Oregon Natural Desert Ass'n v. Dombeck

• Decision Date: 22 July 1998
• Docket Number: 97-35112,Nos. 97-35065,s. 97-35065
• Citation: 172 F.3d 1092
• Parties: OREGON NATURAL DESERT ASSOCIATION; Rest the West; Portland Audubon Society; Trout Unlimited; Oregon Wildlife Federation; Northwest Environmental Defense Center; Oregon Natural Resources Council; Pacific Rivers Council; Oregon Natural Resources Coalition, Plaintiffs-Appellees, and The Confederated Tribes of the Warm Springs Reservation of Oregon, Plaintiff-Intervenor-Appellee, v. Michael P. DOMBECK, in his official capacity as Chief of the United States Forest Service, Defendant-Third Party Defendant-Appellant. Oregon Natural Desert Association; Rest the West; Portland Audubon Society; Trout Unlimited; Oregon Wildlife Federation; Northwest Environmental Defense Center; Oregon Natural Resources Council; Pacific Rivers Council; Oregon Natural Resources Coalition, Plaintiffs-Appellees, and The Confederated Tribes of the Warm Springs Reservation of Oregon, Plaintiff-Intervenor-Appellee, v. Jack Ward Thomas, in his official capacity as Chief of the United States Forest Service, Defendant, and Eastern Oregon Public Land Coalition; Robert Burril, Grant County, a Political subdivision of the State of Oregon, Defendants-Intervenors/Third Party Plaintiffs-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1092

172 F.3d 1092

OREGON NATURAL DESERT ASSOCIATION; Rest the West; Portland

Audubon Society; Trout Unlimited; Oregon Wildlife

Federation; Northwest Environmental Defense Center; Oregon

Natural Resources Council; Pacific Rivers Council; Oregon

Natural Resources Coalition, Plaintiffs-Appellees,

and

The Confederated Tribes of the Warm Springs Reservation of

Oregon, Plaintiff-Intervenor-Appellee, v. Michael P. DOMBECK, in his official capacity as Chief of the

United States Forest Service, Defendant-Third

Party Defendant-Appellant.

Oregon Natural Desert Association; Rest the West; Portland

Audubon Society; Trout Unlimited; Oregon Wildlife

Federation; Northwest Environmental Defense Center; Oregon

Natural Resources Council; Pacific Rivers Council; Oregon

Natural Resources Coalition, Plaintiffs-Appellees,

and

The Confederated Tribes of the Warm Springs Reservation of

Oregon, Plaintiff-Intervenor-Appellee, v. Jack Ward Thomas, in his official capacity as Chief of the

United States Forest Service, Defendant,

and

Eastern Oregon Public Land Coalition; Robert Burril, Grant

County, a Political subdivision of the State of

Oregon, Defendants-Intervenors/Third

Party Plaintiffs-Appellants.

Nos. 97-35065, 97-35112.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1998.

Decided July 22, 1998.

Nancy B. Firestone, Assistant United States Attorney, Washington, DC; Daniel E. O'Leary, Davis Wright Tremaine, Portland, Oregon; Ronald S. Yockim, Roseburg, Oregon, for the appellants.

Michael Axline, Western Environmental Law Center, Eugene, Oregon; Howard G. Arnett, Karnopp, Petersen, Noteboom, Hubel, Hansen & Arnett, Bend, Oregon, for the appellees.

Appeals from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-94-00522-ALH.

Before: SCHROEDER, FARRIS, and TASHIMA, Circuit Judges.

SCHROEDER, Circuit Judge:

The United States Forest Service appeals the district court's ruling that pollution from cattle grazing is subject to the certification requirement of § 401 of the Clean Water Act, 33 U.S.C. § 1341. This appeal requires us to consider whether the term "discharge" in § 1341 includes releases The background of this case can be briefly described. In 1993 the Forest Service issued a permit allowing Robert and Diana Burril to graze 50 head of cattle in Oregon's Malheur National Forest. The cattle graze several months a year in and around Camp Creek and the Middle Fork of the John Day River, polluting these waterways with their waste, increased sedimentation, and increased temperature. In 1994 Oregon Natural Desert Association (ONDA) filed an action under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, as well as the Administrative Procedures Act, 5 U.S.C. § 702. ONDA alleged that the Forest Service had violated 33 U.S.C. § 1341 by issuing the grazing permit without first obtaining the State of Oregon's certification that the grazing would not violate the state's water quality standards. The Burrils, Grant County, and the Eastern Oregon Public Lands Coalition intervened as defendants and the Confederated Tribes of the Warm Springs Reservation intervened as plaintiffs. The district court granted the plaintiffs' summary judgment motion, concluding that the Forest Service must obtain certification for activities that will potentially cause nonpoint source pollution.

from nonpoint sources as well as releases from point sources. We conclude from the language and structure of the Act that the certification requirement of § 1341 was meant to apply only to point source releases. Accordingly, we reverse.

Standing

We first address the Intervenor/Appellants' contention that ONDA lacks standing to bring this suit. To establish standing a plaintiff must demonstrate: (1) the invasion of a legally-protected interest; (2) a causal connection between the injury and the defendant's conduct; and (3) a likelihood that the court can redress the injury by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). ONDA is an environmental group whose members live adjacent to the John Day River and use it for recreation. There is no question that the river's pollution has injured them. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (Harm to a plaintiff's aesthetic and environmental well-being is a cognizable injury.); Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1396 (9th Cir.1992) (An organization has standing by alleging injury to individual members.).

The Intervenor/Appellants argue that by challenging the lack of certification, ONDA has alleged "only a procedural injury," and thus has not demonstrated a concrete injury or the likelihood of redressability. The legal requirement ONDA seeks to impose is one that would affect the reality of the environment. This is a case, therefore, where plaintiffs seek "to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs." Lujan, 504 U.S. at 572, 112 S.Ct. 2130. We have held threatened harm to "health, recreational use, and enjoyment" from the use of herbicides constitutes an impairment of a concrete interest. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.1994). Certainly, ONDA has demonstrated a concrete interest where its members reside and engage in recreational activities along polluted waterways.

For similar reasons, the appellants' argument that there is no redressable injury must fail. Appellants suggest that ONDA must prove either that the state would deny certification or that certification would necessitate a change in the grazing operation. To establish redressability, however, the plaintiffs need not demonstrate that the ultimate outcome following proper procedures will benefit them. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir.1992). The Supreme Court has recognized that the assertion of a procedural right is "special" and reduces the plaintiff's burden of proving immediacy and redressability. Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. ONDA stands in a similar position to the

                hypothetical plaintiff, discussed in Lujan, who lives adjacent to the construction site for a federally-licensed dam.  The Court noted that such a plaintiff could challenge a federal agency's failure to prepare an Environmental Impact Statement, even though the plaintiff could not establish that the EIS would alter the construction plan for the dam or even that the dam would be completed in the near future.  See id.   Here, ONDA asserts a similar procedural right of certification under § 1341
                

Citizen Suit Provision

Appellants argue that even if ONDA has standing to sue under Article III, its suit is not authorized under the Clean Water Act's citizen suit provision. That statute provides that any citizen may bring a civil action against an agency alleged to be in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a). "Effluent standard or limitation" is defined to include "certification under section 1341 of this title." 33 U.S.C. § 1365(f)(5).

Appellants contend that the statute authorizes suits to enforce only the discharge limitations already contained within state certifications. The statute on its face is not so limited. Section 1365(f) cross-references the entirety of section 1341, which provides in relevant part that "No license or permit shall be granted until the certification required by this section has been obtained...." 33 U.S.C. § 1341(a). An agency that has issued a permit without the appropriate certification is in violation of the certification requirement under § 1341 and therefore in violation of an "effluent standard or limitation" under § 1365. The statute authorizes any citizen to bring a suit against such an agency, in this case the Forest Service.

Appellants' reliance on Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), is misplaced. The Court there held that a citizen could not invoke the Endangered Species Act's general civil suit provision to sue the Secretary of the Interior for a discretionary act, when a separate, specific provision authorized suits against the Secretary only for nondiscretionary acts. See id. 117 S.Ct. at 1166. There is no similar limitation in the Clean Water Act that would restrict citizen suits to challenges of certifications already granted. It authorizes suits for violation of certification requirements.

The Merits

The crux of this case is whether the Burrils' Forest Service grazing permit requires certification from the State of Oregon. The resolution of this question hinges on the interpretation of the term "discharge" as used in § 1341. That section provides:

Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates ... that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title.... No license or permit shall be granted until the certification required by this section has been obtained or has been waived....

The Clean Water Act defines point sources as "discernible, confined and discrete conveyances" such as a pipe, ditch, or machine. 33 U.S.C. § 1362. Other pollution sources, such as runoff from agriculture or in this case, animal grazing, are nonpoint sources. See id.; Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 849 n. 9 (9th Cir.1987).

The appellees argued before us and the district court that "discharge" in § 1341 refers to pollution from both point sources and nonpoint sources. In accepting this argument below, the district court relied exclusively on § 502 of the Act, which provides:

(12) The term ...