                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 07 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


COOK INLETKEEPER; SIERRA CLUB;                   No. 13-35101
ALASKA SURVIVAL,
                                                 D.C. No. 3:12-cv-00205-RRB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

UNITED STATES ARMY CORPS OF
ENGINEERS; THOMAS P. BOSTICK,
Commander and Chief of Engineers, U.S.
Army Corps of Engineers;
CHRISTOPHER D. LESTOCHI, Colonel,
District Commander, U.S. Army Corps of
Engineers, Alaska District,

              Defendants - Appellees,

and ,

ALASKA RAILROAD CORPORATION;
MATANUSKA SUSITNA BOROUGH,

              Intervenor-Defendants -
Appellees.


                   Appeal from the United States District Court
                            for the District of Alaska


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                 Ralph R. Beistline, Chief District Judge, Presiding

                      Argued and Submitted August 15, 2013
                               Anchorage, Alaska

Before: KOZINSKI, Chief Judge, and BERZON and IKUTA, Circuit Judges.

      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



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

reasonably concluded, after consultation with Alaska Railroad Corporation

(“Railroad”), that the elevated rail alternative would significantly raise project

costs and introduce new logistical problems, and that the Corps did not blindly

accept the Railroad’s representations of cost and logistics.

      2. The District Court also did not abuse its discretion in denying the

preliminary injunction as to the other issues raised, because irreparable harm is

unlikely. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132-35

(9th Cir. 2011) (discussing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

19-24 (2008)).

      Inletkeeper did not show irreparable harm, in the absence of an interim

injunction, resulting from its claim that the Corps did not calculate properly the

amount of compensatory mitigation. Inletkeeper alleges faults with the functional

assessment analysis upon which this calculation was based, including the exclusion

of the water quality and wetland plant diversity functions from that assessment.

Inletkeeper has not faulted the data collection performed by the Railroad’s

contractor, which gathered information on all of the relevant variables, including

the water quality and wetland plant diversity functions; instead, it challenges the

way in which that data was analyzed. If Inletkeeper ultimately were to succeed on


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this claim, the analysis could be redone, and the Railroad could be required to

purchase additional compensatory mitigation credits, fully remedying the harm.1

      Similarly, it was not an abuse of discretion for the District Court to conclude

that the chance of irreparable harm based on Inletkeeper’s claim that the Corps

failed to consider properly the impact on the wetlands outside of the project’s

footprints is small. The Corps assessed the impact outside the project footprint and

imposed special conditions in the § 404 permit requiring the incorporation of

culverts and bridges that would maintain “natural wetland drainage and inundation

patterns” and would not interfere with fish passage. The Corps reasonably

determined that such culverts and buildings can be effective in maintaining

wetland hydrology, and the record supports the conclusion that the surrounding

wetlands will be sufficiently benefitted by those conditions to avoid irreparable

harm while this case is pending.



      AFFIRMED.



      1
        We take the Corps’ and the Railroad’s statements at argument that the
record does contain data collected about the functional capacities in 2008 and
2010, including data regarding the two functions that were excluded from the
functional assessment analysis, as representing that the data still available is
sufficient to redo the functional assessment categorization entirely and properly if
Inletkeeper ultimately were to prevail on this claim.

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