Flanagan v. United States Army Corps of Engineers et al.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIN R. FLANAGAN,
Plaintiff,
v.
UNITED STATES ARMY CORPS
OF ENGINEERS, et al.,
Defendants.
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Case No. 1:26-cv-789
Judge J. Philip Calabrese
Magistrate Judge
James E. Grimes, Jr.
OPINION AND ORDER
In this action involving litigation over the Shakes Lakes, the Court ordered
Plaintiff Erin Flanagan to show cause why (1) the claims she asserts under the
Administrative Procedure Act are ripe, (2) her allegations of violations of the
Endangered Species Act satisfy the basic requirements for notice pleading, and
(3) Defendants Northeast Ohio Regional Sewer District, the City of Cleveland, the
City of Cleveland Heights, and the City of Shaker Heights should not be dismissed
because the amended complaint asserts no claims against them. 	In this ruling, the
Court addresses each of these issues.
STATEMENT OF FACTS
In her original complaint, Plaintiff Erin Flanagan, a lawyer representing
herself, alleges that the Shaker Lakes Parklands, consisting of Upper Horseshoe
Lake, Lower Shaker Lake, Doan Brook, associated earthen dams, and surrounding
parkland, form a continuous historic water-management landscape. (ECF No. 1, ¶¶ 2,
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24 & 71, PageID #2, #5 & #12; see also ECF No. 34, ¶ 52, PageID #468.) According to
the complaint, the National Register of Historic Places recognizes this overall system
as an integral element of the historic landscape. (ECF No. 1, ¶¶ 3 & 29, PageID #2 &
#6; see also ECF No. 34, ¶¶ 60–65, PageID #470–71.) In 1895, these lands were
conveyed to the City of Cleveland to serve as a public park. (Id., ¶¶ 5 & 27, PageID
#3 & #6.) Later agreements in 1947 and 1991 between the City of Cleveland and the
Cities of Cleveland Heights and Shaker Heights affirm this dedicated use for the
land. (Id., ¶¶ 5 & 28, PageID #3 & #6.)
In the amended complaint, Plaintiff describes an ongoing standard permit
review before the United States Army Corps of Engineers. (ECF No. 34, ¶¶ 1 & 42,
PageID #460 & #466.) 	The Northeast Ohio Regional Sewer District seeks a permit
under Section 404 of the Clean Water Act as part of the Doan Brook restoration
project at the Shaker Lakes. 	(Id.; Public Notice, Permit App. No. LRB-2016-01374
(May 26, 2026).) 	According to the amended complaint, the project at issue broadly
involves the permanent removal of the Horseshoe Lake Dam and the permanent
draining of that lake; construction of a new stream channel, associated leveling of the
floodplain, and creation of wetlands; various landscaping, including grading and
contouring of the land and removal of a large number of trees; and other related work.
(Id., ¶¶ 2 & 42, PageID #460 & #467.)
On May 13, 2025, the Sewer District submitted a pre-construction notice to the
Army Corps seeking authorization for the project under a general permit, Nationwide
Permit 27. (ECF No. 20-1, ¶ 10, PageID #299.) Because this general permit does not
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authorize dam removal, the Army Corps determined that review of the project needs
to follow standard individual permitted processes. 	See Public Notice, Permit App.
No. LRB-2016-01374 (May 26, 2026). 	According to the amended complaint, these
permitting processes, which include those under Section 401 and Section 404 of the
Clean Water Act, Section 106 of the National Historic Preservation Act, and the
Endangered Species Act, remain ongoing. (ECF No. 34, ¶ 3, PageID #461.) At bottom,
while permitting activities continue, the amended complaint alleges that the federal
Defendants rely on various prior agency determinations and agreements. (Id., ¶ 10,
PageID #462.) No final permit for the project has issued. (Id., ¶ 43, PageID #467.)
STATEMENT OF THE CASE
On April 2, 2026, Plaintiff filed suit against Defendants the United States
Army Corps of Engineers and its regional district commander; the Northeast Ohio
Regional Sewer District; the City of Cleveland; the City of Cleveland Heights; and
the City of Shaker Heights. 	(ECF No. 1.) 	At the same time, Plaintiff filed an
emergency motion for a temporary restraining order (ECF No. 2), which Defendants
opposed (ECF No. 6; ECF No. 12; ECF No. 16; ECF No. 20.) 	On May 11, 2026, the
Court denied Plaintiff’s motion for a temporary restraining order. (ECF No. 27.)
Following a hearing (ECF No. 29), Plaintiff filed an amended complaint (ECF
No. 34.) 	In the amended complaint, Plaintiff asserts three counts under the
Administrative Procedure Act. 	She brings Count I against the federal Defendants,
alleging that they are using prior consultation activities under Section 106 of the
National Historic Preservation Act as applicable to the current project and permitting
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process. 	(Id., ¶¶ 225–33, PageID #495–96.) 	In Count II, Plaintiff challenges the
federal 	Defendants’ 	continued 	reliance 	on 	prior 	agency 	determinations
notwithstanding the transition from reliance on a nationwide permit to an individual
permitting process. (Id., ¶¶ 234–43, PageID #497.) Specifically, she seeks review “of
the analyses, findings, evaluations, determinations, memoranda, and administrative-
record materials supporting continued applicability” of a prior agreement dated April
16, 2026 in light of the subsequent shift to standard permitting review. (Id., ¶ 242.)
Plaintiff asserts Count III against the federal Defendants, seeking review of their
determination that prior consultation and analysis remain sufficient as the agency
proceeds with standard permitting. (Id., ¶¶ 244–49, PageID #498.)
In Count IV, Plaintiff asserts a claim under the citizen suit provisions of the
Endangered Species Act against the federal Defendants. 	(Id., ¶¶ 250–65, PageID
#499–501.) Plaintiff seeks a declaratory judgment and to set aside, vacate, or remand
agency 	actions 	in the 	present 	standard 	permitting process 	that 	rely 	on prior
determinations under the nationwide permit. (Id., PageID #501–02.)
The Court ordered Plaintiff to show cause why the APA claims are ripe, the
Endangered Species Act claim satisfies the pleading standard in Rule 8 of the Federal
Rules of Civil Procedure, and Defendants other than the federal Defendants should
not be dismissed. 	(ECF No. 42, PageID #551–52.) 	After Defendants briefed the
issues, Plaintiff sought to file a reply (ECF No. 52), which the Court GRANTS.
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ANALYSIS
I. 	Administrative Procedure Act (Counts I, II & III)
Under the Administrative Procedure Act, judicial review extends to “final
agency action for which there is no other adequate remedy in a court” or otherwise
“made reviewable by statute.” 5 U.S.C. § 704. For an agency action to be “final” and
subject to review, the action must first represent the “consummation of the agency’s
decisionmaking process” and, second, be one by which “rights or obligations have been
determined or from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154,
177–78 (1997) (internal quotation marks and citations omitted).
First, the challenged actions do not meet the finality requirement. 	Plaintiff
identifies three components of the ongoing review process actions as “final”: the Army
Corps’ present determination concerning the identity of the project, the continuing
applicability of a memorandum of agreement dated April 16, 2026, and the continuing
sufficiency 	of 	the 	Army 	Corps’ 	existing 	Section 	106 	analysis 	in 	the 	standard
permitting review. 	(ECF No. 34, ¶¶ 231, 243 & 245, PageID #496–98.) 	An action
that is part of an ongoing review process may still represent the consummation of an
agency’s decision-making process. See U.S. Army Corps of Eng’rs v. Hawkes Co., 578
U.S. 590, 597–600 (2016) (classifying a jurisdictional determination as final and
reviewable 	before 	landowners 	completed 	the 	Section 	404 	permitting 	process).
However, the project at issue remains unchanged and subject to ongoing federal
review, and the Section 106 consultation remains contingent on the Corps’ permit
decision. 	At this point in time, the actions that Plaintiff challenges remain “of a
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merely tentative or interlocutory nature . . . such that judicial review of the action
would disrupt the orderly process of adjudication.” 	Berry v. United States Dep’t of
Labor, 832 F.3d 627, 633 (6th Cir. 2016) (internal quotations and citations omitted).
Second, 	regardless 	of 	finality, 	Plaintiff 	fails 	to 	identify 	any 	“legal
consequences” or obligations flowing from the challenged actions. Bennett, 520 U.S.
at 177–78. 	The challenged action must have a “sufficiently direct and immediate
impact” on the party challenging it. Berry, 832 F.3d at 633 (6th Cir. 2016) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967)). 	Count I does not identify any
adverse consequence from the Army Corps’ identification of the project as the same
project previously reviewed. 	(ECF No. 34, ¶¶ 224–33, PageID #495–96.) 	Count I
alleges only that the Army Corps’ position “has continuing operative effect during
ongoing federal review” and is “presently operative.” 	(Id. at ¶¶ 226 & 231, PageID
#495–96.) Plaintiff notes that the Army Corps’ position affects the scope of the federal
review and the procedural obligations the Army Corps recognizes, but that does not
describe a right or obligation that the agency’s position has determined. (ECF No. 50,
PageID #569.) 	An effect on the agency’s ongoing review, without more, does not a
have “sufficiently direct and immediate impact” on Plaintiff. Berry, 832 F.3d at 633.
Similarly, Counts II and III do not allege legally adverse effects from the
existing Section 106 review. 	(ECF No. 34, ¶¶ 234–49, PageID #497–98.) 	Count II
alleges that the permitting structure now differs from the one in place when the
memorandum of agreement was executed and that the Army Corps nevertheless
treats the memorandum as controlling. 	(Id. at ¶¶ 238–39, PageID #497.) 	But
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Count II does not identify a difference between the nationwide and standard permit
processes that would make the memorandum inoperative or identify any other
consequence from its continued application that requires interlocutory review or
otherwise makes its continued application sufficiently final to warrant judicial
review. (ECF No. 51, PageID #585.) Count III alleges that the Army Corps continues
to treat prior consultation as sufficient and seeks review of “any determination” that
additional consultation is unnecessary. 	(ECF No. 34, ¶¶ 245–48, PageID #498.)
Framing a challenge in this way fails to identify a decision that has determined rights
or obligations. Bennett, 520 U.S. at 178. Without a direct and immediate impact on
Plaintiff, these counts do not challenge an action from which “legal consequences”
flow. Berry, 832 F.3d at 633. At least not yet.
The memorandum of agreement is contingent on the issuance of a permit;
therefore, it has no effect on current legal rights or obligations. (ECF No. 2-3, PageID
#70.) 	Plaintiff responds that an executed memorandum of agreement evidences
compliance with Section 106 and governs the project. 	(ECF No. 52-1, PageID #604
(citing 36 C.F.R. § 800.6(c)).) 	Whatever effect that regulation might have, this
memorandum takes effect only upon a permit decision, so it does not yet alter
Plaintiff’s rights or obligations.
Plaintiff cites multiple cases for the proposition that an agency determination
may be final even though a larger permitting process remains unfinished. 	(ECF
No. 50, PageID #570; ECF No. 52-1, PageID #603.) While that proposition is correct,
Plaintiff concedes that not “every agency communication or intermediate step during
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the Standard Permit process is immediately reviewable.” (ECF No. 50, PageID #570.)
In the cases on which Plaintiff relies, the actions at issue carried concrete legal
consequences that the actions here lack. 	For example, in U.S. Army Corps of
Engineers v. Hawkes Co., 578 U.S. 590, 596–99 (2016), the Army Corps approved a
jurisdictional determination, which its regulations treat as a final agency action
subject to administrative appeal and bound the Army Corps for five years and the
government in later litigation. 	In Sackett v. EPA, 566 U.S. 120, 125–27 (2012), a
compliance order required landowners to restore their property under an agency-
approved work plan and to give the agency access to their property and records. 	It
also exposed them to penalties, restricted their ability to obtain a permit from the
Army Corps, and was not subject to further agency review. 	Plaintiff identifies no
comparable obligation, penalty, or binding effect flowing from the actions challenged
in this case. (See ECF No. 34, ¶ 97, PageID #476.)
For these reasons, the challenged agency decisions do not satisfy the two-prong
test for finality. 	Bennett, 520 U.S. at 177–78. 	Therefore, the claims asserted in
Counts I, II, and III under the Administrative Procedure Act are not ripe for review.
Accordingly, the Court DISMISSES these claims WITHOUT PREJUDICE.
II. 	Endangered Species Act (Count IV)
Plaintiff fails to demonstrate how Count IV meets the basic Rule 8 notice
pleading standard. 	A complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief,” sufficient to give defendants fair
notice of the claim and the grounds on which it rests. Fed. R. Civ. P. 8(a)(2). While
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Plaintiff’s original complaint identified the species at issue (ECF No. 1, ¶ 192, PageID
#35), the first amended complaint fails to do so (ECF No. 34, ¶¶ 250–65, PageID
#499–501). This omission leaves Defendants unable to determine the nature of any
alleged injury. Also, it affects the nature of Plaintiff’s claim regarding the Section 7
consultation obligation. 	That section is directed at the listed species, or critical
habitat, that the agency action may affect. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
For that reason, the species in question informs the review. Whether the species is a
bird, a fish, or something else affects which habitat and which project activities must
be evaluated, and so what consultation is required. 	A citizen-suit plaintiff must
ultimately show an “injury to identifiable members of the protected species” caused
by the challenged activity. Cascadia Wildlands v. Scott Timber Co., 105 F.4th 1144,
1156 (9th Cir. 2024.) 	Plaintiff identifies no species, so Defendants cannot tell what
injury might be at issue or what activity might have caused it. For these reasons, the
Court DISMISSES Count IV.
III. 	The Remaining Defendants
In the amended complaint, Plaintiff asserts four causes of action—none
against the Northeast Ohio Sewer District, the City of Cleveland, the City of
Cleveland Heights, or the City of Shaker Heights. (ECF No. 34, PageID #495–502.)
Plaintiff represents that she asserts claims against these Defendants to the “extent
permitted by the specific statutory causes of action” but concedes that the first
amended complaint lists the operative causes of action as against only federal
Defendants. (ECF No. 50, PageID #574.)
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Plaintiff maintains that Rule 20(a) and Rule 21 “distinguish between the legal
basis for a claim and the parties who may properly participate in an action.” 	(ECF
No. 50, PageID #575.) But Rule 20(a) permits joinder of a person as a defendant only
where “any right to relief is asserted against them.” Fed. R. Civ. P. 20(a)(2)(A). And
Rule 21 provides that misjoinder of parties (those on whose behalf or against whom
claims are brought) is not a ground for dismissal of an action and authorizes a court
to add or drop parties or sever claims. 	Fed. R. Civ. P. 21. 	Without a claim against
these Defendants, it is difficult to see a basis in law for holding them in this suit.
Plaintiff concedes that the first amended complaint “does not seek to impose
APA liability upon any non-federal defendant.” 	(ECF No. 50, PageID #575.) 	Nor
could she. 	“Administrative Procedure Act claims and mandamus claims may be
asserted only against federal agencies and their employees.” Griffith v. Bell-Whitley
Cmty. Action Agency, 614 F.2d 1102, 1105 (6th Cir. 1980); Southwest Williamson
Cnty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1035–36 (6th Cir. 1999) (holding that APA
claims against a non-federal party should be dismissed for failure to state a claim).
Undoubtedly, the named non-federal Defendants have strong connections to
the project currently under review as landowners and project sponsors. However, the
Rules require more. 	Because the amended complaint does not assert any cause of
action against these Defendants, the Court DISMISSES them from this action.
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CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s motion for leave to
file a reply instanter (ECF No. 52) and DISMISSES WITHOUT PREJUDICE the
first amended complaint.
SO ORDERED.
Dated: October 13, 2026
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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