Louisiana Crawfish Producers Association - West et al v. Mallard Basin Inc et al

Filing 165

MEMORANDUM RULING. The 138 Motion to Compel is DENIED, without prejudice to the rights of the plaintiffs to re-urge the motion if appropriate. 143 Motion for Protective Order is granting in part and denying in part. The motion is GRANTED to th e extent that the plaintiffs will not be allowed additional discovery relative to the claims based on the Clean Water Act and the Endangered Species Act. The motion is DENIED to the extent that the plaintiffs will be allowed to pursue additional disc overy, limited to the NEPA challenge to the adequacy of the Corps analysis of the alternatives or impacts associated with the permits at issue. The claims of the parties for costs/expenses and fees for these motions are DENIED. Signed by Magistrate Judge Patrick J Hanna on 8/25/2014. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LOUISIANA CRAWFISH
PRODUCERS ASSOCIATION-WEST

CIVIL ACTION NO. 10-CV-1085
consolidated with 11-CV-461

VERSUS

JUDGE DRELL

MALLARD BASIN, INC.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the undersigned are the plaintiff’s Motion to Compel Entry onto
Land [Doc. 138] and a Motion for Protective Order, Motion to Quash and Motion
to Limit Review to the Administrative Record filed by the Corps of Engineers,
Thomas Bostick and Robert L. Van Antwerp (hereinafter collectively the COE).
[Doc. 143].

For the reasons articulated below, the motions are granted in part

and denied in part.
Doc. 138

Plaintiffs’ Motion to Compel Entry onto Land

The plaintiffs seek an order compelling the defendants and intervenors to
allow entry onto land pursuant to Fed.R.Civ.P. 34 for the purpose of inspection,
measuring, surveying, photographing, testing, or sampling. They assert they have
made several requests for inspection beginning in March, 2013, but despite the
indication from this Court in a telephone conference on October 29, 2013 that

some discovery would be allowed, including entry onto land, the
defendants/intervenors have failed to permit the inspection to date. The plaintiffs
assert that the primary purpose of the intended site visit is to obtain information
discoverable and relevant to the claims made in the lead and member cases. They
assert that the burden to the defendants/intervenors is minimal, and they seek entry
of an order compelling the inspection on land claimed by any/all of the
defendants/intervenors. They also seek an award of costs and fees incurred
incident to the motion.
In opposition to the motion [Rec. Doc. 142], the defendants/intervenors
contend that the motion is premature, since the Court has not yet entered a
scheduling order in the case. They further contend that the plaintiffs’ entry onto
the private property of the defendants/intervenors will not lead to relevant
evidence, since the Corps of Engineers’ ruling at issue in the citizen suit filed by
the Louisiana Environmental Action Network has mooted plaintiffs’ allegations
against the defendants/intervenors. They also argue that the plaintiffs should not
be entitled to a “crawfishing expedition” to search for new alleged violations
because they are unhappy with the Corps of Engineer’s ruling on the permits.
Finally, they argue that the Corps of Engineers conducted an announced site
inspection on March 30, 2012 that focused on the merits of the allegations in the
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plaintiffs’ 2010 lawsuit. Since the plaintiffs did not participate in that inspection
of their own volition, they should not now be allowed a new open-ended trip. In
the event the Court should order a new inspection, the defendants/intervenors
request that it be limited to one day, with two plaintiff participants, accompanied
by a representative of the private and federal defendants, and confined to visual
inspection and photographing of levees, pumps, and weirs and Louisiana black
bear.
On February 19, 2014, this Court ordered that ruling on the motion would
be deferred and the plaintiffs were ordered to confect an appropriate Rule 34
notice to be served upon the parties, who would then have the opportunity to lodge
objections prior to a ruling by the Court. [Rec. Doc. 148]. To date, this Court has
not been made aware of service of such a notice upon the parties or the lodging of
any objections by any party. The Court therefore assumes that the issues presented
in the instant motion have been amicably resolved, or otherwise rendered moot.
The motion is therefore DENIED, without prejudice to the rights of the plaintiffs
to re-urge the motion if appropriate.
Doc. 143

The Motion to Limit Review to the Administrative Record, for a
Protective Order, and to Quash Subpoena

In response to the plaintiffs’ service of a notice of deposition and a

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subpoena for the deposition of Michael Herrmann of the Corps of Engineers New
Orleans District, the COE filed the instant motions, seeking to have the Court
enter an order limiting review in this matter to the administrative record,
consistent with the Administrative Procedure Act (APA), 5 U.S.C. §706. They
also sought to have the Court quash the subpoena and enter a protective order
under Fed.R.Civ.P. 26(c) to bar any further discovery against the COE.
The Motion to Quash was granted on February 19, 2014. [Rec. Doc. 148].
The remaining aspects of the motion remain pending. The COE argued that this is
not a typical case where the plaintiffs seek the introduction of extra-record
documents like declarations and expert reports not otherwise included in the
administrative record. Instead, the plaintiffs seek to undertake full-blown
discovery which the COE characterizes as a “crawfishing expedition.” They assert
the administrative record contains not only sufficient detail of environmental
impact studies conducted during the permitting process, but also the comments,
objections and other submissions of the plaintiffs during the comment period.
They argue that the additional discovery sought by the plaintiffs, for the purposes
of preparing post-decisional expert reports beyond the reports and testimony
already placed in the record by the plaintiffs, is overbroad and beyond any
possible exceptions to the “record rule.”
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In response, the plaintiffs argue that the issue of whether the plaintiffs
should be allowed to conduct discovery is distinct from the issue of whether the
Court can ultimately consider the extra-record evidence the discovery produces.
Since Rule 26 allows liberal discovery-even in APA cases, the plaintiffs argue that
discovery should be allowed to go forward, leaving for another time the
determination of whether the discovered evidence will be considered by the Court.
The plaintiffs also contend that, because they have asserted violations of the
National Environmental Policy Act (NEPA), 42 U.S.C. §4321-70h, the NEPA
exception should apply, but until the discovery at issue is undertaken and the
“facts are fleshed out via discovery,” the Court cannot properly determine whether
the NEPA exception or other exceptions to the record rule will apply.
There is no dispute among the parties that the plaintiffs’ complaint alleges
violations of NEPA, as well as the Endangered Species Act, 16 U.S.C. §1531-54,
and the Clean Water Act (CWA), 33 U.S.C. §1251-1387. All the claims challenge
federal agency action, and such challenges are governed by the APA. At §706, the
APA sets out the scope of review of the agency actions at issue in this litigation:
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the
terms of an agency action. The reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably delayed; and
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(2) hold unlawful and set aside agency action, findings, and conclusions
found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken of
the rule of prejudicial error.

Under the APA, “[t]he task of the reviewing court is to apply the
appropriate standard of review, 5 U.S.C. § 706 to the agency decision based on the
record the agency presents to the reviewing court. . . .’The focal point for judicial
review should be the administrative record already in existence, not some new
record made initially in the reviewing court.’” Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44 (1985) quoting Camp v. Pitts, 411 U.S. 138, 142
(1973), cited in Sierra Club v. Peterson, 185 F.3d 349, 369 (5th Cir. 1999). The

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“record rule” has developed as a gesture of comity to the increasing delegation of
power to administrative agencies. It recognizes the comprehensive nature of
administrative procedures as well as the expertise of the agency in formulating
public policy. Save Our Wetlands v. Conner, 1999 WL 508365 *1 (E.D.La. 1999);
Susannah T. French, Judicial Review of the Administrative Record in NEPA
Litigation, 81 Calif. L.Rev. 929, 990 (1993).
The plaintiffs correctly point out that review of NEPA cases is not
necessarily limited to the administrative record by the “record rule.” Unlike the
CWA, which has substantive environmental goals “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters” [33 U.S.C.
§1251], NEPA is strictly procedural. The statute does not command the agency to
favor an environmentally preferable course of action, only that it make its decision
to proceed with the action after taking a “hard look at environmental
consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, (1976)). “Indeed,
NEPA does not prohibit the undertaking of federal projects patently destructive of
the environment; it simply mandates that the agency gather, study, and disseminate
information concerning the projects' environmental consequences.” Sabine River
Authority. v. U.S. Department of Interior, 951 F.2d 669, 676 (5th Cir. 1992).
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“Other statutes may impose substantive environmental obligations on federal
agencies, but NEPA merely prohibits uninformed—rather than unwise—agency
action.” Id., (quoting Robertson, 490 U.S. 351.
NEPA requires, among other things, the preparation of a comprehensive
environmental impact statement (EIS) whenever proposals for legislation or other
major Federal actions1 significantly affect the quality of the human environment.
42 U.S.C. §4332(2)(C); 40 C.F.R. §1502. This includes exploration and objective
evaluation of all reasonable alternatives to the proposed action. The Court’s
evaluation of the adequacy of an EIS includes: “(1)whether the agency in good
faith objectively has taken a hard look at the environmental consequences of a
proposed action and alternatives; (2) whether the EIS provides detail sufficient to
allow those who did not participate in its preparation to understand and consider
the pertinent environmental influences involved; and (3) whether the EIS
explanation of alternatives is sufficient to permit a reasoned choice among
different courses of action.” Mississippi River Basin Alliance v. Westphal, 230
F.3d 170, 174-75(5th Cir. 2000).
Since the duty imposed by NEPA is to develop a comprehensive

1

An EIS is “not required for non major action or a major action which does not have significant impact on
the environment.” Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981).

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environmental analysis, extra-record evidence is often necessary to compare with
the administrative record and determine whether the agency has “adequately
considered the environmental impact under NEPA of a particular project.” Sierra
Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River Authority, 951
F.2d at 678. Coliseum Square Association, et al. v. Jackson, et al., 465 F.3d 215,
247 (5th Cir. 2006).
As to the plaintiffs’ claims under the CWA and the Endangered Species Act,
this Court agrees the record rule applies. However, the jurisprudence is clear that
in NEPA actions, in the appropriate circumstances, the Court may deviate from the
“record rule” to consider extra-record evidence. The problem in this case, as both
sides concede, is that the plaintiff-requested discovery has not been narrowly
defined.
At this stage, the Court cannot determine whether the Court’s review
will/should be limited to the administrative record, and the Court does not
determine at this stage whether any evidence which may be discovered by the
plaintiffs will be relevant or otherwise admissible for review. What is apparent,
however, is that some discovery should be allowed to go forward. Therefore, the
Motion to Limit Review to the Administrative Record is DENIED as premature,
without prejudice to the COE’s right to renew its motion to limit review to the
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administrative record once the discovery allowed by this ruling has been
completed.
Fed. R.Civ.P.26(c) a court, on good cause shown, can issue a protective
order to protect a party from “annoyance, embarrassment, oppression, or undue
burden or expense.” To establish good cause, a movant must provide “a particular
and specific demonstration of fact, as distinguished from stereo-typed and
conclusory statements.” In re Terra International, Inc., 134 F.3d 302, 306 (5th
Cir.1998). (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir.
1978). Thus, notwithstanding the potential applicability of the record rule, the
burden is on the COE to establish the need to withhold extra-record evidence
during pre-trial discovery. See also Save Our Wetlands, Inc. v. Conner, 1999 WL
508365,*1 (E.D. La.1999).
Since the extra-record material that is the subject of the motions/arguments
before the Court has not been identified or adequately described by either side,
the COE cannot meet its burden to show “a particular and specific demonstration
of fact.” However, discovery devoted to the claims that are subject to the record
rule is not appropriate as those claims will only be considered on the
administrative record as a matter of law. Therefore, the Motion for Protective
Order will be granted in part and denied in part. The motion is GRANTED to the
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extent that the plaintiffs will not be allowed additional discovery relative to the
claims based on the Clean Water Act and the Endangered Species Act. The
motion is DENIED to the extent that the plaintiffs will be allowed to pursue
additional discovery, limited to the NEPA challenge to the adequacy of the Corps
analysis of the alternatives or impacts associated with the permits at issue. That
discovery may include the deposition of Michael Herrmann, on proper notice and
narrowed in scope by the rulings set out herein. The claims of the parties for
costs/expenses and fees for these motions are DENIED.
Signed at Lafayette, Louisiana this 25th day of August, 2014.

_________________________________
Patrick J. Hanna
United States Magistrate Judge

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