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Northwest Environmental Advocates v. U.S. Department of Commerce

United States District Court, W.D. Washington, Seattle

September 19, 2017

U.S. DEPARTMENT OF COMMERCE, et al., Defendants.



         This matter comes before the Court on Defendants' motion to dismiss (Dkt. No. 21). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part Defendants' motion to dismiss for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Northwest Environmental Advocates (“NWEA”) asserts that the U.S. Environmental Protection Agency (“EPA”) and the National Oceanic and Atmospheric Administration (“NOAA”), in working with the State of Washington, failed to meet their obligations under the Clean Water Act (“CWA”), the Coastal Zone Management Act (“CZMA”), and the Endangered Species Act (“ESA”) to protect Washington's coastal waters and the creatures that live in its waters from nonpoint source pollution. (Dkt. No. 18 at 1-2.) NWEA requests this Court order the agencies to do so. (Id. at 32-33.)

         CWA addresses sources of pollution in the waters of the United States through a model of shared responsibility. Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). Within this scheme, CWA Section 319 addresses nonpoint sources (e.g. runoff). It requires states to develop and implement a Nonpoint Management Program (“CWA Nonpoint Program”). 33 U.S.C. § 1329. Under Section 319, EPA's role is limited to approving each state's Nonpoint Program, assessing whether a state is making satisfactory progress towards the Program's implementation schedule, and making grants (“CWA Assistance Grants”) to partially fund the Program. Id.

         The Coastal Zone Reauthorization Amendments of 1990 (“CZARA”), 16 U.S.C. § 1455b represent a portion of CZMA. CZARA provides a separate, but distinct Coastline Nonpoint Pollution Management Program (“Coastal Nonpoint Program”) to CWA's Nonpoint Program. Its focus is on coastal areas. Any state with a Coastal Zone Management Program must include a Coastal Nonpoint Program. 16 U.S.C. § 1455b(a)(1). A state's Coastal Nonpoint Program must be approved both by EPA and NOAA, the latter of which does so on behalf of the U.S. Department of Commerce. (Dkt. No. 18 at 6.) Like CWA Section 319's Nonpoint Program, once a state submits an approvable Coastal Nonpoint Program, the state is eligible to receive federal grants under CZMA (“Coastal Assistance Grants”) to assist it in its implementation. 16 U.S.C. § 1455b(h)(2)(B).

         The Administrative Procedure Act (“APA”) allows persons to sue a government agency if harmed by the agency's failure to comply with its statutory mandate. Sackett v. E.P.A., 566 U.S. 120, 125 (2012). The APA only applies to the extent a remedy would not otherwise exist for the impacted person. 5 U.S.C. § 704. Suit can be brought under the APA against agencies who “unlawfully with[o]ld or unreasonably delay[]” actions required by law, or take actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(1), (2)(A). Neither CWA Section 319 nor CZARA provide a cause of action for violations of the Acts. Therefore, such claims must be brought under the APA.

         The ESA, on the other hand, contains its own cause of action. 16 U.S.C. § 1540(g). This provision provides a direct cause of action for any violation of the Act. Id. The ESA was established to protect and conserve species threatened with extinction. Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 651, (2007). Section 7 requires federal agencies taking discretionary action that may jeopardize the existence of listed species or adversely affect critical habitat of such species to consult with the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) before taking action. 16 U.S.C. § 1536(a)(2); Nat. Res. Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998). Generally, action may only be taken if FWS and NMFS determine that it will not jeopardize the existence of such species or its critical habitat. 16 U.S.C. § 1536(b)(4).

         NWEA asserts its members have been harmed by EPA and NOAA's inaction and the agencies' unlawful actions. First, the agencies failed to make a final CZARA approval decision on Washington's Coastal Nonpoint Program (Claim #1). (Dkt. No. 18 at 27-28.) Next, the agencies failed to withhold required amounts from Washington's CWA Assistance Grants and Coastal Assistance Grants (Claims #2-3). (Id. at 28-29.) In addition, the EPA acted arbitrarily and capriciously when it approved Washington's 2015 CWA Nonpoint Program update despite clear evidence that the Program did not meet relevant CWA Section 319 requirements (Claim #4). (Id. at 29-30.) EPA also acted arbitrarily and capriciously when it determined Washington made satisfactory progress towards its CWA Nonpoint Program implementation schedule and awarded resulting CWA Assistance Grants to Washington in 2015 and 2016 despite clear evidence that such progress had not been made (Claim #5). (Id. at 30-31.) Finally, the agencies failed to engage in required ESA consultation when taking such actions (Claim #6). (Id. at 31- 32.)

         NWEA seeks the following relief: (a) declarations that EPA and NOAA violated CZARA in failing to definitively rule on Washington's Coastal Nonpoint Program, violated CWA in approving Washington's CWA Nonpoint Program, and violated the ESA in failing to engage in required consultation; (b) order EPA and NOAA to make a definitive ruling on Washington's Coastal Nonpoint Program and reconsider the adequacy of Washington's 2015 CWA Nonpoint Program update based on appropriate criteria; (c) order NOAA and EPA to withhold the required amounts from CWA Assistance Grants and Coastal Assistance Grants until such time as the agencies provide definitive approval for Washington's Coastal Nonpoint Program; (d) order EPA to withhold all CWA nonpoint funding until such time as EPA has determined, using appropriate criteria, that Washington has made satisfactory progress in implementing its CWA Nonpoint Program; and (e) order EPA and NOAA to engage in required consultation before taking further actions. (Id. at 27-33.)

         Defendants move to dismiss all claims pursuant to Rule 12(b)(1). (Dkt. No. 21 at 3.) Should that challenge fail, Defendants move pursuant to Rule 12(b)(6) to dismiss all but two of NWEA's four ESA claims. (Id. at 31.)


         A. This Court Has Subject Matter Jurisdiction

         Federal courts must dismiss a complaint lacking subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The burden of establishing subject matter jurisdiction falls on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). If a moving party factually attacks a district court's subject matter jurisdiction, the nonmoving party must put forward such “evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Otherwise, “[t]he district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor” and then determining whether they are legally sufficient to invoke jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (party seeking relief need plead sufficient facts to allow the court to draw a reasonable inference that defendant is liable for alleged misconduct). Defendants claim to be making a factual challenge to NWEA's standing, but present no evidence to support such a challenge. (Dkt. No. 21 at 14.); see St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (facial challenge requires evidence demonstrating that subject matter jurisdiction is lacking). Therefore, the court will assess NWEA's standing on the basis of its legal sufficiency.

         NWEA must sufficiently plead, through plausible facts, that (1) it has suffered a particularized and concrete injury, (2) that is fairly traceable to the challenged conduct, (3) which is likely to be redressed by a favorable decision of this Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In addition, NWEA, as an association, must demonstrate that (1) its members would otherwise have standing to bring suit individually, (2) the interests at stake are germane to the organization's purpose, and (3) neither the claim nor the relief requested requires the participation of individual members to the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).

         NWEA describes itself as a non-profit organization that works to “protect and restore water quality and fish habitat in the Northwest.” (Dkt. No. 18 at 3.) It claims that its members “reside near, visit, use, and/or enjoy rivers, streams, and other surface waters in Washington State, including Washington's coastal areas.” (Id. at 3.) NWEA further claims that its members have a “specific interest in the full and proper implementation of the laws passed to control water pollution and protect wildlife” and have “interests in complete implementation of environmental laws.” (Id. at 5-6).

         NWEA correspondingly alleges that its members have been injured as a result of Defendants' failure to take required actions and in arbitrarily and capriciously taking other actions required by CZARA, CWA, and ESA. Specifically, NWEA claims Defendants have failed to provide Washington the incentive mandated through CZARA and CWA to reduce Washington's sources of nonpoint pollution by withholding portions of Program Assistance Grants as required by law. (Id. at 4.) NWEA further alleges that Defendants failed to engage in required consultation under the ESA. (Id. at 5.) NWEA claims that, as a result of Defendant's failures, its members have suffered ...

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