156 F. Supp. 3d 1252
W.D. Wash.2015Background
- Plaintiffs sue to challenge the Corps' December 2014 FEIS/RODs on the Lower Snake River Programmatic Sediment Management Plan (PSMP) and the 'current immediate need' dredging action planned for winter 2014-2015.
- Corps seeks to dredge two locations (Ice Harbor downstream lock approach; confluence of Snake and Clearwater rivers) to restore a 14-foot navigation channel under the Flood Control Act; dredging window December 15 to March 1 to avoid salmonids.
- PSMP established a framework with alternative management measures; Alternative 7 was selected as the plan; the FEIS evaluated both PSMP and immediate dredging together.
- Plaintiffs allege NEPA violations (incomplete alternatives analysis, failure to consider climate change effects and other sediment-management measures) and CWA/public-interest violations regarding the dredging decision.
- Intervenors IPNG and CSRIA joined; court held oral argument January 5, 2015 and denied the motion for preliminary injunction; this order formalizes the denial.
- Court analyzes whether irreparable harm, balance of equities, and public interest support an injunction; finds no likelihood of irreparable harm and weighs equities against injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Likelihood of irreparable harm | Plaintiffs contend dredging harms Pacific lamprey and Nez Perce Treaty interests irreparably. | Corps argues potential harms are not irreparable and not proven likely at species level; ESA take does not alone prove irreparable harm. | No likelihood of irreparable harm to lamprey or tribe; injunction denied. |
| NEPA compliance | EIS provides truncated analysis of alternatives and fails to consider full suite of sediment-management measures. | EIS adequately analyzed alternatives and impacts within PSMP scope; no NEPA violation shown warranting injunction. | NEPA concerns insufficient to justify injunction. |
| Balance of equities | Dredging harms environment outweigh navigation interests; injunction needed to protect ecological resources. | Dredging necessary for safe navigation and compliance with NMFS-derived operational parameters; harms to navigation outweigh environmental concerns. | Equities weigh against injunction. |
| Public interest | Public interest favors protecting lamprey and imperiled species from dredging. | Public interest includes safe navigation and adherence to NMFS biological opinion; injunction would impede those interests. | Public interest weighs against injunction. |
Key Cases Cited
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (Sup. Ct. 2010) (NEPA does not place a thumb on the scales in favor of injunctions)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. 2008) (likelihood of irreparable harm required; injunctions are extraordinary)
- Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (serious questions/likelihood of merits with sliding scale for injunctions)
- Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, 817 F. Supp. 2d 1290 (D. Or. 2011) (irreparable harm must be measured at species level where applicable)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (balancing of harms and public interests in injunction decisions)
- Mazurek v. Armstrong, 520 U.S. 968 (U.S. 1997) (preliminary injunction burden requires clear showing)