Ocean Advocates v. U.S. Army Corps of Engineers

Decision Date15 March 2004
Docket NumberNo. 01-36133.,No. 01-36144.,01-36133.,01-36144.
Citation402 F.3d 846
PartiesOCEAN ADVOCATES, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Ralph H. Graves, Defendants-Appellees, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellee. Ocean Advocates, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellees, v. United States Army Corps of Engineers; Ralph H. Graves, Defendants-Appellants, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John B. Arum, Seattle, WA, for the plaintiff-appellant.

Claudia M. Newman, Seattle, WA, for the plaintiff-appellant.

Elaine Spencer, Seattle, WA, for the defendant-intervenor-appellee/cross-appellant.

Ronald M. Spritzer, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-00-01971-RSL.

Before D.W. NELSON, THOMAS, Circuit Judges, and PREGERSON, District Judge.*

ORDER

The opinion filed on March 15, 2004, appearing at 361 F.3d 1108 (9th Cir.2004) is amended as follows: Page 3151, lines 1-2: delete "See Public Citizen v. Dep't of Transp., 316 F.3d 1002, 1014 (9th Cir.2003)."

Page 3164, line 7: replace "dock" with "refinery"

Page 3167, lines 6-14: replace "With the dock extension, though, the BP facility can handle additional traffic beyond what market forces might bring about alone. The New platform facilitates an increase in tanker traffic and is a "but for" cause of this increase in tanker traffic even if it is not the sole source of the increase. Public Citizen, 316 F.3d at 1024 (holding that even where "it is impossible to separate" the causes of increases in traffic, the influence of the challenged activity on increased traffic is still an important causal effect)." with "With the dock extension, though, the BP facility can handle even greater increases in traffic, should market forces dictate such increases. Because a "reasonably close causal relationship" exists between the Corps' issuance of the permit, the environmental effect of increased vessel traffic, and the attendant increased risk of oil spills, the Corps had a duty to explore this relationship further in an EIS. Dep't of Transp. v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2215, 159 L.Ed.2d 60 (Jun. 7, 2004) (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983))."

Page 3170, line 18: insert the following two new paragraphs after the paragraph ending "impacts accurately.": "In granting summary judgment for the Corps and BP on OA's environmental claims, the district court found that NEPA did not require an EIS because the pier extension was intended to alleviate existing tanker traffic, which would increase due to market forces with or without the extension." To reach this decision, the district court erroneously determined that the intent of the dock extension was to deal with existing traffic and analogized to our decisions in Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir.1998), and Seattle Community Council Federation v. FAA, 961 F.2d 829 (9th Cir.1992), where the purpose of the proposed project was to increase efficiency and safety. Ocean Advocates, 167 F.Supp.2d at 1212-13. Here, however, neither the Corps nor BP has proven that the purpose of the pier extension is primarily to increase efficiency and safety. Instead, the 1996 permit states that the "Need and Purpose" of the project is to "expand a petroleum product loading/ unloading facility." Neither the 2000 amended permitting decision nor BP's form application for a permit indicates that the central purpose of the project is to increase safety or efficiency. Morongo and Seattle Community Council Federation are also distinguishable because neither case dealt with any change in ground capacity. In both cases, the increased flight volume was a function of new routes into the same airport terminal, whereas in this case whatever increase in tanker traffic may occur results from the expansion of the pier itself.

"Finally, our cases applying a "growth-inducing" analysis to highway construction projects do not require a different result. In City of Carmel-By-The-Sea v. U.S. Department of Transportation, 123 F.3d 1142 (9th Cir.1997), we held that a proposal to build a new bridge, two new interchanges, and to widen an intersecting road was necessitated by existing development and did not require further analysis in the EIS because whatever growth may occur was already accounted for and analyzed by local officials' planning documents. Id. at 1162-63. Here, by contrast, even if we found that the pier expansion was necessitated by existing development, the foreseeable growth in tanker traffic has not been accounted for in any other planning documents."

Page 3171, line 8: insert "No such analysis is evident in the EA, nor is there a "`justification regarding why more definitive information could not be provided.'" Blue Mountains, 161 F.3d at 1213 (quoting Neighbors of Cuddy Mountain, 137 F.3d at 1380)." after "in the area."

Page 3172, line 33: insert "We decline to reach a decision on injunctive relief. Instead, we remand to the district court to consider this question in the first instance, including whether OA has made the requisite showing for injunctive relief, what harm BP may suffer under an injunction, and the impact of such an injunction on the public." After "remedy OA's harm."

Page 3179, lines 8-14: replace "The district court also should enter an injunction freezing tanker traffic to and from the BP refinery at pre-2000 levels until the Corps prepares an EIS and reassesses the permit under the Magnuson Amendment. See Metcalf, 214 F.3d at 1146; Nat'l Parks, 241 F.3d at 739. The district court first will have to determine pre-2000 tanker traffic levels. Id." with "We also REMAND this case to the district court to consider OA's request for injunctive relief. On remand on this question, the district court should conduct an evidentiary hearing to consider whether the pier extension would increase vessel traffic beyond the increase produced by market forces and what harms BP may suffer under an injunction."

With this amendment, the members of the panel that decided this case voted unanimously to deny Appellee's petition for rehearing. Judge Thomas voted to deny the petitions for rehearing en banc. Judges D. Nelson and D. Pregerson recommended denial of the petitions for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed. R.App. P. 35.)

The petitions for rehearing/rehearing en banc filed on May 24, 2004, and June 4, 2004, are hereby DENIED.

Subsequent petitions for panel rehearing or petitions for rehearing en banc may be filed.

OPINION

D.W. NELSON, Senior Circuit Judge.

Ocean Advocates (OA), an environmental group, appeals a summary judgment ruling in favor of the U.S. Army Corps of Engineers (the Corps) and BP West Coast Products (BP).1 OA challenges the issuance and extension of a permit allowing BP to build an addition to its existing oil refinery dock in Cherry Point, Washington. OA argues that the district court erred in granting summary judgment to the Corps and BP, insisting that the permit violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and the Magnuson Amendment to the Marine Mammal Protection Act (MMPA), 33 U.S.C. § 476. BP cross-appeals the district court's denial of its motion for summary judgment on grounds that OA lacks standing and that laches bars this action.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND
I. Cherry Point Marine Terminal

Cherry Point is an approximately ten-mile stretch of coastline located in the Strait of Georgia in northeast Puget Sound. It has been described as "a shoreline of statewide significance," by the Whatcom County Hearing Examiner.

BP first constructed a refinery to process Alaskan North Slope crude oil in Cherry Point, south of Point Whitehorn, in 1971. The 1969 permit authorizing this project allowed BP to construct a dock to which tankers would deliver crude oil.

The dock design included two platforms: one for unloading crude oil and one for loading refined product. Just before construction began, BP opted to build only the southern platform and deferred building the northern platform until production at the refinery reached capacity or the loading and unloading of tankers began to interfere with refinery operations. Physical adjustments enabled the southern platform both to unload crude oil and to load refined product so that the dock could function as it would have with both platforms.

BP sought to have the 1969 permit reopened in 1977 so that it could complete the original design of the pier by building the northern platform. Because of the time lapse between granting the original permit and the request to reopen, the Corps required BP to submit a new permit application that would be subject to public notice and comment. BP withdrew the application.

II. The Permit at Issue

BP again applied for a permit to build the...

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