Harrison Cnty. v. U.S. Army Corps of Eng'rs

Decision Date05 July 2022
Docket Number1:19cv986-LG-RPM
PartiesHARRISON COUNTY, MISSISSIPPI, et al. PLAINTIFFS v. U.S. ARMY CORPS OF ENGINEERS DEFENDANT
CourtU.S. District Court — Southern District of Mississippi
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR CONSIDERATION OF EXTRA-RECORD EVIDENCE

LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE.

BEFORE THE COURT is the [102] Motion for Consideration of Extra-Record Evidence filed by the plaintiffs: Harrison County, Mississippi, Hancock County, Mississippi, City of Biloxi, Mississippi, City of D'Iberville, Mississippi City of Waveland, Mississippi, Mississippi Hotel and Lodging Association, Mississippi Commercial Fisheries United, Inc. City of Pass Christian, Mississippi, and City of Diamondhead Mississippi. The parties have fully briefed the Motion. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the plaintiffs' Motion should be granted in part and denied in part.

BACKGROUND

The U.S. Army Corps of Engineers (“the Corps”), under the direction of the Secretary of the Army and supervision of the Chief of Engineers, is charged with designing and constructing flood control projects, including the Mississippi River and Tributaries Project (“MRT”). See 33 U.S.C. § 701b; 33 U.S.C. § 702a. One part of the MRT, the Bonnet Carre Spillway (“Spillway”), was constructed near Norco, Louisiana. It was designed to divert water from the Mississippi River into Lake Pontchartrain in an effort to prevent flooding in New Orleans. After entering Lake Pontchartrain, the water diverted by the Spillway flows into Lake Borgne and the Mississippi Sound.

The plaintiffs filed this lawsuit against the Corps, claiming that the Corps' more frequent, lengthier openings of the Spillway in recent years have caused significant damages to the environment and economy of the Mississippi Gulf Coast. The plaintiffs filed their claims pursuant to the Administrative Procedure Act (“APA”). They alleged that the Corps failed to perform the full environmental impact analysis required by the National Environmental Policy Act (“NEPA”). They also claimed that the Corps violated the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1855(b)(2), by failing to consult with the Secretary of Commerce before opening the Spillway. The plaintiffs asked the Court to:

(1) Declare under 28 U.S.C. § 2201 that the Corps of Engineers . . . [is] in violation of NEPA and the Magnuson-Stevens . . . Act; that the Corps of Engineers . . . [has] violated [NEPA] and the Magnuson-Stevens . . . Act; [and]
(2) Order the Corps of Engineers . . . to fully comply with the requirements of NEPA and the Magnuson-Stevens . . . Act with all due haste, pursuant to a schedule established and supervised by the Court ....

(1st Am. Compl. at 24, ECF No. 9). In other portions of their First Amended Complaint, the plaintiffs requested “compensation for losses, damages, expenses, attorneys' fees, and costs.” (Id. at 22, 23).

The Court has dismissed the plaintiffs' NEPA claims with prejudice. The decision is currently on appeal before the United States Court of Appeals for the Fifth Circuit. The parties are now proceeding with the Magnuson-Stevens Act claim. United States Magistrate Judge Robert P. Myers, Jr., entered a [101] Scheduling Order requiring the parties to first file any motions seeking permission to supplement the administrative record or include extra-record evidence. Dispositive motions on the merits are due no later than forty days after entry of an order granting or denying the motion to supplement the record or include extrarecord evidence. Nevertheless, Judge Myers “recognize[d] the possibility that certain issues may not be fully contextualized until dispositive motion briefing begins.” (Order at 1, ECF No. 101). The plaintiffs have filed the present [102] Motion for Consideration of Extra-Record Evidence.

DISCUSSION

The Magnuson-Stevens Act aims to “conserve and manage the fishery resources found off the coasts of the United States.” 16 U.S.C. § 1801(b)(1). The Act provides “Each Federal agency shall consult with the Secretary [of Commerce] with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this chapter.” 16 U.S.C. § 1855(b)(2); 16 U.S.C. § 1802(39). “The term ‘essential fish habitat' means those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.” 16 U.S.C. § 1802(10).

The plaintiffs allege that the Mississippi Sound, Lake Pontchartrain, and Lake Borgne have been designated as essential fish habitats. In their First Amended Complaint, the plaintiffs assert:

At a minimum the following actions [by the Corps] constitute actions requiring consultation [with the Secretary of Commerce] on Essential Fish Habitat[s]:
A. The continuing construction and operation of the Mississippi River and Tributaries Project.
B. The issuance of the Water Control Plans and other documents governing the operation of the Bonnet Carre Spillway, the Morganza Spillway and Floodway, the Old River Control Complex, and the Birds Point-New Madrid Floodway.
C. The specific decisions by the Corps of Engineers . . . to open the Bonnet Carre Spillway for extended periods of time.

(1st Am. Compl. at 22, ECF No. 9). The plaintiffs further allege that the Corps' failure to consult with the Secretary of Commerce before these actions constituted an unlawful failure to act under the Administrative Procedure Act, 5 U.S.C. § 706.

Courts reviewing an agency's action under the APA review the whole administrative record or those parts of it cited by a party. 5 U.S.C. § 706. Thus, “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). In the present case, the plaintiffs ask the Court to permit them to submit extra-record evidence as well as some evidence that they assert the Corps should have included in the administrative record.

The plaintiffs first argue that this Court can consider evidence outside the administrative record because this is a “failure to act” case filed pursuant to 5 U.S.C. § 706(1). The plaintiffs explain:

The basic factual question in this case is whether there was “any action” undertaken by the Corps that “may adversely affect any essential fish habitat.” 16 U.S.C. § 1855(b)(2). However, there is no documented decision by the Corps on these issues. There was no public notice seeking comment on a decision about these issues, and no decision document. There is instead the complete lack of a decision, or any articulation of reasoning by the agency.

(Pls.' Memo. at 7, ECF No. 103). The Corps disputes the plaintiffs' argument that the record review rule is inapplicable to failure to act claims.

There is a split of authority as to whether failure to act claims are limited to the administrative record. Most cases that have held that failure to act claims are not limited to the record pertain to NEPA claims or either rely upon a NEPA case, Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000). In Dombeck, the court held, “In such cases, review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record.” Dombeck, 222 F.3d at 560. In fact, some courts, including the Fifth Circuit, have adopted a “NEPA exception” to the administrative record rule. Davis Mountains Trans-Pecos Heritage Ass'n. v. Fed. Aviation Admin., 116 Fed.Appx. 3, 12 (5th Cir. 2004). This is because

[d]eviation from this “record rule” occurs with more frequency in the review of agency NEPA decisions than in the review of other agency decisions.... This occurs because NEPA imposes a duty on federal agencies to compile a comprehensive analysis of the potential environmental impacts of its proposed action, and review of whether the agency's analysis has satisfied this duty often requires a court to look at evidence outside the administrative record.

Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 14-15 (2d Cir. 1997), quoted in Sierra Club v. Peterson, 185 F.3d 349, 369-70 (5th Cir. 1999), vacated on other grounds on reh'g, 228 F.3d 559 (5th Cir. 2000).

In the present case, the plaintiffs' NEPA claims have been dismissed and are on appeal. As for the remaining Magnuson-Stevens Act claim, the plaintiffs ask the Court to determine whether certain actions of the Corps had the potential to adversely affect any Essential Fish Habitat. Thus, this case, to some degree, will require a review of the Corps' actions. In this circumstance, it is possible that there will be enough information in the record to resolve the merits in this case. For this reason, the Court finds that NEPA cases like Dombeck are not persuasive here to the extent those cases hold that failure to act cases are never limited to the record.

Cases that hold that failure to act claims are presumptively restricted to the record primarily rely on the language of the APA. See, e.g., Biodiversity Legal Found. v Norton, 180 F.Supp.2d 7, 10 (D.D.C. 2001); see also Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 128 F.Supp.2d 762, 767-68 n.8 (E.D. Pa. 2000). After discussing failure to act claims and claims challenging agency action, the APA provides, “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706 (emphasis added). This...

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