Gulf Restoration Network et al v. U.S. Army Corps of Engineers et al, No. 2:2015cv06193 - Document 31 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting 19 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Sarah S. Vance on 9/19/16. (jjs)
Download PDF
Gulf Restoration Network et al v. U.S. Army Corps of Engineers et al Doc. 31 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GULF RESTORATION NETWORK, ET AL., VERSUS CIVIL ACTION NO. 15-6193 U.S. ARMY CORPS OF ENGINEERS, ET AL. SECTION “R” (2) ORD ER AN D REASON S Defendants United States Army Corps of Engineers, Lt. General Thom as P. Bostick, in his official capacity, Colonel Richard L. Hansen, in his official capacity, and Secretary of the Arm y Eric K. Fanning, in his official capacity, (collectively, the Corps) m ove to dism iss plaintiffs’ First Am ended Com plaint for lack of subject m atter jurisdiction. Because the Court finds that plaintiffs have failed to challenge a final agency action, the m otion is granted. I. BACKGROU N D According to plaintiffs’ com plaint, Maurepas Pipeline, LLC plans to build an oil pipeline through the Maurepas Basin, one of the Gulf Coast’s largest wetlands areas. 1 Consistent with its obligations under the Clean Water Act, see 33 U.S.C. § 1311(a), Maurepas Pipeline sought a dredge and fill perm it for its project from the Army Corps of Engineers. 2 Section 40 4 of the Clean Water Act authorizes the Secretary of the Arm y, acting through the Corps, to issue a perm it for the discharge of dredged or fill m aterial into navigable waters “after notice and opportunity for public hearings.” 33 U.S.C. § 1344(a). The public notice required by the statute “is the prim ary method of advising all interested parties of the proposed activity for which a perm it is sought and of soliciting com m ents and inform ation necessary to evaluate the probable im pact on the public interest.” 33 C.F.R. § 325.3(a). Accordingly, such notice m ust “include sufficient inform ation to give a clear understanding of the nature and m agnitude of the activity to generate meaningful com ment.” Id. The Corps issued a public notice regarding the Maurepas Pipeline project on J une 8, 20 15. 3 The notice announced a 30 -day public com m ent period, concluding on J uly 8, 20 15. 4 Plaintiffs allege that the public notice 1 2 3 4 R. Doc. 12 at 1, 11. Id. at 1. Id. at 14. Id. 2 failed to com ply with section 325.3(a)’s disclosure requirem ent in several ways. 5 First, the public notice allegedly did not provide information about alternative “sites and activities” for the project. 6 Second, the notice included a sum m ary of Maurepas Pipeline’s perm it application, but not the full application. 7 Third, the public notice allegedly lacked “any meaningful inform ation” regarding environmental im pact. 8 Maurepas Pipeline’s plan for m itigating Fourth, the notice did not discuss possible “cum ulative im pacts” associated with the project. 9 Plaintiffs allege that these om issions frustrated their ability to asses and provide m eaningful com ment on Maurepas Pipeline’s application. 10 On September 15, 20 15, plaintiffs sent the Corps a letter requesting that the agency reopen the public comm ent period. 11 The Corps refused, and this suit followed on November 20 , 20 15. 12 com plaint on Decem ber 22, 20 15. 13 5 6 7 8 9 10 11 12 13 Id. Id. Id. at 15. Id. Id. Id. at 15-16. Id. at 17. R. Doc. 1. R. Doc. 12. 3 Plaintiffs am ended their In the First Am ended Com plaint, plaintiffs ask the Court to declare the Corps’ public notice regarding the Maurepas Pipeline application inadequate, and order the Corps to issue new public notice and reopen the com ment period. 14 On September 12, 20 16, the Corps notified the Court that it had issued a Clean Water Act section 40 4 perm it to Maurepas Pipeline in J uly of 20 16. 15 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) requires dism issal of an action if the court lacks jurisdiction over the subject m atter of the plaintiff’s claim . Motions subm itted under Rule 12(b)(1) allow a party to challenge the court’s subject m atter jurisdiction based upon the allegations on the face of the com plaint. Barrera– Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of Dallas, Tex., No. 0 3– 2223, 20 0 6 WL 1450 420 , at *2 (N.D. Tex. May 24, 20 0 6). 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 supplemented by undisputed facts and by the court’s resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac 14 15 Id. at 19. R. Doc. 30 at 2. 4 Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); see also Barrera– Montenegro, 74 F.3d at 659. The plaintiff bears the burden of dem onstrating that subject m atter jurisdiction exists. See Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). When exam ining a factual challenge to subject m atter jurisdiction that does not im plicate the m erits of plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Arena v. Gray bar Elec. Co., 669 F.3d 214, 223 (5th Cir. 20 12). Accordingly, the Court may consider m atters outside the pleadings, such as testim ony and affidavits. See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15). A court’s dism issal of a case for lack of subject m atter jurisdiction is not a decision on the merits, and the dism issal does not necessarily prevent the plaintiff from pursuing the claim in another forum . See Cox, Cox, Filo, Cam el & W ilson, L.L.C. v. Sasol N . Am ., Inc., 544 F. App’x 455, 456 (5th Cir. 20 13). III. D ISCU SSION In its m otion to dism iss, the Corps argues that this Court lacks subject m atter jurisdiction for three reasons: 1) plaintiffs fail to challenge any final agency action; 2) plaintiffs’ claim s are not ripe for judicial review; and 3) 5 plaintiffs lack standing. Because the Court finds that plaintiffs have failed to challenge a final agency action, it does not reach the Corps’ other argum ents. The Adm inistrative Procedure Act accords judicial review to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the m eaning of a relevant statute.” 5 U.S.C § 70 2. “Final agency action, however, is a jurisdictional prerequisite of judicial review.” Louisiana State v. U.S. Arm y Corps of Eng’rs, No. 1530 962, 20 16 WL 44460 67, at *7 (5th Cir. Aug. 23, 20 16). There are “two conditions that generally m ust be satisfied for agency action to be ‘final’ under the APA.” U.S. Arm y Corps of Eng’rs v. Haw kes Co., 136 S. Ct. 180 7, 1813 (20 16). “First, the action m ust m ark the consum mation of the agency’s decisionm aking process—it m ust not be of a m erely tentative or interlocutory nature. And second, the action m ust be one by which rights or obligations have been determ ined, or from which legal consequences will flow.” Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)); see also Louisiana State, 20 16 WL 44460 67 at *5 (stating that final agency action “occurs when the agency has ‘asserted its final position on the factual circum stances underpinning’ the agency action” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 483 (20 0 4)). 6 As an initial m atter, the Court considers the effect of the Corps’ recent revelation that it issued a Clean Water Act section 40 4 perm it to Maurepas Pipeline in J uly of 20 16. 16 Although the issuance of a perm it likely constitutes a final agency action, this Court m ay exercise jurisdiction over this case only if plaintiffs’ complaint, as and when filed, challenges a final agency action. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 10 68, 10 79 (7th Cir. 20 16); Leigh v. Salazar, No. 11-60 8, 20 12 WL 2367823, at *2 n.2 (D. Nev. J une 21, 20 12); Malam a Makua v. Rum sfeld, 136 F. Supp. 2d 1155, 1161 (D. Haw. 20 0 1); see also Hom e Capital Collateral, Inc. v. F.D.I.C., 96 F.3d 760 , 762 (5th Cir. 1996) (“Subject m atter jurisdiction is determ ined at the tim e the com plaint was filed.”). The Corps’ subsequent granting of the Maurepas Pipeline permit therefore does not alter the finality analysis. Plaintiffs argue that although the Corps had not issued a final decision on whether to grant the Maurepas Pipeline perm it at the tim e this suit was filed, the Corps’ decision to close the com m ent period constitutes a final agency action. 17 It was at this point, according plaintiffs, that the allegedly 16 17 R. Doc. 30 at 2. R. Doc. 20 at 3. 7 insufficient public notice “becam e final.”18 Because the challenged action m eets neither prong of the Bennett test, the Court rejects this argument. Under the first prong, the Corps’ decision is plainly the sort of interlocutory action that does not “mark the consum mation of the agency’s decisionm aking process.” Bennett, 520 U.S. at 177-78; see also N at’l W ildlife Fed’n v. Adam kus, 936 F. Supp. 435, 443 (W.D. Mich. 1996) (“Consideration of public com m ent is an interm ediate stage in the process of creating a final agency action; it is a prelim inary or procedural action subject to review upon final agency action.”). The public com m ent procedure exists to “evaluate the probable im pact on the public interest,” 33 C.F.R. § 325.3(a), and thereby inform the Corps before it takes final action. Plaintiffs tacitly concede this point when they describe their injury as being “wrongfully deprived of their only opportunity to review and com m ent on the Maurepas [Pipeline] perm it application.”19 Because the notice and com m ent period is a m ere step on the way to perm it approval or denial, plaintiffs m ust table their grievances until the perm itting process is com plete. See 5 U.S.C. § 70 4 (perm itting review of a “prelim inary, procedural, or interm ediate agency action or ruling not directly reviewable . . . on the review of the final agency action”). 18 19 Id. R. Doc. 12 at 17. 8 Plaintiffs’ claim fails the second Bennett prong for nearly the sam e reason. At the tim e of filing, the Corps had not yet m ade a decision to grant or deny the perm it. Therefore, no legal consequences flow from its decision to close the com m ent period. See Texas v. Equal Em ploy m ent Opportunity Com m ’n, No. 14-10 949, 20 16 WL 3524242, at *8 (5th Cir. J une 27, 20 16) (“‘[L]egal consequences’ are created whenever the challenged agency action has the effect of com m itting the agency itself to a view of the law that, in turn, forces the plaintiff either to alter its conduct, or expose itself to potential liability.”). Although plaintiffs would like to play a greater role in the Corps’ decision m aking process, plaintiffs’ legal rights have not been altered by the allegedly prem ature closure. To resist this conclusion plaintiffs allege that they have suffered an “inform ational injury,” and that, because there is no indication that the Corps will reopen the com m ent period, this inform ational deprivation is a final action. This argum ent fails for three reasons. First, although a statute m ay, in som e circum stances, create a judicially cognizable right to inform ation, see, e.g., Ctr. for Biological Diversity , Inc. v. BP Am . Prod. Co., 70 4 F.3d 413, 429 (5th Cir. 20 13) (“This is the kind of concrete inform ational injury that the [Em ergency Planning and Com m unity Right-to-Know Act] was designed to redress.”), the notice and com ment procedure at issue here does not create such a right. 9 The procedures challenged by plaintiffs exist only to facilitate the section 40 4 perm itting process; if Maurepas Pipeline had never sought a perm it, the Corps would have no obligation to release any inform ation or accept any com ment. Rejecting an analogous claim under the Forest Service Decisionm aking and Appeals Reform Act (ARA), the Ninth Circuit explained at length why a notice and com ment provision does not give rise to a freestanding inform ational injury claim : To ground a claim to standing on an inform ational injury, the ARA m ust grant a right to inform ation capable of supporting a lawsuit. See generally Cass R. Sunstein, Inform ational Regulation and Inform ational Standing: Akins and Bey ond, 147 U. Pa. L. Rev. 613, 642– 43 (1999) (concluding that the “principal question after Akins, for purposes of ‘injury in fact,’ is whether Congress or any other source of law gives the litigant a right to bring suit”). Notice, of course, is a form of inform ation (inform ation that certain projects are being proposed), however Congress’s purpose in m andating notice in the context of the ARA was not to disclose inform ation, but rather to allow the public opportunity to com m ent on the proposals. Notice is provided as a predicate for public comm ent. . . . In other words, the ARA grants the public a right to process and to participation. Even though these rights necessarily involve the dissem ination of inform ation, they are not thereby tantam ount to a right to inform ation per se. W ilderness Soc., Inc. v. Rey , 622 F.3d 1251, 1259 (9th Cir. 20 10 ) (em phasis in original). Because plaintiffs have no legally cognizable right to inform ation under section 40 4, the Corps’ choice to withhold inform ation is not a legal consequence under Bennett. 10 The second reason that plaintiffs’ inform ational injury argum ent fails is that, as revealed by their own pleadings, plaintiffs’ actual claim ed injury is not deprivation of inform ation but rather alleged exclusion from effective participation in the perm itting process. In the First Am ended Com plaint, plaintiffs allege that they “are adversely affected and aggrieved by the Corps’ actions because they are unable to generate meaningful input about this project and its alleged m itigation plans.”20 Plaintiffs’ requested relief includes “[a]n order com pelling the Corps to issue a new public notice and accept public com m ent on a com plete Maurepas application.”21 As dem onstrated by the complaint, plaintiffs’ alleged injury is procedural rather than inform ational. Plaintiffs therefore do not face a legal consequence as contem plated in Bennett. See Sum m ers v. Earth Island Inst., 555 U.S. 488, 496 (20 0 9) (“[D]eprivation of a procedural right without som e concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”). Finally, the Court finds that accepting plaintiffs’ argum ent would be inconsistent with the “‘pragm atic’ approach [that] m ust be taken when deciding whether an agency action is ‘final.’” Texas v. Equal Em ploy m ent 20 21 Id. at 5. Id. at 19. 11 Opportunity Com m ’n, No. 14-10 949, 20 16 WL 3524242, at *7 (5th Cir. J une 27, 20 16). The lim itation of judicial review to final agency actions insulates the adm inistrative decisionmaking process from prem ature judicial interference and ensures that courts consider concrete, rather than abstract, disputes. The Court finds that accepting plaintiffs’ proposed expansion of the universe of final agency action threatens this sensible separation between judicial and adm inistrative functions. IV. CON CLU SION For the reasons stated above, the Court GRANTS defendants’ Motion to Dism iss. Accordingly, plaintiffs’ claim s are DISMISSED WITHOUT PREJ UDICE. New Orleans, Louisiana, this _19th _ day of Septem ber, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 12