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Black Warrior Riverkeeper Inc. v. U.S. Army Corps of Engineers

United States District Court, N.D. Alabama, Southern Division

August 15, 2018

BLACK WARRIOR RIVERKEEPER INC., ET AL., Plaintiffs,
v.
U.S. ARMY CORPS OF ENGINEERS, ET AL, Defendants.

          MEMORANDUM OF OPINION

          L. Scott Cooler, United States District Judge.

         Before the Court are Plaintiffs', Black Warrior Riverkeeper Inc. ("Riverkeeper") and Defenders of Wildlife ("DOW"), (collectively "Plaintiffs") motion for summary judgment (doc. 32), and Defendants', U.S. Army Corps of Engineers ("Corps"); Lt. General Todd T. Semonite ("Semonite"), in his official capacity as the Corps's Commanding General and Chief of Engineers; Col. James Delapp ("Delapp"), in his official capacity as Commander and District Engineer of the Corps's Mobile District office; the U.S. Fish and Wildlife Service ("FWS");[1]Ryan Zinke ("Zinke"), in his official capacity as Secretary of the United States Department of the Interior; and Greg Sheehan, in his official capacity as FWS's Acting Director, and Jim Kurth, in his official capacity as acting director of the FWS (collectively, "Defendants"), cross motion for summary judgment (doc. 33). For the reasons stated below, Plaintiffs' motion (doc. 32) is due to be denied and the Defendants' cross motion (doc. 33) is due to be granted.

         I. Background[2]

         In November 2014, an entity acting on behalf of Black Warrior Minerals, Inc. ("BWM") submitted a request to the Corps to make a jurisdictional determination to allow BWM to expand its mining operations in Jefferson County, Alabama in the Locust Fork Watershed. The proposed project was the BWM Mine #2, a 1293-acre surface coal mine within the Lower and Middle Locust Fork watershed.[3] The Corps approved of the boundaries and began the process of reviewing the proposed action of granting a discharge permit under § 404 of the Clean Water Act ("CWA").[4] To comply with requirements of the CWA and the National Environmental Policy Act ("NEPA"), [5] the Corps examined potential cumulative impacts and multiple mitigation measures to determine whether the project could lead to significant impacts on the environment.

         In crafting a baseline, the Corps determined that active surface mining operations, comprising seventeen (17) active surface coal mines, including BWM Mine #1, already made up 1.603% of the total acreage in the Middle Lower and Middle Locust Fork watersheds authorized and regulated by the Surface Mining Commission and Regulation Act ("SMCRA"), which is administered by the Alabama Surface Mining Commission ("ASMC"). Authorizing Mine #2 would amount to an additional 0.003% of the land within the watersheds. The Corps also acknowledged the decades of mining that had occurred in the Locust Fork watershed prior to the SMCRA's passage, and it used the impacts of those abandoned mines for baseline water quality and aquatic habitat values in the watershed. Though acknowledging various environmental harms from the past mining projects, the Corps also found that the watershed remains heavily forested[6]and provides a functioning ecosystem.

         The Corps also considered how the permittee would be required to employ compensatory mitigation measures to offset the environmental impacts that could result. To begin, project applicants are already required to use Best Management Practices imposed by the Alabama Department of Environmental Management ("ADEM"), employing water treatment processes prior to discharge of water from the mining site. The permit would also require compensatory mitigation by the permittee, such as taking measures that would enhance and preserve natural buffers along the southern boundary of the proposed mine. In light of these required mitigation measures, along with the relatively small cumulative impact that the Corps believed the BWM Mine #2 represented, it was concluded that the proposed mine would not lead to a significant impact on the environment. For this reason, Defendants elected to issue the CWA § 404 permit and to forgo making an Environmental Impact Statement ("EIS").

         In addition to considering the project's potential impacts on the environment, the Corps also considered whether the project might affect listed species or their critical habitats under the Endangered Species Act ("ESA").[7]Reasoning that areas with known listed species were too distant from the mining site to be affected, the Corps defined the relevant action area to encompass only the mining site itself. Noting, among other things, that the mining site has "no continuous flowing water," Corps AR 1232, [8] the Corps then concluded that there were no listed species or critical habitats within the action area that could be affected. Having found that no effects upon listed species could result, the Corps chose not to consult with the FWS about its issuance of the CWA § 404 permit.

         Based on the Corps's issuance of the CWA § 404 permit, Plaintiffs brought suit to challenge the procedures employed. Plaintiffs claimed that the Corps's conclusions were arbitrary and capricious, in violation of the Administrative Procedures Act ("APA").[9] More specifically, Plaintiffs brought claims under the ESA, the CWA, and the NEPA.

         With respect to the ESA claim, Plaintiffs added that claim when they amended their complaint on May 23, 2017. Plaintiffs had mailed written notice to both the Corps and the Secretary of the Interior ("the Secretary") on March 21, 2017. The Corps received that written notice on March 24th, and the Secretary received it on March 27th via first class mail. Ultimately, Plaintiffs added their ESA claim 60 days after the Corps had received notice but only 57 days after the Secretary received it.

         II. Standard

         In reviewing agency action, the court may set aside the action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act. This is an "exceedingly deferential" standard, Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), such that a court's role is only "to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation and internal quotation marks omitted). Agency action may be set aside only "for substantial procedural or substantive reasons as mandated by statute, not simply because the court is unhappy with the result reached." Citizens for Smart Growth v. Secyy of the Dep't of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012) (quoting Fund for Animals, 85 F.3d at 541-42); see also Nat Res. Def Council v. Nat'l Park Serv., 250 F.Supp.3d 1260, 1283 (M.D. Fla. 2017) (noting "[t]his standard of review provides a court with the least latitude in finding grounds for reversal"). Particular deference is due when an agency "is making predictions, within its area of special expertise, at the frontiers of science," and thus a "court must generally be at its most deferential" in such instances. Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1248-49 (11th Cir. 2012) (citation omitted). As long as the record supports the agency's decision, that decision should be upheld even if the record could support alternative findings. Ark. v. Ok/a., 503 U.S. 91, 112-13 (1992). However, the "failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct," and "courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Simmons v. Block 782 F.2d 1545, 1549-1550 (11th Cir. 1986) (citations omitted) (affirming decision to set aside agency action as arbitrary and capricious where agency "followed neither course of action specified in the regulations"). The party challenging the agency action bears the burden of proof. See, e.g., Nat. Res. Def Council, 250 F.Supp.3d at 1283 (citing Druid Hills Civic Ass'n v. Fed. Highway Admin., 772 F.2d 700, 709 n.9 (11th Cir. 1985)).

         III. Discussion

         A. Plaintiffs' ESA Claim

         As an initial matter, there is a question as to whether Plaintiffs followed the proper procedure in adding their claim under the ESA. A citizen may not commence an action under the ESA "prior to sixty days after written notice . . . has been given" to the Secretary of the Interior "and to any alleged violator." 16 U.S.C. § 1540(g)(2)(A)(i) (2012). Courts have interpreted this provision strictly to ensure that all parties have "an opportunity to resolve the dispute and take any necessary corrective measures before a resort to the courts." Waterkeeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 29 (1st Cir. 2001); see S.W. Ctr for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998) ("A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA."); see also Nat'l Parks & Conservation Ass'n Inc. v. TVA, 502 F.3d 1316, 1329 (11th Cir. 2007) (discussing a similar notice provision under the CWA). The "requirement is jurisdictional, "[10] and non-compliance warrants dismissal of the case. Alabama v. U.S. Army Corps of Eng'rs, 441 F.Supp.2d 1123, 1129 (N.D. Ala. 2006) (citing Sw. Ctr for Biological Diversity, 143 F.3d at 520 and Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996)); see also Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988) ("[The ESA's] notice requirement is jurisdictional . . . .").[11]

         The parties do not dispute any of the facts regarding Plaintiffs' attempt to provide written notice of intent, but there remains a legal question as to when the 60-day notice period begins where a plaintiff sends notice through the mail. If the notice period began on the postmark date, then Plaintiffs' filing of the amended complaint 63 days after mailing notice would be sufficient. But if the notice period began upon receipt by all parties, then the fact that Plaintiffs filed their amended complaint only 57 days after the Secretary received notice would warrant dismissal without prejudice of the ESA claim.

         The starting point of the required notice period presents a novel issue. It is well established that the notice requirements in the ESA and in similar laws are quite strict. See e.g., Hallstrom v. Tillamook Cty., 493 U.S. 20, 27 (1989). The case most analogous to the facts at issue is Center for Environmental Science, Accuracy & Reliability v. Sacramento Regional County Sanitation Dist, No. 1:15-cv-01103 LJO BAM, 2016 WL 8730775 (E.D. Cal. June 3, 2016) ("CESAR"). There, a district court dismissed an ESA claim when a plaintiff had mailed written notice to the Secretary, but the notice had never reached the Secretary. Id. (noting that "it is not unfair to require that an ESA notice be 'received'"). However, unlike in CESAR, the Secretary did ultimately receive notice here. Indeed, neither party has been able to cite any case that addresses a situation in which a plaintiff filed a citizen-suit complaint more than 60 days after mailing notice but fewer than 60 days after the receipt of that notice.

         Plaintiffs point to similar notice-requirement language in the CWA, see 40 C.F.R. § 254.2(c), from which the ESA's notice provision was patterned. Hallstrom, 493 U.S. at 23 n.1. Because the Environmental Protection Agency ("EPA") regulations have interpreted the CWA's notice period as beginning on the postmark date, Plaintiffs claim that the same should apply to the ESA. See 40 C.F.R. § 54.2(d) ("Notice served in accordance with the provisions of this part shall be deemed given on the postmark date, if served by mail, or on the date of receipt, if personally served.");[12] see also, e.g., 40. C.F.R. § 135.2(c). However, the ESA is administered by a different agency-the Fish and Wildlife Service-which is not bound by the interpretations made by the EPA. See KMart Corp. v. Cartier, Inc., 486 U.S. 281, 293 n.4 (1988) (noting that "agency regulations may give a varying interpretation of the same phrase when that phrase appears in different statutes and different statutory contexts"). Moreover, the case cited by Plaintiffs in support is distinguishable. In Loggerhead Turtle v. Volusia County, Florida, the Eleventh Circuit confined its analysis exclusively to the attorney fee language in the ESA and CWA, making no comparison of the notice-requirement provision. 307 F.3d 1318, 1325 (11th Cir. 2002).

         With no precedent as to when the notice period begins under the ESA, this Court instead looks to the provision's language[13] and purpose. The question of when notice has "been given" is admittedly an unclear one. Common usage could hold either way as to whether the act of giving alone is enough or whether receipt is necessary. See Give, Black's Law Dictionary (11th ed. 2014) ("to present to another to consider"). Fortunately, the Supreme Court provided guidance in Hallstrom, noting that the 60-day notice period provides agencies with opportunity to take corrective measures and thereby make litigation via citizen suits unnecessary. 493 U.S. at 29; see also Sw. Ctr for Biological Diversity, 143 F.3d at 520 (the ESA's notice requirement provides agencies with "an opportunity for settlement or other resolution of a dispute without litigation") (quoting Forest Conservation Council v. Espy, 835 F.Supp. 1202, 1210 (D. Id. 1993) aff'd 42 F.3d 1399 (9th Cir. 1994)). Thus, the purpose of the 60-days' notice is to provide the parties with a window to correct the issues and avoid costly litigation.

         Given the notice provision's purpose, it would seem necessary for the notice period to begin only once the parties[14] have received notice of the intent to sue. Suppose that Plaintiffs had mailed its notice of intentjust as occurred here, but the delay in receipt was even more pronounced. Under Plaintiffs' reading of the statute, it could have met its notice requirement even if the Corps or the Secretary had not received the written notice until 59 days after the postmark date. Such a short period between receipt of notice and the action's commencement would be wholly inadequate for the parties to resolve the claim without resorting to litigation.

         Moreover, Plaintiffs can hardly claim that requiring a plaintiff to ascertain when notice has been received is an undue burden. As Plaintiffs, Riverkeeper and DOW, have "full control over the timing of [their] suit." Hallstrom, 493 U.S. at 27. No great obstacle prevented Plaintiffs from making inquiries into when the Secretary had received notice and then delaying the filing of the amended complaint accordingly. Indeed, Plaintiffs filed their amended complaint on May 23, 2016, exactly 60 days after the Corps received notice and 63 days after Plaintiffs alleges they gave notice. That fact is strong evidence of Plaintiffs' ability to delay the filing of their suit to an appropriate time. Because the controversy here resulted from Plaintiffs' decision of when to file the amended complaint, the "equities do not weigh in favor" of interpreting the procedural requirement in Plaintiffs' favor. See id.

         Plaintiffs argue that the timing of receipt by the Secretary is not fatal, since the Corps received notice on time and the Secretary did ultimately receive notice as well. But, the text of § 1540(g)(2)(A)(i) makes clear that notice must be given to both\he Secretary and the agency that is in violation of the law.[15] And in CESAR, failure to notify the Secretary 60 days prior to commencing the action was just as fatal to the claim as a failure to notify the agency alleged to be in violation. 2016 WL 8730775, at *5. Between the statutory text and subsequent case law, the ESA requires that the Secretary be included in the lead-up to litigation in the same manner as the agency alleged to be in the wrong. Thus, Plaintiffs cannot excuse any deficiency in their notice to the Secretary by arguing that the notice to the Corps was sufficient.

         By filing their amended complaint fewer than sixty days after receipt of notice by both the Corps and the Secretary, Plaintiffs have failed to provide sufficient notice as required under § 1540(g)(2)(A). Their citizen suit claim under the ESA is therefore due to be dismissed without prejudice.[16]

         Because the Court has determined that Plaintiffs' ESA claim is due to be dismissed without prejudice for failure to give 60 days' notice of intent, a requirement that isjurisdictional, [17] the Court declines to proceed to its merits.

         B. Plaintiffs' CWA and NEPA claims

         In addition to claims under the ESA, Plaintiffs also bring claims under both the CWA and the NEPA. To succeed on either claim, Plaintiffs must first show that Defendants' actions were arbitrary and capricious.[18] See Black Warrior Riverkeeper, Inc., 833 F.3d at 1286-89 (holding that agency's finding of minimal effects in issuing CWA permit was not arbitrary and capricious); see also Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998) (reviewing decision not to issue EIS under "arbitrary and capricious" standard).

         The CWA prohibits the discharge of pollutants, such as dredge or fill material, into any navigable waters unless authorized by a CWA permit. 33 U.S.C. § 1311(a) (2012). Section 404 of the CWA authorizes the Corps to regulate the discharge of dredge and fill materials into wetlands through the issuance of permits. 33 U.S.C. § 1344 (2012). Before issuing a permit under CWA § 404, the Corps must ensure that the potential discharges could not have "significantly adverse effects" on human health or welfare, aquatic life, or aquatic ecosystems. 40 C.F.R. § 230.10(c)(1)-(3). In doing so, the Corps must make a written determination as to the potential effects of the proposed discharge "on the physical, chemical, and biological components of the aquatic environment." 40 C.F.R. § 230.11.

         Unlike the CWA, the NEPA sets no substantive restrictions on agency actions. Sierra Club, 526 F.3d at 1361 ("NEPA is procedural, setting forth no substantive limits on agency action." (citing Robertson v. Methow Valley Citizens Council,490 U.S. 332, 350 (1989)). Instead, the NEPA directs federal agencies to carefully consider the environmental consequences for their actions and to prepare an EIS for any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In determining whether there are significant impacts, an agency must also analyze the cumulative impacts of a proposed action in the context of other, related actions. See City of Oxford v. FAA,428 F.3d 1346, 1353 n. 16 (11th Cir. 2005).[19] A cumulative impact is the impact on the environment that results when the project's effects are "added to other past, present, and reasonably foreseeable future actions" that may occur. 40 C.F.R. § 1508.7.[20] After examining all potential impacts from the project, ...


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