*4 Background I. KRAVITCH, Before DUBINA and 60,- COOGLER,* comprises Lake Belt South Florida’s District Judges, Circuit just of wetlands east of Ever- 000 acres Judge. * Alabama, sitting by designation. Coogler, L. Scott United States Honorable Judge District of District for the Northern glades EIS, National Park and northwest of Also after the the Corps received Miami. The own a metropolitan Miners regarding information the Northwest Well- portion of the Lake Belt substantial County’s field—Miami-Dade primary In wish to mine their lands. the late drinking source of water —and the Pennsu- 1990s, urging, at the Miners’ the Corps co wetlands. The information showed that investigated propriety issuing 50- the Northwest Wellfield was far more vul- 15,800 year CWA to mine acres of mining-related nerable to contamination the Lake Belt. In the Corps issued than was known at the time Impact a draft Environmental Statement approved The information (“EIS”) NEPA, pursuant to which recog- that property showed values had risen in proposed project’s negative nized the envi- area, the Pennsuco mitiga- such that the impacts. public ronmental took contemplated tion by the purchasing EIS — draft, critics, comment on the includ- public wetlands for conservation to replace ing multiple agencies, federal raised seri- destroyed Lake Belt wetlands-—was no environmental, technical, legal ous longer economically feasible. Nonetheless, concerns. issued a the Corps responded to the following year largely final EIS the follow- *5 overwhelming criticism and new informa- ing the draft In the final EIS. EIS the by limiting tion permits, issuing the a new Corps noted that environmental effects public notice suggesting 10-year permits mitigated by placing special per- could be 5,000 covering only acres. This limited mit conditions on the Miners. For exam- criticism, proposal heavy also received in- ple, suggested permit one con- condition cluding the same regarding FWS criticism templated percentage mining profits impact the on the wood Respond- stork. purchase be used to wetlands in the ing concerns, to Corps FWS’s the drafted area, adjacent “Pennsuco” to the Lake (“BA”) biological assessment concluding Belt, public conservation. that the Lake Belt mining would have no EIS, After issuing Corps the final the effect on the wood stork because the wood “public released a CWA notice” that formerly foraged storks that in the Lake planned mining permits. to issue the Part Belt area had shifted In locations. Corps the notice indicated that accepted the FWS BA Corps’s engage would not in ESA “formal consul- in Corps’s concurred “no effect” find- tation” with the U.S. Fish and Wildlife ing. (“FWS”) Service because the Corps deter- The Appellees requested issuing permits mined that would have (“SEIS”) supplemental draft a EIS to ad- any species protected by no effect on criticisms, dress the new information and public ESA. The and several federal permits. and then reevaluate the agencies heavily The public criticized the no- granted 10-year permits In instead particular, tice. the FWS refused to (“ROD”). in a final Record Corps’s concur in of Decision “no effect” determi- nation The ROD described the because FWS concluded that criticisms new information, mining might have a detrimental but in the end found that the impact on the ESA-protected mining plan wood stork. The more-limited would have no FWS requested significant therefore that formal already consulta- effects not discussed in begin tion between Corps. FWS and the the EIS.1 21,000 recognized impact 1. The EIS on the environmental resources of the significant region”; have acres "will an irreversible the ROD concluded that the ROD, II. Jurisdiction Appellees Shortly after against chal- brought this suit Putting jurisdic aside the other inter- The Miners lenging asserted, conclude that grounds we tional all parties vened, eventually over “injunction” jurisdiction we have The court summary judgment. 1292(a)(1). moved for an § For under 28 U.S.C. case sum- motions for Appellees’ granted appealable pursuant order their 1292(a)(1), several claims and clear and under mary judgment on it must be a court, other the district voluntary to dismiss their standable directive from motions through contempt must to it be enforceable “REMANDED court then claims. The all give and it some or proceedings, must development, [Corps] [but] for further com sought relief of the substantive purpose jurisdiction for retained Army Corps plaint. Alabama DE appropriate remedy.” determining Cir. Eng’rs, Judg- (hereinafter “Summary at 2005). district court’s Remedies Or Order”). After the court entered ment clear, contains enforceable directives der moved dismiss judgment, com requested Sierra Club its relating to formal moot the claims ESA (issuing DE 103-04 See 387 at plaint. with the FWS because consultation Miners);. DE at 53 specific orders subsequently engaged Corps and FWS injunctive relief amended (requesting to the Lake formal consultation related the court stated: complaint). example, For effect the wood stork— permits’ Belt words, devegetating, de other all sought. Appellees ESA relief scraping, blasting, and har mucking, followed the court’s otherwise vesting aquifer from the of limestone *6 began on an judgment, and work SEIS 60-day range] in immedi stop [the must raised. address the issues the court had (no p.m. ately than Tues later 5:00 day, July 17, 2007). The court denied the motion to dismiss supple- a Order” and entered “Remedies 103; see also id. at 103-04 DE 387 at Summary Judgment menting the Order (ordering activity specif- cessation of other 372; DE DE addressing remedies. mining company). ic to each Sierra Club The held that the must court express district court’s decla- points vacated, stayed of but the vacatur some issuing injunction, it not an ration that was of its permits pending Corps’s release n. this is DE 387 at 31 but we conclude stayed the court Specifically, SEIS. con- an instance where substance should mining any permits licensing vacatur of over The district court issued trol form. “60-day range” of North- outside the specificity of such and breadth commands appealed. west Wellfield.2 The Miners litigant that no would dare violate them. commands, not instead appeal, choosing The did If the had violated the Miners judg- comply with the district court’s court have initiated con- the district could appear appeal tempt proceedings, ment and to in this as ami- and it is not clear to us accept you that the court would “But said cus curiae. mining impact quality significant have on the of could because the more-limited a issue im- impact environment” other than the significant "will a on the human not have pacts in the EIS. quality discussed of the human environment.” AR 614 81; ("AR” at 1028 at 113 refers to the AR record, with 60-day range administrative filed the district area which 2. The is the from 19). only plausible reading seepage groundwater court at reach the North- DE can aquifer days. mining "will west Wellfield’s within 60 of ROD is that the limited injunction” “In A. Judgments Underlying Injunc- defense. wasn’t short, tion adage: adhere to the time-tested we duck, duck, quacks like a if it walks like First, we precisely must determine duck, and looks like a then it’s duck.” which judgments we must address. The Indus., Indus., Inc., BMC Inc. v. Barth four claims Sierra Club’s com- amended (11th Cir.1998) 160 F.3d plaint on which the granted district court J.). (Tjoflat, were, summary judgment short: an against APA-CWA claim Corps, be- jurisdic- accept pendent furthermore We Corps erroneously cause the held that no grant of sum- tion over the district court’s practicable existed, alternatives because mary judgment. Holdings Like Cable improperly pro- balanced the Cooke, Battlefield, Inc. v. ject’s detriments, benefits and and because (11th Cir.1985), summary judg- failed a public hearing, to hold in- grant provided ment the basis for the (Claim I); against an ESA claim junction. “Consequently, prop- we cannot Corps, Corps’s because the BA erroneous- erly jurisdiction exercise our under ly concluded that the would have 1292(a)(1) reviewing without also stork, impact endangered no on the wood grant partial summary judgment.” Id. (Claim III); an against APA-ESA claim concurring Corps’s FWS for no III. Merits Discussion (Claim determination, IV); impact and an Summary Judgment Order and its against Corps, APA-NEPA claim be- together Remedies Order supplemental cause the EIS failed meet NEPA’s re- span pages containing 617 footnotes. (Claim V). quirements, After the district 73; DE DE 387. We commend the dis- granted summary judgment, court but be- judge thorough analysis, trict for his but Order, fore the court issued the Remedies the Orders must be vacated and the case and FWS undertook ESA for- grant remanded because he failed to mal consultation —the relief Sierra contemplated the level deference requested for III It Club Claims and IV. Though portions the APA. other improper was therefore for the district *7 correct, analysis may district court’s be rely judgments court to on those Claims’ may support finding and alone a that the crafting remedy; a the claims were arbitrary capricious acted in an and Thus, rely moot.3 the district court could manner, district that the court made clear only judgments on its on Claims I and V— remanded to the because of the judgments APA-NEPA APA-CWA and Corps’s injunc- “cumulative effect” of the errors. against issuing the the —in DE judg- 73 at 183-84. On remand the district tion. We therefore review those Corps’s court review the environ- ments. should analysis using proper
mental level of B. Review Standard of deference, again determine whether any provides judicial the cumulative effect of errors re- The APA for re quires vacating Corps’s like agency view of decisions say any summary judgment exception 3. This is not to defendants are to dismissal—a extraordinary remedy judgment underlying vacated entitled to the of vaca- must be before judgments against generally tur of the ESA claims can be dismissed. See U.S. FWS, P’ship, Though, Bancorp Mortgage v. Bonner Mall an issue we do not reach. Co. out, 18, 386, point "summary 233 as the Miners there is no 513 U.S. (1994). 115 S.Ct. 130 L.Ed.2d mootness, judgment exception" a there is 1360 additional changes, agency Min- or the receives permits to the grant CWA
decision
situation,
agency
dur-
decisions
information.
Corps’s
and the
NEPA
ers
review-
NEPA determi-
process. “The
must make an additional
ing
permitting
set
wheth-
agency
shall ... hold unlawful
must determine
ing court
nation:
action, findings,
conclu-
create,
agency
changes
or
information
aside
er the
arbitrary, capricious,
...
reveals,
quality
sions found
of
significant effects
discretion,
not in
or otherwise
an
of
abuse
previously
the human environment not
found to
with-
[or
be]
with law
accordance
Natural Res.
considered. Marsh
Or.
by
required
procedure
of
out observance
1851,
Council,
374,
360,
490
109 S.Ct.
U.S.
706(2).
§
standard
“[T]his
5 U.S.C.
law.”
1859,
(1989);
40
377
see also
104 L.Ed.2d
Ani-
exceedingly
Fund
is
deferential.”
1502.9(c)(1).
new, significant
§
If
for
C.F.R.
(11th
Rice,
mals,
Inc. v.
shown,
agency
pre-
must
are
effects
Cir.1996).
role
to ensure
The court’s
is
1502.9(c)(1).
§
40 C.F.R.
pare
SEIS.
to a
conclu-
agency
came
rational
is
proposed
to the
action
change
When
sion,
own investigation
“not to conduct its
measure,” however,
“minimizing
judgment
its own
and substitute
required to
agency
automatically
“is not
Pre-
agency’s decision.”
administrative
analysis.”
redo the entire environmental
Endangered
History,
Areas Cobb’s
serve
of
Army
Eng’rs,
Club v.
Sierra
(“PEACH”)
Army Corps
v. U.S.
Inc.
Cir.2002).
This
F.3d
(11th Cir.1996).
1242, 1246
Eng’rs, 87 F.3d
minimizing
measure’s effects
is because
usually
will
fall within
on the environment
NEPA
C.
analysis.
scope
original
NEPA
procedures
NEPA establishes
(holding
realignment
id.
that road
See
must
agency
a federal
follow before
impact
within
minimize environmental
was
any
agency initially
taking
action.
EIS).
scope
original
to be
must determine whether
action
NEPA
that an
requires
“major
ac
taken constitutes a
Federal
follow
it does not
agency
procedure;
is,
“significantly af
an action
tion”—that
any
“If the
particular
mandate
result.
fecting
quality
of the human environ
pro
environmental effects of the
adverse
4332(C);
see
ment.”
U.S.C.
adequately
action
posed
identified
(“Major
§ 1508.18
reinforces but
C.F.R.
evaluated,
agency
is not constrained
meaning independent
not have a
does
deciding
from
other values
NEPA
”).
....
If the
deter
significantly
agency
outweigh
environmental costs.” Rob
“major
activity
that a
proposed
mines
is
Council,
Valley
ertson v. Methow
Citizens
action,”
agency
must discuss
Federal
1835, 1846, 104
350, 109 S.Ct.
490 U.S.
issues in a detailed statement —the
certain
*8
(1989). Moreover,
agen
an
L.Ed.2d 351
hand,
agen
Id.
if the
EIS.
On the other
cy’s
only
NEPA decisions
reviewed
activity is
cy
proposed
that a
determines
highly
stan
under
APA’s
deferential
action,”
“major
pro
must
not a
Federal
it
Id.;
Transp.
Pub. Citi
Dep’t
dard.
“finding
significant impact”
a
of no
duce
zen,
752, 763,
2204,
541 U.S.
124 S.Ct.
(“FONSI”),
“briefly present
a document
2213,
(2004);
1361 issuing A only found that court can Because find a federal “major permits would be a Federal agency’s attempted those compliance NEPA in action,” it 614. Af- prepared an EIS. AR it adequate where is arbitrary, capricious, objec- severe specifically, ter or an abuse discretion violation of the criticism— regarding possible tions contamination Yankee, APA. Vt. 435 at U.S. 98 possible Northwest of the Wellfield S.Ct. 1197. This standard requires sub effect on protected detrimental wood only stantial deference to the agency, not Corps adopted minimizing stork —the a reviewing when decisions like evi what it permits’ measure: reduced the duration dence find to credible and whether issue years and acre- permits’ to 10 limited the EIS, a reviewing FONSI or but also when minimizing After age. adopting the meas- drafting decisions like how much discus information, receiving the new ure sion on topic, to include each how FONSI, a at Corps issued AR 1028 necessary much data is fully address 50-year read as an addendum the best each The district issue. court here fre EIS, rejecting the notion that the new quently condemned on actions based change project information and were disagreement, simple rather than on based that an SEIS was required. such Three a finding that the actions violated the NEPA issues were before the therefore APA’s deferential standard.4 (1) Corps’s court: district whether the de- Moreover, NEPA is procedur 10-year permits termination that al, setting forth no substantive limits significant have no would effect outside the Robertson, agency decision-making. arbitrary, scope original EIS was at Simply put, S.Ct. 1835. discretion, capricious, or an abuse of AR agency taking whether the federal up ends (environmental containing assessment “major Federal action” at has issue (2) FONSI); Corps’s Corps’s whether the do nothing to with NEPA compliance; determination that new re- information requires NEPA that fol agency contamination garding of the Northwest process low a certain in deciding whether Wellfield and effects on the stork did wood case, action. take the Id. In this arbitrary, necessitate an not SEIS was discretion, violate NEPA if would not noted capricious, or abuse of AR EIS (3) 1028; 50-year permit granting whether that would result requirements, met NEPA’s AR 614. permanent, EIS irreversible destruction of E.g., groundwater (holding permit 'reasonably DE 73 at 65 that conditions be enforce- adequately” regulation contamination was not in [a “studied able’—found unrelated to id. at data”); NEPA]”); (rejecting Corps's was without "sufficient inter- id. ("Corps recognized pretation at drawing should have data and con- different id. at 91 clusions); (dismissing Corps’s it lacked essential ... should miti- information and gation appears” been more to [wellfield have conservative as conclusion because "it risks.”); id. at 69 (holding enough contamination] Pennsuco wetlands will be available id. at reports mitigation); (holding reliance on technical 92-93 information); id. twenty years "more than rendered its sufficient old” failed to disclose (rejecting Corps’s finding wellfield contamination discussion inade- at 100-01 recognizes economically quate; alternative "[e]ven non-scientist "no action” was not feasible); id. poses problem ever-changing assump- (making at 101 n. 174 *9 id. at support contrary ecosystem”); of South to world Florida’s tions to conclusions conclusions); id. at 104 (stating Corps Corps’s (criticizing that "it the 70 was error for to brief”); id. id. at paid [seepage]”); "exceedingly so little 112 have attention to discussion as (holding Corps's by ap- 72 (stating upon at too "reliance the discussion "far that NEPA, reports vague compliance subjected to be in ... plicant-supplied with and its must be open-endedness scrutiny”). requirement special violates the that to 1362 permits.5 the Substantive issues Everglades, but the tioned entire
the Florida permits to the and what grant out- like whether that economic benefits Corps decided adopt to are irrele- mitigation im- conditions negative environmental weighed that following compliance. vant to NEPA run might That decision pact. capricious highlights the court’s passage district duty imposed by a different afoul of places substan- flawed belief that NEPA statute, duty any not but it would violate limits on action: tive federal id. 350-51, 109 by at imposed NEPA. Cf. (“[I]t fifty not permits would have violated If these had been issued as
S.Ct. 1835 Service, comply- in- year permits, if the after the Court would have NEPA Forest the directed procedural prerequi- permits validated the ing with the Act’s (rather deny permits to the sites, than had that to be decided benefits the case for further Sandy simply remanding at skiing derived from downhill have Such a conclusion would study). use justified special the issuance of a Butte (and required NEPA been under notwithstanding per- of 15 permit, loss CWA) significant because of the adverse cent, percent, percent 50 or even 100 miti- Corps’ effects insufficient may Other the mule deer herd. statutes analyses. gation other obli- impose environmental substantive agencies, on NEPA gations federal but added). (emphasis at 106 NEPA DE 73 merely prohibits than uninformed —rather can never to provide grounds for a court (footnote agency action.” omit- agency’s direct federal substantive deci- unwise' — ted)). sion. NEPA erro- analysis opinion
The district court’s offer no as to whether We Corps’s to neously Corps complied during on the decision NEPA focuses with however, granting must, major process. take the Federal We permitting action — miti- adequacy of the and re- permits vacate district court’s orders —and for the issues decided gation measures on which the condi- mand NEPA to be E.g., (criticizing Corps’s stroyed, mitigation DE deci- then re- 73 at 69 for that loss is grant permits, sion and the lack of quired” requirement); id. at substantive —a conditions); protections at 77 placed as id. (”[T]he Corps’ permitting partic- 96 decision— ("The by underlying Court is troubled (em- satisfy ularly the EIS—does not NEPA.” Corps' suggests theme of the ROD which that added)); ("[T]he phasis permits id. at 103 designed have to be at issue been environmentally prefer- ... are issued not the fifty year mining plan.”); extended to full Thus, Corps' .... deci- able alternative (stating incorrectly "Corps id. at that was NEPA.”); compliance sion was not in with id. NEPA, required, attempt to first to avoid (expressing at 104-05 dissatisfaction that the impacts and to minimize [EIS-discussed] then allow intends to for full unavoidable, and, finally, whatever was years); (stating erroneously id. at 109 that mitigate any adverse affect”—substantive Corps’ purposes analysis, "for of the NEPA incorrectly requirements); (stating at id. impacts important environmental are more "Mitigation interpreted that ... has been ones, than economic economic and so- [sic] require replacement functional value impacts importance lesser than cial have wetlands, is, there be no net should ecological purely impacts”); or environmental values”); (deciding id. loss of wetland at 90 ("[Miners' id. at 112-13 losses can- economic] "Corps’ decisions counter [sic] runs justification possible, for the even not evidence”); (expressing to the id. at 91 con- probable, effects deleterious environmental mitigation adequacy cern about of Pennsuco by mining.”); (speculat- id. at caused (“The plan); id. at record the Court before ing takings litigation costly "created a suggests comply did with EIS, specter may spurred ... which have preparing issuing NEPA in nor added)); of wetlands permits." (stating destruction of hundreds acres (emphasis id. at 95 unnecessarily”). going be de- "[i]f the wetlands *10 Indeed, by the district court in the first instance mind. predet- the court made its grant Corps because the court failed to ermination of the explicit ultimate issue in its proper level of deference and conclusion: because recognize the court failed to NEPA’s limit- however, Regardless, of whether new operation procedural, ed rather than may studies soon Aqui- indicate that the substantive, agencies. command to federal fer is being harmed mining remand, activities, On the district court should ad- or that the groundwater seep- eye age minimized, dress the issues with an toward the effects can be or if even proper probing analysis APA standard a more deferential reveals that limited, truly there procedural practicable NEPA’s are no scope. envi- ronmentally preferable alternatives D. CWA in mining precious resource, this unchanged. Court’s conclusion would be pervasive The same lack of deference infects the district court’s APA-CWA anal- words, DE 73 at 183. other no matter ysis.6 analysis, concluded, As with its NEPA what and no matter conclusion, court failed view what evidence supported the CWA claims that the court would have through mining the deferential lens of the APA.7 banned be- cause of own its conclusion that judgment mining claim CWA-APA Id. at the Lake Belt is a bad thing. also is vacated. 184- 85. The grant deny discretion to or CWA IV. Conclusion however, permits, given is first to federal agencies, not federal courts. prede- district court seems to have issue, termined the answer to the ultimate Again, opinion we offer no as to that concluding per- should not whether with complied NEPA Belt, mit analyzed the Lake or during the CWA the permitting proc the permitting process with that answer in ess.8 We instead remand to the district reject argument 6. We (rejecting the Miners’ Corps’s at 150 conclusion that no apply APA Corps's perform practicable does not to the alternatives for limestone exist that, result, ance concluding of its CWAduties and as a and instead that “[t]he adminis- that, indeed, sovereign the United States has not clearly waived trative record establishes immunity sources”); Corps. as to the ("Corps In Bennett v. there are other id. at 154 1154, Spear, 520 judgment analysis 117 S.Ct. made a clear error of in the (1997), Supreme practicable L.Ed.2d 281 Court re alternatives under the CWA context, due, jected argument this part, agency’s in the ESA id. at to the reliance on a 117 S.Ct. study independently and the relevant statuto that should have been ry language verified.”); in the (disagreeing ESA is almost identical to id. at 157 with analogous portion Compare Corps's mining per- of the CWA. determination that the 1540(g)(1)(ESA), § contrary 16 U.S.C. public with 33 U.S.C. mits would not be to the 1365(a)(CWA). Moreover, interest); (holding Corps’s the United id. at 162 decision persuasively argues public States hearing required its amicus brief was not was an discretion). sovereign immunity that the APA waives abuse of Corps CWAdecisions. disagreement Judge 8.Our with Kravitch is E.g., (reaching “opposite exceedingly DE 73 at 142 con- narrow. The district court’s evidence”); judgment clusion” based on "record at id. is based on dozens of individual (criticizing appears holdings, injunction resting upon because “it as is the quickly judgment. Judge too suggests dismissed alter- Kravitch Belt”); mining’ native by affirming of 'no in the Lake id. at a handful of individual hold- (“Corps assumptions, ings holdings opinion made several ad- does not — adequately explained judgment none are in the ROD or dress—this Court can affirm the record”); injunction entirety; disagree. elsewhere in the administrative id. in their we *11 record, have might in first and well different questions those the five answer court to Thus, after instance, the standard and the applying proper terms conditions. Order, judgment, nothing was more The APA-CWA Remedies there review.9 the Remedies judgment, APA-NEPA and in the court with re- be done district to vacated, and case is remand- are Order spect to these with proceedings ed further consistent Second, the also correct that majority is opinion. this Endangered Act claim Species was and REMANDED. VACATED by the with the Corps’ mooted consultation Unlike ma- Fish Wildlife Service. KRAVITCH, concurring Judge, Circuit however, I we should re- jority, believe part dissenting part: appeal mining on this whether solve agree of the ma- Although I with much vacatur of the companies entitled to I must dissent jority’s opinion, respectfully reject- judgment. district court ESA agree I judgment. Specifically, from its motion to ESA claim as ed a vacate the jurisdiction, the Endan- that we have moot, and there is no reason to believe the mooted, and gered Species Act claim was then. equities changed have since Be- analysis district NEPA court’s issue, I I would would cause reach But I would affirm was erroneous. companies are not hold disposition the Clean district court’s leading to vacatur. As the entitled Su- claim, as Water Act well as its remedial clear, case vacatur of preme Court makes decisions. appeal on judgment equitable is an reme- dy, predominant equitable consid-
First,
majority that we
agree
I
with the
mootness is brought
eration is whether the
jurisdiction over the Sum-
appellate
have
by
party seeking appellate
about
re-
Judgment and
Orders.
mary
Remedies
view,
below,
by
party
by
or
is,
substance,
prevailing
latter order
both
happenstance.
Bancorp Mortgage
injunction,
by
explained
for the reasons
18, 25,
P’ship,
Mall
order,
v. Bonner
513 U.S.
majority,
and a final
because Co.
(1994).
386,
because
Next, I turn to the National Environ-
conduct,
he
by his own
appeal
his
Again,
agree
Act
I
Policy
claims.
mental
review but
right
appellate
his
abandons
majority
although
the
the district
with
preclu-
that the
any argument
also forfeits
the correct NEPA standard of
court cited
him
against
judgment
the
effect of
sive
review,
substantially
wrong
applied
ought to be erased.
procedural
one.
district court did find
The
claim.
Here,
mooted the ESA
Corps
permitting process,
faults with
Order deter-
Summary Judgment
The
may
basis to
those faults
sufficient
of its
Corps was
dereliction
mined the
violated NEPA.
conclude
Species Act
Endangered
under
duties
proce-
But the district court’s evaluation
about the
with FWS
by failing to consult
compliance is so intertwined
dural NEPA
mining on
wood
of the instant
effects
critique
Corps’
with a substantive
in this deter-
Corps acquiesced
The
stork.
for a
simply impossible
that it is
decision
the consultation
by undertaking
mination
separate
court to
harmless from
reviewing
party
it a
by the ESA. Were
required
prejudicial errors.
Corps could not obtain
appeal,
NEPA errors are
Yet the district court’s
the claim.
it mooted
because
vacatur
Because I be-
judgment.
not fatal to its
Granted,
not the
mining companies,
correctly deter-
lieve the district court
requesting va-
parties
now
are
Corps,
violated
Clean
mined
plaintiffs, their
against
But as
catur.
I
permitting process,
in the
Water Act
those of the
better than
equities are no
the district
affirm on that basis
would
they
from
decision
benefit
Corps, whose
vacating
judgment
court’s
brought
plaintiffs
The
defending.
ma-
Thus,
dissent from the
respectfully
I
part,
to force
litigation,
contrary. Although
to the
jority’s decision
won,
They
obtain-
the ESA.
comply with
court made some misstate-
the district
Corps then
summary judgment. The
ing
analysis, I
in its
believe
ments of law
CWA
rather
obligations
procedural
fulfilled its
rec-
error and that the
they are harmless
entitles the
Equity
here.
than seek review
to affirm the
a sufficient basis
ord contains
judgment, with
to maintain their
plaintiffs
affirm the district
I would
judgment.1
prevailing party
effect
preclusive
claim be-
of the CWA
disposition
court’s
See, Mor-
accompany
e.g.,
it.
which
status
(i)
failing to
by
erred
cause
Director,
Citi-
v. District
illo-Cedron
alterna-
practical
apply
presumption
Svcs., 452 F.3d
zenship
Immigration
(ii)
the Larsen
Cir.2006)
by relying on
(11th
tives and
(discussing pre-
1257
practical
status).
an absence
report
I
to establish
Accordingly, would
vailing party
(remand
by reliance on
warranted
id. at 1363
majority, I do not believe the
1. Unlike
Moreover, the cumulative
Report).
Larsen
"cumulative”
court’s statement about
district
alternative hold-
was itself an
compels
error statement
the conclusion
error
Corps’ errors
ing:
effect of the
the cumulative
every
court committed
error the district
if” one or two such
remand "even
warranted
prejudicial. The district court elsewhere
was
error
not. The cumulative
independently
defects would
multiple,
that there were
stated
upon which to
too thin a reed
summary judgment.
statement is
grounds for
sufficient
logically
Flowers,
See,
of otherwise
that dozens
conclude
e.g.,
Club v.
Sierra
indepen-
(five
(S.D.Fla.2006)
holdings in fact are not
independent
in-
F.Supp.2d
dent,
EIS);
accordingly
we cannot affirm
inadequacies in the
dependent NEPA
support
judgment
grounds
(remand
sufficient
by failure to
warranted
id. at 1356
alternatives);
opinion.
notwithstanding error in the
practical
apply presumption of
Cir.1994) (deter-
undertaking indepen-
alternatives without
accuracy.2
mining project purpose
dent verification of its
is “central” to
practicable
analysis).
alternatives
pertinent
regulations prohibit
CWA
Corps has discretion to characterize the
granting
prac-
if “there is a
project’s
purpose in
basic
the first
in-
proposed discharge
tical alternative to the
stance, including
accept
whether to
or re-
*13
impact
which would have less adverse
ject
applicant’s
characterization of that
aquatic ecosystem,
long
so
as the alter-
purpose.
In
doing,
so
must
significant
native does not have other
ad-
applicant’s goals
take the
purposes
consequences.”
verse environmental
40
into account. Louisiana
Federa-
230.10(a).
Wildlife
§
C.F.R.
A
presumption
York,
(5th
1044,
v.
tion
761 F.2d
1048
environmentally
practical,
preferable alter-
Cir.1985). But “an applicant cannot define
“activity
natives exist
if the
arises
associat-
project
a
in
preclude
order to
the existence
ed with a discharge
proposed
which is
for
any
of
alternative sites and thus make
require
a [wetland] does not
access or
practicable appear
what is
impracticable.”
proximity
siting
to or
within the [wetland]
Sylvester
Army
v. U.S.
Engi-
(ie.
question
in
purpose
to fulfill its basic
(9th
neers,
407,
Cir.1989).
882 F.2d
409
If
dependent).”
is not water
40 C.F.R.
applicant
so
Corps adopted
did
and the
230.10(a)(3).
§
presumption
applicant’s
pro-
characterization of the
practical, environmentally preferable alter-
ject’s purpose,
would have
applies
natives exist
until
proponent
abused its discretion.
discharge “clearly
oth-
demonstrate^]
Further,
erwise.”
practical
Id
all
alter-
words,
In other
question
spe
is how
discharge
natives to
in
pre-
wetlands are
cifically
project’s
to construe the
basic
sumed to
impact,
have less adverse
unless
Decision,
purpose.
In its Record of
clearly
demonstrated
otherwise.
Id Corps stated that the basic purpose of this
Thus,
presumption applies,
where the
limestone,”
project is to “extract
but the
permit applicant
pro-
bears the burden of
project purpose
overall
is to provide “con
“detailed, clear,
viding
in-
convincing
struction-grade
limestone from Miami
proving
formation
that an alternative with
County.”
Dade
In
language
of the
impact
less adverse
impracticable.”
is
regulation,
“activity
associated with
Flowers,
Greater Yellowstone
v.
Coalition
the discharge,”
mining,
limestone
does not
Cir.2004).3
359 F.3d
1269
Fur-
require “siting within the
[wetland]
ther, such
provided by
per-
information
question to fulfill its
purpose,”
basic
ex
mit applicant must
independently
be
veri-
tracting
limestone.
See 40 C.F.R.
fied
Corps.
Id
230.10(a)(3).
§
mining
Limestone
in gen
language
Given the
regulation,
of the
eral
water-dependent.
is not
National
Cf.
correct statement of
project’s
Norton,
“basic
Federation
v.
Wildlife
purpose”
(D.D.C.2004).
affects
presumption
whether the
F.Supp.2d
n.
practicable
applies,
alternatives
securing
Neither does
supply
limestone
thus the extent of
applicant’s
burden.
from South Florida require
project
Whistler,
See Nat’l
wetlands,
Federation v.
be situated in
as there are other
Wildlife
foregoing
implies,
agree
As the
I also
many opportunities
with
3. This court has not had
230.10(a)(3).
majority’s reasoning
interpret
40 C.F.R.
In our
Administra-
so,
only case to have done
tive
Fund
Procedure Act
Animals
sovereign
waives federal
Rice,
(11th Cir.1996),
immunity concerning
challenges
to CWA
appears the record was clear that no feasible
§ 404
alternatives existed.
lands,
literally
but
where it
cannot
located in south
deposits of limestone
done elsewhere.
only mining
particular
It is
Florida.4
project
require
that would
limestone
course,
mining
Of
limestone
has to occur
be situated wetlands.
deposits
where limestone
are. So if the
only deposits
Lake Belt contained the
court concluded that
The district
Florida,
perhaps
south
then
a conclusion of
mining
Corps, following the lead
water-dependency
justified.
would be
But
project’s purpose
construed the
companies,
assuming
even
that limestone sources from
artificially narrow fashion to avoid
in an
other states and nations are irrelevant to
alternatives,
practical
presumption
analysis,
the alternatives
it is conceded
I
thereby abusing
agree.
its discretion.
deposits
there are limestone
else-
effectively
pro-
construed the
my view,
where
south Florida.
this lime-
ject’s
purpose
basic
*14
issue, regard-
water-dependency
ends the
out from underneath these wetlands.
stone
deposits
less of whether
other
are inac-
construed,
water-depen-
a conclusion of
So
quality.
cessible or of inferior
dency
site-specif-
But such a
is inevitable.
project’s purpose
simply
formulated the
as
project’s purpose
could
ic formulation of
limestone,
extracting
securing
or as
a lime-
every permit
no doubt be formulated
Plainly,
stone
from
Florida.
supply
south
application,
acceptance
and routine
such
potential
there are
alternative sites to
emasculate the wet-
formulations would
achieve
If
purposes.5
these
those alterna-
lands-protecting presumption, defeating its
infeasible,
mining companies
tives are
Moreover,
purpose.
site-specific
such a
should
able
to make their case that
project’s
purpose
formulation of a
basic
practical, environmentally
there are no
Corps’
for-
appears inconsistent with
preferable
they
alternatives. But
should
in
project purposes
mulation of
other
higher
have to
proof
bear the
burden of
simple examples
cases. Two
illustrate the
necessary to
presumption
rebut
applicant
an
seeks to build
point. When
my
In
practical
doing.
alternatives
so
docks,
project’s
houses with boat
his
basic
view,
Corps’
apply
pre-
failure to
housing, which need not
purpose is to build
summary
sumption
judgment
warranted
(The
occur on wetlands.
boat docks are
against it on the CWA claim.
purpose.)
incidental to the basic
Shoreline
(D.Md.1983),
Marsh,
F.Supp. 169
Assoc. v.
Regardless
presumption
of whether the
(4th Cir.1984).
continued interest, I contrary public to the
od is remedi- district court’s hold that the
would abuse of discre- not an
al decisions were
tion. per- I believe
Accordingly, because of the Clean in violation
mits were issued Acts Procedure and Administrative
Water subsequent deci- court’s
and the district discretion, I its remedial
sions were within judgment. from the
respectfully dissent McCANN, Plaintiff-Appellant,
Georgia TILLMAN, Haley, Michael David
Jack Bounds,
Turner, Mobile Melissa Board,
County Defendants- Personnel
Appellees. 07-11743.
No. Appeals,
United States Court
Eleventh Circuit.
9,May