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Oregon LNG pulls out of Army Corps litigation

Judge John V. Acosta orders the case dismissed 'without prejudice.'
By Erick Bengel

The Daily Astorian

Published on January 10, 2016 1:29PM

Last changed on January 11, 2016 9:33AM

The east side of the Skipanon Peninsula, right, is the proposed location for a liquefied natural gas export terminal to be built by Oregon LNG.

Alex Pajunas/The Daily Astorian

The east side of the Skipanon Peninsula, right, is the proposed location for a liquefied natural gas export terminal to be built by Oregon LNG.

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Oregon LNG has voluntarily withdrawn from litigation with the U.S. Army Corps of Engineers before a federal district court judge could officially dismiss the energy company’s claims.

In late December, Magistrate Judge John V. Acosta ruled against Oregon LNG in a lawsuit the company filed against the Army Corps. Oregon LNG failed to prove, Acosta said, that the Corps has abandoned property on Warrenton’s Skipanon Peninsula where the company seeks to build a liquefied natural gas facility, and where the Corps holds a nearly 60-year-old easement to deposit dredging spoils.

Acosta’s ruling still needs to be signed by Anna J. Brown, a federal district court judge, to become official.

But, with Oregon LNG choosing to void its lawsuit ahead of Brown’s signature, the judgment will specify that the company’s claims are dismissed “without prejudice.” This means that, in theory, the company can refile the complaint against the Corps based on the same set of facts.

Oregon LNG could not immediately be reached for comment, but opponents of the $6 billion terminal and pipeline project welcomed the move as another setback for the company.

“The direct implication is that there won’t be an official court judgment saying that Oregon LNG ‘loses,’” said Miles Johnson, a clean water attorney for Columbia Riverkeeper, a Hood River-based environmental group opposing the LNG project. “The court’s opinion in this case makes it clear that Oregon LNG wasn’t going to win the case, but there won’t be a final judgment out there saying that.”

Asked if Oregon LNG’s move surprised the Army Corps, Michelle Helms, an Army Corps public affairs specialist, said, “‘Unexpected’ would be a good way to say it.”

“But, as we’ve said before, this site is a part of our plan to maintain the federal navigation channel there, so we’re doing our part,” she added.

Had Oregon LNG waited for the federal district court to finalize Acosta’s judgment, the company’s case would likely have been dismissed “with prejudice” — meaning the case would have been dismissed permanently.

And the Army Corps and Oregon LNG opponents would likely have less uncertainty about Oregon LNG’s next step — namely, whether the company will choose to relitigate the case.

If they go that route, however, it “seems highly unlikely that they would get a different result,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper. “They withdrew because they lost.”

After Brown signs the ruling, an appeal period will follow, so “it will take a little while before this is final and set in stone,” Johnson said.

Acosta’s ruling is the judge’s second against Oregon LNG’s efforts to seize the Army Corps’ easement land.

Last summer, Acosta dismissed Oregon LNG’s original claim that the Corps has no right to the land beneath the water where the company’s proposed facility would be built.

Since the 12-year statute of limitations to bring that claim under federal law had expired, the company tried to amend its claims by alleging that the Army Corps had abandoned its interest in the property.

“(T)he court finds the Corps did not abandon its easement on the subject property as a matter of law, and no justification exists for the court to revisit its decision that LNG’s claims should be dismissed,” Acosta wrote. “The court should not reconsider its previous ruling and should not grant LNG leave to amend their complaint.”

Acosta’s order to dismiss this second round of claims “without prejudice” does not change his statements about the facts, Johnson said.

“It’s just one more legal defeat for Oregon LNG in kind of a long string of them,” he said. “It makes it harder for them to see how they’re going to get this project off the ground.”

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