Case: 16-40181 Document: 00513840771 Page: 1 Date Filed: 01/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40181 FILED
Summary Calendar January 19, 2017
Lyle W. Cayce
Clerk
GULF COAST ROD, REEL AND GUN CLUB, INCORPORATED;
GILCHRIST COMMUNITY ASSOCIATION,
Plaintiffs - Appellants
v.
UNITED STATES ARMY CORPS OF ENGINEERS; COLONEL
CHRISTOPHER W. SALLESE, in his official capacity as District Engineer,
Galveston District United States Army Corps of Engineers; LIEUTENANT
GENERAL THOMAS P. BOSTICK, in his official capacity as Commander
and Chief of Engineers, United States Army Corps of Engineers; JOHN M.
MCHUGH, in his official capacity as Secretary of the Army,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:13-CV-126
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
Case: 16-40181 Document: 00513840771 Page: 2 Date Filed: 01/19/2017
No. 16-40181
PER CURIAM:*
This case involves a challenge to the issuance of a Clean Water Act
(“CWA”) permit under the Administrative Procedure Act (“APA”). Appellants
oppose the decision by the U.S. Army Corps of Engineers (the “Corps”) to issue
a permit allowing Texas’s General Land Office (the “GLO”) to close Rollover
Pass, a man-made channel that connects East Bay and the Gulf of Mexico.
Appellants’ claims on appeal concern whether the permitting process fulfilled
the requirements of the National Environmental Policy Act (“NEPA”). After
the parties submitted dueling motions for summary judgment, the district
court granted summary judgment in favor of the Corps. We AFFIRM.
I. FACTUAL & PROCEDURAL HISTORY
Rollover Pass cuts through the Bolivar Peninsula and connects East Bay,
an extension of Galveston Bay, to the Gulf of Mexico. In 1955, Texas dug
Rollover Pass to allow fish and salt water from the Gulf of Mexico to more
easily enter the bay. Due to the large number of fish that pass through the
channel and its accessibility, Rollover Pass has become a popular destination
for fishers. For decades, however, studies have shown that the pass has caused
increased erosion along the peninsula. When Hurricane Ike devastated the
area in 2008, the Texas Legislature appropriated money to close the pass to
better protect the coast from erosion and environmental damage. The GLO
commissioned a study on the impact of closing Rollover Pass, and the Corps
adopted that study into their Environmental Assessment and Statement of
Findings (“EA”). The GLO received a CWA Section 404 permit from the Corps
to close Rollover Pass in 2012.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Two organizations challenged the Corps’ issuance of the permit under
the APA. 1 First is Gulf Coast Rod, Reel, and Gun Club, Inc., a recreational
organization that owns the land through which Rollover Pass was built.
Second is Gilchrist Community Association, a local civic group that helps
maintain the fishing facilities at Rollover Pass (collectively, “Appellants”).
Relevant to this appeal, the suit alleged that the Corps’ EA was deficient under
NEPA in two respects: (1) the EA failed to fully assess the cumulative impact
that closing Rollover Pass would have on the salinity 2 of East Bay, and (2) the
EA did not adequately consider alternatives to closing the pass. Appellants
sought to supplement the administrative record, and the district court allowed
in some of the additional documents but not all. The district court’s decision
to supplement the record is not on appeal.
Both sides filed motions for summary judgment. After considering the
cross-motions, the district court denied the Appellants’ motion and granted
summary judgment in favor of the Corps. This appeal followed.
II. STANDARD OF REVIEW
We “review[] a grant of summary judgment de novo, applying the same
standards as the district court.” Amrollah v. Napolitano, 710 F.3d 568, 570
(5th Cir. 2013). The standard governing the Corps’ issuance of a Section 404
permit is set forth in the APA. See City of Shoreacres v. Waterworth, 420 F.3d
440, 445 (5th Cir. 2005). Under the APA, the agency’s decision will be upheld
unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A); see also La. Crawfish Producers
Ass’n–W. v. Rowan, 463 F.3d 352, 355 (5th Cir. 2006). Federal Rule of Civil
Procedure 56 provides the standard for summary judgment, but it is well
1 Appellants also brought suit against the GLO and its commissioner but stipulated
to their dismissal from the suit prior to the district court’s final disposition of this case.
2 Salinity is the concentration of dissolved salt in a body of water.
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settled that on a motion for summary judgment concerning agency action, the
agency—not the court—is the fact finder. See, e.g., Girling Health Care, Inc.
v. Shalala, 85 F.3d 211, 215 & n.17 (5th Cir. 1996)(quoting 10A Charles Allen
Wright et al., Federal Practice and Procedure, § 2733 (2d ed. 1983)). Because
of the technical nature of an agency’s decision, “[w]e must look at the decision
not as a chemist, biologist, or statistician that we are qualified neither by
training nor experience to be, but as a reviewing court exercising our narrowly
defined duty of holding agencies to certain minimal standards of rationality.”
Gulf Restoration Network v. U.S. Dep’t of Transp., 452 F.3d 362, 368 (5th Cir.
2006) (quoting Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 905 (5th
Cir. 1983)). “This deferential standard of review applies regardless of whether
we are reviewing the Corps’ decision under the CWA or NEPA.” City of
Shoreacres, 420 F.3d at 445.
Appellants contend that the district court—relying on a district court
case, City of Shoreacres v. Waterworth—misapplied the summary judgment
standard because it considered the administrative record as a whole, without
reweighing evidence. See 332 F. Supp. 2d 992, 1004 (S.D. Tex. 2004) aff’d, 420
F.3d 440 (5th Cir. 2005). Appellants submit that the district court applied a
summary judgment standard that was too deferential. The case cited by the
district court echoes the principle that when reviewing agency action, the
court’s “mandate is not to ‘weigh the evidence pro and con but to determine
whether the agency decision was based on a consideration of relevant factors
and whether there was a clear error of judgment.’” Hayward v. U.S. Dep’t of
Labor, 536 F.3d 376, 380 (5th Cir. 2008)(quoting Delta Found, Inc. v. United
States, 303 F.3d 551, 562 (5th Cir. 2002)). Appellants “present[] no compelling
argument for changing this practice, [and] we decline the invitation to do so.”
Girling, 85 F.3d at 215.
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III. ANALYSIS
1. Cumulative Impact on Salinity Level 3
Appellants first allege that the Corps failed to properly consider the
cumulative impact that closing Rollover Pass would have on salinity levels.
They aver that better scientific models were available than those adopted by
the Corps. Instead of looking at multiseasonal averages of salinity, Appellants
insist the Corps should have considered daily changes, as the existing
TxBLEND model does. Further, the Corps allegedly failed to take into account
the new Needmore Diversion’s impact, which will channel freshwater from
Beaumont into East Bay upon completion. At bottom, Appellants believe these
shortcomings led the Corps to overestimate the salinity of East Bay after the
pass is closed, which could have negative impacts on aquatic species living in
the bay.
Ordinarily, before issuing a Section 404 permit, NEPA requires that the
Corps prepare an Environmental Impact Statement (“EIS”). However, an EA
may be prepared in order to determine whether the proposed action is
significant enough to warrant an EIS. 40 C.F.R. § 1501.4. If the EA concludes
with a Finding of No Significant Impact, then the Corps has no further
obligations under NEPA. Markle Interests, LLC v. U.S. Fish & Wildlife Serv.,
827 F.3d 452, 479 (5th Cir. 2016). The EA must assess the environmental
3We note that Appellants’ brief is devoid of any citation to the administrative record.
Instead, Appellants cite primarily to their Amended Complaint, which the district court
struck prior to the filing of summary judgment—a ruling that they do not appeal. Because
Appellants fail to cite to portions of the record that support their claims, this court could
conclude that Appellants have waived these issues. See Fed. R. App. P. 28(a)(8)(A); JTB
Tools & Oilfield Servs., LLC v. United States, 831 F.3d 597, 601 (5th Cir. 2016). Nonetheless,
we may consider such issues at our discretion. See United States v. Miranda, 248 F.3d 434,
443–44 (5th Cir. 2001). We address each issue raised in turn.
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impacts of a proposed action, including its cumulative impacts. 4 See La.
Crawfish Produces, 463 F.3d at 357–58; 40 C.F.R. § 1508.9. “Where conflicting
evidence is before the agency, the agency and not the reviewing court has the
discretion to accept or reject from the several sources of evidence.” Sabine
River Auth. v. U.S. Dep’t of the Interior, 951 F.2d 669, 678 (5th Cir. 1992). Here,
the Corps’ EA concluded that the closing of Rollover Pass did not create a
significant impact as defined by NEPA and that its salinity model was
sufficient. We agree.
With regard to the Corps’ decision to use seasonal—instead of daily—
averages of freshwater entering the bay, the Corps considered and rejected
using a daily model. It explained that the seasonal model “provided results not
subject to local anomalies and episodic events which would obscure the more
relevant trends with transient excursions.” Further, the seasonal models were
less expensive and time consuming to construct than a model using daily data.
The Corps’ model also took into account a significant amount of data that
spanned more than seventy years. Because the Corps’ choice of model was
reasoned and deliberate, we cannot say that it acted arbitrarily or capriciously.
See La. Crawfish Producers, 463 F.3d at 355.
Additionally, the Corps responded to concerns that the model failed to
account for certain freshwater inflows into the bay. The Corps acknowledged
this limitation, but it concluded that other freshwater sources would not have
a significant impact on the study. This is because the freshwater sources
already included make up the vast majority of all freshwater flowing into the
bay. For instance, the Trinity River alone accounts for sixty to seventy percent
4 See 40 C.F.R. § 1508.7 (defining cumulative impact as “the impact on the
environment which results from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions regardless of what agency . . . or
person undertakes such other actions. Cumulative impacts can result from individually
minor but collectively significant actions taking place over a period of time”).
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of all freshwater entering the system. However, in response to public
comments, the study expanded the area that was modeled to more accurately
assess the salinity level. Even after taking into account this larger area, the
Corps still concluded that salinity would remain within an acceptable range.
Concerning the Needmore Diversion specifically, the Corps chose not to
account for it because it “is not expected to have any appreciable impact on []
salinity.” The Corps explained that the diversion will only operate
“intermittently” and “during times of regionally heavy rainfall.” Since the
diversion would only operate during periods of heavy rainfall, all other
freshwater inflows would increase too, so the model already accounts for these
short periods of reduced salinity.
As the district court noted, even though the model proposed by
Appellants “may well be better, the Corps has provided reasoned justifications
for why it chose its model[,] and it did . . . consider freshwater inflows.” See
Sabine River Auth., 951 F.2d at 678 (stating that the agency has discretion
when choosing from sources of evidence). The Corps’ extensive consideration of
the cumulative impact closing the pass could have on East Bay’s salinity
convinces us that the agency’s action was not arbitrary or capricious. See La.
Crawfish Producers, 463 F.3d at 355.
2. Practicable Alternatives
Appellants additionally claim that the district court erred when it held
that the Corps adequately considered alternatives to closing Rollover Pass.
NEPA requires that proposals “affecting the quality of the human
environment” contain a detailed statement of “alternatives to the proposed
action.” 42 U.S.C. § 4332(C)(iii). Regulations make it clear that this
requirement applies to an EA. 40 C.F.R. § 1508.9(b). “An alternative is
practicable if it is available and capable of being done after taking into
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consideration cost, existing technology, and logistics in light of overall project
purposes.” Id. § 230.10(a)(2).
The purposes for the project must not be so narrow that they foreclose
the consideration of reasonable alternatives. See Sierra Club v. Fed. Highway
Admin., 435 F. App’x 368, 374 (5th Cir. 2011). Here, the Corps condensed the
project purposes into four objectives that any alternative must also meet: (1)
present a long-term solution for beach erosion in the area of Rollover Pass; (2)
eliminate sediment transport into East Bay and Rollover Bay; (3) return the
area to its more natural salinity regime; and (4) effectively stabilize the fill
material, minimize water quality impacts, minimize impacts to existing
bridges and utilities, and use compatible fill materials. 5
Appellants focus on two alternatives they allege were not considered in
the Corps’ analysis: (1) the construction of jetties and (2) the construction of a
gate at the mouth of Rollover Pass. The Corps considered and rejected six
alternatives to closing Rollover Pass, including one no-action alternative. In
each case, the Corps found that at least one of the stated purposes of the project
would not be met.
The Corps explained that it did not consider the use of jetties as an
alternative because the GLO had considered—and rejected—the use of jetties
5 Appellants argued before the district court that the Corps had “define[d] the
objectives of its action in terms so unreasonably narrow that only one alternative . . . would
accomplish the goals of the agency’s action.” Sierra Club, 435 F. App’x at 374 (quotation
omitted). Aside from a couple of unbriefed, summary allegations, Appellants do not appear
to raise this issue on appeal. And even these unbriefed allegations are equivocal as to
whether Appellants are seeking review of this issue. Appellants do not urge us to reconsider
the breadth of the stated goals, nor do they point us to any authority for the proposition that
these goals were impermissibly restrictive. Issues not adequately briefed are waived. See
United States v. Elashyi, 554 F.3d 480, 494 n.6 (5th Cir. 2008). In any event, we consider the
district court’s analysis of these goals thorough and agree that “[n]othing in the record
suggests that [these objectives were] artificially narrowed in order to defeat potential
alternatives.”
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prior to its application for a Section 404 permit. The Corps agreed with the
GLO’s conclusion that “jetties would have built up sand on one side and starved
the other side of sand; shunting the excess sand into offshore waters and away
from the beach.” This court has upheld as adequate a consideration of
alternatives that were proposed but rejected at a preliminary stage, even when
reviewing the more rigorous EIS. See Miss. River Basin Alliance v. Westphal,
230 F.3d 170, 177 (5th Cir. 2000).
The other alternative suggested by Appellants is constructing a gate at
the mouth of Rollover Pass. It is not clear that this alternative was ever
proposed to the Corps. Indeed, Appellants concede that “[m]aybe no one put
this simple proposition to the Corps during permit review.” Parties
challenging compliance with NEPA must structure their participation to alert
the agency to their position in order “to allow the agency to give the issue
meaningful consideration,” unless a flaw is so obvious that there is no need to
point out the shortcoming. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764–
765 (2004). Regardless, Appellants did not raise the possibility of constructing
a gate before the district court, so we need not consider it. See Hardman v.
Colvin, 820 F.3d 142, 152 (5th Cir. 2016)(stating that when reviewing a grant
of summary judgment, we generally do not review matters not presented to the
district court). Additionally, we note that the construction of a gate is similar
to the modification of an existing weir, 6 which the Corps rejected because it
“would not prevent sedimentation from entering the pass,” and it “would not
result in [the] desired lowering of salinity or improvement of water quality.”
“Although the relevant regulation does mandate the discussion of
alternatives, the regulation does not require that all proposed alternatives, no
matter their merit, be discussed in the EA.” La. Crawfish Producers, 463 F.3d
6 A low dam built to regulate the level and flow of water.
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at 356 (citing 40 C.F.R. § 1508.9(b)). The Corps considered and rejected a
number of alternatives to closing Rollover Pass. Thus, we conclude that its
decision to issue a permit for closing the pass was not arbitrary or capricious.
See La. Crawfish Producers, 463 F.3d at 355.
IV. CONCLUSION
The district court’s grant of summary judgment in favor of the Corps is
AFFIRMED.
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