Louisiana Crawfish Producers Ass'n-West v. Rowan

• Citation: 463 F.3d 352
• Decision Date: 29 August 2006
• Docket Number: No. 05-30956.,05-30956.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST, Plaintiff-Appellant, v. Peter J. ROWAN, Colonel; United States Army Corps of Engineers, New Orleans District; Francis J. Harvey, Secretary of the U.S. Department of the Army in his official capacity as Secretary of the Army, Defendants-Appellees.

463 F.3d 352

LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST, Plaintiff-Appellant, v. Peter J. ROWAN, Colonel; United States Army Corps of Engineers, New Orleans District; Francis J. Harvey, Secretary of the U.S. Department of the Army in his official capacity as Secretary of the Army, Defendants-Appellees.

No. 05-30956.

United States Court of Appeals, Fifth Circuit.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Leigh Ann Haynie (argued), Carencro, LA, for Plaintiff-Appellant.

Janice L. Hebert, Asst. U.S. Atty. (argued), Lafayette, LA, for Defendants-Appellees.

Mary V. Kinsey, U.S. Army Corps of Engineers, Office of Dist. Council, New Orleans, LA, for U.S. Army Corps of Engineers.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH, GARZA and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Louisiana Crawfish Producers Association ("LCPA") appeals the district court's grant of summary judgment to the United States Army Corps of Engineers ("the Corps") on claims arising from LCPA's challenge under the National Environmental Policy Act ("NEPA") to the Corps's Environmental Assessment ("EA") of a section of the Atchafalaya Basin.¹

I

The Atchafalaya Basin is a flood control area in Louisiana, draining approximately 41 percent of the continental United States. In 1982, the Corps issued a Final Environmental Impact Statement ("FEIS") for the entire Basin. The overall goal of this FEIS was to ensure passage of water through the system, while restoring and maintaining the historical overflow conditions of the Basin. The FEIS divided the Basin into thirteen separate Management Units. Buffalo Cove, the subject of this litigation and one of the Management Units, was designated as a Pilot Management Unit, wherein experimentation could take place to develop techniques to maintain the water flow and restore the ecosystem. A series of pipelines run across Buffalo Cove, creating spoilbanks that capture and convey water and sediment and reduce the north-south flow. These spoilbanks also restrict public access.

From 1999 to 2003 the Corps conducted an EA on the Buffalo Cove Management Unit. The goal of the project, as described in the EA, was "to improve interior circulation within the swamp; remove barriers to facilitate north to south flow; provide input of oxygenated, low temperature river water; and prevent or manage sediment input into the interior swamps." These objectives would be accomplished through "a series of closures and sediment traps (to prevent sediment influx), constructed inputs for river water, and gaps placed in existing embankments." The Corps made the project available for public review and comment on July 25, 2003. Out of one hundred thirty-four comments, thirty-two opposed the EA. On March 15, 2004, a Finding of No Significant Impact ("FONSI") was entered.

The LCPA is a not-for-profit organization of commercial crawfishermen. During the notice and comment period, the LCPA suggested as an alternative plan for Buffalo Cove that the Corps both open up the historical bayous and enforce the permit requirements for pipelines. This alternative was not addressed in the EA. The LCPA then brought suit in the district court, seeking an injunction of the project, arguing that the Corps had disregarded its suggested alternative and that the FONSI was in error. The Corps moved for summary judgment. The district court issued its ruling from the bench, granting summary judgment to the Corps and denying the LCPA's motion for summary judgment. The LCPA now appeals.

We review a grant of summary judgment de novo, applying the same standard as the district court. City of Shoreacres v. Waterworth, 420 F.3d 440, 445 (5th Cir.2005). "NEPA-related decisions are accorded a considerable degree of deference... [and] courts are to uphold the agency's decision unless the decision is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Spiller v. White, 352 F.3d 235, 240 (5th Cir.2003); 5 U.S.C. § 706(2)(A). "Under this highly deferential standard of review, a reviewing court has the least latitude in finding grounds for reversal." Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 678 (5th Cir.1992) (citation omitted).

Our task is thus to determine whether the agency "adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary." Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir.1981). The agency and not the court, has the discretion to choose from among sources of evidence, and an agency may rely on its own experts, so long as they are qualified and express a reasonable opinion. Sabine River Auth., 951 F.2d at 678.

II

NEPA requires "all agencies of the Federal Government . . . [to] include [an EIS] in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2). An EIS is not necessary when the federal action is not major or does not have a "significant impact on the environment." Sabine River Auth., 951 F.2d at 677. To determine whether an EIS is necessary, an agency will perform an EA. Sierra Club v. Espy, 38 F.3d 792, 802 (5th Cir.1994); 40 C.F.R. § 1508.9(a)(1) (defining an EA as a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact"). An EA is "a rough cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." Sabine River Auth., 951 F.2d at 677 (citation omitted). Thus, an EA will result in a finding that an EIS is necessary or in a FONSI, indicating that no further study of the environmental impact of the project is necessary. Id.

The Corps's EA for Buffalo Cove discussed three alternatives: a no-action plan, the original plan articulated in the 1982 EIS, and the plan ultimately adopted. During the record and comment period, the LCPA proposed an alternative to the proposed program, which focused on the reopening of historic bayous and the enforcement of the permits governing the laying down of pipelines through the areas. This alternative was never discussed in the final EA. On appeal, the LCPA argues that a discussion and rejection of any reasonable alternative must be included in the EA and that because its proposed plan was reasonable, it should have been included in the Buffalo Cove EA. The Corps counters that this proposal was unreasonable and inconsistent with the goals of the Buffalo Cove project. Specifically, the Corps states that the proposal by the LCPA is both impracticable and would result in increased sedimentation, as opposed to the reduction in sedimentation intended by the project.

The LCPA has provided no caselaw that supports its contention that the Corps was required to consider and reject its proposed alternative in the EA.² Although the relevant regulation does mandate the discussion of alternatives, the regulation does not require that all proposed alternatives, no matter their merit, be discussed in the EA. See 40 C.F.R. § 1508.9(b) (stating that an EA "[s]hall include brief discussions of the need for the proposal, of alternatives ..., of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted"). We have explained that "the range of alternatives that the [agency] must consider decreases as the environmental impact of the proposed action becomes less and less substantial." Sierra Club, 38 F.3d at 803; see also Highway J Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir.2003) ("When ... an agency makes an informed decision that the environmental impact will be small ... a less extensive search [for alternatives] is required."). Furthermore, in the context of an EIS, we have made clear that "[s]ome reasonable limit to discussion of alternatives must be set." Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 318 (5th Cir.1980).

In Mississippi River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir.2000), the court affirmed a grant of summary judgment to the Corps, holding that the Corps had adequately considered a range of alternatives and had not been arbitrary and capricious in rejecting the plaintiff's proposal at a preliminary stage. Id. at 177. We held that the rejection of alternatives, "even those that could be considered to be viable and reasonable alternatives, after an appropriate evaluation" was not arbitrary and capricious. Id. Although this case arose in the context of an EIS, where the burden on the agency to consider reasonable alternatives is much heavier, the analysis is instructive. The court noted that the Corps had articulated reasons why the proposal was rejected in the early stages of analysis. Id. (reciting the reasons given by the Corps for rejecting the proposed alternative). Similarly, here, the Corps has briefed why the proposal was not accepted. The Corps explains that reopening the waterways suggested by the LCPA would result in "counterproductive sedimentation." The Corps notes further that the high water levels in the entire Atchafalaya River and Basin have changed, and therefore simply reopening historical bayous, without reverting back to the same historic high water levels, will result in excessive sedimentation. The administrative record also contains internal comments made on the letter proposal sent by the LCPA. Those comments indicate that the choice of where to introduce additional water flow into the Cove was carefully considered and that the Corps was concerned about the ability of the natural bayous to "scour [themselves]."

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