MS River Basin Alli v. Westphal
| Decision Date | 23 October 2000 |
| Docket Number | No. 99-31235,YAZOO-MISSISSIPPI,99-31235 |
| Parties | (5th Cir. 2000) MISSISSIPPI RIVER BASIN ALLIANCE; NATIONAL WILDLIFE FEDERATION; AMERICAN RIVERS; ARKANSAS WILDLIFE FEDERATION; MISSISSIPPI WILDLIFE FEDERATION; SIERRA CLUB, THROUGH ITS DELTA AND MISSISSIPPI CHAPTERS; and LOUISIANA WILDLIFE FEDERATION, Plaintiffs-Appellants, v. JOSEPH W. WESTPHAL, ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS; LT. GEN. JOE N. BALLARD, CHIEF OF ENGINEERS; MAJ. GEN. PHILLIP R. ANDERSON, COMMANDER, MISSISSIPPI VALLEY DIVISION, U.S. ARMY CORPS OF ENGINEERS; AND COL. ROBERT CREAR, COMMANDER, VICKSBURG DISTRICT, U.S. ARMY CORPS OF ENGINEERS, Defendants-Appellees, and BOARD OF MISSISSIPPI LEVEE COMMISSIONERS; BOARD OF LEVEE COMMISSIONERS FOR THEDELTA, Intervenors-Appellees |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Eastern District of Louisiana
Before KING, Chief Judge, and REYNALDO G. GARZA, and PARKER, Circuit Judges.
BACKGROUND
On October 2, 1996, a coalition of environmental and wildlife conservation groups ("Conservation Groups") filed suit seeking a declaratory judgment and injunctive relief to prevent the United States Army Corps of Engineers ("Corps") from proceeding with a flood control project known as the Mississippi River Mainline Levee Enlargement and Berm Construction Project ("Project"). The Project involves 1,610 miles of authorized levees and berms and associated seepage control measures along the Mississippi River, including the levees, all lands between the levees, the river, and 3,000 feet landside of the levees on both sides of the river. Completion of the project will require construction of 128 separate components or "work items" in seven states: 49 in Louisiana, 40 in Mississippi, 17 in Arkansas, 13 in Missouri, 6 in Illinois, 2 in Tennessee, and 1 in Kentucky. The Project, part of the Mississippi River and Tributaries Project which Congress mandated under the Mississippi River Flood Control Act of 1928, is estimated to require 33 years for completion.
The Project's Environmental Impact Statement was initiated in 1974 and finalized in April of 1976. The Conservation Groups challenged the Corps's decision to proceed with the Project, alleging that the action violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 3421-4379d, because the Corps neglected to prepare a Supplemental Environmental Impact Statement ("SEIS") on the Project in light of: (1) new information and new circumstances that had arisen over the past two decades and (2) changes that were made to the Project since the preparation of the original EIS.
Once the Complaint was filed, the Board of Mississippi Levee Commissioners and the Board of Levee Commissioners for the Yazoo-Mississippi Delta ("Levee Boards") moved for leave to intervene as defendants, which the district court granted.1 The Levee Groups, Corps and Conservation Groups entered into settlement negotiations. Those negotiations culminated in a Consent Decree that was entered by the district court on June 25, 1997. The Consent Decree obligated the Corps to prepare a SEIS on the Project that satisfied all of NEPA's requirements. In July 1998, after distributing a draft SEIS for public comment and receiving extensive comments and critiques from the Conservation Groups on the draft, the Corps issued the final impact statement for the Project, which was approximately 1,700 pages in length. The Conservation Groups re-submitted comments raising legal and factual concerns. On October 5, 1998, the Corps signed the Record of Decision for the Project, approving the plan recommended in the final SEIS.
The SEIS identifies and discusses four alternative plans. First, under the Nonstructural option, in the event of floods, the government would simply seek to reduce and reimburse for existing damages. Second, under the Landside Borrow choice, the levees would be raised, strengthened, maintained and protected from seepage through continuing construction, using earth obtained solely from the landside of the levee.2 Third, under the Traditional Method, as in the Landside Borrow alternative, the levees' construction would be commenced, however, the building material would be obtained primarily from the riverside locations closest to the construction site. Fourth, under the Environmental Design or Avoid and Minimize plan, the Corps would first obtain landside cropland for borrow material from willing sellers, but if such land were not reasonably available, riverside land could be used.
The Conservation Groups preferred the Landside Borrow alternative. The Corps selected, however, the Avoid and Minimize alternative as the plan to accomplish the objectives of the Project at an additional cost of 33 million dollars in order to reduce the impact to bottomland hardwoods. To obtain construction material for the levees and landside seepage berms, the Corps will use the soil from bottomland hardwood wetlands and other wetlands.3
According to the SEIS, the selected alternative method minimizes, to the maximum extent practicable, the impact of individual work items by requiring detailed surveys and subsurface information evaluations to reduce the effect on bottomland hardwood wetlands. The plan involves 7,328 acres of wetlands (3,691 acres of forested wetlands and 3,637 acres of farmed wetlands). There are 5,166 acres of affected bottomland hardwood wetlands. The SEIS recommends reforesting 5,863 acres of frequently flooded agricultural land not directly impacted by borrow excavation to mitigate wetland, terrestrial, and waterfowl resource impacts. The SEIS maintains that a net gain of over 6,700 acres of high quality riverside aquatic habitat will be created by constructing borrow pits. Three thousand acres of riverside borrow pits will be designed for drainage and reforestation of high quality bottomland hardwoods. The SEIS concludes that there will be a net increase in terrestrial, wetland, waterfowl, and aquatic resource valuesand that, when the proposed action is considered in conjunction with other activities, no cumulative negative environmental impact results on an ecosystem, landscape, or regional scale.
The Conservation Groups contend that potential mitigation lands were not identified in the SEIS and that, although the Record of Decision adopts the recommended number of mitigation acres, the Project destroys vast areas of wetlands where the levee or berms will actually be located and where soil will be dug up to be used as building material for the levees and landside seepage berms. The Conservation Groups allege that the bottomland hardwood wetlands are among the Nation's most important and most depleted, with some 80 percent of the original wetlands already having been lost. In addition, the Groups note that the wetlands support many wildlife species, help clean chemical pollutants from the river water, ease erosion from nearby farmlands, and recharge ground water supplies.
The Conservation Groups contend that the SEIS is misleading and inaccurate because it fails to provide sufficient information upon which the Corps could make a rational decision concerning the manner in which to proceed with the Project. The dispute is centered on the Corps's decisions regarding the location and source of the material that will be used to enlarge portions of the existing levee system. The Conservation Groups want the material to be obtained from the landside of the levees, but the Corps decided to extract it from the riverside of the levees.
The Corps maintains that it complied with the terms of the consent decree by producing a SEIS that: 1) included comments from other federal agencies; 2) was completed within 24 months of the date of the entry of the consent decree; 3) analyzed site specific techniques as an alternative to achieve project objectives; 4) analyzed direct, indirect, and cumulative impacts of the Project; and 5) analyzed mitigation.
On December 4, 1998, the Conservation Groups challenged the substantive adequacy of the SEIS under the auspices of the Consent Decree. On September 8, 1999, the district court entered judgment denying the Conservation Groups' Motion to Enforce Consent Decree and for Summary Judgment and granting the Corps's and Intervenors' Motions for Summary Judgment. This appeal followed.
Courts of Appeals review summary judgments de novo, applying the same standard as the district courts. Fed.R.Civ.P. 56. The moving party is entitled to judgment as a matter of law when the pleadings, answers to interrogatories, admissions and affidavits on file indicate no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). If the burden at trial rests on the non-movant, the movant must merely demonstrate an absence of evidentiary support in the record for the non-movant's case. See id.
This Court will consider the evidence in the light most favorable to the non-movant, yet the non-movant may not rely on mere allegations in the pleadings; rather, the non-movant must respond to the motion for summary judgment by setting forth particular facts indicating that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c).
This Court's role in reviewing the adequacy of the SEIS is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Section 706(2) provides that a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found...
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