Idaho Rivers United v. U.S. Army Corps of Eng'rs

• Decision Date: 07 January 2015
• Docket Number: CASE NO. C14–1800JLR
• Citation: 156 F.Supp.3d 1252
• Parties: Idaho Rivers United, et al., Plaintiffs, v. United States Army Corps of Engineers, Defendant.
• Court: U.S. District Court — Western District of Washington

156 F.Supp.3d 1252

Idaho Rivers United, et al., Plaintiffs,

v.United States Army Corps of Engineers, Defendant.

CASE NO. C14–1800JLR

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

Signed January 7, 2015

Matthew R. Baca, Stephen D. Mashuda, Earthjustice Legal Defense Fund, Rob Roy Smith, Kilpatrick Townsend & Stockton LLP, Seattle, WA, David J. Cummings, Office of Legal Counsel, Michael A. Lopez, Nez Perce Tribe, Office Of Legal Counsel, Lapwai, ID, for Plaintiffs.

Kent E. Hanson, Kristofor Swanson, US Department of Justice, Washington, DC, for Defendant.

Beth S. Ginsberg, Jason T. Morgan, Sara A. Leverette, Stoel Rives, Seattle, WA, for Inland Port and Navigation Group.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

JAMES L. ROBART

, United States District Judge

I. INTRODUCTION

This matter comes before the court on Plaintiffs Idaho Rivers United, Washington Wildlife Federation, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Sierra Club, Friends of the Clearwater, and Nez Perce Tribe's (collectively “Plaintiffs”) motion for preliminary injunction to halt Defendant United States Army Corps of Engineers' (“the Corps”) plan to conduct dredging operations on the lower Snake River beginning in January, 2015. (See generally Mot. (Dkt.# 8).) Plaintiffs' lawsuit and motion for a preliminary injunction are based on the Corps' alleged violations of both the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321

–4347, and the Clean Water Act (CWA”), 33 U.S.C. §§ 1251 –1387. (Mot. at 1; Compl. (Dkt.# 1) ¶ 1.)

In their complaint, Plaintiffs challenge two actions by the Corps: “1) the Corps' ‘immediate need’ proposed dredging action for the winter of 2014–2015; and 2) the Corps' long-term plan for addressing sediment accumulation in the Snake River from Lewiston, Idaho to the confluence with the Columbia River.” (Compl.¶ 6.) This order is not a final determination of the issues in this case. This order addresses only the propriety of granting the extraordinary relief of a preliminary injunction with respect to the Corps' “immediate need” proposed dredging of portions of the lower Snake River.

The parties have fully briefed the issues (see generally Mot.; Resp. (Dkt. # 31); Reply (Dkt.# 55)) and provided myriad declarations in support of their positions. In addition, the court granted unopposed motions to intervene on behalf of the Inland Ports and Navigation Group (“IPNG”) and the Columbia Snake River Irrigators Association (“CSRIA”) (see Dkt. # # 28, 29), and these intervenors filed memoranda in opposition to Plaintiffs' motion (see IPNG Resp. (Dkt.# 37); CSRIA Resp. (Dkt.# 47)), along with their own evidentiary materials. On January 5, 2015, the court heard the argument of counsel, and being fully advised by the parties and intervenors, rendered an oral decision denying Plaintiffs' motion. This written order now confirms the court's earlier oral ruling and provides the parties with a more complete analysis of the court's decision.

II. BACKGROUND

A. Prior Conflict Over the Corps' Dredging of Portions of the Lower Snake River

As a part of its Congressional authorization, the Corps operates and maintains the navigation system on the lower Snake River. (Swanson Decl. (Dkt.# 36) Ex. 1 (“EIS”) at 1–1.)¹ Between 1961 and 1975, the Corps constructed four dams on the Snake River in Washington State, including Ice Harbor, Lower Monumental, Little Goose, and Lower Granite. (Id. ) In addition to navigation, these four dams and their associated locks and reservoirs serve purposes of power generation, recreation, fish and wildlife conservation, and incidental water supply for irrigation. (Id. at 1–6, 1–7.) The Corps collectively refers to these as the Lower Snake River Projects (“LSRP”). (Id. at 1–1; Vail Decl. ¶ 2.) The Corps has historically used dredging as its primary method of removing accumulated sediment that interferes with commercial navigation or other Corps' projects on the lower Snake River. (EIS at 1–1.)

Conflict over dredging on the lower Snake River has a long history in this district. In 2002, the Corps prepared a Dredged Material Management Plan to evaluate alternatives for managing disposal of any future sediment the Corps might dredge from the lower Snake River. (See id. at 1–3.) A group of organizations, including Plaintiffs, challenged the Corps' dredging plan, and the Honorable Robert S. Lasnik of this district preliminarily enjoined the dredging. See Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1162–63 (W.D.Wash.2002)

.

After Judge Lasnik issued a second preliminary injunction against the Corps' planned dredging on November 1, 2004 (see Compl. Ex. 1), the parties agreed to settle their dispute in 2005 (see id . Ex. 2 (attaching settlement agreement and joint motion to dismiss).) As part of the settlement, the plaintiffs agreed not to bring any further challenges to the Corps' planned maintenance dredging for the winter of 2005–2006,² and the Corps agreed to conduct review under NEPA for a long-term approach to sediment management in the lower Snake River, which the parties referred to as the Programmatic Sediment Management Plan, (“PSMP”). (See id. ) The Corps also agreed to issue a final environmental impact statement and record of decision with respect to the PSMP in late 2009. (See id. )

The Corps did not meet the deadlines outlined in the 2005 settlement agreement. Indeed, instead of issuing its final environmental impact statement and record of decision in 2009 as agreed, the Corps did not complete those tasks until late 2014–nearly five years past the date delineated in the parties' agreement. On November 17 and 18, 2014, the Corps issued its Final Environmental Impact Statement (“FEIS”) and Records of Decision (“RODs”) for the PSMP and for its “current immediate need action” to dredge specific locations in the lower Snake River beginning December 15, 2014.³ (See Compl. ¶ 1.) Since that time, the Corps has informed the court that any immediate need dredging will not commence before approximately January 12, 2015. (See Resp. (Dkt.# 31) at 5 (citing Vail Decl. (Dkt.# 32) ¶ 10).)⁴

In their complaint, Plaintiffs challenge both the Corps' long-term PSMP and the Corps' “current immediate need action” to dredge specific locations in the Lower Snake River beginning in January 2015. (See Compl. ¶¶ 6–11.) Plaintiffs' motion for preliminary injunction, however, addresses only the Corps' immediate plan to conduct dredging operations in January 2015. (See generally Mot.)

B. The PSMP

The PSMP was intended to create a decision-making framework through which sediment accumulation interfering with purposes of the existing LSRP (including, but not limited to, navigation) could be managed and, to the extent possible, prevented. (EIS at 1–4.) The Corps conducted studies to analyze sediment sources, movement through the river system, and deposits in the lower Snake River reservoirs. (EIS at 1–18 to 1–28; EIS App. M at M–9 to M–36, M–95 to M–108.)

The Corps identified 24 potential sediment management measures across four different categories. (EIS at 2–4 to 2–9.) The Corps created six management frameworks, as well as a no-action alternative, and analyzed these frameworks in its EIS. (EIS at 2–27 to 2–41.) The Corps selected “Alternative 7” as its PSMP. (Mashuda Decl. (Dkt.# 11) Ex. 21 (Dkt.# 14–5) (attaching the Corps' ROD for the PSMP) at 11 (“Alternative 7 is the selected plan.”).) The Corps' ROD describes Alternative 7 as providing for a range of dredging, system management, and structural management measures for the Corps to use to address sediments that interfere with the various purposes of the Lower Snake River Projects. (Id. at 1.) The Plan includes fourteen potential management measures to address sediment accumulation, including dredging. (EIS at 2–29 to 2–30 (chart), 2–36 to 2–37.) The Corps developed these various management measures to address problematic sediment accumulation on both an immediate and near-term basis, as well as to address “anticipated future problems before they are critical.” (Id. at 2–4; EIS App. A at A–1.)

The PSMP identifies certain conditions under each of the Corps' management purposes that, when met, will trigger either “immediate” or “future forecast” action from the available management measures. (EIS App. at A–19 to A–30.) For navigation, Corps action is triggered when a portion of the navigation channel is less than fourteen feet at Minimum Operating Pool⁵ due to sediment accumulation and impairs the safe commercial navigation or access to navigation locks (“immediate need”), or when that scenario is forecasted to occur more than once in a five-year period (“future forecast need”). (Id. at A–21 to A22.) The PSMP then identifies the specific management measures the Corps should consider to remedy an immediate or forecasted sediment problem. (See, e.g., id. at A–23 to A–24.)

C. The Current Immediate Need Action

In developing the PSMP, the Corps identified two locations on the lower Snake River where sedimentation in the navigation channel had lowered water depth to as low as seven and nine feet, thereby impairing navigation and triggering an immediate need action. (Mashuda Decl. Ex. 22 (Dkt.# 14–6) (attaching the Corps' ROD for current immediate need action) at 2.) The first impairment is at the downstream lock approach at Ice Harbor Dam (EIS at 2–3; EIS App. L at L–4, L–5 (maps)), and the second is at the confluence of the Snake and Clearwater rivers (EIS at 2–3; 3–94; EIS App. L at L–6 to L7). The Corps analyzed the need and potential for site-specific immediate action alongside the plan-level descriptions in the PSMP and issued a single final environmental impact statement with respect to both the PSMP and the current immediate need action. (EIS at 1–2.) Plaintiffs' motion for preliminary injunction is not about the entire PSMP or the entire 140–mile channel, but rather the Corps' proposed dredging activity at...