Ocean Advocates, a Non-Profit Organization Fuel Safe Washington, a Non-Profit Organization North Cascades Audubon Society, a Non-Profit Organization Dan Crawford, an Individual Re Sources, a Non-Profit Organization v. United States Army Corps of Engineers Ralph H. Graves, Bp West Coast Products, Llc, F/k/a Atlantic Richfield Company, Intervenor-Appellee. Ocean Advocates, a Non-Profit Organization Fuel Safe Washington, a Non-Profit Organization North Cascades Audubon Society, a Non-Profit Organization Dan Crawford, an Individual Re Sources, a Non-Profit Organization v. United States Army Corps of Engineers Ralph H. Graves, Bp West Coast Products, Llc, F/k/a Atlantic Richfield Company, Intervenor-Appellant

Ocean Advocates (OA), an environmental group, appeals a summary judgment ruling in favor of the U.S. Army Corps of Engineers (the Corps) and BP West Coast Products (BP).1 OA challenges the issuance and extension of a permit allowing BP to build an addition to its existing oil refinery dock in Cherry Point, Washington. OA argues that the district court erred in granting summary judgment to the Corps and BP, insisting that the permit violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and the Magnuson Amendment to the Marine Mammal Protection Act (MMPA), 33 U.S.C. § 476. BP cross-appeals the district court's denial of its motion for summary judgment on grounds that OA lacks standing and that laches bars this action.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.

Cherry Point is an approximately ten-mile stretch of coastline located in the Strait of Georgia in northeast Puget Sound. It has been described as "a shoreline of statewide significance," by the Whatcom County Hearing Examiner.

BP first constructed a refinery to process Alaskan North Slope crude oil in Cherry Point, south of Point Whitehorn, in 1971. The 1969 permit authorizing this project allowed BP to construct a dock to which tankers would deliver crude oil.

The dock design included two platforms: one for unloading crude oil and one for loading refined product. Just before construction began, BP opted to build only the southern platform and deferred building the northern platform until production at the refinery reached capacity or the loading and unloading of tankers began to interfere with refinery operations. Physical adjustments enabled the southern platform both to unload crude oil and to load refined product so that the dock could function as it would have with both platforms.

BP sought to have the 1969 permit reopened in 1977 so that it could complete the original design of the pier by building the northern platform. Because of the time lapse between granting the original permit and the request to reopen, the Corps required BP to submit a new permit application that would be subject to public notice and comment. BP withdrew the application.

BP again applied for a permit to build the northern platform in 1992. The additional platform would double the refinery's berthing capacity. The existing southern platform would cease to serve the dual functions of unloading crude oil and loading refined oil. Instead, the southern platform would only receive crude oil, while the northern addition would only load refined product.

The Corps provided public notice of the application on June 3, 1992, and received substantive responses from the U.S. Fish and Wildlife Service (FWS), the Lummi Indian Nation, and the Nooksack Indian Tribe.

The FWS raised concerns about the cumulative impact of the construction and operation of the pier when considered together with similar industrial projects in the Strait of Georgia. The FWS worried that the additional platform would facilitate an increase in tanker traffic and product handling, thereby increasing the likelihood of a major oil spill. Three years after the public notice, but before the permit was issued, the FWS requested an environmental impact statement (EIS) to assess increased traffic and the cumulative impact of the additional platform.

In response, BP insisted that the dock expansion would decrease the risk of oil spills because the new dock would reduce the amount of time tankers spent anchored at sea while waiting to dock. Therefore, BP argued, the additional dock would diminish the potential for oil spills "during anchorage and bunkering," when ships are most vulnerable. BP also noted that in the event of a spill, the new dock would contain "state of the art" oil spill containment equipment.

Other public comments were similar. The Lummi Indian Nation expressed concern that the new platform would, among other things, increase tanker traffic and the risk of oil spills and requested that the Corps require an EIS before issuing the permit. The Nooksack Indian Tribe had similar misgivings. Its primary worry was that greater vessel traffic would mean increased handling of fuel and other toxic substances, which, in turn, would create a larger risk of harm to fish resources. Both the Lummi Nation and the Nooksack Tribe entered mitigation agreements with BP and ultimately withdrew their objections to the permit.

Meanwhile, the marbled murrelet2 was listed as a threatened species under the Endangered Species Act, 16 U.S.C. §§ 1531-44. See 50 C.F.R. § 17.11 (2002). The Corps accordingly asked BP to consider how the dock addition would affect this bird. BP concluded that although "[m]arbled murrelet[s] are susceptible to death or injury from oil spills" and although "[o]il spills are chance events that could have an impact on local populations of murrelets near Cherry Point," an oil spill containment boom made that already "remote" threat "negligible."

The Corps granted the permit on March 1, 1996, concluding that constructing the northern platform probably would not result in adverse cumulative impacts to fish and wildlife resources in the Cherry Point area. The Corps also agreed with BP that the project would reduce the chance of oil spills while ships anchored because the pier extension would decrease tanker wait time. Moreover, the Corps found that the additional pier likely would diminish the devastation associated with an oil spill during bunkering of tankers at dock because oil spill containment booms would surround the new platform. The Corps also made a Finding of No Significant Impact (FONSI), determining that the pier addition "will not significantly affect the quality of the human environment," and that an EIS therefore was not required.

OA contacted the Corps on October 9, 1997, asking it to reopen the permit granted BP and requesting a more complete evaluation of the cumulative impacts that the new platform would have on vessel traffic safety. OA also asked the Corps to consider whether the permit violated the Magnuson Amendment, 33 U.S.C. § 476, which regulates permits for oil transport terminals in Puget Sound. The Corps declined to reopen or reconsider the permit.

In July 1999, the Washington State Department of Natural Resources (WSDNR) issued a Screening Level Ecological Risk Assessment (SLERA). This report concluded that additional ship traffic associated with the expanded pier would elevate the probability of an oil spill. Although the reduction in temporary anchoring while waiting to dock would decrease the chance of an oil spill, the SLERA noted that the number of vessels using the pier would increase eighteen to thirty-six percent over five years, which would increase the likelihood of an oil spill. This increase in ship traffic would occur, according to the SLERA, whether or not BP built the pier extension.

OA contacted the Corps on September 29, 1999, and again asked it to reconsider the permit. OA argued that the Corps' previous denial of its request to reopen the permit relied on inaccurate information, including that the refinery was operating "at capacity." New data demonstrated that the refinery had increased its output and that the project would promote additional tanker traffic and an increased potential for an oil spill. For these reasons, OA suggested that the permit violated the Magnuson Amendment and requested a "full" EIS.

The Corps asked BP to address OA's concerns. BP continued to allege that the dock extension would benefit the environment by reducing the risk of oil spills; any further environmental analysis was unnecessary. As for the Magnuson Amendment claim, BP pointed to the statutory language, which prohibits permits that "may result in any increase in the volume of crude oil capable of being handled" at a facility. Id. (emphasis added). The new dock could not violate the Magnuson Amendment, BP argued, because the northern pier would load only refined oil. In addition, BP noted that the northern platform would leave the refinery pipes untouched, meaning that the refinery's pumping or hydraulic capacity — the facility's ability to process crude oil — would remain unaltered. Finally, BP disputed OA's claim that the dock extension would be the main cause of increased vessel traffic.

BP requested a one-year extension to its 1996 permit in March 2000 to allow it time to complete the dock construction. The original permit was set to expire on March 1, 2001, and BP wished to begin construction in June 2000 and finish by late 2001. The Corps decided that while it would wait to grant BP the one-year extension pending FWS consultation on whether the project would affect newly listed threatened species, it would not issue a public notice or accept public comments on the permit extension.

The WSDNR contacted the Corps about the permit extension. It expressed concern that its earlier report (the SLERA) was very narrowly focused on the pier extension alone and did not consider the cumulative effects of multiple projects on the Cherry Point region. While the WSDNR did not specifically oppose the extension, it noted that circumstances had changed since the Corps originally granted BP the permit, including the listing of the Puget Sound Chinook salmon and bull trout under the Endangered Species Act. The WSDNR communicated its continued concern about the potential cumulative impacts on the Cherry Point habitat for spawning herring and juvenile Chinook.

The Corps granted BP the permit extension on June 29, 2000. The Corps adopted BP's "reasonable" interpretation of the Magnuson Amendment. Because the pier construction would not increase the refinery's capability to offload crude oil tankers, the Corps determined that the pier extension complied with the Magnuson Amendment. The Corps also rejected OA's claim that devoting the pier extension exclusively to refined oil would free the existing portion of the dock to unload more crude oil, effectively increasing the volume of crude oil capable of being handled at the BP facility. The Corps agreed with BP that increased tanker traffic depends not on the remodeling of the refinery but exclusively on market forces. The Corps, relying on information primarily from BP, found that the new platform would not result in adverse cumulative impacts on natural resources in the Cherry Point area. The Corps again concluded that an EIS was not essential to determining the cumulative impacts, if any, of the project.

OA brought this action against the Corps on November 21, 2000. The district court allowed BP to intervene as a defendant, and the parties filed cross-motions for summary judgment. The district court granted summary judgment for the Corps and BP as to OA's environmental claims. In doing so, the court found that NEPA did not require an EIS because the pier extension was intended to alleviate existing tanker traffic and because tanker traffic would increase with or without the dock extension. The court also adopted the Corps' interpretation of the Magnuson Amendment. Finally, the district court concluded that BP's request for a permit extension did not require a period of public notice and comment. See Ocean Advocates v. United States Army Corps of Engineers, 167 F.Supp.2d 1200 (W.D.Wash.2001). The district court also denied BP's summary judgment motion with respect to claims that OA did not have standing and that laches barred this action. Id.

Following the court's entry of judgment, the parties stipulated to an injunction that prohibits the use of the dock extension for loading or unloading crude oil, unless BP applies for a permit. The terms of the injunction provide that even if BP receives a permit for using the dock extension to load or unload crude oil, BP cannot use the new platform to load and unload crude oil at the same time that it also uses the original southern platform for that purpose. The injunction essentially allows BP to use only one of the two Cherry Point platforms for loading and unloading crude oil at any time.

We review de novo the district court's grant of summary judgment. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We "must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact." Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc).

The Administrative Procedure Act (APA) governs our review of the Corps' action, conclusions, and findings of fact. Section 10(a), 5 U.S.C. § 702, sets out the standard for judicial review of decisions involving NEPA, Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), and the MMPA, 16 U.S.C. § 1374(d)(6) (allowing judicial review of MMPA permit decisions under the APA). We must set aside the Corps' actions, findings, or conclusions if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

This review is "searching and careful," but the arbitrary and capricious standard is narrow, and we cannot substitute our own judgment for that of the Corps. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). We ask "whether the [Corps'] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814. We also "must determine whether the [Corps] articulated a rational connection between the facts found and the choice made." Ariz. Cattle Growers' Ass'n v. United States Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001). Our review "must not `rubber-stamp'... administrative decisions that [we] deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Id. (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965)) (first alteration in original).

Before considering the substantive merits of the claims raised on appeal, we must first address OA's standing.3 OA must establish that it meets both the constitutional and prudential standing requirements. Article III standing requires that OA

show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). OA must also demonstrate that its interests fall within the "zone of interests" protected by NEPA and the Magnuson Amendment to satisfy prudential standing. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).

OA is a nonprofit organization dedicated to protecting oceans for the people and wildlife dependent upon them for "life, livelihood, and enjoyment." OA executives have committed themselves to preventing oil spills in the waters contiguous to Washington State for more than two decades. OA members own property on Haro Strait on San Juan Island and enjoy photographing marine life, fishing for salmon and shellfish, and watching marine life.

The director of OA, Fred Felleman, owns waterfront property en route to the BP refinery. He works as a marine biologist studying orca whales in Puget Sound and earns most of his income as a professional marine wildlife photographer. Increased tanker traffic, the discharge of pollutants, and the risk of oil spills will jeopardize his professional, economic, and personal interests in Cherry Point.

[1] [A]n individual can establish `injury in fact' by

showing a connection to the area of concern sufficient to make credible the contention that the person's future life will be less enjoyable — that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction — if the area in question remains or becomes environmentally degraded.

Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir.2000). Record evidence suggests that the dock extension risks increased tanker traffic and a greater potential for an oil spill corresponding increase in the risk of an oil spill; we are persuaded that OA will suffer substantially lessened enjoyment of Cherry Point should an oil spill occur. An oil spill would cause a markedly decreased opportunity for OA members to study the ecological area, observe wildlife, and use Cherry Point for recreation. Felleman's interests as a member of OA, a professional, and a property owner also would be harmed. Because "[t]he `injury in fact' requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant's conduct," OA has shown injury in fact. Id. at 1147.

Furthermore, the alleged injury is not conjectural or hypothetical, as "an increased risk of harm can itself be injury in fact for standing," and nothing necessitates a showing of existing environmental harm. Id. at 1151."[T]o require actual evidence of environmental harm, rather than an increased risk based on a violation of [a] statute, misunderstands the nature of environmental harm" and would unduly limit the enforcement of statutory environmental protections. Id. (citing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000)).

The injury also is fairly traceable to the BP pier. OA has shown that "the alleged injury can be traced to[BP's] challenged conduct, rather than to that of some other actor not before the court." Ecological Rights Found., 230 F.3d at 1152. At the time litigation commenced, all parties agreed that BP would build the new platform and that traffic to the dock extension would increase over time. OA has alleged sufficiently that the dock extension, when considered alone or in tandem with other industrial projects in the Cherry Point region, would contribute to the risk of an oil spill. "[T]he causal connection put forward for standing purposes cannot be too speculative, or rely on conjecture about the behavior of other parties, but need not be so airtight at this stage of litigation as to demonstrate that the plaintiffs would succeed on the merits." Id. (reversing grant of summary judgment). While other factors may also cause additional tanker traffic and increase the attendant risk of an oil spill, the link between the new platform and increased traffic is not tenuous or abstract.

The last prong required for constitutional standing, redressability, also is present here, as the relief OA has requested will remedy its harm. OA conceded at oral argument that it does not wish to have the additional platform, which is now fully constructed, demolished. Instead, OA seeks an EIS under NEPA and an injunction pursuant to the Magnuson Amendment. An injunction restricting tanker traffic obviously would alleviate OA's concern about increased traffic. The other remedy, which is procedural in nature, would also redress OA's injury.

A plaintiff, like [OA] who asserts inadequacy of a government agency's environmental studies under NEPA need not show that further analysis by the government would result in a different conclusion. It suffices that, as NEPA contemplates, the [Corps'] decision could be influenced by the environmental considerations that NEPA requires an agency to study.

Hall v. Norton, 266 F.3d 969, 977 (9th Cir.2001) (emphasis added) (citation omitted). If the Corps had conducted a "full" EIS considering increased traffic and the cumulative impact of the dock extension as OA requested, the Corps' decision to grant BP the permit and the permit extension could have been influenced by those environmental studies. OA certainly meets this undemanding burden.

OA easily meets the prudential standing requirement because its injuries are within the zone of interests protected by NEPA and the Magnuson Amendment. The zone of interests test is "not meant to be especially demanding." Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). OA need only show that its interests share a "plausible relationship" to the policies underlying each statute. Id. at 403, 107 S.Ct. 750. Prudential standing is satisfied unless OA's "interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. at 399, 107 S.Ct. 750.

OA's interests clearly meet the lenient zone of interests test. Congress drafted NEPA in order to protect the environment, by "fulfill[ing] the responsibilities of each generation as trustee of the environment for succeeding generations" and "attain[ing] the widest range of beneficial uses of the environment without degradation." 42 U.S.C. § 4331(b). The Magnuson Amendment attempts to reduce the threat of "increased domestic and international traffic of tankers carrying crude oil in bulk which increases the possibility of vessel collisions and oil spills." 33 U.S.C. § 476(a)(2). It is without question that OA seeks to avoid the harmful effects of increased tanker traffic, and relatedly, the increased risk of oil spills, an objective that matches the aim of the Magnuson Amendment as well as the general goal of environmental protection lauded in NEPA.

OA also must satisfy us that it has organizational standing. OA can successfully allege organizational standing if its members would have standing to sue on their own behalf, the interests at issue are "germane" to OA's mission, and neither the substantive claim nor the remedy sought necessitates the participation of any individual member of OA. Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 334, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).

We hold that OA has organizational standing. The above analysis demonstrates that Felleman would have standing as an individual to sue BP. OA's main interest, namely foreclosing the increased risk of an oil spill, certainly is germane to OA's purpose of protecting and preserving oceans for humans and animals who rely on them. We cannot see how the participation of any individual member of OA would aid the determination of liability, an appropriate remedy, or both, let alone how such involvement would prove necessary.

Finally, OA must persuade us that it meets the APA statutory requirements for standing. Churchill County v. Babbitt,