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Our Limits Transgressed: Environmental Political Thought in America.

I. Introduction

In his book Our Limits Transgressed: Environmental Political Thought in America, Bob Pepperman Taylor maintains that Henry David Thoreau and Gifford Pinchot, the forebears of environmental thought, strongly connected their views of the natural world with their political values and commitments.(1) Taylor believes, however, that many of the heirs of the divergent traditions of Thoreau and Pinchot have lost this connection between political vision and environmental values. In an article that preceded publication of Our Limits Transgressed, Taylor states that "[t]he ecological facts of life threaten to challenge our most dearly held political values: justice, freedom, and democracy."(2) Taylor argues in Our Limits Transgressed that, to deal with this threat, there is a pressing need to revive the political ideals of Thoreau and Pinchot. The revival of these ideals is essential to grappling with the question of how to "integrate an appropriate understanding of nature within a more general theory of politics."(3)

Our Limits Transgressed focuses on the political commitments expressed in Thoreau's and Pinchot's writings, and traces how later environmental theorists have dealt with, or abandoned, those commitments. In the end, Taylor calls for a synthesis of the best of the traditions inspired by Thoreau and Pinchot. Although Taylor claims he did not intend to present an intellectual history of the works of environmental theorists,(4) Our Limits Transgressed is essential reading for the student of environmental law and policy precisely because it summarizes the ideas of the major environmental theorists, while highlighting the neglected political values that originally inspired Thoreau and Pinchot.

II. Pastoral and Progressive Traditions

Taylor divides environmental political thought into two "well-established" traditions: the "pastoral" tradition of Thoreau and the "progressive" tradition of Pinchot.(5) While Thoreau and Pinchot differed dramatically in their views of nature and society, they both "viewed nature from an essentially political perspective."(6) Taylor argues that if this political perspective is ignored when reviewing the works of Thoreau and Pinchot, then we are left only with an "alienated naturalist" (Thoreau) and a utilitarian (Pinchot).(7) Taylor's first task is to delve into the writings of Thoreau and Pinchot to retrieve their political theories.

To determine Thoreau's view of the relationship of nature and politics, Taylor explores the meaning of Thoreau's statement that "in Wildness is the preservation of the World,"(8) and examines many of Thoreau's writings. He concludes that nature offered Thoreau not only personal inspiration but also the inspiration to search for a better political community. Summarizing the "crucial and often overlooked political core" of Thoreau's philosophy, Taylor states that:

[Thoreau] found that nature provided him with the means to criticize American politics and society and to imagine a more just political order. In nature, he believed, a person experiences the independence and humility that are necessary for building and sustaining a moral, free, and democratic community ... Nature supplied Thoreau with the principles he needed to ground both his social criticism and his vision of a more equitable America. For this better nation to exist, people must listen to the lessons of nature rather than the clattering of commercial society.(9)

Taylor believes that Gifford Pinchot also espoused a relationship between nature and political values. Pinchot's views, however, were quite divergent from Thoreau's. According to Taylor, Pinchot, unlike Thoreau, was not seeking to criticize society but to insure that necessary resources were properly managed to support a society that was already just. Pinchot was a product of the Progressive Era, and his writings reflect much of the political thought of that time. Pinchot's progressive conservationism relied on scientific management of abundant natural resources; these resources, indeed, all of nature, exist "primarily for the sake of human prosperity."(10) The proper management of these resources was necessary to support a democratic society and the ideals of equality and liberty. Taylor explains what "equality" and "liberty" mean in this context:

For Pinchot, the conservation of natural resources is of fundamental democratic value because it allows for the possibility of equality of opportunity for all citizens. Such equality is defined not so much as access to political participation or power than as access to at least a minimal level of material comfort and prosperity. ... Liberty, in turn, is thought of by Pinchot as the ability to pursue and enjoy this material equality.(11)

Having revealed the political perspective of Thoreau and Pinchot, Taylor then traces the development of the pastoral and progressive traditions, noting whether contemporary theorists have remained true to the political commitments that originally inspired Thoreau and Pinchot. Taylor first examines the theories of the contemporary heirs of the progressive tradition of Gifford Pinchot. He views contemporary progressive conservationism as falling into two schools of thought: the "Neo-Malthusians" and the liberal reformers.(12)

The Neo-Malthusians, characterized by Garrett Hardin, Paul Ehrlich and William Ophul, rejected Pinchot's belief in the unlimited abundance of natural resources, but, according to Taylor, nevertheless fall within the tradition of progressive conservationism because they retain faith in the scientific and bureaucratic management of resources. They assert, however, that liberal democratic institutions are incapable of dealing with the scarcity of resources, and therefore Taylor concludes that the Neo-Malthusians have failed to maintain Pinchot's commitment to liberal democratic ideals.(13)

On the other hand, the liberal reformers, who represent the other branch of progressive conservationism, reject the extremist concerns of the Neo-Malthusians. Taylor sees Aldo Leopold's call for a new land ethic(14) as the inspiration for these theorists, as well as for followers of the pastoral tradition.(15) Taylor identifies Roderick Nash, Christopher Stone, and Mark Sagoff(16) as reformers who seek an alternative to Pinchot's utilitarianism, but who also seek "remedies that fall within and reinforce the broader framework of democratic liberalism."(17) Nash and Stone focus on moral concepts of rights while Sagoff draws upon democratic pragmatism in addressing environmental problems. While Taylor views these theorists as supporting established democratic institutions, he also argues that they have rejected Pinchot's commitment to democratic equality because they have rejected the "materialist foundation of this equality."(18) Of the three, Taylor sees only Sagoff as being committed to maintaining a connection between the treatment of nature and democratic politics.

While Taylor believes that most contemporary progressives have failed to maintain Pinchot's political vision by not integrating "protection and preservation of nature into an overall liberal democratic program of justice and equality,"(19) he finds that some theorists are trying to maintain the connection between environmental and political thought. In particular, he views Barry Commoner as one committed to "maintaining the connection ... between conservation and distributive justice."(20) Taylor views Commoner's commitment to socialism as a new version of Pinchot's progressive liberalism.(21) While Commoner seeks to "tie his environmentalism to a democratic program of political justice and economic equality,"(22) he also believes in technical solutions to environmental problems. According to Taylor, Commoner therefore falls squarely within the progressive tradition. However, Commoner also is blind to the need to find intrinsic value in nature, and he is subject to criticism for his support of technological management of the environment. Taylor concludes his discussion of the progressive conservation tradition by observing that while some of Pinchot's ideals are still alive, particularly in the writings of Barry Commoner, the contemporary progressive movement has yet to resolve many questions.

Just as Taylor believes that many of Pinchot's heirs have lost political vision, he also believes that contemporary pastoralists following in the tradition of Thoreau have lost Thoreau's view of nature as a moral guide for developing an alternative political community. According to Taylor, pastoralism lost much of its political character after the influence of John Muir. Muir viewed wilderness as an "alternative to the human community"(23) and as a source of spiritual inspiration. Taylor concludes that Muir's interest in political problems arose only when "society threaten[ed] nature," and that he viewed American society as "something to be combatted in the name of an alternative set of individual values rather than criticized and reformed according to some more |natural' social order."(24)

The Deep Ecologists and the Biocentrists are contemporary heirs of the tradition of Thoreau and Muir. Taylor first critically examines the works of Deep Ecologists Bill Devall and George Sessions and finds that Deep Ecology offers some criticism of society and provides at least a "partial vision of what a just social order might involve."(25) It also rejects the crude utilitarianism of progressive conservationism. Yet, Taylor views the Deep Ecology movement as being absorbed mainly with self-realization, and thus having lost the power of Thoreau's political criticism. Taylor next examines the works of Biocentrists J. Baird Callicott, Holmes Rolston III, and Paul Taylor and concludes, "Biocentrism's foremost concern is the protection and preservation of nature, not the reform of society."(26) The Biocentrists attempt to balance the progressive conservation tradition by seeking intrinsic value in nature, and Taylor acknowledges that Callicott attempts to show "how environmental ethics can transform the whole of human ethics and social life."(27) Taylor believes, however, that Callicott has so far failed in this attempt, and that Paul Taylor's view is "radically apolitical."(28) Taylor ultimately concludes that the Deep Ecologists and the Biocentrists "have largely been unable to derive a coherent alternative politics and social vision from their deep respect for nature."(29)

Taylor views the American Green Movement as the best hope for reviving the pastoral tradition, and he sees Murry Bookchin as "the most important contemporary American environmentalist to retain Thoreau's original political focus."(30) Bookehin's focus on a human society realistically integrated into the natural order, his view of nature as a guide for political analysis, and his commitment to the development of a just political community place him squarely within Thoreau's original pastoral philosophy. Bookchin, however, has been involved in a dispute with the Deep Ecologists.(31) Taylor is concerned that this dispute between Bookchin and the Deep Ecologists reflects how Deep Ecology and Biocentrism are undermining the Green Movement's attempt to return to the political origins of the pastoral tradition. To the extent that the Green Movement "succumbs" to these pressures, Taylor believes it will be hindered in its "development as a viable political movement with a well-conceived political theory."(32)

III. Conclusion

Taylor concludes that many of the contemporary theorists in both the pastoral and progressive traditions have strayed from the political commitments of Thoreau and Pinchot. However, those traditions are still evolving, and theorists such as Murry Bookchin and Barry Commoner demonstrate that those commitments have not been completely lost. In the Preface to Our Limits Transgressed, Taylor expresses the conviction that future environmental political theory must attempt to synthesize the best of the progressive and pastoral traditions.(33) In the conclusion of his book, Taylor states that:

[T]he best of the progressive conservation tradition reminds us that any reform of our relations with the natural world must be in harmony with the greatest of our democratic values - equality and freedom. The best of the pastoral tradition teaches us that such reform must challenge the human arrogance and crude materialism found in much of liberal society. Whether or not humility before nature can be integrated with a commitment to democratic life is the question that remains to be answered, and we cannot avoid it any longer.(34)

Taylor does a great service for environmental political theory by raising this question. As he points out, this question has been expressed before, particularly by Lynn White in his famous essay The Historical Roots of Our Ecological Crisis.(35) Yet, just as Lynn White's political observation" has been virtually overlooked, the political commitments of Thoreau and Pinchot also seem to have been neglected. The importance of Our Limits Transgressed lies in Taylor's revival of the political elements of the philosophies of Thoreau and Pinchot and in his succinct presentation of the ideas expressed by contemporary environmental theorists and their critics. For those who wish to test Taylor's analysis of the works of the many theorists he discusses, Taylor provides excellent citations to their works and to the works of many critics as well.

While Taylor neither offers an answer to the political question he raises nor discusses how to harmonize the disparate views of the pastoral and progressive traditions, he inspires readers to consider the possibilities and to search for inspiration in the writings he discusses.


A. The Clean Air Act

1. Citizens for Clean Air v. EPA, 959 F.2d 839 (9th Cir. 1992)

Plaintiffs challenged a permit issued to the City of Spokane for construction of a solid waste incinerator. The challenge was on grounds that Spokane's proposal did not use recycling as a best available control technology (BACT) to reduce emissions. After the Washington Department of Ecology approved the permit, plaintiffs sought review by the EPA. After EPA twice denied plaintiffs' administrative appeals, plaintiffs sought judicial review of the agency's action.

The Ninth Circuit denied the plaintiffs' request for judicial review. With respect to the initial denial the court held, first, that EPA's refusal to consider recycling as a possible BACT was not arbitrary and capricious because federal regulations require a permitting authority to respond only to a significant comment - one that shows why the refusal had possibly significant results. Plaintiffs here had chosen to rely on a "common sense" argument of "burn less, pollute less." Plaintiffs therefore failed to meet the "significant comment threshold," which required an indication of "what materials recycling would remove from the waste stream, and what regulated air pollution would thereby be further diminished after existing control technologies have been taken into account." Second, the EPA Administrator's application of the term "best" in the context of BACT, as requiring a quantification of a technology's effectiveness, was not erroneous. Third, the Administrator's rejection of plaintiffs' petition was not arbitrary and capricious even though the Administrator had approved recycling as part of a draft New Source Performance Standard (NSPS) for incinerators nationally, because the NSPS focuses on incinerators generally, while the permit for Spokane's incinerator was approved under the Prevention of Significant Deterioration (PSD) Program, which focuses on the particular incinerator in Spokane, taking into account Spokane's air quality. Thus BACT will not necessarily be the same in both programs.

The court then held that the Administrator's decision not to reconsider in plaintiff second petition was not arbitrary or capricious because plaintiffs second petition was no more specific than the first.

2. Coalition for Clean Air v. Southern California Edison Co., 971 F.2d 219 (9th Cir. 1992)

This case involved state and federal efforts to bring California's South Coast Air Basin into compliance with federal clean air standards. A brief overview of events leading up to the current litigation follows. The Clean Air Act Amendments of 1970 required EPA to establish National Ambient Air Quality Standards (NAAQS) for any air pollutants that may be harmful to the health and welfare of the public, and directed the states to design State Implementation Plans (SIPs) to assure the implementation, maintenance, and enforcement of the NAAQS within each state. EPA was to promulgate its own Federal Implementation Plan (FIP) if it disapproved a SIP or if the state failed to promulgate a SIP.

EPA approved California's ozone and carbon monoxide SIPs on July 30, 1984, although it had no proof that the SIPs would assure attainment of the NAAQS by the statutory deadline. A citizen petitioned the Ninth Circuit in September 1984, seeking review of EPA's approval. In litigation involving that petition, the Ninth Circuit held that EPA had exceeded its authority in approving California's SIPs without determining if the control measures would demonstrate attainment by the 1987 deadline. The court, then ordered EPA to disapprove the relevant portions of the SIP and to promulgate a FIP for the South Coast Air Basin. The EPA disapproved the Basin's carbon monoxide and ozone SIPs on January 22, 1988. Plaintiffs then filed suit to compel EPA to meet its statutory obligation of promulgating an ozone and carbon monoxide FIP for the Basin. EPA and plaintiffs entered into a settlement agreement in March 1989, which required EPA to promulgated a FIP. On September 5, 1990, the EPA published a proposed FIP and prepared to finalize it on February 28, 1991. Then on November 15, 1991, Congress enacted the Clean Air Act Amendments of 1990.

Fifteen days later, the EPA filed a motion in the District Court for the Central District of California to vacate the settlement agreement. The district court agreed with EPA that Congress, by enacting the Clean Air Act Amendments of 1990, intended to relieve the EPA from promulgating a FIP for the Basin until such time as California had prepared a new SIP in accordance with the new criteria and timetables of the 1990 Amendments, and then only if the EPA had rejected the new SIP. The court granted EPA'S motion to vacate the settlement agreement and dismissed the case. The plaintiffs appealed.

In the current case, the Ninth Circuit reversed by a two to one decision, ruling that EPA's obligation to promulgate a FIP for the Basin was not affected by the enactment of the Clean Air Act Amendments of 1990. The court remanded with instructions for the district court to reinstate the settlement agreement and to establish an "expeditious schedule" for the final promulgation of a FIP. In doing so, the Ninth Circuit held, first, that the amended language of the Clean Air Act section 110(c)(1)(b) did not relieve EPA of its duty to promulgate the FIP for the Basin based on its January 1988 disapproval of California's proposed SIPS. Second, enforcing the plain language of section 110(c)(1)(b) would not preempt California from the opportunity to prepare a SIP under the new criteria of the amendment, because EPA's proposed FIP for the Basin contained identical attainment deadlines to those provided by the 1990 Amendments. Thus EPA's current obligation to promulgate a FIP would not deprive the Basin of any additional time for compliance. Finally, EPA misperceived the potential of state preemption because the 1990 Amendments allowed California to propose, and the EPA to approve, revisions to its SIP at any time prior to the promulgation of a FIP.

3. United States v. Vista Paint Corp.,' No. 92-55160, 1992 U.S. App. LEXIS 24747 (9th Cir. Sept. 24, 1992)

A paint company manufactured and sold noncomplying paints from 1985 until October 1987, in the South Coast Air Quality Management District (SCAQMD) and in the San Diego Air Pollution Control District (SDAPCD). The District Court for the Northern District of California found the manufacturer had violated the Clean Air Act, and granted the government's summary judgment motion as to the manufacturer's liability and awarded the government civil penalties and attorneys fees. The court also dismissed the manufacturer's counterelaims and third-party complaint against the EPA, the SCAQMD and the SDAPCD.

The Ninth Circuit affirmed the dismissal of the counterclaims and third-party claims, and affirmed the summary judgment as to the manufacturers liability, but reversed the summary judgment as to civil penalties and remanded to the district court for trial on the penalty issues. The court held that because the manufacturer had opportunities, under section 307 of the Clean Air Act, to comment on the inclusion of the local rules in California's State Implementation Plan, and to challenge EPA's approval of the inclusion of those rules, the district court lacked subject matter jurisdiction over the third-party complaint, the counterclaim, and the affirmative defenses regarding invalidity.

The court further found that summary judgment as to the manufacturer's liability was properly granted because the company's president had testified that noncomplying paint was sold in 1987, and admitted that information was available when it was requested by the EPA, but the company nevertheless refused to comply with the EPA's request. However, the court said that summary judgment as to civil penalties was improper in light of numerous factual disputes concerning matters that the Clean Air Act section 113(e)(1) requires a court to consider in assessing civil penalties. Thus a genuine issue of material fact was found to have been raised by the declarations of the manufacturer's president regarding potential loss of jobs resulting from the penalty and regarding sales and profits in 1991, although no business records, tax returns or accountant affidavits were presented. Further, the court found that the fact that the manufacturer sold noncomplying paint in 1987 does not by itself establish that it acted in bad faith, remarking that although a violator's good faith is irrelevant to the seriousness of the violations, it is relevant in determining the violator's efforts to comply. Lastly, the court held that EPA must act on State Implementation Plan revisions within a reasonable time, and the question of EPA's delay in responding to the San Diego revision of the revisions raised a question of fact which precludes the grant of summary judgment.

B. Water Pollution

1. Slaven v. BP America, 973 F.2d 1468 (9th Cir. 1992)

Plaintiffs, individuals injured by the spill of 400,000 gallons of Alaskan crude oil off Huntington Beach, California, filed suit against the Trans-Alaska Pipeline Liability Fund (the Fund) and others under the strict liability provisions of the Trans-Alaska Pipeline Authorization Act (TAPAA). Prior to the spill, the oil had been "trans-loaded" from a supertanker to the American Trader. The American Trader then ran over its own anchor, puncturing its hull and causing the spill. The Fund moved to dismiss the action on the ground that TAPAA did not apply to oil spills from vessels that were not loaded at an Alaskan pipeline terminal facility. The district court found for plaintiffs and the Fund appealed.

TAPAA was enacted in 1973 to offset the U.S. dependence on foreign oil. Section 1653 of TAPAA sets forth a comprehensive liability scheme for both land and marine transportation of Alaskan oil. Section 1653(c) caps liability at $100 million; the owner/ operator is responsible for the first $14,000,000, and the Fund, financed by a tax on the owner of the oil, is responsible for up to $86 million.

The Ninth Circuit reviewed the district court's interpretation of the TAPAA strict liability provisions de novo. The issue presented was whether TAPPA's strict liability provisions follow the oil or the vessel. The court first reviewed the plain language of Section 1653. Section 1653(c)(1) limits strict liability to oil that has been transported via the trans-Alaskan pipeline and "loaded on a vessel at the terminal facilities of the pipeline." Section 1653(c)(7) states that strict liability ceases when "the oil has first been brought ashore at a port under the jurisdiction of the United States." The court found that the statutory language was ambiguous, but because the overall aim of the statute was to regulate the movement of oil, the court favored imposing strict liability.

The court next reviewed TAPAA's legislative history and found nothing expressly conditioning strict liability on a ship having been loaded at an Alaskan Pipeline terminal. Rather, the court found ample legislative history to confirm that Section 1653 was intended to insure that producers bore the environmental costs of transport. Furthermore, failure to impose strict liability might frustrate congressional intent, because ships could transload immediately after pulling away from the terminal, "divesting themselves of strict liability before the hazardous voyage even begins."

Finally, the court reviewed regulations of three federal agencies charged with implementing TAPAA. The Department of the Interior, the Federal Maritime Commission, and the Coast Guard each interpret Section 1653 as applying to trans-loaded oil. In other words, the agencies' regulations confirmed that strict liability followed the oil, not the vessel. In light of the combined force of TAPAA's plain meaning, legislative history and implementing regulations, the Ninth Circuit imposed strict liability on the Fund.

2. American Mining Congress v. EPA, 965 F.2d 759 (9th Cir. 1992)

The American Mining Congress (AMC) challenged new EPA regulations regarding stormwater discharge permits, issued under the Clean Water Act (CWA) section 402(p), arguing that EPA erroneously required stormwater discharge permits for inactive mining sites. Since the regulations were meant to control "stormwater discharges associated with industrial activity," AMC argued that permits should not be required of inactive sites because there was no "activity" at abandoned mines. The Ninth Circuit upheld the regulations and dismissed AMC's arguments. Primarily, the court found no reason in the statute or legislative history to prevent the inclusion of inactive mines. The court held that the regulations do not impose retroactive liability because they require permits only for future discharges from abandoned mining sites. In addition, the court held that the regulations did not duplicate, vary, or frustrate the Surface Mining Control and Reclamation Act's Abandoned Mining Lands program.

3. Natural Resources Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992)

This case was argued on the same day as American Mining Congress v. EPA(2) and dealt with the same regulations under the Clean Water Act. Unlike the AMC, the Natural Resources Defense Council (NRDC) had limited success in overturning EPA's regulations for stormwater discharge permits.

NRDC succeeded in two of its challenges to the regulations. The Ninth Circuit struck down the exemption that EPA provided for construction sites comprised of less than five acres and the court struck down the exemption provided for "light industry" when stormwater discharges are uncontaminated. The court upheld the exemption available for oil and gas facilities when stormwater at those facilities is uncontaminated, however. The group unsuccessfully challenged the definition and regulatory scope that EPA developed for the regulation of municipal separate storm sewer systems.

4. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992)

Pulp mills and environmental groups petitioned the Ninth Circuit for review of dioxin limits or total maximum daily loads (TMDLs) issued by EPA pursuant to the Clean Water Act (CWA). The pulp producers claimed the TMDLs were too stringent, while the environmental groups contended that the TMDLs were too liberal. After reviewing the language of the CWA, the Ninth Circuit declined to review the merits of the petitions because it lacked jurisdiction.

33 U.S.C. SS 1369(b)(1) of the CWA sets forth seven EPA determinations that trigger federal appellate jurisdiction. The court found that subsection (E), which establishes appellate review of EPA action "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345," to be the most applicable section in this case. The difficulty in applying subsection (E) in this instance was that the EPA issued the TMDLs under 33 U.S.C. SS 1313, a section not expressly included in subsection (E).

The parties agreed that the TMDLs are "effluent limitations," but disagreed as to whether both effluent limitation" and other limitation" in subsection (E) were modified by the phrase under section 1311, 1312, 1316, or 1345." The court held that the qualifier applied to both antecedents, thus subordinating preferred syntax form to sensible statutory construction. The court also rejected petitioners' argument that the TMDLS promulgated under SS 1313 were included in SS 1311 by reference, because the argument was based upon legislative history written years after the CWA was passed. The court then found that SS 1313 TMDL determinations were separate from SS 1311 effluent limitations.

Two further points weighed against appellate jurisdiction. First, the court found, and EPA conceded, that review of EPA's decision was available in district court. Second, the court characterized the omission of SS 1313 from the very specific list of statutes to which SS 1369(l)(e) refers as a political matter best left to the Congress and the President.

C. Hazardous Materials

1. Chemical Specialties Manufacturers Ass'n v. Allenby, 958 F.2d 941 (9th Cir. 1992)

Allenby holds that California's Proposition 65, which requires businesses to give "warning" to the public, is not preempted by labeling restrictions in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Hazardous Substances Act (FHSA).

In 1986, California passed Proposition 65 as the Safe Drinking Water and Toxic Enforcement Act, which required manufacturers of carcinogenic or reproductively toxic substances to provide adequate warnings to the consuming public. Proposition 65 provided that either labeling of products or posting notices at the point of sale would satisfy the warning requirement of the Act.

The court held that direct labeling requirements are unconstitutional because they are expressly preempted by FIFRA. However, the requirement of posting warning signs at the point of sale were not preempted. The court reasoned that the FIFRA definition of "labeling" was not intended to include signs which are unattached to product containers, and which do not accompany products during the period of use. Thus, Proposition 65 was not unconstitutional because it gave the manufacturer the option to comply through either labeling or posting signs.

Similarly, the court found that Proposition 65 was not preempted by FHSA. FHSA preempts state "cautionary labeling" requirements which include "directions for use." Industry argued that Proposition 65 warning signs are, in effect, directions on how to use products, because the direct the purchaser to use the product safely. The court rejected this argument and interpreted "directions for use" by its ordinary meaning, for example, specifications regarding how to mix or apply a product.

A final noteworthy point is the court's discussion of the preemption of state laws regarding product liability. In dicta, the court hinted that state law tort suits would be preempted to the extent they are based on inadequate labeling. The court reasoned that without preemption, manufacturers would undertake additional labeling beyond the call of the federal statutes in an attempt to escape state tort liability. Some courts have held this to be an imposition of labeling requirements in addition to or different from FIFRA which FIFRA prohibits.

2. Jones-Hamilton Co. v. Beazer Materials & Services, 973 F.2d 688 (9th Cir. 1992)

In Jones-Hamilton, plaintiff (J-H) entered into an agreement with Wood Treating Chemicals Company to formulate raw materials at J-h's facility. Beazer succeeded Wood Treating Chemicals Company in the agreement, and provided raw materials and retained ownership of them throughout the formulations. In addition, the parties' agreement contained a "spill provision" which allowed for up to two percent of the raw materials to be spilled. When contamination was discovered at the J-H site, J-H filed suit under CERCLA seeking cleanup costs and a declaratory judgment as to Beazer's potential liability for "arranging for disposal" of Beazer's raw materials at the J-H facility.

The Ninth Circuit followed the Eight Circuit's decision in United States v. Aceto Agricultural Chemicals Corporation,(3) holding that companies owning a particular substance may be liable for disposal that occurs when a third party processes or refines that substance. The court reasoned that Beazer falls within the plain meaning of CERCLA section 107(a)(3), which makes persons arranging for disposal of hazardous substances liable for certain damages and costs of cleanup. This was found to be so because Beazer retained ownership of the materials, and the parties' agreement contemplated that some of the materials would be spilled, and CERCLA's definition of disposal includes spilling.

3. Les v. Reilly, 968 F.2d 985 (9th Cir. 1992)

Petitioners sought review of an EPA final order that permitted the use of four cancer-inducing pesticides (benomyl, mancozeb, phosmet, and trifluralin) as food additives. The principle issue was whether the Delaney Clause of the Federal Food, Drug, and Cosmetic Act (FFDCA) permits EPA to list a substance as a permissible food additive when the substance poses only a de minimis cancer risk. The court held that the intent of the Delaney Clause is unambiguous: EPA is prohibited from establishing any regulations which allow carcinogenic substances, regardless of the amount or significance of risk, to be used food additives. The court set aside EPA's final order denying the plaintiff's petition to revoke the food additive regulations.

4. United States v. Speach, 968 F.2d 795 (9th Cir. 1992)

Defendant Speach was convicted of transporting hazardous waste to an unpermitted facility in violation of the Resource Conservation and Recovery Act (RCRA) section 3008(d)(1). Speach argued that in order to be convicted of illegal transport under section 3008(d)(1), a person must know that the receiving facility does not have a RCRA permit. It was the government's position that the Ninth Circuit should follow the reasoning of United States v. Hoflin,(4) which held that conviction for unlawful disposal under section 3008(d)(2)(a) does not depend on defendant's having knowledge that there was no permit for disposal of the waste. The Ninth Circuit agreed with defendant Speach and held that to be convicted under RCRA section 3008(d)(1) a person must know the facility had no permit. The court distinguished Hoflin by noting that the structure of RCRA section 3008(d)(1) differs markedly from RCRA section 3008(d)(2)(a) and that the statutory construction relied on in Hoflin was inapposite to the section at issue.

5. Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., 976 F.2d 1338 (9th Cir. 1992)

In Kaiser, the court held that a contractor who spreads contaminated soil over uncontaminated property is liable as an operator of a facility at which hazardous substances were disposed of, and as a transporter of hazardous substances.

Defendant Ferry was hired to excavate and grade a portion of land for a proposed housing development. While excavating the development site, Ferry spread contaminated soil over other parts of the property. Catellus filed a third-party complaint against Ferry for contribution. The district court concluded that Ferry was not a person who could be liable under CERCLA section 107(a) and dismissed Catellus' claim.

The Ninth Circuit concluded that Ferry's activities at the site were sufficient to implicate him as an operator at the time of disposal. The court noted that operator liability only attaches to parties who have the authority to control the release of hazardous substances. The court found that Ferry had control over the excavation and grading activities and that these activities caused the release.

The court also found Ferry liable as a transporter of hazardous substances. Ferry argued that on-site disposal of hazardous substances does not fall within the scope of CERCLA section 107(a)(4). The court disagreed and stated that there is no logical basis for transporter liability to hinge solely on whether a person moves hazardous substances across a recognized property boundary.

6. California v. Blech, 976 F.2d 525 (9th Cir. 1992)

Blech holds that CERCLA does not grant a private right of action for costs associated with removal of asbestos released wholly within a structure. Defendant Blech was the owner of a building leased by the State of California. A fire caused asbestos to be released inside the building. After Blech refused to abate the hazard, California decontaminated the building at its own expense and filed suit, claiming that Blech was the owner of a facility from which there was a release of a hazardous substance, and Blech was therefore liable under CERCLA. The Ninth Circuit refused to hold Blech liable as an operator and cited prior Ninth Circuit decisions for support. The court found further support in CERCLA section 104(a)(3)(b), which precludes the EPA from responding to releases from a product that is part of the structure of a building when the resulting exposure is wholly within the structure. The court reasoned that Congress also intended to preclude private parties from recovering costs incurred under these circumstances.

D. National Environmentat Policy Act

1. United States v. Gila Valley Irrigation District, 961 F.2d 1432 (9th Cir.1992)

The Gila River Indian Community intervened in a suit brought by the United States to review the actions of the Water Commissioner responsible for executing and enforcing provisions of the 1935 Gila Consent Decree. The Decree established the relative rights of Indian and non-indian users to Gila River water. Two issues regarding the Commissioner's calculation of the amount of "accessions" - water available for apportionments in addition to those made regularly on the first of the year, were raised on appeal: First, whether the Commissioner's use of the "stored water released" method to calculate the amount of accessions violated the terms of the Decree, and second, whether the Commissioner violated the Decree by not accounting for water lost in transit from the Coolidge Dam to irrigation users at the Ashurst-Hayden Dam.

The Ninth Circuit held that the Commissioner's use of the I'stored water released" method did not violate the Decree. The Indian Community advanced three arguments on this issue: First, that because the "stored water released" method measured depletions rather than directly measuring accessions, it violated the Decree as a matter of law. The Ninth Circuit found that the Decree defines, but does not specify, a means of measuring accessions. The "stored water released" method was an acceptable means of measuring accessions as it did not redefine accessions or alter the way they are apportioned. Second, the Indian Community argued this method is so inaccurate that the district courts decision upholding it was clearly erroneous, and that an alternative method should be used. The Ninth Circuit held that while the "stored water released" method had the potential to be very inaccurate, the evidence did not establish that it was actually so inaccurate as to render the district court's decision clearly erroneous. Finally, the Indian Community argued that the district court's decision violated principles established by the Ninth Circuit in prior cases holding that agreements regarding Indian rights should be construed in favor of the Indians. The Ninth Circuit found that the district court did not violate these principles because the district court's decision did not involve a construction of the Decree, but only involved findings of fact involving "the practicality of a method of measuring reservoir accessions."

The Ninth Circuit also held that the Commissioner had violated the Decree by failing to consider water lost in transit when calculating the supplemental apportionments. Testimony established that the amount of water lost would represent between eight and thirty-one percent of the total volume of water released. The Ninth Circuit found that the unambiguous language of the Decree required that the loss be taken into account, notwithstanding the Irrigation Districts' alternative interpretations, nor the fact that no party had objected between 1936 and 1984.

2. Fund for Animals v. Lujan, 962 F.2d 1391 (9th Cir. 1992)

The Fund for Animals brought suit against various state and federal government defendants, asserting that defendants' failure to prepare an EIS prior to adopting a plan for the management of the Yellowstone National Park bison herd violated NEPA and the Montana Environmental Policy Act (MEPA). The plan acknowledged that private hunters and state game wardens would continue to kill adult bison that left the park, and that calves leaving the park would be neutered and sold at auction. The district court held for the defendants, and plaintiffs appealed the denial of a preliminary injunction.

The defendants pursued five jurisdictional theories in asserting that the suit was improper. First, the federal defendants claimed that the Fund lacked standing because its members suffered no injury resulting from the killing of bison under the plan. The Ninth Circuit held that the Fund had standing because its members would suffer a diminished opportunity to see bison in the park, and because of the "psychological injury" suffered by those members of the Fund who had witnessed bison killings.

Second, the state defendants successfully asserted that the Eleventh Amendment barred the Fund's NEPA and MEPA claims against them. The court held that absent consent from the state, a federal court cannot hear claims that a state government or its officials have violated state law, and that a claim brought directly against a state or one of its agencies for violations of federal law is also barred by the Eleventh Amendment.

Third, the state defendants asserted that NEPA does not apply to state officials unless the state and federal action are sufficiently intertwined to create a single federal action under NEPA. The court held that because Montana received no federal money, goods or services, and did not require federal approval, to kill the bison, the state and federal actions were not sufficiently interrelated to apply NEPA to the state defendants. The court noted it would be inequitable for Montana, having directed the killing of bison for many years, to be penalized under NEPA for agreeing to participate in a plan to reduce the number of bison actually killed.

Fourth, the federal defendants asserted that res judicata barred the Fund's NEPA claim because the present claim was identical a claim brought by the Fund in 1985. The court rejected this argument, noting that the present action challenged the 1990 plan, whereas the 1985 action challenged the defendants' decision to allow bison to leave the park, knowing the animals would be killed. Therefore the claims were not identical.

Finally, both the state and federal defendants claimed that the suit was barred by collateral estoppel, because the present claim involved the same issues as the 1985 suit. The court also rejected this argument, because the issues presented in the 1985 case clearly differed from those under the 1990 plan to manage the herd.

The Ninth Circuit then denied plaintiffs' request for a preliminary injunction, noting that even when plaintiffs have shown a NEPA violation, they are automatically entitled to a preliminary injunction. The court held that the district court had not abused its discretion in denying the injunction since the Fund had not shown "irreparable injury or a balance of hardships tipping in its favor." This was so because of the bison herds' ability to increase its numbers despite the killings, the fact that the herds could not be shown to be genetically independent, and the fact that the bison wandering outside the park presented a risk of disease to humans and cattle.

3. Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992)

Anchorage brought suit, asserting that a Memorandum of Agreement (MOA) between the EPA and the Army Corps of Engineers, concerning mitigation under Clean Water Act (CWA) dredge and fill permits, was not adopted in compliance with the Administrative Procedure Act (APA) and NEPA. After affirming the district court's ruling that the plaintiff's claims under the APA were not ripe, the Ninth Circuit reached plaintiff's NEPA claims. The court held that section 511(c) of the CWA exempts from NEPA's EIS requirement the EPA Administrator's actions taken in pursuance to the CWA, and that the MOA was such an action. The court also interpreted section 511 of the CWA as exempting EPA Administrator actions taken in pursuance to the CWA from NEPA's section 4332(E) requirement to consider alternatives. The court reasoned that this was the proper result because the EPA and the Corps must consider many of the same factors under both NEPA and the CWA before issuing guidelines. EPA Administrator decisions in pursuance of the CWA, such as the MOA, are thus subject to the "functional equivalent" of analysis under NEPA. The court further found that this result was consistent with precedent from other Circuits holding that NEPA does not apply to the EPA, whose mission is to protect the environment, with the same force as it does to other agencies.

4. Northern Alaska Environmental Center v. Lujan, 961 F.2d 886 (9th Cir. 1992)

Plaintiffs appealed from a district court order dissolving an injunction that had prevented the National Park Service from approving additional mining in the Denali, Wrangell-St. Elias, and Yukon-Charley Alaskan national parks until EISs studying the cumulative environmental effects of mining were prepared for each park. The Park Service had prepared the required EISs and asked the district court to allow the approval of mining applications to resume. The plaintiffs alleged the EISs were inadequate as they did not adequately consider measures mitigating the effects of mining, assess the impact of nonmining activities conducted outside the areas studied in the EISs, or address the impact that simultaneous mining in several study areas would have on animals traveling through those areas.

The plaintiffs argued that these considerations should have been accounted for in the preparation of the EISs because the Park Service would inevitably approve some applications after resuming its consideration of applications for mining operations. Site-specific impacts should thus be considered under California v. Block,(5) since there had been an "irreversible and irretrievable commitment of the availability of resources." The court found that such impacts could be considered at a later time because the Park Service had committed itself, through its EISs and the position it had taken in the litigation, to evaluate future applications under NEPA. The plaintiffs could thus challenge those later decisions as they arose. The court also held that the EISs considered the cumulative impacts projected under each EIS's ten-year conjectural "mining development scenario" to the extent that informed decisionmaking - the watchword of NEPA - was promoted.

5. Seattle Community Council Federation v. Federal Aviation Administration, 961 F.2d 829 (9th Cir. 1992)

Plaintiffs challenged as unreasonable the FAA's decision to not prepare an EIS for an FAA order changing flight patterns for turbine-powered aircraft at Seattle-Tacoma International Airport. In perhaps the last Ninth Circuit opinion reviewing an agency's decision not to prepare an EIS under the "reasonableness" standard,(6) the court considered four issues, and held that the FAA's decision was reasonable. First, on the issue of the noise level standard used by the FAA, the court held that because the standard was established by federal regulation, it was not unreasonable.

Second, the court held that the FAA's reliance on cumulative noise measurements, as opposed to single-event, noise measurements was reasonable because neither CEQ nor FAA regulations require single-event testing, FAA regulations appear to require cumulative testing, and other Circuits considering the question have all held that the determination of which testing methods are appropriate is within the ambit of agency discretion. Third, the court considered whether the FAA could reasonably conclude that the change in flight plans would not affect the noise level inside or outside the existing area in which airport noise reaches 65 decibels on an average day - the "65 Ldn contour." The court found that the changes in flight plans largely affected operations only above 3000 feet, an altitude below which the FAA has determined effects on noise sensitive areas must be studied through an EA/FONSI or an EIS. The operations affected below 3000 feet occurred over waterbodies, and therefore did not affect noise sensitive areas. The court concluded that in light of its findings the FAA could reasonably conclude that noise levels would not be affected in a manner requiring an EIS. Fourth, regarding whether the cumulative impacts of the order were properly considered, the court held that the order was only meant to allow the airport to handle existing traffic more efficiently. Any increase in air traffic occurring subsequently, therefore, would not result from implementation of the order but from the increasing demand of air travellers. Because any increase in flights would not be attributable to the order, the court held that the FAA did not need to consider the effects of the increase.

6. Concolor v. United States Forest Service,(7) No. 35593, 1992 U.S. App. LEXIS 1227 (9th Cir. Jan. 2, 1992)

Plaintiffs challenged a Forest Service decision to allow commercially guided hunting of black bear and cougar in Oregon's national forests on the basis that an Environmental Impact Statement (EIS) should have been prepared before special permits to allow such hunting were issued. Noting that the state-imposed limits on the number of cougar and black bear that could be taken remained the same whether the Forest Service allowed commercially guided hunting or not, the Ninth Circuit concluded that NEPA's EIS requirement was not triggered because the federal action would not have a significant effect on the environment.

Plaintiffs also claimed that the Forest Service violated NEPA's public notice provisions by not stating in letters to interested organizations that it was preparing an EA, and by failing to circulate the EA. The court held that NEPA does not require the circulation of EAs, and that NEPA's purpose of involving the public was satisfied in this case.

7. Snohomish County Public Utility District No. 1 v. Bonneville Power Administration,(8) No. 70527,1992 U.S. App. LEXIS 14592 (9th Cir. June 15, 1992)

In a contract dispute between utility companies, the Ninth Circuit held, inter alia, that "only those local agencies that are |primarily responsible for environmental quality' have standing to bring suit" for failure to prepare an EIS.

E. Nuclear Waste

1. Idaho Department of Health and Welfare v. United States Department of Energy, 959 F.2d 149 (9th Cir. 1992)

The state of Idaho tried unsuccessfully to stop imports of nuclear waste from Colorado. The Ninth Circuit had previously rejected a claim by Idaho that the shipments violated the Nuclear Waste Management Act, and enjoined the state from its threatened use of force to stop the shipments. Here, The Ninth Circuit vacated a preliminary injunction granted in Idaho's favor by the district court. The injunction was granted because of Idaho's claim that these shipments violate Idaho's clean air regulations.

The conflict began in the 1960s, when the federal government entered into an agreement with a public utility company in Colorado whereby the Fort St. Vrain nuclear power plant would be built and the federal government would accept spent fuel in Idaho for storage and reprocessing. The plant went on line in 1979 and 120 shipments of fuel were accepted by Idaho from 1980 to 1989. The plant was later closed and the federal government agreed to accept the remaining spent fuel at the Idaho facility. Idaho challenged the shipments under its implementation of the Clean Air Act. Idaho argued that the storage of new waste constitutes a modification of the existing facility such that a permit is needed. Since the state has the power to require permits for sources when those sources have undergone new construction or modification, Idaho claimed that the facility must get a permit before accepting any more waste. Alternatively, Idaho claimed that each shipment of fuel is a new "stationary source" under the regulations and hence each shipment needs a permit.

Idaho's regulations define stationary sources as any "emissions unit," thus, Idaho argued, the spent fuel shipments were stationary sources requiring permits. The court found that the shipment and storage of the wastes did not cause releases into the ambient air because of containment and filtration, therefore spent fuel is not an emissions unit and not new construction. The court held that there had not been any modification of the facility.

Additionally, the court held that it would not defer to the state's interpretation of its own regulations when the interpretation was "put forth merely as a litigation position." The court noted that Idaho had not raised this interpretation of its regulations until after a substantial amount of waste had entered the state and after it failed in previous arguments to the court.

Idaho's preliminary injunction preventing the importation of nuclear waste was vacated.

II. Native Americans

1. Beck v. United States Department of Commerce, 982 F.2d 1332 (9th Cir. 1992)

The Marine Mammal Protection Act of 1972 (MMPA), imposes a moratorium on the taking of marine mammals, but allows limited exemptions for Alaskan Native takings. Alaskan Natives challenged the validity of two U.S. Fish and Wildlife Service regulations implementing the MMPA that restricted the Alaskan Native exemption for both subsistence takings and takings for the production of authentic native products. The first regulation limited "authentic native articles" to those produced on or before December 21, 1972. The second prohibited any taking of sea otters.

The district court invalidated the regulations, thereby rendering moot charges that the Fish and Wildlife Service had brought against Alaskan Natives for taking sea otters. The government ultimately acquiesced to the judgment. At issue was whether environmental groups, who were allowed to permissively intervene on behalf of the government's position to uphold the new regulations, had standing to defend the regulation and to appeal the district court's finding once the government dismissed its appeal and acquiesced in the district court's judgment. The Ninth Circuit first held that the environmental groups had standing, then addressed the validity of the regulations.

The government claimed that the Ninth Circuit lacked subject matter jurisdiction over the intervenors because no case or controversy existed between the intervenors and the remaining Alaskan Native parties to the suit. The Ninth Circuit rejected this argument after reviewing its jurisdiction de novo. The court found that the intervenors had shown an injury-in-fact that was traceable to the action and was redressable by the relief sought within the meaning of Article III. Furthermore, the intervenors' interests were adversely affected by the district court's invalidation of the regulations. The intervenors thus had valid independent grounds upon which to challenge the regulations.

The Ninth Circuit then invalidated the regulations after analyzing the validity of the regulations in light of the plain wording of the MMPA, information that Alaskan Natives had historically taken sea otters, and its inability to find any indication that the MMPA limited the Alaskan Native exemption to certain marine mammals nor anything defining authentic handicraft as only those crafts commonly produced before 1972.

2. Native Village of Tyonek v. Puckett, 953 F.2d 1179 (9th Cir. 1992)

The jurisdictional and sovereignty issues raised when the Alaskan Native Village of Tyonek sought to evict nonmembers from village territory pursuant to a village ordinance exemplifies the complexity of these issues in the context of federal Indian law.

The Village of Tyonek filed two complaints at the district court level. The first complaint alleged that the nonmembers' presence in the Village violated a village ordinance, and the second sought to enjoin tribal members from leasing their homes to the nonmembers. The nonmember renters filed counterclaims against the Village and third party complaints against Village Council members. The tribal member lessors moved to dismiss the Village's complaint against them. The district court dismissed the Village's complaints on the grounds that it lacked subject matter jurisdiction over the enforcement of native village ordinances, while failing to distinguish between the application of tribal ordinances against tribal members and nonmembers. Further, the district court held that the Village and Village Council members were immune from suit under the doctrines of sovereign and derivative sovereign immunity.

The Ninth Circuit affirmed the district court's dismissal of the Village's attempted application of its ordinance against the tribal members for lack of subject matter jurisdiction. The court found that the application of a tribal ordinance to tribal members did not involve a federal question. However, the court found that the district court did have subject matter jurisdiction over the Village's complaint against nonmembers. The court found that the Village's attempt to bar nonmembers from remaining in the Village for any period longer than twenty-four hours required a showing by the Village that it had the authority to enact and enforce such an ordinance under federal law. The Ninth Circuit remanded this issue to the district court.

While the issue of subject matter jurisdiction depends upon the status of the defendant, it appears that the Ninth Circuit believes that tribal sovereign immunity depends upon the status of the land upon which an issue arises. The Ninth Circuit originally affirmed the district court's findings that the Village and the Council members were immune from suit. These issues were, however, appealed to the Supreme Court, which remanded the present action for consideration in light of Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma.(9) The Oklahoma decision held that the doctrine of sovereign immunity prevented the State of Oklahoma from imposing a tax on the sale of cigarettes on lands "validly set apart for the use of . . . Indians . . . under the superintendence of the Government."

The nonmembers argued that the Village was not immune because the Village land was not validly set apart as indian Country as it was held in fee simple by Village residents as a corporation formed pursuant to the Alaska Native Claims Settlement Act (ANCSA). The nonmembers reasoned that the Village residents' fee simple ownership of the land demonstrated that the land was not under federal government superintendence. The Ninth Circuit found that fee simple ownership by village residents did not prevent the land from being characterized as Indian Country. The court also found that general federal laws such as the Alaska National Interest Lands Conservation Act, and the Indian Child Welfare Act, provided evidence of continuing federal government superintendence. Additional evidence of the Village's dependence on federal government supervision included federal financial assistance which the Village received for education and housing.

Finally, the nonmembers argued that the Village Council members waived their derivative sovereign immunity because their attempt to apply the ordinance was an act of racial discrimination that exceeded the scope of the Council members' authority, subjecting them to violation of the Civil Rights Act and state tort law actions. The court held that the official act in question, voting pursuant to the Village ordinance, was within the scope of the Council's authority.

III. Natural Resources

A. Endangered Species Act

1. Lane County Audubon Society v. Jamison, 958 F.2d 290 (9th Cir. 1992)

Jamison arose out of the controversy surrounding the Bureau of Land Management's (BLM's) 1990 document entitled "Management Guidelines for the Conservation of the Northern Spotted Owl," commonly known as the Jamison Strategy. The Strategy established the criteria for selection of land for logging on BLM lands, including approximately 1,149,954 acres of old growth forests suitable for spotted owl habitat in western Oregon. Lane County sought an injunction in District Court for the District of Oregon barring any sales until the Strategy had undergone the consultation process required by section 7 of the Endangered Species Act (ESA). On April 4, 1991, the district court enjoined the BLM from implementing the Strategy pending compliance with section 7, but stated in its order that 1991 sales were not affected by its order. Lane County appealed. BLM cross-appealed the district court's order holding that the Strategy was "agency action" and contended that it substantially complied with the ESA by submitting the individual 1991 sales for section 7 consultation.

The Ninth Circuit, in an opinion by Judge Shroeder, agreed with the district court's decision that the Strategy was an agency action. The court also found that the Strategy might affect the spotted owl because it sets forth criteria for harvesting owl habitat. The court found that the district court's injunction was proper because BLM violated the ESA by not consulting with the U.S. Fish and Wildlife Service (FWS) before the Strategy was implemented through the adoption of individual sale programs.

The court then addressed the plaintiff's appeal regarding sales. The government contended that despite the district court's injunction against implementation of the Strategy, the individual sales should be allowed to proceed under Timber Management Plans (TMPs) issued between 1979 and 1983 because Lane County Audubon's ESA challenge was not directed at the TMPs. The court disagreed with the government's position, reasoning that if the Strategy was an action requiring consultation, then the BLM's reinstatement of the TMPs would also constitute such action. Moreover, the court reasoned that the adoption of the Strategy in the first place was an acknowledgement by the BLM that the old TMPs were inadequate to meet the ESA's requirements. The court also noted that because the BLM has successfully argued in the past that decisions on individual sales necessarily implicated the underlying programmatic EIS for the TMPs to which the decisions were tiered, BLM could not now claim that the individual sales at issue here exist in total isolation from the Strategy to which they are similarly tiered. Thus, the court held that because neither the underlying TMPs nor the Strategy has ever been submitted to the FWS for consultation, the individual sales could not go forward until the consultation process mandated by the ESA is complete.

The court enjoined the BLM from conducting any new sales pending the completion of the consultation process, reasoning that any new sales would violate the ESA's prohibition on the "irreversible or irretrievable commitment of resources" during the consultation period. The court remanded to the district court for reconsideration of the issue of whether the 1991 sales already announced but not awarded should be enjoined.

2. United States v. Venter,(10) No. 91-50084, 1992 U.S. App. LEXIS 621 (9th Cir. Jan. 14, 1992)

The United States filed criminal charges against Venter for violating the Endangered Species Act's prohibition against commercially importing and selling threatened species. Venter imported nine Mountain Zebra skins that he had purchased in South Africa. Upon entering the United States, Venter signed a notarized affidavit pledging that the skins would remain his personal property. Venter then advertised the skins for sale and was arrested by a U.S. Fish and Wildlife Service agent.

A grand jury indicted Venter on three counts of criminal misconduct. The first two counts addressed Venter's knowing importation and sale of threatened wildlife in violation of the Endangered Species Act. The third count based on 18 U.S.C. $S 1001 addressed Venter's wilful misrepresentation of material facts within the U.S. Fish and Wildlife Service's jurisdiction. The jury acquitted Venter of the first two counts, and convicted him on the third count.

Venter appealed to the Ninth Circuit, arguing that a rational jury could not have convicted him on the third count, having acquitted him on the first count. The court rejected this argument because an acquittal on one count does not prevent conviction on a separate count.

Venter also claimed that the district court erred in failing to instruct the jury that he should have been acquitted on all counts if the government could not prove that he knew his alleged method of sale was illegal. Venter alleged that he had planned to use the nine imported zebra skins as collateral for the sale of replacement skins, which he would import from Africa under the buyer's name and for the buyer's personal use. The Ninth Circuit affirmed the district court's conviction, finding that Venter's collateral sale theory was not supported by law and thus need not have been presented to the jury.

B. Fish and Wildlife

1. Northwest Environmental Defense Center v. Brennen, 958 F.2d 930 (9th Cir. 1992)

The Ninth Circuit affirmed a district court decision granting summary judgment to the Secretary of Commerce in a dispute over the validity of federal fishing regulations for the Oregon coastal coho salmon. The Northwest Environmental Defense Center (NEDC) asserted that federal fishing regulations violated the Magnuson Act's prohibition against overfishing. The Ninth Circuit found that the agency's interpretation of "overfishing" was permissible, and therefore did not violate the Act.

The Pacific Fishery Management Council (Council) is one of eight councils set up by the Magnuson Act to govern federal regulations of fisheries. The Council must submit management plans within its geographic area (including Oregon) to the Secretary for approval, who ensures consistency with the Act and all applicable law. After several amendments, a Framework Amendment was established in 1984 that provided streamlined procedures for annual adjustments to ocean harvest levels, among other issues. In 1986, the Council set all Oregon coastal naturally spawning (OCN) coho escapement levels, which designated the numbers of fish that are allowed to escape ocean harvest to spawn. In 1983, the coho stock crashed and only 57,000 fish returned to coastal streams to spawn. Because fish spawn in three year cycles, NEDC protested the 1986 levels that allowed for a 142,800 OCN coho escapement, less than the 170,000 prescribed in the 1984 guidelines.

NEDC filed suit over the 1986 regulations, asserting that: 1) the Secretary amended the salmon plan without proper procedure; 2) the regulations violated the Magnuson Act, NEPA and the Coastal Zone Management Act (CZMA); and 3) the composition of the council violated the Appointments Clause. In 1987, before the suit was resolved, the Secretary approved an amendment to the Salmon Plan that introduced an "abundance-dependent" method for setting annual escapement goals. NEDC filed a second suit, essentially raising the same issues. The first action was dismissed as moot following the end of the 1986 salmon fishing season, and the Ninth Circuit reversed and remanded. On remand, the parties agreed that the 1987 suit was controlling except as to the CZMA claim. The district court granted summary judgment for the Secretary on both the CZMA claim and 1987 suit. NEDC appealed and the Ninth Circuit affirmed.

The Secretary contended that 1986 suit was time-barred because it was filed thirty-four days after regulations were filed in the Federal Register. However, the Ninth Circuit agreed with NEDC that absent actual notice, regulations are issued on date of publication, not before, and therefore the suit was timely filed. On the merits, the Ninth Circuit upheld the Secretary's decision as not being arbitrary and capricious. NEDC claimed that the regulations violated two provisions of the Magnuson Act, which provide: "(1) conservation and management measures shall prevent overfishing,... [and] (2) conservation and management measures shall be based upon the best scientific information available." The Secretary first countered that his definition of "overfishing," while differing from NEDC's definition, was reasonable and consistent with the plain language of the Act. The court agreed, saying that "the statute provides the Secretary with broad discretion to define optimum yield and overfishing ... [a]nd that harvest levels above maximum sustainable yield do not necessarily constitute overfishing within the meaning of National Standards ...." Additionally the Ninth Circuit said that NEDC had not provided evidence that the abundance-dependent escape goals were inconsistent with the Secretary's definition of overfishing, that is, long-term inability to attain maximum sustainable yield. Second, the Secretary contended that the Act allows consideration of socio-economic as well as the best biological-scientific information available in determining harvest levels. The court agreed, and said that NEDC had no scientific evidence inconsistent with the Secretary's decision to use abundance-escapement goals. Thus, the Secretary's actions were not arbitrary or capricious.

NEDC also claimed that the Secretary should have prepared an EIS for the 1987 Amendment. However, the Ninth Circuit said it would uphold the agency's decision if it was reasonable, that is, "fully informed and well considered." The Secretary completed an environmental assessment for the 1987 Amendment and found the escapement floor of 135,000 would not jeopardize reproduction of future stocks. Thus, while NEDC may have disagreed with the findings, the Secretary's decision not to prepare an Environmental Impact Statement was not unreasonable.

The court did not address NEDC's CZMA procedural claim of inconsistency with the state's program with respect to the 1986 regulations. As those regulations were superseded by the 1987 Amendment, for which a full consistency determination was prepared, no injury was found to have resulted from a 1986 procedural violation.

Finally, the court found that NEDC lacked standing to raise claims that the composition of the Council violated the Appointments Clause. The court reasoned that because the cause of NEDC's claimed injury was not fairly traceable to the alleged constitutional infirmities of the Council, the relief sought would not redress that injury.

2. Trustees for Alaska v. Department of the Interior," No. 91-70551, 1992 U.S. App. LEXIS 14603 (9th Cir. June 3, 1992)

Petitioners asserted that the Secretary of Interior's approval for ARCO's plan for exploratory operations in the Beaufort Sea violated the Outer Continental Shelf Lands Act, as the Secretary was required to reject the plan until ARCO complied with the incidental take provision of the Marine Mammal Protection Act (MMPA). The Ninth Circuit held the case was moot and dismissed the action.

The Secretary approved ARCO's exploration plans in 1991, but advised the company that no taking of marine mammals was permitted under MMPA without first obtaining Letters of Authorization. Petitioners objected to approval of the plan prior to full compliance with MMPA. However, all exploration activities were completed in 1992, and ARCO submitted affidavits demonstrating that it planned no future on-ice activity around the area in question. Thus, the court held that as it no longer could grant effective relief to the petitioners, the case was moot.

The petitioners appealed the decision on two grounds: 1) it contested the dismissal, arguing that declaratory relief would still be an effective remedy; and 2) it contested the mootness finding because the issue was "capable of repetition yet evading review." The Ninth Circuit disagreed with both arguments, as both contentions are only valid in limited situations which were not present in this case. Additionally, the case was not "capable of evading review" because petitioners did not preserve their challenge. Thus, the court lacked jurisdiction to consider petitioner's claims.

C. Grazing

1. Fallini v. Hodel, 963 F.2d 275 (9th Cir. 1992)

The Fallinis, owners of the Twin Springs Ranch in Nevada, grazed their cattle on public lands under a permit from the Bureau of Land Management (BLM) pursuant to section 4 of the Taylor Grazing Act. They were also granted the authority to improve these public lands by drilling and operating deep wells for livestock watering. After drilling several wells, the Fallinis constructed guardrails around the wells and troughs in order to keep out wild horses that roam in the area, while at the same time allowing access to cattle and other animals. The BLM demanded that the Fallinis remove the barriers. The Fallinis did so, but left barriers at one well. The BLM retaliated by canceling their permit. The Fallinis, although unsuccessful at the agency level, prevailed in challenging the cancellation of their permit in the district court. The Ninth Circuit affirmed.

The BLM claimed that since the permit required the Fallinis to make the water available to "wildlife," and the permit allowed the agency to cancel the permits for noncompliance, the agency acted within its authority by canceling the permit or requiring removal of the guardrails. The district court found that the agency had acted beyond its authority and jurisdiction, holding that the term "wildlife," as used in the 1967 permit, did not include wild horses. According to the Ninth Circuit, "wildlife," as contemplated in the permit, included sheep, deer, coyote, fox, birds, and rodents. The 1971 Wild Free-Roaming Horses and Burros Act, which was passed after the permit was written, protects wild horses, but they were not considered wildlife at the time the Fallinis' permit was issued. Moreover, the original purpose of the permit and the Taylor Grazing Act was to stabilize and protect sheep and cattle ranchers, not to protect other wildlife. Thus, the Fallinis were acting pursuant to their permits and pursuant to the purposes of the Taylor Grazing Act. The Ninth Circuit upheld the district court, but it did not reach the lower court's other holdings including the finding that the permit cancellation was a regulatory taking of the water right or that the agency's decision was unduly influenced by political pressure from wild horse activists.

D. Lacey Act

1. United States v. Atkinson, 966 F.2d 1270 (9th Cir. 1992)

In Atkinson, the Ninth Circuit revisited the issue of wild game valuation under the Lacey Act. The Act is triggered when the market value of the animals sold, which is a question of fact for the jury, exceeds $350. The U.S. Sentencing Guidelines also suggest boosting the offense four levels to a higher level when the value of the game taken exceeds $20,000. The Ninth Circuit previously held that the "sale of wildlife" under the Lacey Act did not encompass the sale of guide services employed in pursuit of illegally taken game. In response to the Stenberg(12) decision, Congress added section 3372(c) to the Act with the express purpose of overturning the Stenberg holding by allowing the jury to consider the value of services, permits, and licenses in the equation.

Atkinson claimed that the district court erred in allowing the jury to consider the price of his guide services in determining the market value of illegally taken deer. Atkinson argued that an animal's market value is determined by the aggregate value of its parts on the open market. The Ninth Circuit rejected this analysis and held that the market value of an animal taken in a guided hunt is the amount a hunter is willing to pay for the opportunity to participate in the hunt. The court reasoned that, for purposes of the act, the commodity being sold is the opportunity to illegally hunt game with the assistance of a guide. Based on this rule, the court upheld the district court's findings that the total value of Atkinson's illegally taken deer was $21,000.

2. United States v. Miller, 981 F.2d 439 (9th Cir. 1992)

Defendant and his son were convicted of violating the Lacey Act by selling and transporting, and conspiring to sell, and transport cacti in interstate commerce in violation of Arizona state law. Aside from an evidentiary question concerning the co-conspirator exception to the hearsay rule, the defendant argued his conviction was improper because the government had not proved that he sold a Cereus giganteus, the botanical name for a saguaro. As a fallback position, defendant argued that the indictment was impermissibly broadened when he was convicted, because the indictment specified that the plant involved was a Cereus giganteus. The plant had been reclassified Carnegeia gigantea in 1908 to honor Andrew Carnegie. The Ninth Circuit in an opinion by Judge Noonan held that the botanical name of the plant is not an element of the offense.

3. United States v. Hobbs,(13) No. 91-30283, 1992 U.S. App. LEXIS 15457 (9th Cir. June 25, 1992)

Appellant Hobbs, a member of the Colville Confederated Tribes, illegally shot and killed a deer on the Colville Indian reservation and then transported the deer to Seattle. Hobbs was convicted of violating the Lacey Act for acquiring and transporting a buck deer knowing that it was taken and possessed in violation of tribal law. Hobbs argued that Indian Tribes have exclusive jurisdiction over criminal offenses committed by one Indian against another Indian under the intra-Indian offense exception, and therefore, he could not be prosecuted under the Lacey Act. The Ninth Circuit disagreed with Hobbs' argument and reaffirmed an earlier decision holding that the prohibitions of the Lacey Act apply to tribal members acting with the confines of Indian reservations. The court reasoned that the intra-Indian offense exception does not preclude the application, within a reservation, of general federal law such as the Lacey Act. The court noted that Hobbs' transportation of the deer was the basis for the Lacey violation. The court reserved judgment on whether shooting a deer by itself amounts to an "acquisition" and thus a violation of the Lacey Act.

E. Mining Rights on Public Lands

1. Webb v. Lujan, 960 F.2d 89 (9th Cir. 1992)

The Ninth Circuit affirmed the district court's grant of summary judgment for the Department of the Interior Board of Land Appeals (IBLA). The district court determined that eleven of Webb's mining claims were void because of his failure to comply with the Federal Land Policy and Management Act (FLPMA).

Appellant Webb was challenging a determination by IBLA that the lode claims (as opposed to placer claims) were void because he failed to comply with FLPMA's section 314 recording requirements. Webb appealed to the IBLA, claiming that the BLM erroneously failed to consider section 38 of the General Mining Law of 1872, and asserting placer claims. Webb further asserted that placer claims had never been contested by the BLM. He also argued that the claims did not have to be recorded with the BLM within the statutory deadline. The IBLA disagreed, finding that Webb could not get valid placer rights from invalid lode locations, and that he had failed to follow FLPMA's recording requirements. FLPMA section 314 requires specific filings with the BLM to validate lode or placer mining claims. Filing requirements include: 1) annual filing of records of either a notice of intention to hold the mining claim or an affidavit of assessment work done; 2) a description of the mining location sufficient for it to be located; 3) a copy of the official record of the notice or certificate of location, sufficient for location; and 4) failure to file per requirements constitutes abandonment of the mining site.

The Ninth Circuit held that the statutory language was clear on its face, and that legislative history additionally demonstrated that Congress did not intend to exempt any mining claims from the recording requirement. Thus, BLM's consistent interpretation of section 314 was permissible, and failure to record a claim will lead to a conclusive presumption that the claim is abandoned and is void.

The court concluded that Webb failed to file a document that sufficiently identified the type of claim he was asserting, instead only filing documents that cited the statutory provisions for lode and placer claims. He also paid filing fees that only covered his lode claims. BLM's decision therefore was supported by substantial evidence, and entitled to be upheld.

2. United States v. Bagwell, 961 F.2d 1450 (9th Cir. 1992)

Bagwell appealed a district court order evicting him from public land and invalidating his mining claim. The court found that Bagwell's mining claim was in bad faith, and therefore he forfeited his right to remain on public land. The Ninth Circuit affirmed.

The Bagwells lived at a mill site in the Angeles National Forest since 1972, occupying the land pursuant to a mill site claim under the General Mining Law of 1872. Under that statute the public may possess public lands for mining purposes; however, the miners may not use the land for purposes other than mining development, and possession is subject to a good faith requirement.

Because of concern about Bagwell's true use of the land, in 1984 the Forest Service drafted an operating plan for mining and milling operations. The plan was revoked a year later when Bagwell refused to remove livestock from the site and did not undertake mining or milling activities. In 1987 the Forest Service ordered Bagwell to vacate the mill site and, filed a trespass action in 1989 after Bagwell refused. At trial the Forest Service demonstrated through ore samples that the mine could not be run at a profit and that Bagwell primarily used the site as a private residence and for livestock purposes. In 1990 the district court held the Bagwells occupied the property in bad faith and that the milling operation was disingenuous front for Bagwell's intent in using public property as a private residence. The court ordered Bagwell to vacate the site, restore the land and pay rent since his eviction notice in 1987.

Bagwell raised three defenses which were rejected by the Ninth Circuit. The court disagreed with Bagwell that federal courts lack jurisdiction because the Department of the Interior has primary jurisdiction to determine validity of mining claims. The Ninth Circuit agreed that Interior must first rule on a disputed claim before invalidating it when a claimant has not taken possession of the land. However, the court said that possession of public lands in bad faith is a different issue from contesting a mining claim, and that federal courts may protect the public by bringing eviction actions before adjudicating the validity of the claim in administrative hearings.

The Ninth Circuit further stated that to determine good faith as the Mining Act requires, the court must determine if the mill site is being used for nonmining purposes and determine whether a reasonably prudent person would be justified to expend money and labor to develop the mill site. Clear and convincing evidence showing a lack of either of these factors is sufficient for eviction and invalidating the claim. The court agreed with the lower court that Bagwell failed both tests; the livestock and Bagwell's insignificant production of ore were evidence that the site was not used for mining. Also, the ore quantity and quality was low and operating costs were high such that a reasonably prudent miner would discontinue development of such an area.

Finally, Bagwell contended eviction and invalidation of his claim amounted to an unconstitutional taking under Fifth Amendment to the U.S. Constitution. The Ninth Circuit said that while mining claims are property protected by the Fifth Amendment, the Fifth Amendment does not require compensation for divestment of an invalid mining claim. Because Bagwell's claims were invalid due to his bad faith, he was not entitled to compensation under the Fifth Amendment.

F. National Forests

1. City of Tenakee Springs v. Franzel, 960 F.2d 776 (9th Cir. 1992)

Plaintiffs, the city of Tenakee Springs and subsistence users, challenged the sufficiency of a 1989 Supplemental Environmental Impact Statement (SEIS) prepared by the Forest Service in selling large tracts for timber harvesting in the Tongass National Forest. In an earlier case, City of Tenakee Springs v. Clough,(14) the court of appeals overturned the district court's denial of a preliminary injunction challenging the adequacy of the SEIS and granted injunctive relief pending the district court's review of the appellate court findings. There, the appellate court found that 1) serious questions about the adequacy of the SEIS had been raised; 2) where several actions have cumulative or synergistic effects, that consequence must be considered in an EIS; 3) where there are large-scale plans for regional development, NEPA requires both programmatic and site-specific EIS; 4) both NEPA and ANILCA require the Forest Service to consider reasonable alternatives to the proposed action, including the heretofore ignored possibility of terminating, suspending or amending two 50-year contracts. Upon remand of the earlier case, the district court again denied the plaintiffs motion for summary judgment, granted the Forest Service's motion for summary judgment and vacated the preliminary injunction. Plaintiffs appealed this decision.

In City of Tenakee Springs v. Franzel, the Ninth Circuit affirmed the district court decision based upon intervening legislation rather than on the merits. Congress passed the Tongass Timber Reform Act (TTRA) after the Clough decision and before the current appeal. The court found that the TTRA addressed many of the inadequacies that troubled the court in Clough. It found that the TTRA: 1) reduced the volume to be harvested; 2) expanded wilderness areas; 3) ordered the government to undertake a study to look at how contract requirements affect the environment to determine if they should be modified to adhere to stiffer environmental protections; and 4) improved the methodology for ensuring future compliance with environmental laws.

Thus, even if the 1989 SEIS was inadequate, the court found that the equities flowing from "perceived procedural deficiencies" did not warrant permanent injunctive relief. The Ninth Circuit felt that there was no utility in having the Forest Service consider in a new SEIS the same issues that Congress considered when it passed the TTRA. With the enactment of the TTRA, the court found there was no longer the threat of irreparable harm based on timber harvesting under a deficient SEIS.

Judge Norris dissented, noting that the tracts of land at issue were unaffected by the passage of the TTRA. The TTRA demonstrated Congress' intent to provide additional protection to the Tongass National Forest and it did not retroactively validate the 1989 SEIS or exempt it from complying with NEPA or ANILCA. These lands would now be open to large-scale timber harvesting. Judge Norris believed the equities thus tipped more heavily toward the plaintiffs and the case should have been heard on its merits.

2. Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992)

Plaintiffs (ICL) challenged a Forest Service decision to recommend that four of forty-seven roadless areas in the Idaho Panhandle National Forest not be designated as wilderness. The lower court ruled that ICL lacked standing to sue, and that the alternatives considered by the EIS were adequate to meet NEPA standards. The Ninth Circuit overturned the lower court's decision on the issue of standing, but upheld the lower court's findings on the merits.

ICL challenged the issuance of a land and resource management plan (LRMP) for the Panhandle. NEPA requires that an LRMP be accompanied by an EIS for the plan, with implementation of the plan occurring only after site-specific projects are proposed and assessed through a site-specific EIS. ICL asserted that the LRMP EIS was insufficient because it did not address the possibility of increasing timber harvests through intensive management of already developed areas, and because it did not disclose the real value of timber from roadless areas. Because the threat of actual harm posed by the increased timber cutting first required third party or Congressional action and was thus once-removed from the instant action, the Forest Service maintained that the injury was too speculative to confer standing.

The Ninth Circuit held that a NEPA violation is sufficient injury in fact to establish standing, and that standing is not defeated by the fact that third parties would have to act before physical harm of development of the areas could occur. Additionally, the Ninth Circuit found that individual ICL members sufficiently named specific areas that they use, thus satisfying the "personal stake" prong of the standing test. The court also found that the injury was fairly traceable to the agency's action and redressable by the remedy sought, as the alleged statutory violation would not have occurred but for the Secretary's decision.

However, the court upheld the defendant's case on the merits, rejecting ICL's claims that: 1) the EIS failed to reveal or consider the alternative of logging the preferred amount of timber from already developed lands; 2) the EIS did not thoroughly address the alternative of designating all roadless areas as wilderness; and 3) the Forest Service failed to reveal the value of the timber it proposed to harvest. The court held that ICL's proposed alternative was adequately considered, "albeit not in the form of a full-blown alternative detailed in the EIS." It noted that the Forest Service rejected the alternative of intensified timber production on already developed areas because a computer model indicated that alternative would have caused unacceptable damage to those areas. The Service's evaluation was found adequate, and although the ICL might disagree with the results and the computer model used to develop alternatives, the Service met its NEPA procedural requirements.

The court also agreed with the district court that the Service was not required to undertake a site-specific economic analysis of timber value. It held that NEPA does not require a particularized assessment of such non-environmental impacts, particularly in a programmatic EIS.

3. Oregon Natural Resources Council v. Grossarth, 979 F.2d 1377 (9th Cir. 1992)

Environmental Groups (ONRC) challenged the Forest Service's timber sale in Oregon's Fremont National Forest on four grounds: 1) NEPA was violated because an EIS analyzing the effects of logging on the proposed area was not prepared; 2) Forest Service Regulations were violated in establishing a Research Natural Area (RNA); 3) The National Forest Management Act (NFMA) was violated because logging would cause deterioration of thirty percent of the watershed; and 4) Oregon water quality standards would be violated. While the case was pending in district court, the Regional Forester halted the sale and directed an EIS as a result of ONRC's earlier administrative appeal. The district court dismissed the action, agreeing with the Forest Service that this action mooted the suit. Future sales would thus be based on a different administrative record.

On appeal, ONRC contended that the claims were not moot because the Forest Service would continue sales after the lawsuit terminated. The Ninth Circuit disagreed, stating that the EIS would account for the "no action" alternative and would also address the merits of ONRC's claims raised in the litigation.

Secondly, ONRC claimed that "voluntary cessation" moots an issue unless defendants can show "no reasonable expectation" of recurrence of the alleged violation. The Ninth Circuit said ONRC's "voluntary cessation" theory was misplaced because the Forest Service had halted the sale only because of ONRC's successful administrative appeal, not because of any voluntary cessation within the meaning of the doctrine. While the Forest Service announced it would have another sale after preparing the EIS, the court said the preannouncement itself did not amount to a controversy over the effect and nature of that unspecified sale, and therefore the issue was not ripe for adjudication.

ONRC filed an administrative appeal concerning the second sale, contending that the second sale did not substantively differ from the first sale. The Forest Service then halted the second sale while the administrative appeal was pending. ONRC requested it be able to supplement the record before the Ninth Circuit on matters concerning the second sale, however the court found that ONRC would present issues that were difficult for an appellate court to evaluate in the first instance. This evaluation instead should be before the district court in separate litigation with an independent record.

The motion to supplement thus was denied and the judgment of the district court dismissing the action based on the record before it at the time of judgment was affirmed.

4. Yerger v. Robertson, 981 F.2d 460 (9th Cir. 1992)

The Ninth Circuit affirmed the district court's grant of summary judgment to the Forest Service in a suit challenging the Service's denial of a permit renewal. The permit allowed Yerger to run a recreational facility and food concession in the Prescott National Forest in Arizona.

Yerger had a special use permit from the Forest Service for the operation of Horsethief Basin Resort in Prescott National Forest. The resort was built in the 1930s by the Forest Service and the City of Phoenix. The Forest Service assumed full control in 1966, and issued special use permits. Yerger's permit conditions included his agreement to restore the site upon termination of the permit, and maintenance of financial records of the resort's rental and retail business. When the permit expired, the Forest Service conducted a Future Use Determination Study and found that public demand for the resort was low and revoked the permit. The study relied heavily upon anecdotal information concerning the financial status of the resort, because Yerger failed to provide financial records upon the Forest Service's requests.

Yerger appealed to the Regional Forester, who directed a more thorough economic analysis of the need for the resort, and questioned whether the resort's structures fell within the scope of the National Historic Preservation Act (NHPA). The second study reiterated the low public demand. Additionally, it confirmed that the agency had initiated NHPA proceedings. On appeal, the Chief Forester upheld the Regional Forest and Forest Supervisor's decision to decline permit renewal, granting Yerger one year to remove the structures and restore the site. However, he also provided that "compliance with the [NHPA] is in progress, and completion of this process will be required before the structures may be impacted in any way." Yerger then filed a district court suit based on three issues.

First, Yerger contended the Forest Service's decision was arbitrary and capricious because it was based on inaccurate and conclusory findings. The Ninth Circuit disagreed. Forest Service guidelines mandate that permits be issued only to proposed users that fulfill a public need, and that do not serve a function that can be provided on private lands. The finding of the Forest Service that the facility collected low revenues, especially as compared to nearby private cool mountain retreats, was not arbitrary or capricious. While the data was largely anecdotal and unspecific, as Yerger contended, Yerger was to blame because he failed to comply with his permit in releasing his financial data to the Forest Service. The court rejected all additional complaints concerning this issue, finding that the Forest Service's conclusion was supported by satisfactory explanations, and considered all relevant facts.

Second, Yerger argued that his permit could not be revoked while the NHPA consultation process was pending. The court rejected this claim, finding that the Forest Service was simply reassuming control over the resort, and that such action would not affect the site's historic character. Additionally, as the Forest Service order provided that no buildings should be removed until the consultation process was complete, it did not violate the NHPA.

Finally, Yerger raised an equitable estoppel claim based on the fact that employees had allegedly assured him upon issuance of his permit that it would be renewed. However, Yerger had the heavy burden of proving that the Forest Service's affirmative acts were beyond mere negligence, a burden Yerger failed to carry.

G. Hydropower

1. State of California v. FERC, 966 F.2d 1541 (9th Cir. 1992)

State and federal resource agencies challenged the Federal Energy Regulatory Commission's (FERC) issuance of a minor hydroelectric license on Green Creek at Dynamo Pond in California. FERC had issued the license despite three objections. First, California Fish and Game (Cal Fish) contended that FERC's instream flow conditions for the project would not support the fishery resource of the creek, and therefore violated the consultation provisions of section 10(j) of the Federal Power Act (FPA). The project sponsor, however, challenged FERC's reopening of the [section] 10(j) negotiations with Cal Fish. Second, the California Water Resources Board (Cal Water) challenged FERC's holding that Cal Water had waived its Clean Water Act (CWA) water quality certification authority. Finally, the project sponsor appealed FERC's holding that the Bureau of Land Management (BLM) had authority under the Federal Land and Policy Management Act (FLPMA) to require rights-of-way from hydroelectric projects on BLM lands.

The Ninth Circuit affirmed FERC's instream flow conditions, finding them to be based upon substantial evidence. The court also deferred to FERC's interpretation regarding its procedure under section 10(j) of the FPA and regarding the CWA water quality certification waiver provision. However, the Ninth Circuit reversed FERC's holding that the BLM had right-of-way authority pursuant to FLPMA over hydroelectric projects on BLM lands. The court reasoned that such authority was inconsistent with the FPA's policy of centralizing authority over hydro-electric licensing in FERC.

While the case being heard before the Ninth Circuit, Congress enacted the 1992 Energy Policy Act. The 1992 Act amended FLPMA and clarified the BLM's authority to require rights-of-way from hydro-electric projects on BLM lands. However, Congress did not disturb the legal result of the Ninth Circuit's decision in California v. FERC (Dynamo Pond),(15) because it attached a grandfather clause to the FLPMA amendments, relieving licensed projects, like the one at issue in the case, and projects undergoing relicensing, from the right-of-way requirement.

H. Wetlands

1. Epperley v. United States,(16) No. 91-35862, 1992 U.S. App. LEXIS 32286 (9th Cir. Nov. 24, 1992)

Plaintiffs claimed that unidentified federal employees violated their Fifth Amendment rights, protecting the taking of property without compensation, by classifying their land in Alaska as "wetlands." The district court found the claim premature, as the plaintiffs had not been restricted in the use of their property, and dismissed the claim pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs conceded that their Fifth Amendment claim was not ripe, but contended that the court should decide whether the Clean Water Act applied to their property.

The Ninth Circuit affirmed the District Court's finding that the plaintiffs' claim was premature, because (1) the federal government had not taken any action against the plaintiffs, and (2) plaintiffs had not demonstrated any hardship resulting from the district court's refusal to exercise its jurisdiction. The Ninth Circuit accordingly affirmed the dismissal of plaintiffs' case.

2. Miles v. Yeutter,(17) Nos. 90-35600, 91-36208, 1992 U.S. App. LEXIS 3998 (9th Cir. Feb. 28, 1992), cert. denied, 113 S.Ct. 77 (1992)

Plaintiffs entered a Farmers Home Administration (FmHA) leaseback/buy-back loan after defaulting on a prior FmHA loan for their 1046 acre cattle ranch in Baker County, Oregon. The next year the FmHA staked out a wetlands conservation easement on 609 acres of the ranch after the U.S. Fish and Wildlife Service identified a wetlands complex on the ranch. The plaintiffs attempted to exercise their option to purchase the ranch prior to the imposition of the easement, but the FmHA conditioned the purchase upon the imposition of the easement. The plaintiffs rejected the FmHA's offer and filed suit when the easements took effect, attempting to force the FmHA to convey them the property free and clear from the wetlands easement. The district court found for the United States on all claims, dismissing twelve of the plaintiff's sixteen claims outright. The court dismissed the remaining four claims after finding that the property contained "substantial areas of natural wetlands," and that the FmHA had not acted arbitrarily or capriciously in establishing the easement area.

The Ninth Circuit affirmed, holding: (1) Plaintiffs' contract claims were properly dismissed for lack of subject matter jurisdiction, because the government had not waived sovereign immunity. (2) A purchaser of land, not knowing of a use restriction upon it, cannot purchase the land free of the easement, and is limited to either an action for damages or for rescission, because FmHA lacks authority to sell the property in question without requiring an easement for protection of designated wetlands. The court therefore did not need to decide the scope of the FmHA's duty to provide notice of the impending easement to the plaintiffs. (3) Executive Order 11990 and the Food Security Act of 1985 clearly encompass natural wetlands, such as those involved in the instant case; artificially created wetlands are also protected because they fall under the definition of "wetlands" in the Clean Water Act. (4) FmHA's designation of the wetlands was not arbitrary and capricious as it received technical assistance from other agencies, made independent assessments, and attempted to accommodate plaintiffs' concerns.

IV. Litigation Issues

A. Attorney Fees

1. Rock Creek Limited Partnership v. State Water Resources Control Board, 972 F.2d 274 (9th Cir. 1992)

In prevailing in a [section] 1983 case, which ultimately declared that FERC's authority to set flow conditions for hydroelectric projects preempted the authority of California's State Water Resources Control Board, Rock Creek sought an award of attorney fees for its efforts at both the administrative and federal court levels. The Ninth Circuit applied a two part test and determined that petitioner's claim for attorneys' fees failed at the administrative level. However, the court remanded to the district court regarding fees incurred as a result of the [section] 1983 action in federal court.

The court's two part test examines first, what the petitioner sought in the lawsuit and whether the lawsuit was causally linked to the relief obtained, and second, whether there was an adequate legal basis for petitioner's claim.

The court found that the administrative action was not causally related to the federal declaratory order because the administrative action was independent of the federal action. Petitioner could have asserted its [section] 1983 claim in district court, but made a "tactical" choice to first pursue administrative relief. Thus, the administrative proceedings bore no relation to the resolution of the federal action.

The court remanded the question of federal court attorneys' fees to the district court, finding that the lower court had failed to fully analyze the federal [section] 1983 action. Because aspects of the relief sought by petitioner, including a temporary restraining order and preliminary injunction, were unavailable through the administrative action, the court found that petitioner could have succeeded on a significant claim and thus have been entitled to attorneys' fees.

2. Oregon Natural Resources Council v. Madigan, 980 F.2d 1330 (9th Cir. 1992)

Environmental groups sued the Secretary of Agriculture for allegedly violating the Hells Canyon Natural Recreation Area (HCNRA) Act. The District Court for the District of Oregon held for the defendant. Upon appeal, the Ninth Circuit held that the HCNRA Act required the Secretary to issue regulations for timber cutting. The Ninth Circuit remanded the determination of attorney fees to the district court. The district court found that the government was "substantially justified" in its interpretation of the HNCRA Act and therefore denied plaintiffs attorney fees under the Equal Access to Justice Act.

The Ninth Circuit reversed, holding that plaintiffs were entitled to attorney fees and expenses. The Ninth Circuit found that the government was not substantially justified in its interpretation of the HCRA Act because: 1) the Ninth Circuit had previously decided that the statutory language at issue was clear and contrary to the government's position 2) the government failed to introduce any extraneous circumstances demonstrating that its litigation position was justified, and 3) the district judge's agreement with the government is not conclusive on the issue of the government's reasonableness.

3. Oregon Natural Resources Council v. Marsh,(18) No. 35878, 1992 U.S. App. LEXIS 6497 (9th Cir. April 7, 1992)

Plaintiffs sued the Army Corps of Engineers, alleging NEPA violations arising from dam construction in the Rogue River Basin. The District Court for the District of Oregon found for the defendants. The Ninth Circuit affirmed in part and reversed and part, and the U.S. Supreme Court reversed in part. Upon remand to the district court, plaintiffs requested attorney fees under the Equal Access to Justice Act. The district court declined to award the fees, finding that "the government's position was substantially justified in law and fact."

The Ninth Circuit was unable to review the propriety of the decision because the district court had failed to include its reasons for denying plaintiffs attorneys' fees, so the court vacated the district court's judgment and remanded to the district court for "entry of specific findings on the question of substantial justification."

4. M.L. Investment Company v. Secretary of the Interior,(19) No. 90-35561, 1992 U.S. App. LEXIS 6596 (9th Cir. April 1, 1992)

Plaintiff challenged the Bureau of Land Management's issuance of a Final Decision restricting the plaintiff's usage of range resources. The District Court for the District of Idaho provided plaintiff partial relief by striking the "full force and effect clause" in the Final Decision. The court also granted plaintiff attorney costs under the Equal Access to Justice Act, but denied attorney fees because it found that the government was "substantially justified" in its actions. Upon appeal, the Ninth Circuit remanded to the district court, with instructions to specify the reasons for the denial of the fees. After the district court supplied its reasons, plaintiff continued its appeal, arguing that the district court erroneously found that the government was substantially justified in position with respect to the "full force and effect clause."

The Ninth Circuit affirmed, ruling that the district court did not abuse its discretion in denying plaintiff attorneys' fees. The court held: (1) The government's interpretation of 43 C.F.R. [section] 4160.3(c), which allows the government to include a full force and effect clause "in an emergency to stop resource deterioration," was reasonable, as the "plain language does not require an ... explicit and detailed statement using the word emergency," and given the absence of precedent interpreting 43 C.F.R. [section] 4160.3(c); (2) The government's anticipation of plaintiff's appeal did not indicate the government's lack of substantial justification for its position; (3) The government's litigation position was substantially justified because "[c]ase law provided no guidance on how to interpret the requirements of [section] 4160.3(c), and the BLM's interpretation of the regulation was reasonable."

B. Standing

1. Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992)

See supra 1074-76.

2. Alaska v. Lujan,(20) Nos. 91-36297, 91-36299, 91-36303, 1992 U.S. App. LEXIS 33377 (9th Cir. Dec. 7, 1992)

Alaska appealed the district court's summary judgment order denying a challenge to regulations promulgated by the National Park Service (NPS) concerning "trespass cabins" on lands governed by the Alaska National Interest Lands Conservation Act (ANILCA). Conservation groups intervened as plaintiffs. The Ninth Circuit held that neither the state nor conservation groups had standing to sue and remanded for dismissal.

The district court had agreed with Alaska's reliance upon the doctrine of parens patriae to sue NPS in district court. The doctrine can grant a state standing to sue where the state has "demonstrated injury to a |quasi-sovereign' interest, apart from the interests of particular private parties." However, the Ninth Circuit found the holding to be in error because of the Supreme Court determination that states cannot have standing as parens patriae to bring suit against the federal government.

Alaska also argued, for the first time on appeal, that the Administrative Procedure Act and ANILCA give Alaska an explicit and implicit grant of standing. However, the Ninth Circuit held that without first satisfying constitutional requirements for standing, statutes cannot confer standing as of right. While ordinarily intervenors do not need to establish standing independent of the primary party, they will need to comply with Article III requirements where the primary party is found to lack standing. Thus, although the conservation groups asserted standing, they produced no evidence to support that assumption. Therefore, the court held that neither the state nor conservation groups established standing and it remanded the case to the district court for dismissal. (1.) Bob Pepperman Taylor, Our Limits Transgressed; Environmental Political Thought in America xii (1992). (2.) Bob Pepperman Taylor, Environmental Ethics & Political Theory, 23 Polity 567, 581 (1991). (3.) Taylor, supra note 1, at 150. (4.) Id. at xiii. (5.) Id. at 3-4. (6.) Id. at 24. (7.) Id. at 26. (8.) Id. at 4 (quoting Henry David Thoreau, The Portable Thoreau 609 (Carl Bode ed., 1977)). (9.) Taylor, supra note 1, at 24. (10.) Id. at 23. (11.) Id. at 19. (12.) Id. at 27, 51. (13.) Id. at 49. (14.) See Aldo Leopold, A Sand County Almanac (1949). (15.) Many writers view Aldo Leopold as following what Taylor calls the "pastoral tradition." See James P. Karp, Aldo Leopold's Land Ethic: Is an Ecological Conscience Evolving in Land Development Law? 19 Envtl. L. 737, 739 (1989). (16.) Taylor, supra note 1, at 57. (17.) Id. at 56. (18.) Id. at 78. (19.) Taylor, supra note 1, at 136. (20.) Id. at 143. (21.) Id. at 137. (22.) Id. (23.) Id. at 92. (24.) Id. at 93. (25.) Taylor, supra note 1, at 100. (26.) Id. at 131. (27.) Id. at 130. (28.) Id. at 130. (29.) Id. at 136. (30.) Id. at 148. (31.) See Taylor, supra note 1, at 148-149. (32.) Id. at 150. (33.) Id. at xii-xiii. (34.) Id. at 151. (35.) 155 Sci. 1203 (1967). (36.) "Our ecologic crisis is the product of an emerging, entirely novel, democratic culture. The issue is whether a democratized world can survive its own implications." Id. at 1204. (1.) This case was handled by Memorandum of Disposition. This opinion is not published, is not to be regarded as precedent, and may not be cited by or to the courts of the Ninth Circuit except for purposes of the law of the case, res judicata, or collateral estoppel, as provided by 9th Cir. R. 36-3. We note this case here so that our readers may gain a more complete view of the Ninth Circuit's environmental opinions. (2.) 965 F.2d 759 (9th Cir. 1992). (3.) 872 F.2d 1373 (8th Cir. 1989). (4.) 880 F.2d 1033 (9th Cir. 1989). (5.) 690 F.2d 753 (9th Cir. 1982). (6.) The standard for reviewing an agency decision not to prepare an EIS was changed from reasonableness to arbitrary and capricious by the decision in Greenpeace Action v. Franklin, 982 F.2d 1342 (9th Cir. 1992). See Craig Whetstone, Note, Greenpeace Action v. Franklin: Extending Marsh's "Arbitrary and Capricious" Review to an Initial EIS Decision, infra at 1185-98. (7.) This case was handled by Memorandum of Disposition. See supra note 1. (8.) This case was handled by Memorandum of Disposition. See supra note 1. (9.) 498 U.S. 505 (1991). (10.) This case was handled by Memorandum of Disposition. See supra note 1. (11.) This case was handled by Memorandum of Disposition. See supra note 1. (12.) United States v. Stenberg, 803 F.2d 422 (9th Cir. 1986). (13.) This case was handled by Memorandum of Disposition. See supra note 1. (14.) 915 F.2d 1308 (9th Cir. 1990). (15.) 495 U.S. 490 (1990). (16.) This case was handled by Memorandum of Disposition. See supra note 1. (17.) Id. (18.) This case was handled by Memorandum of Disposition. See supra note 1. (19.) Id. (20.) This case was handled by Memorandum of Disposition. See supra note 1.
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Author:Jones, D.R.
Publication:Environmental Law
Article Type:Book Review
Date:Jul 1, 1993
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