NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE COALITION TO PROTECT PUGET No. 20-35546 SOUND HABITAT, a non-profit corporation, D.C. No. 2:16-cv-00950-RSL

Plaintiff-Appellee,

MEMORANDUM*

v.

UNITED STATES ARMY CORPS OF

ENGINEERS, an agency of the United States of America; et al.,

Defendants,

and

TAYLOR SHELLFISH COMPANY, INC.,

Intervenor-Defendant- Appellant.

CENTER FOR FOOD SAFETY, a non- No. 20-35547 profit corporation, D.C. No. 2:17-cv-01209-RSL Plaintiff-Appellee,

v.

UNITED STATES ARMY CORPS OF

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ENGINEERS, an agency of the United States of America; et al.,

Defendants,

NISBET OYSTER CO., INC.,

Intervenor-Defendant,

and

PACIFIC COAST SHELLFISH GROWERS

ASSOCIATION,

Intervenor-Defendant- Appellant.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted February 2, 2021 Seattle, Washington

Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.

Intervenors Taylor Shellfish Company and Pacific Coast Shellfish Growers

Association timely appeal (a) the summary judgment in favor of Plaintiffs

Coalition to Protect Puget Sound Habitat and Center for Food Safety, following the

district court’s holding that the United States Army Corps of Engineers violated

the Clean Water Act and the National Environmental Policy Act ("NEPA") in

issuing the 2017 version of nationwide permit ("NWP") 48; and (b) the district

2 court’s order remedying the legal errors by vacating the permit and the associated

verifications and by staying the vacatur in some respects. We affirm.

1. We have appellate jurisdiction under 28 U.S.C. § 1291, even though only

Intervenors, and not the agency, have appealed. The district court’s order finally

resolved all claims and did not require the agency to take any action at all. The

order therefore was not a "remand order" in the sense described by Alsea Valley

Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004), and Pit River

Tribe v. U.S. Forest Service, 615 F.3d 1069 (9th Cir. 2010). See generally Sierra

Forest Legacy v. Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011) ("The requirement

of finality is to be given a practical rather than a technical construction." (alteration

and internal quotation marks omitted) (quoting Gillespie v. U.S. Steel Corp., 379

U.S. 148, 152 (1964))).

2. The appeal is not moot. Although the Corps provisionally issued a 2021

version of NWP 48, Reissuance and Modification of Nationwide Permits, 86 Fed.

Reg. 2744 (Jan. 13, 2021), that permit has not taken effect and, even if it goes into

effect on schedule in mid-March, will not necessarily grant Intervenors full relief.

3. The district court correctly held that the agency abused its discretion, 5

U.S.C. § 706(2), by failing to explain adequately its conclusions that the 2017

version of NWP 48 will have "no significant impact" pursuant to NEPA, and "will

have only minimal cumulative adverse effect on the environment," 33 U.S.C.

3 § 1344(e)(1). See Bair v. Cal. Dep’t of Transp., 982 F.3d 569, 577 (9th Cir. 2020)

(describing NEPA’s requirements). The Corps expressly acknowledged the

negative effects on the environment from aquaculture activities but did not explain

adequately why those effects were insignificant or minimal.

Several of the Corps’ reasons were illogical. For example, the Corps

explained that many other sources caused even greater harm to the aquatic

environment than aquaculture, which is a reason that suggests there is a cumulative

impact. See 40 C.F.R. § 1508.7 (2017) (defining cumulative impact as "the impact

on the environment which results from the incremental impact of the action when

added to other past, present, and reasonably foreseeable future actions regardless of

what agency . . . undertakes such other actions." (emphasis added)). Similarly, the

Corps responded to a concern about pesticides with the irrelevant explanation that

the Corps does not regulate pesticides.

The Corps’ citation to a limited scientific study of the effects of one type of

shellfish on one natural resource, where the study did not consider a wide range of

environmental stressors, does not suffice—without further explanation—to justify

the Corps’ much broader determination that at least five types of shellfish will have

insignificant and minimal effects on the full aquatic environment. We also reject

Intervenors’ argument that certain programmatic documents (which were issued

for a different purpose and which applied different legal standards) supply the

4 missing explanation. In issuing its national decision, which was the only document

to make a finding under NEPA, the Corps indisputably did not cite or otherwise

mention those documents. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("We may not supply a reasoned basis for

the agency’s action that the agency itself has not given." (quoting SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947))). Finally, Intervenors’ lawyer conceded, during

oral argument, that an agency may not rely exclusively on a tiered review to justify

its nationwide environmental assessments. Accord Sierra Club, Inc. v. Bostick,

787 F.3d 1043 (10th Cir. 2015); Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d

402 (6th Cir. 2013); Ohio Valley Env’t Coal. v. Bulen, 429 F.3d 493 (4th Cir.

2005).

4. The district court did not abuse its discretion in crafting an equitable

remedy. See, e.g., Teutscher v. Woodson, 835 F.3d 936, 942 (9th Cir. 2016)

(holding that we review for abuse of discretion an equitable remedy). Full vacatur

is the ordinary remedy when a rule violates the Administrative Procedure Act, and

courts deviate "only when equity demands." Pollinator Stewardship Council v.

U.S. EPA, 806 F.3d 520, 532 (9th Cir. 2015) (internal quotation marks omitted).

Here, the court ordered briefing from the parties on the appropriate remedy and

carefully crafted a hybrid remedy that reasonably balanced the competing risks of

environmental and economic harms. The court allowed many aquaculture

5 activities to continue while applicants seek an individualized permit from the

Corps, and the court permissibly accepted the good-faith compromise reached by

some parties.

Before the district court and before us, Intervenors have not sought a

nuanced adjustment to the court’s arrangement. Instead, Intervenors assert that

anything short of a vacatur only with respect to new applicants, allowing nearly

900 aquaculturists to continue their operations in full without any further review by

the Corps, constituted an abuse of discretion. Particularly because vacatur is the

presumptive remedy, and because aquaculturists may seek individualized permits,

we are unpersuaded that the district court’s discretion was so constrained.

AFFIRMED.

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