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National Wildlife Federation v. United States Army Corp. of Engineers

United States District Court, S.D. Illinois

November 25, 2014

NATIONAL WILDLIFE FEDERATION, PRAIRIE RIVERS NETWORK, MISSOURI COALITION FOR THE ENVIRONMENT, RIVER ALLIANCE OF WISCONSIN, GREAT RIVERS HABITAT ALLIANCE, and MINNESOTA CONSERVATION FEDERATION, Plaintiffs,
v.
UNITED STATES ARMY CORP. OF ENGINEERS; LT. GENERAL THOMAS P. BOSTICK, Commanding General and Chief of Engineers; MAJOR GENERAL MICHAEL C. WEHR, [1] Commander of the Mississippi Valley Division of the Army Corps of Engineers, Defendants.

MEMORANDUM AND ORDER

DAVID R. HERNDON, District Judge.

I. INTRODUCTION

This matter comes before the Court on Plaintiffs' Notice of Motion and Motion for a Preliminary Injunction (Doc. 14). Plaintiffs contend that the Defendants' management of the Upper Mississippi River System ("UMRS") violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq. They seek an injunction halting construction of any new river training structures in the UMRS pending the resolution of this case (Doc. 14-1). Specifically, Plaintiffs contend that the Environmental Impact Statement ("EIS") prepared by Defendant United States Army Corp of Engineers in 1976 has become obsolete, and that the Corps cannot go forward with three proposed new projects in the Middle Mississippi River ("MMR") (the portion of the Mississippi River between its confluence with the Ohio and Missouri Rivers) until it completes a Supplemental Environmental Impact Statement ("SEIS").

Defendants do not dispute the need for an SEIS and expect to have one completed by the end of 2016. But Defendants respond that they have complied with NEPA by analyzing the environmental impacts of the proposed projects in Environmental Assessments ("EAs"), wherein they determined the projects are unlikely to have a significant impact on the human environment. Defendants further contend that they are charged with maintaining a safe and dependable navigation channel on the Middle Mississippi River and that the proposed new projects are in furtherance of that mission.

Plaintiffs filed their motion for a preliminary injunction on July 3, 2014 (Doc. 14). Defendants filed their brief in opposition on July 29, 2014 (Doc. 21). This Court held a hearing on the motion on October 16, 2014, and took the matter under advisement. After carefully considering the arguments and evidence presented by the parties, both in their written submissions and during the hearing, the Court finds and concludes as follows.

II. FINDINGS OF FACT

A. The Corps, the Middle Mississippi River, and the Environment.

1. Through a series of acts beginning in 1824, Congress directed the Corps to create and maintain a navigation channel through the Mississippi River of sufficient depth to support year-round navigation. See Act of May 24, 1824, 4 Stat. 32, 33; Act of June 10, 1872, 17 Stat. 347; Act of Mar. 3, 1873, 17 Stat. 560; Act of June 25, 1910, Pub. L. No. 61-262, 36 Stat. 630; Act of Jan. 21, 1927, Pub. L. No. 69-560, 44 Stat. 1010.

2. For more than 100 years, the Corps has fulfilled that directive. On the Middle Mississippi River ("MMR"), the Corps relies primarily on "regulating works" such as river training structures (dikes), revetment (bank stabilization), and rock removal, all of which contract the flow of the river so that it scours the river bed. The Corps supplements these regulating works with operations and maintenance ("O&M") activities, such as dredging, though these are more costly and afford only temporary relief. The project to obtain and maintain the navigation channel in the Middle Mississippi River, known as the "Regulating Works Project, " includes both regulating works and O&M activities.

3. The Corps first prepared an EIS for the Regulating Words Project in 1976.[2] The purpose of the EIS was "to investigate environmental changes which have occurred on the Middle Mississippi River that may have been brought about by the 9-foot navigation project" (Administrative Record ("AR") MVS 6). The EIS included analysis of "the continuing attainment and operation and maintenance of a 9-foot-deep by 300-foot-wide navigation channel within the Mississippi River between the Ohio and Missouri Rivers by the use of channel contraction dikes, protective bankline revetments, and any necessary dredging" (AR MVS 6-8; MVS 33-69).

4. In 2012, the 1976 EIS was reviewed by an interdisciplinary team, called the Project Delivery Team ("PDT"), within the St. Louis District of the Corps. The PDT members compared the 1976 EIS with the current management of the project, examined potential new information to determine whether the EIS should be supplemented, and ultimately issued a report titled "Draft Review of the 1976 Final EIS: Mississippi River between the Ohio and Missouri Rivers Regulating Works" (AR MVS 667-712).

5. The PDT concluded that the project as described in the 1976 EIS had not substantially changed. Specifically, the PDT noted that while the configuration of dikes can vary widely, the basic configuration feature is the same: "namely, these are rock structures engineered to manage the location of sediment deposition for the purpose of maintaining the 9-foot navigation channel within the Mississippi River" (AR MVS 678). The PDT also found that the use of bendway weirs, a low level submerged rock dike, was not a substantial change to the project because "the EIS was broadly written and clearly referenced the construction of low dikes, '" and the EIS was not limited to the specific structures listed, as it also referenced future dike construction and allowed for flexibility in dike design construction (AR MVS 679).

6. The PDT report notes that "[w]hile configurations of river training structures have evolved over time to generate more effective results and to generate enhanced environmental benefits, the purpose and function of these structures themselves has changed very little over the years" (AR MVS 699).

7. The PDT determined, however, that new information and circumstances relevant to environmental concerns justified preparation of an SEIS (AR MVS 684-87; MVS 689-98; MVS 700). Specifically, the new information the PDT considered included: (1) the environmental effects of river training structures on benthic invertebrates and fisheries; (2) the importance of the floodplain and off-channel aquatic habitat to riverine organisms; (3) whether the maintenance of low-velocity fish-migration corridors need to be considered when designing river training structures to reduce potential impact on spawning fish; (4) the impact of dredging and disposal on the aquatic habitat of the main channel; (5) studies on the environmental impact from tow-boat traffic on the main channel and the mortality of fish from propellers; and (6) the fact that, subsequent to the preparation of the 1976 EIS, two species were placed on the federally endangered species list. Endangered species under NEPA are considered significant resources and an impact analysis of the project must be conducted for each alternative. ( Id. )

8. After the Pdt completed its review and report, it asked the Corps' Planning Center of Expertise for Inland Navigation (PCXIN) to review the report, as well as the 1976 EIS and the supporting reference material. To avoid undue influence on the review, the report reviewed by the PCXIN did not include the PDT's recommendation on how to proceed (AR MVS 713).

9. The PCXIN assembled a team of subject matter experts, who reviewed the documents and recommended a path forward. Like the PDT, the PCXIN determined that there had been "no substantial changes" to the Middle Mississippi River Regulating Works Project: "[e]quipment used to conduct dike and revetment construction/repairs is essentially the same, maintenance dredging methods are for the most part identical, and in fact the action has evolved in time to routine dike and revetment maintenance and less maintenance dredging" (AR MVS 713, 719). Nevertheless, the PCXIN also noted there was "persuasive evidence of a substantial body of new information... relevant to environmental concerns" (AR MVS 719) and accordingly, on December 20, 2013, the Corps issued a Notice of Intent ("NOI") to prepare an SEIS for the St. Louis District MMR Regulating Works Project (AR MVS 1021-22; 78 Fed. Reg. 77, 108 (Dec. 20, 2013)). The Corps expects to have a final SEIS completed by the end of 2016 (Feldmann Decl. ¶ 6).

10. In light of the Corps' mission to maintain the navigation channel and the time it will take to issue a final SEIS, the Corps prepared site-specific EAs for proposed work, including construction of new river training structures, in three areas: Eliza Point/Greenfield Bend ("Eliza Point"), Dogtooth Bend, and Mosenthein/Ivory ("Mosenthein") (the proposed work at the Mosenthein site is primarily new revetment work with only one new river training structure) ( Id. at ¶¶ 7-10).

11. The EAs "tiered" off the 1976 EIS[3] but considered significant new circumstances and information relevant to the environmental impacts of each alternative on the human environment, including the research on the effects of river training structures on flood levels and the cumulative impacts of the proposed action (AR MVS 2273-2301; 2320-2346 (Mosenthein); MVS 3075-3103; 3118-3143 (Eliza Point); and MVS 3895-3923; 3940-3965 (Dogtooth Bend)).

12. The Corps received and responded to comments on its publicly-issued draft EAs, including comments by Plaintiffs and their expert, Dr. Nicholas Pinter (AR MVS 2356-2465 (Mosenthein); MVS 3153-3198 (Eliza Point); MVS 3975-4062 (Dogtooth Bend)), and held a public hearing on the Dogtooth Bend EA (AR MVS 3975-4062).

13. Ultimately, the Corps determined that the new construction in the three proposed work areas was not likely to adversely affect the human environment and on April 17, 2014, it issued Findings of No Significant Impact ("FONSIs") for all three work areas (AR MVS 2271 (Mosenthein); MVS 3073 (Eliza Point); MVS 3893 (Dogtooth Bend)).

14. Plaintiffs filed their Complaint for Declaratory and Injunctive Relief on May 22, 2014 (Doc. 2). Defendants filed their Answer on August 11, 2014, challenging as affirmative defenses both the Court's subject matter jurisdiction and the Plaintiffs' standing to bring the lawsuit (Doc. 25).

B. Standing

15. Plaintiffs are nonprofit organizations formed and operated to protect wildlife. They have established conservation programs to restore rivers' natural functions and they take active roles in monitoring legislation and the actions of federal and state agencies that affect watershed management (Doc. 2 at 10-16; Doc. 49 at 8:3-18, 9:4-18, 11:1-19).

16. During the October 16, 2014 hearing, Plaintiffs presented two witnesses on the issue of standing: Dr. Clark Bullard and Jamie Nash-Mayberry. Plaintiffs have not presented any other testimony or affidavits to establish their constitutional standing.

17. Dr. Bullard is a retired professor of mechanical engineering at the University of Illinois in Champaign-Urbana. His specialty is in fluid mechanics and "large system optimization simulation" (Doc. 49 at 5). He serves on the Board of Directors for Plaintiff National Wildlife Federation ("NWF") and is NWF's representative in Illinois, Ohio, and Indiana. He was also the organization's Central Vice Chair for the intermountain states and has been a member of NWF off and on since 1970. Dr. Bullard is also a member of Plaintiff Prairie Rivers Network's ("PRN") Board of Directors ( Id. at 10).

18. Dr. Bullard is fascinated by rivers, and as canoeist and kayaker, he regularly enjoys and observes them. He has visited various unspecified portions of the Mississippi River, but he had not seen any of the sites at issue in this motion until October 15, 2014 - the day before the hearing. Dr. Bullard has not canoed at the Eliza Point, Dogtooth Bend, or Mosenthein/Ivory sites, but he plans to do so in the future.

19. Dr. Bullard has not conducted a formal analysis of the Mississippi River, but he is concerned that construction of river training structures and continuing implementation of the nine-foot channel project will increase flooding. He is also concerned that canoeists on the Mississippi River could become ensnared by notched, dike-type river training structures. He bases these concerns on his 40 years of observing rivers in the Upper Mississippi River area.

20. Ms. Nash-Mayberry is a member of Plaintiff PRN and a high school social studies teacher (Doc. 49 at 22). The school district where she teaches lies entirely in a flood plain between Grand Tower and Thebes. She has worked with her students for years to raise awareness about flooding-related issues. She is concerned about the effects of the proposed river training structures, particularly at Dogtooth Bend and Grand Tower, which are both in close proximity to where she lives and works. She is particularly concerned about the possibility that the proposed construction in those areas could lead to higher flood levels in her community.

III. CONCLUSIONS OF LAW

A. Standing

1. Plaintiffs National Wildlife Federation, Missouri Coalition for the Environment, River Alliance of Wisconsin, Great Rivers Habitat Alliance, and Minnesota Conservation Federation do not have standing.

1. Plaintiffs National Wildlife Federation ("NWF"), Missouri Coalition for the Environment ("MCE"), River Alliance of Wisconsin ("RAW"), Great Rivers Habitat Alliance ("GRHA"), and Minnesota Conservation Federation ("MCF") have failed to meet the requirements to show that they have constitutional standing to bring this lawsuit and seek preliminary injunctive relief.

2. Under Article III of the Constitution, federal courts are limited to hearing "Cases" and "Controversies." U.S. Const. Art. III. This provision limits the judicial power "to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law." Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). This restriction on the power of the courts "is founded in concern about the proper - and properly limited - role of the courts in a democratic society.'" Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Permitting a court to decide a case where the plaintiff does not have standing would "allow[] courts to oversee legislative and executive action" and thus "significantly alter the allocation of power... away from a democratic form of government." Id. at 493 (quotation omitted).

3. Standing requires that a federal court satisfy itself that the plaintiff has "alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court ...


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