Georgia River Network v. U.S. Army Corps of Eng'rs, 4:10-cv-267

CourtU.S. District Court — Southern District of Georgia
Writing for the CourtB. AVANT EDENFIELD
PartiesGEORGIA RIVER NETWORK and AMERICAN RIVERS, Plaintiffs, LEON COUNTY, FLORIDA, Plaintiff-Intervenor, v. U.S. ARMY CORPS OF ENGINEERS, LT. GENERAL ROBERT L. VAN ANTWERP, U.S. Army Corps of Engineers; COLONEL JEFFREY M. HALL, U.S. Army Corps of Engineers, Savannah District; RUSSELL L. KAISER, U.S. Army Corps of Engineers, Savannah District, Defendants, GRADY COUNTY BOARD OF COMMISSIONERS, Defend ant-Intervenor.
Docket Number4:10-cv-267
Decision Date19 March 2012

GEORGIA RIVER NETWORK and AMERICAN RIVERS, Plaintiffs,
LEON COUNTY, FLORIDA, Plaintiff-Intervenor,
v.
U.S. ARMY CORPS OF ENGINEERS, LT. GENERAL ROBERT L. VAN
ANTWERP, U.S. Army Corps of Engineers; COLONEL JEFFREY M.
HALL, U.S. Army Corps of Engineers, Savannah District; RUSSELL L.
KAISER, U.S. Army Corps of Engineers, Savannah District, Defendants,
GRADY COUNTY BOARD OF COMMISSIONERS, Defend ant-Intervenor.

4:10-cv-267

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

Dated: March 19, 2012


ORDER

I. INTRODUCTION

On May 28, 2010, the United States Army Corps of Engineers ("Corps") issued the Grady County Board of Commissioners ("Grady County") a permit to construct a 960-acre fishing lake. See Doc. 1 at 1.

Plaintiffs Georgia River Network and American Rivers ("Plaintiffs") filed this action to invalidate the permit. See Doc. 1 at 49. Plaintiffs are environmental conservation organizations with members residing in Grady County whose enjoyment of the affected lands would be disturbed by the proposed lake. See Doc. 1 at 5-6.

Plaintiff-Intervenor Leon County ("Leon County") borders Grady County to the south. See Doc. 50 at 2. The project will impound Tired Creek, which joins the Ochlockonee River, potentially affecting the river's water quantity and quantity as it flows through Leon County. See Doc. 43-1 at 3. Plaintiffs and Leon County challenge the Corps's permit under the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). See Docs. 1; 43-1.

Before the Court are Leon County's "Motion to Consider Extra-Record Evidence," "Motion to Consider 72 Federal Register 220, 64286-64340, and 63 Federal Register 50, 12664-12687," "Motion for Summary Judgment," "Motion for Judgment on the Pleadings," Grady County's "Motion to Amend Answer," "Motion for Summary Judgment," Plaintiffs' "Motion for Summary Judgment," "Motion to Compel Completion of the Administrative Record," and the Corps's "Cross-Motion for Summary Judgment." See Docs. 55; 57; 62; 93; 60; 85; 63; 66; 86.

II. MOTIONS TO SUPPLEMENT

A. Motion to Consider Extra-Record Evidence

Leon County moves the Court to consider extra-record evidence—two maps—which it claims "show[] how the Tired Creek Project and Lake Iamonia are connected." See Doc. 55 at 5. Specifically, Leon County cites the maps as

Page 2

demonstrating that Lake Iamonia is only fed by the Ochlockonee River when the river is at flood stage. See id. at 4. Leon County filed the affidavit of John Kraynak, a professional engineer, to explain the maps. See Doc. 54. Leon County contends that the Corps failed to examine the Tired Creek project's effects on the floodwaters that empty into Lake Iamonia. See Doc. 55 at 4.

Grady County argues that Leon County failed to show that the proposed extra-record evidence falls under any exception to the rule limiting judicial review to the administrative record. See Doc. 68. The Corps also questions the relevancy or need for the evidence, contending that the relationship between the two bodies of water is already addressed in the administrative record. See Doc. 73 at 2. The Corps has already agreed there is a connection between Lake Iamonia and the Tired Creek project but disputes the duration and significance of that connection. See id. Moreover, the Corps argues that Leon County should have supplemented the administrative record prior to issuance of the permit. See id. at 3.

"The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). "The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmaking." See id. at 744.

Under "certain circumstances," a reviewing court may look beyond the administrative record.

For example, supplementation of the administrative record may be appropriate where:
(1) an agency's failure to explain its action effectively frustrates judicial review;
(2) it appears that the agency relied on materials not included in the record;
(3) technical terms or complex subjects need to be explained; or
(4) there is a strong showing of agency bad faith or improper behavior.

Altamaha Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 2007 WL 1830864, at *2 (S.D. Ga. June 21, 2007) (quoting Pres. Endangered Areas of Cobb's History, Inc. ("PEACH') v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 n.l (11th Cir. 1996). "Such exceptions are 'narrowly construed,' however, and the party seeking discovery has 'a heavy burden to show that supplementation is necessary.'" Kirkpatrick v. White, 351 F. Supp. 2d 1261, 1272 (N.D. Ala. 2004) (quoting United States v. Amtreco, Inc., 806 F. Supp. 1004, 1006 (M.D. Ga. 1992)).

Leon County contends that the maps fall under the first two PEACH exceptions, arguing that the Corps "failed to acknowledge that Lake Iamonia is fed by the Ochlockonee River's floodwaters and not during normal flow" and that the record does not demonstrate "how the [Corps] determined that there was a connection between the Ochlockonee River and Lake Iamonia." See Doc. 76 at 3-4.

The Court declines to supplement the record with the two maps and supporting expert affidavit. First, Leon County has not

Page 3

"provided the court with [any] reason why they could not have provided the same or similar information to the Corps at an earlier time such that the information would have been incorporated into the [administrative record]." Galveston Beach to Bay Preserve v. U.S. Army Corps of Eng'rs, 2010 WL 3362266, at *6 (S.D. Tex. Aug. 25, 2010).

Second, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Lorion, 470 U.S. at 743 (emphasis added). Leon County had a substantial period of time before the issuance of the permit to provide documentation and evidence of its concerns. See AR M.6.

Moreover, although seemingly contesting the flood connection, see Doc. 86-1 at 40-41, a review of the record and pleadings demonstrates that the Corps does not dispute that Lake Iamonia is fed by flood waters of the Ochlockonee River. See Docs. 43-1 at 10; 84 at 6 (admitting that "Lake Iamonia is fed by flood waters of the Ochlocknee River"); 61 at 3; 87 at 3.

The relevant and contested issue raised by Leon County concerns the effect the Tired Creek lake will have on the waters feeding Lake Iamonia. The maps do not show the impact of the project on Lake Iamonia; for instance, the maps do not indicate or provide evidence of how or why the project's effect on downstream water flow will prevent flooding. See Doc. 55-1.

Leon County deems it "common sense that a decrease in just 1% of the available downstream flow" could prevent floodwaters from reaching Lake Iamonia. See Doc. 76 at 4. As discussed, the Corps admits that floodwaters flow into Lake Iamonia. Thus, because the maps purportedly demonstrate no more than what the Corps has already admitted, the Court finds it unnecessary to supplement the record with the maps.

Leon County's "Motion to Consider Extra-Record Evidence," see Doc. 55, is DENIED. Leon County has not satisfied its heavy burden that supplementation is necessary for the Court's review.

B. Motion to Consider Federal Register

Leon County beseeches the Court to take judicial notice of sections of the Federal Register that discuss endangered or protected species living in or on the banks of the Ochlockonee River and associated areas. See Doc. 57. Leon County did not attach the sections to be noticed to its filing.

Grady County opposes notice on the grounds that the proposed evidence consists of "legislative facts," is irrelevant, and is outside the administrative record. See Doc. 69. The Corps responds that it does not "disagree that the Court may take judicial notice of the Federal Register notices cited by Leon County," but reserved their right to contest the notices' relevancy. See Doc. 72 at 1.

The Court "must take judicial notice if a party requests it and the court is supplied with the necessary information." Fed. R. Evid. 201(c)(2). This rule governs the judicial notice of adjudicative, not legislative, facts. Fed. R. Evid. 201(a). Regardless, 44 U.S.C. § 1507 provides that

Page 4

the "contents of the Federal Register shall be judicially noticed."

This statutory command does not override the evidentiary requirements of relevancy. United States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998). "Irrelevant evidence is not admissible." Fed. R. Evid. 402. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.

The fact that the Federal Register entries are not part of the administrative record does not necessarily preclude this Court from taking judicial notice of them. See Rohnert Park Citizens to Enforce CEQA v. U.S. Dep't of Tramp., 2009 WL 595384, at *3 (N.D. Cal. Mar. 5, 2009) (finding it obligatory to take notice of Federal Register entries). Yet, the Court still...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT