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Case summaries.

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Clean Water Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regarding the citizen suit notice requirements of the CWA, (93) the Ninth Circuit considered both the statutory requirements of the CWA (94) and case law in determining that CARE's notice letter was adequate to inform the dairies of the claims against them, including those in the appendix of the complaint. First, the court explained that the CWA requires that "'[n]otice ... shall be given in such a manner as the Administrator shall prescribe by regulation.'" (95) EPA's regulations require that notice
   include sufficient information to permit the recipient to identify
   the specific standard, limitation, or order alleged to have been
   violated, the activity alleged to constitute a violation, the
   person or persons responsible for the alleged violation, the
   location of the alleged violation, the date or dates of such
   violation, and the full name, address, and telephone number of the
   person giving notice. (96)


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Oil Pollution Act

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

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

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

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

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

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

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

D. CERCLA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E. National Environmental Policy Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. NATURAL RESOURCES

A. Endangered Species Act

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

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

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

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

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

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

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

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

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

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

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

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

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

Before reaching the substantive merits of the case, the Ninth Circuit reviewed FWS's assertion that the environmental groups lacked standing and that the appeal was moot. The Ninth Circuit held that the groups had standing, because they fulfilled the Article III (311) requirements (312) and the representational standing requirements. (313) In particular, the court found that the groups' "desire to use, observe, and study" the plant and animal species was "undeniably a cognizable interest for the purposes of standing." (314) Judge Graber dissented, distinguishing a Ninth Circuit case, Portland Audubon Society v. Endangered Species Commission, (315) that automatically allowed standing for an agency's procedural violation when the party had participated in the process. In that case, the agency had not given fair consideration to the party's presentations. However, Judge Graber argued that in the current case the environmental groups were challenging only the timing of the agency's actions, not improper procedural error, and therefore had to prove every element of standing in their pleadings. The majority responded by noting that a failure "to comply with its governing statute is by definition a claim that 'things were done improperly.'" (316)

With regard to mootness, FWS argued it had completed all of the listing determinations before the appeal. The groups had asked the district court to compel a listing determination and to grant declaratory relief requiring FWS to issue initial listing determinations within twelve months. The court found that this case fell into the "capable of repetition, yet evading review" exception established by the Supreme Court. (317) The first element of that exception determines if "the duration of the challenged action is too short to allow full litigation before it ceases." (318) The court determined that this element had been fulfilled because the listing disputes were often too short to get judicial review and FWS often made its listing determinations after litigation began. The second element queries whether "there is a reasonable expectation that the plaintiffs will be subjected to [the same injury] again." (319) Because of the environmental groups' history of repeated litigation with FWS over the listing of species, the court found that they met the second element. Again, Judge Graber dissented, because it was not clear on the record or in the pleadings that the parties had repeatedly litigated the timing of FWS's review of listing petitions.

On the merits of the case, the Ninth Circuit frost reviewed the length of time that FWS had to make an initial, substantial information determination and then the final warranted/not warranted determination under the ESA. (320) The court read the initial determination as discretionary because it only required FWS to make the substantial information finding within 90 days "[t]o the maximum extent practicable." (321) However, the court determined that this discretion had to be limited by the nondiscretionary twelve months that FWS had to complete its final decision on the listing. (322) Otherwise, congressional intent would be frustrated because the twelve-month deadline would be rendered meaningless if the initial determination could extend indefinitely. Therefore the court reversed the district court decision that allowed FWS to complete the initial determination in its own discretion.

Next, the court reviewed whether the district court erred in compelling FWS to complete the final, warranted/not warranted determination on the species for which it had completed initial determinations. The court determined that FWS had not acted "in accordance with law" when it missed the twelve-month deadline. (323) Then the court forewent the usual balancing of equities in determining whether equitable relief was necessary. Instead it followed the rule that Congress intended to remove "the traditional discretion of courts in balancing the equities before awarding injunctive relief" (324) for an ESA violation. Thus, the Ninth Circuit affirmed that the district court was compelled to grant injunctive relief.

B. Fish and Wildlife

1. Conservation Force, Inc. v. Manning, 301 F.3d 985 (9th Cir. 2002), cert. denied sub nom. Golighltly v. Montoya, 123 S. Ct. 902 (2003).

Hunters and hunting guides residing in New Mexico challenged an Arizona regulation imposing a ten percent cap on nonresident hunting of bull elk and antlered deer as unconstitutional under the Commerce Clause. (325) The district court granted the state summary judgment, finding that the Commerce Clause did not apply because hunting was recreation and not an essential right guaranteed under the Privileges and Immunities Clause. (326) The New Mexican hunters and guides appealed and the Ninth Circuit reversed, holding that the district court applied the wrong test by applying the Privileges and Immunities Clause test. Declaring the dormant Commerce Clause the proper test, the Ninth Circuit found that it applied to the regulation and remanded the case for a finding of whether Arizona met its burden of proving that there were no less discriminatory options for conserving elk and deer and providing recreation for its citizens.

Arizona enjoys world renown for its bull elk and antlered deer populations due in great part to the state's conservation efforts. Based on perceived wishes of state hunters, the Arizona legislature passed a ten percent cap on nonresident hunting in 1991 to preserve greater hunting opportunities for residents. New Mexico hunters and guides challenged this regulation as a discriminatory burden on interstate commerce.

The Ninth Circuit found that the district court improperly applied the Privileges and Immunities Clause to a dormant Commerce Clause issue. The Ninth Circuit cited a United States Supreme Court case, Oregon Waste Systems, Inc. v. Department of Environmental Quality, (327) which held that under the dormant Commerce Clause the state could not create a regulation that "unjustifiably ... discriminate[s] against or burden[s] the interstate flow of articles of commerce." (328) The court defined the proper standard for the applicability of the Commerce Clause as whether it has a "'substantial effect'" on interstate commerce. (329) The Ninth Circuit found that hunting in Arizona substantially affects interstate commerce in two ways. First, due to the high quality of hunting in Arizona, the cap affected the flow of people between states as much as other recreational activities that the Supreme Court had determined fall under the dormant Commerce Clause. (330) Second, the Ninth Circuit determined that the cap on nonresident hunters had a substantial effect on interstate flow of goods because Arizona allows the interstate and international sale of antlers and nonedible animal products. Thus, the Ninth Circuit reversed the decision of the district court, stating that the dormant Commerce Clause applied to the hunting regulation.

Having decided that the dormant Commerce Clause applied to the Arizona regulation, the Ninth Circuit next considered whether the regulation facially discriminated against nonresidents or was facially neutral, but had a discriminatory effect. Finding that the regulation restricted hunting of game purely on the basis of state residency, the Ninth Circuit held that the regulation was discriminatory, and therefore "subject to the strictest scrutiny." (331) Based on this standard the court examined whether Arizona had met its burden of proving the regulation was narrowly prescribed to meet legitimate state interests.

Although the Ninth Circuit found that Arizona did provide evidence of legitimate interests for applying the cap, specifically conservation of the game population and maintaining recreational hunting for residents, the Ninth Circuit did not find evidence that the state considered other nondiscriminatory options which would adequately protect that same interest, pointing out that political support of state residents could not justify discrimination. While remanding for an examination of whether the state met this burden, the Ninth Circuit commented that the burden of conservation cannot be placed on nonresidents alone, and that similar regulations in other states would not be sufficient evidence that the cap was narrowly defined to equal the state's interests.

2. Wards Cove Packing Corp. v. National Marine Fisheries Service, 307 F.3d 1214 (9th Cir. 2002).

Wards Cove Packing Corporation (Wards Cove), a commercial fishing company, appealed the district court's summary judgment decision deferring to the National Marine Fisheries Service (NMFS) on an interpretative rule concerning a sablefish harvest regulation. The Ninth Circuit found no ambiguity in the regulation and therefore, no deference due to NMFS's interpretation. The Ninth Circuit remanded the case to the district court to find in favor of Wards Cove.

Under the Magnuson-Stevens Fishery Conservation and Management Act (332) and the Northern Pacific Halibut Act, (333) the Secretary of Commerce promulgated rules to create an Individual Fishing Quota (IFQ) system, which provided annual catch limits for sablefish (black cod) and halibut fisheries in Alaska, the Bering Sea, and Aleutian Islands regions. (334) These regulations require commercial fishing operators to file an application with NMFS, and if the application is denied, appeal to NMFS to fish for either halibut or sablefish in the regulated area. An owner must be "qualified," which entails having "made legal landings of halibut or sablefish" (335) in the qualifying years of 1988, 1989, or 1990. (336) Next, the owner is subjected to an initial quota share based on the owner's "highest total legal landings of halibut" between 1984 and 1990 (337) and "highest total legal landings of sablefish" between 1985 and 1990 (sablefish calculation years). (338)

Wards Cove applied to fish for both halibut and sablefish, but NMFS denied the sablefish permit because Wards Cove had made legal landings in the sablefish calculating years, but not during the more limited qualifying years. Therefore, even though Wards Cove made legal landings of halibut in the qualifying years, NMFS interpreted the regulation to mean that Wards Cove was not "qualified" for a quota share of sablefish. (339) However, the Ninth Circuit held that because the regulations were unambiguous, it would not defer to the agency's interpretation. Instead, the court found that the regulations based the qualification for a quota share of both halibut and sablefish on the "legal landings of halibut or sablefish" in the qualifying years. (340) Thus, Wards Cove qualified for an initial quota share of sablefish with its landings of halibut. The court reconciled this interpretation with the regulation that calculates the initial quota share, by reasoning that if people were qualified for a permit to land sablefish, but had not landed sablefish in the sablefish calculating years, then they would not receive a quota share. The Ninth Circuit therefore reversed and remanded to the district court to find in favor of Wards Cove and grant Wards Cove attorney fees and costs under the Equal Access to Justice Act. (341)

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

4. Forest Guardians v. Animal & Plant Health Inspection Service, 309 F.3d 1141 (9th Cir. 2002).

Forest Guardians and a coalition of conservation groups (collectively Forest Guardians) sought to enjoin the Animal and Plant Health Inspection Service (APHIS) and the United States Forest Service (USFS) from killing mountain lions to protect livestock in the Santa Teresa Wilderness Area in Arizona, arguing that it violated the Wilderness Act of 1964 (Wilderness Act), (342) the Arizona Wilderness Act, (343) and the National Environmental Policy Act (NEPA). (344) The district court granted summary judgment in favor of APHIS and USFS. The Ninth Circuit affirmed, ruling that 1) lethal predatory control to protect livestock in the Santa Teresa Wilderness was consistent with the Wilderness Act and the Arizona Wilderness Act, 2) the fact that USFS's manual might bar predator control was unpersuasive because agency manuals do not bind the agency and are not entitled to deference, and 3) USFS conducted adequate environmental assessments of the effects of predator control because the agency has discretion to determine the geographic scope of its NEPA analysis.

The court initially determined that USFS's authorization of lethal predator control did not violate either the Wilderness Act or the Arizona Wilderness Act because neither act expressly prohibited predator control in wilderness areas. (345) The court noted, however, that both acts authorize preexisting grazing activities to continue in wilderness areas and that livestock grazing necessarily entailed activities necessary to support grazing, including lethal predator control methods. The court consequently deferred to the agency's conclusion that the Wilderness Act authorizes lethal predator control.

The court also rejected Forest Guardians' argument that congressional guidelines incorporated into the Arizona Wilderness Act (346) disallowed lethal predator control. The court reasoned that even though the congressional guidelines permitted preexisting grazing to continue once an area was designated as wilderness, the guidelines did not necessarily prohibit predator control if the activity had not predated the wilderness designation. In addition, the court ruled that even if the USFS manual prohibited the use of lethal predator control in this circumstance, a manual, which does not have the force of law and does not bind the agency, is not entitled to judicial deference.

Finally, the court deferred to USFS's decision to review the impact of controlling mountain lions in the wilderness area as reported in a statewide study. The court reasoned that the statewide study addressed the effects of lethal predator control in the Santa Teresea Wilderness Area and that, under Kleppe v. Sierra Club, (347) USFS has discretion to define the scope of its environmental assessment under NEPA.

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

6. Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9th Cir. 2003), infra Part V.D.

7. Wilderness Society v. United States Fish and Wildlife Service, 316 F.3d 913 (9th Cir. 2003).

Wilderness Society and the Alaska Center for the Environment (collectively Wilderness Society) challenged an action of the United States Fish and Wildlife Service (FWS) permitting an enhancement project for sockeye salmon (Oncorhyncus nerka) to continue within a national refuge and wilderness area under the Wilderness Act (348) and the National Wildlife Refuge System Administration Act (Refuge Act). (349) The district court granted summary judgment for FWS on all counts. Wilderness Society appealed and the Ninth Circuit affirmed.

Since 1974, Tustumena Lake in Alaska has been part of a sockeye salmon research project in which salmon eggs were gathered, incubated at a hatchery, and released as fry into lake tributaries. Upon the passage of the Alaska National Interest Lands Conservation Act (ANILCA) (350) in 1980, Tustumena Lake became part of the Kenai National Wildlife Refuge (Refuge) and the Kenai Wilderness. Pursuant to ANILCA, FWS issued a Final Comprehensive Conservation Plan (Plan), environmental impact statement, and Wilderness Review in 1985. The Plan outlined the problem of off-refuge harvest of salmon and included a management effort to continue the stocking of salmon fry in the lake in addition to allowing natural spawning to dominate salmon production in most of the refuge. In 1992-1993, the research project was elevated to a "commercial enhancement project" under contract with the Cook Inlet Aquaculture Association (CIAA), a private nonprofit group dedicated to protection and rehabilitation of salmon and salmon habitat. CIAA and FWS conducted an environmental assessment (EA), and FWS created a Fishery Management Plan for the Refuge, discussing the project and indicating that whether the project should be allowed to continue was to be determined under the guidelines of the National Environmental Policy Act (NEPA). (351) After releasing a finding of no significant impact, FWS issued a special use permit to CIAA in 1997. Wilderness Society sued for injunctive and declaratory relief, arguing that allowing the project violated the Wilderness Act, ANILCA, the Refuge Act, NEPA, and the Administrative Procedure Act. (352) On appeal, Wilderness Society limited its challenge of the project to violations of the Wilderness Act and the Refuge Act.

Prior to considering the substantive claims, the Ninth Circuit considered the preliminary question of the deference due to FWS's decision to authorize the project. The Ninth Circuit applied the standard set out in United States v. Mead. (353) In Mead, the court set forth the test to determine whether to give an agency the high level of deference required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., (354) commonly known as Chevron deference. (355) Applying that test to FWS, the Ninth Circuit found that it owed Chevron deference to FWS's action approving the project, based on four considerations. First, Congress clearly gave FWS authority to manage and issue regulations for the Kenai Wilderness. (356) Next, the public had opportunity to comment on the EA, and this notice and comment procedure indicates Chevron deference is due. (357) The permit was also consistent with the overall Final Plan, which FWS had specific authority to promulgate and would be given Chevron deference. Finally, FWS followed the formal procedures of NEPA, indicating careful analysis and decision making. Despite the court's determination to use Chevron deference, it indicated it would arrive at the same conclusions using the less deferential Skidmore v. Swift & Co. (358) standard. After determining the deference issue, the Ninth Circuit then considered the substantive arguments by applying the Chevron test, evaluating 1) whether the statute was ambiguous, and 2) if so, whether the agency's interpretation of the statute was reasonable.

Wilderness Society claimed that the project violated the Wilderness Act because it failed to preserve the natural condition of the wilderness. The Ninth Circuit examined the language of the Wilderness Act concerning preservation of the natural environment and found both the undefined level of human activity allowed in a wilderness refuge and the inclusion of the mandate to "manage," in addition to "protect," the natural condition constituted ambiguities in the statute about how natural a given area must remain. (359) Based on this unclear language, the Ninth Circuit evaluated the reasonableness of FWS's interpretation that the project was permissible. Persuaded by the Plan's inclusion of the project, and reasoning that, due to commercial fishing outside the wilderness, the natural ecosystem grew dependent on the supplemented fish population, the Ninth Circuit determined that allowing the project to continue was reasonable and affirmed the holding of the district court.

Wilderness Society also argued that the project constituted a "commercial enterprise" expressly prohibited under the Wilderness Act. (360) Applying the Chevron analysis, the Ninth Circuit again found ambiguity in the statute. The court identified two ambiguities in the applicable provision of the Wilderness Act. First, the statute left open the question of whether the location of the commercial part of an activity was relevant

to categorizing the entire activity as a commercial enterprise. Second, the statute was unclear as to whether the term "commercial enterprise" itself referred to the appearance or the function of an activity. Given this lack of clarity, the Ninth Circuit decided that FWS's interpretation was reasonable and affirmed the district court in dismissing the claim.

Finally, Wilderness Society challenged the project as a violation of the Refuge Act, arguing that FWS's action was not compatible with the purpose of the Refuge. (361) The plaintiffs contended that artificial stocking of the salmon population conflicted with the purpose of conserving the fish and wildlife habitat in its natural condition. (362) Again applying the Chevron test, the Ninth Circuit found the Refuge Act unclear because the term "natural diversity" was ambiguous and other stated purposes for the Refuge included the protection and restoration of threatened species. (363) In light of that ambiguity, the court evaluated the reasonableness of FWS's action as a use compatible with the Refuge's purposes.

The Ninth Circuit determined that the purposes of ANILCA related to the evaluation of reasonableness because the Refuge Act specifically provided that conflicts must be resolved in favor of ANILCA. (364) The Ninth Circuit referred to three separate provisions of ANILCA which allow enhancement of fish populations. (365) Based on these provisions, the court determined that Congress intended to give FWS the authority to consider stock enhancement as a possible compatible use within the Refuge and affirmed the decision of the district court.

On all counts, the Ninth Circuit found that FWS acted within its authority to grant the project a permit based on the ambiguity of the statutes involved and the delegation of authority from Congress. Therefore, the Ninth Circuit affirmed the decision of the district court to grant summary judgment for FWS.

In dissent, Judge Fletcher took issue with the majority's basic evaluation of the ambiguity of the Wilderness Act and Refuge Act. Looking at the stated objectives of both statutes and ANILCA as applied to the Kenai Refuge, Fletcher concluded that congressional intent was clear and thus no deference was due to FWS's interpretation deviating from that intent.

Concerning the Wilderness Act, Judge Fletcher disagreed that the language was ambiguous. Relying on the tools of construction that require statutory language to be considered as a whole, (366) she denounced the majority's finding that words such as "natural condition," "permanent," and "commercial" were ambiguous. Judge Fletcher maintained that within the context of the statutes the terms are easily understood. Based on the plain meaning of the statutes, Judge Fletcher found that they could not include activities such as the "annual, ongoing alteration of the natural ecological balance" caused by the artificial removal and incubation of salmon eggs for the purpose of a commercial fishery. (367)

Judge Fletcher also disagreed with the majority that ANILCA provisions allowing enhancement type activities had any bearing on FWS's approval of the project. Fletcher pointed out that Congress listed exceptions to the general purpose to preserve natural conditions. (368) Because activities like the project were not part of that list, and because exceptions not among others enumerated are usually assumed to be purposefully excluded by Congress, (369) Judge Fletcher found that ANILCA does not support the project. Furthermore, she found that the general mandates of ANILCA do not overrule specific preservation purposes in the Wilderness Act.

Finally, Judge Fletcher argued that the majority misapplied the ambiguity analysis because it looked at the phrases or words in isolation, rather than as applied to the action by FWS. Finding nothing in the record showing that the stocking of salmon related to the natural salmon population, Judge Fletcher dissented.

8. United States v. Antoine, 318 F.3d 919 (9th Cir. 2003), infra Part III.

C. Forests

1. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002), supra Part I.E.

2. Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002).

Environmental groups Native Ecosystems Council and Bear Creek Council (collectively Bear Creek) challenged the approval of a timber sale by officials within the Department of Agriculture and Department of the Interior (collectively Defendants). Specifically, Bear Creek argued that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) (370) and the National Forest Management Act (NFMA) (371) by making a specific amendment to the Gallatin National Forest Plan (Forest Plan) that waived the requirement of a seventy percent Habitat Effectiveness Index (HEI) (372) and allowed more open roads than originally permitted. Bear Creek also claimed that the defendants violated the Endangered Species Act (ESA) (373) by failing to consider relevant factors in evaluating the effect of the sale on grizzly bears (Ursus arctos horribilis). At the administrative level, both arguments were denied. The district court granted summary judgment for the Defendants on all counts, and Bear Creek appealed. A divided Ninth Circuit affirmed in part and reversed in part.

The Administrative Procedure Act (374) governs judicial review of agency actions, authorizing the setting aside of an agency's decision if it is found to be arbitrary, capricious, or an abuse of discretion. (375) At issue in this case was the Darroch-Eagle timber sale, one of twelve proposed sales within the Gallatin National Forest on the northern boundary of Yellowstone National Park. USFS amended the Forest Plan for the Darroch-Eagle sale to allow for more open roads after the sale, in part due to the fact that the plot already had more open roads than allowed prior to the sale. USFS also proposed amending the road density requirement for the other eleven sales.

The Ninth Circuit first addressed Bear Creek's NEPA claim. While agreeing in part with the reasoning of the district court, the Ninth Circuit held that the district court erred in granting summary judgment to the defendants on the NEPA issue. Bear Creek argued that 1) USFS did not conduct a timely environmental assessment (EA), 2) that the proposed amendments for all twelve sales were connected and cumulative and thus had to be assessed together, and 3) that the EA was insufficient because it did not address the cumulative impact of all twelve timber sales. Under NEPA an agency can conduct an EA rather than the more exhaustive environmental impact statement (EIS) when it determines that the proposed action will not have a significant affect on the environment. (376) However, that EA must be conducted at an early point before commitment of resources to the action. (377) The Ninth Circuit affirmed the district court's determination that a memorandum contemplating waiver of the road density requirement prior to the EA did not indicate, in absence of other evidence, an irreversible commitment to the proposed sale, and thus did not invalidate that EA for timeliness.

The Ninth Circuit also found that a comprehensive EA for all the road density amendments was not required by NEPA because the actions were not connected or cumulative. In determining whether the proposed amendments were "connected," (378) and thus required a comprehensive assessment, the Ninth Circuit applied an "independent utility" test and found that because each timber sale could proceed independently of the others, they were not connected for purposes of NEPA. (379) Next, the Ninth Circuit evaluated whether the site-specific amendments had a cumulative impact requiring a comprehensive EA. Applying a "[c]umulative actions" test, the court found that although the waiver of road density for all the sales could create a significant environmental impact, they were not "[c]umulative actions" because each amendment would be adopted separately over a period of time. (380)

However, in considering whether the EA was sufficient to assess the impact of the waived HEI requirement, the Ninth Circuit held that the EA was deficient because it failed to provide a sufficient analysis of the cumulative impact of the road density requirement waiver for all the proposed sales within the greater Gallatin National Forest. In circumstances where "reasonably foreseeable future actions" contribute to a significant impact, (381) that combined impact must be assessed in the EA. Because the cumulative impact was not evaluated, a divided Ninth Circuit panel held that the district court erred in granting summary judgment on the NEPA claim.

The Ninth Circuit next affirmed the district court's decision that USFS did not violate NFMA by amending the open road density requirement for the proposed sale. NFMA provides a template for forest planning that requires the development of a forest plan for an entire forest and then requires site-specific level implementation consistent with that plan. (382) Bear Creek argued that USFS, by waiving the HEI for all of the proposed sales, made a significant amendment to the Forest Plan without preparing an EIS as required by NFMA. (383) The agency had determined that the amendment was not significant and thus did not prepare an EIS. The Ninth Circuit agreed that NFMA did not require cumulative assessments of all the proposed amendments because some of them were not yet adopted. Further, the court held that because the single amendment did not alter annual forest outputs or multiple use goals, the agency did not act arbitrarily in finding no significant impact warranting an EIS.

Finally, the Ninth Circuit reversed the decision of the district court on the ESA claim, holding that the actions of USFS were unlawful. Bear Creek argued that USFS violated the ESA by arbitrarily drawing the boundaries for its analysis of the proposed sale's effect on the threatened grizzly bear. Under the ESA, USFS must ensure via a biological assessment (BA) that any action it takes is unlikely to jeopardize the existence of threatened or endangered species. (384) The court explained that the proposed timber sale is within prime grizzly bear habitat and the species might be affected by the sale due to the change in food and foraging areas. Bear Creek challenged the BA for arbitrarily drawing the boundaries of the assessment area to exclude nearby sheep grazing land (sheep grazing land is dangerous to bears because they may be killed or relocated if they target this easy food source). A BA must include "all areas to be affected directly or indirectly" by the proposed action. (385) The action area USFS defined lopsidedly extended 16.5 miles in one direction from the proposed sale but only 1.5 miles to the east, excluding the sheep allotment. The Ninth Circuit found USFS acted arbitrarily in defining the assessment area because it failed to provide any basis--scientific or otherwise--to justify the peculiar boundaries it defined. The Ninth Circuit reversed the district court in granting summary judgment for the defendants on the ESA claim.

Judge Thompson concurred as to the NFMA and ESA claims, but dissented from the majority opinion on the NEPA claim. He found the majority erred by failing to consider any of the factors relevant to selecting the appropriate geographical scope for the EA, (386) instead requiring the EA to consider cumulative impacts of road density across the entire forest because the Forest Plan included density requirements. Judge Thompson found this scope to be overly broad. Finding inadequate evidence that USFS acted arbitrarily in defining the scope, he would have affirmed the holding of the district court on this point.

3. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002).

This case involved two authorized timber sales in the Boise National Forest: the Lightning Ridge and the Long Prong timber sales. Plaintiffs claimed that in authorizing the sales, the United States Forest Service (USFS) violated the National Forest Management Act (NFMA) (387) and the National Environmental Policy Act (NEPA). (388) Plaintiffs sought an injunction to stop logging associated with the timber sales. The district court held that Idaho Sporting Congress, Inc. and Alliance for the Wild Rockies (collectively ISC) failed to exhaust their administrative remedies for some of their claims. In addition, the district court held that some of ISC's claims were barred by claim preclusion, and the remainder failed on the merits. In rejecting the majority of the district court's holding, the Ninth Circuit held that ISC's claims were not barred by claim preclusion and that ISC had not failed to exhaust its administrative remedies for all of its claims.

The court explained that NFMA requires USFS to develop forest plans, (389) which must comply with NFMA. In 1990, USFS completed a Land and Resource Management Plan (Plan) for the Boise National Forest. The Plan utilized a proxy-on-proxy approach to comply with NFMA's requirement that "'wildlife habitat ... be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.'" (390) The court explained that in using the proxy-on-proxy approach, USFS selected an indicator species and then designated an amount of habitat necessary to maintain the population of that indicator species rather than monitoring the entire population to evaluate its continued viability. USFS then monitored the habitat of the indicator species for population changes. In USFS's 1990 Plan, the pileated woodpecker (Dryocopus pileatus) was selected as an indicator species. USFS determined that to maintain the species's viability, each pair of breeding woodpeckers needed three hundred acres of timber with one hundred acres of that being old growth. USFS also determined that there were approximately 90 pairs of breeding woodpeckers and therefore 27,000 acres of timber needed to be designated as woodpecker habitat. To accomplish this goal the 1990 Plan required 55,000 acres of timber to be designated as woodpecker habitat and required that new acres be allocated for any "'significant' areas of old growth ... lost to fire." (391)

The Ninth Circuit first addressed whether ISC's claims were barred because of claim preclusion. The court found that although ISC made almost identical arguments in prior challenges to timber sales within the Boise National Forest, its claims were not barred by claim preclusion in its challenge of the Lightning Ridge and Long Prong timber sales. The court reasoned that these were different sales from the previously challenged sales and that these sales had facts and issues different from the previous sales.

The court next addressed the issue of administrative remedy exhaustion. The Administrative Procedure Act (APA) (392) requires a plaintiff to exhaust its administrative remedies before bringing a challenge in federal court. (393) The Ninth Circuit reviewed the two claims that the district court dismissed and were still at issue in this case. First, the court considered ISC's claim that USFS failed to divulge whether it had developed a habitat conservation plan (HCP) for the sensitive species at issue. Next, the court considered ISC's claim that USFS neglected to determine the population or monitor the "'old-growth dependent Management Indicator Species.'" (394) On the first claim concerning the HCP, the court found that ISC did not make any mention of the claim when the issue was before USFS; thus, the court held that because USFS had no notice of the claim, the claim had not been exhausted. On the second claim, the Ninth Circuit found that ISC had "clearly expressed concern" (395) that the timber sales would harm the indicator species. Therefore, the court overturned the district court's denial of judicial review of the second claim.

In regard to ISC's NMFA claims, ISC argued that the old growth species viability standard was invalid and that it was not being met by USFS. ISC contended that the standard was invalid because assumptions made in developing the Plan were inaccurate. Specifically, the Ninth Circuit found that a 1996 Monitoring Report required to assess the Plan stated that changed conditions and new scientific information resulted in the Plan being insufficient. The court explained that the report included information concluding that "'the sustainability of old growth habitat "dedicated" in the Forest Plan appear[s] inadequate.'" (396) In addition, the report indicated that the standard was not being met because wildfires had destroyed timber, that timber thought to be old growth did not meet the definition of old growth in the Plan, and that other timber areas were at high risk of fire. Therefore, as the court explained, the report concluded that forty percent of the compartments (397) did not meet the standard.

ISC also argued that USFS failed to comply with the Plan because it did not rededicate forest after portions of the 55,000 acres set aside were destroyed by fire. USFS argued that because it did not find the loss of timber by fire significant, it was not required to allocate new timber to meet the standard. The Ninth Circuit disagreed with USFS, and found that forty percent noncompliance was significant.

The Ninth Circuit ultimately held that the standard was invalid and that USFS failed to comply with the standard. In doing so, the court considered additional evidence that many of the initial dedications of old growth never contained old growth timber. For example, in Management Area 35, where the Lightning Ridge timber sale was located, USFS was required to dedicate 1,280 acres of old growth. However, the environmental assessment for the Lightning Ridge sale determined that no old growth existed within Management Area 35.

In concluding its review of ISC's NFMA claims regarding the old growth viability standard, the Ninth Circuit held that the Lightning Ridge and the Long Prong timber sales were illegal. In addition, the court held that the standard was invalid and that USFS's actions did not meet the standard because USFS refused to rededicate additional timber or ensure that old growth timber was actually in the compartments. Thus, the court enjoined all logging associated with the two timber sales.

In an attempt to justify the two timber sales, USFS argued that it had applied a new definition of old growth, R4, (398) in approving the sales. USFS contended that although the new definition resulted in some harvest of old growth associated with the sales, sufficient stands of R4 old growth would remain after the sales. The Ninth Circuit rejected USFS's attempt to use a new definition of old growth because there was "no inventory of R4 old growth, and ... no plan in place setting aside blocks of R4 old growth." (399) Thus, the court found that USFS's use of the R4 definition of old growth was not part of a forest-wide plan as required by the NFMA.

ISC also argued that USFS was required to monitor the Indicator species. The ISC relied on USFS's regulations to support their argument. ISC claimed that each species "'shall be identified and selected as management indicator species'" (400) and that "'[p]opulation trends of the management indicator species [shall] be monitored.'" (401) The Ninth Circuit distinguished prior case law that accepted the proxy-on-proxy approach. For example, the court distinguished Inland Empire Public Lands Council v. United States Forest Service, (402) where USFS's method "reasonabl[y] ensure[d] viable populations of the species at issue." (403) Here the court found that USFS's method was invalid because application of the proxy-on-proxy method resulted in no old growth in Management Area 35. In addition, the court explained that in the Lightning Ridge EA, USFS's wildlife expert considered it necessary for USFS to monitor the indicator species habitat "'independent of any old growth analysis.'"(404) The court concluded its consideration of USFS's application of the proxy-on-proxy method by holding that its use in this case was arbitrary and capricious. In dicta, the court stated that it would encourage monitoring indicator species populations.

On the NEPA claims, the Ninth Circuit held that the Long Prong timber sale EIS was arbitrary and capricious. However, the court held that the Lightning Ridge EA was adequate. The court found the Long Prong EIS invalid because the scope of the cumulative effects analysis was not large enough. The court explained that the 1996 Monitoring Report concluded that the Plan was unable to ensure viable habitat because "'the habitat needs of these species must be addressed at a landscape scale.'" (405) However, USFS analyzed the impacts to the species on a "home range" scale. (406) Therefore, the court found that USFS's analysis was arbitrary and ordered USFS to produce a new EIS or a supplemental EIS. With respect to the Lightning Ridge EA, the court found that USFS's analysis was sufficient because the EA found no adverse impacts to the species; therefore, USFS was not required to complete an analysis at a scale larger than the home range scale.

The Ninth Circuit refused to order a forest-wide injunction of logging. The court explained that it preferred to address issues on a site-by-site basis. However, because the court found ISC had demonstrated irreparable harm, it remanded the case to the district court and ordered an injunction of the Lightning Ridge and Long Prong timber sales until USFS complied with NFMA and NEPA.

The dissent argued that the Lightning Ridge sale should not be enjoined because the EA determined that the sale would not harm the habitat of the pileated woodpecker, lynx (Lynz canadensis), wolverine (Gulo gulo), fisher (Martes pennanti pacifica), boreal owl (Aegalius funereus), goshawk (Accipeter gentilis), flammulated owl (Otus flammeolus), or white-headed woodpecker (Picoides albolartus). Therefore, according to the dissent, the sale did violate NFMA's viability requirement.

4. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).

The Ninth Circuit reviewed two separate challenges to the adoption by the United States Forest Service (USFS) of the roadless area conservation rule (Roadless Rule). USFS developed the Roadless Rule in response to President Clinton's 1999 order to the agency to develop a plan to protect inventoried and uninventoried roadless areas within national forests, which USFS had documented since the 1970s. (407) USFS initiated a notice and comment procedure under the Administrative Procedure Act (APA) (408) and developed an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) (409) to analyze the environmental effects of the proposed Roadless Rule. The final Roadless Rule banned road building on all 58.5 million acres of roadless areas subject to a number of limitations. (410)

In the first suit, Kootenai Tribe of Idaho and Boise Cascade Corporation (411) alleged that USFS violated NEPA and the APA by failing to provide adequate notice and opportunity for comment on the Roadless Rule EIS, failing to consider a reasonable range of alternatives to the proposed alternative, and failing to adequately consider cumulative impacts to the environment as a result of the proposed rule. The State of Idaho (412) filed a separate action against USFS, claiming similar injuries under NEPA and the APA. Environmental groups, led by the Idaho Conservation League (ICL), (413) intervened as defendants in both suits. Forest Service Employees for Environmental Ethics (FSEEE) intervened as defendants in the case brought by Kootenai Tribe.

The district court issued a preliminary injunction against the Roadless Rule in both cases. First, the district court ruled that ICL and FSEEE properly intervened as a matter of right (414) because they successfully demonstrated a legally protectable interest related to the issue in the case. The district court reasoned that the organizations' interest in conservation and wildlife protection were interests Congress contemplated when enacting NEPA. Second, the district court ruled that Idaho and Kootenai Tribe satisfied constitutional standing requirements. Third, the district court ruled that Idaho and Kootenai Tribe were entitled to preliminary injunctions halting implementation of the Roadless Rule because they demonstrated a likelihood of success on the merits and made an adequate showing of irreparable harm. The district court reasoned that USFS failed to provide an adequate time for public comment. Further, the court opined that USFS failed to provide a reasonable range of alternatives in the EIS because the agency only considered alternatives that included a ban on road building in all roadless areas. According to the district court, USFS also failed to adequately consider cumulative effects to the environment as a result of the proposed rule. Finally, the district court was satisfied that plaintiffs would incur irreparable harm if the court did not grant the preliminary injunction, relying primarily on a General Accounting Office Report, which showed that several areas would suffer from a lack of wildfire management as a result of the Roadless Rule.

The Ninth Circuit reversed on several counts. It ruled that both ICL and FSEEE had standing to appeal despite USFS's failure to appeal the district court's ruling. Second, the court determined that the district court erred in allowing the defendant intervenors to intervene as a matter of right, but concluded that permissive intervention was appropriate because Federal Rule of Civil Procedure 24(b) left the decision to the district court's discretion. Third, the court found that Idaho and Kootenai Tribe established constitutional standing. Fourth, the court determined that Idaho and Kootenai Tribe properly pled their claim under the APA because NEPA required that USFS develop an EIS for the Roadless Rule. Finally, the court concluded that Idaho and Kootenai Tribe were not entitled to a preliminary injunction because they failed to establish irreparable harm or a likelihood of success on the merits for their NEPA claim, and the balance of hardships did not weigh in favor of Kootenai Tribe.

Because USFS did not appeal the district court's preliminary injunction, the initial issue before the Ninth Circuit was whether intervenors could defend the government's alleged violations of NEPA and the APA on appeal. Under Federal Rule of Civil Procedure 24, a party may intervene as a matter of right (415) or permissively. (416) Ninth Circuit cases construing Federal Rule of Civil Procedure 24(a) reveal that a party may intervene as a matter of right if "(1) the motion [is] timely; (2) the applicant [asserts] a 'significantly protectable' interest relating to property or a transaction that is the subject matter of litigation; (3) the applicant [is] situated so that disposition of action may as a practical matter impair or impede the interest; and (4) the applicant's interest [is] inadequately represented by the parties." (417) The court reasoned that ICL and FSEEE failed to meet the test for intervention as of right because the federal government is generally the only proper defendant in an action claiming procedural violations of NEPA and private parties do not have a protectable interest in defending NEPA compliance actions because private parties may not be held liable under the statute.

Nonetheless, the court determined that the district court did not abuse its discretion by allowing ICL and FSEEE to permissively intervene. Unlike Federal Rule of Civil Procedure 24(a), under Federal Rule of Civil Procedure 24(b), parties seeking to intervene must show only that they have a "claim or defense" that shares a question of law or fact with the main action. (418) The court reasoned that because ICL and FSEEE asserted defenses of the Roadless Rule responsive to the plaintiffs' challenge and asserted an interest in the "use and enjoyment" of roadless areas at issue in the case, the organizations successfully established a defense that shared a question of law or fact with the plaintiffs' claim. (419)

Moreover, the court determined that ICL and FSEEE had constitutional standing to appeal the case, necessary under precedents that require "independent jurisdictional grounds" for permissive intervention to be proper. (420) Constitutional standing requires 1) an injury in fact, 2) causation, and 3) redressability. The court found that ICL showed injury in fact by establishing that its members used roadless areas for recreational purposes that would be less protected if the Ninth Circuit upheld the district court's decision. (421) Similarly, FSEEE established an injury in fact by proving that its members work in national forests impacted by the Roadless Rule. Second, the court reasoned that FSEEE and ICL established causation because each organization suffered from the increased risk of road building in roadless areas that affected the interests of their members and that such an increase was "fairly traceable" (422) to the grant of the preliminary injunction. Finally, rectifying the district court's decision would redress the organizations' injuries by giving force to the Roadless Rule.

The court then addressed ICL and FSEEE's counter-contention that the plaintiffs lacked constitutional standing to challenge the Roadless Rule. The court clearly outlined the Supreme Court's test for standing as described in Friends of the Earth v. Laidlaw Environmental Service (Laidlaw). (423) As detailed in Laidlaw, "plaintiff[s] must show: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; ... (2) the injury is fairly traceable to the challenged action ... and (3) it is likely ... that the injury will be redressed" by the court's decision. (424) In addition, under the APA plaintiffs must show that their alleged injury falls within NEPA's "zone of interests." (425)

To establish an injury in fact, the court explained that plaintiffs could prove a "threatened concrete interest" (426) by establishing a "'geographic nexus' between their NEPA claims and the land allegedly suffering an environmental impact." (427) The court reasoned that Idaho satisfied the geographical nexus requirement by showing that the Roadless Rule may potentially lead to wildfire and damage from insects that might injure their ownership interests in land adjacent to national forests at issue. The court concluded that these harms need not be impending because plaintiffs do not need to show "actual environmental harm" to establish standing. (428) Just as the court determined that ICL satisfied the injury in fact requirement demonstrating that their members have a recreational or aesthetic interest in the areas at issue, (429) it found that the Kootenai Tribe satisfied the injury requirement by demonstrating that a potential for increased risk of wildfire and pest disease might injure their "aesthetic, recreational, and spiritual" use of the affected area. (430) For the same reasons, the court opined that Boise Cascade also satisfied the injury in fact requirement.

The court further reasoned that plaintiffs met the causation and redressability requirements for satisfactory constitutional standing. The court opined that plaintiffs in NEPA cases need only establish causation with "reasonable probability," (431) and plaintiffs previously demonstrated that wildfires, insects, and disease could result if USFS implemented the Roadless Rule. Further, the court concluded that a favorable decision would redress the plaintiffs injuries because, in the case of procedural injuries, ensuring proper procedures is sufficient for redressability. (432) Finally, plaintiffs met the prudential zone of interest requirement because the Ninth Circuit previously ruled that "protection of the environment falls within NEPA's zone of interests" (433) and is an interest "'shared by all citizens.'" (434) As a result, plaintiffs' interest in protecting nearby forests from wildfires, insects, and disease fell within NEPA's zone of interest.

Constitutional standing aside, ICL and FSEEE asserted that plaintiffs' challenge to the Roadless Rule was misplaced because NEPA did not apply to the rule. ICL and FSEEE claimed that implementation of the rule did not trigger NEPA's requirements because the rule was not a federal action "significantly affecting the quality of the human environment" (435) because USFS was only withdrawing management of roadless areas. The court noted that, given that NEPA does not generally apply to actions that maintain the status quo, an EIS is typically required when humans change the status quo. The crux of the plaintiffs' argument was that banning road building and management activities in roadless areas would cause environmental harm by encouraging serious wildfires, pests, and disease. ICL and FSEEE, however, countered that withdrawing USFS management of roadless areas, while possibly amounting to a change in the status quo, was not human intervention. The court ultimately concluded that, based on the history of human intervention in forest management, withdrawing management as part of the Roadless Rule would constitute an alteration in the status quo requiring an EIS under NEPA.

The court finally addressed whether the district court abused its discretion by granting a preliminary injunction prohibiting implementation of the Roadless Rule. (436) A preliminary injunction is warranted when the plaintiff demonstrates "(1) a combination of probable success on the merits combined with a possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips in plaintiffs' favor." (437)

The Ninth Circuit first set aside the district court's determination that USFS failed to comply with NEPA's notice and comment procedures. The court noted that NEPA is a procedural statute that does not mandate certain substantive results, but requires that agencies take a "hard look" at environmental effects. (438) NEPA requires USFS to involve the public in its decision making process. (439) The court overruled the district court's determination that USFS violated NEPA by failing to include detailed maps or descriptions of affected areas at the scoping stage and draft EIS comment period. The court explained that NEPA did not require maps at the scoping phase of the EIS process, because the purpose of scoping is to notify affected parties of a proposed rulemaking (440) and to narrow issues that will be analyzed at the EIS phase of the rulemaking. The court reasoned that USFS did ultimately provide detailed maps of the affected area before the agency issued the draft EIS. Further, the court noted that the plaintiffs had actual notice of the affected area because they had been involved in discussions concerning the roadless areas with USFS for years.

The Ninth Circuit subsequently set aside the district court's determination that USFS likely violated NEPA's notice requirements by adding 4.2 million acres of roadless area between publication of the draft EIS and the final EIS. Plaintiffs argued that the public's involvement was hindered because USFS did not identify these areas as included in the proposed rule. The court noted that while a supplemental EIS must be published for substantial changes in an EIS, a new EIS is not required in every instance. (441) In this case, the court reasoned that the public had an opportunity to comment on the final EIS before the final rule was published. Further, the impropriety should not affect the entire roadless area, just the 4.2 million acres.

Moreover, the court overruled the district court's finding that USFS likely violated NEPA by failing to extend the comment period past sixty-nine days, reasoning that NEPA only established a minimum forty-five day comment period, (442) and sixty days was at least fifty percent longer than this minimum requirement. The court failed to find a workable standard for determining an adequate comment period based on the district court's decision that sixty-nine days was not long enough. On the contrary, the court found that USFS provided ample opportunity for public participation in the rulemaking process, holding over 400 public meetings and receiving over 1,150,000 written comments. The court concluded that "invalidation of an agency action under NEPA when the lead agency provided substantially more than the required 45 day minimum comment period prescribed by regulations is unprecedented." (443)

The court further ruled that USFS considered a reasonable range of alternatives, as required by NEPA. (444) USFS provided three alternatives to the proposed rule, all involving the prohibition of road construction in the affected area. The plaintiffs argued that at least one alternative should allow road construction in inventoried roadless areas; however, the court agreed with the intervenors' argument that allowing road construction in roadless areas would conflict with the agency's project objective in promulgating the rule, to "'prohibit[] activities that have the greatest likelihood of degrading desirable characteristics of inventoried roadless areas and [to] ensur[e] that ecological and social characteristics of inventoried roadless areas are identified and evaluated through local land management planning efforts.'" (445) The court reasoned that NEPA alternatives "must be interpreted less stringently" when the primary purpose of the proposed action is to protect the environment, and not to harm it. (446) The court emphasized that the government should not have to consider environmentally damaging alternatives to satisfy NEPA's requirements, concluding that given the importance of roadless areas, their sensitivity to land management, and the small amount remaining, a ban on road construction in these areas was "not the drastic measure that the plaintiffs ma[de] it out to be." (447) The court reasoned that given NEPA's policy objectives to protect the natural environment, (448) USFS was in the best position (after public participation) to determine whether a general ban on road construction in certain areas would best protect those areas. As such, USFS did not have to consider an alternative that could protect roadless values and permit road construction.

The court overruled the district court's determination that USFS failed to adequately consider cumulative effects of the proposed rule, such as catastrophic wildfire, because they were too speculative to warrant consideration beyond the agency's discussion of mitigation measures, forest health, and fire ecology. In short, the court concluded that USFS took the requisite hard look at the environmental consequences of the proposed rule.

In addition to the plaintiffs' failure to establish a likelihood of success on the merits, the court ruled that the plaintiffs failed to establish that the balance of hardships tipped in their favor or that irreparable harm might result from implementation of the proposed rule. The plaintiffs argued that implementation of the rule would limit management activities in the affected areas designed to prevent wildfires, disease outbreaks, and insect infestations, and that failure to implement these activities as needed would cause irreparable damage to the forest. Nonetheless, the court reasoned that protecting roadless areas would also result in "immeasurable benefits" to the forest. (449) The court explained that in cases challenging an action designed to protect the environment, the public's interest in protecting "precious, unreplenishable resources must be taken into account," (450) concluding that the district court failed to adequately take into account the public's interest in preserving national forests.

Moreover, the court concluded that limitations on active management are not typically considered irreparable harm because the restrictions can be removed and "[e]nforced inaction" does not pose an immediate threat. (451) The court reasoned that a three-year moratorium on road building had already been in place prior to promulgation of the rule, and that USFS decided not to enforce the rule until it was amended and an additional period of notice and comment conducted. In short, the court concluded that the district court abused its discretion when it granted plaintiffs' motion for preliminary injunction.

Circuit Judge Kleinfield concurred in part and dissented in part. The dissent disagreed with the majority's analysis of permissive intervention under Federal Rule of Civil Procedure 24(b) and requirements for notice, public comment, and alternatives under NEPA. First, the dissent argued that under Federal Rule of Civil Procedure 24(b)(2) no common issue of law or fact existed between the intervenors' claim or defense and the main action. The dissent argued that the majority should have applied the rule from Portland Audubon Society v. Hodel, (452) in which the court concluded that defendant-intervenors do not have a protectable interest under Federal Rule of Civil Procedure 24(a) in NEPA cases because only the government can be liable under NEPA. (453) The dissent pointed out that although the case in Portland Audubon Society involved intervention as of right, the court in that case relied on Seventh Circuit precedent, Wade v. Goldschmidt, (454) which also rejected permissive intervention under Federal Rule of Civil Procedure 24(b) in NEPA cases. The dissent found that the intervenors' interest in the use of roadless areas was insufficient to establish "common" claims or defenses, not "merely parallel but distinct interests." (455)

On the merits of the preliminary injunction, the dissent did not agree that USFS adequately considered a reasonable range of alternatives under NEPA. The dissent argued that the "hard look" standard required that the agency consider an alternative that did not include a total ban on road building in the affected area, pointing out precedent that established that the "existence of a viable but unexamined alternative renders an environmental impact statement inadequate." (456) Further, the dissent challenged the majority's assertion--that NEPA's alternatives requirement was less stringent in cases where the primary purpose of the proposed rule was to protect the environment--for failing to cite to any legal authority, noting that national forests, unlike wilderness areas, were also established to provide a renewable source of timber.

The dissent further argued that USFS failed to provide an adequate notice and comment period. The dissent emphasized that notice must be meaningful and provide an opportunity for participation throughout the rulemaking process. The dissent pointed out that the district court's finding of facts extensively chronicled USFS's failure to communicate clearly and adequately with the public, or to grant reasonable extensions of the comment period in light of the confusing nature of the disseminated information. Moreover, the dissent reasoned that under Ninth Circuit precedent, NEPA's procedural requirements must be strictly construed. (457) The dissent concluded that there was no evidence to warrant reversing the district court's factual findings.

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

6. Wilderness Society v. United States Fish and Wildlife Service, 316 F.3d 913 (9th Cir. 2003), supra Part II.B.

D. Water Law

1. Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002), infra Part V.G.

2. Madison v. Graham, 316 F.3d 867 (9th Cir. 2002), cert. denied, 123 S. Ct. 221 (2003).

A group of landowners challenged the constitutionality of a Montana stream access law, alleging it violated the Due Process Clause of the Fourteenth Amendment (458) and was void for vagueness. The district court held that the landowners actually alleged a Fifth Amendment takings claim (459) instead of a due process claim and that the landowners had failed to properly plead the vagueness claim. (460) Therefore, the district court dismissed for failure to state a claim. (461) The landowners appealed, and the Ninth Circuit affirmed.

The contested state law declared that "all surface waters that are capable of recreational use may be used so by the public without regard to the ownership of the land underlying the waters." (462) The landowners all owned properties crossed by streams subject to this law. Therefore, even though under Montana law these landowners owned the land under the water, (463) they were unable to restrict the recreational use of the water by the public.

The Ninth Circuit reviewed the case de novo. First, the court addressed whether the landowners' "claim that a statute precludes private property owners from excluding others from their property must be analyzed" as a substantive due process or a takings claim. (464) The court relied on another Ninth Circuit case, Armendariz v. Penman, (465) which held that the "'explicit textual source of constitutional protection' against 'private takings'" is found in the Takings Clause of the Fifth Amendment and, therefore, that clause must be used to review claims of private takings. (466) According to the Ninth Circuit, Armendariz extended the principles of the Supreme Court case, Graham v. Connor, (467) which held that an excessive use of force case must be brought under the "explicit textual source of constitutional protection" in the Fourteenth Amendment and not under substantive due process rights. (468)

The landowners argued that their claim only asked for declaratory and injunctive relief and therefore could not be characterized as a takings claim. The Ninth Circuit responded by pointing out that landowners in the past have sought injunctive and declaratory relief when challenging an alleged taking under the Constitution. (469) In addition, the landowners argued that Armendariz was not good law after the Supreme Court's decision in Eastern Enterprises v. Apfel, (470) and because Armendariz was a private takings case as opposed to a public taking. In response, the Ninth Circuit pointed to its decision in Esplanade Properties, LLC v. City of Seattle (Esplanade), (471) a public takings case, which found that Eastern Enterprises did not disturb Armendariz. (472) The court in Esplanade explained that none of the justices in the majority in Eastern Enterprises had found that the law in question was unconstitutional under a substantive due process claim. (473) Instead, Justice O'Connor, writing for the plurality, held that the law violated the Takings Clause, but declined to address the due process claim. (474) Thus, the Ninth Circuit affirmed its decision in Esplanade that Armendariz was good law. The court determined that a takings claim was required to address the landowner's harm, but that the landowners failed to make such a claim. Therefore, the Ninth Circuit held that the landowners failed to allege a substantive due process claim and affirmed the district court's dismissal.

Second, the Ninth Circuit addressed the landowners' argument that the Montana law was void because it was unconstitutionally vague. The landowners in particular pointed to the fact that the state legislature did not address the legality of portage around natural barriers, instead only addressing those around artificial barriers. The Ninth Circuit affirmed the district court's decision dismissing the claim because the landowners did not allege in their complaint that the streams that crossed their properties had natural barriers requiring portage beyond the high water mark. In addition, the Ninth Circuit found no problem with vagueness regardless of the content of the complaint. Therefore, the court affirmed the district court's decision on the vagueness issue and dismissed the complaint with prejudice.

E. Hydroelectric Power

1. Mountain Rhythm Resources v. Federal Energy Regulatory Commission, 302 F.3d 958 (9th Cir. 2002).

Mountain Rhythm Resources, Mountain Water Resources, and Watersong Resources (collectively Mountain Rhythm) sought review of Federal Energy Regulatory Commission (FERC) orders dismissing their applications for licenses to build hydroelectric facilities on tributaries of the Nooksak River in Whatcom County, Washington. The proposed projects were located at least 45 miles (by river distance) from Puget Sound and 900 to 4000 feet above sea level (although Whatcom County borders on Puget Sound). FERC dismissed the permits because Mountain Rhythm failed to obtain state certification from Washington that the projects were consistent with the state's Coastal Zone Management Program (CZMP), which called for a Shoreline Management Act (SMA) permit from Whatcom County. The Ninth Circuit denied Mountain Rhythm's petition for review, ruling that 1) FERC's decision to rely on state coastal zone maps to require state certification was not arbitrary and capricious because FERC could properly consider the project sites in the state's coastal zone, 2) Mountain Rhythm's application for an SMA permit from Whatcom would not have been futile because Whatcom County may have issued a variance, and the application itself might have been valuable to the Department of Ecology (DOE) in its review of the project, 3) DOE did not waive its right to approve the projects' consistency with the CZMP because Mountain Rhythm failed to provide all of the necessary information, and 4) DOE's conditioning state certification of CZMP consistency on issuance of a County SMA permit did not interfere with FERC's authority to issue the relevant permits.

Under the Federal Power Act (FPA), (475) an individual who plans to construct a hydroelectric facility must first obtain a license from FERC. (476) Under the Coastal Zone Management Act (CZMA), (477) which protects certain coastline areas, FERC cannot issue a permit to a hydropower applicant unless the relevant state certifies that the project complies with the state's CZMP. (478) A state waives the right to object to an applicant's CZMP certification six months after the date of the application, as long as the application contains all necessary data and information. (479) Once denied by the state, an applicant may appeal to the Secretary of Commerce to establish that the proposed project does in fact comply with the CZMA.

The Ninth Circuit first addressed Mountain Rhythm's complaint that FERC's dismissal of its license applications was arbitrary and capricious because Washington's coastal zone impermissibly extended too far inland. Mountain Rhythm argued that the CZMA required that the coastal zone area only extend "to the extent necessary to control shorelands." (480) In dismissing this argument, the Ninth Circuit reasoned that the projects were located entirely within Whatcom County, which National Oceanic and Atmospheric Administration (NOAA) regulations permitted Washington to categorically designate as coastal zone area. (481) The Ninth Circuit further concluded that Mountain Rhythm could not challenge NOAA's approval of Washington's coastal zone by petitioning for review of FERC's denial of hydropower licenses. The Ninth Circuit reasoned that if Washington had denied certification of Mountain Rhythm's application for a FERC license, Mountain Rhythm could have properly petitioned the Secretary of Commerce to override Washington and determine that the projects were consistent with the CZMA nonetheless. As such, the court ruled that FERC acted appropriately when it relied on Washington's coastal zone area mapping, which placed the project areas in the coastal zone.

Mountain Rhythm then argued that FERC's decision was arbitrary and capricious because the agency allowed Washington to condition consistency certification on Whatcom County's approval of an SMA permit, which Mountain Rhythm argued was futile because the County flatly prohibited any hydropower projects at the proposed site. The court dismissed this argument because Mountain Rhythm failed to even apply for an SMA permit from Whatcom County, so it could not be certain that the county would deny it. Second, the Ninth Circuit reasoned that even if rejected, Washington might still certify the projects if the county's objections to the project were unrelated to the coastal area. The court rejected Mountain Rhythm's argument that Washington could not require an SMA permit because a permit is not data or information, reasoning that an application for a permit might contain the data or information that Washington required to issue its consistency certification.

The Ninth Circuit next responded to Mountain Rhythm's argument that DOE waived its right to certify Mountain Rhythm's project because DOE did not respond to Mountain Rhythm's application within six months. Mountain Rhythm argued that even though the six-month time limit would not begin to run until the state application was complete, the County's SMA permit that DOE requested was not necessary information under Washington's CZMP. While the Ninth Circuit acknowledged that the state's CZMP did not explicitly require a County permit, the court reasoned that the requirement could be inferred because the CZMP called for a "comprehensive control program" (482) and the DOE gave prompt notice to Mountain Rhythm that the agency required a County SMA permit. The Ninth Circuit therefore held that it was not an abuse of discretion for FERC to require the County SMA permit before beginning the state's time limit for certifying Mountain Rhythm's project as consistent with Washington's CZMP.

The Ninth Circuit finally addressed Mountain Rhythm's argument that FERC's decision was arbitrary and capricious because conditioning FERC approval on a County SMA permit would impermissibly allow the County to interfere with FERC's exclusive authority to grant hydropower licenses. The Ninth Circuit noted that the CZMA explicitly stated that federal hydropower licenses must be consistent with coastal zone requirements. (483) Furthermore, the Ninth Circuit reiterated that Mountain Rhythm could override a state's consistency determination by petitioning the Secretary of Commerce to determine that the project complied, with the CZMA. (484) Finally, the court concluded that the County SMA permit could not supplant FERC's authority to issue hydropower licenses because granting the SMA permit would not entitle a permittee to operate a hydropower plant nor would a County's denial of an SMA permit limit the Secretary of Commerce's ability to override a state consistency certification. The Ninth Circuit concluded that FERC did not act arbitrarily and capriciously when it denied Mountain Rhythm's application for a hydropower license because Mountain Rhythm failed to obtain state certification under Washington's CZMP.

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

At issue in this case was California Trout's petition for review of a Federal Energy Regulatory Commission (FERC) order that denied California Trout a rehearing regarding FERC's reissuance of an annual license to Southern California Edison (Edison) for operation of Project 1933, the Santa Ana River Hydroelectric Project (Project). Edison's license for the Project expired in 1996. Prior to the license expiration, Edison filed an application for a new license and requested water quality certification from the California State Water Resources Control Board (Board) pursuant to section 401 of the Clean Water Act (CWA). (485) In 1995, the Board denied water quality certification for Edison's new license. In 1996, FERC issued an annual license that would renew automatically until a new license was issued to Edison. In 2002, Edison filed an application for a new license from FERC and again requested water quality certification from the Board.

California Trout challenged the issuance of the annual license because Edison had not obtained water quality certification from the Board. California Trout requested a rehearing regarding FERC's issuance of Edison's annual license extending from May 1, 2000 to May 1, 2001. FERC denied California Trout's request for a rehearing on the grounds that section 15(a)(1) of the Federal Power Act (FPA) (486) "mandate[d] issuance of an annual license on the terms and conditions of the existing license," (487) FERC's duty to issue the license was nondiscretionary, and FERC denied rehearing of the order.

The Ninth Circuit reviewed FERC's interpretation of the CWA de novo. The court afforded Chevron deference (488) to FERC's interpretation of the FPA. Under section 313(b) of the FPA, (489) the Ninth Circuit explained that it had jurisdiction to review a FERC order because the statute provided that "'[a]ny party to a proceeding ... aggrieved by an order issued by [FERC] in such proceeding may obtain a review of such order in the United States Court of Appeals[.]'" (490) The Ninth Circuit found that the issuance of each annual license to Edison was the equivalent of an order, and therefore, California Trout met the statutory requirements to obtain review of the annual license issuance even though California Trout failed to challenge the original order providing for the automatically renewing annual license. The court explained that FERC's issuance of an annual license was "an exercise of [FERC's] authority" (491) even though the license issued automatically. In addition, the court explained that if it denied review of the issuance of annual licenses because California Trout failed to challenge the original order, all annual licenses subsequent to the original order could be denied judicial review, which would be illogical as a policy matter. Thus, the Ninth Circuit concluded that it had jurisdiction to review California Trout's petition.

With regard to the annual license at issue, Edison did not request water quality certification from the Board for the annual license. California Trout argued that "the issuance of annual licenses after the expiration of the original fifty-year license [was] subject to the requirement of State water quality certification under CWA [section] 401(a)(1)." (492) FERC rejected California Trout's argument because FERC found that its duty to issue annual licenses under section 15(a)(1) of the FPA (493) was "a ministerial and nondiscretionary act, a statutory mechanism that require[d FERC] to authorize continued project operation under the terms and conditions of the original license." (494) The Ninth Circuit affirmed FERC's conclusion because FERC's interpretation was entitled to Chevron deference and was consistent with prior case law.

The Ninth Circuit explained that FERC had a nondiscretionary duty to issue annual licenses to existing licensees. In addition, the court explained that only where existing licenses allowed for the imposition of new conditions may FERC add conditions to an annual license. Thus, because the existing Edison license contained no such provision, FERC was not allowed to require Edison to obtain water quality certification as a condition of renewing the annual license. Finally, the Ninth Circuit, relying on Lac Courte Oreilles Board v. Federal Power Commission, (495) explained that the legislative purpose of imposing such a nondiscretionary duty on FERC was to prevent interrupted services that might harm industries if annual licenses could be held up due to newly imposed conditions. Thus, Congress intended to protect dependent industries by requiring FERC to issue annual licenses on the same terms as the licensee's initial license.

Therefore, California Trout's petition for review of FERC's order denying rehearing was denied. However, the Ninth Circuit made clear that it had not addressed the situation where issuance of annual licenses had become a de facto renewal.

III. ENVIRONMENTAL CRIMES

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

Defendants (Technic Services, Inc. (TSI) and TSI's secretary and treasurer Rick Rushing) appealed their convictions and sentences under the Clear Air Act (CAA) (496) and Clean Water Act (CWA). (497) The Ninth Circuit ultimately reversed Rushing's conviction on Count 8--solicitation of false statements from employees--for lack of evidence. The Ninth Circuit affirmed the remainder of the convictions. With respect to the defendants' sentences, the Ninth Circuit vacated the enhancement of Rushing's sentence for abuse-of-trust, but otherwise affirmed the district court's decision.

TSI, an Alaska corporation, provided asbestos remediation services. TSI won a bid that involved asbestos removal in buildings at a former pulp mill. The work included removal of asbestos insulation on pipes, boilers, and salvageable components. After TSI began work on the mill, the Occupational Health and Safety Administration (OSHA) and the Environmental Protection Agency (EPA) ordered a temporary stop in work after inspections uncovered TSI's noncompliance with appropriate work standards for asbestos removal. TSI completed the asbestos removal from the powerhouse at the former mill in January 1997. A pulp mill employee, Cle Wade, subsequently certified that the building was clean. However, because of its earlier inspections, EPA was concerned that TSI was washing waste water through the floor drains in the mill buildings and into Silver Bay. In 1998, before TSI demolished the powerhouse and at EPA's request, Wade reinspected a pipe within the powerhouse and discovered asbestos. The government subsequently began a criminal prosecution against TSI and Rushing.

A jury convicted both defendants on all counts. (498) The court sentenced Rushing to 57 months in jail plus three years of supervised release and a $520,000 fine for CWA violations. (499) TSI was assessed a $600,000 fine, $520,000 for CWA violations, and five years of probation. (500)

The Ninth Circuit first set forth the standards of review. Concerning defendants' claims of insufficient evidence the standard of review was de novo. Concerning defendants' claims of a multiplicitous indictment, the standard of review was also de novo. Concerning the defendants' allegations regarding the district court's jury instructions and the district court's decisions regarding evidence, the Ninth Circuit noted that the standard of review was abuse of discretion. Concerning the defendants' sentencing, the standard of review was abuse of discretion. However, the court reviewed fact finding in sentencing for clear error, and the court's application of the abuse-of-trust enhancement was reviewed de novo.

The Ninth Circuit first addressed defendants' argument that Count 1, relating to the work standards for asbestos, was duplicitous. The court noted that Federal Rule of Criminal Procedure 12(b)(2) (501) requires a defendant to raise a duplicity argument before trial, or the argument is waived. Thus, the court found that defendants had waived this argument. With regard to the argument that the evidence was insufficient to support a conviction on Count 1, the Ninth Circuit considered the evidence regarding the regulation of asbestos and visible emissions. The court found that the evidence was sufficient to support a conviction on Count 1 because testimony was provided regarding the concentration of asbestos and testimony and videotape evidence were offered regarding the visible emissions. Finally, with respect to Count 1, the defendants contended that the district erred in its jury instructions. The Ninth Circuit noted that the defendants did not object at trial to the jury instructions at issue. The court conducted a clear error review and considered whether the instructions "prejudiced the defendant's substantial rights so as to affect seriously the fairness or integrity of the proceedings." (502) The court found that the instructions did not misstate the law and that the district court did not commit error in giving them to the jury. Thus, the Ninth Circuit affirmed the convictions on Count 1.

With regard to the criminal convictions for knowingly discharging a pollutant under the CWA (503) (Count 2), the defendants contended that there was a National Pollutant Discharge Elimination System (NPDES) permit in place for the mill, that there was no evidence that pollutants were in the water discharged from the mill, and that the district court abused its discretion by refusing to admit three letters that analyzed the asbestos content of the discharged water. The Ninth Circuit found that the district court did not err with respect to Count 2. The court found that prior to the mill closure there was a NPDES permit to discharge pollutants, but that it was only in effect until the mill closed. Additionally, the court noted that TSI did not have a NPDES permit. Finally the court explained that a general stormwater permit did not cover the discharge of asbestos that occurred at the mill.

Addressing the defendants' argument about lack of evidence, the court noted that an EPA representative testified that asbestos was a pollutant under the CWA. In addition, the court considered evidence that defendant Rushing was present at a project meeting where discussions about the floor drains to Silver Bay occurred. Finally, the Ninth Circuit referred to the testimony of TSI employees, which confirmed that asbestos was washed down the drains and into Silver Bay. Thus, the court found that there was sufficient evidence for a jury to conclude that defendants discharged pollutants to the bay. The Ninth Circuit also affirmed the district court's refusal to admit three letters proffered by the defendants, finding that the defendants had not established a proper foundation for the evidence.

With regard to Count 3, relating to Rushing's interference with federal proceedings, Rushing claimed that there was insufficient evidence of a federal proceeding. Additionally, he argued that to convict on an obstruction charge, the government must prove that such obstruction occurred in a "proceeding pending before a department or agency of the United States." (504) The Ninth Circuit found that TSI's work was investigated by EPA and that "[a]n investigation into a possible violation of the [CAA or CWA], which could lead to a civil or criminal proceeding ... [was] a kind of proceeding." (505) The court also noted that Rushing tampered with air monitors that EPA used to determine concentrations of asbestos in the air. Furthermore, the court noted that TSI used the results of the air monitoring to prove its compliance with the federal work product standard. Therefore, the Ninth Circuit found that there was sufficient evidence to support a conviction on obstructing a federal proceeding.

Next, the Ninth Circuit considered Counts 4 through 9, which addressed Rushing's solicitation of signatures on false statements to EPA. The Ninth Circuit rejected three of Rushing's four arguments, including: 1) that it was error to admit the statements because the statements were protected under Federal Rule of Evidence 408, (506) 2) that the evidence failed to show Rushing's role in the statements, and 3) that the district court erred in refusing to consolidate Counts 4-9. The Ninth Circuit rejected Rushing's first argument because it found that Rushing had stipulated to admission of the statements. In addition, although the evidence concerning the statements was produced during settlement, under Rule 408 the evidence was properly admitted because it was offered for another purpose, "such as proving ... an effort to obstruct a criminal investigation." (507) The court noted that the evidence was offered for another purpose in this case because criminal obstruction of an administrative investigation was similar to obstruction of a criminal investigation. Thus, the court rejected Rushing's first argument.

Concerning Rushing's second argument, the court noted that testimony of three workers stating that Rushing solicited their signatures to the statements was evidence to show Rushing's role in the statements. Finally, in rejecting Rushing's claim that the district court erred in refusing to consolidate Counts 4-9, the Ninth Circuit applied a test for multiplicity. The test was whether each count required proof of an additional fact, which another count does not. In this case, the court explained that proof that Rushing solicited each particular person was required for each count; therefore, the district court was correct in refusing to consolidate the counts.

With regard to Count 8, the court accepted Rushing's argument that there was insufficient evidence to convict on the obstruction of procuring employee Hildebrand's signature. The court noted that there was no evidence that Hildebrand signed the statement. There were no witnesses to Hildebrand's signature and there was no evidence of the circumstances surrounding the signing of the statement if Hildebrand did sign it. Therefore, the court reversed the conviction on Count 8.

The Ninth Circuit then addressed Rushing's sentencing arguments. Rushing claimed that the district court erred in applying a six-level upward adjustment of his offenses under United States Sentencing Guidelines (U.S.S.G.) section 2Q1.2(b)(1)(A), pertaining to ongoing releases of hazardous substances into the environment that cause contamination. (508) The court referred to the proposition set forth in United States v. Ferrin, (509) which stated that proof of pollutants contaminating the environment was needed for the guideline to apply. In addition, the court cited United States v. Van Loben Sels, (510) which upheld the application of the guideline when a defendant discharged water polluted by benzene into a city sewer system, noting that the court could infer from evidence of the ongoing discharge that the environment was contaminated. In finding that the district court did not err in applying the guideline, the Ninth Circuit noted the evidence presented in the present case. The court considered the lack of containment of the facilities that would allow asbestos to escape into the environment. In addition, the court considered TSI's regular washing of asbestos down floor drains into Silver Bay. Furthermore, the court considered that workers removed filters in the floor drains allowing contaminated water to drain into the bay. Thus, the court determined that there was sufficient support for the district court's application of the section 2Q1.2 guideline.

Rushing also argued that the district court erred by adjusting his offense level under U.S.S.G. section 3B1.1(a) based upon his aggravated role. The Ninth Circuit found that because there was testimony by five or more workers stating that Rushing was the leader in perpetrating violations of the CAA, the record supported the district court's application of U.S.S.G. section 3B1.1(a). This section of the sentencing guidelines authorized the court to increase the defendant's offense level by four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." (511) Because the court found that Rushing met the first part of the standard, it did not address whether the offense was otherwise extensive.

Finally, the court considered Rushing's argument that he did not violate a position of trust and therefore the district court erred in increasing his offense level under the abuse-of-trust enhancement set forth in U.S.S.G. [section] 3B1.3. (512) The Ninth Circuit held that Rushing did not violate a position of public trust. The court explained that a position of trust is established from the point of the victim. Thus, the court concluded that the victim was the public with respect to the CWA and CAA violations and the victim was the federal government and the public with respect to the obstruction violations. Therefore, the issue was whether the defendant was in a position of trust toward the public or the federal government. The court noted that the record did not support a finding that the defendant was in such a position. The defendant was not a government employee. In addition, the court noted that neither having a government issued licensed to conduct asbestos remediation nor being under a government contract triggered the role of a public trust position for the defendant. However, the court noted that if the guidelines were considered ambiguous as to whether Rushing was in a position of public trust, that the rule of lenity would apply and the abuse of public trust enhancement would not apply.

The Ninth Circuit then considered the argument that Rushing violated a position of private trust. The court remanded this part of the case because of ambiguity concerning what the district court would have found in addressing this aspect of the enhancement. The court noted that the private trust is "characterized by professional or managerial discretion" (513) and that it is likely that Rushing's role, as secretary and treasurer of TSI would qualify. However, the court did not conclude whether Rushing abused a position of private trust.

Finally, the court addressed the defendants' arguments concerning the fines for their CWA violations. The Ninth Circuit rejected the defendants' arguments, finding that Count 2 adequately conveyed the length of the violations: 104 days. Therefore, the district court did not err in computing the fines because it assessed the minimum fine of $5,000 per day and multiplied it for the length of the violation. Thus, the fine of $520,000 assessed by the district court was correct.

The dissent disagreed with the majority's decision regarding the abuse of public trust enhancement, arguing that the guidelines were not ambiguous, and therefore the rule of lenity would not apply. In addition, the dissent did not find that Rushing was not a government employee to be dispositive of the issue. The dissent argued that the court must look to facts of the defendants' conduct and determine whether a position of public trust could be inferred.

2. United States v. Price, 314 F.3d 417 (9th Cir. 2002).

Dennis Price, president of AB-HAZ Environmental, filed with the Ninth Circuit an interlocutory appeal of the district court's denial of a motion to dismiss a Clean Air Act (CAA) (514) criminal indictment. (515) Price and his company, AB-HAZ, had been indicted after the company supervised the removal of asbestos from hotel and casino buildings before demolition in Clark County, Nevada. Price claimed that the federal CAA prosecution was barred under the Double Jeopardy Clause (516) because he had already settled with the Clark County Heath District (District) after it alleged violations of local air pollution law. The Ninth Circuit determined that it had jurisdiction because the court found that Price's appeal was "colorable" (517) and the issue was one of first impression. However, the Ninth Circuit held that the Double Jeopardy Clause did not bar the federal criminal prosecution.

In reaching its decision, the Ninth Circuit examined the separate sovereign doctrine, which states that "a single act that violates the laws of two separate sovereigns constitutes two separate crimes, and prosecutions by each of these sovereigns does not violate the Double Jeopardy Clause." (518) In trying to prove the inapplicability of the doctrine, Price argued that the federal government had delegated to the District, through the state, the authority to enforce the standards under the CAA, and therefore the state and federal laws were not separate. However, the court found that the District received its authority to punish Price from the state's police power.

Even though the state submitted its air pollution standards to the Environmental Protection Agency for approval under the CAA, the state had the freedom to adopt more stringent standards than those in the CAA. In addition, the Ninth Circuit pointed out that the CAA explicitly allows for the retention of state authority and does not preempt state law. (519) Therefore, the court found that the federal government and the District were separate sovereigns and held that Price's indictment was not barred by double jeopardy.

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

Biking enthusiast Dahl challenged a United States Forest Service (USFS) fee for recreational use of a national forest. The district court convicted him for failure to pay the recreational fee and ordered payment of the fee plus a special assessment. Dahl appealed and the Ninth Circuit affirmed in part.

Dahl frequently biked in the Los Padres National Forest in California, but failed to purchase an Adventure Pass for his vehicle parked within the forest. The pass was required under the Recreational Fee Demonstration Program (520) enacted by Congress in 1996 as part of the appropriations act. In 1998 and 1999 Dahl received eleven written warnings before being issued a citation for failure to pay the recreational fee on October 24, 1999. When Dahl refused to pay, the government charged him with a violation of 36 C.F.R. [section] 261.15, (521) and the district court convicted him of a Class B misdemeanor. Dahl appealed the conviction on the basis that the fee program was invalid on several grounds. The Ninth Circuit rejected all of them.

First, Dahl challenged the fee program based on USFS's categorization of all four national forests in Southern California as a single area for the fee program. While Dahl argued this was against legislative intent, the Ninth Circuit found he presented no evidence supporting this argument.

Next, Dahl argued that the recreational fee program conflicted with his freedom to bike on forest roads under 16 U.S.C. section 460l-6a. In addition, he argued that the fee constituted an amendment or repeal of 16 U.S.C. section 460l-6a. The Ninth Circuit found no conflict between the two statutory provisions because the appropriations act required fee collection regardless of other legislation. (522) Based on this language, the fee program was read to be consistent with other laws. The court also dismissed Dahl's argument that section 315 repealed or amended 16 U.S.C. section 460l-6a by implication, relying on a Supreme Court case that held that such a repeal or amendment exists only where the legislative intent is clear. (523) Finding no clear legislative intent for amendment or repeal, the Ninth Circuit found no merit to this argument. Alternatively, Dahl argued that if 16 U.S.C. section 460l-6a and section 315(b) of the Act were separate provisions, his conviction was void because the regulation he was charged under only applied to section 460l-6a. The Ninth Circuit denied this argument because 36 C.F.R. section 261.15 allowed prosecution for failure to pay any fee, not only those arising under 16 U.S.C. section 460l-6a.

Dahl also challenged the fee program on the basis of improper delegation of authority and vagueness. He argued that USFS had too much discretion under the fee program. The Ninth Circuit decided that, based on the guidelines Congress set out for USFS in the Act, the authority delegated to the agency was permissible. In addressing Dahl's argument that the term "recreation" was too vague under the fee program, the Ninth Circuit applied the standard laid out in City of Chicago v. Morales, (524) determining that the term, as applied to mountain biking, sufficiently put the public on notice as to what actions were included.

Dahl's final argument offered that under 36 C.F.R. section 261.15 the Class B Misdemeanor conviction was improper. The Ninth Circuit agreed, because under the regulation no fine over one hundred dollars or any imprisonment could be imposed. Based on federal statute, (525) an offense without possibility of imprisonment qualified only as an infraction. Thus, the Ninth Circuit upheld the conviction, but remanded to amend the judgment to be an infraction rather than a Class B Misdemeanor.

4. United States v. Antoine, 318 F.3d 919 (9th Cir. 2003).

Defendant Antoine appealed his conviction under the Bald and Golden Eagle Protection Act (BGEPA), (526) as a violation of the Religious Freedom Restoration Act (RFRA). (527) Antoine, a member of the Cowichen Band of the Salish Indian Tribe in British Columbia, obtained dead eagles in Canada and brought the eagle parts to the United States where he exchanged them for money and goods. Antoine alleged that this exchange was part of his native custom of potlatch. The district court assumed that all of Antoine's conduct was of religious significance.

The BGEPA makes it illegal to "'knowingly ... take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle' or part thereof." (528) However, the BGEPA contains an exception for members of federally recognized tribes allowing them to "apply for permits to possess and transport eagles or eagle parts for religious purposes." (529) Antoine was not a member of a federally recognized tribe. Antoine argued that he was exempt from the BGEPA because it imposed a substantial burden on his exercise of religion and it was not the least restrictive means of achieving a compelling government interest. The district court recognized that the BGEPA imposed a substantial burden on Antoine; however, the court found that the act met the standards of strict scrutiny. The Ninth Circuit found that the government had a compelling interest in protecting eagles as a threatened or endangered species. Furthermore, the court found that "the permit scheme was the least restrictive means of pursuing that interest." (530) The court rejected Antoine's attempts to distinguish United States v. Hugs, (531) a case which held that the government's interest in protecting threatened or endangered species was compelling and that the permit scheme was the least restrictive means of realizing that interest. First, Antoine argued that because the United States Fish and Wildlife Service had proposed a rule to remove the bald eagle (Haliaeetus leucocephalus) from the threatened species list, the government's interest was now less compelling. The Ninth Circuit explained that although the government's interest may be less, the government is not required to relitigate that interest unless evidence is provided that proves there has been a "substantial change in relevant circumstances." (532) Thus, the court found the proposed delisting rule to be insufficient to warrant relitigation. Second, Antoine argued that his exclusion from the permit scheme violated RFRA. The court in Hugs did not address whether the permit scheme's restriction to recognized tribe members was valid. (533) Here, the court noted that the supply of eagles is fixed and that the holding in Hugs that the permit was the least restrictive means of protecting eagles, ended "any challenge to the government's refusal to increase supply beyond that." (534) The court noted that RFRA requires that least restrictive means be implemented to avoid substantial burdens on religion, and that Antoine was asking the government to burden other religions more than his. The court concluded that this was not an appropriate claim and that an alternative is not less restrictive if it places additional burdens on others.

The Ninth Circuit concluded that the permit program in the BGEPA did not discriminate facially on the basis of religion because Antoine was excluded based on his affiliation with a nonrecognized tribe, not his religion. Thus, the court found that Antoine's prosecution was not a violation of RFRA because tribal membership was a rational basis for excluding him from the statutory exception.

IV. NATIVE AMERICAN ISSUES

1. Native Village of Quinhagak v. United States, 307 F.3d 1075 (9th Cir. 2002).

Alaskan native villages (Quinhagak plaintiffs) sued Alaska and the United States to enforce their fishing rights under the Alaska National Interest Lands Conservation Act (ANILCA). (535) Finding that the Quinhagak plaintiffs prevailed on the merits, the district court awarded attorney fees for the litigation stages but not the administrative stages of the suit. Alaska appealed the award, and the Quinhagak plaintiffs cross-appealed the denial of attorney fees for the administrative stages. The Ninth Circuit affirmed the district court's award of litigation fees, but reversed and remanded for consideration of a fee award for the administrative stage.

Litigation over Alaskan native subsistence fishing rights had been ongoing for twelve years. Two key issues at stake were whether navigable and federally reserved waters in Alaska are managed under ANILCA (the "where" issue), and whether the state or federal government had jurisdiction over the waters (the "who" issue). The federal court combined two major cases involved in the controversy, Katie John v. United State (536) and Alaska v. Babbitt (537) (collectively Katie John/Babbitt), staying all other proceedings until the core issues were resolved in the combined case. The Quinhagak plaintiffs sued for declaratory judgment concerning their fishing rights, and their action was stayed along with the other cases awaiting the resolution of the core issues in Katie John/Babbitt. The Quinhagak plaintiffs also joined the other parties in filing amicus briefs in Katie John/Babbitt. After the district court in Katie John/Babbitt found that ANILCA applied to all navigable waters in Alaska and confirmed federal management authority, the district court in the instant case ruled in favor of the Quinhagak plaintiffs, who then filed for attorney fees under ANILCA. (538) The district court found that the Quinhagak plaintiffs were prevailing parties, and therefore could recover attorney fees for the litigation phase, but not for the administrative phases because ANILCA did not authorize fees for these phases.

The Ninth Circuit affirmed the district court's finding that Quinhagak plaintiffs were eligible for attorney fees under ANILCA. On appeal, the state argued that the Quinhagak plaintiffs did not raise the "who" issue in their case and thus should not receive attorney fees for work on this issue in Katie John/Babbitt. The court disagreed, citing three reasons. First, during the preliminary injunction hearing the State recognized that the federal jurisdiction issue related to the Quinhagak case. Second, both courts found the issue central to the present case because it relied on Title VIII subsistence rights which would not apply if the State had jurisdiction. Finally, the Quinhagak plaintiffs were invited by the court to file, and did file, briefs in the Katie John/Babbitt case. Based on their participation in Katie John/Babbitt and the centrality of the "who" issue to determination of their case, the Quinhagak plaintiffs were prevailing parties entitled to attorney fees for their work in Katie John/Babbitt.

On cross-appeal, the Quinhagak plaintiffs challenged the denial of attorney fees for the administrative stages of the case. While the Ninth Circuit agreed with the district court that ANILCA does not expressly award attorney fees for required administrative proceedings, the court found that it also did not expressly deny fees. The language of ANILCA awards attorney fees to prevailing parties in an "action." (539) Relying on the analogous issue decided by the U.S. Supreme Court in relation to the Clean Air Act (540) in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, (541) the court determined that the language of the act should be read broadly, so as to permit costs and fees for the administrative phases, regardless of the timing. Following the Supreme Court's reasoning, if the administrative work was "ordinarily necessary" to the action, the court had discretion to award such costs. (542) In considering ANILCA, the Ninth Circuit determined that Congress clearly expressed its goal to protect native fishing rights and its intention that administrative proceedings assist natives in maintaining those rights. (543) Applying the rule in Pennsylvania, the Ninth Circuit concluded that administrative phases are ordinarily necessary to action under ANILCA and thus the district court had discretion to award fees for those phases of the action. The Ninth Circuit remanded the case to the district court to determine what attorney fees for administrative proceedings the Quinhagak plaintiffs were entitled to under this broad reading of ANILCA.

2. Anderson v. Evans, 314 F.3d 1006 (9th Cir. 2002).

Numerous animal conservation groups and citizens appealed the district court's summary judgment decision in favor of the United States Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS), and the Makah Indian Tribe. The conservation groups claimed that the government violated the National Environmental Policy Act (NEPA) (544) by failing to complete an environmental impact statement (EIS) on the Tribe's plan to resume their traditional practice of hunting California gray whales (Eschrichtius robustus) in the Olympic Coast National Marine Sanctuary, the Strait of Juan de Fuca, and the open waters of the Pacific Ocean. The conservation groups also argued that the government and the Tribe violated the Marine Mammal Protection Act (MMPA) (545) by acting without a permit, despite the argument by the government and the Tribe that the MMPA did not apply to the Tribe. The Ninth Circuit held that the government violated NEPA because it did not resolve "substantial questions" of whether the whaling would have significant effects on the environment, (546) and that the MMPA applied to the Tribe, who violated the Act by falling to get a permit to take the gray whale.

The Ninth Circuit reviewed the government's decision not to prepare an EIS under an "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard. (547) The specific standard applied by the court in evaluating the necessity of conducting an EIS was whether the government agencies took a "'hard look' at the environmental consequences of the proposed action." (548) This case was the second time that the court had reviewed an environmental assessment (EA) approving the Tribe's whaling plan. In its previous decision, Metcalf v. Dally, (549) the Ninth Circuit had found the previous EA to be improper, because it was done after the government had settled a deal with the Tribe. (550) In Metcalf, the court ordered a new EA and stated that when it was given to the courts for reconsideration the courts would apply "additional scrutiny." (551) However, the court noted that in this case NEPA was violated even under the traditional standard, let alone the stricter standard proscribed in Metcalf.

To determine if the government had violated NEPA by not preparing an EIS, the court looked at Council on Environmental Quality (CEQ) regulations (552) that provided factors to determine whether the Tribe's whaling activities "significantly [affected] the quality of the human environment" under NEPA. (553) In particular, the court examined the following four factors: 1) whether the Tribe's whaling plan would impact public safety, (554) 2) whether the effects of its whaling to the human environment would "likely ... be highly controversial," (555) 3) whether some effects were uncertain or involved unknown risks, (566) and 4) whether this whaling would set a precedent for future whaling, which would possibly create a cumulative harm. (557) In examining these factors, the court emphasized that the groups did not have to show that the whaling activities would have significant impacts, but only that there were "substantial questions" about whether the whaling would have a significant effect. (558)

First, the court found that, in terms of the public safety issue, the groups did not establish the existence of substantial questions. The plaintiffs attempted to show the risk of harm from high-powered rifles and injured whales to boats and people in the area. However, the court decided that the government appropriately relied on a safety expert hired by the Tribe because the government "objectively evaluate[d] the qualifications and analysis of the expert." (559) In addition, the EA evaluated and rejected findings of the environmental groups' expert and assessed the safety measures that the Tribe had included in its plan. Therefore, the Ninth Circuit deferred to the agencies' evaluation of the scientific evidence and found that the government's action was not arbitrary and capricious with regard to public safety.

Second, the Ninth Circuit addressed the controversy and the uncertainty surrounding the Tribe's whaling and found that the EA did not adequately address potential impacts on local gray whale populations. Disagreement surrounded the number of California gray whales that annually remain in and around the Olympic Coast National Marine Sanctuary and within the Strait of Juan de Fuca while the rest of the California gray whales migrate north to the Bering and Chukchi Seas. The Tribe's plan allowed for hunting these local whales. The government maintained that--instead of consisting of a small, local group as the plaintiffs argued--the local whales were part of a larger Pacific Coast Feeding Aggregation (PCFA) that disperses along the coast from California to southern Alaska rather than migrating all the way to the Bering and Chukchi Seas. Therefore, the government argued that the Tribe's whaling would not significantly affect a small, local population, because other whales from the larger PCFA population would replace the local whales. However, the Ninth Circuit found that the EA did not analyze the impact upon the local whales and whether new recruits from the PCFA would reduce this impact. Thus, given the debate between scientists and the lack of treatment by the EA, the court found that there were significant questions about the effect to the local environment and held that an EIS was required.

Third, the Ninth Circuit found that the precedential effect of the Tribe's whaling on the United States and other countries had not been adequately considered in the EA, a fact supporting the need for an EIS. The court examined the International Whaling Commission (IWC), an international regulatory organization that sets annual whaling quotas. (560) The IWC allows "aboriginal subsistence whaling" as long as it "conform[s] to quotas for various whale stocks issued by the IWC." (561) The IWC, because of internal disagreement on whether the Tribe had subsistence need for whaling, left the quota for the California gray whale purposely vague on the issue of the Tribe's aboriginal subsistence quota. Thus, the United States determined the Tribe's quota. The Ninth Circuit worried that other countries could use this vague language to declare a subsistence need for their aboriginal groups. In addition, the court believed that the Tribe's quota could lead to increased whaling by other United States groups, resulting in a potential significant impact on the environment. Thus, the court held that an EIS was necessary based on this factor in combination with the other factors. It vacated the whaling quota for the Tribe, suspended the implementation of the agreement between the Tribe and NMFS, and set aside NMFS's "finding of no significant impact."

The Ninth Circuit next addressed whether the Tribe was subject to the MMPA, which requires a permit or waiver to overcome its moratorium on the taking of any marine mammal. (562) Because the Tribe had not applied for a permit, the government would have violated the MMPA if it issued a quota for gray whales and a permit had been necessary. The government and the Tribe argued that the MMPA did not apply, because the Tribe received its quota through international treaty, thus falling into an exception in the statute. In the alternative, they argued that, because the Tribe reserved the right to whaling in the 1855 Treaty of Neah Bay, under which the United States received most of the Tribe's land on the Olympic Peninsula, (563) the MMPA did not affect the Tribe.

First, the Ninth Circuit addressed the claim that the Tribe's whaling fell into an exception of the MMPA for takings "expressly provided for by an international treaty" (564) because the Tribe received its authority for whaling from the International Convention for the Regulation of Whaling (ICRW), which created the IWC. (565) The court found that the exception only applied to international treaties that were entered into before 1972. (566) The government relied on the 1946 signing date of the ICRW, arguing that because ICW was given authority to set quotas on that date, the 1997 quota should be considered a 1946 whaling right. The court pointed out that the Tribe received its quota in 1997 and that the MMPA's exemption did not cover amendments. In addition, the court looked at another section of the MMPA that required existing treaties to be amended in order to be consistent with the MMPA. (567) Therefore the court did not think that "Congress subordinated its goal of conservation in the United States waters to the decision of unknown future foreign delegates" of the IWC. (568) Next, the court decided that, even if the MMPA allowed amendments of international treaties to carry the original signing date of the treaty, the decision by the IWC was not specific enough because it failed to mention the Tribe or give it a set quota. Furthermore, the vague language of the IWC's decision created too much uncertainty for the court to allow an exemption under the MMPA's "expressly provided for" requirement. (569) Finally, the court found that no domestic law implemented the Tribe's whaling quota. Therefore, the government and the Tribe were unable to avoid the MMPA through its international treaty exception.

Next, the Ninth Circuit evaluated whether the Tribe's domestic treaty rights were affected by the "conservation necessity principle." (570) To determine if the MMPA, because of its conservation purpose, could regulate the Tribe's rights that stemmed from the 1855 treaty with the United States, the court examined the following three factors: 1) whether the United States had jurisdiction over the waters in which the whaling took place, 2) whether the MMPA applies equally to people in treaties and to those not in treaties, and 3) whether the MMPA must apply to the Tribe's treaty rights in order to achieve its purpose of conservation. The court easily affirmed the first factor, because the whaling would have taken place within the jurisdictional waters of the United States. (571) Also the court found that under the second factor the MMPA applied to many people not party to a treaty.

Under the third factor the court determined that the conservation necessity existed under the MMPA and therefore the Tribe's treaty rights were affected. The court found that the main purpose of the MMPA was to make sure that marine mammals not only survived, but also flourished. In addition, the court pointed out that the decision whether to require the Tribe to obtain a permit under the MMPA should not be based solely on the Tribe's current whaling plan, but also on the Tribe's future plans and those of other coastal tribes that had treaties. Therefore, in order to assure a healthy population of marine animals, the court decided that it was necessary for the Tribe to apply for an MMPA permit. The court affirmed this decision by examining the language of the Tribe's 1855 Treaty, which the court determined allowed for the Tribe to share the resources with non-Indians. Thus, the MMPA, in protecting the marine mammal population for all people, was congruent with the 1855 Treaty. In sum, the Ninth Circuit held that the MMPA was applicable to the Tribe and that the government violated the MMPA by issuing a quota in the absence of a permit.

3. United States v. Antoine, 318 F.3d 919 (9th Cir. 2003), supra Part III.

V. LITIGATION ISSUES

A. Civil Procedure

1. United States v. Carpenter, 298 F.3d 1122 (9th Cir. 2002).

The Wilderness Society and Great Old Broads for Wilderness (collectively Wilderness Society) appealed from the district court's denial of their motion to intervene as of right on the side of the government in a lawsuit that the United States brought against representatives of a citizens group and Elko County, Nevada. The Ninth Circuit held that Wilderness Society's motion was timely even though the suit had been pending for eighteen months because Wilderness Society properly relied on the government to represent adequately their interests and acted quickly once they found out that the government had not.

Originally, the United States Forest Service (USFS) sued representatives of the citizens group to enjoin them from trespassing on USFS land. The group was trying to restore a road that ran adjacent to a river, populated by a federally protected fish. Elko County was joined because it claimed rights to the road. The parties participated in a confidential mediation and confidential settlement proceedings before they reached an agreement. Then, the court lifted the confidentiality order. Wilderness Society subsequently moved to intervene because they believed that the United States had agreed improperly not to contest Elko County's right of way in exchange for continued management by USFS and for observation of environmental laws.

The Ninth Circuit found that, under the confidentiality order, the government did not give notice that it was not properly representing the interests of a group of citizens. To protect confidential negotiations from interventions, the court established that parties could rely on the government to adequately protect their interests until they have notice to the contrary. Therefore, the court held that the motion to intervene was timely and that Wilderness Society was entitled to intervene.

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

3. Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002), infra Part V.G.

4. Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002), infra Part V.D.

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

The Cities of Buena Park, Hawthorne, Hermosa Beach, Huntington Park, Paramount, Redondo Beach, Seal Beach, South Gate, Torrance, Lynwood, Lawndale and Long Beach (the Cities) appealed the district court's denial of their motion to intervene in a consent decree proceeding. The Cities also appealed the district court's approval of the consent decree. The Ninth Circuit affirmed the district court's denial of the Cities' motion to intervene and dismissed the remainder of the appeal for lack of jurisdiction.

Between 1959 and 1965, a rubbish disposal facility operated as a landfill in Carson, California. In 1982, the California Department of Toxic Substances Control (DTSC) found hazardous waste at the site. In 1995, the DTSC issued a Final Remedial Action Plan (Plan) which allocated eighty percent of the aggregate liability for the soil and upper groundwater contamination to the generators of the hazardous waste disposed of at the site. The plan also indicated that the Atlantic Richfield Co., Chevron U.S.A., Inc., Exxon Mobil Corp., Phillips Petroleum Co., Shell Chemical Co., Shell Oil Co., Southern California Gas Co., Texaco, Inc., Union Oil Co. of California, and Unocal Corp. were potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (572) The Plan did not identify the Cities as PRPs. However, the Plan was not binding and imposed no limits to CERCLA's strict joint and several liability.

In December 1995, DTSC sought recovery of response costs under CERCLA and state law from the owners of the site. DTSC also proposed a consent decree, which would have capped the landowner's liability at $26 million. In July 1996, the oil companies moved to intervene in opposition of the landowner consent decree. The oil companies' motion to intervene was denied by the district court, and the oil companies subsequently appealed. In August 1997, the landowners sought contribution claims under CERCLA from the oil companies. In 1998, the oil companies' appeal was stayed so settlement discussions could occur between DTSC, the oil companies, and Long Beach Oil Development Co. In 1999, the oil companies invited all of the PRPs to participate in settlement negotiations with DTSC. In September 1999, the oil companies provided evidence tying the Cities and other PRPs to the landfill. Within the same month, the oil companies proposed a second settlement meeting that required the Cities to enter into confidentiality agreements to participate. "[M]ost if not all of the Cities refused to execute the confidentiality agreement and were not permitted to attend the meeting." (573) Thereafter, in November 1999, the oil companies and DTSC provided a settlement offer to the Cities in exchange for full release and contribution protection. The Cities rejected the offer. In January 2000, the oil companies and DTSC again asked the Cities to participate in settlement discussions; again most of the Cities refused.

In February 2000, Shell Oil. Co., Union Oil Co. of California, and Unocal Corp. sought contribution from the Cities. In May 2000, the Cities were once again asked to attend settlement negotiations with the oil companies, landowners, and DTSC. In September 2000, the same request was made to the Cities. In October 2000, DTSC sought judicial approval of a consent decree between DTSC, the landowners, the oil companies, and others and provided notice of the consent decree to interested parties. In November 2000, the Cities challenged the proposed consent decree by submitting comments to DTSC, which moved for judicial approval of the consent decree on January 5, 2001. The same day the Cities, for the first time, moved to intervene. The district court denied the Cities' motion to intervene and entered the consent decree, and the Cities appealed.

The Cities moved to intervene as of right under section 113(i) of CERCLA (574) and Federal Rule of Civil Procedure 24(a). (575) They also moved for permissive intervention. (576) The Cities' motions were denied by the district court because: "(1) the motions were untimely, and failed to establish a legally protectable interest that was impaired; (2) the DTSC adequately protected [the] Cities' interests; and (3) [the] Cities' interests were more appropriately addressed through amici curiae status." (577) The Ninth Circuit reviewed the district court's denial of the Cities' motion to intervene as of right de novo and reviewed the district court's determination concerning whether the motions were timely for an abuse of discretion. The court relied on United States v. Washington, (578) which held that a "court must grant a motion to intervene [as of right] 'if four criteria are met: timeliness, an interest relating to the subject of the litigation, practical impairment of an interest of the party seeking intervention if intervention is not granted, and inadequate representation by the parties to the action.'" (579)

The Ninth Circuit focused on three factors to determine whether the motion to intervene was timely. The court considered "the stage of the proceeding," the potential "prejudice to other parties," and "the reason for and length of the delay." (580) The Ninth Circuit determined that the Cities' motion to intervene was entered late in the proceedings and the fact that the parties had settled, the litigation had begun six years earlier, and the Cities moved to intervene "on the same day DTSC moved for judicial approval of the consent decree" (581) weighed against the Cities. In addition, the Ninth Circuit concluded that the district court did not abuse its discretion in finding that the other parties would be prejudiced by the Cities' late intervention. Furthermore, the Ninth Circuit explained that because the first two factors weighed against the Cities, the Cities would have to clearly explain the reason for their delay. The court concluded that the Cities "had reason to know that negotiations might produce a settlement decree to their detriment." (582) In support of this finding, the court cited the Cities' notification of many settlement discussions and the evidence that the oil companies warned the Cities that they might be linked to the landfill. Therefore, the Ninth Circuit held that the district court's denial of the Cities' motions to intervene because of untimeliness was not an abuse of discretion. (583) Because the Ninth Circuit found that the Cities' motion to intervene was untimely, it did not consider the other factors set forth in United States v. Washington. (584)

Regarding the Cities' appeal of the district court's approval of the consent decree, the Ninth Circuit held that the Cities could not appeal the district court's approval of the consent decree because the "Cities [were] not parties to this litigation and [did] not assert any extraordinary circumstances...." (585) The Ninth Circuit held that the divestment rule prevented it from considering the Cities' appeal of the district court's jurisdiction to approve the consent decree. (586) Thus, the Ninth Circuit held that the Cities' motion to intervene was appropriately denied by the district court and the Cities could not appeal the court's approval of the consent decree.

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

7. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9th Cir. 2003).

At issue in this case was an appeal by the Tahoe-Sierra Preservation Council, 243 California plaintiffs, and 9 Nevada plaintiffs (Association) of a district court's dismissal of its case against the Tahoe Regional Planning Agency (TRPA). Specifically, the Association's challenges arose from TRPA's issuance of a regional plan in 1987 that formed an Individual Parcel Evaluation System (IPES). Each of the plaintiffs' parcels received an IPES score in either 1987, 1988, or 1989 and no plaintiff was challenging their scores in this matter. The IPES system also established a pass-fail line based on a determined score. Any parcel receiving a score above the line was eligible to submit an application for development. The plan then allowed TRPA to choose three hundred applications each year to whom it would award development permits. The IPES system also included a variance for those parcels that had scores within ten percent of the pass-fail line. These parcels could be eligible to submit an application for development if they completed a water quality mitigation project or paid a mitigation fee.

The IPES system did not fix the score for the pass-fail line because the 1987 plan required TRPA to recalculate the line each year. In 1999, the Agency reset the line in Nevada for two affected counties and it retained the line in California for two affected counties. TRPA made these adjustments according to the formula set forth in the initial 1987 plan.

This litigation dates back to July 1, 1987. In 1991 and 1992, the Association filed complaints against the TRPA alleging takings of private property without just compensation because the 1987 plan prohibited development for property with scores below the IPES line. These complaints were consolidated by the district court and the court dismissed the complaints because they were barred by the statute of limitations. The Association continued to litigate the issue concerning the statute of limitations for six years. Finally, the district court applied the state personal injury statutes and dismissed the complaints as being time barred. The Ninth Circuit affirmed that dismissal.

The current action involved a new complaint from the Association, of which all individual plaintiffs were members. The Association asserted that the 1987 plan implemented between 1987 and the present caused unconstitutional takings. In addition, the Association alleged that the Agency's 1999 decision to maintain the IPES pass-fall line was improper. With respect to this new complaint, the district court considered three groups of plaintiffs. The court first considered the property owners in stream environment zones (SEZ plaintiffs). With respect to these plaintiffs, the court found that their claim accrued in 1989 when they were notified of their land classification, an IPES score of zero. In addition, the court considered the property owners whose land fell below the IPES pass-fail line (IPES plaintiffs). With respect to these plaintiffs, the court found that their claims accrued in 1990 because the equation to adjust the line was fixed at the time. Therefore, the Association's new complaint was barred by the statute of limitations. Finally, the court considered the plaintiffs whose land score fell within ten percent of the pass-fail line (Ten Percent plaintiffs). With respect to these plaintiffs, the court concluded that if their claim was a facial challenge it would be barred by the statute of limitations; however, if their claim was an as-applied challenge, then their claim would be unripe. The court dismissed the Association's equal protection claim as time barred.

The Ninth Circuit affirmed the district court; however, it applied the doctrines of res judicata and ripeness to affirm the dismissal of the claims. The court explained that the doctrine of res judicata would apply if there was "'(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.'" (587) Considering the fast requirement, whether there was an identity of claims, the court explained that if "'the same transactional nucleus of facts'" (588) governed the claims then there would be identity of claims. The court noted that in its earlier litigation the Association protested the SEZ plaintiffs' land scores and the IPES pass-fail line, which were implemented pursuant to the 1987 plan, and which were the subject of the Association appeal. Therefore, the Association's claims arose out of the same nucleus of facts and any of them could have been asserted in previous lawsuits. The court explained that the plan's factual and legal parts were fixed in 1987 and that TRPA's actions of line setting in 1999 were nondiscretionary and involved no new set of facts.

With respect to the final judgment on the merits requirement, the Ninth Circuit concluded that "a dismissal on statute of limitations grounds [was] a judgment on the merits." (589) With respect to the requirement that there be privity between the parties, the court noted that several of the same parties were participants in this suit as had participated in the earlier suit. For example, the Association, thirty-three of the California plaintiffs, and three of the Nevada plaintiffs were the same. Concerning the other plaintiffs, the court explained that there must be a sufficiently close relationship between the initial plaintiffs and the current plaintiffs for there to be privity. The court explained that an organization or unincorporated association could create privity. The court found that the Association adequately represented the interests of its members, that the Association had the authority to bring claims on behalf of its members, and that the Association had defended vigorously for its members for a long period of time. In addition, the court explained that if
   individual members of the Association were not bound by the
   result of the former litigation, the organization would be free
   to attack the judgment ad infinitum by arranging for successive
   actions by different sets of individual member plaintiffs,
   leaving [TRPA's] capacity to regulate the Tahoe properties
   perpetually in flux. (590)


Therefore, the Ninth Circuit held that the SEZ and IPES plaintiffs' claims were barred by the doctrine of res judicata.

The court then considered the claims of the Ten Percent plaintiffs. The court explained that a facial challenge by these plaintiffs would be barred by res judicata because the claims involved the same mitigation program that was included in the 1987 plan, and therefore, the prior litigation could have addressed these claims. However, with respect to an as-applied challenge, the court found that the plaintiffs' claims were not ripe because none of the member plaintiffs had attempted to pursue the mitigation options that were set forth in the plan for those parcels whose scores fell within ten percent of IPES pass-fail line. Thus, the court explained that it could not evaluate whether this restriction was unconstitutional without a final decision with the regulation applied. Therefore, the Ninth Circuit held that the Ten Percent plaintiffs' claims were unripe.

B. Standing and Mootness

1. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002), supra Part II.E.

2. Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166 (9th Cir. 2002), supra Part II.A.

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

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

5. Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9th Cir. 2003), infra Part V.D.

C. Ripeness

1. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002), supra Part I.E.

2 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064 (9th Cir. 2003), supra Part V.A.

D. Administrative Law

1. Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), cert. denied, 123 S. Ct. 2573 (2003), supra Part I.E.

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

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

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

5. Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002).

The Bureau of Land Management (BLM), individual ranchers, and Owyhee Resource Area Permittees (ORAP), a cattle rancher organization, appealed the district court's order of a permanent injunction requiring environmental review of sixty-eight grazing permits in accordance with the National Environmental Policy Act (NEPA), (591) scheduling the re-issuance of the permits, and creating interim grazing conditions in the Owyhee Resource Area. In 1997, after changes to BLM regulations, the agency issued sixty-eight grazing permits, relying on a 1981 Environmental Impact Statement (EIS) to comply with NEPA. Idaho Watersheds Project and Committee for Idaho's High Desert sued BLM in district court. The district court found that this sixteen-year old EIS was inadequate to constitute the necessary "hard look" as required by NEPA (592) and imposed the injunction. On appeal to the Ninth Circuit, BLM, the individual ranchers, and ORAP contested issues surrounding the injunction and the court's jurisdiction. The Ninth Circuit found that it did have jurisdiction and affirmed the district court's permanent injunction.

The Ninth Circuit first responded to the environmental groups' challenge that the court did not have jurisdiction over the appeal because the partial summary judgment was not a final order. The court found that it had jurisdiction to hear the appeal because it could review the injunctive order and "28 U.S.C. [section] 1292(a)(1) confers jurisdiction not only over orders concerning injunctions, but also over matters inextricably bound up with the injunctive order." (593) Because the district court made the necessary reviewability decisions before reaching the injunctive relief, those decisions were "inextricably bound up" with the injunctive relief and therefore were appealable. (594)

Second, the court addressed BLM's and the ranchers' claim that the district court erred in allowing judicial review because the environmental groups had failed to exhaust their administrative remedies as required by the Administrative Procedure Act (APA). (595) Under the APA, (596) the Ninth Circuit examined whether the BLM's regulations "effectively render inoperative the challenged decision pending appeal." (597) BLM regulations allowed parties to ask for a stay pending administrative appeal, but the court explained that if the stay was rejected then a federal court could review the decision. In addition, even if BLM stayed the decision, the Ninth Circuit found that two possible exceptions to the stay of grazing essentially did not "render inoperative" the decision. (598) First, if grazing had not been authorized in the year before the challenged year, then the challenged decision continued to be in effect despite the stay. (599) The court held that this was an obvious continuation of the decision. Second, if grazing had been authorized in the year before the challenged year, then gazing would continue at that previous year's level. (600) The court found that, in this case, this second exception would allow for grazing practices that the BLM had already determined were harmful to the environment. Additionally, under the second exception to the stay provision these harmful practices would be allowed to continue for as long as the administrative appeal persisted. Thus, the second exception also did not make inoperative the actions that the environmental groups were challenging. Because the court found the facts of this case fit either of the two exceptions to the stay provision, the granting of a stay would not "render inoperative" the decision, and exhaustion of administrative remedies was not required.

Third, an individual rancher, Petan, argued that the district court should not have reviewed the case because BLM's decisions were not final. The Ninth Circuit found that this argument confused exhaustion and finality. Following the distinction made in Darby v. Cisneros (601) that a final decision involves a "definitive position ... that inflicts an actual, concrete injury," the court found that a "definitive position" was reached in the issuing of the sixty-eight permits. (602)

Fourth, the ranchers argued that one of the environmental groups waived its claims by filing and then dismissing its administrative appeal. Although the other environmental group did not appeal within the agency and therefore the decision in the case would not be affected by the Ninth Circuit's decision, the court found that the filing and subsequent dismissal did not affect reviewability. Distinguishing another Ninth Circuit case, Acura of Bellevue v. Reich, (603) the court found that, because the appeal had been dismissed, the appeal did not "render[] the initial agency decision nonfinal for purposes of the APA." (604)

Fifth, ten ranchers and ORAP argued that because the ranchers had administrative appeals pending on the issue of whether the permits were too restrictive when the environmental groups filed in federal court, the agency actions were not final under the APA. (605) However, the ranchers did not raise the argument below and therefore waived it. To avoid the waiver issue, they framed their argument as one of subject matter jurisdiction. They argued that without a final agency action, the court lacked jurisdiction. (606) The Ninth Circuit found that the absence of APA requirements, like finality, did not deprive the court of subject matter jurisdiction because 28 U.S.C. section 1331 (607) grants subject matter jurisdiction, not the APA. Because it was not a question of subject matter jurisdiction, the ranchers had waived their finality argument.

Sixth, the ranchers contested the district court's issuance of interim injunctive measures without an evidentiary hearing. The Ninth Circuit distinguished the case law that supported the ranchers' argument (608) because the district court's interim injunction was significantly different from other permanent injunctions that do require evidentiary hearings. The court found that, in this case, the district court implemented the injunctive measures suggested by BLM as opposed to those put forth by the environmental groups and the ranchers. Also, because the interim measures were temporary until a permanent injunction could be developed through extensive fact finding, an extensive evidentiary hearing for interim measures would have rendered their intermediary nature useless.

Finally, ORAP claimed that the district court made errors in its issuance of the injunction. The Ninth Circuit rejected the argument that the district court had incorrectly used a mandamus standard instead of a traditional injunctive standard because the remedy satisfied both standards. The court found that the district court had correctly applied the mandamus standard, deferring to BLM's expertise in fashioning an injunction. In addition, the Ninth Circuit found that the district court had appropriately "balance[d] the equities" and given "due regard to the public interest" under the traditional injunction standard because the district court took a middle ground in designing a remedy. (609) Then the Ninth Circuit found that the district court made sufficient findings of fact and conclusions of law because its findings were clear enough for the Ninth Circuit to determine the basis of the decision. The Ninth Circuit found that the court had neither abused its discretion nor made the terms of the injunction too vague because the district court had allowed BLM to construct the terms of the injunction and it seemed clear on its face. Thus, the Ninth Circuit affirmed the district court's "fair and balanced interim remedy." (610)

6. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2003), supra II.C.

7. Southwest Center for Biological Diversity v. United States Department of Agriculture, 314 F.3d 1060 (9th Cir. 2002).

The issue in this case was whether a statute could be applied to an action pending when that statute was enacted. The statute in question was the National Parks Omnibus Management Act (the Act), (611) specifically section 207, (612) which created an exemption from the Freedom of Information Act (FOIA). (613) The district court held that section 207 applied to the pending action. The issue arose in March 1998, when the Southwest Center for Biological Diversity and Robin Silver, M.D. (collectively the Center) filed a FOIA request with the United States Forest Service (USFS) for information regarding the northern goshawk (Accipiter gentilis). After receiving no response from USFS, the Center brought an action to compel the release of the information. USFS subsequently delivered a portion of the information but claimed exemption under FOIA for the remainder of the information.

While the action was pending, Congress passed the Act. Section 207 of the Act states that "[i]nformation concerning the nature and specific location of a National Park System resource which is endangered, threatened, [or] rare ... within units of the National Park System ... may be withheld from the public in response to a request under [FOIA]." (614) The Center argued that section 207 could not be applied in this action because its action was pending when the Act was enacted. The Ninth Circuit reviewed the issue de novo.

The Ninth Circuit balanced the rule that a court should apply the law in effect at the time of a decision with the rule declaring a presumption against statutory retroactivity. In referring to the test set forth in Landgraf v. USI Film Products, (615) the court first addressed whether Congress specified if the statute should apply. The Ninth Circuit determined that Congress had not specified whether the statute should apply; therefore it considered the second part of the test, which applies the statute unless it would have an "impermissible retroactive effect." (616) The court found that application of the statute would not have an impermissible retroactive effect on the Center because the Center had not taken "action in reliance on prior law." (617) Thus, based on the Landgraf test, the Ninth Circuit affirmed the district court decision to apply the statute to the pending action.

8. Montana Wilderness Ass'n. v. United States Forest Service, 314 F.3d 1146 (9tb Cir. 2003).

The United States Forest Service (USFS) and a group of intervenors (618) appealed a district court decision in favor of Montana Wilderness Association (Wilderness). Wilderness had brought a case against USFS claiming that it had failed to maintain seven Wilderness Study Areas as required by the Montana Wilderness Study Act (Study Act). (619) The district court determined that it had subject matter jurisdiction under the Administrative Procedure Act (APA) (620) and granted summary judgment for Wilderness. Under section 706(2), "arbitrary and capricious" review, (621) the Ninth Circuit found that the district court did not have subject matter jurisdiction and reversed. However, the Ninth Circuit affirmed subject matter jurisdiction under "failure to act" review, section 706(1) of the APA, (622) but reversed the summary judgment and remanded for trial because an issue of material fact remained.

Under the Study Act, passed in 1977, USFS must "administer specific Wilderness Study Areas ... 'to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.'" (623) Wilderness claimed that USFS violated the Study Act by constructing and maintaining motorized vehicle trails in the Wilderness Study Areas and for not preventing an increase in motorized vehicle use since 1977.

The Ninth Circuit first considered Wilderness's claim under section 706(2) of the APA which "authorizes courts to 'hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or 'short of statutory right.'" (624) The court found that first Wilderness had to show that the maintenance of trails was a final agency action to establish subject matter jurisdiction. (625) However, the court decided that trail maintenance was not a final agency action because it did not "'mark the consummation of [USFS's] decision making process.'" (626) In particular, the court looked at legislative history that suggested that travel management and forest plans for Wilderness Study Areas were the final agency action and trail maintenance was only "an interim aspect of the planning process" of the plans.(627) Also, the court found that trail maintenance did not fit into any categories of "agency action" under the APA. (628)

The Ninth Circuit next examined whether there was subject matter under section 706(1) of the APA, which "authorizes judicial review to 'compel agency action unlawfully withheld or unreasonably delayed.'" (629) USFS relied on the Ninth Circuit's decision in ONRC Action v. Bureau of Land Management (630) to support the argument that USFS did not have a clear statutory duty under the Study Act and that its duties were discretionary. However, the Ninth Circuit found that the Study Act provided a clear, mandatory duty "to 'maintain' wilderness character and potential for inclusion in the Wilderness System." (631)

Next, USFS argued that section 706(1) review is allowed "'only where there has been a genuine failure to act'" (632) under the Ninth Circuit's Ecology Center, Inc. v. United States Forest Service. (633) However, the court found that the record in the case before it showed that USFS did not "perform[] its obligations in an extensive and detailed manner as it did in Ecology Center." (634) In Ecology Center, USFS had a duty to monitor and there was evidence that USFS had acted to comply with that duty. However, the duty in the current case was a "specified goal," and USFS had not "assess[ed] whether wilderness character and potential had actually been maintained." (635) It was not enough that some of USFS's acts were done to address the Study Act. Therefore the court found that there was subject matter jurisdiction under section 706(1) of the APA.

The Ninth Circuit clarified that the "clear statutory duty" was not to "consider the impact of its decisions" on the Wilderness Study Areas, as stated by the district court. (636) Instead the Ninth Circuit found that the duty was "to maintain the wilderness character and potential." (637) Thus, because the record suggested a genuine issue of fact as to whether USFS maintained the Wilderness Study Areas in such a fashion, the court reversed the district court's summary judgment, vacated the injunction, and remanded for trial. (638)

9. Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9th Cir. 2003).

Two environmental organizations brought suit against the National Marine Fisheries Service (NMFS), (639) challenging its issuance of specifications and management measures for 2001 for the Pacific Coast Groundfish Fisheries without meeting notice and comment requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) (640) and the Administrative Procedure Act (APA). (641) The district court found that NMFS was required to go through notice and comment under both the Magnuson Act and the APA because it had not shown good cause why the notice and comment procedures should not be considered, and therefore did not warrant the statutory exemption. NMFS appealed, and the Ninth Circuit held that NMFS did not show the exigency required to meet the good cause exception to the notice and comment requirements of the APA. Thus, the Ninth Circuit found that notice and comment was required under the APA and determined that it did not need to decide whether notice and comment was required under the Magnuson Act.

The challenged regulations were specifications for harvest levels of major fish species and management measures for 2001, originally created by the Pacific Fishery Management Council (Pacific Council). (642) Under the Magnuson Act, the Pacific Council creates and revises fishery management plans (FMPs) for Washington, Oregon, California, and Idaho. (643) The Secretary of Commerce reviews the FMPs and amendments and then places them in the Federal Register. (644) The Pacific Council's Pacific Coast Groundfish FMP--amended in 1990 (through the notice and comment process)--outlined a procedure for the annual management cycle. Under this procedure, the Pacific Council would first gather information throughout the year and hold a public meeting. Then the Council would create recommendations based on the hearings and information gathered, notify the public, and hold a second meeting where it would consider public testimony. Finally, it would adopt regulations on specifications and management methods. After regulations went through this process, the Secretary of Commerce would review the regulations and publish them in the Federal Register. (645) The Secretary waived notice and comment for 2001 and prior years for good cause, claiming that the process the regulation went through at the Council was sufficient and that delay of implementation of these regulations could have harmed the stock and interfered with the timing of the regulations.

The first issue in dispute was whether the regulations were "proposed regulations" subject to the Magnuson Act. (646) However, because both parties agreed that the regulations were subject to the notice and comment requirements of the APA, (647) barring any exception, the court did not address the Magnuson Act dispute. Instead, the court focused on whether NMFS properly invoked the APA's good cause exception. (648)

First, NMFS argued that the issue of whether it properly invoked the good cause exception in 2001 was moot because new specifications and management measures had been adopted. The Ninth Circuit determined that this case fell into the "capable of repetition, yet evading review" exception to mootness because "(1) the duration of the challenged action [was] too short to allow full litigation before it cease[d], and (2) there [was] a reasonable expectation that the plaintiffs [would] be subjected to it again." (649) In particular, the yearly update of the regulation was too short a time for full litigation. In addition, the Groundfish FMP "anticipate[d] invocation of the good cause exception for every set of specifications and management measures," and NMFS had used the exception in this context for over ten years. (650) Thus, the court held that the case was not moot.

Second, NMFS argued that the district court wrongly required it to undergo notice and comment under the APA because its showing of good cause was adequate. The Ninth Circuit found that the proper use of the good cause exception depends on the totality of the circumstances, and that the exception was limited to instances where "compliance would interfere with the agency's ability to carry out its mission." (651) The court found that the Pacific Council's procedures did not allow the public to make comments to NMFS, the final decision maker. Then, the court noted that NMFS did not "engage in any context-specific analysis of the circumstances giving rise to good cause in 2001," and instead repeated the same reasons for the lack of notice and comment as it had in previous years. (652) In addition, the court looked at precedent that required notice of weekly meetings (653) and found that time limitations for annual regulations were not sufficient grounds to invoke the good cause exception in this case. Therefore, the court held that NMFS did not make a sufficient showing of good cause. However, the court left open the possibility that NMFS could invoke the good cause exception in subsequent years if the specific circumstances of the year were addressed in the invocation. Thus, while the court affirmed the district court's decision finding that NMFS failed to comply with the APA, it also vacated the ruling that all future specifications and management measures must undergo notice and comment.

10. Wilderness Society v. United States Fish and Wildlife Service, 316 F.3d 913 (9th Cir. 2003), supra Part II.B.

11. Environmental Defense Center, Inc. v. United States Environmental Protection Agency, 319 F.3d 398 (9th Cir. 2003), supra Part I.B.

E. Attorney Fees

1. Native Village of Quinhagak v. United States, 307 F.3d 1073; (9th Cir. 2002), supra Part IV.

F. Preemption

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

Two insurers, Fireman's Fund Insurance Company (Fireman's Fund), and Unigard Insurance and Unigard Security Insurance Companies (Unigard), filed separate lawsuits against the City of Lodi, California (Lodi) and various public officials. The insurance companies claimed that a municipal ordinance, called the Comprehensive Municipal Environmental Response and Liability Ordinance (MERLO), violated the state and federal constitutions. According to the appellants, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) (654) preempted MERLO, as did various state laws such as the California Carpenter-Presley-Tanner Hazardous Substance Account Act (HSAA). (655) The district court, on motions to dismiss and for summary judgment, found in favor of Lodi on the federal claim, abstained from the state claim in both cases, and dismissed the official capacity claims against the individual defendants due to duplication. The appeal was consolidated, and the Ninth Circuit reversed the district court's abstention and affirmed that MERLO was not preempted in general, but held that particular sections of the ordinance were preempted by state and federal law. In addition, the appeals court reinstated the official capacity claims.

The lawsuit arose when California's Department of Toxic Substances Control (DTSC) (656) investigated and eventually pinpointed four businesses in Lodi, two of which were insured by the insurance companies, as the possible sources of a carcinogen, tetrachloroethylene (PCE), that had contaminated the city's groundwater. The DTSC listed Lodi's groundwater site as a hazardous waste site, which triggered California's HSAA. (657) Subsequently, DTSC began an administrative action against Lodi and other potentially responsible parties (PRPs). Eventually, Lodi and DTSC entered into an agreement to pursue jointly a solution to the contamination. Pursuant to this agreement, Lodi adopted MERLO.

On appeal, the Ninth Circuit reviewed the district court's decision de novo. In reviewing the district court's abstention from deciding the state preemption claims, the Ninth Circuit examined the three factors from Railroad Commission of Texas v. Pullman Co. (658) These factors are 1) whether there is a "'sensitive area of social policy'" best addressed by the state court, (659) 2) whether a decision by the state would prevent the need for a decision on federal constitutional law, and 3) whether it was unclear how the state court would decide the determinative issue.

On the first factor, the Ninth Circuit determined that, despite the seriousness of the issue to the locality, the issue of hazardous waste remediation was not one that the states should address alone. The court pointed to CERLCA's statutory scheme that "envisioned a partnership between various levels of government" to deal with hazardous waste. (660) Then, skipping the second factor, the court found that under the third factor the proper resolution of the issue of preemption in tiffs case was predictable. The court viewed MERLO as being generally consistent with state law, and even if parts of it were inconsistent the remainder would stay in effect. Thus, the federal court's obligation to consider the federal claims would remain. Therefore, the Ninth Circuit held that the district court did not have discretion to abstain from deciding the state constitutional issues.

Next, the Ninth Circuit evaluated the federal and state preemption claims simultaneously. The court considered whether the federal and/or state laws, specifically CERCLA and HSAA, preempted MERLO under three prongs: 1) whether there was field preemption because there were other laws that were supreme in the field of hazardous waste; 2) whether there was conflict preemption because compliance with both laws would have been physically impossible; and 3) under state law, whether MERLO was duplicative.

On the first prong, the field of hazardous waste regulation, the insurance companies argued that, even though the Ninth Circuit had previously held that CERCLA did not foreclose other hazardous waste laws, (661) the combination of CERCLA and HSAA occupied the entire field. The court found this argument contrary to the Supreme Court's decision in Wisconsin Public Intervenor v. Mortier, (662) which held that a state's omission of reference to state subdivisions in assigning regulatory authority did not require preemption of local laws, but instead gave the state "absolute discretion" in assigning power. (663) Therefore, because CERCLA contains savings clauses, which give states the power to enact supplemental legislation, and because the California's constitution and other laws, including HSAA, contemplate the enactment of local environmental laws, the court found that local ordinances were authorized implicitly. In addition, the court found that CERCLA explicitly mentioned local governmental action in other provisions, and therefore, without any stronger indication from Congress, the court held that there was no field preemption.

For the second prong of preemption, conflict preemption, the insurance companies asserted that seven particular sections of MERLO conflicted with either CERCLA or HSAA. These provisions 1) allowed Lodi to be compensated for natural resource damages, (664) 2) established a general liability scheme whereby the PRPs could be found joint and severely liable but could not have a contribution claim against Lodi, (665) 3) created a "clear and convincing" burden of proof for a liability defense, (666) 4) established a different standard for cleanup than in the National Contingency Plan, (667) 5) established the ability for Lodi to recover attorney fees and other costs, (668) 6) authorized information gathering, (669) and 7) permitted Lodi to bring direct actions against insurers. (670) The court found that some of these provisions were preempted by either state or federal law and that some were not.

First, the court found that MERLO's provision authorizing Lodi to recover for natural damages (671) was not preempted because neither CERCLA nor HSAA abrogated Lodi's proprietary interest in natural resources or its ability to protect these resources by recovering damages.

Second, the Ninth Circuit held that the scheme allowing for recovery of cleanup costs and the possible imposition of joint and several liability on PRPs without the ability to likewise impose liability upon the City to pay its fair costs (672) was preempted in part if Lodi was also a PRP. After looking at CERCLA and HSAA, which both allow contribution claims, the Ninth Circuit found that if the district court on remand found that Lodi was a PRP, then the provisions of MERLO preventing contribution claims against the city would be preempted. Thus, the insurance companies could sue the city for contribution. Also, under CERCLA's statutory scheme, one PRP cannot bring a cost recovery action that would impose joint and several liability against another PRP. Therefore, the Ninth Circuit held that if Lodi were a PRP, then MERLO's scheme would be preempted to the extent that it protects Lodi from liability, but if Lodi were not found to be a PRP then MERLO would not be preempted.

Third, under MERLO the PRP's burden of proof to demonstrate that the harm is divisible is by clear and convincing evidence, (673) while under CERCLA and HSAA the burden is only by a preponderance of evidence. (674) The Ninth Circuit held that MERLO's burden of proof provision was preempted by the state and federal laws, because allowing cities to create their own more burdensome standards "would foster uncertainty and discourage site cleanup," thereby undermining the goals Congress set forth in CERCLA. (675)

Fourth, the court addressed the argument that MERLO's cleanup standard provision (676) was preempted because it allowed Lodi to have the presumption of consistency when trying to prove that its cleanup process was consistent with the National Contingency Plan (NCP) of CERCLA or HSAA, (677) a presumption usually reserved for federal, state, or tribal governments. The court rejected this argument, holding that MERLO's provision was not preempted because Lodi was acting according to its agreement with DTSC, a state agency that received the presumption of consistency, and that agreement provided for DTSC oversight. In addition, the insurance companies argued that Lodi could have required remediation that was more or less strict than the NCP, and therefore MERLO's provision was preempted. The Ninth Circuit found that MERLO's provision was not, in fact, less strict than the NCP with regard to the Lodi site and was not in conflict with CERCLA or HSAA. But, the court found that MERLO's provision was preempted to the extent that it allowed Lodi to be stricter than the NCP because of the uncertainty and discouragement that would result.

Fifth, the court held that if Lodi was a PRP, then it could not receive attorney fees because Lodi cannot "legislate for itself a litigation advantage." (678) Thus, the MERLO attorney fee provision (679) would be preempted. However, if Lodi was not a PRP then it could provide for attorney fees in its municipal laws. Nevertheless, Lodi did not receive authority from CERCLA to receive "all costs," (680) as states do, because of its agreement with DTSC, a state agency. The Ninth Circuit remanded to the district court to decide if Lodi was a PRP, and if so what costs would be allowed nonstate litigants under CERCLA's "necessary costs" provision (681) If the court determined that Lodi was not a PRP, it would need to determine which standard to use in deciding costs.

Sixth, the Ninth Circuit held that Lodi had "independent authority to promulgate information-gathering legislation pursuant to its traditional police powers" and that these powers did not conflict with CERCLA or HSAA. (682) Therefore MERLO's information gathering provision (683) was not preempted.

Seventh, the court found that MERLO's provision that allowed Lodi to initiate a direct action against a PRP insurer before receiving a final judgment against the insured PRP (684) was preempted by California insurance law. (685) While the plain language of the law did not require final judgment against the insured, the court was convinced by applicable case law (686) that direct action had to be delayed until final judgment.

The third prong of preemption, duplication, is based on state law and applied only to penal ordinances. In addition, duplication is only found when the ordinance is "coextensive with state law." (687) The court held that MERLO covered the same subject matter as HSAA, but was not coextensive. Therefore, MERLO was not preempted on the basis of duplication.

Finally, the court reversed the district court's decision to dismiss Fireman's Fund's claims against three individuals in their official capacities. The court agreed with Fireman's Fund that the officers were "'classic Ex parte Young defendants'" and that the claims were necessary to stop any Eleventh Amendment defense by Lodi. (688)

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

Bird conservation organizations and wildlife trappers challenged a California voter-adopted ban on the use of steel-jawed leghold animal traps by anyone including federal employees. The district court dismissed the trappers' claims for lack of standing and then held that the ban was preempted by the National Wildlife Refuge System Improvement Act (NWRSIA), (689) the Endangered Species Act (ESA), (690) and the Migratory Bird Treaty Act (MBTA). (691) The state of California, sponsors of the legislation, and the trappers appealed. The Ninth Circuit affirmed in part, reversed in part, and remanded.

Historically, several federal agencies used leghold traps within California to protect property under the Animal Damage Control Act (ADCA), (692) endangered species under the ESA, bird species under the MTBA, and for conservation practices within the National Wildlife Refuge System under the NWRSIA. In November 1998, California voters passed Proposition 4, legislation that included a ban on the use of leghold animal traps to capture wildlife within the state. (693) The California Department of Fish and Game instructed that the ban should be followed even when it conflicted with existing regulations. Upon passage of Proposition 4, the United States Fish and Wildlife Service continued to use the traps while other federal agencies removed all such traps. Five nonprofit organizations concerned with the conservation of birds (Audubon) challenged the ban on the basis that the ESA, the MBTA, and the NWRSIA preempted portions of the state legislation. Trappers and trapper organizations intervened. The district court issued a temporary restraining order and preliminary declaratory order stating that section 3003.1(c) did not apply to the use of traps by federal agencies or employees on federal or nonfederal land within the state if the traps were used for conservation purposes under the ESA. In its final order, the district court granted the plaintiffs' motion for summary judgment on the basis that section 3003.l(c) violated the NWRSIA and was preempted under the ESA and the MBTA, but refused to grant injunctive relief on the basis that there was no threat of enforcement. The district court dismissed the trappers' claim with prejudice for lack of standing. The State, sponsors of Proposition 4, and the trappers appealed.

On appeal, California claimed that the Eleventh Amendment (694) granted the state immunity from suit because there was no imminent threat of harm in this case. (695) The Ninth Circuit refused to read a ripeness requirement into the Ex parte Young (696) exception to sovereign immunity, but nonetheless dismissed claims against the state agencies on the basis of sovereign immunity, and against Governor Davis and the Secretary of Resources for lack of authority to enforce Proposition 4. Further, the Ninth Circuit held that the Eleventh Amendment did not bar declaratory relief, (697) and decided that because the Director of the California Department of Fish and Game has enforcement authority under Proposition 4, the director was subject to suit under the Ex parte Young exception to sovereign immunity.

The Ninth Circuit affirmed Audubon's standing, relying on the three-part test laid out in Lujan v. Defenders of Wildlife (698) requiring injury in fact, connection between the injury and the statute, and redressability. (699) Audubon demonstrated clear injury to aesthetic, recreational, and scientific interests directly traceable to Proposition 4, and established redressabilty by highlighting the federal agencies' reimplementation of leghold trapping after the district court granted the preliminary injunction. The Ninth Circuit also agreed with the district court that the "real threat of loss of birds" clearly demonstrated the claim was ripe. (700) Moreover the court determined the issue was "prudentially ripe" because without intervention, predators would diminish bird populations, and state actions to enforce Proposition 4 would not address Audubon's federal preemption claims. Finally, the court affirmed the district court's determination that Audubon's claim was not moot because, while an injunction had been granted, it was preliminary and offered only temporary relief.

The district court found that section 3003.1(c) of Proposition 4 was preempted by the ESA on the basis of the Supremacy Clause. (701) The ESA allows the use of all methods necessary for conservation of endangered or threatened species. (702) The Ninth Circuit rejected the State's position that the regulation should not be read to void state conservatory regulations because it included language indicating section 3003.1(c) would not apply to conservation activities. The regulation mentioned only state activities, that language did not create an exception for federal conservation activities. Therefore, the court affirmed that the ban on trapping which included federal agencies contradicted the ESA, and thus the ESA preempted section 3003.1 (c).

The district court found that the MBTA preempted Proposition 4, but the Ninth Circuit declined to address this issue because neither party argued it on appeal. The district court allowed Audubon to add the NWRSIA claim a year into the suit, and the Ninth Circuit agreed that the district court did not abuse its discretion in allowing the additional claim because the issue of preemption was not new and did not require additional discovery. The district court then held that the NWRSIA preempted section 3003.1(c) and that the regulation violated the Property Clause of the Constitution. (703) On appeal, only the NWRSIA claim was challenged. The Ninth Circuit, drawing on the reasoning of the Tenth Circuit on the same issue, (704) found that when an actual conflict occurs between state and federal policies under the NWRSIA, the state law is preempted. Based on this reasoning, the court upheld the finding by the district court that NWRSIA preempted section 3003.1(c) of Proposition 4.

The district court dismissed the trappers' claims for failure to state a claim. (705) The Ninth Circuit disagreed with the district court, finding that the trappers had standing and a ripe claim. However, the Ninth Circuit agreed that the trappers' constitutional claims failed on the merits. First, the trappers challenged Proposition 4 as discriminatory under the Commerce Clause. (706) Relying on the plain language of Proposition 4, the Ninth Circuit determined that it applied only to furs trapped within the state and thus did not discriminate against out of state trappers. The court also found that Proposition 4 did not burden interstate commerce because the legislation did not impose greater burdens on citizens of other states as compared to Californians. Second, the trappers challenged the ballot representation of Proposition 4 as a violation of due process. Again, the Ninth Circuit denied their claim as a matter of law because the ballot material was not misleading and did not rise to a level justifying relief. However, because the district court failed to address the trappers' preemption claim under the ESA or the ADCA, the Ninth Circuit remanded those issues to the district court for consideration.

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

Plaintiffs alleged that hazardous radioactive and nonradioactive substances produced by defendants, Boeing North American, Inc. and Rockwell International Corp., caused their illnesses. The specific issue on review was whether plaintiffs' claims were timely filed under California's statute of limitations. The plaintiffs were fifty-two individuals residing in the San Fernando or Simi Valley of California, who suffered various cancers and illnesses including: cancers of the thyroid, brain, cervix, breast, lung, ovaries, bladder, prostate, pancreas, and stomach; leukemia; lymphoma; hypothyroidism; infertility; and multiple chemical sensitivity sensory neuropathy. Defendants owned and operated the Rocketdyne facility, located near plaintiffs' residences. The Rocketdyne facility conducted testing of rocket and energy technologies involving various radioactive contaminants and nonradioactive hazardous chemicals.

In 1997, six plaintiffs filed a complaint alleging state tort claims and a claim under the Price-Anderson Act (707) alleging injuries from Rocketdyne's nuclear accidents. In June 1997, a number of plaintiffs joined the complaint; in December 1997, more plaintiffs joined the complaint; and in March 1998, a final group of plaintiffs joined the complaint. The plaintiffs claimed that they discovered a link between the Rocketdyne facility and an increased risk of cancer in a University of California, Los Angeles study released on September 11, 1997. Therefore, the plaintiffs claimed that the statute of limitations began to run in September 1997.

The district court granted the defendants' motion for summary judgment because it found that the California statute of limitations barred the plaintiffs' state law tort claims. In California, "a plaintiff has one year from the date of injury to bring a personal injury or wrongful death claim." (708) However, a court could apply the delayed discovery rule of California or of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (709) which does not impose a statute of limitations but imposes a standard for determining when the statute of limitations should toll.

The district court found that the federal CERCLA delayed-discovery rule and that of the state were the same. Thus, the district court held that the plaintiffs' claims were untimely because the "[p]laintiffs suspected or should have suspected the cause of their illnesses more than one year before they filed their claims." (710) In reversing the district court's finding, the Ninth Circuit explained that the federal and state standards were not the same.

The Ninth Circuit reviewed the district court's grant of defendants' summary judgment motion de novo. The Ninth Circuit found that CERCLA's discovery rule was not the same as the rule applied in California. The CERCLA rule required that for actual or constructive notice, a plaintiff must know "both the existence and the cause of his injury," (711) while the California rule required that a "plaintiff suspects or should suspect that her injury was caused by wrongdoing." (712) Thus, the court found that the federal rule was more generous and therefore preempted the state rule. In addition, the court explained that a plaintiff did not need a CERCLA claim for a court to apply the CERCLA rule. Thus, the Ninth Circuit held that the district court's grant of defendants' motion for summary judgment was improper. The court reasoned that the record did not support the district court's ruling that the only inference to be made was that the "[p]laintiffs knew or suspected the cause of their injuries more than one year before filing their claims." (713)

Instead, the Ninth Circuit applied a two-part test to determine when plaintiffs reasonably knew or should have known of their claim. The first part of the test inquired into when "a reasonable person in [p]laintiffs' situation would have been expected to inquire about the cause of his or her injury." (714) The second part of the test considered whether an inquiry (by a plaintiff on inquiry notice) "would have disclosed the nature and cause of plaintiffs injury so as to put him on notice of his claim." (715)

With respect to the first part of the test, the court considered whether there were a number of other potential causes of plaintiffs' injuries. For example, the Ninth Circuit explained that "'[t]here are many suspected causes of cancer, many of which are natural or non-negligent and would not give rise to a legal cause of action.'" (716) Thus, the court concluded that a determination that a reasonable person knew or should have known that their injuries were caused by the Rocketdyne facility depended on "whether a reasonable person would have inquired about the cause of his injury in light of public knowledge about the causes of cancer and other latent diseases, including publicity about the release of hazardous substance from the Rocketdyne facilities as well as other potential causes." (717)

In reaching its conclusion that the district court's grant of summary judgment was in error, the Ninth Circuit also considered what type of medical advice the plaintiffs were given with respect to the cause of their injuries. The court explained that plaintiffs' doctors never suggested to them that their injuries might have been caused by the Rocketdyne facility. Furthermore, the court considered the extent of publicity regarding other possible causes of plaintiffs injuries. The court reviewed articles submitted by plaintiffs detailing various warnings regarding potential causes of cancer. (718) Based on evidence submitted by the plaintiffs and the uncertainty surrounding the causes of cancer, the Ninth Circuit found that the district court erred in concluding that plaintiffs were on inquiry notice that the Rocketdyne facility caused their injuries.

In addition, the Ninth Circuit found that the district court's ruling was illogical because under the district court's reasoning a plaintiff would have to file lawsuits "against all suspected sources of chronic illness to prevent the running of the statute of limitations." (719) Furthermore, the court noted that the amount of publicity surrounding the Rocketdyne facility was not dispositive of the issue as to whether plaintiffs had inquiry notice of the Rocketdyne facility as to the cause of their injuries. Therefore, the Ninth Circuit found that the district court inappropriately made factual findings regarding the Rocketdyne publicity that should have been left to a jury.

Concerning part two of the test, "whether a reasonable inquiry would have put [the] [p]laintiffs on notice of their claim[,]" (720) the court considered that there was a wealth of complex and rapidly changing information surrounding the possible causes of cancer. Therefore, the Ninth Circuit explained that the plaintiffs were not in a position to discover what caused their cancer and that the plaintiffs had to rely on corporate or government research on the subject. Thus, the Ninth Circuit found that it was a question of fact to be decided by a jury whether plaintiffs could have discovered that the defendant's Rocketdyne facility and operations caused their injury prior to the release of the UCLA study despite being on inquiry notice. Thus, the Ninth Circuit reversed the district court's grant of summary judgment to the defendants with respect to the plaintiffs that joined the action after the release of the UCLA study.

With respect to the plaintiffs that joined the action before the release of the UCLA study, the Ninth Circuit affirmed the district court's grant of defendants' summary judgment motion. The court explained that the plaintiffs failed to provide evidence regarding how and when they had notice of their claims and therefore summary judgment was appropriate.

One of the judges of the Ninth Circuit panel concurred in part and dissented in part, concluding that there were no differences in the state standard and the federal standard with respect to application of the discovery rule. In addition, the dissent found that the available publicity regarding the Rocketdyne facility imputed knowledge to the plaintiffs. Therefore, the dissent would have affirmed the district court's grant of defendants' summary judgment motions against all plaintiffs.

G. Jurisdiction

1. ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137 (9th Cir. 2002).

ONRC Action and Klamath Forest Alliance (collectively ONRC) brought a citizen lawsuit against Columbia Plywood, Inc. (Columbia) under the Clean Water Act (CWA). (721) ONRC alleged that Columbia's National Pollution Discharge Elimination System (NPDES) permit was invalid because Columbia failed to renew it in a timely manner, and therefore was illegally releasing pollutants into the Klamath River. They alternatively argued that if Columbia's permit was valid originally, its failure to renew after five years invalidated it in 1994. Further, ONRC argued that the Department of Environmental Quality (DEQ) did not have the authority to renew the permit after the original period. The district court granted Columbia's motion for summary judgment on the renewal issue, stating that the DEQ had waived the renewal period and Columbia properly discharged pollutants under the shield of ORS 183.480(1). (722) The district court dismissed ONRC's alternative claims for lack of subject matter jurisdiction because ONRC failed to properly raise them in the required sixty-day citizen suit notice. Columbia filed a counterclaim for attorney fees, which the district court also dismissed. Both parties appealed.

The CWA requires a NPDES permit before an entity can discharge pollutants into a waterway. (723) Oregon's permit program is administered by the DEQ, which issued Columbia the original permit in 1984. Pursuant to Oregon Administrative Rule 340-045-0030(1), (724) Columbia was required to submit a renewal 180 days before the expiration of the permit in 1089. Under Oregon law, while a renewal application is pending, the entity has a continuing shield winch allows it to keep on discharging pollutants until the DEQ either approves or denies the renewal. (725) Although Columbia submitted a renewal application outside the 180-day period, DEQ accepted the application, and Columbia continued to discharge pollutants. At the time the suit was filed in 1997, the DEQ had yet to approve or deny the permit renewal.

The Ninth Circuit affirmed the district court's determination that Columbia's NPDES permit was valid because the DEQ waived the time limit, and that while awaiting renewal Columbia could continue discharging pollutants under the shield regulation. On appeal, the Ninth Circuit certified two questions to the Oregon Supreme Court: 1) whether DEQ had authority to accept permit renewals that do not meet the time guidelines, and 2) whether DEQ's extension of the permit beyond its original five year term was invalid due to an invalid waiver. The Oregon Supreme Court certified that "DEQ has the legal authority to accept and process permit renewal applications that do not meet the 180-day filing requirement in ... OAR 340-045-0030(1)." (726) Since it found the waiver valid, the Oregon Supreme Court did not reach the second certified question. Based on the Oregon Supreme Court's answer, the Ninth Circuit held that Columbia's renewal application was "timely," and therefore Columbia could avail itself of the continuing shield of section 183.430(1) of the Oregon Revised Statutes.

The Ninth Circuit then addressed ONRC's alternative claims that 1) DEQ does not have the authority to renew a NPDES permit beyond the original term and 2) Columbia was required to renew its renewal in 1994, five years after its first renewal application. The district court dismissed ONRC's alternative claims for lack of adequate notice under 40 C.F.R. section 135.3(a) because the notice was not "sufficiently specific." (727) Under the CWA, a citizen suit requires that sixty-day notice be given to the violator, the State, and the Environmental Protection Agency with "sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation." (728) The Ninth Circuit cited Hallstrom v. Tillamook County, (729) a United States Supreme Court case that required strict compliance with the notice provision for citizen suits. Based on this standard, the Ninth Circuit concluded that the notice in question was not sufficient to alert Columbia to these alternate claims, although it was sufficiently specific as to the theory that the permit application was invalid for being untimely. Finding that ONRC failed to give requisite notice for a citizen suit, a divided Ninth Circuit panel affirmed the district court's dismissal of the alternative claims for lack of subject matter jurisdiction.

Dissenting only on this last issue, Judge Reinhardt argued that ONRC gave Columbia sufficient notice and addressed the merits of the alternative claims. In support for his position, he cited the policy behind the notice requirement, stating that the wording of the notice alerted Columbia to ONRC's contention that it did not have a valid permit, and the alternative claims directly challenge that validity. (730) Having reached the claims, Judge Reinhardt would dismiss the first claim that Columbia was required to renew its permit, but reverse on the basis that the DEQ's failure to act for more than twelve years usurped the federal government's power to establish the term of a NPDES permit.

The Ninth Circuit also affirmed the district court's dismissal of Columbia's claim for attorney fees, determining that ONRC had filed a nonfrivolous complaint.

2. Cadillac Fairview/California, Inc. v. Dow Chemical Co., 299 F.3d 1019 (9th Cir. 2002), supra Part I.D.

3. Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002).

At issue in this case was the operation of the New Melones Unit of the Central Valley Project (Project) by the Bureau of Reclamation (Bureau). The Project "is the largest federal water management project in the United States," (731) and is located in the Central Valley Basin of California. The New Melones Unit of the project includes the New Melones Dam. The Bureau operates the "New Melones Unit pursuant to federal reclamation statutes as well as under four California water rights permits." (732) The permits authorized the Bureau to use the water in the New Melones reservoir in a variety of ways. The authorized uses included "power generation, consumptive use ... and the preservation of fish and wildlife." (733) One of the water rights permits authorized the Bureau to release water to maintain local fisheries downstream of the dam, and to limit the salinity of the water downstream by complying with a salinity standard.

In an effort to comply with the Central Valley Project Improvement Act, (734) the Bureau decided to divert water from the New Melones Reservoir for fishery habitat restoration. Although the statute did not require the Bureau to divert water from the New Melones Unit, the "Bureau exercised its discretion to divert water from that source." (735) The New Melones Interim Operations Plan, in operation at the time of this action, was adopted by the Bureau in 1999 and provided for "release of water from the New Melones Reservoir in April, May and October to supplement fishery flows." (736)

Four plaintiffs--two state agencies (the Central Delta Water Agency (CDWA) and the South Delta Water Agency) and two private parties (R.C. Farms, Inc. and Alexander Hildebrand)--brought suit against the Bureau alleging that the Bureau's operation of the New Melones Unit would fail to meet the salinity standard and would harm crops that depended on a source of suitable water to meet irrigation needs. The district court granted the Bureau's motion for summary judgment, finding that all the plaintiffs with the exception of intervenor plaintiff Stockton East Water District lacked standing. In addition, the district court found that the plaintiffs' claims were precluded. The district court subsequently allowed an interlocutory appeal.

The Ninth Circuit reversed the district court's grant of defendant's motion for summary judgment. The court considered the general principles of standing set forth by the United States Supreme Court in Lujan v. Defenders of Wildlife (737) in finding that the plaintiffs had standing. First, the "plaintiff[s] must have suffered an 'injury in fact.'" (738) Second, there must be a causal connection between the plaintiffs' injury and the defendant's conduct. Third, the relief sought must redress the plaintiffs' injury. The Ninth Circuit explained that at the summary judgment stage the plaintiff must raise "a genuine question of material fact as to the standing elements." (739)

Concerning the standing requirements, the Ninth Circuit found that the second and third elements were satisfied because violation of the salinity standard would be traceable to the Bureau's operation of the release of water and the plaintiffs would be redressed by the Bureau's compliance with the salinity standard. The court then considered whether the plaintiffs satisfied the first element. With regard to the individual plaintiffs, the court explained that a threatened injury may be sufficient to confer standing and that the focus should be on the injury to the plaintiff not the injury to the environment. The court concluded that the risk of plaintiffs' crops dying due to the Bureau's failure to meet the salinity standard was a threat of injury sufficient to confer standing. The court noted that it was not relying on the doctrine of recurring harm. In addition, the court noted that the plaintiffs' threatened injury was supported by modeling performed by the Bureau, which indicated that the salinity standard would be violated.

Concerning the agency plaintiffs, the Ninth Circuit explained that a public agency has standing if the challenged government action affects the performance of its duties. The court explained that the agency plaintiffs had a duty to provide high quality water for the areas downstream of the New Melones Dam. In finding that the agencies had standing, the court applied the three part associational standing test from Hunt v. Washington State Apple Advertising Commission. (740) In Hunt the Supreme Court explained that an association has standing if "its members ... have standing to sue[,] ... the interests [the agency] seeks to protect are germane to the organization's purpose[,] ... [and] neither the claim asserted nor the relief requested requires" participation of a member of the association. (741) The Ninth Circuit concluded that the first part of the Hunt test was satisfied because the individual plaintiffs in the case had standing. In addition, the court found that the second part of the test was satisfied because the state agencies sought "to protect interests germane to their purposes," (742) specifically that the agencies' constituents would have water of acceptable salinity. Finally, the court explained that the third part of the Hunt test was satisfied because the court did not believe that the agencies' constituents were required to be part of the suit. Thus, the Ninth Circuit found that the state agencies had standing to sue.

Concerning the district court's finding that prior administrative and judicial proceedings regarding the New Melones Unit barred the plaintiffs' current action, the Ninth Circuit reversed this finding and noted that it had authority to review the district court's preclusion ruling. The Ninth Circuit explained that for claim preclusion to apply, the prior action must have involved "the same parties[,] ... the same claim or cause of action ... [, and must have ended with] a final judgment on the merits." (743) The court noted that none of the prior actions that involved these parties involved the same claim or cause of action as the current case. The court explained that a prior action involved the same claim or cause of action when four factors were met, the most important factor being whether the actions arose "out of the same transactional nucleus of facts." (744) The Ninth Circuit determined that none of the prior actions involved the same transactional nucleus of facts because the prior actions did not involve the New Melones Unit and the current operational plan's releases of water. Therefore, the Ninth Circuit reversed the district court's application of claim preclusion to the plaintiffs' current action.

The Ninth Circuit also found that issue preclusion was inapplicable because the issues in prior actions and the current action were not identical. The prior action involved a challenge to release of water based on a different plan, whereas this action involved a challenge to releases of water pursuant to a plan adopted in 1999. Thus, the Ninth Circuit reversed the district court's grant of defendant's summary judgment motion and remanded the case.

The dissent argued that the CDWA had not demonstrated standing. The dissent contended that the CDWA had a "right to sufficient water supplied to maintain water quality downstream ... [and] [t]hat that right [had] not been violated, and the government ha[d] no intention of violating it." (745) Thus, the dissent explained that CDWA's argument that in the future the government might breach its duty was "insufficient to show that 'invasion of a legally protected interest' is more than 'conjectural' or hypothetical.'" (746)

4. Idaho Watersheds Project v. Hahn, 307F.3d 815 (9th Cir. 2002), supra Part V.D.

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

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

H. Abstention

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

(1) 42 U.S.C. [subsection] 7401-7671q (2000).

(2) Id. [section] 7410.

(3) Alaska, Dep't of Envtl. Conservation v. United States Envtl. Prot. Agency, 298 F.3d 814, 817 (9th Cir. 2002), cert. granted, 123 S. Ct. 1253 (2003).

(4) Id.

(5) Id.

(6) Id.

(7) Alaska, Dep't of Envtl. Conservation v. United States Envtl. Prot. Agency, 244 F.3d 748 (9th Cir. 2001).

(8) 42 U.S.C. [section] 7607(b)(1) (2000) (providing for judicial review of final agency action).

(9) Alaska, Dep't of Envtl. Conservation, 298 F.3d at 818.

(10) Id.

(11) 42 U.S.C. [subsection] 7607(b)(1), 7413(a)(5) (2000).

(12) Id. [section] 7413(a)(5)(A).

(13) Id. [section] 7413(a)(5)(B)-(C).

(14) Id. [section] 7607.

(15) Alaska Dep't of Envtl. Conservation, 298 F.3d at 820 (quoting S. REP. No. 95-127, at 326, reprinted in 1977 U.S.C.C.A.N. 1077, 1405).

(16) Id. (quoting H.R. REP. No. 101-490(I), pt. 10, at 391 (1990)).

(17) 42 U.S.C. [section] 7479(3) (2000) (granting authority for establishing the BACT to the permitting authority without limiting EPA's enforcement authority).

(18) Alaska, Dep't of Envtl. Conservation, 298 F.3d at 821.

(19) Id. at 822.

(20) Id.

(21) Id. at 823 (citing S. REP. No. 95-127, at 136 (1977)).

(22) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(23) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(24) Id. [section] 1344.

(25) Tillamook County v. United States Army Corps of Eng'rs, 288 F.3d 1140, 1143 (2002).

(26) L.A. Mem'l Coliseum Comm'n v. NFL, 634 F.2d 1197, 1201 (9th Cir. 1980).

(27) Tillamook County, 288 F.3d at 1145.

(28) 40 C.F.R. [section] 1508.9(a)(1) (2000).

(29) Tillamook County, 288 F.3d at 1144 (quoting Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980)).

(30) Tillamook County, 288 F.3d at 1144 (quoting 40 C.F.R. [section] 1508.9(b) (2002)).

(31) Id. (quoting Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir. 1997)).

(32) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(33) Id. [section] 1313(d).

(34) Id. [section] 1313(d)(1)(A), (C).

(35) 467 U.S. 837 (1984).

(36) Pronsolino v. Nastri, 291 F.3d 1123, 1131 (9th Cir. 2002) (quoting United States v. Mead, 533 U.S. 218, 226-27 (2001)), cert. denied, 123 S. Ct. 2573 (2003).

(37) Id. (citing Mead, 533 U.S. at 229).

(38) 323 U.S. 134 (1944).

(39) Pronsolino, 291 F.3d at 1131 (citing Mead 533 U.S. at 228).

(40) 40 C.F.R. [section] 130.2(i) (2002).

(41) Id. [section] 130.7(b)(1)(iii).

(42) 33 U.S.C. [subsection] 1288(j)(1), 1329 (2000).

(43) Pronsolino, 291 F.3d at 1132 (emphasis in original).

(44) Id. at 1133 (quoting 40 C.F.R. [section] 130.2(o)(1) (1978)).

(45) 33 U.S.C. [section] 1313(d)(1)(A) (2000).

(46) 57 F.3d 1517 (9th Cir. 1995).

(47) Pronsolino, 291 F.3d at 1137.

(48) 33 U.S.C. [section] 1313(d) (2000).

(49) Pronsolino, 291 F.3d at 1138.

(50) 33 U.S.C. [section] 1288 (2000).

(51) Id. [section] 1329.

(52) 531 U.S. 159 (2001).

(53) Pronsolino, 291 F.3d at 1140.

(54) Id.

(55) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(56) San Francisco BayKeeper v. Whitman, 297 F.3d 877, 879 (9th Cir. 2002).

(57) 33 U.S.C. [section] 1313(d) (2000).

(58) Id.

(59) San Francisco BayKeeper, 297 F.3d at 880.

(60) Id.

(61) U.S.C. [section] 1313(d) (2000).

(62) Id.

(63) San Francisco BayKeeper, 297 F.3d at 881.

(64) 264 F.3d 1017 (10th Cir. 2001).

(65) Id. at 1024.

(66) San Francisco BayKeeper, 297 F.3d at 883 (quoting Hayes, 264 F.3d at 1024).

(67) Id.

(68) 40 C.F.R. [section] 130.7(d)(1) (2002).

(69) 467 U.S. 837 (1984).

(70) San Francisco BayKeeper, 297 F.3d at 885 (quoting 33 U.S.C. [section] 1313(d)(1)(A)) (modification in original).

(71) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(72) Id. [section] 706(1).

(73) San Francisco BayKeeper, 297 F.3d at 886.

(74) Id.

(75) Federal Water Pollution Control Act, 33 U.S.C. [section] 1365(a)(1) (2000).

(76) 33 U.S.C. [subsection] 1311(a), 1342 (2000).

(77) Ass'n to Protect Hammersley, Eld, and Totten Inlets v. Taylor Res., Inc. (APHETI), 299 F.3d 1007, 1010 (9th Cir. 2002).

(78) APHETI, 299 F.3d at 1009 (citing 33 U.S.C. [subsection] 1311(a), 1342 (2000)).

(79) FED. R. CIV. P. 19(a).

(80) 33 U.S.C. [section] 1362(6) (2000).

(81) APHETI, 299 F.3d at 1017.

(82) 33 U.S.C. [section] 1362(6) (2000).

(83) APHETI, 299 F.3d at 1016.

(84) 33 U.S.C. [section] 1251(a)(2) (2000).

(85) Id. [section] 1362(14).

(86) 40 C.F.R. [section] 122.24(a) (2002).

(87) APHETI, 299 F.3d at 1019.

(88) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(89) Id. [section] 1311(a).

(90) Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy (CARE), 305 F.3d 943, 953 (9th Cir. 2002).

(91) The regulations define CAFO as "'animal feeding operations where animals are stabled or confined for a total of 45 days or more in any 12 month period in an area where neither crops, vegetation or crop residue is sustained.'" Id. at 947 (citing 40 C.F.R. [section] 122.23(c)(3) (2002).

(92) 33 U.S.C. [section] 1365 (2000).

(93) Id. [section] 1365(b).

(94) Id.

(95) CARE, 305 F.3d at 950 (quoting 33 U.S.C. [section] 1365(b) (2000)) (modification in original).

(96) 40 C.F.R. [section] 135.3(a) (2002).

(97) 50 F.3d 1239 (3d Cir. 1995).

(98) Id. at 1248.

(99) CARE, 305 F.3d at 953 (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484 U.S. 49, 64 (1987)).

(100) Id. (quoting Sierra Club v. Union Oil Co., 853 F.2d 667, 671 (9th Cir. 1988)).

(101) Id. at 954.

(102) Id.

(103) 243 F.3d 526 (9th Cir. 2001).

(104) CARE, 305 F.3d at 954.

(105) 33 U.S.C. [section] 1362(14) (2000).

(106) Id. [section] 1362(12).

(107) CARE, 305 F.3d at 956.

(108) See Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 988 (9th Cir. 1995) (citing Envtl. Prot. Agency. v. California, 426 U.S. 200, 224-25 (1976) for the proposition that citizen suit plaintiffs can enforce "EPA-promulgated effluent limitations and state established standards").

(109) CARE, 305 F.3d at 956.

(110) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(111) Id. [section] 1365(a), (d).

(112) Id. [section] 1365(b)(1)(A).

(113) 40 C.F.R. [section] 135.3(a) (2002).

(114) Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (refusing to create an exception to notice requirements because notice allows the government agency the opportunity to enforce and allows the potential violator to comply with the law).

(115) See Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir. 1995) (ruling that notice was insufficient because the plaintiffs did not provide the identity of the plaintiffs and therefore the defendants could not contact plaintiffs to negotiate).

(116) See Cmty. Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir. 2002) (explaining that plaintiffs provided sufficient information of alleged violations in the notice letter even though they included additional violations in their complaint because the additional violations were easily identifiable and from the same source as the violations listed in the notice letter).

(117) Catskill Mtns. v. New York, 273 F.3d 481, 488 (2d Cir. 2001).

(118) 40 C.F.R. [section] 135.3(a) (2002).

(119) 305 F.3d 953 (9th Cir. 2002).

(120) 305 F.3d at 953.

(121) Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 996 (9th Cir. 2000).

(122) San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th Cir. 2002) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)) (internal quotation marks omitted), cert. dismissed, 123 S. Ct. 2296 (2003).

(123) 528 U.S. 167 (2000).

(124) Id. at 174.

(125) Id. at 189 (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)).

(126) Id. at 193.

(127) Tosco, 309 F.3d at 1160.

(128) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(129) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(130) Id. [section] 1323(a).

(131) Id. [section] 1362(14).

(132) 40 C.F.R [section] 122.27 (2000).

(133) Id.

(134) League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1185-86 (9th Cir. 2002) (applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).

(135) Id. at 1186.

(136) 42 U.S.C. [section] 4332(2) (2000).

(137) Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 63 Fed. Reg. 1536 (Jan. 9, 1998).

(138) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(139) Id. [section] 1342(p)(2).

(140) Id. [section] 1342(p)(1), (p)(5).

(141) Id. [section] 1342(p)(6).

(142) Id.

(143) 467 U.S. 837, 842-43 (1984) (holding that courts must defer to an agency's reasonable interpretation of an ambiguous statutory provision).

(144) U.S. CONST. amend. X.

(145) 40 C.F.R. [section] 122.34(b)(3)(ii)(B) (2002).

(146) Id. [section] 122.34(b)(4)(i)-(ii).

(147) Id. [section] 122.34(b)(4)(ii)(A).

(148) 505 U.S. 144 (1992).

(149) Id. at 149.

(150) Envtl. Def. Center, Inc. v. United States Envtl. Prot. Agency (Envtl. Defence), 319 F.3d 398, 413 (9th Cir. 2003) (quoting United States v. Printz, 521 U.S. 898, 932 (1997)).

(151) Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) (requiring a choice between federal mining regulation and a federally authorized state-run program).

(152) Envtl. Defense, 319 F.3d at 414-15.

(153) Id. at 415.

(154) 521 U.S. 457 (1997).

(155) Id. at 469-70.

(156) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(157) Id. [section] 553(b)(3) (notice of a proposed rule must include "the terms or substance of the proposed rule or a description of the subjects and issues involved").

(158) Envtl. Defense, 319 F.3d at 422 (quoting Hedge v. Dawson, 107 F.3d 705, 712 (9th Cir. 1997)).

(159) Id. at 423 (quoting 33 U.S.C. [section] 1342 (p)(3)(B)(iii) (2000)).

(160) 40 C.F.R. [section] 122.34(a) (2002).

(161) 463 U.S. 29 (1983).

(162) Id. at 43.

(163) 504 U.S. 555, 560 (1992) (requiring, for standing purposes, that an injury be actual or imminent).

(164) 528 U.S. 167, 180-81 (2000) (requiring that it "[be] likely, as opposed to merely speculative" that the decision will redress the plaintiffs injury).

(165) 33 U.S.C. [section] 1342(p)(5) (2000).

(166) Envtl. Defense, 319 F.3d 398, 435.

(167) Id. at 438.

(168) 33 U.S.C. [section] 1342(p)(6) (2000).

(169) Envtl. Defense, 319 F.3d at 439.

(170) Id.

(171) Id. at 442 (quoting Sierra Club v. United States Envtl. Prot. Agency, 167 F.3d 658, 662 (1999)).

(172) Id. at 444.

(173) 33 U.S.C. [section] 1251(a) (2000).

(174) 5 U.S.C. [subsection] 601-612 (2000).

(175) 452 U.S. 264 (1981).

(176) Envtl. Defense, 319 F.3d at 451.

(177) Envtl. Defense, 319 F.3d at 455.

(178) Oil Pollution Act of 1990, 33 U.S.C. [subsection] 2701-2761 (2000).

(179) SeaRiver Maritime Financial Holdings, Inc. v. Mineta (SeaRiver), 309 F.3d 662, 667 (9th Cir. 2002) (quoting 33 U.S.C. [section] 2732(a)(2)(A)(2000)).

(180) 33 U.S.C. [section] 2737 (2000).

(181) The Ninth Circuit relied on the U.S. Supreme Court's interpretation of Article I, Section 9, clause 3 of the U.S. Constitution, which prohibits bills of attainder, in Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

(182) SeaRiver, 309 F.3d at 668-69 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 847 (1984)).

(183) Id. at 669 (citing Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 847 (1984); United States v. Brown, 381 U.S. 437, 448-49 (1965)).

(184) U.S. CONST. art. I, [section] 9, cl. 3.

(185) SeaRiver, 309 F.3d at 674.

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

(187) 428 U.S. 1 (1976).

(188) 528 U.S. 562 (2000).

(189) Id. at 564. The Ninth Circuit held that because the Valdez was not a suspect class, any conceivable rational basis for the differential treatment would defeat its equal protection claim. SeaRiver, 309 F.3d at 679 (quoting FCC v. Beach Communication, Inc., 508 U.S. 307, 313 (1993)).

(190) SeaRiver, 309 F.3d at 679.

(191) 42 U.S.C. [subsection] 9601-9675 (2000).

(192) Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 299 F.3d 1019, 1023 (9th Cir. 2002).

(193) 42 U.S.C. [section] 9613(f)(1) (2000).

(194) See Tucker Act, 28 U.S.C. [section] 1346(a) (2000) (determining which claims district courts have conccurrent jurisdiction over with the Court of Federal Claims).

(195) 42 U.S.C. [section] 9613(f).

(196) California v. Campbell, 138 F.3d 772 (9th Cir. 1998).

(197) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsection] 9601-9675 (2000).

(198) See id. [section] 9613(f) (referring to [section] 9607(a) which lists the factors of liability).

(199) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(2)(C) (2000).

(200) Ka Makani 'O Kohala Ohana, Inc. v. Dep't of Water Supply (Ka Makani), 295 F.3d 955, 958 (9th Cir. 2002).

(201) Id. at 959.

(202) Id.

(203) Id. (quoting Alhambra Hosp. v. Thompson, 259 F.3d 1071, 1074 (9th Cir. 2001)).

(204) Id. at 959-60.

(205) 42 U.S.C. [section] 4332(2)(C) (2000).

(206) 24 C.F.R. [section] 58.34(a)(1) (2002).

(207) Id. [section] 58.32(a) (2002).

(208) Ka Makani, 295 F.3d at 962 (emphasis in original).

(209) 24 C.F.R. [section] 58.32(a) (2002).

(210) National Forest Management Act of 1976, 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(211) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(212) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(213) Neighbors of Cuddy Mountain v. Alexander (Neighbors), 303 F.3d 1059, 1070 (9th Cir. 2002) (quoting Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999)).

(214) 16 U.S.C. [section] 1604(g)(3)(B) (2000) (requiring that USFS "provide for diversity of plant and animal communities" in national forests); see also 36 C.F.R. [subsection] 219.12(d), 219.19(a)(6), 219.26 (1999) (requiring inventory data and information collecting; monitoring of population trends and management indicator species; and forest planning providing for diversity).

(215) See 36 C.F.R. [section] 219.19 (1999) (requiring that USFS "insure [species] continued existence is well distributed in the planning area").

(216) See 36 C.F.R. [section] 219.10(a)-(b) (1999) (requiring that USFS prepare a Land Resources Management Plan ("forest plan")); see also id. [section] 219.10(e) (requiring that USFS manage the forest in compliance with the forest plan).

(217) 849 F.2d 1241 (9th Cir. 1988).

(218) 241 F.3d 674 (9th Cir. 2001).

(219) Gordon, 849 F.2d at 1245.

(220) Cantrell, 241 F.3d at 678-79.

(221) 893 F.2d 1012 (9th Cir. 1989).

(222) Id. at 1016.

(223) Neighbors, 303 F.3d 1059, 1066 (9th Cir. 2002) (internal quotation marks omitted).

(224) 5 U.S.C. [section] 704 (2000).

(225) See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 894 (1990) (holding that the judiciary may intervene in the "administration of the laws" only as it relates to a "final agency action").

(266) 192 F.3d 922, 925-926 (9th Cir. 1999).

(227) 228 F.3d 559, 567 (5th Cir. 2000).

(228) Neighbors, 303 F.3d at 1068-1069.

(229) Idaho Sporting Cong. v. Rittenhouse, 305 F.3d 957, 971 (9th Cir. 2002) (quoting 16 U.S.C. [section] 1604 (2000)), cited in Neighbors, 303 F.3d at 1070 (9th Cir. 2002).

(230) 40 C.F.R. [section] 1508.7 (1999), cited in Neighbors, 303 F.3d at 1071.

(231) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).

(232) Neighbor, 137 F.3d 1372, 1376 (9th Cir. 1998) (quoting Or. Natural Res. Council v. Lowe, 109 F.3d 521,526 (9th Cir. 1997)).

(233) Kleppe v. Sierra Club, 427 U.S. 390, 413-414 (1976) (holding that under NEPA, a court must defer to an agency's determination of the scope of the analysis).

(234) Neighbor, 303 F.3d at 1072.

(235) Coastal Zone Management Act of 1972, 16 U.S.C. [subsection] 1451-1465 (2000).

(236) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(237) California v. Norton, 311 F.3d 1162, 1165 (9th Cir. 2002) (citing 43 U.S.C. [section] 1334(a)(1) (2000)).

(238) 16 U.S.C. [section] 1456(c)(1)(A) (2000).

(239) Id. [section] 1456(c)(3)(B); 43 U.S.C. [subsection] 1340(c)(2), 1351(d) (2000).

(240) 16 U.S.C. [section] 1456(c)(3)(B) (2000).

(241) H.R. CONF. REP. NO. 01-508 at 970 (1990) (responding to Secretary of the Interior v. California, 464 U.S. 312 (1984), which found that activities that affected the coastal zone had already been reviewed in the exploration plan or development and production plan).

(242) Lease sales are different than lease extensions, which are at issue in this case.

(243) California v. Norton, 311 F.3d at 1173.

(244) For example, all but one of the leases were sold prior to the approval of California's Coastal Management Plan.

(245) 16 U.S.C. [section] 1456(c)(3)(A) (2000).

(246) Id. [section] 1456(c)(1)(A) (stating that an "activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3)").

(247) California, 311 F.3d at 1174.

(248) 49 C.F.R. 1508.4 (2001).

(249) Id.

(250) National Environmental Policy Act; Revised Implementing Procedures, 49 Fed. Reg. 21,437, 21,439 (May 21, 1984).

(251) See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996) (finding that categorical exclusion of rule concerning bicycle use was allowed, because the National Park Service made findings of fact, applied them to the regulations governing exclusions, and recorded this process in the Federal Register).

(252) Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999).

(253) California, 311 F.3d at 1177.

(254) Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986). See 49 Fed. Red. at 21,439 (prohibiting use of the categorical exception if the exceptions might apply).

(255) 49 Fed. Red. at 21,439.

(256) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(257) 42 U.S.C. [subsection] 7401-7671p (2000).

(258) North American Free Trade Agreement Implementation Act, 19 U.S.C. [subsection] 3301-3473 (2000).

(259) Application by Certain Mexico-Domiciled Motor Carriers to Operate Beyond United States Municipalities and Commercial Zones on the United States-Mexico Border, 67 Fed. Reg. 12,702 (Mar. 19, 2002) (to be codified as 49 C.F.R. pt. 365).

(260) Safety Monitoring System and Compliance Initiative for Mexico Domiciled Motor Carriers Operating in the United States, 67 Fed. Reg. 12,758 (Mar. 19, 2002) (to be codified as 49 C.F.R. pt. 385).

(261) Certification of Safety Auditors, Safety Investigators, and Safety Inspectors, 67 Fed. Reg. 12,776 (Mar. 19, 2002) (to be codified as 49 C.F.R. pts. 350, 385).

(262) 5 U.S.C. [subsection] 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(263) Public Citizen v. United States Dep't of Transp., 316 F.3d 1002, 1015 (9th Cir. 2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))).

(264) Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).

(265) 528 U.S. 167 (2000).

(266) Public Citizen, 316 F.3d at 1021.

(267) 42 U.S.C. [section] 4332(2)(C) (2000).

(268) 40 C.F.R. [section] 1501.4 (2002).

(269) Public Citizen, 316 F.3d at 1021.

(270) Id.

(271) 40 C.F.R. [section] 1508.18 (2002).

(272) Id. [section] 1508.7.

(273) Id. [section] 1508.27.

(274) Id. [section] 1508.4.

(275) 42 U.S.C. [section] 7407(a) (2000).

(276) 40 C.F.R. [subsection] 93.150-93.160.

(277) Id. [section] 93.153(c)(1)-(2).

(278) Id.

(279) At the time of the lawsuit, the Center for Biological Diversity was named Southwest Center for Biological Diversity.

(280) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(281) Id. [section] 1536.

(282) Southwest Ctr. for Biological Diversity v. United States Forest Serv., 307 F.3d 964, 973 (9th Cir. 2002).

(283) 16 U.S.C. [section] 1536(d) (2000).

(284) Id. [section] 1536(a)(2).

(285) 50 C.F.R. [section] 402.14 (2002).

(286) 16 U.S.C. [section] 1536(d) (2000).

(287) 437 U.S. 153 (1978) (approving an injunction halting operation of Tellico Dam because the dam would jeopardize the existence of the snail darter (Percina tanasi), an endangered species under the ESA).

(288) The court cited Greenpeace v. National Marine Fisheries Service, 106 F. Supp. 2d 1066, 1072 (W.D. Wash. 2000).

(289) 753 F.2d 754 (9th Cir. 1985) (enjoining construction of road until USFS prepared biological assessment to determine whether timber sale in conjunction with road construction would affect the Rocky Mountain gray wolf (Canis lupus)).

(290) Id. at 764.

(291) 106 F. Supp. 2d 1066 (W.D.Wash. 2000).

(292) Id. at 1074-75.

(293) 284 F.3d 1046 (9th Cir. 2002).

(294) Id. at 1057.

(295) Id.

(296) Southwest Ctr. for Biological Diversity, 307 F.3d at 972.

(297) Id. at 973.

(298) 816 F.2d 1376 (9th Cir. 1987).

(299) Southwest Ctr. for Biological Diversity, 307 F.3d at 973.

(300) Id.

(301) Id. at 974.

(302) Id. (citing Alaska Ctr. for the Env't v. United States Forest Serv., 189 F.3d 851, 854 (9th Cir. 1999), which stated, "in determining if an issue satisfies the repetition/evasion exception, [this court has] recognized that 'evading review' means that the 'underlying action is almost certain to run its course before either this court or the Supreme Court can give the case full consideration'") (citations omitted).

(303) Endangered Species Act of 1973, 16 U.S.C. [section] 1540(g)(2)(A)(i) (2000).

(304) 520 U.S. 154 (1997).

(305) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(306) Bennett, 520 U.S. at 177-79.

(307) Southwest Ctr. for Biological Diversity, 307 F.3d at 976 (Canby, J., dissenting).

(308) 16 U.S.C, [section] 1533 (2000) (defining statutory deadlines for responding to petitions to list endangered and threatened species).

(309) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2002).

(310) Id [section] 1533(b)(a)(A)-(B).

(311) U.S. CONST. art. III.

(312) See Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2000) (setting out the concrete injury, causation, and redressability elements).

(313) See United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (9th Cir. 1996) (holding that an organization must have a member that has Article III standing, organizational purposes that are aligned with the lawsuit, and a claim and requested relief that do not require the member's participation).

(314) Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)).

(315) 984 F.2d 1534, 1537 (9th Cir. 1993).

(316) Biodiversity Legal Found, 309 F.3d at 1172 (citing the dissent at 1179).

(317) S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).

(318) Greenpeace Action v. Franklin, 14 F.3d 1342, 1329 (9th Cir. 1993).

(319) Id.

(320) 16 U.S.C. [section] 1533(b)(3)(A)-(B) (2000).

(321) Id. [section] 1533(b)(3)(A).

(322) Id. [section] 1533(b)(3)(B).

(323) 5 U.S.C. [section] 706 (2000).

(324) Biodiversity Legal Found., 309 F.3d at 1177 (citing Tenn. Valley Auth. v. Hill 437 U.S. 153, 194 (1978)).

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

(326) U.S. CONST. art. IV, [section] 2, cl. 1.

(327) 511 U.S. 93 (1994).

(328) Id. at 98.

(329) Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002), cert. denied sub nom. Golightly v. Montoya, 123 S. Ct. 902 (2003) (quoting Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 574 (1997)).

(330) See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 570-71 (holding that camping regulations invoked the Commerce Clause).

(331) Conservation Force, 301 F.3d at 995.

(332) 16 U.S.C. [subsection] 1801-1883 (2000).

(333) Id [section] 773 (2000).

(334) Pacific Halibut Fisheries, 58 Fed. Reg. 59,375, 59,402 (Nov. 9, 1993) (codified at 50 C.F.R. pt. 679 (2002)).

(335) 50 C.F.R. [section] 679.40(a)(2)(A) (emphasis added).

(336) Id. [section] 679.40(a)(3).

(337) Id. [section] 679.40(a)(4)(i).

(338) Id. [section] 679.40(a)(4)(ii).

(339) Wards Cove Packing Corp. v. Nat'l Marine Fisheries Serv., 307 F.3d 1214, 1218 (9th Cir. 2002).

(340) Id.

(341) 28 U.S.C. [section] 2412(d)(1)(A) (2000).

(342) 16 U.S.C. [subsection] 1131-1136 (2000).

(343) Arizona Wilderness Act of 1984, Pub. L. No. 98-406, 98 Stat. 1485.

(344) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(345) See 16 U.S.C. [subsection] 1131-1136 (2000); Arizona Wilderness Act [section] 101(a)(23), (f)(1), 98 Stat. at 1487, 1489.

(346) See Arizona Wilderness Act, [section] 101(f)(1), 98 Stat. at 1489.

(347) 427 U.S. 390, 414 (1976) (holding that USFS's decision not to conduct a region-wide environmental impact statement was entitled to deference).

(348) 16 U.S.C. [subsection] 1131-1136 (2000).

(349) National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. [subsection] 668dd-668ee (2000).

(350) Alaska National Interest Lands Conservation Act, 16 U.S.C. [subsection] 3101-3233 (2000).

(351) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(352) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 8344, 4301, 5335, 5372, 7521 (2000).

(353) 533 U.S. 218 (2001).

(354) 467 U.S. 837 (1984).

(355) Mead, 533 U.S. at 221.

(356) 16 U.S.C. [subsection] 668dd(d)(1)(A), 1133(b), 3124 (2000).

(367) Mead, 533 U.S. at 230-31.

(358) 323 U.S. 134 (1994).

(359) 16 U.S.C. [section] 1131(c) (2000).

(360) Id. [section] 1133(c).

(361) Only uses "compatible with the major purposes" of the Refuge are permitted. 16 U.S.C. [section] 668dd(d)(1)(A) (2000).

(362) Alaska National Interest Lands Conservation Act, Pub. L. No. 96487, [section] 303(4)(B)(i), 94 Stat. 2371, 2391 (1980) (codified at 16 U.S.C. [section] 668dd note (2090)).

(363) Id. [section] 668dd(a)(2).

(364) Id. [section] 668dd(e).

(365) See Alaska National Interest Lands Conservation Act [section] 304(e), 94 Stat. at 2394 (permitting enhancement and rehabilitation of fish stock); 16 U.S.C. [section] 3203(b) (establishing the goal of maintaining optimum yields of wilderness resources); id. [section] 3101(b) (providing for maintenance of population size of wildlife).

(366) Student Loan Fund of Idaho, Inc. v. United States Dep't of Educ., 272 F.3d 1155, 1165 (9th Cir. 2001) (citing Rucker v. Davis, 237 F.3d 1113, 1119 (9th Cir. 2001) (en banc)).

(367) Wilderness Soc. v. United States Fish and Wildlife Serv., 316 F.3d 913, 934 (9th Cir. 2003) (Fletcher, J., dissenting).

(368) 16 U.S.C. [subsection] 3103(b), 3123 (2000).

(369) Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980).

(370) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(371) National Forest Management Act of 1976, 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resource Planning Act of 1974, Pub. L. No. 93-378, 88 Star. 476).

(372) Habitat Effectiveness Index is an indicator of how open road density affects elk habitat.

(373) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(374) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 1205, 3344, 4301, 5335, 5372, 7521 (2000).

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

(376) 40 C.F.R. [subsection] 1501.4(b), 1508.9 (2002).

(377) Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000).

(378) 40 C.F.R. [section] 1508.25(a)(1) (2002).

(379) Wetlands Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105, 1118 (9th Cir. 2000).

(380) 40 C.F.R. [section] 1508.25(a)(2) (2002).

(381) Id. [section] 1508.7 (2002).

(382) 36 C.F.R. [section] 219.10(a) (1996); 16 U.S.C. [section] 1604(i) (2000).

(383) 16 U.S.C [section] 1604(f)(4) (2000).

(384) Id. [section] 1536(a)(2); 50 C.F.R. [section] 402.12 (2002).

(385) 50 C.F.R. [section] 402.02 (2001)

(386) See COUNCIL ON ENVIRONMENTAL QUALITY, CONSIDERING CUMULATIVE EFFECTS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT, available at http://ceq.eh.doe.gov/nepa/ccenepa/ccenepa.htm. (last visited July 20, 2003) (discussing the factors relevant in determining the geographical scope of an EA).

(387) National Forest Management Act of 1976, 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(388) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(389) 16 U.S.C. [section] 1604 (2000).

(390) Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961 (9th Cir. 2002) (quoting 16 U.S.C. [section] 1604(g)(3)(B) (2000) and 36 C.F.R. [section] 219.9 (1999)).

(391) Id. at 963.

(392) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(393) Id. [section] 704.

(394) Idaho Sporting Cong., 305 F.3d at 965 (quoting ISC argument to USFS).

(395) Id. at 966.

(396) Id. at 967 (quoting the 1996 Monitoring Report).

(397) Compartments are subdivisions of management areas within the forest, consisting of 5,000 to 7,000 acres. Id. at 968.

(398) USFS applied the R4 definition of old growth that was developed by the Region Four Task Force after the Plan was developed. The R4 definition was not identified in the Plan.

(399) Idaho Sporting Cong., 305 F.3d at 971.

(400) Id. at 971 (quoting 36 C.F.R. [section] 219.19(a)(1) (1999)).

(401) Id. at 972 (quoting 36 C.F.R. [section] 219.19(a)(6) (1999)).

(402) 88 F.3d 754 (9th Cir. 1996).

(403) Idaho Sporting Cong., 305 F.3d at 972.

(404) Id. (quoting USFS wildlife expert).

(405) Id. at 973 (quoting the 1996 Monitoring Report) (emphasis omitted).

(406) Id. Both ISC and USFS agreed that landscape scale was "a larger analysis area than 'home range.'" Id.

(407) USFS ultimately documented at least 58.5 million acres of inventoried roadless areas.

(408) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(409) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(410) Limitations included the "preservation of 'reserved or outstanding rights' or discretionary USFS construction necessary for public health and safety." Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1105-6 (9th Cir. 2002) (quoting 36 C.F.R. [section] 294.12(b)(1), (3) (2001)).

(411) Plaintiffs were also joined by motorized recreation groups, livestock companies, and two Idaho counties, including: the BlueRibbon Coalition; Boise County, Idaho; Valley County, Idaho; Idaho State Snowmobile Association; Illinois Association of Snowmobile Clubs; American Council of Snowmobile Associations; Little Cattle Company Limited Partnership; and the Highland Livestock and Land Company.

(412) Some state officials joined Idaho in the suit.

(413) Intervenors included Idaho Conservation League, Idaho Rivers United, Sierra Club, The Wilderness Society, Oregon Natural Resources Council, Pacific Rivers Council, Natural Resources Defense Council, and Defenders of Wildlife.

(414) Kootenai Tribe, 313 F.3d at 1107 (noting that the district court "heavily relied on [Federal Rule of Civil Procedure 24(a)]" and ruled that if ICL did not properly intervene as a matter of right, then intervention was proper under Federal Rule of Civil Procedure 24(b), which governs permissive intervention, and grants the court discretion to allow intervention when intervenors show a common question of law or fact between their claim or defense and the main action).

(415) FED. R. CIV. P. 24(a).

(416) FED. R. CIV. P. 24(b).

(417) Kootenai Tribe, 313 F.3d at 1107-08 (citing Wetlands Action Network v. United States Army Corps of Eng'rs., 222 F.3d 1105, 1113-14 (9th Cir. 2000); Sierra Club v. United States Envtl. Prot. Agency, 995 F.2d 1478, 1481 (9th Cir. 1993)).

(418) FED. R. CIV. P. 24(b); see also 7C WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE [section] 1911, 357-63 (2d ed. 1986).

(419) Kootenai Tribe, 313 F.3d at 1111.

(420) Didrickson v. United States Dep't of the Interior, 982 F.2d 1332, 1337-38 (9th Cir. 1992).

(421) Kootenai Tribe, 313 F.3d at 1109.

(422) Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (Laidlaw), 528 U.S. 167, 180 (2000).

(423) Id.

(424) Id. at 180-81.

(425) Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001).

(426) Id.

(427) Kootenai Tribe, 313 F.3d at 1112.

(428) Id. (quoting Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir. 2000)).

(429) Laidlaw, 528 U.S. at 183.

(430) Kootenai Tribe, 313 F.3d at 1113.

(431) Id. (citing Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir. 1995)).

(432) Cantrell, 241 F.3d at 682.

(433) Kootenai Tribe, 313 F.3d at 1113 (citing Douglas County, 48 F.3d at 1501).

(434) Id. (quoting City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir. 1975)).

(435) 42 U.S.C. [section] 4332(2)(C) (2000).

(436) The standard of review for preliminary injunctions is whether "the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous finding of fact." Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir. 2000). See also Gregoria T. v. Wilson, 59 F.3d 1002, 1004 (9th Cir. 1995).

(437) Kootenai Tribe, 313 F.3d at 1115 (citing Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir. 2000)).

(438) Id. at 1114 (citing Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 80, 814 (9th Cir. 1999)).

(439) 40 C.F.R. [section] 1506.6(a) (2002); see also id. [section] 1501.7(a)(1) (requiring that agencies solicit participation of state and local governments and Indian tribes affected by the rule); 5 U.S.C. [section] 553(c) (2000) (agency must give "interested persons an opportunity to participate in the rule making").

(440) Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 594-95 (9th Cir. 1988).

(441) 40 C.F.R. [section] 1502.9(c)(1) (2002).

(442) Id. [section] 1506.10(c).

(443) Kootenai Tribe, 313 F.3d at 1119.

(444) See 42 U.S.C. [section] 4332(E) (2000) (agency must "study, develop, and describe appropriate alternatives to recommended courses of action"); see also 40 C.F.R. [section] 1502.14(a) (directing USFS to "rigorously explore and objectively evaluate all reasonable alternatives").

(445) Kootenai Tribe, 313 F.3d at 1120 (quoting final EIS); see also Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (not requiring USFS to consider alternatives inconsistent with its basic policy objective).

(446) Kootenai Tribe, 313 F.3d at 1120.

(447) Id. at 1121.

(448) See 42 U.S.C. [section] 4331(a) (2000) (declaring national environmental policy striving for the creation and maintenance of "conditions under which man and nature can exist in productive harmony").

(449) Kootenai Tribe, 313 F.3d at 1124.

(450) Id. at 1125.

(451) Id.

(452) 866 F.2d 302 (9th Cir. 1989).

(453) Id. at 309.

(454) 673 F.2d 182 (7th Cir. 1982).

(455) Id. at 187.

(456) Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1994) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)).

(457) California v. Block, 690 F.2d 753, 769 (9th Cir. 1982).

(458) U.S. CONST. amend. XIV, [section] 1.

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

(460) Madison v. Graham, 126 F. Supp. 2d 1320, 1324, 1327-28 (D. Mont. 2001).

(461) Id. at 1328; FED. R. CIV. P. 12(b)(6).

(462) MONT. CODE ANN. [section] 23-3-302(1) (2002).

(463) MONT. CODE ANN. [subsection] 23-2-309, 22-2-322, 70-16-201(2002).

(464) Madison v. Graham, 316 F.3d 867, 870 (9th Cir. 2002), cert. denied, 123 S. Ct. 221 (2003).

(465) 75 F.3d 1311 (9th Cir. 1996).

(466) Id. at 1324 (internal quotation marks omitted).

(467) 490 U.S. 386 (1989).

(468) Id. at 395.

(469) E.g., Daniel v. County of Santa Barbara, 288 F.3d 375, 384-85 (9th Cir. 2002).

(470) 524 U.S. 498 (1998).

(471) 307 F.3d 978 (9th Cir. 2002).

(472) Id. at 982-83.

(473) Id.

(474) Eastern Enterprises, 524 U.S. at 538.

(475) 16 U.S.C. [subsection] 791(a)-828(c) (2000).

(476) Id. [section] 817.

(477) 16 U.S.C. [subsection] 1451-1465(c) (2000).

(478) Id. [section] 1456(c)(3)(A).

(479) Id.

(480) Mountain Rhythm Res. v. Fed. Energy Regulatory Comm'n, 302 F.3d 958, 964 (9th Cir. 2002) (quoting 16 U.S.C. [section] 1453(1) (2000)).

(481) See 15 C.F.R. [section] 923.31(a)(8) (2000) (stating that "[a]n inland coastal zone boundary [may be] defined in terms of political jurisdiction (e.g., county ...)").

(482) Mountain Rhythm Res., 302 F.3d at 966.

(483) 16 U.S.C. [section] 1456(c)(3)(A) (2000).

(484) Id. [section] 1456(c)(3)(A), (B)(ii).

(485) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(486) Federal Power Act, 16 U.S.C. [subsection] 791-828c (2000).

(487) Cal. Trout, Inc. v. Fed. Energy Regulatory Comm'n, 313 F.3d 1131, 1133 (9th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3759 (U.S. May 27, 2003) (No. 02-1735).

(488) Chevron deference refers to principles of deference from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

(489) 16 U.S.C. [section] 8251(b) (2000).

(490) Cal. Trout 313 F.3d at 1134 (quoting Federal Power Act, 16 U.S.C. [section] 8251(b) (2000) (emphasis added)).

(491) Id.

(492) Cal. Trout, 313 F.3d at 1135.

(493) 16 U.S.C. [section] 808(a)(1) (2000).

(494) Cal. Trout, 313 F.3d at 1136.

(495) 510 F.2d 198, 205-06 (D.C. Cir. 1975).

(496) 42 U.S.C. [subsection] 7401-7671(q) (2000). Specifically, the conviction was under 42 U.S.C. [section] 7413(c)(1) (2000).

(497) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000). Specifically, the defendants were convicted for violation of 33 U.S.C. [section] 1319 (2000).

(498) Both defendants were charged with several violations including the discharge of pollutants into Silver Bay without a permit. United States v. Technic Services, Inc. (TSI), 314 F.3d 1031, 1037 (9th Cir. 2002). Rushing was also charged under 18 U.S.C. [section] 1505 for "attempting to 'influence, obstruct, or impede' inspection and enforcement proceedings ... by 'altering, concealing and deactivating' personal air-monitoring devices worn by workers," and soliciting false statements from employees that stated that TSI did not discharge pollutants into the bay. Id. (quoting 18 U.S.C. [section] 1505 (2000)).

(499) Id.

(500) Id.

(501) FED. R. CRIM. P. 12(b)(2).

(502) TSI, 314 F.3d at 1040 (quoting United States v. Savage, 67 F.3d 1435, 1439 (9th Cir. 1995)).

(503) 33 U.S.C. [section] 1319(c)(2)(A) (2000).

(504) TSI, 314 F.3d at 1044 (quoting United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991)).

(505) Id.

(506) "Federal Rule of Evidence 408 does not require the exclusion of evidence produced in the course of settlement negotiations if that evidence is 'offered for another purpose, such as ... proving an effort to obstruct a criminal investigation ...'" Id. at 1045 (emphasis in original) (quoting FED. R. EVID. 408).

(507) Id.

(508) U.S. SENTENCING GUIDELINES MANUAL [section] 2Q1.2(b)(1)(A), cmt. n.5 (2002).

(509) 994 F.2d 658, 663-64 (9th Cir. 1993).

(510) 198 F.3d 1161, 1165 (9th Cir. 1999).

(511) U.S. SENTENCING GUIDELINES MANUAL [section] 3B1.1(a) (2002).

(512) Id. [section] 3B1.3. "[A] defendant is eligible for a two-point enhancement '[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.'" TSI, 314 F.3d at 1048 (quoting the U.S. SENTENCING GUIDELINES MANUAL [section] 3B1.3 (2002)).

(513) U.S. SENTENCING GUIDELINES MANUAL [section] 3B1.3, cmt. n.1 (2002).

(514) 42 U.S.C. [subsection] 7401-7671q (2000).

(515) The indictment was for violating 42 U.S.C. [section] 7412 (2000).

(516) U.S. CONST. amend. V (providing that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb").

(517) United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002) (citing Richardson v. United States, 468 U.S. 317, 322 (1984)).

(518) Id. (citing Heath v. Alabama, 474 U.S. 82, 88 (1985)).

(519) 42 U.S.C. [subsection] 7412, 7416 (2000).

(520) Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, [section] 315, 110 Stat. 1321, 1321-200-02 (codified as amended 16 U.S.C. [section] 4601-6a note (2000)).

(521) 36 C.F.R. [section] 261.15 (2002) (providing that failing to pay a required fee for entrance to, or use of, a federal site is prohibited and punishable by a fine).

(522) Pub. L. No. 104-134 [section] 315(b), 110 Star. at 1321-201.

(523) Posadas v. Nat'l. City Bank, 296 U.S. 497, 503 (1936).

(524) 527 U.S. 41, 56 (1999).

(525) 18 U.S.C. [section] 3559(a)(9) (2000).

(526) 16 U.S.C. [subsection] 668-668d (2000).

(527) 42 U.S.C. [subsection] 2000bb-2000bb-4 (2000).

(528) United States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003) (quoting 16 U.S.C. [section] 668(a) (2000)).

(529) Id.

(530) Id. at 921.

(531) 109 F.3d 1375 (9th Cir. 1997).

(532) Antoine, 318 F.3d at 922 (emphasis in original).

(533) 109 F.3d 1375 (9th Cir. 1997) (per curiam).

(534) Antoine, 318 F.3d at 923.

(535) Alaska National Interest Lands Conservation Act, 16 U.S.C. [subsection] 3101-3233 (2000).

(536) 247 F.3d 1032 (9th Cir. 2001) (en banc) (per curiam) (Alaskan natives challenged Secretary's exclusion of navigable waters from ANILCA management and Alaska's jurisdiction over those waters).

(537) 72 F.3d 698 (9th Cir. 1095) (Alaska sued the federal government, asserting its right to regulate navigable waters).

(538) 16 U.S.C. [section] 3117(a) (2000).

(539) Id.

(540) 42 U.S.C. [subsection] 7401-7671q (2000).

(541) 478 U.S. 546, 557 (1986).

(542) Id. at 561.

(543) See 16 U.S.C. [section] 3111(1), (5) (2000) (confirming the purpose of Title VIII to protect subsistence rights for Native Alaskans and establishing a procedure to give rural residents a "meaningful role" in the management of those rights).

(544) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(545) Marine Mammal Protection Act of 1972, 16 U.S.C. [subsection] 1361-1421h (2000).

(546) Anderson v. Evans, 314 F.3d 1006, 1009 (9th Cir. 2002).

(547) 5 U.S.C. [section] 706(2)(A) (2000).

(548) Blue Mountains Biodiversity Project v. Blackwood (Blue Mountains), 161 F.3d 1208, 1211 (9th Cir. 1998) (citing Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997)).

(549) 214 F.3d 1135 (9th Cir. 2000).

(550) Id. at 1143-46.

(551) Id. at 1146.

(552) 40 C.F.R. [section] 1508.27 (2000).

(555) 42 U.S.C. [section] 4332(C) (2000).

(574) 40 C.F.R. [section] 1508.27(b)(2) (2000).

(555) Id. [section] 1508.27(b)(4).

(556) Id. [section] 1508.27(b)(5).

(557) Id. [section] 1508.27(b)(6).

(558) Blue Mountains, 161 F.3d at 1212; Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998).

(559) Anderson, 314 F.3d at 1017 (citing Friends of the Earth v. Hintz, 800 F.2d 822, 834-35 (9th Cir. 1986).

(560) The IWC was created by the International Convention for the Regulation of Whaling. This convention was implemented domestically by the Whaling Convention Act of 1949, 16 U.S.C. [section] 916(a)-(1) (2000).

(561) Anderson, 314 F.3d at 1013-14.

(562) Marine Mammal Protection Act of 1972, 16 U.S.C. [subsection] 1361-1421h (2000).

(563) 12 Stat. 939, 940 (1855).

(564) 16 U.S.C. [section] 1372(a)(2) (2000).

(565) 62 Stat. 1716 (1948).

(566) 16 U.S.C. [section] 1372(a)(2) (2000).

(567) Id. [section] 1378(a)(4).

(568) Anderson, 314 F.3d at 1024.

(569) 16 U.S.C. [section] 1372(a)(2) (2000).

(570) Anderson, 314 F.3d at 1026 (citing United States v. Fryberg, 622 F.2d 1010, 1014-15 (9th Cir. 1980)).

(571) 16 U.S.C. [section] 1362(15) (2000).

(572) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsection] 9601-9675 (2000).

(573) Cal. Dep't of Toxic Substances Control v. Commercial Realty Projects, Inc. (CDTSC), 309 F.3d 1113, 1117 (9th Cir. 2002), cert. dismissed, 123 S. Ct. 2267 (2003).

(574) 42 U.S.C. [section] 96130(i) (2000).

(575) FED. R. CIV. P. 24(a).

(576) FED. R. CIV. P. 24(b).

(577) CDTSC, 309 F.3d at 1118.

(578) 86 F.3d 1499, 1503 (9th Cir. 1996).

(579) CDTSC, 309 F.3d at 1119 (quoting United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996)).

(580) Id.

(581) Id.

(582) Id. at 1120.

(583) Id. The court cited United States v. Pitney Bowes, Inc., 25 F.3d 66, 69-74 (2d Cir. 1994), which recognized that "an untimely motion prevents intervention under CERCLA ..., intervention of right, ... and permissive intervention." CDTSC, 309 F.3d at 1120 (citation omitted).

(584) 86 F.3d 1499, 1503 (9th Cir. 1996) (outlining criteria for granting a motion to intervene).

(585) CDTSC, 309 F.3d at 1120.

(586) Id. The divestment rule takes jurisdiction from a district court once a notice of appeal is filed.

(587) Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l. Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (quoting Stratosphere Litig. L.L.C.v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)).

(588) Id. at 1078 (quoting Stratosphere Litig. LLC. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)).

(589) Id. at 1081 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995)).

(590) Id. at 1084.

(591) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(592) See, e.g., Price Rd. Neighborhood Ass'n v. United States Dep't of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997) (finding that "NEPA requires an agency to take a 'hard look' at the potential environmental consequences of proposed projects before taking action").

(593) Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824 (9th Cir. 2002).

(594) Id.

(595) 5 U.S.C. [subsection] 551-559; 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(596) Id. [section] 704 (2000) (examining reviewability of agency actions).

(597) Idaho Watersheds Project, 307 F.3d at 825 (citing Darby v. Cisneros, 509 U.S. 137, 157 (1993)).

(598) Id.

(599) See 43 C.F.R. [section] 4160.3(d) (2002). The court mentions that the correct provision may be section 4160.3(e) but continues to reference section 4160.3(d), because the parties had cited that section in their briefs and both sections provide for continued grazing levels during a stay. Idaho Watersheds Project, 307 F.3d at 826.

(600) Idaho Watersheds Project, 307 F.3d at 826.

(601) 509 U.S. 137 (1993).

(602) Idaho Watersheds Project, 307 F.3d at 828.

(603) 90 F.3d 1403 (9th Cir. 1996).

(604) Idaho Watersheds Project, 307 F.3d at 829.

(605) 5 U.S.C. [section] 704 (2000).

(606) The ranchers based their claim on Ma v. Reno, 114 F.3d 128, 131 (9th Cir. 1997), but the Ninth Circuit discredited that case in a footnote. Idaho Watersheds Project, 307 F.3d at 830.

(607) 28 U.S.C. [section] 1331 (2000) (granting federal courts original jurisdiction over federal question claims).

(608) See, e.g., United States v. Microsoft, 253 F.3d 34, 101-03 (D.C. Cir. 2001) (holding that an evidentiary hearing is required unless waived or the facts are not in dispute).

(609) Idaho Watersheds Projects, 307 F.3d at 833.

(610) Id. at 835.

(611) 16 U.S.C. [subsection] 5901, 5911-14, 5931-37, 5951-66, 5981-82, 5991-95, 6011 (2000).

(612) Id. [section] 5937.

(613) 5 U.S.C. [section] 552 (2000).

(614) Southwest Ctr. for Biological Diversity v. United States Dep't of Agric. (Southwest Center), 314 F.3d 1060, 1061 (9th Cir. 2002) (quoting National Parks Omnibus Management Act, 16 U.S.C. [section] 5937 (2000)).

(615) 511 U.S. 244, 273 (1994).

(616) Southwest Center, 314 F.3d at 1062. The court gave some examples of impermissible retroactive effects. For example, if it "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," then application of the statute would have an impermissible retroactive effect. Id. (quoting Landgraf, 511 U.S. at 280).

(617) Id.

(618) Intervenors included Blue Ribbon Coalition, Inc., Montana Snowmobile Association, Montana 4x4 Association, High County Trail Riders Association, Montana Trail Vehicle Riders Association, Rimrock 4x4, Inc., Montana High Country Tours, Bitterroot Adventures, Sneed's Cycle and Sled, and Middlefork Property Owners Association. Mont. Wilderness Ass'n. v. United States Forest Serv., 314 F.3d 1146 (9th Cir. 2003).

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

(620) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

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

(622) Id. [section] 706(1).

(623) Mont. Wilderness Ass'n., 314 F.3d at 1148 (quoting Montana Wilderness Study Act of 1977, 91 Stat. 1243) (emphasis in original).

(624) Id. at 1149 (quoting 5 U.S.C. [section] 706(2)(A), (C) (2000)).

(625) Id. (citing Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999)).

(626) Id. at 1150 (citing Bennett v. Spear, 520 U.S. 154, 177 (1997)).

(627) Id.

(628) The categories of "agency action" include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. [section] 551(13) (2000).

(629) Mont. Wilderness Ass'n, 314 F.3d at 1150 (quoting 5 U.S.C. [section] 706(1) (2000)).

(630) 150 F.3d 1132 (9th Cir. 1998).

(631) Mont. Wilderness Ass'n, 314 F.3d at 1151 (quoting Montana Wilderness Study Act of 1977, 91 Stat. 1243).

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

(633) 192 F.3d 922 (9th Cir. 1999).

(634) Mont. Wilderness Ass'n, 314 F.3d at 1151.

(635) Id.

(636) Id. at 1152.

(637) Id.

(638) Id.

(639) The defendants were the Secretary of Commerce, NMFS, and the National Oceanic and Atmospheric Administration, collectively NMFS for this summary.

(640) 16 U.S.C. [subsection] 1801-1883 (2000).

(641) 5 U.S.C. [section] 553(b)-(c) (2000).

(642) Pacific Council is one of the Regional Fishery Management Councils established by the Magnuson Act, 16 U.S.C. [section] 1801(b)(5) (2000).

(643) Id.

(644) Id. [section] 1854(a).

(645) The 2001 regulations were published January 11, 2001. 2001 Groundfish Fishery Specifications and Management. Measures, 66 Fed. Reg. 2338 (Jan. 11, 2001).

(646) 16 U.S.C. [subsection] 1853(c), 1854(b)(1) (2000).

(647) 5 U.S.C. [section] 553(b) (2000).

(648) Id. [section] 553(b)(B). Notice and comment may be waived when an agency "for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." Id.

(649) Natural Res. Def. Council, Inc. v. Evans (NRDC), 316 F.3d 904, 910 (9th Cir. 2003) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992)) (internal quotations omitted).

(650) Id.

(651) Id. at 911 (quoting Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992)) (internal quotations omitted).

(652) NRDC, 316 F.3d at 912.

(653) Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1486 (9th Cir. 1992).

(654) 42 U.S.C. [subsection] 9601-9675 (2000).

(655) CAL. HEALTH & SAFETY CODE [subsection] 25300-25395.15 (West 2002).

(656) See id. [subsection] 25312, 25313, 25350-25359.8 (stating that the DTSC is a California agency that assures the protection of public health and environment by overseeing the cleanup of hazardous waste).

(657) Id. [section] 25356(d).

(658) 312 U.S. 496 (1941) (2000).

(659) Cedar Shake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620, 622 (9th Cir. 1993) (quoting Kollsman v. City of Los Angeles, 737 F.2d 830, 833 (9th Cir. 1984)).

(660) Fireman's Fund Ins. Co.v. City of Lodi (Fireman's Fund), 302 F.3d 928, 940 (9th Cir. 2002), cert. denied, 123 S. Ct. 1754 (2003).

(661) ARCO Envtl. Remediation, LLC v. Dep't of Health and Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000).

(662) 501 U.S. 597 (1991).

(663) Id. at 608 (internal quotation marks omitted).

(664) LODI, CAL., MUNICIPAL CODE [section] 8.24.040(A)(9)(c) (2002).

(665) Id. [section] 8.24.040.

(666) Id. [section] 8.24.040(E).

(667) Id. [subsection] 8.24.030-8.24.040.

(668) Id. [subsection] 8.24.010(2), 8.24.040(A)(9)(a).

(669) Id. [section] 8.24.050.

(670) Id. [section] 8.24.090(B)(1).

(671) Id. [section] 8.24.040(A)(9)(c).

(672) Id. [section] 8.24.040.

(673) Id. [section] 8.24.040(E).

(674) 42 U.S.C. [section] 9607(b) (2000); CAL. HEATH & SAFETY CODE [section] 25363(a) (West 2002).

(675) Fireman's Fund, 302 F.3d at 949.

(676) LODI, CAL., MUNICIPAL CODE [subsection] 8.24.0304.24.040 (2002).

(677) 42 U.S.C. [section] 9607 (a)(4)(B) (2000); CAL. HEALTH & SAFETY CODE [section] 25356.1.5(a)(1) (West 2002). The NCP is a plan that assigns roles for federal, state, and local governments in the cleanup of hazardous waste sites. Fireman's Fund, 302 F.3d at 949-50.

(678) Fireman's Fund, 302 F.3d at 953.

(679) LODI, CAL., MUNICIPAL CODE [section] 8.24.040(A)(9)(a) (2002).

(680) 42 U.S.C. [section] 9607(a)(4)(A) (2000).

(681) Id. [section] 9607(a)(4)(B).

(682) Fireman's Fund, 302 F.3d at 954.

(683) LODI, CAL., MUNICIPAL CODE [section] 8.24.050 (2002).

(684) Id. [section] 8.24.090(B)(1).

(685) CAL. INS. CODE [section] 11580(b)(2) (2002).

(686) E.g., Tashire v. State Farm Fire & Cas. Co., 363 F.2d 7, 10 (9th Cir. 1966), rev'd on other grounds, 386 U.S. 523 (1967) (finding that under California law direct action against an insurer must wait until there has been a final judgment against the insured).

(687) Suter v. City of Lafayette, 57 Cal. App. 4th 1109, 1112 (1997).

(668) Fireman's Fund, 302 F.3d 928, 957 (9th Cir. 2002), amended by 2002 WL 31246702 (9th Cir. 2002). (quoting Fireman's Fund). "[U]nder Ex [p]arte Young ... 'the Eleventh Amendment does not bar actions seeking only prospective declaratory or injunctive relief against state officers in their official capacities.'" Id. at n.28 (quoting L.A. County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).

(689) National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. [subsection] 668dd-668ee (2000).

(690) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(691) Id. [subsection] 703-712.

(692) 7 U.S.C. [subsection] 426-426c (2000).

(693) CAL. FISH & GAME CODE [section] 3003. 1(c) (West 2003).

(694) U.S. CONST. amend. XI.

(695) California asserted that it did not fall within an exception to sovereign immunity because that exception, known as the Ex parte Young exception, required a showing of imminent harm. Ex parte Young, 209 U.S. 123, 156-60 (1908).

(696) 209 U.S. 123 (1908).

(697) The Ninth Circuit cited several cases which applied the Ex parte Young exception to declaratory judgment scenarios, including Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000).

(698) 504 U.S. 555 (1992).

(699) Id. at 560-61.

(700) Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 850 (9th Cir. 2002).

(701) U.S. CONST. art. VI, [section] 1, cl. 2.

(702) 16 U.S.C. [section] 1532(3) (2000) (defining conservation to include the "use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which ... [the protections provided by the ESA] are no longer necessary").

(703) U.S. CONST. art. IV, [section] 3, cl. 2.

(704) Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002) (holding that section 668dd(m) of the NWRSIA reflects Congress's intent that principles of preemption should apply when state regulations conflict with the Act).

(705) FED. R. CIV. P. 12(b)(6).

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

(707) 42 U.S.C. [section] 2210 (2000).

(708) O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1143 (9th Cir. 2002).

(709) 42 U.S.C. [section] 9658 (2000).
   In the case of any action brought under State law for personal
   injury ... caused or contributed to by exposure to any hazardous
   substance, or pollutant or contaminant ... if the applicable
   limitations period for such action ... provides a commencement date
   which is earlier than the federally required commencement date,
   such period shall commence at the federally required commencement
   date in lieu of the date specified in such state statute.


Id. [section] 9638(a)(1).

(710) O'Connor, 311 F.3d at 1144.

(711) United States v. Kubrick, 444 U.S. 111,113 (1979).

(712) Jolly v. Eli Lilly & Co., 751 P.2d 923, 927 (Cal. 1988).

(713) O'Connor, 311 F.3d at 1150.

(714) Id.

(715) Bibran v. Pac. Northwest Research Found., Inc., 188 F.3d 1105, 1109 (9th Cir. 1999), amended by 208 F.3d 831 (9th Cir. 2000).

(716) O'Connor, 311 F.3d at 1150 (quoting Maughan v. Southwest Servicing, Inc., 758 F.2d 1381, 1385 (10th Cir. 1985)).

(717) Id. at 1151.

(718) "Plaintiffs introduced evidence of extensive publicity between 1989 and 1996 warning that a variety of products--from tobacco, pesticides and diesel fuel to peanut butter, nail polish, cellular telephones and radar guns--were potential causes of cancer." Id.

(719) Id.

(720) Id. at 1155.

(721) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1887 (2000).

(722) OR. REV. STAT. [section] 183.430(1) (2001) (extending a shield from liability for discharging pollutants while a renewal is pending).

(723) 33 U.S.C. [section] 1311(a) (2000).

(724) OR. ADMIN. R. 340-045-0030(1) (2001).

(725) OR. REV. SWAT. [section] 183.430(1) (2001).

(726) ONRC Action v. Columbia Plywood, Inc., 26 P.3d 142 (Or. 2001).

(727) ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1143 (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985 (9th Cir. 2000)).

(728) 40 C.F.R. [section] 135.3(a) (2001).

(729) 493 U.S. 20 (1989).

(730) ONRC Action, 286 F.3d at 1143 (stating two policies behind strict notice as to give the violator a chance to rectify the problem and give the agency a chance to take remedial action, making the citizen suit unnecessary).

(731) Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002).

(732) Id.

(733) Id.

(734) Title XXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. No. 102-575, 106 Stat. 4600, 4706-31. This statute provides that the Project "shall be operated in accordance with all obligations under state and federal law." Cent. Delta Water Agency, 306 F.3d at 944. In addition, the statute requires the Bureau to develop a program to ensure sustainability of anadramous fish in Central Valley rivers and streams, manage 800,000 acre-feet of Project waters for fish and wildlife habitat restoration, and develop a plan to acquire water. Id. at 945. "In short, the Act demands that the Project implement a significant fish habitat protection program, but that it do so in accordance with the applicable state water use permits." Id.

(735) Cent. Delta Water Agency, 306 F.3d at 945.

(736) Id.

(737) 504 U.S. 555 (1992).

(738) Cent Delta Water Agency, 306 F.3d at 946 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

(739) Id. at 947 (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998)).

(740) 432 U.S. 333 (1977).

(741) Cent. Delta Water Agency, 306 F.3d at 951 (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)).

(742) Id.

(743) Id. at 952.

(744) Id. (quoting Fund for Animals v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992)).

(745) Id. at 954 (Fernandez, J., dissenting).

(746) Id. (quoting Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
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Title Annotation:2002 Ninth Circuit Environmental Review
Publication:Environmental Law
Date:Jun 22, 2003
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