Preserve Endangered Areas v. US ARMY CORPS

• Decision Date: 20 December 1995
• Docket Number: Civil No. 1:95-CV-1394-WCO.
• Citation: 916 F. Supp. 1557
• Parties: PRESERVE ENDANGERED AREAS OF COBB'S HISTORY, INC. ("P.E.A.C.H."); Roger Peaster; Heidi Peaster; Johnny Plunkett; Ruby Plunkett; John Mowell; and, Marie Mowell v. UNITED STATES ARMY CORPS OF ENGINEERS; Togo D. West, Secretary of the Army; Colonel Wayne M. Boy, District Engineer, Savannah District Corps of Engineers; Necholous 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.
• Court: U.S. District Court — Northern District of Georgia

916 F. Supp. 1557

PRESERVE ENDANGERED AREAS OF COBB'S HISTORY, INC. ("P.E.A.C.H."); Roger Peaster; Heidi Peaster; Johnny Plunkett; Ruby Plunkett; John Mowell; and, Marie Mowell v. UNITED STATES ARMY CORPS OF ENGINEERS; Togo D. West, Secretary of the Army; Colonel Wayne M. Boy, District Engineer, Savannah District Corps of Engineers; Necholous 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.

Civil No. 1:95-CV-1394-WCO.

United States District Court, N.D. Georgia, Atlanta Division.

December 20, 1995.

COPYRIGHT MATERIAL OMITTED

Robert B. Remar, Susan Marie Garrett, Kirwan Parks Chesin & Remar, Atlanta, GA, for Preserve Endangered Areas of Cobb's History, Inc., Roger Peaster, Heidi Peaster, Johnny Plunkett, Ruby Plunkett, John Mowell, Marie Mowell.

Patricia Rebecca Stout, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, Mark A. Brown, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, Naikang Tsao, U.S. Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Caroline M. Zander, U.S. Department of Justice, Environmental/Natural Resources Division, General Litigation Section, Washington, DC, Rebecca R. Phillips, U.S. Army Corp of Engineers, Office of Counsel, Savannah, GA, for United States Army Corps of Engineers, Wayne M. Boy, Necholus Ogden.

Patricia Rebecca Stout, Office of United States Attorney, Atlanta, GA, Mark A. Brown, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, Naikang Tsao, U.S. Department of Justice, Environment & Natural Resources Division, Environmental Defense Section, Washington, DC, Caroline M. Zander, U.S. Department of Justice, Environmental/Natural Resources Division, General Litigation Section, Washington, DC, Togo D. West, United States Environmental Protection Agency, Carol M. Browner, John H. Hankinson.

Fred Douglas Bentley, Jr., Coleen Daugherty Hosack, Bentley Bentley & Bentley, Marietta, GA, Fred Douglas Bentley, Jr., Office of Cobb County Attorney, Law Department, Marietta, GA, for Cobb County, Georgia.

Roy E. Barnes, Jerry A. Landers, Jr., Barnes Browning Tanksley & Casurella, Marietta, GA, for C.W. Matthews Contracting Company, Inc.

ORDER

O'KELLEY, District Judge.

The captioned case is before the court for consideration of various motions:

1. Plaintiffs' motion for reconsideration 42-1;

2. Plaintiffs' motion for summary judgment 46-1;

3. Defendant Cobb County's motion for summary judgment 47-1;

4. Federal defendants' motion for summary judgment 50-1;

5. Plaintiffs' motion to supplement the record 52-1;

6. Defendant Cobb County's motion to strike 56-1; and,

7. Federal defendants' motion to strike 57-1.

Each motion will be considered in turn or, if the matter warrants, considered collectively with related motions.

1. Plaintiffs' motion for reconsideration 42-1

Plaintiffs' motion seeks reconsideration of that portion of this court's order dated August 24, 1995, wherein certain claims brought pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(2), were dismissed, along with a claim challenging the Environmental Protection Agency ("EPA") administrator's failure to exercise oversight authority.

The Local Rule governing motions for reconsideration states:

Motions for reconsideration shall not be filed as a matter of routine practice. Whenever a party or attorney believes it is absolutely necessary to file a motion to reconsider ... it shall be filed with the Clerk of the Court within 10 days after the entry of the order or judgment....

LR 220-6, NDGa. (emphasis added). As indicated by the language of the aforementioned local rule, motions for reconsideration are not to be filed as a matter of course. In fact, the term "motion for reconsideration", as such, does not appear in the Federal Rules of Civil Procedure. The title of FED. R.CIV.P. 60(b), under which a so-called motion for reconsideration may be brought, further attests to its extraordinary nature ("Relief From Judgment or Order — Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc."). "Rule 60(b) is `properly invoked where there are extraordinary circumstances, or where the judgment may work an extreme and undue hardship'...." Mohammed v. Sullivan, 866 F.2d 258, 260 (8th Cir.1989) (quoting Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987)). A motion for reconsideration is not an opportunity for the moving party and their counsel to instruct the court on how the court "could have done it better" the first time. Rather, the motion should be reserved for certain limited situations, namely the discovery of new evidence, an intervening development or change in the controlling law, or the need to correct a clear error or prevent a manifest injustice. See, e.g., Kern-Tulare Water District v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal 1986), aff'd. in part and rev'd. in part, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988).

Plaintiffs' pending motion does not meet this onerous standard. The court has no doubt that this motion was filed in good faith. Nevertheless, plaintiffs are unable to articulate a persuasive reason for the court to depart from its prior ruling. Until presented with binding precedential authority to the contrary, the court will not depart from the manner of statutory construction articulated in the August 24 order. In terms of the Kern-Tulare analysis set forth above, plaintiffs do not introduce any new evidence, nor have they apprised the court of any intervening legal developments which challenge the propriety of the original ruling. Lastly, there is little risk of manifest injustice, inasmuch as a number of plaintiffs' claims are unaffected by the underlying order, so there remains ample opportunity to address plaintiffs' fundamental complaint, namely the issuance of the § 404 permit. Thus, plaintiffs' motion for reconsideration is hereby DENIED.

2. Plaintiffs' motion for summary judgment 46-1

Plaintiffs' motion for summary judgment is hereby DENIED because it fails to establish that plaintiffs are entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c).

3-4. Defendant Cobb County's motion for summary judgment 47-1 and Federal defendants' motion for summary judgment 50-1

FACTS

This action was commenced as a challenge to a proposed highway construction project in Cobb County, Georgia. Plaintiffs allege violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4332 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f. The scope of this lawsuit was narrowed considerably by an order dated August 24, 1995, wherein the court dismissed a number of plaintiffs' claims. The court further ordered the parties to submit cross-motions for summary judgment to facilitate resolution of the ultimate question in the case at bar. Inasmuch as all defendants share a common interest in the ultimate outcome of this matter, the court will consider the two motions for summary judgment collectively.

Notwithstanding the variety of claims asserted by plaintiffs, the fundamental issue before the court, as to both the plaintiffs' and defendants' motions, is whether the Army Corps of Engineers' ("Corps") Finding of No Significant Impact ("FONSI") and issuance of a § 404 permit for the construction of Phase IV of the East-West Connector was, in light of the applicable legal standard, erroneous as a matter of law. If the foregoing question is answered affirmatively, the case must be remanded to the Corps for reconsideration consistent with this court's order. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460 (1978). If, on the other hand, the foregoing question is answered negatively, the Corps' determination must stand as rendered.

Typically, at this juncture, the court would set forth a concise finding of facts upon which the motion for summary judgment could be evaluated. However, due to the voluminous record of facts before the court, i.e. the administrative record, the interests of efficiency and judicial economy will be best served by the interjection of facts, as necessary, throughout the following legal discussion.

In terms of the source of the facts under consideration, it is important to recognize that the court has had the opportunity to visit this issue on a previous occasion in the case sub judice. In the court's order dated August 24, 1995, the court determined, upon reconsideration of a prior order, that judicial review in this case should be confined to the administrative record, unless certain circumstances exist which would warrant departure from that record.¹ With that background, the court may now proceed to evaluate the legal merits of the pending motion.

LEGAL ANALYSIS

I. The Summary Judgment Standard

Summary judgment is only proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). "Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex...