Altamaha Riverkeeper, Inc. v. U.S. Army Corps of Engineers ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10746 ELEVENTH CIRCUIT
FEBRUARY 2, 2009
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00186-CV-2
ALTAMAHA RIVERKEEPER, INC.,
JANE FRASER FULCHER,
Plaintiffs-Appellants,
versus
U.S. ARMY CORPS OF ENGINEERS,
LT. GENERAL CARL A. STROCK,
U.S. Army Corps of Engineers,
COLONEL MARK S. HELD,
U.S. Army Corps of Engineers,
Savannah District,
Defendants-Appellees,
MARY GEARON,
ROBERT FISHER,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 2, 2009)
Before BIRCH and PRYOR, Circuit Judges and STROM,* District Judge.
PER CURIAM:
This case involves a dispute between Altamaha Riverkeeper, Inc. and Jane
Fraser Fulcher (collectively, “Appellants”) and the United States Army Corps of
Engineers and others (“the Corps”) over authorizations issued by the Corps that
would allow the filling of wetlands located on Sea Island, Georgia. The Appellants
appeal two orders from the district court – the first order denying their motion to
supplement the administrative record and the second granting the Corps’ motion to
dismiss the case as moot. As for the first order, the Appellants argue that
supplementation of the record is appropriate because the Corps acted in bad faith.
As for the second, the Appellants contend that the case remains a live one because
of a disagreement between Georgia and the Corps regarding the Corps’ issuance of
a general permit authorizing minor discharges of dredged or fill materials into U.S.
waters. Because we conclude that this suit is moot, we lack jurisdiction to review
*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska,
sitting by designation.
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the denial of the motion to supplement the administrative record. Accordingly, we
AFFIRM.
I. BACKGROUND
Before we recount the facts underlying the issues in this appeal, we briefly
sketch the statutory and regulatory framework regarding the issuance of permits by
the Corps under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.
A. Statutory and Regulatory Framework
The CWA is designed to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Towards that
end, the CWA prohibits the discharge of any pollutant, including dredged or fill
material, into navigable waters unless authorized by a CWA permit. 33 U.S.C §
1311(a). The Corps is charged with issuing such permits pursuant to 33 U.S.C. §
1344; 33 C.F.R. § 323.6(a). The Corps issues two main types of permits for
dredge and fill activities: individual permits and general permits. See 33 C.F.R. §
323.2(g), (h). Individual permits are issued on a case-by-case basis and general
permits, or nationwide permits (“NWPs”), are issued “on a State, regional, or
nationwide basis for any category of activities involving discharges of dredged or
fill material if . . . the activities in such category are similar in nature . . . and will
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have only minimal cumulative adverse effect on the environment.” 33 U.S.C. §
1344(e)(1); 33 C.F.R. § 323.2(g). NWPs are “designed to regulate with little, if
any, delay or paperwork certain activities having minimal impacts.” 33 C.F.R. §
330.1(b). NWP 18 is a general permit that covers minor discharges of dredge or
fill materials into U.S. waters.
Under the regulations applicable to nationwide permits, the Corps may
modify an NWP, but only to further condition or restrict its applicability. See 33
C.F.R. § 330.1(d). In this case, the Corps’ regional office in Savannah, Georgia
(with jurisdiction over Sea Island) placed such a condition on NWP 18 which
prohibited its utilization in “tidal waters.”1 The condition is known as Regional
Condition #30 (“RC 30”).
B. Case History
The district court has already provided a detailed rendition of the facts
underlying the issues in this case in its orders of 27 October 2006 and 21 June
2007. R1-29, 38. Accordingly, we need only summarize those facts specifically
germane to the issues before us on appeal.
On 30 January 2006, Mary Gearon (“Gearon”) and Robert Fisher (“Fisher”)
1
“Tidal waters” are defined as “waters that rise and fall in a predictable and measurable
rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the
rise and fall of the water surface can no longer be practically measured in a predictable rhythm
due to masking by hydrologic, wind, or other effects.” 33 C.F.R. § 328.3(f).
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applied to the Corps for authorization to fill existing wetlands on their respective
Sea Island properties.2 R1-29 at 3. Gearon and Fisher hired a private
environmental firm, Sligh Environmental Consultants, Inc. (“Sligh”) to file the
applications on their behalf. The applications specifically stated that the proposed
project site was not located in tidal waters. Id. at 3-4; Administrative Record
(“AR”) at 123, 247. The Corps conducted a desktop review of the applications and
issued Gearon and Fisher the requested permits on 9 March and 6 March 2006,
respectively. AR at 100; 223.
Fulcher, a Sea Island resident, contacted the Corps on 21 March 2006 and
asked them to conduct a field study of Gearon and Fisher’s properties to ensure
that the subject wetlands were not tidal. AR at 87. The Corps complied and
dispatched Mark Padgett (“Padgett”), a project manager, to both sites. Padgett
concluded that the properties were not tidally influenced and verified the
information contained in Gearon and Fisher’s initial applications. AR at 85.
Shortly thereafter, Donald Stack, Appellant’s counsel, wrote the Corps and
reiterated Fulcher’s concerns about the properties in question. AR 77-79. In
response, the Corps conferred with an employee of the Georgia Department of
2
Gearon and Fisher were defendants in the action before the district court but were
dismissed from the case pursuant to the parties’ agreement at a settlement conference on 11
October 2007. R2-52.
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Natural Resources, Coastal Resources Division, who also had visited the sites and
confirmed that the wetlands were freshwater and not tidal. AR at 74. In addition,
the Corps required Gearon and Fisher to “measure the tidal range . . . on the
boundaries of the two properties during the next spring tide” and threatened
revocation of the permits if the measurements were not made. AR at 62. The
measurements were made and, once again, it was determined that the wetlands at
issue were not subject to tidal fluctuations. AR at 43-45.
Over the next few months, the Appellants continued to send the Corps
additional information in support of their contention that the wetlands were tidal.
The Corps considered the information, which included video excerpts and findings
and reports from two consultants, but again concluded that the wetlands were not
tidal. Accordingly, the Corps refused to revoke the NWP 18 permits issued to
Gearon and Fisher. AR at 10-12. On 23 August 2006, Gearon and Fisher began
filling the wetlands on their project sites and the Appellants filed suit the next day
and asked the court for a preliminary injunction. R1-1 at 1.
In their motion for a preliminary injunction, the Appellants claimed, among
other things, that the Corps’ characterization of the wetlands at issue as non-tidal
was arbitrary and capricious and in conflict with their own regulatory scheme. The
Appellants contended that RC 30 specifically prohibited the issuance of NWP 18
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permits in tidal waters and, therefore, the Corps’ conduct was essentially in
violation of its own regulations. R1-29 at 9-10. We also note that at this point in
the litigation, the Appellants urged the district court to close the administrative
record as of the issuance of the permits on 6 and 9 March 2006. R1-29 at 9 n.5.
The court declined the invitation and decided instead that the administrative record
properly encompassed all of the information contained in the certified
administrative record submitted by the Corps on 6 October 2006. R1-29 at 10-11
n.6. The district court denied the motion for a preliminary injunction.
After filing suit, the Appellants continued to gather information in support of
their position that the wetlands at issue were tidal in nature. On 29 December
2006, the Appellants reversed course and petitioned the district court to
supplement the record with information gathered after their complaint was filed.
R1-31. The district court denied their request and found that they had failed to
make the requisite showing of bad faith by the Corps which would justify
consideration of material outside of the record. R1-38 at 8.
On 12 March 2007, the Corps announced the reissuance of all existing
NWPs with a few modifications. R2-42, Exh. A at 1. Then on 3 May 2007, the
Corps’ South Atlantic Regional Commander approved the Savannah District’s new
regional conditions. The adoption of these new regional conditions eliminated RC
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30 as of 3 May 2007. Id. at 2. Accordingly, NWP 18 permits were no longer
prohibited in tidal waters. Shortly thereafter, the Corps filed a motion to dismiss
the case as moot because RC 30 had been removed from NWP 18 in the Savannah
District. The district court granted the motion and this appeal followed.
II. DISCUSSION
We review a district court’s denial of a motion to supplement the
administrative record for abuse of discretion. See Preserve Endangered Areas of
Cobb’s History, Inc. (PEACH) v. United States Army Corps of Eng’rs, 87 F.3d
1242, 1246-47 (11th Cir. 1996). Questions of mootness are reviewed de novo.
Tanner Adver. Group v. Fayette County, GA 451 F.3d 777, 784 (11th Cir. 2006)
(en banc). Because issues of mootness affect our jurisdiction to review the merits
of an appeal, we first consider whether this suit is moot.
The Appellants contend that the district court erred in granting the Corps’
motion because, although RC 30 has been eliminated, Georgia’s Coastal Resources
Division (“CRD”) has since informed the Corps of its objection to the use of
NWPs in certain estuarine areas lying within a tide elevation range of 5.6 feet
above mean tide level and below. R2-44 at Exh. G. The Corps counters that RC
30 was the original basis for the lawsuit and that because RC 30 has been
eliminated, the case is moot. We agree with the Corps and conclude that the
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district court did not err in granting its motion to dismiss.
We addressed the issue of mootness in Dupree v. Palmer, 284 F.3d 1234,
1236-37 (11th Cir. 2002) (per curiam). In Dupree, we reiterated our holding “that
the case or controversy requirement of the Constitution requires that moot cases be
dismissed; in a moot case, there is no longer the vitality and interest among the
parties that our adversary system of justice requires.” Id. (quotation marks and
citation omitted). We also underscored the Supreme Court’s admonition that the
“burden of demonstrating mootness is a heavy one.” Id. at 1237 (quoting County
of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383 (1979).
Nevertheless, as the district court correctly noted, jurisdiction may abate and an
action may become moot when “(1) it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects of the alleged
violation.” Id. (alterations omitted).
In this case, the Appellants charged the Corps with issuing NWPs in
contravention of RC 30. The Appellants argue that the Corps’ decision to
authorize development of the wetlands at issue was arbitrary and capricious in light
of RC 30’s prohibition of the use of NWPs in tidal waters. We agree with the
district court’s determination that “even if [the Appellants] could establish that the
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Corps’ decision was arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law . . . based upon the existence of tidal waters,” the Corps
need only reissue another certificate under the current NWP 18 which is free of RC
30’s constraints. R2-54 at 6-7. The Appellant’ reliance on CRD’s notice of
objection is unavailing. Georgia is not a party to these proceedings and its 7 May
2007 letter to the Corps postdates the original complaint by over eight months.
Whereas CRD’s objections may form the basis for a separate controversy, they do
not form a basis for this one.3
III. CONCLUSION
The Appellants appeal the district court’s denial of their motion to
supplement the administrative record and court’s grant of the Corps’ motion to
dismiss. Because we agree with the district court and conclude that the elimination
of RC 30 renders the case moot, we do not have jurisdiction to review the denial of
the motion to supplement the administrative record. Accordingly, we AFFIRM.
AFFIRMED.
3
Given our present determination, we do not reach the Appellant’s arguments against the
application of the doctrine of prudential mootness.
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