Friends of the Earth v. U.S. Army Corps of Engine., CIV. A. 98-0801.

109 F.Supp.2d 30

FRIENDS OF THE EARTH, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.

Friends of the Earth, Inc., et al., Plaintiffs, v. United States Army Corps of Engineers, Defendant.

Friends of the Earth, Inc., et al., Plaintiffs, v. United States of Army Corps of Engineers, Defendant.

No. CIV. A. 98-0801.

No. 98-1699.

No. 98-2439.

United States District Court, District of Columbia.

August 10, 2000.

William J. White, Earth Justice Legal Defense Fund, Washington, DC, Natalie M. Walker, Carries Esther Boykin, Earth Justice Legal Defense Fund, New Orleans, LA, for Friends of the Earth, Inc.

Cherie L. Rogers, Ann D. Navaro, U.S. Dept. of Justice, Environment & Natural

Resources Division, Washington, DC, for United States Army Corps of Engineers.

OPINION

PAUL L. FRIEDMAN, District Judge.

When it passed the National Environmental Policy Act of 1969 ("NEPA"), Congress declared a "broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). "The sweeping policy goals announced in § 101 of NEPA are ... realized through a set of `action-forcing' procedures that require that agencies take a `hard look at environmental consequences.'" Id. at 350, 109 S.Ct. 1835 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). In particular, NEPA requires a federal agency to assess the potential environmental impacts of any "major federal action" prior to going forward. See 42 U.S.C. § 4332. The "twin aims" of this requirement are to "place upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action" and to "inform the public that [the agency] has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citations omitted).

Plaintiffs bring these lawsuits because they claim that defendant, the United States Army Corps of Engineers (the "Corps"), did not further the twin aims of NEPA when it determined that NEPA did not require an environmental impact statement ("EIS") prior to the permitting of three casinos on the Mississippi coast. In particular, plaintiffs maintain that the Corps failed to consider a range of direct environmental impacts, indirect impacts, and cumulative impacts of the projects when it found that the three casino projects would have no significant impacts on the environment that would require evaluation through an EIS. After careful consideration of the parties' cross-motions for summary judgment, the submissions of defendant-intervenors, the administrative records and the arguments of counsel at the May 19, 2000 motions hearing in these matters, the Court concludes that the Corps failed to consider adequately a number of the potential impacts of the three projects and that an EIS was required for all three projects.¹ The Court therefore will grant plaintiffs' motion for summary judgment.

I. BACKGROUND

By virtue of a strange quirk of Mississippi law, gambling establishments in Mississippi may only be built on floating vessels. See MISS.CODE ANN. § 97-33-1(a); MISS.CODE ANN. § 27-109-1. As a consequence, over twenty casinos have been permitted, and at least fourteen have been built, on large floating barges along the Mississippi coast in the past decade. The most recent projects to move forward are the three casinos at issue in these cases: the Casino World casino; the Circus Circus casino; and the Royal D'Iberville casino. The Casino World and Circus Circus projects are proposed to be built on the relatively undeveloped coast of the St. Louis Bay, while the Royal D'Iberville project is proposed for the more developed Bay of Biloxi.

Because of their location, all three proposed casinos would have an impact on navigable waters. The casino developers therefore were required to apply to the Corps for a permit under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the Rivers and Harbors Act. See 33 U.S.C. § 403.² Under NEPA, the granting of such permits may constitute "major federal actions significantly affecting the quality of the human environment" that require the Corps to conduct an EIS. 42 U.S.C. § 4332(C). In order to determine whether the granting of each of the casino permits was a "major federal action," the Corps undertook an environmental assessment ("EA") for each project. See 40 C.F.R. § 1501.4(b). In each case, the Corps made a "finding of no significant impact" ("FONSI") and therefore determined that no EIS was required. See Casino World Administrative Record ("CWAR") at 1087-1134; Circus Circus Administrative Record ("CCAR") at 2385-2440; Royal D'Iberville Administrative Record ("RDAR") at 299-335.

A. Casino World

The Corps' evaluation of the Casino World project began with the Hancock County Port and Harbor Commission's submission of an application for the necessary permit in May of 1996. CWAR at 8.³ The permit application described a casino development that included the mooring of two 600 foot long casino barges, a floating gazebo that is 150 feet in diameter, and an elevated access road to the barges and gazebo. CWAR at 31. The casino barges, gazebo and road would cover about 4.8 acres of water bottom. CWAR at 31. The proposed casino development also includes a 450-room hotel, a 2000-seat entertainment facility, a tennis court complex, a parking garage, a golf course and a recreational vehicle park to be built on the uplands adjacent to the moored casino. CWAR at 31.

On June 14, 1996, the Corps issued a Public Notice of the Casino World application. Over the next two years, the Corps received numerous comments, including comments from the U.S. Environmental Protection Agency ("EPA"), the Fish and Wildlife Service ("FWS"), the National Marine Fisheries Service ("NMFS"), and the Mississippi Department of Marine Resource ("MDMR"), all suggesting that the Corps prepare an EIS. These agencies all expressed concern regarding the potential environmental impacts of the Casino World development, including the potential impacts on water quality and habitat, the secondary impacts of the upland development, and the cumulative impacts of the numerous casino projects along the coast. See CWAR 540-42; 612-13; 616; 641-46; 818-21. The Corps disagreed with these comments and issued its EA and FONSI on March 3, 1998. The permit was issued on March 25, 1998. See CWAR 119.

B. Circus Circus

As proposed, the Circus Circus casino would be located just to the east of the Casino World project on the St. Louis Bay. The Pine Hills Development Partnership, the organization hoping to develop the Circus Circus site, applied for a permit under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act in May of 1996. The Circus Circus proposal encompasses a floating casino with dimensions of approximately 300 feet by 500 feet along with numerous landside facilities, including a conference center, theaters, food and beverage courts, entertainment facilities, a pedestrian rotunda, a hotel and surface and structured parking. See CCAR at 298.

Once again, the Corps issued a Public Notice respecting the Circus Circus application on June 12, 1996. Once again, the Corps received extensive comments, including comments from the EPA, FWS, NMFS, and MDMR requesting that the Corps conduct an EIS to evaluate the direct, indirect and cumulative impacts of the project. The FWS, for example, expressed concern about potential impacts on marsh and tidal waters, wetlands, water quality, aquatic life, waterbottoms, upland forest habitat and cumulative habitat loss. See CCAR at 574. In addition, the MDMR expressed its opinion that "the project will ... have a much greater impact to the environment than has been disclosed or addressed by the applicant." CCAR at 727. After recalling the permit for further investigation after its initial issuance, the Corps once again rejected the requests for an EIS it received from the other agencies and issued its EA and FONSI, as well as the permit, on February 17, 1998.

C. Royal D'Iberville

The third project at issue — the Royal D'Iberville casino project — applied for permits under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act on September 25, 1997. The work proposed in navigable waters entailed a 462 foot by 120 foot floating casino barge, a concrete ramp and deck, a steel bulkhead, and four mooring caissons. See RDAR at 153. The proposed project also includes the upland construction of a porte cochere, a parking garage and parking lot, and a 300-room hotel. See RDAR at 153.

The Corps published a notice of the Royal D'Iberville application on March 23, 1998.⁴ Two federal agencies — the FWS and the NMFS — and the Mississippi Department of Wildlife, Fisheries and Parks submitted comments opposing the issuance of the permit in the absence of the preparation of an EIS. See RDAR 218-23; 224, 229. The commenting agencies again raised concerns regarding the impacts of the project on aquatic habitat and water quality as well as the indirect and cumulative impacts of the project. The Corps nevertheless released a FONSI on October 6, 1998, determining that an EIS was not warranted, and issued the permit the next day.

D. Proposed Programmatic EIS

During the pendency of the permit applications, the EPA and the Department of the Interior also expressed concern regarding the cumulative casino development along the Mississippi coast to the Secretary of the Army. In response, Deputy Assistant Secretary of the Army Michael L. Davis issued a memorandum on March 4, 1998 instructing the Corps that "pending completion of a Programmatic Environmental Impact Statement (PEIS) for casino development in Harrison and Hancock counties, all pending and future...