1. Northwest Resource Information Center, Inc. v. Northwest Power and Conservation Council, 730 F.3d 1008 (9th Cir. 2013).
The Northwest Resource Information Center (NRIC) (209) challenged the Sixth Northwest Power Plan (Plan), as promulgated by the Northwest Power and Conservation Council (Council), (210) claiming the Plan did not give due consideration to the accommodation of fish and wildlife interests. Hearing the case directly, the Ninth Circuit affirmed the Plan with respect to NRIC's "due-consideration" challenge, but remanded it to the Council to 1) allow for public notice and comment on the proposed environmental cost-benefit methodology, and 2) to reconsider the inclusion of a market price-based estimate of accommodating fish and wildlife interests.
Enacted in 1980, the purpose of the Pacific Northwest Electric Power Planning and Conservation Act (Power Act) (211) is to resolve the conflicts between the Columbia River Basin's two great natural resources: hydropower and salmon. The Power Act established the Council, which promulgates regional conservation and electric power plans, (212) as well as a program to protect, mitigate, and enhance fish and wildlife. (213) While these two programs were intended to exist independently, the latter includes a fish and wildlife program. (214) As a result, in adopting the Plan in February 2010, the Council laid out biological objectives, principles, and strategies designed to benefit fish and wildlife. However, the Council did not prescribe specific operations for fish and wildlife as it had in the past, determining that agencies operating dams had already produced plans to improve fish and wildlife conditions.
NRIC took issue with this decision and filed a timely petition to challenge the Plan. Finding the Plan to be a final action subject to judicial review, the Ninth Circuit heard the case directly, (215) and subsequently allowed the Bonneville Power Administration, (216) Northwest River Partners, (217) and the Public Power Council (218) to intervene and file response briefs. The Ninth Circuit reviewed the Council's adoption of the Plan under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard. (219)
NRIC first argued that the Plan failed to give due consideration to fish and wildlife interests because it failed to independently consider the needs of anadromous fish. The Council agreed that such consideration was a serious substantive obligation and even noted that in the past it had recognized such consideration as part of the Power Act's fish and wildlife program mandate. However, the Council countered that it had in fact given fish and wildlife interests their due consideration for three reasons: 1) it evaluated many power resource scenarios; 2) it developed an accommodated plan for the fish and wildlife program; and 3) it considered effects of potential new power resources on environmental quality, fish, and wildlife.
The Ninth Circuit rejected the first two explanations, but accepted the third. The Ninth Circuit dismissed the first explanation because the Council had failed to show how the two analyzed power resource scenarios were relevant. Further, the Ninth Circuit reasoned that post hoc reliance on alternatives not designed for due consideration would not fulfill the statute's requirement for due consideration. The Ninth Circuit dismissed the second suggested method because the fish and wildlife program the Council adopted was statutorily mandated and thus could not qualify as fulfilling the other independent obligation. (220) The Ninth Circuit upheld the reasonableness of the third explanation because the Power Act's due consideration requirement was aimed specifically at new power resource acquisitions, not existing ones. Therefore, the Ninth Circuit held that the Council was not obligated to reconsider the fish and wildlife measures adopted in the fish and wildlife program in order to satisfy the due consideration requirement.
NRIC next made two arguments regarding the methodology the Council used in the Plan. First, NRIC argued that by failing to include a clear methodology for evaluating environmental costs and benefits in the draft version, the Plan was arbitrary, capricious, and contrary to the statute. Second, NRIC argued that the methodology included in the final version of the plan was inadequate. The Council conceded that its failure to include its methodology in the draft plan was an "unfortunate error." (221) However, the Council characterized the omission as an irrelevant procedural point, which was harmless because the methodology was self-evident. Furthermore, the Council noted that NRIC's proposed methodology would not have been adopted, even with more notice and comment procedures. The Ninth Circuit held that the Council's post hoc litigation position was insufficient to demonstrate the error had no bearing on the procedure for or substance of the decision. Therefore, the Ninth Circuit remanded the Plan to the Council for the limited purpose of using an appropriate notice and comment period to adopt a methodology.
Finally, NRIC argued that the Council's decision to include an "inflated" cost estimate of the fish and wildlife program while removing a much lower estimate was arbitrary and capricious. The Council countered that the estimate had no bearing on the development of the Plan. The Ninth Circuit held that Council's argument did not address whether the action was arbitrary. Finding no other basis for the Council's decision, the Ninth Circuit remanded the Plan to the Council to either include a reasoned basis for the estimate or remove it. (222)
In sum, the Ninth Circuit affirmed the Plan with regard to the due consideration challenge, but remanded the Plan to the Council for the limited purposes of 1) proceeding through proper notice and comment on the methodology for determining environmental costs and benefits, and 2) reconsidering the inclusion of the fish and wildlife cost estimate.
H. Alaska National Interest Lands Conservation Act
1. John v. United States, 720 F.3d 1214 (9th Cir. 2013).
This litigation concerned two consolidated challenges to the 1999 Final Rules (1999 Rules), which regulate the implementation of the Alaska National Interest Lands Conservation Act (ANILCA). (223) The Secretary of the Interior and the Secretary of Agriculture (the Secretaries) promulgated the 1999 Rules to designate which navigable waters within Alaska constitute "public lands" under ANILCA. The first challenge, brought by Plaintiff-Appellants Katie John et al., (Katie John) alleged that the 1999 Rules are too narrow. The second challenge, brought by Plaintiff-Appellant the State of Alaska (Alaska), claimed that the 1999 Rules are overly broad. The Ninth Circuit affirmed the district court and upheld the 1999 Rules against both challenges.
ANILCA's two fundamental objectives are 1) to preserve and protect nationally significant landscapes, and 2) to protect rural residents who maintain a subsistence way of life and to ensure that the resources upon which they depend are adequately available. (224) Consequently, ANILCA provides that fish and game activities conducted for "nonwasteful subsistence uses" should be given priority over those performed for other purposes. (225) This federal priority applies to all public lands, which are defined as "lands situated in Alaska which, after December 2, 1980, are Federal lands." (226) The Secretaries are responsible for implementing the rural subsistence priority under ANILCA, but are able to implement priorities only where the State has not already done so. (227) In 1978, prior to ANILCA's adoption, Alaska granted subsistence users fish and game priority under state law. Regulations promulgated by the state Joint Boards of Fish and Game initially connected subsistence fishing to geographic communities, and eventually included a "rural" criterion for priority. (228) In 1982 the Secretary of the Interior certified Alaska, allowing it to manage subsistence hunting and fishing under ANILCA.
The addition of the "rural" element to the subsistence priority created interpretive difficulties for the State of Alaska and ultimately resulted in the Department of the Interior's (DOI) denial of recertification. Three primary cases dealt with this issue. In 1985, the Alaska Supreme Court held in Madison v Alaska Department of Fish and Game that statutory preference should be given to subsistence users regardless of whether their place of residence qualified as rural. (229) As a result of this holding, DOI presented Alaska with an ultimatum: bring its subsistence use policy back into compliance with ANILCA by June 1, 1986, or lose its authority under ANILCA. (230) In response, Alaska amended its subsistence statute, limiting the definition of subsistence activities to people residing in rural areas of the state. The Alaska legislature defined "rural area" as an area of the state where the typical consumption of fish and game for noncommercial purposes is indicative of the economy. (231)
This limited definition of "rural" led to the second relevant case, Kenaitze Indian Tribe v. Alaska. (232) Under the amended statute, the Kenai Peninsula was not classified as rural because it had amenities common to nonrural areas, such as shopping centers and grocery stores. The Ninth Circuit reasoned that because the Kenai Peninsula was nowhere near urban, the state's definition of "rural" was too narrow. (233) The court held that "rural" should include communities smaller than 2,500 people, or towns or cities outside of urban areas not exceeding certain limits. (234) The Ninth Circuit's interpretation extended ANILCA's priority to people in small communities regardless of their dependence on fish and game for subsistence.
Several months later, in McDowell v. State, the Alaska Supreme Court held that the portion of the Alaska Code designed to comply with ANILCA did not satisfy state constitutional requirements that provided for equality of access to fish and game among those similarly situated. (235) The state was subsequently denied recertification by the federal government.
In 1992, the Secretaries defined "public lands" under ANILCA to exclude all navigable waters. (236) Consolidated lawsuits brought against the Secretaries' interpretation are known as Katie John I. (237) In Katie John I, the Ninth Circuit concluded that the Secretaries' definition of public lands was untenable because ANILCA included fishing. (238) Yet the Ninth Circuit did not agree with the plantiffs' contention that all navigable waters should be included. (239) The Ninth Circuit held only that "some" navigable waters should be included and placed the burden of determining which waters were included on the federal agencies administering the priority. (240)
In response to Katie John I, the Secretaries issued the 1999 Rules. The 1999 Rules made the Federal Subsistence Management Program in Alaska applicable only in locations where there are federally reserved water rights. The 1999 Rules also identified federal land units where such reserved water rights exist. In 2000, the district court issued an order readopting Katie John I on its merits and dismissing the case. However, because no opinion garnered a majority of the Ninth Circuit on the appeal from the district court, Katie John I remained controlling. (241)
In the case at hand, the Ninth Circuit addressed three threshold matters: the federal water rights doctrine (water doctrine), the standard of review, and rulemaking. The water doctrine constrains Alaska's right to land underneath navigable waters by guaranteeing that "reservations" will be afforded use of all water necessary to serve the purposes for which they were created. (242) The water doctrine had been previously used to address only the quantity of water necessary to satisfy a reservation's purpose, not the location of the water sources. The Ninth Circuit stated that the water doctrine was ill-suited for this novel approach, but that its application was necessary because Katie John I remained controlling.
With regard to the standard of review, the Ninth Circuit determined that this case presented a question of law to be reviewed de novo. The Court also stated that Chevron deference was applicable to interpretations of ambiguities within ANILCA. However, the Court specified that only "some deference" would be given due to the novel issues involved and the fact that ANILCA is a substantive statute. (243)
As to the rulemaking process, the Ninth Circuit held the Secretaries appropriately used notice and comment rulemaking to determine which
waters were "public lands" under ANILCA. Alaska had argued the Secretaries were required to use adjudication to define "public lands" under ANILCA. However, the Ninth Circuit rejected this argument because the Secretaries were not claiming water rights or diminishing Alaska's right over the water. The Ninth Circuit clarified that future water rights litigation was not precluded by the 1999 Rules.
The Ninth Circuit next addressed the Secretaries' identification of certain waters as "public lands." Alaska first argued that the Secretaries wrongly included waters adjacent to reservations in their definition of public lands. The Ninth Circuit disagreed, reasoning that the United States is allowed to reserve waters appurtenant to reserved land under the water doctrine. The Ninth Circuit explained that the question under ANILCA is not where the waters are located, but rather whether they are appurtenant to reserved lands.
Alaska next argued that the Secretaries should not have included certain specific bodies of water as public lands under ANILCA. The Ninth Circuit addressed each body of water. First, Alaska argued that because the Native Village Corporation primarily owned the shoreline of Sixmile Lake, the lake did not touch federally reserved land and could not be considered public land. However, the Ninth Circuit pointed out that according to a map of the Lake Clark National Park and Preserve, the Park abuts the shoreline of the lake. Because ANILCA provides that maps should control in conflicts of this nature, the Ninth Circuit held that the Secretaries properly concluded that Sixmile Lake was appurtenant to the reservation.
Next, Alaska challenged the Secretaries's declaration that seven Juneau-area streams were public lands. The parties offered differing maps placing the streams within and outside of the boundaries of the Tongass National Forest. The Ninth Circuit concluded that it was not unreasonable for the Secretaries to rely on one map rather than another. Thus, the inclusion of the streams as public lands was reasonable.
Alaska also challenged the inclusion of water located on inholdings as public lands. The Ninth Circuit reasoned that the United States does not lose acquired water rights in a reservation when it sells land within that reservation. So long as those waters are necessary to fulfill the primary purpose of the federal lands based on their location, it is reasonable for them to be categorized as public lands.
Finally, Alaska challenged the Secretaries' use of the headland-to- headland method. In the 1999 Rules, "inland waters" were defined as "those waters located landward of the mean high tide line or the waters located upstream of the straight line drawn from headland to headland across the mouths of rivers or other waters as they flow into the sea." (244) The headland- to-headland method was necessary to distinguish between inland waters and marine waters because federal water rights are not applicable to the latter. The Ninth Circuit determined this classification was reasonable because the headland-to-headland method includes tidally influenced waters physically connected to inland waters of reservations.
Katie John first argued that upstream and downstream waters should be included as public lands because of the potential impact such waters could have within the reservation. The Ninth Circuit upheld the Secretaries' exclusion of upstream and downstream waters because of the limited nature of the water doctrine, the purposes of the reserved lands in question, the limited nature of the subsistence priority, as well as the holdings of Katie John I and II The Ninth Circuit explained that ANILCA's authority outside of reservations applied only to navigable waters where the United States had reserved rights. (245) Substistence use is a public interest and not among the primary purposes for which the reserves were established. Therefore, the Ninth Circuit held that the Secretaries did not act in an arbitrary or capricious manner in excluding upstream and downstream waters from the rural subsistence priority.
Katie John also argued that Alaska Native Allotments should be universally classified as public lands. The 1999 Rules do not include waters appurtenant to reservation allotments within "public lands," but allows the Federal Subsistence Board to recommend such waters to be included as public lands. The Ninth Circuit agreed with the Secretaries that the allotments had a unique and complex legal nature, and therefore held that the Secretaries reasonably concluded that waters appurtenant to the allotments should be analyzed on a case-by-case basis.
Finally, the State challenged the application of the subsistence priority to "selected-but-not-yet-conveyed-lands" (not-yet-conveyed-lands). (246) The Ninth Circuit acknowledged that the Secretaries' administration of the subsistence priority over not-yet-conveyed-lands forced the Secretaries to consider differing obligations.
The Secretaries resolved these competing directives in favor of administering priority to the not-yet-conveyed-lands. The Ninth Circuit concluded that although the Secretaries extended the subsistence priority beyond "public lands," their interpretation and application was reasonable. Forcing the Secretaries to determine the geographic sections in which the priority would not apply would be unduly burdensome and converse to the law's intent. The Ninth Circuit held this was a permissible construction of the statute.
I. California Global Wanning Solutions Act
1. Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) (Part I).
Rocky Mountain Farmers Union (Rocky Mountain) and American Fuels & Petrochemical Manufacturers Association (American Fuels) (247) brought separate actions in the District Court for the Eastern District of California against the California Air Resources Board (CARB), (248) challenging regulations that CARB promulgated pursuant to the state's Global Warming Solutions Act. (249) Rocky Mountain and American Fuels alleged that the regulations (the Low Carbon Fuel Standard or LCFS) violated the Dormant Commerce Clause and were otherwise preempted by the Federal Renewable Standard of the Clean Air Act. (250) The district court concluded that the LCFS facially discriminated against ethanol produced out of state, discriminated against crude oil produced out of state in purpose and effect, regulated out of state ethanol impermissibly, and was not rendered permissible by California's Clean Air Act preemption waiver. Therefore, the district court granted summary judgment to American Fuels on its Commerce Clause claims, and a preliminary injunction to Rocky Mountain enjoining the application of the LCFS regulations to Rocky Mountain. On appeal, the Ninth Circuit held that the LCFS regulations did not discriminate in either of the manners found by the district court, and that the LCFS regulations did not violate the Dormant Commerce Clause.
Under section 209(a) of the Clean Air Act, Congress specifically granted California a preemption waiver for the regulation of motor vehicle emissions. (251) In 2006, California passed the Global Warming Solutions Act, which recognized that global warming threatened the people and environment of California," (252) and instructed CARB to regulate the transportation sector in such a way as to obtain 1990 greenhouse gas (GHG) levels. (253) CARB subsequently promulgated the LCFS.
The LCFS requires fuel blenders to maintain average carbon intensities below certain standard limits. The carbon intensity of any given fuel is calculated based on the estimated GHG emissions released when the fuel is produced, transported, and refined. (254) Each fuel can create credits by being below the carbon intensity standard, and deficits for being above the standard. These credits are openly traded in California, used to offset deficits, or saved for future offsets.
CARB adopted the 2010 average carbon intensity for the gasoline market as the cap for the carbon intensities of fuels used for transportation in California, with the cap declining annually. (255) Regulated entities may comply with reporting requirements by employing one of several default pathways that assign average values for carbon intensity based on fuel characteristics. Also, regulated entities may request individualized replacements from the default pathway averages, or they may propose an entirely new pathway for the fuel. CARB assigns carbon intensity factors based on the location in which the fuel was produced. This location-based accounting reflects the typical methods employed in the area where fuel is created.
The subject of American Fuels' portion of the suit were the provisions that would become applicable on January 1, 2011 (the 2011 provisions), which implemented carbon intensity caps for crude oil and derivatives. The 2011 provisions did not allow CARB to assign a carbon intensity level below the market average for a crude oil or derivative, and required CARB to assign individual carbon intensity levels to new sources generating higher GHGs than the market average. The 2011 provisions also categorized crude oil according to its status as either an "existing" or "emerging" source, and whether it was a high-carbon intensity crude oil (HCICO) or not. HCICOs were sources that created emissions of more than fifteen grams of carbon dioxide equivalent per mega joule (gC[O.sub.2]e/MJ) throughout the course of extraction, production, and transportation. Emerging sources were those that did not make up at least two percent of the crude oil market in California in 2006, and the remaining sources were classified as "existing." The 2011 provisions assigned all existing sources the carbon intensity average of the 2006 California crude oil market, 8.07 gC[O.sub.2]/MJ.
Before the Ninth Circuit, American Fuels and Rocky Mountain argued that the ethanol and crude oil provisions of the LCFS violated the Dormant Commerce Clause by discriminating against fuels produced out of state and regulating activity out of state. CARB responded that the Clean Air Act [section] 211(c)(4)(B) authorized the LCFS. The Ninth Circuit first determined that all ethanol fuels were proper for comparison because the fuels all compete within the California market and have the same physical structure. Subsequently, the Ninth Circuit held that the LCFS did not discriminate based on origin, but rather on the carbon intensity of the respective ethanol produced in different locations. Origin was considered only to the extent that it affected GHG emissions. Therefore, because LCFS had a nondiscriminatoiy purpose, the Ninth Circuit held the LCFS regulations did not violate the Dormant Commerce Clause.
American Fuels and Rocky Mountain further argued that certain factors in determining carbon intensity were inherently discriminatory. The district court had determined that any factor based on origin was based on geography, and thus was facially discriminatory. However, the Ninth Circuit found this reasoning incorrect. The Ninth Circuit explained that consideration of the increased GHG emissions associated with a fuel origin is a critical factor to consider because it affects carbon intensity. Further, the Ninth Circuit found that global warming presents a harm that California may attempt to prevent, until the Supreme Court or Congress determine otherwise. Therefore, the Ninth Circuit deemed that carbon intensity factors based on origin were not inherently discriminatory.
American Fuels and Rocky Mountain also argued that carbon intensity factors based on transportation and electricity were impermissible due to their basis on origin. With regard to the transportation factor, the Ninth Circuit distinguished the cases American Fuels and Rocky Mountain relied upon, because in those cases, the regulations at issue were intended to protect local business. The use of transportation-based factors in the LCFS, conversely, applied evenly to all pathways and measured real differences in harmful effects.
With regard to electricity, the Ninth Circuit determined that producers, specifically in the Midwest, were able to generate their own electricity--thus the source of electricity was not as closely related to origin as Plaintiffs argued. Further, the Ninth Circuit determined that the Dormant Commerce Clause does not require that competitors in the market must be able to compete at their easiest convenience. Thus, the Ninth Circuit held that considering transportation and electricity-source based factors was not impermissible.
American Fuels also argued that consideration of both the transportation and electricity factors prevented producers from reaping earned economic advantages, and promoted production within California at higher costs. American Fuels contended that Midwest producers earned an economic advantage by producing fuel near cheap energy sources. The Ninth Circuit determined that, to the contrary, the carbon intensity factors focused upon this advantage by looking to the emissions created by production methodologies. Further, the Ninth Circuit held that building a production facility near a cheap energy source is not an economic advantage that is "earned" under the case cited by American Fuels. Rather, the only energy source that is earned by some Midwest producers is produced in house, which creates viable benefits that are respected in the carbon intensity analysis. Finally, the Ninth Circuit determined that the LCFS did not encourage in state production at a higher cost, because costs would be saved by choices in methods of production. This meant that the use of the electricity and transportation factors provided a more accurate depiction of the real costs of producing ethanol from a given source. Thus, te Ninth Circuit found no discrimination where the factors themselves furthered the intent of the regulation, which was to reduce GHG emissions.
Next, the Ninth Circuit addressed CARB's use of regional categories as one of the bases for the default pathways to satisfy the Fuel Standard's reporting requirements. Rocky Mountain and American Fuels first argued that averaging producers' carbon intensities by region is facially discriminatory because a Midwest producer must undergo an individualized application process to qualify for the same regulatory value that a comparable California producer qualifies for by default. They argued that CARB therefore drew one of the regional categories along state lines, which was facially discriminatory. The Ninth Circuit held: 1) CARB treats all ethanol within each regional category the same; and 2) CARB's division of one of the regional categories along its boundary is not facially discriminatory. The Ninth Circuit reasoned that although CARB averages carbon intensity according to region, it gives each regional category the same treatment, and consequently, California producers are not uniformly benefited, and Midwest producers are not uniformly burdened.
The Ninth Circuit then addressed whether the 2011 Provisions discriminated against out-of-state crude oil in purpose and effect. American Fuels argued that despite the fact that some in-state competitors were also burdened, the law nonetheless discriminated against out-of-state competitors. (256) The Ninth Circuit held that the 2011 Provisions have no protectionist purpose or effect. The Ninth Circuit reasoned that the 2011 Provision does not benefit any exclusively local concern, and it both burdens and benefits in state producers. Therefore, the court found no cause to doubt CARB's stated purpose and found no discriminatory intent.
Also, American Fuels provided no evidence of discriminatory effect because it failed to present the "substantial evidence" necessary to satisfy the high burden required to apply higher level of scrutiny, and the burden of proof did not shift to CARB to prove that it did not have discriminatory intent. (257)
The Ninth Circuit next decided whether the practical effect of the Fuel Standard was to regulate extraterritorial conduct. The district court had determined that: 1) looking to the lifecycle emissions of fuels was an attempt to control out-of-state conduct; 2) adopting state regulation to account for the global carbon emissions of fuels used in state was an illegal expansion of state police power; 3) the Fuel Standard infringed on the channels of interstate commerce by compelling producers to notify CARB of alterations in their transportation routes to qualify for an individualized pathway; and 4) if every state adopted similar regulations, the result would be "economic Balkanization."
The Ninth Circuit held, however, that the Fuel Standard does not regulate beyond California's borders, and does not economically Balkanize fuel standards. The Ninth Circuit reasoned that California properly based its regulation on the properties of fuel that would inflict harm, rather than to control fuel production or sale outside of the state. The court also noted that the reporting requirements out-of-state producers must meet before making in-state sales were not the same as regulating out-of-state transactions. (258) Finally, the court reasoned that the transportation factor encourages ethanol producers to locate near feedstocks, (259) not consumers, which would render the adoption of similar regulation elsewhere complimentary rather than antagonistic. (260) The Ninth Circuit noted that, as long as each state controls fuel consumed only in its own borders, producers will not be held to inconsistent regulations at one time.
Last, the Ninth Circuit addressed the issue of whether the savings clause in section 211(c)(4)(b) of the Clean Air Act is an express exemption from Commerce Clause scrutiny. CARB argued that it is, because the clause exempted California from preemption of state law regarding fuels or fuel additive for purposes of motor vehicle control under section 211(c)(4)(a). The Ninth Circuit, however, determined that California's exemption from the application of section 211(c)(4)(a) was limited to that specific preemption and did not provide for an exemption from Commerce Clause scrutiny. (261)
In sum, the Ninth Circuit concluded that all ethanol sources did compete in California's market and that the LCFS did not discriminate against out-of-state ethanol. The Ninth Circuit held that the LCFS's ethanol provisions were not facially discriminatory, because the regulatory reference to state borders arose from legitimate state regulatory goals, rather than intentionally from protectionist goals. Additionally, the Ninth Circuit held the 2011 Provisions are not facially discriminatory. The Ninth Circuit reasoned that CARB's stated purpose in promulgating the 2011 Provisions was genuine, and there was no evidence of discriminatory effect because instate businesses were equally burdened and benefited by the Fuel Standard. The Ninth Circuit also held that the Fuel Standards are not an impermissible extraterritorial regulation, because they regulate transactions only within the state. The Ninth Circuit also held that the CAA savings clause is not an express exemption from Commerce Clause scrutiny, because it extends no further than to exempt California from section 211(c)(4)(a).
Therefore, the Ninth Circuit remanded the case for the district court to determine whether the ethanol provisions discriminate in purpose or effect, to apply the Pike balancing test to the ethanol provisions to it and the 2011 Provisions, and to vacate the preliminary injunction. (262)
Judge Murguia filed a separate opinion, concurring with the court's opinion on the crude oil regulations and preemption under the CAA and dissenting on the holding that ethanol regulations are facially discriminatory. She argued that determining whether a regulation facially discriminates against interstate commerce should involve only a contemplation of its plain language. Because Table 6 differentiates between in-state and out-of-state ethanol sources and prefers the former, Judge Murguia would have held that it is facially discriminatory.
A. National Environmental Policy Act
1. Native Village of Point Hope v. Jewell, 740 F.3d 489 (9th Cir. 2014).
The Native Village of Point Hope (Village) (263) filed this action in the U.S. District Court for the District of Alaska against Sally Jewell, in her capacity as the Secretary of the Interior, and other Defendants (collectively, Defendants). (264) The Village alleged that the Bureau of Ocean Energy Management (BOEM) abused its discretion when it did not account for essential missing information in its final environmental impact statement (FEIS) for an offshore oil and gas development proposal. Additionally, the Village alleged that BOEM acted arbitrarily and capriciously when it assumed that oil development would result in one billion barrels of oil. On appeal, the Ninth Circuit affirmed the district court's grant of summary judgment to Defendants regarding the essential missing information, but reversed the district court's grant of summary judgment to Defendants regarding the one billion barrel potential economic recovery estimate.
The Village is a tribal government located on the coast of the Chukchi Sea in northwestern Alaska. (266) The Chukchi Sea is the southern arm of the Arctic Ocean between Alaska and Russia. It provides habitat for a wide variety of animals, including some listed under the Endangered Species Act (ESA). (266) After completing its five-year leasing plan, BOEM decided to lease a large portion of the Chukchi Sea for offshore oil and gas development. In compliance with the National Environmental Policy Act (NEPA), (267) BOEM prepared an FEIS, which analyzed multiple alternatives for the lease. (268) Upon the recommendation of BOEM, and against the recommendation of the National Marine Fisheries Service, the Secretary of the Interior selected a lease sale that excluded only 795 blocks along a corridor between twenty-five and fifty miles from the coast.
After the lease sale went forward, the Village filed its initial lawsuit, alleging seven deficiencies with the FEIS. (269) The parties cross-moved for summary judgment and the district court granted summary judgment in favor of the Village. The district court explained that BOEM: 1) failed to analyze the environmental impact of natural gas development; 2) failed to determine whether the missing information was essential; and 3) failed to determine whether the cost of obtaining such information was exorbitant or unknown. Therefore, the district court issued a limited injunction and remanded to BOEM for further consideration. On remand, BOEM prepared a supplemental environmental impact statement (SEIS), which addressed the environmental impact of natural gas exploration and the "information gaps" identified in the FEIS. After the Secretary again elected to drill, the Village filed a second suit in the U.S. District Court for the District of Alaska and BOEM moved for summary judgment. The district court granted BOEM's motion for summary judgment. On appeal, the Ninth Circuit reviewed BOEM's FEIS under the arbitrary and capricious standard.
The Village first argued the FEIS and SEIS lacked essential information about endangered or threatened animal species' population levels, locations, feeding and breeding habits and their vulnerabilities to drilling operations. BOEM argued that the information was not essential to a reasoned choice among alternatives because regardless of the choice, the impact of an oil spill would be severe. Additionally, BOEM argued that other statutory requirements, such as those found in the Clean Air Act, (270) the Marine Mammal Protection Act, (271) the ESA, and NEPA, (272) would provide adequate protection for the various species. Finally, BOEM relied on the wording in the SEIS that recognized that certain items presently missing would be known at a later stage and promised to thoroughly review the specific production and production plans when they arrived. The Ninth Circuit held that BOEM was reasonable in concluding that the missing information was not essential to informed decision making at the lease sale stage. The Ninth Circuit agreed that compliance with other statutes would provide adequate protection for animals in the Chukchi Sea and concluded that further environmental analysis would be appropriate at a later stage.
Second, the Village argued that BOEM's assumption that one billion barrels of oil would be economically recoverable from Lease Sale 193 was arbitrary and capricious. BOEM initially chose a one billion barrel estimate because the agency lacked sufficient information to give an estimate for the entire project. BOEM based its estimate solely on the potential recovery of the first field production. BOEM explained that there was only a ten percent chance that development would occur at all due to the remoteness of the region. The Ninth Circuit held that BOEM's decision to use one billion barrels in the FEIS was arbitrary and capricious for three reasons. First, the Ninth Circuit reasoned that BOEM had not justified its use of the lowest possible amount of oil that was economical to produce. The Ninth Circuit found BOEM's assumption of a ten percent chance of commercial oil development both baseless and irrelevant. Second, the Ninth Circuit reasoned that BOEM failed to consider variation in oil prices. The Ninth Circuit noted that any increase in oil prices vastly increased the likelihood of production from the project. Third, the Ninth Circuit reasoned that it was arbitrary for BOEM to use only the first field in its analysis. As BOEM had itself found, once "the first project overcame] the cost, logistical, and regulatory hurdles, more projects [are] ... likely to follow."" (273) Finally, the Ninth Circuit also dismissed Defendant's contention that any error resulting from the use of the one billion barrel estimate could be corrected through subsequent site-specific EISs. The Ninth Circuit held that the appropriate time to estimate the total oil production for an EIS was at the time of the lease sale itself.
In conclusion, the Ninth Circuit held that BOEM's FEIS and SEIS did not unreasonably lack essential information, but held that BOEM's reliance on a one billion barrel estimate for Lease Sale 139 was arbitrary and capricious. The Ninth Circuit reversed the district court's ruling and remanded the case for further proceedings consistent with the opinion. Writing in dissent, Circuit Judge Rawlinson disagreed with the majority's holding that BOEM's use of a one billion barrel benchmark was arbitrary, due in large part to his belief that the agency was due greater deference.
2. Jones v. National Marine Fisheries Service, 741 F.3d 989 (9th Cir. 2013).
The Bandon Woodlands Community Association (Woodlands) (274) filed this action in the United States District Court for the Western District of Washington (275) against the Army Corps of Engineers (the Corps). (276) Woodlands alleged that the Corps violated the National Environmental Policy Act (NEPA) (277) when it issued a mining permit to the Oregon Resources Corporation (ORC) without preparing a full environmental impact statement (EIS). The district corn! granted summary judgment in favor of the Corps. On appeal, the Ninth Circuit reviewed the district court's determination de novo. The Ninth Circuit upheld the district court's decision, ruling that the Corps' Finding of No Significant Impact (FONSI) was not arbitrary or capricious.
ORC had submitted an application for a mining permit to the Corps pursuant to section 404 of the Clean Water Act (CWA) (278) because the mining project would require filling several acres of wetland. As part of the permitting process, the Corps was required to comply with NEPA. Pursuant to NEPA, the Corps prepared an environmental assessment (EA) and issued a FONSI.
Woodlands first argued that the EA did not adequately examine the possibility that the mining operation would generate hexavalent chromium, a toxic chemical, because it relied solely on "narratives of expert opinions." (279) Although the Ninth Circuit recognized that the EA consisted only of expert opinions, the Ninth Circuit held that the EA was sufficient because it incorporated underlying data by reference. (280)
Second, Woodlands argued that the FONSI was arbitrary and capricious because of uncertainty surrounding the impact of hexavalent chromium generation. Under NEPA, a full EIS is required when a project's effects are highly uncertain. (281) Therefore, Woodlands asserted that the Corps should have completed a full EIS. The Corps determined that the risk of generation of the hexavalent chromium was minimal because 1) there was no causal mechanism leading to an increase in the chemical and 2) the chemical makeup of the site favored attenuation over generation. (282) The Ninth Circuit accepted that argument and held that a full EIS was not necessary.
Woodlands also contended that the Corps impermissibly relied on monitoring and mitigation to avoid an EIS. Woodlands relied upon the Ninth Circuit's decision in Northern Plains Resource Council, Inc. v Surface Transportation Board, where the court ruled that the Transportation Board, which had failed to consider a railroad project's effects on sage grouse in approving the project, could not rely solely on monitoring a project to dismiss potential impacts. (283) However, the Ninth Circuit distinguished Northern Plains, because the Corps had determined that hexavalent chromium generation was unlikely, and monitoring ensured the accuracy of that determination. Further, the Ninth Circuit held that the Corps properly relied on mitigation measures contained in state permits.
Finally, Woodlands argued that the grant of the section 404 permit was arbitrary and capricious because the Corps did not conduct an adequate alternatives analysis. Woodlands contended that the Corps did not meet this requirement because it failed to consider smaller designs and because it improperly considered ORC's financing requirements as part of the analysis. The Ninth Circuit found that the EA indicated that mining individual smaller parcels would be insufficient because smaller parcels would not produce enough of the desired minerals. Regarding the consideration of ORC's financial requirements, the Ninth Circuit held that the Corps may consider the economic requirements of a project to determine whether alternatives are practicable. For these reasons, the Ninth Circuit held that the Corps complied with its alternative analysis requirements under the CWA.
B. Department of Transportation Act
1. Honolulutraffic.com v. Federal Transit Administration, 742 F.3d 1222 (9th Cir. 2014).
Honolulutraffic.com, along with a group of other Plaintiffs (collectively, Interest Groups), (284) brought this action against the Federal Transit Administration, along with various other state and federal agencies (collectively, Agencies), (285) under the National Environmental Policy Act (NEPA), (286) the National Historic Preservation Act (NHPA), (287) and section 4(f) of the Department of Transportation Act (DTO). (288) Interest Groups challenged the construction of a high-speed rail project (the Project) in Honolulu, Hawaii. The district court dismissed all of the Interest Groups' claims except for three of the section 4(f) claims, which the court remanded. Interest Groups appealed the dismissal of their claims, and the Agencies filed a motion to dismiss for lack of appellate jurisdiction. The Ninth Circuit affirmed the district court's dismissal.
The Ninth Circuit first addressed jurisdictional issues. The Agencies contended the district court's judgment was not appealable because it was not final. (289) Because neither party wished to revisit the remand order, the Ninth Circuit held that the Agencies' contention did not defeat jurisdiction of the dismissed claims. The Ninth Circuit emphasized that the case had always been about injunctive relief designed to halt the railway construction. Because all of the Interest Groups' claims were bases for injunctive relief, appellate jurisdiction was appropriate under 28 U.S.C. [section] 1292(a)(1), even though there was not technically a final order.
The Ninth Circuit then turned to the merits of the case, first addressing the NEPA claim. The Interest Groups claimed that the Agencies' environmental impact statement (EIS) was improper because it 1) unreasonably restricted the project's purpose and need, and 2) failed to consider reasonable alternatives to the steel-wheel-on-steel-rail fixed guideway system. The Ninth Circuit first acknowledged that agencies are granted "considerable discretion" in their statements of purpose and are judged according to a "reasonableness standard." (290) The Project's purpose was to provide public transportation in the east-west transportation corridor. The Ninth Circuit concluded that this purpose complied with necessary federal statutes and was not too narrow. Additionally, because the purpose would allow exploration of various technologies and routes, the Ninth Circuit held that the purpose was sufficiently broad.
The Interest Groups also asserted that the Agencies should have discussed alternatives previously rejected by the state. The Interest Groups specifically desired reconsideration of the three-lane managed lanes alternative (MLA), where one lane would cater to buses, another to high-occupancy vehicles, and the third to single occupant vehicles. However, agencies are not required to examine alternatives previously rejected in state studies. (291) Therefore, the Ninth Circuit determined that the Agencies' cost estimations were reasonable and the three-lane MLA option was appropriately rejected. The Interest Groups also requested review of a fight rail option excluded from the EIS. The Ninth Circuit held this option was also correctly rejected because creating a fight rail would necessitate the conversion of current roadways.
Finally, the Ninth Circuit examined the section 4(f) claims, which concerned the preservation of historical sites. The DTO allows use of historic sites for federal projects only when there is no prudent and feasible alternative and the program mitigates damage to the site. (292) The Interest Groups asserted that the Project violated this statute by refusing to adopt an alternative that would not utilize historic sites. The Ninth Circuit explained that section 4(f) requires documentation only to prove there is no feasible alternative; section 4(f) does not require a formal finding. (293) Therefore, the Ninth Circuit held that the Agencies properly relied on their previous findings and that a separate analysis for section 4(f) was not required.
The Interest Groups also claimed that the Agencies had acted improperly by failing to identify all affected sites through an Archaeological Inventory Survey (AIS). Section 4(f) also requires the identification and evaluation of historic sites as early as practicable in project development. (294) The Ninth Circuit recognized that because the exact route of the railway and placement of support columns had not been confirmed, the Agencies had good reason not to conduct an AIS. Instead, the Agencies conducted an Archeological Resources Technical Report, which included soil surveys, archeological records, and land surveys to identify burial sites and predict the likelihood of finding others. The Agencies also entered into an agreement with the State Historic Preservation Officer and others, outlining procedures for handling discovered burial sites. The Ninth Circuit thus found the Agencies made the requisite "reasonable and good faith effort" required by section 4(f). (295)
C. Water Rights and Water Management
1. Firebaugh Canal Water District v. United States, 712 F.3d 1296 (9th Cir. 2013).
Firebaugh Canal Water District and Central California Irrigation District (collectively, Firebaugh) brought actions for injunctive relief under the Administrative Procedure Act (APA296) and for damages under the Federal Tort Claims Act (FTCA297) against the U.S. Department of the Interior (DOI). (298) Firebaugh claimed that a lack of adequate drainage in part of the DOI-managed Central Valley Project (CVP) caused poor quality water to flow into its service area. Firebaugh alleged that DOI's failure to provide the necessary drainage constituted an agency action unlawfully withheld or unreasonably delayed and sought an order requiring DOI to immediately implement plans to stop migration of this water across the Firebaugh boundary. (299) Additionally, Firebaugh alleged that DOI's failure to provide drainage constituted a trespass and a nuisance and sought damages accordingly. The Ninth Circuit held that while DOI was obliged to provide drainage, its plan to achieve drainage was within its discretion and therefore beyond the scope of both the APA and the FTCA.
The CVP transfers water from the northern part of California's Central Valley to the arid southern part. As part of the CVP, the San Luis Act of 1960 authorized DOI to construct and maintain the San Luis Unit (the Unit) in order to irrigate approximately 500,000 acres in Merced, Kings, and Fresno counties. (300) Congress conditioned construction of the Unit on California's assurance that it would provide a master drain. If California declined, section 5 of the Act authorized DOI to enter into agreements and participate in construction and operation of local drainage facilities. California declined to provide a master drain, so DOI agreed to build the drain. However, Congress prohibited DOI from fixing the terminus of the drain to the Contra Costa delta until environmental standards were in place. (301) Therefore, upon completing the middle portion of the drain in 1975, DOI created Kesterson Reservoir as an interim output receptor. Due to elevated levels of selenium, DOI closed Kesterson in 1986. It did not stop transferring water, though, and as a result, poor quality water allegedly flows out of the Unit and into Plaintiffs' utility area.
Firebaugh argued that DOI was statutorily obligated to drain lands irrigated by the Unit. (302) The United States District Court for the Eastern District of California agreed and ordered DOI to promptly prepare, file, and pursue an application for a discharge permit to complete the interceptor drain. DOI appealed, and the Ninth Circuit affirmed in part, reversed in part, and remanded. (303) The resulting district court order still required DOI to submit a detailed plan but recognized its broad discretion to determine the plan's substance. DOI submitted an action plan in 2001 and in 2007 announced it had chosen an in-valley drainage alternative at an estimated total cost of $2.69 billion. (304) However, because DOI was legislatively constrained to spend no more than $429 million on construction costs, it submitted a control schedule setting forth proposed drainage projects before 2019. Holding that DOI's actions, though frustratingly slow, did not constitute an unreasonable delay, the district court granted DOI's motion for summary judgment. The Plaintiffs appealed to the Ninth Circuit.
Firebaugh's first argument on appeal was that the San Luis Act required DOI to provide drainage for lands outside the Unit. In support, Firebaugh pointed to section 1(a) of the San Luis Act, which referred to a specific DOI report that recognized the project could have out-of-Unit effects. However, the Ninth Circuit found that the report merely anticipated problems and proposed no solutions. Further, the Ninth Circuit pointed out that reading section 1(a) to require drainage for out-of-Unit land would render section 5 unnecessary. Section 5 authorized, but did not require, DOI to provide drainage to out-of-Unit lands. Therefore, the Ninth Circuit held that DOI was not required to provide drainage to lands outside of the Unit.
Second, Firebaugh argued that DOI's failure to provide drainage in the Unit constituted withholding or unreasonably delaying an action. DOI conceded it was bound to provide drainage, but responded that its delay in doing so was largely a product of Congressional--rather than its own--inaction. The Ninth Circuit held that DOI was neither withholding nor unreasonably delaying drainage within the Unit because the decision ultimately lay with Congress to provide funds for the drainage projects or to excuse the requirement to repay the cost. The Ninth Circuit reasoned that regardless of Firebaugh's suggestions on how to circumvent Congressional inaction, they were not discrete actions DOI was required to take by law, and therefore, the court did not have the power to compel them.
Third, Firebaugh alleged that DOI was liable for trespass and nuisance under the FTCA. The district court had held this claim was barred by the "private analog" requirement. The Ninth Circuit affirmed that it was aware of no California case that addressed the tort liability of a private water supplier with regard to the down-slope effect of its water. However, the Ninth Circuit also noted that the absence of such a case was not necessarily fatal. It assumed such a case's existence in order to move on to the second bar the district court had found to Firebaugh's claims.
Aside from the "private analog" requirement, the district court had also held that Firebaugh was barred from bringing its FTCA claim by the "discretionary function" exception. On appeal, Firebaugh argued that the duty embodied in section 1(a) of the San Luis Act made the discretionary function exception inapplicable. DOI responded that Firebaugh I gave it broad discretion in providing drainage. The court held that DOI was not liable under the FTCA because DOI's inaction was based on considerations of public policy, which is what the discretionary function exception was designed to shield. (305) The court reasoned that DOI's actions in developing a drainage solution implicated considerations of environmental policy, economic policy, and fiscal limitations, and therefore DOFs provision of irrigation water without concomitant adequate drainage was a discretionary function not actionable under the FTCA.
In sum, the Ninth Circuit affirmed the judgment of the district court because DOI was given wide discretion under Firebaugh I to find a solution to the problem caused by lack of adequate drainage in the Unit. That discretion placed DOFs actions beyond the scope of both the APA and the FTCA.
2. United States v. Board of Directors of Truckee-Carson Irrigation District, 723 F.3d 1029 (9th Cir. 2013).
This action, between the United States (306) and the Truckee-Carson Irrigation District (TCID), (307) represents the latest chapter in the long-running litigation regarding the diversion of water for irrigation from the Truckee and Carson Rivers. (308) On this rehearing, the Ninth Circuit admitted it had misapplied the number of years for which a gauge error issue existed. The Ninth Circuit therefore withdrew and amended its prior mandate, vacated the district court's judgment on remand, and remanded the matter for proceedings in accordance with the amended ruling.
Acting in its fiduciary capacity for the Lake Paiute Tribe, the United States originally alleged that TCID diverted water in excess of the applicable regulation. The district court found that TCID had exceeded the regulation during four individual years. On appeal, the Ninth Circuit held that the district court had calculated the amount of diverted water using the low end of the measuring gauge margin of error. (309) Finding no evidentiary basis for this choice, the Ninth Circuit remanded for recalculation of the excess diversions for the four identified years. (310) On remand, the United States asked the district court to recalculate the gauge error not only for the four years identified, but also for four additional years. Limited by the Ninth Circuit's prior finding, the district court declined to recalculate. The United States appealed.
Upon rehearing the case, the Ninth Circuit admitted its mistake in limiting the recalculation to the four years that had already been found to exceed the regulations. The Ninth Circuit noted that it is uncommon to revisit a prior judgment after the court issues a mandate and that corrections to prior judgments are extraordinary remedies. However, the Ninth Circuit concluded that this case was exceptional. The Ninth Circuit explained that because the United States owed a fiduciary duty to the Pyramid Lake Paiute Indian Tribe to keep adequate river water flowing into Pyramid Lake, if the mistake were not corrected, the Tribe and Pyramid Lake itself would be inequitably harmed.
Therefore, the Ninth Circuit withdrew and amended its prior mandate, vacated the district court's prior judgment, and remanded the matter for proceedings in accordance with the amended mandate. (311)
3. Pyramid Lake Paiute Tribe of Indians v. Nevada Department of Wildlife, 724 F.3d 1181 (9th. Cir. 2013).
The Pyramid Lake Paiute Tribe of Indians (the Tribe) and the United States brought this action in the United States District Court for the District of Nevada challenging the Nevada Department of Wildlife (NDW) and Nevada Waterfowl Association's (NWA) proposed transfer of water rights from the Newlands Project (the Project) to a wildlife refuge. The Nevada State Engineer approved the transfer application, but the district court, vacated the approval, holding that "irrigation" did not encompass the use of water for wildlife maintenance. The Ninth Circuit affirmed the district court's ruling.
The Project diverts water from the Truckee and Carson Rivers for agricultural purposes. The diversion from the Truckee River reduces the volume of water flowing into Pyramid Lake, which is owned by the Tribe. Consequently, the lake's surface area has dramatically decreased, driving native fish populations to the brink of extinction. Two federal judicial decrees determine water rights in the Project. The Orr Ditch Decree allocates water rights on the Truckee River, and the Alpine Decree regulates water rights of the Carson River. The Alpine Decree also establishes rules for transferring water rights. Specifically, a party may not transfer the non-consumptive portion of its water rights to a use other than irrigation. Under the Alpine Decree, the Nevada Engineer is authorized to review applications concerning water rights changes.
The NDW and NWA proposed the transfer of consumptive and non-consumptive water rights from agricultural lands in the Project to Carson Lake and Pasture, a wildlife refuge within the Lahontan Valley. The NDW and NWA claimed that they could transfer the water rights because using the water to grow plants for wildlife is the same as using the water for agricultural irrigation. The Tribe and the United States challenged this logic, arguing that the non-consumptive water rights would be utilized for wildlife sustenance, not irrigation. The district court agreed, explaining that the only irrigation use contemplated in the Alpine Decree involved agriculture. Additionally, the district court noted that the Alpine Decree incorporates Nevada law, which defines "wildlife purposes" as a use distinct from irrigation.
Before the Ninth Circuit, the NDW and the NWA claimed that the Tribe failed to establish a concrete and particularized injury, and therefore lacked standing. The Ninth Circuit disagreed, concluding that the Tribe established a cognizable injury by alleging that the proposed transfer would reduce water available in Pyramid Lake. The Ninth Circuit additionally noted that the challenged transfer applications concerned decreed water rights over which the district court has undisputed jurisdiction.
The Ninth Circuit then reviewed the district court's interpretation of "irrigation" under the Alpine Decree de novo. The NDW and NWA claimed that use of water for the wildlife refuge fell under both "wildlife" and "irrigation." The Ninth Circuit disagreed. The court held that irrigation was exclusive to agricultural uses because all references to "irrigation" in the decree related to agriculture. Further, the Project itself was created to facilitate agricultural irrigation. Finally, the Ninth Circuit explained that purpose for the transferred water rights fell squarely within the Nevada Code's definition of "wildlife purposes," which is differentiated within the code from agricultural irrigation. (312) Thus, the Ninth Circuit affirmed the district court's differentiation of irrigation and wildlife purposes.
4. Wildlife Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir. 2013).
The Wild Fish Conservancy and Harriet S. Bullit (collectively, the Conservancy) alleged that the United States (313) violated the Administrative Procedure Act (APA), (314) the Reclamation Act, (315) and Washington law, by diverting water from Icicle Creek (316) to the Leavenworth National Fish Hatchery (the Hatchery). Reviewing de novo, the Ninth Circuit concluded 1) the Conservancy lacked prudential standing to bring claims under Washington water code violations, and 2) the court lacked jurisdiction to consider the Conservancy's other claims.
The Leavenworth Hatchery was constructed to ensure the survival of Columbia River Basin native fish populations that were negatively affected by the Grand Coulee Dam. The Hatchery consists of a one-mile segment of Icicle Creek known as the Historic Channel (the Channel) and the adjacent 4,000-foot Hatchery Canal. The Hatchery Canal splits from the Channel at Structure 2, which is the dam that controls the amount of water flowing downstream, and later rejoins the Channel near Structure 5. The Conservancy's basic concern was that when the gates of Structure 2 are closed, the Channel is dewatered and fish are unable to swim to spawning grounds above the hatchery.
The Conservancy first claimed that the Hatchery violated section 8 of the Reclamation Act because it diverted water from Icicle Creek without a permit from the Washington Department of Ecology. The Defendants countered on several grounds, (317) but the Ninth Circuit held that it did not need to decide the question because the Conservancy lacked prudential standing. The Ninth Circuit explained that the goal of section 8 of the Reclamation Act was not to enlarge a party's rights as a water user but rather to advance "cooperative federalism" and maintain the longstanding tradition of federal deference to state water law. Therefore, the Ninth Circuit held that the Conservancy's interests fell outside the statute's "zone of interests."
The Conservancy's second claim alleged violations of Washington fishway law, rather than the water code. The Conservancy argued that the Hatchery operators failed to submit fishway plans to the State Department of Fish and Wildlife, failed to maintain durable and efficient fishways on Hatchery structures that obstruct fish passage, and failed to supply existing fishways with adequate water. The Ninth Circuit concluded that the first two claims automatically failed, because they did not concern the "control, appropriation, use, or distribution of water." (318)
Furthermore, the Ninth Circuit held that even if it overlooked the lack of relation to section 8, all three arguments also failed because the suit did not address a final agency action. The Ninth Circuit explained that there was no "agency action" because the closing of Structure 2's gates was not analogous to a "rule, order, license, [or] sanction." (319) The Ninth Circuit explained that any proposed agency action was not final because it did not "mark the consummation of the agency's decisionmaking process." (320) Therefore, the Ninth Circuit concluded that the court lacked jurisdiction to hear the case.
In sum, the Ninth Circuit held that 1) the Conservancy lacked prudential standing to bring an APA challenge, and 2) the Ninth Circuit lacked jurisdiction over the Conservancy's claims that Defendants violated Washington's Fishway Law.
D. Standing and Justiciability
1. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013).
Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, Shell) filed a motion for a temporary restraining order and preliminary injunction against Greenpeace, Inc. (Greenpeace USA) in the U.S. District Court for the District of Alaska. (321) The district court granted Shell's motion and Greenpeace USA appealed to the Ninth Circuit. Greenpeace USA argued: 1) the dispute did not present a justiciable case or controversy; 2) the district court lacked subject matter jurisdiction; 3) Greenpeace USA was not the correct entity for Shell to sue; and 4) the district court based its ruling on erroneous legal standards and findings of fact. Shell also filed a motion arguing that the appeal should be dismissed because the case was moot. The Ninth Circuit held that all of Greenpeace USA's arguments were without merit. Therefore the Ninth Circuit affirmed the district court's order granting the preliminary injunction.
Shell is a worldwide collection of energy companies that hold multiyear leases for oil and gas on the Outer Continental Shelf in the Arctic Ocean. (322) Greenpeace is a global environmental protection organization that is involved in a "direct action" campaign against Shell that has included boarding Shell's vessels and disrupting offshore drilling projects. (323) The preliminary injunction was designed to protect Shell's vessels from such activities. Greenpeace USA appealed the injunction to the Ninth Circuit. The Ninth Circuit reviewed the district court's decision to grant the preliminary injunction for abuse of discretion. The Ninth Circuit reviewed the district court's interpretation of the underlying legal principles, standing, mootness, and ripeness de novo. After the Ninth Circuit affirmed the district court, the Ninth Circuit denied Greenpeace USA a rehearing en banc.
The Ninth Circuit first addressed Greenpeace USA's claim that Shell did not have standing to- sue Greenpeace USA because it could not demonstrate injury in fact. Article III standing requires that the plaintiff "demonstrate a real or immediate threat of irreparable injury." (324) Plaintiffs seeking preliminary injunctions must show that they are likely to succeed on the merits and that they will suffer irreparable harm without preliminary relief. (325) Because the first two prongs of the preliminary injunction inquiry mirror the Ninth Circuit's Article III standing analysis, the Ninth Circuit held Shell necessarily had Article III standing because Shell had satisfied its burden for preliminary injunctive relief.
The Ninth Circuit next turned to Greenpeace USA's claim that the dispute was not ripe. Shell provided undisputed evidence that it was allowed to explore its leases in the Outer Continental Shelf (OCS) of the Arctic only from July through October. The district court found that Shell would suffer irreparable harm without injunctive relief by missing this narrow window. Thus, the Ninth Circuit held that the facts were sufficiently developed and the nature of the dispute warranted prompt adjudication, which rendered the case ripe for review.
The Ninth Circuit then determined that the case was not moot. Shell argued that because the preliminary injunction granted by the district court expired on October 31, 2012, and the Ninth Circuit had not yet issued a decision on Greenpeace USA's appeal, the claim was moot. Greenpeace USA responded that the case fell under the mootness exception doctrine of being "capable of repetition, yet evading review." (326) For a case to fall under this exception: "(1) the duration of the challenged action or injury must be too short to be fully litigated; and (2) there must be a reasonable likelihood that the same party will be subject to the action again." (327) The Ninth Circuit agreed, holding that both prongs were satisfied. First, the court held that the limited nature of the preliminary injunction and Shell's authorization to drill satisfied the first prong. Second, the court held that the likelihood that Greenpeace USA's campaign to stop Shell would continue through Shell's multi-year lease satisfied the second prong.
Greenpeace USA also argued that the district court erred in exercising jurisdiction over Shell's vessels in the United States Exclusive Economic Zone (EEZ). The Ninth Circuit held that it was unnecessary to determine whether the district court could exercise jurisdiction over the EEZ because the district court inarguably had jurisdiction over the territorial seas and ports of the United States. Thus, because the common nucleus of operative facts underlying Shell's prayer for relief constituted a single case or controversy, the court held that supplemental jurisdiction was proper.
The Ninth Circuit next addressed Greenpeace USA's claim that it was not the proper entity to enjoin. Greenpeace USA argued that it was not directly involved in any previous attacks on Shell vessels. However, the Ninth Circuit noted that it was unnecessary for Shell to show past injury from Greenpeace USA's actions. The court held that the district court's finding of Greenpeace USA as properly enjoined was sufficiently supported by its factual finding that Greenpeace USA was a participant in the campaign to stop Shell.
Finally, the Ninth Circuit addressed Greenpeace USA's arguments against the preliminary injunction. The Ninth Circuit organized these arguments around the familiar four-part test for grants of preliminary injunction. (328) Greenpeace USA first argued that the district court impermissibly tasked it, instead of Shell, with proving that it was not likely to commit tortious or illegal activities on Shell's vessels. The Ninth Circuit disagreed, reasoning that because Greenpeace USA had failed to refute evidence Shell had proffered showing that such acts were likely to continue, the burden of proof properly remained with Greenpeace USA. Greenpeace USA also argued that Shell failed to meet its burden of proof because it did not show that Greenpeace USA was likely to repeat its single tortious and illegal activity. However, the Ninth Circuit rejected this claim as well, holding that there was enough evidence of illegal and tortious activities in the record. Therefore, the Ninth Circuit concluded, Shell had met its burden.
Second, Greenpeace USA argued that the likelihood of irreparable injury was speculative and could not be based on events involving entities other than Greenpeace USA. The Ninth Circuit held that the record before the district court demonstrated that Greenpeace USA had either undertaken or endorsed actions that posed serious risk or harm to human life. The Ninth Circuit therefore held that the district court did not abuse its discretion by finding for Shell on the second requirement.
Third, Greenpeace USA argued that the district court should have required Shell to show that the equities tip "sharply" in their favor. The Ninth Circuit disagreed, finding that Greenpeace USA's argument was premised on an improper reading of Winter v. Natural Resources Defense Council, and that the "serious questions approach" contemplated therein was inapplicable because Shell had demonstrated a likelihood of success on the merits. Therefore, the Ninth Circuit held that the district court did not abuse its discretion in finding that the equities tipped in Shell's favor. The court agreed that Shell's legally authorized activities at sea outweighed Greenpeace USA's First Amendment right to protest within the same area.
Fourth, Greenpeace USA argued that the district court did not consider the public interest in environmental protection when it issued the injunction. The Ninth Circuit rejected this claim, noting that the district court had explicitly considered environmental protection as a public interest factor, specifically recognizing Greenpeace USA's role in monitoring Shell's activities. Thus, the Ninth Circuit held that district court's holding did not constitute an abuse of discretion.
In sum, the Ninth Circuit held: 1) Shell had Article III standing; 2) the dispute was ripe for review; 3) mootness was not an issue; 4) supplemental jurisdiction over the United States EEZ was proper; 5) Greenpeace USA was the proper entity to enjoin; 6) the district court did not abuse its discretion in granting the preliminary injunction; 7) Shell had met its burden of proof; 8) Greenpeace USA failed to refute the evidence produced by Shell that included the actions of other Greenpeace entities; 9) Shell was likely to suffer irreparable harm; 10) the balance of equities tipped in Shell's favor; and 11) the district court did not abuse its discretion by finding that the preliminary injunction was in the public interest. Thus, the Ninth Circuit affirmed the district court.
In dissent, Judge Smith stated that he would have held that Shell might not impute the actions of other independent Greenpeace entities to Greenpeace USA in order to meet Shell's burden of proof. (329) The dissent disagreed with two arguments made by the majority: 1) that Shell did not need to show past injury by Greenpeace USA; and 2) that Greenpeace USA endorsed and could be held responsible for the unlawful actions of other Greenpeace entities by reporting them on its website and referring to them as "our activists." First, the dissent argued that the separate legal status of Greenpeace USA was dispositive, because a person, or corporation, can be held legally responsible only for his or her own actions, absent extraordinary circumstances. (330) Second, the dissent opined that mere endorsement of criminal conduct cannot support an injunction, because it does not constitute an imminent threat. The dissent reasoned that holding otherwise would have a chilling effect on constitutionally protected speech. (331) Thus, the dissent concluded that the imposition of legal sanctions on Greenpeace USA was improper because it was based in significant part on the conduct of other entities that Greenpeace USA did not control.
(1) ERF is a nonprofit organization that uses environmental law enforcement to provide a clean, healthful, and biologically diverse environment. The Ecological Rights Foundation Public Information Site, About Us, http://www.ecorights.org/about.htm (last visited July 26, 2014).
(2) Defendants-Appellees PG&E and Pacific Bell, respectively a combined natural gas and electric utility and a landline telecommunications service, own and maintain wooden utility poles throughout the San Francisco Bay Area. PG&E, Company Profile, http://www.pge.com/ en/about/company/profile/index.page? (last visited July 26, 2014); Bloomberg BusinessWeek, Company Overview of Pacific Bell Telephone Company, http://investing.businessweek.com/ research/stocks/private/snapshot.asp?privcapid= 1244202 Oast visited July 26, 2014).
(3) Federal Water Pollution Control Act, 33 U.S.C. [section][section] 1251-1387 (2006).
(4) Resource Conservation and Recovery Act of 1976, 42 U.S.C. [section][section] 6901-6992k (2006) (amending Solid Waste Disposed Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).
(5) This difference in filing time falls in line with RCRA's more stringent notice standard. 42 U.S.C. [section] 6972(b)(2)(A) (2006).
(6) In its second amended complaint, ERF claimed violations of: 1) the CWA 33 U.S.C. [section]1311(a), by discharging "pollutant-bearing stormwater runoff" into waters of the United States without an NPDES permit; 2) the CWA, id. [section] 1311(a), and [section] 1342, by failing to obtain an NPDES permit, regardless of any discharges; and 3) RCRA, 42 U.S.C. [section] 6972(a)(1)(B), by contributing to "the past and present handling, storage, treatment, transportation and disposal of solid waste," which may present an "imminent and substantial endangerment to health or the environment." See Ecological Rights Found, v. Pac. Gas & Elec. Co., 713 F.3d 502, 507 (9th Cir. 2013).
(7) Ecological Rights Found, v. Pac. Gas & Elec. Co., 803 F. Supp. 2d 1056, 1065 (N.D. Cal. 2011), affd, 713 F.3d 502 (9th Cir. 2013).
(8) Greater Yellowstone Coal v. Lewis, 628 F.3d 1143, 1152-53 (9th Cir. 2010); Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984).
(9) The court divided the cited cases defining conveyances into three groups: 1) those that deal with items the CWA specifically identifies as point sources; 2) those that deal with items that were constructed for the express purpose of storing pollutants or moving them from one place to another; and 3) those that deal with items that no one disputed were point sources. It found utility poles not to fit into any of these.
(10) ERF urged the court to read its complaint together with its CWA notice letters. The "incorporation by reference doctrine" allows a document to essentially become part of the complaint if it is referred to extensively or forms the basis of Plaintiffs claim. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). However, the Ninth Circuit noted that ERF did not refer extensively to the notices, and the documents weren't integral to the complaint despite containing related allegations. Ecological Rights Found, 713 F.3d at 511 (citing Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) ("[T]he mere mention of the existence of a document is insufficient to incorporate the contents of a document.") (internal citations omitted)).
(11) 33 U.S.C. [section] 1342(p)(2)(B) (2006).
(12) 40 C.F.R. [section] 122.26(b)(14) (2013).
(13) Id. ERF argued that the industry activity list was illustrative, rather than exclusive, but the court concluded that both regulation and case law suggest otherwise.
(14) Id. [section] 122.26(b)(14)(vii); National Pollutant Discharge Elimination System Application Regulations for Stormwater Discharges, 53 Fed. Reg. 49,416,49,432 (proposed Dec. 7,1988).
(15) United States v. Tatoyan, 474 F.3d 1174,1181 (9th Cir. 2007).
(16) H.R. Rep. No. 94-1491, pt. 1, at 2, 9 (1976); No Spray Coal, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) ("[M]aterial is not discarded until after it has served its intended purpose.").
(17) The Ninth Circuit cited No Spray Coal, in which the court held that pesticides that are sprayed into the air to kill mosquitoes are not considered "discarded," even if they drift beyond their intended target. See No Spray Coal., 252 F.3d at 150.
(18) The EPA's interpretation of "discarded" focused on whether or not products were used as intended. The court agreed that the wood preservative, like fired munitions, is used for its intended purpose. Thus, even though residue results from this use, it is not "discarded." 40 C.F.R [section] 266.202 (2013).
(19) 7 U.S.C. [section][section] 136-136y (2006 & Supp. II2008).
(20) EPA, Regulatory Status of Various Types of Pentachlorophenol Wastes, RCRA Online No. 11256, available at http://yosemite.epa.gov/osw/rcra.nsR0c994248c239947e85256d090071175Rb3 0c860b7bf78f3f8525670f006bd7ef!OpenDocument.
(21) The court explicitly stated that it was not deciding whether or under what circumstances a material becomes a "solid waste" pursuant to the RCRA when it naturally and expectedly accumulates in the environment on account of its intended use. Ecological Rights Found., 713 F.3d 502, 517-18 (9th Cir. 2013).
(22) See Fed. R. Civ. P. 12(b)(1); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
(23) See San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir. 2002).
(24) See Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800-01 (9th Cir. 2009) (describing the important role that a plaintiffs citizen suit notice letter serves).
(25) Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004).
(26) Federal Water Pollution Control Act, 33 U.S.C. [section][section] 1251-1387 (2006).
(27) Also included among the Defendants were George Scott, Sr., George Scott, Jr., and George W. Scott, Sr., Revocable Inter Vivos Trust.
(28) The actions against Chico included an investigation by the California Department of Toxic Substances Control in 2007, and suits filed by the Butte County district attorney in 2007 and 2008 alleging civil and criminal violations of state environmental and occupational safety laws. Chico entered into a plea agreement regarding these latter actions in October 2008, including probation conditions.
(29) California Sportfishing Protection Alliance, Who is CSPA ?, http://calsport.org/about7who is.php (last visited July 26, 2014).
(30) 33 U.S.C. [section] 1365(b)(1)(B) (2006).
(31) Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868, 873 (9th Cir. 2013).
(32) Natural Resources Defense Council is a prominent environmental organization with nationwide initiatives. Natural Resources Defense Council, About Us, http://www.nrdc.org/ about/ (last visited July 26, 2014). Santa Monica Baykeeper, now Los Angeles Waterkeeper, is a local nonprofit organization dedicated to protecting water quality throughout the Los Angeles Area. Los Angeles Waterkeeper, About Us, https://lawaterkeeper.org/about-us/ (last visited July 26, 2014).
(33) Federal Water Pollution Control Act, 33 U.S.C. [section][section] 1251-1387 (2006).
(34) The Supreme Court granted certiorari and addressed one discrete legal issue: whether polluted water that passes through a concrete channel to another point in the river constitutes a discharge of a pollutant under the CWA. The Supreme Court answered in the negative. L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710, 713 (2013).
(35) Defendants argued in the alternative that the Ninth Circuit's prior judgment should be considered the law of the case. The Ninth Circuit dismissed this argument as well, finding that an opinion without a mandate is not settled law in the Ninth Circuit, and thus is not the law of the case.
(36) Petitioners also included Center for Biological Diversity, Natural Resources Defense Council, Northern Alaska Environmental Center, Pacific Environment, Resisting Environmental Destruction on Indigenous Lands, Sierra Club, and The Wilderness Society.
(37) 42 U.S.C. [section][section] 7401-7671q (2006).
(38) Shell Offshore, Inc. intervened on behalf of EPA.
(39) 42 U.S.C. [section] 7661c(e) (2006).
(41) 467 U.S. 837, 844 (1984). Under Chevron deference, a court first determines whether Congress's intent in speaking directly to the matter is clear. If the statute is silent or ambiguous, the court will determine whether the agency's interpretation is based on a permissible construction of the statute. Sierra Club v. EPA, 671 F.3d 955, 961-62 (9th Cir. 2012).
(42) WSPA intervened on behalf of Defendants.
(43) 42 U.S.C. [section][section] 7401-7671q (2006).
(44) See Natural Res. Def. Council v. EPA, 542 F.3d 1235, 1248 (9th Cir. 2008) (holding that "[w]here Congress has expressed the need for specific regulations relating to the environment, that expression supports an inference that there is a causal connection between the lack of those regulations and adverse environmental effects").
(45) 549 U.S. 505, 517-18 (2007).
(46) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [section][section] 9601-9675 (2006).
(47) In 1989, the California Regional Water Quality Control Board (the Board) issued an order naming Ford Aerospace (now Space Systems) a discharger and mandating it clean up hazardous wastes at Lot 901 and other adjacent sites, including Lot 851. In 1988, Sun acquired Lot 901, and the Board subsequently issued multiple orders naming Sun a discharger. The Board issued an order in 1999 requiring the named dischargers to clean up the collective sites. This order was amended to include Taube-Koret as a discharger after Taube-Koret purchased Lot 901. Chevron and Stevenson are alleged to have contributed hazardous materials to Lot 851 at different times prior to Taube-Koret acquiring the property in 2006.
(48) Subrogation allows for an insurer (subrogee) who pays for an insured's (subrogor) losses to succeed to the insured's rights and remedies upon such losses. The subrogor's rights are limited to those rights that the subrogee would have had. The right to subrogation can be created in equity, through contract, or through statute. CERCLA expressly provides a right of subrogation in section 112(c).
(49) Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., et al., 710 F.3d 946, 959 (9th Cir. 2013). In interpreting the statute, the Ninth Circuit noted that words within a statute must be given their ordinary meaning, unless the statute gives a separate definition. Further, the Ninth Circuit provided that interpretation is dependent upon the whole of the statutory text, including the statute's purpose, and any precedent or authority that may influence the analysis.
(50) The necessity to give "operative effect" to every word in a statute when possible is to avoid "any construction which implies that the legislature was ignorant of the meaning of the language it employed." Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
(51) See 42 U.S.C. [section] 9607(a)(4) (2006).
(52) 551 U.S. 128, 135-36 (2007). In Atlantic, a PRP attempted to recover cleanup costs from other PRPs under section 107(a), separate and distinct from section 113(f)(1). The dispute centered on which "other person[s]" may sue under section 107(a).
(53) Id. at 139.
(54) Chubb, 710 F.3d at 962.
(55) The Ninth Circuit reasoned that Congress had intended to rebut the common law presumption in favor of subrogation in section 107(a) because Congress expressly included subrogation in section 112(c). Id. at 960-61 (citing Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104,108 (1991)).
(56) Cal. Civ. Proc. Code [section][section] 335, 338(b) (West 2014).
(57) For support, Chubb relied on Smith v. Parks Manor; 197 Cal. App. 3d 872 (1987). In Smith, the insurer intervened in an action against its insured to recover equitable indemnity from another defendant for a settlement it paid the plaintiff. The trial court granted, and the appellate court affirmed demurrer grant. The court reasoned that the defendant deserved the grant because the insurer's claim was barred by the statute of limitations, which began to accrue when the indemnitee suffered a loss through payment of settlement. Smith, 197 Cal. App. 3d at 882. The Ninth Circuit held that the rule announced in Smith was inapplicable to this case because Chubb did not bring a claim for equitable indemnity.
(58) Chubb, 710 F.3d at 972.
(59) The other homeowners included William Montero, Barbara Montero, Clifford Rogers, Sharon Rogers, Hermann Rosner, Marcus Rothkranz, Daniel Soldini, Charles Walke, Verna Walker, Jack Yencheck, Ofelia Yencheck, Richard Malm, Roger Ellsworth, Jo Ann Ellsworth, Margaret Rudelich-Hoppe, Patricia Mahoney, Richard Falen, Peter Learned, Kristian Meier, Eliza Acosta, Mirha Elias, Aiko Berge, Victor Becerra, Arthur Bodendorfer, Brenda C. Chaffin, Michael J. Solmi, Jason Cowles, Jane Gauthier, Honore Gauthier, Nikolas Konstantinou, Dragan Kurajica, Kenneth Lowther, James Luehmann, Jacqueline Luehmann, and Ruth Mannheimer.
(60) Maryland Square crossclaimed against SBIC for indemnity. Defendants also included Herman Kishner Trust, which did not appeal.
(61) 42 U.S.C. [section][section] 6901-6992k (2006) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965)).
(62) 42 U.S.C. [section][section] 9601-9675 (2006).
(63) Homeowners responded that Marylaind Square should nevertheless be considered a contributor under RCRA, because its demolition of the building that had been used for the dry cleaning business exacerbated the contamination.
(64) 458 U.S. 941, 953-54 (1982) (holding that groundwater is an instrumentality of interstate commerce).
(65) The Ninth Circuit drew support from a prior case that had recognized the economic burden of cleanup costs in a case very similar to the one at hand. United States v. Olin, 107 F. 3d 1506, 1510-11 (11th Cir. 1997) ("CERCLA constitutes a permissible exercise of Congress's authority under the Commerce Clause.").
(66) An owner seeking to qualify as a bona fide prospective purchaser must establish that it: 1) purchased the property after the hazardous substances were spilled; 2) made all appropriate inquiries before it purchased the property; 3) provided all legally required notices about the hazardous substances; 4) took steps to stop ongoing spills, prevent future spills, and limit the exposure from past spills; 5) provides full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration, 6) be in compliance with any land use restrictions established or relied on in connection with the response action and not impede the effectiveness or integrity of any institutional control employed with a response action; 7) complies with any request for information or administrative subpoena issued by the President under this chapter; and 8) not be potentially liable, or affiliated with any other person that is potentially liable, for response costs. 42 U.S.C. [section] 9601(40)(A)-(H) (2006).
(67) In addition to the CERCLA claim, NDEP claimed that Maryland Square was liable under a state statute analogous to CERCLA, which allows NDEP to require reimbursement from "any person ... who owns ... the area used for the disposal of [hazardous] waste." Nev. Rev. Stat. [section] 459.537 (2014). Maryland Square argued that it was not liable under this statute because it did not own the Site at the time the spill occurred. The Ninth Circuit held that the state statute does not limit the obligation to reimburse NDEP to the parties responsible for a hazardous spill.
(68) See 42 U.S.C. [section] 6903(3) (2006) (defining "disposal" as the "discharge... of any... hazardous waste into or on any land or water so that such ... waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters").
(69) See 42 U.S.C. [section] 9607(a)(2) (2006) (assigning CERCLA liability extends to "any person who at the time of disposal of any hazardous substance ... operated any facility at which such hazardous substances were disposed of").
(70) The Ninth Circuit also drew support from other courts that had made similar findings. See, e.g., Amland Properties Corp. v. Aluminum Co. of Am., 711 F. Supp. 784, 791-92 (D.N.J. 1989) (concluding that a disposal inside a plant was a disposal "on any land"); Lincoln Properties, Ltd. v. Higgins, No. S-91-760DFL/GGH, 1993 WL 217429, at *19-20 (E.D. Cal. Jan 21, 1993) (stating that a release into the environment need not be direct).
(71) 42 U.S.C. [section][section] 9601-9675 (2006).
(72) Or. Rev. Stat. [section][section] 465.475-.480 (2013).
(73) Superfund Sites are sites that have reached a level of contamination that the EPA deems qualifies the site for listing under the National Priorities List for hazardous waste cleanup. Liability for the dispersal of hazardous pollutants and the resultant cleanup is provided under CERCLA.
(74) Or. Rev. Stat. [section] 465.480(2)(b).
(75) 104 P.3d 1162, 1168-69 (Or. Ct. App. 2005) (holding that the term "suit" within comprehensive general liability policies is ambiguous, yet encompasses the use of a legal process to obtain an end).
(76) 230 P.3d 103, 116 (Or. Ct. App. 2010) (affirming the holding of Schnitzer).
(77) 7 U.S.C. [section][section] 136-136y (2006 & Supp. II2008).
(78) HeiQ Materials AG (HeiQ), the applicant for which EPA granted the conditional registration, intervened on behalf of EPA.
(79) 7 U.S.C. [section] 136a(c)(7)(C).
(80) "Unreasonable adverse effects on the environment" is defined under FIFRA to include "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Id [section] 136(bb).
(81) Id. [section] 136a(c)(7)(C).
(82) Id. [section] 136n(b). The Ninth Circuit interprets "substantial evidence" to mean the evidence a reasonable mind might accept as adequate to support a conclusion. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); see also Nw. Food Processors Ass'n v. Reilly, 886 F.2d 1075, 1079-80 (9th Cir. 1989) ("[W]e must affirm ... even if it is possible to draw two inconsistent conclusions from the evidence.").
(83) Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87,103 (1983).
(84) Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).
(85) See City of L.A. v. Lyons, 461 U.S. 95, 102-03 (1983) (holding that low future probability of exposure to the harm at issue is not enough to give a plaintiff standing).
(86) See Coal, for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1280 (D.C. Cir. 2012) (holding that ability to avoid exposure by choice means that injury is not certainly impending or even likely).
(87) See, e.g., Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002) ("[W]e agree with those circuits that have recognized that a credible threat of harm is sufficient to constitute actual injury for standing purposes."); Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001) (holding that "evidence of a credible threat to the plaintiffs physical well-being from airborne pollutants falls well within the range of injuries to cognizable interests that may confer standing").
(88) NRDC argued that this was a post hoc rationalization that lacked support in the record. However, the Ninth Circuit disagreed, because "they are commonsense statements about the apparent distinctions between children of different ages," and "[EPA] need not state every patently obvious observation underlying its reasoning." Natural Res. Def. Council v. EPA, 735 F.3d 873, 881, n.4 (9th Cir. 2013).
(89) Margin of exposure, or MOE, is calculated by dividing the toxicological point of departure by the daily dose. The point of departure is the amount of a substance required to manifest an adverse effect to an individual. The daily dose is the amount of that substance an individual might be exposed to in a day.
(90) Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981) (citation omitted).
(91) In addition to CFS, Plaintiffs included Sierra Club, Trask Family Farms, Geertson Seed Farms, Beyond Pesticides, National Family Farm Coalition, Cornucopia Institute, Dakota Resource Council, Western Organization of Resource Councils, Northeast Organic Dairy Producers Alliance, and California Farmers Union.
(92) Additionally, Monsanto Company, Forage Genetics International, California Alfalfa and Forage Association, Eureka Seeds, Inc., Gardena Alfalfa Seed Growers association, Midwest Forage Association, John Grover, Daniel Mederos, Dan Scheps, Carl Simmons, and Mark Watte intervened as Defendants.
(93) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321^1347 (2006).
(94) 7 U.S.C. [section][section] 2279(e), 2279(f), 7701, 7702, 7711-7721, 7731-7736, 7751-7761, 7771-7772, 7781-7786 (2006).
(95) Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006 & Supp. IV 2011).
(96) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).
(97) 7 U.S.C. [section] 7702(14) (2006) (defining plant pests as "any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: (A) A protozoan (B) A nonhuman animal (C) A parasitic plant (D) A bacterium (E) A fungus (F) A virus or viroid (G) An infectious agent or other pathogen (H) Airy article similar to or allied with any of the articles specified in the preceding subparagraphs"); id. [section] 340.1 (clarifying the statutory definition as "organisms.. . which can directly or indirectly injure or cause disease or damage").
(98) Center for Food Safety, About Us, http://www.centerforfoodsafety.org/about-us (last visited July 26, 2014).
(99) Genetically modified plants like RRA are regulated by various agencies pursuant to the Coordinated Framework for Regulation of Biotechnology, a 1986 policy statement from the Office of Science and Technology Policy. This regulation is divided among three agencies: the Food and Drug Administration (FDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Department of Agriculture (USDA) through APHIS. EPA only indirectly regulates genetically modified plants through the Federal Insecticide, Fungicide, and Rodenticide Act, governing the use, sale, and labeling of herbicides like Roundup. None of these agencies are required to address the environmental or economic harms with which CFS was concerned.
(100) In so doing, however, the Ninth Circuit emphasized that much of CFS's arguments were well grounded and noted that Congress has failed to update the PPA since 1957.
(101) See 16 U.S.C. [section] 1536(a)(2) (2006) ("Each Federal agency shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical.").
(102) Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007).
(103) 561 U.S. 139 (2010).
(104) See id at 172 (Stevens, J., dissenting).
(105) 7 U.S.C. [section] 7712(f) (2006).
(106) 7 U.S.C. [section] 7702(10) (2006) (defining a "noxious weed" as "any plant or plant product that can directly or indirectly injure or cause damage to crops ... or other interests of agriculture").
(107) Conservation Congress is an environmental organization dedicated to, inter alia, holding state and federal agencies accountable to environmental laws and practices. Conservation Congress, About Us, http://conservationcongress-ca.org/The_Conservation_Congress/About_Us. html (last visited July 26, 2014).
(108) Sierra Pacific Industries intervened as a Defendant.
(109) Endangered Species Act of 1973, 16 U.S.C. [section][section] 1531-1544 (2006 & Supp. IV 2011).
(110) Critical habitat under the ESA designates areas that are essential to the species's conservation. 16 U.S.C [section][section] 1532(5)(a)(i)-(ii) (2006). The Spotted Owl's critical habitat includes nesting, roosting, foraging, and dispersal components. Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. Reg. 1796, 1797 (Jan. 15, 1992) (codified at 50 C.F.R. pt. 17).
(111) The biological assessment reasoned that while proposed treatments would temporarily "degrade" foraging habitat in designated critical habitat, the treatments over the long term would improve forest health and resistance to insects and disease, increase tree diameter by reducing inter-tree competition, and encourage understory reproduction. Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 1052 (9th Cir. 2013).
(112) The FWS agreed that the Project would not likely have an adverse effect on the Owl because: 1) treatments were not proposed within nesting or high-quality foraging habitat, and 2) 171 acres of treated foraging habitat would remain functional for the Owl.
(113) 50 C.F.R. [section] 402.02 (2009) ("Cumulative effects are those effects of future State or private activities; not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.") (emphasis added).
(114) The ESA requires "consultation" with the agency, but does not specify whether it must be "formal" or "informal." 16 U.S.C. [section] 1536(a)(2) (2012). FWS's "responsibilities during formal consultation" include the formulation of a biological opinion that advises the action agency as to whether or not the action, "taken together with cumulative effects, is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. [section][section] 402.14(g)(4), (h)(3) (2009). An informal consultation is defined with no mention of a cumulative effects analysis. 50 C.F.R. [section] 402.13(a) (2009). The Ninth Circuit reasoned that it could not impose a duty on the Agencies that is not explicitly enumerated in the ESA. See Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978); Earth Island Inst. v. Carlton, 626 F.3d 462, 472 (9th Cir. 2010) (holding that "[c]ourts may not impose procedural requirements not explicitly enumerated in the pertinent statutes"); Wilderness Soc'y v. Tyrrel, 918 F.2d 813, 818 (9th Cir. 1990).
(115) Plaintiffs included the Freezer Longline Coalition; Alaska Seafood Cooperative; The Groundflsh Forum; Alaska Groundfish Cooperative; Cascade Fishing, Inc.; M/V Savage, Inc.; Ocean Peace, Inc.; The Fishing Company of Alaska, Inc.; Alaska Juris, Inc.; Alaska Spirit, Inc., Washington corporations; United States Seafood, LLC; Alaska Alliance, LLC; Alaska Legacy, LLC; Seafreeze Alaska 1, LLC; Alaska Vaerdal, LLC; Iquique U.S., LLC; Unimak Vessel, LLC; Cape Horn Vessel, LLC; Rebecca Irene Vessel, LLC; Tremont Vessel, LLC; Arica Vessel, LLC, Washington limited liability companies; FCA Holdings, Inc., an Alaska Corporation; O'Hara Corporation, a Maine corporation; and AK Victory, Inc., a Washington corporation. Various parties were Plaintiffs in the original suit, Appellants on each claim, or both.
(116) Defendants included Jane Lubchenco, in her official capacity as Administrator, National Oceanic and Atmospheric Administration; National Marine Fisheries Service; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator; Penny Pritzker, in her official capacity as United States Secretary of Commerce. Additionally, the district court allowed intervention by nonprofit environmental groups Oceana, Inc. and Greenpeace, Inc.
(117) Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. [section][section] 1801-1883 (2006).
(118) Endangered Species Act of 1973,16 U.S.C. [section][section] 1531-1544 (2006 & Supp. IV 2011).
(119) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321^347 (2006).
(120) The Ninth Circuit noted that this increase was statistically insignificant.
(121) Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1075 amended, 387 F.3d 968 (9th Cir. 2004) ("[F]ocusing solely on a vast scale can mask multiple site-specific impacts that, when aggregated, do pose a significant risk to a species.").
(122) 50 C.F.R. [section] 402.02 (2012) (defining "adverse habitat modification" as a "direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species").
(123) See Gifford, 378 F.3d at 1069-72 (holding that a portion of the regulation was invalid as contrary to the statutory language).
(124) State of Alaska v. Lubchenco, 723 F.3d 1043,1054 (9th Cir. 2013).
(125) Inst, of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940, 942 (9th Cir. 2013).
(126) Plaintiff-Appellants also included Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa, and Toshiyuki Miura.
(127) Defendant-Appellees also included Paul Watson.
(128) This opinion, issued on May 24, 2013, is an amended and reissued version of an earlier opinion. For a review of the prior opinion, see Case Summaries, Cetacean Research v. Sea Shepherd Conservation Soc'y 708 F.3d 1099 (9th Cir. Rev.), 43 Envtl. L. 569, 667-69 (2013). In the section of the opinion discussing the District Court judge's lack of impartiality, the amended opinion replaces the language "[t]he district judge's ... high-profile case" (Inst, of Cetacean Research v. Sea Shepherd Conservation Soc'y, 708 F.3d 1099, 1106 (9th Cir. 2013)), with "[p]anels have broad discretion to reassign cases on remand when they feel justice or its appearance requires it." Inst, of Cetacean Research, 725 F.3d at 947.
(129) 28 U.S.C. [section] 1350 (2006).
(130) The Institute of Cetacean Research, in particular, is a Japanese organization specializing in the biology and social sciences related to whales. The Institute of Cetacean Research, Overview and Purpose, http://www.icrwhale.org/abouticr.html (last visited July 26, 2014).
(131) International Convention for the Regulation of Whaling art. VIII, Dec. 2, 1946, 161 U.N.T.S. 72.
(132) Sea Shepherd Conservation Society uses innovative direct-action tactics. Sea Shepherd Conservation Society, Who We Are, http://www.seashepherd.org/who-we-are/ (last visited July 26, 2014).
(133) United Nations Convention of the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397,436.
(134) Inst. of Cetacean Research, 725 F.3d at 944 (quoting United Nations Convention of the Law of the Sea, supra note 133, at 436).
(135) With regard to the fourth element, balance of equities, the Ninth Circuit affirmed the district court's finding that the balance of equities favored Cetacean.
(136) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation art. 3, Mar. 10,1988,1678 U.N.T.S. 201, 224-25.
(137) Specifically, Sea Shepherd violated the Whaling Convention Act and the Marine Mammal Protection Act.
(138) Concerning safe navigation, Sea Shepherd violated UNCLOS, SUA Convention, and COLREGS.
(139) Inst, of Cetacean Research v. Sea Shepherd Conservation Soc'y, 725 F.3d 940, 947 (9th Cir. 2013).
(140) Concurring in part and dissenting in part, Judge Smith agreed with the reasoning and judgment of the opinion but disagreed with the decision to reassign the case.
(141) In addition to Conservation Northwest, Plaintiffs included: the Gifford Pinchot Task Force; Environmental Protection Information Center; Klamath Alliance; Umpqua Watersheds Inc.; Siskiyou Regional Education Project; Klamath-Siskiyou Wildlands Center; Oregon Wild; American Lands Alliance; Center for Biological Diversity; and Northcoast Environmental Center. In addition to Harris Sherman, Assistant Secretary, Department of the Interior, Defendants included: Terry Rabot, Assistant Regional Director for Ecological Services at Department of Fish and Wildlife; United States Forest Service; Bureau of Land Management; and United States Fish and Wildlife Service.
(142) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4370(f) (2006).
(143) National Forest Management Act of 1976,16 U.S.C. [section][section] 472a, 521b, 1600,1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93378, 88 Stat. 476 (1974)).
(144) Endangered Species Act of 1973,16 U.S.C. [section][section] 1531-1544 (2006 & Supp. IV 2011).
(145) Federal Land Policy and Management Act of 1976,43 U.S.C. [section][section] 1701-1785 (2006).
(146) The settlement included a description of "New Exemptions from Pre-disturbance Surveys" and "Species and Category Assignments," altering species classifications and establishing new exemptions. The settlement also detailed how the Survey and Manage Standard would operate going forward.
(147) 672 F.3d 1160 (9th Cir. 2012). In Turtle Island, the National Marine Fisheries Services amended a Fishery Management Plan to remove certain set limits and increase the annual incidental take limit on loggerhead sea turtles. The agency reached an agreement with environmental groups to vacate the pieces of the amendment that raised the take limit on loggerhead turtles while the agency undertook further action regarding the limit. An intervener appealed, claiming the district court's consent decree was an abuse of discretion. The Ninth Circuit held the decree was not an abuse of discretion because it merely vacated a portion of a regulation and temporarily restored the status quo ante pending new agency action. This did not promulgate a new substantive rule. Id. at 1167.
(148) Conservation Nw. v. Sherman, 715 F.3d 1181, 1187 (9th Cir. 2013). The Ninth Circuit compared Conservation Northwest to Klamath Siskiyou Wildlands Ctr. v. Boody (Boody), 468 F.3d 549 (9th Cir. 2006). In Boody, the Bureau of Land Management removed a species from the Survey and Manage Standard, claiming the removal was plan maintenance. 468 F.3d at 556-58. The Ninth Circuit held that a management plan must be amended "when an action is proposed that changes either the scope of resource uses or the terms, conditions and decisions of the plan." Boody, 468 F.3d at 556 (internal quotation marks omitted). While acknowledging Boody did not pertain to a consent decree, the Ninth Circuit reasoned that the issues in Boody contribute to the "understanding of the procedural issues" in Conservation Northwest 715 F.3d at 1186.
(149) Conservation Nw., 715 F.3d at 1185 (citations omitted).
(150) Plaintiff-Appellants also included Glenn Monahan and Nancy Schultz, each in his and her individual capacity and as a member of Western Watersheds.
(151) Defendant-Appellees also included Bob Abbey, in his official capacity as Director of the BLM; Gary Slagel, in his official capacity as Manager of the Monument; Gene R. Terland, in his official capacity as BLM Montana State Director; and Gary L. Benes, in his official capacity as Field Manager of BLM's Lewistown Field Office. Additionally, Blaine County, Chouteau County, Fergus County, Missouri River Stewards, and Phillips County joined as Defendant-Intervenors-Appellees.
(152) Proclamation No. 7398, 3 C.F.R. [section][section] 100-102 (2001).
(153) Federal Land Policy and Management Act of 1976, 43 U.S.C. [section][section] 1701-1787 (2006).
(154) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(155) Proclamation No. 7398, 3 C.F.R. [section][section] 100-102 (2001).
(156) The Breaks monument comprises more than 375,000 acres of federal land in north-central Montana. It contains essential habitat for sage-grouse and waterfowl, riparian habitat for 48 species of fish, and one of the few fully functioning cottonwood gallery forest ecosystems remaining in the Northern Plains. The area also has a strong connection to the Lewis and Clark expedition, who traveled through the area more than 200 years ago and marveled at the aesthetic beauty and abundant wildlife. Id.
(157) "Laws, regulations, and policies followed by the [BLM] in issuing and administering grazing permits or leases on all lands under its jurisdiction shall continue to apply with regard to the lands in the [M]onument." Id. at 30.
(158) 5 U.S.C. [section][section] 706(2)(A) (2006).
(159) Specifically, Western Watersheds argued that the decision violated the Taylor Grazing Act, 43 U.S.C. [section][section] 315-315n, FLPMA, 43 U.S.C. [section][section] 1732(b), BLM's own regulations, and other BLM policies.
(160) Nw. Res. Info. Ctr., Inc. v. Nat'l Marine Fisheries Serv., 56 F.3d 1060, 1067 (9th Cir. 1995) (quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985)).
(161) A "hard look" requires a "full and fair discussion of significant environmental impacts" in the EIS. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013) (quoting 40 C.F.R. [section] 1502.1 (2006)).
(162) NEPA requires federal agencies to take a "hard look" at a proposed project's environmental impacts, but it does not mandate particular results. Tillamook Cnty. v. U.S. Army Corps of Eng'rs, 288 F.3d 1140,1143 (9th Cir. 2002).
(163) Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 2003) (quoting N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 890-91 (9th Cir. 1992)).
(164) See Wetlands Water Dist. v. U.S. Dep't of the Interior, 376 F.3d 853, 868 (9th Cir. 2004) (quoting the Ninth Circuit that "the existence of a viable but unexamined alternative renders an [EA] inadequate." Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 575 (9th Cir. 1998)).
(165) In addition to Great Old Broads, Plaintiffs included The Wilderness Society. In addition to Abigail Kimbell, Defendants included: Mike Johanns, the Secretary of Agriculture; Edward Monning, the Humboldt-Toiyabe National Forest Supervisor; Jack Troyer, the Intermountain Regional Forester; USFS; and the United States.
(166) National Forest Management Act of 1976,16 U.S.C. [section][section] 472a, 521b, 1600, 1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93378, 88 Stat. 476 (1974)).
(167) 42 Fed. Reg. 26,951 (May 25, 1977).
(168) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4370[R] (2006).
(169) United States v. Carpenter, 298 F.3d 1122, 1125-26 (9th Cir. 2002).
(170) Great Old Broads preferred an alternative plan that would have replaced the road with a hiking trail. Alternatively, Great Old Broads desired the road to be moved so that it was outside of the floodplain. Great Old Broads objected to the draft ROD via comment letter for USFS's failure to incorporate its alternatives.
(171) 5 U.S.C. [section][section] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).
(172) Id [section] 704. The claims raised in federal court must be '"so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims ... raised in federal court.'" Native Ecosystems Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002) (quoting Kleisser v. U.S. Forest Serv., 183 F.3d 196,202 (3d Cir. 1999)).
(173) The Ninth Circuit noted that review of the attachments was not insurmountable, and that a careful reviewer would have recognized the attachments' significance.
(174) 16 U.S.C. [section] 1604(a) (2006).
(175) U.S. Forest Service, Inland Native Fish Strategy, Environmental Assessment A-13 (1995). INFISH was adopted to protect fish and habitat in the Columbia River basin. Id. at 1.
(176) 42 Fed. Reg. 26,951 (May 25, 1977).
(177) 102 F.3d 1273 (1st Cir. 1996) (holding that an SEIS is required when a proposal includes substantial changes from previously analyzed alternatives).
(178) Plaintiffs also included The Wilderness Society, Friends of the Missouri Breaks Monument, The National Trust for Historic Preservation, and Oil and Gas Accountability Project.
(179) Defendants also included Jaime Connell, in her official capacity as Director of BLM's Montana State Office; Mike Pool, in his official capacity as Acting Director of BLM; BLM; United States Department of Interior; and Zane Fulbright, in his official capacity as Acting Manager of the Upper Missouri Breaks National Monument. Several parties intervened on behalf of Defendants, including the Missouri River Stewards, Fergus County, Phillips County, Chouteau County, Blaine County, the Recreational Aviation Foundation, and the Montana Pilots Association.
(180) Federal Land Policy and Management Act of 1976, 43 U.S.C. [section][section] 1701-1785 (2006).
(181) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(182) National Historic Preservation Act, 16 U.S.C. [section][section] 470 to 470x-6 (2006 & Supp. 12007).
(183) The Antiquities Act of 1906, 16 U.S.C. [section][section] 431-433 (2006).
(184) Proclamation 7398 of January 17, 2001, 66 Fed. Reg. 7359 (Jan. 22, 2001).
(186) More specifically, the BMP closed 201 miles of roads and ways and four airstrips year-round, 111 miles of roads and ways and one airport seasonally, and left open 293 miles of roads and ways and five airstrips year-round. Finally, the BMP prohibited off-road vehicle use and restricted motorized watercraft use to certain days of the week in wild and scenic segments of the Upper Missouri National Wild and Scenic River.
(187) The Montana Wilderness Society is the nation's oldest grassroots wilderness organization. It works with communities to protect Montana's wilderness heritage and, quiet beauty and outdoor traditions, now and for future generations. Montana Wilderness Society, About Us, http://wildmontana.org/about-us/ (last visited July 26, 2014).
(188) The Wilderness Society is a leading conservation organization working to protect America's shared wildlands. The Wilderness Society, About Us, http://wildemess.org/about-us (last visited July 26, 2014).
(189) 5 U.S.C. [section] 706(2)(A) (2006).
(190) Montana Wilderness Ass'n v. Connell, 725 F.3d 988, 996 (9th Cir. 2013).
(192) Wetlands Water Dist. v. U.S. Dep't of the Interior, 376 F.3d 853, 868 (9th Cir. 2004) ("The existence of a viable but unexamined alternative renders tin environmental impact statement inadequate.") (quoting Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998)) (internal quotation marks omitted).
(193) Under NHPA, a federal agency must make a reasonable and good faith effort to identify historic properties, 36 C.F.R. [section] 800.4(b); determine whether identified properties are eligible for listing on the National Register based on criteria in 36 C.F.R. [section] 60.4; assess the effects of the undertaking on any eligible historic properties found, 36 C.F.R. [section][section] 800.4(c), 800.5, 800.9(a); determine whether the effect will be adverse, 36 C.F.R. [section][section] 800.5(c), 800.9(b); and avoid or mitigate any adverse effects, 36 C.F.R. [section][section] 800.8(e), 800.9(c). Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 805 (9th Cir. 1999) (per curiam).
(194) See Bureau of Land Mgmt., Release 8-73, BLM Manual 8110.21 (2004), available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/bl m_manual.Par.23101.File.dat/8110.pdf. A Class I survey is "a professionally prepared study that includes a compilation and analysis of all reasonably available cultural resource data and literature, and a management-focused, interpretative, narrative overview, and synthesis of the data." Id. at 8440.2.21A. 1. A Class II survey is a "probabilistic field survey" or a "statistically based sample survey" that "aid[s] in characterizing the probable density, diversity, and distribution of cultural properties in an area." Id. at 8110.2.21.B.1. A Class in survey is an "[i]ntensive" survey that involves "a professionally conducted, thorough pedestrian survey of an entire target area ... intended to locate and record all historic properties" and that "provides managers and cultural resource specialists with a complete record of cultural properties." Id. at 8110.2.21.C.l, C.3. The Class in survey is the most frequently employed method of inventory. See id. at 8110.2.21.
(195) Drakes Bay Oyster Company is a family-run oyster business operating in Drakes Estero within the Point Reyes National Seashore in Marin County, CA. Drakes Bay Oyster Company, About Us, http://www.drakesbayoyster.com/about_us (last visited July 26, 2014).
(196) Defendant-Appellees also included the United States National Park Service and Jonathan B. Jarvis, in his official capacity as Director of the Park Service.
(197) Pub. L. No. 111-88, [section] 124,123 Stat. 2904, 2932 (2009).
(198) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(199) Section 124,123 Stat. at 2932.
(200) press Release, Ken Salazar, Sec'y of the Interior, Point Reyes Nat'l Seashore--Drakes Bay Oyster Co. 1, 5 n.5 (Nov. 29, 2012), available at http://www.doi.gov/news/pressreleases/load er.cfm?csModule=security/getfile&pageid=332286.
(201) Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,1087 (9th Cir. 2014).
(202) 5 U.S.C. [section] 701(a)(2) (2006).
(203) winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,20 (2008).
(204) Drakes Bay, 747 F.3d at 1086.
(205) Fed. Commc'n Comm'n v. Fox Television Stations 556 U.S. 502, 513-14 (2009).
(206) Act of Nov. 10,1978, Pub. L. No. 95-625, [section] 318, 92 Stat. 3467, 3487.
(207) 40 C.F.R. [section] 1508.18 (2010).
(208) Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996).
(209) NRIC is a nonprofit organization whose stated goal is to promote the ethic that environmental quality and long term economic productivity are synonymous. Northwest Resource Information Center Inc., http://www.nwric.org/ (last visited July 26, 2014).
(210) The Council is an interstate agency established under the Power Act and is composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington.
(211) 16 U.S.C. [section][section] 839a-h (2006).
(212) Id. [section] 839b(d)(l).
(213) Id. [section] 839b(h)(l)(A).
(214) Id. [section] 839b(e)(3)(F).
(215) Id. [section] 839f(e)(5) (explaining that suits to challenge final actions of the Council are to be brought in the federal court of appeals for the region).
(216) The Bonneville Power Administration is a federal nonprofit agency that markets wholesale electrical power from 31 federal hydroelectric projects along the Columbia River, one nonfederal nuclear plant and several other small nonfederal power plants. Bonneville Power Administration, About Us, https://www.bpa.gov/news/AboutUs/Pages/default.aspx (last visited July 26, 2014).
(217) Northwest River Partners is an organization of farmers, electric utility customers, port workers, and businesses that rely on the economic and environmental benefits of the Columbia and Snake Rivers. Northwest River Partners, About Northwest River Partners, http://nwriver partners.org/abou1/ (last visited July 26, 2014).
(218) The Public Power Council is an organization that represents the Pacific Northwest's consumer-owned utilities on important issues in the region. Public Power Council, About PPC, http://www.ppcpdx.org/aboutPPC.html (last visited July 26, 2014).
(219) Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2006).
(220) See Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 317 (9th Cir. 1988) (declining to adopt a statutory interpretation that would render one portion of the statute redundant when "another interpretation ... avoids such redundancy").
(221) NRIC v. Nw. Power and Conservation Council, 730 F.3d 1008, 1019 (9th Cir. 2013).
(222) In dissent, Judge Ikuta opined that the Council's decision to include the cost estimate was well within its scope of editorial choice when writing a congressionally mandated plan.
(223) 16 U.S.C. [section][section] 3101-3233 (2006).
(224) Id. [section] 3101 (a)-(d). ANILCA defines "subsistence uses" as "customary and traditional uses by rural Alaska residents." Id. [section] 3113.
(225) Id [section]3114.
(226) id. [section] 3102 (3). "Lands" include "lands, waters, and interests therein." Id. [section] 3102 (l)-(2).
(227) See id. [section] 3202(a).
(228) John v. United States, 720 F.3d 1214, 1220 n.24 (9th Cir. 2013) (citing to 5 Alaska Admin. Code [section] 99.020 (1982), which defines "rural" as "outside the road connected area of a borough, municipality, or other community with a population of 7,000 or more").
(229) 6 96 P.2d 168, 177-78 (Alaska 1985).
(230) John, 720 F.3d at 1220 n.21 (citing Sep. 23, 1985 Letter from Bill Horn, Assistant Secretary, Fish and Wildlife and Parks, Office of the Secretary, U.S. Dep't of the Interior, to Bill Sheffield, Governor of Alaska (Sep. 23, 1985)).
(231) Alaska Stat. Ann. [section] 16.05.940 (West 2013).
(232) 860 F.2d 312 (9th Cir. 1988).
(233) Id at 316.
(234) id. at 317.
(235) 785 P.2d 1, 9 (Alaska 1989).
(236) Subsistence Management Regulations for Public Lands in Alaska, 57 Fed. Reg. 22, 940, 22, 942 (May 29, 1992).
(237) Alaska v. Babbitt (Katie John I), 72 F.3d 698 (9th Cir. 1995). The Secretaries' interpretation would have prevented all subsistence fishing from being given priority under ANILCA. Plaintiffs in these actions were concerned with losing such preference.
(238) Id. at 702.
(239) Id. at 703-04.
(240) Id. at 704.
(241) John v. United States, 247 F.3d 1032 (9th Cir. 2001).
(242) "Reservation" refers to "any body of land, large or small, which Congress has reserved from sale for any purpose." United States v. Celestine, 215 U.S. 278, 285 (1909) (discussing the definition of "Indian Country").
(243) John V. United States, 720 F.3d 1214,1228 (9th Cir. 2013).
(244) 64 Fed. Reg. 1287 (proposed Jan. 8, 1991) (to be codified at 36 C.F.R. [section] 242.4).
(245) Katie John I, 72 F.3d 698, 700 (9th Cir. 1995).
(246) John, 720 F.3d at 1243. These lands are those that have been selected for conveyance by the United States, Alaska, or an Alaskan Native corporation, but such conveyance has not yet occurred.
(247) Plaintiffs also included: Redwood County Minnesota Com and Soybean Growers; Penny Newman Grain, Inc.; Rex Nederend; Fresno County Farm Bureau; Nisei Farmers League; California Dairy Campaign; Growth Energy; Renewable Fuels Association; FKA National Petrochemical & Refiners Association; American Trucking Associations; Center for North American Energy Security; and The Consumer Energy Alliance.
(248) Defendants also included Richard W. Corey, in his official capacity as Executive Officer of the California Air Resources Board; Mary D. Nichols; Daniel Sperling; Ken Yeager; Dorene D'Adamo; Barbara Riordan; John R. Balmes; Lydia H. Kennard; Sandra Berg; Ron Roberts; John G. Telles, in his official capacity as member of the California Air Resources Board; Ronald O. Loveridge, in his official capacity as member of the California Air Resources Board; Edmund G. Brown, Jr., in his official capacity as Governor of the State of California; and Kamala D. Harris, in her official capacity as Attorney General of the State of California. Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, and the Conservation Law Foundation intervened on behalf of Defendants.
(249) California Global Warming Solutions Act of 2006, CAL. HEALTH & SAFETY CODE [section] [section] 38500-38599 (2006).
(250) 42 U.S.C. [section][section] 7401-7671q (2006).
(251) Id. [section] 7543(b).
(252) Cal. Health & Safety Code [section] 38501(a) (2006).
(253) id [section] 38550.
(254) The calculation factors included whether from the source of energy is from coal plant or a renewable source, whether coal plant or renewable, and the type of feedstock used, in creating ethanol (CA-GREET factors).
(255) cal. Code Regs. tit. 17, [section] 95482(b) (2014).
(256) See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 391 (1994) (invalidating a local processing ordinance that burdened both out-of-town and out-of-state processors); Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't. of Natural Res., 504 U.S. 353, 355 (1992) (striking down ordinance that banned out-of-county waste in county landfills); Dean Milk Co. v. City of Madison, Wis., 340 U.S. 349, 350, 356 (1951) (striking down ordinance that required milk to be processed within five miles of Madison, Wisconsin); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 265 (1984) (striking down a tax exemption for beverages produced exclusively within the state, favoring a uniquely local industry at the expense of one where it held no advantage).
(257) Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1100 (9th Cir. 2013) (quoting Black Star Farms LLC v. Oliver, 600 F.3d 1225, 1232 (9th Cir. 2010)); see Black Star Farms, 600 F.3d at 1232 (holding that where a state statute is facially neutral, a plaintiff is required to produce substantial evidence that the statute is discriminatory in effect to trigger a heightened level of scrutiny. Such effect cannot be inferred but must be proven through evidence.). The Ninth Circuit determined that American Fuels had produced no evidence showing a discriminatory effect, and the court thus would not infer such an effect.
(258) See Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003) (holding that Maine did not violate the Commerce Clause by incentivizing the use of rebates beneficial to Maine customers by drug companies). The Supreme Court differentiated Maine's practice from those found in Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935) (invalidating a New York statute that effectively regulated the price paid for milk in Vermont) and Heely v. Beer Inst., 491 U.S. 324 (1989) (invalidating a Massachusetts statute which that effectively regulated the price of beer in other states) because Maine's practice did not regulate the price of any out-of-state transaction. Maine did so through exacting "prior authorization" on the Medicaid sales of a company that did not comply, thus lowering the company's sales and market share in Maine. Walsh, 538 U.S. at 649-50, 669-70. The Ninth Circuit determined that CARB's program was more similar to the program in Pharmaceutical Research because it did not regulate wholly out-of-state transactions; but rather, regulated transactions within its borders.
(259) Feedstock is "raw material supplied to a machine or processing plant." Feedstock definition, Webster's Third New Int'l Dictionary 834 (3d ed. 2002).
(260) See S.D. Myers, Inc. v. San Francisco, 253 F.3d 461, 469-70 (9th Cir. 2001) (holding that to show threat of incompatible regulations, a party "must either present evidence that conflicting, legitimate legislation is already in place or that the threat of such legislation is both actual and imminent").
(261) Davis v. EPA, 348 F.3d 772, 786 (9th Cir. 2003).
(262) See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (holding that an otherwise lawful state statute may be unconstitutional if it is "clearly excessive" in the manner in which it impacts interstate commerce. Whether the state statute is "clearly excessive" is determined by considering the type of interest involved and whether if the interest could be accomplished by less burdensome means).
(263) in addition to the Village, Plaintiffs also included: the Inupiat Community of the Arctic Slope; Alaska Wilderness League; Center for Biological Diversity; National Audubon Society; Natural Resources Defense Council; Northern Alaska Environmental Center; Oceana; Pacific Environment; Resisting Environmental Destruction on Indigenous Lands; A Project of the Indigenous Environmental Network (Redoil); Sierra Club; The Wilderness Society; World Wildlife Fund; and Defenders of Wildlife.
(264) In addition to Sally Jewell, Defendants also included the Bureau of Ocean Energy Management (BOEM), and Tommy Beaudreau, Director of BOEM. In addition, Shell Gulf of Mexico, Inc., ConocoPhillips Company, Statoil USA E & P, Inc., and the State of Alaska intervened as Defendants.
(265) Seth Leonard, Native Village of New Hope, http://earthjustice.org/about/clients _coalitions/native-village-of-point-hope-0 (last visited July 26, 2014). "The village is the oldest continuously inhabited village in all of North America." Id.
(266) Endangered Species Act of 1973,16 U.S.C. [section][section] 1531-1544 (2006 & Supp. IV 2011).
(267) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(268) The FEIS analyzed four alternatives for the lease sale: "(1) a 34-million acre proposed lease option covering 6,156 blocks of the Chukchi Sea; (2) a no-lease option; (3) a proposed lease option excluding 1,765 blocks extending along a corridor about 60 miles from the Alaskan coast; and (4) a proposed lease option excluding 795 blocks extending along a corridor between 25 and 50 miles from the Alaskan coast." Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 494 (9th Cir. 2014).
(269) The initial law suit alleged: 1) the FEIS did not adequately analyze the impact of the project on environmental or human communities; 2) the FEIS lacked essential information about the Chukchi Sea and did not explain why the information was excluded; 3) the FEIS did not analyze the project's impact on climate change; 4) the FEIS analyzed a limited development scenario and therefore understated the impacts of oil and gas development; 5) it understated the risk of an oil spill; 6) it failed to adequately analyze the impact on eiders, a threatened species under the ESA; and 7) its analysis of the effects of seismic surveying was misleading.
(270) 42 U.S.C. [section][section] 7401-7671q (2006).
(271) Marine Mammal Protection Act of 1972, 16 U.S.C. [section][section] 1361-1421h (2006).
(272) 42 U.S.C. [section][section] 4321-4327 (2006).
(273) Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 503 (9th Cir. 2014) (quoting BOEM).
(274) In addition to Woodlands, Plaintiffs also included John Jones, III, Julie Jones, Larry White and the Oregon Coast Alliance.
(275) The case was removed to the District of Oregon shortly after being filed.
(276) In addition to the Corps, Defendants also included the National Marine Fisheries Service.
(277) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(278) Federal Water Pollution Control Act, 33 U.S.C. [section][section] 1251-1387 (2006).
(279) See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 996 (9th Cir. 2004) (espousing the view that relying on expert opinion without providing hard data hinders the ability to challenge the opinion in court and is thus inadequate under NEPA).
(280) See City of Sausalito v. O'Neill, 386 F.3d 1186, 1214 (9th Cir. 2004) (holding that an agency is able to incorporate data by reference if doing so will be more efficient and still allow for public review (citing 40 C.F.R. [section] 1502.21 (2012))).
(281) Ctr. for Biological Diversity v. Kempthome, 588 F.3d 701, 712 (9th Cir. 2009).
(282) In making these determinations, the Corps relied on the Mason Memorandum, a study that was generated to determine the possibility of hexavalent chromium generation by ORC's project. This memorandum was incorporated into the EA generated by the Corps and concluded that hexavalent chromium generation was unlikely to occur.
(283) 668 F.3d 1067,1084-85 (9th Cir. 2011).
(284) Plaintiffs also included Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii's Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, Dr. Michael Uechi, and The Outdoor Circle.
(285) Defendants also included: Leslie Rogers, in his official capacity as Federal Transit Administration Regional Administrator, Peter M. Rogoff, in his official capacity as Federal Transit Administration Administrator, U.S. Department of Transportation; Ray Lahood, in his official capacity as Secretary of Transportation; The City and County of Honolulu; and Wayne Yoshioka, in his official capacity as Director of the City and County of Honolulu Department of Transportation. Faith Action for Community Equity, The Pacific Resource Partnership, and Melvin Uesato intervened on behalf of the Agencies.
(286) National Environmental Policy Act of 1969, 42 U.S.C. [section][section] 4321-4347 (2006).
(287) 16 U.S.C. [section][section] 470 to 470x-6 (2006 & Supp. 12007).
(288) 49 U.S.C. [section] 303 (2006).
(289) See 28 U.S.C. [section] 1291 (2006) (authorizing appeals of right from final district court judgments).
(290) Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010quoting Friends of Se. Future v. Morrison, 153 F.3d 1059,1066 (9th Cir. 1998)).
(291) Laguna Greenbelt, Inc. v. Dep't of Transp., 42 F.3d 517, 524, n.6 (9th Cir. 1994).
(292) 49 U.S.C. [section] 303(c2006).
(293) See 23 C.F.R. [section] 774.7 (2013).
(294) Id l 774.9(a).
(295) 36 C.F.R. [section] 800.4(b)(12013).
(296) 5 U.S.C. [section][section] 551-559, 701-706,1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).
(297) 28 U.S.C. [section][section] 2671-2680 (2006).
(298) Defendants also included the Bureau of Reclamation, Kenneth Lee Salazar, Westlands Water District, Panoche Water District, Broadview Water District, and San Luis Water District. Additionally, Natural Resources Defense Council, The Bay Institute, Contra Costa County, and Contra Costa Water Agency intervened as Defendant-Appellees.
(299) To bring such a claim under 5 U.S.C. [section] 706(1), a plaintiff must show that the agency has failed to take a discrete action that it is legally required to take. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).
(300) San Luis Act of 1960, Pub. L. No. 86-488, 74 Stat. 156 (1960).
(301) These standards are yet to be established, and the prohibition has been reenacted nearly every year since.
(302) Westlands Water District, along with individual, affected landowners, filed suits alleging the same claims. The district court consolidated the actions.
(303) Firebaugh Canal Co. v. United States, 203 F.3d 568, 577 (9th Cir. 2000Firebaugh J) ("[W]e hold that the subsequent Congressional action has not eliminated the Department's duty to provide drainage, but that it has given the Department the authority to pursue alternative options other than the interceptor drain to satisfy its duty under the San Luis Act.").
(304) The in-valley drainage alternative called for DOI to: 1) reduce the amount of drainwater through treatment and reuse, and 2) dispose of the remaining wastewater in evaporation ponds and landfills. The alternative also included the retirement of some lands from irrigated farming.
(305) See Terbush v. United States, 516 F.3d 1125,1129 (9th Cir. 2008).
(306) The Pyramid Lake Paiute Tribe intervened on behalf of the United States. The Pyramid Lake Paiute Tribe is a Native American tribe whose reservation fully encompasses Pyramid Lake. Pyramid Lake Paiute Tribe, About Us, http://plpt.nsn.us/plpt.html (last visited July 26, 2014).
(307) Defendants also included the TCID Board of Directors and all water users in the Newlands Reclamation Project as a class. TCID is a political subdivision of the State of Nevada that represents the water rights holders within the Newlands Project. Truckee-Carson Irrigation District, Our Purpose, http://www.tcry.org/about/our-purpose (last visited July 26, 2014). The following parties intervened on behalf of TCID: the State of Nevada; Department of Conservation and Natural Resources; Division of Wildlife and Division of State Lands; Churchill
County; Dodge Brothers and Dodge Jr. Family Trust; David P. Harrigan; George and Shelly Rae Rakushin; William D. and Gwendolyn Washburn; Marvin Weishaupt; Howard D. Wolf Family Trust; Ray Conlan; Corkill Bros., Inc.; Calvin R. Moffitt and Candace J. Moffitt; Bell Family Trust; Larry L. Fritz Family Trust; David L. Matley and Christine L. Matley Family Trust and David Matley; Harold G. and Rhonda Johnson and Johnson Family Trust; A & A Dairy; Joyce Lohr; Peraldo Brothers; Stillwater Farms, Inc.; Charles P. Frey, Jr. and Debra S. Frey; Norman W. Frey; Fallon-Paiute Shoshone Tribe.
(308) See, e.g., Nevada v. United States, 463 U.S. 110 (1983); United States v. Bell, 602 F.3d 1074 (9th Cir. 2010); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364 (9th Cir. 1989); Truckee-Carson Irrigation Dist. v. Sec'y of Dep't of Interior, 742 F.2d 527 (9th Cir. 1984); United States v. Alpine Land & Reservoir Co., 697 F.2d 851 (9th Cir. 1983); Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D.C. 1973).
(309) Bell, 602 F.3d at 1085.
(310) Id. at 1087.
(311) In addition, the Ninth Circuit dismissed appeals by Churchill County and the States of Nevada for lack of standing. United States v. Bd. of Dirs. of Truckee-Carson Irrigation Dist., 723 F.3d 1029, 1035-36 (9th Cir. 2013).
(312) Nev. REV. Stat. [section][section] 533.023, 553.135, 553.0243 (2009).
(313) Defendants included: Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior; U.S. Department of the Interior; Sam D. Hamilton, in his official capacity as Director of the United States Fish and Wildlife Service; U.S. Fish & Wildlife Service; Dave Irving, in his official capacity as Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; and the United States Bureau of Reclamation.
(314) 5 U.S.C. [section][section] 551-559, 701-706,1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006).
(315) 43 U.S.C. [section] 383 (2006).
(316) Icicle Creek is a tributary of the Wenatchee River, which is itself a tributary of the Columbia River.
(317) Defendants argued 1) the Reclamation Act did not apply to the Hatchery, 2) section 8 of the Reclamation Act did not mandate a state permit, and 3) directing water from Icicle Creek into the Hatchery Canal did not constitute a "diversion" as a matter of state law.
(318) 43 U.S.C. [section] 383(2006).
(319) 5 U.S.C. [section] 551(13) (2006).
(320) Bennett v. Spear, 520 U.S. 154,177-78 (1997).
(321) Shell Offshore, Inc. v. Greenpeace, Inc., 864 F. Supp. 839, 841 (D. Alaska 2012).
(322) Shell Global, Who We Are, http://www.shell.com/global/aboutshell/who-we-are.html (last visited July 26, 2014).
(323) Greenpeace, What We Do, http://www.greenpeace.org/usa/en/campaigns/ (last visited July 26, 2014). Other actions taken by Greenpeace include illegal and tortious activities on Shell's vessels Harvey Explorer, Noble Discoverer, Nordica, and Fennica, as well as certain vessels of Cairn Energy. All direct actions were intended to prevent drilling in the Arctic. Such actions include the boarding of vessels, defacing of vessels, unfurling of banners, and the creation of human impediments to drilling activities. Shell Offshore, Inc. 709 F.3d at 1284-85.
(324) Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir. 2000).
(325) Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
(326) Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013) (internal citations omitted).
(327) Id. (internal citations omitted).
(328) winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
(329) Greenpeace USA was one of 16 independent voting members of Stichting Greenpeace Council (a.k.a., Greenpeace International), yet it was the only Greenpeace entity that was a party to this case. Together with the other 15 members, Greenpeace USA helped set Greenpeace's worldwide campaign priorities, but each Greenpeace licensee was autonomous and free to choose the tactics most likely to resonate with its local constituency. The dissent compared this to Shell's own corporate disclosure statement, which took up nearly a full page of its answering brief, and listed all of the subsidiaries and entities Shell admittedly relied on to limit its own liability.
(330) See Nat'l Ass'n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982) (holding evidence that the conduct of some members of petitioning party "colored the conduct" of all petitioners must be supported by adequate findings that specific parties agreed to use violent or unlawful means).
(331) See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (acknowledging the principal that "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action" is protected under the Constitution); Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 290 F.3d 1058, 1072 (9th Cir. 2002) (en banc) ("If ACLA had merely endorsed or encouraged the violent actions of others, its speech would be protected."); id. at 1089 (Kozinski, J. dissenting) ("The difference between a true threat and protected expression is this: A true threat warns of violence or other harm that the speaker controls.").
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|Title Annotation:||II. Natural Resources G. Pacific Northwest Electric Power Planning and Conservation Act through III. Miscellaneous, with footnotes, p. 892-921; 2013 Ninth Circuit Environmental Review|
|Date:||Jun 22, 2014|
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