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

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

July 12, 2018

U.S. DEPARTMENT OF COMMERCE, et al., Defendants, WASHINGTON STATE, Defendant-Intervenor.



         This matter comes before the Court on Plaintiff's motion for partial summary judgment (Dkt. No. 93-1) and Defendants' cross-motion for partial summary judgment (Dkt. No. 108). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Plaintiff's motion and GRANTS Defendants' cross-motion for the reasons explained herein.

         I. BACKGROUND

         The Court previously articulated background information and summarized the associated statutory schemes at issue in this case and will not repeat that information here. (See Dkt. Nos. 39, 56, 58, 79, 84.) Plaintiff and Defendants have filed cross-motions for partial summary judgment (Dkt. Nos. 93-1, 108) solely as to Claims #2 and #3 from Plaintiff's Second Amended and Supplemental Complaint (Dkt. No. 74 at 28-29) consistent with a stipulated briefing schedule (Dkt. Nos. 87, 103). Plaintiff brings these claim pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., seeking judicial review of agency actions.

         Plaintiff alleges that the U.S. Environmental Protection Agency (“EPA”) and the National Oceanic and Atmospheric Administration (“NOAA”) failed to withhold required amounts from annual grants the agencies make to Washington to reduce and manage Washington's nonpoint sources of water pollution. (Id. at 28-29.) The grants are made pursuant to Section 319 of the Clean Water Act (“CWA”), 33 U.S.C. § 1329(h)(1), and Section 306 of the Coastal Zone Management Act (“CZMA”), 16 U.S.C. § 1455(a). NOAA and EPA are required to withhold certain amounts from those grants if Washington fails to “submit an approvable [Section 306] program.” 16 U.S.C. § 1455b(c)(3). It is undisputed that NOAA has yet to finally approve Washington's Section 306 program. (See generally Dkt. No. 108.)

         Plaintiff asserts that because Washington has not submitted an approvable Section 306 program, NOAA and EPA have failed to meet their statutory obligations to withhold amounts from Washington's CWA Section 319 and CZMA Section 306 grants for years beginning no later than 2002 and potentially as early as 1996. (Dkt. No. 93-1 at 17-31.) Plaintiff asks the Court to set aside prior grants and compel Defendants to withhold required amounts from future grants until Washington submits an approvable program. (Id. at 31.) Defendants contend that Plaintiff lacks standing to assert Claims #2 and #3, that these claims are barred by the statute of limitations, that APA review does not apply to the type of agency action at issue in Claims #2 and #3, and that even if APA review does apply, the agencies have not unreasonably delayed withholding grant funds. (Dkt. No. 108 at 12-27.)


         A. Legal Standard

         The APA provides for judicial review of agency actions for any person “adversely affected or aggrieved” by a “final agency action for which there is no other adequate remedy in a court.” 5. U.S.C. §§ 702, 704. Where questions before the Court are purely legal, the Court can resolve an APA challenge on a motion for summary judgment. See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). The Court's role is to determine whether, as a matter of law, evidence in the administrative record supports the agency's decision. Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985).

         B. Standing

         As a threshold matter, the Court must ensure it has subject matter jurisdiction, a key component of which is Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). “Constitutional standing concerns whether the plaintiff's personal stake in the lawsuit is sufficient to make out a concrete ‘case' or ‘controversy' to which the federal judicial power may extend under Article III, § 2.” Pershing Park Villas Homeowners Ass'n v. United P. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). The burden falls on the party asserting standing. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). At the summary judgment stage, a plaintiff cannot rest on “mere allegations [of standing], but must set forth by affidavit or other evidence specific facts” to support it. Gerlinger v. Inc., Borders Group, Inc., 526 F.3d 1253, 1255-56 (9th Cir. 2008). “A plaintiff's basis for standing ‘must affirmatively appear in the record.'” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1228 n.5 (9th Cir. 2008) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).

         Defendants previously moved to dismiss on the basis that Plaintiff lacks Article III standing. (Dkt. No. 21 at 36.) The Court denied the motion after finding that Plaintiff adequately pled sufficient facts that, if proven, demonstrate standing. (Dkt. No. 39 at 6-8.) Defendants reassert their standing argument here (see Dkt. No. 108 at 12), which the Court will reconsider[1]in light of “the manner and degree of evidence required at th[is] successive stage[] of the litigation.” Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013).

         Generally, to establish Article III standing, Plaintiff must present sufficient evidence to demonstrate the following: (1) a particularized and concrete injury, (2) that is fairly traceable to the challenged conduct, (3) that is likely to be redressed by a favorable decision. Lujan, 504 U.S. at 560-61.[2] However, this evidentiary burden is reduced for plaintiffs alleging a procedural injury. Such plaintiffs “‘must show only that they have a procedural right that, if exercised, could protect their concrete interests.'” Salmon Spawning, 545 F.3d at 1226 (emphasis in original) (quoting Defenders of Wildlife v. U.S. E.P.A., 420 F.3d 946, 957 (9th Cir. 2005)); see also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (a person “who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.”).

         1. Proc ...

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