The Rattlesnake Coalition v. U.S. Environmental Protection Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE RATTLESNAKE COALITION, 

Plaintiff-Appellant,

v.

U.S. ENVIRONMENTAL PROTECTION No. 05-36097

AGENCY, an agency of the United

States; MICHAEL O. LEAVITT,  D.C. No.

CV-04-00087-DWM

Administrator of the U.S. EPA;

OPINION

CITY OF MISSOULA, a municipality

organized under the laws of

Montana,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

September 25, 2007—Seattle, Washington

Filed December 7, 2007

Before: Betty B. Fletcher, Andrew J. Kleinfeld, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

16087

RATTLESNAKE COALITION v. U.S. EPA 16091

COUNSEL

Craig Murdock, San Francisco, California; Carolyn K. Vinci,

Missoula, Montana, for plaintiff-appellant The Rattlesnake

Coalition.

Marilyn Kuray, Office of General Counsel, Environmental

Protection Agency, Washington, D.C.; Sue Ellen Wooldridge,

Assistant United States Attorney General, Washington, D.C.;

David C. Shilton, Lauren Fischer, Jennifer L. Scheller, Attor-

neys, United States Department of Justice, Environment and

Natural Resources Division, Washington, D.C., for defendant-

appellee United States of America.

Jim Nugent, City Attorney, and Susan A. Firth, Deputy City

Attorney, Missoula, Montana, for defendant-appellee City of

Missoula.

OPINION

GOULD, Circuit Judge:

The Rattlesnake Coalition (“The Coalition”) appeals the

district court’s dismissal for lack of subject matter jurisdiction

and lack of standing of its action against the United States

Environmental Protection Agency (“the EPA”), the Adminis-

trator of the EPA, and the City of Missoula (“Missoula”). The

Coalition brought suit under the National Environmental Pol-

icy Act (“NEPA”), 42 U.S.C. § 4322, seeking injunctive,

declaratory, and other relief related to the preparation of Envi-

ronmental Assessments (“EAs”) and Environmental Impact

Statements (“EISs”) prior to implementation of the Missoula

16092 RATTLESNAKE COALITION v. U.S. EPA

Wastewater Facilities Plan Update (“MWFPU”). The Coali-

tion argues that the district court erred by evaluating its com-

plaint as two separate NEPA claims relating to two

constituent projects of the MWFPU, and thereby concluding

that the MWFPU itself was not a single, major federal action

subject to NEPA regulations. We have jurisdiction under 28

U.S.C. § 1291, and we affirm the district court.

I

In the 1980s Missoula planned and made many improve-

ments to its wastewater treatment and collection system. In

1995, Missoula created the Wastewater Advisory Group, con-

sisting of representatives from city and county departments, to

lead the efforts to update the 1984 wastewater treatment plan.

In 1999, Missoula published the MWFPU, which identified

improvements necessary over a fifty-year period and sug-

gested the implementation of several projects costing more

than $88 million. MWFPU’s goals included developing plans

for wastewater treatment to protect the Clark Fork River and

for serving unsewered areas with a wastewater collection and

treatment system. Federal funds were not used in the creation

of MWFPU.

In 1998, Missoula applied for a grant of $5 million from the

EPA to support completion of the wastewater treatment plant

upgrade (“WTPU”), a constituent project of MWFPU. The

EPA awarded the grant on September 21, 1998, subject to the

EPA’s NEPA review. The NEPA review consisted first of the

EPA’s adoption of an EA prepared by the Montana Depart-

ment of Environmental Quality (“DEQ”) to assess the envi-

ronmental impact of the projects identified in MWFPU. Also,

on June 6, 2000, the EPA signed a Finding of No Significant

Impact (“FONSI”) for MWFPU, which it published in the

Missoulian newspaper on June 18, 2000. The EPA received

no significant comments regarding the FONSI, and on July

31, 2000, the EPA notified Missoula of its final approval of

MWFPU for purposes of the $5 million grant.

RATTLESNAKE COALITION v. U.S. EPA 16093

From November 29, 2000 to September 8, 2003, the EPA

dispensed all of the $5 million grant. Missoula completed the

WTPU in October 2004, expending the entirety of the federal

grant in the completion of the project.

In 2004, the United States Congress appropriated to the

EPA $500,000 earmarked for Missoula’s Rattlesnake Sewer

Project (“RSP”). On May 6, 2004, the EPA regional office

advised Montana DEQ that the EPA would undertake a

NEPA review specific to the RSP. On July 27, 2004, Mis-

soula applied to the EPA for a grant of the money from the

2004 appropriation.

On May 7, 2004, the Coalition filed a complaint against the

EPA and Missoula alleging that the EPA should have pre-

pared an EIS on both the WTPU and the RSP. The Coalition

sought declaratory, injunctive and other relief against the EPA

and Missoula to prevent Missoula from taking any action

related to the planned construction of the RSP until the EPA

complied with NEPA.

Both the EPA and Missoula filed Federal Rule of Civil Pro-

cedure 12(b)(1) motions to dismiss for lack of subject matter

jurisdiction. The district court granted both defendants’

motions, concluding that Missoula’s MWFPU was not a

major federal action triggering NEPA’s application. The dis-

trict court interpreted the Coalition’s complaint as alleging

two separate NEPA violations: one relating to the WTPU

grant and one relating to the application for RSP funding.

The district court concluded that the Coalition did not have

constitutional standing with regard to the $5 million grant to

Missoula in 1998 for the WTPU, concluding that any harm it

suffered was not redressable because the upgrades were com-

plete and the federal funds were expended. As for the 2004

RSP appropriation, the district court ruled that it lacked sub-

ject matter jurisdiction because the EPA had not taken a final

agency action as required to trigger application of NEPA.

16094 RATTLESNAKE COALITION v. U.S. EPA

The district court also concluded that it lacked subject mat-

ter jurisdiction to hear the Coalition’s claims against Mis-

soula. The district court based its dismissal on the fact that

Missoula, as a non-federal actor, was not subject to the

requirements of NEPA. The district court further held that the

Coalition lacked standing to bring the action because Mis-

soula could finance the construction of the RSP solely with

state funds and avoid NEPA requirements altogether.

On September 30, 2005, the district court filed an order dis-

missing the case against both Missoula and the United States

for lack of standing and lack of subject matter jurisdiction.

The Coalition timely appealed.

II

We review de novo a district court’s dismissal for lack of

subject matter jurisdiction. Luong v. Circuit City Stores, Inc.,

368 F.3d 1109, 1111 n.2 (9th Cir. 2004). The district court’s

factual findings relevant to its determination of lack of subject

matter jurisdiction, however, are reviewed for clear error.

United States v. Peninsula Communications, Inc., 287 F.3d

832, 836 (9th Cir. 2002). We also review de novo a district

court’s determination of a party’s standing to bring suit.

Buono v. Norton, 371 F.3d 543, 546 (9th Cir. 2004).

III

Preliminarily, the United States argues that the Coalition

waived its ability to oppose the district court’s rulings by fail-

ing in its opening brief to challenge the district court’s deter-

mination that (1) the Coalition lacked standing because any

injury it suffered from the WTPU is not redressable, and (2)

the district court lacked jurisdiction over disposition of the

claim regarding the RSP because there has been no final

agency action by the EPA. We reject this argument because

the Coalition challenged both of the district court’s findings

in its opening brief.

RATTLESNAKE COALITION v. U.S. EPA 16095

The Federal Rules of Appellate Procedure require that a

brief contain the “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record

on which the appellant relies . . . .” Fed. R. App. P.

28(a)(9)(A). Issues raised in an opening brief but not sup-

ported by argument are considered abandoned. Acosta-Huerta

v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992); Int’l Union of

Bricklayers & Allied Craftsman Local Union No. 20, AFL-

CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.

1985) (“[W]e will not ordinarily consider matters on appeal

that are not specifically and distinctly raised and argued in the

appellant’s opening brief.”).

[1] The Coalition’s opening brief challenges both of the

district court’s rulings in the body of its opening brief. The

Coalition’s discussion of what constitutes a major federal

action under NEPA and its argument that the district court

should have evaluated the MWFPU as a single, major federal

action instead of separately evaluating the WTPU and the

RSP, constitute a challenge to the district court’s dismissal for

lack of standing. The Coalition also contends in its opening

brief that the EPA waived sovereign immunity under the

Administrative Procedure Act (“APA”) so that NEPA pro-

vides jurisdiction for this action.

[2] The Coalition’s opening brief mounts an attack on both

of the district court’s rulings. We therefore reject the waiver

argument presented by the United States and proceed to ana-

lyze the Coalition’s appeal.

IV

We first address the Coalition’s claim that the district court

erred in evaluating the complaint as containing two separate

NEPA claims involving two distinct projects. The Coalition

argues that the district court should have evaluated the

MWFPU to determine if it, and not its constituent projects,

was a single, major federal action. The Coalition contends

16096 RATTLESNAKE COALITION v. U.S. EPA

that had the district court found MWFPU to be a major fed-

eral action, it would have found that the Coalition’s injury

was redressable in the form of adequate environmental review

of the uncompleted portion of the MWFPU in accordance

with NEPA and a stay of further construction of the project

until that review is completed. The Coalition’s argument fails,

however, because there is insufficient federal control over

MWFPU to make it a major federal action under NEPA.

[3] To trigger the application of NEPA, an action must be

“federal.” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R.

§ 1508.18(a) (“Actions include new and continuing activities,

including projects and programs entirely or partly financed,

assisted, conducted, regulated, or approved by federal agen-

cies . . . .”) (emphasis added). While “[t]here are no clear

standards for defining the point at which federal participation

transforms a state or local project into major federal action[,].

. . . ‘[m]arginal’ federal action will not render otherwise local

action federal.” Almond Hill Sch. v. U.S. Dep’t of Agric., 768

F.2d 1030, 1039 (9th Cir. 1985). To determine whether a state

development plan constitutes a major federal action under

NEPA, we look to “the nature of the federal funds used and

the extent of federal involvement.” Sierra Club v. Penfold,

857 F.2d 1307, 1314 (9th Cir. 1988). “While significant fed-

eral funding can turn what would otherwise be a state or local

project into a major federal action, consideration must be

given to a great disparity in the expenditures forecast for the

[local] and federal portions of the entire program.” Ka

Makani ‘O Kohala Ohana Inc. v. Dep’t of Water Supply, 295

F.3d 955, 960 (9th Cir. 2002) (internal quotation marks and

citations omitted). Federal decisionmakers must also retain

“power, authority, or control over” the state project. Id. at

960-61 (“[This authority] must be more than the power to

give nonbinding advice to the nonfederal actor . . . the federal

agency must possess actual power to control the nonfederal

activity”) (quoting Village of Los Ranchos de Albuquerque v.

Barnhart, 906 F.2d 1477, 1482 (10th Cir. 1990) (internal quo-

tation marks and citations omitted)).

RATTLESNAKE COALITION v. U.S. EPA 16097

[4] The creation of MWFPU was not a federal action. No

federal funds were used in MWFPU’s creation, and it is

uncontested that the Wastewater Advisory Group, solely com-

prised of representatives from city and county departments,

led efforts to develop the MWFPU. The creation of MWFPU

was not a major federal action and does not establish subject

matter jurisdiction in this case.

[5] Nor was the implementation of MWFPU a major fed-

eral action. We have found that federal funding amounting to

just 10% of total estimated expenditures does not federalize

a project for purposes of NEPA application. Friends of the

Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975).

Missoula officials estimated that the cost to complete all of

the planned improvements detailed in the MWFPU would

total over $88 million. To date, only $5 million in federal

funds have been awarded by the EPA. That $5 million federal

grant was used in the construction of the WTPU, a project that

cost just under $15 million to complete. While Congress has

also earmarked $500,000 for the RSP, the EPA has yet to

grant those funds to Missoula. As the district court found, the

total federal funds awarded to Missoula comprises just under

6% of the estimated implementation budget. The Coalition

stresses that the 6% calculation misrepresents the financial

involvement of the United States because federal funds will

no doubt be awarded in the future for the purpose of imple-

menting other projects under the MWFPU. However, we can-

not base our evaluation of the federal nature of the MWFPU

on speculation about the future federal funding of its constitu-

ent projects. If Missoula determines to seek federal funding,

it must apply to the EPA for federal funding for each constitu-

ent project of the MWFPU, and we cannot predict Missoula’s

action, or if funds are sought whether the EPA will fund these

future projects, and, if so, to what degree. The small propor-

tion of federal funding currently supporting the projects of the

MWFPU does not federalize the implementation of the entire

MWFPU.

16098 RATTLESNAKE COALITION v. U.S. EPA

[6] Moreover, a local plan does not become a major federal

action subject to NEPA regulations merely upon its approval

by a federal agency. See Friends of the Earth, 518 F.2d at

328-29. The development and improvement of sewage treat-

ment by a municipality is intrinsically a local matter under the

responsibility of local government. NEPA does not apply to

an agency’s approval of a local government’s development

program comprised of “distinct projects with separate func-

tions and independent justifications,” even if some of the con-

stituent projects are entirely funded by the federal

government. See id. The United States must maintain deci-

sionmaking authority over the local plan in order for it to

become a major federal action. See Ka Makani, 295 F.3d at

960-61. The Coalition has neither demonstrated that the

WTPU is inextricably linked to the other projects proposed by

MWFPU nor shown that the United States maintains control

over the implementation of MWFPU.1 Absent a showing of

federal control of MWFPU, the EPA’s approval of MWFPU

and subsequent grant of $5 million to support the WTPU does

not elevate the entire MWFPU to the status of a major federal

action. The district court correctly evaluated the Coalition’s

complaint as containing two distinct NEPA claims.

1

Once challenged, the party asserting subject matter jurisdiction has the

burden of proving its existence. See Trentacosta v. Frontier Pac. Aircraft

Indus., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987); see also 2 James Wm.

Moore et al., Moore’s Federal Practice § 12.30[5] (3d ed. 2007). Where

a plaintiff has “made a sufficient showing that a fact-intensive analysis is

required before a conclusion can be made as to whether the state and fed-

eral activities are so intertwined that the project qualifies as a major fed-

eral action,” this court has remanded the issue to the district court for

further discovery. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1092 (9th

Cir. 2003). Here, however, the plaintiffs have failed to meet that burden.

Unlike the plaintiffs in Laub, who pointed to, among other things, lan-

guage in federal-state agreements that the respective agencies would

develop a single plan for implementing the project, the Coalition has failed

to provide any support for its contention of federal control of MWFPU.

RATTLESNAKE COALITION v. U.S. EPA 16099

V

Viewing the Coalition’s complaint as two distinct NEPA

claims—one involving the WTPU and the other involving the

RSP—we consider whether the district court properly dis-

missed both claims for lack of standing and lack of subject

matter jurisdiction.

A

With regard to the WTPU claim, the district court con-

cluded that the Coalition lacked standing to bring suit in fed-

eral court. We affirm the district court’s dismissal for lack of

standing because any injury suffered by the Coalition due to

the EPA’s failure to follow NEPA procedures could not be

remedied when the complaint was filed.

[7] To establish standing to sue in federal court, a plaintiff

must show that (1) the plaintiff has suffered an injury in fact,

(2) the injury is traceable to the defendant, and (3) a favorable

decision will redress the injury. Bennett v. Spear, 520 U.S.

154, 167 (1997). Fatal to the Coalition’s WTPU claim is the

third prong of the standing analysis: the Coalition cannot

show that there is a genuine likelihood that its injury will be

redressed if it succeeds on the merits. See id. The injuries

allegedly suffered by the Coalition include health problems

and a decrease in the enjoyment and value of their property.

Missoula completed construction of the WTPU in October of

2004 and fully expended the $5 million EPA grant in the pro-

cess. The Coalition’s injuries cannot be redressed now that the

WTPU is complete and the federal funds are expended. See

Gonzales v. Gorsuch, 688 F.2d 1263, 1268 (9th Cir. 1982)

(concluding that once the project was completed and the fed-

eral funds expended, the court could not bring about the water

pollution planning sought by the plaintiff); see also Friends

of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir.

1978) (“Where the activities sought to be enjoined have

already occurred, and the appellate courts cannot undo what

16100 RATTLESNAKE COALITION v. U.S. EPA

has already been done, the action is moot.”). Requiring the

EPA to produce an EA and EIS with regard to the WTPU

would not redress any personal health or property injuries suf-

fered by the Coalition members as a result of the construction.

We hold that the Coalition lacks standing to bring its WTPU

claim in federal court.

B

[8] With regard to the RSP claim, the district court con-

cluded that it lacked subject matter jurisdiction to adjudicate

the Coalition’s claim. The United States must waive its sover-

eign immunity before a federal court may adjudicate a claim

brought against a federal agency. United States v. Mitchell,

445 U.S. 535, 538 (1980). Here, because NEPA does not sub-

ject the EPA to suit, see 42 U.S.C. § 4321 et seq., the Coali-

tion has to establish waiver of immunity under the

Administrative Procedure Act (“APA”). See 5 U.S.C. §§ 702,

704. The APA permits a citizen suit against an agency when

an individual has suffered “a legal wrong because of agency

action” or has been “adversely affected or aggrieved by

agency action within the meaning of a relevant statute.” 5

U.S.C. § 702. When a claim is brought pursuant to the APA,

the agency action must be “final agency action for which

there is no other adequate remedy in court.” 5 U.S.C. § 704.

An agency action is “final” when (1) the agency reaches the

“consummation” of its decisionmaking process and (2) the

action determines the “rights and obligations” of the parties or

is one from which “legal consequences will flow.” Bennett,

520 U.S. at 177-78.

The district court determined that Congress’s appropriation

of $500,000 for the completion of the RSP did not constitute

final agency action. The district court reasoned that, regard-

less of the congressional appropriation and earmark, the

Coalition’s claim would not be ripe until after the EPA

awards the money to Missoula.

RATTLESNAKE COALITION v. U.S. EPA 16101

[9] In its opening brief, the Coalition appeared to challenge

the district court’s dismissal for lack of subject matter juris-

diction by arguing that where Congress has earmarked federal

funds for a particular project via an appropriations act, the

funds should be considered dispersed and qualify as a final

agency action under the APA. This contention is not sup-

ported by administrative law. First, Congress is excluded from

the APA’s definition of an agency. 5 U.S.C. § 701(b)(1)(a)

(“ ‘agency’ means each authority of the Government of the

United States . . . , but does not include the Congress . . . .”).

Therefore, Congress’s appropriation of $500,000 to the EPA

earmarked for the RSP does not constitute a final agency

action under the APA. Second, the congressional appropria-

tion to the EPA of funds for a particular project does not con-

stitute a final agency action by the EPA until the EPA has

reviewed a grant application and decided to disburse the

funds. See Karst Envtl. Educ. & Prot., Inc. v. U.S. Envtl. Prot.

Agency, 403 F. Supp. 2d 74, 81 (D.D.C. 2005) (concluding

that there was no final agency action where HUD had yet to

consider and approve a grant application for disbursal of

appropriated funds because “the federal money is but an

expectancy that has not yet materialized”) (citation and inter-

nal quotation marks omitted), aff’d, No. 06-5059, 2007 U.S.

App. LEXIS 1943 (D.C. Cir. Jan. 30, 2007); Citizens Alert

Regarding the Env’t v. U.S. Envtl. Prot. Agency, 259 F.Supp.

2d 9, 20 (D.D.C. 2003) (“The possibility that federal funding

will be provided in the future is not sufficient to federalize a

state project, even when such funding is likely.”) (quoting

United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563,

1573 (11th Cir. 1994)), aff’d, 102 F. App’x 167 (D.C. Cir.

2004). Even where, as here, Congress has specified the spe-

cific project to which funds should be allocated, the EPA does

not take a final agency action until it completes its review of

the grant application and decides to disburse the appropriated

funds. Before disbursal of the funds, the EPA could decide to

issue an EA and a FONSI or an EIS. Absent final agency

action, there was no jurisdiction in the district court to review

the NEPA claim.

16102 RATTLESNAKE COALITION v. U.S. EPA

C

[10] The Coalition further argues that the EPA’s issuance

of an EA and FONSI with regard to the MWFPU are final

agency actions for purposes of judicial review. We have held

that an agency’s decision not to issue an EIS concludes the

agency’s procedural inquiry into the environmental impact of

a proposed project and therefore constitutes a final agency

action, regardless of whether the agency has decided to fund

the project. Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317,

1319 (9th Cir. 1982). Had the Coalition established standing,

this argument would provide the district court with jurisdic-

tion to hear the WTPU claim, but it does not establish subject

matter jurisdiction with regard to the RSP claim. The EPA has

specifically declined to accept the EA of the MWFPU for the

RSP, and there is no indication in the record that the EPA has

subsequently adopted an EA for the RSP. As a result, the EPA

has not concluded its procedural inquiry into the environmen-

tal impact of the RSP, and the district court properly held that

it lacked subject matter jurisdiction to hear the Coalition’s

RSP claim.

D

[11] Finally, the Coalition argues that dismissal of its RSP

claim for lack of subject matter jurisdiction combined with

dismissal of its WTPU claim for lack of standing means that

in a case involving a major federal action, claimants will be

barred from bringing suit against the EPA for violations of the

procedural requirements of NEPA: On the one hand, if the

claimants sue before the agency has made a final decision to

disburse the funds, the suit will be dismissed for lack of sub-

ject matter jurisdiction. On the other hand, if filed after the

disbursement, the suit will be dismissed because no relief pro-

vided by the court could redress the procedural violation.

While the window for such claims may be narrow, a claimant

can file suit and simultaneously seek a preliminary injunction

as soon as the federal agency makes a final decision to award

RATTLESNAKE COALITION v. U.S. EPA 16103

the grant but before the funds are entirely disbursed by the

federal agency. Here, for example, the EPA notified Missoula

of its decision to award the $5 million grant on September 21,

1998 and informed Missoula of its final approval of the

MWFPU for purposes of the grant on July 31, 2000, but did

not begin to disburse the funds until November 29, 2000 and

did not conclude disbursement until September 8, 2003, pro-

viding ample time for a claimant to file suit under NEPA. The

APA applies to waive sovereign immunity only after final

agency action. 5 U.S.C. § 704. Before final agency action has

occurred, an action against the EPA for procedural violations

of NEPA is premature and a federal court lacks subject matter

jurisdiction to hear the claim.

VI

[12] The district court also dismissed the Coalition’s action

against Missoula for lack of subject matter jurisdiction and

lack of standing, and the Coalition appeals that dismissal.2

“Usually, the federal government is the only proper defendant

in an action to compel compliance with NEPA.” Laub, 342

F.3d at 1091-92 (citation and internal quotation marks omit-

ted). Where state and federal projects are not interrelated and

do not constitute a single federal action under NEPA, nonfed-

eral entities cannot be defendants in a NEPA suit. See id.

Because we have held that the MWFPU is not a major federal

action and the RSP is not a final agency action, Missoula is

not a proper defendant and the district court did not err in dis-

missing the claims against Missoula for lack of subject matter

jurisdiction.

2

Missoula asked the district court to dismiss the Coalition’s claim for

(1) lack of jurisdiction, (2) failure to state a claim, (3) failure to join all

necessary parties, (4) failure to exhaust all administrative remedies, (5)

laches, and (6) lack of standing. The district court, however, dismissed the

Coalition’s claim only for lack of jurisdiction and lack of standing. Mis-

soula did not appeal the district court’s rejection of the alternate grounds

for dismissal. We do not address the alternate grounds here.

16104 RATTLESNAKE COALITION v. U.S. EPA

[13] Likewise, the district court properly dismissed the

claims against Missoula for lack of standing. NEPA requires

federal agencies to prepare an EIS when there are major fed-

eral actions significantly affecting the quality of the human

environment. 42 U.S.C. § 4321 et seq. A local government

can prepare an EA, but the federal agency must adopt the EA

in order for it to qualify as an agency’s environmental review

for purposes of NEPA. Id. Only the federal government, not

the local government, can adopt the EA and EIS that the

Coalition seeks as its relief. Therefore, no order issuing from

the district court in a claim against Missoula could grant the

relief requested by the Coalition: Missoula cannot issue an

EIS on behalf of the EPA.

AFFIRMED.