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1 ANNA SEWELL (WSB # 48736) 2 Earthjustice 3 1625 Massachusetts Avenue, N.W., Suite 702 Washington, DC 20036-2243 4 (202) 797-5233 | Phone [email protected] 5 6 JAN HASSELMAN (WSB # 29107) Earthjustice 7 705 Second Avenue, Suite 203 Seattle, WA 98104 8 (206) 343-7340 | Phone 9 [email protected]

10 Attorneys for Plaintiffs

11 The Honorable James L. Robart 12 UNITED STATES DISTRICT COURT 13 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 14

15 SOUND ACTION, FRIENDS OF THE SAN ) JUANS, AND WASHINGTON ENVIRONMENTAL ) 16 COUNCIL, ) Case No. 2:18-cv-00733-JLR ) 17 Plaintiffs, ) 18 ) PLAINTIFFS’ OPPOSITION TO v. ) MOTION TO DISMISS 19 UNITED STATES ARMY CORPS OF ENGINEERS, ) 20 ) NOTE ON MOTION CALENDAR: Defendant. ) November 15, 2018 21 ) ) ORAL ARGUMENT REQUESTED 22 ) 23

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TABLE OF CONTENTS 1 INTRODUCTION ...... 1 2 STANDARD OF REVIEW ...... 2 3 BACKGROUND ...... 2 4 I. SHORELINE ARMORING IS A MAJOR DRIVER OF ECOLOGICAL 5 DEGRADATION...... 2 6 II. THE SEATTLE DISTRICT CORPS USES AN UNLAWFULLY LOW CWA 7 JURISDICTIONAL BOUNDARY FOR SHORELINES...... 3

8 III. THE CORPS REJECTED AN INTERAGENCY RECOMMENDATION TO 9 CHANGE THE CWA JURISDICTIONAL BOUNDARY IN THE SEATTLE DISTRICT...... 6 10 ARGUMENT ...... 8 11 I. THE SPELLMON MEMO CONSTITUTES FINAL AGENCY ACTION...... 8 12 13 A. The Spellmon Memo was the consummation of the Corps’ decision- making process...... 9 14 B. The Corps’ decision determines “rights or obligations.” ...... 16 15 II. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION...... 21 16 17 CONCLUSION ...... 24 18

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TABLE OF AUTHORITIES 1 2 Cases Page(s) 3 Alliance To Save Mattaponi v. U.S. Army Corps of Eng’rs, 515 F. Supp. 2d 1 (D.D.C. 2007) ...... 17 4 API v. EPA, 5 216 F.3d 50 (D.C. Cir. 2000) ...... 9, 16 6 Appalachian Power Co. v. EPA, 7 208 F.3d 1015 (D.C. Cir. 2000) ...... 8, 10, 14

8 Bennett v. Spear, 9 520 U.S. 154 (1997) ...... 8, 9, 16 10 City of Chicago v. U.S., 396 U.S. 162 (1969) ...... 8, 17 11 City of San Diego v. Whitman, 12 242 F.3d 1097 (9th Cir. 2001) ...... 19 13 Ctr. for Biological Diversity v. Kempthorne, 14 588 F.3d 701 (9th Cir. 2009) ...... 24

15 Ecology Ctr., Inc. v. U.S. Forest Serv., 16 192 F.3d 922 (9th Cir. 1999) ...... 20 17 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ...... 22 18 Havasupai Tribe v. Provencio, 19 2018 WL 5289028 (9th Cir. Oct. 25, 2018) ...... 17 20 Indep. Equip. Dealers Ass’n v. EPA, 21 372 F.3d 420 (D.C. Cir. 2004) ...... 19

22 In re Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000) ...... 15, 16 23 24 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ...... 20 25 Maya v. Centex Corp., 26 658 F.3d 1060 (9th Cir. 2011) ...... 21, 22 27 Nat’l Ass’n of Home Builders v. Norton, 28 415 F.3d 8 (D.C. Cir. 2005) ...... 19 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - iii Washington, DC 20036--2243 (202) 797-5233

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Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 1 417 F.3d 1272 (D.C. Cir. 2005) ...... 18 2 Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 3 752 F.3d 999 (D.C. Cir. 2014) ...... 8, 9, 14, 19

4 Navajo Nation v. U.S. Dept. of Interior, 5 819 F.3d 1084 (9th Cir. 2016) ...... 9, 11, 15, 19 6 Neighbors of Cuddy Mtn. v. Alexander, 303 F.3d 1059 (9th Cir. 2002) ...... 20 7 Northcoast Envtl. Ctr. v. Glickman, 8 136 F.3d 660 (9th Cir. 1998) ...... 20 9 Or. Nat. Desert Ass’n v. U.S. Forest Serv., 10 465 F.3d 977 (9th Cir. 2006) ...... 9, 10, 17

11 Robinson v. Hampton, 12 2010 WL 2541824 (W.D. Wash. June 21, 2010) ...... 2 13 S.C. Coastal Conservation League v. Pruitt, 318 F. Supp.3d 959 (D. S.C. 2018) ...... 12 14 Sackett v. EPA, 15 566 U.S. 120 (2012) ...... 8, 15 16 Safari Club Int’l v. Jewell, 17 842 F.3d 1280 (D.C. Cir. 2016) ...... 14

18 Scenic America, Inc. v. U.S. Dept. of Transportation, 836 F.3d 42 (D.C. Cir. 2016) ...... 14 19 20 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ...... 24 21 U.S. Army Corps of Eng’rs v. Hawkes Co., Inc, 22 136 S. Ct. 1807 (2016) ...... 18 23 U.S. ex rel. Lujan v. Hughes Aircraft Co., 24 243 F.3d 1181 (9th Cir. 2001) ...... 2, 22

25 White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ...... 2 26 27 Wichansky v. Zoel Holding Co., Inc., 702 F. App’x 559 (9th Cir. 2017) ...... 2 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - iv Washington, DC 20036--2243 (202) 797-5233

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Statutes 1 2 5 U.S.C. § 706 ...... 24 3 33 U.S.C. § 1251 ...... 4

4 33 U.S.C. § 1321 ...... 4

5 33 U.S.C. § 1342 ...... 4 6 33 U.S.C. § 1344 ...... 1, 3, 4 7 33 U.S.C. § 1362(7) ...... 4 8

9 10 Federal Regulations 11 33 C.F.R. § 323.2 ...... 4 12 33 C.F.R. § 328.3(c)(7) ...... 4, 12

13 33 C.F.R. § 328.4(b) ...... 4 14

15 Federal Register 16 80 Fed. Reg. 37,054 (June 29, 2015) ...... 12, 13 17 83 Fed. Reg. 5200 (Feb. 6, 2018) ...... 12 18 19 20

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1 INTRODUCTION

2 Puget Sound’s natural shorelines teem with biological life, from plants and insects, to 3 bivalves, crustaceans, and small fish. Among other habitat functions, shallow, vegetated beaches 4 provide safe refuges and food for juvenile salmon, and protective spawning grounds for forage 5 fish at the base of the marine food web. Natural shorelines also replenish themselves through the 6 7 free movement of sand and gravel in drift cells and feeder bluffs, maintaining plentiful beach

8 habitat for marine wildlife and humans alike. However, these functions are under nearly constant 9 assault throughout the Sound. Seawalls and other artificial shoreline armoring barriers extinguish 10 natural shoreline functions by cutting off supplies of sand and gravel, burying forage fish 11 12 spawning grounds, and generally making shorelines inhospitable to plant and insect life due to 13 the elimination of shallow beaches. The overall diversity of marine life plummets next to

14 artificial shoreline armoring. This degradation of habitat function cascades upwards through the 15 ecosystem, contributing to the loss of the region’s iconic species like salmon and orcas. 16 Shoreline armoring projects are prohibited without a permit under § 404 of the Clean 17 18 Water Act (“CWA”), 33 U.S.C. § 1344. However, the Seattle District of the U.S. Army Corps of

19 Engineers (the “Corps”) has abdicated its obligations under the CWA to protect the Sound’s 20 vulnerable shorelines. The Corps unlawfully uses the “mean higher high water” (“MHHW”) tidal 21 elevation to define the boundary of its CWA jurisdiction in Puget Sound, even though that 22 elevation is exceeded by a quarter of high tides. As a result, the vast majority of shoreline 23 24 armoring projects in Puget Sound are not reviewed under the CWA, or any other federal

25 environmental law. This lawsuit challenges the Corps’ violation of the CWA. Specifically, 26 Plaintiffs challenge the Corps’ January 2018 decision to reject an interagency recommendation to 27

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change its CWA tidal jurisdiction boundary, as well as the Corps’ failure to respond to Plaintiffs’ 1 2 June 2015 petition on this issue. The Corps has moved to dismiss the first of these claims. The

3 motion should be denied. Because the Corps made a final decision to reject a recommended 4 change to MHHW, this Court has subject matter jurisdiction to review the decision under the 5 Administrative Procedure Act (“APA”), and to vacate the directive as unlawful. 6 7 STANDARD OF REVIEW 8 For motions to dismiss under Fed. R. Civ. P. 12(b)(1), well-pleaded facts alleged in the

9 complaint must be taken as true. U.S. ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 10 (9th Cir. 2001). When faced with a motion to dismiss under Rule 12(b)(1), the court must first 11 determine if the challenge is facial to the sufficiency of the pleadings, or factual. White v. Lee, 12 13 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial challenge, the court must accept the allegations 14 of the complaint as true and look only to the allegations in the complaint to determine whether a

15 lack of jurisdiction appears on its face. Robinson v. Hampton, 2010 WL 2541824, at *1 (W.D. 16 Wash. June 21, 2010). In contrast, in a factual challenge, no presumption of truthfulness attaches 17 to the allegations and the movant must present evidence that disproves the allegations which 18 19 would, if true, invoke jurisdiction. Wichansky v. Zoel Holding Co., Inc., 702 F. App’x 559, 560 20 (9th Cir. 2017). The Corps’ motion to dismiss only claim one of the complaint is a facial

21 challenge because the Corps does not dispute Plaintiffs’ factual allegations and instead 22 challenges the finality of an agency action that itself is not in dispute. 23 BACKGROUND 24 25 I. SHORELINE ARMORING IS A MAJOR DRIVER OF ECOLOGICAL DEGRADATION. 26 Puget Sound contains approximately 2500 miles of shorelines that create homes for a 27 28 diverse array of marine plants and animals. Compl. ¶ 27. As the shorelines of Puget Sound have PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 2 Washington, DC 20036--2243 (202) 797-5233

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been developed for residential and commercial purposes, humans have built bulkheads, seawalls, 1 2 and other kinds of artificial shoreline armoring to harden the natural shorelines. More than a

3 quarter of Puget Sound’s shorelines are already armored, and approximately 3483 feet of new 4 shoreline armoring were added annually, on average, between 2011 and 2015. Id. ¶ 28. 5 Shoreline armoring causes a multitude of well-documented adverse effects on the health 6 7 of Puget Sound’s nearshore ecosystems. First, armoring of natural shorelines alters critical 8 ecological functions such as erosion and sediment movement, causing beaches to lower, narrow,

9 and eventually disappear. Id. ¶ 29. Shoreline armoring also harms important juvenile salmon 10 habitat by removing vegetation that supplies young salmon with shelter and insects for food. Id. 11 ¶ 32. In addition, armoring harms shellfish habitat, and generally reduces shallow water refuges 12 13 for smaller species by giving larger predators access to nearshore areas. Id. Finally, shoreline 14 armoring prevents forage fish like surf smelt and sand lance from spawning in upper beach areas,

15 and causes other detrimental habitat changes such as the elimination of vegetation and fine 16 sediments. Id. ¶ 31. These changes carry meaningful cumulative impacts for the marine food 17 web. For example, the reduction in forage fish spawning habitat makes this prey less available to 18 19 threatened and endangered salmon, who themselves are prey for endangered orcas. Id. It is well

20 documented that shoreline armoring is associated with an overall decrease in taxonomic diversity 21 and abundance—indeed, the Corps itself has recognized as much. Id. ¶¶ 32-33. These ecological 22 harms will be exacerbated by the effects of climate change, as sea levels rise and coastal areas 23 24 experience increasing demands for new installations of armoring. Id. ¶ 34. 25 II. THE SEATTLE DISTRICT CORPS USES AN UNLAWFULLY LOW CWA JURISDICTIONAL BOUNDARY FOR SHORELINES. 26 Section 404 of the CWA prohibits the discharge of dredged or fill materials into 27 28 navigable waters without a permit. 33 U.S.C. § 1344. The jurisdiction of the CWA extends to PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 3 Washington, DC 20036--2243 (202) 797-5233

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“navigable waters,” and the CWA defines that term as “the waters of the United States, including 1 2 the territorial seas.” See id. §§ 1251, 1321, 1342, 1344; id. § 1362(7). For tidal waters, the term

3 “waters of the United States” is defined by regulation to mean water up to the “high tide line.” 33 4 C.F.R. § 328.4(b). “High tide line” is defined as “the line of intersection of the land with the 5 water’s surface at the maximum height reached by a rising tide . . . encompass[ing] spring high 6 7 tides and other high tides that occur with periodic frequency . . . .” 33 C.F.R. § 328.3(c)(7). 8 The construction of seawalls, bulkheads, and similar structures for shoreline armoring

9 within navigable waters constitutes a discharge of dredged or fill materials under § 404 of the 10 CWA. 33 C.F.R. § 323.2. Therefore, shoreline armoring projects below the high tide line are 11 prohibited without a permit issued by the Corps. Id. The Seattle District of the Corps issues 12 13 CWA § 404 permits in Puget Sound, and it uses MHHW as a proxy for the high tide line, even 14 though MHHW is significantly lower than the maximum tidal height. Compl. ¶ 36. Because

15 MHHW uses a statistical average, the boundary is frequently exceeded. Specifically, the MHHW 16 mark is surpassed between three to five times a week in Washington State, meaning about a 17 quarter of high tides are above MHHW in the Seattle District. Def. Br. Ex. 2 at 19, 13-18 (Fig. 5a 18 19 -5f). Therefore, the MHHW boundary excludes many periodic tides. Because the Seattle District

20 treats MHHW as the CWA high tide line in Puget Sound, it does not require CWA § 404 permits 21 for armoring projects above MHHW but below the true high tide line, in contravention of the 22 language of the CWA and governing regulations. 23 24 The Seattle District adopted MHHW as its high tide line marker when the CWA was 25 initially passed because it was the highest tidal elevation data available at the time. Def. Br. Ex. 2

26 at 19. However, data for higher tidal elevations are now accessible, including the “highest 27 astronomical tide” (“HAT”), which constitutes the highest predicted periodic astronomical tide 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 4 Washington, DC 20036--2243 (202) 797-5233

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occurring every 19 years, and the “mean annual highest tide” (“MAHT”), which is the average of 1 2 the highest annual tide predicted over a period of 19 years. Compl. ¶ 40. Compared with

3 MHHW, the MAHT is available at far more tide stations – more than double the number of tide 4 stations that collect MHHW. Def. Br. Ex. 2 at 22. The MAHT is substantially higher than 5 MHHW, but still below the HAT. Compl. ¶ 40. The difference between MHHW and HAT on a 6 7 shoreline in Puget Sound varies by location, ranging from 15 to 32 vertical inches. Id. ¶ 41. The 8 difference between MHHW and MAHT ranges from 13 to 29 inches. Id. The area between

9 MHHW and MAHT represents up to 8600 acres of shoreline area in Washington. Id. 10 As a result of the Corps’ unlawfully narrow assertion of its CWA jurisdiction, most 11 armoring projects that should be reviewed through the federal permitting process are escaping 12 13 review. Simply put, any entity wishing to construct a shoreline armoring project above MHHW 14 is told by the Corps that no § 404 permit is required, even where it is below the high tide line.

15 The Corps’ refusal to exercise its CWA duties up to the high tide line is consequential. Federal 16 permitting is an important process because it requires: a review of the project’s impacts on water 17 quality and the “public interest” under the CWA; analysis of environmental impacts under the 18 19 National Environmental Policy Act (“NEPA”); and a review of effects to species protected by

20 the Endangered Species Act (“ESA”), among other things. Id. ¶ 43. This entire layer of federal 21 law is unlawfully circumvented for most armoring projects in the Puget Sound region. 22 For many years, Indian Tribes, government agencies, and environmental organizations in 23 24 and around Washington state have urged the Seattle District to use a higher jurisdictional 25 boundary for CWA § 404 jurisdiction in the Puget Sound region. For example, on June 24, 2015,

26 Plaintiffs sent a formal petition to Region 10 of the Environmental Protection Agency (“EPA”) 27 and the Seattle District regarding the Seattle District’s unlawful use of MHHW as its 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 5 Washington, DC 20036--2243 (202) 797-5233

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jurisdictional boundary. Id. ¶ 54. Plaintiffs have not received any formal response to their 1 2 petition.1 Id. ¶ 55. The National Marine Fisheries Service (“NMFS”), the federal agency charged

3 with the administration of the ESA as it relates to the protection of marine wildlife and 4 anadromous fish species, has advocated for years for the use of HAT to define CWA § 404 5 jurisdiction in the Puget Sound. Id. ¶ 45. The Northwest Indian Fisheries Commission 6 7 (“NWIFC”), an organization consisting of designated representatives from the twenty treaty 8 tribes in western Washington, has also long advocated for HAT due to the significant adverse

9 impacts to treaty-protected salmon caused by the use of MHHW. Id. ¶ 46. Finally, the Governor 10 of the State of Washington requested in a letter dated December 16, 2016, that the Seattle 11 District change its CWA § 404 tidal jurisdiction to HAT, or something similar. Id. ¶ 47. Like 12 13 NMFS and NWIFC, Governor Inslee cited the need to protect ESA-listed salmon as one of the 14 primary motivators for requesting the change, and he expressed concern that salmon stocks

15 continue to decline despite significant recovery efforts, impacting treaty rights, ecology, and the 16 economy. Id. These efforts reflect a long-standing consensus that the Corps’ failure to properly 17 implement the CWA is contributing to serious and ongoing degradation of shoreline habitat in 18 19 the Puget Sound.

20 III. THE CORPS REJECTED AN INTERAGENCY RECOMMENDATION TO CHANGE THE CWA JURISDICTIONAL BOUNDARY IN THE SEATTLE DISTRICT. 21 22 In 2016, the Corps’ Seattle District, EPA Region 10, and the West Coast Region of the

23 National Oceanic and Atmospheric Administration (“NOAA”) responded to the long-standing 24 advocacy on this issue by forming an interagency workgroup specifically to address the Seattle 25 District’s inadequate CWA tidal jurisdiction boundary. This workgroup reviewed available 26

27 1 Claim two of Plaintiffs’ complaint alleges the Corps unreasonably failed to respond to this 28 petition. This claim is not at issue in the present motion to dismiss. PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 6 Washington, DC 20036--2243 (202) 797-5233

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scientific data, consulted with scientists, collected tidal data at field sites, and conducted an 1 2 interagency analysis of the relevant legal and administrative implications. Def. Br. Ex. 2 at 1-5.

3 In November 2016, the interagency workgroup completed a report that made a 4 recommendation to the Corps’ Northwestern Division that it adopt MAHT as the high tide line 5 marker for the Seattle District region. Id. at 26. The report concluded that MAHT would be more 6 7 protective of critical shoreline habitat, would only minimally impact the Seattle District’s 8 workload, and is an elevation that “is predictable, reliable, repeatable, reasonably periodic,

9 measurable, simple to determine, is scientifically defensible, and based on data that is reasonably 10 available and accessible to the public.” Id. This compromise was reached even though the 11 workgroup recognized that HAT is the most ecologically protective elevation, stating that HAT 12 13 “would extend CWA review process to the uppermost reaches of the intertidal zone, including all 14 forage fish spawning habitat . . .” and that it “would encompass the designated Critical Habitat

15 for threatened and endangered species listed in Puget Sound.” Id. at 24. 16 Nonetheless, in a memorandum from the Northwestern Division of the Corps to the 17 Seattle District dated January 19, 2018, Major General Scott Spellmon formally rejected the 18 19 workgroup’s recommendation to use MAHT. Moreover, Gen. Spellmon directed the Seattle

20 District to stop considering any change to its high tide line jurisdictional boundary, stating: “I am 21 directing [the Seattle District Corps] to shift away from further consideration of changing the 22 Corps Clean Water Act jurisdiction limit in tidal waters.” Def. Br. Ex. 1, ¶ 8. Gen. Spellmon 23 24 offered two brief explanations for this decision. First, he stated that changing the high tide line 25 definition would not be an “organizationally consistent” use of resources because there is an

26 ongoing effort by the EPA to delay and repeal its 2015 “Clean Water Rule” defining the term 27 “waters of the United States” under the CWA. Id. ¶¶ 3, 4. Gen. Spellmon did not explain the 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 7 Washington, DC 20036--2243 (202) 797-5233

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relevance of the 2015 Clean Water Rule, which by its express terms does not affect the 1 2 nationwide high tide line definition (see infra), nor did he state or imply that the Corps would

3 revisit the decision about the high tide line proxy in the Seattle District at the conclusion of those 4 rulemaking efforts. Second, Gen. Spellmon stated, without explanation, that he “maintain[s] that 5 elevations such as MAHT as they would be applied in Puget Sound are not consistent with the 6 7 intent of the current definition of [high tide line].” Id. ¶ 5. This lawsuit followed. 8 ARGUMENT

9 The Corps does not seek to defend Gen. Spellmon’s decision to reject the interagency 10 recommendation to raise the Seattle District’s CWA high tide line marker. Instead, the Corps 11 argues this Court lacks jurisdiction because the Spellmon Memo is not “final agency action” 12 13 under the APA, and because Plaintiffs lack standing. The Corps’ arguments are incorrect as a 14 matter of law, and the motion to dismiss should be denied.

15 I. THE SPELLMON MEMO CONSTITUTES FINAL AGENCY ACTION. 16 An agency action is “final” under the APA when it “mark[s] the ‘consummation’ of the 17 agency’s decisionmaking process” and is an action “by which ‘rights or obligations have been 18 determined.’” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal citations omitted). Under the 19 20 APA, there is a presumption favoring judicial review of agency actions. See Sackett v. EPA, 566

21 U.S. 120, 128 (2012); City of Chicago v. U.S., 396 U.S. 162, 164 (1969). 22 Final agency actions are not limited to formal rules, and courts frequently find that 23 informal agency documents containing directives and decisions are final agency actions. See, 24 25 e.g., Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1007 (D.C. Cir. 2014) 26 (holding that a directive that provided “guidance to enforcement officials about how to handle

27 permitting decisions” was a final agency action); Appalachian Power Co. v. EPA, 208 F.3d 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 8 Washington, DC 20036--2243 (202) 797-5233

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1015, 1022-23 (D.C. Cir. 2000) (holding that a guidance document that contained an agency 1 2 position on certain permit requirements was a final agency action); Navajo Nation v. U.S. Dept.

3 of Interior, 819 F.3d 1084, 1091-92 (9th Cir. 2016) (holding that a written decision about the 4 return of human remains and funerary objects was a final agency action). Contrary to the Corps’ 5 argument, the Spellmon Memo is reviewable final agency action under the law of this circuit. 6 7 A. The Spellmon Memo was the consummation of the Corps’ decision-making process. 8 The first prong of the Bennett test is whether an action “mark[s] the ‘consummation’ of 9 the agency’s decisionmaking process.” Bennett, 520 U.S. at 178. This analysis asks “whether the 10 11 agency has rendered its last word on the matter,” for the purpose of “determin[ing] whether an

12 action is final and is ripe for judicial review.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 13 F.3d 977, 984 (9th Cir. 2006) (internal quotation marks and citation omitted). In other words, 14 agency statements released in the middle of an ongoing decision-making process are not 15 16 reviewable. For example, when an agency announces that it will make a decision on an issue at a 17 later point in time, that deferral does not mark the end of the decision-making process. See API v.

18 EPA, 216 F.3d 50, 68-69 (D.C. Cir. 2000). In contrast, when an agency has concluded the 19 decision-making process, the substantive decision at the end of that process is a reviewable 20 action, even if the agency retains the discretion to change that decision at a later point in time. 21 22 See Nat’l Envtl. Dev. Ass’n’s Clean Air Project, 752 F.3d at 1006-07.

23 1. Rejection of the recommendation to change the high tide line jurisdictional boundary from MHHW to MAHT 24 25 The Spellmon Memo satisfies the first finality factor under Bennett because it constituted 26 the end of the Corps’ decision-making process regarding the high tide line marker in the Seattle

27 District. After years of advocacy from local tribes, government agencies, and environmental 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 9 Washington, DC 20036--2243 (202) 797-5233

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organizations, in 2016 three federal agencies convened a workgroup to address the proper high 1 2 tide line marker in the Seattle District. The group consisted of thirteen lawyers, scientists, and

3 agency leaders, representing each of the three agencies. Def. Br. Ex. 2 at App. D, 42. The 4 workgroup spent approximately eleven months evaluating the legal, scientific, and practical 5 implications of five alternative tidal elevations. Id. at 1-5. Of those five options, the workgroup 6 7 eventually selected MAHT as the most appropriate tidal elevation, and prepared a report 8 formally recommending that the Northwestern Division of the Corps adopt that marker for the

9 Seattle District. Id. at 26. In short, the agencies identified a problem, spent nearly a year 10 analyzing the most appropriate solution, and then presented their recommendation to the decision 11 maker – Gen. Spellmon, the commander of the Northwestern Division of the Corps. 12 13 Gen. Spellmon formally rejected that recommendation. In fact, he went further, 14 specifically forbidding any future consideration of any change to the CWA tidal marker. In the

15 Memo, Gen. Spellmon incorrectly stated that MAHT is “not consistent with the intent of the 16 current definition of [high tide line],” and concluded: “I am directing [the Seattle District Corps] 17 to shift away from further consideration of changing the Corps Clean Water Act jurisdiction limit 18 19 in tidal waters . . . .” Def. Br. Ex. 1, ¶¶ 5, 8. It is hard to imagine how a decision could be more

20 “final” than this: Spellmon made a formal decision on the issue and ended the discussion. Gen. 21 Spellmon neither stated nor implied that his decision was temporary or otherwise subject to 22 change. It was the “last word on the matter.” Or. Nat. Desert Ass’n, 465 F.3d at 984. Therefore, 23 24 the decision to reject the recommended change to MAHT and instead continue using MHHW is 25 “the agency’s settled position, a position it plans to follow in reviewing [ ] permits,” and “a

26 position it will insist [ ] authorities comply with . . . .” Appalachian Power Co., 208 F.3d at 1022. 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 10 Washington, DC 20036--2243 (202) 797-5233

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In a similar case, the Navajo Nation sued the Department of Interior and National Park 1 2 Service for their failure to return certain human remains and funerary objects taken from the

3 tribe’s land. Navajo Nation v. U.S. Dept. of Interior, 819 F.3d 1084 (9th Cir. 2016). In that case, 4 the Navajo Nation had been requesting the return of the remains and objects since the mid-1990s, 5 and had received informal denials by the Park Service on the grounds that the agency was 6 7 conducting an ongoing inventory to determine the correct cultural affiliations under the Native 8 American Graves Repatriation Act (“NAGPRA”). Id. at 1089-90. The U.S. Department of the

9 Interior Solicitor also issued an opinion during this time that the remains and objects must be 10 inventoried under NAGPRA. Id. Finally, in 2011, the Navajo Nation sent a letter to the Park 11 Service threatening to file a lawsuit if the agency did not immediately return the remains and 12 13 objects. Id. at 1090. The Park Service wrote a letter in response, in which the agency again 14 denied the request for the remains and objects due to the agency’s decision to apply NAGPRA,

15 reiterating its longstanding position on the issue. Id. at 1090-92. Faced with an argument that the 16 Park Service’s letter did not constitute final agency action, the 9th Circuit Court of Appeals 17 “ha[d] no trouble concluding that the decision to follow Interior’s solicitor’s guidance and 18 19 continue inventorying the remains and objects consummated the Park Service’s decisionmaking

20 process.” Id. at 1092. The court further rejected an argument that the decision to apply NAGPRA 21 was ongoing action (and thus not final) because the Park Service was still in the process of 22 determining the cultural affiliation of the remains and objects under NAGPRA. Id. 23 24 This case is very similar. Here, the Corps made a decision in a letter to formally and 25 finally reject a recommendation to make a change to its longstanding position on its CWA

26 jurisdictional boundary. The rejection marked the end of the decision-making process. Moreover, 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 11 Washington, DC 20036--2243 (202) 797-5233

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as with the ongoing inventorying in Navajo Nation, the decision is concluded even if the Corps 1 2 continues other unrelated efforts pertaining to the problem of hard armoring of shorelines.

3 2. Separate “Waters of the U.S.” rulemaking

4 The Corps attempts to conflate the decision-making process at issue in this case—the 5 recommended change to the Seattle District’s high tide line marker—with the separate, 6 nationwide decision-making process regarding the scope of the definition of “waters of the U.S.” 7 8 under the CWA. Def. Br. at 16. That effort should be rejected. As previously explained, the

9 nationwide “high tide line” definition under the CWA is included in the nationwide “waters of 10 the U.S.” definitional regulation. 33 C.F.R. § 328.3(c)(7). That broader “waters of the U.S.” 11 regulation has been the subject of recent rulemakings, beginning with the 2015 rule commonly 12 13 called the “Clean Water Rule.” However, when EPA passed the 2015 Clean Water Rule, the 14 agency explicitly recognized that the definition of “high tide line” in the 2015 Clean Water Rule

15 remained unchanged from the Corps’ pre-2015 definition. See 80 Fed. Reg. 37,054, 37,073 (June 16 29, 2015). Under both regulatory schemes, the national “high tide line” definition is identical, 17 and no agency has proposed changing the definition during the recent reconsiderations of the 18 2 19 2015 Clean Water Rule. Therefore, there is no indication the national “waters of the U.S.” 20 21

2 22 The most recent reconsiderations include the agencies’ February 2018 delay of the 2015 Clean Water Rule for a period of two years, which instructs agencies to follow the pre-2015 regulatory 23 definitions of the “waters of the United States.” 83 Fed. Reg. 5200 (Feb. 6, 2018). The U.S. District Court for the District of South Carolina vacated the agencies’ two-year delay of the 2015 24 Clean Water Rule because the agencies did not provide a sufficient opportunity for the public to 25 comment on the rule. See S.C. Coastal Conservation League v. Pruitt, 318 F. Supp.3d 959 (D. S.C. 2018). Due to court injunctions of the 2015 Clean Water Rule in some states, the 2015 26 Clean Water Rule is currently in effect in part of the country, and the pre-2015 “Waters of the 27 U.S.” regulations are in effect in the remainder of the country. However, because the definition of “high tide line” is the same in both the 2015 regulatory regime and the pre-2015 regime, these 28 Clean Water Rule developments have no effect on the definition of “high tide line.” PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 12 Washington, DC 20036--2243 (202) 797-5233

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rulemakings will have any effect on the nationwide definition of high tide line, much less the 1 2 narrower application of that definition in a tidal elevation that is specific to the Seattle District.

3 While the Spellmon Memo does reference the ongoing developments regarding the 4 “waters of the U.S.” rulemakings, it never suggests that the decision on the Seattle District’s high 5 tide line marker is contingent on the outcome of those proceedings, or that it will change at the 6 7 conclusion of those proceedings. Def. Br. Ex. 1, ¶ 3. Contrary to the Corps’ suggestion in the 8 motion to dismiss, the Memo neither explicitly nor implicitly indicates the agency is “deferring”

9 its decision due to the “waters of the U.S.” rulemakings. Def. Br. at 16-17. Instead, the Memo 10 merely observes that the high tide line “definition is contained in the regulations that are the 11 subject of this ongoing interagency rulemaking effort,” without explaining the relevance of that 12 13 statement. Def. Br. Ex. 1, ¶ 3. Again, the rulemakings are irrelevant because EPA and the Corps 14 have not proposed to change the definition of “high tide line” in any of these rulemaking efforts.3

15 Gen. Spellmon was faced with the narrow task of deciding whether to accept an interagency 16 recommendation to change the high tide line marker in the Seattle District, not the broader scope 17 of the “waters of the U.S.” definition or the national “high tide line” definition. Therefore, the 18 19 20

21 3 Additionally, the Corps’ implicit suggestion that the 2015 Clean Water Rule impacts the 22 decision about the high tide line marker in the Seattle District because the Rule uses the term “high tide line” as a reference for the determination of whether certain non-tidal waters are 23 jurisdictional under the CWA, is a red herring. Def. Br. at 8-9. The high tide line defines the landward limits of the tidal waters that are subject to the jurisdiction of the CWA, and the 2015 24 Clean Water Rule did not change that definition, as the Corps admits. Id. at 8. This definition is 25 the only “waters of the U.S.” definition that is relevant here because the issue in this case only addresses the way the Seattle District measures tidal waters on a beach up to the high tide line. 26 The fact that the Clean Water Rule made certain determinations for “neighboring” waters that are not tidal waters and that fall within a given numeric distance from the high tide line, is irrelevant 27 to the issue here. 80 Fed. Reg. at 37,059, 37,071, 37,105. 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 13 Washington, DC 20036--2243 (202) 797-5233

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decision on the Seattle District’s high tide line marker unequivocally ended with Gen. 1 2 Spellmon’s command in the Memo.

3 Moreover, even if the EPA and Corps later decide to change the “high tide line” 4 definition during the ongoing “waters of the U.S.” rulemakings (and there is no indication that 5 they plan to do so), that potential for future hypothetical changes cannot vitiate the finality of the 6 7 agency decision in the Memo. “The fact that a law may be altered in the future has nothing to do 8 with whether it is subject to judicial review at the moment.” Appalachian Power Co., 208 F.3d at

9 1022. For example, in Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, the D.C. Circuit Court 10 of Appeals rejected an argument by EPA that its policy directive to enforcement officials about 11 how to handle permitting decisions was not the consummation of its decision-making process 12 13 because it was “still ‘assessing what additional actions may be necessary,’” and had “‘ongoing’” 14 “‘deliberations surrounding the matter.’” Nat’l Env’l Dev. Ass’n's Clean Air Project, 752 F.3d at

15 1006 (citation omitted). In finding that this directive was still a final agency action, the court 16 explained that “[a]n agency action may be final even if the agency's position is ‘subject to 17 change’ in the future.” Id. (citation omitted). The court further found that this conclusion was 18 19 “hardly surprising because many agency actions are subject to reconsideration.” Id. at 1007; see

20 also Safari Club Int’l v. Jewell, 842 F.3d 1280, 1289 (D.C. Cir. 2016) (“The ‘possibility’ that the 21 Service ‘may revise [its decision] . . . based on ‘new information’ . . . is a common characteristic 22 of agency action, and does not make an otherwise definitive decision nonfinal.’”) (citation 23 24 omitted); Scenic America, Inc. v. U.S. Dept. of Transportation, 836 F.3d 42, 56 (D.C. Cir. 2016) 25 (holding that an agency guidance document which interpreted a prohibition on billboards with

26 flashing or moving lights was a final agency action, even though the guidance document stated 27 that the agency “may provide further guidance in the future as a result of additional information” 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 14 Washington, DC 20036--2243 (202) 797-5233

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and explaining that “[t]he fact that a regulation might be interpreted again at some point in the 1 2 indeterminate future cannot, by itself, prevent the initial interpretation from being final.”).

3 Therefore, the possibility that EPA and the Corps could later revisit the definition of “high tide 4 line” does not affect the finality of the Corps’ decision to reject the recommended change to the 5 Seattle District’s high tide line marker. 6 7 3. Directive to undertake other shoreline projects that do not involve changing the high tide line jurisdictional marker 8 Similarly, the fact that the Spellmon Memo also instructs the Seattle District to undertake 9 efforts to explore different shoreline measures related to “natural and restorative approaches,” 10 11 instead of changing the high tide line, does not hold open the decision about the high tide line

12 marker, as the Corps suggests. Def. Br. at 17. For example, in Sackett v. EPA, the U.S. Supreme 13 Court held that a “compliance order” under the CWA was the consummation of EPA’s decision 14 about the Sackett family’s property, even though “a portion of the order that invited the Sacketts 15 16 to ‘engage in informal discussion of the terms and requirements’ of the order with the EPA and 17 to inform the agency of ‘any allegations [t]herein which [they] believe[d] to be inaccurate.’” 566

18 U.S. 120, 127 (2012); see also Navajo Nation, 819 F.3d at 1092 (holding that a decision to reject 19 a request for the return of human remains and funerary objects was a final agency action even 20 though there was an ongoing inventory of those remains and objects to determine the appropriate 21 22 cultural affiliations). In other words, once an agency has made a final decision regarding a

23 discrete query, the existence of ongoing agency activities that are tangential to the topic involved 24 in the decision do not undermine the finality of the specific decision. 25 The cases cited by the Corps regarding deferrals of agency actions are inapposite. Def. 26 Br. at 16-17. In In re Bluewater Network, the D.C. Circuit granted a writ of mandamus to force 27 28 the Coast Guard to promulgate certain rules mandated by the Oil Pollution Act of 1990. 234 F.3d PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 15 Washington, DC 20036--2243 (202) 797-5233

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1305, 1316 (D.C. Cir. 2000). In doing so, the court rejected the agency’s argument that the 1 2 petition for a writ should be construed as an untimely petition challenging its earlier, temporary

3 regulations, and, in dicta, observed that deferrals of future rulemakings are not generally final 4 agency actions. Id. at 1313. The observation is irrelevant in this case because the Corps has given 5 no indication it is deferring a decision on the Seattle District’s high tide line marker. The Corps’ 6 7 additional reliance on API v. EPA, Def. Br. at 16, is misplaced for the same reason. In that case, 8 in which environmental petitioners sought review under the Resource Conservation and

9 Recovery Act of EPA’s decision to defer a hazardous waste listing determination for certain 10 wastes, EPA had explicitly stated it would “defer” making a listing determination. 216 F.3d at 11 68-69. There was no such explicit, or even implicit, statement of deferral of the decision to reject 12 13 the interagency recommendation in this case. 14 B. The Corps’ decision determines “rights or obligations.”

15 Under the second Bennett factor, an agency action is final when it is an action “by which 16 ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” 17 Bennett, 520 U.S. at 178 (citation omitted). The Corps’ decision to reject the interagency 18 19 recommendation to change the high tide line marker in the Seattle District from MHHW to 20 MAHT, Def. Br. Ex. 1, was a decision that determined obligations for permitting under § 404 of

21 the CWA. As a result of the decision, the Seattle District will continue applying MHHW as its 22 legal high tide line, instead of switching to MAHT. Landowners will not need to obtain CWA 23 permits for armoring projects proposed between MHHW and MAHT on the shoreline, and tribes, 24 25 the State of Washington, and Plaintiffs will continue to feel the impacts of inadequate

26 implementation of the CWA. 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 16 Washington, DC 20036--2243 (202) 797-5233

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Courts have repeatedly found that when responding to requests for decisions, agency 1 2 decisions to not change the status quo are still final agency actions. In City of Chicago v. U.S.,

3 the U.S. Supreme Court held that a decision by the Interstate Commerce Commission to 4 discontinue investigations into the terminations of certain rail lines, and thus to continue the 5 status quo of those terminations, was a final agency action. The Court found it would be illogical 6 7 to hold that an affirmative decision to halt the terminations was final agency action without also 8 holding that the reverse, “negative” decision of allowing the terminations to continue was final

9 agency action. City of Chicago, 396 U.S. at 166. The Court explained: “[a]n order of the 10 Commission dismissing a complaint on the merits and maintaining the status quo is an exercise 11 of administrative function, no more and no less, than an order directing some change in status. . . 12 13 . We conclude, therefore, that any distinction, as such, between ‘negative’ and ‘affirmative’ 14 orders, as a touchstone of jurisdiction to review the Commission’s orders, serves no useful

15 purpose.” Id. at 166-167. See also Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d at 987, 16 990 (holding that annual operating instructions issued to grazing permit holders were final 17 agency actions even though they did not alter the legal regime, and citing cases that “demonstrate 18 19 that Bennett’s second requirement can be met through different kinds of agency actions, not only

20 one that alters an agency’s legal regime.”); Alliance To Save Mattaponi v. U.S. Army Corps of 21 Eng’rs, 515 F. Supp. 2d 1, 10 (D.D.C. 2007) (noting that EPA’s failure to veto a permit was “a 22 consummated ‘agency action’ that APA views as final, notwithstanding the fact that the agency 23 24 ‘did’ nothing.”); Havasupai Tribe v. Provencio, 2018 WL 5289028, at *5 (9th Cir. Oct. 25, 25 2018) (holding that a “mineral report” that validated a preexisting mining interest was a final

26 agency action, even though the legal right to mine was previously conferred by the miner’s 27 discovery of valuable minerals and the report merely “determined” that those rights were valid). 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 17 Washington, DC 20036--2243 (202) 797-5233

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In a case that is similar to the CWA high tide line jurisdictional determination at issue 1 2 here, the U.S. Supreme Court recently addressed the finality of “approved jurisdictional

3 determinations” under the CWA. In U.S. Army Corps of Eng’rs v. Hawkes Co., Inc., the Court 4 held that the Corps’ determination that certain waters are “waters of the U.S.” subject to the 5 jurisdiction of the CWA, is a final agency action because there are “direct and appreciable legal 6 7 consequences.” 136 S. Ct. 1807, 1814 (2016). In so holding, the Court also addressed whether a 8 “negative” jurisdictional determination—i.e., a determination that certain waters are not “waters

9 of the U.S.” and thus no CWA permit is needed—is also a final agency action. Id. The court 10 found that a negative jurisdictional determination is still a final agency action because it “both 11 narrows the field of potential plaintiffs and limits the potential liability a landowner faces for 12 13 discharging pollutants without a permit.” Id. Likewise, the decision by the Corps in this case to 14 not require CWA permits for activities between MHHW and MAHT was a decision that

15 determined rights and obligations because it allows landowners to proceed with projects above 16 MHHW without permits and limits the liability of those landowners. See also Nat’l Ass’n of 17 Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1279-80 (D.C. Cir. 2005) (holding 18 19 that the reissuance of blanket, nationwide CWA permits was a final agency action because the

20 permits “authorize certain discharges of dredged and fill material into navigable waters without 21 any detailed, project-specific review by the Corps’ engineers” and thus “directly affect the 22 investment and project development choices of those whose activities are subject to the CWA”). 23 24 The cases cited by the Corps are distinguishable. Def. Br. at 18-19. First, in City of San 25 Diego v. Whitman, the Ninth Circuit held that an EPA letter was not final agency action because

26 it addressed the application of a statute to a permit renewal application that had not yet been 27 submitted, and therefore the agency decision-making process had not even begun and would not 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 18 Washington, DC 20036--2243 (202) 797-5233

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begin until the permit renewal application was submitted. 242 F.3d 1097, 1098-1102 (9th Cir. 1 2 2001). Unlike the premature letter in Whitman, the Spellmon Memo made a final decision and

3 was not a prelude to a decision that would be made in the future. The Corps also cites Indep. 4 Equip. Dealers Ass’n v. EPA, a case in which the D.C. Circuit held that a “purely informational” 5 agency letter about its longstanding interpretations, which did not contain any mandatory 6 7 language or directives, was not a final agency action because it was a restatement of its 8 interpretations in an “abstract setting” which “imposed no obligations and denied no relief.” 372

9 F.3d 420, 424-27 (D.C. Cir. 2004). The letter “compel[led] no one to do anything.” Id. at 427. 10 Unlike the letter in Indep. Equip. Dealers Ass’n, the Spellmon Memo was not “purely 11 informational,” and instead specifically denied requested relief and compelled the Seattle District 12 13 Corps to apply MHHW as its jurisdictional marker going forward. See also Nat’l Envtl. Dev. 14 Ass’n’s Clean Air Project, 752 F.3d at 1007 (distinguishing Indep. Equip. Dealers Ass’n for

15 similar reasons). Finally, the Corps cites Nat’l Ass’n of Home Builders v. Norton, a case in which 16 the D.C. Circuit held that recommended, voluntary survey protocols for an endangered butterfly 17 did not have legal effect because the protocols were not mandatory and a failure to use the 18 19 protocols would not change legal statuses. 415 F.3d 8, 14-16 (D.C. Cir. 2005). Unlike in Norton,

20 the directive to stop considering a change to the tidal marker was not a merely “voluntary” 21 suggestion. Rather, it had the legal effect of determining the limit of the Corps’ CWA 22 jurisdiction. As explained above, purposeful agency decisions to continue the legal status quo in 23 24 the face of requested relief, are final agency actions. See also Navajo Nation, 819 F.3d at 1092 25 (holding that a decision to reject a request for the return of remains and objects was a final

26 agency action even though it reiterated and refused to change a longstanding legal position). 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 19 Washington, DC 20036--2243 (202) 797-5233

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Furthermore, contrary to the Corps’ suggestions, Plaintiffs do not challenge a “broad 1 2 programmatic” policy rather than a final agency action. Def. Br. at 20-21. Unlike in the Lujan v.

3 Nat’l Wildlife Fed’n line of cases cited by the Corps, the challenge in this case is to a specific 4 agency decision to reject a proposal to change a jurisdictional marker. This is not an overall 5 challenge to an ongoing program without reference to a specific agency decision, as was the case 6 7 in Lujan. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890-91 (1990). Moreover, in each of 8 the other cases cited by the Corps that applied Lujan, there were future decision-making steps

9 that the plaintiff could challenge. Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 670 (9th Cir. 10 1998) (holding that agency management programs did not make specific decisions and when 11 there is a proposal to implement actual strategies at a later date that proposal would be a 12 13 reviewable action); Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999) 14 (holding that the agency’s ongoing monitoring efforts in a forest were not a final agency action,

15 and explaining that “monitoring is several steps removed from final agency action” because it 16 takes place before decisions are made about management changes).4 That is not the case here. 17 Finally, the Corps blithely suggests that instead of challenging its decision to reject the 18 19 working group’s recommendation to implement MAHT, Plaintiffs can sue an innocent

20 landowner for failing to obtain a § 404 CWA permit for a project above MHHW. Def. Br. at 19. 21 The argument can only be described as astonishing. The Corps has instructed the public they do 22

23 4 The Corps also cites Neighbors of Cuddy Mtn. v. Alexander, a case in which the Ninth Circuit 24 Court of Appeals found that forest “monitoring and management practices are reviewable when, 25 and to the extent that, they affect the lawfulness of a particular final agency action,” and held that the plaintiffs in that case successfully challenged monitoring and management practices that 26 were reviewable because they challenged the Forest Service’s management practices in the 27 context of specific timber sales. 303 F.3d 1059, 1067-70 (9th Cir. 2002). Therefore, this case demonstrates the ability of plaintiffs to challenge specific agency decisions that are made in the 28 context of broader policies, as is the case here. PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 20 Washington, DC 20036--2243 (202) 797-5233

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not need permits for projects above MHHW. Instead of accepting responsibility for its own 1 2 failure to comply with the CWA, the Corps has expressed a willingness to burden members of

3 the public with thousands of dollars of potential fines and fees under CWA enforcement actions. 4 Similarly, the Corps’ suggestion that Plaintiffs could alternatively challenge a permit issued by 5 the Corps for a shoreline armoring project purposefully misses the point—the Corps is not 6 7 issuing permits for shoreline armoring projects in the Seattle District due to the unlawfully low 8 high tide line marker. Def. Br. at 18-19. Plaintiffs cannot challenge a permit that does not exist.

9 For these reasons, Gen. Spellmon’s decision rejecting the working group 10 recommendation and formally closing the door on further discussion about the Seattle District’s 11 high tide marker is a “final agency action” for purposes of APA review. 12 13 II. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION. 14 Next, the Corps contends that Plaintiffs do not have standing to bring this action because

15 they cannot allege concrete harm stemming from the rejection of the interagency 16 recommendation. This effort also must be rejected, particularly in the context of a motion to 17 dismiss. See Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (“‘At the pleading 18 19 stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, 20 for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts

21 that are necessary to support the claim’’”) (citation omitted). Plaintiffs have associational 22 standing to challenge the Corps’ decision to maintain the unlawful high tide line definition in the 23 Seattle District because their members have suffered, and continue to suffer, concrete harms due 24 25 to the application of MHHW instead of a lawful and appropriate jurisdictional marker. “An

26 association has standing to bring suit on behalf of its members when its members would 27 otherwise have standing to sue in their own right, the interests at stake are germane to the 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 21 Washington, DC 20036--2243 (202) 797-5233

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organization’s purpose, and neither the claim asserted nor the relief requested requires the 1 2 participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.

3 Servs., Inc., 528 U.S. 167, 181 (2000) (citation omitted). Plaintiffs satisfy this standard because 4 their members have suffered injuries-in-fact that are redressable by a favorable court decision, 5 the shoreline ecosystem and wildlife protection interests at stake are germane to these 6 7 conservation organizations’ purposes, and the lawsuit does not require the participation of 8 individual members. Compl. ¶ 11; Hughes Aircraft Co., 243 F.3d at 1189 (facts alleged in the

9 complaint must be taken as true). 10 Contrary to the Corps’ assertions, Plaintiffs have suffered concrete harms directly related 11 to the Corps’ decision to reject the interagency recommendation regarding a change to the high 12 13 tide line boundary in the Seattle District, and these harms are continuing. Members of the 14 plaintiff organizations have submitted declarations demonstrating their recreational and aesthetic

15 interests in specific Puget Sound shorelines, which are at risk from the harms associated with 16 continued shoreline armoring that escapes review under federal environmental laws.5 17 McCoughey Decl. ¶¶ 5-7; Gale Decl. ¶¶ 2, 6-7; Sundberg Decl. ¶¶ 1, 10-11, 15. For years, these 18 19 members have experienced harms related to the shorelines and the species they care about due to

20 armoring that is unregulated at the federal level; when the Corps rejected the interagency 21 recommendation, the Corps ensured that those harms will continue unabated. Without federal 22 review under the CWA, ESA, and NEPA, no federal agency is considering the numerous adverse 23 24 impacts on the public and on endangered and threatened species. Due to the Corps’ decision to 25

26 5 Although this motion to dismiss should be decided on the face of the complaint, and “general 27 factual allegations of injury” should suffice for a motion to dismiss, Maya, 658 F.3d at 1068, Plaintiffs nonetheless submit declarations to demonstrate standing in order to fully respond to the 28 pending motion. PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 22 Washington, DC 20036--2243 (202) 797-5233

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maintain a high tide line proxy which excludes federal review of these known harms, the 1 2 member declarants will continue to be harmed by the federally unregulated armoring of the

3 shorelines and marine species they care about. McCoughey Decl. ¶¶ 7-13; Gale Decl. ¶¶ 9-14; 4 Sundberg Decl. ¶¶ 11-15, 17. Each time shoreline armoring occurs without consideration of the 5 attendant harm to the public, it causes long-lasting, ongoing harm. 6 7 Finally, the harms stemming from the Spellmon Memo are not abstract or theoretical. For 8 example, Plaintiffs requested approved jurisdictional determinations under the CWA on four

9 specific shoreline armoring projects above MHHW but below the true high tide line in their 2015 10 petition to the Corps. See Ex. A at 10-12 (Plaintiffs’ 2015 Petition to the Corps and EPA). As 11 stated above, Plaintiffs have not received a response to that request for a determination about the 12 13 applicability of the CWA to those four projects. Furthermore, since the Spellmon Memo was 14 released on January 19, 2018, at least 60 shoreline armoring projects have been permitted by the

15 State of Washington on shorelines, all or nearly all of which are above MHHW but below the 16 true high line. Carey Decl. ¶ 14. Because the Spellmon Memo rejected the recommendation to 17 raise the tidal marker to MAHT, none of those projects were reviewed under the CWA or other 18 19 federal environmental laws. Id. This circumvented federal review, going forward, continues the

20 harm that stems from the absence of consideration of projects’ impacts on water quality and the 21 “public interest” under the CWA, as well as a review of effects to species protected by the ESA 22 and an analysis of environmental impacts under the NEPA. Id. ¶ 15. These harms concretely 23 24 manifest in specific shoreline armoring projects, such as the many projects permitted in 2018 in 25 documented surf smelt and sand lance spawning habitat, and those harms will continue as long as

26 the tidal marker remains at MHHW because armoring projects will continue to be proposed and 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 23 Washington, DC 20036--2243 (202) 797-5233

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permitted above MHHW and outside the scope of the Seattle District Corps’ jurisdictional 1 2 boundary.6 Id. ¶¶ 14-16.

3 CONCLUSION 4 This matter is properly before this Court and this Court has subject matter jurisdiction 5 under the review provisions of the APA, 5 U.S.C. § 706. The Corps has taken final action that 6 7 has real legal consequences for the regulated public, and Plaintiffs have standing to bring this 8 lawsuit. Plaintiffs respectfully request that the Court deny the Corps’ motion to dismiss claim

9 one of the complaint. 10

11 Respectfully submitted, 12 /s/Anna Sewell 13 Anna Sewell, WSBA # 48736 14 Earthjustice 1625 Massachusetts Avenue NW 15 Suite 702 Washington, DC 20036 16 202-667-4500 17 [email protected]

18 /s/Jan Hasselman Jan Hasselman, WSBA # 29107 19 Earthjustice 20 705 Second Avenue Suite 203 21 Seattle, WA 98104 22 206-343-7340 [email protected] 23 Attorneys for Plaintiffs

24 6 This case is very different from Summers v. Earth Island Inst., 555 U.S. 488 (2009), where the 25 conservation groups settled the only part of their case that presented a concrete harm but then continued to challenge the “regulation in the abstract” based on standing declarations that failed 26 to identify any connection between areas that plaintiffs used and the nationwide application of the regulations. Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009) 27 (citing Summers, 555 U.S. at 494-95). Plaintiffs here have already been injured by site-specific 28 action. PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 24 Washington, DC 20036--2243 (202) 797-5233

Case 2:18-cv-00733-JLR Document 17 Filed 10/29/18 Page 30 of 30

1 CERTIFICATE OF SERVICE 2 I hereby certify that on October 29, 2018, I electronically filed the foregoing 3 PLAINTIFFS’ OPPOSITION TO MOTION TO DISMISS with the Clerk of the Court 4 5 using the CM/ECF system, which will send notification of this filing to the attorneys of

6 record and all registered participants. 7

8 /s/Anna Sewell Anna Sewell 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO Earthjustice MOTION TO DISMISS 1625 Massachusetts Ave., N.W., Suite 702 (CASE NO. 2:18-cv-00733-JLR) - 25 Washington, DC 20036--2243 (202) 797-5233