St. Johns Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, Case No. 3:17-cv-398-J-34MCR

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtMARCIA MORALES HOWARD, United States District Judge
Citation462 F.Supp.3d 1256
Decision Date26 May 2020
Docket NumberCase No. 3:17-cv-398-J-34MCR
Parties ST. JOHNS RIVERKEEPER, INC., Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant, v. Jacksonville Port Authority, Intervenor Defendant.

462 F.Supp.3d 1256

ST. JOHNS RIVERKEEPER, INC., Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant,
v.
Jacksonville Port Authority, Intervenor Defendant.

Case No. 3:17-cv-398-J-34MCR

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

Signed May 26, 2020


462 F.Supp.3d 1264

Kenneth B. Wright, Bledsoe, Jacobson, Schmidt, Wright & Sussman, Jacksonville, FL, for Plaintiff.

Brittany Berger, Brooks W. Moore, US Army Corps of Engineers, Jacksonville, FL, Claudia Antonacci Hadjigeorgiou, Stephen Finn, Brian M. Collins, U.S. Department of Justice, Washington, DC, for Defendant.

Emily Friend O'Leary, Foley & Lardner, LLP, Jacksonville, FL, Joshua Hawkes, Christopher M. Kise, Foley & Lardner, LLP, Tallahassee, FL, for Intervenor Defendant.

ORDER

MARCIA MORALES HOWARD, United States District Judge

The question before the Court in this action is a narrow one. The Court must determine whether the St. Johns Riverkeeper, Inc. has shown that the United States Army Corps of Engineers violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of a proposal to dredge the Lower St. Johns River. Significantly, "NEPA establishes procedures that a federal agency must follow before taking any action," but does not mandate any particular result. See Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (emphasis added). Thus, the Court is neither asked nor permitted to opine as to whether additional dredging of the St. Johns River is wise or unwise. Nor is the Court asked or permitted to conduct its own investigation or substitute its own judgment for that of the federal agency. See id. at 1360. Rather, the Court's " ‘only role [under NEPA] is to ensure that the agency has taken a hard look at the environmental consequences of the proposed action.’ " Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir. 1996) (alteration in original) (quoting Druid Hills Civic Ass'n v. Fed. Hwy. Admin., 772 F.2d 700, 709 (11th Cir. 1985) ). So long as the agency has followed the required procedures and considered the environmental consequences, it is not for this Court to "interject itself within the area of discretion of the executive" in deciding whether continued dredging of the St. Johns River is the "right" decision for the people of northeast Florida. Id. at 547 (quoting Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) ). As the entity challenging the Corps’ decision, Riverkeeper bears the difficult burden of establishing that the Corps

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failed to comply with NEPA's procedural requirements. The record before the Court compels a finding that Riverkeeper has not met this burden and as such, the Court must enter judgment in favor of the Corps.

Before the Court are the parties’ cross-motions for summary judgment. On August 1, 2019, Plaintiff St. Johns Riverkeeper, Inc. (Riverkeeper) filed Plaintiff's Combined Motion for Summary Judgment and to Supplement the Record and Incorporated Memorandum of Law (Doc. 69; Riverkeeper Motion). In accordance with the Court's scheduling Order (Doc. 67), Defendant United States Army Corps of Engineers (the Corps) and Intervenor Defendant Jacksonville Port Authority (JaxPort) filed their respective responses to the Riverkeeper Motion combined with cross-motions for summary judgment on September 19, 2019. See Federal Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (Doc. 71; Corps Motion); JaxPort's Combined Motion for Summary Judgment and Opposition to Riverkeeper's Motion for Summary Judgment (Doc. 73; JaxPort Motion). On October 3, 2019, Riverkeeper filed Plaintiff's Reply and Opposition to Defendant's and Intervenor's Motions for Summary Judgment (Doc. 75; Riverkeeper Response). Last, on October 24, 2019, the Corps and JaxPort filed replies in support of their respective Motions. See Federal Defendant's Reply in Support of its Cross Motion for Summary Judgment (Doc. 76; Corps Reply); JaxPort's Reply in Support of Motion for Summary Judgment (Doc. 77; JaxPort Reply). In addition, the Corps has filed the complete administrative record with the Court. See Notices of Filing (Docs. 25, 45, 58, 68).1 Given its size, the Administrative Record (A.R.) is not available electronically on CM/ECF and is instead contained on multiple USB drives on file with the Clerk of the Court. On May 12, 2020, the Court held a hearing on the Motions at which all parties were present via videoconference, the record of which is incorporated herein by reference. See Minute Entry (Doc. 84; Hearing). Accordingly, this matter is ripe for review.

I. Procedural History

Plaintiff, St. Johns Riverkeeper, Inc., is a nonprofit organization "dedicated to the protection, preservation, and restoration of the ecological integrity of the St. Johns River watershed for current users and future generations." See First Amended Complaint for Declaratory and Injunctive Relief (Doc. 23; Amended Complaint) ¶ 7. Riverkeeper "monitors the environmental quality of the St. Johns River and its tributaries" and works to educate its members

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and the public "about the River and its management." Id. Riverkeeper maintains that it "has over 1000 members who use and enjoy the waters of the St. Johns River including its tributaries and estuarine marshes for recreational, scientific, aesthetic, and commercial purposes including boating, fishing, scientific monitoring, and observing birds and wildlife." Id. ¶ 8. In addition, "[m]any Riverkeeper members live on the banks of or very near to the river and are directly affected by flooding and exacerbation of pollution caused by flooding." Id. The Jacksonville Port Authority joined this action as an Intervenor Defendant on July 10, 2017. See Order (Doc. 12). JaxPort "was created by legislation in 1963 to own and operate marine facilities in Duval County, Florida." See JaxPort's Answer to the First Amended Complaint and Affirmative Defenses (Doc. 31) at 1 n.1. Pursuant to the JaxPort Charter, JaxPort is now a political body of the City of Jacksonville. Id.

The Corps, in coordination with JaxPort, is currently proceeding with a plan to dredge a portion of the Jacksonville Harbor in the St. Johns River. As required by law, the Corps embarked upon an environmental study of the impacts of a deepening project and in April 2014 issued an environmental impact statement on the project. See April 2014 General Reevaluation Report II and Supplemental Environmental Impact Statement (A.R. at 323606; April 2014 Report).2 The United States Congress authorized construction of the dredging project in 2014, and the Assistant Secretary of the Army signed the Record of Decision on April 8, 2015. Two years later, on April 7, 2017, Riverkeeper initiated this action challenging the adequacy of the Corps’ consideration of the environmental impacts of the dredging project. See Complaint for Declaratory and Injunctive Relief (Doc. 1; Initial Complaint). In its six-count Initial Complaint, Riverkeeper alleged that the Corps failed to comply with the requirements of NEPA in considering the dredging project and preparing the April 2014 Report on that project. Specifically, Riverkeeper challenged the Corps’ study of the proposed project's environmental impacts on salinity and turbidity, the adequacy of its mitigation plan, and the economic analysis of the project's costs and benefits. Riverkeeper also alleged that the Corps failed to adequately provide for public participation, and failed to prepare a supplemental environmental impact statement to address changes in the economic landscape surrounding the project and non-compliance with state water quality standards for turbidity. However, Riverkeeper did not move for a preliminary injunction to prohibit the Corps from moving forward with the dredging project or otherwise seek expedited consideration of this case at that time.

On November 9, 2017, with leave of Court, Riverkeeper filed the Amended Complaint, which is the operative pleading before the Court. In the Amended Complaint, Riverkeeper added two new claims challenging the Corps’ failure to prepare an environmental impact statement for an 11-mile dredge (Count I), and its failure to prepare a supplemental environmental impact statement to address new information stemming from Hurricane Irma (Count II). Riverkeeper also expanded on its claim regarding the adequacy of the Corps’ environmental impacts analysis to include new allegations that, in addition to salinity and turbidity, the Corps failed to adequately study the impact of the proposed dredging project on flooding. Nearly a month after

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filing the Amended Complaint, Riverkeeper filed a motion seeking preliminary injunctive relief to enjoin the dredging project solely on the basis of the newly added claims in Counts I and II. See generally Plaintiff's Motion for Preliminary Injunction and Memorandum of Law (Doc. 24), filed December 4, 2017.

On January 19, 2018, the Court denied Riverkeeper's request for preliminary injunctive relief premised on Counts I and II of the Amended Complaint. See Order (Doc. 42;...

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2 practice notes
  • SOSS2, Inc. v. U.S. Army Corps of Eng'rs, Case No. 8:19-cv-462-T-23JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2020
    ...the "baseline conditions" to evaluate the project's effect); St. Johns Riverkeeper, Inc. v. United States Army Corps of Engineers , 462 F.Supp.3d 1256, 1274-79 (M.D. Fla. 2020) (describing the analysis of an suitable baseline as constituting the environmental concern). The parties mainly di......
  • Calvert v. Safeco Ins. Co. of Ill., Case No. 1:19-cv-60-AW-GRJ
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • May 27, 2020
    ..."other insurance policy that provides coverage." But under Florida law, undefined terms in insurance policies do not necessarily make 462 F.Supp.3d 1256 the language ambiguous. Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co. , 711 So. 2d 1135, 1139 (Fla. 1998). Instead, "[w]he......
2 cases
  • SOSS2, Inc. v. U.S. Army Corps of Eng'rs, Case No. 8:19-cv-462-T-23JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2020
    ...the "baseline conditions" to evaluate the project's effect); St. Johns Riverkeeper, Inc. v. United States Army Corps of Engineers , 462 F.Supp.3d 1256, 1274-79 (M.D. Fla. 2020) (describing the analysis of an suitable baseline as constituting the environmental concern). The parties mainly di......
  • Calvert v. Safeco Ins. Co. of Ill., Case No. 1:19-cv-60-AW-GRJ
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • May 27, 2020
    ..."other insurance policy that provides coverage." But under Florida law, undefined terms in insurance policies do not necessarily make 462 F.Supp.3d 1256 the language ambiguous. Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co. , 711 So. 2d 1135, 1139 (Fla. 1998). Instead, "[w]he......

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