Rhoads v. Zirschky

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10834 Summary Calendar

WAYNE C. RHOADS,

Plaintiff-Appellant,

VERSUS

JOHN H. ZIRSCHKY, as Acting Assistant Secretary of the Army for Civil Works, Department of the Army; ARTHUR WILLIAMS, Lt. General, as Chief of Engineers, U.S. Army Corps of Engineers; JOSEPH G. GRAFF, Colonel, as District Engineer, U.S. Army Corps of Engineers; GARY GWYN, as City Manager; JAMES P. KING, Colonel, as Commanding Officer, Southwestern Division, U.S. Army Corps of Engineers; THE CITY OF GRAND PRAIRIE, TEXAS,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas (3:94-CV-1427-H) February 5, 1997

Before JONES, DEMOSS, and PARKER, Circuit Judges. PER CURIAM:*

This litigation concerns the planning, financing and

construction of a flood reduction project in the Johnson Creek area

in Grand Prairie, Texas. Appellant, Wayne C. Rhoads (“Rhoads”),

brought this suit pro se seeking declaratory and injunctive relief

as well as punitive damages for appellees’ alleged violations of

the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C.

§ 4321, et seq.; the Fish and Wildlife Coordination Act (“FWCA”),

16 U.S.C. § 661, et seq.; the floodplain management requirements of

44 C.F.R. § 60.1, et seq.; and the open meetings requirements of 33

C.F.R. § 327, et seq. and 40 C.F.R. § 1500, et seq. Rhoads also

alleged due process violations and fraud on the public.

On appeal, Rhoads argues the following: (1) that the district

court erred as a matter of law in granting summary judgment to the

defendants on his NEPA claim; (2) that there was genuine issue as

to material fact regarding whether the defendants complied with the

FWCA’s requirement that the Army Corps of Engineers (“Corps”)

consult with the U.S. Fish and Wildlife Service (“USFWS”) as well

as whether defendants complied with open meeting requirements; (3)

that as a pro se plaintiff, the district court should have

explained to him in some way the operation of summary judgment; (4)

that the district court should have delayed its summary judgment

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

2 consideration until after the plaintiff completed additional

discovery; and (5) that summary judgment on his due process claim

was improper as a matter of law. Finding no merit in the

appellant’s arguments, we affirm the decision of the district

court.

I. FACTUAL AND PROCEDURAL HISTORY

Viewing the facts in a light most favorable to the nonmovant,

Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 40 (5th Cir.

1996), the facts are as follows.

Johnson Creek runs through the cities of Grand Prairie and

Arlington, Texas. Rhoads owns a tract of land abutting Johnson

Creek and has resided there for more than twenty years. The area

of the Corps project consisted of heavily wooded rolling land with

rock outcroppings along the creek and abundant wildlife.

The Corps of Engineers became involved with the creek’s

flooding as early as 1968 when it produced a report defining the

watershed and floodplain. After a number of studies and public

comment, the Ft. Worth District Office of the Corps issued a Draft

Feasibility Report in March 1980 in which it found that the costs

to reduce the flooding would exceed the benefits.

Congress authorized the Corps to reinvestigate the flooding

problem in 1981. Because the city of Grand Prairie had allowed

development in the floodplain,1 property values in the area altered

1 Grand Prairie had begun an unpermitted channelization project on a lower one-mile reach of the creek.

3 the results of a cost-benefit analysis of a flood reduction

project. Supplemental reports issued in 1982 identified a feasible

flood control project for the area. In 1986, the Corps prepared a

draft feasibility report based in earlier studies, and recommended

a channelization of five reaches, four in Arlington and one in

Grand Prairie. In 1987, Grand Prairie indicated its interest in

such a program. After the Corps structured the project as two

smaller, “small flood control projects,” under 33 U.S.C. § 701s,

the City of Grand Prairie entered a contractual agreement with the

Department of Army, acting through the Corps district office, and

was the project’s local sponsor.

In March 1990, the Corps issued a Draft Detailed Project

Report regarding the Grand Prairie portion of the project. On

April 18th of the same year, it conducted a public hearing in the

Grand Prairie City Council chambers to present the recommended plan

for public input. The Draft Detailed Project Report included a

Draft Environmental Assessment (“EA”) and a Draft Finding of No

Significant Impact (“FONSI”) and was circulated for a 30-day review

to agencies and the public.

The Corps’ district office issued a Final Detailed Project

Report in May 1990, and recommended three segments of

channelization within Arlington and one segment in Grand Prairie.

The Final Detailed Project Report included the final EA and FONSI.

The Corps Headquarters approved the final Detailed Project Report

in September 1990. The Assistant Secretary of the Army granted

4 construction approval in February 1992.

In the final Detailed Project Report, a USFWS study was

included which stated that the channelization would virtually

eliminate existing aquatic habitats. Along the way, the USFWS had

made various contributions: in 1981, mitigation plan suggestions;

in 1984 and 1985, comments; and, in 1986, a letter noting the

project’s impact on the creek’s stream fishery and the losses to

habitat quality.

In August 1993, the Corps district office prepared a

Supplemental EA to address changes in the project that resulted

from the preparation of detailed plans and specifications. After

reviewing comments submitted during the 30-day comment period, the

district office issued a FONSI in September 1993. In that period,

the Corps received a petition signed by 24 residents voicing their

concern and requesting an extension of the comment period. The

USFWS also submitted a letter noting that the project’s changes

altered the mitigation area plan. A construction contract was

awarded in September 1993. Construction of the channel was

scheduled for completion in September 1995, but remained unfinished

at the time that this appeal was filed.

Condemnation proceedings for a drainage and utility easement

and a temporary construction easement on Rhoads’ Johnson Creek

property resulted in a $60,000 award to Rhoads in June 1993.

Rhoads filed this suit in July 1994. In early 1995,

defendants filed motions to dismiss, or alteratively, for summary

5 judgment. In August 1995, the district court granted the

defendants summary judgment. Rhoads subsequently filed a motion

for new trial, which was denied. Rhoads now appeals the district

court’s order to this court.

II. DISCUSSION

A. The Pro Se Litigant and Summary Judgment

The appellant complains that he did not know that defendants’

summary judgment motions had shifted the burden of proof to him and

that his failure to produce additional affidavits would have

negative ramifications for his suit. The district court had no

duty to explain the operation of Rule 56 to the plaintiff.

Particularized additional notice of the potential consequences of

a summary judgment motion and the right to submit opposing

affidavits need not be provided to a pro se litigant. Martin v.

Harrison County Jail, 975 F.2d 192 (5th Cir. 1992).

The appellant also complains that because discovery was not

complete at the time that summary judgment was awarded to the

appellees, he should have been given additional time for discovery.

He points to the fact that the scheduling order’s discovery

deadline had not yet lapsed. To obtain a continuance of a motion

for summary judgment to obtain further discovery, a party must

indicate to the court by some statement, preferably in writing, why

he needs additional discovery and how the additional discovery will

create a genuine issue of material fact. Krim v. BancTexas Group,

6 Inc., 989 F.2d 1435 (5th Cir. 1993); Washington v. Allstate Ins.

Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (“Rule 56 does not require

that any discovery take place before summary judgment can be

granted; if a party cannot adequately defend such a motion, Rule

56(f) is his remedy.”); Union City Barge Line, Inc. v. Union

Carbide Corp., 823 F.2d 129, 137 (5th Cir. 1987) (Fed. R. Civ. P.

56(f) is “tailor-made” for such circumstances.). The appellant did

not make a Rule 56(f) motion and thus cannot complain that he was

not allowed additional discovery. See Fed. R. Civ. P. 56(f). On

appeal, Rhoads tries to provide some of the specificity that was

not provided to the district court. However, we will not consider

on appeal reasons for such a continuance that a party failed to

present to the district court. Solo Serve, 929 F.2d at 167.

Rhoads also argues that the district court’s grant of summary

judgment was premature, and points to the fact that he had not yet

completed discovery and that a summary judgment hearing was not

held. This issue is closely tied to the one just discussed. Rule

56(f) is the appropriate mechanism to deal with a premature summary

judgment motion. Banco de Credito Indus., S.A. v. Tesoreria

General, 990 F.2d 827, 838 n.20 (5th Cir. 1993) (citing Celotex

Corp., 477 U.S. 317, 326, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265

(1986)), cert. denied, 510 U.S. 1071, 114 S. Ct. 877, 127 L. Ed. 2d

73 (1994). Rule 56(c) does not require an oral hearing in open

court. Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (5th

7 Cir. 1983). Rather, it contemplates notice to the party opposing

the motion and an adequate opportunity to respond to the movant’s

arguments. Id. Because Rhoads received notice and adequate

opportunity to respond, it is clear that he received the “hearing”

Rule 56(c) guarantees.

Rule 56 requires that a district court allow “adequate time

for discovery” prior to granting a motion for summary judgment.

Celotex, 477 U.S. at 322. Given that Rhoads failed to meet his

burden in response to the summary judgment motions, see Fed. R.

Civ. P. 56(e), the district court properly heard the defendants’

motions. One year and a month had passed since the case was

originally filed and six months had passed since the last amended

complaint was filed. A June 13, 1995 scheduling order had

established that discovery should be completed by September 25,

1995 and the summary judgment motion was granted on August 19,

1995. Defendants’ motions for summary judgment dated as far back

as February 1995. Rhoads clearly had adequate time to submit

either opposing affidavits or a motion indicating the necessity of

additional discovery in order to produce a material-fact-in-

dispute. See Banco de Credito Indus., 990 F.2d at 838 (seven

months considered adequate for international discovery). The

summary judgment procedure places some obligations on the nonmoving

party and does not permit that party to rest on his pleadings or on

a plea that he may bring forth opposing facts through further

8 discovery or at trial. Gossett v. Du-Ra-Kel Corp., 569 F.2d 869,

873 (5th Cir. 1978).

B. NEPA CLAIM

Having established that the district court properly acted in

making a judgment as a matter of law, whether the defendants were

deserving of judgment as a matter of law remains the issue to be

examined. See Fed. R. Civ. P. 56(e). We review a district court’s

order granting summary judgment on a de novo basis, applying the

same standards as the district court. Wallace v. Texas Tech Univ.,

80 F.3d 1042, 1046 (5th Cir. 1996). All of the evidence must be

viewed in the light most favorable to the motion’s opponent.

Nichols, 81 F.3d at 40.

We review the Corps’ actions to determine whether its actions

were either “arbitrary and capricious” or not in accordance with

law. Marsh v. Oregon Nat. Resources Council, 490 U.S. 360, 109 S.

Ct. 1851, 104 L. Ed. 2d 377 (1989). In inquiring whether a Corps

decision is “arbitrary and capricious,” the reviewing court “must

consider whether the decision was based on the consideration of the

relevant factors and whether there has been a clear error of

judgment.” Marsh, 490 U.S. at 378 (quoting Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed.

2d 136 (1971)). Rhoads contends that the Corps acted in an

arbitrary and capricious manner by dividing the Johnson Creek

Project into segments that would, separately considered, each

9 require only an Environmental Assessment (EA) and enable the

defendants to avoid subjecting the project to the more rigorous

Environmental Impact Statement (EIS). Rhoads further argues that

even if the project was not inappropriately segmented, the Corps

acted arbitrarily and capriciously in making a finding of no

significant impact (FONSI) on the environment, thus precluding the

requirement of an EIS.

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.’” Preserve

Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of

Eng’rs, 87 F.3d 1242, 1247 (11th Cir. 1996) (quoting Coalition on

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987)).

Segmentation analysis occurs in cases where it is alleged that

segmentation is being used as an escape from a designation as a

“major Federal action,” which triggers an EIS requirement, or where

portions of a proposed project are improperly segmented before a

project is developed to the stage of becoming a “major Federal

action.” See Save Barton Creek Assoc’n v. Fed. Highway Admin., 950

F.2d 1129, 1139-40 (5th Cir. 1992) (citing cases). Neither of

these scenarios are reflected in the summary judgment record.

Rather, the Corps based its Environmental Assessment and FONSI,

determinations which involve considering whether or not a project

10 is a “major federal action,” on a consideration of both projects

together. Thus, the projects were not considered separately, as is

the case with pretextual, improper segmentation. The Johnson Creek

project may have been manipulated into smaller projects for

financing purposes, but no agency wrongdoing is alleged in that

respect.

Regarding Rhoads’ second contention that even if improper

segmentation did not occur, the FONSI was “arbitrary and

capricious,” we could agree with such a characterization only if

the agency failed to consider relevant factors or if there was a

a clear error of judgment. See Marsh, 490 U.S. at 378 (quoting

Citizens to Preserve Overton Park, 401 U.S. at 416). In

authorizing “small projects for flood control and related

purposes,” Congress left the decisions about small flood control

projects to the Secretary of the Army. See Creppel v. U.S. Army

Corps of Eng’rs, 670 F.2d 564, 573 (5th Cir. 1982); S. Rep. No.

1732, 84th Cong., 2d Sess. 1956, 1956 U.S.C.C.A.N. 3083. At the

same time, we recognize that we should not automatically defer to

an agency. Marsh, 490 U.S. at 378.

NEPA requires that federal agencies consider the environmental

consequences of “major Federal actions significantly affecting the

quality of the human environment” in the form of an EIS. 42 U.S.C.

§ 4332(2)(C). The regulatory definition of “significantly”

mandates that agencies consider “cumulative impacts,” that is, “the

11 incremental impact of the action when added to other past, present

and reasonably foreseeable future actions regardless of what agency

(Federal or non-Federal) or person undertakes such other actions.”

Fritiofson v. Alexander, 772 F.2d 1225, 1232 (5th Cir. 1985)

(citing 40 C.F.R. § 1508.27). As noted above, the Corps did

consider the Arlington and Grand Prairie segments together in

making its FONSI. As a reviewing court, we cannot be “super-

engineers.” Marsh, 490 U.S. at 377 (when examining scientific

determination should be at most deferential). Our scope of review

is exceedingly narrow. See Id. at 378.

In issuing a FONSI, the Corps did not rely on the regulatory

guidance that states that an EIS is normally not required for a

small flood control project. See 33 C.F.R. § 230.7. Such would

return us to an improper segmentation question. Instead, the Corps

issued lengthy feasibility studies on which it based its EA and

FONSI. After a thorough review of the record, we find no

indication that the Corps performed anything other than a reasoned

analysis. The Corps did consider the projects’ environmental,

social, cultural and economic impacts. Although there may be

disagreement with the conclusions of the Corps, factual issues are

left to the agency. Marsh, 490 U.S. at 378.

C. FISH AND WILDLIFE COORDINATION ACT CLAIM

Rhoads contends that the defendants failed to coordinate with

the Fish and Wildlife Service as required by the FWCA, 16 U.S.C. §

12 662(a). Contrary to the appellant’s suggestions, the Corps was not

obligated to follow the recommendations of the USFWS, Texas Comm.

on Natural Resources v. Marsh, 736 F.2d 262, 268 (5th Cir. 1984);

Zabel v. Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert. denied, 401

U.S. 910, 91 S. Ct. 873, 27 L. Ed. 2d 808 (1971), but only to

consult with the USFW, 16 U.S.C. § 662(a); Id. The record contains

correspondence and reports indicating consultation. We affirm the

district court on this issue.

D. PUBLIC HEARING CLAIMS

Rhoads argues that the defendants did not comply with public

notice and hearing requirements, but has failed to show how public

notices of the proposed project issued by the Corps were inadequate

in complying with the relevant regulations. The agency was not

required to send him or others personal notice. See Envtl.

Coalition of Ojai v. Brown, 72 F.3d 1411, 1414-16 (9th Cir. 1995)

(40 C.F.R. § 1506.6(b)(3) methods of notice are merely permissive).

Regarding Rhoads’ contention that the public hearings were

“illusory” and thus failed to comply with meeting requirements, we

read the evidence to suggest that Rhoads’ characterization derives

from his disagreement with the defendants’ presentations and

decisions, rather than an actual failure to comply with the

regulations.

The district court did not err in granting summary judgment on

this issue.

13 E. DUE PROCESS CLAIMS

Rhoads contends that his constitutional right to due process

was denied by the defendants not taking seriously his concerns

about the project’s environmental impacts and by their alleged

failure to comply with NEPA. He also cites the defendants’

“premature” motion for summary judgment as a source of due process

violation. Rhoads’ arguments fail because the Fourteenth

Amendment’s due process protections are triggered only upon a

deprivation of “life, liberty, or property,” see U.S. Const. XIV,

§ 1, and such has not been alleged.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

order granting summary judgment.