Hough v. Marsh, Civ. A. No. 81-1822-N.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 557 F. Supp. 74
• Decision Date: 19 November 1982
• Docket Number: Civ. A. No. 81-1822-N.
• Parties: Henry Beetle HOUGH, et al., Plaintiffs, v. John O. MARSH, Jr., as he is Secretary of the Army, et al., Defendants.

557 F. Supp. 74

Henry Beetle HOUGH, et al., Plaintiffs,
v.
John O. MARSH, Jr., as he is Secretary of the Army, et al., Defendants.

Civ. A. No. 81-1822-N.

United States District Court, D. Massachusetts.

November 19, 1982.

557 F. Supp. 75

COPYRIGHT MATERIAL OMITTED

557 F. Supp. 76

Thomas B. Bracken, Bracken & Baram, Boston, Mass., for plaintiffs

Asst. U.S. Atty., Nancy Serventi, Boston, Mass., for defendants Marsh and Edgar.

Stanley H. Rudman, Guterman, Horvitz, Rubin & Rudman, Boston, Mass., for defendants Harbor View, Carroll and Jones.

Richard McCarron, Town Counsel, Edgartown, Mass., for defendant Anderson.

MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

This case involves an attempt by two individuals, defendants Carroll and Jones, to construct for their private use two residences and a tennis court on a three-acre tract of land abutting Edgartown Harbor on Martha's Vineyard. A necessary step in this undertaking is the deposit of 6500 cubic yards of landfill on approximately one-quarter acre of wetlands — an action requiring approval by the Army Corps of Engineers (the Corps) under section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344. At issue here is the propriety of the Corps' decision granting a permit for such fill. The plaintiffs, ten residents of Edgartown, allege that the Corps' action contravenes the provisions of, and regulations accompanying, three federal statutes — the CWA, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. — along with those of certain state and local laws. The defendants, who in addition to the private developers include the Secretary of the Army, the Corps engineer who issued the § 404 permit here and the Edgartown building inspector, contend that all statutory directives have been satisfied. Both sides have moved for summary judgment.

Background

The following facts are undisputed. The parcel of land in question is in a scenic area known as "Starbuck's Neck," between North Water Street and the harbor shoreline. Directly across the street is the Harbor View Hotel, also owned by defendants Carroll and Jones. The parcel is separated from the harbor and a connecting saltwater pond only by a narrow barrier beach and a gravel roadway curving out to the Edgartown lighthouse some 270 yards away.

In May 1976, the private defendants commenced the arduous task of obtaining all necessary governmental authorizations by applying to the Edgartown Board of Selectmen for building permits. These permits were signed but remained undelivered pending compliance with other local requirements. Second, the defendants applied to the Edgartown Planning Board for endorsement of a plan subdividing the project site into two lots. Construing the application as a proposed "Development of Regional Impact" under Mass.St.1974, c. 637, the Planning Board referred it to the Martha's Vineyard Commission (MVC), a regional commission created to ensure that "land usages" do not "unduly" impair the "unique natural, historical, ecological, scientific and cultural values of Martha's Vineyard." Id. § 1. Following a public hearing, the MVC on September 16, 1976, disapproved of the proposed subdivision, stating that the plan would "be detrimental to the public welfare," that it would "cause irreversible environmental damage," and that "no benefits existed to offset these detrimental impacts." Although the defendants never appealed this ruling, the residents of Edgartown subsequently voted, in a referendum on April 13, 1978, and pursuant to Mass.St.1977, c. 836, to withdraw from the MVC. Third, on December 2, 1976, the defendants provided the Edgartown Conservation

557 F. Supp. 77

Commission with notice of its project as required by the Wetlands Protection Act, Mass.G.L. c. 131, § 40. Following two preliminary stages of administrative hearings examining the propriety of the proposed fill and construction, an adjudicatory hearing was held before the Massachusetts Department of Environmental Quality Engineering (DEQE). On December 20, 1979, the DEQE Commissioner ruled that the contemplated development would impinge upon none of the environmental concerns embraced by the Wetlands Protection Act and thus could proceed without condition

As the local regulatory processes were winding down, the federal process commenced. Immediately following the DEQE decision, the private defendants, apparently unaware of the applicability of the Clean Water Act,¹ initiated filling operations. Upon receipt of a cease and desist order from the Corps, they applied under section 404 of the CWA for approval to retain the fill unlawfully discharged and to deposit additional fill on the site. The Corps disseminated public notice of the permit application and, in response to its invitation for public comment, received 259 written objections to the project, including a petition bearing over 200 signatures and letters from the Vineyard Open Land Foundation and the 1000-member Vineyard Conservation Society, Inc. A single letter was received in support of the project. The views of three interested federal agencies, also solicited by the Corps, were less one-sided. The Environmental Protection Agency urged that the permit be issued, concluding that the development would have insignificant effects on marine fisheries, shell fisheries, waterfowl and wildlife and would cause no "permanent unacceptable disruption to the aquatic ecosystem of the salt pond or Edgartown Harbor." The National Marine Fisheries Service and the Fish and Wildlife Service, by contrast, recommended denial of the permit. The former, while acknowledging the parcel to be "of marginal value to fishery resources," cited the loss of "nutrients and habitat to the surrounding ecosystem." The latter characterized the area as a "valuable" habitat for wildlife, a "storage area for storm and flood water," and a "buffer zone acting to filter and trap runoff and pollutants."

Armed with these sundry submissions, the transcript of the DEQE hearing and its own field reports, the Corps determined that a public hearing on the section 404 permit application was unnecessary for an informed agency decision. That decision was announced on May 6, 1981, in favor of the applicants. In his Findings of Fact and an accompanying Environmental Assessment,² the Division Engineer — after canvassing an array of environmental, aesthetic, economic, historic and other considerations—concluded that the applicants' "right to reasonable use of their property for reasonable residential purposes" overrode the minimal impact of the development on these values and that it was therefore "in the public interest to issue this permit." The plaintiffs now seek to overturn the Corps' determination for its alleged failure to have considered sufficiently, or at all, several factors highly germane to the section 404 inquiry.

Jurisdiction and Cause of Action

Plaintiffs seek review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. Except when a statute specifically precludes judicial review or when agency action is committed to agency discretion

557 F. Supp. 78

by law, id. § 701(a), the APA authorizes review of all "final agency action for which there is no other adequate remedy in a court," id. § 704, at the behest of any person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." Id. § 702. It is now settled that, although the APA provides no independent source of subject-matter jurisdiction, Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-985, 51 L.Ed.2d 192 (1977), APA review can properly rest on the grant of federal-question jurisdiction in 28 U.S.C. § 1331(a). E.g., id. at 105, 97 S.Ct. at 984; CETA Workers' Org. Comm. v. New York, 617 F.2d 926, 935 (2d Cir.1980). The defendants contend, however, that APA review of Corps decisions under the Clean Water Act is unavailable because an "adequate remedy" already exists. They point to the citizen-suit provision in section 505, 33 U.S.C. § 1365, which authorizes private actions against (1) any person alleged to be in violation of an "effluent standard or limitation under this chapter" or of an EPA or state order "with respect to such a standard or limitation," and (2) the EPA Administrator for failure to perform "any act or duty under this chapter which is not discretionary." Id. § 1365(a). Relying on Middlesex County Sewerage Auth. v. National Sea Clammers Assoc., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1980), in which the Court rejected the suggestion that the CWA authorized by implication additional private rights of action, the defendants argue that section 505 provided plaintiffs with their only available remedy. As plaintiffs admittedly have failed to comply with the notice requirement prescribed by section 505(b), it is contended that the action must be dismissed

This argument misconstrues the CWA's enforcement mechanism. Section 505 by its express language is inapplicable to the present suit, even if it otherwise encompasses the section 404 permit process. Plaintiffs are not seeking to enjoin private conduct allegedly violative of the statute, nor to compel an agency official to perform a nondiscretionary duty. Quite to the contrary, they are alleging an abuse of discretion in the issuance of a permit. That such an administratively-oriented complaint differs from those contemplated by the citizen-suit provision is suggested by section 509, which states that review of specified actions of the EPA Administrator — including the issuance or denial of a National Pollutant Discharge Elimination System permit under 33 U.S.C. § 1342 — may be had at the Court of Appeals level. Id. § 1369(b)(1). This provision makes no reference to section 404 permits. However, contrary to the alternative implication in defendants' argument, it is...