Holy Cross Neighborhood Ass'n v. United States Army Corps of Engineers.

• Decision Date: 29 March 2011
• Docket Number: Civil Action No. 03–370.
• Citation: 774 F.Supp.2d 806
• Parties: HOLY CROSS NEIGHBORHOOD ASSOCIATIONv.UNITED STATES ARMY CORPS OF ENGINEERS.
• Court: U.S. District Court — Eastern District of Louisiana

774 F.Supp.2d 806

HOLY CROSS NEIGHBORHOOD ASSOCIATION

v.UNITED STATES ARMY CORPS OF ENGINEERS.

Civil Action No. 03–370.

United States District Court, E.D. Louisiana.

March 29, 2011.

Adam Babich, Roger Yamada, Thomas W. Davis, Tulane Environmental Law Clinic, Katherine Iannuzzi, Tulane Law School, New Orleans, LA, Jill Marie Witkowski, Jill M. Witkowski, Attorney at Law, San Diego, CA, for Holy Cross Neighborhood Association.Devon Lehman McCune, U.S. Department of Justice, Denver, CO, Margaret Montgomery Groome, U.S. Attorney's Office, Robert David Northey, U.S. Army Corps of Engineers Office of Counsel, New Orleans, LA, Jessica O'Donnell, Natalia T. Sorgente, Thomas L. Sansonetti, U.S. Department of Justice, Washington, DC, for United States Army Corps of Engineers.

ORDER & REASONS

ELDON E. FALLON, District Judge.

Before the Court is Defendant United States Army Corps of Engineers' (“Corps”) Motion to Dismiss Plaintiffs' Third Cause of Action Under the Clean Water Act. (R. Doc. 146). The Court has reviewed the briefs submitted by the parties, heard from the parties on oral argument, and has reviewed the applicable facts and law. For the following reasons, IT IS ORDERED that the Corps' Motion is GRANTED, and Plaintiffs' claims under the Clean Water Act are dismissed without prejudice.

I. BACKGROUND

The Inner Harbor Navigation Canal (“Industrial Canal”) is a manmade waterway that provides access from Lake Pontchartrain and the Gulf Intercoastal Waterway to the Mississippi River in New Orleans, Louisiana. See Holy Cross Neighborhood Ass'n v. U.S. Army Corps of Eng'rs, 455 F.Supp.2d 532, 534 (E.D.La.2006). Navigation traffic passes through the Industrial Canal via a lock that was completed in 1923 by the Port of New Orleans. Id. In the River and Harbor Act of 1956, Pub.L. No. 84–455, Congress authorized construction of a replacement lock. The Corps began studying building a new lock and connecting channel in 1960. Holy Cross, 455 F.Supp.2d at 534. In 1997, the Corps issued a nine-volume final Environmental Impact Statement (“EIS”) that analyzes the environmental and economic impacts of several alternatives for the project, and signed a record of decision adopting one of the plans for replacing the lock discussed in the EIS. Id. at 535. This project involves “disposing of approximately three million cubic yards of dredged sediments and soils” into nearby waterbodies and/or using it as backfill for the new lock. Id. “[C]ontaminants, including heavy metals and polycyclic aromatic hydrocarbons (“PAHs”), are present in the Industrial Canal sediments.” Id. at 538–39.

In 2003, Holy Cross Neighborhood Association, Gulf Restoration Network, and Louisiana Environmental Action Network filed a complaint challenging the 1997 EIS and record of decision. (R. Doc. 1)(Case No. 03–370). In 2006, the Court enjoined the Corps from continuing with the project until the agency prepared a supplemental EIS. Holy Cross, 455 F.Supp.2d at 540. The Court based the injunction upon its finding that the 1997 EIS “failed to take a ‘hard look’ at the environmental impacts and consequences of dredging and disposing of the canal's contaminated sediment” as required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. Id. The Court also criticized the EIS for failing to consider “the reasonable dredging and disposal alternatives that the Corps ha[d] recently adopted for maintenance dredging of the same waters,” and failing to “adequately address the risks of flooding and hurricanes in general.” Id. at 539–41.

Pursuant to the Court's 2006 decision, the Corps prepared a supplemental EIS. See (R. Doc. 1)(No. 10–1715)(Compl. ¶ 20). The supplemental EIS was finalized in March 2009, and the record of decision for the project was signed on May 20, 2009. Id. at ¶¶ 20–21. The supplemental EIS adopted a Recommended Plan for its Inner Harbor Navigation Canal Lock Replacement Project. See 2009 Supplemental EIS at 56–62. Each alternative action in the Recommended Plan proposes installing a deep-draft lock. See id. at 25–70.

On January 19, 2010, in response to the Supplemental EIS, Plaintiffs in the present action, Holy Cross Neighborhood Association, Gulf Restoration Network, Louisiana Environmental Action Network, Citizens Against Widening the Industrial Canal, and the Sierra Club, sent a Notice of Violation to the Corps. See (R. Doc. 1, Ex. A)(No. 10–1715). Plaintiffs did not receive a response from the Corps, and on June 10, 2010, filed the present suit against the Corps, alleging the following causes of action: (1) the Corps' action violated the Court's 2006 Order; (2) the Corps' action violated NEPA; and (3) the Corps' action violated the Clean Water Act (“CWA”) citizen-suit provision, 33 U.S.C. § 1365(a)(1). See (R. Doc. 1)(No. 10–1715). After being transferred to this Section of the Court, on June 25, 2010, the Court ordered that Plaintiffs' new suit challenging the supplemental EIS be consolidated with the prior, related case. (R. Doc. 140)(No. 03–370).

II. PRESENT MOTIONA. The Corps' Motion

The Corps filed the present Motion to Dismiss Plaintiffs' Third Cause of Action Under the Clean Water Act pursuant to Federal Rules of Civil Procedure 12(c) and 12(h)(3). (R. Doc. 146)(No. 03–370). According to the Corps, because the Plaintiffs have failed to allege it has violated an “effluent standard or limitation,” there is no waiver of the United States' sovereign immunity pursuant to the CWA's citizen-suit provision, depriving the Court of subject matter jurisdiction. The Corps contends that Plaintiffs' claims against it in its role as a regulator, as opposed to a discharger, are more properly brought pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 704. The Corps alternatively argues that Plaintiffs' CWA claim is unripe since whether the Corps actually discharges relies on whether it will receive future funding to proceed with construction of the project, and the project is not included in the 2010 budget or the proposed 2011 budget.

B. Plaintiffs' Response

Plaintiffs have filed a Response in opposition to the Corps' Motion. (R. Doc. 154). Plaintiffs claim that the Court possesses subject matter jurisdiction over their CWA claims since they are seeking enforcement of the Corps' duties as a discharger, not a regulator or administrator. According to Plaintiffs, the Court may hear a suit against the Corps for its alleged violation of EPA guidelines under the CWA citizen suit provision, just as it may against any non-governmental entity. Plaintiffs distinguish the cases cited by the Corps on the basis that they involve challenges to agencies as regulators of other parties, not enforcement of EPA guidelines against the Corps.

Additionally, Plaintiffs contend that the Clean Water Act confers jurisdiction for their “forward-looking” claim for relief. Plaintiffs cite Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), for the holding that jurisdiction is conferred in a CWA citizen suit so long as there is a good faith allegation of violation of an effluent standard or limitation, and claim they have done so in the present case.

Finally, Plaintiffs argue that their Clean Water Act claim is ripe. Plaintiffs refute that lack of funding for the lock project equates to unripeness. Rather, according to Plaintiffs, because the Corps has violated EPA guidelines by failing to select practicable alternatives while planning to engage in continued construction, their CWA claims are ripe.

C. Corps' Reply

The Corps filed a Reply to the Plaintiffs' Response in opposition. (R. Doc. 163). The Corps refutes the bases put forth by the Plaintiffs' for CWA citizen-suit jurisdiction, contending that, (1) the Corps regulates all discharges of dredged or fill material, including its own, (2) the 404(b)(1) Guidelines do not constitute “effluent standard or limitation,” and (3) the 404(b)(1) Guidelines are not enforceable permit limitations. Additionally, the Corps re-urges its unripeness argument on the basis that it is unable to go forward with the project until it receives further funding and has submitted a Declaration in support thereof.

III. LAW & ANALYSISA. Standard of Review

1. Rule 12(h)(3) Motion

Federal courts are courts of limited jurisdiction and may only exercise that jurisdiction which Congress has granted them. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Pursuant to Federal Rule of Civil Procedure 12(h)(3), a court must dismiss an action if it finds it lacks subject matter jurisdiction. The plaintiff bears the burden of proving subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

It is axiomatic that neither the United States nor any agency or instrumentality thereof may be sued unless Congress has explicitly consented to suit. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). Therefore, to establish jurisdiction over a claim against the United States, a plaintiff must identify a Congressional waiver of immunity or consent to be sued that is clearly and unequivocally expressed. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Any limitations that Congress has seen fit to impose upon its consent must be strictly applied and may not be modified by implication. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983).

2. Rules 12(c), 12(d), & 56

The Corps originally brought its Motion pursuant to Federal Rule of Civil Procedure 12(c) which provides that “[a]fter the pleadings are closed but within such time as not to delay trial, any party may move for judgment on the pleadings.” However, the Court previously denied Plaintiffs' Motion to Strike Portions of Wingate Declaration submitted by the Corps, effectively permitting review of this Declaration in its...