Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers

Decision Date11 July 1996
Docket NumberNo. 96-8094,96-8094
Citation87 F.3d 1242
PartiesPRESERVE ENDANGERED AREAS OF COBB'S HISTORY, INC., Roger Peaster, Heidi Peaster, Johnny Plunkett, Bury Plunkett, John Mowell and Marie Mowell, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, Togo D. West, Secretary of the Army, Wayne M. Boy, Colonel, District Engineer, Savannah District Corps of Engineers, Necholus Ogden, Chief, Regulatory Branch, Savannah District Corps of Engineers, United States Environmental Protection Agency, Carol M. Browner, Administrator, John H. Hankinson, Regional Administrator, and Cobb County, Georgia, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Robert B. Remar, Susan Marie Garrett, Kirwan, Parks, Chesin & Remar, Atlanta, GA, for Appellants.

Fred D. Bentley, Jr., Bentley, Bentley & Bentley, Marietta, GA, for Cobb County Defendants.

L. Elinor Colbourn, U.S. Dept. of Justice, Appellate Section, Washington, DC, for U.S. Army Corps, et al.

Appeal from the United States District Court for the Northern District of Georgia.

Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit Judges.

FAY, Senior Circuit Judge:

The plaintiffs in this action challenged a proposed highway construction project in Cobb County, Georgia. They alleged violations of the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, and the National Historic Preservation Act. In extremely well-reasoned orders, the District Court dismissed certain claims and granted the defendants summary judgment on all the remaining claims. We affirm.

I. BACKGROUND

Preserve Endangered Areas of Cobb's History, Inc. (P.E.A.C.H.) and various individuals brought suit to prevent the construction of a 4.75 mile highway in Cobb County Georgia. The highway would run through a Historic District in Cobb County and would impact approximately 3.77 acres of wetlands. The County developed a mitigation plan in order to minimize the possible harmful effects of the highway. The plan included the preservation of 19.7 acres of existing wetlands and the restoration of at least 7.8 acres of previously cleared and drained floodplain or wetland area. Cobb County also executed a Memorandum of Agreement on Historic Preservation in order to mitigate the effects on the historic character of the region. The Agreement requires the county to take specific measures. These measures involve limiting access to the road from the historic district, bridging certain roads to minimize the adverse impact on historic properties, aesthetic signage restrictions, site stabilization, archeological data recovery, the stabilization of the Woolen Mills historic structure, and a 70 acre historic heritage park that should minimize future development in and near the historic district.

In April of 1995 the Army Corps of Engineers issued a permit under Section 404 of the Clean Water Act (33 U.S.C. 1344(a)) to Cobb County, authorizing it to impact the 3.77 acres of wetlands. The permit was conditioned on compliance with the Memorandum of Agreement on Historic Preservation and the wetland mitigation plan.

Also in April 1995, the Army Corps District Engineer issued an environmental assessment for the project. The assessment included a finding of no significant impact and concluded that an Environmental Impact Statement would not be required.

The plaintiffs filed suit against Cobb County, the Army Corps of Engineers, and the Environmental Protection Agency. The plaintiffs alleged that the defendants 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 National Historic Preservation Act (16 U.S.C. § 470).

The District Court entered a protective order prohibiting the plaintiffs from engaging in any discovery and limiting the court's review to the administrative record. The District Court granted the defendants' motions to dismiss the claims brought under the citizen suit provisions of the Clean Water Act, ruling that neither the EPA nor the Army Corps of Engineers was subject to suit in this case. Based on the administrative record, the District Court granted the defendants' motions for summary judgment. The plaintiffs appealed.

II. STANDARD OF REVIEW

The District Court's entry of a protective order must be reviewed for abuse of discretion. See Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir.1992).

The court's dismissal of the claims under the citizen suit provisions of the Clean Water Act presents a legal issue, as does the decision to limit review to the administrative record. We review questions of law de novo. See Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir.1995).

The District Court's order of summary judgment must also be reviewed de novo. Great Lakes Dredge & Dock Co. v. Tanker, 957 F.2d 1575, 1578 (11th Cir.), cert. denied, 506 U.S. 981, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992). Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the light most favorable to the non-moving party. Augusta Iron and Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988). However, even in the context of summary judgment, an agency action is entitled to great deference. Under the Administrative Procedure Act, a court shall set aside an action of an administrative agency where it is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). The court shall not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971).

III. ANALYSIS
A. The District Court did not err when it confined its review to the administrative record and prohibited all discovery.

The focal point for judicial review of an administrative agency's action should be the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The role of the court is not to conduct its own investigation and substitute its own judgment for the administrative agency's decision. Volpe, 401 U.S. at 416, 91 S.Ct. at 823-24. Rather, the "task of the reviewing court is to apply the appropriate ... standard of review ... to the agency decision based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985).

If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.... The factfinding capacity of the district court is thus typically unnecessary.... [The court is] to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.

Id. at 744, 105 S.Ct. at 1607.

Thus while certain circumstances may justify going beyond the administrative record, 1 a court conducting a judicial review is not "generally empowered" to do so. In the instant case, we find nothing that would necessitate expanding the court's review beyond the administrative record. 2 The record itself adequately explains the agency's decision and shows that it weighed the relevant factors. 3 The District Court did not err in limiting its review to the administrative record and so did not abuse its discretion by granting a protective order prohibiting any discovery.

B. The District Court did not err in granting summary judgment.

Under the Administrative Procedure Act, a court shall set aside an action of an administrative agency only where it is arbitrary, capricious, or an abuse of discretion. 5 U.S.C. § 706(2)(A). The court shall not substitute its judgment for that of the agency. Volpe, 401 U.S. at 416, 91 S.Ct. at 823-24. Plaintiffs contend that the Army Corps acted arbitrarily and capriciously when it: 1) concluded that the project was not unlawfully segmented, 2) issued a Finding of No Significant Impact and so did not prepare an Environmental Impact Statement, and 3) issued a Section 404 permit.

i. The Army Corps of Engineers was not arbitrary and capricious in finding that the project was not unlawfully segmented.

The plaintiffs contend that the defendants unlawfully avoided the legal requirement to prepare an Environmental Impact Statement for all major federal actions by analyzing this project alone, and not with the other related projects in Cobb County. It is true that the Corps cannot "evade [its] responsibilities" under the National Environmental Policy Act by "artificially dividing a major federal action into smaller components, each without a 'significant' impact." Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 68 (D.C.Cir.1987). However, just because the project at issue connects existing highways does not mean that it must be considered as part of a larger highway project; all roads must begin and end somewhere. Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1483-84 (10th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991).

Under Federal Highway Administration guidelines, in order to be regarded as a stand-alone project, the road must:

1) Connect logical termini and be of sufficient length to...

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