Don't Cage Our Oceans v. United States Army Corps of Eng'rs

• Court: U.S. District Court — Western District of Washington
• Writing for the Court: Kymberly K. Evanson, United States District Judge
• Docket Number: C22-1627-KKE
• Decision Date: 30 September 2024
• Citation: Don't Cage Our Oceans v. United States Army Corps of Eng'rs, C22-1627-KKE (W.D. Wash. Sep 30, 2024)
• Parties: DON'T CAGE OUR OCEANS, et al., Plaintiff(s), v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendant(s).
• topic: Contracts,Administrative Law,Environmental Law,Public Sector Law

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DON'T CAGE OUR OCEANS, et al., Plaintiff(s), v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendant(s).

No. C22-1627-KKE

United States District Court, W.D. Washington, Seattle

September 30, 2024

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Kymberly K. Evanson, United States District Judge

The parties' cross-motions for summary judgment in this action require the Court to review Nationwide Permit (“NWP”) 56, issued by Defendant United States Army Corps of Engineers (“the Corps”) to authorize the installation of structures to be used in finfish aquaculture operations in United States waters. The Court's review of NWP 56 indicates that the Corps issued the permit without fully complying with the procedural safeguards imposed by the Rivers and Harbors Act of 1899 (“RHA”) and the National Environmental Policy Act (“NEPA”). The Court therefore finds that the Corps violated the Administrative Procedure Act (“APA”), and Plaintiffs' motion is granted in that respect. The Court finds, however, that Defendants are entitled to summary judgment on Plaintiffs' claims asserting that Defendants acted outside of their authority in issuing NWP 56. Although the Court concludes NWP 56 is unlawful, more information is needed before the Court can determine the appropriate remedy, as explained herein.

I. BACKGROUND

In May 2020, President Trump issued an executive order titled “Promoting American Seafood Competitiveness and Economic Growth.” Exec. Order No. 13,921, 85 Fed.Reg 28,471 (May 7, 2020). This order required that, among other things, within 90 days the Secretary of the Army develop and propose for public comment an NWP authorizing finfish aquaculture activities in United States waters. Id. at 28,473-74.

The Corps narrowed the scope of the proposed NWP to authorize only the structures to be used in finfish aquaculture activities rather than the activities themselves (NWP002440^[1]), and with that limitation applied, the Corps found that the permit would cause no more than “minimal” environmental impacts and was therefore suitable to be issued as a general permit. NWP002436-NWP002519. The Corps' decision document contains an environmental assessment (“EA”) concluding that the NWP would cause no significant impact to the quality of the human environment, and that as a result of that finding, a full environmental impact statement (“EIS”) was not needed. NWP002518. The Corps' review also determined that the activities permitted under this NWP would not impact any species listed in the Endangered Species Act (“ESA”), and thus the Corps found it was not required by the ESA to consult with other federal agencies before issuing the permit. See NWP002514-NW002518.

NWP 56 was issued in January 2021, and Plaintiffs (a collection of nonprofit and other organizations) filed this action against the Corps and its lieutenant general (referred to collectively herein as “the Corps”) in November 2022 to challenge NWP 56 and request its vacatur. Dkt. No. 1. Plaintiffs amended their complaint in January 2023. Dkt. No. 14. After the administrative record was filed, the parties cross-moved for summary judgment. Dkt. Nos. 28, 44, 62.^[2] The Court heard oral argument on those cross-motions in July 2024 (Dkt. No. 68), and the motions are now ripe for resolution.

II. ANALYSIS

Plaintiffs challenge NWP 56 on a number of bases. Dkt. No. 44. The Corps opposes Plaintiffs' motion on each basis asserted, and also argues that Plaintiffs lack standing to challenge NWP 56 in the first place. Dkt. No. 62. The Court will first address the standing issue, and then turn to consider the merits of the parties' arguments regarding NWP 56.

A. Legal Standards on Summary Judgment

Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court does not make credibility determinations or weigh the evidence at this stage. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The sole inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

B. Plaintiffs Have Standing to Challenge NWP 56.

In order to establish standing to sue under Article III of the Constitution, a plaintiff must establish that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The injury must be “‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

An organizational plaintiff must demonstrate that at least one of its “members would otherwise have standing to sue in [the member's] own right, [that] the interests at stake are germane to the organization's purpose, and [that] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Wash. Env't Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528 U.S. 167, 181 (2000)). A “generalized harm to ... the environment will not alone support standing[.]” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). Plaintiffs must instead demonstrate imminent individualized harm to their recreational or aesthetic use of an area. Sierra Club v. Morton, 405 U.S. 727, 734-36 (1972). The Ninth Circuit considers a plaintiff to have shown imminent injury resulting from an agency's programmatic action if the plaintiff identifies a concrete interest that is affected by the agency action, even if the potential injury is merely threatened and is contingent on additional actions.^[3] Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515-16 (9th Cir. 1992).

Here, Plaintiffs' motion for summary judgment addresses standing in a footnote:

Plaintiff member organizations and their members have standing because their members' professional, cultural, recreational, aesthetic, economic, and personal interests in aquatic and wildlife resources, including federally protected species, are injured and will continue to be injured, by the Corps' ultra vires authorization of NWP 56 and failure to adequately analyze and take into account NWP 56's adverse impacts under numerous environmental statutes.

Dkt. No. 44 at 22-23 n.4 (citing the declarations filed in support of Plaintiffs' motion).

The Corps contends that this footnote and the declarations cited therein are insufficient to establish that Plaintiffs have standing to challenge NWP 56. Dkt. No. 62 at 21. Specifically, the Corps cites the declarations' generalized statements of harm resulting from hypothetical activities conducted at structures not yet authorized by NWP 56, arguing that such speculative concerns do not rise to the level needed to confer standing. Id. at 21-22. The Corps also contends that Plaintiffs' members' speculative concerns relate to finfish aquaculture activities in general, but not to specific structures authorized by NWP 56. Id. at 22. Furthermore, the Corps argues that vacating NWP 56 would not eliminate finfish aquaculture activities altogether, given that activities have been permitted for years (via individual permit) before NWP 56 was issued. Id. at 22-23. Thus, according to the Corps, Plaintiffs have failed to establish any of the injury in fact, traceability, and redressability prongs necessary to confer standing.

The Court disagrees with the Corps and finds that Plaintiffs have submitted evidence sufficiently establishing all three requirements for standing. First, Plaintiffs assert that the Corps issued NWP 56 without fully complying with procedural requirements intended to protect their environmental interests in specific locations. See Dkt. No. 63 at 15-16. Plaintiffs' members live, work, travel, and/or recreate in areas identified as “Aquaculture Opportunity Areas,” which were “evaluated for their potential for sustainable commercial aquaculture” and defined by the executive order that led to the creation of NWP 56. See Dkt. No. 45-1 at 3; Dkt. No. 46 ¶¶ 6-10; Dkt. No. 47 at 6-7, 15, 17-18, 21; Dkt. No. 49 at 3-4, 10; Dkt. No. 51 at 14; Dkt. No. 53 at 6. Plaintiffs' members have specifically described an imminent harm to their use of specific geographical areas likely to be impacted by activities authorized under NWP 56. See Dkt. No. 45-1 at 3; Dkt. No. 46 ¶¶ 6-10; Dkt. No. 47 at 6-7, 15, 17-18, 21; Dkt. No. 49 at 3-4, 10; Dkt. No. 51 at 14; Dkt. No. 53 at 6. Plaintiffs have shown that projects authorized under NWP 56 would impede their interests in those geographical areas due to, for example, the resulting degradation of water quality and disease transfer from farmed fish to wild fish. Id. Plaintiffs have therefore sufficiently established an injury in fact. See Friends of Santa Clara River v. U.S. Army Corps of Eng'rs, 887 F.3d 906, 918 (9th Cir. 2018) (explaining that plaintiffs demonstrate “an injury in fact in the context of a claimed procedural error in an agency's decisionmaking process” by showing that the agency violated a procedural rule that protects their concrete interests, and that it is “‘reasonably probable that the challenged action will threaten their concrete interests'” (quoting San Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1232 (9th Cir. 2017)).

Because Plaintiffs have asserted a procedural injury, the second two causation requirements (traceability and redressability) for Article III standing are relaxed. See Salmon Spawning & Recovery All. v....