Monongahela Power Co. v. Marsh, Civ. A. No. 78-1712.

• Decision Date: 09 November 1988
• Docket Number: Civ. A. No. 78-1712.
• Parties: MONONGAHELA POWER COMPANY, the Potomac Edison Company, West Penn Power Company, Plaintiffs, v. John O. MARSH, Jr., Lieutenant General John W. Morris, Colonel Max R. Janairo, Jr., Colonel Joseph A. Yore, Corps of Engineers, Defendants, The State of West Virginia, the Sierra Club, West Virginia Highlands Conservancy, National Wildlife Federation, Environmental Defense Fund, the National Audubon Society, Intervenors-Defendants.
• Court: U.S. District Court — District of Columbia

699 F. Supp. 324

MONONGAHELA POWER COMPANY, the Potomac Edison Company, West Penn Power Company, Plaintiffs, v. John O. MARSH, Jr., Lieutenant General John W. Morris, Colonel Max R. Janairo, Jr., Colonel Joseph A. Yore, Corps of Engineers, Defendants, The State of West Virginia, the Sierra Club, West Virginia Highlands Conservancy, National Wildlife Federation, Environmental Defense Fund, the National Audubon Society, Intervenors-Defendants.

Civ. A. No. 78-1712.

United States District Court, District of Columbia.

September 8, 1988.

As Corrected November 9, 1988.

David I. Granger, Clifford & Warnke, Washington, D.C., for plaintiffs.

Bradley S. Bridgewater, Environmental Defense Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for defendants.

Ronald J. Wilson, Washington, D.C., C. William Ullrich, First Deputy, Atty. Gen.'s Office, State of W. Va., Charleston, W. Va., for intervenors-defendants.

MEMORANDUM

JOHN LEWIS SMITH, Jr., District Judge.

On July 25, 1988 this Court granted plaintiffs' motion for summary judgment on their claim that the Corps denied them the opportunity to submit meaningful comments on a number of documentary materials and ex parte communications. The Corps has moved for reconsideration of that decision alleging that the Court disregarded several of its factual and legal arguments. For the reasons set forth in the following discussion, the Court has concluded that the motion for reconsideration must be denied.

The Corps' Failure to Provide Plaintiffs with Notice and Opportunity to Comment on Documentary Materials

The Corps first contends that because the District Engineer is obligated to make all section 404 hearing files available for public inspection, see 33 C.F.R. § 327.5(b) (1977), the Court erred by holding that the Corps denied plaintiffs notice and an opportunity to comment on a number of documentary materials in its files which related to significant facts and conclusions in the District Engineer's findings of fact. The Court fully considered and rejected this contention in the Corps' first volley of arguments and rejects it again as re-emphasized in the motion for reconsideration.¹ By relying on 33 C.F.R. § 327.5(b) as an excuse for its failure to provide plaintiffs affirmative notice and an opportunity for comment on the documents in question, the Corps would have the Court disregard the Corps' agreement to "notify plaintiffs whenever any major substantive comments or materials were received concerning the permit application", Stipulation at ¶ 10, and the District Engineer's agreement to furnish plaintiffs with copies of all correspondence received in his office, Stipulation at ¶ 18. It is neither sufficient, nor reasonable, in this Court's opinion, for the Corps to retroactively resort to the convenient language of 33 C.F.R. § 327.5(b), as an explanation for its failure to notify plaintiffs about the documentary materials at issue. Stated more particularly, plaintiffs were entitled to rely on the Corps' representations that they would be notified of all material comments and documents received by the Corps and provided with copies of all correspondence received in the District Engineer's office, and not be encountered by numerous factual findings and conclusions that had been based on documentary materials they had never seen nor had the opportunity to comment on, only to then be confronted by the Corps' sharp post hoc argument that it did not have any obligation to provide plaintiffs with the documents in question beyond "making its files available for public inspection".

The Court also again rejects the Corps' arguments that internal comments, reports or criticisms were exempt from the understanding between the parties regarding the disclosure of comments and documents. As previously noted, such internal comments and reports should be disclosed because they have potentially critical consequences in administrative proceedings and "may be biased, inaccurate, or incomplete failings which adversary comment may illuminate". Home Box Office v. FCC 567 F.2d 9 at 55 (D.C.Cir.1977).

Ex Parte Contacts

Defendants' principal contention regarding the Court's conclusions in respect to its failure to document the substance of ex parte contacts in the record is that plaintiffs forfeited...