# Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A34

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 568 U.S. 1118

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A34. Public record. Not legal advice.