Friends of the River et al v. U.S. Army Corps of Engineers et al

Filing 55

ORDER signed by Judge John A. Mendez on 4/27/12 ORDERING the Court DENIES Defendants' Motion to Dismiss; Defendants shall file their Answer to Plaintiffs' First Amended Complaint within twenty (20) days of the date of this Order. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRIENDS OF THE RIVER, a non)
profit corporation, DEFENDERS OF )
WILDLIFE, a non-profit
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corporation, and CENTER FOR
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BIOLOGICAL DIVERSITY, a non)
profit corporation,
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Plaintiffs,
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v.
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UNITED STATES ARMY CORPS OF
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ENGINEERS, and MAJOR GENERAL
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MEREDITH W.B. TEMPLE, in his
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official capacity,
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Defendants.
)

Case No. 2:11-CV-01650 JAM-JFM
ORDER DENYING DEFENDANTS’
MOTON TO DISMISS

Before the Court is Defendants’ United States Army Corps of

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Engineers and Major General Meredith W.B. Temple, (collectively

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“the Corps” or “Defendants”), Motion to Dismiss (Doc. #26) the

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First Amended Complaint (“FAC,” Doc. #25) filed by Plaintiffs

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Friends of the River, Defenders of Wildlife, and the Center for

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Biological Diversity, (collectively “Plaintiffs”).

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oppose the motion (Doc. #47).1

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Plaintiffs

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for February 22, 2012.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

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Plaintiffs allege that for decades the Corps has allowed,

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encouraged, and, in some cases, required the planting of trees and

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vegetation on levees for environmental purposes, including habitat

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preservation.

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when it issued the “Final Draft White Paper: Treatment of

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Vegetation within Local Flood Damage-Reduction Systems” (“White

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Paper”) on April 20, 2007.

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calls for a vegetative-free-zone for all levees.

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Plaintiffs allege that the Corps reversed course

Plaintiffs contend the White Paper

Plaintiffs allege that Defendants changed the regulatory and

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environmental status quo when they adopted Engineer Technical

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Letter 1110-2-571 (“ETL”), allegedly replacing EM 1110-2-301, on

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April 10, 2009 and again ten months later when they produced the

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draft Environmental Assessment/Finding of No Significant Impact on

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February 9, 2010 for the “Policy Guidance Letter – Variance from

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Vegetation Standards for Levees in Floodwalls” (“PGL”).

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allege that through a Federal Register Notice (“Federal Register

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Notice”) the PGL acknowledged that the ETL Guidelines establish

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“mandatory vegetation-management standards for levees.”

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Reg. at 6364.

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Plaintiffs

75 Fed.

The ETL establishes “Guidelines for Landscape Planting and

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Vegetation Management at Levees, Floodwalls, Embankment Dams, and

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Appurtenant Structures.”

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all vegetation except grass, requires a vegetation-free zone 15

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feet to each side of a levee, and requires removal of all non-

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compliant vegetation.

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levee operators to seek a variance to retain non-compliant

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vegetation for environmental purposes.

Plaintiffs aver that the ETL prohibits

The ETL, according to Plaintiffs, requires

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Plaintiffs further allege

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that the Corps itself described the ETL standards as “mandatory” in

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the Federal Register and the Corps is currently implementing the

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ETL in California in the course of levee inspections.

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Plaintiffs allege that the PGL substantively changed the

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Corps’ policy on existing variances and has had direct, indirect,

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and cumulative impacts on the environment including impacts to

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listed species and critical habitats.

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Plaintiffs allege that on about April 2, 2010, the Sacramento
Area Flood Control Agency (“SAFCA”) and the Central Valley Flood

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Protection Board formally applied to the Corps for a variance from

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the standard vegetation guidelines set forth in the ETL as non-

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federal sponsors of the American River Watershed Canyon Features

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Project.

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approved in part and denied in part the variance request.

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Plaintiffs further allege that on about December 30, 2010, in

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rejecting a request from the California Department of Water

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Resources (“DWR”) to cease implementing the ETL, the Corps declared

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“should there be information available that warrants a revision or

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an improvement to the standards in the ETL, we will change the

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standard.

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implement the current standards in the ETL.”

Plaintiffs aver that on about June 16, 2010, the Corps

However, until that time, the Corps will continue to
FAC ¶ 39.

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Plaintiffs allege that the Defendants’ actions were final

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agency actions, major federal actions, and rulemaking that require

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compliance with the National Environmental Policy Act (“NEPA”), 42

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U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16

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U.S.C. 1531 et seq., and the Administrative Procedure Act (“APA”),

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5 U.S.C. §§ 553, 701-706.

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to comply with those statutes.

Plaintiffs contend that the Corps failed
Plaintiffs allege that the Corps
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did not prepare an Environmental Impact Statement or an

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Environmental Assessment under NEPA before issuing the White Paper,

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ETL, Federal Registrar notice, or PGL.

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that the Corps did not consult with the fish and wildlife agencies

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under the ESA.

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provide notice and comment in violation of the APA.

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Likewise, Plaintiffs allege

Finally, Plaintiffs allege that the Corps did not

Plaintiffs filed their Complaint (Doc. #1) on June 20, 2011.

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On July 27, 2011, Plaintiffs filed a Motion for Summary Judgment

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(Doc. #11).

The Court granted the Corps’ motion to stay briefing

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on the summary judgment motion until the Court decides the Corps’

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Motion to Dismiss (Doc. #23).

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filed its Answer to Plaintiffs’ Complaint (Doc. #24).

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10, 2011, Plaintiffs filed the FAC (Doc. #25) alleging three causes

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of action: (1) NEPA violations; (2) ESA violations; and (3) APA

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Violations.

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Motion to Dismiss (Doc. #26) which included two exhibits and

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several attachments.

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object to the exhibits in the Motion (Doc. #48).

On September 19, 2011, the Corps
On October

On October 21, 2011, Defendants filed the instant

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Plaintiffs oppose the Motion (Doc. #47) and

II.

STATUTORY BACKGROUND

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A.

Administrative Procedure Act

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The Administrative Procedure Act (“APA”) provides that a

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“person suffering a legal wrong because of agency action, or

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adversely affected or aggrieved by agency action within the meaning

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of a relevant statute, is entitled to judicial relief thereof.”

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U.S.C. § 702.

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reviewable by statute and final agency action for which there is no

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other adequate remedy in a court are subject to judicial review.”

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5 U.S.C. § 704.

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The APA provides that “[a]gency action made

In reviewing agency action, the court may set
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aside the action only if it is “(A) arbitrary, capricious, an abuse

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of discretion, or otherwise not in accordance with law . . .;

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(C) in excess of statutory jurisdiction, authority, or limitations,

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or short of statutory right; or (D) without observance of procedure

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required by law.”

5 U.S.C. § 706(2)(A), (C), (D).

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B.

National Environmental Policy Act

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The National Environmental Policy Act (“NEPA”) has “twin aims.

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First, it places upon [a federal] agency the obligation to consider

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every significant aspect of the environmental impact of a proposed

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action.

Second, it ensures that the agency will inform the public

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that it has indeed considered environmental concerns in its

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decisionmaking process.”

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Def. Council, Inc., 462 U.S. 87, 97 (1983) (citation and internal

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quotation marks omitted).

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environmental standards.

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procedures that require agencies to take a ‘hard look’ at

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environmental consequences.”

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(9th Cir. 2000).

Balt. Gas & Elec. Co. v. Natural Res.

NEPA does not contain substantive
Rather, it “establishes ‘action-forcing’

Metcalf v. Daley, 214 F.3d 1135, 1141

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NEPA requires federal agencies to prepare an Environmental

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Impact Statement (“EIS”) prior to taking “major Federal actions

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significantly affecting the quality” of the environment.

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§ 4332(2)(C).

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the preparation of an EIS.

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categorically require the preparation of an EIS, the agency must

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prepare an Environmental Assessment (“EA”) to determine whether the

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action will have a significant effect on the environment.

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C.F.R. § 1501.4 (Council on Environmental Quality (“CEQ”)

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regulations implementing NEPA); Metcalf, 214 F.3d at 1142.

42 U.S.C.

Some proposed federal actions categorically require
If the proposed action does not

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See 40

If the

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EA reveals that the proposed action will significantly affect the

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environment, then the agency must prepare an EIS.

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reveals no significant effect, the agency may issue a Finding of No

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Significant Impact (“FONSI”).

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Metcalf, 214 F.3d at 1142.

If the EA

See 40 C.F.R. §§ 1501.4; see also

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C.

Endangered Species Act

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The Endangered Species Act (“ESA”) established a program for

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conserving certain species listed by the Secretaries of the

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Interior and Commerce as endangered or threatened species (“listed

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species”).

16 U.S.C. §§ 1531(b), 1532(6), (20), 1533.

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agency determines that its action “may affect listed species or

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designated critical habitat[,] 50 C.F.R. § 402.14(a), it must

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pursue some form of consultation (“informal” or “formal”), with the

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U.S. Fish and Wildlife Service (“USFWS”) or the National Marine

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Fisheries Service.

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determines that a particular action will have “no effect” on a

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listed species or critical habitat, there is no consultation

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requirement.

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v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir. 1996).

50 C.F.R. §§ 402.13, 402.14.

Where an

If the agency

50 C.F.R. § 402.12; Sw. Ctr. For Biological Diversity

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III. OPINION
A.

Legal Standard
1.

Motion to Dismiss

Dismissal is appropriate under Rule 12(b)(1) when the District

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Court lacks subject matter jurisdiction over the claim. Fed. R.

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Civ. P. 12(b)(1).

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When a defendant brings a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1), the
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plaintiff has the burden of establishing subject matter

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jurisdiction.

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1102, n.1 (9th Cir. 2007) (“Once challenged, the party asserting

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subject matter jurisdiction has the burden of proving its

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existence.”).

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See Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095,

There are two permissible jurisdictional attacks under Rule

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12(b)(1): a facial attack, where the court’s inquiry is limited to

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the allegations in the complaint; or a factual attack, which

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permits the court to look beyond the complaint at affidavits or

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other evidence.

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1039 n.2 (9th Cir. 2003).

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asserts that the allegations contained in a complaint are

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insufficient on their face to invoke federal jurisdiction, whereas

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in a factual attack, the challenger disputes the truth of the

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allegations that, by themselves, would otherwise invoke federal

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jurisdiction.”

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2007) (internal citations omitted).

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Savage v. Glendale Union High Sch., 343 F.3d 1036,
“In a facial attack, the challenger

Li v. Chertoff, 482 F.Supp.2d 1172, 1175 (S.D. Cal.

If the moving party asserts a facial challenge, the court must

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assume that the factual allegations asserted in the complaint are

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true and construe those allegations in the light most favorable to

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the plaintiff.

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Inc., 328 F. 3d 1136, 1139 (9th Cir. 2003)).

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asserts a factual attack, a court may resolve the factual disputes

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by “look[ing] beyond the complaint to matters of public record,

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without having to convert the motion into one for summary judgment.

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White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

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not presume the truthfulness of the plaintiff’s allegations.”

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Id. at 1175 (citing Warren v. Fox Family Worldwide,
If the moving party

The court “need
Id.

However, “jurisdictional finding of genuinely disputed facts
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is inappropriate when the jurisdictional issue and the substantive

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issues are so intertwined that the question of jurisdiction is

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dependent on the resolution of factual issues going to the ‘merits’

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of an action.”

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(9th Cir. 2004) (internal citations and quotations omitted).

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question of jurisdiction and the merits of an action are

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intertwined where “a statute provides the basis for both the

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subject matter jurisdiction of the federal court and the

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plaintiff’s substantive claim for relief.”

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
The

Id. (internal citations

and quotations omitted).

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B.

Evidentiary Objections

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Defendants premise their Motion to Dismiss on a factual

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challenge, arguing that this Court lacks subject matter

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jurisdiction because the White Paper, ETL, and PGL, whether taken

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separately or together, do not constitute reviewable final agency

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action and are not substantive rules.

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their Motion to Dismiss on a factual challenge, they attach two

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exhibits and several attachments for the Court to consider.

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Because Defendants base

Plaintiffs object to all the exhibits.

See Doc. #48.

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Plaintiffs provide three main arguments why the Court should strike

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these exhibits: (1) the Court should not consider materials outside

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the complaint on a motion to dismiss, so the documents are not

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relevant to the instant motion; (2) the documents are not

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admissible under Federal Rule of Evidence 402 because the

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provisions of the Administrative Procedure Act (“APA”), 5 U.S.C.

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§ 706, require review of administrative decisions based on the

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whole record and Defendants’ exhibits constitute part, but not all,

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of the administrative record; (3) the Rabbon declaration is
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irrelevant to the instant motion because it is not based on

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personal knowledge and the opinions offered are without foundation

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as to any relevant expertise, in violation of Federal Rule of

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Evidence 702.

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Defendants respond that the Court should consider its exhibits

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and attachments.

See Doc. #50.

First, Defendants argue that the

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exhibits are relevant because the Corps challenges some of the

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Plaintiffs’ factual allegations, and as such, the Court can

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properly consider the documents attached to the Motion to Dismiss.

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Additionally, Defendants argue that the factual allegations are not

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so intertwined with the merits that the Court cannot resolve the

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jurisdictional issues separately.

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the administrative record is not necessary to consider the instant

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motion and that some of the documents attached to the Motion to

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Dismiss post-date the alleged agency actions at issue, and

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therefore, would likely not be part of the administrative record.

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Defendants point out that Plaintiffs initially moved for summary

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judgment on the basis of many of these same documents, arguing that

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no administrative record was necessary for the Court to decide the

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issues and asked the Court to take judicial notice of many of these

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documents.

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(asking the Court to take judicial notice of the White Paper and

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ETL among other documents); Statement of Undisputed Facts in Supp.

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of Mot. for Summ. J. & Req. for Judicial Notice (Doc. #11-2); Pls.

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Opp’n. to Defs. Mot. to Stay (Doc. #21).

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contend that the Court can properly consider the Rabbon Declaration

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because the declaration is based on his personal and official

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knowledge and information and that he provides background

Secondly, Defendants argue that

See Pls.’ Notice of Mot. for Summ. J. (Doc. #11)

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Finally, Defendants

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information and facts surrounding the Framework process.

In the

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alternative, Defendants submit that the Court can decide the Motion

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to Dismiss without considering the disputed documents; it could

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decide that Plaintiffs lack standing or that Plaintiffs’ claims are

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an impermissible programmatic challenge without considering any

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documents outside Plaintiffs’ FAC.

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that the ETL and PGL are not final agency actions and that the

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Corps was not required to comply with the APA’s formal rulemaking

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procedures by considering only the ETL and draft variance policy.

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Because Defendants assert a factual challenge to the Court’s

The Court could also decide

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subject matter jurisdiction, as discussed supra, the Court may

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“look[] beyond the Complaint to matters of public record . . . [and

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it] need not presume the truthfulness of the plaintiff’s

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allegations.”

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properly consider documents outside the complaint.

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White, 227 F.3d at 1242.

Thus, the Court may

Here, the Court finds that Defendants’ motion and exhibits are

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arguments on merits issues, such as the presence or absence of

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final agency action, whether rulemaking has occurred, and whether

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the ETL was a new substantive rule or merely a reiteration and

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clarification.

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of jurisdiction is dependent on the resolution of factual issues

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going to the merits’ of [the] action.”

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Much of the evidence upon which these merits issues could be

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decided is solely within the possession of Defendants.

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concede that the documents currently before the Court do not

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constitute the complete administrative record.

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questions, the Court must consider the entire administrative

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record.

The issues “are so intertwined[,] that the question

Safe Air, 373 F.3d at 1040.

Defendants

To resolve these

The Court cannot merely look to the face of the documents
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to determine whether they are final agency actions or whether they

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prescribe substantive rules.

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action, [the Court] should have before it neither more nor less

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information than did the agency when it made its decision.”

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Biodiversity Legal Found. v. Norton, 180 F.Supp.2d 7, 10 (D.D.C.

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2001) (internal quotation omitted).

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concede that the Court could decide the Motion to Dismiss without

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considering some or all of the documents attached.

“[T]o ensure fair review of an agency

Additionally, Defendants

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While the Court will not consider all of the documents

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attached to the Motion to Dismiss because they form an incomplete

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administrative record, the Court takes judicial notice of the ETL

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and the White Paper as background materials.

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judicial notice of facts that are “capable of accurate and ready

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determination by resort to sources whose accuracy cannot reasonably

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be questioned.”

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judicial notice for a judicially noticeable fact “if requested by a

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party and supplied with the necessary information.”

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201(c)(2).

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these documents.

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judicial notice of public records in this type of motion, the Court

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is limiting its notice of these documents to background materials

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and it will not rely on these documents to resolve any factual

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dispute.

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Cnty., 547 F.3d 943, 955 (9th Cir. 2008)(holding that district

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court judge did not abuse its discretion in taking judicial notice

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of a government study for the limited purpose of background

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material without relying on it to resolve any factual dispute).

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The Court elects to take judicial notice of these documents because

Fed. R. Evid. 201(b)(2).

The Court may take

The Court must take

Fed.R.Evid.

Additionally, both parties requested judicial notice of
While it is appropriate for the Court to take

See U.S. v. 14.02 Acres or Land More or Less in Fresno

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they are heavily relied upon by both parties and there is no

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dispute as to the accuracy of the documents.

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as to whether the documents reflect final agency actions or

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substantive rules.

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The parties disagree

As a final matter, the Court will not consider the Rabbon

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Declaration.

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knowledge and the opinions offered are without foundation as to any

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relevant expertise.

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C.

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Mr. Rabbon’s declaration is not based on personal

See Fed.R.Evid. 702.

Claims for Relief
1.

Final Agency Action

Defendants argue that Plaintiffs’ NEPA and APA claims should

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be dismissed because the Corps has not taken a final agency action

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subject to review and that the ESA claim should be dismissed for

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not identifying a discrete violation of the ESA.

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Claims under the APA require the presence of a final agency

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action.

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(1990).

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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83

As a general matter, two conditions must be satisfied
for agency action to be final: First, the action must
mark the consummation of the agency’s decisionmaking
process – it must not be of a merely tentative or
interlocutory nature. And second, the action must be
one by which rights or obligations have been
determined, or from which legal consequences will
flow.

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Fairbanks N. Star Borough v. U.S. Army Corps of Engineers, 543 F.3d

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586, 591 (9th Cir. 2008) (quoting Bennett v. Spear, 520 U.S. 154,

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177-78 (1997)).

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Defendants argue that the ETL is not a final agency action

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because instead of marking the end of the agency’s decisionmaking

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process or determining legal rights and obligations, the ETL
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provides guidelines to be considered in future decisionmaking and

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contemplates further, site-specific action.

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argue that the White Paper and PGL are not agency actions.

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Defendants explain that the Corps developed the White Paper to

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serve as a discussion paper outlining the treatment of vegetation

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within local flood-damage-reduction systems and to recommend

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further steps.

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(titled “Recommendations”), the document lists recommended actions,

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which Defendants contend are only recommendations, not final agency

Defendants further

In the final section of the White Paper, Section 7

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actions.

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“Final Draft,” and was never finalized as an official Corps

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document or agency position.

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PGL is not final agency action because it is explicitly a draft

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document, is subject to change, and even once it is finalized, the

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PGL would not be final agency action because it merely outlines the

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variance process as opposed to dictating an outcome in any

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particular case.

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the three documents do not constitute final agency action.

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Defendants further argue that the White Paper is marked

Likewise, Defendants contend that the

Finally, Defendants argue that taken together,

Plaintiffs counter that Defendants’ actions are final agency

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actions and major federal actions that require compliance with NEPA

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and the ESA.

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immediate changes on the ground, they aver in the FAC that real

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consequences and impacts flow from these actions by changing the

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status quo for existing variances and requiring a significant

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change in vegetation management on existing levees.

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to the PGL, Plaintiffs argue that they allege in the FAC that the

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PGL has the force of law and that it established an interim rule.

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Plaintiffs further argue that the Corps’ actions constitute major

Plaintiffs argue that even if the ETL did not require

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With respect

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federal action subject to NEPA and that the ETL should have been

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subjected to NEPA compliance.

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Corps’ actions were agency actions subject to the ESA and that ESA

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consultation was required prior to the ETL, interim rule, and PGL’s

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implementation.

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Similarly, Plaintiffs argue that the

Defendants analogize this case to United States v. Alameda

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Gateway LTD., 213 F.3d 1161 (9th Cir. 2000).

In Alameda Gateway,

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the Ninth Circuit found that a Corps Engineer Regulation did not

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have the force and effect of law because its text indicated that it

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merely “memorializes the general policy.”

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Circuit further found that the Engineer Regulation did not have the

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force and effect of law because it “was not published in either the

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Code of Federal Regulations [(“C.F.R.”)] or the Federal Register,

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providing further evidence that the regulation was not intended to

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be binding.”

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similar to the Engineer Regulation, indicating that the ETL is a

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general policy statement, not a substantive rule.

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“Guidelines,” states that it provides guidelines to “be used with

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reasonable judgment” and is tailored to the specifics of an

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individual project.

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not published in either the C.F.R. or the Federal Register.

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Id.

Id. at 1168.

The Ninth

Defendants argue that the ETL’s language is

The ETL, titled

Moreover, Defendants argue that the ETL was

Plaintiffs distinguish Alameda Gateway from the instant case

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by arguing that Alameda Gateway was brought by the Corps to recover

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costs associated with the removal of a pier by defendants; it was

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decided on summary judgment, not a motion to dismiss; it did not

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involved the APA, NEPA, or the ESA; and Plaintiffs are not

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challenging the vegetation standards themselves, rather Plaintiffs

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allege that the Corp adopted substantive changes in the rules for
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levee management affecting the environment and listed species and

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habitats without undertaking the required environmental review

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under NEPA and consultation under the ESA.

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The Court finds Plaintiffs’ arguments persuasive – in Alameda

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Gateway, the Ninth Circuit sua esponte raised the issue that it

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“will not review allegations of noncompliance with an agency

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statement that is not binding on the agency.”

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court found that the regulation was not binding because the

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Engineering Regulation was more of a policy statement and it was

Id. at 1167.

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not published.

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at the summary judgment stage, presumably with the aid of the

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administrative record to guide its decision.

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instant case is a procedural challenge and not a substantive

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The

challenge, further distinguishing Alameda Gateway.

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However, the Ninth Circuit made this determination

Additionally, the

Like Alameda Gateway, most environmental cases considering

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subject matter jurisdiction are decided only after reviewing the

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administrative record, generally at the summary judgment stage.

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See e.g. River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th

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Cir. 2010) (finding on a motion for summary judgment that the

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defendant’s policies do not proscribe substantive rules, and were

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not promulgated in conformance with the procedures of the APA); Or.

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Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977 (9th Cir.

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2006) (finding on a motion to dismiss, but after reviewing the full

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administrative record, that the defendant’s policies were final

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within the meaning of the APA); High Sierra Hikers Ass’n v.

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Blackwell, 390 F.3d 630 (9th Cir. 2004) (finding final agency

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action and NEPA violations on a motion for summary judgment);

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Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998)
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(finding on a motion for summary judgment that no environmental

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impact statement was necessary).

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Defendants rely on three cases, Fairbanks N. Star Borough v.

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U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008),

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Rattlesnake Coal. v. U.S. E.P.A., 509 F.3d 1095 (9th Cir. 2007),

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and Inst. For Wildlife Prot. v. Norton, 205 F.App’x 483, 485 (9th

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Cir. 2006), in support of their argument that courts routinely

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dismiss claims for lack of jurisdiction where there is not final

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agency action within the meaning of the APA. These cases are

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distinguishable from the instant case. In Fairbanks, a judgment on

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the pleadings action, the Ninth Circuit determined that there was

12

no final agency action under the APA for purposes of judicial

13

review.

14

unlike here, the court takes “all the allegations in the pleadings

15

as true.”

16

and ask the Court to consider outside evidence of a final agency

17

action.

18

primary issue in the case was whether there was sufficient federal

19

control over the contested policy.

20

address whether there was final agency action.

21

1105 (holding that only the federal government can be a proper

22

defendant in an action to compel compliance with NEPA).

23

in Institute for Wildlife Protection, a terse Ninth Circuit

24

opinion, the Court held that the plaintiffs failed to challenge a

25

final agency action.

26

the plaintiffs asserted a programmatic challenge, not within the

27

district court’s jurisdiction, the Ninth Circuit provides no other

28

reasoning for its decision.

543 F.3d at 591.

Id.

In a judgment on the pleadings case,

Here, Defendants contradict Plaintiffs’ pleadings

Rattlesnake Coalition is distinguishable because the

The Ninth Circuit did not

205 F.App’x at 485.

16

See 509 F.3d at

Finally,

Aside from holding that

1

Determining whether the ETL, PGL, and White Paper are final

2

agency actions in the instant case requires a review of the full

3

administrative record because, as discussed supra, “the question of

4

jurisdiction is dependent on the resolution of factual issues going

5

to the merits’ of [the] action.”

6

373 F.3d 1035, 1040 (9th Cir. 2004).

7

requires the entire administrative record, it cannot, at this

8

juncture, determine whether there has been final agency action.

9

2.

10

Safe Air for Everyone v. Meyer,
Therefore, because the Court

2

Programmatic Challenges

Defendants argue that Plaintiffs’ NEPA and APA claims should

11

be dismissed because they are broad programmatic challenges.

12

Defendants argue that Plaintiffs do not challenge discrete or final

13

agency action, but the Corps’ vegetation removal policy.

14

Defendants contend that Plaintiffs do not challenge any site-

15
2

16
17
18
19
20
21
22
23
24
25
26
27
28

The Court reviewed Plaintiffs’ Notice of Supplemental Authority
(Doc. #53) in which Plaintiffs supplied the Court with the recently
issued per curium United States Supreme Court decision in the case
of Sackett v. E.P.A., 2012 U.S. LEXIS 2320 (U.S. Mar. 21, 2012).
In Sackett, the Supreme Court held that property owners and other
regulated parties may challenge administrative compliance orders
issued by the Environmental Protection Agency (“EPA”) under the
Clean Water Act. The Court found that the compliance order “has
all the hallmarks of APA finality.”
2012 U.S. LEXIS 2320 at *9.
The compliance order determined rights or obligations because the
plaintiffs had the legal obligation to “‘restore’ their property
according to an agency-approved Restoration Work Plan,” they had to
“give the EPA access to their property and to records and
documentation related to the conditions at the Site,” and “the
order expose[d] the Sacketts to double penalties in a future
enforcement proceeding.” Id. at *10. The government argued that
judicial review of the compliance order was unavailable unless and
until the EPA filed a civil enforcement suit against them. Id. at
*13-14. Unlike the present case, the government did not argue that
the compliance order was a draft or was not a final decision.
Here, the dispute concerns whether the ETL, PGL, and White Paper
are final agency actions or draft recommendations. Once the Court
considers the entire administrative record, it can turn to Sackett,
among other authority, to determine whether the disputed documents
constitute final agency action.

17

1

specific action.

Defendants continue that the three specific

2

examples Plaintiffs mention in their FAC do not prevent their

3

claims from being impermissible programmatic challenges because the

4

Plaintiffs do not make any specific allegations that the cited

5

actions were final, that the Corps violated NEPA, the APA, or the

6

ESA with regard to those instances, or that Plaintiffs were

7

themselves harmed by those actions.

8

Plaintiffs’ requested relief is not tailored to any specific

9

project but seeks to enjoin nationwide standards and statewide

Defendants argue that

10

activity.

11

open-ended challenges and Plaintiffs’ ESA claim does not fall

12

within the limited scope of the citizen management standard.

13

Defendants continue that the specific documents Plaintiffs

14

challenge do not have the force of law and do not have any force or

15

effect unless and until the Corps acts separately to apply them.

16

Defendants further argue that the ESA does not authorize

Plaintiffs counter that that they have challenged

17

identifiable, final agency actions within the meaning of the APA.

18

Plaintiffs argue that they seek vindication of procedural rights

19

conferred by NEPA, the ESA, and the APA, and the substantive

20

protections of the ESA.

21

the challenged actions cannot be determined in a 12(b)(1) motion.

22

The Supreme Court has made clear that the APA does not allow

Plaintiffs also argue that the nature of

23

“programmatic” challenges, but instead requires that Plaintiffs

24

contest a specific final agency action which has “an actual or

25

immediate threatened effect.”

26

U.S. 871, 882–94 (1990).

27

defendants violated the Federal Land Policy Act, NEPA, and APA in

28

the administration of the “land withdrawal review program” of the

Lujan v. Nat'l Wildlife Fed'n, 497

In Lujan, the plaintiffs alleged that the

18

1

Bureau of Land Management, but failed to challenge any particular

2

agency action that caused harm.

3

that the “land withdrawal review program” was not an identifiable,

4

much less final, agency action or series of such actions within the

5

meaning of the APA.

Id. at 875, 891.

The Court held

Id. at 890.

6

Unlike the challenge in Lujan to the “land withdrawal review

7

program,” Plaintiffs challenge identifiable, final agency actions

8

within the meaning of the APA.

9

procedural rights conferred by NEPA, ESA, and APA, and the

Plaintiffs seek vindication of

10

substantive protections of the ESA.

While the parties dispute

11

whether or not Defendants have issued final agency actions, if

12

through discovery, Plaintiffs can prove that the PGL, ESL, and

13

White Paper are final agency actions, then Plaintiffs’ claims are

14

proper.

15

Furthermore, Defendants’ argument that agency programs, as

16

opposed to specific decisions, are not subject to ESA compliance is

17

not persuasive.

18

to require consultation on programmatic actions and rules,

19

including consultation at the planning stage, not just at the site-

20

specific stage.”

21

Agric., 481 F.Supp.2d 1059, 1095 (N.D.Cal. 2007); see also Pac.

22

Rivers Council, 30 F.3d 1050, 1055 (9th Cir. 1994)(holding that the

23

Forest Service’s LRMPs which established comprehensible management

24

plans governing a multitude of individual projects required ESA

25

consultation because they may affect listed species).

26

“The Ninth Circuit has undeniably interpreted ESA

Citizens for Better Forestry v. U.S. Dep’t of

Similarly, NEPA compliance is required even if the challenged

27

actions are part of a broad program.

28

recognized and utilized in a number of cases before the Ninth
19

Programmatic EISs have been

1

Circuit. See, e.g., N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d

2

969 (9th Cir. 2006) (concluding that programmatic EIS prepared by

3

Forest Service with respect to oil and gas leasing in Alaskan

4

preserves was sufficiently site-specific even though it lacked

5

analysis of the effect on each parcel since there was no way of

6

knowing at time programmatic EIS was prepared what development

7

would materialize); Friends of Yosemite Valley v. Norton, 348 F.3d

8

789 (9th Cir. 2003) (discussing the distinction between site-

9

specific and programmatic EISs, and holding that programmatic EIS

10

prepared in conjunction with creation of a land management plan for

11

Yosemite was sufficient at the implementation stage and provided

12

guidelines for future actions); N. Alaska Envtl. Ctr. v. Lujan, 961

13

F.2d 886 (9th Cir. 1992) (holding programmatic EIS prepared in

14

conjunction with approval of mining in Alaskan parks was adequate).

15

The Ninth Circuit's recognition of the propriety of

16

programmatic EISs, and its distinction between the requirements for

17

programmatic EISs and site-specific EISs, suggests that, at least

18

in this circuit, NEPA's requirement of an EIS is not necessarily

19

limited to site or project-specific impacts or activities, as

20

Defendants suggest.

21

Circuit has held that “[a]n EIS for a programmatic plan . . . must

22

provide ‘sufficient detail to foster informed decision-making,’ but

23

that ‘site-specific impacts need not be fully evaluated until a

24

critical decision has been made to act on site development.’”

25

Friends of Yosemite, 348 F.3d at 800 (quoting Lujan, 961 F.2d at

26

890); see also California v. Block, 690 F.2d 752, 761 (9th Cir.

27

1982) (explaining that considerations regarding the adequacy of a

28

programmatic EIS may differ from those for a site-specific EIS).

In recognizing programmatic EISs, the Ninth

20

1

Indeed, Plaintiffs’ procedural challenges to the alleged

2

programmatic NEPA decisions are immediately ripe for review because

3

they “will influence subsequent site-specific actions” and “pre-

4

determine[] the future.”

5

F.3d 1080, 1088, 1091 (9th Cir. 2003).

6

finds that Plaintiffs’ programmatic challenge is cognizable under

7

these statues.

8
9

3.

Laub v. U.S. Dep’t of the Interior, 342
Accordingly, the Court

Rulemaking

Defendants argue that the Court should dismiss Plaintiffs’

10

third claim which alleges that the Corps violated the APA by

11

failing to complete formal rulemaking before adoption of new rules.

12

Defendants argue that the ETL sets forth “guidelines” to steer

13

future decisionmaking and is not a substantive rule that must

14

comply with the APA’s notice and comment procedures.

15

respond that the ETL, interim rule, and PGL are substantive rules

16

because they are designed to implement and prescribe Corps

17

procedures and requirements for vegetation management on and near

18

levees throughout the United States.

19

Plaintiffs

Under the APA, an agency “‘is required to follow prescribed

20

notice-and-comment procedures before promulgating substantive

21

rules.’”

22

(quoting Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112,

23

1124 (9th Cir. 2009), cert. denied, 132 S. Ct. 152 (Oct. 3, 2011).

24

Notice and comment requirements are only for substantive rules, not

25

“‘interpretive rules, general statements of policy, or rules of

26

agency organization, procedure, or practice.’”

27

Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010)).

28

definition of a substantive rule is broad and includes action that

Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010)

21

Id. (quoting Mora“The

1

is legislative in nature, is primarily concerned with policy

2

considerations for the future rather than the evaluation of past

3

conduct, and looks not to the evidentiary facts but to policy-

4

making conclusions to be drawn from the facts.”

5

Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d

6

1306, 1317 (Fed. Cir. 2006) (internal quotation omitted).

7

Here, Plaintiffs allege that the Corps adopted a new

Coal. For Common

8

vegetation management policy that supersedes prior guidance and the

9

Corps published in the Federal Register an interim rule that

10

explicitly revokes all prior variances.

11

that the ETL does far more than reiterate and clarify the

12

vegetation management standards previously stated in EM 1110-2-301.

13

Defendants reply that the ETL is not binding because there is a

14

chance for a waiver or modification demonstrating that the policies

15

were only intended to provide guidance within the Park Service.

16

This argument, however, is a factual challenge concerning whether

17

the ETL is a substantive rule or a guideline, and the Court cannot

18

resolve this issue without the full administrative record.

19

the Court is unable to decide this rulemaking issue until it has

20

had the opportunity to review the full administrative record.

21
22

4.

Plaintiffs further allege

Thus,

Ripeness

Defendants contend that in the alternative to their “no final

23

agency action” argument, this Court lacks jurisdiction because none

24

of Plaintiffs’ claims are ripe.

25

have not targeted a concrete application of any of the Corps’

26

policies.

27

revisions to their variance policy, and the Corps and California

28

state and local agencies are jointly developing a comprehensive,

Defendants argue that Plaintiffs

Defendants contend that they are still considering

22

1

long term program to upgrade and manage vegetation on Central

2

Valley flood management systems, including levees eligible for the

3

Rehabilitation and Inspection Program (“RIP”).

4

that Plaintiffs cannot show they will suffer “immediate, direct, or

5

significant hardship” if judicial review is delayed because it has

6

not been determined which sponsors of levee systems now enrolled in

7

the RIP might act to remove vegetation in order to comply with the

8

ETL’s vegetation standard.

9

Defendants, depend on any number of future decisions by the Corps

Defendants argue

Those decisions, according to

10

and the individual levee sponsors.

Furthermore, Defendants claim

11

that Plaintiffs have not articulated any hardship from delaying

12

judicial review until it becomes clear whether and how the ETL’s

13

vegetation standards will be applied to any particular levee

14

system, especially the levees in the Central Valley, and how that

15

specific application of the vegetation standard causes tangible

16

harm to Plaintiffs.

17

would, in Defendants’ view, inappropriately interfere with ongoing

18

administrative action on both national and local bases.

19

Defendants argue that the effects and application of the ETL and

20

the Corps’ policies are speculative on the existing record;

21

Plaintiffs do not challenge the application of the Corps’ policies

22

to any particular levee system, but rather they challenge the

23

policies on a programmatic basis and in their potential

24

application.

Moreover, judicial intervention at this stage

Finally,

25

Plaintiffs respond that Defendants’ argument on ripeness

26

ignores the tangible procedural injuries alleged by Plaintiffs due

27

to the Corps’ failure to undertake timely NEPA and ESA review.

28

Plaintiffs further argue that environmental plaintiffs need not
23

1

wait for environmental damage to occur to challenge an agency’s

2

NEPA compliance.

3

The basic rationale of ripeness is “to prevent the courts,

4

through avoidance of premature adjudication, from entangling

5

themselves in abstract disagreements over administrative policies,

6

and also to protect the agencies from judicial interference until

7

an administrative decision has been formalized and its effects felt

8

in a concrete way by the challenging parties.”

9

Gardner, 387 U.S. 136, 148-49 (1967).

Abbott Labs. v.

In assessing ripeness, a

10

court considers: “(1) whether delayed review would cause hardship

11

to the plaintiffs; (2) whether judicial intervention would

12

inappropriately interfere with further administrative action; and

13

(3) whether the courts would benefit from further factual

14

development of the issues presented.”

15

Sierra Club, 523 U.S. 726, 733 (1998).

Ohio Forestry Ass’n, Inc. v.

16

Defendants primarily rely on Ohio Forestry Ass’n, Inc. v.

17

Sierra Club, 523 U.S. 726 (1998) to argue that the case is not

18

ripe.

19

distinguishable from the current case because Plaintiffs allege

20

procedural injuries due to the Corps’ alleged failure to undertake

21

timely NEPA and ESA review.

22

alleged a substantive statutory violation; they did not allege a

23

procedural NEPA violation.

24

allege that Defendants violated NEPA, ESA, and APA for failure to

25

comply with the procedural requirements.

26

explained in Ohio Forestry, “NEPA, . . . simply guarantees a

27

particular procedure, not a particular result. . . . [A] person

28

with standing who is injured by a failure to comply with the NEPA

However, as Plaintiffs point out, Ohio Forestry is

The plaintiffs in Ohio Forestry

The Plaintiffs in this case, however,

24

As the Supreme Court

1

procedure may complain of that failure at the time the failure

2

takes place, for the claim can never get riper.”

3

rights conferred by NEPA [and the ESA] are procedural rather than

4

substantive, and plaintiffs allege a procedural rather than

5

substantive injury.”

6

1062, 1071 (9th Cir. 2002).

7

occurred when the allegedly inadequate EIS was promulgated.

8

is, any NEPA violation (and any procedural injury) inherent in the

9

[alleged lack of an EA or EIS] ha[s] already occurred.”

Id. at 737.

“The

Kern v. U.S. Bureau of Land Mgmt., 284 F.3d
“If there was an injury under NEPA, it
That

Id.

10

Furthermore, adjudicating the NEPA and ESA claims now will not

11

“inappropriately interfere with further administrative action”

12

because Defendants allegedly have already surpassed the stage in

13

which they should have issued the EA, EIS, or engaged in their ESA

14

consultation.

Id.

15

Furthermore, the Ninth Circuit has repeatedly held that

16

environmental plaintiffs need not wait for environmental damage to

17

occur to challenge an agency’s NEPA compliance.

18

Lockyer v. U.S. Dept. of Agric., 575 F.3d 999, 1011 (9th Cir. 2009)

19

(finding matter ripe for adjudication where it would be plaintiffs

20

only opportunity to challenge a rule on a nationwide, programmatic

21

basis); Kern, 284 F.3d at 1078 (warning against the “tyranny of

22

small decisions” by holding that “[a]n agency may not avoid an

23

obligation to analyze in an EIS environmental consequences that

24

foreseeably arise from [a program] merely by saying that the

25

consequences are unclear or will be analyzed later when an EA is

26

prepared for a site-specific program”); Idaho Conservation League

27

v. Mumma, 956 F.2d 1508, 1516 (9th Cir. 1992) (“[I]f the agency

28

action could be challenged at the site-specific development stage,
25

See Cal. ex. Rel.

1

the underlying programmatic authorization would forever escape

2

review.

3

represents a concrete injury the plaintiffs must, at some point,

4

have standing to challenge.”); Salmon River Concerned Citizens v.

5

Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994) (finding NEPA

6

challenge to regional EIS on herbicide use ripe for review).

To the extent that the plan pre-determines the future, it

7

Accordingly, Plaintiffs’ claims are ripe for review.

8

D.

9

Defendants argue that Plaintiffs lack standing to challenge

Standing

10

the ETL, PGL, or the program they allege arises from the two

11

policies because there is no live dispute over a specific concrete

12

application of those particular policies.

13

Plaintiffs’ alleged procedural injuries are not concrete injuries

14

and that Plaintiffs do not aver any concrete and immediate injury

15

because they fail to identify any particular situation where the

16

Corps is applying the challenged policies to compel the removal of

17

all vegetation from any levee system.

18

Defendants argue that

Plaintiffs argue that where procedural violations are at

19

issue, they do not need to demonstrate any actual environmental

20

harm to establish standing; an increased risk of harm resulting

21

from Defendants’ action or omissions is sufficient.

22

argue that the Ninth Circuit has repeatedly recognized “increased

23

risk” of injury as supporting standing in NEPA cases and harm

24

cognizable for the purposes of standing in ESA cases is found where

25

there is added risk to species when an agency makes a decision in

26

violation of the ESA’s consultation requirements.

27
28

Plaintiffs

Where procedural violations are at issue, in order “to show a
cognizable injury in fact, [Plaintiffs] must allege that
26

1

(1) [Defendants] violated certain procedural rules; (2) these rules

2

protect [Plaintiffs’] concrete interests; and (3) it is reasonably

3

probable that the challenged action will threaten their concrete

4

interests.”

5

341 F.3d 961, 969-70 (9th Cir. 2003).

6

burden to show that harm will in fact occur or already has occurred

7

from the challenged actions.

8

plaintiff’s standing under NEPA depended on “‘proof’ that the

9

challenged federal project will have particular environmental

10

effects, we would in essence be requiring that the plaintiff

11

conduct the same environmental investigation that he seeks in his

12

suit to compel the agency to undertake.”).

13

Citizens for Better Forestry v. U.S. Dep’t. of Agric.,
Plaintiffs do not have the

See id. at 972 (explaining that if a

Plaintiffs allege that the Corps has not complied with the

14

procedural requirements of NEPA and the APA rulemaking statutes or

15

the procedural and substantive mandate found in ESA Section 7, and

16

that these statutes protect plaintiffs’ concrete interests.

17

Plaintiffs’ members also testify to their interests in NEPA and ESA

18

compliance.

19

Decl.”) (Doc. #47-3) ¶¶ 10, 11; Decl. of Kelly L. Catlett in Supp.

20

of Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Catlett Decl.”) (Doc.

21

#47-2) ¶ 11.

22

affected rivers and levees for aesthetic and recreational purposes,

23

fishing, boating, bird watching, rafting, biking, enjoying the

24

scenic beauty the river and trees provide, and observing species

25

and that their interests at stake include the prevention of

26

environmental damage to these areas as well as the preservation of

27

endangered and threatened species that are found there.

28

Miller Decl. ¶ 10; Catlett Decl. ¶¶ 3-4.

See Second Decl. of Jeffrey Miller (“Second Miller

Plaintiffs’ members testify that they use and enjoy

27

See Second

They also testified that

1

the Corps’ action has, and may in the future, destroy the values

2

they derive from the rivers, levees, and species that inhabit these

3

areas.

4

Therefore, Plaintiffs have shown it is reasonably probable that the

5

challenged actions will threaten Plaintiffs’ concrete interests.

6

See, e.g., Second Miller Decl. ¶ 11; Catlett Decl. ¶¶ 5-10.

Defendants’ objection centers on the merits of the claims and

7

whether or not NEPA, ESA, or APA’s statutory requirements are

8

applicable to the Corps’ challenged action, which, Defendants

9

contend, are part of a program or policy.

However, the Ninth

10

Circuit has long recognized standing to challenge NEPA compliance

11

for programmatic decisions.

12

Forest Serv., 668 F.3d 609, 617-21 (9th Cir. 2012) (finding

13

standing to challenge programmatic forest plan); Sierra Forest

14

Legacy v. Sherman, 646 F.3d 1161, 1179-80 n.2 (9th Cir. 2011)

15

(finding standing to bring a facial challenge without challenge to

16

site specific implementation and explaining procedural injury under

17

NEPA was ripe for facial challenge); Salmon River Concerned

18

Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994) (finding

19

standing where a vegetation management plan failed to comply with

20

NEPA).

21

See, e.g. Pac. Rivers Council v. U.S.

Furthermore, Plaintiffs have demonstrated concrete interests

22

that meet the geographical nexus requirement for standing.

The

23

Ninth Circuit has described the concrete interests test as

24

requiring a geographic nexus between the individual asserting the

25

claim and the location suffering an environmental impact.”

26

Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir.

27

2011) (citations omitted).

28

that they will suffer harm by virtue of their geographic proximity

Western

“[E]nvironmental plaintiffs must allege

28

1

to and use of areas that will be affected by the [challenged]

2

policy.”

3

plaintiffs met the geographic nexus requirement where they

4

“properly alleged, and supported with numerous affidavits” their

5

members’ use and enjoyment of a “vast range of national forests”).

6

Citizens for Better Forestry, 341 F.3d at 971 (holding

Plaintiffs have alleged that the Corps’ actions may affect a

7

very large number of rivers, levees, and species throughout

8

California including the places which Plaintiffs use and enjoy and

9

many of the species in which Plaintiffs have alleged concrete

10

interests.

Plaintiffs’ members testify to their use of specific

11

areas that have been or may be affected, their interests in

12

vegetation on levees, the health of the riparian areas, and species

13

that depend on riparian areas, and species that depend on riparian

14

areas and many of the river systems with levees which may be

15

affected by the Corps’ challenged actions.

16

Decl. ¶¶ 3, 5-10 and Second Miller Decl. ¶¶ 4-6.

17

argue that that Plaintiffs must identify the imminent projects that

18

threaten harm to their concrete interests at the outset of the

19

litigation, as Plaintiffs point out, the full extent of the harm

20

and injury to Plaintiffs’ members is unknown due to the Corps’

21

alleged failure to comply with NEPA or the APA rulemaking

22

procedures, and to formally consult with wildlife agencies on

23

potential impacts to endangered species pursuant to the ESA, prior

24

to adopting the ETL and interim rule.

25

that any specific injury will occur in any specific [levee] that

26

their members will visit.

27

environmental consequences might be overlooked’ as a result of

28

deficiencies in the government’s analysis under environmental

See, e.g., Catlett
While Defendants

Plaintiffs “need not assert

‘The asserted injury is that

29

1

statutes.”

2

(quoting Salmon River Concerned Citizens v. Robertson, 32 F.3d

3

1346, 1355 (9th Cir. 1994)); see also Res. Ltd., Inc. v. Robertson,

4

35 F.3d 1300, 1302-03 (9th Cir. 1993) (holding that plaintiffs had

5

standing to challenge a forest plan even though they could not

6

point to any specific site where the injury is likely to occur).

7

Citizens for Better Forestry, 341 F.3d at 971-72

Defendants’ reliance on P.E.T.A. v. U.S. Dep’t of Health &

8

Human Services, 917 F.2d 15, 17 (9th Cir. 1990), where plaintiffs’

9

allegations were found wanting at the summary judgment stage, is

10

distinguishable.

11

establish standing on a summary judgment motion based on

12

declarations which failed to adequately assert personal injury or

13

harm from grant of funds to research institutions.

14

survive this motion to dismiss, Plaintiffs must plead “enough facts

15

to state a claim to relief that is plausible on its face.”

16

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

17

provide declarations sufficiently asserting injury and harm

18

stemming from Defendants’ actions.

19

In that case, the court found failure to

Here, to

Bell

Plaintiffs

The types of harm and injury Plaintiffs’ members testify to

20

are cognizable for purposes of standing.

21

because the alleged injury “is geographically specific, is caused

22

by the regulations at issue, and is imminent.”

23

Diversity, 588 F.3d at 708.

24

Plaintiffs have standing

Ctr. for Biological

Finally, Plaintiffs have demonstrated causation and

25

redressability.

In a procedural challenge, Plaintiffs can assert

26

their right to protect a concrete interest “without meeting all the

27

normal standards for redressability and immediacy.”

28

U.S. at 572 n.7.

Lujan, 504

Plaintiffs “must show only that they have a
30

1

procedural right that, if exercised, could protect their concrete

2

interest.”

3

(9th Cir. 2011) (citations omitted).

4

requiring the Corps to comply with NEPA, the ESA, and APA

5

rulemaking procedures, any of which may relieve some or all of

6

Plaintiffs’ injuries.

7

requirement for procedural injury purposes, Plaintiffs need not

8

show that compliance with ESA, APA, and NEPA will ultimately

9

redress their injuries, only that compliance with these

W. Watersheds Project v. Kraayenbrink, 632 F.3d, 485
Plaintiffs seek an order

To satisfy the causation and redressability

10

requirements may redress the injury.

11

Accordingly, Plaintiffs have

sufficiently alleged standing.

12
13

IV.

ORDER

14

For the reasons set forth above,

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The Court DENIES Defendants’ Motion to Dismiss.

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Defendants shall file their Answer to Plaintiffs’ First

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Amended Complaint within twenty (20) days of the date of this

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Order.

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IT IS SO ORDERED.
Dated: April 27, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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