CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER; SIERRA FOREST LEGACY, Plaintiffs-Appellants, v. STANISLAUS NATIONAL FOREST; UNITED STATES FOREST SERVICE; JASON KUIKEN, Forest Supervisor of Stanislaus National Forest, Defendants-Appellees, ROBERT BRENNAN; SHERRINE BRENNAN; JESSE RIEDEL; JENNY RIEDEL; CLIFTON HODGE; CALIFORNIA FARM BUREAU FEDERATION; CALIFORNIA CATTLEMEN‘S ASSOCIATION; STANISLAUS NATIONAL FOREST GRAZING PERMITEES ASSOCIATION, Intervenor-Defendants-Appellees.
No. 19-16711
United States Court of Appeals for the Ninth Circuit
April 8, 2022
D.C. No. 1:17-cv-00441-LJO-SAB
OPINION
Lawrence J. O‘Neill, District Judge, Presiding
Argued and Submitted October 14, 2020
San Francisco, California
Filed April 8, 2022
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins
SUMMARY*
Environmental Law
The panel affirmed the district court‘s summary judgment order, in which the district court rejected plaintiff environmental groups’ challenges to the government‘s allowance of livestock grazing in three areas of the Stanislaus National Forest in California.
In 1981, the California State Water Resources Control Board signed a Management Agency Agreement (“MAA“) with the U.S. Forest Service to formally recognize it as the management agency on Forest Service lands to implement water management plans.
The panel held that the plaintiffs had Article III standing under the associational standing doctrine. At least one member of еach plaintiff organization averred that they regularly hike in all three Allotments and that the physical impacts of the cattle grazing impair their present and anticipated enjoyment of the area, including its creeks and streams. This showing was sufficient to establish an Article III injury-in-fact.
In alleging a violation of
Plaintiffs also alleged that the government violated
Peter MK Frost (argued), Western Environment Law Center, Eugene, Oregon, for Plaintiffs-Appellants.
Brian C. Toth (argued) and Robert J. Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney General; Environmental Enforcement Section, United States Department of Justice, Washington, D.C.; Stephen A. Vaden, General Counsel; James L. Rosen, Attorney; United States Department of Agriculture, Washington, D.C.; for Defendants-Appellees.
Scott A. Keller (argued), Lehotsky Keller LLP, Washington, D.C.; Kari E. Fisher, California Farm Bureau Federation, Sacramento, California; Caroline Lobdell, Western Resources Legal Center, Portland, Oregon; for Intervenor-Defendants-Appеllees.
OPINION
COLLINS, Circuit Judge:
Plaintiffs Central Sierra Environmental Resource Center (“CSERC“) and Sierra Forest Legacy (“SFL“) appeal the district court‘s summary judgment order rejecting their challenges to the Government‘s allowance of livestock grazing in three areas of the Stanislaus National Forest. Plaintiffs contend that, in allowing such grazing, the Government has violated multiple provisions of state water quality laws made applicable to the Government under the Clean Water Act. We affirm.
Before turning to the specific factual background of this case, we begin with an overview of the relevant water quality laws that frame the parties’ dispute.
A
As rewritten in 1972, the Federal Water Pollution Control Act, popularly known as the “Clean Water Act” (the “Act“),
Specifically, to “encourag[e] and facilitat[e] the development and implementation of areawide waste treatment management plans,” § 208 of the Act requires the States to designate, for specified geographic areas, “an organization capable of developing effective areawide waste treatment management plans for such area.”
Notably, § 313(a) of the Act requires any federal “department, agency, or instrumentality” that has “jurisdiction over any property or facility” or that “engage[s] in any activity resulting, or which may result, in the discharge or runoff of pollutants” to “comply with[] all Federal, State, interstate, and local requirements . . . respecting the control and abatement of water pollution in
The Porter-Cologne Water Quality Control Act (“Porter-Cologne Act“), see
The State Board formulates and adopts statewide water quality control policies that are binding on the regional boards. See
Subject to the approval of the State Board, each regional board must “formulate and adopt water quality control plans” for its respective region, id.
In addition to developing overall basin plans, the regional boards are responsible for regulating the specific actions of relevant dischargers through “permitting, inspection, and enforcement actions.” Monterey Coastkeeper, 2022 WL 669903, at *1. Among the primary mechanisms regional boards use to regulate discharges are (1) the receipt of statutorily required reports concerning discharges and (2) the issuance of discharge permits. See
Specifically, unless the reporting requirement has been waived under § 13269, the Porter-Cologne Act requires each “person discharging waste, or proposing to discharge waste, within any region that could affect the quality of the waters of the state” to file with the appropriate regional board a “report of the discharge, containing the information that may be required by the regional board.” See
Alternatively, the regional boаrd may issue a waiver of the need for WDRs for a “specific discharge or type of discharge.” Id.
B
In 1981, the State Board signed a Management Agency Agreement (“MAA“) with the United States Forest Service (“Forest Service“). The MAA formally recognized the State‘s designation of the Forest Service, pursuant to
In 1999, the California Legislature amended the Porter-Cologne Act to require the State Board to “prepare a detailed program” for “implementing the state‘s nonpoint source management plan.” See
In 2009, the State Board adopted a resolution directing staff “to develop and propose a statewide approach to address activities on national forest system lands.” In response, the Board‘s staff prepared a draft of a formal waiver of WDRs for nonpoint source activities on federal lands, but the Board ultimately rejected the proposal in late 2011. The State Board also considered adopting a “statewide approach to addressing the water quality impacts from livestock grazing” on both public and private lands, but in 2015 it ultimately rejected that concept as well. Instead, the State Board left it to each regional board to “determine which actions” concerning livestock operations, “including regulatory actions and effective non-regulatory efforts for BMP implementation, are best suited to protect water quality.” As the рarties have noted in their post-argument submissions, the relevant regional board is continuing to work with the Forest Service to develop nonpoint source permits covering Forest Service lands.
C
The Stanislaus National Forest is located in California‘s Sierra Nevada Mountains, northwest of Yosemite National Park. The Forest Service has issued permits allowing livestock grazing in the three allotments within the Park that are at issue here—the Bell Meadow, Eagle Meadow, and Herring Creek Allotments (collectively, the “BEH Allotments“). According to a Forest Service report, the “BEH meadows have had a history of grazing and overgrazing going back to the 1890s.” In the 1920s, the number of livestock allowed to graze in the BEH meadows was “6 to 10 times more than present levels,” but stocking levels were reduced in the 1970s.
According to Plaintiff CSERC, the Forest Service‘s allowance of livestock grazing in the BEH Allotments has led to fecal matter runoff that has polluted streams in the area. In particular, CSERC contends that local streams contain levels of fecal coliform bacteria in excess of the relevant water quality objective set by the regional board. The BEH Allotments fall under the jurisdiction of the Central Valley Regional Water Quality Control Board (“Central Valley Regional Board“), whose basin plan (“Basin Plan“) defines the beneficial uses for the subject waterways and the water quality objectives that would protect those beneficial uses. See supra at 8–9. CSERC contends that the designated beneficial uses for several of the relevant waterways include “Water Contact Recreation.” That term refers to “recreational activities,” such as “swimming, wading,” and “fishing,” that “involv[e] body contact with water, where ingestion of water is reasonably possible.” In setting the “water quality objective” that would protect this beneficial use, the Basin Plan states that (1) the “fecal coliform concentration” in the water may not “exceed a geometric mean of 200/100 ml” based on at least “five samples for any 30-day period“; and (2) no more than “ten
Alleging that pollution from livestock grazing was impairing their members’ ability to recreate in the relevant areas of the Stanislaus National Forest, Plaintiffs CSERC and SFL filed this suit in March 2017 against the Stanislaus National Forest, the Forest Service, and the then-Forest Supervisor in her official capacity (together, the “Government“). Because Plaintiffs’ suit sought injunctive relief modifying the grazing arrangements in the BEH Allotments, the district court allowed the holders of the relevant grazing permits, together with several interested organizations (viz., the California Farm Bureau Federation, California Cattlemen‘s Association, and the Stanislaus National Forest Grazing Permittees Association) to intervene as Defendants (collectively, the “Intervenors“).
As the case comes to us, the only claim at issue is the first cause of action in Plaintiffs’ operative Third Amended Complaint, which is brought under the Administrative Procedure Act (“APA“) and which alleges that the
After the parties filed cross-motions for summary judgment, the district court granted summary judgment to the Government and the Intervenors. After entry of final judgment, Plaintiffs timely appealed.
II
We have statutory jurisdiction pursuant to
Although Defendants have not challenged Plaintiffs’ Article III standing, we have “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). We conclude that Plaintiffs
Under that doctrine, an association may establish standing as the representative of its members by showing that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343. The second and third requirements are plainly satisfied here: Plaintiffs’ claims alleging violation of the Porter-Cologne Act are clearly germane to CSERC‘s mission to “identify threats to the environment in the central region of the Sierra Nevada” and to SFL‘s “work[] to protect and rеstore the forests, wildlands, wildlife, and watersheds of the Sierra Nevada.” Nothing about the adjudication of Plaintiffs’ claims for declaratory and injunctive relief would require the participation of individual members. And as to the first requirement, Plaintiffs presented, at summary judgment, declarations from members that sufficiently establish their individual Article III standing.
“[T]o satisfy Article III‘s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citation omitted). At least one member of each organization averred that she regularly hikes in all three Allotments and that the physical impacts of the cattle
Accordingly, Plaintiffs have standing, and we may proceed to the merits.
III
As noted earlier,
A
In reviewing the basic framework of the Porter-Cologne Act, we explained earlier that, absent a waiver of the reporting requirement under
However, the 1981 MAA jointly agreed to by the State Board and the Forest Service specifically addresses those obligations in the following terms:
It is contemplated by this agreement that Forest Service reasonable implementation of those practices and procedures and of this
agreement will constitute compliance with Section 13260, subdivision (a) of Section 13263, and subdivision (b) of Section 13264, Water Code. It is further contemplated that these provisions requiring a report of proposed discharge and issuance of waste discharge requirements for nonpoint source discharges will be waived by the Regional Board pursuant to Section 13269, Water Code, provided that the Forest Service reasonably implements those practices and procedures and the provisions of this agreement.
The referenced “practices and procedures” are the BMPs set forth in the Forest Service 208 Report (or, in the case of a few specific issues, those to be agreed upon by the State Board and the Forest Service), and these BMPs were expressly declared to “constitute sound water quality protection аnd improvement on NFS lands.” See supra at 11. By its plain terms, therefore, the MAA provides that implementation of those BMPs “will constitute compliance” with (1) the reporting requirement of “Section 13260“; (2) the obligation to comply with WDRs in
B
The MAA also expressly states, however, nothing in it “will be construed in any way as limiting the authority of the State Board, or the Regional Boards in carrying out their legal responsibilities for management, or regulation of water quality.” Moreover, we held in Northwest Indian Cemetery Protective Ass‘n v. Peterson, 795 F.2d 688 (9th Cir. 1986), rev‘d on other grounds, 485 U.S. 439 (1988), that the 1981 MAA did not displace the relevant basin plans of the regional boards. Id. at 697. As we explained, the BMPs set forth in the MAA “are merely a means to achieve” the water quality objectives of those plans. Id. Thus, if the State Board or a regional board concluded that the MAA was no longer an adequate substitute for compliance with the ordinary reporting and permitting processes envisioned in
Plaintiffs assert that the MAA was superseded by the State Board‘s adoption of the 2004 NPS Policy, but this argument is refuted by the text of that document. The Policy expressly references, as still operative, the “memoranda of understanding (MOUs) or management agency agreements (MAAs)” that the State Board and regional boards have with other agencies. Moreover, the Policy reaffirms that, in the case of an MAA in which the State Board has “designate[d] another agency as a management agency to take the lead in
To be sure, the Policy further states that neither the State Board nor the regional boards have given up their ultimate authority: neither may “delegate their NPS authorities and responsibilities to another agency,” and they “may not indefinitely defer taking necessary action if another agency is not properly addressing a NPS problem.” But this language confirms that the State Board, or the relevant regional board, must take affirmative action to exercise that authority, and thereby to abrogate, amend, or supersede the terms of an MAA. The 2004 NPS Policy, by itself, does not take that step.
The State Board in recent years has expressed dissatisfaction with the MAA and has considered a variety of alternatives, including a formal detailed waiver of WDRS for nonpoint sourcеs on federal lands and a statewide approach specific to public and private livestock grazing. See supra at 13. The State Board ultimately rejected these options and instead left the matter in the hands of the regional boards. The Central Valley Regional Board has been working with the Forest Service on that issue, but it has
Despite this overwhelming confirmation that the MAA remains operative and continues to waive compliance with the reporting and permitting requirements of
Accordingly, we conclude that Plaintiffs failed to show that the Government violated the reporting and permitting requirements of
IV
Plaintiffs also allege that the Government violated
Plaintiffs contend that we have already held that a basin plan‘s objectives can be enforced against specific projects under § 313, citing our decisions in Northwest Indian Cemetery, 795 F.2d at 697, and Marble Mountain, 914 F.2d at 182-83. But the judicial enforceability of such water quality objectives against specific projects does not appear to have been contested by the defendants in those cases or otherwise presented as an issue for our resolution. Instead, in Northwest Indian Cemetery, the Government argued that the water quality standards in the basin plan had been formally or effectively superseded by the BMPs in the 1981 MAA, and we rejected that argument. As we explained, the BMPs did not displace the water quality standards but were “merely a means to achieve” them, and “[a]dherence to the BMPs does not automatically ensure that the applicable state standards are being met.” 795 F.2d at 697. The Government did not otherwise contest that a court could enjoin a specific project that was alleged to result in a violation of a water quality objective, and we therefore had no occasion to
As our detailed summary of the Porter-Cologne Act makes clear, the water quality objectives established by a regional board in a basin plan provide the relevant standards that must guide the overall package of regulatory actiоns that the board determines “are necessary to achieve the objectives.” See
Once the board translates the water quality objectives into particular prohibitions, WDRs, and waivers imposing restrictions on specific discharges or categories of discharges, the boаrd and the California Attorney General may take appropriate steps to enforce those obligations on individual dischargers. For example, the Porter-Cologne Act allows a regional board to issue cease and desist orders in the event of an actual or threatened discharge in violation of WDRs or basin plan prohibitions. See id.
The parties have not cited, nor have we found, any provision of the Porter-Cologne Act that would make a discharger directly liable for violating a water quality objective contained in a basin plan that is not contained in applicable WDRs, waivers, or prohibitions. Cf. County of Sacramento v. State Water Res. Control Bd., 64 Cal. Rptr. 3d 302, 305-07 (Ct. App. 2007) (upholding inclusion, in WDRs applicable to a county facility, of the numerical water quality objective for a particular bacterium in the basin plan). To the extent that discharges authorized by the board (e.g., through WDRs or waivers) have resulted in a failure to attain water quality objectives, that might lead the board to modify previously issued WDRs or to terminate a waiver. See
For the reasons we have previously explained, the Government has not been shown to have violated the reporting or discharge restrictions of
For the foregoing reasons, we affirm the district court‘s grant of summary judgment to Defendants with respect to Plaintiffs’ claims based on asserted violations of the basis plan‘s water quality objectives.
We affirm the district court‘s denial of summary judgment for Plaintiffs and grant of summary judgment for Defendants.
AFFIRMED.