FILED
NOT FOR PUBLICATION OCT 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
COOK INLETKEEPER; SIERRA CLUB; No. 13-35101
ALASKA SURVIVAL,
D.C. No. 3:12-cv-00205-RRB
Plaintiffs - Appellants,
v. MEMORANDUM*
UNITED STATES ARMY CORPS OF
ENGINEERS; THOMAS P. BOSTICK,
Commander and Chief of Engineers, U.S.
Army Corps of Engineers;
CHRISTOPHER D. LESTOCHI, Colonel,
District Commander, U.S. Army Corps of
Engineers, Alaska District,
Defendants - Appellees,
and ,
ALASKA RAILROAD CORPORATION;
MATANUSKA SUSITNA BOROUGH,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Alaska
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted August 15, 2013
Anchorage, Alaska
Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.
Plaintiffs-Appellants Cook Inletkeeper, Sierra Club, and Alaska Survival
(collectively, “Inletkeeper”) appeal from the District Court’s order denying their
motion for a preliminary injunction enjoining construction of the Port MacKenzie
Rail Extension. Reviewing the District Court’s order for abuse of discretion, we
affirm.
1. The District Court did not abuse its discretion in concluding that
Inletkeeper was not likely to succeed on its claim that the United States Army
Corps of Engineers (“Corps”) erred in issuing a § 404 permit because a less
environmentally damaging practicable alternative was available—namely the
construction of elevated rail over part or all of the wetlands traversed by the
project. We previously held in Alaska Survival v. Surface Transportation Board,
705 F.3d 1073, 1088 (9th Cir. 2013), that the elevated rail alternative could
reasonably be deemed infeasible for National Environmental Protection Act
(“NEPA”) purposes. That conclusion makes it exceedingly unlikely that it was
unreasonable for the Corps to deem this alternative impracticable under the Clean
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Water Act (“CWA”). Further, the record supports the determination that the Corps
reasonably concluded, after consultation with Alaska Railroad Corporation
(“Railroad”), that the elevated rail alternative would significantly raise project
costs and introduce new logistical problems, and that the Corps did not blindly
accept the Railroad’s representations of cost and logistics.
2. The District Court also did not abuse its discretion in denying the
preliminary injunction as to the other issues raised, because irreparable harm is
unlikely. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132-35
(9th Cir. 2011) (discussing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
19-24 (2008)).
Inletkeeper did not show irreparable harm, in the absence of an interim
injunction, resulting from its claim that the Corps did not calculate properly the
amount of compensatory mitigation. Inletkeeper alleges faults with the functional
assessment analysis upon which this calculation was based, including the exclusion
of the water quality and wetland plant diversity functions from that assessment.
Inletkeeper has not faulted the data collection performed by the Railroad’s
contractor, which gathered information on all of the relevant variables, including
the water quality and wetland plant diversity functions; instead, it challenges the
way in which that data was analyzed. If Inletkeeper ultimately were to succeed on
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this claim, the analysis could be redone, and the Railroad could be required to
purchase additional compensatory mitigation credits, fully remedying the harm.1
Similarly, it was not an abuse of discretion for the District Court to conclude
that the chance of irreparable harm based on Inletkeeper’s claim that the Corps
failed to consider properly the impact on the wetlands outside of the project’s
footprints is small. The Corps assessed the impact outside the project footprint and
imposed special conditions in the § 404 permit requiring the incorporation of
culverts and bridges that would maintain “natural wetland drainage and inundation
patterns” and would not interfere with fish passage. The Corps reasonably
determined that such culverts and buildings can be effective in maintaining
wetland hydrology, and the record supports the conclusion that the surrounding
wetlands will be sufficiently benefitted by those conditions to avoid irreparable
harm while this case is pending.
AFFIRMED.
1
We take the Corps’ and the Railroad’s statements at argument that the
record does contain data collected about the functional capacities in 2008 and
2010, including data regarding the two functions that were excluded from the
functional assessment analysis, as representing that the data still available is
sufficient to redo the functional assessment categorization entirely and properly if
Inletkeeper ultimately were to prevail on this claim.
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