Inletkeeper v. United States Army Corps of Engineers

MEMORANDUM

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 Water Act (“CWA”). Further, the record supports the determination that the Corps…