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BOARD OF EDITORS

Editors-in-Chief

Andrew Gorder

Katharine Riker

Publication Editors

C. Casey Forbes

Alicia Persaud

Online Publication Editors

Katie Guffin

Kirsten Tuntland

Business Editor

Melissa Fales

Conference Editors

Bradford Dickson

Jennifer Hill-Hart

Tracey Neighbor

Outreach Editor

Rachel Allen

Managing Editor

Ann Harrie

Technology Editor

Claire Yauck Walsh

STAFF

Amanda Anderson

Patrick Beddow

Jessica Demarois

Jesse Froehling

Matt Newman

Joshua Nichols

Matthew Pugh

Dave Whisenand

John Wright

FACULTY ADVISORS

Raymond Cross

Jack R. Tuholske

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CONTENTS

Center for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009) ...............................3

Northern Cheyenne Tribe v. Montana Department of Environmental Quality, 234 P.3d 51

(Mont.2010)..................................................................................................... .............................10

Aspen Trails Ranch, LLC v. Simmons, 230 P.3d 808 (Mont. 2010) ...................................................18

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et. al.,

130 S. Ct. 2592 (2010) .................................................................................................................25

Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010). ..........................................35

Rock Creek Alliance v. U.S. Forest Service, 703 F. Supp. 2d 1152 (D. Mont. May 4, 2010).......43

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Center for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009).

Amanda Anderson

ABSTRACT

The Ninth Circuit affirmed the decision to grant summary judgment to the Fish and

Wildlife Service, upholding MMPA and NEPA regulations. The court found the Service did not

violate MMPA or NEPA in authorizing a period for oil and gas operators to apply to conduct

non-lethal takes of polar bears and Pacific walrus. The Service was not required to address the

possibility that climate change, in addition to the non-lethal takes, may put additional stress on

polar bear populations.

I. INTRODUCTION

In Center for Biological Diversity v. Kempthorne,1 the United States Court of Appeals for

the Ninth Circuit affirmed the decision from the United States District Court for the District of

Alaska granting summary judgment to the United States Fish and Wildlife Service (Service),

upholding Marine Mammal Protection Act (MMPA) and National Environmental Policy Act

(NEPA) regulations.2 The court held the MMPA and NEPA were not violated

3 when the Service

authorized a five-year period for oil and gas operators in the Beaufort Sea on the Northern Coast

of Alaska to apply for “letters of authorization” (LOA) to conduct non-lethal “takes”4 of polar

bears and Pacific walrus.5

II. FACTUAL BACKGROUND

1 Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009).

2 Id. at 706.

3 Id. at 712.

4 “Take” means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16

U.S.C. § 1362(13) (2006). 5 Ctr. for Biological Diversity, 588 F.3d at 705.

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In 2006, the Service announced new regulations under the MMPA that authorized a five-

year period in which oil and gas operators along the Beaufort Sea could apply for a one-year

LOA to conduct non-lethal takes of polar bears and Pacific walrus.

6 Similar regulations had

been announced six times since 1993.7

Before announcing the 2006 regulations, the Service evaluated the impacts of the oil and

gas industry on polar bears and Pacific walrus.8 The Service found that while industrial oil and

gas production may negatively affect polar bears, the impact would be negligible and would

likely be consistent with past periods of regulation.9 The same report found that Pacific walrus

are uncommon in the Beaufort Sea, and the impact on them would also be negligible.10

The

Service produced an environmental assessment (EA) but not an environmental impact statement

(EIS).11

III. PROCEDURAL BACKGROUND

In February 2007, the plaintiffs, Pacific Environment and the Center for Biological

Diversity, filed this action against the Service alleging the 2006 regulations violated MMPA and

NEPA.12

The district court granted summary judgment to the Service, concluding that the

Service‟s 2006 MMPA and NEPA regulations were not arbitrary or capricious. The court found

that both polar bears and Pacific walrus are potentially susceptible to climate change due to

6 Ctr. for Biological Diversity, 588 F.3d at 705.

7 Id. at 706.

8 Id.

9 Id.

10 Id.

11 Here, the Service‟s environmental assessment was designed to “evaluate the impact of issuing incidental take

regulations as opposed to permitting industrial activities in the absence of such regulation.” (Internal quotations

omitted.) Id. 12

Id.

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changes in ice pack habitat and available food resources.13

However, the threat of climate

change was not emphasized in the court record.14

The plaintiffs appealed the decision.

IV. ANALYSIS

The Ninth Circuit Court of Appeals affirmed the district court's decision granting

summary judgment to the Service.15 On appeal, the issues included: (1) Article III16 standing,

(2) ripeness, (3) the definition of “specified activity” under the MMPA, (4) the Service‟s finding

of negligible impact under the MMPA, (5) the Service‟s finding of no significant impact under

NEPA, and (6) the Service‟s failure to produce an EIS.

The appellants established Article III standing17 because the alleged injury was

geographically specific, imminent, and caused by the Service‟s NEPA and MMPA regulations.18

Though the Service did not raise standing in the district court, the “jurisdictional issue of

standing can be raised at any time.”19 To demonstrate standing, plaintiffs must “allege an injury

in fact to show [there is] a personal stake in the outcome of the controversy.”20 An individual

interest in observing a species and its habitat is sufficient to confer standing, while generalized

harm to the environment is not.21 Additionally, an organization can state the interests on behalf

of its members.22 Because the appellants alleged a specific injury on behalf of their individual

members, they had standing.23

13

Id. at 705. 14

Id. at 706. 15

Id. at 712. 16

U.S. Const. art. III, § 1. 17

The three elements of standing are: (1) an injury in fact, (2) causation, and (3) it is likely that “the injury will be

redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 18

Ctr. for Biological Diversity, 588 F.3d at 708. 19

Id. at 707. 20

Id. 21

Id. 22

Id. 23

Id. at 708.

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The appellants‟ claims were ripe24 for review because the issues were primarily legal, did

not require additional fact finding, and the Service‟s 2006 regulation was final.25 Ripeness, like

standing, was not raised in district court but can be plead at any time.26 Whether an agency‟s

action is arbitrary and capricious is a legal question, so the appellants did not need to challenge a

specific LOA.27 Because the 2006 regulations last for only five years and there is an inherent

delay in litigation, the court articulated that the appellants could be disadvantaged if review was

denied.28

“Oil and gas exploration, development, and production activities,”29 as defined in the

2006 regulations, were narrowly enough defined to qualify as a “specified activity” under the

MMPA.30 Appellants argued that the activities listed in the regulations were not “substantially

similar” and were too broad to qualify as one “specified activity.”31 The legislative history of the

MMPA equates “specified activity” to activities that are “narrowly identified so that the

anticipated effects will be substantially similar.” 32 The Service defined “specified activity” in

the same way, and the definition was not arbitrary or capricious.33 The Service defined all oil

and gas activity in the Beaufort Sea to be substantially similar with negligible impact.34

Appellants did not show that the oil and gas activities listed in the 2006 regulation needed to be

classified by more than one “specified activity” because there were dissimilar impacts.35

24

A claim is ripe “if the issues raised are primarily legal, do not require further factual development, and the

challenged action is final.” U.S. West Commun. v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999). 25

Ctr. for Biological Diversity, 588 F.3d at 708. 26

Id. 27

Id. 28

Id. at 709. 29

Id. 30

Id. 31

Id. 32

1981 U.S.C.C.A.N. 1458, 1469. 33

Ctr. for Biological Diversity, 588 F.3d at 709. 34

Id. 35

Id.

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The Service‟s finding of negligible impact under MMPA was not arbitrary and capricious

because the Service made scientific predictions within the scope of its expertise.36 The court

concluded that the relationship between industrial oil and gas activities and the weakened fitness

of polar bears due to climate change was speculative.37 To find a “negligible impact,” the

Service must analyze the effects that are “reasonably expected” or “reasonably likely,” but the

Service is not required to analyze effects that are unproven or speculative.38 Since the

relationship between weakened physical fitness of polar bears and industrial activities was

speculative, it did not matter if the Service analyzed the effects.39 Failure to analyze the effects

of the oil and gas development and polar bear weakness due to climate change was unimportant

under MMPA, and the Service did not act arbitrarily or capriciously when it found negligible

impact for the 2006 regulations.40

The court held the Service‟s finding of no significant impact was not arbitrary and

capricious under NEPA because the Service‟s EA did acknowledge climate change and the oil

and gas industry‟s effect on polar bear populations.41 NEPA requires agencies to supply

convincing reasons to explain why the impacts of a project are insignificant if the agency issues a

finding of no significant impact.42 Here, the court agreed with the district court and determined

that climate change generally threatens polar bear populations.43 The authorization of non-lethal

takes while generalized climate change threats exist was not likely to have significant impacts on

36

Id. at 711. 37

Id. 38

50 C.F.R. § 18.27(c) (2010). 39

Ctr. for Biological Diversity, 588 F.3d at 710. 40

Id. at 711. 41

Id. 42

Id. 43

Id.

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polar bear populations.44 The Service addressed climate change and oil and gas production

considerations in the EA and considered the consequences of its actions.45

The court held that the Service did not commit clear error under NEPA in deciding not to

produce an EIS even though there was some uncertainty in predicting the impacts of the 2006

regulations.46 An EIS is required under NEPA when the effects of a project are “highly

uncertain or involve unique or unknown risks.”47 For regulations to be enforceable, an EIS must

be produced when the effects of a project are “highly” uncertain, not when there is only some

uncertainty.48 The court determined there was some uncertainty in authorizing the 2006

regulations for non-lethal takes, but that uncertainty did not meet the statutory level of “highly

uncertain” because the Service made predictions based on past data.49 The Service made

predictions within the scope of its expertise and did not act arbitrarily in deciding not to produce

an EIS.50

V. CONCLUSION

Center for Biological Diversity v. Kempthorne highlights the interplay between scientific

uncertainty and agency decision-making. The Service addressed climate change and non-lethal

takes in the EA, but the topics were not addressed together because the effects were unclear. The

court allowed the Service to strategically ignore the possibility that additional stress may be

placed on polar bear populations by the combination of climate change and non-lethal takes.

However, in the future, the court may revisit the relationships between wildlife and climate

44

Id. at 712. 45

Id. 46

Id. 47

40 C.F.R. § 1508.27(b)(5) (2010). 48

Ctr. for Biological Diversity, 588 F.3d at 712. 49

Id. 50

Id.

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change. Additional changes in climate may require the Service to more specifically address the

effects of non-lethal takes by oil and gas activities on threatened or endangered species.

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Northern Cheyenne Tribe v. Montana Department of Environmental Quality,

2010 MT 111, 356 Mont. 296.

Pat Beddow

ABSTRACT

Northern Cheyenne Tribe v. Montana Department of Environmental Quality addressed the

supremacy of standards within the Clean Water Act over Montana‟s state imposed water quality

standards. The Montana Supreme Court found the Montana Department of Environmental

Quality‟s water quality standards violated the Clean Water Act‟s requirement to use pre-

discharge treatment for coal bed methane wastewater released into the Tongue River. This

decision is likely to be persuasive to other states imposing their own regulations on the discharge

of pollutants into waterways.

I. INTRODUCTION

The Northern Cheyenne Tribe is a federally recognized Indian tribe residing in

southeastern Montana along the Tongue River.51

In Northern Cheyenne Tribe v. Montana

Department of Environmental Quality, the Montana Supreme Court addressed the issue of

whether discharge permits issued without requiring any pre-discharge treatment standards

violated the Clean Water Act (CWA) or the Montana Water Quality Act (MWQA).

II. FACTUAL BACKGROUND

The Tongue River originates in Wyoming and flows north through southeastern Montana

to its confluence with the Yellowstone River near Miles City, Montana.52

The Northern

Cheyenne Tribe, members of the Tongue River Water Users‟ Association, and the Northern

Plains Resource Council (NPRC) rely on the water from the Tongue River for irrigation,

51

Cheyenne Tribe v. Mont. Dept. of Envtl. Quality, 2010 MT 111, ¶¶ 1, 4, 356 Mont. 296, 234 P.3d 51. 52

Id. at ¶ 4.

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stockwater, recreation, and other uses.53

Fidelity Exploration & Production Company (Fidelity)

extracts Coal Bed Methane (CBM) in the vicinity of the Tongue River for commercial sale.54

CBM is a form of natural gas that is produced and stored in coal beds.55

The pressure

from groundwater surrounding the coal bed effectively traps CBM in the coal seam.56

When

CBM is extracted, a significant amount of water is unavoidably drawn to the surface as a result.57

Fidelity disposed of this groundwater by releasing it into the Tongue River.58

The groundwater has high saline content.59

The salinated water from CBM production is

classified as a pollutant in the CWA.60

Because of the saline content and nature of the water‟s

disposal, the plaintiffs were concerned about the adverse effects that might result from the

agricultural uses of the water and to the river system itself.61

Due to CBM water‟s classification as a pollutant, Fidelity was required to obtain a

National Pollutant Discharge Elimination System (NPDES) permit before discharging it into the

Tongue River.62

These permits are issued by the Environmental Protection Agency (EPA) or an

EPA-approved state agency.63

The Montana Department of Environmental Quality (DEQ)

administers such permits through the Montana Pollutant Discharge Elimination System

(MPDES).64

53

Id. 54

Id. 55

Id. at ¶¶ 5-6. 56

Id. at ¶ 5. 57

Id. 58

Id. 59

Id. at ¶ 6. 60

Id. (referencing 33 U.S.C. § 1362(6) (2006); N. Plains Resource Council v. Fidelity Exploration & Dev. Co., 325

F.3d 1155, 1160 (9th Cir. 2003)). 61

Id. at ¶ 5. 62

Id. at ¶ 7. 63

Id. 64

Id. (pursuant to Mont. Code Ann. § 75-5-402 (2009); Admin. R. Mont. 17.30.101 (2009)). Mont. Code Ann. § 75-

5-211 authorizes the administration of permits by DEQ through MPDES.

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Fidelity discharged untreated CBM water into the Tongue River without a permit in

August 1998 and continued until June of 2000.65

DEQ approved this practice pursuant to

Section 75-5-401(1)(b) of the Montana Code Annotated, which allows for the discharge of CBM

water as long as it does not alter the ambient water quality so as to exceed the concentration

parameters for a particular body of water.66

In 1998, the EPA notified DEQ that the Montana

statute conflicted with the CWA and demanded that the exemptions be revoked; DEQ did not

take any action.67

Nonetheless, Fidelity filed for MPDES permits in January of 1999.68

NPRC

filed an action against Fidelity in June of 2000, challenging Fidelity‟s compliance with the

NPDES permitting requirements.69

Soon after, DEQ issued Fidelity a permit to release untreated

CBM water into the Tongue River despite earlier decisions that a permit was not required.70

In

2004, Fidelity applied for a second permit and a renewal of the 2000 permit.71

DEQ approved

both of Fidelity‟s applications in 2006.72

Under the second permit, Fidelity was required to treat part of the wastewater and blend it

with untreated wastewater prior to discharge.73

DEQ enforced discharge limitations by imposing

water quality standards.74

The water quality standards were based on the change in ambient

water quality downstream from the discharge site.75

Water quality standards under the MWQA

are created by the Montana Board of Environmental Review (BER).76

In 2003, BER set a water

quality standard specifically for the discharge of the water produced as a result of CBM, stating

65

Id. at ¶ 8. 66

Id. (discussing Mont. Code Ann. § 75-5-401(1)(b)). 67

Id. 68

Id. at ¶ 9. 69

Id. 70

Id. 71

Id. 72

Id. at ¶ 10. 73

Id. 74

Id. at ¶ 11. 75

Id. 76

Id. at ¶ 13. The Board is authorized to set these standards under Mont. Code Ann. §§ 75-5-201, 75-5-305.

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that the discharge was considered “nonsignificant” if it did not have a measureable effect on the

existing uses of the receiving waterway.77

Both 2006 permits were evaluated and approved

using this 2003 rule.78

At the time, BER was revamping its standards, however, it did not

impose pre-discharge, technology based standards because they would be too costly and

unfeasible; instead BER established “harmful parameters” of discharge in the waterways.79

BER

adopted the new rule one month after the permits were issued to Fidelity.80

III. PROCEDURAL BACKGROUND

The plaintiffs filed this lawsuit on April 3, 2006, challenging DEQ‟s issuance of the

discharge permits to Fidelity, claiming DEQ violated the CWA and the MWQA by not imposing

pre-discharge standards on both permits.81

Both parties filed motions for summary judgment in

the Montana Twenty-Second Judicial District Court, Big Horn County.82

The court concluded

that the water quality standards were in compliance with the MWQA and entered summary

judgment in favor of the defendants, DEQ and Fidelity, on all counts.83

The primary issue on

appeal was whether DEQ violated the CWA or the MWQA by issuing discharge permits without

imposing pre-discharge treatment standards.84

IV. ANALYSIS

The Montana Supreme Court analyzed the issue in two parts. First, the Court analyzed

the CWA to determine whether its application was discretionary by states.85

Next, the Court

77

Id. at ¶¶ 13-14 (discussing 40 C.F.R. § 131.12(a)(2) (2010); Mont. Code Ann. §75-5-303). 78

Id. at ¶ 15. 79

Id. 80

Id. 81

N. Cheyenne Tribe v. Mont. Dept. of Envtl. Quality, 2008 Mont. Dist. LEXIS 647 (Mont. 22d Dist. Big Horn Co.

Dec. 8, 2008). 82

Id. at ¶ 17. 83

Id. 84

Id. at ¶ 20. 85

Id. at ¶ 24.

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considered whether the CWA imposed the same requirements on states that implemented their

own permitting systems for discharge.86

A. Discretion in the CWA

The Court noted that the CWA was enacted in 1948 with the goal of restoring “the

chemical, physical, and biological integrity of the Nation‟s waters” by eliminating the discharge

of pollutants.87

The Court found that the NPDES delegated the authority to regulate the

discharge of pollutants through permitting.88

In 1972, Congress amended the CWA and

implemented pre-discharge treatment standards for the discharge of pollutants into waterways.89

This commitment was reaffirmed in 1985, when the CWA was again amended.90

Congress

reasoned that pre-discharge standards would serve to better regulate individual polluters, and in

turn provide for more adequate control over the discharge of pollutants.91

The Court determined that Section 402(a) of the CWA92

grants the administrator of the

NPDES the authority to issue permits subject to the limitations imposed by Section 301.93

Section 1311 states that the discharge of pollutants is unlawful unless otherwise accepted within

the Section.94

Pre-discharge treatment standards are required in the absence of federal

guidelines.95

Furthermore, new sources of pollution must use the best available technology

(BAT) to control the discharge of pollutants.96

86

Id. at ¶ 32. 87

Id. at ¶ 21 (citing 33 U.S.C. § 1251(a)). 88

Id. (citing 33 U.S.C. § 1342). Although the discharge of pollutants is generally unlawful under 33 U.S.C. § 1311,

§ 1342 provides an exception where NPDES may authorize discharge as long as it falls within other limitations

imposed by the CWA. 89

Id. at ¶ 22. 90

Id. at ¶ 23. 91

Id. at ¶ ¶ 22-23. 92

Found at 33 U.S.C. § 1342. 93

N. Cheyenne Tribe, ¶ 28. 94

Id. at ¶ 29 (citing 33 U.S.C. § 1311(a)). 95

Id. (citing 33 U.S.C. § 1311(b)(1)(A)-(2)(A)). 96

Id. (citing 33 U.S.C. § 1316(a)(1)-(2)).

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The administrator may set effluent limitations for either an entire industry, or on an

individual basis for each permit issued.97

In the individual situations where the EPA has not

designated any discharge standards, the administrator‟s “best professional judgment” determines

the BAT for pre-discharge treatment standards.98

The administrator considers case-by-case, the

costs and benefits of the BAT, as well as the other environmental impacts of implementing the

technology to determine appropriate control measures and standards.99

The administrator then

has a non-discretionary duty to enforce the standards.100

The Court noted that during the entire period in which Fidelity had applied for and

received discharge permits, the EPA had not established any guidelines for CBM.101

Therefore,

the administrator was to make a case-by-case determination of the BAT and standards for pre-

discharge treatment.102

The Court again emphasized that Section 1311 of the CWA required pre-

discharge treatment standards in every NPDES permit issued under Section 1342.103

B. State Mandates

The Court found that the plain language in the CWA stated that Section 1311 represented the

minimum requirements necessary to issue a permit under Section 1342.104

Fidelity, however,

contended that Washington v. EPA,105

held that states did not have to follow pre-discharge

treatment standards until the EPA established industry wide standards.106

The Court noted that

in 1979, the EPA reacted to Washington, and provided that “permit writers” impose pre-

97

Id. at ¶ 25 (citing 33 U.S.C. § 1342(a)(1)(A)-(B)). 98

Id. (citing Texas Oil & Gas Assn. v. EPA, 161 F.3d 923, 928-29 (5th Cir. 1998)). 99

Id. at ¶ 26 (citing 33U.S.C. § 1314(b)(1)(B); Texas Oil & Gas, 161 F.3d at 928-29). Factors including the age of

the equipment, process employed, engineering aspects, process changes, and non-water quality environmental

impact are to be considered regardless of whether the EPA or a State issues a permit. 40 C.F.R. § 125.3(c)-(d)

(2010). 100

Id. at ¶ 30 (citing PUD No. 1 of Jefferson Co. v. Wash. Dept. of Ecology, 511 U.S. 700, 704 (1994)). 101

Id. at ¶ 27 (citing 74 Fed. Reg. 68599, 68607 (Dec. 28, 2009)). 102

Id. at ¶ 30. 103

Id. at ¶ 31. 104

Id. at ¶ 33. 105

573 F.2d 583 (9th Cir. 1978). 106

N. Cheyenne Tribe, ¶ 34.

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discharge treatment standards on a case-by-case basis.107

The EPA specifically stated that it

intended the pre-discharge standards to apply to states, believing that it had been misinterpreted

in the past, so as to only apply to NPDES permits.108

Furthermore, the comment to 40 C.F.R §

125.3(c) stated that the “permit writer” may be either the EPA or a state.109

The Court found that

the clear intent of the EPA‟s promulgations was that DEQ “stand in the shoes” of the

administrator and adhere to the same requirements in issuing discharge permits.110

Despite DEQ‟s arguments that “more stringent” water quality standards may be used in

place of pre-discharge standards, the Court found that the two represented clearly distinct

functions.111

The Court declined to accept that water quality standards could be more stringent

than pre-discharge standards, especially in light of the EPA‟s mandate that a state must, at a

minimum, impose pre-discharge standards.112

The Court found that in addition to the EPA‟s

requirement that states adopt their standards, DEQ had specifically done so in the Administrative

Rules of Montana.113

Lastly, the Court declined to accept DEQ‟s contention that only BER could adopt

technology based limitations on discharge.114

However, the Court found that BER could only

adopt industry-wide technology based limitations when they had not yet been established by the

EPA.115

For that reason, nothing was found to prohibit DEQ from establishing pre-discharge

107

Id. at ¶ 35 (citing 40 C.F.R. § 125.3 (2010)). 108

Id. (citing 44 Fed. Reg. 32854, 32893 (Jun. 7, 1979)). 109

Id. (citing 40 C.F.R. § 125.3(c) (2010)). 110

Id. at ¶ 37. 111

Id. at ¶ 40. 112

Id. at ¶ 42-43 (citing 40 C.F.R. § 125.3(a) (2010)). 113

Id. at ¶ 44 (referencing Admin. R. Mont. 17.30.1303, 17.30.1340(10) (2009)). 114

Id. at ¶ 45. DEQ based this presumption on Mont. Code Ann. § 75-5-305(1). 115

Id.

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treatment standards on a case-by-case basis.116

Fidelity‟s permits were declared void, and DEQ

was given 90 days to re-evaluate the applications under pre-discharge standards.117

V. CONCLUSION

Ultimately, the decision in Northern Cheyenne Tribe v. Montana Department of

Environmental Quality delivers a definitive resolution to those seeking a more concrete measure

of the discharge limitations into Montana waterways. This decision enunciates the requirement

that states follow the CWA by standing in the shoes of the EPA while issuing permits for the

discharge of pollutants. The pre-discharge standards represent a compromise for both the

producers and those affected by CBM production. Tracing pollutants back to a single source may

be done with a more competent approach because pre-discharge standards are easier to measure

than water quality standards. Through pre-discharge standards, CBM producers must now

actively pre-determine their discharges, as opposed to reacting to water quality standards. As

technology improves, the standards for pre-discharge treatment are likely to result in more

stringent criterion. For that reason, producers can anticipate tightening restrictions and plan

accordingly when applying for discharge permits.

116

Id. 117

Id. at ¶ 47.

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Aspen Trails Ranch, LLC v. Simmons, 2010 MT 79, 356 Mont. 41, 230 P.3d 808.

Jessica DeMarois

ABSTRACT

This case decision carries a strong message from the Montana Supreme Court to local planning

bodies and aspiring developers. Environmental assessments included in subdivision proposals must

conform with the provisions of the Montana Subdivision and Platting Act by providing all available

information on the proposed development‟s potential impacts to natural resources in the area. Without

such data, planners are unable to take a “hard look” at the proposal and thus any plat approval will be

deemed “arbitrary and capricious or unlawful” by the court if challenged by area landowners who stand to

be harmed by the development.

I. INTRODUCTION

Aspen Trails Ranch, LLC v. Simmons118

represents the affirmation of a recent shift in Montana‟s

judicial attitude toward land use planning. In this case, the Montana Supreme Court affirmed a district

court decision to overturn approval of a preliminary subdivision plat near Helena based on inadequate

investigation of the proposed site‟s impacts on the area‟s watershed.119

The Court found area landowners,

both with and without property adjacent to the site, had standing to sue based on possible adverse effects

to water quality and the site‟s rural landscape.120

This decision sent a message to local planning bodies

and developers that: (1) the guidelines of the Montana Subdivision and Platting Act (MSPA) must be

118

Aspen Trails Ranch, LLC v. Simmons, 2010 MT 79, 356 Mont. 41, 230 P.3d 808. 119

Id. at 821. 120

Id. at 818.

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closely adhered to; and (2) the courts will demand that planning bodies provide evidence that under the

“hard look” standard, a plat approval was not unlawful, arbitrary, or capricious.121

II. FACTUAL BACKGROUND

In August 2005, developer Richard Bowen filed an application for subdivision approval with the

Helena City Commission (Commission).122

He planned to build 325 residences on a 260-acre parcel

north of Helena along Prickly Pear Creek.123

Prickly Pear Creek flows into Lake Helena and ultimately

into the Missouri River.124

The parcel is in a rural area that contains wetlands.125

In most places, the

water table under the site is extremely high, averaging two to ten feet below the surface.126

Bowen‟s plan was for the “Aspen Trails Ranch” subdivision to be annexed to the city of Helena‟s

sewer and water systems.127

Along with his application, Bowen submitted a fifty-three page

Environmental Assessment (EA), which included a community impact assessment and a summary of

proposed mitigation measures to offset anticipated impacts from building a development of the size

proposed in the area of the site.128

The City of Helena‟s Planning Division also submitted a staff report

on the proposed development outlining twenty-seven conditions to mitigate adverse impacts to

agriculture, the natural environment, wildlife, public health, and other areas of concern highlighted in

their findings of fact.129

After reviewing the EA and staff report, and taking public comment on the proposed subdivision,

the Planning Board denied the application based on the impossibility of mitigating the project‟s impacts

121

Id. at 820 (citing Clark Fork Coalition v. Mont. Dept. of Envtl. Quality, 2008 MT 407, 347 Mont. 197, 197 P.3d

482). 122

Id. at 811. 123

Id. 124

Id. 125

Id. 126

Id. at 812. 127

Id. at 811. 128

Id. 129

Id.

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on the natural environment, wildlife, and wildlife habitat.130

The Commission then held a public meeting

and voted to approve the preliminary plat, despite concerns voiced by contiguous landowners and

Commission members about the high groundwater table and flood potential in the area.131

The

Commission reasoned that any potential adverse impacts could be mitigated by the twenty-seven

conditions of approval it imposed.132

Immediately after the Commission‟s decision to approve the

preliminary plat, three area landowners filed suit against the Commission in district court, challenging its

decision to approve the preliminary plat on the grounds that the proposed subdivision would have

substantial and significant impacts on ground and surface water, as well as area wildlife habitat.133

III. PROCEDURAL HISTORY

The Commission moved to dismiss the complaint, alleging that the landowners lacked standing to

sue.134

The district court denied the motion, noting that at least one landowner had standing under the

MSPA, which expressly allows Commission decision appeals by contiguous landowners.135

The non-

adjacent landowners were allowed to piggyback on that standing.136

The court further noted that the

harms alleged by the plaintiff landowners in their first amended complaint failed to tie directly to an

action taken by the Commission.137

The landowners were thus allowed to file a second amended

complaint incorporating specific allegations of harm that were previously set forth in a supplemental

affidavit.138

The landowners alleged that neither the EA nor the staff report adequately addressed possible

impacts resulting from the proposed subdivision.139

Specifically, they claimed the EA did not address

130

Id. 131

Id. 132

Id. 133

Id. at 811-812. 134

Id. at 811. 135

Id. at 811-812 (citing Mont. Code Ann. § 76-3-625(3) (2009)). 136

Id. at 818 (citing Clinton v. City of New York, 524 U.S. 417 (1998)). 137

Id. at 812. 138

Id. 139

Id.

Page | 21

impacts to water quality in the Lake Helena watershed from the proposed subdivision.140

The landowners

further argued that the Commission‟s findings of fact for conditional approval did not adequately describe

the potential impacts of the development, especially with regard to wildlife, water quality, and

flooding.141

At an evidentiary hearing on the matter, the landowners‟ primary contention was that the EA

failed to comply with the MSPA, which requires an EA to include “available groundwater

information.”142

While the EA noted that the groundwater table on the proposed site was very high, two

to ten feet below ground, it failed to include data from an available USGS report on the area or data

obtained from monitoring wells on the site.143

The landowners‟ expert testified that without this type of

baseline information the impacts on groundwater from a development of the proposed size could not be

adequately anticipated or mitigated.144

The landowners further contended that neither the staff report nor

the EA addressed the non-point source pollution impacts on the watershed from pesticides, fertilizers, and

other household sources.145

They argued these impacts would be significant from a development of the

size planned.146

The district court reviewed the complaint under the “arbitrary and capricious or unlawful”

standard set forth in Kiely Construction, LLC v. City of Red Lodge.147

The court noted that the MSPA

required the Commission to consider the developer‟s application, the preliminary plat, the EA, public

comment, and the Planning Board‟s recommendations in reaching a decision.148

The MSPA requires the

EA to contain information including:

(a) a description of every body or stream of surface water that may be affected by the

140

Id. 141

Id. 142

Id. at 812-813 (citing Mont. Code Ann. § 76-3-603(1)(a)). 143

Id. at 812, 814. 144

Id. at 812. 145

Id. at 813. 146

Id. 147

Id. (citing Kiely Const., LLC v. City of Red Lodge, 2002 MT 241, 312 Mont. 52, 57 P.3d 836). 148

Id. (citing Mont. Code Ann. §76-3-608(1)).

Page | 22

proposed subdivision, together with available ground water information, and a

description of the topography, vegetation, and wildlife use within the area of the

proposed subdivision; [and]

(b) a summary of the probable impacts of the proposed subdivision based on the criteria

described in 76-3-608.149

The district court, citing Montana Code Annotated § 76-3-608(3)(a) of the MSPA, also stated that one of

the primary reviewing criteria was the impact of the subdivision on the natural environment.150

The district court then considered the appropriate standard under which to analyze the

Commission‟s review of the EA and adopted the “hard look” standard set forth in Clark Fork Coalition v.

Montana Department of Environmental Quality in 2008:

In other words, the Court looks closely at whether the agency has taken a hard look

at the question presented. The Court does not take a hard look itself but requires that

the agency does so. The Court focuses on the validity and appropriateness of the

administrative decision making process without intense scrutiny of the decision

itself. In this way, the Court examines the elements of the decision without

interfering with the administrative authority over the decision itself.151

The district court concluded that the information contained in the EA regarding groundwater at the site

was inadequate to allow the Commission to take a “hard look” at impacts on water quality.152

The court

noted that the information was so incomplete that sewer pipes could plausibly be placed directly into

groundwater, increasing the risk of leakage and contamination of Prickly Pear Creek.153

The EA also

failed to address the impact of surface water pollutants on the watershed.154

The district court concluded

that the approval of the preliminary plat was unlawful under the MSPA for failure to provide available

149

Id. (quoting Mont. Code Ann. §76-3-603(1)). 150

Id. 151

Id. at 813-814 (quoting Clark Fork Coalition, 197 P.3d at 493-494). 152

Id at 814. 153

Id. 154

Id.

Page | 23

groundwater information, and arbitrary and capricious insofar as it failed to consider the impacts of

surface water pollution from the subdivision.155

The Commission declined to challenge the district

court‟s decision, and Aspen Trails, LLC was allowed to intervene for purposes of the appeal.156

IV. MONTANA SUPREME COURT HOLDING AND ANALYSIS

The Montana Supreme Court dealt with three issues on appeal. It swiftly concluded that the

district court properly allowed Aspen Trails, LLC to intervene on appeal,157

and that the district court

properly allowed the suit to move forward based on at least one landowner‟s statutory right to challenge

approval of the plat.158

The Court then turned to the substantive issue on appeal, whether the record

established that the governing body acted arbitrarily, capriciously, or unlawfully in accordance with the

district court‟s conclusions.159

The Court concluded that the district court did not err in allowing the

landowners‟ expert to testify at the evidentiary hearing pursuant to its holding in Skyline Sportsmen’s

Association v. Board of Land Commissioners.160

It further held that the district court properly analyzed

the actions of the Commission under the “hard look” standard set forth in Clark Fork Coalition in

deciding whether the Commission‟s ultimate decision was arbitrary, capricious, or unlawful.161

Finally,

the Court held that the district court did not err in concluding that the Commission‟s approval of the

preliminary plat was unlawful for failure to provide adequate groundwater information under the MSPA

and that it was arbitrary and capricious for failure to consider surface water pollution impacts created by

the subdivision.162

Therefore, the Court concluded that the district court‟s decision to void the plat was

not erroneous.163

The remedy was correct under the MSPA, and the developer had the ability to re-apply

155

Id. at 815. 156

Id. 157

Id. at 817. 158

Id. at 818. 159

Id. at 819. 160

Id. at 820 (citing Skyline Sportsmen’s Assoc. v. Bd. of Land Commrs., 286 Mont. 108, 113 951 P.2d 29, 32

(1997)). 161

Id. (citing Clark Fork Coalition, 197 P.3d at 493-494). 162

Id. at 821. 163

Id.

Page | 24

for approval once a more thorough EA was complete.164

V. CONCLUSION

Many of the Montana Supreme Court‟s recent decisions regarding land use planning have

indicated a growing awareness and emphasis on protection of natural resources through careful

development. Under the MSPA, a developer must present a complete and accurate analysis of the

environmental impacts of the proposed development when applying for preliminary plat approval. The

governing body tasked with reviewing and approving applications must take a “hard look” at the

information provided, and after Aspen Trails Ranch, must also demand additional information if that

provided is inadequate to allow informed decision making. Landowners in the area have standing to

challenge an approved plat if they can show that the approval and subsequent development could

adversely impact the environment, water quality, or wildlife habitat in the area. This decision cements a

more encompassing governmental attitude towards land use planning that equates the importance of

protecting Montana‟s valuable natural resources with allowing for future growth and development.

164

Id. at 820-821.

Page | 25

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et.

al., 130 S. Ct. 2592 (2010).

Matt Newman

ABSTRACT

A homeowners association sued the state of Florida to stop a beach restoration project

that would have created seventy-five feet of new beach separating the private homes from the

ocean front. The U.S. Supreme Court rejected the homeowners‟ argument that the project was

an unlawful taking because it would end the homeowners‟ ability to receive new sand deposits

from the ocean onto their private beachfront. The Court held that the Takings Clause of the Fifth

Amendment of the U.S. Constitution applies equally to court orders and decisions of the judicial

branch as it does to actions of the legislative and executive branches.

I. INTRODUCTION

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection

et. al. was delivered by the United States Supreme Court in June of 2010.165

With the exception

of Justice Stevens, who did not participate in the decision of this case, a unanimous court held

that the Florida Department of Environmental Protection‟s (FDEP) effort to restore an eroded

beach did not constitute an unconstitutional “taking” of private beachfront property under the

Fifth Amendment to the U. S. Constitution. Despite the appearance of unanimity however, the

Court was deeply divided in their reasoning, and the opinion was a complicated mix of pluralities

and partial concurrences.

165

Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Protec. et. al., 130 S. Ct. 2592, 2613 (2010) (Kennedy

& Breyer, JJ., concurring in part).

Page | 26

II. FACTUAL BACKGROUND

In 1961, Florida‟s legislature passed the Beach and Shore Preservation Act166

(Act) to

enable local governments to maintain and repair eroded beachfront.167

The Act requires local

governments, wanting to undertake renourishment projects, to apply to the FDEP to obtain

necessary permits and funding.168

If the project requires laying fill material on state-owned

submerged lands, the Board of Trustees of the Internal Improvement Trust Fund (Board), which

is the government entity holding title to the lands, must approve the project.169

Once a project is

underway, the Board designates an “erosion control line,” set by reference to the mean high-

water line on the beach, which is determined by averaging the reach of the high-tide over the

preceding nineteen years.170

This erosion control line distinguishes a private owner‟s beachfront

property from the state‟s trust land.171

Once the erosion control line is set, fill is placed seaward

of the line, creating new beach on previously submerged state land.172

III. PROCEDURAL BACKGROUND

In 2003, Florida‟s city of Destin and Walton County applied to the FDEP for permits to

restore approximately seven miles of beachfront that had been washed out by hurricanes.173

The

project would add seventy-five feet of new beach seaward of the mean high-water line by

applying fill to submerged state trust land.174

The FDEP issued a public notice that it intended to

166

Id. at 2599 (citing Fla. Stat. §§ 161.011-161.45 (2007)). 167

Id. 168

Id. 169

Id. 170

Id. at 2598, 2599. 171

Id. at 2598 (citing Miller v. Bay-To-Gulf, Inc., 141 Fla. 452, 458-460, 193 So. 425, 427-428 (1940)). 172

Id. at 2599. 173

Id. at 2600. 174

Id.

Page | 27

grant the permits, and the Board approved the use of the fill and the creation of the erosion

control line.175

In response, a group of homeowners, whose property bordered the project area, formed a

non-profit corporation named Stop the Beach Renourishment, Inc. (Homeowners) to bring an

administrative challenge to the proposed project.176

After an administrative panel denied the

Homeowners‟ challenge, the case was taken to the Florida District Court of Appeal for the First

District, which held that approval of the project had eliminated the rights of two homeowners to

both receive accretions177

on their property and to have contact between their property and the

water.178

Because the project infringed on these property rights, the district court held that in

issuing the permits the FDEP had performed an unlawful taking of the two homeowners‟ future

accretions.179

After setting aside the approval of the permits, the district court certified to the

Florida Supreme Court the question of whether the Act unconstitutionally deprived upland

property owners of their littoral property rights without just compensation.180

The Florida

Supreme Court held the Act was not unconstitutional and denied the Homeowners‟ request for a

rehearing. The Homeowners then appealed the Florida Supreme Court‟s denial of rehearing to

the United States Supreme Court on the grounds that the Florida Supreme Court‟s decision was

175

Id. 176

Id. 177

Accretions are additions of sand, sediment, or other deposits to water front lands. Traditionally, for land to

qualify as an accretion, it must have formed as a result of a gradual drying that is so slow that the result only

becomes noticeable after many years. When an accretion is formed it is considered to be part of the littoral property

of the private property owner. Id. at 2598 (citing F. Maloney, S. Plager, & F. Baldwin, Water Law and

Administration: the Florida Experience § 126, pp. 385-386 (1968)). 178

Id. at 2600. 179

Id. 180

Id.

Page | 28

itself an unlawful taking and denied the Homeowners‟ property interest in future accretions.181

The United States Supreme Court granted certiorari.182

IV. UNITED STATES SUPREME COURT DECISION

A notable trend in recent U.S. Supreme Court decisions is the increasing delivery of

plurality opinions where the justices join and dissent with one another on a section by section

basis.183

Beach Renourishment is no exception. Indeed, Justice Scalia delivered the opinion of a

unanimous Court; however, concurrences by Justices Kennedy and Breyer and joined by others

evidence the Court‟s unanimous judgment was determined by following very different lines of

reasoning.

Beach Renourishment culminated in two separate but related issues. The first issue was

whether the Florida Supreme Court unlawfully took property without compensation when it held

that the Homeowners‟ property rights to future accretions did not exist.184

The second, and more

divisive, was whether a court of law or other member of the judicial branch can “take” property

under the Fifth Amendment‟s takings clause.185

A. The Florida Supreme Court did not unlawfully take property without compensation

when it held that the Homeowners’ property rights to future accretions did not exist.

181

Id. at 2600-2601. 182

In granting certiorari, Justice Scalia, writing for the majority, recognized the Court would not ordinarily consider

an issue that was first presented to a state court in a petition for rehearing unless the state court addressed it.

However, where the state-court decision itself is claimed to be in violation of the U.S. Constitution, the state court‟s

refusal to hear an issue will not bar the Court‟s power to hear the case. Id. at n. 4. 183

Joseph M. Cacace, Plurality Decisions in the Supreme Court of the United States: A Reexamination of the Marks

Doctrine after Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 98 (2007). 184

Beach Renourishment, 130 S. Ct. at 2611. 185

Id. at 2608.

Page | 29

Writing for the majority, Justice Scalia began the opinion with the fundamentals of

Florida‟s property law. As a general rule, state law governs property rights, including property

rights in navigable waters and the land that lies beneath them.186

Under Florida law, the state

owns all lands permanently submerged beneath navigable waters and the foreshore (the land

between the low-tide line and the mean high-water line) in trust for the public.187

The separating

line between private beachfront, or littoral property, and state-owned trust land is the mean high-

water line.188

Because of their unique position, littoral property owners have special property

rights in relation to the water and the foreshore.189

These special rights include the right to

access the water, the right use water for specific purposes, the right to an unobstructed view of

the water, and the right to receive accretions and relictions190

to the littoral property.191

Traditionally, for land to qualify as an accretion it must have formed as a result of a gradual

process that is so slow that the result only becomes noticeable after many years.192

When the

change to the land is sudden and immediately apparent, it is classified as an avulsion193

and the

littoral property owner is not entitled to the same property interest as to an accretion.194

Florida law grants the littoral owner title to any dry land added to his property by

accretion.195

Submerged land that rapidly becomes dry however, is not considered accretion and

186

Id. at 2597. 187

Id. at 2598. 188

Id. (citing Miller, 141 Fla. at 458-460, 193 So. at 427-428). 189

Id. 190

Unlike accretions which are additions of sand, sediment, or other deposits to water front lands, relictions are

lands that were once covered by water which later become dry when the water receded. Id. 191

Id. 192

Id. 193

An Avulsion is defined as “the sudden or violent action of the elements causing, for example, a channel of a river

to abandon its old bed for a new one, or the removal of a substantial quantity of earth from the land of one owner

and its subsequent deposit on that of another. The difference between avulsion and reliction or accretion is that

avulsion is perceptible while in progress.” Id. at 2588 (citing Bd. of Trustees of the Internal Imp. Trust Fund v. Sand

Key Assoc., Ltd., 512 So. 2d 934, 946 (Fla. 1987)). 194

Id. at 2598. 195

Id.

Page | 30

the title to that land remains in the hands of the state.196

Thus, whenever there is an avulsion

separating littoral property and any future accretion land, a private property owner cannot claim

the new accretions as part of his or her property because the accretion is added to the state‟s

avulsion land.197

The Homeowners claimed their property interest in enjoying future accretions added to

their beachfront was unlawfully taken when the FDEP approved the beach restoration project.198

However, as the U.S. Supreme Court pointed out, there can be no taking of property by the

government unless a party had an interest in that property to begin with.199

The Court

recognized the state of Florida holds the title to all lands submerged underneath the water.200

Furthermore, the Court recognized under Florida law that previously submerged land exposed

suddenly by the process of avulsion belongs to the original owner and not to the littoral owner

whose property is adjacent.201

Any new accretions then become the property of the avulsion

owner: the state of Florida. From this analysis the Court concluded, under the traditional

common law of property, that the Homeowners did not have a property interest in future

accretions so long as their land is separated from the sea by avulsion lands.202

In response to the common law principals, the Homeowners argued the Court should

create an exception to the avulsion rule when the State is the cause of the avulsion.203

Relying

196

Id. 197

Id. at 2599 (emphasis in original). 198

Id. at 2611. 199

Id. 200

Id. 201

Id. 202

Id. at 2612. 203

Id. at 2611.

Page | 31

upon Florida case law, the Court rejected this argument.204

From the Court‟s analysis, Florida

law has long recognized that dry land created by filling submerged land is classified as an

avulsion, and the state retains the title to that property.205

Furthermore, the Court declined to

create an exception to the rule of avulsion under the guise of judicial restraint.206

The Takings

Clause in the Fifth Amendment protects property rights as they were established under law.207

The Court held that it would be improper to declare a taking of property that is not granted to a

private property owner under Florida property law because Florida does not make a distinction

between ownership of avulsions created by nature and avulsions created by government

action.208

B. A Court of Law can execute a taking under the Fifth Amendment’s Takings Clause.

The second and more divisive issue was whether a court can be the government actor that

takes property under the Takings Clause of the Fifth Amendment.209

The Court recognized that

unlike the Habeas Corpus210

or Ex Post Facto211

Clauses in the U.S. Constitution, the Takings

Clause of the Fifth Amendment212

is not addressed to the action of a specific branch of

government.213

The plurality opinion written by Justice Scalia contended that there was no textual

support for the proposition that takings executed by the judicial branch were somehow different

204

Id. (citing Martin v. Busch, 93 Fla. 535, 574, 112 So. 274, 287 (1927) (holding “when the State drained water

from a lakebed belonging to the State, causing land that was formerly below the mean high-water line to become dry

land, that land continued to belong to the State”)). 205

Id. at 2612. 206

Id. at 2613. 207

Id. at 2612. 208

Id. at 2612-2613. 209

Id. at 2608. 210

U.S. Const. art. I, § 9, cl. 2. 211

Beach Renourishment, 130 S. Ct. at 2601 (citing U.S. Const. art. I, § 9, cl. 3). 212

Id. (citing U.S. Const. amend. V, § 3). 213

Id.

Page | 32

from takings affected by any other branch of government.214

Additionally, Justice Scalia, writing

for the majority, stated that it would be an absurdity to allow the judiciary to do by court order

what a legislature could not do by statue.215

The Takings Clause bars the government from

taking private property without just compensation, and the particular state actor doing the taking

is irrelevant for constitutional purposes.216

Although the Court did not develop its own test for determining whether a court has

performed a taking, the majority was quick to list other constitutional tests believed to be

inappropriate for determining the presence of a judicial taking.217

First, the majority dismissed

the “fair and substantial basis” test taken from independent state grounds jurisprudence without

explanation.218

It further dismissed an “unpredictability” test that a judicial taking would

constitute so drastic a change in state law that would be unpredictable for relevant precedents.219

In its dismissal of tests, the majority showed its unease at giving recognition and legitimacy to

any test which is based on notions of “fairness” or “substantive” concepts.220

Both Justice Kennedy‟s and Justice Breyer‟s concurring opinions advocated caution to

the plurality. In his concurrence, Justice Breyer admitted that there could possibly be such a

thing as a judicial taking, but he stated that this question of constitutional law is “better left for

214

Id. 215

Id. (citing Stevens v. City of Cannon Beach, 510 U.S. 1207, 1211-1212, 114 S. Ct. 1332, 1334 (1994) (Scalia, J.,

dissenting from denial of certiorari)). 216

Id. at 2602 (emphasis in original). 217

Id. at 2607-2608. 218

Id. at 2608 (citing Broad River Power Co. v. S.C. ex rel. Daniel, 28 U.S. 537, 540 (1930) (indicating if a state

court can show that its decision is based entirely on state law, and the decision does not implicate a federal question,

than the U.S. Supreme Court does not have power of review. However, to ensure that state courts do not attempt to

“evade” Supreme Court review, the Court has developed the “fair and substantial basis” test, which examines

whether the state court‟s decision is fairly supported on state law principals)). 219

Id. at 2610. 220

Justice Scalia spent most of his plurality opinion criticizing Justice Kennedy for advocating a test based the

Fourteenth Amendment‟s Due Process Clause. For a personal testimonial of Justice Scalia‟s unease with notions of

“fairness” in judicial tests see: Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).

Page | 33

another day.”221

Justice Kennedy‟s concurrence took issue with the plurality‟s conclusion that

there is such a thing as a judicial taking under the Takings Clause of the Fifth Amendment.222

Rather, Justice Kennedy stated that if there were such a thing as a judicial taking, it would be

checked by the Due Process Clauses of the Fifth and Fourteenth Amendments.223

Justice

Kennedy believed these amendments would have a greater ability to protect private liberty

interests than the Takings Clause.224

V. THE COURT’S ANALYSIS

Beach Renourishment is an interesting case in both its holding and its warring opinions.

The Court held there was not a taking of two homeowners‟ property rights to future accretions

and that Florida‟s property law considered the placement of fill sand an avulsion, allowing

Florida to retain title of the land. The Court further concluded that any accretion that develops

after the placement of fill sand is part of the avulsion owner‟s property and not the littoral

owner‟s property.

However, the refusal of the Court to create an exception to the avulsion rule when the

state is the cause of the avulsion is troubling for several reasons. First, the common law concepts

of accretions, littoral property, and avulsions pertained to naturally occurring phenomena, not

human-caused events. Second, the supporting case law cited by the Court held that littoral

owners did not have a property right to accretions separated from the littoral property by an

avulsion was not as analogous as the Court made it seem. The major Florida case cited by the

221

Beach Renourishment, 130 S. Ct. at 2618 (Breyer, J., concurring). 222

Id. at 2615 (Kennedy, J., concurring). 223

Id. 224

Id.

Page | 34

Court225

concerned property rights where natural bodies of water were drained dry and the

littoral property owner did not have a right to the formerly submerged land. In Beach

Renourishment, however, the dispute was not over a property right to newly accessible land.

Rather, the dispute was over the separation of property that would belong to the Homeowners,

had Florida not created an entirely new piece of property separating the original beachfront from

the ocean.

The issue of whether there is such a thing as a judicial taking is one that currently

receives little regard, but one that will likely create a landmark decision in the near future.

Although the Justices debated fiercely over the existence and logistics of judicial takings, they

reached few concrete conclusions. They did, however, make very clear that they were laying a

foundation for a future decision where the issue of judicial takings will be established or

dismissed as dicta.

VI. CONCLUSION

Beach Renourishment will not change the current landscape of takings litigation, but it is

likely to be the foundation for new takings jurisprudence. Whether the U.S. Constitution (or the

Court) will permit a judicial taking and what judicial standards shall be applied to a judicial

taking case has yet to be seen. Based on Beach Renourishment, it is likely that a landmark

decision regarding the scope and meaning of the Takings Clause of the Fifth Amendment will be

coming sooner than later.

225

Id. at 2611, 2612 (see Martin, 93 Fla. at 574, 112 So. at 287).

Page | 35

Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010).

Josh Nichols

ABSTRACT

The United States Ninth Circuit Court of Appeals held that the U.S. Forest Service‟s

proxy-on-proxy approach, when considering livestock grazing levels in Southwest Montana‟s

Antelope Basin/Elk Lake Project in the Beaverhead-Deerlodge National Forest, did not comply

with the National Forest Management Act. The court determined that the Forest Service failed to

take a requisite “hard look” at environmental impacts, such as the impacts on sage grouse

populations and the maintenance of diverse habitats for native wildlife, when it approved grazing

allotment updates.

I. INTRODUCTION

In Native Ecosystems Council v. Tidwell,226

the United States Court of Appeals for the

Ninth Circuit held that the U.S. Forest Service‟s (Forest Service) proxy-on-proxy approach did

not comply with the National Forest Management Act (NFMA). The court determined that the

Forest Service failed to take a requisite “hard look” at environmental impacts when it approved

an update to grazing allotments in the Beaverhead-Deerlodge National Forest (BDNF) in

Southwest Montana. The decision was a victory for those concerned that grazing practices

contribute to declining sage grouse populations, while it was a setback for those with ranching

interests who argued livestock management practices had not negatively impacted vegetation in

the project area.

226

Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010).

Page | 36

II. FACTUAL BACKGROUND

The 48,000-acre Antelope Basin/Elk Lake project area forms the southeast portion of the

Gravelly Mountain Range in Southwest Montana‟s BDNF.227

Three activities allowed by the

Forest Service have most impacted the project area‟s sagebrush ecosystem: (1) herbicide

application, (2) controlled burning, and (3) livestock grazing.228

The Forest Service divided the project area into eleven grazing allotments as part of a

National Environmental Policy Act (NEPA) environmental analysis used to determine

appropriate livestock grazing levels.229

The project proposed updating the ten-year-old

Allotment Management Plans (AMP), which determine “where livestock can graze, when

grazing would occur and what specific guidelines would be established to regulate the intensity

of grazing.”230

The goal was to maintain diverse native wildlife habitat and provide domestic

livestock grazing opportunities without compromising forest resources.231

The Forest Service issued a revised Environmental Assessment (EA) that addressed

concerns about the project‟s impact on sage grouse.232

Sage grouse are ground-dwelling,

chicken-like birds that rely on sagebrush for roosting, cover, and food.233

Sage grouse cannot

survive in areas where sagebrush does not exist.234

Three options for updating the AMPs

included: (1) continuing the status quo, (2) modifying the AMPs to protect riparian habitat while

continuing to allow grazing, or (3) banning grazing on the allotments.235

227

Id. at 929. 228

Id. 229

Id. 230

Id. at 930. 231

Id. 232

Id. 233

U.S. Fish & Wildlife Service, Sage Grouse Fact Sheet,

http://www.r6.fws.gov/species/birds/sagegrouse/sagegrousefactsheet.pdf (last updated Jan. 5, 2004). 234

Id. 235

Native Ecosystems, 599 F.3d at 930.

Page | 37

The second alternative was identified as the preferred alternative.236

Some of the key

changes proposed in the second alternative included reducing animal unit months from 11,225 to

10,453, excluding livestock from certain areas, changing boundaries to create a new allotment,

limiting upland forage utilization to fifty percent, and limiting riparian forage to fifty-five

percent.237

Several structural improvements, including fencing, water troughs, and pipelines

were also recommended in the second alternative.238

The United States Fish and Wildlife

Service then issued a Biological Evaluation which concluded that the preferred alternative would

not adversely affect any listed species. In November, 2003, BDNF District Ranger Mark

Petronie released a Decision Notice and Finding of Not Significant Impact that reflected the

administrative decision to proceed with the second alternative.239

To maintain wildlife diversity, the Forest Plan designates certain wildlife as

“management indicator species” (MIS), which are monitored to measure the impact different

activities have on wildlife habitats.240

The sage grouse, which is entirely dependent on

sagebrush ecosystems, is an MIS for sagebrush wildlife habitat areas.241

Only two sage grouse

sightings had been reported in the project area in the previous fifteen years, though

approximately 21,000 acres, or forty percent of the project area, were considered potential sage

grouse habitat.242

About 1,900 acres were considered to have potential nesting and early brood

rearing habitat.243

236

Id. 237

Id. 238

Id. 239

Id. 240

Id. 241

Id. 242

Id. at 931. 243

Id.

Page | 38

In December 2004, the Forest Service issued a Supplemental Information Report

concerning sage grouse, and it cited new information discovered in studies published after the

environmental assessment.244

The Forest Service requested that J.W. Connelly, one of the

authors of Conservation Assessment of Greater Sage Grouse and Sagebrush Habitats, do a site-

specific review.245

Connelly concluded from his review that if the project were implemented,

effects to sage grouse would be minimal.246

Therefore, the District Ranger determined that the

EA‟s conclusions remained accurate.247

III. PROCEDURAL BACKGROUND

The District Ranger, with agency authority to waive an Environmental Impact Statement

(EIS) if the EA concludes that the project poses no significant impact, decided that no EIS was

warranted.248

The Native Ecosystems Council (NEC) appealed the decision.249

Regional

Forester Abigail Kimbell upheld the District Ranger‟s decision, and NEC then filed a complaint

in the United States District Court for the District of Montana.250

The district court granted

summary judgment to the Forest Service, and NEC appealed.251

NEC argued the district court

erred when it held that Forest Service‟s approval of a project updating grazing rights complied

with NFMA and NEPA.252

IV. NINTH CIRCUIT COURT OF APPEALS DECISION

244

Id. 245

Id. 246

Id. 247

Id. 248

Id. 249

Id. 250

Id. 251

Id. 252

Id. at 929.

Page | 39

The court reversed the district court‟s grant of summary judgment, holding that the Forest

Service‟s methodology violated both NFMA and NEPA.253

Under NFMA, the Forest Service has a duty to “provide for diversity of plant and animal

communities based on the suitability and capability of the specific land area.”254

The Forest

Service must conduct an analysis of each “„site specific‟ action to ensure that the action is

consistent with the Forest Plan.”255

The Forest Service used the proxy-on-proxy approach for the analysis, using habitat as a

proxy to measure a species‟ population, and then using that species‟ population as a proxy for the

population of other species.256

Under the Forest Plan, sagebrush habitat was used to assess the

viability of sagebrush species, and the sage grouse was designated as the MIS for sagebrush

communities.257

This meant that sage grouse were to be monitored to measure management

activity effects on sage grouse habitat to ensure that viable populations of native and desirable

non-native species were maintained.258

Despite the designation, sage grouse were virtually non-

existent in the project area.259

The court held that there was no basis to evaluate the Forest Service‟s assertion that the

sagebrush habitat was sufficient to sustain viable sage grouse populations when sage grouse were

not found in the project area.260

The court stated, “it is unfathomable how the Forest Service

could meet its responsibility to maintain existing species by selecting as a proxy a species that is

253

Id. at 938. 254

Id. at 932 (citing 16 U.S.C. § 1604(g)(3)(B)). 255

Id. at 932, 940 (citing Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir.2002)). 256

Id. at 933. 257

Id. 258

Id. 259

Id. 260

Id.

Page | 40

virtually non-existent in the targeted area.”261

The court held that the District Ranger‟s

determination that there would be minimal impacts on sage grouse was not derived from a

reliable methodology.262

Based on that reasoning, the court reversed the district court‟s grant of

summary judgment on NEC‟s NFMA claims.263

The court also addressed the Forest Service‟s failure to comply with the very guidelines it

cited in making its argument.264

The Connelly Guidelines require “quantitative data from

population and habitat monitoring.”265

The guidelines used by the Forest Service to argue that

NFMA sage grouse population requirements had been met were not applicable because sage

grouse did not exist in the project area.266

The Forest Service also failed to consider evidence

that sage grouse populations had declined for decades.267

Such omission suggested that the

agency “failed to consider an important aspect of the problem or has offered an explanation for

its decision that runs counter to the evidence in the record, and its decision is therefore arbitrary

and capricious.”268

Additionally, the Forest Service did not identify any nesting habitat in the

project area, but the Connelly Review cited 1,900 acres of nesting habitat.269

NEPA exists to ensure a process and requires a federal agency to prepare a “detailed

statement on the environmental impact” of federal actions that significantly affect the quality of

the human environment.270

If an agency concludes in an EA that the proposed project has no

significant effect, the federal agency may issue a “no significant impact” finding in lieu of

261

Id. at 934. 262

Id. at 935. 263

Id. 264

Id. 265

Id. at 934 (citing Guidelines to Manage Sage Grouse Populations and Their Habitats, John W. Connelly,

Michael A. Schroeder, Alan R. Sands and Clait E. Braun, Wildlife Society Bulletin, Vol. 28 pp. 975-976 (2000)). 266

Id. at 935. 267

Id. 268

Id. 269

Id. 270

Id. at 936.

Page | 41

preparing an EIS.271

An EA is a more limited document than an EIS and is used to determine

whether an EIS is necessary.272

“If an agency decides not to prepare an EIS, it must supply a

convincing statement” explaining why a project‟s impacts are insignificant.273

The court held that the Forest Service‟s use of sage grouse as an MIS to assess the

project‟s impact on all sagebrush species‟ diversity was flawed because no sage grouse existed in

the project area.274

As a result, its overall study of the sage grouse habitat throughout the EA

was similarly deficient.275

The court noted that it could not conclude that the results of the EA

would have differed if an appropriate MIS had been selected, but absent that analysis, the court

determined the Forest Service must perform a new EA. The court therefore reversed and

remanded the district court‟s decision.276

V. CONCLUSION

The court held that the Forest Service violated both NFMA and NEPA. The district

court‟s grant of summary judgment in favor of the Forest Service was reversed, and the case was

remanded for the Forest Service to prepare a new EA.277

The court noted that a revised EA,

taking into consideration the issues addressed in the court‟s decision, might lead to a different

conclusion and necessitate the preparation of an EIS.278

One of the key issues addressed in the

decision was the Forest Service‟s use of sage grouse as an MIS to assess the project‟s impact

when sage grouse did not exist in the project area. It was impossible to draw a conclusion on

potential impacts of development when the MIS was non-existent, and the court‟s assessment of

271

Id. at 937. 272

42 U.S.C. § 4232(C) (2006); DOT v. Public Citizen, 541 U.S. 752, 757-58, 124 S. Ct. 2204, 159 L.Ed.2d 60

(2004). 273

Native Ecosystems, 599 F.3d at 937. 274

Id. 275

Id. 276

Id. 277

Id. at 938. 278

Id.

Page | 42

the discrepancy was sound when it stated that “it is unfathomable how the Forest Service could

meet its responsibility to maintain existing species by selecting as a proxy a species that is

virtually non-existent in the targeted area.”279

As a result of this decision, agencies using the

proxy-on-proxy approach must make certain that the species selected as the MIS actually exist in

the project area.

279

Id. at 934.

Page | 43

Rock Creek Alliance v. U.S. Forest Service, 703 F. Supp. 2d 1152, 2010 U.S. Dist. LEXIS

43880, 2010 WL 1872864 (D. Mont. May 4, 2010).

Matt Pugh

ABSTRACT

A coalition of environmental advocacy groups challenged the U.S. Forest Service, U.S.

Fish and Wildlife Service, and the U.S. Department of Agriculture‟s approval of a mining project

near Noxon, Montana. The proposed mine would operate partially on national forest land and

involve tunneling beneath the Cabinet Mountains Wilderness to extract copper and silver. The

plaintiffs challenged the mine approval by advancing claims under the Endangered Species Act,

National Environmental Policy Act, Clean Water Act, Organic Administration Act, and the

National Forest Management Act. The court entered summary judgment for the defendants on

all but two counts. Minor changes must be made to the planning and review documents on

remand before the mine project is allowed to proceed.

I. INTRODUCTION

This consolidated environmental record review case tested the U.S. Forest Service, U.S.

Fish and Wildlife Service and the U.S. Department of Agriculture‟s approval of a controversial

mining project near Noxon, Montana.280

The proposed project would take place in the Kootenai

National Forest and involve tunneling beneath the Cabinet Mountains Wilderness to extract

copper and silver.281

The plaintiffs, a coalition of environmental advocacy groups, challenged the decision by

bringing one action against the Forest Service and the Department of Agriculture (the lead case)

280

Rock Creek Alliance v. U.S. Forest Serv., 703 F. Supp. 2d 1152, 2010 U.S. Dist. LEXIS 43880 at ** 3-7 (D.

Mont. May 4, 2010). 281

Id. at **7-8.

Page | 44

and a second action against the Fish and Wildlife Service (the companion case).282

The cases

were consolidated into one matter involving five counts.283

Counts I and II advanced arguments

under the Endangered Species Act (ESA) in relation to bull trout and grizzly bear

management.284

Count III alleged procedural violations of the National Environment Policy Act

(NEPA).285

Alleged violations to the Clean Water Act and the Forest Service Organic

Administration Act of 1897 (Organic Act) were the focus of Count IV.286

The plaintiffs dropped

Count V, so the final claim was Count VI pertaining to the National Forest Management Act

(NFMA).287

II. FACTUAL BACKGROUND

The application process for the Rock Creek Mine Project began in 1987.288

The project

had the potential to disturb 140 acres of national forest land and 342 acres of private land owned

by Revett Silver Company (Revett).289

Portions of Rock Creek are designated critical habitat for

bull trout; also, grizzly bears are thought to live in the area.290

The mine plan calls for implementation in two phases.291

Phase I involves the

construction of an evaluation adit.292

The evaluation adit is a 6,700 foot-long mine shaft

measuring twenty feet high.293

The shaft will extend underneath portions of the Cabinet

Mountains Wilderness, and will be used to gather data on the deposit.294

If Phase I is

completed, Revett would be required to update its Plan of Operations and receive agency

282

Id. at **3-5. 283

Id. 284

Id. at *17. 285

Id. at *18. 286

Id. 287

Id. at **5 n. 2, 19. 288

Id. at *12. 289

Id. at *7. 290

Id. at **107, 151. 291

Id. at *9. 292

Id. 293

Id. 294

Id.

Page | 45

approval based on the empirical data discovered during that phase.295

Upon approval, Phase II

includes the actual operation of the mine, construction of support facilities, and reclamation work

after the productive life of the mine has lapsed.296

III. PROCEDURAL BACKGROUND

The U.S. Forest Service and the Montana Department of Environmental Quality issued a

Final Environmental Impact Statement on the Rock Creek Mine Project in 2001, presenting five

alternative courses of action for consideration.297

The Forest Service ultimately selected

Alternative V.298

This option added several additional agency-initiated modifications and

mitigations, including relocation of mine facilities away from Rock Creek.299

The 2001 decision

was withdrawn by the Forest Service after a supporting Biological Opinion issued by the Fish

and Wildlife Service was withdrawn in response to a legal challenge.300

The Forest Service relied on a subsequent Biological Opinion in 2003 in issuing its

approval of Alternative V.301

This 2003 decision was challenged by a coalition of environmental

groups led by the Rock Creek Alliance, who brought suit in U.S. District Court for the District of

Montana. In 2005, the court found that the Fish and Wildlife Service‟s “no jeopardy” conclusion

regarding impacts to the grizzly bear population inadequately considered adverse effects on the

imperiled female grizzly bear population.302

Additionally, the court determined that the agency

committed procedural errors in reviewing the cumulative effects of the mine on the listed bull

trout distinct population segment.303

For these reasons, the Biological Opinion was remanded to

295

Id. at *10. 296

Id. at *9. 297

Id. at *13. 298

Id. at *14. 299

Id. 300

Id. at *15. 301

Id. 302

Id. (citing Rock Creek Alliance v. U.S. Fish & Wildlife Serv., 390 F. Supp. 2d 993, 1009 (D. Mont. 2005)). 303

Id.

Page | 46

the Fish and Wildlife Service and the mine project was stalled pending further review.304

After

reviewing the revised 2006 Biological Opinion and 2007 Supplement, the Forest Service stood

by its 2003 approval of the project because the documents contained no significant new or

different information.305

A consortium of environmental advocacy groups, again led by the Rock Creek Alliance,

challenged the agencies‟ approval of the project.306

Revett exercised its right to intervene in this

matter.307

The court issued its opinion on the consolidated case on May 4, 2010.308

IV. ANALYSIS

A. Consolidated Counts I and II: ESA

In Count I, the plaintiffs contended that the Forest Service violated Section 7 of the ESA

by allowing “irreversible and irretrievable commitments of resources” before the Forest Service

completed the required consultations with the Fish and Wildlife Service.309

The defendants

argued that the 2006 Biological Opinion and 2007 Supplement satisfied the consultation

requirements under Section 7.310

At issue was whether the Fish and Wildlife Service‟s

conclusions can be considered complete when they are contingent on the agency‟s subsequent

approval of monitoring and mitigation actions called for in the approved plan.311

The plaintiffs took issue with the Fish and Wildlife Service‟s decision to allow Revett to

acquire the 566 acres of grizzly bear mitigation habitat after the construction of the mine is

complete but before operations begin.312

The plaintiffs also argued that to protect bull trout, the

304

Id. 305

Id. at *16. 306

Id. at *3. 307

Id. at *6. 308

Id. at *7. 309

Id. at *17. 310

Id. 311

Id. at *60. 312

Id. at *160.

Page | 47

sediment mitigation plans must be reviewed and approved before the project can go forward.313

The groups were concerned the company would abandon the mine before obtaining mitigation

lands.314

However, due to its resources and the economic incentive to recoup its investment, the

court was convinced Revett will acquire the mitigation land.315

The plaintiffs next challenged the “no jeopardy” finding relating to the Yaak-Cabinet

grizzly population. As one of only four remaining populations of the species, numbering

between 30 and 40 individuals, this grizzly population faces a high extinction risk.316

Additionally, analyses indicate a 91 percent probability that this population is declining.317

Of

the fifteen grizzlies occupying the Cabinet Mountains, estimates suggest only five are females of

reproductive age.318

Two or three of those females possibly have home range within the action

area.319

The Forest Service‟s mitigation plan required at least six female grizzly bears to be

relocated to the Cabinet Mountains.320

This action is expected to more than offset the expected

loss of one reproductive female or the displacement of two females for one breeding cycle.321

The court agreed with the Fish and Wildlife Service‟s conclusion that the relocation plan and

mitigation lands eliminate the likelihood that the proposed action would diminish the survival

and recovery of grizzly bears, and may in fact improve conditions.322

The court granted

summary judgment for the defendants on all ESA Section 7 claims relating to grizzly bears.323

313

Id. at *61. 314

Id. at *160. 315

Id. at **160-162. 316

Id. at *151. 317

Id. at *152. 318

Id. 319

Id. 320

Id. at *153. 321

Id. 322

Id. at *166. 323

Id. at *167.

Page | 48

Five segments of Rock Creek have been designated critical habitat for bull trout and all

are located near mine facilities.324

Despite this fact, the Fish and Wildlife Service concluded in

its 2007 Supplement to the 2006 Biological Opinion that the Rock Creek Mine project is “not

likely to destroy or adversely modify bull trout critical habitat.”325

The agency further

determined that “due to the small size of Rock Creek critical habitat in relation to the total

designated critical habitat, the value of overall critical habitat for recovery will not be

appreciably diminished.”326

The Fish and Wildlife Service argued that its discussion of recovery

and survival took place on the “core area” level, which is the appropriate scale on which to gauge

recovery.327

The court found that the discussion of the habitat‟s value to recovery “minimal but

sufficient.”328

The plaintiffs further contended that the Fish and Wildlife Service‟s “no adverse

modification” conclusion was unsupported.329

An adverse modification determination is

appropriate when an action “appreciably diminishes the value of critical habitat, either for

survival or recovery.”330

By the agency‟s own admissions, this project could decrease the

habitat‟s ability to support several life stages of bull trout.331

The court granted summary

judgment in favor of the defendants and determined that:

degradation, or even elimination, of critical habitat on a small scale does not

constitute adverse modification, provided (1) the affected area is insignificant

relative to the total designated critical habitat; (2) the localized effects are fully

discussed in the biological opinion; and (3) the use of a large-scale analysis does

not mask multiple site-specific effects that pose a significant risk to the species

when considered in the aggregate.332

324

Id. at *108. 325

Id. 326

Id. at *114. 327

Id. at **116-117 n. 32. 328

Id. at *117. 329

Id. 330

Id. 331

Id. at *120. 332

Id at **130-132.

Page | 49

While noting that its decision could leave a species subject to “death by a thousand

pinpricks,” the court also sided with the agency and granted the defendants summary judgment

on the “no jeopardy” determination for bull trout.333

The court found the agency had expanded

its review of the status of the species across its range and applied the proper level of analysis.334

Count II, which alleged claims under Section 9 of the ESA, was entirely dependent on a

favorable ruling under Section 7, so the court found for the defendants on those issues.335

B. Count III: NEPA

Count III relied on four main arguments: (1) the Final Environmental Impact Statement

lacked critical information resulting in an unreliable environmental baseline;336

(2) not all

reasonable alternatives were considered;337

(3) the Forest Service failed to take the requisite

“hard look” by deferring its mitigation analysis;338

and (4) the Forest Service failed to analyze

Revett‟s revised Plan of Operation allowing wastewater to be discharged into groundwater.339

NEPA does not outline any requirements relating to the outcome of the agency‟s decision, but it

mandates the procedural steps an agency must take in reaching its decision.340

The plaintiffs identified language in the 2003 Biological Opinion stating “[t]he current

level of information present on Rock Creek bull trout is minimal and additional information on

fish presence, absence, migration and demographic characteristics are necessary to fully assess

the condition of bull trout in this watershed.”341

Although the 2006 Biological Opinion and 2007

Supplement provided additional information on the bull trout population, the court determined

333

Id. at **150-151. 334

Id. at *150. 335

Id. at **167-168. 336

Id. at **74-75. 337

Id. at *56. 338

Id. at *58. 339

Id. at **79-80. 340

Id. at *53. 341

Id. at *74.

Page | 50

the agency could not update a NEPA study with a non-NEPA Supplemental Information Report

issued four years after the project was approved.342

The court stated that to allow a decision

based on admittedly inadequate information is contrary to the purposes of NEPA and results in

an “arbitrary and capricious” decision.343

The court granted summary judgment on this issue in

favor of the plaintiffs and remanded it to the Forest Service to either issue a supplemental

environmental impact statement considering the updated bull trout information, or withdraw the

2001 Final Environmental Impact Statement and 2003 Record of Decision and produce

replacement documents in compliance with NEPA standards.344

The court next determined the second NEPA argument, that not all reasonable

alternatives were considered, was neither supported by the record nor consistent with NEPA

standards.345

The plaintiffs argued that the Forest Service was required to consider the

possibility of only approving the evaluation adit portion of the plan.346

However, NEPA requires

that connected actions be evaluated together.347

Because both phases of the project are

inextricably connected, the court granted summary judgment on this issue in favor of the

defendants.348

The third NEPA issue in this case involved the Forest Service‟s decision to postpone a

full sediment mitigation plan until more information was available from the completion of Phase

I of the project.349

Despite the fact the agency did not produce a final mitigation plan regarding

sediment concerns, the court determined the agency satisfied NEPA requirements based upon:

(1) its general knowledge of water quality threats; and (2) its efforts to develop a sediment source

342

Id. at **75-78. 343

Id. at *78. 344

Id. 345

Id. at **59-60. 346

Id. at *56. 347

Id. at *57. 348

Id. at *60. 349

Id. at **60-61.

Page | 51

reduction plan using the WATSED model.350

The agency was not required to measure the

precise effects of sediments until after Phase I was completed and more information was

known.351

Accordingly, summary judgment on this issue was entered in favor of the

defendants.352

The final NEPA issue involved wastewater discharge. The approved plan dictated that

wastewater from the mine adit would travel through a pipeline and be discharged into the Clark

Fork River.353

New information after the approval suggested it may not be possible to secure

easements for the pipeline.354

Since there was no reason to anticipate the change in discharge

location at the time of approval and the Montana Department of Environmental Quality had not

yet acted on the revision, the court found the plaintiffs‟ argument premature and entered

summary judgment in favor of the defendants.355

C. Count IV: Clean Water Act and Organic Act

The plaintiffs argued that the increased sedimentation in Rock Creek violated the Clean

Water Act and Montana water quality standards requiring protections to fisheries.356

The

plaintiffs acknowledged that they failed to comply with the notice requirement of the Clean

Water Act, but argued that it did not apply because their claim was brought pursuant to the

Administrative Procedure Act and 33 U.S.C. § 1323(a).357

The court determined that the mine‟s

alleged violations involved point-source pollution and therefore arose under the citizen suit

350

Id. at **73-74. The Forest Service‟s “R-1 WATSED” is an ecological model used to predict sedimentation

levels. 351

Id. at *73. 352

Id. at *74. 353

Id. at *78. 354

Id. at *79. 355

Id. at *80. 356

Id. at **22-23. 357

Id. at *26.

Page | 52

provision of the Clean Water Act.358

The plaintiffs‟ failure to comply with the notice

requirement deprived the court of subject matter jurisdiction, and the claim was dismissed.359

The claim under the Organic Act contended that the Forest Service failed to take “all

practicable measures to maintain and protect fisheries and wildlife habitat” by approving a plan

that would likely violate water quality standards.360

According to the 2007 Supplement,

sediment loading is expected to increase 46 percent in the West Fork of Rock Creek mostly, and

possibly entirely, during Phase I of the project.361

Despite this fact, the approved plan lacked any

mitigation requirements during Phase I.362

This highly problematic oversight rendered the

decision arbitrary.363

The court held it was feasible and practical to extend the mitigation efforts

required for Phase II into Phase I to reduce the environmental impacts of sediment loading, and

such efforts were necessary to comply with the Organic Act.364

Summary judgment was granted

in favor of the plaintiffs on this aspect of the Organic Act claim, but summary judgment was

entered in favor of the defendants on the mitigation, monitoring and permitting requirements as

approved for Phase II of the project.365

D. Count VI: NFMA

The Kootenai National Forest Plan incorporates the Inland Native Fish Strategy

management standards for protecting fish populations from adverse planning actions.366

The

plaintiffs argued that the standards and guidelines of the Inland Native Fish Strategy were not

358

Id. at *28. 359

Id. at *29. 360

Id. 361

Id. at **30-32. 362

Id. at **35-36. 363

Id. at *45. 364

Id. at **44-45. 365

Id. at **45, 52. 366

Id. at *87.

Page | 53

properly considered to minimize negative impacts to the Rock Creek population of bull trout.367

The court found the plaintiffs‟ reading of the Fish Strategy as banning all activity detrimental to

bull trout populations or habitat too narrow and determined that it is not to be used to “lockout”

any project in Conservation Areas.368

Compliance with the Fish Strategy requires only proper

analysis prior to the initiation of projects.369

The court failed to reach a decision on this issue

because it could not determine the location of the waste dump area in relation to the

Conservation Area located in the mill site.370

The court ordered the Forest Service to include a

map clarifying this matter on remand.371

V. CONCLUSION

After years of litigation and agency review, this decision has moved the Rock Creek

Mine project one step closer to fruition. It appears the necessary changes can be made to the

planning and review documents on remand, and Phase I of the mine project could begin within

the next few years.

367

Id. at *92. 368

Id. at *93. 369

Id. 370

Id. at **97-98. 371

Id.