Articles Posted in U.S. Court of Appeals for the Ninth Circuit

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Petitioners sought review of the EPA's conditional registration of the pesticide NSPW-L30SS, an antimicrobial materials preservative that uses nanosilver as its active ingredient. The Ninth Circuit held that the EPA failed to support the public-interest finding with substantial evidence under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136a(c)(7)(C). The panel explained that the EPA's finding that current users of conventional-silver pesticides will switch to NSPW and/or that NSPW will not be incorporated into new products relied on unsubstantiated assumptions. Accordingly, the panel vacated the EPA's conditional registration of NSPW. View "NRDC V. USEPA" on Justia Law

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Plaintiffs filed suit alleging that the 2008 Tongass Forest Plan unlawfully damages the habitat of the indigenous Alexander Archipelago wolf, and that the Forest Service violated the National Forest Management Act (NFMA) by approving either the Big Thorne project or the 2008 Tongass Forest Plan (Forest Plan) under which Big Thorne was authorized. The Ninth Circuit held that plaintiffs' declarations were sufficient to show that actions approved under the Forest Plan would cause particularized injury to them; the panel was not aware of any authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that was neither endangered nor threatened; the Forest Service met its legal obligations when it implemented the Forest plan and its discussion of viability was not arbitrary nor capricious; and the Big Thorne Project was consistent with that plan. View "In re Big Thorne Project" on Justia Law

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Plaintiff filed suit challenging the BLM's approval of a right-of-way on federal lands in Nevada for the construction of an industrial solar project known as Silver State South. The Ninth Circuit affirmed the district court's grant of summary judgment to defendants and its conclusion that the Biological Opinion (BiOp) analyzing the effect of Silver State South on the desert tortoise fully complied with the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. 706. The panel held that the BiOp's "no jeopardy" determination was neither arbitrary nor capricious; the BiOp's determination that Silver State South was "not likely to adversely affect the critical habitat of the desert tortoise," which permitted the FWS to forego an adverse modification analysis, was neither arbitrary nor capricious; the BiOp's failure to address the FWS comments to the SEIS was not arbitrary or capricious; the BiOp's consideration of Silver State South's edge effects was not arbitrary or capricious; the BiOp does not rely on an impermissibly vague "new information" reinitiation trigger; and thus the BLM permissibly relied upon the BiOp in approving of the right-of-way for Silver State South. View "Defenders of Wildlife v. Zinke" on Justia Law

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Alliance filed suit under the National Forest Management Act (NFMA), the Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA), seeking to enjoin the Forest Service from constructing new roads in the Kootenai National Forest. The Ninth Circuit held that the 4.7 miles of roads at issue will not violate the Kootenai National Forest Plan because they will be blocked to prevent motorized access upon completion of the project; it was not arbitrary and capricious for the Forest Service to conclude that roads closed to motorized access by berms or barriers do not count toward linear miles of total roads under Standard II(B) of the Access Amendments; and because the Forest Service's interpretation of its own Forest Plan was reasonable, Alliance could not prevail on its NFMA, ESA, and NEPA claims. Accordingly, the panel affirmed the district court's judgment in favor of defendants. View "Alliance for the Wild Rockies v. Bradford" on Justia Law

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The court affirmed the FWS's finding that listing the whitebark pine as a threatened or endangered species was "warranted but precluded." Wildwest asserted that FWS's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. Determining that the case was not moot, the court concluded that FWS was not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS's decision contained a sufficient “description and evaluation of the reasons and data on which the finding was based” to satisfy the Endangered Species Act (ESA), 16 U.S.C. 1531-1544. View "Wildwest Institute v. Kurth" on Justia Law

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SCAP petitioned for review of an objection letter sent by the EPA regarding draft permits for water reclamation plants in El Monte and Pomona, California. The court concluded that neither 33 U.S.C. 1369(b)(1)(E) or (F) provides the court subject matter jurisdiction to review the Objection Letter. The court explained that even when a state assumes primary responsibility for issuing National Pollutant Discharge Elimination System (NPDES) permits, EPA retains supervisory authority over state permitting programs under 33 U.S.C. 1342(d). In this case, the L.A. Board chose to revise the Draft Permits and retain control of the NPDES permitting process for the Plants, and the permits were issued through the State of California, not EPA. The court concluded that the appropriate avenue for SCAP to seek redress was through the State's review process. Accordingly, the court dismissed the petition for review. View "Southern California Alliance of Publicly Owned Treatment Works v. EPA" on Justia Law

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This extensive litigation arose when Arizona clashed with the EPA over its State Implementation Plan (SIP) required under a new regulatory scheme codified in Section 169A of the Clean Air Act (CAA), 42 U.S.C. 7491(b). The scheme required each state with emissions impacting protected federal lands to create a SIP describing how the state intended to make reasonable progress toward the national goal to improve air visibility in federal parks and forests. The EPA determined that Arizona could do better in improving visibility even if the SIP listed proposals to manage and reduce emissions from various industrial sources operated within the state. Arizona and several private companies (petitioners) subsequently objected to the EPA's most recent Federal Implementation Plan (FIP), which petitioners claim constituted invalid agency action. The court held that several of petitioners' objections to the FIP were not properly before it because they were not presented to the EPA during the notice-and-comment period. In regard to the remaining objections that were ripe for review regarding regulation of the cement kiln and copper smelters at issue, the court concluded that the EPA's emission-control measures were not arbitrary or capricious and thus constituted valid agency rulemaking. View "Arizona ex rel. Darwin v. EPA" on Justia Law

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Petitioners sought review of the EPA's federal implementation plan (FIP) under the Clean Air Act (CAA), 42 U.S.C. 7401, for the Navajo Generating Station in Arizona. The FIP was promulgated under the EPA's Tribal Authority Rule (TAR) that governs CAA requirements on tribal lands. The court concluded that the federal government's partial ownership of the Station does not eliminate any deference to the EPA's interpretation of the CAA and its implementing regulations; the EPA reasonably interpreted the TAR and the Regional Haze Regulations to conclude that the emission reductions deadline in 40 C.F.R. 51.308(e)(2)(iii) does not apply to FIPs for regional haze that are promulgated in place of tribal implementation plans (TIPs); the court deferred to the EPA's determination that the FIP alternative was "better than BART" for nitrous oxide emissions; and the EPA's decision not to determine best available retrofit technology (BART) for particulate matter was a reasonable exercise of the EPA's discretion under the TAR. Accordingly, the court denied the petitions for review. View "Yazzie v. USEPA" on Justia Law

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The Tribe petitioned for review of the EPA's federal implementation plan (FIP) under the Clean Air Act (CAA), 42 U.S.C. 7401, for the Navajo Generating Station in Arizona. The FIP was promulgated under the EPA's Tribal Authority Rule that governs CAA requirements on tribal lands. The Tribe claimed that it was not adequately consulted about its interests before the plan was promulgated and objected to a proposed closure of the Station in 2044. The court concluded that no authority allowed it to treat this as a duty to consult, stemming from the general trust relationship with the Indian tribes. In this case, the record showed that the EPA did, in fact, consult with the Hopi Tribe throughout the rulemaking process. Furthermore, while the EPA did not participate in the Technical Working Group (TWG) negotiations, the DOI did. The court also concluded that the record belies the Tribe's contention that the EPA failed to analyze each of the five best available retrofit technology (BART) factors. Because the TWG proposal was an alternative to BART, the court concluded that there was no error in the EPA not analyzing the BART factors under the TWG alternative. Accordingly, the court denied the petition for review. View "The Hopi Tribe v. USEPA" on Justia Law

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In this interlocutory appeal, the water agencies challenged the district court's grant of partial summary judgment for the Tribe and the United States. The judgment declared that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe's reservation in California's arid Coachella Valley. The court concluded that in the Winters v. United States doctrine, federal reserved water rights are directly applicable to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams; the Winters doctrine does not distinguish between surface water and groundwater; rather, its limits derive only from the government's intent in withdrawing land for a public purpose and the location of the water in relation to the reservation created; because the United States intended to reserve water when it established a home for the Tribe, the court held that the district court did not err in determining that the government reserved appurtenant water sources—including groundwater—when it created the Tribe's reservation in the Coachella Valley; and the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer. The court held that state water rights were preempted by federal reserved rights; held that the fact that the Tribe did not historically access groundwater does not destroy its right to groundwater now; and held that state water entitlements do not affect the court's analysis with respect to the creation of the Tribe's federally reserved water right. Accordingly, the court affirmed the judgment. View "Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District" on Justia Law