No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 Case: /30/2009 Page: 1 of 57 ID: DktEntry: 21-1 No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AKIAK NATIVE COMMUNITY, NUNAMTA AULUKESTAI, NONDALTON TRIBAL COUNCIL, CURYUNG TRIBAL COUNCIL, COOK INLETKEEPER, ALASKA CENTER FOR THE ENVIRONMENT, ALASKA COMMUNITY ACTION ON TOXICS, CENTER FOR BIOLOGICAL DIVERSITY, and THE CENTER FOR WATER ADVOCACY, Petitioners, and EKWOK TRIBAL COUNCIL, NEW STUYAHOK TRADITIONAL COUNCIL, and PRINCE WILLIAM SOUNDKEEPER, Petitioner-Intervenors, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, and LISA JACKSON, Administrator of the U.S. Environmental Protection Agency, Respondents, and STATE OF ALASKA, Respondent-Intervenor. PETITIONERS AND PETITIONER-INTERVENORS OPENING BRIEF Emily Anderson Victoria Clark Trustees for Alaska 1026 W. 4 TH Avenue, Suite 201 Anchorage, AK Phone: (907)

2 Case: /30/2009 Page: 2 of 57 ID: DktEntry: 21-1 CORPORATE DISCLOSURE STATEMENT Nunamta Aulukestai, Cook Inletkeeper, Alaska Center for the Environment, Alaska Community Action on Toxics, Center for Biological Diversity, Prince William Soundkeeper and The Center for Water Advocacy are non-profit organizations that have no parent corporations. No publicly held corporation owns 10% or more of their respective stock, or any lesser portion of stock, since the above-mentioned organizations have never issued any stock. Akiak Native Community, Ekwok Tribal Council, New Stuyahok Traditional Council, Nondalton Tribal Council and Curyung Tribal Council are tribal entities recognized by the United States. i

3 Case: /30/2009 Page: 3 of 57 ID: DktEntry: 21-1 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv JURISDICTIONAL STATEMENT...1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW...9 STATEMENT OF THE CASE...10 STATEMENT OF FACTS...11 SUMMARY OF THE ARGUMENT...15 STANDARD OF REVIEW...16 ARGUMENT...18 I. IN DELEGATING THE NPDES PERMITTING PROGRAM TO THE STATE OF ALASKA, EPA FAILED TO ENSURE THAT STATE LAW ALLOWS AN OPPORTUNITY FOR JUDICIAL REVIEW THAT IS THE SAME AS THAT AVAILABLE UNDER FEDERAL LAW...18 A. Under the CWA, the Christiansburg dual standard for attorney s fees must serve as the federal rule when assessing whether a state fee-shifting provision offers the same opportunity for judicial review as that provided for under federal law B. Alaska s fee-shifting statute, as opposed to the dual standard applied under federal law, limits the opportunity for judicial review and operates to narrowly restrict the class of persons who may challenge permits in state court in violation of 40 C.F.R ii

4 Case: /30/2009 Page: 4 of 57 ID: DktEntry: 21-1 II. WHEN IT DELEGATED THE NPDES PERMITTING PROGRAM TO THE STATE OF ALASKA, EPA FAILED TO UPHOLD THE FEDERAL GOVERNMENT S DUTY UNDER ANILCA TO PROTECT SUBSISTENCE RESOURCES IN ALASKA S NAVIGABLE WATERS...33 A. The CWA, a statute of general application, must not be interpreted to repeal ANILCA s Alaska-specific subsistence protection mandates...37 III. IN DELEGATING THE NPDES PERMITTING AUTHORITY TO THE STATE OF ALASKA, EPA FAILED TO ENSURE THAT THE STATE HAS ADEQUATE ADMINISTRATIVE TOOLS TO ENFORCE THE CWA...44 CONCLUSION...47 iii

5 Case: /30/2009 Page: 5 of 57 ID: DktEntry: 21-1 TABLE OF AUTHORITIES Cases Amoco Production Company v. Village of Gambell, 480 U.S. 531 (1987)...37 Accord Northcross v. Bd. of Education of Memphis City Schools, 412 U.S. 427 (1973)...22 Alaska Ctr. for the Env t v. State, 940 P.2d 916 (Alaska 1997) th Alaska v. Babbitt, 72 F.3d 698 (9 Cir. 1995)...36 Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975)...21 Anchorage v. McCabe, 568 P.2d 986 (Alaska 1977)...26 Carr Gottstein Properties v. State, 899 P.2d 136 (Alaska 1995)...26 Chevron U.S.A. Inc. v. Hammond, 726 F.2d 483 (9 th Cir. 1984)...40 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)... 18, 47 Christensen v. Harris County, 529 U.S. 576 (2000)...18 Christiansburg Garment Co., v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978)... 21, 22, 23 City of Angoon v. Hodel, 803 F.2d 1016 (9 th Cir. 1986)...35 City of Burlington v Dague, 505 U.S. 557 (1992)...22 Fogarty v. Fantasy Inc., 510 U.S. 517 (1994)...23 Friends of the Earth v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167 (2000)...5 iv

6 Case: /30/2009 Page: 6 of 57 ID: DktEntry: 21-1 Hensley v. Eckerhart, 461 U.S. 424 (1983)...22 Hunt v. Wash. State Apple Advert. Comm n, 432 U.S. 333 (1977)...6 Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977 (9th Cir. 1993)...17 John v. United States, 247 F.3d 1032 (9 th Cir. 2001)...35 Massachusetts v. EPA, 127 S.Ct (2007)...8 McDowell v. State, 785 P.2d 1 (Alaska 1989)...41 Morton v. Mancari, 417 U.S. 535 (1974) Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)17 Municipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996)...30 Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008)...18 National Ass n of Home Builders v. Defenders of Wildlife, 127 S.Ct (2007)...43 Natural Res. Def. Council v. EPA, 526 F.3d 591 (9th Cir. 2008)...17 Newman v. Piggie Park Enterprises Inc., 390 U.S. 400 (1968)... 22, 23, 26 Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003)...6 Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546 (1986)...22 Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983)...21 th Sierra Club v. Chevron, U.S.A., Inc. 834 F.2d 1517 (9 Cir. 1987)...24 v

7 Case: /30/2009 Page: 7 of 57 ID: DktEntry: 21-1 Southeast Alaska Conservation Council Inc., v. State, 665 P.2d 544 (Alaska 1983)...26 State v. Native Village of Nunapitchuk, 156 P.3d 389 (Alaska 2007)...29 Summers v. Earth Island Inst., 129 S.Ct (2009)...6 Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979) U.S. v. Mead Corp., 533 U.S. 218 (2001)...18 Statutes 5 U.S.C U.S.C , 17, U.S.C , 34, 35, U.S.C , 42, U.S.C U.S.C U.S.C , 36, 37, 38, 40 passim 33 U.S.C , 15, U.S.C , 44, 45, U.S.C , 10, 12, 13, 16 passim 33 U.S.C , 2, U.S.C U.S.C U.S.C vi

8 Case: /30/2009 Page: 8 of 57 ID: DktEntry: 21-1 ALASKA STAT ALASKA STAT , 29 Rules Alaska R. App. P Alaska Civ. R Regulations 40 C.F.R C.F.R , 20, 24, 33 vii

9 Case: /30/2009 Page: 9 of 57 ID: DktEntry: 21-1 JURISDICTIONAL STATEMENT The Clean Water Act ( CWA ) provides for [r]eview of the Administrator s action in making any determination as to a State permit program submitted under section 1342(b) of this title. 33 U.S.C. 1369(b)(1)(D). On October 31, 2008, Respondents U.S. Environmental Protection Agency and Administrator Lisa Jackson (collectively EPA ) approved the State of Alaska s application to administer an Alaska version of the National Pollutant Discharge Elimination System ( NPDES ) permitting program pursuant to section 402(b), 33 U.S.C. 1342(b), of the CWA. 73 Fed. Reg (Nov. 7, 2008). On November 26, 2008, Akiak Native Community, Nunamta Aulukestai, Nondalton Tribal Council, Curyung Tribal Council, Cook Inletkeeper, Alaska Center for the Environment, Alaska Community Action on Toxics, Center for Biological Diversity and The Center for Water Advocacy (collectively Akiak Native Community ) petitioned this Court for review of EPA s decision to approve the State of Alaska's application to administer the NPDES permitting program pursuant to Section 402(b) of the CWA. In addition, on March 20, 2009, Ekwok Tribal Council, New Stuyahok Traditional Council, and Prince William Soundkeeper (collectively Ekwok Tribal Council ) moved this Court to join the case with Akiak Native Community as Petitioners and were allowed to do so as Petitioner-Intervenors. The Court has jurisdiction to review this Petition for the 1

10 Case: /30/2009 Page: 10 of 57 ID: DktEntry: 21-1 following reasons: EPA approved the State of Alaska s application to administer the NPDES permitting program; Akiak Native Community and Ekwok Tribal Council consist of interested person[s] that reside and transact business in the District of Alaska; and Akiak Native Community and Ekwok Tribal Council are directly affected by EPA s decision and timely filed the Petition for Review. 33 U.S.C. 1369(b)(1)(D). In addition, Akiak Native Community, Nunamta Aulukestai, Nondalton Tribal Council, Curyung Tribal Council, Cook Inletkeeper, Alaska Center for the Environment, Alaska Community Action on Toxics, Center for Biological Diversity, the Center for Water Advocacy, Ekwok Tribal Council, New Stuyahok Traditional Council, and Prince William Soundkeeper each has standing to bring this Petition. Akiak Native Community, Nondalton Tribal Council, Curyung Tribal Council, Ekwok Tribal Council, and New Stuyahok Traditional Council are federally-recognized tribal governments organized under the Indian Reorganization Act of 1934, as amended for Alaska Natives in Declaration of Ivan M. Ivan ( Ivan Decl. ), Addendum ( Add. ) 2, pp. 1-2, 1; Declaration of Sheila Williams ( Williams Decl. ), Add. 2, pp. 4-5, 1; Declaration of Jackie G. Hobson ( Hobson Decl. ), Add. 2, pp. 7-8, 1; Declaration of Ricky David Delkittie, Sr. ( Delkittie Decl. ), Add. 2, pp , 1; Declaration of Thomas Tilden ( Tilden Decl. ), Add. 2, pp , 1; Declaration of Luki Akelkok, Sr. ( Akelkok Decl. ), Add. 2, pp , 1; and Declaration of Moxie Andrew, Jr. ( Andrew Decl. ), Add. 2, pp , 1. 2

11 Case: /30/2009 Page: 11 of 57 ID: DktEntry: 21-1 Akiak, Alaska is located in Western Alaska along the lower Kuskokwim River. 2 Nondalton, Alaska, Dillingham, Alaska, Ekwok, Alaska, and New Stuyahok, Alaska are located in the Bristol Bay region of Southwest Alaska. 3 Nunamta Aulukestai, which means Caretakers of Our Land in Yup ik, is an organization of eight Alaska Native Village Corporations, located in the Bristol Bay region of Alaska. The villages are: Ekwok; Koliganek; New Stuyahok; Clarks Point; Aleknagik; Togiak; Manakotak; and Dillingham. 4 Cook Inletkeeper is an Alaska non-profit organization dedicated to protecting the Cook Inlet watershed and the life it sustains, and has offices in Anchorage, Alaska, in Upper Cook Inlet, and in Homer, Alaska, on Kachemak Bay in lower Cook Inlet. 5 Cook Inletkeeper has approximately 800 members. 6 Alaska Center for the Environment ( ACE ) is an Alaska nonprofit corporation whose mission is to enhance Alaskans quality of life by protecting 2 Ivan Decl., Add. 2, p. 2, 2; Williams Decl., Add. 2, p. 5, 2. 3 Hobson Decl., Add. 2, p. 8, 2-3; Delkittie Decl., Add. 2, p. 11, 2, 5; Tilden Decl., Add. 2, p. 15, 2-3; Akelkok Decl., Add. 2, p. 19, 2-4; and Andrew Decl., Add. 2, p. 52, Tilden Decl., Add. 2, p. 15, 1; Akelkok Decl., Add. 2, p. 19, 1; and Andrew Decl., Add. 2, p. 52, 1. 5 Declaration of Robert W. Shavelson, Jr. ( Shavelson Decl. ), Add. 2, pp , Id. at p. 22, 2. 3

12 Case: /30/2009 Page: 12 of 57 ID: DktEntry: 21-1 wild places, fostering sustainable communities, and promoting recreational opportunities. 7 Alaska Community Action on Toxics ( ACAT ) is a statewide, environmental health and justice research and advocacy organization founded in ACAT s mission is to assure justice by advocating for environmental and community health, and its staff and members believe everyone has the right to clean air, clean water, and toxic-free food. 9 ACAT has approximately 2,650 members. 10 The Center for Biological Diversity ( CBD ) is a non-profit organization based in Tucson, Arizona, with several regional offices, including an office in Anchorage, Alaska and has more than 60,000 members, including members who live in Alaska. 11 The Center for Biological Diversity s goal is to protect Alaska wildlife and habitat through administrative actions and reform, scientific research and the judicial process Declaration of Valerie Connor ( Connor Decl. ), Add. 2, p. 28, 5. 8 Declaration of Pamela K. Miller ( Miller Decl. ), Add. 2, pp , 1. 9 Id. at p. 35, Id. 11 Declaration of Natalie Dawson ( Dawson Decl. ), Add. 2, p. 39, Id. at p. 39, 2. 4

13 Case: /30/2009 Page: 13 of 57 ID: DktEntry: 21-1 The Center for Water Advocacy is a non-profit public interest law firm based in Moab, Utah whose mission is to promote the long-term sustainability of water resources in the western United States for the benefit of fish and wildlife populations, habitat, aesthetics, recreation, and traditional and cultural activities, using the principles of democracy, environmental justice, and sound ecology as its guide. 13 Prince William Soundkeeper is a non-profit organization whose mission is to protect water quality and the life it sustains in the Prince William Sound ecosystem. 14 Prince William Soundkeeper works to monitor, protect, and enhance the waters of Prince William Sound through active stewardship, research, monitoring and fact-based education. 15 To establish standing, a party must show that (1) at least one of its members has suffered an injury-in-fact, (2) the injury is fairly traceable to the agency s illegal conduct, and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, (2000); see also Summers v. Earth Island Declaration of Harold Shepherd ( Shepherd Decl. ), Add. 2, pp , 14 Declaration of Travis L. Vlasoff ( Vlasoff Decl. ), Add. 2, pp , Id. 5

14 Case: /30/2009 Page: 14 of 57 ID: DktEntry: 21-1 Inst., 129 S.Ct. 1142, 1149 (2009). Each of the Petitioners and Petitioner- Intervenors satisfies this burden. As an initial matter, Akiak Native Community, Nunamta Aulukestai, Nondalton Tribal Council, Curyung Tribal Council, Cook Inletkeeper, ACE, ACAT, CBD, the Center for Water Advocacy, Ekwok Tribal Council, New Stuyahok Traditional Council, and Prince William Soundkeeper have standing to sue on behalf of their members because they can show that at least one of their members has standing to sue. Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (citing Hunt v. Wash. State Apple Advert. Comm n, 432 U.S. 333, 343 (1977)). 16 Petitioners and Petitioner-Intervenors interests here are coextensive with those of their members, and the redress sought, setting aside EPA s decision to delegate the NPDES program to Alaska, does not require the individual participation of the members. See Oregon Advocacy Ctr., 322 F.3d at 16 See Ivan Decl., Add. 2, pp. 1-2, 1 (Akiak Native Community); Williams Decl., Add. 2, pp. 4-5, 1 (Akiak Native Community); Hobson Decl., Add. 2, pp. 7-8, 1 (Nondalton Tribal Council); Delkittie Decl., Add. 2, pp , 1 (Nondalton Tribal Council); Tilden Decl., Add. 2, pp , 1 (Curyung Tribal Council, Nunamta Aulukestai); Akelkok Decl., Add. 2, pp , 1 (Ekwok Tribal Council, Nunamta Aulukestai); Shavelson Decl., Add. 2, pp , 1-2 (Cook Inletkeeper); Connor Decl., Add. 2, p. 28, 5 (ACE); Declaration of Toby Smith ( Smith Decl. ), Add. 2, pp , 1 (ACE); Miller Decl., Add. 2, pp , 1 (ACAT); Dawson Decl., Add. 2, p. 39, 3 (CBD); Shepherd Decl., Add. 2, pp , 1 (Center for Water Advocacy); Andrew Decl., Add. 2, pp , 1 (New Stuyahok Traditional Council); and Vlasoff Decl., Add. 2, pp , 1 (Prince William Soundkeeper). 6

15 Case: /30/2009 Page: 15 of 57 ID: DktEntry: (citing Hunt, 432 U.S. at 343). The interests Petitioners and Petitioner- Intervenors seek to protect also are germane to their organizational purposes. 17 Akiak Native Community, Nunamta Aulukestai, Nondalton Tribal Council, Curyung Tribal Council, Cook Inletkeeper, ACE, ACAT, CBD, the Center for Water Advocacy, Ekwok Tribal Council, New Stuyahok Traditional Council, and Prince William Soundkeeper and their members have suffered particularized and concrete injuries to their aesthetic, cultural, religious, and subsistence interests, as well as procedural and informational injuries, stemming from EPA s unlawful conduct. Akiak Native Community, Nunamta Aulukestai, Nondalton Tribal Council, Curyung Tribal Council, Ekwok Tribal Council, and New Stuyahok Traditional Council suffer particularized and concrete injuries to their interests in preserving their subsistence culture and the animals on which their culture relies Id.; see also Shavelson Decl., Add. 2, pp , 4-8 (Cook Inletkeeper); Connor Decl., Add. 2, pp , 5-9 (ACE); Smith Decl., Add. 2, pp , 7-11 (ACE); Miller Decl., Add.2, pp , 6-10 (ACAT); Dawson Decl., Add. 2, pp , 45-46, 2-6, 16 (CBD); Shepherd Decl., Add. 2, pp , , 7-9 (Center for Water Advocacy); and Vlasoff Decl., Add. 2, pp , 55-56, 1, 4-6 (Prince William Soundkeeper). 18 See Ivan Decl., Add. 2, pp. 2-3, 4-9; Williams Decl., Add. 2, pp. 5-6, 3-9; Hobson Decl., Add. 2, pp. 8-9, 3-8; Delkittie Decl., Add. 2, pp , 4-10; Tilden Decl., Add. 2, pp , 3-8; Akelkok Decl., Add. 2, pp , 3-9; and Andrew Decl., Add. 2, pp ,

16 Case: /30/2009 Page: 16 of 57 ID: DktEntry: 21-1 Further, as federally-recognized tribes, Akiak Native Community, Nondalton Tribal Council, Curyung Tribal Council, Ekwok Tribal Council, and New Stuyahok Traditional Council are sovereign entities, and as such, entitled to special solicitude in the standing analysis. Massachusetts v. EPA, 127 S.Ct. 1438, (2007) (recognizing Massachusetts standing to sue for violation of procedural right and noting that Massachusetts status as a sovereign state entitled it to special solicitude in the Court s standing analysis). By failing to adhere to Clean Water Act and ANILCA requirements, EPA s decision injures Akiak Native Community s, Nondalton Tribal Council s, Curyung Tribal Council s, Ekwok Tribal Council s, and New Stuyahok Traditional Council s interests in harvesting the living resources necessary to feed their members from the waters of the U.S. in Alaska as well as their interests in maintaining their cultural and religious traditions based on those resources. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, (1st Cir. 2007) (holding that petitioner tribe had standing to sue under the National Environmental Policy Act, the Endangered Species Act, and the National Historic Preservation Act because its members lived near the land in question and used it for a variety of ceremonial and community purposes). Cook Inletkeeper, ACE, ACAT, CBD, the Center for Water Advocacy, and Prince William Soundkeeper suffer particularized and concrete injuries to their 8

17 Case: /30/2009 Page: 17 of 57 ID: DktEntry: 21-1 aesthetic, recreational, wildlife observation, and subsistence interests as a result of EPA s decision to delegate the NPDES program to Alaska. 19 These injuries are directly traceable to EPA s decision to delegate the NPDES program to Alaska. The relief sought setting aside EPA s decision will redress Akiak Native Community s, Nunamta Aulukestai s, Nondalton Tribal Council s, Curyung Tribal Council s, Cook Inletkeeper s, ACE s, ACAT s, CBD s, the Center for Water Advocacy s, Ekwok Tribal Council s, New Stuyahok Traditional Council s, and Prince William Soundkeeper s injuries because it may change the outcome of the decision and force EPA to comply with the requirements of the Clean Water Act and ANILCA, which will protect the interests at stake in this Petition. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Did EPA violate sections 402(b)(7) of the CWA, and its duties under the Administrative Procedure Act ( APA ), by approving the State of Alaska s application to administer the NPDES permitting program without ensuring that Alaska law allows the same opportunity for judicial review that is available under Federal law? 19 See Shavelson Decl., Add. 2, pp. 22, 23-24, 3, 5-8; Connor Decl., Add. 2, pp , 3-9; Smith Decl., Add. 2, pp , 3-11; Miller Decl., Add. 2, pp , 3-10; Dawson Decl., Add. 2, pp , 6-16; Shepherd Decl., Add. 2, pp ; and Vlasoff Decl., Add. 2, pp ,

18 Case: /30/2009 Page: 18 of 57 ID: DktEntry: When EPA delegated the NPDES permitting program to the State of Alaska, did EPA abrogate its duties under the Alaska National Interest Lands Conservation Act ( ANILCA ) and the APA by failing to ensure the protection of subsistence resources in Alaska s navigable waters? 3. Did EPA violate section 402(b)(7) of the CWA, and its duties under the APA, by delegating the NPDES permitting program to the State of Alaska without ensuring that the State had adequate administrative tools to enforce the law? STATEMENT OF THE CASE Akiak Native Community and Ekwok Tribal Council (collectively Akiak Native Community ) seek review of EPA s decision, issued on October 31, 2008, to delegate the NPDES permitting authority to the State of Alaska. ER 1-3. EPA s decision allows the State of Alaska to issue permits that authorize the discharge of pollutants into navigable waters of the United States in Alaska without ensuring that Alaska law: (1) encourages citizen involvement in the enforcement of the CWA by allowing the same opportunity for judicial review as provided by Federal law; (2) protects subsistence resources as mandated by ANILCA; and (3) provides the State with the enforcement tools necessary to sufficiently abate permit violations consistent with the CWA. Therefore, EPA s decision to delegate the NPDES permitting authority to the State of Alaska is unlawful under section 402(b) of the CWA, 33 U.S.C. 1342(b), and violates the duties imposed on it 10

19 Case: /30/2009 Page: 19 of 57 ID: DktEntry: 21-1 under the APA, 5 U.S.C. 706(2). Accordingly, the Court must hold EPA s decision unlawful and set it aside. 5 U.S.C. 706(2)(A), (D). STATEMENT OF FACTS As the largest state in the union, Alaska spans an area that is roughly one fifth the size of the entire lower 48 states. Characterized by rugged mountains, expansive tundra, vast coastal regions, untamed wilderness, and ecological diversity, Alaska truly is the great land. In addition to Alaska s well known qualities, the state s diverse climatic regions also support a vast network of over 12,000 rivers and more than 3 million lakes. 20 In total, Alaska harbors an estimated 40 percent of the Nation s surface water. 21 Since time immemorial, Alaska s pristine waters have supported wildlife, world-class salmon runs, and Alaska Native people. Today, little has changed and people, fish and wildlife alike still rely on Alaska s clean water for survival. This is particularly true in rural communities where modern amenities are scarce and where subsistence fisheries contribute to about 62 percent [o]f the estimated 43.7 million pounds of wild foods annually harvested for subsistence purposes United States Fish and Wildlife Service, Alaska region website available at (last visited on September 4, 2008). 21 Id. 22 Alaska Department of Fish and Game, Subsistence Division, Alaska Subsistence Salmon Fisheries 2006 Annual Report (May 2009) at 8 available at 11

20 Case: /30/2009 Page: 20 of 57 ID: DktEntry: 21-1 To protect water quality, in 1972, Congress enacted the Federal Water Pollution Control Act ( Clean Water Act or CWA ) to restore and maintain the chemical, physical, and biological integrity of the Nation s waters. 33 U.S.C. 1251(a). Consistent with that objective, Congress created the NPDES program to regulate the discharge of pollutants to the navigable waters of the United States. 33 U.S.C As the program name suggests, the NPDES program was designed to regulate pollutant discharges with the ultimate goal of eliminating them, and to protect water quality in the interim. Until recently, EPA implemented the entire NPDES permitting program in Alaska. ER 1-3. Congress, however, envisioned that eventually states, when able, would be delegated NPDES permitting authority by EPA, which would retain oversight responsibility. 33 U.S.C. 1342(b). Under the CWA, the Governor of a state may submit an application to EPA requesting the authority to administer its own NPDES permit program. Id. In the application, the State must describe the program it proposes to establish and submit a statement from the attorney general that details the State s legal authority to carry ( On average, the subsistence fisheries harvest provides about 230 pounds of food per person annually in rural Alaska. ). Petitioners reliance on subsistence is of acute importance in this matter. Congress has enacted, and this Court has broadly interpreted, provisions to safeguard subsistence resources in Alaska s waters. As will be argued, infra, these safeguards will be effectively, and impermissibly, annulled by the challenged delegation. 12

21 Case: /30/2009 Page: 21 of 57 ID: DktEntry: 21-1 out the program. Id. The EPA Administrator shall approve each such submitted program unless he determines that adequate authority does not exist to support a program. Id. In making this determination, the Administrator must evaluate the proposed program against nine criteria detailed in the statute and the specific requirements set forth in the corresponding regulations. See 33 U.S.C. 1342(b); 40 CFR Part 123. The State of Alaska first attempted to take over NPDES permitting authority in ER Largely relying on an industry-agency workgroup to develop the program, the State failed to meet the requirements of the CWA and EPA deemed the application incomplete. ER 368. In the following months, the State began a renewed effort to develop a complete application. Due to the State s apparent industry bias in the first application, this effort was not well received by the public. On July 3, 2007, before the new application was submitted, the Alaska Inter-Tribal Council ( AITC ), a consortium of federally-recognized tribes, submitted to EPA a Notice of Protest objecting to the delegation of NPDES permitting authority to the State. ER Noting that the State of Alaska does not recognize Alaska Native tribal governments, AITC urged EPA to protect Alaska Native rights and interests with respect to sovereignty and subsistence and to retain jurisdiction of the program. Id. Shortly thereafter, on September 24, 2007, Trustees for Alaska on behalf of several conservation 13

22 Case: /30/2009 Page: 22 of 57 ID: DktEntry: 21-1 groups also alerted EPA to significant limitations under state law that would prevent the public from challenging the legal adequacy of NPDES permits in violation of the CWA. ER After making some statutory and regulatory changes, the State submitted its revamped application to EPA on May 1, 2008, (ER ) and EPA deemed the application complete on June 10, ER 154. During the 60-day comment period that followed (ER 224), Trustees for Alaska submitted detailed comments on behalf of Native villages and conservation groups that raised a variety of objections and concerns about the State s proposed program. ER The Alaska Inter-Tribal Council and many other Native tribal governments also submitted comments on the proposed program reiterating concerns about sovereignty and the protection of Native interests in Alaska. ER Despite these objections, on October 31, 2008, EPA approved the State of Alaska s application. ER 63. The NPDES permitting program was officially delegated to the State of Alaska on November 7, 2008, with the State taking over the program in phases: (1) Domestic discharges, log storage and transfer facilities, seafood processing facilities, and hatcheries on October 31, 2008; (2) federal facilities domestic plants at Department of Defense and U.S. Coast Guard facilities/cooling water, storm water, pretreatment program, and miscellaneous non-domestic discharges on October 31, 2009; (3) mining on October 31, 2010; 14

23 Case: /30/2009 Page: 23 of 57 ID: DktEntry: 21-1 and finally (4) oil and gas industry, cooling water intakes, and munitions on October 31, ER 1-3. Akiak Native Community timely filed this Petition for Review. SUMMARY OF THE ARGUMENT By delegating the NPDES permitting program to the State of Alaska, EPA failed to ensure that Alaska law provides adequate authority to implement the program consistent with the goals of the CWA and ANILCA. EPA failed to do so, in part, by delegating the NPDES program without ensuring that the State has the ability to abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement. 33 U.S.C. 1342(b)(7). Specifically, EPA delegated the program even though Alaska s rule for the award of attorney s fees, the only loser pays statute in the United States, unreasonably deters citizens from challenging permit violations in state court. In doing so, EPA failed to ensure that state law would encourage public participation in the enforcement of the CWA in violation of section 101(e), 33 U.S.C. 1251(e), and allow the same access to the courts as provided under Federal law. 40 C.F.R EPA also failed to ensure that agency officials implementing the state program have the authority to assess administrative penalties without a court order. The inability to assess penalties administratively is inconsistent with the robust 15

24 Case: /30/2009 Page: 24 of 57 ID: DktEntry: 21-1 enforcement scheme created under the CWA. See generally 33 U.S.C As a practical matter, it also fails to provide the necessary incentives to bring accidental permit violations into compliance quickly or to adequately deter permit holders from willfully violating permits, which is contrary to intent of the CWA. Finally, by delegating the NPDES permitting program to Alaska, EPA abrogated its duty under ANILCA to protect the resources related to subsistence needs and the subsistence way of life. 16 U.S.C. 3101(b), (c). Water pollution directly threatens Alaska s largest and most depended upon subsistence resourcesalmon. Nonetheless, EPA delegated the program without any consideration of the potential adverse effects on subsistence resources as mandated by law and without preserving an equivalent form of ANILCA s Alaska-specific subsistence evaluation mandate in the State program. 16 U.S.C. 3120(a). As a result, EPA s approval of the State of Alaska s program stands as an unmistakable obstacle to the accomplishment of the goals of ANILCA in violation of Federal law. STANDARD OF REVIEW Akiak Native Community seeks judicial review of [a]gency action made reviewable by statute for which the Administrative Procedure Act ( APA ) provides the standard of review. 5 U.S.C The APA provides that a reviewing court shall... hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise 16

25 Case: /30/2009 Page: 25 of 57 ID: DktEntry: 21-1 not in accordance with law[,]... [or] without observance of procedure required by law. 5 U.S.C. 706(2)(A), (D). According to the U.S. Supreme Court and this Court, [n]ormally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Natural Res. Def. Council v. EPA, 526 F.3d 591, 602 (9th Cir. 2008). To decide whether agency action is arbitrary and capricious, a court will conduct a searching and careful inquiry into the facts, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors. Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 980 (9th Cir. 1993). See Motor Vehicle Mfrs. Ass n, 463 U.S. at 43 ( [An] agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. ). When interpreting a statute, a court may defer to an agency s interpretation only if all of the following requirements are met: first, the statute is ambiguous; second, Congress has explicitly or implicitly delegated authority to the agency to interpret the ambiguous provision; and third, the agency has interpreted the statute 17

26 Case: /30/2009 Page: 26 of 57 ID: DktEntry: 21-1 reasonably and consistent with congressional intent. U.S. v. Mead Corp., 533 U.S. 218, (2001); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984). A court may defer to an agency interpretation of the agency s own regulation only if the regulation is ambiguous. Christensen v. Harris County, 529 U.S. 576, 588 (2000). Furthermore, agency interpretation of a statute or regulation that might otherwise qualify for deference, but which contradicts a prior interpretation by the agency, merits little deference. Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 524 F.3d 917, 928 (9th Cir. 2008). ARGUMENT I. IN DELEGATING THE NPDES PERMITTING PROGRAM TO THE STATE OF ALASKA, EPA FAILED TO ENSURE THAT STATE LAW ALLOWS AN OPPORTUNITY FOR JUDICIAL REVIEW THAT IS THE SAME AS THAT AVAILABLE UNDER FEDERAL LAW. Central to the effective administration of the CWA, and specifically the NPDES permitting program, is the ability to enforce the law. Before EPA can lawfully transfer the NPDES permitting program to a state, the state must have the legal authority to abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement. 33 U.S.C. 1342(b)(7) (emphasis added). Once the program is transferred, this requirement sets up an enforcement scheme that involves federal, state, and citizen efforts. While government enforcement is often the first line of defense against violations 18

27 Case: /30/2009 Page: 27 of 57 ID: DktEntry: 21-1 of NPDES permits, Congress recognized that citizen involvement and enforcement was essential to further the goals of the Clean Water Act. S. Rep. No , at 10 (1971) reprinted in II A Legislative History of the Water Pollution Control Act Amendments of 1972, 93 rd Cong., 1 st Sess., 1430 (1973) ( Legislative History ) ( A high degree of informed public participation in the control process is essential to the accomplishment of the objectives we seek a restored and protected natural environment. ). In fact, under section 101(e) of the CWA, the Administrator of the EPA has an express duty to encourage public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan or program established pursuant to the Act. CWA Section 101(e); 33 U.S.C. 1251(e). As emphasized by Representative Dingell who proposed an amendment to the CWA, the substance of which was incorporated in section 101(e), I sincerely hope that the Administrator understands that [section 101(e)] applies across the board, including the establishment of the permit program under section 402 of the bill. I Legislative History at 108. Part of fulfilling the mandate of section 101(e) is ensuring that citizens have access to the judicial system. As such, the EPA must guarantee that, [a]ll States that administer or seek to administer a program under this part shall provide an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process. A State 19

28 Case: /30/2009 Page: 28 of 57 ID: DktEntry: 21-1 will meet this standard if State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit. A state will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits. 40 C.F.R This regulation refers specifically to the language of CWA section 509, 33 U.S.C. 1369, which among other things indicates that this equal-opportunity mandate applies to the award of attorney s fees. Section 509 provides that the court may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party whenever it determines that such award is appropriate. 33 U.S.C. 1369(b)(3). While the CWA uses rather conventional language, it is the application of this provision under federal law that ensures citizen involvement in the enforcement of the NPDES permitting program. In contrast, Alaska s rule for the award of attorney s fees, which is the only loser pays statute in the United States, poses a significant hurdle that curtails citizen access to the court system. Consequently, EPA s delegation of the NPDES program to Alaska failed to ensure that state law would encourage the same level of public participation in the enforcement of the CWA and allow equivalent access to the courts. EPA s decision was therefore arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law. 20

29 Case: /30/2009 Page: 29 of 57 ID: DktEntry: 21-1 A. Under the CWA, the Christiansburg dual standard for attorney s fees must serve as the federal rule when assessing whether a state fee-shifting provision offers the same opportunity for judicial review as that provided for under federal law. It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney s fees. Christiansburg Garment Co., v. Equal Employment Opportunity Commission, 434 U.S. 412, 415 (1978) (citing Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975)). This rule expresses the starting point for the assessment of every fee award. While preserving that basic assumption, Congress uses fee-shifting provisions in statutes when, in the interest of granting or protecting various federal rights, fees should appropriately be assessed. Alyeska Pipeline Co., 421 U.S. at 260. The legislative history of the particular statute is used to determine the appropriate application of a fee-shifting provision. Id. at 262. While the U.S. Supreme Court has not definitively ruled on the application of the fee-shifting provisions in all statutes, similar attorney s fee provisions should be interpreted pari passu. Ruckelshaus v. Sierra Club, 463 U.S. 680, 691 (1983). Fee-shifting provisions in environmental statutes have been compared to feeshifting provisions in federal civil rights laws because of the similarities of the public interest goals and objectives behind the statutes. The Court has interpreted civil rights fee-shifting statutes against the backdrop of a strong Congressional directive to encourage public participation as a necessary means to enforce the law. 21

30 Case: /30/2009 Page: 30 of 57 ID: DktEntry: 21-1 Echoed in various opinions, the Court has observed that a plaintiff who challenges a violation of the Civil Rights Act, does so not for himself alone but also as a private attorney general, vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorney s fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees-not simply to penalize litigants who deliberately advance arguments they know to be untenable, but more broadly, to encourage individuals injured by racial discrimination to seek judicial relief. Newman v. Piggie Park Enterprises Inc., 390 U.S. 400, 402 (1968). Accord Northcross v. Bd. of Education of Memphis City Schools, 412 U.S. 427, 428 (1973); Christiansburg, 434 U.S. at 416; Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Similar purposes underlying fee-shifting provisions in environmental statutes have been expressly recognized. For instance, in Delaware Valley, relying on legislative history that clearly promoted citizen enforcement of the Clean Air Act ( CAA ) similar to section 1988 of the Civil Rights Attorney s Fees Awards Act, the Court found no reason not to interpret both provisions governing attorney s fees in the same manner. Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 560 (1986). See also City of Burlington v Dague, 505 U.S. 557, (1992) (favorably comparing a fee-shifting provision of the CWA to other fee shifting provisions, including the civil rights provisions). 22

31 Case: /30/2009 Page: 31 of 57 ID: DktEntry: 21-1 But see Fogarty v. Fantasy Inc., 510 U.S. 517, 522 (1994) (rejecting the comparison of civil rights fee shifting provisions to a similar provision in the Copyright Act of 1976 because the legislative history, goals and objective of the Act did not support treating prevailing plaintiffs and defendants differently). While not all federal fee-shifting provisions require the same treatment, given the CWA s express mandate to encourage citizen involvement in the enforcement of the Act, the fee-shifting provision in section 509 should be interpreted in the same manner that the Court has interpreted fee-shifting provisions in the CAA and the civil rights statutes. Thus, consistent with longstanding Supreme Court precedent, prevailing plaintiffs under the fee-shifting provision in section 509, should ordinarily recover an attorney s fee unless special circumstances would render such an award unjust. Newman, 390 U.S. at 402. On the other hand, the Supreme Court has made clear that a prevailing defendant may only recover attorney s fees from a plaintiff if the action was frivolous, unreasonable or groundless, or [if the] plaintiff continued to litigate after it clearly became so. Christiansburg, 434 U.S. at 422. This dual standard serves on the one hand to affirmatively encourage citizen enforcement of the law by recompensing the successful plaintiff for the litigation expenses incurred, while on the other hand it ensures that a plaintiff can access the court system and bring non-frivolous enforcement challenges in the 23

32 Case: /30/2009 Page: 32 of 57 ID: DktEntry: 21-1 public interest without the threat of major financial liabilities by being forced to pay the other side s attorney s fees in the event they do not prevail. As a result, the dual standard promotes citizen participation in the enforcement of the CWA, which in turn advances the goals and objectives of the law. See Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, (9 th Cir. 1987). In contrast, denying prevailing plaintiff s full reasonable attorney s fees or penalizing plaintiffs who raised non-frivolous claims by awarding fees to prevailing defendants limits access to the courts and defeats the CWA s express directive to encourage citizen involvement and enforcement of the law. See 33 U.S.C. 1365, 1369(b)(1)(F). Consequently, the Christiansburg dual standard must serve as the federal rule against which EPA assesses whether a state feeshifting provision offers the same opportunity for judicial review as that allowed under federal law. See 40 C.F.R Since EPA did not preserve this dual standard when it approved the delegation of the NPDES program to Alaska, its decision is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with the law. B. Alaska s fee-shifting statute, as opposed to the dual standard applied under federal law, limits the opportunity for judicial review and operates to narrowly restrict the class of persons who may challenge permits in state court in violation of 40 C.F.R

33 Case: /30/2009 Page: 33 of 57 ID: DktEntry: 21-1 In stark contrast to the dual standard applied to the CWA s fee-shifting provision under federal law, Alaska applies the English loser pays rule to govern the recovery of attorney s fees for civil actions in state court. See ALASKA STAT ; Alaska R. Civ. P. 82 ( Rule 82 ); Alaska R. App. P. 508(e). Under Alaska law, Rule 82 establishes the general rule that the prevailing party in a civil case shall be awarded attorney s fees calculated by the rubric of the rule. Alaska Civ. R. 82(a) (emphasis added). In cases where there is no money judgment, like cases challenging CWA permits, Rule 82 authorizes the recovery of up to 30 percent of the prevailing party s attorney s fees after trial and up to 20 percent of the prevailing party s attorney s fees if the case is resolved without trial. Id. at 82(b)(2). It also sets forth a set of factors that may be used to mitigate or enhance the attorney s fee awards. Id. at 82(b)(3). This rule applies equally to prevailing plaintiffs and defendants, including intervenors, in civil suits. See Alaska Ctr. for the Env t v. State, 940 P.2d 916, (Alaska 1997). Against that background, administrative and judicial appeals are governed by Appellate Rule 508(e) which provides that [a]ttorney's fees may be allowed in an amount to be determined by the court. Alaska R. App. P. 508(e). For the purpose of appeals governed by Rule 508(e), including appeals from administrative agency decisions, the Alaska Supreme Court has found that Rule 82 provides a reasonable guideline for determining fees even in cases where there has been no 25

34 Case: /30/2009 Page: 34 of 57 ID: DktEntry: 21-1 money judgment. See Carr Gottstein Properties v. State, 899 P.2d 136, 148 (Alaska 1995). In practice, the prevailing party, whether plaintiff or defendant, is awarded attorney s fees as a matter of course. While Rule 82 often limits recovery to a portion of the total incurred attorney s fees, the awards can be significant especially when the case involves industry-intervenors. Concerned about the harsh application of the loser pays rule, long ago the Alaska Supreme Court fashioned a common law public interest litigant exception. A litigant would fall under the exception if only a private party could be expected to bring the case, there were no underlying financial incentives, the case effectuated strong public policies, and, if favorably decided, the case would benefit numerous people. Southeast Alaska Conservation Council Inc., v. State, 665 P.2d 544, 553 (Alaska 1983) (overruled by HB 145; 2, ch. 86, SLA 2003). The public interest litigant exception, much like the rule under federal law, effectively shielded a losing public interest litigant who brought meritorious claims from paying the opposition s attorney s fees, but granted them full fees if they prevailed. See Anchorage v. McCabe, 568 P.2d 986, (Alaska 1977) (overruled by HB 145; 2, ch. 86, SLA 2003). In creating the public interest litigant rule, the Alaska Supreme Court looked to the United States Supreme Court decision in Newman. Id. at 990; see Newman, 390 U.S. at 402 (observing that [i]f successful plaintiffs were routinely forced to 26

35 Case: /30/2009 Page: 35 of 57 ID: DktEntry: 21-1 bear their own attorney s fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the court. ). Similar to the treatment of the Civil Rights Act fee-shifting provision, the court stated that the public interest litigant exception was designed to encourage plaintiffs to bring issues of public interest to the courts and remove the deterrent effect associated with the financial burden of a lawsuit and the fear of incurring the expense of the opposition s fees under Alaska s loser pays rule if unsuccessful. Id. For decades, the public interest litigant exception encouraged citizen involvement and enforcement of Alaska s laws. In a complete reversal of course, in 2003 the Alaska Legislature passed HB 145, which overruled the common law public interest litigant exception for all applicable cases other than those that involve constitutional claims. While the law was eventually crafted to uniformly eliminate the exception across legal disciplines, the uncontroverted intent behind the law was to curtail the involvement of public interest litigants in challenging natural resource decisions like those that could be brought under a state NPDES program. In fact, it was introduced by then- Governor Frank Murkowski specifically to narrowly restrict the class of persons who could challenge decisions of natural resource agencies. Substantiated by the Governor s transmittal letter the bill was introduced to: provide[] for specific rules that govern the award of attorney s fees to or against certain public interest litigants. The bill does so by specifically 27

36 Case: /30/2009 Page: 36 of 57 ID: DktEntry: 21-1 requiring that any award of attorney s fees to or against public interest litigants for cases contesting decisions by the Department of Environmental Conservation, the Department of Fish and Game, or the Department of Natural Resources making a coastal consistency determination, adopting regulations, or in which the public had an opportunity to comment to the agency and seek administrative review before the agency, be governed by Alaska Rule of Civil Procedure 82. State of Alaska, House Journal for the 23 rd Legislature at (March 3, 2003). Similarly, as reflected throughout the legislative debates about the bill, was the understanding that HB 145 was introduced to target groups and citizens concerned about agency decisions that impacted the environment. Although the State claimed it introduced the bill because the public interest litigant exception was being abused in the contest of natural resource litigation, the evidence presented at the House Judiciary Committee debate indicated otherwise. In discussing the effect of the bill, Representative Gara cautioned: Our job is to protect the public, but this... [bill protects] the government and it does so in an irresponsible way. I see a trend, this year, to closing the doors to public access. This is one example of where we re closing the doors. We can demagogue this issue and talk about frivolous environmental lawsuits, but we had [Legislative Legal and Research Services] do some work for us, and they found [that] over the last 10 years, in this environmental area that we re trying to regulate [via] this bill, only 19 of these public interest litigant cases have been filed. [And] 17 of them were found to be cases where the plaintiff was right, and the plaintiffs weren t just environmental groups, they were fishermen, they were subsistence users, [and] they were Native Alaskans. State of Alaska 23 rd Legislature, House Judiciary Standing Committee Debate at 69 (May 7, 2003). 28