United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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
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
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.)
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.)
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).
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. Amazon.com 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)).
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
reconsiderin 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).
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. 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