White Oak Realty, LLC et al v. United States Army Corps of Engineers et al
Filing
149
ORDER AND REASONS DENYING 114 Motion to Supplement Administrative Record 143 Motion to Strike. Signed by Judge Jane Triche Milazzo on 5/2/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WHITE OAK REALTY, LLC
CIVIL ACTION
VERSUS
NO: 13–4761
UNITED STATES ARMY CORP
OF ENGINEERS, ET AL.
SECTION "H"(3)
ORDER AND REASONS
Before
the
Court
are
Plaintiffs'
Motion
to
Supplement
the
Administrative Record (Doc. 114) and Defendants’ Motion to Strike ExtraRecord Evidence and Leave for Supplemental Briefing (Doc. 143). For the
following reasons, the Motions are DENIED.
BACKGROUND
This is a civil action for declaratory and injunctive relief. The plaintiffs
are White Oak Realty, LLC and Citrus Realty, LLC. The defendants are the
United States Corps of Engineers (the "Corps") and various Corps employees.
The dispute involves mitigation requirements imposed by the Corps on a tract
of land in Southeast Louisiana ("Idlewood Stage 2") jointly owned by Plaintiffs.
1
In response to the devastation caused by Hurricanes Katrina and Rita,
Congress authorized the Corps to undertake a series of projects collectively
known as the Hurricane and Storm Damage Risk Reduction System
("HSDRRS"). One of these projects involves the use of soil and clay ("borrow
material") to reinforce levees and floodwalls in the Gulf South. Under the
applicable statutes and regulations, the Corps determines whether a
particular location is a suitable source of borrow material and if so whether
mitigation of losses to fish and wildlife is necessary. 1
In October 2010, the Corps approved the use of borrow material from
Idlewood Stage 2 but found that the excavation of borrow material from
Idlewood Stage 2 would cause "unavoidable impacts" to the environment. 4
Accordingly, the Corps stated that if Idlewood Stage 2 were ultimately
approved for HSDRRS projects, the landowner or contractor would be required
to provide compensatory mitigation prior to excavation by purchasing credits
from a mitigation bank. Despite Plaintiffs disagreement with the finding, the
Corps reiterated its position that borrow material from Idlewood Stage 2 could
not be excavated for use in HSDRRS projects until credits were purchased from
a mitigation bank (the "Mitigation Requirement") in a final letter issued on
February 20, 2013.
Plaintiffs filed this suit against the Corps and various Corps employees
on June 10, 2013. In it, Plaintiffs contend, pursuant to the Administrative
Procedure Act ("APA") that the Water Resource Development Act ("WRDA"),
33 U.S.C. § 2201 et seq., does not authorize mitigation for Idlewood Stage 2 or
alternatively that the WRDA does not authorize the Corps to mandate the
purchase of mitigation credits as the sole form of compensatory mitigation.
1
See 33 U.S.C. § 2283.
4
Id. at p. 15.
2
Plaintiffs also allege that the Corps' decision amounts to an unconstitutional
taking under the Takings Clause and violates substantive due process. On
January 28, 2016, this Court granted in part Defendants’ Motion for Judgment
on the Pleadings, holding that jurisdiction exists over Plaintiffs’ Takings
Clause claim but dismissing Plaintiffs’ Substantive Due Process Claim. Prior
to the January 28 ruling, the parties had filed Cross-Motions for Summary
Judgment and a Motion to Supplement the Record. Subsequent to the ruling,
Defendants filed a Motion to Strike. Before this Court can address the crossmotions, it must decide the two remaining motions, which affect the contents
of the administrative record.
LAW AND ANALYSIS
A. Defendant's Motion to Strike Extra-Record Evidence and
Grant Leave to Amend or Supplement Summary Judgment Briefing
On January 28, 2016, this Court entered a ruling on Defendants' Motion
for Judgment on the Pleadings in which it held that this Court has jurisdiction
over Plaintiffs' takings claim. 15 Defendants thereafter filed the instant Motion
to Strike, stating that the Court's ruling changed the scope of its review of
Plaintiffs' takings claim.
Specifically, Defendants allege that the Court's
ruling clarified that the jurisdictional basis for Plaintiffs’ takings claim arose
under the APA and thus consideration of that claim should be governed by the
APA, which would limit review to the evidence in the administrative record
and require application of the final agency review rule. Defendants therefore
request that the extra-record evidence and arguments that Plaintiffs included
in their summary judgment motion be stricken and that the parties be
15
Doc. 142.
3
permitted to supplement briefing on their cross-motions regarding the takings
claim.
Defendants’ request is premised on an inaccurate reading of the Court's
January 28, 2016 ruling. The Court did not base jurisdiction on the APA, but
instead, based its finding of jurisdiction on the Supreme Court’s holding in
Eastern Enterprises v. Apfel. 16 The Court discussed the APA only as to the
waiver of sovereign immunity. A waiver of sovereign immunity under the APA
does not convert a constitutional claim into an APA claim.
“[A]lthough [5
U.S.C.] § 702 is codified as part of the APA, this waiver is not limited to suits
under the APA, but applies to any suit, including Constitutional claims.” 17
The Fifth Circuit has held that § 702 waives immunity for claims seeking
review under a non-APA statutory or non-statutory cause of action and that
those claims are not subject to the APA requirements of 5 U.S.C. § 704. 18
Defendant, however, disputes this long-held rule of law based on the
Fifth Circuit’s recent opinion in Belle Co., LLC v. U.S. Army Corp of Engineers,
761 F. 3d. 383 (5th Cir. 2014). Another section of this Court recently outlined
the doctrinal confusion:
The plaintiffs submit that the federal appellate courts,
including the Fifth Circuit, appear to have unanimously embraced
the rule that Section 702's waiver of sovereign immunity extends
to all non-monetary claims against federal agencies and their
officers sued in their official capacity, regardless of whether
plaintiff seeks review of final agency action. Indeed, the Fifth
Circuit recently reaffirmed this view, noting in Alabama–
Couschatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th
Cir. 2014) that “[t]here is no requirement of ‘finality’ for this
waiver to apply.” The court in Alabama–Couschatta Tribe
articulated a bifurcated analysis to determine whether the waiver
524 U.S. 4764 (1998); see Doc. 142.
Anderson v. Jackson, No. 06 3298, 2007 WL 458232, at *11 (E.D. La. Feb. 6, 2007).
18 Alabama–Couschatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir.
16
17
2014).
4
attaches: The court noted that the APA provides a waiver for two
types of claims: (1) claims seeking judicial review pursuant to the
general APA provisions; and (2) claims seeking review under a
separate statutory or non-statutory cause of action. 757 F.3d at
489. The former require “final agency action” under Section 704,
while the latter claims only require “agency action” as defined by
Section 551(13). See id.
However, to add to its doctrinal confusion, more recently, a
different panel of the Fifth Circuit distinguished (indeed,
questioned) Alabama–Couschatta Tribe. See Belle Company,
L.L.C. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir.
2014). Belle instructs that the Section 702 waiver does not apply
to a constitutional claim absent a final agency decision. Belle, 761
F.3d at 395–96. 19
The Court in Alabama-Coushatta Tribe based its holding on its prior
rulings, dating back as far as 1980 in Sheenan v. Army & Air Force Exchange
Services, 619 F. 2d 1132 (5th Cir. 1980). 20 Belle did not clearly overrule this
precedent. Accordingly, this Court elects to follow Sheenan, AlabamaCoushatta Tribe, and the opinions of the other circuit courts. 21 Therefore, the
Court’s January 28 ruling did not change the basis on which it must consider
Plaintiffs’ takings claim, and Defendants’ Motion to Strike is denied.
Entergy Servs., Inc. v. U.S. Dep't of Labor, No. 14-1524, 2014 WL 8507568, at *14
(E.D. La. Dec. 15, 2014).
20 Alabama–Couschatta Tribe of Tex., 757 F.3d at 488.
21 See, e.g., Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 672 (6th Cir. 2013) (“This
Court has not previously addressed specifically the interplay between § 702 and § 704 of the
APA. However, we now join all of our sister circuits who have done so in holding that § 702's
waiver of sovereign immunity extends to all non-monetary claims against federal agencies
and their officers sued in their official capacity, regardless of whether plaintiff seeks review
of “agency action” or “final agency action” as set forth in § 704.”); Michigan v. U.S. Army
Corps of Engineers, 667 F.3d 765, 775 (7th Cir. 2011); Jaffee v. United States, 592 F.2d 712,
719 (3d Cir. 1979).
19
5
B. Plaintiff’s Motion to Supplement the Administrative Record
Next, Plaintiffs ask this Court to supplement the Administrative Record
with certain information they believe warrants inclusion.
Plaintiffs
seek
to
include
two
documents
(1)
the
Specifically,
Comprehensive
Environmental Document (“CED”) prepared by the Corps and (2) an e-mail
that Defendants produced as part of the administrative record but failed to
lodge with the Court.
“[T]he focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the reviewing
court.” 22 Therefore, “[s]upplementation of the administrative record is not
allowed unless the moving party demonstrates ‘unusual circumstances
justifying a departure’ from the general presumption that review is limited to
The Fifth Circuit has stated that
the record compiled by the agency.” 23
supplementation may be permitted when:
(1) the agency deliberately or negligently excluded documents that
may have been adverse to its decision, . . .
(2) the district court needed to supplement the record with
“background information” in order to determine whether the
agency considered all of the relevant factors, or
(3) the agency failed to explain administrative action so as to
frustrate judicial review. 24
The Court will consider each additional document that Plaintiffs seek to
supplement in turn.
Luminant Generation Co. LLC v. U.S. E.P.A., 714 F.3d 841, 850 (5th Cir. 2013).
Medina Cty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th
Cir. 2010).
24 Id.
22
23
6
i.
The CED
The CED “is a document that explains the mitigation process and
mitigation measures implemented during the HSDRRS construction.” 25 The
comprehensive document also explains the Corps’s
analysis of the
environmental impacts of HSDRRS projects. Plaintiffs contend that although
Defendants initially stated that they would not oppose the inclusion of the CED
in the administrative record, they reversed this position at the eleventh hour
after cross-motions had been filed, necessitating the late filing of the instant
motion. Plaintiffs contend that although the CED was only in draft form at
the time the Corps made the final decision at issue in this case, the final CED
is substantially the same as its draft version, and the CED is therefore
evidence that the Corps considered in making its decision. Plaintiffs contend
that the CED meets every exception to the rule that review should be limited
to the administrative record.
Defendants respond that while they did state that they would not oppose
Plaintiffs’ attempt to include the CED in the administrative record, they
believed such would occur in a timely fashion, namely prior to the filing of
motions for summary judgment. Defendants specifically told Plaintiffs that
although they believe the record to be complete as it stands, they would “not
object if Plaintiffs propose supplementing the relevant documents lodged with
the Court.” 26 Plaintiffs, however, never made such a request. Defendants
argue that supplementing the record with the CED at this stage—after crossmotions for summary judgment have been filed—would be prejudicial. In
drafting its motion for summary judgment, Defendants relied only on the
record that had been submitted to the Court, which did not include the CED.
25
26
Doc. 114.
Doc. 114-4, p. 3.
7
Further, Defendants argue that the CED does not meet any of the exceptions
to be included in the administrative record.
This Court agrees with Defendants that Plaintiffs’ late attempt to
supplement the administrative record is prejudicial. Defendants relied on the
record as it was submitted to this Court in preparing their motion for summary
judgment. Plaintiffs did not seek to supplement the record until cross-motions
had been filed. Supplementation at this late hour would be prejudicial to
Defendants, and Plaintiffs have offered no explanation why an earlier request
was not made. Defendants’ statements that they would not oppose such an
addition did not work to automatically include the CED in the administrative
record without such request to the Court. Further, this Court does not find
that the Plaintiffs have demonstrated “unusual circumstances justifying a
departure from the general presumption that review is limited to the record
compiled by the agency.” 27 Plaintiffs have not shown that the CED is adverse
to the Defendants’ decision or that the record is insufficient to explain the
Corps’s decision without it. Accordingly, this Court denies Plaintiffs’ request
to supplement the record with the CED.
ii.
Email
Plaintiffs next seek to supplement the administrative record with an email dated June 27, 2007 from David Walther of the U.S. Fish and Wildlife
Service to Gibb Owen with the Corps. The email was produced as part of the
administrative record by Defendants but was not lodged with this Court. It
supplements an e-mail conversation that is already part of the Record. This
request is denied for the reasons stated above. In addition, this email is not
required to explain the Corps’s actions or to understand the other documents
contained in the record.
27
Id.
8
CONCLUSION
For the foregoing reasons, the Motions are DENIED.
New Orleans, Louisiana, this 2nd day of May, 2016.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
9
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