Barnum Timber Co. v. U.S. Envtl. Prot. Agency

Citation835 F.Supp.2d 773,75 ERC 1184
Decision Date16 December 2011
Docket NumberNo. C 08–01988 WHA.,C 08–01988 WHA.
PartiesBARNUM TIMBER CO., a California limited partnership, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Lisa P. Jackson, in her official capacity as Administrator of the Environmental Protection Agency, Defendants.
CourtU.S. District Court — Eastern District of California

OPINION TEXT STARTS HERE

Damien Schiff, Paul James Beard, II, Pacific Legal Foundation, Sacramento, CA, for Plaintiff.

Meredith Weinberg, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this environmental action, plaintiff and defendants each move for summary judgment on all three claims. For the reasons stated below, defendants' motion is Granted, and plaintiff's motion is Denied.

STATEMENT

The following facts are undisputed. Plaintiff Barnum Timber Company “owns and operates substantial nonindustrial timberlands and rangelands in Northern California, primarily in Humboldt County and the Redwood Creek watershed.” Redwood Creek is a forested watershed comprising 280,000 acres located near Eureka in northwestern California. Plaintiff has owned 15,000 acres in the Redwood Creek basin since 1950, making it the second largest private landowner in the basin. (Barnum Decl. ¶ 4).

1. The Listing of Redwood Creek as “Impaired.”

Pursuant to the Clean Water Act, all states are required to identify the bodies of water within their boundaries that are impaired by effluent or thermal pollution. 33 U.S.C. 1313(d)(1). “Impairment” means water quality objectives are not being met or beneficial uses are not being supported. Each water body that is impaired is placed on a Section 303(d) list”—referring to Section 303 of the Clean Water Act—and that list is periodically submitted to the EPA for approval. For those water bodies on the list, the state is further required to establish a total maximum daily load for each pollutant impairing a body of water. 33 U.S.C. 1313(d)(1). A TMDL determines the amount of a pollutant which can be introduced in the water without exceeding water-quality standards. 40 C.F.R. 130.7. The state's completed Section 303(d) list is then periodically submitted to the EPA, which can approve or disapprove the list. 33 U.S.C. 1313(d)(2). The extent to which the EPA is required to review the Section 303(d) lists is the subject of this dispute.

California added Redwood Creek to its Section 303(d) list in 1992 due to impairment by sediment (AR 3569). The EPA, pursuant to a consent decree, established a TMDL for Redwood Creek for sediment in 1998 (AR 3568). In 2001, as part of the state's regular reassessment of its Section 303(d) list, the North Coast Regional Water Quality Control Board recommended to the State Water Resources Control Board to retain Redwood Creek on the impaired list as sediment-impaired and add it to the list as temperature-impaired (AR 4310; see also North Coast Region Water Quality Control Board 303(d) List Update Recommendations (Nov. 16, 2001), http:// www. swrcb. ca. gov/ water_ issues/ programs/ tmdl/ docs/ 303 d_ policydocs/ 266. pdf, at 16–17, 28–31). The North Coast Board's “303(d) List Update Recommendations” indicated that “high temperature levels may be a source of impairment of cold water fisheries in the river.” Data taken from 31 locations indicated that the maximum weekly average temperature values at ten locations “exceeded the upper end of the range of [maximum weekly average temperature] criteria (17°C) for sub-lethal effects (10% reduced growth) on juvenile salmonids.” Twenty percent reduced growth on juvenile salmonids was indicated by data in other locations ( ibid.).

The State Water Board then decided to include Redwood Creek on its 2002 Section 303(d) list as a temperature-impaired and sediment-impaired body of water (AR 355). California then provided its Section 303(d) submission to the EPA, and the portion pertaining to Redwood Creek was approved in 2003 (AR 355). In 2006, California submitted its 20042006 Section 303(d) list to the EPA, which included Redwood Creek on the list of water-quality limited segments for temperature-impairment and on the list of water-quality limited segments being addressed by an EPA-approved TMDL for sediment-impairment (AR 162, 188). The EPA approved the inclusion of Redwood Creek (AR 1).

2. The 20082010 Section

303(d)

List.

As part of the next cycle of the listing process, the State Board adopted a proposed Section 303(d) list in 2010, and submitted it to the EPA (AR 3895). Before California submitted the list to the EPA, the North Coast Board solicited water-quality information from the public, responded to comments from the public, and held a public hearing before making its recommendations to the state (AR 3991, 4001, 4309–11). The State Board then issued its draft of the list for public comment before forwarding its “California 2010 Integrated Report” to the EPA (AR 3896).

The 2010 list once again included Redwood Creek as impaired by sediment and temperature. The sediment listing stated that the pollutant was being addressed by an approved TMDL (AR 3896–98; 3912–13). The EPA approved the 20082010 list as it pertained to Redwood Creek, stating: “EPA is ... acting today to approve the State's inclusion of all waters and pollutants that the State identified as requiring a TMDL” (AR 3869). The parties dispute whether the EPA approved the listing of Redwood Creek as sediment-impaired at that time because it was not identified as requiring a TMDL, as one was already in place. The EPA provided a 23–page rationale for its decision in addition to its approval letter (AR 3869–93). In reaching its decision, the EPA claimed that the State's listing decisions, assessment methodology, and supporting data and information” were carefully considered (AR 3869).

3. Evidence Submitted During the Section 303(d) Listing Review Process by Plaintiff.

During the 2002, 2006, and 2010 listing cycles, plaintiff participated in the public comment process by providing the North Coast Board and the State Board with information and testimony regarding Redwood Creek. Plaintiff submitted multiple items, but emphasizes scientific report titled A Study in Change: Redwood Creek and Salmon and raw data on the salmonid population (Barnum Exhs. 1–3). Plaintiff argues that the data it submitted show that the quality of habitat is “sufficient to support young salmonids at levels fully consistent with strong, healthy, and natural production levels” and that “Redwood Creek's sedimentation and temperature levels are consistent with historical levels and that the Creek is in as good condition now as it was before modern human interaction” (Br. 5).

4. Procedural History.

Plaintiff commenced this action in 2008 under the Administrative Procedure Act, challenging the EPA's approval of the 20042006 Section 303(d) list pursuant to the Clean Water Act (Dkt. No. 1). EPA then moved to dismiss the complaint for lack of standing, contending that plaintiff failed to show an injury that was traceable to the EPA and redressable by the courts (Dkt. No. 9). The motion was granted, and plaintiff moved for leave to file an amended complaint (Dkt. Nos.27–28). The motion for leave to file an amended complaint was denied because the declarations attached to the proposed amended complaint did not cure the standing deficiencies (Dkt. No. 33). On appeal, however, the United States Court of Appeals for the Ninth Circuit reversed and remanded, finding that plaintiff was able to demonstrate it had Article III standing through the use of the attached declarations. Barnum Timber Co. v. EPA, 633 F.3d 894, 901–02 (9th Cir.2011).

In May 2011, plaintiff filed its second amended complaint against the EPA and Lisa P. Jackson, in her official capacity as administrator of the EPA, for declaratory and injunctive relief, challenging defendants' approval of the 20082010 Section 303(d) list (Dkt. No. 53). Plaintiff alleges three claims for relief: (1) violations of Section 1313(d) and Section 706 of the APA due to defendant's arbitrary and capricious inclusion of Redwood Creek on the 2010 Section 303(d) list as impaired; (2) violations of Section 1313(d) and Section 706 due to defendant's arbitrary and capricious inclusion of Redwood Creek on the 2010 Section 303(d) list as impaired by sediment; and (3) violations of Section 1313(d) and Section 706 due to defendant's arbitrary and capricious inclusion of Redwood Creek on the 2010 Section 303(d) list as impaired by temperature (Dkt. No. 53).

Both sides now move for summary judgment on all three claims (Dkt. Nos. 57–58). This order follows full briefing and a hearing.

ANALYSIS

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FRCP 56(a). In this analysis, all reasonable inferences must be drawn in the light most favorable to the non-moving party. Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1018 (9th Cir.2010). Unsupported conjecture or conclusory statements, however, cannot defeat summary judgment. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir.2008).

Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party bears the initial burden of either producing evidence that negates an essential element of the non-moving party's claims, or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. See Nissan Fire & Marine Ins. Co. v....

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