Utah Council v. U.S. Army Corp of Engineers, 2:00-CV-00623C.

• Decision Date: 06 March 2002
• Docket Number: No. 2:00-CV-00623C.,2:00-CV-00623C.
• Citation: 187 F.Supp.2d 1334
• Parties: UTAH COUNCIL, TROUT UNLIMITED, et. al, Plaintiffs, v. UNITED STATES ARMY CORP OF ENGINEERS, et. al, Defendants.
• Court: U.S. District Court — District of Utah

187 F.Supp.2d 1334

UTAH COUNCIL, TROUT UNLIMITED, et. al, Plaintiffs, v. UNITED STATES ARMY CORP OF ENGINEERS, et. al, Defendants.

No. 2:00-CV-00623C.

United States District Court, D. Utah, Central Division.

March 6, 2002.

COPYRIGHT MATERIAL OMITTED

Joro Walker, Land & Water Fund of the Rockies, Salt Lake City, UT, for Plaintiffs.

Daniel D. Price, U.S. Attorney's Office, Lisa Lynne Russell, U.S. Department of Justice Land and Resource Division, Washington, DC, Jon M. Lipshultz, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, Eric S. Gould, Springfield, VA, for Defendants.

ORDER

CAMPBELL, District Judge.

This matter is before the court on Plaintiffs' Appeal and Motion to Remand Agency Action. The court held a hearing on this matter on October 1, 2001, and for the reasons set for below DENIES Plaintiffs' appeal and motion to remand.

Background

This case involves a challenge to the Army Corp of Engineers' ("ACE") decision to allow the construction of a pipeline project and a water treatment plant through its Nationwide Permit ("NWP") program. Plaintiffs Utah Council, Trout Unlimited et. al. ("TU" or "Plaintiffs") contend that ACE's decision to allow essentially three projects-the East Canyon Pipeline, the Jeremy Ditch Pipeline, and the East Canyon Water Treatment Plant-violates several federal provisions, including the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the National Environmental Preservation Act ("NEPA"), 42 U.S.C, § 4321 et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq., and the Federal Wildlife Coordination Act ("FWCA"), 16 U.S.C § 661 et seq., Plaintiffs appeal the agency decision that the projects met NWP standards. They contend that this action violated both the APA and NEPA and that therefore this matter should be remanded to the Agency so that the review process can proceed under the proper legal guidelines.

The factual documentation in the record and the parties' briefs are voluminous and will be referenced only where applicable.¹ Plaintiffs are groups of fishermen and others concerned with the environment who contend that the ACE improperly permitted several projects that would adversely affect streams which contain fisheries of the Bonneville Cutthrout trout ("oncorhynchus clarki Utah"). Plaintiffs understandably lament the fact that a once thriving but now ailing ecosystem is not what it once was. In the present action, they contend that the ACE's recent action of permitting, or not acting, and therefore permitting de facto the three projects, violated the statutes mentioned above.

The three projects together were essentially envisioned to supply additional water to Summit County, Utah, for drinking water and snow making purposes. Plaintiffs argue that the projects impermissibly impact the water in the watershed by raising water temperatures (as a result of decreased flows, which affect trout populations) and by increasing phosphorus and other minerals to impermissible levels. Plaintiffs contend that permitting the projects was improper because the projects threaten several historic or possibly historic trails, including the Mormon Pioneer Trail and the Pony Express Route.

In the course of evaluating the projects, ACE, complied information received from the Environmental Protection Agency ("EPA"), the Fish and Wildlife Service ("FWS"), the Utah Department of Water Quality ("DWQ"), and the State Historic Preservation Officer ("SHPO") for the State of Utah, among other parties. These parties all raised concerns regarding the permitting of these projects but the DWQ and the SHPO ultimately acknowledged their approval of the permits. At the basis of Plaintiffs' complaint is the question of whether the ACE gathered the information properly, accorded it proper weight, and considered it in a legally sufficient manner before deciding that the proposed projects conformed with NWP standards.

Plaintiffs believe that the ACE improperly permitted, or permitted de facto, the projects without giving the proper credence to the parties who did comment on the projects, and that the ACE did not allow public notice and comment before issuing the permits for the projects. As a result, Plaintiffs contend that: 1) the ACE unlawfully issued NWPs for the projects when it was legally obligated to require an Individual Permit (which would invoke the full NEPA process) for the projects; 2) the ACE failed to ensure that the projects would not further degrade the water quality of the watershed; 3) the ACE failed to analyze alternatives to the projects even though alternatives might have been available; 4) the ACE failed to undertake even minimal NEPA analysis (which, as discussed below, dovetails into Plaintiffs' first objection); 5) the ACE failed to comply with the FWCA even though the trout were threatened; and 6) the ACE ignored the NHPA despite entreaties from parties to preserve Historic Trails in the East Canyon.

Analysis

A. Mootness

The issue before the court is whether ACE's determination that the projects were in accord with existing NWPs violated the APA and NEPA. Because at least two of the projects have been completely or partially completed, there is a question whether Plaintiffs' challenge to those actions is now moot.

The Constitution limits this court's jurisdiction to those matters involving live "cases" or "controversies." U.S. Const. Art. III § 1. This constitutional restriction of this court's jurisdiction precludes it from adjudicating moot controversies. See Central Wyoming Law Assoc. v. Denhardt, 60 F.3d 684, 687 (10th Cir.1995). "In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Id.

Parties lack a legally cognizable interest in the outcome of a case if "(1) it can be said with assurance that `there is no reasonable expectation . . .' that the alleged violation will recur, . . . and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation."

City of Albuquerque v. Browner, 97 F.3d 415, 420 (10th Cir.1996) (citation omitted).

Defendants represented at the hearing on this matter that the Jeremy Ditch pipeline has been completed in its entirety, and all of the construction of the water treatment plant that involves placement of fill in wetlands and other jurisdictional waters has been completed. Defendants also point out that it is uncertain whether the East Canyon Pipeline, which is partially complete, will ever be completed at all, though the parties have informed the court that the permit holder has applied for an extension of the permit, which expired on December 14, 2001. The ACE has not made a decision regarding the verification of the application for renewal. It also appears that the mitigation measures agreed to by the permit applicants have been completed for these sites. Plaintiffs cite two Tenth Circuit cases-City of Albuquerque v. Browner, 97 F.3d 415 and Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426 (10th Cir.1996)-for the proposition that their claim is not moot because they still have substantive claims that the permit procedure under the NWP was violated. As a general principle, Plaintiffs are correct, but their remedies are limited to procedural remedies.

In Airport Alliance, the Tenth Circuit stated that courts will "still consider NEPA claims after the proposed action has been completed when the court can provide some remedy if it determines that an agency failed to comply with NEPA." 90 F.3d at 428-29. The Tenth Circuit pointed out that it could still order restriction of the amount of flights and the flight paths that planes would take even though the runway was already constructed. Id. at 429. The court noted that if it found that NEPA had been violated, then it could remand the matter to the agency to follow NEPA procedure to consider mitigation measures. Id. Importantly for this case, the court also specifically noted "the fact that the upgrade of [the runway] has been completed renders moot any claim relating to the construction of the runway." Id. (emphasis in the original).

In this case, following the rule from Airport Alliance, the Plaintiffs' challenges relating to the construction of the completed projects are moot. However, the court may consider whether the mitigation measures were adequate under the NWP program for the three projects and order procedural relief if the agencies did not follow the mandate of NEPA and the APA. See Airport Alliance, 90 F.3d at 429 (noting that the court may remand to agency to fully consider mitigation).

B. Standard of Review

The Tenth Circuit has held that APA challenges in district court should be processed as appeals, not as summary judgment proceedings, with the Federal Rules of Appellate Procedure providing guidance. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). Challenges to ACE permitting determinations under the statutes at issue here are subject to the deferential standard of review set out in the APA. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377. (1989) (applying APA in context of NEPA challenge); Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 573 (9th Cir.1998) (applying APA in context of NHPA); Preserve Endangered Areas of Cobb's History, Inc. v. Corps of Engineers, 87 F.3d 1242, 1247 (11th Cir.1996) (applying same in CWA section 404 permits); Shoreline Assocs. v. Marsh, 555 F.Supp. 169, 173 (D.Md.1983), aff'd. 725 F.2d 677 (4th Cir.1984) (same). A number of established rules limit a court's review. Most importantly, a court may invalidate a final agency decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(...