United States District Court, D. Columbia.
For FINCA SANTA ELENA, INC., ROMAN-MAS FOUNDATION, ANGEL ROMAN-MAS, Plaintiffs: Scott M. Heimberg, Thomas P. McLish, LEAD ATTORNEYS, AKIN, GUMP, STRAUSS, HAUER & FELD, LLP, Washington, DC; Troy D. Cahill, AKIN, GUMP, STRAUSS, HAUER & FELD, Washington, DC.
For UNITED STATES ARMY CORPS OF ENGINEERS, ROBERT L. VAN ANTWERP, Lt. Gen., Defendants: Peter Kryn Dykema, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Michele L. Walter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
Plaintiffs in this case own property and conduct environmental research and conservation activities along the Rio de la Plata in northern Puerto Rico. For decades, the Army Corps of Engineers has been studying, planning, and partially constructing a flood control project to protect residential areas within the river's floodplain. Fearing that the project will diminish their use and enjoyment of the area, as well as their property values, plaintiffs filed suit to enjoin further construction. They also seek a declaration that the Corps and its Chief of Engineers violated the Clean Water Act (" CWA" ), the National Environmental Policy Act (" NEPA" ), the National Historic Preservation Act (" NHPA" ), and the Administrative Procedure Act (" APA" ), as well as an order invalidating the approvals and statutory findings associated with the project. The Court previously granted the Government's partial motion to dismiss all claims challenging any part of the project other than its most downstream portion (" Phase 1A" )--the only phase of the project that has ever received Congressional appropriations. Both sides now move for summary judgment. Because the Corps has completed virtually all construction on Phase 1A and has represented that it will conduct further administrative and environmental reviews before any work on future phases of the project takes place, the Court will deny both motions and dismiss this case as prudentially moot.
A. Factual Background
The Corps has been studying, designing, and planning the Rio de la Plata flood control project since 1942. Defs.' Mot. to Dismiss at 13. Yet, the only construction funding the project has ever received is a one-time congressional appropriation for its most downstream portion, Phase 1A, as part of the American Recovery and Reinvestment Act (" ARRA" ) of 2009. First Am. Compl. ¶ 148. According to the uncontested declaration of Gregory Schulz, Chief of the Construction Division for the Corps' office that oversees Puerto Rico, Phase 1A was approximately 85 percent complete as of August 2014, with " all major Project features for flood control purposes" on schedule for completion by October 2014 and all remaining work by January 2015. Defs.' Supplemental Mem. in Supp. of Defs.' Cross-Mot. for Summ. J., Decl. of Gregory Schulz ¶ ¶ 6-7. Plaintiff Finca Santa Elena, Inc. is a Puerto Rico corporation that owns property located within the project's footprint, including an 18th century sugar mill that is listed on the National Register of Historic Places. First Am. Compl. ¶ ¶ 10-13. Plaintiff Romá n Má s Foundation is a non-profit organization dedicated to preserving and protecting Puerto Rico's natural and cultural resources, including its rivers and wetlands. Id. at 18-19. Plaintiff Angel Romá n Má s resides in Puerto Rico and claims to visit the Rio de la Plata approximately once or twice a month for recreation and study.
Id. at 28-30. Plaintiffs (" Finca and Romá n Má s" ) have not disputed sworn statements by the Corps that it will conduct additional administrative and environmental reviews before beginning any additional phases of the project, just as the Corps has done " on many occasions over the years before Phase 1A even began construction." Mem. Op. July 9, 2012 at 10. And counsel for the Corps represented to the Court at the most recent hearing that " nothing further will happen without" additional assessments of environmental law and historic preservation compliance. Hr'g Tr. 23: 6-20, Oct. 15, 2014. These assessments will include, according to counsel, " another [Environmental Assessment] and [Finding of No Significant Impact] at a minimum" as " [t]hat's the way the Corps has handled it before and repeatedly." Id.
B. Procedural Posture
Finca and Romá n Má s filed their initial complaint in February 2011. They amended the complaint in June 2011. A year later, Judge Wilkins, who previously oversaw the case, granted the Government's partial motion to dismiss all claims challenging any portion of the project beyond Phase 1A. The parties' cross-motions for summary judgment became ripe in May 2013. After the case was reassigned to this Court in April 2014, the Court requested a report on the " status of the 'Phase 1A'/'ARRA' flood control project and the impact, if any, of the project's current status on the Plaintiffs' requested relief." After receiving the status report and holding a status conference on August 6, ...