Native Village of Point Hope; v. U.s. Environmental Protection Agency

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF POINT HOPE; et
al.,
Plaintiffs - Appellants,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Defendant - Appellee,
TECK ALASKA INCORPORATED and
NANA REGIONAL CORPORATION,
Intervenor-Defendants -
Appellees.
No. 12-35976
D.C. No. 3:11-cv-00200-TMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted August 13, 2013
Anchorage, Alaska
Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.
FILED
AUG 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Native Village of Point Hope, Alaska Community Action on Toxics, and
Northern Alaska Environmental Center appeal the district court’s grant of
summary judgment in favor of the EPA.
Native Village of Point Hope has standing to challenge the EPA’s action on
behalf of one of its members, Franklin Sage. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000). Sage’s affidavit established a
credible threat of injury that is traceable to the EPA’s action because it alleged that
his family fishes for Arctic grayling in the Wulik River, that Sage trades for such
fish, and that he is concerned that pollution in Red Dog Creek threatens the Arctic
grayling population. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
846, 859 (9th Cir. 2005).
We reject Point Hope’s argument that the EPA was arbitrary and capricious
in approving the site-specific water quality criterion for total dissolved solids
(TDS) in Red Dog Creek during Arctic grayling spawning season without first
obtaining additional data on the long term and delayed impacts to Arctic grayling
from exposure to TDS at fertilization. The EPA’s reasonable conclusion (after
consideration of the Stekoll study) that it was unnecessary to require follow-up
research regarding such long-term effects of exposure, was well within its “wide
latitude in determining the extent of data-gathering necessary to solve a problem.”
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Envtl. Def. Ctr., Inc. v. E.P.A., 344 F.3d 832, 870 (9th Cir. 2003) (quoting Sierra
Club v. E.P.A., 167 F.3d 658, 662 (D.C. Cir. 1999)).
AFFIRMED.
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