FOR PUBLICATION
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; THE
CENTER FOR WATER ADVOCACY,
Petitioners,
EKWOK TRIBAL COUNCIL; NEW
No. 08-74872
STUYAHOK TRADITIONAL COUNCIL;
OPINION
PRINCE WILLIAM SOUNDKEEPER,
Intervenors,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; STEPHEN L.
JOHNSON, Administrator of the U.S.
Environmental Protection Agency,
Respondents,
STATE OF ALASKA,
Intervenor.
On Petition for Review of a Decision of the
United States Environmental Protection Agency
Argued and Submitted
July 28, 2010—Anchorage, Alaska
Filed November 4, 2010
18249
18250 AKIAK NATIVE COMMUNITY v. EPA
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Schroeder
AKIAK NATIVE COMMUNITY v. EPA 18253
COUNSEL
Emily Anderson and Victoria Clark (argued), Trustees for
Alaska, Anchorage, Alaska, for the petitioners and petitioner-
intervenors.
John C. Cruden and Kenneth C. Amaditz (argued), United
States Department of Justice, Washington, D.C., for the
respondents.
Daniel S. Sullivan and Cameron M. Leonard (argued), State
of Alaska, Fairbanks, Alaska, for the respondent-intervenor.
OPINION
CLIFTON, Circuit Judge:
Petitioner Akiak Native Community and other petitioners
and intervenors (collectively “Petitioners” or “Akiak”) seek
review of the approval by the United States Environmental
Protection Agency (“EPA”) of the State of Alaska’s applica-
tion to assume responsibility for administration of portions of
the National Pollutant Discharge Elimination System
(“NPDES”), pursuant to section 402(b) of the Clean Water
Act (“CWA”), 33 U.S.C. § 1342(b). Petitioners contend that
the EPA did not adequately ensure (1) that Alaska state law
will provide the same opportunities for judicial review of per-
mitting decisions as required by federal law, (2) that the State
has the necessary enforcement tools to abate permit viola-
tions, and (3) that subsistence resources will be protected as
mandated by the Alaskan National Interest Lands Conserva-
tion Act (“ANILCA”), 16 U.S.C. § 3101 et seq. We conclude
that the EPA’s decision to transfer authority to the State of
Alaska was not arbitrary or capricious. Accordingly, we deny
the petition for review.
18254 AKIAK NATIVE COMMUNITY v. EPA
I. Background
The NPDES program was established as part of the CWA
to regulate the discharge of pollutants into the navigable
waters of the United States. 33 U.S.C. § 1342. The EPA ini-
tially administered the NPDES permitting program in each
state, but the CWA expressly provides that permitting author-
ity shall be transferred to state officials upon a showing that
the state has met the specified criteria for transfer. Id.
§ 1342(b); see also id. § 1251(b) (“It is the policy of Congress
that the Stat[e] . . . implement the permit progra[m] under sec-
tio[n] 1342 . . . of this title.”). “If authority is transferred, then
state officials—-not the federal EPA—-have the primary
responsibility for reviewing and approving NPDES discharge
permits, albeit with continuing EPA oversight.” Nat’l Ass’n of
Home Builders v. Defenders of Wildlife (“Home Builders”),
551 U.S. 644, 650 (2007). As of this time, 46 states, including
Alaska, have been authorized to administer the NPDES pro-
gram. See U.S. Environmental Protection Agency, NPDES
State Program Status, http://cfpub.epa.gov/npdes/statestats.
cfm (last visited Oct. 26, 2010).
Section 402(b) of the CWA sets forth the approval process
and criteria by which the EPA must evaluate state program
applications. 33 U.S.C. § 1342(b); see also 40 C.F.R. § 123.1.
In its application, a state must submit “a full and complete
description of the program it proposes to establish and admin-
ister under State law.” 33 U.S.C. § 1342(b). A state must also
certify “that the laws of such State . . . provide adequate
authority to carry out the described program.” Id. The EPA
“shall approve” each state application “unless [the EPA]
determines that adequate authority does not exist” under State
law to perform nine specified categories of functions in con-
nection with the state’s administration of the NPDES pro-
gram. Id. § 1342(b)(1)-(9). “If the criteria are met, the transfer
must be approved.” Home Builders, 551 U.S. at 651.
Once a state’s program has been approved, permitting
authority is given to the state, but the EPA retains oversight
AKIAK NATIVE COMMUNITY v. EPA 18255
over the state program and it may object to any individual
permit if it does not comply with the requirements of the
CWA. 33 U.S.C. § 1342(d)(2)(B). Additionally, if a state is
not administering its permitting program in accordance with
the CWA, the EPA may withdraw its approval of the program
as a whole. Id. § 1342(c)(3).
The State of Alaska initially submitted an application to the
EPA in 2006 to administer a state program, referred to as the
Alaska Pollutant Discharge Elimination System (“APDES”).
The EPA deemed this application incomplete. The State
resubmitted its application on May 1, 2008, and the EPA, on
finding the application complete, held a 60-day notice and
comment period beginning on June 18, 2008. The EPA also
held three public hearings in Alaska. After receiving com-
ments, the EPA published a Response to Comments docu-
ment.
The EPA approved the State of Alaska’s application to
administer the APDES program on October 31, 2008, finding
the proposed program met all the requirements of section
402(b) of the CWA. The permitting program was delegated to
the State on November 7, 2008, with the State assuming con-
trol over the program in four phases beginning in 2008 and
ending in 2011.1
Akiak filed a timely petition for review. The State of
Alaska moved to intervene in support of the EPA and the
Ekwok Tribal Council and others moved to intervene in sup-
port of Petitioners. The motions to intervene were granted.
1
The State’s APDES program will not entirely replace the EPA. Under
the terms of the EPA’s approval, the federal agency will retain NPDES
permitting authority and primary enforcement responsibility for the bio-
solids program; facilities operating in the Denali National Park and Pre-
serve pursuant to Alaska Statehood Act Section 11; facilities discharging
in Indian Country as defined in 18 U.S.C. § 1151; facilities operating out-
side state waters (three miles offshore); and facilities with CWA section
301(h) waivers.
18256 AKIAK NATIVE COMMUNITY v. EPA
II. Discussion
Challenges to EPA actions under section 509(b) of the
CWA, 33 U.S.C. § 1369(b), are reviewed under the arbitrary
and capricious standard of the Administrative Procedure Act.
Am. Mining Cong. v. EPA, 965 F.2d 759, 763 (9th Cir. 1992).
“Review under the arbitrary and capricious standard is defer-
ential; we will not vacate an agency’s decision unless it has
relied on factors which Congress had not intended it to con-
sider, 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.” Home Builders, 551 U.S. at 658
(internal quotation marks omitted).
A. Judicial Review
[1] The CWA mandates that the EPA encourage “[p]ublic
participation in development, revision, and enforcement of
any regulation.” 33 U.S.C. § 1251(e). Before transferring the
NPDES program to a state, the CWA requires, as one of the
nine criteria a state must meet for transfer of the NPDES pro-
gram, that a 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.” Id.
§ 1342(b)(7). The implementing regulations regarding trans-
fer of the NPDES program specify that:
All states that administer or seek to administer a pro-
gram 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 participa-
tion in the permitting process. A State will meet this
standard if State law allows an opportunity for judi-
cial review that is the same as that available to obtain
judicial review in federal court of a federally-issued
AKIAK NATIVE COMMUNITY v. EPA 18257
NPDES permit (see § 509 of the Clean Water Act).
A State will not meet this standard if it narrowly
restricts the class of persons who may challenge the
approval or denial of permits (for example, if only
the permittee can obtain judicial review, if persons
must demonstrate injury to a pecuniary interest in
order to obtain judicial review, or if persons must
have a property interest in close proximity to a dis-
charge or surface waters in order to obtain judicial
review.)
40 C.F.R. § 123.30.2
Akiak and the EPA disagree over the meaning of this regu-
lation. Petitioners argue that the language sets forth two spe-
cific standards that stem from the general mandate to promote
public participation in the permitting process. They contend
that the regulation requires that a state program provide “an
opportunity for judicial review that is the same as that avail-
able to obtain judicial review under federal law,” and they
point to the regulation’s reference to section 509 of the CWA,
33 U.S.C. § 1369, to argue that a state must provide the fed-
eral standard for awards of attorney’s fees in public interest
suits before the NPDES program may be transferred.
The Supreme Court, in order to protect citizen involvement
in public interest suits, has established a federal fee-shifting
“dual standard” that directs courts to award attorney’s fees to
a prevailing plaintiff in normal circumstances, but only to a
prevailing defendant if the action was “frivolous, unreason-
2
Judicial review of permitting decisions is not discussed in section
402(b) of the CWA, the section of the statute providing the criteria by
which the EPA must evaluate a state’s program application. 33 U.S.C.
§ 1342(b). Judicial review was addressed in an amendment of the imple-
menting regulation for section 402(b) after the EPA became aware of
standing requirements in certain states that had the potential to inhibit citi-
zens’ access to judicial review of permit decisions. See 61 Fed. Reg.
20,972-74 (May 8, 1996).
18258 AKIAK NATIVE COMMUNITY v. EPA
able, or groundless, or [if the] plaintiff continued to litigate
after it clearly became so.” Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422 (1978). Under this standard, an
unsuccessful plaintiff who acted in good faith is generally not
at risk of having to pay the other side’s attorney’s fees. The
language of section 509 of the CWA does not specifically set
forth a dual standard for attorney’s fees, for it states that “the
court may award costs of litigation (including reasonable
attorney and expert witness fees) to any prevailing or substan-
tially prevailing party whenever it determines that such award
is appropriate.” 33 U.S.C. § 1369(b)(3). We have interpreted
section 509 to require the Christiansburg “dual standard,”
however. See Saint John’s Organic Farm v. Gem County
Mosquito Abatement Dist., 574 F.3d 1054, 1063-64, n.1 (9th
Cir. 2009). Thus an unsuccessful challenge under section 509
brought in federal court will ordinarily not result in a fee
award against the plaintiff who brought the challenge.
In contrast, Alaska has a “loser pays” rule, a system some-
times described as the “English rule,” to govern the award of
attorney’s fees for civil actions in state court. See Alaska Stat.
§ 09.60.010; Alaska R. Civ. P. 82(a). Petitioners argue that
the Alaska “loser pays” system of attorney fee-shifting does
not provide citizens the same opportunities for judicial review
as are available under federal law because public interest
plaintiffs will be deterred in at least some instances by the risk
of being liable for substantial sums under the “loser pays” rule
in state court.
[2] The EPA disagrees with Akiak’s interpretation of the
regulation, arguing that 40 C.F.R. § 123.30 establishes a gen-
eral standard for evaluating state programs with its language
calling for judicial review that is “sufficient to provide for,
encourage, and assist public participation in the permitting
process.” The EPA contends that the following two sentences
of the regulation, quoted above, identify state rules that are
defined as acceptable and unacceptable. The EPA interprets
these sentences to offer a safe harbor for what is permissible
AKIAK NATIVE COMMUNITY v. EPA 18259
(i.e., an opportunity for judicial review in the given state’s
court that is the same as that available in federal court) and
an explicit statement of something that is impermissible (a
narrow restriction on who may challenge the approval or
denial of permits). Between those extremes, according to the
EPA, is a range of possible state judicial review procedures
that are not identical to those in section 509 of the CWA, but
do not narrowly restrict the class of persons who may chal-
lenge permitting decisions. Under the EPA’s interpretation of
the regulation, providing an opportunity for judicial review
equal to that available in federal court is defined to be accept-
able, but is not necessarily required. If judicial review of a
permitting decision by the State is less than what would be
available in federal court, the EPA argues that the agency can
exercise its discretion in determining whether the state pro-
gram meets the general standard.
[3] The EPA’s interpretation is the more logical reading of
the regulation. The regulation says that a State program will
be acceptable if it is subject to judicial review equal to that
available to challenge a federal permit decision; it does not
say that a State program will not be acceptable if it is not.
Even if we concluded that the regulation were ambiguous, the
EPA’s interpretation of its own regulation is entitled to defer-
ence under the standard established in Auer v. Robbins, 519
U.S. 452, 461 (1997) (agency’s interpretation of its own regu-
lations is “controlling unless plainly erroneous or inconsistent
with the regulations” (internal quotation marks omitted)).
[4] The question that remains is whether the State of Alas-
ka’s program meets the general standard of ensuring it will
“provide for, encourage, and assist public participation in the
permitting process,” as required by 40 C.F.R. § 123.30. The
EPA decided that the State of Alaska’s proposed program,
though perhaps not subject to exactly the same opportunity
for judicial review that is available for a federally-issued per-
mit, still provides for meaningful public participation in the
permitting process. We conclude that the EPA’s determina-
18260 AKIAK NATIVE COMMUNITY v. EPA
tion was not arbitrary or capricious. Petitioners have not dem-
onstrated that there will be an inadequate opportunity for
public participation if the state assumes the responsibility for
the relevant portions of the NPDES program.
Petitioners’ challenge has focused on the potential impact
of Alaska’s unusual provisions regarding the award of attor-
ney’s fees. As already noted, Alaska has, generally speaking,
adopted a “loser pays” rule for attorney’s fees. Examined
closely, though, it turns out that Alaska law is not quite that
simple. Further, it is very difficult to say what impact the
application of Alaska law would actually have on public par-
ticipation and on the availability of judicial review if the State
is allowed to assume responsibility for the NPDES program.
Alaska law on this subject has been in flux.
Alaska Rule of Civil Procedure 82 establishes the fee-
shifting approach for state trial courts under which “the pre-
vailing party in a civil case shall be awarded attorney’s fees.”3
(Text continued on page 18262)
3
Rule 82 of the Alaska Rules of Civil Procedure provides:
(a) Allowance to Prevailing Party. Except as otherwise provided by law
or agreed to by the parties, the prevailing party in a civil case shall be
awarded attorney’s fees calculated under this rule.
(b) Amount of Award.
(1) The court shall adhere to the following schedule in fixing the award
of attorney’s fees to a party recovering a money judgment in a case:
Judgment
and, if
Awarded, Contested
Prejudgment Contested Without Non-
Interest With Trial Trial Contested
First $25,000 20% 18% 10%
Next $75,000 10% 8% 3%
Next $400,000 10% 6% 2%
Over $500,000 10% 2% 1%
AKIAK NATIVE COMMUNITY v. EPA 18261
(2) In cases in which the prevailing party recovers no money judgment,
the court shall award the prevailing party in a case which goes to trial 30
percent of the prevailing party’s reasonable actual attorney’s fees which
were necessarily incurred, and shall award the prevailing party in a case
resolved without trial 20 percent of its actual attorney’s fees which were
necessarily incurred. The actual fees shall include fees for legal work cus-
tomarily performed by an attorney but which was delegated to and per-
formed by an investigator, paralegal or law clerk.
(3) The court may vary an attorney’s fee award calculated under subpara-
graph (b)(1) or (2) of this rule if, upon consideration of the factors listed
below, the court determines a variation is warranted by:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys’ hourly rates and the num-
ber of hours expended;
(D) the reasonableness of the number of attorneys used;
(E) the attorneys’ efforts to minimize fees;
(F) the reasonableness of the claims and defenses pursued by
each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of work performed and
the significance of the matters at stake;
(I) the extent to which a given fee award may be so onerous to
the non-prevailing party that it would deter similarly situated liti-
gants from the voluntary use of the courts;
(J) the extent to which the fees incurred by the prevailing party
suggest that they had been influenced by considerations apart
from the case at bar, such as a desire to discourage claims by oth-
ers against the prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
If the court varies an award, the court shall explain the reasons for the
variation.
(4) Upon entry of judgment by default, the plaintiff may recover an award
calculated under subparagraph (b)(1) or its reasonable actual fees which
were necessarily incurred, whichever is less. Actual fees include fees for
18262 AKIAK NATIVE COMMUNITY v. EPA
However, Rule 82(b)(3) provides that the court may vary an
attorney’s fee award based upon eleven identified factors. Of
particular relevance to the current case are the factors listed
in subsection (I) “the extent to which a given fee award may
be so onerous to the non-prevailing party that it would deter
legal work performed by an investigator, paralegal, or law clerk, as pro-
vided in subparagraph (b)(2).
(c) Motions for Attorney’s Fees. A motion is required for an award of
attorney’s fees under this rule or pursuant to contract, statute, regulation,
or law. The motion must be filed within 10 days after the date shown in
the clerk’s certificate of distribution on the judgment as defined by Civil
Rule 58.1. Failure to move for attorney’s fees within 10 days, or such
additional time as the court may allow, shall be construed as a waiver of
the party’s right to recover attorney’s fees. A motion for attorney’s fees
in a default case must specify actual fees.
(d) Determination of Award. Attorney’s fees upon entry of judgment by
default may be determined by the clerk. In all other matters the court shall
determine attorney’s fees.
(e) Equitable Apportionment Under AS 09.17.080. In a case in which
damages are apportioned among the parties under AS 09.17.080, the fees
awarded to the plaintiff under (b)(1) of this rule must also be apportioned
among the parties according to their respective percentages of fault. If the
plaintiff did not assert a direct claim against a third-party defendant
brought into the action under Civil Rule 14(c), then
(1) the plaintiff is not entitled to recover the portion of the fee award
apportioned to that party; and
(2) the court shall award attorney’s fees between the third-party plaintiff
and the third-party defendant as follows:
(A) if no fault was apportioned to the third-party defendant, the
third-party defendant is entitled to recover attorney’s fees calcu-
lated under (b)(2) of this rule;
(B) if fault was apportioned to the third-party defendant, the
third-party plaintiff is entitled to recover under (b)(2) of this rule
30 or 20 percent of that party’s actual attorney’s fees incurred in
asserting the claim against the third-party defendant.
(f) Effect of Rule. The allowance of attorney’s fees by the court in confor-
mance with this rule shall not be construed as fixing the fees between
attorney and client.
AKIAK NATIVE COMMUNITY v. EPA 18263
similarly situated litigants from the voluntary use of the
courts,” and subsection (K) “other equitable factors deemed
relevant.”
For many years Alaska courts recognized a limited public
interest exception to Rule 82 which applied in cases where:
“(1) the case was designed to effectuate strong public poli-
cies; (2) numerous people would benefit if the litigant suc-
ceeded; (3) only a private party could be expected to bring the
suit; and (4) the litigant lacked sufficient economic incentive
to bring suit.” Matanuska Elec. Ass’n, Inc. v. Rewire the Bd.,
36 P.3d 685, 696 (Alaska 2001). This exception allowed an
award of full attorney’s fees for a prevailing public interest
plaintiff and denied an award of attorney’s fees to a prevailing
defendant if the public interest plaintiff litigated in good faith.
See Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977);
Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974).
In 2003, the Alaska Legislature enacted House Bill 145,
which barred courts from relying on the public interest litigant
exception and the four factors identified by the Alaska
Supreme Court and quoted above. See Alaska Stat.
§ 09.60.010(b); ch. 86, § 2, SLA 2003. The Alaska Supreme
Court upheld the validity of HB 145, concluding that it was
“valid insofar as it abrogates the public interest exception
developed by the decisions of this court.” State v. Native Vill.
of Nunapitchuk, 156 P.3d 389, 404 (Alaska 2007). The court
also acknowledged that “a limiting interpretation should be
given [to] Rule 82(b)(3)(K) relating to the use of ‘other equi-
table factors’ to vary a fee award . . . [such] that courts must
take care to avoid using this equitable power as an indirect
means of accomplishing what HB 145 has now disallowed.”
Id. at 405.
However, the court also noted that HB 145 did not modify
the text of Rule 82. Id. It stated that HB 145 “ma[de] no
change to subsection (b)(3)(I) [and] [t]his subsection contin-
ues to apply to all cases, without discriminating between those
18264 AKIAK NATIVE COMMUNITY v. EPA
brought for self-interested reasons and those intended to
effectuate public policies.” Id. at 406. The court concluded:
[A]lthough HB 145 abrogates, in part, the public
interest litigant exception, litigants advancing public
interest claims may still, on a case-by-case basis, be
shielded from awards of attorney’s fees under Rule
82(b)(3)(I) for much the same reason that we
accepted when we first adopted the exception in its
original protective form: awarding fees in public
interest cases may deter citizens from litigating ques-
tions of general public concern.
Id. (internal quotation marks and footnote omitted).
At this time, there is scant evidence of how, in practice,
attorney’s fees have been assessed in public interest cases fol-
lowing the passage of HB 145 and the Alaska Supreme
Court’s interpretation of the act in Nunapitchuk.
To further complicate the question before us, Rule 82 only
applies to trial courts in Alaska. Appeals from administrative
agencies—the form which challenges to permits issued by the
state would presumably take—are governed by Alaska Rule
of Appellate Procedure 508(e), which provides that
“[a]ttorney’s fees may be allowed in an amount to be deter-
mined by the court.”4 See Stalnaker v. Williams, 960 P.2d
590, 597 (Alaska 1998) (“A superior court hearing an appeal
from an administrative agency awards attorney’s fees under
4
Rule 508(e) of the Alaska Rules of Appellate Procedure provides, in
full:
(e) Attorney’s Fees. Attorney’s fees may be allowed in an amount to be
determined by the court. If such an allowance is made, the clerk shall issue
an appropriate order awarding fees at the same time that an opinion or an
order under Rule 214 is filed. If the court determines that an appeal or
cross-appeal is frivolous or that it has been brought simply for purposes
of delay, actual attorney’s fees may be awarded to the appellee or cross-
appellee.
AKIAK NATIVE COMMUNITY v. EPA 18265
Appellate Rule 508, not Civil Rule 82.”). Rule 508 allows
courts “broad discretion in awarding fees.” Miller v.
Matanuska-Susitna Borough, 54 P.3d 285, 293 (Alaska 2002).
The Alaska Supreme Court previously held that Rule 82 pro-
vided a guideline for appellate courts to determine a “reason-
able” award in cases where there has been no money
judgment, Carr-Gottstein Prop. v. State, 899 P.2d 136, 148
(Alaska 1995), but that was before the enactment of HB 145
and the Alaska Supreme Court’s interpretation of the act in
Nunapitchuk. We do not know what Alaska courts will do
about awarding fees for administrative appeals brought by
public interest groups in the future or, more specifically,
whether and to what extent HB 145 will have a deterrent
effect on public participation in the APDES permitting pro-
cess.
The State of Alaska did provide, as part of its application
to assume control over the NPDES program, a program
description in which it declared that it will not seek attorney’s
fees from permit challengers who pursue unsuccessful appeals
“unless the appeal was frivolous or brought simply for pur-
poses of delay.” The State can be held to that pledge.
The State’s pledge does not rule out the possibility of a fee
application by an intervenor in litigation. Say, for example,
that a permit issued by the State under the APDES program
was challenged in Alaska courts by some public interest
group, that the private party who obtained the permit inter-
vened in the action, and the court affirmed the issuance of the
permit without holding the challenge to be frivolous or inter-
posed solely for delay. The State has pledged not to seek fees
in such a circumstance, but that promise does not prevent the
intervening private party from doing so. If the court were to
award substantial fees to that party from the public interest
group, future public interest challenges could be deterred. We
have not, however, been presented with evidence that Alaska
courts have in the past awarded substantial sums in attorney’s
fees to prevailing third-party intervenors.
18266 AKIAK NATIVE COMMUNITY v. EPA
The State also declared in its program description that
“Rule 82(b)(3)(I) has particular relevance to consideration of
any potential attorneys’ fees award against litigants whose
good faith appeal of an APDES permit proves unsuccessful.”
In effect, the State sought to reassure the EPA that the threat
of fee awards against public interest permit challengers is not
substantial enough to conclude that the opportunity for judi-
cial review in Alaska courts would be effectively diminished.
[5] The EPA approved the APDES program as described
in the State’s application. Under the circumstances, although
there is some uncertainty about the possibility of future attor-
ney’s fee awards, we cannot conclude that the EPA’s decision
was arbitrary or capricious. It was not unreasonable to con-
clude, based on what was known to EPA when it approved the
application—or based on what we know now—that Alaska
provides “an opportunity for judicial review in State Court of
the final approval or denial of permits by the State that is suf-
ficient to provide for, encourage, and assist public participa-
tion in the permitting process.” 40 C.F.R. § 123.30.
We note, in particular, that in giving its approval, the EPA
did not sign a blank check. The APDES program is subject to
“continuing EPA oversight,” and the EPA may withdraw its
approval of the program should the EPA determine at any
point that the APDES program does not meet the standards
mandated in the CWA. See Home Builders, 551 U.S. at 650.
Indeed, the statute expressly directs that should the EPA
determine that “a State is not administering a program
approved under [the CWA], [the EPA] shall so notify the
State and, if appropriate corrective action is not taken within
a reasonable time, not to exceed ninety days, [the EPA] shall
withdraw approval of such program.” 33 U.S.C. § 1342(c)(3).
We assume that EPA will take this responsibility seriously.
B. Administrative Penalty Authority
As noted above, section 402(b) of the CWA requires, as
one of the nine criteria specified for the evaluation of a state’s
AKIAK NATIVE COMMUNITY v. EPA 18267
proposed program, that the EPA determine whether such sub-
mitted program has adequate 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); see also 40 C.F.R. § 123.27.
Petitioners argue that the EPA failed to ensure that the State
of Alaska had adequate enforcement tools to abate violations,
as required by the CWA. Petitioners point to the fact that state
officials lack the ability to assess civil penalties administra-
tively. See Alaska Stat. § 46.03.760(e). Indeed, the State must
initiate a legal proceeding to impose a civil penalty against a
permit violator. Id. In contrast, under the CWA the EPA may
assess civil penalties administratively without a court pro-
ceeding. 33 U.S.C. § 1319(g).
[6] There is no requirement in the CWA or its regulations
that state officials have the authority to impose an administra-
tive penalty, however. The language of the statute says noth-
ing about administrative penalties, and the regulations provide
that administrative assessment of penalties by a state are “not
mandatory [but] highly recommended.” 40 C.F.R. § 123.27(c)
(Note). Given that the regulation explicitly says that adminis-
trative assessments are “not mandatory,” the lack of authority
to impose administrative penalties cannot by itself require the
denial of the state’s application. Moreover, the EPA has iden-
tified two other “highly recommended” means of enforce-
ment: suing to recover costs related to remedial efforts and
suing for compensation for environmental damage, 40 C.F.R.
§ 123.27.(c) (Note), both of which are expressly permitted by
Alaska law. Alaska Stat. § 46.03.760. Since Alaska law
enables the State to sue permit violators, there is no reason to
conclude that Alaska lacks adequate enforcement remedies.
C. ANILCA
Petitioners also argue that the EPA failed to uphold the fed-
eral government’s duty under ANILCA to protect subsistence
18268 AKIAK NATIVE COMMUNITY v. EPA
resources in Alaska’s navigable waters. ANILCA was enacted
in 1980 with the “primary purpose . . . to complete the alloca-
tion of federal lands in the State of Alaska.” Amoco Prod. Co.
v. Vill. of Gambell, AK, 480 U.S. 531, 549 (1987). By assert-
ing control over federal public lands in Alaska, Congress
aimed to “provide the opportunity for rural residents engaged
in a subsistence way of life to continue to do so,” among other
purposes. 16 U.S.C. § 3101(c). The subsistence provisions of
ANILCA, id. §§ 3111-3126, establish an administrative
framework through which rural residents may be involved
with the management of wildlife on public lands. See id.
§ 3111.
[7] Section 810 of ANILCA establishes a procedure for
federal agencies to evaluate the effects of federal land use on
subsistence resources. Specifically, section 810 provides in
relevant part:
In determining whether to withdraw, reserve, lease,
or otherwise permit the use, occupancy, or disposi-
tion of public lands under any provision of law
authorizing such actions, the head of the Federal
agency having primary jurisdiction over such lands
or his designee shall evaluate the effect of such use,
occupancy, or disposition on subsistence uses and
needs, the availability of other lands for the purposes
sought to be achieved, and other alternatives which
would reduce or eliminate the use, occupancy, or
disposition of public lands needed for subsistence
purposes.
16 U.S.C. § 3120(a). Before performing any activity covered
by section 810(a), the federal agency must provide notice and
a hearing and must determine that “(A) such a significant
restriction of subsistence uses is necessary, consistent with
sound management principles for the utilization of the public
lands, (B) the proposed activity will involve the minimal
amount of public lands necessary to accomplish the purposes
AKIAK NATIVE COMMUNITY v. EPA 18269
of such use, occupancy, or other disposition, and (C) reason-
able steps will be taken to minimize adverse impacts upon
subsistence uses and resources resulting from such actions.”
Id. § 3120(a)(3).
The Supreme Court’s recent decision in Home Builders
provides guidance as to whether the EPA’s transfer of the
NPDES program to the State of Alaska triggers the require-
ment of a subsistence evaluation under ANILCA. In Home
Builders, public interest groups challenged the EPA’s transfer
of the NPDES program to the State of Arizona, arguing that
the EPA failed to consider the effects such transfer would
have on endangered and threatened species under section 7(a)
of the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a).
551 U.S. at 649. The Supreme Court held that requiring the
EPA to comply with section 7(a) of the ESA would place the
CWA and the ESA in conflict, for it would add a tenth criteria
to the nine established criteria a state program must meet for
transfer approval under section 402(b) of the CWA, 33 U.S.C.
§ 1342(b). Id. at 663-64. The Court noted that “§ 402(b) does
not just set forth minimum requirements for the transfer of
permitting authority; it affirmatively mandates that the trans-
fer ‘shall’ be approved if the specified criteria are met.” Id. at
663. The Court concluded that requiring compliance with sec-
tion 7(a) would “effectively repeal § 402(b)’s statutory man-
date by engrafting a tenth criterion onto the CWA.” Id.
[8] Requiring the EPA to consider section 810 of ANILCA
would also add a tenth criterion to the CWA’s requirements
and therefore alter section 402(b)’s statutory command. As
the Court states in Home Builders, “[w]hile a later enacted
statute . . . can sometimes operate to amend or even repeal an
earlier statutory provision (such as the CWA), repeals by
implication are not favored and will not be presumed unless
the intention of the legislature to repeal is clear and manifest.”
Id. at 662 (internal quotation marks omitted). The EPA’s
transfer of the NPDES program to the State of Alaska there-
fore does not trigger a subsistence evaluation under ANILCA.
18270 AKIAK NATIVE COMMUNITY v. EPA
Akiak argues that the CWA should not be interpreted to
repeal ANILCA’s subsistence protection mandates because
CWA is a statute of general application and ANILCA is a
specific statute. See Morton v. Mancari, 417 U.S. 535, 550-51
(1974) (“Where there is no clear intention otherwise, a spe-
cific statute will not be controlled or nullified by a general
one, regardless of the priority of enactment.”). The Supreme
Court made the distinction between general and specific stat-
utes in Morton, however, by noting that the Indian preference
statute was specific because it “appl[ied] to a very specific sit-
uation,” while the Indian Reorganization Act was of “general
application.” Id. at 550. Here, the CWA is the more specific
statute with regard to the transfer of the NPDES permitting
program because it lists specific criteria for the EPA to con-
sider when evaluating a state program application for transfer
of authority, while ANILCA does not address either the trans-
fer from the EPA to a state or the NPDES program as a
whole.
Furthermore, there is no indication that the EPA was
required to conduct subsistence evaluations under ANILCA
when it previously retained authority over the NPDES pro-
gram before transferring it to the State of Alaska. Indeed, the
EPA does not have “primary jurisdiction” over “public lands”
in Alaska, and that is what triggers the application of
ANILCA under section 810(a). From a reading of the statute,
it appears that ANILCA applies specifically to federal land
management agencies. See 16 U.S.C. § 3102(12) (“The term
‘Secretary’ means the Secretary of the Interior, except that
when such term is used with respect to any unit of the
National Forest System, such term means the Secretary of
Agriculture.”); Id. § 3112(3) (declaring as part of the “Con-
gressional statement of policy” that “[f]ederal land managing
agencies, in managing subsistence activities on the public
lands . . . shall cooperate with adjacent landowners and land
managers”); Id. § 3120(d) (noting that after performing the
subsistence evaluation mandated by section 810, “the head of
the appropriate Federal agency may manage or dispose of
AKIAK NATIVE COMMUNITY v. EPA 18271
public lands under his primary jurisdiction”). The EPA does
not directly manage public lands and is not a federal land
management agency.5
III. Conclusion
[9] The EPA’s decision to approve the State of Alaska’s
proposed program to administer the NPDES permitting sys-
tem was not arbitrary or capricious.
PETITION FOR REVIEW DENIED.
5
In City of Angoon v. Hodel, we explicitly rejected the notion that the
CWA’s issuance of a pollution permit triggers a subsistence evaluation
under section 810(a) of ANILCA. 803 F.2d 1016, 1027-28 (9th Cir. 1986).
We noted that the CWA did not require such evaluation because the fed-
eral government did not hold title to the navigational servitude and there-
fore the servitude was not “public land” within the meaning of ANILCA.
Id. at 1027 n.6. We further stated that even if we were to conduct a broad
reading of the meaning of “public lands,” neither the EPA nor the Army
Corps of Engineers qualified as an agency having “primary jurisdiction”
over the public lands at issue, which were privately-held lands within a
National Monument managed by the U.S. Forest Service. Id. at 1028.
Petitioners argue that City of Angoon is not controlling here because this
court in Alaska v. Babbitt expanded the definition of “public lands” to
include certain federal navigable waters. In Babbitt, we held that “the defi-
nition of public lands includes those navigable waters in which the United
States has an interest by virtue of the reserved water rights doctrine.” 72
F.3d 698, 704 (9th Cir. 1995). Specifically, we held that ANILCA applies
to federal navigable waters adjacent to, or within the exterior boundaries
of, federal reservations in Alaska. See id.; 36 C.F.R. § 242.3(b). These fed-
eral reservations and enclaves are primarily controlled by federal land
management agencies, however, and not the EPA. See 94 C.J.S. Waters
§ 347 (“The federal reserved water rights doctrine or implied reservation
doctrine applies not only to Indian reservations, but to other federal
enclaves, such as national parks, forests, monuments, military bases, and
wildlife preserves.”). The EPA therefore was not required to conduct sub-
sistence evaluations under ANLICA.
18272 AKIAK NATIVE COMMUNITY v. EPA
SCHROEDER, Circuit Judge, dissenting in part:
I agree that the ANILCA provision and the lack of adminis-
trative penalties in Alaska law do not undermine the grant of
NPDES authority from the EPA to the State of Alaska, but I
strongly disagree with the majority’s conclusion that Alaska’s
“loser pays” attorney’s fee system will not adversely affect
the public’s ability to bring state court challenges to permit-
ting decisions.
Federal law on attorneys fees in public interest cases pro-
vides a dual standard that does not require a plaintiff to pay
the fees of a defendant unless the plaintiff’s action was frivo-
lous. Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978). As the Majority notes, “[w]e have interpreted sec-
tion 509 [of the CWA] to require the Christiansburg ‘dual
standard.’ ” Majority Op. at 18258 (citing Saint John’s
Organic Farm v. Gem County Mosquito Abatement Dist., 574
F.3d 1054, 1063-64, n.1 (9th Cir. 2009)). This rule is intended
to encourage access to the courts. Id. at 1062 (citing Newman
v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)).
The CWA itself mandates that
[p]ublic participation in the development, revision,
and enforcement of any regulation . . . established by
the Administrator or any State . . . shall be provided
for, encouraged, and assisted by the Administrator
and the States. The Administrator, in cooperation
with the States, shall develop and publish regulations
specifying minimum guidelines for public participa-
tion in such processes.
33 U.S.C. § 1251(e). The relevant regulation is clear that state
law can not materially limit the public’s ability to challenge
permitting decisions:
All States that administer or seek to administer a
program under this part shall provide an opportunity
AKIAK NATIVE COMMUNITY v. EPA 18273
for judicial review in State Court of the final
approval or denial of permits by the State that is suf-
ficient to provide for, encourage, and assist public
participation in the permitting process. A State 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 (see § 509 of the
Clean Water Act). A State will not meet this stan-
dard if it narrowly restricts the class of persons who
may challenge the approval or denial of permits (for
example, if only the permittee can obtain judicial
review, if persons must demonstrate injury to a pecu-
niary interest in order to obtain judicial review, or if
persons must have a property interest in close prox-
imity to a discharge or surface waters in order to
obtain judicial review).
40 C.F.R. § 123.20. Thus if the state law is the same as the
federal standard it passes muster. If it expressly defines only
a narrow class of plaintiffs with standing, it does not.
Alaska law effectively offers access to the state court only
to those members of the public or public interest groups who
are able and willing to risk the substantial financial burden of
paying attorneys fees. In my view, this does not meet the reg-
ulatory standard and hence the delegation was arbitrary and
capricious and not in accordance with the applicable law.
It is not enough for the state to “pledge” that is will not
seek fees against losing plaintiffs. Majority Op. at 18265. As
the majority opinion itself recognizes, the state cannot speak
for the myriad private interests who participate in environ-
mental litigation of this nature. Id. at 18265. Nor is it enough
that an Alaskan state court may “on a case-by-case basis” pro-
tect a losing challenger from fees. State v. Native Vill. of
Nunapitchuk, 156 P.3d 389, 406 (Alaska 2007). The Alaska
legislature has in fact repudiated the Alaska common law that
18274 AKIAK NATIVE COMMUNITY v. EPA
recognized a public interest exception to the “loser pays” rule.
See Alaska Stat. § 09.60.010(b); ch. 86, § 2, SLA 2003.
I fully recognize that the EPA can, and will, monitor the
aftermath of its grant of vast authority to the limited resources
of the state of Alaska. Compare ALASKA’S OFFICE OF MGMT &
BUDGET, STATE OF ALASKA: FY2010 GOVERNOR’S OPERATING
BUDGET, 4 (2008), http://www.gov.state.ak.us/omb/10_omb/
budget/-DEC/dept18.pdf (Alaska’s Department of Environ-
mental Conservation’s total FY2010 Budget of $74.1 Million)
with ENVIRONMENTAL PROTECTION AGENCY, FY2010 EPA BUD-
GET IN BRIEF, 6 (2009) (EPA’s total FY2010 Budget of
$10,486 Million). Yet the environmental demands facing this
nation at the present time are staggering and federal resources
too are strained. For a state the size of Alaska, whose name
“comes from an Aleut word, Alashka, meaning ‘great land,’ ”
Peter A. Dratch & Terry D. DeBruyn, Alaska: A Great Land
for Wildlife, ENDANGERED SPECIES BULLETIN, Jan.–Feb. 2002, at
12, these pressures are felt on a colossal scale:
With an area of 570,374 square miles (1,477,262 sq.
km), Alaska is by far the largest state in the United
States, about 2.3 times the size of Texas and one-
fifth the size of the contiguous United States . . .
Alaska boasts approximately 33,000 miles (53,108
km) of shoreline, more than all of the contiguous
United States . . . Freshwater, in both liquid and fro-
zen form, is abundant in Alaska, which has more
than 3 million lakes, 12,000 rivers, innumerable
streams, creeks, and ponds, as well as thousands of
square miles of glaciated area.
AKIAK NATIVE COMMUNITY v. EPA 18275
MARTHA SHULSKI & GERD WENDLER, THE CLIMATE OF ALASKA
3-8 (2007). Robust public participation, as mandated by Con-
gress, is necessary to protect Alaska’s vast ecosystem, includ-
ing its shores and waterways. Because Alaska’s proposed
program to administer the NPDES permitting system fails to
satisfy Congress’s explicit public participation mandate, I
respectfully dissent.