Abita Springs Town v. U.S. Army Corps of Engineers et al
ORDER & REASONS. It is ORDERED that Plaintiff's First Motion for Partial Summary Judgment Vacating the U.S. Army Corps' Permit (Rec. Doc. 18 ) is DENIED. It is FURTHER ORDERED that Plaintiff's Supplemental Motion for Summary Judgment Vacating the U.S. Army Corps' Permit (Rec. Doc. 70 ) is DENIED. It is FURTHER ORDERED that Defendants' Cross-Motion for Summary Judgment (Rec. Doc. 76 ) is GRANTED. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TOWN OF ABITA SPRINGS
U.S. ARMY CORPS OF
ENGINEERS, ET AL
ORDER & REASONS
Judgment Vacating the U.S. Army Corps’ Permit (Rec. Doc. 18) filed
by Plaintiff, the Town of Abita Springs (“Abita Springs” or the
“Town”); an opposition thereto (Rec. Doc. 35) filed by Defendants,
United States Army Corps of Engineers, Lieutenant General Thomas
P. Bostick, John M. McHugh, and Martin S. Mayer (collectively, the
“Corps”); an opposition thereto (Rec. Doc. 67) filed by Intervenor
Defendant, Helis Oil & Gas Company, L.L.C. (“Helis”); Plaintiff’s
Supplemental Motion for Summary Judgment Vacating the U.S. Army
Corps’ Permit (Rec. Doc. 70); Helis’s opposition thereto (Rec.
Doc. 71); Abita Springs’ reply thereto (Rec. Doc. 82); the Corps’
Springs’ opposition thereto (Rec. Doc. 78). The motions were set
for hearing, with oral argument, on December 2, 2015. Having
considered the motions, legal memoranda, and arguments of counsel;
the record; and the applicable law, the Court finds that Abita
Springs’ motions should be DENIED and the Corps’ cross-motion
should be GRANTED for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This dispute derives from the Corps’ decision to grant Helis
a permit to dredge and fill wetlands under section 404 of the Clean
Water Act, 33 U.S.C. § 1344. Helis has proposed an exploration and
production project that will be conducted in two separate phases,
referred to as “Phase 1” and “Phase 2” respectively. AR 809. 1 Phase
1 comprises the development of a site for the drilling of a
vertical well in order for Helis to obtain information regarding
the production potential of a subsurface geologic formation over
two miles below the land surface from which Helis plans to extract
oil and gas. Id. If the data collected from the vertical well
confirms the potential for economically viable mineral production
from the target zone, Helis intends to implement Phase 2, which
will consist of the development of a site to support the drilling
of a horizontal well advanced from the vertical well drilled in
Phase 1. Id.
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 Plaintiff
with a compact disc containing fully Bates numbered copies of the documents
administrative record is incorporated into the Court’s record by Notice of
Manual Attachment. (Rec. Docs. 68-3, 72-1.)
Helis initially sought a permit that would cover both phases
of its proposed project. On April 14, 2014, the Corps published a
public notice of Helis’s original permit application to construct
a drill-site well pad, approximately 10.55 acres in size, that
would accommodate an oil and gas exploration well and multiple
hydraulic fracturing (“fracking”) wells. AR 4857. Due to public
interest, the Corps granted two time extensions to the comment
period, which ended on June 16, 2014. AR 4950. On July 29, 2014,
a Geologic Review 2 meeting coordinated by the Corps and facilitated
by the Louisiana Geological Survey (“LGS”) was held to discuss the
geological aspects associated with the proposal. Id. In attendance
were representatives from the Louisiana Department of Wildlife and
Fisheries (“LDWF”), Louisiana Department of Environmental Quality
(“LDEQ”), U.S. Environmental Protection Agency (“EPA”), along with
representatives for Helis and the Corps. AR 400. After reviewing
the information presented by Helis, John E. Johnston III of the
LGS, the consulting geologist at the Geologic Review meeting,
alternatives” to the location selected by Helis for its proposed
project. AR 358. However, Johnston determined that the site had no
“Geologic Review is an ongoing program created by the Louisiana Geological
Survey in 1982 which provides regulatory technical assistance to the Coastal
Management Division (CMD) of the Louisiana Department of Natural Resources and
to three districts of the U.S. Army Corps of Engineers (USACE).” Geologic
Review, Louisiana Geological Survey, http://www.lgs.lsu.edu/deploy/content/
GEORV/index.php (last visited Dec. 23, 2015).
more than a fifty percent chance of becoming a viable production
site. AR 400. As a result, Johnston recommended that a single
exploratory well be constructed to obtain better data to assess
the viability of producing oil and gas at the site. Id. He also
recommended that Helis reduce the size of its fill for the well
pad from approximately 9.46 acres to 3.2 acres. AR 400-01. The
LDWF, LDEQ, EPA, and the Corps agreed with the recommendations,
and the Corps suggested that Helis submit revised plans proposing
a single exploratory well with a maximum 3.2 acres of fill, “based
on a revised purpose to obtain additional data/information to
evaluate the viability of producing fossil fuels in this specific
geographical area.” AR 4951; accord AR 400-01.
application that reduced the scope and footprint of the proposed
work. As requested by the Corps, Helis amended its initial permit
application to encompass the surface development required for
Phase 1 of the project only, 3 i.e., the drilling of the vertical
well, and reduced the size of the well pad. AR 524-25. The Corps
determined that the application was complete and issued a public
notice on October 14, 2014. AR 512. The public notice indicated
that the Corps and LDEQ were soliciting public comments for a
3 The Corps “views this project as a ‘standalone’ activity to determine if the
oil and gas reserves within the target formation can be economically extracted.
If fracking procedures are proposed at this site, additional evaluation and
authorization by [the Corps] and other agencies will be required.” AR 4972.
period of thirty days. AR 513. Accordingly, the period ended on
November 13, 2014. During the public comment period, the Corps
received over 100 comments from individuals and organizations.
(Rec. Doc. 35-1, at 3.) After the comment period closed, the Corps
received more than eighty additional comments from the public. Id.
According to the Corps, all comments received, including those
submitted by Abita Springs after the close of the comment period,
were considered in the Corps’ decision-making process. (Rec. Doc.
76-1, at 10.)
After the close of the comment period, the Corps sent two
letters to Helis. On December 2, 2014, the Corps sent Helis a
letter asking for its response to comments received from the
public. AR 2962. In addition, the Corps sent Helis a letter on
December 4, 2014, 4 requesting Helis’s response to the EPA’s and
the Corps’ comments. AR 2968. In particular, the Corps requested
that Helis respond to the EPA’s concerns that Helis had not
considered alternative non-wetland sites for its project. Id. The
Corps also asked Helis to respond to the EPA’s request that Helis
examine opportunities to minimize wetland impacts by reducing or
reconfiguring the project’s footprint. Id. Further, the Corps
asked Helis to respond to its own concerns about whether Helis had
The parties agree that the November 4, 2014 date on the letter is a
typographical error. The date should read December 4, 2014. The letter
references and attaches an email dated November 13, 2014, and therefore could
not have been issued on November 4, 2015.
developed contingency plans and best management practices in order
to prevent pollution in the event of flooding. AR 2968-69.
On January 2, 2015, Helis provided the Corps with a detailed
information, along with twenty-one attached exhibits. AR 3609. In
total, Helis’s response and exhibits amount to over 500 pages. AR
3609-4115. Despite Abita Springs’ request, the Corps failed to
additional information. AR 4239. On February 25, 2015, after
reviewing Helis’s response, the EPA advised the Corps that it did
not object to the proposed project. AR 4515. On March 19, 2015,
construction of a well pad and an exploratory vertical well to
obtain geologic data to confirm the production potential of a very
specific subsurface geologic zone will not violate water quality
standards” and issued Helis a Water Quality Certification. AR 4611.
In May 2015, Brad Laborde, the Corps project manager assigned to
the permit, communicated with John Johnston to ask for additional
Johnston reiterated that “[a]ll of the locations were reviewed and
the least damaging feasible location was selected.” AR. 4830.
5 In his email, Laborde stated, “I’m still at a knowledge disadvantage on this
project since I wasn’t involved for much of the review.” AR 4826. Laborde took
over for Robert Tewis as the Corps project manager for the subject permit in
February 2015. AR 4518, 4826-27.
The Corps prepared a Memorandum for Record approving the
permit application on June 5, 2015. AR 4950. The Memorandum for
Record addressed all substantive issues raised by the public
comments received and contained the Corps’ analysis required by
Guidelines Evaluation,” “Public Interest Review,” and “Statement
of Findings.” AR 4950-5048. The Corps found that “the proposed
action would not have a significant impact on aquatic resources
Environmental Impact Statement [was not] required.” AR 4984.
On June 8, 2015, the Corps issued Helis the permit. AR 5295.
Specifically, the permit authorizes Helis to “[c]lear, grade,
excavate, and deposit fill for a guard facility, three bypass
roads, a well pad, and appurtenances to install and service a
vertical exploratory test well.” AR 5295. The proposed work will
impact a total of 3.13 acres of wetlands. AR 4951.
Procedure Act (“APA”), 5 U.S.C. § 551 et seq.; 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. Abita Springs filed
its initial complaint and commenced this action on February 12,
2015, although the Corps had not yet issued the permit. (Rec. Doc.
1.) On June 26, 2015, Abita Springs filed its First Amended
Complaint, challenging the newly-issued permit. (Rec. Doc. 15.) 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 to
complete its application after the close of the public comment
period. Id. at 2. Abita Springs also claims that the Corps issued
the permit in violation of regulations that prohibit the Corps
reasonably concludes that there is no “practical alternative” that
would have a less adverse impact on the aquatic ecosystem and that
the Corps failed to conduct a lawful analysis of alternatives. Id.
On July 9, 2015, Abita Springs filed its First Motion for
Partial Summary Judgment Vacating the U.S. Army Corps’ Permit (Rec.
Doc. 18), originally set for hearing with oral argument on July
29, 2015. The Corps filed a Motion to Continue Plaintiff’s First
Motion for Partial Summary Judgment, arguing that Abita Springs’
motion was premature because the administrative record had not yet
been compiled and lodged. (Rec. Doc. 28-1, 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 the Corps to file the administrative
record on or before September 20, 2015. Id. at 2.
On September 4, 2015, the Corps filed a Motion to Continue
Administrative Record Due Date and Further Proceedings. (Rec. Doc.
59.) The Court granted the motion in part on September 16, 2015,
and extended the Corps’ deadline for filing the administrative
record until October 20, 2015. (Rec. Doc. 64, at 7.) Further, the
Court continued the hearing on Abita Springs’ motion until December
2, 2015, and ordered Abita Springs to file any supplement to its
motion by November 4, 2015, and Defendants to file any response to
Abita Springs’ motion by November 16, 2015. Id.
Summary Judgment Vacating the U.S. Army Corps’ Permit (Rec. Doc.
70) on November 4, 2015. Helis opposed the motion on November 16,
2015. The Corps filed its Cross-Motion for Summary Judgment (Rec.
Doc. 76) and brief in opposition to Abita Springs’ supplemental
motion on November 18, 2015. 6 Abita Springs opposed the Corps’
cross-motion on November 24, 2015. In addition, the Court granted
Abita Springs leave to file a reply in support of its supplemental
motion on December 2, 2015.
When presented with a motion for summary judgment, a court
normally considers whether the record, “viewed in the light most
6 The Corps timely filed its cross-motion in response on November 16, 2015;
however, the cross-motion was marked deficient because the attached memorandum
exceeded the twenty-five page limit. (Rec. Doc. 73.) The Corps corrected the
deficiency and refiled its cross-motion on November 18, 2015.
favorable to the non-moving party,” evinces a genuine issue of
material fact. Tex. Comm. on Nat. Res. v. Van Winkle, 197 F. Supp.
2d 586, 595 (N.D. Tex. 2002) (citing Fed. R. 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. (citing Piedmont
Envtl. Council v. U.S. 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 analysis
under Rule 56 of the Federal Rules of Civil Procedure, courts have
held that summary judgment remains “an appropriate procedure for
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 agency’s decision, the district court
must “determine whether as a matter of law, evidence in the
administrative record permitted the agency to make the decision it
did, and summary judgment is an appropriate mechanism for deciding
the legal question of whether an agency could reasonably have found
the facts as it did.” Sierra Club v. Dombeck, 161 F. Supp. 2d 1052,
1064 (D. Ariz. 2001); see also City 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
capricious, an abuse of discretion, or otherwise not in accordance
with law” or if they were made “without observance of procedure
required by law.” 7 5 U.S.C. § 706(2). “To make this finding the
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 decision was arbitrary or capricious [or made without proper
7 Plaintiff seeks 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.
procedures] rests with the party seeking to overturn the agency
decision.” Van Winkle, 197 F. Supp. 2d at 596.
PARTIES’ ARGUMENTS AND DISCUSSION
Abita Springs contends that it satisfies the requirements for
Constitution. First, Abita Springs claims that it has suffered
concrete economic and aesthetic injuries because “[t]he Corps’
violations in failing to provide a meaningful opportunity for
notice and comment and failing to analyze non-wetland alternatives
threaten Abita Springs’ concrete interests.” (Rec. Doc. 70-1, at
21.) In particular, Abita Springs argues the permit at issue
“threatens the Town’s environmental amenities, reputation, and
value as a place to live, visit, and open a business.” Id. at 1.
In support of this contention, the attached declaration of Greg
Lemons, Mayor of Abita Springs, provides that Helis’s project has
already damaged the Town’s “image” and “brand” 8 and will continue
to do so if the vertical well is drilled. (Rec. Doc. 70-3, at 24.) Because this brand is Abita Springs’ primary draw for tourists,
“Abita Springs’ character and reputation as a place for healthy living,
pristine water, and clean air is its brand, and a primary draw for current and
prospective residents, businesses, and tourists. . . . In fact, the Town has
expended resources successfully promoting this brand.” (Rec. Doc. 70-1, at 22.)
Mayor Lemons testified, “By brand I mean an image that the region, state,
country, and world associate with Abita Springs.” (Rec. Doc. 70-3, at 2.)
current residents, and future residents, Abita Springs argues that
harm to its brand threatens not only the Town’s aesthetic interest
but this translates into an economic injury as well. (Rec. Doc.
70-1, at 22.) In addition, Abita Springs argues that the Helis
project could lead to contamination of the Southern Hills Aquifer,
the Town’s water supply. Id. at 23. Second, Abita Springs claims
that its injuries are fairly traceable to the Corps’ actions
because its injuries are caused by the Helis operation approved by
the Corps’ permit. Id. Lastly, Abita Springs claims that the
procedural remedy it requests, that the Court vacate the permit
and remand to the Corps to provide for meaningful notice and
comment and for a proper alternatives analysis, may redress its
injuries. Id. at 24.
In its opposition, Helis contends that Abita Springs lacks
standing to bring this suit. (Rec. Doc. 71, at 7.) As an initial
matter, Helis argues that the Town must establish that the Corps’
alleged procedural failings have caused harm directly to the
environmental protection statues, Helis argues that Abita Springs
must demonstrate that its injury is environmental in nature. Id.
at 9. According to Helis, “the conclusory, unsupported, hearsay
allegations of Mayor Lemons are not sufficient to establish the
facts necessary for Plaintiff to carry its burden to demonstrate
that it has standing.” Id. at 11. Helis argues that Abita Springs’
alleged injury is hypothetical and based on an incorrect perception
regarding the Phase 1 activity approved by the Corps’ permit. Id.
at 13. For instance, Lemons’s declaration references fracking
despite the fact that no fracking activity is authorized by the
permit at issue. Id. at 15. Furthermore, Helis points out that
groundwater. 9 Id. at 12. Next, Helis argues that Abita Springs has
offered no evidence that the alleged harm is fairly traceable to
allegedly held by an unquantified number of unnamed individuals”
that Helis’s Phase 1 operations will pollute the groundwater. Id.
The Corps provides similar arguments in opposition in its
cross-motion for summary judgment. (Rec. Doc. 76-1, at 11-15.)
According to the Corps, Abita Springs lacks standing because it
fails to establish that it will suffer an injury from the permit
at issue or that any such injury is fairly traceable to the Corps’
decision to grant the permit. Id. at 12. The Corps argues that the
9 In contrast, Mike Barham, the Drilling and Completion Manager for Helis,
testified that the water within the Southern Hills Aquifer system “moves in a
south-southwest direction towards Lake Pontchartrain, away from Abita Springs.”
(Rec. Doc. 71-1, at 3.)
Town’s alleged harms are “tied almost exclusively to a definition
of ‘project’ that conflates both the exploratory well at issue
here and a second project for a fracking well that has not been
applied for, much less permitted.” Id. at 13. According to the
Corps, such speculation regarding future harms from a different
project provides no basis for standing. Id. at 13-14. Further, the
Corps argues that the testimony provided by Abita Springs is not
sufficiently particularized to support standing. For example, the
Corps contends that Abita Springs does not establish how “the
filling of 3.2 acres of wetlands several miles from [its] borders
‘adversely impacts Abita Springs’ aesthetic appeal.’” Id. at 14.
In addition, the Corps argues that Abita Springs’ allegations fail
to establish standing because they are based upon the actions of
third parties. Id. at 15 (“Plaintiff seems to base its allegations
decisions of ‘a number of people that have not come to Abita
Springs.’”). In sum, while Abita Springs might have standing to
challenge a subsequent permit related to fracking activities, the
Corps contends that the Town lacks standing to challenge the
exploratory permit at issue.
opposition to the Corps’ cross-motion. (Rec. Doc. 78, at 13.)
First, Abita Springs argues that its injuries do not rely on the
fracking aspect of the project. Id. at 13. According to Abita
Springs, the permit authorizes a drilling project and this alone
defendant’s actions need not be the very last step in the chain of
causation; therefore, to the extent that some of its injuries are
tied to the fracking phase, this permit injures those interests.
Id. at 14. Next, Abita Springs argues that damage to its brand is
concrete and particularized. For example, the Town claims it will
suffer aesthetically and Town life will be less enjoyable if the
area of the project site becomes environmentally degraded. Id. at
environmental well-being are not only important ingredients in
society in general, [but are] of paramount importance to Abita
Springs and its residents.” Id.
Abita Springs also maintains that it satisfies the prudential
requirements for standing. (Rec. Doc. 70-1, at 24.) According to
Abita Springs, its interests articulated in Lemons’s declaration
protected by the Clean Water Act and the National Environmental
Policy Act. Id. Further, in its reply, Abita Springs argues that
actual environmental injury is not required and that it is not
required to prove its concerns will become a reality. (Rec. Doc.
82, at 8.)
Before reaching the merits of the instant motions for summary
judgment, the Court must first determine whether Abita Springs has
standing to challenge the permit at issue. Whether a plaintiff has
standing to sue is a threshold jurisdictional question. See, e.g.,
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 10102 (1998). To satisfy Article III’s standing requirements, a
plaintiff must show “(1) it has suffered an ‘injury in fact’ that
is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (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.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). In a
procedural rights case, the plaintiff need not show that the
procedural remedy he is requesting will in fact redress his injury.
Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998). “When
a litigant is vested with a procedural right, that litigant has
standing if there is some possibility that the requested relief
will prompt the injury-causing party to reconsider the decision
that allegedly harmed the litigant.” Texas v. United States, 787
F.3d 733, 748 (5th Cir. 2015). In order to make this showing, the
plaintiff must show that “the procedures in question are designed
to protect some threatened concrete interest of [its] that is the
ultimate basis of [its] standing.” Glickman, 156 F.3d at 613
(alterations in original) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 573 n.8 (1992)).
As a municipality, Abita Springs may not simply assert the
citizens on their behalf. City of Sausalito v. O'Neill, 386 F.3d
1186, 1197 (9th Cir. 2004); City of Olmsted Falls v. FAA, 292 F.3d
261, 268 (D.C. Cir. 2002); City of Safety Harbor v. Birchfield,
529 F.2d 1251, 1256 n.7 (5th Cir. 1976). Rather, as a municipality,
Abita Springs may sue to protect its own “proprietary interests,”
which might be congruent with those of its citizens. City of
Sausalito, 386 F.3d at 1197. For example, courts have recognized
that a municipality has an interest in its ability to enforce landuse and health regulations, its powers of revenue collection and
taxation, its aesthetic appeal, and in protecting its natural
resources from harm. Id. at 1198. Thus, in order to establish
standing, Abita Springs must show that the Corps’ actions caused
harm to the Town itself, as opposed to its citizens.
municipality when concrete harm to its aesthetic or economic
interests have been alleged. For example, in City of Sausalito v.
O’Neil, the Ninth Circuit held that the city adequately alleged an
Article III injury where it alleged that a National Park Service
proposal would result in a detrimental increase in traffic and
crowds in the city’s downtown area, affecting the city’s management
and public safety functions. Id. at 1198-99. Furthermore, the court
held that the city asserted an injury to its aesthetic appeal
because the congestion accompanying the proposal would “destroy
the City’s quiet, beauty, serenity and quaint and historic village
character and attributes.” Id. Because the city alleged that the
aesthetic damage would erode its tax revenue, the injury was
cognizable as both and aesthetic injury and an economic injury.
Id. Similarly, in City of Olmsted Falls v. FAA, although it was “a
close question,” the District of Columbia Circuit held that a city
located two miles from an airport satisfied Article III’s injury
requirement by alleging harm to its own economic interests based
on the environmental impacts of an approved airport reconstruction
project. 292 F.3d at 268.
In the instant case, Abita Springs uses the declaration of
Mayor Lemons to provide facts in support of its standing arguments.
admissibility of several portions of Lemons’s declaration on the
grounds of lack of foundation and hearsay. (Rec. Docs. 71, at 11;
76-1, at 15 n.18.) “[O]n a motion for summary judgment, the
evidence proffered by the plaintiff to satisfy his burden of proof
must be competent and admissible at trial.” Bellard v. Gautreaux,
675 F.3d 454, 460 (5th Cir. 2012); see also Fed. R. Civ. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”). The Federal Rules
declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of
the matter asserted in the statement.” Fed. R. Evid. 801(c).
Hearsay is inadmissible unless an exception applies. 10 Fed. R.
Evid. 802. Furthermore, under Federal Rule of Evidence 602, a
witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has “personal
knowledge” of the matter. Fed. R. Evid. 602. Thus, while a witness
may testify about his or her own perceptions, such testimony may
not relate to the perceptions of others. See Fed. R. Evid. 602,
declaration discussing the perceptions and decisions of unnamed
Abita Springs residents. (See Rec. Doc. 70-3, at 4.) For example,
Springs’ residents and potential future residents perceive that
they are not living in a pristine area but that, rather, they are
living near ‘oil city.’” Id. (emphasis added). Similarly, Lemons
Rules 803, 804, and 807 set forth twenty-nine exceptions to the rule against
testified that “Abita Springs’ residents and potential future
residents and businesses perceive that the Helis Oil project could
lead to contamination of the Southern Hills Aquifer.” Id. (emphasis
added). 11 As the Corps and Helis argue, these portions of Lemons’s
declaration are inadmissible hearsay and lack the required showing
of personal knowledge. Abita Springs simply responds, without
explanation, that “the Mayor’s discussion about what the Town’s
citizens perceive is based on his personal knowledge.” (Rec. Doc.
78, at 18.) However, it is unclear how Lemons could have personal
knowledge of what others perceive or will potentially perceive in
exception to the rule against hearsay applies. 12
Abita Springs has also offered evidence that some of its
residents have already moved from the Town and potential visitors
have refrained from coming to the Town because of the pending
drilling project. (Rec. Doc. 70-3, at 4.) Specifically, Lemons
testified, “We have had a number of people that have not come to
Abita Springs because the pending drilling project is not something
that they want to be around. We have also had folks move out or
sell property already in part because of the Helis pending drilling
In addition, Mayor Lemons testified that he spoke to a developer about an
adjoining piece of land that the Town was interested in annexing. (Rec. Doc.
70-3, at 5.) In particular, Lemons stated, ‘The developer told me he was not
interested in developing that property into a residential area because of the
Helis Oil project.” Id.
12 Instead, Abita Springs contends that the issue is not whether it is true that
citizens are leaving or the developer will not locate there, but rather whether
this evidences a “reasonable concern.” (Rec. Doc. 82, at 9.)
project.” Id. None of the residents who have moved away from Abita
Springs or any of the people who decided not to travel to Abita
Springs have provided declarations in this matter. Even assuming
that Lemons has personal knowledge that an unspecified number of
people have not come to Abita Springs or that some residents have
moved away from the Town, there is no evidence sufficient to
support a finding that Lemons has personal knowledge of their
motives. Of course, even if these people told Lemons that they
decided to move away or not to visit Abita Springs because of the
Helis project, such statements would be hearsay unless Abita
Springs establishes that an exception applies.
Now the Court considers whether the remaining portions of
Lemons’s declaration support a finding that Abita Springs has
standing to challenge the permit at issue. As testified to in
Lemons’s declaration, “One of Abita Springs’ core assets is its
clean water, clean air, and healthy living.” (Rec. Doc. 70-3, at
2.) Additionally, Lemons stated that one of his main projects as
mayor has been to turn this asset into Abita Springs’ “brand.” Id.
promoting this brand. Id. According to Lemons, the Helis project
impacts the Abita Springs image. Id. at 4. If Phase 1 of the Helis
continue to be adversely impacted. Id. Similarly, Lemons testified
that the Helis project adversely impacts Abita Springs’ aesthetic
appeal, which, in turn, adversely affects Abita Springs’ tax
contamination of the water in the Southern Hills Aquifer . . .
because each time you drill a hole through the aquifer, it is a
potential point of failure.” Id. at 5. The Town sells water from
the aquifer; therefore, contamination would result in an economic
injury. Id. In short, Abita Springs alleges that any activity
associated with Helis’s proposed oil exploration project, whether
it be the development of a drill site for the drilling of a vertical
exploratory well in Phase 1 or the drilling of a horizontal
reputation as a place for healthy living, pristine water, and clean
Though Abita Springs may have a proprietary interest in its
brand, aesthetic appeal, and natural resources, 13 it must allege
sufficient harm to its proprietary interest caused by the approved
Helis project. As mentioned above, the alleged injuries must be
“actual or imminent, not conjectural or hypothetical,” and fairly
It is worth noting, however, that Abita Springs’ arguments that the “Town
life . . . will be less enjoyable if the area of the project site becomes
environmentally degraded,” may be inconsistent with the requirements of standing
for a municipality. (Rec. Doc. 78, at 15-16.) Abita Springs is “effectively
attempting to assert the alleged interests of its citizens under the doctrine
of parens patriae,” a theory of standing which is unavailable to municipalities.
City of Olmsted Falls, 292 F.3d at 267; accord City of Safety Harbor, 529 F.2d
at 1256 n.7.
traceable to the Corps’ action in issuing Helis the permit at
issue. Friends of the Earth, 528 U.S. at 180. Thus, the Supreme
Court has repeatedly reiterated that “‘threatened injury must be
‘[a]llegations of possible future injury’ are not sufficient.”
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013). In
City of Sausalito, it was undisputed that the implementation of
the National Park Service’s plan would result in an increase in
local traffic, an increase in air pollutant emissions, and an
incremental contribution to the cumulative noise environment. 386
F.3d at 1199. The court therefore found that implementation of the
plan would result in known, predictable consequences that the city
identified as concrete injury. Id. Here, by contrast, the alleged
injuries to Abita Springs’ brand, aesthetic appeal, and natural
resources are much less clear. Abita Springs has not provided much
evidence in support of its arguments for standing. Even taking a
generous reading of Abita Springs’ materials, the alleged harm to
its aesthetic and economic interests could be characterized as
burden to prove standing, the Court nevertheless concludes that
capricious, or otherwise not in accordance with the law, for the
reasons discussed below.
Adequacy of Public Notice
Abita Springs contends that the Helis permit should be vacated
because the Corps denied Abita Springs the right to meaningfully
comment on the permit proposal. (Rec. Doc. 70-1, at 4.) Abita
Springs alleges that the Corps issued the permit based on “critical
information that was not available to the public during the comment
period.” Id. at 2. In other words, the Town argues that the Corps’
notice did not include enough information to generate meaningful
comment. Id. at 6. In particular, Abita Springs claims that the
public notice did not include information necessary to evaluate
the availability of practicable alternatives. Id. at 9. Without an
insufficient to allow for meaningful comment. Id.
First, Abita Springs asserts that the alternatives evaluation
was absent from the public notice because the Corps issued its
public notice on an incomplete application. Id. at 7. According to
Abita Springs, when the Corps noticed the Helis permit proposal
alternatives sufficient to rebut the presumption that non-wetland
sites are available for its project. Id. at 8. In support of this
argument, the Town cites the letter the Corps sent to Helis on
December 4, 2014, asking Helis to respond to concerns that Helis
had not considered alternative, non-wetland sites. Id. (citing AR
additional information was required to complete the application.
Id. Thus, Abita Springs argues that the Corps issued its public
notice on an incomplete application. Id.
Second, Abita Springs alleges that the Corps relied on key
information received after the public comment period closed. Id.
at 9. Specifically, the Town argues that the Corps’ analysis of
alternatives was based on “more than 500 pages of additional
information” that Helis provided on January 2, 2015. Id. at 9-10.
Abita Springs claims that the Corps’ explanation of why other sites
are not practicable includes a detailed discussion about geologic
information provided by control wells in the area of Helis’s chosen
site. Id. at 11 (citing AR 5338-39, 5341-42). The Town admits that
Helis generally mentioned the existence of these control wells in
information relied on by the Corps in its [Memorandum for Record]
was included in Helis’s application materials.” Id. Moreover,
while Helis apparently included a map with the location of these
control wells in its revised application, Abita Springs claims
that the Corps did not include the map in the information it made
available to the public. 14 Id. at 11. n.3 (citing AR 556-67, 571-
In its comments to the Corps on Helis’s revised application, Abita Springs
noted specifically, “Helis refers to a map of control wells which it designated
as Attachment 1. Yet, this Attachment appears nowhere in the publicly noticed
materials.” AR 2151.
93). According to Abita Springs, the Corps identified these control
wells for the first time in two maps attached as exhibits to its
Memorandum for Record. Id. at 10 (citing AR 5412-13).
In addition, Abita Springs identifies two other sources of
non-public information on which it claims the Corps improperly
relied. One is the statement of Paul Lawless, Helis’s Geological
Manager for Unconventional Resources, which Helis submitted as
Exhibit 11 to its response to the Corps’ December 4 letter. Id.
(citing AR 3558-59). Another source of non-public information on
which Abita Springs claims the Corps relied is the Geologic Review
meeting held on July 29, 2014. 15 Id. at 12. (citing AR 358-59, 40005). The Town argues that the Corps makes clear that it relied on
referenced the conclusion of a “consulting geologist” at the
Geologic Review that no less damaging alternatives were available.
Id. (citing 5340). In sum, Abita Springs maintains that the Corps’
issuance of the Helis permit without providing an opportunity for
public comment on information about alternatives violated the
Clean Water Act and the National Environmental Policy Act.
In its cross-motion in opposition, the Corps contends that it
properly determined that Helis’s application was complete and
published sufficient details of the project for public notice and
The Corps admits that the Geologic Review meeting was not open to the public
and that it denied Mayor Lemons’s request to attend. (Rec. Doc. 40, at 11-12.)
comment. 16 (Rec. Doc. 76-1, at 15.) First, the Corps argues that
including maps and project drawings, which described the nature,
location, and purpose of its proposed project; the amount and
discharges. Id. at 16 (citing AR 526-28). According to the Corps,
the application also described the process and criteria Helis used
to select the site and to evaluate other alternative sites, and it
described its efforts to avoid and to minimize wetland and other
impacts at the site. Id. (citing AR 538-40).
Second, the Corps asserts that the public notice provided
sufficient information to give a clear understanding of the nature
and magnitude of the activity to generate meaningful comment, as
required by the Corps’ regulations. Id. at 16-17 (citing AR 51223). In addition, the Corps points out that it published Helis’s
permit application on its website and circulated to the media a
press release concerning the project, which provided a link to the
public notice and Helis’s permit application. Id. at 17. Thus, the
sufficient information to generate meaningful comments,
all that is required.
Helis adopts and joins in the Corps’ arguments regarding the adequacy of the
administrative process in connection with the permit at issue. (Rec. Doc. 71,
Third, the Corps claims that it asked Helis to respond to
comments and concerns raised by the public about its application,
as contemplated by the Corps’ regulations. Id. According to the
Corps, its request for Helis’s response to these public comments
is “precisely the type of information request that the Corps is
authorized to make after the close of the public comment period.”
Id. (citing 33 C.F.R. § 325.2(a)(3)). Contrary to Abita Springs’
argument, the Corps argues that its regulations do not require it
to reopen the comment period upon receiving Helis’s responses to
the public comments. Id. Rather, the Corps explains that the
district engineer has discretion to issue a supplemental, revised,
or corrected public notice “if in his view there is a change in
the application data that would affect the public’s review of the
proposal.” Id. (emphasis omitted) (quoting 33 C.F.R. § 325(a)(2)).
The Corps argues that it was not required to reopen public comment
in this case because Helis’s response on January 2, 2015, “simply
consideration of topics discussed in its permit application. Id.
at 18-19 (citing AR 538-40, 3623-27). Moreover, the Corps notes
that it published Helis’s responses on its public website. Id. at
19. Therefore, the Corps contends that it did not abuse its
discretion in deciding not to reopen the public comment period
after Helis responded to the public comments.
In its opposition to the Corps’ cross-motion, Abita Springs
claims that the Corps’ argument that its notice and comment was
sufficient does not address its reliance on critical information
not available for public comment. (Rec. Doc. 78, at 10-11.) Abita
Springs insists that the Corps was of the view that Helis had not
practicable alternatives available when it sent the letter to Helis
on December 4, 2014. Id. at 11-12. Because the Corps changed its
mind after receiving Helis’s response in January 2015, Abita
Springs argues the additional information “[c]learly . . . affected
the Corps’ view of the proposal in a significant way.” Id. at 12.
determination that the information would not affect the public’s
view is arbitrary. Id.
In addition, Abita Springs argues that the Corps’ publication
of Helis’s supplemental material on its website did not cure the
notice and comment violation. Id. First, Abita Springs points out
that the record does not reflect that the public was given notice
as to the publication of this new information. Id. Second, the
Corps did not officially provide for a comment period on these
materials. Id. Even if the Corps accepted and considered late
comments, Abita Springs argues that the public had no way to know
that a late comment would be accepted. Id. at 13. Thus, Abita
meaningful opportunity to comment on key information on which the
Corps relied before ultimately granting Helis’s permit.
Section 404 of the Clean Water Act authorizes the Secretary
of the Army, acting through the Corps, to issue a permit for the
discharge of dredged or fill material into navigable waters “after
notice and opportunity for public hearings.” 33 U.S.C. § 1344(a).
The Corps must publish notice soliciting public comment within
fifteen days after receipt of a complete application. 33 C.F.R. §
325.2(a)(2); 33 U.S.C. § 1344(a). If the application is incomplete,
information necessary for a complete application. 33 C.F.R. §
325.2(a)(1). Generally, an application “must include a complete
description of the proposed activity including necessary drawings,
325.1(d)(1). Detailed engineering plans and specifications are not
required; however, the application must describe “the location,
purpose and need for the proposed activity; scheduling of the
activity; the names and addresses of adjoining property owners;
the location and dimensions of adjacent structures; and a list of
authorizations required by other federal, interstate, state, or
local agencies . . . including all approvals received or denials
already made.” Id. In short, a complete application is defined in
terms of the sufficiency of the submitted materials to issue public
notice. Id. 325.1(d)(10) (“An application will be determined to be
complete when sufficient information is received to issue public
Because completion is defined by the sufficiency of the
submitted materials to warrant public notice, it is controlled by
Corps’ regulation that govern the content of a public notice. See
id. § 325.3(a). Public notice serves as “the primary method of
advising all interested parties of the proposed activity for which
a permit is sought and of soliciting comments and information
necessary to evaluate the probable impact on the public interest.”
Id. Accordingly, “[t]he notice must . . . include sufficient
magnitude of the activity to generate meaningful comment.” Id.
Further, the regulation lists items of information that should be
incorporated into the notice, including in relevant part “[a]ny
other available information which may assist interested parties in
evaluating the likely impact of the proposed activity, if any, on
However, “[t]he issuance of a public notice will not be delayed to
obtain information necessary to evaluate an application.” Id. §
In the instant case, Plaintiff alleges that the Corps issued
therefore the public notice was insufficient. As discussed above,
completion and public notice are inextricably linked. In order to
determine whether the public notice was sufficient, the Court must
application was complete at the time of issuance complies with the
law. Yet, if the public notice was sufficient, then Helis’s permit
application must have been complete. See id. § 325.1(d)(10).
Therefore, the Court will first consider whether the public notice
issued by the Corps contained sufficient information to allow the
public to meaningfully comment.
The Corps properly determined that Helis’s application was
complete and published sufficient notice for public comment. The
Corps issued a Joint Public Notice on October 14, 2014. AR 51223. As required by section 325.3(a), the notice included the
following information: (1) the applicable statutory authorities
for the application, AR 512; (2) name and address of the applicant,
id.; (3) the contact information for the Corps employee who could
provide additional information, id.; (4) the location of Helis’s
proposed project, id.; (5) a brief description of the proposed
project, its purpose, and intended use, including a description of
the types of structures that would be erected, AR 512-23; (6)
drawings and plans showing the general and specific site location
statement of the Corps’ knowledge on historic properties that could
be affected by the project, AR 514; (8) a statement of the Corps’
knowledge on endangered species that could be affected by the
project, id.; (9) a statement on the Corps’ evaluation factors,
id.; (10) the comment period, AR 513; (11) and a statement that
any person may request, in writing, within the comment period
specified in the notice, that a public hearing be held to consider
the application, AR 515. Thus, the notice contained the required
items of information listed in section 325.3(a). 17
Abita Springs does not dispute that the notice satisfied the
above-mentioned requirements. The Town argues, however, that the
notice was deficient because it failed to include an adequate
analysis of alternatives that encompassed other available sites
regionally located. Although not explicitly required by section
325.3(a), such information would be required if it “may assist
interested parties in evaluating the likely impact of the proposed
activity . . . on factors affecting public interest.” 33 C.F.R. §
325.3(a)(13). In support of this argument, Abita Springs cites
Ohio Valley Environmental Coalition v. United States Army Corps of
Engineers, 674 F. Supp. 2d 783 (S.D.W. Va. 2009). In Ohio Valley,
Neither the Joint Public Notice nor Helis’s revised permit application appears
to contain a list of other governmental authorizations obtained or requested by
Helis, including required certifications relative to water quality, coastal
zone management, or marine structures, as required by section 325.3(a)(8). See
AR 528 (leaving blank the space provided to list “Other Certificates or
Approvals/Denials received”). Although Abita Springs pointed out this omission
in its comments on Helis’s application, see AR 2151, the Town makes no mention
of it in its motions or memoranda. Accordingly, the Court does not consider
whether the application and public notice are deficient in that regard.
applications were complete and issued public notices that “plainly
did not contain sufficient information to allow for meaningful
public comment.” Id. at 801-02. In that case, the applicants did
not submit information concerning proposed mitigation until after
the public notices were issued and the comment periods closed. Id.
at 794. Therefore, the notices contained no information on proposed
compensatory mitigation, which was “the single most important”
material issue for the Corps’ determination. Id. at 804. For this
reason, the court concluded that the public notices failed to
provide an adequate opportunity for the public to comment. Id. at
information on mitigation submitted to the Corps after the close
of the comment period was required to be released for public
comment. Id. Rather, “the Corps was required to release some
project-specific information on mitigation for public review and
comment.” Id. (emphasis added).
information on alternatives for public review and comment. In
addition to the Joint Public Notice, the Corps published Helis’s
revised permit application on its website and circulated to the
media a press release concerning the project. 18 Abita Springs
See Revised Helis Permit Application Available for 30-Day Public Comment, New
application in comments it provided to the Corps. AR 2145-64.
vertical well “to obtain geologic data to confirm the production
potential of a very specific subsurface geological zone.” AR 538.
Further, Helis explained that it sought to locate its proposed
well site in an area where “information obtained from several
previously drilled wells on the edge of the prospect (the ‘control
wells’)” would be of the most benefit. AR 538-39. Accordingly, one
of the factors Helis used in selecting the proposed site was “its
proximity to the control wells.” AR 539. However, “[b]ecause the
wetlands[,] Helis could not identify a suitable drill site location
within this area that did not encompass wetlands.” Id. Therefore,
Helis sought to select a site that would minimize the number of
wetland acres impacted and that would meet its other site selection
criteria. Id. Although the map attached as Attachment 1 to Helis’s
application was not included in the materials published by the
Corps, the information released to the public was sufficient to
allow for meaningful public comment. See 33 C.F.R. § 325.1(d)(1)
(stating “detailed engineering plans and specifications are not
required” to be included in a public notice); Ohio Valley, 674 F.
(providing a link to the Joint Public Notice and Helis’s revised permit
Supp. 2d at 807 (declining to hold that detailed information was
required to be released for public review and comment). Notably,
the regulations do not require the Corps to include in the public
notice all information necessary to evaluate the application. 33
C.F.R. § 325.1(d)(10) (“The issuance of a public notice will not
application.”). Therefore, the Corps’ determination that Helis’s
application was complete at the time it issued public notice was
not unreasonable, and the Corps provided the public an adequate
opportunity to comment.
Abita Springs’ argument that the Corps’ violated the CWA and
adequate notice and opportunity for comment on the additional
information submitted by Helis after the close of the comment
period also lacks merit. After the application is deemed complete
and public notice is issued, the Corps considers the comments
received in response to the public notice. Id. § 325.2(a)(3).
Substantive comments are furnished to the permit applicant, and
the applicant is allowed an opportunity to submit any further views
it may wish to offer. Id. The district engineer is authorized to
request that the applicant furnish its views on a particular issue
received, that he must have the applicant’s views in order to make
a public interest determination. Id. The district engineer will
issue a supplemental, revised, or corrected public notice if in
his view there is a change in the application data that would
affect the public's review of the proposal. Id. § 325.2(a)(2).
requires that the Army Corps allow an opportunity for the public
to comment on an applicant’s response to the original public
comments.” Sierra Club v. U.S. Army Corps of Eng’rs, 450 F. Supp.
2d 503, 535 (D.N.J. 2006) vacated on other grounds, 277 F. App'x
170 (3d Cir. 2008); accord Fund for Animals, Inc. v. Rice, 85 F.3d
535, 545 (11th Cir. 1996); B&B P'ship v. United States, 133 F.3d
913, 1997 WL 787145, at *6-7 (4th Cir. 1997); Sierra Club v. U.S.
Army Corps of Eng’rs, 935 F. Supp. 1556, 1581 (S.D. Ala. 1996).
Instead, as indicated above, the Corps’ regulations relegate the
decision whether to provide supplemental notice and opportunity
for comment to the discretion of the district engineer, “if in his
view there is a change in the application data that would affect
the public’s review of the proposal.” 33 C.F.R. § 325.2(a)(2).
“Otherwise, the comment period could continue in a never-ending
circle.” Sierra Club, 450 F. Supp. 2d at 535.
authority are afforded substantial deference, especially if those
decisions are based upon an agency’s interpretation of its own
regulations. Belt v. EmCare, Inc., 444 F.3d 403, 408 (5th Cir.
2006) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)). As a
result, several courts considering this issue have concluded that
the Corps’ decision not to open a supplemental notice and comment
period following the submission of additional information was not
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See,e.g., Fund for Animals, 85 F.3d at 545
(upholding Corps’ decision not to reopen comment period after
applicant added 2.5 mile access road to project that required
filling additional wetlands after the close of the comment period);
B&B P’ship, 1997 WL 787145, at *6-7 (upholding Corps’ decision not
to issue supplemental notice and solicit additional comments on
period); Sierra Club, 450 F. Supp. 2d at 535 (upholding Corps’
decision not to open a supplemental notice and comment period after
applicant’s submission of materials that reflected only additional
information rather than any appreciable change in data); Galveston
Beach to Bay Pres. v. U.S. Army Corps of Eng’rs, No. G-07-0549,
2009 WL 689884, at *14 (S.D. Tex. Mar. 11, 2009) (upholding Corps’
decision not to issue public notice on amended application where
change to proposed design involved constructing a project smaller
in scope and the public had already commented extensively on the
original permit application); Sierra Club, 935 F. Supp. at 1581
(upholding Corps’ decision not to issue supplemental public notice
following applicant’s submission of its third proposal because
additional comments would not provide information to the Corps
that would assist in determining whether to grant or deny the
permit application); see also Friends of the Payette v. Horseshoe
Bend Hydroelectric Co., 988 F.2d 989, 996-97 (9th Cir. 1993)
(upholding Corps’ decision denying requests for a public hearing
where Corps had provided adequate notice of permit application and
Corps was aware of public sentiment on both sides of the issue).
requirement for public comment when the Corps relied on non-public
Federation v. Marsh, the court found that, because the Corps relied
on information that was not released to the public for comment,
and because the analysis and reasoning provided in that non-public
information differed substantially from the information previously
released for comment, the information ultimately released did not
properly apprise the public of the rationale behind the Corps’
decision. 568 F. Supp. 985, 994-96 (D.D.C. 1983); see also Ohio
Valley, 674 F. Supp. 2d at 805-06 (finding that Corps violated CWA
where information constituting the “rationale and pivotal data
underlying the Corps’ decision” was not released to the public for
The Court concludes that Abita Springs fails to meet its
burden of demonstrating that the Corps’ decision not to issue a
submission of additional information was arbitrary or capricious.
The materials submitted by Helis on January 2, 2015, respond to a
number of comments and requests for information from the public,
the EPA, and the Corps. The portion of Helis’s response regarding
its analysis of alternatives comprises less than three pages and
refers to twenty-two pages of exhibits. See AR 3624-26, 3618, 3816,
3821, 4095-107, 4109-113. Thus, Helis may have submitted more than
500 pages, but the relevant portion of those materials amounts to
only twenty-five pages. The record does not indicate that the
documents complained of rose to the level of “a change in the
application data that would affect the public’s review of the
proposal.” 33 C.F.R. § 325.2(a)(2).
discussed its consideration of alternative sites for the project
and its efforts to avoid and to minimize wetland impacts at the
site. AR 538-40. Helis’s response reflects only additional, more
detailed information about Helis’s consideration of these topics.
AR 3623-26. Nothing in Helis’s response differed substantially
application. Compare AR 538-40, with AR 3623-27. Unlike the nonpublic information in Marsh, which differed substantially from the
information released to the public, 568 F. Supp. at 994-96; here,
supplemental materials, 674 F. Supp. 2d at 795; here, the Corps’
Memorandum for Record does not indicate that information included
in Helis’s response was central to the Corps’ determination.
Accordingly, the Corps’ decision not to reopen the comment period
was reasonable and does not reflect an abuse of discretion.
The Court also rejects Abita Springs’ argument that the Corps’
letter of December 4, 2014, demonstrates that the Corps considered
Helis’s application to be incomplete. In the letter, the Corps
asked Helis to respond to concerns expressed by the EPA. AR 2968
(“The EPA is concerned that alternative non-wetland sites may exist
that have not been considered by the applicant . . . .”). In
addition, the Corps recited the applicable law: “For non-water
alternative sites exist.” AR 2969. The Corps stated it “presumes
that there may be other available sites in this geographical area
environmentally less damaging.” Id. Similarly, the Corps advised
mitigation until the presumption is successfully rebutted. Id. In
conclusion, the Corps requested that Helis provide a “detailed
discussion about how the parameters for [its] alternative site
search was established.” Id. In other words, the Corps asked Helis
to respond to public comments and requested additional information
that it “deem[ed] essential to make a public interest determination
. . . of compliance with the section 404(b091) guidelines.” 33
C.F.R. § 325.1. The Corps’ regulations authorize such a request
for information and mandate that the issuance of public notice not
Accordingly, the Corps’ request for additional information on
December 4, 2014, was proper.
Abita Springs also alleges that the public notice and comment
period violated the requirements of NEPA. Although NEPA does not
contain specific public comment and review procedures, public
involvement lies at the heart of NEPA’s procedural requirements.
California v. Block, 690 F.2d 753, 770-71 (9th Cir. 1982). The
significant role of public involvement is reflected in the Council
on Environmental Quality (“CEQ”) Guidelines. See 40 C.F.R. §
1500.1(b) (“Accurate scientific analysis, expert agency comments,
and public scrutiny are essential to implementing NEPA.”). The CEQ
environmental information is available to public officials and
citizens before decisions are made and before actions are taken”
and that the information must be of “high quality.” 40 C.F.R. §
Assessment (“EA”) include a discussion of alternatives and an
analysis of environmental impacts of the proposal and alternative
actions. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.9(b). Abita Springs
argues that because an alternatives analysis was not present in
materials released to the public and was integral to the Corps’
decision to issue the permit, the Corps failed to comply with
“NEPA’s emphasis on the availability and robustness of public
scrutiny.” (Rec. Doc. 70-1, at 7.) For the same reasons expressed
opportunity for public involvement.
Finally, even if the Corps’ decision not to reopen the comment
period amounted to procedural error, Abita Springs has failed to
demonstrate that the absence of an opportunity to comment on the
non-public information resulted in any prejudice that could be
cured by remand. See 5 U.S.C. § 706 (“In [judicial review of agency
action,] due account shall be taken of the rule of prejudicial
error.”). The rule of prejudicial error provides that a deficiency
that has “no bearing on the procedure used or the substance of
decision reached” shall not be the basis for reversing an agency’s
decision. United States v. Johnson, 632 F.3d 912, 930 (5th Cir.
2011); see also Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 6162 (1st Cir. 2001) (“Agency missteps too may be disregarded where
it is clear that a remand would accomplish nothing beyond further
expense and delay.”). For example, in Sierra Club vs. United States
Army Corps of Engineers, the court concluded that any deficiency
in the public comment period was not prejudicial because the
plaintiffs “failed to provide any reasonably specific indication
of how they would have commented on these studies if they had had
the opportunity to do so or how any such comments would have
influenced the Army Corps’ decision to issue the Permit to fill
the 7.69 acres of wetlands.” 450 F. Supp. 2d at 536; see also
“received extensive comments from the public” on the development
over the years, the Corps “was well aware of the strong views held
by the public,” and plaintiffs failed to show that an additional
opportunity to comment would have influenced the Corps’ decision
to issue the permit).
Here, the Corps has received extensive comments on Helis’s
proposed project since the time Helis initially applied for a
application, the Corps granted two time extensions to the comment
period due to public interest, resulting in a comment period of
application to reduce the scope of its project, the Corps again
issued public notice and provided another thirty days for public
comment. AR 512-13. The Corps received hundreds of comments on
received and considered after the comment period closed. (Rec.
Doc. 35-1, at 3.) The Corps was well aware of the strong views
held by the public on Helis’s proposed project. Abita Springs has
failed to provide any reasonably specific indication of how it
would have commented on the challenged documents if it had been
given an opportunity to do so or how any such comments would have
influenced the Corps’ decision to issue the permit. Accordingly,
the Court concludes that the Corps’ decision not to issue a
supplemental public notice was not violative of the APA, CWA, or
Abita Springs contends that the Corps violated the CWA’s
mandatory 404(b)(1) guidelines when it issued the permit because
it did not consider, or require Helis to evaluate, alternative
Instead, the Town claims the Corps only considered other wetland
sites in the immediate vicinity of Helis’s chosen site. Id. Abita
Springs asserts that, as a matter of law, the Corps must presume
that practicable alternatives are available that do not contain
wetlands. Id. at 15. However, according to Abita Springs, the Corps
failed to apply this mandatory presumption. Id. In support of this
argument, Abita Springs points out that the Corps’ Memorandum for
Record does not mention the presumption. Id. at 16. Further, Abita
Springs maintains that the Corps’ failure to analyze non-wetland
sites is arbitrary and capricious. Id. at 17.
In opposition, Helis argues that the Corps properly applied
the 404(b)(1) guidelines when it issued the permit. (Rec. Doc. 71,
at 17.) As an initial matter, Helis distinguishes the drilling of
the vertical exploratory well, which has already been approved by
activity approved by the Corps. Id. “Given that the limited surface
activity approved by the separate Corps permit necessarily must be
linked to the location of the well,” Helis argues that Abita
Springs’ entire alternatives argument “fails on its face.” Id. In
short, Helis asserts that the Corps permit does not approve the
actual drilling of the well; therefore, no alternative drilling
sites need be considered. Id.
Next, Helis argues that Abita Springs arguments fail to
consider the purpose of Helis’s vertical exploratory well, which
is “to obtain geologic data to confirm the production of a very
specific subsurface geologic zone.” Id. at 18. Helis claims that
the location was chosen because of the existence of information
from nearby control wells, as evidenced in the administrative
conclusion, Helis contends that Abita Springs has not demonstrated
that the Corps’ conclusion was arbitrary or capricious. Id. at 19.
In its cross-motion, the Corps asserts that it properly
applied the guidelines in approving Helis’s permit. (Rec. Doc. 761, at 19.) Contrary to Abita Springs’ argument, the Corps argues
that the guidelines do not provide that non-wetland alternatives
must be considered in evaluating a permit application to fill
wetlands. Id. Further, the Corps claims that the guidelines require
evaluation of whether alternatives are practicable. Id. at 22.
According to the Corps, Helis selected its proposed site based on
its proximity to several control wells, consistent with the overall
project purpose “to confirm the production potential of a very
specific subsurface geologic zone.” Id. at 20. Thus, Helis’s
“proposed project cannot be conducted and its purpose cannot be
fulfilled by simply drilling a well anywhere within the established
Tuscaloosa Marine Shale play.” Id. at 21. Moreover, the Corps
insists that it did not rely solely on Helis’s analysis, but
instead retained a geologist of the Louisiana Geologic Survey to
provide his expertise in evaluating Helis’s permit application.
Id. In light of all the material in the administrative record, the
capricious. Id. at 22.
The Corps may not issue a permit for the discharge of dredged
or fill material into navigable waters “if there is a practicable
alternative to the proposed discharge which would have less adverse
impact on the aquatic ecosystem, so long as the alternative does
not have other significant adverse environmental consequences.” 40
C.F.R. § 230.10(a). The guidelines require that the Corps follow
a two-step procedure in applying this standard. First, the Corps
defines the project’s “basic purpose.” See id. § 230.10(a)(3). The
“basic purpose” defines the project’s purpose in broad and simple
terms, with the objective of determining whether the proposed
dependent if it requires access or proximity to or siting within
a “special aquatic site,” such as a wetland, to fulfill its basic
purpose. Id. For example, when a project’s basic purpose is to
provide boat access to a river, that activity is water dependent.
See Nat’l Wildlife Fed. v. Whistler, 27 F.3d 1341, 1345-46 (8th
Cir. 1994). On the other hand, a project with a basic purpose to
extract limestone is not water dependent because mining limestone
does not always require that the mine be located in a wetland.
Sierra Club v. Van Antwerp, 362 F. App'x 100, 106-07 (11th Cir.
location-dependent, the broad, location-neutral basic purpose can
result in a finding of non-water dependency.
If the activity is not water dependent, the guidelines require
the Corps to presume that practicable alternatives that do not
involve wetlands are available. 40 C.F.R. § 230.10(a)(3). The Corps
also presumes that all practicable alternatives that do not involve
wetlands have less adverse impact on the aquatic environment. Id.
However, classification of an activity as non-water dependent does
not serve as an automatic bar to issuance of a permit. Both
presumptions are rebuttable. “The determination that a project is
non-water-dependent simply necessitates a more persuasive showing
than otherwise concerning the lack of alternatives.” La. Wildlife
Fed'n, Inc. v. York, 603 F. Supp. 518, 527 (W.D. La. 1984) aff'd
in part, vacated in part, remanded, 761 F.2d 1044 (5th Cir. 1985).
Once a project is determined to be non-water dependent, the burden
shifts to the applicant to rebut the presumptions by clearly
demonstrating that less damaging, practicable alternatives do not
exist. 40 C.F.R. § 2310.10(a)(3). Thus, the Corps’ determination
of the project’s basic purpose and water dependency are threshold
questions that determine the procedure the Corps must follow in
granting the applicant a permit. If the wrong decision is made,
the required procedure will not be followed and the Corps’ decision
will be arbitrary. Van Antwerp, 362 F. App’x at 106.
Once the Corps determines the water dependency of the project,
it no longer considers the basic project purpose, but analyzes the
purposes. Even if non-wetland alternative sites exist, they must
nevertheless be “practicable.” An alternative is practicable only
if “it is available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
overall project purposes.” 40 C.F.R. § 230.10(a)(2). Put simply,
to be practicable, an alternative must be able to fulfill the
project’s overall purpose. Accordingly, whereas the basic project
purpose establishes water dependency and whether the rebuttable
evaluating the practicability of alternatives. Id.
The overall project purpose is defined more narrowly than the
basic project purpose and is more specific to the applicant’s
proposed project. “The overall project purpose must be specific
enough to define the applicant's needs, but not so restrictive as
to preclude all discussion of alternatives.” Gouger v. U.S. Army
Corps of Eng’rs, 779 F. Supp. 2d 588, 605 (S.D. Tex. 2011) (quoting
Army Corps of Engineers Standard Operating Procedures for the
Regulatory Program at 7 (1999), http://www.saw.usace.army.mil/
purpose, the Corps must consider the applicant's needs “in the
context of the desired geographic area of the development, and the
type of project being proposed.” Id. Under the guidelines, “not
only is it permissible for the Corps to consider the applicant’s
objective; the Corps has a duty to take into account the objectives
of the applicant's project.” La. Wildlife Fed'n, Inc. v. York, 761
F.2d 1044, 1048 (5th Cir. 1985).
The specific location of the project may be an important
location can limit what alternatives are considered practicable.
For example, in Gouger v. United States Army Corps of Engineers,
the court concluded that an overall project purpose of providing
“residential lots along the [Gulf Intercoastal Waterway]” was not
overly narrow, and thus not arbitrary and capricious, even though
the basic project purpose of providing “residential housing” was
determined to be non-water dependent. 779 F. Supp. 2d at 605.
alternatives, the court found that the Corps properly defined the
development and the applicant’s stated goals. Id. at 605-07.
Similarly, in Stewart v. Potts, the court found that a city’s
purpose of providing a local golf course for its citizens would be
thwarted if the golf course could not be constructed within the
city. 996 F. Supp. 668, 675-76 (S.D. Tex. 1998). Therefore, it was
within the Corps’ discretion to consider only alternatives within
the city. Id.; see also Nat'l Wildlife Fed'n v. Norton, 332 F.
applicant’s stated purpose was “to provide a source of limestone
for its existing mining operations in Lee County,” the Corps was
transporting limestone from elsewhere); Nw. Envtl. Def. Ctr. v.
Wood, 947 F. Supp. 1371, 1377 (D. Or. 1996) (upholding Corps’
substantial evidence regarding the applicant’s legitimate economic
reasons for choosing to construct its semiconductor fabrication
plant in that location).
guidelines, the Court “must examine the administrative record—not
as a chemist, biologist, or statistician, but as a reviewing court
exercising its narrowly defined duty of holding agencies to certain
minimal standards of rationality.” York, 603 F. Supp. at 526. The
Court must not conduct a de novo trial on the issue, substituting
its own determination for that of the Corps. Avoyelles Sportsmen's
League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983). Instead,
the Court must simply review the Corps’ decision, as supported by
the administrative record, under the arbitrary and capricious
standard. Even if the Court ultimately disagrees with the Corps’
decision, the Court must affirm the decision unless it is arbitrary
or capricious. Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976).
Here, the Corps’ alternatives analysis was not arbitrary or
capricious. The Corps properly considered Helis’s objective “to
obtain geologic data to confirm the production potential of a very
specific subsurface geologic zone which Helis has identified as a
potentially significant source of previously undeveloped mineral
resources.” AR 527; see also AR 3624 (“[T]he purpose is to gather
geologic data needed to determine whether a new play within the
Tuscaloosa Marine Shale, . . . which appears limited to the
southern portion of St. Tammany Parish only, has the required
geological characteristics to [make it] an economically viable
source of oil and gas production.”); AR 4965 (“[T]he project
purpose is to obtain data regarding whether the target formation
in the TMS is economically viable for oil and gas production . .
. .”). Similar to the court’s reasoning in Stewart, Helis’s purpose
of constructing a test well to obtain data regarding a specific
target formation located in the southern portion of St. Tammany
constructed within” the area known to contain the target formation.
996 F. Supp. at 675. Thus, it was within the Corps’ discretion to
consider alternatives only within the area containing the target
Record does not explicitly mention the presumption of non-wetland
alternatives. However, nothing requires the Corps to mention the
administrative record that the Corps was aware of the presumption
and it can reasonably be discerned that the Corps properly applied
materials provided by Helis, the public, and the Corps’ own expert
consultants, the Corps determined that only sites within the
vicinity of the specific, targeted geologic formation would be
practicable. See AR 4952-53 (“The project purpose is to gather the
geologic data needed to determine whether the potential new subplay within the TMS has the required geologic characteristics to
make this formation an economically viable source of oil and gas
production. This geologic formation appears to be confined to the
southern portion of St. Tammany Parish, which limits the range of
sites that would be suitable for the project.”); see also AR 4096
aforementioned geologic data is that the target zone is limited in
areal extent to the southern portion of St. Tammany Parish in the
vicinity of the Southern control wells.”).
alternatives would be practicable for its project. The Corps need
not analyze alternative sites that would not be practicable. In
the preamble to the guidelines, the EPA states, “we emphasize that
the only alternatives which must be considered are practicable
alternatives.” Guidelines for Specification of Disposal Sites for
Dredged Fill Material, 45 Fed. Reg. 85,339 (Dec. 24, 1980) (to be
codified at 40 C.F.R. pt. 230). Moreover, in certain instances, it
may be easier to examine practicability first. In addition, a
Regulatory Guidance Letter issued by the Corps further supports
analysis: “Some projects may be so site-specific . . . that no
options only.” Army Corps of Eng’rs, Regulatory Guidance Letter
93-02 (Aug. 23, 1993).
Abita Springs argues that the Corps cannot rely on a narrow
definition of the project purpose to avoid an analysis of nonwetland
dangers of an overly narrow project purpose, the Corps’ project
purpose is rarely rejected on such grounds. Gouger, 779 F. Supp.
2d at 606 (collecting cases).
Rather, in many recent cases, involving multiple
different circumstances, the Corps' project purpose
definition has been upheld against a challenge that it
was overly narrow. See, e.g., [Fla. Clean Water Network,
Inc. v.] Grosskruger, 587 F. Supp. 2d [1236,] 1247-48
[(M.D. Fla. 2008)] (“While there is always the danger
that in defining a project purpose, the Corps will simply
create a ‘self-fulfilling prophecy,’ on this record, the
Court finds the Corps' decision . . . was neither an
abuse of discretion nor arbitrary and capricious.”);
Nat'l Wildlife Fed. v. Souza, 2009 WL 3667070, at *20
(S.D. Fla. Oct. 23, 2009) (“[T]he Court does not find
that the Corps's assessment was inadequate because it
was based upon an overly narrow project purpose . . . .
The Court finds the overall project purpose in the 2007
environmental assessment defines the applicants'[ ]
needs without being so unduly restrictive as to preclude
Alliance v. U.S. Army Corps of Eng'rs, 437 F. Supp. 2d
1019, 1026-27 (E.D. Mo. 2006) (“The Corps properly
defined the project purpose in accordance with the
City's stated development objectives. The Court cannot
conclude that the project purpose was defined in an
overly narrow manner merely as a pretense for excluding
other alternatives or artificially constraining the
Corps' alternatives analysis.”); Northwest Env. Defense
Ctr. v. Wood, 947 F. Supp. 1371, 1377 (D. Or. 1996) (“In
light of the substantial evidence in the record
regarding Hyundai's legitimate economic reasons for
choosing to construct its project in Eugene, the Corps'
decision to restrict the project purpose to ‘the Eugene
area’ was neither arbitrary nor capricious.”); see also
Whistler, 27 F.3d at 1346 (“The cumulative destruction
of our nation's wetlands that would result if developers
were permitted to artificially constrain the Corps'
alternatives analysis by defining the projects' purpose
in an overly narrow manner would frustrate the statute
and its accompanying regulatory scheme. We do not
believe the case before us raises these concerns.”)
Id. While one can attempt to distinguish these cases in any number
of ways, their cumulative effect demonstrates that an “overly
narrow” project purpose is a rare occurrence. Id.
In its reply, Abita Springs relies largely on the dissenting
opinion in Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir.
2008). In Van Antwerp, Judge Kravitch wrote, “The Corps effectively
construed the project's basic purpose as mining this limestone out
from underneath these wetlands. So construed, a conclusion of
formulation of a project's purpose could no doubt be formulated
for every permit application, and routine acceptance of such
formulations would emasculate the wetlands-protecting presumption,
defeating its purpose.” Id. at 1367 (Kravitch, J., dissenting). On
remand, the district court held that the Corps acted arbitrarily
and capriciously in determining that the basic purpose of the
proposed mining was water dependent, and the Eleventh Circuit
affirmed. Van Antwerp, 362 F. App'x at 107. However, Van Antwerp
is clearly distinguishable from the instant case. In Van Antwerp,
the Corps stated that the basic purpose of the project was to
extract limestone. Id. at 106. The Corps then determined that the
activity was water dependent because the applicant sought to mine
limestone deposits situated in wetlands. Id. at 106-07. As a
result, “the Corps failed to apply the presumption that practicable
alternatives to mining limestone in the Lake Belt are available
and did not shift the burden to the Mining Companies to clearly
demonstrate that there are no practicable alternatives to mining
in the area.” Id. at 107. In short, the Eleventh Circuit concluded
that the Corps could not relieve the applicant of its burden by
dependent. Id. However, the Eleventh Circuit noted that “[t]his is
not to say that the Mining Companies will be unable to satisfy
alternatives to mining limestone in the Lake Belt.” Id.
Here, the Corps did not improperly construe the basic project
purpose to determine that Helis’s project is water dependent and,
therefore, free from the presumption of practicable alternatives.
On the contrary, the Corps’s determined that the basic purpose,
energy resource exploration, “is not considered to be a water
dependent activity.” AR 4950. Therefore, unlike in Van Antwerp,
the Corps required Helis to rebut the presumption by clearly
purpose and the geographical area of the development. Abita Springs
would like the overall project purpose to be the same as the basic
project purpose, basic energy exploration; however, the overall
project purpose is more specific to the applicant’s project than
“Moreover, it is not inconsistent to define the ‘basic project
purpose’ as being non-water dependent, but then provide a specific
applicant's needs, including the ‘desired geographic area of the
development, and the type of project being proposed.’” Id. (quoting
Army Corps of Engineers Standard Operating Procedures for the
Regulatory Program at 7). Accordingly, the project purpose used to
evaluate alternatives was not overly narrow, even though it was
narrower than the basic purpose used to determine the project’s
water dependency, and thus not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.
alternatives that do not involve wetlands are available. AR 4965
(“Locations beyond the area containing the geological formation at
evaluated for potential sites, as a test well in those areas would
not meet the project purpose. . . . Further, considering costs,
logistics and potential impacts, areas that have no access by an
existing road within a reasonable distance are not considered
purpose is to obtain data regarding whether the target formation
in the TMS is economically viable for oil and gas production, all
potential sites must be located in an area known to contain that
provided a detailed explanation of the steps it took to select and
configure a site that would minimize the number of wetland acres
concluded that the proposed site and project configuration is “the
accordance with 40 C.F.R. § 230.10(a).” AR 4965.
concludes that the Corps’ decision to issue the permit does not
administrative record that supports Abita Springs’ claim that the
Corps’ analysis of alternatives and decision to issue the permit
were arbitrary, capricious, or otherwise not in accordance with
the law. Consequently, the Court concludes that the Corps was not
arbitrary and capricious in authorizing the proposed project and
the Corps’ decision must be upheld.
IT IS HEREBY ORDERED that Plaintiff’s First Motion for Partial
Summary Judgment Vacating the U.S. Army Corps’ Permit (Rec. Doc.
18) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Supplemental Motion
for Summary Judgment Vacating the U.S. Army Corps’ Permit (Rec.
Doc. 70) is DENIED.
Summary Judgment (Rec. Doc. 76) is GRANTED.
New Orleans, Louisiana, this 23rd day of December, 2015.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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