Articles Posted in US Court of Appeals for the Ninth Circuit

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The Migratory Bird Treaty Act (MBTA), 16 U.S.C. 4321 et seq., did not limit the United States government from issuing a permit to remove birds of one species for scientific purposes if its intent was principally to benefit another species. The Ninth Circuit affirmed the district court's grant of summary judgment for the Service in an action challenging a permit allowing the taking of the barred owl. The panel held that the MBTA imposed few substantive conditions itself and delegated to the Secretary of the Interior broad discretion to implement the Act, discretion the Secretary has used to promulgate the regulation at issue that has no text directly supporting Friends' proposed same-species theory. The panel held that the "used for scientific purposes" exception in Article II(A) of the Mexico Convention included taking birds to study whether their absence benefits another protected bird species; even if the canon of noscitur a sociis applied in this case, the panel did not believe that it supported plaintiff's same-species theory; and the Canada, Japan, and Russia Conventions did not support the same-species theory. View "Friends of Animals v. USFWS" on Justia Law

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The Ninth Circuit granted a petition for writ of mandamus in an action filed by environmental groups seeking to compel the EPA to act upon a rulemaking petition it granted eight years ago concerning dust-lead hazard and lead-paint standards. The panel held that the EPA had a duty to act under the Toxic Substances Control Act (TSCA) and the amendments to it from the Paint Hazard Act, as well as the Administrative Procedure Act (APA). Furthermore, the TRAC factors (Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984)) favor issuance of the writ in this case. The panel ordered that the EPA issue a proposed rule within ninety days of the date that this decision becomes final; EPA promulgate the final rule within one year after the promulgation of the proposed rule; and the deadlines for both the proposed rule and the final rule will only be modified if EPA presents new information showing modification is required. View "A Community Voice v. EPA" on Justia Law

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Plaintiffs filed suit challenging the NMFS's decision allowing a Hawaii-based swordfish fishery to increase its fishing efforts, which may result in the unintentional deaths of endangered sea turtles. Plaintiffs also challenged the FWS's decision to issue "special purpose" permit to the NMFS, which authorizes the fishery to incidentally kill migratory birds. The Ninth Circuit held that the FWS's grant of an incidental take permit to the NMFS in reliance on the special purpose permit provision in 50 C.F.R. 21.27 was arbitrary and capricious because the FWS's interpretation of section 21.27 did not conform to either the Migratory Bird Treaty Act's (MBTA) conservation intent or the plain language of the regulation. Therefore, the panel reversed the district court's grant of summary judgment affirming the FWS's decision to issue the permit. The panel also held that NMFS's 2012 BiOp's on jeopardy finding as to the loggerhead sea turtles was arbitrary and capricious because the scientific data suggested that the loggerhead population would significantly decline, and the agency failed to sufficiently explain the discrepancy in its opinion and the record evidence. Therefore, the panel reversed the district court's grant of summary judgment upholding this portion of the BiOp. The panel otherwise affirmed the district court's grant of summary judgment to defendants. View "Turtle Island Restoration Network v. DOC" on Justia Law

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The Ninth Circuit affirmed the district court's decision rejecting challenges to the Forest Service's determination that EFR had a valid existing right to operate a uranium mine on land within a withdrawal area of public lands around Grand Canyon National Park that the Secretary of the Interior withdrew from new mining claims. The panel held that the Mineral Report was a major federal action under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and that the district court correctly held that Center for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013), not Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006), governed this case; that action was complete when the plan was approved; resumed operation of Canyon Mine did not require any additional government action; and thus the EIS prepared in 1988 satisfied NEPA. The panel also held that the Mineral Report approved an "undertaking" under the National Historic Preservation Act of 1966 (NHPA), 54 U.S.C. 306108; the Mineral Report did not permit, license, or approve resumed operations at Canyon Mine; and the original approval was the only "undertaking" requiring consultation under the NHPA. Finally, the environmental groups did not have prudential standing to challenge the Mineral Report. View "Havasupai Tribe v. Provencio" on Justia Law

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The unconstitutional legislative veto embedded in section 204(c)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1714, is severable from the large-tract withdrawal authority delegated to the Secretary in that same subsection. Invalidating the legislative veto provision does not affect the Secretary's withdrawal authority. The Ninth Circuit affirmed the district court's decision rejecting challenges to the decision of the Secretary to withdraw from new uranium mining claims, up to twenty years, over one million acres of land near Grand Canyon National Park. In this case, the panel held that the environmental impact statement (EIS) did take existing legal regimes into account but reasonably concluded that they were inadequate to meet the purposes of the withdrawal; the Establishment Clause challenge failed under Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); and the panel rejected challenges under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the National Forest Management Act, 16 U.S.C. 1604(e). View "National Mining Ass'n v. Zinke" on Justia Law

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The broad waiver of sovereign immunity found in section 702 of the Administrative Procedure Act (APA) waived sovereign immunity for all non-monetary claims, and section 704 of the APA's final agency action requirement constrained only actions brought under the APA, 5 U.S.C. 702, 704. The Navajo Nation filed suit challenging Interior's published guidelines clarifying how it would make surplus and shortage determinations for delivery to Western states of the waters of the Colorado River. The panel affirmed the district court's dismissal of the Nation's claims under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., based on lack of standing where the challenged guidelines did not present a reasonable probability of threat to either the Nation's adjudicated water rights or its practical water needs. The panel also held that the Nation's breach of trust claim sought relief other than money damages, and the waiver of sovereign immunity in section 702 applied squarely to the claim. Therefore, the panel reversed and remanded as to this issue. Finally, the district court acted within its discretion in refusing post-judgment leave to amend. View "Navajo Nation v. Department of the Interior" on Justia Law

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The Ninth Circuit reversed the district court's grant of summary judgment to PG&E and denial of summary judgment to EcoRights with respect to a stormwater pathway. The panel held that the district court erred in applying the antiduplication provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 1006(a), with respect to the stormwater pathway; the absence of a Clean Water Act (CWA), 33 U.S.C. 1251 et seq., permit requirement did not trigger RCRA's anti-duplication provision; and PG&E failed to identify any legal requirements under municipal permits applicable to it and inconsistent with EcoRights' requested RCRA relief. The panel remanded for the district court to consider EcoRights' arguments with respect to the stormwater pathway that the relevant wastes were "solid wastes" and that PG&E's actions presented an imminent and substantial endangerment to health or the environment under RCRA. Finally, the panel affirmed the district court's grant of partial summary judgment as to the tire-tracking pathway. View "Ecological Rights Foundation v. PG&E" on Justia Law

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TDY filed a complaint under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. 9613(f)(1), seeking contribution from the government for its equitable share of the cleanup costs. The Ninth Circuit reversed the district court's grant of judgment in favor of the United States, which allocated 100 percent of past and future CERCLA costs to TDY. The panel agreed with the district court that some deviation from the allocation affirmed in Shell Oil Co., 294 F.3d at 1049, and Cadillac Fairview, 299 F.3d at 1022–23, was warranted by distinguishing facts. However, the panel held that encumbering a military contractor with 100 percent of CERCLA cleanup costs that were largely incurred during war-effort production was a 180 degree departure from the panel's prior case law, and the out-of-circuit authority that the district court relied upon did not warrant such a sharp deviation. In this case, the district court did not adequately consider the parties' lengthy course of dealings and the government's requirement that TDY use two of the hazardous chemicals at issue. Accordingly, the court remanded for additional proceedings. View "TDY Holdings v. United States" on Justia Law

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On remand from the Supreme Court, the Ninth Circuit held that the federal government properly exercised its authority to regulate hovercraft use on the rivers within conservation system units in Alaska. The panel held that section 103(c) of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. 3101 et seq., does not limit the Park Service from applying the hovercraft ban on the Nation River in Yukon-Charley because, under the panel's Katie John precedent, Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995), the United States has an implied reservation of water rights, rendering the river public lands. Accordingly, the panel affirmed the district court's grant of summary judgment to defendants. View "Sturgeon v. Frost" on Justia Law

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Wild Wilderness, a group representing non-motorized users, filed suit challenging the Forest Service's approval of the building of Kapka Sno-Park, alleging that the Forest Service had violated both the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA). The panel held that the case was neither moot nor lacking redressability; the Forest Service did not violate the NFMA because Kapka Sno-Park was not inconsistent with the Deschutes Forest Plan; and the Forest Service did not violate NEPA because the agency complied with the relevant regulations, completed an environmental assessment, and issued a finding of no significant impact. The panel rejected Wild Wilderness's remaining NEPA challenges. View "Wild Wilderness v. Allen" on Justia Law