City Park for Everyone Coalition et al v. Federal Emergency Management Agency et al, No. 2:2015cv00918 - Document 17 (E.D. La. 2015)
Court Description: ORDER AND REASONS granting defendant NOCPIA's motion 11 to dismiss plaintiffs' claims against it for lack of jurisdiction. Signed by Judge Sarah S. Vance on 11/2/15. (jjs)
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City Park for Everyone Coalition et al v. Federal Emergency Management Agency et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CITY PARK FOR EVERYONE COALITION, ET AL. CIVIL ACTION VERSUS NO: 15-918 FEDERAL EMERGENCY MANAGEMENT AGENCY, ET AL. SECTION: R(4) ORD ER AN D REASON S Defendant New Orleans City Park Improvement Association ("NOCPIA") m oves the Court to dism iss plaintiffs' claim s against it under the National Environm ental Policy Act ("NEPA") and the Adm inistrative Procedure Act ("APA") for failure to state a claim and lack of jurisdiction. NOCPIA further m oves for dism issal of plaintiffs' Louisiana state law claim s on the grounds that the Court's supplem ental jurisdiction does not extend that far. For the following reasons, the Court grants the m otion to dism iss. I. BACKGROU N D This case centers on NOCPIA's plan to build an 18-hole golf course within New Orleans' City Park and on the Federal Em ergency Managem ent Agency's ("FEMA") decision to partially fund the project. On March 26, 20 15, Dockets.Justia.com plaintiffs City Park for Everyone Coalition, Kevin McDunn, and Christopher Lane filed this action against FEMA, FEMA Adm inistrator Craig Fugate, and NOCPIA, alleging that defendants collectively failed to conduct an adequate environm ental review of the golf course project and gave insufficient opportunity for public com m ent in violation of the NEPA and the APA. Plaintiffs also bring several other claim s against NOCPIA under Louisiana statutory and constitutional law. A. Th e Partie s This case is brought by Kevin McDunn and Christopher Lane, both of whom are dom iciled in Orleans Parish, Louisiana, along with the City Park for Everyone Coalition, a Louisiana non-profit corporation with its principal place of business in Orleans Parish, Louisiana.1 The federal defendants are FEMA, a federal agency headquartered in Washington D.C. and responsible for adm inistering recovery grant program s, and FEMA's Adm inistrator, W. Craig Fugate, who is nam ed as defendant in his individual capacity.2 Defendant NOCPIA is a public body of the State of 1 R. Doc. 1 at 2. 2 Id. at 2-3 2 Louisiana, which is responsible for operations and m anagem ent of New Orleans City Park.3 B. Factu al Backgro u n d City Park consists of 150 0 acres of m ulti-use parkland located within the City of New Orleans.4 Before Hurricane Katrina, 525 acres of City Park land were allocated am ong four 18-hole golf courses.5 While the South Course discontinued operations shortly before the storm m ade landfall,6 the remaining three courses (North, East, West) sustained severe damage from the high winds, flooding, and storm surge brought by Hurricane Katrina.7 In 20 0 9, the North Course was fully repaired and resum ed operations, but the East and West Courses rem ained out of com m ission.8 As the entity responsible for City Park's m anagem ent, NOCPIA developed a m aster plan that called for restoration and m odification of the unrepaired courses. This plan called for com bining the West Course with 3 Id. at 3. 4 R. Doc. 1-8 at 7. (FEMA's "Draft Environm ental Assessm ent). 5 Id. 6 Id. at 8; see also R. Doc. 1-6 at 9 ("New Orleans City Park Master Plan"). 7 R. Doc. 1-8 at 8. (FEMA's "Draft Environm ental Assessm ent). 8 Id. 3 portions of the East Course to create a new, single 18-hole golf course.9 Those portions of the East Course not allocated to the new course--approxim ately 96 acres, according to FEMA's Draft Environm ental Assessm ent ("EA")--would be converted to green space, while 5.5 acres not previously used for golf would be added to the new course layout.10 To im plem ent this plan, the State of Louisiana Facility Planning and Control (FP&C) applied for federal funding under FEMA's Public Assistance Program .11 After concluding that City Park's golf com plex was eligible for restoration to pre-disaster condition, FEMA com pleted a Draft EA analyzing the potential environm ental im pacts of the proposed project.12 In May 20 13, FEMA issued a draft Finding of No Substantial Im pact ("FONSI"), which found that the project "would not result in significant adverse im pacts to the quality of the natural and hum an environm ent" and that a com plete EIS was not necessary.13 9 Id. at 11. 10 Id. at 11. 11 Id. Public Assistance is a program that provides funding to assist in repair, restoration, reconstruction, or replacem ent of public facilities dam aged as a result of a declared disaster. See 42 U.S.C. § 5172(a)(1)(A) ("The President m ay m ake contributions . . . to a State or local governm ent for the repair, restoration, reconstruction, or replacem ent of a public facility dam aged or destroyed by a m ajor disaster and for associated expenses incurred by the governm ent."). 12 See R. Doc. 1-8 (FEMA's "Draft Environm ental Assessm ent). 13 See R. Doc. 1-9 (FEMA's "Draft FONSI"). 4 Plaintiffs brought this lawsuit, seeking a declaratory judgm ent that defendants failed to com ply with NEPA and an injunction com pelling FEMA to withhold funds and requiring NOCPIA to stop construction pending com pletion of an adequate environm ental review.14 Plaintiffs' com plaint alleges num erous NEPA violations by both FEMA and NOCPIA. Specifically, plaintiffs allege that FEMA gave too little consideration to the environm ental im pacts of developing acreage not previously devoted to golf and that it gave short shrift to the project's environm ental justice im plications. Plaintiffs further allege the FEMA's EA included inaccurate statem ents and that the agency gave too little tim e for public com m ent on its draft FONSI. As for NOCPIA, plaintiffs allege that the Association m isled FEMA about aspects of its plan, including the nature and extent of public participation in its developm ent. Plaintiffs further allege that NOCPIA violated the Louisiana Public Records Law by responding inadequately to three requests for inform ation concerning its golf course plans. Finally, plaintiffs allege that NOCPIA failed to post com plete m inutes of its m eetings in violation of Louisiana's Open Meetings Laws and that it did not consider the 14 R. Doc. 1. 5 environm ental im plications of building a new golf course in City Park, as required by Louisiana's Public Trust Doctrine. NOCPIA now m oves to dism iss plaintiffs' federal and state law claim s against it for failure to state a claim and lack of jurisdiction.15 II. LEGAL STAN D ARD Under Rule 12(b)(1), "[a] case is properly dism issed for lack of subject m atter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Hom e Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 10 0 6, 10 10 (5th Cir.1998) (quoting N ow ak v. Ironw orkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996)). In ruling on a Rule 12(b)(1) m otion to dism iss, the Court m ay rely on (1) the com plaint alone, presum ing the allegations to be true; (2) the com plaint supplem ented by undisputed facts; or (3) the com plaint supplem ented by undisputed facts and the court's resolution of disputed facts. Den Norske Stats Ojeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir.20 0 1); see also Barrera– Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). 15 R. Doc. 11-1. 6 The party asserting jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir.20 0 1). III. D ISCU SSION A. Plain tiff's Claim s U n d e r N EPA an d th e APA NOCPIA m oves for dism issal of plaintiffs' claim s against it for violations of NEPA and the APA. "NEPA establishes a 'national policy [to] encourage productive and enjoyable harmony between man and his environment.'" Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S. Ct. 220 4, 220 9, 159 L. Ed. 2d 60 (20 0 4) (quoting 42 U.S.C. § 4231). To advance this policy, "NEPA im poses procedural requirem ents on federal agencies, requiring agencies to analyze the environm ental im pact of their proposals and actions." Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d 215, 224 (5th Cir. 20 0 6). NEPA's core m andate is that "federal agencies m ust, except in certain qualifying situations, com plete a detailed environm ental im pact statem ent ('EIS') for any m ajor federal action significantly affecting the quality of the hum an environm ent." O'Reilly v. U.S. Arm y Corps of Engineers, 477 F.3d 225, 228 (5th Cir. 20 0 7). "An agency is not required to prepare a full EIS if it determ ines--based on a shorter environm ental assessm ent ('EA')--that the proposed action will not 7 have a significant im pact on the environm ent." W inter v. N atural Res. Def. Council, Inc., 555 U.S. 7, 16, 129 S. Ct. 365, 372, 172 L. Ed. 2d 249 (20 0 8). Plaintiffs allege that NOCPIA com m itted num erous NEPA violations in connection with the City Park golf course project, including the production of an insufficient EA, the failure to produce an EIS, and the denial of an adequate tim e period for public com m ent. NEPA, however, does not provide a private right of action for violations of its provisions. Noe v. Metro. Atlanta Rapid Transit Auth., 644 F.2d 434, 436-39 (5th Cir. 1981); see also Highland Vill. Parents Grp. v. U.S. Fed. Highw ay Adm in., 562 F. Supp. 2d 857, 860 (E.D. Tex. 20 0 8) (citing Gulf Restoration N etw ork v. U.S. Dep't of Transp., 452 F.3d 362, 367 (5th Cir. 20 0 6)) (noting that because "NEPA does not provide a private right of action," challenges to the NEPA process m ust be pursued through the APA). And while a plaintiff can pursue judicial review of NEPAm andated decision-m aking under the APA, the APA does not authorize judicial review of actions by nonfederal defendants, such as NOCPIA. Resident Council of Allen Parkw ay Vill. v. U.S. Dep't of Hous. & Urban Dev., 980 F.2d 10 43, 10 55 (5th Cir. 1993) (holding that state housing authority was not an "agency" whose actions could be reviewed under the APA); Vieux Carre Prop. Ow ners, Residents & Associates, Inc. v. Brow n, 875 F.2d 453, 456 (5th Cir. 1989) ("We fail to understand, however, how APA-dictated reviewability 8 of the Corps' decisions allegedly violating the RHA gives the district court jurisdiction to enjoin such nonfederal entities as the Audubon Park Com m ission."). Thus, the Court finds that plaintiffs' claim s against NOCPIA have no basis in the law. Plaintiffs argue that the Fifth Circuit case of Nam ed Individual Mem bers of San Antonio Conservation Soc. v. Texas Highw ay Dep't, 446 F.2d 10 13, 10 27 (5th Cir. 1971), allows them to assert NEPA and APA claim s against NOCPIA despite its non-federal status. But that case is inapposite. There, the State of Texas tried to go forward with construction of a highway, even though the highway was a federal project, subject to NEPA, and the responsible federal agency had failed to conduct any environm ental review whatsoever. Id. at 10 15-16, 10 22. The court held that Texas could be enjoined from proceeding until the federal agency m et its NEPA obligations, noting that a contrary ruling would give allow Texas to "circum vent[] . . . an Act of Congress." Id. at 10 27. The court did not hold--or even consider the argum ent--that NEPA requires non-federal entities to them selves perform an environm ental review. Nor did it indicate that private plaintiffs m ay sue nonfederal entities directly for failure to perform any act allegedly required by NEPA or the APA. Indeed, in the years since the Nam ed Individuals case, the Fifth Circuit has repeatedly held that no such right of action exists. N oe, 644 9 F.2d at 436-39; Resident Council, 980 F.2d at 10 55. Thus, there is no jurisdictional basis for plaintiffs to assert NEPA or APA claim s against NOCPIA, and those claim s m ust be dism issed. B. Plain tiffs ' State Law Claim s Plaintiffs also raise claim s against NOCPIA under the Louisiana Public Records Law, the Louisiana Open Meeting Law, and the Public Trust Doctrine-a doctrine based on Article IX, Section 1 of the Louisiana Constitution and im plem enting state legislation.16 Because plaintiffs do not argue any independent basis for federal jurisdiction, these claim s m ay rem ain in only if the Court decides to exercise supplem ental jurisdiction over them under 28 U.S.C. § 1367. Section 1367(a) states that when a federal court has original jurisdiction, the court "shall have supplem ental jurisdiction over all other claim s that are so related to the claim s in the action within such original jurisdiction that they form part of the sam e case or controversy." 28 U.S.C. § 1367(a). To be part of "the sam e case or controversy," each separate claim "m ust derive from a com m on nucleus of operative facts." United Mine W orkers of Am erica v. Gibbs, 383 U.S. 715, 725 (1966). 16 See La. Const. art. IX § 1; Save Ourselves, Inc. v. Louisiana Envtl. Control Com m 'n, 452 So. 2d 1152, 1156 (La. 1984). 10 Here, plaintiffs' claim s against FEMA arise under NEPA and the APA and therefore invoke this Court's federal question jurisdiction. See 28 U.S.C. § 1331. But while plaintiffs' lawsuit is properly in federal court, there is virtually no relationship between plaintiffs' federal law claim s against FEMA and their claim s against NOCPIA under Louisiana law. Plaintiffs allege that FEMA violated NEPA by erroneously issuing a FONSI for the City Park golf course project and failing to com plete a full EIS. Plaintiffs further allege that FEMA provided an inadequate opportunity for public com m ent, in violation of the APA. When reviewing an agency's actions under the APA, a court will "uphold the agency's decision unless the decision is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Spiller v. W hite, 352 F.3d 235, 240 (5th Cir. 20 0 3). At issue is the agency's com pliance with m andated procedures and the adequacy of its decision-m aking process. See e.g., Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 10 3 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983). As such, the reviewing court looks prim arily to "the record before the agency at the tim e of its decision." Lum inant Generation Co. v. U.S. E.P.A., 675 F.3d 917, 925 (5th Cir. 20 12) (quoting Gey en v. Marsh, 775 F.2d 130 3, 130 9 (5th Cir. 1985)); see also Cam p v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 10 6 (1973) ("In applying [the arbitrary and capricious] standard, the focal point for 11 judicial review should be the adm inistrative record already in existence, not som e new record m ade initially in the reviewing court."). Here, the operative facts in plaintiffs' federal claim s center on the record that FEMA assem bled--a record containing, am ong other item s, analyses of soil properties, anim al habitats, drainage, and air quality at the proposed golf course site 17--and on how FEMA evaluated that record in light of its statutory m andates. Such inform ation sheds no light on whether, as plaintiffs allege, NOCPIA failed to com ply with public records requests and to post m eeting m inutes in violation of Louisiana law. The sam e is true of plaintiffs' Public Trust Doctrine claim . Assum ing that NOCPIA could be deem ed a public trustee and that plaintiffs have standing to sue for breach of trustee duties, the question would be whether NOCPIA acted reasonably in ensuring "environm ental protection 'insofar as possible and consistent with the health, safety, and welfare of the people.'" Save Ourselves, 452 So. 2d at 1156-57 (quoting La. Const. art. IX § 1). Thus, the Court would need to determ ine whether NOCPIA properly balanced the environm ental costs of its golf course proposal with "econom ic, social, and other factors" m andated by Louisiana law. Id. at 1157. It is true that there are 17 See R. Doc. 1-8. (FEMA's "Draft Environm ental Assessm ent"). 12 sim ilarities between NEPA environm ental review and the analysis that Louisiana law requires of public trustees. See id. at 1157-58. But supplem ental jurisdiction requires com m on facts, not com m onalities between state and federal law. The facts that m atter to plaintiffs' NEPA and APA claim s involve the record that FEMA assem bled and how FEMA evaluated that record in light of its statutory m andate. Those facts bear little relation to plaintiffs' Public Trust Doctrine claim , which relates to decisions that NOCPIA, a non-federal entity, m ade at a different tim e, based on a different record, and guided by a different set of constitutional and statutory standards. Thus, the Court finds that plaintiffs' Public Trust Doctrine claim lacks a "com m on nucleus of operative facts" binding it to any claim that is properly in federal court. United Mine W orkers, 383 U.S. at 725. For these reasons, the Court will not exercise supplem ental jurisdiction over any of plaintiffs' claim s against NOCPIA under Louisiana law. Those claim s are therefore dism issed under Rule 12(b)(1). 13 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant NOCPIA's m otion to dism iss plaintiffs' claim s against it for lack of jurisdiction. New Orleans, Louisiana, this _ _ 2nd_ _ _ day of Novem ber, 20 15. __ _________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 14
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