MEMORANDUM OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
JOHN R. TUNHEIM, Chief Judge, United States District Court.
Plaintiff Richland/Wilkin Joint Powers Authority ("JPA") alleges that Defendants violated state and federal laws in allegedly not devoting sufficient attention to one particular Minnesota alternative to a proposed flood diversion project that the U.S. Army Corps of Engineers ("Corps") decided to place in North Dakota. The JPA's theory of the case is that the Minnesota alternative route would have been better in terms of floodplain protection, and Defendants ignored that concern in their study of alternatives. The Court's order today concerns only the JPA's federal claims brought under the National Environmental Protection Act ("NEPA"). Because NEPA's provisions are largely procedural, and the Corps studied the at-issue Minnesota route at length, the Court will grant Defendants' motions for summary judgment.
The Court notes that it passes no judgment on whether the North Dakota route that the Corps ultimately selected is the best route either generally or for the environment. The Court's task today is not to decide whether the Minnesota alternative is good, or the selected North Dakota route is bad. The Court's role is only to evaluate whether the government's decision-making process in declining to choose the Minnesota route was "arbitrary and capricious." It was not.
Even after today, this case will go on. The JPA's Minnesota law claims have not yet been decided and the Court's previously granted injunction will continue for the time being.
The Court has issued numerous orders in this case and those orders have discussed the facts at length. See, e.g., Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, 38 F.Supp.3d 1043, 1045-55 (D.Minn.2014). The Court will revisit these facts only to the extent necessary to provide context for and decide the motions now pending before the Court.
I. THE PARTIES
The JPA is a joint authority created by Richland County in North Dakota and Wilkin County in 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. See Minn. Stat. § 471.59 ("JOINT EXERCISE OF POWERS"); N.D. Cent. Code § 54-40.3 ("JOINT POWERS AGREEMENTS"). Richland and Wilkin Counties formed the JPA to protect their citizens and their citizens' property from flooding.
The Corps is a federal agency involved in the development of the flood prevention project at issue in this case.
II. FACTUAL BACKGROUND
The Red River of the North originates at the confluence of two tributaries, demarking nearly the entirety of the Minnesota-North Dakota border. The Red flows northward through the Red River Valley, eventually emptying into Lake Winnipeg in Canada. For as long as humans have lived on the Red River, the river has flooded, sometimes to disaster. In 2008, the Corps, Fargo, and Moorhead together began a feasibility study to examine "alternatives... to reduce flood risk in the entire Fargo-Moorhead Metropolitan area." (A.R. at 49,644.)
In December 2009, the Corps published an "Alternatives Screening Document" indicating that it had identified a "wide array of initial alternatives" for how communities along the Red River should address future flood risks: continue the status quo and respond to floods with "emergency measures"; take "[n]onstructural measures" to reduce flood risks by, for example, relocating flood-prone structures, elevating at-risk structures, and bolstering the role of wetlands and grasslands; build "[f]lood barriers," such as levees and floodwalls; "[i]ncrease conveyance" of water by building "[d]iversion channels around the study area" either in Minnesota or in North Dakota; or take action to increase "[f]lood storage," by for example building "[d]istributed storage" and "[l]arge dams upstream." (Id. at 990, 998-99.) That document analyzed the various alternatives and recommended that two options be considered for further evaluation: taking no action, and building diversion channels. (Id. at 1,033.) The document reported that the Corps had conducted an initial screening of nine different diversion channels running along four different "alignments": a 25-mile alignment in Minnesota, a 29-mile alignment in Minnesota, a 35-mile "west" alignment in North Dakota, and a 36-mile "east" alignment in North Dakota. (Id. at 1008-09.) The Corps initially considered varying capacities for each alignment ranging from 25,000 to 45,000 cubic feet of water per second ("cfs"). (Id.)
Corps policy required that it designate one of the various alternatives as the "national economic development" ("NED") plan, and that it propose that plan for implementation "unless there are overriding reasons for recommending another plan, based on other Federal, State, local and international concerns." (Id. at 6,903, 6,914.) To designate an NED plan, Corps policy required it to analyze the alternatives to determine which option "reasonably maximizes net national economic development... benefits consistent with protecting the environment." (Id. at 6,903; see also id. at 6,955 (citing the "Corps of Engineers Planning Guidance Notebook").)
Over months and multiple phases of analyses, the Corps initially concluded that the 25-mile ("short") Minnesota 20,000 cfs diversion was the NED plan (id. at 1,135, 1,138), but then later, upon further study, granted the NED plan designation to the short Minnesota 40,000 cfs diversion, estimating that it would net an average of $105,600,000 in annual benefits (id. at 6,937). The Cities of Fargo and Moorhead and Cass and Clay Counties, however, requested that the Corps consider recommending the North Dakota east 35,000 cfs diversion as the LPP. (Id. at 6,696-6,703 (reprinting resolutions supporting the North Dakota diversion as the LPP).)
On April 19, 2010, in a seven-page single-spaced letter, Theodore A. Brown of the Corps wrote to Assistant Secretary of the Army Jo-Ellen Darcy and requested that she grant an LPP-exception allowing the Corps to recommend the North Dakota plan instead of the Minnesota-alignment NED plan. (Id. at 6,687.) Brown's letter described both the LPP and the NED plan, compared the two plans, and concluded that although the NED "produces greater net benefits" than the LPP, the LPP was better because it produced "larger overall economic benefits to more people and a greater geographic area." (Id. at 6689-91.) On April 28, 2010, Darcy issued a memorandum "grant[ing] the requested policy exception because the LPP would significantly reduce flood damages, the risk of loss of life, and the need for emergency flood fighting measures." (Id. at 6,707.) Darcy stated the LPP would better reduce average annual damages as compared to the NED plan, benefit "6,625 more people and protect about 3,100 more structures," and hold in place the expected costs for the federal government. (Id.)
In May 2010, the Corps published a Draft Environmental Impact Statement ("Draft EIS"). (Id. at 6,848.) The Draft EIS discussed how the Corps had studied the benefits and costs of taking no action, building six variations of the Minnesota diversion including the version the Corps labeled the NED plan, building two different variations of the North Dakota diversion including the version labeled the LPP,
In a later Supplemental Draft EIS, and eventually in the Final EIS, the Corps continued to refine its plans, and to publish and describe the varying drawbacks and advantages of the NED plan and the LPP. In the Final EIS, the Corps explicitly highlighted the NED plan's advantage with respect to one particular factor: protecting floodplains from development.
(Id. at 49,777 (emphasis added).) In other words, the Corps weighed the NED plan's advantage of being marginally better for the protection of floodplain with the LPP's advantage of reducing flood risk in a larger geographic area and covering additional tributaries, all before concluding that the latter factor weighed more heavily. (Id.)
The Corps finally selected the LPP plan as its proposed action, and the Corps' Acting Chief of Engineers endorsed the action in December 2011. (Id. at 48,864-71.) The Assistant Secretary of the Army signed a "Record of Decision" and forwarded the Corps' relevant reports and studies to Congress in April 2012. (Id. at 49,574-75.)
III. PROCEDURAL BACKGROUND
The JPA filed its initial complaint in this action on August 19, 2013, naming only the Corps as a defendant. (Compl., Aug. 19, 2013, Docket No. 1.) At first, the 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., Oct. 22, 2013, Docket No. 14.) In November 2013, the Court granted the Diversion Authority leave to intervene. Then in May 2014, the JPA amended its complaint upon stipulation of the parties, this time naming both the Corps and the Diversion Authority as defendants and limiting their allegations to violations of NEPA; the new complaint excluded not only the counts related to Minnesota law, but also those alleging violations of E.O. 11988. (Second Am. Compl., May 2, 2014, Docket No. 47.)
One month later, in June 2014, the Diversion Authority began construction on a "ring levee" located in the Oxbow-Hickson-Bakke area of North Dakota (the "OHB ring levee"). Almost immediately, the JPA filed a new action in Wilkin County, North Dakota Court requesting an injunction prohibiting the Diversion Authority (but not the Corps) from building the diversion project. (Diversion Auth.'s Mot. for Prelim. Inj., Ex. 1 at 20-21, June 19, 2014, Docket No. 53.) The JPA's North Dakota state court complaint alleged anticipated violations of some of the same Minnesota statutes that the JPA initially pursued but abandoned in federal court. (Compare id. (alleging violations of Minn. Stat. § 116D), with First Am. Compl. (same).)
Back in federal court, the Diversion Authority requested and the Court granted an injunction preventing the JPA from further pursuing its Wilkin County state court action, because the state court action pursued essentially the same relief as that requested in federal court. Richland/Wilkin, 38 F.Supp.3d at 1059. The Court explicitly welcomed the JPA to assert its state law allegations in the federal proceeding. Id. at 1045.
The JPA followed the Court's suggestion and filed the now-operative complaint — the Third Amended Complaint — on November 4, 2014. (Third Am. Compl.) It contains five counts: Counts I and II allege NEPA violations against the Corps and the Diversion Authority. (Id. ¶¶ 88-122.) The remaining counts involve state law allegations, again against both the Corps and the Diversion Authority: Count III alleges violations of the Minnesota Environmental Rights Act ("MERA"), Count IV alleges violations of the Minnesota Environmental Policy Act ("MEPA"), and Count V alleges violations of state and local permitting laws. (Id. ¶¶ 123-39.) The Third Amended Complaint does not contain an E.O. 11988 claim.
Next, the JPA filed a motion for a preliminary injunction with this Court, asking the Court to do what the JPA had originally asked of the Wilkin County Court: enjoin the Diversion Authority from constructing the OHB ring levee. (Pl.'s Mot. for Prelim. Inj., Feb. 11, 2015, Docket No.122.) In turn, the Diversion Authority and the Corps filed motions to dismiss Counts III, IV, and V — the state and local law claims. (The 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.) The Court ruled on the motions together in a single order in May 2015. Richland/Wilkin Joint Powers Auth. v. U.S.
Id. at *24.
Now the following claims remain: Counts I and II against the Corps and Counts IIV against the Diversion Authority. Count V has been dismissed in the entirety. On June 30, 3015, the JPA moved the Court to grant summary judgment. (JPA's Mot. for Summ. J., June 30, 2014, Docket No. 254.) On August 28, 2015, the Corps and the Diversion Authority each filed their own separate motions for summary judgment on Counts I and II. (Diversion Auth.'s Cross Mot. for Summ. J., Aug. 28, 2015, Docket No. 298; U.S. Army Corps' Cross Mot. for Summ. J., Aug. 28, 2015, Docket No. 300.)
I. STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's
II. NEPA CLAIMS AGAINST THE CORPS
A. COUNT I: NEPA
1. E.O. 11988
Count I of the JPA's complaint alleges NEPA violations against the Corps. (Compl. ¶¶ 88-117.) Yet in the present motions the JPA declined to base its argument on NEPA's statutory commands. Instead, the JPA relies almost entirely on an argument that the Corps violated E.O. 11988, a 1977 executive order that prescribes a process by which federal agencies are to consider environmental effects when taking actions in floodplains. Exec. Order 11988, 42 F.R. 26951 (May 24, 1977).
As an initial matter, the Court notes that the operative complaint does not contain an E.O. 11988 claim. It appears that the JPA's theory is that a violation of E.O. 11988 is necessarily a violation of NEPA; the two are somehow coextensive. Even if the Court were to accept this as true — although the Court does not — the Court still could not review the Corps' actions for compliance with the executive order. Most executive orders "are not judicially enforceable in private civil suits." In re Surface Mining Regulation Litig., 627 F.2d 1346, 1357 (D.C.Cir.1980). The exception is when an executive order (1) possesses a "specific foundation in congressional action," id., and "the force and effect of law," Indep. Meat Packers Ass'n v. Butz, 526 F.2d 228, 235-36 (8th Cir.1975); and (2) was "intended" by the President to be "a legal framework enforceable by private civil action," as opposed to a "managerial tool for implementing the President's personal ... policies," id. at 235-36. Thus, "[a]n Executive Order devoted solely to the internal management of the executive branch — and one which does not create any private rights — is not ... subject to judicial review." Meyer v. Bush, 981 F.2d 1288, 1296 n. 8 (D.C.Cir.1993). At least three strong bases support the rule against judicial review of compliance with an executive order: first, courts lack federal question jurisdiction over claims brought to enforce executive orders not coextensive with a statute or some constitutional provision; second, a party may always petition the president with concerns about purported violations of an executive order; and third, principles of separation of powers counsel the Judiciary to remain uninvolved in the Executive's internal management. Erica Newland, Note, Executive Orders in Court, 124 Yale L. J. 2026, 2076-77 (2015).
In light of these principles, the Court finds that it may not review the Corps' actions in this case for purported violations of E.O. 11988. First, E.O. 11988 does not have the force and effect of law. When President Carter promulgated the order, he did so under authority vested in him by the Constitution and unspecified "statutes," never specifying what exact laws the order was meant to enforce. 42 F.R. at 26951 ("By virtue of the authority vested in me by the Constitution and statutes of the United States of America...."). While the executive order states that its provisions are "in furtherance" of NEPA as well as two other flood-related federal statutes, the executive order does not suggest its provisions are coextensive with any of those statutes. Id. In other words, nothing in E.O. 11988 indicates it is anything more than a managerial tool for
Second and perhaps more importantly, President Obama amended E.O. 11988 in January 2015, adding the following text: "This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."
Although the JPA's E.O. 11988 arguments cannot succeed on their own terms, the Court will consider whether they may be successful if restyled under NEPA. The provisions of NEPA applicable here require all federal agencies to prepare, for all "legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement" that addresses, among other topics, the action's "environmental impact" and "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C). This statement is termed an "environmental impact statement" ("EIS") in communities familiar with NEPA. NEPA also requires federal officials to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."
Judicial review of agency decisions for NEPA violations is also highly deferential. NEPA itself "does not authorize a private right of action," and so courts review agency compliance with NEPA under the Administrative Procedures Act ("APA"). Friends of the Norbeck, 661 F.3d at 973. "Under the APA, a reviewing court will not set aside agency action unless it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Sierra Club v. Kimbell, 623 F.3d 549, 559 (8th Cir.2010) (quoting 5 U.S.C. § 706(2)(A)).
The JPA's first argument with a basis in NEPA is that the Corps failed to recognize that the NED plan was "a [s]uitable [a]lternative to [f]loodplain [d]evelopment," and, as the Court understands the argument, the Corps therefore violated § 4332(C) and (E)'s commands that the Corps "study the environmental impact" of its proposed action and "study, develop, and describe" alternative actions. (JPA's Mem. in Supp. of Mot. for Summ. J. at 17-19, June 30, 2015, Docket No. 256.) The Corps, however, did study the NED plan and its admittedly better effect on floodplains as compared to the LPP. As described above, the Corps extensively studied a variety of diversion plans and eventually narrowed its process to only the NED plan and the LPP. The best evidence that the Corps took the NED plan seriously is the fact that it called the plan the "NED plan" at all; that designation could only belong to the plan that the Corps thought would maximize economic benefit while protecting the environment. It is simply incorrect to say the NED plan's environmental effects were not studied — they were studied at length.
The JPA's second argument that sounds in NEPA is that the State of Minnesota raised a variety of concerns in comments to which the Corps did not adequately respond in its EIS. As mentioned above, NEPA requires an agency to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves
Here, however, the Corps undisputedly did respond to numerous comments made by the State of Minnesota. (See Corps' Mot. for Summ. J. at 33-34 (detailing in a two-page table 31 different topics raised by the State of Minnesota and providing administrative record citations to the Corps' response for each).) And the JPA provided the Court with no citations to comments that the State of Minnesota made that the Corps left unaddressed. (JPA's Mem. in Supp. of Mot. for Summ. J. at 20-24.) Perhaps the Corps did not give as full-throated of a response to some of the comments as the JPA would have liked, but NEPA does not require a lengthy response to every comment, just the disclosure and discussion of unresolved conflicts. "It is up to the Corps to decide which comments of other agencies are of value to its projects, and we are hesitant to second guess its judgment." Ark. Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 431 F.3d 1096, 1101 (8th Cir.2005).
B. COUNT II: FONSI
Count II of the JPA's complaint contains allegations of additional NEPA violations based on the Corps' Finding of No Significant Impact ("FONSI"). (Third Am. Compl. ¶¶ 118-22.) The Court will grant summary judgment to the Corps on Count II because the JPA has not provided a sufficient legal or factual basis to defeat the Corps' motion.
It is not altogether clear whether the JPA requested summary judgment on the Count II claims. The JPA was the first party to request summary judgment, but its motion requested summary judgment generally and without specification to any particular count or claim. The JPA's first memorandum in support of its motion, however, contains argument only with respect to Count I; the memorandum does not mention Count II or any of its claims.
When Defendants, on the other hand, filed their respective cross motions for summary judgment, they explicitly requested summary judgment on both Count I and Count II, and for Count II each defendant presented argument that (i) the JPA had abandoned its claims under Count II by not raising those claims in its moving memorandum, and (ii) Defendants were entitled to summary judgment on the merits of the Count II claims even if JPA had not abandoned them. In support of the second argument, the one on the merits, Defendants cited case law and the administrative record to argue NEPA did not require the Corps to prepare a supplemental EIS because the Corps' additions of certain mitigation measures and channel realignments to the LPP did not substantially change the proposed action, and therefore the JPA's Count II claims must fail. (Diversion Auth.'s Cross Mot. for Summ. J. at 32-33; U.S. Army Corps' Cross Mot. for Summ. J. at 38-39.)
The JPA's reply brief, however, responded substantively only to the abandonment argument. (JPA's Reply Mem. in Supp. of Mot. for Summ. J. ("JPA's Reply Mem.") at 35-39, Sept. 25, 2015, Docket No. 307.) On the merits, the JPA cited no case law, and its lone record citation was to 21 pages of the administrative record without any accompanying explanation as to how or why that portion of the record was relevant to, let alone sufficient to defeat, Defendants' motion on Count II. (Id. at 37 (citing A.R. at 62,415-62,436, which contains a full copy of a JPA comment to the Corps and an accompanying affidavit, both filed prior to the initiation of the present litigation). In this context, the Court has no option but to rule in Defendants' favor, because if a nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," the Court must award summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
The Court will grant the Corps' motion with respect to Count II.
III. NEPA CLAIMS AGAINST THE DIVERSION AUTHORITY
The JPA's complaint alleges its NEPA claims not only against the Corps, but also against the Diversion Authority. (Third Am. Compl. ¶ 27 ("Diversion Authority... is named as Intervenor-Defendants as to Counts I and II.".) However as mentioned above, the relevant terms of NEPA generally apply only to the actions of "agencies of the Federal Government," 42 U.S.C. § 4332, and the Administrative Procedure Act generally only permits the Court to review NEPA-related actions taken by federal agencies, see 5 U.S.C. § 551(1). No party has made any argument to the contrary. Here, the Diversion Authority is composed of state government units from North Dakota and Minnesota; the Diversion Authority is not a federal entity, even if it is the sponsoring entity for the purposes of the diversion project. The Court therefore finds that as a matter of law Counts I and II of the complaint cannot succeed against the Diversion Authority.
The Court's role in deciding these summary judgment motions is to examine the process by which the Corps arrived at its decision. Whether the Corps arrived at the correct decision, in terms of what is better for the environment, or better generally for the people in the affected area, is beyond the scope of the matter at issue today. The Court's finding is limited: the Corps did not act arbitrarily and capriciously in studying the environmental effects of the relevant Minnesota alternative plan for the flood diversion project. While reasonable people can and will disagree as to whether the Corps made a good or bad decision in deciding against the Minnesota option, the Corps' process was not illegal.
The Court's order today is not the end of this case. The JPA's Minnesota law claims are still pending against the Diversion Authority — those claims were not at issue in the motions decided in this order — and the Court's injunction preventing construction of the OHB ring levee remains in place. Those matters will await resolution on another day.
Based on the foregoing, and all the files, records, and proceedings herein,
1. Plaintiff JPA's Motion for Summary Judgment on Counts I and II [Docket No. 254] is
2. Defendant Diversion Authority's Cross Motion for Summary Judgment on Counts I and II [Docket No. 298] is
3. Defendant Corps' Cross Motion for Summary Judgment on Counts I and II [Docket No. 300] is
42 U.S.C. § 4332(2)(C), (E).)