Case 3:12-cv-01175-HZ Document 1 Filed 07/02/12 Page 1 of 6 Page ID#: 1 Jill S. Gelineau, OSB #852088 Email igelineau@schwabe.com Carson Bowler, OSB #951830 Email cbowlerschwabe.com Schwabe, Williamson & Wyatt, P.C. Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone 503.222.9981 Fax 503.796.2900 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. 701-706); National Environmental Policy Act (42 U.S.C. 4321 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 701-706 et seq., and alleging violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., Page 1 of 6 -- COMPLAINT
Case 3:12-cv-01175-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. 2412. 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. 2201 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
Case 3:12-cv-01175-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
Case 3:12-cv-01175-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. 702. 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 2008. 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
Case 3:12-cv-01175-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, 2012. 19. 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
Case 3:12-cv-01175-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, 2012. SCHWABE, WILLIAMSON & WYATT, P.C. By: I /C J Jill /Gelineau, OSB 852088 Carson Bowler, OSB 951830 Attorneys for Plaintiff Page 6 of 6 -- COMPLAINT
Case 3:12-cv-01175-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 1500 --2000, Portland Oregon (503) 222-9981 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 0 4 0 4 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 0 2 0 2 Incorporated and Principal Place 0 5 0 5 of Business In Another State Citizen or Subject of 0 3 0 3 Foreign Nation 0 6 0 6 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 0 422 Appeal 28 USC 158 0 375 False Claims Act 120 Marine 0 310 Airplane 365 Personal Injury - of Properly 21 USC 881 0 423 Withdrawal 0 400 State Reapportionment 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 0 410 Antitrust 0 140 Negotiable Instrument Liability 0 367 Health Care! 0 430 Banks and Banking 0 ISO Recovery of Overpayment 0 320 Assault, Libel & Phaaceu rm tical PROPERTY RIGHTS 0 450 Commerce & Enforcement of Judgmeni Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicare Act 0 330 Federal Employers Product Liability 0 830 Patent 0 470 Racketeer Influenced and 0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark Corrupt Organizations Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit (Excl. Veterans) 0 345 Marine Product Liability LABOR SOCIAL SECURITY Cl 490 Cable/Sat TV 0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (1395ff) 0 850 Secarities/Cornmodities/ of Veteran s Benefits 0 350 Motor Vehicle 0 370 Oilier Fraud Act 0 862 Black Lung (923) Exchange 0 160 Stockholders Suits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 0 890 Oilier Statutory Actions 0 190 Oilier Contract Product Liability 0 380 Oilier Personal 0 740 Railway Labor Act 0 864 SSID Title XVI 0 891 Agricultural Acts 0 195 Contract Product Liability 0 360 Oilier Personal Properly Damage 0 751 Family and Medical 0 865 RSI (405(g)) 0 893 Environmental Matters 0 196 Franchise Injury 0 385 Property Damage Leave Act 0 895 Freedorri of Information 0 362 Personal Injury - Product Liability 0 790 Oilier Labor Litigation Act I Med. Malpractice 0 791 Eirrpl. Ret. Inc. 0 896 Arbitration REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS 9 899 Administrative Procedure 0 210 Land Condemnation 0 440 Other Civil Rights 0 510 Motions to Vacate 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of 0 220 Foreclosure 0 441 Voting Sentence or Defendant) Agency Decision 0 230 Rent Lease & Ejectment 0 442 Employment Habeas Corpus: 0 871 IRS--Third Party 0 950 Constitutionality of 0 240 Toils to Land 0 443 Housing! 0 530 General 26 USC 7609 State Statutes 0 245 Tort Product Liability Accommodations 0 535 Death Penalty IMMIGRATION 0 290 All Other Real Property 0 445 Amer. w/disabiliiies - 0 540 Mandamus & Oilier 0 462 Naturalization Application Enrsploynieiri 0 550 Civil Rights 0 463 Habeas Corpus - 0 446 Amer. w/disabiliiies - 0 555 Prison Condition Alien Detainee Oilier 0 560 Civil Detainee - (Prisoner Petition) 0 448 Education Conditions of 0 465 Oilier Imrrimgrainoii Confinement Actions V. ORIGIN (P/ace an "X" in One Box Only) l ransferred from I Original 1 2 Removed from 171 3 Remanded from n 4 Reinstated or n 5 another district 171 6 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. 701 --706 Vt. CAUSE OF ACTION Brief description of cause: National Environmental Policy Act ("NEPA") challenge, 42 U.S.C. 4321 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
Case 3:12-cv-01175-HZ Document 1-2 Filed 07/02/12 Page 1 of 2 Page ID#: 8 Jill S. Gelineau, OSB #852088 Email jgelineauschwabe,com Carson Bowler, OSB #951830 Email cbowler@schwabe.com Schwabe, Williamson & Wyatt, P.C. Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone 503.222.9981 Fax 503.796.2900 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 97204 Telephone 503,222.9981 Fax 503.796 2900
Case 3:12-cv-01175-HZ Document 1-2 Filed 07/02/12 Page 2 of 2 Page ID#: 9 Dated this 2nd day of July, 2012. Respectfully submitted, SCUWABE, WILLIAMSON & WYATT, P.C. By:, Ji Jill S. GeliIeau, OSB 85208 Carson Botvler, OSB 95183 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 97204 SCHWABE, WILLIAMSON & WYATT, P.C. Telephone 503 222 9981 Fax 503 7962900