Abita Springs Town v. U.S. Army Corps of Engineers et al

Filing 64

ORDER AND REASONS: ORDERED that Defendants' Motion to Continue Administrative Record Due Date and Further Proceedings (Rec. Doc. 59) is GRANTED in part and DENIED in part. The deadline for filing the administrative record is extended by thir ty days. IT IS FURTHER ORDERED that Defendants file the administrative record on or before October 20, 2015. IT IS FURTHER ORDERED that Plaintiff's First Motion for Partial Summary Judgment Vacating the U.S. Army Corps' Permit (Rec. Doc. 18) is reset for hearing on Wednesday, December 2, 2015, at 9:30 a.m. Plaintiff is ordered to file any supplement to its motion on or before November 4, 2015. Defendants are ordered to file any response to Plaintiff's motion on or before November 16, 2015. Signed by Judge Carl Barbier on 9/16/15.(sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TOWN OF ABITA SPRINGS

CIVIL ACTION

VERSUS

NO: 15-451

U.S. ARMY CORPS OF
ENGINEERS, ET AL

SECTION: “J”(4)

ORDER & REASONS
Before the Court is a Motion to Continue Administrative
Record Due Date and Further Proceedings (Rec. Doc. 59) filed by
Defendants, United States Army Corps of Engineers, Lieutenant
General Thomas P. Bostick, John M. McHugh, and Martin S. Mayer
(collectively, the “Corps”) and an opposition thereto (Rec. Doc.
63)

filed

by

Plaintiff,

the

Town

of

Abita

Springs.

Having

considered the motion and legal memoranda, the record, and the
applicable

law,

the

Court

finds

that

the

motion

should

be

GRANTED in part and DENIED in part.
FACTS AND PROCEDURAL BACKGROUND
This dispute arises from the Corps’ decision to grant Helis
Oil & Gas Company, LLC (“Helis Oil”) a permit to dredge and fill
wetlands under Clean Water Act § 404, 33 U.S.C. § 1344. (Rec.
Doc.

18-4.)

Abita

Springs

filed

its

initial

complaint

and

commenced this action on February 12, 2015, though the Corps did
not issue the permit until June 8, 2015. (Rec. Docs. 1, 15.)
Abita

Springs

filed

its

First

Amended

Complaint

on

June

26,

2015, challenging the newly-issued permit. (Rec. Doc. 15.)
The

claims

in

this

case

arise

under

the

Administrative

Procedure Act, 5 U.S.C. § 551 et seq. (“APA”); the Clean Water
Act,

33

U.S.C.

§

1251

et

seq.

(“CWA”);

and

the

National

Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”). In
its First Amended Complaint, Abita Springs claims that the Corps
followed

unlawful

procedures,

failing

to

allow

for

public

comment on more than 500 pages of documentation submitted by
Helis Oil to complete its application after the close of the
public comment period. (Rec. Doc. 15, at 2.) Abita Springs also
claims

that

the

Corps

issued

the

permit

in

violation

of

regulations that prohibit the Corps from authorizing destruction
of wetlands unless the Corps reasonable concludes that there is
no “practical alternative” that would have less adverse impact
on the aquatic ecosystem and that the Corps failed to conduct a
lawful analysis of alternatives. Id. at 1-2.
On July 9, 2015, Abita Springs filed its First Motion for
Partial Summary Judgment Vacating the U.S. Army Corps’ Permit,
originally set for hearing with oral argument on July 29, 2015.
(Rec. Doc. 18.) The Corps filed a Motion to Continue Plaintiff’s
First Motion for Partial Summary Judgment, which Abita Springs
opposed,

arguing

that

Abita

Springs’

motion

was

premature

because the administrative record had not yet been compiled and
lodged. (Rec. Doc. 28-1, at 2.) According to the Corps, the

2

process

to

compile

the

administrative

record

will

take

approximately 120 days. (Rec. Doc. 24-2, at 2.)
The Court granted the Corps’ motion on July 22, 2015, and
continued the hearing on Abita Springs’ motion until October 23,
2015. (Rec. Doc. 39.) In addition, the Court ordered that the
Corps file the administrative record on or before September 20,
2015; that is, within sixty days after the Court’s order. Id. at
2.
On September 4, 2015, the Corps filed the instant Motion to
Continue Administrative Record Due Date and Further Proceedings
(Rec. Doc. 59). Abita Springs opposed the motion on September
14, 2015. (Rec. Doc. 63.) The Corps’ motion is currently set for
submission on September 23. However, because the deadline for
the Corps to file the administrative record is September 20,
2015, the Court now considers the motion on the briefs on an
expedited basis.
PARTIES’ ARGUMENTS
The Corps filed the instant motion because “it has become
apparent that [the Corps] will be unable to complete preparation
of the administrative record by the ordered due date.” (Rec.
Doc. 59-1, at 1.) The Corps claims to have gathered “most” of
the records that will be contained in the administrative record.
(Rec.

Doc.

59-2,

“approximately

1800

at

2.)

records

To

date,

the

(including

3

Corps

more

has

than

gathered

200

public

comments) from six records custodians.” Id. However, “[s]everal
other

records

custodians

are

continuing

their

search

for

records.” Id. Therefore, additional records may be added as the
review process continues. Id. Furthermore, the Corps must create
an

index

for

each

record, 1

individual

and

the

records

must

undergo legal and quality-assurance reviews before production.
The Corps requests a sixty-day extension of the deadline
for it to lodge the administrative record, consistent with its
original

120-day

estimate.

Likewise,

the

Corps

asks

for

commensurate extensions of the summary judgment deadlines and
hearing. (Rec. Doc. 59-1, at 2-3.) The Corps argues that Abita
Springs will not be prejudiced by a continuance because Helis
Oil

is

currently

unable

to

proceed

with

drilling

due

to

litigation in other courts. Id. at 1.
In

opposition,

Abita

Springs

argues

that

the

Corps

has

failed to demonstrate good cause for a delay. (Rec. Doc. 63, at
1.) According to Abita Springs, the Corps desires to delay the
proceedings “so it can ‘search’ for documents it had in front of
it when it issued the permit.” Id. at 2. Such a search “suggests
an

effort

to

shore

up

the

record

in

support

of

the

Corps’

decision.” Id. at 3. Abita Springs argues that if the Corps

1

The Corps intends to create an electronic index of the record that will be
hyperlinked to the record documents themselves in order to ease review by
Abita Springs and the Court. (Rec. Doc. 59-1, at 2.) The Corps does not have
software that would accomplish this process automatically; “each record must
be handled individually, multiple times.” (Rec. Doc. 59-2, at 2.)

4

actually

considered

the

documents,

then

such

documents

would

already have been collected and compiled. Id. Accordingly, Abita
Springs contends that the Corps’ desire to continue searching
for records is not good cause for delay. Id. at 2-3.
Abita Springs also refutes the Corps’ contention that a
continuance
currently

would

unable

impediments,

not
to

Abita

be

prejudicial.

proceed
Springs

with
argues

Although

its
that

project
“delay

Helis
due

to

Oil

is

legal

continues

to

severely prejudice Abita Springs’ interests” because those legal
impediments may no longer be in place in a matter of weeks. Id.
at 5-6. Therefore Abita Springs argues that if the Corps is
granted a continuance, Helis Oil may proceed with its project
before this Court hears summary judgment. Id.
LEGAL STANDARD AND DISCUSSION
A scheduling order “shall not be modified except upon a
showing of good cause and by leave of the district judge.” Fed.
R. Civ. P. 16(b). The “good cause” standard requires the party
seeking relief to “show that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.” S
& W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d
533, 535 (5th Cir. 2003). Whether to grant or deny a continuance
is within the sound discretion of the trial court. United States
v. Alix, 86 F .3d 429, 434 (5th Cir. 1996). In deciding whether
to

grant

a

continuance,

the

5

court's

“judgment

range

is

exceedingly wide,” for it “must consider not only the facts of
the particular case but also all of the demands on counsel's
time and the court's.” Streber v. Hunter, 221 F.3d 701, 736 (5th
Cir. 2000).
In the instant case, the Court finds that the Corps has
demonstrated that it cannot meet the deadline for filing the
administrative record. As discussed above, the Corps originally
estimated that preparation of the administrative record would
require a total of approximately 120 days. (Rec. Doc. 24-2, at
2.) To

date,

the

Corps’

original

120-day

estimation

has

not

changed. (Rec. Doc. 59-1, at 2-3.) The Court agrees that it is
not feasible for the Corps to meet the current deadline for
filing

the

administrative

record;

however,

a

sixty-day

continuance is not necessary.
Consistent

with

the

Corps’

original

estimate

that

preparation of the administrative record would require a total
of approximately 120 days, the Court concludes that a thirty-day
continuance is appropriate. Abita Springs commenced this action
against the Corps on February 12, 2015, before the Corps issued
the permits at issue, and later amended its complaint on June
26,

2015,

but

the

Corps

did

not

begin

compiling

the

administrative record until the Court’s ruling on July 22, 2015.
(Rec. Doc. 59-2, at 1.) The Corps’ inaction is not “good cause”
for further delay. Any inability of the Corps to compile the

6

administrative record within thirty days is of its own making.
Cf. Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d
327, 347 (5th Cir. 2004). Under such circumstances, a court has
no obligation to grant extensions of pretrial deadlines. Id.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Continue
Administrative

Record

Due

Date

and

Further

Proceedings

(Rec.

Doc. 59) is GRANTED in part and DENIED in part. The deadline for
filing the administrative record is extended by thirty days.
IT

IS

FURTHER

ORDERED

that

Defendants

file

the

administrative record on or before October 20, 2015.
IT IS FURTHER ORDERED that Plaintiff's First Motion for
Partial Summary Judgment Vacating the U.S. Army Corps' Permit
(Rec. Doc. 18) is reset for hearing on Wednesday, December 2,
2015, at 9:30 a.m. Plaintiff is ordered to file any supplement
to its motion on or before November 4, 2015. Defendants are
ordered to file any response to Plaintiff's motion on or before
November 16, 2015.
New Orleans, Louisiana this 16th day of September, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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