Florida Keys Citizens Coal. v. U.S. Army Corps

• Decision Date: 11 April 2005
• Docket Number: No. 04-23175-CIV.,04-23175-CIV.
• Citation: 374 F.Supp.2d 1116
• Parties: FLORIDA KEYS CITIZENS COALITION, INC., Sierra Club, Inc., and Friends of the Everglades, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Col. Robert M. Carpenter, District Engineer, in his official capacity, United States Department of Transportation, Norman Mineta, Secretary, in his official capacity, Federal Highway Administration, Mary E. Peters, in her official capacity, Jim St. John, in his official capacity, United States Environmental Protection Agency, Michael O. Leavitt, in his official capacity, James I. Palmer, in his official capacity, United States Fish and Wildlife Service, Steven A. Williams, in his official capacity, Sam Hamilton, in his official capacity, James J. Slack, in his official capacity, National Oceanic and Atmospheric Administration, William T. Hogarth, in his official capacity, and Dr. Roy E. Crabtree, Defendants, and Florida Department of Transportation, Defendant-Intervenor.
• Court: U.S. District Court — Southern District of Florida

374 F.Supp.2d 1116

FLORIDA KEYS CITIZENS COALITION, INC., Sierra Club, Inc., and Friends of the Everglades, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Col. Robert M. Carpenter, District Engineer, in his official capacity, United States Department of Transportation, Norman Mineta, Secretary, in his official capacity, Federal Highway Administration, Mary E. Peters, in her official capacity, Jim St. John, in his official capacity, United States Environmental Protection Agency, Michael O. Leavitt, in his official capacity, James I. Palmer, in his official capacity, United States Fish and Wildlife Service, Steven A. Williams, in his official capacity, Sam Hamilton, in his official capacity, James J. Slack, in his official capacity, National Oceanic and Atmospheric Administration, William T. Hogarth, in his official capacity, and Dr. Roy E. Crabtree, Defendants, and Florida Department of Transportation, Defendant-Intervenor.

No. 04-23175-CIV.

United States District Court, S.D. Florida, Miami Division.

April 11, 2005.

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Mark A. Brown, Tampa, FL, Thomas Snodgrass, and Pamela Tonglao, Washington, DC, for U.S.

ORDER

HUCK, District Judge.

THIS CAUSE came before the Court on March 29, 2005 for a non-jury trial on the merits of the Plaintiffs' Supplemental Complaint seeking declaratory and injunctive relief against the Defendants, who are various federal agencies and agencies' representatives acting in their official capacities,¹ pursuant to the Administrative Procedure Act ("APA"). For the reasons discussed below, the Court finds that the Plaintiffs are not entitled to the relief they seek.

BACKGROUND

On March 22, 2005, this Court was requested to hear Plaintiffs' Motion for Preliminary Injunction on an emergency basis. The following day, March 23, 2005, the Court held a status conference to discuss scheduling and other matters with counsel. At the status conference, the parties advised the Court that they now had available the complete record of all of the pertinent administrative proceedings related to the subject highway project ("Administrative Record"). The parties agreed that this matter could and should be resolved based solely on that Administrative Record, eliminating the need for testimony or other evidence outside that record. The parties also requested that this matter be resolved on an expedited basis. In view of this, and with the parties' agreement, the Court consolidated the preliminary injunction hearing with a non-jury trial on the merits pursuant to Federal Rule of Civil Procedure 65(a). The trial was held on March 29, 2005.

In summary, the Plaintiffs, Florida Keys Citizens Coalition, Inc., Sierra Club, Inc. and Friends of the Everglades, request that this Court enjoin the Defendants from proceeding with a highway improvement project in the Florida Keys ("Project"). Major construction is scheduled to begin April 4, 2005, thus the need for an expedited resolution of Plaintiffs' claims. The Plaintiffs are all not-for-profit environmental groups with members who have interests in the Florida Keys which are the focus of their challenge. Plaintiffs filed their original complaint on December 20, 2004, which was supplemented on March 15, 2005. The Plaintiffs challenge the decision-making processes and ultimate decisions which have led to federal agencies' approval of the Project. Those challenged federal agency decisions include: (1) the Federal Department of Transportation's ("DOT") and the Federal Highway Administration's ("FHWA") decision in 2004, as the lead or action agency, not to prepare, or require the state partner, the Florida Department of Transportation ("FDOT"), to prepare, a second Environmental Impact Statement ("EIS") or a supplement to the 1992 Environmental Impact Statement for the Project, in violation of the National Environmental Policy Act ("NEPA") and attendant federal regulations; (2) the DOT's and the FHWA's decisions not to evaluate, or require the FDOT to properly evaluate, the actual or constructive use of the Everglades National Park in violation of the Federal Department of Transportation Act; (3) the U.S. Army Corps of Engineers' ("Corps") decision to issue a Section 404 Permit in violation of the Clean Water Act; (4) U.S. Fish & Wildlife Service's ("FWS") decision to issue a Biological Opinion in violation of the Endangered Species Act; and (5) the National Oceanic & Atmospheric Administration's National Marine Fisheries Service's ("NMFS") decision to issue a Biological Opinion in violation of the Endangered Species Act. As an interested party, the FDOT was granted leave to intervene in support of the Project.

Based on the Administrative Record, the parties' respective legal memoranda and oral argument at the trial, the Court makes the following findings of facts and conclusions of law.

JURISDICTION AND VENUE

This Court has jurisdiction over this civil action under 28 U.S.C. § 1331 (federal question); under 5 U.S.C. §§ 702 and 706(1),(2)(A),(C), (D) (Administrative Procedure Act); under 28 U.S.C. § 1361 (action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the Plaintiffs); under 33 U.S.C. § 1365 (citizen suits under the Clean Water Act); under 16 U.S.C. § 1540(g) (citizen suits under the Endangered Species Act); and pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Venue is proper in the Southern District of Florida under: (1) 28 U.S.C. § 1391(b) because the actions giving rise to Plaintiffs' claims occur here; (2) 28 U.S.C. § 1391(e) because it is a civil action against an agency and/or officers or employees of an agency of the United States acting in their official capacities; and (3) under 5 U.S.C. § 703.

APPLICABLE STATUTES AND REGULATIONS

In order to better understand and evaluate the Plaintiffs' claims, a review of the applicable federal statutes and attendant regulations, which set forth the requirements for the challenged decisions, is in order.

The National Environmental Policy Act

The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., is essentially a procedural statute that requires federal agencies to inform themselves of the environmental effects of proposed federal actions. See Sierra Club v. United States Army Corps of Eng'rs, 295 F.3d 1209, 1214 (11th Cir.2002) ("[NEPA] is not a substantive environmental statute which dictates a particular outcome if certain consequences exist."). When an agency proposes a "major [f]ederal action[] significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), NEPA requires preparation of an EIS in which the agency must examine: (1) the impacts of the proposed action; (2) any adverse environmental effects of the action that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local, short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitment of resources which would be involved. See 42 U.S.C. § 4332.

If there is a question whether a proposed action satisfies these criteria, an environmental assessment ("EA") may be prepared. An EA is a brief and concise document containing sufficient evidence and analysis for the agency to determine whether to prepare a more extensive EIS or a finding of no significant impact. 40 C.F.R. 1508.9(a)(1); River Rd. Alliance, Inc. v. Corps of Eng'rs of United States Army, 764 F.2d 445, 449 (7th Cir.1985) ("The purpose of an [EA] is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an [EIS]."). An EA must include only "brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b). A third option is available for certain federal actions that have been determined, because of their very nature and past experience, not to have, individually or cumulatively, a significant effect on the human environment. 40 C.F.R. §§ 1501.4(a), 1508.4. Such actions are considered "categorically excluded" from the requirement of either an EA or EIS review.

Section 4(f) of the Department of Transportation Act

The Federal Department of Transportation Act ("FDTA"), 49 U.S.C. § 303 (commonly known as "Section 4(f)"), provides, in pertinent part, that the Secretary of Transportation may approve a transportation project requiring the use of publicly-owned park lands or a publicly-owned site of national, state, or local significance only if: (1) there is no prudent and feasible alternative to using that land; and (2) the proposed program or project includes all possible planning to minimize harm resulting from the use. Once it is determined that a protected resource will be actually or constructively "used" by a project, subsection 4(f)(1) requires the FHWA to determine whether there is any feasible and prudent alternative to using that resource. If no feasible and prudent alternative is available, the FHWA must find pursuant to 4(f)(2) that the plans for the project minimize the harm to the protected resource.

The Clean Water Act

The Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., prohibits the discharge of pollutants, including dredged spoil, into waters of the United States, except in compliance with various sections of the CWA, including Section 404. See 33 U.S.C. § 1311(a). "Waters of the United States" is defined by regulation to include wetlands. 33 C.F.R. § 328.3(a), (b). Section 404(a) authorizes the Secretary of the Army ("Secretary"), acting through the Corps, to issue permits for the discharge of dredged or fill material into waters of the United States ("Section...