Northern Cal. River Watch v. Wilcox, No. 08–15780.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before: D.W. NELSON, WILLIAM A. FLETCHER, and RICHARD A. PAEZ, Circuit Judges.
• Citation: 633 F.3d 766
• Parties: NORTHERN 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.
• Docket Number: No. 08–15780.
• Decision Date: 26 January 2011

633 F.3d 766
11 Cal. Daily Op. Serv. 1170
2011 Daily Journal D.A.R. 1479

NORTHERN 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.

No. 08–15780.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2009.Filed Aug. 25, 2010.Amended Jan. 26, 2011.

[633 F.3d 768]

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-appellees William 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-appellees Carl 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 Slip Op. 12801, [620 F.3d at 1089–90], the first full paragraph beginning with and ending with is deleted and replaced with:

[633 F.3d 769]

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 (citing 42 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”).1 River 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.² See 16 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.”

[633 F.3d 770]

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 also Russian 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. See N. 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 also Rapanos 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.⁴ Wilcox, 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 § 401 and § 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.⁵ See 50 C.F.R. § 17.12

[633 F.3d 771]

(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.⁷ See id. River Watch sought declaratory and injunctive relief.

Under § 9(a)(2)(B), it is unlawful to remove, damage, or destroy an endangered...