Britt v. U.S. Army Corps of Engineers
| Decision Date | 30 July 1985 |
| Docket Number | D,No. 1433,1433 |
| Citation | 769 F.2d 84 |
| Parties | , 16 Envtl. L. Rep. 20,075 Doris J. BRITT, Robert F. and Marjorie L. Gascon, Carl E. and Thelma V. Schenk, Ryal and Alice DeVoist, Gilbert Knapp, Nan Moody, Medicab of Rochester, Inc., Vic & Irv's Refreshment, Inc., and Alberta Enterprises, Inc., d/b/a Bill Gray's Family Restaurant, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, Jon O. Marsh, Secretary of the Army, Lt. Gen. E.R. Heiberg III, Chief of Engineers, United States Army Corps of Engineers, and United States of America, Defendants-Appellants. ocket 85-6125. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert C. Napier, Rochester, N.Y. (David J. Seeger, Buffalo, N.Y., on the brief), for plaintiffs-appellees.
Albert M. Ferlo, Jr., Dept. of Justice, Washington, D.C. (F. Henry Habicht II, Asst. Atty. Gen., Washington, D.C., Salvatore R. Martoche, U.S. Atty., W.D.N.Y., Jonathan W. Feldman, Asst. U.S. Atty., Rochester, N.Y., Robert L. Klarquist, Dept. of Justice, Washington, D.C., on brief), for defendants-appellants.
Sutter, Summers & Lydon, Webster, N.Y., filed a brief on behalf of amicus curiae Town of Webster.
Before KEARSE and CARDAMONE, Circuit Judges, and WYATT, District Judge *.
This expedited appeal is taken by defendants United States Army Corps of Engineers, et al. (collectively the "Corps"), from an order of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, preliminarily enjoining the Corps from removing the bridge on New York Route 18 spanning the outlet channel from Irondequoit Bay (the "Bay") to Lake Ontario and linking the Town of Webster, New York, with Irondequoit, New York (the "Bridge"), without receiving assurances from "local interests" that a replacement bridge will be built on that site. The Corps contends that the district court abused its discretion in granting the injunction. We agree and reverse.
In 1958, Congress authorized the Corps to undertake an improvement project that included enlarging the existing channel connecting the Bay to Lake Ontario. River and Harbor Act of 1958, Pub.L. No. 85-500, Sec. 101, 72 Stat. 297. The project was "authorized to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers, in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in the ... report[ ] ... designated [H.R.Doc. No. 332, 84th Cong., 2d Sess. (1946) ("H.R.Doc. 332") ]." Id. at 297. H.R.Doc. 332, labeled a "Preliminary Examination and Survey of Irondequoit Bay," included a report of the Chief of Engineers, dated April 15, 1955, recommending, inter alia, that
the [project] be subject to the condition that responsible local agencies give assurances satisfactory to the Secretary of the Army that without cost to the United States they will--
....
(f) Replace and relocate the existing highway bridge with a new structure providing a vertical clearance of 40 feet above low-water datum in a location consistent with the recommended plan of improvement, in accordance with plans approved by the Chief of Engineers....
H.R.Doc. 332, at 30. That document further stated that its recommendations were "all generally in accordance with the plans of the district engineer and with such modifications thereof as in the discretion of the Chief of Engineers may be advisable." Id. at 3, 4; see id. at 29.
In 1960, New York State proposed that, rather than replace the Bridge at its current site, it would construct a new high-level bridge over the Bay on New York Route 104, 1 1/2 miles south of the Bridge and "abandon present Route 18 along the shore of Lake Ontario as a State highway route." The Office of the Chief of Engineers approved this proposal, stating that "the proposed deviations from the project document plan are satisfactory...." The new high-level bridge was completed in 1970.
In 1979, the Corps published a Draft Environmental Impact Statement ("DEIS") and a draft Phase I General Design Memorandum with respect to the project and circulated it for public review and comment. In 1980, after conducting a hearing under Sec. 404 of the Clean Water Act, 33 U.S.C. Sec. 1344 (1982), the Corps published its Final Environmental Impact Statement on the project ("FEIS") and a final Phase I General Design Memorandum ("GDM-1"). Both the FEIS and GDM-1 noted that the question of whether a new bridge should be constructed on the site of the Bridge was a "local decision" and that the Corps would proceed with the project regardless of what that local decision was. In 1982, the Corps issued a Phase II General Design Memorandum, addressing the final design of the project and reaffirming that local interests would be free to construct a movable bridge or no bridge on the site. In 1983, a "Local Cooperation Agreement" was signed by the Corps and the State, which provided that the State would construct and maintain a replacement highway bridge across the expanded channel. In a covering letter from the Corps to the State, however, the Corps again asserted that the question of whether or not to construct a new bridge was entirely "a local one" and that the Corps "would accept either option."
In June 1984, the Corps awarded a contract for the enlargement of the channel and the construction of a small boat harbor at Irondequoit Bay, at a price of $3,260,000. The contractor began work in August 1984 and approximately one-third of the contract price has now been paid. Although the Bridge has not been removed, work under the contract is approximately 35% complete and is scheduled for completion by mid-September 1985.
In October 1984, plaintiffs, residents of Webster and owners of property near the Bridge, commenced the present action under, inter alia, the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq. (1982), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4331 et seq. (1982). Plaintiffs claimed, inter alia, (1) that the Corps's approval of the Route 104 bridge as a replacement for the Bridge was a modification of the original proposal in H.R.Doc. 332 that was arbitrary and capricious and in excess of the authority of the Chief of Engineers, and (2) that the Corps's environmental impact statements did not adequately explore the effects of removing the Bridge. Based on these claims, plaintiffs moved for a preliminary injunction prohibiting the Corps from removing the Bridge until assurances were received that a new bridge would be constructed over the channel.
The district court granted the injunction, agreeing with both of plaintiffs' claims. In a Decision and Order dated April 12, 1985, 606 F.Supp. 536 ("Decision"), the court stated that
there has been a modification of the project as described in HD 332, of such serious dimensions that it amounts to an abandonment of the original purpose. The project as described in HD 332 clearly included a roadway bridge over the newly-dredged channel, and the construction of the Route 104 bridge 1 1/2 miles to the south is no substitute for such a bridge; it carries the through traffic, and the ever-increasing local traffic still relies on the Route 18 bridge. To hold otherwise would be to allow would-be users of the [B]ridge to become casualties of bureaucratic excessiveness--by condoning decisions which completely departed from original Congressional intentions.
id., and that "[n]owhere in the FEIS is the decision-maker advised of the environmental impacts which will occur if the [B]ridge is severed and never replaced," id. at 10.
Finding also that the removal and nonreplacement of the Bridge would cause plaintiffs irreparable injury and that they had not unduly delayed in commencing their suit, the court enjoined the Corps from removing the Bridge "until assurances are received from 'local interests' that it will be replaced as originally provided in Public Law 85-500." Id. This appeal followed.
On appeal, the Corps argues that the district court abused its discretion in granting the injunction because (1) plaintiffs' suit should be barred by laches, (2) plaintiffs have not shown irreparable injury, and (3) plaintiffs have not shown either a likelihood of success on the merits or a sufficiently serious ground for litigation of either of their claims. While we decline to consider the question of laches, in light of the Corps's failure to plead it as an affirmative defense, see United States v. One (1) 1963, Hatteras Yacht Ann Marie, 584 F.2d 72, 76 (5th Cir.1978); Fed.R.Civ.P. 8(c) and 12(b), and while we agree with the district court that plaintiffs have adequately established the likelihood of irreparable harm to themselves as a result of the delay and inconvenience they will experience in traveling from one side of the channel to the other if the Bridge is removed, we agree with the Corps's third contention and accordingly reverse.
The standard in this Circuit for the issuance of a preliminary injunction requires the moving party to establish (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) a sufficiently serious ground for litigation and a balance of hardships tipping decidely in its favor. E.g., In re Feit & Drexler, Inc., 760 F.2d 406, 415 (2d Cir.1985); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). The ultimate question on appellate review of a district court's issuance of a preliminary injunction is whether, in light of the applicable standard, the court has...
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