Coalition Protect Puget Sound v. Taylor Shellfish Company, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE COALITION TO PROTECT PUGET No. 20-35546
SOUND HABITAT, a non-profit
corporation, D.C. No. 2:16-cv-00950-RSL
Plaintiff-Appellee,
MEMORANDUM*
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the United
States of America; et al.,
Defendants,
and
TAYLOR SHELLFISH COMPANY, INC.,
Intervenor-Defendant-
Appellant.
CENTER FOR FOOD SAFETY, a non- No. 20-35547
profit corporation,
D.C. No. 2:17-cv-01209-RSL
Plaintiff-Appellee,
v.
UNITED STATES ARMY CORPS OF
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ENGINEERS, an agency of the United
States of America; et al.,
Defendants,
NISBET OYSTER CO., INC.,
Intervenor-Defendant,
and
PACIFIC COAST SHELLFISH GROWERS
ASSOCIATION,
Intervenor-Defendant-
Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted February 2, 2021
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
Intervenors Taylor Shellfish Company and Pacific Coast Shellfish Growers
Association timely appeal (a) the summary judgment in favor of Plaintiffs
Coalition to Protect Puget Sound Habitat and Center for Food Safety, following the
district court’s holding that the United States Army Corps of Engineers violated
the Clean Water Act and the National Environmental Policy Act ("NEPA") in
issuing the 2017 version of nationwide permit ("NWP") 48; and (b) the district
2
court’s order remedying the legal errors by vacating the permit and the associated
verifications and by staying the vacatur in some respects. We affirm.
1. We have appellate jurisdiction under 28 U.S.C. § 1291, even though only
Intervenors, and not the agency, have appealed. The district court’s order finally
resolved all claims and did not require the agency to take any action at all. The
order therefore was not a "remand order" in the sense described by Alsea Valley
Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004), and Pit River
Tribe v. U.S. Forest Service, 615 F.3d 1069 (9th Cir. 2010). See generally Sierra
Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011) ("The requirement
of finality is to be given a practical rather than a technical construction." (alteration
and internal quotation marks omitted) (quoting Gillespie v. U.S. Steel Corp., 379
U.S. 148, 152 (1964))).
2. The appeal is not moot. Although the Corps provisionally issued a 2021
version of NWP 48, Reissuance and Modification of Nationwide Permits, 86 Fed.
Reg. 2744 (Jan. 13, 2021), that permit has not taken effect and, even if it goes into
effect on schedule in mid-March, will not necessarily grant Intervenors full relief.
3. The district court correctly held that the agency abused its discretion, 5
U.S.C. § 706(2), by failing to explain adequately its conclusions that the 2017
version of NWP 48 will have "no significant impact" pursuant to NEPA, and "will
have only minimal cumulative adverse effect on the environment," 33 U.S.C.
3
§ 1344(e)(1). See Bair v. Cal. Dep’t of Transp., 982 F.3d 569, 577 (9th Cir. 2020)
(describing NEPA’s requirements). The Corps expressly acknowledged the
negative effects on the environment from aquaculture activities but did not explain
adequately why those effects were insignificant or minimal.
Several of the Corps’ reasons were illogical. For example, the Corps
explained that many other sources caused even greater harm to the aquatic
environment than aquaculture, which is a reason that suggests there is a cumulative
impact. See 40 C.F.R. § 1508.7 (2017) (defining cumulative impact as "the impact
on the environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions regardless of
what agency . . . undertakes such other actions." (emphasis added)). Similarly, the
Corps responded to a concern about pesticides with the irrelevant explanation that
the Corps does not regulate pesticides.
The Corps’ citation to a limited scientific study of the effects of one type of
shellfish on one natural resource, where the study did not consider a wide range of
environmental stressors, does not suffice—without further explanation—to justify
the Corps’ much broader determination that at least five types of shellfish will have
insignificant and minimal effects on the full aquatic environment. We also reject
Intervenors’ argument that certain programmatic documents (which were issued
for a different purpose and which applied different legal standards) supply the
4
missing explanation. In issuing its national decision, which was the only document
to make a finding under NEPA, the Corps indisputably did not cite or otherwise
mention those documents. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("We may not supply a reasoned basis for
the agency’s action that the agency itself has not given." (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947))). Finally, Intervenors’ lawyer conceded, during
oral argument, that an agency may not rely exclusively on a tiered review to justify
its nationwide environmental assessments. Accord Sierra Club, Inc. v. Bostick,
787 F.3d 1043 (10th Cir. 2015); Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d
402 (6th Cir. 2013); Ohio Valley Env’t Coal. v. Bulen, 429 F.3d 493 (4th Cir.
2005).
4. The district court did not abuse its discretion in crafting an equitable
remedy. See, e.g., Teutscher v. Woodson, 835 F.3d 936, 942 (9th Cir. 2016)
(holding that we review for abuse of discretion an equitable remedy). Full vacatur
is the ordinary remedy when a rule violates the Administrative Procedure Act, and
courts deviate "only when equity demands." Pollinator Stewardship Council v.
U.S. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (internal quotation marks omitted).
Here, the court ordered briefing from the parties on the appropriate remedy and
carefully crafted a hybrid remedy that reasonably balanced the competing risks of
environmental and economic harms. The court allowed many aquaculture
5
activities to continue while applicants seek an individualized permit from the
Corps, and the court permissibly accepted the good-faith compromise reached by
some parties.
Before the district court and before us, Intervenors have not sought a
nuanced adjustment to the court’s arrangement. Instead, Intervenors assert that
anything short of a vacatur only with respect to new applicants, allowing nearly
900 aquaculturists to continue their operations in full without any further review by
the Corps, constituted an abuse of discretion. Particularly because vacatur is the
presumptive remedy, and because aquaculturists may seek individualized permits,
we are unpersuaded that the district court’s discretion was so constrained.
AFFIRMED.
6