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Club v. Antwerp

June 11, 2008



Now before the Court comes federal defendants' motions [41] for voluntary remand and stay of the litigation, and [42] for extension or stay of briefing schedule and request for expedited consideration. Intervenors Sierra Properties I, LLC, Pasco 54, LTD, Pasco Ranch, Inc., and JG Cypress Creek LLC ("Intervenors") have filed responses in support of federal defendants' motions. Upon consideration of the parties' filings, applicable law, and the facts of this case, the Court finds that the motion for voluntary remand and stay will be GRANTED. Accordingly this case will be stayed pending the Army Corps of Engineers' ("Corps") final decision on remand. The motion for extension or stay of briefing schedule will be DENIED as moot.


Intervenors are developers of Cypress Creek Town Center ("CCTC"), a regional shopping mall with supporting commercial establishments, including retail businesses, hotels, restaurants, cinemas, and multi-family residential housing. The development is located on approximately 507 acres of undeveloped land in Pasco County, Florida. (See Compl. ¶¶ 56--58.) In May 2005, Sierra Properties applied for a Clean Water Act ("CWA") permit pursuant to CWA section 404. (See Intervenors' Mem. [8-4] at 3.) On October 31, 2005, the Corps issued a public notice regarding CCTC's proposed filling of approximately 54 acres of wetlands and 10 acres of surface waters with 270,418 cubic yards of fill material. (See Compl. ¶ 82.) At that time, a public comment period began wherein extensive comments were made regarding the environmental impact of the CCTC development. (See id. ¶¶ 84--87.) Following the comment period, on May 15, 2007, the Corps issued an Environmental Assessment finding that CCTC would not cause unacceptable environmental impacts and issued the requested section 404 permit allowing development of CCTC to proceed. (See id. ¶ 88; Environmental Assessment, Ex. A to Intervenors' Mem. [8-4].)

On October 1, 2007, plaintiffs filed suit in this Court against federal defendants alleging improper issuance of the CWA section 404 permit and an improper concurrence letter issued by the United States Fish and Wildlife Service ("FWS") stating that CCTC would not adversely impact four endangered species, the Wood Stork, the Florida Scrub Jay, the Eastern Indigo Snake, and the Manatee. (See Compl. ¶¶ 1, 4.) Plaintiffs' complaint asks this court to find that the section 404 permit was issued in violation of the Endangered Species Act, the CWA, the National Environmental Policy Act ("NEPA"), the Administrative Procedure Act, and their accompanying regulations. (See id. ¶ 131.) Thus, plaintiffs request that the Corps' permit and the FWS concurrence letter be remanded to accurately assess impacts to threatened species and to compel compliance with CWA requirements for avoidance and minimization of impacts to wetlands and waters. (See id. ¶5.)

On January 16, 2008, plaintiffs filed a motion [32] for summary judgment. On February 5, 2008, before opposition briefs to this motion were due, federal defendants filed a notice [40] with the Court indicating that the Corps had suspended Sierra Properties' section 404 permit effective February 1, 2008. The Corps suspended the permit because the project had discharged turbid water into Cypress Creek. (See Notice of Permit Suspension, Ex. A to Notice [40] at 2.) During suspension, work "in any areas of the [CCTC] site that have been identified as waters of the United States" is prohibited unless authorized for remediation. (See id. at 3.) Further, the Corps indicated that it required initial corrective action to ensure that additional offsite discharges would not occur and stated that following the suspension, the Corps would decide whether to reinstate, modify, or revoke the permit. (See id. at 3--4; Hurst Decl., Ex. B to Mot. for Remand ¶¶ 3--4.)

On February 13, 2008, federal defendants filed their motion for voluntary remand and stay pending final Corps action on the remanded permit. According to the Corps, the intervening events that led to the permit's suspension and new evidence gained from subsequent investigation and review of the permit decision may render some or all of plaintiffs' claims moot.

Federal defendants filed a notice [52] with the Court on May 16, 2008, indicating that the Corps had authorized additional corrective measures to protect Cypress Creek and associated wetlands from potential discharges of turbid water. (See Approval Ltr., (May 16, 2008), Ex. B to Notice [52] at 2.) The Corps emphasized that its corrective measures did not alter the fact that it was still considering reinstatement, modification, or revocation of the suspended permit. (See id.) Plaintiffs, claiming that a remand and stay will prejudice environmental interests and only cause delay, oppose defendants' motion.


A. Applicable Law

1. Agency Power to Reconsider Own Actions

It is undisputed "that administrative agencies have inherent power to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider." Prieto v. United States, 655 F. Supp. 1187, 1191 (D.D.C. 1987) (citing Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980)); see also Anchor Line Ltd. v. Fed. Mar. Comm'n, 299 F.2d 124, 125 (D.C. Cir. 1962) (stating that an agency wishing to reconsider its action, should move the court to remand or hold the case in abeyance pending the agency's reconsideration). Accordingly, courts in this Circuit commonly grant motions to remand an administrative record to allow an agency to consider new evidence that became available after the agency's original decision. See, e.g., Ethyl Corp. v. Browner, 989 F.2d 522, 523--24 & n.3 (D.C. Cir. 1993). In making such decisions, the Circuit prefers "to allow agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete." Id. at 524 (citing Lamprecht v. FCC, 958 F.2d 382, 385 (D.C. Cir. 1992)). In the case where an intervening event may affect the validity of the agency action at issue, a remand is generally required. See SKF USA Inc. v. United States, 254 F.3d 1022, 1028--29 (Fed. Cir. 2001) (citing Ethyl, 989 F.2d at 524); see also Citizens Against the Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416 (6th Cir. 2004) (noting that it can be "an abuse of discretion to prevent an agency from acting to cure the very legal defects asserted by plaintiffs challenging federal action"). Even in the absence of intervening events, upon an agency's remand request, the reviewing court still has discretion over whether to remand. See, e.g., id. at 417 (citing SKF USA, 254 F.3d at 1029). In that situation, as long as the agency's concern is substantial and legitimate, a remand is usually appropriate. See id.; but cf. Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir. 1998) (indicating that an agency's remand request may be refused if the request is frivolous or in bad faith).

2. Scope of Judicial Review

In an administrative review case pursuant to the APA, "review is limited to the administrative record, which 'includes all materials compiled by the agency that were before the agency at the time the decision was made.'" Piersall v. Winter, 507 F. Supp. 2d 23, 34 (D.D.C. 2007) (Lamberth, J.) (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)). Furthermore, [i]f the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.

Nat'l Treasury Employees Union v. Horner, 854 F.2d 490, 500 (D.C. Cir. 1988) (quoting Fla. Power & Light Co. v. ...

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