National Ecological Foundation v. Alexander
| Decision Date | 03 August 2007 |
| Docket Number | No. 06-5700.,06-5700. |
| Citation | 496 F.3d 466 |
| Parties | NATIONAL ECOLOGICAL FOUNDATION, et al., Plaintiffs-Appellees, v. Clifford ALEXANDER, Secretary of the Army, and U.S. Environmental Protection Agency, Defendants-Appellees, Tennessee Department of Conservation, Tennessee Department of Public Health, and Obion-Forked Deer River Basin Authority, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sohnia W. Hong, Office of the Attorney General, Nashville, Tennessee, Barry Turner, Office of the Attorney General, Environmental Division, Nashville, Tennessee, for Appellants. William Siler, Assistant United States Attorney, Memphis, Tennessee, John C. Hayworth, Robert J. Walker, John L. Farringer IV, Walker, Tipps & Malone, Nashville, Tennessee, for Appellees.
Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. SUTTON, J. (p. ___), delivered a separate opinion concurring in the judgment.
The Stokes Creek canal is a channelized stream in western Tennessee. Defendants, the West Tennessee River Basin Authority (the "WTRBA") and the Tennessee Department of Environment and Conservation (collectively the "State"), wish to transform 1.5 miles of this stream into a 2.4 mile "meandering channel," which, according to the State, would mimic the natural conditions of a stream and provide significant environmental benefits. This project is known as the Stokes Creek Restoration Project (the "Restoration Project"). The State intends to implement the Restoration Project independently of the Army Corps of Engineers (the "Corps"), who is primarily responsible for the West Tennessee Tributaries Project, a federal project to improve rivers and other waterways in the same general geographic area.
On October 3, 2005, the State filed a motion to clarify its obligations under a 1985 consent decree known as the "Agreed Order," seeking a declaration from the district court that the Agreed Order did not prohibit the State from implementing the Restoration Project. Plaintiff National Ecological Foundation and Intervenors National Wildlife Federation and Tennessee Wildlife Federation, f/k/a Tennessee Conservation League (collectively "NEF") opposed the motion on the ground that the Agreed Order prohibited the State from undertaking the Restoration Project. The district court denied the State's motion for clarification; the State subsequently filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court also denied. The State then brought this appeal challenging the district court's denial of its motion to alter or amend judgment. For the reasons stated below, we REVERSE the district court's denial of the State's motion for clarification and REMAND with instructions that the district court grant the State's motion for clarification consistent with this opinion.
The roots of this case date back to the Flood Control Act of 1948, Pub.L. No. 80-858, § 203, 62 Stat. 1171, 1175, 1178. By this Act, Congress "adopted and authorized" multiple "works of improvement for the benefit of navigation and the control of destructive floodwaters and other purposes," including a "project for improvement of the Mississippi River below Cape Girardeau with respect to the West Tennessee tributaries." Id. The Corps was primarily responsible for implementing these improvements. Although work was authorized in 1948, it did not begin until the early 1960s. See Akers v. Resor, 339 F.Supp. 1375, 1378 (W.D.Tenn.1972). The West Tennessee Tributaries Project ("WTT Project"), as authorized by Congress and planned by the Corps, was to consist of "224.9 miles of channel improvement." J.A. at 134.
In 1970, a group of plaintiffs, including J. Clark Akers, brought an action seeking injunctive relief, claiming that the WTT Project violated various federal statutes. Akers, 339 F.Supp. at 1376-78. As of March, 1971, the Corps was circulating a plan, eventually to be submitted to Congress, containing a proposal to acquire "mitigation lands."1 In 1974, Congress enacted the Water Resources Development Act of 1974, Pub.L. No. 93-251, § 3, 88 Stat. 12, 14, which authorized the Corps "to acquire thirty-two thousand acres of land for the mitigation of fish and wildlife resources, recreation, and environmental purposes" in connection with the WTT Project. In January of 1978, the Akers district court enjoined the WTT Project, which was approximately 32% complete at the time. Akers v. Resor, 443 F.Supp. 1355, 1357, 1361 (W.D.Tenn.1978). Akers held that the Corps had failed to comply with the National Environmental Policy Act of 1969, Pub.L. 91-190, 83 Stat. 852 (codified as amended as 42 U.S.C. §§ 4321-4370f). Id. at 1361.
On September 28, 1978, the National Ecological Foundation brought this action against the Corps, the United States Environmental Protection Agency, the Governor of Tennessee, and several Tennessee agencies, including the Obion-Forked Deer Basin Authority (the "Basin Authority"), which is the predecessor agency to the WTRBA. The complaint identified the Basin Authority as "an agency of the State of Tennessee and [it] is the local sponsoring agency responsible for maintenance of certain projects by the Corps." J.A. at 9. The complaint alleged that the Corps, in violation of various federal laws, was allowing the Basin Authority to "perform[] activities on rivers and streams without the necessary permits and in violation of applicable laws and regulations." J.A. at 11. The complaint contended that this activity would irreparably destroy the affected area's wetlands. The National Ecological Foundation asked for various types of injunctive relief, including that the Corps issue a cease and desist order to all persons doing work in the Obion and Forked Deer rivers and the wetlands surrounding those rivers, that the Corps process permit requests according to law, and that the Basin Authority be enjoined from further work in the area of the Obion and Forked Deer rivers until it had obeyed the district court's injunctions concerning unlawful operations.
The parties settled this lawsuit by entering into a consent decree on May 13, 1985, the same day that the lawsuit in Akers was settled. NEF characterizes these settlements as "a negotiated overall scheme for river improvement projects in the Obion and Forked Deer River Basin." NEF's Br. at 18. The consent decree in Akers (the "Akers Order") required the Corps to acquire 32,000 acres of mitigation lands, specified the boundaries from within which those mitigation lands should be acquired, and agreed upon a general time frame for acquiring mitigation lands as the WTT Project progressed. The consent decree in this case, known as the "Agreed Order," is at the heart of this dispute and is discussed in detail below. Generally, the Agreed Order imposed restrictions upon the Basin Authority with respect to its work in the basin of the Obion and Forked Deer rivers.
After the Akers Order and Agreed Order were in force, the Corps attempted to resume work on the WTT Project. However, the Corps' inability to obtain a permit required by Tennessee law prevented the WTT Project from moving forward. In April of 1990, after eventually acquiring a total of 13,527 acres of mitigation lands, the Corps began to undertake measures to shut down the WTT Project in an orderly fashion. In 1992, however, then-Governor of Tennessee Ned McWherter requested that the Corps reactivate the WTT Project. This led to the formation of the West Tennessee Tributaries Steering Committee (the "Steering Committee"), which included representatives of federal, state, and local agencies, and representatives of private interests. The Steering Committee produced a "Mission Plan for Reformulation of the West Tennessee Tributaries Project." J.A. at 148. The Steering Committee's "conceptual plans for reformulation of the WTT [Project] . . . include[d] project features designed to return more natural functions to significant reaches of the river floodplains." J.A. at 156. Meandering river channels were predicted to "help to remove artificially ponded water on the floodplain and provide vastly improved aquatic and terrestrial habitats."2 J.A. at 156. "To demonstrate how the river restoration concept would be implemented," a plan was developed for two bodies of water, including the "Stokes Creek subwatershed." J.A. at 156-57. These projects were known as "demonstration projects," and the project involving Stokes Creek was termed the "Stokes Creek Restoration Demonstration." J.A. at 157, 185. These demonstration projects were intended to provide "an opportunity to research and document the benefits of levee removals." J.A. at 185-86. "[The] Stokes Creek restoration includes channel restoration, levee removal, wetlands restoration, channel stabilization, riparian buffer strips, and a bridge/embankment modification." J.A. at 157-58. The project's anticipated benefits included flood relief and better habitat for aquatic wildlife.
In June of 1996, the Corps issued a West Tennessee Tributaries Project Limited Reevaluation Report (the "Reevaluation"). The Reevaluation considered the Stokes Creek Restoration Demonstration, and concluded that the project captured tangible and intangible benefits. The Reevaluation also examined the issue of whether the Steering Committee's plan which included the Stokes Creek Restoration Demonstration, could be implemented under the Corps' existing authority. The Reevaluation concluded that "the two demonstration projects formulated in the State Mission Plan have Federal interest and can be implemented under existing authority at the approval of the President of the Mississippi River Commission as minor modifications to the Authorized West Tennessee Tributaries Project." J.A. at 265.
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