Harrison Cnty. v. Miss. River Comm'n

HARRISON COUNTY, MISSISSIPPI; HANCOCK COUNTY, MISSISSIPPI; CITY OF BILOXI, MISSISSIPPI; CITY OF D'IBERVILLE, MISSISSIPPI; CITY OF WAVELAND, MISSISSIPPI; MISSISSIPPI HOTEL AND LODGING ASSOCIATION; MISSISSIPPI COMMERCIAL FISHERIES UNITED, INC.; PASS CHRISTIAN, MISSISSIPPI; CITY OF DIAMONDHEAD, MISSISSIPPI PLAINTIFFS v. MISSISSIPPI RIVER COMMISSION and U.S. ARMY CORPS OF ENGINEERS DEFENDANTS

No. 1:19cv986-LG-RPM

United States District Court, S.D. Mississippi, Southern Division

September 13, 2021

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE

BEFORE THE COURT are the [16] Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by the defendants, Mississippi River Commission (“MRC”) and U.S. Army Corps of Engineers (“the Corps”) and the [25] Motion for Leave to File Second Amended Complaint filed by the plaintiffs, Harrison County Mississippi, Hancock County, Mississippi, City of Biloxi Mississippi, City of D'Iberville, Mississippi, City of Waveland, Mississippi, Mississippi Hotel and Lodging Association, Mississippi Commercial Fisheries United, Inc. Pass Christian, Mississippi, City of Diamondhead, Mississippi. The parties have fully briefed the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds, as more fully explained below, that the plaintiffs' claims against the MRC should be dismissed pursuant to Rule 12(b)(6) because the MRC is not an agency capable of being sued under the Administrative Procedure Act (“APA”). In addition, the plaintiffs' NEPA claims against the Corps must be dismissed for lack of jurisdiction because, at this time, no major federal action remains to occur. The plaintiffs' Motion for Leave to File an Amended Complaint is denied as moot.

BACKGROUND

In 1927, the Mississippi River “swell[ed] to unprecedented levels, ” resulting in one of the worst natural disasters in United States history. Encyclopedia Britannica https://www.britannica.com/event/Mississippi-River-flood-of-1927 (last visited Sept. 2, 2021). More than 23, 000 square miles of land were submerged, hundreds of thousands of people were displaced from their homes, and hundreds of people lost their lives. Id. It took at least two months for the floodwaters to completely subside. Id.

The following year, Congress enacted the Flood Control Act of 1928, which authorized the creation of the Mississippi River and Tributaries Project (“the MR&T”). 33 U.S.C. § 702a. The Corps, under the direction of the Secretary of the Army and supervision of the Chief of Engineers, is charged with designing and constructing flood control projects. See 33 U.S.C. § 701b. The basis of the MR&T was a report drafted by Major General Edgar Jadwin, who served as Chief of Engineers for the Corps. (Pls.' Supp. Mem., Ex. 1, ECF No. 85-1).

As Secretary of War Dwight F. Davis explained while submitting Major General Jadwin's report to President Calvin Coolidge, the MR&T was “designed to take care of the maximum flood estimated by experts to be possible.” (Pls.' Supp. Mem., Ex. 1, ECF No. 85-1). This maximum probable flood is now referred to as “the project design flood.” Given the river's natural tendency to flood, the MR&T was designed with the intention of leading the river, rather than attempting to drive it or force it in a particular direction. (Id.) The MR&T is generally composed of four features: (1) levees and floodwalls, (2) channel improvement and stabilization, (3) tributary basin improvements, and (4) floodways (or spillways). See U.S. Army Corps of Engineers Mississippi Valley Division Website, https://www.mvd.usace.army.mil/About/Mississippi-River-Commission-MRC/Mississippi-River-Tributaries-Project-MR-T/ (last visited Sept. 9, 2021). The floodways and spillways include the Morganza, the Bonnet Carre, the Birds-Point New Madrid, and the Atchafalaya. Id.

The Bonnet Carre Spillway, which is the primary subject of this litigation, was constructed near Norco, Louisiana. It was designed to divert water from the Mississippi River into Lake Pontchartrain in an effort to prevent flooding in the city of New Orleans. After entering Lake Pontchartrain, large amounts of the water diverted by the Spillway flows into the Mississippi Sound. The Spillway is controlled by a needle dam. (Pls.' Supp. Mem., Ex. 2, ECF No. 85-2). The needles are used to increase or decrease the amount of water flowing through the Spillway. The Corps completed construction of the Spillway in 1932. (Pls.' Supp. Mem., Ex. 4 at 137, ECF No. 85-4). The Corps' 30(b)(6) designee, Joey Windham, testified that precipitation levels dictate the frequency of openings of the Bonnet Carre, and precipitation levels are cyclical in nature. (Pls'. Supp. Mem., Ex. 4 at 321-22, ECF No. 85-4). The Corps opened the Spillway in January 1937 for 48 days, March 1945 for 57 days, February 1950 for 38 days, April 1973 for 75 days, April 1975 for 13 days, April 1979 for 45 days, May 1983 for 35 days, March 1997 for 31 days, April 2008 for 31 days, May 2011 for 42 days, January 2016 for 23 days, March 2018 for 23 days, February 2019 for 44 days, May 2019 for 78 days, and April 2020 for 28 days. (Defs.' Supp. Reply, Ex. C, ECF No. 86-3). Therefore, on average, the Spillway has been opened every 6 years over an 89-year period. However, 6 of the 15 openings during that 89-year period occurred in the past 10 years, and 4 of the openings occurred between 2018 and 2020.

Major General Jadwin explained that operation of the Bonnet Carre should “leave 1, 250, 000 second-feet to go by New Orleans and should prevent the stage at Carrollton from rising above 20 on the gauge.” (Pls.' Supp. Mem., Ex. 1 at 26-27, ECF No. 85-1). He noted, that in December 1927, that “[p]ast records indicate that [the Bonnet Carre's] operation will be required about once in five years; and for a period of from one to three months during each flood.” (Id.) In a separate report entitled “Spillways on the Lower Mississippi River, ” Major General Jadwin stated that “it is anticipated that the [Bonnet Carre] will be used infrequently and for comparatively short periods.” (Pl.'s Supp. Mem., Ex. 3, ECF No. 85-3). Major General Jadwin's estimates concerning operation of the Bonnet Carre revolved around his concern over the amount of silt that would be deposited in Lake Pontchartrain. (See Pls.' Supp. Mem., Ex. 1, ECF No. 85-1). He also noted that discolored water may enter the Mississippi Sound, but he did not expect silt deposits to be carried that distance. (Id.) A 1932 Report to Congress prepared by Major D.O. Elliott gave a similar estimate for operation of the Spillway based on past records: “one to three months on an average of once in five years.” (Pl.'s Supp. Mem., Ex. 2, ECF No. 85-2). He further explained, “It is expected that the maximum flow of 250, 000 cubic feet per second through the floodway will provide an ample margin of safety for New Orleans while at the same time no inconvenience will be caused due to the raising of Lake Pontchartrain levels.” (Id.)

In 1970, Congress enacted the National Environmental Policy Act (“NEPA”), which requires all federal agencies to prepare an Environmental Impact Statement (“EIS”) for every “major Federal action.” 42 U.S.C. § 4332(2)(C). The Corps prepared an EIS related to the MR&T in 1976. The EIS noted:

Mississippi River waters discharged through the spillway suppress salinity levels in Lake Pontchartrain, Lake Borgne, and Mississippi Sound. The areal extent of the influence is dependent upon the volume of water flowing through the structure and the duration of the operation. During periods of low salinity, many estuarine fishes and crustaceans migrate from the Lake Pontchartrain system as the salinity content decreases to a level below their respective tolerances. Accordingly, the number of fresh-water organisms increases as the lake becomes favorable for their occupation. Sessile species such as commercial oysters cannot migrate to more favorable waters and many perish. Oyster mortality has been observed in Lakes Pontchartrain and Borgne and Mississippi Sound. However, the influx of river waters enhances oyster production on the oyster beds south of the area of mortality reducing high salinities and supplying nutrients.

Historically, flooding of the Pontchartrain - Borgne Basin occurred each time the Mississippi River topped its natural levees. These occurrences provided sediments and nutrients to a dynamic ecosystem and nourished estuarine flora and fauna. In essence, the discharge of Mississippi River water into the Lake Pontchartrain-Borgne-Mississippi Sound system by operation of the Bonnet Carre Spillway influences short- and long-term benefits and detriments as did natural flooding many years ago.

(Defs.' Mot., Ex. B at 44, ECF No. 16-2).

The Corps also developed Water Control Manuals that govern operation of the various MR&T structures, including the Bonnet Carre. (See Pls.' Supp. Mem., Ex. 4 at 104, ECF No. 85-4). The Bonnet Carre Water Control Manual was drafted in December 1984 and revised in September 1999. (Admin. R., part 20 at 54, ECF No. 48-20).

The plaintiffs, consisting of local governmental entities and private businesses operating near the Sound, have sued the Corps and the MRC. According to the complaint, more frequent lengthier openings of the Bonnet Carre in recent years have caused significant damages to the environment and economy of the Mississippi Gulf Coast. The plaintiffs' claims are brought pursuant to the Administrative Procedure Act (“APA”). Plaintiffs assert that the Corps and the MRC failed to perform the full environmental impact analysis...