Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 1 of 6 Page ID#: 1. Of Attorneys for Plaintiff, Thompson Metal Fab, Inc.

Transcription

1 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 1 of 6 Page ID#: 1 Jill S. Gelineau, OSB # igelineau@schwabe.com Carson Bowler, OSB # cbowlerschwabe.com Schwabe, Williamson & Wyatt, P.C. Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR Telephone Fax Of Attorneys for Plaintiff, Thompson Metal Fab, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION THOMPSON METAL FAB, INC., vs. Plaintiff, UNITED STATES DEPARTMENT OF TRANSPORTATION, and Its Secretary in his official capacity; THE FEDERAL HIGHWAY ADMINISTRATION, and Its Administrator in his official capacity; THE FEDERAL TRANSIT ADMINISTRATION, and Its Administrator in his official capacity, COMPLAINT No. Administrative Procedure Act (5 U.S.C ); National Environmental Policy Act (42 U.S.C et seq.) Declarative and Injunctive Relief Requested Defendants. I. INTRODUCTION This is a civil action for declaratory and injunctive relief arising under the Administrative Procedure Act ("APA"), 5 U.S.C. S et seq., and alleging violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C et seq., Page 1 of 6 -- COMPLAINT

2 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 2 of 6 Page ID#: 2 and its implementing regulations. 2. Plaintiff challenges violations of NEPA in connection with Defendants decision to authorize, fund, and otherwise advance construction of the Interstate 5 Columbia River Crossing Project, which proposes constructing a new interstate bridge to cross the Columbia River, connecting Clark County, Washington, and Multnomah County, Oregon. NEPA is a federal law requiring agencies that receive federal funding to evaluate different categories of impacts that a proposed project may have on the natural and human environment. 3. Defendants have failed to comply with the requirements of NEPA. Defendants actions are arbitrary, capricious, an abuse of discretion, and are not in accordance with law under Section 706(2)(A) of the APA. 4. Plaintiff seeks a declaratory judgment and injunctive relief to remedy the violations complained of herein and ensure compliance with the requirements of NEPA. Plaintiff also seeks an award of costs, including attorney s and expert witness fees, pursuant to the Equal Access to Justice Act, 28 U.S.C II. JURISDICTION 5. This Court has jurisdiction pursuant to 28 U.S.C. 1331, because this action involves the United States as a defendant, and it arises under the laws of the United States, including the APA and NEPA. An actual, justiciable controversy exists between Plaintiff and Defendants. The requested relief is proper under 28 U.S.C and 2202, and 5 U.S.C. 705 and 706. III. VENUE 6. Venue is proper in this Court pursuant to 28 U.S.C. 1391(e). Plaintiffs place of business is located within this District and no real property is involved in the action. A substantial part of the events or omissions giving rise to the federal claim herein occurred within this District. Page 2 of 6 -- COMPLAINT

3 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 3 of 6 Page ID#: 3 IV. PARTIES 7. Plaintiff, Thompson Metal Fab, Inc., is an Oregon corporation registered to do business in the states of Oregon and Washington. Plaintiff produces large metal structures from a location in Vancouver, Washington, upstream of the proposed Columbia River Crossing. Since 1974, Plaintiff has transported fabricated structures by barge on the navigable waters of the Columbia River in the geographic area near the Columbia River Crossing, which structures require between a minimum of 90 and a maximum of 160 feet of vertical clearance above the surface water level of the Columbia River. 9. Plaintiff has a continuing interest in the viability of the Columbia River for navigation and for the socioeconomic health of the region. For more than 35 years, Plaintiff has used the navigable waters of the Columbia River in the geographic area near the Columbia River Crossing as an integral component of its business operation, and its use of the Columbia River will be substantially and adversely affected by the Columbia River Crossing design approved in the Defendants Record of Decision. 10. Defendant Federal Highway Administration ("FHWA") is a federal agency within the United States Department of Transportation ("DOT"). FHWA supports state and local governments in the design, construction, and maintenance of the United States highway system, which includes Interstate 5. FHWA was responsible for overseeing the preparation of the NEPA documents challenged in this action. 11. On December 7, 2011, FHWA signed the Record of Decision that approved the design of the Columbia River Crossing. 12. The approval of the Record of Decision was duly authorized "final agency action" under the APA. 13. Defendant Federal Transit Administration ("FTA") is a federal agency within the United States Department of Transportation. The FTA provides federal financial assistance for urban mass transportation, including the Columbia River Crossing Page 3 of 6-- COMPLAINT

4 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 4 of 6 Page ID#: 4 Project. The FTA was also responsible for overseeing the preparation of the NEPA documents challenged in this action. V. STATEMENT OF THE CASE Administrative Procedure Act 14. Judicial review of federal agency action is governed by the Administrative Procedure Act, 5 U.S.C. 551 et seq. The APA confers a right of judicial review on any person that is adversely affected by agency action. 5 U.S.C The APA provides that the reviewing court "shall... hold unlawful and set aside agency action, findings, or conclusions found to be [] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" or "without observance of procedure required by law." 5 U.S.C. 706(2)(A) & (D). 15. Defendants actions in preparing and approving NEPA documents and issuing a Record of Decision are final "agency actions" subject to judicial review under the APA. National Environmental Policy Act 16. NEPA requires agencies to prepare an Environmental Impact Statement ("EIS") before undertaking a major federal action that will significantly affect the quality of the human environment. 42 U.S.C. 4332(2)(C). 17. NEPA requires that every EIS be prepared with objective good faith and must fully and fairly discuss the adverse effects of the proposed action and the alternatives to the proposed action which may avoid or minimize these adverse effects. 42 U.S.C. 4332(2)(C) & (E). 18. Pursuant to NEPA, Defendants prepared a Draft EIS for the Interstate 5 Columbia River Crossing Project in In September 2011, Defendants prepared a Final Environmental Impact Statement ("FETS"). On December 7, 2011, FHWA approved and signed a Record of Decision for the Columbia River Crossing Project. On January 5, 2012, FHWA, FTA and DOT published notice in the Federal Register that any Page 4 of 6-- COMPLAINT

5 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 5 of 6 Page ID#: 5 claims related to agencies "final agency action" must be filed on or before July 3, The NEPA documents for the Columbia River Crossing Project failed to account adequately for the social, environmental and economic impacts to users of the Columbia River, and in particular, impacts to navigable waters, including: failing to account for or provide mitigation for impacts on users of the Columbia River such as Plaintiff resulting from the Columbia River Crossing Project; inadequately assessing and/or accounting for the navigational hazards caused by the vertical limitations on the Columbia River Crossing design; failing to properly consider design alternatives including alternatives that would allow limited and short-term bridge lift options to account for known user activity; failing to properly consider changes in traffic and use of the navigable waters in the vicinity of the Project for the lifetime of the Project; and inadequately assessing and/or accounting for changes to surface water elevations affecting navigation due to climate change and/or other factors. 20. The NEPA documents for the Columbia River Crossing Project also inadequately assessed and/or accounted for the impacts that the Project will have on maintenance and enhancement of long-term productivity. The proposed Columbia River Crossing design will also cause significant adverse socioeconomic impacts to the community and marine contractors, including Plaintiff, which were not adequately addressed in the NEPA process. 21. The adverse impacts from the proposed Columbia River Crossing Project will result in irreparable harm to Plaintiff. FIRST CLAIM FOR RELIEF Violation of the National Environmental Policy Act 22. The above paragraphs are incorporated herein by reference. 23. The EIS, and Record of Decision based on the EIS, failed to account for significant adverse impacts on navigation and on the navigable waters of the Columbia River. The final agency action of approving the Record of Decision was arbitrary, Page 5 of 6 -- COMPLAINT

6 Case 3:12-cv HZ Document 1 Filed 07/02/12 Page 6 of 6 Page ID#: 6 capricious, an abuse of discretion, and otherwise not in accordance with law. 24. Plaintiff is entitled to a declaration that the NEPA documents upon which Defendants relied in approving the Columbia River Crossing were inadequate under the APA and NEPA, and is also entitled to an injunction preventing the authorization, funding, or otherwise advancing construction, of the Columbia River Crossing Project unless and until such deficiencies are addressed and/or cured. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court: A. Enter a declaratory judgment that the Defendants have violated the National Environmental Policy Act by failing to prepare an adequate Environmental Impact Statement for the Columbia River Crossing Project. B. Vacate the December 7, 2011 Record of Decision for the Columbia River Crossing Project. C. Enter appropriate injunctive relief to ensure that Defendants comply with the National Environmental Policy Act, and specifically to ensure that Defendants take no further actions toward proceeding with the Columbia River Crossing, including to advertise, award, permit, construct, or otherwise commit resources to the Project, until they have prepared an EIS in compliance with NEPA. D. Award Plaintiff the costs of this action, including reasonable attorney s fees and expert witness fees. E. Grant such other and further relief as the Court may deem just and proper. Dated this 2 nd day of July, SCHWABE, WILLIAMSON & WYATT, P.C. By: I /C J Jill /Gelineau, OSB Carson Bowler, OSB Attorneys for Plaintiff Page 6 of 6 -- COMPLAINT

7 Case 3:12-cv HZ Document 1-1 Filed 07/02/12 Page 1 of 1 Page ID#: 7 JS 44 (Rev. 09/11) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SI/li INSTRUCTIoNS ON N/I VT TA(;/i Ol TillS 1011/cl.) I. (a) PLAINTIFFS THOMPSON METAL FAB, INC. (b) County of Residence of First Listed Plaintiff Multnomah (IiX( 1/PT/NI/N PL4IN1Il 7, C ASli.S3 DEFENDANTS U.S. DEPT. OF TRANSPORTATION, and Its Secretary; THE FEDERAL HIGHWAY ADMINISTRATION, and Its Administrator; THE FEDERAL TRANSIT ADMINISTRATION, and Its Administrator County of Residence of First Listed Defendant NOTE: (IN U.S. PLAINT//F CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. ( Attorneys (I;irnr Name, Address, and Telephone Numbei Jill elineau and Carson Bowler, Schwabe, Wilamson & Wyatt P.C., 1211 SW Fifth Ave., Sts , Portland Oregon (503) II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. I U.S. Government Plaintiff 0 3 Federal Question (U.S. Goi ernrnent Not a Party) Attorneys (If Knowi) L1!1LElNSHtP OF PRINCIPAL PARtIES (P/ace an "X"in One doxf)rl /arniif/,l (/ or Dnr er.snty Oases- Only) and One Box for Defendant) PTF DEF PTF DEE Citizen of This State 0 I 0 I Incorporated or Principal Place of Business In This Stale 2 U.S. Government n 4 Diversity Defendant (Indicate t. rtizen.shijr of Parlle.s in item ill) Citizen of Another State Incorporated and Principal Place of Business In Another State Citizen or Subject of Foreign Nation IV NATURF OF SIIIT (lii, an "Y" On, Rn, On/ 0 I CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES I 110 Insurance PERSONAL INJURY PERSONAL INJURY L1 625 Drug Related Seizure Appeal 28 USC False Claims Act 120 Marine Airplane 365 Personal Injury - of Properly 21 USC Withdrawal State Reapportionment 130 Miller Act Airplane Product Product Liability Other 28 USC Antitrust Negotiable Instrument Liability Health Care! Banks and Banking 0 ISO Recovery of Overpayment Assault, Libel & Phaaceu rm tical PROPERTY RIGHTS Commerce & Enforcement of Judgmeni Slander Personal Injury Copyrights Deportation Medicare Act Federal Employers Product Liability Patent Racketeer Influenced and Recovery of Defaulted Liability Asbestos Personal Trademark Corrupt Organizations Student Loans Marine Injury Product Consumer Credit (Excl. Veterans) Marine Product Liability LABOR SOCIAL SECURITY Cl 490 Cable/Sat TV Recovery of Overpayment Liability PERSONAL PROPERTY Fair Labor Standards HIA (1395ff) Secarities/Cornmodities/ of Veteran s Benefits Motor Vehicle Oilier Fraud Act Black Lung (923) Exchange Stockholders Suits Motor Vehicle Truth in Lending Labor/Mgmt. Relations DIWC/DIWW (405(g)) Oilier Statutory Actions Oilier Contract Product Liability Oilier Personal Railway Labor Act SSID Title XVI Agricultural Acts Contract Product Liability Oilier Personal Properly Damage Family and Medical RSI (405(g)) Environmental Matters Franchise Injury Property Damage Leave Act Freedorri of Information Personal Injury - Product Liability Oilier Labor Litigation Act I Med. Malpractice Eirrpl. Ret. Inc Arbitration REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS Administrative Procedure Land Condemnation Other Civil Rights Motions to Vacate Taxes (U.S. Plaintiff Act/Review or Appeal of Foreclosure Voting Sentence or Defendant) Agency Decision Rent Lease & Ejectment Employment Habeas Corpus: IRS--Third Party Constitutionality of Toils to Land Housing! General 26 USC 7609 State Statutes Tort Product Liability Accommodations Death Penalty IMMIGRATION All Other Real Property Amer. w/disabiliiies Mandamus & Oilier Naturalization Application Enrsploynieiri Civil Rights Habeas Corpus Amer. w/disabiliiies Prison Condition Alien Detainee Oilier Civil Detainee - (Prisoner Petition) Education Conditions of Oilier Imrrimgrainoii Confinement Actions V. ORIGIN (P/ace an "X" in One Box Only) l ransferred from I Original 1 2 Removed from Remanded from n 4 Reinstated or n 5 another district Multtdtstrmct Proceeding State Court Appellate Court Reopened (ipeciil) Litigation Cite the U.S. Civil Statute under which you are filing (Do not citejnrtistiiction,al.s/alutes u,,icws diversity): 5 U.S.C Vt. CAUSE OF ACTION Brief description of cause: National Environmental Policy Act ("NEPA") challenge, 42 U.S.C et seq VII. REQUESTED IN 171 CHECK IF THIS IS A CLASS ACTION DEMANDS CHUCK YES only if demanded in complaint: COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 171 Yes 2No VIII. RELATED CASE(S) IF ANY (See m,soaciion.i. JUDGE DATE SIGNATURE OAYtOR Ty F ECORD 07/02/2012 / / --- DOCKET NUMBER RECEIPT 6 AMOUNT APPLYING IFP JUDGE MAG. JUDGE

8 Case 3:12-cv HZ Document 1-2 Filed 07/02/12 Page 1 of 2 Page ID#: 8 Jill S. Gelineau, OSB # jgelineauschwabe,com Carson Bowler, OSB # cbowler@schwabe.com Schwabe, Williamson & Wyatt, P.C. Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR Telephone Fax Of Attorneys for Plaintiff, Thompson Metal Fab, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION THOMPSON METAL FAB, INC., No. Plaintiff, VS. UNITED STATES DEPARTMENT OF TRANSPORTATION, and Its Secretary in his official capacity; THE FEDERAL HIGHWAY ADMINISTRATION, and Its Administrator in his official capacity; THE FEDERAL TRANSIT ADMINISTRATION, and Its Administrator in his official capacity, PLAINTIFF THOMPSON METAL FAB, INC. S CORPORATE DISCLOSURE STATEMENT Defendants. Pursuant to Fed. R. Civ. P 7. 1, Plaintiff Thompson Metal Fab, Inc. discloses that it is not owned by any parent corporation and no publicly held corporation owns stock in Thompson Metal Fab, Inc. Page 1 - PLAINTIFF THOMPSON METAL FAB, INC. S CORPORATE DISCLOSURE STATEMENT 1211 SW 5th Ave, Suite 1900 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law Pacwest Center Portland, OR Telephone 503, Fax

9 Case 3:12-cv HZ Document 1-2 Filed 07/02/12 Page 2 of 2 Page ID#: 9 Dated this 2nd day of July, Respectfully submitted, SCUWABE, WILLIAMSON & WYATT, P.C. By:, Ji Jill S. GeliIeau, OSB Carson Botvler, OSB Attorneys for Plaintiff Page 2 PLAINTIFF THOMPSON METAL FAB, [NC. S Attorneys at Law Pacwest Center CORPORATE DISCLOSURE STATEMENT 1211 SW 5th Ave., Suite 1900 Portland, OR SCHWABE, WILLIAMSON & WYATT, P.C. Telephone Fax