Cooper v. Wisdom, 77-4700-Civ-JLK.

• Decision Date: 21 October 1977
• Docket Number: No. 77-4700-Civ-JLK.,77-4700-Civ-JLK.
• Citation: 440 F. Supp. 1027
• Parties: Jay B. COOPER, General Manager Belco Limited d/b/a Banyan Bay Club Apartments, Plaintiff, v. Donald A. WISDOM, Colonel, U.S. Army Corps of Engineers, District Engineer, Department of the Army, Jacksonville, Florida District, Clifford L. Alexander, Jr., Secretary of the Army, the United States of America, Defendants.
• Court: U.S. District Court — Southern District of Florida

440 F. Supp. 1027

Jay B. COOPER, General Manager Belco Limited d/b/a Banyan Bay Club Apartments, Plaintiff, v. Donald A. WISDOM, Colonel, U.S. Army Corps of Engineers, District Engineer, Department of the Army, Jacksonville, Florida District, Clifford L. Alexander, Jr., Secretary of the Army, the United States of America, Defendants.

No. 77-4700-Civ-JLK.

United States District Court, S. D. Florida.

October 21, 1977.

E. W. Frank, Miami, Fla., for plaintiff.

Mary-Ella Johnson, Asst. U. S. Atty., Miami, Fla., for defendants.

ORDER GRANTING PERMANENT INJUNCTION

JAMES LAWRENCE KING, District Judge.

This cause came on for hearing on October 18, 1977, on plaintiff's motion for a temporary order restraining construction under U.S. Corps of Army Engineers Permit No. 77J0248. The court, after considering the pleadings, oral argument, and admissions of fact by counsel, advanced and consolidated the trial of the action on the merits with the hearing of the application for temporary restraining order pursuant to Fed.R.Civ.P. 65(a)(2).

During oral argument, the parties agreed and the government stipulated that the following are the facts which govern this case:

1. On March 23, 1977 the Army Corps of Engineers issued a public notice for an application to dredge and fill Biscayne Bay to construct a boat ramp at the Legion Memorial Park at N.E. 64th Street.

2. On April 20, 1977 the plaintiff notified the Corps of Engineers in writing of a strong opposition to the application and formally requested a public hearing on the application.

3. The District Engineer of the Army Corps of Engineers did not arrange a public hearing and no public hearing was held.

4. The District Engineer of the Army Corps of Engineers did not make a written determination that the issues raised were insubstantial or that there was otherwise no valid interest to be served by a public hearing. Likewise, the District Engineer did not communicate any reasons for the denial of a public hearing to the requesting parties.

Fed.R.Civ.P. 65(a)(2) authorizes this court to consolidate a preliminary injunction hearing with the trial on the merits after commencement of the hearing. Generally speaking, such a consolidation is proper where the parties are not prejudiced by lack of notice. Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096 (5th Cir. 1972). Another factor to consider is whether the factual issues raised by the complaint and the motion for a preliminary injunction were "susceptible of complete examination upon a trial on short notice and were, in fact, examined thoroughly. . . ." City of Rye, New York v. Schuler, 355 F.Supp. 17, 19 (S.D.N.Y.1973). Because the government's forthright admission that there was no hearing or communication to the plaintiff is dispositive, this court concluded that consolidation was appropriate in this case. The hearing was therefore consolidated with trial on the merits, there being no further evidence which could be presented upon full notice to affect the result. Consequently, the determination to be made is whether a permanent injunction should issue.

According to the Code of Federal Regulations, the Corps of Engineers Administrative Procedure requires that a public hearing be held when it is proposed that dredged material be discharged into navigable waters and a "person or persons having interest which may be affected" requests one. 33 C.F.R. § 209.120(i)(1)(v), at 379. The Corps argues that it interprets this duty to be discretionary; however, the language of the regulation is clearly mandatory: "the District Engineer will arrange a public hearing. . . ." Id. (emphasis added). Additionally, the Federal Water Pollution Control Act specifically states that permits for dredged or fill material may be issued only "after notice and opportunity for public hearings." 33 U.S.C. § 1344.

Alternatively, if the duty to conduct a public hearing is discretionary, the Corps of Engineers is required to notify the party requesting a hearing of its reasons for deciding not to hold one. In fact, the regulation section upon which the Corps relies states that

requests for a public hearing under this paragraph shall be granted, unless the District Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing. The District Engineer will make such a determination in writing and communicate his reasons therefore to all requesting parties.

41 Fed.Reg. 28,952, 28,953 (1976) (emphasis added) (to be codified in 33 C.F.R. § 209.133(e)(2)). This court has found, and the government has admitted, that neither was a public hearing held nor was the plaintiff informed in writing of the reasons therefore. Therefore, the conclusion is inescapable — whether public hearings be discretionary or mandatory — that the Corps of Engineers violated its own administrative procedure in issuing this permit.

The statutory policy supporting the holding of public hearings to explore all possible effects of a prospective permit is declared emphatically in the regulations.

It is the policy of the Corps of Engineers to conduct the civil works program in an atmosphere of public understanding, trust, mutual cooperation, and in a manner responsive to the public interest. . . . A public meeting is a forum at which all concerned persons are given an opportunity to present additional information relevant to a proper evaluation of an application for a permit for an activity.

33 C.F.R. § 209.120(k)(1) and (2), at 384-5. Because the Corps in issuing this permit has violated its own administrative regulations and spurned the Congressional policy expressly incorporated in its source of power, this court hereby declares Permit No. 77J0248 to be invalid. It must therefore be set aside as the result of an

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