Atchafalaya Basinkeeper et al v. Bostick et al

Filing 50

ORDER & REASONS: ORDERED that Plaintiffs' motion (Rec. Doc. 39) is GRANTED IN PART. It is GRANTED with respect to standing and laches, but DENIED in all other respects. FURTHER ORDERED that Defendants' motion (Rec. Doc. 43) is GRANTED IN PART. It is DENIED with respect to laches, but GRANTED with respect to Plaintiffs' claim that authorization of the 2012 Project under NOD-13 violated the CWA and NEPA. Signed by Judge Carl Barbier on 6/19/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ATCHAFALAYA BASINKEEPER
ET AL.

CIVIL ACTION

VERSUS

NO: 14-649

BOSTICK ET AL.

SECTION: “J” (5)
ORDER & REASONS

Before the Court is a Motion for Summary Judgment (Rec.
Doc. 39) filed by Plaintiffs the Atchafalaya Basinkeeper and
Louisiana

Crawfish

Producers

Association-West,

Defendants

the

United States Army Corps of Engineers and Lieutenant General
Thomas Bostick (collectively, “the Corps”)’s Cross Motion for
Summary

Judgment

(Rec.

Doc.

43),

Plaintiffs’

reply

and

opposition (Rec. Doc. 44), and Defendants’ reply. (Rec. Doc. 48)
Having

considered

the

motions

and

memoranda

of

counsel,

the

record, and the applicable law, the Court finds that Plaintiffs’
Motion for Summary Judgment should be GRANTED IN PART and that
Defendants’ Cross Motion for Summary Judgment should be GRANTED
IN PART.
FACTS AND PROCEDURAL BACKGROUND
This dispute arises from the Corps’ August 2012 decision to
authorize under a general permit a request to build a ring levee
and access road in the Atchafalaya Basin in Iberville Parish,
Louisiana.

The

Atchafalaya

Basin

contains

multiple

navigable

bayous

and

adjacent

wetlands

that

support

the

local

Cajun

culture. See (Rec. Doc. 39-1, p. 22; Rec. Doc. 39-12, p. 1; Rec.
Doc. 43-1, pp. 2-3). The Louisiana Black Bear’s critical habitat
extends into the Atchafalaya Basin in the northern portion of
Iberville

Parish.

Additionally,

(Rec.

certain

Doc.

43-2,

sections

of

p.

the

15)(citing
Atchafalaya

830). 1

AR

Basin

are

incorporated into the Sherburne Wildlife Management Area. See
(Rec. Doc. 39-12, pp. 1-2; Rec. Doc. 43-2, pp. 13-14).
In

April

authorization

2009,
under

Expert
General

Oil

&

Gas

Permit

13

(Expert

Oil)

of

New

the

sought
Orleans

District of the Corps (NOD-13) to build a ring levee and access
road for its well in the Atchafalaya Basin. (Rec. Doc. 43-1, p.
1) The Corps in June 2009 held a Geologic Review meeting to
review the proposed project and “determine whether there were
any less damaging feasible alternatives for the proposed work.”
Id. at 2 (citing AR 656, 660). Representatives of the Corps, the
Louisiana Geologic Survey (Louisiana Geologic), Expert Oil, and
the Louisiana Department of Wildlife and Fisheries (Louisiana
DWF) participated. Id. (citing AR 656, 660, 682). The Louisiana
Geologic

representative

concluded

1

that

there

were

“no

less

The Court will cite to documents contained in the Court’s record as “Rec.
Doc. [X]” and administrative record documents as “AR [X],” because the
administrative record documents themselves are not contained in the Court’s
record. Instead, because of their voluminous nature, the Corps provided the
Court and Plaintiffs with compact discs containing the documents comprising
the administrative record. (Rec. Docs. 23-2, 24) The administrative record is
incorporated into the Court’s record by Notice of Manual Attachment. (Rec.
Doc. 23-3)

2

damaging

feasible

alternatives.”

Id.

at

3

(citing

AR

660).

Additionally, the owner of the land upon which Expert Oil would
complete the proposed project indicated that it had no objection
to the project or to a requirement that the land be restored
upon abandonment of the well. Id. (citing AR 637). The Corps
withdrew Expert Oil’s application, however, because Expert Oil
failed to meet the mitigation requirement that arose as a result
of its plan to fill wetlands with the proposed project. Id.
(citing AR 373, 375).
On

August

authorization

20,

under

2012,
NOD-13

Expert
to

build

Oil
the

reapplied
road

and

for

Corps

ring

levee

(hereinafter, the “2012 Project”). 2 Id. (citing AR 350, 381-87);
see also (AR 01-03)(“Receipt is acknowledged of your application
dated August 20, 2012 . . . .”). In the application, Expert Oil
indicated that the 2012 Project comprised a 300’ x 300’ ring
levee and an 800’ access road, “a portion of [which would] be
across a previously impacted area which [was] authorized [under
NOD-13].” (AR 382-83) Expert Oil further indicated that it would
construct the proposed ring levee with “native material,” but
stated, “If the well is successful, the road will be permatized
with limestone.” (AR 383) Following the Corps’ delineation of

2

Although it appears that Expert Oil did not formally reapply until August
20, 2012, the administrative record reflects multiple communications between
Expert Oil and the Corps regarding the application and the required
mitigation activities beginning in November 2011. See (Rec. Doc. 43-1, pp. 34)(citing AR 20-28, 231-34, 242-69, 350, 381-87).

3

the wetlands that would be affected, 3 Expert Oil conducted the
requisite mitigation for the “unavoidable wetlands impact of the
2012

Project.”

(Rec.

Doc.

43-1,

p.

4)(citing

AR

20-28).

On

August 24, 2012, the Corps sent Expert Oil a letter in which it
authorized the 2012 Project under NOD-13. Id. (citing AR 01-03).
The letter listed five specific conditions and, in conclusion,
generally

referenced

the

conditions

of

approval

contained

in

NOD-13. (AR 01-02) The Corps furnished a number of entities with
copies of the letter, including the Louisiana DWF. (Rec. Doc.
43-1, p. 4)(citing AR 03).
On March 20, 2014, Plaintiffs exercised their right under
Section 702 of the Administrative Procedure Act (APA) and filed
suit against the Corps, alleging that the Corps’ authorization
of the 2012 Project under NOD-13 violated the terms of NOD-13;
the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq.; and the
National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et
seq. (Rec. Doc. 1) Plaintiffs seek injunctive relief in the form
of an order (1) declaring the Corps’ authorization of the 2012
Project

illegal

and

invalid;

(2)

vacating

the

Corps’

authorization and approval of construction of the 2012 Project
under NOD-13; and (3) enjoining application of NOD-13 to the

3

Expert Oil’s application indicated that the 2012 Project would result in
512’ x 22’ of new wetland impact. See (AR 383). Additionally, a Corps
memorandum on the 2012 Project states, “Approximately 2.32-acres of wetlands
will be permanently impacted with the placement of 267-cubic yards of native
material and 178-cubic yards of limestone.” (AR 04)

4

2012 Project. (Rec. Doc. 1, p. 20) Plaintiffs further request an
award of the costs of litigation, including attorneys’ fees,
under 28 U.S.C. § 2412 and all other appropriate relief. Id.
The parties agreed to resolve the action on cross motions
for summary judgment according to a certain schedule. See (Rec.
Doc. 29). Plaintiffs submitted their Motion for Summary Judgment
(Rec.

Doc.

39)

on

February

26,

2015.

Defendants

filed

their

Cross-Motion for Summary Judgment (Rec. Doc. 43) on March 30,
2015.

Plaintiffs

filed

a

reply

in

support

of

their

motion

together with an opposition to Defendants’ motion on April 27,
2015. (Rec. Doc. 44) Defendants replied on May 18, 2015. (Rec.
Doc. 48)
PARTIES’ ARGUMENTS
A. Plaintiffs’ Motion
Plaintiffs

generally

seek

summary

judgment

declaring

invalid the Corps’ authorization of the 2012 Project under NOD13 and finding that Plaintiffs have standing to bring suit in
this case. First, Plaintiffs argue that the Corps’ application
of NOD-13 to the 2012 Project was arbitrary and capricious in
violating the Clean Water Act and NEPA. The Clean Water Act
permits

discharge

of

dredge

or

fill

materials

into

jurisdictional waters, such as the waters and wetlands of the
Atchafalaya Basin, only in accordance with a proper discharge
permit. Such discharge permit may authorize either an individual

5

project or provide general permission to perform certain similar
acts in a certain area according its terms. When issuing an
individual

permit,

the

Corps

must

provide

public

notice

and

perform an environmental review of the project pursuant to NEPA.
For a general permit, these procedures are required only upon
its initial approval rather than at the start of each project
subsequently

authorized

under

its

terms.

Here,

the

general

permit in question, NOD-13, carried with it terms and conditions
requiring

(1)

approval

of

any

project

within

one

mile

of

a

wildlife management area from the area’s manager, and (2) that
any roads constructed under the permit be degraded and the area
leveled

and

abandoned.

restored
Plaintiffs

after

the

assert

projects

that

the

they

2012

serve

are

Project

was

authorized within one mile of the Sherburne Wildlife Management
Area without permission and features a road made permanent with
limestone. Plaintiffs argue that, in this way, the 2012 Project
violates the terms of NOD-13, the general permit under which it
was

authorized.

authorization

of

Plaintiffs
the

2012

therefore
Project

contend

under

that

NOD-13

the

Corps’

violates

the

Clean Water Act.
Plaintiffs also argue that the application of NOD-13 to the
2012 Project violates both NEPA and the Clean Water Act because
it

circumvents

the

environmental

review

and

public

notice

requirements of those Acts. The Corps performs NEPA review for

6

general permits at the issuance of the general permit rather
than

during

requires

approval

the

of

Corps

the

to

individual

consider

the

project.

direct,

This

review

indirect,

and

cumulative environmental impacts of the type of activity that is
authorized by the general permit. Here, Plaintiffs argue that
the Corps misapplied the general permit to a project that goes
beyond

the

scope

of

the

authorizes.

Thus,

the

activities

Corps

has

that

not

the

general

actually

permit

considered

the

direct, indirect, and cumulative environmental impacts of the
type that the 2012 Project presents. Specifically, the Corps has
not conducted an analysis of the impacts of the “permatized”
road; placement of the permitted structure within one mile of a
wildlife management area; and the cumulative effects of another
road

permitted

Project”),
failure

under

such

to

as

NOD-13
the

degrade

a

in

2000

unpermitted
previous,

(hereinafter,
filling

nearby

of

road

the

“2000

bayous,

the

following

the

abandonment of the well it served, and the unpermitted limestone
reinforcement

of

that

road,

with

those

of

the

2012

Project.

Further, the Corps would have been forced to conduct such an
analysis of the 2012 Project had they permitted it under an
individual

permit,

which

Plaintiffs

argue

was

required.

Plaintiffs also assert that, if properly considered under the
Acts

for

an

individual

permit,

the

Corps

would

have

required to issue public notice regarding the 2012 Project.

7

been

Next, Plaintiffs contend that they meet the requirements
for organizational standing and, therefore, have the authority
to bring the instant action. An organization may sue on behalf
of its members if its members have standing, the suit is germane
to its purpose, and the claims asserted and relief requested do
not

require

the

participation

of

its

individual

members.

Individuals have standing if they have suffered an injury in
fact, the injury is fairly traceable to the defendant’s act, and
it is likely to be redressed by a favorable opinion from the
court. Here, Plaintiffs argue that their individual members have
standing to sue. Affidavits submitted with the motion reveal
that Plaintiffs’ members visit the affected area often and that
the 2012 Project lessened the aesthetic and recreational value
of the area. The authorization of the 2012 Project is traceable
to the Corps’ actions. A decision from this Court nullifying the
permit

or

otherwise

environmental
Plaintiffs

the

advanced

by

a

likely

would

effects

argue

protect

requiring

that

their

Atchafalaya
the

instant

more

purpose

Basin,
action.

thorough

redress
at

which

review

the

least

injury.
in

purpose

Finally,

of

part
is

Plaintiffs

its

Next,
is

to

directly
maintain

that neither their claims nor requests for relief require the
participation of any individual members, because they do not
seek

damages.

Thus,

Plaintiffs

8

assert

that

they

satisfy

the

requirements

of

organizational

standing

and

are

entitled

to

summary judgment on the issue.
B. The Corps’ Motion
The

Corps

moves

for

summary

judgment

dismissing

with

prejudice all of Plaintiffs’ claims. First, the Corps argues
that the doctrine of laches bars Plaintiffs’ claims. To invoke
laches, a defendant must show a delay in asserting a claim, a
lack of excuse for such delay, and resulting prejudice. Here,
Plaintiffs

waited

until

sixteen

months

after

observing

construction on the 2012 Project to file their suit, have failed
to offer any excuse for such delay, and upholding Plaintiffs’
claims would prejudice the Corps by undermining the permitting
process and Expert Oil because it has completed the project.
Thus,

the

Corps

contends

that

the

doctrine

of

laches

bars

Plaintiffs’ claims.
Second, the Corps argues that Plaintiffs’ claims lack merit
because it properly verified and approved the 2012 Project under
NOD-13. “NOD-13 applies to projects for ‘dredging and deposits
of dredged and/or fill material in wetlands of the New Orleans
District

of

the

Corps

for

construction

of

oilfield

roads,

drilling locations, pits, levees, and associated facilities.’”
(Rec. Doc. 43-2, p. 11)(citing AR 88). Thus, the 2012 Project
fit

within

the

category

of

projects

authorized

by

NOD-13.

Further, the size of the levee and road comprising the 2012

9

Project

are

within

the

limits

of

NOD-13.

Lastly,

the

Corps

collected and reviewed plans and maps related to the project,
conducted a meeting with Louisiana Geologic to determine that no
less damaging feasible alternative existed, demanded mitigation
from Expert Oil, and received permission from the owner of the
affected property, all in satisfaction of NOD-13.
The Corps argues that Plaintiffs’ claims to the contrary
are without merit and fail to show that the Corps’ decision was
arbitrary, capricious, or otherwise not in accordance with law.
The Corps insists that the 2012 Project is not located within
one mile of the Sherburne Wildlife Management Area. The patch of
land within one mile of the 2012 Project that Plaintiffs argue
is

part

of

the

Sherburne

Wildlife

Management

Area

actually

consists of two parcels of property owned by the United States
since 1991. The Corps further disputes Plaintiffs’ allegation
that

the

2012

Project

is

located

in

and

would

damage

the

Louisiana Black Bear Critical Habitat. The Corps asserts that
only the portion of Iberville Parish to the north if Interstate
10 is part of the habitat, and the 2012 Project is south of
Interstate 10. The Corps concludes that the 2012 Project does
not threaten the habitat because it is not located within its
bounds. Additionally, the Corps stresses that the addition of
limestone to the access road does not truly render the road
permanent, because the limestone is removable and, in fact, must

10

be removed under the conditions of NOD-13 at the conclusion of
the project. Allowing the 2012 Project to connect with the 2000
Project similarly does not violate the terms of NOD-13 because
the Corps determined that use of those facilities was the least
damaging feasible alternative as necessary under NOD-13. Thus,
Plaintiffs’ contention that the 2012 Project violates NOD-13 is
without merit.
Third, the Corps asserts that Plaintiffs’ NEPA claims are
meritless and moot. The Corps conducted the only environmental
review of NOD-13 required by NEPA when it issued NOD-13. The
Corps

argues

Project.

that

Thus,

no

it

properly

further

NEPA

applied
review

NOD-13
was

to

the

required

2012

when

it

authorized the 2012 Project. Plaintiffs’ NEPA claims are without
merit. Additionally, Expert Oil has completed construction of
the

2012

Project.

environmental

NEPA

effects

requires

of

future

prospective
events.

The

review
Corps

of

the

cannot

prospectively consider the effects of a project that has already
been constructed. Thus, Plaintiff’s NEPA claims are moot.
C. Plaintiffs’ Opposition and Reply
Plaintiffs

make

three

major

arguments

in

opposition

and

reply. First, Plaintiffs dispute the Corps’ contention that the
doctrine

of

laches

bars

their

claims.

Second,

Plaintiffs

reassert that the Corps’ misapplication of NOD-13 to the 2012

11

Project was arbitrary, capricious, or otherwise contrary to law.
Finally, Plaintiffs argue that their NEPA claim is not moot.
Plaintiffs argue that a laches defense is inappropriate in
this

case.

The

Corps’

misapplication

of

NOD-13

to

the

2012

Project avoided any requirement of public notice. Consequently,
Plaintiffs

did

not

notice

the

2012

Project

until

late

2012,

after Expert Oil completed construction. Plaintiffs were then
entitled to take the time, through Freedom of Information Act
requests, to learn about the project before filing suit. The
violations of the Clean Water Act and NEPA were evident only
after their investigation. There was therefore no inexcusable
delay before Plaintiffs filed suit in March 2014. Moreover, to
satisfy the third element of the laches doctrine, the Corps must
show not only that there was prejudice but that the prejudice
resulted from Plaintiffs’ delay. Here, Plaintiffs did not learn
of

the

2012

Project

until

after

Expert

Oil

completed

construction, and therefore, the delay cannot be the cause of
any prejudice to Expert Oil. Further, Plaintiffs argue that it
is

not

prejudicial

compliance

with

themselves

that

the

to

the

law;

undermine

Corps
it

its

is

to
the

require
Corps’

permitting

it

to

act

unlawful

process

rather

in

acts
than

Plaintiffs’ attempt to hold the Corps accountable. Plaintiffs
therefore maintain that the laches doctrine does not bar their
claims.

12

Next, Plaintiffs again argue that the Corps’ authorization
of the 2012 Project under NOD-13 was arbitrary and capricious
and

in

violation

violates

the

of

the
of

terms

terms

of

NOD-13

NOD-13.

by

The

2012

including

Project

“permatized,”

limestone roads; being located within one mile of the Sherburne
Wildlife Management area without proper permission; connecting
to the 2000 Project road construction without considering the
illegal status of that construction; and failing to consider the
impact of the 2012 Project on the Louisiana Black Bear
Finally, Plaintiffs dispute the Corps’ assertion that their
NEPA

claim

construction

is

moot

of

the

because
2012

Expert

Project.

Oil

already

Rather,

completed

meaningful

relief,

such as restoration and mitigation, remains available despite
completion of the 2012 Project. Further, Plaintiffs argue that
the

Corp’s

abuse

of

NOD-13

is

an

issue

that

is

capable

of

repetition, yet evading review. There is a possibility that the
Corps will again misapply the general permit to a project in the
Atchafalaya
These

acts

Basin,
evade

which
review

will

further

because

when

injure
the

the

Corps

Plaintiff.

authorizes

a

project under NOD-13 it does not issue public notice, making it
likely that Plaintiffs will not learn of each new project until
after

construction

is

complete

and

the

damage

is

Plaintiffs therefore argue that their claims are not moot.

13

done.

D. The Corps’ Reply
In reply to Plaintiffs’ opposition, the Corps reurges its
arguments relating to the doctrine of laches, the validity of
its approval of the 2012 Project under NOD-13, and the mootness
of

Plaintiffs’

NEPA

claims.

First,

the

Corps

argues

that

Plaintiffs’ opposition bolsters its laches argument, because it
reveals that the 2012 Project was not actually complete when
Plaintiffs

discovered

it.

Specifically,

Plaintiffs

have

not

shown that Expert Oil had “begun the process of drilling or
installing a well and exploring for oil.” (Rec. Doc. 48, p. 2)
Second, the Corps argues that its approval of the 2012 Project
under NOD-13 was proper, because the terms of the permit will
require restoration upon abandonment, the 2012 Project is not in
fact

located

within

one

mile

of

the

Sherburne

Wildlife

Management Area, and Plaintiffs’ claims that the 2012 Project
adversely
habitat

affects
are

the

Louisiana

unfounded.

Black

Finally,

the

Bear

and

Corps

its

critical

reasserts

that

Plaintiffs’ NEPA claims are moot.
LEGAL STANDARD
When presented with a motion for summary judgment, a court
normally considers whether the record, “viewed in the light most
favorable to the non-moving party,” evinces a genuine issue of
material

fact.

Tex.

Committee

on

Natural

Resources

v.

Van

Winkle, 197 F. Supp. 2d 586, 595 (N.D. Tex. 2002)(citing Fed. R.

14

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); Hill v. London, Stetelman, & Kirkwood, Inc., 906 F.2d
204, 207 (5th Cir. 1990)). Only if the court answers the inquiry
in the negative will the moving party be entitled to judgment as
a matter of law. Id. This formula adjusts, however, when it
arises in the context of judicial review of an administrative
agency’s decision. Id. In such cases, the “motion for summary
judgment

stands

in

a

somewhat

unusual

light,

in

that

the

administrative record proves the complete factual predicate for
the

court’s

review.”

Id.

(internal

quotation

marks

omitted)(citing Piedmont Envtl. Council v. United States Dep’t
of Transp., 159 F. Supp. 2d 260, 268 (W.D. Va. 2001)). The
movant’s burden is therefore “similar to his ultimate burden on
the merits.” Id.
Despite these necessary alterations to the usual Federal
Rule of Civil Procedure Rule 56 analysis, courts have held that
summary judgment remains “an appropriate procedure for resolving
a challenge to a federal agency’s administrative decision when
review is based on the administrative record.” Fund for Animals
v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995). When reviewing
an

administrative

“determine

whether

agency’s
as

a

decision,
matter

of

the

district

law,

court

evidence

in

must
the

administrative record permitted the agency to make the decision
it did, and summary judgment is an appropriate mechanism for

15

deciding

the

legal

question

of

whether

an

agency

could

reasonably have found the facts as it did.” The Sierra Club v.
Dombeck, 161 F. Supp. 2d 1052, 1064 (D. Ariz. 2001); see City &
Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th
Cir. 1997).
A court will set aside or otherwise disturb nonadjudicatory
agency action if the party pursuing judicial review shows that
the agency “action, findings, and conclusions” are “arbitrary,
capricious,

an

abuse

of

discretion,

or

otherwise

not

in

accordance with law” or if they were made “without observance of
procedure required by law.” 4 5 U.S.C. § 706(2). “To make this
finding the court must consider whether the decision was based
on a consideration of the relevant factors and whether there has
been a clear error of judgment. Although this inquiry into the
facts is to be searching and careful, the ultimate standard of
review is a narrow one. The court is not empowered to substitute
its

judgment

for

that

of

the

agency.”

Citizens

to

Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)(citations
omitted); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The
burden

of

proving

that

an

agency

4

decision

was

arbitrary

or

Plaintiffs seek judicial review pursuant to Section 702 of the APA, which
allows those who are adversely affected by agency action, including the U.S.
Army Corps of Engineers, to obtain judicial review of that action. 5 U.S.C. §
702. Section 706 sets forth the scope of judicial review, including the
arbitrary and capricious standard. 5 U.S.C. § 706.

16

capricious [or made without proper procedures] rests with the
party seeking to overturn the agency decision.” Van Winkle, 197
F. Supp. 2d at 596.
DISCUSSION
A. Whether Plaintiffs Have Standing
Because standing is a jurisdictional issue, the Court will
address it first. See, e.g., Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 101-02 (1998). The Court will examine
whether

associational

standing

exists

in

this

case,

because

Plaintiffs are organizations. “An association has standing to
bring

suit

on

behalf

of

its

members

when

its

members

would

otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither
the

claim

asserted

nor

the

relief

requested

requires

the

participation of individual members in the lawsuit.” Friends of
the

Earth,

Inc.

v.

Laidlaw

Envtl.

Serv.,

528

U.S.

167,

181

(2000).
First, an individual plaintiff has standing to sue in its
own right when “(1) it has suffered an ‘injury in fact’ . . . ;
(2) the injury is fairly traceable to the challenged action of
the

defendant;

and

(3)

it

is

likely,

as

opposed

to

merely

speculative, that the injury will be redressed by a favorable
decision.” Id. at 180-81. To be an “injury in fact,” the injury
must be “concrete and particularized” and “actual or imminent.”

17

Id. at 180. “[E]nvironmental plaintiffs adequately allege injury
in fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the
area will be lessened’ by the challenged activity.” Id. at 183.
Here, Plaintiffs attach to their motion affidavits from three of
their individual members. Each of these affidavits reflects the
affiant’s

habitual

use

enjoyment—aesthetically

of
and

the

affected

areas

recreationally—of

and

such

lessened
use

as

a

result of the 2012 Project. 5 The Court therefore concludes that
Plaintiffs have alleged injury in fact. Next, it is clear that
this

injury

is

“fairly

traceable”

to

the

challenged

action,

namely, the permitting of the 2012 Project. Finally, because the
Court has the authority to “hold unlawful and set aside” the
permit for the 2012 Project if it determines that the Corps
acted arbitrarily or capriciously or without proper procedure in
granting the permit, it is likely that a favorable opinion from
this Court will redress the injury. Thus, Plaintiffs’ individual
members would have standing to sue in their own right.

5
Jody Meche, who is a member of both the Atchafalaya Basinkeeper and the
Louisiana Crawfish Producers’ Association-West, is a crawfisherman who works
and spends leisure time in the Atchafalaya Basin. (Rec. Doc. 39-2, p. 1) He
testified that the 2012 Project “destroyed [the] wetlands and made the area
less beautiful.” Id. at 5. Mike Bienvenu is the president of the Louisiana
Crawfish Producers’ Association-West, and he testified that the 2012 Project
“destroys the beauty of the wetlands and makes the area uglier,” resulting in
reduced enjoyment of the area. (Rec. Doc. 39-3, pp. 1, 4) Finally, Dean
Wilson, Executive Direct of the Atchafalaya Basinkeeper, testified that the
2012 Project “made the area less beautiful to see” and inhibits recreational
activities in the area. (Rec. Doc. 39-4, pp. 1, 3-4)

18

Second, “the interests at stake” must be “germane to the
organization’s
germaneness

purpose.”

Laidlaw,

requirement

helps

528

U.S.

ensure

that

at

181.

an

“The

association,

through its goals and purposes will have a sufficient interest
in the outcome of litigation to serve as the defendant’s natural
adversary.” Apalachicola Riverkeeper v. Taylor Energy Co. LLC,
No.

12-337,

2013

2013)(quoting

WL

Concerned

1897142,
Citizens

at

*9

Around

(E.D.
Murphy

La.
v.

May

4,

Murphy

Oil

USA, Inc., 686 F. Supp. 2d 663, 673-74 (E.D. La. 2010)). Here,
Plaintiffs have an interest in protecting the ecosystem of the
Atchafalaya

Basin,

the

area

affected

by

the

2012

Project.

Atchafalaya Basinkeeper’s purpose is “to preserve the ecosystem
of the Atchafalaya Basin for present and future generations.”
(Rec. Doc. 39-4, p. 1) The purpose of the Louisiana Crawfish
Producers Association-West is “to protect water quality in the
Atchafalaya

Basin

in

order

to

promote

a

healthy,

thriving

habitat for crawfish and other fish and wildlife living in the
Atchafalaya Basin and throughout Louisiana.” (Rec. Doc. 39-3, p.
1)

The

Court

therefore

concludes

that

Plaintiffs

have

a

sufficient interest in the outcome of the litigation to satisfy
the second requirement for associational standing.
Third, the asserted claims and requested relief cannot be
of the sort that would require the participation of individuals.
Here,

Plaintiffs

seek

injunctive

19

relief

and

the

costs

of

litigation. Such relief is not particular to any person and,
therefore,

does

not

require

the

participation

of

individual

members. It is appropriately resolved in the group context. See
Apalachicola Riverkeeper, 2013 WL 1897142, at *9 (quoting Hunt
v.

Washington

(1977)).

The

State
Court

Apple
finds

Adver.
that

Comm’n,

432

Plaintiffs

U.S.

344

satisfied

have

333,

the

requirements of associational standing. 6 Accordingly, the Court
grants in part Plaintiffs’ motion for summary judgment.
B. Whether the Doctrine of Laches Bars Plaintiffs’ Claims
Defendants

argue

that

the

doctrine

of

laches

bars

Plaintiffs’ claims. Plaintiffs counterargue that Defendants have
not shown unreasonable delay or resulting prejudice as required
to

invoke

doctrine
asserting

the

of
a

doctrine.

laches,
right

a
or

To

bar

defendant
claim;

litigation
must

(2)

show

that

by
“(1)

the

invoking
a

delay

the

delay

in

was

not

excusable; and (3) that there was undue prejudice to the party
against whom the claim is asserted.” Envtl. Def. Fund, Inc. v.
Alexander, 614 F.2d 474, 478 (5th Cir. 1980)(quoting Save Our

6
The Court also finds that Plaintiffs satisfy the prudential standing
doctrine. See National Credit Union Administration v. First National Bank &
Trust Co., 522 U.S. 479, 488 (1998). “For a plaintiff to have prudential
standing under the APA, ‘the interest sought to be protected by the
complainant [must be] arguably within the zone of interests to be protected
or regulated by the statute . . . in question.” Id. (quoting Association of
Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153
(1970)). Undoubtedly, Plaintiffs’ “recreational use and aesthetic enjoyment”
of the Atchafalaya Basin are “among the sorts of interests that [the Clean
Water Act and NEPA] were specifically designed to protect.” See Lujan v.
National Wildlife Federation, 497 U.S. 871, 886 (1990); Save Ourselves, Inc.
v. U.S. Army Corps of Engineers, 958 F.2d 659, 661 (1992).

20

Wetlands, Inc. (SOWL) v. U.S. Army Corps of Engineers, 549 F.2d
1021, 1026 (5th Cir. 1977)). The decision to bar an action under
the doctrine of laches “depends upon the circumstances of [the]
case and is ‘a question primarily addressed to the discretion of
the trial court.’” Id. (quoting Gardner v. Panama R.R. Co., 342
U.S. 29, 30 (1951). “Mere neglect to challenge action is not
sufficient

to

establish

laches

in

any

case.

When

government

action is involved, members of the public are entitled to assume
that public officials will act in accordance with law.” Id. at
479 (citing Save Our Wetlands, 549 F.2d at 479). Thus, “the
government must show that those whom it seeks to bar by invoking
laches were or should have been aware of the questionable nature
of the governmental activity.” Id.
First,

Defendants

must

show

that

Plaintiffs

delayed

in

filing the instant lawsuit. Defendants rely on the affidavits
that Plaintiffs submitted with their motion, which suggest that
they first witnessed certain elements of the 2012 Project in
late

2012.

(Rec.

Doc.

39-2,

pp.

4-5)

Defendants

note

that

Plaintiffs filed the instant lawsuit on March 20, 2014. (Rec.
Doc. 1) Plaintiffs do not appear to deny these assertions. The
Court concludes that Defendants have satisfied the first element
for the invocation of laches.
Second, Defendants must show that the above-described delay
was not excusable. Defendants argue that Plaintiffs’ delay was

21

not

excusable,

because

Plaintiffs

were

already

working

with

their counsel on other legal matters. (Rec. Doc. 43-2, p. 10)
Plaintiffs assert that their delay in filing this lawsuit is
attributable

to

the

Corps’

decision

to

misapply

the

general

permit, NOD-13, to the 2012 Project, which allowed the Corps to
avoid providing public notice of the 2010 Project. (Rec. Doc.
44,

p.

4)

employ

Plaintiffs

requests

Information

for

Act

argue

that

information

(FOIA)

to

they

were

pursuant

investigate

then

to

the

entitled

to

Freedom

of

the

project

and

any

possible claim before actually taking legal action. Id. at 6-7.
Plaintiffs indicate that they made requests pursuant to FOIA in
November

2012

and,

later,

under

Louisiana

public

records

provisions on April 15, 2013. Id. at 7. Courts have noted the
import

of

prepare

allowing

their

“powerful

and

plaintiffs

cases

before

perverse

the

time

filing

them

incentive

to
to

for

investigate
avoid

plaintiffs

and

creating
to

a

file

premature and even frivolous suits to avoid the invocation of
laches.” See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps
of

Engineers,

781

F.3d

1271,

1285

(11th

Cir.

2015).

It

is

evident that part of Plaintiffs’ delay was a result of their
investigation of the 2012 Project. The Court cannot conclude
that

Plaintiffs’

delay

in

this

“complex

environmental

litigation” was unreasonable or not excusable. See id. Moreover,
Plaintiffs filed suit within the general six-year statute of

22

limitations for challenges to government action, see 28 U.S.C. §
2401, and Defendants have not shown when Plaintiffs became or
should

have

become

aware

that

the

2012

Project

could

be

“questionable” in nature. Alexander, 614 F.2d at 479. Because
the

Court

finds

that

Defendants

have

failed

to

show

that

Plaintiffs’ delay was not excusable, the Court will not apply
the doctrine of laches to bar Plaintiffs’ suit in this case.
C.

Whether the Authorization of the 2012 Project Was Unlawful
The

Clean

Water

Act

prohibits

“the

discharge

of

any

pollutant by any person.” 33 U.S.C. § 1311(a). “‘The discharge
of a pollutant’ is defined broadly to include any addition of
any pollutant to navigable waters[,] and ‘pollutant’ is defined
broadly to include not only traditional contaminants but also
solids such as ‘dredged spoil, . . . rock, sand, [and] cellar
dirt.’”

Rapanos

v.

United

States,

547

U.S.

715,

723

(2006)(citing 33 U.S.C. § 1362(6), (12)). This prohibition also
extends

to

“wetlands

adjacent

to

waters.”

40

C.F.R.

§

230.3(s)(7).
The CWA provides exceptions to this broad prohibition. 33
U.S.C. § 1311(a). Relevant here, “Section 1344 authorizes the
Secretary

of

the

Army,

acting

through

the

Corps,

to

‘issue

permits . . . for the discharge of dredged or fill material into
the navigable waters at specified disposal sites.’” Rapanos, 547
U.S. at 723 (citing 33 U.S.C. § 1344(a), (d)). The Corps may

23

issue an individual permit for the discharge of dredged or fill
material after providing public notice and an opportunity for
public hearings. 33 U.S.C. § 1344(a). Alternatively, the Corps
may grant a general permit:
In carrying out his functions relating to the
discharge of dredged or fill material under this
section, the [Secretary of the Army, acting through
the Chief of Engineers] may, after notice and
opportunity for public hearing, issue general permits
on a State, regional, or nationwide basis for any
category of activities involving discharges of dredged
or fill material if the Secretary determines that the
activities in such category are similar in nature,
will cause only minimal adverse environmental effects
when performed separately, and will have only minimal
cumulative adverse effect on the environment.
Id. § 1344(e)(1). The Corps conducts a review of the proposed
project according to NEPA when it issues either the individual
or

general

permit.

33

U.S.C.

§

1344(e)(1);

33

C.F.R.

§§

325.2(a)(2), (4), (e)(2), 325.3. When the Corps later authorizes
projects under the general permit, it does not conduct another
NEPA review.
Plaintiffs

argue

that

the

application

of

the

general

permit, NOD-13, to the 2012 Project violates the CWA and NEPA,
because

the

2012

Project

exceeds

the

scope

of

NOD-13.

Thus,

Plaintiffs argue that the Corps could only authorize the dredge
and

fill

activities

of

the

2012

Project

under

an

individual

permit. The specific conditions of NOD-13 that Plaintiffs argue
the 2012 Project violates are as follows:

24

1) Special condition (u), which requires that “[r]oad
fills . . . shall be degraded when the locations which
they were installed to serve are abandoned [and the
area must be] leveled and restored to as near preproject conditions as practicable.” (AR 92)
2) Condition (a), which prohibits work “[i]n or within
one mile of the boundaries of any . . . wildlife
[management area] without approval of the respective
[wildlife] management area . . . manager.” (AR 88)
3) Special
condition
(e),
which
prohibits
projects
authorized under the permit to “connect with other
fill authorized by this general permit [or be located]
within one-half mile of an existing or restored road
approved by this general permit, unless [it is] the
least damaging practicable alternative.” (AR 90)
4) Condition (d), which prohibits works “[w]ithin any
area where the activity is likely to adversely affect
federally listed threatened or endangered species,
[such as the Louisiana Black Bear,] or that is likely
to destroy of adversely modify the critical habitat of
such species.” (AR 88)
Although it is close, the Court concludes that, ultimately, the
2012 Project does not violate the terms of NOD-13. First, the
terms and conditions of the general permit are referenced and
incorporated
Although

into

Plaintiffs

the

authorization

argue

that

the

for

the

access

2012
road

Project.
has

been

“permatized” or made permanent with limestone, the Corps points
out that the permit holder is obligated to remove

the limestone

road at the conclusion of the project. NOD-13 does not appear to
require the use of a particular type of material for the access
road, but rather requires that the road fills be degraded and
the area restored upon abandonment. This end can be achieved
although

the

road

is

currently

“permatized”

with

limestone.

Second, Plaintiffs have not met their burden of showing that the

25

authorization of the 2012 Project under NOD-13 was arbitrary and
capricious because it violated NOD-13’s prohibition on projects
within

one

mile

of

a

wildlife

management

area

without

its

manager’s approval and, therefore, the CWA and NEPA. The Corps
has submitted evidence that the small tract of property that
Plaintiffs contend is part of the Sherburne Wildlife Management
Area

is

in

fact

property

that

is

owned

by

the

Corps

of

Engineers. Based on this evidence, the Corps concluded that the
2012 Project is not within one mile of the Sherburne Wildlife
Management Area.

Third, the Corps may authorize under NOD-13

projects contiguous to an existing work authorized under NOD-13
if

the

Corps

determines

that

it

is

the

“least

damaging

practicable alternative,” and it appears the Corps so concluded.
(AR 656, 660) The geological meeting produced that conclusion,
i.e., there were no less damaging feasible alternative routes.
Finally, the Court cannot conclude that the authorization of the
2012 Project necessarily violates condition (d) of NOD-13 as a
result of its location within a parish that also includes some
of a threatened or endangered species’ critical habitat, namely,
that of the Louisiana Black Bear. The record demonstrates that
the

Project

is

located

south

of

Interstate

10

and

does

not

include the portion of Iberville Parish that encompasses the
Black

Bear’s

habitat,

which

falls

elevated Interstate 10.

26

on

the

north

side

of

the

In conclusion, the Court has reviewed the administrative
record and holds that the Corps’ decision to authorize the 2012
Project

under

NOD-13

does

not

violate

the

CWA

and

NEPA

by

exceeding the scope of NOD-13. Consequently, the Court concludes
that the Corps was not arbitrary and capricious in authorizing
the 2012 Project under NOD-13, and the Corps’ decision must be
upheld. Although the Court finds that the Corps’ actions were
lawful based upon the Administrative Record in this case, the
Court notes its concern about the procedures that the Corps has
employed in this case. In essence, the Corps uses a “general
permit” issued originally in 1981 as the basis to approve a new
project in 2012 without requirement for an in-depth NEPA review
and without any public notice or opportunity for public comment.
Although counsel for Plaintiffs acknowledge that the applicable
federal statutes and regulations allow the Corps to proceed in
this manner, it strikes this Court as bad public policy to not
allow, at a minimum, some type of public notice and comment in
this situation. While not legally mandated to do so, there is
nothing to preclude the Corps from allowing this minimal public
involvement, especially on matters involving the degradation of
sensitive wetlands. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion (Rec. Doc. 39)
is GRANTED IN PART. It is GRANTED with respect to standing and
laches, but DENIED in all other respects.

27

IT IS FURTHER ORDERED that Defendants’ motion (Rec. Doc.
43) is GRANTED IN PART. It is DENIED with respect to laches, but
GRANTED with respect to Plaintiffs’ claim that authorization of
the 2012 Project under NOD-13 violated the CWA and NEPA.
New Orleans, Louisiana this 19th day of June, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

28