City Park for Everyone Coalition et al v. Federal Emergency Management Agency et al, No. 2:2015cv00918 - Document 42 (E.D. La. 2016)

Court Description: ORDER & REASONS: Dismissing Plaintiffs' claims AS MOOT, and denying as moot 30 Motion for Summary Judgment; denying as moot 32 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 12/7/2016. (mmm)

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City Park for Everyone Coalition et al v. Federal Emergency Management Agency et al Doc. 42 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CITY PARK FOR EVERYONE COALITION, ET AL. VERSUS CIVIL ACTION NO. 15-918 FEDERAL EMERGENCY MANAGEMENT AGENCY, ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is plaintiffs City Park for Everyone Coalition, Kevin McDunn, and Christopher Lane’s motion for sum m ary judgment 1 and defendant Federal Em ergency Managem ent Agency’s (FEMA) cross-m otion for sum m ary judgm ent. 2 Because the Court finds that plaintiffs’ claim s are m oot, the Court DISMISSES the com plaint. I. BACKGROU N D This case centers on the New Orleans City Park Im provem ent Association’s (NOCPIA) plan to build an 18-hole golf course within New Orleans’ City Park and on FEMA’s decision to partially fund the project. City Park consists of 150 0 acres of m ulti-use parkland located within the City of 1 2 R. Doc. 30 . R. Doc. 32. Dockets.Justia.com New Orleans. 3 Before Hurricane Katrina, 525 acres of City Park land were allocated am ong four 18– hole golf courses. 4 While the South Course discontinued operations shortly before the storm made landfall, 5 the rem aining three courses (North, East, and West) sustained severe dam age from the high winds, flooding, and storm surge brought by Hurricane Katrina. 6 In 20 0 9, the North Course was fully repaired and resumed operations, but the East and West Courses rem ained out of com m ission. 7 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 portions of the East Course to create a new, single 18– hole golf course. 8 Those portions of the East Course not allocated to the new course— approximately 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. 9 To 3 4 5 R. Doc. 1-8 at 7 (FEMA’s “Draft Environm ental Assessment”). Id. Id. at 8; see also R. Doc. 1-6 at 9 (“New Orleans City Park Master Plan”). 6 7 8 9 R. Doc. 1-8 at 8. Id. Id. at 11. Id. at 11. 2 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 . 10 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 environmental im pacts of the proposed project as required under the National Environmental Policy Act (NEPA). 11 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 complete Environmental Im pact Statem ent (EIS) was not necessary. 12 The draft FONSI noted that the draft EA was available both online and at the Orleans Parish Library, and concluded by stating that if no substantive com m ents on the draft EA were received, the draft EA would becom e final. 13 10 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 government 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 government.”). 11 See R. Doc. 1-8. 12 See R. Doc. 1-9 (FEMA’s “Draft FONSI”). Under NEPA, agencies are not required to prepare a full EIS if its EA determ ines that the proposed action will not have a significant im pact on the environment. See 40 C.F.R. §§ 150 8.9(a), 150 8.13 (20 16). 13 R Doc. 1-9 at 5. 3 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 numerous 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 environmental justice im plications. Plaintiffs further allege the FEMA’s EA included inaccurate statements and that the agency gave too little tim e for public com m ent on its draft FONSI. As for NOCPIA, plaintiffs alleged 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 alleged that NOCPIA violated the Louisiana Public Records Law by responding inadequately to three requests for inform ation concerning its golf course plans. Finally, plaintiffs alleged 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 environmental im plications of building a new golf course in City Park, as required by Louisiana’s Public Trust Doctrine. At no point did plaintiffs seek 14 R. Doc. 1. 4 a prelim inary injunction to halt construction while the litigation was pending. On November 2, 20 15, this Court granted NOCPIA’s motion to dism iss plaintiffs’ federal claim s against NOCPIA and declined to exercise its supplem ental jurisdiction over plaintiffs’ state law claim s. 15 Therefore, NOCPIA is no longer a party to this litigation. On August 8, 20 16, plaintiffs filed their m otion for sum mary judgment on their rem aining claim s against FEMA. 16 On Septem ber 6, 20 16, FEMA filed its opposition to plaintiffs’ m otion and its cross m otion for sum mary judgment. 17 II. LEGAL STAN D ARD Plaintiffs argue that FEMA’s FONSI is arbitrary and capricious and that FEMA violated NEPA and the APA. They seek a declaratory judgment stating that FEMA violated NEPA and the APA and an injunction prohibiting FEMA from providing any additional funds to NOCPIA and from taking any further action towards the golf course. 18 FEMA argues that the golf course’s substantial com pletion renders plaintiffs’ claim s m oot, and in the 15 16 17 18 See R. Doc. 17. R. Doc. 30 . R. Doc. 32. R. Doc. 1 at 20 -21. 5 alternative, that FEMA did com ply with NEPA and the APA. Because federal courts have no constitutional authority to resolve claim s that have been rendered m oot, see, e.g., Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 525 (5th Cir. 20 0 8), the Court is obligated to resolve the m ootness issue as a threshold m atter of jurisdiction. See Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 20 0 7). When the court’s jurisdiction to resolve the case is at issue, 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 supplemented by undisputed facts and by the court’s resolution of disputed facts. Den N orske Stats Oljeselskap 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). Mootness is the doctrine of standing in a tim e fram e. Envtl. Conservation, 529 F.3d at 525. “The requisite personal interest that m ust exist at the com m encem ent of litigation (standing) m ust continue throughout its existence (m ootness).” Id. (citing United States Parole Com m ’n v. Geraghty , 445 U.S. 388, 397 (1980 )). As a general rule, “any set of circum stances that elim inates actual controversy after the com m encement of a lawsuit renders that action m oot,” Ctr. for Individual Freedom v. Carm ouche, 449 F.3d 655, 661 (5th Cir. 20 0 6), and the case m ust be 6 dism issed, Genesis Healthcare Corp. v. Sy m czy k, 133 S. Ct. 1523, 1528 (20 13). A case should not be declared m oot “[a]s long as the parties m aintain a ‘concrete interest in the outcom e’ and effective relief is available to rem edy the effect of the violation . . . .” Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (citation om itted). But a case will becom e m oot when “there are no longer adverse parties with sufficient legal interests to m aintain the litigation,” or “when the parties lack a legally cognizable interest in the outcom e” of the litigation. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 20 0 4). As the Suprem e Court has noted, “it is not enough that a dispute was very m uch alive when the suit was filed; . . . [t]he parties m ust continue to have a personal stake in the outcom e of the lawsuit.” Lew is v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990 ) (citations and internal quotation m arks om itted). A. Mo o tn e s s — Applicatio n FEMA argues that because it has already provided the funds obligated towards the golf course and because the golf course is substantially com pleted, plaintiffs’ claims are m oot. 19 In support, FEMA subm its the sworn declaration of Robert Becker, 20 the CEO of NOCPIA, and the sworn 19 20 R. Doc. 32-1 at 11-12. R. Doc. 32-4. 7 declaration of Albert Walters, FEMA’s Public Assistance Operations Supervisor for Louisiana. 21 Becker attests that as of August 9, 20 16, the golf course in question was 94 percent com plete, and that over $ 12,0 0 0 ,0 0 0 in public funds have been expended in connection with the course. 22 Walters attests that FEMA approved $ 5,537,0 52.12 in funding for the golf course, and has already obligated $ 4,339,967 (which accounts for a $ 1,197,0 85.12 actual insurance reduction). 23 Walters also attests that FEMA transferred the funds to NOCPIA on August 23, 20 13. 24 Additionally, FEMA points to the cases of Fla. W ildlife Fed’n v. Goldschm idt, 611 F.2d 547 (5th Cir. 1980 ), Richland Park Hom eow ners Ass’n v. Pierce, 671 F.2d 935 (5th Cir. 1982), and Bay ou Liberty Ass’n, Inc. v. U.S. Arm y Corps of Eng’rs, 217 F.3d 393 (5th Cir. 20 0 0 ) to argue that substantial com pletion of a project can m oot NEPA claim s. Richland noted that “[b]ecause NEPA contem plates a future-looking agency inquiry, the courts have been reluctant, at least in the absence of bad faith violations, to grant relief after the challenged project has been substantially or wholly com pleted.” Richland, 671 F.2d at 941. Both Goldschm idt and Bay ou 21 22 23 24 R. Doc. 32-3. R. Doc. 32-4 at 1-2. R. Doc. 32-3 at 2. Id. 8 Liberty found that substantial completeness of the challenged project m ooted the plaintiffs’ NEPA claim s for declaratory and injunctive relief. Goldschm idt, 611 F.2d at 549; Bay ou Liberty , 217 F.3d at 396. Plaintiffs subm it no evidence challenging the declarations of Walters or Becker, and concede that the golf course is (at the tim e these m otions were filed) 94 percent com plete. 25 Instead, plaintiffs argue that neither substantial com pletion nor 94 percent com pletion of the course renders their claim s m oot, as the project is still incom plete. 26 In support, plaintiffs rely on two Fifth Circuit cases, Coliseum Square Ass’n Inc. v. Jackson, 465 F.3d 215 (5th Cir. 20 0 6), and Vieux Carre Prop. Ow ners, Residents & Associates, Inc. v. Brow n, 948 F.2d 1436 (5th Cir. 1991), as well as FEMA’s alleged inconsistencies as to the extent of completion of the course. Plaintiffs’ argument is unavailing. First, plaintiffs attem pt to uncover an issue of material fact based on FEMA’s adm itting both that the course is “not com plete” and that the course is “94% com plete.”27 This argument is m eritless. There is no inconsistency in stating that something that is 94 percent com plete is not com plete, but is substantially com plete. Further, plaintiffs have neither subm itted any evidence nor pointed to anything at all 25 26 27 R. Doc. 37 at 4. Id. at 4-5. Id. at 5. 9 in the record to rebut FEMA’s evidence that the project is 94 percent com plete. Therefore, there is no issue of m aterial fact as to the extent of the project’s completion. Additionally, neither Coliseum Square nor Vieux Carre supports plaintiffs’ contention that substantial com pletion does not m oot plaintiffs’ claim s, and plaintiffs do not point to any caselaw challenging the holdings in Bay ou Liberty and Goldschm idt. Coliseum Square, as here, addressed a m ootness challenge to an action seeking a declaratory judgm ent that the Department of Housing and Urban Development (HUD) failed to com ply with NEPA in relation to a housing development project and an injunction com pelling HUD to withhold federal funds from the project until HUD fully com plied with NEPA. 465 F.3d at 225. Though the Coliseum Square court found that the action was not m oot, id. at 227, the facts of that case showed that the challenged project was not substantially com plete. The housing developm ent project was a m ulti-faceted development that called for “the construction of new low-incom e housing, new m arket rate housing, a senior care facility, and a shopping center.” Id. at 225. Though the court noted that the shopping center and the first phase of housing units had been completed, the court found that “significant projected construction and renovation rem ain unfinished.” Id. at 227. Further, the construction of “20 0 m ixed- 10 incom e rental units, 64 affordable rental housing units for the elderly, a 250 – unit m arket rate rental retirem ent com m unity, and 20 0 m arket rate condom inium units; additional sm all-scale com mercial ventures, . . .; and construction or rehabilitation of affordable rental housing (90 units) and affordable individually owned houses (50 units)” had not even begun. Id. Therefore, the facts of Coliseum Square are not rem otely sim ilar to a situation in which a golf course is 94 percent com plete, and Coliseum Square is no barrier to the conclusion that the golf course’s substantial com pletion m oots plaintiffs’ claim s. Vieux Carre does not help plaintiffs either. In Vieux Carre, an historic building preservation group asserted that the U.S. Arm y Corps of Engineers approved construction of a park and aquarium without following the procedures set forth in the National Historic Preservation Act (NHPA). 948 F.2d at 1438. After an appeal and remand to the district court, the district court dism issed the suit stating that the claim s were now m oot because construction of the aquarium and park had been substantially com pleted. Id. at 1439-40 . The Fifth Circuit reversed the district court’s finding of m ootness, stating that “the law is clear that a suit is m oot only when it can be shown that a court cannot even ‘theoretically grant’ relief. Mere ‘[d]ifficulties 11 in form ulating a rem edy in an otherwise living case do not evidence the absence of a case or controversy.’” Id. at 1446 (citations om itted). But the Fifth Circuit has already distinguished Vieux Carre from a NEPA case nearly identical to this one in Bay ou Liberty . 217 F.3d at 397. Bay ou Liberty addressed a NEPA challenge to a perm it issued under the Clean Water Act for a construction project that had been substantially com pleted. Id. at 397. There, as here, the plaintiffs sought declaratory and injunctive relief, and pointed to Vieux Carre to argue that its NEPA claim s were not m oot. In distinguishing Vieux Carre, the Bay ou Liberty court relied on the fact that in Vieux Carre it was im possible to know what effect a NHPA review would have because the Corps failed to conduct the review, and therefore the review process could have theoretically resulted in m easures to m itigate the adverse effects of the construction project. Id. at 397. Unlike in Vieux Carre, in Bay ou Liberty the Corps issued an EA and FONSI in com pliance with NEPA. Id. at 396. Because there had been a review under NEPA, any “possible effects of a NEPA review [were] not theoretical.” Id. at 397 (citations om itted). The Fifth Circuit went on to state that it “interpreted Vieux Carre’s instruction to dism iss claims as moot only when a court cannot even theoretically grant relief to m ean ‘theoretical not in the sense that we have 12 im agined possibilities beyond those requested in the complaint, but rather in the sense that we [have] given the plaintiff the benefit of the doubt as to whether certain requested relief would in fact ease or correct the alleged wrong.’” Id. at 397 (citing Harris v. City of Houston, 151 F.3d 186, 190 (5th Cir. 1998)). But because the project had been substantially com pleted, even if the Bay ou Liberty court granted the requested declaratory and injunctive relief, it would be meaningless. Id. (“[n]ow that the construction on the retail com plex has been substantially com pleted, even giving the [plaintiff] the com plete benefit of the doubt by assum ing that we would suspend the perm it, there would be no meaningful relief”). As in Bay ou Liberty (and unlike Vieux Carre), here there has been a review under NEPA, and FEMA’s draft EA and FONSI detail FEMA’s conclusion (and the reasoning behind it) that the golf course would not result in significant adverse impacts to the quality of the environm ent. 28 Therefore, the results of the review process are known and not theoretical. Further, plaintiffs’ requested relief will not have any meaningful effect. The FEMA funding has already been transferred, and the golf course is substantially com pleted. NOCPIA is no longer a party to this litigation, and the Court generally cannot enjoin non-parties. 28 R. Doc. 1-9 at 4. 13 See Fed. R. Civ. P. 65(d)(2); W affenschm idt v. MacKay , 763 F.2d 711, 717 (5th Cir. 1985). While the Court could enjoin FEMA from providing any additional funding to NOCPIA or from taking action related to the golf course, it cannot stop NOCPIA from finishing the course with funding from other sources, a fact that plaintiffs readily acknowledge. 29 Additionally, the Court cannot “undo what has already been done.” Goldschm idt, 611 F.2d at 549. Therefore, any declaratory relief regarding FEMA’s alleged noncom pliance with NEPA or injunctive relief against FEMA would not have any m eaningful effect as to the alleged environm ental harms. Bay ou Liberty , 217 F.3d at 396-97. Because the substantial com pletion of the golf course has foreclosed any meaningful relief that would flow from granting plaintiffs’ requested relief, this action has become m oot. Therefore, the Court will not reach the substance of plaintiffs’ NEPA and APA challenges. 29 Plaintiffs’ response in opposition to FEMA’s m otion for sum m ary judgm ent states that “[s]hould the CPIA wish to continue building the golf course, it should be required to use only non-federal funds.” R. Doc. 37 at 5. 14 III. CON CLU SION For the foregoing reasons, the Court DISMISSES plaintiffs’ claim s AS MOOT, and the Court DENIES AS MOOT plaintiffs’ and defendant’s m otions for sum m ary judgment. 7th New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 15

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