HART AND MILLER, ETC. v. CORPS OF ENGINEERS, ETC.

• Decision Date: 23 December 1980
• Docket Number: Civ. No. HM77-973.
• Citation: 505 F. Supp. 732
• Court: U.S. District Court — District of Maryland
• Parties: HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC. and Honorable Clarence Long, M. C. and Honorable Norman R. Stone and Maryland Wildlife Federation, Inc. and John Henderson and Howard Sappington and George Wohlleben and Robert Scott and Margaret Caldwell and Charles Justice, Plaintiffs, v. The CORPS OF ENGINEERS OF THE UNITED STATES ARMY and Honorable Clifford L. Alexander, Secretary of the Army and Lt. Gen. John W. Morris, Chief of Engineers of the United States Army and Col. G. K. Withers, District Engineer, Baltimore District, U. S. Army, Corps of Engineers, Defendants, State of Maryland Ex Rel. Francis B. Burch, Attorney General and Steamship Trade Association of Baltimore, Inc., Intervening Defendants.

505 F. Supp. 732

HART AND MILLER ISLANDS AREA ENVIRONMENTAL GROUP, INC. and Honorable Clarence Long, M. C. and Honorable Norman R. Stone and Maryland Wildlife Federation, Inc. and John Henderson and Howard Sappington and George Wohlleben and Robert Scott and Margaret Caldwell and Charles Justice, Plaintiffs, v. The CORPS OF ENGINEERS OF THE UNITED STATES ARMY and Honorable Clifford L. Alexander, Secretary of the Army and Lt. Gen. John W. Morris, Chief of Engineers of the United States Army and Col. G. K. Withers, District Engineer, Baltimore District, U. S. Army, Corps of Engineers, Defendants State of Maryland Ex Rel. Francis B. Burch, Attorney General and Steamship Trade Association of Baltimore, Inc., Intervening Defendants.

Civ. No. HM77-973.

United States District Court, D. Maryland.

December 23, 1980.

COPYRIGHT MATERIAL OMITTED

Edward B. Rybczynski and Ralph K. Rothwell, Jr., Baltimore, Md., for plaintiffs.

Russell T. Baker, Jr., U. S. Atty., D. Md., and Edward M. Norton, Jr., Asst. U. S. Atty., Baltimore, Md., Nancy Long and Lawrence R. Liebesman, Attys., Dept. of Justice, Washington, D. C., for defendants The Corps of Engineers and the Secretary of the Army.

James K. Robinson and Michael B. Hare, Baltimore, Md., for Baltimore Dist. Corps of Engineers.

William C. Stifler, III, and Warren K. Rich, Baltimore, Md., for intervening defendant Steamship Trade Ass'n of Baltimore, Inc.

Stephen H. Sachs, Atty. Gen. of Md., Paul F. Strain, Scott A. Livingston and Robert B. Harrison, III, Asst. Attys. Gen., Baltimore, Md., for intervening defendant State of Md.

HERBERT F. MURRAY, District Judge.

This lawsuit involves the planned construction of a diked dredged spoil disposal facility at the Hart and Miller Islands in Baltimore County, Maryland. On June 30, 1977, a number of environmental groups and concerned individuals filed suit against the United States Army Corps of Engineers, challenging the Corps' decision to issue a permit to the State of Maryland for the Hart and Miller Islands disposal structure.¹ This court granted the motions of the State of Maryland and the Steamship Trade Association of Baltimore, Inc. to intervene as defendants in this action on October 10, 1977.

On May 31, 1978, all parties filed cross-motions for summary judgment. By memorandum and order dated October 24, 1978, 459 F.Supp. 279, this court granted plaintiffs' motion for summary judgment on Count One of their complaint. The court held that the Corps of Engineers erroneously processed the State of Maryland's permit application according to the provisions of section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, rather than section 9 of the Act, 33 U.S.C. § 401, which, unlike section 10, requires Congressional approval before a permit is issued. The Fourth Circuit Court of Appeals reversed this decision, however, 621 F.2d 1281 (1980), and the Supreme Court denied plaintiffs' petition for a writ of certiorari, ___ U.S. ___, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980). Consequently, the case is now before this court for the disposition of the still pending cross-motions for summary judgment on the remaining counts of plaintiffs' complaint. On September 19, 1980, the parties submitted supplemental memoranda making current their previously filed summary judgment pleadings, and the cross-motions for summary judgment were the subject of oral argument before the court on October 10, 1980.

I. BACKGROUND

On February 23, 1972, the State of Maryland, through its Department of General Services, filed an application with the Army Corps of Engineers for a permit pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and section 404 of the Federal Water Pollution Control Act Amendments of 1972, as amended, 33 U.S.C. § 1344, to construct a diked dredged spoil disposal facility at the Hart and Miller Islands in the Chesapeake Bay. The Hart and Miller Islands site was selected by the State of Maryland on the basis of a study performed in 1969 by Green Associates and Trident Engineering Associates (A.R. 3, 122).² Trident and Green, now known as Century Engineering, is a private contractor and was retained by the State of Maryland to perform this study as well as to design the diked disposal structure.

The Hart and Miller Islands are located within the Chesapeake Bay approximately thirteen miles east of Baltimore, Maryland. The dike and containment area is to be constructed on the bayward (eastern) side of the Hart and Miller Islands about one mile from the mainland and will occupy an area of 1,100 acres or approximately two square miles. The stated purpose of the diked disposal area is to contain approximately fifty-two million cubic yards of dredged spoil to be removed from the Baltimore Harbor and its approach channels.

When the dike is completed, its walls will stand eighteen feet above mean low water, somewhat higher than the current maximum elevations of the Hart and Miller Islands, which are 5.5 feet and 2.3 feet, respectively. However, only twelve percent of Hart Island and fifty-two percent of Miller Island will be covered by the disposal area. Basically, the disposal area will be rectangular in shape with the islands fitting into the northwestern, longer side of the area and the structure occupying principally an area to the southeast of the islands. Dredged spoil will be transported to the disposal area by pumping the material through hydraulic pipelines either from the dredging sites in the Baltimore Harbor or from barges which will carry the dredged spoil from the dredging site to the disposal area. The dredged material will be pumped into the diked containment area and the sand walls of the dike will allow the water to percolate out of the containment area, leaving only the dredged material inside. Once the area has been completely filled with dredged spoil, the entire structure will be at the height of eighteen feet above mean low water. As a means of protection against erosion on the bayward side of the structure, this side will be rip-rapped with stone, all other sides consisting of the sand-constructed walls of the dike.

The Corps of Engineers held a public hearing on August 29, 1972 to consider the State of Maryland's permit application (A.R. 57). On February 22, 1973, the Corps completed its draft Environmental Impact Statement (A.R. 177). At least in part to address objections raised to the proposed Hart and Miller Islands project, the State of Maryland arranged to have a private consultant, Roy Mann Associates, Inc., evaluate certain aspects of the plans for the structure. The Mann Report was completed in July 1975, and is entitled, "Peer Review of the Evaluation of Hart and Miller Islands and Alternatives for Dredged Materials Disposal" (A.R. 634). A second public hearing was held on May 10, 1975 (A.R. 527), and in February 1976, the Corps of Engineers, as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., issued its Final Environmental Impact Statement (E.I.S.) (A.R. 745). Upon completion of the Impact Statement, the District Engineer for the Baltimore District prepared a report on the application recommending issuance of the permit with the inclusion of certain conditions in the permit (A.R. 744). This recommendation was concurred in by the Corps' North Atlantic Division on March 8, 1976 (A.R. 755), and the final report was sent to the Corps' headquarters in Washington for final approval. Final approval was given in November 1976, and the State of Maryland was issued a permit for the diked disposal facility under 33 U.S.C. §§ 403 and 1344 (A.R. 815, 816, 817).

II. PRIVATE RIGHT OF ACTION

The court feels it necessary to address at the outset an issue to which two of the parties have made reference in their pleadings. On November 17, 1978, defendant State of Maryland filed a supplemental memorandum raising the issue of whether a private right of action may be maintained under the Rivers and Harbors Act. In the current posture of the case, however, this issue need not be decided. This is because only Count One of plaintiffs' complaint, which has already been determined to be without merit, is founded solely upon the Rivers and Harbors Act; the remaining counts are based primarily upon the National Environmental Policy Act (NEPA).

Summary judgment in favor of plaintiffs on Count One of their complaint had already been entered by this court at the time defendant State of Maryland's supplemental memorandum was filed. However, there were pending before this court at that time the motions of three defendants seeking a reconsideration of the court's summary judgment ruling. Presumably, it was in conjunction with these motions that defendant State of Maryland submitted its supplemental memorandum on the private cause of action issue; the matter is not raised in defendant State of Maryland's supplemental memorandum filed on September 19, 1980, submitted in support of defendant State of Maryland's motion for summary judgment on those counts of plaintiffs' complaint which are still pending.

The question of whether a private cause of action should be recognized in this case is nonetheless before the court at this time, because it is raised in the supplemental memorandum of defendant Steamship Trade Association of Baltimore, Inc., filed on September 19, 1980, in support of its motion for summary judgment. The Steamship Trade Association's memorandum discusses whether there is a private cause of action under the Rivers and Harbors Act, and, as stated above, that is no longer an issue in this case. Defendant Steamship Trade Association's memorandum, however, also cites the case of Mountainbrook Homeowners Association, Inc. v. Adams, 492 F.Supp. 521 (W.D.N.C.1979), aff'd, 620 F.2d 294 (4th Cir. 1980), opinion published at 10 ELR 20352 (May 16, 1980), and the Mountainbrook opinion discusses whether or not there is a private cause of action available under NEPA. This issue, of...