Oregon Natural Desert Ass'n v. Dombeck, Nos. 97-35065

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtSCHROEDER
Citation172 F.3d 1092
PartiesOREGON 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.
Decision Date22 July 1998
Docket Number97-35112,Nos. 97-35065

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.

Page 1093

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

Page 1094

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.

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.

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

Page 1095

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...

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43 practice notes
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...a point source, is considered nonpoint source pollution and is not subject to federal regulation. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1095 (9th 9. National Pollutant Discharge Elimination System Permit Application Regulations for Stormwater Discharges, 55 Fed. Reg. 47,990......
  • Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest, 1:17-cv-00441-LJO-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 6, 2019
    ...849 n.9. Nonpoint sources of pollution include runoff from animal grazing and irrigated agriculture. Oregon Nat. Desert Ass'n v. Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998) ("O.N.D.A. v. Dombeck"). The parties do not dispute that "something as inherently mobile as a cow" represents a nonpo......
  • Environment. Orotect, Info. Ctr. v. Pacific Lumber, No. C 01-2821 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 6, 2003
    ...sources of pollution are only indirectly controlled through state management programs. See Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1096-97 (9th Cir.1998), cert, denied 528 U.S. 964, 120 S.Ct. 397, 145 L.Ed.2d 310 (1999). The CWA also directs the EPA to issue information on no......
  • Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest, 1:17–cv–00441–LJO–SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 6, 2018
    ...n.9. Nonpoint sources of pollution include runoff from animal grazing and irrigated agriculture. Oregon Nat. Desert Ass'n v. Dombeck , 172 F.3d 1092, 1095 (9th Cir. 1998) (" O.N.D.A. v. Dombeck "). The parties do not dispute that "something as inherently mobile as a cow" represents a nonpoi......
  • Request a trial to view additional results
37 cases
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...a point source, is considered nonpoint source pollution and is not subject to federal regulation. Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1095 (9th 9. National Pollutant Discharge Elimination System Permit Application Regulations for Stormwater Discharges, 55 Fed. Reg. 47,990......
  • Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest, 1:17-cv-00441-LJO-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 6, 2019
    ...849 n.9. Nonpoint sources of pollution include runoff from animal grazing and irrigated agriculture. Oregon Nat. Desert Ass'n v. Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998) ("O.N.D.A. v. Dombeck"). The parties do not dispute that "something as inherently mobile as a cow" represents a nonpo......
  • Environment. Orotect, Info. Ctr. v. Pacific Lumber, No. C 01-2821 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 6, 2003
    ...sources of pollution are only indirectly controlled through state management programs. See Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1096-97 (9th Cir.1998), cert, denied 528 U.S. 964, 120 S.Ct. 397, 145 L.Ed.2d 310 (1999). The CWA also directs the EPA to issue information on no......
  • Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest, 1:17–cv–00441–LJO–SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 6, 2018
    ...n.9. Nonpoint sources of pollution include runoff from animal grazing and irrigated agriculture. Oregon Nat. Desert Ass'n v. Dombeck , 172 F.3d 1092, 1095 (9th Cir. 1998) (" O.N.D.A. v. Dombeck "). The parties do not dispute that "something as inherently mobile as a cow" represents a nonpoi......
  • Request a trial to view additional results
6 books & journal articles
  • Nonpoint source pollution
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...§ 401 (emphasis added). Does “any discharge” include a discharge from an NPS? he plaintifs in Oregon Natural Desert Ass’n v. Dombeck , 172 F.3d 1092 (9th Cir. 1998), convinced the district court that it did and thus § 401 certiication was required for a permit to graze cattle on federal lan......
  • Point Source
    • United States
    • Plain meaning, precedent, and metaphysics: interpreting the elements of the clean water act offense
    • October 24, 2017
    ...the CWA’s prescription simply by having employees form a bucket brigade from a pollutant-producing facility to the 221. Id. 222. Id. 223. 172 F.3d 1092, 28 ELR 21471 (9th Cir. 1998). 224. 550 F.3d 778, 782, 39 ELR 20297 (9th Cir. 2008). Chapter 4: “Point Source” 239 river in place of a pipe......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...941 Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998) ..................960 Oregon Natural Desert Ass’n v. U.S. Forest Service, 550 F.3d 778 (9th Cir. 2008) ...... 967 Orgulf Transp. Co. v. United States, 711 F. Supp. 344, 19 ELR 21294 (W.D. Ky. 1989) .........................
  • Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Point Source' Element of the Clean Water Act Offense
    • United States
    • Environmental Law Reporter Nbr. 45-12, December 2015
    • December 1, 2015
    ...by point sources. Stormwater low and irrigation return low may include groundwater that originates in irrigation by looding. 230 226. 172 F.3d 1092, 28 ELR 21471 (9th Cir. 1998). 227. 550 F.3d 778, 782, 39 ELR 20297 (9th Cir. 2008). 228. he district court opinion, United States v. Villegas ......
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