Sierra Club v. Van Antwerp, No. 07-13297.

Decision Date09 May 2008
Docket NumberNo. 07-13297.
Citation526 F.3d 1353
PartiesSIERRA CLUB, Natural Resources Defense Council, Inc., National Parks and Conservation Association, Plaintiffs-Appellees, United Transportation Union, Plaintiff, v. Lt. Gen. Robert L. VAN ANTWERP Chief of Engineers, Army Corps of Engineers, et al., Defendants, Rinker Materials of Florida, Inc., Miami-Dade Limestone Products Association, Inc., et al., Intervenor-Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Henry C. Whitaker, Theodore B. Olson, Raymond B. Ludwiszewski, Peter E. Seley, Gibson, Dunn & Crutcher, LLP, Rafe Petersen, Holland & Knight, Washington, DC, Michael Nachwalter, Elizabeth Brooks Honkonen, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, Elliot H. Scherker, Edward G. Guedes, Daniel M. Samson, Marlene K. Silverman, Kerri L. Barsh, Greenberg Traurig, P.A., Richard J. Ovelman, Franklin G. Burt, Jason Patrick Kairalla, Jorden Burt, LLP, Douglas M. Halsey, Thomas Neal McAliley, Angela D. Daker, White & Case, LLP, Miami, FL, John A. DeVault, III, Bedell, Dittmar, DeVault & Pillans, P.A., Jacksonville, FL, Daniel H. Thompson, Berger, Singerman, P.A., Tallahassee, FL, Martin J. Alexander, Holland & Knight, West Palm Beach, FL, for Appellants.

Paul J. Schwiep, Coffey Burlington, LLP, Miami, FL, Eric Robert Glitzenstein, Meyer & Glitzenstein, Washington, DC, for Appellees.

Gregory G. Costas, FL. Dept. of Transp., Tallahassee, FL, Vincent F. Vaccarella, Jordan Matthew Keusch, Vincent F. Vaccarella, P.A., Miami, FL, Michael A. Piscitelli, Vezina, Lawrence & Piscitelli, P.A., Ft. Lauderdale, FL, Ellen J. Durkee, U.S. Dept. of Justice, ENRD, App. Section, Washington, DC, for Amici Curiae.

Appeals from the United States District Court for the Southern District of Florida.

Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,* District Judge.

DUBINA, Circuit Judge:

Sierra Club brought this action against the Army Corps of Engineers ("Corps") after the Corps granted Rinker Materials and other mining concerns ("Miners") Clean Water Act ("CWA") permits. 33 U.S.C. § 1251 et seq. The Miners sought to extract high-quality limestone from the "Lake Belt" area—a stretch of wetlands between the Florida Everglades and the northwest edge of metropolitan Miami. To mine the Lake Belt wetlands, however, the Miners had to first secure CWA permits from the Corps. The Corps, in reviewing whether to issue permits, had to follow procedures required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and CWA. After the Corps granted the permits, Sierra Club brought suit, alleging inter alia that in granting the permits the Corps performed its NEPA, ESA, and CWA duties arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The Miners intervened as defendants, and all parties moved for summary judgment. The district court granted the Appellees' motion and found that, for numerous reasons, the Miners' permits were due to be vacated. This appeal followed. After reviewing the voluminous record, reading the parties' briefs, and having the benefit of oral argument, we vacate the district court's grant of summary judgment and remand this case to the district court to apply the proper APA standard of review to the Corps's environmental analysis.

I. Background

South Florida's Lake Belt comprises 60,000 acres of wetlands just east of Everglades National Park and northwest of metropolitan Miami. The Miners own a substantial portion of the Lake Belt and wish to mine their lands. In the late 1990s, at the Miners' urging, the Corps investigated the propriety of issuing 50-year CWA permits to mine 15,800 acres of the Lake Belt. In 1999, the Corps issued a draft Environmental Impact Statement ("EIS") pursuant to NEPA, which recognized the proposed project's negative environmental impacts. The Corps took public comment on the draft, and critics, including multiple federal agencies, raised serious environmental, technical, and legal concerns. Nonetheless, the Corps issued a final EIS the following year largely following the draft EIS. In the final EIS the Corps noted that environmental effects could be mitigated by placing special permit conditions on the Miners. For example, one suggested permit condition contemplated a percentage of mining profits be used to purchase wetlands in the "Pennsuco" area, adjacent to the Lake Belt, for public conservation.

After issuing the final EIS, the Corps released a CWA "public notice" that it planned to issue the mining permits. Part of the notice indicated that the Corps would not engage in ESA "formal consultation" with the U.S. Fish and Wildlife Service ("FWS") because the Corps determined that issuing the permits would have no effect on any species protected by the ESA. The public and several federal agencies heavily criticized the public notice. In particular, the FWS refused to concur in the Corps's "no effect" determination because FWS concluded that the mining might have a detrimental impact on the ESA-protected wood stork. The FWS therefore requested that formal consultation begin between FWS and the Corps.

Also after the EIS, the Corps received information regarding the Northwest Wellfield—Miami-Dade County's primary source of drinking water—and the Pennsuco wetlands. The information showed that the Northwest Wellfield was far more vulnerable to mining-related contamination than was known at the time the Corps approved the permits. The information showed that property values had risen in the Pennsuco area, such that the mitigation contemplated by the EIS—purchasing wetlands for public conservation to replace the destroyed Lake Belt wetlands—was no longer economically feasible.

In 2001, the Corps responded to the overwhelming criticism and new information by limiting the permits, issuing a new public notice suggesting 10-year permits covering only 5,000 acres. This limited proposal also received heavy criticism, including the same FWS criticism regarding the impact on the wood stork. Responding to FWS's concerns, the Corps drafted a biological assessment ("BA") concluding that the Lake Belt mining would have no effect on the wood stork because the wood storks that formerly foraged in the Lake Belt area had shifted locations. In 2001, the FWS accepted the Corps's BA and concurred in the Corps's "no effect" finding.

The Appellees requested that the Corps draft a supplemental EIS ("SEIS") to address the new information and criticisms, and then reevaluate the permits. The Corps instead granted the 10-year permits in a final Record of Decision ("ROD"). The ROD described the criticisms and new information, but in the end found that the more-limited mining plan would have no significant effects not already discussed in the EIS.1

Shortly after the ROD, the Appellees brought this suit against the Corps challenging the permits. The Miners intervened, and eventually the parties all moved for summary judgment. The court granted the Appellees' motions for summary judgment on several claims and their voluntary motions to dismiss their other claims. The court then "REMANDED to the [Corps] for further development, [but] retained jurisdiction for the purpose of determining an appropriate remedy." DE 73 at 186 (hereinafter "Summary Judgment Order"). After the court entered judgment, the Corps moved to dismiss as moot the claims relating to ESA formal consultation with the FWS because the Corps and FWS subsequently engaged in formal consultation related to the Lake Belt permits' effect on the wood stork— the only ESA relief Appellees sought. The Corps otherwise followed the court's judgment, and began work on an SEIS to address the issues the court had raised.

The court denied the motion to dismiss and entered a "Remedies Order" supplementing the Summary Judgment Order and addressing remedies. DE 372; DE 387. The court held that the permits must be vacated, but stayed the vacatur of some permits pending the Corps's release of its SEIS. Specifically, the court stayed the vacatur of any permits licensing mining outside the "60-day range" of the Northwest Wellfield.2 The Miners appealed. The Corps did not appeal, choosing instead to comply with the district court's judgment and to appear in this appeal as amicus curiae.

II. Jurisdiction

Putting aside the other jurisdictional grounds asserted, we conclude that we have "injunction" jurisdiction over this case under 28 U.S.C. § 1292(a)(1). For an order to be appealable pursuant to § 1292(a)(1), it must be a clear and understandable directive from the district court, it must be enforceable through contempt proceedings, and it must give some or all of the substantive relief sought in the complaint. Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1128 (11th Cir. 2005). The district court's Remedies Order contains clear, enforceable directives that Sierra Club requested in its complaint. See DE 387 at 103-04 (issuing specific orders to Miners); DE 26 at 53 (requesting injunctive relief in amended complaint). For example, the court stated:

In other words, all devegetating, demucking, scraping, blasting, and harvesting of limestone from the aquifer must stop in [the 60-day range] immediately (no later than 5:00 p.m. on Tuesday, July 17, 2007).

DE 387 at 103; see also id. at 103-04 (ordering cessation of other activity specific to each mining company). Sierra Club points to the district court's express declaration that it was not issuing an injunction, DE 387 at 31 n. 71, but we conclude this is an instance where substance should control over form. The district court issued commands of such specificity and breadth that no litigant would dare violate them. If the Miners had violated the commands, the district court could have initiated contempt proceedings, and it is not clear to us that the court would accept "But you said it wasn't an...

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