United States District Court, District of Columbia
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 Román Más 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 Román Más 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 Román Más”) 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 Román Más 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, 2014, the Court ordered supplemental briefing on whether the progress of Phase 1A rendered the case moot. The Court held a hearing on that question on October 15, 2014.
II. Standard of Review
The party raising the issue bears the burden of establishing mootness, “and it is a heavy burden.” Fund For Animals v. Williams, 311 F.Supp.2d 1, 6 (D.D.C. 2004) aff’d sub nom. Fund For Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005). Article III limits federal courts to resolving actual cases or controversies; it “prevents their passing on moot questions-ones where intervening events make it impossible to grant the prevailing party effective relief.” Burlington N. R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996) (citing Church of Scientology v. United States, 506 U.S. 9, 11 (1992)). For a federal court to adjudicate a case, “‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (citations omitted). The doctrine of prudential mootness refers to the discretion enjoyed by federal courts in exercising their Article III powers. Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991). The doctrine “permits the court in its discretion to ‘stay its hand, and to withhold relief it has the power to grant’ by dismissing the claim for lack of subject matter jurisdiction.” MBIA Ins. Corp. v. F.D.I.C., 708 F.3d 234, 245 (D.C. Cir. 2013) (quoting Chamber of Commerce v. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980)). A court may declare a case prudentially moot when “[t]he precise conduct that prompted th[e] suit . . . has come to an end” and the plaintiff will have “ample opportunity . . . to renew their complaint.” Chamber of Commerce, 627 F.2d at 292.
There is no dispute that the central question in this lawsuit is whether the Corps satisfied its NEPA and CWA obligations in deciding to proceed with Phase 1A of the project after receiving funding under ARRA. See Finca and Román Más’s Mot. for Summ. J. at 9 (describing the “ARRA project” as “the subject of this litigation”). Because Phase 1A of the project is now essentially complete, however, the Court cannot provide effective relief regarding the subject of this litigation. The Court therefore concludes that the case is prudentially moot.
A. Injunctive Relief
Finca and Román Más argue that “[e]ven if . . . Plaintiffs choose not to seek an injunction requiring the Corps to undo or modify the ARRA project, the mere fact that this injunctive relief remains available defeats a claim of mootness.” Pls.’ Response to Defs.’ Supplemental Mem. at 6– 7. Yet, Finca and Román Más do not actually seek such an injunction. As their counsel acknowledged at the hearing: “We’re not seeking [deconstruction of the project.]” Hr’g Tr. 12: 11–12, Oct. 15, 2014. Instead, they argue that the mere existence of hypothetical relief should defeat the Government’s mootness argument. As the Fifth Circuit has found, however, “theoretically” available relief sufficient to defeat mootness does not include “imagined possibilities beyond those requested in the complaint, but rather” involves “giv[ing] the plaintiff the benefit of the doubt as to whether certain requested relief would in fact ease or correct the alleged wrong.” Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 397 (5th Cir. 2000) (emphasis added). The Court finds that hypothetical relief the plaintiffs did not actually request in their complaint cannot overcome the mootness arguments presented here.
Even if Finca and Román Más had requested that the Court order the Government to dismantle or reverse the project, the Government correctly identifies a long line of cases in the courts of appeal holding environmental challenges to completed construction projects to be moot. See Weiss v. Sec’y of Dep’t of Interior, 459 F. App’x 497, 500–501 (6th Cir. 2012) (holding NEPA and NHPA claims moot because construction had been completed); Sierra Club v. U.S. Army Corps of Eng’rs, 277 F. App’x 170, 172 (3rd Cir. 2008) (dismissing NEPA complaint as prudentially moot because wetlands had already been substantially filled); One Thousand Friends of Iowa v. Mineta, 364 F.3d 890, 893 (8th Cir. 2004) (“A NEPA claim does not present a controversy when the proposed action has been completed and no effective relief is available. . . . [Both injunctive and declaratory relief are] similarly mooted by the completion of the construction project.”); Bayou Liberty, 217 F.3d at 396 (“When a party seeks an injunction to halt a construction project the case may become moot when a substantial portion of that project is completed”); Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998) (rejecting appeal of denial of injunction in NEPA case because completion of construction rendered case moot). While the D.C. Circuit does not appear to have addressed the precise question of the mootness of a NEPA claim involving a completed construction ...