensation for limb reduction birth defects allegedly caused by their mothers' ingestion of Bendectin, a morning sickness pill manufactured by Merrell Dow. The district court granted summary judgment for Merrell Dow based on exclusion of the plaintiffs' expert testimony. The Ninth Circuit affirmed. The U.S. Supreme Court granted certiorari and used the opportunity to overrule the Frye(26) "general acceptance" test for the admissibility of expert testimony. Based on the Federal Rules of Evidence, the Court established a two-pronged test and placed judges in the role of "gatekeepers." Under the new test, judges must first determine if the expert testimony reflects scientific knowledge, whether it is derived by the scientific method, and whether the work product is good science. The Court referred to the second prong as the "fit" requirement: the judge must then determine if the testimony will assist the trier of fact. The Court vacated the judgment and remanded to the Ninth Circuit.

The Ninth Circuit viewed the first prong of the test as requiring it to evaluate the basis, rather than the content, of the expert testimony. The court determined there must be objective evidence the expert had used the scientific method, not just his "bald assurance" he had done so.

The U.S. Supreme Court listed factors courts could use to determine if the expert had used scientific methods. These include whether scientists in general accept the methods; whether the research has been published; whether the research can be tested; and whether the potential rate of error is within reasonable bounds. The Ninth Circuit read this list as "illustrative rather than exhaustive." For its own analysis, the Ninth Circuit relied upon the following factors: whether the research was conducted independent of litigation; whether the research had been subjected to peer review through publication; and whether the expert could show that his methods were objectively accepted by at least a minority of the scientific community.

All of the plaintiffs' experts conducted their research specifically in preparation for the Bendectin litigation. The court reasoned that research undertaken in preparation for litigation is more likely to be biased than that undertaken independently. Additionally, none of the studies had been published and the only serious review the studies had received was in the courts. Furthermore, the Food and Drug Administration continues to approve Bendectin. The court reasoned if the studies had merit, scientific journals would have published them. Lastly, the experts could not point to objective sources to back up their methodologies. Despite these factors, the court generally determined the testimony was not inadmissible as a matter of law. Because the record had been developed while Frye was still the law of the circuit, the court reasoned that the plaintiffs might be able to present some additional evidence that would meet the new standard.

One of the plaintiffs' experts, Dr. Palmer, based his testimony on his belief that Bendectin was a teratogen and his examination of the plaintiffs' medical records; he offered no testable theories on which he based his conclusions. Because he testified from no "understandable scientific basis," the court held his testimony was personal opinion, not science, and struck it.

The court also held that the plaintiffs' evidence failed the second prong of the test, the "fit" test. Looking to California tort law, the court reasoned the plaintiffs would have to prove that Bendectin more likely than not caused their birth defects. Dr. Palmer testified to that, but his testimony was inadmissible under the first prong.

Because the plaintiffs had produced no admissible evidence to create a genuine issue of material fact as to causation, the Ninth Circuit affirmed the district court's granting of summary judgment in favor of Merrell Dow.

II. NATURAL RESOURCES

A. Endangered Species Act

1. Environmental Defense Center v. Babbitt, 78 F.8d 867 (9th Cir. 1995).

Under the 1995 congressional appropriations rider, the Secretary of the Interior (Secretary) was precluded from using previously appropriated funds to finance final threatened or endangered species listing determinations under the Endangered Species Act (ESA). The Ninth Circuit held that the appropriations rider effectively restricted the Secretary's ability to comply with his statutory duty under the ESA to make a final determination as to the status of the California red-legged frog. The Ninth Circuit held the Secretary's compliance was accordingly delayed until a reasonable time after appropriated funds were made available.

The Environmental Defense Center (EDC) first sued the Secretary for failing to meet the twelve-month statutory deadline under which the Secretary was required to determine whether listing the frog was warranted, or precluded due to work on other pending listing proposals. The first case settled when the Secretary agreed to publish a proposed rule to implement the listing of the frog. When the Secretary failed to meet the new deadline for the proposed rule, EDC filed a second suit that resulted in the Secretary publishing a proposed rule that the frog be listed as an endangered species. The ESA requires the Secretary to act within one year on a proposed rule by promulgating a final rule, withdrawing the proposed rule, or extending the decision period by six months. Because the Secretary failed to meet this statutory deadline, EDC filed the present suit and prevailed in district court.

The Ninth Circuit held that if Congress had not restricted the Secretary's access to appropriated ESA funds, EDC would have prevailed on appeal. While the court determined that the appropriations rider neither removed the Secretary's statutory duty to make final listing determinations, nor repealed or modified the listing provisions of the ESA, the rider temporarily removed funds available to carry out the duty. Accordingly, the rider restricted the Secretary's ability to comply with his duty, and would continue to delay a determination until a reasonable time (determined by the district court on remand) after Congress made funds available.

2. Sierra Club v. Babbitt, 65 F.8d 1502 (9th Cir. 1995).

Sierra Club brought suit challenging the construction of a logging road crossing U.S. Bureau of Land Management (BLM) land on Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) grounds. The road building was based on a 1962 reciprocal right-of-way agreement between the Secretary of Interior and Woolley Logging Company, a private land owner who must cross federal land to reach its property. The right-of-way allowed Woolley to use BLM lands and to construct new roads to access its property. The agreement was made prior to the enactment of both NEPA and the ESA, and it listed only three specific instances when BLM could object to the construction of new roads.(27) In 1989, Woolley assigned its right under the agreement to Seneca Sawmill Company (Seneca), and BLM approved the assignment with stipulations that Seneca must comply with all "applicable State and Federal environmental laws, regulations and standards." If Seneca violated this stipulation, BLM could discontinue the road construction.

When Seneca submitted a construction plan in 1990, BLM prepared an environmental assessment (EA) determining that the construction "may affect" the spotted owl and its habitat. In response, the Regional Solicitor issued an opinion that BLM did not have discretion under the agreement to act on behalf of the threatened species, regardless of the environmental stipulations contained in the assignment. Instead, the Regional Solicitor opinion suggested that BLM advise Seneca that the construction may result in an incidental taking which would require an incidental take permit under section 9(a) of the ESA.(28) BLM then reissued an EA with a finding of no significant impact (FONSI) because the road would "not have any significant impacts on the human environment." BLM determined that it need not consult with the U.S. Fish and Wildlife Service (FWS) regarding the spotted owl because it lacked discretion to prohibit the construction, but also advised Seneca that violations of the incidental take prohibitions of the ESA could lead to a cessation of the construction. Sierra Club then filed suit alleging that BLM's EA was inadequate because BLM failed to consult with FWS, thus violating the ESA. The ESA requires consultation with FWS by an agency before undergoing any discretionary action that may affect a listed species.(29) The district court granted Sierra Club's motion for summary judgment on the ESA claim and BLM's motion for summary judgment on the NEPA claim.

On appeal to the Ninth Circuit, BLM argued that the consultation provisions of the ESA did not apply where the relevant agency action took place before Congress enacted the ESA, that it lacked discretion under the original contract to deny construction of the road, and that the environmental stipulation did not broaden any discretion it did have. The court distinguished Pacific Rivers Council v. Thomas,(30) which had held that Land and Resource Management Plans (LRMPs) prepared by the Forest Service were continuing agency actions having ongoing and lasting effects extending beyond the time of their adoption. Here, the Ninth Circuit reasoned, the right of way agreement was fixed and the agency had no real discretion that would allow it to take action relevant to the threatened species. The court did not agree with the Sierra Club's contention that the ESA implicitly invalidated preexisting agreements because section 7(a)(2) of the ESA is not retroactive, but limited to cases where the agency retains some control over the private activity. Furthermore, section 7(a)(1), which requires federal agencies to further the purposes of the ESA, could not be read to expand BLM's power past its enabling act, and only obligates it to use the power it already possesses. Therefore, because BLM did not have any discretionary power under the contract, it did not have any implicit duty or authority to limit the right of way.

Sierra Club also argued that, regardless of BLM's limited ability under the original contract, the environmental stipulation enacted in 1989 when Woolley assigned the contract to Seneca, and which therefore came after the enactment of the ESA, obligated BLM to meet the requirements of section 7(a)(2). The Ninth Circuit, however, found that the stipulation did not broaden BLM's ability to cancel the contract on environmental grounds. Rather, the stipulation only allowed BLM to take action if and when there was an environmental violation. The court stated that if Seneca did not obtain an incidental take permit pursuant to section 9 of the ESA,(31) Sierra Club could then pursue a claim for violating the ESA.

Finally, the court found that BLM did not violate NEPA because NEPA is only triggered by discretionary federal action. Because BLM only had limited ability to modify the contract, it did not possess sufficient discretion for the action to be termed "agency action."

The dissent found that the limited ability BLM had under the contract conferred sufficient discretion to effect the terms under the contract and that BLM's action would be subject to ESA and NEPA review.

3. Bennett v. Plenert, 63 F.8d 915 (9th Cir. 1995), cert. granted, 116 S. Ct. 1816 (1996), infra part IV.B.

4. Idaho Farm Bureau Federation v. Babbitt, 58 F.8d 1392 (9th Cir. 1995).

Idaho Farm Bureau Foundation (IFBF) brought this suit against the Fish and Wildlife Service (FWS) and other federal agencies alleging violations of both the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) for its listing of a type of snail as an endangered species. The issues on appeal were: 1) whether the ESA's statutory time limits barred the listing of the species as endangered, 2) whether FWS committed procedural errors in listing the snail as endangered, and 3) whether these errors were sufficiently serious to warrant setting aside the listing.

The Ninth Circuit first held that the intervenors/appellants Idaho Conservation League and Committee for-Idaho's High Desert (ICL/CIHD) had the right to intervene and had standing to bring this appeal.

With regard to the ESA's time limits for listing endangered species more than eighteen months after the listing is proposed, the Ninth Circuit held that Congress's underlying purpose for enacting the time limits was to expedite listing, not bar late listings. Therefore, the Secretary of the Interior, acting through FWS, has the authority to list a species as endangered even after the eighteen-month statutory time limit has expired.

The procedural requirements for FWS's listing of the snail are prescribed in both the APA and the ESA. The APA provides that "interested persons" are given the "opportunity to participate . . . through submissions of written data, views or arguments," and "after consideration of the relevant matter presented." ICL/CIHD first argued that FWS did not make available to the public the provisional United States Geological Survey (USGS) report referred to extensively in its supplemental information accompanying the final listing. Although there was some disagreement in the record, at least one FWS employee maintained that the USGS report was open to the public at the FWS field office. The Ninth Circuit concluded, however, that this report was not available to the public for comment when the final listing decision was made by FWS and therefore violated the APA. The court noted that "[o]pportunity for public comment is particularly crucial when the accuracy of important material in the record is in question."

ICL/CIHD also argued that the length of the public comment period was not adequate. The Ninth Circuit rejected this argument, holding that the public comment period provided was adequate and that the agency responded adequately.

The Ninth Circuit concluded that the failure to provide public review of the USGS report was a significant procedural error, and it remanded to the district court to require the Secretary to make the USGS report available for comment. The court directed the Secretary to provide the public with any new information he would be considering.

5. Idaho Department of Fish & Game v. National Marine Fisheries Service, 56 F.8d 1071 (9th Cir. 1995), infra part II.D.

6. Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir. 1995), supra part I.C.

7. Forest Conservation Council v. Rosboro Lumber Co., 50 F.8d 781 (9t77 Cir. 1995).

An environmental group, the Forest Conservation Council (FCC), filed suit against Rosboro Lumber Company to stop it from building a proposed access road and subsequently clearcutting forty acres of land, which allegedly threatened a pair of spotted owls, a threatened species. Both parties moved for summary judgment. The district court granted Rosboro's motion and denied FCC's motion. FCC appealed.

In May 1992, Rosboro applied to the Oregon Department of Forestry (ODF) for a permit to clearcut on private lands. Rosboro noted in its application that the activity would occur in an area in which there was a threatened or endangered species. Although ODF granted the permit, it noted that their permit alone would not necessarily satisfy the requirements of the Endangered Species Act (ESA).

Rosboro also needed permission from the Bureau of Land Management (BLM) to build an access road across BLM land to get to the timber. BLM advised Rosboro that the project "may result in an incidental take of the Swartz Creek owl pair" and that Rosboro needed to apply for an incidental take permit from the U.S. Fish and Wildlife Service (FWS). Rosboro never applied for the incidental take permit but subsequently built the access road.

FCC filed this suit to enjoin Rosboro from its proposed clearcutting activities, alleging the clearcutting constitutes an illegal "take" under the ESA without a permit. The relevant section of the ESA states that it is unlawful to "take" any endangered or threatened species.(32) "Take" includes any activity that "harms" such species. The specific issue before the court was the scope of the term "harm."

Relying on the Secretary of the Interior's definition of "harm" as "an act which actually kills or injures wildlife,"(33) Rosboro contended that the definition only contemplates past or current injuries, not future injuries, even when they are imminent. The Ninth Circuit disagreed.

The Ninth Circuit looked to the statutory language, the statutory purpose, and other provisions of the ESA and concluded that "harm" includes future imminent injuries. The court relied on legislative history for the proposition that "take" should be defined in the broadest sense possible. The court also noted that the stated purpose of the ESA is to conserve endangered species and provide a program in which to accomplish that goal. Forcing plaintiffs to wait until the damage or extinction had occurred would be contrary to that purpose, as it would "render their claims moot before they become ripe." The court next looked to the overall structure of the ESA and concluded that the injunctive relief provisions contemplate future actions. Finally, the court held its interpretation was consistent with existing case law.

The district court had ruled that habitat modifications that merely retard recovery are not actionable under the ESA. The Ninth Circuit expressly decided not to address this issue because FCC had supplied adequate evidence of actual injury to the owl pair.

The district court's granting of summary judgment in favor of Rosboro was reversed and the case was remanded to the district court.

B. Fish and Wildlife

1. American Tunaboat Association v. Brown, 67 F.8d 1404 (9th Cir. 1995).

The America Tunaboat Association (ATA) brought an action to enjoin the National Marine Fisheries Service (NMFS) from enforcing the fishing ban NMFS determined was necessary to prevent ATA from killing more dolphins than its permit quota allowed. The Ninth Circuit held that the closure was reasonable in order to meet the dolphin quota for a particular year and that the quota must be lower than the quota for the prior calendar year. Because ATA had rapidly approached its prior year's quota, the court found the NMFS closure of the fishery cost ATA only a week's revenue and therefore the ATA's injury was insufficient to support a preliminary injunction.

The Marine Mammal Protection Act and the International Dolphin Conservation Act (IDCA) set a quota on the number of dolphins that ATA could kill during purse seining of tuna. Unless a global moratorium on the intentional taking of dolphins took place in March 1994, ATA would be limited to taking no more dolphins in 1994 than it took in 1993. In 1993, ATA took 115 dolphins and in early February 1994, ATA had already reported 107 dolphin mortalities. Because NMFS learned of the high rate of dolphin mortalities, and that no global moratorium would ensue by March 1994, it issued the fisheries closure to prevent ATA from exceeding its quota.

ATA argued that the closure was not timely because it had not yet reached its allowable quota on the day NMFS issued the closure notice. The Ninth Circuit found that ATA was not significantly harmed by NMFS's violation of the notice requirement because it was necessary for NMFS to take action to prevent ATA from violating the quota provision by the time the provision officially took place. The court found that NMFS's interpretation of the IDCA was permissible and that the violation of the notice requirement cost ATA only a week's worth of revenue. The Ninth Circuit agreed with the district court that the delay incurred by ATA in obtaining this relief did not rise to the level of irreparable injury required to support a preliminary injunction.

2. Oregon Natural Resources Council v. Harrell, 52 F.8d 1499 (9th Cir. 1995), supra part I.C.

C. Forests

1. Alaska Wilderness Recreation & Tourism Association v. Morrison, 67 F.3d 723 (9th Cir. 1995).

Cancellation in 1994 of a fifty-year timber contract dating to the 1950s released uncut timber in the Tongass National Forest in Alaska from the contract sale. After the contract was cancelled, the U.S. Forest Service offered the uncut released timber on a competitive bid basis to other logging companies. Environmental groups filed suit, seeking to enjoin the sale. They argued that the Forest Service failed to reconsider alternative uses of the land as required by the National Environmental Policy Act (NEPA) and the Alaska National Interest Lands Conservation Act (ANILCA).

The Forest Service manages national forests pursuant to its regional forest plans, which are subject to NEPA and ANILCA. The Tongass Forest Plan designated the contested lands as lands managed for multiple use (including timber) and for resource development. The plaintiffs argued that the contested lands' designation should be re-evaluated in a supplemental environmental impact statement (SKIS) since they have been released from the contract requirements. The Forest Service had determined that the areas were not in need of supplemental EISs because the need for timber and timber related jobs had not changed since the contract termination, and therefore the termination was not a significant change requiring the evaluation of new factors.

The Ninth Circuit first addressed whether the agency action should be reviewed with an arbitrary and capricious standard or a reasonableness standard. Because the court determined that the question of whether the Forest Service was required to undergo a formal SKIS is a legal issue, the strong deference granted to agencies for factual and technical matters was not warranted. Therefore, the Ninth Circuit applied a reasonableness standard in reviewing the agency actions.

Addressing the merits, the court agreed with the plaintiffs that the Forest Service had to consider alternatives in a SKIS. The Forest Service argued that since there were no new circumstances, only new parties, a SKIS was not required because a SKIS is only required when "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action of its impacts" arise.(34) The court disagreed, finding that the previous Forest Plan and EISs had been constructed around the pre-existing contract obligations, and that the cancellation of a contract which had previously limited the range of alternatives that an EIS could consider was a significant new event. The court also found that because the timber volume requirements found under the contract no longer existed, the Forest Service only had to meet market demand for timber, as required by the Tongass Timber Reform Act. Therefore, this gave the Forest Service flexibility it previously lacked in making site specific plans. Furthermore, the designation of the land as multiple use land is only a broad guideline, not a mandate, and did not exempt those lands from compliance with NEPA and ANILCA. Finally, the court found that because the contract existed before ANILCA, it had not met ANILCA section 801,(35) requiring the subsistence needs of the village residents be met. Release from contract obligations now freed the Forest Service to meet these needs.

In addressing whether to issue an injunction, the court stated that it must balance the harms between sustaining a "crippling" blow to the timber industry and economy against the injury to Alaska natives, tourism, and environmental concerns. The court decided to extend the temporary injunction and remand to the district court who could better weigh the alternatives, as this was essentially a factual question.

Three days after this opinion was originally filed, Congress enacted the Salvage Rider, which stated that an EIS or ANILCA subsistence evaluation prepared for timber sales in certain areas of Alaska, including this area in dispute, is deemed sufficient if the Forest Service sells the timber to an alternate buyer.(36) This provision was passed specifically to affect the outcome of this case. The court addressed this sufficiency language, holding that EISs in question here were not prepared "for a timber sale" because they were created around the pre-existing timber contract. The court recognized that Congress could change the underlying substantive law in a pending case, but that it had not done so here because "there is not the slightest indication that Congress intended" to vitiate the EIS process by eliminating the consideration of alternatives requirements of NEPA and ANILCA.

2. Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9th Cir. 1995), infra part IV.A.

3. Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), supra part II.A.

4. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995), supra part II.A.

5. United States v. Ryberg, 43 F.3d 1332 (9th Cir. 1995).

Two EarthFirst! members brought suit challenging their criminal convictions for interfering with the official duties of two U.S. Forest Service employees.(37)

The defendants were encamped with other EarthFirst! members when the two Forest Officers arrived to relay an emergency message regarding the death of a relative of an EarthFirst! member. The officers were greeted rudely and told to leave. As the officers left, the defendants threw themselves under the Forest Service vehicle. After being removed, they did it again, preventing the exit of the officers. The defendants were arrested, found guilty, sentenced to six months' imprisonment, and given a five hundred dollar fine.

The Ninth Circuit upheld the conviction, finding that the officers were performing an official duty because they were on duty, acting at the direction of their supervisors. The court held that this kind of duty contributed to the forests' administration because the officers were keeping peace at a time of hostility between loggers and EarthFirst! members. The court also held that is does not matter if there was a more appropriate federal statute under which the EarthFirst! members could have been convicted.

D. Hydroelectric Power

1. Aluminum Co. of America v. Bonneville Power Administration, 56 F.3d 1075 (9th Cir. 1995).

Direct Service Industries (DSIs) challenged the Bonneville Power Administration's 1993 Record of Decision (ROD) on Water Management Actions in the Columbia River System to be Taken by the Bonneville Power Administration (BPA) in 1993 for the Benefit of Snake River Salmon. The ROD contained various measures designed to benefit the Snake River salmon, which were listed as endangered and threatened species. The DSIs were primarily concerned with the flow augmentation measures contained in the ROD.

The Ninth Circuit dismissed the DSIs' claims for mootness. The court looked to the reasoning in Idaho Department of Fish and Game,(38) a companion to this case, and determined that because the 1993 flow augmentation measures had already occurred, the DSIs' claims were moot. The 1993 ROD was followed by a ROD which lasted for four years and gave the DSIs adequate time to obtain judicial review. Thus, the claims were not an exception to the mootness doctrine. In addition, the factual underpinnings of the ROD had been superseded by a 1994-1998 Biological Opinion. The court found that this made the claims especially inappropriate for judicial review.

2. Idaho Department of Fish & Game v. National Marine Fisheries Service, 56 F.3d 1071 (9th Cir. 1995).

The Aluminum Company of America and other Direct Service Industries (DSIs), the Pacific Northwest Generating Cooperative (PNGC), and the Public Power Council (PPC) appealed the district court's decision that federal agencies could reinitiate consultation with the National Marine Fisheries Service (NMFS) on the 1994-1998 Operations Plan. The Ninth Circuit vacated the judgment of the district court and remanded the case with instructions to dismiss the case as moot.

The U.S. Bureau of Reclamation (BOR), the U.S. Army Corps of Engineers (Corps), and the Bonneville Power Administration (BPA) were required to consult with NMFS pursuant to section 7 of the Endangered Species Act (ESA)(39) before the agencies could implement the 1993 Operations of the Federal Columbia River Power System. This consultation was necessary because dam operations would affect the Snake River sockeye salmon, listed as an endangered species, and the Snake River Spring/Summer and Fall chinook salmon, listed as a threatened species.

NMFS initially drafted a jeopardy biological opinion and recommended the agencies take certain alternative actions, including augmenting water flow. After drafting the initial opinion, two significant changes occurred. The agencies agreed to modify their plan to include the recommended actions, and the forecast for spring and summer flow improved. Due to the change in circumstances, NMFS issued a no-jeopardy opinion. NMFS used a two-step analysis to reach this result. First, NMFS analyzed whether the 1993 Operations Plan would reduce salmon mortality when compared with a baseline period of 1986-1990. Next, NMFS analyzed whether the Plan along with the modifications the agencies had agreed to would be reasonably likely to reduce salmon mortality such that populations would stabilize.

In 1993, the Idaho Department of Fish and Game brought suit against the NMFS, the Corps, and BOR, alleging that NMFS had violated the ESA. The State of Oregon intervened as a plaintiff and the Aluminum Company of America and other DSIs, PNGC, and PPC intervened as defendants. The DSIs asserted cross-claims against NMFS, the Corps, BOR, and a third-party claim against BPA. The DSIs challenged the two-step analysis. The district court granted summary judgment to Idaho holding that NMFS's Biological Opinion (BO) was arbitrary and capricious. The court ordered NMFS to reinitiate consultation with the federal agencies. The district court's decision came out twelve days before the 1993 BO was due to expire. The court allowed the parties to reinitiate consultation on the 19941998 Operations Plan. The DSIs and PNGC appealed.

The Ninth Circuit did not reach the merits of the appeal because it found the claims of the DSIs and PNGC moot due to the expiration of the 1993 BO and the issuance of the 1994-1998 BO. The court, however, did state that "a challenge is not barred if the action at issue is capable of repetition, yet likely to evade review."(40) If an agency action is of too short a duration to allow full litigation before it ceases and there is a reasonable expectation that the plaintiffs will be subjected to the action again, the challenge is not subject to the mootness doctrine.

The court found that the plaintiffs in this case did not fit the Greenpeace Action v. Franklin exception because in this case although the 1993 Operations Plan lasted for only a year, the next plan lasted for four years. The four-year plan would give the plaintiffs sufficient time to obtain judicial review.

3. Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 56 F.3d 1060 (9th Cir. 1995).

The Northwest Resource Information Center (NRIC) brought suit against the U.S. Army Corps of Engineers (Corps) and the National Marine Fisheries Service (NMFS). The Idaho Department of Fish and Game intervened as a plaintiff while the Pacific Northwest Generating Cooperative and a number of Direct Service Industries intervened as defendants. NRIC claimed that NMFS violated the Endangered Species Act (ESA) by issuing a section 10(41) permit that allowed the Corps to "take" Snake River sockeye salmon, an endangered species. The district court granted summary judgment for the defendants on this claim. NRIC also claimed that both the Corps and NMFS had violated the National Environmental Protection Act (NEPA). The district court granted summary judgment against NRIC on the NMFS claim but granted summary judgment for NRIC on the Corps claim. NRIC appealed the grant of summary judgment for NMFS on the ESA claim and the defendants appealed the grant of summary judgment against the Corps.

The Corps began a program of transporting salmon around the dams on the Columbia River in the 1970s. The program was designed to decrease the effect of the dams on the salmon. In 1992, pursuant to the ESA listing of two salmon species, one threatened and one endangered, the Corps issued the Columbia River Salmon Flow Measures 1992 Options Analysis/Environmental Impact Statement (OA/EIS). The OA/EIS examined the environmental effects of increasing the flow in the rivers by increasing the amount of water released from storage reservoirs. The Corps decided to implement a program of reservoir drawdown and flow augmentation. However, the Corps did not look at eliminating the transportation system because they believed the river was not currently capable of maintaining a sufficient population of juvenile salmon. In 1993, the Corps prepared a Supplemental Environmental Impact Statement (SKIS) that examined the flow augmentation measures the Corps would be implementing in the 1993 operational year. Again, the Corps assumed the transportation plan would continue.

NRIC claimed that the SKIS should have contained a discussion of the impacts of and alternatives to the transportation program. The defendants argued NRIC was not challenging final agency action as required by the Administrative Procedure Act because there had been no action, event, or proposal regarding the transportation plan. The court rejected this argument. Although NRIC was challenging the 1993 SKIS and the subsequent Record of Decision actions dealing with the flow improvement program, NRIC was asserting that the agency action taken may have been different if the transportation program had been considered.

The court next considered whether NRIC had waived the right to assert this claim by not raising its concerns in the scoping process. The court found the record showed that NMFS was aware of criticisms regarding the scope of the EIS "before, during, and after the scoping process."

The court then turned to the merits of the NRIC claim. The issue was whether the transportation program was considered a "connected action" as defined by 40 C.F.R. [sections]1508.25. If the transportation program was a "connected action," then the agency should have addressed the program in the same EIS as the flow improvement program. Based on several previous opinions,(42) the Ninth Circuit found that the transportation program was not a "connected action" because it had "independent utility" and either program standing alone would benefit the salmon. It also found that the transportation program was not a "link in the same bit of chain" as the flow improvement plan because the Corps would continue with the transportation program even without the flow improvement program. Because the transportation program was not a "connected action," the court held that NMFS complied with NEPA by briefly discussing the reasons that alternatives involving changes to the transportation program were not considered in the detailed study.

Next, the court turned to NRIC's appeal on the issue of whether NMFS had violated NEPA by granting the Corps a section 10 permit that allowed them to "take" salmon for their transportation program. "Take" is defined in the ESA as the killing, harming, capturing, or collecting of any listed species.(43) The court examined the threshold question of mootness. Mootness addresses whether there is still a live case or controversy for the court to decide. NRIC's transportation claims involved an agency action that took place entirely in 1993. The court concluded that unless NRIC's claim fit into an exception to the mootness doctrine, it would be barred. The primary exception to the mootness doctrine is for actions that "may be repeated and yet evade review."(44) The Ninth Circuit in Greenpeace Action v. Franklin(45) said this exception applied to actions of too short a duration to be fully litigated before the action ceases, when it is reasonably expected that the plaintiffs will be subjected to the action again. While the section 10 permit was valid for less than one year, it was followed by a section 10 permit that lasted for four years. This would allow an adequate period in which to obtain judicial review. Therefore, the court concluded that NRIC's NEPA claim against the Corps was moot.

E. Water Quality

1. California Trout v. Schaefer, 58 F.8d 469 (9th Cir. 1995), supra part I.C.

2. Dioxin/Organochlorine Center v. Clarke, 57F.8d 1517 (9th Cir. 1995).

Environmental groups and paper and pulp mills brought suit challenging, for different reasons, an action of the Environmental Protection Agency (EPA) under the Clean Water Act (CWA) in setting a Total Maximum Daily Load (TMDL) limiting the amount of dioxin that could be released into the Columbia River Basin. The district court granted summary judgment in favor of EPA. The environmentalist group Dioxin/Organochlorine Center (DOC) and Longview Fibre Co. appealed, seeking to overturn the summary judgment.

DOC argued that EPA standards were not stringent enough in that they failed to implement the preexisting state water quality standards. It contended that the EPA standards were flawed because they 1) inadequateIy protected aquatic life and wildlife, 2) inadequately protected specific human subpopulations, and 3) failed to consider the cumulative effect of dioxin-related pollutants in the water system.

The court held that, based on EPA documents and the testimony of one of the principal developers of the TMDL, EPA's decision to set the TMDL adequately considered the protection of aquatic life and wildlife and human subpopulations. On the issue of considering the cumulative effect of other pollutants in the river, the court held that the CWA did not require EPA to issue TMDLs for all pollutants at one time. Thus, the court concluded that EPA's decision was within the reasonable limits of its discretionary authority. Since DOC could not show EPA's decision to be arbitrary and capricious, the decision of the district court was upheld.

The pulp mills argued that EPA should not have set any TMDLs at all. They based this conclusion upon their interpretation of 33 U.S.C. [sections] 1313(d)(1)(A), under which they argued EPA was prohibited from developing TMDLs prior to the proven failure of technology-based limitations. They pointed to the legislative history of the CWA in support of their claim. EPA argued that the section required TMDLs where existing pollution controls did not lead to attainment of water quality standards.

The court held that EPA's interpretation was reasonable because under the CWA, toxic pollutants such as dioxin were not subject to best practicable technology limitations, but rather to best available technology limitations (BAT). Moreover, the court specifically held that section 303(d)(46) allows EPA to establish TMDLs for waters contaminated with toxic pollutants without prior development of BAT limitations. It held EPA's interpretation was not contrary to congressional intent, since it fit within the legislative history of the CWA, which placed a priority on the rapid reduction of known toxic pollutants. Since EPA's interpretation and application of the CWA was found to be reasonable, there was no basis for overturning the summary judgment.

3. Northwest Environmental Advocates v. City of Portland (NWEA II), 56 F.3d 979 (9th Cir. 1995), cert. denied, 116 S. Ct. 2550 (1996).

The plaintiffs, Northwest Environmental Advocates (NWEA) brought this suit to enjoin the City of Portland from discharging raw sewage during times of heavy rain through combined sewer overflow (CSO) outfalls into the Willamette River and Columbia Slough. The district court held Portland's discharge points were covered by its National Pollution Discharge Elimination System (NPDES) permit, and that it lacked jurisdiction to consider NWEA's claims that Portland violated Oregon's water quality standards.

The Ninth Circuit affirmed the district court and held that Portland's permit covered the contested discharge points and that NWEA lacked standing to bring a citizen suit under the Clean Water Act (CWA) to enforce water quality standards contained in Portland's permit.(47) On petition by NWEA for rehearing en bane, and in response to the U.S. Supreme Court's decision in PUD No. I of Jefferson County v. Washington Department of Ecology,(48) the Ninth Circuit vacated its opinion in NWEA I.(49)

NWEA argued that Portland's NPDES permit expressly identified only two point sources--both from a treatment plant--and did not cover any overflow into CSOs. Because the permit contained a separate schedule that allowed overflow from CSOs, albeit minimized as much as practicable during the water recreation season, the Ninth Circuit held that Portland's NPDES permit allowed the CSO events under the conditions specified in the separate schedule. The court recognized that under CWA regulations, the permit should have contained effluent limitations for the CSOs, but found that the parties' intent suggested they decided to omit technology based effluent limitations for the permitted point sources. The court also rejected NWEA's public policy argument that the CSOs were not covered by the permit because it would not be in the public interest to construe a permit so as to authorize "gross pollution of public waterways." Citing the $1.2 billion estimated cost to revamp the Portland sewer system, the court found this alternative was not clearly in the public interest.

NWEA also argued that Portland's CSO events violated Oregon's water quality standards, even though Portland's NPDES permit did not contain effluent limitations for the CSOs. Portland argued that Congress retained water quality standards as the ultimate goal of pollution control, but attempted to reach this goal through end-of-the-pipe technology-based effluent limitations. Accordingly, Portland concluded that NWEA could not sue to enforce water quality standards regarding the CSOs because the standards had not been translated into technology-based effluent limitations. The Ninth Circuit reversed the district court's finding that NWEA lacked standing to enforce water quality standards that had not been translated into effluent discharge limitations.

The Ninth Circuit found that the CWA allowed citizen suits for violations of effluent standards because effluent standards can be defined as "a permit or condition thereof." Because Portland's permit required that no wastes be discharged that would violate water quality standards, the court concluded that citizen suits could be brought to enforce Portland's permit. In addition, the court held that while the 1972 amendments to the CWA reflected Congress's intent to improve and simplify enforcement through effluent limitations, the amendments did not supplant the water quality standards. The court relied on the U.S. Supreme Court's holding in Jefferson County, and other cases that support citizen suit jurisdiction, to bolster its conclusion that NWEA had standing to enforce the water quality standards contained in Portland's NPDES permit. The court found citizen suit enforcement of water quality standards was necessary to effectively enforce the CWA's standards that cannot be expressed quantitatively, such as those that apply in this case to bacterial pollution, aesthetic conditions, objectionable matter, and to the overflow from irregular CSO events.

In dissent, Judge Andrew Kleinfeld argued that water quality standards that have not been translated by permit into effluent limitations cannot be enforced through citizen suits. He asserted that Congress intended the permit issuing authority to set end-of-the-pipe effluent standards for a permit, which could be based on water quality standards, but would not grant standing for a citizen suit where the permittee complied with end-of-the-pipe discharge limitations but the water still became polluted. Water quality standards, Judge Kleinfeld noted, are useful to government agencies because they provide goals, but they are too "uncertain and amorphous" to be used as specific pollutant standards against specific polluters.

In January 1996, Portland filed an amended petition for rehearing en bane of the decision in NWEA II. The rehearing failed to receive a majority of the votes for en bane reconsideration, which prompted a lengthy dissent by Judges Diarmuid O'Scannlain, Cynthia Hall, Thomas Nelson, and Andrew Kleinfeld. They argued that the NWEA II majority misread Jefferson County. Instead of supporting the notion that citizens may sue to challenge permit conditions that have not been translated into effluent limitations, the dissent argued that Jefferson County stood only for the principle that states may impose certain water quality requirements on federal permit applicants that operate as conditions for granting required state certification. It is then up to the authorities, not citizens, to enforce the standards.

The dissent also contended that the Ninth Circuit's holding in Oregon Natural Resources Council v. United States Forest Service(50) (that the CWA forbids citizens from suing to enforce water quality standards under section 301(51) should be extended to prohibit suits by citizens trying to enforce water quality standards contained in permits similar to Portland's permit. Noting that the Fifth and Second Circuits held that citizens do not have the right to enforce state water quality standards contained in permits, the dissent concluded that the NWEA II majority created a needless intercircuit conflict and a cause of action that Congress never intended.

4. Leslie Salt Co. v. United States (Leslie Salt IV), 55 F.8d 1388 (9th Cir. 1995), cert. denied, 116 S. Ct. 407 (1995).

The Ninth Circuit, reviewing its earlier decision in Leslie Salt Co. v. United States (Leslie Salt II),(52) followed the law of the case doctrine and held that the migratory bird rule was valid and that civil penalties are mandatory under section 309(d)(53) of the Clean Water Act (CWA). The migratory bird rule establishes that the Commerce Clause power is broad enough to extend Army Corps of Engineers (Corps) jurisdiction to local waters that may provide habitat to migratory birds and endangered species.

The law of the case doctrine requires a panel of an appellate court to reconsider only matters not resolved in a prior appeal to another panel in the same case. After remand to the district court of the Leslie Salt II case,(54) the Ninth Circuit found that its scope of review should be limited to the issue of what parts of Leslie Salt's property had sufficient connections to interstate commerce due to migratory bird use to be subject to Corps's jurisdiction under the CWA.

Cargill, Inc., the corporate successor to Leslie Salt, argued for a broader scope of review. It wanted the court to ignore the law of the case doctrine because, it asserted, the court failed to adequately support its decision in Leslie Salt II to uphold the migratory bird rule. To make this showing, the Ninth Circuit required Cargill to show not only that Leslie Salt II was wrong, but that it was clearly wrong. Cargill attempted to meet this burden with a three-pronged argument.

First, Cargill argued that the Corps's preamble to the 1986 regulations defining "waters of the United States"--a key element necessary for Corps jurisdictional under the CWA--was only published in the Federal Register and not subjected to notice and comment as required by the Administrative Procedure Act. The Leslie Salt IV court held that the preamble, which set out migratory bird examples, was not a substantive rule, but rather an interpretive rule of the Corps's understanding of the statutory term "waters of the United States." Because interpretive rules are not subject to notice and comment procedures, the court held that Leslie Salt II could not be deemed clearly wrong.

Second, Cargill argued that the Corps unreasonably interpreted its CWA jurisdiction to extend to habitat used by migratory birds. After finding that the legislative history of the CWA supported Corps jurisdiction over waters of the United States to the maximum extent possible under the commerce clause, and finding some support in the U.S. Supreme Court's holding in United States v. Riverside Bayview Homes, Inc.(55) and the Seventh Circuit's holding in Hoffman Homes, Inc. v. EPA,(56) the Leslie Salt IV court held that the Leslie Salt II court was not incorrect in concluding that the Corps's jurisdiction extended to migratory bird habitat.

Third, Cargill argued that even if the migratory bird rule was a reasonable interpretation of the CWA, it exceeded Congress's powers under the commerce clause. The Leslie Salt IV court found support in Hughes v. Oklahoma(57) and Palila v. Hawaii Department of Land and Natural Resources(58) for the proposition that Congress's commerce clause powers extend to the regulation of migratory birds. While the Ninth Circuit admitted that the migratory bird rule tested the limits of the commerce clause power, it held that its broad sweep precluded a holding that the Leslie Salt II court erroneously decided this matter against Cargill.

Finally, in an issue of first impression, Judge Harry Pregerson wrote a concurring opinion in which the Ninth Circuit concluded that civil penalties under section 309(d) of the CWA are mandatory. Cargill argued that the district court, in Leslie Salt III, incorrectly held that the language "shall be subject to" a civil penalty mandates that civil penalties be imposed for violations of the CWA. Based on the plain language of the statute, the Ninth Circuit agreed with the conclusion of the Fourth and Eleventh Circuits that the words "shall be subject to" means that civil penalties are mandatory. "Shall," the court found, has always been a word of command, not guidance. Moreover, the court determined that when Congress intended penalties to be discretionary, it used less definitive language such as "may assess as penalty" to indicate its intent to grant courts discretion. In his dissent, majority opinion writer Judge Diarmuid O'Scannlain argued that if Congress intended CWA penalties to be mandatory, it could have provided that a violator "shall pay" a civil penalty. Instead, it used more permissive language that two district courts and the Sixth Circuit have found grant courts discretion in assessing civil penalties. Judge O'Scannlain concluded that even if section 309(d) is ambiguous, the rule of lenity favors an interpretation least likely to unintentionally impose penalties, and therefore, even applied to civil sanctions, the rule of lenity requires civil penalties under the CWA to be discretionary.

5. National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir. 1995).

The Farmers Home Administration (FmHA) took title to a ranch in Idaho as a result of delinquent payments by the borrower. A bank in Spokane, Washington held a mortgage on a portion of the 4,704 acre ranch, including about 730 acres of wetland. After determining that the debt exceeded the value of the property, FmHA transferred the ranch to the bank in satisfaction of the mortgage. The bank in turn sold the ranch to the Baxters, who graze cattle on the ranch, including the wetlands.

Environmental groups brought suit under the Administrative Procedure Act against the Secretary of Agriculture, FmHA officials, the bank, and the Baxters, alleging that FmHA's transfer of property to the bank without creating easements to protect the wetlands violated section 1813(h)(1) of the Food, Agriculture, Conservation, and Trade Act of 1990 (FACTA)(59). The complaint also alleged FmHA's failure to draft an environmental impact statement (EIS) before transferring the property violated the National Environmental Policy Act (NEPA).

The district court dismissed the action for failure to state a claim. The court held that the transfer of the property did not trigger the wetland easement requirements of FACTA; NEPA was not violated by a failure to prepare an EIS; no cause of action was stated against the Baxters because all of the alleged violations applied to government agencies, not individuals; and the court had no power to grant relief when state law governed the disposition of property. The environmental groups appealed.

The Ninth Circuit held that the environmental groups had standing to file suit. Further, it reversed the decision of the district court by holding that the conveyance of the ranch from FmHA to the bank constituted a "disposal" under section 1813(h)(1) of FACTA, and therefore the requirement to establish easements protecting the wetlands prior to the transfer did apply. Rejecting FmHA's argument that when property is burdened by a prior lien the decision whether to impose wetland conservation easements is discretionary, the Ninth Circuit held the mandatory language