PORT OF JACKSONVILLE MARITIME, ETC. v. Hayes, 79-444-Civ.-J-B.

• Decision Date: 14 January 1980
• Docket Number: No. 79-444-Civ.-J-B.,79-444-Civ.-J-B.
• Citation: 485 F. Supp. 741
• Parties: PORT OF JACKSONVILLE MARITIME AD HOC COMMITTEE, INC., Plaintiff, v. Admiral J. B. HAYES, Commandant, United States Coast Guard, Captain R. D. Hodges, Chief, Bridge Division, United States Coast Guard, Rear Admiral B. N. Stabile, Commander, Seventh District, United States Coast Guard, and the Jacksonville Transportation Authority, Defendants.
• Court: U.S. District Court — Middle District of Florida

485 F. Supp. 741

PORT OF JACKSONVILLE MARITIME AD HOC COMMITTEE, INC., Plaintiff, v. Admiral J. B. HAYES, Commandant, United States Coast Guard, Captain R. D. Hodges, Chief, Bridge Division, United States Coast Guard, Rear Admiral B. N. Stabile, Commander, Seventh District, United States Coast Guard, and the Jacksonville Transportation Authority, Defendants.

No. 79-444-Civ.-J-B.

United States District Court, M. D. Florida, Jacksonville Division.

January 14, 1980.

Thomas M. Baumer, Guy O. Farmer, II, Jacksonville, Fla., for plaintiff.

John E. Mathews, Jr., James E. Cobb, Jack W. Shaw, Jr., Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for defendants.

OPINION

SUSAN H. BLACK, District Judge.

I. Factual Background

Plaintiff in this action, Port of Jacksonville Maritime Ad Hoc Committee, Inc. ("the Committee"), seeks review of the issuance by defendant Admiral J. B. Hayes, Commandant, United States Coast Guard, ("Commandant"), of Bridge Permit 90-79 which authorizes defendant Jacksonville Transportation Authority ("JTA") to construct a bridge across Mill Cove and the St. Johns River at the Dame Point turn in Jacksonville, Florida ("Dame Point Bridge"). The bridge is to be part of the southeastern extension of State Road 9A which is to provide a high speed, limited access by-pass around the eastern edge of the core city of Jacksonville. The case is presently before the Court on the parties' cross motions for summary judgment.

This controversy is not new to the City of Jacksonville. Initial application for the permit was made on July 26, 1974, by Sverdrup and Parcel and Associates, Inc., consultants to JTA, and was completed on December 27, 1974. Public notice soliciting comments on the project was issued on January 22, 1975. The only response to this notice was by the Army Corps of Engineers which stated that the bridge would interfere with a proposed widened navigational channel. In response to the Corps' objections, JTA submitted revised plans in April, 1975, shifting the bridge alignment approximately 300 feet to the east. Though this shift satisfied the objections of the Corps of Engineers, certain maritime interests continued to object to the horizontal clearance of the bridge and the proposed location of the bridge piers. In response to these objections, JTA shifted the proposed bridge approximately 130 feet to the south, placing the south pier in approximately five feet of water. A revised application was submitted on March 3, 1978.

Once again the Coast Guard issued notice requesting public comments. Navigational interests, including the U.S. Navy, voiced objections to the vertical clearance of the bridge and to the placement of the piers. In response to these objections, JTA again submitted revised plans increasing the vertical clearance to 160.9 feet above mean high water ("MHW") at the center of the span and to 152.7 feet and 157.0 feet at the north and south edges of the channel respectively.

On August 11, 1978, the Coast Guard issued notice soliciting public comment on the latest revised plans. Numerous comments were received in response to this notice, and a public hearing was held on November 6 and 8, 1978. On July 2, 1979, defendant Stabile, Commander of the Seventh Coast Guard District, sent a report of his investigation, including his Findings of Fact, to Coast Guard Headquarters. He recommended that the permit be granted subject to certain conditions.

Thereafter, N. E. Mpras, Chief, Bridge Permits Division, prepared a Decision Analysis. He found that the record supported the District Commander's recommendation and recommended that the permit be issued. On July 11, 1979, Mpras submitted his Decision Analysis, and on the same day the permit was issued by defendant Hodges, Chief, Bridge Division, by direction of the Commandant.

Plaintiff contends that the Commandant's decision must be invalidated on three grounds. It initially asserts that the permit is invalid because the Commandant failed to articulate the basis for his decision and the District Commander failed to make specific findings required by Coast Guard regulations. 33 C.F.R. § 115.60(d). It also asserts that the Commandant's decision was arbitrary and capricious. If the decision is not arbitrary and capricious, plaintiff asserts that it is invalid because the Coast Guard failed to conduct an independent vulnerability or other risk assessment study.

II. The Commandant's Failure to Make Adequate Findings.

Plaintiff contends that the permit is invalid because the Commandant failed to articulate the basis for his decision. It relies principally upon Keenan Port of Dardanelle v. Siler, No. LR-C-77-292 (E.D.Ark. 1979), in which the court required the Commandant to issue an affidavit specifically adopting the Decision Analysis as the basis of his decision. However, Citizens to Preserve Overton Park, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1972), makes it clear that such formal findings and conclusions are not always required. When the nature of the agency action is unambiguous, the Court should look to the administrative record. In the present case two official Coast Guard documents unambiguously state the reasoning of the Coast Guard in approving the permit; the District Commander's Findings of Fact and the Decision Analysis. In Port of Dardanelle, supra, these two reports conflicted, presenting the Court with an ambiguous record. Thus, the Court was required to insist that the Commandant, on the record, adopt the Decision Analysis as the basis for his decision.

In the present case the District Commander's Findings of Fact and the Decision Analysis are consistent in recommending that the permit be granted. Thus, the record is unambiguous, and the Court need not speculate as to the basis for the Commandant's decision. The Court shall base its analysis of the Commandant's decision to issue the permit on the reasoning of these documents and the full administrative record before the Commandant when he made his decision. If they rationally support the issuing of the permit, the decision of the Commandant must be upheld.

Plaintiff also argues that the permit should be invalidated because the District Commander failed to make specific findings required by Coast Guard regulations. 33 C.F.R. 115.60(d). Plaintiff alleges that the District Commander failed to make findings regarding the use of tows on the St. Johns River.¹ It claims that the Commandant could not adequately evaluate the bridge's horizontal clearance without such a finding.

An agency's failure to follow its own regulations can be grounds for invalidating its action. U. S. v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). However, this is not necessarily the case. If the agency's omission has not prejudiced the plaintiff, its action may be upheld. Pacific Molasses Co. v. FTC, 356 F.2d 386 (5th Cir. 1966); FTC v. Foucha, 356 F.Supp. 21 (N.D.Ala.1973).

In the present case plaintiff has not been prejudiced by the District Commander's failure to make specific findings regarding tows. The record clearly indicates that tows were considered in determining the sufficiency of the horizontal clearance. R. IV, 8; R. I, 43, 44; R. XII A, 99-106. The study evaluating horizontal clearance and pier position included a consideration of the bridge's effect on tows as well as ships. R. XIII G, 121-147. As noted by the Supreme Court in Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 419, 91 S.Ct. at 825, there is no need to remand to the agency for findings when "there is an administrative record that allows the full, prompt review of the Secretary's Commandant's action that is sought without additional delay which would result from having a remand to the Secretary Commandant." No useful purpose would be served by further delaying this project when it is clear from the record that the Commandant considered the point. This is particularly true when, as stated by counsel for JTA at the September 12, 1979, status hearing, costs of the project can escalate at the rate of $100,000 a day.

The Court has before it an administrative record which will allow a complete review of the Commandant's decision. Thus, the Court will proceed to a full and prompt review of that decision.

III. The Rationality of the Decision.

A. Standard of Review.

The initial question in reviewing the merits of the Commandant's decision is determining the appropriate standard of review. All parties agree that the decision should be reviewed under § 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A):

The reviewing court shall —

. . . . .

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

. . . . .

The content of this standard was discussed in Citizens to Preserve Overton Park v. Volpe, supra. It is clear from Volpe that review should be based on the full administrative record before the decision maker at the time his decision was made. Id. 401 U.S. at 420, 91 S.Ct. 814. The Court must determine whether, based on the record, the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Id. at 416, 91 S.Ct. 814. See also, Bowman Trans. v. Arkansas-Best Freight, 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). At oral argument, plaintiff concurred with the articulation of this standard offered by the Coast Guard defendants in their Response To Plaintiff's Motion and Brief Seeking Summary Judgment.

This Court must review the entire administrative record, and if, from that exhaustive review, it can discern a rational basis for the agency decision, even though another decision is possible, and all reasonable factors relevant to a reasonable decision are included in that record, the agency decision must be

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