National Parks Conservation v. U.S. Army Corps

• Decision Date: 22 August 2008
• Docket Number: Case No. 06-22557-CIV.
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, INC., and Tropical Audubon Society, Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

574 F.Supp.2d 1314

NATIONAL PARKS CONSERVATION ASSOCIATION, INC., and Tropical Audubon Society, Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Case No. 06-22557-CIV.

United States District Court, S.D. Florida, Miami Division.

August 22, 2008.

COPYRIGHT MATERIAL OMITTED

Paul Joseph Schwiep, Coffey Burlington, Miami, FL, Richard Joseph Grosso, Environmental & Land Use Law Center Inc., Fort Lauderdale, FL, Robert N. Hartsell, Lisa B. Interlandi, Everglades Law Center Inc., N. Palm Beach, FL, Jason Alexander Totoiu, Nova Southeastern Shepard Broad Law Cent., Lake Park, FL, for Plaintiffs.

Rochelle L. Russell, Edward S. Geldermann, Mark A. Brown, Senior Trial Attorney, Wildlife & Marine Resouces Section, U.S. Department of Justice, Washington, DC, for United States.

ORDER OF DISMISSAL WITHOUT PREJUDICE AND CLOSING CASE

ADALBERTO JORDAN, District Judge.

For the reasons which follow, this case is DISMISSED WITHOUT PREJUDICE on mootness grounds. The claims in the plaintiffs' third amended complaint [D.E. 76] have been rendered moot by the June 11, 2007, expiration of the challenged permit in this action. This case no longer presents a live case or controversy for which effective relief can be granted.

I. THE PRIOR LITIGATION

The plaintiffs, two environmental organizations, challenge the decision of the United States Army Corps of Engineers to extend a Clean Water Act permit (a § 404 permit) to fill wetlands in southern Miami-Dade County. The plaintiffs allege that the Corps' extension and modification of the § 404 permit, as well as the opinion of the Fish and Wildlife Service (FWS) issued in conjunction with the extension, violated the Clean Water Act, 33 U.S.C. § 1251 et seq., the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act, 5 U.S.C. § 706. Among other things, the plaintiffs seek a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Before considering the various claims, I set out a detailed discussion of the factual background and procedural history of this dispute, which is before me for the second time.

In 1996, Atlantic Civil, Inc. (ACI) applied for a permit under § 404 of the Clean Water Act, which authorizes the Secretary of the Army, acting through the Corps, to regulate discharges of dredged and fill material into the navigable waters through the issuance of permits. See 33 U.S.C. § 1344(a). On April 26, 2001, the Corps issued ACI a § 404 permit, Permit No. 1995-06797, which was scheduled to expire on April 26, 2006. On March 14, 2005, ACI requested a 5-year extension of its permit. The Corps, treating the request as a new major modification because the circumstances surrounding the original permit had changed, suspended the permit on August 18, 2005. Following an August 29, 2005, meeting with ACI, the Corps partially reinstated ACI's permit on September 8, 2005. On November 17, 2005, ACI requested a 120-day extension of its permit so that the permit would expire on August 21, 2006. The Corps granted ACI's request and thereafter reinstated ACI's permit in full on December 20, 2005.

On January 31, 2006, the plaintiffs filed a two-count complaint against the Corps, seeking declaratory and injunctive relief. Count I alleged that the Corps' reinstatement and 120-day extension of agricultural fill Permit No. 1995-06797 violated the CWA and the APA. Count II alleged that these same actions violated the NEPA and the APA. See Nat'l Parks Conservation Ass'n v. United States Army Corps of Eng'rs., Case No. 06-20256-Civ-Jordan (Nat'l Parks I). Specifically, the plaintiffs alleged that the Corps failed to provide adequate notice and comment regarding its reinstatement of ACI's fill permit, hold a public hearing, explain the grounds for its reinstatement and extension decisions, disclose or discuss the effects of reinstatement and extension, explain how the reinstatement and extension were consistent with the public interest, and/or analyze the intended change in use of the property at the time the reinstatement and extension decisions were made. The plaintiffs also argued that the Corps' actions were arbitrary and capricious. The plaintiffs sought declaratory and injunctive relief, namely, revocation of Permit No. 1995-06797, cessation of any further filling under authority of the permit, and removal of all fill placed pursuant to that permit, until a valid NEPA analysis was completed.

On March 2, 2006, the plaintiffs moved for a preliminary injunction. The parties agreed to stay consideration of the preliminary injunction motion and resolve the matter via cross-motions for summary judgment. After a hearing on the motion, I issued an order on August 15, 2006, granting the defendants' motion for summary judgment. I found that (1) the Corps acted within its authority under the CWA in reinstating the permit; (2) the permit reinstatement did not trigger the NEPA procedural requirements or review under the CWA; (3) the Corps was not required to apply full NEPA review to the extension request; (4) the Corps did not act arbitrarily or capriciously in granting the extension; and (5) the Corps was not required to institute consultation with the FWS under the ESA with respect to its decisions to reinstate the permit and extend it for 120 days. See Nat'l Parks Conservation Ass'n v. United States Army Corps of Eng'rs., 446 F.Supp.2d 1322, 1343 (S.D.Fla.2006) (Nat'l Parks I).

II. THIS CASE

ACI had filed a request for a second extension of the permit on March 14, 2006. On August 21, 2006, the FWS completed a biological opinion on ACI's 5-year permit extension request. The Corps issued the second permit extension on August 25, 2006, and relied on the biological opinion in support of the extension. On September 21, 2006, at the request of ACI, the Corps issued a modification to the extension which set the permit's expiration date as June 11, 2007.

On October 17, 2006, the plaintiffs filed this lawsuit, challenging the issuance of the Corps' permit extension, the subsequent modification, and the FWS biological opinion. The plaintiffs allege that the Corps violated the CWA, NEPA, and APA when it extended and modified the permit. The plaintiffs also allege that the Corps violated the ESA by relying on the FWS biological opinion in making its permitting decision. The plaintiffs seek declaratory and injunctive relief, namely (1) a declaration that the Corps' decisions to extend and modify the permit violated of the CWA, NEPA, and APA; (2) a declaration that the FWS biological opinion is arbitrary and capricious, contrary to the consultation requirements of ESA § 7(a)(2), and in violation of the APA; (3) a declaration that the Corps' reliance on the FWS biological opinion is arbitrary and capricious; (4) a judgment setting aside the Corps' decisions to extend and modify the permit; (5) an injunction prohibiting the Corps from authorizing any further action under the permit until the Corps fully complies with the requirements of the CWA, NEPA, APA, and ESA; and (6) an order directing the FWS to withdraw its biological opinion and prepare an opinion that complies with the mandates of the ESA.

On January 11, 2007, the Corps suspended the § 404 permit after receiving ACI's application to change the project's purpose from agriculture to rock mining and residential development. The suspension prohibited ACI from conducting any dredge or fill activities authorized by the August 2006 extension. On January 12, 2007, the Corps moved for voluntary remand and a stay of the proceedings to consider its August 2006 extension and September 2006 modification of the permit. I granted the motion and directed the parties to file joint status reports. The parties filed joint status reports in March, May, and July of 2007. During the stay, on March 1, 2007, ACI formally withdrew its "Development of Regional Impact" application, in which it had sought approval to construct residential and commercial structures on the permitted site. ACI also withdrew from the Corps its application to change the purpose of the permit to residential development and requested that the Corps reinstate the permit for agricultural purposes. On March 2, 2007, ACI submitted a proposal to modify the permit to authorize filling for agricultural purposes and rock mining. ACI subsequently submitted a separate permit application for the rock mining projects, which is still under review by the Corps and the FWS.

On August 10, 2007, the Corps reinstated and modified ACI's permit, which authorized the filling of wetlands in a limited area for agricultural purposes and prohibited filling in areas subject to the still-pending application for rock mining. The plaintiffs filed their third amended complaint on March 10, 2008, and moved for summary judgment on March 14, 2008.

On April 4, 2008, the Corps learned that the ACI permit had expired on June 11, 2007, without a grant of extension. On April 14, 2008, the Corps issued a "Notice of Permit Expiration," which instructed ACI to discontinue any fill activity previously authorized under the expired permit. The notice also informed ACI that a new § 404 permit would be required for any dredge and fill activity that occurred after June 11, 2007. It was not until April 14, 2008, that the defendants informed me that the permit had expired and requested a stay of the summary judgment briefing schedule.¹ I requested supplemental briefing on mootness, and subsequently heard oral arguments from the parties. I now conclude that the plaintiffs' claims are moot.

III. LEGAL STANDARD

Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of "cases" and "controversies." See U.S. CONST. art. III, § 2, cl. 1. A case is moot when the issues no longer involve a live case or controversy with respect to which the court can provide meaningful...