CANE CREEK CONSERV. AUTH. v. ORANGE WATER & SEWER

Decision Date10 August 1984
Docket NumberNo. C-82-992-D,C-83-72-D.,C-82-992-D
Citation590 F. Supp. 1123
CourtU.S. District Court — Middle District of North Carolina
PartiesCANE CREEK CONSERVATION AUTHORITY and Teer Farms, Inc., Plaintiffs, v. ORANGE WATER AND SEWER AUTHORITY; John O. Marsh, Jr., Secretary of the Army; Lt. General Joseph K. Bratton, Chief of Engineers of the Army Corps of Engineers; Col. Robert K. Hughes, District Engineer, Wilmington District, Army Corps of Engineers; Col. Wayne A. Hanson, Wilmington District, Army Corps of Engineers, Defendants. CANE CREEK CONSERVATION AUTHORITY and Teer Farms, Inc., Plaintiffs, v. ORANGE WATER AND SEWER AUTHORITY and Robert K. Hughes, District Engineer for the Army Corps of Engineers, Defendants.

David A. Harlow, Durham, N.C., for plaintiffs.

Thomas Erwin and Charles D. Case, Raleigh, N.C., for Orange Water and Sewer Authority.

Carl Strass, Washington, D.C., for the Army Corps of Engineers.

MEMORANDUM OPINION

GORDON, Senior District Judge.

These cases come before the Court on numerous motions by the opposing parties.1 Inasmuch as these two actions involve common questions of law and fact, and parties with identical interests, the actions have been consolidated for the purpose of considering these motions.

I. INTRODUCTION
A. Cane Creek I

In this action, plaintiffs seek a declaratory judgment and an injunction prohibiting the defendant Orange Water and Sewer Authority (OWASA) from proceeding under an allegedly expired Section 404 permit to pursue the construction of a water supply dam and reservoir on Cane Creek. In response, defendant OWASA seeks a declaratory judgment upholding the validity of the Section 404 permit, declaring it in full force and effect. By Order filed on November 16, 1983, this Court granted the defendants' motion to join additional parties Marsh (Secretary of the Army), Bratton (Chief Engineer of the Army) and Hughes (District Engineer of the Army) as party defendants. In addition, the Court denied the plaintiffs' motion for summary judgment since material factual issues still remained in dispute. As a result of the joinder of the additional parties defendant, an amended Complaint was filed on December 20, 1983, with defendant OWASA filing an answer on January 17, 1984. On the federal defendants' own initiative, the administrative record was filed with the Clerk of Court on April 9 and April 30, 1984. A hearing on all pending motions was held in Greensboro on July 20, 1984, where stipulations of dismissal were entered for plaintiffs Edward Johnson, Cecil Crawford, and Forrest Young. Thus, Cane Creek Conservation Authority (CCCA) and Teer Farms, Inc. remain as the only plaintiffs.

B. Cane Creek II

In this related action, plaintiffs seek a declaratory judgment and an injunction prohibiting OWASA from proceeding under an allegedly invalid Section 404 permit to pursue the construction of the same dam. Specifically, plaintiffs contend that the aforementioned Section 404 permit was issued by the District Engineer in reliance upon the North Carolina Environmental Management Commission's certification of the Cane Creek Project (See N.C.Gen.Stat. § 162A-7), which certification had been reversed and declared invalid by the North Carolina Court of Appeals on the same date that the District Engineer issued the Section 404 permit. See In re Environmental Management Commission Final Order, 53 N.C.App. 135, 280 S.E.2d 520 (1981). Moreover, plaintiffs contend that the District Engineer's decision to issue the Section 404 permit was deficient as a matter of law for failure properly to evaluate the various public interests involved in the issuance of a permit, in direct violation of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq.

The defendants counter that, among other things, the first claim is moot and meritless; the North Carolina Court of Appeals in overturning the initial certification clearly made no decision on the merits of the certification; and in any event, 33 C.F.R. § 320.4(j)(5) (1981) provided authority for the defendants to process the application if there was delay at the state level.2 Furthermore, defendants assert that the plaintiffs' second claim should be estopped for failure to raise this claim in Cane Creek I. Hence, defendants seek a declaratory judgment upholding the validity of the Section 404 permit, and declaring it in full force and effect. The administrative record for Cane Creek II was also filed with the Clerk of Court on April 9 and 30, 1984. A hearing on all pending motions was held in Greensboro on July 20, 1984, and this case was consolidated with Cane Creek I for purposes of oral argument. Stipulations of dismissal were entered in this action as well for plaintiffs Edward Johnson, Cecil Crawford, and Forrest Young, leaving CCCA and Teer Farms, Inc. as the only remaining plaintiffs.

II. DISCUSSION

The plaintiffs have apparently brought these actions against OWASA and the federal defendants under Section 10 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, which gives any person "adversely affected or aggrieved by agency action within the meaning of a relevant statute" the right to seek federal court review. These suits seek to prevent construction of the reservoir dam by challenging (1) the continued validity of the Section 404 permit, because no construction work was started within the time limits of the permit, and (2) the administrative procedure followed by the District Engineer in issuing the Section 404 permit for the project. The threshold issue, however, is whether the plaintiffs have alleged particularized actual or threatened injuries sufficient to give this Article III Court jurisdiction to hear their claims. While the APA has broadened "the categories of injury that may be alleged in support of Article III standing," it has not displaced the analytical framework under which that determination is made. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

Article III of the United States Constitution confines the federal courts to adjudicating "cases" or "controversies". An individual seeking judicial relief from an Article III court must demonstrate that there is an actual case or controversy which has caused him some judicially cognizable injury. At a minimum, such an individual must show "`that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' ... and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); quoting Gladstone v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976). See also Havens Realty Corp. v. Coleman, 455 U.S. 363, 376, 102 S.Ct. 1114, 1122, 71 L.Ed.2d 214 (1982); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); Warth v. Selden, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); Data Processing Service Organization v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). These cases demonstrate that the focus of the standing inquiry must always be the party's "injury in fact" — whether he has suffered a sufficiently concrete injury to justify the invocation of the judiciary's remedial powers. Accord, Motor Coach Industries, Inc. v. Dole, 725 F.2d 958, 963 (4th Cir.1984).

While constitutional analysis of standing requires evaluation of concepts not easily susceptible of precise definition, see Valley Forge Christian College, 454 U.S. at 471-476, 102 S.Ct. at 757-60, the Supreme Court has noted that many standing questions can be answered by comparing the allegations of the particular complaint to those made in prior standing cases. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As the Supreme Court recently instructed in Allen v. Wright, ___ U.S. ___, ___, 104 S.Ct. 3315, 3324-26, 82 L.Ed.2d 556 (1984):

The standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? These questions and any others relevant to the standing inquiry must be answered by reference to the Article III notion that federal courts may exercise power only `in the last resort, and as a necessity,' Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892), and only when adjudication is `consistent with a system of separated powers and the dispute is one traditionally thought to be capable of resolution through the judicial process,1 Flast v. Cohen, 392 U.S. 83, 97 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968).

Defendants assert that the plaintiffs fail to satisfy a critical element for standing because the complaint has not identified any injury within the zone of interests protected by the APA, the National Environmental Policy Act, or the Federal Water Pollution Control Act. For instance, in Cane Creek I, the defendants note that the allegations contained in the plaintiffs' complaint only contend that OWASA is attempting to proceed under an expired Section 404 permit. Yet the plaintiffs allege no...

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    ... ... See e.g., Cane Creek Conservation Authority v. Orange Water and Sewer Authority, 590 F.Supp. 1123, 1128 (M.D.N.C.1984) ... ...

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