Washington State Dairy Fed. v. Usepa ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 14 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON STATE DAIRY No. 20-70331
FEDERATION; et al.,
EPA No. SDWA-10-2013-0080
Petitioners,
v. MEMORANDUM*
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER, Acting
Administrator of the United States
Environmental Protection Agency,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted May 6, 2021**
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
Petitioners, the Washington State Dairy Federation (WSDF), Adam Dolsen,
Cow Palace, LLC, and the Dolsen Companies, challenge an Administrative Order
of Consent (AOC) and an underlying report (the Report) issued by the EPA in
2013 pursuant to its emergency authority under the Safe Drinking Water Act
(SDWA), 42 U.S.C. § 300i(a). The Report and AOC concern nitrate
contamination in the groundwater of the Yakima Valley in central Washington
State. Petitioners argue the EPA fraudulently induced a group of dairies to agree to
the AOC by misrepresenting the Report as “influential science.” Petitioners also
contend the conclusions reached in the Report and AOC are “arbitrary and
capricious” for purposes of the Administrative Procedure Act, 5 U.S.C. § 706(2).
We have jurisdiction pursuant to 42 U.S.C. § 300j-7. We dismiss the petition as
untimely.1
1. As a threshold matter, the EPA argues WSDF lacks standing. An
organization may commence an action in federal court based on injuries to itself or
to its members. Am. Unites for Kids v. Rousseau, 985 F.3d 1075, 1096 (9th Cir.
2021) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)). In order for an
organization to have standing to sue on behalf of its members, it must establish: (1)
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The parties are familiar with the facts and we recite only those
necessary to decide the issues on appeal.
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its members would otherwise have standing to sue in their own right; (2) the
interests it seeks to protect are germane to the organization’s purpose; and (3)
neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit. Id. (citing Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)).
The addendum to petitioners’ reply brief contains a declaration by the
Director of the WSDF, Daniel Wood, that addresses WSDF’s interest in this
litigation. Wood averred that WSDF’s mission statement is to “develop[] and
promote[] initiatives directed toward the financial strength, political support, and
public awareness of [the dairy] industry to achieve a successful business climate
for dairy farmers in Washington State.” Wood further asserted that some of the
parties to the AOC are members of the WSDF and were injured by the obligations
imposed by the AOC. We conclude petitioners have alleged facts sufficient to
show that WSDF’s members would have standing in their own right, the interest in
preventing burdensome restrictions on the dairy industry is germane to the
WSDF’s purpose, and the participation of the individual members is not required.
See id.
2. The EPA contends the petition is time barred because it was filed years
after the date the Report was issued and the AOC became effective. The SDWA
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provides that a petition for review “shall be filed within the 45-day period
beginning on the date of the promulgation of the regulation or any other final
Agency action with respect to which review is sought or on the date of the
determination with respect to which review is sought.” 42 U.S.C. § 300j-7(a)(2).
A petition “may be filed after the expiration of such 45-day period if the petition is
based solely on grounds arising after the expiration of such period.” Id.
The Report and AOC were issued in 2013. The petition for review was filed
in February 2020. To explain this seven year delay, petitioners rely on the
affidavit of Adam Dolsen, the owner of one of the dairies that entered into the
AOC. Dolsen claims the EPA misrepresented the Report as “influential science”
during the negotiations leading up to the consummation of the AOC. Dolsen also
avers that petitioners were first informed that the EPA did not consider the Report
to be “influential science” at a February 2019 meeting. Even assuming the 45-day
time limit is not jurisdictional and the period between 2013 and the February 2019
meeting is subject to equitable tolling, the petition was filed more than 45 days
after petitioners allege they discovered the facts on which their petition is based.
3. Petitioners argue that their “petition is based solely on grounds arising
after the expiration of” the original 45-day period and contend the SDWA does not
impose a limitations period for petitions for review that are based on new
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information. In the alternative, they urge us to “borrow” the six year statute of
limitations applicable to APA claims. See 28 U.S.C. § 2401(a).
When no statute of limitations is expressly applicable to a federal statute,
“we do not ordinarily assume that Congress intended that there be no time limit on
actions at all.” DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 158
(1983). Instead, we typically “borrow” a limitations period from an analogous
state cause of action and apply it to the federal claim. Hoang v. Bank of Am., N.A.,
910 F.3d 1096, 1101 (9th Cir. 2018) (quoting Oneida Cty., N.Y. v. Oneida Indian
Nation of New York State, 470 U.S. 226, 240 (1985)). We may “decline to borrow
a state statute of limitations only when a rule from elsewhere in federal law clearly
provides a closer analogy than available state statutes, and when the federal
policies at stake and the practicalities of litigation make that rule a significantly
more appropriate vehicle for interstitial lawmaking.” Reed v. United Transp.
Union, 488 U.S. 319, 324 (1989) (internal quotation marks omitted).
Here, the most analogous claim to a SDWA claim based on new information
is a claim brought pursuant to the SDWA based on information available at the
time of the agency action. See 42 U.S.C. § 300j-7(a). Our conclusion is supported
by the Ninth Circuit’s decision in Chevron U.S.A., Inc. v. U.S.E.P.A., 908 F.2d
468, 470 (9th Cir. 1990). There, petitioners sought review of a final order the EPA
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issued pursuant to the Clean Water Act (CWA). Id. The relevant CWA provision
governing judicial review provided an application for review “shall be made within
ninety days from the date of such determination, approval, promulgation, issuance
or denial, or after such date only if such application is based solely on grounds
which arose after such ninetieth day.” Id. at 469 (quoting 33 U.S.C. § 1369(b)(1))
(emphasis omitted).
In Chevron U.S.A., we concluded that the “most analogous federal statute of
limitations is the one contained in the [CWA] itself, but expressly made applicable
only to suits not based on new information.” Id. at 470. Although we did not
definitively decide the issue in Chevron U.S.A., we indicated that “[w]ere we to
apply federal law in determining the applicable statute of limitations, we would
borrow [the CWA’s] 90–day limit.” Id.Accordingly, even if the petition “is based solely on grounds arising after”
the initial 45 days described in the SDWA, 42 U.S.C. § 300j-7(a), petitioners had
45 days to bring a petition for review after they became aware of new grounds to
challenge the Report and AOC. As explained, petitioners assert that they were
alerted that the EPA did not consider the Report an “influential scientific”
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document in February 2019. Because petitioners did not file a petition for review
until a year later, their petition is time-barred.2
PETITION DISMISSED
2
Petitioners’ motions to supplement the record on appeal, ECF 32 and
55, are DENIED as moot.
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