United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Cooler, United States District Judge.
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");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.
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. 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"). To comply with requirements
of the CWA and the National Environmental Policy Act
("NEPA"),  the Corps examined potential cumulative
impacts and multiple mitigation measures to determine whether
the project could lead to significant impacts on the
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
forestedand provides a functioning ecosystem.
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
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").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,  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.
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"). More specifically,
Plaintiffs brought claims under the ESA, the CWA, and the
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.
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)).
Plaintiffs' ESA Claim
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, " 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 . . . .").
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.
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.
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."); 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).
precedent as to when the notice period begins under the ESA,
this Court instead looks to the provision's
language 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.
the notice provision's purpose, it would seem necessary
for the notice period to begin only once the
parties 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.
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
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. 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.
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
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,  the Court declines to proceed to its
Plaintiffs' CWA and NEPA claims
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. 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).
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. §
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). 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. After examining all
potential impacts from the project, ...