Sierra Club v. U.S. Army Corps of Engineers

Page 503

450 F.Supp.2d 503

SIERRA CLUB, New Jersey Public Interest Group Citizens Lobby, Inc., and New Jersey Environmental Federation, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Colonel Richard J. Polo, Jr., and Meadowland Mills/Mack-Cali Limited Partnership, Defendants.

Civil Action No. 05-1724 (JAP).

United States District Court, D. New Jersey.

September 28, 2006.

COPYRIGHT MATERIAL OMITTED

Edward Lloyd, Reed Super, Morningside Heights Legal Services, Inc., New York City, for Plaintiffs.

Michael R. Cole, Benjamin Clarke, De Cotiis, Fitzpatrick, Cole & Wisler, LLP, Teaneck, NJ, Virginia S. Albrecht, Eric J Murdock, David C. Lashway, David DePippo, Hunton & Williams LLP, (Admitted Pro Hac Vice), Washington, DC, for Defendant Meadowlands Mills/Mack-Cali Limited Partnership.

Sue Ellen Wooldridge, Assistant Attorney General, Environment and Natural Resources Division, Eileen T. McDonough, Environmental Defense Section, United States Department of Justice, Washington, DC, Christopher J. Christie, United States Attorney, Susan Handler-Menahem, Assistant United States Attorney, Newark, NJ, for Defendants United States Army Corps of Engineers and Colonel Richard J. Polo, Jr.

OPINION

PISANO, District Judge.

INTRODUCTION

Sierra Club, New Jersey Public Interest Group Citizen Lobby, Inc., and New Jersey Environmental Federation (collectively, "Plaintiffs") filed this action against the United States Army Corps of Engineers and Colonel Richard J. Polo, Jr. (collectively, the "Army Corps") and the Meadowlands Mills/Mack-Cali Limited Partnership ("Mills/Mack-Cali"). Plaintiffs challenge a permit (the "Permit") issued by the Army Corps pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344 (the "CWA"), and section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, authorizing Mills/Mack-Cali to fill 7.69 acres of wetlands in East Rutherford, New Jersey that are subject to the jurisdiction of the Army Corps (the "7.69 acres of wetlands" or the "Cedar Creek Wetlands").¹ In brief, Plaintiffs allege that the Army Corps's issuance of the Permit violated the CWA, the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), the Rivers and Harbors Act, 33 U.S.C. §§ 401, et seq., as well as their implementing regulations. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 2201-2202.

Plaintiffs filed the Complaint in March 2005, and, in May 2005, filed a motion for preliminary injunctive relief by order to show cause. The Court held oral argument on Plaintiffs' motion on July 6, 2005. An order denying Plaintiffs' motion for preliminary injunctive relief was entered on the Docket on July 7, 2005, and a written opinion was entered on August 29, 2005.

Currently before the Court are Plaintiffs' motion for summary judgment, the Army Corps's and MilVMack-Cali's crossmotions for summary judgment, the Army Corps's motion to strike extra-record material, and Plaintiffs' cross-motion for judicial notice. The Court decides these motions without oral argument as it is permitted to do under Fed.R.Civ.P. 78. For the reasons discussed below, the Court denies Plaintiffs' motion for summary judgment, grants Defendants' crossmotions for summary judgment, grants Plaintiffs' motion for judicial notice, and grants in part and denies in part the Army Corps's motion to strike.

THE MOTIONS TO STRIKE AND FOR JUDICIAL NOTICE

Plaintiffs' motion for summary judgment included exhibits that were not part of the administrative record considered by the Army Corps during the administrative proceedings. Generally, when conducting judicial review of an agency's determination under the Administrative Procedure Act, a court is limited to the administrative record before the agency at the time the decision is made. 5 U.S.C. § 706 (providing that "the court shall review the whole record or those parts of it cited by a party"); see also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The Army Corps moved to strike these extra-record documents, identified as Exhibits 18-27 to Plaintiffs' motion for summary judgment, and to limit judicial review to the administrative record submitted by the Army Corps. Plaintiffs opposed the Army Corps's motion and cross-moved for judicial notice of documents identified as Exhibits 15-20 and 22-27 to Plaintiffs' motion for summary judgment. For the reasons discussed below, Plaintiffs' motion is granted, and the Army Corps' motion is granted in part and denied in part.

Certain of the pertinent Exhibits are not in dispute. First, the Court notes that Plaintiffs have not opposed the Army Corps's motion to the extent it seeks to strike the extra-record document identified as Exhibit 21. Accordingly, the Army Corps's motion is granted to the extent that it seeks to strike the document identified as Exhibit 21. Second, the Army Corps agrees that three of the documents that are the subject of Plaintiffs' motion, namely Exhibits 15, 16, and 17, may be considered by the Court even though not included in the administrative record. Exhibit 15 is "NJSEA's Master Developer Request for Proposals." Exhibit 16 is "NJSEA's Addendum to Master Developer Request for Proposals." The Army Corps indicates that the documents at Exhibits 15 and 16 were cited as references in the Army Corps's documents, that record documents quote excerpts from them, and that portions of them are attached to documents listed in the index to the record; consequently, submission of Exhibits 15 and 16 serves to provide the Court with full copies of materials considered by the Army Corps. The Court agrees. The document at Exhibit 17, "Memorandum of Agreement between the Department of the Army and the Environmental Protection Agency: The Determination of Mitigation under the Clean Water Act Section 401(b)(1) Guidelines," was published at 55 Fed.Reg. 9210 (Mar. 12, 1990), and thus is appropriate for the Court to consider. The documents at Exhibits 15, 16, and 17 not being subject to reasonable dispute, Plaintiffs' motion is granted to the extent that it seeks to have the Court take judicial notice of the documents identified as Exhibits 15, 16, and 17. See Fed.R.Evid. 201(b).

Thus, the dispute between the parties is only as to the documents identified as Exhibits 18-20 and 22-27. Although the general rule may be that a court is limited to the administrative record in reviewing agency action under the Administrative Procedure Act ("APA"), courts may consider evidence not contained in the record in a variety of circumstances. See, e.g., Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998) (listing instances in which a court may review materials outside the administrative record); Bergen County v. Dole, 620 F.Supp. 1009, 1016-17 (D.N.J.1985) (discussing propriety of review of materials outside the administrative record). In particular, in NEPA cases, "a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored." Suffolk County v. Sec'y of Interior, 562 F.2d 1368, 1384 (2d Cir.1977); see also Dole, 620 F.Supp. at 1016-17. Plaintiffs argue that they have submitted Exhibits 18-20 and 22-27 "in order to illustrate that the [Army Corps] neglected to mention serious environmental consequences and failed to adequately discuss reasonable alternatives to the proposed Xanadu project." (Pltfs' Judicial Notice Br. at 6). Thus, these documents fall under the aforementioned exception in NEPA cases to the general rule that a reviewing court is limited to considering the administrative record.

Further, Federal Rule of Evidence 201 provides, in part, that a court may take notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Each of the documents submitted at Exhibits 18-20 and 22-27 is a public or quasi-public document capable of accurate and ready determination, the authenticity of which is not at issue and the content of which is not in dispute, and is thus subject to judicial notice under Federal Rule of Evidence 201(b).² See, e.g., B.T. Produce Co., Inc. v. Robert A. Johnson Sales, Inc., 354 F.Supp.2d 284 (S.D.N.Y.2004) (taking judicial notice of various public documents); Del Puerto Water Dist. v. U.S. Bureau of Reclamation, 271 F.Supp.2d 1224, 1233-34 (E.D.Cal.2003) (taking judicial notice of public and quasi-public documents in context of motion to dismiss); Black v. Arthur, 18 F.Supp.2d 1127, 1132 (D.Or.1998) (taking judicial notice of public document in context of motion to dismiss).

Accordingly, Plaintiffs' motion is granted, and the Army Corps' motion is granted in part and denied in part. The Court will consider the documents at Exhibits 18-20 and 22-27 to the extent that they may be probative of the various arguments made by the parties as addressed below.³

THE MOTIONS FOR SUMMARY JUDGMENT

I. LEGAL STANDARDS⁴

A. Standard of Review Under Fed. R.Civ.P. 56(c)

A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law identifies which facts are critical or "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On a summary judgment motion, the...