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Sierra Club v. United States Army Corps of Engineers

September 28, 2006

SIERRA CLUB, NEW JERSEY PUBLIC INTEREST GROUP CITIZENS LOBBY, INC., AND NEW JERSEY ENVIRONMENTAL FEDERATION, PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, COLONEL RICHARD J. POLO, JR., AND MEADOWLAND MILLS/MACK-CALI LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

OPINION

INTRODUCTION

Sierra Club, New Jersey Public Interest Group Citizen Lobby, Inc., and New Jersey Environmental Federation (collectively, "Plaintiffs") filed this action against the United States Army Corps of Engineers and Colonel Richard J. Polo, Jr. (collectively, the "Army Corps") and the Meadowlands Mills/Mack-Cali Limited Partnership ("Mills/Mack-Cali"). Plaintiffs challenge a permit (the "Permit") issued by the Army Corps pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344 (the "CWA"), and section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, authorizing Mills/Mack-Cali to fill 7.69 acres of wetlands in East Rutherford, New Jersey that are subject to the jurisdiction of the Army Corps (the "7.69 acres of wetlands" or the "Cedar Creek Wetlands").*fn1 In brief, Plaintiffs allege that the Army Corps's issuance of the Permit violated the CWA, the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), the Rivers and Harbors Act, 33 U.S.C. §§ 401, et seq., as well as their implementing regulations. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 2201-2202.

Plaintiffs filed the Complaint in March 2005, and, in May 2005, filed a motion for preliminary injunctive relief by order to show cause. The Court held oral argument on Plaintiffs' motion on July 6, 2005. An order denying Plaintiffs' motion for preliminary injunctive relief was entered on the Docket on July 7, 2005, and a written opinion was entered on August 29, 2005.

Currently before the Court are Plaintiffs' motion for summary judgment, the Army Corps's and Mill/Mack-Cali's cross-motions for summary judgment, the Army Corps's motion to strike extra-record material, and Plaintiffs' cross-motion for judicial notice. The Court decides these motions without oral argument as it is permitted to do under Fed. R. Civ. P. 78. For the reasons discussed below, the Court denies Plaintiffs' motion for summary judgment, grants Defendants' cross-motions for summary judgment, grants Plaintiffs' motion for judicial notice, and grants in part and denies in part the Army Corps's motion to strike.

THE MOTIONS TO STRIKE AND FOR JUDICIAL NOTICE

Plaintiffs' motion for summary judgment included exhibits that were not part of the administrative record considered by the Army Corps during the administrative proceedings. Generally, when conducting judicial review of an agency's determination under the Administrative Procedure Act, a court is limited to the administrative record before the agency at the time the decision is made. 5 U.S.C. § 706 (providing that "the court shall review the whole record or those parts of it cited by a party"); see also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973). The Army Corps moved to strike these extra-record documents, identified as Exhibits 18-27 to Plaintiffs' motion for summary judgment, and to limit judicial review to the administrative record submitted by the Army Corps. Plaintiffs opposed the Army Corps's motion and cross-moved for judicial notice of documents identified as Exhibits 15-20 and 22-27 to Plaintiffs' motion for summary judgment. For the reasons discussed below, Plaintiffs' motion is granted, and the Army Corps' motion is granted in part and denied in part.

Certain of the pertinent Exhibits are not in dispute. First, the Court notes that Plaintiffs have not opposed the Army Corps's motion to the extent it seeks to strike the extra-record document identified as Exhibit 21. Accordingly, the Army Corps's motion is granted to the extent that it seeks to strike the document identified as Exhibit 21. Second, the Army Corps agrees that three of the documents that are the subject of Plaintiffs' motion, namely Exhibits 15, 16, and 17, may be considered by the Court even though not included in the administrative record. Exhibit 15 is "NJSEA's Master Developer Request for Proposals." Exhibit 16 is "NJSEA's Addendum to Master Developer Request for Proposals." The Army Corps indicates that the documents at Exhibits 15 and 16 were cited as references in the Army Corps's documents, that record documents quote excerpts from them, and that portions of them are attached to documents listed in the index to the record; consequently, submission of Exhibits 15 and 16 serves to provide the Court with full copies of materials considered by the Army Corps. The Court agrees. The document at Exhibit 17, "Memorandum of Agreement between the Department of the Army and the Environmental Protection Agency: The Determination of Mitigation under the Clean Water Act Section 401(b)(1) Guidelines," was published at 55 Fed. Reg. 9210 (Mar. 12, 1990), and thus is appropriate for the Court to consider. The documents at Exhibits 15, 16, and 17 not being subject to reasonable dispute, Plaintiffs' motion is granted to the extent that it seeks to have the Court take judicial notice of the documents identified as Exhibits 15, 16, and 17. See Fed. R. Evid. 201(b).

Thus, the dispute between the parties is only as to the documents identified as Exhibits 18-20 and 22-27. Although the general rule may be that a court is limited to the administrative record in reviewing agency action under the Administrative Procedure Act ("APA"), courts may consider evidence not contained in the record in a variety of circumstances. See, e.g., Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998) (listing instances in which a court may review materials outside the administrative record); Bergen County v. Dole, 620 F. Supp. 1009, 1016-17 (D.N.J. 1985) (discussing propriety of review of materials outside the administrative record). In particular, in NEPA cases, "a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored." Suffolk County v. Sec'y of Interior, 562 F.2d 1368, 1384 (2d Cir. 1977); see also Dole, 620 F. Supp. at 1016-17. Plaintiffs argue that they have submitted Exhibits 18-20 and 22-27 "in order to illustrate that the [Army Corps] neglected to mention serious environmental consequences and failed to adequately discuss reasonable alternatives to the proposed Xanadu project." (Pltfs' Judicial Notice Br. at 6). Thus, these documents fall under the aforementioned exception in NEPA cases to the general rule that a reviewing court is limited to considering the administrative record.

Further, Federal Rule of Evidence 201 provides, in part, that a court may take notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Each of the documents submitted at Exhibits 18-20 and 22-27 is a public or quasi-public document capable of accurate and ready determination, the authenticity of which is not at issue and the content of which is not in dispute, and is thus subject to judicial notice under Federal Rule of Evidence 201(b).*fn2 See, e.g., B.T. Produce Co., Inc. v. Robert A. Johnson Sales, Inc., 354 F. Supp. 2d 284 (S.D.N.Y. 2004) (taking judicial notice of various public documents); Del Puerto Water Dist. v. U.S. Board of Reclamation, 271 F. Supp. 2d 1224, 1233-34 (E.D. Cal. 2003) (taking judicial notice of public and quasi-public documents in context of motion to dismiss); Black v. Arthur, 18 F. Supp. 2d 1127, 1132 (D. Or. 1998) (taking judicial notice of public document in context of motion to dismiss).

Accordingly, Plaintiffs' motion is granted, and the Army Corps' motion is granted in part and denied in part. The Court will consider the documents at Exhibits 18-20 and 22-27 to the extent that they may be probative of the various arguments made by the parties as addressed below.*fn3

THE MOTIONS FOR SUMMARY JUDGMENT

I. LEGAL STANDARDS*fn4

A. Standard of Review Under Fed. R. Civ. P. 56(c)

A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The substantive law identifies which facts are critical or "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On a summary judgment motion, the moving party must show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to present evidence that a genuine, fact issue compels a trial. Id. at 324. In so presenting, the non-moving party must offer specific facts that establish a genuine issue of material fact,not just "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

The Court must consider all facts and their logical inferences in the light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The Court shall not "weigh the evidence and determine the truth of the matter," but need determine only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. If the non-moving party fails to demonstrate proof beyond a "mere scintilla" of evidence that a genuine issue of material fact exists, then the Court must grant summary judgment. Big Apple BMW v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992).

In general, courts have recognized that summary judgment is appropriate to adjudicate claims based on an agency's administrative record. See, e.g., S. Utah Wilderness Alliance v. Norton, 326 F. Supp. 2d 102, 107 (D.D.C. 2004); Clairton Sportsman's Club v. Pa. Turnpike Comm'n, 882 F. Supp. 455, 463 (W.D. Pa. 1995). This matter is substantially based on the Army Corps's administrative record, and there is no dispute as to the materials facts. Instead, the disputes involve whether the actions of the Army Corps conform to the requirements of the applicable federal statutes and regulations. Consequently, this matter is appropriate for summary judgment.

B. Standard of Review Under the Administrative Procedure Act

Claims under the CWA and the NEPA are subject to judicial review under the APA, 5 U.S.C. §§ 701, et seq. See, e.g., Soc'y Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 179 (3d Cir. 2000).

The APA provides in relevant part that agency actions, findings, and conclusions can be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A),(E). This is a very narrow and highly deferential standard under which an agency's action is presumed valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971); Clean Ocean Action v. York, 861 F. Supp. 1203, 1219 (D.N.J. 1994). A reviewing "court is not empowered to substitute its judgment for the agency's." Citizens to Preserve Overton Park, 401 U.S. at 416. Instead, the court's inquiry is limited to determining whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made," Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983), and "whether there has been a clear error of judgment." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency's conclusions will be upheld "if they are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Passaic Valley Sewerage Comm'ns v. U.S. Dept. of Labor, 992 F.2d 474, 480 (3d Cir. 1993); see also Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir. 1986) ("The court may not set aside agency action as arbitrary or capricious unless there is no rational basis for the action."). Further, agency determinations based on highly complex and technical matters are entitled to great deference. Baltimore Gas & Elec. Co., 462 U.S. at 105. In addition, a court may take into account that the Army Corps may give deference to decisions of a state agency regarding the purpose of a project sponsored by that entity. See Hoosier Envtl. Council, Inc. v. U.S. Army Corps of Eng'rs, 105F. Supp. 2d 953 (S.D. Ind. 2000); see also Anthony v. Quimby, No. 87-8250, 1990 WL 59364, at *6 (E.D. Pa. May 7, 1990). Finally, substantial deference is given to an agency's interpretation of statutes it administers, and particularly to its own regulations, so long as the interpretation is a permissible one. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984);National Wildlife Federal v. Whistler, 17 F.3d 1341, 1344 (8th Cir. 1994); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

II. FACTUAL HISTORY

The crux of this litigation is the Army Corps's issuance of a permit pursuant to section 404 of the CWA and section 10 of the Rivers and Harbors Act authorizing Mills/Mack-Cali to fill the 7.69 acres of wetlands in connection with the construction of a project, named the Meadowlands Xanadu Redevelopment Project (the "Xanadu project"), at the Continental Airlines Arena site within the Meadowlands Sports Complex in East Rutherford, New Jersey. (US-AR003808-33 (Permit No. 2003-00549 (March 18, 2005)); US-AR003845-3992 (Army Corps Memorandum for Record on Permit Application No. 2004-00549 (March 18, 2005))).*fn5

A. The NJSEA & the Meadowlands Sports Complex

The Meadowlands Sports Complex, including the site for which Xanadu is planned, is owned and managed by the New Jersey Sports and Exposition Authority ("NJSEA"). (USAR003845). The NJSEA's Sports Complex comprises 684 acres of the New Jersey Meadowlands. (US-AR003849). The Sports Complex is presently home to the Continental Airlines Arena, Giants Stadium, the Meadowlands Racetrack, and paved ancillary roadways and parking spaces. (US-AR003852). The Continental Airlines Arena site at issue in this litigation occupies 104 acres of the 684-acre Sports Complex. (US-AR003849). The Continental Airlines Arena site is comprised of the Continental Airlines Arena building, an extensive surface parking area, a peripheral roadway, and internal roadway network, and some land without construction, including wetlands. (US-AR003849). About 70 acres of the site was in a developed state at the time of the Army Corps's decision. (US-AR003849).

B. The Redevelopment Plan for the Continental Airlines Arena Site

During the mid-1990's, the NJSEA undertook a process to expand the Meadowlands Sports Complex entertainment product mix and to increase site utilization during the daytime. (US-AR003870-71). As part of that process, the NJSEA determined that the redevelopment of the Continental Airlines Arena site was an appropriate project. (US-AR003871).

In June 2002, the NJSEA issued a Request for Proposals ("RFP") soliciting plans from private companies to redevelop the 104-acre Continental Airlines Arena site, which includes the 7.69 acres of wetlands. (Id.).The RFP stated that the NJSEA envisioned "creating a multi-use destination at the Arena site that capitalizes on existing uses at the Meadowlands and expands the product mix in a manner that is complementary to those uses, without materially competing with existing business in the Meadowlands District." (NJSEA Meadowlands Sports Complex Redevelopment of the Continental Airlines Arena Site Master Developer Request for Proposals, at 5 (June 2002)).*fn6 The RFP further advised potential bidders that the NJSEA would be "receptive to concepts that incorporate reuse of the Arena," that "[a] small wetland occupies approximately eight (8) acres of the Arena site," and that interested developers should bear in mind that one of NJSEA's strategic objectives is to "[p]rotect and enhance the unique ecosystem of the Meadowlands." (Id. at 5, 7, 20, 24). While initial phases of redevelopment were to be confined to the Continental Airlines Arena site, potential bidders could submit plans incorporating later phases of development on other NJSEA-owned property at the Sports Complex. (Id. at 14; NJSEA Meadowlands Sports Complex Redevelopment of the Continental Airlines Arena Site Master Developer Request for Proposals Request for Additional Information, at 1 (October 14, 2002)*fn7 ).

On November 21, 2002, NJSEA selected three developers as final round bidders: Mills/Mack-Cali, Hartz Mountain Industries, Inc., and the Westfield Group. (Matthew Futterman, Three Make the Cut as Arena Site Developers, THE STAR-LEDGER, Newark, NJ (Nov. 22, 2002)*fn8 ). NJSEA President and CEO George Zoffinger stated that "each of these plans would create a large number of new jobs, they each have a destination as part of their plan, and they each actually have the potential to be built." (Id.).Only the Westfield Group's proposal contemplated the preservation of the Cedar Creek Wetlands. (US-AR003881). In February 2003, the NJSEA resolved to enter into exclusive negotiations with Mills/Mack-Cali to redevelop the Continental Airlines Arena Site pursuant to the Xanadu proposal. (US-AR007473 (Redevelopment Agreement (Dec. 3, 2003))).

In December 2003, the NJSEA and Mills/Mack-Cali entered into a Redevelopment Agreement, which was amended in October 2004. (US-AR007472-7577). The Redevelopment Agreement delineates the uses for which Mills/Mack-Cali has the right to redevelop the Continental Airlines Arena site. (Id.). The Redevelopment Agreement provides that certain components of the project, including development of a hotel, office space, and minor league baseball stadium, are contingent upon "favorable economic and market conditions." (USAR007476-78). Xanadu is a proposed $1.3 billion, 4.96 million square foot shopping, sports, entertainment, hotel and office complex. (US-AR003848).

Xanadu was subject to review under New Jersey law. See N.J.S.A. 5:10-5(x). NJSEA, the New Jersey Meadowlands Commission, the New Jersey Department of Environmental Protection, the New Jersey Department of Transportation, and the New Jersey Transportation Planning Agency each participated in some stage of a State Environmental Impact Statement review process, which included preparation of a Preliminary Draft Environmental Impact Statement ("PEIS"), circulation of the PEIS for public comment and subjecting the PEIS to public hearings, and review and submission of comments and modifications, approval by various agencies of the State of New Jersey, and ultimately the release of a Final Environmental Impact Statement in August 2004. (US-AR009452-9646; US-AR000899-958; US-AR001800-1918).

C. Federal Permit to Fill the Cedar Creek Wetlands*fn9

1. The Proposed Fill Areas

The Xanadu project requires filling of 7.69 acres of wetlands under the jurisdiction of the Army Corps. The proposed fill area of 7.69 acres is comprised of ten distinct parcels: five at the Xanadu site and five in adjacent areas where improvements to infrastructure are planned. (USAR003846). The largest contiguous parcel is a 5.33 acre area East of the Continental Airlines Arena in the proposed footprint of the entertainment component of Xanadu. ((US-AR003846; US-AR003969). Another discrete parcel is a 1.52 acre strip along the Northern edge of the Continental Airlines Arena site. (US-AR003846). The remaining 0.73 acres comprises several smaller patches. (US-AR003846). The Army Corps described the areas to be filled as follows:

The wetlands and waterways that would be filled are 1) fragmented from major wetlands in the region (i.e., surrounded by existing development and roadways); 2) exhibit contamination levels above the applicable NJDEP criteria; and 3) heavily disturbed by previous human activities.

(US-AR003851).

2. The Permit Application

In June 2003, Mills/Mack-Cali applied to the Army Corps for a permit to fill the 7.69 acres of wetlands in connection with development of Xanadu.*fn10 (US-AR003845). The Army Corps issued a jurisdictional determination on November 13, 2003, and, following submission of an amended permit application by Mills/Mack-Cali reflecting the Army Corps's conclusions, issued an amended jurisdictional determination on July 27, 2004. (US-AR003849-50). An amended permit application submitted by Mills/Mack-Cali included an alternatives analysis and a compensatory mitigation plan proposing preservation of 235 acres of wetlands on the 587-acre Empire Tract. (US-AR003848-49).

The application was deemed complete on July 28, 2004. (US-AR003854).

3. The Public Hearing and Public Comments

On July 27, 2004, the Army Corps issued a public notice that described the permit application and announced the commencement of a public comment period on Mills/Mack-Cali's application as well as a public hearing on August 26, 2004. (US-AR003854-55). The comment period originally was to terminate on September 7, 2004; however, upon request by members of the public including certain of Plaintiffs, the comment period was extended first to September 14, 2004, and then to September 22, 2004. (US-AR003854-55). Twenty-three individual members of the public appeared at the August 26, 2004 public hearing held by the Army Corps, six of whom made oral presentations, including representatives of Plaintiffs. (US-AR003855; US-AR003859).Public comments were received from, inter alia, federal agencies, political leaders, and members of the public, including Plaintiffs. (US-AR003856-69). The Army Corps requested certain supplemental information from Mills/Mack-Cali, which submitted responsive materials.*fn11

4. The Permit

On March 18, 2005, the Army Corps issued the Permit, which authorizes the fill of the 7.69 acres of wetlands, as well as its Memorandum for Record. (US-AR003808-33 (Permit No. 2003-00549 (March 18, 2005)); US-AR003845-3992 (Army Corps Memorandum for Record on Permit Application No. 2004-00549 (March 18, 2005))). The Memorandum for Record addresses the public comments received and contains the Army Corps's analysis mandated by the CWA and the NEPA, including the Army Corps's "Environmental Assessment" and "Finding of No Significant Impact."*fn12 (US-AR003845-3992). Notably, the Permit imposed as special conditions requirements that Mills/Mack-Cali provide compensatory mitigation to offset any impacts from the authorized filling activities. (US-AR003809-10). Specifically, Mills/MackCali was required to fund the enhancement of 15.38 acres of wetlands at a site referred to as the "Secaucus[, New Jersey] High School Wetland Enhancement Site" and to preserve a site known as the "Empire Tract," containing hundreds of acres of wetlands, by means of causing conveyance in fee to the Meadowlands Conservation Trust. (Id.).

III. DISCUSSION

Plaintiffs' motion for summary judgment raises the following categories of challenges to the Army Corps's issuance of the Permit: (1) the Army Corps violated the NEPA and regulations thereunder by improperly limiting the scope of its environmental analysis and erring in its "FONSI" analysis; (2) the Army Corps violated the CWA and its regulations by failing to prohibit the destruction of wetlands where practicable alternatives exist; and (3) the Army Corps violated the CWA and its regulations by failing to provide adequate notice and opportunity for comment regarding documents upon which the Army Corps based its environmental review. Defendants' cross-motions for summary judgment argue that the Army Corps's issuance of the Permit complied with NEPA, the CWA, the Rivers and Harbors Act, as well as the implementing regulations promulgated under each.

A. The National Environmental Policy Act

Plaintiffs argue that the Army Corps violated the NEPAby improperly limiting the scope of its environmental analysis and that its issuance of a FONSI was not in accordance with law. Defendants argue that the Army Corps's NEPA analysis was ...


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