Black Warrior Riverkeeper Inc. v. U.S. Army Corps of Eng'rs

BLACK WARRIOR RIVERKEEPER INC., ET AL., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, ET AL., Defendants.

2:17-cv-00439-LSC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 14, 2018

MEMORANDUM OF OPINION

Before the Court are Plaintiffs', Black Warrior Riverkeeper Inc. ("Riverkeeper") and Defenders of Wildlife ("DOW"), (collectively "Plaintiffs") motion for summary judgment (doc. 32), and Defendants', U.S. Army Corps of Engineers ("Corps"); Lt. General Todd T. Semonite ("Semonite"), in his official capacity as the Corps's Commanding General and Chief of Engineers; Col. James Delapp ("Delapp"), in his official capacity as Commander and District Engineer of the Corps's Mobile District office; the U.S. Fish and Wildlife Service ("FWS");¹ Ryan Zinke ("Zinke"), in his official capacity as Secretary of the United States Department of the Interior; and Greg Sheehan, in his official capacity as FWS's Acting Director, and Jim Kurth, in his official capacity as acting director of the FWS (collectively, "Defendants"), cross motion for summary judgment (doc. 33). For the reasons stated below, Plaintiffs' motion (doc. 32) is due to be denied and the Defendants' cross motion (doc. 33) is due to be granted.

I. BACKGROUND²

In November 2014, an entity acting on behalf of Black Warrior Minerals, Inc. ("BWM") submitted a request to the Corps to make a jurisdictional determination to allow BWM to expand its mining operations in Jefferson County, Alabama in theLocust Fork Watershed. The proposed project was the BWM Mine #2, a 1293-acre surface coal mine within the Lower and Middle Locust Fork watershed.³ The Corps approved of the boundaries and began the process of reviewing the proposed action of granting a discharge permit under § 404 of the Clean Water Act ("CWA").⁴ To comply with requirements of the CWA and the National Environmental Policy Act ("NEPA"),⁵ the Corps examined potential cumulative impacts and multiple mitigation measures to determine whether the project could lead to significant impacts on the environment.

In crafting a baseline, the Corps determined that active surface mining operations, comprising seventeen (17) active surface coal mines, including BWMMine #1, already made up 1.603% of the total acreage in the Middle Lower and Middle Locust Fork watersheds authorized and regulated by the Surface Mining Commission and Regulation Act ("SMCRA"), which is administered by the Alabama Surface Mining Commission ("ASMC"). Authorizing Mine #2 would amount to an additional 0.003% of the land within the watersheds. The Corps also acknowledged the decades of mining that had occurred in the Locust Fork watershed prior to the SMCRA's passage, and it used the impacts of those abandoned mines for baseline water quality and aquatic habitat values in the watershed. Though acknowledging various environmental harms from the past mining projects, the Corps also found that the watershed remains heavily forested⁶ and provides a functioning ecosystem.

The Corps also considered how the permittee would be required to employ compensatory mitigation measures to offset the environmental impacts that could result. To begin, project applicants are already required to use Best Management Practices imposed by the Alabama Department of Environmental Management("ADEM"), employing water treatment processes prior to discharge of water from the mining site. The permit would also require compensatory mitigation by the permittee, such as taking measures that would enhance and preserve natural buffers along the southern boundary of the proposed mine. In light of these required mitigation measures, along with the relatively small cumulative impact that the Corps believed the BWM Mine #2 represented, it was concluded that the proposed mine would not lead to a significant impact on the environment. For this reason, Defendants elected to issue the CWA § 404 permit and to forgo making an Environmental Impact Statement ("EIS").

In addition to considering the project's potential impacts on the environment, the Corps also considered whether the project might affect listed species or their critical habitats under the Endangered Species Act ("ESA").⁷ Reasoning that areas with known listed species were too distant from the mining site to be affected, the Corps defined the relevant action area to encompass only themining site itself. Noting, among other things, that the mining site has "no continuous flowing water," Corps AR 1232,⁸ the Corps then concluded that there were no listed species or critical habitats within the action area that could be affected. Having found that no effects upon listed species could result, the Corps chose not to consult with the FWS about its issuance of the CWA § 404 permit.

Based on the Corps's issuance of the CWA § 404 permit, Plaintiffs brought suit to challenge the procedures employed. Plaintiffs claimed that the Corps's conclusions were arbitrary and capricious, in violation of the Administrative Procedures Act ("APA").⁹ More specifically, Plaintiffs brought claims under the ESA, the CWA, and the NEPA.

With respect to the ESA claim, Plaintiffs added that claim when they amended their complaint on May 23, 2017. Plaintiffs had mailed written notice to both the Corps and the Secretary of the Interior ("the Secretary") on March 21, 2017. The Corps received that written notice on March 24th, and the Secretaryreceived it on March 27th via first class mail. Ultimately, Plaintiffs added their ESA claim 60 days after the Corps had received notice but only 57 days after the Secretary received it.

II. STANDARD

In reviewing agency action, the court may set aside the action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act. This is an "exceedingly deferential" standard, Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), such that a court's role is only "to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation and internal quotation marks omitted). Agency action may be set aside only "for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached." Citizens for Smart Growth v. Sec'y of the Dep't of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012) (quoting Fund for Animals, 85 F.3d at 541-42); see also Nat. Res. Def. Council v. Nat'l Park Serv., 250 F. Supp. 3d 1260, 1283 (M.D. Fla. 2017) (noting "[t]his standard of review provides a court with theleast latitude in finding grounds for reversal"). Particular deference is due when an agency "is making predictions, within its area of special expertise, at the frontiers of science," and thus a "court must generally be at its most deferential" in such instances. Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-49 (11th Cir. 2012) (citation omitted). As long as the record supports the agency's decision, that decision should be upheld even if the record could support alternative findings. Ark. v. Okla., 503 U.S. 91, 112-13 (1992). However, the "failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct," and "courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Simmons v. Block, 782 F.2d 1545, 1549-1550 (11th Cir. 1986) (citations omitted) (affirming decision to set aside agency action as arbitrary and capricious where agency "followed neither course of action specified in the regulations"). The party challenging the agency action bears the burden of proof. See, e.g., Nat. Res. Def. Council, 250 F. Supp. 3d at 1283 (citing Druid Hills Civic Ass'n v. Fed. Highway Admin., 772 F.2d 700, 709 n.9 (11th Cir. 1985)).

III. DISCUSSION

A. Plaintiffs' ESA Claim

As an initial matter, there is a question as to whether Plaintiffs followed the proper procedure in adding their claim under the ESA. A citizen may not commence an action under the ESA "prior to sixty days after written notice . . . has been given" to the Secretary of the Interior "and to any alleged violator." 16 U.S.C. § 1540(g)(2)(A)(i) (2012). Courts have interpreted this provision strictly to ensure that all parties have "an opportunity to resolve the dispute and take any necessary corrective measures before a resort to the courts." Waterkeeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 29 (1st Cir. 2001); see S.W. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) ("A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA."); see also Nat'l Parks & Conservation Ass'n Inc. v. TVA, 502 F.3d 1316, 1329 (11th Cir. 2007) (discussing a similar notice provision under the CWA). The "requirement is jurisdictional,"¹⁰ and non-compliance warrants dismissal of the case. Alabama v. U.S. Army Corps of Eng'rs, 441 F. Supp.2d 1123, 1129 (N.D. Ala. 2006) (citing Sw. Ctr. for Biological Diversity, 143 F.3d at 520 and Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996)); see also Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988) ("[The ESA's] notice requirement is jurisdictional . . . .").¹¹

The parties do not dispute any of the facts regarding Plaintiffs' attempt to provide written notice of intent, but there remains a legal question as to when the 60-day notice period begins where a plaintiff sends notice through the mail. If the notice period began on the postmark date, then Plaintiffs' filing of the amended complaint 63 days after mailing notice would be sufficient. But if the notice period began upon receipt by all parties, then the fact that Plaintiffs filed their amended...