Gulf Restoration Network et al v. U.S. Army Corps of Engineers et al

Filing 31

ORDER AND REASONS granting 19 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Sarah S. Vance on 9/19/16. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GULF RESTORATION NETWORK,
ET AL.,
VERSUS

CIVIL ACTION
NO. 15-6193

U.S. ARMY CORPS OF ENGINEERS,
ET AL.

SECTION “R” (2)

ORDER AND REASONS
Defendants United States Army Corps of Engineers, Lt. General
Thomas P. Bostick, in his official capacity, Colonel Richard L. Hansen, in his
official capacity, and Secretary of the Army Eric K. Fanning, in his official
capacity, (collectively, the Corps) move to dismiss plaintiffs’ First Amended
Complaint for lack of subject matter jurisdiction. Because the Court finds
that plaintiffs have failed to challenge a final agency action, the motion is
granted.

I.

BACKGROUND
According to plaintiffs’ complaint, Maurepas Pipeline, LLC plans to

build an oil pipeline through the Maurepas Basin, one of the Gulf Coast’s

largest wetlands areas.1 Consistent with its obligations under the Clean
Water Act, see 33 U.S.C. § 1311(a), Maurepas Pipeline sought a dredge and
fill permit for its project from the Army Corps of Engineers. 2
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 public notice required by the
statute “is 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.” 33 C.F.R. § 325.3(a). Accordingly, such notice must “include
sufficient information to give a clear understanding of the nature and
magnitude of the activity to generate meaningful comment.” Id.
The Corps issued a public notice regarding the Maurepas Pipeline
project on June 8, 2015.3 The notice announced a 30-day public comment
period, concluding on July 8, 2015. 4 Plaintiffs allege that the public notice

1
2
3
4

R. Doc. 12 at 1, 11.
Id. at 1.
Id. at 14.
Id.
2

failed to comply with section 325.3(a)’s disclosure requirement in several
ways.5
First, the public notice allegedly did not provide information about
alternative “sites and activities” for the project.6 Second, the notice included
a summary of Maurepas Pipeline’s permit application, but not the full
application. 7 Third, the public notice allegedly lacked “any meaningful
information”

regarding

environmental impact.8

Maurepas

Pipeline’s

plan

for

mitigating

Fourth, the notice did not discuss possible

“cumulative impacts” associated with the project. 9 Plaintiffs allege that these
omissions frustrated their ability to asses and provide meaningful comment
on Maurepas Pipeline’s application. 10
On September 15, 2015, plaintiffs sent the Corps a letter requesting
that the agency reopen the public comment period.11 The Corps refused, and
this suit followed on November 20, 2015.12
complaint on December 22, 2015. 13

5
6
7
8
9
10
11
12
13

Id.
Id.
Id. at 15.
Id.
Id.
Id. at 15-16.
Id. at 17.
R. Doc. 1.
R. Doc. 12.
3

Plaintiffs amended their

In the First Amended Complaint,

plaintiffs ask the Court to declare the Corps’ public notice regarding the
Maurepas Pipeline application inadequate, and order the Corps to issue new
public notice and reopen the comment period. 14 On September 12, 2016, the
Corps notified the Court that it had issued a Clean Water Act section 404
permit to Maurepas Pipeline in July of 2016. 15

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action

if the court lacks jurisdiction over the subject matter of the plaintiff’s claim.
Motions submitted under Rule 12(b)(1) allow a party to challenge the court’s
subject matter jurisdiction based upon the allegations on the face of the
complaint. Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996); see also Lopez v. City of Dallas, Tex., No. 03–2223, 2006 WL
1450420, at *2 (N.D. Tex. May 24, 2006). In ruling on a Rule 12(b)(1) motion
to dismiss, the court may rely on (1) the complaint alone, presuming the
allegations to be true; (2) the complaint supplemented by undisputed facts;
or (3) the complaint supplemented by undisputed facts and by the court’s
resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac

14
15

Id. at 19.
R. Doc. 30 at 2.
4

Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera–Montenegro, 74
F.3d at 659. The plaintiff bears the burden of demonstrating that subject
matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction that
does not implicate the merits of plaintiff’s cause of action, the district court
has substantial authority “to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Arena v. Graybar Elec. Co., 669
F.3d 214, 223 (5th Cir. 2012). Accordingly, the Court may consider matters
outside the pleadings, such as testimony and affidavits. See Superior MRI
Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015).
A court’s dismissal of a case for lack of subject matter jurisdiction is not a
decision on the merits, and the dismissal does not necessarily prevent the
plaintiff from pursuing the claim in another forum. See Cox, Cox, Filo, Camel
& Wilson, L.L.C. v. Sasol N. Am., Inc., 544 F. App’x 455, 456 (5th Cir. 2013).

III. DISCUSSION
In its motion to dismiss, the Corps argues that this Court lacks subject
matter jurisdiction for three reasons: 1) plaintiffs fail to challenge any final
agency action; 2) plaintiffs’ claims are not ripe for judicial review; and 3)
5

plaintiffs lack standing. Because the Court finds that plaintiffs have failed to
challenge a final agency action, it does not reach the Corps’ other arguments.
The Administrative Procedure Act accords judicial review to “[a]
person suffering legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a relevant statute.” 5
U.S.C § 702. “Final agency action, however, is a jurisdictional prerequisite
of judicial review.” Louisiana State v. U.S. Army Corps of Eng’rs, No. 1530962, 2016 WL 4446067, at *7 (5th Cir. Aug. 23, 2016). There are “two
conditions that generally must be satisfied for agency action to be ‘final’
under the APA.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807,
1813 (2016). “First, the action must mark the consummation of the agency’s
decisionmaking process—it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which rights or obligations
have been determined, or from which legal consequences will flow.” Id.
(quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)); see also Louisiana
State, 2016 WL 4446067 at *5 (stating that final agency action “occurs when
the agency has ‘asserted its final position on the factual circumstances
underpinning’ the agency action” (quoting Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 483 (2004)).

6

As an initial matter, the Court considers the effect of the Corps’ recent
revelation that it issued a Clean Water Act section 404 permit to Maurepas
Pipeline in July of 2016. 16

Although the issuance of a permit likely

constitutes a final agency action, this Court may exercise jurisdiction over
this case only if plaintiffs’ complaint, as and when filed, challenges a final
agency action. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d
1068, 1079 (7th Cir. 2016); Leigh v. Salazar, No. 11-608, 2012 WL 2367823,
at *2 n.2 (D. Nev. June 21, 2012); Malama Makua v. Rumsfeld, 136 F. Supp.
2d 1155, 1161 (D. Haw. 2001); see also Home Capital Collateral, Inc. v.
F.D.I.C., 96 F.3d 760, 762 (5th Cir. 1996) (“Subject matter jurisdiction is
determined at the time the complaint was filed.”). The Corps’ subsequent
granting of the Maurepas Pipeline permit therefore does not alter the finality
analysis.
Plaintiffs argue that although the Corps had not issued a final decision
on whether to grant the Maurepas Pipeline permit at the time this suit was
filed, the Corps’ decision to close the comment period constitutes a final
agency action. 17 It was at this point, according plaintiffs, that the allegedly

16
17

R. Doc. 30 at 2.
R. Doc. 20 at 3.
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insufficient public notice “became final.” 18 Because the challenged action
meets neither prong of the Bennett test, the Court rejects this argument.
Under the first prong, the Corps’ decision is plainly the sort of
interlocutory action that does not “mark the consummation of the agency’s
decisionmaking process.” Bennett, 520 U.S. at 177-78; see also Nat’l Wildlife
Fed’n v. Adamkus, 936 F. Supp. 435, 443 (W.D. Mich. 1996) (“Consideration
of public comment is an intermediate stage in the process of creating a final
agency action; it is a preliminary or procedural action subject to review upon
final agency action.”). The public comment procedure exists to “evaluate the
probable impact on the public interest,” 33 C.F.R. § 325.3(a), and thereby
inform the Corps before it takes final action. Plaintiffs tacitly concede this
point when they describe their injury as being “wrongfully deprived of their
only opportunity to review and comment on the Maurepas [Pipeline] permit
application.”19 Because the notice and comment period is a mere step on the
way to permit approval or denial, plaintiffs must table their grievances until
the permitting process is complete. See 5 U.S.C. § 704 (permitting review of
a “preliminary, procedural, or intermediate agency action or ruling not
directly reviewable . . . on the review of the final agency action”).

18
19

Id.
R. Doc. 12 at 17.
8

Plaintiffs’ claim fails the second Bennett prong for nearly the same
reason. At the time of filing, the Corps had not yet made a decision to grant
or deny the permit. Therefore, no legal consequences flow from its decision
to close the comment period. See Texas v. Equal Employment Opportunity
Comm’n, No. 14-10949, 2016 WL 3524242, at *8 (5th Cir. June 27, 2016)
(“‘[L]egal consequences’ are created whenever the challenged agency action
has the effect of committing the agency itself to a view of the law that, in turn,
forces the plaintiff either to alter its conduct, or expose itself to potential
liability.”). Although plaintiffs would like to play a greater role in the Corps’
decision making process, plaintiffs’ legal rights have not been altered by the
allegedly premature closure. To resist this conclusion plaintiffs allege that
they have suffered an “informational injury,” and that, because there is no
indication that the Corps will reopen the comment period, this informational
deprivation is a final action. This argument fails for three reasons.
First, although a statute may, in some circumstances, create a judicially
cognizable right to information, see, e.g., Ctr. for Biological Diversity, Inc.
v. BP Am. Prod. Co., 704 F.3d 413, 429 (5th Cir. 2013) (“This is the kind of
concrete informational injury that the [Emergency Planning and Community
Right-to-Know Act] was designed to redress.”), the notice and comment
procedure at issue here does not create such a right.
9

The procedures

challenged by plaintiffs exist only to facilitate the section 404 permitting
process; if Maurepas Pipeline had never sought a permit, the Corps would
have no obligation to release any information or accept any comment.
Rejecting an analogous claim under the Forest Service Decisionmaking and
Appeals Reform Act (ARA), the Ninth Circuit explained at length why a
notice and comment provision does not give rise to a freestanding
informational injury claim:
To ground a claim to standing on an informational injury, the
ARA must grant a right to information capable of supporting a
lawsuit. See generally Cass R. Sunstein, Informational
Regulation and Informational Standing: Akins and Beyond, 147
U. Pa. L. Rev. 613, 642–43 (1999) (concluding that the “principal
question after Akins, for purposes of ‘injury in fact,’ is whether
Congress or any other source of law gives the litigant a right to
bring suit”). Notice, of course, is a form of information
(information that certain projects are being proposed), however
Congress’s purpose in mandating notice in the context of the
ARA was not to disclose information, but rather to allow the
public opportunity to comment on the proposals. Notice is
provided as a predicate for public comment. . . . In other words,
the ARA grants the public a right to process and to participation.
Even though these rights necessarily involve the dissemination
of information, they are not thereby tantamount to a right to
information per se.
Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1259 (9th Cir. 2010) (emphasis
in original).

Because plaintiffs have no legally cognizable right to

information under section 404, the Corps’ choice to withhold information is
not a legal consequence under Bennett.
10

The second reason that plaintiffs’ informational injury argument fails
is that, as revealed by their own pleadings, plaintiffs’ actual claimed injury is
not deprivation of information but rather alleged exclusion from effective
participation in the permitting process. In the First Amended Complaint,
plaintiffs allege that they “are adversely affected and aggrieved by the Corps’
actions because they are unable to generate meaningful input about this
project and its alleged mitigation plans.” 20

Plaintiffs’ requested relief

includes “[a]n order compelling the Corps to issue a new public notice and
accept public comment on a complete Maurepas application.” 21

As

demonstrated by the complaint, plaintiffs’ alleged injury is procedural rather
than informational. Plaintiffs therefore do not face a legal consequence as
contemplated in Bennett. See Summers v. Earth Island Inst., 555 U.S. 488,
496 (2009) (“[D]eprivation of a procedural right without some concrete
interest that is affected by the deprivation—a procedural right in vacuo—is
insufficient to create Article III standing.”).
Finally, the Court finds that accepting plaintiffs’ argument would be
inconsistent with the “‘pragmatic’ approach [that] must be taken when
deciding whether an agency action is ‘final.’” Texas v. Equal Employment

20
21

Id. at 5.
Id. at 19.
11

Opportunity Comm’n, No. 14-10949, 2016 WL 3524242, at *7 (5th Cir. June
27, 2016). The limitation of judicial review to final agency actions insulates
the administrative decisionmaking process from premature judicial
interference and ensures that courts consider concrete, rather than abstract,
disputes. The Court finds that accepting plaintiffs’ proposed expansion of
the universe of final agency action threatens this sensible separation between
judicial and administrative functions.

IV.

CONCLUSION

For the reasons stated above, the Court GRANTS defendants’ Motion
to Dismiss. Accordingly, plaintiffs’ claims are DISMISSED WITHOUT
PREJUDICE.

19th
New Orleans, Louisiana, this _____ day of September, 2016.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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