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Lighthouse Resources Inc. v. Inslee

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

April 1, 2019

LIGHTHOUSE RESOURCES INC., et al., Plaintiffs,
v.
JAY INSLEE, et al., Defendants, and BNSF RAILWAY COMPANY Intervenor-Plaintiff, and WASHINGTON ENVIRONMENTAL COUNCIL, et al., Intervenor-Defendants.

          ORDER ON DEFENDANTS' AND INTERVENOR-DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON BNSF FOREIGN AFFAIRS DOCTRINE CLAIM

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         This 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. 1.

         As is 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 these motions.

         The 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.

         I. FACTS

         In 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.

         Lighthouse 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.

         On 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 18-2-00994-08.

         II. DISCUSSION

         A. STANDARD ON MOTION FOR SUMMARY JUDGMENT

         Summary 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).

         The 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).

         B. FOREIGN ...


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