St. Johns Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs

304 F.Supp.3d 1229

ST. JOHNS RIVERKEEPER, INC., Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, Defendant,

v.Jacksonville Port Authority, Intervenor Defendant.

Case No. 3:17–cv–398–J–34MCR

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

Signed January 19, 2018

Kenneth B. Wright, Bledsoe, Jacobson, Schmidt, Wright & Sussman, Jacksonville, FL, for Plaintiff.

Brittany Berger, Brooks W. Moore, US Army Corps of Engineers, Jacksonville, FL, Stephen Finn, Brian M. Collins, US Department of Justice—ENRD, Washington, DC, for Defendant.

Emily Friend O'Leary, Herschel T. Vinyard, Jr., Foley & Lardner, LLP, Jacksonville, FL, Joshua Hawkes, Christopher M. Kise, Foley & Lardner, LLP, Tallahassee, FL, for Intervenor Defendant.

ORDER

MARCIA MORALES HOWARD, United States District Judge

THIS CAUSE is before the Court on Plaintiff's Motion for Preliminary Injunction and Memorandum of Law (Doc. 24; Riverkeeper Motion), filed on December 4, 2017, and Federal Defendant's Motion to Dismiss Counts I and II of Plaintiff's First Amended Complaint (Doc. 32; Corps Motion), filed on December 8, 2017. In the Riverkeeper Motion, Plaintiff St. Johns Riverkeeper, Inc. (Riverkeeper) seeks a preliminary injunction prohibiting Defendants from proceeding with a plan to dredge a portion of the St. Johns River until Defendant United States Army Corps of Engineers (Corps) "has satisfied its [National Environmental Policy Act (NEPA) ] obligations." See Motion at 1, 25.

As directed by the Court, see Order (Doc. 28), Riverkeeper filed a supplement in support of its Motion on December 8, 2017. See Plaintiff's Supplement on Security Requirements in Support of its Motion for Preliminary Injunction (Doc. 30; Supplement). The Corps and Intervenor Defendant Jacksonville Port Authority (JaxPort) filed responses in opposition to the Riverkeeper Motion on December 14, 2017. See JaxPort's Memorandum of Law in Opposition to Riverkeeper's Motion for Preliminary Injunction (Doc. 33; JaxPort Response); Federal Defendant's Response to Plaintiff's Motion for Preliminary Injunction (Doc. 34; Corps Response). Riverkeeper filed a reply in support of its Motion on December 20, 2017. See Plaintiff's Reply to Defendants' Response to Plaintiff's Motion for Preliminary Injunction (Doc. 35; Reply).

In the Corps Motion, the Corps moves to dismiss Counts I and II of the First Amended Complaint for Declaratory and Injunctive Relief (Doc. 23; Amended Complaint). In doing so, the Corps contends that the Court lacks subject matter jurisdiction over Counts I and II. Riverkeeper responded to the Corps Motion on December 22, 2017. See Plaintiff St. Johns Riverkeeper's Response to Defendant United States Army Corps of Engineers' Motion to Dismiss Counts I and II of Plaintiff's First Amended Complaint (Doc. 36; Riverkeeper Response). The Court heard argument on the Riverkeeper Motion and the Corps Motion at a hearing on January 4, 2018. See Minute Entry (Doc. 37). Accordingly, the Motions are ripe for review.

I. Introduction

Plaintiff, St. Johns Riverkeeper, Inc., is a nonprofit organization "dedicated to the protection, preservation, and restoration of the ecological integrity of the St. Johns River watershed for current users and future generations." See Riverkeeper Motion, Ex. B: Affidavit of Lisa Rinaman (Doc. 24–2; Rinaman Aff.) ¶ 3. Riverkeeper "monitors the environmental quality of the St. Johns River and its tributaries and advocates for its protection and restoration." Id. ¶ 4. One of the ways Riverkeeper works to protect and restore the St. Johns River is by ensuring that environmental laws are properly followed in connection with the River. Id. Riverkeeper also works to educate the public about the St. Johns River and its management by organizing boat trips for its members and others. Id. ¶ 5. The Jacksonville Port Authority joined this action as an Intervenor Defendant on July 10, 2017. See Order (Doc. 12). JaxPort "was created by legislation in 1963 to own and operate marine facilities in Duval County, Florida." See JaxPort's Answer to the First Amended Complaint and Affirmative Defenses (Doc. 31) at 1 n.1. Pursuant to the JaxPort Charter, JaxPort is now a political body of the City of Jacksonville. Id.

The Corps, in coordination with JaxPort, is currently proceeding with a plan to dredge a portion of the Jacksonville Harbor in the St. Johns River. As required by law, the Corps studied the environmental impacts of a deepening project and in April 2014 issued an environmental impact statement on the project. See April 2014 General Reevaluation Report II and Supplemental Environmental Impact Statement (A.R. at 298856; April 2014 Report).¹ The United States Congress authorized construction of the dredging project in 2014. Recently, JaxPort allocated funds to begin the dredging project and the federal government has appropriated funding for a portion of the project as well. The Corps is prepared to begin dredging within weeks, if not days.

Riverkeeper initiated this action challenging the dredging project on April 7, 2017. See Complaint for Declaratory and Injunctive Relief (Doc. 1; Initial Complaint). In the Initial Complaint, Riverkeeper asserted six causes of action all of which challenged the sufficiency of the Corps' compliance with the requirements of the National Environmental Policy Act (NEPA) in connection with the dredging project and the April 2014 Report on that project. Specifically, Riverkeeper challenged the Corps' study of the proposed project's environmental impacts, the adequacy of its mitigation plan, and the economic analysis of the project's costs and benefits. The Riverkeeper also alleged that the Corps failed to adequately provide for public participation, and failed to prepare a supplemental environmental impact statement to address compliance with state water quality standards for turbidity. Riverkeeper did not request preliminary injunctive relief at the time of filing the Complaint. The Court held a status conference to discuss an appropriate schedule for this action on August 1, 2017. See Minute Entry (Doc. 18). Neither before nor during the status conference did Riverkeeper suggest any intention to seek an order prohibiting the start of dredging before the Court resolved the merits of its claims.

On November 9, 2017, with leave of Court, Riverkeeper filed the Amended Complaint, which is the operative pleading before the Court. In the eight-count Amended Complaint, Riverkeeper continues to allege that the Corps failed to comply with the requirements of NEPA. In addition to the six areas of deficiency identified in the Initial Complaint, in the Amended Complaint, Riverkeeper has added two new claims in Counts I and II. In Count I, Riverkeeper alleges that the Corps has failed to prepare an environmental impact statement for the project it actually intends to complete, an 11–mile dredge. As such, Riverkeeper contends that the Corps must prepare an environmental impact study on the 11–mile project before it may commence with the dredging project. In Count II, Riverkeeper maintains that the Corps has failed to prepare a supplemental environmental impact statement addressing new information stemming from Hurricane Irma.

Approximately one month after filing the Amended Complaint, Riverkeeper filed its motion seeking a limited injunction prohibiting the Corps from beginning any dredging until the Court resolves the merits of two of its claims. In doing so, Riverkeeper relies not on the alleged NEPA violations identified in the Initial Complaint, the deficiencies in the April 2014 Report, but instead argues that an injunction is warranted based solely on the new claims asserted in Counts I and II of the Amended Complaint. Thus, for purposes of resolving the instant Motions, only the claims in Counts I and II are presently before the Court. What is not before the Court at this time are Riverkeeper's challenges to the overall sufficiency of the April 2014 Report which formed the basis of the approval of the 13–mile dredging project. As such, the resolution of the instant Motions does not reflect on the merits of those claims or whether Riverkeeper will ultimately prevail on its contention that the April 2014 Report is deficient.

II. Applicable Law

A. NEPA

i. Purpose

The purpose of NEPA, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., is to protect and promote environmental quality. See N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1540 (11th Cir. 1990). To achieve this goal, "NEPA establishes procedures that a federal agency must follow before taking any action." Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008). These procedures require an agency "to document the potential environmental impacts of significant decisions before they are made." See Wilderness Watch & Public Emps. For Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1094 (11th Cir. 2004). In this way, NEPA aims to: "(1) ensur[e] that agency attention will be focused on the probable environmental consequences of [a] proposed action and (2) assur[e] the public that the agency has considered environmental concerns in its decision making process." See N. Buckhead Civic Ass'n, 903 F.2d at 1540 ; Mainella, 375 F.3d at 1094 (explaining that NEPA requires agencies to document environmental impacts to ensure that "environmental issues are considered by the agency and that important information is made available to the larger audience that may help to make the decision or will be affected by it"). As the Supreme Court explained in Marsh:

NEPA promotes its sweeping commitment to ‘prevent or eliminate damage to the environment and biosphere’ by focusing Government and public attention on the environmental effects of proposed agency action. 42 U.S.C. § 4321. By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.

See Marsh v. Oregon Natural Res. Council, ...