Two similar dock cases, two very different outcomes
A tale of two docks. In a recent Oregon case, Northwest Environmental Defense Center v. National Marine Fisheries Service, No. CV 08-939-MO, 2009 WL 2486039 (D. Or., Aug. 12, 2009), the U.S. Army Corps and NOAA Fisheries won a complete victory, successfully defending a biological opinion and its analysis of the impacts of the City of Oswego's dock demolition and replacement project. In a fact-intensive case, the Court's deferential analysis upheld the Federal agencies actions on seven different Endangered Species Act claims. The very next day, the Federal Defendants did not fare quite as well in Preserve Our Island v. U.S. Army Corps, No. C08-1353RSM, 2009 WL 2511953 (W.D.Wash., Aug. 13, 2009), a case involving issuance of a permit for the construction of a barge-loading facility on the eastern shore of Maury Island, an is-land in Puget Sound located within King County, Washington. Ultimately, the Court determined that the informal consultation process resulted in the arbitrary and capricious issuance of "no adverse effect" determinations "in the face of scientific evidence in the record which suggests specific and serious effects" on Chinook and Southern Resident Killer Whales. "The Court finds that the Corps violated the plain meaning and intent of Section 7(a)(2) of the ESA by ignoring or disregarding evidence that would require formal consultation with the Service." KEITHINKING: The first case was a dispute over whether the agency "did it right," ultimately turning on the degree of judicial deference. In comparison, the second case was a dispute over whether an agency "did it at all," with the final outcome reflecting the lack of support in the administrative record.