UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NO. 91-3262
SAVE OURSELVES, INC., ET AL.,
Plaintiffs-Appellants,
versus
U.S. ARMY CORPS OF ENGINEERS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Louisiana
Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.
THORNBERRY, Circuit Judge:
Plaintiffs-Appellants are a group of non-profit organizations
interested in protecting and preserving the waters of Ascension
Parish, Louisiana. They oppose the completion of a regional
airport currently under construction in Ascension Parish because
they believe that the airport site is a wetlands subject to
regulation under Section 404 of the Clean Water Act. They sued the
U.S. Army Corps of Engineers (the Corps) and the Ascension-St.
James Airport and Transportation Authority (the Airport Authority),
seeking declaratory and injunctive relief. The district court
granted summary judgment against the Plaintiffs, and the Plaintiffs
appeal. Background
In 1980, the prior owner of the Ascension Parish airport site
drained the land in preparation for agricultural use. Between 1980
and 1985, the prior owner devoted 80% of the land to agriculture
and farmed crawfish in ponds dug on the remaining 20% of the land.
The Airport Authority purchased the land in 1986 as the site for
the proposed airport.
On February 23, 1987, an agent for the Airport Authority
requested a wetlands jurisdictional determination by the Corps. In
a letter dated March 5, 1987, the Corps notified the agent that the
area was not subject to the Corps' regulatory authority under
Section 404 of the Clean Water Act, i.e., the area was not a
"wetlands," and the Airport Authority would not need a Section 404
permit prior to commencing construction of the airport.
On January 10, 1989, the Corps adopted the Federal Manual for
Identifying and Delineating Jurisdictional Wetlands (the Federal
Manual). On June 30, 1989, the Corps' Regulatory Branch in
Washington, D.C. issued a memorandum advising the regional
districts that it was developing a Regulatory Guidance Letter (RGL)
on the issue of "grandfathering" wetlands determinations issued
prior to the adoption of the Federal Manual. Under the draft
policy attached to the memorandum, a prior wetlands determination
would remain in effect if substantial resources had been expended
in reliance on the prior determination. This policy was later
formalized in RGL 90-6.
2 On January 5, 1990, Plaintiff-Appellant Save Ourselves, Inc.
requested a determination of whether the airport site was a
wetlands under the new Federal Manual. Following the
"grandfathering" policy, which was then still in draft form, the
Corps notified Save Ourselves that it would not reconsider its
prior wetlands determination because the Airport Authority had
expended substantial resources in reliance on the prior
determination.
Save Ourselves and several other nonprofit environmental
groups1 (Plaintiffs-Appellants herein) filed suit against the Corps
and the Airport Authority on July 11, 1990, seeking: first, a
declaration that the Corps' policy of grandfathering prior wetlands
determinations was invalid because it was not adopted in compliance
with the Administrative Procedures Act; second, a declaration that
the airport site was a wetlands subject to the Clean Water Act; and
third, an injunction against further dredging of the airport site.
The Airport Authority, however, continued construction on the
site. The Authority had the vegetation and topsoil removed, the
land filled, and the runway laid. According to a preliminary
report prepared by the Airport Authority, the Authority had
expended $5,310,990 on the construction of the airport as of
September 1990.
1 The other Plaintiff organizations are: Louisiana Environmental Action Network, Inc.; Citizens For A Clean Environment; Alliance Against Waste and Action to Restore the Environment; Ascension Parish Residents Against Toxic Pollutants; and East Iberville AWARE.
3 In December 1990, the Plaintiffs requested a preliminary
injunction and an expedited hearing on the injunction issue. The
district court disposed of the case, however, by granting the
Defendants' motion for summary judgment on the basis of mootness.
The Plaintiffs appealed.
Discussion
In its brief on appeal, the Corps raised for the first time
the issue of the Plaintiffs' standing to assert their claims. The
Plaintiffs claim disadvantage by the late assertion of this issue.
Standing, however, is a jurisdictional issue that must be
considered by this Court, regardless of whether it was raised in
the district court. See FW/PBS, Inc. v. City of Dallas, 110 S.Ct.
596, 607 (1990); Fairley v. Patterson, 493 F.2d 598, 603 (5th Cir.
1974).
The essence of the Plaintiffs' claim against the Corps is that
the airport site is a wetlands under 33 U.S.C. § 404 (as
interpreted by the new Federal Manual), and that the Corps' refusal
to make a redetermination of wetlands jurisdiction is final agency
action reviewable under 5 U.S.C. § 702. Section 702 provides that:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C. § 702 (1977). The Plaintiffs claim that they were
adversely affected or aggrieved by the Corps' abrogation of its
duty to declare the airport site a wetlands under 33 U.S.C. § 404,
the relevant statute in this case. In order to show adverse effect
or aggrievement, "the plaintiff must establish that the injury he
4 complains of (his aggrievement, or the adverse effect upon him)
falls within the 'zone of interests' sought to be protected by the
statutory provision whose violation forms the legal basis for his
complaint." Lujan v. National Wildlife Federation, 110 S.Ct. 3177,
3186 (1990).
In the Complaint filed in the district court, the Plaintiffs
state that they are organizations "interested in protecting and
preserving the clean water and public health in Ascension Parish,
Louisiana, the State of Louisiana, and the United States." It is
undisputed that this interest falls within the "zone of interests"
protected by the relevant provisions of the Clean Water Act. See
Lujan, 110 S.Ct. at 3187. The Plaintiffs have standing as
organizations or associations to protect this interest only if (1)
the interest is germane to the purposes of the Plaintiff
organizations, (2) any of the Plaintiff organizations' members have
standing to sue on their own behalf, and (3) the participation of
individual members in the lawsuit is not required. Hunt v.
Washington State Apple Advertising Commission, 97 S.Ct. 2434, 2441
(1977).
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NO. 91-3262
SAVE OURSELVES, INC., ET AL.,
Plaintiffs-Appellants,
versus
U.S. ARMY CORPS OF ENGINEERS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Louisiana
Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.
THORNBERRY, Circuit Judge:
Plaintiffs-Appellants are a group of non-profit organizations
interested in protecting and preserving the waters of Ascension
Parish, Louisiana. They oppose the completion of a regional
airport currently under construction in Ascension Parish because
they believe that the airport site is a wetlands subject to
regulation under Section 404 of the Clean Water Act. They sued the
U.S. Army Corps of Engineers (the Corps) and the Ascension-St.
James Airport and Transportation Authority (the Airport Authority),
seeking declaratory and injunctive relief. The district court
granted summary judgment against the Plaintiffs, and the Plaintiffs
appeal. Background
In 1980, the prior owner of the Ascension Parish airport site
drained the land in preparation for agricultural use. Between 1980
and 1985, the prior owner devoted 80% of the land to agriculture
and farmed crawfish in ponds dug on the remaining 20% of the land.
The Airport Authority purchased the land in 1986 as the site for
the proposed airport.
On February 23, 1987, an agent for the Airport Authority
requested a wetlands jurisdictional determination by the Corps. In
a letter dated March 5, 1987, the Corps notified the agent that the
area was not subject to the Corps' regulatory authority under
Section 404 of the Clean Water Act, i.e., the area was not a
"wetlands," and the Airport Authority would not need a Section 404
permit prior to commencing construction of the airport.
On January 10, 1989, the Corps adopted the Federal Manual for
Identifying and Delineating Jurisdictional Wetlands (the Federal
Manual). On June 30, 1989, the Corps' Regulatory Branch in
Washington, D.C. issued a memorandum advising the regional
districts that it was developing a Regulatory Guidance Letter (RGL)
on the issue of "grandfathering" wetlands determinations issued
prior to the adoption of the Federal Manual. Under the draft
policy attached to the memorandum, a prior wetlands determination
would remain in effect if substantial resources had been expended
in reliance on the prior determination. This policy was later
formalized in RGL 90-6.
2 On January 5, 1990, Plaintiff-Appellant Save Ourselves, Inc.
requested a determination of whether the airport site was a
wetlands under the new Federal Manual. Following the
"grandfathering" policy, which was then still in draft form, the
Corps notified Save Ourselves that it would not reconsider its
prior wetlands determination because the Airport Authority had
expended substantial resources in reliance on the prior
determination.
Save Ourselves and several other nonprofit environmental
groups1 (Plaintiffs-Appellants herein) filed suit against the Corps
and the Airport Authority on July 11, 1990, seeking: first, a
declaration that the Corps' policy of grandfathering prior wetlands
determinations was invalid because it was not adopted in compliance
with the Administrative Procedures Act; second, a declaration that
the airport site was a wetlands subject to the Clean Water Act; and
third, an injunction against further dredging of the airport site.
The Airport Authority, however, continued construction on the
site. The Authority had the vegetation and topsoil removed, the
land filled, and the runway laid. According to a preliminary
report prepared by the Airport Authority, the Authority had
expended $5,310,990 on the construction of the airport as of
September 1990.
1 The other Plaintiff organizations are: Louisiana Environmental Action Network, Inc.; Citizens For A Clean Environment; Alliance Against Waste and Action to Restore the Environment; Ascension Parish Residents Against Toxic Pollutants; and East Iberville AWARE.
3 In December 1990, the Plaintiffs requested a preliminary
injunction and an expedited hearing on the injunction issue. The
district court disposed of the case, however, by granting the
Defendants' motion for summary judgment on the basis of mootness.
The Plaintiffs appealed.
Discussion
In its brief on appeal, the Corps raised for the first time
the issue of the Plaintiffs' standing to assert their claims. The
Plaintiffs claim disadvantage by the late assertion of this issue.
Standing, however, is a jurisdictional issue that must be
considered by this Court, regardless of whether it was raised in
the district court. See FW/PBS, Inc. v. City of Dallas, 110 S.Ct.
596, 607 (1990); Fairley v. Patterson, 493 F.2d 598, 603 (5th Cir.
1974).
The essence of the Plaintiffs' claim against the Corps is that
the airport site is a wetlands under 33 U.S.C. § 404 (as
interpreted by the new Federal Manual), and that the Corps' refusal
to make a redetermination of wetlands jurisdiction is final agency
action reviewable under 5 U.S.C. § 702. Section 702 provides that:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C. § 702 (1977). The Plaintiffs claim that they were
adversely affected or aggrieved by the Corps' abrogation of its
duty to declare the airport site a wetlands under 33 U.S.C. § 404,
the relevant statute in this case. In order to show adverse effect
or aggrievement, "the plaintiff must establish that the injury he
4 complains of (his aggrievement, or the adverse effect upon him)
falls within the 'zone of interests' sought to be protected by the
statutory provision whose violation forms the legal basis for his
complaint." Lujan v. National Wildlife Federation, 110 S.Ct. 3177,
3186 (1990).
In the Complaint filed in the district court, the Plaintiffs
state that they are organizations "interested in protecting and
preserving the clean water and public health in Ascension Parish,
Louisiana, the State of Louisiana, and the United States." It is
undisputed that this interest falls within the "zone of interests"
protected by the relevant provisions of the Clean Water Act. See
Lujan, 110 S.Ct. at 3187. The Plaintiffs have standing as
organizations or associations to protect this interest only if (1)
the interest is germane to the purposes of the Plaintiff
organizations, (2) any of the Plaintiff organizations' members have
standing to sue on their own behalf, and (3) the participation of
individual members in the lawsuit is not required. Hunt v.
Washington State Apple Advertising Commission, 97 S.Ct. 2434, 2441
(1977). The issue here is whether the Plaintiffs' failure to
allege any aggrievement more specific than the above-quoted
statement of interest prevents them from satisfying the second
prong of the requirements for establishing organizational standing.
In its recent decision in Lujan v. National Wildlife
Federation, the Supreme Court addressed this prong of
organizational standing under similar facts. See Lujan, 110 S.Ct.
3177 (1990). The National Wildlife Federation, a citizens'
5 environmental group, sued the Department of the Interior and the
Bureau of Land Management for alleged violations of various
environmental statutes occurring in the agencies' administration of
the federal land withdrawal program. Id. at 3182. The National
Wildlife Federation sought to protect its interest in "recreational
use and aesthetic enjoyment" of federal lands. Id. at 3187.
Responding to a motion for summary judgment on the issue of
standing, the Federation submitted affidavits of several of its
members, who claimed use and enjoyment of land "in the vicinity of"
federal lands affected by the withdrawal program. Id. at 3184-85.
The Court found that the facts alleged in these affidavits failed
to show an injury sufficiently specific to confer standing upon a
member of the organization, and thus the organizational plaintiff
did not have standing to assert its claim. Id. at 3187-89.
Applying Lujan to the present facts makes clear that Save
Ourselves and the other plaintiffs do not have standing to assert
their claim against the Corps. At no time during the proceedings
in the district court did the Plaintiffs allege specific facts
showing a direct injury to any of its members sufficient to confer
standing on the organizations under 5 U.S.C. § 702. The Plaintiffs
did not submit affidavits or any other evidence showing that its
members were affected by the Corps' refusal to exercise its
jurisdiction under the Clean Water Act. By the same token, the
Plaintiffs' failure to show aggrievement under the "relevant
statute"--here, the Clean Water Act--negates the Plaintiffs'
standing to pursue its claims against the Airport Authority under
6 the citizen suit provision of the Clean Water Act. See 33 U.S.C.
§ 1365(a).
In their reply brief on appeal, the Plaintiffs requested a
remand to the district court to allow the Plaintiffs an opportunity
to present affidavits or other evidence demonstrating their
standing to sue. Although we agree that remand for an opportunity
to correct the jurisdictional defect would generally be
appropriate, see Miller v. Stanmore, 636 F.2d 986, 990-92 (5th Cir.
Unit A 1981); 28 U.S.C. § 1653 (1966), we do not find remand to be
the appropriate relief in this case. In oral argument, Plaintiffs'
counsel stated that the Plaintiffs did not intend to pursue an
injunction against the completion of the airport if the case were
remanded to the district court. The Plaintiffs therefore do not
seek any remedy against the Airport Authority; their only "live"
claim is against the Corps, challenging the Corps' policy of
"grandfathering" prior wetlands determinations. However, the
future application of this policy is too contingent to present a
controversy ripe for judicial review. See American Paper
Institute, Inc. v. EPA, 882 F.2d 287 (7th Cir. 1989) ("Nothing but
grief could come of trying to review an 'enforcement policy'
without knowing how (or even whether) it would affect any plant.").
For the foregoing reasons, we AFFIRM the district court's
grant of summary judgment against the Plaintiffs in this case.