Raymond Proffitt Foundation; Lehigh River Stocking Assn. v. U.s. Army Corps of Engineers

PRECEDENTIAL
Filed September 3, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3565
RAYMOND PROFFITT FOUNDATION;
LEHIGH RIVER STOCKING ASSN.,
Appellants
v.
U.S. ARMY CORPS OF ENGINEERS;
DEBRA M. LEWIS, LT. COL.,
DISTRICT COMMANDER
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 99-cv-04038)
District Judge: The Honorable Anita B. Brody
Argued: July 9, 2003
Before: NYGAARD, SMITH, Circuit Judges, and
IRENAS, District Judge*
(Filed: September 3, 2003)
John Wilmer (argued)
21 Paxon Hollow Road
Media, PA 19063
COUNSEL FOR APPELLANTS
* Honorable Joseph E. Irenas, Senior United States District Judge for the
District of New Jersey, sitting by designation.

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Karen L. Tomlinson
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Anna T. Katselas (argued)
United States Department of Justice
Environment & Natural Resources
Division
P.O. Box 23795
L’Enfant Plaza Stations
Washington, D.C. 20026
Silvia Sepulveda-Hambor
United States Department of Justice
Environment & Natural Resources
Division
601 D Street, N.W.
Third Floor, Room 3120
Washington, D.C. 20004
COUNSEL FOR APPELLEES
OPINION OF THE COURT
SMITH, Circuit Judge.
The Raymond Proffitt Foundation and the Lehigh River
Stocking Association (collectively, the “Foundation”) appeal
from an order of the Eastern District of Pennsylvania
granting summary judgment to the U.S. Army Corps of
Engineers (“Corps”). The District Court concluded that the
Water Resources Development Act of 1990 (“WRDA”), the
statute the Foundation asserts the Corps is violating,
provides no “law to apply” to the facts this case presents
and that the Corps’ actions are therefore not subject to
judicial review under the Administrative Procedures Act, 5
U.S.C. § 500 et seq. (“APA”). Although we disagree with that
specific holding of the District Court, the broad deference
that Congress granted the Corps in executing the
environmental mission of the WRDA places upon us the
obligation to provide a correspondingly deferential judicial
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review. Granting the Corps that deference, we conclude that
the Foundation has failed to demonstrate that the Corps
has unlawfully delayed or withheld agency action or
otherwise been arbitrary, capricious, or in violation of law.
We will affirm the District Court’s grant of summary
judgment.
I.
The Raymond Proffitt Foundation and the Lehigh River
Stocking Association are organizations whose members
fish, hunt, boat, raft, and otherwise recreate in and along
the Lehigh River downstream of the Francis E. Walter Dam
(“Walter Dam”) in Northeastern Pennsylvania. The Walter
Dam is operated by the Philadelphia District of the Corps
as part of the Lehigh River Basin Flood Control Project.
Completed in 1961, Congress originally authorized
construction of the Walter Dam primarily for flood control,
but later expanded the mission of the Walter Dam in 1988,
requiring it to be “operated in such a manner as will protect
and enhance recreation.” Water Resources Development Act
of 1988, Pub. L. No. 100-676, § 6, 102 Stat. 4012 (1988).
Congress subsequently enacted the Water Resources
Development Act of 1990. Section 306 of this Act required
the inclusion of “environmental protection as one of the
primary missions of the Corps of Engineers in . . .
operating, and maintaining water resources projects.”
WRDA of 1990 § 306, 33 U.S.C. § 2316 (1994).
In 1994, the Corps issued a “Revised Manual” presenting
a plan of regulation for the Walter Dam. In this manual, the
Corps noted that “[t]his dam, along with Beltzville Lake
Dam and Reservoir (Corps of Engineers project) are the only
major reservoirs in the Lehigh River watershed intended to
serve flood control purposes.” The Corps stated that the
“primary objective of the F.E. Walter Reservoir Project is
flood control. Other objectives are lake and downstream
recreation (whitewater) and drought emergency water
supply/water quality storage.”
In establishing the water control plan for the Walter
Dam, the Corps stated that:
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Releases made to meet minimum release criteria will be
sufficient to maintain and enhance downstream
fisheries. Criteria has [sic] been developed to avoid
abrupt gate raising and closing changes during above
normal releases for flood control regulations. Efforts
will be made to make releases so as to minimize
adverse shock effects on downstream fisheries.
Nonetheless, the Corps believed “[w]ater control
management needs must take precedence over fishery
accommodation but the attempt should be made to adjust
procedures for fishery purposes whenever possible.”
Assessing the overall effect of the water control plan, the
Corps concluded the “Francis E. Walter Reservoir provides
good habitat for fisheries. The reservoir, and the Lehigh
River (below the dam), are listed as High Quality-Cold
Water Fisheries in Pennsylvania (Chapter 93 Water Quality
Standards).”
In August of 1999, the Foundation filed a twelve count
complaint against the Corps and its Philadelphia District’s
Commander in the District Court. Jurisdiction was
appropriate pursuant to 28 U.S.C. § 1331. Count one of the
complaint, brought pursuant to the Administrative
Procedures Act, 5 U.S.C. § 706, asserted that the Corps was
unlawfully withholding or delaying agency action required
by § 306 of the WRDA and otherwise not acting in
accordance with the WRDA. The Foundation alleged that
these violations stemmed from two actions or inactions on
the part of the Corps. First, the Foundation asserted the
Corps failed to include “environmental protection” as one of
the “missions” for the Walter Dam in the drafting of the
1994 Manual. Supp. App. 8 (Pls.’ Compl. ¶¶ 50-52). Second,
the Foundation claimed:
[t]he Corps is not fulfilling, or even attempting to fulfill
its mission of environmental protection because it a)
releases large amounts of water during high flow
periods, usually in winter and spring; and b) fails to
store water during these high flow periods and release
that water during low flow periods, usually summer.
Id. (Pls.’ Compl. ¶ 53).
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Presently, the Corps’ basic operational rule for the Walter
Dam is that during normal conditions the Corps will match
the dam’s outflow to its inflow. Thus, the Corps generally
keeps the amount of water in the Walter Dam’s reservoir at
a constant elevation of 1300 feet, thereby attempting to
replicate in the lower Lehigh River below the dam the flow
that would be naturally present if the Walter Dam had not
been constructed above. During the wetter winter and
spring months, more water enters the reservoir from
rainfall and melting snow. The Corps therefore releases
more water from the dam, resulting in a higher water flow
and river level below. During drier summer months, as less
water falls and drains into the reservoir, the Corps releases
less water from the reservoir. This results in a
correspondingly lower flow and river level below.1
The Foundation believes that, so as to “provide a better
environment for aquatic species, provide recreation for
fisherman [sic], canoeists, and provide whitewater rafting
throughout the summer,” the Corps is “required” by the
WRDA to improve upon the naturally occurring
environment by augmenting the lower Lehigh River’s flows
in the summer. The Foundation therefore sought
declaratory and injunctive relief mandating the Corps to
change its policy and operations at the Walter Dam to
reflect the judgments of the Foundation regarding the
proper operation of the dam. The Corps responded to this
first claim by asserting that § 306 of WRDA is a mission
statement which is fundamentally discretionary in nature,
committed to the agency by law, and unreviewable through
the APA.
The District Court granted summary judgment to the
Corps on all of the Foundation’s claims, holding with
respect to count one that the Corps’ actions under the
1. The Corps’ policy is not to fully replicate in the river below the same
flow that would result if the dam had never been built. Obviously, as a
flood control project, the outflows from the Walter Dam reservoir will be
constrained when necessary to prevent downstream flooding.
Furthermore, in accordance with the project’s secondary recreational
purpose, the Corps’ policy is to raise the reservoir’s level 0.7%, five times
a year, to facilitate whitewater rafting events on the river below. The
Foundation does not assert that either of these practices are unlawful.
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WRDA were unreviewable because the WRDA did not
provide any “law to apply” to this situation. Raymond
Proffitt Found. v. U.S. Army Corps of Eng’rs, 175 F. Supp.
2d 755, 767 (E.D. Pa. 2001).2 The District Court reasoned
that the WRDA’s “environmental protection mission was
placed upon the Corps as a whole, not upon each
individual water resources project. The Corps has the
discretion to apply this statutory mission to water
resources projects that it operates, but is not obligated to
implement it at any particular one.” Id. at 767. “The text of
§ 2316 provides only a general statement that establishes
environmental protection as one of the Corps’ primary
missions. However, this language gives no guidance on how
this mission is to be carried out.” Id. at 766. Therefore, the
District Court reasoned that this statute fit within the
exception from reviewability applied by the Supreme Court
in Heckler v. Chaney, 470 U.S. 821 (1985).
The Foundation appealed only from the District Court’s
judgment on count one that “[t]he mission statement of
§ 2316 is insufficient to provide law to apply in this case”
and that the Foundation can, therefore, assert no violation
of the WRDA through the APA. 175 F. Supp. 2d at 767.
Jurisdiction is proper in this Court pursuant to 28 U.S.C.
§ 1291. “Our scope of review of the district court’s decision
on” whether “judicial review was . . . available pursuant to
5 U.S.C. § 701(a)(2)” and whether the agency action was not
“in accordance with law . . . is plenary.” See Davis Enters.
v. U.S. E.P.A., 877 F.2d 1181, 1184 (3d Cir. 1989).
However, where Congress has granted discretion to an
agency to make decisions, “[w]e are only free to determine
whether the agency followed its own guidelines or
committed a clear error of judgment.” Id. at 1186 (citing
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971)). “While we may not have made the same
2. The District Court also granted summary judgment on the
Foundation’s other eleven claims. Worth noting is that the District Court
dismissed the claims that the Corps was violating the federal Clean
Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) at
the Walter Dam. As noted infra, the Foundation did not appeal from the
dismissal of those claims.
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decision as the [agency], we are not free to substitute our
judgment for that of the agency on [an] issue.” Id.
II.
Section 306 of the WRDA states: “The Secretary [of the
Army] shall include environmental protection as one of the
primary missions of the Corps of Engineers in planning,
designing, constructing, operating, and maintaining water
resources projects.” 33 U.S.C. § 2316(a).3 In the event that
an administrative agency covered by the strictures of the
APA violates a statute, the APA 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. Both “[a]gency action made reviewable by
statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.”
5 U.S.C. § 704. In such an instance, the “reviewing court
shall — (1) compel agency action unlawfully withheld or
unreasonably delayed; and (2) hold unlawful and set aside
agency action, findings, and conclusions found to be — (A)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; . . .” § 706. However, “[t]his
chapter” does not “apply . . . to the extent that— (1)
statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law.” § 701(a). The Corps
does not contend that the WRDA facially precludes judicial
review. Rather, the Corps contends that the agency actions
with which the Foundation is concerned are impliedly
“committed to agency discretion by law.” § 701(a)(2).
A.
“The APA’s ‘generous review provisions must be given a
“hospitable” interpretation.’ ” Hondros v. U.S. Civil Service
Comm’n, 720 F.2d 278, 293 (3d Cir. 1983) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 141 (1967)). “[O]nly upon
3. Nonetheless, the WRDA provides that “[n]othing in this section affects
— (1) existing Corps of Engineers’ authorities, including its authorities
with respect to navigation and flood control. . .” 33 U.S.C. § 2316(b).
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a showing of ‘clear and convincing evidence’ of a contrary
legislative intent should the courts restrict access to
judicial review.” Abbott Labs., 387 U.S. at 141 (quoting
Rusk v. Cort, 369 U.S. 367, 379 (1962)). “In Citizens to
Preserve Overton Park, Inc. v. Volpe, . . . the Supreme Court
interpreted section 701(a)(2) as establishing a broad
presumption in favor of reviewability, holding that the
exception applied only when there is no law to apply.” Davis
Enters., 877 F.2d at 1184-85. In Heckler v. Chaney, 470
U.S. 821 (1985), the Supreme Court first found occasion to
apply this exception.
Heckler considered whether “a decision of an
administrative agency to exercise its ‘discretion’ not to
undertake certain enforcement actions is subject to judicial
review under the Administrative Procedure Act, 5 U.S.C.
501 et seq. (APA).” Id. at 823. The petitioners were prison
inmates sentenced to death by lethal injection who asserted
that the use of those “drugs for capital punishment violated
the Federal Food, Drug, and Cosmetic Act . . . and
request[ed] that the FDA take various enforcement actions
to prevent these violations.” Id.
Noting that “[t]he Act’s general provision for enforcement,
372, provides only that ‘[t]he Secretary is authorized to
conduct examinations and investigations . . .’ (emphasis
added),” id. at 835 (emphasis in original), the Supreme
Court reasoned the “Act’s enforcement provisions thus
commit complete discretion to the Secretary to decide how
and when they should be exercised.” Id. The Court
emphasized that the “general exception to reviewability
provided by § 701(a)(2) for action ‘committed to agency
discretion’ remains a narrow one, see Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971), but within that exception are included
agency refusals to institute investigative or enforcement
proceedings, unless Congress has indicated otherwise.” Id.
at 838.
Since Heckler, the Supreme Court has extended its
holding to other contexts, concluding that other agency
decisions were “committed to agency discretion by law.” 5
U.S.C. § 701(a)(2). In Webster v. Doe, 486 U.S. 592 (1988),
an employee contested his dismissal by the CIA’s Director
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pursuant to § 102 of the National Security Act. That Act
provided that the “ ‘Director of Central Intelligence may, in
his discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such
termination necessary or advisable in the interests of the
United States. . . .’ ” Id. at 594 (quoting 50 U.S.C. § 403(c)
(current version at 50 U.S.C. § 403-4(h))). The Court found
“that the language and structure of § 102(c) indicate that
Congress meant to commit individual employee discharges
to the Director’s discretion, and that § 701(a)(2) accordingly
precludes judicial review of these decisions under the APA.”
Id. at 601.
The petitioners in I.C.C. v. Brotherhood of Locomotive
Engineers, 482 U.S. 270 (1987) sought to appeal the
Interstate Commerce Commission’s denial of
reconsideration of an earlier administrative decision solely
on what the petitioners asserted had been a “material
error.” The statute provided that the “ ‘Commission may . . .
because of material error, new evidence, or substantially
changed circumstances . . . (B) grant rehearing.’ ” Id. at
277-78 (quoting 49 U.S.C. § 10327(g) (current version at 49
U.S.C. § 722(c))). The Court reasoned that because there
was no “new evidence” or “changed circumstances” alleged
to the I.C.C. after it issued the original order,
an appeal [of the order denying reconsideration vis-a-
vis an appeal from the original order] places before the
courts precisely the same substance that could have
been brought there by appeal from the original order—
but asks them to review it on the strange, one-step-
removed basis of whether the agency decision is not
only unlawful, but so unlawful that the refusal to
reconsider it is an abuse of discretion.
Id. at 278-79. The Supreme Court reasoned that the appeal
was, or would become, a mechanism for evading the statute
of limitations applicable to a challenge of the original order
and decided that the reconsideration denial was therefore
“unreviewable” unless one of the two other bases for
reconsideration are asserted. Id. at 279-80. Later, the
Supreme Court also held that the “allocation of funds from
a lump-sum appropriation is another administrative
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decision traditionally regarded as committed to agency
discretion.” Lincoln v. Vigil, 508 U.S. 182, 192 (1993).
To date, the Supreme Court has only applied the Heckler
exception on an ad hoc basis. Nonetheless, this Court has
set forth [an] analytical framework to be followed before
the court may determine that an agency decision is
unreviewable under section 701(a)(2). To so hold, we
must consider whether: 1) the action involves broad
discretion, not just the limited discretion inherent in
every agency action; 2) the action is the product of
political, military, economic, or managerial choices that
are not readily subject to judicial review; and 3) the
action does not involve charges that the agency lacked
jurisdiction, that the decision was motivated by
impermissible influences such as bribery or fraud, or
that the decision violates a constitutional, statutory, or
regulatory command.
Davis Enters., 877 F.2d at 1185 (citing Local 2855, AFGE
(AFL-CIO) v. United States, 602 F.2d 574 (3d Cir. 1979))
(citations omitted). In Local 2855, when we first articulated
this framework and applied it to hold an agency action
unreviewable, a union challenged the Army’s decision to
contract out certain services to a private contractor.
“[O]bserv[ing] that the statute is, for the most part, ‘written
in language of permission and discretion,’ ” the panel
reasoned that “on the face of the statute there is simply ‘no
law to apply’ in determining if [the] decision is correct.”
Local 2855, 602 F.2d at 581 (quoting Southern Ry. Co. v.
Seaboard Allied Milling Corp., 442 U.S. 444, 455 (1979);
Overton Park, 401 U.S. at 410).
Applying the foregoing principles, the District Court erred
in concluding that the WRDA falls within the APA’s
exception from reviewability contained in § 701(a)(2)
because the WRDA does not contain “law to apply.” Proffitt
Founds., 175 F. Supp. 2d at 767. There can be no doubt
that the text of § 306 grants the Corps very broad
discretion. However, “[b]road discretionary powers” are
merely “[a] predicate to nonreviewability.” Local 2855, 602
F.2d at 578. The “committed to agency discretion exception
to judicial review is intended to be ‘applicable in those rare
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instances where statutes are drawn in such broad terms
that in a given case there is no law to apply.’ ” Id. at 578-79
(quoting Overton Park, 401 U.S. at 410 (internal citation
omitted)) (emphasis added). In count one, the Foundation
alleges two separate actions by the Corps which
purportedly violate the WRDA. We consider, in turn,
whether each of these agency actions are subject to judicial
review.
B.
The Foundation first alleges that the Corps failed to take
action to include “environmental protection” as one of the
“missions” for the Corps both overall and specifically at the
Walter Dam. The statute at issue certainly provides law
against which we can consider those allegations. While it
appears that the broad language of the WRDA means that
few actions the Corps takes with respect to any particular
water resources project will violate the APA, the WRDA
clearly imposes an affirmative obligation to “include
environmental protection as one of the primary missions of
the Corps of Engineers in planning, designing,
constructing, operating, and maintaining water resources
projects.” 33 U.S.C. § 2316(a).4 The one common thread
running through the Supreme Court and Third Circuit
precedents in this area is that where an agency’s assertion
that a decision “committed to agency discretion by law” has
been upheld, “on the face of the statute there is simply ‘no
law to apply’ in determining if [a] decision is correct.” Local
2855, 602 F.2d at 581 (emphasis added). See, e.g., Heckler,
470 U.S. at 835 (“ ‘[t]he Secretary is authorized to conduct
examinations and investigations . . .’ (emphasis added)”)
4. We note that, in actuality, the text of § 306 does not facially impose
any duty on the Corps of Engineers. See 33 U.S.C. § 2316(a) (“The
Secretary [of the Army] shall include . . .”); see also 33 U.S.C. § 2201
(defining the “Secretary”). The Secretary of the Army was not made a
defendant in this suit. Nonetheless, the parties, as well as the District
Court, all appear to have assumed that § 306 also imposes a direct duty
on the Corps of Engineers, disputing only whether the execution of that
duty is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).
Therefore, we assume, without deciding, that § 306 applies equally to the
Corps.
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(emphasis in original); Webster, 486 U.S. at 594 (the
“ ‘Director of Central Intelligence may, in his discretion,
terminate the employment . . . whenever he shall deem
such termination necessary . . .’ ”) (emphasis added);
Locomotive Eng’rs, 482 U.S. at 277-78 (the “ ‘Commission
may . . . grant rehearing’ ”) (emphasis added); cf. Lincoln,
508 U.S. at 185 (“the Snyder Act authorizes the Service to
‘expend such moneys as Congress may from time to time
appropriate, for the benefit, care, and assistance of the
Indians,’ ” through “lump-sum appropriations”); Local 2855,
602 F.2d at 581 (“we observe that the statute is, for the
most part, ‘written in language of permission and
discretion.’ ”). Nonetheless, that is not dispositive. Where a
statute itself has been permissive or discretionary as to the
agency, this Court has even read an agency’s self-imposed
practices or regulations into the statute so as to provide a
basis for review. See, e.g., Hondros v. U.S. Civil Service
Comm’n, 720 F.2d 278, 294 (3d Cir. 1983) (the “Service has
a regularized method for evaluating its employees” against
which the employee’s service could be compared); Davis
Enterps., 877 F.2d at 1185 (the “agency regulations or
internal policies provide sufficient guidance to make
possible federal review under an abuse of discretion
standard . . . even absent express statutory limits on
agency discretion.”).
In contrast, the statute at issue here states that the
“Secretary shall include environmental protection as one of
the primary missions of the Corps of Engineers in planning,
designing, constructing, operating, and maintaining water
resources projects.” 33 U.S.C. § 2316(a) (emphasis added).
Unlike other statutes where courts have found decisions
committed to agency discretion by law, this statute is not
“written in language of permission and discretion.” See
Local 2855, 602 F.2d at 581.5 The statute requires the
consideration of environmental protection when “operating,
and maintaining water resources projects.” See § 2316(a).
The Corps admits as much in its brief, stating that the
“sole ‘command’ identified by Proffitt under this criterion is
5. Neither the Corps nor the Foundation cite to a case where a “shall”
statute such as the WRDA has been held to grant unreviewable
discretion to an agency.
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Section 306 itself.” Corps Br. at 26. Certainly, how the
Corps implements this environmental protection mission
appears to be left to the vast discretion of the Corps. There
is, however, no discretion granted to the Corps on the issue
of whether or not they are supposed to include
environmental protection as a mission. They are.
Section 306 also fails the specific analytical test this
Court established in Local 2855, and reaffirmed post-
Heckler in Davis Enterprises, for determining whether a
given decision is committed to agency discretion by law.
While the Corps’ actions under the WRDA appear to meet
two of that test’s three factors, they completely fail the last.
“[T]he action [by the Foundation] does . . . involve charges
that the agency . . . decision violates a constitutional,
statutory, or regulatory command.” See 877 F.2d at 1185
(emphasis added).
In sum, the District Court erred in concluding that the
WRDA provides no “law to apply” to the Foundation’s first
allegation that the Corps failed to include environmental
protection as one its overall missions and as one of the
specific missions of the Walter Dam. Raymond Proffitt
Found., 175 F. Supp. 2d at 767. There is law to apply. As
the Corps itself effectively conceded at oral argument,
where the Corps has “completely abdicated its
environmental protection responsibilities,” then “this
statute, broad as it is, provides law to apply.” Because the
Foundation’s complaint makes such allegations, we are free
to review the Corps’ actions to determine its compliance
with § 306.
C.
In addition to its allegations that the Corps is not
including environmental protection as part of its “missions,”
the Foundation asserts that, by its actions in the actual
operation of the Walter Dam, the “Corps is not fulfilling, or
even attempting to fulfill its mission of environmental
protection.” Nonetheless, just because the Foundation’s
first allegation of unlawful agency action under § 306 is
amenable to judicial review, it does not necessarily follow
that all of its allegations pursuant to that statute are
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subject to judicial review. In Lincoln v. Vigil, 508 U.S. 182,
191 (1993), the Supreme Court established that while
agency action pursuant to a general Congressional
authorization may be amenable to judicial review in a broad
sense, certain specific “categories of administrative
decisions that courts traditionally have regarded as
‘committed to agency discretion’ ” may not be reviewable
within the context of that broader mandate. Lincoln
addressed a challenge by an Indian tribe to certain specific
expenditures of the Indian Health Service within the
context of a lump-sum appropriation from Congress. That
appropriation “authorize[d] the Service to ‘expend such
moneys as Congress may from time to time appropriate, for
the benefit, care, and assistance of the Indians,’ for the
‘relief of distress and conservation of health.’ ” Id. at 185
(quoting 25 U.S.C. § 13).
Generally, an aggrieved party can bring an action to
challenge an agency’s expenditures as inconsistent with the
“permissible statutory objectives” for which Congress
appropriated the funds. See id. at 193; see also Morton v.
Ruiz, 415 U.S. 199 (1974) (considering whether the Bureau
of Indian Affair’s implementation of its general assistance
program was consistent with Congressional intent in
appropriating the program funds).6 Nonetheless, Lincoln
stands for the principle that once that initial level of judicial
review is passed, the specific execution by the agency to
meet those objectives may still be left entirely within its
discretion. The Lincoln Court held that the APA precluded
judicial review of the specific allegations of those plaintiffs,
reasoning that the “allocation of funds from a lump-sum
appropriation is another administrative decision
traditionally regarded as committed to agency discretion.
After all, the very point of a lump-sum appropriation is to
give an agency the capacity to adapt to changing
circumstances and meet its statutory responsibilities in
what it sees as the most effective or desirable way.” Lincoln,
508 U.S. at 192. “[A]s long as the agency allocates funds
from a lump-sum appropriation to meet permissible
statutory objectives, § 701(a)(2) gives the courts no leave to
6. This assumes, of course, that a plaintiff meets all jurisdictional and
administrative prerequisites for bringing such a claim.
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intrude. ‘[T]o [that] extent,’ the decision to allocate funds ‘is
committed to agency discretion by law.’ ” Id. at 193 (quoting
5 U.S.C. § 701(a)(2)).
As part of its allegations that the specific operational
policies of the Corps violate § 306, the Foundation
apparently reads § 306 to prohibit the Corps from
implementing at each and every water resources project
under its administration any policies “causing harm to the
aquatic life.” Foundation Br. at 9. However, the WRDA
states only that the “Secretary shall include environmental
protection as one of the primary missions of the Corps . . .
[at] water resources projects.” 33 U.S.C. § 2316(a)
(emphasis added). Congress did not clearly instruct the
agency to “implement” that mission at any specific water
resources project, let alone suggest how it should do so.
Because § 306 provides “no objective standards” that
“dictate how the Agency must implement this mission or
how it must balance [environmental protection] with its
other responsibilities,” the Corps argues that § 306
“properly committed to the Corps’ discretion” any
judgments regarding the implementation of that mission.
We need not conclusively decide the proper interpretation
of § 306 to determine whether the exception to review
contained in APA § 701(a)(2) applies to these allegations.
Before us now are not the merits of the Foundation’s
allegations, but whether judicial review of these specific
actions is precluded because “on the face of the statute
there is simply ‘no law to apply.’ ” Local 2855, 602 F.2d at
581. Courts cannot preclude judicial review simply because
a party appears likely to lose on the merits. That would put
the cart before the horse. Rather, in determining whether
judicial review is available in the first instance, we look for
“ ‘clear and convincing evidence’ of a contrary legislative
intent” before we will “restrict access to judicial review.”
Abbots Labs, 387 U.S. at 141 (quoting Rusk v. Cort, 369
U.S. 367, 379-80 (1962)). We will now consider § 306 only
that far.
Compared to some of the more affirmative instructions
Congress has given the Secretary and the Corps in later
sections of the WRDA,7 Congress’ use of the phrase “include
7. See, e.g., WRDA of 1990 § 307(b), 33 U.S.C. § 2317(b) (“The project
under this subsection shall be carried out to improve the quality of
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. . . as one of the primary missions” in § 306 if that phrase
really is to mean “implement to the fullest at every” water
resources project, as the Foundation suggests, strikes us as
peculiar. See Whitman v. Am. Trucking Assoc., 531 U.S.
457, 466 (2001) (“Words . . . are given content, however, by
their surroundings”). It would seem more than peculiar,
however, to suggest that the Corps can simply develop a
generic environmental mission statement and proceed to
completely ignore it at every water resources project it
administers. But see Nat’l Treasury Employees Union v.
Horner, 854 F.2d 490, 495 (D.C. Cir. 1988) (Congress may
be “indifferent to the choices an agency makes, within a
sphere of action delegated to it, and . . . reserve oversight
exclusively to itself by precluding judicial review”). Granted,
requiring the Corps to “include” an environmental
protection “mission” does not seem to demand much of the
Corps. Arguably then, it may be contrary to Congressional
intent for the judiciary to examine whether anything the
Corps does, beyond the mere consideration of
environmental protection as part of its overall mission,
violates this statute. See Lincoln, 508 U.S. at 194 (“The
reallocation of agency resources to assist handicapped
Indian children nationwide clearly falls within the Service’s
statutory mandate” generally, but the specific “decision to
terminate the Program [at issue] was committed to the
Service’s discretion” and unreviewable.). We note, however,
that Congress did not simply call for the consideration of
environmental protection; it directed that the environmental
protection mission be “primary,” and directed its inclusion
specifically in the context of the Corps’ “planning,
designing, constructing, operating, and maintaining” of its
“water resources projects.” § 2316. This suggests that
actual application of that mission in those specific contexts
may well have been contemplated.
effluent discharged from publicly owned treatment works . . .”); § 307(d)
(establishing a wetland enhancement goal and giving “Factors to
consider”); § 313(a), (c), 33 U.S.C. § 2320(a), (c) (“the Secretary shall
consider the impact of the project on existing and future recreational
and commercial uses . . .” and, in doing so, “take such actions as may
be necessary to restore such recreational use . . .”).
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Overall, we do not see clear and convincing evidence that
the Foundation’s interpretation of § 306 — that the Corps
shall seek to implement environmental protection when
operating its water resources projects — is contrary to
legislative intent. Therefore, for purposes of determining
whether judicial review is available for the allegation that
the Corps’ operational policy violates § 306, the statute (if
ultimately given that interpretation) would give us at least
some law to apply. “No one doubts that [the Corps] must
have ‘very broad discretion’ in the administration of the
[project]. But even very broad discretion is not the same as
unreviewable discretion.” Nat’l Treasury Employees Union,
854 F.2d at 495. Nonetheless, having determined that these
allegations are amenable to judicial review based on the
colorable interpretation of § 306 that the Foundation posits,
the merits of whether the statute actually requires or
prohibits the specific actions the Foundation alleges or
whether the agency is abusing any discretion Congress has
granted it is an entirely separate matter.
III.
While the District Court erred in holding that the
exception to reviewability contained in § 701 applies to the
Foundation’s claims, the District Court acknowledged that
“to the extent that plaintiffs claim that the Corps as a whole
has failed to take any action to implement § 2316, there is
evidence of at least a minimal response by the Corps.”
Raymond Proffitt Found., 175 F. Supp. 2d at 767. It
believed that this would be “enough to satisfy the minimum
action required of the agency under the APA.” Id. at 768.
We agree.
The WRDA demands the inclusion of “environmental
protection as one of the primary missions of the Corps of
Engineers[’] . . . water resources projects.” 33 U.S.C. § 2316
(emphasis added). Stated another way, when the Corps of
Engineers is developing and operating its various water
resources projects, one of the primary tasks the Corps is to
include is environmental protection. Congress has,
however, left the meaning of the phrase “environmental
protection” undefined for purposes of § 306. This leaves the
Corps with discretion to determine what “environmental
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protection” is appropriate in a given context. That
conclusion is reinforced by the fact that § 306 does not
itself purport to place any specific, new requirements on
the Corps, but expressly recognizes that “[n]othing in this
section affects— (1) existing Corps of Engineers’ authorities,
including its authorities with respect to navigation and
flood control. . .” § 2316(b).
Under the WRDA, “the discretion Congress gave to” the
Corps “is not unfettered.” Nat’l Treasury Employees Union,
854 F.2d at 495. In this situation, however, where
Congress is not indifferent to the choices an agency
makes, within a sphere of action delegated to it, and
does not reserve oversight exclusively to itself by
precluding judicial review, then we presume the
legislature expected the court to review those choices
with a degree of scrutiny calibrated to the issues
involved.
Id. (emphasis added). Similar to the Snyder Act at issue in
the Supreme Court’s decision in Lincoln, the WRDA speaks
only of “water resources projects,” plural, in general terms,
and does not specifically reference or otherwise elevate any
particular projects or class of projects for more detailed
consideration. Cf. Lincoln, 508 U.S. at 193-94 (the
“appropriations Acts for the relevant period do not so much
as mention the Program, and both the Snyder and the
Improvement Act likewise speak about Indian health only in
general terms”). Lincoln is not, of course, specifically
controlling. Nonetheless, a fortiori, a limited and very
deferential review of the Corps’ actions in the absence of
some Congressional intent to the contrary is appropriate
here. “Courts are . . . competent to determine whether an
agency has exercised its discretion — broad though it be —
in a manner arbitrary and capricious.” Nat’l Treasury
Employees Union, 854 F.2d at 496. Nonetheless, “we
recognize that our scope of review of the [agency’s] function
under [the statute] is severely limited because the statute
. . . vest[s] rather broad discretion in the [agency].” See
Chong v. Director, U.S. Information Agency, 821 F.2d 171,
176 (3d Cir. 1987).
Applying these principles to the record before us and the
specific actions that the Foundation argues are in violation
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of the WRDA, the Corps did not unlawfully withhold agency
action or otherwise act not in accordance with law. First,
the Corps has taken steps to include environmental
protection as one of the missions of both the Corps, overall,
and the Walter Dam specifically. In 1996, the Corps
published its current environmental restoration and
protection policies in its digest of water resources policies
and authorities. These policies were “significantly revised to
reflect the increased emphasis being placed upon
ecosystem restoration and protection within the Corps of
Engineers (Corps) Civil Works Program. In particular,” the
policy was a response to “the programs and policies
established by recent Water Resources Development Acts.”
App. 48.
The Corps’ digest specifically states its twenty-seven page
“guidance on ecosystem restoration is believed to account
for the requirements of ” the WRDA of 1990. Id. at 53. As
part of that policy, the Corps acknowledges that, under the
Endangered Species Act of 1973, if an “operational activity
will negatively impact an endangered or threatened species
or its critical habitat,” the Corps “will initiate the
preparation of a biological opinion by the USFWS [United
States Fish & Wildlife Service] and/or the NMS [National
Maritime Service].” Id. at 60. The Corps acknowledges its
“responsibilities under the CWA [Clean Water Act].” Id. The
policy even states the circumstances under which the
Corps will “provide mitigation for adverse impacts on the
environment, including fish and wildlife resources.” Id.
At the Walter Dam in particular, the 1994 F.E. Walter
Reservoir Water Control Manual describes how the Corps
will “include environmental protection . . . in . . . operating,
and maintaining [the] water resources project[ ]” specifically
at issue here. See 33 U.S.C. § 2316(a). While the “primary
objective of the F.E. Walter Reservoir Project is flood
control[, o]ther objectives are lake and downstream
recreation (whitewater) and drought emergency water
supply/water quality storage.” Supp. App. 64 (emphasis
added). Furthermore, the Corps long ago conducted an
environmental assessment for the operation and
maintenance of the Dam. Nonetheless, at this particular
project, the Corps believes “[w]ater control management
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needs must take precedence over fishery accommodation
but the attempt should be made to adjust procedures for
fishery purposes whenever possible.” Id. at 80.
The record reflects that the Corps has included
environmental protection in both its overall operation of its
water resources projects and, in particular, at the Walter
Dam. The Corps has decided, however, to continue to
emphasize flood control as the primary objective of this
particular facility, something the WRDA certainly permits it
to do. See 33 U.S.C. § 2316(b). While we have no reason to
consider whether the Corps actions are “a comprehensive
response to the enactment of § 2316,” we agree with the
District Court that they are “enough to satisfy the
minimum action required of the agency under the APA.”
Raymond Proffitt Found., 175 F. Supp. 2d at 768.
We also conclude that the Corps has not violated § 306 of
the WRDA by refusing to operate the Walter Dam in the
specific manner proposed by the Foundation.8 Although
there is no longer any claim by the Foundation that the
Corps is failing to comply with any federal environmental
protection statute,9 the Foundation asserts that the Corps
“causes harm to the environment” by failing to further alter
the river’s natural flows. However, absent more
particularized language from Congress or the agency itself
that § 306 demands more, “our scope of review . . . is
severely limited because the statute . . . vest[s] rather broad
discretion in the [agency].” See Chong, 821 F.2d at 176.
Without dwelling on the question of whether the
Foundation’s proposed scheme to further alter the Lehigh
River’s natural flows would, itself, constitute harm to the
environment, as some would no doubt argue, suffice it to
8. We previously considered § 306’s interpretation only to the extent
necessary to determine if judicial review of the Corps’ actions was
appropriate. However, because the parties did not brief the actual merits
of their proffered interpretations, we will assume without deciding for
purposes of this analysis that § 306 does require the Corps to implement
its environmental protection mission once “include[d].” 33 U.S.C. § 2316.
9. As noted, supra, the District Court granted summary judgment to the
Corps on the Foundation’s claims that the Corps was violating the CWA
and NEPA. The Foundation did not appeal from those judgments.
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say insofar as § 306 of the WRDA is concerned, Congress
has granted vast discretion to the Corps in making this
determination. The record does not contain sufficient
evidence to show that the Corps’ decision to generally
reproduce in the Lehigh River the flows that nature herself
would produce, as opposed to “improving” on nature, was
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” or resulted in “agency action
unlawfully withheld or unreasonably delayed.” 5 U.S.C.
§ 706.
IV.
We will affirm, but for reasons differing from those offered
by the District Court. The WRDA directs that
“environmental protection” be included as one of the
“primary missions” of the Corps at its “water resources
projects.” There is nothing discretionary about this
command. The District Court erred in concluding there was
no “law to apply” in the WRDA and that the exception to
reviewability in 5 U.S.C. § 701(a)(2) precludes judicial
review of the actions the Foundation alleges are unlawful.
Nonetheless, by failing to give the Corps any particular
instructions on how this environmental protection mission
is to be included in the Corps’ activities, Congress has
vested broad discretion in the Corps to determine where,
when, and how much of the WRDA’s environmental
protection mission should be implemented at a given water
resources project. The Corps has demonstrated that it is
making environmental protection one of its primary
missions. Furthermore, the Corps has specifically taken
actions to facilitate the protection of the environment at the
Walter Dam. Therefore, considering the broad discretion
§ 306 of the WRDA grants the Corps and the
correspondingly deferential review that discretion requires
of the judiciary, we will affirm the judgment of the District
Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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