176 F. Supp. 3d 839
D. Minnesota2016Background
- The Corps led a multi-year feasibility study of flood-risk reduction for the Fargo–Moorhead area, considering multiple diversion alignments in Minnesota and North Dakota and various capacities.
- The Corps initially identified a Minnesota diversion as the NED (national economic development) plan but ultimately recommended the North Dakota diversion as the LPP (locally preferred plan); Assistant Secretary Darcy granted an LPP exception in 2010.
- The Corps prepared a Draft, Supplemental, and Final EIS comparing the NED plan and the LPP, explicitly noting the NED plan better protected floodplain function while the LPP reduced flood risk over a larger area and addressed additional tributaries.
- JPA sued, alleging NEPA and other violations; it later narrowed federal claims to NEPA counts (I and II) against the Corps and also named the Diversion Authority as an intervenor-defendant.
- The district court previously enjoined construction of one levee segment under pending Minnesota-law claims; here the court addressed only the NEPA claims on cross-motions for summary judgment.
- The court found the Corps adequately considered the Minnesota alternative and responded to state comments; it granted summary judgment for the Corps and Diversion Authority on the NEPA counts and dismissed those counts with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps violated NEPA by failing to study or give effect to the Minnesota (NED) alternative | JPA: Corps ignored/marginalized the NED plan and its superior floodplain-protection effects, violating NEPA’s alternatives requirement | Corps: Extensive study of alternatives and direct comparison between NED and LPP in the EIS satisfied NEPA; agency discretion governs weighting of factors | Held: Corps met NEPA’s procedural requirements; no arbitrary or capricious decision — summary judgment for Corps |
| Whether alleged violations of Executive Order 11988 supply a NEPA claim or are judicially reviewable | JPA: EO 11988 violations support NEPA claim and warrant review | Defendants: EO 11988 is not judicially enforceable; EO does not create private rights and was amended to state it creates no enforceable rights | Held: Court cannot review EO 11988 as binding legal standard; treated issues under NEPA instead |
| Whether Corps inadequately responded to Minnesota’s comments and unresolved conflicts | JPA: Corps failed to respond sufficiently to state comments and reconcile inconsistencies with state plans | Corps: Administrative record shows responses to numerous state comments; NEPA does not require exhaustive responses to every comment | Held: Corps adequately addressed state comments; no NEPA violation |
| Whether the JPA’s FONSI/supplemental EIS challenge (Count II) survives summary judgment | JPA: (not effectively briefed) | Corps: JPA abandoned Count II in briefing; even on merits, changes and mitigation did not trigger requirement for supplemental EIS | Held: Court treats Count II as abandoned and, alternatively, finds no basis to require a supplemental EIS — summary judgment for Corps |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (failure to prove essential element at summary judgment)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (view facts in light most favorable to nonmoving party)
- Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (NEPA is essentially procedural; courts review procedures)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (NEPA’s informational and procedural purposes)
- Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969 (8th Cir.) (NEPA and APA review principles)
- Sierra Club v. Kimbell, 623 F.3d 549 (8th Cir.) (arbitrary and capricious standard under APA)
- Ark. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096 (8th Cir.) (deference to Corps’ judgment on comment responses)
- In re Surface Mining Regulation Litig., 627 F.2d 1346 (D.C. Cir.) (executive orders generally not judicially enforceable)
- Meyer v. Bush, 981 F.2d 1288 (D.C. Cir.) (executive orders that are managerial and not creating private rights not subject to judicial enforcement)
- Indep. Meat Packers Ass’n v. Butz, 526 F.2d 228 (8th Cir.) (executive order enforceability factors)
- City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir.) (discussion of E.O. 11988 in NEPA context)