Posted on December 28, 2011 by George House
In Village of Bald Head Island v. U.S. Army Corps of Engineers, plaintiff Village of Bald Head Island and intervenor North Carolina beach communities sought to compel the U.S. Army Corps of Engineers to implement the Wilmington Harbor Dredging Project and to deposit beach quality dredged spoils on nearby beaches. The court dismissed the case on the ground that implementation decisions made by the Corps in the course of performing a project are not final agency actions reviewable by a federal court.
As part of its planning of the harbor deepening project, the Corps first performed an environmental assessment (EA) pursuant to the National Environmental Policy Act (NEPA) in 1996, and modified the EA in 2000 due to changes in the project. In response to community objections, the Corps committed to certain measures to protect the adjacent beaches from excessive erosion. These measures were incorporated into the EA, the Coastal Zone Management Act Consistency Determination, and the Finding of No Significant Impact (FONSI).
For ten years the Corps generally complied with the Commitments. When budget constraints in 2010 and 2011 caused work to be delayed the Village of Bald Head Island brought an action under the Administrative Procedure Act (APA) seeking a mandatory injunction to force dredging and disposal this winter and thereby prevent erosion from harming homes and Village infrastructure.
The APA allows a Court to review “final” agency actions, including failures to act when there is a duty to act: 5 U.S.C. §§ 701(b)(2) and 551(13). The Court determined that the Corps’ Commitments were not final agency actions that can be challenged or enforced under the APA. Instead, notwithstanding the specific Commitments the Corps had made, the Court characterized the Corps’ decision of when to dredge or when to prepare studies as implementation decisions.
The Plaintiff and the other beach communities filed a Notice of Appeal to the Fourth Circuit on December 9, 2011, contesting the district court’s holding that the Corps’ method of implementing the project is discretionary and unreviewable. Appellants contend that the Corps must either implement the Project in a manner consistent with the FONSI and the Commitments, or perform another environmental review.