Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

This case involves alleged violations of the Clean Water Act (CWA). Plaintiff Cottonwood Environmental Law Center (Cottonwood) filed suit against Defendants Big Sky County Water & Sewer District No. 363 (the District) and Boyne USA, Inc. (Boyne) for their alleged discharge of treated wastewater into the West Fork of the Gallatin River (the West Fork) without a National Pollution Discharge Elimination System (NPDES) permit. The district court ruled that Cottonwood could not advance a direct-discharge theory of CWA liability against the District at trial. The district court also dismissed Cottonwood’s claim against Boyne for lack of proper notice.   The Ninth Circuit affirmed in part and reversed in part the district court’s judgment. Affirming in part, the panel held that the district court properly ruled, in orders denying summary judgment, that Cottonwood could not advance a direct-discharge theory of liability against the District at trial. The panel held that it had jurisdiction to review the district court’s orders denying summary judgment to Cottonwood because, in those orders, the district court rejected Cottonwood’s direct-discharge theory as a matter of law. The panel affirmed the district court’s holding that the District could not be liable on a direct-discharge theory because an underdrain pipe below but not connected to the District’s holding ponds did not transfer pollutants between meaningfully distinct water bodies and thus was not a “point source” of pollution. Reversing the district court’s dismissal of Cottonwood’s Clean Water Act the panel held that Cottonwood’s letter to Boyne provided sufficient notice of Cottonwood’s indirect-discharge theory of liability. View "COTTONWOOD ENVIRONMENTAL LAW CENTER, ET AL V. RON EDWARDS, ET AL" on Justia Law

For several years, Defendant, Shannon Poe, engaged in instream suction dredge mining in Idaho’s South Fork Clearwater River (the South Fork) without a National Pollutant Discharge Eliminating System (NPDES) permit. Plaintiff Idaho Conservation League (ICL) sued Poe, arguing that he violated the CWA each time he operated a suction dredge on the South Fork without an NPDES permit. Poe countered that (1) his suction dredge mining did not add pollutants to the South Fork and therefore did not require an NPDES permit, and (2) even if his suction dredge mining did add pollutants, those pollutants are “dredged” or “fill” material regulated exclusively pursuant to Section 404, not Section 402, of the CWA. The district court granted summary judgment to ICL. Poe appealed the judgment as to liability.   The Ninth Circuit affirmed. The panel held that to establish a violation of the Clean Water Act’s NPDES requirements, also referred to as Section 402 permitting, a plaintiff must prove that the defendant (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source. As to the first element, the panel held that Poe’s suction dredge mining “added” a pollutant to the South Fork. The panel followed Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990), which upheld Environmental Protection Agency regulations interpreting the Clean Water Act. The panel further held that the processed material discharged from Poe’s suction dredge mining was a pollutant, not dredged or fill material, and therefore required an NPDES permit under Section 402 of the Clean Water Act rather than a permit from the Army Corps of Engineers under Section 404. View "IDAHO CONSERVATION LEAGUE V. SHANNON POE" on Justia Law

In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. That conclusion is not shared by a consensus of the scientific community. As a result, Certain businesses whose products expose consumers to glyphosate were required to provide a Prop 65 warning that glyphosate is a carcinogen. Plaintiffs, a coalition of agricultural producers and business entities, asserted that Prop 65’s warning violated their First Amendment rights to be free from compelled speech. The district court granted summary judgment in favor of Plaintiffs.   The Ninth Circuit affirmed. The panel concluded that the government’s proposed Prop 65 warnings as applied to glyphosate were not purely factual and uncontroversial and thus were subject to intermediate scrutiny. The proposed warning that “glyphosate is known to cause cancer” was not purely factual because the word “known” carries a complex legal meaning that consumers would not glean from the warning without context, and thus the word was misleading. As to the most recent warning proposed by the California Office of Environmental Health Hazard Assessment (OEHHA), the panel held that the warning still conveys the overall message that glyphosate is unsafe, which is, at best, disputed. The panel held that because none of the proposed glyphosate Prop 65 warnings were narrowly drawn to advancing California’s interest in protecting consumers from carcinogens, and California had less burdensome ways to convey its message than to compel Plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional. View "NAWG, ET AL V. ROB BONTA, ET AL" on Justia Law

The Bonneville Power Administration (BPA) is a federal agency tasked with selling the power generated at various hydroelectric facilities in the Pacific Northwest. In the decision on review, BPA set its rates for the 2022–2023 fiscal period. Environmental groups now petition for a review of that decision, arguing that BPA failed to comply with a pair of statutory duties in the Northwest Power Act relating to fish and wildlife.   The Ninth Circuit denied the petition. The panel held that petitioners had Article III standing. First, petitioners have alleged injury, in fact where they are interested in the fish populations in the Columbia River Basin, and ongoing harm to these fish populations inflicts an injury on petitioners’ members. Second, any harm to the fish populations is traceable to BPA’s BP-22 ratemaking. Third, Petitioners have adequately alleged redressability where it is a reasonable inference from the historical record that Petitioners’ injuries would be at least partially redressed by a favorable decision on the merits. Turning to the merits, the panel held that the text and structure of the NWPA as a whole convincingly provide that NWEPA Section 4(h)(11)(A) does not apply to rate making where that provision does not mention ratemaking, and other features of the statutory scheme buttress this conclusion. View "IDAHO CONSERVATION LEAGUE, ET AL V. BPA" on Justia Law

The National Park Service adopted a comprehensive plan for fire management in Yosemite National Park. In 2021 and 2022, the National Park Service approved two projects to thin vegetation in Yosemite in preparation for controlled burns. Those projects comported with the fire management plan except for minor alterations. The Earth Island Institute sued under the National Environmental Policy Act (“NEPA”), arguing that it was unlawful for the National Park Service to approve the projects without conducting a full review of their expected environmental impacts. The Institute then moved for a preliminary injunction to halt parts of the projects. The district court denied the motion for a preliminary injunction holding that the National Park Service had sufficiently evaluated the environmental impact of the projects.   The Ninth Circuit affirmed. Applying the arbitrary and capricious standard, the panel upheld the Agency’s determination that the projects fell under a categorical exclusion called the “minor-change exclusion” that exempted them from the requirement that the Agency prepare an environmental assessment or an environmental impact statement. The projects fell under that categorical exclusion because they were “changes or amendments” to the 2004 Fire Management Plan that would cause “no or only minimal environmental impact.” The panel held that the projects were consistent with the Fire Management Plan, contributing to its goals and using its methods, with only minor modifications. The panel acknowledged that even if a proposed project fits within a categorical exclusion, an agency may not rely on that exclusion if there are “extraordinary circumstances in which a normally excluded action may have a significant effect” on the environment. View "EARTH ISLAND INSTITUTE V. CICELY MULDOON, ET AL" on Justia Law

Three Indian tribes sought a ruling that the recognized fishing rights of the Lummi Nation (“the Lummi”) under the 1974 decree do not extend to certain areas. At issue here is a single line in the decree recognizing that “the usual and accustomed fishing places” in which the Lummi have fishing rights “include the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.” The question is whether the specific waters in dispute here fall within the Lummi’s historical fishing territory. The district court ruled against the Lummi, holding that the disputed waters are not part of their historical fishing waters under the 1974 decree.   The Ninth Circuit affirmed. Applying the two-step inquiry, the panel concluded that the district court correctly held that the Swinomish, Tulalip, and Upper Skagit carried their burden to warrant a ruling, under Paragraph 25(a)(1) of the 1974 Decree, that Judge Boldt’s “determination of Lummi’s usual and accustomed fishing grounds and stations” did not extend to the disputed waters at issue here. The panel held that it was fundamentally ambiguous whether Judge Boldt and the parties in 1974 would have understood the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Bellingham Bay, to include any waters east of Whidbey Island. At step two, the panel held that the Swinomish, Tulalip, and Upper Skagit met their burden to show that there was no evidence in the record before Judge Boldt of historical Lummi fishing in the disputed waters beyond what would be merely incidental or occasional. View "SWINOMISH INDIAN TRIBAL CMTY., ET AL V. LUMMI NATION" on Justia Law

The Center for Biological Diversity, Sierra Club, and Grand Canyon Wildlands Council (collectively, “CBD”) contend that the United States Forest Service (“USFS”) is liable under the Resource Conservation and Recovery Act (“RCRA”), for “contributing to the past or present . . . disposal” of lead ammunition in the Kaibab National Forest. The district court concluded that USFS is not liable as a contributor under RCRA and dismissed the complaint for failure to state a claim.   The Ninth Circuit affirmed the district court’s dismissal. The panel held that (a) the Forest Service’s choice not to regulate despite having the authority to do so does not manifest the type of actual, active control contemplated by RCRA; (b) although the Forest Service has the authority to further regulate Special Use permits, it has not done so, and RCRA does not impose a duty on the Forest Service to do so; and (c) mere ownership is insufficient to establish contributor liability under RCRA. The panel held that the district court did not abuse its discretion in denying CBD’s motion to amend its complaint to add RCRA claims against Arizona officials because CBD’s proposed amendment did not add any new claims or allegations against the Forest Service, and its claims against Arizona officials were barred by the Eleventh Amendment. Finally, the panel denied as moot CBD’s request that this case be reassigned to a different district judge. View "CENTER FOR BIOLOGICAL DIVERSITY, ET AL V. USFS, ET AL" on Justia Law

Pursuant to FAA regulations, Terra-Gen Development Company gave the FAA notice of its planned wind turbine development. The FAA conducted an aeronautical study of the project and issued a “no hazard” determination, finding that the turbines did not pose a hazard to air navigation. Backcountry Against Dumps, a non-profit organization, and two individuals who live near the development, petitioned for review of the “no hazard” determination.   The Ninth Circuit vacated the FAA’s denial of a petition for discretionary review of a plan to construct 72 wind turbines to generate renewable energy in Southern California, and remanded to the agency to consider the merits of the petition. The panel held that the FAA’s rejection of Backcountry’s petition for discretionary review, for the sole reason that Backcountry did not comment on the aeronautical study of the project, was arbitrary and capricious. The FAA’s reasonable interpretation of its own regulations specified that interested parties must receive personal notice of the comment period, and Backcountry fits within the plain meaning of an “interested party.” Therefore, the FAA failed to comply with its own regulations by not providing Backcountry with personal notice of the second comment period. In addition Backcountry was substantially prejudiced by the FAA’s procedural error. View "BACKCOUNTRY AGAINST DUMPS, ET AL V. FAA, ET AL" on Justia Law

The City and County of San Francisco (“San Francisco”) petitions for review of a final order of the U.S. Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its Oceanside combined sewer system and wastewater treatment facility (“wastewater system”). This NPDES permit, issued pursuant to the Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251–1387, allows San Francisco to discharge from its wastewater system into the Pacific Ocean. San Francisco contends that EPA acted arbitrarily and capriciously.   The Ninth Circuit denied San Francisco’s petition. The panel held that the EPA had authority under the CWA to include the two general narrative prohibitions. Noting that Supreme Court precedent, this Circuit’s prior cases, and prior Environmental Appeals Board decisions support the legality and confirm the enforceability of general narrative prohibitions in permits issued under the CWA, the panel held that the two narrative provisions were consistent with the CWA and its implementing regulations. The panel further held that the EPA was not required to follow the procedures set forth in 40 C.F.R. Section 122.44(d)(1)(i)-(vii) for deriving pollutant-specific effluent limitations in imposing the general narrative provisions and that the EPA’s decision to impose the general narrative provisions was rationally connected to evidence in the record indicating that a “backstop” to the more specific provisions would be useful in protecting beneficial uses. The panel next held that the EPA had authority under its Combined Sewer Overflow Control Policy to require San Francisco to update its long-term control plan for its combined sewer overflows. View "CITY & COUNTY OF SAN FRANCISCO V. USEPA" on Justia Law

The Forest Service developed the Project to replace trees infested with laminated root rot and bark beetles with disease-resistant ones. In May 2016, the Service contracted with T2, a private company, for logging to implement the decision. The Service issued a revised Environmental Assessment (“EA”) in July 2020 and a revised decision notice in December 2020. BMBP filed this action challenging the 2020 decision notice. The Service filed an administrative record (“AR”) in 2021.   The Ninth Circuit affirmed the district court’s summary judgment in favor of the U.S. Forest Service. The panel first addressed BMBP’s argument that the AR was incomplete. First, BMBP argued that deliberative materials were part of the “whole record” and that a privilege log was required if they were not included in the AR. The panel held that deliberative materials are generally not part of the AR absent impropriety or bad faith by the agency. Because deliberative materials are not part of the administrative record, to begin with, they are not required to be placed on a privilege log. The district court did not abuse its discretion by declining to order the production of a privilege log. Second, BMBP argued that all documents in the 2016 AR should be in the AR for this case. BMBP contended that the documents in the 2016 AR were necessary before the agency in the 2020 process because the Project was a continuation of the withdrawn one. The panel held that BMBP’s arguments failed to overcome the presumption of regularity. View "BMBP V. SHANE JEFFRIES, ET AL" on Justia Law