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

A company seeking to register a pesticide must obtain approval from the Environmental Protection Agency (EPA), which in turn must comply with the Endangered Species Act (ESA), and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In 2010, Dow submitted an application for sulfoxaflor. In January 2013, EPA announced and invited public comment for a proposed conditional registration at lower application rates with some mitigating measures. Less than seven months later, EPA decided to unconditionally register sulfoxaflor.   The Ninth Circuit held that EPA violated the ESA’s mandate that it determine whether the pesticide may affect endangered or threatened species or their habitat, and (if so) consult other wildlife agencies to consider its impact on endangered species. Although EPA admitted it did not comply with the ESA, EPA alleged it lacked the resources to do so. The panel further held that EPA’s repeated violations of the ESA undermined the political structure. The panel held that EPA failed to meet FIFRA’s notice and comment requirement because it did not allow the public to comment on Dow’s requested amendments to the 2016 registration to reinstate expanded usage of sulfoxaflor. EPA cannot rely upon Dow’s original application for sulfoxaflor to support the registration amendments. Because Dow requested, and EPA approved, “new uses” for sulfoxaflor, EPA should have solicited public comments. The panel, however, did not vacate the agency’s decision because a vacatur might end up harming the environment more and disrupting the agricultural industry. The panel instead remanded it to EPA for further proceedings. View "CENTER FOR FOOD SAFETY, ET AL V. MICHAEL REGAN, ET AL" on Justia Law

the California Department of Toxic Substances Control and the Toxic Substances Control Account (“DTSC”) brought suit under the Comprehensive Environmental Response, Compensation, and Liability Act and state law relating to the remediation of hazardous materials alleged to be present at a site in Elmira, California. In 2013, a certificate of cancellation had been filed with the Delaware Secretary of State, cancelling the legal existence of defendant Collins & Aikman Products. The Delaware Court of Chancery granted DTSC’s petition to appoint a receiver empowered to defend claims made against Collins & Aikman. The receiver declined to file an answer to DTSC’s complaint, and the district court clerk entered default under Federal Rule of Civil Procedure 55(a). DTSC later moved for a default judgment.   The Ninth Circuit reversed the district court’s order denying insurers’ motions to intervene to defend their defunct insured in an environmental tort action, dismissed the insurers' appeal of the denial of their motions to set aside default, and remanded. Here, there was no dispute that the insurers timely sought to intervene in. Thus, whether the insureds could intervene as of right turned on whether they had an “interest” under Rule 24(a)(2). The panel held that, under Donaldson v. United States and Wilderness Soc’y v. U.S. Forest Serv,  the word “interest” must be read in a specifically legal sense, to mean a right or other advantage that the law gives one person as against another person, rather than read more broadly to refer to anything that a person wants, whether or not the law protects that desire. View "CALIFORNIA DEPARTMENT OF TOXIC, ET AL V. CENTURY INDEMNITY COMPANY, ET AL" on Justia Law

After the Oregon district court dismissed their initial complaint alleging claims concerning the Plan, two of the three plaintiffs in this action (Friends of the Wild Swan and Alliance for the Wild Rockies) elected not to amend to fix the deficiencies identified in the court’s order. Instead, Plaintiffs appealed, and after losing on appeal, they sought to amend their complaint. The district court denied their motion to amend and found no grounds to reopen the judgment. Rather than appealing that determination, Plaintiffs initiated a new action in the District of Montana raising a challenge to the legality of the Plan. The Montana district court declined to dismiss on the basis of claim preclusion, but granted summary judgment in favor of the Service on the merits of Plaintiffs’ challenges.   The Ninth Circuit filed (1) an order amending the opinion filed on September 28, 2022; and (2) an amended opinion affirming the district court’s judgment in favor of the U.S. Fish and Wildlife Service based on claim preclusion in an action brought by plaintiff environmental groups, challenging the Service’s 2015 Bull Trout Recovery Plan (the “Plan”) under the citizen-suit provision of the Endangered Species Act (“ESA”). The court explained that here, the Service offered claim preclusion as an alternate basis for affirming the district court’s judgment. The panel held that because the Service raised claim preclusion before the district court and in its briefing on appeal, the issue was properly before the court. The panel held that Plaintiffs’ challenge to the Plan was precluded because the Oregon litigation was a final judgment on the merits of their claims. View "SAVE THE BULL TROUT, ET AL V. MARTHA WILLIAMS, ET AL" on Justia Law

The Ninth Circuit reversed the district court’s summary judgment in favor of the Bureau of Reclamation and the Santa Maria Water District (collectively, the “Agencies”) in an action brought by San Luis Obispo Coastkeeper and Los Padres ForestWatch (“Plaintiffs”), claiming that the Agencies’ operation of Twitchell Dam interfered with Southern California Steelhead’s reproductive migration, which constituted an unlawful take in violation of the Endangered Species Act (“ESA”).   The panel held that under PL 774, the Agencies had discretion to release water from Twitchell Dam to avoid take of endangered Southern California Steelhead. The panel held that PL 774 expressly authorized Twitchell Dam to be operated for “other purposes” beyond the enumerated purposes. As a secondary priority, PL 774 also required the Agencies operate the dam substantially in accordance with the Secretary’s Report. The statutory requirement of substantial compliance—rather than strict compliance—with the Secretary’s Report explicitly grants discretion to the Agencies to adjust the dam’s flow rate.   The panel held that this interpretation is buttressed by the principles of statutory construction. Because PL 774 and the ESA can easily be read to work in harmony, it was the panel’s duty to do so. Here, there is no clear Congressional intent to preclude the dam from being operated to avoid take of Southern California Steelhead. There is no implied conflict between PL 774 and the ESA. Twitchell Dam can readily be operated to provide modest releases at certain times of the year and during certain water years, while still satisfying the dam’s primary purpose of conserving water for consumptive purposes. View "SAN LUIS OBISPO COASTKEEPER, ET AL V. SANTA MARIA VALLEY WATER CONSE, ET AL" on Justia Law

Plaintiffs Save the Bull Trout, Friends of the Wild Swan, and Alliance for the Wild Rockies challenge the United States Fish and Wildlife Service’s (“Service”) 2015 Bull Trout Recovery Plan under the citizen-suit provision of the Endangered Species Act (“ESA”). It is not Plaintiffs’ first time bringing such a challenge. After the Oregon district court dismissed their initial complaint alleging claims concerning the Plan, Plaintiffs elected not to amend to fix the deficiencies identified in the court’s order. Instead, Plaintiffs appealed, and only after losing on appeal did they pursue amending their complaint. The Oregon district court denied their motion to amend, finding no grounds for reopening the judgment.   The Ninth Circuit affirmed the district court’s judgment in favor of the U.S. Fish and Wildlife Service based on claim preclusion in an action brought by plaintiff environmental groups, challenging the Service’s 2015 Bull Trout Recovery Plan under the citizen-suit provision of the ESA. The panel held that Friends of the Wild Swan and Alliance for the Wild Rockies had standing to challenge the Plan. Plaintiffs asserted a procedural injury. Their member declarations established ongoing aesthetic, recreational, and conservation interests in bull trout. The procedures outlined in Section 1533(f) of the ESA served to protect these interests by requiring the implementation of a bull trout recovery plan. Because Plaintiffs established a procedural injury, they had standing as long as there was some possibility that the requested relief—revision of the Plan— would redress their alleged harms. The panel held that this benchmark was clearly met. View "SAVE THE BULL TROUT, ET AL V. MARTHA WILLIAMS, ET AL" on Justia Law

While he was consulting on an environmental project for the U.S. Army Reserve Command, Plaintiff believed he was required to prepare an environmental assessment in a manner that violated federal law. Plaintiff was terminated after reporting the suspected illegality to the client and his supervisor at SpecPro. Plaintiff brought statutory and common law claims of retaliation and wrongful termination in a California state court action that was removed to federal court. Plaintiff alleged his employment was terminated in violation of the California Whistleblower Protection Act, Cal. Labor Code Section 1102.5(b), (c).   The Ninth Circuit affirmed in part and reversed in part the district court’s summary judgment in favor of Plaintiff’s former employer, SpecPro Professional Services, LLC, on Plaintiff’s retaliation and wrongful termination claims. The panel first addressed the district court’s determination that Olaintiff’s disclosures to his supervisor were not actionable because the supervisor was not “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” Second, the panel held that several state court appellate courts have held that disclosures to wrongdoers are protected under section 1102.5(b). The panel reversed the district court’s summary judgment order on section 1102.5(b) retaliation claim. Because his claim of wrongful termination in violation of public policy was derivative of his retaliation claim, the panel also reversed the grant of summary judgment on that claim. View "AARON KILLGORE V. SPECPRO PROFESSIONAL SERVICES" on Justia Law

Various parties appealed the dismissal of their action challenging Reclamation’s current operating procedures, which were adopted in consultation with other relevant federal agencies to maintain specific lake levels and instream flows to comply with the Endangered Species Act (“ESA”) and to safeguard the federal reserved water and fishing rights of the Hoopa Valley and Klamath Tribes (the “Tribes”). The Tribes intervened as of right but then moved to dismiss the action on the ground that they were required parties who could not be joined due to their tribal sovereign immunity   The Ninth Circuit affirmed the district court’s dismissal, due to a lack of a required party under Fed. R. Civ. P. 19. The panel held that the district court properly recognized that a declaration that Reclamation’s operating procedures were unlawful would imperil the Tribes’ reserved water and fishing rights. The panel affirmed the district court’s conclusion that the Tribes were required parties who could not be joined due to sovereign immunity, and that in equity and good conscience, the action should be dismissed.   The panel disagreed with Plaintiffs’ argument that the Tribes were not required parties to this suit because the Tribes’ interests were adequately represented by Reclamation. Because Reclamation is not an adequate representative of the Tribes, the Tribes are required parties under Rule 19. The court explained that The McCarran Amendment waives the United States’ sovereign immunity in certain suits. 43 U.S.C. Section 666(a). The panel held that even if the McCarran Amendment’s waiver of sovereign immunity extends to tribes as parties, the Amendment does not waive sovereign immunity in every case that implicates water rights. View "KLAMATH IRRIGATION DISTRICT, ET AL V. U.S. BUREAU OF RECLAMATION, ET AL" on Justia Law

Tulelake Irrigation District and associated agricultural groups (collectively “TID”) alleged that, in imposing restrictions on the agricultural uses of lease land in the Tule Lake and Lower Klamath Refuges in the Klamath Basin National Wildlife Refuge Complex in southern Oregon and northern California, the Service violated environmental laws.   On appeal, TID argued that the Service violated the Kuchel Act of 1964 and the National Wildlife Refuge System Improvement Act as amended by the Refuge Improvement Act (“Refuge Act”). TID argued that in approving the combined Environmental Impact Statement and Comprehensive Conservation Plan (“EIS/CCP”) for five of the six wildlife refuges in the Klamath Refuge Complex, the Service misconstrued the Kuchel Act to require the Service to regulate uses of leased agricultural land in the two refuges to ensure that the uses were “consistent” with “proper wildfowl management.” 16 U.S.C. Section 695n.   The Ninth Circuit rejected TID’s interpretation of Section 695n. The court held that with respect to the textual argument made by TID, the language of Section 695n, whether considered in isolation or in the context of the rest of the Kuchel Act, was unambiguous. The court held that it did not, therefore, need to proceed to step two of the Chevron analysis. The court concluded that the Kuchel Act required the Service to regulate the pattern of lease land agriculture in the refuges to ensure consistency with proper waterfowl management. The court further held that the regulation in the EIS/CCP of agricultural uses of lease land was a proper exercise of the Service’s authority under the Kuchel and Refuge Acts. View "TULELAKE IRRIGATION DISTRICT V. USFWS" on Justia Law

The United States Fish and Wildlife Service (“Service”) issued a Record of Decision (“ROD”) adopting a combined Environmental Impact Statement and Comprehensive Conservation Plan (“EIS/CCP”) for five of the six refuges in the Klamath Basin National Wildlife Refuge Complex (“Klamath Refuge Complex” or “Complex”) in southern Oregon and northern California. challenges to the Service’s action.   The Audubon Society of Portland (“ASP”) brought suit against the Service in the district court, arguing that the EIS/CCP violates the Kuchel Act of 1964 (“Kuchel Act”), the National Wildlife Refuge System Improvement Act as amended by the Refuge Improvement Act (“Refuge Act”), the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Clean Water Act (“CWA”) with respect to the Tule Lake and Lower Klamath Refuges in the Complex. The district court granted summary judgment to the Service.   The Ninth Circuit affirmed the district court’s summary with respect to the Tule Lake and Lower Klamath Refuges in the Klamath Basin National Wildlife Refuge Complex violated various laws. The court explained that two key statutes: the Kuchel Act of 1964, and the National Wildlife Refuge System Improvement Act, as amended by the Refuge Improvement Act, govern the Service’s management.   The court concluded that to the degree the present pattern of agricultural leasing in the Tule Lake and Lower Klamath Refuges was consistent with proper waterfowl management in those refuges, the Kuchel and Refuge Acts directed the Service to continue that present pattern of leasing. In reviewing the EIS/CCP, the panel recognized constraints on the Service and deferred to reasoned explanations provided by the Service in support of its decisions. View "AUDUBON SOCIETY OF PORTLAND V. DEB HAALAND" on Justia Law

The Center for Biological Diversity (“CBD”) challenged the Conservation Plan’s pest management approach for the Lower Klamath and Tule Lake Refuges. Western Watersheds challenged the Plan’s limited allowance of livestock grazing on portions of Clear Lake Refuge. Appellants brought their challenges under the National Environmental Policy Act (“NEPA”), the National Wildlife Refuge System Administration Act of 1966, and the Kuchel Act.   The Ninth Circuit considered, and rejected, CBD’s three challenges to the Conservation Plan. First, CBD argued that FWS failed to consider reduced-pesticide alternatives for Lower Klamath and Tule Lake Refuges. The panel concluded that CBD’s arguments were unavailing. FWS adequately explained that some amount of pesticide use was necessary on the Refuges to ensure sufficient crop production, on which Refuge waterfowl now depend. Also, FWS could conclude that reduced-pesticide alternatives would not have been reasonable given the uses and purposes of the Refuges. Thus, NEPA did not obligate FWS to consider reduced-pesticide alternatives.   The court concluded that FWS did not act arbitrarily, capriciously, or contrary to law by continuing to use the PUP process to evaluate potential pesticide applications on the Refuges, and by allowing for pesticide use as a last resort. View "AUDUBON SOCIETY OF PORTLAND V. DEB HAALAND" on Justia Law