Yellowstone to Uintas Connection v. Bolling

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YELLOWSTONE TO UINTAS CONNECTION, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. MEL BOLLING, Forest Supervisor Caribou-Targhee National Forest; NORA RASURE, Regional Forester for Intermountain Region; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants, and LOWER VALLEY ENERGY and STATE OF WYOMING, Defendant-Intervenors.

No. 4:20-cv-00192-DCN

United States District Court, D. Idaho

December 1, 2021

MEMORANDUM DECISION AND ORDER

David C. Nye, Chief District Judge.

I. INTRODUCTION

Pending before the Court is Plaintiffs' Motion to Supplement the Administrative Record, Complete the Administrative Record and/or Take Judicial Notice (“Motion to Supplement”). Dkt. 62. Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). Upon review, and for the reasons set forth below, the Court GRANTS in PART and DENIES in PART Plaintiffs' Motion.

II. BACKGROUND

This lawsuit involves the proposed installation of a natural gas pipeline stretching from Afton, Wyoming, to Montpelier, Idaho. To provide natural gas to the residents of the Afton and Star Valley, Wyoming area, Lower Valley Energy, Inc. (“LVE”) has proposed to construct, operate, and maintain a 12-inch or less diameter high pressure natural gas pipeline, referred to as the Crow Creek Pipeline project (the “Project”), connecting a receiving facility in Afton, Wyoming with a Williams Gas Company interstate trunk line located south of Montpelier, Idaho. In addition to the pipeline itself and the utility corridor, there will be above-ground facilities such as valves and staging areas. The proposed pipeline would traverse the Caribou-Targhee National Forest. In their Amended Complaint, Plaintiffs challenge the United States Forest Service (the “Forest Service”) and the United States Army Corps of Engineers' (the “Army”) (together referred to as “Defendants”) approvals of the natural gas pipeline proposed by LVE. Plaintiffs are nonprofit public interest organizations dedicated to protecting the environment.

Defendants filed a Motion to Dismiss (Dkt. 23) and later filed a renewed Motion to Dismiss (Dkt. 36) after Plaintiffs filed an Amended Complaint (Dkt. 27). After oral argument, the Court denied the Defendants' first Motion to Dismiss as moot and denied the Defendant's renewed Motion to Dismiss on the merits. Dkt. 47. In due course of discovery, Plaintiffs filed their Motion to Supplement. Dkt. 62. Defendants filed a Response in Opposition (Dkt. 63), to which Plaintiffs filed a Reply (Dkt. 64).

Plaintiffs bring five requests in their Motion: (1) a request that Defendants complete the administrative record with documents from the Army that address the Crow Creek Project; (2) a request that Defendants complete the administrative record with the Environmental Protection Agency (“EPA”) Comment Letters referenced in Exhibits 1 and 2; (3) a request that Defendants produce a privilege log disclosing all other withheld documents; (4) a broad request for any documents that were excluded from the record; and (5) a request that the Court take judicial notice of, or supplement the record with, Exhibits 3-12 contained in the Motion to Supplement. Because there is a variety of issues in the instant motion, the legal standard will be discussed with each corresponding issue instead of in a separate section.

At the outset, it is useful to distinguish between completing the record and supplementing the record.^[1] Materials that were considered by the agency but were omitted from the administrative record can be used to “complete the record, ” while “materials which were not considered by the agency but which are necessary for the court to conduct a substantial inquiry” can be used to “supplement the record.” Center for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1274 (D. Colo. 2010).

III. DISCUSSION

A. Army Documents Addressing the Crow Creek Project

Plaintiffs ask the Court to require that Defendants complete the administrative record with Army documents addressing the Crow Creek Project. Dkt. 62-1, at 6. Plaintiffs argue that the administrative record is lacking because it does not include an April 2020 verification letter that concluded the Project's proposed crossings of waters of the United States was authorized under Nationwide Permit 12 (“NWP 12”). Id. at 2. Because the record is lacking, Plaintiffs argue that the Court can order Defendants to complete the administrative record with Army documents applying NWP 12 to the Project. Id. at 3. Defendants argue that because Plaintiffs are bringing a facial challenge to NWP 12, the “NWP verification records are not part of the administrative record” and that consequently there “is no basis to include in the record documents applying NWP 12 to this particular project.” Dkt. 63, at 11. Plaintiffs replied that disclosure was appropriate because they were bringing both a facial challenge to NWP 12 as well as a challenge to the site-specific application under the Endangered Species Act (“ESA”). Dkt. 64, at 3.

The Court must deal with the preliminary question raised by Defendants in their response regarding whether Plaintiffs are bringing a facial or an as-applied challenge.^[2] The plain language of both the Amended Complaint (Dkt. 27) and the Court's prior Order (Dkt. 47) both indicate that the challenge to NWP 12 is a facial challenge, not an as-applied one. The Amended Complaint, Seventh Claim for Relief, states that:

NWP 12 is unlawful because it violates the ESA. Accordingly, to the extent the Crow Creek Pipeline relies on NWP 12, and/or to the extent the Corps issued verification of a pre-construction notification under NWP 12, the Forest Service and/or Corps are violating the ESA because NWP 12 must undergo programmatic ESA Section 7 consultation before it can be used to approve any new oil or gas pipelines.

Dkt. 27, at 51. The Court's Order also clearly shows that Plaintiffs were bringing a facial challenge, as the Court held that “Plaintiffs' claim that NWP 12 must undergo programmatic ESA consultation before it can be used for the Crow Creek Pipeline will remain before this Court.” Dkt. 47, at 14. The term “programmatic” used in both the Amended Complaint and the previous Court Order refers to broader issues with NWP 12, not case-specific issues.

Here, it is clear that Plaintiffs are attacking the Project but are also attacking the constitutionality of NWP 12 itself-a facial challenge. Plaintiffs' complaint focused on the “programmatic” issues with NWP 12 instead of the site-specific application errors in NWP 12, which one would expect to see in a typical as-applied challenge. Plaintiffs' Amended Complaint states that the use of NWP 12 violates the ESA only “to the extent” it was used. While a successful facial challenge may indicate that the ESA was violated in this site-specific application, that consequence does not automatically make the Plaintiffs' challenge an as-applied challenge.

Additionally, interpreting Claim 7 as an “as-applied” challenge would functionally amend the Complaint. It would defeat the entire distinction between as-applied challenges and facial challenges if the Court ruled that as-applied challenges are inherently part of a facial challenge, which is in essence what the Court is being asked to do. There is a long history of precedent from every single federal court maintaining the distinction between these two types of challenges, and the Court does not see fit to act otherwise. Thus, the Court holds that Plaintiffs are bringing a facial challenge to NWP 12 in Claim 7.

Plaintiffs err by analogizing this case to Sierra Club v. United States Army Corps of Engineers because the facts in Sierra Club are significantly different from the instant case. 981 F.3d 251 (4th Cir. 2020). Petitioners in Sierra Club brought a challenge that “the Verification [of a pipeline project] is unlawful because the Army Corps violated the Endangered Species Act (“ESA”) when it reissued NWP 12 in January 2017; thus, ostensibly, because the Verification relies on NWP 12, it must necessarily be arbitrary, capricious, and not in accordance with law.” Id. at 256. The Fourth Circuit declined to hear this question because it lacked jurisdiction. Id. While the Natural Gas Act did give the Fourth Circuit original jurisdiction to hear questions of natural gas facility licenses that was involved in the petitioners' claim, the Fourth Circuit held that:

In form, Petitioners purport to seek review only of the Verification and Reinstatement themselves, not NWP 12. But in substance, Petitioners are actually seeking collateral review of a separate decision - the Army Corps Secretary's findings and conclusions in its reissuance of NWP 12, not the Huntington and Norfolk Divisions' reliance on NWP 12 in issuing the Verification and Reinstatement. In so doing, Petitioners are attempting an end run around the narrow jurisdictional provisions that govern review of permits for natural gas pipeline projects.

Id. at 257. In other words, the Fourth Circuit held that the two issues-the review of NWP 12 and the reliance on it for authorizing the pipeline-were irreconcilably tied for the purposes of jurisdiction. This jurisdictional issue arose because the Fourth Circuit could only hear challenges to the pipeline project itself, not the review of NWP 12. Thus, this distinction between the challenge to NWP 12 and the challenge to the pipeline Sierra...