United States District Court, W.D. Louisiana, Lafayette Division
LOUISIANA CRAWFISH PRODUCERS ASS'N WEST; ET AL.
MALLARD BASIN, INC.; ET AL.
R SUMMERHAYS NITED STATES DISTRICT JUDGE
present matters before the Court are cross-motions for
summary judgment filed by (1) Louisiana Crawfish Producers
Association West, Atchafalaya Basinkeeper, and the Louisiana
Environmental Action Network (collectively,
"plaintiffs") [doc. 280]; (2) defendants Mallard
Basin, Inc. ("Mallard Basin") and Whiskey Bay
Island, LLC ("WBI") [doc. 288], and (3) the United
States Army Corps of Engineers and Chief of Engineers
Lieutenant General Todd T. Semonite, in his official capacity
(collectively, "COE") [doc. 292]. Also before the
Court is plaintiffs' Motion to Strike [doc. 297]. These
motions were filed in two related cases that have been
consolidated: a Clean Water Act private citizen suit (the
"Lead Case"), and a separate challenge to the
administrative actions of the COE (the "Member
Case"). All motions have been fully briefed and are now
ripe for decision.
action began as a suit filed by Louisiana Crawfish Producers
Association-West ("LCPAW") and Atchafalaya
Basinkeeper, an association dedicated to the environmental
preservation of the Atchafalaya River Basin, against Mallard
Basin and WBI,  relating to a water control system
operated by Mallard Basin in and around Fisher Lake. Doc. 1.
An anonymous source reported the water control activities to
the COE in 2009. Doc. 38, att 3 (COE00001-02). The COE
conducted a site inspection in March 2010 and observed, inter
alia, a new pump designed to bring water from the Whiskey Bay
Pilot Channel to a borrow canal for fishing and an area of
wetlands known as Fisher Bottoms, which is used for duck
hunting. Id. It then issued a cease and desist order
relating to these activities. Id.
to the cease and desist order, Mallard Basin applied for an
after-the-fact permit for the installation of its pump. Doc.
38, att. 6 (COE00007-17). The COE approved the application
and issued Nationwide Permit No. 7 Permit Verification, No.
MVN-2010-1032-WLL ("NWP Verification"), on June 28,
2010. Doc. 38, att. 13 (COE00047-19). Mallard Basin also
applied for an after-the-fact permit for its construction of
a conveyance ditch and water control structure. Doc. 38, att.
14 (COE00050-COE00052). Following a public comment period,
the COE approved the application with Individual Permit No.
MVN-2010-1080-WLL ("Individual Permit"), on October
6, 2010. Doc. 38, atts. 30 & 31 (COE00143-77).
6, 2010, LCPAW and Atchafalaya Basinkeeper filed their
petition in what became known as the "lead case"
under the citizen suit provision of The Clean Water Act
("CWA"), 33 U.S.C. § 1365(b). Doc. 1. They
alleged that Mallard Basin and WBI violated the CWA by
filling wetlands and conducting other allegedly unauthorized
and harmful activities, namely the pumping of water from
Whiskey Bay Pilot Channel to Fisher Lake, and the dredging
and damming of Fisher Lake. Id. at ¶¶
22-51. Following issuance of the NWP Verification and
Individual Permit, the plaintiffs in the lead case and the
Louisiana Environmental Action Network ("LEAN")
also filed suit against the COE to challenge those permits in
what is now known as the "member case." See
Louisiana Crawfish Producers Association -West v. Corps of
Engineers, 'no, 6:11-cv-0461 (W.D, La.). The lead
case and member case were consolidated by order of the Court
on September 7, 2011. Doc. 35. The plaintiffs then filed a
first amended complaint against the COE, challenging the
permits under the Endangered Species Act ("ESA"),
the National Environmental Policy Act ("NEPA"), the
Administrative Procedure Act ("APA"), and the CWA,
with the ESA cause of action relating to impact of the
permitted activities on the Louisiana black bear. Doc. 48.
2011, Mallard Basin transferred the property at issue to
Atchafalaya Investments, LLC ("Atchafalaya
Investments"), which requested that the COE also
transfer the above permits to it. Doc. 102, art. 2, pp. 6-7
(COE00187-188). The COE decided to reevaluate the permits
before considering the transfer request, pursuant to its
authority under 33 C.F.R. § 325.7. Id. at 8-10
(COE00189-191). It then conducted site inspections and
invited public comment, which resulted in hundreds of pages
of comments and exhibits from plaintiffs. Id. at
13-29, 67 (COE00194-210, COE00248); see doc. 102,
att. 4, p. 26-doc. 102, att 12, p. 1 (COE00430-824). After
considering the public comments, the COE issued a Final
Permit Re-evaluation and Revised Decision on the NWP
Verification and Individual Permit on February 13, 2013. Doc.
102, att. 12, pp. 2-40 (COE00825-63). In that decision the
COE affirmed its issuance of the permits and approved their
transfer to Atchafalaya Investments. Id. Atchafalaya
Investments, WBI, and Mallard Basin (collectively,
"landowners") were then granted leave to intervene
in the member action. Doc. 99.
then filed a second amended complaint to address the transfer
and revaluation decision. Docs. 105, 117, 119. The Court also
granted leave for plaintiffs to pursue additional discovery
on their NEPA claims and to conduct a site inspection. Docs.
165, 175, 196.
2014, Atchafalaya Investments applied for a modification to
the individual permit. Doc. 269, att. 3, pp. 1-8, 9
(COE01070-77, COE01079). In that application it stated that
modifications were necessary to maintain the
already-permitted water control structure. Id. The
COE approved the application without notice or comment on
October 24, 2014. Id. at 84-94 (COE01153-63). The
plaintiffs were granted leave to file a third amended
complaint, to address the October 2014 modification to the
permits. Docs. 219-21. On May 20, 2016, plaintiffs filed a
final, fourth amended complaint, based on the de-listing of
the Louisiana black bear as an endangered species in April
2016. Docs. 227, 23 0, 231. However, plaintiffs only
eliminated certain requests for relief and maintained their
causes of action relating to the endangered species. Instead,
they asserted five causes of action relating generally to the
permits and the October 2014 modification. Doc. 231. In
Causes of Action 1 through 3, the plaintiffs alleged that the
COE's decisions violated the ESA and APA based on the
agency's failure to consult with the United States Fish
and Wildlife Service and otherwise appropriately consider the
impact to the Louisiana black bear. Id. at
¶¶ 214-23. In Causes of Action 4 and 5, the
plaintiffs maintained their challenges to the COE's
decisions under the NEPA and CWA. Id. at
¶¶ 224-34. They seek declaratory relief, vacatur
and remand of the challenged permits, as well as an award of
costs and fees. Id. at p. 37.
Court then entertained Motions to Dismiss [docs. 224 and 240]
by the COE, which argued that the de-listing of the Louisiana
black bear mooted plaintiffs' first, second, and third
causes of action. The Court agreed and dismissed same. Docs.
250, 265. The parties subsequently filed a joint submission
setting forth their positions on the appropriate scope of the
record for judicial review, cross-motions for summary
judgment, and additional arguments submitted by the
plaintiffs for consideration of extra-record evidence, Docs.
273 art. 1, 280, 288, 292. The plaintiffs have also moved to
strike a declaration attached by the landowners in their
opposition to the plaintiffs' Motion for Summary
Judgment. Doc. 297. The Court now considers the challenges to
the scope of the record and inclusion of extra-record
evidence, along with the motion to strike, before proceeding
to the merits of the case under the cross-motions for summary
for Summary Judgment in the Member Case
Record Challenges - The Applicable law
claims at issue in the Motions for Summary Judgment -
alleging violations of the CWA and NEPA through the COE's
permitting decisions - challenge a federal agency action and
are thus governed by the Administrative Procedure Act. APA
review of an agency action requires a court to review
"the whole record or those parts of it cited by a
party." 5 U.S.C. § 706. "[T]he focal point for
judicial review should be the administrative record already
in existence, not some new record made initially by the
reviewing court." Camp v. Pitts, 411 U.S. 138,
142 (1973). Under this principle, known as the "record
rule," "[a]gency action is to be upheld, if at all,
on the basis of the record before the agency at the time it
made its decision." Indep. Turtle Farmers of La.,
Inc. v. United States, 703 F.Supp.2d 604, 610 (W.D. La.
2010) (quoting Louisiana ex rel. Guste v. Verity,
853 F.2d 322, 327 n. 8 (5th Cir. 1988)). The record rule is
not absolute, however, and courts within this circuit have
recognized several exceptions to it. Id. at 611.
Most relevant to this case, a NEPA violation claim may invite
consideration of extra-record evidence, described in full
below. Coliseum Square Ass'n, Inc. v. Jackson,
465 F.3d 215, 247 (5th Cir. 2006), Extra-record evidence may
also be allowed to determine whether plaintiffs can satisfy a
jurisdictional prerequisite, such as standing. Chesapeake
Climate Action Netw. v. Exp.-Imp. Bank of the U.S., 78
F.Supp.3d 208, 217 (D.D.C. 2015).
Application of the Law to Plaintiffs' Challenges
Record completion and supplementation
plaintiffs make no challenge to the documents [docs. 38, 102,
115, and 269] already lodged by the COE as part of the
administrative record. Doc. 273, att. 1. Instead they argue
that (1) certain documents and exhibits have been erroneously
omitted from the administrative record and (2) certain
documents that are not part of the administrative record
should nonetheless be considered by the Court in determining
the merits of the case. Id.
first category, plaintiffs focus on documents relating to the
COE's response to limited discovery permitted on the
permit modification. Namely, they request incorporation into
the administrative record of (1) a March 2016 letter from the
Department of Justice with production of documents [doc. 273,
att. 2], (2) verification of Michael Herrmann, COE of
Engineers regulatory project manager for the Individual
Permit, on the same production of documents [doc. 273, att.
3], (3) Department of Justice chart listing the documents
produced [doc. 273, att. 4], (4) aerial photographs produced
by Michael Herrman at his August 2016 deposition [doc. 273,
att. 5], and (5) other documents and memoranda involving the
COE and relating to 2009 and 2010 complaints about the
Whiskey Bay pump and the March 2010 site visit conducted by
the COE [doc. 273, atts. 6-10].
objects to inclusion of these documents and exhibits, with
the exception of the final set, because they post-date the
last challenged permitting decision and therefore could not
have been considered by the COE in making that decision. Doc.
292, art. 1, p. 19. Plaintiffs do not oppose this point or
seek to admit the documents and exhibits under any
extra-record exception. Accordingly, the first four sets of
documents and exhibits described above will not be
considered. As for the fifth set, the plaintiffs have
produced testimony from project manager Michael Herrmann that
these documents were part of his file and would have been
considered by the COE in its 2010 permitting considerations.
Doc. 273, att. 26, pp. 36-37. The COE agrees that these
documents were before the agency and should be added to the
record. Doc. 292, att. 1, pp. 19-20. Thus the fifth set will
also be considered as part of the administrative record.
second group plaintiffs submit, in relevant part,
a report from plaintiffs' expert Dr. Paul Kemp [doc. 273,
att. 12], as well as declarations from wetland ecologist Dr.
Gary Shaffer [doc. 273, att. 13]; Atchafalaya Basinkeeper
executive director Dean Wilson [doc. 273, atts. 14-16]; and
crawfisher Jody Meche [doc. 273, att. 20]. Finally,
plaintiffs submit transcripts from their 2015 and 2016
depositions of COE project manager Michael
Herrmann. Doc. 273, atts. 25 & 26.
argue that the Kemp expert report [doc. 273, att. 12], the
declaration of Dr. Gary Shaffer [doc. 273, att. 13], Dean
Wilson [doc. 273, arts. 14-16], and the Michael Herrmann
depositions [doc. 273, atts. 25 & 26] should be
considered under the NEPA exception as providing evidence of
impacts, alternatives, and other relevant factors that the
COE allegedly failed to consider. Doc. 280, att. 1, pp.
argues that the NEPA exception does not apply, because
plaintiffs have not shown that the COE "negligently or
deliberately excluded these or any other document" or
"failed to explain the challenged actions so as to
frustrate judicial review." Doc. 292, att. 1, p. 30
(citing Medina Cnty. Environmental Action Ass'n v.
Surface Tramp. Bd., 602 F.3d 687, 706 (5th Cir. 2010))
(alterations omitted). In reply, the plaintiffs maintain that
the extra-record evidence sought to be introduced under the
NEPA exception is properly admitted under that exception and
plaintiffs observe, Medina was not a NEPA case and
relates only to the general admissibility of extra-record
evidence. It does not explicitly overrule prior decisions
concerning exceptions and should not be read "as a sea
change on this circuit's law on extra record
evidence." Gulf Coast Rod Reel & Gun Club v.
U.S. Army Corps of Engineers, 2015 WL 1883522, at *3
(S.D. Tex. Apr. 20, 2015); accord La Union del Pueblo
Entero v. FEMA, 141 F.Supp.3d 681, 694-95 (S.D. Tex.
2015), Accordingly, the COE's contention that plaintiffs
have not shown "negligent or deliberate exclusion"
or a failure to explain the challenged action, two exceptions
derived from Medina, 602 F.3d at 706, does
notrefiite the plaintiffs' arguments for inclusion of
these documents under the NEPA exception.
requires that an agency take a "hard look at
environmental consequences" before making a decision,
but only "prescribes the necessary process for
preventing uninformed-rather than unwise-agency action."
Robertson v. Methow Valley Citizen Council, 490 U.S.
332, 350-51 (1989). Accordingly, a NEPA claim attacks the
agency's procedures, or lack thereof, in considering the
environmental impact of a project. "The omission of
technical scientific information is often not obvious from
the record itself, and a court may therefore need a
plaintiffs aid in calling such omissions to attention."
Natl Audubon Soc'ty v. Hoffman, 132 F.3d 7, 15
(2d Cir. 1997). Thus, "deviation from the record rule to
review procedural integrity in a NEPA claim is a logical
conclusion." Save Our Wetlands, Inc. v. Conner,
1999 WL 508365, at *2 (E.D. La. Jul. 15, 1999) (citing
Sierra Club v. Hassell, 636 F.2d 1095, 1097-98 (5th
COE emphasizes, admission under the NEPA exception is not
automatic. Instead, the court should only consider
extra-record evidence where "the administrative record
is so inadequate as to prevent the reviewing court from
effectively determining whether the agency considered all
environmental consequences of its proposed actions."
Little Traverse Lake Prop. Owners Ass'n v. Nat'l
Park Svc, 883 F.3d 644, 658 (6th Cir. 2018) (quoting
Hoffman, supra, 132 F.3d at 15). Where those
documents are cumulative of the administrative record, their
admission should be denied. Id. at 658-59.
argues that some of the proposed extra-record evidence should
not be admitted because it is post-decisional.
"[Exceptions to the normal rule regarding consideration
of extra-record materials only apply to information available
at the time, not post-decisional information."
Tri-Valley CAREs v. U.S. Dep't of Energy, 671
F.3d 1113, 1130-31 (9th Cir. 2012) (cleaned up).
Additionally, post-decision information "may not be
advanced as a new rationalization for either sustaining or
attacking an agency's decision." Sw. Ctr. for
Biological Diversity, 100 F.3d 1443, 1450 (9th Cir.
1996); accord Latin Americans for Social and Econ. Dev.
v. Admin 'r of Fed. Hwy. Admin., 858 F.Supp.2d 839,
856 n. 11 (E.D. Mich. 2012) (citing Wisconsin Elec. Power
Co. v. Costle, 715 F.2d 323, 327 (7th Cir. 1983)) 8c
Coalition of Concerned Citizens to MakeARTSmart v. Fed.
Transit Admin, of U.S. Dep't of Transp., 2016 WL
8919680, at *3 (D.N.M. Jul. 15, 2016); cf. Oceana, Inc.
v. Locke, 674 F.Supp.2d 39, 47 (D.D.C. 2009) (striking
post-decisional testimony but noting that, in a previous
case, a post-decisional letter by a scientist challenging the
manner in which an agency relied on her own research was
properly admitted as extra-record evidence). "Although
[the duty to consider new information] may be true for an
agency, the Court's role . .. is to review the
[agency's] decision to grant [an] application based upon
the materials before the [agency] at the time of its decision
and upon acceptable extra-record materials, if any."
MakeARTSmart, 2016 WL 8919680 at *3.
last challenged decision in this matter took place in 2014.
Kemp was not retained by plaintiffs until "late
2015," and his report is dated July 2017. Doc. 273, att.
12, p. 1 (COE01228). The report is based on (1) one site
visit, conducted in 2016, (2) water levels recorded from 1997
to 2016, (3) undated aerial photographs, topographic survey
maps, and images and lidar data from Google Earth Pro, and
(4) a review of the geological, hydrological, and historical
literature on past and present physical, biological, and
human influences on Fisher Lake. Id. at 9
(COE01236). The author relies heavily on the post-decision
site visit and the data, some of which is post-decision, for
his opinions about the project's impact on the hydrology,
ecology, and navigability of Fisher Lake. The extra-record
Wilson and Shaffer declarations (regarding alleged impacts of
the facilities on bald cypress trees) are based on
observations and photographs taken in 2015 and 2016.
See doc. 273, atts. 13-16. The plaintiffs chiefly
rely on these exhibits to show that the COE has erred because
post-decisional data and observations disprove its findings
about the impacts of the permitted project and
modification. These cannot be used to negate the
sufficiency of the COE's consideration of conditions that
existed at the time of the challenged decisions, which
occurred between 2010 and 2014, and will not be considered in
relation to the merits of the challenged decisions. As for
the Michael Herrmann depositions, the COE offers no specific
objection and a review of those exhibits shows that they are
potentially relevant to the adequacy of the COE's
challenged decision-making processes. Accordingly, these
exhibits will be admitted and considered under the NEPA
exception but will not be considered for the CWA claim.
Motion to Strike
the plaintiffs object to consideration of an exhibit attached
to the landowners' opposition [doc. 287] to the
plaintiffs' Motion for Summary Judgment. This exhibit is
a declaration from Kim Sebastien, an independent contractor
employed by Atchafalaya Investments. See doc. 287,
art. 1. The plaintiffs argue that it should be stricken
because it was filed over five months past the deadline
imposed by the magistrate judge for the parties to identify
extra-record evidence. Doc. 297, att. 1. In the alternative,
they argue, the Court should consider a new declaration from
Dean Wilson, Atchafalaya Basinkeeper executive director, in
response to the Sebastien declaration. Id. The COE
takes no position on the admission of the Sebastien
declaration but opposes the plaintiffs' request to admit
the new Wilson declaration. Doc. 307. The landowners have
filed no opposition to the Motion to Strike and their time
for doing so has passed.
landowners note that Sebastien's declaration is
introduced to address extra-record statements in the
plaintiffs' Motion for Summary Judgment. Doc. 287, p. 2.
The declaration responds to a statement in the Kemp expert
report about the potential impact of standpipe drop weirs at
Fisher Lake on passage by fish and other aquatic
animals. Doc. 287, att. 1, p. 2. However, the
only extra-record evidence deemed admissible on the merits of
a claim are the depositions of Michael Herrmann, supra. The
Sebastien declaration is therefore irrelevant in addition to
being untimely, and the Motion to Strike is hereby granted.
Motions for Summary Judgment
should grant a motion for summary judgment when the movant
shows "that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ, P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The Court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (quotations omitted). This requires more than mere
allegations or denials of the adverse party's pleadings.
Instead, the nonmovant must submit "significant
probative evidence" in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th
Cir. 1990). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249 (citations
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
member case - which is the subject of the COE's and
plaintiffs' Motions for Summary Judgment - arises under
the APA as a challenge to the COE's actions in the
above-described permitting decisions, based on alleged
violations of the CWA and NEPA. 11 Mallard Basin and WBI also
move for summary judgment, arguing that the lead case should
be dismissed as moot. Doc. 288, att. 1.