Texas Committee On Natural Resources v. Van Winkle

• Decision Date: 10 April 2002
• Docket Number: No. CIV.A. 4:00CV384-Y.,CIV.A. 4:00CV384-Y.
• Citation: 197 F.Supp.2d 586
• Parties: TEXAS COMMITTEE ON NATURAL RESOURCES, et al. v. Major General Hans VAN WINKLE, et al.
• Court: U.S. District Court — Northern District of Texas

197 F.Supp.2d 586

TEXAS COMMITTEE ON NATURAL RESOURCES, et al. v. Major General Hans VAN WINKLE, et al.

No. CIV.A. 4:00CV384-Y.

United States District Court, N.D. Texas, Fort Worth Division.

April 10, 2002.

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James B. Blackburn Jr., Blackburn Carter, Houston, TX, for Plaintiffs.

Lloyd Rex Crosswhite, Attorney at Law, U.S. Army Corps of Engineers, Howard Alan Borg, Assistant U.S. Attorney, Fort Worth, TX, for Defendants.

ORDER PARTIALLY GRANTING PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

MEANS, District Judge.

Pending before the Court are two cross motions for summary judgment filed on July 6, 2001. Having carefully considered the motions, responses, and replies, the Court concludes that both motions should be PARTIALLY GRANTED in that Defendants¹ are entitled to summary judgment on all counts except count III(1), and upon which Plaintiffs² are entitled to summary judgment on count III(1).

I. BACKGROUND

This suit arises out of Defendants' intent to construct the Dallas Floodway Extension ("DFE") project, a comprehensive floodcontrol project on the Trinity River running through the eastern portion of Dallas, Texas, and, most notably, immediately east and south of downtown Dallas. Plaintiffs allege that the Army Corps of Engineers's 1999 Environmental Impact Statement ("EIS") for the DFE project failed to comply with the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. Plaintiffs seek an injunction that requires the Army Corps of Engineers ("COE") to prepare a new EIS before construction on the DFE project can proceed.

The DFE project was originally authorized for construction in 1965 by Section 301 of the Rivers and Harbors Act (P.L. 89-298) as one of five local flood protection projects. (Defs.' Mem. Br. in Supp. of Cross Mot. for Summ. J. ("Defs.' Mem.") at 1; Hard Copy Administrative Record ("HCAR") at 3.) In the early 1980s, however, the project was placed on the inactive list after being rejected by Dallas voters in a bond election. (Pls.' Br. in Supp. of Mot. for Summ. J. ("Pls.' Br.") at 2.)

In 1987, due to concerns over flooding and the potential for increased development, the COE undertook a comprehensive review of flooding on the Trinity River and issued a regional Environmental Impact Statement ("1987 REIS") that identified the existing flood levels on the Trinity River from above Fort Worth to below Dallas and was to serve as a permitting strategy for the Trinity River and its tributaries.³ (Pls.' Br. at 1; Defs.' Mem. at 2.) In a Record of Decision, dated April 29, 1988 ("1988 ROD"), the recommendations of the 1987 REIS were adopted by the District Engineer for implementation by the Forth Worth District COE. (Defs.' Mem. at 2.) According to Plaintiffs, the "1988 ROD established policies that were to be followed by the Corps and by applicants for Corps' permits to prevent the flood levels associated with the Trinity River from increasing." (Pls.' Br. at 1.)

Following significant flood events in 1989 and 1990, the City of Dallas requested reactivation of the authorized DFE project. (Defs.' Mem. at 2; Pls.' Br. at 2.) As a result, the project was reactivated in 1990, provided that it would be reevaluated prior to construction. (Defs.' Mem. at 2.) During the early stages of the reevaluation effort in the 1990s, the COE determined that the original 1965 DFE project was no longer economically justifiable because there "was not enough flood damage benefits in the DFE study area to justify either the cost of the original project, or the cost of any other alternative considered."⁴ (Pls.' Amend. Compl. ("Pls.' Compl.") at 20, 30; Pls.' Br. at 2; Defs.' Amend. Answer ("Defs.' Answer") at 10, 16.)

The authorization for the construction of the DFE project was modified by the 1996 Water Resources Development Act (P.L. 104-303)⁵ and by the Water Resources Development Act of 1999 (P.L. 106-53).⁶ (Defs.' Mem. at 2.) In addition, the COE developed new computer models for the Upper Trinity River that computed flood levels at several feet higher than those computed by earlier computer models used in the 1987 REIS.⁷ (Pls.' Br. at 2; Defs.' Answer at 20.) "As a result of this newly computed flood level being so much higher than previous calculations, the existing Dallas Floodway Levee System ("Dallas Floodway")⁸ would now be overtopped, resulting in flooding of downtown Dallas." (Pls.' Br. at 2; see Pls.' Compl. at 20; Defs.' Answer at 11.) According to Plaintiffs "[t]his was an alarming development because previous Corps' studies as late as 1987 had found the existing Dallas Floodway system to be more than adequate to protect downtown Dallas from flooding during even the most severe of flood events, the Standard Project Flood ("SPF")."⁹ (Pls.' Br. at 3.)

Between 1991 and 1998, the COE evaluated several alternatives to the DFE project.¹⁰ (Defs.' Mem. at 3.) In a resolution dated August 28, 1996, the City of Dallas selected a locally preferred plan ("LPP"), known as "The Chain of Wetlands Plan,"¹¹ for the project and also approved the construction of SPF two-foot levees to protect the Lamar Street and Cadillac Heights areas. (HCAR at 4.) This combination plan became known as "The Chain of Wetlands Plus Levees Plan" and was adopted by the City of Dallas as the final LPP, by a resolution dated March 26, 1997. (HCAR at 117.) Recreational features were later also incorporated into the Plan. (Defs.' Mem. at 3; HCAR at 102, 121.)

The final LPP was eventually adopted as the Federally Supportable Plan. (Defs.' Mem. at 4.) In 1998, the COE released a Draft General Reevaluation Report and Integrated Environmental Impact Statement for public review and comment. (HCAR 1505-2614.) After this review and comment, the District Engineer for the Fort Worth District approved a Final General Reevaluation Report and Integrated Environmental Impact Statement for the DFE project ("1999 EIS"). (Defs.' Mem. at 4; HCAR 1-1504.) On December, 1, 1999, Major General Hans A. Van Winkle signed a Record of Decision ("1999 ROD"), finding the 1999 EIS "for the DFE suitable to use as a plan for implementation of flood damage reduction, environmental restoration and recreation at Dallas, Texas." (Defs.' Mem. at 4.) The purpose of the DFE project is to extend flood protection southward and eastward (downstream) from the end of the Dallas Floodway, which is the levee system that bounds the Trinity River and currently protects downtown Dallas, to Five Mile Creek.¹² (Pls.' Br. at 1; HCAR at 16253.)

Plaintiffs, in their complaint, assert that the 1999 EIS violated the APA and NEPA in four ways: (1) the COE violated the APA through improper manipulation of computer model estimates of flood levels along the Trinity River that raised the elevation of the SPF as much as seven feet higher than previous model estimates; (2) the COE violated the NEPA by failing to fully disclose certain environmental impacts and economic benefits of the DFE project and failing to discuss alternatives to the DFE project; (3) the COE violated the NEPA by failing to consider "connected actions" under 40 C.F.R. § 1508.25 and "cumulative impacts" under 40 C.F.R. § 1508.7; and (4) the COE violated the APA by failing to follow its own 1988 ROD.¹³ (Pls.' Compl. at 2-4.)

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

In the usual case, summary judgment is proper when the record, viewed in the light most favorable to the non-moving party, establishes that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Hill v. London, Stetelman, & Kirkwood, Inc., 906 F.2d 204, 207 (5th Cir.1990); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "However, in a case such as this, where the Court is reviewing the decision of an administrative agency, a motion for summary judgment `stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review.'" Piedmont Envtl. Council v. United States Dep't of Transp., 159 F.Supp.2d 260, 268 (W.D.Va.2001) (citing Krichbaum v. Kelley, 844 F.Supp. 1107, 1110 (W.D.Va.1994)). As a result, the movant's burden in proving his motion for summary judgment is similar to his ultimate burden on the merits. See Piedmont Envtl. Council, 159 F.Supp.2d at 268.

"Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record ..., even though the Court does not employ the standard of review set forth in Rule 56." Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995). "In reviewing administrative agency decisions, the function of the district court is to determine whether as a matter of law, evidence in the administrative record permitted the agency to make the decision it did, and summary judgment is an appropriate mechanism for deciding the legal question of whether an agency could reasonably have found the facts as it did." The Sierra Club v. Dombeck, 161 F.Supp.2d 1052, 1064 (D.Ariz.2001); see City & Cty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997).

B. APA Standard

Section § 702 of the APA provides a way for persons "suffering legal wrong because of agency action,¹⁴ or adversely affected or aggrieved by agency action within the meaning of a relevant statute," to obtain judicial review of that action. 5 U.S.C.A. § 702 (West 1996). Section 706 of the APA, which sets out the scope of judicial review, states:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an...