Stevens v. United States Army Corps of Eng'rs

1

LIVABLE LAKE STEVENS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and COSTCO WHOLESALE CORPORATION, Intervenor-Defendant.

No. 2:21-cv-01423-RAJ

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

June 21, 2024

ORDER GRANTING CROSSMOTIONS FOR SUMMARY JUDGMENT

Richard A. Jones United States District Judge

I. INTRODUCTION

THIS MATTER comes before the Court on a Motion for Summary Judgment filed by Livable Lake Stevens (“Plaintiff” or “LLS”), Dkt. # 35 Cross-Motion for Summary Judgment filed by United State Army Corps of Engineers (the “Corps”) and Seattle District Commander, Alexander L. Bullock (collectively, “Federal Defendants”), Dkt. # 37, and Cross-Motion for Summary Judgment filed by Intervenor-Defendant Costco Wholesale Corporation (“Costco”), Dkt. # 38. The Court has reviewed the motions, all submissions filed in support of and opposition to the motions, the balance of the record, and the applicable law. Plaintiff and Costco requested oral argument, but the Court finds this unnecessary. For the reasons set forth below, the Court DENIES Plaintiff's Motion for Summary Judgment, Dkt. # 35, and GRANTS Defendants' Cross-Motions for Summary Judgment. Dkts. # 37, 38.

II. BACKGROUND

This litigation arises out of a dispute over the Corps' issuance of a Clean Water Act Section 404 permit (“Section 404 permit”) to Costco for a project in Lake Stevens, Washington. The relevant factual history is described below.

Starting in April 2019, Costco and the City of Lake Stevens (“Lake Stevens”) collaborated to create a suitable site plan for a Costco warehouse in Lake Stevens. See generally AR1636-71, Order Adopting Binding Site Plan, (Apr. 16, 2020) (“City Site Plan”). The City Site Plan required Costco complete three separate mitigation measures. Id. at ¶ 1652. The Plan required Costco to purchase 3.044 credits from the Snohomish Mitigation bank, which is the Washington Department of Ecology and the Corps' preferred mitigation action. See id.; see also 33 C.F.R. 332.3(b)(2). The City Site Plan also required Costco to improve fish-blocking culverts in a tributary to Mosher creek and provide enhancement plantings. See AR1652. Lastly, the City Site Plan required Costco to create 0.45 acres of wetland/fish habitat along Wetland D, a measure that addressed the Tulalip Tribe's interest in Costco taking measures to enhance fish habitat near the project site. See id.; see also AR2477. Once Costco secured Lake Stevens' approval, the retailer applied for a Section 404 permit, proposing to fill 1.72 acres of wetlands in Lake Stevens in order to construct the warehouse, parking, and stormwater infrastructure.

When reviewing the Section 404 application, the Corps conducted analyses to ensure compliance with the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”). The Corps conducted a public interest review, analyzing the wetlands, fish and wildlife vales, water quality, and climate change effects that could impact the environment. See AR0018-22. The Corps evaluated nine alternatives to the proposed project, including a no-action alternative, five off-site, and three on-site alternatives. See AR0009-12. The Corps explained that six of the nine alternatives were not selected for more detailed analyses because they did not meet the purposes of the project. See id. In addition, the Corps provided a more detailed analysis of potential impacts associated with the three remaining sites. See id.

In March 2020, the Corps gave public notice that Costco applied for a Section 404 permit, and invited public comment while the Corps reviewed the application. See AR0899. LLS participated in the process and raised concerns about the environmental impacts of the Costco project. See e.g., AR1236-79; AR1222-35; AR2307-66. In November 2021, prompted by comments made by LLS, the Corps reached out to Costco to request a more accurate representation of Alternative Site # 2, one of the five off-site proposed alternative building sites. AR2308-09. The Corps worked with Costco's team to assess concerns raised by LLS in the comment. See AR2449; see also AR2452-62. The Corps evaluated a detailed report, prepared by Costco's consultant, that addressed Plaintiff's comments and evaluated the scientific information available. See Dkt. # 37 at 28-29 (citing AR0008-12). Ultimately, the Corps determined that Plaintiff's assertions were based on stale data and decided to rely on data provided by Costco's consultant in preparing the Environmental Assessment. See id.

On April 21, 2021, the Corps finalized its analysis and published its Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) (collectively, “EA/FONSI”). AR001-31. On April 29, 2021, the Corps issued Costco a Section 404 permit authorizing the retailer to fill 1.72 acres of wetlands. AR0032-36. In July 2021, after conducting initial site preparation, Costco started construction on the warehouse. See Dkt. # 38 at 4 (citing Dkt. # 38-1, Decl. of Steve Bullock ¶ 6). Costco completed mitigation efforts and construction of the warehouse as of November 2022. See id. at 5 (citing Dkt. # 38-1 Decl. of Steve Bullock ¶¶ 10-11).

In October 2021, four months after construction began on the site, LLS filed a lawsuit against the Federal Defendants for alleged violations of the NEPA, 42 U.S.C. §§ 4321-47, and the CWA, 33 U.S.C. §§ 1251-1387, for issuing the Section 404 permit to Costco. See Dkts. # 1, 19. Plaintiff challenges the sufficiency of the Corps' EA/FONSI, and the Corps' decision not to prepare an Environmental Impact Statement (“EIS”). Plaintiff requested that the Court: 1) enter Declaratory Judgment that Defendants violated NEPA, CWA, and APA; 2) vacate the wetland fill permit issued; and 3) provide injunctive relief to ensure that Federal Defendants comply with the CWA and NEPA when issuing similar permits. See Dkt. # 19 at 15-16. Although not initially a party to this litigation, the Court admitted Costco into this litigation as an intervenor-defendant. Dkt. # 11.

III. DISCUSSION

A. Justiciability

Before the Court can address the substance of LLS' claims, the Court must analyze certain justiciability issues. Costco argues LLS fails to establish the redressability prong of Article III standing and LLS' claims are prudentially moot. See Dkts. # 38, 43. As explained below, the Court is not convinced that LLS has established the redressability requirement of Article III standing. Furthermore, even if standing is established, the Court finds Plaintiff's claims are moot.

1. Standing

There are “three requirements for Article III standing: (1) an injury in fact that (2) is fairly traceable to the challenged conduct and (3) has some likelihood of redressability.” Pub. Lands for the People, Inc. v. U.S. Dep't of Agric., 697 F.3d 1192, 1195-96 (9th Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). With respect to the “injury in fact” requirement, the injury must be “concrete and particularized; ... actual and imminent, not conjectural or hypothetical.” Id. at 1196 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). There must be a causal connection between the alleged injury and the conduct at-issue. See Lujan, 504 U.S. at 560. The redressability inquiry for standing “analyzes the connection between the alleged injury and requested judicial relief.” Washington Env't Council v. Bellon, 732 F.3d 1131, 1146 (9th Cir. 2013).

a. Injury

LLS asserts three alleged injuries stemming from the Costco project. First, LLS asserts the project caused a loss of wildlife habitat that diminishes opportunities for LLS members to enjoy and benefit from fish populations. See Dkt. # 19 ¶ 10. Second, LLS claims its interest in the government performing credible analyses to minimize environmental impact was harmed by the Corps' analyses that led to the issuance of the Section 404 permit. Id. ¶ 11. Lastly, LLS asserts standing on the basis that they seek to ensure that applicable laws are followed. Id. ¶ 12.

LLS asserts that the Complaint and Declaration from a single LLS member, Doug Turner, demonstrates its basis for standing. See Dkt. # 35 at 9; Dkt. # 36. The Declaration makes generalizations about the alleged injury, claiming that the filling of the wetlands has harmed the salmon population and other wildlife in Mosher Creek, thus harming members of LLS. See Dkt. # 36 ¶ 5. The Declaration includes a photo of a dead salmon and supporting text to insinuate that this was caused by the wetland fill. See Id.

Plaintiff does not provide any facts or evidence that the filling of the wetlands and building of the Costco is connected to any harm of the animals beyond these claims made by concerned citizens. “[A]t the summary judgment stage, a factual showing of perceptible harm,” is required to establish standing. Lujan, 504 U.S. at 566. Generalized grievances, without factual support, untethered to a concrete action and concrete injuries, like the allegations LLS makes here, are insufficient to withstand Article III scrutiny. However, even if they withstood Article III scrutiny, as explained below, the Court could not likely grant meaningful relief to redress the alleged harm.

b. Redressability

To demonstrate redressability, a plaintiff must show that the injury “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41 (1976). The redressability inquiry for standing “analyzes the connection between the alleged injury and requested judicial relief.” Bellon, 732 F.3d at 1146.

Here the second and third injuries set forth by LLS seek vindication of the rule of law which do meet Article III's standing requirements. Although a judgment in LLS' favor may...