Unreported / Non-Citable
Background
American River Trees, Save the American River Association, and Center for Biological Diversity challenged federal review and approval of Contracts 3B and 4B in the American River Common Features 2016 Flood Risk Management Project. Contract 3B authorizes removal of 675–715 trees and trimming of more than 1,100 trees for approximately 1.8 miles of launchable rock toe, launchable trench, and bank protection along the Lower American River. The U.S. Army Corps of Engineers issued a record of decision approving both contracts on June 18, 2025, and the National Park Service issued a section 7 consistency determination for Contract 3B on July 7, 2025.
The August 2025 complaint originally asserted federal and California Wild and Scenic Rivers Act, NEPA, and CEQA claims. On November 20, 2025, the court preliminarily enjoined ground- or vegetation-disturbing activities under Contract 3B after finding a serious NEPA alternatives question. Plaintiffs later voluntarily dismissed the state-law claims against the Central Valley Flood Protection Board, leaving USACE and NPS as defendants and the WSRA and NEPA claims for decision. The parties cross-moved for summary judgment, and the court decided the motions on the papers.
The Court’s Holding
The court held that USACE's NEPA alternatives analysis was arbitrary and capricious. The agency had screened bioengineering armoring as meeting flood-risk and infrastructure objectives, retained it for further analysis, and told the public that bioengineering measures would be analyzed where bank protection was necessary. Yet the 2023 draft supplemental review neither analyzed that alternative nor briefly explained its elimination. Later appendices discussing fire, longevity, and flood-risk concerns came after the comment period and did not cure the loss of informed public participation. The court nevertheless found the required hard look adequate: NEPA did not demand a heritage-tree-specific baseline or count, and the vegetation, species, tree-size, removal, mitigation, and long-term-impact analyses were reasonable and entitled to deference.
The WSRA claim failed as a matter of law. Applying Oregon Natural Resource Council v. Harrell, the court reasoned that Contract 3B belongs to a congressionally authorized project, Congress is the decisionmaker, and USACE alone issues the record of decision and constructs the project. The agencies therefore had to follow section 7's procedures for action directed toward Congress, not obtain NPS's consistency determination. The court did not decide whether NPS's determination was arbitrary and capricious. The court granted Plaintiffs' motion for summary judgment on the NEPA claim against USACE and Defendants' cross-motion on the WSRA claim against USACE and NPS, denying the converse portions of each motion. Although vacatur is presumptive for a NEPA violation, the court was inclined to remand without vacatur and ordered the parties to meet and confer, filing either a joint stipulation if they agree on a remedy or supplemental briefing of no more than ten pages if they cannot agree, by November 17, 2026.
Key Takeaways
- An agency's own prior finding that an alternative meets project objectives can make its unexplained omission from the draft environmental review especially significant.
- USACE's post-comment explanation did not repair the NEPA defect because the public had no opportunity to review and comment on the agency's change of course.
- The NEPA victory was limited to the alternatives analysis; the court upheld the agency's baseline, tree-impact, mitigation, and long-term-impact analyses.
- For this congressionally authorized project, section 7 of WSRA did not require an administering agency's consistency determination.
- The order did not select a final remedy or vacate the record of decision; it required the parties to meet and confer and, by November 17, 2026, file either a joint stipulation or supplemental briefing of no more than ten pages.
Why It Matters
The decision separates a procedural NEPA violation from disagreement over environmental methodology. Even under substantial deference to agency expertise, USACE had to disclose and briefly explain the elimination of an alternative it had previously retained and promised to analyze. The timing of its explanation was central because later supplementation could not restore the draft-review opportunity for informed public participation.
The WSRA ruling turns on the statutory distinction between federal assistance requiring an administering agency's consistency determination and agency action directed toward Congress. The remedy remains unresolved: the court identified a deficient alternatives analysis but expressly left open whether remand without vacatur, rather than vacatur of the approval for Contracts 3B and 4B, is appropriate.