NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

WASHINGTON STATE DAIRY

FEDERATION; et al.,

Petitioners,

 v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; ANDREW WHEELER, Acting

Administrator of the United States

Environmental Protection Agency,

Respondents.

No. 20-70331

EPA No. SDWA-10-2013-0080

MEMORANDUM*

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted May 6, 2021** 

Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***

District Judge.

 

FILED

MAY 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Leslie E. Kobayashi, United States District Judge for

the District of Hawaii, sitting by designation.
Petitioners, the Washington State Dairy Federation (WSDF), Adam Dolsen,

Cow Palace, LLC, and the Dolsen Companies, challenge an Administrative Order

of Consent (AOC) and an underlying report (the Report) issued by the EPA in

2013 pursuant to its emergency authority under the Safe Drinking Water Act

(SDWA), 42 U.S.C. § 300i(a). The Report and AOC concern nitrate

contamination in the groundwater of the Yakima Valley in central Washington

State. Petitioners argue the EPA fraudulently induced a group of dairies to agree to

the AOC by misrepresenting the Report as “influential science.” Petitioners also

contend the conclusions reached in the Report and AOC are “arbitrary and

capricious” for purposes of the Administrative Procedure Act, 5 U.S.C. § 706(2). 

We have jurisdiction pursuant to 42 U.S.C. § 300j-7. We dismiss the petition as

untimely.

1

1. As a threshold matter, the EPA argues WSDF lacks standing. An

organization may commence an action in federal court based on injuries to itself or

to its members. Am. Unites for Kids v. Rousseau, 985 F.3d 1075, 1096 (9th Cir.

2021) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)). In order for an

organization to have standing to sue on behalf of its members, it must establish: (1)

1 The parties are familiar with the facts and we recite only those

necessary to decide the issues on appeal.

2
its members would otherwise have standing to sue in their own right; (2) the

interests it seeks to protect are germane to the organization’s purpose; and (3)

neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit. Id. (citing Hunt v. Wash. State Apple Advert.

Comm’n, 432 U.S. 333, 343 (1977)).

The addendum to petitioners’ reply brief contains a declaration by the

Director of the WSDF, Daniel Wood, that addresses WSDF’s interest in this

litigation. Wood averred that WSDF’s mission statement is to “develop[] and

promote[] initiatives directed toward the financial strength, political support, and

public awareness of [the dairy] industry to achieve a successful business climate

for dairy farmers in Washington State.” Wood further asserted that some of the

parties to the AOC are members of the WSDF and were injured by the obligations

imposed by the AOC. We conclude petitioners have alleged facts sufficient to

show that WSDF’s members would have standing in their own right, the interest in

preventing burdensome restrictions on the dairy industry is germane to the

WSDF’s purpose, and the participation of the individual members is not required. 

See id.

2. The EPA contends the petition is time barred because it was filed years

after the date the Report was issued and the AOC became effective. The SDWA

3
provides that a petition for review “shall be filed within the 45-day period

beginning on the date of the promulgation of the regulation or any other final

Agency action with respect to which review is sought or on the date of the

determination with respect to which review is sought.” 42 U.S.C. § 300j-7(a)(2). 

A petition “may be filed after the expiration of such 45-day period if the petition is

based solely on grounds arising after the expiration of such period.” Id. 

The Report and AOC were issued in 2013. The petition for review was filed

in February 2020. To explain this seven year delay, petitioners rely on the

affidavit of Adam Dolsen, the owner of one of the dairies that entered into the

AOC. Dolsen claims the EPA misrepresented the Report as “influential science”

during the negotiations leading up to the consummation of the AOC. Dolsen also

avers that petitioners were first informed that the EPA did not consider the Report

to be “influential science” at a February 2019 meeting. Even assuming the 45-day

time limit is not jurisdictional and the period between 2013 and the February 2019

meeting is subject to equitable tolling, the petition was filed more than 45 days

after petitioners allege they discovered the facts on which their petition is based. 

3. Petitioners argue that their “petition is based solely on grounds arising

after the expiration of” the original 45-day period and contend the SDWA does not

impose a limitations period for petitions for review that are based on new

4
information. In the alternative, they urge us to “borrow” the six year statute of

limitations applicable to APA claims. See 28 U.S.C. § 2401(a).

When no statute of limitations is expressly applicable to a federal statute,

“we do not ordinarily assume that Congress intended that there be no time limit on

actions at all.” DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 158

(1983). Instead, we typically “borrow” a limitations period from an analogous

state cause of action and apply it to the federal claim. Hoang v. Bank of Am., N.A.,

910 F.3d 1096, 1101 (9th Cir. 2018) (quoting Oneida Cty., N.Y. v. Oneida Indian

Nation of New York State, 470 U.S. 226, 240 (1985)). We may “decline to borrow

a state statute of limitations only when a rule from elsewhere in federal law clearly

provides a closer analogy than available state statutes, and when the federal

policies at stake and the practicalities of litigation make that rule a significantly

more appropriate vehicle for interstitial lawmaking.” Reed v. United Transp.

Union, 488 U.S. 319, 324 (1989) (internal quotation marks omitted).

Here, the most analogous claim to a SDWA claim based on new information

is a claim brought pursuant to the SDWA based on information available at the

time of the agency action. See 42 U.S.C. § 300j-7(a). Our conclusion is supported

by the Ninth Circuit’s decision in Chevron U.S.A., Inc. v. U.S.E.P.A., 908 F.2d

468, 470 (9th Cir. 1990). There, petitioners sought review of a final order the EPA

5
issued pursuant to the Clean Water Act (CWA). Id. The relevant CWA provision

governing judicial review provided an application for review “shall be made within

ninety days from the date of such determination, approval, promulgation, issuance

or denial, or after such date only if such application is based solely on grounds

which arose after such ninetieth day.” Id. at 469 (quoting 33 U.S.C. § 1369(b)(1))

(emphasis omitted). 

In Chevron U.S.A., we concluded that the “most analogous federal statute of

limitations is the one contained in the [CWA] itself, but expressly made applicable

only to suits not based on new information.” Id. at 470. Although we did not

definitively decide the issue in Chevron U.S.A., we indicated that “[w]ere we to

apply federal law in determining the applicable statute of limitations, we would

borrow [the CWA’s] 90–day limit.” Id.

Accordingly, even if the petition “is based solely on grounds arising after”

the initial 45 days described in the SDWA, 42 U.S.C. § 300j-7(a), petitioners had

45 days to bring a petition for review after they became aware of new grounds to

challenge the Report and AOC. As explained, petitioners assert that they were

alerted that the EPA did not consider the Report an “influential scientific”

6
document in February 2019. Because petitioners did not file a petition for review

until a year later, their petition is time-barred.2

PETITION DISMISSED

2 Petitioners’ motions to supplement the record on appeal, ECF 32 and

55, are DENIED as moot. 

7