Sierra Club v. US Army Corps of Engineers

• Citation: 935 F. Supp. 1556
• Decision Date: 27 August 1996
• Docket Number: Civil Action No. 96-0672-CB-M.
• Parties: SIERRA CLUB, Mobile Bay Audubon Society, and Native Forest Network, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, William S. Vogel, and City of Mobile, Alabama, Defendants.
• Court: U.S. District Court — Southern District of Alabama

935 F. Supp. 1556

SIERRA CLUB, Mobile Bay Audubon Society, and Native Forest Network, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, William S. Vogel, and City of Mobile, Alabama, Defendants.

Civil Action No. 96-0672-CB-M.

United States District Court, S.D. Alabama, Southern Division.

August 27, 1996.

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Ray Vaughan, Montgomery, AL, for plaintiffs.

Ronald Wise, U.S. Attorneys Office, Deborah J. Shoemake, U.S. Army Corps of Engineers, J. Gordon House, Jr., John R. Lockett, Mobile, AL, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BUTLER, Chief Judge.

This matter is before the Court following a hearing held in open court on August 19, 1996. Although this court proceeding was originally conceived as a hearing on the plaintiffs' motion for preliminary injunction, plaintiffs' counsel suggested that, in the interests of efficiency, said hearing could also properly serve as a trial on the merits. Defense counsel offered no objections, and the Court determined that the preliminary injunction hearing could proceed as a trial on the actual merits of this action. After careful consideration of the parties' exhaustive written submissions, as well as of the arguments and evidence presented prior to, during, and after the hearing, the Court finds that the plaintiffs' claims are due to be DENIED, and that this action is due to be DISMISSED with prejudice for the reasons set forth below.¹

I. Findings of Fact

This action arises from efforts by defendant City of Mobile, Alabama ("the City") to construct an 8,000 seat AA professional baseball stadium and accompanying 2,100 space parking lot near Interstate 65 in Mobile, Alabama. On January 15, 1996, the City filed an application (numbered AL96-00098-L) for a wetlands fill permit with defendant U.S. Army Corps of Engineers ("the Corps"). Admin. Record, at tab 7. Through this permit application, the City sought permission to fill approximately 19.9 acres of transitional wetlands for construction of a baseball stadium complex on a 30 acre tract of land bounded by Interstate 65, Highway 90, McVay Road, and Halls Mill Road. The 30 acre parcel in question is part of a larger, privately-owned 180 acre tract ("the McGowin tract"). After extensive negotiations, the private land owners donated the 30 acre parcel to the City specifically for the purpose of developing the baseball stadium and parking lot thereon.²

In conjunction with the permit application, the City submitted a document entitled "Alternatives Analysis", in which the City assessed the relative desirability of eleven different potential sites for construction of the baseball stadium. Admin.Record, at pp. 00076-00090. The conclusion reached by the City in its alternatives analysis was that the McGowin tract was superior to all of the other potential construction sites, based on the overriding criteria of size, accessibility, visibility, and cost-effectiveness.³ Admin.Record, at p. 00086.

On January 22, 1996, the Corps issued public notice of the City's permit application. Admin.Record, at tab 12. In a letter received by the Corps on February 14, 1996, the U.S. Environmental Protection Agency ("EPA") raised several concerns about the methods used by the City in its alternatives analysis, the possibility of re-orienting the stadium on the site so as to avoid or reduce the contemplated wetlands impact, and the selection of the mitigation site. Admin.Record, at tab 24. On February 21, 1996, the U.S. Fish and Wildlife Service advised the Corps of its recommendation that the permit be denied on the grounds that the wetlands in question were important environmental resources, the proposed stadium complex was not water-dependent and therefore needed not be constructed on wetlands, and the planned stadium did not maximize use of available on-site upland areas which could have reduced or eliminated any wetlands impact caused by the development. Admin.Record, at tab 27. During the public notice period spanning from January 22, 1996 until February 25, 1996, the Corps also received numerous negative comments regarding the City's proposal from members of the public.

On April 23, 1996, the City revised its proposal by agreeing to set aside three acres of wetlands in the 30 acres of stadium development property, thereby reducing the wetlands loss from 19.9 acres to 16.9 acres. Admin.Record, at tab 67. As part of its revised proposal, the City also offered to set aside seven acres of wetlands on the McGowin tract adjacent to the baseball stadium parcel as a buffer to the development. Id. On April 30, 1996, the Fish and Wildlife Service commented on the City's revised proposal by recommending that additional inquiries be made as to the possibility of wetland avoidance before the Corps issued the permit.⁴ Admin.Record, at tab 73. Similarly, on May 17, 1996, the EPA commented on the proposal to fill 16.9 acres of wetlands by reiterating its concern that wetland impacts could be either avoided altogether or mitigated further by the City.⁵ Admin.Record, at tab 97.

On May 8, 1996, McGowin property owners' representative Joe H. Little, Jr. advised the City in writing that the 30 acre tract originally offered for the stadium was the only acreage which the land owners would make available for the stadium.⁶ Admin.Record, at tab 81. On May 15, 1996, the City supplied a revised alternatives analysis to the Corps. This supplemental analysis addressed some of the comments and concerns which had been raised by various agencies and members of the public during the public notice period for the previous proposal. Admin.Record, at tab 91. The City submitted additional supplemental information regarding alternative sites to the Corps on May 21, 1996. Admin.Record, at tab 101. Also on May 21, 1996, plaintiffs' counsel Ray Vaughan ("Vaughan") wrote a letter to the Corps in which he urged them to consider the possibility of moving the entire stadium project to the uplands which abut the wetlands on the McGowin tract. Admin.Record, at tab 102. He further advised the Corps of his belief that there was insufficient evidence in the administrative record to support any conclusion that it was impracticable to avoid wetlands disruption by moving the stadium complex to the uplands. Id.

On May 23, 1996, the City informed the Corps of a substantial alteration to the plans for the stadium which would result in the reduction of wetlands impact from 16.9 acres to 7.4 acres. Admin. Record, at tab 196. Pursuant to this third variation on the stadium design theme, the proposed stadium site was moved to the southwestern corner of the McGowin property, with the land owners' consent.⁷ Admin.Record, at tab 113. As redesigned, the stadium itself would no longer be constructed upon a former wetlands area; however, approximately 1,000 parking spaces would be dependent on the 7.4 acres of wetlands being filled and developed.

In a letter dated May 24, 1996, City Mayor Michael C. Dow ("Mayor Dow") advised the Corps of recent discussions with the property owners. Mayor Dow indicated that the property owners had informed him "emphatically and finally" that they would make no additional or alternative land available on the 180 acre tract, and noted the property owners' assertion that "further expansion of the baseball stadium site would significantly impact their ability to develop the surrounding area and would be contrary to their development plans."⁸ Id. With respect to this third proposal, on May 24, 1996, the Corps denied a request for public hearing on the ground that such a hearing would provide no additional information which would assist the Corps in determining whether or not a permit should issue. Admin.Record, at tab 114.

On May 24, 1996, the Corps faxed information concerning the City's third proposal to the EPA and to the Fish and Wildlife Service. Admin.Record, at tabs 110, 111. On the morning of May 28, 1996, the Corps faxed City-provided maps of the new site plan and mitigation area to those agencies. Admin.Record, at tabs 118-120. Shortly before noon on the same date, without having received comments or recommendations from either the EPA or the Fish and Wildlife Service, the Corps released a Statement of Findings which stated, in relevant part, that:

"Based upon review of the application, as revised, formulation of an environmental assessment, 404(b)(1) evaluation, consideration of comments by other agencies and the public, and after weighing all known factors involved in the proposed action, the Corps found that ... the public interest would best be served by issuance of the permit...." Admin.Record, at pp. 00740-41.

As an attachment to the Statement of Findings, the Corps also released a document entitled "Environmental Assessment." Admin.Record, at pp. 00742-00765. In this attachment, the Corps noted that the 7.4 acres of wetlands impacted by the stadium project were of low quality and represented a mere 0.1% of all remaining wetlands in the Dog River drainage basin. Admin.Record, at p. 00748. The assessment included a discussion of the feasibility of each of thirteen alternative sites for the stadium, as well as a "no action" alternative, and explained why each was rejected as inferior to the course of action chosen. Admin.Record, at pp. 00753-00756. With respect to alternative configurations within the 180 acre tract, the Corps noted in the report that relocation to the north along I-65 would impact additional wetland acreage, that relocation to the east would reduce stadium visibility from the interstate and disrupt nearby residential areas, that relocation to the southeast could severely disrupt a cultural resource site, and that the property owners had indicated that there was no additional property on the McGowin tract which would be made available to the City. Admin.Record, at p. 00756. In light of these concerns, the Corps "concluded that the current site...