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Slpr, LLC, et al v. United States Army Corps of Engineers

May 2, 2011

SLPR, LLC, ET AL.,
PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, AND UNITED STATES FOURTH
NAVY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING DEFENDANT NAVY'S RENEWED AMENDED MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT ON CAUSE OF ACTION , [Doc. Nos. 251, 287]

Now before the Court are cross motions for summary judgment on the fourth cause of action. For the reasons stated below, the Court GRANTS Defendant Navy's renewed amended motion for summary judgment and DENIES Plaintiffs' cross-motion for summary judgment on the fourth cause of action.

I. BACKGROUND

Plaintiffs SLPR, LLC, the Sewall Family Trust, and the Goodfellow Family Trust (hereinafter "Plaintiffs") own homes on the bayside of First Street in Coronado, which is adjacent to the Naval Air Station North Island (hereinafter "North Island" or "NASNI"). Plaintiffs' fourth cause of action contends that the Defendant Navy violated the Administrative Procedures Act ("APA") by dredging San Diego Bay in a manner that caused or exacerbated erosion along their shoreline properties. Third Am. Compl. ("TAC") ¶¶ 94-101.*fn1 The Navy has homeported three aircraft carriers on North Island since World War II. At the outset, the aircraft carriers were conventionally powered. Various dredging operations were performed over the years, but these motions concern the Navy's dredging activities in 1997/1998 and in 2002. See Pls.' Ex. EE & Fig. 6-1(USA-006045); Def.'s Ex. 17 (USA-063511 to 063541). Those projects were necessary when the Navy replaced the older carriers with the much larger nuclear-powered aircraft carriers.

1995 Environmental Impact Statement ("1995 EIS")

When Congress decided in 1993 to close several military bases and relocate functions to existing bases, the Navy made plans to homeport NIMITZ-class nuclear aircraft carriers on North Island. The Navy recognized that several NIMITZ carriers might be homeported in San Diego in the future, but the 1995 EIS evaluated the impact of one permanent carrier (and one visiting). Def.'s Ex. F at 1-2 to 1-4 (USA-005509 to 005511).

The Bay was then -42 MLLW deep.*fn2 The deep draft of the NIMITZ carriers required dredging to provide a 50-foot water depth at the berths and in the Turning Basin, but -55 MLLW in the main Navigation Channel. Id.; Binder 8 (USA-005511, 005558, & Fig. 2-7).*fn3 The Navy anticipated it would dredge over 9 million cubic yards of material. Binder 8 (USA-005542 & 005545).

The Navy studied the potential environmental impact of dredging San Diego Bay in order to homeport these deep-draft carriers. The EIS specifically identified the issue of "potential erosional damage to existing properties on First Street as a result of dredging." Id. (USA-005530).

The Navy concluded that the shoreline was "not expected to be affected by the deepening of the turning basin" because it was protected by the Navy's quaywall. Def.'s Ex. F at 4.1-7 (USA-005795). "The shoreline east of the turning basin along First Street is not expected to be affected" for two reasons. First, "[t]he dredging of the turning basin will not extend beyond the eastern end of the existing quaywall." Id.. Second, the "relatively shallow dredging" is "not expected to change the existing patterns of currents and other hydrodynamic conditions," therefore, "the stability of sediments along the shoreline east of the turning basis is not expected to be affected." Id.

The Navy used a "two-dimensional hydrodynamic computer model" to investigate the "potential impact of dredging on bay circulation." Id. at 4.1-34 (USA-005821). The model predicted "changes in the water current speed and sediment transport rates between existing bathymetric conditions" and those that "would exist after" dredging. Id. The model concluded that both current speeds and sediment transport would be reduced. Id. at 4.1-35 (USA-005822).

The Navy designed and implemented mitigation measures on shallow water habitats "to avoid erosion from tidal processes, wave characteristics, and storm upwellings." Id. at 4.4-1 (USA-005965). By contrast, the Navy did not anticipate erosion due to dredging; consequently, the Navy determined that no other mitigation measures were necessary. Id.

On December 13, 1995, the Navy issued its Record of Decision. Def.'s Ex. H (USA-012131 to 012138).

Pursuant to the Coastal Zone Management Act ("CZMA"), the Navy submitted its consistency determination to the California Coastal Commission, and that state agency concurred. Def.'s Exs. A & B.

The Navy began this dredging project in August 1997 and completed it in 1998.

1999 Environmental Impact Statement ("1999 EIS")

As had been anticipated, NASNI soon became the homeport for additional nuclear carriers. The 1999 EIS studied the impact of homeporting two additional nuclear carriers, for a total of three in San Diego. Def.'s Exs. L § 2.3.3.1 (USA-014147 to 014151), O (USA-019426); see Pls.' Ex. DD at 2 (USA-063652). The two new deep-draft carriers would be replacing two conventionally-powered carriers, thus much of the work related to construction at the berthing facilities.

The 1999 EIS analyzed the potential environmental impacts including dredging, and found "significant but mitigable impacts on marine biological resources" (such as eelgrass and birds); however, "[a]ll other environmental impacts . . . would be less than significant." Def.'s Ex. L (Abstract at USA-219) (USA-014077).

The Navy planned to dredge 8 additional feet to a -50 feet MLLW in one berthing area, which amounted to approximately 582,500 cubic yards of material.*fn4 Id. (§ 2.3.3.1 at USA-235) (USA-014147); see Pl.'s Ex. O (USA-045741 to 045745) (discussing changes at existing pier). This 18-acre area is located on the north end of Coronado Island at existing Pier J/K. No further dredging was required to alter the berth along the quaywall (or the Turning Basin and Navigation Channel) because that area already accommodated a visiting nuclear carrier (and the first homeported nuclear vessel). Pls.' Ex. O (USA-045745) (discussing berth L); Def.'s Ex. 34 (USA-04936).

The Navy concluded that the environmental impact of dredging on topography, geology, soils, terrestrial hydrology, water quality, sediment quality, and many other resources was "not significant." Pls.' Ex. O (Alternative 2 in Table 2-11) (USA-045776 to 045781). As Plaintiffs observe, the 1999 EIS considered, very briefly, the impact of dredging on shoreline erosion. See Pls.' Exs. O & Y; see Binder 24 (USA-014201 to 14203) (impact on topography and geological environment includes erosion process, and discussing "depositional disruptions"). The Navy concluded that the additional dredging, which "would primarily occur within previously dredged areas," would impact only "the immediate vicinity" and "would be less than significant." Pls.' Ex. AA (USA-045991 to 045992); Binder 24 (USA-014202 to 014207) (concluding "impacts on geological resources due to dredging are less than significant" because dredging would be done in area of previous dredging).

Because the impact of the proposed dredging was "less than significant," the Navy was not required to propose mitigation measures (such as erosion barriers).

The Navy issued its Record of Decision on January 30, 1999. Def.'s Ex. 35; 74 Fed. Reg. 6140.

The Navy provided its consistency determination to the California Coastal Commission, and the agency concurred. Def.'s Exs. K (USA-013367) & I (USA-012355).

In July 2000, the Navy received permission from the ACOE to "dredge an estimated 582,500 cubic yards of material from an existing depth of -42 MLLW to a desired depth of -50 feet MLLW over an approximate 18 acre site." Pls.' Ex. P (USA-019536); id. at 7 (USA-019542) ("No dredging is authorized in any other location under this permit.").

The dredging was conducted in 2002. 2008 Supplemental Environmental Impact Statement ("2008 SEIS")

In October 2007, the Navy announced it would supplement the 1999 EIS "to analyze the effectiveness of the existing traffic mitigation measure" when all three carriers were simultaneously at North Island. 72 Fed. Reg. 59084 (Oct. 18, 2007); Pls.' Ex. DD at 3 (USA-063653). While the initial focus of the 2008 SEIS was traffic, another primary concern was shoreline erosion along First Street. Def.'s Ex. P at ES-2 (USA-280). Plaintiffs and others submitted comments about erosion due to dredging and wakes from ships, and the Navy responded by comparing current and past erosion conditions. Id. at § 1.8.1 (USA-282 to 283); id. at 2.6.3 (USA-286); see also Def.'s Ex. 21 (Congresswoman Susan Davis encouraged the Navy to consider whether dredging the Turning Basin to accommodate aircraft carriers contributed to shoreline erosion along First Street).

Chapter 5 of the 2008 SEIS contains the Navy's analysis of the Plaintiffs' concerns. Def.'s Ex. Q. The Navy concluded that the erosion "along First Street is a result of natural conditions and historical alterations to the bay." Id. § 5.5 (USA-300).

Specifically, the Navy evaluated the Coronado Shoreline Report.*fn5 Def.'s Ex. Q § 5.3. The Navy discounted the weight because the ACOE relied on aerial photography and its abbreviated analysis was "not to be taken as comprehensive." Def.'s Ex. Q § 5.3 (USA-299). "Rather, the report[ was] conducted as superficial appraisals of the shoreline for the purpose of determining Federal Interest in shoreline protection and equally as important, recreational land improvements. The breadth of research and depth of analysis was understandably well below USACE standards for technical analysis because [it was] not intended as such." Id.

Instead, the Navy considered the "sediment budget" a more important factor. The diversion of the San Diego River between 1876 and 1937 accounted for the direct loss of sediment to the Coronado shoreline. Id. (USA-298). The Navy concluded that the "effects of these alterations were masked along First Street because between 1929 and 1985, artificial fill was placed along the shoreline in quantities and frequencies sufficient to 'grow' the shoreline bayward by as much as 90 feet." Id. (USA-299). The Navy concluded that when the Coronado Shoreline Report stated that 1.7 feet of shoreline was eroding each year, it referred to the artificial shoreline that had been created. Id. (USA-299 to 300); Def.'s Ex. R (color maps and illustrations).

Though the Navy did not study "the general erosive effects of boat wakes," it acknowledged that boat wakes contribute to erosion in the same manner as "natural wave action." Def.'s Ex. Q at § 5.4 (USA-299). The Navy found that its aircraft carriers were "responsible for only 0.02 percent of total annual ship, boat, and vessel movements in San Diego Bay." Id. Moreover, the large carriers moved slowly, and the speed of the vessel determines the size of the wake. Id. "Aircraft carrier movements; therefore, are not a substantial source of boat-generated waves in San Diego Bay." Id.

In particular, the Navy could not operate the NIMITZ carriers in the area South of the Turning Basin, which is across from the First Street homes. Instead, the Navy used tug-boats to turn the deep-draft carriers into their docks. Id. (USA-300). "In normal conditions, tug movements do not stir up sediment or create substantial wakes." Id.

The Navy bolstered its conclusion by citing the 2008 SPAWAR study of currents in the area South of the Turning Basin. Id.; Def.'s Ex. S. Pei-Fang Wang and Ken Ricther prepared the SPAWAR study, entitled "Altered Tidal Flow Field in San Diego Bay, South of North Island, as a Result of Dredging in the North Island Turning Basin," for the specific purpose of examining the effects of the Navy's dredging activity. Def.'s Ex. S (USA-333). This technical report measured the speed and direction of the current at various depths and in various tidal conditions. Sediment samples were taken to conservatively "estimate transport potential of the near-shore currents." Id. (USA-343). The study compared its data with that collected before the Turning Basin was dredged to -50 MLLW. and concluded that "post-dredge currents are not faster than pre-dredge currents taken in the vicinity." Id. (USA-345). "A modeling study confirmed the observation that deepening the turning basis would not result in higher current speeds" along First Street. Id. (USA-352) The Navy relied on the study to conclude that "the First Street area is not appreciably affected by dredging." Def.'s Ex. Q § 5.5 (USA-300).

The Navy also based its conclusion on the presence and population of eelgrass along First Street. Id.

The Navy published its Record of Decision on January 30, 2009.

II. STATUTE OF LIMITATIONS

The Navy argues that Plaintiffs' fourth claim is barred by the six year statute of limitations. 28 U.S.C. § 2401(a); Wind River Mining Corp. v. United States, 946 F.2d 710, 712-13 (9th Cir. 1991); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988). The Navy argues the limitations period began to run on the 1995 EIS on December 13, 1995 when the Navy published its Record of Decision in the Federal Register. Wind River, 946 F.2d at 713-16; Pub. Citizen v. Nuclear Regulatory Comm'n, 901 F.2d 147, 153 (D.C. Cir. 1990). Similarly, the clock started on the 1999 EIS when the Navy issued its Record of Decision in January 1999. Yet Plaintiffs sued the Federal Defendants more than six years later.*fn6

The Navy ignores the Plaintiffs' valid argument that the limitations period was reopened when the Navy reviewed and reiterated its prior decision in the 2008 SEIS proceedings. Courts have consistently held that the statute of limitations does not bar review of agency actions that reopen a previously decided issue when the agency reaches the same decision at a subsequent proceeding. Bluewater Network v. EPA, 370 F.3d 1, 16-17 (D.C. Cir. 2004); Edison Elec. Inst. v. EPA, 996 F.2d 326, 332 (D.C. Cir. 1993); Pub. Citizen, 901 F.2d at 150; Manitoba v. Salazar, 691 F. Supp. 2d 37, 49 (D.D.C. 2010). Agency reconsideration may be either explicit or implicit. Pub. Citizen, 901 F.2d at 150. The agency's stated purpose is not determinative because the court may infer from the entire record that the agency implicitly reopened a previously decided issue. Bluewater Network, 370 F.3d at 16 (whether the agency reopened an issue depends on the entire context, including the agency's reactions and proposals, and "not just the agency's stated intent") (internal quotations and citations omitted); Pub. Citizen, 901 F.2d at 151-52 (when agency's action "necessarily raises" the lawfulness of an earlier action, review of the earlier action is not time barred) (citation and quotation omitted). Courts examine whether the agency proposed a change; whether the agency called for comments on the issue; whether the agency explained the unchanged portions of its decision; and whether the agency responded to a comment aimed at the previously decided issue. Pub. Citizen, 901 F.2d at 150. If the agency explicitly or implicitly reconsiders an issue, the time period to challenge it "would start afresh." Id.

Plaintiffs' challenge to the 2008 SEIS is timely. A central purpose of the 2008 SEIS was to address the Plaintiffs' concerns that dredging was causing erosion under their homes. Plaintiffs correctly observe that the 2008 EIS expressly and explicitly reopened the First Street erosion issue from the 1999 EIS. Pls.' Ex. 0 (Executive Summary of 2008 SEIS states "the purpose of this document is to supplement the impact analyses contained in the 1999 FEIS"); Def.'s Ex. 34 at 3 (Record of Decision states 2008 SEIS "was prepared for the limited purpose of supplementing the 1999 FEIS and the 2000 ROD with current circumstances and information" including "shoreline erosion along First Street in the City of Coronado, California."). The Navy undertook the 2008 review process "in response to Plaintiffs' allegations in this lawsuit," and re-examined whether the dredging of its turning basin caused shoreline erosion along First Street. Def.'s Opening Br. at 2. The Navy solicited comments from the homeowners, responded to their comments, and then reached the same decision that the dredging was not causing erosion along First Street. Def.'s Ex. 34 at 3 ("The 2008 Final SEIS does not propose any changes to the Proposed Action analyzed in the 1999 FEIS."); Edison Elec., 996 F.2d at 332 (agency reopened issue by soliciting comments and proposing reconsideration). The Navy put its earlier analysis "in play" by offering new studies and explanations for its prior finding. Bluewater Network, 370 F.3d at 17. Thus, Plaintiffs attack on the underlying findings in the 1999 EIS of theimpact of dredging on shoreline erosion is not barred by the statute of limitations. Id. at 16-17.

While the Navy explicitly reconsidered the 1999 EIS, the Court finds that it implicitly reopened the shoreline erosion issue in the 1995 EIS. The entire context of the Navy's 2008 SEIS proceedings shows that it explicitly reconsidered its analysis of the erosion problem and responded to Plaintiffs' comments on the subject. Edison Elec., 996 F.2d at 332; Pub. Citizen, 901 F.2d at 150-51. Whereas the 1999 EIS only briefly and generally discussed erosion, the 1995 EIS identified the issue of erosion on First Street where Plaintiffs own homes. Binder 8 (USA-005530). The 1999 EIS and the 2008 EIS both rely extensively on documents prepared for the 1995 EIS. Manitoba, 691 F. Supp. 2d at 49 ("court may examine prior agency action on which the validity of the later agency action under review depends") (internal quotations and citations omitted). Moreover, when the Navy prepared the 1995 EIS it knew that additional nuclear aircraft carriers would be stationed at North Island in the future, thereby anticipating that the subject would arise again. It did. A few short months after the extensive dredging operation to accommodate the first carrier, the Navy revisited the same issues to homeport more nuclear carriers. Finally, the 1995 EIS authorized the largest of the two dredging projects at issue, that is, the dredging of the Turning Basin and central Navigation Channel to remove over 9 million cubic yards of material. See Pls.' Ex. EE (USA-006049) (Table 6-2). The Navy could not study the effect of dredging on Plaintiffs' property in the 2008 SIES without considering that massive project. Pub. Citizen, 901 F.2d 151-52. The Navy substantively reexamined and then reaffirmed its original decision, thus, it is not too late to challenge the findings upon which its actions depend.*fn7 Manitoba, 691 F. Supp. 2d at 49.

Accordingly, the Court rejects the statute of ...


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