Pac. Coast Shellfish Growers Ass'n v. U.S. Army Corps of Eng'rs

• Decision Date: 24 May 2016
• Docket Number: CASE NO. C16-193RAJ
• Court: U.S. District Court — Western District of Washington
• Parties: PACIFIC COAST SHELLFISH GROWERS ASSOCIATION, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

PACIFIC COAST SHELLFISH GROWERS ASSOCIATION, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

CASE NO. C16-193RAJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

May 24, 2016

HONORABLE RICHARD A. JONES

ORDER

I. INTRODUCTION

This matter comes before the Court on Plaintiff Pacific Coast Shellfish Growers Association (the "Pacific Growers") and Defendant United States Army Corps of Engineers' (the "Corps") cross-motions for summary judgment. Dkt. # 4 & 13. For the reasons set forth below, the Court DENIES the Pacific Growers' motion and GRANTS the Corps' motion.

II. BACKGROUND

The Pacific Growers' requested a copy of the Programmatic Biological Assessment for Shellfish Activities in Washington State Inland Marine Waters (the "Shellfish PBA") from the Corps pursuant to the Freedom of Information Act ("FOIA"). The Corps prepared the Shellfish PBA - and specifically the most recent, October 2015 draft - for the U.S. Fish and Wildlife Service ("USFWS") and National Marine Fisheries Service ("NMFS") (collectively, the "Services") in connection with an ongoing programmatic consultation with those agencies. That consultation is intended to lead to the issuance of biological opinions by those agencies pursuant to the Endangered Species Act ("ESA") and the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"). See Dkt. # 15 (Bennett Decl.) ¶¶ 1, 3.

The Corps exercises regulatory authority over the inland marine waters of Washington State pursuant to Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, and Section 10 of the River Harbor Act of 1899, 33 U.S.C. § 403. See also Wild Bainbridge v. Mainlander Servs. Corp., 544 F. Supp. 2d 1159, 1163 (W.D. Wash. 2008) (citing Res. Invs., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162, 1166 (9th Cir. 1998)). Specifically, "Section 404 of the CWA prohibits the discharge of 'dredged or fill material' into navigable waters without a permit issued by the Corps." See Wild Bainbridge, 544 F. Supp. 2d at 1163 (quoting 33 U.S.C. § 1344); see also Dkt. # 15 (Bennett Decl.) ¶ 5.

The Corps takes the position that its permitting actions must comply with the ESA. See Dkt. # 15 (Bennett Decl.) ¶ 8. "Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652 (2007). Section 7(a)(2) of the ESA requires federal agencies to consult with the Services before taking federal actions that may affect an ESA-listed species or designated critical habitat. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b); see also Butte Envtl. Council v. U.S. Army Corps of Eng'rs, 620 F.3d 936, 940-41 (9th Cir. 2010). At the conclusion of such a consultation, the Services must prepare a written statement setting forth their opinion "and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." See 16 U.S.C. § 1536(b)(3)(A); see also 50 C.F.R. § 402.14(h).

Additionally, the Corps must comply with the MSA for federal actions that may adversely affect Essential Fish Habitats ("EFH") in waters that it regulates. See Dkt. # 15(Bennett Decl.) ¶ 9; see also 16 U.S.C. 1855(b)(2). When a proposed action may adversely affect an EFH, the federal agency must consult with NMFS. See 16 U.S.C. § 1855(b)(2); 50 C.F.R. § 600.920. EFH has been designated for several species in Washington State's inland marine waters, including for Pacific salmon, coastal pelagic species, and groundfish. See Dkt. # 15 (Bennett Decl.) ¶ 9. The Corps therefore cannot issue a permit for a proposed activity until a District Engineer of the Corps determines that the requirements of the EFH provisions of the MSA have been met. See id.

Typically, the information necessary for an evaluation required by the ESA or MSA is prepared by the permit applicant in the form of a biological evaluation or biological assessment. See id. ¶ 10. This information may cover whether listed species are present, habitat for such species and their prey sources, or other parameters impacts to listed or proposed species and designated or proposed critical habitat. See id.; see also 50 C.F.R. § 402.12(a). Whatever the case, after deeming it adequate, the Corps typically uses the biological assessment in assessing the project, determining whether the project may affect listed species or their critical habitat or if it will adversely EFH. Id. If the Corps determines that a permit application will not have an effect, then no further consultation with the Services is typically necessary. See 50 C.F.R. § 402.14(b)(1). If the Corps determines that a proposed project will affect an endangered species, critical habitat, or the like, then it must consult with the relevant Service. See id.; see also Dkt. # 15 (Bennett Decl.) ¶ 10.

In determining whether a formal consultation is necessary, however, the regulations permit agencies to informally consult with the relevant Service. See 50 C.F.R. § 402.13(a). During such an informal consultation, "the Service may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat." Id. § 402.13(b). Ultimately, if it is determined that an agency action may affect a listed species or critical habitat, a formal consultation is required. See id. § 402.14(a). During such aformal consultation, the Service typically must prepare a biological opinion. See id. § 402.14(g)(4), (h),

To streamline its permitting process, agencies may engage in "programmatic consultation" which "concerns planning documents and other scenarios in which an agency is preparing to undertake a number of later, similar actions, the specifics of which have not yet been defined." See Ctr. for Sierra Nevada Conservation v. U.S. Forest Serv., 832 F. Supp. 2d 1138, 1144 (E.D. Cal. 2011) (citing Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1062 (9th Cir. 2004); Pac. Coast Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 482 F. Supp. 2d 1248, 1267 (W.D. Wash. 2007); Buckeye Forest Council v. U.S. Forest Serv., 378 F. Supp. 2d 835, 843-44 (S.D. Ohio 2005)). In doing so, the Corps generates a programmatic biological assessment ("PBA") without reference to any specific permit applications and the Services generate a programmatic biological opinion ("PBO"). See Dkt. # 15 (Bennett Decl.) ¶ 12. Ultimately, through this process, after the issuance of a PBO, if a proposed work activity in a permit application meets the activities evaluated considered under the scope of the PBO, then the Corps may rely on the PBO without any further consultation requirements. See id. If a proposed work activity in a permit application does not fall under the scope of the PBO, then the Corps must conduct the consultation process on an individual basis with the Services. See id.

The Seattle District of the Corps decided to go through a programmatic process with the Services after receiving more than 1000 permit applications for shellfish activities since 2007.¹ See id. ¶ 15. In 2013, to relieve its workload and streamline the permitting process, the Seattle District began pursuing a programmatic consultation withthe Services for a range of shellfish activities in Washington State marine waters rather than only for NWP 48. Id. ¶ 16. The Corps and Services began preparing the Shellfish PBA through a process called the Standard Local Operating Procedures for Endangered Species. Id. ¶ 17. The Corps and the Services have, apparently, tried to keep their work confidential. Id. However, they have at times sought input from stakeholders. See id.

The Corps has revised the Shellfish PBA several times since starting the process. See id. ¶¶ 20, 23. And the Services and Corps have routinely corresponded and met to discuss the Shellfish PBA. See id. ¶ 20. The Corps also involved the Environmental Protection Agency ("EPA") in the process. See id. ¶ 21. Ultimately, these consultations resulted in the October 30, 2015 version of the Shellfish PBA at issue here. Id. ¶ 23. Individual sections of the Shellfish PBA were distributed to the Services throughout the process as those sections were exchanged among the members of the technical teams for review and comment. Id. ¶ 24. The consultation process is ongoing. Id. ¶ 25.

The Pacific Growers made their FOIA request to the Corps on November 20, 2015, seeking a copy of the October 2015 draft Shellfish PBA. See Dkt. # 6 (Carr Decl.) Ex. 1 at 2-3. The Corps denied the Pacific Growers' request on December 22, 2015 stating that the document as being withheld as predecisional because the Section 7 ESA consultation had not completed. See id. Ex. 4 at 11. The Pacific Growers filed an administrative appeal the next day. See id. Ex. 5. The Corps did not act on the appeal and, ultimately, the Pacific Growers filed this suit.

III. LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the opposing party must set forth specific...