Friends of the Mahoning River v. U.S. Army Corps of Eng'rs
| Decision Date | 09 September 2021 |
| Docket Number | 4:19CV2771 |
| Parties | FRIENDS OF THE MAHONING RIVER, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, et al. Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
This case concerns the future of the Mosquito Creek Wetlands in Northeast Ohio. Friends of the Mahoning River (“Friends”) challenges the decision of the United States Army Corps of Engineers and Colonel Andrew J. Short Commander, United States District Army Corps of Engineers Pittsburgh District (together, “the Corps”) to issue Permit LRP-2017-1643 (“the Permit”) to Defendant/Intervenor North Eastwood, LLC (“North Eastwood”). Pending before the Court are cross motions for summary judgment filed by Friends (ECF No. 36), the Corps (ECF No. 37), and North Eastwood (ECF No. 39). The motions are fully briefed. ECF Nos. 38, 40, 41, 42. For the foregoing reasons, the Court grants summary judgment in favor of Plaintiff, and denies the motions of Defendant and Defendant/Intervenor.
North Eastwood is the recipient of the Permit, which authorizes North Eastwood to permanently destroy and fill 15.95 acres of wetlands and 1, 608.5 linear feet of streams in Howland Township and the City of Niles in Trumbull County, Ohio. ECF No. 1-1 at PageID #:18. The Permit was issued on September 25, 2019 pursuant to § 404 of the Clean Water Act as part of North Eastwood's Id. The stated reason the Permit is needed is for the construction of a hospital and several other medical, office, and residential outbuildings at the Enterprise Park site. R. 4889-90.[1]
North Eastwood applied for the Permit in July 2018. R. 4918. With its application, it submitted an evaluation of twenty-three alternative proposed sites for the Project, using the self-identified necessary criteria. Id. The Corps rejected the use of some of these criteria in its own analysis based on the statutory factors: “While the applicant included proximity to accessory amenities and the appropriateness of existing zoning in their analysis, the Corps only considered location and proximity to geographic center to allow the hospital to act as a hub for medical services for the Trumbull County region, size of parcel accessibility, environmental feasibility, and estimated aquatic resource impact.” R. 4918.
North Eastwood also generated four design plans which were modifications to its existing facilities, but concluded that none of those plans presented practical alternatives to building a new facility. R. 4923-28. North Eastwood explained that the site at issue in this litigation, the one it selected, was the option it felt had the least amount of impact on aquatic resources while still fulfilling its goals for the Project. R. 545. While certain alternate sites would have less environmental impact, it did not believe that those alternatives would meet the Project's needs.
The Corps issued public notice of the application in August 2018 and received numerous comments. R. 4902-07. Both the Corps and North Eastwood issued responses to comments, although the Corps often simply deferred to North Eastwood's responses. See, e.g., R. 4899. After reviewing the comments received and other relevant material, the Corps released its decision to issue the permit in September 2019. R. 4886 4957. The Corps did not conduct any independent review of the project's economic viability, or the financial projections provided by North Eastwood. The Corps ultimately approved the site selected by North Eastwood, concluding, as it had, that there were no “practical” alternative locations for the Project. Plaintiff filed this lawsuit in November 2019 and later moved to supplement the administrative record, which the court denied in September 2020. ECF No. 32.
When a project such as this results in unavoidable environmental loss to waters of the United States, the law requires mitigatory efforts to offset the inevitable damage. 33 C.F.R. § 332.3(a). To offset the impact this Project will have on aquatic resources, the Corps required that North Eastwood purchase 30.5 wetland acre credits and 1, 620 linear feet of stream credits from the Stream & Wetland Foundation's Pittsburgh North In Lieu Fee Program, servicing, inter alia, the Mahoning River Watershed at a cost approaching $2, 000, 000. R. 2910. Additionally, North Eastwood is required to preserve a specific area of wetlands and streams adjacent to Mosquito Creek that is roughly 38 acres. Id. This preservation component of the mitigation plan will be enforced through an environmental covenant held by the Howland Township Trustees. Id. In considering its approval of the proposed site, the Corps conducted a public interest review to weigh the expected benefits of the project against the foreseeable detriments. R. 4886-90. At the conclusion of its analysis, the Corps determined that the foreseeable detriments did not outweigh the expected benefits. Id.
Plaintiff argues the Permit's issuance was improper because the Corps' analysis of alternative sites, public interest review, and the Permit's mitigation requirements were improper. ECF No. 36 at PageID#: 5812. Specifically, Plaintiff argues that the Corps' public interest review failed to include the requisite findings related to the Project's purpose (as defined by the Corps) and the public need for the project. Id. Plaintiff believes that the consideration given to possible alternatives was predetermined and failed to give practicable alternatives a fair examination. Id. Defendant and Intervenor move to have the Permit upheld because they argue that the Permit was issued in compliance with both the Clean Water Act and the Administrative Procedure Act. ECF No. 39-1 at PageID#: 5868. Defendant and Intervenor additionally allege that the public interest review conducted by the Corps, including determining benefits and need for the Project, was proper. Id.
A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of production under Rule 56. Celotex Corp. v. Catrett, 477 U.S. 317, 319 (1986). The burden may be satisfied by providing either affirmative evidence that negates an element of the non-movant's claim or by demonstrating “an absence of evidence to support the non-moving party's case.” Id. If the movant meets this initial burden, the non-movant must set forth the specific material facts which remain in dispute. Burkholder v. Wykle, 268 F.Supp.2d 835, 839 (N.D. Ohio Feb. 22, 2002). While the evidence of the non-movant is to be believed, and all justifiable inferences drawn in his favor, he must still “do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 840 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Agency actions are afforded great deference, as federal agencies often possess more expertise in their fields than members of the judiciary. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 (4:19CV2771) U.S. 837, 865 (1984). However, agency actions may be reversed by a court under the Administrative Procedure Act if the agency's actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law[.]” 5 U.S.C. § 706. A court confines its review “to the administrative record, which includes all materials compiled by the agency that were before the agency at the time the decision was made.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997) (cleaned). Thus, if the Court finds that the agency's actions were reasonable based on the administrative record, the Corps is entitled to summary judgment. Town of Norfolk v. U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1445 (1st Cir. 1992).
An agency action is “arbitrary and capricious” if the agency relied on factors which Congress did not intend it to consider, entirely failed to consider an important aspect of a problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). While a court may not substitute its judgment for that of the agency, Cty. of Westchester v. U.S. Dep't of Hous. & Urban Dev., 802 F.3d 413, 430-31 (2d Cir. 2015), this highly deferential standard does not equate to no review at all, Brodsky v. U.S. Nuclear Regulatory Comm'n, 704 F.3d 113, 119 (2d Cir. 2013). To uphold an agency's action, the court must conclude that the agency examined relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Motor Vehicle, 463 U.S. at 41.
The overall objective of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251. This Act grants the Secretary of the Army, after the opportunity for public hearings, authority to issue a permit for dredge or fill material to be discharged into navigable waters. Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1050 (2d Cir. 1985). The Act prohibits the Corps from “sanctioning a project that it finds will have a significant adverse impact on the marine environment.” Id. at 1051. The Corps may not issue a permit ...
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