Northwest Env. Def. v. Brown , 728 F.3d 1085 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST ENVIRONMENTAL No. 07-35266
DEFENSE CENTER, an Oregon non-
profit corporation, D.C. No.
Plaintiff-Appellant, CV-06-01270-
GMK
AMERICAN FOREST & PAPER
ASSOCIATION; OREGON FOREST
INDUSTRY COUNCIL, ORDER
Intervenors,
v.
DOUG DECKER, Oregon State
Forester, in his official capacity;
STEPHEN HOBBS; BARBARA CRAIG;
DIANE SNYDER; LARRY GIUSTINA;
WILLIAM HEFFERNAN; WILLIAM
HUTCHISON; JENNIFER PHILLIPPI,
(members of the Oregon Board of
Forestry, in their official capacities);
HAMPTON TREE FARMS, INC., an
Oregon domestic business
corporation; STIMSON LUMBER
COMPANY, an Oregon domestic
business corporation; GEORGIA-
PACIFIC WEST INC., an Oregon
domestic business corporation;
2 NORTHWEST ENVTL. DEF. CTR. V. DECKER
SWANSON GROUP, INC., an Oregon
domestic business corporation;
TILLAMOOK COUNTY,
Defendants-Appellees.
On Remand From The United States Supreme Court
Filed August 30, 2013
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Charles R. Breyer, District Judge.*
ORDER
In Northwest Environmental Defense Center v. Brown,
640 F.3d 1063 (9th Cir. 2011), we reversed the decision of
the district court dismissing plaintiff’s suit brought under the
Clean Water Act. While our decision was awaiting review by
the United States Supreme Court, the Environmental
Protection Agency amended the relevant regulation. See
Revisions to Stormwater Regulations, 77 Fed. Reg. 72,970(Dec. 7, 2012). The Supreme Court reversed our decision,
which had been based on the preamendment regulation. It
did not address the amended regulation. The Court held,
“The preamendment version of the Industrial Stormwater
Rule, as permissibly construed by the agency, exempts
discharges of channeled stormwater runoff from logging
*
The Honorable Charles R. Breyer, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
NORTHWEST ENVTL. DEF. CTR. V. DECKER 3
roads from the NPDES permitting scheme.” Decker v. Nw.
Envtl. Def. Ctr., 133 S. Ct. 1326, 1338 (2013).
The Court left intact our holding that “when stormwater
runoff is collected in a system of ditches, culverts, and
channels and is then discharged into a stream or river, there
is a ‘discernable, confined and discrete conveyance’ of
pollutants, and there is therefore a discharge from a point
source” within the meaning of the Clean Water Act’s basic
definition of a point source in 33 U.S.C. § 1362(14). Brown,
640 F.3d at 1070–71; see Decker, 133 S. Ct. at 1338(“[T]here is no need to reach petitioners’ alternative argument
that the conveyances in question are not ‘pipe[s], ditch[es],
channel[s], tunnel[s], conduit[s],’ or any other type of point
source within the Act’s definition of the term. § 1362(14).”
(some alterations in original)); Misic v. Bldg. Serv. Emps.
Health & Welfare Trust, 789 F.2d 1374, 1379 (9th Cir. 1986)
(holding that when “[t]he Supreme Court reverse[s] this
court, but on other grounds,” it leaves unchanged the law of
this circuit on issues not reached by the Court).
The Court remanded for “proceedings consistent with [its]
opinion.” Decker, 133 S. Ct. at 1338. We vacate the decision
of the district court and remand to that court for proceedings
consistent with the Supreme Court’s opinion.