Idaho Rivers United v. U.S. Army Corps of Eng'rs, CASE NO. C14-1800JLR

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJAMES L. ROBART United States District Judge
Decision Date09 February 2016
PartiesIDAHO RIVERS UNITED, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant, and INLAND PORT AND NAVIGATION GROUP, et al., Intervenor-Defendants.
Docket NumberCASE NO. C14-1800JLR

IDAHO RIVERS UNITED, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant,
and
INLAND PORT AND NAVIGATION GROUP, et al., Intervenor-Defendants.

CASE NO. C14-1800JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

February 9, 2016


ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

In November 2014, 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 (collectively

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"Plaintiffs") sued Defendant United States Army Corps of Engineers ("the Corps") for alleged violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-47, and the Clean Water Act (CWA"), 33 U.S.C. §§ 1251-1387, over the Corps' proposed maintenance of the Snake River navigation channel. (See generally Compl. (Dkt. # 1); Am. Compl. (Dkt. # 60).) In their amended 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." (Am. Compl. ¶ 6.) In early January 2015, the court denied Plaintiffs' motion for a preliminary injunction to prevent the Corps from dredging in the winter of 2015. (See generally Min. Entry (Dkt. # 56); PI Order (Dkt. # 57).) In doing so, however, the court declined to rule on the likelihood of Plaintiffs' success on the merits and directed the parties to present these issues to the court as soon as practicable on summary judgment. (Id. at 29 n.16, 30.)

The court now considers three motions for summary judgment: (1) Plaintiffs' motion for summary judgment (Plf. Mot. (Dkt. # 72)); (2) the Corps' cross-motion for summary judgment (Def. Mot. (Dkt. # 75)); and (3) Intervenor-Defendant Inland Port and Navigation Group's ("IPNG") cross-motion for summary judgment (IPNG Mot. (Dkt. # 76)). The court has reviewed the motions, all submissions filed in support of and opposition to the motions, the balance of the record, and the applicable law. In addition, the court heard the oral argument of counsel on February 2, 2016. Although the parties dispute the appropriate legal outcome, all parties agree that that this action is suitable for

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disposition on summary judgment. (See Plf. Mot. at 3; IPNG Mot. at 10; Def. Mot. at 6.) Therefore, being fully advised, the court GRANTS the Corps' and IPNG's cross-motions for summary judgment and DENIES Plaintiffs' motion as discussed below.

II. BACKGROUND

The Lower Snake River federal navigation channel is located between the Snake River's confluence with the Columbia River near Pasco, Washington, and the Snake River's confluence with the Clearwater River near the Washington-Idaho border. (AR (Dkt. ## 65, 73) 50797 at 50836.)1 Congress first authorized the Corps to construct and maintain the Lower Snake River for navigation in 1945. See Flood Control Act of 1945, Pub. L. No. 97-14, 59 Stat. 10, 21 (1945). In 1962, Congress legislated that "the depth and width of the authorized channel in the Columbia-Snake River barge navigation project shall be established as fourteen feet and two hundred and fifty feet, respectively, at minimum regulated flow." Flood Control Act of 1962, Pub. L. No. 87-874, 76 Stat. 1173, 1193 (1962).

There are four multipurpose civil works locks and dam projects located on the Lower Snake River, including Ice Harbor, Lower Monumental Little Goose, and Lower Granite. (AR 50797 at 50836-37; Swanson Decl. (Dkt. # 36) Ex. 1 at 1-1.) The Corps collectively refers to these projects as the Lower Snake River Projects ("LSRP"). (Swanson Decl. Ex. 1 at 1-1.) In addition to commercial navigation, these projects serve

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purposes of power generation, recreation, fish and wildlife conservation, and incidental water supply for irrigation. (AR 50797 at 50834, 50837.)

Above these projects, the Snake River drains a 32,000 square-mile area of forested, agricultural, and developed lands. (Id. at 50838.) Sediment from this landscape has washed into and accumulated in the reservoir above Lower Granite Dam. (Id.) The Corps has historically used dredging as its primary method of removing accumulated sediment that interferes with commercial navigation on the Lower Snake River. (Swanson Decl. Ex. 1 at 1-1.)

Conflict over the Corps' management of the Lower Snake River—in particular the Corps' dredging activities—has a long history in this district. In 2002, a group of organizations, including Plaintiffs, challenged the Corps' planned dredging on the Lower Snake River. The Honorable Robert S. Lasnik entered a preliminary injunction halting the dredging at that time. 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, the parties agreed to settle their dispute. (See PI Order at 4.) 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, and the Corps agreed to conduct review under NEPA for a long-term approach to sediment management in the Lower Snake River, known as the Programmatic Sediment Management Plan ("PSMP" or "the Plan"). (See id. (citing Compl. Ex. 2 (attaching the settlement agreement)).)

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The Corps issued its Final Environmental Impact Statement ("FEIS") for the PSMP in August 2014. (See AR 50797 at 50797-1210.) The Plan creates a decision-making framework through which sediment accumulation that interferes with existing project purposes (including but not limited to navigation) can be managed and, to the extent possible, prevented. (Id. at 50834.) In creating the Plan, the Corps studied sediment accumulation areas (id. at 50840-42), as well as sediment sources, movement, and deposition in the reservoirs (id. at 50848-58). (See AR 46662 at 46676-703, 46764-77.) By holding workshops with technical experts, the Corps developed a range of management measures to address sediment accumulation. (AR 50797 at 50866.)

After its assessment, the Corps identified 24 potential sediment management measures across four different categories. (Id. at 50866-71.) The Corps created six management frameworks (and a "no action" alternative), each constituting a different "toolbox," and analyzed those frameworks in the FEIS. (Id. at 50889-904). The Corps selected "Alternative 7" as its PSMP. (AR 61037 at 61047.)

Alternative 7 includes "triggers" to identify an "immediate need" for action to address accumulated sediment and "future forecast needs" to address areas where sediment accumulation has been a problem in the past or is predicted to be a problem in the future. (AR 50797 at 50890; AR 42407 at 42429-40.) For purposes of navigation, Alternative 7 triggers an action when (1) sediment accumulation causes a portion of the navigation channel to be less than fourteen feet deep when a reservoir is at its Minimum

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Operating Pool2 and this situation impairs safe commercial navigation or access to navigation locks ("immediate need"), or (2) that scenario is forecasted to occur more than once in a five-year period ("future forecast need"). (AR 42407 at 42432.)

Alternative 7 includes a suite of fourteen potential management measures, one of which is dredging, that the Corps can employ to address either an immediate or forecasted sediment accumulation problem. (AR 50797 at 50891-92, 50898-99.) Measures other than dredging include the construction of bendway weirs and other in-water structures, reservoir drawdown to increase river velocity and flush sediment from depositional areas, sediment agitation, raising the Lewiston levees, and relocating facilities. (Id.) Thus, the management plan addresses both immediate and near-term sediment problems that may arise and "anticipated future problems before they are critical." (AR 42407 at 424411.) In this way, the PSMP provides for monitoring and planning for sediment accumulation rather than simply reacting to accumulation after it becomes a problem. (See AR 57292 at 57296-99.)

The PSMP, however, does not authorize any specific on-the-ground action. (See AR 61037 at 61037-38.) Rather, the Plan is "designed to evaluate future actions for sediment management" and provide "a roadmap for future project-specific decision-making." (AR 50797 at 50810, 50812.) Due to the programmatic nature of the PSMP,

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the Corps was required to structure the FEIS programmatically as well.3 As such, the Corps will be required to issue project-specific NEPA analyses that will tier and build from the programmatic FEIS before the Corps engages in any future dredging or other sediment management action.4

While developing the PSMP, the Corps identified two locations where sediment accumulation was already interfering with navigation—at the confluence of the Snake and Clearwater Rivers and on the downstream side of the Ice Harbor Dam's lock. (AR 60818 at 60818.) This triggered an immediate need for action under the PSMP, which the Corps referred to as "the Current Immediate Need Action" to contrast it from "immediate need actions" that may arise in the future . (See id. at 60819.) The Corps then analyzed alternatives and potential impacts associated with the Current Immediate Need Action in the same FEIS that the Corps had prepared for the PSMP.5 As a result of

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that process, the Corps concluded that "dredging and disposal presented the only measure capable of meeting the purpose and need to re-establish the federal channel to congressionally authorized dimensions to address sediment accumulation that is currently interfering with commercial navigation." (Id. at 60819.) To reestablish the federal navigation channel to the congressionally authorized...

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