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.
2

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.
 

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

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.
4

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
5

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'
6

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
7

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.