The Rattlesnake Coalition v. U.S. Environmental Protection Agency, et al.

The Rattlesnake Coalition ("The Coalition") appeals the
district court's dismissal for lack of subject matter jurisdiction
and lack of standing of its action against the United States
Environmental Protection Agency ("the EPA"), the Administrator
of the EPA, and the City of Missoula ("Missoula"). The
Coalition brought suit under the National Environmental Policy
Act ("NEPA"), 42 U.S.C. § 4322, seeking injunctive,
declaratory, and other relief related to the preparation of Environmental
Assessments ("EAs") and Environmental Impact
Statements ("EISs") prior to implementation of the Missoula
RATTLESNAKE COALITION v. U.S. EPA 16091
Wastewater Facilities Plan Update ("MWFPU"). The Coalition
argues that the district court erred by evaluating its complaint
as two separate NEPA claims relating to two
constituent projects of the MWFPU, and thereby concluding
that the MWFPU itself was not a single, major federal action
subject to NEPA regulations. We have jurisdiction under 28
U.S.C. § 1291, and we affirm the district court.

I

In the 1980s Missoula planned and made many improvements
to its wastewater treatment and collection system. In
1995, Missoula created the Wastewater Advisory Group, consisting
of representatives from city and county departments, to
lead the efforts to update the 1984 wastewater treatment plan.

In 1999, Missoula published the MWFPU, which identified
improvements necessary over a fifty-year period and suggested
the implementation of several projects costing more
than $88 million. MWFPU's goals included developing plans
for wastewater treatment to protect the Clark Fork River and
for serving unsewered areas with a wastewater collection and
treatment system. Federal funds were not used in the creation
of MWFPU.

In 1998, Missoula applied for a grant of $5 million from the
EPA to support completion of the wastewater treatment plant
upgrade ("WTPU"), a constituent project of MWFPU. The
EPA awarded the grant on September 21, 1998, subject to the
EPA's NEPA review. The NEPA review consisted first of the
EPA's adoption of an EA prepared by the Montana Department
of Environmental Quality ("DEQ") to assess the environmental
impact of the projects identified in MWFPU. Also,
on June 6, 2000, the EPA signed a Finding of No Significant
Impact ("FONSI") for MWFPU, which it published in the
Missoulian newspaper on June 18, 2000. The EPA received
no significant comments regarding the FONSI, and on July
31, 2000, the EPA notified Missoula of its final approval of
MWFPU for purposes of the $5 million grant.

From November 29, 2000 to September 8, 2003, the EPA
dispensed all of the $5 million grant. Missoula completed the
WTPU in October 2004, expending the entirety of the federal
grant in the completion of the project.
In 2004, the United States Congress appropriated to the
EPA $500,000 earmarked for Missoula's Rattlesnake Sewer
Project ("RSP"). On May 6, 2004, the EPA regional office
advised Montana DEQ that the EPA would undertake a
NEPA review specific to the RSP. On July 27, 2004, Missoula
applied to the EPA for a grant of the money from the
2004 appropriation.

On May 7, 2004, the Coalition filed a complaint against the
EPA and Missoula alleging that the EPA should have prepared
an EIS on both the WTPU and the RSP. The Coalition
sought declaratory, injunctive and other relief against the EPA
and Missoula to prevent Missoula from taking any action
related to the planned construction of the RSP until the EPA
complied with NEPA.

Both the EPA and Missoula filed Federal Rule of Civil Procedure
12(b)(1) motions to dismiss for lack of subject matter
jurisdiction. The district court granted both defendants'
motions, concluding that Missoula's MWFPU was not a
major federal action triggering NEPA's application. The district
court interpreted the Coalition's complaint as alleging
two separate NEPA violations: one relating to the WTPU
grant and one relating to the application for RSP funding.
The district court concluded that the Coalition did not have
constitutional standing with regard to the $5 million grant to
Missoula in 1998 for the WTPU, concluding that any harm it
suffered was not redressable because the upgrades were complete
and the federal funds were expended. As for the 2004
RSP appropriation, the district court ruled that it lacked subject
matter jurisdiction because the EPA had not taken a final
agency action as required to trigger application of NEPA.

The district court also concluded that it lacked subject matter
jurisdiction to hear the Coalition's claims against Missoula.
The district court based its dismissal on the fact that
Missoula, as a non-federal actor, was not subject to the
requirements of NEPA. The district court further held that the
Coalition lacked standing to bring the action because Missoula
could finance the construction of the RSP solely with
state funds and avoid NEPA requirements altogether.
On September 30, 2005, the district court filed an order dismissing
the case against both Missoula and the United States
for lack of standing and lack of subject matter jurisdiction.
The Coalition timely appealed.

II

We review de novo a district court's dismissal for lack of
subject matter jurisdiction. Luong v. Circuit City Stores, Inc.,
368 F.3d 1109, 1111 n.2 (9th Cir. 2004). The district court's
factual findings relevant to its determination of lack of subject
matter jurisdiction, however, are reviewed for clear error.
United States v. Peninsula Communications, Inc., 287 F.3d
832, 836 (9th Cir. 2002). We also review de novo a district
court's determination of a party's standing to bring suit.
Buono v. Norton, 371 F.3d 543, 546 (9th Cir. 2004).

III

Preliminarily, the United States argues that the Coalition
waived its ability to oppose the district court's rulings by failing
in its opening brief to challenge the district court's determination
that (1) the Coalition lacked standing because any
injury it suffered from the WTPU is not redressable, and (2)
the district court lacked jurisdiction over disposition of the
claim regarding the RSP because there has been no final
agency action by the EPA. We reject this argument because
the Coalition challenged both of the district court's findings
in its opening brief.

The Federal Rules of Appellate Procedure require that a
brief contain the "appellant's contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies . . . ." Fed. R. App. P.
28(a)(9)(A). Issues raised in an opening brief but not supported
by argument are considered abandoned. Acosta-Huerta
v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992); Int'l Union of
Bricklayers & Allied Craftsman Local Union No. 20, AFLCIO
v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.
1985) ("[W]e will not ordinarily consider matters on appeal
that are not specifically and distinctly raised and argued in the
appellant's opening brief.").

[1] The Coalition's opening brief challenges both of the
district court's rulings in the body of its opening brief. The
Coalition's discussion of what constitutes a major federal
action under NEPA and its argument that the district court
should have evaluated the MWFPU as a single, major federal
action instead of separately evaluating the WTPU and the
RSP, constitute a challenge to the district court's dismissal for
lack of standing. The Coalition also contends in its opening
brief that the EPA waived sovereign immunity under the
Administrative Procedure Act ("APA") so that NEPA provides
jurisdiction for this action.

[2] The Coalition's opening brief mounts an attack on both
of the district court's rulings. We therefore reject the waiver
argument presented by the United States and proceed to analyze
the Coalition's appeal.

IV

We first address the Coalition's claim that the district court
erred in evaluating the complaint as containing two separate
NEPA claims involving two distinct projects. The Coalition
argues that the district court should have evaluated the
MWFPU to determine if it, and not its constituent projects,
was a single, major federal action. The Coalition contends
that had the district court found MWFPU to be a major federal
action, it would have found that the Coalition's injury
was redressable in the form of adequate environmental review
of the uncompleted portion of the MWFPU in accordance
with NEPA and a stay of further construction of the project
until that review is completed. The Coalition's argument fails,
however, because there is insufficient federal control over
MWFPU to make it a major federal action under NEPA.
[3] To trigger the application of NEPA, an action must be
"federal." 42 U.S.C. § 4332(2)(C); see also 40 C.F.R.
§ 1508.18(a) ("Actions include new and continuing activities,
including projects and programs entirely or partly financed,
assisted, conducted, regulated, or approved by federal agencies
. . . .") (emphasis added). While "[t]here are no clear
standards for defining the point at which federal participation
transforms a state or local project into major federal action[,].
. . . ‘[m]arginal' federal action will not render otherwise local
action federal." Almond Hill Sch. v. U.S. Dep't of Agric., 768
F.2d 1030, 1039 (9th Cir. 1985). To determine whether a state
development plan constitutes a major federal action under
NEPA, we look to "the nature of the federal funds used and
the extent of federal involvement." Sierra Club v. Penfold,
857 F.2d 1307, 1314 (9th Cir. 1988). "While significant federal
funding can turn what would otherwise be a state or local
project into a major federal action, consideration must be
given to a great disparity in the expenditures forecast for the
[local] and federal portions of the entire program." Ka
Makani ‘O Kohala Ohana Inc. v. Dep't of Water Supply, 295
F.3d 955, 960 (9th Cir. 2002) (internal quotation marks and
citations omitted). Federal decisionmakers must also retain
"power, authority, or control over" the state project. Id. at
960-61 ("[This authority] must be more than the power to
give nonbinding advice to the nonfederal actor . . . the federal
agency must possess actual power to control the nonfederal
activity") (quoting Village of Los Ranchos de Albuquerque v.
Barnhart, 906 F.2d 1477, 1482 (10th Cir. 1990) (internal quotation
marks and citations omitted)).

[4] The creation of MWFPU was not a federal action. No
federal funds were used in MWFPU's creation, and it is
uncontested that the Wastewater Advisory Group, solely comprised
of representatives from city and county departments,
led efforts to develop the MWFPU. The creation of MWFPU
was not a major federal action and does not establish subject
matter jurisdiction in this case.

[5] Nor was the implementation of MWFPU a major federal
action. We have found that federal funding amounting to
just 10% of total estimated expenditures does not federalize
a project for purposes of NEPA application. Friends of the
Earth, Inc. v. Coleman, 518 F.2d 323, 329 (9th Cir. 1975).
Missoula officials estimated that the cost to complete all of
the planned improvements detailed in the MWFPU would
total over $88 million. To date, only $5 million in federal
funds have been awarded by the EPA. That $5 million federal
grant was used in the construction of the WTPU, a project that
cost just under $15 million to complete. While Congress has
also earmarked $500,000 for the RSP, the EPA has yet to
grant those funds to Missoula. As the district court found, the
total federal funds awarded to Missoula comprises just under
6% of the estimated implementation budget. The Coalition
stresses that the 6% calculation misrepresents the financial
involvement of the United States because federal funds will
no doubt be awarded in the future for the purpose of implementing
other projects under the MWFPU. However, we cannot
base our evaluation of the federal nature of the MWFPU
on speculation about the future federal funding of its constituent
projects. If Missoula determines to seek federal funding,
it must apply to the EPA for federal funding for each constituent
project of the MWFPU, and we cannot predict Missoula's
action, or if funds are sought whether the EPA will fund these
future projects, and, if so, to what degree. The small proportion
of federal funding currently supporting the projects of the
MWFPU does not federalize the implementation of the entire
MWFPU.

[6] Moreover, a local plan does not become a major federal
action subject to NEPA regulations merely upon its approval
by a federal agency. See Friends of the Earth, 518 F.2d at
328-29. The development and improvement of sewage treatment
by a municipality is intrinsically a local matter under the
responsibility of local government. NEPA does not apply to
an agency's approval of a local government's development
program comprised of "distinct projects with separate functions
and independent justifications," even if some of the constituent
projects are entirely funded by the federal
government. See id. The United States must maintain decisionmaking
authority over the local plan in order for it to
become a major federal action. See Ka Makani, 295 F.3d at
960-61. The Coalition has neither demonstrated that the
WTPU is inextricably linked to the other projects proposed by
MWFPU nor shown that the United States maintains control
over the implementation of MWFPU.1 Absent a showing of
federal control of MWFPU, the EPA's approval of MWFPU
and subsequent grant of $5 million to support the WTPU does
not elevate the entire MWFPU to the status of a major federal
action. The district court correctly evaluated the Coalition's
complaint as containing two distinct NEPA claims.

V

Viewing the Coalition's complaint as two distinct NEPA
claims - one involving the WTPU and the other involving the
RSP - we consider whether the district court properly dismissed
both claims for lack of standing and lack of subject
matter jurisdiction.

A

With regard to the WTPU claim, the district court concluded
that the Coalition lacked standing to bring suit in federal
court. We affirm the district court's dismissal for lack of
standing because any injury suffered by the Coalition due to
the EPA's failure to follow NEPA procedures could not be
remedied when the complaint was filed.

[7] To establish standing to sue in federal court, a plaintiff
must show that (1) the plaintiff has suffered an injury in fact,
(2) the injury is traceable to the defendant, and (3) a favorable
decision will redress the injury. Bennett v. Spear, 520 U.S.
154, 167 (1997). Fatal to the Coalition's WTPU claim is the
third prong of the standing analysis: the Coalition cannot
show that there is a genuine likelihood that its injury will be
redressed if it succeeds on the merits. See id. The injuries
allegedly suffered by the Coalition include health problems
and a decrease in the enjoyment and value of their property.
Missoula completed construction of the WTPU in October of
2004 and fully expended the $5 million EPA grant in the process.
The Coalition's injuries cannot be redressed now that the
WTPU is complete and the federal funds are expended. See
Gonzales v. Gorsuch, 688 F.2d 1263, 1268 (9th Cir. 1982)
(concluding that once the project was completed and the federal
funds expended, the court could not bring about the water
pollution planning sought by the plaintiff); see also Friends
of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1379 (9th Cir.
1978) ("Where the activities sought to be enjoined have
already occurred, and the appellate courts cannot undo what
has already been done, the action is moot."). Requiring the
EPA to produce an EA and EIS with regard to the WTPU
would not redress any personal health or property injuries suffered
by the Coalition members as a result of the construction.
We hold that the Coalition lacks standing to bring its WTPU
claim in federal court.

B

[8] With regard to the RSP claim, the district court concluded
that it lacked subject matter jurisdiction to adjudicate
the Coalition's claim. The United States must waive its sovereign
immunity before a federal court may adjudicate a claim
brought against a federal agency. United States v. Mitchell,
445 U.S. 535, 538 (1980). Here, because NEPA does not subject
the EPA to suit, see 42 U.S.C. § 4321 et seq., the Coalition
has to establish waiver of immunity under the
Administrative Procedure Act ("APA"). See 5 U.S.C. §§ 702,
704. The APA permits a citizen suit against an agency when
an individual has suffered "a legal wrong because of agency
action" or has been "adversely affected or aggrieved by
agency action within the meaning of a relevant statute." 5
U.S.C. § 702. When a claim is brought pursuant to the APA,
the agency action must be "final agency action for which
there is no other adequate remedy in court." 5 U.S.C. § 704.
An agency action is "final" when (1) the agency reaches the
"consummation" of its decisionmaking process and (2) the
action determines the "rights and obligations" of the parties or
is one from which "legal consequences will flow." Bennett,
520 U.S. at 177-78.

The district court determined that Congress's appropriation
of $500,000 for the completion of the RSP did not constitute
final agency action. The district court reasoned that, regardless
of the congressional appropriation and earmark, the
Coalition's claim would not be ripe until after the EPA
awards the money to Missoula.

[9] In its opening brief, the Coalition appeared to challenge
the district court's dismissal for lack of subject matter jurisdiction
by arguing that where Congress has earmarked federal
funds for a particular project via an appropriations act, the
funds should be considered dispersed and qualify as a final
agency action under the APA. This contention is not supported
by administrative law. First, Congress is excluded from
the APA's definition of an agency. 5 U.S.C. § 701(b)(1)(a)
(" ‘agency' means each authority of the Government of the
United States . . . , but does not include the Congress . . . .").
Therefore, Congress's appropriation of $500,000 to the EPA
earmarked for the RSP does not constitute a final agency
action under the APA. Second, the congressional appropriation
to the EPA of funds for a particular project does not constitute
a final agency action by the EPA until the EPA has
reviewed a grant application and decided to disburse the
funds. See Karst Envtl. Educ. & Prot., Inc. v. U.S. Envtl. Prot.
Agency, 403 F. Supp. 2d 74, 81 (D.D.C. 2005) (concluding
that there was no final agency action where HUD had yet to
consider and approve a grant application for disbursal of
appropriated funds because "the federal money is but an
expectancy that has not yet materialized") (citation and internal
quotation marks omitted), aff'd, No. 06-5059, 2007 U.S.
App. LEXIS 1943 (D.C. Cir. Jan. 30, 2007); Citizens Alert
Regarding the Env't v. U.S. Envtl. Prot. Agency, 259 F.Supp.
2d 9, 20 (D.D.C. 2003) ("The possibility that federal funding
will be provided in the future is not sufficient to federalize a
state project, even when such funding is likely.") (quoting
United States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563,
1573 (11th Cir. 1994)), aff'd, 102 F. App'x 167 (D.C. Cir.
2004). Even where, as here, Congress has specified the specific
project to which funds should be allocated, the EPA does
not take a final agency action until it completes its review of
the grant application and decides to disburse the appropriated
funds. Before disbursal of the funds, the EPA could decide to
issue an EA and a FONSI or an EIS. Absent final agency
action, there was no jurisdiction in the district court to review
the NEPA claim.

C

[10] The Coalition further argues that the EPA's issuance
of an EA and FONSI with regard to the MWFPU are final
agency actions for purposes of judicial review. We have held
that an agency's decision not to issue an EIS concludes the
agency's procedural inquiry into the environmental impact of
a proposed project and therefore constitutes a final agency
action, regardless of whether the agency has decided to fund
the project. Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317,
1319 (9th Cir. 1982). Had the Coalition established standing,
this argument would provide the district court with jurisdiction
to hear the WTPU claim, but it does not establish subject
matter jurisdiction with regard to the RSP claim. The EPA has
specifically declined to accept the EA of the MWFPU for the
RSP, and there is no indication in the record that the EPA has
subsequently adopted an EA for the RSP. As a result, the EPA
has not concluded its procedural inquiry into the environmental
impact of the RSP, and the district court properly held that
it lacked subject matter jurisdiction to hear the Coalition's
RSP claim.

D

[11] Finally, the Coalition argues that dismissal of its RSP
claim for lack of subject matter jurisdiction combined with
dismissal of its WTPU claim for lack of standing means that
in a case involving a major federal action, claimants will be
barred from bringing suit against the EPA for violations of the
procedural requirements of NEPA: On the one hand, if the
claimants sue before the agency has made a final decision to
disburse the funds, the suit will be dismissed for lack of subject
matter jurisdiction. On the other hand, if filed after the
disbursement, the suit will be dismissed because no relief provided
by the court could redress the procedural violation.
While the window for such claims may be narrow, a claimant
can file suit and simultaneously seek a preliminary injunction
as soon as the federal agency makes a final decision to award
the grant but before the funds are entirely disbursed by the
federal agency. Here, for example, the EPA notified Missoula
of its decision to award the $5 million grant on September 21,
1998 and informed Missoula of its final approval of the
MWFPU for purposes of the grant on July 31, 2000, but did
not begin to disburse the funds until November 29, 2000 and
did not conclude disbursement until September 8, 2003, providing
ample time for a claimant to file suit under NEPA. The
APA applies to waive sovereign immunity only after final
agency action. 5 U.S.C. § 704. Before final agency action has
occurred, an action against the EPA for procedural violations
of NEPA is premature and a federal court lacks subject matter
jurisdiction to hear the claim.

VI

[12] The district court also dismissed the Coalition's action
against Missoula for lack of subject matter jurisdiction and
lack of standing, and the Coalition appeals that dismissal.2
"Usually, the federal government is the only proper defendant
in an action to compel compliance with NEPA." Laub, 342
F.3d at 1091-92 (citation and internal quotation marks omitted).
Where state and federal projects are not interrelated and
do not constitute a single federal action under NEPA, nonfederal
entities cannot be defendants in a NEPA suit. See id.
Because we have held that the MWFPU is not a major federal
action and the RSP is not a final agency action, Missoula is
not a proper defendant and the district court did not err in dismissing
the claims against Missoula for lack of subject matter
jurisdiction.

[13] Likewise, the district court properly dismissed the
claims against Missoula for lack of standing. NEPA requires
federal agencies to prepare an EIS when there are major federal
actions significantly affecting the quality of the human
environment. 42 U.S.C. § 4321 et seq. A local government
can prepare an EA, but the federal agency must adopt the EA
in order for it to qualify as an agency's environmental review
for purposes of NEPA. Id. Only the federal government, not
the local government, can adopt the EA and EIS that the
Coalition seeks as its relief. Therefore, no order issuing from
the district court in a claim against Missoula could grant the
relief requested by the Coalition: Missoula cannot issue an
EIS on behalf of the EPA.

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