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2011 Ninth Circuit environmental review.

III. MISCELLANEOUS

& Federal Tort Claims

1. Adams v. United States, 658 F.3d 928 (9th Cir. 2011).

One hundred and thirty-four farmers (the Farmers) flied an administrative Federal Tort Claims Act (FTCA) (505) claim against Defendant-Appellant Bureau of Land Management (BLM), an agency of the United States Department of the Interior (DOI). DOI denied the Farmers' FTCA claim. The Farmers then flied a lawsuit in the United States District Court for the District of Idaho against both BLM and E.I. Du Pont De Nemours & Co. (DuPont), a chemical manufacturer. The district court adopted a bellwether trial plan (506) with four Bellwether Plaintiffs and subsequently ruled in favor of the Farmers. BLM and DuPont appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit dismissed the Farmers' claims against BLM for lack of federal subject matter jurisdiction.

BLM manages rangelands in Idaho that are susceptible to wildfire damage. One strategy BLM adopted to combat these wildfires was to eliminate cheatgrass (Bromus tectorum), a highly combustible, non-native plant. In 1999 and 2000, BLM applied "Oust," an herbicide manufactured by DuPont, to approximately 70,000 acres of public land in Idaho. Wind carried Oust-contaminated soil from BLM land to the Farmers' land, where it damaged their crops. The Farmers subsequently filed administrative claims with DOI under the FTCA. (507) DOI denied the Farmers' claims and prepared notice of administrative denial letters to send to the Farmers by certified mail, pursuant to section 2401(b) of FTCA. BLM prepared 132 of the letters in bulk using United States Postal Service (USP8) Forms 3800 and 3877, and prepared the remaining two letters individually using only USPS Form 3800. On August 5, 2002, USPS workers picked up the letters from the BLM mailroom and delivered them directly to the Farmers as certified mail, albeit lacking a postmark.

On February 6, 2003, the Farmers filed suit against BLM and DuPont in district court. BLM moved to dismiss the Farmers' claims for lack of subject matter jurisdiction. BLM noted that tort claimants are required to bring their action within six months of the agency's mailing a notice of final denial. (508) Because the Farmers filed their lawsuit on February 6, 2003--six months and one day after BLM mailed its notices on August 5, 2003--BLM argued the Farmers' claims were barred. The district court denied BLM's motion, reasoning that because BLM's notice of denial letters lacked a postmark establishing their mailing date, BLM could not gain the benefit of the six- month statute of limitations.

The district court's bellwether jury found BLM liable for trespass, negligence, and violation of the Idaho nuisance statute (509) in selecting Oust and the application sites, and also found that BLM proximately caused damage to the crops of all four Bellwether Plaintiffs. The district court adopted the bellwether jury's recommendation, allocating 40% fault to BLM and 60% to DuPont. BLM and DuPont appealed to the Ninth Circuit, which remanded the case back to the district court to resolve factual issues regarding whether BLM mailed the notice of administrative denial letters by certified mail. On remand, the district court held that BLM failed to send the letters by certified mail and that USPS Form 3877 requires individuals to mail certified letters from either a post office or via rural carrier--not from the BLM mail room.

The issue then presented to the Ninth Circuit was whether the federal district court had subject matter jurisdiction over the Farmers' claim, an issue which the court reviews de novo. (510) BLM argued that the district court lacked subject matter jurisdiction because: 1) the Farmers filed their lawsuit after the six-month statute of limitations expired, and 2) the Farmers' claims were barred by the discretionary function exception to the FTCA. (511) The Ninth Circuit agreed with BLM that the Farmers' claims were barred by the six-month statute of limitations applicable to FTCA claims. (512) Accordingly, the court declined to consider BLM's discretionary function exception argument.

The court first noted that there is a six-month statute of limitations on FTCA claims, commencing from the date the notice of denial is mailed by certified or registered mail. (513) Ninth Circuit precedent interpreting section 2401(b) imposes strict requirements on both FTCA claimants and the federal government--because the statute of limitations is subject to neither equitable tolling nor estoppel, FTCA claimants must strictly adhere to the six-month timeframe for filing a claim. (514) Similarly, the federal government must strictly adhere to the FTCA's certified or registered mail requirement in order to trigger the statute of limitations, even if the claimant has actual notice of the denial. (515)

The court recognized that the Farmers' FTCA claims would be barred by the six-month statute of limitations if BLM sent the notices of denial by certified mail on August 5, 2002. The court noted that whether BLM mailed the denial letters by certified mail was a mixed question of law and fact. Accordingly, the court reviewed the district court's factual findings for clear error, and reviewed the district court's legal conclusion--that BLM did not send the letters by certified mail--de novo.

The court looked to USPS regulations to determine whether certified mail must bear a postmark. USPS regulations incorporate by reference the "Mailing Standards of the United States Postal Service, Domestic Mail Manual" (DMM), (516) which the court noted does not require postmarks on all certified mail sent with Form 3800. Rather, the DMM specifically permits individuals to mail a certified letter without a postmark, so long as the mail bears a barcoded "Certified Mail sticker" from Form 3800. (517) The sender handwrites the mailing date on the receipt portion of Form 3800, which he then retains for his own records. (518) The court further noted that certified mail bearing the Form 3800 certified mail sticker may be sent from "any ... receptacle for First-Class Mail," (519) including BLM's mail room.

The Farmers noted that the vast majority of the letters were sent using not only USPS Form 3800, but also Form 3877. They argued that Form 3877, unlike Form 3800, requires a sender to mail the letter from a post office or rural carrier. Accordingly, because those letters were sent from BLM's mailroom, they were not sent by the prescribed method qualifying as certified mail. The Ninth Circuit dismissed this argument, noting that although the DMM permits senders to use Form 3877 "in lieu of the receipt portion of Form 3800[,]" (520) senders are still required to apply Form 3800's barcoded sticker to certified mail. Regardless of whether the sender uses Form 3800 or 3877 for his own receipt, the marl is functionally identical when USPS handles it. Thus, the court determined that just as a postmark is optional on a Form 3800 receipt, it is optional on a Form 3877 receipt.

The court concluded by noting that because BLM applied the Form 3800 barcode to its notice of denial letters and paid proper postage, all 134 letters legally qualified as certified mail. Accordingly, the six-month statute of limitations commenced on August 5, 2002, and concluded one day before the Farmers filed their lawsuit--thus extinguishing federal subject matter jurisdiction over their claim.

2. Myers ex rel. L.M. v. United States, 652 F.3d 1021 (9th Cir. 2011).

Myers, a child suing ad litem through her guardian, appealed the ruling of the United States District Court for the Southern District of California that it did not have subject matter jurisdiction over her case under the Federal Tort Claims Act (FTCA) (521) due to the "discretionary function exception." (522) Myers also appealed the district court's ruling that the United States Navy acted reasonably and did not breach its duties in conducting a remediation of the United States Marine Corps Base at Camp Pendleton. Myers argued that the discretionary function exception was inapplicable to this case because the Navy was required to undertake mandatory safety measures during the project. The United States Court of Appeals for the Ninth Circuit reversed the district court's rulings that the discretionary function exception applied and that the Navy acted reasonably in conducting the project.

In 1989, Camp Pendleton was placed on the United States Environmental Protection Agency (EPA) National Priorities List (NPL) of contaminated sites. (523) Thereafter, the Navy entered into a cleanup plan--known as a federal facility agreement (FFA) (524)--for Camp Pendleton, under which the Navy was responsible for the cleanup project and for designating a Quality Assurance Officer (QAO) to ensure that all work was performed in accordance with approved plans. Additionally, the Naval Facilities Engineering Command (Naval FEC) implemented a safety and health program manual (Program Manual), (525) which specified the required safety procedures for remediation projects. (526)

Pursuant to the FFA, Camp Pendleton was divided into several "Operable Units." Operable Unit 3 (OU-3) contained sites 1A and 2A, which were contaminated with thallium. (527) The Navy's remediation plan for Camp Pendleton involved the excavation of the contaminated soil from the OU-3 sites, transportation across the base by truck, and dumping of those soils into the Box Canyon Landfill. The Box Canyon Landfill is adjacent to the Family Housing area of Camp Pendleton and an elementary school. The Navy contracted with IT Corporation and OHM Remediation Services (IT/OHM) to carry out the project and prepared a health and safety plan (HASP) to guide the process. Pursuant to the HASP, IT/OHM was responsible for monitoring airborne contaminants and modifying or stopping its operations if conditions presented a risk to health or safety, while the Navy was to oversee the work. Work progressed through the fall of 1999 when 240,000 cubic yards of OU-3's thallium contaminated soil was dumped into Box Canyon Landfill. Although the dust-monitoring system registered more than 200 instances when excessive dust should have required work stoppage, work was never actually stopped. (528) Nor did the Navy's QAO look at the air monitoring data collected by IT/OHM to check the contractor's compliance with the HASP. (529)

Myers and her family lived in the housing area of Camp Pendleton adjacent to the Box Canyon Landfill. Myers's yard was only fifty feet from the landfill, and the elementary school was a mere 200 feet from the landfill. Soon after the thallium-contaminated soil was dumped into the landfill, Myers became ill. She suffered from gastrointestinal distress, peripheral neuropathy (nerve damage), cognitive defects, and alopecia (hair loss), all of which are known side effects of thallium exposure. (530) Analyses of Myers's urine conducted in March 2000 indicated the presence of thallium in her body in concentrations ten times greater than what is normal; however, subsequent tests purportedly failed to show an excessive concentration of thallium. Although the Navy collected samples from more than 100 sites around Myers's home, none showed levels of thallium above the naturally occurring amount. However, Myers argued that these samples were misleading because they were taken months after the remediation project was completed, and after winter storms likely dissipated the thallium contamination.

The district court trifurcated the bench trial into three phases: breach of duty, actual and proximate causation, and damages. However, the court only reached the first phase and, after three years, finally entered judgment for the Navy. The district court held that the actions of the United States fell within the discretionary function exception, which precluded the court from retaining subject matter jurisdiction over the case. The court went on, however, to find that the Navy acted reasonably, basing its decision on facts that related to whether Myers was actually exposed to thallium from the OU- 3 site--facts of causation that were scheduled for argument during the second phase of the trial.

On appeal, Myers argued that both the Program Manual and FFA provisions required the Navy to review HASP compliance and ensure that work was performed in accordance with the safety procedures. Accordingly, the two issues before the Ninth Circuit on appeal were whether the district court committed reversible error in finding: 1) that Myers's claims were barred by the discretionary function exception, and 2) that the United States acted reasonably in fulfilling its duty to ensure that the contractor followed proper safety procedures. The Ninth Circuit reviewed de novo the district court's dismissal for lack of subject matter jurisdiction and reviewed the district court's determinations of fact for clear error. (531)

In a previous Ninth Circuit case, Terbush v. United States, the court explained that the discretionary function exception only insulates government decision-making based on policy concerns. (532) To establish the applicability of the exception, the court applied the two-prong test from Berkovitz v. United States, (533) determining: 1) "whether the challenged actions' involve an 'element of judgment or choice,'" and 2) if a specific course of action is not specified, whether the discretion left to the government is "based on considerations of public policy." (534) Concluding that the Program Manual imposed mandatory procedures on the Navy that divested it of any discretion, the Ninth Circuit reversed the judgment of the district court.

Specifically, the Ninth Circuit interpreted the language of the Program Manual as a mandatory requirement that the Navy itself review HASPs for compliance. (535) Because these procedures were mandatory, the Navy had "no rightful option but to adhere to the directive." (536) Consequently, the Navy was required to ensure that the contractor complied with the safety provisions, and was liable for any thallium contamination under the FTCA. Moreover, the Program Manual specified that the HASP reviewer must be a certified industrial hygienist (CIH) or the equivalent by training or experience. Accordingly, there was no room for discretion as to how the review was to be conducted. Citing Bolt v. United States, (537) the court held that the Navy had no discretion regarding whether or not to review the HASP or whether to allow anyone other than a Navy CIH to perform that duty. (538) The Program Manual was in direct conflict with the Navy's contract with IT/OHM, which made the contractor's CIH responsible for performing the duty. Thus, the court concluded that the Navy breached its non-discretionary duty to review the contractor's HASP prior to its implementation.

The Ninth Circuit next addressed the FFA provisions that Myers claimed also imposed a mandatory requirement on the Navy to ensure that IT/OHM followed certain safety procedures. (539) Here, the court found that the FFA did not specify what the Navy must do to comply with the QAO's duty to oversee the contractor's work. Consequently, the FFA allowed for Navy discretion. Nevertheless, the second prong of the Berkovitz test required that the Ninth Circuit examine whether that discretion was to be exercised for policy concerns. (540) In this case, the court found that the "decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not." (541) The Ninth Circuit drew an analogy to the case of Marlys Bear Medicine v. United States ex rel. Secretary of the Department of Interior (542) and held that the Navy was required to ensure that the contractor complied with the safety provisions of the contract. (543)

Because the Ninth Circuit found that Myers's claims were not barred by the discretionary function exception, the court went on to analyze whether the Navy had acted reasonably. On this issue the Ninth Circuit again reversed the district court. Under the FTCA, the Navy is liable to Myers in accordance with the law of the locality where the act occurred. (544) In this case, California law was applicable and state precedent set by Yanez v. United States (545) created direct liability based on the Navy's non-delegable duty of reasonable care. (546) Additionally, because the Navy conceded that the OU-3 project involved "peculiar risk," it was foreseeable that persons exposed to thallium would suffer injuries like Myers's. Furthermore, neither the Navy's CIH nor its QAO ever took steps to review the air-monitoring samples or to ensure that the contractor complied with the HASP. Therefore the court found that the Navy clearly did not act reasonably.

Finally, Myers asked for the case to be reassigned on remand to a different district court judge. The Ninth Circuit weighed the three factors of Mendez v. County of San Bernardino (547) and found that the errors of the district court were not significant enough to warrant reassignment. (548) The court determined that the errors of the trial judge were not enough to question his impartiality, and that reassignment would not preserve the appearance of justice. As such, the Ninth Circuit remanded the case back to the original district court judge to determine the issues of causation and damages.

In summary, the Ninth Circuit held that the discretionary function exception was inapplicable in this case because the Navy's Program Manual specifically required Navy review of the contractor's work for HASP compliance. Although the FAA did allow for Navy discretion, the Navy breached its duty of care by failing to prevent foreseeable thallium contamination from affecting nearby residents of Camp Pendleton. Thus, the district court had jurisdiction to decide the final two phases of the case: causation and damages.

Judge Rawlinson concurred in part and dissented in part, stating that the majority's opinion "completely rewr[ote] the facts to such an extent that it decide[d] a different case on different facts than that decided by the district court." (549) For example, the district court found that only one sample at Site 1A exceeded the safe thallium level, one sample at Site 2A only slightly exceeded the safe level, and that the final sample at Site 2A produced an unreliable test result. Notwithstanding the inconsistent testing results, the majority disregarded the district court's findings and focused on thallium's poisonous characteristics. The district court also found that any visible dust was from uncontaminated sources, and that airborne dust limits were only exceeded because the limit set on the monitoring system was too low. Conversely, the majority's version centered on how the limit was exceeded over 200 times, yet work was never stopped. Judge Rawlinson did agree with the majority that the FFA allowed for Navy discretion, but asserted that the majority's conclusion was tainted by its impermissible fact-finding. Therefore, in Judge Rawlinson's opinion, the case should have been remanded for clarification regarding the factual issues of the case, rather than directing a verdict for Myers.

B. International Hazardous Waste

1. Carijano v. Occidental Petroleum Corporation, 643 F.3d 1216 (9th Cir. 2011)

Twenty-five members of the Achuar indigenous group of Peru along with Amazon Watch, a California corporation (collectively Plaintiffs), appealed dismissal of their suit against Occidental Peruana, a subsidiary of Occidental Petroleum Corporation (Occidental). Occidental removed the suit from the Los Angeles County Superior Court to the United States District Court for the Central District of California. The district court then granted Occidental's motion to dismiss on the basis of forum non conveniens--that Peru was a more convenient forum. Plaintiffs appealed the district court's ruling and the United States Court of Appeals for the Ninth Circuit reversed the dismissal and remanded, with Judge Rymer dissenting.

Headquartered in Los Angeles County, Occidental is one of the largest oil and gas companies in the United States. Between 1972 and 2000 it extracted roughly a quarter of Peru's total oil production through wells and pipelines in the northern Peruvian rainforest. In that section of rainforest, the Corrientes and Macusari rivers run through and around Occidental's operation and are used by several Achuar (550) communities. Amazon Watch, headquartered in San Francisco, California, began working with the Achuar in 2001. They advocated for the group and filmed a documentary about the contamination.

Collectively, Plaintiffs alleged that Occidental knowingly used out-of-date methods for separating crude oil in violation of United States and Peruvian law. This, Plaintiffs claimed, led to the discharge of millions of gallons of toxic oil byproducts into the waterways used by the Achuar. As a result, many of the Achuar now have potentially dangerous levels of lead and cadmium in their blood, and many suffer from multiple illnesses attributed to the pollution of the rivers they use for drinking, fishing, and bathing. Correspondingly, Plaintiffs' amended complaint sought damages, injunctive and declaratory relief, restitution, and disgorgement of profits from Occidental. Pursuant to 28 U.S.C. [section] 1332(d)(2), (551) Occidental removed the action to federal district court. Shortly thereafter, Amazon Watch joined as plaintiff, suing under California's Unfair Competition Law. (552) The district court then granted Occidental's motion to dismiss on forum non conveniens grounds without oral argument, and simultaneously denied Plaintiffs' request to conduct discovery into the adequacy of Peru as an alternative forum. Noting its jurisdiction under 28 U.S.C. [section] 1291, (553) the Ninth Circuit reviewed the district court's dismissal for abuse of discretion. (554)

The Ninth Circuit observed that forum non conveniens is meant to prohibit a plaintiff from choosing a forum purely to harass a defendant or to seek more favorable law. (555) However, the mere fact that parties are foreign does not warrant the drastic application of the doctrine that results in dismissal. (556) Dismissal under forum non conveniens is "an exceptional tool to be employed sparingly," and not a "doctrine that compels plaintiffs to choose the optimal forum for their claim." (557) In concluding that the district court abused its discretion when it found that Occidental met its burden of demonstrating Peru to be an adequate alternative forum, the Ninth Circuit examined whether: 1) the alternative forum of Peru was adequate; 2) the district court properly weighed the public and private factors and the deference owed to the Plaintiffs' choice of forum; and 3) the district court should have imposed any conditions on the dismissal.

For the Ninth Circuit's first inquiry, the court observed that an alternative forum is adequate where the defendant is amenable to process and a satisfactory remedy is available. (558) First, in regard to Peru, the district court accepted Occidental's "stipulation and consent to jurisdiction in Peru" despite the absence of any waiver of the statute of limitations, which the defense itself suggested may have run. Second, the district court correctly concluded that Occidental sufficiently proved that Peru's substantive and procedural laws would have provided a satisfactory remedy. Although damages are purely compensatory rather than punitive in Peru, an alternative forum need only provide "some remedy" for plaintiffs. (559) Finally, despite alleged discrimination and corruption in the Peruvian legal system, a party must make a "powerful showing," including specific evidence, to demonstrate that an alternative forum is too corrupt to be adequate. (560) Consequently, the district court did not abuse its discretion by concluding that the Plaintiffs' affidavit was too generalized to support a conclusion that the Peruvian legal system would not have afforded Plaintiffs a remedy. Thus, Peru is an adequate alternative forum.

Second, the Ninth Circuit concluded that the district court abused its discretion when it balanced the private and public interest factors and failed to give proper deference to the Plaintiffs' choice of forum. The district court correctly assumed that Amazon Watch was a legitimate domestic plaintiff, but ignored the group in its consideration of the private and public factors. Most glaring was the lack of deference afforded Amazon Watch's choice of forum. There is a "strong presumption in favor of the plaintiffs choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum." (561) Whereas a domestic plaintiffs choice of forum is presumptively convenient, (562) a lower level of deference is owed a foreign plaintiff. (563) Ultimately, the district court abused its discretion by affording reduced deference to Amazon Watch's choice of forum as a domestic plaintiff.

The Ninth Circuit went on to criticize the district court's standard of deference as inconsistent with Piper Aircraft Company v. Reyno because the case made no suggestion that deference would be lower where both domestic and foreign plaintiffs joined suit. In doing so, the court distinguished this case from Vivendi SA v. T-Mobile USA, Inc., (564) and noted that Amazon Watch did not choose a forum for mere tactical advantage. (565) In fact, Amazon Watch had been involved in the subject matter of this litigation since 2001 and alleged complaints arising out of events that took place specifically in California. This forum was the defendant's home jurisdiction and was the place of the subject matter of this case. Correspondingly, Amazon Watch did not attempt to inappropriately forum shop, so the district court abused its discretion by failing to afford the appropriate level of deference to the Plaintiffs' chosen forum.

Next, the court examined the private and public interests at stake in this case. Regarding the private interests, the Ninth Circuit factored in:

"(1) the residence of the parties and the witnesses; (2) the forum's convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all other practical problems that make trial of a case easy, expeditious and inexpensive." (566)

The Ninth Circuit considered the district court's generalized appraisal of the factors inadequate because it neglected significant evidence and failed to account for the enforceability of the judgment. First, the court weighed each factor and found that the district court failed to consider Amazon Watch's residency, which weighed against dismissal. Second, the court found that the convenience of the parties (567) and evidentiary considerations (568) had only a neutral effect on the analysis. However, the district court erred when it failed to properly weigh the difficulty of enforcing a Peruvian judgment. The Ninth Circuit accepted Plaintiffs' evidence that the potential difficulty (569) and unpredictability (570) of enforcement weighed against dismissal.

Turning to the public interests involved, the Ninth Circuit analyzed both local interests and judicial considerations. The examination of local interest is intended to determine whether the forum itself has an interest in the resolution of the case. Here, California had a significant interest in "deciding actions against resident corporations whose conduct in [the] state causes injury to persons in other jurisdictions." (571) On the other hand, Peru had a stake in the case because it involved its own land and citizens. As a result, the Ninth Circuit found this factor neutral, so the district court abused its discretion when it held that this factor favored dismissal. However, the court found that the district court did not err in finding the factors of court congestion and burden to be neutral; evidence illustrated that courts in Peru were similarly crowded as U.S. courts. Nor did it err in finding the choice of law factor neutral--both Occidental and Plaintiffs provided reasonable arguments for application of either Peruvian or California law. (572) Therefore, the private convenience and evidentiary factors were neutral overall and failed to outweigh the deference owed the Plaintiffs' chosen forum.

Lastly, the Ninth Circuit found the district court abused its discretion when it failed to impose any mitigating conditions on its dismissal of the Plaintiffs' claims. While a district court is not required to condition dismissals for forum non conveniens, it is nevertheless an abuse of discretion when "there is a justifiable reason to doubt that a party will cooperate with the foreign forum." (573) Plaintiffs had requested that the district court condition its dismissal so that: "(1) any Peruvian judgment be satisfied; (2) Occidental waive any statute of limitations defense in Peru that would not be available in California; (3) Occidental agree to comply with United States discovery rules; and (4) Occidental translate documents from English to Spanish." (574) The Ninth Circuit acknowledged that there was justifiable reason to believe that Occidental would move to dismiss the lawsuit in Peru on statute of limitations grounds, and noted that "an adequate forum does not exist if a statute of limitations bars the bringing of the case in that forum." (575) On this ground alone it was an abuse of discretion for the district court to dismiss on the basis of forum non conveniens without requiring Occidental to waive any statute of limitations defense.

Similarly, the district court failed to consider the difficulty the Plaintiffs would face in enforcing a Peruvian judgment. Occidental's own expert explained that there was "corruption and turmoil" in the Peruvian judiciary that would generate "challenge[s] to the enforceability of a judgment based on the procedural deficiencies of a Peruvian proceeding." (576) Consequently, the district court should have required assurances that Occidental be willing to satisfy any judgment as a condition for dismissal. As for the sufficiency of Peruvian discovery, the district court overemphasized 'Peruvian geography and overlooked the importance of witnesses and evidence located within California. While a thorough analysis might have concluded that Peru's discovery rules would satisfy the Plaintiffs' concerns, the district court erred by rejecting this condition on dismissal without conducting the analysis. Although the Ninth Circuit did agree with the district court's decision not to require Occidental to translate all documents into Spanish, it ultimately found that the district court's failure to impose any conditions upon dismissal was an abuse of discretion.

In conclusion, the Ninth Circuit held that the district court abused its discretion by failing to consider all relevant private and public interest factors, and entirely overlooking the enforceability of the judgment. While the district court did consider Amazon Watch to be a proper domestic plaintiff, it erred by affording reduced deference to its chosen forum and ignored the group when it analyzed other factors surrounding forum non conveniens. Thus, the district court abused its discretion when it failed to impose conditions on dismissal. The Ninth Circuit declined to reach Plaintiffs' argument that it should have been allowed discovery prior to Occidental's forum non conveniens motion, and remanded the case for determination of Amazon Watch's standing and further proceedings consistent with its opinion.

Judge Rymer concurred in part and dissented in part. She agreed that the district court did not abuse its discretion in finding that Peru was an adequate alternative forum, but she did not believe that conditions on dismissal were required. Generally, dismissals for forum non conveniens "may be reversed only where there has been a clear abuse of discretion." (577) In this case, Judge Rymer thought the findings of the district court were supported by the record and its balancing of the factors was not unreasonable; therefore, the decision of the district court deserved substantial deference.

Disagreeing with the majority, Judge Rymer opined that the district court did not abuse its discretion in its weighing of the public and private interest factors. Amazon Watch was only one of the twenty-six plaintiffs in this case, and only involved in one of the twelve causes of action. Accordingly, it was reasonable for the district court to lessen the deference given Plaintiffs' choice of forum. Finally, Judge Rymer agreed with the district court's finding that the subject matter of the suit revolved around the people and geography of Peru, and that Peru's interest in the suit outweighed California's.

In sum, Judge Rymer would have remanded to the district court to consider whether the imposition of conditions should have been considered, but would have otherwise affirmed the district court's dismissal for forum non conveniens.

C. National Environmental Policy Act

1. Barnes v. U.S. Department of Transportation, 655 F.3d 1124 (9th Cir. 2011).

Plaintiffs (578) challenged an order of the Federal Aviation Administration (FAA on Defendants) (579) that relieved the agency of preparing an environmental impact statement (EIS) for construction of a new airport runway at Hillsboro Airport (HIO) in Portland, Oregon. Plaintiffs argued that the FAA acted unreasonably by failing to hold a public hearing and that FAA's finding of no significant impact (FONSI), which relieved the agency from preparing an EIS, was unreasonable because the agency failed to consider the environmental impacts of increased demand for HIO resulting from the addition of a new runway. (580) The United States Court of Appeals for the Ninth Circuit held that: 1) the agencies were required to analyze the impacts of the increased demand attributable to the new runway as a growth-inducing effect in determining whether an EIS was required, and 2) the meeting held under the direction of a designated hearing officer was a "public hearing" under the Airport and Airway Improvement Act of 1982. (581)

Located in the city of Hillsboro, HIO has become Oregon's busiest airport. It is currently used as a "reliever" airport for Portland International Airport (PDX), (582) and serves commercial air carriers, military aircraft, and general aviation (GA) aircraft. (583) In 2005, the Port of Portland undertook the HIO Master Plan to forecast the future aviation demand at HIO and plan for its development through 2025. This Master Plan projected HIO's annual service volume (ASV) to exceed 100% by 2010. (584) Although the ASV is not a ceiling to airport operations, FAA requires airfield improvements to be considered when operations reach 60% of ASV. (585) The HIO Master Plan considered the increased delays, air emissions, and operating costs that would result from operating above ASV, and determined that adding a third runway for small GA aircraft would best ameliorate those undesirable conditions.

Because the proposed runway would be partially funded by FAA grants, the plan required FAA approval and the preparation of an environmental assessment (EA). In 2009, FAA approved and published a draft environmental assessment (DEA) stating that the proposed runway's purpose was to "reduce congestion and delay at HIO in accordance with planning guidelines established by the FAA." (586) Of seven potential alternatives, the Port eliminated all but three. Alternative 1 (the "no action" alternative) was rejected because it would not meet the purpose of the project. The Port focused its considerations on Alternatives 2 and 3, which both proposed a new runway, and differed only as to where a pre-existing helipad should be relocated. The Port found that these alternatives would not lead to increased aviation activity or secondary growth impacts, and that either alternative would actually reduce emissions of grounded aircraft compared to the "no action" alternative. Because HIO represented only 1% of total United States aviation activity, the Port believed the addition of a new runway would not significantly increase the emission of greenhouse gases. Finally, the Port conducted a two-hour open-house meeting with members of the public on November 10, 2009, during which the Port made two presentations. After making minor revisions to the DEA in response to public comment, the Port submitted its final EA stating that neither Alternative 2 nor 3 would increase aviation activity beyond the "no action" alternative. FAA approved the EA and issued a FONSI on January 8, 2010.

On appeal from the FAA ruling, Plaintiffs argued that FAA violated the National Environmental Policy Act of 1969 (NEPA). (587) Specifically Plaintiffs alleged that: 1) FAA failed to consider the indirect effects of the increased aircraft operations, 2) the context and intensity of the project required FAA to prepare an EIS, 3) FAA failed to take a "hard look" at the cumulative effects of the project, 4) FAA failed to consider a reasonable range of alternatives, and 5) FAA failed to provide an adequate public hearing in violation of the Airport and Airway Improvement Act of 1982. (588) The Ninth Circuit reviewed the agency action under the arbitrary and capricious standard. (589)

Initially, Defendants argued that Plaintiffs waived their NEPA claim. Under NEPA, persons challenging an agency's compliance must structure their participation so that it alerts the agency to the parties' position, (590) unless the flaws in the EA are "so obvious" that there is no need to point them out. (591) In this case, some arguments were sufficiently raised, but others were not. First, Plaintiffs claimed the EA was inadequate because FAA failed to consider the indirect effects of increased aviation was not waived. The court found that a letter sent by one Plaintiff addressed indirect effects resulting from the third runway. (592) Furthermore, because the DEA discussed potential growth-inducing effects of the runway, FAA's failure to discuss the environmental impact of increased demand was "so obvious" that there was no need for Plaintiffs to point it out in their comments. Second, the Plaintiffs' claim that the context and intensity of the project required an EIS was not waived because Plaintiff Barnes stated during her comments that she thought an EIS should be prepared. Third, the Plaintiffs' challenge that the EA failed to consider the cumulative impacts of a new control tower was waived because the project did not forecast building a new tower. Finally, the Plaintiffs' argument that the EA failed to consider reasonable alternatives was waived because their proposed alternatives (593) did not address the purpose of the project--to reduce congestion and delay at HIO. Consequently, the court only addressed the preserved arguments and the public hearing contention.

The Ninth Circuit first examined the Plaintiffs' main argument, that the EA was deficient for failing to consider the indirect effects of the HIO project. Plaintiffs emphasized that an EIS must be prepared ff any "substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor." (594) Thus, agencies must consider the substantiality of both direct and indirect effects. (595) While FAA claimed that the activity at HIO was expected to increase at the same rate regardless of whether a new runway was built, nothing in the record actually discussed the impact of the new runway on aviation demand. FAA also argued that any increase would be irrelevant because the project was meant to address "existing problems," and court precedent only required an EA to account for growth-inducing effects if the project was not designed to alleviate current congestion.(596) However, the court distinguished previous cases by pointing out that FAA has recognized that a new runway is "the most effective capacity-enhancing feature an airfield can provide," so a case-by-case approach is needed for cases of this type. (597) Consequently, the Defendants' cited precedent was not controlling and the court remanded this issue to FAA for consideration.

Second, the Ninth Circuit addressed Plaintiffs' contention that the context and intensity of the project required an EIS. (598) Plaintiffs argued that because building a new runway at HIO is a site-specific project, Defendants could not dilute its environmental impact by averaging it across national and global emissions. Plaintiffs further claimed that the project's greenhouse gas effects were "highly uncertain" and therefore required an EIS. (599) The Ninth Circuit disagreed, and held that there is ample evidence that the effects of greenhouse gases are not "uncertain." (600) Furthermore, the EA included estimates of HIO's contribution to greenhouse gases. (601) Therefore, the court concluded, an EIS was not warranted.

Third, the defective cumulative effects analysis of the EA claimed by Plaintiffs was held to be a harmless error. Plaintiffs based their claim upon zoning changes proposed by the City of Hillsboro in 2009 that created the Airport Use zone and the Airport Safety and Compatibility Overlay zone. Defendants' failure to consider the effects on these zones was harmless because the zoning change was invalidated in 2010. (602)

Finally, Plaintiffs argued that FAA failed to hold a public hearing as required under the Airport and Airway Improvement Act. (603) The Ninth Circuit began by noting that "public hearing" is not statutorily defined, and that an FAA order requires a "gathering under the direction of a designated hearing officer." (604) The court noted that although FAA orders do not carry the force of law and are not entitled to substantial deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., (605) they may be entitled to weaker deference under Skidmore v. Swift & Co. (606) However, the court declined to reach this issue because the meeting provided for by Defendants was functionally used as a "public hearing," in that it gave members of the public ample opportunity to comment, ask questions, and receive answers from a "designated hearing officer" and other officials involved in the project. (607)

In summary, the Ninth Circuit held that FAA's inadequate analysis of indirect effects, which failed to account for the addition of a growth-inducing runway, required that the issue be remanded to FAA for consideration. However, the Ninth Circuit held that the context and intensity of the project did not require an EIS, that FAA's failure to consider cumulative impacts upon zoning was harmless error, and that the meeting presented by Defendants was an adequate "public hearing."

Judge Ikuta dissented, alleging that the majority sided with "delay and air pollution by imposing pointless paperwork" on FAA. (608) She argued that because the purpose of this new runway was to address "existing conditions" at HIO, the majority should have adhered to existing precedent. (609) Furthermore, the judge believed Plaintiffs waived this argument because none of them mentioned "growth-inducing effects" during the comment period. Judge Ikuta noted that the letter used by the majority to preserve the "indirect effects" argument only obliquely mentioned the quality of life and property values of nearby homeowners, and was otherwise overwhelmingly concerned with the direct effects of the third runway. She also believed the majority's "so obvious" argument ignored Ninth Circuit precedent excusing agencies from analyzing whether a project directed toward accommodating increased demand may itself increase demand. (610) Judge Ikuta further contended that the majority disregarded its traditional deference to agency expertise by concluding, without foundation in the record, that airport projects have growth-inducing effects. All of this, according to Judge Ikuta, signaled that FAA did not fail to address whether a new runway would have growth-inducing effects.

2. Center for Environmental Law and Policy v. United States Bureau of Reclamation, 655 F.3d 1000 (9th Cir. 2011).

Plaintiffs, the Center for Environmental Law and Policy (CELP), (611) sued the United States Bureau of Reclamation (BOR) (612) for conducting an inadequate analysis of the drawdown of Lake Roosevelt on the Columbia River in violation of the National Environmental Policy Act (NEPA). (613) The United States District Court for the Eastern District of Washington granted summary judgment in favor of BOR and CELP appealed. The United States Court of Appeals for the Ninth Circuit affirmed the district court's grant of summary judgment, finding that: 1) BOR adequately addressed past cumulative effects in its environmental assessment (EA) and other filings, 2) BOR impliedly promised to evaluate cumulative effects of a future project in its notice of intent to file, 3) there were no indirect effects, and 4) BOR adequately considered alternatives.

The Grand Coulee Dam is located on the Columbia River 150 miles from the Canadian border in eastern Washington. (614) BOR and other agencies control the level of water in the reservoir behind the dam called Lake Roosevelt. In 2006, the Washington legislature passed the Columbia River Water Management Act (Water Management Act), (615) which increased the 82,500 acre-feet diversion (616) of Lake Roosevelt, allowing no more than 132,500 acre-feet of water in drought years. (617) After preparing a preliminary environmental impact statement (PEIS) (618) and a supplemental environmental impact statement (SEIS), (619) BOR issued a final EA in June 2009. The final EA included a no-action alternative, potential and cumulative impacts, and a list of planned future projects. BOR issued a finding of no significant impact (FONSI), concluding that there would not be a significant impact in the natural or human environment in the project area.

CELP argued the EA was untimely and that it inadequately addressed past and future cumulative effects, indirect effects, and reasonable alternatives under NEPA. (620) Both parties flied cross-motions for summary judgment. The district court granted summary judgment in favor of defendants, holding that BOR addressed cumulative and indirect impacts, and adequately discussed alternatives. The Ninth Circuit reviewed the district court's decision de novo but limited its review to determining whether BOR took a "hard look" at the proposed action. (621) The court defers to an informed decision but will not overlook a "clear error of judgment." (622)

In order to guarantee that environmental aspects of a policy are considered, NEPA requires agencies to prepare an environmental impact statement (EIS) for federal actions significantly affecting the human environment. (623) An agency may prepare an EA to determine if there is a "significant" effect. (624) The agency must prepare an EA at the "go-no go stage"(625) and include the reason for the proposal, alternatives, and all environmental impacts.(626) An agency may then issue a FONSI in lieu of preparing an EIS if it determines that there are no significant environmental effects.(627)

The Ninth Circuit first addressed the timing of the EA since the EA must be completed before the "go-no go stage." Despite CELP's argument that BOR irretrievably committed water from the lake to the drawdown project prior to the EA (contrary to NEPA), the court found BOR had absolute authority to use the water of Lake Roosevelt under its permit. (628) Therefore, BOR was free to divert or not divert the water, with water rights returning to the state if no water was ultimately diverted. (629)

The Ninth Circuit next addressed CELP's argument that BOR failed to consider the cumulative effects (630) of past and present projects. First, CELP argued that the EA's past project discussion was conclusory and filled with cross-references. (631) The court agreed, finding the EA's discussion superficial and populated with vague information. (632) However, the court stated that this section of the EA was not reflective of BOR's overall approach, since BOR addressed other areas with specificity, such as landslides and surface water. (633) The court explained that BOR was not required to replicate this detailed analysis in every section to avoid promoting form over substance. (634) Since the entire record indicated BOR took a "hard look" at these impacts, the court held there was no violation of NEPA.

Second, CELP argued that the EA failed to account for the cumulative impacts of three future projects; however, the court only addressed the Odessa Subarea Special Study (Special Study). (635) While the court agreed that the Special Study was reasonably foreseeable, and that usually proposed actions necessitate a cumulative impacts analysis, the court found that BOR complied with NEPA because the EA included a notice of intent to prepare a separate EIS for the project. (636) Since a notice of intent is a promise to consider all impacts of a future project, the court reasoned, cumulative impacts of the Special Study may be addressed by BOR at a later stage.

Next, the court addressed CELP's argument that BOR violated NEPA for failing to consider the indirect effects (637) of the project in the EA, especially those effects associated with BOR's intent to expand the Weber Siphons. (638) The court found that agencies are not required to account for potential growth effects when the project is intended for a limited use. Furthermore, the court reasoned, several barriers would prevent BOR from making additional diversions, including the fact that BOR must decide to use the expanded capacity of the canals, expand other canals in the area, and conduct a NEPA review of any additional drawdowns. Therefore, the expanded capacity of the Weber Siphons was not an indirect effect because any decision to use the extra capacity would be subject to its own NEPA review.

Finally, the court addressed CELP's argument that the EA contained too few alternatives. While an EA must contain a brief discussion of the alternatives, it must fully and meaningfully consider those alternatives.(639) The court has consistently found that there is no minimum number of alternatives an agency must consider. (640) BOR considered and rejected other alternatives in its SEIS, explicitly referencing the SEIS in its FONSI. Previously, the court had approved an EA with only two alternatives because a prior EIS thoroughly considered alternatives. (641) The court adopted this reasoning, finding that BOR's prior considerations in its SEIS and explicit references to the SEIS in its FONSI satisfied the NEPA alternatives requirement.

The Ninth Circuit explained that while BOR vaguely discussed the cumulative effects, the EA as a whole shows that BOR understood and accounted for cumulative effects in past projects. The court found that BOR's commitment to scrutinize cumulative effects of the Special Study before commencing any action was an adequate safeguard. In sum, the court concluded that BOR did not violate NEPA and accordingly affirmed the district court's decision.

3. Northern Plains Resource Council, Inc. v. Surface Transportation Board, 668 F.3d 1067 (9th Cir. 2011).

The Northern Plains Resource Council (NPRC) and four other Petitioners (642) challenged the approval by the Surface Transportation Board (Board) of a 17.4 mile railroad in southeastern Montana. Since 1983, the Tongue River Railroad Company (TRRC) has proposed three railroad lines (TRRC I, II, and HI) to haul coal from new mines in Montana. In 2007, the Board approved the construction of TRRC III after conducting an environmental impact statement (EIS) and including mitigation measures as a condition of the railroad's license. NPRC petitioned the United States Court of Appeals for the Ninth Circuit for review of the Board's final approval, and TRRC intervened in defense of the Board's decision. NPRC alleged the Board violated the National Environmental Policy Act (NEPA) (643) and the railroad licensing statute, 49 U.S.C. [section] 10091(b) as amended by the Interstate Commerce Commission Termination Act (ICCTA). (644) The Ninth Circuit ruled on twenty-one claims: affirming the Board in part, reversing in part, and remanding the railroad license application to the Board for further environmental review consistent with NEPA.

Under federal law, (645) the Board has exclusive authority to license the construction and operation of new railroads. Over the past thirty years, TRRC has proposed three new railroad lines to serve coalmines in the Powder River Basin of Montana and Wyoming. In 1983, TRRC proposed TRRC I, an 89-mile rail line from Miles City to Ashland, Montana. (646) In 1989, TRRC proposed a second railroad, TRRC II, a 41-mile line from Ashland to Decker, Montana. An EIS was conducted for TRRC II, and the Board required a change to TRRC's preferred route along with other mitigation measures as a condition of approval. TRRC objected to the change in route, and subsequently filed a new application, TRRC HI, as an alternative to TRRC II. The Board completed a supplemental EIS in 2006 with updates to the environmental reviews conducted in TRRC I and TRRC II. The Board approved TRRC III with mitigation measures in 2007, and NPRC, joined by other individuals and groups, appealed the Board's final decision to the Ninth Circuit.

NPRC claimed that the Board's decision violated NEPA by failing to conduct an adequate environmental review, (647) NPRC alleged deficiencies in the EIS in six areas: 1) inadequate cumulative impacts analysis, 2) inadequate baseline data, 3) impermissibly stale data, 4) inadequate geographic scope, 5) impermissible use of a single EIS, and 6) impermissible tiering of the EIS. For the claim of inadequate cumulative impacts analysis, NPRC alleged that the EIS failed to consider the cumulative impacts of coal bed methane (CBM), other coal mines, and water quality.

NPRC also claimed that the Board's decision violated 49 U.S.C. [section] 10901, a provision of the ICC Termination Act (648) governing when the Board may license the construction and operation of railroad lines. NPRC alleged that the Board: 1) applied the wrong standard to the analysis of TRRC III, 2) improperly determined that the railroad served the public convenience and necessity, 3) failed to conduct the required balancing test of transportation and environmental interests, 4) failed to allow an administrative law judge to rule on the application, 5) failed to address labor protection for railroad employees, and 6) inappropriately relied on TRRC II as the "no build" alternative to TRRC III. The Ninth Circuit reviewed the NEPA claims and the Board's approval of the railroad application under the "arbitrary and capricious standard" (649) in the Administrative Procedure Act (APA) (650). The Ninth Circuit ruled on each claim, affirming the Board in part, reversing in part, and remanding the case to the Board for further review.

In the first category of NEPA claims, the Ninth Circuit agreed with NPRC that the EIS for TRRC HI contained an inadequate cumulative impacts analysis (651) with respect to CBM projects, other coal mines, and water quality. First, the court determined that the Board improperly limited the cumulative impacts analysis of future CBM development in the Powder River Basin to a five-year period. The court found that the five-year period was unjustified based on a Bureau of Land Management (BLM) and State of Montana programmatic EIS (652) on CBM development, which concluded that development is likely to increase over the next twenty years. Therefore, CBM developments in the next twenty years were reasonably foreseeable and should have been included in the cumulative impacts analysis. (653)

The court also affirmed the Board's determination that the nine presently operating CBM wells did not pose any risk of significant environmental impacts after the construction of the railroad. Moreover, the court affirmed the Board's determination that the cumulative impacts of the railroad and CBM wells would not result in significant environmental impacts to air quality and wildlife. The court noted that most of the effects of the railroad on air quality and wildlife were temporary and localized in nature.

The court next determined that the EIS contained an inadequate cumulative impacts analysis with respect to future coal mines. The EIS failed to consider the effects of the Otter Creek coal mines, which at the time of the railroad application were on yet-to-be leased federal lands. The court concluded that the future Otter Creek coal mines were reasonably foreseeable because the federal government transferred the lands to the State of Montana in 2002 for coal development. Furthermore, a major justification for TRRC railroads included the increased development of coal in the area; therefore, the court concluded that the Board violated NEPA by failing to consider the cumulative impacts of the future mines.

The court agreed with NPRC that the Board conducted an inadequate cumulative impacts analysis with respect to water quality. According to The court concluded that the Board relied on an erroneous assumption that the railroad would not be constructed at the same time as future CBM wells would be operating. The construction of the railroad is expected to increase sedimentation in rivers, and reasonably foreseeable CBM wells would be contributing to water quality degradation at the same time; therefore, the Board could not conclude that there would be no cumulative impacts on water quality.

On the second NEPA claim, the court reversed the decision of the Board because the EIS failed to take the required "hard look" at existing baseline data. NPRC claimed that the EIS failed to gather baseline data on species, including pallid sturgeon (Scaphirhynchus albus) and the sage grouse (Centrocercus urophasianus). The court agreed that the EIS failed to establish baseline data for the species, and concluded that the Board could not rely on mitigation measures to protect the species in lieu of baseline data.

On the third NEPA claim, the court agreed with NPRC that the EIS was inadequate because it relied on stale data. The EIS for TRRC III relied on environmental data from EISs conducted in 1985 (TRRC I) and 1992 (TRRC II). The Board's decision to approve the project in 2007, therefore, relied on stale environmental information, including aerial surveys that were at least ten years old. (654)

On the fourth NEPA claim, the court affirmed the Board's decision on the geographic scope of the EIS. The geographic limits for consideration of the environmental impacts of TRRC III were limited to the railroad's right of way. The court concluded that this geographic scope satisfied NEPA's requirements because the agency may decide the geographic boundaries to consider for environmental impacts. (655)

On the fifth NEPA claim, the court determined that the Board did not err by using supplemental EISs rather than creating a single EIS (656) for all three TRRC proposals. The three TRRC projects could not be considered as a single project because at the time of TRRC I there was no way to know that subsequent projects would be proposed. The Board's incorporation of the EISs for TRRC I and TRRC II into the EIS for TRRC III did not constitute an arbitrary and capricious decision because the final EIS successfully addressed the total environmental impacts for all three projects.

On the sixth NEPA claim, the court concluded that the Board did not err by tiering (657) the TRRC HI EIS to other site-specific EISs. Although an EIS is not permitted to incorporate the conclusions of other site-specific EISs, the TRRC HI EIS only used the site-specific information for general background purposes. The court agreed with the Board that the TRRC III EIS did not rely on site-specific EISs for relevant environmental data or conclusions.

NPRC also claimed that the Board violated various aspects of federal law (658) regulating the construction and operation of railroad lines when the Board approved the TRRC HI application. The court referred to these six categories of claims as the railroad claims. The court ruled on each claim, affirming in part, reversing in part, and remanding the case to the Board for reconsideration.

On the first railroad claim, the court concluded that the Board applied the correct statutory standard when it approved the construction of TRRC III. NPRC claimed the standard for approving a new railroad under 49 U.S.C. [section] 10901 was a determination that the railroad was required or would enhance public convenience and necessity. The Board countered that the Staggers Rail Act of 1980 (659) amended the statutory language to allow the Board to approve new railroads if public convenience and necessity "permit" the construction. (660) The court agreed with the Board and the United States Court of Appeals for the Eight Circuit: "Congress subsequently relaxed this restrictive policy by providing that the [Board] need only find that public convenience and necessity 'permit' the proposed construction." (661)

On the second railroad claim, the court affirmed the Board's findings that the public convenience and necessity requirement (662) was satisfied by TRRC III. The court approved the Board's three-part test for public convenience and necessity: 1) whether the applicant is financially fit to construct and operate the railroad, 2) whether there is a public demand, and 3) whether competition would harm existing railroads. Subsequently, the court agreed with the Board's determination that TRRC III satisfied the financial fitness requirement, the clear and public need requirement, and the avoidance of harm to existing competition requirement. The court also noted that the Board did not act arbitrarily in considering a variety of factors to conclude that the public interest would be served by the TRRC III.

On the third railroad claim, the court affirmed the Board's balancing of transportation and environmental concerns. NPRC alleged that the Board improperly included railroad employee concerns and Native American concerns in the environmental category. The court rejected this claim by noting that there was no evidence that including employee concerns and Native American concerns in the environmental analysis led to an improper conclusion.

On the fourth railroad claim, the court affirmed the Board's decision to decide the case itself rather than appoint an administrative law judge. The Board is authorized to appoint an administrative law judge to issue an initial decision on the TRRC III application; however, the Board may reserve consideration if the issue is of "general transportation importance, or that is required for the timely execution of its functions." (663) The court agreed that the Board's decision to issue a decision directly was justified under the circumstances and not outside of the Board's statutory authority.

On the fifth railroad claim, the court concluded that the Board did not err when it did not address labor protection for employees of competing railroads. NPRC alleged that the Board failed to consider labor protection for BNSF employees, a non-applicant railroad company. The court agreed with the Board's interpretation of 49 U.S.C. [section] 10901(e) and [section] 11347, which only mandates labor protections for employees of the applicant railroad. (664)

On the sixth railroad claim, the court reversed the decision of the Board because the Board arbitrarily used TRRC II as a "no build" alternative. The Board evaluated the TRRC III application using TRRC II as a currently-authorized proposal, despite the fact that TRRC made it clear that TRRC II was not viable in its approved form. Therefore, the Board was not justified in relying on TRRC II as an alternative to the proposed TRRC HI.

The Ninth Circuit ruled on over twenty-one claims brought by NPRC against the Surface Transportation Board. The court reversed and remanded on the Board's cumulative impacts analyses of CBM development, other coalmines, and water quality; the adequacy of baseline data; and the staleness of environmental data. The court also reversed and remanded on the Board's reliance on TRRC II as a "no build" alternative.

4. Save the Peaks Coalition v. United States Forest Service, 669 F.3d 1025 (9th Cir. 2012).

Plaintiffs (665) appealed the United States District Court for the District of Arizona's grant of summary judgment for Defendants, (666) United States Forest Service (USFS) and intervenor Arizona Snowbowl (Snowbowl). The district court found that Plaintiffs' claims were barred by the doctrine of lachesff (667) On appeal, Plaintiffs alleged that USFS violated the National Environmental Policy Act (NEPA) (668) and the Administrative Procedure Act (APA) (669) by failing to sufficiently consider the scientific integrity of its analysis of the environmental consequences of making snow with reclaimed wastewater, failing to sufficiently consider the health impacts of human ingestion of such snow, and failing to provide high quality information in its final environmental impact statement (FEIS) (670) The United States Court of Appeals for the Ninth Circuit reversed the district court's rifling that laches applied. However, the court held that neither NEPA nor APA violations occurred because USFS took a sufficient "hard look" at environmental impacts in its FEIS.

Snowbowl is a ski area on the western side of the San Francisco Peaks that is plagued by poor skiing conditions. Because Snowbowl relies entirely upon natural snowfall for its operations, the snow conditions are highly variable. Faced with economic losses, Snowbowl proposed to make artificial snow using Class A+ reclaimed water. During the proposal stage of this plan, USFS released a draft environmental impact statement (DEIS) and accepted comments from the public. Thereafter, USFS prepared an FEIS analyzing the water quality concerns announced by the public. Subsequently, in June 2005, parties affiliated with Plaintiffs sued USFS for allegedly failing to comply with NEPA in Navajo Nation v. United States Forest Service. (671) In deciding the case, the Ninth Circuit upheld summary judgment for Defendants, and Plaintiffs subsequently brought the claims at issue, alleging NEPA violations identical to those brought in Navajo Nation. (672) Because of Plaintiffs' involvement in Navajo Nation, the district court held that the doctrine of laches applied to bar Plaintiffs' claims. (673)

On appeal, Plaintiffs argued that the doctrine of laches did not apply and that Defendants violated NEPA and the APA. Consequently, the issues before the Ninth Circuit were whether the doctrine of laches applied, and whether USFS violated NEPA and the APA by: 1) failing to thoroughly discuss the environmental consequences of making snow from reclaimed water, 2) failing to ensure the scientific integrity of its analysis, and 3) not disseminating quality information. The Ninth Circuit noted that it had jurisdiction under 28 U.S.C. [section] 1291 (674) and reviewed both the applicability of laches and the grant of summary judgment de novo. (675)

The doctrine of laches limits the time in which a party may bring suit: "a party who sleeps on his rights loses his rights." (676) The establishment of a laches defense requires proof that the opposing party lacked diligence in pursuing its claim, and that prejudice resulted from that lack of diligence. (677) In this case, the Ninth Circuit viewed Plaintiffs' decision not to join in the prior suit as "a gross abuse of the judicial process" that was an "egregious" attempt to "evade res judicata and collateral estoppel." (678) Clearly then, Plaintiffs lacked diligence in bringing suit. Even so, Defendants were unable to demonstrate prejudice. For environmental cases, prejudice is concerned with whether the harm to be prevented is now irreversible (679) In this case, construction of artificial snow production had not begun when the suit was filed, and because economic harm does not establish prejudice unless expenditures took place prior to the lawsuit, Defendants could not demonstrate prejudice. Thus, the court held that laches did not apply. (680)

As for the alleged violations of NEPA and the APA, the Ninth Circuit affirmed the district court. In regards to USFS's consideration of human ingestion, NEPA requires agencies to take a "hard look" at proposed actions. (681) Only if an agency's decision is arbitrary and capricious may a court set it aside. (682) Here, the FEIS was "replete" with examples of USFS's consideration of risks posed by ingestion, and USFS even evaluated studies regarding the health effects of drinking reclaimed water. (683) Consequently, the Ninth Circuit found that USFS took a hard look at the issue. Additionally, USFS ensured the scientific integrity of its analysis by independently considering the safety of reclaimed water. (684) Finally, the Ninth Circuit declined to reach the issue of USFS's alleged failure to disseminate high quality information regarding ingestion of reclaimed snow because Plaintiffs failed to preserve the argument on appeal.

In sum, the Ninth Circuit reversed the district court's ruling that the doctrine of laches barred Plaintiffs' claims, but affirmed that neither NEPA nor the APA were violated by USFS's issuance of the FEIS.

5. Southeast Alaska Conservation Council v. Federal Highway Administration, 649 F.3d 1050 .(9th Cir. 2011).

Defendant-Intervenor State of Alaska appealed the judgment of the United States District Court for the District of Alaska that ruled in favor of Plaintiff-Appellees--including Southeast Alaska Conservation Council and other conservation groups (collectively SEACC) (685)--in their suit against the Federal Highway Administration (FHWA). (686) Intervening on behalf of defendants, the State of Alaska argued that the district court erred when it held that the environmental impact statement (EIS) issued by FHWA violated the National Environmental Policy Act (NEPA) (687) because the EIS failed to consider non-construction plans to improve surface access to the Juneau, Alaska area. The district court vacated FHWA's record of decision (ROD) and enjoined both the construction of the project and activities dependent upon the issuance of a valid EIS. The United States Court of Appeals for the Ninth Circuit affirmed the district court's judgment and held that Alaska's EIS violated NEPA because it failed to examine a viable and reasonable alternative to the proposed project or to adequately justify this omission.

In the early 1990s, the Alaska Department of Transportation and Public Facilities (ADOT) aimed to increase access to Juneau from the surrounding communities of the Lynn Canal corridor through the Juneau Access Improvements Project (Project). The Alaska Marine Highway System (AMHS), which included the state-owned ferry system operated by ADOT, linked Juneau to other cities in Alaska, Canada, and the lower forty-eight United States.

Permit requirements and political agendas slowed the Project's progress. In 2002, Alaska Governor Frank Murkowski ordered ADOT to complete the EIS. Since more than three years had passed since the first draft EIS, ADOT determined that a supplemental draft was necessary to address environmental impacts and other substantial changes. Of the ten alternatives to the Project listed in the supplemental draft EIS, a majority involved expensive large-scale construction. (688)

In January 2005, ADOT and FHWA released the supplemental draft EIS for public comment. Despite SEACC comments urging FHWA to consider improving the existing facility, ADOT identified Alternative 2B (689) as the preferred alternative in the final EIS released in January 2006. Because completion of Alternative 2B would have substantial environmental impacts, (690) SEACC again submitted comments focusing on modifications to current ferry operations. FHWA ultimately issued an ROD approving Alternative 2B as the proposed solution in April 2006. ADOT and FHWA began implementing the Project immediately in May 2006.

In August 2006, SEACC sought review of the Project on the grounds that it violated NEPA in addition to other environmental law statutes. (691) SEACC moved for summary judgment on the basis that FHWA acted arbitrarily when it failed to consider the improvement of existing sources as a reasonable alternative. (692) On April 6, 2009, the district court granted SEACC's motion and vacated the ROD, holding that the EIS violated section 4332(2)(C)(iii) of NEPA by failing to consider non-construction alternatives. The district court then enjoined construction of the project and any activities related to the EIS. Alaska appealed this decision on June 4, 2009.

The Ninth Circuit reviews an agency's compliance with NEPA under the Administrative Procedure Act (APA) (693) and must set aside a decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (694) The court evaluates whether a district court based its decision on "relevant factors" and whether the decision was "a clear error of judgment." (695) NEPA requires that a federal agency's EIS thoroughly consider all reasonable alternatives to the proposed action and provide an explanation if an alternative is deemed unacceptable. (696) The court has previously found an EIS inadequate when the agency fails to evaluate reasonable alternatives. (697)

The court agreed with SEACC's argument that FHWA acted arbitrarily in selecting alternatives because all of the suggested alternatives examined in the EIS had similar risks of reducing services and increasing costs. (698) The court found that FHWA's failure to consider the reasonable alternative of improving the existing structure constituted a violation of section 4332(2)(C)(iii) of NEPA. The Ninth Circuit agreed with the district court's finding that the defendants had not considered SEACC's proposal in the final EIS's No Action Alternative. The court then found that the No Action Alternative did not provide "substantial treatment" of a non-construction alternative, in violation of NEPA. (699)

Alaska made two arguments in its defense. Alaska first asserted that the "optimization" measures that it considered during the drafting of the EIS qualified as consideration of a non-construction alternative. In dismissing this argument the court reasoned that the EIS failed to provide the public and policymakers enough information to "make an informed comparison of the alternatives." (700) Alaska next argued that the EIS demonstration that all AMHS ferries were already operating at full capacity served as evidence that SEACC's non-construction proposal was unreasonable. The court found this argument unsupported because the EIS merely contained a historical overview of the ferry system rather than an analysis of the effects of proposed changes in service. Accordingly, the Ninth Circuit affirmed the district court's decision.

In summary, the Ninth Circuit held that FHWA violated NEPA when it failed to consider non-construction alternatives in its EIS for the improvement of surface access from surrounding communities to Juneau.

In a dissent, Judge O'Scannlain reasoned that FHWA considered the possibility of improving existing facilities in the No Action Alternative through non-capital improvements such as deploying different vessels, changing schedules, and experimenting with different levels and types of service. The judge reminded the court that its role is not to determine the correctness of the chosen alternative (701) and reasoned that NEPA does not require the EIS to consider alternatives that are "remote and speculative," (702) such as SEACC's non-construction alternative. He noted that SEACC's proposal would divert vessels from one route to another in contravention of the 2004 Southeast Alaska Transportation Plan, (703) and would directly deprive another area of committed resources. Accordingly, Judge O'Scannlain asserted that Alaska did not act arbitrarily or capriciously in deciding not to separately analyze SEACC's proposal.

6. Tri-Valley CAREs v. United States Department of Energy, 671 F.3d 1113 (9th Cir. 2012).

Plaintiff Tri-Valley Communities Against a Radioactive Environment (Tri-Valley CAREs), (704) a citizens group, filed a lawsuit under the National Environmental Policy Act (NEPA) (705) against the United States Department of Energy (DOE). (706) The lawsuit challenged the sufficiency of a final revised environmental assessment (FREA) prepared by DOE regarding a proposed "biosafety 3" (BSL 3) facility at the Lawrence Livermore National Laboratory (LLNL). The United States District Court for the Northern District of California granted summary judgment to DOE. Tri-Valley CAREs appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit upheld the district court's grant of summary judgment to DOE.

In 2002, the National Nuclear Security Administration, an agency within DOE, authorized construction of a BSL 3 laboratory in Livermore, California at LLNL. BSL 3 laboratories work with dangerous pathogens that can infect humans and travel by air. Although there are more than 1350 BSL 3 laboratories in the United States, the facility at LLNL was the only BSL 3 laboratory operating at the same site as a nuclear laboratory. DOE prepared an environmental assessment (EA) for the proposed facility. Among other things, this EA evaluated the threat posed by an accidental "catastrophic release" of pathogens. DOE used a Maximum Credible Event (MCE) model to simulate the greatest impact that an accidental release of pathogens could reasonably cause. The United States Army (Army) pioneered this model, which mimics the effects of what would happen if defective vials of pathogens broke open in a centrifuge, releasing ten billion pathogens into the air. Whereas the Army found an "extremely remote" chance of public exposure to pathogens when it applied the model to its own labs, DOE found an even lower risk in light of site-specific factors. The BSL 3 facility filters all inside air through two banks of 99.97% effective HEPA filters, is located a half-mile from the nearest public area, and experiences wind speeds that would rapidly diffuse the concentration of remaining pathogens. Accordingly, DOE issued a finding of no significant impact (FONSI).

In 2003, Tri-Valley CAREs filed suit in the Northern District of California, challenging the sufficiency of the EA under NEPA. The district court granted summary judgment to DOE. (707) Tri-Valley CAREs appealed to the Ninth Circuit. The Ninth Circuit reversed in part, on the grounds that although the EA considered the impact of an accidental pathogenic release, DOE failed to consider the impact of an intentional terrorist attack on the facility. (708)

In 2007, DOE prepared a draft revised environmental assessment (DREA) addressing the impacts associated with three terrorist-attack scenarios on the facility: 1) a direct terrorist attack, resulting in loss of containment; 2) the theft and release of pathogens by a terrorist outsider; and 3) the theft and release of pathogens by a terrorist working inside the facility. DOE circulated the DREA for public comment.

In 2008, after evaluating public comments from Tri-Valley CAREs and others, DOE issued its FREA and a FONSI. The FREA was substantially similar to the DREA except for a few substantive updates, including more detailed information about a 2005 anthrax shipping incident. Tri-Valley CAREs filed a new complaint against DOE in the Northern District of California, alleging a multitude of NEPA violations. Tri-Valley CAREs and DOE cross-moved for summary judgment, and the district court granted summary judgment for DOE.

On appeal, Tri-Valley CAREs made three general arguments: 1) DOE failed to take a "hard look" at the risks associated with a potential terrorist attack, as previously directed by the Ninth Circuit; 2) DOE failed to adequately disclose information about several procedural violations relating to the BSL 3 laboratory under section 102(2)(C) of NEPA, (709) thereby depriving the public of a reasonable opportunity to comment; and 3) the district court erred by excluding extra-record evidence from Tri-Valley CAREs that cast doubt on the model DOE used to analyze the impact of a terrorist attack. The Ninth Circuit reviewed the grant of summary judgment on the NEPA claims de novo, (710) and DOE's actions under the arbitrary and capricious standard of the Administrative Procedure Act. (711)

The Ninth Circuit first addressed Tri-Valley CAREs' argument that DOE failed to comply with the Ninth Circuit's mandate that DOE take a "hard look" at the risks associated with a potential terrorist attack. The court reviewed DOE's evaluation of each attack scenario in turn. First, the court considered DOE's evaluation of the impacts of a direct terrorist attack on the BSL 3 facility, such as a "suicidal plane crash or an explosive device delivered by vehicle or on foot." (712) For this scenario, DOE relied upon the same MCE centrifuge model it used in evaluating an accidental release. DOE reasoned that the catastrophic event in the MCE model--an earthquake or accidental plane crash--would result in similar structural damage to the BSL 3 facility as a direct terrorist attack. Additionally, DOE reasoned that the effects of a direct terrorist attack would further mitigate the impact under the MCE model because the BSL 3 at LLNL uses limited quantities of biological agents (as compared to the larger quantity used in the model), fire resulting from a direct attack would kill many pathogens, and exposure to ambient environmental conditions would render most remaining microorganisms innocuous.

Tri-Valley CAREs argued that use of the same MCE model to measure the impact of an accidental release and an intentional terrorist attack was improper. The Ninth Circuit disagreed, noting that a Ninth Circuit case released between Tri-Valley CAREs I and Tri-Valley CAREs II (the case at issue) had specifically approved the use of an MCE model to simulate the outer bounds of a direct terrorist attack, so long as the agency decision to use that model was reasonably justified by agency evidence. (713) In the instant case, DOE reasonably justified its use of the MCE model based on record evidence and site-specific factors that mitigated the effect. The court noted that under NEPA, courts "must refrain from acting as a type of omnipotent scientist," and that when reasonable scientists disagree, the courts must defer to agency experts. (714) Accordingly, DOE took the requisite "hard look" at the threat of terrorist attack.

Second, the court considered DOE's evaluation of the theft and release of pathogens by a terrorist outsider. DOE began its analysis by comparing the type of pathogens available at the LNLL BSL 3 facility to those available at other BSL 3 facilities nationwide. DOE concluded that it was unlikely that a terrorist outsider would attempt to obtain pathogens from the LLNL BSL 3 facility because the facility has more extensive security measures than the other BSL 3 facilities. Specifically, DOE noted that the BSL 3 has a patrolled security fence, a badge requirement for entry, an armed emergency response force, strict limits on who may access individual lab rooms at what times, motion sensors in those lab rooms, and locked freezers.

Tri-Valley CAREs argued that DOE impermissibly used a comparative nationwide analysis to determine that the facility was not an attractive terrorist target because NEPA regulations (715) required DOE to assess the local risks of a release. The Ninth Circuit disagreed, noting that the regulations did not limit DOE's discretion to apply a nationwide analysis, and that agencies have the discretion to identify the geographic scope in which to measure a project's impacts on the environment. (716) Because "the addition of a single, highly-guarded BSL 3 facility at LLNL did not significantly alter the status quo," DOE's determination was reasonable. (717)

Third, and finally, the court considered DOE's evaluation of the theft and release of pathogens by a terrorist working inside the facility. Rather than use an empirical model, DOE used a two-step probabilistic analysis.

First, DOE assessed the probability that an insider with access to BSL 3 pathogens would have the motive to commit a terrorist attack. DOE determined that it was unlikely that an insider would have such a motive because less than ten people had access to pathogens at the BSL 3 facility, and each had to go through independent screenings, authorizations, registrations, and monitoring programs from several different government agencies. Second, DOE evaluated what the risk to the public would be if an insider nevertheless had a terrorist motive. DOE determined that the risk of an effective release was still extremely low because the facility does not contain significant amounts of "ready-to-use" pathogenic material, and the high level of internal scrutiny in the facility would make it extremely difficult to prepare pathogens for release

Tri-Valley CAREs argued that NEPA required DOE to use an empirical rather than probabilistic analysis. The Ninth Circuit disagreed, noting that Ninth Circuit precedent only requires agencies to support a FONSI with a "convincing statement" that the project would not significantly impact the environment. (718) DOE satisfied this requirement because its explanation of the probabilistic analysis carefully defined the scope of inquiry and thoughtfully examined the likelihood of an insider stealing and releasing pathogens.

Having determined that DOE satisfied the Ninth Circuit's mandate from Tri-Valley CAREs I, the court next considered whether DOE failed to adequately disclose information about several procedural violations relating to the BSL 3 laboratory. First, the court addressed Tri-Valley CAREs' claim regarding a 2005 anthrax shipping incident. In 2005, an employee at LLNL shipped several thousand anthrax samples in three separate shipments from LLNL to other research laboratories. Some of the vials were not properly sealed, and employees at one of the labs were exposed to anthrax that had leaked into the interior packaging. There were no public health concerns because no anthrax was detected outside the shipping container. DOE briefly discussed the incident in its DREA, although it did not identify anthrax as the agent involved. DOE determined that the long history of safe shipments from LLNL obviated the need for a more detailed discussion. After public comments on the incident, including from Tri-Valley CAREs, DOE included a more detailed discussion of the incident in its FREA.

Tri-Valley CAREs argued that DOE violated the Ninth Circuit's standard in San Luis Obispo Mothers for Peace v. Nuclear Regulator), Commission (Mothers for Peace I), (719) which held that NEPA's two basic purposes are to: 1) require agency consideration of detailed information concerning significant environmental impacts, and 2) ensure that the public can access and contribute to that body of information through comments. (720) The court disagreed with Tri-Valley CAREs for two reasons. First, DOE satisfied the first purpose of NEPA because DOE carefully considered the risks of fatality from hazardous waste shipping in the original EA, the DREA, and the FREA, and concluded that the risk was less than 0.11 per million shipments, and that the risk from infectious substances was too low to even quantify. Second, DOE satisfied the second purpose of NEPA because Tri-Valley CAREs itself submitted comments on the 2005 anthrax shipping incident.

Next, the court declined to determine whether DOE's decision not to discuss "restricted" experiments in its FREA was arbitrary and capricious because Tri-Valley CAREs had not addressed that claim in its opening brief to the district court. (721)

The court also considered whether DOE was required to supplement its FREA after the results of an independent DOE security assessment in 2008 gave the LLNL facility a "significant weaknesses" rating--the lowest rating available. Tri-Valley CAREs argued that NEPA regulations require supplementation of a NEPA analysis in response to significant new information relevant to environmental impacts of a project, (722) and that in this case, DOE failed to supplement its FREA. The Ninth Circuit disagreed with Tri-Valley CAREs, noting that DOE prepared a supplemental report after the critical security assessment. DOE determined that the assessment did not reveal significant new information impacting its assessment of the three terrorist attack scenarios, and that it was thus not required to supplement the FREA. The Ninth Circuit held that it was required to defer to DOE's findings that a supplemental report was not required. (723)

Having determined that DOE properly complied with NEPA, the Ninth Circuit finally considered whether the district court abused its discretion by rejecting Tri-Valley CAREs' motion to supplement the record with a report that undermined DOE's reliance on the MCE model. The Ninth Circuit first noted that Tri-Valley CAREs' motion failed to comply with the Northern District of California Civil Local Rule 7-11(a) (724) and that the district court thus operated well within its discretion to deny Tri-Valley CAREs' motion. Regardless, the Ninth Circuit held that the district court could have denied Tri-Valley CAREs' motion on the merits because extra-record material may only be introduced if it falls within one of four narrowly drawn categories and was available at the time the agency made its decision. (725) Because Tri-Valley CAREs sought to introduce a report that was completed almost two years after litigation began in Tri-Valley CAREs II, the district court did not abuse its discretion in denying Tri-Valley CAREs' motion to supplement the record.

In conclusion, the Ninth Circuit affirmed the district court's grant of summary judgment to DOE because DOE gave a "hard look" at the risk of a terrorist attack at the LLNL BSL 3 facility and adequately disclosed information pertaining to procedural violations at the facility so that the public had a reasonable opportunity to comment. Additionally, the court found that the district court did not abuse its discretion by denying Tri-Valley CAREs' motion to supplement the record because the motion failed to comply with local rules, and the supplemental evidence would not have been available to DOE at the time it made its final FONSI.

(1) The named defendants were the County of Los Angeles, Los Angeles County Flood Control District, Michael Antonovich, Yvonne Burke, Gloria Molina, Zev Yaroslavsky, Dean D. Efstathiou, and Don Knabe.

(2) Federal Water Pollution Control Act, 33 U.S.C. [section][section] 1251-1387 (2006).

(3) Id. [section] 1342. In 1987, Congress amended the CWA to include a stormwater permit system. Id. [section] 1342(p); see Natural Res. Def. Council v. U.S. Envtl. Prot. Agency, 966 F.2d 1292, 1295 (9th Cir. 1992); see also National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharge, 55 Fed. Reg. 47,990, 47,994 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122, 123, 124) (noting Congress's intent to regulate discharges from municipal sewer systems and other priority storm water discharges through a permit program).

(4) Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 840 (9th Cir. 2003).

(5) Natural Res. Def. Council, Inc. v. County. of L.A., 673 F.3d 880, 884 (9th Cir. 2011).

(6) 33 U.S.C. [section] 1251(a) (2006).

(7) S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004).

(8) 33 U.S.C. [section] 1362(12) (2006); see Comm. to Save Mokelunme River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993).

(9) 33 U.S.C. [section] 1362(14) (2006). A point source is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, roiling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged., Id. (emphasis added).

(10) 33 U.S.C. [section] 1342(a), (p) (2006); Miccosukee Tribe of Indians, 541 U.S. at 102.

(11) CAL. REG'L WATER QUALITY CONTROL BD. L.A. REGION, ORDER NO. 01-182/NPDES PERMIT NO. CAS004001, WASTE DISCHARGE REQUIREMENTS FOR MUNICIPAL STROM WATER AND URBAN RUNOFF DISCHARGES WITHIN THE COUNTY OF LOS ANGELES, AND THE INCORPORATED CITIES THEREIN, EXCEPT THE CITY OF LONG BEACH 3 (2007)[hereinafter PERMIT], available at www.waterboards. ca.gov/losangleles/waterissues/programs/stormwater/municipal/la_ms4/final %20order%20no.%2001-182%20as%20amended%20on%20april%2014%20211.pdf.

(12) Natural Res. Def. Council, Inc. v. County. of L.A., 673 F.3d 880, 888 (9th Cir. 2011).

(13) Id

(14) Id. Mass emission monitoring measures all the constituents in water to give a cumulative picture of the pollutant load. Id

(15) Natural Res. Def. Council v. County of L.A., No. CV 08-1467, 2010 WL 761287, at * 6 (C.D. Cal. Mar. 2, 2010).

(16) Id at * 7.

(17) PERMIT, supranote 11, at 23.

(18) See Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977).

(19) See also Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency (NRDC v. EPA), 966 F.2d 1292, 1296 (9th Cir. 1992) (citing National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water DisCharges; Application Deadlines, 56 Fed. Reg. 56,548 (Nov. 5, 1991) (codified at 40 C.F.R. pt. 122)).

(20) See Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999); NRDC v. EPA, 966 F.2d at 1296 ("Recognizing both the environmental threat posed by storm water runoff and EPA's problems in implementing regulations, Congress passed the Water Quality Act of 1987 ....").

(21) Natural Res. Def. Council, Inc. v. County. of Los Angeles, 673 F.3d 880, 895 (9th Cir. 2011); see also NW. Envtl. Advocates v. City of Portland, 56 F.3d 979, 986 (9th Cir. 1995) ("The plain language of CWA [section] 505 authorizes citizens to enforce M/permit conditions.").

(22) PERMIT, supra note 11, at 71 ("Each Permittee must comply with all terms, requirements, and conditions of this Order. Any violation of this order constitutes a violation of the Clean Water Act ... and is grounds for [an] enforcement action, Order termination, Order revocation and reissuance, denial of an application for reissuance; or a combination thereof.").

(23) Id at 18.

(24) Federal Water Pollution Control Act, 33 U.S.C. [section] 1362(12) (2006).

(25) See id [section][section] 1342(p)(2), 1362(14).

(26) The jurisdictional elements of a CWA violation include the discharge from a point source into a navigable water. Id [section] 1362(12); see Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999).

(27) W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 167 (4th Cir. 2010) (quoting 33 U.S.C. [section] 1311(a) (2006)); see also 33 U.S.C. [section] 1362(14) (2006) (defining "point sources" to include channels).

(28) Jensen is incorporated under the laws of California, and its principle place of business is located in Monterey, California. Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 936 (9th Cir. 2011).

(29) 42 U.S.C. [section][section] 7401-7671q (2006).

(30) FED. R. CIV. P. 12(c).

(31) See CAL. CODE REGS. tit. 17, [section][section] 93115-93115.15 (2011).

(32) 42 U.S.C. [section] 7543(e)(1) (2006).

(33) Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004).

(34) Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990).

(35) 42 U.S.C. [section] 7416 (2006).

(36) Id. [section][section] 7521, 7547.

(37) Id. [section] 7543(a), (e).

(38) Id. [section] 7543(e)(1).

(39) Pac. Merch. Shipping Ass'n v. Goldstene, 517 F.3d 1108, 1113 (9th Cir. 2008).

(40) Nat'l Ass'n of Home Builders v. San Joaquin Valley Unified Air Pollution Control Dist., 627 F.3d 730, 734 (9th Cir. 2010).

(41) 42 U.S.C. [section] 7543(e)(2) (2006).

(42) CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

(43) Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-53 (2004).

(44) Jensen Family Farms, Inc., 644 F.3d 934, 939-40 (9th Cir. 2011) (distinguishing emission limits from equipment and design requirements).

(45) Engine Mfrs. Ass'n, 541 U.S. at 252-53.

(46) Engine Mfrs. Ass'n v. U.S. Envtl. Prot. Agency, 88 F.3d 1075, 1079-80 (D.C. Cir. 1996).

(47) 541 U.S. at 252-53.

(48) 504 U.S. 374, 383 (1992).

(49) Id at 390 (internal quotation marks omitted).

(50) CAL. CODE RUGS. tit. 13, [section][section] 2450-2465 (2011).

(51) United States v. Alexander, 48 F.3d 1477, 1491 (9th Cir. 1995) (noting that under rational basis review, the burden is on the defendant to show that a statute violates due process by "proving the absence of a rational relationship between [the statute] and a legitimate governmental objective").

(52) See Hormel v. Helvering, 312 U.S. 552, 556 (1941) (noting that "[o]rdinarily an appellate court does not give consideration to issues not raised below").

(53) 42 U.S.C. [section][section] 7401-7671q (2006).

(54) Id. [section][section] 7407(a), 7410(a)(2)(A).

(55) Air Quality Control Regions, Criteria, and Control Techniques: Attainment Status Designations, 43 Fed. Reg. 40,412 (Sept. 11, 1978 (codified at 40 C.F.R. pt. 81).

(56) Final Rulemaking on Approval of the Montana State Implementation Plan, 45 Fed. Reg. 2,034 (Jan. 10, 1980 (codified at 40 C.F.R. pt. 52).

(57) Approval and Promulgation of State Implementation Plans; Call for Sulfur Dioxide SIP Revisions for Billings/Laurel, MT, 58 Fed. Reg. 41,430 (proposed Aug. 4, 1993) (codified at 40 C.F.R. pt. 52).

(58) Approval and Promulgation of Air Quality Implementation Plans; Montana; Billings/Laurel Sulfur Dioxide State Implementation Plan, 67 Fed. Reg. 22,168 (May 2, 2002); 68 Fed. Reg. 27,908 (May 22, 2003) (codified at 40 C.F.R. pt. 52).

(59) 42 U.S.C. [section] 7410(e) (2006).

(60) Id. [section] 7607(d)(9)(A)-(C).

(61) 467 U.S. 837, 842-43 (1984).

(62) Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 891-92 (9th Cir. 1986).

(63) Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 869 (9th Cir. 2003).

(64) See Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (describing the two conditions that must be satisfied for agency action to be "final").

(65) See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-1 (2000) ("[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.').

(66) See Clean Air Act, 42 U.S.C. [section] 7410(a)(2) (2006) (outlining the minimum statutory requirements of a SIP). 67

(67) Fed. Reg. 22,168, 22,185 (May 2, 2002) (codified at 40 C.F.R. pt. 52).

(68) 42 U.S.C. [section] 7410(a)(2)(K)(i) (2006).

(69) S. REP. NO. 101-228, at 15 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3401.

(70) See Sierra Club v. U.S. Envtl. Prot. Agency, 719 F.2d 436, 441 (D.C. Cir. 1983) (discussing the congressional intent of 42 U.S.C [section] 7423).

(71) GEP calls for "the height necessary to ensure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles." 42 U.S.C. [section] 7423(c) (2006).

(72) 67 Fed. Reg. at 22,209.

(73) 40 C.F.R. [section] 51.100(kk)(1) (2011).

(74) Id.

(75) Stack Height Regulation, 50 Fed. Reg. 27,892, 27,898 (July 8, 1985) (codified at 40 C.F.R. pt. 51).

(76) see Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 1224, 1241 (D.C. Cir. 1988).

(77) 40 C.F.R. [section] 51.100(kk)(1) (2011) (emphasis added).

(78) Flares are incineration devices that capture gases released by equipment--they are most often used in emergency situations but also during routine startup, shutdown, and maintenance.

(79) 40 C.F.R. [section] 51.112(a) (2010).

(80) Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003).

(81) See Nat'l Petrochemical & Refiners Ass'n v. U.S. Envtl. Prot. Agency, 630 F.3d 145, 155-56 (D.C. Cir. 2010) (holding that where Congress is silent on the effect of EPA's delay in promulgating revised regulations, there is no correlating presumption that Congress intended EPA to lose authority to act).

(82) Mont. Sulphur & Chem. Co. v. U.S. Envtl. Prot. Agency, 666 F.3d 1174, 1191 (9th Cir. 2012).

(83) See, e.g., Mich. Dep't of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000).

(84) Federal Implementation Plan for the Billings/Laurel, Montana, Sulfur Dioxide Area, 71 Fed. Reg. 39,259, 39,268 (proposed July 12, 2006) (to be codified at 40 C.F.R pt. 52).

(85) Federal Implementation Plan for the Billings/Laurel, Montana, Sulfur Dioxide Area, 73 Fed. Reg. 21,418, 21,444-45 (April 21, 2008) (codified at 40 C.F.R pt. 52).

(86) Approval and Promulgation of Air Quality Implementation Plans; Montana; Billings/Laurel Sulfur Dioxide State Implementation Plan, 67 Fed. Reg. 22,168, 22,207 (May 2, 2002) (codified at 40 C.F.R pt. 52).

(87) Petitioners are the Natural Resources Defense Council, Inc., East Yard Communities for Environmental Justice, Coalition for a Safe Environment, and Endangered Habitats League.

(88) Respondent is the United States Environmental Protection Agency. Respondent-Intervenors are the Southern California Association of Governments and the South Coast Air Quality Management District.

(89) Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d 1183, 1187 (9th Cir. 2011).

(90) Clean Air Act, 42 U.S.C. [section][section] 7401-7671q (2006).

(91) Id. section] 7407(a).

(92) Id. [section] 7407(d).

(93) Id. [section] 7410(a)(1).

(94) Id.

(95) See, e.g., id. [section] 7502(a)(2)(A)-(B).

(96) Id [section] 7502(c)(2). "Reasonable further progress" refers to annual incremental reductions in emissions of the relevant air pollutant required to ensure attainment of the NAAQS. Id. [section] 7501(1).

(97) See, e.g., 40 C.F.R. [section] 93.101 (2010) (defining "control strategy implementation plan revision").

(98) Id. (defining "motor vehicle emissions budget").

(99) See, e.g., National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38,652, 38,654 n.1, n.5 (July 18, 1997) (to be codified at 40 C.F.R. pt. 50) (describing PM-10 as "particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers," and PM-2.5 as "particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers").

(100) 40 C.F.R. [section][section] 51.1007-51.1009 (2010).

(101) Id. [section][section] 51.008(b), 51.009(c)(2),(d).

(102) Id. [section] 51.009(d).

(103) 42 U.S.C. [section][section] 7506(c)(1), (2) (2006).

(104) Id.; see Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 638 F.3d 1183, 1187 (9th Cir. 2011) (recognizing such a conflict).

(105) Natural Res. Def. Council, Inc., 638 F.3d at 1187. "Conformity" means the transportation plan conforms to the SIP's purpose of reducing air quality violations and reaching air quality standards, and ensuring that activities will not contribute to future violations. 42 U.S.C. [section] 7506(c)(1) (2006).

(106) See 40 C.F.R. [section] 93.118 (2010); see also Transportation Conformity Rule Amendments: Flexibility and Streamlining, 62 Fed. Reg. 43,780, 43,782 (Aug. 15, 1997) (to be codified at 40 C.F.R. pts. 51, 93) (describing the conformity rule as allowing EPA to make an initial "cursory review").

(107) 40 C.F.R. [section] 93.118(e)(4) (2010). These criteria include: 1) endorsement by the governor and subject to a state public hearing; 2) prior consultation with federal, state, and local agencies; 3) a clearly identified and quantified emissions budget; 4) achievement of RFP, attainment, or maintenance; 5) an emissions budget consistent with and related to the plan's emissions inventory and control measures; and 6) explanation and documentation of previous changes to emissions budgets or control measures. Id.

(108) 62 Fed. Reg. 43,780, 43,782 (Aug. 15, 1997) (to be codified at 40 C.F.R. pts. 51, 93).

(109) 40 C.F.R. [section] 81.305 (2010). South Coast Air Basin includes Orange County and portions of Los Angeles, Riverside, and San Bernardino Counties. See id.

(110) Natural Res. Def. Council, Inc., 638 F.3d at 1189. South Coast Air Basin has a baseline year of 2004, milestone years of 2009 and 2012, and attainment year of 2015. Id at 1188.

(111) Id. at 1189.

(112) Administrative Procedure Act (APA), 5 U.S.C. [section] 706(2)(A) (2006). The APA is silent as to the standard of review over agency adequacy determinations regarding SIPs. The court notes, however, that the United States Supreme Court directs appellate courts to proceed under the APA's general standards of review for agency adequacy determinations. Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004) (citing Alaska Dep't of Envtl. Conservation v. U.S. Envtl. Prot. Agency, 540 U.S. 461, 496-97, n.18 (2004)).

(113) Cerrillo-Perez v. U.S. Immigration & Naturalization Serv., 809 F.2d 1419, 1422 (9th Cir. 1987).

(114) Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) ("We must give substantial deference to an agency's interpretation of its own regulations."). In this case EPA was not interpreting statutory language, but rather its own regulations in furtherance of the Clean Air Act. See 40 C.F.R. [section] 93.118(e)(4) (2010).

(115) 40 C.F.R. [section][section] 51.1007-51.1009 (2010).

(116) Id. [section] 51.1009(c)(2).

(117) Id. [section] 51.1009(d).

(118) See id. [section] 51.1009(f) (referring to the target attainment-year emissions as the "full implementation inventory").

(119) NRDC was joined as a Plaintiff-Appellant by Communities for a Better Environment, the Coalition for a Safe Environment, and Desert Citizens Against Pollution.

(120) SCAQMD was joined by its Governing Board and Barry Wallerstein (Defendants-Appellees), and Orange County Sanitation District, Southern California Edison Co., County Sanitation District No. 2 of Los Angeles County, El Segundo Power LLC, Los Angeles Area Chamber of Commerce, and the Los Angeles County Business Federation (Intervenor-Defendants-Appellees).

(121) FED. R. CIV. P. 12(b)(1), (6).

(122) Clean Air Act, 42 U.S.C. [section][section] 7401-7671q (2006).

(123) Id. [section] 7409(a).

(124) Id. [section] 7410(a), (k).

(125) Id. [section] 7407(d)(1)(A)(i).

(126) Id. [section] 7503(a)(1)(A).

(127) See SCAQMD Regulation XIII: New Source Review, [section][section] 1301-1325 (2011), available at http://www.aqmd.gov/rules/reg/reg13_tofc.html (governing New Source Review--i.e. pre-construction review requirements for new and modified facilities under CAA).

(128) Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008).

(129) 42 U.S.C. [section] 7607(b)(1) (2006).

(130) Id. [section] 7607(b)(2).

(131) See Revisions to the California State Implementation Plan, South Coast Air Quality Management District, 71 Fed. Reg. 35,157 (June 19, 2006) (to be codified at 40 C.F.R. pt. 52).

(132) Validity requirements for Regulation XIII are a part of Rule 1309, which is titled "Emission Reduction Credits." Rule 1309 details the requirements an applicant must provide in order to convert its own emission reductions into tradable ERCs. See SCAQMD Regulation XIII [section] 1309(b) (2011), available at http://www.aqmd.gov/rules/reg/reg13/r1309.pdf.

(133) Natural Res. Def. Council, Inc. v. S. Coast Air Quality Mgmt. Dist., 651 F.3d 1066, 1072 (9th Cir. 2011); see also SCAQMD Regulation XIII [section] 1303(b)(2)(A) (2011), available at http://www.aqmd.gov/rules/reg/reg13/r1303.pdf.

(134) The "tracking system" would require SCAQMD to provide for "necessary offsets required to meet the appropriate statutory offset ratio," and to "mitigate emissions from those sources exempted from offsets under Rule 1304 which are not exempt from federal regulation." Approval and Promulgation of Implementation Plan for South Coast Air Quality Management District, 61 Fed. Reg. 64,291, 64,292 (Dec. 4, 1996) (to be codified at 40 C.F.R. pt. 52).

(135) Natural Res. Def. Council, Inc., 651 F.3d at 1073; see 61 Fed. Reg. at 64,292.

(136) El Comite para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir. 2008) (noting that the court will not consider a preamble unless the regulation itself is ambiguous (citing Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000))). Generally, an agency's non-binding interpretation of its own regulation is entitled to deference only when it is persuasive, as in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), or when the regulation's language is ambiguous under Auer v. Robbins, 519 U.S. 452, 461 (1997). Christensen, 529 U.S. at 587-88.

(137) Goldstene was joined by Defendant-Intervenors Natural Resources Defense Council, Inc., Coalition for Clean Air, Inc., and South Coast Air Quality Management District.

(138) U.S. CONST. art. I, [section] 8; Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 252 (1829) (recognizing Congress's "power to regulate commerce in its dormant state").

(139) See generally Brittan J. Bush, The Answer Lies in Admiralty: Justifying Oil Spill Punitive Damages Recovery Through Admiralty Law, 41 ENVTL. L. 1255 (2011) (arguing that the Oil Polultion Act of 1990 does not preempt general maritime and state maritime law from awarding punutive damages).

(140) See CAL. CODE REGS. tit. 13, [section] 2299.2(b) (2009); id. at tit. 17, [section] 93118.2(b).

(141) Bunker fuel has approximately 25,000 parts per million (ppm) of sulfur in comparison to diesel fuel with 15 ppm. Pac. Merch. Shipping Ass'n v. Goldstene, 639 F.3d 1154, 1159-60 (9th Cir. 2011).

(142) CARB estimated that 300 premature deaths result from PM emissions from vessels, excluding cancer effects. Id. at 1160.

(143) The South Coast Air Basin consists of Orange County and the non-desert portions of Los Angeles, Riverside, and San Bernardino counties. Id. The South Coast Air Basin has long been in noncompliance with federal air quality standards, and the South Coast Air Quality Management District claimed that compliance would be impossible without these regulations. Id.

(144) See sources cited supra note 140.

(145) Pac. Merch. Shipping Ass'n, 639 F.3d at 1158.

(146) The South Coast Air Basin must achieve national ambient air quality standards for PM2.5 by 2014, or it may risk the reduction or termination of federal transportation funding. Id. at 1160.

(147) See Clean Air Act, 42 U.S.C. [section] 7509(b) (2006).

(148) CAL. CODE REGS. tit. 13, [section] 2299.2(b) (2009); id. at tit. 17, [section] 93118.2(b).

(149) See id. at tit. 17, [section] 93118.2(c) (exempting "ocean-going vessel voyages that are comprised of continuous and expeditious navigation through any Regulated California Waters for the purpose of traversing such bodies of water without entering California internal or estuarine waters or calling at a port, roadstead, or terminal facility"); see also Pac. Merch. Shipping Ass'n, 639 F.3d at 1158 (describing such ships' travel as "innocent passage").

(150) CAL. CODE REGS. tit. 13, [section] 2299.2(a) (2009); id. at tit. 17, [section] 93118.2(a).

(151) Id. at tit. 17, [section] 93118.2(e)(2), (f).

(152) Id. [section] 93118.20).

(153) 42 U.S.C. [section][section] 7401-7671q (2006).

(154) 43 U.S.C. [section][section] 1301-1315 (2006).

(155) Pac. Merch. Shipping Ass'n v. Goldstene, 517 F.3d 1108, 1109 (9th Cir. 2008).

(156) Id. at 1115.

(157) Specifically, PMSA challenged the application of CAL. CODE REGS. tit. 13, [section] 2229.2 and CAL. CODE REGS. tit. 19, [section] 93118.1.

(158) Pac. Merch. Shipping Ass'n, 639 F.3d 1154, 1162 (9th Cir. 2011).

(159) United States v. California (California 1), 332 U.S. 19, 22 (1947); see also United States v. Louisiana. (Louisiana 1), 339 U.S. 699, 701 (1950).

(160) United States v. Louisiana (Louisiana III), 446 U.S. 253, 256 (1980).

(161) Submerged Lands Act, 43 U.S.C. [section] 1312 (2006); see also People v. Weeren, 607 P.2d 1279, 1283 (Cal. 1980) (recognizing that California law previously delineated the sea boundary to extend three miles seaward from the California coast).

(162) Implicit field preemption arises when Congressional intent leaves no role for state or local input or in an area, such as foreign affairs, where the federal interest is so dominant that it will preclude any state action. Barber v. Hawwai'i., 42 F.3d 1185, 1189 (1994) (quoting Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991)).

(163) See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

(164) 529 U.S. 89 (2000).

(165) Id. at 108 (declining to apply the presumption against preemption to state law regulating in the field occupied by the Port and Waterways Safety Act of 1972).

(166) 555 U.S. 555 (2009).

(167) Id. at 571-72.

(168) Seeid at 565 n.3 (internal quotations omitted).

(169) See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1960) (noting that legislation designed to address air pollution "clearly falls within the exercise of even the most traditional concept of ... the police power").

(170) Pac. Merch. Shipping Ass'n, 639 F.3d 1154, 1168 (2011).

(171) See United States v. Maine, 469 U.S. 504, 513 (1985); United States v. Louisiana (Louisiana II), 363 U.S. 1, 35 (1960); California I, 332 U.S. 19, 35-36 (1947).

(172) California I, 332 U.S. at 36; see also Toomer v. Witsell, 334 U.S. 385, 393 (1948) (allowing the state to maintain its sponge fishery as it was within its police power).

(173) The effects test allows individual states to exercise extraterritorial jurisdiction based on effects within the state. Strassheim v. Daily, 221 U.S. 280, 285 (1911).

(174) Pac. Merch. Shipping Ass'n, 639 F.3d at 1170.

(175) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section][section] 402(1)(c), 403 (1987).

(176) Pac. Merch. Shipping Ass'n v. Aubry, 918 F.2d 1409, 1424-25 (9th Cir. 1990).

(177) Guller v. Golden Age Fisheries, 14 F.3d 1405, 1409 (9th Cir. 1994)

(178) See State v. Jack, 125 P.3d 311, 322 (Alaska 2005) (affirming State's jurisdiction over a criminal assault on an Alaskan ferry in Canadian waters); People v. Weeren, 607 P.2d 1279, 1285 (Cal. 1980) (affirming conviction of California residents with state fishing licenses for violating California commercial swordfish regulations by using spotter aircraft registered in state to catch fish outside California's territorial waters); State v. Stephansky, 761 So. 2d 1027, 1036 (Fla. 2000) (affirming State's power to criminally charge a citizen on a cruise ship because it affected Florida's tourism industry).

(179) See Gillis v. Lousiana, 294 F.3d 755, 761 (5th Cir. 2002); Warren v. Dunlap, 532 F.2d 767, 772 (1st Cir. 1976).

(180) Warren, 532 F.2d at 772.

(181) Gillis, 294 F.3d at 761.

(182) Pac. Merch. Shipping Ass'n v. Goldstene, 639 F.3d 1154, 1174 (9th Cir. 2011).

(183) See S. Pac. Co. v. Jensen, 244 U.S. 205, 216 (1917) (recognizing that a state regulation is invalid if it "works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations").

(184) The Supreme Court requires a two-tiered approach to determine if a state regulation runs afoul of the Dormant Commerce Clause. Pac. Merch. Shipping Ass'n, 639 F.3d at 1177 (citing Or. Waste Sys. Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994)). If the state regulation directly burdens interstate commerce or discriminates against out-of-state interests, it is presumptively invalid. Id. If, however, the state regulation merely has an "incidental effect" on interstate commerce, the state regulation is subjected to a balancing test. Id Under this balancing test, a state regulation is preempted if the burdens it imposes on interstate commerce outweighs the putative benefits to the extent that the state regulation is unreasonable or irrational. Id.

(185) Id. at 1178.

(186) See Klenwell Biohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 395-96 (9th Cir. 1995).

(187) See In re Exxon Valdez, 484 F.3d 1098, 1101 (9th Cir. 2007) (applying such a balancing test in the context of maritime law).

(188) The sunset clause provides for the termination of the Vessel Fuel Rules when the federal government adopts and enforces requirements that will achieve equivalent emission reductions. Pac. Merch. Shipping Ass'n, 639 F.3d at 1180.

(189) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [section][section] 9601-9675 (2006).

(190) The City brought common law tort claims of public and private nuisance. See People ex rel. Gallo v. Acuna, 929 P.2d 596, 604 (Cal. 1997) (noting California law mirrors the Restatement (Second) of Torts definition of public nuisance: substantial and unreasonable interference with a public right); San Diego Gas & Elec. Co. v. Superior Court, 920 P.2d 669, 696-97 (Cal. 1996) (noting private nuisance requires substantial and unreasonable interference with plaintiff's enjoyment of the land).

(191) LOS ANGELES CHARTER & ADMIN. art. VI, [section] 651 (2011).

(192) 42 U.S.C. [section] 9607(a)(2) (2006).

(193) See People ex rel. Gallo, 929 P.2d at 604; see also San Diego Gas and Elec. Co., 920 P.2d at 696-97.

(194) 42 U.S.C. [section][section] 9601(20)(A)(ii), 9607(a)(2) (2006); see also United States v. Bestfoods, 524 U.S. 51, 56 (1998).

(195) 42 U.S.C. [section] 9601(20)(A)(ii) (2006) (describing an owner or operator as "any person owning or operating [a] facility").

(196) See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir. 2011).

(197) Kendall-Jackson Winery, Ltd., v. E. & J. Gallo Winery, 150 F.3d 1042, 1046 (9th Cir. 1998).

(198) DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

(199) 42 U.S.C. [section] 9607(a)(2) (2006) (emphasis added).

(200) Id. [section] 9601(20)(A)(ii).

(201) United States v. Bestfoods, 524 U.S. 51, 56, 66 (1998).

(202) See Long Beach Unified Sch. Dist. v. Dorothy B. Godwin Cal. Living Trust, 32 F.3d 1364, 1370 (9th Cir. 1994).

(203) Id at 1368.

(204) Id. at 1368-69.

(205) See United States v. S.C. Recycling & Disposal, Inc., 653 F. Supp. 984, 1002-03 (D.S.C. 1986), aff'd in part, vac'd in part sub nom. United States v. Monsanto Co., 858 F.2d 160, 176 (4th Cir. 1988).

(206) Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 330-31 (2d Cir. 2000).

(207) See, e.g., Mesa Verde Co. v. Montezuma Cnty. Bd. of Equalization, 898 R2d 1, 11 (Colo. 1995); Spanish River Resort Corp. v. Walker, 497 So. 2d 1299, 1301 (Fla. Dist. Ct. App. 1986); Stansbury v. MDR Dev., L.L.C., 871 A.2d 612, 620-21 (Md. Ct. Spec. App. 2005); Peoples Gas, Light, & Coke Co. v. Harrison Cent. Appraisal Dist., 270 S.W.3d 208, 212-13 (Tex. App. 2008).

(208) Dirs. of Fallbrook Irrigation Dist. v. Abila, 39 P. 794, 796 (Cal. 1895) (citation omitted).

(209) City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 451 (9th Cir. 2011).

(210) See People ex rel. Gallo v. Acuna, 929 P.2d 596, 604 (Cal. 1997); RESTATEMENT (SECOND) OF TORTS [section][section] 838, 839 (1979); see also San Diego Gas & Elec. Co. v. Superior Court, 920 P.2d 669, 696-97 (Cal. 1996).

(211) See RESTATEMENT (SECOND) OF TORTS [section] 839 cmt. i (1979).

(212) FED. R. CIV. P. 15(a)(2).

(213) Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

(214) 42 U.S.C. [section][section] 9601-9675 (2006). Section 310 details CERCLA's citizen suit provision. See id. [section] 9659(a).

(215) FED. R. CIV. P. 12(b)(1).

(216) See generally Anthony R. Chase & John Mixon, CERCLA: Convey to a Pauper and Avoid Cost Recovery Under Section 107(A)(1)?, 33 ENVTL. L. 293 (2003) (discussing the "polluter pays" principle).

(217) See Pakootas v. Teck Cominco Metals, Ltd. (Pakootas I), 452 F.3d 1066, 1068, 1070 (9th Cir. 2006); 42 U.S.C. [section] 9659(a)(1) (2006) ("[A]ny person may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter....").

(218) See Pakootas I, 452 F.3d at 1070.

(219) Id. at 1071, 1082.

(220) Id. at 1077-79. The decision in Pakootas I rested on CERCLA's definition of "facility," which the court interpreted to mean "any site or area where a hazardous substance has ... come to be located." Id at 1074.

(221) Pakootas v. Teck Cominco Metals, Ltd. (Pakootas II), 646 F.3d 1214, 1217-18 (9th Cir. 2011).

(222) See 42 U.S.C. [section] 9659(a)(1) (2006).

(223) 42 U.S.C. [section] 9613(h) (2006) ("Timing of review--No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 ... or under State law which is applicable or relevant and appropriate under section 9621 of this title ... to review any challenges to removal or remedial action selected under section 9604 of this title.").

(224) Id. [section] 9613(h)(2) (exempting "action[s] to enforce an order issued under section 9606(a) of this title or to recover a penalty

for violation of such order.").

(225) 546 U.S. 500 (2006).

(226) Id. at 516.

(227) See supra note 223.

(228) 42 U.S.C. [section] 9613(h) (2006).

(229) Pakootas II, 646 F.3d 1214, 1221 (9th Cir. 2011).

(230) Id. at 1224-25.

(231) See 42 U.S.C. [section] 9613(h)(2), (4) (2006).

(232) CAL. CIV. CODE [section] 3479 (West 1997).

(233) CAL. HEALTH & SAFETY CODE [section] 33459-33459.8 (West 1999).

(234) Id. [section] 33459 (West 1999). The Polanco Act is the corollary state Superfund statute to the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

(235) See CAL. CIV. CODE [section] 3479 (West 1997).

(236) County. of Santa Clara v. Atl. Richfield Co., 40 Cal. Rptr. 3d 313, 325 (Cal. Ct. App. 2006).

(237) Redevelopment Agency of the City of Stockton v. BNSF Ry. Co. (City of Stockton), 643 F.3d 668, 675 (9th Cir. 2011).

(238) Id.

(239) See RESTATEMENT (SECOND) OF TORTS [section] 839 (1979) (subjecting a possessor of land of liability when in possession by an abatable artificial condition on such land); see also id [section] 839 cmt. f (defining "abatable physical conditions" as those that "reasonable persons would regard as being susceptible of abatement by reasonable means.").

(240) City of Stockton, 643 F.3d at 675-76 (citing Leslie Salt Co. v. S.F. Bay Conservation and Dev. Comm'n, 153 Cal. App. 3d 605, 621 (Cal. Ct. App. 1984)).

(241) City of Stockton, 643 F.3d at 676.

(242) Id.

(243) See City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 453 (9th Cir. 2011).

(244) Id.

(245) City of Stockton, 643 F.3d at 676.

(246) CAL. HEALTH & SAFETY CODE [section] 33459-33459.8 (West 1999).

(247) Id. [section] 33459.4(a).

(248) Id. [section] 33459(h).

(249) CAL. WATER CODE [section] 13304(a) (West 2009).

(250) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [section] 9607(a) (2006).

(251) CAL. HEALTH & SAFETY CODE [section] 25323.5 (West 2006).

(252) CAL. WATER CODE [section] 13304(a) (West 2009).

(253) 42 u.s.c. [section] 9607(a)(2) (2006) (ascribing liability to "any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of").

(254) See Parr--Richmond indus. Corp. v. Boyd, 272 P.2d 16, 22 (1954) (noting that a land sales contract renders the purchaser the equitable owner of the land).

(255) City of Stockton, 643 F.3d 668, 679 (9th Cir. 2011) (citing Corona Unified Sch. Dist. of Riverside Cnty. v. Vejar, 165 Cal. App. 2d 561, 566 (Cal. Ct. App. 1958)).

(256) City of Stockton, 643 F.3d at 679.

(257) See Long Beach Unified Sch. Dist. v. Godwin Cal. Living Trust, 32 F.3d 1364, 1370 (9th Cir. 1994); see also City of Los Angles v. San Pedro Boat Works, 635 F.3d 440, 451-52 (9th Cir. 2011).

(258) In addition to R.R. Street & Co., Defendants included several property management companies, as well as the manufacturers of several chemicals used in the dry-cleaning process.

(259) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 26 U.S.C. [section][section] 4611-4662, 42 U.S.C. [section][section] 6911a, 9601-9675 (2006).

(260) Team Enterprises, LLC. v. W. Inv. Real Estate Trust, No. CV F 08-0872 LJO SMS, 2010 WL 3133195, at *18 (E.D. Cal. Aug. 9, 2010).

(261) 42 U.S.C. [section] 9607(a)(3) (2006) (rendering liable "any person who ... arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances").

(262) See CAL. CIV. CODE [section] 3479 (West 2012) (defining "nuisance").

(263) See Capogeannis v. Super. Court., 15 Cal. Rptr. 2d 796, 799 (Cal. Ct. App. 1993) (defining trespass as "an invasion of the interest in the exclusive possession of land") (citations and internal quotation marks omitted); Martin Marietta Corp. v. Ins. Co. of N. Am., 47 Cal. Rptr. 2d 670, 681 (Cal. Ct. App. 1996) (concluding that "unauthorized entry" is the essence of a cause of action for trespass). Under California law, wrongful "invasion by pollutants" may also constitute trespass. Martin Marietta Corp., 47 Cal. Rptr. 2d at 682.

(264) Team Enterprises, LLC., 2010 WL 3133195, at *18.

(265) See 42 U.S.C. [section] 9607(a) (2006). "Covered persons" includes persons or entities who "arrange[] for the disposal or treatment" of hazardons substances. Id [section] 9607(a)(3).

(266) See id [section] 9613(f) ("Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) ... during or following any civil action under section 9606 ... [or] 9607 of [title 42].").

(267) See Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1879 (2009) (finding that the ordinary meaning of the word "arrange" implies purposeful action, and individual must take intentional steps towards the disposal of hazardous substances to be subject to arranger liability).

(268) Id at 1878-79. See Freeman v. Glaxo Wellcome, Inc., 189 F.3d 160, 164 (2d Cir. 1999); F1. Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1318-19 (11th Cir. 1990) (noting that the "useful product" defense allows sellers of hazardous products to avoid arranger liability by showing that the product was sold for a useful purpose, rather than an attempt to avoid liability for hazardous waste).

(269) This burden of proof rests with the plaintiffs. Team Enterprises, LLC. v. W. Inv. Real Estate Trust (Team), 647 F.3d 901, 909 (9th Cir. 2011).

(270) At worst, the court said, the design indicated that Street was "indifferent to the possibility that Team would pour the remaining PCE down the drain." Id.

(271) Burlington N. & Santa Fe Ry. Co., 129 S. Ct. at 1875, 1883-84.

(272) The alleged dumping by Street occurred at a different Team dry-cleaning store located in McHenry, California. Team, 647 F.3d at 911.

(273) See CAL. CIV. CODE [section] 3479 (West 2012).

(274) See Capogeannis v. Super. Court., 15 Cal. Rptr. 2d 796, 799 (Cal. Ct. App. 1993).

(275) Martin Marietta Corp. v. Ins. Co. of N. Am., 47 Cal. Rptr. 2d 670, 682 (Cal. Ct. App. 1995).

(276) Id. at 681.

(277) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [section] 9607(a)(3) (2006).

(278) See Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066, 1082 (9th Cir. 2006).

(279) Defendants included United States Fish and Wildlife Service (FWS); Rowan Gould, FWS Acting Director, Daniel G.. Shillito, Pacific Southwest Region Solicitor; and Carolyn Lown, Pacific Southwest Region Assistant Solicitor.

(280) 18 U.S.C. [section][section] 983, 985; 28 U.S.C. [section][section] 2466-2467 (2006).

(281) U.S. CONST. amend. VIII.

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

(283) Plaintiff Miguel Blasquez hunted his leopard in Zambia in 2007, and Plaintiff Colin Crook hunted his leopard in Namibia in 2007. Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1206-07 (N.D. Cal. 2009).

(284) See Endangered Species Act of 1973 (ESA), 16 U.S.C. [section] 1538(a)(1)(A), (c) (2006) (prohibiting importation of endangered species into or out of the United States without a permit, with certain exceptions). Importation of the skulls and skins was unlawful under the ESA, 16 U.S.C. [section][section] 1531-1544 (2006), because the export permits were deficient under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243, which has been implemented through the ESA. Conservation Force, 677 F. Supp. 2d at 1207.

(285) FED. R. CIV. P. 12(b)(1).

(286) Id at 12(b)(6).

(287) 16 U.S.C. [section][section] 1531-1544 (2006).

(288) Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (codified at 16 U.S.C. [section] 1538(a)(1)(A), (c) (2006)).

(289) 50 C.F.R. [section][section] 23.1, 23.4 (2007) (imposing trade restrictions on certain species and a system of permits and certificates designed to protect them from commercial exploitation).

(290) 50 C.F.R. [section][section] 12.23, 23.13 (2007).

(291) Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. [section] 983(a) (2006).

(292) 50 C.F.R. [section][section] 12.23(b), 12.24 (2007).

(293) Malladi Drugs & Pharm., Ltd. v. Tandy, 552 F.3d 885, 890 (D.C. Cir. 2009).

(294) See 50 C.F.R. [section] 12.24(a) (2011) (expressly providing that the remedies are exclusive); Malladi Drugs & Pharm., 552 F.3d at 889 (holding that the remedies are exclusive); In re U.S. Currency, $844,520.00 (Cole v. United States), 136 F.3d 581, 582 (8th Cir. 1998) (per curiam) (holding that the remedies are exclusive).

(295) Notice was required to be sent to the plaintiffs 60 days after the date of seizure. See Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011); 18 U.S.C. [section] 983(a)(1)(A)(i) (2006) (requiring notice not more than 60 days after seizure unless otherwise allowed).

(296) Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006).

(297) Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment and Removing the Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 72 Fed. Reg. 14,866 (Mar. 29, 2007) [hereinafter Final Rule], (codified at 50 C.F.R. pt. 17).

(298) Greater Yellowstone Coal. v. Servheen, 672 F. Supp. 2d 1105, 1126-27 (D. Mont. 2009).

(299) Intervenors included the State of Montana; Montana Department of Fish, Wildlife, and Parks; State of Wyoming; Safari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; and Wyoming Wildlife Federation.

(300) See Final Rule, 72 Fed. Reg. at 14,866.

(301) 16 c.s.c. [section] 1533(a)(1)(A)-(E) (2006).

(302) Suever v. Connell, 579 F.3d 1047, 1055 (9th Cir. 2009).

(303) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-709, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006); see also Native Ecosystems Council v. Dombeck, 304 F.3d 886, 901 (9th Cir. 2002).

(304) 5 U.S.C. [section] 706(2)(A) (2006).

(305) Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1025 (9th Cir. 2011).

(306) Id. at 1,026 (quoting Final Rule, 72 Fed. Reg. 14,866, 14,932 (Mar. 29, 2007) (codified at 50 C.F.R. pt. 17).

(307) See Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 852 (9th Cir. 2003) (citing Steenholdt v. Fed. Aviation Admin., 314 F.3d 633, 639 (D.C. Cir. 2003)).

(308) Greater Yellowstone COM., 665 F.3d at 1031-32.

(309) See Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (clarifying that regulatory mechanisms mean "current, enforceable measures").

(310) Greater Yellowstone Coal., 665 F.3d at 1035.

(311) Id. at 1034.

(312) Rock Creek Alliance, Cabinet Resource Group, Earthworks, Alliance for the Wild Rockies, Natural Resources Defense Counsel, Trout Unlimited, Idaho Council of Trout Unlimited, Pacific Rivers Council, and Great Old Broads for Wilderness.

(313) Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006).

(314) Id. [section] 1536(a)(2); Interagency Cooperation-Endangered Species Act of 1973, As Amended, 50 C.F.R. [section] 402.01 (2011) (implementing the ESA for critical habitat).

(315) 16 U.S.C. [section] 1536(a)(2) (2006); 50 C.F.R. [section] 402.01 (2011) (requiring that any federal action is not likely to jeopardize the continued existence of any listed species).

(316) Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 663 F.3d 439, 442 (9th Cir. 2011). Bull trout and grizzly bears are both listed as threatened species under the ESA. 50 C.F.R. [section] 17.11 (2011).

(317) See 16 U.S.C. [section] 1536(a)(1) (2006) (mandating agencies to consult with FWS before approving projects); 50 C.F.R. [section] 402.01 (2011) (implementing the consultation requirement of the ESA).

(318) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3344, 4301, 5335, 5372, 7521 (2006).

(319) Id. [section] 706(2)(A); Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010).

(320) Critical habitat elements include "water temperature, substrate composition (specifically, increased sediment load), migratory corridors, channel stability, and cover." Rock Creek Alliance, 663 F.3d at 442.

(321) Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 935-36 (9th Cir. 2008).

(322) The court also noted that there was a clear commitment to implementing the mitigation plan because Revett had already purchased 273 acres. Rock Creek Alliance, 663 F.3d at 444.

(323) The Growers' initial lawsuit was consolidated with four similar cases brought by the San Luis & Delta-Mendota Water Authority, Westlands Water District, State Water Contractors, Metropolitan Water District of Southern California, Coalition for a Sustainable Delta, and Kern County Water Agency.

(324) In addition to FWS, Defendant-Appellees in the consolidated case included the United States Department of the Interior and its Secretary; the United States Bureau of Reclamation and its Commissioner, Acting Commissioner, and Mid-Pacific Regional Director; the California Department of Water Resources and its Director, the United States Department of Justice; the United States Environmental Protection Agency and its Administrator; the United States Department of Transportation and its Secretary; the United States Maritime Administration and its Acting Deputy Administrator, the United States Department of Homeland Security and its Secretary; the Federal Emergency Management Agency and its Administrator, and the United States Army Corps of Engineers and its Lieutenant General. Two environmental organizations, the Natural Resources Defense Council and the Bay Institute, joined as Defendant-Intervenor-Appellees.

(325) Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006).

(326) Id. [section] 1536(a).

(327) San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1168 (9th Cir. 2011) (internal quotation marks omitted).

(328) Id at 1168; see also 16 U.S.C. [section] 1536(b)(3)(A) (2006) (statign that the Secretary of the Interior "shall suggest those reasonable and prudent alternatives" which the action agency may engage in that will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat).

(329) 16 U.S.C. [section] 1538(a)(1)(C) (2006).

(330) U.S. CONST. art. I, [section] 8, cl. 3.

(331) San Luis & Delta-Mendota Water Auth., 638 F.3d at 1168.

(332) 504 U.S. 555 (1992).

(333) Id. at 560-61.

(334) San Luis & Delta-Mendota Water Auth., 638 F.3d at 1169-70 (internal quotation marks omitted).

(335) 520 U.S. 154 (1997).

(336) Id. at 169.

(337) San Luis dr Delta-Mendota Water Auth., 638 F.3d at 1171 (citing Tozzi v. U.S. Dep't of Health & Human Servs., 271 F.3d 301,308-09 (D.C. Cir. 2001)).

(338) See Reno v. Catholic Soc. Servs., 509 U.S. 43, 57-58 (1993); Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc).

(339) 387 U.S. 136 (1967). In order to determine if a controversy is ripe for judicial resolution, the Court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 148-49.

(340) See Gonzalez v. Raich, 545 U.S. 1, 17 (2005).

(341) See, e.g., United States v. Lopez, 514 U.S. 549, 560 (1995).

(342) 545 U.S. at 22.

(343) Id at 17.

(344) San Luis & Delta-Mendota Water Auth., 638 F.3d 1163, 1175 (9th Cir. 2011) (citing Lopez, 514 U.S. at 561; United States v. Morrison, 529 U.S. 598, 610 (2000)).

(345) Bald and Golden Eagle Protection Act, 16 U.S.C. [section][section] 668--668d (2006).

(346) See United States v. Bramble, 103 F.3d 1475, 1482 (9th Cir. 1996).

(347) 477 F.3d 1250 (11th Cir. 2007).

(348) San Luis & Delta-Mendota WaterAuth., 638 F.3d at 1175.

(349) Ala.-Tombigbee Rivers Coal., 477 F.3d at 1273 (quoting Lopez, 514 U.S. at 561).

(350) See Gonzalez v. Raich, 545 U.S. 1, 22-24 (2005) (discussing how the intrastate manufacture and possession of controlled substances is within federal jurisdiction because Congress specified its intent to impose a comprehensive regulatory scheme).

(351) San Luis & Delta-Mendota Water Auth., 638 F.3d at 1176.

(352) 21 U.S.C. [section][section] 801-971 (2006).

(353) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(354) 43 U.S.C. [section][section] 1701-1785; 16 U.S.C. [section] 1338a (2006).

(355) 43 C.F.R. [section][section] 8340-8342 (2011).

(356) Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1219 (9th Cir. 2011).

(357) 43 C.F.R. [section] 8341.2(a) (2011).

(358) Gardner, 638 F.3d at 1220 (citing Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996)).

(359) Administrative Procedure Act, 5 U.S.C. [section] 706 (2006).

(360) The court specifically reviewed BLM's authority under 43 U.S.C. [section] 1712(a) (2006) (requiring promulgation of land use plans, also referred to as resource management plans), [section] 1732(a) (requiring management of lands in accordance with principles of multiple use and sustainable yield), and [section][section] 1701(a)(8), 1732Co) (requiring contemporaneous enforce of relevant environmental laws governing use of public lands).

(361) Exec. Order No. 11,644 [section][section] 1,8, 3 C.F.R. 14244 (1971-1979).

(362) Exec. Order No. 11,989 at [section] 2, 3 C.F.R. 120-21 (1977) (amending Exec. Order 11,644).

(363) See 43 C.F.R. [section][section] 8340-8342 (2011).

(364) Sierra Club v. Clark, 756 F.2d 686, 690 (9th Cir. 1985).

(365) Administrative Procedure Act, 5 U.S.C. [section] 706(1) (2006).

(366) 542 U.S. 55 (2004).

(367) Id. at 64.

(368) Id. at 66-67, 71.

(369) Gardner, 638 F.3d 1217, 1222 (applying 43 U.S.C. [section] 1732(b) (2006)).

(370) See Federal Land Policy and Management Act of 1976, 43 U.S.C. [section] 1702(c) (defining "multiple use"); [section] 1702(h) (defining "sustained yield"); [section] 1732(a) (requiring the Secretary to manage public lands under principles of "multiple use" and "sustained yield").

(371) 43 C.F.R. [section] 8341.2(a) (2011).

(372) SUWA, 542 U.S. at 64-65 (2004).

(373) Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2006).

(374) Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), abrogated in part by Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008), as recognized in Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

(375) Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (citing Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric., 415 F.3d 1078, 1093 (9th Cir. 2005)).

(376) 43 C.F.R. [section] 8341.2(a) (2011).

(377) For example, BLM addressed public health safety concerns after a motor vehicle struck an ORV rider in 2007.

(378) In addition to NRDC, Plaintiffs included the Pacific Marine Conservation Council. Though the Makah Indian Tribe (Tribe), whose treaty fishing grounds comprise Pacific Ocean waters off the northern coast of Washington State--including those waters under United States fisheries management jurisdiction--is listed as Intervenor-Appellee, the Tribe's motion to intervene was denied in NRDCv. Gutierrez, No. C 01-0421 JL, 2007 WL 1518359, at [paragraph]10-16 (N.D. Ca[ May 22, 2007).

(379) In addition to NMFS, Defendants in the underlying litigation included the National Oceanic and Atmospheric Administration and Gary Locke in his position as United States Secretary of Commerce. W. Coast Seafood Processors Ass'n v. NRDC (West Coast Seafood), 643 F.3d 701, 701 (9th Cir. 2011).

(380) WCSPA participated as Applicant-in-intervention-Appellant. Id

(381) 16 U.S.C. [section][section] 1801-1884 (2006).

(382) Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir. 1993) (quoting Nat'l Envtl. Def. Council v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988))).

(383) Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc).

(384) Feldman v. Bomar, 518 F.3d 637, 644 (9th Cir. 2008).

(385) Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007) (quoting Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509-10 (9th Cir. 1994)).

(386) S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514-16 (1911) (holding that an order that expires by its terms after two years evades review).

(387) Alaska Ctr. for the Env't v. U.S. Forest Serv., 189 F.3d 851,855-56 (9th Cir. 1999) (holding that a permit that expires in two years evades review); see also Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30 (9th Cir. 1992) (holding that fishing quota specifications that expire in one year evade review).

(388) U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 398 (1980) ("Since the litigant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue." (emphasis added)).

(389) The Montana Wilderness Association, Greater Yellowstone Coalition, and the Wilderness Society.

390 The United States Forest Service and Mary Erickson in her official capacity as the Supervisor of the Gallatin National Forest.

(391) Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243.

(392) 5 U.S.C. [section][section] 501-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(393) [section] 3(a), 91 Stat. at 1244 (1977).

(394) See Mont. Wilderness Ass'n v. McAllister (Montana I), 658 F. Supp. 2d 1249, 1252 (D. Mont. 2009).

(395) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(396) McAllister, 658 F. Supp. 2d at 1266.

(397) Mont. Wilderness Ass'n v. McAllister (Montana II), 666 F.3d 549, 551 (9th Cir. 2011).

(398) FED. R. CIr. P. 24(a)(2), (b).

(399) Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 814 (9th Cir. 2001) (asserting that the denial of a motion to intervene is a final appealable order).

(400) Id. at 817.

(401) League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1307-08 (9th Cir. 1997).

(402) United States v. City of Los Angeles, 288 F.3d 391,398, 402 (9th Cir. 2002).

(403) Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006).

(404) Id.

(405) Even so, the Ninth Circuit analyzed the first three requirements and found that Appellants had met them.

(406) Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).

(407) Id.

(408) League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997) (internal quotations and citation omitted).

(409) Arakaki, 324 F.3d at 1086.

(410) MWA also included the Greater Yellowstone Coalition and The Wilderness Society, Inc. Mont. Wilderness Ass'n v. McAllister 666 F.3d 549, 549 (9th Cir. 2011).

(411) Pub. L. No. 95-150, 91 Stat. 1243 (1977).

(412) Citizens also included Kenneth Zahn, Big Sky Snowriders, and Gallatin Valley Snowmobile Association. Montana 1I, 666 F.3d at 549.

(413) 16 U.S.C. [section][section] 1131-1136 (2006 & Supp. II 2008), amended by Pub. L. No. 111-11, 123 Stat. 991 (2009).

(414) See id. [section 1131(a). Wilderness is defined as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." Id. [section] 1131(c).

(415) [section] 2(a), 91 Stat. at 1243-44 (1977). Congress passed the Study Act in response to USFS's failure to include specific study areas in Montana despite its charge to select such wilderness areas. Montana II, 666 F.3d at 552.

(416) [section] 3(a), 91 Stat. at 1244 (1977).

(417) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(418) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(419) Montana I, 658 F. Supp. 2d at 1256.

(420) See Wilderness Act, 16U.S.C. [section] 1133(b)(2006).

(421) Montana II,, 666 F.3d 549, 555 (9th Cir. 2011).

(422) 16 U.S.C. [section] 1131(c) (2006).

(423) Montana II, 666 F.3d at 556 (emphasis removed).

(424) The court examined a variety of dictionary definitions for "solitude" and "opportunity" to reach its conclusion. Id.

(425) 668 F.3d 1037, 1047 (9th Cir. 2011).

(426) Alaska Dep't of Envtl. Conservation v. U.S. Envtl. Prot. Agency, 540 U.S. 461, 488 (2004) (quoting Wash. State Dep't of Social & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371,385 (2003)) (internal quotation marks omitted).

(427) 16 U.S.C. [section] 1131(c)(2) (2006) (requiring that the area's wilderness character preserve "opportunities for solitude or a primitive and unconfined type of recreation").

(428) Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, [section] 2(b), 91 Stat. 1243 (1977) (mandating that the area's wilderness character be preserved in accordance with the Wilderness Act).

(429) The district court found the only way to satisfy the "arbitrary and capricious standard of review [was] to substantially reduce" the area for vehicle use or reduce access for motorized and mechanized use. Montana I, 658 F. Supp. 2d 1249, 1256 (D. Mont. 2009).

(430) 40 C.F.R. [section] 1502.22(b) (2011) (providing that if relevant information cannot be obtained, the environmental impact statement must include "(1) [a] statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community").

(431) Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, 91 Stat. 1243.

(432) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(433) Russell Country Sportsmen v. U.S. Forest Serv., No. CV 08-64-GF-SEH, 2010 WL 889870 at *4 (D. Mont. Mar. 10, 2010).

(434) WSAs are federal lands designated by Congress as areas to be studied for possible inclusion in the National Wilderness Preservation System. Wilderness Act, 16 U.S.C. [section] 1131(a) (2006). WSAs must be managed to maintain their wilderness character, which USFS has determined requires emphasizing non-motorized recreation. Russell Country Sportsmen v. U.S. Forest Sew., 668 F.3d 1037, 1040 (9th Cir. 2011).

(435) See Russell Country Sportsmen, 668 F.3d at 1040 (stating that the 300-foot turnaround rule provided access to dispersed campsites by motorized vehicle if campsites were within 300 feet of a road or trail).

(436) Id. at 1041 (quoting Montana Wilderness Study Act of 1977 [section] 3(a), 91 Stat. at 1244).

(437) See H.R. REP. No. 95-620, at 4 (1977) ("The use of off-road vehicles, while generally prohibited in designated wilderness areas, is entirely appropriate in [WSAs].").

(438) See National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C) (2006) (requiring an EIS for any proposed federal action "significantly affecting the quality of the human environment"); 40 C.F.R. [section] 1502.9(c)(1)(i) (2011) (requiring a supplemental EIS if "the agency makes substantial changes in the proposed action that are relevant to environmental concerns").

(439) Russell Country Sportsmen, 668 F.3d at 1041 (citing LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001)). Because neither the Study Act nor NEPA contain judicial review provisions, the Ninth Circuit applied the Administrative Procedure Act's standard for reviewing agency actions. Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2006) (providing agency actions must be set aside if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").

(440) Montana Wilderness Study Act of 1977, Pub. L. No. 95-150, [section] 3(a), 91 Stat. 1244.

(441) RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1160 (2d ed. 1987); AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1058 (5th ed. 2011); OXFORD ENGLISH DICTIONARY VOL. IX, at 223 (2d ed. 1989).

(442) WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1362 (2002).

(443) Wilderness Act, 16 U.S.C. [section][section] 1131-36 (2006 & supp. H 2008) amended by Pub. L. No. 11111). The Wilderness Act defines wilderness as an undeveloped piece of land that retains its "primeval character and influence," and which is "protected and managed so as to preserve its natural conditions." Id. [section] 1131(c).

(444) Russell Country Sportsmen, 668 F.3d at 1043.

(445) The court noted that the forest must be managed according to the multiple-use doctrine articulated in the National Forest Management Act of 1976. See 16 U.S.C. [section][section] 472a, 521b, 1600, 1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

(446) Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1292 (1st Cir. 1996).

(447) In re Operation of the Mo. River Sys. Litig., 516 F.3d 688, 693 (8th Cir. 2008).

(448) N. M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 705 n.25 (10th Cir. 2009).

(449) See Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026 (Mar. 23, 1981).

(450) 40 C.F.R. [section] 1502.9(c)(1)(i) (2011).

(451) 46 Fed. Reg. at 18,035.

(452) The district court computed the total mileage by adding the total miles of each type of motorized recreation authorized per mile of trail (e.g., passenger vehicles, 4x4's, all-terrain vehicles, motorcycles). See Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1046 (9th Cir. 2011). The Ninth Circuit found that the district court double-counted the mileage totals, such as counting a route twice that is open for both motorcycle and ATV use, which resulted in an exaggerated total. Id.

(453) Plaintiff-Appellant groups include the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club, and the Wilderness Society.

(454) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321--4347 (2006).

(455) National Forest Management Act of 1976, 16 U.S.C. [section] [section] 472a, 521b, 1600, 1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93378, 88 Stat. 476 (1974)).

(456) See Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1161-62 (9th Cir. 2011), for a complete listing of Defendants--Appellees and Defendants--Intervenors--Appellees.

(457) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006) (setting aside agency decisions only when arbitrary or capricious).

(458) Although Judge Reinhardt's narrow holding controls, given the fragmented opinion, the decision does not serve as binding precedent in regards to the NFMA claim. When the court is fragmented, the narrowest opinion is taken as the opinion of the court. See Hayes v. Ayers, 632 F.3d 500, 519-20 (9th Cir. 2011).

(459) 577 F.3d 1015, 1024-26 (9th Cir. 2009) (Noonan, J., concurring) (stating that Sierra Forest was entitled to assert an interest in environmental concerns with individual members, and that USFS is financially biased when it awards contracts for the sale of timber under the project).

(460) The United States Supreme Court has determined that plaintiffs can satisfy ripeness in NEPA claims considering such claims are procedural in nature, rather than substantive. See, e.g., Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558 (1978).

(461) Adaptive monitoring is defined as a system under which Forest Service continuously assesses the effects of management practices on sensitive species and adjusts as needed.

(462) Effects include ecological, aesthetic, historic, cultural, economic, social, or health effects. 40 C.F.R. [section] 1508.8 (2011). Cumulative effects result from past or present actions with reasonably foreseeable impacts. Id. [section] 1508.7. Direct effects result from actions occurring at the same time and place. Id. [section] 1508.8.

(463) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C), (E) (2006). Agencies may also be required to include a "full and fair discussion of significant environmental impacts" and information regarding alternatives to minimize impacts. 40 C.F.R. [section] 1502.1 (1979).

(464) Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir. 2008) (quoting Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996)), abrogated in part by Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008), as recognized in Am. Trucking Ass'ns v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009).

(465) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

(466) Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).

(467) Summers v. Earth Island Inst., 555 U.S. 488, 496-97 (2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).

(468) 555 U.S. at 496.

(469) 523 U.S. 726 (1998).

(470) Id. at 737 (acknowledging that a person may have standing when "the [NEPA violation] takes place," even if the agency has not yet made site-specific implementation decisions).

(471) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

(472) N. Alaska Envtl. Ctr., v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006); see also National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C)(iv) (2006) (requiring analysis of "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long term productivity"); Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134 (9th Cir. 2007) ("[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided." (citations omitted)).

(473) See Native Ecosystems Council v. USFS, 428 F.3d 1233, 1251 (9th Cir. 2005).

(474) See Nev. Land Action Ass'n v. USFS, 8 F.3d 713, 718 (9th Cir. 1993).

(475) Methow Valley Citizens Council, 490 U.S. at 350 n.13 (quoting 40 C.F.R. [section] 1502.9 (1987)); see also Lands Council v. McNair, 537 F.3d 981, 1001 (9th Cir. 2008) ("[T]he Forest Service must acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist."); 40 C.F.R. [section] 1503.4(a) (2012) ("An agency preparing a final environmental impact statement shall assess and consider comments both individually and collectively, and shall respond ... in the final statement.").

(476) Lands Council, 537 F.3d at 1001.

(477) League of Wilderness Defenders-Blue Mtns. Biodiversity Project v. USFS, 549 F.3d 1211, 1216 (9th Cir. 2008) (describing the cumulative impacts analysis as encompassing any and all "impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions" (quoting 40 C.F.R. [section] 1508.7 (2008))).

(478) eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (outlining the plaintiffs burden of showing: 1) an irreparable injury, 2) that legal remedies are inadequate compensation for that injury, 3) that an equitable remedy is warranted based on a balance of hardships between the parties, and 4) that a permanent injunction would not be a disservice to the public interest); see also Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2757 (2010).

(479) Sierra Forest Legacy v. Rey, 670 F. Supp. 2d 1106, 1110 (E.D. Cal. 2009).

(480) Administrative procedure Act, 5 U.S.C. [section] 706(2)(D) (2006).

(481) See, e.g., Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 562-63 (9th Cir. 2006) (enjoining timber sales premised on a policy change that violated NEPA).

(482) Rey, 670 F. Supp. 2d at 1113-14.

(483) See Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081, 1096 (W.D. Wash. 1991) ("This is not the usual situation in which the court reviews an administrative decision and, in doing so, gives deference to agency expertise."), aff'd in relevant part by 952 F.2d 297 (9th Cir. 1991).

(484) Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1185-86 (9th Cir. 2011); see Lands Council v. McNair 537 F.3d 981, 1004-05 (9th Cir. 2008) (applying a balance of harms analysis without deference to agency views); see also Mass. v. EPA, 549 U.S. 497, 520 (2007) (noting that "special solicitude" is given to states concerning interests in health and welfare).

(485) Lands Council, 537 F.3d at 989; see also National Forest Management Act of 1976, 16 U.S.C. [section] 1604(i) (2006).

(486) 153 F.3d 1059, 1070 (9th Cir. 1998) (holding that NFMA does not provide USFS with retroactive amending authority).

(487) United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc).

(488) See, e.g., Immigration and Naturalization Serv. v. St. Cyr, 533 U.S. 289, 316-17 (2001); Landgraf v. USI Film Prods., 511 U.S. 244, 272-73 (1994).

(489) See Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988).

(490) Id. at 1244-45 (citing Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)).

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

(492) 577 F.3d 1015, 1024-26 (9th Cir. 2009) (Noonan, J., concurring).

(493) Plaintiffs included the non-profit organizations In Defense of Animals and the Dreamcatcher Wild Horse and Burro Sanctuary, as well as individuals Barbara Clarke, Chad Hanson, and Linda Hay.

(494) The district court also denied an emergency motion for injunctive relief, but this appeal only considered the preliminary injunction.

(495) Defendants included the United States Department of the Interior, the Bureau of Land Management (BLM), Secretary of the Interior Ken Salazar, BLM Director Robert Abbey, and BLM Field Manager Ken Collum.

(496) Wild Free-Roaming Horses and Burros Act, 16 U.S.C. [section] [section] 1331-1340 (2006).

(497) National Environmental Policy Act of 1969, 42 U.S.C. [section] [section] 4321-4347 (2006) (noting that an environmental impact statement may be required prior to any action being implemented).

(498) The proposed roundup would employ roping from horseback and a helicopter drive method, where low-flying helicopters steer the animals into capture sites. The gather would proceed at a slow pace, minimize risks associated with extreme temperature conditions, and provide the horses with electrolytes to combat dehydration. Once captured, the horses would be transported to temporary holding facilities and segregated: younger animals to be removed as excess; sick or disabled horses to be euthanized; and horses selected for release to be classified according to traits like sex and body condition class, color, size, and disposition. Excess animals would be transferred to spacious, privately owned, BLM-managed holding facilities in the Midwest to await adoption. In Def. of Animals v. U.S. Dep't of the Interior, 737 F. Supp. 2d 1125, 1131 (E.D. Cal. 2010).

(499) Am. Horse Prot. Ass'n v. Watt, 679 F.2d 150, 151 (9th Cir. 1982).

(500) Animal Legal Def. Fund v. Shalala, 53 F.3d 363, 366 (D.C. Cir. 1995).

(501) Id.

(502) In Def. of Animals, 737 F. Supp. 2d at 1129.

(503) See Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) ("[W]here the violation complained of may have caused continuing harm and where the court can still act to remedy such harm by limiting its future adverse effects, the parties clearly retain a legally cognizable interest.").

(504) Id. (internal quotation marks omitted).

(505) 28 U.S.C. [section][section] 1291, 1364, 1402, 2401, 2402, 2411, 2671-2680 (2006).

(506) A bellwether trial plan is one in which a random sample of cases from a large number of similar claims is selected to be a representative sample for efficient and uniform adjudication. The random sample of cases is submitted to a judge or jury for verdicts. The resulting verdicts are used as a basis for resolving the remaining cases. Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 577-78 (2008).

(507) See 28 U.S.C. [section] 2672 (2006) (granting power to federal agency heads to consider claims for money damages against the United States for injury, loss of property, or personal injury caused by negligent and wrongful acts of agency employees acting in the scope of their employment).

(508) Id. [section] 2401(b) (2006).

(509) IDAHO CODEANN. [section] 52-111 (2009).

(510) Atwood v. Fort Peck Tribal Ct. Assiniboine, 513 F.3d 943, 946 (9th Cir. 2008).

(511) 28 U.S.C. [section] 2680(a) (2006).

(512) Id [section] 2401(b).

(513) Id.

(514) Marley v. United States, 567 F.3d 1030, 1038 (9th Cir. 2009).

(515) See Raddatz v. United States, 750 F.2d 791, 797 (9th Cir. 1984) (mentioning that failure to send by certified mail "would raise serious doubts as to the letter's effectiveness"); 28 U.S.C. [section] 2401(b) (2006) ("A tort claim against the United States shall be forever barred ... unless action is begun within six months after the date of mailing, by certified or registered marl, of notice of final denial of the claim by the agency to which it was presented"). (516) 39 C.F.R. [section] 111.1 (2011).

(517) For an updated version of the DMM, which is updated at least once per year, see U.S. POSTAL SERV., MAILING STANDARDS OF THE UNITED STATES POSTAL SERVICE, DOMESTIC MAre MANUAL 734-35 (2012), http://pe.usps.com/cpim/ftp/manuals/dmm300/full/mallingStandards.pdf. Prior versions of the DMM from 2005 onward are available at: http://pe.usps.com/archive.asp (last visited July 11, 2012).

(518) Id. at 735.

(519) Id. at 733.

(520) Id. at 735.

(521) Federal Tort Claims Act, 28 U.S.C. [section] [section] 1291, 1346, 1402, 2401-2402, 2411, 2671-2680 (2006) (waiving the government's sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment).

(522) Id. [section] 2680(a) (providing agencies with immunity from suits for claims based upon an agency's exercise of authorized discretion).

(523) The National Priorities List identifies facilities or hazardous substances most in need of remedial action and provides information relating to their cleanup. Only those sites on the NPL are eligible for federal funding to assist in remediations. See Mark Latham, Environmental Liabilities and the Federal Securities Laws: A Proposal for Improved Disclosure of Climate Change-Related Risks, 39 ENVTL. L. 647, 688 (2009).

(524) U.S. DEP'T OF DEF., U.S. DEF'T OF THE NAVY & STATE OF CALIFORNIA, CAMP PENDLETON MARINE CORPS BASE FEDERAL FACILITY AGREEMENT (1990), available at http://www.marines. mil/unit/basecamppendleton/ Pages/BaseStaffandAgencies/Environmental/IR/PDFs/CPEN_FFA.pdf

(525) NAVAL FACILITIES ENG'G COMMAND, U.8. NAVY, NAVFACINST 5100.11 J 1, SAFETY AND HEALTH PROGRAM MANUAL (2000) [hereinafter PROGRAM MANUAL], available at https://portal.navfac.navy.mil/portal/page/ portal/navfac/navfac_ww_pp/navfac_hq_pp/navfac_sf_pp/ navfac_sf_resource/5100_11j.pdf.

(526) Id [paragraph] 0407.b ("Each [Naval FEC] activity shaft ensure that plans are reviewed and accepted prior to issuing the Notice to Proceed.") (emphasis added); id [paragraph] 0407.c ("All [health and safety plans] shall be reviewed prior to initiating site work by a competent person.") (emphasis added).

(527) Thallium is designated as a "toxic pollutant." See Federal Water Pollution Control Act (CWA), 33 U.S.C. [section] 1317(a) (2006); Publication of Toxic Pollution List, 43 Fed. Reg. 4,108, 4, 109 (Jan. 31, 1978).

(528) Myers ex rel. L.M. v. United States, 652 F.3d 1021, 1026 (9th Cir. 2011).

(529) PROGRAM MANUAL, Supra note 525, at [paragraph] 0407.c (requiring the Navy to approve the HASP before work begins).

(530) U.S. ENVTL. PROT. AGENCY, NATIONAL PRIMARY DRINKING WATER REGULATIONS, CONSUMER FACTSHEET ON: THALLIUM (2012), available at http://www.epa.gov/safewater/pdfs/factsheets/ioc/ thallium.pdf.

(531) Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008) (reviewing de novo dismissals for lack of subject matter jurisdiction in FTCA suits); Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (reviewing for clear error determinations of underlying facts).

(532) Terbush, 516 F.3d at 1129.

(533) 486 U.S. 531 (1988).

(534) Id. at 536-37.

(535) See PROGRAM MANUAL, supra note 525, at [paragraph] 0407.c ("All HASPs shall be reviewed prior to initializing site work by a competent person.") (emphasis added).

(536) Myers, 652 F.3d 1021, 1028 (9th Cir. 2011) (quoting Terbush, 516 F.3d at 1129).

(537) 509 F.3d 1028 (9th Cir. 2007).

(538) Id. at 1033.

(539) The FFA provides that the Navy's QAO "will ensure that all work is performed in accordance with approved work plans, sampling plans and QAPPS" and "shall maintain for inspection a log of quality assurance field activities and provide a copy to the Parties upon request." Myers, 652 F.3d at 1030-31 (quoting CAMP PENDLETON MARINE CORPS BASE FEDERAL FACILITY AGREEMENT, supra note 424, at [paragraph] 20.1).

(540) Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

(541) Myers, 652 F.3d at 1032 (internal quotation marks omitted) (citing Terbush, 652 F.3d at 1133).

(542) 241 F.3d 1208 (9th Cir. 2001) (involving the Bureau of Indian Affairs' failure to adequately supervise timbering operations on Indian land as required by the Occupational Safety and Health Act and the Bureau's own regulations).

(543) Myers, 652 F.3d at 1033 (noting that a failure to effectuate policy choices already made is not protected under the discretionary function exception and rejecting a "limited resources" excuse for failing to follow professional standards).

(544) Federal Tort Claims Act, 28 U.S.C. [section] 1346(b)(1) (2006).

(545) 63 F.3d 870 (9th Cir. 1995).

(546) Id. at 872 (noting that the peculiar risk doctrine is an exception to the general rule that limits tort liability of an independent contractor). The government will be directly liable when it "fails to ensure that an independent contractor takes adequate safety precautions and the work to be performed involves special dangers." Myers, 652 F.3d at 1034 (citations omitted) (quoting Gardner v. United States, 780 F.2d 835, 838 (9th Cir. 1968)).

(547) 540 F.3d 1109 (9th Cir. 2008).

(548) The court determined if reassignment was necessary by applying the Mendez factors:

"(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously[ ] expressed views or findings determined to be erroneous based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness."

Id. at 1133 (quoting United States v. Sears, Roebuck, & Co., Inc., 785 F.2d 777, 779 (9th Cir. 1986) (per curiam) (quotation marks omitted).

(549) Myers, 652 F.3d 1038 (Rawlinson, J., concurring in part and dissenting in part).

(550) The Achuar are an indigenous people who have historically resided along rivers in the rainforests of northern Peru and depend on the rivers' waters for survival. Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1222-23 (9th Cir. 2011).

(551) 28 U.S.C. [section] 1332(d)(2) (2006).

(552) CAL. Bus. & PROF. CODE [section] 17200 (West 2008) (defining unfair competition as "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by ... the Business and Professions Code").

(553) 28 U.S.C. [section] 1291 (2006).

(554) Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). A lower court abuses its discretion by identifying an incorrect legal standard, or by applying the correct standard illogically, implausibly, or without a basis in the facts. United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc). Additionally, in the context of forum non conveniens, a "district court may abuse its discretion by relying on an erroneous view of the law, by relying on a clearly erroneous assessment of the evidence, or by striking an unreasonable balance of relevant factors." Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir. 2000) (citation omitted).

(555) Piper Aircraft, 454 U.S. at 249 n.15 ("[D]ismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law.').

(556) Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1181-82 (9th Cir. 2006) (noting that juries are capable of addressing a range of subjects, including foreign disputes).

(557) Dole Food Co., v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (quoting Ravelo Monegro, 211 F.3d at 514).

(558) See Piper Aircraft, 454 U.S. at 254 n.22; Leetsch v. Freedman, 260 F.3d 1100, 1103 (9th Cir. 2001) ("The foreign court's jurisdiction over the case and competency to decide the legal questions involved will also be considered. We make the determination of adequacy on a case by case basis, with the party moving for dismissal bearing the burden of proof." (citation omitted)).

(559) Tuazon, 433 F.3d at 1178 ("[A] forum will be inadequate only where the remedy provided is 'so clearly inadequate or unsatisfactory, that it is no remedy at all.'" (quoting Lockman Found. v Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991)))

(560) Tuazon, 433 F.3d at 1179.

(561) Piper Aircraft, 454 U.S. at 255.

(562) Id. at 255-56.

(563) Ravelo Monegro, 211 F.3d 509, 514 (9th Cir. 2000) (clarifying that "less deference is not the same thing as no deference") (citation omitted).

(564) 586 F.3d 689 (9th Cir. 2009).

(565) Id. at 694 (providing less deference to a co-plaintiff because the court found that the co plaintiff engaged in forum shopping).

(566) Bos. Telecomms. Grp., Inc. v. Wood, 588 F.3d 1201, 1206-07 (9th Cir. 2009) (quoting Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir. 2001)).

(567) Wood, 588 F.3d at 1208 (finding the convenience factor to be neutral where similar logistical considerations would apply in either forum).

(568) See Duha v. Agrium, Inc., 448 F.3d 867, 877 (6th Cir. 2006) (suggesting that the initial question is not whether the witnesses are beyond the reach of compulsory process, but whether it has been alleged or shown that witnesses would be unwilling to testify).

(569) See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1232 (gth Cir. 2011) (discussing the difficulty of enforcing a Peruvian judgment); see generally, In re B-E Holdings, Inc., 228 B.R. 414 (Bankr. E.D. Wis. 1999) (enforcing an unsatisfied Peruvian default judgment that was awarded in 1992).

(570) See U.S. Dep't of State, Bureau of Econ., Energy and Bus. Affairs, 2010 Investment Climate Statement-Peru, http://www.state.gov/e/eb/rls/othr/ics12010/138128.htm (last visited July 7, 2012).

(571) Stangvik v. Shiley Inc., 819 P.2d 14, 21 n.10 (Cal. 1991).

(572) See Wash. Mut. Bank v. Super. Ct. of Orange Cnty., 15 P.3d 1071, 1080-81 (Cal. 2001) (applying a three part choice of law test: 1) determine if the foreign law "materially differs" from California law; 2) determine each respective state's interest in the application of its law; and 3) select the law of the state whose interest would be "more impaired" if its law were not applied, with the initial burden placed on the proponent of foreign law).

(573) Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir. 2001).

(574) Carijano, 643 F.3d at 1234.

(575) Bank of Credit and Commerce Int'l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001).

(576) Carijano, 643 F.3d at 1235.

(577) Id. at 1237 (Rymer, J., concurring in part, dissenting in part) (citing Creative Tech., Ltd. v. Aztech Sys. Pte, Ltd., 61 F.3d 696, 699 (9th Cir. 1995)).

(578) Michelle Barnes, Patrick Conry, and Blaine Ackley brought the suit and the Port of Portland intervened as an interested party.

(579) FAA as well as the United States Department of Transportation, Ray Lahood, J. Randolph Babbitt, Donna Taylor, Carol Suomi, and Cayla Morgan were all named defendants.

(580) See Airport and Airway Improvement Act of 1982, 49 U.S.C. [section] 47106(c)(1)(A)(i) (2006) (requiring that an opportunity for public hearing be given to consider the economic, social, and environmental effects of the location and the location's consistency with the objectives of any planning that the community has carried out).

(581) 49 U.S.C [section][section] 47101-47175 (2006); Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1141-43 (9th Cir. 2011) (quoting 49 U.S.C. [section] 47106(c)(1)(A)(i) (2006)).

(582) A reliever airport is used to reduce the congestion at large commercial airports. Fed. Aviation Admin., Airport Cstegorles, http://www.faa.gov/airports/planning_capacity/ paasenger_allcargo_tats/categories/(last visited April 1, 2012).

(583) General aviation aircraft are all aircraft other than military and commercial airlines, such as training, sightseeing, personal flying, agricultural, business jets, and medical services. Janet Bednarek, General Aviantion-an Overview, http://www.nps.gov/nr/travel/aviation/modernav iation.htm (last visited April 1, 2012).

(584) As of 2007 HIO was operating at 9895, by 2010 the ASV was projected to be 112%, by 2015, 123%, and by 2025, 146% of capacity. Barnes, 655 F.3d at 1128-29.

(585) See FED. AVIATION ADMIN., DEP'T OF TRANSP., FAA ORDER 5090.3C, FIELD FORMULATION OF THE NATIONAL PLAN OF INTEGRATED AIRPORT SYSTEMS 15, 24 (2000), available at http://www.faa.gov/airports/resources/ publications/orders/media/planning_5090_3C.pdf.

(586) Barnes, 655 F.3d at 1129.

(587) 42 U.S.C. [section][section] 4321-4347 (2006).

(588) See Airport and Airway Improvement Act of 1982, 49 U.S.C. [section] 47106(c)(1)(A)(i) (2006).

(589) Administrative Procedure Act (APA), 5 U.S.C. [section] 706(2)(A) (2006). This standard of review requires the court to determine whether the agency took a "hard look" at the consequences of its action. Envtl. Prot Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006) (citation omitted).

(590) Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004) (noting that this notification gives the agency an opportunity to give meaningful consideration to the parties' views, and that parties failed to properly alert an agency when they did not identify rulemaking alternatives beyond those evaluated in the agency's EA).

(591) Id at 765. The "so obvious" standard has been interpreted to mean the agency has "independent knowledge" of the issue. 'Ilio'ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006).

(592) Plaintiff Ackley's letter noted that the additional runway would increase noise pollution, while decreasing his property value and general quality of life. The Ninth Circuit saw "no other way" to interpret the comment but that Ackley equated construction of a third runway with an increase in air traffic. Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1133 (9th Cir. 2011).

(593) Plaintiffs proposed high-speed raft and non-aviation alternatives. Id. at 1135.

(594) Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir. 2005) (citations omitted).

(595) See 40 C.F.R. [section] 1508.8(b) (2006) (explaining that indirect effects include growth-inducing effects).

(596) See Seattle Cmty. Council Fed'n v. FAA, 961 F2d 829, 835 (9th Cir. 1992); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 580 (9th Cir. 1998) (holding that a project implemented in order to deal with existing problems is insufficient to constitute a growth-inducing impact).

(597) Barnes, 655 F.3d at 1138.

(598) 40 C.F.R. [section] 1508.27 (2006). "Context" is the setting in which the agency action takes place and "intensity" refers to the degree to which the agency action affects the locale and context interests. Nat'l Parks & Conservation Ass'n v. Babbit, 241 F.3d 722, 731 (9th Cir. 2001).

(599) See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005) (explaining the "highly uncertain standard").

(600) SeeMass. v. U.S. Envtl. Prot. Agency, 549 U.S. 497, 534 (2007).

(601) The EA estimated that global aircraft emissions account for 3.5% of total greenhouse gas emissions, that aviation accounts for 3% of total emissions in the United States, that HIO represents less than 1% of aviation in the United States; as a result, existing and future greenhouse gas emissions at HIO will only account for 0.03% of greenhouse emissions. Barnes, 655 F.3d at 1140.

(602) Barnes v. City of Hillsboro, LUBA No. 2010-011, at 11. 6-28 (Or. Land Use Bd. App. June 30, 2010), available at http://www.oregon.gov/ LUBA/docs/Opinions/2010/06-10/10011.pdf.

(603) Airport and Airway Improvement Act of 1982, 49 U.S.C. [section] 47106(c)(1)(A)(i) (2006) (requiring that an opportunity for a public hearing be given "to consider the economic, social, and environmental effects of the location and the location's consistency with the objectives of any planning that the commtmity has carried out").

(604) FED. AVIATION ADMIN., DEP'T OF TRANSP., FAA ORDER 5050.4B, NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) IMPLEMENTING INSTRUCTIONS FOR AIRPORT ACTIONS [paragraph] 403.a (2006), available at http://www.faa.gov/airports/resources/publications/ orders/environmental-5050-4/media/505 0-4B_complete.pdf.

(605) 467 U.S. 837, 844 (1984) (stating that an agency's "legislative regulations" regarding statutes they administer "are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute").

(606) 323 U.S. 134, 140 (1944) (listing factors that give non-binding agency interpretations the "power to persuade, ff lacking power to control").

(607) Although Plaintiffs cited City of S. Pasadena v. Slater, 56 F. Supp. 2d 1106, 1132 (C.D. Cal. 1999), for the idea that the "open house" format of the meeting was insufficient to satisfy the public hearing requirement, the court clarified that Slater was not binding upon the Ninth Circuit, that it only addressed public hearing issues in dicta, and that the facts involved a very different hearing format than the instant case.

(608) Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1143 (9th Cir. 2011) (Ikuta, J., dissenting).

(609) See Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (gth Cir. 1998) (holding that a project implemented in order to deal with existing problems is insufficient to constitute a growth-inducing impact).

(610) Id at 580.

(611) Plaintiffs-Appellants included the Center for Environmental Law and Policy and Columbia Riverkeeper, as well as Vision for Our Future as Petitioner-Intervenor.

(612) Defendants-Appellees included the U.S. Bureau of Reclamation (BOR) and its Commissioner, Michael L. Connor, as well as the East Columbia Basin Irrigation District and the Washington Department of Ecology as Intervenor-Defendants-Appellees.

(613) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(614) Ctr. for Envtl. Law & Pol'y v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1003 (9th Cir. 2011).

(615) Act of Feb. 16, 2006, ch. 6, 2006 Wash. SeEs. Laws 27 (codified as amended at WASH. REV. CODE [section][section] 90.90.005-.900 (2010)).

(616) In 2004, BOR, the State of Washington Department of Ecology, and other agencies issued a memorandum of understanding (MOU) that set an 82,500 acre-feet per year diversion limit for municipal, industrial, and groundwater replacement uses, and a 50,000 acre-feet diversion limit for drought years. Ctr. for Envtl. Law & Pol'y 655 F.3d at 1003.

(617) WASH. REV. CODE [section] 90.90.060(3) (2010).

(618) The PEIS described major components, various projects, environmental effects to projects, and cumulative impacts of the Water Management Act's water management program. Ctr. for Envtl. Law & Pol'y;, 655 F.3d at 1004.

(619) The SEIS addresses alternatives to the drawdown of Lake Roosevelt, along with water drawing methods and cumulative impacts. Id.

(620) See National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C) (2006).

(621) Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir. 2008) (citation omitted) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).

(622) Blue Mountaius Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971))).

(623) Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1169 (9th Cir. 2011).

(624) Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008) (citing 40 C.F.R. [section] 1508.9(a)(1) (2007)).

(625) See 40 C.F.R. [section] 1502.5 (2011). The go-no go stage refers tO a stage prior to any irreversible and irretrievable commitment of resources. Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).

(626) 40 C.F.R. [section] 1508.9(b) (2011). The EA must include direct, indirect, and cumulative impacts. Id. [section] 1508.8(b).

(627) Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006) (citing 40 C.F.R. [section] 1508.9(a)(1)).

(628) See WASH. REV. CODE [section] 90.03.250 (2010).

(629) See id [section] 90.14.130.

(630) Cumulative effects are incremental impacts, resulting from present and reasonably foreseeable actions. Ctr. for Envtl. Law & Pol'y v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1007 (9th Cir., 2011).

(631) Id.

(632) See Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002) ("General statements about 'possible' effects and 'some risk' do not constitute a 'hard look' absent a justification regarding why more definitive information could not be provided." (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998))).

(633) An agency may characterize cumulative effects of past actions in the aggregate without enumerating every past affected project. See, e.g., League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1135-36 (9th Cir. 2010).

(634) Ctr. for Envt1. Law & Pol'y, 655 F.3d at 1009.

(635) The court found CELP failed to meet its burden to show a potential cumulative impact for the other projects. Id.

(636) SeeN. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 980 (9th Cir. 2006).

(637) Indirect effects are those "caused by the [agency] action [that] are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. [section] 1508.8(b) (2011). These effects may include growth inducing effects, or effects relating to changes in land use, population, and ecosystems. Id

(638) The Weber Siphons form two portions of a canal system near Interstate 90. The Siphons are to be expanded by 1,950 cubic feet per second. The drawdown of Lake Roosevelt will only account for 181 cubic feet per second of the increased capacity of the siphons.

(639) Native Ecosystems Council v. U.S. Forest Sew., 428 F.3d 1233, 1245 (9th Cir. 2005).

(640) Id. at 1246.

(641) Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517, 523-24 (9th Cir. 1994).

(642) Mark Fix; the City of Forsyth, Montana; Native Action, Inc.; and United Transportation Union General Committee of Adjustment.

(643) National Environmental Policy Act of 1969, 42 U.S.C. [section] [section] 4321-4347 (2006).

(644) Pub. L. No. 104, [section] 88 (1995) (codified at 49 U.S.C. [section] 701 (2006)).

(645) Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. [section] 10901 (2006).

(646) The Board's predecessor, the Interstate Commerce Commission, approved this rail line. The court noted that TRRC I was not at issue in this case and that the line had not yet been built.

(647) 42 U.S.C. [section] 4332(C) (2006).

(648) Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. [section][section] 10101, 10102, 10501, 10502, 10701-10709, 10721, 10722, 10741-10747, 10901-10907, 11101-11103, 11121-11124, 11141-11145, 11161-11164, 11301, 11321-11328, 11501, 11502, 11701-11707, 11901-11908, 1310113103, 13301-13304, 13501-13508, 13521, 13531, 13541, 13701-13713, 13901-13908, 14101-14104, 14121-14123, 14301-14303, 14501-14505, 14701-14709, 14901-14914, 15101-15103, 15301, 15302, 15501-15506, 15701, 15721-15723, 15901-15906, 16101-16106, 701-706, 721-727 (2006); 11 U.S.C. [section] 1162 (2006); 45 U.S.C. [section] 7971 (2006).

(649) The APA requires courts to "hold unlawful and set aside" any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2006). The court cited Lands Council v. MeNair for the propositions that that judicial review under this standard is "narrow," and that courts must give deference to scientific findings that an agency finds reliable. Lands Council v. McNair, 537 F.3d 981, 987-88, 994 (9th Cir. 2008) (en banc), overruled on other grounds by Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). The court reviewed the Board's licensing application decision under the standards set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45 (1984) (holding that courts must uphold an agency's reasonable interpretation of a statute administered by that agency, unless that interpretation is contrary to Congress's "unambiguously expressed intent").

(650) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(651) The court noted that a cumulative impact analysis must provide "a useful analysis of the cumulative impacts of past, present, and future projects." Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999)). A cumulative impact analysis also must include "some quantified or detailed information" about cumulative impacts, unless the agency can justify its failure to include such information. Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 868 (9th Cir. 2005). Finally, the court noted that NEPA permits agencies to aggregate cumulative effects. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Sew., 549 F.3d 1211, 1217 (9th Cir. 2008).

(652) BUREAU OF LAND MGMT., FINAL STATE WIDE OIL AND GAS ENVIRONMENTAL IMPACT STATEMENT (2003), available at http://www.blm.gov/mt/st/en/fo/miles_city_field_office/og_ eis.html (click on individual sections).

(653) The court relied on a Council on Environmental Quality (CEQ) guidance document directing agencies to consider environmental effects in the time frame of the "project-specific" analysis. COUNCIL ON ENVTL. QUALITY, CONSIDERING CUMULATIVE EFFECTS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT 16 (1997), available at http://energy.gov/sites/prod/files/nepapub/ nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf. In this case, the Board failed to explain why it relied on its default five-year analysis when BLM and the State of Montana projected a twenty-year increase in CBM development.

(654) Lands Council v. Powell, 395 F.3d 1019, 1031 (9th Cir. 2005) (holding that thirteen-year-old habitat surveys and six-year-old fish counts were "stale" data "too outdated" to be given significant weight).

(655) Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976).

(656) The court noted that closely interconnected proposals should generally be evaluated with a single EIS. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 998 (9th Cir. 2004). This interconneetedness is evaluated under the "independent utility" test, which allows separate EISs for projects that would have occurred without each other. Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1118 (9th Cir. 2000), abrogated by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).

(657) "Tiering" is the process of covering general matters in a broad EIS, and incorporating that broad analysis by reference into a narrower EIS, such as a site-specific statement. 40 C.F.R. [section] 1508.28 (2011).

(658) See Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. [section] 10901 (1980).

(659) 45 U.S.C. [section] 1018 (2006).

(660) 49 U.S.C. [section][section] 10901, 10903 (1980). The Board argued that this amended standard was lower than the previous standard, which only allowed the Board to approve new railroads when public convenience and necessity "required" or would "be enhanced" by a new railroad. The "permit" language originally only applied to Board-approved abandonment of railroads. Although the court agreed with NRPC that the Staggers Act merely "harmonized" the abandonment and construction language by making them identical, the court nevertheless agreed with the Board that the resulting language established a lower standard for construction than had existed previously.

(661) Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 552 (8th Cir. 2003).

(662) 49 U.S.C. [section] 10901 (2006).

(663) N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1096 (9th Cir. 2011) (citing 49 U.S.C. [section] 10327(c) (1994)).

(664) The court found support for this position amongst other circuit courts. Ry. Labor Execs. Ass'n v. Interstate Commerce Comm'n, 914 F.2d 276, 278 (D.C. Cir. 1990); Crounse Corp. v. Interstate Commerce Comm'n, 781 F.2d 1176, 1192-93 (6th Cir. 1986); and Mo.-Kan.-Tex. R.R. Co. v. United States, 632 F.2d 392, 411-12 (5th Cir. 1980).

(665) The Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso.

(666) The United States Forest Service and Joseph P. Stinger, the Acting Forest Supervisor for Coconino National Forest, were joined by intervenor, Arizona Snowbowl Resort LP.

(667) Laches is an equitable principle that limits a party's right to bring a claim when they have slept on their rights. Save the Peaks Coal. v. U.S. Forest Serv. (Save the Peaks), 669 F.3d 1025, 1031 (9th Cir. 2012).

(668) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(669) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(670) Save the Peaks, 669 F.3d at 1035.

(671) 479 F.3d 1024, 1048 (9th Cir. 2007), rev'd en bane on other grounds, 535 F.3d 1058 (9th Cir. 2008) (en banc). Save the Peaks' website even described Navajo Nation as their "prior court case." Save the Peaks, 669 F.3d at 1030.

(672) 479 F.3d at 1048 (alleging NEPA violations by USFS's failure to "consider adequately the risks posed by human ingestion of artificial snow made from treated sewage effluent").

(673) Save the Peaks Coal. v. U.S. Forest Serv., No. CV 09-8163-PCT-MHM, 2010 WL 4961417, at [paragraph] 25 (D. Ariz. Dec. 1, 2010).

(674) 28 U.S.C. [section] 1291 (2006) (providing appellate jurisdiction over all final decisions of federal district courts).

(675) See Internet Specialties W., Inc. v. Milon-DiGiorgio Enters., Inc., 559 F.3d 985, 991 (9th Cir. 2009) (reviewing application of the laches defense de novo); see also Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2005) (reviewing the grant of summary judgment de novo).

(676) Save the Peaks, 669 F.3d at 1031.

(677) Neighbors of Cuddy Mountain v. U.S. Forest Sew., 137 F.3d 1372, 1381 (9th Cir. 1988).

(678) Save the Peaks, 669 F.3d at 1028, 1032.

(679) Neighbors of Cuddy Mountain, 137 F.3d at 1382 (quoting Apache Survival Coal. v. United States, 21 F.3d 895, 912 (9th Cir. 1994)).

(680) The Ninth Circuit recognized the uniqueness of this case and the possibility of prejudice, but it declined to further investigate the existence of prejudice. Save the Peaks, 669 F.3d at 1035. Rather than answering that complex question, the Ninth Circuit addressed the district court's alternative finding that USFS had not violated NEPA or the APA. Id. at 1034-35. 681 Lands Council v. McNair,

(681) F.3d 1070, 1075 (9th Cir. 2010).

(682) Se. Alaska Conservation Council v. Feel Highway Admin., 649 F.3d 1050, 1056 (9th Cir. 2011).

(683) Save the Peaks, 669 F.3d at 1036.

(684) Although Plaintiffs argued that USFS based its decision on studies by the Arizona Department of Environmental Quality (ADEQ), the FEIS did not reference ADEQ's analysis. Id at 1037-38.

(685) Plaintiffs included Southeast Alaska Conservation Council, Skagway Marine Access Commission, Lynn Canal Conservation, Inc., Alaska Public Interest Research Group, Sierra Club, and Natural Resources Defense Council.

(686) Defendants included FHWA, United States Department of Transportation, United States Forest Service, United States Department of Agriculture, and individual federal officers.

(687) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(688) The "No Action" Alternative would continue the existing AMHS; Alternatives 2, 2A, 2B, and 2C would construct a new east Lynn Canal Highway and a new ferry terminal for the AMHS; Alternative 3 would build two new ferry terminals for the AMHS; and Alternatives 4A, 4B, 4C and 4D would construct new ferry lines to operate alongside the AMHS.

(689) ADOT selected Alternative 2B as the preferred plan in August 2005. ADOT had previously chosen and abandoned a different plan because it required constructing a highway in lands protected under section 4(f) of the Department of Transportation Act, 49 U.S.C. [section] 303 (2006).

(690) Environmental impacts would include loss of wetlands and terrestrial habitat as well as possible reduction of brown bear habitat and relocation of bald eagle nests. Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1054 (9th Cir. 2011).

(691) SEACC asserted that the Project also violated the National Forest Management Act of 1976, 16 U.S.C. [section][section] 472a, 521b, 1600, 1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)); the Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. [section][section] 668-668d (2006); and the Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006).

(692) See 40 C.F.R. [section] 1502.14(a) (2011) (requiring "rigorous" exploration and evaluation of "reasonable alternatives").

(693) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(694) Id. [section] 706(2)(A).

(695) Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

(696) Se. Alaska Conservation Council, 649 F.3d at 1050, 1056 (9th Cir. 2011) (citing 40 C.F.R. [section] 1502.14(a) (2010)).

(697) See, e.g., Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1038 (9th Cir. 2008); 'Ilio'ulaokalani Coal v. Rumsfeld, 464 F.3d 1083, 1095 (9th Cir. 2006).

(698) The overall estimated cost of Alternative 2B included the $88 million proposed in the EIS and another $34 million reflected in the ROD. The court also found that Alternative 2B would increase State costs and reduce services elsewhere, as money from other transportation projects would be used to pay for the Project. Se. Alaska Conservation Council, 649 F.3d at 1057.

(699) See 40 C.F.R. [section] 1502.14(b) (2011) (requiring discussion of reasonable alternatives in an EIS to "[d]evote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate the comparative merits").

(700) Animal Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988), amended by 867 F.2d 1244 (9th Cir. 1989).

(701) Headwaters, Inc. v. U.S. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990) ("[A]n agency's consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative.").

(702) Id at 1180 (quoting Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied,, 416 U.S. 961 (1974)).

(703) ALASKA SWAT. [section] 44.42.050(a) (2011) (detailing Alaska's comprehensive "[s]tate transportation plan").

(704) In addition to Tri-Valley CAREs, Plaintiffs included individuals Marylia Turner and Janis Kate Turner.

(705) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).

(706) In addition to DOE, Defendants included the National Nuclear Security Administration, an agency within DOE, and the Lawrence Livermore National Laboratory (LLNL), a research laboratory working on classified nuclear weapon design.

(707) Tri-Valley CAREs v. DOE, No. CV 03-3926-SBA, 2004 WL 2043034, at *21 (N.D. Cal. Sept. 10, 2004).

(708) Tri-Valley CAREs v. DOE (Tri-Valley CAREs 1), 203 F. App'x 105, 107 (9th Cir. 2006).

(709) 42 U.S.C. [section] 4332(2)(C) (2006); 40 C.F.R. [section] 1502.9(c)(1)(ii) (2011).

(710) N. Cheyenne Tribe v. Norton, 503 F.3d 836, 845 (9th Cir. 2007).

(711) Administrative Procedure Act, 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).

(712) Tri-Valley CAREs v. DOE (Tri- Valley CAREs II), 671 F.3d 1113, 1121 (9th Cir. 2012).

(713) San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n (Mothers for Peace II), 635 F.3d 1109, 1118-21 (9th Cir. 2011).

(714) Tri-Valley CAREs II, 671 F.3d at 1126.

(715) 40 C.F.R. [section] 1508.27(a) (2011).

(716) See Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976); Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001).

(717) Tri-Valley CAREs II, 671 F.3d at 1122.

(718) Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir. 2005).

(719) 449 F.3d 1016 (9th Cir. 2006).

(720) Id. at 1034 (citing U.S. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004)).

(721) Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding that arguments not raised in a party's opening brief are deemed waived).

(722) 40 C.F.R. [section] 1502.9(c)(1)(ii) (2011).

(723) The court cited Wisconsin v. Weinberger, 745 F.2d 412, 416-17 (7th Cir. 1984), for this proposition.

(724) N.D. CAL. CIV. R. 7-11(a) (requiring that any motion for administrative relief include a stipulation explaining why a stipulation is unavailable), available at http://www.cand.uscourts .gov/filelibrary/184/All-LocalRules-9-2011-CW.pdf.

(725) See Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996) (outlining the four narrowly drawn categories); see also Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1003 (D. Mont. 2005) (holding that extra-record material must have been available to the agency at the time it was making its challenged decision).
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Title Annotation:Case Summaries III. Miscellaneous A. Federal Tort Claims through C. National Environmental Policy Act, with footnotes, p. 869-909
Publication:Environmental Law
Date:Jun 22, 2012
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