Oregon Natural Desert Ass'n v. U.S. Forest Service

• Decision Date: 11 December 2008
• Docket Number: No. 08-35205.,08-35205.
• Citation: 550 F.3d 778
• Parties: OREGON NATURAL DESERT ASSOCIATION; Western Watersheds Project; Northwest Environmental Defense Center; Oregon Wild; Center for Biological Diversity; Friends of Oregon's Living Waters, Plaintiffs-Appellants, and Forest Guardians, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

550 F.3d 778

OREGON NATURAL DESERT ASSOCIATION; Western Watersheds Project; Northwest Environmental Defense Center; Oregon Wild; Center for Biological Diversity; Friends of Oregon's Living Waters, Plaintiffs-Appellants, and Forest Guardians, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.

No. 08-35205.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2008.

Filed December 11, 2008.

David H. Becker and Peter M. Lacy, Oregon Natural Desert Association; Daniel P. Mensher, Pacific Environmental Advocacy Center; Kristin F. Ruether, Advocates for the West, for the plaintiffs-appellants.

Ronald J. Tenpas, Assistant Attorney General; Russell Young and Lisa E. Jones, United States Department of Justice Environment & Natural Resources Division, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. 07-CV-000634-KI.

Before: DAVID R. THOMPSON, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Plaintiffs-Appellants, Oregon Natural Desert Association, Western Watersheds Project, Northwest Environmental Defense Center, Oregon Wild, Center for Biological Diversity, and Friends of Oregon's Living Waters (collectively ONDA), sued Defendant-Appellee, the United States Forest Service (Forest Service), for allegedly failing to comply with § 401 of the Clean Water Act (CWA, or Act) in its issuance of grazing permits on Forest Service lands. 33 U.S.C. § 1341.¹ ONDA specifically argued that the outcome and reasoning of S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006), are clearly irreconcilable with our reasoning in Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092 (9th Cir.1998), and that Dombeck is, therefore, no longer controlling law.

The Forest Service moved for judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(c). The matter was referred to a magistrate judge, who made Findings and Recommendations suggesting that the district court grant the motion for judgment on the pleadings on the ground that ONDA's claim was barred by the doctrine of collateral estoppel. The district court adopted the Findings and Recommendations and granted the motion for judgment on the pleadings. This appeal followed. We have jurisdiction to review this decision under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

A. Statutory Background

The CWA was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101; 33 U.S.C. § 1251(a). The CWA requires, among other things, that

[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.

Id. § 401(a)(1). Any such discharge must also comply with other provisions in the CWA that establish effluent limitations and national performance standards. Id. (citing CWA §§ 301-303, 306, 307; 33 U.S.C. §§ 1311-1313, 1316, 1317).

The parties in this case dispute the meaning of the word "discharge," as used in § 401. ONDA claims that "discharge" includes "pollutants" emitted by grazing livestock in the form of sediment, fecal coliform, and fecal streptococci. The Forest Service responds that because cattle do not fall under the definition of "point sources," they are not covered under § 401.

The CWA does not define "discharge," but states that "[t]he term `discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." Id. § 502(16); 33 U.S.C. § 1362(16). The Act further defines "discharge of a pollutant" and "discharge of pollutants" to mean "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." § 502(12). Finally, the Act defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." § 502(14). All other sources of pollution are characterized as "nonpoint sources." See Or. Natural Res. Council v. U.S. Forest Serv., 834 F.2d 842, 849 n. 9 (9th Cir.1987) ("Nonpoint source pollution is not specifically defined in the Act, but is pollution that does not result from the `discharge' or `addition' of pollutants from a point source.").

The CWA's disparate treatment of discharges from point sources and nonpoint sources is an organizational paradigm of the Act. From the passage of the Act, Congress imposed extensive regulations and certification requirements on discharges from point sources, but originally relied almost entirely on state-implemented planning processes to deal with nonpoint sources, later amending the Act in 1987 to include more federal review of nonpoint sources. Id. §§ 208, 319; 33 U.S.C. §§ 1288, 1329; see also William L. Andreen, Water Quality Today—Has the Clean Water Act Been a Success?, 55 ALA. L. REV. 537, 545 n.42 (2004). Congress primarily focused its regulation under the Act on point sources, which tended to be more notorious and more easily targeted, in part because nonpoint sources were far more numerous and more technologically difficult to regulate. See S. REP. No. 92-414, at 39 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3674 (acknowledging that "many nonpoint sources of pollution are beyond present technology of control"); 118 CONG. REC. 10611, 10765 (1972), reprinted in 1 LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 8 (1973) (noting that "we do not have the technology" to deal with nonpoint sources in the same way as industrial pollution).

B. Factual and Procedural Background

On February 23, 2006, the Forest Service issued federal term grazing permit # 01825 authorizing the Colvin Cattle Company (Colvin) to graze cattle within the boundaries of the Lower Middle Fork Allotment on the Malheur National Forest. The Forest Service did not require Colvin to obtain a certificate from the State of Oregon prior to issuing the permit.

On April 26, 2007, ONDA,² along with six other environmental conservation groups, filed suit against the Forest Service alleging violation of CWA § 401. The complaint alleged that "[t]he Forest Service's authorized grazing has resulted in, and continues to result in, significant short and long-term damage to riparian resources and stream habitat throughout the Middle Fork John Day River basin." Further, it alleged that "[l]ivestock grazing is an activity that may cause discharges into navigable waters," hence "[t]he Forest Service violated [CWA § 401] by issuing federal grazing permit # 01825 when the applicant failed to provide certification from the state." The Forest Service denied the allegations contained in the complaint, and countered with affirmative defenses sounding in principles of res judicata and collateral estoppel.

Over ten years prior, in 1994, ONDA and two other groups filed a substantially identical claim against the Forest Service concerning the issuance of a grazing permit within the Malheur National Forest. See Or. Natural Desert Ass'n v. Thomas, 940 F.Supp. 1534, 1537 (D.Or.1996). ONDA sought a declaratory judgment requiring applicants for federal grazing permits to receive state certification "as a necessary precondition to the issuance of that permit." Id. at 1536-37. After analyzing the meaning of "discharge" in § 401, the Oregon district court concluded that "the plain meaning of `discharge' does not restrict the definition to point sources or nonpoint sources with conveyances." Id. at 1540. The district court rejected the Forest Service's argument that its interpretation of § 401 should receive deference, indicating that "[e]ven though nonpoint sources are not mentioned in the 1972 amendments, the court cannot construe that Congress intended to preclude their application to § 401." Id. at 1541. The district court subsequently granted ONDA's motion for declaratory judgment. Id. The Forest Service appealed.

On appeal, this court reversed the district court, holding that "the language and structure of the [CWA indicate] that the certification requirement of [§ 401] was meant to apply only to point source releases." Dombeck, 172 F.3d at 1094. Citing Ninth Circuit precedent, the court noted certain limitations of the Act.

In 1972, Congress passed the Clean Water Act, which made important amendments to the water pollution laws. The amendments place certain limits on what an individual firm could discharge ... The Act thus banned only discharges from point sources. The discharge of pollutants from nonpoint sources—for example, the runoff of pesticides from farmlands—was not directly prohibited. The Act focused on point source polluters presumably because they could be identified and regulated more easily that [sic] nonpoint source polluters.

Id. at 1096 (quoting Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1316 (9th Cir.1990)). The court further found that a cow is not a point source under the CWA, because it is "inherently mobile," and therefore directed the district court to enter judgment in favor of the Forest Service. Id. at 1099. The Supreme Court denied ONDA's petition for a writ of certiorari on November 1, 1999. 528 U.S. 964, 120 S.Ct. 397, 145 L.Ed.2d 310 (1999).

In light of the foregoing procedural history, the Forest Service responded to ONDA's 2007 complaint with a motion for...