Case summaries.

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

1. Alaska, Department of Environmental Conservation v. United States Environmental Protection Agency, 298 F.3d 814 (9th Cir. 2002), cert. granted, 123 S. Ct. 1253 (2003).

Notwithstanding a prior Environmental Protection Agency (EPA) order of noncompliance, the Alaska Department of Environmental Conservation (ADEC) issued a Prevention of Significant Deterioration (PSD) permit to Teck Cominco Alaska (Cominco), the operator of the Red Dog Mine facility, which allowed Cominco to install a level of emission control technology lower than what EPA determined to be best available control technology (BACT). Following ADEC's issuance of the permit, EPA issued two additional noncompliance orders prohibiting commencement of Cominco's proposed construction. ADEC and Cominco subsequently requested review of EPA's enforcement orders, arguing that EPA did not have the authority to issue the orders and that EPA abused its discretion in rejecting ADEC's determination of the BACT for the mine. The Ninth Circuit held that EPA did have authority to issue the enforcement orders at issue, and that EPA's rejection of ADEC's BACT determination was not arbitrary and capricious.

Under the Clean Air Act (CAA), (1) a state may implement the federal requirements of the statute if EPA approves its state implementation plan (SIP). (2) Alaska's SIP designates ADEC as the PSD permit issuer. ADEC's PSD permit process requires applicants to implement the BACT in their emission control proposals.

In Cominco's PSD permit application to ADEC, regarding the modification of an existing generator (MG-5) to increase nitrogen oxides (N[O.sub.x]) emissions, Cominco intended to install "Low N[O.sub.x]" as its emission control technology. Upon ADEC's review of Cominco's application, ADEC determined that Low N[O.sub.x] was not BACT for MG-5 and that an alternative technology, Selective Catalytic Reduction (SCR), was BACT. After receiving ADEC's determination regarding BACT for its proposed generator, Cominco suggested an alternative to installing SCR on MG-5. Cominco suggested that it implement Low N[O.sub.x] technology on all of its existing generators and on a proposed seventh generator (MG-17). ADEC subsequently accepted Cominco's proposal because installation of Low N[O.sub.x] on all of the existing generators would reduce the total N[O.sub.x] "output from the Mine to a level comparable to that which would result were SCR installed in only the MG-5 and MG-17 generators." (3)

After ADEC's acceptance of Cominco's proposal to install only Low N[O.sub.x] technology on its generators, the National Park Service requested that EPA become involved. In a letter to ADEC, EPA explained that the BACT for the two generators, MG-5 and MG-17, was SCR. Furthermore, EPA rejected the notion that ADEC could grant Cominco a substitution to install a level of technology lower than the BACT so long as the decrease in emissions was the same. Despite receiving this letter from EPA, ADEC concluded in its decision on Cominco's permit that because of the financial burden associated with installation of SCR that Low N[O.sub.x] was the BACT. In EPA's subsequent review of ADEC's permit decision, EPA asserted "that Cominco had not adequately demonstrated why SCR was economically infeasible." (4)

Thereafter negotiations began between EPA, ADEC, and Cominco. The negotiations resulted in a resolution that Low N[O.sub.x] was sufficient BACT for MG-1, MG-3, MG-4, and MG-5. (5) However, the parties were still unclear and did not reach a resolution on the BACT for MG-17. EPA then issued a Finding of Noncompliance Order "stating that ADEC's authorization of Cominco's construction and installation of new equipment" did not comply with the CAA or the Alaska SIP and ordered ADEC to withhold Cominco's permit. (6) ADEC disregarded EPA's order and issued the PSD permit. Later EPA issued a second order to Cominco to prevent them from beginning construction on the MG-17 generator. EPA's third order modified the second order and permitted Cominco to perform certain construction measures that were required to be completed during the summer.

On review, the Ninth Circuit first reviewed its prior order (7) responding to an objection by EPA that the court did not have jurisdiction. The Ninth Circuit explained that it had considered the language in section 307(b)(1) of the CAA (8) and had found that it had subject matter jurisdiction pursuant to the Act because the orders issued to ADEC and Cominco were "final agency action." (9) In considering the merits of the case, the Ninth Circuit held that because of the "plain text, structure, and history" (10) of the CAA, EPA had authority to issue the enforcement orders. The court cited EPA's enforcement powers as detailed in sections 113(a)(5) and 167 of the CAA. (11)

Section 113(a)(5) discusses EPA's authority with regards to construction or modification of sources. Subsection (A) states that EPA may "issue an order prohibiting the construction or modification of any ... source in any area." (12) Subsections (B) and (C) provide that EPA may issue penalty orders or "bring a civil action" if a state is not complying with the PSD requirements regarding construction or modification of sources. (13) Section 167 requires EPA to take steps, including issuance of an order, to ensure that construction or modification of facilities meet the PSD program requirements. (14) Therefore, the court found that once EPA determined that ADEC and Cominco were not complying with the PSD requirements by refusing to implement the BACT, it was authorized to issue orders.

The Ninth Circuit found additional support for EPA's enforcement authority in the legislative history of the CAA. The court considered amendments to the statute in finding that EPA's authority included evaluating whether a state's determination of the BACT is proper. For example, in the 1970 amendments Congress acted to ensure compliance with the CAA's requirements even "'if the State failed to adopt, implement, or enforce the necessary measures.'" (15) Furthermore, the PSD program, which set forth acceptable decreases in air quality in clean air areas, was established in the 1977 amendments. Finally, the court considered the 1990 amendments as support for EPA's enforcement authority because amendments to section 113(a)(5) specifically stated that EPA had enforcement authority when a state fails to "comply with 'any requirement or prohibition' of the Act relating to new or modified sources." (16) Thus, the Ninth Circuit held that EPA's authority included the ability to determine if a state's conclusion regarding the BACT was in accord with the requirements of the CAA.

ADEC and Cominco argued that because EPA had granted ADEC authority to issue PSD permits and determine the BACT, EPA did not have the authority to determine the BACT contradictory to ADEC's determination and that therefore EPA's orders were invalid. The Ninth Circuit rejected this argument because it found no support for it in the statutory language. The court explained that the definition of BACT in section 169(3) did not place any restrictions on EPA's enforcement abilities. (17)

In addition, ADEC and Cominco argued that EPA's review was limited to determining whether the State met certain requirements and that EPA could not overturn the State's determination of the BACT. The court also found no support for this argument. The court actually found that the evidence ADEC and Cominco provided, a legal memorandum prepared by EPA, supported EPA's position. The memorandum at issue clarified the State's obligations in determining the BACT. The memorandum stated that if a state provides a "reasoned justification of the basis for its decision" (18) EPA could not overturn the state's determination. The court found that EPA was required to determine the reasonableness of Alaska's determination and upheld the agency's orders based on the State's unreasonableness.

Finally, ADEC and Cominco argued that EPA erred because ADEC's determination of the BACT complied with the CAA. The court commented on the common "top-down" method of determining the BACT, which ADEC purportedly applied. (19) In applying this method, "[t]he most stringent technology is BACT unless the applicant can show that it is not technically feasible, or if energy, environmental, or economic impacts justify a conclusion that it is not achievable." (20) The court explained that states must act reasonably in their administration of the "top-down" method and that ADEC's actions in this case were unreasonable.

ADEC rejected SCR as the BACT on solely financial rationales. Although rejecting BACT for economic reasons is acceptable, ADEC did not demonstrate that the circumstances surrounding the mine justified a rejection of SCR. ADEC adopted its own reasons for economic infeasibility, including that the cost of SCR would be excessive and would harm the public interest that had benefited from a reversal in unemployment rates since the mine opened. The court rejected ADEC's justification as unacceptable under the "top-down" approach and explained that behavior like that was one of the reasons Congress granted EPA enforcement authority "to protect states from industry pressure to issue ill-advised permits." (21) Therefore, the court concluded that EPA's decision that ADEC's actions finding were unreasonable was not arbitrary and capricious.

2. United States v. Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002), infra Part III.

3. United States v. Dahl, 314 F.3d 976 (9th Cir. 2002), cert. denied, 123 S. Ct. 2589 (2003), infra Part III.

4. Public Citizen v. United States Department of Transportation, 316 F.3d 1002 (9th Cir. 2003), infra Part I.E.

B. Clean Water Act

1. Tillamook County v. United States Army Corps of Engineers, 288 F.3d 1140 (9th Cir. 2002).

Tillamook County (the County) sought to enjoin the Army Corps of Engineers (the Corps) from issuing a permit under section 404 of the Clean Water Act (CWA) (22) to the City of McMinnville (the City) to enlarge its municipal water supply reservoir along the Nestucca River. The County argued that the Corps violated the National Environmental Policy Act (NEPA) (23) as well as the CWA. The district court denied the County's request for a preliminary injunction; and the Ninth Circuit affirmed, holding that the Corps' environmental assessment (EA) was adequate.

The City sought to expand the reservoir to avert water shortages expected to occur between 2002 and 2020. The expansion included the placement of dredge and fill material into navigable waters, requiring a section 404 permit from the Corps. (24) Because issuance of a section 404 permit is a major federal action, NEPA required the Corps to prepare an environmental analysis. The Corps prepared an EA, submitted it for public comment, and determined that the project would not have a significant impact on the environment.

The court determined that the applicable standard of review for the denial of a preliminary injunction is whether the district court abused its discretion. The court maintained that the test for preliminary injunctive relief is a "continuum," (25) rather than two separate alternatives. A party is entitled to relief if the party demonstrates: 1) a probability of success on the merits and the potential for irreparable harm if the injunction is denied, or that 2) "serious questions are raised and the balance of hardships tips sharply in [the movant's] favor." (26) The court determined that the County was not entitled to a preliminary injunction because they did not demonstrate a probability of success on the merits.

The County first argued that an environmental impact statement (EIS) was required for the project under NEPA because the project would have significant impacts on the environment. Based on the arbitrary and capricious standard of review for agency decisions, the court determined that the Corps took "the necessary hard look at the environmental impact of the proposed expansion." (27) The court pointed out that the Council on Environmental Quality (CEQ) regulations require the preparation of an EA that "[b]riefly provide[s] sufficient evidence and analysis" for whether to prepare an EIS. (28) The court specifically noted that it would not "interject itself" in the area of executive discretion when considering the agency's actions. (29)

The County next argued that even if an EIS was not required, the EA was inadequate because it failed to adequately describe mitigation measures relating to sediment, erosion control, and dam safety, and it did not include a reasonable range of alternatives. The court dismissed both of these arguments, first reasoning that the Corps was not required to develop a complete and precise mitigation plan. The court determined that the description of mitigation measures in the section 404 permit--which required the permittee to comply with dam safety--was adequate.

The court further concluded that CEQ regulations only required the Corps to include a "brief" discussion of "practicable alternatives" in the EA. (30) Under the "rule of reason" (31) standard of review for an agency's range of alternatives, the court determined that the five alternatives provided by the Corps, including a no action alternative, were sufficient. In short, the court concluded that the County could not demonstrate a likelihood of success on the merits; therefore, the County was not entitled to a preliminary injunction because the Corps took the necessary hard look at the environmental impacts of the proposed expansion as required by NEPA.

2. Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), cert. denied, 123 S. Ct. 2573 (2003).

Betty and Guido Pronsolino, the Mendocino County Farm Bureau, the California Farm Bureau Federation, and the American Farm Bureau Federation (collectively the Pronsolinos) challenged the authority of the Environmental Protection Agency (EPA) under the Clean Water Act (CWA) (32) to set a Total Maximum Daily Load (TMDL) (33) for the Garcia River, polluted only by nonpoint source pollution. The Pronsolinos were private owners of forest land in Northern California who applied for harvest permits from the California Department of Forestry and the Regional Water Quality Control Board and were required by the state to comply with certain conditions to meet the requirements of the Garcia River TMDL. The district court ruled in favor of EPA and the Pronsolinos appealed. The Ninth Circuit affirmed the district court's ruling, finding that EPA's interpretation of the statute was reasonable and entitled to judicial deference.

The issue in this case was whether EPA properly interpreted section 303(d) of the CWA to allow EPA to require states to set TMDLs for rivers polluted only by nonpoint source pollution. Section 303(d) requires that states list and prepare TMDLs for "those waters within [the state's] boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters." (34) The Pronsolinos argued that to trigger the need for a TMDL, the statute required that a water body be both subject to effluent limitations and noncompliant with water quality standards. Because effluent limitations apply only to point source discharges, the Pronsolinos reasoned that waters impaired only by nonpoint source pollution were excluded from the TMDL requirement. However, EPA interpreted the "not stringent enough" language of section 303(d) to mean that a water body must be listed if the use of effluent limitations would not implement applicable water quality standards.

The Ninth Circuit first determined that EPA's interpretation of the Clean Water Act embodied in its regulations was entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron), (35) because "Congress delegated authority to the agency generally to make rules carrying the force of law, and [EPA's regulations were] promulgated in the exercise of that authority." (36) Under Chevron deference, the court must defer to the agency's interpretation of an ambiguous provision "as long as it is reasonably consistent with the statute." (37) Alternatively, the court determined that EPA's interpretation was entitled to deference under the less rigorous Skidmore v. Swift & Co. (38) standard, based on the persuasiveness of EPA's position in light of the agency's "expertise, care, consistency, and formality, as well as the logic of the agency's position." (39)

Before reaching its statutory analysis, the Ninth Circuit responded to the Pronsolinos' initial argument that EPA's regulations did not expressly interpret section 303(d) to require TMDLs for rivers polluted solely by nonpoint source pollution. The court determined that EPA'S regulations provided for TMDLs for such rivers based on several sections of the agency's regulations. First, the court pointed to the agency's definition of a TMDL as the "sum of the individual WLAs [wasteload allocations] for point sources and LAs [load allocations] for nonpoint sources and natural background." (40) The court reasoned that because the waste load allocation for point sources could conceivably be zero, the regulations allowed that a TMDL could apply where there is only a load allocation for nonpoint source pollution. The court also reasoned that section 130.7 of EPA's regulations did not distinguish between sources of pollution for purposes of TMDLs because this section required states to identify rivers that required TMDLs if "[o]ther pollution control requirements (e.g., best management practices) ... are not stringent enough," (41) where best management practices pertained to nonpoint source pollution. (42) The court further noted that under section 130.3 of EPA's regulations, a purpose of water quality standards is to provide "federally-approved goals to be achieved both by state controls and by federal strategies other than point source technology-based limitations." (43) Thus, a distinction between point and nonpoint source pollution was not relevant in the TMDL context.

The Pronsolinos next argued that EPA's position was not entitled to deference because the agency did not consistently interpret the CWA to allow TMDLs for waters polluted only by nonpoint sources. The court rejected this argument, determining that since 1973 EPA had consistently interpreted the CWA to require the identification of waters not meeting water quality standards "'even after the application of the effluent limitations.'" (44) The court further determined that any past failures of EPA to actively require TMDLs for waters polluted only by nonpoint sources only reflected a general failure to enforce the section 303(d) requirements regardless of the source of pollution.

The court then reached its analysis of section 303(d) of the CWA, considering the parties' competing interpretations of the language "not stringent enough to implement any water quality standard." (45) The court viewed the major difference between the arguments as whether one interpreted "not stringent enough" to mean not strict enough (as the Pronsolinos argued) or not adequate enough (as EPA argued). The court reasoned that a logical reading of section 303(d) looked forward towards the section's goal of achieving water quality standards, which obviated the need for any distinction between sources of water pollution.

The court found that the statutory context of section 303(d) supported EPA's interpretation because it began with the broad requirement that states identify all waters within their boundaries. The second step was to identify those waters for which technology would not achieve any applicable water quality standards. The court reasoned that the Pronsolinos' interpretation would awkwardly require that states first establish a list of waters with point source discharges subject to effluent limitations, and only then look at whether effluent limitations were not adequate. The court reasoned that EPA's interpretation gave meaning to Congress's intent that EPA first focus on implementing effluent limitations and later look to managing water quality standards. The court notably relied on its decision in Dioxin/Organochlorine Center v. Clarke. (46) There the court held that EPA acted within its statutory authority in setting TMDLs for toxic pollutants not subject to effluent limitations under sections 301(b)(1)(A) or 301(b)(1)(B) because "since best practical technology effluent limitations do not apply to toxic pollutants, those limitations are, as a matter of law, 'not stringent enough' to achieve water quality standards." (47) This reasoning justified a similar outcome for waters polluted by nonpoint sources to which effluent limitations did not apply.

The court then looked to the purpose and structure of the statute to dismiss the Pronsolinos' argument that the CWA as a whole distinguished between point and nonpoint sources. The court reasoned that there was no such distinction with regard to the basic purpose of section 303(d), the attainment of water quality standards, nor to the placement of section 303(d) in the Water Quality and Implementation Plans section of the statute. (48) Furthermore, the court found that because the CWA is "replete with multiple listing and planning requirements," (49) the existence of sections 208 (50) and 319, (51) dealing exclusively with nonpoint sources, did not preclude treatment of nonpoint sources in section 303(d). Finally, the court determined that since section 303(d) clearly required that mixed waters be listed (those polluted by both point and nonpoint sources), it would be unreasonable to read the statute to not allow a river to be listed where there was only nonpoint source pollution.

The final argument raised by the Pronsolinos was that EPA's interpretation of section 303(d) intruded into areas of traditional state control because establishing TMDLs for nonpoint sources would allow EPA authority over land-use decisions. The Pronsolinos relied on Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (52) to support their argument that EPA's interpretation was invalid because it "upset the balance of federal-state control established in the CWA." (53) The court found these federalism concerns irrelevant because the implementation of TMDLs remained within the states' exclusive authority. The TMDLs, the court concluded, were merely "informational" tools. (54) In short, the Ninth Circuit deferred to EPA's interpretation of section 303(d) of the CWA because it concluded that the agency's interpretation of the statute was reasonable.

3. San Francisco BayKeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002).

Appealing the district court's dismissal of its claim, San Francisco BayKeeper (BayKeeper), an environmental group, argued to the Ninth Circuit that the State of California had failed both to determine total maximum daily loads (TMDLs), and to implement a TMDL program in a timely manner, as required by the Clean Water Act (CWA). (55) BayKeeper also argued that because of the State's failures concerning the establishment of TMDLs, the Environmental Protection Agency (EPA) had a "nondiscretionary duty to establish water pollution standards for California." (56) Further, BayKeeper argued that the district court improperly consulted a document submitted by EPA, EPA's Program Review document, in its review of the record. In rejecting all of BayKeeper's arguments and affirming the district court's grant of summary judgment in favor of EPA, the Ninth Circuit found that EPA did not have a nondiscretionary duty to act and the district court's reliance on EPA's Program Review document was proper.

Initially, the court addressed California's submissions to EPA as required by section 303(d) of the CWA. (57) BayKeeper contended that California had neglected the 1979 deadline in the CWA (58) for TMDL submission because California "did not submit any TMDLs until 1994 ... 15 years after the initial deadline for making a submission pursuant to section 303(d) of the Act." (59) The Ninth Circuit pointed out, however, that California had a TMDL program in place with an annual budget of $7 million. In addition, the court indicated that California had "completed more than 46 TMDLs for waters on California's lists ... [and] established a schedule for completing all TMDLs for waters on its 1998 section 303(d) lists within the next 12 years." (60)

BayKeeper first argued that EPA had a duty to establish TMDLs for California because California had failed to establish the required TMDLs. Section 303(d) of the CWA requires the EPA Administrator to approve or disapprove of a state's TMDL proposal within thirty days of submission. (61) The Act also requires the Administrator to establish TMDLs for the state if the Administrator disapproves of a state's TMDL proposal. (62) BayKeeper relied on the constructive submission doctrine as support for their contention that EPA had a duty to act. Under the constructive submission doctrine, if a state fails to submit TMDLs, EPA will construe such a failure as intent to submit no TMDLs. (63) Thus, EPA's duty under section 303(d) will be triggered, and EPA will have to either approve or disapprove of the state's submission of no TMDLs. If EPA disapproves the submission, it must establish TMDLs. BayKeeper contended that because California's 303(d) submissions between 1980 and 1994 contained only a listing of water quality limited segments (WQLSs) and did not contain TMDLs, California intended not to submit TMDLs. Therefore, according to BayKeeper, the court should have applied the doctrine of constructive submission, and required EPA to establish the state's TMDLs.

The Ninth Circuit affirmed the district court's refusal to apply the doctrine of constructive submission. The district court did not apply the doctrine because California had submitted TMDLs. Although the Ninth Circuit recognized the constructive submission doctrine, the court agreed with the district court and found that the theory did not apply in this case. The Ninth Circuit agreed with the Tenth Circuit's decision in Hayes v. Whitman, (64) in which that court stated that the constructive submission theory "applies only when the state's actions clearly and unambiguously express a decision" not to submit TMDLs. (65) Thus, because California's actions included development of TMDLs and maintenance of a schedule for TMDL compliance its actions "preclude[d] any finding that the state ha[d] 'clearly and unambiguously' decided not to submit any TMDLs." (86)

BayKeeper also contended that California's 303(d) submissions that listed WQLSs but not TMDLs "were incomplete and should have been disapproved by EPA." (67) The court explained that the CWA does not require a state to make submissions of WQLSs and TMDLs at the same time. The court referred to the EPA regulations, (68) which require a state to submit WQLSs every two years, and noted that EPA had not defined a schedule for TMDL submissions. The court followed the framework developed in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (69) in deferring to EPA's interpretation that the CWA does not require simultaneous TMDL and WQLS submissions. The court found EPA's interpretation reasonable because to require "simultaneous submission of the list of polluted waters with the TMDL to correct each polluted water would render meaningless the provision that the TMDLs are to be established 'in accordance with priority ranking' of the listed polluted waters." (70) Therefore, neither the constructive submission doctrine nor the absence of TMDLs in California's 303(d) submissions triggered EPA's duty under the CWA to establish California's TMDLs.

BayKeeper also argued under the Administrative Procedure Act (APA), (71) EPA could not "unreasonably delay[]" action, (72) BayKeeper argued that EPA was unreasonably late in establishing TMDLs. The Ninth Circuit held that because EPA did not have a statutory duty to act there was no unreasonable delay.

Finally, the Ninth Circuit held that when a court considers a claim that an agency failed to act there is "no final agency action that closes the administrative record." (73) Therefore, it was not an abuse of discretion for the district court to consider the EPA Program Review document, described by BayKeeper as a "'post-hoc staff memorandum' that attempt[ed] to 'inflate the scope of the State's past and ongoing TMDL efforts.'" (74) Thus, the court concluded that the district court's review of the EPA Program Review document was proper.

4. Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002).

The Association to Protect Hammersley, Eld, and Totten Inlets (APHETI), a nonprofit organization consisting of residents of the southern shore of Puget Sound, sued Taylor Resources, Inc. (Taylor), an aquaculture operation specializing in mussels, under the citizen suit provision of the Clean Water Act (CWA). (75) The district court granted Taylor's motion for summary judgment, dismissing APHETI's allegation that Taylor had discharged pollutants from its mussel rafts without obtaining a National Pollutant Discharge Elimination System (NPDES) permit. The Ninth Circuit held that although APHETI had the right to bring a citizen suit on behalf of its members, 1) the Washington Department of Ecology (DOE) was not a necessary party even though it had refused to issue Taylor a NPDES permit, 2) the materials released from Taylor's rafts were not pollutants, and 3) the rafts were not point sources under the CWA. (76) Therefore, the Ninth Circuit affirmed the district court's decision.

Taylor produces mussels by attaching mussel larvae to suspension ropes that are anchored to the sea floor in Puget Sound. Taylor does not add any additional food; the mussels take nutrients out of the seawater. The byproducts of the mussels include "feces and pseudo-feces[,] ... dissolved materials in the form of ammonium and inorganic phosphate," and mussel shells. (77) Taylor attempted to acquire a NPDES permit from the Washington DOE, but the state agency determined that Taylor was not required to have a permit because it did not add food to the water. APHETI brought a CWA citizen suit against Taylor claiming that the mussel operation violated the CWA by "'discharg[ing] ... [a] pollutant' from a 'point source' into navigable waters of the United States" without a permit. (78) APHETI sought civil penalties and an injunction to stop the discharge from Taylor's rafts.

The Ninth Circuit first examined Taylor's claim that APHETI could not bring a citizen suit because the DOE would not accept Taylor's application. The court held that the CWA expressly gives citizens the right of enforcement, and nothing in the statutory language or legislative history gives the Environmental Protection Agency (EPA) or the designated state agency the exclusive power to determine what violates the CWA. The court also determined that the DOE was not a necessary party because the purpose of a citizen suit is to enforce the CWA when agencies do not act. Examining Rule 19(a) of the Federal Rules of Civil Procedure, (79) the court concluded that, in the absence of the DOE, complete relief could still be afforded to the parties and that the DOE did not claim an interest in the action.

Next, the Ninth Circuit determined that the mussel shells and other byproducts produced were not "pollutant[s]" under the CWA (80) because they are the natural biological processes of an animal that naturally reproduces in Puget Sound and not "waste product[s] of a transforming human process." (81) To reach this conclusion the court first decided that the term "biological materials," which is included in the statutory definition of "pollutant," (82) is ambiguous. The term could broadly include the mussel byproducts or, under the doctrine of ejusdem generis, could narrowly mean waste that comes from a "human or industrial process." (83) Finding the statute ambiguous, the Ninth Circuit looked at legislative intent, as evidenced by statutory language listing the propagation of shellfish as a goal of the CWA. (84) To the court, this signified that Congress was trying to protect shellfish and that it would be contradictory for the court to find shellfish to be pollutants under the same law. In addition, the court stressed that the record did not show any identifiable harm to the environment caused by the mussel byproducts, and that, in fact, the mussels might improve water quality as filter-feeders. Therefore, the Ninth Circuit concluded that the byproducts of mussels were simply the natural biological processes of an animal already present in the Puget Sound and not a pollutant under the CWA.

Finally, the Ninth Circuit held that Taylor's mussel facility was not a "point source" (85) because the facilities fell into a regulatory exception as Taylor did not add any food to the water. The court started with an EPA regulation that designates "[c]oncentrated aquatic animal production facilities" (CAAPFs) as point sources. (86) Although Taylor's facility fit into the broad definition, the regulation excludes facilities that feed their animals less than a certain amount per month, and the court found that Taylor's operation fell within this exception. The court then declined to examine whether Taylor's operation was a point source under the general statutory definition because that analysis "would render the EPA's CAAPF criteria superfluous and undermine the agency's interpretation of the Clean Water Act." (87) Therefore the court deferred to the agency's regulation and affirmed the district court's decision.

5. Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002).

At issue in this case were alleged Clean Water Act (CWA) (88) violations by the defendants, two dairy farms and their owner, Henry Bosma (collectively Bosma). The district court found that the notice letter the plaintiff, Community Association for Restoration of the Environment (CARE), sent to the defendants was adequate to provide notice of its claims against the defendants even though plaintiff sued on violations not mentioned in the notice letter but included in the complaint. In addition, the district court found that CARE had sufficiently proven that the defendants had continually violated the CWA (89) and that a sufficient likelihood existed that the defendants' violations would recur. The Ninth Circuit reviewed de novo whether the district court's findings concerning the notice letter were adequate, and reviewed the district court's factual findings concerning the allegation of an ongoing violation for clear error. In affirming the district court's findings, the Ninth Circuit held that CARE's notice letter was adequate and that "the record support[ed] the district court's conclusions [regarding the finding of ongoing violations]." (90)

The defendant, Henry Bosma, owned and operated the Bosma and Liberty Dairies. Both dairies were classified as concentrated animal feeding operations (CAFOs). (91) The Bosma dairies had a history of compliance problems. In 1973, Bosma discharged manure to joint drain (JD) 26.6, a drainage ditch that ran along the length of the dairies and ultimately discharged into the Yakima River. In addition, in 1976 the Washington State Department of Ecology (DOE) informed Bosma that a National Pollutant Discharge Elimination System (NPDES) permit was necessary for the dairies. Bosma refused to obtain such a permit despite DOE orders in 1978, 1986, and 1996 to do so. Furthermore, numerous complaints and witnesses confirmed discharges of manure waste to JD 26.6 from the Bosma dairies. In 1997, DOE issued a General Dairy NPDES permit for Bosma Dairy. This permit was modified in 1998 to include the Liberty Dairy.

The two issues in this case were whether CARE's citizen suit notice letter was sufficient to notify the defendants of the claims against them and whether CARE sufficiently proved that continued violations were occurring or would occur concerning the dairy discharges. In 1997, CARE sent its 60-day notice of intent to sue under the citizen suit provision of the CWA. (92) This notice letter mentioned twelve discharge violations. In early 1998, CARE filed its complaint, which included the twelve discharge violations set forth in the notice letter and an additional thirty-two violations included in an appendix to the complaint. CARE's complaint alleged that Bosma operated the Bosma and Liberty Dairies and discharged pollutants without a NPDES permit. In addition, CARE contended that Bosma's discharge of pollutants was in violation of the General Dairy NPDES permit that Bosma did have. Finally, CARE contended that the discharges from the dairies violated Washington water quality standards.

The district court ruled for CARE, finding that the notice letter was sufficient to provide Bosma notice of the potential claims against them including the twelve violations mentioned in the letter and the violations included in the appendix to CARE's complaint. In addition, the court found that it had jurisdiction over the claims in the appendix because the claims were sufficiently similar to the claims in the notice letter. Furthermore, the district court found that the dairies were CAFOs. The court also ordered Bosma to pay a portion of CARE's attorney fees.

Regarding the citizen suit notice requirements of the CWA, (93) the Ninth Circuit considered both the statutory requirements of the CWA (94) and case law in determining that CARE's notice letter was adequate to inform the dairies of the claims against them, including those in the appendix of the complaint. First, the court explained that the CWA requires that "'[n]otice ... shall be given in such a manner as the Administrator shall prescribe by regulation.'" (95) EPA's regulations require that notice

   include sufficient information to permit the recipient to identify
   the specific standard, limitation, or order alleged to have been
   violated, the activity alleged to constitute a violation, the
   person or persons responsible for the alleged violation, the
   location of the alleged violation, the date or dates of such
   violation, and the full name, address, and telephone number of the
   person giving notice. (96)

In its consideration of prior case law, the Ninth Circuit compared this case to the situation in Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc. (97) In Hercules, the Third Circuit explained that "the citizen is not required to list [in the notice letter] every specific aspect or detail of every alleged violation." (98) The Ninth Circuit explained that, similar to the complaint in Hercules that included violations that were not in the notice, the complaint here contained violations not listed in the notice. The court concluded that CARE's notice was sufficient because it complied with EPA's regulations and the violations included in the appendix were similar to those in the notice. The Ninth Circuit reasoned that the violations were sufficiently similar because they discharged the same pollutants, took place within the same timeframe, and occurred at the same dairies.

Concerning the district court's finding that there was an ongoing violation of the CWA, the Ninth Circuit explained that in order "[t]o prevail at trial, a citizen-plaintiff must prove an ongoing violation." (99) In addition, the court added that an ongoing violation can be shown by "'proving violations that continue on or after the date the complaint is filed or ... by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.'" (100) The district found ongoing violations with respect to discharges from Bosma's truck wash, Bosma's application of wastewater, and Bosma's discharges to JD 26.6. The Ninth Circuit affirmed the district court's findings because it found that the district court's conclusions were "supported by evidence." (101)

Regarding the other issues raised on appeal, the Ninth Circuit found that "the district court did not err in finding that JD 26.6" (102) was a navigable water. The court relied on Headwaters, Inc. v. Talent Irrigation District, (103) which held that "irrigation canals are waters of the United States because they are tributaries to other waters of the United States." (104) The court explained that because JD 26.6 drains into the Yakima River it was a water of the United States and therefore a navigable water under CWA jurisdiction. In addition, the Ninth Circuit explained that Bosma's dairies were CAFOs and were therefore classified as point sources under the CWA. (105) The court explained that the CWA prohibits discharge of pollutants from a point source without a NPDES permit or in violation of a permit. (106) The Ninth Circuit rejected Bosma's argument that the entire dairy was not a point source because the fields and ditches where the manure was stored were not part of the CAFO. Furthermore, the Ninth Circuit found that CARE had "standing to enforce violations of the [Dairy Waste Management Plan] and NPDES permits" (107) because citizens have the ability to enforce EPA effluent limitations and state water quality standards. (108) Therefore, CARE could sue to enforce all of the conditions of the NPDES permits.

Although Bosma argued that the attorney fees award should be reduced because violations were unrelated, the Ninth Circuit found that the district court did not err "in failing to impose penalties for violations ... [CARE failed to prove] and in reducing its award of attorney[] fees." (109) The Ninth Circuit explained that the district court's finding that CARE was not entitled to a full award of attorney fees because CARE did not prevail on all of its claims was not in error. Thus, the Ninth Circuit affirmed the district court.

6. San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153 (9th Cir. 2002), cert. dismissed, 123 S. Ct. 2296 (2003).

San Francisco BayKeeper (BayKeeper) filed a citizen suit against Tosco Corporation and Diablo Services Corporation (collectively Tosco) claiming that Tosco violated the Clean Water Act (CWA) (110) by illegally discharging petroleum coke into New York Slough, which flows into the San Francisco Bay. BayKeeper claimed that Tosco spilled coke during ship-loading and stored coke on its premises in such a manner as to allow it to be carried into New York Slough by wind and rain. The district court first limited the suit to violations about which BayKeeper had given Tosco specific notice, including the date of violations. The court then granted summary judgment in favor of Tosco, ruling that BayKeeper's claim against Tosco was moot because Tosco sold the facility to another corporation. The Ninth Circuit reversed, ruling that 1) BayKeeper provided sufficient information to Tosco in a notice letter to allow Tosco to determine the dates of violations, and 2) BayKeeper's claim was not moot because civil penalties would serve to deter future violations at the facility.

The CWA authorizes citizens to seek injunctive relief, civil penalties, and attorney fees against individuals found to be in violation of the statute's requirements. (111) To bring a citizen suit, a claimant must provide the alleged violator sixty-days notice of the intent to sue. (112) Environmental Protection Agency (EPA) regulations require that citizens provide "sufficient information" to allow the recipient to identify the activity and standard violated, the responsible individuals, the location and date of the violation, and the identity of the person giving notice. (113) Failure to provide sufficient notice to the alleged violator warrants dismissal of the suit for lack of subject matter jurisdiction. (114) The Ninth Circuit noted that while failure to provide the identity and contact information of the plaintiffs may be fatal, (115) EPA regulations only require that plaintiffs provide "sufficient information" to allow the defendant to identify the violations and to comply with the law, (116) requiring at most "reasonable specificity." (117)

At issue in the case was whether BayKeeper provided "sufficient information" (118) to allow Tosco to determine the dates of the alleged violations. BayKeeper made two separate claims against Tosco. First, it argued the corporation spilled coke during ship loading. Second, it argued that the corporation allowed coke in uncovered pries to be deposited into the slough by wind and rain. Because BayKeeper listed fourteen dates between 1998 and 1999 when ships had been docked at a Tosco facility, the Ninth Circuit ruled that BayKeeper provided sufficient information for Tosco to determine the dates that coke spilled during ship loading. The court reasoned that Tosco was in a better position than BayKeeper to determine when its own ship loading actually occurred. Further, the court ruled that in addition to alleged violations on the dates listed in the notice letter, BayKeeper could pursue claims for violations on other dates in the same period, in reliance on the court's decision in Community Association for Restoration of the Environment v. Henry Bosma Dairy. (119) In Henry Bosma Dairy, the court ruled that a plaintiff could add additional dates of violations in a complaint if they were "from the same source, were of the same nature, and were easily identifiable" as the violations listed in the notice letter. (120)

The Ninth Circuit ruled that BayKeeper provided sufficient information in its notice letter concerning discharges as a result of improperly covered piles of coke even though BayKeeper only provided a general range of dates of violations. The court reasoned that by identifying the dates as the time when coke piles remained uncovered, BayKeeper provided sufficient information for Tosco to determine when the violations actually took place. The court noted that BayKeeper's notice was sufficient to allow Tosco to correct the problem and to inform Tosco about "what it [was] doing wrong." (121) Finally, the court held that BayKeeper was not obligated to identify specific dates for alleged ongoing violations, thereby eliminating the date requirement for BayKeeper's claim that Tosco did not implement the best available technology to prevent stormwater pollution.

The Ninth Circuit then reached Tosco's argument that BayKeeper's claim was moot because Tosco sold the facility to Ultramar Corporation. To establish mootness, the Ninth Circuit noted that the defendant bears a "heavy burden of persuasion" to show that the court can no longer provide relief to the plaintiff. (122) The court relied on Supreme Court guidance in Friends of the Earth, Inc. v. Laidlaw, (123) in which the court ruled that in CWA cases, civil penalties serve to "deter future violations and thereby redress the injuries that prompted a citizen suitor." (124) According to the Supreme Court, only when it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur" will a claim for civil penalties be mooted. (125) The Ninth Circuit pointed out that even in Laidlaw, where the facility at issue was permanently closed and dismantled, the Supreme Court remanded the case for further factual findings to determine whether it was "absolutely clear" that violations would not recur. (126) Based on the decision in Laidlaw, the Ninth Circuit reasoned that because the Tosco facilities were still in operation, civil penalties against Tosco would deter potential future violations by the new owner and operator. The court opined that it would "undermine the enforcement mechanisms established by the Clean Water Act" to allow potential violators to avoid liability by selling the facility to a new corporation. (127) The court rejected Tosco's contention that because Ultramar already settled with BayKeeper for its own violations at the facility, deterrence of the new owner was irrelevant.

7. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002).

League of Wilderness Defenders and other environmental groups (LWD) challenged a United States Forest Service (USFS) aerial pesticide spraying program, alleging that USFS failed to obtain a National Pollution Discharge Elimination System (NPDES) permit and prepared an inadequate Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA). (128) The district court granted summary judgment for USFS, and LWD appealed. Upon review the Ninth Circuit reversed and remanded to the district court to enjoin USFS from aerial pesticides spraying until it obtained a NPDES permit and conducted an adequate EIS.

In the 1970s an outbreak of the Douglas fir tussock moth (Orgyia pseudotsugata) ravaged hundreds of thousands of acres throughout Oregon, Washington, and Idaho. Fearing that another outbreak would cause further damage to forests, USFS created a warning system to predict outbreaks and a pesticide spraying program to limit resulting damage. Such an outbreak was predicted for 2000-2002, and USFS began aerial pesticide spraying.

LWD first challenged USFS's spraying program for failure to obtain a NPDES permit. Under the Clean Water Act (CWA), (129) an agency must get a permit before discharging any pollutant into navigable waters from any point source. (130) A point source is defined as "any discernable, confined and discrete conveyance, including but not limited to any ... floating craft from which pollutants are or may be discharged." (131) USFS, stipulating that the insecticide qualifies as a pollutant, argued that aerial forest spraying to control pests is not a point source as defined by federal regulation. (132) USFS claimed that under 40 C.F.R. section 122.27, aerial spraying did not qualify as a point source because "[s]ilvicultural point source ... does not include non-point source silvicultural activities such as ... pest and fire control...." (133) The Ninth Circuit rejected this argument, holding that an airplane spraying pesticide is clearly a point source under the CWA definition. The court stated that when the intent of Congress is clear in an act, an agency cannot circumvent that intent through interpretation of administrative regulations. (134) Further, the court found that the language of the administrative regulation indicated that nonpoint sources were those "from which there is natural runoff," (135) and the regulation was not intended to apply to pest control spraying that directly discharges pollutants over waterways. USFS also argued that the listing of four particular point sources in the regulation excluded any other activity from being defined as a point source. However, the Ninth Circuit found that a contextual reading of the statute indicated those activities were listed to clarify that they remained subject to NPDES requirements, not to exclude other activities from being defined as a point source. The Ninth Circuit also found uncompelling two Environmental Protection Agency (EPA) letters and a guidance document offered by USFS as evidence supporting its interpretation of the regulation because the clarity of legislative intent in the CWA closed the door on USFS or EPA authority to interpret the regulation differently. The Ninth Circuit reversed the district court, requiring USFS to obtain a NPDES permit before undertaking any further aerial spraying.

On appeal, LWD also challenged USFS's spraying program for failure to prepare an adequate EIS. Under NEPA, an EIS must be prepared for any major federal action that significantly affects the environment. (136) Although USFS did prepare an EIS, LWD argued it was insufficient because it did not adequately consider the drift of pesticides outside the spraying area. In response, USFS reasoned that because the EIS accounted for drift with mitigation measures--such as a one-mile buffer between the target area and wilderness areas and wind speed requirements for spraying--it was sufficient. The Ninth Circuit held that the mitigation measures did not substitute for a consideration of the impact of inevitable drift of pesticides into areas not designated wilderness or for a showing of the distance the pesticide could drift. Thus, the Ninth Circuit remanded the issue to the district court with instructions to enjoin the program until USFS obtains a NPDES permit and completes a new EIS.

8. California Trout, Inc. v. Federal Energy Regulatory Commission, 313 F.3d 1131 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3759 (U.S. May 27, 2003) (No. 02-1735), infra Part II.E.

9. United States v. Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002), infra Part III.

10. Environmental Defense Center, Inc. v. United States Environmental Protection Agency, 319 F.3d 398 (9th Cir. 2003).

In three consolidated cases, petitioners Texas Cities Coalition on Stormwater and the Texas Counties Stormwater Coalition (Municipal Petitioners), petitioners Environmental Defense Center and petitioner-intervenor Natural Resources Defense Council (Environmental Petitioners), and petitioners American Forest & Paper Association and the National Association of Home Builders (Industrial Petitioners) brought a facial challenge to the validity of the Phase II Rule of the United States Environmental Protection Agency (EPA) (137) on constitutional, statutory, and procedural grounds.

The Phase II Rule mandates that discharges from small municipal separate storm sewer systems (small MS4s) and construction sites between one and five acres are subject to the permitting requirements of the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act (CWA). (138) Stormwater runoff is subject to regulation under section 402(p) of the CWA, which requires NPDES permits for industrial stormwater discharges and discharges from some municipal storm sewer systems. (139) Section 402(p)(1) prohibits permitting stormwater discharges not listed until EPA completes studies on them as mandated by section 405(p)(5). (140) However, section 402(p)(6) directs EPA to develop a "comprehensive program to regulate such designated sources" and to "protect water quality." (141) EPA promulgated the Phase II Rule pursuant to this congressional mandate.

In an opinion written by Judge Browning, the Ninth Circuit upheld all parts of the Phase II Rule against the parties' constitutional, statutory, and procedural challenges, except for EPA's failure to require review of notices of intent in the General Permit option and failure to provide for public participation in the NPDES permitting process.

The Municipal Petitioners primarily argued that EPA lacked statutory and constitutional authority to regulate small MS4s as proposed in the Phase II Rule. Statutorily, they argued that EPA was not authorized by section 402(p) of the CWA to develop a NPDES permit program for small MS4s because the provision's mandate to "establish a comprehensive program" (142) specifically excluded permits from its list of regulatory methods. Judge Browning refuted this argument, finding the statutory language nonexclusive, and explaining that section 402(p)(1)'s prohibition on permitting until EPA studies were completed would have been superfluous under the Municipal Petitioners' interpretation. The court concluded that under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., (143) EPA's reasonable interpretation of section 402(p) to include a NPDES permit program was reasonable.

Alternatively, Municipal Petitioners asserted that the Phase II Rule violated the Tenth Amendment (144) because it impermissibly forced municipalities to regulate third parties. Municipal Petitioners protested provisions of the Phase II Rule, "Minimum Measures," that directed MS4s to 1) prohibit non-stormwater discharge to the MS4 and implement enforcement action, (145) 2) implement and enforce a program to reduce pollutants from small construction sites, (146) and 3) enact regulations to control erosion and sedimentation, (147) arguing that the Tenth Amendment prohibits federal law from requiring local entities to enact ordinances or regulatory measures. Under New York v. United States, (148) and subsequent cases, the Tenth Amendment implicitly prohibits the federal government from compelling state and local governments to enact a federal regulatory program (149) or from "'excessively interfer[ing] with the functioning of state governments.'" (150) However, Judge Browning acknowledged permissible cases in which federal laws merely required states to choose between administering the federal program and allowing the federal government to regulate third parties directly. (151)

Judge Browning concluded that the Phase II Rule did not violate the Tenth Amendment, reasoning that the Rule's measures constituted "reasonable steps" to minimize pollution of federal waters. (152) He further explained that because MS4s had the option of not discharging at all, the federal government was constitutionally authorized to require state regulatory action in "exchange" for letting states discharge into the waters of the United States. (153) Similarly, the court considered the "Alternative Permit" option provided by the Phase II Rule--which authorized MS4s to discharge based on the Phase I Rule--to be a constitutionally permissible alternative because the Phase I Rule did not require that MS4s regulate third parties. Judge Browning reiterated that the management programs required by the Phase I Rule, much like the Phase II Rule, were generally applicable and legitimately justified when MS4s discharge into federal waters. Judge Browning further upheld EPA's statutory authority to enact the Minimum Measures as a reasonable interpretation of the CWA under Chevron.

Municipal Petitioners further maintained that the Phase II Rule violated the First Amendment because the public education requirement and Minimum Measures impermissibly compelled municipalities to communicate federally-mandated messages. The court dismissed this argument, reasoning that the rule's broad mandate that MS4s educate the public about the hazards of improper waste disposal did not compel specific speech and was nonideological. Specifically, the court noted that based on the test set out in Glickman v. Wileman Brothers & Elliot, Inc., (154) the Phase II regulations did not restrain the freedom of MS4s to communicate any message to the public. While the regulations did force MS4s to engage in some speech, they did not dictate what that speech actually was, and did not force MS4s to endorse any particular political views. (155)

The Municipal Petitioners contended that EPA violated the Administrative Procedure Act (APA) (156) in promulgating the Phase II Rule because the Alternative Permit option did not undergo notice and comment required for informal rulemaking. (157) However, Judge Browning determined that the final Phase II Rule was a "logical outgrowth" of the proposed rule, and should be upheld because the premise of the Alternative Permit option was evident in the proposed rule, merely in a different form. (158)

The Ninth Circuit upheld the Environmental Petitioners' challenge to the Phase II Rule because the General Permit option failed to satisfy the CWA's mandate that permits call for controls to reduce pollutants "'to the maximum extent practicable,'" (159) and failed to expressly require public participation in the NPDES permitting process. Under the Phase II Rule, each notice of intent (NOI) to comply with a general permit contains specific pollution control information, and the NOI constitutes compliance with the requirement that MS4s reduce pollutants to the "maximum extent practicable." (160)

Environmental Petitioners claimed that the regulation violated the CWA because it failed to require that the permitting authority review the NOI to ensure that the facility is in fact reducing pollutants to the maximum extent practicable. MS4s could therefore impermissibly self-regulate. The court concluded that unreviewed NOIs were impermissible because the clear mandate of the CWA required meaningful review to ensure that each MS4 actually reduces pollutants to the maximum extent practicable. The court further ruled that the CWA clearly required that NOIs be subject to public review and hearings because, under the Phase II rule, NOIs contain substantive requirements and are the functional equivalent of permit applications. Thus, the court remanded the rule for further development in these areas.

The court rejected the Environmental Petitioners' challenge to the Phase II rule's failure to regulate "Group A" industrial sources and forest roads. With respect to Group A sources, Environmental Petitioners argued that EPA's exclusion of approximately 100,000 facilities was arbitrary because the agency did not provide individualized analyses of specific source categories within Group A, when EPA could have used information from Phase I permit applications to do so. EPA claimed that it did not have enough data regarding these sources to designate them for group and Phase II regulation. Judge Browning concluded that EPA's decision was not arbitrary because under Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., (161) EPA did not rely on factors Congress did not intend the agency to consider, fail to consider an important aspect of the problem, or put forth an implausible rationale. (126)

Similarly, Environmental Petitioners alleged that EPA's decision not to regulate forest roads was arbitrary because the agency was aware, and had concluded, that erosion from forest roads was a primary cause of water pollution. Judge Browning declined to find the regulation arbitrary, however, because Congress intended the Phase II Rule to regulate stormwater pollution from industrial and municipal sources, not from agriculture or silviculture. The court upheld this distinction by deferring to EPA's interpretation of the CWA.

Judge Browning dismissed the American Forestry and Paper Association's (AFPA) claim for standing, ruling that the association was not imminently or actually threatened by any potential result in the case, as required by the Supreme Court's decisions in Lujan v. Defenders of Wildlife (163) and Friends of the Earth, Inc. v. Laidlaw Environmental Services. (164) The court ruled that AFPA did not have a legally cognizable injury based on the possibility that it might become subject to regulation under the Phase II Rule at a future time.

The Ninth Circuit then addressed Industrial Petitioners' remaining challenges to the Phase II Rule, rejecting their argument that EPA failed to consult with state and local officials when promulgating the Phase II rule, as required by section 402(p)(5). (165) Judge Browning concluded that EPA satisfied section 402(p)(5)'s requirements because the agency circulated a draft of the Phase II rule to states, EPA regional offices, and the Association of State and Interstate Water Pollution Control Administration in November 1993; received their comments; and based the final version of the rule on these comments. The court found that EPA demonstrated evidence that it "extensive[ly] consult[ed]" with local officials. (166)

Moreover, the court refuted Industrial Petitioners' assertion that EPA violated the CWA by considering public comment and additional research in developing the Phase II Rule, rather than relying solely on section 402(p)(5) studies. The court determined that Industrial Petitioners had standing to raise this procedural challenge based on established Ninth Circuit precedent that an agency's procedural violation is sufficient to establish a plaintiff's injury and because the causal connection between EPA's alleged failure to restrict its scope to section 402(p)(5) studies and Industrial Petitioners' injury was sufficiently "probable." (167) Nonetheless, the court concluded that Congress unambiguously expressed its intent in the CWA that EPA base the Phase II Rule on the section 402(p)(5) studies and in consultation with state and local officials, and found that the APA required EPA to provide the public notice and an opportunity to comment on the proposed rule.

Judge Browning also concluded that EPA did not act arbitrarily and capriciously in designating small MS4s for Phase II regulation based upon Census Bureau--defined population densities because the statute only directed EPA to designate additional stormwater discharges "to protect water quality." (168) Affording EPA "great deference," (169) Judge Browning reasoned that because perfect documentation was not required in an area of agency technical expertise, the agency's reliance on census data that demonstrated a "high correlation" between urbanization and water pollution was sufficient. (170)

Moreover, Judge Browning upheld the Phase II Rule's inclusion of small construction sites as a reasonable decision, refuting the Municipal and Industrial Petitioners' claims that the rule 1) arbitrarily ignored the variability of water quality nationwide, 2) relied on data from large construction sites in establishing a one-acre standard for small construction sites, and 3) distinguished between construction sites and other stormwater runoff sources. The court concluded that EPA sufficiently supported the link between data concerning water quality problems at large and small construction sites, and reiterated that EPA was not required to develop "perfect" data. (171) The court further supported the Phase II Rule's rebuttable presumption of water quality impacts from small construction sites--evident in the rule's use of waivers for small construction sites not likely to harm water quality--as reasonable.

Finally, the Ninth Circuit upheld the Phase II Rule's retention of EPA authority to designate additional sources of stormwater pollution--"residual" designation authority. (172) Under the rule, a permitting authority may require a permit from any stormwater discharger at any time in the future. The court reasoned that EPA reasonably interpreted section 402(p)(6) to authorize the agency to designate a separate category of dischargers, despite insufficient evidence to establish a nationwide category, because specific data at the local level may support a designation. Because EPA reasonably determined that these potential sources may contribute to impaired water quality, the court upheld the Phase II Rule's residual designation authority provision.

Judge Browning concluded that the residual designation authority did not violate the nondelegation doctrine because section 402(p) essentially directed EPA to effectuate the central purpose of the CWA, to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," (173) and therefore articulated a determinant criterion sufficient under Supreme Court guidance. Moreover, the court rejected the Industrial Petitioners' argument that EPA failed to satisfy notice and comment requirements of the APA, reasoning that the Phase II Rule was a logical outgrowth of the proposed rule because the agency explained in the proposed rule that it would consider designating sources on the basis of categories rather than on an individual basis. Finally, the court concluded that EPA complied with the Regulatory Flexibility Act (RFA) (174) in certifying that the Phase II Rule would not impose substantial compliance costs on Industrial Petitioners.

Judge Tallman concurred in part and dissented in part, finding that the Phase II Rule impermissibly infringed on state sovereignty in violation of the Tenth Amendment. Judge Tallman took issue with the majority's conclusion that states had two alternatives to administering the federal regulatory program, concluding that states do not have an option not to discharge into U.S. waters, but must regulate their citizens to satisfy the requirements of the CWA. The dissent disagreed that the Phase II Rule offered any choice to states, arguing that to satisfy the court's guidance in Hodel v. Virginia Surface Mining & Reclamation Ass'n, (175) the Phase II Rule must give states the option to adopt the regulatory program or allow EPA to regulate directly. Moreover, Judge Tallman argued that the Phase II Rule impermissibly forced states to regulate their own citizens, because states had no option to refuse illicit discharges or runoff from construction sites. The dissent found the Alternative Permit option "qualitatively indistinguishable." (176)

Second, Judge Tallman disagreed with the majority that the Phase II Rule's general permitting system impermissibly relied on NOIs, finding the permitting system a reasonable interpretation of the CWA. The dissent maintained that the CWA did not address whether NOIs should be considered permits, and--finding EPA's general permit system reasonable--believed that the system should be upheld under Chevron. Judge Tallman emphasized that the issue required a "complicated weighing of policies," in which the court should not engage under the Chevron test. (177)

C. Oil Pollution Act

1. Sea River Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662 (9th Cir. 2002).

Owners and operator of an oil tanker formerly known as the Exxon Valdez (SeaRiver), challenged the constitutionality of section 5007 of the Oil Pollution Act (OPA). (178) The district court dismissed the complaint and SeaRiver appealed. The Ninth Circuit held that the OPA was not a bill of attainder and did not deny SeaRiver due process or equal protection.

On March 23, 1989, the Exxon Valdez ran aground, spilling approximately eleven million gallons of oil into Prince William Sound. In the wake of the disaster, Congress passed the OPA, increasing penalties and regulations on oil tankers in an attempt to prevent future spills in "environmentally sensitive area[s]." (179) Section 5007 of the OPA excluded from the Prince William Sound any vessel that spilled over one million gallons of oil after March 22, 1989. (180)

SeaRiver first challenged section 5007 as an unconstitutional bill of attainder for inflicting punishment through legislation without the protections of trial. (181) The Ninth Circuit identified a three element test of a bill of attainder comprised of the following: 1) specification of the party, 2) infliction of punishment, and 3) lack of a judicial trial. (182) Addressing the specificity of the OPA, the Ninth Circuit evaluated whether the OPA named Valdez, made its identity readily ascertainable, defined past conduct which identified Valdez, or defined Valdez by "irrevocable acts" it committed. (183) Applying these factors, the Ninth Circuit determined that although the Valdez was not named, exclusion on the basis of the date and size of irreversible oil spills occurring prior to the passage of the OPA made it easily ascertainable that the statute targeted the Valdez. However, while the court determined that the contested statute included the first characteristic of a bill of attainder, it did not satisfy the second prong of the test.

In evaluating whether section 5007 punished the Valdez, the Ninth Circuit looked to the purpose of the attainder clause and found that it concerned punishment of individuals, (184) Although a bill of attainder concerns punishment of individuals, not vessels, the Ninth Circuit found that a statute affecting individuals by targeting their property could be a bill of attainder. The court considered these three aspects in determining whether the statute inflicted punishment on the Valdez: 1) whether the statute historically would be defined as legislative punishment, 2) whether the statute rationally had nonpunitive purposes, and 3) whether legislative history indicates Congress intended the statute as punishment. Finding that the statute affected the vessel and not the owners or operator as individuals, the Ninth Circuit held that it did not "punish" in the constitutional sense. The court also applied a functional test to determine whether the burden of the statute furthered nonpunitive purposes. (185) Citing the purpose of protecting the sensitive marine environment of Prince William Sound, the Ninth Circuit decided that the passage of section 5007 had a legitimate purpose rather than solely a punitive intent because it addressed the prospective risk of future spills and protected sensitive areas from known offenders in a way that other alternatives could not achieve. Finally, the statute had little legislative history, and none that clearly indicated an intent to punish. Because the statute failed to meet the punishment prong, it did not constitute a bill of attainder.

SeaRiver also argued that section 5007 violated the Due Process Clause (186) because it applied retroactively. The Ninth Circuit relied on the test set out by the Supreme Court in Usery v. Turner Elkhorn Mining Co., (187) to evaluate the retroactive application of section 5007 by considering the clarity of congressional intent that it should apply retroactively and the rational basis for that intent. Without delving into legislative history, the Ninth Circuit reasoned that previous oil spills could rationally correlate with future conduct and thus reasonably relate to the purpose of protecting Prince William Sound. Based on this rational justification for the statute, the court held that section 5007 did not violate the due process rights of SeaRiver.

Finally, the Ninth Circuit also rejected SeaRiver's argument that section 5007 denied it equal protection in violation of the Fifth Amendment by singling it out as an unpopular target. Relying on the Supreme Court decision in Village of Willowbrook v. Olech, (188) the Ninth Circuit evaluated whether the Valdez had received intentional differential treatment compared to other similarly situated individuals without a rational basis for that difference in treatment. (189) The court found that it was "reasonable for Congress to single out the Exxon Valdez" and "rational for Congress to use this past disaster as a measure of future performance." (190) The court thus held that section 5007 did not violate the Equal Protection Clause. In total, the Ninth Circuit affirmed the decision of the district court, dismissing the complaint.

D. CERCLA

1. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 299 F.3d 1019 (9th Cir. 2002).

Cadillac Fairview/California, Inc. (Cadillac) brought suit against Dow Chemical, Inc. (Dow), the United States, and several rubber manufacturers under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (191) for expenses related to the cleanup of wartime rubber-manufacturing soil pollution. The district court held that the one hundred percent allocation of costs to the federal government was warranted, and the United States appealed. The Ninth Circuit affirmed that the district court acted within its discretion by allocating all of the cleanup costs to the United States.

During World War II, a critical shortage in rubber prompted the United States to create synthetic rubber manufacturing facilities. One of these facilities was operated as an agent plant by Dow, who agreed to operate the plant while the government retained ownership of the plant, the product, and the byproduct. The United States's agreement with Dow included a "hold harmless" agreement which protected Dow from liability for personal injury and property damage. (192) Dow disposed of toxic waste resulting from the manufacturing process in evaporation ponds or pits approved by the government, knowingly polluting the soil and water. After the war, the plant was sold and eventually Cadillac became the owner. Cadillac brought suit against Dow, the United States, and other rubber companies under CERCLA, a statute enacted thirty-five years after the war ended. Under CERCLA, any responsible party can seek contribution for cleanup costs from anyone potentially liable for the pollution. (193) In response to Cadillac's charge against the government, the United States made four arguments that at least part of the costs should be allocated to Dow.

First, the government argued that Dow created and transported waste to the ponds and pits and thus should be held responsible in part. The Ninth Circuit disagreed, finding that because the United States owned the entire facility and materials, retained complete control over the site, inspected and approved it, and considered Dow an agent, the United States had a relationship with Dow that required indemnity. Therefore, the district court properly allocated costs to the United States.

Second, the government argued that the district court failed to consider the benefits Dow received from operating the plant such as reimbursement of expenses, acquisition of knowledge, and expansion in the market. However, because the evidence offered by the government was speculative and the benefits to the government grossly outweighed the benefit to Dow, the Ninth Circuit determined that the district court did not abuse its discretion in disregarding the benefit to Dow.

Third, the government challenged the district court's factual findings, arguing that it had only indirect control of the facility. On careful examination, the Ninth Circuit found no error in the district court's factual findings about the United States's knowledge and control.

Finally, the United States argued that its promise to hold Dow harmless should have been disregarded by the district court in determining the allocation of costs because, under the Tucker Act, it did not have jurisdiction to enforce that contract against the United States. (194) The Ninth Circuit held that although the district court did not have jurisdiction to enforce the contract, it could consider the clause as an equitable factor in allocating costs under section 113(f) of CERCLA. (195) Because the contract was not at issue, contract issues bore no weight in the case.

2. Fireman's Fund Insurance Company v. City of Lodi, 302 F.3d 928 (9th Cir. 2002), cert. denied, 123 S. Ct. 1754 (2003), infra Part V.F.

3. California Department of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113 (9th Cir. 2002), cert. dismissed, 123 S. Ct. 2267 (2003), infra Part V.A.

4. O'Connor v. Boeing North American, Inc., 311 F.3d 1139 (9th Cir. 2002), infra Part V.F.

5. California ex rel. California Department of Toxic Substances Control v. Campbell, 319 F.3d 1161 (9th Cir. 2003).

The State of California filed suit against landowners for contamination of groundwater with trichloroethylene (TCE). The landowners in turn sued Louisiana-Pacific Corp. (LP) for contribution. The district court granted summary judgment for LP, holding that the landowners failed to raise a genuine issue of material fact. The Ninth Circuit reversed and remanded to the district court.

The California Department of Toxic Substances Control traced a plume of TCE contamination in groundwater in Chico, California to the property of the landowners, determining that their land was the source of contamination. In an earlier appeal, the Ninth Circuit affirmed the liability of the landowners. (196) On further proceedings in district court to determine damages, the landowners argued that LP, whose property was located on the portion of the plume with the greatest concentration of TCE, was a contributing source of contamination and should contribute towards cleanup. LP argued in turn that the landowners failed to provide evidence sufficient to create liability for LP and fried a motion for summary judgment. The district court granted the motion.

On appeal, the landowners argued that summary judgment was inappropriate because they provided enough evidence to present a genuine issue of material fact concerning LP's liability. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (197) the landowner's claim for contribution had to demonstrate that LP was a member of a class of proper defendants, their site was a facility, there was a release of TCE on the property, and that the release caused damages. (198) LP argued that the landowners failed to demonstrate any genuine issue over whether LP ever released TCE on their property. However, the landowners provided testimony from former LP employees about TCE dumping, and expert testimony about the probability of contamination by LP based on the concentration of the TCE plume and the presence of contaminants that result from TCE degradation. They also offered testimony that the testing on LP's property was improperly conducted. While the district court dismissed this evidence as too speculative and contradicted by evidence provided by LP, the Ninth Circuit determined that the credibility or weight of the evidence was a matter for the jury, not the judge. Finding that the landowners had offered evidence from which a reasonable jury could find against LP, the Ninth Circuit reversed the grant of summary judgment and remanded to the district court for a determination on whether LP ever released TCE.

E. National Environmental Policy Act

1. Tillamook County v. United States Army Corps of Engineers, 288 F.3d 1140 (9th Cir. 2002), supra Part I.B.

2. Ka' Makani 'O Kohala Ohana, Inc. v. Department of Water Supply, 295 F.3d 955 (9th Cir. 2002).

Ka Makani 'O Kohala Ohana, Inc. (Ka Makani), a citizen coalition, appealed the United States District Court for the District of Hawaii's summary judgment decision dismissing Ka Makani's action against the County of Hawaii Department of Water Supply (DWS) and its Department Manager, the United States Geological Survey (USGS) and its District Chief, and the United States Department of Housing and Urban Development (HUD) and the Secretary's Representative of HUD. The Ninth Circuit held that the involvement by the USGS and HUD in a transbasin water diversion system project (the Project) did not constitute a "major Federal action" under the National Environmental Policy Act (NEPA). (199) Therefore, the court concluded that NEPA requirements for a detailed Environmental Impact Statement (EIS) were not triggered, and the court affirmed the district court's dismissal.

The DWS planned a transbasin water diversion system in Hawaii to transfer groundwater in order to provide potable water for coastal resorts. The USGS matched the DWS's $800,000 for preliminary studies of the area, planned its own studies on the impact of the Project on streams at DWS's request, and consulted with DWS about the Project's design. When Congress passed an appropriations bill allocating $500,000 for a state EIS evaluating the development of a water resource system for the community, HUD gave the County of Hawaii the application materials for the "special purpose grant" and provided recommendations about the application--including how to restrict activities to exempt them from NEPA requirements. (200)

The Ninth Circuit first decided that its review of the district court's decision would be de novo, and therefore reviewed the agency's decision for "reasonableness." (201) The court reasoned that when an agency has not conducted an environmental assessment and decides not to require an EIS, and if the issues of the case are "primarily legal" and the facts of the case are undisputed, the court will review under a "reasonableness" standard. (202) This standard gives the agency's decision deference unless "it is plainly erroneous or inconsistent with the regulation." (203)

The Ninth Circuit then addressed whether the involvement of the USGS and HUD rendered the Project a "major Federal action" under NEPA. (204) NEPA requires that an EIS be prepared by a federal agency for all "major Federal actions significantly affecting the quality of the human environment." (205) To determine whether the Project fell within the scope of NEPA, the court looked at the role of federal funding and the degree of agency control over the Project. Because the total of all federal funding was only $1.3 million compared to the estimated $80 million total cost of the Project, the court concluded that the federal contribution was not enough to transform a state action into a federal one. In addition, though USGS and HUD gave extensive advice in the planning stage of the Project, the state retained control over decision-making. Therefore, because federal action was restricted to the support and funding of preliminary studies and the Project was ultimately controlled by the state and other nonfederal groups, the court held that there was no "major federal action" as described under NEPA.

Finally, the Ninth Circuit responded to Ka Makani's contention that HUD's regulations require a federal EIS for special purpose grants. Under HUD's regulations, a federal EIS is required for the grants unless the project fits into an exemption, including "[e]nvironmental and other studies, resource identification and the development of plans and strategies." (206) The court affirmed the exemption status of the Project under this definition. In addition, the court refuted Ka Makani's reliance on the "connected actions" provision in HUD regulations which requires the aggregation of all activities related through geography or functionality into one project. (207) The Ninth Circuit found that when a special purpose grant had been given specifically for the preparation of an EIS and other preliminary activities, "it would be illogical to require a full-blown EIS of the whole Kohala Project before permitting the release of funding for these preliminary purposes." (208) Finally, the court found that these preliminary activities had no impact on the environment, which would defeat the aggregating purpose of the "connected actions" provision. (209) Therefore, the court held that HUD's interpretation of its own regulation was proper, affirming the district court's summary judgment decision.

3. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002).

Neighbors of Cuddy Mountain, the Ecology Center, and Idaho Sport Congress (collectively Neighbors) challenged approval by the United States Forest Service (USFS) of a timber sale in the Grade and Dukes Creek area (Grade/Dukes) of the Payette National Forest in Idaho. Neighbors argued that USFS violated the National Forest Management Act (NFMA) (210) and the National Environmental Policy Act (NEPA) (211) when it approved the Grade/Dukes timber sale. The district court dismissed Neighbors' two NFMA claims as unripe and, in the alternative, as redundant, and ruled that USFS's Environmental Impact Statement (EIS) was sufficient. The Ninth Circuit reversed the district court's dismissal of Neighbors' NFMA claims, holding that the claims were reviewable under the Administrative Procedure Act (APA) (212) because the challenge to USFS's forest monitoring was related to the lawfulness of the agency's decision to approve the timber sale. In addition, the Ninth Circuit affirmed the district court's ruling that USFS took the requisite 'hard look' required by NEPA (213) to consider the environmental effects of the project.

Neighbors made four specific claims against USFS. First, Neighbors argued that USFS failed to collect sufficient data tO ensure old growth dependent species diversity in Payette National Forest when it approved the timber sale, in violation of NFMA. (214) Second, they asserted that USFS failed in its duties under NFMA to ensure that old growth dependent species are well-distributed in the area. (215) Third, the environmentalists argued that USFS failed to meet the old growth habitat requirements set out in the Payette Forest Plan, as required by NFMA. (216) And fourth, the plaintiffs contended that USFS violated NEPA by failing to adequately consider cumulative impacts on the environment in the supplemental environmental impact statement (SEIS) as a result of the Grade/Dukes timber sale. In response, USFS argued that Neighbors' claims were moot because Boise-Cascade Corporation completed loggIng of the timber sale at issue during litigation.

In response to USFS's mootness argument, the Ninth Circuit held that the case was not moot even though the area had already been logged because the court could still provide effective relief to plaintiffs for the alleged violations of NFMA and NEPA. The court relied on its decisions in Northwest Environmental Defense Center v. Gordon (Gordon) (217) and Cantrell v. City of Long Beach, (218) both of which involved irreparable injury to natural resources. In Gordon, the Ninth Circuit did not find a challenge to regulations governing a salmon fishing season mooted by the close of the season because the court could afford relief to the plaintiffs by requiring more escapement in subsequent years, (219) In Cantrell, the Ninth Circuit declined to find moot a challenge to an EIS involving a development plan for a former naval station, even though historical buildings and bird habitat were already destroyed under the plan, because the defendants could develop mitigation measures if forced to conduct an adequate environmental review. (220) In the present case, the court reasoned that, as in Gordon and Cantrell, the plaintiffs could still obtain relief because the district court could order USFS to study the effects on old growth species or mitigate the project's adverse effects.

The Ninth Circuit distinguished Headwaters, Inc. v. Bureau of Land Management, (221) in which the court found a challenge to a timber sale mooted by the complete logging of the trees. (222) The Ninth Circuit reasoned that its decision in Headwaters did not apply because the plaintiffs in that case had narrowly drawn their complaint and failed to make a broad request for relief. On the other hand, in this case the plaintiffs properly formulated a broad request for relief "as may be necessary and appropriate to avoid further irreparable harm." (223)

The Ninth Circuit then reached the district court's decision to dismiss the Neighbors' NFMA claims as unripe because they were not sufficiently connected to site-specific action. USFS disputed the court's jurisdiction to hear Neighbors' NFMA claims because they challenged forest-wide monitoring and reporting, which are not "final agency action[s]" under the APA, (224) and therefore not reviewable. The court rejected USFS's argument, reasoning that Neighbors challenged USFS's monitoring practices as they related to the Grade/Dukes timber sale, a final agency action. (225) The court determined that Neighbors' complaint alleged a sufficient causal connection between USFS mismanagement and the agency's arguably unlawful approval of the Grade/Dukes timber sale. The Ninth Circuit distinguished Ecology Center, Inc. v. United States Forest Service, (226) where the plaintiffs claim was primarily aimed at USFS monitoring duties and not a final agency action. The Ninth Circuit also distinguished Sierra Club v. Peterson, (227) where the plaintiffs used a "laundry list" of sales to challenge USFS's forest management practices in Texas. (228)

The Ninth Circuit next rejected USFS's argument that Neighbors' NFMA claims were inapplicable because the old growth habitat requirement set out by the Payette Forest Plan was satisfied in the area directly affected by the Grade/Dukes timber sale and in the adjacent areas. The Ninth Circuit reasoned that management activities that comply with the Payette Forest Plan's old growth habitat requirements may still implicate NFMA's requirements for species viability throughout the forest because destruction of old growth habitat elsewhere may result in harm to species if the specific timber sale is approved. The court concluded, therefore, that forest-wide practices were directly relevant to the specific timber sale because not following NFMA would contradict the purpose of the statute to manage forests with a "'systematic interdisciplinary approach.'" (229)

In the alternative, the district court dismissed the NFMA claims because they were redundant given the plaintiffs' fourth claim alleging that USFS's EIS was insufficient under NEPA. The Ninth Circuit reversed the district court's decision, concluding that the first two claims could not be redundant because they were founded on NFMA, while the plaintiffs' fourth claim was based on NEPA. The court reasoned that because the claims were based on different statutes that imposed different duties on USFS, the district court's decision was an abuse of discretion.

Finally, the Ninth Circuit addressed the NEPA claim, affirming the district court's decision that the Grade/Dukes timber sale SEIS adequately addressed cumulative impacts to old growth species in the Payette National Forest. Under USFS regulations, "[c]umulative impact" is the "impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions." (230) The Ninth Circuit explained that a court must determine if an agency took a "'hard look'" (231) at the environmental effects of a timber sale when addressing the adequacy of an EIS, and determine if the EIS contains a "'reasonably thorough discussion of the significant aspects of probable environmental consequences.'" (232) The Ninth Circuit concluded that USFS did take a "hard look" at the effects of the Grade/Dukes timber sale, and that the agency was not required by NEPA to take into account the effects the sale would have upon the east side of the forest, which had been recently burned in a fire. (233)

Judge Thompson concurred as to the NEPA claims but dissented as to the NFMA claims, arguing that the NFMA claims were moot because the court did not have the ability to grant relief to plaintiffs for the damage caused by alleged illegal logging of old growth forest. The dissent explained that the three types of mitigation the majority relied on in its opinion--"(1) a prohibition on future logging; (2) construction of artificial habitat; or (3) studies on the effects of any unlawful logging and possible mitigation"--were not remedies available to the court. (234) The dissent opined that that the majority's reliance on Gordon was misplaced because, unlike an order requiring more salmon escapement, a prohibition on future logging would not replace old growth since old growth forests take hundreds of years to develop. The dissent further reasoned that future logging should be analyzed by considering the effects of the proposed logging in conjunction with the effects of the Grade/Dukes timber sale in a cumulative effects analysis. Responding to the majority's position that a possible form of relief to the plaintiffs might include construction of artificial habitat to mitigate the habitat destroyed as a result of the timber sale, the dissent maintained that old growth habitat cannot be developed because it takes centuries to occur naturally. The dissent finally concluded that studies of the adverse effects of the sale on old growth dependent species' viability would also be an inadequate form of relief absent the possibility of mitigation.

4. Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002), infra Part II.C.

5. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002), infra Part II.C.

6. Forest Guardians v. Animal & Plant Health Inspection Service, 309 F.3d 1141 (9th Cir. 2002), infra Part II.B.

7. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002), supra Part I.B.

8. California v. Norton, 311 F.3d 1162 (9th Cir. 2002).

The United States, as represented by several officers and agencies, and intervening offshore oil lessees, appealed a district court's summary judgment decision. The district court had ruled in favor of the State of California, represented by officers and agencies, ten environmental groups, and two intervening counties, enjoining thirty-six offshore oil suspensions pending 1) consistency review by California under the federal Coastal Zone Management Act (CZMA), (235) and 2) an explanation of applicability of the United States's categorical exclusion of the lease suspensions under the National Environmental Policy Act (NEPA). (236) The lease suspension given by the United States allowed oil companies to keep production rights despite the fact that they "had not begun production in paying quantities." (237) The Ninth Circuit affirmed both of the district court's decisions.

First, the Ninth Circuit affirmed consistency review under section 1456(c)(1) of the CZMA which provides for review of federal agency activity affecting the coastal zone. (238) The United States argued that requiring consistency review under the CZMA would be duplicative of other consistency reviews of the required exploration plans and development and production plans. (239) In addition, the United States claimed that Congress had denied consistency review of the subsidiary licenses and permits necessary to carry out the plans (240) and that consistency review was therefore limited to the plans. The Ninth Circuit refuted that argument by examining the legislative history of the 1990 amendments to section 1456(c)(1) (241) that explicitly made clear that lease sales (242) were subject to consistency review. Based upon this examination, the Ninth Circuit found that "Congress ha[d] made it clear that the statute does not prohibit consistency review of federal agency activities that are not subsidiary to exploration and development and production plans." (243) In addition, the court pointed out that the sale of the leases in the case had never been reviewed because they were issued prior to the 1990 amendments. Finally, the Ninth Circuit mentioned the need to review the leases for consistency with the numerous policies and laws that California and the intervening counties have enacted since the sale of the leases. (244) Therefore, the court affirmed the district court's decision to enjoin the lease suspensions pending consistency review.

In addition to looking at CZMA section 1456(c)(1), the court evaluated whether CZMA section 1456(c)(3), which provides for consistency review of applications for permits that allow activity affecting the coastal zone, (245) would have allowed the State to review lease suspensions for consistency with California's coastal management programs. However, CZMA subsections 1456(c)(1) and 1456(c)(3) are mutually exclusive, (246) and the court found that a lease sale, which is definitely covered by section (c)(1), is more like a lease suspension than one of the "highly specific activities reviewed under section 1456(c)(3)." (247)

Second, the Ninth Circuit affirmed the district court's requirement that the United States explain its categorical exclusion of the suspensions from NEPA's requirements. (248) The United States simply argued that, on the record, the lease suspensions were part of a "category of actions which do not individually or cumulatively have a significant effect on the human environment" (249) and that the suspensions did not fall into one of the ten exceptions to the categorical exclusion. (250) However, the court noted that the United States did not identify any evidence in the record that demonstrated it had considered the exclusion at the time it approved the suspension, thereby thwarting an arbitrary and capricious review (251) and bypassing the "hard look" required by NEPA. (252)

In addition, the Ninth Circuit pointed to the "substantial evidence in the record that exceptions to the categorical exclusion may apply," (253) and therefore determined that the United States at least needed to explain why the exclusion was applicable. (254) In particular the court examined exception 2.2, which forbids the exclusion if there may be negative effects on "ecologically significant or critical areas," exception 2.3, which forbids exclusion if the action may have "highly controversial environmental effects," and exception 2.8, which forbids exclusion if the action may have effects on "listed or proposed ... Endangered or Threatened Species, or have effects on designated Critical Habitat for these species." (255) Because of the impact to Monterey Bay and Channel Islands National Marine Sanctuaries, the scientific and public controversy surrounding the suspensions, and the concern over the threatened sea otter (Enhydra lutris nereis), the court affirmed the district court's requirement that the United States explain the categorical exclusion of the suspensions.

9. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002), infra Part II.C.

10. Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002), infra Part IV.

11. Public Citizen v. Department of Transportation, 316 F.3d 1002 (9th Cir. 2003).

Public Citizen and others (collectively Public Citizen) challenged three regulations promulgated by the Federal Motor Carrier Safety Administration (FMCSA) under the National Environmental Policy Act (NEPA) (256) and the Clean Air Act (CAA). (257) The Ninth Circuit held that FMCSA failed to conduct adequate environmental assessments.

FMCSA, a branch of the Department of Transportation, promulgated three regulations concerning the application and use of Mexican-domiciled trucks for conducting business across the United States border in recognition of the North American Free Trade Agreement (NAFTA). (258) President Bush subsequently lifted a long-standing moratorium on business conducted by Mexican-domiciled trucks in the United States. For two of the regulations, the Application regulation (259) and Safety Monitoring System regulation, (260) FMCSA conducted an environmental assessment and issued Findings of No Significant Impact (FONSIs). For the third regulation, the Certification regulation, (261) FMCSA did not conduct an environmental assessment because it determined that the regulation was categorically exempted from the requirement, without conducting a conformity determination as required under the CAA. Public Citizen claimed that FMCSA failed to conduct a necessary environmental Impact statement (EIS) under NEPA as well as a conformity determination under the CAA and petitioned the Ninth Circuit for review under the Administrative Procedure Act (APA). (262)

The Ninth Circuit first addressed preliminary questions about Public Citizen's ability to bring suit. For standing, Public Citizen needed to demonstrate injury in fact, causation, and redressability. (263) The Ninth Circuit evaluated standing by considering the procedural injury caused by FMCSA's failure to perform necessary environmental analyses. Among the plaintiffs were United States residents living along the Mexican border in California and Texas, who claimed that additional emissions from trucks permitted into the United States would create increased health hazards. Relying on Supreme Court precedent, (264) the Ninth Circuit determined that for environmental injury cases, injury in fact could be demonstrated by showing that the plaintiffs' use of the area would be hampered or lessened by the challenged activity. Public Citizen provided evidence that one of its members reduced outdoor recreation when smog and pollution warnings were issued, thus satisfying the injury in fact requirement.

Public Citizen also met the causation and redressability requirements, standards which the Ninth Circuit held were lowered when the alleged injury is procedural. Concerning causation, FMCSA argued that the regulations themselves did not cause increased emissions because until the President removed the moratorium, there was no probable threat from the regulations. The Ninth Circuit rejected this theory because Public Citizen provided evidence that the President had indicated he would remove the moratorium if safety measures were in place. The court found that this established the reasonable probability of the threat, regardless of the two separate actions that had to occur to create it. The court also determined that, because the regulations would become effective if Public Citizen's challenge was denied, the likelihood of harm was high. The Ninth Circuit then held that the harm was redressable because the further environmental analyses required by the court could affect the enactment of the regulations causing the harm.

The Ninth Circuit also addressed whether Public Citizen had organizational standing to bring suit. Applying the test defined in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., (265) the court determined that the members would individually have standing, their interests were central to the organization, and suit by the organization would make individual suits unnecessary. Thus the Ninth Circuit summarily determined that Public Citizen had organizational standing.

The final standing issue addressed by the court was whether Public Citizen met APA standing requirements, which call for 1) final adverse agency action and 2) injury that falls within the "zone of interests" of the statute at issue. In this case, the final agency action occurred when the agency promulgated the regulations, and Public Citizen's aim to protect the environment fit easily within NEPA purposes.

In considering the adequacy of the environmental analyses conducted by FMCSA prior to enactment of the regulations, the Ninth Circuit considered separately the NEPA and CAA claims, keeping in mind the standard that the agency was required to take a "hard look" at the consequences of its actions prior to promulgation. (266)

Under NEPA, an EIS must be conducted for "major Federal actions significantly affecting the ... human environment." (267) A less extensive environmental assessment (EA) may first be conducted to determine whether an EIS is necessary. (268) If the EA demonstrates no possible significant impact, the agency may issue a FONSI. (269) For both the Application and Safety Monitoring regulations, the agency issued FONSIs.

Analysis of the necessity for an EIS includes evaluation of whether the action is a "major Federal action" and "whether [that action] may significantly affect the environment." (270) Under NEPA, a major federal action is one that may have significant effects and may be subject to federal control. (271) In arguing that the regulations were not major actions, FMCSA claimed any environmental effects would result from the revocation of the moratorium by the President, not from the regulations. The Ninth Circuit rejected this assertion because of the requirement that indirect, later effects be considered as part of the overall effect of any given federal regulation. (272) Having already determined that the Presidential action was reasonably foreseeable, the Ninth Circuit determined that the regulations adopted by FMCSA constituted major federal actions.

The Ninth Circuit next determined that the regulations also significantly affected the human environment. Conducting an in-depth evaluation of what "significant" means, the court explained that it entails both context and intensity of the environmental impacts. (273) On the context front, the Ninth Circuit found that FMCSA failed in two ways. First, it did not evaluate the local impacts. Second, it narrowed the scope to only the year 2002. In assessing the intensity of the possible environmental impacts of the regulations, the Ninth Circuit found that FMCSA failed to consider the health effects of increased exhaust emissions, the uncertainty regarding increases in Mexican truck traffic and polluting emissions, the conformity of the regulations with California's state emission standards, and the substantial dispute of its assessment as embodied by the high percentage of public comments opposing the regulations. Because the regulations arguably constituted a major federal action with a plausible substantial impact on the environment, the agency had a duty to offer a statement of the reasons why it did not think a significant negative environmental impact would occur. Having failed to offer any such rationale, the Ninth Circuit held that FMCSA was required to conduct an EIS rather than an EA.

The Ninth Circuit also rejected FMCSA's rationale for not conducting environmental analyses for its third regulation, the Certification regulation. Under the CEQ regulations, actions that do not have independent or cumulative significant effects, as found by procedures adopted by a federal agency, are categorically excluded from NEPA requirements. (274) Although the proposed regulation did not fall into any defined categorical exclusion, FMCSA argued it should be excluded because it had no significant environmental impact. The Ninth Circuit rejected this weak argument, holding that the agency had a duty to conduct an environmental analysis.

Finally, the Ninth Circuit considered FMCSA's compliance with CAA air quality standards. Under the CAA, states create EPA-approved State Implementation Plans (SIPs) for pollutants, which limit emissions and have the purpose of bringing all regions into compliance with air quality standards. (275) While most federal actions require a "conformity determination" to evaluate the conformity with any SIP, (276) two categories of federal actions are exempted from this requirement. (277) These two categories include actions in which the total direct and indirect emissions fall below statutory limits, and those which do not increase emissions. (278) FMCSA argued that the regulations were exempt under both exceptions and thus it had no duty to make conformity determinations. However, the Ninth Circuit rejected this argument because the agency failed to adequately assess emissions levels, instead focusing only at a national assessment of emissions, again attempting to separate the impact of its regulations from the impact after the President lifted the moratorium. The Ninth Circuit also rejected FMCSA's argument that the second exception applied to all federal regulations. Therefore, the court instructed FMCSA to conduct a conformity determination for all three regulations.

II. NATURAL RESOURCES

A. Endangered Species Act

1. Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002), infra Part II.C.

2. National Audubon Society, Inc. v. Davis, 307 F.3d 835 (9th Cir. 2002), amended by 312 F.3d 416 (9th Cir. 2002), supra Part V.F.

3. Southwest Center For Biological Diversity v. United States Forest Service, 307 F.3d 964 (9th Cir. 2002).

Forest Guardians and the Center for Biological Diversity (279) (collectively the Center) sought an injunction against the United States Forest Service (USFS) to stop grazing in certain allotments of land in the southwestern United States because of its impact on the loach minnow (Tiaroga cobitis), a species listed as endangered under the Endangered Species Act (ESA). (280) The Center argued that USFS violated section 7 of the ESA (281) by allowing grazing in the allotments prior to concluding consultation with the United States Fish and Wildlife Service (FWS) concerning the effect of grazing on the loach minnow. New Mexico Cattle Growers' Association and Arizona Cattle Growers' Association intervened in the suit. The district court ruled that although USFS violated section 7 of the ESA by falling to complete consultation on certain allotments, grazing did not cause irreparable harm to the loach minnow, and thus an injunction was not required. The Ninth Circuit affirmed, ruling that despite the general rule requiring an injunction for a substantial procedural ESA violation, a "narrow exception" applied in the case of nonjeopardizing activities. (282) For such activities, section 7(d) (283) requirements controlled whether the agency would continue the activity during consultation, provided the activity did not violate other ESA provisions. The Ninth Circuit explained that the district court had determined that grazing during consultation would not substantially impact the loach minnow. Considering section 7(d), the Ninth Circuit concluded that USFS did not make an irretrievable commitment of resources that would foreclose reasonable and prudent alternatives. Thus, grazing in the project area could continue until the agency completed formal consultation.

The Ninth Circuit initially outlined USFS's obligations under section 7 of the ESA. Under section 7(a)(2), federal agencies must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species." (284) Federal agencies must determine whether their actions will jeopardize a listed species through consultation with either FWS or the National Marine Fisheries Service. If formal consultation is necessary and initiated, FWS must issue a Biological Opinion determining whether the activity will jeopardize the species at issue, and if so, if there are reasonable and prudent alternatives to avoid jeopardy. (285) In addition, section 7(d) of the ESA requires that after federal agencies initiate formal consultation, agencies must not make any "irreversible or irretrievable commitment of resources" that might foreclose "reasonable and prudent alternative measures." (286) The district court made a finding of fact that USFS failed to complete consultation with FWS on certain allotments, but did not issue an injunction restricting grazing until completion of consultation, finding no threat of irreparable harm and that a balancing of the equities weighed in favor of USFS.

For injunctions under the ESA, Tennessee Valley Authority v. Hill (TVA) (287) alters the traditional test by limiting courts' discretion to balance the hardships when considering issuing an injunction. The court explained that the test for injunctions for violations of the ESA is whether the moving party can show a likelihood of success on the merits and a showing of irreparable injury. (288) The Center relied on the Ninth Circuit's decision in Thomas v. Peterson (289) to argue that an injunction against USFS was required because a court must not consider irreparable harm when an agency commits a substantial procedural violation of the ESA. In Thomas, the court reasoned that the remedy for a substantial procedural violation of the ESA must be an injunction of the federal project. (290) Similarly, the United States District Court for the Western District of Washington held in Greenpeace v. National Marine Fisheries Service (291) that failure to comply procedurally with section 7 of the ESA triggered an injunction regardless of whether plaintiffs could prove future harm. (292) In addition, the Ninth Circuit followed the Supreme Court's decision in TVA when it ruled in Biodiversity Legal Foundation v. Badgley (293) that injunctions must issue for violations of section 7 of the ESA. (294) The court emphasized its holding in Badgley that substantial compliance with ESA procedures was necessary to effectuate congressional intent. (295)

The Ninth Circuit relied on the district court's determination that USFS did not complete consultation on several allotments, to find that the Center satisfied the "success on the merits" requirement for an injunction. (296) Nonetheless, the court concluded that USFS's actions did not constitute a "substantial procedural violation" (297) of the ESA because the case fit into a narrow exception under the court's decision in Sierra Club v. Marsh. (298) The Ninth Circuit stated that Marsh "support[ed] a conclusion that non-jeopardizing agency action may take place during the consultation process in light of the protections of section 7(d) where the action will not result in substantive violations of the act." (299) The court distinguished Thomas because in that case there was no evidence to determine whether the action would cause jeopardy to the species. Here, however, the agency and the court could evaluate the effects of grazing on the loach minnow because cattle were currently grazing in the project area. Further, by implementing measures to minimize the effects of grazing, USFS fulfilled the purpose of the ESA to protect endangered and threatened species. As a result, the court concluded that USFS substantially complied with section 7(a) of the ESA, and only the requirements of section 7(d) applied. Reasoning that USFS did not make an irretrievable commitment of resources to the project because livestock grazing is "flexible and can be altered," the Ninth Circuit concluded that USFS did not violate section 7(d). (300) Given the absence of adverse effects on the loach minnow in the project area, the court concluded that the district court's balancing of the equities was only "harmless error." (301)

The court then dismissed as moot the Center's claims regarding six allotments because USFS completed ESA consultation. Under the mootness doctrine, a court may not review a case if no live controversy exists. The court acknowledged the Supreme Court's exception to mootness for cases in which the action is "capable of repetition but evades review." (302) However, the court concluded that because consultation was still incomplete for three grazing allotments, there was a live controversy as to these allotments and the whole case was not moot.

The court finally rejected the cattle growers' cross-appeal that the Center failed to satisfy the sixty-day notice requirement of the ESA's citizen suit provision (303) for claims in its amended complaint, and that the court therefore lacked jurisdiction to hear the case. One of the Center's additional claims challenged the adequacy of FWS's biological opinion on the effects of grazing on the loach minnow. The court relied on the Supreme Court's decision in Bennett v. Spear, (304) in which the Court held that challenges to biological opinions are properly pled under the Administrative Procedures Act (305) (which does not have a sixty-day notice requirement) rather than the ESA's citizen suit provision. (306) Further, the court declined to dismiss the Center's claim challenging USFS's findings during consultation, which also lacked notice. The court reasoned that the process for making findings during consultation is part of the consultation process. Explaining that because the Center properly noticed USFS's failure to consult regarding the loach minnow, USFS was on notice as to subsequent claims challenging the legality of the consultation process. As a result, the court concluded that the Center satisfied the ESA's notice requirements and the court had jurisdiction to review the case.

Judge Canby dissented, arguing that grazing should have been enjoined until USFS completed ESA consultation. Judge Canby thought that the procedural "requirement of section 7(a)(2) makes little sense" if completion of consultation was not required before proposed actions could proceed because the purpose of consultation was to deduce whether activities would jeopardize listed species. (307) Judge Canby reasoned that even though Marsh stood for the principle that section 7(d) requirements apply after initiation of consultation, section 7(d) did not supplant the requirements of section 7(a)(2). As a result, the procedural violation of section 7(a)(2) warranted an injunction.

4. Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002).

Editor's Note: The Ninth Circuit withdrew its opinion, Biodiversity Legal Foundation v. Badgley, 284 F.3d 1046 (9th Cir. 2001) (summarized in issue 32:3 of Environmental Law), and replaced it with the opinion summarized below.

Numerous individuals and environmental groups sued the Department of Interior (the Department) and the United States Fish and Wildlife Service (FWS) for falling to observe the statutory deadlines for responding to petitions to list various plant and animal species as threatened or endangered. (308) The district court first ruled against the environmental groups and in favor of the Department and FWS, finding that under the Endangered Species Act (ESA), (309) FWS had discretion to make the ninety-day substantial information findings past the twelve-month warranted/not warranted deadline. (310) Second, the district court denied FWS's request for more time to make court-ordered warranted/not-warranted findings. The Ninth Circuit reversed the first district court decision as inconsistent with the statutory language, but affirmed the second because the district court lacked equitable discretion.

Before reaching the substantive merits of the case, the Ninth Circuit reviewed FWS's assertion that the envi