Friends of Newport Harbor sues U.S. Army Corps of Engineers over delayed response to FOIA request

A federal lawsuit has been filed against the U.S. Army Corps of Engineers by the Friends of Newport Harbor, which alleges that the former is in violation of the Freedom of Information Act by delaying timely delivery of requested documentation.

At the center of the issue lies the confined aquatic disposal site, or CAD, in Newport Harbor. The site, which is essentially a large hole, is meant to contain dredged sediment from the federal channels that is unsuitable for ocean release. The harbor requires regular dredging to avoid impeding navigation of its waters but was last partially dredged in 2012-13.

The first phase of the most recent dredging project was completed last summer, and the second half is expected to begin this spring.

Once dredged, the tainted sediment will be disposed of inside of the CAD and capped with 1 foot of sand for two years.

The Coastal Commission approved the application for the work in October, but the Friends of Newport Harbor and OC Coastkeeper have taken issue with the proposal, arguing that the city wrongfully characterized the sediment as “harmless.”

The complaint, filed in U.S. District Court on Tuesday, states that an attorney for the Friends of Newport Harbor filed a request with the U.S. Army Corps of Engineers in November of last year, seeking documentation on the construction of the CAD but that efforts to obtain the information have been met with continued delays.

“USACE, as part of its responsibility to keep navigational channels open, is proposing to dredge parts of the city’s Newport Harbor and has prepared an [environmental assessment or finding of no significant impact] in compliance with the National Environmental Policy Act,” the complaint reads. “[Friends of Newport Harbor] believe that the EA/FONSI for USACE’s dredging activities have been signed, but have still not received a copy from USACE’s office.”

It goes on to say that it is the belief of the Friends of Newport Harbor that the city of Newport Beach filed an application to construct the CAD in lower Newport Bay and that the agency was processing it, though it was unclear if the permit was either issued or if the USACE has assigned an environmental assessment or finding of no significant impact (EA/FONSI) report for the project.

According to the complaint, the local group’s attorney, Thomas Napoli, requested that report and other related documentation on Nov. 29 and received a response on Dec. 2, asking for further clarification, then again on Dec. 5, confirming the request would be processed.

That delay was extended on Dec. 28, then again on Jan. 4. When Napoli requested an update on the matter, he was contacted by a different person in the agency who reported the person he’d initially been in contact with was no longer working for the USACE but that the search for the requested documents was ongoing.

“To date, over 90 days after the initial request, no documents have been provided. It is clear that the USACE is kicking the can, and violating the law while doing so, as has followed none of the procedures outlined ... concerning the tolling or allowable extensions of time allotted for production of documents,” the complaint reads.

The Freedom of Information Act legally requires federal agencies to disclose any information requested under it, so long as it does not fall under one of nine exemptions that largely deal with personal privacy, national security or law enforcement. Under federal law, all agencies are required to respond to such a request within 20 business days, unless there are extenuating circumstances.

“At this point the city and the [USACE] have left us no other option but to pursue legal action. Every step of the way through this process, they have misled and misinformed the public. This is just more of the same, and we need to get to the bottom of this,” Shana Conzelman, volunteer director of community outreach for Friends of Newport Harbor, said in a statement announcing the lawsuit Wednesday.

“Unfortunately, because of the Army Corps’ refusal to release the relevant documents, the Friends of Newport Harbor had no recourse except to file a lawsuit to compel the Corps to disclose information that the public legally is already entitled to receive,” the organization stated in a news release announcing the suit had been filed Tuesday. “We refuse to allow the Corps’ stonewalling to rob us and other concerned residents of Orange County of our right to oppose this environmentally disastrous project, both in court and through grass-roots political efforts.”

Dena O’Dell, the Los Angeles District of the U.S. Army Corps of Engineers chief of public affairs, said in an email Wednesday that as a matter of policy the agency does not comment on pending litigation.

In its complaint, Friends of Newport Harbor is seeking all requested documentation, grant fee waiver requests and the award of a reasonable cost and attorney’s fees in addition to whatever other relief is believed appropriate.

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