Case summaries.

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

1. United States v. Stone Container Corp., 196 F.3d 1066 (9th Cir. 1999), infra Part IV.D.

B. Hazardous Waste

1. Boeing Co. v. Cascade Corp., 207 F.3d 1177 (9th Cir. 2000).

Boeing Company sued Cascade Corporation in a contribution action under section 9613 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(1) to recover pollution cleanup costs. Cascade appealed, challenging the trial court's determination of causation, the allocation of costs, and the propriety of declaratory judgments in CERCLA contribution actions.(2) Although Boeing received a declaratory judgment allocating costs at the trial court level, it cross-appealed regarding the amount of its judgment.

Both Boeing and Cascade used chlorinated solvents on their adjoining Portland, Oregon properties. The companies historically disposed of the spent solvents using then-acceptable methods of spreading the chemicals on the ground, allowing them to evaporate or drain away, and storing the solvents in underground tanks or barrels. These activities resulted in significant groundwater contamination. By monitoring wells, Boeing discovered the contamination of the underlying aquifer in 1985. The Environmental Protection Agency (EPA) responded to the contamination and ordered an investigation of the contamination source, resulting in the charges that were at issue in the instant case. Similarly, in 1986, Cascade discovered chlorinated solvent pollution on its own land and initiated a cleanup action with the Oregon Department of Environmental Quality. Both companies took prompt action to remedy the pollution.

Cascade did not deny using chlorinated solvents, nor did it deny that some of its solvents were polluting the aquifer. However, Boeing had also used the chlorinated solvents found in the contaminated groundwater. Therefore, Cascade argued that it could not be held liable for EPA's initial response costs under traditional tort concepts of sine qua non--or "but for"(3)--causation. Cascade asserted that CERCLA liability hinges on such causation, and, because Boeing would have incurred response costs irrespective of whether Cascade had polluted the aquifer, no liability attached to Cascade.

CERCLA allows parties who incur the costs of cleanup actions to sue other polluters for contribution when the other party "causes the incurrence of response costs."(4) The Ninth Circuit held that the sine qua non analysis is not the correct method of interpreting CERCLA liability defined by the term "cause[]" in section 9607(a)(4).(5) "[U]nder the rubric of causal overdetermination"(6) adopted by the court in this case, both Cascade and Boeing caused the incurring of response costs as a matter of law. Therefore, because Cascade and Boeing shared the same degree of fault and either company's conduct would have resulted in the same costs, Cascade was liable for its pro rata share of the response costs.

Cascade's second major attack on the district court's judgment focused on the allocation of costs according to the ratio determined by the trial court The trial court found that each company contributed to the groundwater pollution according to the weight of the amount of chemicals used by the respective companies. This resulted in a 70:30 cost ratio, with Cascade bearing most of the responsibility. Cascade argued that each company should only be liable for the pollution on their respective lands. However, because Cascade is located uphill from Boeing, some amount of Cascade's contamination migrated downhill from Cascade's property onto Boeing's land. After holding that Boeing's accounting of cleanup costs was sufficient under the national contingency plan,(7) the Ninth Circuit examined the 70:30 ratio established by the trial court for the cleanup itself.

CERCLA allows the trial court to determine the allocation of costs in CERCLA response actions.(8) The Ninth Circuit reviewed the selection of factors considered in the apportionment for abuse of discretion. Under this deferential standard, the Ninth Circuit held that volume was an appropriate measure of responsibility in the instant case, and that the trial court was within its discretion to use this measure. The Ninth Circuit further reviewed the allocation for clear error, according to the factors determined by the trial court Because "[w]ater flows downhill,"(9) the evidence was sufficient to support the trial court's conclusion, and, because most other factors were inapposite to the fact pattern, the Ninth Circuit held that the apportionment was reasonable.

In a third argument, Cascade focused on the equity of the district court crediting Boeing for certain costs when Cascade did not receive credit for the same type of costs. However, Cascade failed to make a cost recovery request to the trial court and did not petition for a correction following the judgment. The issue was not preserved and, therefore, could not be adjudicated by the Ninth Circuit.

Finally, Cascade asserted that the district court lacked the statutory authority to issue declaratory judgments in CERCLA contribution actions. Although case law allows for declaratory judgments under section 9607(10) of CERCLA cost-recovery actions, the Act does not specifically authorize such judgments in the contribution context.(11) However, the Ninth Circuit held that declaratory relief is a useful tool in CERCLA actions and that it is consistent with the purposes of the statute. Furthermore, the panel held that, because CERCLA requires declaratory judgments in one context,(12) it is reasonable to allow such judgments where the statute is silent on the issue. Ultimately, providing declaratory relief is within the discretion of the trial court, and the Ninth Circuit found no abuse of that discretion in the instant case.

Boeing's cross-appeal challenged the inclusion of a settlement that Boeing received against the total costs of the clean up. The trial court deducted the amount of the settlement from the total cleanup cost and then allocated the remainder of the costs to each party. Boeing argued on appeal that the total cost should instead be apportioned between Cascade and Boeing first, and the settlement amount should then be applied to Boeing's liability alone. Essentially, because the settlement came from Boeing's predecessors in interest, and the total share of pollution from Boeing and its predecessors was 30 per cent, the settlement should not be deducted from the overall cleanup costs. Thus, Boeing's total liability would be reduced by the amount of the settlement. Using the 70:30 ratio as a guide, the Ninth Circuit agreed with Boeing that its total contribution to the cleanup should be offset by the amount of the settlement. The panel reminded the case to the district court to correct the judgment.

2. United States v. Van Loben Sels, 198 F.3d 1161 (9th Cir. 1999), infra Part LD.

C. National Environmental Policy Act

1. American Rivers v. Federal Energy Regulatory Commission, 201 F.3d 1186 (9th Cir. 2000), infra Part II.C.

2. Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999), infra Part II.E.

3. West v. Secretary of the Department of Transportation, 206 F.3d 920 (9th Cir. 2000).

A pro se plaintiff appealed the district court's dismissal of his claims, which challenged a Federal Highway Administration (FHWA) decision to categorically exclude a two-stage highway interchange project from review under the National Environmental Policy Act (NEPA).(13) The project involved building a new highway interchange on Interstate 5 (1-5) between Seattle and Tacoma, and it was broken into two stages of construction: Stage One involved construction of the interchange, while Stage Two, which was "unfounded" and "only vaguely defined,"(14) involved upgrading and re-routing the Stage One interchange. West alleged that the agency's decision was arbitrary and capricious under the Administrative Procedure Act,(15) and he sought both a declaration that the interchange was not categorically excluded from NEPA analysis and an injunction to cease work on the project until an environmental impact statement (ELS) was prepared. Reversing the district court, the Ninth Circuit determined that the categorical exclusion (CE) was in error, ordered that the appropriate NEPA environmental review be undertaken for Stage One of the project, and vacated the district court decision with respect to the second stage.

The court first dismissed co-defendant Weyerhauser's claim of mootness. Although Stage One had been completed at the time of the appeal, Stage Two had not yet begun. The court stated that if a NEPA violation were found, then the court's remedial powers would include remanding for additional environmental review and even ordering the interchange to be taken down.

The court held that the project triggered NEPA in this case because the FHWA is required to approve any new points of access to or exits from the federal highway system. The issue of whether a CE provides the appropriate level of NEPA review for a new highway interchange appeared to be one of first impression. Under NEPA regulations, each agency develops its own criteria to determine what level of environmental review its actions warrant.(16) The FHWA's NEPA regulations state that a CE may be used for actions that "do not involve significant environmental impacts' and

   do not induce significant impacts to planned growth or land use for the
   area; do not require the relocation of significant numbers of people; do
   not have a significant impact on any natural, cultural, recreational,
   historic or other resource; do not involve significant air, noise, or water
   quality impacts; do not have significant impacts on travel patterns; or do
   not otherwise, either individually or cumulatively, have any significant
   environmental impacts.(17)

The FHWA regulations specifically describe two types of CEs: 1) a list of twenty actions Onto which the parties agreed the interchange did not fit) that meet the criteria, and 2) a "documented categorical exclusion" (DCE), which West claimed was applicable. A DCE is applicable where an action meets the overriding definition of a CE(18) and where the applicant--the Washington State Department of Transportation in this case--submits documentation that demonstrates compliance with the CE criteria.(19)

The Ninth Circuit rejected the defendants' argument that the DCE example, "Approvals for changes in access control,"(20) fit the interchange action. Because that phrase is not defined in the FHA regulations, the court looked to the non-exclusive list of actions identified in the regulations as DCEs, as well as the itemized list of categorically excluded actions. Analyzing these materials, the court determined that the types of projects described "suggest strongly that a DCE is not appropriate for a highway interchange construction project."(21) The court reached this conclusion because 1) the magnitude and scale of the interchange compared to that of the projects provided as example DCEs and CEs was much larger, and 2) the FHWA's own regulations limiting the use of CEs recommended against such use here. The FHWA regulations state that use of a CE in situations where an action will have "significant impacts on travel patterns" is not permitted.(22) As the purpose of the interchange was clearly to have significant impacts on travel patterns, the interchange failed the first part of the test for a DCE--meeting the general CE criteria--and was thus inconsistent with the regulation. The court declined to establish a per se rule that all highway interchanges require an environmental assessment, Instead, the court held that "an interchange designed to have a substantial effect on traffic patterns does not qualify for a documented categorical exclusion."(23)

Finally, in considering the appropriate remedy--which was particularly difficult because Stage One of the project had been completed and the interchange was open to regular traffic--the court determined that an order requiring the appropriate NEPA review was still useful. Because modification of operations of the interchange or mitigation of its effects by changes to the plans in Stage Two could potentially mitigate any adverse environmental effects, the environmental analysis was potentially useful and would not necessarily require the interchange to be torn down. Thus, the court ordered that the NEPA review for Stage One be performed, and that any district court decision with respect to Stage Two be vacated because that stage's plans were not only incomplete at the time of trial, but they were also sufficiently segregated from Stage One as to require separate NEPA analysis.

The dissent argued that the case was moot, not yet ripe for adjudication, and correctly decided by the district court if it had been justiciable. With respect to mootness, the dissent claimed that because the construction of the interchange had ended and motorists had been using the interchange since October 1997, the environmental harm complained of had been accomplished and could not be undone.(24) The dissent also suggested that any challenges to Stage Two of the project were not ripe for adjudication because that portion of the project was not yet funded, designed, or scheduled.(25) Finally, the dissent argued that, even if the case was ripe and not moot, the record supported the district court's decision that the agency decision was not arbitrary or capricious. According to the dissent, the FHWA's interpretation of the term "access control" was permissible, because "[an] agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation."(26)

D. Clean Water Act

1. Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999).

Defenders of Wildlife (petitioners) objected to draft National Pollution Discharge Elimination System (NPDES) permits prepared by the Environmental Protection Agency (EPA) for Tempe, Tucson, Phoenix, and Pima County, Arizona The petitioners claimed that the permits must contain numeric effluent limitations to ensure strict compliance with state water quality standards. To address these objections, EPA added a storm water management program to each permit to ensure compliance with Arizona water quality standards. With the Arizona Department of Environmental Quality's approval, EPA determined that these additions would ensure strict compliance and issued the permits. Following this issuance, the petitioners requested an evidentiary hearing with EPA's regional administrator concerning only the legal question of whether numeric limitations were required to ensure strict compliance with state water quality standards under the Clean Water Act (CWA).(27) The regional administrator denied this request. Petitioners then filed a petition for review with the Environmental Appeals Board (EAB). The EAB denied the petition, holding that NPDES permits need not contain numeric effluent limitations to ensure strict compliance with state water quality standards. The petitioners moved for reconsideration by the EAB but this motion was also denied. Consequently, petitioners sought review of EPA's decision in the Ninth Circuit pursuant to the Clean Water Act provision authorizing judicial review of EPA decisions "issuing or denying any [NPDES] permit"(28)

In its review of EPA's decision, the court acknowledged the controversy surrounding the treatment of storm-water discharges under the CWA and referenced EPA's previous difficulty in promulgating regulation for municipal storm-water discharge. Under the 1987 amendments to the CWA, Congress created permit requirements for storm-water discharge from industrial activities(29) and for municipal sewer systems serving populations over 100,000.(30) The Act sets different standards for storm-water discharge permits for each of these sources. For industrial dischargers, the permit must "meet all applicable provisions of this section and section 1311 of this title."(31) However, for municipal storm-water discharge, permits "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system design and engineering methods, and such other provisions as the Administrator ... determines appropriate for the control of such pollutants."(32)

The petitioners maintained that the difference in wording between the two provisions demonstrates that the statute is ambiguous as to whether Congress intended municipal storm water discharge to strictly comply with state water quality standards under Clean Water Act section 301(b)(1)(C).(33) Applying the two-step test for statutory interpretation established in Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron),(34) the court held that the statutory language was unambiguous. The first step of the Chevron test is to use the "traditional tools of statutory construction' to determine whether Congress's intent in the statute is clear. If Congress's intent is clear, then no examination of whether an agency's decision is "arbitrary, capricious, or manifestly contrary to the statute" is required.(35)

Under traditional statutory construction, "where Congress includes particular language in one section of the statue but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion."(36) Accordingly, the exclusion of any reference to section 301(b)(1)(C)'s state water quality standard requirements in section 402(p)(3)(B)(iii) indicates that Congress did not intend to require municipal storm-water discharges to meet applicable state water quality standards. Furthermore, because Congress included language in section 402(p)(3)(B)(iii) requiring municipal storm water dischargers to "reduce the discharge of pollutants to the maximum extent practicable,"(37) to require municipal discharge to comply with a stricter standard under section 301(b)(1)(C) would render section 402(p)(3)(B)(iii) superfluous.

In Guam ex rel. Guam Economic Development Authority v. United States,(38) the Ninth Circuit held that an interpretation of a statute that withdraws effect from any provision of that statute is unacceptable.(39) Thus, in the present case the court held that petitioners' interpretation of the Act was impermissible. In closing, the court referred to precedent established in Natural Resources Defense Council, Inc. v. Environmental Protection Agency(40) that under the 1987 CWA amendments, Congress retained the existing controls for industrial storm water discharge but promulgated new standards for municipal discharges.(41) The court offered this holding as authority for the assertion that the differing standards for municipal and industrial storm water discharge are intentional.

Finally, the court considered Petitioners' claim that EPA may not impose numerical limits or other controls to ensure strict compliance with state water quality standards. The court dismissed the claim by referring to language in section 402(p)(3)(B)(iii) requiring permits for municipal storm sewer discharge to include "such other provisions as the Administrator ... determines appropriate for the control of such pollutants."(42) This provision allows EPA the broad discretion whether to require strict compliance with state standards, if necessary to control pollution. With this discretion in mind, the court determined that EPA's issuance of the permits had been proper.

2. United States v. Hagberg, 207 F. 3d 569 (9th Cir. 2000).

In 1997, Jamie Hagberg pumped sewage material from the septic tank of a local tavern and subsequently disposed of the sewage material along a 1.6-mile stretch of road near Lavina, Montana. Hagberg was indicted for violating section 1345 of the Clean Water Act(43) for knowingly disposing of domestic sewage material on a public contact site. Section 1345(e) makes it "unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to ... this section, except in accordance with such regulations."(44) The penalty for violation of section 1345 is punishment of "a fine of not less than $5,000 nor more than $50,000 per day of violation, or ... imprisonment for not more than 3 years, or ... both."(45)

The United States first brought the case against Hagberg in the United States District Court for the District of Montana. In his motion for dismissal, Hagberg argued that the tavern's septic tank was not a "publicly owned treatment works or any other treatment works treating domestic sewage" as required for criminal liability under section 1345.(46) The district court agreed with Hagberg, citing three reasons: First, the sewage material that Hagberg dumped did not undergo any sort of treatment described in regulations promulgated pursuant to section 1345.(47) Second, the tavern's septic tank was not a "treatment works" as described in the regulations.(48) Third, the regulations were not meant to include the internal processes of domestic septic tanks.(49) The district court granted the motion to dismiss, and the United States appealed to the Ninth Circuit.

This was a case of first impression for the Ninth Circuit. The Ninth Circuit reviewed the district court's interpretation of section 1345 and its related regulations under a de novo standard of review. The court first reviewed section 1345 in its entirety and determined that Congress established two means for the administration of disposal and use of sewage sludge by the Environmental Protection Agency (EPA).(50) The first is a permit system that requires permits for any disposal of sewage sludge from treatment works(51) if such disposal would result in the addition of a pollutant to any navigable waters.(52) The second is a set of EPA-created regulations providing guidelines for the use and disposal of sludge.(53) The court applied the regulations created pursuant to section 1345(d) to disposal and use of sewage sludge both with and without permits.(54)

The Ninth Circuit decided on the application of the regulations to all use and disposal of sewage material because the regulations contain a direct enforcement provision, which states, that "[n]o person shall use or dispose of sewage sludge through any practice for which requirements are established ... except in accordance with such requirements."(55) Additionally, the court interpreted sections 1345(f)(1)-(2) to require compliance with the regulations when permits would normally be required and when EPA's Administrator issues permits solely to ensure sewage handlers' compliance with the regulations.(56) Consequently, the court held that EPA intended to apply the regulations for treatment works to all handlers of sewage material.

Hagberg was indicted for the violation of section 1345(e), so the direct enforcement provision and the definitions found in the related regulations were implicated. The Ninth Circuit considered the regulatory definitions of "sewage sludge" and "domestic septage"(57) in its analysis, and the court determined that the material Hagberg transported and released was sewage sludge. The court also considered the regulatory definitions of "treatment" and "treatment works"(58) and determined that these definitions, in context with the section's other regulatory definitions, included a domestic septic tank for puposes of the direct enforcement provision. The court determined that Hagberg's receipt of sewage material from the tavern and his handling of the material placed him within the jurisdiction of the statute and its piecemeal regulatory definitions.

Hagberg argued that the correct definition of "treatment works treating domestic sewage" is given earlier in the regulations for section 1345 and excludes septic tanks and other similar devices.(59) However, the court rejected this argument because the regulation clearly states that the earlier definition is used solely in cases relating to treatment works that are covered by a permit under section 1345(a)(60) Nevertheless, the court recognized the inconsistency in EPA's logic. EPA stated that septic tank owners are excluded from the permit system because EPA wanted technical standards to apply only to septic treatment and processing, not to generation.(61) The direct enforcement provision, on the other hand, imposes technical standards on septic tank owners because septic tanks are considered treatment works under the regulatory definitions for section 1345(e).(62) The court resolved this inconsistency by citing the plain meaning tenet of statutory construction, and noting that where the court finds that a statute's meaning is plain on its face, contrary or inconsistent legislative history does not modify the plain meaning.

Consequently, the court held that disposers of sewage pumped from domestic septic tanks dispose of sewage material from treatment works treating domestic sewage. The Ninth Circuit reinstated the indictment against Hagberg and remanded the case to the district court for trial.

3. United States v. Van Loben Sels, 198 F.3d 1161 (9th Cir. 1999).

Wilfred Page Van Loben Sels pled guilty to the negligent discharge of benzene-contaminated wastewater into the City of Los Angeles (the City) municipal sewer system in violation of section 307 of the Clean Water Act (CWA)(63) and section 64.30 of the Los Angeles Municipal Code. The District Court for the Eastern District of California refused to apply a six-level upward adjustment of Van Loben Sels' penalty under sentencing guideline section 2Q1.1(b)(1)(a).(64) The government appealed this refusal, and the Ninth Circuit reversed based on both the defendant's knowledge of the illegal discharge and an inference that this discharge created actual contamination.

Van Loben Sels was the owner of Gibson, Inc. (Gibson), a hazardous waste treatment, storage, and disposal facility. Van Loben Sels contracted with Wilmington Liquid Bulk Terminal (WLBT) to allow Gibson to transport wastewater to WLBT's facility where it could be discharged into the Los Angeles Sanitary sewer system. Once in the sewer system, the wastewater flowed into the Terminal Island publicly owned treatment works prior to its release into San Pedro Bay. Van Loben Sels admitted that, for a twenty-six month period between 1991 and 1993, Gibson sent one million gallons of untreated wastewater per month to the WLBT facility. This wastewater contained benzene concentrations that exceeded CWA regulatory limits.

A ninety-two count indictment was issued against three individuals, and Val Loben Sels pled guilty to the negligent discharge of benzene-contaminated wastewater.(65) The district court held an evidentiary hearing regarding Van Loben Sels' sentence. The court concluded that, although Van Loben Sels had "continuously discharged benzene into the environment," contemporaneous tests showed no benzene discharge from Terminal Island.(66) Moreover, the district court held that the government failed to prove that the percentage of benzene at Terminal Island was attributable to Van Loben Sets. Accordingly, the district court refused to upwardly adjust Van Loben Sets' penalty under sentencing guideline 2Q1.2(b)(1)(A).

The Ninth Circuit relied on United States v. Ferrin(67) for guidance and held that application note 5 of sentencing guideline 2Q1.2(68) required "a showing that some amount of hazardous substance in fact contaminated the environment to justify an offense level increase under subsection (b)(1)."(69) However, the court stated that Ferrin allowed "reasonable inferences from available evidence ... to support a conclusion that the illegal acts resulted in contamination."(70) The Ninth Circuit held that the city pretreatment standards applied to Gibson's discharge at the WLBT facility, and that Van Loben Sels' penalty had not been upwardly adjusted because the district court examined the toxicity of the Terminal Island discharge after the wastewater had been treated. Consequently, the court explained that the record supported the inference that Gibson's acts resulted in actual contamination, and contamination is the prerequisite for application of sentencing guideline 2Q1.2(b)(1)(A). Thus, the Ninth Circuit concluded that the district court's refusal to apply the sentencing guideline was clearly erroneous and reversed and remanded the case for resentencing.

II. NATURAL RESOURCES

A. Endangered Species Act

1. Aluminum Company of America v. Administrator, Bonneville Power Administration, 175 F.3d 1156 (9th Cir. 1999), infra Part II.C.

2. Defenders of Wildlife v. Bernal, 204 F.3d 920 (9th Cir. 2000).

Defenders of Wildlife and the Southwest Center for Biological Diversity (Defenders) appealed a decision of the District Court for the District of Arizona, holding that the proposed construction of a Tucson, Arizona high school would not result in a "take" of the cactus ferruginous pygmy owl (pygmy owl) in violation of section 9 of the Endangered Species Act (ESA).(71) The district court denied Defenders' request for a permanent injunction of Amphitheater School District's (the District) construction and lifted a temporary restraining order granted pending trial. On appeal to the Ninth Circuit, Defenders asserted that the district court: 1) erroneously found that Defenders had failed to meet their burden of proof to establish a "take" of the owl; 2) improperly refused to require the District to apply for an section 10 incidental take permit; 3) incorrectly excluded expert testimony; and 4) inappropriately denied Defender's motion for a new trial. The Ninth Circuit affirmed the district court on all grounds.

Defenders claimed that, under the section 9 definition of "take," construction of the school would "harm" or "harass" the pygmy owls that inhabited the site.(72) The Ninth Circuit relied heavily on the district judge's division of the analysis into two issues: 1) does the pygmy owl occupy any part of the school site; and 2) will the construction result in a section 9 take through harm or harassment of the owl? Based on expert opinion, evidence presented as to the owl's habits, and "recent aural detection of the bird," the district judge inferred that the pygmy owl occupied a thirty-acre "arroyo area" near the northern and western boundaries of the school site, where no construction was to take place.(73) Thus, the district court judge answered the first question in the affirmative.

The district judge further bifurcated his analysis in consideration of the second concern (i.e., whether the construction would harm or harass the owl). Here, the judge inquired: 1) whether clearance of the portion of the school site not occupied by pygmy owls would take any owls; and 2) what proof was offered that construction and operation of the school would harm or harass the owl. The judge concluded that the lack of owl sightings and the failure of surveys to detect the presence of the owl outside of the thirty-acre arroyo parcel established little factual basis for an inference that the pygmy owl occupied any portion of the school site where construction was to take place. The Ninth Circuit affirmed the trial judge's finding that clearance of the portion of the site unoccupied by the owl would not result in a take of the owl.

Defenders also contended that the increased human activity at the school site would harm or harass the pygmy owl. Defenders' experts testified that the pygmy owl could tolerate minor human activity, but the magnitude of the proposed construction activity would drive the owl from the school site. The district court judge stated that, because Defenders' experts offered little evidence to support their assertions, and because Arizona Game and Fish Department had reported specific instances of the owl's occupation and adaptation to urban areas, the record did not support the conclusion that the owl would be harassed by human activity. Accordingly, because the pygmy owl did not occupy the portions of the school site scheduled for construction, and the owl would not otherwise be harmed by the construction, the district court held that the proposed activity would not result in a take of the owl under section 9 of the ESA. The Ninth Circuit reviewed the district court under the clearly erroneous standard of review and upheld the district court's judgment.

Defenders also challenged the district court's ruling that the District was not required to apply for an incidental take permit under section 10 of the ESA. The District maintained that it had not applied for a permit because the school construction would not result in a take of the owl. The Ninth Circuit reviewed the judgment of the district court de novo, concluded that application for a section 10 permit was a voluntary action, and affirmed the decision.

Next, the Ninth Circuit reviewed Defenders' claim that the district court had improperly excluded critical evidence and testimony. Specifically, Defenders challenged the exclusion of the testimony of Dr. Anthony Povilitis regarding general pygmy owl and conservation biology background information. The Ninth Circuit reviewed this exclusion for abuse of discretion and prejudicial effect. The court held that, because the exclusion of Dr. Povilitis' testimony did not prejudice Defenders' claim, the district court had not abused its discretion.

Additionally, Defenders appealed the exclusion of the deposition of Fish and Wildlife Service (FWS) pygmy owl expert, Mary Richardson. Defenders maintained that Richardson could have testified both as to whether the pygmy owl used any area other than the thirty-acre arroyo area and the likelihood that the construction would harm or harass the owl. The district court granted the District's motion to quash Richardson's deposition based on an affidavit by Richardson's superior. The affidavit stated that office policy prohibits FWS biologists from testifying in private litigation. The Ninth Circuit recognized the burden that this type of testimony would place on FWS resources and found that the district court's exclusion was not an abuse of discretion.

Afar the district court's denial of Defenders' claims regarding the take of the pygmy owl, Defenders filed a motion for a new trial based on 1) allegations that the school site surveys were unscientific; 2) the discovery of new evidence that indicated pygmy owl presence; and 3) the district court's failure to grant Defenders a continuance to survey the site for indications of pygmy owls. Defenders based their claims on an affidavit from Michael Terrio, a coworker of the District's consultant who was hired to survey the site for pygmy owls. Terrio claimed that the surveys conducted prior to trial were unscientific and that subsequent surveys could indicate the presence of pygmy owls near the construction site. The district court denied the motion because 1) both Terrio's testimony and the newly discovered evidence could have been obtained prior to trial, and 2) the evidence was unlikely to affect the outcome of a new trial.

Similarly, Defenders asserted that they should have been granted a continuance to survey the site independently, especially in light of Terrio's affidavit. The district court denied the continuance and reiterated that Defenders had possessed an opportunity to conduct this survey prior to trial. Based on the district court's reasoning, the Ninth Circuit found that the district court had not abused its discretion in denying the motion for a new trial.

Finally, while Defenders' claim was on appeal, Defenders filed a motion for the district court to consider the newly discovered evidence. The Ninth Circuit delayed consideration of the appeal until the district court decided whether to examine the evidence. The district court denied Defenders' motion, and the Ninth Circuit held that this issue was not reviewable on appeal because the denial was not a final judgment.

In a concurring opinion, Judge Fletcher sought to clarify the Ninth Circuit's ruling that critical habitat designation played no role in this case. At the time of appeal, FWS had not yet made a critical habitat designation for the pygmy owl. The Ninth Circuit found that the insufficiency of plaintiff's evidence was the dispositive issue, and any critical habitat designation would not have altered the outcome of the case. Judge Fletcher stated that the decision should not be read to hold that critical habitat designation "will never have any bearing on actions on private lands within designated critical habitat."(74)

3. Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999), infra Part IV.D.

4. Washington v. Daley, 175 F.3d 1158 (9th Cir. 1999), infra Part III.

B. Forests

1. Ecology Center, Inc. v. United States Forest Service, 192 F.3d 922 (9th Cir. 1999).

Ecology Center, Inc. brought suit to compel the United States Forest Service to comply fully with the monitoring duties established by the National Forest Management Act (NFMA),(75) for the Kootenai National Forest. The Kootenai National Forest Plan (KNFP) mandates a monitoring schedule evaluating the effectiveness of the Forest Service's management. Since the beginning of the plan in 1976, the Forest Service has complied with these requirements for each year except for 1988 and 1993. The district court dismissed Eagle Center's suit for lack of subject matter jurisdiction under the Administrative Procedure Act (APA).(76)

The APA grants the right of judicial review to a person who suffers a legal wrong or is adversely affected by a "final agency action."(77) According to the Supreme Court, there are two conditions to a "final agency action" under the APA: 1) the action should signify the conclusion of the agency's decision making process and 2) the action should be a duty from which rights or legal obligations arise.(78) In 1999, the Ninth Circuit affirmed the lower court's dismissal of the plaintiff's case.

The Ninth Circuit determined that Ecology Center did not meet either APA condition and that it consequently failed to establish the existence of a final agency action. First, the court held that the monitoring duty was only an intermediate step toward a final agency determination. Under KNFP, an interdisciplinary team utilizes the monitoring reports to determine whether to make a recommendation to change current forest practices. These recommendations are not reviewable as final agency actions.(79) Monitoring precedes such a recommendation; therefore, it was not a final agency action within the meaning of the APA.

Furthermore, the court held that the Forest Service's monitoring duty did not create any fights, legal obligations, or consequences, because it failed the second requirement for a final agency action. Ecology Center argued that the Forest Service's failure to prepare monitoring reports harmed the Center because the absence of reports denied it access to information necessary for public participation. The court rejected this argument, and held that the NFMA did not establish any public participation requirement in regards to monitoring of Forest Service management practices.

The Ninth Circuit also rejected Ecology Center's alternative argument for judicial review. The Center argued that the Forest Service's failure to perform fully its monitoring duty was tantamount to an unreasonable delay of compliance. Section 706(1) of the APA provides a right to judicial review for "agency action[s] unlawfully withheld or unreasonably delayed."(80) The court recognized that section 706(1) established a limited exception to the finality doctrine "only when there has been a genuine failure to act."(81) It determined that the Forest Service's failure to strictly perform its monitoring duties was not equivalent to a failure to act under the APA, and therefore, Ecology Center's claim was not ripe for review.

2. United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000), infra Part V.

3. Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir. 1999), infra Part II.D.

C. Hydroelectric Power

1. Aluminum Company of America v. Administrator, Bonneville Power Administration, 175 F. 3d 1156 (9th Cir. 1999).

The point of contention in Aluminum Co. arose from a biological opinion (BiOp) issued by the National Marine Fisheries Service (NMFS) in 1995. In 1992, the Army Corps of Engineers and the Bureau of Reclamation decided to increase water flows at dams within the Federal Columbia River Power System "to assist the ... migration of juvenile [endangered] salmon."(82) The direct service industrial (DSIs) customers of BPA challenged two BiOps supporting the decision to increase flows. Because of this challenge, NMFS revised its BiOps several times and eventually issued a final BiOp in 1995. The 1995 BiOp concluded that continued operation of the power system threatens the continued existence of salmon listed under the Endangered Species Act (ESA).(83) BPA thereafter adopted the BiOp and its accompanying "reasonable and prudent alternatives" as required under the ESA.(84)

In this case,(85) the DSIs claimed that BPA violated the Administrative Procedure Act (APA)(86) when it adopted the findings of the 1995 BiOp. The DSIs also argued that BPA failed to balance adequately its obligations under the ESA against the requirements of the Northwest Power Act.(87) Finally, the petitioners alleged that BPA failed to supply an environmental impact statement (EIS), as required by the National Environmental Policy Act (NEPA).(88) The Ninth Circuit found none of these arguments convincing, and declined to review BPA's decision.

The APA allows judicial review of the decisions of the BPA Administrator through the Northwest Power Act.(89) In Aluminum Co., the industrial customers alleged that BPA simply "rubber stamp[ed] the [NMFS's] analysis."(90) Indeed, the court admitted that there was no bright line to determine when unquestioning adoption of a consulting agency's opinion is justified. However, the court declined to scrutinize a "jeopardy" finding under the same standard as a finding of "no jeopardy," stating that "such an attempt is contrary to the purposes and spirit of the [ESA]."(91) The Ninth Circuit suggested that the weight given to jeopardy findings grants extremely deferential treatment to such findings on review.

Similarly, the court declined to extend the arbitrary and capricious standard to a situation in which an agency has performed its own independent jeopardy assessment without new evidence. The Ninth Circuit held that scientific results accepted by the agency need not be reexamined where there is merely an ongoing dispute among experts. Indeed, in such cases, the court deferred to the action agency's determination of scientific fact.

In the area of economic balancing, the Ninth Circuit held that the BPA's mandate under the Northwest Power Act to provide economical power "does not supplant the BPA's obligation to comply with environmental mandates."(92) The DSIs argued that the economic impact of the BiOp was a violation of the Northwest Power Act's mandate that "an adequate, [and] economical ... power supply" be maintained.(93) The Ninth Circuit refused to accept this interpretation, and based its holding on its own 1994 interpretation of the Northwest Power Act.(94) In pertinent part, Northwest Resource Information Center v. Northwest Power Planning Council found that the Northwest Power Act required BPA to consider changing the basic operation of hydropower projects and to favor "biological options over economic ones."(95) Under this line of analysis, the Ninth Circuit found that BPA had correctly balanced protection of salmon and provision of economical hydropower.

Finally, the court held that the challenge raised by the DSIs under NEPA was moot and therefore beyond the scope of judicial review. NEPA stipulates that an environmental impact statement (EIS) must be issued for activities that "significantly affect[] the quality of the human environment."(96) However, BPA did issued a joint EIS in November 1995. While the filing of the EIS was technically late, the court could provide no remedy to the DSIs for the interim when no EIS existed. Because no remedy was available, the issue was moot.

In sum, the Ninth Circuit in Aluminum Co. granted broad deference to agency action where questions of scientific fact are not yet resolved and the agency issues a finding of "jeopardy." The court also refused to accept the DSIs' contention that the facts underlying the 1995 BiOp were reviewable on appeal. Finally, the court held that statutory conflicts involving the ESA are typically resolved in favor of the ESA.

2. American Rivers v. Federal Energy Regulatory Commission, 201 F.3d 1186 (9th Cir. 2000).

Conservation groups, the United States Department of Interior, and the Oregon Department of Fish and Wildlife (collectively, petitioners) challenged the Federal Energy Regulatory Commission's (FERC) relicensing of two dams operated by the Eugene (Oregon) Water and Electric Board (EWEB). The petitioners alleged that FERC's renewal of the licenses violated the mandates of the Federal Power Act (FPA)(97) and the National Environmental Policy Act (NEPA)(98) by failing to evaluate properly the impact of the hydropower projects on the McKenzie River ecosystem in central Oregon. The petitioners also sought review of the license renewal based on FERC's failure to mitigate impact on fish and wildlife as required under section 803(j) and 811 of the FPA.(99)

The petitioners' first allegation was based on FERC's statutory construction of the FPA. As an agency interpretation of its own governing statute, FERC's construction of the FPA falls squarely under the Chevron doctrine.(100) Chevron requires a court to examine first "whether Congress has directly spoken [in the governing statute] to the precise question at issue."(101) If there is ambiguity in the statutory mandate, courts presume that Congress has delegated the authority to interpret the statute to the agency.(102) The agency's interpretation is entitled to deference "unless [the interpretation is] arbitrary, capricious, or manifestly contrary to the statute."(103)

The petitioners' main challenge under the FPA involved FERC's use of present environ-mental conditions "as a `baseline' ... to evaluate alternatives to the ... relicensing proposal."(104) Petitioners advanced that the use of existing environmental conditions assured the success of EWEB's relicensing application. In order to overcome the presumptive deference of Chevron, petitioners needed to prove that the statutory framework of the FPA clearly mandates the use of a pre-project model of the ecosystem as a baseline. However, the Ninth Circuit held that "It]he FPA ... nowhere defines or even mentions the concept of an environmental baseline."(105) In fact, legislative history surrounding the Electric Consumers Protection Act (ECPA)(106) amendments to the FPA suggests that Congress intended the baseline to be factored from the contemporary level of development. Thus, absent a clear congressional mandate, the court simply deferred to FERC's interpretation.

The Ninth Circuit next noted that the second step of Chevron analysis would require the court to defer to FERC's interpretation of its statutory mandate unless it was plainly unreasonable. The very existence of the hydropower projects and the concomitant development fundamentally altered the environmental makeup of the McKenzie River Valley.(107) Indeed, it was unreasonable to require FERC to look back fifty years to construct a model of the environmental baseline to use in contemporary development planning.(108)

The court similarly found that the baseline used by FERC was not a violation of section 8030) of the FPA.(109) Section 8030) requires that "each license issued ... shall include conditions for ... protection, mitigation, and enhancement" of wildlife populations and habitats.(110) However, the Ninth Circuit found that although section 803(j) requires mitigation, it does not require FERC to accept every consulting agency recommendation. Essentially, should the court require FERC to accept all outside agency recommendations, it would subvert the balancing process established by the FPA. Therefore, the decision on how best to synthesize the recommendations of other agencies lies with FERC.(111)

The petitioners' final contention under the environmental baseline argument sprang from an expansive reading of Confederated Tribes and Bands of the Yakima Indian Nation v. Federal Energy Regulatory Commission (Yakima)(112) Yakima mandates that FERC consider the environmental impacts of relicensing and prepare an environmental impact statement (EIS) before reissuing a hydropower license.(113) The petitioners in American Rivers sought to apply the EIS requirement in the baseline context. However, the Ninth Circuit concurred with the D.C. Circuit's interpretation of Yakima in United States Department of Interior v. Federal Energy Regulatory Commission (DOI v. FERC).(114) DOI v. FERC limited Yakima to the proposition that "an agency must establish a record ... [only to demonstrate that] it has considered all the factors required by the statute."(115)

The petitioners' arguments under NEPA focused on the procedural requirements of its statutory scheme. NEPA directs an agency to include "reasonable alternatives" to the proposed action in an EIS.(116) The petitioners argued that the no-action alternative should have encompassed a denial of the license to the hydropower projects. Unlike its de novo review under Chevron,(117) the court reviewed FERC's compliance with NEPA using the "rule of reason" standard.(118) The rule of reason dictates that FERC "need not consider an infinite range of alternatives, only reasonable or feasible ones."(119) Also, the EIS must merely "briefly discuss" the rejected alternatives and the reasons for their rejection.(120) The Ninth Circuit found that "[FERC's] analysis comfortably meets the `discuss briefly' standard,"(121) thus satisfying NEPA's procedural requirements.

The final two issues addressed by the Ninth Circuit in American Rivers were issues of first impression that dealt with the statutory construction of FERC's duties under the FPA. The sections of the FPA at issue direct FERC to "protect, mitigate damages to, and enhance, fish and wildlife ... affected by the development,"(122) and to "require the construction [at the licensee's expense] ... [of] such fishways as may be prescribed by the Secretary of the Interior...."(123) Once again, the Chevron doctrine applied to the agency interpretation of its statutory mandate. However, in analyzing these two sections of the FPA, the Ninth Circuit held that the statutory language was unambiguous. Therefore, the court only needed to address the question of whether FERC had acted within statutory guidelines.

Under section 803(j)(1), FERC is required to mitigate the impact of power projects on the natural environment and to provide for conditions that facilitate such protection.(124) The conditions are "based on recommendations received ... from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and the State fish and wildlife agencies,"(125) However, this clear requirement is subjected to FERC's discretion under section 8030)(2). Subsection 2 clearly provides FERC with the ability to reject the recommendations of the other agencies, so long as FERC makes findings supporting its decision. Quoting the D.C. Circuit's holding in National Wildlife Federation v. Federal Energy Regulatory Commission, the Ninth Circuit upheld the proposition that "the discretion ultimately vests in the Commission as to how to incorporate each recommendation."(126) Indeed, the court found that FERC had adequately addressed the recommendations of the Oregon Department of Fish and Wildlife in the final EIS, thus fulfilling its statutory obligation to afford "significant deference" to the resource agencies.(127) The Ninth Circuit determined that section 803(j) required nothing more.

The final point of contention in American Rivers stemmed from the fishway prescriptions offered by the federal resource agencies. The Ninth Circuit first relied on the reasoning of a virtually identical D.C. Circuit case to find that the petitioners had parens patriae and organizational standing.(128) Second, the court held that the issue of providing fishways was ripe even though certain aspects of the final licensing plan remained unresolved, as the finding "resolve[d] the issue [of] whether ... conditions [were] mandatory."(129) With the procedural aspects of review satisfied, the court entered into its final Chevron analysis.

The Ninth Circuit held the implementation of the fishway recommendation to be required as a condition of FERC granting the license. This finding hinged on the clear statutory language of the Federal Power Act.(130) The Supreme Court held in Escondido Mutual Water Company v. La Jolla Band of Mission Indians (Escondido) that section 797(e) compelled FERC to "include the Secretary's conditions in the license even if it disagrees with them."(131) The Ninth Circuit concurred with the Supreme Court's Escondido analysis that there is no conflict between FERC's discretionary power under section 8030) and a compelled acceptance of the Secretary's findings under section 797(e). Furthermore, the Ninth Circuit extended this logic to cover the mandatory acceptance requirement under section 811. The "clear congressional delegation ... counsel[ed] a one-step Chevron inquiry."(132)

FERC finally argued that the Secretary of the Interior's recommendation did not meet FERC's definition of a fishway under section 811, and thus FERC could legitimately deny the condition. The basis for this claim was an aspect of the Escondido case. In Escondido, the Secretary of the Interior had attempted to place conditions on hydropower licenses for facilities outside of, but affecting, Indian Reservations. The Supreme Court held that section 797(e) of the FPA did not allow the Secretary to impose conditions on these facilities as if they were within reservations.(133) Because the proposed fishways in American Rivers did not exceed the statutory authority of section 811, and because the conditions imposed by the Secretary in Escondido exceeded the statutory authority of section 797(e), the court held this argument to be inapposite. Essentially, the Ninth Circuit rejected FERC's strained reading of legislative history that would have allowed the agency to impose its own definition of fishways.

In sum, the court rejected petitioner's contentions regarding statutory interpretation of the environmental baseline and the applicability of NEPA. The court nonetheless vacated the issuance of the license based on FERC'sviolation of the FPA section 811 and remanded the issue to FERC for resolution.

3. Klamath Water Users Protective Assoc. v. Patterson, 203 F. 3d 1175 (9th Cir. 2000).

The Ninth Circuit denied Klamath Water Users Protective Association's (the Association) petition for panel rehearing and rehearing en banc.(134) The Association had previously appealed the decision from the District Court for the District of Oregon which held that the Association was not a third party beneficiary to a contract between the United States Bureau of Reclamation and California Oregon Power Company. This contract controlled the operation of Link River Dam.(135) The Ninth Circuit amended its previous decision and added a footnote stating that its decision involved only the management of the Klamath Project and did not affect the pending Klamath River Basin water rights adjudication.(136)

D. Livestock Grazing

1. Idaho Watersheds Project v. Hahn, 187 F.3d 1035 (9th Cir. 1999).

Plaintiff environmental groups appealed from the district court's denial of their motion for a preliminary injunction limiting grazing in two grazing allotments on the Owyhee Resource Area in Idaho. The complaint alleged that (1) conditions in the Owyhee Resource Area violated the Bureau of Land Management's (BLM) 1995 "Fundamentals of Rangeland Health" (FRH) regulations,(137) and (2) the BLM's unreasonable delay in complying with the FRH regulations violated section 706(1) of the Administrative Procedure Act.(138) The injunction sought to enjoin hot season grazing from July 15 to September 30, 1999 in riparian pastures within the allotments, and to order BLM to implement changes in grazing management in the allotments by the start of the 2000 grazing season. The Ninth Circuit reversed the district court's order denying the preliminary injunction and remanded to the district court to consider the possibility of irreparable injury and whether the balance of the hardships favored the plaintiffs.(139)

In denying the motion for a preliminary injunction, the district court had found that the plaintiffs had failed to show a likelihood of success on the merits because BLM had satisfied its FRH management obligations for the two allotments. The FRH regulations require BLM to "take appropriate action" when it determines that existing grazing practices or levels of use on public lands are significant factors in a failure to achieve the FRH standards and guidelines.(140) "Appropriate action" means that BLM must consult with relevant parties, issue a proposed decision, consider any protests, and render a final decision.(141) BLM made an initial determination in October of 1997, but did not issue a final decision modifying the relevant grazing permit and implementing changes in grazing management practices until after the full 1998 grazing season had passed.

The agency claimed that it is only required to begin the FRH procedures by consulting affected parties before the next grazing season begins. However, the Ninth Circuit interpreted the FRH regulations to mean that BLM must complete all of the FRH procedures-from consultation with the relevant parties through rendering a final decision--and issue its final decision by the start of the next grazing season. The court found that the plain language of the regulations indicates that action that results in progress toward fulfillment of ecological standards and guidelines must be taken before the start of the next grazing season. As additional support for its interpretation, the court quoted a BLM instruction memorandum that states, "43 CFR subpart 4180 was written to achieve positive, on-the-ground changes in resource conditions.... Success will be measured in terms of procedural actions."(142)

2. Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir. 1999).

Plaintiff environmental groups sued the United States Forest Service (Forest Service) over its Land and Resource Management Plan (Forest Plan) and livestock grazing on the Prescott National Forest in Arizona. The groups claimed that 1) the National Forest Management Act (NFMA)(143) requires the Forest Service to determine whether lands deemed "capable" of supporting livestock grazing are also "suitable" for livestock grazing, based on a consideration of the economic and environmental consequences of grazing and any alternative uses; 2) the Forest Service violated NFMA by issuing grazing permits for certain grazing allotments in the Prescott National Forest; and 3) the Forest Service violated the Administrative Procedure Act (APA)(144) by arbitrarily and capriciously permitting grazing in the National Forest, without a suitability determination. The Ninth Circuit held the first claim non-justiciable, and upheld the district court's ruling that the Forest Service's actions, with respect to individual grazing allotments, were reasonable interpretations of the regulations.

In considering the plaintiffs' first claim--that the Forest Serviceviolated NFMA by adopting the Forest Plan before conducting a grazing suitability determination--the court turned to Ohio Forestry Association v. Sierra Club.(145) In that case, the Supreme Court held that a generic challenge to a forest plan, without any specific or concrete harm alleged, was not ripe for adjudication. In deciding whether an agency decision to adopt a forest plan is ripe for judicial review, the Ninth Circuit applied the three factors enunciated in Ohio Forestry: 1) whether delayed review would cause hardship to the plaintiff; 2) whether judicial review would inappropriately interfere with further administrative action and; 3) whether the court would benefit from further factual development of the issues presented.(146) According to the Ninth Circuit, a plaintiff must allege either "imminent concrete injuries that would be caused by the forest plan"(147) or "a site-specific injury causally related to an alleged defect in the forest plan."(148) Further, "[g]eneric challenges to the sufficiency of forest plans are no longer justiciable, nor are challenges that merely identify affected sites without alleging a harm causally related to the forest plan."(149)

Plaintiffs alleged only that the Forest Service's general methodology in determining grazing suitability in the Forest Plan was flawed, thereby causing site-specific harm by allowing grazing in an unsuitable area. However, the court then stated that "[b]ecause the site-specific injury to the two allotments is alleged to have been caused by a defect in the Forest Plan, we may consider whether the Forest Service complied with [NFMA] in making its general grazing suitability determinations in the Forest Plan."(150) The court found the first claim to be non-justiciable, despite Ohio Forestry's statement permitting "a challenge to the lawfulness of [a forest plan] if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm."(151)

Nevertheless, the Ninth Circuit went on to analyze the Forest Plan in order to decide the Plaintiffs' site-specific claims. First, the court addressed the argument that the identity of acreage in the Forest Plan designated as "capable" of grazing and land designated as "suitable" for grazing reflects a blanket decision on the part of the Forest Service--without any consideration of economic or environmental consequences, as required in the regulations(152)--that all lands capable of grazing are also suitable for grazing. The Forest Service claimed that it had performed its economic and environmental analyses, including consideration of alternative uses of the lands, during the environmental impact statement (EIS) stage of the forest planning process. The EIS examined seven plan alternatives, each with different management goals and directives for a variety of resources. Thus, the Forest Service claimed, the required grazing suitability determination was performed within a planning process that focused on a variety of other resources at the same time.

The court noted that in reviewing an interpretation of an agency regulation, a court will defer to the agency's interpretation unless it is plainly erroneous or inconsistent with the regulation.(153) Here, the Forest Service was interpreting the grazing suitability regulation that mandates that the "suitability and potential capability of National Forest System lands for producing forage for grazing animals and for providing habitat for management indicator species shall be determined" in the forest planning process.(154) The Forest Service claimed that it had permissibly interpreted that regulation by performing the economic and environmental analysis at the EIS stage of the forest planning process. Agreeing with the Forest Service, the Ninth Circuit decided that the agency adequately considered economic and environmental consequences and alternatives forgone in favor of the preferred Forest Plan.

Plaintiffs also argued that the Forest Service's computer program, used as an analytic modeling tool, caused the grazing outcomes to be predetermined and therefore did not satisfy NFMA's grazing suitability determination requirement.(155) The court, however, decided that the program's grazing assumptions were not contrary to NFMA's requirements, and that the Forest Service could use the program to assist in its analysis: "To be sure, the [computer program] analysis of the EIS preferred alternative did include a grazing assumption. However, other examined options did not. One alternative contained no grazing restraints, while the other alternatives constrained grazing to a floor ranging from 86 to 177.5 animal unit months."(156)

Finally, the court found that the plaintiffs' APA claim was subsumed into the resolution of the NFMA claim. Because the Forest Service complied with NFMA in adopting the Forest Plan, the APA claim failed.

E. Land Exchanges

1. Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999).

The Muckleshoot Indian Tribe sued the United States Forest Service (Forest Service) over its decision to implement a land exchange with Weyerhaeuser timber company on Huckleberry Mountain in the Mt. Baker-Snoqualmie National Forest. The Ninth Circuit reversed the district court, holding that the Forest Service failed to meet the requirements of the National Historic Preservation Act (NHPA)(157) and the National Environmental Policy Act (NEPA).(158) The court enjoined further timber operations on the lands pending the Forest Service's satisfaction of its NHPA and NEPA obligations.

In an attempt to consolidate land ownership in the area, the Forest Service and Weyerhaeuser negotiated the exchange pursuant to the Federal Land Policy and Management Act (FLPMA),(159) which authorizes the exchange of public lands.(160) The exchange anticipated a trade of publicly owned old growth forestlands for private lands that were heavily logged and dissected by logging roads. After signing a statement of intent and conducting a number of required environmental surveys, the Forest Service initiated a public comment period and developed a list of six alternatives for the project. The environmental impact statement (EIS) considered three alternatives, and the record of decision called for implementation of the exchange through a modification of "Alternative No. 3."

Members of the Muckleshoot Tribe have used Huckleberry Mountain for thousands of years for cultural, religious, and resource purposes. The lands involved in the exchange are part of the tribe's ancestral grounds. In addition, the Forest Service also exchanged to Weyerhaeuser intact portions of the Huckleberry Divide Trail--a trading route used for centuries by the tribe and its ancestors, which the Forest Service had found eligible for inclusion in the National Register of Historic Places. Weyerhaeuser intended to log the lands it received in the exchange.

After exhausting their administrative remedies, the tribe and two environmental organizations commenced separate actions (consolidated in this case) in district court. On appeal, the plaintiffs only retained their NHPA and NEPA claims. The Tribe's NHPA claims asserted that 1) the Forest Service failed to consult adequately with the Tribe regarding the identification of traditional cultural properties, 2) the Forest Service inadequately mitigated the harmful impact of the exchange on sites of cultural significance, and 3) that the Forest Service violated the NHPA by failing to nominate certain sites to the National Register.

In terms of identification of traditional cultural lands, the regulations implementing the NHPA require that the agency consult with the State Historic Preservation Officer (SHPO), the Advisory Council on Historic Preservation, and the governing bodies of the affected Native American tribes.(161) The court found a Tenth Circuit case, Pueblo of Sandia v. United States,(162) to be instructive. In Pueblo of Sandia, the Tenth Circuit held that mailing a form letter to the Tribe that solicited information had not satisfied the agency's obligation under section 470f of the NHPA,(163) and that the agency had failed to perform the required "good faith consultation" with the SHPO.(164)

In the present case, the Forest Service performed some research on historic sites in the exchange area and communicated several times with Tribal officials regarding the identification and protection of cultural resources. After the Forest Service initially concluded that the Huckleberry Divide Trail was ineligible for listing on the National Register, but the SHPO suggested otherwise, the Forest Service reconsidered its decision and this time found the trail eligible. The Forest Service nevertheless included the trail in the lands to be exchanged. The Tribe argued that the Forest Service had also failed to consider the Tribe's claims that numerous other places of historic importance were situated in the exchange area. In response to these various claims, the Ninth Circuit determined that, although the agency "could have been more sensitive to the needs of the Tribe,"(165) the facts were not as egregious as those in Pueblo of Sandia. However, the court stated that because it was reversing the district court's decision on other grounds, the Forest Service would have an opportunity to re-open its investigation and evaluation of historic sites on Huckleberry Mountain.

The Ninth Circuit upheld the Tribe's second allegation under the NHPA--that the Forest Service failed to mitigate the harmful impacts of the exchange on sites of cultural significance. The NHPA regulations state that when an agency determines that certain lands are eligible for listing in the National Register, the agency must assess the effects of the proposed action on those lands and give consideration to the views of interested parties.(166) Further, an effect may be considered "adverse" when property is being transferred.(167) In order to mitigate an otherwise adverse effect, an agency may 1) conduct appropriate research in those situations where the property is only valued for its potential historic, archaeological, or architectural contributions,(168) or 2) include adequate restrictions or conditions that insure the preservation of a property's significant historic features when that property is valued for more than simply research potential.(169) The court concluded that the Forest Service's decision to simply document the trail did not satisfy the agency's obligations to minimize the adverse effects of the land transfer. The Forest Service bolstered this conclusion by admitting that previously logged portions of the trail had been "obliterated" and rendered ineligible for listing. Having decided that the Forest Service failed to meet its mitigation obligations under the NHPA, the court did not address the issue of the agency's failure to nominate the Huckleberry Divide Trail for the National Register.

The Plaintiffs also claimed under NEPA that 1) the Forest Service failed to consider the cumulative impacts of the proposed action, and 2) the EIS inadequately defined the purpose and need of the land exchange and did not identify or evaluate sufficient alternatives for the exchange. The Tribe's cumulative impacts argument emphasized that the Forest Service failed to consider the cumulative impacts of logging on a 1984 land exchange (Alpine Lakes Exchange), of existing logging and other disturbances in the watershed, and of a future land exchange in the same vicinity as the Plum Creek Timber Company (Interstate 90 Exchange). The court agreed, finding the cumulative impact statements provided in the EIS to be "far too general and one-sided to meet the NEPA requirements."(170) The court also rejected the Forest Service's claim that it had properly tiered the action to the Forest Plan because NEPA regulations only allow tiering to another EIS, not to a Forest Plan.(171) Moreover, even if the Forest Plan and other documents that the Forest Service pointed to were valid for tiering purposes, the court found that those documents were also far too broad and devoid of specific, reasoned conclusions.

Finally, the court rejected the Forest Service's argument that the Interstate 90 Exchange was too remote or speculative to be considered in a cumulative impacts analysis: a summary of that transaction had been prepared in 1995, and the Secretary of Agriculture had formally announced it to the public in 1996. The court therefore concluded that, "[i]n the absence of an EIS that takes into consideration the cumulative effects of the planned land sales and resultant environmental impacts, we cannot conclude that the Forest Service took the necessary `hard look' at the cumulative environmental impacts of the Huckleberry Exchange."(172)

The court also agreed with plaintiffs' second NEPA argument that the EIS did not identify or evaluate sufficient alternatives for the exchange. After finding that the EIS's statement of purpose did in fact adequately make clear that the purpose of the exchange was to further the consolidation of land ownership in the area, the court considered the Forest Service's evaluation of alternatives. Only three alternatives were identified: a no action alternative and two others that differed only in that certain lands were relabeled as donations rather than exchanges and 141 acres of donated land were added in one specific alternative. While the court recognized that NEPA does not require an agency to examine every possible alternative to a proposed action (nor does it require an agency to examine alternatives that are unlikely to be implemented or inconsistent with its basic policy objectives), it nevertheless criticized the Forest Service's failure to retain at least one specific alternative that had been preliminarily eliminated from consideration. That alternative would have placed deed restrictions on the lands exchanged to Weyerhaeuser, so that the lands would have been subject to more stringent federal environmental standards.

In addition, the court suggested that the Forest Service could have considered exchange alternatives that modified the acreages involved in order to preserve the Divide Trail. Weyerhaeuser conceded at oral argument that deed restrictions would have been a viable alternative. The court also agreed with the plaintiffs that the Forest Service should have considered that the lands could have been purchased outright with funds from the Federal Land and Water Conservation Fund. That is, even though the Forest Service could not appropriate these funds itself, it could request them, and NEPA states that agencies must include reasonable alternatives that are not within the jurisdiction of the agency.

Finally, the court rejected a mootness argument from Weyerhaeuser. The company argued that the case was moot because the exchange had already occurred, the Plaintiffs had failed to obtain a stay on the district court's ruling, and the company had already begun logging. However, the Ninth Circuit stated, "[g]iven our reluctance to invoke the doctrine of mootness, the facts that the exchange has occurred and that Weyerhaeuser has begun to log pursuant to its state permits do not meet the `heavy' evidentiary burden that a party must carry in order to establish mootness."(173) Along with its reversal of the district court's decision, the Ninth Circuit enjoined further activities on the lands affected by the Huckleberry Mountain Exchange until the Forest Service satisfied its NHPA and NEPA obligations.

III. NATIVE AMERICAN ISSUES

1. Alaska v. Babbitt, 182 F.3d 672 (9th Cir. 1999).

The United States issued a 500-acre grant to the State of Alaska in 1961 for use in the Parks Highway, the primary highway between Anchorage and Fairbanks. In 1969, the United States amended the grant to include only the land on which the highway was built. In 1970, William Bryant, an Alaska Native, filed an application for an Alaska Native allotment of 120 acres straddling the highway. He claimed to have used the land for hunting, berry-picking, and trapping for six years. The Bureau of Land Management approved Bryant's allotment in 1988, and the state brought private contest proceedings. Both an administrative law judge and the Interior Board of Land Appeals (IBLA) dismissed the state's claim. The IBLA decision outlined two major points: 1) the application for an allotment related back to the commencement of the use, at which time the land needed to be vacant and unappropriated and 2) the 1961 land grant was a right of way, not a fee, so the state relinquished all but four acres needed for the highway. The state subsequently filed suit in the United States District Court for the District of Alaska to obtain judicial review of IBLA's decision under the Administrative Procedure Act (APA). The district court dismissed the case for lack of jurisdiction,(174) and the state appealed to the Ninth Circuit.

The Quiet Title Act(175) is the exclusive means by which adverse claimants can challenge the United States' title to real property.(176) However, adverse claimants cannot name the United States as a defendant in disputes concerning trusts or other restricted Indian lands.(177) The Ninth Circuit had previously held that the Indian lands exception could not be avoided by obtaining jurisdiction under the APA,(178) so the state's claim was held to be subject to the Quiet Title Act's limitations. However, the Ninth Circuit had also carved out an exception to the Indian lands exception for cases where the claims of Indian lands were not colorable. The standard of review in judging the United States' action is an arbitrary and frivolous standard, set forth in Alaska v. Babbitt.(179) This standard can be satisfied by a determination that the government had some rationale for holding the lands in trust for the Indians.(180) The State of Alaska contended that no government rationale existed for holding the particular land in trust, and thus, the claim of Indian lands was not colorable.

While the case was pending in the Ninth Circuit, IBLA changed its interpretation of the Quiet Title Act to require occupancy to be under color of law.(181) IBLA held that allotments are granted subject to existing rights, and a state right of way is a valid and existing right.(182) The state already had occupancy under color of law and relation back to the commencement of Bryant's occupancy would not help him. IBLA also held that a subsequent elimination of right of way, as seen in the 1969 refining of Alaska's initial grant, does not automatically give color of law to the Native use.(183) Because the state had existing rights at the time that Bryant began his use of the area, the Ninth Circuit held that Bryant did not have a colorable claim to the land. Thus, the Indian lands exception did not apply because the claim of Indian land was not under color of law. Consequently, the Ninth Circuit held that the district court did have jurisdiction under the Quiet Title Act.

2. Johnson v. Gila River Indian Community, 174 F.3d 1032 (9th Cir. 1999).

In 1966, the Gila River Indian Community (Tribe) leased a portion of its reservation land to Lone Butte Industrial Development Corporation (Lone Butte). Lone Butte then subleased the property to Genstar Corporation, which built a rubber processing plant on the premises. After a complicated buy-out, Bruce Johnson acquired possession of both the processing plant and the rubber processing equipment. In 1991, another corporation, International Rubber, assumed the Genstar lease, but Lone Butte terminated the lease because International Rubber failed to pay rent. In 1993, Lone Butte brought an action in the Gila River Indian Community Tribal Court against Johnson and International Rubber, contesting the ownership of the rubber processing plant and equipment.

Johnson responded both by challenging the tribal court's jurisdiction over him and his property and by filing an answer and counterclaim, in which he claimed to be the rightful owner of the plant and equipment. Lone Butte amended its complaint to include claims against Johnson for trespass and environmental nuisance. In 1995, the tribal court held Johnson liable to Lone Butte for $660,000. Johnson filed a notice of appeal in tribal court and attempted to gather information about the appeal process from the court clerk. Lone Butte fried response briefs and two motions in tribal court. Neither party heard from the appellate court for over a year. In March of 1996, Johnson filed suit in the United States District Court for the District of Arizona seeking to enjoin the enforcement of Lone Butte's judgment.(184) The district court dismissed the action for failure to exhaust tribal remedies.(185) Johnson filed suit in district court again, alleging that the tribal court had violated the Indian Civil Rights Act (ICRA)(186) and that Lone Butte had wrongfully converted his property. A year later, the district court dismissed Johnson's second suit for the same reason,(187) and Johnson appealed to the Ninth Circuit.

The Ninth Circuit decided two issues in this case. The first was whether the Tribe was immune from suit under ICRA. Indian tribes, as sovereign nations, have common law immunity from suit in federal court.(188) The only exception to this rule under ICRA is a habeas corpus action.(189) Because Johnson did not pursue a habeas corpus action, the full effect of the rule was applicable. Thus, the Ninth Circuit concluded that the Tribe was immune from Johnson's claim under ICRA.

The second issue was whether questions of fact existed as to whether Johnson had exhausted all tribal remedies in pursuing his claims. The district court had concurrent jurisdiction with the tribal court over Johnson and Lone Butte under diversity jurisdiction.(190) Considerations of comity dictate that, when there is concurrent jurisdiction in federal and tribal court, tribal remedies must be exhausted before the district court hears the case.(191) This rule has three exceptions: 1) where an assertion of tribal court jurisdiction is made with a desire to harass, 2) where the action violates express jurisdictional prohibitions, and 3) where exhaustion would be futile because of the lack of adequate opportunity to challenge jurisdiction.(192)

Johnson contended that the two-year delay of the tribal appellate court rendered his claim futile. Delay alone does not support a finding of futility, but delay in conjunction with the absence of a functioning tribal court makes exhaustion per se futile.(193) The Ninth Circuit found that the tribal appellate court's failure to respond to any of Johnson's correspondence for a long period of time introduced questions of fact as to whether the court was functional. As a result, the Ninth Circuit reversed the district court's dismissal of the claim and remanded the case for determination of whether the exhaustion rule should be applied.

3. Klamath Water Users Protective Association v. United States, 189 F.3d 1034 (9th Cir. 1999), infra Part IV. C.

4. Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999), supra Part II.E.

5. Washington v. Daley, 1 73 F.3d 1158 (9th Cir. 1999).

This case arose out of a consolidation of two cases,(194) Washington v. Daley(195) and Midwater Trawlers Coop. v. Department of Commerce,(196) which challenged a fishing allocation regulation, promulgated pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).(197) Under the Magnuson-Stevens Act, Regional Fishery Management Councils prepare fishery management plans (FMPs) for review and possible amendment by the Secretary of Commerce.(198) The Secretary may also promulgate regulations under certain circumstances.(199)

The Pacific Fishery Management Council (Pacific Council) prepares FMPs for Washington, Oregon, and California, including allocations of fish harvests to the Makah, Hoh, and Quileute tribes, and the Quinault Indian Nation (Tribes). When the Pacific Council refused to recognize the Makah's treaty rights,(200) the Secretary promulgated his own regulation, which established a structure to implement these fishing rights and set aside a portion of the whiting harvest for the Makah. The State of Washington and the Midwater Trawlers Cooperative (Midwater) separately challenged the regulation in the district courts in Washington and Oregon, alleging that it was in violation of the Magnuson-Stevens Act.(201) Midwater Trawlers Cooperative also challenged the Secretary's regulation for violations of the Endangered Species Act (ESA)(202) and the Regulatory Flexibility Act.(203) All claims involving the Tribes were dismissed for failure to join the Tribes under Rule 19 of the Federal Rules of Civil Procedure.(204) Both the State of Washington and Midwater appealed those rulings.(205) As well, Midwater appealed a summary judgment ruling in favor of the Secretary on Midwater's ESA and Regulatory Flexibility Act claims.

On appeal, the Ninth Circuit considered three sets of claims. First, the Tribes argued that the appellants' Magnuson Act claims were moot. Second, Midwater and Washington argued that the Tribes were not necessary parties under Rule 19. Third, Midwater appealed the summary judgment ruling on its ESA and Regulatory Flexibility Act claims.

The Ninth Circuit rejected the Tribes' argument that the Magnuson-Stevens Act claims were moot. The Tribes argued that because the 1996 and 1997 fishing seasons had passed, the appellants' challenges had become moot. However, the court determined that the regulation was still valid because it created a framework for tribal fishing allocations that extended beyond the 1996 and 1997 seasons to future seasons.

The Tribes also argued that the appellants' cases were moot because the appellants did not have standing to pursue the appeal. Standing requires an actual injury that is fairly traceable to the defendant's actions and would likely be redressed by a favorable ruling from the court.(206) The Makah argued that the change in allocation of fish harvest was not fairly traceable to the challenged regulation and not likely to be redressed if the regulation was invalidated. Because future allocations would be determined using the Secretary's framework, the court found that the appellants' injury was both fairly traceable to the regulation and likely to be redressed.

In addition, the Tribes argued that the Magnuson-Stevens Act claims were moot because underlying factual circumstances on which the appellants based their claims had since been altered. For example, the Ninth Circuit determined in Subproceeding 96-2 of United States v. Washington(207) that the Makah could take whiting, and the Pacific Council had adopted the Secretary's regulatory framework. Furthermore, the Ninth Circuit, in a separate subproceeding in United States v. Washington,(208) had affirmed the Tribes' treaty right to take "all species of fish in their usual and accustomed grounds."(209)

Although some circumstances had changed since the initiation of the suit, the court found that cases were not moot. While Subproceeding 96-2 determined the fishing rights of the Makah, it left unanswered the treaty rights of the Hob, Quileute, and Quinault Tribes. Also, even though the Pacific Council had yielded to the Secretary's version of the harvest allocation, the regulation was still reviewable for arbitrary and capricious behavior.

On the joinder issue, the Ninth Circuit reversed the district court's ruling, finding that the Tribes were not necessary parties under Rule 19. First, the court dismissed the appellants' arguments that actions under the Magnuson Act are always reviewable. It chose to follow its decision in Makah Indian Tribe v. Verity,(210) where it considered a similar issue and concluded that the Makah tribe was subject to Rule 19.(211)

Next, the Ninth Circuit considered whether the district court's dismissal for failure to join was in error. The court applied a two-part analysis: It first determined whether the absent party is "necessary;" if the absent party is necessary but cannot be joined, the court then determined whether the absent party is "indispensable"?(212) In relevant part, Rule 19 defines an absent party as "necessary" if a party is "so situated that [its absence] may ... as a practical matter impair or impede the [party's] ability to protect that interest."(213) The Tribes have an interest in the whiting allocation, a favorable decision would increase their allocation and uphold their treaty rights to harvest groundfish--species living on or near the sea bottom--while an unfavorable decision would undermine those same rights.

Because the United States had similar interests to the Tribes and could adequately represent them in the suit, the Tribes were not necessary parties under Rule 19. An absent party's rights will not be impaired when an existing party adequately represents the absent party's interests.(214) The federal government may "adequately represent an Indian tribe unless there exists a conflict of interest between the United States and the tribe."(215) The court determined that here the United States and the Tribes' interests were "virtually identical."(216) In addition, there was no potential for conflicting obligations. The only possible conflict between the United States and the Tribes would concern the level of allocations, which was not an issue in this case. Moreover, the court emphasized the federal government's trustee relationship with the Tribes as a basis for the government's representation of the Tribes. The Ninth Circuit held that the Tribes were not necessary parties and reversed the district court's dismissal.

Finally, the Ninth Circuit considered Midwater's arguments that the Secretary had violated the ESA and the Regulatory Flexibility Act under an arbitrary and capricious standard. Because this standard is narrow, the Secretary's decision could only be overturned if the Secretary's decision had not been based on "a consideration of the relevant factors."(217) The ESA requires consultation between agencies to ensure that federal actions are not "likely to jeopardize the continued existence of any endangered species."(218) Midwater argued that the Secretary had violated the ESA when he failed to reinitiate consultation to examine the effects of Tribal fishing on protected chinook, salmon caught from whiting bycatch.(219) In fact, the Secretary, through the National Marine Fisheries Service, had reinitiated consultation and had determined that there would be no adverse effect on the salmon. The court held that the agency decision was not arbitrary and capricious and did not violate the ESA.

Under the Regulatory Flexibility Act, an agency is required to perform a regulatory flexibility analysis to assess possible negative impacts of a proposed rule on small entities, but an analysis is not required if the head of the agency certifies that the proposed action will not have a "significant economic impact on a substantial number of small entities."(220) The district court did not act arbitrarily when it considered the Secretary's information and relied on the Secretary's conclusion that the Tribes' whiting allocation would not significantly affect Midwater's revenues.(221) The Regulatory Flexibility Act requires agencies to "consider the effect on the entity, not the effect on revenue earned from a particular harvest."(222) The Ninth Circuit held that the Secretary had not violated the Regulatory Flexibility Act merely by considering the effect on whiting revenues and therefore affirmed the district court's summary judgment against Midwater.

IV. LITIGATION ISSUES

A. Civil Procedure

1. Johnson v. Gila River Indian Community, 174 F.3d 1032 (9th Cir. 1999), supra Part III.

2. Washington v. Daley, 173 F.3d 1158 (9th Cir. 1999),supra Part III.

B. Standing

1. Washington v. Daley, 173 F.3d 1158 (9th Cir. 1999), supra Part III.

2. Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir. 1999), supra Part II.D.

C. Administrative Law

1. Alaska v. Babbitt, 182 F.3d 672 (9th Cir. 1999), supra Part III.

2. Camp v. Bureau of Land Management, 183 F.3d 1141 (9th Cir. 1999), cert. denied, 120 S. Ct. 1244 (2000).(223)

Plaintiff landowner sued the Bureau of Land Management (BLM) under the Administrative Procedure Act (APA)(224) and the Quiet Title Act,(225) alleging that BLM failed to give proper notice of a planned conveyance of adjacent property, thereby denying the plaintiff due process of law. The district court found that the Plaintiffs challenge was time-barred because the statute of limitations began to run when the agency published notice of the proposed land transfer in the Federal Register. Reaching the opposite conclusion, the Ninth Circuit held that publication of notice in the Federal Register was insufficient to trigger the statute of limitations because BLM had a duty to give personal notice of the proposed transfer to the plaintiff's predecessor in interest.

Through his predecessor in interest, Camp claimed a right of way to a water source on land adjoining his property. The original 1977 right of way, granted to Camp's predecessor in interest (his uncle), was to run for a twenty-year period. In 1987, BLM conveyed the adjoining property to the Nature Conservancy, which in turn conveyed the property to defendant Indian Hill Limited Partnership. Each party took the property subject to the right of way. BLM gave public notice of the proposed conveyance in 1987 by publication in the Federal Register and two local newspapers. BLM did not personally notify Camp's predecessor in interest, despite the then-applicable regulation that required such notice to adjoining landowners.(226)

When the right of way expired in 1997, Indian Hill refused to renew it on the same terms, and Camp brought suit. Camp contended that had the adjacent property remained in BLM's possession, the right of way would almost certainly have been renewed, because the agency's regulations stated that it must renew the grant as long as it was still being used for the same purposes.(227) The plaintiff also argued that if he or his predecessor in interest had received notice of the proposed conveyance, they could and would have taken a variety of steps to protect their interests.

The Ninth Circuit began its analysis by citing to the statutory provision regarding notice in the Federal Register, which states that publication in the Federal Register is valid as notice "except in cases where notice by publication is insufficient in law."(228) Finding little authority applying or considering that statutory exception, the court held that the plain language of the statute clearly indicated that BLM had a legal duty to personally notify adjacent landowners. Thus, publication of the proposed conveyance in the Federal Register did not start the statute of limitations running on Camp's claims.

The court found that the case that BLM cited was inapplicable. In Friends of Sierra Railroad, Inc. v. Interstate Commerce Commission,(229) the Ninth Circuit concluded that personal notice was not required.(230) However, that case made no suggestion of any independent legal duty to give notice by a means other than publication. Likewise, in Shiny Rock Mining Corp. v. United States,(231) the court held that a mining company's challenges to certain BLM actions were barred by the statute of limitations because BLM had given notice in the Federal Register.(232) Again, that case did not suggest that BLM had an independent duty to inform the mining company by any means other than publication.

In sum, the Ninth Circuit held that the plaintiff's cause of action was not time barred because BLM had an obligation to personally notify the plaintiff that the agency intended to convey federal property adjacent to the plaintiff's property. The court explained that notice in the Federal Register was inadequate because NEPA required personal notice.

3. Ecology Center, Inc. v. United States Forest Service, 192 F.3d 922 (9th Cir. 1999), supra Part II.B.

4. Klamath Water Users Protective Association v. United States, 189 F.3d 1034 (9th Cir. 1999).

The Ninth Circuit held that documents submitted by Klamath River Basin Indian Tribes (Tribes) to the Bureau of Indian Affairs (BIA) as a constituent agency of the Department of the Interior (DOI) were not exempt from release under the Freedom of Information Act (FOIA).(233) The court found that although the Department requested that the Tribes submit these documents and that they were submitted as part of consultation in an administrative proceeding, the documents were not exempt from release under FOIA section 552(b)(5).(234)

In 1995, DOI's Bureau of Reclamation (Reclamation) announced the initiation of the Klamath Project Operation Plan (KPOP). KPOP was to be the Bureau's long-term plan for the operation of the Klamath Project (Project), a federal reclamation project in Southern Oregon. Both the Klamath Water Users Protective Association (Association) and the Tribes receive water from the Project. To facilitate the development of the KPOP, the Tribes formed an agreement with the Department under which the Tribes would advise the Department regarding the fulfillment of the Department's trust obligations. While this agreement was in effect, the Department filed claims on behalf of the Tribes in an Oregon water rights adjudication process. This adjudication was to apportion water rights in the State of Oregon, including both the Tribes' and the Association's rights in the Klamath River Basin. Although this process was ongoing during the KPOP development, the adjudication operated separately from the development of the KPOP.

In 1996, the Association submitted several FOIA requests for the release of documents relating to discussions of Klamath River Basin water resources exchanged between the Tribes and BIA during the development of the KPOP. The Association sought documents that would reveal the extent of the discussion of the water rights adjudication process that had occurred between the Tribes and BIA outside of the public process. In response to the Association's original request, the Department released some of the requested communications but withheld others. To obtain the unreleased documents, the Association filed an action in the Oregon District Court.(235) Although the Department released documents sporadically after the Association filed its claim, seven documents remained at issue when the district court heard the case. The district court found that the documents had "played a role in the agency's deliberations with regard to the current water rights adjudication" and that they there were exempt from release as "inter-agency or intra-agency memorandums or letters...."(236)

On appeal, the Ninth Circuit reversed the district court decision, and held that the documents submitted to BIA did not meet the inter agency/intra agency exemption test, and therefore were not exempt from disclosure under FOIA. Because of the "unique nature" of FOIA claims, a two-step process is used for the standard of review.(237) Under Minier v. Central Intelligence Agency,(238) a court first examines whether the district court had an "adequate factual basis" upon which to formulate its opinion; if this basis exists, the court then reviews the applicability of the FOIA exemption de novo.(239) Here, the court found that an adequate factual basis existed and proceeded de novo.

FOIA's primary objective is the disclosure of documents. Therefore, informational requests under FOIA should generally be granted unless the documents sought fall under one of the exemptions listed in section 552(b).(240) The Department argued that because the Tribes were acting as consultants in the KPOP process, and because the Department had requested the information from the Tribes, the communications were exempt from disclosure as inter agency/intra agency communications under section 552(b)(5). The Department asserted that under Formaldehyde Institute v. Department of Health,(241) a "functional test" should be used to evaluate the applicability of the exemption to each situation. Under this test, the important consideration is the role that "`the document plays in the process of agency deliberations.'"(242) In applying the functional test in Ryan v. Department of Justice,(243) the D.C. Circuit found that a document solicited by an agency and submitted by an outside party for use in agency deliberations constitutes inter agency or intra agency memoranda exempt from release under section 552(b)(5).(244) In the present case, the Ninth Circuit departed from both the focus of the functional test and the holding in Ryan to conclude that the Tribes' "direct interest in the subject matter of their consultations" precluded any exemption of their communications with the Department from disclosure.(245)

The Ninth Circuit had previously held that documents submitted to an agency by an external party as part of an administrative process were not exempt as inter agency memoranda.(246) The Department distinguished this precedent by asserting that in this case, it had requested the disputed documents from the Tribes. The court found this distinction unpersuasive and reiterated that the Tribes' interest in their discussions with the Department was the determinative factor in this case. Because the Tribes had the opportunity to advance their interests in the communications with the Department, exemption of these discussions from disclosure would effectively extend the protection of section 552(b)(5) to ex parte communications in a contested proceeding. Although the Tribes and the Association were not engaged in traditional litigation, the water fights adjudication was a contested matter related to the Department. Accordingly, undisclosed discourse between the Tribes and the Department was impermissible. The court acknowledged that although the Department had a duty to protect the interests of the tribe, it could "not afford them greater rights than they would have under the regulatory scheme" in this manner.(247) Based on these conclusions, the court held the documents did not meet the functional test of the inter agency/intra agency exemption, and they were subject to disclosure.

5. Washington v. Daley, 173 F.3d 1158 (9th Cir. 1999), supra Part III.

D. Attorney Fees

1. Marbled Murrelet v. Babbitt, 182 F.3d 1091 (9th Cir. 1999).

This case stems from a suit brought by an environmental non-profit organization, the Environmental Protection Information Center (EPIC), against the defendants, Pacific Lumber Company and the Fish and Wildlife Service (FWS). The suit challenged Pacific Lumber's timber harvest plan under two sections of the Endangered Species Act (ESA).(248) The section 7 claim alleged that FWS failed to prepare a biological opinion as required for "agency actions"(249) and that Pacific Lumber, in cooperating with FWS, had "assumed responsibility for compliance with federal laws governing the actions" of FWS.(250) EPIC's other claim argued that the proposed logging would "take" marbled murrelets in violation of section 9 of the ESA.(251)

Initially, the suit bounced up and down between the district court and the Ninth Circuit because Pacific Lumber questioned the grounds on which EPIC based its section 7 claim. The district court entered a preliminary injunction in favor of EPIC on the section 7 claim,(252) but the Ninth Circuit reversed because EPIC "had not raised any serious question."(253) In response, the plaintiffs added another section 7 claim. The district court once again entered a preliminary injunction and was again reversed by the Ninth Circuit for similar reasons.(254) Finally, on remand, the district court granted summary judgment in favor of Pacific Lumber on the section 7 claims, and EPIC voluntarily dismissed its remaining claim. Following summary judgment, Pacific Lumber moved for attorney's fees under section 11 of the ESA,(255) claiming that EPIC's section 9 suit had initially been frivolous and that EPIC continued to litigate the suit without supporting evidence. Section 11 allows attorney's fees "to any party" whenever "appropriate."(256) The district court denied the motion, concluding that Pacific Lumber did not meet either of two standards allowing attorney's fees.(257) Pacific Lumber appealed.

The Ninth Circuit affirmed the district court's decision and held that 1) the appropriate standard for attorney's fees under the ESA should be the standard used in civil rights cases, and 2) the district court did not abuse its discretion in refusing to award Pacific Lumber attorney's fees because EPIC's section 9 claim was neither frivolous when filed nor frivolous while EPIC continued to litigate the claim.

First, the court examined two standards governing attorney's fees. The Carson-Truckee standard(258) allows the district court to award attorney's fees to the prevailing defendants "only if the party has substantially contributed to the goals of the [ESA]."(259) The Christiansburg civil fights standard,(260) as applied in Razore v. Tulalip Tribes of Washington,(261) allows defendants attorney's fees for claims under the Clean Water Act (CWA)(262) and the Resource Conservation and Recovery Act (RCRA)(263) when a plaintiffs cause of action is frivolous.

The Ninth Circuit resolved to apply the Christiansburg standard instead of the Carson-Truckee standard because a subsequent Supreme Court decision indicates that the Carson-Truckee standard, as applied to the ESA, is no longer good law. In Pennsylvania v. Delaware Valley Citizen's Council (Delaware Valley),(264) the Supreme Court applied the Christiansburg standard to an environmental statute. It determined that the attorney's fees provisions of the Civil Rights Act and the Clean Air Act had "nearly identical" purposes and therefore should be interpreted similarly.(265)

In the instant case, the Ninth Circuit followed the same approach and compared the attorney's fees provisions of the Civil Rights Act with those of the ESA. Legislative history behind the civil rights attorney's fees provision(266) indicates that the provision was intended to prevent frivolous or unjustified suits.(267) Examining the legislative history of section 11 of the ESA reveals a similar purpose: Congress intended to award "fees only if the purpose of the suit was harassment."(268) Following the precedent of Delaware Valley, the court applied the civil rights standard to the ESA.

Second, the court explained that under the Christianburg standard, a prevailing defendant may receive attorney's fees either if the suit was frivolous when filed or if the "plaintiff continued to litigate the suit after it clearly became frivolous."(269) The court determined that neither of these two conditions had been met. Because EPIC based its suit on an expert witness' testimony, the suit was not frivolous when filed. Continuing to litigate the suit had also not been frivolous: "a case is not automatically meritless merely because the plaintiff eventually lost its case."(270) Evidence showed that the litigation may have influenced Pacific Lumber's decision on helicopter logging, while no evidence suggested that EPIC was or should have been on notice that the suit was frivolous. Accordingly, the Ninth Circuit upheld the application of the Christiansburg standard to attorney's fees provisions in environmental statutes.

2. United States v. Stone Container Corp., 196 F. 3d 1066 (9th Cir. 1999).

The Montana Coalition for Heath, Environmental, and Economic Rights (CHEER) gave a sixty-day notice of its intent to sue Stone Container Corporation (Stone) for violations of the Clean Air Act (CAA)(271) and other environmental statutes to both the corporation and to the United States Environmental Protection Agency (EPA). EPA consequently brought an enforcement action against Stone, and CHEER filed a citizen suit against Stone for violations of the CAA and various other environmental statutes. Three of CHEER's CAA allegations were essentially identical to the charges brought by the EPA.

CHEER negotiated a consent decree with Stone. The CHEER-Stone consent decree settled all claims that did not overlap with the United States suit, and Stone agreed to pay CHEER's attorney fees and costs for those claims. CHEER dismissed the remaining overlapping claims and then intervened in the EPA action, which was also eventually settled through a consent decree. Following the execution of both consent decrees, CHEER moved for attorneys' fees in the United States action. The district court denied the motion, concluding that CHEER could not recover attorneys' fees because its duplicative claims were precluded by the CAA's citizen suit provision.(272) Subsection Co) of section 304 prohibits the commencement of citizen suits when the United States "has commenced and is diligently prosecuting" an action on the same claims.(273) The district court held that CHEER was precluded from bringing the claims under subsection (a) and therefore, was not entitled to recover attorneys' fees.

On appeal, CHEER presented two arguments in favor of awarding attorneys' fees. First, CHEER contended that section 304(d) gives courts discretion in awarding attorneys' fees "whenever the court determines such award is appropriate."(274) Second, CHEER claimed that fees for the duplicative claims were appropriate because it had originally brought these claims pursuant to the citizen suit provision, section 304(a).(275)

The Ninth Circuit reviewed the request de novo and concluded that the plain language of section 304 does not authorize attorneys' fees for a party who intervenes in an action when the action is not brought under the citizen suit provision. It determined that "a court may award litigation costs ... only if the underlying action was brought pursuant to subsection (a)" of CAA section 304.(276) Because CHEER intervened in the United States action, which was brought under a separate section of the CAA, it was not eligible for attorneys' fees. Although a court has discretion under subsection (d) as to whether or not to award attorneys' fees, it only has this discretion with regards to "any action brought pursuant to subsection (a)."(277)

The court also refused to apply the reasoning of the Seventh Circuit in United States v. Environmental Waste Control, Inc. (EWCI),(278) which awarded fees to an intervening party in a Resource Conservation and Recovery Act (RCRA)(279) action brought by EPA. Although the underlying RCRA provision did not explicitly authorize attorneys' fees, the district court in EWCI determined that Congress intended for citizen group interveners to be able to recover such fees.(280) The Ninth Circuit determined that the plain language of the CAA and the lack of an intervenor fee provision in the statute supported its conclusion and distinguished this case from EWCI. In addition, the court pointed out that CHEER had already recovered attorneys' fees through the CHEER-Stone consent decree for its successful claims against Stone.

The court rejected CHEER's second argument on procedural grounds. The current appeal arose from the United States' action, which was not brought under section 304(a). Because CHEER's second argument based CHEER's eligibility for attorneys' fees for the duplicative claims on its initial citizen suit, a separate suit that was not the underlying action on appeal, the court refused to address the merits of the argument.

In dicta, the Ninth Circuit reemphasized the policy behind the citizen suit provisions in federal environmental statutes, which provides incentives to citizens to enforce environmental requirements when agencies fail to do so. The need for such incentives decreases when the agency has taken action, as EPA had in this case. The court recognized that incentives for interveners could also further the policy behind citizen suits. However, the court reserved that option for congressional action.

V. CONSTITUTIONAL CHALLENGES

1. United States v. Griefen, 200 F.3d 1256 (9th Cir. 2000).

During the summer of 1996, environmental activists vandalized and occupied the terminus of a Forest Service road in the Nez Perce National Forest of Idaho.(281) The activists dug trenches to make water flow across the road, removed drainage culverts, and built structures in the construction area that they then occupied. These structures were built of organic debris and metal and were placed in the roadbed. The activists hoped to interrupt construction on the road and inhibit a contracted timber sale to which the road led. The Forest Supervisor issued a Special Restriction, or "closure order," closing the area of the road in question to all but authorized personnel. Upon issuance of the closure order, Forest Service agents issued copies of the order to the protesters and told them to remove themselves from the construction area. Most of the protesters complied, but the petitioners did not. Forest Service agents forcibly removed petitioners from structures at the site. The petitioners were charged with violating section 551 of the Forest Service Organic Act,(282) as well as 36 C.F.R. sections 261.53(283) and 261.10(a).(284) A magistrate judge convicted the petitioners on both counts. The United States District Court for the District of Idaho affirmed the convictions.

The petitioners appealed their convictions to the Ninth Circuit. First, they claimed that the closure order operated as an unconstitutional prior restraint on their right to free speech under the First Amendment of the United States Constitution.(285) In a related argument, the petitioners also posited that the Forest Service possessed too much discretion in its ability to exclude protesters from the site. Second, three of the petitioners alleged that, as a matter of statutory construction, they did not "maintain"(286) the structures that they occupied in protest and therefore, were exempt from prosecution under the Forest Service regulation.

The Ninth Circuit review of the petitioners' First Amendment claim focused on whether the closure order issued under Forest Service regulations satisfied the three-part compelling interest test first enunciated in United States v. O'Brien(287) and reiterated in Ward v. Rock Against Racism.(288) This test establishes that 1) restrictions that inhibit the exercise of free speech rights must be content-neutral;(289) 2) such restrictions must be narrowly tailored to meet a "significant government interest;"(290) and 3) the restrictions must allow for sufficient alternative means of communication.(291)

In this case, the fact that the closure order restricted all public access to the road construction site demonstrated the content-neutral nature of the restriction. The Forest Service excluded all people--not just protesters--from the construction area in order to enable the contractors to fulfill their contractual obligations. The Ninth Circuit determined that a broadly applicable order did not as directly target petitioners' speech.

The second prong of the O'Brien test was also satisfied because the closure order furthered a compelling government interest by protecting health and safety. The Ninth Circuit held that the activists posed a substantial danger to the construction site, the contractors, themselves, and the public. Furthermore, vandalism by the protesters necessitated protection of the contractors' property located at the site. Also, the Forest Service's closure order merely excluded protestors from the site itself through a 150-foot buffer zone. Discussing Bay Area Peace Navy v. United States,(292) the court clarified that, although a 225-foot buffer was considered too broad in Bay Area Peace, the nature of a construction zone in this case required a moderate amount of space to avoid injury. The court deemed the 150-foot zone reasonable in this situation. Because the closure order commenced on the day construction was to begin and lasted for 45 days, the limited time frame helped to establish the overall reasonableness of the order.

Finally, the closure order satisfied the third prong of the O'Brien test because it allowed for ample alternative forums for petitioners' speech. The 150-foot buffer around the work zone allowed protesters to engage in their speech without interfering with the work or threatening the safety of the site. In this way, the activists could continue a non-destructive and non-obstructive protest near the construction site. The activists were free to use the remainder of the National Forest for protests as well. Therefore, because the closure order was content-neutral, narrowly tailored to achieve a legitimate government objective, and left open alternative avenues of communication, the order achieved the objectives of protecting the protesters, the contractors, and the public without unduly suppressing speech.

Petitioners also challenged the level of discretion given to the Forest Service when issuing the closure order. They argued that the closure acted as a permit system that granted the Forest Service unbridled discretion to refuse permission to speak in a public forum. While the Ninth Circuit inferred that such behavior is impermissible as a general rule, the court held that a permitting analysis was inappropriate in the instant case. The court determined that the road closure occurred pursuant to normal management policies, and petitioners' request to occupy the site during construction activities "reveal[ed] [a] lack of reason."(293) In sum, the court held that the closure order represented a reasonable limitation on the free speech fights of the activists, so long as such an order was not a pretext to quell speech. Likening the closure order to closing the area around the Washington monument during its renovation, the Ninth Circuit determined that petitioners had no First Amendment right to protest lawful road-building activity "in the path of tractors and earth movers."(294)

The second thrust of petitioners' appeal involved the meaning of the word "maintain" in the Forest Service regulations.(295) First, petitioners advanced that "maintain" in the regulation required more than simple occupancy. Second, petitioners argued that "maintain" was an ambiguous term, and that the regulation was void under the rule of lenity and the void-for-vagueness doctrine.

The Ninth Circuit had no difficulty in defining "maintain" to include the activities in which petitioners engaged at the time of their arrest. Citing Webster's dictionary(296) and earlier Eleventh Circuit decisions,(297) the court held that "maintain" included defending, preserving, and protecting-activities that encompassed petitioners' refusal to leave the structures at the site. The court noted that an object as simple as a tripod could be "maintained" under the terms of the regulation if it impeded traffic.(298) Because petitioners refused to leave the structures when directed by lawful authority, they were guilty of maintaining the structures.

Adopting the logic of United States v. Scranton,(299) the Ninth Circuit determined that section 261.10(a) was not ambiguous. The "grievous ambiguity" standard of the rule of lenity(300) could not be met, and, therefore the rule was inapplicable to petitioners. The Ninth Circuit similarly held that the void-for-vagueness doctrine was inapposite in the instant case. Relying on its previous exposition of the term "maintain," the court simply stated that "th[e] [void-for-vagueness] argument fails."(301)

(1) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. V. 1999).

(2) Boeing Co. v. Cascade Corp., 920 F. Supp. 1121 (D. Or. 1996).

(3) Id. at 1183.

(4) 42 U.S.C. [sections] 9607(a)(4) (1994 & Supp. V 1999).

(5) Id.

(6) Boeing, 207 F.3d at 1184 (internal quotations omitted). The court illustrated the principle of causal overdetermination with an example of a light controlled by two switches. Where two parties simultaneously flip the switches, both parties have equal claim that they are not responsible for the light. It defies logic to deny that either Party (and by extension, neither party) turned on the light. Therefore, because the light turned on, both parties are responsible.

(7) 40 C.F.R. [sections] 300. 160(a)(1) (1999).

(8) 42 U.S.C. [sections] 9613(f)(1) (1994).

(9) Boeing, 207 F.3d at 1187.

(10) 42 U.S.C. [sections] 9607 (1994 & Supp. V 1999).

(11) See id [sections] 9613 (1994).

(12) Id. [sections] (994) & (1904 & Supp. V 1999).

(13) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321--4347 (1994 & Supp. III 1990.

(14) West v. Secretary of the Dep't of Tramp., 206 F.3d 920, 930 (9th Cir. 2000).

(15) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3106, 3344, 4301, 5335, 7521 (1994 & Supp. IV 1998).

(16) 40 C.F.R. [sections] 1507.3 (b)(2) (1999).

(17) 23 C.F.R. [sections] 771.117(a) (1999).

(18) See 40 C.F.R. [sections] 1508.4 (1999) and 23 C.F.R. [sections] 771.117(a) (1999).

(19) 23 C.F.R. [sections] 771.117(d).

(20) Id. [sections] 771.117(d)(7).

(21) West, 206 F.3d at 928.

(22) 23 C.F.R. [sections] 771.117(a) (1999).

(23) West, 206 F.3d at 929 n.10.

(24) Id. at 931 ("No order of this Court can alchemize concrete and asphalt into blueprint.").

(25) Id, (citing Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998)).

(26) Id. at 931 (Alaska Cir. for the Env't v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999) (internal quotes omitted).

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

(28) Id. [sections] 1369 (b) (1) (F)(1994).

(29) Id. [sections] 1342(p)(2)(B) 1994 & Supp. III 1997).

(30) Id. [subsections] 1342(p)(2)(C), 1342(p)(2)(D).

(31) Id. [sections] 1342(p)(3)(A).

(32) Id. [sections] 1342(p)(3)(B)(iii).

(33) Id. [sections] 1311(b)(1)(C).

(34) 467 U.S. 837, 844 0984).

(35) Defenders of Wildlife v. Browner, 191 F.3d 1159, 1162 (9th Cir. 1999) (quoting Chevron, 467 U.S. at 843, 844).

(36) Rusello v. U.S., 464 U.S. & 16, 23 (1983).

(37) 33 U.S.C. [sections] 1342(r)(3)(B)(iii) (1994 & Supp. III 1997).

(38) 179 F.3d 630 (9th Cir. 1999).

(39) Id. at 634.

(40) 966 F.2d 1292 (9th Cir. 1992).

(41) Id. at 1308.

(42) 33 U.S.C. [sections] 1342(r)(3)(B)(iii) (1994 & Supp. III 1997).

(43) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1386, 1345 (1994 & Supp. IV 1998).

(44) Id. [sections] 1345(e).

(45) Id. [sections] 1319(c)(2).

(46) Id. [sections] 1345(e).

(47) Standards for the Use or Disposal of Sewagse Sludge, 40 C.F.R. [sections] 503 (1999).

(48) Id. [sections] 503.

(49) Id.

(50) 33 U.S.C. [sections] 1345 (1994 & Supp. IV 1998).

(51) Id. [sections] 1292(2). This section defines "treatment works" for purposes of the Cleon Water Act

(52) Id. [sections] 1345(a), (b), (f).

(53) Id. [sections] 1345(d). The regulations are found at 40 C.F.R. [sections] 503, which includes "general requirements pollutant limits, management practices, and operational standards, for the final use or disposal of sewage sludge generated during the treatment of domestic sewage in a treatment works" as the subject of the regulations. 40 C.F.R. [sections] 508.1(a)(1) (1999).

(54) 40 C.F.R. [sections] 503.3. EPA required that the regulations apply to all use and disposal of sewage material whether implemented in a permit or through direct enforcement in the absence of a permit.

(55) Id. [sections] 503.3(b)

(56) 33 U.S.C. [sections] 1345(f)(1)-(2)(1994 & Supp. IV 1998).

(57) 40 C.F.R. [sections] 503.9(w) ("Sewage sludge is solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge."); Id. [sections] 503.9(f) ("Domestic septage is either liquid or solid materials removed from a septic tank, cesspool, portable toilet, or Type III marine sanitation device, or similar treatment works that receives only domestic sewage.").

(58) Id. [sections] 508.9(z) ("[T]reatment of sewage sludge is the preparation of sewage sludge for final use or disposal. This includes, but is not limited to, thickening, stabilization, and dewatering of sewage sludge ... [or] storage of sewage sludge."); Id. [sections] 503.9(aa) ("Treatment works is either a federally owned, publicly owned, or privately owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature.").

(59) Id. [sections] 122.2 ("Treatment works treating domestic sewage means a POTW or any other sewage sludge or waste water treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated for the disposal of sewage sludge. This definition does not include septic tanks or similar devices.").

(60) 33 U.S.C. [sections]1345(a). The permit program under this section is the National Pollutant Discharge Elimination System (NPDES).

(61) NPDES Sewage Sludge Permit Regulations;, State Sludge Management Program Requirements, 54 Fed. Reg. 18,716, 18,718 (1989).

(62) See Standards for the Use or Disposal of Sewage Sludge, 58 Fed. Reg. 9248, 9362 (1993).

(63) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1990.

(64) U.S. SENTENCING GUIDELINES MANUAL, [sections] 2Q1.1(b)(1)(a) (1998).

(65) United States v. Van Loben Sels, 198 F.3d 1161, 1163 (9th Cir. 1999).

(66) Id. at 1164.

(67) 994 F.2d 658 (9th Cir. 1993).

(68) UNITED STATES SENTENCING GUIDELINE MANUAL, [sections] 2Q1.2, application note 5 (1998).

(69) Ferrin, 198 F.3d at 1165.

(70) Id.

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

(72) 16 U.S.C. [sections] 1532(9) (1994).

(73) Defenders of Wildlife v. Bernal, 204 F.3d 920, 926 (9th Cir. 2000).

(74) Id. at 930.

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

(76) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3106, 3344 (1994 & Supp. IV 1998).

(77) Id. [subsections] 702, 704.

(78) Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

(79) See, e.g., Dalton v. Specter, 511 U.S. 462, 468(1994).

(80) 5 U.S.C. [sections] 706(1) (1994).

(81) Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999).

(82) Aluminum Co. of Am. v. Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999).

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

(84) Id. [sections] 1536(b)(3)(A).

(85) This case is the latest in a series of cases dealing with salmon and BPA. See Pacific Northwest Generating Coop. v. Brown, 38 F.3d 1058 (9th Cir. 1994) (litigation challenging a 1992 BiOp) and Idaho Dep't of Fish and Game v. National Marine Fisheries Serv. 850 F. Supp. 866 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995) (litigation challenging a 1993 BiOp).

(86) 5 U.S.C. [subsections] 551-4559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998),

(87) 175 F.3d at i 163, citing Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. [sections] 839 (1994).

(88) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4347 (1994 & Supp. [] 1997).

(89) See 16 U.S.C. [sections] 839f(e)(2) (1994); 5 U.S.C. [sections] 706(2)(A).

(90) Aluminum Co. of Am. v. Bonneville Power Admin., 175 F.3d 1156, 1161 (9th Cir. 1999).

(91) Id.

(92) Id. at 1163.

(93) Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. [sections] 839(2) (1994).

(94) See Northwest Resource Info. Ctr. v. Northwest Power Planning Council, 35 F.3d 1371 (9th Ctr. 1994).

(95) Id. at 1378 (internal quotations omitted).

(96) 42 U.S.C. [sections] 4332(2)(C)(i) (1994).

(97) 16 U.S.C. [subsections] 791-828c (1994 & Supp. III 1997).

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

(99) 16 U.S.C. [subsections] 803(j), 811 (1994).

(100) See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).

(101) Id.

(102) Id. at 843-44.

(103) Id. at 844.

(104) American Rivers v. Federal Energy Regulatory Comm'n, 201 F.3d 1186, 1195 (9th Cir. 1999).

(105) Id.

(106) Electric Consumers Protection Act of 1986, 16 U.S.C. [subsections] 797(e), 803(a)(1), 8030). See H.R. Conf. Rep. No. 99-934, at 21-22 (1986), reprinted in 1986 U.S.C.C.A.N. at 2537, 2538.

(107) American Rivers, 201 F.3d at 1197.

(108) Id. at 1196.

(109) 16 U.S.C. [sections] 803(j) (1994).

(110) Id. [sections] 8030(j)(1).

(111) 201 F.3d at 1202-03.

(112) 746 F.2d 466 (9th Cir. 1984).

(113) Id. at 470, 475.

(114) 952 F.2d 538 (D.C. Cir. 1992).

(115) Id. at 546.

(116) 42 U.S.C. [sections] 4332(2)(C)(iii) (1994 & Supp. III 1997).

(117) 201 F.3d at 1199.

(118) See Oregon Natural Resources Council v. Lowe, 109 F.3d 521,526 (9th Cir. 1997).

(119) Carmel-by-the-Sea v. United States Dept of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).

(120) 40 C.F.R. [sections] 1502.14(a) (1999).

(121) American Rivers v. Federal Energy Regulatory Comm'n, 187 F.3d 1007, 1021 (9th Cir. 2000), amended by 201 F.3d 1186, 1201 (9th Cir. 2000).

(122) 16 U.S.C. [sections] 803(j)(1) (1994 & Supp. III 1997).

(123) Id. [sections] 811.

(124) Id. [sections] 803(j)(1).

(125) Id.

(126) 912 F.2d 1471, 1480 (D.C. Cir. 1990).

(127) Kelley v. Federal Energy Regulatory Comm'n, 96 F.3d 1482, 1486 (D.C. Cir. 1996).

(128) United States Dep't of Interior v. Federal Energy Regulatory Comm'n, 952 F.2d 538 (D.C. Cir. 1992).

(129) Steamboaters v. Federal Energy Regulatory Comm'n, 759 F.2d 1382, 1388 (9th Cir. 1985).

(130) 16 U.S.C. [sections] 797(e) (1994 & Supp. III 1997) (granting Secretary of Interior power to impose requirements on FERC licenses issued on Native American reservations).

(131) Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772 (1984).

(132) American Rivers v. Federal Energy Regulatory Comm'n, 201 F.3d 1186, 1207 (9th Cir. 2000).

(133) Escondido, 466 U.S. at 780-81.

(134) Klamath Water Users Protective Assoc. v. Patterson, 203 F.3d 1175 (9th Cir. 2000).

(135) Klamath Water Users Protective Assoc. v. Patterson, 191 F.3d 1115, 1123 (9th Cir. 1999), amended and superceded by, 204 F.3d 1206 (9th Cir. 2000), amended by, 203 F.3d 1175 (9th Cir. 2000).

(136) Klamath Water Users Protective Assoc., 203 F.3d at 1176.

(137) 43 C.F.R. [sections] 4180.1 (1998).

(138) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

(139) 187 F.3d 1035 (9th Cir. 1999).

(140) 43 C.F.R. [sections] 4180.2(c) (1998).

(141) 43 C.F.R. [subsections] 4110, 4120, 4130, 4160 (1998).

(142) Idaho Watersheds Project v. Hahn, 187 F.3d 1035, 1037 (9th Cir. 1999).

(143) National Forest Management Act of 1976, 16 U.S.C. [subsections] 472a, 521b, 1600, 1611-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L No. 93-378, 88 Stat. 476).

(144) Administrative Procedure Act, 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

(145) 523 U.S. 726 (1998).

(146) Id. at 733.

(147) Wilderness Society v. Thomas, 188 F.3d 1130, 1133 (9th Cir. 1999).

(148) Id. at 1133-34.

(149) Id. at 1134.

(150) Id.

(151) Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734 (1998).

(152) 36 C.F.R. [subsections] 219.20, 219.3 (1999).

(153) 188 F.3d at 1135 (citing Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994)).

(154) 36 C.F.R. [sections] 219.20 (1999).

(155) Id.

(156) 188 F.3d at 1136.

(157) 16 U.S.C. [subsections] 470-470x-6 (1994 & Supp. IV 1998).

(158) National Environmental Policy Act of 1960, 42 U.S.C. [subsections] 4321-4347d (1994 & Supp. III 1997).

(159) Federal land Policy and Management Act of 1976, 43 U.S.C. [subsections] 1701-1782 (1994 & Supp. III 1997).

(160) Id. [sections] 1716.

(161) 36 C.F.R. [sections] 800.1(c)(2)(iii) (1998).

(162) 50 F.3d 856 (10th Cir. 1995).

(163) Id. at 860.

(164) Id.

(165) 177 F.3d at 807 (9th Cir. 1999).

(166) 36 C.F.R. [sections] 800.9(c)(2) (1998) (amended 1999).

(167) [sections] 800.9(b).

(168) [sections] 800.9(c)(1).

(169) [sections] 800.9(c)(3).

(170) Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800, 811 (9th Cir. 1999).

(171) See 40 C.F.R. [sections] 1508.28 (1999).

(172) 177 F.3d at 812.

(173) Id. at 815.

(174) Alaska v. Babbitt, 182 F.3d 672, 674 (9th Cir. 1999).

(175) 28 U.S.C. [sections] 2409a (1994).

(176) Block v. North Dakota, 461 U.S. 273, 286 (1983).

(177) 28 U.S.C. [sections] 2409a (1994).

(178) Alaska v. Babbitt, 38 F.3d 1068 (9th Cir. 1994).

(179) Id. at 1076.

(180) Id.

(181) State of Alaska, Department of Transportation and Public Facilities, 140 IBLA 205 (1997).

(182) Id.

(183) Id.

(184) Johnson v. Gila River Indian Community, 174 F.3d 1032, 1034-35 (9th Cir. 1999).

(185) Id. at 1035.

(186) 25 U.S.C. [subsections] 1301-1341 (1994).

(187) 174 F.3d at 1035.

(188) Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

(189) Id. at 59.

(190) 28 U.S.C. [sections] 1332 (1994 & Supp. III 1997).

(191) Iowa Mut Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987).

(192) Id. at 19 n.12 (citing National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 856 n.21 (1985)).

(193) Krempel v. Prairie Island Indian Community, 125 F.3d 621, 622 (8th Cir. 1997).

(194) The Ninth Circuit noted that "[a]lthough these cases were not formally consolidated in the district court, we combine them in this opinion because the cases challenge the same regulation and share common issues." Washington v. Daley, 173 F.3d 1158, 1161 (9th Cir. 1999).

(195) No. 97-35680 (W.D. Wash. filed July 3, 1996).

(196) No. 97-36008 CD. Or. filed June 26, 1996).

(197) 16 U.S.C. [sections] 1801-1882 (1994).

(198) Id. 99 1852-1861, 9 1854(a)(1)(A).

(199) Id. [sections] 1854(c)(1).

(200) Article IV of the treaty with the Makah Tribe reserves to them "the right (to harvest whiting within their] usual and accustomed [fishing] grounds." 12 Stat 939, 940 (Jan. 31, 1855).

(201) No. 97-35680 (W.D. Wash. filed July 3, 1996); No. 97-36008 (D. Or. filed June 26, 1996).

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

(203) Regulatory Flexibility Act, 5 U.S.C. [subsections] 601-612 (1994 & Supp. III 1997).

(204) FED. 17. CIV. P. 19.

(205) Washington v. Daley, 173 F.3d 1158, 1164 (9th Cir. 1999).

(206) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

(207) United States v. Washington, 157 F.3d 630 (9th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3437 (U.S. Dec. 22, 1998) (No. 98-1028).

(208) Id.

(209) Washington v. Daley, 173 F.3d 1158, 1165 (9th Cir. 1999). See Untried States v. Washington, 157 F.3d 630, 644 (9th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3437 (U.S. Dec. 22, 1998) (No. 98-1028).

(210) 910 F.2d 555 (9th Cir. 1990).

(211) Id. at 558-60.

(212) Id. at 558; see also FED. R. CIV. P. 19(a).

(213) FED. R. CIV. P. 19(a)(2).

(214) Daley, 173 F.3d at 1167.

(215) Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992) (internal quotations omitted).

(216) Daley, 173 F.3d at 1167. The court contrasted this case with Verity, where the United States would have had to represent the Makah's interests and the conflicting interests of the other absent tribes if the Makah were not necessary parties.

(217) Id. at 1170.

(218) Endangered Species Act of 1973, 16 U.S.C. [sections] 1536(a)(2) (1994).

(219) The Magnuson-Stevens Act defines "bycatch" as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program." Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. [sections] 1802(2) (1994).

(220) 5 U.S.C. [subsections] 602, 605(b) (1994 & Supp. III 1997).

(221) 173 F.3d at 1171.

(222) Id.

(223) Despite affirming the district court's decision in an unpublished memorandum, the Ninth Circuit (with United States District Judge Fogel of the Northern District of California sitting by designation) nevertheless published this opinion, apparently to provide a binding ruling on the notice issue: "We conclude that publication of notice in the Federal Register was insufficient to trigger the statute of limitations because BLM had a duty to give appellant's predecessor in interest personal notice of the proposed transfer. In an unpublished memorandum filed herewith, however, we conclude that appellant's claims nevertheless are time-barred because his predecessor in interest had actual notice of the transfer outside the limitations period. We therefore will affirm the judgment." Camp v. Bureau of Land Management, 183 F.3d 1141, 1142 (9th Cir. 1999) cert. denied, 120 S. Ct 1244 (2000).

(224) Administrative Procedure Act, 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

(225) 28 U.S.C. [sections] 2409a (1994).

(226) See 43 C.F.R. [sections] 2201.1(e) (1998) ("The notice of realty action shall be sent to ... adjoining landowners").

(227) 43 C.F.R. [sections] 2803.6-5(a) (1998).

(228) 44 U.S.C. [sections] 1507 (1994).

(229) 881 F.2d 663 (9th Cir. 1989).

(230) Id. at 667-68.

(231) 906 F.2d 1362 (9th Cir. 1990).

(232) Id. at 1364-65.

(233) Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. [sections] 552 (1994)).

(234) Id. [sections] 552(b)(5) 0994).

(235) Klamath Water Users Protective Ass'n v. United States (Klamath Water Users), 189 F.3d 1034,1036 (9th Cir. 1999).

(236) Id. See also 5 U.S.C. [sections] 552(b)(5) (1994).

(237) Klamath Water Users, 189 F.3d at 1036.

(238) 88 F.3d 796 (9th Cir. 1996).

(239) Id. at 800.

(240) 5 U.S.C. [sections] 552(b)(5) (1994).

(241) 889 F.2d 1118, 1123 (D.C. Cir. 1989).

(242) Id. at 1118 (quoting CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1161-62 (D.C. Cir. 1987)).

(243) 617 F.2d 781 (D.C. Cir. 1980).

(244) 5 U.S.C. [sections] 552(b)(5) (1994).

(245) Klamath Water Users, 189 F.3d at 1038.

(246) See Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 984-85 (9th Cir. 1985).

(247) Klamath Water Users, 189 F.3d at 1038 (citing Skokomish Indian Tribe v. Federal Energy Regulatory Comm'n, 121 F.3d 1303, 1308 (9th Cir. 1997)).

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

(249) Id. [sections] 1532.

(250) Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1093 (9th Cir. 1999).

(251) 16 U.S.C. [sections] 1538 (1994).

(252) 182 F.3d at 1093.

(253) Id. (citing Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996)).

(254) Id. (citing Marbled Murrelet v. Babbitt, 111 F.3d 1447 (9th Cir. 1997)).

(255) 16 U.S.C. [sections] 1540 (1994).

(256) 16 U.S.C. [sections] 1540(g)(4).

(257) 182 F.3d at 1093.

(258) Carson-Truckee Water Conservancy Disc v. Secretary of the Interior (Carson-Truckee), 748 F.2d 523 (9th Cir. 1995).

(259) Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094 (9th Cir. 1999) (citing Carson-Truckee, 748 F.2d at 525-26).

(260) Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n (Christiansburg), 434 U.S. 412 (1978).

(261) 66 F.3d 236 (9th Cir. 1995).

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

(263) 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. 86-272, 79 Stat. 992).

(264) 478 U.S. 546 (1986).

(265) Id. at 559.

(266) 42 U.S.C. [sections] 1988 (1994 & Supp. III 1997).

(267) 478 U.S. at 560 (citing S. Rep. No. 91-1196, at 36 (1970)).

(268) Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1095 (9th Cir. 1999) (citing 1972 U.S.C.C.A.N. 4234, 4249-50). One difference between the two provisions is that the ESA does not require that the party moving for attorney's fees must be the prevailing party while section 1988 does so require. However, this difference is irrelevant because the Supreme Court has interpreted the ESA to require that the prevailing party be the one that moves for attorney's fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 & n.1 (1983)

(269) 182 F.3d at 1096.

(270) Id.

(271) 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997).

(272) Id. [sections] 7604.

(273) Id. [sections] 7604(b)(1)(B).

(274) Id. [sections] 7604(d).

(275) Id. [sections] 7604(a).

(276) United States v. Stone Container Corp., 196 F.3d 1066, 1068 (9th Cir. 1999).

(277) 42 U.S.C. [sections] 7604(a) (1994).

(278) 710 F. Supp. 1172 (N.D. Ind. 1989), aff'd, 917 F.2d 327 (7th Cir. 1990).

(279) 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).

(280) Environmental Waste Control, Inc., 710 F. Supp. at 1248.

(281) During the subsequent summer of 1997, a different group of protesters again vandalized a portion of a logging road in the Nez Perce National Forest and similarly erected and occupied various traffic-impeding structures. The Forest Service forcibly removed these protesters and charged them with violating 36 C.F.R. section 261.10(a). 36 C.F.R. [sections] 261.10(a) (1999). In their appeal to the Ninth Circuit, the protesters raised the same defenses of vagueness and lenity against [sections] 261.10(a) as the petitioners in Griefen. United States v. Mack, 200 F.3d 653 (9th Cir. 2000). The Ninth Circuit affirmed the convictions.

Citing Griefen, the Ninth Circuit denied the vagueness and lenity arguments. Id. at 65657. The district court found that the Mack petitioners violated 36 C.F.R. [sections] 261.12(d) by impeding access to and use of a Forest Service road. 36 C.F.R. [sections] 261.12(d) (1999) (violation of the regulation to "[b]lock[], restrict[], or otherwise interfer[e] with the use of a [Forest Service] road"). The Mack petitioners argued that they did not impede traffic because the road was closed to vehicle traffic on the day of their arrest and thus foot traffic could pass the structures unhindered. Mack, 200 F.3d at 657. The Ninth Circuit disagreed that [sections] 261.12 (d) carried so narrow a meaning, determined that the plain language of the regulation prohibited the behavior in question, and that the Mack petitioners nevertheless impeded the Forest Service vehicles that tried to remove them. Id.

Also, the Ninth Circuit held that when the trial court denied the Mack petitioners permission to make environmentalism speeches during the allocution phase of sentencing, the trial court did not err. Id. at 657-58. Finally, the Mack petitioners alleged that the trial court improperly increased their sentences upon conviction because they had demanded a n/al. The Ninth Circuit determined that although a co-defendant who pleaded guilty at trial received a considerably lighter sentence, it was the "recalcitrance" of the Mack petitioners that triggered the harsher penalties. Id. at 658-59.

(282) Organic Administration Act of 1897, Act of June 4, 1897, ch. 2, 30 Stat. II, 34-36 (codified as amended at 16 U.S.C. [subsections] 473-482, 551 (1994 & Supp. Ill 1997).

(283) 36 C.F.R. [sections] 261.53 (1999).

(284) 36 C.F.R. [sections] 261.10(a) (1999).

(285) U.S. CONST. amend. I, cl. 2 ("Congress shall make no law ... abridging the freedom of speech....").

(286) "The following are prohibited: [c]onstructing, placing, or maintaining any kind of ... structure, ... enclosure, or other improvement on National Forest system land ... without a special-use authorization...." 36 C.F.R. [sections] 261.10(a) (1999) (emphasis added).

(287) 391 U.S. 367, 377 (1968).

(288) 491 U.S. 781, 789 (1989).

(289) United States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000).

(290) Id.

(291) Id.

(292) 914 F.2d 1224 (9th Cir. 1990).

(293) Griefen, 200 F.3d at 1263.

(294) Id. at 1265.

(295) "The following are prohibited: [c]onstructing, placing, or maintaining any kind ... structure, ... [or] enclosure, ... on National Forest system land ... without a special-use authorization...." 36 C.F.R. [sections] 261.10(a) (1999).

(296) WEBSTER'S NEW RIVERSIDE UNIVERSITY DICTIONARY 717 (1984).

(297) United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992).

(298) See United States v. Scranton, 25 F. Supp. 2d 1131, 1132 (D. Idaho 199T). See also United States v. Mack, 200 F.3d 653, 655-56 (9th Cir. 2000).

(299) 25 F. Supp. 2d at 1132.

(300) United States v. Griefen, 200 F.3d 1256, 1266 (9th Cir. 2000).

(301) Id.