Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng'rs, Case No. 3:10-cv-01129-AC

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtJohn Acosta
PartiesNORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, a United States Government Agency; NATIONAL MARINE FISHERIES SERVICE, a part of the National Oceanic and Atmospheric Administration, a part of the United States Department of Commerce, Defendants
Decision Date27 March 2013
Docket NumberCase No. 3:10-cv-01129-AC

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, a United States Government Agency;
NATIONAL MARINE FISHERIES SERVICE, a part of the National Oceanic
and Atmospheric Administration, a part of the United States Department of Commerce, Defendants

Case No. 3:10-cv-01129-AC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

Dated: March 27, 2013


OPINION AND ORDER

ACOSTA, Magistrate Judge:

Plaintiff Northwest Environmental Defense Center ("NEDC") brought this action against the United States Army Corps of Engineers ("Corps") and the National Marine Fisheries Service ("NMFS") (collectively, "defendants"), challenging the Corps' issuance of a five-year regional general permit ("RGP"), which authorizes limited commercial in-stream gravel mining on the Chetco River in southwest Oregon. In its Amended Complaint, NEDC alleges the Corps violated the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 et seq., the Federal Water Pollution Control Act (commonly known as the Clean Water Act ("CWA")), 33 U.S.C. § 1251(a)

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et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., in issuing the RGP. NEDC also alleges that NMFS's Biological Opinion ("BiOp") for the RGP and its attendant Incidental Take Statement ("ITS") violate the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. The parties have cross-moved for summary judgment on all claims. Oral argument was heard on January 29, 2013. For the following reasons, NEDC's Motion for Summary Judgment [94] is granted in part and denied in part, and defendants' Cross Motion for Summary Judgment [102] is granted in part and denied in part.

Standards

Summary judgment is appropriate "if 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) (2011). When reviewing an agency's final decision, the court's duty on summary judgment is to determine whether the evidence in the administrative record permitted the agency to make that decision as a matter of law. Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). This review is governed by the APA's arbitrary and capricious standard. 5 U.S.C. § 706(2)(A) (2006); Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1235 (9th Cir. 2001).

The court may set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To determine whether an agency decision is arbitrary and capricious, the court should "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). After considering the relevant factors, the agency must articulate a satisfactory explanation for its action, including a rational connection

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between the facts found and the agency's conclusions. Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir. 2008); Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir. 2007) (citation omitted). Even if an agency decision is based on "admittedly weak best available science," the court is not allowed to "substitute [its] judgment for that of the agency." ALCOA v. BPA, 175 F.3d 1156, 1160-61 (9th Cir. 1999). Courts are not to "act as a panel of scientists, instructing the agency, choosing among scientific studies, and ordering the agency to explain every possible scientific uncertainty." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), abrogated on other grounds by Winter v. Natural Res. Def. Ctr., 555 U.S. 7 (2008) (internal quotation marks and brackets omitted). Under the arbitrary and capricious standard of review, an agency's decision "need only be reasonable, not the best or most reasonable, decision." River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010).

Background

I. Overview of FACA

FACA was enacted to provide oversight for the use of "numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government." 5 U.S.C. App. 2(a). An "advisory committee" means "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . (C) established or utilized by one or more (federal) agencies . . . in the interest of obtaining advice or recommendations" for a federal agency. Id. at App. 2 § 3(2). Committees comprised entirely of agency employees are not subject to the strictures of FACA. Id. However, for advisory committees falling within the purview

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of the Act, FACA imposes numerous public-disclosure, reporting, and balancing requirements. Id. at App. 2 §§ 5, 10. Among other requirements, an advisory committee must be fairly balanced with respect to the points of view represented by its members, its meetings must be open to the public, and its records must be available for public inspection. Id.

II. Overview of NEPA

NEPA requires federal agencies "to the fullest extent possible," to prepare a "detailed statement on . . . the environmental impact" of "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i); see also 40 C.F.R. § 1500.2. The purpose of NEPA is two-fold: (1) to ensure the agency "will have available, and will carefully consider, detailed information concerning significant environmental impacts" of its decisions; and (2) to guarantee that this information will be available to the public. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA does not mandate particular results, but simply proscribes the necessary process. Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).

III. Overview of the CWA

The purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 301 of the CWA prohibits, subject to certain exceptions, "the discharge of any pollutant by any person" into the Nation's navigable waters. Id. at § 1311(a). "Pollutant" is defined to include, among other things, dredged spoil, rock, and sand. Id. at § 1362(6). Section 404 of the CWA authorizes the Corps to issue permits, on an individual or general basis, for the discharge of dredged or fill material into navigable waters. Id. at § 1344.

IV. Overview of the ESA

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The purposes of the ESA are to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation" of such species. 16 U.S.C. § 1531(b).

Section 7(a)(2) of the ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification" of such species' critical habitat. Id. at § 1536(a)(2). Whenever a federal agency, such as the Corps, determines that a proposed action "may affect listed species or critical habitat," that agency must prepare a biological assessment on the effects of the action and consult with NMFS (or depending on the species, the Fish and Wildlife Service) to determine whether the agency action is likely to result in jeopardy to that species or its critical habitat. 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a). Once consultation is initiated, NMFS is responsible for reviewing all relevant information and formulating a BiOp as to whether the action is likely to result in jeopardy to a listed species. 50 C.F.R. § 402.14(g). In making this determination, the Corps must provide the Services with a biological assessment, and the Services "shall use the best scientific and commercial data available." 50 C.F.R. § 402.14(a); 16 U.S.C. § 1536(a).

If NMFS determines that an agency's action is likely to jeopardize the continued existence of a listed species, NMFS must suggest reasonable and prudent alternatives to the proposed action, if any exist, that would not result in such jeopardy. 16 U.S.C. § 1536(b)(3). On the other hand, if NMFS concludes that a proposed action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, but determines that the action will nevertheless result in the take of listed species, NMFS must issue an ITS. Id. at §

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1536(b)(4). An ITS authorizes the limited take of listed species that would otherwise violate § 9's "take" prohibition, establishes the limit of any taking of the species, and specifies measures to minimize take. Id.; 50 C.F.R. § 492.14(i). If during the course of the subject action, the amount or extent of incidental take is exceeded, the action agency must reinitiate formal consultation pursuant to § 7(a)(2). 50 C.F.R. § 402.16(a).

V. Factual Overview

The Chetco River, in southwest Oregon, is designated critical habitat for Southern Oregon/Northern California Coasts ("SONCC") coho salmon, which are listed as threatened...

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