August 30, 2013
Northwest Environmental Defense Center, an Oregon nonprofit corporation, Plaintiff-Appellant, American Forest & Paper Association; Oregon Forest Industry Council, Intervenors,
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; Swanson Group, Inc., an Oregon domestic business corporation; Tillamook County, Defendants-Appellees.
On Remand From The United States Supreme Court D.C. No. CV-06-01270-GMK
Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and Charles R. Breyer, District Judge.[*]
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 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.