Rattlesnake Coalition v. U.S. E.P.A., No. 05-36097.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGould
Citation509 F.3d 1095
PartiesThe RATTLESNAKE COALITION, Plaintiff-Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Michael O. Leavitt, Administrator of the U.S. EPA; City of Missoula, a municipality organized under the laws of Montana, Defendants-Appellees.
Docket NumberNo. 05-36097.
Decision Date07 December 2007
509 F.3d 1095
The RATTLESNAKE COALITION, Plaintiff-Appellant,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; Michael O. Leavitt, Administrator of the U.S. EPA; City of Missoula, a municipality organized under the laws of Montana, Defendants-Appellees.
No. 05-36097.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 25, 2007.
Filed December 7, 2007.

[509 F.3d 1098]

Craig Murdock, San Francisco, CA; Carolyn K. Vinci, Missoula, MT, for plaintiff-appellant, The Rattlesnake Coalition.

Marilyn Kuray, Office of General Counsel, Environmental Protection Agency, Washington, DC; Sue Ellen Wooldridge, Assistant United States Attorney General, Washington, DC; David C. Shilton, Lauren Fischer, Jennifer L. Scheller, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for defendant-appellee, United States of America.

Jim Nugent, City Attorney, and Susan A. Firth, Deputy City Attorney, Missoula, MT, for defendant-appellee, City of Missoula.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-04-00087-DWM.

Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:


The Rattlesnake Coalition ("The Coalition") appeals the district court's dismissal for lack of subject matter jurisdiction and lack of standing of its action against the United States Environmental Protection Agency ("the EPA"), the Administrator of the EPA, and the City of Missoula ("Missoula"). The Coalition brought suit under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, seeking injunctive, declaratory, and other relief related to the preparation of Environmental Assessments ("EAs") and Environmental Impact Statements ("EISs") prior to implementation of the Missoula Wastewater Facilities Plan Update ("MWFPU"). The Coalition argues that the district court erred by evaluating its complaint as two separate NEPA claims relating to two constituent projects of the MWFPU, and thereby concluding that the MWFPU itself was not a single, major federal action subject to NEPA regulations. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

I

In the 1980s Missoula planned and made many improvements to its wastewater treatment and collection system. In 1995, Missoula created the Wastewater Advisory Group, consisting of representatives from city and county departments, to lead the efforts to update the 1984 wastewater treatment plan. In 1999, Missoula published the MWFPU, which identified improvements

509 F.3d 1099

necessary over a fifty-year period and suggested the implementation of several projects costing more than $88 million. MWFPU's goals included developing plans for wastewater treatment to protect the Clark Fork River and for serving unsewered areas with a wastewater collection and treatment system. Federal funds were not used in the creation of MWFPU.

In 1998, Missoula applied for a grant of $5 million from the EPA to support completion of the wastewater treatment plant upgrade ("WTPU"), a constituent project of MWFPU. The EPA awarded the grant on September 21, 1998, subject to the EPA's NEPA review. The NEPA review consisted first of the EPA's adoption of an EA prepared by the Montana Department of Environmental Quality ("DEQ") to assess the environmental impact of the projects identified in MWFPU. Also, on June 6, 2000, the EPA signed a Finding of No Significant Impact ("FONSI") for MWFPU, which it published in the Missoulian newspaper on June 18, 2000. The EPA received no significant comments regarding the FONSI, and on July 31, 2000, the EPA notified Missoula of its final approval of MWFPU for purposes of the $5 million grant.

From November 29, 2000 to September 8, 2003, the EPA dispensed all of the $5 million grant. Missoula completed the WTPU in October 2004, expending the entirety of the federal grant in the completion of the project.

In 2004, the United States Congress appropriated to the EPA $500,000 earmarked for Missoula's Rattlesnake Sewer Project ("RSP"). On May 6, 2004, the EPA regional office advised Montana DEQ that the EPA would undertake a NEPA review specific to the RSP. On July 27, 2004, Missoula applied to the EPA for a grant of the money from the 2004 appropriation.

On May 7, 2004, the Coalition filed a complaint against the EPA and Missoula alleging that the EPA should have prepared an EIS on both the WTPU and the RSP. The Coalition sought declaratory, injunctive and other relief against the EPA and Missoula to prevent Missoula from taking any action related to the planned construction of the RSP until the EPA complied with NEPA.

Both the EPA and Missoula filed Federal Rule of Civil Procedure 12(b)(1) motions to dismiss for lack of subject matter jurisdiction. The district court granted both defendants' motions, concluding that Missoula's MWFPU was not a major federal action triggering NEPA's application. The district court interpreted the Coalition's complaint as alleging two separate NEPA violations: one relating to the WTPU grant and one relating to the application for RSP funding.

The district court concluded that the Coalition did not have constitutional standing with regard to the $5 million grant to Missoula in 1998 for the WTPU, concluding that any harm it suffered was not redressable because the upgrades were complete and the federal funds were expended. As for the 2004 RSP appropriation, the district court ruled that it lacked subject matter jurisdiction because the EPA had not taken a final agency action as required to trigger application of NEPA.

The district court also concluded that it lacked subject matter jurisdiction to hear the Coalition's claims against Missoula. The district court based its dismissal on the fact that Missoula, as a non-federal actor, was not subject to the requirements of NEPA. The district court further held that the Coalition lacked standing to bring the action because Missoula could finance the construction of the RSP solely with state funds and avoid NEPA requirements altogether.

On September 30, 2005, the district court filed an order dismissing the case

509 F.3d 1100

against both Missoula and the United States for lack of standing and lack of subject matter jurisdiction. The Coalition timely appealed.

II

We review de novo a district court's dismissal for lack of subject matter jurisdiction. Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n. 2 (9th Cir. 2004). The district court's factual findings relevant to its determination of lack of subject matter jurisdiction, however, are reviewed for clear error. United States v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir.2002). We also review de novo a district court's determination of a party's standing to bring suit. Buono v. Norton, 371 F.3d 543, 546 (9th Cir.2004).

III

Preliminarily, the United States argues that the Coalition waived its ability to oppose the district court's rulings by failing in its opening brief to challenge the district court's determination that (1) the Coalition lacked standing because any injury it suffered from the WTPU is not redressable, and (2) the district court lacked jurisdiction over disposition of the claim regarding the RSP because there has been no final agency action by the EPA. We reject this argument because the Coalition challenged both of the district court's findings in its opening brief.

The Federal Rules of Appellate Procedure require that a brief contain the "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies...." Fed. R.App. P. 28(a)(9)(A). Issues raised in an opening brief but not supported by argument are considered abandoned. Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1992); Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985) ("[W]e will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in the appellant's opening brief.").

The Coalition's opening brief challenges both of the district court's rulings in the body of its opening brief. The Coalition's discussion of what constitutes a major federal action under NEPA and its argument that the district court should have evaluated the MWFPU as a single, major federal action instead of separately evaluating the WTPU and the RSP, constitute a challenge to the district court's dismissal for lack of standing. The Coalition also contends in its opening brief that the EPA waived sovereign immunity under the Administrative Procedure Act ("APA") so that NEPA provides jurisdiction for this action.

The Coalition's opening brief mounts an attack on both of the district court's rulings. We therefore reject the waiver argument presented by the United States and proceed to analyze the Coalition's appeal.

IV

We first address the Coalition's claim that the district court erred in evaluating the complaint as containing two separate NEPA claims involving two distinct projects. The Coalition argues that the district court should have evaluated the MWFPU to determine if it, and not its constituent projects, was a single, major federal action. The Coalition contends that had the district court found MWFPU to be a major federal action, it would have found that the Coalition's injury was redressable in the form of adequate environmental review of the uncompleted portion of the MWFPU in accordance with NEPA and a stay of further construction of the

509 F.3d 1101

project until that review is completed. The Coalition's argument fails, however, because there is insufficient federal control over MWFPU to make it a major federal action under NEPA.

To trigger the application of NEPA, an action must...

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199 practice notes
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    ...an agency when an individual has suffered 'a legal wrong because of agency action' . . . ." Rattlesnake Coalition v. United States EPA, 509 F.3d 1095, 1103 (9th Cir. 2007) (quoting 5 U.S.C. § 702). For § 702 claims, 5 U.S.C. § 706 "prescribes standards for judicial review and demarcates wha......
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    ...subject matter jurisdiction has the burden of proving its existence." Rattlesnake Coalition v. United States Envtl. Protection Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). B. RULE 12(B)(6) A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fai......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 19, 2016
    ...affected or aggrieved by agency action within the meaning of a relevant statute.' " Rattlesnake Coalition v. U.S. Envtl. Prot. Agency , 509 F.3d 1095, 1103 (9th Cir.2007) (quoting 5 U.S.C. § 702 ). 5 U.S.C. § 706(1) authorizes a court to "compel agency action unlawfully withheld or unreason......
  • Ecological Rights Found. v. Pacific Gas & Elec. Co., Case No. C 09–03704 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 31, 2011
    ...“Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1102 n. 1 (9th Cir.2007).B. Rule 12(b)(6) A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff f......
  • Request a trial to view additional results
199 cases
  • Vietnam Veterans of Am. v. Cent. Intelligence Agency, No. C 09-0037 CW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 24, 2013
    ...an agency when an individual has suffered 'a legal wrong because of agency action' . . . ." Rattlesnake Coalition v. United States EPA, 509 F.3d 1095, 1103 (9th Cir. 2007) (quoting 5 U.S.C. § 702). For § 702 claims, 5 U.S.C. § 706 "prescribes standards for judicial review and demarcates wha......
  • Choudhuri v. Wells Fargo Bank, N.A., Case No: C 11-00518 SBA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 25, 2011
    ...subject matter jurisdiction has the burden of proving its existence." Rattlesnake Coalition v. United States Envtl. Protection Agency, 509 F.3d 1095, 1102 n.1 (9th Cir. 2007). B. RULE 12(B)(6) A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fai......
  • Asmai v. Johnson, No. 2:14-CV-2619-TLN-AC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 19, 2016
    ...affected or aggrieved by agency action within the meaning of a relevant statute.' " Rattlesnake Coalition v. U.S. Envtl. Prot. Agency , 509 F.3d 1095, 1103 (9th Cir.2007) (quoting 5 U.S.C. § 702 ). 5 U.S.C. § 706(1) authorizes a court to "compel agency action unlawfully withheld or unreason......
  • Ecological Rights Found. v. Pacific Gas & Elec. Co., Case No. C 09–03704 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 31, 2011
    ...“Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1102 n. 1 (9th Cir.2007).B. Rule 12(b)(6) A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff f......
  • Request a trial to view additional results

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