Case summaries.

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

1. Hail v. Norton, 266 F.3d 969 (9th Cir. 2001), infra Part V.B.

2. Hall v. United States Environmental Protection Agency, 273 F.3d 1146 (9th Cir. 2001).

Robert Hall petitioned a decision by the Environmental Protection Agency (EPA) approving revisions to Clark County, Nevada's air quality plan. The Ninth Circuit held that EPA applied an incorrect standard in reviewing the air quality plan. However, the Ninth Circuit also found that EPA provided reasonable hearing and notice, the agency's revisions after publication of the initial notice were permissible, and that no prejudice resulted from the state's failure to forward the proposed revisions to EPA within sixty days as required by statute. Hall's petition was granted in part, denied in part, and remanded to EPA.

The Clean Air Act (CAA) (1) states that EPA shall set National Ambient Air Quality Standards (NAAQS), which are designed to prevent and control air pollution. (2) To effectuate this objective, the CAA requires each state to submit a State Implementation Plan (SIP) detailing how that state will achieve the established air quality standards. (3) While the CAA gives each state latitude in selecting the means to achieve these objectives, the Act requires each state to regulate emissions from new stationary sources and automobiles, and to enforce minimum emissions control standards for these sources. These SIPs are subject to EPA review.

Congress has established NAAQS objectives since 1970, but amendments to the CAA in 1977 and 1990 have steadily pushed back the deadlines for those objectives. The 1990 Amendments included minimum emission controls for new stationary sources that differed from those established in the 1981 Amendments. (4)

Hall challenged EPA's decision to approve revisions to the SIP that would modify emissions standards for new stationary source emissions. Addressing Hall's challenge, the Ninth Circuit examined EPA's SIP review responsibility and whether the revisions interfered with the current attainment requirements of the CAA. In briefs filed with the court, EPA justified its approval of the SIP based on its interpretation of section 110(l) of the CAA: (5) "`If the SIP revision does not relax the existing SIP ... then the SIP revision does not `interfere' with attainment [or] reasonable further progress ... requirements and no further inquiry is needed.'" (6) EPA then stated that the revised SIP did not relax the air quality rules approved in 1981, and therefore, it would not interfere with reasonable further progress towards or attainment of the NAAQS.

To determine the validity of this assertion, the Ninth Circuit first looked at EPA precedent to determine EPA's review responsibility under section 110(l) of the CAA. EPA first argued that its interpretation of section 110(l) was owed deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron). (7) EPA also argued for deference because its interpretation served as the basis of other EPA final rules regarding SIPs. The court, however, noted that even if previous final rules substantiated EPA's interpretation of section 110(l), every previously promulgated rule explicitly denied any precedential effect. The Ninth Circuit stated that interpretations of the CAA presented in rules that lack "force of law" are not entitled to Chevron deference. The court similarly denied deference on any other ground. The court found that in simply not relaxing preexisting rules the agency did not necessarily establish "non-interference," despite EPA's claim to the contrary. Instead, the court endorsed case-by-case review of SIP revisions.

Next, the Ninth Circuit analyzed section 110(l) of the CAA to determine whether EPA's interpretation was statutorily correct. Because the text of section 110(l) of the CAA does not set out EPA's review responsibility, the court examined the history of the provisions which spoke to that responsibility.

The court noted that prior to the 1990 Amendments EPA interpreted SIP review provisions to mean that revisions could be approved if they did not "interfere with the attainment or maintenance of [NAAQS]." (8) EPA disapproved plans if the revisions would not allow for attainment of the national standards. (9) EPA reiterated this non-interference position in the SIP Preamble for 1977 Amendments, (10) and Congress incorporated it into the 1990 Amendments of the CAA. (11) Thus, EPA's review responsibility, the Ninth Circuit noted, was to determine whether a particular component of the SIP complied with the NAAQS and whether the revised SIP would suffice to meet the required reductions in air pollution. (12) The court elaborated upon this interpretation by noting that this determination cannot be made in a vacuum, but must be determined in relation to the SIP as a whole.

After determining EPA's review responsibility, the Ninth Circuit quickly noted that EPA did not arrive at the "no-relaxation" rule by empirically analyzing the existing level of pollution as compared with national standards, but instead premised it on necessary statutory equivalence between the non-relaxation requirements of the 1981 rules and non-interference with present attainment requirements. EPA established the 1981 rules as a baseline and determined that all revisions that minimally complied with those rules constituted non-interference. The court dismissed this method, stating that there is "no necessary correlation between maintaining the stringency of the 1981 rules and meeting the post-1990 attainment requirements of the Act." (13)

After determining that EPA applied an incorrect standard in reviewing the revised SIP, the Ninth Circuit turned to whether EPA adequately published the rules and revisions of the revised SIP. The court documented the steps taken by EPA, including notice in local newspapers, a notice of proposed rulemaking, and publication of the final rule, and determined that those steps provided the public with an adequate opportunity to comment.

The Ninth Circuit then examined whether continued revision was permissible after EPA's initial proposed rulemaking. EPA published a notice of proposed rulemaking in 1995, and Clark County later received extensive comments from the public and suggestions from EPA. Following notice and comment, EPA made its final approval of the revised new source review program. Hall contended that no comments should have been accepted between the time of the proposed rulemaking and the announcement of the final rule. Hall noted that nothing in the Administrative Procedure Act (APA) (14) requires EPA to seek comments on a revised final rule. However, the court highlighted the fallacy of this argument, noting that notice and comment rulemaking is by design intended conceivably to alter the proposed rule upon receipt of public input. Because the public had opportunity to comment on the numerous drafts preceding the final rule and because no statutory right entitled Hall to comment on the revised final rule, continued revision was permissible.

Lastly, the court briefly addressed whether Nevada's failure to submit the SIP revisions to EPA within sixty days of approval by the county constituted prejudice warranting reversal of EPA's decision. Because Hall failed to demonstrate any prejudice resulting from this transgression, the Ninth Circuit determined that no action was warranted.

3. United States v. Pearson, 274 F.3d 1225 (9th Cir. 2001), infra Part III.

B. Clean Water Act

1. Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001), cert. granted, 70 U.S.L W. 376 (U.S. June 10, 2002) (No. 01-1243).

Angelo K. Tsakopoulos (Tsakopoulos) appealed the district court's ruling (15) that, as the owner of Borden Ranch, he had violated the Clean Water Act (CWA) (16) on 358 separate occasions. The district court had levied a $500,000 fine against Tsakapoulos and required him to restore four acres of wetlands. The Ninth Circuit affirmed the district court's holding that Tsakopoulos had violated the CWA (except with respect to vernal pools) and remanded the case for a recalculation of civil penalties in light of the exclusion of the vernal pools.

Tsakopoulos purchased the 8400-acre Borden Ranch in California's Central Valley in 1993. At the time the ranch was purchased, the property consisted largely of various types of wetlands: vernal pools, swales, and intermittent drainages. One common element of these various wetlands is a restrictive layer at their base that serves to contain the surface water within the area of the vernal pool, swale or drainage, and to prevent that water from percolating downwards through the soil. This restrictive layer also inhibits or prevents the downward growth of roots from crops.

To make his property amenable to orchard and vineyard farming, Tsakopoulos began deep ripping the wetlands on his property. Deep ripping is a process by which large prongs are dragged behind a bulldozer or tractor through the earth, perforating the restrictive layers at the bottom of the wetlands. Once these blades have perforated the restrictive layer in the wetlands, the water drains from beneath the restrictive layer. Any crop planted above the restrictive layer is thus able to send roots deep into the soil.

Tsakopoulos began deep ripping in the fall of 1993. After he began, the Army Corps of Engineers (Corps) issued him a retroactive permit in exchange for various mitigation measures. In the fall of 1994 and again in 1995, Tsakopoulos engaged in deep ripping in protected wetlands that he did not have a permit to alter. In response, the Corps issued cease and desist orders after both of these incidents, and in May of 1996 the Corps and the Environmental Protection Agency (EPA) entered into an administrative order on consent with Tsakopoulos by which Tsakopoulos would refrain from further wetlands violations and set aside a 1368-acre preserve.

Following these incidents, the Corps and EPA, in a regulatory guidance letter issued in late 1996, distinguished deep ripping from normal plowing activity. Subsequently, the Corps again determined that Tsakopoulos had continued deep ripping wetlands on his property and issued an administrative order. Tsakopoulos then filed a lawsuit challenging the authority of both the Corps and EPA to regulate deep ripping, and the United States counterclaimed for injunctive relief and civil penalties for CWA violations.

The district court held that Tsakopoulos violated the CWA by deep ripping vernal pools and drainages. The court assessed a $500,000 fine and ordered Tsakopoulos to restore four acres of wetlands. Following the district court's final order, Tsakopoulos appealed.

The Ninth Circuit analyzed the appeal in four stages. First, the court considered whether the Corps had jurisdiction over deep ripping activity in wetlands. The court began by noting that the CWA prohibited the "discharge of any pollutant" (17) from any point source into the waters of the United States. The Ninth Circuit recognized that wetlands adjacent to navigable waters traditionally have been considered within the purview of the CWA, for these purposes. Furthermore, under the CWA pollutant includes "dredged spoil, ... biological materials, ... rock, [and] sand," (18) and a discharge is "any addition of any pollutant to navigable waters from any point source." (19) Finally, the Ninth Circuit noted that "[i]t is unlawful to discharge pollutants into wetlands without a permit from the Army Corps of Engineers." (20)

The court disagreed with Tsakopoulos's contention that a process such as deep ripping, which moves material already in the wetland without adding other materials, did not amount to the addition of a pollutant under the terms of the CWA. The court recalled Rybachek v. United States Environmental Protection Agency, (21) which held that removing material from a stream in a placer mining process and then returning the material to the stream constituted the addition of a pollutant. (22) The court also noted United States v. Deaton, (23) a Fourth Circuit decision holding that the process of "sidecasting," whereby previously dredged material returned to the wetland of origin constitutes an addition of a pollutant under the CWA. (24) The court was unable to distinguish the instant case from Rybachek and Deaton, and thus it concluded that deep ripping as performed by Tsakapoulos qualified as a discharge of a pollutant under the CWA.

After establishing that redepositing material in a wetland through deep ripping is the discharging of a pollutant for the purposes of the CWA, the court briefly addressed whether the machinery used in the deep ripping process served as a point source. Noting that the CWA broadly defines point source (25) and that bulldozers and tractors are considered point sources, (26) the Ninth Circuit concluded that bulldozers and tractors pulling large metal prongs through the wetlands constituted a point source.

In its final examination of Corps jurisdiction over the deep ripping process, the Ninth Circuit examined the "normal farming" exception of the CWA. (27) While recognizing that activities such as plowing might qualify for this exemption, the court noted the "recapture" provision of the exemption, which requires permits for those activities that alter a navigable water body for a purpose to "which it was not previously subject." (28) Because deep ripping functions to "bring[] an area of the navigable waters into a use to which it was not previously subject," (29) that activity is governed by the recapture provision, and therefore a permit is required. With the normal farming exception dispatched, the Ninth Circuit concluded that the Corps and EPA had jurisdiction over Tsakapoulos's deep ripping activities.

The Ninth Circuit then reversed the district court's holding that CWA violations occurred in the vernal pools on the ranch. This reversal was based on Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), (30) which had been announced after the district court issued its decision. (31) In SWANCC, the Supreme Court held that the Corps' assertion of jurisdiction over intrastate waters used by migratory birds but not bordering navigable waterways exceeded the Corps' authority as provided by the CWA. (32) By definition, vernal pools do not border navigable waterways; consequently, the vernal pools on Tsakapoulos's ranch, as isolated bodies of water, were not within the Corps' jurisdiction. Accordingly, the Ninth Circuit reversed this portion of the district court's findings.

Next, the Ninth Circuit examined the district court's factual findings. Tsakapoulos maintained that the United States offered no evidence that deep ripping had occurred on the ranch. The appellate court noted that in fact ample evidence had been provided, including eyewitness testimony, documentary evidence, Tsakopoulos's own testimony, and expert testimony showing that the restrictive layer had been ripped up. The district court had considered sufficient evidence to warrant its decision, and the Ninth Circuit found no error by the district court.

The Ninth Circuit evaluated the civil penalties assessed against Tsakapoulos. Tsakapoulos challenged the penalties on three fronts, none of which swayed the Ninth Circuit. Tsakapoulos first argued that the language of the CWA, which allows for $25,000 penalties "per day for each violation" (33) capped the total penalties at $25,000 for any one day, regardless of how many violations occurred on that day. After examining slightly similar cases throughout the country, (34) the appellate court agreed with the district court that for each pass of the deep ripping mechanism, a separate and distinct CWA violation occurred. The Ninth Circuit then noted that because the deep ripping of vernal pools was no longer under Corps jurisdiction, the case would be remanded for a recalculation of damages, if necessary.

Tsakapoulos then argued that, in light of a previous consent decree between EPA and the Simpson Timber Company (which had deep ripped 987 acres but was subject only to a $30,000 penalty), the penalty assessed against Tsakapoulos was unfairly disproportionate. The Ninth Circuit agreed with the district court that consent decrees and judgments are distinct animals and thus the Simpson decree was irrelevant. Additionally, the appellate court noted that Tsakapoulos had knowingly assumed the risk inherent in litigation in lieu of settlement.

Finally, in response to Tsakapoulos's argument that his good faith, the trivial nature of the violations, and uncertainty concerning governmental regulatory authority warranted a reduced penalty, the Ninth Circuit deferred to the discretion of the district court while also noting that the penalty assessed was significantly lower than that allowable under the CWA.

The dissent took issue with the majority's conclusion that the return of deeply plowed material to the wetland constitutes an addition of a pollutant. Citing National Mining Ass'n v. United States Army Corps of Engineers, (35) the dissent argued that because Congress addressed in the CWA only the "discharge" or "addition" of pollutants, the Corps had no authority to regulate the redeposit of the dredged materials to the wetland. The dissent reasoned that Rybachek (36) was distinguishable from the case at bar because Rybachek's holding was premised on returning mining material to a different location in the river from which it was removed. Similarly, Deaton (37) did not apply because plowing is not equivalent to dredging and redepositing dredged spoil. Finally, the dissent added that those unintended deep ripping acts that occurred should have been exempt as normal farming activity because they fell outside the scope of the "recapture provision" of the CWA. (38)

2. Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001).

The Ninth Circuit held that the Environmental Protection Agency (EPA) did not have a mandatory duty to make findings when provided with information regarding violations of the Clean Water Act (CWA). (39) Furthermore, EPA does not have a mandatory enforcement duty even after a violation has been found.

The Grand Canyon chapter of the Sierra Club (the Club) sued EPA under the CWA for failure to take action against the City of Nogales and the International Boundary and Water Commission (Boundary Commission) for operating a wastewater treatment plant that was allegedly polluting the Santa Cruz River. The treatment plant is located in Arizona near the United States-Mexico border and serves nearly 200,000 people in Nogales, Arizona, and Nogales, Sonora, Mexico. At the time of suit the plant operated under an expired permit issued by EPA, and according to reports submitted by the Boundary Commission to EPA, had violated its permit limitations 128 times in the past five years.

The Club sought enforcement action from EPA under the citizen suit provision of the CWA. (40) Although the Club, Nogales and the Boundary Commission reached a settlement, the resulting consent decree was not binding on EPA. Thus the Club's claim against the agency was preserved. The CWA citizen suit provision authorizes any citizen to sue EPA "where there is alleged a failure of the Administrator to perform any act or duty ... which is not discretionary." (41) EPA argued that its decision not to enforce was discretionary. The district court agreed and dismissed for lack of jurisdiction, and the Club appealed.

The Ninth Circuit separately addressed whether EPA had a duty to make findings and whether the agency had a duty to take enforcement action. As it did in Friends of the Cowlitz v. FERC, (42) the court cited Heckler v. Chaney (43) for the "traditional presumption" that an agency retains unreviewable prosecutorial discretion unless Congress has indicated otherwise. (44) Although this presumption of agency discretion can be overcome, the language of the CWA does not impose on EPA a mandatory duty to investigate alleged violations or to make findings. The Club based its claim on section 309(a)(3) of the CWA, which states that "[w]henever on the basis of any information available to him the Administrator finds that any person is in violation ... he shall issue an order requiring such person to comply." (45) However, the court concluded that this section concerns the duty of the Administrator only after a finding has been made; it does not create an initial duty to investigate. Furthermore, requiring EPA to investigate every complaint could interfere with the agency's ability to investigate and enforce the most serious violations.

Likewise, regarding enforcement, the court was unwilling to intrude on EPA's expertise in ordering agency priorities. Even when EPA finds a violation, the seemingly mandatory "shall" (46) in section 309 merely authorizes rather than commands EPA to take enforcement action. "Particularly when used in a statute that prospectively affects government action, `shall' is sometimes the equivalent of `may.'" (47) The statutory structure of the CWA demonstrates that enforcement is at the discretion of the EPA. That is, by providing for citizen suits, Congress acknowledged that EPA would not always act. The court found further support for EPA's prosecutorial discretion in the Act's legislative history. (48)

Finding that EPA did not fail to perform any non-discretionary duty, the Ninth Circuit affirmed the district court in dismissing the Club's citizen suit for lack of subject matter jurisdiction.

C. Off Pollution Act

1. Edwardsen v. United States Department of the Interior, 268 F.3d 781 (9th Cir. 2001), infra Part I.F.

D. CERCLA

1. Pritikin v. Department of Energy, 254 F.3d 791 (9th Cir. 2001), cert. denied, 70 U.S.L.W (2002), infra Part V.B.

2. Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001), cert. denied, 70 U.S.L.W. 3614 (U.S. Apr. 1, 2002) (No. 01-1091).

On rehearing en banc, the Ninth Circuit upheld summary judgment for the defendants who claimed that cleanup efforts by plaintiff Carson Harbor were not necessary. Although genuine issues of material fact remained as to whether plaintiff's response costs were necessary, defendants Carson Harbor Village Mobile Home Park, Richard G. Braley, and Walker Smith, Jr. (collectively Partnership Defendants) were not potentially responsible parties (PRPs) as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (49) The Ninth Circuit upheld summary judgment for defendants on state claims, while reversing summary judgment for defendants with respect to plaintiffs claim for indemnity.

Carson Harbor Village (Carson Harbor) purchased a mobile home park from the Partnership Defendants. Prior to and during part of Partnership Defendants' ownership of the property, Unocal Corporation (Unocal) held a leasehold in the property to extract, store, and refine petroleum products. While refinancing the property in 1993, Carson Harbor discovered on the property hazardous substances of a petroleum nature. Studies indicated that the material had existed on the property for several decades. Subsequently, contamination was found in surrounding soils and on-property wetlands. Carson Harbor notified the appropriate agencies, initiated and completed a cleanup, and then sued the Partnership Defendants, the Cities of Carson and Compton and unincorporated areas within Los Angeles County (Government Defendants), and Unocal for relief under CERCLA, the Resource Conservation and Recovery Act (RCRA), (50) the Clean Water Act, (51) and state common law claims. The district court rejected every claim brought by Carson Harbor. Carson Harbor appealed the CERCLA claim, the state-law claims against Government Defendants, and the indemnity claim against the Partnership Defendants.

The Ninth Circuit first addressed whether, under CERCLA, the costs incurred by Carson Harbor were "necessary" and therefore recoverable in a CERCLA action. The court found that the district court erred in focusing on whether Carson Harbor had an ulterior motive to remediate the property instead of whether the contamination posed a threat to human health or the environment. The Ninth Circuit deemed the latter question key to determining whether a cleanup is necessary. Because various testimony indicated that the contamination posed a potential threat, a genuine issue of material fact existed, and summary judgment for defendants was improper.

The court then turned to whether the Partnership Defendants were PRPs within the meaning of section 107(a) of CERCLA. (52) Partnership Defendants would be PRPs if a disposal occurred on the property during the time they owned the property. In determining what qualifies as a disposal under CERCLA, the Ninth Circuit examined at length possible definitions using circuit court interpretations, plain meaning analysis, and the Act's legislative history.

The Ninth Circuit began by noting the continuum of definitions amongst the circuits. At one end of the continuum, the Sixth Circuit requires active disposal on the part of an actor. (53) At the other end, the Fourth Circuit found that passive migration of contaminants from an underground storage tank (UST) without any other explicit action also qualified as disposal. (54) The Ninth Circuit rejected any definition that rested on a passive/active distinction.

The court noted that unlike situations involving underground storage tanks (USTs), no release occurred in the case at bar. Nor was the gradual contamination of the property akin to a disposal. The Ninth Circuit thus determined that the passive migration that occurred during the Partnership Defendants' ownership of the property was not a disposal within the meaning of CERCLA. However, after adopting this construction, the court sounded a note of caution. While the passive soil migration that occurred during the Partnership Defendants' ownership was not a disposal, other forms of passive migration, even those occurring without the benefit of human intervention, might still be classified as disposals under CERCLA.

The Ninth Circuit found support for its holding and its determination that other kinds of passive migration might constitute a disposal under CERCLA. For example, the court noted that one purpose of CERCLA is to encourage prompt and effective cleanup of abandoned storage tanks. In so finding, the court did not limit suits against owners of USTs that release pollutants into surrounding soil. However, by limiting liability for passive migration, the Ninth Circuit avoided absurd results, such as holding subsequent landowners equally as culpable as landowners who cause an initial spill. Also, allowing unchecked liability for passive soil migration would moot the innocent landowner defense. Legislative history also supported the Ninth Circuit's determinations that active roles were usually required to constitute a disposal, but that passive migration in the context of USTs also could amount to a disposal.

The Ninth Circuit then held that a nuisance cause of action cannot be premised on statutory authority affirmed the district court's grant of summary judgment to the Government Defendants. Finally, because a genuine issue of material fact existed as to whether the plaintiffs cleanup costs were necessary under CERCLA, the court reversed the grant of summary judgment for the Partnership Defendants on the indemnity claim.

Judge Fletcher concurred in part and dissented in part. While agreeing that the plaintiffs cleanup costs were necessary, Fletcher concluded that the majority erred in its characterization of what constitutes a disposal under CERCLA. Disposal, according to Fletcher, is defined foremost by its contemporary, common meaning. As the water passing through the wetlands carried the hazardous waste to the surrounding lands, the waste was deposited on those lands. Because, under CERCLA, a disposal includes a deposit, (55) this process, which occurred during the Partnership Defendant's ownership of the property, was one of disposal.

According to the dissent, holding the Partnership Defendants liable as PRPs would help accomplish two of CERCLA's purposes: ensuring the prompt and effective cleanup of waste disposal sites and assuring that those responsible for the contamination bear the costs of remediation. The majority's decision, argued Fletcher, instead will encourage landowners who discover contamination on their property to sell their property and thus evade any liability. This, Fletcher stated, does not promote prompt and effective cleanup of contamination. Furthermore, in the case at bar, Unocal continued to operate its petroleum plant on the property while the Partnership Defendants were owners. Fletcher stated that the absurdity of the majority's holding :is manifest in the result of the case: The Partnership Defendants, who had reason to know of the disposal, were not held responsible for cleanup costs, while the plaintiff, who had no reason to suspect contamination, was left to pay for part of the cleanup. Finally, Fletcher noted that CERCLA is not a fault-based scheme of liability; liability is strict and is based on property ownership at the time the disposal occurs. According to Fletcher, because passive soil migration is a form of disposal, summary judgment to the Partnership Defendants should be reversed.

3. United States v. Shell Oil Co., No. 00-55077, 2002 WL 1396519 (9th Cir. June 28, 2002).

The plaintiffs appealed and the defendants cross-appealed the district court's decision regarding Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (56) liability for the cleanup of the McColl Superfund Site in Fullerton, California. The Ninth Circuit upheld the district court's finding that the United States waived its sovereign immunity under 42 U.S.C. [section] 9620(a)(1). However, the Ninth Circuit reversed the district court's finding of liability against the United States, holding that the United States was not an "arranger" of non-benzol hazardous wastes under 42 U.S.C. [section] 9607(a)(3). (57) Because of this holding, the United States's appeal of the allocation of liability between it and the defendants for the non-benzol waste was moot. The Ninth Circuit affirmed the district court's allocation of one hundred percent of the clean up costs to the United States for benzol waste. Finally, the Ninth Circuit upheld the district court's rejection of defendants' claim that they were exempt from liability because they qualified for the "act of war" defense. (58)

The oil company defendants (Oil Companies) operated high-octane gasoline fuel refineries during World War II. The United States was the primary consumer of this fuel, also know as "avgas," which it needed to operate its airplanes during the war. Because of its dependence on avgas, the United States exercised control over avgas production. Government agencies, including the War Production Board (WPB) and the Petroleum Administration of War (PAW), could seize oil companies or order the production of gas. (59) However, the government primarily procured avgas through contractual agreements. Although the government encouraged production maximization through programs to assist avgas producers financially and to encourage exchange of avgas components between producers, the Oil Companies owned and managed the facilities themselves. They also sought contracts independently and profited from these contracts.

The major increase in avgas production during World War II led to a significant increase in hazardous waste byproducts, including spent alkylation acid and acid sludge. The government was aware of the acid waste increase, and it made some efforts to deal with the problem by, for example, facilitating a storage tank lease. However, it also declined to provide the resources to build new acid reprocessing facilities, despite the fact that existing facilities were inadequate to deal with the increased production. Faced with a choice between stopping production and dumping, the Oil Companies chose to dump large amounts of acid waste at the McColl Superfund Site. There was no evidence that the government was aware of any dumping contracts the Oil Companies had with the site, nor did the government order or approve this dumping. Prior to its cleanup, the site contained approximately 100,000 cubic yards of hazardous wastes.

The government eventually cleaned up the site, and after the cleanup was complete, the United States and the State of California brought suit to recover the approximately $100,000,000 cleanup cost. The Oil Companies filed a counter-claim alleging that the United States was responsible for the costs. In response to a motion for summary judgment, the district court rejected the Oil Companies' claim that the "act of war" defense applied to the companies and found that the companies were liable as arrangers. (60) However, after trial the court allocated one hundred percent of the cleanup costs to the United States, (61) having determined in summary judgment that the United States had waived its sovereign immunity and that the United States was liable as an arranger of non-benzol wastes under CERCLA. (62) The United States had conceded that it was an arranger of the benzol wastes at the site. (63) The United States appealed, and the Oil Companies cross-appealed.

The Ninth Circuit first addressed the United States's claim that it had not waived sovereign immunity for liability under CERCLA. The United States acknowledged that section 120(a)(1) of CERCLA waived sovereign immunity for some CERCLA claims. (64) The United States, however, argued that the waiver was limited to claims involving federally owned facilities engaged in nongovernmental activities. The Ninth Circuit rejected this narrow interpretation of the waiver. To be subject to suit, the government must unambiguously waive sovereign immunity. The Ninth Circuit indicated that section 120(a)(1) provides a clear waiver of immunity that the Supreme Court has acknowledged. (65) The Ninth Circuit rejected the government's claim that because the heading for section 9620 is "Federal facilities" the waiver must apply only to these facilities. The court explained that the section's text is not so limiting and that the heading was added to CERCLA after the waiver language had already been codified. (66) The court also indicated that the United States has been held liable in the past for activities other than nongovernmental activities, such as military installation cleanups. The court held that the waiver under section 9620 extends to any liability that could be found under 42 U.S.C. [section] 9607.

The court next addressed the United States's argument that under CERCLA, it was not an "arranger" of non-benzol waste. Persons liable under CERCLA include "any person who ... arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances." (67) Accordingly, arrangers are included in the list of persons liable. Although the Oil Companies had argued that the United States was liable under a broad theory of arranger liability rather than as a traditional direct arranger, the district court found that the United States could be liable as a direct arranger. (68) The district court described a direct arranger as one engaged in a transaction where "the sole purpose of the transaction is to arrange for the treatment or disposal of the hazardous wastes." (69) In so finding, the lower court relied on a letter from PAW concerning a proposed acid reprocessing plant. PAW declined to get involved with acid waste disposal but indicated that the problem was being left to WPB. The court also relied on the government's attempts to facilitate a storage tank lease, although the government was not itself the lessee. On appeal, the Ninth Circuit indicated "[a] direct arranger must have direct involvement in arrangements for the disposal of waste" (70) and held that these facts were not sufficient for a finding of direct arranger liability against the United States.

The Ninth Circuit also rejected the Oil Companies' claim that the United States was liable for the non-benzol wastes under a broader theory of arranger liability. The Oil Companies argued that because the United States had sufficient control over the avgas production process, the United States should be liable as an arranger of the non-benzol hazardous waste that resulted from the production. The Ninth Circuit declined to find any bright line test for this broader theory and instead compared the facts of the case with four other cases concerning arranger liability.

The court first distinguished United States v. Aceto Agricultural Chemicals Corp. (Aceto). (71) In that case, pesticide manufacturers were found liable as arrangers when the manufacturers sent the ingredients to another corporation's plant to produce the pesticides, and the other plant generated hazardous waste. (72) The Ninth Circuit distinguished the instant case from Aceto because in Aceto the manufacturers owned the ingredients and the pesticides at all times whereas the United States never owned the raw materials for the avgas and only purchased the avgas after its production was complete. In addition, unlike the manufacturers in Aceto, the United States did not attempt to avoid responsibility for its waste by contracting out the portion of the manufacturing process in which the waste was generated.

The court next distinguished United States v. Northeastern Pharmaceutical & Chemical Co. (NEPACCO). (73) In that case, the president and vice-president of a company were found liable as arrangers when the vice-president permitted the burial of chemical waste from the plant. (74) The Ninth Circuit rejected the Oil Companies' claim that NEPACCO stood for the proposition that mere authority to control, rather than ownership or actual control, is sufficient to find arranger liability. The court explained that in NEPACCO, the vice-president exercised actual control and the president was his superior in the corporation, but that the United States in the present case "neither exercised control, nor had the direct ability to control" the waste, and "there was never a United States employee in a position comparable to [the vice-president's in NEPACCO]." (75)

The court found that the case before it was more comparable to FMC Corp. v. United States Department of Commerce (76) and United States v. Vertac Chemical Corp. (77) According to the court, in FMC, the United States had exercised significantly more control over rayon production during World War II than it did over avgas production in this case. In FMC, the government's role included installing government-owned equipment and building its own plant to supply sulfuric acid for the process. (78) Nevertheless, the FMC court split evenly as to whether the United States was an arranger. Because the Third Circuit in FMC found that on the facts before it arranger liability was a close question, the Ninth Circuit found that the facts in the present case were not enough to call the issue of arranger liability a close question.

The Ninth Circuit found the facts in the case at hand most similar to those in Vertac Chemical. (79) In Vertac Chemical, the Eighth Circuit found no arranger liability against the United States for its purchase of Agent Orange from a plant during the Vietnam War, even though the United States had required another company to supply the plant with raw materials and should have known that the production of Agent Orange would generate waste. (80) After comparing the facts of the present case with Vertac Chemical, as well as Aceto, (81) NEPACCO, (82) and FMC, (83) the Ninth Circuit concluded that the United States was not an arranger of the non-benzol wastes. The court consequently held moot the United States's appeal regarding allocation of cleanup costs for the non-benzol wastes.

The court next addressed the United States's claim that the district court erred in allocating one hundred percent of the cleanup costs for the benzol wastes to the United States. Although the United States conceded that it was an arranger of the benzol waste, it did not concede that it should be allocated the entire costs of the benzol waste cleanup. (84) Under CERCLA, a district court "may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." (85) The Ninth Circuit explained that it could overturn the district court's allocation only for abuse of discretion or for clear error. The district court allocated one hundred percent of the benzol waste clean up costs to the United States for the same reasons that it allocated one hundred percent of the non-benzol waste clean up costs to the United States--because during the war the United States was willing to pay the costs of obtaining avgas, and the cleanup costs could be considered a part of the war effort. In addition, the United States did not provide needed transportation or resources to limit the dumping of hazardous wastes. The Ninth Circuit affirmed the district court's allocation of liability, finding the district court justified in relying upon the equitable factors it chose.

Finally, the court rejected the Oil Companies' claim of an "act of war" defense. Although section 107 of CERCLA provides such a defense, (86) the court found that the defense was a narrow one. (87) The court did not accept the Oil Companies' argument that the defense extended to the United States's involvement in wartime production of avgas. In addition, even if there had been an applicable "act of war," the Oil Companies failed to show that any such act was the sole cause, as the defense requires.

E. RCRA

1. United States v. Elias, 269 F.3d 1003 (9th Cir. 2001), petition for cert. filed, 70 U.S.L W. (U.S. Apr. 4, 2002) (No. 01-1502).

The Ninth Circuit affirmed the defendant's conviction and 204-month sentence for violating the "knowing endangerment" provision of the Resource Conservation and Recovery Act (RCRA). (88) The court emphasized that EPA does not yield its enforcement powers when it authorizes a state enforcement program under RCRA. The court vacated a large restitution award because restitution is not sanctioned for RCRA knowing endangerment violations under federal sentencing guidelines. (89)

Elias owned a fertilizer company in Idaho and held a patent on a cyanide leaching process. He ordered four employees to clean cyanide-laced sludge out of a holding tank without providing safety equipment. The employees experienced adverse health effects during their first attempt. Despite the apparent hazard, Elias refused the employees' requests for safety equipment. During the second attempt, one employee collapsed and was in danger of dying when medical help arrived. Elias subsequently lied to paramedics and authorities about the possibility of the tank containing cyanide and ordered a new employee to move and bury the sludge without taking safety precautions.

Elias was tried and convicted on four counts. The knowing endangerment offense was the most serious, caning penalties of up to $250,000 and/or fifteen years in prison. (90) On appeal, Elias contended that the United States ceded enforcement authority to Idaho when EPA authorized Idaho's hazardous waste program under RCRA, and therefore three of the four counts of his indictment should be dismissed because they alleged federal, rather than state, offenses.

Elias cited Harmon Industries, Inc. v. Browner (Harmon) (91) for the proposition that federal law was supplanted. In Harmon, the Eighth Circuit held that a consent decree between a state and a violator bound EPA because RCRA provides that actions taken by a state under an EPA-authorized program have the "same force and effect" (92) as action taken by EPA. (93) The Ninth Circuit distinguished Harmon, reading it to control only when, not whether, EPA can bring a civil action in federal court. Although RCRA provides that states will be the primary enforcers of RCRA, EPA loses none of its enforcement powers by authorizing a state program and is free to act when the state has not.

Instead, the court found another Ninth Circuit decision, Wyckoff Co. v. EPA, (94) to be controlling. In Wyckoff, defendants sought to enjoin an EPA civil enforcement action, arguing that RCRA authorizes state programs to be carried out "in lieu of" the federal program and that therefore Congress meant to revoke EPA's enforcement power in states with authorized programs. (95) As in Wyckoff, the court in Elias found no such congressional intent in RCRA. Therefore, EPA's interpretation that the agency retains enforcement authority was reasonable and entitled to deference.

Finally, Elias argued that the single sample of cyanide sludge EPA used to incriminate him did not accurately reflect the level of the tank's contamination; that EPA's regulation regarding acceptable levels of cyanide was unconstitutionally vague; and that the jury instruction regarding intention was contradictory, and thus a new trial was warranted. The court found that EPA's sample of the sludge taken outside the tank reflected the characteristics of the tank waste that led to the employee's collapse, making further sampling irrelevant. Further, the court found that the EPA regulation classifying cyanide as a reactive waste was not vague because Elias had the specialized knowledge required to understand it. (96) Regarding the jury instruction, the court found no error because the potential for confusion in the definition of "intention" was such that it "would only afflict law students or lawyers." (97)

F. National Environmental Policy Act

1. Hall v. Norton, 266 F.3d 969 (9th Cir. 2001), infra Part V.B.

2. Edwardsen v. United States Department of the Interior, 268 F.3d 781 (9th Cir. 2001).

Six Inupiat Eskimos and Greenpeace, Inc. sought review of the Secretary of the Interior's decision to permit oil production by BP Exploration Alaska, Inc. (BPXA) in the Beaufort Sea off the Alaska coast. The petitioners challenged the adequacy of a final environmental impact statement (EIS) as required by the National Environmental Policy Act (NEPA) (98) and compliance with the spill response plan requirements of the Oil Pollution Act of 1990 (OPA). (99) While the Ninth Circuit had jurisdiction to hear the NEPA claims, the court lacked jurisdiction to review the OPA claim. (100)

The Beaufort Sea's waters and shores provide habitat for caribou and the endangered bowhead whale on which the Inupiat Eskimo have subsisted for more than four thousand years. In 1979, Alaska and the United States sold leases to the Northstar oil field, a reserve extending from two to eight miles off the northern coast of Alaska in the Beaufort Sea and containing 158 million barrels of oil. BPXA acquired lease rights from the previous lessees in 1995. BPXA then applied for approval of a fifteen-year plan to: 1) produce oil, proposing to reconstruct and expand an artificial gravel island, Seal Island, on state submerged lands in the Northstar reserve; 2) drill oil and gas production wells, gas injection wells, and waste disposal wells from Seal Island into federal portions of the Northstar reserve; 3) transport oil from Seal Island to the shore using a buried six-mile pipeline; 4) transport gas to the shore using a second pipeline buried in the same trench as the oil pipeline; 5) transport oil overland to the Trans-Alaska pipeline in an aboveground eleven-mile pipeline; 6) transport oil in the Trans-Alaska pipeline to Valdez, Alaska; and 7) transport oil in tankers from Valdez to ports in the western United States and abroad.

BPXA applied for permits from the United States Army Corps of Engineers (Corps) as required by section 404 of the Clean Water Act (CWA) (101) and section 10 of the Rivers and Harbors Appropriations Act of 1899. (102) BPXA also applied to the Department of Interior's Minerals Management Service (MMS) for approval of the Development and Production Plan (DPP) as required by the Outer Continental Shelf Lands Act (OCSLA). (103) Because issuing the permit constituted a "major Federal action[]," under NEPA (104) in 1995 the Corps required preparation of an EIS. In 1996 MMS and the Environmental Protection Agency (EPA) concurred that an EIS was necessary. Acting as the lead agency, the Corps prepared a single EIS in conjunction with MMS, EPA, United States Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS). In July 1999, MMS relied on the EIS in approving the BPXA DDP, and in October 1999 the petitioners sought review in the Ninth Circuit of MMS's decision to approve the DDP.

The petitioners alleged two EIS deficiencies with respect to the DDP: 1) the EIS failed to address adequately direct and indirect effects; and 2) the EIS failed to address adequately cumulative impacts. First, the petitioners argued that the EIS inadequately addressed direct and indirect effects of the DDP because DDP itself did not include a "site-specific oil spill trajectory analysis." (105) The court responded that the OCSLA regulations promulgated by MMS do not require a lessee to conduct such a site-specific analysis when analyzing environmental impacts. However, MMS regulations do require that the "worst case" estimate of environmental impacts in the event of an oil spill involve "lain appropriate trajectory analysis specific to the area in which the facility is located." (106) The petitioners also faulted the worst-case analysis for its reliance on data generated during a previous MMS oil spill-risk analysis conducted for a federal sale in an area overlapping the Northstar reserve. The court rejected this argument, holding that MMS "made a reasoned judgment that the data was relevant." (107) Although FWS also objected to the EIS omission of a site-specific analysis, the Ninth Circuit held that MMS took the requisite "hard look" with respect to direct and indirect effects of Northstar. (108)

The petitioners next alleged that the EIS inadequately analyzed cumulative impacts of the DDP because MMS did not follow the methodology outlined in the Council of Environmental Quality's guidance handbook. (109) The court rejected the petitioners' reliance on the handbook, calling the handbook not legally binding. The court then considered five areas where the petitioners alleged deficient cumulative impacts analysis: freshwater, gravel, air quality, vegetation, and subsistence.

First, the petitioners alleged that the EIS failed to consider the cumulative impacts on freshwater resulting from drawdowns of millions of gallons to build the icy roads. Although the petitioners properly noted that the EIS "overlooked" the 5.9 to 7.8 million gallons of water required to connect Seal Island to the coast, the court was "not persuaded ... that such omission [was] material." (110) Correcting the amount of water withdrawn brought the total to 18.9 to 22.8 million gallons, which was still less than the 100 million-gallon limit imposed by Alaska for withdrawals from the Kuparuk Deadarm mine site, the probable source of freshwater for the BPXA icy roads. The petitioners further alleged that the cumulative impacts analysis failed to consider the combined effects of other drawdowns in conjunction with the proposed BPXA drawdowns. Although the court agreed that the EIS "could have explained existing drawdowns," the court found no evidence to suggest that such other drawdowns existed. (111) Accordingly, the Ninth Circuit refused to hold that the omission rendered the EIS inadequate. Finally, the petitioners alleged that the EIS inadequately analyzed the effects of the drawdowns on birds and vegetation. Because the EIS stated that impacts on water quality were negligible, the court concluded that the absence of further discussion was reasonable.

Second, the petitioners alleged that the EIS failed to consider the cumulative impacts of past and ongoing gravel extraction in conjunction with the proposed extraction to construct Seal Island. Because the EIS compared the impacts of gravel extraction from several alternative sites and concluded that extraction from existing sites could disrupt whale migration and fish and bird habitat, the court held that the EIS adequately addressed the environmental impacts of gravel extraction.

Third, the petitioners claimed that the EIS was inadequate with respect to cumulative effects on air quality because the EIS failed to analyze the effects of future industrial development on Arctic haze. The court rejected this claim, holding that the EIS could conclude that European pollution caused Arctic haze and thus failure to analyze impacts of the BPXA project on Arctic haze was "reasonable." (112) The petitioners also alleged that the EIS improperly concluded that impacts on air quality would be insignificant because pollutant concentrations would remain below National Ambient Air Quality Standards (NAAQS). (113) However, because the area already met NAAQS, the petitioners argued that the EIS should analyze degradation of air quality. The court rejected this claim as well, stating that once BPXA commenced construction and drilling, those activities would trigger review under the Clean Air Act (CAA) (114) provisions governing the prevention of significant deterioration in NAAQS attainment areas. (115) The petitioners also challenged the EIS because it failed to discuss new PM2.5 or ozone standards. Noting that the new standards had not taken effect, the court determined that the EIS's air-quality analysis was reasonable.

Fourth, the petitioners alleged that the EIS failed to analyze the cumulative effects on birds and caribou of past wetland destruction in conjunction with the effects of proposed wetland destruction. The court compared the proposed two-acre tundra "consumption" with past tundra losses of fourteen square miles to determine that the EIS could reasonably conclude that cumulative tundra loss "`would be small.'" (116)

Fifth, the petitioners claimed that the EIS failed to address adequately the impacts of the BPXA proposal on Inupiat subsistence hunting. Because the EIS examined impacts on bowhead whales and caribou, the court held that the EIS's reliance on elevating the pipeline to mitigate significant effects on caribou harvests was reasonable. Turning to the OPA claims, the Ninth Circuit determined that it lacked jurisdiction to review the claims because OPA provisions confer jurisdiction to review spill response plans on the district court.

3. Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001), amended by 282 F.3d 1055 (9th Cir. 2002), petition for cert. filed (June 6, 2002) (No. 01-1800).

The Fish and Wildlife Service (FWS) issued a final environmental impact statement (FEIS) concerning its implementation of section 206(a) of the Truckee-Carson-Pyramid Lake Water Rights Settlement Act (Settlement Act). (117) As mandated under section 206(a) of the Settlement Act, FWS developed a plan to acquire water and water rights to protect approximately 25,000 wetland acres in the Lahontan Valley in Nevada. After FWS published the FEIS for the plan, Churchill County and the City of Fallon, Nevada sued Norton and others claiming FWS had violated the National Environmental Policy Act (NEPA). (118) The plaintiffs challenged FWS's decision not to prepare a comprehensive environmental impact statement (EIS) that would have analyzed the cumulative impacts of the Settlement Act's interrelated provisions concerning water allocation. The plaintiffs also claimed that the analysis in the FEIS was inadequate. The Ninth Circuit upheld the district court's decision to grant the defendants' motions for summary judgment.

Congress passed the Settlement Act to resolve disputes concerning water rights in the Truckee and Carson Rivers. (119) The Act's purposes include consideration of state interests, fish and wildlife needs, municipal uses, and the Pyramid Lake Pauite Tribe's interests. (120) Among those impacted by allocation decisions for these rivers are the residents of Churchill County-particularly those in the City of Fallon, who rely on the rivers for agricultural irrigation water. Irrigation water also recharges the wells used by the city for its municipal water system.

Various provisions of the Settlement Act address issues of water allocation and harms resulting from overuse. For example, section 205 requires the Secretary of the Interior to establish an agreement with California and Nevada for managing the Truckee River basin's reservoirs. (121) Section 209 requires revision of the Newlands Reclamation Project, a Bureau of Reclamation project to irrigate a large portion of the land in the Fallon area. (122) Section 206(a) in particular attempts to remedy the harm caused to the Lahontan Valley Wetlands by water overusage. The diversion of water from the Carson River for agricultural use has limited the inflow available to these wetlands, causing many of them to dry up. Under section 206(a), the Secretary of Interior must acquire water and water rights adequate to maintain about 25,000 acres of wetlands. (123) To meet this requirement, FWS chose from five alternative plans detailed in its draft environmental impact statement. Under the selected plan, FWS would purchase up to 55,000 acre-feet of water rights from willing sellers. Other methods of acquiring water included using treated sewage water and conserved Navy water if available. The chosen alternative was intended to limit the impacts upon agricultural water needs.

The City of Fallon was concerned that the Settlement Act could limit the water supply to the city. Plaintiffs argued that FWS's actions violated NEPA for two reasons: 1) FWS should have prepared a programmatic EIS concerning all provisions of the Settlement Act that related to water allocation and usage for the Newlands Project; and 2) the FEIS was inadequate because it failed to address effectively cumulative impacts, it failed to address sufficiently groundwater impacts because it relied on incomplete studies, and it severed the wetland conservation from the analysis.

In response to the first claim, the Ninth Circuit held that FWS's decision not to prepare a programmatic EIS was not arbitrary and capricious. The district court had decided that sections 205, 206, 207, 209, and 210(b)(16) of the Settlement Act were not closely related or connected actions, and FWS was not required to analyze the sections' impacts in a comprehensive EIS. Federal regulations require that very closely related actions be analyzed in a single EIS. (124) Regulations also require a programmatic EIS for programs that include "systematic and connected agency decisions allocating agency resources to implement a specific statutory program." (125) Nevertheless, the court indicated that according to Kleppe v. Sierra Club, (126) a programmatic EIS is not required where an actual proposal for broad action had not been made. (127) However, where several proposals are before an agency, the agency must consider their impacts together if the impacts will cumulatively impact a region. Federal regulations also require consideration of cumulative actions in one EIS. (128) The Ninth Circuit discussed three additional cases (129) in which the law concerning programmatic EISs since Kleppe has developed.

In this case, the plaintiffs argued that the interrelated provisions of the Settlement Act were a regional plan for water use of the Truckee and Carson rivers. The court agreed that these provisions all concerned water allocation and that different sections will claim Newland Project water, potentially creating cumulative impacts. In addition, the court indicated that several agency actions concerning these provisions were "proposals" as defined by NEPA. (130) The Ninth Circuit concluded that it would have been reasonable for the agencies to have analyzed the interrelated Settlement Act provisions in a comprehensive EIS. Nevertheless, the court found that the decision to prepare a comprehensive EIS belonged to the FWS and that the FWS's decision was not arbitrary because the agency had not broken implementation of the Settlement Act into separate actions to minimize the significance of cumulative impacts.

In response to the plaintiffs' second claim concerning the adequacy of the FEIS, the Ninth Circuit held that FWS sufficiently analyzed the impacts of the plan to acquire water rights. The court rejected the plaintiffs' claim that FWS did not assess the cumulative impacts of other foreseeable Settlement Act implementation actions in the FEIS. The court explained that FWS was required to analyze specifically the cumulative impacts of past, present, and future actions so that it could decide if and how to reduce such impacts. The Ninth Circuit found the FEIS's analysis legally sufficient, noting that the FEIS discussed the effects of relevant Settlement Act provisions upon a variety of environmental resources.

The court also rejected the plaintiffs' claim that the FEIS was inadequate because of an insufficient analysis of groundwater impacts. Although FWS indicated that additional studies of groundwater resources were necessary, the court concluded that the current studies upon which FWS relied, including a study of recharge areas and a groundwater conceptual model, were sufficient for the FEIS analysis. Finally, the court indicated that the plaintiffs failed to demonstrate that FWS's decision to exclude the wetlands conservation plan in the FEIS was arbitrary and capricious.

In a concurring opinion, Judge Sneed explained that while a comprehensive EIS was not required, an EIS was necessary to find a comprehensive resolution of the water allocation issues involved.

4. Kern v. United States Bureau of Land Management, 284 F.3d 1062 (9th Cir. 2002).

The plaintiffs appealed the district court's grant of summary judgment to defendant United States Bureau of Land Management (BLM). The plaintiffs had challenged the adequacy of an environmental impact statement (EIS) and an environmental assessment (EA) for the Coos Bay Resource Management Plan (RMP) and the Sandy-Remote Analysis Area respectively, both of which were within the Coos Bay District. The district court found that the EIS claim was not ripe and it rejected the EA challenge, granting summary judgment to defendants on both claims. On appeal, the Ninth Circuit held the EIS claim ripe and both the EIS and EA inadequate under the National Environmental Policy Act (NEPA). (131) The court thus reversed the district court and directed summary judgment be entered for the plaintiffs.

When timber sales were slated to for Coos Bay RMP and the Sandy-Remote Analysis Area, the plaintiffs challenged the sufficiency under NEPA of the EIS and the EA for the respective sales. Germane to the plaintiffs' challenge was whether BLM had sufficiently considered possible spreading of the root fungus Phytophthora lateralis to the area's Port Orford Cedars. The fungus was susceptible to spreading due to logging activities, and cedars infected by the fungus usually die. The defendants first argued that the plaintiffs' challenge was premature under Ohio Forestry Ass'n v. Sierra Club (Ohio Forestry). (132)

The Ninth Circuit distinguished the immediate case from Ohio Forestry. Whereas the plaintiffs in Ohio Forestry alleged that the relevant RMP violated the National Forest Management Act (NFMA), (133) (the statute requiring the RMP), the plaintiffs in the instant case claimed that the EIS violated NEPA. NEPA confers procedural rights, and because the plaintiffs alleged a procedural injury, the instant claim possessed the imminency that Ohio Forestry lacked and therefore was ripe.

The defendants then argued that under NEPA, they were not required to include as part of the EIS a detailed environmental analysis of the fungus and the cedar until resources were committed to the sale. The Ninth Circuit disagreed, noting that one function of the EIS is to evaluate environmental consequences of contemplated plans. The plaintiffs claimed that the EIS was inadequate because it merely "tiered" (134) to the Port Orford Cedar Management Guidelines ("Guidelines"), a document never subjected to NEPA review. While tiering is generally permitted, tiering to a document not subjected to NEPA review is not permitted. Without the Guidelines, the EIS was left with a two-sentence discussion of the fungus's potential impact on the cedars, which the Ninth Circuit deemed inadequate.

Next, the plaintiffs challenged the adequacy of the Sandy-Remote EA. Of the three claims raised by the plaintiffs, the Ninth Circuit agreed with two, The court held that the EA improperly tiered to the Guidelines and also failed to address the cumulative impact of the timber sale and "other `reasonably foreseeable future actions' on the Cedar." (135) Specifically, but not exclusively, the Ninth Circuit found that BLM should have considered all reasonably foreseeable timber sales under the RMP for the district. In addition to the cumulative impact analysis required for the RMP for the Coos Bay District, the Ninth Circuit required BLM to conduct a cumulative impact analysis in all EAs for the site-specific project in the Coos Bay District. Because the Sandy-Remote EA did not consider cumulative impacts from all reasonably foreseeable actions and because the Coos Bay EIS was inadequate under NEPA, the Ninth Circuit reversed the district court decisions and remanded with instructions that summary judgment be entered for the plaintiffs on both issues. The dissent considered the cumulative impacts analysis in the EA for the Sandy-Remote Area permissibly limited to the area itself and concluded that the EA was not, therefore, an arbitrary and capricious limitation on the scope of the analysis.

G. Waste Management

1. AGG Enterprises v. Washington County, 281 F.3d 1324 (9th Cir. 2002), petition for cert. filed, (U.S. June 6, 2002) (No. 01-1805).

The district court granted AGG Enterprises (AGG) a permanent injunction against the city of Beaverton (Beaverton), Oregon and Washington County, Oregon (defendants) enjoining the defendants "from enforcing their trash-hauling regulations against plaintiff ... AGG." (136) The district court found that [section] 14501(c) of the Federal Aviation Administration Authorization Act of 1994 (FAAAA) (137) preempted local regulation of "motor carriers" (138) hauling mixed solid waste. The defendants appealed, and the Ninth Circuit reversed, vacated the injunction, and remanded.

AGG collected construction refuse, including loads of mixed solid waste (MSW), which contained garbage and recyclable waste. The MSW that AGG collected consisted of between fifty and ninety percent recyclable materials. The remaining portion was trash. AGG brought its loads of MSW to a material recovery facility that sorted the MSW, recycled the recyclable materials, and disposed of the trash. AGG operated in Beaverton, a city that regulates trash collection by using exclusive franchises. To haul trash in Beaverton or in Washington County, a hauler must have a license or certificate from these defendants. Because AGG did not have a license, Beaverton issued AGG a citation. After Beaverton indicated that it would not take action on AGG's application for a garbage-hauling license, AGG brought suit against the defendants seeking a permanent injunction. The district court granted the injunction, holding that the defendants could not enforce their trash-hauling regulations against AGG because the MSW that AGG hauled was property. Therefore, because the FAAAA limited local regulation of motor carriers hauling property, the FAAAA preempted the defendants' regulation of AGG.

On appeal, the defendants argued that Congress did not intend to preempt local regulation of MSW collection when it passed the FAAAA. The Ninth Circuit agreed. According to the court, federal preemption of local law "may be either express or implied." (139) Congress's intent to preempt can be explicitly expressed in the statute's language or implied through the statute's structure and purpose. (140) The court indicated, however, that a presumption exists against federal preemption, (141) particularly in areas that are traditionally locally regulated, including areas usually controlled by local police power. (142) The court explained that garbage collection typically has been regulated locally, and that the court previously indicated that local regulation was important to protect health and safety in local communities. (143) The court stated that to find that the FAAAA preempted local regulation of MSW collection, it must find a "clear and manifest" congressional intent to preempt. (144)

To determine whether Congress intended to preempt local regulation of hauling MSW, the court examined the text of the FAAAA as well as the Act's structure and purpose. According to section 14501(c) of the FAAAA, a "political subdivision of a State ... may not . enforce a ... regulation ... related to a price, route, or service of any motor carrier ... with respect to the transportation of property." (145) The court pointed out that Congress did not define the word "property" in the statute. Therefore, the court examined the legislative history of the FAAAA to determine whether Congress intended the FAAAA to preempt local regulation of MSW. The court explained that the legislative history indicated that garbage collectors would not be covered by section 14501(c). (146) According to the legislative history, at the time the FAAAA was passed, the Department of Transportation believed that, according to Interstate Commerce Commission (ICC) case law, garbage was not property. (147) Congress believed that section 14501(c) would not cover garbage haulers. (148) According to the Ninth Circuit, however, ICC case law was "equivocal as to whether [garbage] could be `property'" (149) Nevertheless, the court explained that in determining Congress's intent, it was only important whether Congress believed that the FAAAA would preempt local regulation of garbage at the time it was passed, not whether ICC case law actually found that garbage could be property.

AGG argued that MSW was property under ICC case law and therefore, according to section 14501(c), could not be locally regulated, regardless of Congress's intent at the time of passing the FAAAA. The court rejected this argument, finding that even if portions of the MSW were recyclable and thus might be property, at least ten to twenty percent of the MSW was garbage. Therefore AGG hauled thousands of tons of garbage. The Ninth Circuit did not find a "clear and manifest" intent of Congress to preempt local regulation of garbage hauling, even if the garbage contained recyclables. (150) As AGG's MSW contained a large amount of trash, the court held that Congress did not intend to preempt local regulation of AGG's MSW collection.

The court pointed out that its decision was consistent with the California Court of Appeals' decision in Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (Pleasant Hill). (151) The Ninth Circuit agreed with the Pleasant Hill conclusion that there was "nothing in the language or legislative history of [section 601(c) of the FAAAA] giving the least credence to [the MSW hauler's] claim that Congress intended to make itself the sole authority in a field where local authority has been traditionally accepted as preeminent." (152) The Ninth Circuit reversed the district court's decision, vacated its injunction, and remanded the case.

H. FIFRA

1. Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199 (9th Cir. 2002), infra Part. V. G.

II. NATURAL RESOURCES

A. Endangered Species Act

1. Environmental Protection Information Center v. Simpson Timber Co., 255 F.3d 1073 (9th Cir. 2001).

At issue in this case was whether the Fish and Wildlife Service (FWS) retained sufficient discretionary control over an incidental take permit issued to Simpson Timber to require FWS to reinitiate consultation with itself when two additional species found on Simpson Timber's land were listed as threatened after the permit was issued. The Environmental Protection Information Center (EPIC) sued to enjoin logging on Simpson's 380,000 acres of timberland until FWS reinitiated and completed consultation regarding the potential effect of Simpson's incidental take permit for the northern spotted owl on the newly listed marbled murrelet and coho salmon. The district court dismissed EPIC's claim on Simpson's 12(b)(6) motion. The Ninth Circuit reviewed the matter de novo and affirmed the district court's dismissal.

Regulations implementing section 7 of the Endangered Species Act (ESA) (153) require an agency to reinitiate consultation where "discretionary Federal involvement or control over the action has been retained or is authorized by law and ... [i]f a new species is listed or critical habitat designated that may be affected by the identified action." (154) In the present case the identified action was the thirty-year incidental take permit issued by FWS to Simpson Timber in 1992 allowing Simpson to take a limited number of northern spotted owls during logging operations.

The court concluded that determining whether FWS retained discretionary involvement or control over Simpson's incidental take permit turned on whether the agency had retained the power to "implement measures that inure to the benefit of the protected species." (155) The court found that nothing in the permit documents gave FWS authority to implement measures to benefit species other than the spotted owl.

The permit documents in question included FWS's biological opinion letter and the habitat conservation plan (HCP) and implementation agreement (IA) submitted by Simpson as conditions of the permit. EPIC argued that a passage in the HCP wherein Simpson promised to submit timber harvest plans (THPs) designed to "`ensure compatibility with the habitat requirements of other species ... considered sensitive by state and federal regulatory agencies'" required Simpson to implement measures to benefit any species listed after the HCP was granted. (156) The court rejected this argument because the passage applied only to species listed when the permit was issued. The court also rejected EPIC's argument that a regulation allowing FWS "to amend any permit for just cause" (157) provided the federal discretion triggering FWS's duty to reinitiate consultation, stating that the discretion must have been retained by the permit language in the first place for this regulation to have effect.

Finally, the court pointed out that although the conditions of Simpson's incidental take permit did not require FWS to reinitiate consultation regarding the marbled murrelet or coho salmon, Simpson is not allowed wider the ESA to take those species. Furthermore, under section 9 of the ESA, either FWS or EPIC could seek relief if the marbled murrelet or coho salmon were threatened with imminent harm by Simpson's logging activities. In such a circumstance FWS would have the authority to revoke Simpson's spotted owl permit because activities covered by the permit were being conducted in violation of the ESA.

The dissent argued that the majority impermissibly read a new requirement into the ESA regulation quoted above, a requirement unwarranted by statute, unsupported by the permit documents, and inconsistent with Ninth Circuit precedent. The dissent stated that the ESA regulation "does not require the parties to anticipate the specific purpose for which discretion may be exercised in order for there to be sufficient discretionary control that it can benefit a newly listed species." (158)

The dissent identified multiple sources of discretion authorizing FWS to reconsider Simpson's permit. Specifically, a regulatory phrase written into the permit "reserve[d] the right to amend any permit for just cause at any time during its term." (159) The implementation agreement stated that nothing in the permit limited the government's authority or responsibility to fulfill its responsibilities under the ESA. (160) The dissent concluded that "[t]hese sources of discretion, together with the promises made by Simpson in its HCP, provide sufficient remedial authority for FWS to implement measures that inure to the benefit of the marbled murrelet and coho salmon," (161) thereby satisfying the condition of retained federal discretion that triggers FWS's duty to reinitiate consultation.

2. Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).

The plaintiffs, environmental groups and individuals, (Defenders) appealed a district court decision upholding a decision of the Secretary of the Interior (the Secretary) to withdraw a proposed rule to list the flat-tailed homed lizard as a threatened species under the Endangered Species Act (ESA). (162) The flat-tailed homed lizard, Phrynosoma mcallii, is a desert-dwelling species that inhabits areas of California, Arizona, and Mexico. In 1993 the Secretary published a proposed rule to protect the species under the ESA, about eleven years after the Secretary first identified it as a candidate for listing. Following a May 1997 district court order compelling the Secretary to decide the lizard's status, on July 15, 1997 the Secretary issued her decision not to designate the lizard as a threatened species. Defenders challenged the decision in district court. The district court granted summary judgment for the Secretary, holding that the Secretary reasonably relied on a conservation agreement signed by a group of federal and state agencies to decide that none of the statutory factors that would require the listing of the lizard were present. (163) On appeal, the Ninth Circuit reversed the district court's ruling, holding that the Secretary's decision to withdraw the rule was arbitrary and capricious.

The ESA provides five factors upon which the Secretary should base her decision to designate a species as threatened. (164) Defenders argued that up to four of these five factors were present. The Secretary countered that even if the species faced significant threats on private lands, public land would provide significant habitat for the species, and that measures undertaken on public land would protect the species adequately. In particular, the Secretary indicated that a recent conservation agreement, signed by a group of federal and state agencies, would reduce threats to the lizard. The conservation agreement created a management strategy for the lizard that included the designation of five "management areas" in which specific actions, such as population monitoring, would be undertaken to protect the lizard.

In analyzing these arguments, the Ninth Circuit focused on the meaning of the statutory phrase "in danger of extinction throughout ... a significant portion of its range." (165) The ESA defines a species as endangered if it "is in danger of extinction throughout all or a significant portion of its range." (166) A threatened species is one that "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (167) The Secretary's final decision withdrawing the proposed rule did not consider whether the lizard was extinct, endangered, or likely to become endangered in "a significant portion of its range." (168) Instead, based upon her interpretation of the phrase "extinction throughout ... a significant portion of its range," (169) the Secretary argued on appeal, that a species is threatened only if the entire species is threatened, either because the species is currently threatened over all of its range or because the portions of its range in which the species is extinct, endangered, or threatened are significant enough that the entire species is likely to become threatened. Therefore, because of the large amount of available public land, the danger to the lizard on private land was not significant enough to threaten the entire species.

The court disagreed with the Secretary's interpretation of the phrase. The court stated that the Secretary's explanation would render the statute redundant because a species threatened over "a significant portion of its range" would also be a species threatened "throughout all ... of its range." (170) The court explained that it must "follow a `natural reading ..., which would give effect to all of [the statute's] provisions." (171) Therefore, the court could not interpret the term "all" and the phrase "a significant portion" to mean the same thing. The Secretary also argued that Congress included the "significant portion of its range" language in an attempt to conserve species at an early stage, before facing endangerment throughout its entire range. The court disagreed, stating that Congress addressed the need to conserve a species early--before it becomes close to extinction--by creating the "threatened" designation in addition to the "endangered" designation.

However, the court also did not agree with Defenders' interpretation of the phrase. Defenders used a quantitative approach, arguing that the lizard is threatened in "a substantial portion of its range" because it is projected to lose eighty-two percent of its habitat. (172) Defenders argued that because other courts had held that smaller losses of habitat were sufficient to necessitate listing of other species, the lizard also should be listed. The Ninth Circuit disagreed because (1) the argument suggested a species necessarily would be threatened or endangered simply because a certain percentage of the species range was lost, and (2) had Congress intended to use quantitative criteria to determine when to designate a species as endangered or threatened, it would have included the criteria in the statute.

The Ninth Circuit turned to legislative history to determine what Congress intended the phrase "extinction throughout ... a significant portion of its range" to mean. (173) The court explained that Congress used this language to expand the definition of "endangered" that had been used in previous endangered species acts. Congress intended to provide a means by which the Secretary can designate a species as endangered or threatened in one portion of its range while using a different designation, or declining to the list the species at all, in another portion of its range. Based upon this interpretation of the phrase, the court determined that when the Secretary determined that the lizard should not be listed as threatened she overlooked a crucial consideration: whether the lizard's range on private lands is a "significant portion of its range" and if so, whether the lizard is therefore in danger of "extinction throughout ... a significant portion of its range." (174) The Secretary also failed to consider whether the lizard might be threatened in one state or subportion of a state, but not in another state.

In addition, the court criticized the Secretary's reliance on the conservation agreement. The court stated that the Secretary failed to address how each management area would benefit the species, especially considering that implementation of some of the management areas had been delayed. The Secretary's explanation of the conservation agreement's benefits was not adequate to address the possibility that the lizard might be threatened throughout "a significant portion of its range." (175)

Based upon the Secretary's inadequate explanation of the benefits of the conservation agreement and the Secretary's failure to address whether the lizard was threatened throughout "a significant portion of its range," (176) the Ninth Circuit held that the Secretary's decision to withdraw the proposed rule to list the lizard as threatened was arbitrary and capricious. The Ninth Circuit reversed the district court and remanded to the Secretary for reconsideration.

3. Pacific Coast Federation of Fishermen's Ass'ns v. National Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001).

The Ninth Circuit affirmed in part and vacated in part a decision by the district court for the Western District of Washington to grant declaratory and injunctive relief to the Pacific Coast Federation of Fishermen's Associations and five other environmental organizations (Fishermen). Fishermen challenged as defective the biological opinions issued by the National Marine Fisheries Service (NMFS) in conjunction with twenty-three timber sales proposed for the Umpqua River Basin. Fishermen successfully alleged that under the Endangered Species Act, (177) NMFS acted arbitrarily and capriciously in reaching its "no jeopardy" conclusion with respect to the potential effects of the proposed timber sales on the Umpqua River cutthroat trout and the Oregon Coast coho salmon. (178)

Douglas Timber Operators (Douglas) and the Northwest Forestry Association were intervenor-defendants in the original suit (179) who, upon appeal, alleged that the biological opinions issued by NMFS were not final appealable agency decisions under the Administrative Procedure Act. (180) Douglas reasoned that because the United States Bureau of Land Management (BLM) and the United States Forest Service (USFS) had approved the timber sales, BLM and USFS, not NMFS, were the proper defendants. Thus, Douglas argued that venue in the Western District of Washington was improper because both agencies have headquarters in Portland, within the District of Oregon.

The Ninth Circuit rejected Douglas's argument to find that venue was proper, applying the reasoning of Bennett v. Spear, (181) which held that a jeopardy opinion was a final appealable agency action. Although Bennett dealt with a "jeopardy" opinion, the Ninth Circuit found "no authority for the proposition that while a `jeopardy' opinion is reviewable as a final agency action, a `no jeopardy' opinion is not final and reviewable." (182) The Ninth Circuit then applied the Bennett two-part test to determine whether NMFS's "no jeopardy" biological opinions were final agency actions. The court found that NMFS's biological opinions marked the "consummation" of the consultation process and altered the "legal regime" by granting "immunity to the proposed actions of other agencies required to obtain an NMFS opinion before proceeding with their own actions." (183)

The Ninth Circuit then turned to the aspects of Fishermen's claim challenged by NMFS on appeal, namely whether NMFS had acted arbitrarily and capriciously by (1) assessing each proposed timber sale's compliance with the Aquatic Conservation Strategy (ACS) of the Northwest Forest Plan only at the watershed level, thereby ignoring local and cumulative impacts; (2) focusing on long-term rather than short-term ACS compliance; and (3) determining that logging in riparian reserves would not violate ACS standards.

In its determination of ACS consistency, NMFS used a watershed level of analysis rather than a project-site level of analysis. Thus, project degradation undetected at the watershed scale was presumed consistent with the ACS, and NMFS used this presumption to justify its "no jeopardy" determination. Fishermen alleged this watershed analysis effectively "mask[ed] all project level degradation" and ignored the cumulative impacts of the proposed timber sales. (184) NMFS argued that the watershed scale was proper because the overall objective of the ACS, as paraphrased by the Ninth Circuit, is "to maintain and restore ecosystem health at watershed and landscape scales to protect habitat for fish and other riparian-dependent species and resources and restore currently degraded habitats." (185) The Ninth Circuit rejected NMFS's narrow reading of the purpose of the ACS, stating that preventing project site degradation and restoring habitat could not be achieved if "cumulative effect[s] of individual projects on small tributaries within watersheds" were ignored. (186) In fact, the court found "no proof" that NMFS evaluated the cumulative impacts of the proposed timber sales when it reached its no jeopardy opinion at the regional watershed level. (187) The court then warned that if NMFS did not aggregate the impacts of individual projects, then NMFS's ACS consistency determination at the watershed level assumed that "no project will ever lead to jeopardy of a listed species." (188) The Ninth Circuit affirmed the district court, holding that when NMFS ignores local degradations with significant cumulative impacts it acts arbitrarily and capriciously.

Fishermen also alleged that NMFS's use of a ten-to twenty-year time frame to assess ACS consistency ignored the short-term environmental impacts of the proposed timber sales and led to the false presumption that passive mitigation would alleviate adverse effects on fish habitat. Again, the Ninth Circuit affirmed the district court, finding "nothing in the record to authorize NMFS to assume away significant habitat degradation." (189) Recognizing that anadromous fish have uniquely fragile life histories, the court found that the lengthy time frame used by NMFS in its ACS consistency analysis was inadequate because ten years of habitat degradation could lead to the "total extinction of the subspecies that formerly returned to a particular creek for spawning." (190) The Ninth Circuit pointed to an earlier programmatic biological opinion in which NMFS recognized the vulnerability of anadromous species of the Umpqua River, stating that "`even a low level of additional impact ... may reduce the likelihood of survival and recovery.'" (191) The Ninth Circuit found NMFS's "choice not to assess degradation over a time frame that takes into account the actual behavior of the species in danger" unjustifiable. (192) With respect to passive mitigation, NMFS had predicted that any short-term or local effects of the timber sales would be mitigated over the next decade by regrowth. Fishermen alleged, and both the district court and Ninth Circuit agreed, that scientific evidence did not support, the conclusion that passive mitigation through regrowth would adequately mitigate degradation due to the timber sales and ensure that "fish that never hatched could return to the recovered spawning habitat." (193)

Finally, with respect to Fishermen's third claim, the Ninth Circuit vacated the district court's holding that NMFS had acted arbitrarily and capriciously in concluding that the proposed riparian reserve sales were consistent with ACS objectives. In upholding NMFS's ACS consistency determination with respect to these three timber sales, the Ninth Circuit acknowledged that one of the challenged timber sales fell under a "research exception" while the biological opinion stated that the other two proposed timber sales "were `not likely to adversely affect'" either salmonid species. (194)

4. Arizona Cattle Growers' Ass'n v. United States Fish and Wildlife, 273 F. 3d 1229 (9th Cir. 2001).

In two actions, plaintiffs challenged the United States Fish and Wildlife Service's (FWS) issuance of incidental take statements (ITSs) under the Endangered Species Act (195) (ESA) in connection with cattle grazing permits issued by the Bureau of Land Management (BLM) and the United States Forest Service (USFS). The Ninth Circuit affirmed the district court's decision in the first action, setting aside the ITSs as arbitrary and capricious. The Ninth Circuit affirmed in part and reversed in part the district court's decision in the second action, holding that all five of the challenged ITSs were arbitrary and capricious. The Ninth Circuit held that (1) a finding of incidental take must be made before FWS may issue an ITS; (2) FWS's issuance of ITSs with land-use conditions was arbitrary and capricious when FWS failed to provide evidence that the endangered species were present on the land or that the permits would result in any take; and (3) FWS's creation of overly vague terms and conditions was arbitrary and capricious.

In the first action, FWS had issued a biological opinion (BiOp) concluding that a rancher's grazing permits on BLM lands were unlikely to jeopardize or modify the critical habitat of twenty species of plants and animals. In connection with the BiOp, FWS issued ITSs for certain species, including the razorback sucker and the cactus ferruginous pygmy-owl. The plaintiffs challenged the statements and their terms and conditions for these two species, and the district court granted the plaintiffs' motion for summary judgment, finding both statements arbitrary and capricious because FWS failed to provide evidence that the species existed on the relevant grazing allotments. (196)

In the second action, FWS issued twenty-two ITSs in connection with grazing permits on USFS public lands. The plaintiffs filed suit objecting to six of these statements for six different allotments: the Cow Flat, East Eagle, Montana, Sears-Club/Chalk Mountain, Sheep Springs, and Wildbunch allotments. The district court found that FWS was arbitrary and capricious in issuing all of the ITSs except the ITS for the Cow Flat Allotment because FWS did not demonstrate that a take of the species involved was reasonably certain to occur. The court granted summary judgment as to those allotments. The court also granted FWS's motion for summary judgment regarding the Cow Flat ITS, holding that the conditions of the ITS were not arbitrary and capricious. FWS appealed the decisions under both actions, except for the decision regarding the Sheep Springs allotment, and the Arizona Cattle Growers' Association appealed the court's decision in the second action regarding the Cow Flat Allotment.

The Ninth Circuit first addressed FWS's claim that the word "taking" should be interpreted more broadly in section 7 of the ESA (197) than in section 9. (198) The court rejected this claim under a Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc. (199) analysis, holding that Congress had clearly spoken to the issue and that "taking" had the same meaning in both sections. FWS claimed that because section 7 (which requires government agencies to monitor their actions to limit harm to listed species) has a more protective purpose than section 9 (which imposes penalties for "taking" listed species) the term "taking" should have a broader meaning in section 7. Thus, a section 7 take might include possible or likely future harm rather than actual harm. However, the court found that, based upon the structure and legislative history of the relevant provisions, Congress indicated to the contrary. The court indicated that Congress added the ITS (200) to create a "safe harbor provision" whereby a "taking" that occurs incidental to an action already approved under section 7 would not subject the actor to penalties. (201) According to the court, a section 7 definition of "taking" other than the section 9 definition would not require this "safe harbor, provision." (202) The court also pointed out that FWS's broad interpretation of "taking" under section 7 would allow FWS to regulate land use when no "taking" that would violate section 9 had occurred.

The court next addressed FWS's argument that under the ESA, it must issue an ITS whenever it issues a "no jeopardy" BiOp. The Ninth Circuit held that this interpretation was "contrary to clear congressional intent." (203) Under section 7 of the ESA, FWS produces a BiOp after formal consultation to determine whether an agency's action is "likely to jeopardize the continued existence" of a listed species. (204) When FWS finds no jeopardy, an accompanying ITS provides measures necessary to limit the impact of takings that occur from the action. (205)

FWS claimed that the requirement that it provide "a written statement that ... specifies the impact of such incidental taking on the species" (206) meant that whenever FWS issues a "no jeopardy" opinion, it must provide a statement. The Ninth Circuit relied upon the canon of statutory construction that words must be interpreted in context to find that a statement is required only when FWS first finds that there will be an actual take. The court pointed out that its interpretation was consistent with the ESA's implementing regulations, which indicate that an ITS is provided "if such take may occur." (207) The court also explained that its interpretation was consistent with the legislative intent that the incidental take provision be used as a safe harbor because a safe harbor would not be necessary if no take had occurred. Finally, the court refused to defer to FWS's internal consultation handbook, which also stated that an ITS should be issued regardless of whether a take will occur. The court found that the handbook's guideline was contrary to the plain meaning of the ESA and its regulations.

In rejecting FWS's interpretation of the ITS provisions, the court held that "it is arbitrary and capricious to issue an ITS when the Fish and Wildlife Service has no rational basis to conclude that a take will occur incident to the otherwise lawful activity." (208) The court then examined each ITS to determine whether each was arbitrary and capricious. The court held that the ITS issued for the razorback sucker in connection with the first action was arbitrary and capricious because there was no evidence that the fish was present in the grazing allotment concerned. Within the last few years, no sightings of the fish had been reported. Any harm that would result to the fish because of habitat modification caused by grazing was speculative. The court indicated that FWS should not use ITSs to deal with prospective harm, and that related regulations demonstrated that FWS should reinitiate consultation if new harms are revealed after initial consultation. (209)

The Ninth Circuit found the ITS for the cactus ferruginous pygmy-owl arbitrary and capricious for similar reasons. FWS had not established that the owl existed in the involved allotment. Although FWS argued that new surveys demonstrated the presence of the owls, the court replied that it could not look beyond the administrative record and that FWS could deal with this new evidence by reinitiating consultation.

The court next held the ITSs from Arizona Cattle Growers' second action arbitrary and capricious for the Montana, Sears-Club/Chalk Mountain, East Eagle, and Wildbunch Allotments. The court indicated that the harms detailed in these statements were too speculative or lacked sufficient evidence. In the Montana Allotment, FWS anticipated harm to the Sonora chub even though cattle were excluded from the area that fish actually inhabited. For the Sears-Club/Chalk Mountain Allotment, the Gila topminnow existed only in an adjacent spring; the court stated that the potential for reintroduction or recolonization of the spring on the SearsClub/Chalk Mountain Allotment was too speculative. Evidence was insufficient to prove that the loach minnow or spikedace existed in the East Eagle Allotment. Finally, regarding the Wildbunch Allotment, the court found any evidence of harm to loach minnow caused by increased sedimentation from grazing to be too general. Again, the loach minnow did not actually use any portion of the allotment where grazing would actually occur.

The court, however, found that the ITS for the Cow Flat Allotment contained adequate evidence of the loach minnow's presence in the area, and the court declined to reject the statements as arbitrary and capricious for failure to show a take. According to the court, "[t]he specificity of the Service's data, as well as the articulated causal connections between the activity and the `actual killing or injury' of a protected species distinguishe[d]" this statement from the others. (210)

Nevertheless, the court found the Cow Flat Allotment's ITS arbitrary and capricious because it did not adequately indicate the amount of anticipated take or set forth a clear standard indicating when take would exceed that allowed. FWS had determined that incidental take of the loach minnow would be exceeded if ecological conditions did not improve after grazing began. The court explained that although FWS was not required to provide a numerical limit on take, the condition FWS set forth was too vague. In addition FWS failed to discuss adequately how this condition was causally related to takings of the species.

The court overturned the district court's conclusion that the Cow Flat Allotment's ITS was not arbitrary and capricious; thus the Ninth Circuit found all the challenged ITSs arbitrary and capricious.

4. Biodiversity Legal Foundation v. Badgley, 284 F.3d 1046 (9th Cir. 2002).

Eight environmental groups and several individuals (collectively "Biodiversity Legal Foundation") (211) appealed a district court decision (212) that the United States Fish and Wildlife Service (FWS) has discretion under section 4 of the Endangered Species Act (ESA) (213) to make initial findings beyond the twelve-month deadline imposed for final listing determinations under the ESA. (214) The Ninth Circuit reversed, holding that "the only way to interpret [section 4](b)(3)(A) (215) in harmony with [section 4](b)(3)(B) (216) is by limiting the [FWS's] discretion" under the former subsection by the deadline imposed in the latter. (217) FWS cross-appealed the district court's denial of its request for additional time to make final determinations. The district court had based its decision on a lack of equitable discretion to refrain from issuing injunctive relief. The Ninth Circuit affirmed that decision, holding that the "ESA forecloses the exercise of discretion when the agency misses ESA-imposed deadlines." (218)

In February 1995, Biodiversity Legal Foundation (BLF) filed a petition to list the Spalding's Catchfly as an endangered species. When BLF initiated suit in 1999, (219) FWS had yet to make an initial determination. In July 1995, BLF filed a petition to list the southern California population segment of the Mountain Yellow Legged Frog as an endangered or threatened species; by 1999 FWS had yet to make a final determination. In 1997, BLF petitioned to list the Great Basin Redband Trout as an endangered or threatened species; by 1999 FWS had yet to make a final determination. In 1998, BLF petitioned to list the Yellow Billed Cuckoo as endangered; by 1999 FWS had yet to act on the petition.

The Ninth Circuit began its decision with an overview of the ESA's framework, relying on Oregon Natural Resources Council, Inc. v. Kantor (220) to note that while FWS has discretion to extend initial determinations beyond ninety days, FWS must make a final determination within twelve months of receiving the listing petition. The court then considered FWS's allegations that BLF lacked standing and that BLF's claims were moot because FWS had made final decisions to list the species at issue. With respect to standing, the court held that BLF's "desire to use, observe, and study the stated plant and animal species is undeniably a cognizable interest for purposes of standing," (221) and BLF faces "specific and concrete" injury because FWS's failure to list the species at issue would "result in continued threats to their existence." (222) The court also recognized that BLF had standing to challenge the general pattern of delay under the listing program and determined that the Declaratory Judgment Act (223) gave the district court authority to grant declaratory relief because of the controversy concerning the proper interpretation the ESA's listing timeline and the number of analogous suits pending in other federal courts. With respect to mootness, the Ninth Circuit again rejected FWS's claims, reiterating that BLF sought two remedies: to compel FWS to make the listing determinations and to declare that section 4 requires FWS to make final determinations within twelve months of receiving a petition. In response to the district court order, FWS completed the listing decisions. However, the Ninth Circuit noted that FWS's interpretation of the ESA allowed the agency to "delay action indefinitely." (224)

The court then addressed BLF's claims. It rejected FWS's interpretation of the section 4 provisions as contrary to clear congressional intent to shorten the process for listing species. According to FWS, the 90-day time limit in section 4(b)(3)(A) is independent of the one-year time limit in section 4(b)(3)(B), and if the agency decides that an initial determination is impracticable, the agency may delay making a listing decision indefinitely. The court decided that such an interpretation would render section 4(b)(3)(B) inoperative, and the only way to give effect to both subsections of the ESA is to apply the one-year deadline to both the initial and final determinations. Ultimately, the Ninth Circuit decided that Congress intended to limit the flexibility of initial determination deadlines by imposing firm deadlines for final determinations.

Finally, the Ninth Circuit turned to FWS's allegations on cross-appeal, namely that the district court erred in determining that it had no discretion with respect to enjoining FWS to meet its statutory deadlines. FWS also argued that the court should consider FWS priorities when deciding whether the agency's action was "unlawfully withheld" or "unreasonably delayed." (225) The district court had relied on the holdings in Forest Guardians v. Babbitt (226) to decide that when the agency fails to comply with a nondiscretionary statutory deadline, the agency has unlawfully withheld action and the Administrative Procedure Act (227) requires the court to issue an injunction. In deciding whether the district court erred in granting the injunction, the Ninth Circuit reviewed the decision for abuse of discretion (228) while reviewing the legal rulings on which the district court relied de novo. (229) Although a statutory violation does not automatically lead to an injunction, the "test for determining if equitable relief is appropriate is whether an injunction is necessary to effectuate the congressional purpose behind the statute." (230) Because Congress had already balanced the equities "in favor of affording endangered species the highest of priorities," (231) the court had no discretion to consider FWS priorities before issuing the injunction.

B. Fish and Wildlife

1. Myers v. American Triumph F/V, 260 F.3d 1067 (9th Cir. 2001).

The plaintiffs appealed the district court's dismissal of their in rem class action suit in admiralty against a fishing vessel, the F/V American Triumph (the Vessel). The United States Coast Guard issued a certificate of documentation and fishery endorsement (Certificate) to the Vessel in 1986. The Certificate permitted the Vessel to engage in the fishing trade. In 1998, the Coast Guard determined that the Vessel did not meet the requirements for a vessel used in United States fisheries (232) and issued a notice of intent to cancel the Certificate. However, before the Coast Guard invalidated the Certificate, Congress passed the American Fisheries Act (Act). (233) The Act contained a provision excepting the Vessel from the normal requirements that would have prohibited the Vessel from participating in the fishing trade. (234) Despite the renewed validity of the Vessel's Certificate, the plaintiff brought an admiralty action against the Vessel for conversion of fish, and for intentional and negligent interference with business opportunity, misrepresentation, and unjust enrichment. The district court dismissed the action. On appeal, the Ninth Circuit held that "the Vessel had an incontrovertible right to take fish during the years in question" and affirmed the district court's decision. (235)

The court focused on whether the Vessel's certificate entitled the Vessel to engage in the fishing trade during the period that the plaintiff claimed the vessel was converting fish. The Coast Guard issues certificates to vessels pursuant to 46 U.S.C. [subsection] 12101-12122. (236) These statutory sections provide the qualifications a vessel must meet to engage in a specific trade, and in particular, the fishing trade. (237) In addition, section 12104(2) states that once a certificate is issued, it is "conclusive evidence of qualification to be employed in [the fishing] trade." (238) The court stated that this section is not open for judicial interpretation because the language of the statute clearly states that a certificate is incontrovertible evidence that the vessel is entitled to engage in the fishing trade and the canons of statutory construction prohibit the court from looking further than the text to determine the meaning of a clear statute. The court stated that by passing this statute, Congress limited the ability of parties to challenge a vessel's right to fish once the vessel has obtained a certificate. Therefore, the Ninth Circuit affirmed the district court, holding that plaintiffs did not have a private right of action to challenge the Vessel's taking of fish under the Certificate.

2. Midwater Trawlers Co-operative v. Department of Commerce, 282 F.3d 710 (9th Cir. 2002), infra Part IV.2.

3. United States v. LeVeque, 283 F.3d 1098 (9th Cir. 2002), infra Part III.3.

C. Forests

1. Pacific Coast Federation of Fishermen's Ass'ns v. National Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001), supra Part II.A.

D. Water Law

1. Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001), amended by 282 F.3d 1055 (9th Cir. 2002), petition for cert. filed (June 6, 2002) (No. 01-1800), supra Part I.F.

2. United States v. Morros, 268 F.3d 695 (9th Cir. 2001), infra Part V.I.

E. Hydroelectric Power

1. Friends of the Cowlitz v. FERC, 253 F.3d 1161 (9th Cir. 2001), amended by 282 F.3d 609 (9th Cir. 2002).

Two citizen groups, Friends of the Cowlitz and CPR-Fish, appealed an order by the Federal Energy Regulatory Commission (FERC) dismissing their request for enforcement action against the city of Tacoma (Tacoma). The Ninth Circuit dismissed the appeal because FERC's prosecutorial discretion under the Federal Power Act (FPA) (239) allows the agency to reject third-party requests for investigation or enforcement.

Tacoma owns and operates hydropower dams on the Cowlitz River in southwestern Washington under a license granted by FERC in 1951. In response to fierce opposition to licensing of the dams in the 1950s, Tacoma agreed to mitigate damage to salmon runs. Accordingly, FERC included mitigation measures in Tacoma's hydropower license. These measures are enforced by FERC and are legally binding in federal court. Third parties may also petition FERC to take enforcement action, and FERC's denial of such a petition is appealable in federal circuit court. In this case, FERC denied Cowlitz and CPR-Fish's petition for enforcement. The two groups appealed.

The petitioners argued that FERC's dismissal of their enforcement petition without a hearing was arbitrary because FERC's explanation did not correspond with the facts on record. In support of their claim, petitioners introduced evidence contradicting FERC's assertion that Tacoma had constructed the necessary fishways. Petitioners further argued that Tacoma had violated the terms of an agreement made pursuant to an article of the FERC license that required Tacoma to cooperate with the Washington Department of Fisheries and Wildlife. Specifically, the petitioners alleged that Tacoma had violated this agreement by failing to meet targeted fish-return levels during preceding years and had failed to build a second hatchery to correct those deficits. In response, FERC pointed out that the agreement was never formally incorporated into the license, and therefore was not binding on Tacoma.

The court agreed with the petitioners that Tacoma had continuously violated its license to the detriment of fish stocks. In light of these material issues of fact, FERC's dismissal of petitioners' request for enforcement action violated the agency's own summary judgment standard. (240) The court also rejected FERC's argument that the agreement did not have binding effect, on the grounds that the agreement was the only manifestation of the cooperation between Tacoma and other agencies mandated by the license article.

Despite holding that FERC's summary dismissal of the petitioners' complaint was "plainly erroneous as a matter of law," the Ninth Circuit dismissed the case rather than remanding the Commission's order. (241) The court used the reasoning in the Supreme Court case Heckler v. Chaney (242) to conclude that even if Tacoma's violations of the dam license were ongoing, FERC's decision not to prosecute was an "agency action ... committed to agency discretion by law" under the Administrative Procedure Act, and hence not subject to judicial review. (243) The petitioners' argument that FERC at least had an obligation to investigate alleged license violations also failed because FERC's investigatorial discretion is unreviewable for the same reason.

2. United States v. Morros, 268 F.3d 695 (9th Cir. 2001), infra Part V.I.

III. ENVIRONMENTAL CRIMES

1. United States v. Elias, 269 F.3d 1003 (9th Cir. 2001), petition for cert. filed, 70 U.S.L. W. (U.S. Apr. 4, 2002) (No. 01-1502), supra Part I.E.

2. United States v. Pearson, 274 F. 3d 1225 (9th Cir. 2001).

Thomas Pearson was convicted for criminal violations of sections 112(f)(4), (244) 112(h), (245) and 113 (c)(1) (246) of the Clean Air Act (CAA). (247) Pearson appealed, contending that the district court gave improper jury instructions concerning the charged offense elements, the district court improperly sustained objections to Pearson's testimony during direct examination, and the United States Sentencing Guidelines (248) were misapplied. The Ninth Circuit affirmed the district court's decision.

In 1995 the Navy contracted with Metcalf Grimm, who in turn subcontracted with Environmental Maintenance Service (EMS), to remove asbestos from the central heating plant at the Whidbey Island Naval Air Station. The removal occurred in three phases, the last of which was the subject of the litigation. Pearson was hired as a certified asbestos supervisor by EMS to oversee this third phase. The third phase involved removal of asbestos from boilers and other equipment. During this phase plastic sheeting was used around the clean-up area to contain the asbestos, machines were used to lower the air pressure in the containment area thereby preventing off site asbestos diffusion, and workers wore respiratory protection.

Under the CAA regulations, asbestos also must be wetted before removal. (249) However, according to witness testimony, dry asbestos was "all over the place," some of the air machines were clogged, and bags of asbestos were outside the containment area. (250) As a result, Pearson was charged with two counts of knowingly causing asbestos removal in violation of the CAA. The maximum penalty under the statute for each count is five years imprisonment. (251)

Pearson argued that he was not involved with the asbestos removal and was only involved with the demolition phase of the project. The district court acquitted Pearson of Count 1, but convicted Pearson of Count 2 and instructed the jury to find that Pearson was acting as a supervisor. At the sentencing hearing, the district court set the base offense level at eight for Pearson's conviction under section 7413 of the CAA. (252) The base level was enhanced by four for discharge of hazardous waste (253) and enhanced by nine for causing risk of serious bodily injury or death. (254) The district court further enhanced the base level by two for Pearson's leadership role in the offense, (255) refusing to reduce the sentence in exchange for Pearson's acknowledgment of responsibility. (256) At this point, the base level offense had been adjusted to a level twenty-three. Next, the district court applied downward factors, reducing the base level by two for the degree of harm, (257) by five levels based on the degree of risk, (258) and by four levels based on aberrant behavior. Ultimately, the base level offense was adjusted to twelve, resulting in a potential sentence of ten to sixteen months. Pearson was sentenced to the minimum of ten months and a subsequent three-year supervised release.

On appeal, Pearson argued that the district court applied the wrong definition of "supervisor" and that "he did not have enough authority to be liable as a `supervisor' under the CAA." (259) Both the district court and the Ninth Circuit applied the "substantial control" standard, which requires a defendant to have the "ability to direct the manner in which work is performed and the authority to correct problems." (260) Thus, because a "supervisor" is not necessarily the individual with the highest authority, the Ninth Circuit held that the district court did not abuse its discretion in instructing the jury to apply the "substantial control" standard in determining Pearson's liability as a supervisor.

Pearson also argued that a jury could find that while acting as a supervisor he also acted under orders from his employer. Pearson contended that because he was an employee carrying out orders, he could not be held liable as an operator under the CAA's criminal provisions unless he was in knowing and willful violation of the Act. (261) Although the Ninth Circuit agreed that a jury could reasonably find that an individual who qualifies as a supervisor under section 7412 also could qualify as an employee under section 7413(h), Pearson failed to raise and meet his burden of establishing that he was an employee because he contended no involvement in the asbestos clean-up. Thus, the district court did not err in excluding instructions to the jury on the issue of whether Pearson acted as an employee.

Pearson also claimed that the district court erred by not properly defining "owner or operator" for the jury. (262) In the jury instructions, the district court emphasized the supervisory aspect of the owner/operator definition. The Ninth Circuit held that the jury instructions were sufficient, particularly in light of the "supervisory aspect of the charged offense." (263)

Pearson's second claim alleged that the district court prevented him from answering the charges against him when the court sustained several objections raised by his counsel during Pearson's direct examination. The Ninth Circuit examined the questions at issue and the defense Pearson raised. Finding that the questions and the defense were unrelated, the Ninth Circuit determined that the district court had not prevented Pearson from receiving a fair trial. (264)

Finally, Pearson argued that the district court improperly enhanced his sentence because the facts did not support a determination that hazardous substances had been discharged. Pearson also alleged that the district court abused its discretion in denying him an evidentiary hearing. In its de novo review, the Ninth Circuit determined first that the district court had not abused its discretion under Rule 32 (c)(1) of the Federal Rules of Criminal Procedure when it denied Pearson's request. As the Ninth Circuit noted, the district court allowed Pearson's counsel to present objections in a pre-sentence report, and the district court made findings with respect to each objection. The Ninth Circuit then determined that the district court's inference that hazardous waste had been released into the outside air was not clearly erroneous because witnesses had testified that bags had asbestos dust on their exterior and drains had been clogged with asbestos fibers. Accordingly, the Ninth Circuit held that district court's enhancement under U.S.S.G. section 2Q1.2(b)(1)(B) was proper. Similarly, because Pearson's non-compliance with work practice standards resulted in improper storage and removal of asbestos as well as potential worker exposure to asbestos-related health risks, (265) the Ninth Circuit held that the district court's enhancement under U.S.S.G. section 2Q1.2(b)(2) was proper.

3. United States v. LeVeque, 283 F.3d 1098 (9th Cir. 2002).

Dennis LeVeque, a licensed hunting outfitter in Montana, and John Moore, a licensed hunting guide in Montana, were convicted in district court of mail fraud in connection with an application they filed to obtain an out-of-state hunting license for a client. (266) Moore was also convicted of violating the Lacey Act (267) and of conspiracy to violate the Lacey Act in connection with an elk illegally killed by Moore's client. (268) LeVeque and Moore appealed the convictions, and the Ninth Circuit revers