United States of America, United States Army Corps of Engineers, Movant-Appellant v. City of Detroit

*531 ALAN E. NORRIS, Circuit Judge,

concurring in part and dissenting in part.

I fully concur in parts I, II, and 111(A) of the majority opinion, and I agree with some of the reasoning contained in the remaining portion of the opinion. I dissent, however, insofar as the majority opinion suggests that United States v. New York Telephone Co., 434 U.S. 159 , 98 S.Ct. 364 , 54 L.Ed.2d 376 (1977), controls this case. I also disagree with the remand. I would not remand the case to the district court for a determination of whether the Administrative Procedure Act (the “APA”) is applicable and, based on the record before us, I believe that we should hold that the decision to conduct environmental assessments was not arbitrary and capricious.

The majority opinion relies heavily on United States v. New York Telephone Co., 434 U.S. 159 , 98 S.Ct. 364 , 54 L.Ed.2d 376 (1977), in which the Supreme Court held that federal courts may use the All Writs Act to prevent third parties from frustrating a court order. Id. at 174 . New York Telephone is easily distinguishable on several grounds. First, the Court relied in part on the impossibility of the action there (the installation of pen registers to record telephone numbers called as part of criminal investigation) absent a court order compelling the telephone company to assist the FBI. Id. at 175 , 98 S.Ct. 364 . By contrast, in the instant case it is not clear that alternatives to immediate Corps acceptance of the dredged material were unavailable. Indeed, Detroit and Michigan also considered a plan to dewater the dredged material and then place it in a landfill. Detroit and Michigan shelved that plan in response to what the majority characterizes as “vigorous community opposition,” but which the City’s own brief to the district court reveals to have been driven in large part by the Bayview Yacht Club. Joint App. at 469-70. Clearly, Pointe Mouillee is not the only spot available to accept the dredged material; it is rather the most politically palatable location from the City’s point of view. Thus, Detroit may meet its obligations under the Clean Water Act without resort to Pointe Mouillee via the All Writs Act.

New York Telephone is also distinguishable because in the case at hand the consent judgment was negotiated by the parties, the obligations were not determined in an adjudication on the merits, and the United States was not a party to the judgment. The majority opinion argues that consent decrees can enforce the law in addition to private rights, and, when a consent decree enforces the law, the All Writs Act can be used to assert jurisdiction over third parties. This may well be true in limited circumstances. However, here the district court case did not rely on independent obligations in issuing its All Writs Act order but instead premised its authority on the enforcement of the consent judgment and the precedent of New York Telephone. In other words, the district court did not rely on an independent basis in the law for enforcing the consent decree against the Army Corps.

Such an independent basis figured prominently in New York Telephone. In holding that a third-party telephone company could be compelled via the All Writs Act to assist the FBI in installing pen registers to record telephone numbers called, the Court emphasized the statutory obligations of the telephone companies and the authority the FBI had to use pen registers:

As established ..., Congress clearly intended to permit the use of pen registers by federal law enforcement officials. *532 Without the assistance of the Company in circumstances such as those presented here, however, these devices simply cannot be effectively employed. Moreover, Congress provided in a 1970 amendment to Title III that “[a]n order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier ... shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively -” 18 U.S.C. § 2518 (4). In light of this direct command to federal courts to compel, upon request, any assistance necessary to accomplish an electronic interception, it would be remarkable if Congress thought it beyond the power of the federal courts to exercise, where required, a discretionary authority to order telephone companies to assist in the installation and operation of pen registers ....

New York Telephone, 434 U.S. at 176-77 , 98 S.Ct. 364 . Unlike the Supreme Court in New York Telephone , the district court relied on no statute or regulation that could be interpreted as requiring the Army Corps to accept the dredged material. The district court opinion merely noted that the Army Corps is not “legally precluded” from accepting these materials. United States v. Michigan, 122 F.Supp.2d 785, 791-92 (E.D.Mich.2000).

Section 123 of the Rivers and Harbors Act, which is applicable here, provides that “[a]ny spoil disposal facilities constructed under the provisions of this section shall be made available to Federal licensees or permittees upon payment of an appropriate charge for such use.” 33 U.S.C. § 1293a(g). The district court did not rely on this independent obligation, which, as the majority opinion notes, is circumscribed by statutes and regulations that either require or give the Army Corps discretion to conduct further environmental studies when accepting material. In addition, the Army Corps argues that it has broad discretion under the Rivers and Harbors Act to determine how to best make use of its facilities and the timing and quantities of disposal. I believe it would be inappropriate to determine the breadth of the Army Corps’ discretion under the Rivers and Harbors Act here. Those factors should have been addressed below, by the district court, in a proceeding under the APA, not the All Writs Act.

This brings me to an important recent Supreme Court decision concerning the All Writs Act. In Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 , 123 S.Ct. 366 , 154 L.Ed.2d 368 (2002), the Court strongly implied that the All Writs Act may not be applied to situations where other procedures are adequate. In Syngenta, a federal district court used the All Writs Act to order a state court to transfer a case to its jurisdiction. In a unanimous opinion, the Court held as follows:

[Petitioners] argue that the Act comes into play here because maintenance of the Henson action in state court in Louisiana frustrated the express terms of [a previous settlement in federal court], which required that “any and all claims” in Henson be dismissed.

But Pennsylvania Bureau [of Correction v. United States Marshals Service, 474 U.S. 34 , 106 S.Ct. 355 , 88 L.Ed.2d 189 (1985),] made clear that “[w]here a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” 474 U.S. at 43 , 106 S.Ct. 355 , 88 L.Ed.2d 189 . The right of removal is entirely a creature of statute and “a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress.” These *533 statutory procedures are to be strictly construed. Petitioners may not, by resorting to the All Writs Act, avoid complying with the statutory requirements for removal.

Id. at 369-70 (citations omitted). 1

In the instant case, the Army Corps’ required duties and discretionary options are governed by statute as are the processes Michigan and Detroit must take to challenge them. The APA provides that upon petition a district court may “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706 . An arbitrary and capricious decision could also be set aside. Id. As the Army Corps repeatedly emphasized in its brief, the appropriate procedure here is to permit it an opportunity to subject the request to use its holding facilities to the full environmental and public interest review. If the Army Corps ultimately denies the dumping permit, if the Army Corps does not conduct the environmental assessment in a timely manner, or if Detroit and Michigan disagree with the results of the Army Corps’ environmental assessment, a case could proceed against the Army Corps under the APA. See United States v. San Juan Bay Marina, 239 F.3d 400, 407 (1st Cir.2001) (holding that the APA is the “proper avenue” for reviewing the denial of Rivers and Harbors Act permits). 2 Indeed, absent the Army Corps’ claim of sovereign immunity, both parties are in agreement that the APA could be used to challenge the Army Corps’ decisions in this matter. I believe that Syngenta mandates that Detroit and Michigan proceed under the procedures established by the APA, and not the All Writs Act. See also Clinton v. Goldsmith, 526 U.S. 529, 537-39 , 119 S.Ct. 1538 , 143 L.Ed.2d 720 (1999) (noting that the All Writs Act “invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law” and discussing the possible alternative route provided in that case by the APA).

The district court explicitly stated that it was not relying on the APA for its jurisdic *534 tion. United States v. Michigan, 122 F.Supp.2d at 789-90. In doing so, it essentially reviewed the Army Corps’ decisions under a de novo standard. As the Supreme Court has made clear, agency judgements such as these are entitled to considerable deference, and the court should not substitute its judgment for that of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971). As the APA itself informs us, an agency action should be set aside only if arbitrary and capricious or unlawful. 5 U.S.C. §§ 702 , 706. I believe that the district court’s resort to the All Writs Act led it to apply the incorrect standard of review to the Army Corps’ decisions. This is precisely why it is important that the action be brought in the proper form.

While the majority opinion remands to the district court for a determination of whether there are “exceptional circumstances” that would render the APA inadequate, no such circumstances are apparent to me and no such findings were made by the district court. In addition, in light of Syngenta, it is not clear if such an exception continues to exist in a case in which a statute clearly governs the required procedures. Because of this, and in light of both parties’ agreement that the APA is applicable, I see no need for the district court to determine the essentially legal question of whether the APA is applicable.

I now turn to the issue of the environmental assessments. Pointe Mouillee’s previous EIS was prepared in 1974 and does not specify a maximum level of toxicity other than that provided by the Toxic Substances Control Act. In addition, the Army Corps has shown that the levels of certain toxins in the dredged material are several times greater than in materials it typically accepts. These facts strongly suggest that an Environmental Assessment is required under the regulations. 33 C.F.R. § 230.7 (d). Even if an Environmental Assessment is not required, further study may be undertaken at the Army Corps’ discretion. 40 C.F.R. § 1502.9 (c)(2). While I agree with the majority that the district court may review a discretionary decision to conduct supplemental studies based on an “arbitrary and capricious” standard under Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989), I believe that the agency should be accorded great deference when it decides to conduct further study. After all, it is only further study that could inform us of the real environmental consequences. Therefore, I believe that on the record before us, we may conclude that at the very least it was not arbitrary and capricious for the Army Corps to make further environmental study. Indeed, it may be required to do so. 3

For these reasons, I would vacate the order of the district court and permit an appropriate challenge to be brought under the APA if the Army Corps ultimately denies a permit or if the Army Corps does not act in a timely fashion.

. It is worth noting that Syngenta also called the authority of New York Telephone into question. The Court in Syngenta declined to expressly overrule New York Telephone , although it clearly limited its application. Justice Stevens, in a concurring opinion, noted that:

[T]he decisions of the Courts of Appeal that we disapprove today have relied in large part on our decision in United States v. New York Telephone. ... Because the overly expansive interpretation given to the All Writs Act in New York Telephone may produce further mischief, I would expressly overrule that misguided decision.

123 S.Ct. at 371 (Stevens, J., concurring). I see no reason to discuss the impact of Syngen-ta on New York Telephone further because I am confident that, based on the analysis above, this case does not even fall within an expansive reading of New York Telephone .

. At least two other circuits have also held that actions taken by the Army Corps under the Rivers and Harbors Act are generally reviewable under the APA. See Bankers Life & Cas. Co. v. Callaway, 530 F.2d 625, 631 (5th Cir.1976) ("Since the dredge and fill permit underlying this controversy was issued pursuant to the Rivers and Harbors Act ... our first question is whether Congress intended to preclude judicial review under that statute .... [W]e hold that agency action under that Act is reviewable.”); Citizens Comm, for the Hudson Valley v. Volpe, 425 F.2d 97 , 101 (2nd Cir.1970) ("The district court properly relied on the presumption of reviewability embodied in the Administrative Procedure Act where there was no evidence of a congressional intent to prohibit review in the Rivers and Harbors Act.”). See also Ocean Advocates v. U.S. Army Corps of Engineers, 167 F.Supp.2d 1200, 1203 (W.D.Wash., 2001) (reviewing the Army Corps' actions under the APA for compliance with the National Environmental Policy Act and the Rivers and Harbors Act).

. Judge Moore's opinion concurring in part and dissenting in part makes a persuasive case, based on the evidence in the record, that an Environmental Assessment is in fact required by law. I do not reach this issue because I believe that it is enough to conclude that the Army Corps did not abuse its discretion in deciding further study was warranted, and, as such, the district court may not use the All Writs Act to bypass the Army Corps' discretion.