2006 Ninth Circuit environmental review.

AuthorStasch, A. Danyel


California Sportsfishing Protection Alliance v. Federal Energy Regulatory Commission, 472 F.3d 593 (9th Cir. 2006)

Forest Guardians v. Johanns, 450 F.3d 455 (9th Cir. 2006)

Kern CountyFarm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006)

The Lands Council v. Martin, 479 F.3d 636 (9th Cir. 2007)

Northwest Environmental Defense Center v. Bonneville Power Administration, 477 F.3d 668 (9th Cir. 2007)

Oregon Natural Desert Association v. United States Forest Service, 465 F.3d 977 (9th Cir. 2006)

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006)

Southeast Alaska Conservation Council v. United States Army Corps of Engineers, 472 F.3d 1097 (9th Cir. 2006)

Center for Biological Diversity v. Kempthorne, 466 F.3d 1098 (9th Cir. 2006)


Oregon Trollers Association v. Gutierrez, 452 F.3d 1104 (9th Cir. 2006)

Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir. 2006)

Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006)

Center for Biological Diversity v. United States Fish and Wildlife Service, 450 F.3d 930 (9th Cir. 2006)

Safe Air For Everyone v. United States Environmental Protection Agency, 475 F.3d 1096 (9th Cir. 2007)

Nuclear Information and Resource Service v. Nuclear Regulatory Commission, 457 F.3d 941 (9th Cir. 2006)

Central Delta Water Agency v. Bureau of Reclamation, 452 F.3d 1021 (9th Cir. 2006)


Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969 (9th Cir. 2006)

Western Watersheds Project v. Matejko, 468 F.3d 1099 (9th Cir. 2006)

Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir. 2006)

'Ilio 'ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006)

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006)

Sarei v. Rio Tinto, PLC., 456 F.3d 1069 (9th Cir. 2006)


Oregon Natural Resources Council v. Allen, 476 F.3d 1031 (9th Cir. 2007)

Northwest Ecosystem Alliance v. United States Fish and Wildlife Service, 475 F.3d 1136 (9th Cir. 2007)

Oregon Natural Resources Council v. United States Bureau of Land Management, 470 F.3d 818 (9th Cir. 2006)

Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2006)

Nuclear Information and Resource Service v. United States Department of Transportation, Research and Special Programs Administration, 457 F.3d 956 (9th Cir. 2006)

GreatBasin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006)

Defenders of Wildlife Center for Biological Diversity v. United States Environmental Protection Agency, 450 F.3d 394 (9th Cir. 2006)

Northern California River Watch v. City of Healdsburg, 457 F.3d 1023 (9th Cir. 2006)


Earth Island Institute v. United States Forest Service, 442 F.3d 1147 (9th Cir. 2006)

Fitzgerald Living Trust v. United States, 460 F.3d 1259 (9th Cir. 2006)

Hale v. Norton, 476 F.3d 694 (9th Cir. 2007)

Northwest Environmental Advocates v. National Marine Fisheries Service, 460 F.3d 1125 (9th Cir. 2006)

Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549 (9th Cir. 2006)

Wildwest Institute v. Bull, 472 F.3d 587 (9th Cir. 2006)

2006 NINTH CIRCUIT ENVIRONMENTAL REVIEW REVIEW EDITOR'S NOTE CASE SUMMARIES I. ENVIRONMENTAL QUALITY A. Comprehensive Environmental Response Compensation and Liability Act B. National Environmental Policy Act C. Clean Air Act D. Clean Water Act II. NATURAL RESOURCES A. Endangered Species Act B. Alaska National Interest and Land Conservation Act C. Indian Law D. Magnusun-Stegens Fisheries Conservation Act E. Federal Lands Policy Management Act F. Forests G. Water H. United Nations Convention on the Law of the Sea I. Atomic Energy J. Grazing III. LITIGATION ISSUES A. Subject Matter Jurisdiction under the Administrative Procedure Act CHAPTERS The Quick and the Dead: Earth Island v. Forest Service and the Risk of Forest Service Financial Bias in Post-Fire Logging Adjudications. Austin D. Saylor Questionable Authority: A Recent CEQ Guidance Memorandum John C. Grothaus 2006 NINTH CIRCUIT INDEX OF CASES AND STATUTES NINTH CIRCUIT REVIEW EDITOR'S NOTE

I am thrilled to present the 2006 Ninth Circuit Environmental Review. This review begins with summaries of forty of the Ninth Circuit Court of Appeals' environmental and natural resource decisions handed down between March 2006 and March 2007. Two student Chapters, each discussing recent environmental cases from the Ninth Circuit, follow the summaries.

This compilation of case summaries represents the work of five members of Environmental Law. These students were selected to serve on the Ninth Circuit Review based on their strong writing ability. In addition to reviewing and writing summaries of emerging Ninth Circuit cases, the Ninth Circuit team also carried out traditional source checking duties and each wrote a student Chapter examining at least one recent Ninth Circuit environmental or natural resources case. Two of these Chapters appear in this issue.

The first student Chapter, by Austin Saylor, explores the possibility that the United States Forest Service's financial stake in post-fire salvage logging may, under a due process analysis, disqualify the agency from making decisions about such timber harvesting. Mr. Saylor's Chapter expands on the analysis offered by Judge Noonan in his concurring opinions in two Ninth Circuit cases, both entitled Earth Island Institute v. Forest Service.

John Grothaus authored the second student Chapter, which scrutinizes the deference due to a 2005 Counsel on Environmental Quality guidance memorandum advising minimal consideration of prior actions in analyzing--pursuant to the National Environmental Policy Act--whether an agency's proposed environmentally significant action will have cumulative impacts. Mr. Grothaus' Chapter assesses the memorandum in light of two 2006 Ninth Circuit opinions, Great Basin Mine Watch v. Hankins and Northwest Environmental Advocates v. National Marine Fisheries that appear to disagree with the memorandum.

This year Environmental Law introduced an on-line version of its journal, which prominently features the Ninth Circuit Review. The online journal facilitates timely circulation of case summaries, offers a convenient summary search function, and even provides a forum for commenting and discussing the summarized Ninth Circuit cases. This move to an on-line Ninth Circuit Review resulted in substantial additional work for the Ninth Circuit Review team and they showed remarkable flexibility and dedication throughout the entire transition. I would like to extend my most sincere thanks to the Ninth Circuit Review team of 2006.

Our hope is that this printed review, and now our regularly updated online review, will facilitate the research of students and practitioners who seek to remain informed about developments in Ninth Circuit environmental and natural resources jurisprudence.





  2. Comprehensive Environmental Response Compensation and Liability Act

    1. Pakootas v. Teck Cominco Metals, 452 F.3d 1066 (9th Cir. 2006).

    Teck Cominco Metals, Ltd. (Teck), a Canadian company, sought interlocutory review of a district court's denial of its motion to dismiss an action brought by individual members of the Confederated Tribes of the Colville Reservation (Pakootas), in which the State of Washington intervened. Pakootas sought, under the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (1) a declaration that Teck violated a 2003 Environmental Protection Agency (EPA) order requiring Teck to assess a contaminated site on the Columbia River in Washington (Site). Pakootas had also sought penalties for non-compliance as well as recovery of costs and fees. The Ninth Circuit upheld the district court's denial of Teck's motion to dismiss for failure to state a claim, rejecting Teck's arguments that its Canadian smelter's discharge of waste into the Columbia did not cause it to become liable for arranging for the disposal of hazardous substances under CERCLA as well as Teck's argument that this case involved an extraterritorial application of CERCLA.

    In response to a 1999 petition by the Colville Tribes under CERCLA [section] 9605, EPA assessed the Site, discovered heavy-metal contamination .and the presence of slag, a smelting byproduct, and concluded in 2003 that the Site warranted listing on the National Priorities List (NPL). (2) Teck owns and operates a smelter in Trail, British Columbia, which from 1906 to 1995 discharged up to 145,000 tons of slag annually into the Columbia River, some of which accumulated at the Site. In December 2003, EPA ordered Teck, under CERCLA, to conduct a remedial investigation/feasibility study (RI/FS) (3) for the Site. As of the date of the appellate decision's filing, Teck had not obeyed this order (Order), (4) and the EPA had not attempted to enforce it.

    In response to Pakootas's citizen suit, Teck filed a motion to dismiss, arguing the district court lacked personal and subject matter jurisdiction because the Order was based on activities by a Canadian entity with no United States presence and because the activities took place in Canada. Teck also argued Pakootas failed to state a valid claim under CERCLA. The district court denied Teck's motion to dismiss, holding that while the case involved CERCLA's extraterritorial application, dismissal was inappropriate because there was a significant federal question under CERCLA and that under CERCLA, Teck was a "person" (5) and could be held liable as a hazardous waste "generator" (6) or as a hazardous waste disposal "arranger." (7) The district court sent its order for immediate review by the Ninth Circuit, per 28 U.S.C [section] 1292Co). (8) Subsequently, the Ninth Circuit granted Teck's petition for interlocutory appeal and the district court granted Teck's motion to halt proceedings pending...

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