O'Reilly v. United States Army Corps. of Eng'rs

• Docket Number: Civil Action 21-1027
• Decision Date: 15 August 2022
• Parties: LORETTO O'REILLY, JR., ET AL. v. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

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LORETTO O'REILLY, JR., ET AL. v. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

Civil Action No. 21-1027

United States District Court, E.D. Louisiana

August 15, 2022

SECTION"A"(5)

ORDER AND REASONS

JAY C ZAINEY UNITED STATES DISTRICT JUDGE

The following motions are before the Court: Motion for Summary Judgment(Rec. Doc. 41) filed by the plaintiffs, Loretto O'Reilly, Healthy Gulf, Coalition for Responsible Zoning, and the Sierra Club and its Delta Chapter (“Plaintiffs”); Cross Motion for Summary Judgment(Rec. Doc. 89) filed by All State Financial Co.(“All State”); Cross Motion for Summary Judgment(Rec. Doc. 91) filed by the United States Army Corps of Engineers and Lt. General Scott A Spellmon(collectively and singularly “the Corps”).All motions are opposed.The motions, submitted for consideration on May 11, 2022, are before the Court on the briefs without oral argument.

This civil action is a challenge to the Corps' approval of two dredge and fill permits issued under Section 404 of the Clean Water Act, for the destruction and paving-in of a total of 40 acres of forested wetlands near Covington, St. Tammany Parish, Louisiana.(Rec. Doc. 1, Complaintat 1).

Judicial review of final agency action is conducted under the auspices of the Administrative Procedure Act(“APA”), 5 U.S.C. §§ 701-706.Plaintiffs allege that the Corps violated both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., and the Clean Water Act(“CWA”), 33 U.S.C. § 1251, et seq., when it issued the permits.

The two permits at issue in this action are the Timber Branch II permit (MVN-2018-0215-EPP), which was obtained by All State, and the Ochsner Blvd. Extension Road permit (MVN-2017-00075-EPP)(“the Ochsner permit”), which was obtained by St. Tammany Parish (“the Parish”).Plaintiffs seek to have both permits enjoined for violations of both the CWA and NEPA and remanded to the Corps for compliance with those governing laws.^[1]

Thus far in the litigation the Court has addressed emergency and preliminary injunctive relief pertaining to the Ochsner permit only.(Rec. Doc. 63, Order and Reasons denying TRO); (Rec. Doc. 84, Order and Reasons denying PI).Work pursuant to that permit was underway and progressing when this action was filed.Construction under the Timber Branch II permit issued to All State was not imminent when the case was filed.

I.BACKGROUND

On February 6, 2018, Bruce Wainer of All State applied to the Corps for a Section 404 wetlands fill permit to create the Timber Branch II subdivision, a proposed multi-use commercial and residential development in unincorporated St. Tammany Parish southwest of Covington, Louisiana.(Complaint¶ 80); (TB-AR0942, 0956).The total project acreage of Timber Branch II as described in the application is 69.19 forested acres; wetlands comprise 24.58 of those acres.Wainer owns the entire 200-acre tract within which Timber Branch II would be sited.(Complaint¶ 96).

The (Little) Tchefuncte River runs to the immediate east of the Timber Branch II tract.(Id.¶ 85).The Timber Branch, which is a tributary to the Tchefuncte, runs immediately south of the proposed Timber Branch II site.(Id.¶ 88).The 24.58 acres of wetlands at issue in the Timber Branch II project are adjacent to the Tchefuncte River and its tributary, the Timber Branch.(Id.¶ 89).

On November 3, 2020, the Corps approved the Section 404 permit for the Timber Branch II development.(Id.¶ 116); (TB-AR0002).Along with the permit, the Corps issued a Memorandum for Record (“MOR”), which is the decision document supporting the Corps' decision to issue the permit.(TB-AR0021).The Corps determined that a full Environmental Impact Statement was not required.Plaintiffs contend that this permit is substantially similar to the fill project called Timber Branch I whose 404 permit the Court enjoined in 2003, involving the same tract of land.SeeO'Reilly v. United States Army Corps of Engr's, No. 04-940, 2004 WL 1794531(E.D. La.Aug. 10, 2004), affirmed in part and reversed in part, 477 F.3d 225(5th Cir.2007).

Plaintiffs allege that the Timber Branch II site's wetlands help to absorb runoff during storm events and replacing those wetlands with impermeable concrete is going to exacerbate the already serious flooding problem in the area.(Id.¶¶ 91-104).Moreover, development of the Timber Branch II site would result in habitat loss for a litany of local wildlife.(Id.¶¶ 107-08).But even beyond Timber Branch II, Plaintiffs allege that the owner of the tract has plans to develop the entire 200-acre site because he has recently requested a rezoning approval from the Parish for portions of the site; and a large percentage of the remainder of the 200-acre Timber Branch II site is wetlands.(Id.¶¶ 113-115).

On November 10, 2016, the Parish applied for a permit to fill 31.5 forested acres of land to build a two-mile extension road between Highway 1077 and Ochsner Boulevard in order to alleviate local traffic congestion.(AR0146).Wetlands comprise 15.8 of the 31.5 acres to be filled.(Complaint¶ 148).

During the public notice period, Plaintiffs did not comment upon or object to the requested permit.Representatives of the plaintiff organizations did meet, however, with the Corps to voice their concerns about the proposed road.In fact, no one formally opposed the Ochsner permit.Both the Environmental Protection Agency(EPA) and the Louisiana Department of Wildlife and Fisheries commented on the project, expressing their concerns.(AR0124; AR0127).But it would be a mischaracterization of their submissions to call them “opposition” to the project.Those agencies' recommendations were essentially what federal law would require the Corps to consider anyway.The Louisiana Department of Environmental Quality later issued a Water Quality Certification for the project.(AR0121).

The Supplemental Administrative Record demonstrates that the Corps questioned the Parish about various aspects of the Ochsner permit application and the decision to locate the extension in the chosen area.(Rec. Doc. 59).

On November 17, 2020, the Corps approved the Section 404 permit for the Ochsner Blvd. Extension project.(AR0001).Along with the permit, the Corps issued a Memorandum for Record (“MOR”), which is the decision document supporting the Corps' decision to issue the permit.(AR0014).The Corps determined that a full Environmental Impact Statement was not required.

The Parish began the public bid process for the construction of the Ochsner extension road in May and June 2021.The contract was awarded to Magee Excavation & Development, LLC on October 13, 2021, and Magee received its notice to proceed from the Parish on November 4, 2021.(Rec. Doc. 61-2, Affidavit).The preparatory work on the site of the project began not long after.

Plaintiffs complain that the Timber Branch II and Ochsner Blvd. Extension Road permits are only two of dozens of Section 404 permits that the Corps has issued in rapidly-developing west St. Tammany Parish, which have collectively eliminated hundreds of acres of flood-absorbing wetlands and replaced them with impermeable concrete.(Complaint¶ 2).Primary among Plaintiffs' concerns (which include loss of wildlife habitat, traffic and noise problems, and diminution of water quality) is that one of the most critical functions of wetlands is their capacity to absorb floodwaters, and according to Plaintiffs, flooding has reached epic proportions in the region.(Id. at 1).At the risk of oversimplifying Plaintiffs' challenge to the Corps' decision to issue the Timber Branch II and Ochsner permits-because Plaintiffs do challenge the permits on numerous grounds-the crux of Plaintiffs' complaint is that the Corps took a myopic view with respect to each permit without considering the detrimental cumulative impacts that these two additional permits would contribute to in light of all of the other permits issued in that region.

Plaintiffs filed their complaint for declaratory and injunctive relief on May 27, 2021.The administrative record was lodged on November 15, 2021, (Rec. Doc. 36), and supplemented on January 10, 2022, (Rec. Doc. 59).On November 22, 2021, Plaintiffs moved for leave to file a motion for summary judgment pertaining to both permits that exceeded the page limits imposed by the Local Rules.(Rec. Doc. 38).The Court granted that motion but rather than have the motion for summary judgment submitted on the December 8, 2021 date requested by Plaintiffs, a date which would have required the oppositions to be filed immediately after the Thanksgiving holiday weekend, the Court set the motion for submission on January 19, 2022.(Rec. Doc. 40, Order).

The Corps and the intervenors sought to adjust the briefing schedule which then prompted Plaintiffs' to file their first motion for a temporary restraining order(“TRO”).^[2](Rec. Doc. 48, Motion).On the same day that they moved for a TRO, Plaintiffs filed a motion for preliminary injunctive relief.(Rec. Doc. 49, Motion for Preliminary Injunction).In light of the flurry of motions being filed, including those for emergency relief, the Court held a telephone status conference on December 15, 2021.(Rec. Doc. 54, Minute Entry).The parties proposed various approaches to structuring the motion practice in this case and the Court urged all parties to reach an agreement.The parties reached much common ground as to scheduling but days later Plaintiffs filed their amended motion for a temporary restraining order.(Rec. Doc. 55, Motion).The Court then issued its own briefing schedule.(Rec. Doc. 57, Order).

On January 13, 2022, the Court denied the motion for a temporary restraining order as to the Ochsner permit, explaining that...