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Plump v. Graham

United States District Court, D. Arizona

May 9, 2017

Richard Plump, et al., Plaintiffs,
David J Graham, et al., Defendants.



         Pending before the Court are Plaintiff Richard and Janine Plump's (“Plumps”) and Defendant United States Army Corps of Engineers' (“Corps”) respective motions for summary judgment, (Docs. 56, 71). For the following reasons, the Court grants the Corps' motion for summary judgment and denies the Plumps' motion.


         The United States Army Corps of Engineers (“Corps”) is an agency within the United States Department of Defense entrusted with, among other things, managing the discharge of material, including concrete and natural soils, into the navigable waters of the United States, such as the Colorado River. (Doc. 57 at 2; Doc. 68 at 1, 2.) Generally, due to concern for the cumulative effects of multiple jetties on the Colorado River, the Corps does not permit the construction of new jetties, but the Corps will permit certain improvements to existing jetties. (Doc. 57 at 2; Doc. 68 at 2.) To remove any doubt whether improvements fall within the permissible scope, a landowner may apply for a permit or seek a “verification letter” from the Corps. There is no requirement, however, that the landowner do so. (Doc. 68 at 4-5.)

         There is more than one type of permit; a landowner may seek a specialized permit, unique to his situation, or may qualify to use a pre-existing nationwide permit. (Doc. 68 at 5.) A nationwide permit categorically authorizes “certain activities that have minimal individual or cumulative adverse effects on the aquatic environment.” (Doc. 57 at 3; Doc. 68 at 6.) Nationwide Permit No. 3 (“NWP 3”) permits the “repair, rehabilitation, or replacement of any previously authorized, currently serviceable structure.” (Doc. 57 at 4; Doc. 68 at 6.) While “minor deviations” from the original plans are authorized, a landowner may not use the NWP 3 if he is seeking to “put [the jetty] to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification.” (Doc. 57 at 4; Doc. 68 at 6.)

         The Plumps own property on the banks of the Colorado River, “directly to the north of the Grahams' property.” (Doc. 57 at 11.) In 1983, the previous owners of the Grahams' property constructed a jetty (“1983 Jetty”) that extended into the Colorado River. (Doc. 57 at 2; Doc. 68 at 3.) By the time that the Grahams applied to renovate the 1983 Jetty, it was composed of dirt, rock, and vegetation.[1] (Doc. 57 at 3; Doc. 68 at 3.) The original measurements of the 1983 Jetty are disputed but the parties agree that in 2013 the Grahams' plans to renovate the jetty involved creating a new structure (“New Jetty”) with an approximate height of 14 feet and a total width of 21 feet. (Doc. 57 at 3, 5; Doc. 68 at 3-4, 7.) The plans for the proposed renovations to the 1983 Jetty were approved by the Corps in 2013, as the Corps verified that the renovations complied with NWP 3. (Doc. 57 at 5, Doc. 68 at 8.)

         The Grahams altered their renovation plans in 2014. (Doc. 57 at 5, Doc. 68 at 8.) These alterations included abandoning the original sloped design of the 1983 Jetty in favor of a vertical wall. (Doc. 57 at 5; Doc. 68 at 8.) The Grahams submitted these updated plans to the Corps. (Id.) There is no evidence that the Grahams' modified plans ever led to a modification of the verification given by the Corps in 2013; however, several documents in the administrative record indicate that the Corps continued to find that the revised plans still complied with NWP 3. (Doc. 68 at 9.)

         In September of 2014, the Grahams began demolishing the 1983 Jetty. (Doc. 57 at 6.) Beginning in October of 2014, the Plumps sent several emails and photographs to Corps Senior Project Manager, William Miller, to voice their concerns over the New Jetty. (Doc. 57 at 6-7; Doc. 68 at 10.) These concerns included the Plumps' opinions that the New Jetty: 1) moved several feet north in relation to the 1983 Jetty, 2) was significantly larger than the 1983 Jetty, 3) could not provide a home for wildlife, 4) contained drain pipes that were exposed at low tide, and 5) extended into the Plumps' property. (Doc. 57 at 7; Doc. 68 at 10.) On October 29, 2014, William Miller sent an email to the Grahams' architect requesting the plans of both the 1983 Jetty and the New Jetty. (Doc. 57 at 7; Doc. 68 at 11.) Mr. Miller indicated that he had a set of photos indicating that the New Jetty was much larger than the jetty as it currently existed, but that he also understood that pictures can be deceiving, and thus he requested “a set of drawings be submitted that allows [the Corps] to compare the previous structure with the new structure.” (Administrative Record (“AR”) at 169.) The Grahams provided updated drawings and the Corps confirmed that the New Jetty complied with NWP 3. (Doc. 68 at 22.) However, the Plumps continued to compose letters and emails to the Corps to voice their concerns over the New Jetty. (Doc. 57 at 6-9; Doc. 68 at 12-14.) These continued concerns led the Corps to conduct an in-person inspection of the New Jetty in November of 2014. (Doc. 68 at 23; AR at 273.) The Corps ultimately completed its investigation into the matter in February of 2015, and found that the New Jetty was permissible under NWP 3. (Doc 68 at 23; AR at 326.) The Corps summarized its findings in a Memorandum for the Record (“MFR”), specifically noting that the New Jetty “should be an improvement in terms of safety and stability.” (Doc. 68 at 23; AR at 326.) The Corps related these findings to the Plumps in a letter soon after. (Doc. 68 at 24; AR at 336.)

         The Plumps continued to voice their concerns even after this final communication from the Corps. (Doc. 57 at 10; Doc. 68 at 15.) The Plumps became particularly concerned that the New Jetty presented risks to swimmers, trapped debris in front of the Plumps' property, and caused soil to be washed away from the Plumps' land. (Doc. 57 at 10; Doc. 68 at 15.) In April, Mr. Plump composed a letter to the Corps reflecting these concerns, and emphasizing that he did not believe that the scouring effect of the New Jetty was considered before the New Jetty project received its permit. (Doc. 57 at 10; Doc. 68 at 16; AR at 347.) There is no evidence that the Corps ever responded to this letter. (Doc. 57 at 10; Doc. 68 at 16.)

         The Plumps subsequently filed this lawsuit under the Administrative Procedure Act (“APA”) to seek judicial review of the Corps' determination that the NWP 3 applied to the New Jetty. (Doc. 26 at 17.) The Plumps seek equitable relief in the form of an injunctive order compelling the Corps to revoke the NWP 3 approval of the New Jetty and a declaration that the Corps' actions in approving the New Jetty under NWP 3 were arbitrary and capricious. (Id. at 18.) Both parties filed motions for summary judgment. (Docs. 56, 71.)


         I. Standard of Review

         Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “In reviewing an administrative agency decision, summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.” City & Cty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (internal citations and quotations omitted). District courts are “not required to resolve any facts in a review of an administrative proceeding, ” because fact finding is in the realm of duties delegated to the agency. Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). Rather, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co., 753 F.2d at 769. In making this review, “the court shall review the whole [administrative] record.”[2] Id.

         Agency actions may be set aside if the agency's “action, findings, and conclusions” are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” 5 U.S.C. § 706. This is a very narrow standard, and courts must not substitute their judgment for that of the agency. Nat'l Wildlife Fed'n v. U.S. Army Corps of Engineers, 384 F.3d 1163, 1170 (9th Cir. 2004). However, courts may set aside an agency's finding if the agency fails to “articulate a rational connection between the facts found and the conclusions ...

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