Alliance to Prot. Nant. Sound v. U.S. Dept., Army

• Decision Date: 16 February 2005
• Docket Number: No. 03-2604.,03-2604.
• Citation: 398 F.3d 105
• Parties: ALLIANCE TO PROTECT NANTUCKET SOUND, INC.; Ronald G. Borjeson; Wayne G. Kurker; Shareen Davis; Ernest R. Eldredge; David Ellsworth; Robert Hazelton; Osterville Anglers Club, Inc.; Hyannis Anglers Club, Inc., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF the ARMY; Thomas E. White, in his Official Capacity as Secretary of the Army; United States Army Corps of Engineers; Lt. General Robert B. Flowers, in his Official Capacity as Chief of Engineers for the United States Army Corps of Engineers; Colonel Thomas L. Koning, in his Official Capacity as District Engineer for the United States Army Corps of Engineers; Cape Wind Associates, LLC, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

398 F.3d 105

ALLIANCE TO PROTECT NANTUCKET SOUND, INC.; Ronald G. Borjeson; Wayne G. Kurker; Shareen Davis; Ernest R. Eldredge; David Ellsworth; Robert Hazelton; Osterville Anglers Club, Inc.; Hyannis Anglers Club, Inc., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF the ARMY; Thomas E. White, in his Official Capacity as Secretary of the Army; United States Army Corps of Engineers; Lt. General Robert B. Flowers, in his Official Capacity as Chief of Engineers for the United States Army Corps of Engineers; Colonel Thomas L. Koning, in his Official Capacity as District Engineer for the United States Army Corps of Engineers; Cape Wind Associates, LLC, Defendants, Appellees.

No. 03-2604.

United States Court of Appeals, First Circuit.

Heard September 16, 2004.

Decided February 16, 2005.

COPYRIGHT MATERIAL OMITTED

Benjamin S. Sharp, with whom Donald C. Baur, Perkins Coie LLP, Franklin H. Levy and Duane Morris, LLP, were on brief, for appellants.

David C. Shilton, Attorney, United States Department of Justice, with whom Thomas L. Sansonetti, Assistant Attorney General, Environment and Natural Resources Division, Gerard T. Leone, Acting United States Attorney, Anton P. Giedt, Assistant United States Attorney, Jon M. Lipshultz, John A. Bryson, and Richard Santino, of cousel, Army Corps of Engineers, Concord, MA, were on brief, for the federal appellees.

Timothy J. Dacey, with whom Kurt W. Hague and Goulston & Storrs, P.C., were on brief, for appellee Cape Wind Associates, LLC.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

On November 20, 2001, Cape Wind Associates, L.L.C. ("Cape Wind") submitted an application to the U.S. Army Corps of Engineers ("Corps") for a navigability permit under Section 10 of the Rivers and Harbors Act of 1899 ("Section 10"), 33 U.S.C. § 403,¹ to construct and operate an offshore data tower in an area of Nantucket Sound known as Horseshoe Shoals. Horseshoe Shoals is located on the Outer Continental Shelf ("OCS"), land subject to federal jurisdiction and control under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331.

The proposed tower was to consist of a platform and a fixed monopole approximately 170 feet high, supported by three steel piles driven into the ocean floor. Various instrumentation was to be attached to the data tower in order to gather data for use in determining the feasibility of locating a wind energy plant on Horseshoe Shoals. A separate permit application for the wind energy plant — a complex originally proposed to include 170 wind turbines with blade rotors rising 423 feet above mean sea level, occupying twenty-six square miles of Horseshoe Shoals — was submitted to the Corps in November 2001. That application is not at issue in the instant appeal, and we therefore will not engage in any analysis of the Corps's authority to permit construction of the wind energy plant.

On December 4, 2001, the Corps announced that it was considering Cape Wind's application for the data tower, and invited the public to submit comments during a period that included two public hearings and ended on May 13, 2002. On August 19, the Corps issued a Section 10 permit authorizing Cape Wind to construct and maintain the data tower, subject to the imposition of sixteen special conditions, including that Cape Wind remove the data tower within five years, that it post a $300,000 bond for emergency repairs or removal, and that it share the data collected with, and permit the installation of additional data-gathering equipment by, government agencies, research institutions, and others. Department of the Army Permit No. 199902477 (Aug. 19, 2002). The permit was accompanied by an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI"), as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331-32.

Appellants subsequently filed an action against the Corps in the District of Massachusetts, arguing that (1) the Corps lacked authority to issue a Section 10 permit for the data tower; (2) the Corps acted arbitrarily and capriciously, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), by granting Cape Wind's permit application in spite of Cape Wind's lack of property rights on the OCS; and (3) the Corps failed to comply with NEPA requirements for evaluating the data tower's environmental impacts. Upon the receipt of cross motions for summary judgment, the district court granted summary judgment in favor of the Corps and intervenor Cape Wind. We review that decision de novo, construing the evidence in the light most favorable to appellants. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001). We will uphold the grant of summary judgment if there is no genuine issue of material fact and appellees are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We affirm the decision of the district court.

I. Discussion

A. Corps jurisdiction

The reach of the Corps's Section 10 permitting authority on the OCS turns on a question of statutory interpretation. Congress passed OCSLA in 1953 to assert federal jurisdiction over the OCS and to establish a regulatory framework for the extraction of minerals therefrom. See 43 U.S.C. § 1332; see also Ten Taxpayer Citizens Group v. Cape Wind Assocs., 373 F.3d 183, 188 (1st Cir.2004) ("A major purpose of the OCSLA was to specify that federal law governs on the [OCS]....") (internal quotation marks omitted). Accordingly, OCSLA extended the Corps's Section 10 regulatory authority "to prevent obstruction to navigation in the navigable waters of the United States ... to artificial islands and fixed structures located on the [OCS]." 43 U.S.C. § 1333(f) (1953). In 1978, this grant of authority was amended to apply instead to "the artificial islands, installations, and other devices referred to in subsection (a) of this section." 43 U.S.C. § 1333(e) (2004). Subsection (a), in turn, extends federal jurisdiction to:

all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources.

Id. at § 1333(a)(1) (emphasis supplied). Appellants argue that the clause "which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom," is restrictive, and limits the Corps's permitting authority on the OCS to structures related to the extraction of mineral resources.² Thus, they argue, the Corps lacked authority to grant a Section 10 permit for construction of Cape Wind's data tower. The Corps, on the other hand, has determined that its Section 10 authority "was extended to artificial islands, installations, and other devices located on the seabed, to the seaward limit of the [OCS], by section 4(f) of [OCSLA] as amended." 33 C.F.R. § 320.2(b) (internal citation omitted).

The district court determined that the "which may be" clause of Subsection (a) was not restrictive. See Alliance to Protect Nantucket Sound, Inc. v. United States Dep't of the Army, 288 F.Supp.2d 64, 75 (D.Mass.2003) (finding that OCSLA's text supports the Corps's position that Section 10 jurisdiction extends to all OCS structures "including, but not limited to, those that `may be' used to explore for, develop, or produce resources" (quoting 43 U.S.C. § 1333(a)(1)) (emphasis supplied by district court)). Thus, the district court held, the Corps has authority to grant a Section 10 permit for all structures on the OCS, regardless of their function.

We find the statutory text in question ambiguous. It is not apparent whether the reference to Subsection (a) inserted into Subsection (e) in 1978 refers to "all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed," 43 U.S.C. § 1333(a)(1), or only to all such installations used to explore, develop or produce resources. In light of this ambiguity, the Corps and Cape Wind invite us to defer to the Corps's interpretation of its authority, see 33 C.F.R. § 320.2(b), under the Chevron doctrine. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In this case, however, we find it unnecessary to reach the question of Chevron deference because legislative history reveals, with exceptional clarity, Congress's intent that Section 10 authority under OCSLA not be restricted to structures related to mineral extraction.³ See id. at 843 n. 9, 104 S.Ct. 2778 ("If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."); Strickland v. Comm'r, ME. Dept. of Human Servs., 48 F.3d 12, 19-20 (1st Cir.1995) (evaluating legislative history to determine whether Congressional intent was unambiguously expressed).

In the conference report for the 1978 OSCLA amendments, Congress explained that the changes to Subsection (e)

were technical only and there was no intent to change present law. The existing authority of the Corps of Engineers ... applies to all artificial islands and fixed structures on the [OCS], whether or not they are erected for the purpose of exploring for, developing, removing and transporting resources therefrom. The amendment ... is not intended to change the scope of this authority, but merely to conform the description of the types of structures, no matter what their purpose, to the types of structures listed in subsection (a), namely all installations and other devices permanently or temporarily attached to the seabed. It is not the intention of the conferees to limit the authority of the Corps [ ] as to structures used for the...