Northern Cal. River Watch v. Wilcox

Decision Date26 January 2011
Docket NumberNo. 08–15780.,08–15780.
Citation633 F.3d 766
PartiesNORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation; Robert G. Evans, Plaintiffs–Appellants,v.Carl WILCOX; Gene Cooley; Robert Floerke; William R. Schellinger; Frank H. Schellinger, individually and doing business as Schellinger Brothers; Scott Schellinger, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Jack Silver, Law Office of Jack Silver, Santa Rosa, CA, for plaintiffs-appellants Northern California River Watch and Robert G. Evans.Christopher J. Carr, Shaye Diveley, Morrison & Foerster LLP, San Francisco, CA, for defendants-appelleesWilliam R. Schellinger and Frank H. Schellinger, dba Schellinger Brothers, and Scott Schellinger.Edmund G. Brown Jr., Attorney General of the State of California, James Humes, Chief Deputy Attorney General, Matt Rodriguez, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Robert W. Byrne, Supervising Deputy Attorney General, Michael W. Neville, Deputy Attorney General, San Francisco, CA, for defendants-appelleesCarl Wilcox, Gene Cooley, and Robert Floerke.Ronald J. Tenpas, Assistant Attorney General, Andrew Mergen, Attorney, Ellen Durkee, Attorney, Bradford T. McLane, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, DC, David Gayer, of Counsel, Office of the Solicitor, United States Department of the Interior, Washington, DC, for amicus curiae United States of America.Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding.D.C.No. 3:06–CV–06685–CRB.Before: D.W. NELSON, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.

ORDER

The unopposed motion of the United States, as amicus curiae, to clarify the court's Opinion is granted as follows:

The Opinion, filed on August 25, 2010, and reported at 620 F.3d 1075(9th Cir.2010), is amended as follows:

At SlipOp. 12801, , the first full paragraph beginning with and ending with is deleted and replaced with:

The broad sweep of the Corps' authority to regulate was sharply debated in Rapanos, in which the Court split 4–1–4 with regard to the limits of the Corps' regulatory jurisdiction of non-adjacent wetlands on privately-owned land.The plurality opinion characterized the Corps' ability to regulate as overly expansive, noting that “the Corps consciously sought to extend its authority to the farthest reaches of the commerce power.”Rapanos,547 U.S. at 738, 126 S.Ct. 2208(citing42 Fed.Reg. 37,122, 37,127(1977)).Even Justice Kennedy's concurrence is based on his concern about “the potential over-breadth of the Corps' regulations.”Id. at 782, 126 S.Ct. 2208(holding that the Corps has jurisdiction on the basis of adjacency to regulate wetlands adjacent to navigable-in-fact waters, but “must establish a significant nexus on a case-by-case basis” if the wetlands are adjacent to nonnavigable tributaries).In City of Healdsburg,496 F.3d at 999–1000, the court found that Justice Kennedy's concurrence in Rapanos“provides the controlling rule of law for our case.”We did not, however, foreclose the argument that Clean Water Act jurisdiction may also be established under the plurality's standard.

An Amended Opinion is filed concurrently with this Order.

OPINION

PAEZ, Circuit Judge:

Robert Evans and Northern California River Watch (River Watch) appeal the district court's grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game(collectively Defendants).1River Watch contends that Defendants violated the Endangered Species Act(“ESA”), codified at 16 U.S.C. § 1531 et seq.Specifically, River Watch argues that Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam ( Limnanthes vinculans ) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction.2See16 U.S.C. § 1538(a)(2)(B).

The district court granted Defendants' motion for summary judgment, concluding that River Watch could not establish, as a matter of law, that the areas in which the Sebastopol meadowfoam plants were growing were “areas under Federal jurisdiction.”On appeal, we consider the meaning of the term “areas under Federal jurisdiction” as used in ESA § 9.River Watch argues that the term encompasses privately-owned wetlands adjacent to navigable waters that have been designated as “waters of the United States” by the Army Corps of Engineers.The United States, representing the interests of the Department of the Interior's Fish and Wildlife Service as amicus curiae, argues that § 9 is ambiguous, that we must apply the deference principles set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694(1984), and that under Chevron the privately-owned land at issue in this case is not an “area[ ] under Federal jurisdiction.”

Although we agree that the term “areas under Federal jurisdiction” is ambiguous, we are not convinced that the U.S. Fish and Wildlife Service (“FWS”), the agency with rule making authority, has interpreted the term.Nonetheless, for the reasons set forth in this opinion, we hold that “areas under Federal jurisdiction” does not include the privately-owned land at issue here.We therefore agree with the district court's ultimate legal conclusion in this case and affirm the grant of summary judgment to Defendants.3

I.Factual and Procedural Background

William and Frank Schellinger are brothers and business partners who seek to develop 21 acres of private property in Sebastopol, California.These 21 acres (“the Site”) are comprised of grasslands containing seasonal vernal pools, wetlands, seasonal creeks, vernal pools, and vernal swales.N. Cal. River Watch v. Wilcox,547 F.Supp.2d 1071, 1072–73(N.D.Cal.2008).The Site sits adjacent to the Laguna de Santa Rosa, a tributary of the Russian River.Id. at 1073;see alsoRussian River Watershed Prot. Comm. v. City of Santa Rosa,142 F.3d 1136, 1139(9th Cir.1998).The Russian River, as the parties acknowledge, is a navigable water of the United States.SeeN. Cal. River Watch v. City of Healdsburg,496 F.3d 993, 996(9th Cir.2007).“Navigable waters” are defined in the Clean Water Act(“CWA”) as “waters of the United States,”33 U.S.C. § 1362(7), which include wetlands adjacent to navigable waters.33 C.F.R. § 328.3(a)(7);see alsoRapanos v. United States,547 U.S. 715, 782, 126 S.Ct. 2208, 165 L.Ed.2d 159(2006).

In the course of the Schellingers' efforts to develop the Site in 2003, the United States Army Corps of Engineers (“the Corps”) designated 1.84 acres of the Site as wetlands subject to the permitting requirements of the CWA, due to their adjacency to the Laguna de Santa Rosa.4Wilcox,547 F.Supp.2d at 1073.In other words, under the CWA, this portion of the Site is considered a “navigable water.”The CWA prohibits discharges of pollutants—including dredged soil, rock, sand, and cellar dirt—into the “navigable waters of the United States,” unless one receives a special permit.33 U.S.C. §§ 1311(a),1344,1362(6);City of Healdsburg,496 F.3d at 995.The Schellingers applied for such a permit under § 401and§ 404 of the CWA, because their development plans included filling in and paving over parts of the Site designated as wetlands.

In April 2005, amateur naturalist Robert Evans was walking with his dog along one of the paths on the Site, when he found what he believed was the endangered plant species Sebastopol meadowfoam on the Site's wetlands.5See50 C.F.R. § 17.12(listing Sebastopol meadowfoam as an endangered plant species).A local biology professor determined that, although Evans had identified only the common meadowfoam, there were Sebastopol meadowfoam plants on the Site's wetlands.The professor notified the relevant federal and state authorities about the presence of the endangered plants.A biologist from the California Department of Fish and Game(“CDFG”) also surveyed the Site and confirmed the presence of Sebastopol meadowfoam, noting that the plants were healthy and that there was no evidence of ground disturbance or replanting.

After learning of the discovery of Sebastopol meadowfoam, CDFG Habitat Conservation Manager Carl Wilcox, CDFG biologist Gene Cooley, and Project Manager for the Site's development Scott Schellinger, visited the Site in order to further investigate the presence of the plants.Wilcox,547 F.Supp.2d at 1073.Wilcox confirmed that the vegetation was the endangered plant species Sebastopol meadowfoam.In examining the plants to determine whether they were rooted in the soil and thus naturally occurring, Wilcox lifted the plants, along with their substrates, out of the wetland.Because the CDFG employees suspected that the plants were not naturally occurring,6 Cooley later returned to the Site to gather evidence.Wilcox,547 F.Supp.2d at 1073.Upon his return visit, he removed the Sebastopol meadowfoam plants, placed them in plastic bags, and transported them to the local CDFG office, where he placed most of the plants in an evidence locker.Id. at 1073, 1079.

River Watch, in response to the discovery of the Sebastopol meadowfoam and the Schellingers' continuing efforts to develop the Site, filed a complaint in 2006 in the Northern District of California.Id. at 1073.River Watch alleged that the CDFG employees' treatment and removal of the plants violated ESA § 9(a)(2)(B), and named Wilcox, Cooley, and Robert Floerke(another CDFG employee) as defendants.7Seeid.River Watch sought declaratory and injunctive relief.

Under § 9(a)(2)(B), it is unlawful to remove, damage, or destroy an endangered plant species in “areas under Federal jurisdiction.”16 U.S.C. §...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
37 cases
  • McMaster v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • Septiembre 24, 2013
  • Cnty. of Amador v. U.S. Dep't of the Interior
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • Octubre 06, 2017
    ...jurisdiction" great respect.The phrase "under Federal jurisdiction," considered on its own, does not have an obvious meaning. "Jurisdiction, it has been observed, is a word of many, too many, meanings." N. Cal. River Watch v. Wilcox , 633 F.3d 766, 774 (9th Cir. 2011) (quoting Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). One possible meaning of "under Federal jurisdiction" is offered by the County: A tribe was "under...
  • Sohn v. United States
    • United States
    • U.S. District Court — Northern District of California
    • Marzo 18, 2024
    ...law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where cases involve disputes of law rather than fact the Court simply decides the legal issues. See N. Cal. River Watch v. Wilcox, 633 F.3d 766, 772 (9th Cir. 2011); Alcaraz v. Block, 746 F.2d 593, 602-03 (9th Cir. 1984). In order to establish a factual dispute, the nonmoving party must cite to relevant evidence or "show[ ] that the materials cited do not establish...
  • Koshman v. Vilsack
    • United States
    • U.S. District Court — Eastern District of California
    • Marzo 31, 2012
    ...United States, 461 U.S. 574, 586 (1983); E.E.O.C v. Nalbandian Sales, Inc., 36 F.Supp.2d1206, 1209-10 (E.D. Cal. 1998). The Committee Reports on a bill are the "'authoritative source for finding the Legislature's intent.'" Northern California River Watch v. Wilcox, 633 F.3d 766, 775 (9th Cir. 2011) (quoting Garcia v. United States, 469 U.S. 70, 76 (1984)). The Swampbuster provisions were only one portion of the Food Security Act of 1985, which was designed "to...
  • Get Started for Free
1 firm's commentaries
  • Trump Administration Begins “Round 4” in the Battle Over Clean Water Act Jurisdiction
    • United States
    • K&L Gates LLP januari 15, 2019
    ...https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update. [12] Presidential Executive Order No. 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule (Feb. 28, 2017). [13] See United States v. Donovan, 661 F.3d 174 (3d Cir. 2011); Northern California River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011); United States v. Robison, 505 F.3d 1208 (11th Cir. 2007); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); United...
1 books & journal articles
  • THE ENDANGERED SPECIES ACT AND THE COMMERCE CLAUSE: A TANGENTIAL RELATIONSHIP
    • United States
    • Endangered Species Act (FNREL) Foundation for Natural Resources and Energy Law
    ...several serious illnesses). Yet under the Endangered Species Act, the prohibition on taking endangered plants is substantially less broad than that for other species, see 16 U.S.C. § 1538(a)(2)(B); N. Cal. River Watch v. Wilcox, 633 F.3d 766, 781-82 (9th Cir. 2010), and thus embodies a vision of federal power more consistent with those who seek to limit the Act's scope. [160] Simpson, supra note 144, at 200. [161] United States v. Morrison, 529 U.S. 598, 617-18least retard a species' recovery. Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1513 (9th Cir. 1994). [23] See 50 C.F.R. § 17.31(a). [24] See 16 U.S.C. § 1538(a)(2)(B). See N. Cal. River Watch v. Wilcox, 633 F.3d 766, 781-82 (9th Cir. 2010) (holding that "areas subject to Federal jurisdiction" do not include private land subject to federal environmental law). [25] See 16 U.S.C. § 1533(a)(3)(A). [26] Id. § 1532(5)(A)(i)-(ii). [27]...