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Louisiana Crawfish Producers Ass'n West v. Mallard Basin Inc.

United States District Court, W.D. Louisiana, Lafayette Division

January 9, 2019





         The 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.



         This 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, [1] 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.

         Pursuant 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).

         On July 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.

         In July 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.[2] 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.

         Plaintiffs 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.

         In June 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.

         The 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 judgment, II.

         Motions for Summary Judgment in the Member Case

         A. Record Challenges - The Applicable law

         The 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.[3] 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).

         B. Application of the Law to Plaintiffs' Challenges

         1. Record completion and supplementation

         The 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.

         In the 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].[4]

         The COE 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.

         In the second group plaintiffs submit, in relevant part, [5] 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.[6] Doc. 273, atts. 25 & 26.

         Plaintiffs 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.[7] Doc. 280, att. 1, pp. 27-28.

         The COE 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 Medina.

         As 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.[8]

         NEPA 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 Cir. 1981)).

         As the 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.

         The COE 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.

         The 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.[9] 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.

         2. Motion to Strike

         Finally, 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.

         The 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.[10] 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.

         C. Motions for Summary Judgment

         1. Standards

         A court 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.

         If the 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 omitted).

         A court 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).

         2. Application

         The 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.

         a. ...

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