87 F.3d 1242 (11th Cir. 1996), 96-8094, Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers
|Citation:||87 F.3d 1242|
|Party Name:||PRESERVE ENDANGERED AREAS OF COBB'S HISTORY, INC., Roger Peaster, Heidi Peaster, Johnny Plunkett, Bury Plunkett, John Mowell and Marie Mowell, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, Togo D. West, Secretary of the Army, Wayne M. Boy, Colonel, District Engineer, Savannah District Corps of Engineers, Necholus Ogden, Chief, Re|
|Case Date:||July 11, 1996|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Robert B. Remar, Susan Marie Garrett, Kirwan, Parks, Chesin & Remar, Atlanta, GA, for Appellants.
Fred D. Bentley, Jr., Bentley, Bentley & Bentley, Marietta, GA, for Cobb County Defendants.
L. Elinor Colbourn, U.S. Dept. of Justice, Appellate Section, Washington, DC, for U.S. Army Corps, et al.
Appeal from the United States District Court for the Northern District of Georgia.
Before CARNES, Circuit Judge, and FAY and GIBSON [*], Senior Circuit Judges.
FAY, Senior Circuit Judge:
The plaintiffs in this action challenged a proposed highway construction project in Cobb County, Georgia. They alleged violations of the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, and the National Historic Preservation Act. In extremely well-reasoned orders, the District Court dismissed certain claims and granted the defendants summary judgment on all the remaining claims. We affirm.
Preserve Endangered Areas of Cobb's History, Inc. (P.E.A.C.H.) and various individuals brought suit to prevent the construction of a 4.75 mile highway in Cobb County Georgia. The highway would run through a Historic District in Cobb County and would impact approximately 3.77 acres of wetlands. The County developed a mitigation plan in order to minimize the possible harmful effects of the highway. The plan included the preservation of 19.7 acres of existing wetlands and the restoration of at least 7.8 acres of previously cleared and drained floodplain or wetland area. Cobb County also executed a Memorandum of Agreement on Historic Preservation in order to mitigate the effects on the historic character of the region. The Agreement requires the county to take specific measures. These measures involve limiting access to the road from the historic district, bridging certain roads to minimize the adverse impact on historic properties, aesthetic signage restrictions, site stabilization, archeological data recovery, the stabilization of the Woolen Mills historic structure, and a 70 acre historic heritage park that should minimize future development in and near the historic district.
In April of 1995 the Army Corps of Engineers issued a permit under Section 404 of the Clean Water Act (33 U.S.C. 1344(a)) to Cobb County, authorizing it to impact the 3.77 acres of wetlands. The permit was conditioned on compliance with the Memorandum of Agreement on Historic Preservation and the wetland mitigation plan.
Also in April 1995, the Army Corps District Engineer issued an environmental assessment for the project. The assessment included a finding of no significant impact and concluded that an Environmental Impact Statement would not be required.
The plaintiffs filed suit against Cobb County, the Army Corps of Engineers, and the Environmental Protection Agency. The plaintiffs alleged that the defendants violated the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), and the National Historic Preservation Act (16 U.S.C. § 470).
The District Court entered a protective order prohibiting the plaintiffs from engaging in any discovery and limiting the court's review to the administrative record. The District Court granted the defendants' motions to dismiss the claims brought under the citizen suit provisions of the Clean Water Act, ruling that neither the EPA nor the Army Corps of Engineers was subject to suit in this case. Based on the administrative record, the District Court granted the defendants' motions for summary judgment. The plaintiffs appealed.
II. STANDARD OF REVIEW
The District Court's entry of a protective order must be reviewed for abuse of discretion. See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir.1992).
The court's dismissal of the claims under the citizen suit provisions of the Clean Water Act presents a legal issue, as does the decision to limit review to the administrative record. We review questions of law de novo. See Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir.1995).
The District Court's order of summary judgment must also be reviewed de novo. Great Lakes Dredge & Dock Co. v. Tanker, 957 F.2d 1575, 1578 (11th Cir.), cert. denied, 506 U.S. 981, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992). Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the light most favorable to the non-moving party. Augusta Iron and Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988). However, even in the context of summary judgment, an agency action is entitled to great deference. Under the Administrative Procedure Act, a court shall set aside an action of an administrative agency where it is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). The court shall not substitute its judgment for that of the agency. Citizens to...
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