National Wildlife Federation v. United States Army Corps of Engineers

188 F.R.D. 381, 1999 U.S. Dist. LEXIS 21026, 1999 WL 711036
CourtDistrict Court, D. Oregon
DecidedAugust 26, 1999
DocketNo. 99-442-FR
StatusPublished

This text of 188 F.R.D. 381 (National Wildlife Federation v. United States Army Corps of Engineers) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Wildlife Federation v. United States Army Corps of Engineers, 188 F.R.D. 381, 1999 U.S. Dist. LEXIS 21026, 1999 WL 711036 (D. Or. 1999).

Opinion

OPINION

FRYE, District Judge.

The matters before the court are:

[383]*383(1) the Federal Defendant’s motion to reassign (# 15-1) or transfer (# 15-2);
(2) Potlatch Corporation’s motion to intervene pursuant to Fed.R.Civ.P. 24(# 7);
(3) the motion to intervene of the Columbia River Alliance (# 12); and
(4) the motion for intervention by the Port of Lewiston, Idaho; the Port of Whitman County, Washington; the Port of. Morrow, Oregon; and other interested public ports; and Shaver Transportation Company (collectively known as the Inland Ports and Naviga-. tion Group) (# 17).

BACKGROUND

On March 31, 1999, the plaintiffs, National Wildlife Federation, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Washington Wildlife Federation, and Idaho Wildlife Federation (collectively referred to as NWF), filed this complaint against the defendant, United States Army Corps of Engineers (hereinafter referred to as the Corps). Plaintiff NWF alleges in general that the actions of the Corps in operating four dams — Ice Harbor, Lower Monumental, Little Goose, and Lower Granite — all located on the Lower Snake River, violate the Clean Water Act, 33 U.S.C. § 1251 et seq., and its implementing regulations, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Plaintiff NWF specifically alleges that the actions of the Corps cause these four dams to operate in a manner that violate the water quality standards of the State of Washington for temperature and dissolved gas, as well as its antidegradation standard.

Plaintiff NWF 1) seeks a judicial declaration that the actions of the Corps violate the federal Clean Water Act and the Administrative Procedure Act; 2) seeks an injunction directing the Corps to comply with the water quality standards of the State of Washington; and 3) asks the court to set a schedule for the parties to comply with the court’s order.

1. Federal Defendant’s Motion to Reassign or Transfer

The Corps moves the court to reassign or transfer this ease to the Honorable Malcolm F. Marsh. The Corps contends that this case should be decided by Judge Marsh because he has presided over litigation involving Pacific Northwest salmon since 1986 and has a wealth of expertise in salmon-related issues. Plaintiff NWF does not oppose transfer to Judge Marsh but argues that the issues presented in this case have not been decided in any other case and need not be decided by Judge Marsh.

The court finds that the issues in this case do not directly involve any action previously decided by Judge Marsh. The Federal Defendant’s motion to reassign (# 15-1) or transfer (# 15-2) will be denied.

2. Motion to Intervene by Potlatch Corporation

3. Motion to Intervene by Columbia River Alliance

4. Motion to Intervene by Inland Ports and Navigation Group

Applicant intervenors move the court pursuant to Rule 24(a) and (b) of the Federal Rules of Civil Procedure to intervene as a matter of right, or alternatively to intervene permissively as party defendants. Applicant intervenors contend that their interests will be substantially affected.by any relief awarded to plaintiff NWF in this case.

Applicant intervenor Potlatch Corporation owns and operates pulp and paperboard facilities in Lewiston, Idaho as well as timber-lands dependent upon the configuration of river waters in their present navigable state. The Lewiston, Idaho facility of Potlatch Corporation obtains water from the Lower Snake River pursuant to licenses issued by the State of Idaho and discharges treated wastewater into the Snake River pursuant to a permit from the National Pollutant Discharge Elimination System (NPDES). Pot-latch Corporation, joined by the Northwest Pulp and Paper Association, contends that if the Lower Granite Dam is breached and the configuration of the Snake River is substantially altered, the ability of Potlatch Corporation and other holders of NPDES permits to [384]*384meet water quality standards is likely to be jeopardized.

Applicant intervenor Inland Ports and Navigation Group is comprised of public ports located on the Columbia and the Lower Snake Rivers which provide cargo handling facilities and/or services to tugboats and barges which carry cargo on the river system. Inland Ports and Navigation Group contends that it is entitled to intervene as a matter of right in order to protect the interests of its members in the navigable capacity of the inland waterway system developed by congressional action under the commerce clause of the United States Constitution. Inland Ports and Navigation Group contends that neither plaintiff NWF nor the Corps is in a position to adequately protect the interests of the public ports and the barge industry.

Applicant intervenor Columbia River Alliance is a nonprofit corporation representing the interests of its members who rely upon the Columbia and Snake Rivers, including agricultural interests, community and labor groups, manufacturers and industries, navigational interests, and public utilities. Columbia River Alliance argues that there are two principal interests that are threatened by this lawsuit: 1) the economic interests of its members that may be adversely affected by the relief sought by plaintiff NWF, such as the right to economical electric power under the Northwest Power Act; and 2) its participatory interests in securing reasonable and prudent decisions to effect the recovery of anadromous fish in the Columbia and Snake Rivers. Applicant intervenor Columbia River Alliance contends that plaintiff NWF seeks the drawing down of the reservoirs on the Snake River and the removal of the Snake River dams which threaten direct injury to its members who depend upon navigation and irrigation for their livelihood.

Plaintiff NWF contends that the applicant intervenors are not entitled to intervene as a matter of right because they do not have a legally protectable interest relating to the subject matter of this action. Plaintiff NWF contends that the economic effects argued by the applicant intervenors are speculative and do not confer a protectable interest in the applicant intervenors in this litigation concerning the Clean Water Act, which regulates environmental and not economic interests. Plaintiff NWF contends that the applicant intervenors are not regulated under the provisions of the Clean Water Act at issue in this litigation and, as a result, their asserted interests are not related to this case.

Finally, plaintiff NWF contends that the interests of the applicant intervenors are adequately represented by the Corps because the Corps and the applicant intervenors share the same ultimate objective, which is to defend the status quo of the operation of the four dams on the Lower Snake River.

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Bluebook (online)
188 F.R.D. 381, 1999 U.S. Dist. LEXIS 21026, 1999 WL 711036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-wildlife-federation-v-united-states-army-corps-of-engineers-ord-1999.