La. Crawfish Producers Ass'n W. v. Mallard Basin, Inc.
| Decision Date | 09 January 2019 |
| Docket Number | NO. 6:10-cv-1085 (lead),NO. 6:11-cv-0461 (member),6:10-cv-1085 (lead),6:11-cv-0461 (member) |
| Court | U.S. District Court — Western District of Louisiana |
| Parties | LOUISIANA CRAWFISH PRODUCERS ASS'N WEST; ET AL. v. MALLARD BASIN, INC.; ET AL. |
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 (COE00047-49). 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, theplaintiffs 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, att. 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 reevaluation 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, 230, 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 forjudicial review, cross-motions for summary judgment, and additional arguments submitted by the plaintiffs for consideration of extra-record evidence. Docs. 273 att. 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.
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., Lnc. 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).
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...
To continue reading
Request your trial