United States District Court, D. Columbia
August 8, 2005.
NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs,
LES BROWNLEE, Acting Secretary, U.S. Department of the Army, Defendant and Agripartners, G.P. Intervenor Defendant.
The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Plaintiffs challenge the issuance of four nationwide permits
(NWPs) by the Army Corps of Engineers. On March 31, 2005, I
granted summary judgment to plaintiffs on their Endangered
Species Act claim and denied without prejudice cross-motions for
summary judgment on plaintiffs' National Environmental Policy Act
and Clean Water Act claims, explaining the NEPA and CWA rulings
by noting that the challenged NEPA and CWA findings were "closely
intertwined with the Corps' [ESA] Section 7 compliance."*fn1
Following that decision, the Corps informally consulted with the
Fish and Wildlife Service, as I had found it was required to do. FWS concurred with the Corps that
issuing the challenged NWPs "may affect, but is not likely to
adversely affect, the Florida panther." Fed. Def.'s Mot.
Voluntary Remand Ex. 2. That consultation and concurrence would
appear to resolve plaintiffs' ESA claim, but, instead of ending
the litigation, my earlier ruling spawned a number of follow-up
motions. They are resolved as set forth below.
Intervenor Defendant Agripartners' Motion to Alter or Amend
Intervenor Defendant Agripartners, G.P. has moved for
reconsideration of my ruling that plaintiffs' claims are not
barred by the doctrine of res judicata. That issue was fully
briefed previously, and nothing has changed since my earlier
ruling. The motion will be denied.
Intervenor Defendant Agripartners' Motion to Dismiss
Plaintiffs' Claims for Relief as Moot
Agripartners has also moved that all of plaintiffs' claims for
relief be dismissed as moot. The motion appears to be premised on
a misunderstanding of my ruling of March 31, 2005. I did not rule
that the Corps' compliance with the ESA would moot the NEPA and
CWA claims, but merely that it made sense to put off the NEPA and
CWA inquiries until ESA compliance was addressed. The FWS "not
likely to adversely affect" finding strengthens the Corps' case
on NEPA and the CWA but does not end the matter; each statute has
its own set of legal inquiries. I have not ruled on the merits of plaintiffs' NEPA and CWA claims, and Agripartners'
motion will accordingly be denied.
Federal defendant's motion for voluntary remand or in the
alternative to stay
The Corps of Engineers has requested a voluntary remand in
order that it may reconsider its CWA and NEPA findings in light
of its recently concluded informal ESA consultation. Substantial
disputes still exist relating to the Panther Key, the 2004
preconstruction notification requirements, and the declarations
of Andrew C. Eller, Jr. and E. Jane Comiskey, and they may be
resolved or clarified by a remand. "`[W]hen an agency seeks to
reconsider its action, it should move the court to remand or to
hold the case in abeyance pending reconsideration by the
agency.'" Ethyl Corp. v. Browner, 989 F.2d 522, 524 n. 3 (D.C.
Cir. 1993) (quoting Anchor Line Ltd. v. Fed. Mar. Comm'n,
299 F.2d 124, 125 (D.C. Cir. 1962)). The Corps has indicated that it
will provide for notice and comment on its reconsideration, Fed.
Def.'s Mot. Voluntary Remand at 5. Remand without vacatur is
appropriate, see A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484,
1492 (D.C. Cir. 1995) (citing cases of remand without vacatur). I
will not retain jurisdiction, although a renewed challenge after
remand might reasonably be considered a related case. Plaintiffs' Motion for Permanent Injunction and Agripartners'
Motion to Strike
In view of the remand order, the motion for permanent
injunction will be denied. Agripartners' motion to strike the
declarations of Andrew C. Eller, Jr. and E. Jane Comiskey that
are attached to plaintiffs' motion will be granted. As plaintiffs
appear to acknowledge, see Pls' Mot. Permanent Inj. & Other
Relief at 1, their motion "for permanent injunction and other
relief" is really (at least in part) a renewed motion for summary
judgment. The two declarations are thus not appropriate. See,
e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284
(D.C. Cir. 1981) (judicial review is limited to record before
agency at the time decision was made).
Plaintiffs' Motion to Amend and Supplement the Complaint
Plaintiffs's attempt to bring a new claim against FWS relating
to FWS's informal consultation with the Corps is overtaken by the
event of remand and will be denied.
* * *
An appropriate Order accompanies this Memorandum.
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