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Atchafalaya Basinkeeper v. Bostick

United States District Court, E.D. Louisiana

June 19, 2015



CARL J. BARBIER, District Judge.

Before the Court is a Motion for Summary Judgment (Rec. Doc. 39) filed by Plaintiffs the Atchafalaya Basinkeeper and Louisiana Crawfish Producers Association-West, Defendants the United States Army Corps of Engineers and Lieutenant General Thomas Bostick (collectively, "the Corps")'s Cross Motion for Summary Judgment (Rec. Doc. 43), Plaintiffs' reply and opposition (Rec. Doc. 44), and Defendants' reply. (Rec. Doc. 48) Having considered the motions and memoranda of counsel, the record, and the applicable law, the Court finds that Plaintiffs' Motion for Summary Judgment should be GRANTED IN PART and that Defendants' Cross Motion for Summary Judgment should be GRANTED IN PART.


This dispute arises from the Corps' August 2012 decision to authorize under a general permit a request to build a ring levee and access road in the Atchafalaya Basin in Iberville Parish, Louisiana. The Atchafalaya Basin contains multiple navigable bayous and adjacent wetlands that support the local Cajun culture. See (Rec. Doc. 39-1, p. 22; Rec. Doc. 39-12, p. 1; Rec. Doc. 43-1, pp. 2-3). The Louisiana Black Bear's critical habitat extends into the Atchafalaya Basin in the northern portion of Iberville Parish. (Rec. Doc. 43-2, p. 15)(citing AR 830).[1] Additionally, certain sections of the Atchafalaya Basin are incorporated into the Sherburne Wildlife Management Area. See (Rec. Doc. 39-12, pp. 1-2; Rec. Doc. 43-2, pp. 13-14).

In April 2009, Expert Oil & Gas (Expert Oil) sought authorization under General Permit 13 of the New Orleans District of the Corps (NOD-13) to build a ring levee and access road for its well in the Atchafalaya Basin. (Rec. Doc. 43-1, p. 1) The Corps in June 2009 held a Geologic Review meeting to review the proposed project and "determine whether there were any less damaging feasible alternatives for the proposed work." Id. at 2 (citing AR 656, 660). Representatives of the Corps, the Louisiana Geologic Survey (Louisiana Geologic), Expert Oil, and the Louisiana Department of Wildlife and Fisheries (Louisiana DWF) participated. Id . (citing AR 656, 660, 682). The Louisiana Geologic representative concluded that there were "no less damaging feasible alternatives." Id. at 3 (citing AR 660). Additionally, the owner of the land upon which Expert Oil would complete the proposed project indicated that it had no objection to the project or to a requirement that the land be restored upon abandonment of the well. Id . (citing AR 637). The Corps withdrew Expert Oil's application, however, because Expert Oil failed to meet the mitigation requirement that arose as a result of its plan to fill wetlands with the proposed project. Id . (citing AR 373, 375).

On August 20, 2012, Expert Oil reapplied for Corps authorization under NOD-13 to build the road and ring levee (hereinafter, the "2012 Project").[2] Id . (citing AR 350, 381-87); see also (AR 01-03)("Receipt is acknowledged of your application dated August 20, 2012...."). In the application, Expert Oil indicated that the 2012 Project comprised a 300' x 300' ring levee and an 800' access road, "a portion of [which would] be across a previously impacted area which [was] authorized [under NOD-13]." (AR 382-83) Expert Oil further indicated that it would construct the proposed ring levee with "native material, " but stated, "If the well is successful, the road will be permatized with limestone." (AR 383) Following the Corps' delineation of the wetlands that would be affected, [3] Expert Oil conducted the requisite mitigation for the "unavoidable wetlands impact of the 2012 Project." (Rec. Doc. 43-1, p. 4)(citing AR 20-28). On August 24, 2012, the Corps sent Expert Oil a letter in which it authorized the 2012 Project under NOD-13. Id . (citing AR 01-03). The letter listed five specific conditions and, in conclusion, generally referenced the conditions of approval contained in NOD-13. (AR 01-02) The Corps furnished a number of entities with copies of the letter, including the Louisiana DWF. (Rec. Doc. 43-1, p. 4)(citing AR 03).

On March 20, 2014, Plaintiffs exercised their right under Section 702 of the Administrative Procedure Act (APA) and filed suit against the Corps, alleging that the Corps' authorization of the 2012 Project under NOD-13 violated the terms of NOD-13; the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq.; and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. (Rec. Doc. 1) Plaintiffs seek injunctive relief in the form of an order (1) declaring the Corps' authorization of the 2012 Project illegal and invalid; (2) vacating the Corps' authorization and approval of construction of the 2012 Project under NOD-13; and (3) enjoining application of NOD-13 to the 2012 Project. (Rec. Doc. 1, p. 20) Plaintiffs further request an award of the costs of litigation, including attorneys' fees, under 28 U.S.C. § 2412 and all other appropriate relief. Id.

The parties agreed to resolve the action on cross motions for summary judgment according to a certain schedule. See (Rec. Doc. 29). Plaintiffs submitted their Motion for Summary Judgment (Rec. Doc. 39) on February 26, 2015. Defendants filed their Cross-Motion for Summary Judgment (Rec. Doc. 43) on March 30, 2015. Plaintiffs filed a reply in support of their motion together with an opposition to Defendants' motion on April 27, 2015. (Rec. Doc. 44) Defendants replied on May 18, 2015. (Rec. Doc. 48)


A. Plaintiffs' Motion

Plaintiffs generally seek summary judgment declaring invalid the Corps' authorization of the 2012 Project under NOD-13 and finding that Plaintiffs have standing to bring suit in this case. First, Plaintiffs argue that the Corps' application of NOD-13 to the 2012 Project was arbitrary and capricious in violating the Clean Water Act and NEPA. The Clean Water Act permits discharge of dredge or fill materials into jurisdictional waters, such as the waters and wetlands of the Atchafalaya Basin, only in accordance with a proper discharge permit. Such discharge permit may authorize either an individual project or provide general permission to perform certain similar acts in a certain area according its terms. When issuing an individual permit, the Corps must provide public notice and perform an environmental review of the project pursuant to NEPA. For a general permit, these procedures are required only upon its initial approval rather than at the start of each project subsequently authorized under its terms. Here, the general permit in question, NOD-13, carried with it terms and conditions requiring (1) approval of any project within one mile of a wildlife management area from the area's manager, and (2) that any roads constructed under the permit be degraded and the area leveled and restored after the projects they serve are abandoned. Plaintiffs assert that the 2012 Project was authorized within one mile of the Sherburne Wildlife Management Area without permission and features a road made permanent with limestone. Plaintiffs argue that, in this way, the 2012 Project violates the terms of NOD-13, the general permit under which it was authorized. Plaintiffs therefore contend that the Corps' authorization of the 2012 Project under NOD-13 violates the Clean Water Act.

Plaintiffs also argue that the application of NOD-13 to the 2012 Project violates both NEPA and the Clean Water Act because it circumvents the environmental review and public notice requirements of those Acts. The Corps performs NEPA review for general permits at the issuance of the general permit rather than during approval of the individual project. This review requires the Corps to consider the direct, indirect, and cumulative environmental impacts of the type of activity that is authorized by the general permit. Here, Plaintiffs argue that the Corps misapplied the general permit to a project that goes beyond the scope of the activities that the general permit authorizes. Thus, the Corps has not actually considered the direct, indirect, and cumulative environmental impacts of the type that the 2012 Project presents. Specifically, the Corps has not conducted an analysis of the impacts of the "permatized" road; placement of the permitted structure within one mile of a wildlife management area; and the cumulative effects of another road permitted under NOD-13 in 2000 (hereinafter, the "2000 Project"), such as the unpermitted filling of bayous, the failure to degrade a previous, nearby road following the abandonment of the well it served, and the unpermitted limestone reinforcement of that road, with those of the 2012 Project. Further, the Corps would have been forced to conduct such an analysis of the 2012 Project had they permitted it under an individual permit, which Plaintiffs argue was required. Plaintiffs also assert that, if properly considered under the Acts for an individual permit, the Corps would have been required to issue public notice regarding the 2012 Project.

Next, Plaintiffs contend that they meet the requirements for organizational standing and, therefore, have the authority to bring the instant action. An organization may sue on behalf of its members if its members have standing, the suit is germane to its purpose, and the claims asserted and relief requested do not require the participation of its individual members. Individuals have standing if they have suffered an injury in fact, the injury is fairly traceable to the defendant's act, and it is likely to be redressed by a favorable opinion from the court. Here, Plaintiffs argue that their individual members have standing to sue. Affidavits submitted with the motion reveal that Plaintiffs' members visit the affected area often and that the 2012 Project lessened the aesthetic and recreational value of the area. The authorization of the 2012 Project is traceable to the Corps' actions. A decision from this Court nullifying the permit or otherwise requiring a more thorough review of its environmental effects likely would redress the injury. Next, Plaintiffs argue that their purpose at least in part is to protect the Atchafalaya Basin, which purpose is directly advanced by the instant action. Finally, Plaintiffs maintain that neither their claims nor requests for relief require the participation of any individual members, because they do not seek damages. Thus, Plaintiffs assert that they satisfy the requirements of organizational standing and are entitled to summary judgment on the issue.

B. The Corps' Motion

The Corps moves for summary judgment dismissing with prejudice all of Plaintiffs' claims. First, the Corps argues that the doctrine of laches bars Plaintiffs' claims. To invoke laches, a defendant must show a delay in asserting a claim, a lack of excuse for such delay, and resulting prejudice. Here, Plaintiffs waited until sixteen months after observing construction on the 2012 Project to file their suit, have failed to offer any excuse for such delay, and upholding Plaintiffs' claims would prejudice the Corps by undermining the ...

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