Critics of Corps' Dredging Plan Continue Fightby Bill Rudolph
NW Fishletter, May 23, 2015
Environmental groups and the Nez Perce Tribe continued their fight to keep the U.S. Army Corps of Engineers from dredging the lower Snake River earlier this month, when they filed a motion for summary judgment in the U.S. District Court for the Western District of Washington. They say the federal agency failed to consider a reasonable range of alternatives to dredging in its EIS.
"As demonstrated by its first 'immediate need' action in 2015, the Corps has locked in dredging as the only solution for addressing an 'immediate need' without considering a full range of alternatives anywhere," said their May 14 filing. "By excluding any site-specific analysis of these alternatives in 2015 and into the future, the Corps is playing a shell game that ends with the revelation that there is no pea. The Court should reject the agency's attempt to game the [National Environmental Policy Act] process."
Earlier this year, the groups failed to convince federal judge James Robart that the winter dredging should be stopped. He said the groups' argument that dredging would cause the "possibility" of irreparable harm, mainly to lamprey, did not meet the legal standard. Plaintiffs must prove the likelihood of irreparable harm, rather than simply the possibility of it.
In earlier litigation with a different judge, environmental groups had used the "possibility" argument to successfully block the Corps' dredging plans in 2002 and 2004, which led to a settlement agreement that allowed the Corps to dredge in the lower Snake River during the winter of 2005-2006 and develop a long-term sediment management plan by 2009. But the Corps didn't finish its plan and record of decision until late 2014. No dredging had occurred over the past eight years, until the January operation.
In their latest motion, the plaintiffs also argued that the Corps' EIS didn't take a hard look at the effects of climate change, produced a "misleading and inadequate" economics picture, and didn't include a public interest analysis.
The plaintiffs also said they expect the Corps or defendant-intervenors may argue the case is moot because the federal agency has completed its "immediate need" dredging already this year. Since the Corps' sediment plan includes an "indefinite framework" for maintaining the navigation channel, they say the program, "will, by definition, be used repeatedly and regularly to justify the Corps' actions for years to come." Plaintiffs argue that when these actions are repeated in a way that may evade review, courts will not dismiss claims as moot.
Federal defendants and intervenors must file their combined oppositions and cross-motions by June 25.
Plaintiffs include the Friends of the Clearwater, Idaho Rivers United, Institute for Fisheries Resources, Nez Perce Tribe, Pacific Coast Federation of Fishermen's Associations, Sierra Club, and Washington Wildlife Federation.
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