WildEarth Guardians v. U.S. Army Corps of Eng'rs

429 F.Supp.3d 1224

WILDEARTH GUARDIANS, Plaintiff,

v.U.S. ARMY CORPS OF ENGINEERS and U.S. Fish and Wildlife Service, Defendants.

No. 15-CV-159-WJ-KBM

United States District Court, D. New Mexico.

Filed December 20, 2019

Daniel L. Timmons, Samantha M. Ruscavage-Barz, WildEarth Guardians, Santa Fe, NM, Ashley Dye Wilmes, WildEarth Guardians, Lexington, KY, Stuart N. Wilcox, Stuart Wilcox LLC, Aurora, CO, for Plaintiff.

Andrew A. Smith, U.S. Department of Justice c/o U.S. Attorneys Office, Albuquerque, NM, Barclay T. Samford, United States Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON PETITION FOR AGENCY REVIEW

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court following a hearing on Plaintiff's Opening Merits Brief on Petition for Agency Review (Doc. 30)/ Motion for Summary Judgment (Doc. 42, filed 10/27/17) .¹ Having heard oral arguments, reviewed the pleadings and the record, and reviewed the applicable law, the Court finds that Plaintiff's Motion is not well-taken and, therefore, is DENIED .

INTRODUCTION

From its headwaters in the San Juan Mountains of southern Colorado, the Rio Grande River ("Rio Grande") flows approximately 1,865 miles south through the entire State of New Mexico, along the border between the State of Texas and the Republic of Mexico and to the Gulf of Mexico. See National Park Service ("NPS"), New Mexico: Elephant Butte Dam and Spillway , NPS Travel Bureau of Reclamation's Historic Water Project (Jan 13, 2017), https://www.nps.gov/articles/new-mexico-elephant-butte-dam-and-spillway.htm. The Newlands Reclamation Act of 1902 was enacted by Congress to fund and construct large irrigation projects in the arid lands of the American West. The United States Reclamation Service was established to build and administer the irrigation projects funded by the Newlands Reclamation Act of 1902. Elephant Butte Dam on the Rio Grande in southern New Mexico was one of the earlier irrigation projects built by the Reclamation Service, now the United States Bureau of Reclamation ("Bureau of Reclamation"). Construction on Elephant Butte Dam began in 1911 and when it was completed in 1916, Elephant Butte Lake became the largest irrigation reservoir in the world at that time.

According to the Complaint, Plaintiff WildEarth Guardians ("WEG") "is a non-profit environmental advocacy and conservation organization based in Santa Fe, New Mexico. [WEG] has more than 66,500 members and activists. More than 1,410 of these members and activists reside in New Mexico. [WEG] and its members are dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of the American West." Doc. 1 para 16. On its website, under the subheading "Rivers," WEG details its devotion to and efforts towards river conservation and within this subheading is an entire section discussing the Rio Grande. See WildEarth Guardians, A River Stretched Beyond Its Means , WildEarth Guardians: Rivers (last visited Dec. 19, 2019), https://wildearthguardians.org/rivers/rio-grande-americas-great-river/. This section contains the only significant reference to levees on the WEG website that the Court could find and the reference to levees is within this section and is part of the discussion under a subheading "Tear It Down" referencing WEG's efforts "... to ensure that unnecessary infrastructure—including dams, levees and other man-made obstacles—do not prevent large-scale restoration of the Rio [Grande] and its vast floodplain in the Tiffany Basin south of Socorro, New Mexico." Id. Neither the Complaint nor the WEG website claims that WEG has any expertise in levee construction or maintenance.

Defendant United States Army Corps of Engineers ("Corps") "is an agency of the United States within the Department of the Army. The 1948 Flood Control Act authorized the Corps to construct dams and levees for flood control purposes in the Rio Grande Basin. The Corps is responsible for ensuring compliance with [the National Environmental Protection Act] and other federal laws that apply to levee construction projects undertaken pursuant to the Flood Control Act." Doc. 1 para 22. On its website under the heading "Missions," there is a subheading "Civil Works" which then references the Corps flood management program and levee safety program, all part of the Corps Civil Works Mission to manage flood risk challenges. See Civil Works Mission , US Army Corps of Engineers, https://www.usace.army.mil/Missions/Civil-Works/ (last visited Dec. 19, 2019).

Defendant United States Fish and Wildlife Service ("FWS") "is an agency of the United States. The [FWS's] responsibilities include administration of the [Endangered Species Act] for terrestrial species that include the Rio Grande silvery minnow and Southwestern willow flycatcher. As part of its statutory duty to administer the [Endangered Species Act] for terrestrial species, the [FWS] has a mandatory duty to prepare biological opinions that fully comply with relevant laws and regulations." Doc. 1 para 23.

STATEMENT OF THE CASE²

WEG seeks to overturn the agency decisions by the Corps and FWS (collectively, "Federal Defendants") to proceed with the replacement of existing spoil bank, also known as earthen bank, levees along a portion of the Rio Grande by constructing engineered levees that are more durable and better able to protect the surrounding area from potential flooding.

WEG contends that the actions by the Federal Defendants threaten three endangered species and that Federal Defendants failed to properly examine the impacts on the environment in the area involved in this litigation. The endangered species at issue are: the Southwestern Willow Flycatcher ("flycatcher"), listed as endangered in 1995; the Rio Grande Silvery Minnow ("minnow"), listed as endangered in 1994; and the Yellow-Billed Cuckoo ("cuckoo"), listed as endangered in 2014 (collectively, the "three endangered species"). WEG contends that the Corps violated the procedures required under the National Environmental Policy Act ("NEPA") and that FWS violated the duties imposed on it by the Endangered Species Act ("ESA"). Federal Defendants contend that their decisions and procedures complied with the respective statutes and that WEG is not entitled to an injunction or any other requested relief.

The portion of the Rio Grande at issue is known as the Middle Rio Grande. Within this area, the Corps has proposed to construct 43 miles of permanent engineered levees to replace the existing spoil bank levees erected in the 1950s (the "Levee Project" or the "Project"). The Project impacts a portion of the Middle Rio Grande area called the San Acacia Reach ("SAR"), which is home to and contains designated critical habitat for the three endangered species. The SAR spans 58.2 miles from the San Acacia Diversion Dam ("SADD"), located just north of Socorro, New Mexico, to San Marcial, New Mexico, located just north of Elephant Butte Lake. WEG claims that the SAR is one of the last remaining relatively wild reaches of the Rio Grande in New Mexico. The City of Socorro is the largest population center within the SAR.

The SAR has a history of flooding, which is the reason the spoil bank levees were constructed in the 1950s. The Corps estimates that a 100-year flood could cause $98.4 million in damages in the SAR. The Project consists of replacing the existing non-engineered, earthen spoil bank levees with structurally sound, permanently engineered levees. The goal of the Project is to provide protection to areas within the SAR from high and low frequency flood events.

The timeline of relevant events is as follows:

1974: NEPA: Corps produces the initial Environmental Impact Statement ("EIS") for the Project

1992: NEPA: Corps produces the Supplemental Environmental Impact Statement ("1992 SEIS")

2011: ESA: Corps prepares 2011–12 Biological Assessment ("2011 BA")

2012: ESA: Corps prepares Programmatic Biological Assessment to clarify 2011 BA ("2012 PBA")

2013: ESA: FWS produces the Feb. 2013 Biological Opinion, which includes an Incidental Take Statement ("2013 BiOp")

2013: NEPA: Corps releases the Oct. 2013 Second Supplemental Environmental Impact Statement ("2013 SEIS")

2014: NEPA: Corps produces the May 2014 Record of Decision ("2014 ROD") 2014: ESA: Cuckoo is added to the Endangered Species List

2015: This Court grants an unopposed stay in litigation from Apr. 2015–Apr. 2016 because of ongoing consultation between the Corps and FWS under ESA (Doc. 17; Doc. 25 extends stay to 9/30/16)

2015: ESA: Corps prepares revised Sept. 2015 Programmatic Biological Assessment ("2015 PBA") as product of reinitiated consultation with FWS, which was triggered by listing of the Cuckoo

2015: NEPA: Corps determines that no supplementation to the 2013 SEIS is necessary ("2015 General Counsel Memorandum")

2016: ESA: FWS concludes consultation and produces the Sept. 2016 Biological Opinion ("2016 BiOp")

2017: Construction of first segment of project implementation concluded

DISCUSSION

I. Standard of Review Under Administrative Procedure Act

Courts review agency compliance with NEPA and ESA pursuant to the Administrative Procedure Act ("APA"), which provides that a "reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or that are not supported by "substantial evidence." 5 U.S.C. § 706(2)(A). As the United States Court of Appeals for the Tenth Circuit has explained, "[a]gency action is arbitrary and capricious if the agency ‘has relied on factors which Congress has not intended it to consider, entirely failed to consider an importance aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,’ or if the agency action ‘is so implausible that it could not be ascribed to a difference in...