United States District Court, D. Oregon
CENTRAL OREGON LANDWATCH, an Oregon non-profit corporation, et. al. Plaintiffs,
KENT CONNAUGHTON, in his official capacity as Regional Forester of the Deschutes National Forest, JOHN ALLEN, in his official capacity as Forest Supervisor of the Deschutes National Forest, and the UNITED STATES FOREST SERVICE, a federal agency, Defendants,
THE CITY OF BEND, Defendant-Intervenor.
Ralph Bloemers, Christopher Winter, Crag Law Center, Portland, Oregon, Attorneys for plaintiffs.
S. Amanda Marshall, United States Attorney, Stephen J. Odell, Assistant United States Attorney, Portland, Oregon, Attorneys for defendant.
Teresa Jacobs, Albert Ferlo, (pro hac vice), Perkins Coie LLP, Washington, DC, Attorneys for defendant-intervenor.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Plaintiffs Central Oregon Landwatch and Waterwatch of Oregon move for summary judgment pursuant to Fed.R.Civ.P. 56. Defendant United States Forest Service("Forest Service") and defendant-intervenor City of Bend ("City") each filed cross-motions for summary judgment. The Court held oral argument on October 30, 2014. For the reasons set forth below, the plaintiffs' motion is denied and the defendants' motions are granted.
This dispute surrounds Tumalo Creek (the "Creek"), a tributary of the Deschutes River that runs through the City. Specifically, plaintiffs challenge the Forest Service's decision to issue a special use permit (SUP) allowing the City to construct a new water supply pipeline allowing continued diversion of water from the Creek. The Bridge Creek Water Supply Project (the "Project"), would allow the City to install an approximately 10-mile long, single replacement pipe under an existing road. Administrative Record ("AR") 50372. The City sought to replace its existing water supply system because the two deteriorating pipelines "are in poor condition and [1 at risk of failure." Id.
On September 18, 2012, the Forest Service initially approved the issuance of a SUP allowing the City to construct the pipeline, however the project was enjoined by Cent. Or. Landwatch v. Connaughton (Landwatch I), 905 F.Supp.2d 1192 (D. Or. 2012). The Forest Service and City then produced a second Environmental Assessment (the "2013 EA") that included a temporary limit on the amount of water diversion, which the City alleges is equivalent to its current level of diversion. The more than two-hundred page 2013 EA addresses the environmental impacts of the Project in detail, including its effect on the Creek's streamflow and temperature. To assess the Project's impacts, the Forest Service divided the Creek into three separate "reaches." Reach A consisted of 13.2 miles between the confluence of the Tumalo and Bridge Creeks and the point where the Tumalo Irrigation District ("TID") withdraws water for its system. AR 50460. The impact of the City's water withdrawal occurs in Reach A. AR 50462. Reach B covers the portion of the Creek from the TID diversion point to the mouth of the Tumalo Creek. AR 50460. Lastly, Reach C extends from the mouth of Tumalo Creek into the Deschutes River. Id.
Based on their findings, the Forest Service approved the City's renewed request for a SUP. Plaintiffs challenged this decision via administrative protest and filed several objections to the agency's decision. AR 50753. In October 2013, the Forest Service responded to plaintiffs' protests and affirmed its decision to proceed with the Project. AR 50753-55. After exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that the 2013 EA and the Forest Service's decision to issue a SUP violates the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), the Clean Water Act ("CWA"), and the Federal Land Policy Management Act ("FLPMA").
A federal agency's compliance with environmental laws is reviewed under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706. In an APA case, summary judgment is awarded in favor of the plaintiff if, after reviewing the administrative record, the court determines that the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)). A decision is not arbitrary or capricious if the federal agency articulated a rational connection between the facts found and the choice made. Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir. 2004); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (courts examine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment").
Review under this standard is narrow and the court may not substitute its judgment for that of the agency. Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1988). Nevertheless, while this standard is deferential, the court must "engage in a substantial inquiry, ... a thorough, probing, in-depth review." Native Ecosys. Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005) (citation and internal quotations omitted).
I. NEPA Claims
Plaintiffs argue that the Forest Service violated NEPA by failing to: (1) take a "hard look" at the Project's effects on the Creek; (2) conduct an adequate alternatives analysis; (3) use adequate baseline data; and (4) prepare an environmental impact statement (EIS). For the reasons set forth below, the Court finds that the Forest Service's NEPA analysis was not arbitrary or capricious.
NEPA is "a procedural statute that does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions." Sierra Club v. Bosworth ("Sierra Club I"), 510 F.3d 1016, 1018 (9th Cir. 2007) (citation and internal quotations omitted). To accomplish a "hard look, " NEPA requires all agencies to prepare an EIS for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
The agency first prepares an environmental assessment ("EA") to determine whether an action will be significant; if the agency concludes there is no significant effect associated with the proposed action, it may issue a Finding Of No Significant Impact, "accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant, " in lieu of preparing an EIS. Sierra Club I, 510 F.3d at 1018 (citation and internal quotations omitted); 40 C.F.R. § 1508.9. ...