Sierra Club v. United States Army Corps of Engineers , 277 F. App'x 170 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-14-2008
Sierra Club v. US Army Corps of Eng
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4887
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Sierra Club v. US Army Corps of Eng" (2008). 2008 Decisions. Paper 1226.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1226
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-4887
_____________
SIERRA CLUB, NEW JERSEY PUBLIC INTEREST RESEARCH
GROUP CITIZENS LOBBY, INC., and NEW JERSEY ENVIRONMENTAL
FEDERATION,
Appellants
v.
UNITED STATES ARMY CORPS OF ENGINEERS, COLONEL RICHARD J. POLO,
JR., and MEADOWLAND MILLS/MACK-CALI LIMITED PARTNERSHIP
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 05-cv-01724)
District Judge: Honorable Joel A. Pisano
Argued March 26, 2008
Before: McKEE, RENDELL and TASHIMA * , Circuit Judges
(Filed: May 14, 2008)
Edward Lloyd, Esq. (Argued)
Columbia University School of Law
435 West 116 th Street
New York, NY 10027-0000
*
Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
Attorney for Plaintiff-Appellant
Michael T Gray, Esq. (Argued)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L’Enfant Plaza Station
Washington, D.C. 20026
Virginia S. Albrecht, Esq.
David J. DePippo, Esq.
David C. Lashway, Esq.
Eric J. Murdock, Esq. (Argued)
Hunton & Williams
1900 K Street, N.W.
Suite 1200
Washington, D.C. 20006
Benjamin Clarke, Esq.
Michael R. Cole, Esq.
DeCotiis, Fitzpatrick Cole & Wisler
500 Frank W. Burr Boulevard
Glenpointe Centre West
Taneck, NJ 07666
Attorneys for Defendant Appellee
OPINION OF THE COURT
TASHIMA, Senior Circuit Judge.
At the heart of this case lie 7.69 acres of wetlands once located in the
Meadowlands Sports Complex (“MSC”), a 684-acre property located in the Hackensack
2
Meadowlands of East Rutherford, New Jersey. On March 18, 2005, Defendant-Appellee
United States Army Corps of Engineers (“Corps”) granted Defendant-Appellee
Meadowland Mills/Mack-Cali Limited Partnership 1 (“Partnership”) a permit to fill the
wetlands pursuant to Section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344.
Plaintiffs Sierra Club, New Jersey Public Interest Group Citizens Lobby, Inc., and New
Jersey Environmental Federation brought suit challenging the legality of the permit,
contending violations of the CWA, 33 U.S.C. §§ 1251-1387; the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 500-596; the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321-4375; the Rivers and Harbors Act, 33 U.S.C. §§ 401-467n;
and implementing regulations. The District Court granted summary judgment in favor of
Defendants on all claims. See Sierra Club v. U.S. Army Corps of Eng’rs, 450 F. Supp. 2d
503 (D.N.J. 2006). Because all but 0.12 acres of the 7.69 acres of wetlands have been
filled and construction on top of the former wetlands is substantially complete, we can no
longer provide Plaintiffs with any meaningful relief. Accordingly, we vacate the district
court’s opinion and remand with instructions to dismiss the action as moot.
Because we write for the parties, we include only those facts necessary for the
disposition of this case. The Partnership won a bid to construct the Meadowlands
Xanadu Redevelopment Project as part of a state-run plan to redevelop the Continental
1
On November 22, 2006, the Meadowlands Mills/Mack-Cali Limited Partnership
changed its name to the Meadowlands Developer Limited Partnership. For sake of
simplicity, we refer to Defendant-Appellee as “Partnership” throughout.
3
Airlines Arena Site (“Arena Site”) at the MSC. Because the 104-acre redevelopment site
contained 7.69 acres of wetlands, the Partnership applied to the Corps for a fill permit
pursuant to § 404 of the CWA. The Corps issued the permit on March 18, 2005, and
Plaintiffs filed their complaint on March 30, 2005. Plaintiffs contended that the Corps
issued the permit in violation of the CWA, the APA, NEPA, and the Rivers and Harbors
Act, and alleged recreational and aesthetic injuries that would result from the loss of the
wetlands. In May 2005, Plaintiffs filed a motion for preliminary injunction, which was
denied on July 7, 2005. The district court granted summary judgment in favor of the
Defendants on all claims on September 28, 2006. Plaintiffs timely appealed.2
Construction commenced in March 2005. By January 2006, 6.97 acres of wetlands
had been filled, and between August 2007 and October 2007, four more small wetlands
were filled, for a total of 7.57 acres filled. Today, two small patches of wetlands remain:
a 0.09 acre and 0.03 acre patch, each bordering and on opposite sides of the New Jersey
Turnpike.
The question before us is whether the substantial filling of the wetlands – 7.57 out
of 7.69 acres – has rendered Plaintiffs’ claims moot. There exist two categories of
mootness: Article III mootness and prudential mootness. Ali v. Cangemi, 419 F.3d 722,
723 (8th Cir. 2005) (en banc); see also Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912,
2
Plaintiffs do not appeal the grant of summary judgment on their Rivers and Harbors
Act claim.
4
915 (3d Cir. 1987) (“In addition to its threshold constitutional dimension, mootness
doctrine incorporates prudential considerations as well.”). Our jurisdiction is limited by
Article III of the Constitution, which ties our judicial authority to the existence of a “case
or controversy.” Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007) (citing Int’l Bhd.
of Boilermakers, 815 F.2d at 914). If a case becomes moot in the Article III sense, we do
not have jurisdiction. Id. at 241. Under the prudential mootness doctrine, however, we
may decline to exercise our discretion to grant declaratory and injunctive relief if the
controversy is “so attenuated that considerations of prudence and comity for coordinate
branches of government counsel the court to stay its hand, and to withhold relief it has the
power to grant.” Chamber of Commerce v. U.S. Dep’t of Energy, 627 F.2d 289, 291
(D.C. Cir. 1980) (cited with approval in Int’l Bhd. of Boilermakers, 815 F.2d at 915); see
also Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 700 (3d Cir. 1996) (“ ‘The
discretionary power to withhold injunctive and declaratory relief for prudential reasons,
even in a case not constitutionally moot, is well established.’ ”) (quoting S-1 v. Spangler,
832 F.2d 294, 297 (4th Cir. 1987)).
The central question in a prudential mootness analysis is “ ‘whether changes in
circumstances that prevailed at the beginning of the litigation have forestalled any
occasion for meaningful relief.’ ” Int’l Bhd. of Boilermakers, 815 F.2d at 915 (quoting
Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985)).
Plaintiffs’ alleged injuries are harms to their recreational and aesthetic interests that
5
would result from filling the 7.69 acres of wetlands in the Arena site. Because Plaintiffs
used the wetlands for “hiking, bird watching, nature study, and wildlife appreciation,”
they alleged that they would be harmed by any unlawful fill of those wetlands. However,
the wetlands Plaintiffs enjoyed at the beginning of this litigation are now gone and cannot
be restored. Plaintiffs do not ask that the existing structures be removed, and redressing
Plaintiffs’ alleged procedural harms under the CWA, NEPA, and the APA would not
conceivably restore any wetlands on the Arena site.3 Because the substantially complete
fill forecloses the opportunity for any meaningful relief to Plaintiffs’ alleged injuries, we
hold that this case is prudentially moot.
We reach this result notwithstanding the fact that 0.12 acres of wetlands remain
unfilled. A ruling in Plaintiffs’ favor could theoretically protect those wetlands, and thus
preserves the Article III requirement for a case or controversy. However, the remaining
wetlands are split into two even smaller parcels: a .09 acre parcel and a .03 acre parcel.
These wetlands are adjacent to and separated by the New Jersey Turnpike. Preserving
small parcels of wetlands, separated and bordered by a major thoroughfare, would not
provide any meaningful relief to Plaintiffs’ alleged recreational and aesthetic injuries. In
the absence of any possibility for meaningful relief, we are free to hold that the case is
3
Additional off-site mitigation would not redress Plaintiffs’ injuries either. The fill
permit provided for the preservation and enhancement of over 600-acres of wetlands to
mitigate the loss of the 7.69 acres to be filled. Plaintiffs did not claim in their complaint
that further mitigation was necessary; rather they asked that the 7.69 acres on the Arena
site be preserved.
6
prudentially moot.
Accordingly, we will vacate the opinion and judgment of the district court and
remand the case with instructions that the district court dismiss the case as moot.
RENDELL, Circuit Judge, concurring.
While I agree that there is no meaningful relief that we can afford plaintiffs based
on the development of the parcel at issue, I write separately to note an area of confusion
that we would have encountered regarding the scope of analysis under NEPA, had we
reached the merits. The regulations at issue require an assessment of the environmental
impact of the specific activity for which a permit is required – here, that would mean the
filling of the wetlands. 33 C.F.R. Part 325, App. B, 7.b(1) (“The district engineer should
establish the scope of the NEPA document (e.g., the EA or EIS) to address the impacts of
the specific activity requiring a DA permit . . . .”). However, the examples set forth
thereafter speak in terms of the impact of what is constructed on the area in question –
here, that would require assessing the impact of the structure to be built and the activities
to be conducted. 33 C.F.R. Part 325, App. B, 7.b(3) (“[I]f an applicant seeks a DA
permit to fill waters or wetlands on which other construction or work is proposed, the
control and responsibility of the Corps, as well as its overall Federal involvement would
extend to the portions of the project to be located on the permitted fill.”).
The two assessments are vastly different. There are various sections of the
regulations that would seem to favor each interpretation. Several courts have had to
7
grapple with the language of the regulation, and most have relied on the example to
support the more comprehensive assessment that the appellants urge but was not
performed here. See Ohio Valley Env. Coalition v. U.S. Army Corps of Eng’rs, 479 F.
Supp. 2d 607, 655 (S.D. W. Va. 2007) (“if that part of the project which is located on the
fill may be excluded, these regulations are rendered meaningless. The Corps would
never have to consider more than the filled portion of the stream. This result would be
contrary to the clear statement in the second paragraph of § 7(b)(3) . . . .”); Stewart v.
Potts, 996 F. Supp. 668, 682 (S.D. Tex. 1998) (concluding that the Corps acted
irrationally by excluding the forest located on the wetlands from its NEPA review). A
clarification of the regulation itself would be helpful to the courts, and, presumably, the
agency.
I also write to note that, although we conclude that the case is moot, this
conclusion is dictated by the specific circumstances presented here. In the present case,
the Partnership has already engaged in mitigation of over-600 acres of wetlands and
filled all but .12 acres of contaminated and dispersed wetlands. Edifices have been
constructed on top of almost all of the fill, rendering remediation of the filled wetlands
impossible. At this point in the process, there simply is no possible remedy for
appellants.
This situation is not of plaintiffs’ creation, for they moved swiftly. However, the
8
developer moved with lightning speed to accomplish the fill.4 We need to recognize the
danger inherent in this fact pattern where, following the issuance of an Army Corps of
Engineers permit, the developer will rush to fill the wetlands and commence
construction, disrupting the wetlands, mooting the controversy, and rendering any
judicial relief impractical if not impossible. In meritorious cases, this haste to fill the
wetlands nullifies the very essence of the statutes and regulations designed to protect our
environment.
Litigants and districts courts alike should be mindful of this risk. Where there is
potential for harm, a temporary restraining order or a stay pending a decision on a motion
for a preliminary injunction may be appropriate. Ideally, the regulations or implementing
statute would be amended to provide for some limited period of time between issuance of
the permit and the start of construction in order to facilitate judicial review and preserve
meaningful remedies, in the interest of all concerned.
4
The Corps issued a permit on March 18, 2005; Sierra Club filed its compliant on
March 30th and moved for a preliminary injunction on May 5th. By May 25th, 5.44 acres
of wetlands had been filled. The District Court denied the preliminary injunction on July
7, 2005.
9