Case 1:19-cv-00118-CWD Document 50 Filed 03/19/20 Page 1 of 48
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`
`
`Erika E. Malmen, Bar No. 6185
`EMalmen@perkinscoie.com
`Robert A. Maynard, Bar No. 5537
`RMaynard@perkinscoie.com
`Kaycee M. Royer, Bar No. 10810
`KRoyer@perkinscoie.com
`PERKINS COIE LLP
`1111 West Jefferson Street, Suite 500
`Boise, ID 83702-5391
`Telephone: 208.343.3434
`Facsimile: 208.343.3232
`Attorneys for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
`
`Case No. 1:19-CV-0118-CWD
`
`SECOND AMENDED COMPLAINT
`
`SAWTOOTH MOUNTAIN RANCH LLC,
`LYNN ARNONE, and DAVID BOREN,
`Plaintiffs,
`
`v.
`UNITED STATES OF AMERICA;
`UNITED STATES DEPARTMENT OF
`AGRICULTURE; SONNY PERDUE,
`Secretary of Agriculture; UNITED
`STATES FOREST SERVICE;
`SAWTOOTH NATIONAL FOREST; JIM
`DEMAAGD, Forest Supervisor;
`SAWTOOTH NATIONAL
`RECREATION AREA; KIRK
`FLANNIGAN, Area Ranger; FEDERAL
`HIGHWAY ADMINISTRATION,
`Defendants.
`
`I.
`
`INTRODUCTION AND NATURE OF ACTION
`
`The Plaintiffs, Sawtooth Mountain Ranch LLC, David Boren, and Lynn Arnone,
`1.
`ask this Court to quiet title to a conservation easement as described herein, acquired by the
`United States in 2005, administered by the U.S. Forest Service, and which traverses the private
`property of the Plaintiffs. Defendant Forest Service has published a Decision Memo authorizing
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`the Federal Highway Administration’s construction of a highly developed, two-lane, 6.5-foot-
`wide commuter trail (“Trail”) pursuant to a 2005 Conservation Easement Deed (“Conservation
`Deed”) granted to the United States, which includes a provision granting limited public access
`(“Easement”) across identified portions of the Plaintiffs’ property.
`
`As further alleged and described herein, the Trail as proposed violates various
`2.
`provisions in the Conservation Deed (which includes the Easement) in at least two ways—first,
`constructing a 6.5’ wide developed Trail exceeds the scope and allowable uses of the Easement,
`which are limited to public access for “snowmobile, snow grooming equipment, bicycle, horse,
`and foot travel,” and which does not authorize any ground disturbance (with the one exception
`for placement of signs) or otherwise provide for construction of a developed trail; and, second,
`the Trail as proposed violates the Conservation Deed’s purpose of conserving the unique scenic
`values and ranching heritage of the area in accordance with the Sawtooth National Recreation
`Area Act. Plaintiffs seek declaratory relief under the Quiet Title Act, 28 U.S.C. § 2409a
`(“QTA”), to establish their rights under the Conservation Deed.
`
`The Plaintiffs also seek declaratory and injunctive relief requiring Defendant
`3.
`United States Forest Service, Defendant Jim DeMaagd, Defendant Sawtooth National Recreation
`Area, and Defendant Kirk Flannigan (collectively the “Forest Service”) to comply with
`applicable law while managing the Sawtooth National Recreation Area in relation to the Trail.
`As further alleged and described herein, the Forest Service’s and Defendant Federal Highway
`Administration’s (“FHA”) actions in approving and implementing the Decision Memo
`authorizing construction of the Redfish to Stanley Trail, which includes the Trail as proposed
`across portions of Plaintiffs’ private property, are unlawful for violating, in various ways, the
`Sawtooth National Recreation Area Act, 16 U.S.C. §§ 460aa through 460aa-14 (“SNRA Act”);
`the National Forest Management Act, 16 U.S.C. §§ 1600-1614 (“NFMA”); the National
`Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”); the Endangered Species Act,
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`16 U.S.C. §§ 1531-1544 (“ESA”); the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”); and
`the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”).
`
`II.
`J Jurisdiction is proper in this Court under 28 U.S.C. § 1331 (federal question),
`
`JURISDICTION AND VENUE
`
`4.
`
`28 U.S.C. § 1346 (when the United States is a defendant), the APA, 28 U.S.C. § 2201
`
`(declaratory judgment), 28 U.S.C. § 2202 (injunctive relief), and 28 U.S.C. § 2409a and
`
`28 U.S.C. § 1346(f) (Quiet Title Act), as the case involves the Plaintiffs’ request to quiet title to
`
`confirm and limit the scope of the Easement granted to the United States and challenge
`
`Defendants’ actions as unlawful under various federal statutes.
`
`Venue is proper in this Court under 28 U.S.C. § 1391(e) because the Conservation
`5.
`Deed, Easement and Trail at issue involve land within Custer County, Idaho, and the U.S. Forest
`Service issued its Decision Memo for the Redfish to Stanley Trail from the Area Ranger’s office
`in Ketchum, Blaine County, Idaho. The contract executed by the United States Department of
`Transportation, Federal Highway Administration contracting officer Dean A. Umathum for the
`construction of the Trail concerns real property located within Custer County, Idaho.
`
`III.
`
`PARTIES
`
`Plaintiff Sawtooth Mountain Ranch LLC is an Idaho Limited Liability Company
`6.
`formed and operated in accordance with Title 30, chapters 21 and 25, Idaho Code (the “Ranch”).
`The Certificate of Organization for the Ranch was filed with the Idaho Secretary of State on
`October 24, 2016. The Ranch holds title to the real property at issue in this action, as well as
`various personal property, livestock, fixtures, grazing rights, and other interests associated with a
`livestock ranching operation conducted on the approximately 1781.07 acres in Custer County,
`Idaho (the “Property”).
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`Plaintiff David Boren is an individual residing in Boise, Idaho. Mr. Boren is the
`7.
`organizer and sole member of Sawtooth Mountain Ranch LLC. Mr. Boren oversees and is
`involved in the daily operations of the Ranch. Mr. Boren has been the point of contact for the
`Ranch with the SNRA and Forest Service personnel involving Ranch operations, use/enjoyment
`of the Ranch property, compliance with the SNRA Act, and the Trail at issue herein. Mr. Boren
`is married to Plaintiff Lynn Arnone.
`
`Plaintiff Lynn Arnone is an individual residing in Boise, Idaho, and married to
`8.
`Plaintiff David Boren. Ms. Arnone is familiar with Ranch operations and spends meaningful
`time on the property at issue owned by the Ranch, but Ms. Arnone does not possess an
`ownership interest in the Ranch.
`
`Defendant United States of America owns legal title to the Conservation Deed
`9.
`and Easement, which traverses the Plaintiffs’ Property and is at issue herein.
`
`Defendant United States Department of Agriculture (“USDA”) is an agency
`10.
`within the United States executive branch that oversees food, agriculture, natural resources, rural
`development, nutrition, and related issues.
`
`Defendant Sonny Perdue is the Secretary of the United States Department of
`11.
`Agriculture. Secretary Perdue has the ultimate authority for the procedures, actions, and
`decisions of the Department of Agriculture. He is sued solely in his official capacity.
`
`Defendant United States Forest Service is a federal agency within the United
`12.
`States Department of Agriculture. The Forest Service is charged with administering and
`overseeing United States National Forest System lands in accordance with applicable law.
`
`Defendant Sawtooth National Forest is a subunit of the United States Forest
`13.
`Service comprised of approximately 2.1 million acres of land located in south central Idaho and
`northern Utah. The Forest’s main office is located in Jerome, Idaho.
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`Defendant Jim DeMaagd is the Forest Supervisor for the Sawtooth National
`14.
`Forest. He is the supervisor for the Forest and has ultimate authority for the procedures, actions
`and decisions of the Forest and is charged with ensuring the Forest complies with applicable law.
`He is sued solely in his official capacity.
`
`Defendant Sawtooth National Recreation Area (“SNRA”) is a subunit of the
`15.
`Sawtooth National Forest. The SNRA contains approximately 756,000 acres, including more
`than 20,000 acres of private property as well as roughly 375,855 acres of Congressionally-
`designated wilderness in the Sawtooth, Hemingway-Boulders, and Cecil D. Andrus-White
`Clouds Wilderness Areas. The SNRA’s main office is located in Ketchum, Idaho.
`
`Defendant Kirk Flannigan is the SNRA Area Ranger. He is the supervisor for the
`16.
`SNRA and has ultimate authority for the procedures, actions, and decisions of the SNRA and is
`ultimately charged with ensuring the SNRA complies with applicable law. Mr. Flannigan signed
`the Decision Memo and has direct involvement in and oversight of all aspects of the Trail. He is
`sued solely in his official capacity.
`
`Defendant Federal Highway Administration is a federal agency within the United
`17.
`States Department of Transportation. The Federal Highway Administration is responsible for
`helping State and local governments in the design, construction, and maintenance of the Nation’s
`highway system and various federally owned lands. The Federal Highway Administration is in
`charge of the construction of the Trail at issue herein.
`
`IV.
`
`LEGAL FRAMEWORK
`
`a.
`
`Quiet Title Act
`
`The Quiet Title Act, 28 U.S.C. § 2409a, allows Plaintiffs to file a civil action
`18.
`against the United States to “adjudicate a disputed title to real property in which the United
`States claims an interest.”
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`b.
`
`Environmental Statutes
`
`i.
`
`Sawtooth National Recreational Area Act
`
`The SNRA Act was passed as Public Law 92-400 on August 22, 1972, and is
`19.
`codified at 16 U.S.C. §§ 460aa through 460aa-14. The SNRA Act’s general purpose is “to
`assure the preservation and protection of the natural, scenic, historic, pastoral, and fish and
`wildlife values and to provide for the enhancement of the recreational values associated
`therewith….” 16 U.S.C. § 460aa.
`
`The SNRA Act requires the USDA Secretary to “administer the recreation area in
`20.
`accordance with the laws, rules and regulations applicable to the national forests in such manner
`as will best provide … the conservation and development of scenic, natural, historic, pastoral,
`wildlife, and other values, contributing to and available for public recreation and enjoyment,
`including the preservation of sites associated with and typifying the economic and social history
`of the American West….” 16 U.S.C. § 460aa-1(a).
`
`The SNRA Act allows the USDA Secretary to utilize condemnation proceedings
`21.
`without the consent of the owner only when all reasonable efforts to acquire such lands or
`interests therein by negotiation have failed and condemnation is reasonably necessary to
`accomplish the objectives of the SNRA. 16 U.S.C. § 460aa-2(c). Additionally, the Act provides
`that no privately owned lands shall be acquired unless the Secretary determines that such lands
`are being used, or are in imminent danger of being used, in a manner incompatible with the
`regulations established pursuant to the SNRA Act. Id. at § 460aa-3(b).
`
`One of Congress’ goals in passing the SNRA Act was to preserve the ranching
`22.
`heritage in the Stanley area. The Senate Conference Report states that “it is generally agreed that
`ranching, for example, is compatible with and, in fact, beneficial to the general setting of the
`recreation area. Numerous ranching operations depend upon this area for summer and fall
`forage….” S. Rep. 92-797, 92nd Cong. (1972). The USDA’s Supplemental Statement on the
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`legislation designating the SNRA indicates that livestock grazing is one of the unique visual
`aspects of the region. Id. “Travelers on U.S. Highway 93 view the jagged and imposing peaks
`of the Sawtooth Range across meadows on which sheep and cattle graze and on which an
`occasional rustic ranch house can be seen in the distance.” Id. It goes on to state that the
`“authentic ranching atmosphere of the area can be preserved and would add to the enjoyment of
`visitors from the outside.” Id.
`
`Congress wished to limit the change to the general landscape of the area,
`23.
`especially the areas readily visible from travel corridors. The Senate Report notes that “[t]he
`beauty and western ranching character of the lands … is being encroached upon in increasing
`measure by subdivision and development of the meadows and fields immediately adjacent to the
`highway.” Id. It goes on to warn against developing roads and recreational developments that
`would result in changes in the scenic environment. Id. It was advised that construction that
`“would mar or block the scenery” be avoided to “take greater advantage of the natural beauty of
`the area.” Id.
`
`ii.
`
`National Forest Management Act
`
`NFMA provides the statutory framework for management of the National Forest
`24.
`System lands. 16 U.S.C. § 1604. The “National Forest System consists of units of federally
`owned forest, range, and related lands throughout the United States … [and] include[s] lands,
`waters, or interests … which are administered by the Forest Service.” 16 U.S.C. § 1609(a).
`
`NFMA requires each Forest to prepare and revise a Land and Resource
`25.
`Management Plan (“Forest Plan”). 16 U.S.C. § 1604. A Forest Plan lays out broad guidelines
`to advance numerous goals and objectives, including to “insure consideration of the economic
`and environmental aspects of various systems of renewable resource management, including the
`related systems of silviculture and protection of forest resources, to provide for outdoor
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`recreation (including wilderness), range, timber, watershed, wildlife, and fish….” Id. at
`(g)(3)(A).
`
`Resource plans and permits, contracts, and other instruments for the use and
`26.
`occupancy of National Forest System lands shall be consistent with the land management plans.
`16 U.S.C. 1604(i).
`
`The Sawtooth Forest Plan (“SFP”) is the governing Forest Plan for the area at
`27.
`issue. The SFP is strategic and programmatic in nature and does not make commitments to
`selection or specifications of any particular project or daily activities. It identifies objectives,
`standards and guidelines to govern specific activities which are applied in more detailed project-
`level or site-specific planning. Any project-level decisions must be consistent with the overall
`Sawtooth National Forest Plan.1
`
`iii.
`
`National Environmental Policy Act
`
`NEPA represents “our basic national charter for protection of the environment.”
`28.
`40 C.F.R. § 1500.1. NEPA’s protections of the “environment” refer to the “human environment”
`which “shall be interpreted comprehensively to include the natural and physical environment and
`the relationship of people with that environment.” 40 C.F.R. § 1508.14. Among its numerous
`purposes, NEPA procedures are designed to foster informed, transparent agency decision-making
`built upon informed public participation.
`
`Each agency undertaking a major federal action must comply with NEPA.
`29.
`40 C.F.R. § 1502.4. “Major federal action includes actions with effects that may be major and
`which are potentially subject to Federal control and responsibilities.” 40 C.F.R. § 1508.18. This
`includes any “projects and programs entirely or partly financed, assisted, conducted, regulated,
`or approved by federal agencies.” 40 C.F.R. § 1508.18(a).
`
`
`1 https://www.fs.usda.gov/detail/sawtooth/landmanagement/planning/?cid=stelprdb5391896.
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`One of the first steps in the NEPA process is to define the proper scope of
`30.
`environmental review for the proposed project. When defining the scope of NEPA review,
`federal agencies should consider three types of actions, three types of alternatives, and three
`types of impacts.
`
`Actions that are connected, cumulative, or similar, as those terms are defined in
`31.
`40 C.F.R. § 1508.25, should be considered in conjunction with the proposed project, in order to
`avoid dividing a project into multiple actions, each of which individually may have insignificant
`impacts, but which collectively may have a substantial impact.
`
`Actions are connected when they: (i) automatically trigger other actions which
`32.
`may require environmental impact statements; (ii) cannot or will not proceed unless other actions
`are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and
`depend on the larger action for their justification. 40 C.F.R. § 1508.25(a).
`
`Cumulative actions are those that, when viewed with other proposed actions, have
`33.
`cumulatively significant impacts and should therefore be discussed in the same impact statement.
`40 C.F.R. § 1508.25(b).
`
`Similar actions are actions with similarities that provide a basis for evaluating
`34.
`their environmental consequences together. Commonalities may include timing or geography.
`An agency should analyze these actions together when it is the best way to assess adequately the
`combined impacts of similar actions or reasonable alternatives to such actions. 40 C.F.R.
`§ 1508.25(c).
`
`Cumulative impact (somewhat confusingly, NEPA requires consideration of both
`35.
`cumulative actions and cumulative impacts) is the impact on the environment that results from
`the incremental impact of the action when added to other past, present, and reasonably
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`foreseeable future actions regardless of what agency or person undertakes that action. 40 C.F.R.
`§ 1508.7.
`
`NEPA’s primary procedural mechanism is an “environmental impact statement”
`36.
`(“EIS”), which must be prepared in advance of and circulated for public input on a proposed
`action that might “significantly affect[] the quality of the human environment….” 42 U.S.C.
`§ 4332(C). A less-stringent mechanism, an “environmental assessment” (“EA”), can be used to
`determine if an EIS is needed or aid in the agency’s compliance with NEPA when no EIS is
`necessary. 40 C.F.R. § 1508.9(a)(2). At the lowest level of NEPA procedure is the “categorical
`exclusion” (“CE”). A CE allows for “a category of actions which do not individually or
`cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4.
`
`NEPA regulations encourage agencies to “as necessary adopt procedures to
`37.
`supplement these regulations.” 40 C.F.R. § 1507.3(a). Any agency-promulgated regulations
`“shall comply with [Council for Environmental Quality] regulations.” 40 C.F.R. § 1507.3(b).
`Both the Forest Service and the FHA have adopted their own NEPA regulations and CEs. See 36
`C.F.R. 220; 23 C.F.R. § 771.
`
`c.
`
`Forest Service NEPA Categorical Exclusion
`
`Under Forest Service regulations, CEs are available only for actions that are
`38.
`considered routine and that do not raise any concerns about resource conditions— somewhat
`misleadingly referred to as “extraordinary circumstances” under NEPA. To utilize a CE under
`the Forest Service NEPA regulations, the agency must show (1) that the action falls within an
`established CE and (2) that there are no resource condition concerns indicating that
`“extraordinary circumstances” exist related to the action. 36 C.F.R. § 220.6.
`
`Resource conditions that must be considered include “(i) Federally listed
`39.
`threatened or endangered species or designated critical habitat, species proposed for Federal
`listing or proposed critical habitat, or Forest Service sensitive species; (ii) Flood plains, wetlands,
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`or municipal watersheds; [and] (iii) Congressionally designated areas, such as wilderness,
`wilderness study areas, or national recreation areas….” Id.
`
`The Forest Service must determine whether there exists a cause-effect relationship
`40.
`between a proposed action and the potential effect on these resource conditions, and if such a
`relationship exists, the degree of the potential effect on the resource condition, to determine
`whether an extraordinary circumstance exists. Id.
`
`d.
`
`Federal Highway Administration NEPA Categorical Exclusion
`
`Under the FHA Regulations, CEs are allowed for “actions that …, based on
`41.
`[FHA’s] past experience with similar actions, do not involve significant environmental impacts.”
`23 C.F.R. § 771.117(a). These actions “are actions that: Do not induce significant impacts to
`planned growth or land use for the area; do not require the relocation of significant numbers of
`people; do not have a significant impact on any natural, cultural, recreational, historic, or other
`resource; do not involve significant air, noise, or water quality impacts; do not have significant
`impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any
`significant environmental impacts.” Id.
`
`Examples of unusual circumstances that require the FHA to undertake additional
`42.
`environmental studies to the determine if a CE classification is proper include: “(1) Significant
`environmental impacts; (2) Substantial controversy on environmental grounds; (3) Significant
`impact on properties protected by Section 4(f) requirements or Section 106 of the National
`Historic Preservation Act; or (4) Inconsistencies with any Federal, State, or local law,
`requirement or administrative determination relating to the environmental aspects of the action.”
`23 C.F.R. § 771.117(b).
`
`Actions that may meet the criteria for an FHA CE include the “construction of
`43.
`bicycle and pedestrian lanes, paths, and facilities.” 23 C.F.R. § 771.117(c)(3).
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`e.
`
`Endangered Species Act
`
`Congress passed the ESA in 1973 to “conserve to the extent practicable the
`44.
`various species of fish or wildlife and plants facing extinction” and the habitats upon which they
`depend. 16 U.S.C. §§ 1531, 1533(a)(3). The ESA establishes the framework for, among other
`things, listing/designating a species as threatened or endangered, designation of critical habitat
`for listed species, formulation and adoption of recovery plans, cooperation with states,
`consultation on proposed federal actions to determine whether the action “may affect” listed
`species or its critical habitat (commonly referred to as “section 7 consultation” under section
`7(a)(2)), prohibitions on “take” of endangered species (section 9), and safe harbor
`agreements/habitat conservation plans (section 10).
`
`The U.S. Fish and Wildlife Service (“USFWS”) and the National Marine
`45.
`Fisheries Service (“NMFS”) (collectively the “Service”) have primary responsibility for ESA
`section 7 consultation depending on the listed species involved. USFWS is responsible for
`terrestrial and freshwater species and NMFS is responsible for marine species and anadromous
`fish.
`
`Section 4 of the ESA establishes that a species may be listed as either
`46.
`“threatened” or “endangered” depending upon its current likelihood of extinction. 16 U.S.C. §
`1533(a). Section 9 prohibits the unpermitted “take” of any endangered species of fish or
`wildlife. 16 U.S.C. § 1538(a)(1)(B). The term “take” means to “harass, harm, pursue, hunt,
`shoot, wound, kill, trap, capture, or collect, or to attempt to engaged in any such conduct.” 16
`U.S.C. § 1532(19). The term “harm” includes “significant habitat modification or degradation
`where it actually kills or injures wildlife by significantly impairing essential behavioral patterns,
`including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
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`Concurrent with a listing, the Service must designate “critical habitat.” 16 U.S.C.
`47.
`§ 1533(3)(A)(i). Such habitat comprises those occupied areas containing the physical or
`biological features essential to the species’ conservation. See 16 U.S.C. § 1532(5)(A)(i).
`
`In order to prevent take and assist with species’ survival and recovery, federal
`48.
`agencies are required to complete section 7 consultation for any actions that may affect a listed
`species or its critical habitat.
`
`Section 7(a)(1) requires federal agencies to utilize their authorities in furtherance
`49.
`of the purposes of the ESA by carrying out programs for the conservation of endangered species
`and threatened species.
`
`Section 7(a)(2) requires federal agencies to ensure that any agency action is not
`50.
`likely to jeopardize the continued existence of any endangered species or threatened species or
`result in the destruction or adverse modification of critical habitat of such species. In fulfilling
`the requirements of Section 7(a)(2), federal agencies are required to use the best scientific and
`commercial data available.
`
`Section 7 and the requirements outlined in 50 C.F.R. Part 402 apply to federal
`51.
`actions where there is discretionary federal involvement or control. 50 C.F.R. § 402.03.
`
`Under Section 7 each federal agency shall confer with the Service on any action
`52.
`that is likely to jeopardize the continued existence of any proposed species or result in the
`destruction or adverse modification of proposed critical habitat—a section 7 conference. Id.
`§ 402.10(a). This conference assists the federal agency in identifying and resolving potential
`conflicts at an early stage in the process.
`
`An agency contemplating action shall initiate the Section 7 conference with the
`53.
`Service to determine whether any listed species or critical habitat may be present in the area of
`such proposed action. Id. § 402.10(b). Conclusions reached during a Section 7 conference and
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`any recommendations shall be documented by the Service and provided to the federal action
`agency. Id. § 402.10(e).
`
`If a listed species or critical habitat is present in the area of a proposed action, the
`54.
`action agency is required to prepare a biological assessment that evaluates the potential effects of
`the action on listed species and designated critical habitat to determine whether any such species
`or habitat is likely to be adversely affected by the action. Id. § 402.12(a).
`
`The biological assessment shall be completed before any contract for construction
`55.
`is entered into and before construction begins. Id. § 402.12(b)(2).
`
`The action agency must submit the completed biological assessment to the
`56.
`Service for review. The Service will respond in writing within 30 days as to whether it concurs
`with the findings of the biological assessment. Id. § 402.12(j).
`
`If the Service determines in writing that the proposed action is not likely to
`57.
`adversely affect listed species or critical habitat, then the consultation process is terminated. If
`the Service determines the action may adversely affect a listed species or critical habitat, then
`formal Section 7 consultation must occur.
`
`The Salmon River, Little Redfish Creek, and their tributaries are listed as critical
`58.
`habitat for a variety of aquatic ESA-listed species including the Upper Columbia River bull trout,
`the Snake River spring/summer Chinook salmon, Snake River sockeye salmon, and the Snake
`River Basin steelhead.
`
`The Upper Columbia River bull trout is listed as a threatened species under the
`59.
`ESA. Critical habitat extends to the bankfull, i.e., the ordinary high-water mark. The USFWS
`recommends consultation when activities adjacent to critical habitat have an impact on the
`waters designated as critical habitat, such as soil disturbance or vegetation removal. Endangered
`
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`and Threatened Wildlife and Plants, 75 Fed. Reg 63898, 63901, 63906 (Oct. 10, 2010) (codified
`at 50 C.F.R. Part 17).
`
`Snake River spring/summer Chinook salmon, Snake River sockeye salmon, and
`60.
`Snake River Basin steelhead are listed as threatened species under the ESA. Designated critical
`habitat for the Chinook salmon, sockeye salmon, and steelhead extends to the ordinary high
`water mark. 70 Fed. Reg. 52630-01, 52666 (Sept. 2, 2005). It is the practice of NMFS to
`recommend consultation when activities are within 300 feet of the ordinary high water mark in
`order to determine whether the activity will impact adjacent riparian zones important to the
`survival and recovery of the species and protection of its habitat. 70 Fed. Reg. 52630-01, 52666;
`See 65 Fed. Reg. 7764-01, 7768 (Feb. 16, 2000).
`
`f.
`
`Clean Water Act
`
`The CWA, passed in 1972, establishes the basic structure for regulating pollutant
`61.
`discharges into “waters of the United States” (sometimes referred to as “jurisdictional waters”).
`See 33 U.S.C. § 1251. It gives the Environmental Protection Agency and the U.S. Army Corps
`of Engineers (“Corps”) joint authority to promulgate rules, issue permits, and enforce the
`provisions of the CWA.
`
`The CWA makes it unlawful for any person to discharge any pollutant from a
`62.
`point source into navigable waters without a permit.
`
`Section 404 of the Clean Water Act requires federal agencies that plan to
`63.
`discharge dredged or fill material into waters of the United States, including wetlands, to first
`obtain a permit from the Corps. See 33 U.S.C. § 1344.
`
`The basic premise of Section 404 is that no discharge of dredged or fill material
`64.
`may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic
`environment or (2) the nation’s waters would be significantly degraded.
`
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`To determine whether an area is a “waters of the United States” subject to the
`65.
`Corps’ jurisdiction, the Corps will issue either a “jurisdictional determination” or a “preliminary
`jurisdictional determination.”
`
`If the Corps issues a preliminary jurisdictional determination and the permittee
`66.
`begins work in an area deemed jurisdictional, then any right to challenge the jurisdictional
`determination at a later time will be waived.
`
`Once a jurisdictional determination has been made and the Corps determines that
`67.
`work is to take place in a waters of the United States, then the federal agency must obtain either
`an individual permit or apply for coverage under a nationwide permit.
`
`An individual permit is required for potentially significant impacts or projects that
`68.
`do not qualify for a general, or nationwide, permit.
`
`A nationwide permits (“NWP”) is issued for a particular category of activities.
`69.
`This permitting process eliminates individual review and allows certain activities to proceed on
`an expedited basis, provided that the general or specific conditions for the permit are met.
`
`An activity is authorized under an NWP only if that activity and the permittee
`70.
`satisfy all of the NWP’s terms and conditions. 33 C.F.R. § 330.1(c). Activities that do not
`qualify under an NWP still may be authorized under an individual or regional general permit. Id.
`
`Failing to comply with the terms of a permit is a violation of federal law. 33
`71.
`U.S.C. § 1344(s).
`
`NWP 42 allows for the discharge of dredged or fill material into non-tidal waters
`72.
`of the United States for the construction or expansion of recreational facilities.
`
`Dischar