     Case: 15-30952      Document: 00513669170         Page: 1    Date Filed: 09/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 15-30952                        September 8, 2016
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
ATCHAFALAYA BASINKEEPER; LOUISIANA CRAWFISH PRODUCERS
ASSOCIATION - WEST,

              Plaintiffs - Appellants

v.

THOMAS P. BOSTICK, Lieutenant General, in his official capacity as Chief
of Engineers, U.S. Army Corps of Engineers; UNITED STATES ARMY
CORPS OF ENGINEERS,

              Defendants - Appellees




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:14-CV-649


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Atchafalaya Basinkeeper and Louisiana Crawfish
Producers Association-West filed suit against Defendants–Appellees United
States Army Corps of Engineers and Lieutenant General Thomas P. Bostick,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-30952
in his official capacity as Chief of the Engineers, relating to the Corps’
authorization of a wetland-fill project in Louisiana’s Atchafalaya Basin.
Plaintiffs asserted that the Corps could not authorize the project under the
Clean Water Act (CWA) and the National Environmental Policy Act (NEPA).
Both parties subsequently moved for summary judgment. The district court
ultimately granted summary judgment for the Corps, concluding that the
Corps’ authorization of the project did not violate the CWA or the NEPA.
Plaintiffs moved for reconsideration of the district court’s decision citing newly
discovered evidence. Finding that Plaintiffs presented the same evidence and
arguments as they had in their summary judgment briefing, the district court
denied Plaintiffs’ motion for reconsideration. Plaintiffs timely appealed that
denial. For the following reasons, we AFFIRM the Order and Reasons denying
reconsideration.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The instant appeal arises from a suit filed by Plaintiffs–Appellants
Atchafalaya Basinkeeper and Louisiana Crawfish Producers Association-West
(collectively, Plaintiffs) against Defendants–Appellees United States Army
Corps of Engineers and Lieutenant General Thomas P. Bostick, in his official
capacity as Chief of the Engineers (collectively, Corps) on March 20, 2014. The
suit challenged the Corps’ 2012 decision to authorize Expert Oil & Gas’s
(Expert Oil) request to build a ring levee and access road in the Atchafalaya
Basin to facilitate Expert Oil’s drilling of an oil well. Plaintiffs claimed that
Expert Oil’s project impaired their recreational, commercial, and aesthetic
enjoyment of the Atchafalaya Basin by blocking navigation and fishing in the
area. As relevant to this appeal, Plaintiffs argued that the project could not
have been authorized under the NEPA or under the terms of a regional general
permit issued by the Corps—pursuant to the CWA—that regulated the
construction of oilfield facilities in the wetlands of the Atchafalaya Basin
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(NOD-13 or the General Permit). 1 In particular, Plaintiffs alleged that the
project did not meet special conditions set forth in the General Permit limiting
the scope of work the Corps could authorize, because the project (1) involved
work within a mile of a wildlife management area, (2) intruded upon a critical
habitat of the Louisiana Black Bear, (3) would lead to the construction of a
permanent road, and (4) was contiguous to a previously authorized project,
namely a road built in 2000. Plaintiffs sought declaratory and injunctive relief
and vacatur of the Corps’ authorization on the grounds that the authorization
was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law, in violation of 5 U.S.C. § 706(2)(A). 2
       Plaintiffs moved for summary judgment on their claims on February 26,
2015, reiterating the arguments pressed in their Complaint. As part of their
motion for summary judgment, Plaintiffs proffered arguments and exhibits to
bolster their assertions that Expert Oil’s construction project was not
authorized by the General Permit. Plaintiffs specifically adduced (1) a note
allegedly showing that the Corps recognized Expert Oil’s access road would be
permanent; (2) maps showing that a wildlife management area was located
within a mile of the project site; and (3) affidavits attesting that the 2012



       1  Under 33 U.S.C. § 1344(e)—a subsection of the CWA—the Corps may issue what are
known as “general permits” on a “state, regional, or nationwide basis,” which allow a category
of activities that discharge dredged or fill material into the navigable waters of the United
States, like the Atchafalaya Basin. 33 U.S.C. § 1344(e). General permits may only be granted
where the Corps concludes, after notice and opportunity for public hearing, that the activities
in question will have minimal adverse effects on the environment, both cumulatively and
separately. Id. § 1344(e)(1). General permits are valid for five years, after which they may
be revoked or modified upon another opportunity for public hearing. Id. The General Permit
at issue here was first issued by the Corps’ New Orleans District Office in 1981 and includes
a number of special conditions on any approval of oil drilling associated work in the wetlands
of the New Orleans District.
        2 Plaintiffs also asserted NEPA and CWA causes of action related to the Corps’ alleged

failure to hold a hearing or to provide public notice as to the authorization of Expert Oil’s
construction project. Because these claims are not relevant to the instant appeal, we do not
discuss them further.
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                                       No. 15-30952
project was contiguous to a road built in 2000 that interfered with boat access
in the area.       The Corps subsequently filed a cross-motion for summary
judgment, arguing that Plaintiffs lacked standing and, alternatively, that
Plaintiffs’ claims were barred by laches or unfounded as a matter of law.
       On June 19, 2015, the district court entered its order on summary
judgment, concluding that Plaintiffs had standing and that their claims were
not barred by laches but rejecting Plaintiffs’ CWA and NEPA claims on the
merits. With respect the General Permit, the court found that the construction
project did not violate the General Permit and rebutted a number of Plaintiffs’
arguments. In particular, the court concluded that: (1) Expert Oil’s allegedly
permanent road could, in fact, be degraded and removed; (2) the Corps owned
the portion of the wildlife management area near the project site; (3) the
placement of Expert Oil’s road contiguous to the 2000 road was permissible
under the terms of the General Permit because it presented the “least
damaging practicable alternative”; and (4) the project site did not encompass
the habitat of the Louisiana Black Bear. The district court entered judgment
on July 1, 2015, dismissing Plaintiffs’ suit with prejudice.
       Plaintiffs initially filed their motion for reconsideration on July 30,
2015, 3 claiming that the Corps failed to inform the court that the contiguous
road built in 2000 had never been broken down and that the Corps did not
actually manage the portion of the wildlife management area near the project
site despite owning that land. Plaintiffs also asserted that work on the Expert



       3 Plaintiffs refiled the motion on August 7, 2015, because of a deficiency in the initial
motion. The district court looked at the date of the initial filing, however, and determined
that Plaintiffs’ motion for reconsideration was filed pursuant to Federal Rule of Civil
Procedure 59(e) rather than Federal Rule of Civil Procedure 60(b). Compare Fed. R. Civ. P.
59(e) (dealing with motions filed within 28 days from the entry of judgment), with Fed. R.
Civ. P. 60(b) (dealing with motions filed more than 28 days but less than one year from the
entry of judgment). Neither party takes issue with the district court’s characterization of the
motion for reconsideration, so we accept that the motion was filed pursuant to Rule 59(e).
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Oil project was affecting a nearby Louisiana Black Bear habitat. In support of
their motion, Plaintiffs attached maps and pictures of the 2000 road work, a
map showing the nearby wildlife management area, and a copy of a webpage
stating that the Corps owned land in the Atchafalaya Basin but that the land
was managed by the Louisiana Department of Wildlife and Fisheries.
       The district court denied Plaintiffs’ motion for reconsideration on
September 23, 2015. The district court found that Plaintiffs did not adduce
any previously unavailable evidence, demonstrate a manifest error of law or
fact in the district court’s original order, or provide evidence that the Corps
actually misrepresented or withheld evidence. Moreover, the district court
noted that the exhibits attached to the motion for reconsideration provided
information similar to evidence that the district court had previously
considered in ruling on summary judgment. Plaintiffs timely appealed the
district court’s order denying their motion for reconsideration.
                            II. STANDARD OF REVIEW
       In general, the “grant or denial of a Rule 59(e) motion is reviewed for
abuse of discretion.” Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000). 4
“Under this standard of review, the district court’s decision and decision
making process need only be reasonable.” Templet v. HydroChem Inc., 367
F.3d 473, 477 (5th Cir. 2004). We have noted that Rule 59(e) motions “serve
the narrow purpose of allowing a party to correct manifest errors of law or fact
or to present newly discovered evidence.” Waltman v. Int’l Paper Co., 875 F.2d
468, 473 (5th Cir. 1989) (internal quotation marks and citation omitted). In
light of this narrow purpose, we have further observed that “[r]econsideration



       4  However, “if a party appeals from the denial of a Rule 59(e) motion that is solely a
motion to reconsider a judgment on its merits, de novo review is appropriate.” Fletcher, 210
F.3d at 512 (first emphasis added). Plaintiffs’ motion was not solely to reconsider the district
court’s judgment on its merits.
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of a judgment after its entry is an extraordinary remedy that should be used
sparingly.”      Templet, 367 F.3d at 479.            Accordingly, a motion for
reconsideration “is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry
of judgment.” Id.
         III. DENIAL OF THE MOTION FOR RECONSIDERATION
         On appeal, Plaintiffs only challenge the district court’s denial of their
motion for reconsideration based on new evidence, not the underlying merits
of the district court’s summary judgment order. In particular, Plaintiffs argue
that the district court failed to consider newly submitted evidence by Plaintiffs
that showed that the Corps materially misrepresented various facts to the
district court. We find, however, that the district court did not abuse its
discretion in denying Plaintiffs’ motion for reconsideration pursuant to Rule
59(e).
         Plaintiffs did not point to any “manifest errors of law” in moving for
reconsideration, but instead presented what they deemed “newly discovered
evidence,”     allegedly    demonstrating     that   the   Corps    made    material
misrepresentations to the district court. Waltman, 875 F.2d at 473. Plaintiffs’
arguments both at the district court and here on appeal are unavailing. A
review of the evidence in question demonstrates that it was a recitation of
information that Plaintiffs had already included in their summary judgment
briefing and of which the district court was already made aware. On appeal,
Plaintiffs assert that the newly discovered evidence shows that (1) a wildlife
management area is near Expert Oil’s project, (2) a permanent elevated road
built in 2000 is near the project and blocks access for fishermen in the area,
and (3) the project affects a critical habitat for the Louisiana Black Bear.
Plaintiffs also point to maps, affidavits, and the Corps’ own documents
allegedly indicating that the Corps knew of—but failed to inform the district
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                                 No. 15-30952
court of—problems with the permanence of Expert Oil’s project and the road
contiguous to the project.
      This evidence is not new.       Plaintiffs submitted similar maps and
affidavits in support of their motion for summary judgment. And the district
court was aware of and recognized the points raised by this evidence in its
summary judgment order, addressing therein the alleged permanence of
Expert Oil’s project, the 2000 road contiguous to the project, and the nearby
wildlife management area. Moreover, while Plaintiffs assert that new evidence
showed the project’s effect on a critical habitat of the Louisiana Black Bear,
Plaintiffs did not support this assertion with any evidence as part of their
motion for reconsideration and do not do so now on appeal. It is clear then that
Plaintiffs’ motion for reconsideration did not seek to present new evidence but
rather sought to rehash points and arguments already presented at summary
judgment briefing. This is not enough to require a district court to exercise the
“extraordinary remedy” of reconsidering its order entering judgment. Templet,
367 F.3d at 479. The district court therefore did not abuse its discretion in
denying Plaintiffs’ motion for reconsideration.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the Order and Reasons denying
reconsideration.




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