Russellville Legends LLC v. United States Army Corps of Engineers et al
ORDER denying 16 Plaintiff's motion for summary judgment; and granting 21 Defendant's cross-motion for summary judgment. Signed by Judge Brian S. Miller on 3/31/2021. (kdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
RUSSELLVILLE LEGENDS, LLC
Case No. 4:19-CV-00524-BSM
UNITED STATES ARMY CORPS
OF ENGINEERS, et al.
Plaintiff’s motion for summary judgment [Doc. No. 16] is denied. Defendant’s crossmotion for summary judgment [Doc. No. 21] is granted.
Section 408 of the Clean Water Act requires anyone seeking to alter, use, or occupy
a civil works built by the United States for flood control to obtain permission from the United
States Army Corps of Engineers.
33 U.S.C. § 408(a).
Russellville Legends, LLC
(“Russellville”) is seeking judicial review of the Corps’s denial of its proposed construction
project. 5 U.S.C. § 706. Russellville also requests an interpretation of the Consent to
Easement agreement (“Consent”) issued by the Corps to Russellville’s predecessor-in-title,
Joe Phillips. 28 U.S.C. § 2201. Based on the administrative record, the undisputed facts are
Russellville purchased land from Phillips near Arkansas Tech University in order to
build student housing. The Corps has had a flowage easement over the property, below the
334-foot elevation line, since 1964. AR-2207. It does not have an easement above the 334foot elevation line. See id. The easement deed provides that no structures for human
habitation may be constructed on the easement, due to flooding risks. See id. In 1993, the
City of Russellville requested permission from the Corps to remove dirt from the part of
Phillips’s property that was within the flowage easement, to use as fill for a street project.
The Corps consented, and 7,000 cubic yards of dirt were taken from the northernmost ten
acres of Phillips’s property. AR-1550, 1553.
Three years later, the Corps gave consent to Phillips to place 7,000 cubic yards of fill
dirt on the southern portion of the property within the flowage easement, up to the point
where the borrowed dirt had been removed. AR-1575. Section 408 policies provide that a
Consent is “a written agreement between the holder of an easement and the owner of the
underlying fee estate, that allows the owner of the underlying fee estate to use (or authorize
another to use) their land in a manner that the easement holder has determined will not
interfere with the easement holder’s rights. A consent does not grant an interest in real estate
and is not an outgrant.” AR-613.
In July 2018, Jason Mann, the chief of the Corps’s Real Estate Division, sent a letter
to Russellville stating that the Consent “is still in effect.” AR-732. Mann’s letter also states
that the Consent “does not authorize the construction of structures in the flowage easement.”
Id. In September 2018, the Corps informed Russellville that the Consent was granted solely
to Phillips, does not run with the land, and that Russellville does not have authority to place
fill dirt onto the easement. AR-710.
Russellville submitted a section 408 request, using technical analysis conducted by
an environmental consulting firm named FTN. AR-140. FTN’s “volume displacement
calculation” concluded that Russellville’s proposal would not have a statistically significant
impact on water elevation and velocity in the flowage easement. Id. The Corps rejected the
volume placement calculation in favor of a hydraulic model, stating that the volume
placement calculation did not account for the fact that Russellville’s property is in area with
slope. AR-50. FTN then submitted a hydraulic model. AR-50, 61, 81, 129, 680.
The Corps concluded that Russellville’s proposed construction could reduce sump
capacity, increase flood heights in downtown Russellville, and increase channel velocities
in the event of flooding. AR-53. The Corps wrote that this is the case because the proposed
project would be located in the natural flood plain between Prairie Creek and Engineer Ditch,
the two primary floodways that drain into the Prairie Creek Pumping Station sump, a Corps
works project. AR-1.
The Corps has a project, the Prairie Creek Section 205 project, whose design is ninety
percent complete. This project, which will store runoff from the Prairie Creek watershed,
would be impacted by Russellville’s student housing project. AR-1. Agency guidelines
provide that, if an authorized Corps project will be negatively impacted by a requester’s
proposed project, “any further evaluation should be terminated and the requester notified.”
AR-632, E.C. No. 1165-2-220. Additionally, Executive Order 11988 requires federal
agencies to avoid the modification “support of floodplain development whenever there is any
For all of these stated reasons, the Corps denied
Russellville’s request. AR-1, 52.
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute of material fact,
and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). In the context of summary
judgment, an agency action is entitled to great deference. See Titan Wheel Corp. of Iowa v.
U.S. Envtl. Prot. Agency, 291 F. Supp. 2d 899, *907 (S.D. Iowa Nov. 10, 2003). The
Administrative Procedures Act (“APA”) requires that a court set aside an agency’s action
when the action is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A).
Administrative action is arbitrary and capricious only when it is not supportable on any
Falk v. United States, 452 F.3d 951, *954 (8th Cir. 2006). A court
determines whether the agency examined relevant data, stated a satisfactory explanation for
its decision, and included a rational connection between the facts and the decision made.
Dep’t. of Com. v. New York, 139 S.Ct. 2551, 2569 (2019). If the record before an agency
does not support its action, the reviewing court should remand to the agency for additional
investigation or explanation. Fl. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
Russellville’s request for a declaration of the rights granted by the Consent is denied
because the Consent is not a contract. The Declaratory Judgment Act, 28 U.S.C. § 2201,
permits a court to interpret a contract, by issuing a declaratory judgment in order to settle
“an actual controversy before it ripens into a violation [of] law, or a breach of contractual
duty.” Maytag Corp. v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers
of America, 687 F.3d 1076, 1081 (8th Cir. 2012) (citing Rowan Cos. v. Griffin, 876 F.2d 26,
28 (5th Cir. 1989)). The problem here is that Phillips did not give consideration for the
Consent, see AR-1575. Kearney v. Shelter Ins. Co., 71 Ark. App. 302, 306 (Ark. Ct. App.
2000) (consideration required to form a contract).
The Section 408 Process Applies
Russellville first argues that the Consent is still in effect, so it is not required to obtain
Corps approval under section 408. Pl.’s Supp. Br. Mot. Summ. J. (“Pl.’s MSJ Br.”) at 20,
31, Doc. No. 18. Russellville argues that the Corps allowed removal of dirt from the
northern portion of the easement and placement of that dirt on the southern portion. Since
not all of the dirt has been moved, it may place the remainder on the southern portion and
construct housing above the 334-foot elevation line. Because the proposed housing would
be “entirely on the land within the property covered by the Consent,” Russellville argues, the
Corps has no authority over that property and the section 408 process does not apply. Id. at
Russellville’s argument does not prevail because, whether or not the Consent is in
effect, section 408 approval is required because the Corps has projects—Russellville Dike,
Prairie Creek Pumping Station sump, and the Prairie Creek 205 area—that would be
impaired by Russelville’s project. See 33 U.S.C. § 408(a); AR-74–77, 94–97. This is
discussed below in greater detail. Further, the section 408 policy and procedural guidance,
AR-621, “applie[s] to alterations proposed within the real property identified and acquired
for the USACE project,” and Russellville’s planned pedestrian bridge would be placed within
the planned channel of the Prairie Creek Section 205 project, see AR-50.
Russellville’s motion for summary judgment is denied, and defendants’ cross-motion
for summary judgment is granted because the Corps’s denial of Russellville’s section 408
request was not arbitrary or capricious.
1. The Corps Examined Relevant Data
In determining whether an agency acted arbitrarily and capriciously under the APA,
a reviewing court considers whether the agency examined relevant data in making its
decision. See Dep’t. of Com., 139 S.Ct. at 2569. The Corps examined relevant data related
to the proposed student housing in evaluating Russellville’s section 408 request. FTN
submitted a memorandum to the Corps for review, using the requisite hydraulic model. The
administrative record shows that Julia Smethurst, the Corps’s section 408 coordinator,
reviewed FTN’s analysis and concluded that the “proposed alterations reduce sump capacity,
which increases flood heights in downtown Russellville and [water] channel velocities to as
much as 5.30 ft./s,” from 3.09 ft./s. AR-53.
Russellville argues that, if section 408 permission is required, the Corps’s denial is
arbitrary and capricious. Pl.’s MSJ Br. at 34, 43. Russellville contends that FTN submitted
its modeling and analysis to the Corps, AR-61, only after the Corps failed to provide
guidance on the scope of analysis and data that should have been included. Pl.’s MSJ Reply
at 22. Russellville argues that the Corps did not prepare a countervailing model or study to
refute the information that FTN provided about the housing proposal. Id. at 23. Further,
Russellville argues, FTN’s analysis and modeling were closely aligned with the Corps’s own
modeling of water surface levels, “and there were no significant differences or changes in
such levels.” Id.
In response, the Corps argues that it is not required to conduct its own scientific
studies to determine the impacts of Russellville’s proposed housing development, and to do
so would be an inappropriate use of public resources. Defs.’ Br. Cross Mot. Summ. J.
(“Defs.’ Cross Br.”) at 17, Doc. No. 22. The Corps argues that the section 408 request
process places the burden on the requester. The administrative record supports that if
hydrologic and hydraulic analyses are necessary as part of a request, it is the responsibility
of the requester, not the Corps, to provide them. AR-680 (“The requester will be responsible
for the analysis.”). The Corps also argues that FTN’s second memorandum, which included
the requisite hydraulic modeling, contains no “statement about the significance or
insignificance of the changes in water surface elevation and channel velocity,” unlike its
initial memorandum. Defs.’ Cross Br. at 19.
Rusellville may be correct that a hydraulic analysis conducted by an additional firm
may have provided further insight, but courts do not ask whether an agency’s action was
“‘the best one possible’ or even whether it was ‘better than [any] alternatives.’” Dep’t Com.,
139 S.Ct. at 2571 (quoting FERC v. Elec. Power Supply Ass’n., 136 S.Ct, 760, 782 (2016)).
Further, there is no precedent for the position that an agency is required to conduct its own
2. The Corps Stated Satisfactory Explanation
Courts also consider whether the agency has satisfactorily explained its decision,
which does not mean that a court may substitute its own judgment for that of the agency.
Dep’t. of Com., 139 S.Ct. at 2569. The Corps provided a satisfactory explanation for denying
Russellville’s section 408 request.
The Corps denied Russellville’s proposed project because the project would increase
flood risks to people and property. The Corps highlights that “a 100-year flood places the
[proposed] apartments’ first floors, parking lots, and exits underwater 2 to 3 feet.” AR-52.
The goal of avoiding this flooding, however remote, which could “deny escape,” is a rational
explanation for denying the construction of this new housing. The Corps also states that
Russellville’s proposal would impair the usefulness of other Corps projects. AR-1; see 33
U.S.C. § 408(a). Based on FTN’s hydraulic model, the Corps concluded that the Prairie
Creek cross sections go through the proposed apartment complex at three locations. Defs.’
Cross. Br. at 19. Further, Russellville’s project would obstruct the natural flow of floodwater
into the sump area, which is an “integral” part of the Corps’s Russellville Dike and Prairie
Creek Pumping Station project. Id. at 20; AR-50, 140, 470, 861, 1723, 1852. Russellville’s
“planned pedestrian bridge placed within the planned channel of the Prairie Creek Sec 205
project . . . raised flood heights and anyone using it would be [at] significant risk of loss of
life during a 100-yr flood event.” AR-50.
Russellville argues that Smethurst distorted FTN’s findings on the maximum water
surface level change for the Prairie Creek and Engineers Ditch. Pl.’s MSJ Br. at 41.
Russellville contends that the Corps exaggerated FTN’s findings on potential water surface
level changes, in order to safeguard the Corps’s projects. Id. at 45. The Corps is
undoubtedly interested in maximizing the effectiveness of its works projects, but “a court
may not reject an agency’s stated reasons for acting simply because the agency might also
have had other unstated reasons.” Dep’t. of Com., 139 S.Ct. at 2573.
3. Rational Connection between Facts and Decision
A rational connection exists between the Corps’s factual findings and its decision.
Dep’t. of Com., 139 S.Ct. at 2569. The Corps operates under the ongoing obligation to
“avoid to the extent possible long and short-term adverse impacts associated” with floodplain
modification. AR-2; Exec. Order 11988. The Corps’s projects would be negatively
impacted—however slightly—by Russellville’s proposed housing development.
For the foregoing reasons, Russellville’s motion for summary judgment [Doc. No.
16] is denied. Defendant’s cross-motion for summary judgment [Doc. No. 21] is granted.
IT IS SO ORDERED this 31st day of March, 2021.
UNITED STATES DISTRICT JUDGE
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