Ocean Advocates v. U.S. Army Corps of Engineers
Citation | 402 F.3d 846 |
Decision Date | 15 March 2004 |
Docket Number | No. 01-36133.,No. 01-36144.,01-36133.,01-36144. |
Parties | OCEAN ADVOCATES, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Ralph H. Graves, Defendants-Appellees, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellee. Ocean Advocates, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellees, v. United States Army Corps of Engineers; Ralph H. Graves, Defendants-Appellants, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John B. Arum, Seattle, WA, for the plaintiff-appellant.
Claudia M. Newman, Seattle, WA, for the plaintiff-appellant.
Elaine Spencer, Seattle, WA, for the defendant-intervenor-appellee/cross-appellant.
Ronald M. Spritzer, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for the defendant-appellee.
Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-00-01971-RSL.
Before D.W. NELSON, THOMAS, Circuit Judges, and PREGERSON, District Judge.*
The opinion filed on March 15, 2004, appearing at 361 F.3d 1108 (9th Cir.2004) is amended as follows: Page 3151, lines 1-2: delete "See Public Citizen v. Dep't of Transp., 316 F.3d 1002, 1014 (9th Cir.2003)."
Page 3164, line 7: replace "dock" with "refinery"
Page 3167, lines 6-14: replace with
Page 3170, line 18: insert the following two new paragraphs after the paragraph ending "impacts accurately.": "In granting summary judgment for the Corps and BP on OA's environmental claims, the district court found that NEPA did not require an EIS because the pier extension was intended to alleviate existing tanker traffic, which would increase due to market forces with or without the extension." To reach this decision, the district court erroneously determined that the intent of the dock extension was to deal with existing traffic and analogized to our decisions in Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir.1998), and Seattle Community Council Federation v. FAA, 961 F.2d 829 (9th Cir.1992), where the purpose of the proposed project was to increase efficiency and safety. Ocean Advocates, 167 F.Supp.2d at 1212-13. Here, however, neither the Corps nor BP has proven that the purpose of the pier extension is primarily to increase efficiency and safety. Instead, the 1996 permit states that the "Need and Purpose" of the project is to "expand a petroleum product loading/ unloading facility." Neither the 2000 amended permitting decision nor BP's form application for a permit indicates that the central purpose of the project is to increase safety or efficiency. Morongo and Seattle Community Council Federation are also distinguishable because neither case dealt with any change in ground capacity. In both cases, the increased flight volume was a function of new routes into the same airport terminal, whereas in this case whatever increase in tanker traffic may occur results from the expansion of the pier itself.
Page 3171, line 8: insert after "in the area."
Page 3172, line 33: insert After "remedy OA's harm."
Page 3179, lines 8-14: replace with
With this amendment, the members of the panel that decided this case voted unanimously to deny Appellee's petition for rehearing. Judge Thomas voted to deny the petitions for rehearing en banc. Judges D. Nelson and D. Pregerson recommended denial of the petitions for rehearing en banc.
The full court has been advised of the petitions for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed. R.App. P. 35.)
The petitions for rehearing/rehearing en banc filed on May 24, 2004, and June 4, 2004, are hereby DENIED.
Subsequent petitions for panel rehearing or petitions for rehearing en banc may be filed.
Ocean Advocates (OA), an environmental group, appeals a summary judgment ruling in favor of the U.S. Army Corps of Engineers (the Corps) and BP West Coast Products (BP).1 OA challenges the issuance and extension of a permit allowing BP to build an addition to its existing oil refinery dock in Cherry Point, Washington. OA argues that the district court erred in granting summary judgment to the Corps and BP, insisting that the permit violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and the Magnuson Amendment to the Marine Mammal Protection Act (MMPA), 33 U.S.C. § 476. BP cross-appeals the district court's denial of its motion for summary judgment on grounds that OA lacks standing and that laches bars this action.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
Cherry Point is an approximately ten-mile stretch of coastline located in the Strait of Georgia in northeast Puget Sound. It has been described as "a shoreline of statewide significance," by the Whatcom County Hearing Examiner.
BP first constructed a refinery to process Alaskan North Slope crude oil in Cherry Point, south of Point Whitehorn, in 1971. The 1969 permit authorizing this project allowed BP to construct a dock to which tankers would deliver crude oil.
The dock design included two platforms: one for unloading crude oil and one for loading refined product. Just before construction began, BP opted to build only the southern platform and deferred building the northern platform until production at the refinery reached capacity or the loading and unloading of tankers began to interfere with refinery operations. Physical adjustments enabled the southern platform both to unload crude oil and to load refined product so that the dock could function as it would have with both platforms.
BP sought to have the 1969 permit reopened in 1977 so that it could complete the original design of the pier by building the northern platform. Because of the time lapse between granting the original permit and the request to reopen, the Corps required BP to submit a new permit application that would be subject to public notice and comment. BP withdrew the application.
BP again applied for a permit to build the...
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