Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

RECORD Nos. 11-338, 11-347

AND

BRIEFS In The

Supreme Court of the Anited States

®

DOUG DECKER, the Oregon State Forester,

in his official capacity, et al.,

Petitioners,

vV.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al., .

Respondents.

°

GEORGIA-PACIFIC WEST, INC.., et ai.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL

DEFENSE CENTER, et al.,

Respondents.

°

On Writs Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

o

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Sd

STEVEN J. LECHNER

Counsel of Record

JESSICA J. SPUHLER

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

lechner@mountainstateslegal.com

Counsel for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 Library of Congre

Law Library

QUESTION PRESENTED

Congress authorized citizens dissatisfied with the

Environmental Protection Agency’s rules implement-

ing the Clean Water Act’s permitting program to seek

judicial review of those rules in the courts of appeals.

Congress further specified that those rules could not

be challenged in any civil or criminal enforcement

proceeding. Did the Ninth Circuit err when it held

that a citizen may bypass the exclusive method of

seeking judicial review of a permitting rule, and

challenge the validity of the rule in a citizen suit to

enforce the Clean Water Act against regulated par-

ties?

ss

TABLE OF CONTENTS

Page

QUESTION PRESENTED..............ccccescoscseseccscees i

TABLE OF AUTHORITIES ................csccecsesscseeees iv

IDENTITY AND INTEREST OF AMICUS CU-

I ass:chsasiedecetnchesesiathnantadiniabtaaihidiialenesiioniibianasineddcdiabiadidisien 1

STATEMENT OF THE CASE..................cecseeeeeees 3

I. STATUTORY AND REGULATORY BACK-

I itinitiadiiiccndiannansenpueiininientiesuneiainnunes 3

|e, oe GS rere 3

B. EPA’s Silvicultural Rule...................... 6

C. The 1987 Stormwater Amendments.... 7

D. EPA’s Stormwater Regulations ........... 8

II. PROCEDURAL BACKGROUND .............. 9

SUMMARY OF ARGUMENT ..................:.cseeeeeees 14

EE vissiicteiithsbaiiniiniatdieinaiabiiteinabiiniidiicnniuninninaiimendipa 15

I. THE PURPOSE OF 33 U.S.C. § 1369(b)

IS TO ENSURE PROMPT, AUTHORITA-

TIVE REVIEW OF EPA REGULATIONS

IN THE COURTS OF APPEALS ............... 15

II. THE NINTH CIRCUIT LACKED JU-

RISDICTION TO DETERMINE THE

VALIDITY OF EPA’S LONGSTANDING

REGULATIONS IN A CITIZEN SUIT...... 16

A. The Ninth Circuit Ignored Binding

Precedent And Created A Dual Sys-

tem For Challenging The Validity Of

Se eI Ricancncescutsninssiesasensepeonene 16

iil

TABLE OF CONTENTS -— Continued

Page

B. The Ninth Circuit’s Novel And Seri-

ously Flawed Jurisdiction Determina-

tion Frustrates Congress’s Intent In

Passing 33 U.S.C. § 1369(b). ............... 23

EE casisccsiseeaininiccedanceitionghieaisssibicmneinsemninsanaiidiaidaite 29

iv

TABLE OF AUTHORITIES

Page

CASES

Adamo Wrecking Co. v. United States, 434 U.S.

ee iciicisinsincunevinendinsenisaiineninntindensaiatpiimicedians 15, 22

American Mining Cong. v. EPA, 965 F.2d 759

Se IE SITET iitccinendencetadetnitinnebincetictgiaitabinensteimmmentaiéin 19

Arkansas v. Oklahoma, 503 U.S. 91 (1992)................. 3

Child v. United States, 851 F. Supp. 1527 (D.

IED Ga crisisicensescepuenpicutceaniapsiialnietinibipeeiaaniiisinenttiadmtdneemnaentn 2

Coeur Alaska, Inc. v. Southeast Alaska Conser-

vation Council, 557 U.S. 261 (2009)...................0000. 1

Conservation Law Found. v. Hannaford Bros.

Co., 327 F. Supp. 2d 325 (D. Vt. 2004), aff’d,

139 Fed. Appx. 338 (2d Cir. 2005) ..............cccceeceereee 7

Crown Simpson Pulp Co. v. Costle, 445 U.S.

ey UT nisticicicieaesiereceenitteticuinaincisucasieseshitiiipuibudinisiagions 18, 19, 20

Delaware Valley Citizens Council for Clean Air

uv. Davis, 932 F.2d 256 (3d Cir. 1991).....................08 5

E. I. du Pont de Nemours & Co. v. Train, 383

F. Supp. 1244 (W.D. Va. 1974) ..........cccccccsccsccsssssees 17

E. I. du Pont de Nemours & Co. v. Train, 528

ee ee I i niniciiensiecescinendimsanensigniennsiens 17

E. I. du Pont de Nemours & Co. v. Train, 541

eR 17

E. I. du Pont de Nemours & Co. v. Train, 430

es ye Bitieceihtcicisariccentendiminiconmeinummniniemiian passim

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905

Fy Te Ce itienercnedindaniiniunniensininnnapieienniabeainnn 15

Vv

TABLE OF AUTHORITIES — Continued

Page

Environmental Defense Center v. EPA, 344 F.3d

NE Ny STI siiinnicinnicintensenrguihinesipliatiniisinmnnibiitddentiii 8,9

Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380

SERIE i civareseibciincsienininsiigtennniiajaiphaiuiiiaiiimehaimennienndlanihnenie 27

Gen. Constr. Co. v. Castro, 401 F.3d 963 (9th

SEE aEIIT Ee rsncuniiaindeddbersenianiaiunaitianiaiaannsaliiaenepiine 21

Ins. Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982) ............... 25

Laguna Gatuna, Inc. v. Browner, 58 F.3d 564

(10th Cir. 1995), cert. denied, 516 U.S. 1071

FUE evinccesesdecntesiiaiesetipitietalaphaneninindidedibiiiiiinenindibbaabiiaaiipeaantia 2

Lawrence v. Dep't of Interior, 525 F.3d 916 (9th

Se iesisicheitinresnniesdsteidestainiiincnntamanennienininidinsintitumntemapsiinivii 27

Lujan v. Defenders of Wildlife, 504 U.S. 555

SEITE cstcsdipunsictesninencennenianeianeuansaniiadniaeaidemidunainininahionts 25

Lujan v. National Wildlife Federation, 497 U.S.

SITES GRIT icinsiednccninnanenneainnssindainninrntinnigahienieeibieiantee 16

Maier v. EPA, 114 F.3d 1032 (10th Cir. 1997)......19, 35

Mitchell v. Maurer, 293 U.S. 237 (1934).................06: 24

Mollan v. Torrance, 22 U.S. 537 (1824) .................000 24

NEDC v. Brown, 476 F. Supp. 2d 1188 (D. Or.

STITT scaieciiacesiuiaiabiieiianaeieaennaititiaiiaeasaiilasdiemanialdaiitibninerisdinnienil 9

NEDC v. Brown, 617 F.3d 1176 (9th Cir. 2010)........... 10

NEDC v. Brown, 640 F.3d 1063 (9th Cir. 2011) ... passim

NRDC v. EPA, 656 F.2d 768 (D.C. Cir. 1981)............... 21

vi

TABLE OF AUTHORITIES — Continued

Page

NRDC v. EPA, 673 F.2d 400 (D.C. Cir. 1982)................ 20

NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992).....15, 20, 21

National Ass’n of Home Builders v. Defenders

of Wildlife, 551 U.S. 644 (2007) ............cceceeseeeeeeeeeees 2

Nat'l Cotton Council v. EPA, 553 F.3d 927 (6th

I SITTIN nooner ancetnercinnteineseginniiibiatainmantiaiiaiadientbannvisid 19

Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156

SITY STI: III x irri rnin ncistedinlninsebobseaphateidupnaaniapionpaiimasinanss 2

Oregon Natural Resources Council v. U.S.

Forest Service, 834 F.2d 842 (9th Cir. 1987)............. 4

Our Children’s Earth Found. v. EPA, 527 F.3d

III TIIIITEED ionininsicnnianssiipiapdanuneneetiienedimsonmieds 24

Rapanos v. United States, 547 U.S. 715 (2006)........... 2

Riverside Irrigation District v. Andrews, 758

EEE CE TIEETED cccnnsceansennncensncscngnausasenataansecs 2

Sackett v. EPA, __ U.S. __, 182 S. Ct. 1367

STITT tisicsiainsiceonsibndesannbeiieicheiliinadelabpinnieniaenibiingniiadelbciniaiin 1

Shell Oil Co. v. Train, 415 F. Supp. 70 (N.D.

Sree TUITE snssceincieseeieianadeialeidansteelnaiidadaihnbaiaiediginienmaiiaaiehiindapdenepin 15

United States v. Anthony Dell’Aquilla, Enter-

prises and Subsidiaries, 150 F.3d 329 (3d Cir.

SUT ieuticisaiieenianiciainaeninnpeloeindmbanmaieinadieiapunpeainniinniihiindanenned 5

United States v. Stauffer Chem. Co., 684 F.2d

1174 (6th Cir. 1982), aff’d, 464 U.S. 165

ASU RSS BEES Ae a eT a 5

vii

TABLE OF AUTHORITIES — Continued

Page

United States v. Students Challenging Regula-

tory Agency Procedures (SCRAP), 412 U.S.

RR POE recetecasenesscsnsnecniinndtutiatamiedimn 25

Virginia Electric & Power Co. v. Costle, 566

eae SES CG GC, BIG OD sincecssccccncncasccctstsennnenaa 20

STATUTES

Pub. L. No. 100-4, 101 Stat. 7 (1987)..................eeeeeee 7

Clean Water Act, 33 U.S.C. §§ 1251-1387 ......... passim

SD UTE AL. ©] BEI cccencnceccncisccntsconsdintuitciemnaaaaana 3

SD WEEKS. © BEG accceccsscsscisninnnsssioticecmessmaaannae 3

ee ie © BRE cccecenconcnsenstnitiniéienmmmamanaaal 4,16,17

SD WBS. © BR ia ccccccccsicscsesssscctentensistanmnamaaial 3

SOD WEBS. © BR eveccccscssicnniisttitiarenemenmene 4

BD WBA. GEIB cccconccescssscstevincmnnnisnummnnaaenae 4

ie Sb — ener ee passim

SD UG. © TG ID cccccccicsssscsessocsetninnienmannanins 7,13

BB UBC. © RGA) .cceicecccocececccnnisssetsensedmeiaunanian 7

SB WTB. © RIGID cece sccvsccssessonsnssmecnssscsemaniinnane 7

SB UTA. © TIGTEED ccecccscncscsssscstventnasiiobadaaaae 7

SB WEB. © RII occecccnsccnscsastcsniteneseieunanee 7

SB WEES. © BG scccccnscccssesnnncinncetensaumann 7, 8,9

SB WB. § BGI cccacceneccnccscsnsscsensiniieninininta 7, 8,9

BB WBS. © BBG ccccesccscescccacasnsnnesesenintsenniesahnaai 4

Vill

TABLE OF AUTHORITIES — Continued

Page

ET 3

ini ccinsinnssibligcationenentanees 5, 9, 21, 28

EE A ee 5

I EE nde cc eninendinsnanecncccdensevesanane passim

SE Oe SE TD ccccicnncensnnescnesiccssessocsnsonses passim

33 U.S.C. § 1369(b)(1)(F) ......... eee eee e es 18, 19, 21

a csinnenmensnnee 5, 16

AT:

ia. scasnsnsiiniansli 27

RULES

i os sn carnedicninsnennsesnonse 1

Supreme Court Rule 37.3(a)................ccccsccsccscccsccssceces 1

RE 1

REGULATIONS

seit ni cncnnenanindadecnnsenesessues passim

D0 sc ccenncmnnnesonnenacnsocsonnsees 8,13

i i ilar cmnnccenannsecnanene 6,8

OTHER AUTHORITIES

41 Fed. Reg. 6,281-82 (Feb. 12, 1976)........................ 26

41 Fed. Reg. 24,709 (Jun. 18, 1976)................... passim

45 Fed. Reg. 33,290 (May 19, 1980).........ccccccecesseseeseees 6

ix

TABLE OF AUTHORITIES — Continued

Page

55 Fed. Reg. 47,990 (Nov. 16, 1990)..................2044 8,13

64 Fed. Reg. 68,722 (Dec. 8, 1999)................ceceeeeeeeeeees 8

Amicus Curiae Brief of the United States,

NEDC v. Brown, 9th Cir. No. 07-35266 (filed

I, I aa 11, 14, 24

Amicus Curiae Brief of the United States,

NEDC v. Brown, 9th Cir. No. 07-35266, (filed

SOA: Tritt: SUIUTITTITET DP cinicsadionssinspsceciedeelenleceaeienenieitiiematiatesiddieiabiimineas tase 10

Brief for Petitioners, No. 11-338 ...............c.cccccccscsceses 24

Brief for Petitioners, No. 11-347 ....................scesecesees 24

United States’ Amicus Curiae Brief, NEDC ov.

Brown, No. 306-CV-01270 (D. Or., filed Dec.

ie STIs ccccececicecipesieniaapeeiehcipeiastinlenhaceaatinttiaieinatiiaiah ciated 9, 27

1

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

Pursuant to Supreme Court Rule 37.3, Mountain

States Legal Foundation (“MSLF”) respectfully sub-

mits this amicus curiae brief, on behalf of itself and

its members, in support of Petitioners.’

¢

IDENTITY AND INTEREST

OF AMICUS CURIAE

MSLF is a non-profit, public interest legal foun-

dation organized under the laws of the State of Colo-

rado. MSLF is dedicated to bringing before the courts

those issues vital to the defense and preservation of

private property rights, individual liberties, limited

and ethical government, and the free enterprise

system. Since its creation in 1977, MSLF and its

attorneys have been involved in numerous cases

concerning the proper interpretation and administra-

tion of the Clean Water Act (“CWA”), 33 U.S.C.

§§ 1251-1387. E.g., Sackett v. EPA, ___ U.S. ___, 132

S. Ct. 1367 (2012) (amicus curiae); Coeur Alaska, Inc.

' Pursuant to Supreme Court Rule 37.3(a), the parties have

consented to the filing of this amicus curiae brief by filing

blanket consents with this Court. Pursuant to Supreme Court

Rule 37.6, counsel for MSLF affirms that no counsel for a party

authored this brief in whole or in part and that no party, person,

or entity other than MSLF, its members, and counsel made a

monetary contribution specifically for the preparation or sub-

mission of this brief.

2

v. Southeast Alaska Conservation Council, 557 U.S.

261 (2009) (amicus curiae); National Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)

(amicus curiae); Rapanos v. United States, 547 U.S.

715 (2006) (amicus curiae); Laguna Gatuna, Inc. v.

Browner, 58 F.3d 564 (10th Cir. 1995), cert. denied,

516 U.S. 1071 (1996) (represented plaintiff); Child v.

United States, 851 F.Supp. 1527 (D. Utah 1994)

(represented plaintiff); Riverside Irrigation District v.

Andrews, 758 F.2d 508 (10th Cir. 1985) (represented

intervenor); Nat Wildlife Fed’n v. Gorsuch, 693 F.2d

156 (D.C. Cir. 1982) (amicus curiae).

In addition, MSLF has members throughout the

western United States who are actively involved in

the timber industry. The outcome of this case may

have serious consequences for these members. In-

deed, if the Ninth Circuit’s decision is allowed to

stand, persons and private entities, including MSLF’s

members, who own, operate, and/or use forest roads

for transporting timber within the jurisdiction of the

Ninth Circuit will be exposed to the threat of citizen

suits and the associated civil liability. Although the

Ninth Circuit suggested that EPA could issue a gen-

eral permit to cover forest roads over which timber is

transported, EPA is not a party to this case. Thus,

EPA has no obligation to do anything. Meanwhile,

the threat of citizen suits will continue to hang over

those who seek to provide timber to the American

public.

To make matters worse, the Ninth Circuit evis-

cerated the exclusive system established by Congress

3

for challenging the validity of EPA regulations prom-

ulgated under the CWA. Under the Ninth Circuit’s

decision, environmental groups may now challenge

the validity of EPA’s regulations in citizen suits

against private parties in which EPA is not a party.

Accordingly, MSLF respectfully submits this amicus

curiae brief in support of Petitioners.

e

STATEMENT OF THE CASE

I. STATUTORY AND REGULATORY BACK-

GROUND.

A. The Clean Water Act.

Congress passed the CWA for the stated purpose

of “restor[ing] and maintain[ing] the chemical, physi-

cal, and biological integrity of the Nation’s waters.” *

33 U.S.C. § 1251(a). To accomplish this objective,

Congress sought to create a uniform system for

regulating point source discharges.’ See Arkansas v.

Oklahoma, 503 U.S. 91, 110 (1992). For example,

Section 301(a) of the CWA provides that, subject to

certain exceptions, the “discharge of any pollutant by

any person shall be unlawful.” 33 U.S.C. § 1311(a).

One of these exceptions is a point source discharge

authorized by a permit issued pursuant to the

* EPA is charged with administering the CWA. 33 U.S.C.

§ 1251(d).

* A “point source” is generally “any discernible, confined

and discrete conveyance[.}]” 33 U.S.C. § 1362(14).

4

National Pollutant Discharge Elimination System

(“NPDES”) under Section 402, 33 U.S.C. § 1342. The

combined effect of Sections 301(a) and 402 is that it is

unlawful to discharge a pollutant from a “point

source” into waters of the United States without a

NPDES permit.

Although not specifically defined in the CWA,

nonpoint source pollution is generally viewed as

water pollution that arises from many dispersed

activities over large areas, and is not traceable to any

single discrete source. See Oregon Natural Resources

Council v. U.S. Forest Service, 834 F.2d 842, 849 n.9

(9th Cir. 1987) (examples of nonpoint source pollution

include runoff from irrigated agriculture and silvicul-

tural activities). As a result, a NPDES permit is not

required for nonpoint source pollution, which is more

appropriately regulated through other means, such as

best management practices.

In passing the CWA, Congress also included a

special judicial-review provision for challenging EPA

regulations relating to the NPDES program. 33

U.S.C. § 1369(b). This provision provides that the

courts of appeals have jurisdiction to review EPA

“action ... in approving or promulgating any effluent

limitation or other limitation under [33 U.S.C.

§§ 1311, 1312, 1316, or 1345], [and] in issuing or

denying any permit under [33 U.S.C. § 1342].” 33

U.S.C. § 1369(b\(1); E. I. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 136 (1977). This provision fur-

ther provides that an application for judicial review

“shall be made” in a court of appeals “within 120 days

5

from the date” of EPA’s action, or after the 120th day

“if such application is based solely on grounds which

arose” subsequent thereto. 33 U.S.C. § 1369(b)1).

That Congress intended 33 U.S.C. § 1369(b) to pro-

vide the exclusive means of challenging EPA regula-

tions relating to the NPDES program is evident from

the following language: “[A]ction of the Administrator

with respect to which review could have been ob-

tained under [33 U.S.C. § 1369(bX1)] shall not be

subject to judicial review in any civil or criminal

proceeding for enforcement.” 33 U.S.C. § 1369(b)(2).

In addition to establishing an exclusive method

for challenging NPDES-related regulations, Congress

also included a citizen-suit provision in the CWA for

enforcing those regulations. 33 U.S.C. § 1365. Under

the citizen-suit provision, a citizen may commence an

action against any person, including the United

States, “who is alleged to be in violation of ... an

effluent standard or limitation.” 33 U.S.C. § 1365(a 1).

It is axiomatic that the purpose of citizen suits is to

enforce EPA regulations, not to invalidate them.

Delaware Valley Citizens Council for Clean Air v. Davis,

932 F.2d 256, 265 (3d Cir. 1991) (citizen suits under

the Clean Air Act are for the purpose of enforcing EPA

standards).*

* The CWA and the Clean Air Act are read in pari materia.

United States v. Stauffer Chem. Co., 684 F.2d 1174, 1187 (6th

Cir. 1982), aff’d, 464 U.S. 165 (1984); United States v. Anthony

Dell’Aquilla, Enterprises and Subsidiaries, 150 F.3d 329, 338 n.9

(3d Cir. 1998).

6

B. EPA’s Silvicultural Rule.

In 1976, EPA issued its Silvicultural Rule. 41

Fed. Reg. 24,709-24,712 (Jun. 18, 1976). This Rule,

after a minor revision in 1980 (45 Fed. Reg. 33,290

(May 19, 1980)), currently provides, in relevant part:

“Silvicultural point source” means any dis-

cernible, confined and discrete conveyance

related to rock crushing, gravel washing, log

sorting, or log storage facilities which are

operated in connection with silvicuitural ac-

tivities and from which pollutants are dis-

charged into waters of the United States.

The term does not include non-point source

silvicultural activities such as nursery opera-

tions, site preparation, reforestation and

subsequent cultural treatment, thinning,

prescribed burning, pest and fire control,

harvesting operations, surface drainage, or

road construction and maintenance from

which there is natural runoff.

40 C.F.R. § 122.27(b) (emphasis added). Thus, under

the plain language of EPA’s 30-year-old Silvicultural

Rule, all natural runoff from harvesting operations,

surface drainage, and road construction and mainte-

nance is treated as nonpoint source pollution, even if

the runoff is ultimately discharged through a discrete

conveyance. Importantly, no one sought judicial

review of the Silvicultural Rule when it was promul-

gated in 1976 or when it was revised in 1980.

7

C. The 1987 Stormwater Amendments.

In 1987, Congress amended the CWA to specifi-

cally deal with water pollution caused by stormwater.

Pub. L. No. 100-4, 101 Stat. 7 (1987). In so doing,

Congress added Section 402(p) to the CWA, 33 U.S.C.

§ 1342(p), which establishes a two-phase approach to

stormwater discharges. Section 402(p) prohibited EPA

from requiring NPDES permits for stormwater dis-

charges until October 1, 1994, except for five catego-

ries of so-called “Phase I” stormwater discharges. 33

U.S.C. §§ 1342(pX1), (2). As relevant here, one Phase

I category is “discharge associated with industrial

activity.” 33 U.S.C. § 1342(p)(2). Congress mandated

NPDES permits for the Phase I stormwater dis-

charges and directed EPA to promulgate regulations

governing them. 33 U.S.C. §§ 1342(p)(3), (4).

With respect to those stormwater discharges not

included in Phase I, Congress instructed EPA to

study those discharges, determine which ones needed

to be regulated, and establish a comprehensive pro-

gram to regulate these so-called “Phase II” storm-

water discharges. 33 U.S.C. §§ 1342(p)(5) and (6).

Importantly, stormwater discharges not regulated

under either Phase I or Phase II are not subject to

NPDES permitting requirements. See Conservation

Law Found. v. Hannaford Bros. Co., 327 F. Supp. 2d

325, 330-32 (D. Vt. 2004), aff’d, 139 Fed. Appx. 338

(2d Cir. 2005).

8

D. EPA’s Stormwater Regulations.

In 1990, EPA promulgated its Phase I storm-

water regulations. 55 Fed. Reg. 47,990-48,075 (Nov.

16, 1990) (codified in 40 C.F.R. Part 122). Because

Congress did not define the term “discharge associ-

ated with industrial activity,” EPA defined the term to

exclude “discharges from facilities or activities ex-

cluded from the NPDES program under [40 C.F.R.

Part 122}.” 40 C.F.R. § 122.26(b\14). Thus, all activi-

ties that were defined as nonpoint source silvicultural

activities under EPA's Silvicultural Rule (codified at

40 CFR. § 122.27(b)), are excluded from the defi-

nition of stormwater “discharge associated with in-

dustrial activity.” 55 Fed. Reg. at 48,011. EPA also

explained that it would evaluate discharges from

forest roads under Phase II. Jd.

In 1999, EPA adopted its Phase II stormwater

regulations. See 64 Fed. Reg. 68,722-68,851 (Dec. 8,

1999). In so doing, EPA designated two additional

categories of stormwater discharges for regulation

and retained the authority to designate others on a

case-by-case basis. Jd. at 68,724. In Environmental

Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003),

the Ninth Circuit upheld EPA’s Phase II stormwater

regulations in most respects. However, the Ninth

Circuit held that, in promulgating the Phase II reg-

ulations, EPA had not responded adequately to com-

ments asserting that EPA should require NPDES

permits for stormwater discharges from forest roads.

Id. at 860-63. Implicit in this ruling is that discharges

involving runoff from forest roads may be regulated,

9

if at all, under Phase II. See id. at 863 (“[W]e remand

this issue to the EPA, so that it may consider in an

appropriate proceeding Petitioners’ contention that

§ 402(p)(6) [of the CWA] requires EPA to regulate

forest roads.”).

Il. PROCEDURAL BACKGROUND.

On September 5, 2006, Respondent, Northwest

Environmental Defense Center, filed a citizen suit,

under 33 U.S.C. § 1365, against Petitioners, the Ore-

gon State Forester and members of the Oregon Board

of Forestry in their official capacities (collectively “the

State”) and several timber companies.’ Respondent

alleged that the State and the timber companies were

violating the CWA by discharging stormwater from

two forest roads without NPDES permits.

Before the district court, the United States filed

an amicus brief explaining its position that, under

both its Silvicultural Rule and Phase | stormwater

regulations, discharges from forest roads do not

require a NPDES permit. United States’ Amicus Curiae

Brief at 11-31, NEDC v. Brown, No. 306-CV-01270 (D.

Or., filed Dec. 6, 2006). Based, in part, on the United

States’ amicus brief, the district court dismissed

Respondent’s citizen suit for failure to state a claim.

NEDC v. Brown, 476 F. Supp. 2d 1188 (D. Or. 2007).

The Oregon State Forester and members of the Oregon

Board of Forestry are Petitioners in No. 11-338 and the timber

companies are Petitioners in No. 11-347.

10

On appeal, the United States filed another ami-

cus brief, again explaining that under its Silvicultural

Rule and Phase I regulations, discharges from forest

roads did not require a NPDES permit. Amicus

Curiae Brief of the United States at 13-20, NEDC ov.

Brown, 9th Cir. No. 07-35266, (filed Nov. 16, 2007).

The United States also noted that the Ninth Circuit

lacked jurisdiction over Respondent’s citizen suit

because it was a challenge to EPA’s Silvicultural Rule

and Phase I stormwater regulations. Jd. at 12-13. The

United States explained that such a challenge could

be brought only within the 120-day limitation period

in 33 U.S.C. § 1369(b\(1), and that Respondent could

not circumvent review in a court of appeals by styling

its challenge as a citizen suit. Jd.

The Ninth Circuit, however, reversed. NEDC uv.

Brown, 617 F.3d 1176 (9th Cir. 2010). In so doing, the

Ninth Circuit concluded that EPA’s Silvicultural Rule

was invalid because it was susceptible to two “possi-

ble readings|[,]” both of which violated the CWA. Id. at

1184-91. After ruling the Silvicultural Rule was

invalid, the Ninth Circuit ruled that EPA’s Phase I

stormwater regulations were invalid. Jd. at 1194-96.

Petitioners timely sought rehearing. While the

petitions for rehearing were pending, the Ninth

Circuit asked the parties to address whether it had

jurisdiction over NEDC’s citizen suit. In response to

that question, the United States filed another amicus

brief, in which it argued that the judicial-review

provision in 33 U.S.C. § 1369(b) generally bars courts

from reviewing the validity of EPA regulations in a

11

citizen suit. Amicus Curiae Brief of the United States

at 5-7, NEDC v. Brown, 9th Cir. No. 07-35266 (filed

Feb. 10, 2011). The United States then argued that,

because the Ninth Circuit had ruled the Silvicultural

Rule ambiguous, the Ninth Circuit had jurisdiction

over Respondent’s citizen suit. Jd. at 10-11.

On May 17, 2011, the Ninth Circuit denied the

petitions for rehearing, vacated its original opinion,

and issued a superseding opinion in which it again

reversed the judgment of the District Court. NEDC v.

Brown, 640 F.3d 1063 (9th Cir. 2011). The Ninth

Circuit first ruled that it had jurisdiction over Re-

spondent’s citizen suit. Jd. at 1068-69. In so ruling,

the Ninth Circuit concluded that Respondent could

not have sought review of the Silviculture Rule when

it was promulgated because no one could have known

how EPA interpreted the Rule before the United

States filed its amicus curiae brief in this case. /d.

Thus, the Ninth Circuit determined that the case fell

“within the exception in [33 U.S.C. § 1369(b)\1)] for

suits based on grounds arising after the 120-day

filing window.” Jd. at 1069.

The Ninth Circuit then reviewed the history of

the Silvicultural Rule. Jd. at 1073-80. In direct con-

travention to its earlier conclusion that no one could

have known how EPA interpreted its Silviculture

Rule, the Ninth Circuit recognized that EPA has

always interpreted its Silvicultural Rule to exclude

natural runoff from forest roads from the NPDES

permitting system even when that water is collected

and channeled in discrete conveyances. Jd. at 1073-80.

12

The Ninth Circuit also ruled that EPA’s interpreta-

tion was reasonable. Jd. at 1080 ({T]Jhere are two

possible readings of the Silvicultural Rule. The first

reading reflects the intent of EPA in adopting the

Rule.” (emphasis added)). Despite this ruling, the

Ninth Circuit held that EPA’s interpretation of its

Silvicuture Rule was “invalid.” Jd.

Although the second reading of the Silvicultural

Rule did “not reflect the intent of EPA[,]” the Ninth

Circuit ruled that this reading would be consistent

with the CWA:

The second reading does not reflect the in-

tent of EPA, but would allow us to construe

the Rule to be consistent with the statute.

Under this reading, the Rule exempts natu-

ral runoff from silvicultural activities such as

those listed, but only as long as the “natural

runoff” remains natural. That is, the exemp-

tion ceases to exist as soon as the natural

runoff is channeled and controlled in some

systematic way through a “discernible, con-

fined and discrete conveyance” and dis-

charged into the waters of the United States.

Id. Yet, the Ninth Circuit held that, “[uJnder either

reading, ... the Silvicultural Rule does not exempt

from the definition of point source discharge ...

stormwater runoff from logging roads that is collected

and channeled in a system of ditches, culverts, and

conduits before being discharged into streams and

rivers. Id.

13

The Ninth Circuit next addressed whether

NPDES permits are required for stormwater dis-

charges from forest roads under EPA’s Phase I storm-

water regulations. Jd. at 1082-85. The Ninth Circuit

recognized that the plain language of these regula-

tions define “‘discharges associated with industrial

activity’” not to include discharges that are excluded

from the NPDES program under the Silvicultural

Rule. Jd. at 1083 (quoting 40 C.F.R. § 122.26(b)(14)).

In fact, the Ninth Circuit explained that “[t]he pre-

amble to the Phase I regulations makes clear EPA’s

intent to exempt nonpoint sources as defined in the

Silvicultural Rule from the permitting program man-

dated by § 402(p).” Id.; see also 55 Fed. Reg. at 48,011.

Despite the plain language of the regulations and

EPA’s clear intent, the Ninth Circuit ruled that EPA’s

Phase I stormwater regulations are invalid. Jd. at

1(-83-85.

Finally, the Ninth Circuit tried to downplay the

disastrous effect of its decision:

Until now, EPA has acted on the assumption

that NPDES permits are not required for

discharges of pollutants from ditches, cul-

verts, and channels that collect stormwater

runoff from logging roads. EPA has therefore

not had occasion to establish a permitting

process for such discharges. But we are con-

fident, given the closely analogous NPDES

permitting process for stormwater runoff

from other kinds of roads, that EPA will be

14

able to do so effectively and relatively expe-

ditiously.

Id. at 1087. The Ninth Circuit’s words were cold

comfort because EPA is not a party. Thus, EPA has no

obligation to do anything. Amicus Curiae Brief of the

United States at 3 n.1, NEDC v. Brown, 9th Cir. No.

07-35266 (filed Feb. 10, 2011) (“[A]ny relief afforded

to [Respondent] in this case must be limited to the

parties and applicable only to the specified discharges

before the Court, and cannot directly bind EPA, a

non-party.”). Thus, fears regarding the disastrous

effect of the Ninth Circuit’s decision remain.

¢

SUMMARY OF ARGUMENT

This Court should vacate and remand the Ninth

Circuit’s decision with instructions to dismiss for lack

of jurisdiction. The Ninth Circuit’s decision abrogates

Congress’s carefully crafted, bifurcated system that

vests exclusive jurisdiction over challenges to EPA's

regulation in the courts of appeals. Under the Ninth

Circuit’s novel and seriously flawed reasoning, a

district court may confer jurisdiction on itself over a

citizen suit by simply deeming a longstanding EPA

regulation ambiguous. Needless to say, this frustrates

Congress’s intent in passing 33 U.S.C. § 1369(b).

More dangerously, the Ninth Circuit’s ruling will open

the courthouse doors to environmental groups who

seek to challenge longstanding EPA regulations under

the guise of citizen suits in which EPA is not a party.

°

15

ARGUMENT

I. THE PURPOSE OF 33 U.S.C. § 1369(b) IS

TO ENSURE PROMPT, AUTHORITATIVE

REVIEW OF EPA REGULATIONS IN THE

COURTS OF APPEALS.

The judicial-review mechanism in 33 U.S.C.

§ 1369(b) authorizes interested persons and regulated

industries to obtain immediate review in the courts of

appeals of certain EPA actions, including the promul-

gation of NPDES regulations, without waiting for the

regulations to be applied in a concrete factual set-

ting.” NRDC v. EPA, 966 F.2d 1292, 1296-97 (9th Cir.

1992) see also Shell Oil Co. v. Train, 415 F. Supp. 70,

76 (N.D. Cal. 1976) (Congress’s intent in passing 33

U.S.C. § 1369(b) was to insure prompt, high-level

* Importantly, prompt, authoritative review in the courts of

appeals benefits regulated industries, the public, and EPA by

providing immediate clarity to all concerned. See Adamo Wreck-

ing Co. v. United States, 434 U.S. 275, 284 (1978) (By vesting

exclusive jurisdiction in the courts of appeals to review EPA’s

emissions standards under the Clean Air Act, Congress ensured

that the “standard[s}] would be uniformly applied and inter-

preted and that the circumstances of [their] adoption would be

quickly reviewed by a single court intimately familiar with

administrative procedures.”); Eagle-Picher Indus., Inc. v. EPA,

759 F.2d 905, 911 (D.C. Cir. 1985) (Statutory time limits on

petitions for review of agency action are jurisdictional in nature.

These limitations serve the important purpose of imparting

finality into the administrative process, thereby conserving

administrative resources. Furthermore, timeliness requirements

reflect a deliberate congressional choice to impose statutory

finality on agency orders, a choice we may not second-guess.”

(internal quotations omitted)).

16

judicial review of the EPA’s regulations). Thus, this

judicial-review mechanism tends to alleviate pruden-

tial ripeness concerns that might otherwise bar

judicial review of facial challenges to non-applied

regulations. See Lujan v. National Wildlife Federa-

tion, 497 U.S. 871, 891-94 (1990) (a facial challenge to

a non-applied agency regulation is “ordinarily” not

ripe for review). Congress expressed the importance of

immediate review by requiring that review be sought

within 120 days of issuance of the regulations, unless

the challenge “is based solely on grounds which arose

after such 120th day.” 33 U.S.C. § 1369(b\(1). This

provision is the only avenue by which a party may

challenge the validity of EPA’s NPDES regulations.

Collateral attacks on EPA regulations are explicitly

barred by 33 U.S.C. § 1369(b)(2), which provides:

“Action of the Administrator with respect to which

review could have been obtained under [1369(b \1)]

shall not be subject to judicial review in any civil or

criminal proceeding for enforcement.”

Il. THE NINTH CIRCUIT LACKED JURIS-

DICTION TO DETERMINE THE VALIDITY

OF EPA’S LONGSTANDING REGULA-

TIONS INA CITIZEN SUIT.

A. The Ninth Circuit Ignored Binding

Precedent And Created A Dual System

For Challenging the Validity Of EPA

Regulations.

In E. I. du Pont, this Court addressed regulations

issued by EPA under 33 U.S.C. § 1311, which set

17

effluent limitations for the discharge of various pol-

lutants from existing plants. 430 U.S. at 115. Numer-

ous companies sought review of the regulations

concurrently in both the Fourth Circuit and the

Western District of Virginia. The district court dis-

missed the companies’ challenge to the regulations

because, under 33 U.S.C. § 1369(b)\(1), exclusive

jurisdiction was in the Fourth Circuit. E. J. du Pont

de Nemours & Co. v. Train, 383 F. Supp. 1244, 1256

(W.D. Va. 1974). On appeal, the Fourth Circuit af-

firmed the district court’s dismissal. E. J. du Pont de

Nemours & Co. v. Train, 528 F.2d 1136, 1139-42 (4th

Cir. 1975). As to the companies’ original petition for

review, the Fourth Circuit ruled that EPA had au-

thority to promulgate regulations establishing efflu-

ent limitations for existing plants under 33 U.S.C.

§ 1311. E. I. du Pont De Nemours & Co. v. Train, 541

F.2d 1018 (4th Cir. 1976).

After granting the companies’ petitions for writ of

certiorari, this Court upheld EPA’s asserted authority.

E. I. du Pont, 430 U.S. at 126-34. As to the jurisdic-

tional issue, this Court rejected the companies’ con-

tention that the judicial-review provision in 33 U.S.C.

§ 1369(b)(1) applied only to EPA’s actions in issuing

and denying individual permits:

[The companies’] construction would produce

the truly perverse situation in which the

court of appeals would review numerous in-

dividual actions issuing or denying permits

pursuant to [33 U.S.C. § 1342] but would

have no power of direct review of the basic

18

regulations governing those individual ac-

tions.

Id. at 136.

Later, in Crown Simpson Pulp Co. v. Costle, 445

U.S. 193, 195 (1980) (per curiam) this Court empha-

sized that 33 U.S.C. §1369(b) should be read to

effectuate the intent of Congress in ensuring prompt,

authoritative resolution of challenges to EPA’s actions.

At issue was EPA’s veto of a NPDES permit issued by

California, which had been delegated authority by

EPA to administer the NPDES program. 7/d. at 193-

94. Because EPA itself had not denied the permit, the

Ninth Circuit ruled that it lacked jurisdiction under

33 U.S.C. § 1369(b)(1XF), which provides for review

in the courts of appeals of EPA’s actions “in issuing or

denying any permit [under 33 U.S.C. § 1342].” Id. at

195-96. Recognizing that 33 U.S.C. § 1369(bxX1\F)

would vest the courts of appeals with jurisdiction to

review EPA’s permit decisions in States that had not

been delegated authority to administer NPDES

program, this Court reversed:

[We] hold that the Court of Appeals had ju-

risdiction over this action under [33 U.S.C.

§ 1369(b)\(1)(F)]. When EPA, as here, objects

to effluent limitations contained in a state-

issued permit, the precise effect of its action

is to “denly]” a permit within the meaning of

[33 U.S.C. § 1369(b)(1)(F)]. Under the con-

trary construction of the Court of Appeals,

denials of NPDES permits would be review-

able at different levels of the federal-court

19

system depending on the fortuitous circum-

stance of whether the State in which the case

arose was or was not authorized to issue

permits.... Absent a far clearer expression

of congressional intent, we are unwilling to

read the Act as creating such a seemingly ir-

rational bifurcated system.

Id. at 196-97 (footnotes omitted).

As E. I. du Pont and Crown Simpson demon-

strate, the purpose of 33 U.S.C. § 1369(b) is to ensure

prompt, authoritative review of EPA’s actions, including

NPDES-related regulations, in the courts of appeals.

Moreover, 33 U.S.C. § 1369{b) should be given a prac-

ticable interpretation so as to avoid creating an

“irrational” dual system.

Several courts of appeals, including the Ninth

Circuit, have recognized that 33 U.S.C. § 1369(b)

confers exclusive jurisdiction on the courts of appeals

to review the validity of NPDES-related regulations.

E.g., Nat’l Cotton Council v. EPA, 553 F.3d 927, 933

(6th Cir. 2009) (“The Final Rule before us today ...

regulates the [NPDES] permitting procedures, and

we therefore conclude that jurisdiction is proper

under § 1369(b\1XF).”); Maier v. EPA, 114 F.3d 1032,

1037-38 (10th Cir. 1997) (The courts of appeals have

exclusive jurisdiction over challenges to EPA’s denial

of petitions for rulemaking affecting the NPDES

program); American Mining Cong. v. EPA, 965 F.2d

759, 763 (9th Cir. 1992) (“The jurisdictional grant of

[33 U.S.C. § 1369(b)(1XF)] authorizes the courts of

appeals “to review the regulations governing the

20

issuance of permits under section 402, 33 U.S.C.

§ 1342, as well as the issuance or denial of a particu-

lar permit.”).

For example, in NRDC v. EPA, 673 F.2d 400 (D.C.

Cir. 1982) the D.C. Circuit, relying on this Court’s

decisions in E. J. du Pont and Crown Simpson, ruled

that the courts of appeals have jurisdiction under 33

U.S.C. § 1369(b) to review non-technical, NPDES-

related regulations. The regulations were — like EPA’s

Silvicultural Rule and Phase I stormwater regula-

tions — based upon general, policy-based choices made

by EPA. Id. at 405. Industry groups argued that non-

technical, NPDES-related regulations may be chal-

lenged only in the district courts. Jd. at 402-03. In

rejecting this argument, the D.C. Circuit noted that

“the case for first-instance judicial review in a court

of appeals is stronger for broad, policy-oriented rules

than for specific, technology-based rules.” Id. The

D.C. Circuit also explained that “[nJational uni-

formity, an important goal in dealing with broad

regulations, is best served by initia! review in a court

of appeals.” Jd. at 405 n.15 (citing Virginia Electric

& Power Co. v. Costle, 566 F.2d 446, 451 (4th Cir.

1977)). Finally, the D.C. Circuit — like this Court in

E. I. du Pont ~ noted the anomaly that would be

created if the courts of appeals could review only

EPA’s actions in issuing or denying NPDES permits

but not the regulations governing those decisions. Id.

at 405-06.

More recently, in NRDC v. EPA an environmental

group challenged EPA’s Phase I stormwater regula-

tions by filing a petition for review with the Ninth

21

Circuit. 966 F.2d 1296-97. Before addressing the

merits, the Ninth Circuit noted that it had jurisdic-

tion, under 33 U.S.C. § 1369(b), to review the regula-

tions. Jd. at 1296-97 (“33 U.S.C. § 1369(b)(1)(F) allows

the court to review the issuance or denial of a [NPDES}

permit.... The court also has the power to review

rules that regulate the underlying permit proce-

dures.” (citing NRDC v. EPA, 656 F.2d 768, 775 (D.C.

Cir. 1981))).

Here, Respondent also challenged EPA’s Phase I

stormwater regulations, specifically the regulation

that incorporated the Silvicultural Rule. See NEDC,

640 F.3d at 1083. However, Respondent did not utilize

the judicial-review mechanism in 33 U.S.C. § 1369(b),

Instead, Respondent filed a citizen suit in district

court, pursuant to 33 U.S.C. § 1365. Thus, the Ninth

Circuit should have followed its earlier decision in

NRDC v. EPA and ruled that it lacked jurisdiction to

entertain Respondent’s citizen suit. See Gen. Constr.

Co. v. Castro, 401 F.3d 963, 975 (9th Cir. 2005) (“[W]Je

are bound by decisions of prior panels unless an en

banc decision, Supreme Court decision or subsequent

legislation undermines those decisions.”).

In this case, the Ninth Circuit ignored not only

its own precedent, but the previous decisions of this

Court and created a dual system that allows envi-

ronmental groups to challenge EPA regulations in

either the courts of appeals or the district courts. To

say that this could result in inconsistent decisions

throughout the Nation is an understatement.

22

To make matters worse, an environmental group

can avoid EPA’s involvement, as Respondent did here,

by naming only the alleged discharger in a citizen

suit and styling its challenge to the regulations in

terms of an attack on EPA’s interpretation thereof.

Without EPA in the case to defend its regulations, the

environmental group has necessarily increased it

odds of prevailing. Morevver, the reviewing court is

placed in the unusual position of judging the validity

of EPA’s regulations without the benefit of the EPA’s

administrative record for the rulemaking.

This irrational result underscores Congress’s wis-

dom in bifurcating challenges to the validity of regu-

lations from enforcement actions, like citizen suits. As

this Court has recognized, the “narrow inquiry” in

enforcement actions “is not whether [EPA} has com-

plied with appropriate procedures in promulgating

the regulation in question, or whether the particular

regulation is arbitrary, capricious, or supported by

the administrative record. Nor is the court to pursue

any of the other familiar inquiries which arise in the

course of an administrative review proceeding.”

Adamo Wrecking Co., 434 U.S. at 285. Instead, the

inquiry is simply whether the defendant violated the

regulation. Jd.

Accordingly, this Court should vacate the Ninth

Circuit’s decision and remand with instructions to

dismiss for lack of jurisdiction, both to correct the

irrational dual system created by the Ninth Circuit

for challenging EPA regulations and to undo what

23

amounts to an improper invalidation of EPA's Silvi-

cultural Rule and Phase I stormwater regulations.

B. The Ninth Circuit’s Novel And Seriously

Flawed Jurisdiction Determination Frus-

trates Congress’s Intent In Passing 33

U.S.C. § 1369(b).

The Ninth Circuit concluded that this case

was properly brought as a citizen suit, even though it

recognized that courts of appeals have exclusive ju-

risdiction over challenges to the validity of EPA

regulations. NEDC, 640 F.3d at 1068. The Ninth

Circuit reached this remarkable conclusion by first

finding that the Silvicultural Rule is ambiguous be-

cause the Rule is “susceptible to two different read-

ings.” Jd. at 1068. Casting a blind eye towards EPA’s

longstanding and well-publicized interpretation, the

Ninth Circuit stated that “there was no way for the

public to know which reading of the Silvicultural

Rule” EPA would adopt until the United States filed

its brief in this case. Jd. at 1068-69. Finally, the Ninth

Circuit determined that Respondent’s citizen suit was

proper because the case fell “within the exception in

(33 U.S.C. § 1369(b)X1)] for suits based on grounds

arising after the 120-day filing window.”’ NEDC, 640

‘ This determination was evidently influenced by the

United States’ amicus curiae brief responding to the Ninth

Circuit’s jurisdictional questions. NEDC, 640 F.3d at 1068. In

that brief, the United States simply acquiesced in the Ninth

Circuit’s ruling that the Silvicultural Rule was ambiguous and

(Continued on following page)

24

F.3d at 1069. The Ninth Circuit’s novel and seriously

flawed reasoning requires that this Court vacate the

Ninth Circuit’s decision and remand with instructions

to dismiss for lack of jurisdiction.

First, jurisdiction cannot be dependent on a judicial

finding that a regulation is ambiguous, whether that

finding is correct or not. It is well established that the

existence of a federal court’s jurisdiction depends on

the facts as they exist when an action is initiated.

Mollan v. Torrance, 22 U.S. 537, 539 (1824) (“It is

quite clear, that the jurisdiction of the Court depends

upon the state of things at the time of the action

brought. ...”). Similarly, jurisdiction may neither be

created retroactively, nor conferred on a court by the

argued that a challenge to an ambiguous EPA regulation could

be brought as a citizen suit. Amicus Curiae Brief of the United

States at 10-11, NEDC v. Brown, 9th Cir. No. 07-35266 (filed

Feb. 10, 2011). Ironically, the Ninth Circuit deferred to the

United States’ jurisdictional argument, although it accorded no

deference to EPA’s interpretation of its regulations. NEDC, 640

F.3d at 1068; see Brief for Petitioners, No. 11-338 at 22-31

(explaining that the Ninth Circuit’s failure to accord deference to

EPA’s interpretation of its regulations violated this Court’s

precedents); Brief for Petitioners, No. 11-347 at 18-50 (same).

Yet, a federal court is obligated to determine for itself whether it

has jurisdiction and may not defer to an interpretation regard-

ing its jurisdiction proffered by an agency or the United States.

See Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (“An appellate

federal court must satisfy itself not only of its own jurisdiction,

but also of that of the lower courts in a cause under review.”);

Our Children’s Earth Found. v. EPA, 527 F.3d 842, 846 n.3 (9th

Cir. 2008) (agency’s position on a federal court’s jurisdiction

under the CWA is not entitled to deference).

25

parties. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 569, n.4 (1992) (noting that Article III standing

may not be created retroactively); Ins. Corp. of Ire-

land, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982) (“no action of the parties can

confer subject-matter jurisdiction upon a federal

court”).

Here, the Ninth Circuit reversed this analysis by

finding an ambiguity in the Silvicultural Rule and

then, based upon that finding, determined that it had

jurisdiction over the citizen suit. The Ninth Circuit’s

analysis is simply backwards. It allows a court to

frustrate Congress’s intent in passing 33 U.S.C.

§ 1369(b) by deeming an EPA regulation ambiguous

and, thereby, creating its own jurisdiction over a citi-

zen suit.” Just as pleading an Article III injury must

“be something more than an ingenious academic ex-

ercise in the conceivable[,]” United States v. Students

Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 688 (1973), defeating the exclusive

jurisdiction of the courts of appeals under 33 U.S.C.

§ 1369(b) should require more than whether a court

can come up with two possible readings of an EPA

regulation.

* If allowed to stand, the Ninth Circuit’s decision will no

doubt entice environmental groups to challenge longstanding

EPA regulations in citizen suits and argue ambiguity to avoid

the 120-day limitation period in 33 U.S.C. § 1369(bx1), and

limitation periods in other environmental statutes. See, e.g., 42

U.S.C. § 7607(b)(1) (60-day time limit to challenge EPA regula-

tions promulgated under the Clean Air Act).

26

Second, the Ninth Circuit’s suggestion that

Respondent could not know which reading of the

Silvicultural Rule EPA would adopt until the United

States weighed in on this case stretches credulity

and is belied by the Ninth Circuit’s own decision. In

examining the history of the Silvicultural Rule, the

Ninth Circuit reviewed EPA’s 1976 notice of proposed

rulemaking for the Silvicultural Rule. NEDC, 640

F.3d at 1074 (quoting 41 Fed. Reg. 6,281-82 (Feb. 12,

1976)). From this notice of proposed rulemaking, the

Ninth Circuit was able to discern that EPA’s intent

was to:

[Cjharacterize discharges of pollutants through

a discernible, confined and discrete convey-

ance as point source discharges only when

they were “a result of controlled water used

by a person.” Under this criterion, the pro-

posed rule named as point source discharges

only those related to “rock crushing, gravel

washing, log sorting, [and] log storage facili-

ties.” Any other silvicultural discharge of pol-

lutants, even if made through a discernible,

confined and discrete conveyance, was con-

sidered a nonpoint source of pollutants. Jn ef-

fect, this meant that any natural runoff

containing pollutants was not a point source,

even if the runoff was channeled and con-

trolled through a “discernible, confined and

discrete conveyance” and then discharged in-

to navigable waters.

Id. at 1074-75 (emphasis added) (internal citations

omitted). Importantly, the Ninth Circuit recognized

27

that EPA made no substantive changes to its pro-

posed Silvicultural Rule when EPA issued the final

Silvicultural Rule in 1976 or when it revised it in

1980. Id. at 1075-78. Moreover, the Ninth Circuit’s

characterization of EPA’s intent in promulgating the

Silvicultural Rule, as discerned from EPA’s 1976

notice of proposed rulemaking, was identical] to EPA’s

interpretation of its Silvicultural Rule proffered in

this case. United States’ Amicus Curiae Brief at 11-

17, NEDC v. Brown, No. 306-CV-01270 (D. Or., filed

Dec. 6, 2006).

The public is generally charged with constructive

notice of what is published in the Federal Register. 44

U.S.C. § 1507; see Lawrence v. Dep’t of Interior, 525

F.3d 916, 920 (9th Cir. 2008); Fed. Crop Ins. Corp. v.

Merrill, 332 U.S. 380, 384-85 (1947) (“the appearance

of rules and regulations in the Federal Register gives

legal notice of their contents”). Thus, the Ninth

Circuit’s suggestion that Respondent could not know

which reading of the Silvicultural Rule EPA would

adopt until the United States filed its amicus curiae

brief is specious. The Ninth Circuit figured it out

by reading the Federal Register. Therefore, the Ninth

Circuit erred in ruling that the grounds for Respon-

dent’s challenge arose more than 120 days after the

challenged regulations were promulgated See NEDC,

640 F.3d at 1069. Instead, the Ninth Circuit should

have dismissed this case as time-barred.

Finally, even if the Ninth Circuit were somehow

correct in ruling that the grounds for Respondent’s

challenge arose more than 120 days after EPA’s

28

regulations were promulgated, it erred in ruling that

that delay somehow changed the proper forum. The

discovery of new grounds upon which to challenge an

EPA regulation does not create an exception to having

to seek judicial review in a court of appeals, it creates

an exception to the 120-day limitation period. Indeed,

this is evident from the plain language of 33 U.S.C.

§ 1369(bx1), which provides that “[rleview of the

Administrator’s action ... may be had by any inter-

ested person in [a court of appeals] ... upon applica-

tion.... Any such application shall be made within

120 days from the date of such determination, ap-

proval, promulgation, issuance or denial, or after

such date only if such application is based solely on

grounds which arose after such 120th day.” (Empha-

sis added). Nothing in this language suggests that

an “application” may be filed in the form of a citizen

suit in a district court under 33 U.S.C. § 1365. See

Maier, 114 F.3d at 1038 (When the “challenge is to the

substance of a regulation that the agency has already

promulgated, exclusive jurisdiction in the court of

appeals may not be evaded merely by styling the claim

as (something else].”). Thus, contrary to the decision

of the Ninth Circuit, the courts of appeals have

exclusive jurisdiction over challenges to EPA’s regula-

tions, even if the grounds for the challenge arose

more than 120 days after the regulations were prom-

ulgated.

29

CONCLUSION

For the foregoing reasons, this Court should

vacate the decision of the Ninth Circuit and remand

with instructions to dismiss for lack of subject matter

jurisdiction.

Respectfully submitted,

STEVEN J. LECHNER

Counsel of Record

JESSICA J. SPUHLER

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

lechner@mountainstateslegal.com

Counsel for Amicus Curiae