Case summaries.

1. Ober v. EPA, 84 F.3d 304 (9th Cir. 1996).

Phoenix residents adversely affected by excessive levels of airborne particulates petitioned for review of a final decision of the Environmental Protection Agency (EPA) under the Clean Air Act (CAA). EPA had approved Arizona's State Implementation Plan (SIP) for the control of airborne particulate matter in Phoenix. The petitioners alleged that EPA approval violated the CAA and the Administrative Procedure Act (APA), because the SIP failed to address a number of substantive and procedural requirements. The Ninth Circuit agreed with a number of the issues raised by the petitioners, and remanded to the EPA to address deficiencies in the SIP.

When EPA promulgated the National Ambient Air Quality Standards (NAAQS), it identified particulate matter under ten microns in size (PM-10) as a criteria pollutant to be regulated under the CAA For PM-10, EPA adopted an annual NAAQS and a 24hour NAAQS. EPA initially designated Phoenix a moderate nonattainment area for PM-10. If a SIP demonstrates the impracticality of attainment of a criteria pollutant by the statutory deadline, the area will be reclassified as a serious nonattainment area The CAA is silent as to whether a SIP must independently address the two NAAQS for PM-10 to demonstrate impracticality of attaining one of the NAAQS. EPA interpreted the CAA to require an area to attain both the annual and 24 hour NAAQS, by the statutory deadline, to prevent being reclassified as a serious nonattainment area

The Ninth Circuit accepted EPA's interpretation as a permissible construction of the CAA. However, the court disagreed with EPA's argument that Arizona's SIP did not need to separately address the 24-hour NAAQS because Phoenix would be reclassified as a serious nonattainment area for PM-10 unless the SIP provided for attainment of both NAAQS. The court held that Phoenix's inability to attain the annual PM-10 standard did not relieve Arizona of the duty to independently examine the 24hour standard in the SIP.

The Ninth Circuit emphasized that EPA had different purposes when it promulgated each NAAQS for PM-10. The 24-hour standard protects against acute short-term exposures to high PM-10 levels, while the annual standard protects against chronic long-term degradation of lung function. Violations of the 24-hour standard are generally caused by local sources, while violations of the annual standard can be caused by diverse, dispersed sources. Also, control measures differ in effectiveness for the two standards. On remand to EPA, the Ninth Circuit directed EPA to require the state to independently demonstrate in the SIP the implementation of "reasonably available control measures" targeted at the 24-hour standard, attainment of or impracticality of attainment of the 24-hour standard, and "reasonable further progress" towards attainment of the 24-hour standard.

The petitioners also argued that transportation control measures were presumptively "reasonable available control measures" pursuant to Delaney v. EPA(1) (decision based upon then current EPA policy). The Ninth Circuit noted that Delaney was decided before the 1990 Amendments to the CAA, after which EPA had discretion to alter its policy on transportation control measures. The court held that EPA's current policy, allowing states to consider local circumstances when determining if transportation control measures are reasonably available, was a reasonable interpretation of the CAA. The Ninth Circuit also deferred to EPA's determination that the SIP provided adequate assurances by the state for implementation of the plan.

The petitioners alleged a number of violations of the notice and comment provisions of the APA. After the close of the public comment period for EPA's proposed approval of the SIP, Arizona sent approximately 300 pages of documents to EPA justifying the state's rejection of specific control measures. EPA requested these documents and clearly relied on them in approving the SIP. While an agency may use supplementary data unavailable during the notice and comment period if there is no showing of prejudice, the court determined that in this case the petitioners were prejudiced because of the nature and extent of the additional information.

The Ninth Circuit also held that EPA failed to follow procedure when it substituted its own finding of "reasonable further progress" for that determined by the state in the SIP. EPA's inclusion of control measures for PM-10 taken from the approved carbon monoxide and ozone SIPs did not violate the APA because adequate notice was given that these control measures would also reduce PM-10 emissions. On remand, the court directed EPA to provide for an opportunity for public comment on the post-comment period justification for rejecting control measures, and on the demonstration of "reasonable further progress."

2. United States v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996), cert. denied, 117 S.Ct. 944 (1997).

The United States brought an action against Trident Seafoods Corporation (Trident) for violating the asbestos abatement requirements of the Clean Air Act (CAA). Trident had made an offer of judgment before trial, which the government rejected. This offer of judgment exceeded the final judgment, so Trident moved for an award of attorneys' fees and cOStS pursuant to Federal Rule of Civil Procedure 68 (Rule 68). The district court granted Trident an award of costs, but denied an award of attorneys' fees. Trident appealed the denial of fees, and the government cross-appealed the award of costs. The Ninth Circuit affirmed.

In May 1988, Trident purchased and began renovating an abandoned fish cannery in Anacortes, Washington. Trident's general contractor hired an uncertified subcontractor to remove asbestos from the cannery. The Northwest Air Pollution Control Authority (NWAPCA) learned about this. and sent an asbestos inspector to the facility. NWAPCA fined Trident $250 for failing to provide notice of the asbestos abatement. The Environmental Protection Agency (EPA) was informed of the violation and served Trident with a request for information in August 1989.

Nearly three years later, in April 1992, EPA referred the asbestos abatement matter to the United States Department of Justice (DOJ), which intended to file an action against Trident for violations of the CAA EPA alleged that Trident violated the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos, which provides for notice requirements and work practice standards for renovating a facility that contains asbestos. Settlement negotiations began, and Trident rejected the government's offer to settle the action for $346.886 because the average settlement for alleged NESHAP violations was at the time was less than $35,000.

In June 1992, the DOJ filed an action against Trident alleging one notice violation and four work practice violations of the asbestos NESHAP. In May 1993, Trident served the government with an offer of judgment pursuant to Rule 68. This offer included a civil penalty of $30,000 and a consent decree requiring Trident to take a number of asbestos control and abatement actions. The government rejected this offer and a subsequent offer that increased the civil penalty to $50,000. The district court granted summary judgment in the government's favor on the claim that Trident violated the NESHAP notice requirement.

At trial, Trident received a jury verdict in its favor on all four work practice violations. The district court assessed a $65,000 penalty for the notice violation, finding that the violation was continuous. Trident moved for attorneys' fees and costs pursuant to Rule 68, the Equal Access to Justice Act (EAJA),(2) and the CAA. The court denied the motion for attorneys' fees, but granted the motion for costs pursuant to the EAJA.

Trident appealed the $65,000 penalty and the Ninth Circuit reversed, holding that the notice violation was singular rather than continuous.(3) On remand, the district court imposed a penalty of $25,000, the statutory maximum for a single violation. Trident then appealed the denial of attorneys' fees and the government appealed the award of costs. In deciding this issue, the Ninth Circuit had to determine the interplay between Rule 68 and the CAA.

Pursuant to Rule 68, if a plaintiff rejects a defendant's offer of judgment, and the judgment finally obtained by the plaintiff is not more favorable than the offer, the plaintiff must pay the costs incurred by the defendant subsequent to the offer. Trident's offer of judgment exceeded the final judgment in this case, therefore Trident was entitled to "costs" which Rule 68 defines as all costs properly awardable under the relevant substantive statute, in this case the CAA The court, in determining the plain meaning of the CAA, found that Congress did not intend to award attorneys' fees unless the action was unreasonable.(4) The district court found that the action against Trident was reasonable.

In addressing an issue of first impression, the Ninth Circuit applied an abuse of discretion standard in reviewing this finding of reasonableness. In Pierce v. Underwood,(5) the Supreme Court stated that the question was whether the United State's position was "substantially justified." The Court emphasized that deference should be given to the district court to decide this issue, given its full knowledge of the facts and insights not conveyed by the record. The Ninth Circuit adopted this standard in reviewing section 7413(b) CAA determinations, finding abuse of discretion only if the district court bases its decision on an erroneous conclusion of law or on an irrational interpretation of the evidence. The court held that although the government's actions did not deserve commendation, the district court correctly concluded that the action had a reasonable basis in law and fact.

The district court awarded Trident statutory costs as the prevailing party pursuant to section 2412(a)(1) of the EAJA,6 which does not include attorneys' fees in its definition of "costs." On appeal the government argued that section 7413(b) of the CAA, awarding costs only if the action was unreasonable, preempted section 2412(a)(1). The Ninth Circuit found that the plain meaning of the two statutes did not clearly indicate whether the statutes provided alternative or mutually exclusive bases for cost awards. The court determined that the two statutes could be read harmoniously if they were interpreted to provide independent bases for the recovery of costs. Congress, in enacting section 7413(b), did not specifically preclude costs awarded under the previously enacted EAJA, it simply provided that costs may be awarded if the court finds that the action was unreasonable.

3. Western States Petroleum Ass'n v. EPA, 87 F.3d 280 (9th Cir. 1996).

Air pollutant emitters and trade associations in Washington petitioned for judicial review of the conditional approval by the Environmental Protection Agency (EPA) of Washington's air operating permit program pursuant to Title V of the Clean Air Act (CAA).' EPA conditioned final approval of Washington's program on the repeal of the exemption of insignificant emission units (IEUs) from Title V monitoring, reporting, and record-keeping requirements. Washington intervened in this case to defend its program. The Ninth Circuit held that EPA abused its discretion because its decision conflicted substantially with numerous EPA decisions in other states and localities.

Title V created a centralized permitting program administered by the states with EPA oversight. EPA promulgated regulations at 40 C.F.R. Part 70 which set forth the criteria for EPA approval of state permit programs. These regulations allow each state, subject to EPA approval, to exempt insignificant activities and emission levels from certain permit requirements in order to reduce the regulatory burden on emitters.(8) In November 1993, Washington submitted a proposed permit program to EPA including a number of IEUs, for example, emissions from roof vents and vehicle exhaust from repair shops. Washington's program exempted EUs from the permit application requirements(9) and the permit compliance requirements(10) of the regulations.

In November 1994, EPA rejected Washington's EU provisions, granting only interim approval of the permit program. For final approval, EPA required Washington to amend its IEU rules to disqualify any emission unit subject to federally enforceable applicable requirements. Petitioners filed a petition for review in January 1995, and Washington moved to intervene. The Ninth Circuit granted EPA's motion to vacate and remand the EU portion of EPA's decision, and the court retained jurisdiction over the matter. After remand, EPA issued a final decision in November 1995. While EPA allowed Washington to exempt EUs from the permit application requirements, it still disapproved of Washington's exemption of EUs from permit monitoring, reporting, and recordkeeping requirements.

The court reviewed this final agency decision pursuant to the CAA under the same "arbitrary, capricious, or abuse of discretion" standard as in the Administrative Procedure Act. The court stated that it must give deference to EPA's reasonable interpretation of its own regulations. However, if EPA abused its discretion by failing to follow its own prior standards, the court need not defer to EPA's anomalous interpretation. While EPA identified two Title V programs that applied permit requirements to IEUs, it had also approved the exemption of IEUs from permit requirements in at least eight other state and local programs.

EPA argued that the Washington decision was the first thorough, well-reasoned discussion of whether EUs may be exempted from permitting requirements. The Ninth Circuit recognized that EPA may have the power to adjust its policies and rulings in light of its experience, but stated that EPA may not depart, sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case. In this case, EPA failed to provide any explanation for its anomalous Washington decision. The fact that EPA issued at least eight convicting decisions both before and after the Washington decision refuted EPA's argument that the Washington decision marked a well-reasoned, lasting change of policy.

The Ninth Circuit reversed EPA's decision and remanded. Ordering EPA to grant full approval to Washington's Title V program. In a question of first impression, the court addressed whether a financially able, nongovernmental party having no more than its own economic interests at stake is entitled to attorneys' fees under section 307(f) of the CAA.(11) The petitioners attained sufficient success on the merits to be eligible for attorneys' fees. However, the court determined, based on the legislative history, that Congress had no intent to subsidize all CAA litigation for financially able parties who, out of their own economic interests, would have litigated anyway. Therefore, the court held the petitioners ineligible for a fee award.

B. Clean Water Act

1. Citizens for a Better Env't-California v. Union Oil Co. of California, 83 F.3d 1111 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997).

Citizens for a Better Environment (CBE) brought an action against Union Oil Co. (UNOCAL), claiming UNOCAL had violated Clean Water Act effluent standards and water quality standards. Because UNOCAL had previously made a settlement payment to the State Regional Board to avoid an enforcement action, UNOCAL argued that the citizen suit was precluded under section 309(g)(6)(A) of the Clean Water Act and should also be dismissed for failure to state a claim since the order issued under the settlement effectively extended their compliance deadlines. The Ninth Circuit held UNOCAL had not paid a "penalty," that the order was not issued pursuant to a state law comparable to section 309(g), and the order issued did not modify UNOCAL's permit Thus, the court did not bar the citizen suit.

UNOCAL, along with six other petroleum refineries in the Bay Area. filed a state suit seeking to set aside the orders imposing final selenium limits by the California Regional Water Quality Control Board (Board) on the ground that the Board's listing of the San Francisco Bay Area as impaired bodies of water violated the Clean Water Act The refineries and the Board reached a settlement in 1993 whereby the Board issued a cease and desist order (CDO), which extended the refineries' deadline for meeting the selenium limits from 1993 until 1998. In exchange the refineries dismissed their lawsuit and made a $2 million payment to the state, of which UNOCAL contributed $780,000. After this settlement, CBE filed suit against UNOCAL for violating effluent and water quality standards found in its National Pollution Discharge Elimination System (NPDES) permit. UNOCAL then moved to dismiss the action.

In order for UNOCAL's argument under section 309(g)(6)(A)(iii) to prevail, it had to prove 1) that the CDO issued by the Board was "a final order not subject to further review," 2) it had paid a "penalty," and 3) such penalty was 4assessed under [[subsection] 309(g)], or such comparable state law."(12) The court found that the $780,000 payment UNOCAL made was not a penalty, but a settlement payment made to avoid enforcement action by the Board. In its decision the court noted not only did the CDO refer to it as a payment and not a penalty, but also UNOCAL insisted on characterizing it as a payment to avoid any stigma in the public eye.

UNOCAL next argued that even though the CDO was issued under California Water Code (CWC) section 13301, which governs cease and desist orders, and not specifically under CWC section 13385, which gives the Board authority to impose civil penalties, that because section 13301 was in the "same statutory scheme" as section 13385 that a penalty was assessed under "comparable state law." The court rejected this reasoning which UNOCAL had taken from North & S. River Watershed Ass'n v. Scituate.(13) The court reasoned that this interpretation of 4comparable state law" would result in state administrative enforcement actions having a broader preclusive effect on citizen suits than EPA administrative actions and concluded that the penalty must be assessed under the specific provision of state law that is comparable to section 309(g) and not merely under the "same statutory scheme."

The court also concluded that section 309(g)(6)(A)(ii) did not apply because the Board's enforcement action had been concluded and, thus, the Board was no longer "diligently prosecuting an action" under comparable state law. UNOCAL's final argument was that the CDO issued by the Board effectively modified UNOCAL's NPDES permit to extend the compliance deadline for the selenium limit until 1998, and, thus! they were not in violation of an effluent standard that CBE could sue to enforce. The court explained that the extension of the compliance deadlines was similar to an exercise of prosecutorial discretion and that this did not suspend the limits of the NPDES permit The court also pointed out that there were regulations governing the modifications of NPDES permits, and these procedures were not followed. Therefore, the CDO did not modify the teens of UNOCAL's permit, and the court allowed CBE's suit to proceed.

2. General Atomics v. United States Nuclear Regulatory Comm'n, 75 F.8d 536 (9th Cir. 1996), infra part III.A.

3. Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.8d 514 (9th 1996), cert. dismissed, 117 S.Ct. 1027(1997).

Knee Deep Cattle Company ("Knee Deep") filed suit against Bindana after Bindana's numerous National Pollution Discharge Elimination System (NPDES) permit violations. The district court granted Bindana's motion to dismiss, having concluded that the previous on-going enforcement actions taken by the Oregon Department of Environmental Quality (DEQ) constituted diligent prosecution under comparable state laws, and thus, precluded Knee Deep's citizen suit The Ninth Circuit found that the citizen suit bar under section 309(g) of the Clean Water Act(14) did not apply and reversed the decision of the district court, thus allowing Knee Deep's suit to proceed.

Bindana's NPDES permit allowed it to discharge treated effluent into a nearby creek which ran between Bindana's property, an RV park and sewage treatment plant, and Knee Deep's property, a cattle and feeder operation. After Bindana failed to meet its permit requirements, DEQ issued a Notice of Noncompliance, followed by a Notice of Permit Violation and a Notice of Civil Penalty (NCP). DEQ required Bindana to submit a plan to bring the facility into compliance. The NCP required Bindana to pay a $1400 penalty for a specific violation resulting from the pumping of raw sewage into the creek. The following year, Bindana and DEQ reached a settlement agreement whereby DEQ issued a Stipulation and Final Order (SFO) that required a $175,000 to $200,000 upgrade of the sewage treatment plant and set interim discharge limits until completion of the upgrade. The SFO also set penalties for any violation of the interm limits, but did not assess any penalties for past violations. When Bindana failed to comply with the limits in the SFO, Knee Deep filed its complaint.

The issue the court decided was whether this on-going action by DEQ constituted diligent prosecution under a state law comparable to section 309(g) of the Clean Water Act. Citing Citizens for a Better Env't-California v. Union Oil Co. of California (UNOCAL),(15) the court noted that in a previously decided similar case it required not only that the comparable state law contain penalty provisions but also that a penalty have been assessed. The court recognized that it had decided UNOCAL over a year after the district court's decision, but still found UNOCAL controlling. The court noted that Oregon's administrative penalty section(16) was arguably comparable to the federal provision, but the SFO, as in UNOCAL, was not issued under the section of Oregon law that was comparable.(17) In fact, the SFO specifically provided that it did not assess any penalty for the past violations. Therefore, the Ninth Circuit held that DEQ's actions were not pursuant to state law comparable to section 309(g), and the citizen suit was therefore not precluded.

4. Natural Resources Defense Council v. California Dep't of Transp. (Caltrans), 96 F.3d 420 (9th Cir. 1996), infra part IV.

5. Northwest Envtl. Advocates v. City of Portland, 74 F.8d 945 (9th Cir. 1996), cert. denied, 116 S.Ct. 2550 (1996), infra part III.B.

C. National Environmental Policy Act

1. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996).

Bicycle Trails Council of Marin and several other nonprofit corporations representing cyclists' interests challenged National Park Service (NPS) regulations governing bicycle use on Park Service lands.(18) In the Golden Gate National Recreation Area (GGNRA), the new regulations resulted in a thirty-six percent decrease in trails open to bicycle use. The district court granted summary judgment for NPS, an agency located within the Department of the Interior. The Ninth Circuit affirmed the district court's grant of summary judgment and adopted the lower court's opinion. The Ninth Circuit held valid the new regulation which prohibited all bicycle use of off-road areas in national park units unless local park superintendents designated particular trails open to bicycle use. Amending this regulation did not require an environmental assessment (EA) or an environmental impact statement (EIS). Finally, the court held that the final trail plan for the GGNRA was valid.

At issue was NPS's change in policy toward bicycle use in the National Park System. Since the 1960s, NPS applied three management designations within the park system. In areas designated as "natural" or "historical," all trails were closed to bicycle use unless specifically designated as open. In "recreational" areas, the opposite assumption applied: trails were open to bicycle use unless specifically designated closed. Amendments to the National Park Service Organic Act (Organic Act)(19) in 1970 and 1978 made clear Congress's disapproval of this management strategy. NPS interpreted the amendments as requiring it to stop managing recreational areas under less protective rules than it was using in natural and historic areas. In 1987, NPS implemented new regulations prohibiting all bicycle use in off-road areas unless local park superintendents designated particular trails open. In 1992, NPS adopted a trail plan for the GGNRA establishing which trails were open to bicycles, resulting in a closure of about thirty-six percent of the trails to bicycle use.

Plaintiffs challenged the following two agency actions: the 1987 regulation which applied generally to all Park Service lands,(20) and the development of the 1992 trail plan for the Marin Headlands section of GGNRA.(21) The 1987 regulation changed park rules from "open unless designated closed to bicycle use" to "closed unless designated open to bicycle use" in all areas.(22) The court held that the statutory language and the legislative intent of the 1970 and 1978 amendments mandated that NPS stop managing recreation areas under less protective rules. Although the Organic Act is silent on the issue of bicycle trail access, an interpretation that the Act allows for the "closed unless designated open" approach for bicycle trail access is not contrary to the statute. The Secretary is directed to conserve the natural elements of the parks for the future and to make such rules as "he may deem necessary or proper for the use and management of the parks."(23) A park superintendent may designate routes for bicycle use only after a written determination that bicycle use is consistent with the protection of the park area's natural, scenic, and aesthetic values, safety considerations, and management objective, and that the bicycle use will not disturb wildlife or park resources.

Agency regulations will be upheld unless arbitrary, capricious, or contrary to the statute.(24) Plaintiffs claimed that the 1987 regulation was arbitrary and was not based on a permissible construction of the Organic Act. The district court held that NPS based its decision to eliminate management categories in the 1987 regulation on a permissible construction of the Organic Act, namely that recreational units could not receive less protective treatment; NPS had to manage all units of the park system with resource protection as the primary goal.

Relying on Motor Vehicle Manufacturers Assn. v. State Farm.(25) the plaintiffs argued that the 1987 regulation was invalid because NPS reversed its earlier position on bicycle use in recreation areas. They argued that NPS's new interpretation of the Organic Act as expressed in the 1987 regulation was entitled to less deference because NPS previously interpreted the Organic Act to reach an opposite conclusion regarding bicycle use, and that NPS did not provide a reasoned analysis to justify its change in position. However, the Ninth Circuit held that the State Farm analogy failed. In State Farm, an agency reversed its interpretation of an unamended statute. In contrast, NPS changed its position in response to Congressional amendments to the underlying act The court also held that this was not a case where the agency could be said to have changed its "policy." Finally, this case is distinguishable from State Farm because NPS provided the requisite analysis of its decision to amend the regulation.

The court also held that under the National Environmental Policy Act (NEPA)(26), NPS was not required to prepare an EA or EIS when it amended regulations pertaining to bicycle use in park recreational areas to prohibit all bicycle use of off-road areas unless local park superintendents designated particular trails to be open. The closing of off-road areas to bicycle use clearly falls within the categorical exclusion relied upon by NP--the rule could be reasonably expected to not increase public use to the extent of compromising the nature and character of area, to not introduce noncompatible uses, nor to affect adjacent landowners or land users.

The plaintiffs also challenged NPS's 1992 GGNRA trail plan.(27) NPS adopted the final plan only after a series of renew and comments on draft plans and numerous GGNRA Advisory Commission meetings. The process of deciding which trails should be open or closed to bicycle use took five years, and the plaintiffs were involved at every step of the development of the plan. The plaintiffs alleged that the agency action was arbitrary and capricious in violation of the Administrative Procedure Act (APA)28 and that NPS violated NEPA by failing to prepare an EIS.

NPS developed an EA considering four alternate trail plans, ranging from no trail access to nearly total trail access for the bicycles. A supplemental EA and finding of no significant impact were completed. NPS concluded that allowing bicycle use of trails as provided in the staff report is consistent with the protection of the natural, scenic, aesthetic values, safety considerations, and management objectives of the GGNRA. The report concluded that the plan was not a major federal action significantly affecting the quality of the human environment and did not require an EIS. In December 1992, NPS adopted the Final Trail Use Designation Plan.

The plaintiffs argued that the final plan as adopted was arbitrary and capricious, alleging that NPS failed to give sufficient consideration to recreation and that NPS had no rational basis on which to determine that resource protection would be served by closing trails to bicycle use. The court held that NPS had carefully considered recreation and all other relevant criteria; the final trail plan was based on a permissible interpretation of the relevant legislation; NPS reasonably relied on evidence showing that restricting mountain bike access would serve the goal of resource protection; and NPS reasonably relied upon evidence showing that prohibiting bicycle use of certain trails would reduce user conflict and enhance visitor safety.

Finally, the court held that the closing of certain trails to cyclists in the 1992 trail plan did not mandate an EIS under NEPA. NEPA does not require that an agency take into account every conceivable impact of its actions, including impacts on citizens' subjective experiences. Crowding cyclists onto fewer trails is not an environmental impact requiring an EIS.

2. City of Carmel-by-the-Sea v. United States Dept. of Transportation, 95 F.3d 892 (9th Cir. 1996), withdrawn,--F.3d--, No. 94-16284, 1997 WL 470105 (9th Cir. Aug. 19, 1997).

The U.S. Department of Transportation (Department) and the California Department of Transportation (Caltrans) proposed a project to relieve the traffic congestion on California State Highway 1. The project proposed to realign the highway system through Hatton Canyon to the city of Carmel-by-the-Sea (Carmel). Carmel and other environmental groups challenged the project because it was insufficient to meet the requirements of the National Environmental Policy Act (NEPA)(29) and the California Environmental Quality Act (CEQA).(30) The Ninth Circuit held that the Environmental Impact Statement/Report (EIS/R) did not adequately discuss the impacts on wetlands or reasonable alternatives. The court remanded the case for the district court to decide if the cumulative impacts analysis was adequate.

The first challenge by Carmel alleged that the EIS/R did not adequately discuss the effects on wetlands. The EIS/R, written in 1987, claimed that twelve acres of wetlands would be lost but mitigation would reduce the effects to almost no net loss of wetlands. Several reports by various agencies showed that the new wetlands had been created and some wetlands had moved due to an earthquake in 1989. Finding that the Department and Caltrans had relied on "stale scientific evidence" for its analysis of the wetlands, the Ninth Circuit required a reexamination of the EIS/R.

The court next looked at the proposed mitigation of wetlands by the agencies. While not ruling on the mitigation findings because it had already found that the EIS/R was inadequate in its analysis of the wetlands, the court did point out some problems with the mitigation. First, a letter from the Fish and Wildlife Service (USFWS) stated that Caltrans had bulldozed a wetland in 1984 and in 1986 without a permit. USFWS maintained that Caltrans should not be allowed to use its restoration of the bulldozed wetland as part of its mitigation Furthermore, the Corps of Engineers criticized the EIS/R's idea to use a drainage channel for highway runoff as part of its mitigation because it would be filled with pollutants and toxins. The agencies also proposed enhancing existing wetlands while not compensating for the loss of other wetlands. The court noted that this mitigation plan could cause problems. Since the mitigation was also based on stale scientific evidence, the court found that the EIS/R's mitigation analysis was inadequate.

The next challenge by Carmel was directed at the cumulative impacts analysis. The regulations of NEPA require agencies to analyze the cumulative impacts of a proposed project, which includes the impacts of "past, present, and reasonably foreseeable future actions."(31) The cumulative impacts analysis for the EIS/R was only slightly more than one page long. Carmel also argued that the EWR did not take a "hard look" at the project's impact on Hickman's onion, a plant noted as a likely candidate for listing under the Endangered Species Act.(32) The court pointed out that the EIS/R dUd calculate the percentage of onions that would be lost as a result of the project. The court adopted the Fifth Circuit's test for cumulative impacts analysis. The Fifth Circuit stated that an adequate cumulative impacts analysis would identify, 1) the area in which effects of the proposed project will be felt, 2) the impacts that are expected in the area from the proposed project, 3) other actions-past, proposed and reasonably foreseeable--that have had or are expected to have impacts in the same area, 4) the impacts or expected impacts from these other actions, and 5) the overall impact that can be expected if the individual impacts are allowed to accumulate.(33)

The Ninth Circuit found that the cumulative impacts analysis was insufficient under this test. The court remanded this question to the district court because the Ninth Circuit was unable to examine a part of the analysis that was in the Carmel Valley Master Plan EIS/R.

The court then turned to the alternatives analysis of the EIS/R. The regulations require that all agencies shall "[r]igorously explore and objectively evaluate all reasonable alternatives.(34) The court explained that there are six levels of service for traffic congestion. Level A is the best, allowing easy flow of traffic. Level F is the worst and has severe traffic jams. The agencies specified a number of alternatives that included widening the existing road to building a separate road through Hatton Creek each ranked from level of service C to level E. The Draft EIS/R purpose and need expounded a number of goals including improving capacity, safety, and air quality. However, the purpose and need of the Final EIS/R stated that a C35 level of service was the minimum acceptable level. Thus, the agencies changed the purpose and need but neglected to change the alternatives to meet this new purpose and need. The new purpose and need effectively eliminated all alternatives except for alternative 1C Modified, which would improve the traffic flow to level of service C. Alternative 1C Modified was the preferred alternative of the agencies. The court pointed out that merely changing the purpose and need of an EIS/R was not an abuse of discretion. However, the court held that where all the alternatives were formed to meet one purpose and need, and then statement of purpose and need is later changed to eliminate all alternatives except for one then there is an abuse of discretion. The Ninth Circuit accordingly held that the alternatives analysis was inadequate.

Carmel also challenged the analysis of the effects on the Monterey Pines. The court found that the EIS/R adequately considered the effects on the Monterey Pines. The EIS/R stated that twenty-one acres of Pines would be destroyed but the agencies would mitigate the loss by planting 20.3 acres of pines. The agencies acknowledged that the trees' seedlings might not survive. The court found that this analysis was adequate.

Finally, the court ruled on the issue of attorney's fees. A federal statute allows recovery of attorney's fees for the prevailing party if the United States was not substantially justified in its position.(36); The court found that Carmel was the prevailing party on the issues of wetlands mitigation, cumulative impacts analysis, and reasonable alternatives analysis. Furthermore, the court found that the agencies were not substantially justified because their position failed the reasonable person test. Accordingly, the court awarded attorney's fees to Carmel for the issues it prevailed on.

Judge Trott lodged a long dissent to the findings of the court on the issues of wetlands mitigation, cumulative impacts analysis, and reasonable alternatives analysis. He compared the task of trying to complete this project, which had been in the works for over fifty years, to the woes of Sisyphus in his never-ending quest to push the boulder up over the hiLL.

First, he attacked the holding on the alternatives analysis. He found that the statements of purpose and need in the Draft EIS/R and the FinaL EIS/R were not materially different. The agencies pointed out several times in the Draft EIS/R that they expected the level of service C to be a minimum, even though they never specifically mentioned it in the statement of purpose and need. Judge Trott found that anyone making comments was on notice of the minimum because of the statements in the Draft EIS/R. Therefore the statement of purpose and need in the FinaL EIS/ R was not materially different from the statements in the Draft EIS/R. If the alternatives analysis was adequate for the Draft EIS/R then it should also be adequate for the Final EIS/R.

Judge Trott also found fault with the majority's holding regarding wetlands mitigation. First, he argued that the EIS/R is only required to discuss mitigation; the agencies do not actually have to carry out the mitigation.(37) Furthermore, he found that the mitigation proposed was more than adequate.

Finally, Judge Trott found that the cumulative impacts analysis was adequate. He stated that the plaintiffs have the burden of showing that some impacts were not discussed. Carmel did not point out any other actions that would impact the project. Judge Trott aLso found that the impacts would be the same no matter what alternative was chosen. Thus, the alternatives analysis was adequate.

3. Inland Empire v. United States Forest Service, 88 F.3d 754 (9th Cir. 1996), cert. denied, Pacific Lumber Co. v. Marbled Murrelet, 117 S.Ct. 942 (1997).

In this case the Ninth Circuit held that the U.S. Forest Service's population viability analysis for seven "sensitive" species in an Environmental Impact Statement (EIS) complied with regulations implementing the National Forest Management Act (NFMA) and the cumulative impacts analysis required under the National Environmental Policy Act (NEPA).

In 1992, the U.S. Forest Service proposed eight timber sales in the Upper Sunday Creek Watershed in the Kootenai National Forest in northwest Montana Inland Empire and four other environmental groups sought to enjoin the saLes by chaLLenging the adequacy of the EIS the Forest Service had prepared for the timber saLes, portions of which would harvest old-growth habitat. Plaintiffs claimed that the EIS did not properly analyze population viability for seven sensitive species living in the sales area as NFMA requires, nor the cumulative impacts of the action as NEPA requires. The district court granted summary judgment for the Forest Service, reasoning that a reviewing court must defer to the agency's choice of scientific methods. Plaintiffs filed an expedited appeal The Ninth Circuit affirmed the decision of the district court and upheld the Forest Service's approach to population viability and cumulative effects analyses.

Plaintiffs claimed the EIS did not properly analyze the effects of the timber sales on the population viability of sensitive species living in the area Sensitive species are not endangered under the Endangered Species Act, but there is concern for the viability of their populations. Under regulations implementing the NFMA, the Forest Service has a duty to ensure viable species popuLations.(38) Plaintiffs argued that the regulation requires the Service to analyze the population size of each species, the population trends of each species, and the species members' ability to interact with other groups of the species living in neighboring areas. Instead, the Forest Service used three approaches to analyzing the viability of the sensitive species, none of which used the criteria set out by the plaintiffs.

The Ninth Circuit held that it must uphold the Forest Service's interpretation of its own regulations unless the interpretation was "arbitrary and capricious." According to the regulation, the Forest Service may discharge its duties through habitat management as long as "habitat [is] provided to support, at least, a minimum number of reproductive individuals and that habitat [is] well distributed so that those individuals can interact with others in the planning area"(39) An agency's interpretation is especially due deference where "questions of scientific methodology are involved." Although the court encouraged the thorough population viability analysis that the plaintiffs suggested, the court found that the regulation did not require such an analysis. Since the Forest Service's methodology was not plainly erroneous or inconsistent with the regulation, the Ninth Circuit upheld its approach to population viability. According to the court the Service's methodology reasonably ensures such populations by requiring that the decision area contain enough of the types of habitat essential for survival.

Plaintiffs also contended that the Forest Service did not comply with its duties regarding "management indicator species." Regulation 219.19 provides that the Service may select a "management indicator species" from the area as representative of the effect of management activities on species' population changes.(40) Of several species reliant on the old-growth area for habit, the Forest Service selected the pileated woodpecker as the indicator species. The Service found that the chosen alternative would result in a "slight downward population trend" in pileated woodpeckers as a result of the timber sales. The Ninth Circuit found that the Service did not act arbitrarily or capriciously when it estimated the effects of the alternatives on the population of the management indicator species by analyzing the amount of the species' habitat that each alternative would reduce.

Plaintiffs also alleged that the Service violated NEPA's "cumulative impacts" requirement because its viability analysis in the EIS only examined the effect of the timber sales on wildlife populations living within the Upper Sunday project boundaries, and did not consider the impact on species living adjacent to the area NEPA regulations state that an EIS must consider direct, indirect' and cumulative impacts of major federal actions.(41) Indirect effects result from population and land use changes and cumulative impacts result from the combined effects of past, present, and future actions.42 Plaintiffs argued that the EIS should have included the "indirect" and "cumulative" effects of the timber sales on animal populations adjacent to the Upper Sunday area" Plaintiffs contended that the Service should not have limited the scope of its population analysis to artificial project boundaries, but should have gone beyond to analyze the effects on the species' populations as part of an ecosystem. The district court again deferred to the Forest Service's methodology. The Ninth Circuit rejected plaintiffs' reading of these regulations and affirmed the district court, holding that the Service did not have to consider impacts of the sales on animal populations adjacent to, but outside, the project area

In rejecting plaintiff's arguments, the Ninth Circuit first noted that plaintiffs did not base their argument on the proper regulations. Most challenges to "cumulative" and "indirect" effects analysis contend that the EIS did not properly consider effects resulting from the proposed project in relation to the cumulative impacts of other actions. Here, the plaintiffs have no cumulative impacts argument; rather, they argue the geographic scope of the EIS is too small.

The Ninth Circuit found that adopting plaintiffs' position as a rule of law would be impractical. NEPA does not require the government to do the impractical. Under the plaintiffs' approach, an agency would have to analyze separately each species to determine the area covered by its ecosystem and then analyze population viability in that area--a potentially burdensome and impractical analytical task. The Ninth Circuit also supported the Forest Service's limitations on the scope of analysis of cumulative effects because of the difficulty of determining when land stops being "adjacent." Furthermore, the Service did not limit its analysis of cumulative effects to the artificial boundaries of the action area For four of the species, the Forest Service extended its analysis beyond the Upper Sunday area to include the entire watershed. The Ninth Circuit held that plaintiffs failed to meet their burden to provide the court with proof of why the Service's decision not to extend its analysis beyond the Watershed was arbitrary and capricious.

4. Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996), infra part II.A.

5. Ramsey v. Kantor, 96 F.8d 484 (9th Cir. 1996), infra part II.A.

6. Seattle Audubon Society v. Mosley, 80 F.8d 1401 (9th Cir. 1996).

This case consolidated three appeals challenging the decision by the Secretaries of Agriculture and Interior to approve a plan to manage federal land with spotted owl habitat in the Pacific Northwest. Three environmental groups--Native Forest Council, Forest Conservation Council, and Save the West--appealed the district court's grant of summary judgment upholding the U.S. Forest Service and Bureau of Land Management's (BLM) Record of Decision for Amendments to Forest Service and BLM Planning Documents Within Range of the Northern Spotted Owl (ROD), adopted April 13, 1994. The Ninth Circuit affirmed the judgment of the district court.

In April 1993, President Clinton established the Forest Ecosystem Management Assessment Team (FEMAT) to examine options and make recommendations to the Secretaries of Agriculture and Interior to aid their development of a forest management plan to preserve the habitat of the northern spotted owl on federal lands in the Pacific Northwest FEMAT analyzed forty-eight possible strategies, narrowed the field to ten alternatives, and assessed each in a single environmental impact statement (EIS) the Forest Service and BL-M prepared. The Secretaries of Agriculture and Interior adopted Alternative 9 on April 13, 1994.

The environmental plaintiffs contended that the federal defendants violated NEPA regulations by not considering a reasonable range of alternatives for managing old-growth owl habitat. The Ninth Circuit found that the federal defendants fully evaluated a reasonable range of alternatives before making their final decision. Agencies are not required to consider all possible alternatives, including alternatives unlikely to be implemented or alternatives which are not consistent with its basic policy objectives. Here, the agency did consider a no harvest alternative, but rejected it due to their mandate to manage the forests for multiple uses. Moreover, the federal defendants considered an alternative which would have protected all old-growth timber, which the court considered the sufficient equivalent of a no action alternative.

Plaintiffs contended that the federal defendants failed to comply with the viability regulation of the National Forest Management Act (NFMA) because the selected alternative provides for only an eighty percent likelihood that listed species will continue to be viable after implementation. They argued the resulting twenty percent likelihood of extinction is impermissible under the regulation. The court held the plaintiffs did not support their claim that the defendant's selected alternative violated the applicable viability standards. The Ninth Circuit, concurring with the district court, said that selection of other alternatives with a higher likelihood of viability would violate NFMA's mandate to create forest plans which "maintain diversity of plant and animal commentates to meet overall multiple-use objectives."(43) The defendants did consider viability of populations according to current scientific knowledge. The court concluded the defendants had reasonably interpreted and applied the viability regulations since they made no clear errors of judgment nor did they overlook any relevant information.

The environmental plaintiffs further contended that the district court erred in holding that the federal defendants considered adequately the cumulative environmental impacts associated with their preparation of the EIS and selection of Alternative 9. The court held this argument failed because the Supreme Court has reaffirmed the Ninth Circuit's long-held position that the Endangered Species Act protects listed species from habitat modification or destruction causing harm. The court concluded it was reasonable for the cumulative impact analysis to assume that nonfederal land would be managed to avoid harm to threatened species. Based on this analysis, the Ninth Circuit affirmed the judgment of the district court.

7. Sierra Club v. United States Forest Service, 93 F.3d 610 (9th Cir. 1996).

The Sierra Club challenged proposed salvage timber sales at the Warner Creek area of Oregon, alleging violations of the National Environmental Policy Act (NEPA). In 1991, Warner Creek burned in an arson fire. It was a habitat for the Northern Spotted Owl. The Forest Service desired to log the area in order to recover the spotted owl habitat.

Congress enacted section 2001(b) of the Rescissions Act of 1995 (Salvage Rider) after the Sierra Club brought this action. Section 20.01 (b) eliminates the need to follow NEPA for salvage timber sales.(44) The Salvage Rider applies to salvage timber sales "in preparation" when Congress enacted the Salvage Rider. The court found that a sale, which the Forest Service had not yet advertised, was "in preparation," thus the Salvage Rider applied and nullified the NEPA claim. The court also found that section 2001(k) of the Salvage Rider covered a sale which the Forest Service had advertised and offered, and rendered a challenge to that sale moot.

The court found that the enactment of the Salvage Rider nullified Sierra Club's challenge to the Warner Creek sale. The Salvage Rider applied to all salvage timber sales "in preparation" on the date of its enactment The Forest Service had not yet advertised part of the sale at Warner Creek at the time of the enactment. The court held that Congress used the word "prepare" in describing a series of steps to take for a sale. "Prepare" came before the word "advertise" several times in the Salvage Rider. The court reasoned that in using the word "prepare" to describe the stages of a salvage timber sale, Congress showed its intention that "preparation," "embody the activity necessary to reach the next stage--advertisement"(45) Thus the court reasoned that if the Forest Service had not yet advertised a sale, then it was "in preparation" and thus the Salvage Rider covered the sale, which consequently nullifies a NEPA challenge.

The second sale Sierra Club challenged the Forest Service had advertised and offered before the enactment of the Salvage Rider. All parties agreed that section 2001(b) did not apply. However, the court found that the Salvage Rider preempted any NEPA challenge. Section 2001(k) required that the Secretary release sales which the Forest Service offered before the enactment. The court stated that section 2001(k) mandated the release of these sales regardless of NEPA violations. Therefore the court was unable to grant any relief because the Forest Service offered the sale before the enactment of the Salvage Rider.

8. Swanson v. United States Forest Service, 87 F.3d 839 (9th Cir. 1996), infra part II.B.

II. NATURAL RESOURCES

A. Endangered Species Act

1. Inland Empire Public Lands Council v. Glickman. 88 F.3d 697 (9th Cir. 1996), infra part II. C.

2. Marbled Murrelet v. Babbit, 88 F.8d 1060 (9th Cir. 1996).

In Marbled Murrelet the Ninth Circuit affirmed the issuance of a permanent injunction to halt the logging of coastal old-growth forests which were the nesting ground of the marbled murrelet, an endangered species. The court held that the Endangered Species Act (ESA) allowed the issuance of a permanent injunction when a threat of future harm is "reasonably certain."

The Pacific Lumber Company (Pacific) desired to log an old-growth forest on the coast of California known as Owl Creek. However, there was evidence of marbled murrelets in the area Pacific recorded over one hundred murrelet citings. Despite repeated denials of a permit to log Owl Creek, Pacific proceeded to log part of the area The Environmental Protection Information Center (EPIC) brought suit to enjoin Pacific from continued logging of Owl Creek. The district court found that the proposed logging of Owl Creek would result in "harm" and illegal "takes" of marbled murrelets under the ESA. The court consequently enjoined the logging of Owl Creek. Pacific appealed and the Ninth Circuit affirmed the lower court decision.

Pacific argued that the ESA only allowed an injunction to be issued when there was evidence of past or present harm to a member of the species, not when there was only evidence of a threat of future harm. The Ninth Circuit rejected this argument, reasoning that the plain language showed that "harass" in the definition of "take" means "an intentional or negligent act or omission which creates the likelihood of injury to wild life."(46) Pacific argued that in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(47) the Supreme Court said that the amendments in 1981 to the ESA emphasized "that actual death or injury of a protected animal is necessary for a violation" and therefore the mere threat of injury did not constitute a violation of the ESA. The court rejected this argument on the basis that this wording was a note in the case, and that the Secretary inserted the "actual death or injury" requirement only to ensure that no one would read "harm" as only habitat modification. The court therefore held that evidence of a threat of future harm was sufficient for it to order an injunction.

Pacific next challenged the sufficiency of the evidence presented in support of the iq,unction against further logging by raising a "Daubert challenge"(48) against the evidence. The court, however, quickly dismissed this challenge reasoning that because Pacific failed to request a ruling on their objection to the evidence in the trial court, Pacific waived its right to raise the issue of admissibility on appeal. By not asking for a timely ruling on their objection Pacific waived its right to challenge the validity of the evidence even if the evidence was unreliable. The court reasoned that to allow Pacific to challenge the sufficiency of the evidence for the first time in the appellate court would give them an unfair advantage over the appellees. If the trial court had ruled on the objections then EPIC could have had the opportunity to lay a better foundation for its evidence. Therefore to let Pacific raise the challenge in the appellate court would deprive EPIC of its right to lay a better foundation for its evidence. Thus the Ninth Circuit held Pacific waived its right to appeal the sufficiency of the evidence.

Pacific then argued that impairing the breeding of the marbled murrelet was legally insufficient to qualify as "harm" under the ESA. Rather, Pacific argued, impaired breeding is "harm" to the whole population, and that the ESA required there to be harm to an actual member of the species. The court held that there was no basis for this argument. They pointed to the Sweet Home decision, which upheld the Secretary's definition of harm, which includes "significant modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(49) Therefore, the Ninth Circuit held that impaired breeding is "harm" under the ESA.

Finally, the court examined the sufficiency of the evidence to show future harm. The court noted that there were significant sitings of marbled murrelets by Pacific, and several experts testified that it was probable that Pacific's proposed activities would harm the marbled murrelets. Thus, the court found sufficient evidence to show the likelihood of future harm, and affirmed the lower court's decision to enjoin the logging.

3. Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996).

This is another chapter in the long conflict between a university's telescope and the endangered Mt. Graham Red Squirrel. In 1988, the University of Arizona desired to build a Large Binocular Telescope (LBT) in the area of Mt. Graham. The University was working with the United States Forest Service (USFS) and the United States Fish and Wildlife Service (USFWS) to comply with the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), when Congress intervened by enacting the Arizona-Idaho Conservation Act (AICA). AICA directed the Secretary of Agriculture to approve one FS alternative, known as RPA 3.(50) The Act further specified that the portion of the project located in RPA 3 satisfied section 7 of the ESA and section 102(2)(c) of NEPA.(51) The University then decided that its preferred location for the LBT was peak 10,477, which the Forest Service designated as Alternative Site 2 (ALT 2). In an ensuing action, the district court decided that ALT 2 was not within the area RPA 3 covered and enjoined the University from building the telescope until it had met the requirements of the ESA and NEPA. The Ninth Circuit affirmed.(52) Congress then enacted a rider to the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRRA),(53) which said that AICA authorized ALT 2, effectively overriding the court's decision in Red Squirrel V.

In this case, the district court decided to dissolve its injunction because of the rider on the OCRRA. Dissolving the injunction meant that the construction could proceed without meeting the requirements of the ESA and NEPA. Mt. Graham Coalition appealed this order and obtained a temporary stay of the order. The Ninth Circuit denied the stay and affirmed the district court decision to dissolve the injunction.

Mt. Graham challenged the rider on the grounds that it violated separation of powers because the rider "impermissibly overturned the final judgment of an Article m court." The court rejected this claim because the rider did not seek to overturn the court's ruling and it did not "revive a dead claim." Rather, Congress enacted an act that had present and future effect. The court supported its holding that there was no violation of the separation of powers by pointing to an earlier Supreme Court case to show that Congress has the ability to alter the future effect of injunctions entered by article m courts.(54)

Mt. Graham also claimed that the rider was constitutionally suspect because it targeted a single controversy. The court reasoned that particularity of legislation does not by itself render a statute or legislation as suspect. Therefore the Ninth Circuit held the rider was not unconstitutional because of its particularity.

4. Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996), infra part III. C.

5. Northwest Forest Resource Council v. Pilchuck Audubon Soc'y, 97 F.3d 1161 (9th Cir. 1996), infra part III.C.

6. Oregon Natural Resources Council Inc. v. Kantor, 99 F.3d 334 (9th Cir. 1996).

On October 20, 1993, Oregon Natural Resources Council (ONRC) and several environmental groups filed a petition with the Secretary of Commerce to list coho salmon as endangered or threatened under the Endangered Species Act of 1973 (ESA)(55) throughout its range in Washington, Oregon, and California The Secretary published his determination that listing "may be warranted" on January 26, 1994, approximately three months after the one-year statutory deadline to publish proposed regulations had expired.(56) On June 1, 1995, ONRC filed a complaint against the Secretary for injunctive and declaratory relief, claiming that the Secretary had missed the deadline of October 20, 1994, (one year from the date of filing the petition) to publish the proposed regulation.

In July of 1995, the Secretary proposed listing the coho salmon as threatened in Oregon and California, but not in Washington. The Secretary moved to dismiss ONRC's complaint, alleging that the proposed regulations had mooted the claim. The district court granted the motion to dismiss, but allowed ONRC to amend their complaint. ONRC did so, alleging that the Secretary had until October 20, 1995 (twenty-four months from the filing of the original petition) to publish the final regulations. On October 11, 1995, both the Secretary and ONRC filed for summary judgment. The district court held that although the Secretary had violated the ESA by failing to publish proposed regulations within a year of the citizen petition, the final regulations did not have to be published until one year after the proposed regulations were actually published, not a year after the statutory date of publication. The district court also retained jurisdiction over the case in the event that the regulations were not published by the requisite date.

Because the district court did not dispose of all the claims in the case, it was not a final appealable order. However, the Ninth Circuit used the analysis in Carson v. American Brands(57) to determine whether the district court's determination would be appealable. The Ninth Circuit decided that the decision was appealable because the decision had the practical effect of entering or refusing an injunction, the issue had the potential for "serious, perhaps irreparable, consequences," and immediate appeal was the only way to challenge the order.(58)

The other issue in the case was to determine when the final regulations were to be published. The court found that the ESA explicitly states that final regulations are to be promulgated one year after the proposed regulations. Although the initial delay from the time of the citizen petition to the publication of the proposed regulations was unfortunate, the court concluded that the ESA mandates only that final regulations be published a year after the proposed listing. This time period is necessary in order for agency determinations to be based on the "best scientific and commercial data available."(59)

7. Oregon Natural Resources Council Inc. v. Thomas, 92 F.3d 792 (9th Cir. 1996), infra part III. C.

8. Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996).

This suit, brought primarily by aluminum companies against several defendants including the Secretary of Commerce and the states of Alaska Washington, and Oregon, challenges state-permitted salmon harvests off the Northwest coast of the United States and within the Columbia River. The Ninth Circuit's decision explores the nexus between the National Environmental Policy Act of 1969 (NEPA)(60) and the Endangered Species Act of 1973 (ESA)(61), a matter which is of particular concern in the Northwest due to the substantial number of major federal dams which adversely affect threatened and endangered species of Pacific salmon.

On May 28, 1993, the National Marine Fisheries Service (NMFS) issued a biological opinion and incidental take statement governing the permissible incidental take of salmon under the ESA in the areas involved in this dispute. The aluminum companies, who depend on inexpensive hydroelectric power for their manufacturing processes, wanted to ensure a reduction in the number of fish kills by commercial salmon harvesters so that more fish could be taken in connection with the diversion of water to hydroelectric plants.

The aluminum companies raised several issues under NEPA and the ESA related to the incidental take permits issued by states under section 7 of the ESA.(62) Specifically, the aluminum companies argued that issuance of an incidental take permit is a major federal action triggering NEPA analysis and that section 7 permits are available only to the five agencies cited on the cover of the NMFS biological opinion. They then argued that the defendants should be subject to the more rigorous section 1063 procedure reserved for private parties.

The district court ruled that NEPA does not apply to incidental take statements under the ESA or to fish management plans, and that states do not have to obtain ESA section 10 private party permits before promulgating salmon fishing regulations. On appeal by the aluminum companies the Ninth Circuit conducted a detailed analysis of NEPA, the ESA, and the Columbia River Fish Management Plan(64) to determine the role of states and federal agencies in the permitting process.

The court first addressed the appellant's allegation that in addition to a section 7 biological assessment required under the ESA for actions potentially affecting endangered species, the states were required to apply for section 10 permits as well. In the court's view, this argument had little merit. The biological opinion and the subsequent incidental take statement prepared by NMFS thoroughly delineated the scope of activities being evaluated, including fishing in the Columbia River region. The statement authorized implementation of the Columbia River Fish Management Plan's ocean/in-river agreement within harvest limits. Because Washington's and Oregon's actions were contemplated by these statements, the court concluded that the section 7 studies were sufficient under the ESA.

The court fumed next to the appellants' NEPA claim to determine whether the actions at issue in this controversy constituted "major Federal actions" within the meaning of the Act.(65) The district court concluded that in-river harvests do not constitute major federal actions because they do not entail sufficient federal involvement. The Ninth Circuit rejected this conclusion. According to the Ninth Circuit, the grant of a federal permit, a prerequisite for projects adversely affecting the environment, is a major federal action under NEPA. The appellees acknowledged this fact, but argued that biological opinions and incidental take statements are not permits. The court dismissed the appellees argument, however, concluding that biological opinions and statements are to be considered functionally equivalent to permits because, without them, the activity in question would be prohibited.

Federal regulations require an agency undertaking a major federal action to prepare an Environmental Assessment (EA) in order to determine whether the environmental impact are so significant that they warrant a more detailed study.(66) Appellees argued that preparation of an EA was not necessary in light of the biological assessment (BA) they had already conducted. The court was not convinced, however, and held that BAs are not adequate substitutes for EAs. The court cited a previous opinion which explained that, "[w]hile a BA analyzes the impact of a proposed action upon endangered species, an EA analyzes the impact of the proposed action on all facets of the environment. Thus, if only a BA is prepared, there may be gaps in the agency's environmental analysis."(67) The Ninth Circuit concluded that, at a minimum, incidental take statements promulgated under the ESA require both a BA and an EA.

9. Seattle Audubon Society v. Mosley, 80 F.3d 1401 (9th Cir. 1996), supra part I.D.

10. Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1448 (9th Cir. 1996), infra part III.C.

B. Fish and Wildlife

1. Alliance Against IFQs v. Brown, 84 F.3d 343 (9th Cir. 1996), cert. denied, 117 S.Ct. 1467(1997).

Alliance Against IFQs (plaintiffs) filed suit to challenge federal regulations that the Secretary of Commerce promulgated under authority of the Magnuson Act.(68) The goal of the Act is to provide for fishery management plans that would ensure optimum yields from the fishery resources of the United States. The challenged regulations limited access to sablefish and halibut fisheries in the Gulf of Alaska, the Bering Sea, and areas surrounding the Aleutian Islands. The district court found that the regulations were not arbitrary and capricious, and that they did not violate the authorizing Act. The Ninth Circuit affirmed this decision, concluding that while some of the Secretary's decisions did push the "limits of reasonableness," they were not arbitrary and capricious.

The Secretary of Commerce promulgated regulations limiting access to sablefish and halibut fisheries as required by the Regional Fishery Management Council's management plan The management plan requires commercial fishing boats that received any regulated fish within the regulated waters near Alaska to carry an individual quota share permit on board. This permit specifies the individual fishing quota allowed for that particular boat. The plan also requires the regional director of the National Marine Fisheries Service (NMFS) to assign a quota share (QS) to each owner or lessee of a vessel that made legal landings of halibut or sablefish during 1988, 1989, or 1990. This QS is based on each individual's highest total legal landing of halibut and sablefish during 1984 to 1990. The NMFS regional director multiplies each vessel's QS by the annual allowable catch and then allocates individual fish quotas (IFQs). These can be freely transferred, sold or leased. Most importantly, individuals who did not receive a QS because they did not fish in the regulated waters during the period from 1988 to 1990, must purchase one from someone who did in order to fish these waters.

The plaintiffs challenged these regulations on several grounds. First, they contended that the regulations violate that part of the Magnuson Act which requires the Secretary of Commerce and the Council to take into account "present participation in the fishery" when preparing the management plan.(69) The plaintiffs based their argument on the fact that the final regulation was promulgated in November of 1993, yet the years during which people were required to own or lease vessels and capture the regulated fish in order to obtain qualifying shares were 1988 to 1990. The Secretary offered an explanation, which the court accepted, as to why the qualifying period ended in 1990. According to the Secretary, allowing participation in the fishery while the regulation was being promulgated would not only induce additional fishermen to enter the fishery, but would also entice existing fishermen to adopt extreme fishing methods to increase their quota share. This phenomenon would only exacerbate the overcapitalization problem which the regulations were intended to mitigate.

However, this rationale did not explain the Secretary's violation of almost every time requirement established by the Act for issuing regulations. The establishes a timetable for each step in the rule making process, which includes publishing Federal Register notice of the proposed regulations, allowing sixty days to comment, and promulgation of a final rule within 110 days. The Secretary failed to meet every one of these time restrictions. The plaintiffs argued that these violations bolstered their contention that the Secretary did not take into account "present participation in the fishery."(70) The court noted that because Congress did not define "present participation," it intended to leave the Secretary room for discretion. It also noted that the Secretary began work on the plan in 1990. The process of public review and environmental impact review was lengthy, as it typically is, and contributed to the late promulgation of the rule. Accordingly, the Ninth Circuit held that, although the three-year delay "pushed the limits of reasonableness," it was not so excessive as to constitute arbitrary and capricious agency action.

The plaintiffs' second major argument was that by limiting the allocation of shares to only vessel owners and lessees, the Secretary violated the statutory requirement that allocation of quota shares be "fair and equitable to all such fishermen."(71) The plaintiffs pointed out that a crew member is just as much a fisherman as a vessel owner. In response, the Council and the Secretary argued that equity favored allocation shares to those people who had invested in boats, the owners and lessees, over individual fishermen. Further, the federal defendants stressed the relative ease of administering a per-vessel allotment. The Ninth Circuit found these arguments consistent with statutory standards and allowed the Secretary to sacrifice the interests of some groups in order to benefit the fishery as a whole.

The plaintiffs next argued that it was inappropriate to include Bellingham, Washington on the list of ports from which fishermen could unload and transfer fish. The plaintiffs were concerned that, once the boats left Alaska, they might illegally sell the fish before they arrived at a non-Alaskan port.

The Secretary added Bellingham to the list of ports for two reasons. First, the Ports Preference Clause of the United States Constitution provides that no preference shall be given to the ports of one state over another.(72) By including a non-Alaskan port, the Secretary hoped to avoid possible litigation over the constitutionality of the regulations. Second. Bellingham has a rich history in the trade of Alaskan halibut and sablefish. The court found that the Secretary's decision to add Bellingham to the list of ports was within the agency's discretion.

The plaintiffs also contended that the Secretary did not have the authority to add Bellingham to the Management Plan without approval of the Council. The Act allows the Secretary to amend the regulations freely, but does not give the Secretary this same power over the Management Plan. The court held that designation of the primary ports was a concern the Secretary could properly control through implementing regulations. Therefore, the Ninth Circuit concluded that they need not decide whether the Secretary had the authority to change the Management Plan and that the Secretary's decision to add Bellingham was not arbitrary and capricious.

Finally, the plaintiffs argued that the Secretary violated a provision of the Magnuson Act which prohibits any action under a fisheries management plan that extends or diminishes the authority of any state within the boundaries of the plan. They contended that the Secretary violated this provision by failing to give notice and to hold a preemptive hearing before asserting jurisdiction over Alaskan waters. The court concluded that the Secretary's actions did not constitute "an invasion of a legally protectable interest" of the fishermen.(73) Thus, the court held that the fishermen had no standing to enforce this statutory right themselves.

2. Aluminum Co. of Am. v. National Marine Fisheries Serv., 92 F.3d 902 (9th Cir. 1996), infra part III.D.

3. Inland Empire v. United States Forest Serv., 88 F.3d 754 (9th Cir. 1996), cert. denied, Pacific Lumber Co. v. Marbled Murrelet, 117 S. Ct. 942 (1997), supra part I.C.

4. Marbled Murrelet v. Babbit, 83 F.3d 1060 (9th Cir.1996), infra part II.A.

5. Oregon Natural Resources Council, Inc. v. Kantor, 99 F.3d 334 (9th Cir. 1996), infra part II.A.

6. Southwest Ctr. for Biological Diversity v. United States Forest Serv.. 100 F.3d 1443 (9th Cir. 1996), infra part III.C.

7. Swanson v. United States Forest Service, 87 F.3d 339 (9th Cir. 1996).

John Swanson, the Idaho Sportsmen's Coalition (ISC), and several environmental organizations brought suit challenging the United States Forest Service's decision to authorize timber sales and concurrent road construction in the Cove and Mallard drainages of the Nez Perce National Forest in Idaho County, Idaho. ISC alleged that the Forest Service violated the National Environmental Policy Act (NEPA),(74) the National Forest Management Act (NFMA),(75) and the Clean Water Act (CWA)(76) in its formulation of these sales. When the district court dismissed the CWA claims and granted summary judgment in favor of the Forest Service on the remaining claims, ISC appealed. The Ninth Circuit affirmed the district court's decision, indicating that the Forest Service took the requisite "hard look"(77) at the potential environmental impacts of these sales as required under NEPA.

Before authorizing the sales, the Forest Service prepared biological assessments (BAs) which considered the effects of logging on area species. The BAs included consideration of the Snake River chinook salmon, which was then considered a sensitive species. After the sales were awarded in September of 1991, however, the National Marine Fisheries Service (NMFS) determined that the Snake River chinook was in fact a threatened species and that they would be listed as such effective May 22, 1992. At this time, the Nez Perce forest supervisor ordered an additional analysis of logging activities within the forest which could impact salmon habitat and NMFS ordered all national forests affected by the listing to reformat their BAs. The Forest Service complied, concluding that the Cove and Mallard sales would not jeopardize survival of the Snake River chinook.

ISC's complaint alleged specifically that the Forest Service's studies were deficient with respect to informational inaccuracies, inadequate monitoring of animal populations, limited biological diversity analyses, and noncompliance with state water quality standards. The district court dismissed the water quality claim because of ISC's failure to give notice to the Environmental Protection Agency (EPA) of their intent to sue as required by the CWA. In the alternative, ISC argued that the water quality claim was brought pursuant to the Administrative Procedures Act (APA) which does not require notice to EPA. Because they did not so indicate in their brief, however, the court dismissed that claim as well and entered summary judgment against ISC on the remaining claims.

On appeal, the Ninth Circuit reviewed the grant of summary judgment de novo to determine if the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as required by the APA.(78) Concerning the NEPA claims, the court reiterated NEPA's procedural premise, stating that it requires neither that the agency take action to mitigate environmentally detrimental actions nor that an EIS include explanations of prospective agency mitigation measures. The court deemed the Forest Service's analysis procedurally sufficient under NEPA.

ISC also maintained that the listing of the Snake River chinook as threatened constitutes a "new circumstance" which requires a Supplementary Environmental Impact Statement under NEPA.(79) The court dismissed this argument summarily; in its estimation, the new listing changed "the legal status of the salmon, but it did not change the biological status."(80)

As for the NFMA claims of deficient monitoring of area species, the court indicated that the prepared Forest Plan contained adequate analyses. The court found that the Plan required elk summer habitat analyses, watershed monitoring, threatened and endangered species surveys, fish and water quality monitoring as well as the observation of fish habitat trends, population trends of fish and wildlife species, and analyses of impacts of proposed activities on soil and water quality. In a decision that was perhaps strengthened by the court's displeasure with ISC's late filing of a motion to amend and its attempt to file an overlength brief, the Ninth Circuit upheld the Forest Service's actions with customary deference to the agency.

C. Forests

1. Idaho Conservation League v. Thomas, 91 F.3d 1845 (9th Cir. 1996).

The Idaho Conservation League (JCL) and the Wilderness Society brought this action against Jack Ward Thomas, Chief of the United States Forest Service, seeking an injunction preventing the Thunderbolt timber salvage sale, located in the South Fork Salmon River (SFSR) in central Idaho, from proceeding. Reviewing the Forest Service's record of decision under the arbitrary and capricious standard mandated by the Rescissions Act of 1995,(81) the district court granted summary judgment in favor of Thomas. On appeal, the Ninth Circuit affirmed this decision.

Before the Forest Service proposed the Thunderbolt timber salvage sale in 1994, the SFSR had suffered severe erosion and stream sedimentation due to activities such as mining and logging. Consequently, in the late 1980s, the Forest Service, along with several other groups including scientists, timber industry officials, and Indian tribes, developed a set of management guidelines. These guidelines prohibit any new, major. land-disturbing actions until the environmental health of the SFSR improves. In addition, EPA has designated the SFSR as water quality limited and has set Total Maximum Daily Loads (TMDLs) to limit sediment discharges into the river.

In 1994, numerous wildfires affected the SFSR drainage, burning over 150,000 acres. The magnitude and extent of these fires were significantly greater than those expected by the Forest Service. In response, the Service proposed the Thunderbolt Wildfire Recovery Project. The Thunderbolt timber salvage sale was part of this plan and was intended to be a means of financing ecosystem restoration and sediment reduction projects.

In March 1995, the Service issued its Draft Environmental Impact Statement (DEIS). In response, various state and federal agencies opposed the proposed salvage sale. These agencies viewed the environmental risks of the salvage logging as too great to accept the project as a means of financing the restoration projects. Their concern was that the salvage action would generate a tremendous amount of additional sediment in the SFSR watershed, thus contributing to current problems.

The Forest Service responded to each of the agencies' concerns and then accepted recommendations from its own panel of experts. The Service's experts also disapproved of the plan and proposed numerous changes. The Service incorporated these changes into the Final Environmental Impact Statement (FEIS) which they released in September, 1995. In October, the Service indicated its intent to proceed with the Thunderbolt sale in a Record of Decision (ROD). Fifteen days after the Service advertised the sale, ICL filed its action. Within forty-five days, the district court denied JCL's motion for summary judgment and instead granted summary judgment in favor of the Forest Service. On appeal, ICL argued that the Thunderbolt sale was arbitrary and capricious because of the overwhelming expert agency opposition and because the sale could not meet its goal of raising money for restoration projects.

The Rescission Act allows only limited judicial review, and the Forest Service's actions are judged by the arbitrary and capricious standard. First, the court found that even though there were numerous opposing views from the commenting agencies, the Service was allowed to disagree and rely only on its own expert panel. Second, because the 1994 wildfires resulted in a changed condition not anticipated when the forest plans were completed, the Service's decision to alter its management plan was not arbitrary and capricious. Third, the court was convinced by the Service's evidence that the revenues from the Salvage Sale and the financing evidenced by the ROD would enable the Service to fund the restoration projects. Therefore, the Ninth Circuit agreed with the district court that the Forest Service did not act arbitrarily and capriciously.

ICL also argued that, because the Secretary of Agriculture had no role in deciding whether to proceed with the sale, the Forest Service violated section 2001(c)(1)(A) of the Rescissions Act.(82) The Ninth Circuit responded by pointing out that it had previously held section 2001(c)(1)(A) does not require the Secretary of Agriculture to personally authorize salvage timber sales. Thus, the plaintiff's second argument failed.

Finally, the Ninth Circuit found that the district court did not abuse its discretion by excluding from consideration certain extra-record materials, including a declaration by JCL's expert, Cindy Williams, because they were not sent or released to the Forest Service. Thus, the Ninth Circuit affirmed the district court's grant of summary judgment in favor of Thomas.

2. Idaho Sporting Congress, Inc. v. United States Forest Serv., 92 F.3d 922 (9th Cir. 1996).

Seeking declaratory and injunctive relief, the Idaho Sporting Congress (ISC) filed an action challenging three forest recovery projects and seven associated salvage timber sales. ICS charged the United States Forest Service (Forest Service) with violations of the Recissions Act of 1995,(83) section 705 of the Administrative Procedures Act (APA),(84) a presidential directive regarding the Recisions Act, and the public trust doctrine. The district court dismissed a number of the claims based on lack of ripeness, and granted summary judgment for the Forest Service on the remaining claims. The Ninth Circuit affirmed.

In 1994, a number of wildfires burned thousands of acres of forest in Idaho and Montana. In response, the Forest Service formed interdisciplinary scientific teams to make recommendations for remedying the ecological damage caused by the fires. These recommendations led the Forest Service to proceed with a series of forest recovery projects. The goals of each project included timber salvaging, reforestation, and improvement of water quality and fish habitat. ISC brought suit in district court challenging the Forest Service's decisions concerning three of these forest recovery projects and the associated salvage sales.

The district court held that the Rescissions Act (Act) precluded review of the sales under the APA, and only permitted review of those salvage timber sales challenged within fifteen days of initial Forest Service advertisement. Only two of the challenged sales met these requirements. For these sales, the district court concluded that the decisions of the Forest Service were not arbitrary or capricious, and therefore did not violate the Act. The court also found that the Forest Service had not violated its obligations under the Presidential directive nor the federal public trust doctrine.

The Ninth Circuit reviewed de novo the district court's dismissal of a number of claims and its grant of summary judgment in favor of the Forest Service. The Ninth Circuit held that the terms of the Act precluded review of the salvage timber sales under the APA. The APA allows judicial review of agency actions "for which there is no adequate remedy in the court."(85) Because the Act provided the remedy sought by ISC, the permanent injunction of all salvage timber sales, the court held that APA review was not available.

The Ninth Circuit agreed with the district court that five of the seven challenged sales were not ripe for review under the Act. Section 2001(f) of the Act provides that any challenge to a sale must be made within fifteen days after the date of initial advertisement of the sale. Four of the sales had not been advertised prior to ISC's complaint, and a fifth sale had been withdrawn. Therefore, only two sales, the Thunderbolt and Lower Elkhorn sales, were properly before the court.

ISC argued that the decisions of the Forest Service to proceed with the sales violated an interagency Memorandum of Agreement (MOA), issued as required by a Presidential directive, regarding implementation of the Act. In the MOA the parties agreed to comply with previously existing environmental laws, except where expressly prohibited by the Act. ISC argued that the directive and MOA had the force of interpretive law because of ambiguity in the Act regarding the applicability of substantive environmental laws. The Ninth Circuit relied on its decision in Inland Empire Public Lands Counsel v. Glickman(86) to dispose of this argument. In Inland Empire, the court held that the Act provides for extremely limited judicial review, review of salvage timber sales is limited to the administrative record only, the standard of review is arbitrary or capricious, and the sale is not subject to any federal environmental or natural resources laws.

ISC did not establish that the directive or MOA would provide any independent source of nonenvironmental law under which the court could review, subject to the holding of Inland Empire and the plain language of the Act, the salvage timber sales. In addition, the court found that ISC did not have standing to assert violations of the MOA. The court's lack of authority to review salvage timber sales under any other environmental laws precluded consideration of ISC's claim that the Forest Service breached its duty to protect the public resource trust.

The Ninth Circuit reviewed the administrative record of the Thunderbolt and Lower Elkhorn sales under the arbitrary and capricious standard. The court noted that the Act gave the Forest Service broad discretion to determine what information was to be considered in making a sale decision, and whether a decision complied with existing forest management plans and guidelines. While the record reflected disagreements in the recommendations of various consulted agencies, the court held that the Forest Service was entitled to rely on the recommendations of its own experts in making its decisions. The court found that the record sufficiently supported the decisions of the Forest Service to proceed with the Thunderbolt and Lower Elkhorn salvage timber sales.

3. Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697 (9th Cir. 1996).

In August 1994, fires in the Kootenai National Forest in Montana burned over 55,000 acres of forest. Under section 2001(a)(3) of the Salvage limber Act,(87) the Forest Service planned to conduct sales of about 36 million board feet of "salvage" timber. Inland filed an action in November 1995, asking for a permanent injunction stopping any Kootenai salvage timber sales. In December 1995, the district court granted summary judgment for the defendants. Environmental groups appealed the district court's grant of summary judgment in favor of the Forest Service and the United States Fish and Wildlife Service (USFWS). The Ninth Circuit affirmed the lower court's denial of Inland's motion for summary judgment, the grant of the defendants' cross-motion for summary judgment, the motion to dismiss, and the motion to strike extra-record materials.

Judicial review is limited under the Salvage Timber Act. Courts will enjoin salvage timber sales only if a review of the record shows that the decision to prepare a sale was arbitrary and capricious or otherwise not in accordance with applicable law. However, under subsection 2001 (i) of the Act, salvage timber sales are not subject to any federal environmental or natural resources law, such as NEPA or the Endangered Species Act

Plaintiffs argued that the Kootenai sales were arbitrary and capricious because the Forest Service's timber sale management strategy would not adequately protect a threatened species of grizzly bear listed under the Endangered Species Act. Inland cited several dangerous changes made to the plan that threatened the bears' habitat. However, a Biological Assessment prepared by the Forest Service concluded that the sales were not likely to adversely affect the grizzly bears. USFWS concurred, and the Forest Service awarded contracts for sales in December 1995. The Ninth Circuit held that under the Salvage Timber Act, "the Forest Service had discretion to disregard entirely the effect [of the sales] on the grizzly bear. Still, both the Forest Service and USFWS recognized Inland's concerns about the bear habitat and rationally explained its conclusion that the sales were "not likely to adversely affect the threatened grizzly bear." Therefore, the Forest Service's decision to conduct the timber sales could not be deemed arbitrary and capricious based on the degree of protection given to the grizzly bear.

Plaintiffs also argued that the Salvage Timber Act requires the Secretary of Agriculture (Secretary) to personally authorize every salvage timber sale because the Secretary has "sole discretion" to approve a sale under the Act. The Ninth Circuit held that the Secretary properly delegated his discretion to an Assistant Secretary, who delegated authority to the Chief of the Forest Service. Although the Salvage Timber Act does not explicitly mention delegation, the Ninth Circuit held that if Congress had intended to change the Secretary's typical delegation procedures, it would have explicitly done so. Therefore, the Secretary did not have to personally authorize every timber sale under the Act.

The Ninth Circuit also held that the lower court properly dismissed plaintiffs' claims that USFWS acted arbitrarily and capriciously in concurring with the sales because they lacked standing to bring this claim, plaintiffs, to establish standing, have to show that harm from the threatened action is "likely" and that injury will be redressed by a favorable decision.(88) Since the Forest Service could go ahead with the sales without USFWS's concurrence, Inland failed to show that a favorable decision, i.e., an order setting aside the USFWS concurrence, would redress plaintiffs' injury.

Finally, plaintiffs opposed the district court decision to strike extra record materials, including two expert opinions about grizzly bear survival and agency documents on grizzly bear management, upon which the Forest Service did not rely. The Salvage Timber Act limits judicial review to a review of the record.(89) The Ninth Circuit listed the four circumstances under which it allows the entry of extra record materials as follows: 1) when they are needed to decide "whether the agency has considered all relevant factors and has explained its decision," 2) when the agency has relied on documents not in the record, 3) when additional materials are needed to explain complex subject matter, and 4) when plaintiffs make a showing of bad faith by the agency. The Ninth Circuit held that none of these situations applied here. The Forest Service considered all relevant factors, but did not consider plaintiffs' materials. The record contained only those materials before the Forest Service at the time of its decision. Inland's materials were not necessary to explain complex subject matter. and Inland made no allegation of bad faith by USFWS or the Forest Service.

4. Marbled Murrelet v. Babbitt, 88 F.3d 1060 (9th Cir. 1996), infra part II.A.

5. Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996).

In this case the court consolidated two appeals arising from the same case. First, the court affirmed the district court's adoption of Northwest Forest Resource Council's (NFRC) interpretation of section 2001(k)(1) of the "Salvage Rider," that the "Secretaries of Agriculture and Interior were required to release all timber sale contracts offered or awarded between October 1, 1990 and July 27, 1995" in forests in Oregon and Washington. Second, the Ninth Circuit affirmed the district court's partial denial of intervention to Oregon Natural Resources Council (ONRC) and other environmental groups. ONRC was allowed to participate only as amicus curiae.

NFRC had challenged the secretary's interpretation of the "subject to section 318" wording in section 2001(k)(1) of the "Salvage Rider." Section 2001(k)(1) required the Secretaries to release, within forty-five days of the Act's enactment, "all timber sale contracts offered or awarded before [the Act's enactment] in any unit of the National Forest System or district of the Bureau of Land Management subject to section 318.(90) NFRC argued that "subject to section 318" defined the Act's geographic scope and was not temporal. This meant that the Act applied to all sales between October 1, 1990 and July 27, 1995, not only to sales during fiscal years 1989 and 1990. In opposition, the Secretaries argued that "subject to section 318" defined temporal and geographic scope, which meant that the Act could only release sales from 1989 and 1990. The court found for NFRC based upon their analysis of the plain language of the statute, their application of the canons of interpretation, and the legislative history.

The court first looked to the plain language of the section 2001(k)(1). This section defined its applicable time period as before the Act's enactment, which was July 27, 1995. The court reasoned that since section 2001(k)(1) used the word "all" to describe which timber sale contracts it applied to, then it applied to all sales during the applicable time period. which was before the Act was enacted. The geographical scope was defined as "any unit [of national forests or BLM lands] subject to section 318."(91) The court argued that by putting the "subject to section 318" wording after the geographical portion of the sentence, it indicated that it was intended to modify that part. The words define the geographic scope of the Act and not the temporal scope because the time period had already been defined. Thus the court concluded the Act was not limited by section 318's time limits but only by its geographic limits.

In further strengthening its argument the court turned to several canons of interpretation. First, the doctrine of the last antecedent says "where one phrase of a statute modifies another. The modifying phrase only applies to the phrase immediately preceding it." Since "subject to section 318" immediately follows "unit[s] of the National Forest System [and] district[s] of the Bureau of Land Management" then it modifies only this section, so it only applies to the geographic scope. Second, the court used the canon of ordinary meaning. "Subject to" means governed or affected by.(92) If the definition is injected into the wording of section 2001(k)(1) then it would say "governed or affected by section 318." Those geographic units governed or affected by section 318 were "the national forests of Oregon and Washington." Therefore, the court reasoned that the geographic units encompassed by the statute were subject to section 318. Finally, the court used the principle of giving effect to every statutory subsection. The court reasoned that if the Secretary's interpretation was correct, then the time period phrase of "offered or awarded before [the date of enactment of the 1995 Recissions Act]" would be superfluous because the "subject to section 318" clause would have specified the time period. Thus, the court held that NFRC's interpretation was the correct one.

The court next turned to the legislative history of section 2001(K)(1). A conference report stated that the "bill releases all timber sales which were offered for sale beginning in fiscal year 1990 to date of enactment...."(93) This legislative history, along with other House and Senate Reports, convinced the court that it had decided correctly.

The court then turned to the second issue in the case: whether or not ONRC should be allowed to intervene. In deciding this issue, the court considered several factors. In order to intervene as of right the prospective intervenor must have a "significantly protectable" interest ONRC claimed it had a right to intervene to keep entities from defying environmental laws. The court, however, held that section 2001(k)(1) did not defy environmental laws because it explicitly preempts them. In addition, the court held that ONRC was not "directly involved in the enactment of the law or in the administrative proceedings out of which the litigation arose." The court, therefore, found that ONRC had no "significantly protectable" interest.

Next the court looked to see if ONRC had a "significantly protectable" interest, and whether the Secretaries adequately protect that interest. The court agreed that ONRC's interests would be adequately protected because both ONRC and the Secretaries want the same narrow construction of the statute. Furthermore, the prospective intervenor bears the burden to show that the existing party could not adequately represent their interests. The Ninth Circuit held that ONRC did not meet this burden.

Finally, the court looked at the possibility of permissive intervention. The court uses an abuse of discretion standard in testing the district court's reasoning for allowing or disallowing permissive intervention. According to the court ONRC lacked independent grounds for jurisdiction, which are necessary for permissive intervention. Since the Ninth Circuit found that ONRC could not permissively intervene it concluded the district court did not abuse its discretion in not allowing ONRC to permissively intervene.

6. Northwest Forest Resource Council v. Pilchuck Audubon Soc'y, 97 F.3d 1161 (9th Cir. 1996).

In a consolidated appeal, timber harvesters and environmentalists separately challenged the validity and implementation of section 2001(k) of the Rescissions Act of 1995. Section 2001 (Salvage Rider) of the Act required the Secretaries of Agriculture and Interior (Secretaries) to expedite timber harvesting. Under section 2001(k) the Secretaries are required to release certain sales that were previously authorized by Congress in the Northwest Timber Compromise of 1989 (section 318).

Pilchuck argued that section 2001(k) was unconstitutional because it violated the separation of powers requirement of the Constitution. The appellants reasoned that through section 2001(k) Congress reopened timber sales that the federal courts had enjoined. Thus Congress impermissibly usurped the powers of the judiciary to enjoin actions. The court applied the test developed in Robertson v. Seattle.(94) Stating that separation of powers is violated where Congress directs findings in a pending litigation and has not changed the underlying law, the court found that section 2001(k) did not violate separation of powers.

The court next examined whether the statute excluded, enjoined, or canceled sales from the mandate to reopen previously authorized sales. Section 2001(k)(1) required the Secretaries to release "all timber sale contracts offered before" the enactment of the Salvage Rider. The court found that the plain language of the word "offered" meant any sale "where the bids are opened at the auction." Reasoning that bids were opened at the auctions before they were canceled or enjoined, the court held that the language of section 2001(k) did not exclude auctions that were canceled or enjoined.

In releasing the sales of the Northwest Timber Compromise of 1989, the Secretaries offered the sales to the previous high bidders. Some of these parties were unable or unwilling to act on the renewed offers. The timber harvesters claimed that section 2001(k) required the Secretaries to auction the sales to the other bidders at the previous auctions. The Ninth Circuit found that both the Forest Service(95) and the Bureau of Land Management (BLM)(96) had discretion to award or not to award a sale where the highest bidder could not take advantage of the sale. Section 2001(k) could only require the Secretaries to reopen the sales to other bidders if it pre-empted their regulatory authority. Since implied preemptions are not favored by the courts, the court reasoned that it must find an irreconcilable conflict between the two acts. Furthermore, the court stated it will only find an implied repeal if the "new statute is dearly repugnant, in words or purpose, to the old statute."(97) The court found that the statute did not specify who the award of timber contracts must be made to, and that the "notwithstanding" clause of section 2001(k) was not necessarily preemptive. Therefore, the court held that the regulatory authority of the Secretaries was not preempted.

The final challenge regarded the implementation of the section 2001(k)(2) mandate that no sale would be released if any threatened or endangered bird was "known to be nesting" in the sale unit area. Marbled murrelets in California, Oregon, and Washington had recently been listed under the Endangered Species Act as threatened. After consulting with the Fish and Wildlife Service, the Forest Service found that a significant portion of its sales under section 2001(k) included areas where marbled murrelets were known to be nesting. In order to determine that the murrelets were known to be nesting, the Forest Service used the Pacific Seabird Group (PSG) Protocol. The PSG Protocol used various types of evidence to show that marbled murrelets were known to be nesting, such as: detection of a nest or fecal rings; murrelets flying into and out of a canopy of trees; and murrelets circling around a specific section of the forest. The court found that the PSG Protocol was generally accepted scientific methodology.

The timber harvesters argued that a murrelet would only be known to be nesting if there was evidence such as fecal rings, eggshell fragments, or dead chicks in the area. The district court rejected both interpretations of "known to be nesting" and developed its own test. The Ninth Circuit found that section 2001(k) did not define "known to be nesting." Furthermore, the legislative history gave no guidance to help determine the issue. The court found that the term "known to be nesting" was ambiguous. Accordingly, the court found that the agency's definition should be deferred to unless it was an impermissible interpretation.(98) The court deferred to the Forest Service's interpretation, holding that it was not contrary to congressional intent.

7. Oregon Natural Resources Council v. Thomas, 92 F.3d 792 (9th Cir. 1996).

In an attempt to conform Northwest timber sales with federal environmental law, the Oregon Natural Resources Council (ONRC) appealed a district court decision which dismissed their challenge to timber sales in southwest Oregon. The sales at issue were within coverage of the Standards and Guidelines for Management of Habitat for Late-Successional and Old-growth Forest Related Species Within the Range of the Spotted Owl (Option 9). The Ninth Circuit's opinion in this case effectively extended the Rescissions Act(99) to all old-growth timber sales governed by Option 9, suspending all federal environmental laws on these lands regardless of whether the sales contain salvage timber.

ONRC claimed that the sales would reduce "viable populations of native aquatic and amphibious species" and "degrade . . . aquatic resources" in violation of the National Forest Management Act (NFMA).(100) Plaintiffs also alleged that the sales failed to comply with Option 9, which governs the area in issue. In addition, ONRC argued that the sales were arbitrary and capricious under the Administrative Procedures Act (APA)(101) because the Forest Service failed to obtain necessary information about the environmental effects of the sales.

The Ninth Circuit dismissed these arguments, concluding that section 1611 of the Rescissions Act renders sufficient under the environmental laws "whatever documents and procedures, if any, the agency elects to use for an Option 9 sale." This reasoning overlooks the ostensible purpose of the Rescissions Act, the salvage provision, and extends the suspension of environmental laws to all Option 9 old-growth forests in the Northwest. Thus, the court dismissed ONRC's claims under NFMA and Option 9.

Plaintiffs' alternative argument was that in the absence of federal environmental laws, the sales could be challenged under section 706(2)(a) of the APA as arbitrary and capricious. The court rejected this argument as well, stating that the APA is "merely a vehicle for carrying substantive challenges to court." Because environmental laws are suspended under the Rescissions Act, there is no independent body of law through which to bring the claim, so the decision to sell the timber was "committed to agency discretion" under section 702(a)(2) of the APA. ONRC argued that this analysis rendered meaningless section 1611(f)(1) of the Rescissions Act, which requires timber sales to be "subject to judicial review." The Ninth Circuit dismissed this argument by noting that while the sales are exempt from review as to environmental sufficiency, they can be challenged on labor, export, or non discrimination issues.

8. Rainsong v. Federal Energy Regulatory Comm'n, 106 F.3d 269 (1997), infra part II.D.

9. Seattle Audubon Soc'y v. Mosley, 80 F.3d 1401 (9th Cir. 1996), supra part I.D.

10. Sierra Club v. United States Forest Serv., 93 F.3d 610 (9th Cir. 1996), supra part I.D.

11. Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443 (9th Ctr. 1996).

The Southwest Center for Biological Diversity (Southwest Center) filed an action, seeking declaratory and injunctive relief, challenging a United States Forest Service (Forest Service) decision to proceed with a salvage timber sale. Southwest Center alleged that the Forest Service's decision was arbitrary and capricious and procedurally violated the Rescissions Act of 1995 (Act). The district court granted the Forest Service's motion for summary judgment, holding that there were no per se procedural violations of the Act and that the decision to proceed with the sale was not arbitrary or capricious. The district court also struck all documents submitted by the parties that were not part of the administrative record relied upon by the Forest Service. The Ninth Circuit affirmed.

For a proposed salvage timber sale, the Act requires the Forest Service to prepare a document that combines an environmental assessment under the National Environmental Policy Act (NEPA) and a biological evaluation under the Endangered Species Act (ESA).(102) Under the Act, the Forest Service has broad discretion to determine the scope of this document and its consistency with any applicable forest management plans or guidelines. After a 1994 forest fire damaged thousands of acres of the Coronado National Forest, the Forest Service proposed the Rustler Salvage Timber Sale (Rustler Sale) to salvage sixty-nine acres of timber. Pursuant to the Act the Forest Service prepared a document, titled a Biological Assessment and Evaluation (BA & E), which concluded that the proposed sale would have no effect on any endangered species, including the Mexican Spotted OwL This "no effect" conclusion conflicted with an internal United States Fish and Wildlife Service (USFWS) policy statement that agency actions within one mile of a Mexican Spotted Owl Protected Activity Center, or actions that alter mixed conifer or pine-oak forest habitats, may affect the owl.

There was no dispute that the Rustler Sale was within one mile of a Protected Activity Center, or that it would alter mixed conifer and pine-oak habitats. Despite these facts, the Forest Service determined that the sale would have no effect on the Mexican Spotted Owl, and issued a categorical exclusion for the sale. The Forest Service, pursuant to its regulations, is allowed to categorically exclude from NEPA requirements, absent extraordinary circumstances, sales of less than one million board feet and requiring less than a mile of road construction. The Rustler Sale met these requirements.

After the Forest Service published notice of the proposed sale, Southwest Center filed suit in district court alleging that the Forest Service violated the Act by failing to prepare a combined NEPA environmental assessment and ESA biological evaluation (EA/BE) for the sale. It also alleged that both the Forest Service's "no effect" finding and the categorical exclusion decision were arbitrary and capricious. The district court, confining its review to the document in the administrative record, granted the Forest Service's motion for summary judgment.

The Ninth Circuit, reviewing de novo the administrative record of decision, agreed with the district court that the BA & E and the categorical exclusion issued by the Forest Service met the requirements of the Act. The court noted the Forest Service's initial determination, that the Rustler Sale would have no effect on the Mexican Spotted Owl, obviated the need for formal consultation with USFWS pursuant to the ESA. Also, NEPA allowed for the issuance of categorical exclusions, a fact that Southwest Center did not contest Because section 1611(c)(1)(C) of the Act vested sole discretion in the Forest Service to determine the "scope and content of the documentation and information . . . relied upon" in making its decision, the court deferred to the Forest Service's permissible conclusion that a document other than a combined EA/BE would satisfy the requirements of the Act.

Southwest Center argued the Forest Service's conclusion that the sale would have no effect on the owl, in apparent conflict with USFWS's Mexican Spotted Owl Policy, was arbitrary and capricious.. The court disagreed, finding that the Forest Service had no obligation to consider the views of other agencies in approving sales of salvage timber pursuant to the Act. Emphasizing the deference owed to the Forest Service, despite any imperfections in its analysis, the court held that the "no effect" finding, and the categorical exclusion issued in reliance of that finding, were not arbitrary or capricious.

The Ninth Circuit reviewed the district court's decision to strike evidence not in the administrative record for an abuse of discretion. Southwest Center sought to submit a Forest Service memorandum, issued over a month after the Rustler Sale decision, delineating interagency consultation procedures to be followed in making a salvage timber sale decision. The Ninth Circuit, noting the few circumstances in which a court will consider extra-record evidence, found no abuse of discretion in striking the memo. The court also found no abuse of discretion in the district court's failure to consider additional maps and declarations of the sale's proximity to Mexican Spotted Owl habitat, finding that this information already existed in the administrative record.

D. Hydroelectric Power

1. Aluminum Co. of Am. v. National Marine Fisheries Serv., 92 F.3d 902 (9th Cir. 1996).

This is an appeal by the Aluminum Company of America from a grant of summary judgment in favor of the National Marine Fisheries Service (NMFS) under the Federal Advisory Committee Act (FACA). The Aluminum Company of America, a group composed of various producers of aluminum who rely on large quantities of electricity for their manufacturing processes, claim a right under the FACA to participate in advisory committee meetings concerning the protection of endangered Snake River salmon. The aluminum companies wish to influence possible decisions relating to dam modifications that may increase salmon survival and hence, effect electricity production on the several Snake River dams. The question of whether the aluminum companies should be allowed to participate in the meetings turns on whether the committees, largely composed of federal agencies, the Pacific Northwest states, and several Indian Tribes, were established and utilized by the federal government If they were, then the meetings would be governed by the FACA, which would mandate inclusion of interested parties in the proceeding.

The committees, the Biological Requirements Work Group (BRWG) and the Actions Work Group (AWG) were formed in the wake of the district court's judgment in related litigation, Idaho Dep't of Fish and Game v. National Marine Fisheries Serv.(103) In this case, NMFS was ordered to draft an acceptable 1994 1998 biological opinion concerning the continued survival of the Snake River salmon, and examine possible actions and alternatives, largely relating to hydropower operations, which may impact continued survival of the species. The BRWG was to assess technical data and recommend a "range of analytical methods for determining requirements for survival and recovery" of the listed salmon. The AWG was to provide a list of possible Federal Columbia River Power System actions and impacts. The aluminum companies attended several committee meetings and workshops, and were provided with summary reports of committee meetings and invited to comment on actions taken by the working groups.

The aluminum companies, in their desire to participate more fully in the proceedings, filed this action claiming that NMFS and the participants in the working groups had formed de facto advisory committees in violation of the FACA. The district court denied the companies' motion for a temporary restraining order and motion for reconsideration, as well as their motions to expedite and compel discovery. NMFS then filed a motion for summary judgment, which the aluminum companies answered with a cross-motion for summary judgment. The district court granted NMFS' motion, and the aluminum companies brought this appeal

The Ninth Circuit affirmed the district court's ruling, finding that the groups were not "established and utilized" by the federal government as defined by FACA. The court pointed out that the Supreme Court has cautioned against a literal adherence to a dictionary reading of the FACA's extremely broad definition of "advisory committee": the FACA was simply not "intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice."(104)

The Ninth Circuit found that the working groups at issue in this case were formed for the purpose of aiding compliance with the district court's order, which required NMFS to facilitate consideration of scientific evidence and to comply with the additional directives of the district court's order. Thus, the district court, which is not covered by the FACA, prompted the formation of these groups. In addition, the working groups were not funded by the federal government, and they were not subject to management by federal officials. In answer to appellants' contention that the committees were formed to render advice or recommendations to NMFS as a group, and not a collection of individuals, and are therefore covered by the FACA, the Ninth Circuit stated that the groups were more internally motivated or "designed to present the victorious entities' positions to their erstwhile opponents and to win approval of those positions in the future." In sum, the Ninth Circuit concluded that the NMFS did not inadvertently establish or utilize an advisory committee while following the demands of the Endangered Species Act and the district court.

2. Rainsong Co. v. Federal Energy Regulatory Comm'n, 106 F.3d 269 (9th Cir. 1997).

Rainsong, a private hydropower developer, applied for a license to build a small hydroelectric power plant on Lena Creek in the Olympic National Forest in Washington. The Federal Energy Regulatory Commission (FERC) denied the application based on its determination that the power plant would be inconsistent with the purposes of the federal reservation as set out in the 1990 Forest Resource Management Plan. Rainsong's project would consist of "a 10 foot high, 120 foot wide concrete dam . . . [requiring] a 2,300 foot long steel pipeline and a 1,500 foot long penstock . . . and other facilities." FERC decided that the construction would "impact the pre-construction scenic beauty" of the area and would interfere with the management plan's requirement that Lena Creek be preserved for "an experience mostly free from the sights and sounds of other people . . . in a Primitive or Semi-Primitive setting." Rainsong Co.(105)

Section 4(e) of the Federal Power Act (FPA)(106) provides that FERC may issue licenses "within any reservation only after a finding . . . that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired."(107) In 1986, Congress amended the FPA with the Electric Consumers Protection Act (ECPA) to ensure that FERC considers environmental factors in hydropower licensing. FERC interpreted the amended section 4(e) as requiring a two-step analysis. First, it would determine if the project was consistent with the purposes of the reservation. If so, the Commission then would move on to the second step required by the 1986 amendment balancing development and non-development factors in deciding whether or not to grant the license request

Rainsong, however, contended that the analysis involved only one integrated step: FERC was required to weigh the benefits of hydroelectric power against the dam's environmental impacts in making its initial licensing decision. The Ninth Circuit, deferring to FERC's interpretation of section 4(e) as requiring a two-step analysis, held that the plain meaning of the statute required a threshold determination of consistency with the purposes of a forest reservation before balancing developmental and nondevelopmental purposes in deciding whether to issue a license.

However, the Ninth Circuit held that FERC's reliance on the Forest Service's definition of the purpose of the reservation was an impermissible interpretation of its statutory mandate. Although the FPA does not tell the Commission how to determine "the purpose for which [a] reservation was created or acquired" in relying on the Forest Plan to make its determination of the purposes of the forest reservation, FERC interpreted not only section 4(e), but also the National Forest Management Act (NFMA).(108) The Ninth Circuit held that FERC must consider the statutorily prescribed purposes of the national forests in its section 4(e) consistency determinations. Although FERC may look to Forest Plans for the balancing portion of the statute, the plans are not determinative of the purposes of the forest reservation. In United States v. New Mexico,(109) the Supreme Court held that the only purposes for which national forests may be reserved are for "securing favorable conditions of water flows," and furnishing a "continuous supply of timber."(110) FERC was required to make a further inquiry into the purposes of reservation in that section 4(e) requires FERC to give "equal consideration to the purposes of energy conservation, the protection, mitigation of damages to, and enhancement of, fish and wildlife . . ., the protection of recreational opportunities, and the preservation of other aspects of environmental quality."(111) The Ninth Circuit remanded the license application to FERC, ordering the Commission to make an independent determination as to whether "the license will not interfere or be inconsistent with the purpose for which" Olympic National Forest "was created or acquired."

3. Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996), supra part II.A.

E. Water Quality

1. Citizens for a Better Env't-California v. Union Oil Co. of California, 83F.3d 1111 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997), supra part I.B.

2. Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996), cert. dismissed, 117 S.Ct; 1027 (1997), supra part I.B.

3. Northwest Envtl. Advocates v. City of Portland, 74 F.3d 945 (9th Cir. 1996), cert. denied, 116 S.Ct. 2550 (1996), infra part III.B.

III. LITIGATION ISSUES

A. Civil Procedure

1. Adkins v. Trans-Alaska Pipeline Liab. Fund, 101 F.3d 86 (9th Cir. 1996).

The Ninth Circuit upheld the district court's determination that appellants were properly denied compensation from the liens Alaska Pipeline Liability Fund (the Fund) for business losses allegedly resulting from the 1989 Exxon Valdez oil spill. The Fund, established in 1973 by the Trans Alaska Pipeline Authorization Act (the Act),(112) imposes strict liability for damages caused by Alaska crude oil spills transported through the liens Alaska pipeline and loaded onto vessels at pipeline terminals. Money for the fund comes from a tax on oil moving through the pipeline.

In 1990, the district court ordered that the Fund be used to reimburse losses caused by the Valdez oil spilL More than 29,000 claims were filed. Although the Fund instituted an expedited claims process, it repeatedly extended deadlines to submit documentation supporting those claims. Appellants argued that the Fund's expedited claims process violated due process because the Fund required claimants to submit information to the Fund within 30 days of the spill. However, the Ninth Circuit reiterated that under Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the court will defer to an administrative agency's procedures absent constitutional constraints or compelling circumstances. Given the number of pending claims, the court found that the procedure and deadlines adopted by the Fund were reasonable.

Appellant businesses also argued against the Fund's determinations that their losses were not proximately caused by the Valdez spill. Recovery under the Act is properly denied for damage not caused directly by the oil spill, but flowing from a series of intervening events triggered by the spill. The Fund denied all four appellants claims because the business losses suffered were too remote due to the presence of intervening causes, or were too remote geographically to qualify as "caused by the spill."

The Ninth Circuit upheld this decision. In deciding whether a loss was caused by the spill, the Fund may consider remoteness of time, place, and other factors. Because the determination of proximate cause is largely factual, judicial review is deferential The Fund's determinations were consistent with the Act's purpose that funds be used for "damages arising out of the physical effects of oil discharges . . . [not] remote and derivative damages."(113)

2. General Atomics v. United States Nuclear Regulatory Comm'n, 75 F.3d 536 (9th Cir. 1996).

General Atomics, the third-tier corporate parent of licensee Sequoyah Fuels Corporation, filed an action in district court, seeking declaratory and injunctive relief-against the Nuclear Regulatory Commission (NRC). General Atomics alleged that the NRC acted in excess of its statutory jurisdiction when it held that General Atomics was jointly and severally liable for cleanup of Sequoyah Fuel's facility when it ceased to operate. The district court dismissed the action for lack of subject matter jurisdiction, and alternatively, that the suit was premature because the NRC had not entered a final appealable order. The Ninth Circuit affirmed the district court's dismissal for lack of subject matter jurisdiction, and held that the Court of Appeals would not provide review until General Atomics exhausted its administrative remedies.

Sequoyah Fuels held a Source Materials License issued by the NRC for its facility in Gore, Oklahoma General Atomics was the third-tier parent of Sequoyah, but held no license for the facility. General Atomics was a NRC licensee for other unrelated facilities. General Atomics acquired Sequoyah Fuels from Kerr-McGee, who was obligated under a prior license to guarantee the proper decommissioning and reclamation of the facility. General Atomics had no similar obligation. The facility ceased operation in 1992, and in 1993 NRC issued an order holding General Atomics and Sequoyah Fuels jointly and severally liable for the cleanup of the facility. In addition, NRC required General Atomics to post bond assurances in the amount of $86 million.

NRC denied General Atomic's motion for summary disposition, reasoning that material issues of fact remained with respect to the NRC's jurisdiction. The bond assurance order was stayed pending the conclusion of hearings to determine whether NRC could exercise jurisdiction over General Atomics. General Atomics filed suit in district court seeking judgment that NRC acted in excess of the jurisdiction granted in the Atomic Energy Act. The district court dismissed for lack of subject matter jurisdiction because initial jurisdiction of the claim was vested in the courts of appeal under the Hobbs Act,(114) and alternatively, that there was no appealable order issued by NRC.

The Ninth Circuit agreed that it had initial jurisdiction of the claim pursuant to the Hobbs Act and the Supreme Court's holding in Florida Power & Light Co. v. Lorion.(115) In Lorion, the Supreme Court held that the Hobbs Act is to be read broadly to encompass all final NRC decisions that are preliminary or incidental to licensing.(116) The Ninth Circuit rejected General Atomics' argument that the Hobbs Act did not apply because General Atomics did not have a license. The goal of the NRC hearing was to determine whether General Atomics, in exercising control over Sequoyah Fuels, was a de facto licensee.

General Atomics also argued that if the district court did not have jurisdiction, it still had the obligation to transfer the action to the court of appeals for adjudication. The federal transfer statute states that "the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action could have been brought."(117) Because General Atomics had failed to exhaust its administrative remedies, the transferee court, the court of appeals, also lacked jurisdiction to hear the claim. The Ninth Circuit held that a transfer was not appropriate because the court must be able to hear the transferred suit for a transfer to be "in the interest of justice."

3. Public Util. Comm'n of State of Cal. v. Federal Energy Regulatory Comm'n, 100 F.3d 1451 (9th Cir. 1996).

On March 17, 1993, Mojave Pipeline, a natural gas company operating in California and Arizona, applied to the Federal Energy Regulatory Commission (FERC) for certification to construct its proposed "Northward Expansion," which would extend their existing system 290 miles northward to a point just southeast of Sacramento, California, and involve construction of 222 miles of high pressure extensions that would connect to the receipt facilities of the Northward Expansion shippers. The Natural Gas Act (NGA), administered by FERC, controls transportation and sale of natural gas in interstate commerce. If the NGA applies to a natural gas project, the natural gas company must obtain a FERC-issued certificate of public convenience and necessity.

Because nearly all of the proposed facilities and potential customers of the Northward Expansion would be in California, the Public Utilities Commission of the State of California (CPUC), and the Pacific Gas and Electric Company (PG&E), plus several other interested parties, protested Mojave's proposal primarily on the grounds that CPUC, not FERC. has jurisdiction over the proposed expansion. FERC, believing it had exclusive jurisdiction, issued a NGA certificate to Mojave, authorizing it to construct the pipeline. PG&E and CPUC filed petitions for review of FERC's decision. However, while these appeals were pending, Mojave Pipeline decided to refuse the certificate FERC had issued. FERC then filed two motions with the Ninth Circuit one to dismiss the appeals as moot, and a second for leave to issue an order to vacate all orders regarding Mojave's application. Subject to leave of the Ninth Circuit, FERC also issued an order vacating all such orders, including those under judicial review.

The interesting point in this case is that in the Ninth Circuit's estimation, CPUC and PG&E remained "aggrieved" within the meaning of the NGA by FERC's earlier orders. Nonetheless, over CPUC's objection, the court agreed that the appeals were now moot. Because the only relief CPUC requested was that FERC's order be vacated, the court had no ongoing controversy between FERC and CPUC. In addition, no exception to the mootness doctrine applied. The case did not present an issue capable of repetition while evading review, and Mojave's decision to abandon its project did not fall within the "voluntary cession" exception. FERC could not assume jurisdiction until another application was filed.

In addition, the court found no collateral consequences that CPUC or PG&E would suffer if the orders were not reviewed, even though PG&E had argued that they had entered into long-term contracts with reduced rates to meet the anticipated competition from Mojave. The Ninth Circuit found no exception for the "mere possibility of continuing, present, adverse effects" and stressed that "the collateral consequences must be legal effects that would arise because of FERC's opinion in this case." As a result of this reasoning, the court granted FERC leave to vacate its prior orders and directed FERC to dismiss the entire Mojave proceedings, regardless of the previous effects on CPUC or PG&E.

B. Standing

1. Citizens for a Better Env't-Cal. v. Union Oil Co. of CaL, (UNOCAL). 83 F.3d 1111 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997), supra part I.B.

2. Knee Deep Cattle Co. v. Bindana Inv. Co., 94 F.3d 514 (9th Cir. 1996), cert. dismissed, 117 S.Ct. 1027 (1997), supra part I.B.

3. Northwest Envtl. Advocates v. City of Portland, 74 F.8d 945 (9th Cir. 1996), cert. denied, 116 S.Ct. 2550 (1996).

This case involved the denial for rehearing and the denial of the suggestion for rehearing en bane that was requested by the City of Portland after the Ninth Circuit's decision in Northwest Envtl. Advocates v. City of Portland (NWEA II).(118) This series of cases dealt with violations of water quality standards that occur when rainflow exceeds the city treatment plant's capacity, causing the release of untreated sewage through a system of combined sewer overflow (CSO) outfalls into the Columbia and Willamette Rivers. The issue in these cases was whether citizens can bring suit to enforce water quality standards for which there are no set end-of-pipe effluent limitations.

In the original case, Northwest Envtl. Advocates u City of Portland, (NWEA I),(119) the Ninth Circuit held that citizens lack standing under the Clean Water Act to enforce water quality standards that are conditions of a NPDES permit because such standards do not constitute an "effluent standard or limitation" under 33 U.S.C. [sections] 1365 (a) and (f). However, the Ninth Circuit panel accepted petition for rehearing of their decision in light of the recently decided Supreme Court case of PUD No. 1 of Jefferson County v. Washington Dep't of Ecology.(120) Relying on this decision, the panel vacated its opinion in NWEA I and instead held that citizens do not lack standing under the Clean Water Act to enforce water quality standards. After this reversal, the City of Portland petitioned for rehearing and also suggested a rehearing en bane. The petition was denied in this case without a supporting opinion, but Judge O'Scannlain did write an opinion for the dissent, which is summarized below.

The dissent suggested that the Jefferson County case was misused and did not support reversal of the panel's earlier holding in NWEA I. It also pointed out how this decision not only conflicts with the other circuits, but also conflicts with a prior decision of the Ninth Circuit.

Jefferson County involved a state imposing a stream flow condition as part of the state's certification process for a federal permit to build a hydroelectric power plant.(121) The Supreme Court held that these limitations made by the state were appropriate requirements that would enable the state to ensure the power plant's compliance with the state water quality standards and other applicable state law.(122) However, this case had nothing to do with citizen's standing and in no way supports the holding of the majority in NWEA II.

The dissent explained that the court's holding also conflicts with a similar case it had previously decided. In Oregon Natural Resources Council v. United States Forest Serv.,(123) the court allowed citizen suits to enforce permit conditions that had been derived from water quality standards, but did not allow citizens to enforce the water quality standards themselves. The Court's holding regarding enforcement by citizens of water quality standards under [sections] 1311(b)(1)(C) could be logically extended to enforcement by citizens of water quality standards in a permit.

Finally, the dissent pointed out that no other circuits have agreed with the majority's holding, and in fact other circuits have explicitly ruled out citizen suit enforcement of water quality standards contained in permits. The dissent concluded that Congress never intended this result and rehearing should have been allowed because this holding will reshape federal environmental law.

IV. CONSTITUTIONAL CHALLENGES

1. Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996).

2. Natural Resources Defense Council v. California Dep't of Transp. (Caltrans), 96 F. 3d 420 (9th Cir. 1996).

This case involves citizen suit enforcement under the Clean Water Act (CWA). In Caltrans, the Natural Resources Defense Council (NRDC) brought suit originally against the California Department of Transportation (Caltrans) and its director, James Van Loben Sels, alleging Caltrans' non-compliance with their CWA permit requiring control of polluted stormwater runoff from roadways and maintenance yards in southern California Because of Eleventh Amendment sovereign immunity constraints. NRDC dropped the claim against Caltrans, an "arm of the state," leaving only the claim against Van Loben Sels for prospective injunctive relief intact. NRDC prevailed against Van Loben Sels, securing injunctive relief.

This is the first Ninth Circuit case concerning sovereign immunity with respect to federal statutes enacted under the Commerce Clause since the Supreme Court decided Seminole Tribe of Florida v. Florida.(124) In Seminole Tribe, the Supreme Court found that Congress has no duty to abrogate state sovereign immunity under the Indian Gaming Regulatory Act (IGRA).(125) IGRA, like the environmental statutes, was enacted pursuant to the Commerce Clause. This decision expressly overruled Pennsylvania v. Union Gas Co.,(126) which declared congressional abrogation of sovereign immunity under the Commerce Clause to be valid.

Additionally, Seminole Tribe found that because IGRA contained intricate remedial procedures, the Ex parte Young doctrine, which allows citizen suits against government officials for prospective injunctive relief, could not apply.(127) Justice Rehnquist, writing for the majority, attempted to quell environmental concerns in a footnote which indicated that the Seminole Tribe decision would not implicate other statues enacted under the Commerce Clause like the Clean Water Act.

While the result in Caltrans is undoubtedly an accurate reflection of the state of the law in the Ninth Circuit after Seminole Tribe, Judge O'Scannlain exhibited his wariness of this holding in a concurring opinion. Judge O'Scannlain was concerned about the "persistent erosion" of the Eleventh Amendment, and was "reassured" that the Supreme Court has granted certiorari in another Ninth Circuit case, Coeur d'Alene Tribe of Idaho v. Idaho.(128) Coeur d'Alene held, like Caltrans, that the Eleventh Amendment does not bar a claim for injunctive relief against state officials to enforce a statutory right.(129) Judge O'Scannlain's discomfort may originate from the basis of the Ex parte Young doctrine, which was ostensibly crafted to atone for extreme constitutional violations perpetuated under the color of state law. Because environmental statutes do not readily fall into this category, the application of the Ex parte Young doctrine in these cases may not be appropriate. As Judge O'Scannlain declares, "whatever the result of the Supreme Court's review, its timely attention to the delicate interaction between federal and state governments in the context of the Eleventh Amendment will be most welcome."

3. Northwest Forest Resource Council v. Pilchuck Audubon Soc'y, 97 F.3d 1161 (9th Cir. 1996), supra part III.C.

(1) 898 F.2d 687 (9th Cir. 1990), cert. denied, 498 U.S. 998 (1990).

(2) 28 U.S.C. [sections] 2412(a)(1) (1994).

(3) United States v. Trident Seafoods Corp., 60 F.3d 556 (9th Cir. 1995).

(4) See 42 U.S.C. [sections] 7413(b) (1994).

(5) 487 U.S. 552 (1988) (determining standard for renew under the Equal Access to Justice Act).

(6) 28 U.S.C. [sections] 2412(a)(1) (1994).

(7) 42 U.S.C. [sections] 7661 (1994).

(8) 40 C.F.R [sections] 70.5(c)(3) (1996).

(9) Id. [sections] 70.5.

(10) Id. [sections] 70.6.

(11) 42 U.S.C. [sections] 7607(f) (1994).

(12) 33 U.S.C. [sections] 1319(g) (1994)

(13) 949 F.2d 552 (1st Cir. 1991).

(14) 33 U.S.C. [sections] 1319(g)(6)(A)(iii) (1994)

(15) 83 F.3d 1111 (9th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997)

(16) Or. Rev. Stat. [sections] 468.135, 468.140 (1995).

(17) DEQ issued the SFO pursuant to Or. Rev. Stat. [sections] 183.415(5) (1995).

(18) 36 C.F.R. [subsections] 4.30, 7.97(c) (1995).

(19) 16 U.S.C. [subsections] 14 (1994)

(20) 36 C.F.R [sections] 4.30 (1995)

(21) Id. [sections] 7.97(c).

(22) 36 C.F.R. [sections] 2.30 (1967 ed.) (moved to 36 C.F.R. [sections] 4.30 (July 1, 1977 ed.))

(23) 16 U.S.C. [sections] 3 (1994).

(24) Chevron, U.S.N, Inc. v. Natural Resources Defense Council, Inc.. 46. U.S. 83.. 844 (1984).

(25) 463 U.S. 29 (1983).

(26) National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [subsections] 4321-370d (1994).

(27) 36 C.F.R [sections] 7.97(c) (1995).

(28) 5 U.S.C. [sections] 706(2)(A) (1994).

(29) National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [subsections] 4321-370d (1994).

(30) Cal. Pub. Res. Code [subsections] 21,000 21,777 (West 1994).

(31) 40 C.F.R 5 1508.7 (1996)

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

(33) Fritiofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir. 1985), abrogated on on other grounds, Sabine River Auth v. United States Dep't of Interior, 951 F.2d 669 (5th Cir. 1992), cert. denied, 506 U.S. 823 (1992).

(34) 40 C.F.R. [sections] 1502.14 (1995).

(35) Level of service C had stable traffic flow but limited speed and restrained lane changes.

(36) Equal Access to Justice Act, 28 U.S.C. [sections] 2412(d) (1994).

(37) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352-53 (1989).

(38) 36 C.F.R. [sections] 219.19 (1996).

(39) Id.

(40) Id. [sections] 219. 19(a)(2).

(41) 40 C.F.R. [sections] 1508.25(c) (1996).

(42) Id. [sections] 1508.8(b), 1508.7.

(43) 36 C.F.R [sections] 219.27(a)(5) (1996).

(44) 16 U.S.C. [sections] 1611 (1994 & Supp. 1995).

(45) Sierra Club, 93 F.3d at 613.

(46) 50 C.F.R, 17.3 (1996).

(47) 115 S.Ct. 2407, 2410 n. 2 (1995).

(48) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

(49) 50 C.F.R [sections] 173 (1996).

(50) Arizona-Idaho Conservation Act, Pub. L. No. 100-696, 102 Stat. 4597, 4597-99 (1988).

(51) Id. at 4599

(52) Mount Graham Coalition v. Thomas, 53 F.3d 970 (9th Cir. 1996) (Red Squirrel V). 53 Pub. L. 104-134, [sections] 335, 110 Stat. 1321 (1996).

(54) Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855).

(55) 16 U.S.C. [subsections] 1531-1544 (1994).

(56) Oregon Natural Resources Council, 99 F.3d at 336.

(57) 450 U.S. 79 (1981).

(58) Oregon Natural Resources Council, 99 F.3d at 337 (quoting Orange County v. Hong Kong & Shanghai Banking Corp., 52 F.3d 821, 825 (9th Cir. 1995)).

(59) 16 U.S.C. [sections] 1533(b)(1)(A) (1994).

(60) 42 U.S.C. [sub sections] 4321-4370c (1994)

(61) 16 U.S.C. [sub sections] 1531-1544 (1994).

(62) Id. [sections] 1536.

(63) Id. [sections] 1539.

(64) The Columbia River Fish Management Plan is a "unique, judicially created, federal-state-tribal compact that controls, through consent decree, the rules and regulations governing fishing allocation and rights of harvest for fish that enter the Columbia River System." Ramsey, 96 F.3d at 438; see also United States v. Oregon, 913 F.2d 576 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991).

(65) 42 U.S.C. [sections] 4332(C) (1994).

(66) 40 C.F.R. [subsections] 1501.4, 1508.9 (1996).

(67) Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir. 1988).

(68) Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. [subsections] 1801-1883 (1994).

(69) Id. [sections] 1853(b)(6)(A).

(70) Id.

(71) Id. [sections] 185(a)(4).

(72) U.S. Const. art. 1, [sections] 9, cl. 6

(73) Alliance Against IFQ's, 84 F.3d at 352 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

(74) 42 U.S.C. [subsections] 4321-4370c (1994).

(75) 90 Stat. 2949, 2952, 2958; 36 C.F.R. [sections] 219 (1996).

(76) 33 U.S.C. [sections] 1365(b) (1994)

(77) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989).

(78) 5 U.S.C. [sections] 706(2)(a) (1994).

(79) 40 C.F.R [sections] 1502.9(c)(1)(u) (1996)

(80) Swanson, 87 F.3d at 344, quoting, Forest Conservation Council v. Espy, 835 F. Supp 1202, 1216 (D. Idaho 1993), aff'd, 42 F.3d 1399 (9th Cir. 1994)

(81) 16 U.S.C. [sections] 1611 (1994 & Supp 1995)

(82) Id. [sections] 1611(c)(1)(A).

(83) 16 U.S.C. [section] 1611 (1994 & Supp. 1995).

(84) 5 U.S.C. [section] 705 (1994).

(85) Id. [section] 704 (1994)

(86) 88 F.3d 697 (9th Cir. 1996).

(87) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), 1995, Pub. L. No. 104-19, [subsections] 2001-02, 109 Stat. 240 (1995) (codified at 16 U.S.C. [section] 1611).

(88) Lujan v. Defenders of Wildfife, 504 U.S. 555, 561 (1992).

(89) 16 U.S.C. [section] 2001(f)(4) (1995)

(90) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), 1995, Pub. L. No. 104-19, [subsections] 2001-2002, 109 Stat. 194, 240-47 (1995) (codified al 16 U.S.C. [section] 1611).

(91) Id.

(92) Black's Law Dictionary 1594 (4th ed. 1968).

(93) H.R. Conf. Rep. No. 104-124, at 137 (May 16, 1995).

(94) 504 U.S. 429 (1992).

(95) National Forest Management Act of 1976, 16 U.S.C. [sections] 472(a) (1994). Regulations are in 36 C.F.R [sections] 223 (1996).

(96) Repeal of an Act to Encourage the Growth of Timber on the Western Prairies of 1878, 43 U.S.C. [sections] 1181(a), 1701-17Z (1994); 43 C.F.R [sections] 8000 (1996).

(97) Grindstone Butte Project v. Kleppe, 638 F2d 100, 102 (9th Cir. 1981).

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

(99) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), 1995, Pub. L. No. 104-19, [sub-sections] 2001-2002; 109 Stat. 194, 240 47 (1995) (codified at 16 U.S.C. [sections] 1611).

(100) 16 U.S.C. [sections] 1604(g)(3) (1994).

(101) 5 U.S.C. [sections] 706 (2)(a) (1994).

(102) 16 U.S.C. [sections] 1611(c)(1)(A) (1994 & Supp. 1995).

(103) 850 F. Supp. 886 (D. Or 1994), vacated as moot, 56 F. 3d 1071 (9th Cir, 1995).

(104) Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 452 n.8 (1989).

(105) 63, FERC [paragraph] 61, 157 (1993).

(106) 16 U.S.C. [sections] 797 (1994).

(107) Id. [sections] 797(e) (1994).

(108) 16 U.S.C. [subsections], 1600-1614 (1994).

(109) 438, U.S. 696 (1978).

(110) 438 U.S. at 706.

(111) 16 U.S.C. [sections] 797(e) (1994)

(112) 43 U.S.C. [sections] 1653(c)(1) (1996).

(113) Beneficial v. Exxon Corp., 959 F.2d 805, 807 (9th Cir. 1992).

(114) Administrative Orders; Review Act, 28 U.S.C. [sections] 2342 (1994).

(115) 470 U.S. 729 (1985).

(116) Id. at 737.

(117) 28 U.S.C [sections] (1994) (emphasis added).

(118) 56 F.3d 979 (9th Cir, 1995)

(119) 11 F.3d 900 (9th Cir. 1993).

(120) 114 S.Ct. 1900 (1994).

(121) Id. at 1905.

(122) Id. at 1914.

(123) 834 F.2d 842 (9th Cir. 1987).

(124) 116 S.Ct. 1114 (1996).

(125) Id. at 1119.

(126) 491 U.S. 1 (1989).

(127) 116 S.Ct. al 1119.

(128) 42 F.3d 1244 (9th Cir.1994), reversed in part sub nom. Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028 (1997).

(129) Id. at 1251.