Jones v. Gordon, Nos. 85-3739

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE and SKOPIL; WALLACE
Parties16 Envtl. L. Rep. 20,920 Tim JONES; Nancy & James Lethcoe; Wendy Simpson; Alaska Wilderness Sailing Safaris; Stan Stephens Charters; the Whale Center; Simpson's Marine Charters; the Sierra Club; Greenpeace, U.S.A.; Greenpeace, Canada; and South East Alaska Conservation Council, Inc., Plaintiffs-Appellees, and State of Alaska, Intervenor-Plaintiff-Appellee. v. William G. GORDON, Assistant Administrator for Fisheries, National Marine Fisheries Service; John V. Byrne, Administrator for the National Oceanic and Atmospheric Administration; Malcolm Baldrige, Secretary for the United States Department of Commerce; and the United States Department of Commerce, Defendants-Appellants. Tim JONES; Nancy & James Lethcoe; Wendy Simpson; Alaska Wilderness Sailing Safaris; Stan Stephens Charters; the Whale Center; Simpson's Marine Charters; the Sierra Club; Greenpeace, U.S.A.; Greenpeace, Canada; and South East Alaska Conservation Council, Inc., Plaintiffs-Appellees, and State of Alaska, Intervenor-Plaintiff-Appellee. v. William G. GORDON, Assistant Administrator for Fisheries, National Marine Fisheries Service; John V. Byrne, Administrator for the National Oceanic and Atmospheric Administration; Malcolm Baldrige, Secretary for the United States Department of Commerce; and the United States Department of Commerce, Defendants, and Sea World, Inc., Intervenor-Defendant-Appellant.
Docket Number85-3767,Nos. 85-3739
Decision Date18 June 1986

Page 821

792 F.2d 821
16 Envtl. L. Rep. 20,920
Tim JONES; Nancy & James Lethcoe; Wendy Simpson; Alaska
Wilderness Sailing Safaris; Stan Stephens Charters; the
Whale Center; Simpson's Marine Charters; the Sierra Club;
Greenpeace, U.S.A.; Greenpeace, Canada; and South East
Alaska Conservation Council, Inc., Plaintiffs-Appellees,
and
State of Alaska, Intervenor-Plaintiff-Appellee.
v.
William G. GORDON, Assistant Administrator for Fisheries,
National Marine Fisheries Service; John V. Byrne,
Administrator for the National Oceanic and Atmospheric
Administration; Malcolm Baldrige, Secretary for the United
States Department of Commerce; and the United States
Department of Commerce, Defendants-Appellants.
Tim JONES; Nancy & James Lethcoe; Wendy Simpson; Alaska
Wilderness Sailing Safaris; Stan Stephens Charters; the
Whale Center; Simpson's Marine Charters; the Sierra Club;
Greenpeace, U.S.A.; Greenpeace, Canada; and South East
Alaska Conservation Council, Inc., Plaintiffs-Appellees,
and
State of Alaska, Intervenor-Plaintiff-Appellee.
v.
William G. GORDON, Assistant Administrator for Fisheries,
National Marine Fisheries Service; John V. Byrne,
Administrator for the National Oceanic and Atmospheric
Administration; Malcolm Baldrige, Secretary for the United
States Department of Commerce; and the United States
Department of Commerce, Defendants,
and
Sea World, Inc., Intervenor-Defendant-Appellant.
Nos. 85-3739, 85-3767.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 13, 1986.
Decided June 18, 1986.

Page 822

Lauri J. Adams, Juneau, Alaska, for plaintiffs-appellees.

Eileen Sobeck, Wildlife & Marine Resources Section, Washington, D.C., for defendants-appellants.

Laura Davis, Office of the Atty. Gen., Juneau, Alaska, for intervenor, State of Alaska.

Michael T. Thomas, Anchorage, Alaska, for intervenor Sea World.

Appeal from the United States District Court for the District of Alaska.

Before WALLACE and SKOPIL, Circuit Judges, and HENDERSON, * District Judge.

WALLACE, Circuit Judge:

The National Marine Fisheries Service (the Service) 1 and Sea World, Inc. (Sea World) appeal from a district court order granting summary judgment in favor of Jones, other tour boat operators, environmental organizations, and the State of Alaska (hereafter referred to collectively as Jones). The district court declared that a Service permit authorizing Sea World to

Page 823

capture killer whales was invalid and void because the Service had failed to prepare an environmental impact statement. The district court further enjoined Sea World from capturing killer whales pursuant to the permit. Jones v. Gordon, 621 F.Supp. 7 (D. Alaska 1985). We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse in part.
I

In March 1983, Sea World, an operator of aquatic zoological parks, applied to the Service for a permit to capture killer whales (Orcinus orca ) for purposes of scientific research and public display. The Marine Mammal Protection Act of 1972 (the MMPA), 16 U.S.C. Secs. 1361-1407, imposes a general moratorium on the taking of marine mammals, including killer whales. MMPA Sec. 101(a), 16 U.S.C. Sec. 1371(a). One exception to this moratorium authorizes permits "for taking ... for purposes of scientific research and for public display." MMPA Sec. 101(a)(1), 16 U.S.C. Sec. 1371(a)(1). Section 104 of the MMPA, 16 U.S.C. Sec. 1374, governs the issuance of such permits. The Secretary of Commerce has delegated responsibility for issuing permits authorizing the taking of killer whales, see MMPA Secs. 3(11)(A), 104(a), 16 U.S.C. Secs. 1362(11)(A), 1374(a), to the National Oceanic and Atmospheric Administration (the Administration) and its subagency, the Service.

In its permit application, Sea World requested permission to collect up to 100 killer whales over a five-year period from Alaska and California coastal waters. Up to ten killer whales would be maintained permanently in captivity for research and display, and up to 90 would be held temporarily (no more than three weeks) for research. The numerous scientific tests proposed included liver biopsies, gastric lavages, hearing and respiratory tests, tooth extractions, and blood tests. Sea World also proposed to tag, mark, and attach radio transmitters to killer whales held temporarily.

Pursuant to MMPA Sec. 104(d)(2), 16 U.S.C. Sec. 1374(d)(2), the Service in March 1983 published notice in the Federal Register of Sea World's application and invited public comment. The Service extended the public comment period four times until it closed in August 1983. During this time, the Service received approximately 1,200 comments supporting the application and 1,000 comments opposing part or all of it. In response to requests for a public hearing, the Service also held a two-day hearing on the permit application in August 1983.

On November 1, 1983, the Service issued a permit to Sea World authorizing the permanent removal of up to 10 killer whales and the temporary capture of up to 90. The permit imposed several conditions not present in Sea World's original application. For example, Sea World was required to conduct a study of local killer whale population in Alaska areas and to submit a report to the Service. No captures could be conducted without further authorization by the Service, and the length of temporary captures was restricted. No more than 2% of a local population could be permanently removed over a two-year period, and no more than two animals could be removed from a distinct social group (pod). Killer whales temporarily captured could be recaptured no more than twice. Many of the planned tests also required further authorization by the Service.

On May 1, 1984, Jones sought declaratory and injunctive relief against the Service in federal district court, alleging that the Service's issuance of the permit without preparation of an environmental impact statement violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Sec. 4332(2)(C). Sea World intervened as a defendant, and the State of Alaska intervened as a plaintiff. On cross-motions for summary judgment, the district court granted summary judgment in favor of Jones, declared the Service permit void and invalid, and enjoined Sea World from capturing killer whales pursuant to the permit.

Page 824

II

The Service and Sea World first challenge the district court's exercise of jurisdiction. They base their challenge on section 104(d)(6) of the MMPA, which provides:

Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review, which shall be pursuant to chapter 7 of Title 5, may be initiated by filing a petition for review in the United States district court for the district wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia, within sixty days after the date on which such permit is issued or denied.

16 U.S.C. Sec. 1374(d)(6). The Service and Sea World contend that Jones's action is barred by the 60-day statute of limitations of section 104(d)(6) since Jones did not file his action until six months after the Service issued the permit to Sea World.

The district court rejected this jurisdictional challenge. The district judge ruled that section 104(d)(6) did not apply to Jones's action since Jones, rather than disputing the "terms and conditions" of the permit, alleged that the Service had failed to comply with the procedural requirements of NEPA. The district judge further ruled that NEPA itself provided an independent source of jurisdiction for Jones's action. We review de novo the district court's determination of subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983).

We agree with the district court that section 104(d)(6) does not apply to Jones's action. Section 104(d)(6) does not purport to govern all challenges to section 104 permits. Rather, as to permits issued, it governs "judicial review of the terms and conditions " of such permits. MMPA Sec. 104(d)(6), 16 U.S.C. Sec. 1374(d)(6) (emphasis added). As we read this plain language, section 104(d)(6) applies only to review of the substantive elements of a section 104 permit.

Jones's action does not seek review of the terms and conditions of the Service's permit to Sea World. Jones has instead alleged that the Service, by not preparing an environmental impact statement, has violated the procedural requirements of NEPA. We recognize, of course, that this procedural claim may indirectly implicate some of the terms and conditions of the permit. Nevertheless, we have no difficulty concluding that Jones's challenge is essentially procedural in character. Because Jones does not seek review of the terms and conditions of the permit, we hold that section 104(d)(6) and its 60-day statute of limitations do not operate to bar Jones's action.

Because section 104(d)(6) does not provide jurisdiction in this case, we now must determine whether the district court had a different source of jurisdiction to entertain Jones's action. The district judge found that NEPA itself provided an independent jurisdictional basis. We need not reach that issue because jurisdiction over Jones's action arose from the combined operation of 28 U.S.C. Sec. 1331, NEPA, and the Administrative Procedure Act (APA) Sec. 10(a), 5 U.S.C. Sec. 702. Under 28 U.S.C. Sec. 1331, the district courts have original jurisdiction of all civil actions arising under the laws of the United States. Jones's action arises under APA Sec. 10(a), which gives a right of action to a "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." See, e.g., California v. Watt, 683...

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    • U.S. Court of Appeals — Ninth Circuit
    • August 18, 2008
    ...no significant environmental impact, remand for preparation of an EA is likewise the proper [538 F.3d 1179] remedy. See Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir.1986) (remanding where agency failed to prepare any NEPA document before issuing permit). And where an agency determines tha......
  • Friends of the Earth v. Hintz, No. 84-4176
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
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    ...permit the effect of mitigation measures to be considered in determining whether preparation of an EIS is necessary. Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.1986); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at In its EA issued December 21, 1982, the Corps determined that w......
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    ...federal action and the federal agency involved must conduct an EA and possibly an EIS before granting it.” Id. (citing Jones v. Gordon, 792 F.2d 821, 827–29 (9th Cir.1986); Port of Astoria v. Hodel, 595 F.2d 467, 478–79 (9th Cir.1979)). For this reason, the court held “that the issuance of ......
  • Westlands Water Dist. v. US Dept. of Interior, No. CV-F-93-5327 OWW SSH.
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 3, 1994
    ...there is an "irreconcilable and fundamental" statutory conflict, no environmental impact statement is required. Id.; Jones v. Gordon, 792 F.2d 821 (9th Cir.1986). The existence of an irreconcilable and fundamental conflict gives rise to a potential exemption from the requirement for the pre......
  • Request a trial to view additional results
77 cases
  • Center for Biological Diversity v. Nhtsa, No. 06-71891.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 18, 2008
    ...no significant environmental impact, remand for preparation of an EA is likewise the proper [538 F.3d 1179] remedy. See Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir.1986) (remanding where agency failed to prepare any NEPA document before issuing permit). And where an agency determines tha......
  • Friends of the Earth v. Hintz, No. 84-4176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 12, 1986
    ...permit the effect of mitigation measures to be considered in determining whether preparation of an EIS is necessary. Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.1986); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d at In its EA issued December 21, 1982, the Corps determined that w......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...federal action and the federal agency involved must conduct an EA and possibly an EIS before granting it.” Id. (citing Jones v. Gordon, 792 F.2d 821, 827–29 (9th Cir.1986); Port of Astoria v. Hodel, 595 F.2d 467, 478–79 (9th Cir.1979)). For this reason, the court held “that the issuance of ......
  • Westlands Water Dist. v. US Dept. of Interior, No. CV-F-93-5327 OWW SSH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 3, 1994
    ...there is an "irreconcilable and fundamental" statutory conflict, no environmental impact statement is required. Id.; Jones v. Gordon, 792 F.2d 821 (9th Cir.1986). The existence of an irreconcilable and fundamental conflict gives rise to a potential exemption from the requirement for the pre......
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5 books & journal articles
  • List of Case Citations
    • United States
    • Wetlands deskbook. 4th edition Appendices
    • April 11, 2015
    ...455 U.S. 1017 (1932) ................................................................................................149 Jones v. Gordon, 792 F.2d 821, 16 ELR 20920 (9th Cir. 1986) ............................................126 Jones v. Thorn, 1999 U.S. Dist. LEXIS 18777 (D. Or. Nov. 5, 19......
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    • United States
    • Wetlands deskbook. 4th edition -
    • April 11, 2015
    ...1985). 514. See Louisiana v. Lee, 758 F.2d 1081, 1083, 15 ELR 20609 (5th Cir. 1985), cert. denied , 475 U.S. 1044 (1986); Jones v. Gordon, 792 F.2d 821, 827, 16 ELR 20920 (9th Cir. 1986); Sierra Club v. U.S. Anny Corps of Engineers, 701 F.2d 1011, 1030, 13 ELR 20326 (2d Cir. 1983); Township......
  • Federal Wetlands Law Permits Under §404
    • United States
    • Wetlands Deskbook Part I. Clean Water Act §404 Programs
    • November 11, 2009
    ...1985). 385. See Louisiana v. Lee, 758 F.2d 1081, 1083, 15 ELR 20609 (5th Cir. 1985), cert. denied , 475 U.S. 1044 (1986); Jones v. Gordon, 792 F.2d 821, 827, 16 ELR 20920 (9th Cir. 1986); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1030, 13 ELR 20326 (2d Cir. 1983); Township......
  • List of Case Citations
    • United States
    • Wetlands Deskbook Appendices
    • November 11, 2009
    ...Johnson v. U.S. Army Corps of Eng’rs, 6 F. Supp. 2d 1105 (D. Minn. 1998) ......................................106 Jones v. Gordon, 792 F.2d 821, 16 ELR 20920 (9th Cir. 1986) ............................................................ 97 Jones v. Thorn, 1999 U.S. Dist. LEXIS 18777 (D. Or. ......
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