Louisiana Crawfish Producers Association - West v. Mallard Basin Inc
6:10-cv-01085
W.D. La.Jan 10, 2019Background
- Plaintiffs (LCPAW, Atchafalaya Basinkeeper, LEAN) sued Mallard Basin/WBI and the U.S. Army Corps of Engineers (COE) after COE issued after‑the‑fact permits (2010 NWP verification; 2010 Individual Permit), later reevaluated and affirmed (2013), and a 2014 permit modification.
- COE began enforcement in 2010 after an anonymous complaint and issued a cease‑and‑desist; defendants applied for permits and performed remediation while under threat of COE enforcement.
- Plaintiffs challenged COE decisions under NEPA, the CWA, and the APA (claims re: alternatives, ecological impacts including to crawfish and bald cypress, and alleged procedural defects); ESA claims were dismissed as moot earlier.
- The court resolved disputes over the administrative record: it admitted certain agency documents, allowed deposition testimony of COE project manager Michael Herrmann under the NEPA extra‑record exception, and excluded post‑decisional expert reports and declarations for merits review of CWA claims.
- On cross‑motions for summary judgment, the court held COE’s permitting decisions were not arbitrary or capricious under APA review (CWA and NEPA claims failed) and found the lead citizen‑suit claims against Mallard Basin/WBI moot; all claims were dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of review / extra‑record evidence | Kemp report, expert and observer declarations show COE failed to consider impacts/alternatives; should be admitted under NEPA exception | COE: extra‑record material is post‑decisional/cumulative and inadmissible; only record at decision controls | Court admitted Herrmann depositions for NEPA procedural review but excluded post‑decisional expert reports and declarations for CWA merits; limited extra‑record review under NEPA exception |
| CWA: adequacy of alternatives and project purpose | COE improperly defined purpose as Fisher Bottoms‑specific and failed to rebut presumption that non‑wetland alternatives exist | COE: project purpose legitimately reflects applicant's goals; considered alternatives and reasonably found no practicable non‑wetland alternatives | Court: COE did not act arbitrarily or capriciously; alternatives analysis met minimal rationality standards under CWA |
| NEPA: consideration of alternatives and ecological impacts (crawfish, fish, cypress) | COE gave cursory consideration, ignored reasonable alternatives (e.g., smaller wooden weir), and failed to take a "hard look" at impacts on aquatic life and crawfishing | COE: considered comments, site visits, and concluded impacts minimal; range of alternatives required is reduced when impacts are modest | Court: NEPA is procedural; record (plus Herrmann depositions) shows COE considered relevant factors and did not act arbitrarily or capriciously |
| Mootness of citizen suit; civil penalties and attorneys' fees | Permits do not moot suit; penalties and fees still viable because violations occurred and plaintiff spurred compliance | Mallard Basin/WBI: enforcement and after‑the‑fact permits render injunctive and penalty claims moot; compliance was involuntary (COE enforcement) so suits are mooted; fees not recoverable absent prevailing party status | Court: injunctive/declaratory and penalty claims are moot given COE enforcement/permitting and no realistic prospect of recurrence; plaintiffs are not prevailing parties for fee award |
Key Cases Cited
- Camp v. Pitts, 411 U.S. 138 (1973) (judicial review of agency action focuses on the administrative record)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires a procedural "hard look," not a particular substantive outcome)
- Medina Cnty. Environmental Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010) (standards for admitting extra‑record evidence; exceptions to record rule)
- Sierra Club v. Hassell, 636 F.2d 1095 (5th Cir. 1981) (NEPA may justify extra‑record evidence to review procedural integrity)
- Little Traverse Lake Property Owners Ass'n v. Nat'l Park Serv., 883 F.3d 644 (6th Cir. 2018) (extra‑record evidence admissible only when administrative record is so inadequate that review is frustrated)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987) (CWA citizen suits are forward‑looking; courts lack jurisdiction for wholly past violations)
- Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) (standing/mootness principles in environmental enforcement suits)
- Envtl. Conserv. Org. v. City of Dallas, 529 F.3d 519 (5th Cir. 2008) (agency enforcement can moot citizen suits; distinguishes voluntary vs. involuntary compliance)
- City of Shoreacres v. Waterworth, 420 F.3d 440 (5th Cir. 2005) (courts must accord substantial weight to Corps' interpretation of its permitting authority)
- Delta Foundation v. United States, 303 F.3d 551 (5th Cir. 2002) (arbitrary and capricious standard: court reviews whether agency considered relevant factors)