Case summaries.
I. ENVIRONMENTAL QUALITY
A. Hazardous Waste
1. A & W Smelter & Refiners, Inc. v. Clinton, 1246 F.3d 1107 (9th Cir. 1998).
A & W Smelter (A & W) possessed an ore pile at its processing facility in the Mojave Desert. The ore included small amounts of silver and gold,
A & W eventually complied with both orders and filed a complaint seeking reimbursement of its compliance costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(1) EPA moved for summary judgment, which the district court granted. A & W then appealed.
According to CERCLA, "when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility," he may issue disposal orders.(2) Those who pay for cleanup but believe they should not have done so may petition for reimbursement of reasonably incurred costs.(3) If EPA refuses, violators may sue in district court.(4) Additionally, violators may be reimbursed if the order was arbitrary and capricious,(5) even if the violator was otherwise liable. A & W claimed reimbursement on both grounds.
EPA argued that A & W was responsible for cleanup costs under section 9607(a) of CERCLA, which holds liable "any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance."(6) EPA labeled the ore pile hazardous because it contained lead. CERCLA defines "hazardous substance" pursuant to several other statutes or to EPA regulations promulgated under the Act.(7) EPA pointed to regulations promulgated under CERCLA(8) and to Clean Water Act regulations listing lead as a hazardous substance(9) to support the contention that A & W violated CERCLA. A & W countered by requesting that the court read a minimum hazard level requirement into the statutes and regulations.
First, the Ninth Circuit noted that neither section 9601(14) of CERCLA nor EPA regulations establish minimum levels for classifying substances as "hazardous." Moreover, the Second, Third, and Fifth Circuits all agree that CERCLA's definition of hazardous substance has no minimum level requirement. Consequently, the Ninth Circuit declined to read a limitation into the statute, reasoning that such a reading would intrude into Congress's province.
Second, the Ninth Circuit addressed whether the shipment sent to the disposal facility constituted a release. "Release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)."(10) Although the ore stayed within the drum, the government claimed that there was an abandonment because A & W did not move the shipment within EPA's three-day time limit. While case law does not define "abandonment" under CERCLA, according to common law, property is "abandoned" when the owner intends to relinquish all interest in it. A & W claimed it intended to retrieve the ore but did not have the means to do so within the time limit. EPA did not present evidence of any regulation or well-established agency practice defining abandonment.
The court stated that although ad hoc agency action is entitled to deference, the degree of deference depends on how much deliberation went into reaching the decision and whether it fits within a policy the agency has consistently followed. Here, there was no indication that the agency considered objections to its conclusion that the ore was abandoned. Additionally, since there was no suggestion that there was another meaning of the term other than that intended by Congress, the court held that there was no reason to defer to EPA's interpretation of the statute.
Third, the court discussed whether A & W was liable under CERCLA. A & W would be liable only if it arranged for "disposal or treatment" of hazardous substances.(11) Disposal is "the discharge of any solid waste or hazardous waste."(12) Treatment is "a method, technique, or process ... designed to change the ... character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume."(13) The court explained that A & W disposed or treated the ore only if it was waste, but that the ore was not waste and not subject to CERCLA if it was a useful product. In this case, the ore had not been processed, because smelting unprocessed ore was A & W's business. Therefore, the ore was one of the producer's principal business products. However, slag, a by-product of smelting, was also mixed with the ore. If the ore had been mixed with enough slag so that it was no longer usable for A & W, it would be considered waste. The court held that examining A & W's actions and commercial practices would determine whether the ore mixture was a waste. Consequently, the court remanded this issue to the district court.
Finally, the Ninth Circuit discussed whether EPA's order was arbitrary and capricious. It noted that EPA may issue an order if the agency determines there is "an imminent and substantial endangerraent to the public health or welfare or the environment."(14) A & W claimed that the guidelines issued by EPA defining its use of this power were void for vagueness. Therefore, it claimed that EPA's actions were arbitrary and capricious and that A & W should be reimbursed. The Ninth Circuit rejected this argument, noting that only a "minimal rationality" is needed to withstand arbitrary and capricious review. Because the meaning of "imminent and substantial" was not absolutely clear, the court defined "substantial" here as a release that does more than present a minimal threat to health, welfare, or the environment. The court then noted that A & W did not argue that its release was not a substantial endangerment to health or the environment. Due to the obscurity on this issue, the court stated that this question could be raised on remand to the district court.
2. Atchison, Topeka & Santa Fe Railway Co. v. Brown & Bryant, Inc., 159 F.3d 3,58 (9th Cir. 1998).
In this case, the Ninth Circuit revised a 1997 opinion(15) in which the court refused to assign successor-in-interest liability to the purchaser of interests of a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(16) The revised opinion substantially repeats the analysis and holding of the prior opinion, but does not hold that state law determines the scope of successor liability.
Plaintiff railroad companies, Atchison, Topeka & Santa Fe Railway Company and Southern Pacific Transportation Company (Railroads), brought this contribution action under CERCLA to recover cleanup costs for soil contamination on property leased to defendant Brown & Bryant (B & B). Railroads sought contribution from defendant PureGro, which had purchased many of B & B's assets once B & B realized it could not afford to comply with cleanup orders issued by the Environmental Protection Agency (EPA) pursuant to CERCLA. The Ninth Circuit held that PureGro was not liable for contribution because it was not the successor-in-interest. First, the Ninth Circuit declined to apply CERCLA's "mere continuation" exception to the general rule that asset purchasers are not liable as successors-in-interest.(17) Second, the court found that PureGro's purchase of B & B's assets did not qualify for the "fraudulently entered transaction" exception to the same rule.(18)
Aside from minor grammatical and citation amendments, the court altered its analysis in the revised opinion only in its discussion of the expanded "substantial continuation" exception.(19) The court in the prior opinion determined, on the basis of a series of United States Supreme Court cases, that state law dictates the parameters of successor liability. The court declined to assign liability because the governing law of California includes no substantial continuation exception.(20)
In the revised opinion, the court noted that its decision not to extend the mere continuation exception to include the notion of a substantial continuation rendered the same result under either state or federal law. The court did not need to determine whether state law governed the scope of successor liability, because in this case both state and federal law reached the same result. The court also deleted a paragraph from the earlier opinion that rejected an argument for expanding the "mere continuation" rule on the basis that such expansion would increase the funds available to finance CERCLA cleanup operations.
3. United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998).
Harold B. Chapman, Jr. manufactured small metal collars and stored and sold military and commercial surplus chemicals on his land in Washoe County, Nevada. The United States Environmental Protection Agency (EPA) began an investigation of his facility in 1989 at the request of the county. EPA conducted a preliminary assessment of the site to determine if a removal action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(21) was necessary. The site contained approximately two thousand five-gallon containers of paint, insulating oil, sulfuric acid, chloroform, alcohols, and other military surplus chemicals, plus more than one hundred fifty-five-gallon drums of unknown substances. Most of the drums were stored outside in an unprotected storage yard, and many of the drums were leaking into the soil, which was stained in several areas.
After the preliminary assessment, Washoe County issued orders directing Chapman to bring his property into compliance. In April 1990, the county issued a misdemeanor citation to Chapman for failure to comply with county orders, and in May 1990, the County Commissioner revoked Chapman's business license. The county then called on EPA for assistance.
On May 24, 1990 EPA issued Order 90-10. In this order, EPA stated that the site posed an "imminent and substantial endangerment to the public health or welfare or the environment because of the release or threatened release of hazardous substances."(22) The agency claimed that the site posed a substantial risk of fire and/or explosion, that many of the drums were leaking into the soil and could migrate into groundwater, that groundwater contamination could result in contamination of the domestic and agricultural aquifer (endangering residents and crops), and that the site was a danger to the Bureau of Land Management's Wild Horse and Burro Adoption Center located nearby. The order required Chapman to take immediate action to secure the site, to submit a detailed site removal and stabilization plan, and to contain or prevent the release of hazardous substances. It also required him to remove hazardous substances from the site.
EPA deemed subsequent compliance documentation prepared by Chapman inadequate and incomplete, and on January 8, 1991, EPA conducted another inspection and found containers of paint waste and flammable liquids remaining on the property. Some of the containers were open and leaking, and soil stains remained where other drums had been stored outside. Because Chapman had not complied with EPA's order, the agency initiated a response action. Chapman began to comply with the order one month later by removing the containers from the site and submitting soil samples to EPA.
In April 1992, EPA requested $33,946.00 from Chapman for response costs it had incurred. Chapman refused to pay and the United States brought this action against Chapman to collect. The district court granted summary judgment in favor of the government and Chapman appealed.
To establish a prima facie case to recover response costs, the government must prove that 1) the site is a "facility," 2) a "release" or "threatened release" of a hazardous substance has occurred, 3) the government incurred costs in responding to the release or threatened release, and 4) the defendant is a liable party.(23) Once these elements are established, the burden shifts to the defendant to prove that the government's response action was inconsistent with the National Contingency Plan (NCP), which guides federal and state response actions.(24) Consistency with this plan is presumed, and the burden is on the defendant to prove that EPA's response action was arbitrary and capricious.(25) Chapman first claimed that the EPA's response action was arbitrary and capricious because it ordered removal of material without determining whether the material was hazardous. However, because 1) EPA inventoried and sampled the containers at the site and identified hundreds of drums and containers of chemicals and oils, 2) the drums were stored outside in an unprotected storage yard, 3) soil samples showed the substances were hazardous, and 4) the drums had deteriorated, the court held that EPA did not act arbitrarily or capriciously in ordering removal of the material.
CERCLA allows for the recovery of "all costs" of a removal or remedial action, including attorney fees attributable to cost-recovery litigation.(26) The court held that because Chapman initially did not comply with EPA's order, the agency had to begin recovery operations and litigation. Therefore, the court noted that EPA could recover legal costs associated with the removal action. EPA claimed attorney fees of over $400,000 and removal costs of $34,000. The Ninth Circuit remanded the case to the district court to consider the reasonableness of the government's requested litigation expenses. The court stated that the district court should "provide a concise but clear explanation of its reasons for the fee award."(27)
Second, Chapman claimed that there was a genuine issue of material fact as to whether he caused a release or threatened release of a hazardous substance on his property, and that the government failed to establish a prima facie case sufficient for the district court to grant summary judgment. The Ninth Circuit disagreed, citing the evidence in the administrative record as satisfying the government's burden of proof. The record showed that there were visible soil stains and contamination and that some of the two thousand drums stored on the property were rusted and corroded, without tops, and in poor condition. Additionally, the record showed that hazardous substances were found on the premises.
In his defense, Chapman stated that he did not directly manage the facility. The appellant claimed that his environmental consultant assured him that all the containers on the property were properly packaged with no leakage. The Ninth Circuit rejected this claim, noting that the assertions were hearsay and inadequate to rebut the evidence in the record presented by EPA. As a result, the government's evidence established a prima facie case under CERCLA.
Third, Chapman argued that because EPA did not maintain appropriate documentation of its response action and costs incurred, he should not have been held responsible for them. The appellate court disagreed, noting that the government gave detailed cost summaries to the district court showing costs incurred by the EPA. EPA staff, attorneys, accountants and supervisors had provided declarations regarding the work they performed and the time spent on the Chapman site, and documentation of costs in the form of timesheets and payroll documents were found in the record. The court held that this evidence showed that EPA had adequately documented its expenditures.
Fourth, Chapman claimed that EPA did not review the preliminary assessment and current site conditions before determining that a removal action was appropriate, thereby violating regulations promulgated under CERCLA.(28) The Ninth Circuit rejected this contention, pointing to the extensive evidence in the preliminary assessment and the record as a whole. It was therefore appropriate for EPA to determine a removal action was in order.
In a related issue, Chapman argued that EPA did not consider the following appropriate factors when it determined a removal action was in order: 1) actual or potential exposure to nearby human population, animals, or the food chain; 2) actual or potential contamination of the water supply; 3) hazardous substances in drums, barrels, or containers that may pose a threat of release; 4) hazardous substances in soils near the surface that may migrate; 5) weather conditions that may cause migration; 6) threat of fire or explosion; 7) the availability of other federal or state response mechanisms; and 8) other factors that may pose threats to public health or welfare.(29) The court explained that Order 90-10 specifically considered all of these elements except the availability of other federal or state response mechanisms factor. Nevertheless, the court held that because EPA worked in conjunction with the county prior to issuing the order and acted consistently with the NCP, EPA had considered all the required factors.
Finally, Chapman alleged that EPA was required to issue a community relations plan according to the 1985 version of the NCP. That version required a formal community relations plan if on-site removal activities are expected to extend beyond forty-five days. The court held that the order to remove all hazardous substances was issued in May 1990, and that the 1990 version of the NCP--requiring a community relations plan if hazardous substances were not removed within 120 days--applied. Because EPA ordered the substances removed within 120 days, and because the 1990 version of the NCP applied, EPA's actions were consistent with the NCP.
4. United States v. Omega Chemical Corp., 156 F.3d 994 (9th Cir. 1998).
In this case, the Ninth Circuit reversed a grant of summary judgment assessing civil penalties for alleged violations of the access and entry provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(30) The court held that because Omega Chemical Corporation (Omega) consistently allowed the Environmental Protection Agency (EPA) to enter its facility and conduct investigative activities during the period for which penalties were assessed, Omega's refusal to sign a formal written consent giving EPA unconditional access to its facility did not constitute a violation of the statute.
Omega operated a spent solvent recycling facility in Whittier, California that became subject to an administrative investigation and response plan under CERCLA in January 1995. In April 1995, EPA requested that Omega sign a written consent form giving potentially responsible parties and EPA unconditional access to the site. EPA subsequently issued a compliance order in May 1995. Omega responded with a letter outlining its intent to comply with those portions of the order within its physical and financial ability but reserving the right to object to those portions of the order "beyond ... the legal authority of [EPA]."(31) The letter specifically reserved the right to object to "un-consented to searches" and noted that Omega's intended compliance with the order did not constitute a grant of consent to access or a waiver of any statutory or constitutional right.(32)
In a series of correspondence between EPA and Omega, EPA indicated that it interpreted Omega's refusal to sign the consent form as a failure to consent to access for the removal action. In June 1995, EPA secured an administrative warrant and began removal activities at the site. EPA then initiated this action, claiming Omega's failure to sign the consent form constituted a violation of CERCLA's access and entry provisions. The district court granted summary judgment.(33)
The Ninth Circuit framed the question presented by this case as whether civil penalties were authorized under CERCLA for "a site owner's failure to provide unconditional written consent to entry, where the facts indicate that the landowner consistently has provided physical access to the site."(34) The court noted that Omega had in fact provided EPA with access to the site during the penalty period, pointing to evidence gathered by the agency itself that sufficiently demonstrated this fact. This evidence included a preliminary assessment of the site, investigation photographs, and daily and weekly site inspections, as well as soil, groundwater and drum samples. The court explained that Omega consistently allowed access to the property for EPA investigations and that there was no countervailing evidence that Omega had physically obstructed or otherwise barred EPA from entering the site.
The court next addressed EPA's claim that failure to provide written unconditional consent constituted a violation of the statute's access and entry provisions.(35) EPA argued that an interpretation of the statute that did not require formal written consent would not provide EPA with the certainty of access necessary to accomplish a CERCLA cleanup: a mere pledge of intent to cooperate would not protect EPA from the possibility that an owner would subsequently withdraw consent at a critical juncture in the cleanup process, thus compromising EPA's ability to safely and effectively remove hazardous substances. The court rejected this argument, holding that neither the statute nor its implementing regulations contain language requiring unconditional written consent. The statute authorizes penalties for failure to comply with the provisions authorizing EPA to access, enter, and inspect the site.(36) The court found the most logical reading of these provisions to be that noncompliance arises from failure to allow access, entry, or inspection, but does not arise from failure to provide written consent. Because Omega had not failed to allow access to the site, the imposition of civil penalties for noncompliance was improper. The court also noted that while EPA's policy directive on entry and access suggested that inspectors seek written consent, in the absence of that consent EPA is authorized to issue an administrative order and secure a warrant. Such procedures adequately provide EPA with the desired certainty of access.
Moreover, the court noted, EPA's insistence that Omega sign a written consent form was "paradoxical" given the language of that form. The consent form stated that permission to enter was "voluntary with knowledge of my right to refuse." The court took the view that consent could not be voluntary if failure to sign was grounds for imposition of a penalty: "Either the form is genuinely voluntary, in which case civil penalties should not attach, or the form is mandatory, which is a requirement that cannot be found anywhere in CERCLA or its implementing regulations."(37)
EPA finally argued that Omega had violated CERCLA's access and entry provisions by qualifying its willingness to cooperate on the condition that information secured by EPA would "not [be] used in the prosecution of any action against [Omega]."(38) While CERCLA itself does not speak to the imposition of conditions, both CERCLA's implementing regulations and EPA's policy directive treat imposition of conditions as a denial of consent. However, the court distinguished the conditions Omega sought to impose as being conditions upon the future use of information obtained during the cleanup process, not as conditions upon entry. As a result, these conditions did not implicate CERCLA's access and entry provisions, and did not provide a basis for imposition of penalties for noncompliance.
B. Solid Waste
1. Resource Investment, Inc. v. United States Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998).
Resources Investments, Inc. (RII) sought to develop a solid waste landfill in Pierce County, Washington. The Army Corps of Engineers (Corps), however, denied RII's request for a dredge and fill permit for the landfill under the Clean Water Act.(39) The District Court for the Western District of Washington affirmed the permit denial. RII appealed, and the Ninth Circuit vacated the decision of the district court, holding that as a matter of law, the Corps lacked the authority to require RII to obtain a dredge and fill permit. Because development of the landfill involved solid waste disposal issues, the Environmental Protection Agency (EPA) was responsible for overseeing any potential development under the Resource Conservation and Recovery Act (RCRA).(40)
RII's proposed landfill would have covered 168 acres of a 320-acre site and would have required the clearing, excavating, filling, and grading of approximately 21.6 acres of wetlands. The landfill complied with the Tacoma-Pierce County Solid Waste Management Plan, which met the statutory requirements of the State of Washington. The State of Washington developed its plan pursuant to the federal mandate of RCRA,(41) "which requires each state to develop a plan for the safe and environmentally-sound disposal of solid waste within its jurisdiction."(42)
After buying much of the land on which it was to develop the landfill, in 1988 RII began applying for the permits it needed in order to commence construction. Pierce County granted a conditional use permit, and RII applied to the Tacoma-Pierce County Health Department for a solid waste handling permit. In order to obtain this permit, RII had to demonstrate successfully that
1) a practicable alternative to the proposed landfill that did not involve wetlands was not available; 2) the construction and operation of the landfill would not cause or contribute to violations of any applicable state water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of endangered or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary; 3) the landfill would not cause or contribute to significant degradation of wetlands; and 4) steps had been taken to achieve no net loss of wetlands by first avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetlands impacts through all appropriate and practicable compensatory mitigation actions.(43)
RII satisfied these criteria, and the health department granted the solid waste handling permit.
In 1990, RII applied to the Corps for a permit under section 404 of the Clean Water Act (CWA) "to discharge dredged or fill material into the navigable waters of the United States."(44) The Corps denied the application, finding that RII "failed to demonstrate the unavailability of practicable alternatives for waste disposal that were less environmentally damaging."(45) Thus, the Corps found that RII had not demonstrated that it had considered every practicable alternative to developing a landfill that would have adverse environmental impacts. The district court affirmed the Corps' denial of the CWA section 404 permit.
RII appealed the district court's decision. It asserted that the Corps did not have the authority to require a dredge and fill permit, because RCRA mandates that either EPA or states with solid waste permit programs have the authority to regulate municipal solid waste disposal. The Ninth Circuit agreed.
The court first determined that the municipal solid waste that would occupy the landfill did "not fall within the definition of either `dredged material' or `fill material."'(46) The solid waste was neither "excavated or dredged from waters of the United States"(47) nor "used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a waterbody"(48) as the regulatory definitions required. In addition, Corps regulations specifically provide that section 402 of the CWA governs the disposal of solid waste. Thus, the nature of the waste itself took the proposed landfill out of the purview of the Corps' permitting authority.
Next, the Ninth Circuit highlighted the unreasonableness of the Corps' interpretation of section 404 of the CWA. Under RCRA, EPA and states with EPA-approved solid waste disposal programs specifically regulate the siting, design, and construction of landfills in wetlands. Therefore, an interpretation that would also give the Corps authority to regulate these activities could lead to duplicative and potentially inconsistent results, but Corps policy discourages this type of "regulatory overlap."(49) In fact, the Corps' own regulations provide that "state and federal regulatory programs should complement rather than duplicate one another."(50)
The court also looked at correspondences between the Corps and EPA over the years to support its conclusion that the Corps should not play a role in the permitting of solid waste landfills. The court cited a 1984 letter from the Assistant Secretary of the Army to the Administrator of EPA that noted EPA's expertise in solid waste disposal and the Army's lack of experience in the same area. The letter concluded by stating that "[i]t strains reason to have the Army Corps of Engineers, with its primary military and navigation missions, to lead this garbage disposal regulation."(51) In addition, a Memorandum of Agreement between the two agencies emphasized that EPA has sole responsibility for the regulation of solid waste disposal. The court found ample authority to support its conclusion that "when a proposed project affecting a wetlands area is a solid waste landfill ... EPA (or the approved state program), rather than the Corps, will have permit authority under ... RCRA."(52) Thus, the Ninth Circuit reversed the district court's decision and remanded the case with instructions to vacate the Corps' decision to deny RII's permit for the landfill.
C. Clean Water Act
1. Montana v. United States Environmental Protection Agency, 137 F.3d 1135 (9th Cir. 1998), infra Part IV.2.
2. Resource Investment, Inc. v. United States Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998), supra Part I.B.1
3. Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. 1998).
In this case, the Ninth Circuit denied standing to a citizens' group that claimed that the City of Santa Rosa, California, was violating provisions of its permit under the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act (CWA).(53) The court held that the district court had not committed clear error in finding that the city's methods of measuring compliance were reasonable and did not violate its permit, and that the citizens' group did not have standing because it was unable to prove the likelihood of continuing or recurrent violations of the CWA at the city's waste water treatment plant.
Under the CWA, discharge of pollutants into the navigable waters of the United States is regulated under the NPDES permit system.(54) In most cases, entities that discharge pollutants must obtain a permit from the authorized state or federal agency that specifies discharge prohibitions, effluent limitations, and other treatment and monitoring requirements. Here, the entity charged with issuing NPDES permits in the Santa Rosa area is the California North Coast Regional Water Quality Control Board (Board), established pursuant to California law. The Board issued the NPDES permits at issue in this litigation to the city in 1986, 1990, and 1996 in order to regulate discharges from the city's main wastewater treatment plant (the Laguna Plant). The permits contained discharge prohibitions; numeric effluent limitations; receiving water limitations; and requirements for solids disposal, pretreatment of industrial waste, monitoring, and reporting.
In 1995, the plaintiffs filed suit under the Clean Water Act, alleging that the city was in violation of its permit. Plaintiffs alleged that the city was continually and repeatedly violating its NPDES permit, but the district court rejected this allegation.(55) The district court also found that because the plaintiffs could not show a likelihood of recurring violations, they lacked standing to bring suit under the CWA.(56) On appeal, the Ninth Circuit affirmed the findings of the district court.
First, the appellants alleged that the city's method of measuring compliance with the discharge requirements was improper and resulted in discharge of wastewater in excess of the permit limitations. The executive officer of the Board had developed a "seven-day averaging method" for measuring allowable discharge rates. The Ninth Circuit found no clear error in the district court's determination that the city's compliance monitoring scheme was a reasonable interpretation of the permit's requirements, because the permit did not indicate the manner by which to calculate discharge requirements. In the absence of a specified method, the district court had properly held that the city's method was reasonable in light of the evidence showing that this technique was chosen because 1) it accounted for irregularities in the discharge system, 2) was workable, and 3) was chosen after comparison of a number of other methods. The appellate court noted that "[i]n sum, [plaintiffs'] argument boils down to their dissatisfaction with the method used by the City to calculate compliance with the NPDES permits.... They prefer a daily monitoring system to the seven-day averaging method selected.... [Their] preference, however, is unsupported by any showing that the seven-day averaging method is improper."(57)
Second, plaintiffs alleged that the city had failed to monitor final effluent chlorine and coliform organisms as required by the permit. The city had monitored chlorine and coliform by taking samples at the end of one of three chlorine contact chambers. Citing permit language that required that measurements be taken "`at the end of the chlorine contact chamber,'"(58) the district court found that the permit did not require multiple tests at the end of each chamber. The Ninth Circuit affirmed this finding, noting that the evidence showed that tests taken at one chamber were representative of chlorine and coliform levels in all three chambers.
Third, plaintiffs argued that the executive officer lacked authority to determine the method of compliance with the permit and that this determination constituted a modification of the permit. However, the Ninth Circuit noted that under California law, the Board was authorized to delegate this power to its executive officer. Furthermore, the court noted that establishing a method of compliance with a permit does not constitute a modification of the permit under federal law.
After dispensing with the merits of the case, the Ninth Circuit affirmed the district court's determination that the plaintiffs lacked standing. The court noted that under the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,(59) citizens may not sue under the CWA for wholly past violations. Plaintiffs could not pursue their claims against the city because they could not prove the existence of either ongoing violations or the reasonable likelihood of continuing future violations of the city's NPDES permit. Finally, the Ninth Circuit also affirmed the district court's award of costs to the city pursuant to the Federal Rules of Civil Procedure.(60)
4. United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998).
Appellant Iverson appealed a conviction of four counts of violating the Clean Water Act (CWA),(61) the Washington Administrative Code (WAC), and the City of Olympia's Municipal Code (Olympia code). He also appealed the conviction of one count of conspiring to violate the WAC or the CWA. He argued that 1) the district court misinterpreted the CWA, the WAC, and the Olympia code; 2) the cited provisions were unconstitutionally vague; 3) the district court erred in formulating its "responsible corporate officer" jury instruction; and 4) the district court erred by admitting evidence of defendant's prior discharges of industrial waste. The Ninth Circuit held that the district court had not abused its discretion and affirmed the convictions.
The appellant was the founder, president, and chairman of the board of CH2O, a company that blends chemicals to create products such as acid cleaners. The company shipped the blended chemicals to its customers in drums and asked that the drums be returned for reuse. The drums often contained chemical residue that CH2O removed by using a cleaning procedure that produced wastewater. In the early to mid-1980s, the appellant made several attempts to convince the local sewer authority to accept the wastewater, but it refused. Beginning in 1985, the appellant personally discharged and also ordered employees to discharge the wastewater through a sewer drain at an apartment complex that the appellant owned and through a sewer drain at the appellant's home. This continued until 1988.
In 1988 and at the direction of a new employee, CH2O began to pay a waste disposal company to dispose of the wastewater. In 1991, CH2O began shipping the drums to a professional outside contractor for cleaning. After CH2O fired the employee, the company reinitiated its drum-cleaning operation and disposed of its wastewater through a sewer in a newly acquired warehouse. The dram-cleaning operation continued until 1995, when CH2O learned that it was under investigation for the discharge of pollutants into the sewer.
A few months before CH2O reinitiated its drum-cleaning operation, the appellant announced his retirement from the company. He continued to receive money from CH2O, conduct business at the company's facilities, give orders to employees, and was occasionally present when the drums were cleaned. Sometimes he told employees that he had a permit for the operation and other times he told them that the consequences for getting caught were small.
A jury convicted Iverson of violating the CWA, the WAC, and the Olympia code. Although the WAC and the Olympia code violations are not federal offenses, the CWA allows states to administer water pretreatment programs. If the Environmental Protection Agency (EPA) approves a state's regulations, as it did for Washington, violations of those regulations are treated as federal criminal offenses.(62) The regulations implementing the CWA also require publicly owned treatment works (POTWs) to create their own regulatory programs.(63) These local regulations are considered pretreatment standards under the CWA.(64) Because EPA had approved the City of Olympia's regulations, violations of these regulations are also violations of the federal CWA.(65)
The appellant argued that the district court had misinterpreted the CWA, the WAC, and the Olympia code. The Olympia code defines a pollutant based on the effect of the discharge, and provides that if state standards are more stringent than federal standards, then state law applies.(66) The WAC states that "[a] permit is required for any source subject to pretreatment standards promulgated under ... [the CWA]."(67) Clean Water Act regulations prohibit the discharge of "[a]ny trucked or hauled pollutants, except at discharge points designated by the POTW."(68)
The court held that because the Olympia code and the WAC both incorporate the federal standard by reference, they also prohibit the discharge of "any trucked or hauled industrial waste except at discharge points designated by the POTW."(69) Because the appellant discharged hauled or trucked industrial waste at a point not designated by the POTW, he violated the CWA, the WAC, and the Olympia code regardless of any effect the discharges had on the water. Therefore, the Ninth Circuit held that the district court did not err in its interpretation of the CWA, the WAC, and the Olympia code.
Appellant also argued that the CWA, the WAC, and the Olympia code are unconstitutionally vague. A criminal statute is not vague if it gives adequate notice of the conduct the statute prohibits in terms that a "reasonable person of ordinary intelligence" would understand.(70) Additionally, when a criminal statute regulates economic activity, it is usually "subject to a less strict vagueness test ... because businesses can be expected to consult relevant legislation in advance of action."(71) The WAC and the Olympia code incorporated by reference the federal prohibition on the discharge of trucked or hauled industrial waste. The Ninth Circuit found that a reasonable person of ordinary intelligence would have consulted the incorporated provisions. Therefore, the appellate court held that the CWA, the WAC, and the Olympia code were not unconstitutionally vague.
Appellant next argued that the district court erred in formulating its "responsible corporate officer" jury instruction. The district court instructed the jury that it could find Iverson liable under the CWA as a responsible corporate officer if it found, beyond a reasonable doubt, that 1) defendant had knowledge of the fact that pollutants were being discharged to the sewer system by CH2O employees, 2) defendant had the authority and capacity to prevent the discharge of pollutants to the sewer system, and 3) Iverson failed to prevent the ongoing discharge of pollutants to the sewer system. The appellant argued that a corporate officer is "responsible" only when he or she in fact exercises control over the activity causing the discharge or has an express corporate duty to oversee the activity.
The Ninth Circuit disagreed. First, it looked to the statutory language of the CWA, which holds criminally liable "any person who ... knowingly violates" its provisions.(72) "Person" includes "responsible corporate officer," but the CWA does not further define that term.(73) The Ninth Circuit therefore looked to the plain meaning of the term "responsible" and held that it meant "answerable" or "accountable." Consequently, any corporate officer who is "answerable" or "accountable" for the unlawful discharge is liable under the CWA.
Second, the appellate court looked to the history of responsible corporate officer liability law and held that it agreed with the district court's construction of the CWA. Notably, in the CWA Congress used a similar definition of the term "person" as that formulated by the United States Supreme Court in a case that left the question of responsibility to the jury.(74) A later Supreme Court case (United States v. Park) refined the question for the jury as whether the corporate officer had the "responsibility and authority either to prevent in the first instance or promptly to correct, the violation complained of, and [whether] he failed to do so."(75)
Third, the court stated that Congress replaced the criminal provisions of the CWA after the Park decision and made no changes to its responsible corporate officer provision. The court therefore held that Congress intended Park's refinement of the doctrine to apply. Finally, the court stated that it had interpreted the term "person" in other statutes consistently with the Supreme Court's decision in Park. As a result, it was consistent for the court to do so in this instance. On the issue of corporate criminal liability under the CWA, the court concluded that a person is a responsible corporate officer if he has authority to exercise control over the corporation's activity that is causing the unlawful discharges. The CWA does not require that the officer in fact exercise that authority, or that the corporation expressly grant the officer the duty to oversee the activity.
The appellant next argued that the district court's jury instruction did not accurately reflect the "responsible corporate officer" doctrine. The jury instruction required the government to prove that the appellant had the authority and capacity to prevent the discharge of pollutants to the sewer system. This ensured that the jury could convict the appellant only if he had actual authority to exercise control over the drum-cleaning operation. According to Iverson, the "responsible corporate officer" instruction allowed the jury to convict him without finding a violation of the CWA, because the initial instruction on liability under the CWA required a showing that defendant knowingly caused a pollutant to be discharged to a POTW. The court rejected this contention, noting that this instruction, read together with the responsible corporate officer instruction, relieved the government only of having to prove that the appellant personally discharged or caused the discharge of a pollutant. The government still had to prove that the discharges violated the law and that the appellant knew that the discharges were pollutants. Consequently, the court held that the instructions were not erroneous.
Finally, the appellant objected to the district court's admittance of evidence of the appellant's prior discharges of industrial waste 1) on the plant property, 2) into the sewer at an apartment complex owned by the appellant, 3) into the sewer at the appellant's house, and 4) caused by a chemical spill at the plant. However, the court held that evidence of a prior bad act may be admissible for a purpose other than to prove that the appellant acted in conformity with those prior acts.(76) The court explained that admission of these prior acts was relevant to prove the material issue of knowledge and that the prior acts were not too remote to be admitted. Although some of the prior acts had occurred more than seven years ago, the court explained that because of the similarity between the prior and charged acts, and because the appellant's knowledge of CH2O's industrial waste did not change over the seven years, they were admissible.
5. Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426 (9th Cir. 1998).
Waste Action Project (WAP), an environmental group, brought suit against Dawn Mining Corporation (Dawn), alleging that the mining company was violating the Clean Water Act (CWA)(77) by discharging pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. Between 1957 and 1981, Dawn disposed of uranium mill tailings in unlined aboveground disposal areas on its site in Ford, Washington. After WAP ceased operations at the site, contamination from the mill tailings began to migrate into a nearby creek. WAP claimed that this migration required a NPDES permit because it qualified as a discharge of a pollutant under the CWA.
The CWA gives the Environmental Protection Agency (EPA) the authority to regulate "pollutants," which are defined in section 502(6) to include "radioactive materials."(78) The EPA limited its regulatory powers over "radioactive materials" in 1973 when it promulgated the CWA's implementation regulations, which explicitly exclude "byproduct materials" as defined in section 11(e)(2) of the Atomic Energy Act (AEA)(79) from the definition of "pollutant."(80) Initially, the AEA's definition of "byproduct materials" did not include uranium mill tailings. However, in 1978, Congress passed the Uranium Mill Tailings Radiation Control Act (UMTRCA),(81) which amended the definition of "byproduct materials" to explicitly include uranium mill tailings.
WAP argued that despite the plain language of the AEA as amended by UMTRCA, EPA has the authority to regulate uranium mill tailings as "pollutants." WAP based its argument on UMTRCA's savings clause, which states that nothing in UMTRCA changes EPA's existing regulatory powers under the CWA.(82) WAP asserted that, because the definition of byproduct materials did not explicitly include uranium mill tailings when EPA excluded "byproduct materials" from the scope of its regulatory power in 1973, EPA retained the authority to regulate uranium mill tailings.
In rejecting WAP's argument, the Ninth Circuit relied heavily on the United States Supreme Court's opinion in Train v. Colorado Public Interest Research Group,(83) which dealt with an issue virtually identical to that in the instant case. In Train, a unanimous Court held that Congress did not intend for the category of "pollutants" regulated by EPA through the NPDES permit program to include materials regulated exclusively under the AEA.
The Ninth Circuit determined that the plain meaning of the AEA and the legislative history of the CWA overwhelmingly contradict the technicality raised by WAP. Additionally, EPA had never before regulated uranium mill tailings. Instead, the Atomic Energy Commission (AEC), now the Nuclear Regulatory Commission (NRC), had regulated uranium mill tailings at active sites since the AEA was passed in 1954. Congress enacted UMTRCA in part to give NRC explicit authority to regulate mill tailings at inactive sites, and UMTRCA's savings clause was not intended to subsequently revoke this authority. While UMTRCA does give EPA authority to promulgate standards for the disposal of uranium mill tailings, it leaves the implementation and regulation of these standards to NRC. Finally, EPA revised and repromulgated the CWA's implementing regulations in 1979 to cite the Train decision and to explain that only radioactive materials not regulated by the NRC are pollutants for purposes of the CWA.(84) Consequently, the Ninth Circuit held that uranium mill tailings are not subject to NPDES permit requirements under the CWA.
D. National Environmental Policy Act
1. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998), cert. denied, 119 S. Ct. 2337 (1999), infra Part III.B.1.
2. Churchill County v. Babbitt, 150 F.3d 1072 (9th Cir.), as amended by 158 F.3d 491 (9th Cir. 1998), infra Part V.B.1.
3. Foundation for Horses & Other Animals v. Babbitt, 154 F.3d 1103 (9th Cir. 1998).
Enacted by Congress in 1980, the Channel Islands National Park Act (CINPA)(85) directs the Secretary of the Interior to acquire parcels of real property for incorporation into the Channel Islands National Park. Pursuant to CINPA, the National Park Service (NPS) developed plans for acquiring the privately owned eastern portion of Santa Cruz Island, owned by the Gherini family. Pursuant to the National Environmental Policy Act (NEPA),(86) NPS issued a general management plan/supplemental environmental assessment (GMP/SEA), which announced plans to remove all exotic animals from the island in order to restore its natural ecosystem. That same year, NPS also issued a finding of no significant impact (FONSI), concluding that an environmental impact statement (EIS) would not be necessary because NPS had identified no significant adverse consequences that would result from its actions to restore the natural condition of the island.
The acquisition of the eastern portion of the island was delayed by one of the Gherinis, who was not willing to sell his interest in the land. To combat the delay, Congress revised CINPA in November 1996 to require the acquisition of all of the Gherini property, either by purchase or condemnation,(87) The appellants, Foundation for Wild Horses and Other Animals (Foundation) and its individual members, claimed that NPS violated NEPA by failing to supplement its 1984 GMP/SEA and FONSI before acquiring the land and removing any exotic animals. Foundation argued that the existence of twelve horses, which had yet to be born at the time NPS conducted its original studies, required the preparation of another supplemental environmental assessment.
Before the court reached the question of whether a supplemental environmental assessment was required, it disposed of the case by holding that the horses were not subject to NEPA. The horses, even though they were feral, were the private property of the Gherini family. The Foundation admitted as much in sworn affidavits that 1) evidenced the Gherini family's intent to convey the horses to the Foundation, and 2) asserted the Foundation's claim of ownership. Because the horses were private property, they were subject to CINPA's mandate that all "equipment, facilities, or personal property" be removed from the Gherini property upon acquisition.(88) The court cited to Lake Berryessa Tenants' Council v. United States,(89) which held that NEPA did not apply to a government directive to remove privately-owned floating structures from a publicly-owned lake. Because the horses in the instant case were personal property and Congress had called for the removal of personal property from the island, the horses were not subject to NEPA's procedures.
4. Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998), infra Part III.B.2.
5. Idaho Sporting Congress v. Thomas, 137 F.3d. 1146 (9th Cir. 1998), infra Part III.B.3.
6. Kettle Range Conservation Group v. United States Bureau of Land Management, 150 F.3d 1083 (9th Cir. 1998).
Kettle Range Conservation Group and Inland Empire Public Lands Council (Kettle Range) sued the United States Bureau of Land Management (BLM) in the District Court of the Eastern District of Washington to prevent the agency from completing a land exchange with defendant-intervenor Clearwater Land Exchange (Clearwater). Kettle Range claimed that BLM had not adequately considered the environmental impacts of the sale under the requirements of the National Environmental Policy Act (NEPA).(90) They sought permanent injunctive relief from the district court. Specifically, Kettle Range asked the court to 1) prevent BLM from completing the land exchange until it complied with NEPA, and 2) rescind the contract between BLM and Clearwater pending compliance with NEPA. The district court partially granted and partially denied injunctive relief.
In the Ninth Circuit, Kettle Range sought emergency relief pending an appeal from the district court's decision. The district court granted plaintiff's request to prevent BLM from completing the land exchange until it complied with NEPA requirements. The court refused, however, to rescind the contract between BLM and Clearwater pending NEPA compliance, as Kettle Range had requested.
On appeal, the Ninth Circuit held that it could not rescind the contract because Kettle Range had neither joined nor made any attempt to join the private entities to which BLM had transferred the public lands. The private entities were "necessary parties" with respect to the relief sought, and Federal Rule of Civil Procedure 19(a) requires the "joinder of persons needed for just adjudication."(91) The Ninth Circuit determined that, under Rule 19, "the parties holding title to the lands were necessary because the district court could not grant complete relief without `impair[ing] or imped[ing]' their interests."(92)
Kettle Range argued that it could not join the private entities because NEPA did not afford a cause of action against private parties. The Ninth Circuit acknowledged the general prohibition against joining private parties in NEPA actions, but it also recognized an exception to this bar: "Nonfederal defendants may be enjoined if `federal and [nonfederal] projects are sufficiently interrelated to constitute a single federal action for NEPA purposes.'"(93) While the court suggested that it was possible that BLM's action fit this exception, it did not see this issue as dispositive of Kettle Range's claim. Instead, the court framed the issue in terms of whether or not the district court could have equitably rescinded the contract for the land exchange without the private entities being parties to the action. It held that it could not.
The appellants nevertheless argued that the court should have suspended the usual rules of joinder in this situation pursuant to the "public rights exception." Courts have applied this exception when "`litigation ... transcend[s] the private interests of the litigants and seek[s] to vindicate a public right.'"(94) The Supreme Court has restricted the applicability of this exception to "cases in which the third parties' interests at issue are not destroyed."(95) Because title to the land already transferred had vested in the private parties, however, the Ninth Circuit determined that any order that voided the executed portion of the land exchange would destroy the interests of the absent parties. Thus, the court held that this appeal did not fall under the public rights exception, and the usual rules of joinder under the Federal Rules of Civil Procedure applied.
Finally, the Ninth Circuit concluded, "at this point it might be impractical to unscramble the eggs."(96) Evidence suggested that private entities had already harvested timber on at least some of the transferred land. Thus, even if the court were to grant Kettle Range's requested injunction, there would be no guarantee that the land involved in the exchange would not already be bereft of timber.
In a concurring opinion, Judge Reinhardt, while acknowledging that the district court acted properly in this case, nevertheless expressed his frustration at the practical outcome of these proceedings. "Although the district court held that the government violated NEPA and that it transferred public lands in violation of ... environmental laws, those lands will now be clearcut ... by the private purchasers. That is not how our legal system is supposed to work."(97)
7. Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998).
In early 1997, the Federal Aviation Administration (FAA) began to design the Los Angeles International Airport (LAX) East Arrival Enhancement Project (AEP). The purpose of the project is to reduce air traffic into LAX from the east and to increase the overall safety of arrivals. The AEP would require shifting flight patterns so as to cross the Morongo Indian Reservation, located about ninety miles east of Los Angeles.
FAA solicited comments from the Morongo Band of Mission Indians (the Band) under the National Environmental Policy Act (NEPA).(98) The Band objected to the new AEP, claiming that increased flights over the Reservation would interfere with their cultural and spiritual ceremonies. The Band proposed an alternative route that would avoid the Reservation, and FAA included it in the final environmental assessment (EA) for the AEP. After public comment on the final EA, FAA nevertheless chose an alternative that would reroute LAX air traffic over the Reservation. FAA issued a finding of no significant impact (FONSI) on October 24, 1997 and a record of decision (ROD) on January 30, 1998, and implemented the decision on March 10, 1998.
The Band petitioned for review of the agency's decision, raising several issues before the Ninth Circuit. First, the Band argued that the United States and its agencies bore a trust responsibility toward the Band and that FAA had violated that trust when it implemented the AEP. The court conceded that the United States has a trust responsibility towards the Band, but that "unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at protecting Indian tribes."(99)
The court next turned to the Band's NEPA claims, which included whether the FAA had 1) evaluated a reasonable range of alternatives, 2) evaluated noise impacts from the AEP, 3) improperly segmented the AEP from the general LAX expansion project, and 4) failed to address the cumulative impacts of the AEP. The court first noted that FAA had considered two alternatives that avoided the Reservation, but that these alternatives did not meet the purpose and need of the AEP, which was to create a new airspace sector in order to increase safety at LAX. Because NEPA only requires agencies to consider reasonable alternatives that meet the purposes and needs of a project, FAA's decision to reject the alternatives that did not encroach upon the Reservation was reasonable. Furthermore, the court rejected the testimony of the Band's expert witness (who stated that the purpose and need of the project could be met without increasing flights over the Reservation), noting that agencies have the discretion to rely on their own experts.
Second, the court rejected the Band's contention that FAA had failed to adequately analyze the impacts from increased noise potentially caused by implementation of the AEP. The Band proffered several expert witnesses who testified that the agency had not properly calculated the increased noise from the AEP, but the court refused to referee a battle of the experts between the agency and the Band. Instead, the court held that it was not arbitrary and capricious for FAA to use its own methods in calculating noise over the Reservation.
Third, the court turned to whether FAA had improperly segmented the AEP from the LAX expansion project. The court turned to whether FAA had failed to analyze the cumulative impacts of the two projects by improperly segmenting the AEP from the LAX expansion project. The court analyzed the NEPA regulation regarding connected actions(100) as well as existing Ninth Circuit case law on connected actions(101) and found that the AEP could exist independently from the LAX expansion project. While the expansion project dealt with increasing the size of the airport, the AEP "was [intended] to deal with existing problems of delay and inefficiency in the arrival system."(102) Because the two projects were not dependent on each other for their completion, FAA had been reasonable in discussing the impacts from each project in separate NEPA documents.
Next, the Ninth Circuit rejected the Band's claim that FAA had failed to address the cumulative impacts from the expansion and AEP projects. Although the two projects were similar because they both concerned the arrival system at LAX, FAA had adequately considered the impacts from both projects in several documents, including the AEP Environmental assessment, the LAX Master Plan study, and terminal radar approach control facility projections. As a result, FAA had satisfied its NEPA duty to consider the cumulative impacts from both projects.
The court then turned to claims raised by the Band that FAA had violated the National Historic Preservation Act (NHPA)(103) when it failed 1) to prepare an environmental impact statement (EIS) that considered whether the AEP would adversely affect "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register;"(104) and 2) to obtain the Band's permission to implement the AEP. The court noted that all of the visual and acoustic studies showed that the impacts to the Reservation and its eligibility for placement on the National Register would be minimal; as a result, no EIS was required. Furthermore, the court explained that although the NHPA required FAA to follow up on any information received from the Band regarding historical or cultural property within the project area, the agency's failure in this case to do so was not fatal, because the agency had already determined that there would be no effect to the Reservation from the AEP. The court also rejected the Band's contention that the NHPA required the FAA to obtain the consent of the Band to implement the AEP, because "[c]onsent is required ... only if the action is found to have an effect on the land and, here, a finding of no effect was made."(105)
Finally, the court addressed the Band's claim that FAA had violated section 4(f) of the Transportation Act.(106) Section 4(f) prohibits the "use" of historic sites unless there is no prudent and feasible alternative to the project and the project includes minimization methods to reduce the amount of harm to the site.(107) Noting that section 4(f) only applies if there is in fact a "use" of the site, the court accepted the government's argument that an FAA order properly excluded the type of activity in the present case from categorization as a "use" of land. Because FAA had previously concluded that the AEP "`would not affect the normal activity or aesthetic value of the land,'"(108) there was no use of the Reservation, and FAA had not violated the Transportation Act.
8. Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372 (9th Cir. 1998), infra Part III.B.4.
9. Oregon Natural Resources Council Action v. United States Bureau of Land Management, 150 F.3d 1132 (9th Cir. 1998), infra Part III.B.5.
10. Presidio Golf Club v. National Park Service, 155 F.3d 1153 (9th Cir. 1998).
In 1899, the Presidio Golf Club (the Club) was constructed on private land adjacent to the Presidio military facility in San Francisco. The Club's golf course was actually on military property. Club membership was private, although military personnel could join for reduced rates. In 1994, the Presidio military facility closed, and ownership of the land was transferred to the National Park Service (Park Service). A year later, the Park Service contracted with Arnold Palmer Golf Management Company (Palmer Golf) to manage the golf course. Palmer Golf opened the golf course to public use and developed plans to construct a public clubhouse, potentially devaluing private membership at the Club.
As part of the development plans, the Park Service conducted an environmental assessment (EA) as required by the National Environmental Policy Act (NEPA).(109) Plaintiffs brought suit against the Park Service, claiming that the EA was inadequate under NEPA and that the new clubhouse would violate the National Historic Preservation Act (NHPA).(110) The Park Service in turn claimed that the Club did not have standing to sue. The district court found that the Club had standing, but that the Park Service had not acted arbitrarily or capriciously in preparing the EA. Thus, an environmental impact statement (EIS) was not required. The Club appealed.
The court first addressed the question of whether the appellants had standing under NEPA and the NHPA. In order to establish Article III standing, a plaintiff must show that 1) it has suffered an injury in fact that is imminent and particular, 2) there is a causal connection between the alleged harm and the defendant's actions, and 3) the injury is redressable by a favorable ruling by the court.(111) Prudential barriers to standing, including a determination of whether the plaintiffs injury is within the "zone of interests" that the statute at issue was meant to protect, also apply. The zone of interests stipulation is codified in section 702 of the Administrative Procedure Act (APA).(112)
In the present case, the Park Service claimed that the Club's only interest was economic, and that NEPA and the NHPA do not protect interests that are purely economic in nature. The court rejected this argument. It reviewed the charter of the private club as well as the text of NEPA and the NHPA, and concluded that among the goals of the club was the intent to commune with nature and promote social harmony. These goals were also the intent of NEPA and the NHPA. Because the APA requires only that the interest of the plaintiff be "arguably" within the zone of interests protected by the statute, the Club had standing.
The court likewise addressed the question of whether the Club as an organization had standing. An organization has standing to sue if 1) individual members of the organization would have standing, 2) the interests that the organization seeks to protect in the present case are related to the purpose of the organization, and 3) the relief requested by the organization is not a request for damages.(113) The Park Service claimed that the Club did not have organizational standing because the purpose of the suit (alleged by the Park Service to be economic) was not related to the objectives of the Club. The court rejected this contention, citing its previous analysis that the intent of the Club was not purely economic, but social as well. Additionally, the court noted that the Club was requesting injunctive relief, not damages.
Next, the court addressed whether there was a causal connection between the decision of the Park Service to construct a public clubhouse and the harm allegedly suffered by the appellant. The court upheld the district court's finding that the loss of membership suffered by the Club was not related to the construction of the public clubhouse, because the public clubhouse had not yet been built by the time that the Club began to notice a decrease in private membership. Therefore, this injury was not redressable. However, the Ninth Circuit noted that it was probable that the Club would lose more members when the public clubhouse was built, and this potential injury could be traced to the Park Service. This loss of members would be redressable by a favorable ruling at the appellate level.
The court then turned to the adequacy of the Park Service's EA. The plaintiff raised several claims under NEPA, including the Park Service's failure to adequately consider alternatives to the new clubhouse and the timing of the EA's preparation. First, regarding the claim that the Park Service failed to consider other alternatives, the court noted that on several instances the agency had attempted to negotiate with the Club in order to reach a mutually beneficial agreement and that the Park Service had considered renovating the Club. However, both of these options were impractical (because of resistance from the Club itself and monetary and practical considerations), prompting the Park Service's decision to build the public clubhouse. Therefore, the court held that the Park Service had considered a viable range of alternatives in the EA necessary to promote a reasoned decision as required by NEPA's regulations.(114)
Second, the court addressed appellants' claim that the EA had been prepared after the Park Service had decided to build the public clubhouse. The court dispensed with this concern quickly, noting that the examples in the record cited by appellants merely suggested that the Park Service had been reasonably sure that the new construction plan would be approved. According to the court, nothing in NEPA prevents an agency from expressing confidence that its preferred course of action will be adopted.
Finally, the court turned to appellants' contention that the EA was inadequate and that an environmental impact statement should have been prepared to address the effects of constructing a new public clubhouse. In evaluating this claim, the court considered 1) the significance of the impact to the environment that the new clubhouse would have, 2) the impact on historical resources (namely the Presidio clubhouse), 3) the unique characteristics of the area, 4) whether the new construction was highly controversial, 5) whether the effects of the construction were uncertain, and 6) whether the failure to prepare an EIS for the new project would set poor precedent for future development. The court found for the Park Service, holding that the agency had not been arbitrary and capricious in preparing the EA. Thus, an EIS was not required.
The court explained that although the Presidio clubhouse was eligible for placement on the National Register of Historic Places, the EA adequately demonstrated that this eligibility would not be threatened by the construction of the public clubhouse. The court also held that the EA adequately considered the particular ecological and cultural significance of the area. Next, although the public clubhouse was highly controversial among the Club's private membership, the controversy did not warrant an EIS because the Park Service had effectively addressed the concerns raised by the members in the EA. The court rejected the contention that the Park Service did not resolve any uncertainties of the effects of the new clubhouse, because the EA was fairly detailed, outlined the expected impacts from the construction, and effectively resolved any concerns. Finally, the court did not believe that the Park Service's failure to prepare an EIS would set poor precedent for the standards under which an EIS is required. Instead, the new construction was a single project that was unlike other construction and therefore did not threaten to become the standard under which an EIS should be prepared.
After holding that an EIS was not required, the court considered whether the Park Service had unreasonably refused to consider the Club an "interested person" under the NHPA. The plaintiffs claimed that the Park Service did not consult with them when developing its construction plan as required by the NHPA. The Park Service, on the other hand, maintained that it was not required to consult with the Club since it previously found, pursuant to the NHPA, that there would be no adverse impact. The plain meaning of the NHPA regulations only requires consultation with an interested party if the agency makes a determination of an adverse impact as a result of the planned action.(115) Otherwise, the agency is only required to give due consideration to the views of "interested persons." The court concurred with the Park Service and held that no consultation was required.
Finally, the Ninth Circuit examined the issue of whether a litigation affidavit prepared by the Park Service was properly considered by the district court. The Ninth Circuit held that it was. In so holding, the court noted that although courts generally disfavor post hoc rationalizations, exceptions exist. One such exception is when the agency is attempting to elaborate upon its decision and the rationale behind it. Here, the court found that the affidavit had been created not to supplant a lack of information, but rather to clarify the existing record.
11. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998), infra Part V.A.2.
12. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998), infra Part III.A.4.
II. TORTS
1. Miller v. United States, 163 F.3d 591 (9th Cir. 1998).
Plaintiffs brought suit against the federal government under the Federal Tort Claims Act (FTCA)(116) for damages to their cattle ranch caused by a forest fire that originated in a national forest and spread to their property. The district court granted summary judgment for the government, holding that the FTCA's discretionary function exception(117) immunized the government from suit. The Ninth Circuit affirmed.
On August 6, 1990, several lightning-ignited forest fires raged through the Snow Mountain Ranger District of the Ochoco National Forest. At approximately 7:00 p.m., a forest service employee first spotted the fire that damaged the plaintiffs' property. Employees of the United States Forest Service promptly ordered fire suppression equipment, all of which had been committed to other fires. On-the-ground fire suppression efforts did not begin for the fire in question until seventeen to twenty-three hours after the fire was first sighted. The fire joined two other fires and crossed onto the plaintiffs' property on the afternoon of August 9, 1990, damaging plaintiffs' cattle ranch.
The FTCA waives sovereign immunity for tort actions against the federal government arising out of the negligent conduct of federal employees acting within the scope of their employment.(118) However, the statute contains an exception that preserves sovereign immunity when the claim is based on a discretionary act or omission,(119) The court applied a two-part discretionary function test(120) and concluded that the statute's exception barred the plaintiffs' claim.
The first prong of the two-part test required the court to determine whether the actions of the Forest Service employees necessarily involved an element of choice. The court cited as precedent two district court opinions for the proposition that discretionary immunity applies to lightning-induced multiple fire situations.(121) No federal statute, regulation, or policy specifically prescribed a particular course of action for the Forest Service in combating this fire. On the contrary, the Forest Service's Mobilization Guide explicitly allows for discretion in multiple fire situations by stating that "`initial attack response may vary depending on availability of resources.'"(122) The standards and procedures proffered by the appellants "outline[d] certain requirements for fire suppression, [but] they [did] not eliminate discretion because they [did] not tell firefighters how to fight the fire."(123)
The second prong of the two-step analysis required the court to consider whether the Forest Service's actions were susceptible to a policy analysis grounded in social, economic, or political concerns. The court again referred to the two earlier district court opinions, this time for the proposition that decisions regarding the allocation of fire suppression resources are grounded in public policy.(124) The policies and objectives that govern these decisions involve a balancing of considerations such as cost, public safety, firefighter safety, and resource damage. These considerations reflect the type of social, economic, and political concerns that the FTCA's discretionary function exception is designed to protect.
Finally, the Ninth Circuit addressed the appellants' heavy reliance on Rayonier, Inc. v. United States.(125) In that case, heavy winds revived a fire put out by the Forest Service more than a month prior, resulting in destruction of private property. The United States Supreme Court in that case held that the FTCA did not immunize the Forest Service from suit.(126) Rayonier did not include a discussion of the discretionary function exception. At the time it issued the Rayonier opinion, the Court had not yet formulated the two-step analysis approach to discretionary immunity. For these reasons, Rayonier did not control the case at bar, and the court rejected the appellants' reliance on it.
III. NATURAL RESOURCES
A. Fish and Wildlife
1. Foss v. National Marine Fisheries Service, 161 F.3d 584 (9th Cir. 1998).
In 1993, the Secretary of Commerce instituted an Individual Fishing Quota (IFQ) program in an effort to control overfishing of halibut and sablefish resources and to create "a stable market for transferable fishing rights."(127) The plaintiff, a commercial fisherman whose permit application was rejected because it was submitted forty-five days past the regulatory deadline, brought this case against the National Marine Fisheries Service (NMFS), claiming that NMFS violated his procedural due process rights by not providing him with actual notice of the IFQ program. The plaintiff also claimed that NMFS had violated the Administrative Procedure Act (APA)(128) by arbitrarily and capriciously adopting a fixed application deadline without providing actual notice and by not providing an adequate opportunity for notice and comment before promulgating its application deadline. Finally, the plaintiff argued that the court should equitably toll the application deadline for the plaintiff because an employee of the International Pacific Halibut Commission (IPHC) had informed him that NMFS had proposed establishment of the IFQ program but that nothing was imminent, when in fact at that time the final rules establishing the IFQ program were only eleven months from final publication.
The Ninth Circuit first held that for purposes of the Due Process Clause of the Fifth Amendment, the applicant held a protectable property interest in receiving a permit. NMFS's regulations require the agency to grant an IFQ permit to any qualified person who meets objective and explicit regulatory criteria. All applicants who have previously fished for halibut or sablefish during specified years are automatically entitled to quota shares of the allowable catch provided that they comply with the program's procedural requirements. Finally, an IFQ permit can be sold, transferred, leased, inherited, or divided as marital property in a dissolution.
Next, the Ninth Circuit held that NMFS had not violated the applicant's procedural due process rights. The court applied the Matthews v. Eldridge(129) balancing test and determined that NMFS's notification and appeals processes were both constitutionally sound. Under the first factor of the test, the plaintiff clearly had a valuable private property interest in receiving the permit. Under the second factor, the risk of an erroneous deprivation of the plaintiff's interest was low. NMFS set the application period so that it would fall during months when the commercial fishing fleet was not active. NMFS also published formal notices in the Federal Register; sent applications to thousands of potential applicants and resent applications that were returned undelivered; and publicized the IFQ program and its deadlines in industry magazines, news releases, paid advertisements, public service announcements, and information workshops. Additionally, NMFS's appeals procedure, which allowed the applicant a thorough review of his claim, was more than adequate. Under the third factor of the Matthews balancing test, NMFS's procedures, especially its strict application deadline, served its compelling interest in establishing a fixed pool with a stable market value. An actual notice requirement would have placed an unwarranted burden on NMFS.
The Ninth Circuit also held that NMFS had not violated the Administrative Procedure Act. NMFS had not acted arbitrarily and capriciously by adopting the 180-day regulatory application period without actual notice, because there was a rational connection between the agency's procedures and its objectives. Additionally, NMFS provided an adequate opportunity for notice and comment when it published its proposed rule eleven months before adopting its final rules and thirteen months before publishing its application period. After the proposed rules were published, more than seventeen pages of public comments and responses were published in the Federal Register. NMFS's rule announcing the application period complied with the APA because it was in character with the original proposed rules and was a logical outgrowth of the public comments the agency received.
Finally, NMFS properly rejected the appellant's application because it violated the IFQ's regulatory deadline. Equitable tolling should be sparingly used against the government and would not have been appropriate in this situation. The IPHC employee who had informed the plaintiff that the program was not imminent was at worst guilty of excusable neglect, not wrongful conduct. Neither was the plaintiffs change of residence an extraordinary circumstance beyond his control that hindered him from submitting his application in a timely fashion.
2. Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir. 1998), cert. denied, 119 S. Ct. 1754 (1999).(130)
The United States Bureau of Reclamation (the Bureau) constructed the Friant dam unit (Friant Dam) of the Central Valley Project on the San Joaquin River in California in 1944. In the late 1940s, the Bureau began entering into forty-year contracts with irrigation and water districts for the supply of water from the newly built dam. All of the contract holders had a right of renewal when their contracts expired.
In 1988, fifteen environmental groups, led by the Natural Resources Defense Council (NRDC), filed suit against the Bureau after it began negotiations for renewal of the first contract to expire. The plaintiffs' amended complaint alleged violations of the Endangered Species Act (ESA),(131) the National Environmental Policy Act (NEPA),(132) section 8 of the Reclamation Act,(133) and section 5937 of the California Fish and Game Code.(134) In 1989, the irrigation and water districts were permitted to intervene.
The Friant Dam adversely affects the endangered Sacramento winter-run chinook salmon and other listed species in the Friant Service Area by impounding the San Joaquin's water and diverting it to irrigation canals, leaving a long stretch of the San Joaquin dry. NRDC claimed that the Bureau had violated ESA section 7(a)(2)(135) by failing to timely consult with the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) on the effects of the contract renewals on salmon and other protected species. The group also claimed that NMFS and FWS had violated ESA section 7(d)(136) by renewing the contracts prior to consultation, constituting an irreversible and irretrievable commitment of resources.
The Ninth Circuit first held that the contract renewals qualified as agency actions under the ESA.(137) Sierra Club v. Babbitt,(138) which prohibits application of the ESA to agency actions that involve no discretionary authority, did not save the Bureau because the federal government retained some discretionary authority during the negotiation process. The federal reclamation laws state that contracts are to be renewed "under stated terms and conditions mutually agreeable to the parties,"(139) that water rights are based on the amount of available project water,(140) and that the Secretary of the Interior has discretion to set rates to cover operation and maintenance costs.(141) Additionally, under O'Neill v. United States,(142) the Bureau retained discretion throughout the life of the contracts to ensure compliance with subsequently enacted federal law. Even though the districts had "a first right ... to a stated share or quantity of the project's available water supply,"(143) the Bureau had discretion to reduce the amount of water available for sale or alter other key contract terms if necessary to comply with the ESA.
After holding that the contract renewals were discretionary agency actions, the Ninth Circuit held that the Bureau had violated the procedural mandate of ESA section 7(a)(2) by failing to request formal consultation with NMFS before renewing the contracts. Once the chinook was listed, the Bureau had independently determined that the contract renewals were not likely to adversely affect the salmon. The Director of NMFS refused to concur in this determination, but stated that formal consultation was not required. The court held that the Bureau had a legal obligation to at least request formal consultation with NMFS. The Bureau had acted arbitrarily and capriciously by relying on NMFS's assurances that consultation was not required.
The Ninth Circuit also held that the Bureau had failed to timely consult with FWS on other endangered species in the vicinity of the Friant Dam. FWS issued a "no jeopardy" biological opinion (BiOp) in October 1991, but by that time, ten of the Friant contracts had already been renewed. The court explained that if the BiOp had been timely, it might have allowed for more flexibility in modifying the contracts, because FWS may make nonbinding conservation recommendations even when it reaches a "no jeopardy" determination.(144) Therefore, the issuance of the BiOp had not mooted NRDC's consultation claim.
Next, the court ruled that by renewing the contracts, the Bureau had violated ESA section 7(d). This section prohibits irreversible or irretrievable commitment of resources that have the effect of foreclosing the formulation or implementation of reasonable and prudent alternative measures that might have arisen during consultation. The allocation of water under the contract renewals clearly constituted such a commitment. A clause in each of the contracts permitting modifications to the contracts in order to comply with federal law did not save the contract renewals from violating section 7(d), because this clause limited conservation-based modifications to minor adjustments only and prohibited adjustments in the mount of water delivered.
One of the contract holders, Orange Cove Irrigation District, claimed that formal consultation was not required for its contract. The Bureau and FWS had informally consulted and mutually agreed that the Orange Cove contract was not likely to adversely affect any protected species. Both the informal consultation and the renewal of the Orange Cove contract occurred before the Chinook salmon was listed, and Orange Cove argued that no agency action had occurred after the listing to require reinitiation of consultation under the ESA. The Ninth Circuit rejected this argument by pointing to a clause in the contract that conditioned the contract's binding effect on validation in state court. The California courts did not validate the contract until February 1990, six months after the listing of the Chinook. The Bureau's delivery of water in the interim constituted discretionary agency action, triggering an affirmative duty for the Bureau to withdraw the Orange Cove contract and initiate consultation with NMFS.
After finding the foregoing ESA violations, the Ninth Circuit affirmed the district court's decision to rescind the contracts under the authority of the APA, which requires courts to set aside agency actions that are arbitrary, capricious, or not in accordance with law.(145) The Ninth Circuit held that the rescission of the contracts had been well within the discretion of the district court. While the Ninth Circuit had held in an earlier case that injunctive relief is the proper remedy for substantial procedural violations of the ESA,(146) that case did not appear to involve an irreversible and irretrievable commitment of resources. Here, by renewing the contracts, the Bureau had eliminated the opportunity to choose other courses of action. Therefore, injunctive relief would be meaningless unless the contracts were also invalidated.
The district court dismissed NRDC's challenge under the ESA to the substantive validity of the BiOp and its claim under NEPA that the Bureau was required to conduct an environmental impact statement (EIS) on the Friant Dam. The district court reasoned that the remedy of contract rescission had afforded NRDC complete relief, thereby rendering these issues moot. Furthermore, Congress had already required the preparation of an EIS on the operations of the Friant Dam in 1992 with the passage of the Central Valley Project Improvement Act (CVPIA).(147) Accordingly, the Ninth Circuit affirmed the district court's holding.
Finally, NRDC claimed that section 8 of the Reclamation Act required the Bureau to comply with section 5937 of the California Fish and Game Code. Under California v. United States,(148) section 8 requires the federal government to comply with state water laws unless a federal statute clearly preempts state law. NRDC argued that section 8 requires the Bureau to comply with section 5937, which requires dam owners to allow sufficient water for fish to pass through a fishway or over, around, or through the dam.(149) The district court concluded that federal law did not prima facie preempt section 5937, and the Ninth Circuit agreed. However, the district court had erred when it had determined that the section 5937 claim lacked ripeness once the contracts were rescinded. The section 5937 claim--if applicable--was directed toward the Bureau, which has an independent duty to comply with section 5937 regardless of any contractual arrangements. The Ninth Circuit reversed and remanded for a determination of whether section 5937 applies to the Friant Dam under state law. If so, the Ninth Circuit directed the lower court to determine whether section 5937 of the California Fish and Game Code is preempted by the CVPIA, which requires the Secretary to dedicate, deliver, and manage specified amounts of water in order to protect, restore, and enhance fish and wildlife.(150)
3. Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152 (9th Cir. 1998), infra Part V.A.2.
4. Southwest Center for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998)
The plaintiff, Southwest Center for Biological Diversity (Southwest Center), alleged violations of the Endangered Species Act (ESA)(151) by the United States Bureau of Reclamation (the Bureau). The plaintiff asserted that the Bureau's operations on the Lake Mead delta behind Hoover Dam on the Lower Colorado River caused high water levels that inundated the habitat of the endangered southwestern willow flycatcher (Flycatcher). Southwest claimed that the Bureau had violated ESA section 7(152) by jeopardizing the continued existence of the Flycatcher and section 9(153) by "taking" Flycatchers through habitat modification without a valid incidental take permit.
On appeal, appellants raised two issues. First, Southwest Center sought an injunction requiring the Bureau to draw down the level of Lake Mead in order to preserve Flycatcher habitat in the delta. Second, appellants claimed that the Secretary of the Interior (Secretary), acting through the United States Fish and Wildlife Service (FWS), had violated the "arbitrary and capricious" standard of the Administrative Procedure Act (ARA)(154) when FWS adopted a final reasonable and prudent alternative (RPA) that differed substantially from its draft RPA. In addition, seven southwestern states (the States) claimed that they were indispensable parties and that the suit should have been dismissed for failure to join them.
In upholding the district court's grant of summary judgment for lack of subject matter jurisdiction over the claims against the Bureau, the Ninth Circuit held that Southwest Center had not complied with the notice requirement in the ESA's citizen suit provision. Under this requirement, any citizen bringing suit under the ESA must provide written notice to both the Secretary and the alleged violator at least sixty days prior to filing suit.(155) Three letters sent to the Secretary and the Bureau failed to strictly comply with the notice requirement. Although the letters were timely and explicitly indicated intent to sue under the ESA, they did not sufficiently alert the Secretary and the Bureau to the specific violations that Southwest eventually alleged.
The court explained that the purpose of the notice requirement is to require the provision of sufficient information of a violation so that the alleged violator can identify and attempt to abate the alleged violation. Southwest Center's letters failed to provide such information. One of the letters complained that the Bureau had illegally "taken" listed species on the Lower Colorado River, but none of the letters mentioned the Bureau's operations at Hoover Dam or the Flycatcher habitat at Lake Mead. A fourth letter claimed that the Bureau's operations at Hoover Dam were jeopardizing the continued existence of the Flycatcher, but the appellants conceded that this letter failed to satisfy the notice requirement because it was sent to FWS and not the Secretary or the Bureau.
After it dismissed Southwest Center's complaint against the Bureau, the district court also dismissed as moot the States' motion to establish indispensable party status. The Ninth Circuit affirmed. Although the States had a clear interest in the water level at Lake Mead, their claim became moot as a matter of law once the plaintiffs complaint was dismissed.
Southwest Center's complaint against the Secretary claimed that he, acting through FWS, had violated the APA by acting arbitrarily, capriciously, and contrary to the ESA.(156) The ESA required FWS to suggest reasonable and prudent alternatives not likely to jeopardize the continued existence of the Flycatcher or to result in the destruction or adverse modification of its habitat.(157) FWS adopted a final RPA that, unlike its draft RPA, neither required the Bureau to immediately protect and maintain the Flycatcher's habitat at Lake Mead nor to maintain substitute habitat at Roosevelt Lake, Arizona. FWS omitted these measures from its final RPA because the Bureau alleged that it lacked discretion to reduce the level of Lake Mead. Southwest Center claimed that the Secretary had improperly rejected the draft RPA because he had failed to independently review the Bureau's opinion that it lacked such discretion.
The district court repudiated Southwest Center's argument, holding that the Secretary's decision not to adopt the draft RPA was not arbitrary or capricious, and the Ninth Circuit affirmed. In deciding whether the Secretary has acted arbitrarily and capriciously or has abused his discretion in adopting an RPA, a court should focus only on the standards and requirements of the ESA and whether the final RPA meets them. The ESA required the Secretary to adopt an RPA that would protect the Flycatcher from jeopardy and that could be implemented, not necessarily the RPA that was originally favored or that would most effectively protect the species. In addition, the ESA did not require the Secretary to explain why one RPA was chosen over another, to base his decision solely on apolitical factors, or to maintain his opinion that preserving the Lake Mead habitat was necessary to the Flycatcher's survival. Finally, the court noted that Southwest Center had not presented any convincing evidence that the final RPA would fail to sufficiently protect the Flycatcher.
5. United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999).
In this case, the Ninth Circuit upheld Chad McKittrick's conviction for violating both the Endangered Species Act (ESA or Act)(158) and the Lacey Act(159) when he killed a gray wolf and transported its head and hide to his home. Specifically, the government charged McKittrick with the following three counts: 1) taking the wolf in violation of ESA sections 9(a)(1)(G)(160) and 11(b)(1)(161) and 50 C.F.R. section 17.84(i)(3), 2)possessing the wolf in violation of ESA sections 9(a)(1)(G) and 11(b)(1) and 50 C.F.R. section 17.84(i)(5), and 3) transporting the wolf in violation of the Lacey Act.(162) A jury convicted McKittrick in a trial before a magistrate judge, and the district court affirmed this conviction. While the court upheld McKittrick's conviction on each of these counts, it remanded the case to the magistrate judge to reconsider his sentence.
McKittrick raised five arguments on appeal. First, he asserted that the ESA did not protect the wolf that he killed. Second, he contended that the separate counts charging him with both taking and possessing the wolf were duplicative. He argued that he had not knowingly killed the wolf because he had not been aware of what he was shooting. In addition, McKittrick felt that the trial court had erred in its jury instruction regarding the incidental take exception to the ESA. Finally, he asserted that the trial court had erroneously failed to reduce his sentence under the sentencing guidelines by two levels when he accepted responsibility for his actions.
McKittrick argued that the United States Fish and Wildlife Service (FWS) had failed to follow appropriate procedures when it created an experimental population of gray wolves in Yellowstone. Specifically, he contended that 1) FWS erred when it used animals from an unlisted population to create the experimental population, 2) the experimental population was not valid because it was not "wholly separate geographically" from naturally occurring wolves in the area, 3) the Secretary of the Interior (Secretary) did not make findings required by ESA section 4(d),(163) and 4) FWS's efforts to reintroduce wolves into Yellowstone represented a poor allocation of resources in violation of ESA section 4(f).(164) Because these determinations involved FWS's interpretations of both the ESA and its own regulations, the Ninth Circuit accorded Chevron(165) deference to the agency's decisions.
McKittrick asserted that the ESA required FWS to use only endangered wolves when it created an experimental population in an attempt to restore viable numbers of gray wolves to Yellowstone. He argued that because the wolves in the experimental population in Yellowstone had come from Canada, where they were not considered endangered, the experimental population did not meet the ESA's requirements and therefore did not merit protection under that Act. The Ninth Circuit rejected this interpretation of the ESA, stating that "gray wolves are protected by the ESA based on where they are found, not where they originate."(166) Thus, when the wolves had crossed the border into Yellowstone, they had become endangered for purposes of the ESA.
In addition, the court noted that the appellant's interpretation of the ESA violated its spirit. Under his interpretation, the Secretary would be forced to create an experimental population by further depleting populations of animals already at dangerously low levels, thereby circumventing the ESA's essential purpose of conserving species at all costs. The court adopted FWS's interpretation of ESA section 10(j)(167) and determined that the experimental population was valid.
The court then rejected McKittrick's interpretation of ESA section 10(j)(1), which provides that a population qualifies as experimental under the ESA "only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species."(168) The appellant argued that sporadic sightings of isolated wolves in the area deprived the introduced population of experimental status, because the population was not geographically isolated from indigenous wolves. The court, however, read the statute to apply only to populations of indigenous gray wolves, noting that the Federal Register defines a population as consisting of "at least two breeding pairs of gray wolves."(169) Thus, the mere presence of individual indigenous wolves was not enough to deprive the introduced population of experimental status under the ESA. Judge O'Scannlain suggested in a concurring opinion that the court need only look to the text of the ESA in order to resolve this issue. He read the text to support his conclusion that "[al single straggler does not a population make."(170)
The court characterized McKittrick's arguments regarding potential violations of sections 4(d) and 4(f) of the ESA as "meritless."(171) McKittrick claimed that the Secretary had failed to comply with section 4(d) because he had failed to recite the words "necessary and advisable" in the special rules that he had promulgated that applied to the establishment of experimental gray wolf populations. He also claimed that because gray wolves are plentiful in both Alaska and Canada, restoration efforts in Yellowstone represented a poor allocation of resources and thus violated section 4(f) of the ESA. The court noted that the "necessary and proper" language required by section 4(d) could be found in the Code of Federal Regulations,(172) and that the Secretary was entitled to discretion in determining how to allocate species conservation resources. Moreover, the court added that the "presence of healthy wolf populations in Canada and Alaska does not, in any event, make the recovery of U.S. populations any less crucial."(173)
The Ninth Circuit next determined that the government had not violated McKittrick's constitutional fights when it charged him with both killing and possessing the endangered wolf in separate counts. McKittrick argued that the indictment was duplicative and thus violated his right to be free from double jeopardy under the United States Constitution.(174) The court, however, concluded that the indictment was not duplicative because each separately charged violation "`requires proof of an additional fact which the other does not."(175) The first count required proof that McKittrick took a wolf, and the second did not. The second count, on the other hand, required proof that McKittrick possessed the wolf, which the first count did not. Thus, the indictment did not violate McKittrick's fights under the double jeopardy clause.
McKittrick next unsuccessfully asserted that the district court had erred when it had instructed the jury. First, he challenged the court's instructions regarding the requisite mens rea to find him guilty of killing the wolf in violation of the ESA. He argued that the ESA required the government to prove that he knew he was shooting a wolf in order to establish his guilt. The Ninth Circuit, however, upheld the district court's instructions and held that the ESA violation did not require this level of culpability, because the Act is a general intent offense. Thus, the jury needed only to find that McKittrick knowingly killed an animal--and that animal turned out to be a protected gray wolf.
The appellant also argued that the court had erred in explaining the "incidental take" exception to the jury, and that this error had shifted the burden of proof from the government to him to prove whether or not the exception applied. The Ninth Circuit dismissed the initial assertion by stating that the district court's instruction regarding the exception precisely followed the language of the regulation defining it. And while the issue of who had the burden of proof to establish the applicability of the incidental take exception under the ESA was not necessarily clear to the Ninth Circuit, the court nevertheless determined that the magistrate judge's instructions clearly placed the burden on the government.
The Ninth Circuit did, however, find merit in at least one of the appellant's arguments. McKittrick argued that he should have received a two-level sentencing departure for accepting responsibility for his conduct. The Ninth Circuit stated that McKittrick was entitled to challenge the mens rea requirement of the ESA without sacrificing his eligibility for this reduction. Because the language in the presentence report was ambiguous as to whether or not the magistrate judge denied the reduction based on an impermissible ground, the Ninth Circuit remanded the case for the magistrate to reconsider his sentencing determination.
6. United States v. Senchenko, 133 F.3d 1153 (9th Cir.), cert. denied, 119 S. Ct. 171 (1998).(176)
In this case, the Ninth Circuit affirmed the conviction of Nikolay Senchenko for a felony violation of the Lacey Act.(177) The government sought to prove that Senchenko had "knowingly engaged in conduct involving an intent to sell wildlife with a market value in excess of $350 ... by transporting said wildlife knowing it was taken in violation of United States law or regulation."(178) The jury in the district court found that Senchenko had violated a feder