United States District Court, D. Minnesota
W. Von Korff and Anna K.B. Finstrom, RINKE NOONAN, for
Patrick O'Donovan and Max H. Kieley, Assistant Attorneys
General, for intervenor-plaintiff.
Lehman McCune, for defendants.
E. Cattanach, Michael R. Drysdale, and Theresa M. Bevilacqua,
DORSEY & WHITNEY LLP for the Fargo-Moorhead Flood
Diversion Board of Authority.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
long as people have lived and worked in the Red River Valley
that borders the States of North Dakota and Minnesota, the
Red River of the North (“Red River”) has caused
significant flooding problems for local communities. The
parties to this case and the Court all recognize the need for
permanent flood protection for the individuals residing in
the Red River Valley, especially the growing Fargo-Moorhead
community. In addition to the serious flood-related issues,
this case presents difficult and complex questions regarding
a state's ability to regulate border projects on major
waterways when non-Federal actors undertake significant
portions of a federally-approved project.
Plaintiff Richland/Wilkin Joint Powers Authority
(“JPA”) and Intervenor-Plaintiff Minnesota
Department of Natural Resources (the “DNR”)
allege that Defendant U.S. Army Corps of Engineers (the
“Corps”) and Defendant-Intervenor Fargo-Moorhead
Flood Diversion Board of Authority (the “Diversion
Authority”) violated state and federal laws by signing
a project partnership agreement and beginning construction on
a permanent flood protection project without the Diversion
Authority obtaining requisite permits from the State of
Minnesota. The DNR and JPA seek a preliminary injunction to
prevent the Corps and the Diversion Authority from continuing
construction until the Diversion Authority obtains the
allegedly requisite permits.
response, both the Corps and the Diversion Authority argue
that a preliminary injunction is inappropriate. The Corps and
the Diversion Authority further move to dismiss certain
claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure. After the hearing on these motions, JPA
filed a motion for sanctions under Rule 37(c)(1) of the
Federal Rules of Civil Procedure, seeking postponement of the
Court's ruling on the pending motions until the record is
fully supplemented and supplemental briefing is completed.
Court will grant the Diversion Authority's limited motion
to dismiss, grant in part and deny in part the Corps'
motion to dismiss, grant the DNR's and JPA's motions
for a preliminary injunction, and deny JPA's sanctions
a joint authority created by Richland County, North Dakota,
and Wilkin County, Minnesota, pursuant to statutes in each
state allowing their respective government units to jointly
and cooperatively exercise power with other government
units, even those in other states. (Pl. Fourth Am. Compl.
(“JPA Compl.”) ¶¶ 2-5, April 3,
2017, Docket No. 419); see also Minn. Stat. §
471.59 (“Joint Exercise Powers”); N.D. Cent. Code
§ 54-40.3 (“Joint Powers Agreements”).
Richland and Wilkin Counties formed JPA to protect their
citizens and their citizens' property from flooding. (JPA
Compl. ¶ 2.)
is a statutory agency of the State of Minnesota responsible
for administering and enforcing Minnesota statutes and rules
related to the state's natural resources, including its
navigable waters. (Compl. by the Minn. DNR (“DNR
Compl.”) ¶ 6, Mar. 24, 2017, Docket No. 411.)
Corps is a federal agency involved in the development of the
permanent flood protection project at issue in this case.
(Id. ¶ 8; JPA Compl. ¶ 8.) Robert Speer,
Assistant Secretary of the Army for Civil Works, and Colonel
Sam Calkins are employees of the Corps. (DNR Compl.
¶¶ 9-11; JPA Compl. ¶¶ 7, 9-10.)
Diversion Authority is also a joint authority formed pursuant
to Minnesota's and North Dakota's joint powers
statutes. (DNR Compl. ¶ 12; JPA Compl. ¶ 11.) The
Diversion Authority was formed by the following government
units: the City of Fargo, North Dakota; Cass County, North
Dakota; Cass County Joint Water Resources District, North
Dakota; the City of Moorhead, Minnesota; Clay County,
Minnesota; and the Buffalo-Red River Watershed District,
Minnesota. Richland/Wilkin Joint Powers Auth. v. U.S.
Army Corps of Eng'rs (Dist. Court Order
II), 176 F.Supp.3d 839, 842 (D. Minn. 2016). The Corps
designated the Diversion Authority as the non-Federal sponsor
of the permanent flood protection project at issue in this
case, meaning the Diversion Authority is the local entity
tasked with developing and managing the project. Id.
River originates at the confluence of two tributaries,
demarking the Minnesota-North Dakota border. Id. The
broader, flat valley of the Red River was formed over
thousands of years as the lakebed of Glacial Lake Agassiz
which receded slowly as the ice melted to the north. Through
this flat valley, the Red River flows northward, eventually
emptying into Lake Winnipeg in Canada. Id. For as
long as humans have lived along the Red River, the river has
flooded. Id. In 2008, the Corps, along with the
cities of Fargo, North Dakota, and Moorhead, Minnesota, began
a feasibility study to examine “alternatives . . . to
reduce flood risk in the entire Fargo-Moorhead Metropolitan
area.” Id. After a major flood in 2009, the
project gained momentum and eventually the Fargo-Moorhead
Flood Risk Project (the “Project”) was developed.
Id.; (DNR Compl. ¶ 57).
required by federal law, the Corps conducted an environmental
review of the Project. (DNR Compl. ¶ 71.) In May 2010,
the Corps published a Draft Environmental Impact Statement
(“EIS”). Dist. Court Order II, 176
F.Supp.3d at 843-44. The Draft EIS discussed how the Corps
had studied the benefits and costs of several potential
options for flood control in the area. Id. In a
later Supplemental Draft EIS, the Corps continued to refine
its plans, and to publish and describe the varying drawbacks
and advantages of specific plans. Id. at 844. During
this process, the DNR submitted multiple comment letters to
the Corps regarding its concerns with the Project. (DNR
Compl. ¶ 72.) The Corps acknowledged the DNR's
concerns during the process and “ensured the DNR that
the Project required compliance with obligations imposed by
Minnesota's statutes and regulations.”
(Id. ¶ 73.)
2011 the Corps issued its Final Feasibility Report and
Environmental Impact Statement (“FFREIS”)
regarding the Project. (Id. ¶¶ 19, 71.) In
section 3.14.4 for the FFREIS, the Corps acknowledged that
[a]s part of implementing this project, the non-federal
sponsors [were] required to obtain a [DNR] protected waters
permit . . . . In order to obtain the necessary permits from
the State of Minnesota, the non-federal sponsors [were
required to] complete the scoping and review process required
by the Minnesota Environmental Policy Act. . . . The
construction contractors [were] responsible for acquiring all
local licenses/permits required to comply with state and
municipal laws, codes and regulations.
(DNR Compl. ¶ 74; accord JPA Compl. ¶ 34;
Notice of Submission of Exs., Ex. F at 109, Feb. 12, 2015,
Docket No. 162.)
Corps ultimately selected the “locally preferred
plan” (“LPP”) as its proposed action.
Dist. Court Order II, 176 F.Supp.3d at 844. In
December 2011, the Corps issued its Chief's Report
recommending the Project to Congress. (DNR Compl. ¶ 75;
JPA Compl. ¶ 35; Notice of Submission of Exs., Ex. I
(“Chief's Report”).) The Chief's Report
endorsed the FFREIS and noted in several locations that the
Project would comply with “Federal and State laws and
regulations.” (DNR Compl. ¶ 75; JPA Compl. ¶
35 n.2; Chief's Report at 4, 6-7.)
Assistant Secretary of the Army signed a Record of Decision
(“ROD”) and forwarded the Corps' relevant
reports and studies to Congress in April 2012. Dist.
Court Order II, 176 F.Supp.3d at 844. In 2014 Congress
passed and the President signed the Water Resources Reform
and Development Act of 2014 (“WRRDA-2014”),
authorizing the Project. Id. at 845 (citing Pub. L.
No. 113-121, § 7002(2)(4), 128 Stat. 1193 (2014)).
February 2016 the Diversion Authority submitted its
application for a Dam Safety and Public Waters Work Permit
(“Permit”) to the DNR. (DNR Compl. ¶ 82.) In
July 2016 the Corps and the Diversion Authority signed a
project partnership agreement (“PPA”),
“which set forth the rights and obligations of the
Corps and the Diversion Authority pertaining to Project
construction and operation.” (Id. ¶¶
26, 91; JPA Compl. ¶ 46; Decl. of Michael Drysdale in
Supp. of Mot. for Summ. J., Ex. G (“PPA”), Dec.
1, 2016, Docket No. 354.) The PPA divided construction
responsibilities into two categories - “Federal
Work” and “Non-Federal Work” - and
primarily limited the “Non-Federal Work” to
construction occurring on the North Dakota side of the Red
River. (DNR Compl. ¶ 93; PPA at 2.) The Corps took
responsibility for most of the work to occur in Minnesota,
excluding certain “flood risk reduction projects
undertaken in the F-M Metro Area.” (DNR Compl. ¶
93.) The PPA further provided that the Diversion Authority
“will operate, maintain, repair, rehabilitate, and
replace the Project” after the parties complete
construction. (Id. ¶ 94; PPA at 7.) At the time
the Corps and the Diversion Authority signed the PPA, both
the DNR Commissioner and Minnesota's Governor expressed
concerns that the PPA was premature in light of the Diversion
Authority's outstanding Permit application. (DNR Compl.
¶¶ 89, 92.)
denied the Permit in October 2016 finding the Project did
“not adequately protect the public, health, safety and
welfare of [Minnesota's] citizens, [did] not represent
the minimal impact solution, and [was] neither reasonable nor
practical.” (Id. ¶ 83-84 & Ex. 1
(“DNR Permit Denial”) ¶¶ 123-137, 198;
see also JPA Compl. ¶ 48.) The DNR further
found the Project non-compliant with environmental
requirements, floodplain requirements, and local and other
land resources management plans. (DNR Compl. ¶¶
85-87; DNR Permit Denial ¶¶ 138-97.) The Diversion
Authority requested a contested case hearing regarding the
Permit denial. (DNR Compl. ¶ 88.)
spite of the Permit denial, the Corps and the Diversion
Authority publicly “announced their intent to move
forward with Project construction.” (Id.
¶¶ 96-97; JPA Compl. ¶ 49.) The DNR responded
to this announcement by sending a letter
“unequivocally” stating “that Minnesota
permits are needed in order for either the Corps or the
Diversion Authority to construct this project
lawfully.” (DNR Compl. ¶ 99 & Ex. 2 at 1.)
Both the DNR and JPA allege the Corps and the Diversion
Authority have begun construction on the project without the
required Permit. (Id. ¶ 100; JPA Compl. ¶
filed its initial complaint on August 19, 2013, naming only
the Corps and certain individuals employed by the Corps as
defendants. (Compl., Aug. 19, 2013, Docket No. 1.) At first,
JPA alleged that in developing and choosing the LPP, the Corp
violated Minnesota law, Executive Order 11988 (“E.O.
11988”), and the National Environmental Protection Act
(“NEPA”). (First Am. Compl. ¶¶ 62-100,
Oct. 22, 2013, Docket No. 14.) In November 2013 the Court
granted the Diversion Authority leave to intervene. Then in
May 2014 JPA amended its complaint, naming both the Corps and
the Diversion Authority as defendants and limiting their
allegations to violations of NEPA. (Second Am. Compl. 1 &
¶¶ 62-91, May 2, 2014, Docket No. 47.)
certain proceedings occurred in North Dakota state court
regarding the OHB Ring Levee,  JPA filed a Third-Amended
Complaint against the Corps and the Diversion Authority
alleging five counts, including violation of: NEPA (Counts I
and II), Minnesota Environmental Rights Act
(“MERA”) (Count III), the Minnesota Environmental
Policy Act (“MEPA”) (Count IV), and state and
local permitting laws (Count V). (Third Am. Compl.
¶¶ 88-139, Nov. 4, 2014, Docket No. 112.) Then JPA
filed a motion for a preliminary injunction regarding the OHB
Ring Levee. (Pl.'s Mot. for Prelim. Inj., Feb. 11, 2015,
Docket No. 122.) In turn, the Corps and the Diversion
Authority filed motions to dismiss the state and local claims
in Counts III, IV, and V. (Corps' Partial Mot. to Dismiss
Third Am. Compl., Feb. 11, 2015, Docket No. 141; Diversion
Auth.'s Mot. to Dismiss, Feb. 11, 2015, Docket No. 145.)
Court ruled on the motions together. The Court dismissed
Counts III, IV, and V against the Corps because the Corps is
not bound by the relevant state laws. Richland/Wilkin
Joint Powers Auth. v. U.S. Army Corps of Eng'rs
(Dist. Court Order I), No. 13-2262, 2015 WL 2251481,
at *7-8 (D. Minn. May 13, 2015). The Court also dismissed
Count V against the Diversion Authority because JPA had not
shown that the relevant state and local permitting laws were
broad enough to support the requested relief. Id. at
*13 n.7. But the Court declined to dismiss Counts III and IV
- the MERA and MEPA claims - against the Diversion Authority.
The Diversion Authority argued that those claims must be
dismissed because any injunction based on Minnesota law
prohibiting construction activities inside the borders of
North Dakota would impermissibly extend the reach of
Minnesota's law outside the state's borders. The
Court disagreed, however, and found that such an injunction
would not impinge on extraterritoriality or Dormant Commerce
Clause principles because of the cross-border nature of the
Project, as well as the fact that JPA and the Diversion
Authority are partially composed of Minnesota governmental
units subject to Minnesota law. Id. at *10-15.
Finally, the Court granted JPA's request for a
preliminary injunction with respect to Counts III and IV
against the Diversion Authority, ordering that all
construction on the OHB Ring Levee cease. Id. at
*24-25. The Eighth Circuit affirmed the Court's order on
June 20, 2016. Richland/Wilkin Joint Powers Auth. v. U.S.
Army Corps of Eng'rs (Appellate Court
Order), 826 F.3d 1030, 1033-34 (8th Cir.
parties filed cross-motions for summary judgment regarding
the Third Amended Complaint. The Court granted the Corps'
and the Diversion Authority's motions for summary
judgment on Counts I and II (NEPA) with prejudice. Dist.
Court Order II, 176 F.Supp.3d at 852-53. The Court found
the Corps had complied with NEPA and the Administrative
Procedure Act (APA) in considering the environmental impacts
of the Project. Id. at 847-852. The Court further
found the NEPA claims against the Diversion Authority failed
because the Diversion Authority “is not a federal
entity, even if it is the sponsoring entity for the purposes
of the diversion project.” Id. at 852. The
Court dismissed the Corps from the case; leaving only
state-law claims against the Diversion Authority.
Id. at 841, 852-53.
the DNR Permit Denial in October 2016, the DNR moved to
intervene and the Court granted the motion. (Mem. Op. &
Order at 6, Jan. 13, 2017, Docket No. 398.) JPA also moved to
reinstate the Corps as an active defendant and to supplement
the pleadings. Richland/Wilkin Joint Powers Auth. v. U.S.
Army Corps of Eng'rs (Dist. Court Order
III), No. 13-2262, 2017 WL 740994, at *1 (D. Minn. Feb.
24, 2017). The Court granted JPA's motion and directed
both the DNR and JPA to file supplemental pleadings.
Id. at *2-3. The DNR filed its Complaint and JPA
filed its Fourth Amended Complaint on March 24, 2017. The DNR
alleges four counts: pursuant to the APA, violation of 33
U.S.C. § 2232 against the Corps (Count I); pursuant to
the APA, violation of WRRDA-2014 § 7002 against the
Corps (Count II); violation of MERA against the Diversion
Authority (Count III); and violation of Minn. Stat. chs. 103G
and 103F against the Diversion Authority (Count IV). JPA also
alleges four counts: violation of NEPA against the Corps
(Count I); violation of MERA against the Diversion Authority
(Count II); violation of Minnesota permitting requirements
against the Diversion Authority (Count III); and violation of
section 2232 and section 7002 against the Corps and the
Diversion Authority (Count IV).
the DNR and JPA then filed motions for preliminary
injunctions, seeking to enjoin the Corps, the Diversion
Authority, or anyone in active concert with either party from
continuing construction on the Project until the DNR issues a
Permit. The Corps and the Diversion Authority, in turn, filed
motions to dismiss the DNR Complaint and Fourth Amended
Complaint. The Corps moves to dismiss all claims against it
and the Diversion Authority moves to dismiss Count IV in
JPA's Fourth Amended Complaint.
Court held a hearing regarding the four motions on July 18,
2017. (Min. Entry, July 18, 2017, Docket No. 497.) Two days
after oral argument, the Corps and the Diversion Authority
allegedly disclosed certain documents relevant to the pending
motions. (Mot. for Rule 37(c)(1) Sanctions & for Order
Granting Leave to Suppl. Prelim. Inj. & Dispositive Mot.
R. at 2, Aug. 4, 2017, Docket No. 505.) JPA filed a motion
for sanctions under Rule 37(c)(1), requesting that the Court
postpone decision on the pending motions, allow
supplementation of the record, and order supplemental
briefing on the new information.
MOTIONS TO DISMISS
Standard of Review
Corps and the Diversion Authority move to dismiss under Rules
12(b)(1) and 12(b)(6). “A motion to dismiss pursuant to
Rule 12(b)(1) challenges the Court's subject matter
jurisdiction and requires the Court to examine whether it has
authority to decide the claims.” Damon v.
Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013). In
deciding a motion under Rule 12(b)(1), the Court must first
“distinguish between a ‘facial attack' and a
‘factual attack.'” Osborn v. United
States, 918 F.2d 724, 729 n.6 (8thCir.1990)
(quoting Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980)). “In a facial
challenge to jurisdiction, all of the factual allegations
concerning jurisdiction are presumed to be true and the
motion is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.”
Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993). In other words, in a facial challenge, the Court
“determine[s] whether the asserted jurisdictional basis
is patently meritless by looking to the face of the
complaint and drawing all reasonable inferences in favor of
the plaintiff.” Biscanin v. Merrill Lynch &
Co., 407 F.3d 905, 907 (8th Cir. 2005)
(citations omitted). In a factual attack, the court
“inquires into and resolves factual disputes, ”
Faibisch v. Univ. of Minn., 304 F.3d 797, 801
(8th Cir. 2002), and is free to “consider
matters outside the pleadings, ” Osborn, 918
F.2d at 729 n.6. The nonmoving party in a factual challenge
“does not have the benefit of 12(b)(6)
Court construes the jurisdictional arguments to present a
facial challenge. The Court finds no need to resolve any
factual disputes to decide the jurisdictional questions and
relies only on facts that are not in dispute and that are
appropriate for consideration under a Rule 12(b)(6) motion.
Degnan v. Sebelius, 959 F.Supp.2d 1190, 1193 (D.
Minn. 2013) (limiting its analysis of a facial jurisdictional
challenge to “the pleadings, matters of public record
and materials necessarily embraced by the pleadings”),
aff'd sub nom. Degnan v. Burwell, 765 F.3d 805
(8th Cir. 2014).
reviewing a Rule 12(b)(6) motion to dismiss, the Court
considers all facts alleged in the complaint as true to
determine if the complaint states a “claim to relief
that is plausible on its face.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). To survive a motion to dismiss, a complaint must
provide more than “‘labels and conclusions'
or ‘a formulaic recitation of the elements of a cause
of action.'” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). Although the Court accepts the complaint's
factual allegations as true, it is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility, '” and therefore must be dismissed.
Id. (quoting Twombly, 550 U.S. at 557)).
The Corps' Motion to Dismiss - Sovereign
Corps first challenges all claims filed against the Corps on
the grounds of sovereign immunity. A district court lacks
jurisdiction to hear a case against the United States or its
agents unless sovereign immunity has been expressly waived.
FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.”);
United States v. Kearns, 177 F.3d 706, 709
(8th Cir. 1999) (“The United States is
immune from suit except where Congress has waived that
Corps argues the Court lacks jurisdiction because both the
DNR and JPA failed to identify a final agency action subject
to review under the APA. The APA provides for judicial review
of a “final agency action for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. The
APA “evinces Congress' intention and understanding
that judicial review should be widely available to challenge
the actions of federal administrative officials.”
Califano v. Sanders, 430 U.S. 99, 104 (1977).
“When an agency action is final and, if final,
appropriate for judicial review[, ] are issues that have
arisen in a variety of federal agency contexts in the past
one hundred years.” Hawkes Co. v. U.S. Army Corps
of Eng'rs, 782 F.3d 994, 999 (8th Cir.
2015), aff'd, 136 S.Ct. 1807 (2016). In
Bennett v. Spear, the Supreme Court set forth a
two-part test for determining whether an agency action is
“final”: (1) “the action must mark the
‘consummation' of the agency's decisionmaking
process - it must not be of a merely tentative or
interlocutory nature”; and (2) “the action must
be one by which ‘rights or obligations have been
determined, ' or from which ‘legal consequences
will flow.'” 520 U.S. 154, 177-78 (1997) (citations
and JPA both argue the PPA is a final agency action subject
to review under the APA. They argue the PPA satisfies the
Bennett test because the PPA is a binding agreement
that determines the rights and obligations of the Corps and
the Diversion Authority for completion of the Project. In
response, the Corps argues the PPA is not a final agency
action because it does not mark the consummation of the
agency's decision-making process. Instead, says the
Corps, the PPA is a step in the process of implementing final
agency actions already taken - the ROD and the Chief's
certainly true that the performance and/or implementation of
a project is generally not considered “an agency rule,
order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act” as required by the APA.
See, e.g., Vill. of Bald Head Island v. U.S.
Army Corps of Eng'rs, 714 F.3d 186, 193
(4th Cir. 2013) (quoting APA, 5 U.S.C. §
551(13)); Wild Fish Conservancy v. Jewell, 730 F.3d
791, 800 (9th Cir. 2013). But entering into the
PPA is not necessarily implementation.
Louisiana State v. U.S. Army Corps of Engineers,
Fifth Circuit addressed the issue of whether a
Deauthorization Report sent to Congress or an agreement later
signed by Louisiana and the Corps were final agency actions.
834 F.3d 574, 581-85 (5th Cir. 2016). The Fifth
Circuit held that the Deauthorization Report was not a final
agency action, in part because the recommendation to Congress
noted that it was “subject to the non-Federal sponsor
executing an agreement with the Department of the Army prior
to the Federal Government initiating construction of the
closure structure.” Id. at 582. Thus, said the
Fifth Circuit, the Deauthorization Report
“anticipate[d] the necessity of further agency action
before the . . . project [could] be implemented.”
Id. In contrast, the Fifth Circuit found an
agreement entered between Louisiana and the Corps was the
“final agency action” because it was a
“binding agreement . . . that clearly set out the
cost allocation for the . . . project.” Id. at
583. And, as a binding agreement with legal consequences, the
agreement “consummat[ed] the agency's
decision-making process.” Id.
while complaining about actions after Minnesota denied the
Permit, both the DNR and JPA set forth allegations that the
PPA is a final agency action and that the Corps acted
arbitrarily and capriciously when it entered into the PPA
prior to the Diversion Authority securing the Permit.
(See DNR Compl. ¶ 26 (“Federal funding .
. .was contingent on the execution of a [PPA] and a finding
by the Corps that all outstanding regulatory issues facing
the project would likely be resolved . . . .”);
id. ¶ 92 (“[S]igning the PPA was
premature and inconsistent with the guidance from the OMB
when allocating Project funding.”); id.
¶¶ 107, 118 (signing the PPA “constitute[d]
final agency action”); id. ¶¶ 109,
120 (signing the PPA “[was] arbitrary and capricious,
an abuse of discretion, or otherwise not in accordance with
law”); JPA Compl. ¶ 46 (“The [Corps']
actions [signing the PPA] represent the consummation of the
agency's decision-making process and it constitutes an
action from which rights or obligations have been determined,
or from which legal consequences will flow. These actions
were outside the scope of the authority granted by
[WRRDA-2014] and were arbitrary and capricious”).)
Louisiana, the ROD and Chief's Report are not
the final agency action for the DNR's and JPA's
claims because the ROD and Chief's Report specifically
informed Congress that in order to implement the Project
“the non-Federal sponsors [had to] agree” to
certain requirements “prior to project implementation,
” including compliance “with all applicable
Federal and State laws and
regulations.” (Chief's Report at 4, 7 (emphasis
added).) Thus, the ROD and Chief's Report
“anticipate[d] the necessity of further agency action
before” the Project could be implemented.
Louisiana, 834 F.3d at 582.
applying Bennett, the PPA is the final agency
action. First, the PPA consummates the Corps'
decision-making process in that “it is a binding
agreement between the Corps and [the Diversion Authority]
that clearly sets out” the rights and responsibilities
for both the Corps and the Diversion Authority pertaining to
Project construction and operation. Id. at 853;
(see also DNR Compl. ¶ 91; JPA Compl. ¶
46; PPA at 3-15). Further, entering into the PPA “was
an act that, by its very nature, determined rights and
obligations and had legal consequences, which is precisely
what contracts do.” Alabama v. U.S. Army Corps of
Eng'rs, 382 F.Supp.2d 1301, 1324 (N.D. Ala. 2005).
these reasons, under the APA, the Court has jurisdiction to
hear the DNR's and JPA's claims against the Corps and
the Court will deny the Corps' Motion to Dismiss Counts I
and II in the DNR's Complaint and Count IV in JPA's
The Corps' Motion to Dismiss - Prudential
Corps also argues all of the WRRDA-2014 claims fail because
the DNR and JPA lack prudential standing. “The Supreme
Court has recognized prudential requirements for standing,
including ‘that a plaintiff's grievance must
arguably fall within the zone of interests protected or
regulated by the statutory provision . . . invoked in the
suit.” Nat'l Wildlife Fed'n v.
Westphal, 116 F.Supp.2d 49, 53 (D.D.C. 2000) (quoting
Bennett, 520 U.S. at 162) (interpreting a previous
version of WRRDA).
the zone of interests test is “generous and relatively
undemanding.” Id. “[T]here need be no
indication of congressional purpose to benefit the would-be
plaintiff.” Nat'l Credit Union Admin. v. First
Nat'l Bank & Tr. Co., 522 U.S. 479, 491 (1998)
(quoting Clarke v. Sec. Indus. Ass'n, 479 U.S.
388, 399-400 (1987)). Instead, the test only requires that
“the interest sought to be protected by the complainant
is arguably within the zone of interests to be
protected by the statute.” Id. at 492 (quoting
Ass'n of Data Processing Serv. Orgs., 397 U.S.
150, 153 (1970)). But where a plaintiff “is not itself
the subject of the contested regulatory action, the test
denies a right of review if the plaintiff's interests are
so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed
that Congress intended to permit the suit.”
Clarke, 479 U.S. at 399; see also Rosebud Sioux
Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th
Cir. 2002). “Whether a plaintiff's interest is
‘arguably . . . protected . . . by the statute'
within the meaning of the zone-of-interests test is to be
determined not by reference to the overall purpose of the Act
in question . . . but by reference to the particular
provision of law upon which the plaintiff relies.”
Bennett, 520 U.S. at 175-76.
the DNR and JPA are within the zone of interests that
WRRDA-2014 protects. Numerous provisions of WRRDA-2014
require compliance with state law. See WRRDA-2014
§ 7002 (authorizing the Project to be carried out
“subject to the conditions described in the
respective reports”); Chief's Report at 7
(requiring compliance “with all applicable . . . State
laws and regulations”); 33 U.S.C. § 2232(b)(2)
(“Before carrying out a water resources development
project, or separable element thereof, under this section, a
non-Federal interest shall . . . obtain any permit or
approval required in connection with the project or separable
element under Federal or State law . . . .”). Requiring
state permits is evidence that when enacting WRRDA-2014,
Congress had more in mind that just making project funding
easier for non-Federal entities. In fact, by requiring state
permits, Congress reiterated its consistent view that flood
control projects relating to navigable waters must be
completed in “cooperation with States,
their political subdivisions, and localities
thereof.” See 33 U.S.C. § 701a
(emphasis added). Thus, the Court finds the DNR and JPA are
within the zone of interests meant to be protected by
provisions of WRRDA-2014 requiring compliance with state law,
and the Court will deny the Corps' motion to dismiss for
lack of prudential standing.
The Corps' Motion to Dismiss - 33 U.S.C. §
Corps next argues the Court should dismiss Count I in the
DNR's Complaint and part of Count IV in JPA's
Complaint for failing to state a claim upon which relief may
be granted. The Corps asserts that section 2232 does not
apply to the Project.
address the Corps' argument, the Court must interpret the
statute. The Court begins with the statute's plain
language. Leocal v. Ashcroft, 543 U.S. 1, 8 (2004).
“Courts resort to legislative history and other sources
to guide their interpretation only if the meaning of the
statute is ambiguous.” United States v. Plummer
Excavating, Inc., 65 F.Supp.2d 1013, 1015 (D. Minn.
Corps argues section 2232 does not apply because the section
only applies when non-Federal sponsors carry out a
“water resource development project”
independently. But nowhere in the language of the statute did
Congress express this limitation. Congress entitled section
2232 “Construction of water resources development
projects by non-Federal interests” and defined
“water resources development project” broadly, to
include “a project recommendation that results from . .
. a final feasibility study for water resources development
and conservation and other purposes that is specifically
authorized by Congress to be carried out by the
Secretary.” The parties do not dispute that this
definition describes the Project.
then expressly laid out the authority for a non-Federal
interest to “carry out a water resources development
project, or a separable element thereof” on the
condition that “[b]efore carrying
out” a project the non-Federal interest “obtain
any permit or approval
required in connection with the project or separable element
under Federal or State law.” 33 U.S.C. § 2232(b)
(emphasis added). Nowhere in section 2232 did Congress
provide that the authority to carry out a water resource
development project under section 2232 applies only when the
non-Federal interest carries out the project independently.
Consequently, what the Corps asks is not a construction of
the statute, but, in effect, a limitation on the
statute's applicability that Congress allegedly omitted
by inadvertence. King v. IRS, 688 F.2d 488, 491
(7th Cir. 1982) (“[C]ourts have no right, in
the guise of construction of an act, to either add words to
or eliminate words from the language used by congress.”
(quoting DeSoto Sec. Co. v. Comm'r, 235 F.2d
409, 411 (7thCir. 1956))). Supplying an omission,
as the Corps requests, “transcends the judicial
function, ” Nichols v. United States, 136
S.Ct. 1113, 1118 (2016) (quoting Iselin v. United
States, 270 U.S. 245, 251 (1926)), and the Court will
not add such a limitation here.
while located in the “Credit and Reimbursement”
subsection, Congress expressly requires the Corps to
“monitor and audit any water resources
development project, or separable element . . . constructed
by a non-Federal interest under this section to ensure that .
. . the construction is carried out in compliance with the
requirements of this section.” 33 U.S.C. §
2232(d)(4) (emphasis added).
forth above, the statute broadly defines the phrase
“water resources development project” to include
the Project at issue here. Id. § 2232(a)(3).
And numerous places in the statute use the phrase
“under this section” or similar language to refer
to all of section 2232. See, e.g., id.
§ 2232(a) (“In this section”); id.
§ 2232(b)(2) (“under this section”);
id. § 2232(d)(1), (4), (5) (“under this
section”); id. § 2232(e) (“under
this section”). Further, section 2232 particularly
identifies subsections when Congress deemed it necessary,
see, e.g., id. § 2232(c)
(“undertaken under subsection (b)”); id.
§ 2232(d)(1)(B) (“identified under
subsection(b)(1)(B)”); id. § 2232(d)(5)
(“under this subsection”), eliciting
Congress' cognizance of the difference between the word
“section” and “subsection.” Thus,
based on the plain language of the statute, the monitoring
requirement in section 2232(d)(4) includes a duty to monitor
projects carried out under the authority delineated in
Corps' own assertions during the process of approving the
Project - which were first disclosed in documents provided in
discovery after the hearing on this matter - appear to
support the Court's interpretation of section
2232. In a ...