Atchafalaya Basinkeeper et al v. U.S. Army Corps of Engineers
Filing
35
ORDER granting in part 20 Motion to Remand. ORDERED that the case will be remanded and the litigation will be temporarily stayed for a period of ninety (90) days from the signing of this Order. FURTHER ORDERED that Defendants are to submit a st atus report forty-five (45) days from the signing of this Order detailing the actions that they have taken in furtherance of the reevaluation, as well as a status report upon the conclusion of the ninety-day stay. Signed by Judge Nannette Jolivette Brown. (jrc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ATCHAFALAYA BASINKEEPER, et al.
CIVIL ACTION
VERSUS
CASE NO. 15-6982
U.S. ARMY CORPS OF ENGINEERS, et al.
SECTION: “G”(1)
ORDER
In this litigation, Plaintiffs Atchafalaya Basinkeeper, Louisiana Crawfish Producers’
Association-West, and Gulf Restoration Network (collectively “Plaintiffs”) allege that Defendants
United States Army Corps of Engineers (“Corps”) and Lieutenant General Thomas P. Bostick, in
his official capacity as Chief of Engineers (collectively “Defendants”) failed to comply with the
Clean Water Act and the National Environmental Policy Act in re-issuing the expired New Orleans
District General Permit 13 (“NOD-13”). 1 Pending before the Court is Defendants’ “Motion for
Voluntary Remand and Temporary Stay of This Case.” 2 Having reviewed the motion, the
memorandum in support, the memorandum in opposition, the record, and the applicable law, the
Court will grant the motion in part.
I. Background
A.
Factual Background
In the First Amended Complaint, Plaintiffs allege that this case is about the Corps’ response
1
Rec. Doc. 1 at 1–2.
2
Rec. Doc. 20.
1
to the expiration of NOD-13 on December 31, 2012. 3 Plaintiffs allege that NOD-13 is a regional
“general permit” for temporary roads and other construction in wetlands in southern Louisiana that
permits the authorization of the filling of wetlands by category of project, without any requirement
of public notice of individual projects or project-specific environmental review pursuant to the
National Environmental Policy Act (“NEPA”). 4 Plaintiffs allege that although the Corps must
provide public notice and undertake environmental reviews under the Clean Water Act (“CWA”)
and NEPA, when NOD-13 expired in 2012, the Corps continued to authorize projects under the
expired general permit for almost two years, and reissued the NOD-13 without complying with
legal mandates for public participation and environmental review. 5
B.
Procedural Background
Plaintiffs filed the original complaint on December 22, 2015. 6 Plaintiffs filed a First
Amended Complaint on March 11, 2016. 7 Defendants filed the instant motion on May 17,
2016. 8 Plaintiffs filed an opposition on May 31, 2016. 9
II. Parties’ Arguments
A.
Defendants’ Arguments in Support of Voluntary Remand and a Temporary Stay
Defendants request a voluntary remand without vacatur and a temporary stay of all
3
Rec. Doc. 12 at 1.
4
Id.
5
Id. at 1–2.
6
Rec. Doc. 1.
7
Rec. Doc. 12.
8
Rec. Doc. 20.
9
Rec. Doc. 30.
2
proceedings in the case until June 30, 2017 in order for the U.S. Army Corp of Engineers to
undertake reevaluation of NOD-13 to determine whether modification, suspension, or revocation
of the permit is in the public interest. 10 Defendants aver that the reevaluation is estimated to require
approximately twelve months and assert that during the temporary stay of the litigation, they will
provide the Court with a status report within 90, 180, and 270 days after the Court grants the
motion. 11 Defendants contend that during the reevaluation process, they will: “(1) issue public
notice of the re-evaluation of NOD-13 and request public comment; (2) consult with the state and
federal agencies that have an interest in NOD-13 and/or that are involved in the application of
NOD-13 to specific projects; (3) evaluate all comments received on NOD-13; (4) prepare a revised
Environmental Assessment of NOD-13, which will include a Statement of Findings and, if
applicable, a review and compliance determination in accordance with the [Clean Water Act]
Section 404(b)(1) Guidelines, 40 C.F.R. Pt. 230. Subpt. B; and (5) issue notice of its determination
on the re-evaluation of NOD-13.” 12 Defendants assert that if the findings of the reevaluation
indicate that modification, suspension, or revocation of the NOD-13 is in the public interest, they
will take such action. 13 Furthermore, Defendants request that the Court schedule a status
conference in July 2017 to decide whether to continue the stay if Defendants have not taken final
action by June 30, 2017. 14
10
Rec. Doc. 20 at 1.
11
Rec. Doc. 20-1 at 1.
12
Id. at 4–5.
13
Id. at 5.
14
Id. at 1–2.
3
Defendants assert that it is undisputed that administrative agencies have the inherent power
to reconsider their own decisions and the general rule is that an agency has this authority even
when there is no express reconsideration authority, provided that reconsideration occurs within a
reasonable time after the first decision. 15 Here, Defendants contend that the Clean Water Act’s
broad grant of authority to the U.S. Army Corps of Engineers to issue Section 404 permits
explicitly includes the authority to reevaluate its permit decisions. 16 Citing Frito-Lay, Inc. v.
United States Department of Labor, a Northern District of Texas case, Defendants assert that an
agency may seek remand to reconsider its decision when its action is under review by a federal
court. 17 Defendants contend that remand should be refused only if the request is frivolous or made
in bad faith. 18 Defendants argue that remand will provide Plaintiffs with another opportunity to
submit comments and voice their concerns, and will allow Defendants to consider them in the
revised environmental assessment and determine whether it is in the public interest to modify,
suspend, or revoke the NOD-13. 19 Defendants also assert that remand may moot several of
Plaintiffs’ claims. 20 Defendants contend that remand will moot Plaintiffs’ claims that they were
not provided adequate notice and an opportunity to comment on NOD-13 because Plaintiffs will
be given an additional opportunity to do so, and the resulting reevaluation and revised
15
Id. at 6 (citing Sierra Club v. Van Antwerp, 560 F. Supp. 2d 21, 23 (D.C. Cir. 2008); Belville Mining Co.
v. United States, 999 F.2d 989, 997 (6th Cir. 1993)).
16
Id. at 6 (citing 33 C.F.R. § 325.7(a)).
17
Id. at 5 (citing 20 F. Supp. 3d 548, 552–53 (N.D. Tex. 2014)).
18
Id. (citing SKF USA, Inc. v. United States, 254 F.3d 1022, 1027–28 (Fed. Cir. 2001)).
19
Id. at 6–7.
20
Id. at 7.
4
environmental assessment may also moot the claims that Defendants failed to undertake the
environmental reviews of NOD-13 under the CWA and NEPA. 21
Defendants also argue that granting remand without vacatur will not harm Plaintiffs or the
public in general because NOD-13 applies in limited circumstances to projects that have only
minor impacts on the environment. 22 Furthermore, Defendants contend that the majority of the
projects that have been authorized since NOD-13 was extended in 2014 are located outside the
geographical area of concern to Plaintiffs. 23 In addition, Defendants assert that vacating the
permits of the permittees could significantly increase the permittees’ costs, requiring them to cease
construction until they are able to resubmit their projects for approval, and vacating the permits
will increase the workload for Defendants’ employees who will be working to reevaluate NOD13 in a compressed timeframe. 24
Defendants also request a temporary stay of the proceedings, contending that a stay will
conserve judicial resources and allow the parties to avoid unnecessary litigation. 25 Furthermore,
Defendants assert that reevaluation of NOD-13 is the remedy that Plaintiffs would receive if they
were successful on the merits of their First Amended Complaint, because it is only in rare
circumstances where remand for agency reconsideration is not the appropriate solution when an
agency decision is determined not to be sustainable under the Administrative Procedure Act’s
21
Id.
22
Id.
23
Id.
24
Id. at 7–8.
25
Id. at 8 (citing Frito-Lay, Inc. v. U.S. Dep’t of Labor, 20 F. Supp. 3d 548, 553 (N.D. Tex. 2014)).
5
standard of review. 26 In addition, they assert that any changes that may be prompted by the
reevaluation will constitute a new agency action, the review of which would be based upon a new
administrative record. 27
B.
Plaintiffs’ Arguments in Opposition to Voluntary Remand and a Temporary Stay
Plaintiffs assert that stays of litigation are disfavored and the Federal Rules of Civil
Procedure provide that the rules should be construed, administered, and employed “to secure the
just, speedy, and inexpensive determination of every action and proceeding.” 28 Plaintiffs contend
that stays are only appropriate when “a case falls within the extraordinary and narrow exception,
warranting surrender of the virtually unflagging obligation to exercise jurisdiction.” 29 Plaintiffs
argue that although Defendants claim that their request is intended to conserve judicial resources,
Plaintiffs contend that it is the duty of a district court not to sidestep or delay decision. 30
Furthermore, Plaintiffs contend that Defendants do not need the Court’s permission to
reevaluate NOD-13, 31 and, in fact, two of the plaintiffs in this case petitioned Defendants for
reconsideration of the permit more than one year ago, a request that Defendants ignored. 32
Plaintiffs argue that Defendants now seek only to delay the litigation. 33 In addition, Plaintiffs
26
Id. (citing Frito-Lay, Inc., 20 F. Supp. 3d at 553, 555).
27
Id. (citing O’Reilly v. U.S. Army Corps. of Eng’rs, 447 F.3d 225, 238–39 (5th Cir. 2007)).
28
Rec. Doc. 30 at 1 (citing Fed. R. Civ. P. 1; Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981)).
29
Id. at 3 (citing Safety Nat’l Cas. Corp. v. Bristol-Myers Squibb Co., 214 F.3d 562, 564 (5th Cir. 2000)).
30
Id. at 3 (quoting Itel Corp. v. M/S Victoria U, 710 F.2d 199, 202 (5th Cir. 1983)).
31
Id. at 2 (citing Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 541–42 (1970)).
32
Id.
33
Id.
6
assert that there is no assurance that Defendants will reform or terminate the permit as they only
state that they “may modify, suspend, or revoke [the general permit],” and they only make this
assertion 147 days after being sued. 34 Plaintiffs contend that Defendants’ assertion that remand
may moot the claims does not support a stay. 35 In support, Plaintiffs cite an Eastern District of
Louisiana case, St. Bernard Citizens for Environmental Quality, Inc. v. Chalmette Refining, L.L.C.,
where Plaintiffs assert that the court denied a stay, in part because the defendant had “not
demonstrated that some future order from the LDEQ will definitively moot plaintiffs’ enforcement
claim.” 36
Plaintiffs also assert that a stay of this case would prejudice Plaintiffs because it would
allow Defendants to continue to authorize the destruction of wetlands without public notice or
environmental analyses that the law requires. 37 Plaintiffs contend that these actions threaten the
Atchafalaya Basin, upon which Plaintiffs’ Cajun crawfishermen members rely for their
livelihoods. 38 In addition, Defendants contend that Plaintiffs’ members will continue to suffer fear
and concern about the general permit’s imminent use and impacts. 39 Plaintiffs assert that a stay
would allow Defendants to continue their illegal action because Defendants did not meet the
prerequisites to issue a general permit pursuant to the Clean Water Act. 40
34
Id. at 3.
35
Id.
36
Id. at 4 (quoting 348 F. Supp. 2d 765, 768 (E.D. La. 2004)).
37
Id. at 2.
38
Id.
39
Id. at 5–6.
40
Id. at 9.
7
Plaintiffs assert that a party seeking a stay “must make out a clear case of hardship or
inequity in being required to go forward, if there is even a fair possibility that the stay for which
he prays will work damage to some one [sic]. . . .” 41 Plaintiffs contend that here, Defendants fail
to show any necessity or hardship in going forward with judicial review. 42 Plaintiffs assert that
Defendants’ suggestion of delay for permittees or increased workload from having to re-permit
any of the authorized projects would be the consequence of a decision on the merits, not of
proceeding with the litigation. 43 In addition, Plaintiffs contend that Defendants speculate that its
permittees may be harmed if they lose this case; however, no permittee has intervened and no
evidence has been provided about the status of any of the projects at issue. 44 Plaintiffs also assert
that if a regional permit is revoked, a permittee may apply for an individual permit. 45 Furthermore,
Plaintiffs contend that Defendants offer no competent support for their assertion that granting
remand without vacatur of NOD-13 will not harm Plaintiffs or the public in general, and only cite
to conclusory assertions that are not supported by data or analysis. 46 Plaintiffs assert that
Defendants do not seek a suspension of the permit and offer no cure, or even a deadline for a final
decision on reconsideration. 47 Finally, Plaintiffs object to paragraph 3(i) of the Martin Mayer
Declaration as inadmissible, asserting that Defendants have not qualified Mayer as an expert
41
Id. at 4 (quoting In re Davis, 730 F.2d 176, 178 (5th Cir. 1984)).
42
Id.
43
Id. at 7.
44
Id. at 8.
45
Id. (citing 33 C.F.R. § 325.7).
46
Id. at 6.
47
Id. at 8.
8
pursuant to Federal Rule of Evidence 702, nor have Defendants demonstrated that his testimony
is based upon sufficient facts or data or the product of reliable principles and methods. 48
III. Law and Analysis
A.
Legal Standard
“Courts have long recognized the propriety of voluntarily remanding a challenged agency
action without judicial consideration of the merits, with or without admission of agency error.”49
“Embedded in an agency’s power to make a decision is its power to reconsider that decision.” 50
The regulations regarding Section 404 of the Clean Water Act, which provides for the issuance of
permits for the discharge of dredged or fill material into the navigable waters at specified disposal
sites, expressly provide for a district engineer to reconsider its determination regarding a regional
permit. 51 The regulations state that “[t]he district engineer may reevaluate the circumstances and
conditions of any permit, including regional permits, [] on his own motion . . . and initiate action
to modify, suspend, or revoke a permit as may be made necessary by considerations of the public
interest.” 52 However, an agency may not reconsider its own decision if doing so would be
“arbitrary, capricious, or an abuse of discretion.” 53 “[R]econsideration also must occur within a
reasonable time after the decision being reconsidered was made, and notice of the agency’s intent
48
Id. at 6–7.
49
Frito-Lay, Inc. v. United States Dep’t of Labor, 20 F. Supp. 3d 548, 552–53 (N.D. Tex. 2014) (citing
Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126, 132 (D.D.C. 2010)). See also ConocoPhillips Co. v. U.S.
Envtl. Prot. Agency, 612 F.3d 822, 832 (5th Cir. 2010).
50
ConocoPhillips Co., 612 F.3d at 832.
51
33 C.F.R. § 325.7(a).
52
Id.
53
Id. (quoting Macktal v. Chao, 286 F.3d 822, 825 (5th Cir. 2002)).
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to reconsider must be given to the parties.” 54
B.
Analysis
Plaintiffs allege that the Corps: (1) did not perform an environmental assessment that meets
the requirements of NEPA in reissuing the NOD-13; (2) violated the Clean Water Act by failing
to consider whether activities authorized by NOD-13 would cause only minimal adverse
environmental effects on the environment; (3) violated the Clean Water Act by extending the
NOD-13 because it had already expired; (4) acted arbitrarily and capriciously in concluding, based
upon insubstantial evidence, that the category of activities authorized under NOD-13 would cause
minimal adverse environmental impacts; and (5) did not provide the required public notice and
opportunity for public participation when it reissued NOD-13. 55 Defendants contend that their
request for remand is neither frivolous nor made in bad faith and will give Defendants the
opportunity to consider and address Plaintiffs’ comments and concerns and to reevaluate the NOD13 and determine whether it is in the public interest to modify, suspend, or revoke NOD-13.56
Furthermore, they assert that remand will moot Plaintiffs’ claim that they were not provided
adequate notice and an opportunity to comment on NOD-13, and may moot the claim that
Defendants failed to undertake environmental reviews of NOD-13 under the CWA and NEPA.57
In opposition, Plaintiffs assert that two of the plaintiffs petitioned the Corps for reconsideration of
the permit more than a year ago and their request was ignored, and what the Corps seeks now is
54
Id.
55
Rec. Doc. 1 at 10–16.
56
Rec. Doc. 20-1 at 6–7.
57
Id. at 7.
10
pure delay. 58
Because the Corps has asserted that it will issue public notice, request public comment,
prepare a revised Environmental Assessment of NOD-13, consult with state and federal agencies
with an interest in NOD-13 or its application to specific projects, and conduct a re-evaluation of
NOD-13, actions that Plaintiffs allege Defendants failed to take when reissuing NOD-13, remand
will serve judicial economy and will give Defendants an opportunity to cure any potential
mistakes. Furthermore, the Fifth Circuit has held that, except in rare circumstances, as a general
rule, when a plaintiff alleges that “an agency decision is not sustainable on the basis of the
administrative record, the matter should be remanded to the agency for further consideration.” 59
Therefore, even if upon consideration of the merits the Court were to agree with Plaintiffs that the
Corps’ action was not based upon substantial evidence, the Court would likely remand the case
back to the Corps for further evaluation. Accordingly, the Court concludes that the reconsideration
is not arbitrary, capricious, or an abuse of discretion.
Next, the Court must consider whether reconsideration will occur within a reasonable time
after the decision to be reconsidered has been made. 60 The Corps determined on November 24,
2014 that issuing a time extension and modification of NOD-13 was in the public interest. 61 The
request for remand to reconsider its decision comes a year and a half later. In Frito-Lay, Inc., a
recent case from the Northern District of Texas, the court examined how courts in various circuits
58
Rec. Doc. 30 at 2.
59
O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 238–39 (5th Cir. 2007) (quoting Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 905 (5th Cir. 1983) (internal quotation marks omitted)).
60
ConocoPhillips Co. v. U.S. Envtl. Prot. Agency, 612 F.3d 822, 832 (5th Cir. 2010).
61
Rec. Doc. 20-1 at 3–4.
11
have treated the requirement that the reconsideration occur within a reasonable time, stating that
“[t]he only guideline to be gleaned from the cases is that courts analyze the facts of each case in
an effort to reach an equitable outcome.” 62 Plaintiffs assert that the Corps waited 147 days after
being sued before suggesting that it may reevaluate its permit. 63 However, the record reflects that
the Corps was not served until January 11, 2016, and pursuant to Federal Rule of Civil Procedure
12(a)(2), Defendants had sixty days to file a responsive pleading. The Court granted Defendants’
unopposed motion for an extension of time, and the deadline to respond to the complaint was set
for April 8, 2016. 64 Defendants filed the instant motion a little over a month later. 65 Therefore,
Plaintiffs’ representation that Defendants waited 147 days before filing the instant motion is
misleading. Accordingly, the Court concludes that Defendants’ request for reconsideration was
made within a reasonable time as it was filed shortly after filing their answer.
Defendants also request a temporary stay of litigation until June 30, 2017. 66 Plaintiffs
assert that stays are disfavored and a stay in this case would prejudice Plaintiffs’ members because
the Corps would be permitted to continue authorizing the destruction of wetlands without the
public notice or environmental analyses that the law requires. 67 Plaintiffs also assert that nothing
precludes the Corps from reconsidering NOD-13 while this judicial review proceeds and the Corps
62
Frito-Lay, Inc. v. United States Department of Labor, 20 F. Supp. 3d 548, 552–53 (N.D. Tex. 2014).
63
Rec. Doc. 30 at 3.
64
Rec. Doc. 16.
65
Rec. Doc. 20.
66
Rec. Doc. 20-1 at 1.
67
Rec. Doc. 30 at 2–3 (citing Safety Nat’l Cas. Corp. v. Bristol-Myers Squibb Co., 214 F.3d 562, 564 (5th
Cir. 2000)).
12
has not demonstrated prejudice in proceeding with judicial review. 68 Federal courts have a
“virtually unflagging obligation” to exercise the jurisdiction given to them. 69 However, the Court
also has the inherent power to stay a matter pending before it in the interest of justice and “economy
of time and effort for itself, for counsel and for litigants.” 70 For the reasons articulated above, the
Court agrees that a stay is appropriate in this case to allow Defendants time to reevaluate the NOD13. Although Plaintiffs argue that the Corps is not prohibited from reconsidering NOD-13 during
judicial review, the simultaneous review before this Court and the Corps will not serve judicial
economy.
Defendants assert that they anticipate the reevaluation to take a year; however, the Court
concludes that a 90-day stay is more appropriate. Defendants do not admit error in their request
for remand, and do not even provide a guarantee that they will take any action by June 30, 2017,
instead requesting that the Court schedule a status conference in July 2017 in order for the Court
to decide whether to continue the stay if the Corps has not taken final action by that time. 71 The
Court will not grant Defendants the opportunity to delay this litigation indefinitely. Accordingly,
because Defendants simply request an opportunity to reconsider their decision, and the Court finds
this to be in the interest of judicial economy, the Court will grant Defendants’ request for a stay,
but the stay will be limited to ninety (90) days from the signing of this Order.
68
Id. at 7.
69
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
70
Dresser v. Ohio Hempery, Inc., No. Civ. A. 98-2425, 2004 WL 464895, at *2 (E.D. La. Mar. 8, 2004)
(Vance, J.).
71
Rec. Doc. 20-1 at 2.
13
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that Defendants’ “Motion for Voluntary Remand and
Temporary Stay of This Case” 72 is GRANTED IN PART.
IT IS FURTHER ORDERED that the case will be remanded and the litigation will be
temporarily stayed for a period of ninety (90) days from the signing of this Order.
IT IS FURTHER ORDERED that Defendants are to submit a status report forty-five (45)
days from the signing of this Order detailing the actions that they have taken in furtherance of the
reevaluation, as well as a status report upon the conclusion of the ninety-day stay.
8th
NEW ORLEANS, LOUISIANA, this ________ day of June, 2016.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
72
Rec. Doc. 20.
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