State of La. v. Lee

• Decision Date: 14 September 1984
• Docket Number: Civ. A. No. 83-6126.
• Parties: STATE OF LOUISIANA, et al. v. Colonel Robert C. LEE, et al.
• Court: U.S. District Court — Eastern District of Louisiana

596 F. Supp. 645

STATE OF LOUISIANA, et al. v. Colonel Robert C. LEE, et al.

Civ. A. No. 83-6126.

United States District Court, E.D. Louisiana.

September 14, 1984.

COPYRIGHT MATERIAL OMITTED

Michael Osborne, New Orleans, La., Nicholas C. Yost, Washington, D.C., William J. Guste, Jr. Atty. Gen., Peter M. Arnow, Asst. Atty. Gen., Baton Rouge, La., for plaintiffs.

Fred E. Salley, William F. Baity, Asst. U.S. Atty., New Orleans, La., James T.B. Tripp, New York City, Joe LeBlanc, James A. Burton, New Orleans, La., for defendants.

OPINION AND ORDER

McNAMARA, District Judge.

This litigation arises out of the five-year extension of six shell dredging permits issued by the U.S. Army Corps of Engineers (Corps) pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and the Clean Water Act, 33 U.S.C. § 1344. The permits allow four shell dredging companies to dredge in two areas of southern Louisiana. The "Gulf Coast Area", consists of the Gulf of Mexico, East and West Cote Blanche, Four League and Vermilion Bays. The "Lake Area", consists of Lakes Pontchartrain and Maurepas.

The Plaintiffs, comprised of the State of Louisiana and several private environmentalist groups¹, allege that the Corps violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Three of the shell dredging companies subject to the permits — Louisiana Materials Co., Inc., Radcliff Materials, Inc. and Pontchartrain Materials Corp. — have intervened as defendants. The Complaint seeks: (1) a declaratory judgment that the Corps' extension of the permits without first having prepared an environmental impact statement (EIS) constitutes a violation of the NEPA and (2) an injunction requiring the Defendants to rescind the permit extensions and to prohibit any shell dredging in the affected areas until an adequate EIS is prepared.

Presently before the court are the following Motions:

(1) The Motion of Federal Defendants to Limit Review to Evidence Contained within the Administrative Record;

(2) The Motion of Defendants Col. Robert C. Lee, Lt. Gen. Joseph K. Bratton, William R. Gianelli and John O. Marshal, Jr. (collectively referred to as the Federal Defendants) to Dismiss the State of Louisiana as a Plaintiff;

(3) The Motion of Defendants-In-Intervention, Radcliff Materials, Inc., Pontchartrain Materials Corp. and Louisiana Materials Co., Inc. to Dismiss the State of Louisiana as a Plaintiff and to Dismiss the Complaint for Failure to Join an Indispensable Party Under Federal Rule of Civil Procedure 19; and

(4) Cross Motions of all parties for Summary Judgment.

On August 29, 1984, the parties presented oral argument in support of the above Motions and were advised that the matter would be taken under advisement. Having considered the applicable law and arguments of counsel, the court enters its findings below.

I. MOTION TO LIMIT REVIEW TO ADMINISTRATIVE RECORD

In this Motion, the Federal Defendants seek to restrict the court's review to the documents that were before the Corps when the decision not to prepare an EIS was made.²

All parties agree that the administrative record is indeed the "focal point" for determining the reasonableness of the Corps' action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court will consider evidence beyond the administrative record only when it is alleged that the administrative record is in some manner deficient or inadequate. Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir.1973).

In oral argument, all parties agreed that the administrative record is in all manners complete and adequate. Although conceding the adequacy of the present administrative record, the Plaintiffs suggest that this case is not procedurally in the posture to dispose of on the summary judgment motion brought by Defendants. According to the Plaintiffs, discovery is necessary to determine the weight given by the Corps to a 1977 report authored by the Gulf South Research Institute at the direction of the shell dredging companies. This report was a condition precedent to a time extension permit in 1974.

The court finds that further discovery is unnecessary because the administrative record does not indicate that the Corps merely "rubber-stamped" the GSRI report. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 643 (5th Cir.1983); Cf. Sierra Club v. Sigler, 695 F.2d 957, 962 n. 3 (5th Cir.1983). To the contrary, the administrative record reflects that the Corps made an objective independent assessment of the studies it accumulated, of which the GSRI report was one of many.³ Thus, there is no procedural bar to a final adjudication. Accordingly, the Motion to Limit Review to the Administrative Record is GRANTED.

II. MOTION TO DISMISS THE STATE OF LOUISIANA AS PARTY PLAINTIFF

This Motion, brought by both the Federal Defendants and the Defendants-In-Intervention, is based on several alternative premises. Due to a misconception by the Defendants of the nature of this action, all of the premises lack merit.

Parens Patriae Standing of Louisiana

Both the Federal Defendants and the Defendants-In-Intervention assert that the State of Louisiana is without parens patriae standing. Generally, it is true that a state cannot sue the Federal Government in a parens patriae capacity. Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The rule of Mellon is limited, however, to the factual circumstance of a state challenging the constitutionality of a federal statute. When the state relies upon the validity of a federal statute to assert a violation of it by an administrative agency charged with its enforcement, a state has parens patriae standing. State of Alabama v. Tennessee Valley Authority, 467 F.Supp. 791, 794 (N.D.Ala.1979), aff'd. in pertinent part, 636 F.2d 1061 (5th Cir.) cert. denied 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); Washington Utilities & Transportation Commission v. F.C.C., 513 F.2d 1142, 1153 & n. 16 (9th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

The exception to the rule of Mellon applies to this case; the State of Louisiana in fact relies on the NEPA in an effort to avail itself of the NEPA's protection. Furthermore, it is apparent that the requisite quasi-sovereign interests⁴ of Louisiana are implicated in this litigation. Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44 L.Ed. 347 (1900); State of Alabama, 467 F.Supp. at 794. Accordingly, the court finds that the State of Louisiana has parens patriae standing.

Equitable Estoppel

In advancing this argument, the Defendants-In-Intervention contend that it is inconsistent for the State of Louisiana to appear as a plaintiff in this litigation when state agencies have already, pursuant to state law, let water-bottoms and issued coastal use permits to the shell dredging companies.⁵ The State of Louisiana counters with an argument that the compliance of the shell dredging companies with state law is irrelevant to an alleged violation of the NEPA.

The court finds the rejoinder persuasive. The fact that the dredging companies complied with state law by attaining the approval of various state agencies in acquiring leases and permits, and, assuming that the Attorney General did not comment upon the effects of dredging prior to the issuance of the "state" permits, is of no moment to the alleged violation of the procedural requirements of the NEPA, that is, the failure to file an EIS. The course of conduct presently pursued by the State of Louisiana — requiring the Corps to prepare an EIS — is not necessarily inconsistent with the approval of leases and permits pursuant to state law. Therefore the actions of the Department of Natural Resources (DNR) and the Wildlife and Fisheries Commission (WFC) cannot be construed to be an implied waiver by the State of Louisiana of any benefits it may have under the NEPA. As such, the initial element of equitable estoppel — a representation by the plaintiff — is lacking. See Zimeri v. Citizens & Southern International Bank of New Orleans, 664 F.2d 952, 955 (5th Cir.1981). Nor can it be said that the State of Louisiana has engaged in a prolonged course of conduct that would induce a "justifiable reliance" by the dredging companies that the State of Louisiana would not oppose the Corps' actions in this case. Cf. Michigan Wisconsin Pipeline Co. v. Williams-McWilliams Co., 551 F.2d 945, 951 (5th Cir.1977).

Authority of State of Louisiana and Attorney General to Bring Action

The Defendants-In-Intervention also contend that the State of Louisiana and its Attorney General lack the authority to bring this action because it conflicts with the true public policy of Louisiana.

The Attorney General of Louisiana is empowered with broad authority to prosecute actions in the interest of the state. La. Const. Art. 4, § 8 (1974); State v. Texas Co., 199 La. 846, 7 So.2d 161, 162 (1942); Moity v. Louisiana State Bar Association, 414 F.Supp. 180, 181 n. 3 (E.D.La.), aff'd., 537 F.2d 1141 (1976).

The shell dredging companies contend that the public policy of Louisiana is expressed in La.R.S. 56:441. This statute merely provides that the Wildlife and Fisheries Commission "may sell and grant to any person the right and privilege of taking shell deposits from any of the shell reefs" located in Louisiana and delineates the prerequisites to attaining such a right. Id.

On the other hand, Louisiana made positive expressions in regard to protecting the state's natural resources and environment. In particular, Article 9, § 1 of Louisiana's Constitution (1974) provides:

"The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The

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