FERGUSON, Circuit Judge:
Plaintiffs-appellants Oregon Natural Resources Council, Inc. ("ONRC"), Breitenbush Community, Inc., and Michael Donnelly appeal the district court's denial of their motion for summary judgment and motion for preliminary injunction. The plaintiffs also appeal the court's order granting summary judgment for defendants-appellees United States Forest Service ("USFS") and Bugaboo Timber Co. ("Bugaboo"). Plaintiffs seek to enjoin Bugaboo from harvesting timber pursuant to a timber sale awarded Bugaboo by the USFS. We affirm in part and reverse in part.
Plaintiffs raise three issues on appeal. First, plaintiffs claim that the USFS violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, because the USFS did not abide by its own regulations and improperly dismissed plaintiffs' administrative appeal concerning the USFS's Environmental Assessment ("EA") of the
In 1977, the USFS adopted a final programmatic Environmental Impact Statement ("EIS") on Multiple Use Land Management and Time Management Plans for Willamette National Forest. The EIS divided the forest into five planning units, one of which, the North Santiam Planning Unit, contains the North Roaring Devil timber sale, the subject of this lawsuit. In 1980, the USFS completed an EA for the North Roaring Devil timber sale and made a Finding of No Significant Impact ("FONSI"). No administrative challenge was made at that time. In 1981, the USFS sold the North Roaring Devil timber to a private company. However, no harvesting took place and the sale was later returned by the buyer to the USFS in accordance with the Federal Timber Contract Payment Modification Act of 1984 ("FTCPMA"), 16 U.S.C. § 618 et seq. Pursuant to the FTCPMA, the USFS modified and reoffered the sale on December 5, 1985.
On January 20, 1986, the plaintiffs sought to appeal the reoffer pursuant to USFS regulations, which state that "[d]ecisions of Forest Officers concerning the National Forest System ... are subject to appeal." 36 C.F.R. § 211.18(a)(1). The USFS dismissed the appeal, claiming that it was untimely because it was not filed within forty-five days of the original decision to sell the timber, made on September 29, 1980. See 36 C.F.R. § 211.18(c)(1). Thereafter, the USFS awarded the timber sale to Bugaboo on October 1, 1986. On October 20, 1986, plaintiffs sought to appeal the award of the resale. The USFS again dismissed the appeal as untimely.
The present action was filed on October 21, 1986. The winter months prevented the timber company from taking further action. On January 7, 1987, plaintiffs filed a motion to amend their complaint to include a NEPA claim and a claim under the Endangered Species Act, 16 U.S.C. § 1536(c)(1), concerning the Northern Spotted Owl. The district court temporarily denied the amendment. On March 26, 1987, the court allowed the amendment after it segregated the issues for discovery and trial at a later date. On May 7, 1987, the district court issued an opinion denying plaintiffs' motions for summary judgment and injunctive relief and granting summary judgment for defendants, 659 F.Supp. 1441. Plaintiffs timely appeal.
We review de novo the district court's grant of summary judgment. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We must decide, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.
We will reverse the grant or denial of a preliminary injunction only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985).
Plaintiffs argue that the reoffer of the North Roaring Devil timber sale constitutes a "decision" by the USFS which is subject to administrative appeal. The regulations upon which plaintiffs rely state that "[d]ecisions of Forest Officers concerning the National Forest System ... are subject to appeal." 36 C.F.R. § 211.18(a)(1). The USFS dismissed plaintiffs'
The FTCPMA provides that:
16 U.S.C. § 618(a)(5)(A).
The district court concluded that in providing for priority reoffers of timber from returned contracts, Congress did not contemplate full review of the earlier decision to sell the timber. Thus, the court concluded that "the reoffer of the North Roaring Devil sale does not constitute a `decision' within the meaning of 36 C.F.R. § 211.18(a)(1) and USFS did not violate its regulations when it dismissed the appeal as untimely."
Plaintiffs assert, however, that although Congress intended that the USFS move expeditiously to reoffer returned sales, it did not withdraw discretion from the agency to modify or withdraw such sales in appropriate circumstances. According to plaintiffs, the USFS must make a "decision" for each returned sale to determine whether to reoffer the sale and to determine the terms of the reoffer.
Plaintiffs refer to section 320 of the Department of the Interior and Related Agencies Appropriation Act, Pub.L. 99-591, 100 Stat. 3341-287, which was signed into law on October 30, 1986, to buttress their argument. Following passage of the FTCPMA, a controversy existed concerning the nature of administrative review Congress intended to allow for the reoffered sales. In response to this controversy, the Committee on Appropriations recommended that returned or defaulted sales which complied with existing environmental and other statutes and standards at the time of the original sale should "not be subject to further administrative or judicial appeal or review." S.Rep. No. 397, 99th Cong., 2d Sess. 66 (1986). The Conference Committee that prepared the final enacted version of the provision rejected this language. Instead, the Committee adopted the following:
Pub.L. No. 99-591, § 320, 100 Stat. 3341-287 (Oct. 30, 1986) (emphasis added).
Plaintiffs contend that the change from the original Senate language to the final statutory text makes it clear that Congress intended to abbreviate the administrative review of reoffered sales.
The district court further concluded that, even if Congress intended to mandate one level of administrative appeal, Congress did not intend section 320 to apply retroactively. Section 320 was enacted on October 30, 1986, twenty-nine days after the North Roaring Devil timber sale was awarded. The court also noted that the modification made by the USFS on December 4, 1985, after the sale was returned but before it was reoffered, reduced the amount of timber to be cut, and reduced the impacts to the Spotted Owl management area without adding any new land to the sale. The court concluded that it would be inappropriate to entertain a full-scale appeal of plaintiffs' claims when all the modifications appeared to be beneficial to plaintiffs.
We conclude that the regulations, and the statutory language of section 320 and its legislative history, support plaintiffs' position. The reoffer by the USFS of a returned timber sale is a decision within the meaning of 36 C.F.R. § 211.18(f)(1), which provides for administrative appeals. The legislative history of the FTCPMA reveals that a reoffer requires the exercise of discretionary judgment and, thus, a decision by the USFS.
We do not apply section 320 retroactively. Section 320 and its legislative history disclose that Congress was aware of existing administrative rights under the regulations. Section 320 acted as a limitation on these rights. Since neither the FTCPMA nor section 320 specifically withdrew the rights but only limited them, we agree with plaintiffs that they are entitled to the administrative appeals set forth in the regulations.
Finally, the district court's conclusion that the 1985 modification was favorable to plaintiffs is irrelevant in deciding plaintiffs' claim that they are entitled to an administrative appeal of the reoffer. If the USFS determines that plaintiffs' claims lack merit, it may so decide. However, the procedural question presented here is a separate issue. We therefore reverse the district court's decision and direct that the case be remanded to the USFS for proper administrative review.
Upon reaching the merits, the district court ruled that the programmatic EIS and the EA satisfied the NEPA. On appeal, plaintiffs argue that defendants have not adequately considered cumulative impacts from other sales. Plaintiffs also argue that the EA fails to consider cumulative impacts from the adjacent Craig Timber Sale and that the EA fails to disclose violations of Oregon water quality standards. Defendants allege that the plaintiffs are barred by collateral estoppel from challenging the EA. The district court did not address this issue. Although mischaracterized
The USFS first prepared an EA on the North Roaring Devil timber sale in 1980 and sold the timber in 1981. There was a specified period during which plaintiffs, or any other interested individuals or organizations, could have challenged the EA. No challenge was made. Essentially, defendants contend that plaintiffs had a full and fair opportunity to challenge the manner in which the USFS fulfilled its NEPA obligations and, since plaintiffs failed to challenge the EA then, they should not be permitted to challenge it now.
Insofar as plaintiffs challenge the EA without referring to changed circumstances which may have occurred during the five years or without alleging environmentally significant modifications the USFS made after the timber sale was returned, the defendants' position is legitimate. Plaintiffs should not be allowed a second chance at administrative and judicial review when they failed timely to appeal the original EA.
As stated above, however, plaintiffs are entitled to the administrative appeals set forth in the regulations. If the USFS finds that the EA was not previously challenged and that plaintiffs are time-barred from challenging it because they fail to allege changed circumstances or environmentally significant modifications not addressed earlier, the USFS may so rule in rejecting plaintiffs claims. Until that time, the court cannot review the adequacy of the EA or defendants' argument that plaintiffs are time-barred from raising the issue. Thus, we vacate that portion of the district court's opinion that addresses plaintiffs' NEPA claims.
The district court did not address the question of whether the USFS violated NEPA by permitting logging in an area which presently is under consideration for protection as a Spotted Owl habitat. Plaintiffs' original complaint did not allege a Spotted Owl claim under NEPA or the Endangered Species Act, 16 U.S.C. § 1536(c)(1). On January 9, 1987, the plaintiffs filed a motion to amend their complaint to include the Spotted Owl claims.
Plaintiffs contend that the district court erred in refusing to consider the Spotted Owl claim prior to the initiation of the timber harvesting. Plaintiffs claim that the district court's segregation of the Spotted Owl claims effectively condones the USFS's violation of the Council on Environmental Quality (CEQ) regulations.
The applicable regulation states that before a final decision is made on an EIS (the Spotted Owl EIS in this case), "no action concerning the proposal shall be taken which would ... [l]imit the choice of reasonable alternatives." 40 C.F.R. § 1506.1(a)(2). Plaintiffs argue that the USFS's decision to proceed with the timber sale effectively limits the reasonable alternatives set forth in the Spotted Owl EIS before the USFS has made its final decision on that EIS. Plaintiffs claim that the district court's decision sanctions such a limitation and is therefore erroneous.
We find that the district court did not abuse its discretion in segregating the Spotted Owl claim. Plaintiffs did not seek to amend their complaint until the hearing was close at hand. Plaintiffs do not allege that they were unaware of the Northern Spotted Owl up until that time or that relevant information concerning the Spotted Owl was obtainable only through discovery. Further, the plaintiffs ostensibly can challenge the adequacy of that EIS in a separate proceeding. We conclude, therefore, that despite the impact of the district court's decision, it was not improper, considering the late timing of plaintiffs' amended complaint.
Plaintiffs allege that the road building and timber harvesting associated with the timber sale violate Oregon state water quality standards
Plaintiffs claim that the district court erred when it concluded that plaintiffs could not bring a CWA action under section 1365 of the Act (the citizen suit provision) because they failed to provide a sixty-day notice. 33 U.S.C. § 1365(b)(1). Plaintiffs argue that their action is not brought pursuant to section 1365 but instead is brought under the judicial review provision of the APA, 5 U.S.C. §§ 701-706, or, in the alternative, that they gave adequate notice under the CWA.
Defendants argue that plaintiffs failed to meet the sixty-day notice under the CWA citizen suit provision or, in the alternative, that plaintiffs are not entitled to bring an action under the CWA because the CWA permits citizen suit enforcement of state water quality standards only to the extent that the requirements are conditions of permits issued under the National Pollutant Discharge Elimination System ("NPDES") established under the Act, 33 U.S.C. § 1342. Because plaintiffs do not allege such violations, defendants state that plaintiffs are without a remedy under the Act.
Before we decide whether plaintiffs must comply with the sixty-day notice requirement, we must first resolve the issue concerning whether plaintiffs have a cause of action under the citizen suit provision of the Act, and thus whether the sixty-day notice requirement is applicable. See 33 U.S.C. § 1365(b)(1). Initially, we must consider the language of the citizen suit provision. The provision states that any citizen may commence a civil action "against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter." 33 U.S.C. § 1365(a). Section 1365(f) defines "effluent standard or limitation" as "an unlawful act under subsection (a) of section 1311 ... [or] an effluent limitation or other limitation under section 1311 or 1312 of this title." Plaintiffs concede that section 1311(a) of the Act refers specifically to point source discharges,
We are asked, however, to examine section 1311(b)(1)(C), which lists additional enforceable standards, including state water quality standards. The provision states that in order to achieve the objectives of the Act there shall be achieved "any more stringent limitation including those necessary to meet water quality standards, treatment standards ... or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter." 33 U.S.C. § 1311(b)(1)(C) (emphasis added). It is plaintiffs' contention that because section 1311(b)(1)(C) incorporates state water quality standards established pursuant to section 1313 and does not explicitly refer to point sources, plaintiffs are entitled to sue under the citizen suit provision of the Act to enforce state water quality standards affected by nonpoint sources.
We recognize that nonpoint sources of pollution constitute a major source of pollution in the nation's waters.
Three methods for deriving effluent limitations are identified in section 1311(b)(1). The first method is "application of the best practicable control technology currently
The title and construction of section 1311(b)(1) lead us to the logical conclusion that the "limitations" set forth in section 1311(b)(1)(C) are "effluent limitations" and, therefore, by definition, applicable only to point sources. See 33 U.S.C. § 1362(11). Having reached this conclusion, we find that plaintiffs do not have a cause of action under the citizen suit provision of the CWA. Therefore, the required sixty-day notice under the Act is not applicable in this case.
We next confront the issue concerning whether plaintiffs may enforce the alleged state water quality standard violations from nonpoint sources pursuant to the APA, 5 U.S.C. §§ 701-706. The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702.
The USFS concedes that APA review is appropriate for some types of final agency action that relate to the CWA. The USFS argues, however, that APA review is not appropriate when citizens attempt to enforce the CWA because Congress impliedly precluded judicial review under the APA when it enacted the citizen suit enforcement provision. The USFS argues that the Supreme Court's decision in Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), supports its contention.
In Sea Clammers, an organization whose members harvest fish and shell fish sued various governmental entities and officials from New York, New Jersey, and the federal government, seeking injunctive and other relief with respect to the dumping of sewage, sludge, and other waste into New York Harbor and the Hudson River. Id. at 4-5, 101 S.Ct. at 2618-19. The plaintiffs failed to give proper notice under section 1365(b)(2) of the CWA and were thereby prevented from bringing an action under that provision. 453 U.S. at 6, 101 S.Ct. at 2619. Plaintiffs thus attempted to proceed under an implied private right of action from the Act, id. at 13, 101 S.Ct. at 2622-23, or under the separate authority of 42 U.S.C. § 1983 to enforce alleged violations of the Act, 453 U.S. at 19, 101 S.Ct. at 2625-26.
The Supreme Court rejected plaintiffs' arguments, holding that an implied right of
We, however, do not interpret Sea Clammers so broadly. First, an implied right of action under a violated statute is not a necessary predicate to a right of action under the APA. Chrysler Corp. v. Brown, 441 U.S. 281, 317, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979); Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir.1981). Second, we interpret Sea Clammers to stand for the proposition that section 1983 is not available to plaintiffs seeking to enforce limitations and standards they could enforce pursuant to the citizen suit provision of the Act. The Court concluded that "[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." 453 U.S. at 20, 101 S.Ct. at 2626. In the instant case, plaintiffs are not attempting to enforce the Act pursuant to the citizen suit provision. As we stated earlier, plaintiffs cannot enforce state water quality standards with respect to nonpoint sources pursuant to that section because Congress did not so provide. Thus, plaintiffs have no exclusive and comprehensive remedy in the citizen suit provision of the Act, as did the plaintiffs in Sea Clammers. Further, Sea Clammers involved the availability of a damages remedy. Id. at 4, 101 S.Ct. at 2618. Our case is distinguishable because plaintiffs are not seeking damages available under the citizen suit provision. Plaintiffs are merely seeking a determination that the timber harvesting violates the Oregon water quality standards.
Finally, in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), the Supreme Court held that "judicial review of final agency action by an aggrieved person will not be cut off unless there is a persuasive reason to believe that such specifically was the purpose of Congress." We conclude that by creating a section of the Act specifically addressing nonpoint sources Congress did not intend to cut off review, but intended to protect the interests of persons aggrieved by nonpoint source violations of state water quality standards.
This decision should not be interpreted to suggest that plaintiffs seeking relief under the CWA may circumvent the notice requirement of the citizen suit provision by resorting to the APA. See Allegheny County Sanitary Auth. v. United States Envtl. Protection Agency, 732 F.2d 1167, 1177 (3d Cir.1984). Where plaintiffs may otherwise proceed under the citizen suit provision, they should not be allowed to bypass the explicit requirements of the Act established by Congress through resort to section 1983, Sea Clammers, 453 U.S. at 14-15, 101 S.Ct. at 2623-24, or the APA, Allegheny County, 732 F.2d at 1177.
Finally, our conclusion is in accord with previous Ninth Circuit opinions. In Northwest Indian, 795 F.2d at 697, this court allowed citizens to sue the USFS for violations of water quality standards. Although jurisdiction was not addressed on appeal or below, the district court stated that plaintiffs alleged violations of both the CWA and the APA. Northwest Indian Cemetery Protective Ass'n v. Peterson, 589 F.Supp. 921, 922 n. 1 (N.D.Cal.1983).
This circuit's decision in City of Las Vegas v. Clark County, 755 F.2d 697 (9th Cir.1985), further supports our conclusion. The USFS implies that language in City of Las Vegas stating that Sea Clammers "precludes suits brought under 28 U.S.C. § 1331 and 42 U.S.C. § 1983," 755 F.2d at 703, necessarily means that suits brought pursuant to the APA and 28 U.S.C. § 1331 also are precluded. However, in City of Las Vegas, the court was interpreting the impact of Sea Clammers with respect to an implied right of action, see 453 U.S. at 15, 101 S.Ct. at 2623-24, and section 1983. Moreover, the court explicitly recognized that the district court may have had jurisdiction under 28 U.S.C. § 1331(a) to review the Environmental Protection Agency's action under the APA. City of Las Vegas, 755 F.2d at 704. We conclude, therefore, that judicial review is available under the APA.
The district court states that even if it were to consider the CWA claim on the merits, it would reject it. The court stated that it had considered the views of the witnesses regarding the impact of the clear cuts on the river and that while it recognized that activities associated with the timber harvest may cause discoloration and turbidity, these charges would be "minor and transient." The court therefore denied plaintiffs' request for injunctive relief.
The Oregon Water Quality Standards are more complicated than plaintiffs allege. For example, although the regulations require that existing high quality waters be maintained and protected, the regulations also set guidelines for nonpoint source activities. In particular, the regulations state that "[l]ogging and forest management activities shall be conducted in accordance with the Oregon Forest Practices Act so as to minimize adverse effects on water quality." Or.Admin.R. 340-41-026(7) (1986). The regulation to which plaintiffs refer concerning the ten percent cumulative increase in natural stream turbidities in the Willamette Basin also provides exceptions for "limited duration activities necessary to ... accommodate essential dredging, construction or other legitimate activities." Or.Admin.R. 340-41-445(2)(c). The regulation further states that the limited duration activities may be authorized provided that "all practicable turbidity control techniques have been applied" and a permit or certification authorized under sections 1341 and 1344 of the CWA or under Or.Admin.R. 141-85-100 et seq. has been issued.
We believe, however, that plaintiffs' allegations and the regulations may raise questions of material fact concerning whether the water quality standards of the Willamette Basin will be violated and whether defendants have obtained the necessary authorization. We therefore remand this issue to the district court for a determination on the merits of whether summary judgment is appropriate on the issue of whether the activities accompanying the timber harvest will violate the applicable regulations.
We do not express any opinion concerning whether or not the matters involved preclude APA review because the matters constitute agency actions committed to agency discretion by law.
Defendant Bugaboo argues that plaintiffs' claim for injunctive relief is barred by the doctrines of laches and unclean hands. Bugaboo's argument concerning laches is meritless. Plaintiffs have timely pursued their claims. With respect to Bugaboo's charge that plaintiffs are guilty of unclean
In conclusion, we find that plaintiffs' NEPA claims are entitled to the levels of administrative review set forth at 36 C.F.R. § 211.18(f). We therefore reverse the district court's holding on this issue and vacate its conclusions concerning the merits of the NEPA claim. The district court should grant appropriate injunctive relief while plaintiffs pursue their administrative remedies. We affirm the order segregating the "Spotted Owl" claim. We remand to the district court for a determination on the merits whether summary judgment is appropriate on the CWA claims brought under the judicial review provisions of the APA.
Plaintiffs' request for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) is denied. Although we rule against the USFS on some of the claims, we cannot conclude that the government's position was not substantially justified. See Sierra Club v. Marsh, 816 F.2d 1376, 1390 (9th Cir.1987). Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART and REMANDED for further consideration in accordance with this opinion.
S.Rep. 596, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3796, 3814, 3815.
H.R.Rep. No. 1002, 99th Cong., 2d Sess. 77 (emphasis added). The use of the term "limits" suggests that Congress believed that the ordinary number of administrative appeals, as set forth in 36 C.F.R. § 211.18(f), applied to timber resales.
In the new amendments Congress also added the following language to section 1251(a) of the Act, which sets forth the goals and policies of Congress. The new language states that:
Pub.L. No. 100-4, § 316(b), 101 Stat. 60 (Feb. 4, 1987).