National Wildlife v. National Marine Fisheries

• Decision Date: 12 December 2002
• Docket Number: No. C02-2259L.,C02-2259L.
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

235 F.Supp.2d 1143

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

No. C02-2259L.

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

December 12, 2002.

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Todd D. True, EarthJustice Legal Defense Fund, Seattle, WA, Jan Erik Hasselman, Nat. Wildlife Federation, Seattle, WA, for plaintiffs.

Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Fred R. Disheron, Ruth Ann Lowery, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for defendants.

Julie Sobotta Kane, David J. Cummings, Office of Legal Counsel, Lapwai, ID, for Nez Perce Tribe of Idaho, interested party.

B. Scott Whipple, Brian J. King, Schwabe, Williamson & Wyatt, Portland, OR, for Lower Granite Navigation Coalition.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on a preliminary injunction motion filed by plaintiffs National Wildlife Federation, et al. ("Plaintiffs"). Plaintiffs seek a preliminary injunction against defendants U.S. Army Corps of Engineers (the "Corps") and the National Marine Fisheries Service ("NMFS")¹ (collectively, "Defendants"). Specifically, Plaintiffs seek to enjoin the Corps from commencing dredging and dumping of the dredge spoils in the lower Snake River and to enjoin NMFS from proceeding with the authorization of any "incidental take" of certain salmonid species listed under the Endangered Species Act ("ESA") that Plaintiffs allege would otherwise occur if the Corps proceeds with the planned dredging. For the reasons set forth in this Order the Court grants Plaintiffs' preliminary injunction motion.²

II. FACTS

The Corps operates and maintains a series of dams in the Columbia-Snake River inland navigation waterway, which includes the Ice Harbor, Lower Monumental, Little Goose, and Lower Granite Reservoir on the Snake River, and McNary Reservoir on the Columbia River and three other dams on the lower Columbia River. See Dredged Material Management Plan and Environmental Impact Statement (July 2002) ("DMMP/EIS") at ES-1.³ The dams on the Columbia and Snake Rivers provide hydroelectric power generation and permit navigation from the mouth of the Columbia River to port facilities on the Snake and Clearwater Rivers in Lewiston, Idaho and Clarkston, Washington. Id. In addition to maintenance of the dams, the Corps maintains a navigation channel through the reservoirs. Id.

The DMMP is the Corps' twenty-year "programmatic plan" for maintenance of the navigation channel, maintenance of public facilities within the reservoirs, management of dredged materials from the reservoirs, and maintenance of flow conveyance capacity at the most upstream extent of the Lower Granite Reservoir. Id. The Corps anticipates dredging in the navigation channel and public recreation areas every other year for the next twenty years "for a total volume of up to 3,400,000 cubic yards ... of dredged material." DMMP/EIS at 2-11. A primary use of the dredged material is to create a "woody riparian habitat" for juvenile fall chinook salmon. DMMP/EIS at 2-42. Other uses may include fill and potting soil. Determination of how to utilize the dredged material will be made by the Corps, with input from the Local Sediment Management Group ("LSMG"). Hasselman Decl. Ex. 3, Record of Decision ("ROD") at 7. In addition to dredging and disposal of the dredged materials, the DMMP calls for raising by three feet the Snake River levee system through Lewiston, Idaho. DMMP/EIS at 2-26.

The DMMP also includes specific actions to be undertaken in the winter of 2002-03, which include dredging the navigation channel at the confluence of the Snake and Clearwater Rivers, port facilities in the Lewiston-Clarkston area, recreational facilities in the Lower Granite and Little Goose Reservoirs, and the navigation lock approaches to the Lower Granite and Lower Monumental Dams. DMMP/EIS at N-3. Dredged material will be used to create a "woody riparian area" and/or a "shallow water habitat" in the Lower Granite Reservoir. ROD at 8.

While developing the DMMP the Corps considered the requirements of several potentially applicable environmental laws and regulations. See DMMP/EIS § 5. Plaintiffs argue that in the course of developing the DMMP, the Corps failed to consider reasonable alternatives to the proposed action, as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4332(2)(C)(iii), (E). Specifically, Plaintiffs argue that the Corps failed to consider strategies to reduce the heavy inflow of sediment into the Lower Granite Reservoir by encouraging better upstream practices, strategies to use partial, temporary reservoir drawdowns and increased flows to "flush" sediment downstream, and strategies that would require the use of lighter loaded barges to reduce the need for dredging. (Motion at 6). Additionally, Plaintiffs allege that the Corps' economic analysis regarding the DMMP is fundamentally flawed. Id. at 9. Finally, Plaintiffs argue that NMFS violated the ESA and the Administrative Procedure Act ("APA") by issuing an invalid biological opinion. Id. at 11.

The Corps argues that, as a threshold matter, only the 2002-03 dredging component of the DMMP constitutes "final agency action" for purposes of judicial review pursuant to the APA.⁴ (Response at 2, 22). The Corps insists that given the project's stated purpose and need, it considered the reasonable range of feasible alternatives. Id. at 28. Defendants also argue that the Corps' cost-benefit analysis is sound and that the NMFS biological opinion complies with governing law. Id. at 32-34, 38-40. For these reasons Defendants maintain that issuance of a preliminary injunction is inappropriate.

III. DISCUSSION

A. Preliminary Injunction Standard.

In the Ninth Circuit issuance of a preliminary injunction is appropriate when a plaintiff demonstrates (1) the combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions regarding the merits and the balance of hardships tip sharply in its favor. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992) (citations omitted). These are not separate tests, but rather represent a continuum of equitable discretion "in which the required probability of success on the merits decreases as the degree of harm increases." Westlands Water Dist. v. Natural Res. Def. Council, 43 F.3d 457, 459 (9th Cir.1994). Furthermore, "[i]n cases where the public interest is involved, the district court must also examine whether the public interest favors the plaintiff." Fund for Animals, 962 F.2d at 1400.

B. Administrative Procedure Act Standard of Review.

Pursuant to the preliminary injunction test, the Court must evaluate Plaintiffs' likelihood of success on the merits. For purposes of that inquiry, Defendants' final agency actions made pursuant to the ESA or NEPA are reviewed in accordance with the APA. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981-82 (9th Cir.1985).

A court may disturb an agency's final action only if that final action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard is "highly deferential, presuming agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000). A reviewing court must not "substitute its judgment for that of the agency" concerning the proposed action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Rather, a court must determine whether the decision was "based on a consideration of relevant factors" and whether "the agency has taken a `hard look' at the environmental consequences of its proposed action." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998). The standard does not shield the agency from a "thorough, probing, in-depth review." Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1473, 1476 (W.D.Wash.1992) (quoting Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814).

An agency seeking to justify its action may not offer a new explanation for the action, but must be judged on the rationale and record that led to the decision. City of Kansas City, Missouri v. Department of Hous. & Urban Dev., 923 F.2d 188, 192 (D.C.Cir.1991) ("arbitrary and capricious review ... demands evidence of reasoned decisionmaking at the agency level; agency rationales developed for the first time during litigation do not serve as adequate substitutes").

C. Agency Action Subject to Review.

The Corps argues that Plaintiffs' challenge to the DMMP is premature because the only Corps action sufficiently final for review is the dredging proposed for the winter of 2002-03. (Response at 5-6, 22-23). The Corps insists that because certain specific elements of the DMMP are "still under development" those elements of the DMMP other than the winter of 2002-03 dredging "are not properly the subject of judicial review by this Court at this time." Id. at 5-6, 22-23 (citing Lujan v. National Wildlife Fed., 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)); see also Sands Decl. ¶ 33 ("The specific details of future dredging activities and beneficial uses are not known at this time .... However, specific information for the first year's dredging and disposal is available and that information is included in the DMMP/EIS Appendix N and modified in later documents, such as the DMMP ROD.").

Despite the argument present in Defendants' Response and Mr. Sands' statement that the only "specific details" known are for the 2002-03 winter dredging, there is scant support in the record...