United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' AND
INTERVENOR-DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY
JUDGMENT ON BNSF FOREIGN AFFAIRS DOCTRINE CLAIM
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Intervenor-Defendants
Washington Environmental Council, Climate Solutions, Friends
of the Columbia Gorge, Sierra Club and Columbia
Riverkeeper's (collectively “WEC”) Motion for
Partial Summary Judgment on BNSF Railway Company's
(“BNSF”) Foreign Affairs Doctrine Claim (Dkt.
206), Defendants Jay Inslee and Maia Bellon's
(collectively the “State”) Motion for Summary
Judgment on BNSF's Foreign Affairs Doctrine Claim (Dkt.
208) and Intervenor-Plaintiff BNSF's Motion for Summary
Judgment on the Foreign Affairs Doctrine Claims (Dkt. 214).
The Court has considered pleadings filed regarding the
motions, including briefs of amici curiae, oral argument
heard on 26 March 2019, and the remainder of the file herein.
case originally challenged the State's denial of a Clean
Water Act Section 401 Certification (“water quality
certificate”) and a denial of request for approval of a
sublease of state-owned aquatic lands for Plaintiffs
Lighthouse Resources, Inc., Lighthouse Products, LLC, LHR
Infrastructure, LLC, LHR Coal LLC, and Millennium Bulk
Terminals-Longview, LLC's (collectively
“Lighthouse”) proposed coal export terminal. Dkt.
relevant to the pending motions, Intervenor-Plaintiff BNSF,
who plans to provide rail service to the proposed terminal,
maintain that the State's denial of the water quality
certificate is preempted by the foreign affairs doctrine.
Lighthouse and BNSF make other claims in their Complaints
that have either been dismissed or are not the subject of
State and WEC move for summary dismissal of the foreign
affairs doctrine claim (Dkts. 206 and 208), BNSF opposes the
motions and files a cross motion for summary judgment on its
foreign affairs doctrine claim (Dkts. 214). For the reasons
provided below, the State and WEC's motion for summary
judgment dismissal of BNSF's foreign affairs doctrine
claim should be granted, BNSF's cross motion denied, and
the foreign affairs doctrine claim dismissed.
order to meet Asian coal demands, Lighthouse, a coal supply
chain company, proposes building a new coal export facility
at the existing Millennium Bulk Terminal in Longview,
Washington on and in the Columbia River. Dkt. 1. At full
build out, the proposed terminal would be capable of
exporting 44 million metric tons of coal a year, and would
include three large docks. Id. The coal would come
primarily from the Powder River Basin, in Montana and
Wyoming, and the Uinta Basin, in Utah and Colorado.
Id. Lighthouse owns and leases the coal mining
rights, operates coal mines, and maintains coal loading
infrastructure. Id. BNSF would provide rail
transport for the coal. Id. The proposed terminal
would be operated by Lighthouse. Id. After
Lighthouse unloads and stockpiles the coal, it would
eventually be loaded onto ocean going vessels at the proposed
terminal's docks and shipped to Asia. Id.
began the permitting process for the proposed terminal in
2012. Id. As is relevant to the motions here, on
July 18, 2016, Lighthouse submitted an application to the
State for a Section 401 water quality certification, which is
required under the Clean Water Act, 33 U.S.C. §1341.
Id. A Final Environmental Impact Statement
(“FEIS”) was issued on April 28, 2017. The EIS
identified nine environmental resource areas that would
suffer unavoidable and significant adverse environmental
impacts from the construction and operation of the proposed
terminal. Dkt. 130-1. Those identified areas were: social and
community resources, cultural resources, tribal resources,
rail transportation, rail safety, vehicle transportation,
vessel transportation, noise and vibration, and air quality.
Dkt. 130-1, at 43-45. The FEIS was not appealed.
September 26, 2017, the State denied Lighthouse's
application for a water quality certificate on two grounds.
Dkt. 1-1. The first was that the proposed terminal's
“significant unavoidable adverse impacts”
identified in the FEIS conflicted with the Washington State
Environmental Policy Act (“SEPA”) policies in WAC
173-802-110. Dkt. 1-1, at 4-14. The second basis for the
denial was that the State did not have reasonable assurance
that the proposed terminal would meet applicable water
quality standards. Dkt. 1-1, at 14-19. Lighthouse appealed
the State's denial to Washington's Pollution Control
Hearings Board. Dkt. 130-6. On August 15, 2018, the
State's decision to deny Lighthouse's water quality
certificate was affirmed by that board. Id. On
September 6, 2018, Lighthouse appealed the Pollution Control
Hearings Board's decision to the Cowlitz County Superior
Court, where it is now pending. Washington State Dept. of
Ecology v. Millennium Bulk Terminals-Longview, LLC,
Cowlitz County, Washington Superior Court case number
STANDARD ON MOTION FOR SUMMARY JUDGMENT
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56 (c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)(nonmoving party must present specific, significant
probative evidence, not simply “some metaphysical
doubt.”). See also Fed. R. Civ. P. 56 (d).
Conversely, a genuine dispute over a material fact exists if
there is sufficient evidence supporting the claimed factual
dispute, requiring a judge or jury to resolve the differing
versions of the truth. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service
Inc. v. Pacific Electrical Contractors Association, 809
F.2d 626, 630 (9th Cir. 1987).
determination of the existence of a material fact is often a
close question. The court must consider the substantive
evidentiary burden that the nonmoving party must meet at
trial - e.g., a preponderance of the evidence in most civil
cases. Anderson, 477 U.S. at 254, T.W. Elect.
Service Inc., 809 F.2d at 630. The court must resolve
any factual issues of controversy in favor of the nonmoving
party only when the facts specifically attested by that party
contradict facts specifically attested by the moving party.
The nonmoving party may not merely state that it will
discredit the moving party's evidence at trial, in the
hopes that evidence can be developed at trial to support the
claim. T.W. Elect. Service Inc., 809 F.2d at 630
(relying on Anderson, supra). Conclusory,
non-specific statements in affidavits are not sufficient, and
“missing facts” will not be
“presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990).