Case summaries.

I. ENVIRONMENTAL QUALITY

A. Hazardous Waste

1. A & W Smelter & Refiners, Inc. v. Clinton, 1246 F.3d 1107 (9th Cir. 1998).

A & W Smelter (A & W) possessed an ore pile at its processing facility in the Mojave Desert. The ore included small amounts of silver and gold, some naturally occurring lead, and slag--a waste product of smelting. A & W decided to move the ore pile and contracted with Relief Mining Company to process the ore in Baja, Mexico. A & W packed the ore into drums and began shipping it. Several trucks were stopped at the Mexican border and their contents labeled "hazardous" because of the lead. Mexico returned these trucks several months later. The United States Environmental Protection Agency (EPA) ordered A & W to reclaim the ore within three days; when A & W failed to comply, EPA declared the ore abandoned and took it to a storage facility. EPA issued an order to A & W directing it to dispose of the ore in an approved landfill. Meanwhile, A & W had diverted six other truckloads of ore to Nevada. EPA directed A & W to ship this ore to a hazardous waste landfill, but A & W claimed that the Nevada site was a temporary storage site.

A & W eventually complied with both orders and filed a complaint seeking reimbursement of its compliance costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(1) EPA moved for summary judgment, which the district court granted. A & W then appealed.

According to CERCLA, "when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility," he may issue disposal orders.(2) Those who pay for cleanup but believe they should not have done so may petition for reimbursement of reasonably incurred costs.(3) If EPA refuses, violators may sue in district court.(4) Additionally, violators may be reimbursed if the order was arbitrary and capricious,(5) even if the violator was otherwise liable. A & W claimed reimbursement on both grounds.

EPA argued that A & W was responsible for cleanup costs under section 9607(a) of CERCLA, which holds liable "any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance."(6) EPA labeled the ore pile hazardous because it contained lead. CERCLA defines "hazardous substance" pursuant to several other statutes or to EPA regulations promulgated under the Act.(7) EPA pointed to regulations promulgated under CERCLA(8) and to Clean Water Act regulations listing lead as a hazardous substance(9) to support the contention that A & W violated CERCLA. A & W countered by requesting that the court read a minimum hazard level requirement into the statutes and regulations.

First, the Ninth Circuit noted that neither section 9601(14) of CERCLA nor EPA regulations establish minimum levels for classifying substances as "hazardous." Moreover, the Second, Third, and Fifth Circuits all agree that CERCLA's definition of hazardous substance has no minimum level requirement. Consequently, the Ninth Circuit declined to read a limitation into the statute, reasoning that such a reading would intrude into Congress's province.

Second, the Ninth Circuit addressed whether the shipment sent to the disposal facility constituted a release. "Release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)."(10) Although the ore stayed within the drum, the government claimed that there was an abandonment because A & W did not move the shipment within EPA's three-day time limit. While case law does not define "abandonment" under CERCLA, according to common law, property is "abandoned" when the owner intends to relinquish all interest in it. A & W claimed it intended to retrieve the ore but did not have the means to do so within the time limit. EPA did not present evidence of any regulation or well-established agency practice defining abandonment.

The court stated that although ad hoc agency action is entitled to deference, the degree of deference depends on how much deliberation went into reaching the decision and whether it fits within a policy the agency has consistently followed. Here, there was no indication that the agency considered objections to its conclusion that the ore was abandoned. Additionally, since there was no suggestion that there was another meaning of the term other than that intended by Congress, the court held that there was no reason to defer to EPA's interpretation of the statute.

Third, the court discussed whether A & W was liable under CERCLA. A & W would be liable only if it arranged for "disposal or treatment" of hazardous substances.(11) Disposal is "the discharge of any solid waste or hazardous waste."(12) Treatment is "a method, technique, or process ... designed to change the ... character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume."(13) The court explained that A & W disposed or treated the ore only if it was waste, but that the ore was not waste and not subject to CERCLA if it was a useful product. In this case, the ore had not been processed, because smelting unprocessed ore was A & W's business. Therefore, the ore was one of the producer's principal business products. However, slag, a by-product of smelting, was also mixed with the ore. If the ore had been mixed with enough slag so that it was no longer usable for A & W, it would be considered waste. The court held that examining A & W's actions and commercial practices would determine whether the ore mixture was a waste. Consequently, the court remanded this issue to the district court.

Finally, the Ninth Circuit discussed whether EPA's order was arbitrary and capricious. It noted that EPA may issue an order if the agency determines there is "an imminent and substantial endangerraent to the public health or welfare or the environment."(14) A & W claimed that the guidelines issued by EPA defining its use of this power were void for vagueness. Therefore, it claimed that EPA's actions were arbitrary and capricious and that A & W should be reimbursed. The Ninth Circuit rejected this argument, noting that only a "minimal rationality" is needed to withstand arbitrary and capricious review. Because the meaning of "imminent and substantial" was not absolutely clear, the court defined "substantial" here as a release that does more than present a minimal threat to health, welfare, or the environment. The court then noted that A & W did not argue that its release was not a substantial endangerment to health or the environment. Due to the obscurity on this issue, the court stated that this question could be raised on remand to the district court.

2. Atchison, Topeka & Santa Fe Railway Co. v. Brown & Bryant, Inc., 159 F.3d 3,58 (9th Cir. 1998).

In this case, the Ninth Circuit revised a 1997 opinion(15) in which the court refused to assign successor-in-interest liability to the purchaser of interests of a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(16) The revised opinion substantially repeats the analysis and holding of the prior opinion, but does not hold that state law determines the scope of successor liability.

Plaintiff railroad companies, Atchison, Topeka & Santa Fe Railway Company and Southern Pacific Transportation Company (Railroads), brought this contribution action under CERCLA to recover cleanup costs for soil contamination on property leased to defendant Brown & Bryant (B & B). Railroads sought contribution from defendant PureGro, which had purchased many of B & B's assets once B & B realized it could not afford to comply with cleanup orders issued by the Environmental Protection Agency (EPA) pursuant to CERCLA. The Ninth Circuit held that PureGro was not liable for contribution because it was not the successor-in-interest. First, the Ninth Circuit declined to apply CERCLA's "mere continuation" exception to the general rule that asset purchasers are not liable as successors-in-interest.(17) Second, the court found that PureGro's purchase of B & B's assets did not qualify for the "fraudulently entered transaction" exception to the same rule.(18)

Aside from minor grammatical and citation amendments, the court altered its analysis in the revised opinion only in its discussion of the expanded "substantial continuation" exception.(19) The court in the prior opinion determined, on the basis of a series of United States Supreme Court cases, that state law dictates the parameters of successor liability. The court declined to assign liability because the governing law of California includes no substantial continuation exception.(20)

In the revised opinion, the court noted that its decision not to extend the mere continuation exception to include the notion of a substantial continuation rendered the same result under either state or federal law. The court did not need to determine whether state law governed the scope of successor liability, because in this case both state and federal law reached the same result. The court also deleted a paragraph from the earlier opinion that rejected an argument for expanding the "mere continuation" rule on the basis that such expansion would increase the funds available to finance CERCLA cleanup operations.

3. United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998).

Harold B. Chapman, Jr. manufactured small metal collars and stored and sold military and commercial surplus chemicals on his land in Washoe County, Nevada. The United States Environmental Protection Agency (EPA) began an investigation of his facility in 1989 at the request of the county. EPA conducted a preliminary assessment of the site to determine if a removal action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(21) was necessary. The site contained approximately two thousand five-gallon containers of paint, insulating oil, sulfuric acid, chloroform, alcohols, and other military surplus chemicals, plus more than one hundred fifty-five-gallon drums of unknown substances. Most of the drums were stored outside in an unprotected storage yard, and many of the drums were leaking into the soil, which was stained in several areas.

After the preliminary assessment, Washoe County issued orders directing Chapman to bring his property into compliance. In April 1990, the county issued a misdemeanor citation to Chapman for failure to comply with county orders, and in May 1990, the County Commissioner revoked Chapman's business license. The county then called on EPA for assistance.

On May 24, 1990 EPA issued Order 90-10. In this order, EPA stated that the site posed an "imminent and substantial endangerment to the public health or welfare or the environment because of the release or threatened release of hazardous substances."(22) The agency claimed that the site posed a substantial risk of fire and/or explosion, that many of the drums were leaking into the soil and could migrate into groundwater, that groundwater contamination could result in contamination of the domestic and agricultural aquifer (endangering residents and crops), and that the site was a danger to the Bureau of Land Management's Wild Horse and Burro Adoption Center located nearby. The order required Chapman to take immediate action to secure the site, to submit a detailed site removal and stabilization plan, and to contain or prevent the release of hazardous substances. It also required him to remove hazardous substances from the site.

EPA deemed subsequent compliance documentation prepared by Chapman inadequate and incomplete, and on January 8, 1991, EPA conducted another inspection and found containers of paint waste and flammable liquids remaining on the property. Some of the containers were open and leaking, and soil stains remained where other drums had been stored outside. Because Chapman had not complied with EPA's order, the agency initiated a response action. Chapman began to comply with the order one month later by removing the containers from the site and submitting soil samples to EPA.

In April 1992, EPA requested $33,946.00 from Chapman for response costs it had incurred. Chapman refused to pay and the United States brought this action against Chapman to collect. The district court granted summary judgment in favor of the government and Chapman appealed.

To establish a prima facie case to recover response costs, the government must prove that 1) the site is a "facility," 2) a "release" or "threatened release" of a hazardous substance has occurred, 3) the government incurred costs in responding to the release or threatened release, and 4) the defendant is a liable party.(23) Once these elements are established, the burden shifts to the defendant to prove that the government's response action was inconsistent with the National Contingency Plan (NCP), which guides federal and state response actions.(24) Consistency with this plan is presumed, and the burden is on the defendant to prove that EPA's response action was arbitrary and capricious.(25) Chapman first claimed that the EPA's response action was arbitrary and capricious because it ordered removal of material without determining whether the material was hazardous. However, because 1) EPA inventoried and sampled the containers at the site and identified hundreds of drums and containers of chemicals and oils, 2) the drums were stored outside in an unprotected storage yard, 3) soil samples showed the substances were hazardous, and 4) the drums had deteriorated, the court held that EPA did not act arbitrarily or capriciously in ordering removal of the material.

CERCLA allows for the recovery of "all costs" of a removal or remedial action, including attorney fees attributable to cost-recovery litigation.(26) The court held that because Chapman initially did not comply with EPA's order, the agency had to begin recovery operations and litigation. Therefore, the court noted that EPA could recover legal costs associated with the removal action. EPA claimed attorney fees of over $400,000 and removal costs of $34,000. The Ninth Circuit remanded the case to the district court to consider the reasonableness of the government's requested litigation expenses. The court stated that the district court should "provide a concise but clear explanation of its reasons for the fee award."(27)

Second, Chapman claimed that there was a genuine issue of material fact as to whether he caused a release or threatened release of a hazardous substance on his property, and that the government failed to establish a prima facie case sufficient for the district court to grant summary judgment. The Ninth Circuit disagreed, citing the evidence in the administrative record as satisfying the government's burden of proof. The record showed that there were visible soil stains and contamination and that some of the two thousand drums stored on the property were rusted and corroded, without tops, and in poor condition. Additionally, the record showed that hazardous substances were found on the premises.

In his defense, Chapman stated that he did not directly manage the facility. The appellant claimed that his environmental consultant assured him that all the containers on the property were properly packaged with no leakage. The Ninth Circuit rejected this claim, noting that the assertions were hearsay and inadequate to rebut the evidence in the record presented by EPA. As a result, the government's evidence established a prima facie case under CERCLA.

Third, Chapman argued that because EPA did not maintain appropriate documentation of its response action and costs incurred, he should not have been held responsible for them. The appellate court disagreed, noting that the government gave detailed cost summaries to the district court showing costs incurred by the EPA. EPA staff, attorneys, accountants and supervisors had provided declarations regarding the work they performed and the time spent on the Chapman site, and documentation of costs in the form of timesheets and payroll documents were found in the record. The court held that this evidence showed that EPA had adequately documented its expenditures.

Fourth, Chapman claimed that EPA did not review the preliminary assessment and current site conditions before determining that a removal action was appropriate, thereby violating regulations promulgated under CERCLA.(28) The Ninth Circuit rejected this contention, pointing to the extensive evidence in the preliminary assessment and the record as a whole. It was therefore appropriate for EPA to determine a removal action was in order.

In a related issue, Chapman argued that EPA did not consider the following appropriate factors when it determined a removal action was in order: 1) actual or potential exposure to nearby human population, animals, or the food chain; 2) actual or potential contamination of the water supply; 3) hazardous substances in drums, barrels, or containers that may pose a threat of release; 4) hazardous substances in soils near the surface that may migrate; 5) weather conditions that may cause migration; 6) threat of fire or explosion; 7) the availability of other federal or state response mechanisms; and 8) other factors that may pose threats to public health or welfare.(29) The court explained that Order 90-10 specifically considered all of these elements except the availability of other federal or state response mechanisms factor. Nevertheless, the court held that because EPA worked in conjunction with the county prior to issuing the order and acted consistently with the NCP, EPA had considered all the required factors.

Finally, Chapman alleged that EPA was required to issue a community relations plan according to the 1985 version of the NCP. That version required a formal community relations plan if on-site removal activities are expected to extend beyond forty-five days. The court held that the order to remove all hazardous substances was issued in May 1990, and that the 1990 version of the NCP--requiring a community relations plan if hazardous substances were not removed within 120 days--applied. Because EPA ordered the substances removed within 120 days, and because the 1990 version of the NCP applied, EPA's actions were consistent with the NCP.

4. United States v. Omega Chemical Corp., 156 F.3d 994 (9th Cir. 1998).

In this case, the Ninth Circuit reversed a grant of summary judgment assessing civil penalties for alleged violations of the access and entry provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(30) The court held that because Omega Chemical Corporation (Omega) consistently allowed the Environmental Protection Agency (EPA) to enter its facility and conduct investigative activities during the period for which penalties were assessed, Omega's refusal to sign a formal written consent giving EPA unconditional access to its facility did not constitute a violation of the statute.

Omega operated a spent solvent recycling facility in Whittier, California that became subject to an administrative investigation and response plan under CERCLA in January 1995. In April 1995, EPA requested that Omega sign a written consent form giving potentially responsible parties and EPA unconditional access to the site. EPA subsequently issued a compliance order in May 1995. Omega responded with a letter outlining its intent to comply with those portions of the order within its physical and financial ability but reserving the right to object to those portions of the order "beyond ... the legal authority of [EPA]."(31) The letter specifically reserved the right to object to "un-consented to searches" and noted that Omega's intended compliance with the order did not constitute a grant of consent to access or a waiver of any statutory or constitutional right.(32)

In a series of correspondence between EPA and Omega, EPA indicated that it interpreted Omega's refusal to sign the consent form as a failure to consent to access for the removal action. In June 1995, EPA secured an administrative warrant and began removal activities at the site. EPA then initiated this action, claiming Omega's failure to sign the consent form constituted a violation of CERCLA's access and entry provisions. The district court granted summary judgment.(33)

The Ninth Circuit framed the question presented by this case as whether civil penalties were authorized under CERCLA for "a site owner's failure to provide unconditional written consent to entry, where the facts indicate that the landowner consistently has provided physical access to the site."(34) The court noted that Omega had in fact provided EPA with access to the site during the penalty period, pointing to evidence gathered by the agency itself that sufficiently demonstrated this fact. This evidence included a preliminary assessment of the site, investigation photographs, and daily and weekly site inspections, as well as soil, groundwater and drum samples. The court explained that Omega consistently allowed access to the property for EPA investigations and that there was no countervailing evidence that Omega had physically obstructed or otherwise barred EPA from entering the site.

The court next addressed EPA's claim that failure to provide written unconditional consent constituted a violation of the statute's access and entry provisions.(35) EPA argued that an interpretation of the statute that did not require formal written consent would not provide EPA with the certainty of access necessary to accomplish a CERCLA cleanup: a mere pledge of intent to cooperate would not protect EPA from the possibility that an owner would subsequently withdraw consent at a critical juncture in the cleanup process, thus compromising EPA's ability to safely and effectively remove hazardous substances. The court rejected this argument, holding that neither the statute nor its implementing regulations contain language requiring unconditional written consent. The statute authorizes penalties for failure to comply with the provisions authorizing EPA to access, enter, and inspect the site.(36) The court found the most logical reading of these provisions to be that noncompliance arises from failure to allow access, entry, or inspection, but does not arise from failure to provide written consent. Because Omega had not failed to allow access to the site, the imposition of civil penalties for noncompliance was improper. The court also noted that while EPA's policy directive on entry and access suggested that inspectors seek written consent, in the absence of that consent EPA is authorized to issue an administrative order and secure a warrant. Such procedures adequately provide EPA with the desired certainty of access.

Moreover, the court noted, EPA's insistence that Omega sign a written consent form was "paradoxical" given the language of that form. The consent form stated that permission to enter was "voluntary with knowledge of my right to refuse." The court took the view that consent could not be voluntary if failure to sign was grounds for imposition of a penalty: "Either the form is genuinely voluntary, in which case civil penalties should not attach, or the form is mandatory, which is a requirement that cannot be found anywhere in CERCLA or its implementing regulations."(37)

EPA finally argued that Omega had violated CERCLA's access and entry provisions by qualifying its willingness to cooperate on the condition that information secured by EPA would "not [be] used in the prosecution of any action against [Omega]."(38) While CERCLA itself does not speak to the imposition of conditions, both CERCLA's implementing regulations and EPA's policy directive treat imposition of conditions as a denial of consent. However, the court distinguished the conditions Omega sought to impose as being conditions upon the future use of information obtained during the cleanup process, not as conditions upon entry. As a result, these conditions did not implicate CERCLA's access and entry provisions, and did not provide a basis for imposition of penalties for noncompliance.

B. Solid Waste

1. Resource Investment, Inc. v. United States Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998).

Resources Investments, Inc. (RII) sought to develop a solid waste landfill in Pierce County, Washington. The Army Corps of Engineers (Corps), however, denied RII's request for a dredge and fill permit for the landfill under the Clean Water Act.(39) The District Court for the Western District of Washington affirmed the permit denial. RII appealed, and the Ninth Circuit vacated the decision of the district court, holding that as a matter of law, the Corps lacked the authority to require RII to obtain a dredge and fill permit. Because development of the landfill involved solid waste disposal issues, the Environmental Protection Agency (EPA) was responsible for overseeing any potential development under the Resource Conservation and Recovery Act (RCRA).(40)

RII's proposed landfill would have covered 168 acres of a 320-acre site and would have required the clearing, excavating, filling, and grading of approximately 21.6 acres of wetlands. The landfill complied with the Tacoma-Pierce County Solid Waste Management Plan, which met the statutory requirements of the State of Washington. The State of Washington developed its plan pursuant to the federal mandate of RCRA,(41) "which requires each state to develop a plan for the safe and environmentally-sound disposal of solid waste within its jurisdiction."(42)

After buying much of the land on which it was to develop the landfill, in 1988 RII began applying for the permits it needed in order to commence construction. Pierce County granted a conditional use permit, and RII applied to the Tacoma-Pierce County Health Department for a solid waste handling permit. In order to obtain this permit, RII had to demonstrate successfully that

   1) a practicable alternative to the proposed landfill that did not involve
   wetlands was not available; 2) the construction and operation of the
   landfill would not cause or contribute to violations of any applicable
   state water quality standard, violate any applicable toxic effluent
   standard or prohibition, jeopardize the continued existence of endangered
   or threatened species or critical habitats, or violate any requirement for
   the protection of a marine sanctuary; 3) the landfill would not cause or
   contribute to significant degradation of wetlands; and 4) steps had been
   taken to achieve no net loss of wetlands by first avoiding impacts to
   wetlands to the maximum extent practicable, then minimizing unavoidable
   impacts to the maximum extent practicable, and finally offsetting remaining
   unavoidable wetlands impacts through all appropriate and practicable
   compensatory mitigation actions.(43)

RII satisfied these criteria, and the health department granted the solid waste handling permit.

In 1990, RII applied to the Corps for a permit under section 404 of the Clean Water Act (CWA) "to discharge dredged or fill material into the navigable waters of the United States."(44) The Corps denied the application, finding that RII "failed to demonstrate the unavailability of practicable alternatives for waste disposal that were less environmentally damaging."(45) Thus, the Corps found that RII had not demonstrated that it had considered every practicable alternative to developing a landfill that would have adverse environmental impacts. The district court affirmed the Corps' denial of the CWA section 404 permit.

RII appealed the district court's decision. It asserted that the Corps did not have the authority to require a dredge and fill permit, because RCRA mandates that either EPA or states with solid waste permit programs have the authority to regulate municipal solid waste disposal. The Ninth Circuit agreed.

The court first determined that the municipal solid waste that would occupy the landfill did "not fall within the definition of either `dredged material' or `fill material."'(46) The solid waste was neither "excavated or dredged from waters of the United States"(47) nor "used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a waterbody"(48) as the regulatory definitions required. In addition, Corps regulations specifically provide that section 402 of the CWA governs the disposal of solid waste. Thus, the nature of the waste itself took the proposed landfill out of the purview of the Corps' permitting authority.

Next, the Ninth Circuit highlighted the unreasonableness of the Corps' interpretation of section 404 of the CWA. Under RCRA, EPA and states with EPA-approved solid waste disposal programs specifically regulate the siting, design, and construction of landfills in wetlands. Therefore, an interpretation that would also give the Corps authority to regulate these activities could lead to duplicative and potentially inconsistent results, but Corps policy discourages this type of "regulatory overlap."(49) In fact, the Corps' own regulations provide that "state and federal regulatory programs should complement rather than duplicate one another."(50)

The court also looked at correspondences between the Corps and EPA over the years to support its conclusion that the Corps should not play a role in the permitting of solid waste landfills. The court cited a 1984 letter from the Assistant Secretary of the Army to the Administrator of EPA that noted EPA's expertise in solid waste disposal and the Army's lack of experience in the same area. The letter concluded by stating that "[i]t strains reason to have the Army Corps of Engineers, with its primary military and navigation missions, to lead this garbage disposal regulation."(51) In addition, a Memorandum of Agreement between the two agencies emphasized that EPA has sole responsibility for the regulation of solid waste disposal. The court found ample authority to support its conclusion that "when a proposed project affecting a wetlands area is a solid waste landfill ... EPA (or the approved state program), rather than the Corps, will have permit authority under ... RCRA."(52) Thus, the Ninth Circuit reversed the district court's decision and remanded the case with instructions to vacate the Corps' decision to deny RII's permit for the landfill.

C. Clean Water Act

1. Montana v. United States Environmental Protection Agency, 137 F.3d 1135 (9th Cir. 1998), infra Part IV.2.

2. Resource Investment, Inc. v. United States Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998), supra Part I.B.1

3. Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998).

In this case, the Ninth Circuit denied standing to a citizens' group that claimed that the City of Santa Rosa, California, was violating provisions of its permit under the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act (CWA).(53) The court held that the district court had not committed clear error in finding that the city's methods of measuring compliance were reasonable and did not violate its permit, and that the citizens' group did not have standing because it was unable to prove the likelihood of continuing or recurrent violations of the CWA at the city's waste water treatment plant.

Under the CWA, discharge of pollutants into the navigable waters of the United States is regulated under the NPDES permit system.(54) In most cases, entities that discharge pollutants must obtain a permit from the authorized state or federal agency that specifies discharge prohibitions, effluent limitations, and other treatment and monitoring requirements. Here, the entity charged with issuing NPDES permits in the Santa Rosa area is the California North Coast Regional Water Quality Control Board (Board), established pursuant to California law. The Board issued the NPDES permits at issue in this litigation to the city in 1986, 1990, and 1996 in order to regulate discharges from the city's main wastewater treatment plant (the Laguna Plant). The permits contained discharge prohibitions; numeric effluent limitations; receiving water limitations; and requirements for solids disposal, pretreatment of industrial waste, monitoring, and reporting.

In 1995, the plaintiffs filed suit under the Clean Water Act, alleging that the city was in violation of its permit. Plaintiffs alleged that the city was continually and repeatedly violating its NPDES permit, but the district court rejected this allegation.(55) The district court also found that because the plaintiffs could not show a likelihood of recurring violations, they lacked standing to bring suit under the CWA.(56) On appeal, the Ninth Circuit affirmed the findings of the district court.

First, the appellants alleged that the city's method of measuring compliance with the discharge requirements was improper and resulted in discharge of wastewater in excess of the permit limitations. The executive officer of the Board had developed a "seven-day averaging method" for measuring allowable discharge rates. The Ninth Circuit found no clear error in the district court's determination that the city's compliance monitoring scheme was a reasonable interpretation of the permit's requirements, because the permit did not indicate the manner by which to calculate discharge requirements. In the absence of a specified method, the district court had properly held that the city's method was reasonable in light of the evidence showing that this technique was chosen because 1) it accounted for irregularities in the discharge system, 2) was workable, and 3) was chosen after comparison of a number of other methods. The appellate court noted that "[i]n sum, [plaintiffs'] argument boils down to their dissatisfaction with the method used by the City to calculate compliance with the NPDES permits.... They prefer a daily monitoring system to the seven-day averaging method selected.... [Their] preference, however, is unsupported by any showing that the seven-day averaging method is improper."(57)

Second, plaintiffs alleged that the city had failed to monitor final effluent chlorine and coliform organisms as required by the permit. The city had monitored chlorine and coliform by taking samples at the end of one of three chlorine contact chambers. Citing permit language that required that measurements be taken "`at the end of the chlorine contact chamber,'"(58) the district court found that the permit did not require multiple tests at the end of each chamber. The Ninth Circuit affirmed this finding, noting that the evidence showed that tests taken at one chamber were representative of chlorine and coliform levels in all three chambers.

Third, plaintiffs argued that the executive officer lacked authority to determine the method of compliance with the permit and that this determination constituted a modification of the permit. However, the Ninth Circuit noted that under California law, the Board was authorized to delegate this power to its executive officer. Furthermore, the court noted that establishing a method of compliance with a permit does not constitute a modification of the permit under federal law.

After dispensing with the merits of the case, the Ninth Circuit affirmed the district court's determination that the plaintiffs lacked standing. The court noted that under the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,(59) citizens may not sue under the CWA for wholly past violations. Plaintiffs could not pursue their claims against the city because they could not prove the existence of either ongoing violations or the reasonable likelihood of continuing future violations of the city's NPDES permit. Finally, the Ninth Circuit also affirmed the district court's award of costs to the city pursuant to the Federal Rules of Civil Procedure.(60)

4. United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998).

Appellant Iverson appealed a conviction of four counts of violating the Clean Water Act (CWA),(61) the Washington Administrative Code (WAC), and the City of Olympia's Municipal Code (Olympia code). He also appealed the conviction of one count of conspiring to violate the WAC or the CWA. He argued that 1) the district court misinterpreted the CWA, the WAC, and the Olympia code; 2) the cited provisions were unconstitutionally vague; 3) the district court erred in formulating its "responsible corporate officer" jury instruction; and 4) the district court erred by admitting evidence of defendant's prior discharges of industrial waste. The Ninth Circuit held that the district court had not abused its discretion and affirmed the convictions.

The appellant was the founder, president, and chairman of the board of CH2O, a company that blends chemicals to create products such as acid cleaners. The company shipped the blended chemicals to its customers in drums and asked that the drums be returned for reuse. The drums often contained chemical residue that CH2O removed by using a cleaning procedure that produced wastewater. In the early to mid-1980s, the appellant made several attempts to convince the local sewer authority to accept the wastewater, but it refused. Beginning in 1985, the appellant personally discharged and also ordered employees to discharge the wastewater through a sewer drain at an apartment complex that the appellant owned and through a sewer drain at the appellant's home. This continued until 1988.

In 1988 and at the direction of a new employee, CH2O began to pay a waste disposal company to dispose of the wastewater. In 1991, CH2O began shipping the drums to a professional outside contractor for cleaning. After CH2O fired the employee, the company reinitiated its drum-cleaning operation and disposed of its wastewater through a sewer in a newly acquired warehouse. The dram-cleaning operation continued until 1995, when CH2O learned that it was under investigation for the discharge of pollutants into the sewer.

A few months before CH2O reinitiated its drum-cleaning operation, the appellant announced his retirement from the company. He continued to receive money from CH2O, conduct business at the company's facilities, give orders to employees, and was occasionally present when the drums were cleaned. Sometimes he told employees that he had a permit for the operation and other times he told them that the consequences for getting caught were small.

A jury convicted Iverson of violating the CWA, the WAC, and the Olympia code. Although the WAC and the Olympia code violations are not federal offenses, the CWA allows states to administer water pretreatment programs. If the Environmental Protection Agency (EPA) approves a state's regulations, as it did for Washington, violations of those regulations are treated as federal criminal offenses.(62) The regulations implementing the CWA also require publicly owned treatment works (POTWs) to create their own regulatory programs.(63) These local regulations are considered pretreatment standards under the CWA.(64) Because EPA had approved the City of Olympia's regulations, violations of these regulations are also violations of the federal CWA.(65)

The appellant argued that the district court had misinterpreted the CWA, the WAC, and the Olympia code. The Olympia code defines a pollutant based on the effect of the discharge, and provides that if state standards are more stringent than federal standards, then state law applies.(66) The WAC states that "[a] permit is required for any source subject to pretreatment standards promulgated under ... [the CWA]."(67) Clean Water Act regulations prohibit the discharge of "[a]ny trucked or hauled pollutants, except at discharge points designated by the POTW."(68)

The court held that because the Olympia code and the WAC both incorporate the federal standard by reference, they also prohibit the discharge of "any trucked or hauled industrial waste except at discharge points designated by the POTW."(69) Because the appellant discharged hauled or trucked industrial waste at a point not designated by the POTW, he violated the CWA, the WAC, and the Olympia code regardless of any effect the discharges had on the water. Therefore, the Ninth Circuit held that the district court did not err in its interpretation of the CWA, the WAC, and the Olympia code.

Appellant also argued that the CWA, the WAC, and the Olympia code are unconstitutionally vague. A criminal statute is not vague if it gives adequate notice of the conduct the statute prohibits in terms that a "reasonable person of ordinary intelligence" would understand.(70) Additionally, when a criminal statute regulates economic activity, it is usually "subject to a less strict vagueness test ... because businesses can be expected to consult relevant legislation in advance of action."(71) The WAC and the Olympia code incorporated by reference the federal prohibition on the discharge of trucked or hauled industrial waste. The Ninth Circuit found that a reasonable person of ordinary intelligence would have consulted the incorporated provisions. Therefore, the appellate court held that the CWA, the WAC, and the Olympia code were not unconstitutionally vague.

Appellant next argued that the district court erred in formulating its "responsible corporate officer" jury instruction. The district court instructed the jury that it could find Iverson liable under the CWA as a responsible corporate officer if it found, beyond a reasonable doubt, that 1) defendant had knowledge of the fact that pollutants were being discharged to the sewer system by CH2O employees, 2) defendant had the authority and capacity to prevent the discharge of pollutants to the sewer system, and 3) Iverson failed to prevent the ongoing discharge of pollutants to the sewer system. The appellant argued that a corporate officer is "responsible" only when he or she in fact exercises control over the activity causing the discharge or has an express corporate duty to oversee the activity.

The Ninth Circuit disagreed. First, it looked to the statutory language of the CWA, which holds criminally liable "any person who ... knowingly violates" its provisions.(72) "Person" includes "responsible corporate officer," but the CWA does not further define that term.(73) The Ninth Circuit therefore looked to the plain meaning of the term "responsible" and held that it meant "answerable" or "accountable." Consequently, any corporate officer who is "answerable" or "accountable" for the unlawful discharge is liable under the CWA.

Second, the appellate court looked to the history of responsible corporate officer liability law and held that it agreed with the district court's construction of the CWA. Notably, in the CWA Congress used a similar definition of the term "person" as that formulated by the United States Supreme Court in a case that left the question of responsibility to the jury.(74) A later Supreme Court case (United States v. Park) refined the question for the jury as whether the corporate officer had the "responsibility and authority either to prevent in the first instance or promptly to correct, the violation complained of, and [whether] he failed to do so."(75)

Third, the court stated that Congress replaced the criminal provisions of the CWA after the Park decision and made no changes to its responsible corporate officer provision. The court therefore held that Congress intended Park's refinement of the doctrine to apply. Finally, the court stated that it had interpreted the term "person" in other statutes consistently with the Supreme Court's decision in Park. As a result, it was consistent for the court to do so in this instance. On the issue of corporate criminal liability under the CWA, the court concluded that a person is a responsible corporate officer if he has authority to exercise control over the corporation's activity that is causing the unlawful discharges. The CWA does not require that the officer in fact exercise that authority, or that the corporation expressly grant the officer the duty to oversee the activity.

The appellant next argued that the district court's jury instruction did not accurately reflect the "responsible corporate officer" doctrine. The jury instruction required the government to prove that the appellant had the authority and capacity to prevent the discharge of pollutants to the sewer system. This ensured that the jury could convict the appellant only if he had actual authority to exercise control over the drum-cleaning operation. According to Iverson, the "responsible corporate officer" instruction allowed the jury to convict him without finding a violation of the CWA, because the initial instruction on liability under the CWA required a showing that defendant knowingly caused a pollutant to be discharged to a POTW. The court rejected this contention, noting that this instruction, read together with the responsible corporate officer instruction, relieved the government only of having to prove that the appellant personally discharged or caused the discharge of a pollutant. The government still had to prove that the discharges violated the law and that the appellant knew that the discharges were pollutants. Consequently, the court held that the instructions were not erroneous.

Finally, the appellant objected to the district court's admittance of evidence of the appellant's prior discharges of industrial waste 1) on the plant property, 2) into the sewer at an apartment complex owned by the appellant, 3) into the sewer at the appellant's house, and 4) caused by a chemical spill at the plant. However, the court held that evidence of a prior bad act may be admissible for a purpose other than to prove that the appellant acted in conformity with those prior acts.(76) The court explained that admission of these prior acts was relevant to prove the material issue of knowledge and that the prior acts were not too remote to be admitted. Although some of the prior acts had occurred more than seven years ago, the court explained that because of the similarity between the prior and charged acts, and because the appellant's knowledge of CH2O's industrial waste did not change over the seven years, they were admissible.

5. Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426 (9th Cir. 1998).

Waste Action Project (WAP), an environmental group, brought suit against Dawn Mining Corporation (Dawn), alleging that the mining company was violating the Clean Water Act (CWA)(77) by discharging pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. Between 1957 and 1981, Dawn disposed of uranium mill tailings in unlined aboveground disposal areas on its site in Ford, Washington. After WAP ceased operations at the site, contamination from the mill tailings began to migrate into a nearby creek. WAP claimed that this migration required a NPDES permit because it qualified as a discharge of a pollutant under the CWA.

The CWA gives the Environmental Protection Agency (EPA) the authority to regulate "pollutants," which are defined in section 502(6) to include "radioactive materials."(78) The EPA limited its regulatory powers over "radioactive materials" in 1973 when it promulgated the CWA's implementation regulations, which explicitly exclude "byproduct materials" as defined in section 11(e)(2) of the Atomic Energy Act (AEA)(79) from the definition of "pollutant."(80) Initially, the AEA's definition of "byproduct materials" did not include uranium mill tailings. However, in 1978, Congress passed the Uranium Mill Tailings Radiation Control Act (UMTRCA),(81) which amended the definition of "byproduct materials" to explicitly include uranium mill tailings.

WAP argued that despite the plain language of the AEA as amended by UMTRCA, EPA has the authority to regulate uranium mill tailings as "pollutants." WAP based its argument on UMTRCA's savings clause, which states that nothing in UMTRCA changes EPA's existing regulatory powers under the CWA.(82) WAP asserted that, because the definition of byproduct materials did not explicitly include uranium mill tailings when EPA excluded "byproduct materials" from the scope of its regulatory power in 1973, EPA retained the authority to regulate uranium mill tailings.

In rejecting WAP's argument, the Ninth Circuit relied heavily on the United States Supreme Court's opinion in Train v. Colorado Public Interest Research Group,(83) which dealt with an issue virtually identical to that in the instant case. In Train, a unanimous Court held that Congress did not intend for the category of "pollutants" regulated by EPA through the NPDES permit program to include materials regulated exclusively under the AEA.

The Ninth Circuit determined that the plain meaning of the AEA and the legislative history of the CWA overwhelmingly contradict the technicality raised by WAP. Additionally, EPA had never before regulated uranium mill tailings. Instead, the Atomic Energy Commission (AEC), now the Nuclear Regulatory Commission (NRC), had regulated uranium mill tailings at active sites since the AEA was passed in 1954. Congress enacted UMTRCA in part to give NRC explicit authority to regulate mill tailings at inactive sites, and UMTRCA's savings clause was not intended to subsequently revoke this authority. While UMTRCA does give EPA authority to promulgate standards for the disposal of uranium mill tailings, it leaves the implementation and regulation of these standards to NRC. Finally, EPA revised and repromulgated the CWA's implementing regulations in 1979 to cite the Train decision and to explain that only radioactive materials not regulated by the NRC are pollutants for purposes of the CWA.(84) Consequently, the Ninth Circuit held that uranium mill tailings are not subject to NPDES permit requirements under the CWA.

D. National Environmental Policy Act

1. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998), cert. denied, 119 S. Ct. 2337 (1999), infra Part III.B.1.

2. Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.), as amended by 158 F.3d 491 (9th Cir. 1998), infra Part V.B.1.

3. Foundation for Horses & Other Animals v. Babbitt, 154 F.3d 1103 (9th Cir. 1998).

Enacted by Congress in 1980, the Channel Islands National Park Act (CINPA)(85) directs the Secretary of the Interior to acquire parcels of real property for incorporation into the Channel Islands National Park. Pursuant to CINPA, the National Park Service (NPS) developed plans for acquiring the privately owned eastern portion of Santa Cruz Island, owned by the Gherini family. Pursuant to the National Environmental Policy Act (NEPA),(86) NPS issued a general management plan/supplemental environmental assessment (GMP/SEA), which announced plans to remove all exotic animals from the island in order to restore its natural ecosystem. That same year, NPS also issued a finding of no significant impact (FONSI), concluding that an environmental impact statement (EIS) would not be necessary because NPS had identified no significant adverse consequences that would result from its actions to restore the natural condition of the island.

The acquisition of the eastern portion of the island was delayed by one of the Gherinis, who was not willing to sell his interest in the land. To combat the delay, Congress revised CINPA in November 1996 to require the acquisition of all of the Gherini property, either by purchase or condemnation,(87) The appellants, Foundation for Wild Horses and Other Animals (Foundation) and its individual members, claimed that NPS violated NEPA by failing to supplement its 1984 GMP/SEA and FONSI before acquiring the land and removing any exotic animals. Foundation argued that the existence of twelve horses, which had yet to be born at the time NPS conducted its original studies, required the preparation of another supplemental environmental assessment.

Before the court reached the question of whether a supplemental environmental assessment was required, it disposed of the case by holding that the horses were not subject to NEPA. The horses, even though they were feral, were the private property of the Gherini family. The Foundation admitted as much in sworn affidavits that 1) evidenced the Gherini family's intent to convey the horses to the Foundation, and 2) asserted the Foundation's claim of ownership. Because the horses were private property, they were subject to CINPA's mandate that all "equipment, facilities, or personal property" be removed from the Gherini property upon acquisition.(88) The court cited to Lake Berryessa Tenants' Council v. United States,(89) which held that NEPA did not apply to a government directive to remove privately-owned floating structures from a publicly-owned lake. Because the horses in the instant case were personal property and Congress had called for the removal of personal property from the island, the horses were not subject to NEPA's procedures.

4. Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998), infra Part III.B.2.

5. Idaho Sporting Congress v. Thomas, 137 F.3d. 1146 (9th Cir. 1998), infra Part III.B.3.

6. Kettle Range Conservation Group v. United States Bureau of Land Management, 150 F.3d 1083 (9th Cir. 1998).

Kettle Range Conservation Group and Inland Empire Public Lands Council (Kettle Range) sued the United States Bureau of Land Management (BLM) in the District Court of the Eastern District of Washington to prevent the agency from completing a land exchange with defendant-intervenor Clearwater Land Exchange (Clearwater). Kettle Range claimed that BLM had not adequately considered the environmental impacts of the sale under the requirements of the National Environmental Policy Act (NEPA).(90) They sought permanent injunctive relief from the district court. Specifically, Kettle Range asked the court to 1) prevent BLM from completing the land exchange until it complied with NEPA, and 2) rescind the contract between BLM and Clearwater pending compliance with NEPA. The district court partially granted and partially denied injunctive relief.

In the Ninth Circuit, Kettle Range sought emergency relief pending an appeal from the district court's decision. The district court granted plaintiff's request to prevent BLM from completing the land exchange until it complied with NEPA requirements. The court refused, however, to rescind the contract between BLM and Clearwater pending NEPA compliance, as Kettle Range had requested.

On appeal, the Ninth Circuit held that it could not rescind the contract because Kettle Range had neither joined nor made any attempt to join the private entities to which BLM had transferred the public lands. The private entities were "necessary parties" with respect to the relief sought, and Federal Rule of Civil Procedure 19(a) requires the "joinder of persons needed for just adjudication."(91) The Ninth Circuit determined that, under Rule 19, "the parties holding title to the lands were necessary because the district court could not grant complete relief without `impair[ing] or imped[ing]' their interests."(92)

Kettle Range argued that it could not join the private entities because NEPA did not afford a cause of action against private parties. The Ninth Circuit acknowledged the general prohibition against joining private parties in NEPA actions, but it also recognized an exception to this bar: "Nonfederal defendants may be enjoined if `federal and [nonfederal] projects are sufficiently interrelated to constitute a single federal action for NEPA purposes.'"(93) While the court suggested that it was possible that BLM's action fit this exception, it did not see this issue as dispositive of Kettle Range's claim. Instead, the court framed the issue in terms of whether or not the district court could have equitably rescinded the contract for the land exchange without the private entities being parties to the action. It held that it could not.

The appellants nevertheless argued that the court should have suspended the usual rules of joinder in this situation pursuant to the "public rights exception." Courts have applied this exception when "`litigation ... transcend[s] the private interests of the litigants and seek[s] to vindicate a public right.'"(94) The Supreme Court has restricted the applicability of this exception to "cases in which the third parties' interests at issue are not destroyed."(95) Because title to the land already transferred had vested in the private parties, however, the Ninth Circuit determined that any order that voided the executed portion of the land exchange would destroy the interests of the absent parties. Thus, the court held that this appeal did not fall under the public rights exception, and the usual rules of joinder under the Federal Rules of Civil Procedure applied.

Finally, the Ninth Circuit concluded, "at this point it might be impractical to unscramble the eggs."(96) Evidence suggested that private entities had already harvested timber on at least some of the transferred land. Thus, even if the court were to grant Kettle Range's requested injunction, there would be no guarantee that the land involved in the exchange would not already be bereft of timber.

In a concurring opinion, Judge Reinhardt, while acknowledging that the district court acted properly in this case, nevertheless expressed his frustration at the practical outcome of these proceedings. "Although the district court held that the government violated NEPA and that it transferred public lands in violation of ... environmental laws, those lands will now be clearcut ... by the private purchasers. That is not how our legal system is supposed to work."(97)

7. Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998).

In early 1997, the Federal Aviation Administration (FAA) began to design the Los Angeles International Airport (LAX) East Arrival Enhancement Project (AEP). The purpose of the project is to reduce air traffic into LAX from the east and to increase the overall safety of arrivals. The AEP would require shifting flight patterns so as to cross the Morongo Indian Reservation, located about ninety miles east of Los Angeles.

FAA solicited comments from the Morongo Band of Mission Indians (the Band) under the National Environmental Policy Act (NEPA).(98) The Band objected to the new AEP, claiming that increased flights over the Reservation would interfere with their cultural and spiritual ceremonies. The Band proposed an alternative route that would avoid the Reservation, and FAA included it in the final environmental assessment (EA) for the AEP. After public comment on the final EA, FAA nevertheless chose an alternative that would reroute LAX air traffic over the Reservation. FAA issued a finding of no significant impact (FONSI) on October 24, 1997 and a record of decision (ROD) on January 30, 1998, and implemented the decision on March 10, 1998.

The Band petitioned for review of the agency's decision, raising several issues before the Ninth Circuit. First, the Band argued that the United States and its agencies bore a trust responsibility toward the Band and that FAA had violated that trust when it implemented the AEP. The court conceded that the United States has a trust responsibility towards the Band, but that "unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at protecting Indian tribes."(99)

The court next turned to the Band's NEPA claims, which included whether the FAA had 1) evaluated a reasonable range of alternatives, 2) evaluated noise impacts from the AEP, 3) improperly segmented the AEP from the general LAX expansion project, and 4) failed to address the cumulative impacts of the AEP. The court first noted that FAA had considered two alternatives that avoided the Reservation, but that these alternatives did not meet the purpose and need of the AEP, which was to create a new airspace sector in order to increase safety at LAX. Because NEPA only requires agencies to consider reasonable alternatives that meet the purposes and needs of a project, FAA's decision to reject the alternatives that did not encroach upon the Reservation was reasonable. Furthermore, the court rejected the testimony of the Band's expert witness (who stated that the purpose and need of the project could be met without increasing flights over the Reservation), noting that agencies have the discretion to rely on their own experts.

Second, the court rejected the Band's contention that FAA had failed to adequately analyze the impacts from increased noise potentially caused by implementation of the AEP. The Band proffered several expert witnesses who testified that the agency had not properly calculated the increased noise from the AEP, but the court refused to referee a battle of the experts between the agency and the Band. Instead, the court held that it was not arbitrary and capricious for FAA to use its own methods in calculating noise over the Reservation.

Third, the court turned to whether FAA had improperly segmented the AEP from the LAX expansion project. The court turned to whether FAA had failed to analyze the cumulative impacts of the two projects by improperly segmenting the AEP from the LAX expansion project. The court analyzed the NEPA regulation regarding connected actions(100) as well as existing Ninth Circuit case law on connected actions(101) and found that the AEP could exist independently from the LAX expansion project. While the expansion project dealt with increasing the size of the airport, the AEP "was [intended] to deal with existing problems of delay and inefficiency in the arrival system."(102) Because the two projects were not dependent on each other for their completion, FAA had been reasonable in discussing the impacts from each project in separate NEPA documents.

Next, the Ninth Circuit rejected the Band's claim that FAA had failed to address the cumulative impacts from the expansion and AEP projects. Although the two projects were similar because they both concerned the arrival system at LAX, FAA had adequately considered the impacts from both projects in several documents, including the AEP Environmental assessment, the LAX Master Plan study, and terminal radar approach control facility projections. As a result, FAA had satisfied its NEPA duty to consider the cumulative impacts from both projects.

The court then turned to claims raised by the Band that FAA had violated the National Historic Preservation Act (NHPA)(103) when it failed 1) to prepare an environmental impact statement (EIS) that considered whether the AEP would adversely affect "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register;"(104) and 2) to obtain the Band's permission to implement the AEP. The court noted that all of the visual and acoustic studies showed that the impacts to the Reservation and its eligibility for placement on the National Register would be minimal; as a result, no EIS was required. Furthermore, the court explained that although the NHPA required FAA to follow up on any information received from the Band regarding historical or cultural property within the project area, the agency's failure in this case to do so was not fatal, because the agency had already determined that there would be no effect to the Reservation from the AEP. The court also rejected the Band's contention that the NHPA required the FAA to obtain the consent of the Band to implement the AEP, because "[c]onsent is required ... only if the action is found to have an effect on the land and, here, a finding of no effect was made."(105)

Finally, the court addressed the Band's claim that FAA had violated section 4(f) of the Transportation Act.(106) Section 4(f) prohibits the "use" of historic sites unless there is no prudent and feasible alternative to the project and the project includes minimization methods to reduce the amount of harm to the site.(107) Noting that section 4(f) only applies if there is in fact a "use" of the site, the court accepted the government's argument that an FAA order properly excluded the type of activity in the present case from categorization as a "use" of land. Because FAA had previously concluded that the AEP "`would not affect the normal activity or aesthetic value of the land,'"(108) there was no use of the Reservation, and FAA had not violated the Transportation Act.

8. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372 (9th Cir. 1998), infra Part III.B.4.

9. Oregon Natural Resources Council Action v. United States Bureau of Land Management, 150 F.3d 1132 (9th Cir. 1998), infra Part III.B.5.

10. Presidio Golf Club v. National Park Service, 155 F.3d 1153 (9th Cir. 1998).

In 1899, the Presidio Golf Club (the Club) was constructed on private land adjacent to the Presidio military facility in San Francisco. The Club's golf course was actually on military property. Club membership was private, although military personnel could join for reduced rates. In 1994, the Presidio military facility closed, and ownership of the land was transferred to the National Park Service (Park Service). A year later, the Park Service contracted with Arnold Palmer Golf Management Company (Palmer Golf) to manage the golf course. Palmer Golf opened the golf course to public use and developed plans to construct a public clubhouse, potentially devaluing private membership at the Club.

As part of the development plans, the Park Service conducted an environmental assessment (EA) as required by the National Environmental Policy Act (NEPA).(109) Plaintiffs brought suit against the Park Service, claiming that the EA was inadequate under NEPA and that the new clubhouse would violate the National Historic Preservation Act (NHPA).(110) The Park Service in turn claimed that the Club did not have standing to sue. The district court found that the Club had standing, but that the Park Service had not acted arbitrarily or capriciously in preparing the EA. Thus, an environmental impact statement (EIS) was not required. The Club appealed.

The court first addressed the question of whether the appellants had standing under NEPA and the NHPA. In order to establish Article III standing, a plaintiff must show that 1) it has suffered an injury in fact that is imminent and particular, 2) there is a causal connection between the alleged harm and the defendant's actions, and 3) the injury is redressable by a favorable ruling by the court.(111) Prudential barriers to standing, including a determination of whether the plaintiffs injury is within the "zone of interests" that the statute at issue was meant to protect, also apply. The zone of interests stipulation is codified in section 702 of the Administrative Procedure Act (APA).(112)

In the present case, the Park Service claimed that the Club's only interest was economic, and that NEPA and the NHPA do not protect interests that are purely economic in nature. The court rejected this argument. It reviewed the charter of the private club as well as the text of NEPA and the NHPA, and concluded that among the goals of the club was the intent to commune with nature and promote social harmony. These goals were also the intent of NEPA and the NHPA. Because the APA requires only that the interest of the plaintiff be "arguably" within the zone of interests protected by the statute, the Club had standing.

The court likewise addressed the question of whether the Club as an organization had standing. An organization has standing to sue if 1) individual members of the organization would have standing, 2) the interests that the organization seeks to protect in the present case are related to the purpose of the organization, and 3) the relief requested by the organization is not a request for damages.(113) The Park Service claimed that the Club did not have organizational standing because the purpose of the suit (alleged by the Park Service to be economic) was not related to the objectives of the Club. The court rejected this contention, citing its previous analysis that the intent of the Club was not purely economic, but social as well. Additionally, the court noted that the Club was requesting injunctive relief, not damages.

Next, the court addressed whether there was a causal connection between the decision of the Park Service to construct a public clubhouse and the harm allegedly suffered by the appellant. The court upheld the district court's finding that the loss of membership suffered by the Club was not related to the construction of the public clubhouse, because the public clubhouse had not yet been built by the time that the Club began to notice a decrease in private membership. Therefore, this injury was not redressable. However, the Ninth Circuit noted that it was probable that the Club would lose more members when the public clubhouse was built, and this potential injury could be traced to the Park Service. This loss of members would be redressable by a favorable ruling at the appellate level.

The court then turned to the adequacy of the Park Service's EA. The plaintiff raised several claims under NEPA, including the Park Service's failure to adequately consider alternatives to the new clubhouse and the timing of the EA's preparation. First, regarding the claim that the Park Service failed to consider other alternatives, the court noted that on several instances the agency had attempted to negotiate with the Club in order to reach a mutually beneficial agreement and that the Park Service had considered renovating the Club. However, both of these options were impractical (because of resistance from the Club itself and monetary and practical considerations), prompting the Park Service's decision to build the public clubhouse. Therefore, the court held that the Park Service had considered a viable range of alternatives in the EA necessary to promote a reasoned decision as required by NEPA's regulations.(114)

Second, the court addressed appellants' claim that the EA had been prepared after the Park Service had decided to build the public clubhouse. The court dispensed with this concern quickly, noting that the examples in the record cited by appellants merely suggested that the Park Service had been reasonably sure that the new construction plan would be approved. According to the court, nothing in NEPA prevents an agency from expressing confidence that its preferred course of action will be adopted.

Finally, the court turned to appellants' contention that the EA was inadequate and that an environmental impact statement should have been prepared to address the effects of constructing a new public clubhouse. In evaluating this claim, the court considered 1) the significance of the impact to the environment that the new clubhouse would have, 2) the impact on historical resources (namely the Presidio clubhouse), 3) the unique characteristics of the area, 4) whether the new construction was highly controversial, 5) whether the effects of the construction were uncertain, and 6) whether the failure to prepare an EIS for the new project would set poor precedent for future development. The court found for the Park Service, holding that the agency had not been arbitrary and capricious in preparing the EA. Thus, an EIS was not required.

The court explained that although the Presidio clubhouse was eligible for placement on the National Register of Historic Places, the EA adequately demonstrated that this eligibility would not be threatened by the construction of the public clubhouse. The court also held that the EA adequately considered the particular ecological and cultural significance of the area. Next, although the public clubhouse was highly controversial among the Club's private membership, the controversy did not warrant an EIS because the Park Service had effectively addressed the concerns raised by the members in the EA. The court rejected the contention that the Park Service did not resolve any uncertainties of the effects of the new clubhouse, because the EA was fairly detailed, outlined the expected impacts from the construction, and effectively resolved any concerns. Finally, the court did not believe that the Park Service's failure to prepare an EIS would set poor precedent for the standards under which an EIS is required. Instead, the new construction was a single project that was unlike other construction and therefore did not threaten to become the standard under which an EIS should be prepared.

After holding that an EIS was not required, the court considered whether the Park Service had unreasonably refused to consider the Club an "interested person" under the NHPA. The plaintiffs claimed that the Park Service did not consult with them when developing its construction plan as required by the NHPA. The Park Service, on the other hand, maintained that it was not required to consult with the Club since it previously found, pursuant to the NHPA, that there would be no adverse impact. The plain meaning of the NHPA regulations only requires consultation with an interested party if the agency makes a determination of an adverse impact as a result of the planned action.(115) Otherwise, the agency is only required to give due consideration to the views of "interested persons." The court concurred with the Park Service and held that no consultation was required.

Finally, the Ninth Circuit examined the issue of whether a litigation affidavit prepared by the Park Service was properly considered by the district court. The Ninth Circuit held that it was. In so holding, the court noted that although courts generally disfavor post hoc rationalizations, exceptions exist. One such exception is when the agency is attempting to elaborate upon its decision and the rationale behind it. Here, the court found that the affidavit had been created not to supplant a lack of information, but rather to clarify the existing record.

11. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998), infra Part V.A.2.

12. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998), infra Part III.A.4.

II. TORTS

1. Miller v. United States, 163 F.3d 591 (9th Cir. 1998).

Plaintiffs brought suit against the federal government under the Federal Tort Claims Act (FTCA)(116) for damages to their cattle ranch caused by a forest fire that originated in a national forest and spread to their property. The district court granted summary judgment for the government, holding that the FTCA's discretionary function exception(117) immunized the government from suit. The Ninth Circuit affirmed.

On August 6, 1990, several lightning-ignited forest fires raged through the Snow Mountain Ranger District of the Ochoco National Forest. At approximately 7:00 p.m., a forest service employee first spotted the fire that damaged the plaintiffs' property. Employees of the United States Forest Service promptly ordered fire suppression equipment, all of which had been committed to other fires. On-the-ground fire suppression efforts did not begin for the fire in question until seventeen to twenty-three hours after the fire was first sighted. The fire joined two other fires and crossed onto the plaintiffs' property on the afternoon of August 9, 1990, damaging plaintiffs' cattle ranch.

The FTCA waives sovereign immunity for tort actions against the federal government arising out of the negligent conduct of federal employees acting within the scope of their employment.(118) However, the statute contains an exception that preserves sovereign immunity when the claim is based on a discretionary act or omission,(119) The court applied a two-part discretionary function test(120) and concluded that the statute's exception barred the plaintiffs' claim.

The first prong of the two-part test required the court to determine whether the actions of the Forest Service employees necessarily involved an element of choice. The court cited as precedent two district court opinions for the proposition that discretionary immunity applies to lightning-induced multiple fire situations.(121) No federal statute, regulation, or policy specifically prescribed a particular course of action for the Forest Service in combating this fire. On the contrary, the Forest Service's Mobilization Guide explicitly allows for discretion in multiple fire situations by stating that "`initial attack response may vary depending on availability of resources.'"(122) The standards and procedures proffered by the appellants "outline[d] certain requirements for fire suppression, [but] they [did] not eliminate discretion because they [did] not tell firefighters how to fight the fire."(123)

The second prong of the two-step analysis required the court to consider whether the Forest Service's actions were susceptible to a policy analysis grounded in social, economic, or political concerns. The court again referred to the two earlier district court opinions, this time for the proposition that decisions regarding the allocation of fire suppression resources are grounded in public policy.(124) The policies and objectives that govern these decisions involve a balancing of considerations such as cost, public safety, firefighter safety, and resource damage. These considerations reflect the type of social, economic, and political concerns that the FTCA's discretionary function exception is designed to protect.

Finally, the Ninth Circuit addressed the appellants' heavy reliance on Rayonier, Inc. v. United States.(125) In that case, heavy winds revived a fire put out by the Forest Service more than a month prior, resulting in destruction of private property. The United States Supreme Court in that case held that the FTCA did not immunize the Forest Service from suit.(126) Rayonier did not include a discussion of the discretionary function exception. At the time it issued the Rayonier opinion, the Court had not yet formulated the two-step analysis approach to discretionary immunity. For these reasons, Rayonier did not control the case at bar, and the court rejected the appellants' reliance on it.

III. NATURAL RESOURCES

A. Fish and Wildlife

1. Foss v. National Marine Fisheries Service, 161 F.3d 584 (9th Cir. 1998).

In 1993, the Secretary of Commerce instituted an Individual Fishing Quota (IFQ) program in an effort to control overfishing of halibut and sablefish resources and to create "a stable market for transferable fishing rights."(127) The plaintiff, a commercial fisherman whose permit application was rejected because it was submitted forty-five days past the regulatory deadline, brought this case against the National Marine Fisheries Service (NMFS), claiming that NMFS violated his procedural due process rights by not providing him with actual notice of the IFQ program. The plaintiff also claimed that NMFS had violated the Administrative Procedure Act (APA)(128) by arbitrarily and capriciously adopting a fixed application deadline without providing actual notice and by not providing an adequate opportunity for notice and comment before promulgating its application deadline. Finally, the plaintiff argued that the court should equitably toll the application deadline for the plaintiff because an employee of the International Pacific Halibut Commission (IPHC) had informed him that NMFS had proposed establishment of the IFQ program but that nothing was imminent, when in fact at that time the final rules establishing the IFQ program were only eleven months from final publication.

The Ninth Circuit first held that for purposes of the Due Process Clause of the Fifth Amendment, the applicant held a protectable property interest in receiving a permit. NMFS's regulations require the agency to grant an IFQ permit to any qualified person who meets objective and explicit regulatory criteria. All applicants who have previously fished for halibut or sablefish during specified years are automatically entitled to quota shares of the allowable catch provided that they comply with the program's procedural requirements. Finally, an IFQ permit can be sold, transferred, leased, inherited, or divided as marital property in a dissolution.

Next, the Ninth Circuit held that NMFS had not violated the applicant's procedural due process rights. The court applied the Matthews v. Eldridge(129) balancing test and determined that NMFS's notification and appeals processes were both constitutionally sound. Under the first factor of the test, the plaintiff clearly had a valuable private property interest in receiving the permit. Under the second factor, the risk of an erroneous deprivation of the plaintiff's interest was low. NMFS set the application period so that it would fall during months when the commercial fishing fleet was not active. NMFS also published formal notices in the Federal Register; sent applications to thousands of potential applicants and resent applications that were returned undelivered; and publicized the IFQ program and its deadlines in industry magazines, news releases, paid advertisements, public service announcements, and information workshops. Additionally, NMFS's appeals procedure, which allowed the applicant a thorough review of his claim, was more than adequate. Under the third factor of the Matthews balancing test, NMFS's procedures, especially its strict application deadline, served its compelling interest in establishing a fixed pool with a stable market value. An actual notice requirement would have placed an unwarranted burden on NMFS.

The Ninth Circuit also held that NMFS had not violated the Administrative Procedure Act. NMFS had not acted arbitrarily and capriciously by adopting the 180-day regulatory application period without actual notice, because there was a rational connection between the agency's procedures and its objectives. Additionally, NMFS provided an adequate opportunity for notice and comment when it published its proposed rule eleven months before adopting its final rules and thirteen months before publishing its application period. After the proposed rules were published, more than seventeen pages of public comments and responses were published in the Federal Register. NMFS's rule announcing the application period complied with the APA because it was in character with the original proposed rules and was a logical outgrowth of the public comments the agency received.

Finally, NMFS properly rejected the appellant's application because it violated the IFQ's regulatory deadline. Equitable tolling should be sparingly used against the government and would not have been appropriate in this situation. The IPHC employee who had informed the plaintiff that the program was not imminent was at worst guilty of excusable neglect, not wrongful conduct. Neither was the plaintiffs change of residence an extraordinary circumstance beyond his control that hindered him from submitting his application in a timely fashion.

2. Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998), cert. denied, 119 S. Ct. 1754 (1999).(130)

The United States Bureau of Reclamation (the Bureau) constructed the Friant dam unit (Friant Dam) of the Central Valley Project on the San Joaquin River in California in 1944. In the late 1940s, the Bureau began entering into forty-year contracts with irrigation and water districts for the supply of water from the newly built dam. All of the contract holders had a right of renewal when their contracts expired.

In 1988, fifteen environmental groups, led by the Natural Resources Defense Council (NRDC), filed suit against the Bureau after it began negotiations for renewal of the first contract to expire. The plaintiffs' amended complaint alleged violations of the Endangered Species Act (ESA),(131) the National Environmental Policy Act (NEPA),(132) section 8 of the Reclamation Act,(133) and section 5937 of the California Fish and Game Code.(134) In 1989, the irrigation and water districts were permitted to intervene.

The Friant Dam adversely affects the endangered Sacramento winter-run chinook salmon and other listed species in the Friant Service Area by impounding the San Joaquin's water and diverting it to irrigation canals, leaving a long stretch of the San Joaquin dry. NRDC claimed that the Bureau had violated ESA section 7(a)(2)(135) by failing to timely consult with the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) on the effects of the contract renewals on salmon and other protected species. The group also claimed that NMFS and FWS had violated ESA section 7(d)(136) by renewing the contracts prior to consultation, constituting an irreversible and irretrievable commitment of resources.

The Ninth Circuit first held that the contract renewals qualified as agency actions under the ESA.(137) Sierra Club v. Babbitt,(138) which prohibits application of the ESA to agency actions that involve no discretionary authority, did not save the Bureau because the federal government retained some discretionary authority during the negotiation process. The federal reclamation laws state that contracts are to be renewed "under stated terms and conditions mutually agreeable to the parties,"(139) that water rights are based on the amount of available project water,(140) and that the Secretary of the Interior has discretion to set rates to cover operation and maintenance costs.(141) Additionally, under O'Neill v. United States,(142) the Bureau retained discretion throughout the life of the contracts to ensure compliance with subsequently enacted federal law. Even though the districts had "a first right ... to a stated share or quantity of the project's available water supply,"(143) the Bureau had discretion to reduce the amount of water available for sale or alter other key contract terms if necessary to comply with the ESA.

After holding that the contract renewals were discretionary agency actions, the Ninth Circuit held that the Bureau had violated the procedural mandate of ESA section 7(a)(2) by failing to request formal consultation with NMFS before renewing the contracts. Once the chinook was listed, the Bureau had independently determined that the contract renewals were not likely to adversely affect the salmon. The Director of NMFS refused to concur in this determination, but stated that formal consultation was not required. The court held that the Bureau had a legal obligation to at least request formal consultation with NMFS. The Bureau had acted arbitrarily and capriciously by relying on NMFS's assurances that consultation was not required.

The Ninth Circuit also held that the Bureau had failed to timely consult with FWS on other endangered species in the vicinity of the Friant Dam. FWS issued a "no jeopardy" biological opinion (BiOp) in October 1991, but by that time, ten of the Friant contracts had already been renewed. The court explained that if the BiOp had been timely, it might have allowed for more flexibility in modifying the contracts, because FWS may make nonbinding conservation recommendations even when it reaches a "no jeopardy" determination.(144) Therefore, the issuance of the BiOp had not mooted NRDC's consultation claim.

Next, the court ruled that by renewing the contracts, the Bureau had violated ESA section 7(d). This section prohibits irreversible or irretrievable commitment of resources that have the effect of foreclosing the formulation or implementation of reasonable and prudent alternative measures that might have arisen during consultation. The allocation of water under the contract renewals clearly constituted such a commitment. A clause in each of the contracts permitting modifications to the contracts in order to comply with federal law did not save the contract renewals from violating section 7(d), because this clause limited conservation-based modifications to minor adjustments only and prohibited adjustments in the mount of water delivered.

One of the contract holders, Orange Cove Irrigation District, claimed that formal consultation was not required for its contract. The Bureau and FWS had informally consulted and mutually agreed that the Orange Cove contract was not likely to adversely affect any protected species. Both the informal consultation and the renewal of the Orange Cove contract occurred before the Chinook salmon was listed, and Orange Cove argued that no agency action had occurred after the listing to require reinitiation of consultation under the ESA. The Ninth Circuit rejected this argument by pointing to a clause in the contract that conditioned the contract's binding effect on validation in state court. The California courts did not validate the contract until February 1990, six months after the listing of the Chinook. The Bureau's delivery of water in the interim constituted discretionary agency action, triggering an affirmative duty for the Bureau to withdraw the Orange Cove contract and initiate consultation with NMFS.

After finding the foregoing ESA violations, the Ninth Circuit affirmed the district court's decision to rescind the contracts under the authority of the APA, which requires courts to set aside agency actions that are arbitrary, capricious, or not in accordance with law.(145) The Ninth Circuit held that the rescission of the contracts had been well within the discretion of the district court. While the Ninth Circuit had held in an earlier case that injunctive relief is the proper remedy for substantial procedural violations of the ESA,(146) that case did not appear to involve an irreversible and irretrievable commitment of resources. Here, by renewing the contracts, the Bureau had eliminated the opportunity to choose other courses of action. Therefore, injunctive relief would be meaningless unless the contracts were also invalidated.

The district court dismissed NRDC's challenge under the ESA to the substantive validity of the BiOp and its claim under NEPA that the Bureau was required to conduct an environmental impact statement (EIS) on the Friant Dam. The district court reasoned that the remedy of contract rescission had afforded NRDC complete relief, thereby rendering these issues moot. Furthermore, Congress had already required the preparation of an EIS on the operations of the Friant Dam in 1992 with the passage of the Central Valley Project Improvement Act (CVPIA).(147) Accordingly, the Ninth Circuit affirmed the district court's holding.

Finally, NRDC claimed that section 8 of the Reclamation Act required the Bureau to comply with section 5937 of the California Fish and Game Code. Under California v. United States,(148) section 8 requires the federal government to comply with state water laws unless a federal statute clearly preempts state law. NRDC argued that section 8 requires the Bureau to comply with section 5937, which requires dam owners to allow sufficient water for fish to pass through a fishway or over, around, or through the dam.(149) The district court concluded that federal law did not prima facie preempt section 5937, and the Ninth Circuit agreed. However, the district court had erred when it had determined that the section 5937 claim lacked ripeness once the contracts were rescinded. The section 5937 claim--if applicable--was directed toward the Bureau, which has an independent duty to comply with section 5937 regardless of any contractual arrangements. The Ninth Circuit reversed and remanded for a determination of whether section 5937 applies to the Friant Dam under state law. If so, the Ninth Circuit directed the lower court to determine whether section 5937 of the California Fish and Game Code is preempted by the CVPIA, which requires the Secretary to dedicate, deliver, and manage specified amounts of water in order to protect, restore, and enhance fish and wildlife.(150)

3. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998), infra Part V.A.2.

4. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998)

The plaintiff, Southwest Center for Biological Diversity (Southwest Center), alleged violations of the Endangered Species Act (ESA)(151) by the United States Bureau of Reclamation (the Bureau). The plaintiff asserted that the Bureau's operations on the Lake Mead delta behind Hoover Dam on the Lower Colorado River caused high water levels that inundated the habitat of the endangered southwestern willow flycatcher (Flycatcher). Southwest claimed that the Bureau had violated ESA section 7(152) by jeopardizing the continued existence of the Flycatcher and section 9(153) by "taking" Flycatchers through habitat modification without a valid incidental take permit.

On appeal, appellants raised two issues. First, Southwest Center sought an injunction requiring the Bureau to draw down the level of Lake Mead in order to preserve Flycatcher habitat in the delta. Second, appellants claimed that the Secretary of the Interior (Secretary), acting through the United States Fish and Wildlife Service (FWS), had violated the "arbitrary and capricious" standard of the Administrative Procedure Act (ARA)(154) when FWS adopted a final reasonable and prudent alternative (RPA) that differed substantially from its draft RPA. In addition, seven southwestern states (the States) claimed that they were indispensable parties and that the suit should have been dismissed for failure to join them.

In upholding the district court's grant of summary judgment for lack of subject matter jurisdiction over the claims against the Bureau, the Ninth Circuit held that Southwest Center had not complied with the notice requirement in the ESA's citizen suit provision. Under this requirement, any citizen bringing suit under the ESA must provide written notice to both the Secretary and the alleged violator at least sixty days prior to filing suit.(155) Three letters sent to the Secretary and the Bureau failed to strictly comply with the notice requirement. Although the letters were timely and explicitly indicated intent to sue under the ESA, they did not sufficiently alert the Secretary and the Bureau to the specific violations that Southwest eventually alleged.

The court explained that the purpose of the notice requirement is to require the provision of sufficient information of a violation so that the alleged violator can identify and attempt to abate the alleged violation. Southwest Center's letters failed to provide such information. One of the letters complained that the Bureau had illegally "taken" listed species on the Lower Colorado River, but none of the letters mentioned the Bureau's operations at Hoover Dam or the Flycatcher habitat at Lake Mead. A fourth letter claimed that the Bureau's operations at Hoover Dam were jeopardizing the continued existence of the Flycatcher, but the appellants conceded that this letter failed to satisfy the notice requirement because it was sent to FWS and not the Secretary or the Bureau.

After it dismissed Southwest Center's complaint against the Bureau, the district court also dismissed as moot the States' motion to establish indispensable party status. The Ninth Circuit affirmed. Although the States had a clear interest in the water level at Lake Mead, their claim became moot as a matter of law once the plaintiffs complaint was dismissed.

Southwest Center's complaint against the Secretary claimed that he, acting through FWS, had violated the APA by acting arbitrarily, capriciously, and contrary to the ESA.(156) The ESA required FWS to suggest reasonable and prudent alternatives not likely to jeopardize the continued existence of the Flycatcher or to result in the destruction or adverse modification of its habitat.(157) FWS adopted a final RPA that, unlike its draft RPA, neither required the Bureau to immediately protect and maintain the Flycatcher's habitat at Lake Mead nor to maintain substitute habitat at Roosevelt Lake, Arizona. FWS omitted these measures from its final RPA because the Bureau alleged that it lacked discretion to reduce the level of Lake Mead. Southwest Center claimed that the Secretary had improperly rejected the draft RPA because he had failed to independently review the Bureau's opinion that it lacked such discretion.

The district court repudiated Southwest Center's argument, holding that the Secretary's decision not to adopt the draft RPA was not arbitrary or capricious, and the Ninth Circuit affirmed. In deciding whether the Secretary has acted arbitrarily and capriciously or has abused his discretion in adopting an RPA, a court should focus only on the standards and requirements of the ESA and whether the final RPA meets them. The ESA required the Secretary to adopt an RPA that would protect the Flycatcher from jeopardy and that could be implemented, not necessarily the RPA that was originally favored or that would most effectively protect the species. In addition, the ESA did not require the Secretary to explain why one RPA was chosen over another, to base his decision solely on apolitical factors, or to maintain his opinion that preserving the Lake Mead habitat was necessary to the Flycatcher's survival. Finally, the court noted that Southwest Center had not presented any convincing evidence that the final RPA would fail to sufficiently protect the Flycatcher.

5. United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999).

In this case, the Ninth Circuit upheld Chad McKittrick's conviction for violating both the Endangered Species Act (ESA or Act)(158) and the Lacey Act(159) when he killed a gray wolf and transported its head and hide to his home. Specifically, the government charged McKittrick with the following three counts: 1) taking the wolf in violation of ESA sections 9(a)(1)(G)(160) and 11(b)(1)(161) and 50 C.F.R. section 17.84(i)(3), 2)possessing the wolf in violation of ESA sections 9(a)(1)(G) and 11(b)(1) and 50 C.F.R. section 17.84(i)(5), and 3) transporting the wolf in violation of the Lacey Act.(162) A jury convicted McKittrick in a trial before a magistrate judge, and the district court affirmed this conviction. While the court upheld McKittrick's conviction on each of these counts, it remanded the case to the magistrate judge to reconsider his sentence.

McKittrick raised five arguments on appeal. First, he asserted that the ESA did not protect the wolf that he killed. Second, he contended that the separate counts charging him with both taking and possessing the wolf were duplicative. He argued that he had not knowingly killed the wolf because he had not been aware of what he was shooting. In addition, McKittrick felt that the trial court had erred in its jury instruction regarding the incidental take exception to the ESA. Finally, he asserted that the trial court had erroneously failed to reduce his sentence under the sentencing guidelines by two levels when he accepted responsibility for his actions.

McKittrick argued that the United States Fish and Wildlife Service (FWS) had failed to follow appropriate procedures when it created an experimental population of gray wolves in Yellowstone. Specifically, he contended that 1) FWS erred when it used animals from an unlisted population to create the experimental population, 2) the experimental population was not valid because it was not "wholly separate geographically" from naturally occurring wolves in the area, 3) the Secretary of the Interior (Secretary) did not make findings required by ESA section 4(d),(163) and 4) FWS's efforts to reintroduce wolves into Yellowstone represented a poor allocation of resources in violation of ESA section 4(f).(164) Because these determinations involved FWS's interpretations of both the ESA and its own regulations, the Ninth Circuit accorded Chevron(165) deference to the agency's decisions.

McKittrick asserted that the ESA required FWS to use only endangered wolves when it created an experimental population in an attempt to restore viable numbers of gray wolves to Yellowstone. He argued that because the wolves in the experimental population in Yellowstone had come from Canada, where they were not considered endangered, the experimental population did not meet the ESA's requirements and therefore did not merit protection under that Act. The Ninth Circuit rejected this interpretation of the ESA, stating that "gray wolves are protected by the ESA based on where they are found, not where they originate."(166) Thus, when the wolves had crossed the border into Yellowstone, they had become endangered for purposes of the ESA.

In addition, the court noted that the appellant's interpretation of the ESA violated its spirit. Under his interpretation, the Secretary would be forced to create an experimental population by further depleting populations of animals already at dangerously low levels, thereby circumventing the ESA's essential purpose of conserving species at all costs. The court adopted FWS's interpretation of ESA section 10(j)(167) and determined that the experimental population was valid.

The court then rejected McKittrick's interpretation of ESA section 10(j)(1), which provides that a population qualifies as experimental under the ESA "only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species."(168) The appellant argued that sporadic sightings of isolated wolves in the area deprived the introduced population of experimental status, because the population was not geographically isolated from indigenous wolves. The court, however, read the statute to apply only to populations of indigenous gray wolves, noting that the Federal Register defines a population as consisting of "at least two breeding pairs of gray wolves."(169) Thus, the mere presence of individual indigenous wolves was not enough to deprive the introduced population of experimental status under the ESA. Judge O'Scannlain suggested in a concurring opinion that the court need only look to the text of the ESA in order to resolve this issue. He read the text to support his conclusion that "[al single straggler does not a population make."(170)

The court characterized McKittrick's arguments regarding potential violations of sections 4(d) and 4(f) of the ESA as "meritless."(171) McKittrick claimed that the Secretary had failed to comply with section 4(d) because he had failed to recite the words "necessary and advisable" in the special rules that he had promulgated that applied to the establishment of experimental gray wolf populations. He also claimed that because gray wolves are plentiful in both Alaska and Canada, restoration efforts in Yellowstone represented a poor allocation of resources and thus violated section 4(f) of the ESA. The court noted that the "necessary and proper" language required by section 4(d) could be found in the Code of Federal Regulations,(172) and that the Secretary was entitled to discretion in determining how to allocate species conservation resources. Moreover, the court added that the "presence of healthy wolf populations in Canada and Alaska does not, in any event, make the recovery of U.S. populations any less crucial."(173)

The Ninth Circuit next determined that the government had not violated McKittrick's constitutional fights when it charged him with both killing and possessing the endangered wolf in separate counts. McKittrick argued that the indictment was duplicative and thus violated his right to be free from double jeopardy under the United States Constitution.(174) The court, however, concluded that the indictment was not duplicative because each separately charged violation "`requires proof of an additional fact which the other does not."(175) The first count required proof that McKittrick took a wolf, and the second did not. The second count, on the other hand, required proof that McKittrick possessed the wolf, which the first count did not. Thus, the indictment did not violate McKittrick's fights under the double jeopardy clause.

McKittrick next unsuccessfully asserted that the district court had erred when it had instructed the jury. First, he challenged the court's instructions regarding the requisite mens rea to find him guilty of killing the wolf in violation of the ESA. He argued that the ESA required the government to prove that he knew he was shooting a wolf in order to establish his guilt. The Ninth Circuit, however, upheld the district court's instructions and held that the ESA violation did not require this level of culpability, because the Act is a general intent offense. Thus, the jury needed only to find that McKittrick knowingly killed an animal--and that animal turned out to be a protected gray wolf.

The appellant also argued that the court had erred in explaining the "incidental take" exception to the jury, and that this error had shifted the burden of proof from the government to him to prove whether or not the exception applied. The Ninth Circuit dismissed the initial assertion by stating that the district court's instruction regarding the exception precisely followed the language of the regulation defining it. And while the issue of who had the burden of proof to establish the applicability of the incidental take exception under the ESA was not necessarily clear to the Ninth Circuit, the court nevertheless determined that the magistrate judge's instructions clearly placed the burden on the government.

The Ninth Circuit did, however, find merit in at least one of the appellant's arguments. McKittrick argued that he should have received a two-level sentencing departure for accepting responsibility for his conduct. The Ninth Circuit stated that McKittrick was entitled to challenge the mens rea requirement of the ESA without sacrificing his eligibility for this reduction. Because the language in the presentence report was ambiguous as to whether or not the magistrate judge denied the reduction based on an impermissible ground, the Ninth Circuit remanded the case for the magistrate to reconsider his sentencing determination.

6. United States v. Senchenko, 133 F.3d 1153 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998).(176)

In this case, the Ninth Circuit affirmed the conviction of Nikolay Senchenko for a felony violation of the Lacey Act.(177) The government sought to prove that Senchenko had "knowingly engaged in conduct involving an intent to sell wildlife with a market value in excess of $350 ... by transporting said wildlife knowing it was taken in violation of United States law or regulation."(178) The jury in the district court found that Senchenko had violated a federal regulation that criminalizes taking wildlife in violation of any state or federal law or regulation when he used a snare to take bears. Because a Washington state regulation prohibits taking bears in this manner,(179) and because the jury found that Senchenko had intended to transport the wildlife knowing that it was taken in violation of a United States regulation, Senchenko's conduct had violated the Lacey Act.

Senchenko challenged his conviction on several grounds. First, he argued that there was no evidence that he had sold or intended to sell bear parts. Second, Senchenko raised objections as to the government's methods of establishing that the bear parts at issue had met the jurisdictional requirements for charging a felony under the Lacey Act. Third, he asserted that the federal regulation that the government had used as a predicate for the Lacey Act violation involves an unconstitutional delegation of legislative power. Fourth, Senchenko challenged the validity of the search of his home and car. Finally, the appellant argued that the district court erred in permitting the government to ask his wife about his employment status on cross-examination. The Ninth Circuit rejected all of these assertions and affirmed Senchenko's conviction.

Senchenko first argued that the government had not established that he had ever sold or intended to sell bear parts. He also asserted that the prosecution had made improper analogies to possession of narcotics in its closing statement that had invited the jury to infer from the volume of bear parts that he had intended to sell them. The Ninth Circuit considered both the number of snares that Senchenko owned and the amount of bear gall bladders he possessed in determining that there had indeed been sufficient proof to permit the jury to infer commercial intent. In addition, the court suggested that because 1) the prosecutor had explicitly told the jury that Senchenko was not involved with drugs, 2) the only mention of narcotics had occurred during the prosecution's closing argument, and 3) the court had provided a limiting instruction, the comparison to narcotics did not appear inappropriate. Moreover, the Ninth Circuit determined that any error would have been harmless, because Senchenko's wife had testified as to the quantities required by the family's personal use of gall bladders, and that Senchenko had possessed quantities that exceeded the family's needs.

Second, Senchenko argued that the prosecution did not appropriately establish the value of the bear parts that he had allegedly taken illegally. The appellant offered the following three contentions to support this claim: 1) the court had improperly allowed the government to aggregate the value of the bear parts found at his home and in his car, 2) the government's expert had not been competent to establish the value of the gall bladders, and 3) the government improperly used the value of the dried gall bladders rather than the value of the parts as they had existed when he took them. The court dismissed Senchenko's first contention by rejecting his interpretation of the Lacey Act. The appellant read the Lacey Act to require the government to establish the value of illegally taken wildlife involved in "a single act of transportation."(180) The court, however, determined that transportation is merely one of several types of conduct that the Lacey Act criminalizes. The statute, according to the Ninth Circuit, focuses on conduct that involves commercial activity. The district court could properly consider Senchenko's conduct of setting snares, harvesting trapped bears, and taking the parts to his house as "`a single continuing scheme'"(181) when determining the value of the illegally taken bear parts, because all of these closely related acts involve commercial activity.

Third, the Ninth Circuit determined that the expert whom the government had used to establish the market value of bear parts in the region had been qualified to testify under Federal Rule of Evidence 702(182) by virtue of his experience and training. The expert had been a state wildlife officer for twenty-four years and had investigated illegal sales of wildlife for seven years. Because the expert met the threshold requirements of Rule 702, the court stated that any objections that Senchenko might have raised related to the weight of the witness's testimony rather than to its admissibility.

Fourth, the court also rejected Senchenko's contention regarding the valuation of the seized bear parts. Citing United States v. Seaman,(183) Senchenko argued that the "government [had] improperly used the value of the finished goods, i.e. the dried gall bladders, rather than the value of the raw materials, i.e. the wet gall bladders, at the time'"(184) that he had initially taken the gall bladders in order to establish the jurisdictional amount. The Ninth Circuit, however, distinguished Seaman from Senchenko's situation. Seaman involved the improper use of the valuation of firewood that had been chopped, packaged, and seasoned rather than the value of the trees in the condition in which the defendant had taken them from government property. Thus, the Ninth Circuit concluded that Seaman "st[ood] for the proposition that the government cannot consider value added in establishing the jurisdictional amount."(185) The court found a qualitative difference between processed firewood and gall bladders that a person had merely allowed to dry. Thus, the government had acted properly when it used the value of the dried gall bladders to establish the jurisdictional amount necessary for a felony conviction under the Lacey Act.

Senchenko also asserted that the court should have dismissed his indictment because it failed to charge a federal offense. According to Senchenko, the underlying state regulation that served as a predicate for the Lacey Act violation violated Article I of the Constitution. Because the regulation allowed a violation of a state law to become the basis of a federal offense, Senchenko argued that it presented an unconstitutional delegation of legislative power to the states by Congress. The Ninth Circuit summarily rejected this argument, stating only that it was "without merit, having been rejected by the courts of appeals applying the Lacey Act."(186)

The Ninth Circuit accorded some merit to Senchenko's argument that the officers had erred when they submitted an affidavit for a warrant to search his home and car, but the court ultimately determined that these errors did not warrant reversal of his conviction. While the affidavit stated that the officers arrested Senchenko as he was resetting a snare, they had actually arrested him at the trailhead, some distance from the snare. The district court had, however, found that the officers did not act "deliberately or recklessly," and the Ninth Circuit upheld this determination.(187) Quoting Franks v. Delaware,(188) the Ninth Circuit stated that the threshold test for determining whether to look at evidence other than the erroneous statements in the affidavit is whether the affiants made the errors either "`knowingly and intentionally, or with reckless disregard for the truth.'"(189) Because the challenged statements in the affidavit here were neither knowingly nor recklessly false, the court did not inquire further into the matter.

Senchenko's final argument challenged the scope of the government's cross-examination of his wife. He argued that the court should not have permitted the government to question his wife about his employment status. The Ninth Circuit found that the district court had not abused its discretion in allowing this inquiry, because Senchenko's employment status was relevant to support an inference that he had intended to sell the bear parts that he had illegally taken.

B. Forests

1. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998), cert. denied, 119 S. Ct. 2337 (1999).(190)

In August 1996, wildfires raged through the Umatilla National Forest in northeast Oregon. The largest of these fires (and the largest recorded fire in Umatilla National Forest history), the Big Tower Fire, burned over fifty-one thousand acres of forestland surrounding the John Day Basin, the largest river basin in Oregon that is free from impoundments. Soon after the fire, the United States Forest Service (USFS or Service) prepared a fire recovery strategy, which included five salvage timber sales. The largest project, the Big Tower project, included three timber sales that would result in the harvest of approximately thirty million board feet of timber and require eighteen miles of new or reconstructed roads. In July, the Forest Service prepared an environmental assessment (EA) for Big Tower, and issued a decision notice and finding of no significant impact (DN/FONSI) on September 8, 1997.

Blue Mountains Biodiversity Project (BMBP) and other conservation groups administratively appealed the decision, but in December 1997, an administrative appeals officer upheld the Service's decision to implement the Big Tower project. BMBP moved for summary judgment in district court, but the lower court denied this motion as well as a motion for an injunction on July 24, 1998. Logging subsequently began in August, and BMBP appealed to the Ninth Circuit.

On appeal, the appellants raised two main issues. They claimed that 1) the National Environmental Policy Act (NEPA)(191) required the preparation of an environmental impact statement (EIS) for the Big Tower project, and 2) that USFS had failed to assess the cumulative impacts of Big Tower and other salvage timber sales in the area. The court agreed and required the Forest Service to prepare an EIS for the project.

First, the court addressed the claim that USFS should have prepared an EIS. The court noted that the threshold question for whether an EIS is required is whether there are significant questions regarding the impacts of the proposed action, and that the court must apply the "hard look" standard of review in assessing the agency's decision. Significant questions are present when the proposed action is highly controversial or has unknown effects.(192) In this case there was a "substantial dispute ... concerning the likelihood and significance of adverse environmental effects from post-fire logging and road construction."(193) Several factors led the court to determine that USFS should have prepared an EIS.

For example, prior to the Big Tower fires, the Regional Forest Supervisor instructed USFS to consider in any postfire analysis the "Beschta Report," an independent report that detailed the adverse effects of salvage logging on recently burned forestland. The Forest Service, however, failed to utilize the report on the Umatilla National Forest. In addition, the Service did not address the impact that sediment generated from timber harvest would have on fisheries in the project area. The agency claimed that the harvest would generate less sediment than the fire had generated, but the agency had no data to support this conclusion because its "data collection box overloaded with sediment."(194)

The court also noted that the EA did not include specific locations for the proposed roads or the number of stream crossings contemplated by the Service. The Ninth Circuit held that the lack of a discussion of sitespecific impacts does "`not constitute a hard look absent a justification regarding why more definitive information could not be provided.'"(195) Moreover, the court explained that the mitigation measures in the EA were inadequate to compensate for the adverse effects of the logging because they were merely best management practices, suggesting that such practices do not constitute a "hard look" under NEPA.

In defense, the Forest Service argued that an EIS for the Big Tower project was unnecessary because the EA "tiered" to the Umatilla Land Resource and Management Plan (Umatilla Forest Plan). Although NEPA allows tiering of a more specific document to a general programmatic document in order to avoid repetitive documentation,(196) the court noted that the scope of the Umatilla Forest Plan did not deal with the site-specific impacts of timber harvest on the severely burned land within the Big Tower project area. Consequently, the Service could not tier the Big Tower EA to the Umatilla Forest Plan.

Finally, the court addressed the appellants' claim that the EA was inadequate because it did not address the cumulative impacts of the Big Tower project in combination with other timber sales in the vicinity. The Ninth Circuit agreed. It stated that although USFS prepared a Tower Fire recovery strategy document (which identified five timber sales) as well as the Big Tower EA, "no document explores the collective impact of these projects."(197) Since the Service proposed the five projects at the same time and the projects were all similar in nature and scope, a "single EIS ... was required to address the cumulative effects of these proposed sales."(198)

In dicta, the court also noted that the appellants' claims were not moot, even though a majority of the timber had already been harvested from the Big Tower project. Rather, relief was still possible because "trees remain standing in the Big Tower area and the Forest Service had not yet acted on its remaining proposed sales in the Tower Fire area."(199) The court therefore affirmed its injunction against further logging in the area.

2. Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998).(200)

In 1991, the United States Forest Service (USFS) and the Alaska Pulp Corporation developed a timber harvest schedule for the Chatham area of the Tongass National Forest in southeast Alaska. The agency and the corporation entered into a long-term contract under which USFS would supply approximately one hundred million board feet (MMbf) of timber a year to the corporation for four years.

In 1992, USFS issued a public notice that it intended to prepare an environmental impact statement (EIS) for the Ushk Bay timber sale pursuant to the National Environmental Policy Act (NEPA).(201) The final EIS, published in 1994, stated that the purpose and need of the project was to supply timber to fulfill the requirements of the timber harvest schedule. After accepting public comments, USFS issued a record of decision (ROD) that chose an action alternative over other alternatives, including a "no action" alternative, and released the timber for harvest pending an administrative appeal period.

The plaintiffs filed an administrative appeal with USFS. They claimed that USFS had violated NEPA when it 1) failed to prepare an EIS in 1991 when the harvest schedule was designed, and 2) prepared an inadequate EIS in 1994. The plaintiffs also claimed that USFS had violated the National Forest Management Act (NFMA)(202) because the agency failed to prepare the "area analysis"

required by the Tongass Land Management Plan (Tongass Forest Plan) prior to preparing the 1994 EIS. The administrative appeal was denied, and the plaintiffs filed suit in federal district court in Alaska. The district court held for USFS on the NEPA claims, but for the plaintiffs on the NFMA claims, and enjoined the sale until USFS complied with the Forest Plan. USFS appealed.

The Ninth Circuit first addressed the NEPA claims. Appellants claimed that USFS had violated NEPA by failing to prepare an EIS in 1991 when the harvest schedule was developed. In addressing this issue, the court noted that the decision not to prepare a 1991 EIS was valid if that decision was reasonable. A decision is "reasonable" if an agency takes a "hard look" at the issue and concludes that an EIS is unnecessary.(203) On the other hand, an EIS is required when an agency makes an "irreversible and irretrievable commitment of the availability of resources."(204)

Here, the agency had not made such a commitment of resources because the schedule "'reserve[d] to the government the absolute right' to prevent the use of the resources in question."(205) Important to the court was whether USFS could still exercise some control over the harvest schedule after it adopted the schedule. Because the agency could refuse to offer the full one hundred MMbf limit of the schedule or could direct where future timber harvest would take place on the Tongass, the court held that an irreversible and irretrievable commitment of resources had not occurred. If USFS had surrendered absolute authority to control the activity in the area covered by the harvest schedule, then such a commitment would have occurred.

The court then addressed appellants' second NEPA argument--that the 1994 EIS was inadequate. Specifically, plaintiffs claimed that the EIS was inadequate because USFS had failed to meaningfully consider the no action alternative. The court rejected this argument and explained that the mere fact that the description of the no action alternative was shorter than the description of the action alternatives did not mean that USFS did not consider it. Furthermore, the no action alternative did not meet the purpose and need of the timber sale, which was to provide timber to fulfill the agency's obligations under the harvest schedule.

Agencies, the court elaborated, are not bound to consider alternatives that will not meet the purpose and need of a project. Because the purpose and need of the project was reasonable, USFS was justified in giving the no action alternative less analysis than the action alternatives. As a result, the agency complied with NEPA even though it did not adopt the no action alternative and its explanation for rejection lacked detail.

Finally, the court turned to the NFMA claim--that the agency failed to remain consistent with the Tongass Forest Plan when it designed the Ushk Bay sale. First, the court pointed out that NFMA requires site-specific projects to remain consistent with area forest plans, and that NEPA allows site-specific plans to "tier" to such plans. Relying on Neighbors of Cuddy Mountain v. United States Forest Service,(206) the court held that USFS violated NFMA when it prepared the Ushk Bay sale without first conducting an "area analysis" as the Forest Plan required. The Forest Plan indicated that an area analysis must take place before USFS planned any site-specific projects in that area, but the agency did not do so before issuing the 1994 EIS. The agency claimed that the analysis in the EIS was sufficient to fulfill the Forest Plan's requirements, and in the alternative, the ROD for the 1994 EIS specifically removed from the Forest Plan the requirement for an area analysis.(207)

The court dismissed both contentions. First, it pointed out that the Forest Plan specifically stated that area analyses were to precede any sitespecific management activities, and that in light of the fact that USFS had not drafted an area analysis, the agency could not tier the 1994 EIS to a nonexistent document. Although the Service argued that it was entitled to Chevron(208) deference in interpreting NEPA's tiering requirements as implemented in the Forest Plan, the court noted that this type of deference does not apply when a statute is unambiguous. Because the Forest Plan--which referenced NEPA--clearly indicated that area analyses must precede site-specific projects, deference was not due.

Finally, the court reasoned that USFS could not conform the Forest Plan to its management plans after the Forest Plan had been designed. Although USFS claimed that NFMA allows the agency to amend the Forest Plan as necessary, the court explained that an agency has the "authority to change the legal consequences of completed acts only ... [if] Congress conveys such authority in an `express statutory grant.'"(209) NFMA does not grant such authority to USFS, and to suggest otherwise was the type of post hoc rationalization that NEPA prohibits.

3. Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998).(210)

This case arose out of the preparation of two timber sales in the Miners Creek and West Camas Creek watersheds of the Targhee National Forest in southeastern Idaho by the United States Forest Service (USFS or Service). USFS prepared an environmental assessment (EA) for the Miners Creek timber sale, which proposed to harvest 3.1 million board feet (MMbf) of timber from the Miners Creek and West Camas Creek watersheds. On June 30, 1993, the Forest Supervisor issued a decision notice and finding of no significant impact (DN/FONSI) approving the sale. Plaintiffs Idaho Sporting Congress (ISC) opposed and administratively appealed the sale, but the Regional Forester nonetheless approved the sale on April 29, 1994. The Service subsequently proposed a second timber sale, the Camas Creek timber sale, in July 1996. USFS proposed to sell 7.2 MMbf from the West Camas Creek watershed, the same watershed in which it proposed the Miners Creek sale. USFS prepared another EA for the Camas Creek sale, but did not supplement the Miners Creek EA to reflect the Camas Creek sale.

The plaintiffs argued that USFS violated the requirements of the National Environmental Policy Act (NEPA)(211) with respect to water quality, fisheries, and cumulative impacts by offering the Camas Creek sale without preparing an environmental impact statement (EIS) for the Miners Creek and Camas Creek timber sales. The plaintiffs also alleged violations of Idaho water quality standards and the National Forest Management Act (NFMA).(212) The plaintiffs sued USFS in the Idaho District Court and moved for summary judgment on their claims. USFS cross-moved for summary judgement, and the district court granted this motion. Plaintiffs then appealed to the Ninth Circuit.

First, appellants alleged that USFS had violated NEPA by failing to address the impact that the proposed timber sales would have on the water quality of Miners and Camas Creeks. In preparing the Miners Creek sale, USFS relied on a 1990 internal report that did not conduct site-specific scientific analysis, and USFS did not make the report available to the public for review at the time it proposed the sale. USFS claimed that this report was bolstered by a 1985 report prepared by the same expert, which showed that logging in the watershed had not impaired water quality.

The court rejected this argument, holding that NEPA required USFS to release the 1990 report to the public for comment, as well as the baseline data on which the report was based. Furthermore, because the 1985 report was different in focus and scope than the 1990 report, the Service's decision to implement the sales based on these reports was arbitrary and capricious under the Administrative Procedure Act (APA).(213) Additionally, USFS argued that the mitigation measures proposed for the two timber sales would compensate for any adverse effects from the timber harvest. The court rejected this argument as well, holding that a "mere listing" of mitigation measures did not constitute the "reasoned decision required by NEPA."(214) The court directed USFS to prepare an EIS for the Miners and Camas Creek timber sales and investigate the impacts that those sales could have on water quality.

The appellants next alleged that USFS violated NEPA's disclosure requirements when the agency failed to survey and disclose the results of surveys for trout within the planning area for the Miners and Camas Creek timber sales. USFS had designated trout within the Targhee National Forest as a management indicator species (MIS) pursuant to regulations promulgated under NFMA, and was therefore required to survey for the species. After reviewing the Miners Creek EA, the court held that the service failed to make a full disclosure of the impacts to trout, and that an adequate study and disclosure of the impacts to aquatic management indicator species as a result of the sales should be made in the forthcoming EIS.

Third, appellants maintained that the Service's cumulative impacts analysis for the two timber sales was inadequate. Specifically, ISC claimed that a supplemental EA or EIS was required to address the impacts of the Miners Creek sale on the Camas Creek sale. USFS claimed that although the Miners Creek EA did not address the impacts from the Camas Creek sale, the Camas Creek EA had in fact addressed the effects of the Miners Creek timber sale. The court noted that the standard for preparing a supplemental EA or EIS is whether "significant changes in the proposed action" has occurred.(215) Because no such changes had occurred, the Miners Creek EA adequately addressed the cumulative effects from the two sales. Although no EIS was required to address the cumulative impacts of the two sales, the court noted in dicta that this analysis was meager and that additional analysis should appear in the EIS.

Fourth, the court addressed ISC's claims that USFS was required to abide by water quality standards that the appellants believed are more stringent than the federal Clean Water Act (CWA)(216) The Idaho Code contains an antidegradation provision that forbids any deterioration of water quality,(217) and the Clean Water Act requires federal agencies to comply with water quality standards set by the states.(218) The state code contains two contradictory sections: one section provides that no action should deprive the water body of its existing instream uses (the antidegradation provision),(219) but another section explicitly states that the state code is not to impose stricter water quality standards than the Clean Water Act already imposes.(220)

Because this was an issue of first impression, the court looked to the plain meaning of the statute versus its legislative intent in order to determine which provision would control. ISC urged that the plain meaning of the statute should control, which would require USFS to demonstrate that the timber sales would have no effect on the water quality in the watershed. The court rejected this contention and held instead that the legislative intent controlled, and that USFS was only required to meet the standards set forth in the Clean Water Act. However, because USFS had not yet conducted adequate studies on the water quality in the watershed, the court declined to determine whether Idaho's antidegradation policy had been violated by the degradation of water quality in the area stemming from the timber harvest.

Finally, the court addressed the appellants' NFMA claims. Specifically, appellants alleged that USFS had violated NFMA when it 1) failed to monitor the population trends of the trout MIS in relation to its habitat,(221) and 2) failed to monitor the trout as required by the Targhee National Forest Land Management Plan (TNFLMP). First, the court deferred to USFS's interpretation of NFMA's requirements and noted that it was not arbitrary and capricious to use the amount of habitat for a given species as a proxy for actual populations of that species. When USFS prepared the EIS, the court explained, the agency would be able to account for the effects of timber harvest on trout by determining the amount of habitat--rather than the number of individuals--affected by the harvest.

Second, the court rejected the appellants' argument that USFS had violated NFMA's consistency requirements(222) when the agency failed to survey for trout populations, as required by the TNFLMP. The court again deferred to USFS's interpretation of the TNFLMP, noting that the TNFLMP allows for monitoring of habitat quantity as well as quality, and it was within USFS's discretion to decide how best to achieve this requirement. The court directed USFS to address the suitability of trout habitat in the forthcoming EIS.

4. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372 (9th Cir. 1998).(223)

This suit arose out of a decision by the United States Forest Service (USFS or Service) to offer for harvest the Grade/Dukes Timber Sale in the Payette National Forest in Idaho. In 1990, USFS prepared an environmental impact statement (EIS) for the Grade/Dukes timber sale, which would harvest 18.8 million board feet (MMbf) of timber from the Cuddy Mountain Roadless Area in the Payette National Forest. The Forest Supervisor approved the sale on August 6, 1991 in a decision notice and finding of no significant impact (DN/FONSI). Environmental plaintiffs, Neighbors of Cuddy Mountain and Idaho Sporting Congress, administratively appealed the sale to the Deputy Regional Forester, who reversed the decision of the Forest Supervisor and recommended that the EIS be supplemented with additional information.

In 1994, a supplemental environmental impact statement (SEIS) was prepared for the Grade/Dukes Timber Sale. A second DN/FONSI was issued for the sale in Februaw 1994. Plaintiffs again administratively appealed the decision and were notified in February 1995 that their appeal to the Regional Forester had been denied. Meanwhile, USFS sold the Grade/ Dukes timber contract to Boise Cascade, which began timber harvest in August 1994.

Plaintiffs brought an action in the Idaho District Court in December 1996, alleging violations of the National Environmental Policy Act (NEPA)(224) and the National Forest Management Act (NFMA).(225) The district court allowed Boise Cascade to intervene as a matter of right as the purchaser of the timber sale, and both the plaintiffs and the defendants (USFS and Boise Cascade) moved for summary judgement. The district court granted the motion in favor of USFS and the intervenor, and the plaintiffs appealed.

On appeal, the appellants alleged that USFS had violated NFMA when it 1) prepared a timber sale that was inconsistent with the Payette Land and Resource Management Plan (PLRMP), 2) issued an EIS that inadequately addressed the cumulative affect of several other timber sales near the Grade/Dukes area, and 3) proposed inadequate mitigation measures to compensate for adverse environmental impacts as a result of the timber sale. USFS claimed in defense that the doctrine of laches barred appellants' cause of action.

First, the court addressed the appellants' claim that USFS had violated NFMA when the agency prepared the EIS for the Grade/Dukes timber sale because the sale was inconsistent with the PLRMP. Specifically, the appellants claimed that the Grade/Dukes EIS violated NFMA's requirement that site-specific plans (such as the EIS) remain consistent with area forest plans (such as the PLRMP)(226) because the EIS did not allow for the retention of the amount of old growth habitat mandated by the PLRMP. As required by NFMA, USFS selected a group of management indicator species (MIS) that used old growth habitat. In this case, the MIS at issue was the pileated woodpecker. Ideally, by tracking the amount of old growth habitat remaining in the area, USFS could monitor the population of the woodpecker.

In holding that the Grade/Dukes sale was inconsistent with the PLRMP, the appellate court explained that USFS failed to analyze the sale's impacts on the woodpecker's habitat as required by the PLRMP. Although the EIS addressed how much old growth would be left in the planning area after timber harvest, it did not address how much old growth would be left in the home range of the woodpecker; the court noted that these two areas were quite different both in theory and in practice.

Second, the court explained that USFS's inadequate analysis of the effects of the sale on woodpecker habitat contributed to the court's finding that USFS's cumulative impacts analysis was likewise inadequate. Plaintiffs alleged that the Grade/Dukes EIS was incomplete because it failed to consider the cumulative impacts from three other timber sales in the Cuddy Mountain area, as NEPA's regulations require.(227) The Grade/ Dukes EIS only stated that future timber harvest could be expected to reduce the amount of woodpecker habitat, but that the extent of that habitat loss was unknown; it did not make specific reference to the three sales already planned in the vicinity of the Grade/Dukes sale. In pointing out this flaw, the court noted that the Service did not include scientific data that showed that it had taken a "hard look" at the issue as required by NEPA's regulations(228) and then explained that postponing such an analysis to some indefinite point in the future was improper.

Third, the court turned to appellants' argument that the mitigation measures proposed by USFS for the Grade/Dukes sale were insufficient and therefore in violation of NEPA. The appellants were especially concerned about the mitigation measures proposed to obviate the effects on redband trout, another MIS. In agreeing with the appellants that the mitigation measures were inadequate to compensate for the effects of the sale, the court explained that the EIS contained only a "perfunctory description" of the mitigating measures and that was inconsistent with the hard look standard required by NEPA.(229) Furthermore, the court noted that because the measures in the EIS were not site-specific, it was unclear whether they were required under the timber sale contract. Moreover, there was no indication that if implemented the measures would be effective.

Finally, the court turned to the argument by the Service that appellants' cause of action was barred by the equitable doctrine of laches. The court pointed out that this doctrine is to be used only "sparingly in environmental cases because the plaintiff is not the only party to suffer harm by alleged environmental damage," and this case was not one of the rare instances where the doctrine was an appropriate defense.(230) Ultimately, regardless of whether the plaintiffs had been diligent in bringing the present case, USFS failed to show prejudice in the delay or the proper kind of harm (i.e., economic harm) that is usually incurred when the defense of laches is raised. Indeed, supplementing the EIS after the present case would not prejudice USFS, because it should have conducted such an analysis before the EIS was prepared.

5. Oregon Natural Resources Council Action v. United States Bureau of Reclamation, 150 F.3d 1132 (9th Cir. 1998).

Environmental plaintiffs Oregon Natural Resources Council Action and others (ONRC Action) brought suit against the Bureau of Land Management (BLM), seeking to enjoin the agency from carrying out management activities before it completed its Eastside Ecosystem Management Strategy (Eastside EIS). The Eastside EIS addresses public lands east of the Cascades and is designed to complement President Clinton's Northwest Forest Plan, which pertains to federal lands west of the Cascades.

ONRC Action filed a petition with request for stay with BLM that requested that the agency refrain from implementing management activities on all land affected by the Eastside EIS. The agency responded with a letter to the environmentalists stating that any objections to management activities had to be made on a site-specific basis. In the interim, BLM would continue projects under existing resource management plans (RMPs). ONRC Action and other environmental groups filed a petition with the district court, which it dismissed for lack of jurisdiction. The lower court held that the plaintiffs' claims were barred because there had been no "final agency action" as defined by the Administrative Procedure Act (APA).(231) On appeal, ONRC Action raised the following two issues: 1) whether the APA conferred jurisdiction on the court, and 2) whether the National Environmental Policy Act (NEPA)(232) and the Federal Land Policy Management Act (FLPMA)(233) imposed a duty on BLM to refrain from implementing management activities while the Eastside EIS was in preparation. The court answered both queries in the negative.

ONRC Action first argued that BLM's refusal to halt management activities constituted a final agency action under the APA--even though the scale of the Eastside EIS was regional and not local. In rejecting these arguments, the court initially noted that the case law relied upon by ONRC Action pertained to situations where the lack of agency action occurred after reasoned consideration by the agency. In the present case, BLM had not considered the Eastside EIS and its effects on the ecosystems in question because the document was not final and therefore had no bearing on existing management projects. Furthermore, the letter to ONRC Action was not a final agency action because it merely stated that only site-specific and not general challenges to current projects would be considered. Therefore, the court held that there had not been a final agency action upon which to base an APA claim.

Additionally, the court noted in dicta that the fact that the Eastside EIS would affect ecosystems on a regional rather than local basis did not mean that there had been a final agency action for purposes of the APA. In so reasoning, the court relied on Ohio Forestry Ass'n v. Sierra Club,(234) which questions a plaintiff's ability to bring a cause of action for regional projects without directly challenging site-specific actions. The Ninth Circuit did not examine that holding in the present case because BLM had not adopted the Eastside EIS, so no official regional plan yet existed to be challenged.

ONRC Action then argued that NEPA and FLPMA impose duties on BLM to refrain from implementing management activities while the Eastside EIS was in preparation. First, the court looked to whether NEPA imposes such a duty and held that it does not. ONRC Action argued that NEPA imposes a duty on agencies to cease activities "that would significantly impact the environment."(235) BLM claimed that other NEPA sections in fact qualify that statement, and instead allow management activities to occur if an existing RMP covers the area at issue. ONRC action responded that the Eastside EIS was fundamentally different than other RMPs because it considered the impact of management activities on a regional rather than local basis, and therefore no similar LRP for the area existed.

The court rejected the appellants' argument and accepted the agency's explanation that although the Eastside EIS might change the focus of management activities if adopted, it would not eliminate the activities. Furthermore, NEPA imposes no statutory duty that would prevent the findings of the Eastside EIS from being incorporated into the existing RMPs. As such, the court held that the exceptions in NEPA apply to the present case and impose no duty on the agency.

Finally, the court turned to the question of whether FLPMA imposed a duty on the agency to refrain from implementing management activities while the Eastside EIS was in preparation. As with the NEPA obligation question, the court held that FLPMA imposes no duty on the agency. ONRC Action's argument here was similar to its argument for a NEPA-derived duty, but the group also alleged that there was no existing LRP for the area in question because existing RMPs had not been updated as required by FLPMA. Furthermore, ONRC Action argued that the Eastside EIS was a revision of existing RMPs and that FLPMA requires that activities cease while revisions are being made. BLM argued that according to its interpretation, FLPMA imposes no clear statutory duty to refrain from beginning management activities before adoption of the Eastside EIS, nor does it require regular updates of existing RMPs.

The court relied on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.(236) in its analysis of BLM's contention and held that the agency's interpretation of FLPMA was reasonable. The court explained that although the FLPMA regulations indicate under what circumstances revision of RMPs could take place, the regulations do not require a scheduled revision. The regulations also did not require BLM to cease management activities while revisions are under way.

C. Irrigation and Dams

1. Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.), as amended by 158 F.3d 491 (9th Cir. 1998), infra Part V.B.1.

2. Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998), cert. denied, 119 S. Ct. 1754 (1999), supra Part III. A.2.

3. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998), infra Part V.A.2.

4. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998), supra Part III.A.4.

IV. NATIVE AMERICAN ISSUES

1. Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).

This case involved an appeal from two consolidated cases. Defendants appealed the district court's grant of summary judgment in favor of the Yakama Indian Nation and individual Yakama Indians. The district court held that the treaty with the Yakamas exempted them from obtaining a Washington State truck license and from paying overweight permit fees.(237) The treaty clause at issue secures the Yakamas "the right, in common with citizens of the United States, to travel upon all public highways."(238)

Washington law requires registration and licensing of trucks according to gross weight,(239) charges higher fees for greater weights,(240) and "requires log tolerance permits for certain overweight trucks along with payment of a fee."(241) Individual Indians have never been exempt from these fees. Violations of the requirements result in traffic infractions.

Plaintiff-intervenor Yakama Indian Nation sells timber from lands held in trust by the United States for the Tribe's and its members' benefit. Individual plaintiffs either own logging operations or operate logging trucks that haul logs from timber sales within the reservation to off-reservation mills. Appellants are state officers authorized to issue traffic citations for violations of Washington State vehicle registration, licensing, and permitting statutes. Plaintiffs brought suit after the officers issued citations to Tiin-Ma Logging and Wheeler Logging drivers because their owners had neither paid tonnage licensing fees nor secured log tolerance permits for their trucks. The officers then began to cite drivers for failing to have proper registration. They continued to do so until the district court entered preliminary injunctions prohibiting the citations.

The issue on appeal was whether the state could impose licensing and permitting fees on logging trucks owned by the Yakama Nation or its members. The Yakamas claimed that the appellants had violated their travel rights under the treaty. The Ninth Circuit agreed with the Yakamas and affirmed the district court's grant of summary judgment in their favor.

To determine the meaning of the "in common with" language as applied to the public highways right, the district court underwent an extensive evidentiary hearing. The district court explained that the treaty defined basic rights secured to the Yakamas that represented their way of life. It noted that travel was essential to the Yakamas' way of life, allowing trade, subsistence, and maintenance of religious and cultural practices. The court also held that there was no mention of any sort of restriction on hunting, fishing, or travel during treaty negotiations other than the condition that the government be allowed to construct wagon roads and a railroad through the reservation, Additionally, the term "in common with" was never explained to the Indians; the court noted that the Yakamas understood the term to mean that there was no restriction placed on their usual practice of travel or their right to travel to market, and rejected the appellants' argument that "in common with" placed the Indians on an equal footing with whites.

The Ninth Circuit reviewed de novo the interpretation and application of treaty language and reviewed the underlying factual findings for clear error. It reviewed for an abuse of discretion the district court's ruling that non-Indians may exercise tribal treaty rights. The Ninth Circuit stated that United States Supreme Court precedent requires interpreting Indian treaties as the Indians would have understood them.(242) It held that the language of the treaty demonstrated the promises made by the United States to guarantee the Yakamas the right of free use of the public highways. This right includes the right to use future roads to carry out the Tribe's customs. The court disagreed with the appellants' argument that a travel right was inconsistent with the United States's intent to assimilate the Tribe into white culture. The court held that although the treaty had elements of assimilation, the United States had also wanted to satisfy the Yakamas, and that the appellants had not shown how the existence of assimilation elements in the treaty proved that the public highways clause could not serve the function of preserving Yakama customs.

Regarding the "in common with" language of the treaty, the Ninth Circuit approved of the district court's deference to the manner in which the Indians would have naturally understood the terms of the treaty, and of the district court's resolution of any doubts and ambiguities in the Indians' favor. It also held that the district court's interpretation was `consistent with the United States Supreme Court's interpretation of similar language in the context of treaty fishing rights. Moreover, the court also explained that there was no evidence that any Yakamas had expected to pay tolls, and approved of the district court's finding that the Yakamas were unlikely to have understood the government's policy towards Indians at the time the treaty was signed, therefore making this policy irrelevant to determining the extent of the travel right. It also noted that inclusion of the travel clause in only the Yakama and Nez Perce treaties demonstrated the importance of travel to the Yakamas.

The appellants claimed that the conduct of the parties to the Yakama treaty demonstrated their understanding that the Yakamas would follow settlers' laws when they used off-reservation public highways. The Ninth Circuit held that posttreaty activity in this case was inconclusive, because the Indians had begun to challenge hauling and overweight fees in a timely manner soon after they had begun to haul tribal timber off-reservation.

The Ninth Circuit approved of the use of a tribal elder's expert testimony on the issue of the Tribe's understanding of the treaty language. It also held that the trial court had not abused its discretion when it allowed nontribal member agents of the Yakama Nation to exercise rights under the treaty. Because appellants had not objected to the district court's ruling on tribal regulatory sovereignty, the Ninth Circuit held that they had no basis on which to object to the way the Yakama Nation chose to exercise its travel rights.

2. Montana v. United States Environmental Protection Agency, 137 F.3d 1135 (9th Cir.), cert. denied, 119 S. Ct. 275 (1998).(243)

In 1995, the Environmental Protection Agency (EPA) granted the Confederated Salish and Kootenai Tribes of the Flathead Reservation (Tribes) "treatment as state" (TAS) status under the Clean Water Act (CWA),(244) authorizing the Tribes to set water quality standards for all navigable waterways within their reservation. The State of Montana and others owning land in fee within the reservation challenged this grant of authority. The Ninth Circuit upheld the grant of TAS status to the Tribes, holding that EPA's regulations properly applied the doctrine of inherent tribal authority in extending the Tribes' regulatory authority over nonmembers on fee land within the reservation. The court also denied standing to irrigation districts and individual irrigators who sought to intervene.

Under the CWA, states and tribes that are granted TAS status set water quality standards for waters under their jurisdiction.(245) States and tribes are then charged with certifying that each discharge permit issued under the National Pollutant Discharge Elimination System (NPDES) does not derogate those standards.(246) In this case, Montana argued that that the grant of TAS status to the Tribes allowed the Tribes to set water quality standards that would apply to all emissions within the reservation, including those originating on land owned in fee by nonmembers of the Tribe. Montana claimed that this was an improper extension of the Tribes' authority beyond that necessary for self-governance.

In issuing regulations governing the grant of TAS status, EPA adopted the standard of inherent tribal authority, a standard developed by the Supreme Court to determine when a tribe may regulate nontribal activities. Under this standard, the activity the tribe seeks to regulate must "`serious[ly] and substantial[ly]'" affect "the political integrity, the economic security, or the health or welfare of the tribe."(247) In order to meet its burden under the regulations, a tribe must show that 1) the tribe uses waters located within the reservation, 2) those waters are subject to protection under the CWA, and 3) impairment of those waters would have a serious and substantial effect on the tribe's health and welfare.(248)

The Ninth Circuit held that these regulations properly delineate the scope of inherent tribal authority set forth by the United States Supreme Court in Montana v. United States.(249) In that case, the Court held that absent express authorization by statute or treaty, tribes lack civil jurisdiction over nonmembers' activities on fee land within a reservation. The Supreme Court recognized the following two exceptions to this rule: 1) when nonmembers enter into consensual relationships with tribal members; and 2) when nonmember conduct "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."(250) EPA adopted the language of the second exception in its own regulations, taking the view that TAS status represents a form of civil jurisdiction proper only when the conditions of the second Montana v. United States exception are met.

In upholding EPA's regulations, the Ninth Circuit first stated that EPA's choice of standard for granting TAS status was ,entitled to Chevron(251) deference because the statutory language and legislative history of the CWA are unclear as to which standard should be used to evaluate TAS status. Second, the court held that notwithstanding the deference accorded to the choice of standard, the application of that standard was a question of law to which EPA was entitled no deference because such application "has nothing to do with [EPA's] own expertise or with any need to fill interstitial gaps in the statute."(252) Finally, the court nevertheless held that EPA had not made any material error of law in its application of the doctrine of inherent tribal authority.

In supporting the final holding, the court stated that in requiring the impacts on tribal health and welfare to rise to a "serious and substantial" level, EPA had properly taken into account the Supreme Court's comments on inherent authority in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation.(253) While Montana argued in the present case that Brendale repudiated the Montana v. United States standard of inherent authority, the Ninth Circuit rejected this argument, noting instead that the holding in Montana v. United States had been reaffirmed recently by the Supreme Court in Strate v. A-1 Contractors.(254) The Ninth Circuit also noted that EPA's finding of serious and substantial threats to tribal health and welfare was supported by Ninth Circuit precedent holding that threats to water rights may invoke inherent authority.(255) Finally, the court explained that its decision was "fully consistent" with the Tenth Circuit's recent holding that the authority to establish water quality standards more stringent than federal standards was "in accord with powers inherent in Indian tribal sovereignty."(256)

On the question of intervention as of right by the irrigators, the Ninth Circuit upheld the district court's holding that the intervenors did not have a protectable interest at stake in this case because they did not hold NPDES permits that would be modified by the Tribes' exercise of TAS authority. The intervenors argued on appeal that their interest in the proceedings derived from 1) an alleged violation of their civil rights by the imposition of the Tribes' standards, and 2) an alleged depression in value of their property caused by the water quality standards. In responding to these arguments, the court held that TAS status would not subject nonmembers to tribal enforcement authority--even if the nonmembers held NPDES permits--because EPA retains authority to issue and enforce permits in federal, not tribal, courts. The court also noted that the possible effect on property values was speculative and did not present a protectable interest under the CWA, a statute that pertains to environmental concerns.

3. Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998), supra Part I.D.7.

4. Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir. 1998).

The Muckleshoot Indian Tribe (Muckleshoot) and other South Puget Sound Indian Tribes disputed an interpretation of decrees adjudicating their treaty fishing rights with respect to the "usual and accustomed fishing places" of the Lummi and Swinomish Tribes. Muckleshoot and other South Puget Sound Tribes filed a request for determination (RFD) seeking an injunction restraining the fisheries of North Puget Sound Tribes, including the Swinomish and Lummi Tribes (Swinomish and Lummi). The northern fisheries intercepted salmon on their return migration from the ocean, through the Strait of Juan de Fuca and Puget Sound. The North Puget Sound Tribes moved to dismiss, and Muckleshoot filed a motion for summary judgment against Swinomish and Lummi.

Muckleshoot sought rulings that each Tribe's usual and accustomed fishing grounds and places, as defined by United States v. Washington (Phase I)(257) and United States v. Washington (Phase II),(258) did not include the Puget Sound Commercial Salmon Management and Catch Reporting Area 10, an area including the waters of Puget Sound bordering the City of Seattle. The district court granted Muckleshoot's motion against Swinomish and continued the motion against Lummi to allow that Tribe to depose anthropologist Dr. Barbara Lane, an expert witness whose report on historical tribal fishing grounds was the principal evidence relied upon in Phase I. The district court later granted Muckleshoot's motion for partial summary judgment against Lummi and dismissed the RFD without prejudice but subject to limitations on refiling.

On appeal, Swinomish claimed that the district court had erred in hearing Muckleshoot's partial summary judgment motion. Swinomish claimed that Muckleshoot had violated the decree by making Area 10 fishing ground claims in the RFD rather than initiating a separate subproceeding. Phase I provides that "a party seeking relief shall file ... a `request for determination,'... setting forth the factual and legal basis of the claim for relief ... and a statement of the relief sought by the requesting party."(259) Swinomish argued that because the RFD only raised issues of fair allocation of treaty-share salmon, Swinomish had not received adequate notice of Muckleshoot's intent to litigate fishing ground claims. Swinomish claimed that Muckleshoot should have convened a conference before filing a separate subproceeding. The district court decided that there were no practical reasons for requiring compliance with this part of the decree, because both Lummi and Swinomish had had notice of the fishing ground issue for several years. Therefore, failure to file a separate subproceeding did not prejudice them. Also, Muckleshoot's motion only sought clarification of two of the decree's findings, not a determination of a new issue.

A decision regarding management of litigation is reviewed for abuse of discretion. Here, the Ninth Circuit held that there had been no abuse of discretion in entertaining Muckleshoot's motion without a new subproceeding because the district court limited review to clarifying two prior findings of Phase I and Phase II. Neither Swinomish nor Lummi was prejudiced by the action of the district court, because both had had notice of Muckleshoot's contention over Area 10 for many years. Clarification of fishing areas was relevant to the fairness of fish allocation, because allocation involves determining where the fish may be harvested.

The district court interpreted the finding of "usual and accustomed fishing grounds" in Phase I to exclude waters in Area 10, because the southernmost land point, Whidbey Island, lies seven miles north of the northernmost part of Area 10.(260) Swinomish argued that because the designated fishing grounds included "marine areas" surrounding Whidbey Island, these grounds were meant to include some of the northern part of Area 10. The Ninth Circuit disagreed, stating that the Swinomish had not offered any evidence suggesting that the district court's factual findings regarding Swinomish's fishing grounds were ambiguous or that the district court meant something other than the plain meaning of Phase I. Therefore, the court held that "marine areas of northern Puget Sound ... south to and including Whidbey Island"(261) does not include any part of Area 10.

The usual and accustomed fishing grounds of the Lummi Tribe included the marine areas of Northern Puget Sound from the Fraser River south to the "present environs of Seattle,"(262) a definition derived from a report from Dr. Lane and relied on in Phase I. The district court concluded that Judge Boldt in Phase I had meant to adopt Dr. Lane's intended meaning, even though this meaning was not discerned until a deposition taken in August 1995, more than twenty years after the decision was handed down. Lummi claimed that admission of this testimony was error, because the definition was not part of the original decree. In determining the meaning of an ambiguous judgment, the record before the issuing court and the findings of fact should be consulted. The Ninth Circuit concluded that "present environs of Seattle" is ambiguous, because Judge Boldt did not give the exact location of the "environs of Seattle" at the time of his decision. Because Phase I and Phase II did not clarify this phrase, it would be speculation to assume that Judge Boldt would have adopted Dr. Lane's meaning had he been aware of it. Therefore, the district court had erred by using this later testimony to determine Judge Boldt's intended meaning.

The Ninth Circuit also held that the district court had erred in entering a supplemental finding under the decree to determine the location of a tribe's usual and accustomed fishing grounds not specifically determined by Phase I. The appellate court first observed that all parties had not been allowed to present evidence. Second, although the decree had reserved continuing jurisdiction, there was no express authorization for the court to resolve an ambiguity with supplemental findings that would change the description of fishing grounds in the decree. However, the court held that the district court did have jurisdiction to determine whether actions of the parties conformed with Phase I. The RFD and later proceedings under it involved whether the southern portion of the areas in which the Lummi Tribe is currently taking fish conforms to the decree. The parties had failed to offer evidence that would allow the district court to give specificity to the geographic terms of the decree. Consequently, this issue should be addressed on remand to the district court.

Judge O'Scannlain dissented, stating that the deposition of Dr. Lane had been properly considered by the district court.

5. United States v. Washington, 135 F.3d 618 (9th Cir. 1998), amended by 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).(263)

This case involved a dispute between the State of Washington (the State), Washington Indian Tribes (the Tribes), private landowners (the Owners), and private shellfish growers (the Growers) over the extent of Indian treaty rights as they apply to shellfish harvest in Washington's waters. In the 1850s, the United States negotiated five treaties with the Indian tribes in the Western Washington Territory. These treaties reserved the "right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory."(264) The Ninth Circuit and the United States Supreme Court have held that this entitles the tribes to fifty percent of all fish in the waters of Washington State.(265) The tribes' right to take shellfish is limited by the Shellfish Proviso: "Provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens."(266)

The district court concluded that shellfish are included in the treaty fishing rights of the tribes. It concluded that the tribes have a right to take fifty percent of the harvestable shellfish of every species found within the tribes' usual and accustomed fishing areas, except as specifically excluded by the Shellfish Proviso. The district court interpreted the proviso to exclude tribes from artificial, or cultivated, beds. It later refined its definition of "cultivated" to preclude the tribes from harvesting shellfish on most of the commercial growers' property. The court also placed time, place, and manner restrictions on the tribes' ability to harvest from privately owned land. Finally, the court created a system for appointment and removal of special masters to resolve disputes between the four interested parties.

Indian tribes of the Northwest rely on fish and shellfish for commercial, subsistence, and ceremonial purposes. Treaty negotiators were aware that reserving tribal fishing rights to the Indians was crucial for clearing the way for a land settlement between the tribes and the government. At the time of the treaties, a shellfish industry was developing in the Washington Territory, of which the treaty negotiators for the United States were aware. Shellfish farmers frequently staked beds of shellfish by storing market-sized shellfish removed from other beds until they could be shipped to market. These beds would not normally support the type of shellfish stored on them. The beds' boundaries were marked for identification purposes with stakes extending above the surface of the water at high tide.

Although shellfish were harvested almost exclusively by the tribes in the years immediately following the signing of the treaties, in 1879 the state legislature passed a law allowing citizens the exclusive right to use and harvest natural oyster beds. After Washington became a state in 1889, it passed legislation allowing private purchase of tidelands, even those containing natural shellfish beds. Evidence at trial showed that native shellfish populations have substantially declined and have been replaced by foreign species.

Previous district, Ninth Circuit, and United States Supreme Court decisions had established the nature and extent of the tribes' off-reservation fishing rights with respect to anadromous fish. In 1989, sixteen Indian tribes, later joined by the United States, filed an action in the district court seeking a declaration of the nature and extent of their shellfishing rights. Initially, the district court interpreted the applicable treaties to give fifty percent of the shellfish harvest in Washington waters to the tribes. On August 28, 1995, the district court announced an "Implementation Plan" to execute the declaratory judgment. Because the court considered the private property owners and shellfish growers to be innocent purchasers, it invoked its equitable powers to make several rulings.

First, it ruled that when the state develops artificial beds on state-owned land to encourage recreational shellfishing, the state is acting as a "citizen" within the scope of the Shellfish Proviso. Second, the court determined that a natural shellfish bed is a bed capable of yielding a shellfish harvest that will support a commercial livelihood, and that 0.5 pounds of mature clams per square foot constitutes a "commercial livelihood." Third, it established that the only beds subject to the tribes' treaty rights were beds created entirely by the natural propagation of the species. Fourth, it imposed time, place, and manner restrictions on the tribes' rights to shellfish on private properties. Finally, the court established dispute resolution procedures consisting of one special master selected by each of the four interested parties. The district court gave the masters the power to award damages against tribes who violate the Implementation Plan.

In a December 18, 1995 amendment to the Implementation Plan, the court lifted a ban on upland tribal access to shellfish beds without consent of the landowner on the condition that tribes show the absence of another means of access. It also changed its decision regarding allowing the special master to award damages against the tribes. The master could no longer award damages against the tribes themselves, but could award damages against individual tribal members.

Courts must interpret treaties based on the meaning that the treaty parties gave to the treaty terms. "Treaties are constructed more liberally than private agreements, and to ascertain their meaning we may look beyond written words to the history of the treaty, the negotiations and the practical construction adopted by the parties."(267) The Shellfish Proviso is an exception to the tribes' fishing rights and must be strictly construed. Treaties must be construed in favor of establishing tribal rights because of the trust relationship between the United States and the Indian tribes.

The tribes' right to take shellfish is not limited to species harvested by the tribes at the time of the treaties. The treaties do not mention specific species or technology limitations on the tribes' rights. The Ninth Circuit had previously held that tribal rights to fish are not limited as to species, purpose, or use of the fish, or time or manner of taking the fish.(268) At the time the treaties were negotiated, the tribes had the right to harvest any species they desired. Consequently, the fact that some species were not taken before treaty time did not mean that their right to take those species was prohibited.

Appellants first claimed that the tribes' "usual and accustomed" fishing grounds for shellfish are not the same as the fishing grounds for other fish. The Ninth Circuit noted that modern courts considering fishing disputes under the treaties have never required species-specific findings of usual and accustomed grounds, because the locations of those grounds had been determined in previous litigation.(269) The court stated that it would be costly and difficult for each tribe to establish its usual and accustomed grounds for every species of fish and shellfish, because little documentation remains to identify historic fishing grounds. Therefore, the Ninth Circuit held that the district court had not erred in concluding that the tribes' usual and accustomed grounds for shellfish are coextensive with the tribes' usual and accustomed fishing grounds previously established by the courts.

Second, appellants contended that the Equal Footing Doctrine should be applied to this case. Under the Equal Footing Doctrine, every new state is entitled to enter the Union on an "equal footing" with other states. The outgrowth of this doctrine, the Shively Presumption, states that any prestatehood grant of property does not include tidelands unless clearly indicated. Appellants claimed that a treaty right to harvest shellfish amounts to a property interest in the tidelands. However, the court stated that because the treaties did not specifically grant a property interest in the tidelands, the treaties should not be construed as granting rights to harvest shellfish. The Ninth Circuit explained that courts have rejected application of the Equal Footing Doctrine in the Stevens Treaties fishing rights context, and noted that appellants' Equal Footing arguments here were also inappropriate.

Third, the Owners claimed that the tribes did not have a right to harvest shellfish on privately owned tidelands, because the treaties only gave the tribes the same right to harvest shellfish as non-Indian citizens. The court rejected this argument, noting that it was settled that Indians are not limited to rights in common with other citizens, and that the tribes were "`given a right in the land.'"(270) Because the treaties reserved the tribes' right to fish at their usual and accustomed grounds and stations, the tribes had the right to take shellfish from the tidelands within their usual and accustomed grounds, regardless of private or public ownership. Moreover, because the treaties represent the supreme law of the land and reserved the right to take shellfish from private tidelands, "`neither party to the treaties may rely on the States' regulatory powers or on property law concepts to defeat the other's right to a `fairly apportioned' share of each covered run of ... fish.'"(271)

Fourth, the court held that the district court had correctly interpreted the meaning of the Shellfish Proviso, which prohibited the tribes from taking shellfish from "any beds staked or cultivated by citizens."(272) Explaining that the phrase "beds staked or cultivated" was commonly understood within the shellfishing industry at treaty time to refer to artificial beds created by citizens, the court found that the Growers' interpretation that any bed staked or improved by labor was excluded from the treaties was inconsistent with the government's intention to preserve tribal rights to fish. The court also stated that adopting appellants' interpretation would essentially eliminate the reserved tribal right to harvest shellfish, and that the canons of construction and interpretation indicated that provisos should be strictly construed and treaties should be liberally construed in favor of the Indians. The Growers also claimed that the doctrine of laches should defeat the tribes' claims to shellfish rights because the tribes did not assert their treaty rights for 135 years. However, because treaties occupy a unique position in law, the court held that the doctrine was inapplicable.

Next, the Ninth Circuit court held that the district court had improperly employed equitable principles to limit the tribes' right to take shellfish to completely natural beds that were untouched by human labor. Instead, the court should have used its equitable powers to limit the tribes' take, rather than the location of that take, in order to avoid unjust enrichment. The Ninth Circuit agreed that the tribes should not benefit from the shellfish growers' enhancement efforts and that the tribes were entitled to harvest fifty percent of beds existing solely because of natural propagation of the species. The court also required growers to show what portion of their harvest on an enhanced natural bed results from their labor versus what portion would exist without their efforts. The tribes are entitled to fifty percent of the pre-enhanced sustainable shellfish production from those beds, and have no right to harvest artificial beds.

In a related issue, the Ninth Circuit upheld the decision of the district court to use equitable principles to impose time, place, and manner restrictions on the tribes' treaty shellfishing rights when those rights are exercised on shellfish growers' or private landowners' property. The district court created several equitable restrictions by 1) limiting the harvest to five days per year for any private beach not controlled by a grower; 2) giving a grower the discretion to unilaterally modify the harvest plan if it is incompatible with the grower's farming operation; 3) allowing the grower to prohibit harvest of natural clams under areas cultivated for oysters, even when no oysters are present; 4) prohibiting harvest on nongrower private tidelands without first surveying to determine the existence of shellfish populations; and 5) limiting the manner and method of such a survey to the type currently in use by the state. The Tribes argued that these restrictions are contrary to the treaties, but the district court explained that the limits imposed on the tribes' harvest still allow them to attain their allocations without excluding them from their historic fishing grounds.

The Ninth Circuit also concluded that the district court had erred in concluding that the State of Washington is a "citizen" for purposes of the Shellfish Proviso. The court pointed out that no case law supports the idea that a state can be a citizen. Additionally, the district court had erred in fixing the minimum quantity of manila clams that would support a commercial livelihood, because there was insufficient evidence in the record to support such a conclusion.

Finally, the district court addressed the issue of the appointment of special masters to resolve disputes between the parties. The district court prohibited tribal access across privately owned upland property to reach shellfishing grounds unless access is requested from and granted by a special master and tribal members show that they can not reach the grounds by boat, road, or public right of way. On appeal, the Tribes claimed that this was an improper limitation on their fishing rights. Citing its ability to use equitable remedies to fashion relief, the Ninth Circuit stated that it was permissible for the district court to require the tribes to prove the unavailability of other forms of access before allowing them to cross private land.

The Tribes additionally objected to the district court's decision granting to appellants the right to designate three of the four special masters, and the designating parties' ability to remove special masters at will and without court approval. The appellate court agreed, noting that the seventy-five percent chance that appellants' master would be selected violated due process. Accordingly, the Ninth Circuit vacated this portion of the implementation plan. On remand, the Ninth Circuit instructed the district court to reconfigure the appointment of special masters. However, the appellate court affirmed the district court's judgment that the special masters have authority to award damages against individual tribal members, because individuals' actions implicate their sovereign's interests.

V. LITIGATION ISSUES

A. Civil Procedure

1. Kettle Range Conservation Group v. United States Bureau of Land Management, 150 F.3d 1083 (9th Cir. 1998), supra Part I.D.6.

2. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998).

Southwest Center for Biological Diversity (Southwest Center) brought a suit against Secretary of the Interior Bruce Babbitt, alleging that the government's plan to use the Additional Active Conservation Capacity (AACC) behind the Roosevelt Dam violated both the Endangered Species Act (ESA)(273) and the National Environmental Policy Act (NEPA).(274) Specifically, Southwest Center asserted that the government had failed to adequately assess the impact that the use of the AACC would have on the Southwestern Willow Flycatcher, an endangered species of bird that nests near the dam. Southwest Center sought injunctive relief to prevent the government from filling the AACC until it completed further environmental study.

The district court dismissed Southwest Center's action for failure to join the Salt River Pima-Maricopa Indian Community (the Community) as a party to the proceedings. The Community was a nonparty with rights under an earlier agreement to store water in the AACC. According to the district court, the Community was a necessary and indispensable party to the lawsuit. Under Rule 19 of the Federal Rules of Civil Procedure,(275) the court could not proceed with the legal action without the presence of all necessary and indispensable parties. Thus, the Federal Rules required dismissal of the case.

The Ninth Circuit reversed the district court's decision and remanded the case for further proceedings. While it agreed with the district court's conclusions that the Community had an interest in the outcome of the proceedings, and that an injunction preventing use of the AACC would impair that interest, the Ninth Circuit nevertheless determined that the district court had abused its discretion when it dismissed the case for failure to join the Community as a necessary party. The Ninth Circuit stated that "as a practical matter, the Community's ability to protect its interest [would] not be impaired by its absence from the suit because its interest [would] be represented adequately by the existing parties to Southwest's suit."(276)

The court determined that the United States could adequately represent the Community's interest in the suit. First, no conflict of interest existed between the United States and the Indian Community. Second, the federal government and the Community shared a "strong interest in ... ensuring that the AACC is available for use as soon as possible."(277) In addition, the "district court did not question the ability or willingness of the [government] to represent the Community adequately in the ... suit."(278)

The Ninth Circuit also rejected the district court's holding that the government would have been unable to represent the Community adequately because the government had not supported the Community's motion to dismiss the case under Rule 19. Characterizing this logic as "circular,"(279) the Ninth Circuit refused to accept the proposition that the government would not adequately represent the Community's interest merely because it had correctly concluded that it need not support the Community's motion to dismiss. In fact, the Ninth Circuit interpreted the government's action to indicate the opposite of what the district court had proposed; the government's opposition to the motion to dismiss indicated that the government did not see the need to join the Community as a party because the government could represent the Community's interest sufficiently.

The presence in the suit of several intervening municipalities with interests similar to the Community buttressed the Ninth Circuit's conclusion that the Community was not a necessary party. These cities, however, claimed that they could not adequately represent the Community's interest because they derived their water storage rights from a different source than the Community, and they disagreed with the Community over interpretation of the agreement that gave the Community its rights. The Ninth Circuit disagreed. The court found that these "differences have no bearing on the cities' ability to represent the Community on the merits of the litigation ... [because] [n]either the settlement agreement nor the source of the parties' storage rights [was] at issue in Southwest's suit."(280)

Finally, the Ninth Circuit rejected the district court's determination that the Community was a necessary party because its absence from the litigation would expose the existing parties to multiple or otherwise inconsistent obligations. The district court reasoned that if it granted Southwest Center's injunction, litigation to determine the Community's rights under the resulting agreement would probably follow. The Ninth Circuit, however, held that the contested agreement, rather than the injunction, would be the source of any inconsistent obligations that might arise. The court stated, "Litigation to resolve the ambiguity in the ... agreement ... would be just as likely if ... [the] Community were a party to Southwest's suit."(281) In addition, this ambiguity could lead to litigation even if the court were to dismiss Southwest's suit. Thus, the Ninth Circuit found that the presence of the Community as a party was not necessary for the district court to adjudicate the case, and it remanded the case to that court for further proceedings.

3. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998), supra Part III.A.4.

B. Standing

1. Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.), as amended by 158 F.3d 491 (9th Cir. 1998).

In this case, local governments sought to prevent the federal government from implementing a water rights acquisition program without first following procedures mandated by the National Environmental Policy Act (NEPA).(282) The Ninth Circuit's opinion did not address the merits of the underlying case, but instead focused on issues of justiciability and procedure.

This case arose out of the federal government's efforts to deal with the unforeseen environmental consequences of an early attempt to irrigate much of western Nevada. While the Newlands Reclamation Project had created a thriving agricultural community in this area, its water diversions had also produced adverse environmental impacts to wetlands in some locations. In an effort to deal with some of these impacts in the Truckee and Carson Divisions of the project, Congress in 1990 passed the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act (Settlement Act).(283) Section 206 of the Settlement Act establishes a water rights acquisition plan (the Plan) "to increase the wetlands and ... sustain indefnitely approximately twenty-five thousand acres of wetlands in the Lahontan Valley."(284) The Plan authorizes the United States Fish and Wildlife Service (FWS) to purchase land or water rights from private owners and transfer these interests to publicly owned wetlands in the Lahontan Valley.

FWS announced its intent to proceed under the Plan in a record of decision (ROD) in November 1996. The ROD stated that FWS would purchase fifty-five thousand acre-feet of water from the Carson Division starting in December 1996. In addition, FWS would "seek an additional thirty-three thousand acre feet through leasing programs and other methods."(285)

Because the Carson Division lies within Churchill County and near the City of Fallon, officials from these municipalities expressed concern that the Plan, combined with other water projects under the Settlement Act, might adversely affect both their land and their ability to monitor and regulate their supply of local drinking water. They sued Bruce Babbitt, the Secretary of the Interior, under the Administrative Procedure Act (APA),(286) alleging that he had violated NEPA's procedural requirements when he failed to prepare a programmatic environmental impact statement (PEIS) that considered the combined effect of the Plan and other water programs in the area. The district court determined that the plaintiffs did not have standing to bring the suit and granted summary judgment in favor of the government. Churchill County (the County) and the City of Fallon (the City) appealed.

On appeal, the Ninth Circuit reversed the decision of the district court. Conducting a de novo review of the question of the appellants' standing, the court stated that, at a constitutional minimum, a plaintiff must meet the requirements of the three-part test that the United States Supreme Court announced in Lujan v. Defenders of Wildlife(287) in order to bring a claim in federal court. Under Defenders of Wildlife, a plaintiff must first establish that he has suffered an "injury in fact."(288) The Supreme Court defined this type of injury as an "invasion of a legally protected right" that is "concrete and particularized" and "actual or imminent," as opposed to "conjectural or hypothetical."(289) Next, a plaintiff must establish a "causal connection between the injury and the conduct complained of."(290) Finally, "it must be `likely,' as opposed to merely `speculative,'" that a favorable decision will redress the injury.(291)

The Ninth Circuit emphasized that because the appellants sought standing to address an alleged procedural injury, the standards for establishing standing were somewhat relaxed. The court quoted from a footnote in Defenders of Wildlife to support this conclusion: "`procedural rights' are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.'"(292) Under the Ninth Circuit's test for procedural standing, a plaintiff need only establish "1) that it has been accorded a procedural right to protect its interests, and 2) that it has a threatened concrete interest that is the ultimate basis of its standing."(293)

The court found that the appellants satisfied the first prong of the test established in Douglas County v. Babbitt,(294) because NEPA accorded them a procedural right to protect their concrete interests. NEPA mandates the preparation of an environmental impact statement (EIS) on major federal actions that significantly affect the environment.(295) It grants "local agencies, which are authorized to develop and enforce environmental standards" the right to submit comments on the EIS.(296) Because Nevada statutes authorized the appellants to prepare and adopt land management plans, appellants qualified as local agencies under NEPA. Thus, NEPA granted the appellants a procedural right to protect their land interests.

The court next determined that the appellants had demonstrated a reasonable probability that the failure to prepare a PEIS imminently threatened their land interests. In addition, the Department of the Interior's final environmental impact statement (FEIS) "noted likely adverse effects in the County and the City's groundwater levels and quality."(297) Finally, no report by the Department of the Interior had addressed the "cumulative and synergistic" effects of the proposed action and other Settlement Act projects.(298) Because the appellants either possessed or managed, or both possessed and managed lands adjacent to the federal lands involved in the Plan, NEPA required the Department of the Interior to adequately consider the environmental consequences that the Plan would have on those lands. By demonstrating that the Department of the Interior had failed to do so, City and County "established the imminence of the threatened concrete interest necessary for procedural standing."(299)

The Ninth Circuit rejected the appellees' argument that the County and the City did not met the imminence requirement for standing. The government argued, and the district court held, that Lujan v. National Wildlife Federation(300) required the appellants to "own or manage land `actually affected by the challenged activity, not merely an area `adjacent to' or `in the vicinity' of the affected land'" in order to show imminence of injury.(301) The Ninth Circuit disagreed with this interpretation of National Wildlife Federation, stating that the case "did not hold that all plaintiffs have to use the lands directly affected by the challenged action. Rather, it held that vague allegations of injury were insufficient for standing when unsupported by any specific showing that the plaintiffs' use of land was affected by the challenged decision."(302) Because the appellants had adequately demonstrated that the cumulative consequences of the Settlement Act's programs were likely to adversely affect their lands, National Wildlife Federation did not require any heightened demonstration of imminence in this case.

The court next determined that the appellants met the requirements for standing under the APA. Because the County and the City brought their suit under the APA, they were required to establish standing under that Act in addition to establishing a more general procedural standing. In order to show standing under the APA, the appellants needed to establish 1) "that there ha[d] been final agency action that adversely affected them," and 2) "that their injury f[ell] within the zone of interests protected by the section of NEPA they claim[ed] was violated."(303) The appellants satisfied the first prong of the APA's standing requirements because the ROD was a final agency action that "determined the various actors' rights and obligations."(304) The appellants satisfied the second requirement because a threat to the environmental health of water and land fell within the zone of interests that NEPA protects. Thus, the Ninth Circuit held that the County and the City had established standing to bring their suit under the APA.

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

The appellate court noted that Rule 24 of the Federal Rules of Civil Procedure requires that a party seeking to intervene as a matter of right have a significantly protectable interest in the underlying action.(305) Sierra Pacific did not and, in fact, could not have such an interest: because "NEPA requires action only by the government, only the government can be liable under NEPA."(306) Thus, because a private entity cannot comply with NEPA, a private party cannot intervene as a defendant in a NEPA action. While the Ninth Circuit agreed that Sierra Pacific did indeed have some interest in the outcome of the underlying action, it held that the district court did not err by limiting Sierra Pacific's intervention to the remedial phase of the proceedings.

2. Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998), supra Part I.C.3.

C. Attorneys Fees

1. United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998), supra Part I.A.3.

D. Evidentiary Issues

1. United States v. Senchenko, 133 F.3d 1153 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998), supra Part III.A.6.

VI. CONSTITUTIONAL ISSUES

1. Dodd v. Hood River County, 136 F.3d 1219 (9th Cir.), cert. denied, 119 S. Ct. 278 (1998).

In its second attempt(307) to settle a dispute between the County of Hood River; the State of Oregon; and Thomas and Doris Dodd, a couple who sought to build their retirement home in an area designated under state law as a Forest Use Zone, the Ninth Circuit held that 1) the doctrine of issue preclusion applied to issues addressed in proceedings before Oregon's Land Use Board of Appeals (LUBA), and 2) Oregon state law prohibiting the building of residences in a Forest Use Zone did not constitute a taking under the Fifth and Fourteenth Amendments to the United States Constitution. In 1984, the Dodds bought property in Hood River County in an area designated as a Forest Use Zone under state law. At the time the Dodds bought their property, state law prohibited the construction of buildings within Forest Use Zones unless such buildings were "necessary and accessory" to forest use.(308) Six years after purchasing the property, the Dodds sought the requisite permits, comprehensive plan, and zoning changes that would allow them to build on their land. The Hood River County Planning Department, the Hood River County Planning Commission, and the Hood River Board of County Commissioners successively denied these permits.

The Dodds then appealed to LUBA, arguing that the denial of their building permits and zoning changes constituted a taking of their property under the Oregon State Constitution.(309) LUBA found that because the Dodds could derive profit from the property in the form of timber production, the building prohibition did not deny the Dodds a substantial beneficial use of their property and thus was not a taking under the Oregon Constitution. The Oregon Court of Appeals(310) and the Oregon Supreme Court(311) affirmed.

While their appeal to the Oregon Supreme Court was pending, the Dodds filed this action in federal district court, claiming that the state's land use laws as applied to their parcel constituted a taking of their property under the Fifth and Fourteenth amendments to the United States Constitution. The district court dismissed the Dodds' claim as unripe, and they appealed to the Ninth Circuit. Because the Oregon State Supreme Court had in the interim decided the Dodds' case, the Ninth Circuit remanded to the district court, finding that the federal issue was now ripe for federal judicial consideration. In its remand instructions, the appellate court instructed the district court to determine whether the Dodds' federal takings claim required a broader inquiry than that required under the Oregon Constitution; if so, the resolution of the Dodds' state law takings claim in the state court litigation would not preclude litigation of a federal takings claim.

On remand, the district court found that the requisite inquiries under both the state and federal takings provisions were not fundamentally distinct. Because the Dodds had previously litigated the same factual issue in the state proceeding as would be litigated in the federal takings action, i.e., the value of their property under the building prohibition, they were barred under the doctrine of issue preclusion from litigating that same issue in federal court. On appeal, the Ninth Circuit held that the district court had properly applied the doctrine of issue preclusion to LUBA's resolution of whether a categorical taking had occurred. Applying Oregon state law regarding issue preclusion, the Ninth Circuit found that 1) the issue in the state and federal proceedings, i.e., the value of the property under the regulation, was identical; 2) this issue was actually litigated before LUBA and was essential to LUBA's conclusion; 3) the LUBA proceedings provided a full and fair opportunity to be heard in which the Dodds had both the opportunity and incentive to litigate the relevant issues; and 4) LUBA proceedings are of the type to which state courts give preclusive effect, because Oregon denies preclusive effect to administrative proceedings only in the absence of safeguards that were present in the LUBA proceedings. Accordingly, the Ninth Circuit held that the Dodds were properly barred from relitigating the issue of a categorical taking in the federal court action because the issue had been resolved in the state LUBA proceeding.

However, the Ninth Circuit noted that despite the district court's finding to the contrary, takings analysis under federal precedent is distinct from takings analysis under Oregon precedent. Unlike the Oregon Supreme Court's approach, which analyzes a takings claim under an "all-or-nothing economics test,"(312) federal takings analysis recognizes that a taking may occur even when an owner does not lose all economically beneficial use of her land. Such an analysis requires a balancing of factors, including the legitimacy of the state interest forwarded by the regulation, the economic impact of the regulation on the property owner, and the extent to which the regulation interferes with distinct investment-backed expectations of the property owner.

The court then proceeded to assert its own authority to resolve the federal takings issue. The court noted that a remand to the district court was unnecessary under the unique situation presented by this case: no additional fact-finding was necessary, the proper resolution of the issues was beyond doubt, and the lengthy history of litigation in state and federal courts weighed against further dedication of judicial resources to resolution of the Dodds' claims.

In assessing the Dodds' federal takings claim, the court held that the Oregon state law prohibiting building in Forest Use Zones advanced a legitimate government interest "in promoting commercial timber practice by limiting dwellings that could adversely affect forest use and practices."(313) The court found this interest analogous to those recognized as legitimate by the United States Supreme Court in Nolan v. California Coastal Council(314) and Agins v. Tiburon.(315)

Finally, the court assessed what, if any, investment-backed expectations would be derogated by denial of the Dodds' building permits. The court held that the Dodds could not have reasonably expected to build their retirement home on the property, because state law prohibited such construction at the time of purchase. Furthermore, the court noted that the Dodds "have pursued their alleged expectation to build with something less than speed or vigor,"(316) having waited six years from the time of purchase to apply for the permits, and having spent the ensuing time exhaustively litigating their claims in administrative, state, and federal courts. The court therefore concluded that the application of Oregon state law prohibiting construction within a Forest Use Zone to the Dodds' property did not constitute an impermissible taking under the United States Constitution.

2. Foss v. National Marine Fisheries Service, 161 F.3d 584 (9th Cir. 1998), supra Part III.A.1.

3. United States v. Senchenko, 133 F.3d 1153 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998), supra Part III.A.6.

(1) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).

(2) Id. [sections] 9606(a) (1994).

(3) Id. [sections] 9606(b)(2)(A).

(4) Id. [sections] 9606(b)(2)(B).

(5) Id. [sections] 9606(b)(2)(D).

(6) Id. [sections] 9607(a)(3)-(4).

(7) Id. [sections] 9601(14).

(8) 40 C.F.R. [sections] 302.4 (1998).

(9) Id. [sections] 401.15 (established pursuant to the Federal Water Pollution Control Act, 33 U.S.C. [sections] 1321(b)(4) (1994)).

(10) 42 U.S.C. [sections] 9601(22) (1994).

(11) Id. [sections] 9607(a)(3).

(12) Resource Conservation and Recovery Act of 1976, 42 U.S.C. [sections] 6903(3) (1994) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).

(13) Id. [sections] 6903(34).

(14) 42 U.S.C. [sections] 9606(a) (1994).

(15) Atchison, Topeka & Santa Fe Ry. Co. v. Brown & Bryant, Inc., 132 F.3d 1295 (9th Cir. 1997), amended by 159 F.3d 358 (9th Cir. 1998); see also 27 ESVTL. L. 577, 582-83 (1997).

(16) 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).

(17) 159 F.3d at 361 (citing Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1263 (9th Cir. 1990)).

(18) Id.

(19) Id.

(20) 132 F.3d at 1301.

(21) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).

(22) Id. [sections] 9606(a)(1994).

(23) Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152:53 (9th Cir. 1989).

(24) 42 U.S.C. [sections] 9605 (1994).

(25) Id. [sections] 9613(j)(2).

(26) Id. [sections] 9607(a)(4)(A).

(27) United States v. Chapman, 146 F.3d 1166, 1176 (9th Cir. 1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1933)).

(28) 40 C.F.R. [sections] 300.415(a)(1) (1998).

(29) Id. [sections] 300.415(b)(2).

(30) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).

(31) United States v. Omega Chem. Corp., 156 F.3d 994, 995 (9th Cir. 1998) (quoting Letter from Omega Chemical Corporation to the Environmental Protection Agency and potentially responsible parties (May 24, 1995)).

(32) Id.

(33) Id. at 994.

(34) Id. at 998.

(35) Id. at 999.

(36) 42 U.S.C. [sections] 9604(e) (1994).

(37) 156 F.3d at 1000.

(38) Id.

(39) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(40) Resource Conservation and Recovery Act of 1976, 42 U.S.C. [subsections] 6901-6992k (1994 & Supp. III 1997) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).

(41) Id. [sections] 6943 (1994).

(42) Resource Inv., Inc. v. United States Army Corps of Engineers, 151 F.3d 1162, 1164 (9th Cir. 1998).

(43) Id. at 1164-65.

(44) 33 U.S.C. [sections] 1344 (1994).

(45) 151 F.3d at 1165.

(46) Id. at 1168 (quoting [sections] 404 of the Clean Water Act, 33 U.S.C. [sections] 1344 (1994)).

(47) 33 C.F.R. [sections] 323.2(c) (1998).

(48) 33 C.F.R. [sections] 323.2(e) (1998).

(49) 151 F.3d at 1169.

(50) 33 C.F.R. [sections] 320.1(a)(5) (1998).

(51) Letter from William R. Gianelli, Assistant Secretary of the Army for Civil Works, to William Ruckelshaus, Administrator, United States Environmental Protection Agency (Mar. 19, 1984).

(52) 151 F.3d at 1169.

(53) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(54) Id. [sections] 1342 (1994).

(55) Russian River Watershed Protection Comm. v. City of Santa Rosa, No. C-95-1550, 1997 WL 9868, at *1 (N.D. Cal. 1997), aff'd, 142 F.3d 1136 (9th Cir. 1998).

(56) Id. at *5.

(57) 142 F.3d at 1142.

(58) Id. at 1140 (quoting City of Santa Rosa's NPDES permit).

(59) 484 U.S. 49 (1987).

(60) See FED. R. CIV. P. 54(d).

(61) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(62) Id. [sections] 1319(c)(2) (1994).

(63) 40 C.F.R. [sections] 403.5(c) (1998).

(64) Id. [sections] 403.5(d).

(65) 33 U.S.C. [sections] 1319(c)(2) (1994).

(66) OLYMPIA, WA., MUNICIPAL CODE [sections] 13.20.490 (1997).

(67) WASH. ADMIN. CODE [sections] 173-216-060(2)(A) (1997).

(68) 40 C.F.R. [sections] 403.5(b)(8) (1998).

(69) United States v. Iverson, 162 F.3d 1015, 1020 (9th Cir. 1998).

(70) See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1493-94 (9th Cir. 1996).

(71) United States v. Doremus, 888 F.2d 630, 634 (9th Cir. 1989).

(72) 33 U.S.C. [sections] 1319(c)(2) (1994).

(73) Id. [sections] 1319(c)(6).

(74) United States v. Dotterweich, 320 U.S. 277 (1943).

(75) United States v. Park, 421 U.S. 658, 668 (1975).

(76) 162 F.3d at 1027 (citing FED. R. EVID. 404(b)).

(77) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(78) Id. [sections] 1362(6) (1994).

(79) Atomic Energy Act of 1954, 42 U.S.C. [sections] 2014(e)(2) (1994).

(80) 40 C.F.R. [sections] 122.2 (1998).

(81) Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (amending 42 U.S.C. [sections] 2014(e) (1994)).

(82) 42 U.S.C. [sections] 2022(e) (1994).

(83) 426 U.S. 1 (1976).

(84) 40 C.F.R. [sections] 230.3(0) (1998).

(85) Pub. L. No. 96-199, 94 Stat. 74 (1980) (codified as amended at 16 U.S.C. [sections] 410ff (1994 & Supp. III 1997)).

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

(87) 16 U.S.C. [sections] 410ff-1(e) (Supp. III 1997).

(88) Id.

(89) 588 F.2d 267 (9th Cir. 1978).

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

(91) FED. R. CIV. P. 19(a).

(92) Kettle Range Conservation Group v. United States Bureau of Land Management, 150 F.3d 1083, 1086 (9th Cir. 1998) (alteration in original) (quoting FED. R. CIV. P. 19(a)).

(93) Id. (alteration in original) (quoting Fund for Animals v. Lujan, 962 F.2d 1391, 1397 (9th Cir. 1992)).

(94) Id. at 1087 (alteration in original) (quoting Kescoli v. Babbitt, 101 F.3d 1304, 1311 (9th Cir. 1996)).

(95) Id.

(96) Id.

(97) Id. at 1088 (Reinhardt, J., concurring).

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

(99) Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998).

(100) 40 C.F.R. [sections] 508.25(a)(1) (1998).

(101) The court principally addressed Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (timber sale and access road are connected actions), and Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988) (same).

(102) 161 F.3d at 574.

(103) National Historic Preservation Act of 1966, 16 U.S.C. [subsections] 470-470x-6 (1994 & Supp. III 1997).

(104) Id. [sections] 470(f) (1994).

(105) 161 F.3d at 582.

(106) Department of Transportation Act of 1966, Pub. L. No. 89-670, 80 Stat. 931 (codified as amended in scattered sections of 49 U.S.C. (1994)).

(107) 49 U.S.C. [sections] 303(c) (1994).

(108) 161 F.3d at 582 (quoting FAA's final EA).

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

(110) National Historic Preservation Act of 1966, 16 U.S.C. [subsections] 470-470x-6 (1994 & Supp. III 1997).

(111) Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1157 (9th Cir. 1998) (citing Bennett v. Spear, 520 U.S. 154 (1997)).

(112) 5 U.S.C. [sections] 702 (1994).

(113) Bennett v. Spear, 520 U.S. at 165.

(114) 40 C.F.R. [sections] 1500.1 (1998).

(115) 36 C.F.R. [sections] 800.5(e) (1998).

(116) 28 U.S.C. [subsections] 2671-2680 (1994).

(117) Id. [sections] 2680.

(118) Id.

(119) Id.

(120) See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813-14 (1984).

(121) Parsons v. United States, 811 F. Supp. 1411, 1421 (E.D. Cal. 1992); Defrees v. United States, 738 F. Supp. 380, 384 (D. Or. 1990).

(122) Miller v. United States, 163 F.3d 591, 594-95 (9th Cir. 1998) (quoting the Forest Service's Mobilitzation Guide).

(123) Id. at 595.

(124) Id. at 596 (citing Parsons, 811 F. Supp. at 1420, and Defrees, 738 F. Supp. at 385).

(125) 352 U.S. 315 (1957).

(126) Id. at 317-18.

(127) 50 C.F.R. pt. 679 (1998); see also Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 57 Fed. Reg. 57,130 (Dec. 2, 1992); Pacific Halibut Fisheries; Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands; Limited Access Management of Fisheries off Alaska, 58 Fed. Reg. 59,375 (Nov. 9, 1993).

(128) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

(129) 424 U.S. 319, 335 (1976).

(130) For further discussion of Natural Resources Defense Council v. Houston, see Nathan Baker, Water, Water, Everywhere, and at Last a Drop for Salmon?, 29 ENVTL. L. 607 (1999).

(131) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

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

(133) 43 U.S.C. [sections] 383 (1994).

(134) CAL. FISH AND GAME CODE [sections] 5937 (West 1998).

(135) 16 U.S.C. [sections] 1536(a)(2) (1994).

(136) Id. [sections] 1536(d).

(137) See id. [sections] 1536(a)(2).

(138) 65 F.3d 1502 (9th Cir. 1995).

(139) 43 U.S.C. [sections] 485h-1(1) (1994).

(140) Id. [sections] 485h-1(4).

(141) Id. [sections] 485h(e).

(142) 50 F.3d 677 (9th Cir. 1995).

(143) 43 U.S.C. [sections] 485h-1(4) (1994).

(144) 50 C.F.R. [sections] 402.14(g)(6), (j) (1998).

(145) Administrative Procedure Act, 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). The arbitrary and capricious standard is found at section 706(2)(A).

(146) Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988).

(147) Reclamation Projects Authorization and Adjustments Act of 1992 (CVPIA), Pub. L. No. 102-575, [subsections] 3404(b)(1), 3409, 106 Stat. 4600, 4709, 4730.

(148) 438 U.S. 645 (1978), on remand, 521 F. Supp. 491 (E.D. Cal. 1980) and 509 F. Supp. 867 (E.D. Cal. 1981), aff'd in part, rev'd in part, 694 F.2d 1171 (9th Cir. 1982).

(149) CAL. FISH AND GAME CODE [sections] 5937 (West 1998).

(150) CVPIA [sections] 3406(b)(1), 106 Stat. at 4714.

(151) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(152) Id. [sections] 1536(a)(2).

(153) Id. [sections] 1538.

(154) Administrative Procedure Act, 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). The arbitrary and capricious standard is found at section 706(2)(A).

(155) 16 U.S.C. [sections] 1540(g)(2)(A)(i) (1994).

(156) See 5 U.S.C. [sections] 706(2)(A) (1994).

(157) 16 U.S.C. [sections] 1536(b)(3)(A) (1994); see also 50 C.F.R. [sections] 402.14(h)(3) (1998).

(158) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(159) 16 U.S.C. [subsections] 701, 3371-3378 (1994 & Supp. III 1997).

(160) 16 U.S.C. [sections] 1538(a)(1)(G) (1994).

(161) Id. [sections] 1540(b)(1).

(162) 16 U.S.C. [subsections] 3372(a)(1), 3373(d)(2) (1994).

(163) 16 U.S.C. [sections] 1533(d) (1994).

(164) Id. [sections] 1533(f).

(165) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

(166) United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998).

(167) 16 U.S.C. [sections] 1539(j) (1994).

(168) Id. [sections] 1539(j)(1).

(169) Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60,252, 60,256 (Nov. 22, 1994). 170 142 F.3d at 1179 (O'Scannlain, J., concurring).

(171) Id. at 1176.

(172) 50 C.F.R. [sections] 17.84(i)(1)-(2) (1998).

(173) 142 F.3d at 1176.

(174) U.S. CONST. amend. V.

(175) 142 F.3d at 1176 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).

(176) For further discussion of United States v. Senchenko, see Timothy M. Sullivan, Inadequate Analysis Leading to an Accurate Conclusion: The Ninth Circuit's Cursory Treatment of the Constitutionality of the Lacey Act in United States v. Senchenko, 29 ENVTL. L. 743 (1999).

(177) 16 U.S.C. [subsections] 701, 3371-3378 (1994 & Supp. III 1997).

(178) United States v. Senchenko, 133 F.3d 1153, 1155 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998).

(179) WASH. REV. CODE [sections] 232-12-047 (1998).

(180) 133 F.3d at 1156.

(181) Id. at 1157 (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989)).

(182) FED. R. EVID. 702.

(183) 18 F.3d 649 (9th Cir. 1994).

(184) 133 F.3d at 1158.

(185) Id.

(186) Id.

(187) Id.

(188) 438 U.S. 154 (1978).

(189) 133 F.3d at 1158 (quoting Franks v. Delaware, 438 U.S. at 155).

(190) For further discussion of Blue Mountains Biodiversity Project v. Blackwood, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 ENTVL. L. 639 (1999).

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

(192) 40 C.F.R. [sections] 1508.27(b)(4)-(5) (1998).

(193) Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998), cert. denied, 119 S. Ct. 2337 (1999).

(194) Id.

(195) Id. (quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)).

(196) 40 C.F.R. [sections] 1508.28 (1998).

(197) 161 F.3d at 1215.

(198) Id.

(199) Id.

(200) For further discussion of Friends of Southeast's Future v. Morrison, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 ENVTL. L. 639 (1999).

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

(202) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(203) Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998).

(204) California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).

(205) 153 F.3d at 1063 (quoting Conner v. Burford, 848 F.2d 1441, 1449 (9th Cir. 1988)).

(206) 137 F.3d 1372 (9th Cir. 1998).

(207) The ROD stated:

   On January 10, 1997, a federal court held in Friends of Southeast's Future
   v. Morrison, No. J96-011-CV (District of Alaska) that the Ushk Bay Timber
   Sale project did not properly undertake an "Area Analysis" the court found
   was required by the 1979 TLMP. The Court also upheld the sale against
   claims that it violated the NEPA. The Forest Service continues to believe
   that the Ushk Bay Timber Sale satisfied all the requirements of the 1979
   TLMP and has appealed the district court's decision. In any event, this
   Record of Decision and the revised Plan remove any requirements for "Area
   Analysis." The Ushk Bay timber sale and any similarly situated timber sale
   are specifically allowed to proceed in accordance with the standards and
   guidelines that were in effect at the time the NEPA decision document for
   the project was signed, but without undertaking any "Area Analysis."

153 F.3d at 1070.

(208) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

(209) 153 F.3d at 1070 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)).

(210) For further discussion of Idaho Sporting Congress v. Thomas, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 ENVTL. L. 639 (1999).

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

(212) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(213) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

(214) Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 1998).

(215) Price Rd. Neighborhood Ass'n v. United States Dep't of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997).

(216) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(217) IDAHO CODE [sections] 39-3603 (1998).

(218) 33 U.S.C. [sections] 1323(a) (1994).

(219) IDAHO CODE [sections] 39-3603 (1998).

(220) Id. [sections] 39-3601.

(221) 36 C.F.R. [sections] 219.19(a)(1)-(7) (1998).

(222) 16 U.S.C. [sections] 1604(i) (1994).

(223) For further discussion of Neighbors of Cuddy Mountain v. United States Forest Service, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 ENVTL. L. 639 (1999).

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

(225) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(226) Id. [sections] 1604(i) (1994); see also 36 C.F.R. [sections] 219.10(e) (1998).

(227) See 40 C.F.R. [sections] 1508.7 (1998).

(228) See id. [sections] 1502.24.

(229) Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998).

(230) Id. at 1381.

(231) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997). "Final agency action" is discussed at section 704.

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

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

(234) 523 U.S. 726 (1998).

(235) Oregon Natural Resources Council Action v. United States Bureau of Land Management, 150 F.3d 1132, 1138 (9th Cir. 1998).

(236) 467 U.S. 837 (1984).

(237) Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1260 (E.D. Wash. 1997), aff'd, Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).

(238) Treaty with the Yakimas, June 9, 1855, U.S.-Yakima Nation of Indians, art. III, 12 Stat. 951, 953.

(239) WASH. REv. CODE [subsections] 46.16.070, .16.135, .44.095 (1998).

(240) Id.

(241) Cree v. Flores, 157 F.3d at 765 (citing WASH. REV. Corm [subsections] 46.44.047, .44.095 (1998)).

(242) See generally Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979); Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Tulee v. Washington, 315 U.S. 681 (1942); United States v. Winans, 198 U.S. 371 (1905); Jones v. Meehan, 175 U.S. 1 (1899).

(243) For further discussion of Montana v. United States Environmental Protection Agency, see Regina Cutler, To Clear the Muddy Waters: Tribal Regulatory Authority Under Section 518 of the Clean Water Act, 29 ENVTL. L. 721 (1999).

(244) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(245) Id. [subsections] 1313, 1377(e) (1994).

(246) Id. [sections] 1341(a).

(247) Amendments to the Water Quality Standards Regulation that Pertain to Standards on Indian Reservations, 56 Fed. Reg. 64,876, 64,877 (Dec. 12, 1991).

(248) Id. at 64,879.

(249) 450 U.S. 544 (1981).

(250) Id. at 556.

(251) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

(252) Montana v. United States Environmental Protection Agency, 137 F.3d 1135, 1140 (9th Cir. 1998).

(253) 492 U.S. 408 (1989).

(254) 520 U.S. 438 (1997).

(255) See Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).

(256) Albuquerque v. Browner, 97 F.3d 415, 423 (10th Cir. 1996).

(257) 384 F. Supp. 312 (W.D. Wash. 1974).

(258) 459 F. Supp. 1020 (W.D. Wash. 1978).

(259) 384 F. Supp. at 419.

(260) Id. at 398.

(261) Id. at 360.

(262) Id.

(263) For further discussion of United States v. Washington, see Mariel J. Combs, United States v. Washington: The Boldt Decision Reincarnated, 29 ENVTL. L. 653 (1999).

(264) Treaty of Medicine Creek, Dec. 26, 1854, U.S.-Nisquallys, art. III, 10 Stat. 1132, 1133 (1854).

(265) See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1978); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990).

(266) Treaty of Medicine Creek, supra note 264, art. III, at 1133.

(267) Choctaw Nations of Indians v. United States, 318 U.S. 423, 431-32 (1943).

(268) See generally United States v. Washington, 969 F.2d 752 (9th Cir. 1992); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990); United States v. Washington, 520 F.2d 676 (9th Cir. 1976).

(269) See United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974).

(270) United States v. Washington, 135 F.3d 618, 634 (9th Cir. 1998) (quoting United States v. Winans, 198 U.S. 371, 381 (1905)), amended by 157 F.3d 630 (9th Cir. 1998), cert. denied, 119 S. Ct. 1376 (1999).

(271) Id. at 635 (quoting Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 682 (1979)).

(272) Treaty of Medicine Creek, supra note 264, art. III, at 1133.

(273) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

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

(275) FED. R. CIV. P. 19.

(276) Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153 (9th Cir. 1998).

(277) Id. at 1154.

(278) Id.

(279) Id.

(280) Id.

(281) Id. at 1155.

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

(283) Fallon Paiute Shoshone Tribes Water Rights Settlement Act of 1990, Pub. L. No. 101-618, 104 Stat. 3289.

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

(285) Id.

(286) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. III 1997).

(287) 504 U.S. 555 (1992).

(288) Id. at 560.

(289) Id.

(290) Id.

(291) Id.

(292) 150 F.3d at 1077 (quoting Defenders of Wildlife, 504 U.S. at 572 n.7).

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

(294) 48 F.3d 1500.

(295) 42 U.S.C. [sections] 4332(2)(C) (1994).

(296) Id.

(297) 150 F.3d at 1079.

(298) See 42 U.S.C. [sections] 4332(2)(C) (1994).

(299) 150 F.3d at 1079.

(300) 497 U.S. 871 (1990).

(301) Id. at 887-89.

(302) 150 F.3d at 1080.

(303) Id.

(304) Id. at 1080-81.

(305) FED. R. CIV. P. 24.

(306) 150 F.3d at 1082.

(307) For the first attempt, see Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995).

(308) Dodd v. Hood River County, 136 F.3d 1219, 1223 (quoting State Land Conservation & Dev. Comm'n Goal 4, OR. ADMIN. R. 660-015-0000(4) (1983)).

(309) See OR. CONST. art. I, [sections] 18.

(310) Dodd v. Hood River County, 836 P.2d 1373 (Or. Ct. App.), aff'd, 855 P.2d 608 (Or. 1992).

(311) Dodd v. Hood River County, 855 P.2d 608 (Or. 1992).

(312) 136 F.3d at 1228 (citing Dodd v. Hood River County, 855 P.2d at 615).

(313) Id. at 1229-30.

(314) 483 U.S. 825 (1987) (scenic values, landmarks, and public safety).

(315) 447 U.S. 255 (1980) (protection against air, noise and water pollution, traffic, and other consequences of urban sprawl).

(316) 136 F.3d at 1230.3