Opinion
Civil No. 99-442-FR
August 21, 2001
Craig N. Johnston, Stephanie M. Parent, Portland, Oregon, Todd D. True, Kristen L. Boyles, Earthjustice Legal Defense Fund, Seattle, Washington, for Plaintiffs.
David J. Cummings, Nez Perce Tribal Executive Committee, Office of Legal Counsel, Lapwai, Idaho, for Intervenor-Plaintiff, Nez Perce Tribe of Idaho.
Kristine Olson, United States Attorney, Thomas C. Lee, Assistant United States Attorney, Portland, Oregon, Fred R. Disheroon, Special Litigation Counsel, U.S. Department of Justice, Environment Natural Resources Division, Washington, D.C., for Federal Defendant.
Richard S. Gleason, Stoel Rives LLP, Portland, Oregon, Beth S. Ginsberg, Stoel Rives LLP, Seattle, Washington, Kevin J. Beaton, Stoel Rives LLP, Boise, Idaho, for Intervenor-Defendants Potlatch Corporation and Northwest Pulp and Paper Association.
Paul M. Murphy, James L. Buchal, Murphy Buchal LLP, Portland, Oregon, for Intervenor-Defendant Columbia River Alliance.
Guy C. Stephenson, Schwabe Williamson Wyatt, P.C., Portland, Oregon, Walter H. Evans, III, Schwabe Williamson Wyatt, P.C., Vancouver, Washington, for Intervenor-Defendant Inland Ports and Navigation Group (Port of Lewiston, Idaho; Port of Whitman County, Washington; Port of Morrow, Oregon; and Shaver Transportation Company, et al.).
OPINION AND ORDER
The matters before the court are 1) the plaintiffs' motion to compel compliance with court order, and, in the alternative, motion to amend complaint (#220); and 2) defendant United States Army Corps' motion to dismiss the complaint on grounds of mootness (#223).
FACTS
On February 16, 2001, this court ordered that "[d]efendant United States Army Corps of Engineers shall issue a new decision replacing the 1998 Record of Decision which addresses its compliance with its legal obligations under the Clean Water Act within sixty days of the date of this order." National Wildlife Fed'n v. United States Army Corps of Engineers, 132 F. Supp.2d 876, 896 (D.Or. 2001). By subsequent order of this court, the defendant Corps was granted an unopposed extension of time until May 17, 2001 to comply with its obligations under the Clean Water Act.
On May 15, 2001, the defendant Corps issued a new decision entitled "Record of Consultation and Statement of Decision, May 2001" which replaced the 1998 Record of Decision at issue in this case and all prior Records of Decision.
The plaintiffs move this court to 1) declare that the Corps has failed to comply with its prior order of February 16, 2001; 2) invalidate the Corps' May 2001 Decision; 3) order the agency to issue a new decision that complies with the Washington State water temperature standards as required by the Clean Water Act; and 4) order the agency to develop, within 30 days, a schedule of specific measures that will achieve compliance with the Clean Water Act by December 31, 2003. In the alternative, the plaintiffs move for leave to amend the complaint to challenge the Corps' May 2001 Decision under the Clean Water Act and the Administrative Procedures Act and asks the court to order the Corps to produce the administrative record for its May 2001 Decision within 30 days.
The plaintiffs contend that the May 2001 Decision does not address the compliance of the Corps with its legal obligations under the Clean Water Act as ordered by the court. The defendant Corps contends that the complaint should be dismissed because the actions challenged have been replaced by a new decision. The defendant Corps does not oppose the request of the plaintiffs for leave to file an amended complaint challenging the May 2001 Decision. The defendant Corps objects to the amended complaint tendered by the plaintiffs on the grounds that it alleges claims under the Clean Water Act and seeks injunctive relief that is not available to the plaintiffs.
RULING OF THE COURT
On May 15, 2001, the defendant Corps issued a decision replacing the 1998 Record of Decision. This court will address the plaintiffs' complaints relating to the merits of the May 2001 Decision when an amended complaint is filed and the administrative record is available for examination.
IT IS HEREBY ORDERED as follows:
1) the plaintiffs' motion to compel compliance with court order (#220-1) is DENIED; the alternative motion to amend complaint (#220-2) is GRANTED; and
2) defendant United States Army Corps' motion to dismiss the complaint on grounds of mootness (#223) is DENIED.
The plaintiffs have leave to file the proposed amended complaint within 10 days of the date of this opinion and order. The defendant Corps shall file the administrative record for the May 2001 Decision within 60 days of the filing of the amended complaint.