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II. Natural resources.

A. Endangered Species Act

1. Sierra Club v. U.S. Bureau of Land Management, 786 F.3d 1219 (9th Cir. 2015).

In this case, the Sierra Club and other organizations (106) (collectively, Sierra Club) challenged the United States Bureau of Land Management's (BLM) decision to grant North Sky River Energy, LLC (North Sky) a right-of-way across BLM land, alleging that BLM violated the Endangered Species Act (ESA) (107) by failing to consult with the United States Fish and Wildlife Service (FWS) regarding the effects of the project. Sierra Club also alleged that BLM violated the National Environmental Policy Act (NEPA) (108) by failing to prepare an Environmental Impact Statement (EIS). The district court found for BLM after determining that North Sky would have completed the Wind Project regardless of whether BLM approved the Road Project because North Sky had a feasible alternative, and that the BLM-approved Road Project had independent utility. On appeal, the Ninth Circuit affirmed the district court's ruling. Additionally, the Ninth Circuit found that BLM did not act arbitrarily or capriciously when it changed its initial position that consulting with FWS might be required.

The Sierra Club challenged two North Sky projects: first, a wind energy project (Wind Project) developed by North Sky on 12,000 acres of private land located outside of Tehachapi, California; and second, North Sky's proposed use of BLM land for a right-of-way connecting the Wind Project with an existing state highway (Road Project). North Sky also contemplated an alternative right-of-way traversing private land (Private Road Option). Ultimately North Sky opted for the Road Project, finding that the Private Road Option would disturb vegetation and wildlife habitat.

Initially, BLM believed that the ESA required BLM to consult with FWS when reviewing the Road Project proposal. However, after North Sky submitted the Private Road Option, BLM concluded the Private Road Option was a viable alternative to the Road Project. This determination obviated the ESA's consultation requirement because it meant the viability of North Sky's operation was not dependent on BLM approval. BLM issued an environmental assessment which found that the Road Project would have no significant environmental impact, and found that the Road Project would provide dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Based on these findings, BLM issued a permit for the Road Project.

After the permit was issued, Sierra Club sued BLM, alleging its decision to issue a permit for the Road Project violated the ESA and NEPA. North Sky intervened and the parties cross-moved for summary judgment. The district court granted summary judgment for BLM, holding that BLM's decision to issue the permit was not arbitrary or capricious. The Ninth Circuit reviewed the district court's grant of summary judgment de novo.

The first issue on appeal was whether the ESA required BLM to consult with FWS regarding impacts of the Wind Project prior to approving the Road Project. The ESA consultation requirement is triggered only by federal agency action. (109) ESA consultation ensures that a federal agency considers the direct and indirect effects of its action on a protected species or critical habitat, as well as the effects of other activities that are interrelated or interdependent with the proposed action. (110) At the outset, the court determined that the Wind Project was not a federal agency action because it involved a private company developing private land without federal funds, and the Wind Project was not dependent on BLM approval of the Road Project. BLM was, therefore, not required to consult with FWS on the Wind Project's direct effects. The court noted that the Road Project was a federal agency action, and that BLM had properly consulted the ESA on the Road Projects direct effects.

The Ninth Circuit then considered whether the effects of the Wind Project were indirect effects of the Road Project, or whether the Wind Project was an interrelated or interdependent activity with the Road Project, either of which would require consultation with FWS. First, the court determined that the Wind Project was not an indirect effect of the Road Project because the Road Project was not a cause of the Wind Project. Rather, North Sky could have completed the Wind Project without BLM involvement by moving forward with the Private Road Option. Second, the court found that the Wind Project was not interrelated or interdependent with the Road Project because, as the court noted, the Road Project was not a "but for" cause of the Wind Project. In addition, the court found that the Road Project had independent utility because it promised to improve dust control, reduce erosion, and control unauthorized vehicle access to the Pacific Crest Trail. Accordingly, the Ninth Circuit held that BLM was not required to consult with FWS regarding the direct, indirect, or interrelated effects of the Wind Project.

The second issue on appeal was whether BLM had a duty to prepare an EIS under NEPA. An EIS is required for any "major Federal action significantly affecting the quality of the human environment." (111) An EIS must address the impacts of connected actions. (112) The Ninth Circuit repeated its finding that BLM's decision was not a major federal action because BLM had no control or responsibility over the Wind Project. In addition, the court explained that Wind and Road Projects were not connected, cumulative, or similar actions. (113) Two actions are unconnected if each of two projects has an "independent utility," which is determined by asking if each would have taken place with or without the other. (114) Because the Road Project had the additional utility of dust control, storm water control, and limiting access to the Pacific Crest Trail, the Road Project had independent utility from the benefit to North Sky. Moreover, North Sky would have developed the Wind Project with or without the Road Project due to the available Private Road Option.

Finally, the court found that BLM had not acted arbitrarily and capriciously when it disregarded its initial decision to consult with FWS because 1) BLM's initial position was not a published regulation or official policy, (115) and 2) BLM adequately justified its change of view by demonstrating that the Private Road Option would provide North Sky with private access to the Wind Project.

In sum, the Ninth Circuit held that BLM did not violate the ESA because the Wind Project was not a federal agency action and the Wind Project was independent from the Road Project. The court also held that BLM did not violate NEPA in its failure to prepare an EIS because the two projects had independent utility and were not connected actions. Accordingly, the court affirmed the district court's ruling.

2. Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015).

In this case, Cottonwood Environmental Law (Cottonwood) sued the United States Forest Service (USFS) in the United States District Court for the District of Montana. Cottonwood asserted that USFS violated the Endangered Species Act (ESA) (116) by failing to reinitiate consultation with the United States Fish and Wildlife Service (FWS) after FWS revised a critical habitat designation. Both parties filed cross-motions for summary judgment. While the district court ruled that USFS did violate the ESA by failing to reinitiate consultation, the court denied injunctive relief. The Ninth Circuit affirmed the district court, but also remanded to provide Cottonwood an opportunity to make a showing of irreparable harm as grounds for injunctive relief.

The case centered on the Canada lynx, a cousin to the bobcat and a threatened species under the ESA. In 2006, FWS designated 1,841 square miles of land as critical habitat to the Canada lynx. However, none of that land was National Forest land, effectively exempting National Forest land from section 7 consultation. In 2007, USFS adopted the Northern Rocky Mountains Lynx Direction (Lynx Amendments), which set specific guidelines for permitting activities determined to have an adverse effect on Canada lynx. USFS initiated section 7 consultation with FWS to insure that any action taken would not adversely affect any endangered or threatened species, and FWS issued a Biological Opinion (BiOp) that determined that the management direction in the Lynx Amendment did not jeopardize the Canada lynx. In particular, the BiOp stated that no critical habitat was designated for the Canada lynx on federal lands, necessarily resulting in FWS concluding that no Canada lynx would be affected on federal land.

Four months later, FWS announced that its critical habitat designation was improperly influenced by a previous employee, and as a result might not be scientifically accurate. In 2009, FWS revised its critical habitat designation from 1,841 to 39,000 square miles, and included eleven National Forests. Despite this significant change and addition of critical habitat in National Forests, USFS declined to reinitiate section 7 consultation with FWS on the Lynx Amendments. Subsequently, Cottonwood brought action against USFS. The district court ruled that USFS violated the ESA, but declined to provide injunctive relief. On appeal, the Ninth Circuit considered whether Cottonwood had standing to sue, whether the lawsuit was ripe for review, whether failing to reinitiate in section 7 consultation violated the ESA, and whether the Ninth Circuit could provide injunctive relief. The majority of the Ninth Circuit held that Cottonwood had standing to sue, the issue was ripe, and USFS violated the ESA. However, the Ninth Circuit affirmed the district court's denial of injunctive relief.

The Ninth Circuit first held that Cottonwood had Article III standing (117) to sue. The court found that Cottonwood's declarations established that its members extensively used specific National Forests where the Lynx Amendments apply and "demonstrate [d] their date-certain plans to visit the forests for the express purpose of viewing, enjoying, and studying Canada lynx." (118) The court rejected USFS's argument that Cottonwood lacked standing because it brought a programmatic challenge, rather than a challenge to specific implementing project that poses an imminent risk to its members. Instead, the court determined that Cottonwood properly alleged a procedural injury stemming from USFS' decision not the reinitiate consultation on the Lynx Amendments. The court then explained that Cottonwood's alleged procedural injury relaxed its burdens to show causation and redressability. The court went on to hold that Cottonwood was not required to establish what a section 7 consultation would reveal or what standards would be set if USFS would reinitiate consultation, and that Cottonwood's declarations alleging aesthetic, recreational, scientific, and spiritual injuries were not too attenuated to the procedural injury to establish standing.

The Ninth Circuit then addressed the ripeness of the lawsuit. The Court concluded that when a party like Cottonwood suffers a procedural injury, it may proceed with legal action at the time the alleged procedural failure takes place. The court explained that no additional factual development was required after a procedural injury had occurred. In so holding, the court rejected USFS's argument that Cottonwood's lawsuit was not ripe for review until Cottonwood challenged a particular project that implements the Lynx Amendments.

The Ninth Circuit next turned to the merits. Cottonwood argued that USFS violated section 7 of the ESA by failing to reinitiate consultation on the Lynx Amendments when FWS later designated critical habitat on National Forest land. USFS responded by arguing that it had no remaining obligations because it completed its action in 2007, when it made the final decision to amend the Forest Plans. The Ninth Circuit disagreed with USFS and held that USFS must reinitiate consultation on the Lynx Amendments.

USFS argued that it was not required to reinitiate consultation because it had already promulgated the Lynx Amendments and incorporated the Amendments into the Forest Plans when FWS revised its critical habitat designation. The Ninth Circuit disagreed. The court first explained that the ESA did not limit reinitiation of consultation to when there is ongoing agency action. Instead, consultation is required whenever new information reveals potential impacts of an agency action on listed species or when new critical habitat is designated that may be impacted by an agency action. The court went on to note that it had previously held that an agency had obligations for section 7 consultation even after the underlying action had been completed. Similarly, the court noted that because USFS had continuing authority over the Lynx Amendments to the Forest Plans, it had the continuing obligation to follow requirements of the ESA. The Ninth Circuit concluded that, pursuant to ESA's implementing regulations, USFS was required to initiate consultation when FWS revised its critical habitat designation in National Forests.

The Ninth Circuit then turned to Cottonwood's claim for injunctive relief. The court first noted that, starting with Thomas v. Peterson, (119) there was an exception to the traditional test for injunctive relief when addressing a procedural violation under the ESA. In Thomas, the Ninth Circuit noted that the procedural requirements of the ESA are analogous to those of NEPA. (120) Accordingly, there was no reason that the same principle of relaxed standing that already applied to NEPA should not apply to procedural violations of the ESA.

However, USFS argued that Thomas had been overturned by two Supreme Court cases. (121) In the first of the two cases, Winter v Natural Resources Defense Council, the Supreme Court rejected the Ninth Circuit's test for preliminary injunction in NEPA cases as too lenient. (122) In Monsanto Co. v. Geeitson Seed Farms, the Supreme Court disapproved of cases that do not apply the traditional four-factor test. (123) The Ninth Circuit analyzed whether the Supreme Court's analysis for the two cases of injunctive relief under NEPA extends to the ESA. The Ninth Circuit noted that, indeed, the reasoning in Thomas explicitly relied on the presumption of irreparable injury that was previously recognized in the NEPA context. "Thus, even though Winter and Monsanto addressed NEPA and not the ESA," the Ninth Circuit agreed that "they nonetheless undermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny." (124) Although the Ninth Circuit held that the traditional test of Thomas had been undermined, the court concluded that Cottonwood should not be faulted for relying on Thomas, which had been the law of the Ninth Circuit since 1985. As a result, the Ninth Circuit remanded the case to the district court to allow Cottonwood an opportunity to show irreparable injury.

In sum, the Ninth Circuit held that 1) Cottonwood had standing to sue, 2) the issue was ripe for review, and 3) USFS violated the ESA by failing to reinitiate consultation with FWS. However, the Ninth Circuit failed to grant an injunction, and instead remanded the issue to give Cottonwood an opportunity to show irreparable injury.

In dissent, Judge Pregerson disagreed with the majority opinion's ruling in regards to injunctive relief. The dissent argued that Winter and Monsanto do not address the ESA, but instead focused on NEPA's standard for injunctive relief. The dissent explained that NEPA's statutory goals are fundamentally procedural, while ESA's statutory goal is to substantially provide for the conservation of endangered and treated species and their ecosystems. The dissent argued that the ESA has a unique history and purpose, and the Supreme Court's ruling in Winter and Monsanto should not control the outcome of this case.

3. Bear Valley Mutual Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015).

In this case, several municipalities and water districts (125) (collectively, Bear Valley) sued the United States Fish and Wildlife Service, the Department of the Interior, and other federal officials (collectively, FWS), alleging that: 1) FWS violated the Endangered Species Act (ESA) (126) because it did not-cooperate with state and local agencies in resolving water resources issues that arose from the critical habitat designation of the Santa Ana sucker; 2) FWS acted arbitrarily and capriciously in revising its critical habitat designation to include previously excluded land; and 3) FWS violated the National Environmental Policy Act (NEPA) (127) by failing to prepare an environmental impact statement prior to designation. The United States District Court for the Central District of California granted FWS summary judgment on all claims. The Ninth Circuit affirmed.

The Santa Ana sucker is a small freshwater fish native to California. In the late 1990s, two coalitions formed and developed the Santa Ana Sucker Conservation Plan (SASCP) and the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP), a regional plan encompassing 1.26 million acres, to balance the incidental taking of the sucker with conservation measures. In 2004, FWS formally approved the MSHCP. Under the terms of the MSHCP Implementation Agreement (Implementation Agreement), FWS stipulated that lands within the boundaries of the MSHCP would not be designated as Critical Habitat for the Santa Ana sucker.

In April 2000, FWS listed the sucker as a threatened species, but did not designate critical habitat for the sucker in the Final Listing Rule. (128) FWS conducted additional research and issued its critical habitat designations in 2004, excluding certain "essential habitat" areas encompassed by the MSHCP and the SASCP. (129) After review and comment, FWS promulgated its 2005 Final Rule revising the primary constituent elements for the sucker and reducing the designated critical habitat from 21,129 acres to 8,305 acres. Conservation groups sued FTVS alleging that the 2005 rule violated the ESA and Administrative Procedure Act (APA), (130) and the parties settled in 2009. The settlement agreement required FWS to reconsider its critical habitat designation for the Santa Ana sucker. In 2010, FWS issued its Final Rule designating 9,331 acres as critical habitat, including areas within the MSHCP. The municipalities and water districts then brought the suit at issue in this case. The Ninth Circuit reviewed de novo the district court's grant of summary judgment for FWS, and explained that claims against an agency arising under the ESA are evaluated under the APA's arbitrary and capricious standard. (131)

Bear Valley first argued that FWS violated section 2(c)(2) of the ESA (132) by failing to work with state and local agencies to balance water resource concerns with endangered species conservation goals. The Ninth Circuit held that Bear Valley's argument failed as a matter of law because section 2(c)(2) merely announces general policy goals and contains no procedural mandate. The court explained that the ESA's policy goals are implemented through the substantive and procedural requirements found in section 4 of the ESA. (133) The court then determined that FWS complied with section 4's requirements, and therefore conformed with section 2(c)(2)'s statement of policy.

Next, Bear Valley challenged FWS's decision not to exclude land covered by the MSHCP from the Final Rule's critical habitat designation. Bear Valley argued that, since there is a standard to review an agency's decision to exclude areas from a critical habitat designation, the same standard should be used to review an agency's decision not to exclude areas. The Ninth Circuit agreed with the district court that FWS's decision was unreviewable because the statute authorizes FWS to exclude areas from a critical habitat designation, but does not compel FWS to do so. (134) Therefore, FWS's decision not to exclude the habitat at issue in this case was an unreviewable exercise of agency discretion.

While an agency's decision not to exclude essential habitat from a critical habitat designation is unreviewable, courts can review whether FWS properly included an area in a critical habitat designation. (135) Bear Valley contended that, by executing the MSHCP and the Implementation Agreement, FWS pledged not to designate any areas covered by the MSHCP as critical habitat. Bear Valley argued that FWS's failure to consider the consequences of ignoring those assurances made the 2010 Final Rule arbitrary and capricious. FWS responded that its obligations under the ESA necessarily took priority over any assurances in the Implementation Agreement, and argued it would be inappropriate and unlawful for an agency to prospectively agree to the substantive outcome of a future rulemaking. The Ninth Circuit agreed that FWS could not relinquish its statutory obligation to designate essential critical habitat through agreements with third parties. The Ninth Circuit then determined that FWS complied with the ESA because it adequately considered the impacts of designating areas covered by the MSHCP and SASCP as critical habitat in the 2010 Final Rule.

The Ninth Circuit then dispatched with Bear Valley's next two assignments of error. The court first explained that the 2010 Final Rule did not violate the "No Surprises" rule--which provides that, once a permit has been issued pursuant to a habitat conservation plan, the permittee can rely on the agreed upon cost of conservation and mitigation--(136) because the 2010 Final Rule did not require Bear Valley to undertake new or costlier conservation measures. The Ninth Circuit next explained that FWS did not fail to provide adequate notice and comment by relying on studies not in the 2009 Proposed Rule's record to develop the 2010 Final Rule because those new studies merely expanded on and confirmed information that was in the record.

Bear Valley next argued that the 2010 Final Rule designated areas unoccupied by the Santa Ana sucker as a critical habitat, and that FWS failed to explain how the unoccupied areas were essential to the conservation of the sucker or how the designated occupied areas were inadequate to meet conservation goals required by the ESA. The Ninth Circuit disagreed, explaining that the 2010 Final Rule sufficiently demonstrated that designation of unoccupied habitat was essential, which in turn demonstrated that designation of only occupied areas would have been inadequate.

Finally, Bear Valley argued that FWS violated NEPA by failing to prepare an environmental impact statement in connection with the 2010 final rule. The Ninth Circuit, however, explained that NEPA does not apply to the designation of critical habitat as a matter of law. (137) Ultimately, the Ninth Circuit affirmed the district court's decision to grant summary judgment on all claims in favor of FWS.

4. Building Industry Ass'n of the Bay Area v. U.S. Department of Commerce, 792 F.3d 1027 (9th Cir. 2015).

In this case, the Building Industry Association of the Bay Area (BLABA) (138) sued the National Marine Fisheries Service (NMFS) (139) in the United States District Court for the Northern District of California. BIABA sued NMFS under the Administrative Procedure Act (APA) (140) and the Endangered Species Act (ESA), (141) alleging a failure to follow the appropriate methodology for designating critical habitat. In addition, BIABA alleged that NMFS had violated the National Environmental Policy Act (NEPA) (142) by failing to submit an Environmental Impact Statement (EIS). The district court held that NMFS had not violated the ESA, that a decision to not exclude an area from critical habitat designation was not subject to judicial review, and that NMFS was not required to conduct a NEPA analysis when designating critical habitat. The Ninth Circuit affirmed the district court's holdings.

This case centered on the southern distinct population segment of green sturgeon and the aftermath of NFMS's decision to list the green sturgeon as a threatened species. Under the ESA, agencies are required to consider designating critical habitat upon listing a species as threatened or endangered. (143) As part of that consideration, the ESA requires the agency to consider, among other things, the economic impact of the designation. (144) If the benefits of excluding designation outweigh the benefits of designation, the agency may exclude an area from critical habit designation; (145) however, an agency may not exclude an area where the exclusion would result in the extinction of the species. (146)

Pursuant to the ESA, NMFS designated over 12,000 square miles of marine, estuary, and riverine habitat as a critical habitat. NMFS also excluded fourteen areas from its critical habitat designation, finding that the benefits of exclusion outweighed the benefits of designation for these areas.

BIABA sued, alleging NMFS had violated the APA and the ESA by failing to follow the specific methodology of section 4(b)(2) of the ESA and failing to comply with NEPA. The Center for Biological Diversity (CBD) intervened, and the parties cross-moved for summary judgment. The district court granted summary judgment for NMFS and CBD, holding that 1) NMFS had complied with the ESA, 2) NMFS's decision to not exclude was not subject to judicial review, and 3) NEPA was not implicated in critical habit designation. The Ninth Circuit reviewed the district court's grant of summary judgment de novo, and reviewed NMFS's actions under the arbitrary and capricious standard.

The Ninth Circuit first held that NMFS had complied with section 4(b)(2) of the ESA in deciding which areas to designate as critical habitat. Section 4(b)(2) states that the agency "shall designate critical habitat... after taking into consideration the economic impact," and that the agency "may exclude any area from critical habit" if the benefits of exclusion outweigh the benefits of designation and exclusion will not result in extinction of the species. (147) In rejecting BIABA's contention that the second sentence requires a specific balancing-of-the-benefits methodology, the Ninth Circuit noted the use of the discretionary term "may." In addition, the court pointed to an October 2008 legal opinion from the Department of the Interior that had independently concluded section 4(b)(2) did not contain a specific methodology. This legal opinion was entitled to Skidmore deference. (148) Finally, the court noted that the legislative history further reinforced this interpretation. The Ninth Circuit held that NMFS had complied with section 4(b)(2) because the record showed that NMFS considered the conservation value of each area, and that NMFS had estimated the economic impact of each area by assessing the level of economic activity and the level of protection required by existing regulations for each of these economic activities.

Second, the Ninth Circuit determined that NMFS's decision to not exclude certain areas from critical habitat designation could not be judicially reviewed. In rejecting BIABA's argument to the contrary, the court noted that Bear Valley Mutual Water Co. v Jewell (Bear Valley),1*' decided earlier in the same term, held that an agency's decision not to exclude critical habitat was unreviewable. (150) The court explained that this conclusion fit within the framework of Heckler v Chaney (151) where the Supreme Court held an agency decision was unreviewable where "a court would have no meaningful standard against which to judge the agency's exercise of discretion." (152) Because the second sentence of section 4(b)(2) was completely discretionary, the court had no standard against which to judge NMFS's decision not to exclude areas from designation. Accordingly, the Ninth Circuit reaffirmed Bear Valley, and held that NMFS's decision not to exclude was not subject to judicial review.

Third, the Ninth Circuit concluded that NMFS was not required to comply with NEPA in its decision to designate critical habitat. In rejecting BIABA's argument to the contrary, the court noted that this issue had already been considered and decided. In Douglas County v. Babbitt, (153) the Ninth Circuit held that critical habit designations were not subject to NEPA for three reasons: First, the ESA displaced NEPA's procedural requirements; second, NEPA does not apply to actions to critical habit designations because designations do not alter the physical environment; and third, critical habit designations serve the purpose of NEPA by protecting the environment from human impact. (154) The Ninth Circuit reaffirmed Douglas County and held that NFMS was not required to comply with NEPA in its decision to designate critical habitat.

In sum, the Ninth Circuit held that NFMS had complied with section 4(b)(2) of the ESA, NFMS's decision to not exclude under the ESA was not subject to judicial review, and NEPA was not implicated in critical habitat designation. Accordingly, the Ninth Circuit affirmed the district court's ruling.

5. Klamath-Siskiyou Wildlands Center v. MacWhorter, 797 F.3d 645 (9th Cir. 2015).

In this case, the Klamath-Siskiyou Wildlands Center and other organizations (155) (collectively, KS Wild) appealed the dismissal of its claim against the United States Forest Service (USFS). (156) KS Wild is an organization concerned with the impact of suction dredge mining on the Coho salmon's critical habitat located in Rogue River-Siskiyou National Forest (the National Forest). KS Wild argued that its letter to USFS providing notice of its intent to file suit was sufficient to state a claim under the Endangered Species Act (ESA). (157) USFS asserted that KS Wild failed to strictly comply with the ESA notice provisions and, therefore, the district court lacked subject matter jurisdiction. The district court agreed with USFS. The Ninth Circuit reversed and remanded the district court's judgment.

Under the General Mining Law of 1872 (158) and the Organic Administration Act of 1897, (159) a miner must submit to USFS a "notice of intent to operate" (NOI) if mining "might cause significant disturbance of surface resources." (160) After receiving the NOI, USFS must notify the miner if the operation will "likely cause significant disturbance of surface resources." (161) If so, the miner must submit a more detailed "plan of operations" for approval by USFS before mining can proceed. (162)

Under section 7 of the ESA, USFS must consult with the appropriate wildlife agency to ensure that any potential federal action is unlikely to "jeopardize the continued existence of any [listed] species or result in the... adverse modification of habitat of such species." (163) In Karuk Tribe of California v U.S. Forest Service (Karuk Tribe), (164) the Ninth Circuit held that USFS's review of NOIs is an "agency action" and therefore is subject to the consultation requirement of section 7 of the ESA. (165) A private citizen may bring suit to remedy a violation of the ESA, provided that written notice of the alleged violation was given at least sixty days before suit was filed. (166)

On June 12, 2012, shortly after the decision in Karuk Tribe, KS Wild sent USFS a letter as notice of its intent to file suit under the ESA. The letter stated that the National Marine Fisheries Service (NMFS) had designated critical Coho salmon habitat within the National Forest. The letter alleged that USFS approved numerous NOIs from miners, but failed to consult with NMFS before approving suction dredge mining in the National Forest. The letter claimed that USFS notified miners on several occasions that it would be unnecessary to submit a proposed plan of operations. On August 8, 2012, USFS responded that KS Wild's letter "did not provide specific information about which mining operations [were] of concern, such as names of miners or mining claims, locations, or dates of mining operations." (167) On October 3, 2012, KS Wild sent USFS a letter with an updated list of thirty-one suction dredge mining projects with an appendix identifying all the claims on the list by date and location.

On October 22, 2012, more than sixty days after its June letter but fewer than sixty days after its October letter, KS Wild filed a complaint in federal district court. KS Wild amended its complaint and specifically identified a number of NOIs that it alleged were approved without consultation, including some that did not match with those in the June notice letter. USFS moved to dismiss the amended complaint, arguing that KS Wild's June notice letter was insufficient notice. The district court concluded that KS Wild's notice to USFS was deficient and dismissed the claims. KS Wild timely appealed. The Ninth Circuit, reviewing the claims de novo, reversed and remanded.

USFS contended that KS Wild's June notice letter was deficient and relied on Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation (Southwest Center) (168) to support its contention. In that case, the Ninth Circuit held that the plaintiffs notice letters were inadequate because the letters only made general assertions of violations of the ESA. However, the Ninth Circuit disagreed with USFS's comparison to Southwest Center because KS Wild specifically alleged a geographically and temporally limited violation of the ESA. In this case, the Ninth Circuit concluded that KS Wild had provided USFS with all the necessary information to put USFS on notice of the alleged violations of the ESA, and that USFS did not need more specific information to know which NOIs might require consultation.

In sum, the Ninth Circuit held that KS Wild's June notice letter adequately notified the Forest Service of their alleged violations of the ESA. Therefore, the claim should not have been dismissed. The Ninth Circuit remanded all other questions in the suit to be addressed by the district court.

6. Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015).

In this case, Cascadia Wildlands and other environmental groups (169) (collectively, Cascadia) brought an action seeking to enjoin the Douglas Fire Complex Recovery Project (Recovery Project), which authorized salvage logging of roughly 1,600 acres of fire-damaged forest. In approving the Recovery Project, the Medford District of the Bureau of Land Management (BLM) relied on a biological opinion (BiOp) issued by the United States Fish and Wildlife Service (FWS) that concluded that the Recovery Project was "not likely to result in jeopardy to the [Northern Spotted Owl] species or destruction or adverse modification of critical habitat." (170) Cascadia claimed that FWS failed to comply with procedural requirements of the Endangered Species Act (ESA) (171) by not applying the "best available scientific data" to its biological opinion regarding: 1) the effect of barred owls on detecting the presence of spotted owls, 2) the effect of wildfires on the spotted owl habitat, and 3) FWS's 2011 Northern Spotted Owl Recovery Plan (Recovery Plan). (172) The parties consented to final disposition by a magistrate judge in the United States District Court for the District of Oregon. The magistrate judge denied Cascadia's motion for preliminary injunction. The Ninth Circuit affirmed, finding that FWS's conclusions were based on the best available science and that Cascadia had failed to establish a likelihood of success on the merits.

Cascadia first argued that FWS did not use the best available scientific information to account for the adverse impact of barred owls on the accuracy of northern spotted owl surveys, which caused FWS to underestimate the number of spotted owl sites and make unsupported "no jeopardy" conclusions. The Ninth Circuit disagreed. The court found that the record showed that FWS relied on several scientific surveys addressing the impact of barred owls on spotted owl survey results. The court deferred to FWS's judgment over what constituted the best scientific data available, and held that FWS had satisfied its statutory requirements.

Next, Cascadia argued that FWS did not use the best available scientific information when determining that the effects of wildfires did not jeopardize the spotted owl habitat. The court found that FWS relied on several scientific reports regarding pre fire and post fire habitats to support the conclusion in its BiOp. Furthermore, the court noted that a reviewing court cannot substitute its judgment for that of the agency when the agency used adequate and reliable data. Because the court concluded that the Service issued its opinion based on multiple relevant scientific studies, it rejected Cascadia's claim.

Finally, Cascadia argued that the Recovery Plan constituted the best available science and the FWS was required to follow it. The court rejected this argument for two reasons. First, the court stated that recovery and jeopardy are two distinct concepts. The court noted that a Recovery Project that does not jeopardize the spotted owl habitat does not necessarily need to promote or bring about a long-term recovery of the species. Rather, the BiOp properly focused on the Recovery Project's ability to conserve the habitat so as not to have a detrimental effect on the species population. Second, the court noted that FWS was not obligated to follow the Recovery Plan because the plan does not have the force of law and is therefore not binding on FWS.

In sum, Cascadia failed to show that FWS did not utilize the best available scientific information when issuing its BiOp that the Recovery Project would not jeopardize the Northern Spotted Owl or its critical habitat. Because Cascadia failed to show that it was likely to succeed on the merits, the Ninth Circuit affirmed the denial of the preliminary injunction.

7. Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F.3d 1031 (9th Cir. 2015).

The Center for Biological Diversity (CBD) brought suit against the United States Fish and Wildlife Service (FWS) challenging FWS's decision to sign a memorandum of agreement (MOA) based on conclusions reached in its Biological Opinion (BiOp). Specifically, CBD alleged that the BiOp failed to meet standards set forth in the Endangered Species Act (ESA) (173) and, as a result, FWS's decision to sign the MOA was arbitrary and capricious. The United States District Court for the District of Nevada granted FWS's motion for summary judgment. On appeal, the Ninth Circuit affirmed the district court's opinion.

The Moapa dace is a small thermophilic fish found in the Muddy River in the Clark County area of Nevada. FWS listed the Moapa dace as an endangered species under the ESA in 1967. The many threats the Moapa dace faces include loss of habitat from water diversions and development. In 1979, a protected area for the Moapa dace was established known as the Moapa Valley National Wildlife Refuge, which consisted of approximately 106 acres of springs and wetlands in the Warm Springs Area of the Upper Moapa Valley.

In 2002, Nevada's state engineer issued Order 1169, (174) resulting in an abeyance for any applications for groundwater appropriation in the Coyote Spring Valley. The abeyance would be in effect pending a study of the impact of pumping groundwater (pump test) on preexisting water rights. During the same time period, FWS was concerned that groundwater pumping in the Arrow Canyon, Coyote Springs Valley hydrographic basin, and California Wash hydrographic basin was causing spring flow decline in the Warm Spring area.

In 2004, FWS met with organizations and water-rights holders to identify conservation measures to assist with the Moapa dace's survival in anticipation of the pump test. In 2006, FWS and the water-rights holders entered into the MOA as a means of reconciling the respective parties' rights of use with the conservation and recovery needs of the Moapa dace. The MOA contained various monitoring, management, and conservation measures that could be grouped into two categories: those "designed to reduce pumping and dedicate water rights for Moapa dace conservation and measures designed to restore and improve Moapa dace habitat." (175) Furthermore, the MOA indicated that all parties wanted FWS to prepare a BiOp.

In 2006, FWS issued a BiOp that analyzed the possible effects of removal of 16,100 acre-feet per year from two basins in the Moapa Valley National Wildlife Refuge. (176) The BiOp stated that the groundwater pumping could result in a 31% loss of spawning habitat in one unit of the Moapa dace, but other units' spawning habitats would be relatively unaffected. (177) The BiOp further stated that temperature reductions from loss of flow in one unit could extend downstream and impact the Moapa dace by restricting reproductive potential and making the dace more vulnerable to wildfires. In addition, the BiOp focused on the conservation measures in the MOA and predicted that the measures would increase thermal habitat and reproduction potential in streams, provide secure habitats in case of water declination from groundwater developments, improve habitat in range of species, and reduce vulnerability to wildfires and other catastrophic events. Overall, the BiOp concluded that the MOA was not likely to jeopardize the Moapa dace.

In response, CBD sued FWS for declaratory and injunctive relief. The suit was brought under section 7 of the ESA, (178) the National Environmental Policy Act, (179) the National Wildlife Refuge System Improvement Act, (180) and the Constitution's Property Clause. (181) The district court granted summary judgment in favor of FWS. CBD appealed the district court's ruling of summary judgment on the ESA claim only, arguing that 1) the BiOp reached unsupported conclusions that the MOA contained enforceable and effective conservation methods, 2) the BiOp was not based on the best available science, and 3) the BiOp failed to evaluate all foreseeable consequences of the MOA.

Because the BiOp constituted a final agency action, the court applied the highly deferential arbitrary and capricious standard of the Administrative Procedure Act. (182) With that standard in mind, the Ninth Circuit first addressed whether CBD had standing to bring suit. In order to establish standing, a plaintiff must demonstrate that there exists an injury-in-fact, that the injury is traceable to the challenged conduct, and that the injury is likely redressable by a favorable decision. (183) The court found that CBD's injury-in-fact requirement was met because CBD members had various interests--scientific, spiritual, aesthetic, personal, and work-related--that would be harmed by a decline in the Moapa dace population. Because CBD alleged a procedural violation, its burden was lessened under the causation and redressability prongs; CBD needed only to show that correct procedure might influence FWS's decision to sign the MOA. Finding that CBD satisfied all three standing prongs, the Ninth Circuit held that CBD had standing to bring its claim.

The court next considered the challenges to the BiOp. CBD first argued that the conservation measures included in the MOA were not enforceable under the ESA and therefore could not factor into the MOA's jeopardy analysis. (184) The court disagreed because the MOA conservation measures constituted the entire action contemplated by FWS in the BiOp and could therefore be relied on as an action or an effect in the jeopardy analysis. Additionally, the BiOp states that formal consultation with FWS is required if any provisions of the MOA are not met. The Ninth Circuit found that this provision constitutes recourse under the ESA and makes the conservation measures in the MOA sufficiently enforceable.

CBD next argued that FWS failed to satisfy the ESA's requirement that it use the best available science when developing the BiOp. (185) Specifically, CBD argued that FWS conceded that the flow reduction trigger scheme that constituted the foundation of the "no jeopardy" finding was based on expediency rather than science. CBD supported its argument by pointing to the fact that the flow reduction triggers were negotiated and not biologically based. The Ninth Circuit noted that the ESA does not require FWS to design or plan its projects using the best science possible. Rather, once an action is submitted for formal consultation, the consulting agency must use the best scientific and commercial evidence available in analyzing the potential effects of that action on endangered species in its biological opinion. Therefore, the court concluded that negotiated terms do not of themselves prove that FWS failed to utilize the best available science when it performed its analysis.

Next, CBD argued that there was not sufficient evidence to support a finding that the MOA's conservation measures were effective at ensuring against jeopardy to the Moapa dace. Additionally, CBD argued that the court should not defer to the BiOp's conclusions because FWS failed to address concerns raised by its own scientists regarding the effectiveness of the MOA's conservation measures. The Ninth Circuit explained that CBD's claim failed because there was no evidence supporting a conclusion that FWS scientists' concerns were supported by better science than the science used in the BiOp, or that FWS disregarded better scientific information than the evidence FWS relied upon.

The court next deferred to the BiOp's "no jeopardy" finding. The court first explained that an agency only "jeopardizes" a protected species if it increases the jeopardy to that species. The Ninth Circuit found that CBD did not point to a single provision in the MOA that caused even a minor deterioration in the Moapa dace's pre-action condition, and that the negative effects stated in the MOA were caused by state-mandated groundwater pumping, not the conservation measures in the MOA themselves. The court characterized CBD's objections to the MOA and BiOP as claims that FWS did not do enough to ensure the survival of the Moapa dace. However, the court explained that holding FWS to such obligations would broaden FWS's obligations, both as an action agency and consulting agency, beyond what the ESA required. In sum, the Ninth Circuit concluded that CBD was unable to prove that the BiOp's conclusion was arbitrary or capricious.

Finally, CBD argued that by failing to issue an Incidental Take Statement (ITS), FWS acted arbitrarily and capriciously because it failed to consider all possible consequences of the proposed action. The law provides that "if after consultation... FWS concludes that the taking of endangered species incidental to the agency's action will not [jeopardize the continued existence of an endangered species, FWS] shall provide the Federal Agency with an ITS. (186) Once again, the Ninth Circuit focused on the fact that the agency action was the execution of the MOA by FWS, and explained that the execution itself does not result in pumping of groundwater. As a result, the Ninth Circuit found that there was no evidence showing an incidental take was likely to occur because FWS simply executed the MOA, and thus, FWS was not obligated to issue an ITS.

Ultimately, the Ninth Circuit held that 1) CBD had standing, but 2) FWS did not act arbitrarily or capriciously in determining, based on the BiOp, that participation in the MOA would not jeopardize the Moapa dace. The court upheld the district court's motion for summary judgment.

B. Geothermal Steam Act

Pit River Tribe v. U.S. Bureau of Land Management, 793 F.3d 1147 (9th Cir. 2015).

In this case, the Pit River Tribe and various environmental organizations (187) (collectively, Pit River) brought suit against the United States Bureau of Land Management's (BLM) in the United States District Court for the Eastern District of California. Pit River argued that the BLM's decision to continue 26 geothermal leases violated the Geothermal Steam Act (GSA), (188) the National Environmental Policy Act (NEPA), (189) the National Historic Preservation Act (NHSPA), (190) and the federal government's fiduciary trust obligation to Indian tribes, which required consulting with affected tribes. The district court dismissed Pit River's claims and found for the BLM on the pleadings. The Ninth Circuit reversed and remanded.

The GSA authorizes the BLM to issue leases for a term of ten years, to promote the development of geothermal steam on federal land and in national forests. (191) Under GSA [section] 1005(a), the BLM must continue leases that, after the initial ten-year lease period, are producing geothermal steam in commercial quantities. (192) If a lease is not producing commercial quantities of geothermal steam, the BLM may extend the lease for up to five years under GSA [section] 1005(g). (193) This latter decision is discretionary, and requires the BLM to conduct NEPA and NHPA analyses prior to granting extensions. (194)

Between 1982 and 1986, the BLM entered into an agreement (Unit Agreement) for developing and operating the Glass Mountain Area, which included granting 26 initial leases that were at issue in this case. The leases were located in the Medicine Lake Highlands, which in turn formed part of the Glass Mountain Unit (Unit) established by the BLM to manage geothermal leases. In 1990, the BLM's California office agreed to extend 23 unproven leases (195) held by one leaseholder. In 1991, the same office agreed to continue one of those 23 leases that was now producing commercial quantities of geothermal steam. In 1992, the office extended two additional leases owned by the same party.

In 1998, based on requests from the leaseholder, the BLM retroactively vacated and revoked all 25 extensions it had granted to the unproven leases and simultaneously granted 40-year continuations to those same leases, even though none of those leases was producing commercial quantities of geothermal steam. The BLM claimed that both the GSA and the Unit Agreement governing leases in the Unit obligated the BLM to continue all 26 leases. In doing so, the BLM did not explain why its interpretation of the GSA and the Unit Agreement changed to require the BLM to continue leases it previously determined could only be extended.

In 2004, Pit River challenged the BLM's decisions to continue the unproven leases. The district coin! held that Pit River lacked prudential standing under the Administrative Procedure Act (APA) (196) to bring its GSA claims because the claims were not within [section] 1005(a)'s "zone of interest." (197) The district court did not consider whether Pit River raised a claim under [section] 1005(g). The district court then dismissed Pit River's NEPA, NHSA, and fiduciary claims, finding that the BLM had acted pursuant to a nondiscretionary duty under [section] 1005(a), and that additional statutory analyses would have therefore been superfluous.

The Ninth Circuit reversed and remanded. Pit River relied on the APA to challenge the BLM's decision to vacate the lease extensions and simultaneously issue lease continuations for those same leases. The BLM agreed that Pit River had Article III (198) standing, but argued that Pit River's claims should fail because the claims did not fall within the GSA's relevant zone of interest as required by the APA. (199) To satisfy the zone of interest test, the complainant must seek to protect an interest arguably within the protective scope of the statute under which the claim arises. (200) In cases where the plaintiff is not itself the subject of the contested agency action, courts should find that the asserted interest is outside of the relevant statute's zone of interest if the interest is so marginally related to the statute, or so clearly inconsistent with the statute's implicit purposes, that it is unreasonable to assume that Congress intended to allow for such claims. (201) Whether a party's claims fall within the relevant zone of interest is properly determined using traditional tools of statutory interpretation to assess whether the statute encompasses the claim, and is therefore not a prudential standing issue. (202)

Relying on a recent decision involving standing analysis, (202) the Ninth Circuit first rejected the district court's prudential standing analysis of Pit River's claims. The Ninth Circuit then determined under which sections of the GSA Pit River's claims arose. The district court had concluded that Pit River's claims arose only under [section] 1005(a) of the GSA because Pit River challenged the BLM's decision to issue lease continuations. However, upon review of Pit River's complaint, as well as the transcript from the hearing on the parties' cross-motion for judgment on the pleadings, the Ninth Circuit determined that Pit River raised [section] 1005(a) claims in response to the BLM's 1998 decision to issue lease-continuations, and [section] 1005(g) claims in response to the BLM's simultaneous decision to reverse and vacate its earlier decision to only extend those same leases.

Regarding the zone of interest test, the Ninth Circuit first noted that Bennett v. Spear (204) requires the zone of interest analysis to be based on the particular provision of the law the plaintiff relies on, and not the overall purpose of the Act. (205) The Medicine Lake Highlands are part of the Pit River Tribe's ancestral territory, and have ongoing cultural and religious significance for the Tribe. The physical, environmental, and aesthetic integrity of the Highlands are therefore of interest to the Tribe. Further, the geothermal leases may have an adverse impact on that integrity. The BLM's failure to conduct [section] 1005(g) analyses thus impacted tangible Tribe interests. As a result, the Ninth Circuit held that Pit River's [section] 1005(g) claim was within that section's zone of interest as the claim involved interests protected by [section] 1005(g).

Pit River additionally argued that it was entitled to judgment on the merits of its GSA claims, including the assertion that the BLM continued a block of leases within the Unit when the BLM should have considered whether extensions were appropriate on a lease-by-lease basis. The Ninth Circuit remanded the question of the BLM's compliance with the GSA, but declined to direct the district court to enter judgment in Pit River's favor. Instead, the Ninth Circuit explained that determining whether the BLM violated the GSA would require the district court to undertake a thorough factual analysis before resolving the claims on the merits. The Ninth Circuit also noted that the BLM's answer to Pit River's pleadings raised both issues of fact and affirmative defenses, making judgment based solely on Pit River's pleadings inappropriate. (206)

Ultimately, the Ninth Circuit determined that the district court erred in granting the BLM judgment on the pleadings on Pit River's NEPA, NHPA, and fiduciary duty claims. The Ninth Circuit agreed with the district court that [section] 1005(a) conferred a nondiscretionary duty on the BLM to continue appropriate leases without considering environmental factors. However, because the Ninth Circuit held that Pit River raised claims under [section] 1005(g), which, if successful on remand, would require BLM to comply with NEPA and NHPA and to consult with affected tribes prior to granting lease extensions, the BLM's failure to perform such analyses precluded judgment on the pleadings in its favor.

C. Magnuson-Stevens Fishery Conservation and Management Act

Chinatown Neighborhood Ass'n v. Harris, 794 F.3d 1136 (9th Cir. 2015).

In this case, the Chinatown Neighborhood Association and other organizations (207) (collectively, CNA) sought to challenge the California Shark Fin Law. (208) The Shark Fin Law prohibited the possession, sale, trade, and distribution of detached shark fins in California. (209) CNA argued that the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (210) preempted the Shark Fin Law because the Shark Fin Law interferes with federal management of shark fishing in the exclusive economic zone (EEZ) and with the federal government's ability to balance the statutory objectives of the MSA. CNA also contended that the Shark Fin Law violates the Commerce Clause (211) by interfering with interstate commerce and cutting off the flow of shark fins through California into the rest of the country. The Ninth Circuit rejected CNA's arguments and affirmed the district court's dismissal of the amended complaint with prejudice.

The MSA was enacted to create a federal-regional partnership to regulate fishery resources. (212) Under the MSA, the federal government has sovereign rights and exclusive fishery management authority over all fish and Continental Shelf fishery resources within the EEZ. (213) The EEZ spans from the seaward boundary of each coastal state to 200 miles offshore. (214) The states retain jurisdiction over fishery management within their boundaries. (215)

"Shark finning" is the removal of fins from a living shark. Shark finning has become an increasingly common practice to meet the demand for fins used primarily for shark fin soup. As a result, tens of millions of sharks die each year despite the state and federal prohibitions already regulating the waters off the California coast. In response, the California legislature passed the Shark Fin Law, making it a misdemeanor to possess, sell, trade, or distribute detached shark fins in California. (216)

In August 2012, CNA moved for a preliminary injunction against the enforcement of the Shark Fin Law. The district court denied the motion and the Ninth Circuit affirmed. In December 2013, CNA filed an amended complaint. At the hearing on the motion to dismiss, the district court asked CNA's counsel whether "you've got the complaint where you want it," and counsel responded affirmatively. (217) Based on this response, the district court denied CNA a second round of amendments and granted defendants' motion to dismiss with prejudice. The Ninth Circuit reviewed the district court's decision on the motion to dismiss de novo and the denial of leave to amend for abuse of discretion.

In CNA's amended complaint, CNA attacked the Shark Fin Law under several theories, including preemption, violation of the Commerce Clause, and violation of the dormant Commerce Clause. Additionally, CNA requested the court find that the district court abused its discretion in failing to grant its leave to amend sua sponte. CNA was unsuccessful on each of its claims against the Shark Fin Law and on its request to find an abuse of discretion by the district court.

The Ninth Circuit first analyzed CNA's preemption argument. CNA asserted that the Shark Fin Law interferes with federal authority to manage shark fishing in the EEZ and therefore "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (218) The court disagreed, holding that the police powers of states should not be superseded unless it was the "clear and manifest" purpose of Congress to do so. The court gave two reasons for why it disfavored preemption in this case. First, there is a general presumption against preemption. This presumption applies generally, but is particularly strong in instances where Congress has legislated in an area traditionally managed by the states. (219) In this case, control over fish in state waters has historically been regulated by states. Second, there is no explicit preemption provision in the MSA. (220) CNA had merely pointed to a potential obstacle to general federal purposes, which is insufficient to overcome the presumption against preemption.

CNA also argued that because the MSA attempts to balance competing objectives in fishery management, Congress intended to prevent states from promoting one objective over others. CNA claimed that California wrongly valued of conservation over other objectives of the MSA. (221) The Ninth Circuit acknowledged various competing values within the MSA, but concluded that conservation was paramount. The court held that the Shark Fin Law was consistent with the MSA's primary goal of conservation.

CNA also argued that by failing to address on-land activities related to finning in the MSA, Congress intended to leave such activities unregulated. The Ninth Circuit rejected this argument because silence alone does not indicate preemption of state law. Rather, "a clear and manifest purpose is always required." (222)

The Ninth Circuit next analyzed CNA's Commerce Clause claims. CNA alleged that the Shark Fin Law is invalid because it curbs commerce in shark fins between California and out-of-state destinations and prevents shark fins from moving from one out-of-state destination to another through California. The court rejected these arguments because a state can regulate commercial relationships when at least one party is in California. (223) Even when a state law has significant extraterritorial effects it still does not violate the Commerce Clause if those effects result from the regulation of in-state conduct. (224) Unlike the cases relied upon by CNA, the Shark Fin Law does not fix prices in other states, require those states to adopt California standards, or attempt to regulate transactions conducted wholly out of state.

CNA also argued that according to Pike v. Bruce Church, Inc., (225) the Shark Fin Law should be struck down under the dormant commerce clause because the burden on interstate commerce is excessive compared with "putative local benefits." (226) The court rejected this argument because the Shark Fin Law does not interfere with inherently federal activities or activities that require national uniformity. The court held that without any significant burden on interstate commerce, it is inappropriate to determine the law's constitutionality based on the court's own evaluation of the benefits of the law and the State's wisdom in adopting it.

Finally, the Ninth Circuit analyzed the district court's denial of CNA's motion for leave to amend. CNA asked the court to find that the district court abused its discretion in failing to grant leave sua sponte. CNA contended that if it was permitted to plead additional facts to support its preemption claim, it could have alleged a direct conflict between the California statute and the MSA. CNA argued that the Shark Fin Law affects the ability of commercial fishers to reap the optimum yields prescribed in Fishery Management Plans for shark harvests under the MSA. The court rejected this argument and held that the MSA does not preempt a state law simply because the state law could have an effect on the realization of optimal yields. The court reasoned that there were still commercially viable uses for sharks besides their fins, so it was still possible to realize the optimal yields for shark harvests by other means without the need to detach shark fins. Moreover, the MSA could not be interpreted so broadly because Congress expressly preserved state control over commerce in fish products within state borders. Such control would certainly affect the realization of optimum yields under the MSA. Therefore, the court concluded that simply because the Shark Fin Law affects the realization of optimal yields does not mean that the Shark Fin law is in direct conflict with the MSA. Thus, CNA's amendment would not have changed the outcome in this case, and granting leave to amend would have been futile.

In sum, the Ninth Circuit held that the MSA did not preempt the Shark Fin Law because there was no clear and manifest intent by Congress to do so. The court held that the Shark Fin Law was consistent and cooperative with the purpose of the MSA, strengthening the presumption against preemption. The court also held that simply because the Shark Fin Law has an effect on the realization of optimal yields does not put it in direct conflict with the MSA. Thus, the district court did not abuse its discretion in dismissing the case because granting a second round of amendments would have been futile. Finally, the court held that the Shark Fin Law did not violate the Commerce Clause or the Dormant Commerce Clause because the effects of the law result only from regulation of in-state conduct. For these reasons, the Ninth Circuit affirmed the district court's judgment.

Judge Reinhardt dissented in part. He contended that CNA should have been granted leave to amend the complaint for their preemption claim because the defects in CNA's complaint could have been cured by amendment. Judge Reinhardt pointed out that the federal government has the authority to maximize productivity within the EEZ and the Shark Fin Law could pose an obstacle to legal shark fishing. He believed that if the fin is the main part of a shark that has commercial value and if the Shark Fin Law causes fishermen to cease catching sharks in EEZ fisheries, the federal objective of achieving optimum yield could be unconstitutionally impaired. Judge Reinhardt felt that leave to amend should be freely given and that CNA should at least have the opportunity to adequately plead its claim.

D. Outer Continental Shelf Lands Act

Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015).

In this case, the Alaska Wilderness League, as part of a coalition of environmental groups (227) (collectively, the Coalition), sought review of actions taken by the Bureau of Safety and Environmental Enforcement (BSEE) in approving oil spill response plans (OSRPs) submitted by Shell, along with exploration plans, as required under the Clean Water Act (CWA). (228) The Coalition claimed that BSEE's approval of the OSRPs violated the Administrative Procedure Act (APA), (229) the Endangered Species Act (ESA), (230) and the National Environmental Policy Act (NEPA). (231) The district court granted summary judgment in favor of the federal defendants and Shell, and the Ninth Circuit affirmed.

The Outer Continental Shelf Lands Act (OCSLA) (232) provides a process for the exploration and development of offshore oil and gas resources that includes submission of an exploration plan to the Secretary of the Interior for approval. (233) Although the OCSLA governs the actual development of oil and gas resources, the CWA supplements the OCSLA by providing structured guidance for preventing and responding to potential oil spills. The CWA requires that an OSRP accompany the exploration plan for the purpose of contingency planning and places statutory requirements on what must be included in an OSRP. (234) BSEE must "promptly review" submitted OSRPs, "require amendments to any plan that does not meet the requirements [of the Act]," and "shall ... approve any plan that meets" the statutory requirements of the CWA. (235)

The court reviewed the district court's grant of summary judgment de novo. In its review, the court considered BSEE's actions in approving the OSRPs under the arbitrary and capricious standard set forth in the APA. (236) The court noted that imder that narrow standard of review, it could not substitute its own judgment for that of the agency. BSEE had authority to promulgate rules regarding OSRPs and to review submitted plans for compliance with the requirements of the CWA; accordingly, the court reviewed BSEE's interpretation of the CWA to determine whether it was reasonable.

The Coalition challenged BSEE's approval of Shell's OSRPs as arbitrary and capricious under the APA. Specifically, the Coalition claimed that Shell's OSRP assumed that in a worst case discharge of 25,000 barrels of oil per day it could recover 90 to 95 % of any oil spilled in the Arctic Ocean, which the Coalition characterized as an unrealistic and impossibly high recovery rate. The Coalition asserted that, because Shell assumed such an impossibly high recovery rate, BSEE's approval of the OSRP was necessarily arbitrary and capricious. The court, however, held that the record did not support the Coalition's claim regarding the impossibly high recovery rate; rather, Shell was claiming it had the capacity to store 95 % of the amount discharged, not that it could actually recover that much. Accordingly, the court rejected the Coalition's claim.

The Coalition next argued that BSEE violated section 7 of the ESA, which requires federal agencies to consult with appropriate environmental agencies prior to taking actions that may affect endangered species. (237) The court explained that the consultation requirement is only triggered if there is discretionary Federal involvement or control because consultation is meaningless if the agency lacks power to implement changes. (238) The court concluded that approval of OSRPs is a nondiscretionary action, and thus ESA consultation is not triggered. In reaching this conclusion, the court applied the Chevron (239) framework to evaluate BSEE's interpretation of the CWA. Under this framework, the court first reviews the governing statute for ambiguity. If it finds ambiguity, the court then reviews if the agency's interpretation of the statute is reasonable.

The first step of Chevron required the court to review the relevant portions of the CWA for ambiguity. Upon review, the court found the statute ambiguous in two ways: in the language itself, and in the statute's structure. The court noted that the text of the CWA does not explicitly grant or deny BSEE discretion to consider additional environmental factors, such as the presence of endangered species, in the OSRP approval process. The court further noted that the applicable sections of the CWA suggest no agency discretion because they appear to operate as a checklist, with BSEE approving any OSRP that meets all requirements. Finally, the court concluded that the statute's structure added to the ambiguities of the text by characterizing BSEE's discretion using both broad language and finite criteria. Because the statute's text was ambiguous, the court proceeded to the second step of the Chevron analysis.

The second step of Chevron required the court to review BSEE's interpretation of the ambiguous statute and determine if the interpretation was reasonable. If BSEE's interpretation was a reasonable construction of the statute, the court must defer to BSEE's interpretation. BSEE read the statute as an instruction to issue regulations that explain how operators can comply with the statutory checklist. BSEE interpreted the CWA to require approval of OSRPs that meet the statutory requirements. The Ninth Circuit concluded that these interpretations of the governing statutes were both reasonable and consistent with the legislative history. Therefore, the court deferred to BSEE's interpretation of the statute, and held that BSEE's approval of the OSRPs was a nondiscretionary act that did not trigger the consultation requirement under the ESA.

Finally, the Coalition claimed that BSEE violated NEPA by failing to prepare an Environmental Impact Statement (EIS) before approving Shell's ORSPs. NEPA requires federal agencies to provide an EIS for all "major Federal actions significantly affecting the quality of the human environment." (240) The court rejected this claim because NEPA exempts agencies from the EIS requirement where an agency's action is nondiscretionary. Because the court had already concluded that BSEE must approve all OSRPs that meet the statutory requirements and could not refuse to perform that action, BSEE's approval of the plan fell within the NEPA exception. Thus, BSEE did not need to submit an EIS prior to approving an OSRP.

Because BSEE's approval of Shell's OSRPs did not violate the APA, the ESA, or NEPA, the Ninth Circuit affirmed the district court's grant of summary judgment in favor of the federal defendants and Shell.
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Title Annotation:Case summaries, part 2; 2015 Ninth Circuit Environmental Review
Publication:Environmental Law
Date:Jun 22, 2016
Words:11391
Previous Article:I. Environmental quality.
Next Article:III. Miscellaneous.
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