Conservation Council of North Carolina v. Costanzo

• Decision Date: 08 November 1974
• Docket Number: No. 74-1881,74-1881
• Citation: 505 F.2d 498
• Parties: , 5 Envtl. L. Rep. 20,028 CONSERVATION COUNCIL OF NORTH CAROLINA et al., Appellants, v. Col. Albert C. COSTANZO, Wilmington District Engineer, Corps of Engineers,U.S. Army, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 498

505 F.2d 498

7 ERC 1318, 5 Envtl. L. Rep. 20,028

CONSERVATION COUNCIL OF NORTH CAROLINA et al., Appellants, v. Col. Albert C. COSTANZO, Wilmington District Engineer, Corps

of Engineers,U.S. Army, et al., Appellees.

No. 74-1881.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 4, 1974.

Decided Nov. 8, 1974.

Thomas J. Schoenbaum, Chapel Hill, N.C., and Norman B. Smith, Greensboro, N.C. (Smith, Carrington, Patterson, Follin & Curtis, Greensboro, N.C., on brief), for appellants.

David A. Nash, Wilmington, N.C. (Hogue, Hill, Jones, Nash & Lynch, Wilmington, N.C., on brief), for appellee Carolina Cape Fear Corp.

Joseph W. Dean, Asst. U.S. Atty. (Thomas P. McNamara, U.S. Atty., on brief), for appellees.

Norton F. Tennille, Jr., Washington, D.C. (Richard J. Wertheimer and Arnold & Porter, Washington, D.C., on brief), for amici curiae.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit judges.

PER CURIAM:

Conservation Council of North Carolina ¹ sought a preliminary injunction restraining Carolina Cape Fear Corporation from further construction of a marina on Bald Head Island and requiring Constanzo, District Engineer of the Army Corps of Engineers, to prepare and file a detailed environmental impact statement as required by 42 U.S.C. 4332(2)(C).

Bald Head Island is located in the Atlantic Ocean at the mouth of the Cape Fear River and comprises approximately 12,000 acres, 9,000 of which are described as either submerged lands and/or high marsh. In 1970 the island was purchased by Carolina Cape Fear Corporation for development as a residential resort community. To date, development includes a golf course, an inn, several homes and numerous road beds. Pivotal in the overall development of the island is a plan to construct a marina to furnish water access to the resort community. It is over the construction of the marina that the present dispute arises.

To complete the marina, which is to be built entirely on high ground, the Corporation must dredge a channel into the Cape Fear River below the mean high water mark. This dredging, representing only two percent of the total construction, requires a permit from the Corps of Engineers under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403 (1970). Upon the Corporation's application for a permit accompanied by its own Environmental Assessment of the proposed project, the Corps solicited public comment, including comment from various state and federal agencies. The response was overwhelmingly in favor of the permit's issuance, save for opposition from several conservationists numbering among them the plaintiffs in this action. The Corporation, in its plans, had not been wholly oblivious to environmental concerns. In fact, it had made numerous concessions in the construction plans, evidencing its concern in this regard, including strict erosion controls, limitations on dredgespoil fill areas, guarantees to leave 400 acres of highland marine forest in its natural state, and, not least of all, a grant by quitclaim of 9,000 acres of marshes and lowlands to the State of North Carolina. ²

On May 24, 1974 the District Engineer issued a permit under 33 U.S.C. 403, authorizing the Corporation to dredge an access channel to its marina. The District Engineer's written findings concluded that the revised project for marina construction gave proper consideration to public resources in the area and that the issuance of the permit did not constitute a major federal action 'significantly affecting the quality of the human environment,' 42 U.S.C. 4332(2)(c), thus not requiring a detailed environmental impact statement.

On June 5, 1974, this action was filed by the plaintiffs challenging the District Engineer's decision. Plaintiffs additionally sought to enjoin construction under the Federal Water Pollution Control Act, 33 U.S.C. 1311(a) (1972), asserting that the dumping of dredge spoil on salt meadows near the marina site required a Corps of Engineers' permit even though the area was above the mean high water mark. After a full hearing, the District Court denied plaintiffs' motion for a preliminary injunction and dismissed the action on the grounds that the plaintiffs had failed to meet the standing requirement of Section 10 of the Administrative Procedure Act, 5 U.S.C. 702.

On July 24, 1974, the District Court denied plaintiffs' motion for an injunction pending appeal. On July 26, 1974 plaintiffs moved this Court, pursuant to Rule 8, Federal Rules of Appellate Procedure, for an injunction pending appeal. After hearing oral argument on the motion, the Honorable J. Braxton Craven, Jr. granted a limited injunction pending appeal enjoining defendants from opening any channel between the Cape Fear River and the site of the proposed marina, but otherwise leaving defendants free to continue their construction.

I.

Standing under Section 10 of the Administrative Procedure Act, 5 U.S.C. 702, exists only when a plaintiff can satisfactorily demonstrate that the agency action complained of will result in an injury in fact and that the injury is to an interest 'arguably within the zone of interests to be protected' by the statute in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Directly addressing the injury in fact question in an environmental context, the Supreme Court, in Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), recognized aesthetic and environmental concerns as cognizable interests within the meaning of the statutory language. Mere special interest by a plaintiff in the environment is not, however, sufficient to confer standing as a person 'adversely affected' or 'aggrieved'; a plaintiff must allege an individualized interest at stake which would place him among the injured. Id. at 738-740, 90 S.Ct. 1361. The claimed injury need not be great or substantial; an 'identifiable trifle', if actual and genuine, gives rise to standing. United States v. SCRAP, 412 U.S. 669, 687-689, n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

In this case, plaintiffs seek to distinguish themselves as having a direct stake in the outcome of the litigation by allegations of recreational uses of Bald Head Island. ³ Unlike the claims in Sierra Club and SCRAP which involved recreational uses of...