*1 on the bal- party preferences statement a political to force potential has the
lot an unwanted association with
party into every- anathema to who be
candidate stands for. We hold
thing party in its en-
Initiative 872 is unconstitutional party preference provi-
tirety because from the rest of are not severable
sions Washington law. The
Initiative 872 under court is affirmed. of the district
judgment
AFFIRMED. ENVIRONMENTAL
NORTHWEST
ADVOCATES, Plaintiff-
Appellant,
v.
NATIONAL MARINE FISHERIES
SERVICE, Army Corps States United Engineers, Defendants-Appellees, Vancouver, Woodland, Ka-
The Ports of Portland,
lama, Longview, and St.
Helens, Defendants-Intervenors-Ap-
pellees.
No. 05-35806. Appeals,
United States Court
Ninth Circuit. March 2006.
Argued Submitted Aug.
Filed *3 Mashuda,
Stephen Earthjustice, D. Se- attle, WA, plaintiff-appellant. for the Sanders, Department Matthew J. U.S. Justice, D.C., Washington, the de- fendants-appellees. Rives, LLP, Ginsberg,
Beth S. Stoel Se- attle, WA, for the defendants-intervenors- appellees. *4 FLETCHER, SILVERMAN,
Before: B. GOULD, Judges. Circuit SILVERMAN, Judge: Circuit Environmental Northwest Advocates (“NWEA”) challenges adequacy of a Integrated 2003 Final Supplemental Feasi- bility Report and Environmental Impact prepared by Statement the United States Army Engineers Corps of in connection deepen with a project the Columbia navigation River propose channel and to disposal dredged new sites materi- als. argues NWEA violat- ed the Policy National Environmental Act (“NEPA”), § 4321 et seq., be- 42 U.S.C. cause, claims, the Final Supplemental Integrated Feasibility Report and Envi- Impact ronmental fails to Statement take a “hard look” at deepening pro- the channel ject’s impacts. various district court otherwise, saw held the Corps had taken requisite “hard look” at the particular environmental and economic fac- tors at issue. on the Corps’ Based exten- sive the project’s examination of cumula- tive, direct, impacts, and economic we agree with the district court required has taken the hard look. deepening project deep- channel involves to U.S.C. pursuant jurisdiction haveWe the channel from ening Columbia River affirm.1 § 1291 and Mile 3 to Mile 106.5. The also Background I. Factual ecosystem ac- includes various restoration deepening project” tions.2 The “channel Deepening A. The Channel ac- proposes also three sites to Project Disposal Dredged Material commodate material from both major represents River The Columbia Mouth Pacific Northwest. gateway to the cargo project, independent River an Columbia River depth of the Columbia The current dredging project. The first two areas are 40 feet. Over the channel is navigation Dredged Disposal so-called Ocean Material with “de- twenty years, larger vessels past Site,3 and include the Shallow Water Sites exceeding this 40-foot channel sign drafts” the littoral dispersive site4 located within increasing share of have carried depth cell, Deep and a The third area Water Site. Because cargo tonnage. Site, Jetty is the North which is also dis- depth, these of channel of the constraints and located the littoral cell. persive within “light-loaded.” Ac- must arrive vessels dumped Material at the Shallow Water *5 the current 40-foot cording Corps, to the Jetty stays in the Site and the North Site percent of vessels channel constrains system, littoral where it can accrete on transpacific container trade involved in the coastlines to counteract erosion. Sediment only depth would constrain a 43-foot while is consid- placed Deep at the Water Site percent. effectively ered “inert” because it is re- transport sys- moved from the sediment 1989, Congress Corps directed the In tem. feasibility deepening the Co- assess channel navigation 1999, River’s 40-foot August lumbia In released a Feasibility Report in order to en- and Integrated to a maximum of 43 feet Final Impact Environmental Statement for the capacity. The current shipping hance occupies an extend- challenges Dredged 3. The Shallow Water Site also a 1998 Ma- 1. NWEA Supplemen- Management expanded and terial and Plan ed area the former includes Impact complet- Statement Feasibility tal Environmental Integrated Site E. The 1999 Final project an alternative to maintain the ed for Report Impact and Environmental Statement depth. Because we hold that current channel However, area, E. refers to the older Site Supplemental Integrated Final Fea- the 2003 Agency Protection had initi- Environmental sibility Report Impact and Environmental rulemaking processes to re- preliminary ated project deepening Statement for the channel Water Site at place Site E with the Shallow Policy Environmental satisfied the National the 2003 Final the time the issued Act, we not reach the issue of the 1998 do Feasibility Report Supplemental Integrated Management Dredged and Material and Plan Statement, Impact and Environmental Impact State- Supplemental Environmental Wa- thus refers to the Shallow that document ment. materially ter Site. Because these sites are different, opinion "Site will refer to either Integrated Supplemental 2. The 2003 Final appro- Water Site” as E” or to the “Shallow Report Impact Feasibility and Environmental plan priate. to use Statement includes channel in restora- material from However, estuary. if the tive actions in the placed disper- 4. Some amount fully implement- restoration features are not naturally migrates out of the site sive sites ed, dispose will of material then the elsewhere, increasing these thus and settles described in the 1999 Final the ocean as dynamic capacity. sites' Integrated Feasibility Report and Environ- Impact Statement. mental Improvement indepen- staff members as well as River Channel
Columbia Project.5 several-hundred-page docu- This panel experts. scientific dent seven analyses of ment contains numerous 2002, Throughout received and alternatives, project and its af- proposed comments on the responded to numerous environment, impact, environmental fected supplemental draft environmental plans It implementation. also includes statement, from including comments dredged material from the dispose 2001, Corps issued a NWEA. Also in project of the Mouth wildlife, Biological of fish and Assessment Jetty in the North subsequent Supplemental Final which Site, E, Deep and the Water Site. The Site Integrated Feasibility Report and Envi- issued a U.S. Fish and Wildlife Service Impact incorporates ronmental Statement on Jeopardy” Biological Opinion “No H. on the new as Exhibit Based En- project’s potential impact on certain studies, changed NOAA Fisheries its as- dangered Species Act-listed wildlife and project. May In sessment species. initially finding After plant Fish and U.S. Wildlife Service jeopardize not salmonids would Biological Opinions concluding final issued Species protected Endangered under the deepening project that the channel would Act, fisheries withdrew its favor- NOAA adversely Endangered affect Biological Opinion, citing Species able new infor- project’s potential impact mation on the species. Act-protected flow, bathymetry, resuspension river January issued its of toxins. Supplemental Integrated Feasibility Final withdrawal, Following this the States Report Impact and Environmental State- Washington Oregon denied certifica- *6 (“FSEIS”).6 spans ment The document tion of the 401 of the project under Section pages supplements, several hundred and Act, 1341, § Clean Water 33 U.S.C. and updates, incorporates through and refer- Act, Management the Coastal Zone Integrated Feasibility ence the 1999 Final seq. They expressed 1451 et § U.S.C. con- Report Impact and Environmental State- project’s cern over the effects on sediment Among ment. numerous additional stud- transport Dungeness crab as well as ies, J, the 2003 FSEIS includes' Exhibit consistency existing pro- its coastal grams. agencies directly Consultations with state responds Oregon which followed, Corps began preparing a Washington’s by analyzing concerns supplemental impact environmental state- of channel on sediment ment to part address those concerns. As in transport the Columbia River. Based process, February in qn expanded analyses, the revised and Fisheries, Corps, NOAA and the U.S. Fish Washington Oregon withdrew their non-profit and Wildlife hired the Service objections project. and certified the Ecosystems Sustainable Institute to re- 9, 2004, January Corps On issued view deepening project’s po- the channel approving Record of the channel tential Decision impacts. environmental The SEI process project deepening project. involved reviews SEI Corps Agency parties 5. While the is the Lead 6. re- Because the refer to this document “FSEIS,” sponsible issuing Integrated the Final as we do as well. As with the 1999 Statement, Feasibility Report Impact Impact and Environmental Final Environmental Statement, Corps Agen- the United States Environmental 2003 FSEIS lists as the Lead Agency Cooperating cy Agency Protection is listed as a and the Environmental Protection Agency. Cooperating Agency. as a
H31 Project Maintenance entrance between the Pacific Ocean and B. The Channel River. As part Columbia of the MCR channel proposed of the Independently project, Corps a maintains operates an project, depth removing approximate- 55 feet maintain the dredging project to ongoing ly yards every 4.5 million cubic of sediment depth of the Columbia River navi- current year. placed has material As of that part channel at 40 feet. gation dredged from the MCR in four ocean dis- Dredged Ma- project, released (referred A, B, E, posal sites to as Sites Supplemental Plan and Management terial F), which the EPA in designated pur- in 1998. The Impact Statement June material, A, Management Material To accommodate more Sites pose Dredged B, Supplemental Impact expanded Plan and Statement and F were and Site 20-year plan for disposal is to create a expanded analyses E was in 1997. Recent dredged proposed sediments and evaluate disposal reveal that the sites for material changes dredging disposal, includ- dredged from the project have or ing shifting current mentioned, capacity. will soon reach As material to other sites. As described deepening project the channel includes a deepening, the 2003 for channel FSEIS proposal for three new sites—the North repre- the channel maintenance Site, Site, Jetty and Deep Shallow Water Alternative” to chan- sents the “No Action Water Site—to accommodate material deepening. nel dredged from the MCR as well project, navigation channel itself. River Littoral Cell C. Columbia project, addition to the MCR Ongoing Projects and Other jetties several constructed appeal A central concern of this is the Furthermore, the entrance of the MCR. to ex- potential Corps projects for various and the Bureau of Reclamation Historically, the acerbate coastal erosion. system operate along dams the Co- from in- River has drawn sand collectively lumbia River known as the estuary, it in deposited land areas and System. Federal Columbia River Power in turn to 100 provided which Head, miles of shoreline from Tillamook *7 History II. Procedural Grenville, Oregon Washington. to Point alleg- known as the filed suit in district court This area is NWEA years, vari- past ing littoral cell. Over 120 that NOAA Fisheries had violated the ous natural and human activities have re- Endangered by failing Act Species deposited duced the amount of sand and study adequately impact Corps’ of the cell, contributing to throughout the littoral on dredging protected activities salmon. Oregon Washington erosion of the and thereafter, Shortly filed a NWEA first coasts. arguing that complaint amended Corps’ Dredged 2003 and 1998 Ma- FSEIS projects
In addition to the described Management Supplemental terial Plan and above, agencies and other cur- Impact sufficiently did not ana- Statement rently operate projects several other and lyze deepening of the and around the Columbia River. Most projects required maintenance appeal relevant to this is the Mouth of the (“MCR”) subsequently NEPA. amended its NWEA project, Columbia River which times, arguing more complaint two operated since 1983. sup- required prepare was navigation area is a 0.5-mile-wide statement through plemental impact channel that runs for six miles environmental 1132 justify Jeop- Fish- Fisheries could its No challenging
under NEPA and NOAA NOAA Biological Opinion. eries’ revised Because ardy concerning determination salmonids significant naviga- of their interest in the project improve because the would es- local spon- tion channel and their role as tuary’s environmental baseline and have project, the deepening sors of the channel Endangered minimal impact Species on Woodland, Kalama, Vancouver, Ports species. Act-listed The court further held Portland, sought and Longview, St. Helens that NOAA Fisheries’ baseline granted and intervenor status. were arbitrary capricious was not and because for sum- agency “fully Presented with cross-motions evaluated the environ- mary, judgment, granted the district court mental baseline and the effects of the ac- Fisheries, summary judgment to NOAA to that tion when added baseline.” The Ports, Corps, Sponsor rulings Endangered Species on the Act summary judgment denied to NWEA. challenged appeal. claims are not violations, Regarding alleged NEPA III. Standard of Review
the district court ruled that the took requisite “hard look” the direct We review de novo a district indirect effects of the channel grant summary judg court’s or denial of toxicity, budget, on sediment river ment. Ground Zero Ctr. Non-Violent for salinity. Klamath-Siskiyou See Wild Navy, v. Dep’t Action U.S. 383 F.3d Mgmt., lands Ctr. v. Bureau Land 387 (9th Cir.2004). 1082, 1086 De novo review (9th Cir.2004). 989, court F.3d 993 district court judgment means also ruled that the channel “ we must ‘view the case from the same projects Mouth of are the Columbia River ” position as the district court.’ Ka Maka not “connected actions” under 40 C.F.R. Supply, ni O Kohala Ohana Inc. v. Water 1508.25(a)(1) § the environmental (9th 955, Cir.2002) (quoting 295 F.3d only statement the former need Babbitt, Sierra Club v. 65 F.3d consider the latter in the of “cumu context (9th Cir.1995)). Pursuant to the Adminis impact.” lative The court struck and de Act, trative Procedure a court set clined to consider the extra-record declara aside the of an decision administrative tion of economist Ernest Niemi submitted Corps only such as if it relating NWEA to the economic “arbitrary, capricious, an abuse of discre analysis. purpose The stated of Niemi’s tion, or otherwise not in accordance declaration was to “determine whether or 706(2)(A); § law.” 5 U.S.C. see Nat’l provides misleading not the de FSEIS Army Corps Eng’rs, Fed’n v. Wildlife scription Project’s im potential (9th Cir.2004). We pacts.” The court ruled that use of this *8 previously have held: improper declaration would be under As urco, EPA, Inc. v. which held that a court agency’s An arbitrary action is and ca- may not consider extra-record evidence “to pricious if agency fails to consider an determine the or correctness wisdom of important if aspect problem, of a agency’s 1153, decision.” 616 F.2d agency explanation offers an for the de- (9th Cir.1980). Noting 1160 approval evidence, contrary cision that is to the if reviewers, of independent expert the court agency’s implausible decision is so upheld proper Corps’ economic that it could not be to a differ- ascribed analysis. product agency ence in view or be the expertise, agency’s or if the decision is Regarding alleged Endangered Spe- violations, cies Act contrary governing the court ruled that to the law.
H33 1019, moot; Powell, challenge or render to it if 395 F.3d v. Lands Council (9th Cir.2005) (internal omit pursue deepen- citations does not channel 1026 ted). impact an environmental pursue We review ing, presently it is slated con whether it “to determine statement maintenance as the “No Action Alterna- reasonably thorough discussion tains ‘a tive.” probable of the en significant aspects Likewise, clearly record indicates ” particular of a consequences’ vironmental deep that NWEA raised the issue of water Carmel-By-The-Sea v. City project. disposal in the context of cumulative im- 1142, Transp., 123 F.3d 1150 Dep’t U.S. pact proceed- in the administrative both Cir.1997) (9th Idaho Conserva (quoting Therefore, and the district court. ings Mumma, 1508, 956 F.2d League tion v. objections NWEA has not waived these Cir.1992)). (9th Alternatively 1519 and we review them on the merits. agency decisions phrased, we review agency has taken a ‘hard ensure that “the Impact B. Cumulative on Coastal environmental conse potential look’ at the Erosion proposed action.” Kla quences of the reject principal claim We NWEA’s 993(quoting F.3d at math-Siskiyou, 387 by failing violated NEPA Norton, County v. 276 F.3d Churchill impact take a hard look at the cumulative Cir.2001)). (9th 1060, doing, so 1072 removing significant on coastal erosion of carefully agency’s we scrutinize
while region. of sand from the littoral amounts NEPA, we must “be mindful actions under analyses conducted numerous expertise, particularly to defer to spanning two environmental state matters within respect to scientific problem ments to address the of coastal agency.” Klamath- purview Corps responded erosion. The concerns 993; Anderson v. Siskiyou, 387 F.3d at see (9th Cir.2004). parties from interested with additional Evans, 475, 371 F.3d 489 and with those concerns mind studies deci a district court’s We review disposal plan to minimize structured its extra-record evidence for sion to exclude requi coastal erosion. The took the Biologi Ctr. abuse of discretion. Sw. hard look at this issue. site Serv., Diversity v. Forest 100 F.3d cal U.S. Cir.1996). 1443, 1447(9th held, im repeatedly we NEPA As have requirements agencies poses procedural Analysis IV. not mandate substantive out and does v. Natural Res. Council U.S. comes. A. Waiver Def. (9th Serv., 797, 421 F.3d 811 Cir. Forest matter, reject we preliminary As 2005); Klamath-Siskiyou, see arguments Sponsor Ports’ Citizen, 993; v. Pub. Dep’t Transp. challenge somehow waived its NWEA 756-57, 124 S.Ct. U.S. Dredged Management Material to the (2004); Yankee Nuclear L.Ed.2d 60 Vt. Supplemental Impact Plan Statement Council, v. Natural Res. Corp. Power Def. that it moot. The district court ad- or 519, 558, 1197, 55 98 S.Ct. U.S. Manage- Material Dredged dressed the (1978). “major For Federal L.Ed.2d 460 Impact Supplemental ment Plan and *9 affecting quality the of significantly actions summary judgment order Statement in its environment,” 42 U.S.C. the human to this document and NWEA refers 4332(C), requires § NEPA Furthermore, the throughout its brief. impact statement. an environmental prepare project does not neces- deepening
channel math-Siskiyou, maintenance Kla sarily supersede the channel impact An environmental statement considered direct sediment from dis- loss fair provide Site, full and discussion of posing “shall of in the Deep sand Water significant impacts environmental and shall which lies of the littoral system. outside and the public inform decisionmakers Corps The use recognized unfettered the reasonable alternatives which would of the Site ad- Deep Water would have impacts or avoid minimize adverse or en- consequences, verse environmental quality hance the of the human environ- structured plans disposal its minimize § ment.” 40 C.F.R. 1502.1. Second, there. the examined 1508.25(c)(3), § whether the navigation Pursuant to 40 channel C.F.R. impact hydraulics, altering an environmental statement change must river thus a proposed project’s consider “cumulative the rate of flow sediment within the river § impact,” which 40 C.F.R. 1508.7 defines and to estuary. the concluded as: that channel would not have impact
the on the environment which this effect. results from the incremental 1508.7, § Consistent 40 C.F.R. with past, action when added to other Corps’ analyses just considered not present, reasonably foreseeable fu- project, channel deepening but also re- regardless ture actions of what agency lationship other projects. (Federal non-Federal) person or or un- FSEIS states: dertakes such other actions. Cumula- Although Congress has authorized impacts tive from individually can result improvement project channel collectively significant minor but actions separate pro- MCR two taking place period over a of time. jects, and ... Environ- [the have held We that an environmental im have, Agency] mental Protection where pact “catalogue statement adequately must appropriate, coordinated the review projects in past provide the area” and relevant impacts. example, For “useful of the cumulative impact long-term reviews the IFR/EIS past, present, projects.” and future disposal plan and its for both City Carmel-By-The-Sea, 123 F.3d at improvement and MCR. 1160; Council, see Lands F.3d at 1027. framework, Given this agree we with the i. Direct Potential Sediment Loss district court Corps’ cumulative Deepwater Disposal from impact analysis satisfied NEPA’s “hard Dredged Material requirement. look” NWEA’s main con- cern is that the cumulative impact of the a. Potential Direct Sediment Loss channel deepening and Mouth of the Co- Project from lumbia River projects, including the for- actions, In challenging Corps’ plans mer’s disposal of dredged sedi- misplaces NWEA its focus on the 2004 Site, ment at the Deep will Water remove FSEIS and fails to consider the significant amount of sand from the litto- extensive of deepwater treatment system. ral This in turn will exacerbate Integrated the 1999 Feasibility Final estuary’s function as a “sand sink” that Report shorelines, Impact Environmental away draws sand State thus ment. accelerating As the 1999 document demon coastal erosion. Within this model, strates, the Corps adequately clearly was aware addressed the two that could potentially disposing mechanisms environmental ramifications of First, lead loss. all of sediment from the MCR
H35 Corps proposed disposing That doc- The further of Deep Water Site.7 project in the Site, at Jetty material North ument states: the a non- site ocean which lies within littoral If the site is used as intended deepwater (4.5 region. yards] cubic of MCR mcy [million year yrs), for 50 per sand placed Recognizing “quantity of littoral implications on the sediment dredged placed be material will adjacent and coastal budget at MCR proposed Jetty Site E and the North Site profound. areas be The removal could dynamics is uncertain to the due (via from mcy of of sand MCR sites,” proposed Deep a Corps Water subsequent placement and at dredging) Site could accommodate excess equiva- site would be “deepwater” dredge spoils. Corps The conducted a removing the above below lent to analysis comparing “conflict matrix” dis spit. Peacock The result of portions of Deep at E posal Site Water Site. such mass removal littoral sand a Ultimately, it concluded benefits Local likely pos- would be adverse: E, limited dumping at Site which would may erosion result. regional sible coastal preserve dispersive that site’s nature and jetties stability The be MCR to prevent amplification wave due mound scour, toe re- to increased reduced due ing, outweighed placing the costs some such a littoral sediment def- sulting from Deep amount of at the sediment Water icit. before, we our Site. As have held role is reveals, the was
As this statement for “judgment not substitute our that of fully potential erosion effects aware of the wisdom concerning pru or disposal. Acting by deepwater entailed of a Once proposed dence action. satisfied knowledge, upon evaluated that a has taken ‘hard proposing agency potential plans and structured its sites at a look’ decision’s environmental conse disposal. minimize such quences, at an end.” the review is State of options In weighing numerous for ocean (9th Block, v. Cal. Cir. material, dredged disposal of 1982). Here, province it is not our potential for consistently considered placing assess the some amount wisdom to sediment coastal erosion due loss. Deep of sediment in the Water Site. Our sites ocean evaluating ten candidate for the Corps role is to ensure that simply Corps gave “great weight” to disposal, the including considered all relevant factors— “[njearshore sites assumption potential disposal such exacer for potential to materi- greatest keep have the arriving erosion'—in its decision. bate analy- al in the zone.” Based on its littoral so. Corps clearly The did sis, Corps ultimately recommended only considered sediment E, Site, North Site Site South loss, conscientiously dis- (these structured its ultimately two sites latter became Site) much as posal plan possi- to minimize it as EPA designation Deep Water Appendix Exhibit H H the 1999 Disposal Material ble. Dredged as Ocean Sites. deepening project to reduce over- signifi- the channel 7. Because the MCR involves dredging amount of cantly greater all as well as the channel volume of material deepening placed disposal to be ocean potentially available for ocean than FSEIS, (225 particular and in sites. The 2003 channel and maintenance J, extensively examines the yards cubic Exhibit million cubic versus million removing yards), Appendix material from H focuses the ramifica- cell, the littoral deepwater tions of material from maintenance negligible. concludes that it is project. later modified *11 1136 Integrated Feasibility Report and E.” in that regard
Final It is illustrative this 1997, Impact presents Environmental Statement between 1973 and continual use of Plan Management Monitoring which any E in persistent Site had resulted objectives, which identifies five one of em- mounding. Integrated While the Final keeping within the littoral phasizes sand Feasibility Report and Im- Environmental counteracting system erosion. Consis- pro- pact Statement as well as the FSEIS Corps’ finding placing the tent with pose dispose authorization to all of the of material dredged depths at water shallow- dredged Deep material at the Water dispersion than 60 feet er maximizes Site, Corps clearly presents option the this environment, into the littoral the Plan back only “contingency planning purposes” of material requires disposal dredged and as a “worst scenar- representing ease” first, and the Jetty Site E North Site Corps io. planned place has never Deep representing Water a non- the Site all of the material from the MCR option. last Final In- preferred While the Deep in the Water Site. tegrated Feasibility Report and Environ- of Because how the struc Corps has Impact mental Statement states elsewhere disposal plans, tured its it is not reason Deep that the “intended” use of the Water ably probable that it will use the entire to accommodate all million Site is 225 cubic capacity Deep of the Water Site. This calls material, (“mcy”) of yards question into whether NEPA re even Management term is misnomer. As the quires Corps analyze the environ Monitoring reveals, Plan mcy mental effects of all placing 225 dynamic capacity must first exhaust the in Deep sediment Water Cali Site. See E and the North Jetty Site Site before 761(9th Block, v. 690 F.2d Cir. fornia any in placing Deep Water 1982) (holding that an im environmental Site, ultimately which contain far less will pact reasonably statement must contain “a mcy than 225 of sediment. thorough discussion of the as significant in Accordingly, denigrating pects probable of the environmental conse analyses, exaggerates NWEA the maxi- action) quences” proposed of a (quoting mum amount sediment that the Corps Morton, Trout v. Unlimited in place Deep will Site. Water (9th Cir.1974)) added). (emphasis 1283 long- most conservative estimate Nevertheless, above, as discussed dispersive term E capacity of and the Site take a did hard look at remote Jetty mcy North Site per year, mean- possibility, recognized “profound” ing that the will only place have implications using the entire authorized per year mcy 2.5 Deep Site.8 Water capacity the Deep Conse Water Site. Other estimates of dispersive capacity quently, took step the additional E Jetty of Site and the North Site are acting upon this knowledge to ensure higher, much Integrated Final dispose that it will of an amount nowhere Feasibility Report and Environmental Im- mcy near 225 at that site. pact possible Statement states that “it is (and all) majority regulations governing Strict perhaps ocean dis- annual average posal volume of material could ensure not dis- will placed Jetty be the North pose mcy Site Site of all 225 of sediment figure appears capacity This in the Final Inte- of the Shallow Water Site even grated Feasibility Report and Environmental greater than of Site E because Impact dispersive Statement and includes larger Water Shallow Site’s area. capacity Presumably, dispersive of Site E. *12 E Integrat- Corps temporarily expanded Final Site be- The 1999 Site. Deep Water and Environmental Feasibility Report “high of its rate” and dispersion ed cause the designating proposes Impact Statement potential dredged placed for material there Disposal Material Dredged two Ocean into the littoral envi- to be “re-introduced Site) E(later, Sites, the Shallow Water Site Washington ronment of the coast.” This However, the Deep Site. Water by in part request move arose from a the designate authority final to EPA maintains Washington Department Ecology in or- dumping. See sites for ocean these to retard of coastal der erosion beaches. process, of this part § 1412. As U.S.C. clearly The record reveals the and moni- management have a sites must Corps potential considered the for coastal dump- limits defines and toring plan which due to loss. The erosion sediment there. See 40 C.F.R. ing allowed practices disposal plans even structured to minimize discussed, Management the § As 228.3. possibility possible. as much as We deep- the channel Monitoring Plan for hold that took a look thus the hard of the 1999 part which is ening project, removing at the effects of MCR sediment Integrated Feasibility Report Final system. from the littoral Statement, clearly Impact Environmental dispose will that the establishes first, b. Potential Direct Sediment in littoral sites
dredged material only for reserving Deep Water Site Loss from the Channel Here, Corps’ “prefer- spoils. Project excess Deepening system in the littoral disposing for ence” Similarly, the 2003 took a hard FSEIS implies. that term Be- much more than removing look at the effects of sediment Monitoring Management cause deepening, from channel and concluded that the will dis- Plan establishes practice not diminish such would first, system in littoral of material pose availability in the littoral cell. sediment to practice may from that lead deviation concerns, undermining Further NWEA’s Deep Water Site. de-designation Integrated Final Feasi- between the 1999 Furthermore, the Plan itself outlines sev- bility Report Impact and Environmental altering dispos- options potentially eral FSEIS, and the 2003 Statement upon ongoing review practices al based proposed project, re- Corps altered impact: operational of environmental proposed ducing both the volume location, changes in site and dis- changes, dredging well as the amount of materi- as continuing disposal particular at a site. deepening slated for al from channel Thus, establishing plan in addition to in As reflected the 2003 disposal. ocean loss, Integrat- Final minimize sediment that, FSEIS, al- Corps concluded Feasibility Report and Environmental ed tered, project sim- the channel mon- proposes plan Impact Statement enough not remove sediment ply would itor, alter, terminate perhaps even an-environmental difference. Con- make in order dumping Deep at the Water Site years im- of maintenance of negative minimize environmental struction and 20 pacts. navigation 43-foot proposed mcy an estimated 70 would remove demonstrating hard Further place River and from the Columbia sand look, present in addition to and future Approximate- upland disposal it in sites. loss, mitigate plans to dis- mcy sand would be ly 40 changed past disposal practices along navigation chan- posed of back of sedi- maintain the maximum amount sites ecosystem restoration nel or ment within the littoral cell. estuary. Critically, the channel on sediment re- conjunction veals volume sand removed availability pro- with other dredging would reduce the available jects, including jetties, project, supply sand in the riverbed. The FSEIS and the Federal Columbia River Power concludes: System. The FSEIS reveals river removal of sand from the river will
[T]he flow rate mediated the Federal Colum- *13 transport not alter sediment to the estu- System any bia River Power dams—not J). (Exhibit ary The volume to be past dredging navigation or future in the dredged life of over the overwhelming channel—is the driver of only tiny a fraction of the total volume of changes availability to sediment in the es- addition, sand in the riverbed. In trans- tuary: “The reduction in the Columbia port potential, supply, rather than sand discharge River’s net sand to the MCR limiting supply is the factor in sediment early since the 1900’s is to related lower estuary. to the discharges flood and not Ultimately, by considering SER 295. navigation jet- channel or the MCR of material from both the Regarding jetties, ties.” the MCR channel, navigation MCR and the they FSEIS notes that have had some a hard look at took the effects of impact availability, by on sediment reduc- directly removing sediment from the litto- ing sand movement from the MCR into ral through operation cell of the channel Bay Baker and across Clatsop Spit into deepening project. by causing large south channel and discharge of sand from the to the
ii. Potential Sediment Loss from However, ocean. repeatedly Exhibit J un- Hydraulics Changes in River and reality “[djeepening derscores the will Transport Sediment Rates not supply reduce the available sand also took a hard look at expected hydraulic changes [from second mechanism which channel deepening] channel are too small to meas- potentially could reduce sedi urably transport alter sand or ac- erosion/ availability estuary: changes ment in the estuary.” cretion in the river or Ultimate- to hydraulics transport river and sediment ly, “deepening navigation rates. J to the 2003 thor Exhibit FSEIS estuary river and will not alter the oughly analyzes dynamic and con transport through sand the MCR nor the cludes that channel have no will budget sediment of the littoral cell.” The appreciable impact on transport. independent Ecosystems Sustainable Insti- Corps prepared Exhibit J direct expert panel subsequently tute affirmed response Washington to concerns from the Corps’ analy- extensive sedimentation Oregon regarding in 2000 sediment trans ses. As a further indication of the port. throughout Thus com- years numerous study, prehensiveness studies, did simply not stake out a position it; attempt Washington defend consis Oregon withdrew then- look,”' tent with the dictates of a “hard objections project upon and certified the open input remained from stake considering analyses. the new analyses holders and conducted new * * * address their concerns. See Friends
Payette v. Horseshoe
Hydroelectric
Bend
Klamath-Siskiyou
NWEA cites
Co.,
(9th
Cir.1993).
988 F.2d
Mgmt.,
Ctr. v. Bureau
Land
Wildlands
(9th
matter,
Cir.2004),
As a
scrupu-
support
threshold
Exhibit J
lously
impact
considers the cumulative
its contention that
the Corps’ cumulative
case,
upon
That
evidenced
its decision to act
analyses are deficient.
however,
mini-
clearly distinguishable.
knowledge
plan
and structure its
the Bureau of Land
Klamath-Siskiyou,
deepwater disposal.
mize
original
tim
had divided
Management
In conducting
refining
analy-
these
component
four
tim
project into
ber-sale
ses,
not
acted alone. While
sales,
assess
preparing environmental
ber
dispositive,
“signifi-
we have found
found” Actions Past and Future mcy of material from the MCR reject also contention hard look We NWEA’s Deep Water Site. to evaluate the cumu- problem at the of coastal erosion is further that the failed actions, projects argues are not connected and 9. NWEA also that the should MCR deepening joint only have considered the channel and re- evaluation of the two was actions,” projects as "connected and quired they a cumula- to the extent that had jointly thus evaluated both in the FSEIS. See impact on the environment. NWEA does tive 1508.25(a)(l)(stating § 40 C.F.R. that con- ruling appeal the district court's required scope nected actions fall within the actions, and projects two are not connected statement). impact of an environmental arguments on the FSEIS' instead focuses its order, summary judgment the district analysis. impact cumulative court ruled that the channel impact deepening pro project lative of the channel will have little or no on impact ject light past future actions. salinity intrusion. Council, 027(“Cu Lands F.3d at 1
See Council, NWEA relies Lands which requires mulative effects the Final states Impact that “the Environmental Environmental Statement Impact to ana give sufficiently Statement must detailed lyze impact proposed project of a catalogue present, of past, pro- and future light project’s of that interaction with the jects, provide adequate analysis about current, of past, reasonably effects how these projects, differences be- projects.”). foreseeable future projects, thought tween the are to have i. Impact, Along Cumulative impacted the environment.” 395 F.3d at Actions, Salinity Past On 1028. Lands held as Council insufficient argues NWEA that the FSEIS does not impact environmental statement adequately analyze the cumulative effects had “no discussion the environmental salinity past projects, increases harvesting] from past[timber pro- notably project. disagree. the MCR We jects basis, on an might individual which Because FSEIS concludes that have analysis about alternatives informed will have virtu- presented project.” for the current Id. at salinity, no ally effect on detailed catalogu- added). 1027 (emphasis past Cataloguing *15 past of ing projects’ impact on salinity logging projects’ impact environmental analysis would have “informed about purpose would serve of promoting “an presented for pro- alternatives the current informed assessment of environmental ject,” unnecessary. and was Id. policy considerations and choices Contrary assessment, to NWEA’s public agency personnel upon review analyses extensive of the channel of the Final Environmental Impact State- deepening project’s impact salinity on did Here, however, ment.” Id. at 1028. nu- indeed include encompassing past data merous in the studies FSEIS demonstrate projects. infra, See Part IV.D.ii. The that deepening project the channel would Corps’ analyses historical included data re- virtually have salinity. no effect on There- garding salinity dating intrusion back to fore, in case, this cataloguing past projects’ the 1980s. The FSEIS references the sa- salinity effects on would not have informed linity analysis in the 1983 environmental project assessments about the al- and its impact statement for the project, MCR ternatives, FSEIS’ this anticipated which project that the MCR topic was sufficient. yield salinity would minor increases in the estuary. The Corps also stated during the period
comment prior to issuing the Impact, ii. Along Cumulative with “description that FSEIS of existing Upstream Dams, MCR Jetties conditions includes impact the cumulative Transport on Sediment of historic actions.” The Sustainable Eco- reject argument We NWEA’s systems panel agreed, Institute stating adequately did not consider that “the evaluating baseline for informa- deepening project’s cumulative ef tion should be the current conditions or fect on transport light sediment of exist state the physical biological compo- ing jetties upstream MCR One dams. nents and relationships lower Co- objectives explicit lumbia J ecosystems.” Exhibit was Critically, nu- present-day merous address of jetty studies cited in “the construc FSEIS reveal that the channel deepening tion and flow on regulation sediment trans- Impact Along iii. Cumulative effects of MCR cataloguing the port.” Future Actions recognizes jetties, the sand jetties reduced MCR [t]he assertion, Contrary NWEA’s Bay into Baker from the MCR transport Corps adequately addressed foreseeable into the south Clatsop Spit and across ongoing impacts, particularly future How- by ocean waves. channel caused project. Regarding operation of the MCR discharge ever, large caused a jetties court impacts, such future has held vicinity, to the ocean. MCR and from the “[gjeneral ‘possible’ statements about inlet and from the The sand eroded risk’ do not constitute a effects and ‘some following jetty flank of the inlet south justification regarding a ‘hard look’ absent outer deposited construction has why more definitive information could not delta, and the shore- Spit, Peacock Cuddy Moun provided.” Neighbors be Beach, Washington, along Long lines Serv., tain v. U.S. Forest Plains, Clatsop Oregon. 1380(9th Cir.1998) (citation omitted). As Furthermore, explains that the above, precisely it is because the discussed large amount jetties have “caused MCR negative implica Corps was aware of zone accrete in the littoral years’ worth of disposing tions of of the entrance” to north and south Deep at the dredgings Water Site MCR upstream Regarding River. and Moni developed Management that it dams, their Corps emphasizes toring prioritize disposal Plan to discharges signifi- has control over flood at the Shallow Water dredged sediment Flood dis- cantly sediment flow. impacted Furthermore, Jetty Site and North Site. dams, directly affect charges, caused consistently operated the MCR and account for the vast transport capacity “[tjhere deep is no plan since 1983 and changes in sediment bud- of historical bulk ... change pro en or otherwise *16 get. a hard ject at this time.” The took past these extensively cataloguing Upon mcy disposal of 4.5 anticipated look at the that effects, concludes the FSEIS per year from the dredged project’s incremental deepening channel planned appropriately and MCR altering sediment flow contribution to minimize coastal erosion. states, As Exhibit J negligible. would be in the River’s reduction “[T]he Impacts D. Direct to the MCR since the discharge net sand Toxicity Impact i. Direct on to lower Columbia early 1900’s is related reject argu further NWEA’s We naviga- and not the discharges River flood Corps’ analysis of the effects ment that the jetties.” The tion channel or the MCR toxicity defi deepening channel on that, comple- after Corps thus concludes it failed to test areas outside cient because deepening project, tion of the channel toxins. As a navigation channel for a likely not to be detectable “there is matter, 2001 Bio preliminary or sand budget in the sediment change premise contradicts the logical Assessment River.” within the Columbia We transport criticism, for it finds underlying NWEA’s consid- Corps properly hold that the thus expected are that sediments pro- “[n]earshore ered the cumulative activities as by dredging jetties up- to be unaffected posed project with Evaluating project.”10 sociated with this dams. stream appears Exhibit H of the 2003 FSEIS. Biological in 10. The 2001 Assessment nearshore sediments would thus have little where the sediments are known project’s bearing relatively on the channel to be clean.” toxicity, dredging impact on since river disturb expected to these sediments. Salinity Impact on ii. Direct acknowledge that limited did argument NWEA in its fails adjustment side-slope amount of would oc- did not take hard look at the years cur over the course five to ten deepening project’s channel direct effects along five locations the river be- discrete estuary salinity it did not because em previously cause have received these areas appropriate ploy analytic tools. For the dredged material. Because mate- Integrated Feasibility 1999 Final Report sand, however, rial is clean contaminant Statement, Environmental Impact sampling unnecessary areas these was Corps analyzed salinity by utilizing the so- because this sediment would not have con- RMA-10 methodology. called WES toxicity. tributed to river argues While NWEA this model is Nevertheless, explained response outdated, it offers no evidence that comments on the draft NWEA’s passage time has decreased its effec FSEIS, did test for out- toxins tiveness; this model has been “successful navigation Specifical- side of the channel. ly applied” study estuaries in Cape ly, pursuant Dredge tests conducted to the River, NC; Bay; Fear San Francisco Material Evaluation Framework concluded Galveston, Corps’ analysis TX. The con level of “[n]o established concern was significant biological cluded that “[n]o im any samples exceeded in of the 23 tested” pact salinity would result from changes metals, hydrocar- polycyclic aromatic predicted for the proposed deep channel bons, pestieide/polychlorinated biphe- A ening.” study second prompted nyls, including samples two from outside Ecosystems Sustainable panel Institute channel. navigation Biological updated the first model accommodate
Assessment notes risks from shore- concerns about low flow conditions and higher line sediments were than that of again concluded that “the channel deepen sediments, up- higher were ing actions will have little to no impact on stream than in the lower Columbia River. salinity study, intrusions.” In a third However, it concludes that potential “[t]he FSEIS, commissioned for the 2003 *17 appears cumulative risks be- negligible Oregon Health and Sciences Universi cause all posed negligible contaminants ty/Oregon Graduate Institute employed risks.” ultimately The FSEIS concludes modeling technology different and again that “while historic actions resulted have concluded that would in localized sediment contamination in produce insignificant changes salinity some parts larger project (i.e., of the area previous intrusion. As with the WES outside of the areas to be dredged), the study, RMA-10 Ecosys the Sustainable channel improvement project not is ex- pected panel tems Institute an reviewed the make incremental contribu- OHSU/ study quality tion to OGI and confirmed the degradation.” It results. significant NWEA independent challenges validity note that While the model, Ecosystems panel provides Sustainable new no Institute OHSU/OGI analyses cogent validated by concluding challenge validity these to the of the model, “contamination was RMA-10 essentially non- WES which led to similar issue, sediments, even if suspended findings effectively fine applied has been and especially regard to channel in a multitude of contexts. salinity analy- impacts into arguments attack on the cumulative about a final
As Corps sis, argues faulty used analysis. Corps cost Given that the NWEA model, bathymetric in its data outdated took a look at these is- hard substantive falling below NEPA standards. See sues, thus challenges already these have been Council, 1031(holding Lands addressed. analy- an may data render
that outdated reject the that the We contention NEPA). inadequate under NWEA sis adequately failed to consider costs bathymetric that bank-to-bank contends jetty associated with deterioration and necessary produce req- are surveys analyses coastal the Corps’ erosion. Since data, and that the last con- uisite reasonably concluded that the channel However, one NWEA ducted would deepening project not exacerbate why not demonstrate bank-to-bank does erosion, jetty or deterioration coastal ex Furthermore, surveys necessary. are cluding anticipated items from these has conducted annual cross-line appropriate. costs was length pro- surveys over entire ject surveyed adequately poten- most of the shal- The Corps area considered estuary areas of more re- low-water shipping tial declines in traffic. For exam- cently around 1980. ple, Exhibit M of FSEIS assumes “the containerized loses Impacts
E. Economic
Puget
cargo
ports.”
market share to
Sound
reject
challenge
also
NWEA’s
presents
a much more
We
2003 FSEIS
analysis. We have
Corps’
to the
economic
capture
for the
conservative market
rate
“[ijnaecurate
in
economic
recognized
Port of
than had the
Final
Portland
purpose
of an
formation
defeat
Feasibility
Envi-
Integrated
Report and
statement]
...
[environmental
Further-
Impact
ronmental
Statement.
agency’s consideration
‘impairing
more,
review of
independent
technical
effects’
adverse environmental
in the draft
analysis
the benefits and costs
public’s
pro
of the
‘skewing
evaluation’
assumptions
FSEIS stated that
Natural
agency action.”
Res.
posed
Def.
overall conclusions
benefits
Council,
(quoting Hughes
sources
1983,
62,
review,
at
http://
at
available
of experts
respectively,
the costs
www.iwr.usace.army. mil/iwr/pdf/p & g.pdf
its
benefits contained in
economic
(last
2006) (“Guidelines”).
23,
visited Feb.
analyses.
panels
Both
concluded that the
require
Corps to in-
guidelines
These
Corps’ analyses were reasonable. Based
foreign
accruing
flag
clude benefits
ves- on our
independent examination
the rec-
require segregation
sels and
do
ord,
Corps’
we likewise find that the
eco-
foreign
analyses
domestic
in
benefits
analyses
require-
nomic
satisfied NEPA’s
development.
national economic
ments.
reject
argument
NWEA’s
We
F.
the Niemi
Exclusion of
Declara-
in a multi
engaged
should have
tion
port analysis
any gains
to assess whether
from the channel
would
Finally, we
hold
district
expense
come at the
other domestic
court did not abuse its discretion
strik
ports. An Economic Technical Review ing the declaration of economist Ernest
panel,
Corps,
convened
examined Niemi. Niemi stated in his declaration
the Corps’
economic
and conclud
request
that he
it at
prepared
NWEA’s
‘multi-port
ed that
results
analy
“the
aof
pro
“determine whether or not the FSEIS
unlikely
tip
sis' would be
the cost-bene
misleading description
vides a
of the Pro
(emphasis
original).
any
scales.”
in
fit
ject’s potential
impacts.” Quot
economic
event,
statement
that a multi
Asarco,
EPA,
ing
1153,
Inc. v.
616 F.2d
port analysis
likely
in higher
would
result
(9th Cir.1980),
district court
projected
appears
benefits
reasonable.
struck the declaration because “consider
defining
study
When
area”
“economic
ation of
‘to
extra-record evidence
deter
for a proposed navigation improvement mine the
...
correctness
wisdom of
[or]
project,
agency should,
appropri
an
when
”
permitted.’
the agency’s decision is not
ate,
nearby, existing
include
harbors which The district court acted
within
well
in
experience
traffic
decrease
after
discretion
do
so.
improvement.
the proposed
Guidelines 62.
We have held that
of agency
review
However,
calculating
the economic bene
action
NEPA
under
is limited to the ad-
proposed project,
fits of the
the agency
may only
ministrative record and
be ex-
should
the aggregate
consider
reduction in
panded beyond
explain
agen-
record to
shipping
across
costs
the entire economic
cy
Payette,
decisions. Friends
Thus,
study area.
fact that
efficien
997;
Thomas,
F.2d
see
Love v.
improvement
cy-enhancing
may>draw traf
(9th Cir.1988).
1347,
Accordingly,
fic away from less efficient harbors actual
administrative review disfavors consider-
to,
ly contributes
than
rather
subtracts
ation of extra-record evidence. Florida
from,
anticipated
of that
benefits
im
Lorion,
Light
729,
Power &
Co. v.
470 U.S.
provement. Accordingly, “Cost reduction
(1985)
105 S.Ct.
H45
Conclusion
and V.
Corps’ decisions
explain the
to
quate
hard
has taken a
agency
that
reveals
pass
the office of this court to
It is not
factors.
pertinent
at all
look
an
action or to
agency
wisdom of
upon the
study
proposed
agency
an
require
a dis-
carved out
previously
have
We
simply
Our role is
action ad infinitum.
gen-
to the
exceptions
narrow
set of
crete
agency has taken a hard
assure that the
evidence,
against extra-record
eral rule
case,
In this
proposed
at the
action.
look
in this case.
applicable
are
of which
none
look
has demonstrated the hard
Corps
in Lands Council:
As
held
we
nu-
studies over
by performing exhaustive
circumstances,
courts
district
limited
In
soliciting
accommodat-
years,
merous
evi-
to admit extra-record
permitted
are
stakeholders,
thorough-
input ing
(1)
necessary to
if admission
dence:
re-analyzing areas of
concern.
ly
particular
con-
agency
“whether
determine
deepwater disposal
Corps
The
considered
has ex-
relevant factors and
sidered all
plans
its
order
of sediment and modified
(2)
decision,”
if “the
its
plained
po-
It
to minimize sediment loss.
studied
in the rec-
on documents not
has relied
hydraulics and
changes to river
tential
(3)
ord,”
the rec-
supplementing
“when
It
that there would be none.
concluded
technical
necessary
explain
ord is
salinity
separate
three
analyzed
effects on
(4)
matter,” or
subject
complex
or
terms
using current data.
It examined
occasions
showing
plaintiffs make
“when
navi-
toxicity,
within and without the
both
faith.”
agency bad
im-
It assessed economic
gation channel.
measurements of
pacts using realistic
Council,
1030(quoting
F.3d at
Lands
costs and benefits. The
project’s
F.3d
Biological Diversity, 100
Sw. Ctr. for
deep-
consider the channel
simply
did not
1450). Here, mentioned, the record
isolation,
analyzed
but
its
ening project
considered all rele
reveals
conjunction
cumulative
adequate
an
ba
provides
factors and
vant
The
re-
projects.
and other
decisions.
explaining
sis for
Oregon and
to concerns from
sponded
that
not demonstrated
NWEA has
availability
about sediment
Washington
the sole source of
Niemi declaration was
that led
analyses
provided
additional
judi
which
any vital information without
The
certify
project.
states
“straitjacketed.”
As
review was
See
cial
subjected
analyses
to review
Furthermore,
arco,
just one dimension of the Columbia River’s sented with Northwest Environmental Ad- importance to the Northwest. The Colum- challenge vocates’ Army Corps’ man, bia River is central to the life of compliance with National Environmental beast, Northwest; and fish in the it is a (NEPA). Policy Act Northwest Environ- system complex by interdependen- defined (NWEA) mental argues, Advocates and I cies. agree, Army Corps has failed to Perhaps the most iconic of these inter- satisfy its obligations under NEPA to ade- dependencies river, among is that quately study direct, either the the indi- salmon, and A healthy fishermen. river is rect, or the cumulative effects of channel vital to endangered salmon and steelhead deepening, particularly impacts trout and to the fishermen rely who erosion, dredging upon coastal release of World, these fish. Virtual Columbia Riv- toxicity, estuary salinity, that affect er, The Geographic National Society at both addition, humans and salmon. In http://www.national geographic.com/earth- (last economic pulse/columbia/index_flash.html analysis deeply visit- 2006). ed June adopting a methodology Salmon and steelhead for meas- flawed— are they spend uring the first the costs and two benefits associated anadromous — years of water, their lives in fresh like with channel deepening that enables it to cool upper waters of the reaches avoid consideration of reality economic Columbia. sea, These fish then swim to present a far rosier picture of the eco- resting adjusting in the critical estu- nomics channel deepening than is realis- ary at conjunction of fresh and salt tic. The Corps certainly produced an water. ocean, After a years few in the enormous during record pro- this NEPA adult salmon and steelhead return to the cess; however, simply producing a record fresh waters of the reproduce, Columbia to presented the size to us in this case does swimming upstream to places where not mean that the agency has answered they were hatched. The Columbia River questions, correct undertaken relevant is vital salmon and steelhead habitat and studies, or adopted appropriate methodol- was teeming once with these fish. Sadly, ogies. Army Corps has not met its salmon and steelhead are in serious de- obligations to take “hard look” at the cline, decimated obstruction of passage direct, indirect, and cumulative because of dams and destruction of habi- channel, the Columbia River fact, tat. year this sport-fishing on the and its economic obviously Columbia was very closed until recently flawed. A serious look at the economics of because the numbers of returning fish are suggests that it is like Kodiak’s perilously low. Fishing Salmon Halted proposed bridge to nowhere. on Columbia River: Concern About a My Decrease in concerns in important Chinook Populations case are Ten-fold Action, Spurs Barnard, heightened Jeff enormity Associated of the conse- 2006). (Apr. Press Major efforts quences of wrong Adequate decision. *21 ports Grays Har- analysis, (Puget which west Sound and thorough and fact-finding bor) NEPA, all-important freight core of are can handle the and offer safer are at the Army Corps’ deci- longer make sure trip to shorter transit —the river is right one. The (one-hundred in the end is the sion from miles the bar to Port- important a re- River is too land) (the fraught and with hazards shift- I, of allow its misuse. for all us to source ing shifting bar at mouth and sand therefore, respectfully dissent. river). up Two-thirds of the contain- bars already river. ship er business left the problems, we of serious light these up The Portland Port that is the Willam- for the agency reverse remand should and deepened ette River be because of thorough study cannot a more of to undertake and deepening pollution. of the as- No wonder declined channel ocean site on coastal ero- from disposal displacement sociated to of traffic consider sion; analysis of scientifically-sound a port one to It insisted American another. salinity in toxicity to and the river changes supposed foreign to including benefit at estuary; rigorous and a more look and part Amer- ships of the benefit. Should project. proposed of the the economics foreign taxpayers ican take comfort that permit much is at stake to Too of principal bottoms are beneficiaries incomplete and move forward with such to any project? in the economies NEPA it. inadequate information. forbids analysis side? What about the cost No potential is made of the costs devastat- ANALY- I. THE CORPS’ ECONOMIC ing that result to the Wash- erosion SIS jet- ington Oregon coastlines and the I have much to criticize about ties. adequately to consider environ- failure claims, gravamen Appellant’s consequences proposed its ac- mental Army agree, I with which that I get I that. But choose to tion. will to Corp’s ratio to attempt to benefit-cost disgraceful $1.66 $1 first talk about its pro- agency cents of its has failed justify the dollars and inaccurate because factors, project. This should not come as a in an posed resulting consider several any of us. The is wont surprise project’s economic overstatement and overvalue benefits to undervalue costs its the understatement of benefits and get it can (1) so that on with mission— argues: Appellant costs. water
constructing projects.1 the costs associated agency understated by failing to consider envi- with Here, objectively looking instead ronmental externalities associated is a proposed project net eco whether channel economy, benefit to the American nomic d (2) over- material a has chosen metho associated with stated the benefits reaches its desired result —admitted even distinguishing not benefits perhaps it as not the best methodolo foreign economy the U.S. those justifies gy methodology —but considering declining contain- parties, It facts: ignores salient project. North- TIMES, July Corps, Felicity Barringer, Chance N.Y. Senate Backs New Reform Cf. 19, by Engineers, 2006, Projects (praising N.Y. Controls the Senate bill at A20 TIMES, (detailing July at A18 noting finding that the studies several panels requiring independent Senate bill un regularly economic benefits and inflated experts to evaluate scientific economic costs). potential derstated environmental Editorial, projects); potential water A River, er-ship majority traffic into the Columbia notes that the FSEIS no- *22 undertaking analysis. jetties and not a finds that multi-port where the the Mouth of the Columbia River bewill undermined “[ijnaecurate agrees that majority The require repair and will result of the pur- economic information defeat the channel-deepening project. That’s be- pose agency’s of ‘impairing an EIS the it probability cause did not consider the of the consideration of adverse environmental that erosion would result from by ‘skewing effects’ evalu- public’s and the system. outside the littoral This is the ation’ action.” proposed agency of the of very type issue for Niemi’s which decla- Natural Council Res. v. U.S. Forest Def. ration should have admitted it been since Cir.2005) Serv., (9th F.3d out pointed agency factors which the did (quoting Hughes River Watershed Conser- not consider but should have. The Corps, 446(4th Glickman, vancy v. facts, analysis says without of that channel Cir.1996)). In Natural Resources Defense deepening jetties, will not the undermine Council, that we the Service’s held Forest presents but Niemi credible evidence to inflated assessment market demand for contrary, the that evidence the Tongass timber from the Forest National have path should considered. correct purpose “subverted NEPA’s providing remand agency complete is to to the for a decision with public makers an potential examination of these costs. accurate of the rel- assessment information concedes, evant to agency’s proposed majority evaluate” the As the the erosion finding action. Id. at 812. A damage past practices similar is from the Corps’ has required agency’s here: economic anal- been considerable. The tells itus ysis does not provide changed ways accurate assess- has its to minimize erosion ment of costs and benefits from the dredging MCR and the construc- planned channel-deepening project jetties. be- tion But it tells us nowhere analysis cause of failure to steps undertake what it would take control devas- that could decrease the tating benefit-cost ratio. erosion that occur if would consider- dredge
able material in the put deep-sea is Deep-Water Disposal, A. Costs prepared it has site it. Nor receive Coastal Erosion & Mouth of the suggested it that costs would in- be Jetty River Columbia Erosion volved. It apparent agency’s analysis is Economy B. Benefits to U.S. Lack costs economic this associated with Analysis of Multi-Port off, was insufficient. First because did consider the In addition to the fact the Corps
from resulting coastal erosion from remov- has understated costs associated with the ing sand from littoral system channel project, ap- impacts of channel deepening on the pears to have overstated economic ben- jetties, (a) analy- follows the economic efits of the channel deepening failing sis similarly incomplete failing adequately displacement account for consider the potential costs associated with shipping and trade from one American jetty (b) regard, another; and coastal erosion. In port failing to consider the agency’s analysis any of costs from suffers what if of the benefits associated with analysis same incompleteness as its channel would accrue to the (c) the cumulative effects of deep-water economy; failing dis- U.S. to undertake posal. multi-port might well show displacement of this economy from Consideration to the U.S. no net benefit port shipping from one American to anoth- Corps’ analy- deepening. channel in the project, missing agency’s analysis er benefits of of the economic sis M, benefits of various would decrease net associated explains shipping Exhibit corn, (wheat, response, barley, soy- deepening. commodities beans) ports Appellees respond Federal various M, analysis, FSEIS’ economic Exhibit as- shipping as the containerized trade. as well *23 Puget the has sumed a loss of market share to Corps claim that over- Appellant’s benefits, this has requires us to look Sound and therefore that issue these stated for.2 Corps’ analysis at there been accounted closely the —are that should factors the economic majority to the Contrary finding NEPA? The record have considered under Corps’ to the opinion, the failure measure question this that the answer to indicates economy net benefit to the U.S. from the neglected important “yes.” is The project wrong. Corps asserts that is The the that undermine ben- economic realities required separate it is to the benefits ratio presents. efit-cost from those to foreign to vessels the domes- However, Guidelines, economy. tic the majority opinion the is correct While mandatory Corps, that the provide the has assumed are on that Exhibit M of FSEIS procedure measuring to the loss of containerized trade the “the some Sound, 1143, at to national eco- Puget Maj. Op. beneficial contributions ports (NED) may development this nomic with loss be far associated there evidence navigation deep the draft features of water than the FSEIS estimated. The greater deepen- plans projects.” the resources Economic Corps estimates that Principles and Guide- generate will benefits Environmental ing $18.8 total, Re- lines Related Land of this for Water and annually. million Two-thirds Studies, million, March Corps’ Implementation from esti- sources comes the $11.7 10, 1983, http;// at gain ship- the containerized available mate of However, www.iwr.usace.army.mil/iwr/pdf/p g.pdf & trade. of the three ping two 2006) (last 13, April (emphasis at 58 carry car- visited shipping lines that containerized added). an Appellees’ argument that such to the of Portland have decided go Port Portland, analysis required is inconsistent with they longer to is not will no come the of these Guidelines and reducing language the amount of container- 2/3 of NEPA. cargo through purposes Portland. coming ized Puget recently to Ports of Grays miles' travel in Sound The Port at Harbor has ex- terminal, panded loop grain longer jour- at the rail its even Seattle and Tacoma and the unloading allowing (Portland, for more efficient ney ports of Columbia to the addition, AGP, soy- grain. a midwestern Vancouver, Kelama). exporter, a new terminal bean built the fact that I what to make of wonder analysis port. The undertaken economic dredge port proposal on Portland’s expansion did not consider this located, River, docks where its are Willamette which cut traffic to both lower-Columbia indefinitely postponed because been Grays Puget ports. Sound Port of Har- toxicity the fore- of the Willamette. For http:// Loop Grain Track at bor Terminal future, large go ships into cannot seeable gov/Projects/Rail/grays www.wsdot.wa. —har- loaded, Portland, except lightly whether or 2006); (last 26, see June also visited bor/ dredged. suggest I (last not the Columbia http://www.portofgraysharbor.com/ visit- analysis part the economic 2006). should also be Grays The Harbor ed June Port of ship many traffic. advantage cutting of container has the short (3) argues an Appellant conducting analysis also such would multi-port analy- have should undertaken require assumptions likely to render the analysis. part of economic sis as Such overly speculative.”). These outcome as- analysis provide insight would into anywhere are unsupported sertions ships channel-deep- whether the Although Corps’ Pan- record. Review ening project bring into is intended analysis el a multi-port recommended that already ports docking Columbia River are methodology, would have been better port. in another American If this is the analysis Panel found that such an would case, bringing ships those unlikely tip “be scales.” cost-benefit no provides net benefit national Original Review Benefit Comments and economy. Such a conclusion would under- Opinions Responses Team at 1 Review Corps’ mine the stated benefit-cost ratio of (Jan. 2003). That Panel en- Review spent. benefit for each dollar $1.66 dorsed the economic with- NED Guidelines discussed above indicate multi-port analysis. out *24 should, a agency step, that as first insists that the court must to such defer a study economic “determine the area.” methodological choice. Salmon This includes consideration “diversion Robertson, Concerned Citizens v. adjacent from or to competitive harbors as (9th Cir.1994). argument 1359 This competing well as distribution via modes of for agency deference would allow the to transport .... be adequate there should end-run NEPA’s obligations to do accu- discussion of the trade area to relative rate analysis by allowing economic adjacent ports any commonality and agency to choose methodology a might exist.” Id. at clearly not the appropriate more and then Army Corps argues that its choice to hide methodology behind choice of methodology one, awas reasoned to calling agency deference decision- a choosing methodology that did not em- This making. is not what NEPA envi- ploy multi-port analysis change did not While certainly respect sioned. we must analysis, the outcome of the economic and decisions, the agency’s technical where therefore that not doing one cannot be ignore those decisions to agency enable arbitrary capricious. and See Comments reality, acquiesce. we need not on FSEIS from Colonel Richard Hober- nicht, Commander, Army Corps; Robert Willis, Army Corps; E. Judy Grigg, C. Failure to Niemi Consider Declara- (Feb. 2003) Longview Port of at 23 tion (responding to criticism that the agency Further, court district erred not did not measure whether there was a ben- fully informing itself as to what critical through efit passed to economy the U.S. information the did not consider. multi-port analysis), and did not do a id. at The district court abused its discretion in its
34-35(explaining
choice of methodology:
striking Ernest Niemi’s declaration as im-
“The
selected an analytical method-
permissible
Only
extra-record material.
ology that
did
include multi-port
by considering it
it
could
know what the
(1)
analysis
it
required
because
was not
majority,
omitted. The
did
as
(2)
Guidelines;
Principles
court,
Asarco,
district
relies on
v.
Inc. U.S.
Corps concluded that such an analysis
Envt’l.
Agency,
Protection
weighed
several
Thomas,
Asarco in Love v.
Reaffirming
agency action.” 616
“judicial review
1347(9th Cir.1988),
F.2d
we stated:
be
“[Ajgency action must
at 1159.
F.2d
necessary
find it
to
may
“The court
review
the administra-
by scrutinizing
examined
explain
material
basis of
additional
agency
time the
made
record at the
tive
However,
recog-
agency’s action and the factors the
the court
Id.
decision.”
considered,”
and “the court
agency
nized that:
consider, particularly
highly
technical
unrealistic and unwise
is both
[I]t
areas,
going
substantive evidence
straitjacket
reviewing court with
agency’s
record.
It will often be
action where such
merits
administrative
highly
when
tech-
impossible, especially
necessary
background
evidence
involved, for the court
nical matters are
sufficiency
agency’s
determine the
took
agency
Love,
to determine whether
F.2d
consideration.”
at 1356.
all relevant
factors
into consideration
In this
our task is to deter-
case where
outside the record
unless
looks
agency
undertook ade-
mine whether
what matters
determine
fact-finding
that should
quate
but did not.
have considered
should
*25
part
compliance,
of its NEPA
have been
discharge
adequately
The court cannot
Niemi’s
question
the
is whether
declara-
in
duty
inqui-
a
engage
its
to
substantial
(a) background,
tion constitutes either
ex-
agency’s
the
ry
required
if it is
to take
(b)
planatory
or
information
substantive
relevant mat-
that it considered all
word
to
needed
“determine the suffi-
evidence
ters.
Id.
ciency
agency’s
of the
consideration.”
omitted).
(internal quotation marks
Id.
of these
If it falls into either or both
tensions,
court
these
the
To reconcile
categories, it should have been considered.
following:
the
held
agency
not
the concern
the
did
Given
necessary
reviewing
If the
court finds
analysis of relevant consider-
undertake
record,
go
the administrative
to
outside
ations,
provided
the information
Niemi’s
to
it should consider evidence relevant
cleanly into
sec-
quite
fits
the
declaration
agency'ac-
the
the substantive merits of
category.
It is substantive evidence
ond
only
information
background
tion
for
the
inadequacy
the
that demonstrates
purposes
... or for the limited
of ascer-
pointing out factors
inquiry,
agency’s
taining
agency
the
considered
whether
have considered and did
agency
the
should
fully explicat-
all the relevant factors or
considered,
Had
factors been
not.
these
grounds
or
ed
course
conduct
agency’s
to the
bene-
revisions
substantial
of the evi-
decision.... Consideration
to
cost
in benefit
fit-cost ratio of
$1
$1.66
or
to determine the correctness
dence
as
not
long
in order. As
it is
could be
well
decision is not
agency’s
wisdom of the
to
the court’s substan-
employed
substitute
if the court has also
permitted, even
agency,
of the
for that
tive determination
If
the administrative record.
examined
exceedingly useful
the Niemi declaration
agency’s
that the
the court determines
agency’s
of the
eco-
thorough
a
review
to
in-
inquiry
was insufficient or
course
area,
analysis.
highly
In a
technical
nomic
matter
adequate, it should remand the
sufficiency
the
light
it sheds
agency
to the
for further consideration
by
agency.
undertaken
compensate
agency’s
and not
It
appropriately
The district court
cited to
here.
its determi-
issue
bases
(1)
decla
Corps’
the Asarco rule but decided
nation on
assurance that it
had
to
ration
been offered
“determine
has
impacts;
considered those cumulative
provides
(2)
or
a
whether
not the FSEIS
mis
deep-water
treatment
dis-
project’s
leading description
poten
allowable,
posal
although
least pre-
impacts,”
(3)
citing
tial
Mr. Niemi for that
option;
changes
to dispos-
ferred
made
impermissible purpose. Northwest Envi
practices
al
for the Mouth of the Columbia
ronmental Advocates v. Nat’l Marine
Project
to maximize the amount of
Serv.,
C04-0666RSM,
Fisheries
No.
at 11-
cell;
sediment retained in the littoral
2005).
(June
To deepen expectations the channel to 43 either of plays over these out at thirty years, Project the next “total dredg- rate,4 different there will no room for be ing quantity” mcy -willbe “about 190 [mil- dredge new spoils dumped to be littoral yards] Project.” lion cubic for the Biologi- id., sites, deep-water disposal would 2002). Opinion (May cal at 12 Without necessary. way be making Another deepening, simply maintaining that, point any year, is given agen- (the channel at 40 feet no-action alterna- outcome, cy’s preferred disposal littoral DMMP/SEIS) spelled tive out in the over spoils, dredge dependent upon is at least the same time period, approximately 160 factors, uncertainty two both mcy dredged. would have to be In Id. acknowledged by which is A Corps. proposal sites, disposal additional ocean “single Deep Water Site was located and the Corps estimated volumes of ocean dis- 5-year sized to accommodate almost a dis- both posal for the Mouth of the Columbia (225 posal capacity mcy).” Id. at H-7. Project River and the channel-deepening Army Corps simply The has failed or dredging. channel-maintenance impacts perma- consider cumulative MCR O & M3 nent removal of sand from the littoral sys-
Annual 50 Years from tem both the Mouth the Columbia River and channel-deepening or mainte- mcy mcy 4.5 225 nance that if deep- is inevitable there is O & M 40-foot Total 40-foot Channel disposal. water The should have 1-20 Years 21-50 Years considered the cumulative impacts of re- 8 12 mey 20 mcy mey (the moving mcy at least total amount Total of material to both dredged be chan- Construction 43-foot MO & 43-foot nel deepening ongoing dredging) MCR 1-20 Years 21-50 Years Channel deep-water site, to the just mcy not mey mey_9 mcy_21 mcy_37 deepening. sediment from channel Although deep-water disposal, according insists has considered Corps, to the not is the first or most impacts cumulative on coastal erosion FSEIS, preferable option, see Exh. H at disposing material from both H-6 (“Dredged placed [dispos- material the Mouth of the Project Columbia River al sites expected closer to shore] channel-deepening project. move out of the site and feed the littoral contention, evaluating Corps’ the ma- system.”), disposal these ocean sites were jority two dynamics poten- focuses on selected because the mouth of Colum- (1) tially drive coastal erosion: bia dynamic.” “so Id. associated sediment preferred (1) is dependent upon outcome dredged from the Project and dredge volumes maintain both the (2) channel-deepening project and po- Mouth of the Project Columbia River changes transport tential the channel deepening exceeding ex- *28 (2) hydraulics river pectations given in any pro- caused these two year and the dredged jects. materials put Corps majority into The opinion near-shore and eroding sites at the rate anticipated. If focus on Exhibit J to the FSEIS and the FEIS, 3. Exh. H at H-6. quantity the sites. dredged Some of material likely placed will to be proposed have in the quantity dredged Deep "[T]he year; of that Water each material will Site this will in result placed be proposed in E being Site some permanently the North material lost from Jetty FEIS, Site is dynamics uncertain due the to of the littoral zone.” Exh. H H-68. Corps weighed con- Lastly, the whether FSEIS, H to the as well as Exhibit impacts con- other actions’ would addresses NWEA’s sideration of Neither FEIS. on coastal specific impacts analysis impacts the cern that the alter its the material dredged disposing Project. deepening erosion channel This is the Riv- of the Columbia the Mouth both analysis. the part crucial its consid- in the Project and channel er cumulative associat- eration the unquanti- disposal site remain deep-water the ed the Mouth of Columbia River essentially unknown. fied and dredging, the re- Project’s ongoing FSEIS finding lies on Exhibit J’s that “the reduc- supplemental the agencies’ Exhibit isJ in the net dis- tion Columbia River’s sand response Oregon in to and Wash- analysis early to MCR 1900s charge the since the is certify chan- the ington’s initial refusal related to lower Columbia River flood dis- over concerns about deepening project nel navigation not or charges and the channel transport and coastal erosion. sediment jetties.” at 6-72. The MCR FSEIS simply adequate. J is Exhibit FSEIS finds that reduced accretion proceeds in Exhibit J analysis Corps’ estuary is the result of the sand First, “his- considered follows. River, from the sand flow decreased changes in sediment toric trends upstream result of dams and concludes System” River transport Columbia “[ejxcluding historic effect of the decreased sediment trans- and attributed jetties, develop- navigation the dams port down the Columbia maintenance, including ment and mainte- analysis appears This be upstream. project, of MCR has not altered nance question- It follows that is sound. is what or estuary’s overall Next, “examined whether accretion/erosion able. Id. transport patterns.” bedload at 6-73. project itself would the channel far, analysis Fed.App. good. agency’s Br. so transport.” sediment So affect determined, first, fine, at 25. The that its consideration might except be channel will not reduce the dredging the transport of coastal erosion transport for because the available sand stops here. issues relatively surface area be that Exhibit J ex- Appellees point out of the entire riverbed percentage small how the Columbia River and the plains (3.5%) second, and, the riv- because historically moved currents at mouth deep, 100-400 feet erbed sand and distributed that sand downstream represents an being dredged amount also Washington Oregon’s along sand Then the insignificant percentage. the give-and- It also coastlines. describes channel-deepening determined estuary between take of sand on the River’s project’s impacts It analyzes mouth of the Columbia River. measurably small to hydraulics are “too upstream, the construction dams how transport sand or alter erosion/accretion downstream, jetties dredging the Co- FSEIS, Exh. J at estuary.” river or changed patterns. these lumbia River “Because the 2-3. The conclusion: be true and important This all the sand avail- Project will neither reduce whole, analysis as a but does not answer river’s transport nor alter the able be- question. the critical The difference sand, Project will in capacity to move obligated tween on the erosion or turn have no *29 in Exhibit provided and that J provide Fed.App. coastal accretion of beaches.” is as follows: Br. at 1156 explains, historically,
As Exhibit for deepening project planned J in the ocean part, the of disposal dredged most sand Maj. disposal Op. site. at To 1134-1135. largely system. occurred within the littoral this, majority establish the an references Although transport being patterns were alarming statement from the 1999 FEIS: altered, is, way that in which the sand If deepwater site is as used intend- being was changing, moved around was (4.5 mcy ed5 of sand placed per although being less sand was sent year for years), implications 50 on dams, downstream of once because down budget the littoral sediment at MCR and stream the the system amount sand in of adjacent profound coastal areas could be By contrast, remained the record fixed. .... The result of such a mass removal indicates that near-shore and beach dis of likely littoral sand would be adverse: posal permanent are not a solution possible Local and regional coastal ero- (outside disposal ocean of the littoral sion stability result. The of MCR system) increasingly will employed. be jetties may be reduced.... that, disposal Increased ocean means un past, being like the amount sand added). (emphasis moved around near mouth of the river majority The is correct—this statement will years, not remain fixed. Over fully does show that the Corps “was aware mcy may be removed from littoral potential of the erosion effects entailed system. This permanent removal of mate deepwater Maj. disposal.” Op. at 1135. rial system from the littoral is not the agency’s response, thereof, The or lack part same from moving sand one of the possibility very this troubling. is The ma- system littoral to another. Exhibit J does jority insists that H a Exhibit contains not address the effect of the removal analysis potentially detailed “pro- these system. sand from the littoral The found” and “adverse” effects. Not so. analyzes happens nowhere what when provides Exhibit H a process recital of the mcy is system removed from the littoral through went with other entirely, despite the fact that groups of potential deep- to narrow the list anticipated possibility, verging on a proba water sites and to select one that bility. majority would use. The finds majority opinion The accuses NWEA (harms) lists possible conflicts relying on the 2003 FSEIS establish its associated with potential deep-water each argument, when it is the 1999 FEIS that (which Army site “conflict calls contains the relevant of cumula- matrices”) provide thorough analyses of tive impacts. According to majority, the advantages and disadvantages of each FEIS, H, particularly Exhibit demon- fact, potential they site. no are more strates was of’ the “aware than tables and checklists. Undertaken serious on coastal erosion dis- each of potential deep-water the ten posing large quantities or all material sites, matrix, is, each both the Mouth the Co- such as it
1157
rejected this kind of under-
for 27 We have
flict,
conflict,
use
or a beneficial
no
a
site based
In
whelming specificity
characteristics
before.
Klamath-
specific
disposal
for ocean
factors
specific
eleven
held
did
Siskiyou, we
that tables that
§
40
228.6
in C.F.R.
specified
selection
site
“provide object quantification
the im-
for
selection
general
and five
criteria
only wheth-
pacts” where the tables noted
40
sites from
C.F.R.
disposal
of ocean
“unchanged,”
er a certain factor would be
FEIS, Exh. H at H-45-55.
§ 228.5.
“improved,”
“degraded,”
or
were inade-
be-
characteristics
specific
site
Among
quate
NEPA.
argue analysis that it “re- does. tive-effects under NEPA quires Impact the Final Environmental majority Bottom line: the finds that the analyze Statement to of a pro- by look” been “hard standard has satisfied posed project in in- light project’s of that that, Corps’ although assurance current, past, teraction with the effects of propose and both authoriz- FEIS FSEIS reasonably and pro- foreseeable future ing deep-water site for of all disposal jects.” Powell, Council v. 395 F.3d Lands dredge, Corps “presents this MCR Cir.2005) (9th added) 1019, (emphasis 1027 option only ‘contingency planning pur- for 1508.7). § (citing “ap- 40 C.F.R. It not is poses’ representing and as a ‘worst-case’ propriate of to defer consideration cumu- Maj. Op. (quoting at scenario.” impacts lative to a future date. NEPA FSEIS, H-6). strongly H I App. at dis- requires potential consideration of the im- agree majority’s with the conclusion that pact of an action the action takes before Corps discharged obligations under its place.” Cuddy Neighbors v. Mountain of by expressing NEPA dis- preference its Serv., United States Forest 137 F.3d pose dredged E material Site and at (9th Cir.1998) (emphasis original) in Site, Jetty the North rather than at the (internal quotation marks and citation site, deep-water though even substantial omitted). Army That pro- suggests evidence those sites lack the for deep-water disposal vided of all major- required capacity. In so doing, the dredged material from the Mouth of the ity that, deep-water has held because (even Project Columbia River as a “worst- disposal dredged of all materials from the scenario) sought case” and has authoriza- MCR is a “worst-case” scenario a tion of site with capacity sufficient and agency because the has revised its potential this outcome demonstrates that disposal plans developed manage- a “reasonably such an outcome is foresee- plan deep-water ment to minimize dispos- impacts able.” The of all al, not impacts need detail the Project materials from the MCR By admitting that scenario. it is a channel-deepening deep-wa- into the outcome, “worst-case” admits it should, therefore, ter site have been ana- solution, is a bad just but nowhere tells us lyzed under majority’s NEPA. The asser- how or if anything way bad tion that because the Corps was aware mitigation possible. is potentially impacts adverse and tried to C. Compliance them, in the Flaws study quantify avoid not it need or Majority Analysis impacts, simply those is inconsistent with this standard. majority’s reasoning is inconsistent requirements placed agencies The EIS must analysis “include a useful NEPA and interpreting our case law past, present of the cumulative NEPA. requires, The “hard look” projects. standard and future This a means discus sufficient, just not Corps express that the prefer- depth sion and ence not to reach a situation in all which detail to assist decisionmaker in decid water, dredge whether, disposed deep ing how, program or alter the and develop management monitoring impacts.” lessen cumulative Muckle plan accomplish intended to this prefer- shoot Indian Tribe v. United States Forest ence, 809-10(9th Cir.1999) Serv., but that Corps analyze the im- pacts outcome, (internal such if potential quotation even marks and citations omitted). hopes Muckleshoot, to avoid it. court Army That the standard. agency’s cumulative effects found *32 required of the “use- Corps required short” to take the “hard analysis “f[e]Il failed “merely agency the analysis” where ful impacts at the cumulative on coastal look” land to be ex- amount of the indicated] quantities of the dumping large erosion of the example, and whether for changed, the the dredged materials from Mouth of to har- subject commercial land would be and those from channel Columbia River vest, by optimistic conclusion.” followed deep-water the deepening proposed into Norton, County v. Churchill disposal site. Cir.2001) (9th Muckle- (citing 1080 analysis NEPA include an answer must 811). shoot, Army Corps’ 177 at The F.3d the question posed Appellant: to "What deep- cumulative effects analysis the if impact would be the on coastal erosion Project chan- disposal of water quantities all or of the material substantial material is analo- nel-deepening dredged dredged from the of the Columbia Mouth analysis rejected this court gous to the Project channel-deepening in statement Muckleshoot. of in disposed deep-water were the is preference against deep-water disposal a the to requires site? NEPA answer court with an providing this analogous to “reasonably question this because it a This not con- “optimistic does conclusion.” Talking foreseeable” outcome. around analysis.” stitute “useful outcome, possible explaining why that correctly Although majority the asserts outcome, preferred planning not the “engage agency that an need outcome, taking this all the minimize while analysis environmental most exhaustive possibility steps bring that would just has to take theoretically possible”; it fruition, has not make clear that Maj. Op. at 1139. None a “hard look.” theless, met its under NEPA. We satisfy obligations required what is applied agency a manner to under- standard must be should remand purpose Instead, of NEPA. Kla majority with the study. consistent take further 993(citing math-Siskiyou, F.3d deepening channel and authoriza- allows 1072). 276 F.3d at County, Churchill disposal pro- site to deep-water tion off, important identify at what it is First ceed, understanding without an of the even hard agency must take a look. of a effects on coastal erosion cumulative the agen asks us to find that Army Corps “reasonably project. future foreseeable” highly likely of a conse cy’s dismissal any proposed project, without quence its III. OTHER SIGNIFICANT IMPACTS consequences, of its satisfies assessment CHANNEL DEEPENING: OF “hard standard. This is inconsis look” AND SALINITY TOXICITY NEPA, a statute tent with the mandate Army Corps to eval requires NEPA table, requires agencies put on the “to impacts of uate the direct and indirect deciding agency’s pub and for for the deepening channel view, sufficiently statement lic’s detailed material, all considering “relevant and alternatives of environmental 1502.16, 1508.8; §§ factors.” C.F.R. making.” permit so as to informed decision Agency, 904 v. Envtl. Prot. Rybachek U.S. Here, us that Id. at 1072. tells Cir.1990). (9th 1276, 1284 F.2d Although a problem. there won’t be consequences admits the adverse Toxicity A. profound, it hasn’t studied what will will be Advocates Environmental Northwest if scenario comes happen the “worst-case” Army sufficiency of the challenges it. us to trust pass, asks Corps’ analysis of the effects of channel the navigation channel. process This deepening toxicity.8 on the river’s NWEA years will continue for 5-10 before the that, asserts side-slopes equilibrium reach with the on levels of toxins in channel hydraulics. Sand eroded from River, the Columbia failed to these sides will part become of the ac- draw adequate samples from the sides of transport tive bedload on the riverbed. riverbed, which as deep- the channel is FSEIS, Exh. J at 9. ened erode into chan- *33 By process, this deepening channel nel, mobilizing they whatever toxins con- re-suspend contaminants that had been majority tain. The holds there no in slopes isolated the side of the river-bed. need to test sediments from the channel concern, Despite Army (1) sides for two they reasons: because to toxicity failed test of a sufficient (2) by will not dredging, be affected number of samples sediment taken from any because material vulnerable to side- channel, navigation outside the analyzing adjustment slope is previously-dredged primarily samples collected within the material which must be toxin free. The therefore, channel. Corps, The has almost record refutes this. no data from which to analyze the impacts In Biological Opinion, its National adjustment of side-slope on the overall tox- Atmospheric Oceanic and Administration icity during the river and after channel (NOAA) Fisheries identified the Columbia data, deepening; without toxicity River’s “among to be highest effectively analyze cannot the impact of levels measured in estuarine sites in Wash- deepening channel not only juvenile ington Oregon.” Biological Opinion at upon salmonids dependent estuary, but high toxicity, just These levels of other users of the river. lethal, pose short of a serious threat to 4,000 The juvenile Corps claims a database of dependent salmonids upon the es- tuary, samples to mention from the potential Columbia Riv- adverse However, effects system. on humans and er species. other The there are several Army Corps explained problem problems with this database from the “side-slope adjustment” noting standpoint adequate of an analysis. NEPA First, only
After the initial 586 of the samples 4000 the riverbed have begin adjust would toxicity. Second, to the been tested for new sam- channel depth. adjacent ple very Riverbeds set is deep- Many to the old. samples pre- er dredge cuts degrade will bedload is date 40-foot depth. Only channel 40 down slope deflected the cut and into samples, just sites, taken from were toxicity 8. The of the they Columbia River is much believe is company’s obligation in the government news. The recently pay federal pollution for its of the Columbia. Pollu agreement reached a limited Study a Canadian tion Ordered: Teck Comineo Pact Tar Comineo, mining company, Columbia, Steele, Teck gets Fouling is be Karen Dorn responsible lieved to be century's (June 2006). for a Spokesman worth Review In pollution fact, stretch just this court held that a seek law-suit between the Canadian ing border and the Grand to hold Teck Comineo liable under the Although agreement Coulee Dam. Comprehensive re Response, Environmental quires Teck Compensation, Comineo to a (CERCLA) fund short-term Liability Act study because, of human health and the proceed environment could although Teck Comin Roosevelt, of Lake tribal stakeholders and eo is Canadian company, it released hazard State Washington expressing are reserva ous substances into the United States. Pakoo agreement Metals, Ltd., tions and concern that will v. tas Teck Cominco (9th away Cir.2006). allow Teck Comineo to walk from what assertion, majority’s of these to the NWEA does than and none taken later present “cogent challenge” to the old areas.9 side-slope are from model, model, the WES a challenge sup- low levels. perilously runs are Salmon by ported the record. NOAA Fisheries salmon need is thing that another The last warned the not to use its older climb, speak. so ladder salinity imprecision because of the model analyze toxicity in the failure thoroughly salinity of measurements the shal- renders its NEPA side-slope sediment areas that are low favored salmonids: incomplete agency has not analysis —the The WES model used to evaluate associated considered all “relevant factors” change salinity vali- intrusion was not impacts with the direct and indirect designed to dated nor assess toxicity. on river shallow, side channel habitat used words, an salmon. other Salinity B. pre- of whether the would needed model *34 dict current to determine conditions points Army to the Appellant also ability predict of its credibility future analysis impacts Corps’ inadequate the not conditions. WES was asked to con- salinity of channel on the of the assessment, duct such an and com- Salinity estuary. has a Columbia River mented that —if such validation were impact estuary’s on the health. tremendous model would needed —a new have be river, the Like toxins in the salini- levels of developed. ty estuary impor- of the is matter vital meeting from
IV. CONCLUSION
Fundamentally, majority' takes an
ostrich’s approach head-in-the-sand to re-
viewing the agency’s analysis, settling explanation without undertak-
ing required review of its decision making. true, It is permitted we are not CLARK; Jerry Clark, Linda L. V. judgment substitute our for the rea- Plaintiffs-Appellants, Neither, soned decision of agency. however, are we permitted to rubber- v. stamp agency’s decision of what fac- CAPITAL CREDIT & COLLECTION tors must be considered and what factors SERVICES, INC., Oregon corpora need not be considered an without taking tion; detailed look at whether the agency’s Brumley; Jeffrey rea- Janine I. Has Here, soning is sound. it not. son, Defendants-Appellees.
The “hard awry. look” here went Clark; Jerry Clark, Linda L. V. must, Corps, as it acknowledged profound Plaintiffs-Appellees, consequences from erosion if large quanti- ties of sand are removed from the littoral v. system. Anyone familiar with the Wash- ington coastline has seen the devastation Capital Credit Services, & Collection past (consequences erosion Inc., Oregon corporation; Janine admits were caused own past bad Brumley, Defendants-Appellants, practices). acknowledges that designated has a deep-water disposal huge site hold quantities dredge
spoils, but no plan mitigation if Jeffrey Hasson, I. Defendant. notes Project lumbia River conflict, and the channel- whether there potential con- other, majority 5. The calls use of this term "misno- it tells us that "intended” use of the Maj. Op. mer.” majority's at 1136. site lead will to “adverse” effects. Which is breezy Corps' dismissal of the Corps' inconsistency use of ambigu- "intend- it? and the epitomizes problems ed” ity plans majori- with the of its are the heart of what trou- ty's analysis: case, one hand deeply tells bles some about this us deepwater that extensive use dispos- majority's ready dismissal of those inconsis- scenario; al site is a "worst-case” on the tencies is inconsistent with NEPA.
Notes
Notes NOAA Fisheries juvenile tance to the salmon which must “Clarify Issues Columbia River Science for readjust estuary in the before rest (Oct. 6, Deepening Project,” Channel water to salt wa- transitioning fresh 2000). in rec- the ocean. The administrative ter admonition, Heeding Corps this the de- deepening the ord documents that Colum- veloped a for measuring new model salini- past century bia River channel over ty, Oregon Health and Sciences Uni- changes and other to the structure of the versity/Oregon Graduate Institute “likely largest river have caused the (OHSH/OGI) argues model. NWEA density in changes salinity intrusion and development rushed of this new estuary. stratification” in the Salmon at it to evaluate salinity only model and used Estuary in River’s End: The Role of accuracy of the older model. Further- Recovery of Columbia the Decline and more, Corps appears employed to have Salmon, Technical Memoran- NMFS hastily, salinity model too before the new (2001). dum at 99 accuracy verified. The devel- its had been accuracy Army At issue is the expressed of the model concern opers measuring impacts of Corps’ models for un- given about-reliance on its results However, certainty surrounding them.10 salinity. Contrary on channel Uncertainty accuracy and ade- Following side-slope sedi- 10. as to its assertion that tested, holds, by majority compounded quacy ment need not be is model alternative, Corp has fact in the change the Pacific of climate on side-slope this tested sediments. It bases now- Ocean and Columbia River—how will holding pathetic sample on a size-—two sam- rising impact salinity certain of sea level navigation ples channel. To from outside We Columbia River? the estuarine lower samples navi- hold that two from outside the not consid- don't know because the has channel, planned gation dredging when is significant ered this factor. one miles of the Colum- more than hundred bia, NEPA standards on the satisfies borders absurd. on findings relied based on site is purpose. used for its intended Nor highly uncertain con- new model to does the Corps analyze when and how salinity clude that would increase likely only much erosion is occur— by ppt per shallows less than .5 (parts profound devastating. will be Its thousand) and that this would have no analysis of toxicity increased re- impact. sult from dredging completely is inade- relied, apparently district court not quate, analysis its of possible changes record, on evidence upon within the but Last, least, in salinity. certainly but own search Google about the salini- highly suspect. economic ty model. upon relied model My bottom line is that admittedly fraught with uncertainty to substantially my more work to do. Hence reach its conclusion that the deep- ening dissent. produce would no adverse the salmonids from salinity the estuar- suggest ies. I employing studies older, inadequate model followed com- plete reliance on an untested model does required not constitute the “hard look” NEPA.