Atchafalaya Basinkeeper et al v. U.S. Army Corps of Engineers

Filing 51

ORDER denying 40 Motion to Stay. Signed by Judge Nannette Jolivette Brown on 12/29/2016. (mmm)

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,1 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 (“GP-13”). 2 Pending before the Court is Defendants’ “Motion for
Continuation of Temporary Stay of this Case.”3 Having reviewed the motion, the memorandum
in support, the memorandum in opposition, the record, and the applicable law, the Court will deny
the motion.

1

Plaintiffs’ complaint originally named as a defendant Lieutenant General Thomas P. Bostick, in his official
capacity as Chief of Engineers. Lieutenant Todd T. Semonite has replaced Lieutenant General Thomas P. Bostick as
the Chief of Engineers and is thereby automatically substituted as a defendant. See Rec. Doc. 40 at 1; Fed. R. Civ. P.
25(d).
2

Rec. Doc. 1 at 1–2. New Orleans District General Permit (“GP-13”) was formerly known as “NOD-13.”
See Rec. Doc. 40-1 at 1.
3

Rec. Doc. 20.

1

I. Background
A.

Factual Background
In the First Amended Complaint, Plaintiffs allege that this case is about the Corps’ response

to the expiration of GP-13 on December 31, 2012. 4 Plaintiffs allege that GP-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”). 5 Plaintiffs allege that although the Corps was
required to provide public notice and undertake environmental reviews under the Clean Water Act
(“CWA”) and NEPA, when GP-13 expired in 2012, the Corps continued to authorize projects
under the expired general permit for almost two years, and reissued GP-13 without complying with
legal mandates for public participation and environmental review.6
B.

Procedural Background
Plaintiffs filed the original complaint on December 22, 2015. 7 Plaintiffs filed a First

Amended Complaint on March 11, 2016.8 Defendants filed a motion for voluntary remand and
temporary stay of the case on May 17, 2016.9 On June 8, 2016, the Court granted the motion in

4

Rec. Doc. 12 at 1.

5

Id.

6

Id. at 1–2.

7

Rec. Doc. 1.

8

Rec. Doc. 12.

9

Rec. Doc. 20.

2

part and ordered that the case be remanded and the litigation temporarily stayed for a period of 90
days.10 The Court further ordered that Defendants submit a status report 45 days from the signing
of the order detailing the actions they had taken in furtherance of the reevaluation, as well as a
status report upon the conclusion of the 90-day stay.11 On September 6, 2016, Defendants filed
the instant motion for a continuation of the temporary stay of the case. 12 Plaintiffs filled an
opposition to the motion on September 14, 2016.13 With leave of Court, Defendants filed a reply
on September 23, 2016.14
II. Parties’ Arguments
A.

Defendants’ Arguments in Support of a Continuation of the Temporary Stay
Defendants request a continuation of the 90-day temporary stay of the case until July 7,

2017.15 Defendants aver that a continuation of the temporary stay is necessary for five reasons.16
First, Defendants assert that on July 1, 2016, the Corps issued public notice of its intent to
reevaluate GP-13 and solicited public comments concerning GP-13 until July 25, 2016. 17
Defendants further assert that the Corps has voluntarily ceased using GP-13 to authorize new

10

Rec. Doc. 35 at 14.

11

Id.

12

Rec. Doc. 40.

13

Rec. Doc. 43.

14

Rec. Doc. 47.

15

Rec. Doc. 40-1 at 1.

16

Id. at 2–3.

17

Id. at 2.

3

projects that may impact waters of the United States until the reevaluation is complete. 18
According to Defendants, “projects requesting authorization that do not fall under the purview of
a different regional or programmatic permit will be evaluated under the standard permitting
procedures, which provide for public notice and comment.”19 Thus, Defendants aver, Plaintiffs
will have the opportunity to review and to comment on such projects while the Corps “continues
its thorough reevaluation of the challenged permit.”20
Second, Defendants aver that the Corps published a 20-day special public notice, which it
posted to its website and forwarded by email to Plaintiffs’ counsel and to local, state, and federal
regulatory and resource agencies.21 According to Defendants, the Corps received 373 pages of
comments and supporting materials concerning the reevaluation of GP-13 within the comment
period, including “lengthy comments” from Plaintiffs and Plaintiffs’ counsel.22 Defendants assert
that the Corps is in the process of evaluating the letters and supporting materials.23
Third, Defendants assert that the Corps has submitted two status reports to the Court, as
required by the Court’s order, which provided “a detailed description of actions it has taken in
furtherance of the reevaluation of GP-13” and other relevant events since the Court’s order.24
Defendants contend that these status reports demonstrate “the ongoing, good faith efforts”

18

Id.

19

Id.

20

Id.

21

Id.

22

Id. at 2–3.

23

Id. at 3.

24

Id.

4

undertaken by the Corps to solicit suggestions from local, state, and federal regulatory authorities
and resource agencies, as well as other interested parties.25 Fourth, Defendants assert that upon
completion of a revised draft of GP-13, the Corps plans to submit it for an additional period of
public comment. 26 According to Defendants, the process of drafting potential modifications,
providing notice, and receiving additional comments will take approximately 90 days.27
Finally, Defendants estimate that completing an Environmental Assessment for the revised
version of GP-13 will take an additional six months.28 According to Defendants, the process of
drafting an Environmental Assessment is a “multi-disciplinary effort that requires the agency to
evaluate the evidence regarding the purpose and need for GP-13, to identify reasonable alternatives
to the permit, and to assess the potential environmental impacts of the permit as well as the
alternative actions, in addition to listing the agencies and persons consulted.” 29 Defendants
contend that in light of the “extensive list of considerations that may be incorporated into the
assessment,” an extension of the temporary stay of proceedings for an additional nine months will
conserve judicial resources and allow the parties to avoid unnecessary litigation.30 Defendants
further argue that the Corps has voluntarily ceased authorizing new work under GP-13 until the
reevaluation is complete and that Plaintiffs are able to review and comment on individual projects

25

Id.

26

Id.

27

Id.

28

Id.

29

Id. (citing 40 C.F.R. § 1508.9).

30

Id. at 3–4 (citing Frito-Lay, Inc. v. U.S. Dep’t of Labor, 20 F. Supp. 3d 548, 553 (N.D. Tex. 2014) (citing
Sierra Club v. Van Antwerp, 560 F. Supp.2d 21, 24–25 (D.D.C. 2008)).

5

seeking authorization under the standard permitting procedures in the meantime. 31 Thus,
Defendants argue, a continuation of the stay will not prejudice Plaintiffs.32
Defendants request that the Court grant an extension of the stay until July 7, 2017, with
Defendants providing status reports of its reevaluation of GP-13 within 90, 180, and 270 days of
the Court’s order.33 Defendants further propose that they notify the Court and the parties within
ten days of taking final action on GP-13.34
B.

Plaintiffs’ Arguments in Opposition to a Continuation of the Temporary Stay
Plaintiffs argue that the Court has already rejected an equivalent request to stay resolution

of this case until next summer and that the Court should reject Defendants’ request for an extension
of the temporary stay for the same reasons: (1) the delay that the Corps seeks is effectively
indefinite; (2) the Corps continues to avoid admitting error; and (3) the Corps provides no
guarantee that it will take any action by a certain date.35 Plaintiffs contend that Defendants’ motion
“raises the prospect of indefinite delay.”36 Plaintiffs aver that Defendants’ request for an extension
of the temporary stay is premised on the need to conduct an Environmental Assessment, which
will take an additional six months.37 According to Plaintiffs, such an assessment is conducted to
determine whether to prepare an environmental impact statement, so there is no guarantee that

31

Id. at 4.

32

Id. at 7–8.

33

Id. at 4–5.

34

Id. at 5.

35

Rec. Doc. 43 at 3.

36

Id. at 4.

37

Id.

6

Defendants will not request further delay in July 2017 to conduct additional analyses.38 According
to Plaintiffs, analyses under NEPA can extend for years.39
Furthermore, Plaintiffs contend that the Corps has still not admitted error.40 Plaintiffs aver
that the Court has recognized that one of their claims is that the Corps did not perform an
environmental assessment that meets the requirements of NEPA in reissuing the GP-13. 41
Plaintiffs contend that Defendants’ request for delay includes six months for completing such an
environmental assessment.42 However, according to Plaintiffs, rather than owning up to its error,
“the Corps seeks a voluntary ‘do-over’ without vacatur, so that it may carry on the administration
of the general permit without the prospect of judicial comment on the illegality of its conduct.”43
Next, Plaintiffs argue that a stay is unnecessary for the Corps to complete its GP-13
reevaluation and that going forward with the litigation will serve the interests of justice. 44
Plaintiffs contend that in order to extend the stay, the Corps “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 [someone] else.”45 Plaintiffs argue that Defendants have failed to

38

Id. (citing 40 C.F.R. § 1508.9).

39

Id.

40

Id.

41

Id. (citing Rec. Doc. 35).

42

Id. (citing Rec. Doc. 40-1).

43

Id. at 4–5.

44

Id. at 5.

45

Id. (citing In re Davis, 730 F.2d 176, 178 (5th Cir. 1984) (quoting Landis v. N. Am. Co., 299 U.S. 248, 255

(1936)).

7

meet this burden, because nothing precludes the Corps from reconsidering the permit while judicial
review proceeds.46 Plaintiffs contend that the time remaining for litigation would be minimal and
a resolution on the merits could be speedy, as they have already submitted their motion for
summary judgment.47 Plaintiffs further argue that delaying the case would “circumvent justice and
judicial economy” because it would allow the Corps to avoid responsibility for—and even repeat—
its CWA and NEPA violations.48
Finally, Plaintiffs contend that further delay would prejudice Plaintiffs.49 Plaintiffs argue
that evidence in the record shows that the Corps’ practice of mismanagement of the Atchafalaya
Basin and Louisiana’s wetlands injures the Plaintiffs’ members.50 Plaintiffs point to testimony
from fishermen and an email from a Corps employee as evidence of the impact of the Corps’
mismanagement. 51 Plaintiffs argue that the Corps’ practice of mismanagement has included
unlawfully reauthorizing the general permit at issue for over 34 years and that this type of conduct
may continue without judicial review.52 Plaintiffs also assert that they have sought a declaratory
judgment in this matter to address this concern.53 Furthermore, Plaintiffs contend that the Corps
is not currently bound to maintain the status quo during a stay and that voluntary cessation of

46

Id. at 5 (citing Am. Farm Lines v. Black Ball Freight Serv., 297 U.S. 532, 541 (1970)).

47

Id. at 6 (citing Rec. Doc. 27).

48

Id.

49

Id.

50

Id.

51

Id. at 7.

52

Id.

53

Id.

8

challenged activities should not interfere with a court’s determination on the merits.54
C.

Defendants’ Reply in Further Support of a Continuation of the Temporary Stay
In their reply, Defendants argue that denying the request for a continuation of the temporary

stay would not speed up the process of analyzing the environmental impacts of GP-13.55 To the
contrary, Defendants assert, Plaintiffs’ request that the permit be vacated would “unnecessarily
divert the Corps’ limited resources away from the research of the environmental impacts and the
preparation of the very review that is sought by Plaintiffs.”56 Defendants further argue that they
are requesting an extension of nine and a half months—not an indefinite period of time—to
evaluate additional comments on the revised draft of GP-13 and to complete the environmental
assessment.57
According to Defendants, an extension of the stay would not cause harm to Plaintiffs,
because they are being provided the opportunity to review and comment “not only on GP-13 as a
programmatic permit, but also on individual projects, which would have otherwise fallen under
the umbrella of GP-13.” 58 Defendants also assert that the Corps has fully complied with the
Court’s remand order and that if a continuation of the temporary stay was granted, the Corps would
continue to file status reports with the Court on the progress of its GP-13 reevaluation. 59

54

Id. at 8 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 169–70 (2000)).

55

Rec. Doc. 47 at 2.

56

Id.

57

Id.

58

Id.

59

Id. at 3.

9

Defendants argue that an extension of the temporary stay would allow the Court to monitor the
progress of the reevaluation process while conserving judicial resources and avoiding unnecessary
litigation.60
III. Law and Analysis
A.

Legal Standard
Federal courts have a “virtually unflagging obligation” to exercise the jurisdiction given to

them.61 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.”62 However, “the
moving party bears a heavy burden to show why a stay should be granted.”63 Moreover, “[w]here
a discretionary stay is proposed, something close to genuine necessity should be the mother of its
invocation.”64
B.

Analysis
Defendants seek a continuation of the Court’s 90-day temporary stay for the following

reasons: (1) the Corps has issued public notice of its intent to reevaluate GP-13 and Plaintiffs will
have the opportunity to review and comment on projects requesting authorization while the Corps

60

Id. (citing Frito-Lay, Inc. v. U.S. Dep’t of Labor, 20 F. Supp. 3d 548, 553 (N.D. Tex. 2014) (citing Sierra
Club v. Van Antwerp, 560 F. Supp.2d 21, 24–25 (D.D.C. 2008))
61

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). See also Black Sea
Investment, Ltd. v. United Heritage Corp., 204 F.3d 647, 650 (5th Cir. 2000).
62

Dresser v. Ohio Hempery, Inc., No. Civ. A. 98-2425, 2004 WL 464895, at *2 (E.D. La. Mar. 8, 2004)
(Vance, J.). See also McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982) (“The district court has a general
discretionary power to stay proceedings before it in the control of its docket and the interests of justice.”).
63

Case v. Merck & Co., No. 02-1779. 2003 WL 145427, at *2 (E.D. La. Jan. 17, 2003) (Vance, J.) (citing
Coastal (Bermuda) Ltd. v. E.W. Saybolt & Co., 761 F.2d 198, 203 n.6 (5th Cir. 1985)).
64

Coastal (Bermuda) Ltd. v. E.W. Saybolt & Co., 761 F.2d 198, 203 n.6 (5th Cir. 1985).

10

conducts its reevaluation; (2) the Corps is in the process of evaluating the comments it received in
response to its public notice of its reevaluation of GP-13; (3) the Corps has submitted two status
reports, which demonstrate its good faith efforts to consider and implement suggestions from
stakeholders; (4) upon completion of a revised draft of GP-13, the Corps plans to submit it for an
additional period of public comment, which it estimates will take approximately 90 days; and (5)
the Corps estimates that completing an Environmental Assessment for the revised version of GP13 will take an additional six months. 65 Plaintiffs contend that Defendants have failed to
demonstrate that a continuation of the temporary stay is necessary.66 Plaintiffs further argue that
the Corps has not admitted fault or provided a guarantee that it will take action by a specified date
and that a continuation of the stay would harm Plaintiffs.67
In its prior order rejecting Defendants’ request for a stay until June 30, 2017, the Court
held that it would not “grant Defendants the opportunity to delay this litigation indefinitely.”68 In
the interest of judicial economy, the Court instead granted a limited 90-day stay to allow
Defendants time to reevaluate GP-13. 69 In reaching its decision that a 90-day stay was more
appropriate, the Court noted that Defendants did not admit error and did not even provide a
guarantee that they would take any action by June 30, 2017.70 Neither of these concerns have been

65

Rec. Doc. 40-1 at 2–3.

66

Rec. Doc. 43 at 5.

67

Id. at 4, 6.

68

Rec. Doc. 35 at 13.

69

Id.

70

Id.

11

addressed by Defendants since the Court’s prior order. Although the Court notes that Defendants
have begun the process of reevaluating GP-13 and have estimated that an Environmental
Assessment will take six months, 71 Defendants have still not admitted error or offered a
guaranteed date by which they will take final action regarding GP-13.
Moreover, Plaintiffs have shown how a continued stay of this matter could harm them.72
They have alleged that their members have suffered and continue to suffer economic injury and
decreased enjoyment of the Atchafalaya Basin as a result of Defendants’ alleged violations.73
Defendants argue that GP-13 will not cause Plaintiffs harm during the reevaluation process,
because the Corps has voluntarily ceased authorizing new work under GP-13 until the reevaluation
is complete and Plaintiffs will have the opportunity to review and comment on new projects while
the Corps continues its reevaluation of GP-13.74
However, the Corps is not bound to maintain this arrangement. In a case specifically
considering a permit governed by the CWA and in rejecting the defendant’s argument that the
plaintiffs’ claims were rendered moot once the defendant came into substantial compliance with
its permit, the Supreme Court stated, “A defendant’s voluntary cessation of a challenged practice
ordinarily does not deprive a federal court of its power to determine the legality of the practice.”75

71

Rec. Doc. 40-1 at 2, 3.

72
See In re Davis, 730 F.2d 176, 178 (5th Cir. 1984) (The 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] else.”) (quoting Landis v. North Am. Co., 299 U.S. 248, 254–55 (1936)).
73

See Rec. Docs. 12 at 4–5; 43 at 6–7.

74

Rec. Doc. 40-1 at 4.

75

Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 169–70 (2000) (internal citation omitted).

12

Defendants assert that denial of a continuation of the stay “would not speed up the process of
analyzing the environmental impacts of GP-13,” but Defendants have not shown that a denial of
the continuation of the stay would cause undue harm or prejudice to Defendants.76 Moreover,
Defendants are not precluded from reevaluating GP-13 while judicial review of Plaintiffs’ claims
proceed, and they do not argue otherwise.77
IV. Conclusion
The Court finds that Defendants have not demonstrated that a continuation of the temporary
stay of this case is warranted.78 Moreover, the Court finds that Plaintiffs have demonstrated that
they could be harmed by a continuation of the temporary stay. 79 Finally, Defendants are not
precluded from reevaluating GP-13 while judicial review of Plaintiffs’ claims proceed. 80 The
Court concludes that interests of justice mitigate against an extension of the temporary stay.

76

See In re Davis, 730 F.2d 176, 178 (5th Cir. 1984) (The 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] else.”) (quoting Landis v. North Am. Co., 299 U.S. 248, 254–55 (1936)).
77
See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 541 (1970) (holding that the agency, the
Interstate Commerce Commission, had the power to reconsider its prior decision under its governing statute and that
the power of the agency to reconsider a prior decision “does not necessarily collide with the judicial power of
review.”). See also St. Bernard Citizens for Envtl. Quality, Inc., et al. v. Chalmette Refining, LLC, 348 F.Supp.2d 765,
768 (E.D. La. 2004) (Vance, J.) (denying defendant’s request for a stay even where the environmental agency had
initiated enforcement actions and permit negotiations); Apalachicola Riverkeeper v. Taylor Energy Co., LLC, 954
F.Supp.2d 448, 459 (E.D. La. 2013) (Morgan, J.) (denying defendant’s request for a stay of plaintiffs’ CWA and
RCRA where Coast Guard-directed force was responding to oil spill).
78

Case v. Merck & Co., No. 02-1779. 2003 WL 145427, at *2 (E.D. La. Jan. 17, 2003) (Vance, J.) (“The
moving party bears a heavy burden to show why a stay should be granted.”)(citing Coastal (Bermuda) Ltd. v. E.W.
Saybolt & Co., 761 F.2d 198, 203 n. 6 (5th Cir. 1985)).
79

See In re Davis, 730 F.2d at 178.

80

See Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 541 (1970).

13

Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Motion for Continuation of Temporary
Stay of this Case”81 is DENIED.

29th
NEW ORLEANS, LOUISIANA, this ________ day of December, 2016.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

81

Rec. Doc. 40.

14