Ark. Nature Alliance v. Army Corps of Engineers, 1-02-CV00037-WRW.
| Decision Date | 17 March 2003 |
| Docket Number | No. 1-02-CV00037-WRW.,1-02-CV00037-WRW. |
| Citation | 266 F.Supp.2d 895 |
| Parties | ARKANSAS NATURE ALLIANCE, INC, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS; Colonel Benjamin Butler, District Engineer, Little Rock District, Corps of Engineers, Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
On February 28, 2003, I granted summary judgment in this case for the Plaintiff and entered judgment consistent with that order.1 Paragraph 9 of the remedy portion of the Order directed all parties to notify the Court within five (5) days from entry whether additional orders were required to implement the remedial provisions of the Order. The Corps and the Developer Interveners requested an extension of time up to and including February 25, 2003. With no objection from Plaintiff, the extension was granted.2 This Order addresses the issues raised in those filings.3 Additionally, Developer Intervenors filed a Motion for Clarification and Amendment of the Order.4 This Order also disposes of that Motion.
Plaintiffs letter of February 19, 2003, informs the Court that there are no binding time-frames contained in the Corps' administrative permitting process. While the Order requires that it be done in an expeditious manner, and that quarterly reports of implementation be submitted, the Plaintiff suggests a general time-frame of not more than nine months. Plaintiff further suggests that failing completion of the process during the time-frame, or in the absence of good cause shown by the Corps for exceeding the time-frame, the bridge should be restored to its original low-water dimensions. The Corps' response of February 24, 2003, does not object to a deadline.
I note an objection to a time-frame from the Developer Intervenors in their letter of February 20, 2003. I am not convinced that the Developer Intervenors have standing on that issue, and, in any event, since it is the Corps that must conduct the permitting process, and it has no objection to the time-frame proposed, a time-frame seems reasonable. I order the following:
1. I direct that the time-frame for the permitting process be nine months from the entry of this Order. In the event the process is not complete, absent good cause shown by the Corps, the bridge will be returned to its original low-water dimensions. This language will be included in paragraph 2 of the remedy.5
Next, Plaintiffs letter of February 19, 2003, asks this Court to enjoin the use of the bridge and further work on development of Landers Island during the permitting process. In their February 20, 2003 letter, the Developer Intervenors object to enjoining use of the bridge but assure the Court they are mindful of the Court's Order. The Corps, in its February 24, 2003 letter, objects to an injunction that would cut residents from their homes and agrees to monitor the caution signs. After reviewing these suggestions and objections, I order the following:
2. The Developer Intervenors and current residents may continue to use the bridge. All further development on the Landers Island is enjoined pending the completion of the permitting process. This language will be added to paragraph 5 of the remedy.
Finally, the Developer Intervenors, in both their letter of February 20, 2003, and their Motion for Clarification, ask me to clarify whether my Order mandates an Environmental Impact Statement ("EIS") or whether the Court has simply ordered the permitting process that would allow only an Environmental Assessment ("EA"). Plaintiffs letter response to the Developer Intervenors' Motion for Clarification states that it believes the Order correctly remands the case without specifying any particular procedure. Plaintiff further states that, in this case, the Corps could conceivably choose to perform only an EA. Plaintiff then guarantees a challenge to such an action if it requires a Finding of No Significant Impact. The Corps has not given me a hint as to whether it reads my Order to require an EIS and has certainly not objected to doing one or argued in response in any manner. I would be mystified if, on this record, and with the promise of future challenge from the Plaintiff, the Corps would be so shortsighted. The Corps has not presented the Court with any authority to convince me I cannot order that the permitting process include an EIS. While I do not believe the Developer Intervenors have standing on this...
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Ripplin Shoals Land v. U.S. Army Corps/Engineers
...to intervene, as the developers, for remedial issues and to participate in all further proceedings in which they had an interest. In Arkansas Nature Alliance, the district court found that the Corps' issuance of the LOP to modify the existing low-water bridge was not reasonable and ordered ......