Soss2, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 09 August 2019
• Docket Number: Case No. 8:19-cv-462-T-23JSS
• Citation: 403 F.Supp.3d 1233
• Parties: SOSS2, INC., Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.
• Court: U.S. District Court — Middle District of Florida

403 F.Supp.3d 1233

SOSS2, INC., Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

Case No. 8:19-cv-462-T-23JSS

United States District Court, M.D. Florida, Tampa Division.

Signed August 9, 2019

Jane West, Jane West Law, St. Augustine, FL, for Plaintiff.

Claudia Antonacci Hadjigeorgiou, Mark Arthur Brown, Jacqueline Leonard, Leslie Marie Hill, US Department of Justice - ENRD, Washington, DC, for Defendant.

ORDER

STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

Alleging that the U.S. Army Corps of Engineers failed to consider a dredging project's effect on red tide, SOSS2 sues (Doc. 1) for a declaration that the Corps's "finding of no significant impact" violates the Administrative Procedure Act (APA), the National Environmental Protection Act (NEPA), and other federal environmental law. SOSS2 moves (Doc. 23 at 3) to supplement the administrative record with extra-record evidence about red tide. The Corps opposes (Doc. 30) supplementation. Also, the Lido Key Resident's Association moves (Doc. 20) to intervene as a defendant. SOSS2 opposes (Doc. 28) intervention.

BACKGROUND

Under NEPA, a federal agency prepares an environmental assessment to determine whether a proposed "major action" will have a "significant impact" on the environment. Sierra Club v. U.S. Army Corps. of Eng'rs , 295 F.3d 1209, 1215 (11th Cir. 2002) (citing 40 C.F.R. § 1501.3 ). If the environmental assessment demonstrates that the proposed action will not have a significant impact on the environment, the agency issues a "finding of no significant impact," which incorporates the environmental assessment. Sierra Club , 295 F.3d at 1215 (citing 40 C.F.R. § 1508.13 ). If the agency issues a finding of no significant impact, the agency need not prepare an Environmental Impact Study (EIS), a report that requires a "full and fair discussion of significant environmental impacts." Sierra Club , 295 F.3d at 1215 (citing 42 U.S.C. § 4332(2)(C) ).

In June 2018, the Corps and the City of Sarasota issued a joint coastal permit authorizing the "Hurricane and Storm Damage Reduction Project in Lido Key, Sarasota County, Florida." (Doc. 19) The project authorizes periodic beach nourishment and construction of a "groin system" on Lido Key beach. (Doc. 1 at ¶ 3) The Corps plans to construct the groin system by dredging and "borrowing" sand from a shoal in Big Sarasota Pass — a natural inlet between Siesta Key and Lido Key that serves as the primary connection between the City of Sarasota and the Gulf of Mexico. (Doc. 1 at ¶ 3) The "borrow area" overlaps with the Sarasota Bay Estuary system, which the Florida Department of Environmental Protection (FDEP) designates as an "Outstanding Florida Water" — a water worthy of special protection. (Doc. 1 at ¶ 4) In August 2018, the Corps issued an environmental assessment finding that the project would have "no significant impact on the environment." (Doc. 1 at ¶ 1) Accordingly, the Corps prepared no EIS.

According to SOSS2, a "red-tide outbreak" occurred in 2018 and devastated Sarasota Bay's marine ecosystem and tourism economy. (Doc. 1 at ¶¶ 5–6) SOSS2 claims that the environmental assessment's failure to consider the project's effect on red tide violates NEPA's requirement to "take a hard look" at each environmental consequence of a project. Also, SOSS2 alleges that the failure to consider red tide violates the APA, the Clean Water Act, and the Endangered Species Act.¹

AUGMENTING THE ADMINISTRATIVE RECORD

In May 9, 2019, the Army Corps of Engineers lodged (Doc. 19) the administrative record. SOSS2 moves (Doc. 23) to "supplement and/or augment" the administrative record (1) with unspecified transcripts — in an unspecified quantity — and exhibits from a state agency hearing and (2) with "any and all" documents — again in an unspecified quantity — about red tide.² (Doc. 23 at 3)

Section 706 of the APA, 5 U.S.C. § 706, requires a district court to review the administrative record. Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs , 87 F.3d 1242, 1246 (11th Cir. 1996) ("The focal point for judicial review of an administrative agency's action should be the administrative record."). Because an agency presumably knows the content of the record the agency considered, an agency's certification of the completeness of the administrative record receives a measure of presumed correction. Alabama-Tombigbee Rivers Coal. v. Kempthorne , 477 F.3d 1250, 1262 (11th Cir. 2007) (citing Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ). The Eleventh Circuit permits a reviewing court to "go beyond" the administrative record only if "(1) an agency's failure to explain its actions effectively frustrates judicial review; (2) it appears the agency relied on materials or information not included in the administrative record; (3) technical terms or complex subjects need to be explained; or (4) there is a strong showing of agency bad faith or improper behavior." Cobb's History , 87 F.3d at 1247 n.1 (citing Animal Def. Council v. Hodel , 840 F.2d 1432, 1437 (9th Cir. 1988) ); Miccosukee Tribe of Indians v. United States , 396 F. Supp. 2d 1327, 1330 (S.D. Fla. 2005) (Moore, J.).

SOSS2 requests both to "supplement" the administrative record and to admit "extra-record evidence" but employs these distinct terms interchangeably. To supplement the administrative record means to permit review of material that the agency considered but failed to include. Pacific Shores Subdivision, California Water Dist. v. U.S. Army Corps of Eng'rs , 448 F. Supp. 2d 1, 5 (D.D.C. 2006). To admit extra-record evidence means to permit review of material that the agency was not offered to consider. Pacific Shores , 448 F. Supp. 2d at 5. A party moving to admit extra-record evidence must show either that the agency's ineffective explanation of an action frustrates judicial review or that technical or complex terms require recourse to an extra-record explanation. Georgia River Network v. U.S. Army Corps of Eng'rs , No. 4:10-cv-267, 2011 WL 2551044, at *3 (S.D. Ga. June 27, 2011) (Edenfield, J.) (citing Cobb's History , 87 F.3d at 1247 n.1 ).

Administrative Exhibits and Transcripts

SOSS2 moves to supplement the administrative record with "[t]ranscripts and exhibits from the Florida Division of Administrative Hearings Case No. 17-1449." (Doc. 23 at 3) SOSS2 fails (1) to describe the administrative hearing, (2) to explain the content of the transcripts and the exhibits, and (3) to show why the administrative record remains incomplete absent inclusion of the transcripts and exhibits. Accordingly, SOSS2 fails to demonstrate that the transcripts and exhibits fall within an exception under Cobb's History .³

"Any and all documents about ... red tide"

SOSS2 requests admission of extra-record evidence comprising "[a]ny and all documents related to the ecological and economic impacts of the 2018 red-tide outbreak in Sarasota County, Florida." (Doc. 23 at 3) SOSS2 alleges that the environmental assessment both "fails to include any mention of [ ] red tide and how this Project will interface ecologically with the compromised marine environment" and fails to mention "the disruptive impacts of the Projects to the local economy that is already suffering unprecedented economic losses in the wake of the red tide outbreak." (Doc. 23 at 6, 7) SOSS2 asserts that limiting this action to the administrative record, which reportedly contains no evidence about red tide, "frustrate[s] judicial review" of SOSS2's claim that the Corps's decision not to prepare an EIS is arbitrary and capricious.

Under 42 U.S.C. § 4332(2)(C), a federal agency must prepare an EIS only if the agency proposes a "major federal action" that "significantly affects the quality of the human environment." Hill v. Boy , 144 F.3d 1446, 1450 (11th Cir. 1998). The agency must take a "hard look" at the consequences of the proposed action. North Buckhead Civic Ass'n v. Skinner , 903 F.2d 1533, 1541 (11th Cir. 1990). An agency satisfies the "hard look" requirement by "examin[ing] the relevant data and articulat[ing] a satisfactory explanation for [the] action." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A district court will vacate as "arbitrary and capricious" an agency's decision under "hard look" review if the agency "failed entirely to consider an important aspect of the problem." Sierra Club , 295 F.3d at 1216 (citing Motor Vehicle Mfrs. , 463 U.S. at 43–44, 103 S.Ct. 2856 ).

Because NEPA requires an agency to consider each adverse consequence of an agency action, other circuits have described NEPA as an "inherent[ ] challenge to the adequacy of the administrative record." Ohio Valley Envtl. Coal. v. Aracoma Coal Co. , 556 F.3d 177, 201 (4th Cir. 2009) (citing Cnty. of Suffolk v. Sec'y of the Interior , 562 F.2d 1368, 1384 (2d Cir. 1977) ). Accordingly, other circuits "generally have been willing to look outside the record when assessing the ... determination that no EIS is necessary," Webb v. Gorsuch , 699 F.2d 157, 159 n.2 (4th Cir. 1983), but these circuits limit review to ensuring "that no arguably significant consequences have been ignored," Taxpayers of Mich. Against Casinos v. Norton , 433 F.3d 852, 860 (D.C. Cir. 2006).

Although the Eleventh Circuit has not recognized a general exception permitting extra-record evidence in NEPA actions, Miccosukee , 396 F. Supp. 2d at 1333, the Eleventh Circuit permits review of extra-record evidence if the "agency's failure to explain its actions effectively frustrates judicial review." Cobb's History , 87 F.3d at 1247 n.1. Miccosukee explains that extra-record evidence in a NEPA action avoids the frustration of judicial review "only when the administrative record is so inadequate as to prevent the reviewing court from effectively determining whether the agency considered all environmental consequences of its...