Northwest Environmental Defense Center v. Nmfs, No. CV 08-939-MO.
| Decision Date | 12 August 2009 |
| Docket Number | No. CV 08-939-MO. |
| Citation | 647 F.Supp.2d 1221 |
| Parties | NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE and the U.S. Army Corps of Engineers, Defendants. |
| Court | U.S. District Court — District of Oregon |
Daniel J. Rohlf, Lewis & Clark Law School, Thomas Charles Buchele, Portland, OR, for Plaintiff.
Kevin William McArdle, U.S. Department of Justice Wildlife & Marine Resources Section, Kent E. Hanson, Environmental Defense Section U.S. Department of Justice, Washington, DC, R. Scott Jerger, Field & Jerger, LLP, Portland, OR, for Defendants.
This case arises from the City of Lake Oswego's ("City") plan to demolish part of a barge dock at River Mile 20.4 on the west bank of the Willamette River and replace it with a dock that will provide a temporary moorage facility for non-trailerable boats. The Northwest Environmental Defense Center ("NEDC") has brought suit, challenging the approval of the project by the National Marine Fisheries Service ("NMFS")1 and the U.S. Army Corps of Engineers ("Corps") under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the Rivers and Harbors Act ("RHA"), 33 U.S.C. §§ 401-426, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370.
The matters now before the court are NEDC's Motion for Summary Judgment (# 17) and NMFS and the Corps' Cross Motion for Summary Judgment (# 23). I hold that NMFS and the Corps properly executed their supervisory functions under the ESA, RHA, and NEPA. Therefore, NEDC's Motion for Summary Judgment is DENIED and NMFS and the Corps' Cross Motion for Summary Judgment is GRANTED.
The City originally requested funds from the Oregon State Marine Board ("OSMB") to construct a recreational boat dock in 2005. (USACE A.R. 256.)2 The permit application was withdrawn by the Corps in 2006, pending resolution of concerns raised by the public regarding effects on boat traffic. (Id. at 257.) A new application was submitted in 2007, placing the dock closer to shore. (Id.) However, a consultation with NMFS revealed concerns regarding fish habitat effects from building the dock too close to shore, and the dock was again redesigned. (Id.) The current design of the dock places the dock both outside the navigation channel to avoid impacts on boat traffic and far enough from shore to avoid the near-shore habitat used by protected fish. (Id.)
On April 24, 2007, the City applied to the Corps for a Letter of Permission to construct the dock, as required by the RHA. (Id. at 86.) The Corps gave public notice of the project and solicited comments on May 1, 2007. (Id.) The Corps also initiated consultation with NMFS because the Willamette River is home to Lower Columbia River ("LCR") Chinook salmon, LCR coho salmon, LCR steelhead, Columbia River chum, Upper Willamette River ("UWR") Chinook salmon, and UWR steelhead, which are protected under the ESA. (Id. at 465.) The Willamette is considered critical habitat for all the LCR and UWR Chinook salmon and steelhead. (Id. at 398.) The Corps determined that the scope of the work, with a variance for dock width to exceed six feet, was covered by a programmatic biological opinion issued by NMFS in 2004, known as SLOPES III, the Revised Standard Local Operating Procedures for Endangered Species. (Id. at 533.) They therefore withdrew the request for consultation. (Id.)
The OSMB submitted a biological assessment analyzing the potential impact of the dock on listed species (id. at 535-72) and the Tryon Creek Watershed Council submitted an extensive critique of that assessment (id. at 612-20). On November 20, 2007, the Corps issued a Letter of Permission to the City, authorizing construction of the dock. (Id. at 464-66.) Enclosures provided with the Letter of Permission indicate that the Corps had prepared an Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI") as required by NEPA. (See id. at 488-97.)
NEDC filed this lawsuit on August 11, 2008. The Corps suspended the Letter of Permission and reinitiated consultation with NMFS on September 8. (Id. at 307-08.) The Corps indicates that the reinitiation of consultation was necessary because it had come to the attention of the Corps that the SLOPES III biological opinion had been drafted before the Willamette was designated critical habitat for many of the listed salmonids. (Id. at 398.) The Corps then gave public notice of the intent to issue an RHA permit and solicited comments. (Id. at 286-91.) Numerous comments were received. (Id. at 195-97, 200-08, 215-22, 234-35, 245.)
On November 5, 2008, NMFS issued a new biological opinion ("BiOp"). NMFS concluded that the project was not likely to jeopardize the continued existence of any ESA-listed salmonids or destroy or adversely modify their critical habitat. (BiOp 28.)3 The BiOp includes an Incidental Take Statement ("ITS") limiting the take allowed during the project. (Id. at 31-36.) The Corps then conducted a second EA under NEPA and determined that an Environmental Impact Statement ("EIS") was not necessary. (USACE A.R. 63-80.) Based on the EA, the Corps issued a second FONSI. (Id. at 79.) On January 5, 2009, the Corps issued a permit to the City. (Id. at 1-5.) NEDC then filed an amended complaint challenging the actions taken by NMFS under the ESA and by the Corps under NEPA and the RHA.
The existing plan calls for the demolition of a 400-foot section of the existing barge dock (which is approximately 850 feet long), consisting of thirty-two steel pilings, and the construction of the new dock in the same area. (BiOp 2.) The new dock will be eight feet wide and 272 feet long and will be supported by twelve steel pilings. (Id.) Although the permit allows the pilings to be up to twenty-four-inches in diameter, the government indicates that the City has actually ordered sixteen-inch steel pilings. (NMFS A.R. 39 at 3, lines 28-30.)4 The dock will consist of a transient dock built with prefabricated concrete float pods, a concrete abutment, and a grated aluminum gangway connecting the dock to a small wooden pier on shore. (BiOp 2.) The installation of the pilings is expected to be completed with a vibratory hammer, rather than an impact hammer. (NMFS A.R. 12.)
The new dock will be located further offshore than the current dock, in deeper water with faster currents. (BiOp 29.) Thus, the new structure is further from the shallow water habitat preferred by salmon, steelhead, and predatory fish. (Id.) The grating on the gangway will allow light to penetrate, as will the one-foot wide grated openings between the six-foot by eight-foot float pods. (Id. at 2, 4.) This makes the area less attractive to predatory fish. (Id. at 24.) Anti-perching devises will also be placed on top of the dock pilings to reduce avian predation. (Id.)
Demolition of the old dock is expected to take three days. (Id. at 3.) In-water pile driving will take six days. (NMFS A.R. 39 at 3, lines 29-30.) All in-water work must be performed during the summer, July 1 to October 31, when the lowest number of ESA-listed fish are present. (BiOp 22.)
After originally bringing suit in August 2008, NEDC amended its complaint in January 2009, to take into account the new BiOp prepared by NMFS and the second permit issued by the Corps. NEDC brought seven claims against NMFS and the Corps related to the permitting process for the dock. Claim 1: NMFS's BiOp violates the ESA because its determination that the dock does not jeopardize the continued existence of listed salmon and steelhead is arbitrary and capricious, an abuse of discretion, and contrary to law. Claim 2: NMFS's BiOp violates the ESA by arbitrarily and improperly limiting the scope of the "action area." Claim 3: NMFS's BiOp violates the ESA because it arbitrarily and illegally compares the adverse effects in a limited "action area" with the status of the listed species throughout its entire range. Claim 4: NMFS violated the ESA by improperly evaluating the dock's impact on critical habitat of listed salmonids. Claim 5: The Corps violated the RHA by issuing a permit for the dock without balancing the benefits and detriments of the project. Claim 6: NMFS's incidental take statement is in violation of the ESA because it fails to assess the total number of salmonids that will be taken by the dock and at what level the take will require reinitiation of Section 7 consultation. Claim 7: The Corps violated NEPA by preparing an insufficient EA.
Both parties have now moved for summary judgment on all claims. In Part I, I examine NEDC's five claims against NMFS under the ESA (Claims 1, 2, 3, 4, and 6). In Part II, I analyze Claim 5, brought against the Corps under the RHA. Finally, in Part III, I examine Claim 7, brought against the Corps under NEPA.
Section 706 of the Administrative Procedure Act ("APA") governs judicial review of agency actions under the ESA, RHA, and NEPA. 5 U.S.C. § 706; Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.2005) (ESA); Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.1986) (RHA); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir.2004) (NEPA). The scope of judicial review under section 706 is narrow, and a court must uphold an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D).
An agency action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs...
To continue reading
Request your trial
-
Audubon Soc'y of Portland v. Nat'l Marine Fisheries Serv.
...repeatedly. Dkt. # 19, p. 12 (citing Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir.2009); Northwest Environ. Def. Ctr. v. NMFS, 647 F.Supp.2d 1221, 1238 (D.Or.2009) (Mosman, J.) (“NEDC ”); & Consolidated Salmonid Cases, 713 F.Supp.2d 1116, 1163–64 (E.D.Cal.2010)). The defendants note ......
-
Cascadia Wildlands v. Bureau of Land Mgmt.
...material is "reasonably available for inspection" and its content is briefly described. Nw. Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv. , 647 F. Supp. 2d 1221, 1247 (D. Or. 2009). First, although the fuels specialist's report was part of the public Project record, neither Environmental......
-
Aqualliance v. U.S. Bureau of Reclamation
...to incorporate by reference the reasoning contained the 2008 BiOp, an ESA document. See Nw. Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv., 647 F. Supp. 2d 1221, 1247 (D. Or. 2009). As mentioned above, the 2008 BiOp discussed the potential effects of transferring up to 600,000 AF of water......
-
Miccosukee Tribe of Indians of Florida v. US
...the likelihood that use of a habitat marker will be permissible because of impracticality. Northwest Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv., 647 F.Supp.2d 1221, 1237-38 (D.Or.2009) (finding use of ecological surrogate valid where it was impossible to estimate the population of sal......
-
Quantifying, monitoring, and tracking "take" under the Endangered Species Act: the promise of a more informed approach to consultation.
...Evans (NRDC v. Ewans), 279 F. Supp. 2d 1129, 1185-87 (N.D. Cal. 2003). (8) See Nw. Envtl. Def. Ctr. v. Nat'l Marine Fisheries Serv., 647 F. Supp. 2d 1221, 1239-40 (D. Or. 2009) (using an ecological surrogate for the take of listed salmon of 3600 pile strikes per day or more than seventeen b......