Tillamook County v. U.S. Army Corps of Engineers

• Decision Date: 29 April 2002
• Docket Number: No. 01-35922.,01-35922.
• Citation: 288 F.3d 1140
• Parties: TILLAMOOK COUNTY, Plaintiff-Appellant, v. U.S. ARMY CORPS OF ENGINEERS, Defendant-Appellee, City of McMinnville, acting by and through its Water and Light Commission, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

288 F.3d 1140 TILLAMOOK COUNTY, Plaintiff-Appellant,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant-Appellee,
City of McMinnville, acting by and through its Water and Light Commission, Defendant-Intervenor-Appellee. No. 01-35922. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 6, 2002. Filed April 29, 2002.

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Marianne G. Dugan, Eugene, Oregon, for the plaintiff-appellant.

David J. Lazerwitz, Washington, District of Columbia; Thomas C. Lee, Portland, Oregon, for the defendant-appellant.

G. Kevin Kiely, Portland, Oregon; Clark I. Balfour, Portland, Oregon, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Oregon (Eugene), Garr M. King, District Judge, Presiding.

Before: POLITZ,^* CANBY, and KLEINFELD, Circuit Judges.

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OPINION

POLITZ, Circuit Judge.

Tillamook County appeals the denial of its motion for preliminary injunction to prevent intervenor-defendant the City of McMinnville, Oregon, from continuing the enlargement of its existing municipal water supply reservoir along the Nestucca River. The County complains that the finding by the United States Army Corps of Engineers that the proposed expansion would not have a significant environmental impact was arbitrary and capricious, and that the district court abused its discretion in denying the preliminary injunction. Concluding that the Corps conducted an adequate investigation and that the district court did not abuse its discretion, we affirm.

BACKGROUND

The existing reservoir is situated at the headwaters of the Nestucca River, approximately twelve miles from the City, and is an integral component of the municipality's water supply system. The City seeks to expand the reservoir to avert water shortages caused by an increasing population. The initial water shortage is expected to occur sometime between 2002 and 2020, depending upon rain conditions. The proposed expansion would entail raising the existing dam by 30 feet to increase the storage capacity of the reservoir. It would directly impact 13.26 acres of navigable waters, 12.7 acres of which would be affected by filling the reservoir after construction of the new dam and spillway in 2002. Because the expansion includes the placement of dredge or fill materials into navigable waters of the United States, the Commission was required to obtain a section 404 permit from the Corps.¹

In seeking to obtain federal and state authorization for the proposed expansion of the reservoir, the Water Commission of the City of McMinnville applied for a dredge or fill permit from the Army Corps of Engineers to fill 2.4 acres of navigable waters under section 404 of the Clean Water Act.² The issuance of a section 404 permit is considered a major federal action under the National Environmental Policy Act ("NEPA"),³ therefore, the Corps was required to prepare a draft and final environmental assessment of the project.

The Corps prepared an initial assessment and, following a period of public comment and a review process, determined that the project would not have a significant impact on the environment. In February 2001, the Corps issued its final environmental assessment and Finding of No Significant Impact, and a section 404 permit to the Commission to place fill material in 2.36 acres of navigable waters.⁴ After the issuance of the section 404 permit, the Commission began construction of the reservoir and at the time of this appeal had completed the initial stages of construction, required under the permit's terms to be completed prior to September 15, 2001. Under the Commission's current construction schedule, the expanded reservoir will be filled in early 2003.

In June 2001, the County brought the instant action⁵ against the Commission and moved for a temporary restraining order and preliminary injunction, claiming that the Corps failed to comply adequately

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with the NEPA and the Clean Water Act in the course of issuing the section 404 permit. The district court denied the temporary restraining order and we dismissed the County's appeal for lack of appellate jurisdiction.

In September 2001, the district court denied the County's motion for a preliminary injunction. On October 3, 2001, the County filed the instant appeal and moved for an emergency stay pending appeal which we denied in November 2001.

ANALYSIS

Preliminary Injunction Standard

We review the denial of a motion for preliminary injunction for abuse of discretion.⁶ A district court abuses its discretion when it bases its decision on an erroneous legal standard or clearly erroneous findings of fact.⁷ To obtain preliminary injunctive relief, the movant must show: (1) a probability of success on the merits combined with a possibility of irreparable harm if the relief is denied; or (2) serious questions are raised and the balance of hardships tips sharply in the movant's favor.⁸ These are not alternative tests but, instead, are extremes of a single continuum.⁹

Probability of Success on the Merits

The County contends that the Corps' decision not to prepare an EIS based on its conclusion that there would be no significant environmental impact violated the NEPA because of the significant and uncertain impacts of the proposed expansion. The County adds that even if...