Sierra Club v. United States Army Corps of Eng'rs

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SIERRA CLUB and DANIEL RAMETTA, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, TODD T. SEMONITE and ANDREW KELLY, Defendants.

No. 8:20-cv-287-CEH-JSS

United States District Court, M.D. Florida, Tampa Division

January 20, 2023

ORDER

Charlene Edwards Honeywell, United States District Judge.

This cause comes before the Court on the Report and Recommendation (“R&R”) of Magistrate Judge Julie S. Sneed (Doc. 100). In the R&R, Magistrate Judge Sneed recommends that the Court deny the Motion for Summary Judgment of Plaintiffs Sierra Club and Daniel Rametta (Doc. 68), and grant the Cross-Motions for Summary Judgment of Federal Defendants United States Army Corps of Engineers and Scott A Spellmon, in his official capacity as Chief Engineer and Commanding General of the Corps, and Colonel Andrew Kelly, in his official capacity as Commander and District Engineer of the Corps, (collectively, “the Corps”) (Doc. 82) and Defendant-Intervenor Pasco County Board of County Commissioners (“Pasco”) (Doc. 83). Plaintiffs filed Objections to the R&R (Doc. 101), to which Defendants filed responses in opposition (Docs. 102, 103).

Upon review and consideration of the R&R, the Objections Defendants' responses, the underlying motions, and the administrative record, the Court concludes the Objections are due to be overruled and the R&R adopted.

I. BACKGROUND

A. The Administration Decision and Lawsuit

On December 20, 2019, the Army Corps of Engineers issued a permit to Pasco County and the Florida Department of Transportation pursuant to section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344(a). Doc. 1-1 at 1. The permit was issued in connection with Pasco's longstanding efforts to construct a roadway referred to as the Ridge Road Extension (“RRE”) in order to improve mobility and evacuation routes in the county. Doc. 1-13 at 2. The RRE will span 8.65 miles, including 2.6 miles in the Serenova Tract of the Starkey Wilderness Preserve-an area designated as mitigation for the impacts of the Suncoast Parkway. Doc. 1-20 at 4, 12; Doc. 1 ¶ 12. The project requires fill material to be deposited over 42.40 acres of high-quality preserved wetlands, which will permanently impact a significant portion. Doc. 1 ¶ 1.

Plaintiffs filed this action in February 2020, asserting that the Corps' decision to issue the permit was unreasonable, arbitrary and capricious, not in the public interest, and otherwise not in accordance with federal law. Id. ¶ 6. Plaintiffs allege that the issuance of the permit violated the CWA and the National Environmental Policy Act (“NEPA”). With respect to NEPA, Plaintiffs argue that the Corps relied on stale data when concluding the RRE would not significantly impact the environment, failed to take a hard look at the cumulative impact of reasonably foreseeable development on adjacent properties, and based its mitigation on inadequate analysis. See Doc. 100 at 8, citing Doc. 68. They further contend that the Corps violated section 404(b) of the CWA with respect to its analysis of the least environmentally damaging practicable alternative (LEDPA), because it failed to rebut the presumption that there were practicable alternatives that did not involve special aquatic sites, and because the selection of the RRE as the LEDPA was contrary to the evidence. Id. at 19. Finally, Plaintiffs also allege that the Corps violated both statutes by failing to hold a public hearing. Id. at 8, 19.

B. The Report and Recommendation

The parties filed cross-motions for summary judgment. Docs. 68, 82, 83. On September 1, 2022, the magistrate court issued an R&R in which it recommended denying Plaintiffs' motion for summary judgment and granting summary judgment in favor of Defendants. Doc. 100.

The magistrate court first concluded that Plaintiffs had not met their burden of proof to establish that the Corps violated NEPA. In so finding, the court emphasized that the Corps' decisions and analyses are entitled to substantial deference, and that NEPA mandates consideration of environmental factors but not a particular result. Id. at 11, 15-16, 17. In light of those principles, the record demonstrated that the Corps took the requisite hard look at the RRE's impacts on wildlife and the proposed mitigation, considered the cumulative effects of the permit, including indirect impacts, and went through the necessary process of reviewing mitigation measures. Id. at 1218.

Next, the magistrate court found that Plaintiffs failed to establish that the Corps acted arbitrarily and capriciously in analyzing practicable alternatives to the proposed RRE site under the CWA. Id. at 20-25. Out of the 19 sites the Corps reviewed, the court determined there was no option that could satisfy the project's purpose and that would have been entitled to a presumption that it was a practical alternative. Id. at 2223. The Corps had rejected Plaintiffs' preferred alternative, Tower Road, as the LEDPA because it was significantly more costly and would provide much less improvement to evacuation times than the RRE. Id. at 23-25.

Lastly, the magistrate court concluded the Corps was not required to hold a public hearing under NEPA or the CWA. The Corps satisfied NEPA's requirement for public participation when it issued notices and received over 1,800 public comments. Id. at 18. Moreover, while the CWA mandates an “opportunity for public hearings,” it does not require the Corps itself to hold the hearings. Id. at 25. The Corps did not act arbitrarily or capriciously in relying on the public comments. Id. at 25-26.

C. Objections and Responses in Opposition

Plaintiffs filed timely Objections to three aspects of the R&R. Doc. 101. First, Plaintiffs contend that the magistrate court erred in giving “extreme deference” to the Corps' decision to accept the Biological Opinion of the United States Fish and Wildlife Service (“FWS”), which relied on stale data. Id. at 1, 11-14.^[1] This reliance contradicted the FWS' previous guidance, which required current, updated wildlife surveys. Id. at 11-16. A less deferential standard of review is appropriate for agency decisions that are internally inconsistent. Id. at 12-13. Plaintiffs also briefly argue that the mitigation approved for the RRE was arbitrary and capricious because the Corps was required to rely on complete data, high-quality information, and accurate scientific analysis. Id. at 16-17.

In response to Plaintiffs' first objection, the Corps argues that the magistrate court applied the correct standard of review, which requires substantial deference to an agency decision regarding how much and what type of data is necessary to make a decision. Doc. 102 at 13-14. Moreover, the substance of Plaintiffs' objection is directed toward alleged inconsistencies of the FWS, but the Corps' decision is the one under review. Id. at 14-15. With respect to mitigation, the Corps asserts that it had a full picture of the environmental consequences of the RRE before issuing the permit. Id. at 15.

Pasco similarly argues that substantial deference is required by the Administrative Procedure Act, contending that Plaintiffs have provided no applicable authority for its novel view that it is not. Doc. 103 at 7-10. Indeed, review of a decision to rely on a Biological Opinion is confined to whether a party can identify information that was not taken into account and that challenges the opinion's conclusions, which Plaintiffs have not done. Id. at 12. Pasco argues that the Corps' decision to rely on the Biological Opinion was not arbitrary and capricious, and further points out that any alleged inconsistency with FWS' policy would be irrelevant to review of the Corps' decision. Id. at 13. Pasco also urges the Court to reject Plaintiffs' argument about mitigation because they fail to adequately explain and identify the portions of the R&R they are purportedly challenging. Id. at 14.

Plaintiffs' second objection relates to the magistrate court's finding that the Corps adequately considered the cumulative impacts of the project. Doc. 101 at 17-20. Plaintiffs contend that the administrative record demonstrates the Corps did not evaluate the impact of reasonably foreseeable developments, given that the RRE was always intended to act as an arterial roadway to support development in the area. Id. at 17-18. The Corps' refusal to engage in the forecasting of cumulative impacts on reasonably foreseeable development constitutes a failure to uphold its duty under NEPA. Id. at 20.

In response, the Corps argues that it took a hard look at the cumulative impacts of reasonably foreseeable development, just as the R&R correctly concluded. Doc. 102 at 16-18. Plaintiffs' claim that the Corps ignored the impacts is based on a single statement in FWS' Biological Opinion, but other evidence in the record demonstrates that the Corps thoroughly examined them. Id. at 16-17. The Corps also challenges Plaintiffs' assertion that the RRE was intended to and would lead to further development, pointing to contrary evidence in the record. Id. at 17-18. It contends that Plaintiffs' objection amounts to disagreement with the Corps' decision rather than a showing of error. Id. Pasco, too, identifies evidence in the record that it asserts demonstrates that the Corps “extensively analyzed” the RRE's cumulative effects. Doc. 103 at 15-17.

Third Plaintiffs contend that the magistrate court erred in its conclusion that the Corps' choice of the RRE as the LEDPA was not arbitrary and capricious, because it was contrary to the evidence in the administrative record demonstrating that Tower Road was the LEDPA. Id. at 20-23. The magistrate court relied on a miscalculation of wetland impact acreage in the record that was contradicted by more reliable evidence. Doc. 101 at 20-21...