Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers

United States Court of Appeals,

Eleventh Circuit.

No. 96-8094.

PRESERVE ENDANGERED AREAS OF COBB'S HISTORY, INC., Roger Peaster,
Heidi Peaster, Johnny Plunkett, Bury Plunkett, John Mowell and
Marie Mowell, Plaintiffs-Appellants,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, Togo D. West, Secretary of
the Army, Wayne M. Boy, Colonel, District Engineer, Savannah
District Corps of Engineers, Necholus Ogden, Chief, Regulatory
Branch, Savannah District Corps of Engineers, United States
Environmental Protection Agency, Carol M. Browner, Administrator,
John H. Hankinson, Regional Administrator, and Cobb County,
Georgia, Defendants-Appellees.

July 11, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:95-CV-1394-WCO), William C. O'Kelley,
Judge.

Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit
Judges.

FAY, Senior Circuit Judge:

The plaintiffs in this action challenged a proposed highway

construction project in Cobb County, Georgia. They alleged

violations of the Clean Water Act, the National Environmental

Policy Act, the Endangered Species Act, and the National Historic

Preservation Act. In extremely well-reasoned orders, the District

Court dismissed certain claims and granted the defendants summary

judgment on all the remaining claims. We affirm.

I. BACKGROUND

Preserve Endangered Areas of Cobb's History, Inc. (P.E.A.C.H.)

and various individuals brought suit to prevent the construction of

*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
a 4.75 mile highway in Cobb County Georgia. The highway would run

through a Historic District in Cobb County and would impact

approximately 3.77 acres of wetlands. The County developed a

mitigation plan in order to minimize the possible harmful effects

of the highway. The plan included the preservation of 19.7 acres

of existing wetlands and the restoration of at least 7.8 acres of

previously cleared and drained floodplain or wetland area. Cobb

County also executed a Memorandum of Agreement on Historic

Preservation in order to mitigate the effects on the historic

character of the region. The Agreement requires the county to take

specific measures. These measures involve limiting access to the

road from the historic district, bridging certain roads to minimize

the adverse impact on historic properties, aesthetic signage

restrictions, site stabilization, archeological data recovery, the

stabilization of the Woolen Mills historic structure, and a 70 acre

historic heritage park that should minimize future development in

and near the historic district.

In April of 1995 the Army Corps of Engineers issued a permit

under Section 404 of the Clean Water Act (33 U.S.C. 1344(a)) to

Cobb County, authorizing it to impact the 3.77 acres of wetlands.

The permit was conditioned on compliance with the Memorandum of

Agreement on Historic Preservation and the wetland mitigation plan.

Also in April 1995, the Army Corps District Engineer issued an

environmental assessment for the project. The assessment included

a finding of no significant impact and concluded that an

Environmental Impact Statement would not be required.

The plaintiffs filed suit against Cobb County, the Army Corps
of Engineers, and the Environmental Protection Agency. The

plaintiffs alleged that the defendants violated the Clean Water Act

(33 U.S.C. §§ 1251 et seq.), the National Environmental Policy Act

(42 U.S.C. §§ 4321 et seq.), the Endangered Species Act (16 U.S.C.

§§ 1531 et seq.), and the National Historic Preservation Act (16

U.S.C. § 470).

The District Court entered a protective order prohibiting the

plaintiffs from engaging in any discovery and limiting the court's

review to the administrative record. The District Court granted

the defendants' motions to dismiss the claims brought under the

citizen suit provisions of the Clean Water Act, ruling that neither

the EPA nor the Army Corps of Engineers was subject to suit in this

case. Based on the administrative record, the District Court

granted the defendants' motions for summary judgment. The

plaintiffs appealed.

II. STANDARD OF REVIEW

The District Court's entry of a protective order must be

reviewed for abuse of discretion. See Washington v. Brown &

Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir.1992).

The court's dismissal of the claims under the citizen suit

provisions of the Clean Water Act presents a legal issue, as does

the decision to limit review to the administrative record. We

review questions of law de novo. See Bechtel Const. Co. v.

Secretary of Labor, 50 F.3d 926, 931 (11th Cir.1995).

The District Court's order of summary judgment must also be

reviewed de novo. Great Lakes Dredge & Dock Co. v. Tanker, 957

F.2d 1575, 1578 (11th Cir.), cert. denied, 506 U.S. 981, 113 S.Ct.
484, 121 L.Ed.2d 388 (1992). Summary judgment is proper if the

pleadings, depositions, and affidavits show that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Celotex Corporation v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986). The evidence must be viewed in the light most favorable to

the non-moving party. Augusta Iron and Steel Works, Inc. v.

Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.1988).

However, even in the context of summary judgment, an agency action

is entitled to great deference. Under the Administrative Procedure

Act, a court shall set aside an action of an administrative agency

where it is arbitrary, capricious, or an abuse of discretion. 5

U.S.C. § 706(2)(A). The court shall not substitute its judgment

for that of the agency. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136

(1971).

III. ANALYSIS

A. The District Court did not err when it confined its review to
the administrative record and prohibited all discovery.

The focal point for judicial review of an administrative

agency's action should be the administrative record. Camp v.

Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106

(1973). The role of the court is not to conduct its own

investigation and substitute its own judgment for the

administrative agency's decision. Volpe, 401 U.S. at 416, 91 S.Ct.

at 823-24. Rather, the "task of the reviewing court is to apply

the appropriate ... standard of review ... to the agency decision

based on the record the agency presents to the reviewing court."
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105

S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985).

If the record before the agency does not support the agency
action, if the agency has not considered all relevant factors,
or if the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record before it,
the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.
The reviewing court is not generally empowered to conduct a de
novo inquiry into the matter being reviewed and to reach its
own conclusions based on such an inquiry.... The factfinding
capacity of the district court is thus typically
unnecessary.... [The court is] to decide, on the basis of the
record the agency provides, whether the action passes muster
under the appropriate APA standard of review.

Id. at 744, 105 S.Ct. at 1607.

Thus while certain circumstances may justify going beyond the

administrative record,1 a court conducting a judicial review is not

"generally empowered" to do so. In the instant case, we find

nothing that would necessitate expanding the court's review beyond

the administrative record.2 The record itself adequately explains

1
The Ninth Circuit has specified that a court may go beyond
the administrative record only where: 1) an agency's failure to
explain its action effectively frustrates judicial review; 2) it
appears that the agency relied on materials not included in the
record; 3) technical terms or complex subjects need to be
explained; or 4) there is a strong showing of agency bad faith
or improper behavior. Animal Defense Council v. Hodel, 840 F.2d
1432, 1436-37 (9th Cir.1988). We need not consider these
exceptions as none of them apply in the instant case.
2
We find no merit in the plaintiffs' contention that there
is a dispute as to what actually constitutes the administrative
record. According to the plaintiffs, two administrative records
were produced by the Corps in this case, and the latter one may
have been improperly manufactured. However, only one official,
complete administrative record was compiled by the Corps and
filed with the court. There is, of course, nothing wrong with an
agency compiling and organizing the complete administrative
record after litigation has begun from all the files of agency
staff involved in the agency action, as long as that record only
contains documents considered by the staff prior to the agency
action.
the agency's decision and shows that it weighed the relevant

factors.3 The District Court did not err in limiting its review to

the administrative record and so did not abuse its discretion by

granting a protective order prohibiting any discovery.

B. The District Court did not err in granting summary judgment.

Under the Administrative Procedure Act, a court shall set

aside an action of an administrative agency only where it is

arbitrary, capricious, or an abuse of discretion. 5 U.S.C. §

706(2)(A). The court shall not substitute its judgment for that of

the agency. Volpe, 401 U.S. at 416, 91 S.Ct. at 823-24.

Plaintiffs contend that the Army Corps acted arbitrarily and

capriciously when it: 1) concluded that the project was not

unlawfully segmented, 2) issued a Finding of No Significant Impact

and so did not prepare an Environmental Impact Statement, and 3)

issued a Section 404 permit.

i. The Army Corps of Engineers was not arbitrary and capricious in
finding that the project was not unlawfully segmented.

The plaintiffs contend that the defendants unlawfully avoided

the legal requirement to prepare an Environmental Impact Statement

for all major federal actions by analyzing this project alone, and

not with the other related projects in Cobb County. It is true

that the Corps cannot "evade [its] responsibilities" under the

National Environmental Policy Act by "artificially dividing a major

federal action into smaller components, each without a

"significant' impact." Coalition on Sensible Transportation, Inc.

v. Dole, 826 F.2d 60, 68 (D.C.Cir.1987). However, just because the

3
The content of the administrative record is discussed
further in the next section.
project at issue connects existing highways does not mean that it

must be considered as part of a larger highway project; all roads

must begin and end somewhere. Village of Los Ranchos de

Albuquerque v. Barnhart, 906 F.2d 1477, 1483-84 (10th Cir.1990),

cert. denied, 498 U.S. 1109, 111 S.Ct. 1017, 112 L.Ed.2d 1099

(1991).

Under Federal Highway Administration guidelines, in order to

be regarded as a stand-alone project, the road must:

1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;

2) Have independent utility or independent significance, i.e.,
be usable and be a reasonable expenditure even if no
additional transportation improvements in the area are made;
and

3) Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.

23 C.F.R. § 771.111(f).

The Corps analyzed each of these factors. The road's eastern

and western termini are both completed, busy, north-south arterial

roads. The Corps concluded that these were logical termini.

Moreover, the Corps concluded that the scope of the analysis of the

proposed road would not restrict consideration of alternatives.

This conclusion was based on a review of the Minutes of the Board

of Commissioners for Cobb County, the county transportation

studies, maps showing the county's transportation plans, and

transportation studies conducted by the county.

However, the "independent utility" factor is by far the most

important. "Apparently an inquiry into independent utility reveals

whether the project is indeed a separate project, justifying the

consideration of the environmental effects of that project alone."
Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 440

(5th Cir.1981);4 see also Dole, 826 F.2d at 69 (holding that the

"logical terminus" criterion is extremely hard to analyze where a

proposed road runs within a single metropolitan area as opposed to

running between two cities).

In the instant case, the Corps was not arbitrary and

capricious when it determined that the project had independent

utility. The Corps required Cobb County to show that the project

had independent utility. The county defended the independent

utility of the project and supported its position with over fifty

exhibits. The new road will take residents of the western part of

the county to the commercial activity in the eastern part of the

county. According to the county, the highway would be fully

operational even if no other roads were built. Some of the

east-west roads in the vicinity are already operating at

unacceptable levels of service, and the daily traffic volume for

most of the roadway systems is expected to at least double by 2010.

Based on this information, the Corps found that the road would

provide independent utility as a means of transportation from the

western residential part of the county to the commercial and

employment activities in the east.

The District Court was correct in finding that there are no

genuine issues of material fact in this regard, and that the

defendants are entitled to judgment as a matter of law: the Army

4
The Eleventh Circuit has adopted as binding precedent all
decisions of the former Fifth Circuit decided prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc).
Corps of Engineers did not act arbitrarily and capriciously when it

analyzed the highway as a stand-alone project.

ii. The Army Corps was not arbitrary and capricious in determining
that no Environmental Impact Statement was required.

The Corps must prepare an Environmental Impact statement for

"major Federal actions significantly affecting the quality of the

human environment." 42 U.S.C. § 4332(2)(C). In this case, the

Corps concluded that the approval of the project and issuance of a

Section 404 permit did not constitute a major federal action.

Whether a federal action is "major" or not depends on the

significance of the impact on the human environment; "[m]ajor

reinforces but does not have a meaning independent of

significantly." 40 C.F.R. § 1508.18.

The Corps did consider the project's possible impact on

federally protected wetlands:

The proposed project would impact 3.8 acres of wetlands. The
county will undertake a number of control measures to minimize
the impacts to wetlands. Cobb County has purchased a tract of
land ... for a proposed park. [The county's mitigation plan]
identifies 19.7 acres of wetlands to be preserved within Cobb
County landholdings. Cobb County also proposed to restore a
minimum of 7.8 acres of previously cleared and drained
floodplain/wetland area.

Based on this information, the Corps found no significant impact in

regard to wetlands, and that an Environmental Impact Statement was

not needed in that regard. Although the plaintiffs disagree with

the conclusion of the Corps, they can point to nothing that would

make the Corps decision arbitrary and capricious. The Corps

considered the impact on the wetlands, considered the county's

mitigation plan, and reasonably concluded that the impact on

wetlands would not be significant.
 The plaintiffs also argue that the Corps was obligated to

prepare an Environmental Impact Statement because of the project's

effect on the historic district. The Corps did identify an adverse

impact on the historic district. However, the Corps also

considered the county's mitigation plan, and made the Section 404

permit contingent on that plan.

The plan requires the county to take specific measures to

mitigate possible impacts on the historic nature of the area.

These measures involve limiting access to the road from the

historic district, bridging certain roads to minimize the adverse

impact on historic properties, aesthetic signage restrictions, site

stabilization, archeological data recovery, the stabilization of

the Woolen Mills historic structure, and a historic heritage park

that should minimize future development in and near the historic

district.

Again, the conclusion of the Corps that the project would not

significantly affect the historic environment was not arbitrary and

capricious. The plaintiffs may disagree with that conclusion, but

the Corps considered their arguments, considered the effects on the

district, and considered the county's mitigation plan. The

conclusion was based on those considerations.

iii. The Army Corps was not arbitrary and capricious in issuing a
Section 404 permit.

The plaintiffs argue that the Corps acted arbitrarily and

capriciously when it granted the Section 404 permit because the

project was unlawfully segmented and because the Corps was required

to issue an Environmental Impact Statement. Because the Corps did

not act arbitrarily and capriciously when it 1) analyzed the road
as a stand-alone project, and 2) did not prepare an Environmental

Impact Statement, it did not act arbitrarily and capriciously when

it issued a Section 404 permit.

C. The District Court did not err in dismissing the claims brought
under the citizen suit provision of the Clean Water Act.

Under the Clean Water Act, 33 U.S.C. § 1344, the Army Corps of

Engineers is authorized to regulate the discharge of dredged or

fill material into U.S. waters, including wetlands. The actions of

the Corps must be based on EPA guidelines, and the Administrator of

the EPA may overrule certain decisions of the Corps. Under 33

U.S.C. § 1365(a)(2), a citizen can sue the Administrator "where

there is alleged a failure of the Administrator to perform any act

or duty under this chapter which is not discretionary ..."

The United States must expressly and unambiguously waive its

sovereign immunity before it can be sued. See United States v.

Idaho ex rel. Director, Idaho Dept. Of Water Resources, 508 U.S. 1,

6, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993). Any statutory

provisions allowing suits against the United States must be

construed strictly. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-

86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983).

Section (a)(2) of the citizen suit provision of the Clean

Water Act does not clearly and ambiguously waive sovereign immunity

in regard to the Army Corps of Engineers. The statute states that

a citizen can sue "where there is alleged a failure of the

Administrator to perform any act or duty under this chapter which

is not discretionary ..." 33 U.S.C. § 1365(a)(2). It does not

refer to the Army Corps of Engineers. We must conclude that

Congress did not intend to waive sovereign immunity in regard to
suits against the Army Corps of Engineers under the Clean Water

Act.5
The Clean Water Act does allow suits against the

Administrator of the EPA where there is alleged a "failure of the

Administrator to perform any act or duty under this chapter which

is not discretionary ..." However, the decision of the

Administrator not to overrule the decision of the Army Corps is

discretionary. The Administrator is "authorized to prohibit" and

"authorized to deny or restrict the use of any defined area for

specification." 33 U.S.C. § 1344(c). Thus the Administrator has

the authority to overrule the Corps. The EPA views this authority

as discretionary. In regulations adopted pursuant to the statute,

the Regional Administrator "may" initiate certain actions if he

believes that an "unacceptable adverse effect" could result. 40

C.F.R. § 231.3(a). We agree with the EPA that this power is

discretionary. By statute, the Administrator is authorized rather

than mandated to overrule the Corps. 33 U.S.C. § 1344(c). Because

this power is discretionary, the citizen suit provision of the

Clean Water Act does not apply.

The plaintiffs argue that this interpretation of the statute

renders the citizen suit provision of the Clean Water Act

5
In National Wildlife Federation v. Hanson, 859 F.2d 313
(4th Cir.1988), the Fourth Circuit held that a suit against the
Corps under 33 U.S.C. § 1365(a)(2) was valid because the Corps'
duty is nondiscretionary, and the EPA Administrator is ultimately
responsible for the protection of wetlands. According to the
Fourth Circuit, "Congress cannot have intended to allow citizens
to challenge erroneous wetlands determinations when the EPA
Administrator makes them but to prohibit such challenges when the
Corps makes the determination and the EPA fails to exert its
authority over the Corps' determination." Hanson, 859 F.2d at
316. We most respectfully disagree.
meaningless for Section 404 permit decisions; in a case such as

this, neither the Corps nor the Administrator can be sued under the

Clean Water Act. However, the Supreme Court has stressed that a

court's role in interpreting a statute is limited: "We have stated

time and again that courts must presume that a legislature says in

a statute what it means and means in a statute what it says there."

Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112

S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992).

IV. CONCLUSION

We conclude that the District Court applied the correct rules

of law and the appropriate standards when it limited its review to

the administrative record, when it granted summary judgment, and

when it dismissed the claims based on the citizen suit provision of

the Clean Water Act. The judgment is AFFIRMED.