Ctr. for a Sustainable Coast v. U.S. Army Corps of Eng'rs

• Docket Number: 22-11079
• Decision Date: 02 May 2024
• Citation: 100 F.4th 1349
• Parties: CENTER FOR A SUSTAINABLE COAST, Karen Grainey, Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS, District Commander and District Engineer, U.S. Army Corps of Engineers, Savannah District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

100 F.4th 1349

CENTER FOR A SUSTAINABLE COAST, Karen Grainey, Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS, District Commander and District Engineer,U.S. Army Corps of Engineers, Savannah District, Defendants-Appellees.

No. 22-11079

United States Court of Appeals, Eleventh Circuit

Filed: May 2, 2024

Appeal from the United States District Court for the Southern District of Georgia, D.C.Docket No. 2:19-cv-00058-LGW-BWC

Jon L. Schwartz, Law Office of Jon L. Schwartz, Atlanta, GA, Robert B. Jackson, IV, Law Office of Robert Jackson, Atlanta, GA, for Plaintiffs-Appellants.

Michael Thomas Gray, Amanda Stoner, DOJ-ENRD, Washington, DC, Patrick James Schwedler, University of Georgia School of Law, First Amendment Clinic, Athens, GA, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, Ga, for Defendants-Appellees.

Before Grant, Tjoflat, Circuit Judges, and Huffaker,^*District Judge.

Grant, Circuit Judge:

This is a classic procedural rights case.The Center for a Sustainable Coast, along with its member, Karen Grainey, sued the U.S. Army Corps of Engineers, upset that the Corps had issued a dock permit without full environmental review under the National Environmental Policy Act.The Center established injury by showing that several of its members regularly visit Cumberland Island, where the dock is sited, and suffer an ongoing aesthetic injury on those visits.The Center also showed that the environmental review the Corps skipped could have protected that interest, at least in theory.

That should have been enough.For procedural rights cases, though injury in fact remains a firm requirement, standards for both causation and redressability are relaxed.So long as a plaintiff alleges that the challenged (or omitted) procedure protects a concrete interest, causation and redressability typically follow—even though we can't know whether that procedure, correctly performed, would have resulted in the substantive outcome that the plaintiff desires.

Here, though, the district court dismissed the lawsuit, concluding that the Center did not have standing because its harm was not redressable.The dock, it said, had already been built, so the court's ability to provide relief had ended along with construction.

We disagree.To start, the allegations here mirror those in other cases where this Court has found standing.The Center has identified a concrete aesthetic interest and pleaded that the NEPA process would protect that interest.Directing full NEPA review would thus redress the Center's procedural injury.Plus, the permit here does more than allow construction—it authorizes the dock's continued existence.So this case is not like the narrow set of procedural rights cases in which the plaintiffs' claims were dismissed as moot because the challenged project was already completed.

We thus hold that the Center had standing to bring at least one of its procedural rights claims.But we find the Center's administrative record argument premature for consideration, and we affirm the dismissal of the Seashore Act claim, because the Center abandoned that argument on appeal.

I.

Cumberland Island is the largest and southernmost of Georgia's barrier islands.Long used as a vacation retreat by various Carnegies and other noteworthy tycoons, most of the island is scenic uplands and marshlands.SeeHigh Point, LLLP v. Nat'l Park Serv., 850 F.3d 1185, 1188(11th Cir.2017).The United States has since acquired title to most of the island, designating more than 20,500 acres as wilderness or potential wilderness that is to remain in a "primeval" and "undeveloped" state.Id. at 1189, 1191(quotation omitted).Still, some land remains in private hands, owned mostly by descendants of those who vacationed on the island during its heyday.Id. at 1188.

The status quo on Cumberland Island is maintained by the Cumberland Island National Seashore Act, 16 U.S.C. § 459i et seq.That Act designates the entire island as a National Seashore, and authorizes the Secretary of the Interior to recommend areas for a wilderness designation and to purchase or acquire "lands, waters, and interests therein."16 U.S.C. § 459i, -1, -8.Property acquired by the Secretary must, with some exceptions, be preserved "in its primitive state," and "no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing" on the island.Id.§ 459i-5(b).But the Seashore Act does not prohibit the sale or use of private property on the island.Seeid.§ 459i-3;High Point, LLLP, 850 F.3d at 1189.

Against that backdrop, Lumar LLC bought an undeveloped 82-acre residential plot from a private seller in the 1990s.In 2015, Lumar petitioned the Army Corps of Engineers for a permit to build an access dock "adjacent to" its property.Corps approval was required under the Rivers and Harbors Act of 1899, which makes it unlawful to build certain structures in navigable rivers or waters of the United States unless the plans are "recommended" by the Corps and "authorized" by the Secretary of the Army. 33 U.S.C. § 403.

As it exercises that authority, the Corps is bound by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.NEPA requires a rigorous approval process for any "major" projects, including both a formal environmental review and public notice and comment.See33 C.F.R. § 325 app. B at 6a, 7a(2022).But sometimes these requirements can be skipped.Corps regulations list "categorical exclusions" from NEPA review, one of which is "applications which qualify as letters of permission."Id.§ 325 app. B at 6a(5).These letters of permission are available when "in the opinion of the district engineer, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition."Id.§ 325.2(e)(1)(i).

The Corps issued a letter of permission approving Lumar's proposed 500-square-foot dock—along with a gangway, pier head, and 200-foot walkway.That letter allowed the Corps (and Lumar) to avoid NEPA's ordinary approval process.This lawsuit followed from the Center for a Sustainable Coast, a 501(c)(3) organization whose members "use and enjoy Cumberland Island National Seashore for aesthetic, scenic, recreational, historical, cultural, and scientific values."¹The Center asserts that its members suffer an aesthetic harm each time they view the dock.

The complaint raises two claims.Count I argues that the decision to issue a letter of permission violated the Cumberland Island National Seashore Act because the Corps failed to properly consider the Act's mandate to preserve the island's primitive character.Count II alleges that the decision to issue any letter of permission was arbitrary and capricious.Instead, the Center claims, the Corps should have designated this a "major" project and conducted the more robust review required by NEPA.²

Rather than address the merits of the Center's argument, the district court granted summary judgment to the Corps, concluding that the Center lacked standing.According to the district court, every element of standing was present except one: redressability.In its view, even if the permitting defects alleged by the Center were corrected, the dock would still exist—and so would the Center's aesthetic injury.The Center appeals the district court's conclusion that neither of its claims were redressable.³

II.

"We review issues of standing de novo."Swann v. Sec'y, State of Georgia, 668 F.3d 1285, 1288(11th Cir.2012)(quotation omitted).And we must "assume that on the merits the plaintiffs would be successful in their claims."Culverhouse v. Paulson & Co., 813 F.3d 991, 994(11th Cir.2016)(quotation omitted).

III.

A.

The first claim we consider is Count II—the Center's NEPA claim—which the district court dismissed for lack of standing.A party has standing when it "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924(11th Cir.2020)(en banc)(quotation omitted).

We start with the "hard floor of Article III jurisdiction that cannot be removed by statute"—injury in fact.Summers v. Earth Island Inst., 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1(2009).The Corps argued below that there was no such injury.But it no longer challenges that conclusion, and for good reason.At bottom, the Center's members allege an aesthetic injury from viewing the dock, which is a concrete interest.SeeLujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).They also allege a procedural harm related to the protection of that aesthetic injury: that the Corps failed to complete the full NEPA process (including a formal environmental review), choosing instead to issue a letter of permission.Finally, they connect that procedural harm with their concrete injury—if the full NEPA process had been followed, they argue, the dock would not have received a permit, which would have protected their well-pleaded aesthetic interests.

The injury here is identical to the one we encountered in Ouachita Watch League v. Jacobs, where we outlined what was necessary to show injury in fact in a procedural rights case: "a plaintiff must allege that the agency violated certain procedural rules, that these rules protect a plaintiff's concrete interests and that it is reasonably probable that the challenged action will threaten these concrete interests."463 F.3d 1163, 1170(11th Cir.2006).We even mapped these points onto the NEPA context, explaining that "a cognizable procedural injury exists when a plaintiff alleges that a proper [environmental impact statement] has not been prepared" and "also...