United States v. Washington, 827 F.3d 836 (9th Cir. 2016) (holding: (i) the fishing clause in the Stevens Treaties guaranteed Indian tribes the right to off-reservation fishing, with an inferred promise that sustainable fish populations would be available for tribal harvest; (ii) the State violated the fishing clause by constructing and operating barrier culverts that interfered with fish migration; and (iii) the permanent injunction appropriately ordered the State to correct barrier culverts).

In 1854 and 1855, multiple Pacific Northwest Indian tribes (“Tribes”) entered into the Stevens Treaties (“Treaties”), in which, inter alia, tribes relinquished land known as the “Case Area” to what is now the State of Washington (“State”) in exchange for a guaranteed right to off-reservation fishing.  Pursuant to this “fishing clause,” tribes had the right to take fish “at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”  These Tribes rely on salmon fishing and engage in commercial salmon fishing, consume salmon to meet dietary needs, and use salmon in cultural and religious ceremonies.  Tribes and the State have long been in conflict over these fishing rights.  This case stems from a United States suit brought on behalf of Tribes in 1970 to resolve these persistent conflicts.

When building roads over streams, State road builders historically constructed culverts under the roads to allow natural stream flow.  However, these culverts interfere with salmon migration.  The culverts prevent juvenile salmon from migrating to sea where they mature, prevent mature salmon from returning to their spawning grounds, and prevent young salmon from freely locating food and avoiding predators.  As a result, salmon numbers diminished.

In 2001, the Tribes filed a request for determination with the United States District Court for the Western District of Washington (“district court”), which sought to impose a duty upon the State to abstain from constructing culverts that degraded fish habitat and reduced adult fish populations.  The United States joined the Tribes’ request for determination and sought declaration from the district court that the fishing clause in the Treaties imposed a duty upon the State to abstain from constructing or maintaining culverts that interfered with the fishery resource in way that “deprive[d] the Tribes of a moderate living from the fishery.”    Additionally, both the Tribes and the United States individually sought a permanent injunction from the district court requiring that the State open culverts that interfered with salmon migration, and requiring the State to remedy culverts that substantially reduced fish migration, respectively.

The district court ruled against the State on two grounds: (i) that the fishing clause imposed a duty upon the State to abstain from constructing or operating culverts that interfered with fish migration in a manner that reduced salmon that would “otherwise be available for Tribal harvest”; and (ii) that the State operated culverts that violated this duty.

In 2013, after failed settlement efforts, the district court issued a Memorandum of Decision, in which it found that the Treaties purported to assure Tribes that they would forever have an adequate salmon supply.  The district court reasoned that culverts, in part, degraded salmon habitat by inhibiting the free migration of adult and juvenile salmon, which resulted in reduced Tribal harvests that prevented tribal members from earning a living and caused “cultural and social harm to the Tribes in addition to economic harm.”  On the same day, the district court issued a permanent injunction ordering the State, in consultation with the United States and Tribes, to compile a list of state-owned barrier culverts within the Case Area and required the State to correct all listed culverts in a manner that provided fish passage.  The State appealed.

On review in the United States Court of Appeals, Ninth Circuit (“court”), the State contended that the Treaties did not impose a duty on the State to abstain from constructing barrier culverts, and objected to the scope of the district court’s injunction

First, the court determined the State’s duties under the Treaties.  The court found that the State misconstrued the Treaties by characterizing their primary purpose as “opening up the region to settlement”; the court instead deemed the primary purpose as establishing a reliable means to sustain tribal livelihoods once the Treaties took effect.  The court, relying on Supreme Court precedent, construed treaties between tribes and the United States in favor of the tribes. Along that vein, the court reasoned the Tribes understood that the Treaties would provide not only access to usual and accustomed fishing places, but also to sustainable salmon populations; thus, regardless of explicit language, the court would infer that promise.

The court then reviewed the facts presented to the district court regarding the State’s culverts and recognized their effects within the Case Area as “block[ing] approximately 1,000 linear miles of streams suitable for salmon habitat.”  Therefore, the culverts precluded sufficient salmon populations that would maintain a moderate living for the Tribes.  The court further reasoned that replacing or modifying culverts to increase salmon migration would render more mature salmon available for Tribal harvest.

Next, the court addressed the appropriateness of the district court’s injunction and rejected the State’s contentions.  The State contended that the Tribes did not provide sufficient evidence that the culverts significantly caused the salmon’s decline. However, the court determined that the Tribes had presented extensive evidence.  Specifically, the Tribes presented a report prepared by state agencies, which acknowledged culverts as a type of barrier to fish migration and as “correctable obstacles.”  The State also contended that the district court’s injunction ordered the State to correct almost all state-owned barrier culverts without evidence that such corrections would improve salmon migrations.  However, the court reiterated that the State’s own evidence illustrated that once salmon habitat is accessible by un-blocking barrier culverts, “hundreds of thousands of adult salmon” would be available to Tribes.

Accordingly, the court affirmed the district court’s holdings and concluded that the district court did not abuse its discretion by issuing the permanent injunction.

Gia Austin

Image: A coho salmon spawning on the Salmon River in the Pacific Northwest. Flickr User BLMOregon, Creative Commons.


Rangen, Inc. v. Idaho Dep’t of Water Res., 371 P.3d 305 (Idaho 2016) (affirming the district court’s ruling that: (i) the Idaho Department of Water Resources’ approval of a mitigation plan that deferred consideration of injury to other water users was not an abuse of discretion; (ii) a mitigation plan that included curtailment and insurance as contingencies was adequate to assure protection to senior priority rights; and (iii) construction of a water pipeline across private land to a place of beneficial use did not constitute an unlawful taking under Idaho’s eminent domain laws).

On December 13, 2011, Rangen, Inc. (“Rangen”) filed a petition for a delivery call with the Idaho Department of Water Resources (“IDWR”), alleging groundwater pumping by junior appropriators in the Eastern Snake Plain Aquifer (“ESPA”) materially injured its water rights.  In response, IDWR’s director (the “Director”) issued an order that curtailed some junior-priority groundwater pumping in the ESPA.  The order allowed junior-priority groundwater users to avoid curtailment by participating in an approved mitigation plan providing 9.1 cubic feet per second (“cfs”) of water to Rangen.  Idaho Ground Water Appropriators, Inc. (“IGWA”), who represented junior priority users in ESPA, submitted several mitigation plans to IDWR.  On October 8, 2014, the Director conditionally approved IGWA’s Fourth Mitigation Plan (the “Plan”), which required IGWA build and maintain a pumping station, pipeline, and other necessary facilities for the transport of water (“the “Magic Springs Project”).  Under the Plan, SeaPac of Idaho, Inc. agreed to sell or lease 10 cfs of water to IGWA.  IGWA would then pump that water to Rangen through the Magic Springs Project.

The conditional plan hinged on IGWA obtaining approval for its Application of Transfer from SeaPac of Idaho, Inc.  The Director declined to rule on the Application of Transfer in the order.  The Plan also required IGWA to purchase an insurance policy that covered Rangen’s losses of fish attributable the Magic Springs Project’s failure.  Last, the Director ordered Rangen state in writing that it would accept the water delivered and the construction of the Magic Springs Project on its land.  If the conditions failed, IDWR would suspend the Plan.  Nevertheless, IGWA constructed the Magic Springs Project’s pipeline during the conditional period.

After approval, Rangen petitioned the district court to review the Director’s decision.  The district court affirmed the decision.  Rangen then appealed to the Supreme Court of Idaho, challenging that: 1) the Director abused his discretion when he deferred consideration of potential injury to other water users until proceedings on IGWA’s Application for Transfer; 2) the Director erred by approving a plan with inadequate contingency provisions; and 3) the Director’s order constituted an unlawful taking of Rangen’s property and should be set aside.

First, the Supreme Court of Idaho held the Director did not abuse his discretion by deferring consideration of potential injury to other water users until the proceedings on IGWA’s Application for Transfer.  Here, Rangen argued the Director did not have discretion to defer consideration of injury to water users under Conjunctive Management Rule (“CMR”) 43.03j and that it was unreasonable to ignore those factors.  CMR 43.03 and subsection j state the Director “may” consider “whether the mitigation plan is consistent with the conservation of water resources, the public interest or injures other water rights, or would result in the diversion and use of ground water at a rate beyond the reasonably anticipated average rate of future natural recharge.” The Court began its analysis by interpreting the CMR’s regulatory language.

The Court found that a plain reading of the CMR gave the Director discretion to defer consideration because the word “may” was permissive rather than imperative.  The Court compared the regulatory language to its interpretation in another case that required the Director consider several factors in determining injury prevention.  The case was distinguishable as it referred to a different subsection that stated, “the mitigation plan must include. . . .”  After undertaking this analysis, the Court turned to Rangen’s assertion that it was unreasonable to ignore the factors under CMR 43.03j.

Rangen claimed it was unreasonable for the Director not consider CMR 43.03j for two reasons.  Rangen first claimed the Director would not find injury to other users because IGWA had completed construction of its pipeline and accordingly had failed to consider potential injury to other users.  The Court rejected this argument, finding it unclear how potential injury to users would occur without consideration, as the Plan provided other users with the opportunity to raise issues at the later proceeding.  Furthermore, Rangen failed to submit any evidence to the court showing the Direct would allow construction based on the pipeline’s construction and IGWA bore the risk burden when it built the pipeline early.  Rangen also argued the Director should have conducted the injury analysis in the Plan because the later transfer proceeding went forward under a different regulatory provision than CMR 43.03j.  In response, the Court again pointed to the Director’s discretion provided by the CMR.  After determining the Director did not abuse his discretion by delaying Application of Transfer Proceedings, it turned to Rangen’s challenge that the Plan did not include adequate contingency provisions.

The Court found the contingencies were adequate because the IDWR did not avoid curtailment of junior-priority rights in the event that the Plan became unavailable.  CMR 43.03c requires mitigation plans “assure protection of the senior priority right in the event the mitigation water sources becomes unavailable.”  Under this regulation, Rangen argued curtailment was not a contingency because it was a natural and legal consequence that occurs without mitigation, and that the benefits of curtailment can take years to materialize and would not immediately remedy its injury.  The Court rejected this argument, finding the Plan offered sufficient protection to Rangen’s right through the combination of a curtailment and insurance.  It noted the insurance policy would provide as a safeguard if curtailment failed to provide a remedy.  Rangen then challenged that the insurance plan’s adequacy for compensating potential losses it would suffer if a shortage occurred.  The Court allayed these concerns by stating the insurance policy covered exactly the type of injury Rangen discussed.

Finally, the Court turned to Rangen’s argument that IDWR’s order constituted an unlawful taking of senior owner’s property.  Rangen argued the Director’s order amounted to an unlawful taking because it forced senior owners to choose between granting IGWA an easement or risk losing water that they were entitled to because the order allowed IGWA to suspend its mitigation obligation if Rangen did not allow the pipeline’s construction.  The Court found that even if it interpreted the Director’s order to require Rangen to grant IGWA an easement because Idaho’s constitutional eminent domain power extends to property of public use after just compensation.  Under the Idaho Constitution, right of ways for the construction of pipelines to convey water to the place of beneficial use fall under that power.  This would allow the state to take the property after just compensation.  Since Rangen did not allege that it was not provided just compensation, the Court rejected this claim.

Accordingly, the Court upheld the district court’s partial affirmation of the Director’s order conditionally approving the Plan.

Dalton Kelley

Image: No Trespassing sign in Idaho. Flickr User Makis Siderakis, Creative Commons.


New Mexico, ex rel. State Engineer v. Trujillo, 813 F.3d 1308 (10th Cir. 2016) (holding that a special master in a general stream adjudication properly granted summary judgment against an individual who objected to a district court’s proposed order limiting her water use to 0.5 acre-feet per year (“AFY”)).

This case came before the Tenth Circuit Court of Appeals as an individual challenge to a general stream adjudication initiated by New Mexico to determine water rights in the Nambe-Pojoaque-Tesuque Basin (“Basin”), which originates in the Sangre de Cristo Mountains.  Elisa Trujillo held a domestic well permit allowing her to divert underground water in the Basin.  The individual adjudication of water rights led to the conflict between Trujillo and New Mexico.  In 1983, the United States District Court for the District of New Mexico prevented the state from issuing domestic well permits in the Basin unless the water was used for household purposes only.  This permit provision specifically excluded using water for irrigation.   In 1985, Trujillo’s predecessor-in-interest received a domestic well permit in accordance with the 1983 injunction (prohibiting irrigation) and was granted a maximum use of 3.0 AFY.

In 1994, the district court directed a special master to determine the appropriate amount of water rights for all permits granted after 1982, including Trujillo’s.  The doctrine of beneficial use controls how much water is granted to each permit, and under the New Mexico Constitution, is the amount of water that can be used beneficially and with purpose; water rights are limited based on that use.

Because of the 1994 order by the district court, Trujillo’s permit was amended to limit water use to either 3.0 AFY or the historic, beneficial use, whichever was less.  The court allocated 0.5 AFY for domestic wells unless permit holders showed a greater beneficial use.  In 2006, the district court required permit holders to show (1) why the permit should not be adjudicated to 0.5 AFY and (2) why the water rights should not be otherwise adjudicated consistent with the terms of the domestic well permit in order to obtain more AFY.  Essentially, the burden was placed on the permit holder to prove a need for more than 0.5 AFY in keeping with the doctrine of beneficial use.

Trujillo’s permit was originally designated for domestic use, and in 1985, the permit allowed for up to 3.0 AFY of water.  The state’s proposed order restricted Trujillo’s water use to indoor purposes and limited the amount to 0.5 AFY based on historic beneficial use.  Trujillo objected to her permit’s prohibition on outdoor use and the limitation of 0.5 AFY.  The State offered into evidence an affidavit by an expert witness stating that, on average, permits for a domestic well use 0.4 AFY per household. Trujillo failed to prove that she had the right to use more than 0.5 AFY under the doctrine of beneficial use for a purpose other than as allowed in the permit. In 2010, the Special Master granted summary judgment in favor of New Mexico.

After the Special Master issued the order, Trujillo filed several motions, including an objection to the 2010 order of summary judgment, two motions to quash the 1983 injunction, and a motion to reconsider the district court’s overruling of her objection to the order of summary judgment.  In 2015, the district court issued an order adjudicating Trujillo’s domestic water rights as part of a regional general stream adjudication.  The 2015 order issued by the district court imposed identical conditions on Trujillo’s domestic water rights as had been stated in the 2010 order: a limit of 0.5 AFY with a prohibition on outdoor use including irrigation.  The Court did not find this to be a final ruling subject to its jurisdiction because Trujillo and other permit holders may object to the order during the inter se stage before the district court enters a final judgment on September 15, 2017.  Therefore, the Court did not have jurisdiction under 28 U.S.C. § 1291 to review 2015 order by the district court.  The pragmatic finality doctrine is an exception under § 1291 and may be applied in order to expedite appellate review. However, the Court did not apply the pragmatic finality doctrine to Trujillo’s appeal, instead finding jurisdiction under 28 U.S.C. § 1291(a), which permits interlocutory appeals.

Accordingly, the Court had jurisdiction to review the Special Master’s summary judgment order issued in 2010.  The Court upheld the district court’s ruling from 2010 and the subsequent order in 2015. On appeal, Trujillo did not present the court with evidence of her beneficial indoor use.  Trujillo failed to raise an argument against the 2010 decision upon which the 2015 decision was based.  Contrary to New Mexico law, Trujillo argued that her permit alone created the water right.  Beneficial use is the basis from which all water rights within the state may be legally measured and limited, and Trujillo gave no evidence of her beneficial use for indoor purposes in excess of the allocated 0.5 AFY.

Therefore, the Court affirmed the district court’s order for summary judgment in favor of the state of New Mexico.

Margaret Casey

Image: The Río Grande del Norte National Monument, which is west of the Sangre de Cristo Mountains in New Mexico. Flickr User Bureau of Land Management, Creative Commons.

 

 


Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (holding that three federal agencies managing a dam did not violate the requirements of NEPA when they decided to fluctuate the level of a reservoir without filing an environmental impact statement because that decision was within the range of action originally available when the dam was first operational, and therefore, was not a major federal action).

The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”  An EIS is a detailed study that examines the environmental consequences of an agency’s action.  To determine whether an EIS is necessary, Agencies prepare environmental assessments (“EA”).  In this case, the United States Court of Appeals for the Ninth Circuit decided whether the Bonneville Power Administration (“BPA”) violated the requirements of NEPA when BPA concluded in an EA that no EIS would be necessary to raise and lower the level of Lake Pend Oreille to generate power through the Albeni Falls Dam.

The Albeni Falls Dam (“Dam”) lies on the Pend Oreille River and operates to balance a variety of competing objectives including flood control, power generation, navigation, and wildlife conservation.  Lake Pend Oreille (“Lake”) serves as the Dam’s reservoir.  The Dam’s electricity output corresponds with the amount of water released from the Lake.  Higher output lowers the Lake and causes its shoreline to recede.

The Army Corps of Engineers (“Corps”), the BPA, and the Bureau of Reclamation jointly manage the Dam.  Since its completion in 1957, the Corps fluctuated the level of the Lake to generate power as needed during the winter months.  However, from 1997 to 2011, the Corps maintained the Lake at a constant level to mitigate adverse effects on the kokanee salmon population.

In 2009, the BPA advocated for more “flexible winter power operations.”  The operating agencies developed a new plan (the “Plan”), which preserved the Corps’ discretion to raise and lower the level of the lake by up to five feet during the winter.  Along with the Plan, the agencies published an EA in which they concluded that fluctuating the level of the Lake had no significant environmental impact.  The agencies moved forward without preparing an Environmental Impact Statement.

The Idaho Conservation League (“Petitioner”) challenged the agencies’ decision to move forward without preparing an EIS as a violation of the requirements of NEPA.  The Petitioner requested the court to require the BPA prepare an EIS.  The Petitioner also challenged the EA’s finding of no significant impact, claiming the agencies failed to consider the Plan’s impact on the spread of the flowering rush, an invasive species.  The court held the Plan did not violate the requirements of NEPA.

First, the court rejected the Petitioner’s EIS request, explaining that an action is not a major federal action when an agency operates a facility “within the range originally available to it,” and that the EIS requirement only applies where the proposed action is major.  Actions regarding ongoing projects can be major when agencies make changes that “themselves amount to major Federal actions.”  There was no change in the Plan.  In other words, the plan “did not change the status quo” because if the agencies had before consistently fluctuated the levels of the Lake during the winter, then formalizing the approach to fluctuation would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Dam] was first operational.”  The court concluded the Corps never relinquished its discretion to fluctuate the level of the Lake from 1997 to 2011 when the agency maintained the Lake at a consistent level.  The court reasoned that because the agencies decided to maintain the lake at a consistent winter level on a year-to-year basis, that they had always retained the authority to respond to annual changes in power demands.  By rejecting Petitioner’s request, the court held all other challenges to the EA were moot.  Since the Plan did not trigger a major federal action, the agencies had no need to further consider the flowering rush.

Finally, the court noted that the Petitioner may have had a separate colorable claim if they had argued that the agencies must have supplemented an existing EIS with an analysis of how year-round dam operations affect the spread of the flowering rush.  Agencies have a duty to supplement if there are “significant new circumstances or information relevant to environmental concerns” that were not considered in an earlier EIS.  However, the court found that issue was outside the scope of the case and only raised on appeal.

Accordingly, the court held that the agencies’ decision to move forward with the Plan without preparing an EIS did not violate NEPA.

Trevor C. Lambirth

Image: Photo taken by Roland Taylor of Lake Pend Oreille in Northern Idaho. Flickr user U.S. Department of the Interior, Creative Commons.


Upper Eagle Reg’l Water Auth. v. Wolfe, 371 P.3d 681 (Colo. 2016) (holding that an owner of multiple water rights can choose to divert and make absolute any of its in-priority, conditional water rights and is not required to make absolute a senior conditional water right before a junior conditional water right, so long as the owner lives with his or her choice and does not injure the rights of other water users).

Effective as of March 25, 2004, the Upper Eagle Regional Water Authority (the “Authority”) formed a water service agreement with the Edwards Metropolitan District and the Cordillera Metropolitan District.  Under the agreement, the Cordillera Metropolitan District gave certain water rights and facilities to the Authority, which in turn provided water services to the Cordillera area.  The rights conveyed to the Authority included the SCR Diversion Point No. 1 conditional water right (the “Senior Lake Creek Right”), with a priority year of 1989, and the Eagle River Diversion Point No. 2 conditional water right (the “Junior Eagle River Right”), with a priority year of 1991.  Pursuant to the agreement, the Authority would limit use of both conditional water rights to irrigation, domestic, commercial, and fire protection purposes, with diversions to occur at the Edwards Drinking Water Facility.

On July 4, 2004, a day on which there was no call on the Colorado and Eagle Rivers, the Authority diverted 0.716 cubic feet per second (“cfs”) of water at the Edwards Drinking Water Facility on the Eagle River for beneficial use in the Cordillera area.  The Authority allocated 0.47 cfs of this diversion to its Junior Eagle River Right.  On December 29, 2004, the Authority filed an Application for a Finding of Reasonable Diligence and to Make Water Right Absolute (“Application”).  The Application requested confirmation that the Authority had made absolute 0.47 cfs of the Junior Eagle River Right at the Edwards Drinking Water Facility for irrigation, domestic, commercial, and fire protection purposes during free conditions.  The State and Division Engineers (the “Engineers”) opposed the Application.

The Engineers initially argued the Authority must make diversions in accordance with the “seniors first” policy, requiring that users first attribute diversions to senior absolute water rights, then to senior conditional rights, and finally, junior conditional rights.  A Water Court granted the Engineers’ motion for summary judgment in part and denied the Authority’s claim for making 0.47 cfs of the Junior Eagle River Right absolute.  The court held the Authority did not have discretion to choose a junior water right over a senior water right when both rights decreed the same point of diversion for the same purposes at the same place of use.

The Authority appealed the Water Court’s decision, arguing that it should have the discretion to choose the conditional water right it wants to divert and use.  The Colorado Supreme Court reviewed de novo the Water Court’s conclusions of law.

The Court only examined whether Authority had to attribute its diversion to a senior water right.  The Engineer partially based its argument on a previous Colorado Supreme Court holding, which required that applicants seeking to make a conditional water right absolute first show they appropriated water in excess of an existing absolute decree.  The Court rejected that argument by distinguishing the facts of this case as involving a choice between two conditional rights rather than a choice between a conditional right and an absolute right.  The Court reasoned that the previous case was not compatible, because the Authority had to attribute one of its conditional rights to a needed water diversion.

The Engineers then argued that application of a “seniors first” policy here would help effectively administer the prior appropriation system and “correctly express” the Colorado Constitution and state statutes.  The Engineers believed that if the Court allowed the Authority to freely select among its conditional water rights, the Authority could change its attribution of diversions from one day to the next.  The Engineers claimed that this potential behavior was dangerous because it could allow the Authority to make absolute more water rights than it actually needed.  The Court did not accept the Engineers’ argument.

The Court ruled that once the Authority makes 0.47 cfs of the Junior Eagle River Right absolute, it must live with that choice; the only way the Authority could later perfect its other conditional water rights is through showing with quantifiable evidence that it requires more water than 0.47 cfs of the Junior Eagle River Right to fulfill the need of the Cordillera area.  The Court summarized that, absent any evidence of waste, hoarding, or injury to the rights of other water users, the Authority may choose which of its conditional water rights it wishes to divert and make absolute.

Accordingly, the Court reversed the order of the Water Court that the July 4, 2004 diversion must be allocated to the Senior Lake Creek Right, and remanded the case with instructions to make 0.47 cfs of the Junior Eagle River Right absolute.

Tina Xu

Image: Flowing water on the way up to Hanging Lake located in Glenwood Canyon, Colorado. Flickr User Zach Dischner, Creative Commons.


Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134 (1st Cir. 2016) (holding that a real estate developer and home builder failed to state facts sufficient to establish a facially plausible claim to relief in their complaint, which alleged that a water district and its superintendent deprived them of federal and state constitutional rights when the superintendent raised valid objections of public concern against the construction of a subdivision).

In 2012, Najas Realty, LLC (“Najas”) purchased a ten-acre parcel of land (the “Property”) in Seekonk, Massachusetts (the “Town”) and filed a preliminary subdivision plan application to develop a ten-lot subdivision (the “Pine Hill project”).  The Seekonk Board of Health met to discuss the application.  The Seekonk Water District’s Superintendent, Robert Bernardo, attended the meeting and expressed concerns that Pine Hill project could potentially impact one of the Town’s wells, Well GP-4.  Bernardo asserted that a malfunctioning septic system servicing a nearby middle school caused high nitrate levels in the soil around GP-4.  As a solution, the Board of Health required that Najas perform a nitrate loading analysis.

After the Seekonk Board of Health initially met, Bernardo expressed concerns at two other meetings that the Pine Hill project’s septic system could increase nitrate levels and expose unborn babies and nursing infants to “Blue Baby Syndrome,” and that nitrate contamination requires high clean-up costs.  Najas rejected these claims.

After these meetings, Najas completed its nitrate loading analysis and submitted a definitive subdivision plan. Najas claimed the plan satisfied regulatory requirements for septic systems and kept nitrate levels in the GP-4 area within regulatory limits.  The Board of Health initially voted to approve the analysis.  After approval, the Planning Board held a public hearing. At the hearing, Bernardo claimed the nitrate loading analysis’ data was false.  In response, the Planning Board reviewed and denied the Pine Hill project.  Najas then appealed to the Massachusetts Land Court.

The appeal led to a settlement allowing Najas to proceed if it reduced the number of lots from ten to nine and shortened the subdivision’s road length.  The Planning Board reviewed the revised plan at another public meeting.  Bernardo again attended and voiced concerns about water contamination issues.  The Planning Board approved the revised Pine Hill project.  The Seekonk Water District then filed a petition to the Planning Board to rescind or modify the approved plan.  The Planning Board denied the petition, and the Pine Hill project continued in accordance with the revised plan.

Najas, joined by Petra Building Corporation (“Petra”) (collectively, “Plaintiffs”), filed a complaint in the United States District Court for the District of Massachusetts against the Seekonk Water District and Bernardo (collectively, “Plaintiffs”), asserting claims under the United States Constitution and analog claims under the Massachusetts Constitution.  The complaint asserted: (1) Defendants retaliated against the Plaintiffs for asserting First Amendment rights to petition and freedom of speech; (2) Defendants violated Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out; (3) Defendants violated Plaintiffs’ Fourteenth Amendment due process rights by opposing the plan; and (4) Defendants tortuously interfered with Plaintiffs’ business.  The district court granted judgment on the pleadings in favor of the Defendants, stating that Najas and Petra failed to state a viable claim.  Subsequently, Plaintiffs submitted a second complaint, which the district court also dismissed in a final judgment.

Plaintiffs appealed to the United States Court of Appeals for the First Circuit, claiming the district court required too much at the pleading stage and the complaint was sufficient to deny a motion for judgment on the pleadings.  The court reviewed the appeal de novo.

The court started its analysis noting that for constitutional claims under 42 U.S.C. § 1983, plaintiffs must prove the conduct complained of was committed under color of state law and that the conduct worked as a denial of rights secured by the United States Constitution.  The court accepted that Bernardo acted under the color of state law, and proceeded by determining whether he encroached on the Plaintiffs’ constitutional rights.

To begin, the court analyzed whether Bernardo had retaliated against the Plaintiffs’ First Amendment right to petition and freedom of speech.  The court stated a cognizable retaliation claim under the First Amendment requires plaintiffs show the conduct was constitutionally protected and that a causal connection existed between the protected conduct and the retaliatory response.  The court found it was unclear whether Najas’s conduct was protected petitioning conduct or free speech comprising commentary on a matter of public concern.  Instead, the court evaluated the test’s second prong, whether the Plaintiffs had established a causal connection between the protected conduct and the retaliatory response.

For this element, Najas pointed to Bernardo’s accusation that the data submitted for the Pine Hill project was “fabricated, false, inflammatory, and baseless.”  The court first discussed the retaliatory conduct and found the record offered no indication that Bernardo did not genuinely hold his concerns.  Graphs revealed “variable and sometimes excessive” nitrate levels from in the monitoring the area dating back to 1995.  The record also showed that members on the Board of Health previously expressed concerns regarding nitrate levels before Bernardo spoke at the initial meeting.  The court also took judicial notice that the Environmental Protection Agency has linked excessive nitrate levels to Blue Baby Syndrome and that nitrate contamination requires high clean-up costs. Therefore, the court found the Plaintiffs’ allegations of retaliatory conduct were conclusory and that Bernardo had a duty to raise objections about potential public health impacts that he believed were valid.

The court then discussed whether Bernardo violated the Defendants’ protected First Amendment right to free speech on a matter of public concern.  Matters of public concern are those “relating to any matter of political, social, or other concern.”  The court found Bernardo had not committed such a violation because, as superintendent, he had an obligation to speak out on matters of public concern.

Next, the court analyzed the claim that Bernardo violated the Plaintiffs’ Fourteenth Amendment equal protection rights by singling them out for unique reasons.  To prevail on this claim, the complaint had to show the Defendants were motivated by bad faith or malicious intent to injure when they treated the Plaintiffs differently from others similarly situated and without a rational basis for doing so.  However, the court found the Plaintiffs failed to explain how other developers and builders were similarly situated because they did not provide basic information, such as when other projects were located, and when they were built.

After the equal protection claim, the court examined the Plaintiffs’ substantive due process claim under the Fourteenth Amendment.  To assert a viable substantive claim, plaintiffs must prove deprivation of an established life, liberty, or property interest, and that the deprivation occurred through governmental action that shocks the conscience.  The court found it unclear what deprivation occurred, and noted the Plaintiffs “oddly” claimed that by opposing the project, Defendants deprived them of life and liberty.  The court instead analyzed the claim as a deprivation of property.

Substantive due process claims regarding deprivation of property cases are only available in “horrendous situations.”  The court found that, at worst, the Defendants actions were “doggedly persistent,” and this did not amount of “brutal, meaning, and harmful” conduct as is necessary in such a claim.

Finally, the court analyzed the Plaintiffs’ claim that Bernardo intentionally interfered with a business expectation, opportunity, and advantage.  Here, the court addressed whether Bernardo’s actions directly attempted to interfere with business relations.  The court granted Bernardo immunity for his actions under Massachusetts common law, where public officials who act in good faith and exercise judgment and discretion are not liable for errors in making decisions.  Here, the court again stated that the Plaintiffs’ complaint failed to state a plausible claim for bad faith or malice intent.

Accordingly, the court affirmed the order of the district court.

Kole Kelley

Image: Drawbridge on the Seekonk River, a tidal extension of the Providence River. Flickr user rprata, Creative Commons.

 


Fairfield Cnty. Bd. of Comm’rs v. Nally, 34 N.E.3d 873 (Ohio 2015) (holding that a new Total Maximum Daily Load for pollutant discharges into a watershed was a rule as defined under the Ohio Administrative Procedure Act and, as such, should have been properly promulgated to afford interested parties their rights to notice and be heard before the rule’s submission to the U.S. Environmental Protection Agency for approval).

The Federal Water Pollution Control Act, or Clean Water Act, seeks to restore and maintain the integrity of U.S. waters through (i) technology-based effluent limitations on “point sources” discharging pollutants; and (ii) water-quality standards for protecting the use of identified water bodies. The Clean Water Act also requires each state to identify waterways that are too impaired to implement applicable water-quality standards and then rank waterways based on pollution severity. States must then develop a Total Maximum Daily Load (TMDL), which establishes a maximum amount of the specified pollutant that may be discharged into the waterway without violating water-quality standards. Once the U.S. Environmental Protection Agency (“EPA”) approves a state’s TMDL, the state must implement that TMDL.

Pursuant to these requirements, the Ohio Environmental Protection Agency (“Ohio EPA”) developed a document in 2005 called the “Total Maximum Daily Loads for the Big Walnut Creek Watershed” (“TMDL report”), which the EPA subsequently approved. Using stream-survey data from 2000 of Blacklick Creek—one of the 54 “stream segments” in the Big Walnut Creek watershed—the report put forth new phosphorous discharge limits for Blacklick Creek. The Tussing Road Water Reclamation Facility (“Tussing Road plant”), owned by Fairfield County (“the county”), is one of the sources subject to the report’s new limitation. In 2006, the county applied for and received a renewed National Pollutant Discharge Elimination System (“NPDES”) permit for the Tussing Road plant. The new permit included the TDML-derived phosphorous discharge limitation.

The county appealed this limit to the Environmental Review Appeals Commission (“ERAC”), which found that while the Ohio EPA had a valid basis for imposing the limit, it failed to consider whether such a limit was feasible. Thus, the ERAC vacated the phosphorous limit and remanded the case to the Ohio EPA. Subsequently, the county appealed the ERAC’s finding that the Ohio EPA had a valid foundation for imposing the limit, and the Ohio EPA cross-appealed (asserting that the TMDL had been federally approved and that federal law required Ohio EPA to set the phosphorous limit). The Tenth District Court of Appeals (“lower court”) affirmed the ERAC’s order, finding that there was sufficient factual foundation for a phosphorous limitation and rejecting the county’s assertions that the new limitation lacked meaningful review and, therefore, violated due process. The county appealed to the Supreme Court of Ohio (“Court”).

The Court first considered whether the TMDL was a “rule” within the requirements of Chapter 119 of the Ohio Administrative Procedure Act, which defines a “rule” as any “standard, having a general and uniform operation, adopted, promulgated, and enforced by any agency.” Because the TMDL sets a new legal standard—applied by the Ohio EPA—to “all current and future dischargers in the Big Walnut Creek watershed,” the Court observed that the limit fell within Chapter 119’s definition of “rule.” Additionally, the Court disagreed with the agency’s argument that the TMDL is merely a tool for implementing its pre-existing legal obligation. Examining the consequences of a TMDL, the Court determined that even though the Ohio EPA allocated limits individually to different point sources, the same standards and procedures applied to each; thus, the TMDL had “general and uniform effect.” Finally, the Court noted that the TMDL creates new legal obligations. The results of the TMDL development process were new mandatory loading reductions rather than “mere enforcement of compliance with existing authority,” as argued by the Ohio EPA. Thus, the Court held this indicated that the TMDL was indeed a rule subject to rulemaking procedures.

The Court then addressed the county’s second argument—that the TMDL itself establishes a new water-quality standard and therefore requires rulemaking procedures. Previously, the Ohio EPA had promulgated a narrative standard for phosphorous in the Ohio Administrative Code, requiring limitations on phosphorous “to the extent necessary to prevent nuisance growths of algae, weeds, and slimes that result in a violation of water quality criteria.” However, the TMDL imposes a numeric limit for phosphorous for all water bodies in the Big Walnut Creek watershed. The Court found that this new numeric limit constituted a water-quality standard; therefore it should have been first promulgated as a rule under Chapter 119.

Because the TMDL was a rule, the Court held that the Ohio EPA should have complied with Chapter 119’s rulemaking procedures, which include providing public notice, an opportunity for public comment, and a public hearing before using the TMDL-derived target in an NPDES permit. The Court found that while the Ohio EPA did make a draft of the TMDL available for public review before submission to the EPA, that act alone did not satisfy the rulemaking procedural requirements. Because agencies must give the public certain due process rights before a rule attains final federal approval, the Court held that Ohio EPA’s failure to do so ultimately deprived NPDES permit holders of their rights to notice and be heard regarding the rule.

Accordingly, the Court affirmed the lower court’s judgment, vacating the new phosphorous standard and remanding the cause to the Ohio EPA.

Justice O’Donnell concurred as to the ruling, but agreed with the court of appeals’ reasoning. Justice O’Connell observed that the Ohio Administrative Code allows water-quality standards to be either numeric or narrative in nature, and the Ohio EPA had already promulgated the narrative standard for phosphorous limits (quoted above). Because TMDLs merely provide the factual and technological data needed to implement Ohio water-quality standards, Justice O’Donnell argued that TMDLs are not administrative rules and need not be promulgated as such. In O’Donnell’s view, TMDLs are not legal standards, but objective, factual determinations that the Ohio EPA makes to interpret and implement the water-quality standards. Accordingly, Justice O’Donnell would affirm the court’s ruling on the grounds that the Ohio EPA did not challenge the lower court’s determination that the Ohio EPA failed to consider the technical feasibility and economic reasonableness of the limit, rather than the Court’s ruling that the TMDL was a rule.

Katy Rankin

Image: Turtle Pond Panorama, Three Creeks Metro Park, where Big Walnut Creek is joined by its principal tributaries Alum Creek and Blacklick Creek, Columbus Ohio.  Flickr user Raymond Wald, Creative Commons.


Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015) (affirming the district court’s ruling that: (i) the Bureau of Safety and Environmental Enforcement’s approval of the challenged oil spill response plans was not arbitrary and capricious; (ii) the Endangered Species Act did not require the Bureau of Safety and Environmental Enforcement to consult with any environmental agencies before approving oil spill response plans; (iii) the Bureau of Safety and Environmental Enforcement was entitled to Chevron deference for its interpretation of the Oil Pollution Act; and (iv) the National Environmental Policy Act did not require the Bureau of Safety and Environmental Enforcement to do an environmental impact statement before approving an oil spill response plan).

The Outer Continental Shelf Lands Act (“OCSLA”) outlines the procedure for exploration and development of oil and gas resources offshore. This process has four stages. First, the Secretary of Interior creates a five-year leasing program under which operators may search and mine for oil and gas. Second, the Secretary must approve the leases under agreed upon terms and conditions. Third, the lessee must provide the Secretary with a plan of exploration and an Oil Spill Response Plan (“OSRP”) pursuant to the Clean Water Act (“CWA”). Fourth, after searching for oil and gas, and successfully finding either, the lessee has must submit a production and development plan to the Secretary for approval.

At the third stage, the Secretary of the Interior has delegated its power to the Bureau of Safety and Environmental Enforcement (“BSEE”) to approve OSRPs to prevent and respond to oil spills. The CWA requires these plans at four levels: national, regional, local, and individual. At the individual level, owners and operators must propose an OSRP for approval that outlines their response to a potential “worst case discharge” of oil or some other hazardous substance.

Shell Gulf of Mexico Inc. and Shell Offshore Inc. (collectively “Shell”) acquired three leases for offshore exploration and production—two leases in the Beaufort in 2005 and 2007, and one in the Chukchi Seas in 2008. Shell complied with all regulations at the time for intended exploration, but due to the Deepwater Horizon oil spill in 2010, the Secretary of the Interior placed a temporary moratorium on all offshore drilling. The United States Department of Interior required owners and operators to provide new information in all OSRPs after the moratorium ended. To comply with the new criteria, Shell updated its OSRPs for its three leases. BSEE approved the updated Beaufort and Chukchi Seas OSRPs.

Alaska Wilderness League, a coalition of environmental groups, sued Secretary of Interior, Sally Jewell, in her official capacity because of the approval of Shell’s three OSRPs. Shell intervened as a co-defendant. On cross-motions for summary judgment, the United States District Court for the District of Alaska (“district court”) ruled in favor of Jewell and Shell. Alaska Wilderness League appealed to the United States Court of Appeals, Ninth Circuit (“Court”). The Court reviewed the granting of summary judgment de novo and reviewed the record of the agency’s action under the arbitrary and capricious standard.

First, Alaska Wilderness League argued BSEE’s approval of the OSRPs was arbitrary and capricious because Shell assumed it would be able to recover ninety to ninety-five percent of any oil spilled in either of the seas via mechanical means. A figure that Alaska Wilderness League claimed was unrealistic and that Shell failed to support with any evidence. The Court did not agree with Alaska Wilderness League’s interpretation, finding instead that Shell could store, not recover, ninety to ninety-five percent of any spilled oil. Further, the Court found that BSEE did not rely on this information in approving Shell’s OSRPs. Therefore, the Court found that the record did not support Alaska Wilderness League’s argument. Accordingly, the Court concluded BSEE’s approval of the OSRPs was not arbitrary and capricious.

The Court next addressed Alaska Wilderness League’s argument that BSEE failed to consult with other agencies in order to comply with the Endangered Species Act (“ESA”). The Court disagreed. The Court reasoned that ESA only triggers consultation when the agency’s involvement is discretionary, and, in this case, BSEE’s approval of the OSRPs was non-discretionary. Therefore, the Court held that ESA did not require BSEE to do a consultation.

The Court then went through a two-step Chevron deference analysis to assess BSEE’s interpretation of the applicable sections of the CWA. At step one of its Chevron analysis, whether the statute in question is ambiguous, the Court found that the CWA was ambiguous in both its structure and its language. The Court found the CWA has ambiguous language because of three pertinent sections: (i) 33 U.S.C. § 1321(j)(5)(A)(i) requires an operator to “prepare and submit . . . a plan for responding, to the maximum extent practicable, to a worst case discharge;” (ii) § 1321(j)(5)(D) lists six requirements that the OSRP “shall” meet; and (iii) § 1321(j)(5)(E)(iii) states that if the OSRP meets all six requirements, then BSEE “shall” approve it.

Specifically, the Court found the text ambiguous as to whether BSEE has the discretion to consider any additional environmental factors in making its determination of an OSRP. The Court found that the “maximum extent practicable” language in § 1321(j)(5)(A)(i) suggested the agency had discretion in its approval of an OSRP. However, the Court also found §§ 1321(j)(5)(D) and 1321(j)(5)(E)(iii) to be a laundry list of requirements that an OSRP must meet. If an OSRP meets those requirements, then BSEE must approve the plan; removing any agency discretion. Additionally, the Court found the statute’s structure ambiguous because of the discretionary language in one section, and the rigid language in the one following it. The Court found this difference created “a statute whose halves do not correspond to each other – giving rise to ambiguity that calls for Chevron deference.” Under this finding of ambiguity, the Court found it must defer to BSEE’s interpretation of the statute as long as its interpretation is reasonable.

The Court then underwent the second step of the Chevron analysis to determine whether BSEE’s interpretation was reasonable. Courts must defer to an agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. The Court found that BSEE’s interpretation of the statute was reasonable. BSEE argued that § 1321(j)(5)(A)(i) mandated it to promulgate regulations that help operators follow the OSRP requirements listed in § 1321(j)(5)(D). Then, separately, § 1321(j)(5)(D)-(E) lists exactly what the OSRP shall include and the agency shall approve. The Court agreed with BSEE’s interpretation that the statute mandated the agency to publish regulations to outline how operators can comply with the list. The Court also agreed with BSEE’s interpretation that it could not consider anything more than the list when granting an OSRP. The Court, having found BSEE’s interpretation to be reasonable, deferred to the agency’s interpretation.

The Court also found that BSEE’s interpretation was consistent with longstanding agency policy. The Court explained how BSEE has a history of regulating in conformity with the goals of the Oil Pollution Act that amended the CWA. The legislative history of the Oil Pollution Act suggests that Congress meant to create specific requirements of OSRPs, not guidelines open to interpretation by the courts or agencies.

Lastly, the Court addressed Alaska Wilderness League’s four additional arguments. First, Alaska Wilderness League argued that the similarity in language between the requirements listed in § 1321(j)(5)(E) and the section of the statute governing federal response plans to spills subjected the approval of OSRPs to ESA consultation. However, the Court disagreed with this interpretation. Under the sections of the statute governing federal response plans, an ESA recommendation may prompt agency action, but the plan “shall include, but not be limited to” a number of factors. This federal response plan requirement, unlike that in § 1321(j)(5)(E), does not limit the factors to those listed.

Second, Alaska Wilderness League argued that the regulations contain no language to support approval of the OSRPs just because they address the clean up plan to some degree. The Court quickly dismissed this argument. The Court found that the statute states that the purpose of the OSRP is to prepare a response plan for an accident at sea resulting in release of oil, and that Congress ordered these plans be in compliance with “the Oil Pollution Act’s amendments to the Clean Water Act.” The Court deferred to BSEE’s interpretation that the OSRPs were sufficient and justly approved, despite any explicit language governing BSEE’s decision.

Third, Alaska Wilderness League argued that BSEE had discretion over whether OSRPs met the criteria in § 1321(j)(5)(E), thus triggering ESA consultation. The Court found this argument to be at odds with previous Supreme Court’s rulings. The Supreme Court previously held that “ESA cannot defeat an agency’s nondiscretionary statutory directive.” The Court held that BSEE’s act of granting OSRPs was nondiscretionary, and so it did not trigger any interagency review under ESA.

Lastly, Alaska Wilderness League claimed that BSEE violated the National Environmental Policy Act (“NEPA”) by failing to do an environmental impact statement (“EIS”) before approving the OSRPs. Under NEPA, all federal agencies must conduct an EIS before conducting any “major Federal action” that significantly affects the environment. However, the Court noted that there is an exception to this requirement when the environmental impact is the result of a decision over which the agency had no discretion. The Court ruled that because BSEE had no discretion over the approval of the OSRPs under the statute, it also had no discretion over the environmental impacts, making BSEE exempt from performing an EIS.

Accordingly, the Court affirmed the district court’s ruling.

D.W. Nelson, Senior Circuit Judge, dissenting.

Senior Circuit Judge Nelson agreed with the majority’s ruling that BSEE acted appropriately when it approved the OSRPs in question, but dissented to all other aspects of the majority opinion. Specifically, the dissent agreed with Alaska Wilderness League’s contention that BSEE’s action was discretionary, triggering an ESA consultation.

The dissent also disagreed with the majority’s finding that BSEE was exempt from performing a NEPA analysis. The dissent did not agree with the majority’s interpretation of the NEPA exception. The dissent argued that as a regulator of environmental consequences “the [BSEE] did in fact possess the kind of discretion that necessitated NEPA review.”

William James Tilton

Image: Deepwater Horizon oil spill, Gulf of Mexico. Flickr user Green Fire Productions, Creative Commons.