United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 29, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 05-30956
____________
LOUISIANA CRAWFISH PRODUCERS ASSOCIATION - WEST,
Plaintiff - Appellant,
versus
PETER J ROWAN, Colonel; UNITED STATES ARMY CORPS OF
ENGINEERS, New Orleans District; FRANCIS J HARVEY,
Secretary of the US Department of the Army in his official capacity as
Secretary of the Army,
Defendants - Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Louisiana Crawfish Producers Association (“LCPA”) appeals the district court’s grant of
summary judgment to the United States Army Corps of Engineers (“the Corps”) on claims arising
from LCPA’s challenge under the National Environmental Policy Act (“NEPA”) to the Corps’s
Environmental Assessment (“EA”) of a section of the Atchafalaya Basin.1
I
The Atchafalaya Basin is a flood control area in Louisiana, draining approximately 41 percent
of the continental United States. In 1982, the Corps issued a Final Environmental Impact Statement
(“FEIS”) for the entire Basin. The overall goal of this FEIS was to ensure passage of water through
the system, while restoring and maintaining the historical overflow conditions of the Basin. The FEIS
divided the Basin into thirteen separate Management Units. Buffalo Cove, the subject of this
litigation and one of the Management Units, was designated as a Pilot Management Unit, wherein
experimentation could take place to develop techniques to maintain the water flow and restore the
ecosystem. A series of pipelines run across Buffalo Cove, creating spoilbanks that capture and
convey water and sediment and reduce the north-south flow. These spoilbanks also restrict public
access.
From 1999 to 2003 the Corps conducted an EA on the Buffalo Cove Management Unit. The
goal of the project, as described in the EA, was “to improve interior circulation within the swamp;
remove barriers to facilitate north to south flow; provide input of oxygenated, low temperature river
water; and prevent or manage sediment input into the interior swamps.” These objectives would be
accomplished through “a series of closures and sediment traps (to prevent sediment influx),
constructed inputs for river water, and gaps placed in existing embankments.” The Corps made the
1
The LCPA filed its Notice of Appeal on July 28, 2005, which was after the district
court’s grant of summary judgment on June 16, 2005 but prior to the entry of the written order on
August 31, 2005. Under Rule 4(a)(2), “[a] notice of appeal filed after the court announces a decision
or order))but before the entry of the judgment or order))is treated as filed on the date of and after
the entry.” FED. R. APP. P. 4(a)(2). Therefore the premature filing of the Notice of Appeal is not
fatal to our jurisdiction. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269,
276 (1991); Am. Totalisator v. Fair Grounds Corp., 3 F.3d 810, 812-13 (5th Cir. 1993).
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project available for public review and comment on July 25, 2003. Out of one hundred thirty-four
comments, thirty-two opposed the EA. On March 15, 2004, a Finding of No Significant Impact
(“FONSI”) was entered.
The LCPA is a not-for-profit organization of commercial crawfishermen. During the notice
and comment period, the LCPA suggested as an alternative plan for Buffalo Cove that the Corps both
open up the historical bayous and enforce the permit requirements for pipelines. This alternative was
not addressed in the EA. The LCPA then brought suit in the district court, seeking an injunction of
the project, arguing that the Corps had disregarded its suggested alternative and that the FONSI was
in error. The Corps moved for summary judgment. The district court issued its ruling from the
bench, granting summary judgment to the Corps and denying the LCPA’s motion for summary
judgment. The LCPA now appeals.
We review a grant of summary judgment de novo, applying the same standard as the district
court. City of Shoreacres v. Waterworth, 420 F.3d 440, 445 (5th Cir. 2005). “NEPA-related
decisions are accorded a considerable degree of deference . . . [and] courts are to uphold the agency’s
decision unless the decision is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Spiller v. White, 352 F.3d 235, 240 (5th Cir. 2003); 5 U.S.C. § 706(2)(A).
“Under this highly deferential standard of review, a reviewing court has the least latitude in finding
grounds for reversal.” Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669, 678 (5th Cir.
1992) (citation omitted).
Our task is thus to determine whether the agency “adequately considered the values set forth
in NEPA and the potential environmental effects of the project before reaching a decision on whether
an environmental impact statement was necessary.” Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th
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Cir. 1981). The agency, and not the court, has the discretion to choose from among sources of
evidence, and an agency may rely on its own experts, so long as they are qualified and express a
reasonable opinion. Sabine River Auth., 951 F.2d at 678.
II
NEPA requires “all agencies of the Federal Government . . . [to] include [an EIS] in every
recommendation or report on proposals for . . . major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(2). An EIS is not necessary when the federal
action is not major or does not have a “significant impact on the environment.” Sabine River Auth.,
951 F.2d at 677. To determine whether an EIS is necessary, an agency will perform an EA. Sierra
Club v. Espy, 38 F.3d 792, 802 (5th Cir. 1994); 40 C.F.R. § 1508.9(a)(1) (defining an EA as a
“concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining
whether to prepare an environmental impact statement or a finding of no significant impact”). An EA
is “a rough cut, low-budget environmental impact statement designed to show whether a full-fledged
environmental impact statement))which is very costly and time-consuming to prepare and has been
the kiss of death to many a federal project))is necessary.” Sabine River Auth., 951 F.2d at 677
(citation omitted). Thus, an EA will result in a finding that an EIS is necessary or in a FONSI,
indicating that no further study of the environmental impact of the project is necessary. Id.
The Corps’s EA for Buffalo Cove discussed three alternatives: a no-action plan, the original
plan articulated in the 1982 EIS, and the plan ultimately adopted. During the record and comment
period, the LCPA proposed an alternative to the proposed program, which focused on the reopening
of historic bayous and the enforcement of the permits governing the laying down of pipelines through
the areas. This alternative was never discussed in the final EA. On appeal, the LCPA argues that a
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discussion and rejection of any reasonable alternative must be included in the EA and that because
its proposed plan was reasonable, it should have been included in the Buffalo Cove EA. The Corps
counters that this proposal was unreasonable and inconsistent with the goals of the Buffalo Cove
project. Specifically, the Corps states that the proposal by the LCPA is both impracticable and would
result in increased sedimentation, as opposed to the reduction in sedimentation intended by the
project.
The LCPA has provided no caselaw that supports its contention that the Corps was required
to consider and reject its proposed alternative in the EA.2 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. See 40 C.F.R. § 1508.9(b) (stating that an EA “[s]hall
include brief discussions of the need for the proposal, of alternatives . . ., of the environmental
impacts of the proposed action and alternatives, and a listing of agencies and persons consulted”).
We have explained that “the range of alternatives that the [agency] must consider decreases as the
environmental impact of the proposed action becomes less and less substantial.” Sierra Club, 38 F.3d
at 803; see also Highway J Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir. 2003) (“When . . .
an agency makes an informed decision that the environmental impact will be small . . . a less extensive
2
LCPA points to Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800
(9th Cir. 1999), noting that in that case, the Ninth Circuit held that by considering only a no-action
alternative along with two “virtually identical alternatives,” the agency had failed to consider a
reasonable range of alternatives. Id. at 813. In Seacoast Anti-Pollution League v. Nuclear
Regulatory Comm’n, 598 F.2d 1221, 1230-31 (1st Cir. 1979), the court rejected an EIS that ignored
an entire group of alternatives. Finally, in Sierra Club v. Watkins, 808 F.Supp. 852 (D.D.C. 1991),
the district court determined that the EA did not adequately consider alternatives. Id. at 873. In these
cases, however, the courts focused on the failure of the agency to consider an entire range of options
without adequate explanation. These cases do not stand for the proposition that all proposed
alternatives must be included in the final EA.
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search [for alternatives] is required.”). Furthermore, in the context of an EIS, we have made clear
that “[s]ome reasonable limit to discussion of alternatives must be set.” Citizens for Mass Transit,
Inc. v. Adams, 630 F.2d 309, 318 (5th Cir. 1980).
In Mississippi River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir. 2000), the court
affirmed a grant of summary judgment to the Corps, holding that the Corps had adequately
considered a range of alternatives and had not been arbitrary and capricious in rejecting the plaintiff’s
proposal at a preliminary stage. Id. at 177. We held that the rejection of alternatives, “even those
that could be considered to be viable and reasonable alternatives, after an appropriate evaluation” was
not arbitrary and capricious. Id. Although this case arose in the context of an EIS, where the burden
on the agency to consider reasonable alternatives is much heavier, the analysis is instructive. The
court noted that the Corps had articulated reasons why the proposal was rejected in the early stages
of analysis. Id. (reciting the reasons given by the Corps for rejecting the proposed alternative).
Similarly, here, the Corps has briefed why the proposal was not accepted. The Corps explains that
reopening the waterways suggested by the LCPA would result in “counterproductive sedimentation.”
The Corps notes further that the high water levels in the entire Atchafalaya River and Basin have
changed, and therefore simply reopening historical bayous, without reverting back to the same
historic high water levels, will result in excessive sedimentation. The administrative record also
contains internal comments made on the letter proposal sent by the LCPA. Those comments indicate
that the choice of where to introduce additional water flow into the Cove was carefully considered
and that the Corps was concerned about the ability of the natural bayous to “scour [themselves].”
Therefore, we hold that the Corps was not arbitrary and capricious in choosing to reject the
LCPA’s proposed alternative.
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III
The LCPA argues that the Finding of No Significant Impact was arbitrary and capricious. The
LCPA asserts that the EA fails to take into account the cumulative impact of the Buffalo Cove project
on the surrounding areas. The LCPA also argues that the EA is tiered to an out-of-date EIS, and also
more generally that the Corps’s proposal will result in “significant” effects to Buffalo Cove.
A
Cumulative impact is defined 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. . . .” 40 C.F.R. § 1508.7. We have explained:
[A] meaningful cumulative-effects study must identify: (1) the area in which effects
of the proposed project will be felt; (2) the impacts that are expected in that area from
the proposed project; (3) other actions))past, proposed, and reasonably
foreseeable))that have had or are expected to have impacts in the same area; (4) the
impacts or expected impacts from these other actions; and (5) the overall impact that
can be expected if the individual impacts are allowed to accumulate.”
Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985), overruled on other grounds by Sabine
River Auth., 951 F.2d at 677.
In this case, the EA contained a lengthy discussion of the cumulative impacts of the project.
The EA discussed past actions, including the effects of hurricane and floods, as well as the import of
flood control measures and further construction in the area. As to present and planned actions, the
cumulative impacts portion of the EA discussed tandem efforts undertaken in areas where the Corps
cannot construct its own projects, as well as the effect of planned excavation and fill placement. This
discussion adequately addresses the cumulative impact of the proposed action.
Contrary to the assertions of the LCPA, it is not fatal to the decision of the Corps that the
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cumulative impact statement does not take into account future projects within the Atchafalaya Basin.
The language of the relevant regulation limits the consideration of future actions to those that are
“reasonably foreseeable.” 40 C.F.R. § 1508.7 (emphasis added). We have defined this as
“sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching
a decision.” City of Shoreacres, 420 F.3d at 453. In City of Shoreacres, we determined that the
Corps was not arbitrary and capricious when it did not consider the possible effects of a future plan
to dredge and deepen a shipping channel. Id. at 453. The court reasoned that such a plan was too
speculative and any plan to do so would take years to put into effect. Id. Similarly, in this case, the
Buffalo Cove project is a pilot project, and thus, future projects in the Atchafalaya Basin have yet to
be developed. The LCPA has not offered any evidence that these projects have indeed been
formulated to the extent that their effects can be measured in the current EA. See City of Shoreacres,
420 F.3d at 453-54 (discussing the appellant’s lack of “concrete analysis with respect to the
likelihood” of future projects). Therefore, the cumulative impacts discussion in the EA is not
inadequate and does not undermine the FONSI.
B
The LCPA then argues that the current EA is tiered to an out-of-date EIS.3 An EIS must be
supplemented if either there are “substantial changes” made to the proposed action or there are
“significant new circumstances or information.” 40 C.F.R. § 1502.9(c)(1)(i)-(ii). We have clearly
stated that it is not necessary for “the Corps [to] update an EIS when portions of it become out-of
3
“[A]n EA may be tiered to an existing and broader EIS. 40 C.F.R. § 1508.28.
‘Tiering refers to the coverage of general matters in broader environmental impact statements . . .
with subsequent narrower statements or environmental analyses . . . incorporating by reference the
general discussions and concentrating solely on the issues specific to the statement subsequently
prepared.’” Sierra Club, 38 F.3d at 796. The EA at issue in this case is tiered to the 1982 EIS.
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date.” Coker v. Skidmore, 941 F.2d 1306, 1310 (5th Cir. 1991) (citing Sierra Club v. U.S. Army
Corps of Engineers, 701 F.2d 1011, 1036 (2d Cir. 1983) (“mere passage of time rarely warrants an
order to update the information to be considered by the agency”)). Therefore, this challenge to the
FONSI must fail.
C
Finally, the LCPA argues that the record indicates that the Buffalo Cove project will result
in significant environmental impacts. The “significance” of the impact takes into account both
“context” and “intensity.” See 40 C.F.R. § 1508.27. The LCPA focuses exclusively on the intensity,
or the “severity of impact” of the proposed project. See 40 C.F.R. § 1508.27(b). The regulations
list ten factors that should be taken into account when evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist
even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or
cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or
ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely
to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly
uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with
significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but
cumulatively significant impacts. Significance exists if it is reasonable to anticipate
a cumulatively significant impact on the environment. Significance cannot be avoided
by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways,
structures, or objects listed in or eligible for listing in the National Register of Historic
Places or may cause loss or destruction of significant scientific, cultural, or historical
resources.
(9) The degree to which the action may adversely affect an endangered or threatened
species or its habitat that has been determined to be critical under the Endangered
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Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27(b). The LCPA raises points as to factors 1, 3-7, and 9.
We have held that the factors are not “categorical rules that determine by themselves whether
an impact is significant.” Spiller, 352 F.3d at 243. In this case, the LCPA has not successfully
argued that the factors tend to show that the impact of the project is so severe as to render it
significant within the meaning of the regulation. As to the first factor, the LCPA attempts to
characterize the Corps’s statement that the degradation of the area necessitates timely intervention
as an admission that the impact of the project is significant. The fact that the area is suffering
environmental losses is part of the past cumulative impacts study but is not relevant to a finding of
future impacts flowing from the project. Arguments as to factors five through seven are reiterations
of prior arguments, as these discussions simply restate the arguments as to whether the EA need take
into account the possibility of future projects in the Atchafalaya Basin. The LCPA’s assertions that
there has been inter-agency controversy over the project (factors 3 and 4), or that the presence of the
black bear is significant (factor 9) are frivolous. The LCPA has produced no evidence that other
agencies have resisted the Corps’s proposed project. Furthermore, the LCPA admits that the United
States Fish and Wildlife Service has stated that the project is “not likely to adversely affect” the black
bear. As such, the LCPA has failed to demonstrate that the FONSI was in error.
Therefore, we hold that the Corps’s Finding of No Significant Impact was not arbitrary or
capricious.
IV
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the
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Corps.4
4
The LCPA also argues that the district court applied the wrong standard of review.
The district court did not enter a written memorandum of reasons but did state clearly during the
hearing, “The burden in this matter is arbitrary and capricious, and based on the documents that have
been presented to this Court, I cannot find that the Corps acted arbitrarily or capriciously.” We need
not decide this issue, as “[a]n appellate court can affirm the granting of summary judgment on any
ground supported by the record, even where the district court granted summary judgment based upon
erroneous reasoning.” Cherokee Pump & Equip. Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir.
1994).
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