Churchill County v. Babbitt

• Decision Date: 15 July 1998
• Docket Number: 97-15813,Nos. 97-15508,s. 97-15508
• Citation: 150 F.3d 1072
• Parties: , 28 Envtl. L. Rep. 21,463, 98 Cal. Daily Op. Serv. 5535, 98 Cal. Daily Op. Serv. 8054, 98 Daily Journal D.A.R. 7735 CHURCHILL COUNTY, a political subdivision of the State of Nevada; City of Fallon, a political subdivision of the State of Nevada, Plaintiffs-Appellants, v. Bruce BABBITT, in his official capacity as Secretary of the Interior; William Bettenberg, in his official capacity as Assistant Director, Office of Policy Analysis, Department of Interior; Jefferey Zippin, in his official capacity as Team Leader, Truckee-Carson Coordination Office, Department of Interior; Ronald Anglin, in his official capacity as Refuge Manager; Stillwater National Wildlife Refuge, Department of Interior; Marvin Plenert, in his official capacity as Regional Director of the United States Fish and Wildlife Services; John Doebel, in his official capacity as Assistant Regional Director of the United States Fish and Wildlife Services; Ann Ball, in her official capacity as Project Manager of Bureau of Reclamation Lahontan Basin Project Office, Defendants-Appellees, and Sierra Pacific Power Company, Intervenor. CHURCHILL COUNTY, a political subdivision of the State of Nevada; City of Fallon, a political subdivision of the State of Nevada, Plaintiffs-Appellees, Sierra Pacific Power Company, Intervenor-Appellant, v. Bruce BABBITT, in his official capacity as Secretary of the Interior, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1072

150 F.3d 1072

41 Fed.R.Serv.3d 588, 28 Envtl. L. Rep. 21,463,

98 Cal. Daily Op. Serv. 5535,

98 Cal. Daily Op. Serv. 8054,

98 Daily Journal D.A.R. 7735

CHURCHILL COUNTY, a political subdivision of the State of

Nevada; City of Fallon, a political subdivision of the State of Nevada, Plaintiffs-Appellants, v. Bruce BABBITT, in his official capacity as Secretary of the

Interior; William Bettenberg, in his official capacity as

Assistant Director, Office of Policy Analysis, Department of

Interior; Jefferey Zippin, in his official capacity as Team

Leader, Truckee-Carson Coordination Office, Department of

Interior; Ronald Anglin, in his official capacity as Refuge

Manager; Stillwater National Wildlife Refuge, Department of

Interior; Marvin Plenert, in his official capacity as

Regional Director of the United States Fish and Wildlife

Services; John Doebel, in his official capacity as

Assistant Regional Director of the United States Fish and

Wildlife Services; Ann Ball, in her official capacity as

Project Manager of Bureau of Reclamation Lahontan Basin

Project Office, Defendants-Appellees,

and

Sierra Pacific Power Company, Intervenor.

CHURCHILL COUNTY, a political subdivision of the State of

Nevada; City of Fallon, a political subdivision of the State of Nevada, Plaintiffs-Appellees, Sierra Pacific Power Company, Intervenor-Appellant, v. Bruce BABBITT, in his official capacity as Secretary of the

Interior, Defendant.

Nos. 97-15508, 97-15813.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1997.

Decided July 15, 1998.

Antonio Rossmann, Michael F. Mackedon, San Francisco, California, for the plaintiffs/appellants/cross-appellees.

William E. Peterson and Suellen Fulstone, Woodburn & Wedge, Reno, Nevada, for the intervenor-appellant.

Fred R. Disheroon, Assistant United States Attorney, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, Jr., District Judge, Presiding. D.C. Nos. CV-95-00724-ECR, CV-96-00146-ECR.

Before: WIGGINS, KLEINFELD, Circuit Judges, and DWYER, District Judge. ^*

WIGGINS, Circuit Judge:

The battle over water in the West continues in this suit by local Nevada governments challenging the Department of the Interior's implementation of a water rights acquisition program prior to producing a programmatic environmental impact statement on the interaction of the program with other related programs. The first issue in this consolidated appeal is whether the local governments have standing to bring this suit against the Secretary of the Department of the Interior and other defendants. We find that they do, and reverse the district court on that issue. The second issue is whether a local power utility has the right to intervene in the merits phase of the governments' action. We find that it does not, and affirm the district court on that issue.

I. Background

The Newlands Reclamation Project, an early federal reclamation project, has supplied water to irrigate a vast area of western Nevada for most of this century, creating a thriving agricultural community. It has also had unforeseen adverse environmental side-effects in its two divisions, the Truckee Division and the Carson Division. In particular, the Newlands Project diverted water away from wetlands in the Lahontan Valley in the Carson Division. Protracted disputes over a number of complex water issues in the Truckee and Carson river basins, including the environmental threat to these wetlands, resulted in Congress passing the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act ("Settlement Act") in 1990. See Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, Pub.L. No. 101-618, 104 Stat. 3289 (1990).

Section 206 of the Settlement Act establishes a water rights acquisition plan (the "Plan") to increase the wetlands and subsequently to sustain indefinitely approximately twenty-five thousand acres of wetlands in the Lahontan Valley. See Settlement Act, § 206 (entitled "Wetlands Protection"). Under the Plan, the United States Fish and Wildlife Service ("FWS") is authorized to purchase land (or simply water rights) in order to transfer the water rights to the Lahontan Valley wetlands (specifically, to wetlands in the Stillwater National Wildlife Refuge, Carson Lake and Pasture, and Fallon Paiute-Shoshone Indian Reservation Wetlands). The FWS is authorized to target purchases in areas most beneficial to the Plan. All purchases are to be from voluntary sellers.

In November 1996, the FWS issued its Record of Decision on the Plan. Per its pronouncements, the FWS is to purchase fifty-five thousand acre feet of water from within the Carson Division of the Newlands Reclamation Project, starting as of December 1996 (around twenty thousand acre feet in the Carson Division had already been acquired by the FWS at that time). The FWS is to seek an additional thirty-three thousand acre feet through leasing programs and other methods. Significant to this appeal, the Carson Division is located within Churchill County near the City of Fallon.

The National Environmental Policy Act ("NEPA") mandates the preparation of an environmental impact statement ("EIS") on any major Federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). When there is a regional plan or when multiple federal programs will have a "cumulative or synergistic environmental impact upon a region," the relevant agency must prepare a programmatic environmental impact statement ("PEIS") on the regional plan or on the programs' combined impact. See Kleppe v. Sierra Club, 427 U.S. 390, 400-02 & 410, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (citing § 4332(2)(C)). The Department of the Interior ("Interior") prepared a final environmental impact statement (the "FEIS") on the Plan, but refused to prepare a PEIS on the combined effect of the Plan with the other programs established by the Settlement Act affecting water in the area.

Appellants Churchill County ("County") and City of Fallon ("City") sued the Secretary of the Interior and others under the Administrative Procedure Act ("APA"). See 5 U.S.C. § 702. They alleged that Defendants violated NEPA by failing to prepare a PEIS prior to implementing the Plan. The district court held that County and City lacked standing to bring the suit. The court held that they had failed to show the imminence of injury to them from the Plan. The court therefore granted summary judgment to Defendants. County and City appeal.

A local power utility, Sierra Pacific Power Company ("Sierra Pacific"), sought to intervene as of right as a defendant in County and City's action. The district court held that Sierra Pacific could intervene, but only in the remedial phase of the trial. The court excluded it from the merits phase by holding that only the federal government can be the defendant in a NEPA action. Sierra Pacific appeals that decision limiting its intervention.

II. Standards of Review

A plaintiff's standing to sue is a question of law reviewed de novo. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997); Douglas County v. Babbitt, 48 F.3d 1495, 1499 (9th Cir.1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 698, 133 L.Ed.2d 655 (1996). On a summary judgment motion, the plaintiff bears the burden of showing specific facts as to each element of standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

A district court's ruling on a motion to intervene as of right under Federal Rule of Civil Procedure 24(a) is reviewed de novo. See Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995).

III. Plaintiffs' Standing

A. The Standard for Standing

The question of standing involves a case's justiciability under Article III of the Constitution: Whether a particular plaintiff has the right to bring a particular claim in federal court. The Supreme Court articulated the basic test for a plaintiff's standing in Lujan v. Defenders of Wildlife:

First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' " Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). This three-part test represents the "irreducible constitutional minimum" for standing. Id. at 560, 112 S.Ct. 2130. The requisite weight of proof for each element of the test is lowered, however, for "procedural standing," which is the kind of standing claimed by Plaintiffs in this case. See id. at 572 n. 7, 112 S.Ct. 2130.

Procedural standing is standing based on a plaintiff's procedural injury. A plaintiff may claim "procedural standing" when, for example, it seeks "to enforce a procedural requirement the disregard of which could impair a concrete interest of [the plaintiff's]." Id. at 572, 112 S.Ct. 2130 (giving as an example "the procedural requirement for an environmental impact statement before a federal facility is constructed next door to [plaintiffs]"). The Supreme Court recognized the lower standards of proof for such procedural standing in a footnote:

There is this much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent...