Save Arnold Canal v. Arnold Irrigation Dist.

• Docket Number: 6:22-cv-01462-MK
• Decision Date: 24 August 2023
• Parties: SAVE ARNOLD CANAL, an Oregon Non-Profit Corporation, R. MARK ELLING; JEROME RUDLOFF; DEBRA RUDLOFF; RALPH H. EMERSON III, Plaintiffs, v. ARNOLD IRRIGATION DISTRICT; RONALD ALVARADO, in his official capacity as State Conservationist, Natural Resources Conservation Service, United States Department of Agriculture; and NATURAL RESOURCES CONSERVATION SERVICE, a federal agency of the United States Department of Agriculture, Defendants.
• Court: U.S. District Court — District of Oregon

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SAVE ARNOLD CANAL, an Oregon Non-Profit Corporation, R. MARK ELLING; JEROME RUDLOFF; DEBRA RUDLOFF; RALPH H. EMERSON III, Plaintiffs, v. ARNOLD IRRIGATION DISTRICT; RONALD ALVARADO, in his official capacity as State Conservationist, Natural Resources Conservation Service, United States Department of Agriculture; and NATURAL RESOURCES CONSERVATION SERVICE, a federal agency of the United States Department of Agriculture, Defendants.

No. 6:22-cv-01462-MK

United States District Court, D. Oregon

August 24, 2023

OPINION & ORDER

Michael J. McShane, United States District Judge

Plaintiffs are property owners and a nonprofit corporation wishing to preserve the irrigation canals that run through their property in Central Oregon. Plaintiffs argue: “Piping the Arnold Main Canal would eliminate a century-old dependence of seasonal water by local wildlife, vegetation trees, and aesthetic enjoyment by the residents of the canal.” Pls.' Memo. 29, ECF No. 50. To that end they seek a preliminary injunction that would halt implementation of the Arnold Irrigation District Infrastructure Modernization Project (“The Project”). The Project will replace the openair canals with 48-60-inch high-density polyethylene piping.

Plaintiffs contend that the Natural Resources Conservation Service (“NRCS”) and Ronaldo Alvardo (collectively, “Federal Defendants”) have violated the National Environmental Policy Act (“NEPA”). Next, they allege that the Arnold Irrigation District (“Irrigation District”) is violating state law related to private nuisance and permissible right of way. Because Plaintiffs have not established the likelihood that they will succeed on the merits of their claim, that an injunction is in the public interest, or that the balance of equities tips in their favor, Plaintiffs' Motion for Preliminary Injunction, ECF No. 50, is DENIED.

FACTUAL BACKGROUND

The Project is a joint effort between the Irrigation District and the NRCS. In June 2021, the NRCS issued a draft environmental assessment (“EA”) and invited public comment. In August 2022, the NRCS published a final EA examining the Project. AR-00015-166. Later that month, the NRCS issued its Finding of No Significant Impact (“FONSI”) regarding the Project. AR-0001-5. The FONSI constituted “final agency action” subject to this Court's review. Admin. Procedure Act (“APA”), 5 U.S.C. § 704.

“The purpose of this project is to improve water conservation in District-owned infrastructure, improve water supply management and delivery reliability to District patrons, and improve public safety on up to 11.9 miles of the District-owned Main Canal.” AR-00024. The EA provided additional background on why piping would help the Irrigation District meet its goal of supplying sufficient amounts of water to meet the needs of its patrons:

Aging infrastructure, growing population, shifting rural economies, and changing climate conditions have increased pressure on water resources across the western United States. Within the Deschutes Basin, irrigated agriculture is the main out-of- stream water use and relies on primarily 100-year-old infrastructure to divert, store, and deliver water to farms and ranches. In recent years, the improvement of water resources has been a coordinated focus among the eight irrigation districts within the Deschutes Basin, with the goal of addressing environmental needs for instream flows while still delivering enough water to district patrons.

Arnold Irrigation District (herein referred to as AID or the District) operates 39 miles of canals and laterals in the Deschutes Basin. Most of this infrastructure consists of open, earthen canals. AID's Main Canal loses up to an estimated 32.5 cubic feet per second (cfs) of water during the irrigation season (11,083 acre-feet annually) due to seepage into the porous volcanic geology and evaporation. This water never reaches District patrons and farms.

Over the years, AID has pursued infrastructure upgrades to provide a permanent solution to system-wide water losses. Although some improvements have been made, aging and outdated infrastructure continues to contribute to water delivery insecurity for out-of-stream users and limits streamflow due to the need to divert more water than is delivered; this affects water quality and aquatic habitat along the Deschutes River. The Main Canal has become a public safety risk to more people as the surrounding areas have urbanized. Aging infrastructure also affects the financial stability of AID and its patrons as AID must find new approaches to fund growing maintenance needs.

Improving irrigation infrastructure offers an opportunity to conserve water, increase the reliability of water delivery to patrons, enhance streamflow and habitat conditions for fish and aquatic species in the Deschutes Basin, reduce risks to public safety from open irrigation canals, and reduce operation and maintenance (O&M) costs for the District.

AR-00029.

Plaintiffs moved for injunctive relief on July 25, 2023, and the matter is now fully briefed. The Court presided over an oral argument on August 22, 2023. Barring a court order enjoining activity, work on the Project is set to begin as soon as September 1, 2023.

STANDARDS

A plaintiff seeking a preliminary injunction must establish: (1) likelihood of success on the merits; (2) irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When there are “serious questions going to the merits,” a court may still issue a preliminary injunction when “the balance of hardships tips sharply in the plaintiff's favor,” and the other two factors are met. All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). The Court's decision on a motion for a preliminary injunction is not a ruling on the merits. See Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

DISCUSSION

I. MERITS OF PLAINTIFFS' NEPA CLAIMS

Agency decisions under NEPA are reviewed by this Court under the APA. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011) (per curiam). Under the APA, a court's review of an agency decision should be searching but narrow, and the reviewing court should take care not to substitute its judgment for that of the agency. Oregon Wild v. United States, 107 F.Supp.3d 1102, 1109 (D. Or. 2015) (citing Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971)). Under this review, the Court “shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. An agency decision made without adherence to required procedure is not in accordance with law. Id.; Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 567 (9th Cir. 2000).

NEPA claims are reviewed under the “arbitrary and capricious” standard of the APA. Ctr. for Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1005 (9th Cir. 2011) (quoting 5 U.S.C. § 706(2)(A)). This reviewing standard is “highly deferential, presuming the agency action to be valid” and the Court “may only set aside decisions that have no basis in fact . . . not those with which [the Court] disagree[s].” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quotation omitted); Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). As explained by the Supreme Court, an agency action is arbitrary and capricious only:

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., Inc., 463 U.S. 29, 43 (1983).

As discussed below, Plaintiffs argue that, for a variety of reasons, the NRCS's decision was arbitrary and capricious and therefore violated NEPA. Especially when viewed under the “highly deferential” standard for NEPA claims, the Court disagrees.

A. EA Review of Project Alternatives

Plaintiffs argue that the EA failed to include viable alternatives to the piping alternative. The Court reviews the NRCS's “range of [NEPA] alternatives under a ‘rule of reason' standard that requires an agency to set forth only those alternatives necessary to permit a reasoned choice.” Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1160 (9th Cir. 1998). Important here, the NRCS's “obligation to consider alternatives under an EA is a lesser one than under an EIS.”^[1] N. Idaho Cmty. Action Network v. U.S. Dep't of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008). For an EA, it must include “a brief . . . discussion of alternatives” because the EA is “a concise public document.” 40 C.F.R. § 1508.9. There is no requirement that an EA must discuss why an alternative was eliminated from detailed study. 40 C.F.R. § 1502.14(a).

The EA briefly noted several alternatives that were rejected early in the formulation process that did not meet the Project's purpose and needs. AR-00079 (rejecting voluntary reductions of water, conversion to dryland farming and a mix of piping and open canal). While the Property Owners argue that the dismissal of these alternatives was arbitrary and capricious, the Court disagrees. The EA clearly states the above alternatives were not considered “because they did not meet the formulation criteria.” AR-...