Ocean Advocates v. U.S. Army Corps of Engineers
| Decision Date | 10 October 2001 |
| Docket Number | No. C00-1971L.,C00-1971L. |
| Parties | OCEAN ADVOCATES, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
John B Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, Claudia Newman, Bricklin & Gendler, Seattle, WA, for Ocean Advocates, Fuel Safe Washington, North Cascades Audubon Society, Dan Crawford, Re Sources, plaintiffs.
Brian C Kipnis, U S Attorney's Office, Seattle, WA, for U.S. Army Corps of Engineers, James M Rigsby, Colonel, Ralph H Graves, defendants.
Elaine L. Spencer, Stephen H. Goodman, Maureen Denise Burke, Graham & Dunn, Seattle, WA, for Atlantic Richfield Co., intervenor.
This is a suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, for judicial review of a federal administrative agency action. This matter comes before the Court on three motions for summary judgment filed by Ocean Advocates1, the United States Army Corps of Engineers (the "Corps") and defendant-intervenor Atlantic Richfield Company ("ARCO"). Ocean Advocates questions the Corps' issuance and extension of a permit allowing ARCO to construct a northern addition to its existing refinery dock on the shores of the Strait of Georgia at Cherry Point, Washington. It seeks declaratory, injunctive and other relief. Specifically, it requests the following declaratory relief: (1) the Corps' decision to issue and extend ARCO's permit violated the Magnuson Amendment to the Marine Mammal Protection Act, 33 U.S.C. § 476; (2) the Corps' decision not to prepare an Environmental Impact Statement ("EIS") violated the National Environmental Policy Act ("NEPA"); and (3) the Corps' decision not to issue a revised public notice and allow public comment prior to the extension of the permit violated 33 C.F.R. § 325.6 and Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403. Ocean Advocates also requests that this Court remand this matter back to the Corps with instructions to prepare an EIS, complete the public notice and comment procedures and include limiting conditions regarding the number of oil tankers in any permit issued to ARCO. Finally, Ocean Advocates seeks injunctive relief and asks the Court to freeze the amount of crude oil tanker traffic and the amount of crude oil handled pending compliance with any remand of this matter that the Court might order.
In addition to opposing Ocean Advocates' motion for summary judgment, the Corps filed a cross-motion for summary judgment, alleging its actions did not violate the Magnuson Amendment, NEPA, or Section 10 of the Rivers and Harbors Act.
Defendant-intervenor ARCO also opposes Ocean Advocates' motion for summary judgment and submits its own cross-motion for summary judgment. In addition to joining in with all of the arguments advanced by the Corps, ARCO argues that Ocean Advocates' claims regarding the Magnuson Amendment must be dismissed because of lack of standing or barred on the basis of laches.
All parties agree that no genuine issue of material fact exists for trial and that the case can be decided on motions for summary judgment. All three motions for summary judgment have been fully briefed. The Court held oral argument on all three motions on September 20, 2001. The Court has carefully reviewed the administrative record ("AR") in this matter. For the reasons stated in this Order, the Court denies Ocean Advocates' motion for summary judgment and its requests for declaratory, injunctive and other relief. The Court grants the Corps' motion for summary judgment and finds the Corps' actions did not violate the Magnuson Amendment or NEPA. The Court grants ARCO's motion for summary judgment on the merits and denies its motion for summary judgment on the issues of standing and laches. The Court finds that Ocean Advocates does not have a private right of action to pursue a claim under Section 10 of the Rivers and Harbors Act, and even it did, would not succeed on the merits.
In Part I of this Order, the Court provides a detailed factual background regarding the permit process for ARCO's dock extension. In Part II, the Court addresses the threshold issue of standing, the defense of laches and the standard of review. In Part III, the Court considers whether the Corps' decision to issue and extend the ARCO permit constitutes a violation of the Magnuson Amendment. In Part IV, the Court analyzes whether the Corps' decision not to prepare an EIS is a violation of NEPA. In Part V, the Court analyzes Ocean Advocates' claim under Section 10 of the Rivers and Harbors Act. In Part VI, the Court addresses the various forms of relief sought by the parties.
Cherry Point is a "heavy impact industrial" zoning area and currently has three major industrial facilities: the ARCO refinery, the ALCOA Intalco aluminum plant and the Tosco refinery. AR 1052, 1569. In addition, there is a proposal to build a bulk commodities pier, the Gateway Pacific Terminal, one mile south of the ARCO refinery. See AR 1283, 1297, 1494.
On January 20, 1969, the Corps issued the initial permit to ARCO. In 1971, ARCO constructed its refinery at Cherry Point, Washington in order to refine Alaskan North Slope crude oil. See AR 1086. At that point, ARCO decided to build only the southern half of the dock. See AR 1090. Construction of the northern dock was postponed until the southern dock reached capacity or until the loading and unloading hampered refinery operations. See id. The ARCO pier is an L-shaped structure that is about 227 feet long by 65 feet wide, accessible from the shore by a 1,800 foot trestle. See AR 1093. The southern dock was constructed to off-load crude oil, has a maximum receiving capability of 1,200,000 barrels per day and has a current refinery rate of 230,000 barrels per day.
On May 5, 1992, ARCO submitted an application for a permit to construct the northern half of the dock at issue in this lawsuit. See AR 164-65. The dock extension would double the berthing capacity of the dock by adding a new wing extending about 950 feet to the west of the existing pier. See AR 1576-77. The Corps gave public notice of ARCO's application on June 3, 1992. See AR 122-33. The Corps received substantive remarks from the U.S. Fish and Wildlife Service ("FWS"), the Lummi Indian Nation and the Nooksack Indian Tribe. FWS expressed a concern about the cumulative impact of this project along with other proposed industrial projects in the area with regard to an increased risk of an oil spill. It was also concerned about the project's impact on benthic vegetation. See AR 110-12.
ARCO responded to FWS' concerns by explaining that the dock extension would reduce the risk of an oil spill because oil tankers would not be waiting in the Cherry Point area for a long period of time before they were offloaded. ARCO also explained that the dock extension would have no effect on benthic vegetation. The shading from the dock would not impact benthic vegetation because such plant life does not rely on sunlight for its existence. See AR 64-66. The Lummi Indian Nation and the Nooksack Indian Tribe initially expressed concern regarding their federal fishing rights. ARCO entered into mitigation agreements with both tribes and the tribes withdrew their objections to the dock extension. See AR 53-55, 384-85.
In the meantime, the marbled murrelet was added to the list of threatened species under the Endangered Species Act ("ESA"). The Corps asked ARCO to submit information on whether its project would affect these birds. On November 3, 1993 and again on June 15, 1995, ARCO submitted reports regarding the effect of the dock extension on marbled murrelets and other marine birds in the area. See AR 21-35, 956-87. After confirming that there would be no impact on the marbled murrelets, the Corps also sought and received confirmation from ARCO that eelgrass beds (habitat for spawning herring and juvenile salmon) would not be affected.
On March 1, 1996, the Corps issued ARCO a permit under Section 10 of the Rivers and Harbors Act, allowing it to construct the new wing to serve as a "petroleum product loading/unloading facility." See AR 344. The construction was to be completed in five years, by March 1, 2001. The Corps also issued a Finding Of No Significant Impact ("FONSI") and an Environmental Assessment ("EA").
In October 1997, Ocean Advocates wrote to the Corps, expressing concerns as to whether the 1996 permit issued to ARCO violated the Magnuson Amendment. See AR 318. Ocean Advocates requested that the Corps reopen the permit review for an analysis of cumulative impacts. The Corps denied the request and erroneously stated that the refinery was at capacity and that the construction of the dock extension would therefore not result in an increase of the volume of crude oil handled at the facility. See AR 316. On September 29, 1999, Ocean Advocates' counsel wrote to the Corps, asking for reconsideration of the 1996 permit. See AR 292-95. Ocean Advocates stated the refinery was not at capacity (as the Corps erroneously concluded), that the cumulative impact of increased vessel traffic should be examined, and the Magnuson Amendment issue should be revisited. See AR 293-95. The Corps requested more information from Ocean Advocates regarding ARCO's refinery capacity and a copy of the July 1999 Screening Level Ecological Risk Assessment ("SLERA") issued by the Washington Department of Natural Resources ("DNR").2 See AR 241. On November 11, 1999, Ocean Advocates supplied the Corps with information on ARCO's refinery. See AR 241-51. On March 9 and 20, 2000, ARCO submitted letters to the Corps to respond to Ocean Advocates' comments regarding the Magnuson Amendment. See AR 218, 1508.
Around March 2000, ARCO requested a one-year extension of 1996 permit in order to complete construction of the dock...
To continue reading
Request your trial
-
Ocean Advocates v. U.S. Army Corps of Engineers
...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 ......
-
U.S. v. City of Detroit
...evidence of a congressional intent to prohibit review in the Rivers and Harbors Act."). See also Ocean Advocates v. U.S. Army Corps of Engineers, 167 F.Supp.2d 1200, 1203 (W.D.Wash., 2001) (reviewing the Army Corps' actions under the APA for compliance with the National Environmental Policy......
-
Ocean Advocates v. U.S. Army Corps of Engineers
...BP's request for a permit extension did not require a period of public notice and comment. See Ocean Advocates v. United States Army Corps of Engineers, 167 F.Supp.2d 1200 (W.D.Wash. 2001). The district court also denied BP's summary judgment motion with respect to claims that OA did not ha......