COMPLAINT for DECLARATORY and INJUNCTIVE RELIEF Susan
Total Page:16
File Type:pdf, Size:1020Kb
1 Susan Jane M. Brown (WSB #31224, OSB #05460) Western Environmental Law Center 2 4107 NE Couch St. 3 Portland, OR. 97232 Ph. 503-914-1323 4 [email protected] 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 NORTH CASCADES CONSERVATION Civ. Case No. 11-CV-666 10 COUNCIL, PILCHUCK AUDUBON 11 SOCIETY, nonprofit organizations; and WILLIAM (BILL) M. LIDER, an individual, 12 COMPLAINT FOR DECLARATORY Plaintiffs, AND INJUNCTIVE RELIEF 13 14 vs. (National Environmental Policy Act, 15 FEDERAL HIGHWAY ADMINISTRATION, National Forest Management Act, Safe, an agency of the United States Department of Accountable, Flexible, Efficient 16 Transportation; the WESTERN FEDERAL Transportation Equity Act: A Legacy for 17 LANDS HIGHWAY DIVISION, a subdivision Users (SAFETEA-LU); and of the Federal Highway Administration; the Administrative Procedure Act) 18 UNITED STATES FOREST SERVICE, an agency of the United States Department of 19 Agriculture, 20 Defendants. 21 22 23 24 25 26 27 28 PAGE 1 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 INTRODUCTION 2 1. This is a civil action for declaratory and injunctive relief under the Administrative 3 Procedure Act (APA), 5 U.S.C. §§ 551-706. The claims arise from Defendants’ violations of the 4 National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370(d), and its implementing 5 regulations, 40 C.F.R. § 1500 et seq.; the National Forest Management Act (NFMA), 16 U.S.C. § 6 1600 et seq., and its implementing regulations, 36 C.F.R. §§ 219.1-219.29 (1982); and Safe, 7 Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA- 8 LU), 23 U.S.C. § 101 et seq. and its implementing regulations. This action is brought pursuant 9 to the right of review provision of the Administrative Procedure Act (APA), 5 U.S.C. § 702. 10 2. Plaintiffs North Cascades Conservation Council, Pilchuck Audubon Society, and William 11 (Bill) M. Lider (Plaintiffs) allege that the Defendants Federal Highway Administration (FHWA), 12 an agency of the United States Department of Transportation; the Western Federal Lands 13 Highway Division (WFLHD), a subdivision of the Federal Highway Administration; and the 14 United States Forest Service, violated federal law in its preparation of the Suiattle River Road 15 Emergency Repairs Project (Suiattle River Road Project), located on the Mt. Baker-Snoqualmie 16 National Forest in Washington State. 17 3. Plaintiffs challenge the failure of Defendants to comply with the Record of Decision on 18 Management of Habitat for Late-Successional and Old-Growth Forest Related Species within the 19 Range of the Northern Spotted Owl (Northwest Forest Plan, or NFP) and the Mt. Baker- 20 Snoqualmie National Forest Land and Resource Management Plan (LRMP) in its planning and 21 implementation of the Suiattle River Road Project. 22 4. Plaintiffs also challenge Defendant’s failure to meet its procedural duties required by 23 NEPA by failing to prepare an environmental assessment (EA) or environmental impact 24 statement (EIS) for the Suiattle River Road Project. 25 5. Plaintiffs seek an order: 26 a. Declaring that Defendants violated NFMA and the APA by failing to comply with 27 the Mt. Baker-Snoqualmie National Forest LRMP, Northwest Forest Plan, and their associated 28 Records of Decision when it planned and implemented the Suiattle River Road Project; PAGE 2 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 b. Declaring that Defendants failed to comply with NEPA, NFMA, SAFETEA-LU, 2 and the APA when it prepared the Suiattle River Road Project Categorical Exclusion; 3 c. Enjoining Defendants and their contractors, agents, etc. from undertaking any 4 activities related to the Suiattle River Road Project, unless and until Defendants have complied 5 with NFMA, NEPA, SAFETEA-LU, and the APA; 6 d. Awarding Plaintiffs their reasonable attorneys fees and costs incurred in this 7 action pursuant to the EAJA, 28 U.S.C. § 2412; and 8 e. Granting Plaintiffs such additional and further relief as the Court deems just and 9 equitable. 10 6. The requested relief is necessary to preserve the status quo, to prevent illegal agency 11 action, and to forestall irreparable injury to the environment. 12 JURISDICTION, VENUE, AND BASIS FOR RELIEF 13 7. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 (federal question), 2201 14 (injunctive relief), 2202 (declaratory relief), and 28 U.S.C. § 1346 (United States as a defendant). 15 8. This cause of action arises under the laws of the United States, including the 16 Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq.; the National Environmental 17 Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; the National Forest Management Act (NFMA) 16 18 U.S.C. § 1600 et seq.; and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: 19 A Legacy for Users (SAFETEA-LU), 23 U.S.C. § 101 et seq.. 20 9. An actual, justiciable controversy exists between Plaintiffs and Defendants. The 21 requested relief is proper under 28 U.S.C. §§ 2201 & 2202, and 5 U.S.C. §§ 705 & 706. 22 10. The claims arose from a decision implemented on the Mt. Baker-Snoqualmie National 23 Forest, in Snohomish County. Venue is properly vested in this Court by 28 U.S.C. § 1391(e) and 24 Local Rule 5(e). 25 11. If Plaintiffs prevail, Plaintiffs will seek an award of costs and fees, including attorneys’ 26 fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. 27 PARTIES 28 12. Plaintiff NORTH CASCADES CONSERVATION COUNCIL (NCCC), a 501(c)(3) PAGE 3 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 locally-based member- and donation-supported organization, was founded in 1957 “to protect 2 and preserve the North Cascades’ scenic, scientific, recreational, education and wilderness 3 values.” Over more than fifty years, the organization has played a part in many successful 4 wildlands protection campaigns in the region, and continues to monitor conditions in these 5 extensive public lands, and work towards their protection and restoration. NCCC represents 6 approximately 350 members in Washington and the United States. 7 13. Plaintiff PILCHUCK AUDUBON SOCIETY (PAS) represents approximately 1,000 8 members in the north Puget Sound region of Washington State. PAS’ mission is to conserve and 9 restore natural ecosystems focusing on birds and other wildlife for the benefit of the earth’s 10 biological diversity. PAS has worked to protect local forests and other wild lands since 1970. 11 PAS members use the Mt. Baker-Snoqualmie National Forest and surrounding public lands for 12 various forms of passive recreation including bird and other wildlife-watching; hiking; climbing; 13 camping; gathering berries, mushrooms, and medicinal plants; and spiritual renewal. 14 14. Members of the Plaintiff organizations visit and enjoy the forests of the Mt. Baker- 15 Snoqualmie National Forest, including the Suiattle River Road Project area for educational, 16 recreational, and scientific activities, including hiking, camping, photography, and observing 17 wildlife. Plaintiffs would sustain injury to their interests if the Suiattle River Road Project is 18 implemented in the absence of a legally and scientifically sufficient analysis of the project’s 19 environmental impacts. The interests of Plaintiffs and their members would sustain further 20 injury because the project will degrade water quality, diminish aesthetic value, and harm fish and 21 wildlife in and around the project area. 22 15. Plaintiff WILLIAM M. (BILL) LIDER has resided continuously in Snohomish County, 23 Washington for over 32 years, and has been active in national forest issues for nearly 30 years. 24 Bill is a frequent user of the national forests and has hiked and backed extensively in the 25 Darrington Ranger District, including the Suiattle River watershed. Mr. Lider received a 26 Bachelor of Science degree in Environmental Resources Engineering from Humboldt State 27 University, Arcata, CA in 1976. He became a professional civil engineer in Washington in 1984 28 and a Certified Erosion and Sediment Control Lead (CESCL) in 1998. For the last 20 years he PAGE 4 – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 has specialized in storm water design including water quality and flow control for large 2 municipal projects. Mr. Lider is certified by WSDOT to prepare Hydraulic Reports and has 3 prepared drainage reports for King County and Snohomish County. He has had many years 4 experience in the design and construction of roads and transportation systems, and has assisted 5 with the survey of forest roads for the United States Forest Service. 6 16. Defendant FEDERAL HIGHWAY ADMINISTRATION (FHWA) is an agency of the 7 United Stats Department of Transportation that supports State and local governments in the 8 design, construction, and maintenance of the Nation’s highway system (Federal Aid Highway 9 Program) and various federally and tribal owned lands (Federal Lands Highway Program). 10 17. Defendant WESTERN FEDERAL LANDS HIGHWAY DIVISION (WFLHD) operates 11 as part of the Federal Lands Highway Program, serving the needs of Oregon, Washington, Idaho, 12 Montana, Alaska, and the Yellowstone and Grand Teton National Parks in Wyoming. WFLHD 13 actively administers the surveying, designing and constructing of forest highway system roads, 14 parkways and park roads, Indian reservation roads, defense access roads, and other Federal lands 15 roads. 16 18. Defendant UNITED STATES FOREST SERVICE is a federal agency within the United 17 States Department of Agriculture. Defendant is, by law, responsible for the management policies 18 and actions undertaken with respect to the public lands. By statutory authority, and the agency’s 19 own regulations, Defendant is also responsible for implementing NFMA, NEPA, and other land 20 management laws and regulations pertaining to actions and decisions on lands administered by 21 Defendant.