Harrison County, Mississippi et al v. Mississippi River Commission et al

Filing 60

ORDER taking under advisement 25 Motion for Leave to File; granting in part and denying in part 50 Motion for Discovery; taking under advisement 16 Motion to Dismiss for Lack of Jurisdiction Signed by District Judge Louis Guirola, Jr on 11/20/2020 (Guirola, Louis)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
HARRISON COUNTY, MISSISSIPPI;
HANCOCK COUNTY, MISSISSIPPI;
CITY OF BILOXI, MISSISSIPPI; CITY
OF D’IBERVILLE, MISSISSIPPI;
CITY OF WAVELAND, MISSISSIPPI;
MISSISSIPPI HOTEL AND LODGING
ASSOCIATION; MISSISSIPPI
COMMERCIAL FISHERIES UNITED,
INC.; PASS CHRISTIAN,
MISSISSIPPI; CITY OF
DIAMONDHEAD, MISSISSIPPI
v.

PLAINTIFFS
CAUSE NO. 1:19cv986-LG-RPM

MISSISSIPPI RIVER COMMISSION
and U.S. ARMY CORPS OF
ENGINEERS

DEFENDANTS

ORDER GRANTING PLAINTIFFS’ SECOND MOTION FOR
JURISDICTIONAL DISCOVERY AND TAKING UNDER
ADVISEMENT ALL OTHER PENDING MOTIONS
BEFORE THE COURT is the [16] Motion to Dismiss for Lack of
Jurisdiction and Failure to State a Claim filed by the defendants, Mississippi River
Commission (“MRC”) and U.S. Army Corps of Engineers (“the Corps”), as well as
the [25] Motion for Leave to File Second Amended Complaint and the [50] Second
Motion for Jurisdictional Discovery filed by the plaintiffs, Harrison County,
Mississippi, Hancock County, Mississippi, City of Biloxi, Mississippi, City of
D’Iberville, Mississippi, City of Waveland, Mississippi, Mississippi Hotel and
Lodging Association, Mississippi Commercial Fisheries United, Inc., Pass Christian,
Mississippi, and City of Diamondhead, Mississippi. The parties have fully briefed

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the Motions. After reviewing the submissions of the parties, the record in this
matter, and the applicable law, the Court finds that the plaintiffs’ request for
jurisdictional discovery should be granted. The Court will take all other pending
Motions under advisement and will permit the parties to file supplemental briefs
regarding the defendants’ Motion to Dismiss after the completion of jurisdictional
discovery.
BACKGROUND
The Bonnet Carré Spillway was constructed north of New Orleans,
Louisiana, as part of the Mississippi River and Tributaries Project. The Spillway
was designed to divert water from the Mississippi River into Lake Pontchartrain in
an effort to prevent flooding in the Mississippi Delta. After entering Lake
Pontchartrain, the water diverted by the Spillway flows into the Mississippi Sound.
The plaintiffs, which are local governments and businesses operating near
the Sound, have sued the Corps, which is responsible for the physical operation of
the Mississippi River and Tributaries Project and the Spillway. The plaintiffs have
also sued the MRC, which, according to the plaintiffs, is responsible for decisions
regarding the operation of the Spillway. The plaintiffs claim that the polluted river
water released while the Spillway was open during the spring and summer of 2019
caused damage to the oyster, fishing, and tourism industries on the Mississippi Gulf
Coast and resulted in a decrease in tax revenues for local governments.
The plaintiffs have filed their claims pursuant to the Administrative
Procedure Act (“APA”). They assert that the Corps and the MRC failed to perform

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the full environmental impact analysis required by the National Environmental
Policy Act (“NEPA”) before deciding to open the Spillway on a more regular basis.
In addition, the plaintiffs allege that these defendants failed to supplement the
Environmental Impact Statement for the Mississippi River and Tributaries Project
“to reflect the changed circumstances and additional impacts resulting from the
greater and more damaging Mississippi River flooding and resulting operation of
the Bonnet Carré Spillway.” (Am. Compl., at 24 (¶73), ECF No. 9). The plaintiffs
also claim that the defendants violated the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. § 1855(b)(2), by failing to consult
with the Secretary of Commerce before opening the Spillway. They seek a
declaratory judgment, preliminary injunction, and permanent injunction that the
defendants’ alleged violations of NEPA and the Magnuson-Stevens Act constitute a
failure to act under the APA, 5 U.S.C. § 706(1).
The defendants filed a Motion to Dismiss, requesting dismissal of the
plaintiffs’ NEPA claim for lack of jurisdiction and for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). The defendants also seek dismissal of all of the
plaintiffs’ claims against MRC for failure to state a claim. The plaintiffs filed a
motion seeking permission to file a second amended complaint as well as a motion
for permission to conduct jurisdictional discovery. The Court granted the request
for jurisdictional discovery to the extent that the defendants were ordered to
designate and produce the administrative record. (Order, ECF No. 35). The Court
also granted the plaintiffs permission to provide a supplemental brief regarding the

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Motion to Dismiss or, if necessary, file a second motion for jurisdictional discovery
after review of the administrative record. The motion was denied in all other
respects. The defendants produced the administrative record, and the plaintiffs
filed their Second Motion for Jurisdictional Discovery. The defendants later
supplemented the administrative record, but the plaintiffs continue to assert that
discovery is necessary for a determination of the defendants’ Motion to Dismiss.
DISCUSSION
“Federal courts have jurisdiction over lawsuits against the United States and
its agencies only to the extent that sovereign immunity has been waived.” Charles
v. McHugh, 613 F. App’x 330, 332 (5th Cir. 2015) (citing FDIC v. Meyer, 510 U.S.
471, 475 (1994). A district court may find a lack of subject matter jurisdiction on
either: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Wilson v. Houston Cmty. Coll. Sys., 955
F.3d 490, 494-95 (5th Cir. 2020). The party responding to the 12(b)(1) motion bears
the burden of proof that subject matter jurisdiction exists. Id. “Courts must strictly
construe all waivers of the federal government’s sovereign immunity and must
resolve all ambiguities in favor of the sovereign.” Linkous v. United States, 142
F.3d 271, 275 (5th Cir. 1998).
Congress enacted NEPA for the purpose of “promot[ing] efforts which will
prevent or eliminate damage to the environment and biosphere[.]” 42 U.S.C. § 4321.
To accomplish this, NEPA requires federal agencies to include, inter alia,

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in every recommendation or report on . . . major [f]ederal actions
significantly affecting the quality of the human environment, a
detailed statement by the responsible official on—(i) the environmental
impact of the proposed action, (ii) any adverse environmental effects
which cannot be avoided should the proposal be implemented, [and]
(iii) alternatives to the proposed action[.]
42 U.S.C. § 4332(C). This statement is referred to as an Environmental Impact
Statement (“EIS”). The plaintiffs claim that the Corps violated NEPA by failing to
prepare an EIS concerning the impact of opening the Bonnet Carré Spillway. The
Corps argues that there has been no waiver of sovereign immunity as to the
plaintiffs’ NEPA claim because the plaintiffs have not identified a legally required
duty to supplement or amend the EIS concerning the Spillway.
The only potentially applicable waiver of sovereign immunity in this case is
the APA, which “waives sovereign immunity for actions against federal government
agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to
judicial review.” See Louisiana v. United States, 948 F.3d 317, 321 (5th Cir. 2020);
see also 5 U.S.C. § 702. Sovereign immunity is not waived by § 702 of the APA
unless there has been “agency action,” Id. at 321, which is defined to “include[ ] the
whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act.” 5 U.S.C. § 551(13) (emphasis added).
The plaintiffs’ claims in the present case are based on the Corps’ alleged
failure to act. The APA provides relief for failure to act in section 706(1), which
requires a reviewing court to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). “Thus, a claim under § 706(1) can

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proceed only where a plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take.” Norton v. S. Utah Wilderness All. (SUWA), 542
U.S. 55, 64 (2004).
The defendants first argue that this Court’s consideration of the plaintiffs’
claim should be limited to the administrative record pursuant to 5 U.S.C. § 706,
which provides that the Court is required to review “the whole record or those parts
of it cited by a party.” The Fifth Circuit has held that supplementation of the
administrative record is not allowed unless the moving party demonstrates ‘unusual
circumstances justifying a departure’ from the general presumption that review is
limited to the record compiled by the agency.” Medina Cty. Envtl. Action Ass’n v.
Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010).
Supplementation may be permitted when:
(1) the agency deliberately or negligently excluded documents that may
have been adverse to its decision, ...
(2) the district court needed to supplement the record with
“background information” in order to determine whether the agency
considered all of the relevant factors, or
(3) the agency failed to explain administrative action so as to frustrate
judicial review.
Id. In addition, some courts have held that plaintiffs asserting failure to act claims
pursuant to Section 706(1) may rely on materials outside the scope of the
administrative record. See. e.g., Friends of the Clearwater v. Dombeck, 222 F.3d
552, 560 (9th Cir. 2000) (holding that federal review of Section 706(1) claims is not
confined to the administrative record in existence “at any single point in time,
because there is no final agency action to demarcate the limits of the record”). The
District Court for the District of Columbia has explained:
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[I]f an agency fails to act, there is no administrative record for a
federal court to review. Therefore, there may well be reason for
discovery, since agency delay is not necessarily a discrete event
resulting from a decision based upon some sort of administrative
record, but may be simply . . . after-the-event justifications which may
need to be explored by plaintiffs.
W. Watersheds Project v. Pool, 942 F. Supp. 2d 93, 101 (D.D.C. 2013) (internal
citations and quotation marks omitted); see also Cobell v. Babbitt, 91 F. Supp. 2d 1,
38 (D.D.C. 1999) (“Extrinsic evidence is appropriate for consideration when the
processes utilized and factors considered by the decisionmaker require further
explanation for effective review.”)
The defendants also argue that discovery is not necessary because the issue
of whether the plaintiffs “have identified a ‘legally required’ duty to act” is a
question of law that does not require factual analysis as to the merits of the
plaintiffs’ claims. (Def.’s Reply Mot. to Dismiss, at 4, ECF No. 4; see also Def.’s
Mem. 2d Mot. Juris. Discovery, at 4, ECF No. 55). However, the plaintiffs claim
that the defendants had a duty to supplement the EIS on the Mississippi River and
Tributaries Project pursuant to NEPA and two regulations, 33 C.F.R. § 230.6 and
40 C.F.R. § 1502.9(c). NEPA requires “all agencies of the Federal Government” to
prepare an EIS prior to taking “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2)(C). 33 C.F.R. § 230.6
provides that the following agency actions normally require an EIS: “(a) Feasibility
reports for authorization and construction of major projects; (b) Proposed changes in
projects which increase size substantially or add additional purposes; and (c)
Proposed major changes in the operation and/or maintenance of completed
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projects.”1 The other regulation cited by the plaintiffs, 640 C.F.R. § 1502.9(c),
requires agencies to supplement an EIS if: “(i) The agency makes substantial
changes in the proposed action that are relevant to environmental concerns; or (ii)
There are significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.” Under this regulation,
“supplementation is necessary only if ‘there remains major Federal action to occur,’
as that term is used in § 4332(2)(C).” SUWA, 542 U.S. at 73 (citing Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 374 (2004)). Thus, the determination of whether a
supplemental EIS is required “will, of necessity, depend heavily upon the unique
factual circumstances of each case.” Westlands Water Dist. v. U.S. Dep’t of Interior,
Bureau of Reclamation, 850 F. Supp. 1388, 1415 (E.D. Cal. 1994).
To some extent, the finding is based on whether the proposed agency
action and its environmental effects were within the contemplation of
the original project when adopted or approved. The inquiry requires a
determination of whether plaintiffs have complained of actions which
may cause significant degradation of the human environment.
Id. A supplemental EIS is not required if federal action would not change the
status quo; therefore, routine operation of a facility does not require
supplementation. See Upper Snake River Chapter of Trout Unlimited v. Hodel, 921

This regulation further provides that, in lieu of an EIS, district commanders may
consider the use of a less intensive environmental assessment (EA) on these types of
actions if early studies and coordination show that a particular action is not likely
to have a significant impact on the quality of the human environment.” 33 C.F.R. §
230.6. “An EA is a brief document which provides sufficient information to the
district commander on potential environmental effects of the proposed action and, if
appropriate, its alternatives, for determining whether to prepare an EIS or a
FONSI (40 CFR 1508.9).” 33 C.F.R. § 230.10.
1

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F.2d 232, 235 (9th Cir. 1990). Nor is supplementation required “every time new
information comes to light after the EIS is finalized. To require otherwise would
render agency decision-making intractable, always awaiting updated information
only to find the new information outdated by the time a decision is made.” Marsh,
490 U.S. at 373.
In their Amended Complaint, the plaintiffs allege that the defendants are
opening the Spillway more frequently and for longer periods of time, causing
greater damage to the environment, seafood industry, and tourism industry in
coastal Mississippi. They further claim that the following actions by the Corps
constituted “major federal actions” requiring supplementation of the EIS under
NEPA:
A. The continuing construction and operation of the Mississippi River
and Tributaries [“MRT”] Project.
B. The issuance of the Water Control Plans and other documents
governing the operation of the Bonnet Carré Spillway, the Morganza
Spillway and Floodway, the Old River Control Complex, and the Birds
Point-New Madrid Floodway.
C. The specific decisions by the Corps of Engineers and the Mississippi
River Commission to open the Bonnet Carré Spillway for greatly
extended periods of time.
(Pls.’ Mem., at 11-12, ECF No. 28.) In the present Motion, the plaintiffs ask for
permission to conduct a 30(b)(6) deposition of each defendant. They also ask the
Court to enter an order requiring responses to their requests for production of
documents, which were attached to the plaintiffs’ first Motion for Jurisdictional
Discovery as Exhibit 1. (See Requests for Production, ECF No. 21-1).

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The Court has reviewed the administrative record produced by the
defendants, which exceeds 8000 pages. While the plaintiffs’ First Amended
Complaint concerns operation of the Bonnet Carré Spillway in 2019, the majority of
the record contains studies and administrative documents that precede 1999. The
only post-2011 documents that appear to relate to recent decisions to open the
Bonnet Carré Spillway are various memoranda totaling seventeen pages that were
produced as a supplement to the administrative record on September 28, 2020. As a
result, the Court finds that the defendants have not provided sufficient information
to permit judicial review. In the alternative, this may be a situation in which the
defendants’ failure to act prevented creation of an administrative record pertinent
to the claims pending before the Court.
For these reasons, the Court finds that the plaintiffs should be permitted to
conduct jurisdictional discovery concerning the defendants’ compliance or lack of
compliance with NEPA. Requests pertaining to other statutes, including the
Magnuson-Stevens Fishery Conservation and Management Act and the Endangered
Species Act, will not be permitted because the defendants’ Motion to Dismiss only
pertains to the plaintiffs’ NEPA claims. The plaintiffs’ discovery requests must be
narrowly tailored to the precise issue of whether the defendants’ operation of the
Bonnet Carré Spillway in 2019 was within the contemplation of the original
Mississippi River and Tributaries Project when adopted or approved. The plaintiffs’
request for jurisdictional discovery is denied in all other respects. All other pending
Motions are taken under advisement.

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IT IS, THEREFORE, ORDERED AND ADJUDGED that the [50] Second
Motion for Jurisdictional Discovery filed by the plaintiffs, Harrison County,
Mississippi, Hancock County, Mississippi, City of Biloxi, Mississippi, City of
D’Iberville, Mississippi, City of Waveland, Mississippi, Mississippi Hotel and
Lodging Association, Mississippi Commercial Fisheries United, Inc., Pass Christian,
Mississippi, City of Diamondhead, Mississippi, is GRANTED IN PART AND
DENIED IN PART. The plaintiffs are granted 60 DAYS within which to conduct
jurisdictional discovery to the extent permitted by this Memorandum Opinion and
Order.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [16] Motion to
Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by the
defendants, Mississippi River Commission and U.S. Army Corps of Engineers, and
the [25] Motion for Leave to File Second Amended Complaint filed by the plaintiffs
are TAKEN UNDER ADVISEMENT.
IT IS, FURTHER, ORDERED AND ADJUDGED that the plaintiffs are
permitted to file a supplemental memorandum in opposition to the defendants’ [16]
Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim on or before
February 8, 2021. The defendants will be permitted to file a reply in support of
their Motion on or before February 19, 2021.
SO ORDERED AND ADJUDGED this the 20th day of November, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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