Barnum Timber Co. v. United States Environmental Protection Agency

GWIN, District Judge.* JAMES S. BYBEE; Opinion Judge Dissent Judge GWIN.

OPINION BYBEE, Judge: Circuit Barnum Timber Plaintiff-Appellant (“Barnum”) owns Company operates rangelands nonindustrial timberlands and California, including in Northern land in appeals the Redwood Creek watershed. It of its action the district court’s dismissal DefendanU-Appellees, the U.S. against Agency Environmental Protection (“EPA”). brought in district Barnum suit court under the Administrative Procedure (“APA”) challenge Act EPA’s decision im- as an to retain Redwood Creek body water under paired (“CWA”). Act The district Clean Water for lack of court dismissed suit granted standing Article III but leave complaint. file amended complaint, but moved amend court for failure district denied motion deficiency en- remedy dismissing judgment tered the case. appeals. num Schiff, Founda- Legal Damien Pacific conclude that Barnum’s amended We CA, tion, Sacramento, appellant. complaint demonstrated that Barnum has Walta, as U.S. a landowner whose Mergen Andrew and Jason challenge Justice, adversely impacted to & values are Environment Department Division, of Redwood Creek Washington, EPA’s retention Natural Resources 303(d) impaired body. Aceording- D.C., the appellee. * Gwin, Ohio, sitting designation. States Honorable James S. United Judge for the Northern District District

ly, judgment we reverse of the district determines that the state’s standards do court and remand the case for further requirements [CWA], not meet the proceedings. EPA promulgates standards for those states.” Id. at 1127.1 In the State of

I. BACKGROUND California, any water bodies included on Plaintiff-Appellant Barnum Timber 303(d) § subject list are also to state (“Barnum”) Company is a California limit- Regs. regulations. 14, § tit. Cal. Code partnership ed owns placed Creek was first on Cali- timber-harvesting operations conducts 303(d) § fornia’s list in 1992. It has re- the Redwood Creek watershed near Eure- mained on the list since that time. In ka, 303(d) CWA, California. Section § California reevaluated its 1313(d), § part 33 U.S.C. of what we list, as it required by statute to do termed “the Act’s ap- carrot-and-stick periodically, 1313(d)(2), § 33 U.S.C. proach attaining acceptable quali- water submitted it to EPA approval, for with ty without regulation direct federal of non- Redwood Creek listed as being impaired point pollution.” sources of Pronsolino v. by both sediment temperature. EPA Nastri, Cir.2002). list, approved the including the Redwood The requires CWA identify each state Creek’s impaired body. water bodies of water within its boundaries that (2007). See 72 Fed.Reg. 12175 (§ 303(d)(1)(A)) impaired by are effluent (§ 303(d)(1)(B)) or thermal pollution and Barnum sued EPA in federal district periodically then submit a list of the im- court, challenging EPA’s decision to “re- paired water bodies to EPA approval. tain Redwood Creek on the Section 303(d)(2), 1313(d)(2). § § CWA 33 U.S.C. impaired list of water arbitrary bodies” as list, Once EPA has approved a state’s 706(2)(A). capricious. § See 5 U.S.C. state and EPA must develop maximum Barnum claimed two bases for injury; pollution levels for impaired water First, that, argued it as a consequence of bodies called “total maximum daily loads” decision, EPA’s it had “suffered extra (TMDL). 1313(d)(1)(C). § 33 U.S.C. Un- satisfy costs to land use trig- restrictions” CWA, der the the state must plan create a gered by the § Redwood Creek’s bring impaired water bodies into second, listing, and it “has seen its compliance with the TMDLs. Id. As we property values decrease.” previously clear, have made states “[t]he required are to set water quality moved for standards dismissal for lack of for all waters within their constitutional boundaries re- district gardless of the sources of pollution granted court that motion without preju- entering the waters. If a state does not dice for leave to amend the complaint. standards, set quality water or if the EPA The district court found that Barnum’s 1. The dissent has mischaracterized the rela- entirely standards appropriate or fails to set tionship between the 1313(b)(1) (autho- states and EPA. § standards. See 33 U.S.C. ("it Dissent at 903 is the state that rizing chooses if quality EPA to set water standards for a implement state), and how to nonpoint (c)(3)-(4) (similar); Pronsolino, source aof TMDL”); ("the majority opinion incor- (noting F.3d at 1129 disapproved that EPA EPA, rectly suggests that the and not Califor- California’s 1992 list and added seventeen nia, nonpoint standards”). controls list), water segments As new 303 out, pointed we have the state ("Congress has the initial definitely requires that the states standards, responsibility to set water but EPA or the pollutants EPA establish TMDLs for all may step in if promulgate lists”). the state 303(d)(1) fails to in waters in here Specifically at issue is whether only conclusory “offered complaint first the con- num’s amended meets injury” and nonspecific claims requirements standing.3 alleged inju- stitutional their to establish that failed way in any are caused “were ries the U.S. Constitution con Article III of approval to the EPA’s connected only “cases” hearing fines federal courts of Redwood Creek.” California’s is a core Standing and “controversies.” court found district Specifically, Article or con component of the III case no connection “identifie[d] had Lujan troversy requirement. Defenders regulation causing its the state between 555, 560, 112 S.Ct. Wildlife, 504 U.S. 303(d) ac- and the EPA’s Section (1992). 2130, 119 351 To establish L.Ed.2d had “offer[ed] and that Barnum tion” standing, must plaintiffs constitutional re- support” its assertion of nothing to elements, consti three which demonstrate values, “other the than property duced ... of Ar tute the “irreducible minimum” allegation itself.” bare 560, at 112 standing, III id. S.Ct. ticle (1) al an amended com- must injury-in-fact plaintiff moved to file 2130: Barnum — by “ac particularized” Thom- and and lege and attached declarations “concrete plaint Able, legally pro M. harm a Herman and James Califor- tual imminent” to as M. 560-61, experts, explained interest, at 112 S.Ct. forestry who tected id. nia (2) 2130; Barnum’s land had value of causal connection—the property the “fairly of the Redwood Creek’s must be traceable” to the conduct because decreased of, listing. Wright, the district court Allen v. 468 U.S. complained § But pro- because “the L.Ed.2d 556 Barnum’s motion 82 denied (3) (1984); not the favorable redressability amendment would cure posed — a action, “likely” the to redress the standing problem,” dismissed decision must be against Bar- v. judgment injury-in-fact, Lujan final Wild and entered Defenders of 560-61, 2130. appeals.2 life, Barnum here S.Ct. num. element in turn. We will each discuss II. STANDING A. Injury-inr-Fact to decisions dismiss

The district court’s analysis our with the first begin Bar- We complaint, initial dismiss Barnum’s injury- standing: constitutional com- element of motion file amended num’s acknowledge injury-in-fact in-fact. judgment dismissing We enter plaint, appeal: as an issue for single ques- on a was raised case all center Barnum’s conceded district court found had Barnum have to chal- tion: Does injury-in-fact, and existence of Barnum’s of Redwood lenge EPA’s retention inju- argued the existence of body? party § water neither impaired as a CWA (internal law, omit- question of we mination de novo.” citations standing is a 2. Because ted)). determination de the district court’s review Rights Cnty. Diego Gun Comm. novo. See Reno, (9th Cir.1996) 98 F.3d claim that we find Barnum’s Because 3. question (stating § is a of law to of Redwood Creek on inclusion diminish, novo); Props, v. Pac. we reviewed de Smith values to list caused its (9th Corp., ground, that Dev. do not reach Barnum's second Cir.2004) ("Whether because the [of ... a denial leave to its values diminished triggers additional California view of the law rests on an inaccurate amend] impose costs on regulations additional re therefore an abuse of discretion and is legal property. its underlying Barnum’s use of deter- quires us to review the appeal. ry-in-fact in their briefs on But connected to EPA’s retention of Redwood necessary is a “standing impaired because element Creek as an body “two jurisdiction,” individually Thomas v. adequate” ways: of federal-court distinct and Mundell, Cir.2009), (1) “the Section has reduced Barnum has met all we must ensure feeding the value Barnum’s constitutional requirements of public’s perception the market’s injury will Understanding help Barnum’s operations that Barnum’s timber are re- remaining well. (2) frame the issues as listing”; stricted “the Sec- 303(d) listing has reduced the value of alleges injury-in-fact Barnum its property by triggering appli- it reduction in the suffered a economic cation of Section 898 of Forest Practice in the Regs. 14, Rules.” See Cal. Code tit. concrete, A specific, Creek watershed. Because we credit argu- Barnum’s first allegation particularized reduction (i.e., ment effect of EPA’s action in the value of owned market) and hold that has estab- plaintiff injury- is sufficient demonstrate inju- lished a causal connection between its stage. Lujan, at pleading in-fact the actions, ry-in-fact and EPA’s we do not 560, 112 504 U.S. at In S.Ct. 2130. this address Barnum’s second causal connec- case, Barnum has submitted two declara argument. tion experts, forestry testifying tions to the Certainly value reductions. the complaint Barnum’s amended asserted Supreme Court has been satisfied less. in “Barnum’s the Redwood In Lucas v. South Carolina Coastal Coun Creek simply watershed has lost value be- cil, 120 cause of of the inclusion Redwood Creek (1992), L.Ed.2d 798 for example, Court § impaired by list as sedi- including found that a request by temperature.” ment and As evidence “damages for the temporary taking of this, of Barnum submitted two declara- plaintiffs] property” [the was sufficient to Registered tions Professional injury-in-fact establish the pleading Foresters, each testifying that Unit- “[t]he stage. Id. at 1014 n. 112 S.Ct. 2886. ed Agen- States Environmental Protection we Thus hold Barnum has itsmet burden cy’s of an listing Redwood Creek as im- injury-in-fact. of demonstrating paired body under the has CWA injury-in-fact, remaining

Unlike two significantly reduced the value standing elements constitutional are dis- num’s timberlands in the Creek Redwood connection, in puted this appeal: (Declaration causal watershed.” of Thomas M. alleged that is whether injuries Barnum’s Herman, attorney, professional an licensed fairly are to traceable EPA’s decision forester, to and Former Director Presi- impaired retain Redwood Creek as an wa- dent of the California Licensed Foresters 303(d); § body ter under CWA and re- Association; Able, Declaration James L. dressability, judgment whether favorable a forestry consultant and licensed profes- against forester.) for Barnum in case would sional Herman’s declaration ex- or resolve ameliorate in- Barnum’s plains public perception is the basis jury-in-fact. listing Barnum’s belief that EPA’s causally connected to the reduction in Bar- B. Causal Connection num’s Redwood Creek watershed argues Barnum public ready its Redwood value: “The to has access Creek is causally listings, including listing reduction (9th Cir.1982). case, occurs, In if Bar this aWhen of Redwood Creek. showing num were successful accurately perceives public —whether was arbi EPA’s of Redwood Creek subject property will not—that or the district court has trary capricious, regula- and onerous subject to additional grant APA to power under the case, the market reaction .... In this injunctive relief declaratory judgment as to deem is such requests, which remedies would Barnum § list- because be devalued being removed result ing.” 303(d) impaired water bodies from the including complaint, Barnum’s amended 706(2)(A); Nw. Envtl. see list. U.S.C. declarations, than suffi- is more the two Admin., 477 Power Ctr. v. Bonneville Def. ele- support the causal connection cient (9th Cir.2007) (holding 679-80 F.3d early Article III at this ment of redressability met plaintiff proceeding. Supreme As the stage of the requirement constitutional noted, necessary the evidence has Court the APA challenge agency action under liti- standing may as the increase support powers equitable “all the inherent because they are not “Since gation progresses: Court are for the of the District available pleading requirements but rather mere complete juris of its exercise proper case, part plaintiffs indispensable diction”) omitted). (citation and alteration standing] element [constitutional each And, previous in the explained for reasons way supported the same must be section, inju removal will resolve the such plaintiff on which the bears other matter from ry allegedly experienced ie., proof, with the manner the burden of to im property’s proximity its required at the degree of evidence Thus, body. if Barnum is paired water Lujan stages litigation.” the of successive the merits at the district successful on Wildlife, 504 U.S. at v. Defenders of court, “merely speculative it is not ... Lucas, (1992); see also 505 112 S.Ct. 2130 Tyler v. injury the will be redressed.” (“Lujan, n. at 1014 112 S.Ct. 2886 U.S. (9th Cir.2000) Cuomo, F.3d 1133 inju- it involved the establishment of since omitted). (internal citation summary stage, the ry judgment in fact at primarily our The court relied on district to adduced required specific facts be Rights Diego County Gun opinion San testimony; challenge sworn had the same Reno, v. Cir. Committee generalized allegation injury in fact to a of 1996), we think that case distin but stage, it would pleading been made at the County, Diego Appell In San guishable. unsuccessful.”). Here, where have been were two associations ant-Plaintiffs plausibly facts alleged specific Barnum has individuals, attempted each of whom three com- explaining causality supported of injuries resulting passage from to claim declarations, more Barnum has petent Act, a federal law the Crime Control the to than met its burden demonstrate Act of the Gun Control amended III causal connection element of Article manufacture, pos transfer or prohibit “the pleading stage. standing at the weapons semiautomatic assault session of of possession large the transfer or Redressability C. feeding devices.” capacity ammunition (internal “requires an Determining redressability Cty., F.3d at Diego removed). plaintiffs pow- marks analysis quotation of whether the court Act’s inju- argued had that the Crime Control or to the claimed right prevent er Gorsuch, weapons had caused bans certain ry.” Gonzales price grandfathered failings of those banned and of were Barnum’s case— increase, injury hindering “where to occur within a [the devices to “thus context, concepts market of causation plaintiffs’] ability to exercise their constitu redressability particularly become buy guns. tional Id. at 1130. rights” subject contradictory, nebulous and generally viability to the of an Referring frequently unprovable, analyses.” Id. claim injury injury-in- economic as a (quoting Dep’t Common Cause v. Ener- fact, in acknowledged we “[e]conomic (D.C.Cir.1983)). gy, 702 F.2d clearly jury is a sufficient basis for stand complaint presents no such de- ing.” But we that in case at Id. noted fects here. hand, plaintiffs’ economic claim First, provided two declarations prong nevertheless the second “fail[ed] challenged govern- as evidence that Lujan test”—causal connection. Id. ment action—EPA’s County Diego plaintiffs The San had Creek as a impaired water failed to the causal demonstrate connection body fact caused its —has element of constitutional on eco- County, to decrease. In San Diego injury grounds they nomic because provid- plaintiffs government contested action that attesting ed no evidence federal affected correspond- entire markets and government’s actually actions did cause ingly alleged price increases to the market (“In California, prices, increase in the id. whole, they merely as a in which hoped to the Roberti-Roos Assault Weapons Con- buyers. contrast, Id. In Barnum’s alle- trol ... Act state also [a law] bans the gation that the prop- economic value manufacture, sale, and distribution of cer- erty has government been affected Thus, tain delineated weapons. assault action on an adjoining waterway leaves any finding that the Crime Control Act open possibility Barnum could isolate had a significant impact on the increase of government the effects of the action on its prices weapons would be tantamount to property. speculation.”), sheer nor could we find that Second, Barnum’s claim to diminished challenged the required law increase depend value does unpredict- not on the prices, the (“Although id. the Crime Con- parties.4 able actions of third The Her- may trol Act tend supply, to restrict noth- and man Able a declarations offer com- ing in Act directs manufacturers or monsense of assessment the market for dealers raise price to of regulated property general, real regulatory re- —in weapons”). strictions on one that affect the The district court concluded that to which put uses a second can be failings plaintiffs’ of the case in Diego will lower property’s the second value.5 4. repeated lenge The against dissent’s concern it is ques- that EPA in federal court. The regulations win, California's that have Bar- caused of tions whether Barnum will or will be alleged injuries num’s misunderstands our to standing able demonstrate at later the sum- opinion. See Dissent at 908-09. Whether mary judgment stage, or be able to sue might against Barnum have a of cause action California in a similar not action are before California does not affect whether Barnum us. EPA, standing just has to sue as whether We note that much of the dissent addresses will on the successful merits its ground against standing, suit Barnum's second which EPA does affect not whether standing pursue supra num has we have to to such a At declined address. See n. 3. suit. present, only arewe concerned with whether amended Barnum's has met The dissent criticizes the declarations as preliminary requirements pursue "lack[ing] to any its chal- sufficient foundation” and action.”). Here, EPA’s agency result of an “a aver- general claim that The dissent’s imposition regula- lead to the of action will may decrease ment that conduct Creek, tory harm is and that restrictions on Redwood not sufficient where value is that speculative,” alleged remains Barnum has its will yet concrete its will de- 905, inconsistent with be affected simply Dissent at Earth, See, a Where consequence. crease in Friends e.g., the cases. Services, challenge EPA’s action Environmental successful Inc. v. Laidlaw 167, 183-84, regulatory those could reduce eliminate S.Ct. restrictions, (2000) plain- redressability (determining causation L.Ed.2d home, “her which are satisfied. [i]s tiffs declaration facility, had a lower val- [defendant’s near allege not think Barnum must We do farther from homes located ue than similar that EPA is the sole source of devalua pollu- and that she believed facility, property. its dissent’s claim for some discharges tant accounted factor, listing by that “the the EPA is one was an testi- discrepancy” “affidavit[ ] many, might affect the value of among mony supporting presented” properly correct, well be Dissent property” may challenged action claim that the plaintiffs point we think the but irrelevant ... economic “directly [her] had affected standing has to whether Barnum chal N.Y., interests”); City Clinton v. lenge alleged EPA’s action. Barnum 141 L.Ed.2d U.S. that at least EPA’s of Redwood (1998) (“The routinely recog- Court its proper has affected the value of injury resulting nizes economic probable ty. It need not eliminate other con alter com- actions that governmental from to establish its tributing .causes satisfy sufficient petitive conditions as Army Corps Advocates U.S. Ocean require- ‘injury-in-fact’ III the Article (9th Engineers, 402 F.3d Cir. any ... logically It ment. ... follows 2005) (finding injury fairly traceable to economic likely who is suffer petitioner defendant, though even “other factors governmental action injury as a result of may “the injury, also cause” the because conditions satisfies changes market link [challenged action] between the (citation test”) part this injury] is not tenuous or ab [the omitted); 3 Rich- see also alterations stract”). Pierce, ard J. Law Treatise Administrative 2002) (“Many § 16.4 at 1125 ed. cases III. CONCLUSION injured by confer on consumers sufficiently Barnum has demon- yield to Because likely action that is agency an causal injury-in-fact, its con- jobs or strated employers whose higher prices, alleged injury and agency an nection between the are wage jeopardized levels Appellee-Defendant, and the redressabili- an likely to have adverse action that revenues, ty claim it successful on or on of its should be employers’ their effect on merits, require- has met the likely any group individual or other III We con- a ments of Article economic effect as to suffer adverse requires "[wjithout regarding rules such declarations any polling the federal described public perceptions complaint. and without described allegations in a support to appraisals.” experience Dissent place seems out of at this dissent’s criticism first included the decla- at 904 n.2. Barnum proceedings stage and would better of the complaint, likely try to in its amended rations reserved for the merits. court, although nothing satisfy to the district deny- EPA-approved elude that the district court erred in of list ing (“CWA”), the motion to amend. We vacate Clean Water Act U.S.C. 1313(d). entry judgment, of § district court’s reverse denial of mo- the district court’s Congress enacted the CWA complaint, amend and remand amending earlier pollution federal water proceedings. for further proven laws that had ineffective. Pronso AND REVERSED REMANDED. Nastri, (9th v. lino Cir.2002). Act, Congress With the 1972 GWIN, Judge, dissenting: District explicitly “recognize[d], preserve[d], and Plaintiff-Appellant Barnum Timber Co. protect[ed] primary responsibilities (“Barnum”) appeals the district dis- court’s reduce, rights to prevent, states complaint against missal of its Defen- pollution, plan eliminate [and] the devel dants-Appellees United Environ- States opment and use ... of land Agency mental Protection P. and Lisa 101(b), § resources. . . .” CWA 33 U.S.C. Jackson, Administrator Environ- 1251(b). § Agency mental (collectively, Protection adopts The Act different to ad- methods “EPA”). The district court dismissed “point “nonpoint dress sources” finding after Barnum lacked sources” of pollution. “Point sources of challenge approval EPA’s pollution those pollutant are where the proposed California’s list of environmental- flows from a conveyance, discrete such as ly challenged water bodies. a pipe or tunnel.” Friends Pinto Creek I Because believe Barnum’s claimed Cir.2007) are, best, injuries conjectural hypo- (internal omitted). quotation Nonpoint thetical; I because believe there is no pollution sources of are nondiscrete causal connection between EPA’s acts and sources, such as runoff from a farmland or speculative injuries claimed timber harvesting. Id. The Act mandates num; I and because nothing believe that federal “effluent limitations” point EPA could do would redress Barnum’s sources, defined as pollu- restrictions of speculative injury, I dissent. As de- discharged point sources, tants from which scribed, any injury that Barnum suf- require application “the practi- best fered —and it is clear nowhere that Bar- cable technology control avail- currently any injury num has suffered from —results 301(b)(1), § able....” CWA 33 U.S.C. California’s acts could be remedi- 1311(b)(1); § 502(11), see CWA reasons, ated EPA. For these I would 1362(11). contrast, U.S.C. In the Act find Barnum does not have “provides no direct mechanism to control challenge EPA’s action. I Accordingly, nonpoint pollution,” source using instead respectfully majority dissent from the regulate the states to nonpoint sources and opinion and affirm ruling encouraging through states the “threat district court. promise grants of federal ... to ac- complish Pronsolino, this task.” I. BACKGROUND (internal omitted). at 1126-27 citations Appellant Barnum is a California limited partnership that owns in the CWA Section 303 is litiga- central to this Redwood 303(a)-(e) Creek in watershed Northwest- tion. CWA Sections allows ern Barnum challenges California. the in- to quality states set water standards all clusion of in Redwood Creek California’s waters within their boundaries. 33 U.S.C. scheme, 1313(a)-(c). In amending the CWA the CWA § Con- Under states, problematic gress recognized of not the compiles a list feder- each state 303(d) list,” waters, government, regulate al nonpoint the “Section would known as S.Rep. approval. pollution. to EPA sources See No. 95- and submits that list 635, 642-43, 370 at 1977 U.S.C.C.A.N. Each must submit its Section state (1977) made (“Congress a clear 303(d) proposed limitations —“to- list with precise point and distinction between (“TMDL”) daily tal maximum load” —to sources, subject which direct years. EPA two C.F.R. every sources, regulation, nonpoint Federal and 130.7(d)(1). approves § EPA then either specifically control of which was reserved disapproves the waters identified in the ”). ... governments State and local pollution the TMDL loads state lists and Thus, as previously this court has ex- states. established CWA plained, upshot of this intricate “[t]he 1313(d)(2). 303(d)(2), § § If U.S.C. leaves scheme the CWA to the approves EPA a state’s Section list states responsibility developing pollution loads included in TMDL plans quality achieve water standards if list, incorporate must them the state statutorily-mandated point source con- process,” “continuing planning into its as suffice, trols will while providing not alone 303(e).1 required under Section 33 U.S.C. funding implementa- federal to aid 1313(d)(2). § Pronsolino, plans.” tion of the state 303(d) requires states Although Section However, in F.3d at discussing 1128-29. pollution loads based on submit lists standing, majority opinion incorrectly point nonpoint both sources of sources EPA, California, suggests that the and not pollution, it state chooses if and is the nonpoint controls water standards. nonpoint implement provi- how to source appeared first Cali- Pronsolino, sion of a TMDL. 291 F.3d at fornia’s EPA-approved Section list simply provides Act finan- 1128-29. The in 1992. In both 2002 im- encourage cial incentives to states to submitted Section lists to EPA that plement regulations greater than state impaired by included as Redwood Creek CWA, those as required under such temperature. both sediment and nonpoint Id. In other source TMDLs. directly impact any EPA does not words, nonpoint loading limitations are And use of Barnum’s in both property. only under state law. Natu- enforced adopted 2002 and California’s EPA, ral Resources Council v. Defense approved recommendations and Califor- (9th Cir.1990) (“The nia’s as impaired of Redwood Creek only Act thus banned dis- [Clean Water] temperature. sediment and charges point from sources. The dis- 16, 2008, charge April from On Barnum filed a pollutants nonpoint Com- plaint the runoff court for the North- example, pesti- sources-for the district California, directly pro- alleging ern District of cides from farmlands-was hibited.”). EPA violated the Administrative Proce- 303(e) revising implementing requires each dures for Section state to have process” ''continuing planning must quality required. which standards as U.S.C. include, alia, effluent inter limitations 1313(e)(1), (3). Each state must submit its compliance stringent "at least as schedules 303(e) approval. plan to the EPA for Act],” required TMDLs as [the those 1313(e)(2). 33 U.S.C. 303(d), proce- required under Section 706(2)(A), Act, by nothing § that the new declarations offered arbi-

dure 5 U.S.C. a approving list of to controvert its earlier conclusion that trarily capriciously attempted, submitted California Barnum much impaired waters “had even 303(d) 303(d) succeeded, of the Clean pursuant to Section less to isolate Section 1313(d). Act, Barnum listing affecting Water 33 U.S.C. from other factors injured it been as a result claims that property.” value of its The court denied approval of EPA of California’s complaint Barnum leave to amend the 303(d) listing because Creek’s Section a final in judgment and entered EPA’s of its listing diminishes the value lands. Barnum appeal favor. filed a notice of 15, this Court on December EPA to dismiss the moved subject jurisdiction, saying matter lack appeal, Barnum On advances two theo- standing that Barnum does not have support that argument ries of its it has bring granted this suit. The district court challenge EPA’s action. Un- dismiss, ruling the Defendants’ motion to theories, Barnum alleges der both those finding that Barnum lacked after 303(d) listing that the will cause the value fairly was not that the trace- First, property of its to decrease. Barnum likely would not be re- able to says approval that EPA’s of Redwood ruling a in Barnum’s favor. dressed 303(d) proposed trig- California’s gered application of California Forest- 2008, 17, On Barnum filed a October ry Regulation § in turn imposes which to file an motion leave amended com- analysis mitigation requirements upon plaint, attaching proposed new com- “any portion waterbody located within In plaint. proposed amended com- or downstream of the proposed op- timber plaint, again alleged Barnum quality eration that is listed as water limit- listing of Redwood Creek will cause a de- 303(d) ed under Section of the Federal property crease the value of its Regs. Act,” Clean Water tit. also submitted declarations from two li- Cal. Code that will reduce Barnum’s professional support censed foresters to theory, its motion for leave to value. Under its second amend.2 The dis- again alleges trict court that “a acceptance concluded broad EPA’s of Califor- factors, spectrum regulatory listing both and nia’s of Redwood Creek on the 303(d) non-regulatory, directly affect the plain- value of list caused a devaluation of property.” tiffs The district court held Barnum’s public because the will any 2. These lack declarations sufficient foun- diminishes the values: "When a list- occurs, example, ing public perceives-whether dation. For Thomas Hermann de- ac- experience forestry management curately with subject property scribes or not-that the will gives description apprais- subject but no regula- of land value additional onerous experience. acknowledges any polling regard- al He then tion.” Without described “[ojther regulations undoubtedly ing public perceptions any and laws re- and without de- property” experience duce the value of property appraisals, Barnum's but scribed gives opinion majority opinion then accepts opinion that the Hermann's undoubtedly considering training, "will reduce of Bar- without what education property.” experience qualifies say num's Hermann reaches this him to what "the Thus, opinion against backdrop perceives.” public the admitted it is Barnum’s regulations impacts provide "competent evidentiary number of state burden to averments, support” jurisdictional value of the Barnum and that for its "[i]t precise may properly unsupport- not feasible to isolate the incremental Court find that these proof loss in value to ed are Barnum's caused affidavits insufficient See, Gaskill, listing.” e.g., the Section Hermann then Thomson v. (1942). justifies opinion his L.Ed.

905 alleges that the value “additional fied because subject to its land as perceive due to the of its decreased regulation.”3 onerous and in the Section of Redwood Creek’s concrete, saying “specific, that a listing, II. ANALYSIS of a particularized allegation and reduction con satisfy the “irreducible In order in the value of owned standing,” plain a minimum of stitutional injury- is sufficient to demonstrate plaintiff (1) it has suffered tiff must establish: pleading stage.” Majority at the in-fact “ legal in fact’—an invasion of ‘injury However, actually rule leads to this (a) which is concrete ly interest protected exactly opposite result. (b) actual or immi particularized, (2) nent, hypothetical;” injury, such as a decrease in conjectural not Economic value, “fairly traceable to the a sufficient basis injury is often defendant, and not challenged standing. action of the See Lucas v. South Carolina Council, 1003, 1014, action of 112 independent the result Coastal court;” (1992); 2886, party not before the 120 L.Ed.2d 798 some third S.Ct. (3) “likely, opposed to Diego County Rights it is Committee v. Gun (9th Cir.1996) Reno, injury 1121, will be merely that the F.3d 1130 speculative, 98 Lujan by a favorable decision.” (citing redressed Central Ariz. Water Conservation 555, (9th 1531, 560- Wildlife, 504 U.S. v. 990 F.2d v. Dist. 1537 Defenders of (1992) Cir.1993)). 2130, Nonetheless, general 119 L.Ed.2d 351 aver S.Ct. omitted). (internal may and citations quotations ment that conduct decrease value is not sufficient where that harm is prong each of the stand- I will examine yet speculative. concrete and remains pos- if Barnum ing analysis to determine bring this suit. requisite standing to sesses Here, harm, theory any under either may that Barnum suffer related to Injury II.A in Fact highly speculative value is depend upon the occurrence of a majority opinion appropriately be- would The events, long including: chain of future analysis standing on the first gins its test, remaining EPA Redwood Creek on California’s Lujan though even factor of tempera- As CWA Section this element is met. concedes sediment, developing a necessary of feder- ture and California “standing is a element and sediment TMDL for Red- jurisdiction!;,]” temperature must al-court Court Creek, developing a possess- wood California it to ensure that Barnum consider timber, finally, TMDL that affects Thomas v. es constitutional (9th Cir.2009). in a Mundell, applying plan manner 572 F.3d If of these eon- satis- that affects Barnum. majority prong finds that this denial The Court reviews a district court’s a district court’s dismiss- 3. This Court reviews amend for abuse of discretion. of leave to standing de Rattlesnake al for lack of novo. Inc., Beecham, United States v. SmithKline EPA, (9th 509 F.3d Coalition (9th Cir.2001). Howev- Cir.2007). reviews the district The Court er, a denial on an inaccu- “whether such rests findings factual relevant court's view the law and is therefore an abuse rate Where is raised for clear error. Id. discretion, requires review the under- us to dismiss, the with a motion to in connection legal de novo." Smith v. lying determination factual alle- accepts as true all material court Corp., Properties Development Pacific Vilsack, gations complaint. Levine v. in the Cir.2004) (internal (9th cita- F.3d Cir.2009). omitted). tions 906 only prong standing are a few ex- test is met. I

tingent events—these also occur, disagree majority then there with the on amples prong not would this of —does standing inquiry. the I will for Barnum’s address both be no reason of Barnum’s theories of harm independent- to fall. ly, since each is based on a distinct causa- alleged by Barnum any injury As tion chain. uncertain, I speculative disagree with majority prong that this of the stand- S0S(d) i. Section Listing Trigger met. Barnum is ing inquiry is unable Forestry Regulations California identify any plausi- conduct that particular “fairly prong Lujan’s The traceable” bly caused a decrease value. standing require test does not explain any unable to Barnum is also de- directly plaintiffs defendant cause in by vaguely in value other than crease jury or that the even defendant’s conduct factors, and even then pointing to market link in be the last the chain of causation. only positing public perceives— what “the 154, 168-69, v. Spear, Bennett 520 U.S. 117 accurately or not.” allega- whether These (1997). S.Ct. 137 L.Ed.2d 281 How satisfy not tions are sufficient the con- ever, injury fairly is not traceable if the stitutional requirements injury from independent “results ac Arkansas, 149, 168, 495 U.S. Whitmore party tion of some third not before the (1990) L.Ed.2d 110 S.Ct. 135 Ky. court.” Simon v. E. Rights Welfare (“Allegations possible future injury do 26, 41-42, Org., satisfy requirements not of Article (1976). L.Ed.2d 450 In determining if the III”); Canyon Hells Preservation Council injury alleged fairly traceable to EPA’s Service, v. U.S. Forest conduct, the Court must consider whether (9th Cir.2010) (holding plaintiffs EPA’s action had some “determinative or “precise injury” lacked where the upon coercive effect” the state of Califor identified); could not be Louisiana Envt’l produced nia that injury. Barnum’s Ben Browner, Action Network v. nett, 169, 117 U.S. S.Ct. 1154. (D.C.Cir.1996) (holding plain- 1382-84 injury tiffs lacked where depend- The district court found that while Cali- events). upon ed a future chain of Forestry Regulation As fornia imposed such, Barnum, I affirm the district requirements injury would court’s on was ruling ground. fairly this not traceable to EPA’s actions be- required

cause it the independent inter- II.B Fairly Traceable a vening party, action of third the state of The district California. court’s conclusion Although disagree I with majority is correct. and find that the district opinion court’s should be affirmed because Barnum’s In Spear, group alle- Bennett v. of ranchers gations prong do meet the first irrigation districts sued the Fish and standing, proceed test for I to the second a Biological Wildlife Service invalidate prong: alleged injury whether the Opinion project is “fair- that found a water threat- ly Here, traceable” to EPA’s conduct. species protected by Endangered ened majority opinion only analyzes 154, 158-59, Species Act. 520 U.S. (1997). theory second of harm —that the inclusion S.Ct. 137 L.Ed.2d 281 Redwood Creek on the Section fairly Court concluded was directly will cause a decrease in to the Fish traceable and Wildlife Service property value—and concludes that Biological Opinion “pow- this because the had agency” importantly, more alone effect on the action decides erful coercive what, any, if statutory presupposed place upon scheme restrictions since the Opinion play operations. a Barnum’s Biological agency’s in decision- central role the action Thus, that, I theory find under its first agencies very action making process, and harm, “fairly Barnum fails to meet the in that the rarely engage choose to conduct prong Lujan any traceable” of the test as likely jeop has concluded was Service EPA, by harm is by caused not but endangered species. Id. at ardize independent action of the state of Cali- The found that the 117 S.Ct. 1154. Court fornia. in Biological Opinion Bennett had “direct at appreciable consequences.” Id. 303(d) Listing Directly ii Section 178, 117 1154. S.Ct. Causing a Decrease Property in Value distinguishable,

The current suit is be- 303(d) listing cause EPA’s does not majority Section opinion analyzes The Barnum’s similarly “powerful harm, have a coercive effect” theory finding second prong this regulatory bodies. As upon California’s standing inquiry is met because described, while the es- previously CWA sufficiently sets forth “causal for the states to iden- procedures tablishes connection” alleged injury-in- between the (decrease value) tify polluted waterbodies and to set fact in property standards, statutory quality scheme action. EPA’s in gives imple- the states broad discretion disagree. majority I The that concludes menting plans. Although their Section allegation ap- Barnum’s bare that EPA’s 303(d) requires the California Water proval of California’s decision to include identify and to impaired Boards to waters 303(d) in Redwood Creek the Section list is loads, daily total maximum Sec- establish sufficient to causation. Although establish 303(d) require not direct or does majority rely heavily upon seems Forestry Department California to en- two declarations submitted Barnum in any act or to enforce Section 898 or to use of its motion for an amended com- support the TMDL. specific accomplish means to plaint, supple- neither of these declarations Moreover, in undercutting allegations appreci- and further ment Barnum’s Rather, way. position, simply repeats Barnum’s Barnum’s able each directly reg- allegation approve most traceable to California’s EPA’s decision 303(d) ulations, enjoys listing not EPA’s. California Section caused a California’s in regulate property broad discretion to Redwood decrease value. Neither statutory proposed as it sees fit within the amended nor the for- scheme established the CWA. EPA’s esters’ affidavits addresses the fatal flaw 303(d) listing allegations. in approval Although of the Section Bar- upon alleges no “determinative or coercive effect” num the Section list enactment, implementation, directly property caused a California’s decrease value, actually enforcement of its Forest Practice Rules. Barnum never asserts a independently plausible allegation chose to condition the decrease of its Forest Practice value is caused the actions of application one regulations listing. But EPA.4 Section opinion subject any scrutiny, majority

4. The does not decrease in value to accepts allegation proof allegation listing instead as num’s that EPA caused the spends pages several values to meet the causation re- majority distinguish prior quirement, majority opinion incorrectly this court’s struggling to Diego County Rights Gun characterizes the as decision San Reno., 98 1121. I dis- F.3d a “regulatory Committee on one restriction[ ] analysis rely and would agree with that to which a second uses affect[s] County; I think that case upon Diego Majority can put.” sufficiently related and should be seen description seemingly This to the leads precedent. natural conclusion that more directly affects the value. How- First, Diego County, to San a similar ever, claim simply this is not true —the factors affects Barnum’s al multitude of listing impose any regula- does not direct best, leged alleges harm. At Any regulations imposed tions. future on factor, listing by among EPA is one nonpoint pollution sources of water in Red- affect many, might the value of its enacted, all, by wood would if at be factors, Many property. such as Califor California, the state of EPA. and not regulations, regula nia state other federal Pronsolino, Any 291 F.3d at 1128-29. tions, forces, market or even natural injury only to Barnum would occur should events, prop affect the value of Barnum’s temperature California establish a or sedi- erty. Specifically, harvesting timber in ment TMDL for Redwood Creek and subject is to numerous state adopt that plan a manner that affects regulations listing. unrelated to the EPA property. injury to Bar- (“California’s forestry E.R. at 9 rules [See num, if any, would be traceable to Califor- comprehensively regulate con [Barnum’s] nia, rather than EPA. irrespective duct of Redwood Creek’s Sec 303(d) listing”) (citing Cal. Pub. Res. Indeed, this circuit previously acknowl- 4581-82; §§ Regs. Code tit. 14 Cal.Code edged that “the CWA leaves to the states 911-29).] §§ Importantly, the factual responsibility developing plans setting quite to that similar quality achieve if standards the stat- Diego County, where both federal and utorily-mandated point source controls will manufacture, state statutes banned the suffice, not providing alone while federal sale, and of certain distribution assault funding implementation to aid in the weapons. 98 F.3d at 1124. As in San plans.” state Id. “California [chooses] Diego County, other factors much more implement both and how it [ the ] if directly affect the value of this implement TMDL. States must TMDLs property. impact weighs This uncertain only they to the extent that seek to avoid strongly against finding that causation is losing grant money; federal there is no met. pertinent statutory provision otherwise re- Second, importantly, quiring implementation plans and more in con- cluding that EPA listing sufficiently providing affects for their enforcement.” Id. at However, (1990) Majority causation. at 898-99. 107 L.Ed.2d 603 alleged injuries ("standing argumentative- Barnum's all stem from Cali- cannot be inferred actions, ly pleadings, fornia’s and not the actions EPA. in the from averments but rather record.”) allegation affirmatively appear Barnum's is con- must on the (internal although quotation nected to that connection is marks and citations omit- EPA — ted). pled proof plausible in the not at all Here there no affirmative —is support and cannot constitutional the record that EPA caused the

FW/PBS, Dallas, City Inc. v. decrease in value. If v. same reason. the value of Barnum’s 11405; also see Wildlife Defenders of Cir.2005) decreases, (10th actually it is not be- conduct, but rather be- cause of EPA’s the EPA to clearly intended (“Congress prop- cause the indicates that the limited, in the non-rulemaking role have erty may subject to California state quality standards of water establishment California, regulations. environmental not (citation states.”) quotation internal EPA, regulations enacts and enforces re- omitted); Meiburg, Club Sierra Thus, nonpoint lated to sources. de- Cir.2002) (“Geor- 1021, 1026-27 F.3d related crease authority respon- primary gia has the 303(d) listing results from the controlling issuing permits and sibility for state, past of future feder- possibility in that It pollution state. nonpoint source al, action. duty to authority and the also has both (the Therefore, segments limited as I find that neither of Bar- compile the list of 303(d) list), of harm TMDLs for num’s theories established and establish list.”). requisite causal connection to show that waterbody on each alleged injury “fairly the traceable” to in magnitude A of this the causal break EPA, I the conduct of would affirm the to the failure of a cause chain would lead judgment of the district court on this context, and it is also action in the tort ground. Lujan, 504 U.S. fatal here. See (“injury must not be the 112 S.Ct. 2130 Redressability II.C independent action of some result of the redressability, I also consider the third court”) (citations not before the party third prong standing analysis. of the Determin- omitted); quotations San Die- and internal ing redressability “requires analysis County, (holding F.3d at 1130 go power right whether the court has the not met where harm is the result prevent injury.” or to claimed the Gon- party third not before the independent Gorsuch, zales v. court). Cir.1982). Again, majority opinion the an- majority opinion seeks to distin- alyzes theory Barnum’s second of harm— Diego County by stating that guish San the inclusion of Redwood Creek on plaintiffs in that case failed to demon- 303(d) listing directly the Section will “they a causal connection because strate cause a decrease in value—and attesting no evidence provided prong concludes that this actually actions did government’s federal majority I disagree test is met. with the ...,” in prices an increase cause inquiry on this as well. here, alleges Barnum

whereas 303(d) Listing Trigger i. Section for 303(d) directly a caused de- Section Forestry Regulations California proper- in value of its crease However, as ex- Barnum does not show a likelihood of ty. Majority at 900. redressability.6 The mere fact that Sec- the current claim fails for the plained, whatever, might provoke any, EPA to federal envi free to select if withhold 5. “California is money, grant is free to ronmental California land-management practices it feels will Marcus, the risk.” Pronsolino v. run reductions called for achieve the load (N.D.Cal.2000), aff'd, F.Supp.2d to moderate or TMDL. California is also free (9th Cir.2002). F.3d 1123 reductions, modify TMDL or even re- them, light implement in of counter- fuse to challenge the redressa- 6. While EPA does steps vailing Although state interests. such bility requirement respect the Section with alleged injury prop- to a Section num’s decrease tion 898 refers —a erty does not itself show by ruling one of its subsections value—could be redressed However, of Redwood Creek from many that the removal favorable to Barnum. likely would redress list argu- of the same reasons that Barnum’s injury. num’s claimed satisfy standing’s ment fails to second prong, I find that Barnum fails to establish incorrectly claims that because Barnum alleged injury that its could be redressed 303(d) listing ap- triggers the Section ruling. a favorable Creek, 898 to Redwood plication EPA’s inclusion of Redwood Creek on the control imple California continues to injury. list is the “but for” cause of its As management mentation of the land prac earlier, im- described CWA leaves the state, tices in that and an against order plementation regulations of clean water EPA would not redress Barnum’s discretion. has im- the states’ California Indeed, injury. yet California has not de system reg- plemented comprehensive veloped any specific TMDL that impacts harvesters, ulations timber which And, they Barnum. even if are developed, “comprehensively regulate con- [Barnum’s] California—not EPA —will decide how and irrespective duct of Redwood Sec- Creek’s Pronsolino, implement if it will them. Thus, listing.” though one noted, F.3d at 1140. As the district court regulation state is tied to the Section root, injuries “at plaintiff alleges arise 303(d) listing, the regulations forestry regulations, from California’s total impose upon costs not any action of the EPA.” [from] if even Redwood Creek is removed from 1130; Diego County, 98 F.3d at see Moreover, the Section list. even if Vilsack, also Levine v. 995 removed from the Sec- (9th Cir.2009) (holding alleged injury not 303(d) list, might Section itself depended redressable where it upon the require cause California to Barnum to con- conduct of a third party); Arakaki v. Lin improve sider measures to the water in the (9th Cir.2007) gle, 477 F.3d Redwood Creek watershed. See Cal. Code (holding injury that an is not redressable Regs, tit.14 898. potential where the benefit of specu suit is Accordingly, I believe that Barnum fails lative); Boating Industry Ass’n v. Mar alleged injury show would be shall, (9th Cir.1979) F.2d regulations redressable because California (“[I]f injury gov stems not from the impose continue to potentially would costs disputed, ernment action but from an inde affecting property values near Redwood source, pendent a federal court pro cannot Creek. plaintiff vide the by directing redress action.”). government to alter its

ii. Listing Directly Causing Property a Decrease in I Accordingly, as find that neither of Value Barnum’s theories of harm establish that majority opinion’s analysis injury alleged of stand- can be redressed ing’s affirm requested, third element concludes that Bar- relief I would also injury, may likely, opposed merely specula this court affirm the that it district any ground tive, supported by court on the record. that the will be redressed Vilsack,

Levine v. Cir. Lujan, favorable decision. 504 U.S. at 2009). party seeking jurisdic As the federal 112 S.Ct. 2130. tion, showing Barnum bears the burden of court of the district on this judgment

ground.

III. CONCLUSION I hold that Barnum does

Because would standing to meet the possess requisite III, of Article I affirm

requirements respect-

the district court’s dismissal majority

fully opinion. dissent from America, STATES of

UNITED

Plaintiff-Appellee, FLYER, Edward Defendant-

Andrew

Appellant.

No. 08-10580. Appeals,

United States Court

Ninth Circuit. April

Argued and Submitted

Filed Feb.

Case Details

Case Name: Barnum Timber Co. v. United States Environmental Protection Agency

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 3, 2011

Citation: 633 F.3d 894

Docket Number: 08-17715

Court Abbreviation: 9th Cir.