Potomac Riv. Ass'n, Inc. v. Lundeberg Md. Sea. Sch., Inc.

• Citation: 402 F. Supp. 344
• Decision Date: 11 April 1975
• Docket Number: Civ. No. 73-789-Y.
• Parties: POTOMAC RIVER ASSOCIATION, INC., a Maryland Corporation, and Watermen's Association of St. Mary's County, Inc., a Maryland Corporation v. LUNDEBERG MARYLAND SEAMANSHIP SCHOOL, INC., a Maryland Corporation, et al.
• Court: U.S. District Court — District of Maryland

402 F. Supp. 344

POTOMAC RIVER ASSOCIATION, INC., a Maryland Corporation, and Watermen's Association of St. Mary's County, Inc., a Maryland Corporation v. LUNDEBERG MARYLAND SEAMANSHIP SCHOOL, INC., a Maryland Corporation, et al.

Civ. No. 73-789-Y.

United States District Court, D. Maryland.

April 11, 1975.

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Bernard S. Cohen, Geoffrey Judd Vitt, and Stephen D. Annand, Alexandria, Va., and John J. O'Connor, Baltimore, Md., for plaintiffs.

Aubrey M. Daniel, III, Terry M. Rose, Washington, D.C., and Solomon Kaplan, Baltimore, Md., for defendants Lundeberg Maryland Seamanship School, Inc., Harry Lundeberg School of Seamanship, and Seafarers Piney Point Corp.

William L. Want, Dept. of Justice, Washington, D.C., and James M. Kramon, Assistant United States Atty., Baltimore, Md., for defendants McGarry and Callaway.

JOSEPH H. YOUNG, District Judge:

In this environmental tangle two citizens' organizations seek to curtail dredging and filling activities which have allegedly despoiled St. George Creek in St. Mary's County, Maryland.¹ Plaintiff Potomac River Association, Inc., is a non-profit citizens' association of St. Mary's County residents who use and enjoy the resources of St. George Creek. The Watermen's Association of St. Mary's County is a non-profit organization of County residents who derive their livelihood from tonging oysters in St. George Creek and other local waterways. Both the Potomac River Association and the Watermen's Association have dedicated themselves to the preservation of the economic resources and aesthetic amenities of the Creek.²

Private defendant Lundeberg Maryland Seamanship School, Inc., is a Maryland corporation which owns a large tract of land at Piney Point, in St. Mary's County, which abuts St. George Creek. This corporation, in turn, owns the other private defendant, the Harry Lundeberg School of Seamanship, a New York trust.³ Both corporations have allegedly cooperated in the illegal dredging, filling and bulkheading of St. George Creek at the Piney Point property.

The plaintiffs' second amended complaint alleges generally that the activity of the private defendants in dredging, filling and bulkheading their land along the Creek has damaged the natural marine environment of the Creek and reduced the previously productive oyster industry of the Creek by 77 percent. Plaintiffs allege that negligent construction and maintenance of conduits for dredged materials have allowed waste to enter the stream, and that dredging and filling have caused an accumulation of silt, which has resulted in the smothering and killing of oysters. Plaintiffs also allege that the private defendants have dredged through oyster beds and abandoned six boats in the stream.⁴

The federal defendants are Colonel Robert S. McGarry, the District Engineer for the Baltimore District of the United States Army Corps of Engineers, and Howard Calloway, the Secretary of the Army, who has control and jurisdiction over the Army Corps of Engineers. Beginning in May, 1968, the private defendants sought and procured from the Corps of Engineers five permits for dredging and filling on their Piney Point property. Those permits were issued as follows:⁵

                       Permit           Permit Number            Date of Issuance          Date of Expiration
                         1                NABOP-P2                    5/16/68                    12/31/71
                         2                NABOP-P4                    4/1/68                     12/31/71
                         3                NABOP-P7                    7/19/69                    12/31/72
                         4                NABOP-P9                    11/25/69                   12/31/72
                         5                NABOP-P-10                  6/10/70                    12/31/73
                

Permits 1 and 2 expired, before the institution of this action, on September 26, 1972; permits 3, 4 and 5 have since expired. An application for an extension of permit 2 was filed with the Corps on March 22, 1972, and is now pending; final decision on the permit extension has been postponed pending the outcome of this litigation.⁶

Plaintiffs contend that the private defendants have conducted dredging and filling operations beyond the scope of these permits and in violation of the conditions on permits imposed by Corps regulations, see, e. g., 33 C.F.R. § 209.120(m)(2)(1974). On several occasions, plaintiffs complained of the private defendants' activities to the Corps, whose investigations confirmed the violations. By implication, the plaintiffs contend that the Corps has ignored these repeated violations when issuing new permits. On certain occasions, the Maryland Department of Water Resources found that the private defendants were in violation of Maryland water quality standards and the conditions set forth in both the federal and state permits, and halted the defendants' activities.

The Corps did not execute an environmental impact statement EIS under section 102(C)(2) of the National Environmental Policy Act of 1969 NEPA, 42 U.S.C. § 4332(C)(ii) (1970), for permit number 5, the only permit issued after the effective date of the Act; nor has an impact statement been prepared on the presently pending permit application.

Plaintiffs have asserted a barrage of causes of action and jurisdictional grounds. The substantive theories of relief are as follows:

1. A private cause of action under NEPA and the Administrative Procedure Act APA, 5 U.S.C. § 701 et seq., to require the Corps to complete an EIS for permit 5 and the extension of permit 2;

2. A private cause of action under section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, for damages against the private defendants for harm to the Creek which has resulted in injury to the plaintiffs and their members, and for injunctive relief in the form of restoration of the Creek;

3. A private cause of action under the APA, NEPA, the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (1970), and the Rivers and Harbors Act, to prevent the Corps from issuing any further permits to the private defendants and to prevent the private defendants from engaging in any further dredging or filling along the Creek; and

4. A pendent state claim for violation of Md.Ann.Code, Nat.Res. Art, § 8-1413 (1974), formerly Md.Ann.Code art. 96 A, § 26, which prohibits pollution of the waters of the State of Maryland and declares such pollution to be a public nuisance.

Plaintiffs rely on 28 U.S.C. §§ 1331, 1333, 1343(3) and (4) and the APA to invoke the subject matter jurisdiction of the court. They also ask for declaratory relief under 28 U.S.C. §§ 2201 and 2202.

All federal defendants have moved to dismiss the complaint, arguing that the doctrines of primary jurisdiction, exhaustion of remedies, ripeness and mootness prevent the Court from considering all issues at this time. The private defendants have moved to dismiss, attacking subject matter jurisdiction alleged by the plaintiffs under Title 28 and the APA, and by challenging the plaintiffs' ability to state a claim on which relief can be granted under the myriad of federal laws which the plaintiffs have advanced.

FEDERAL DEFENDANTS' MOTION TO DISMISS

Plaintiffs have requested three forms of relief from the federal defendants: first, they seek a declaration that the continued failure of the Corps to protect the economic and commercial value of subaqueous land held in trust for the public is in violation of the rights of the plaintiffs and the people of the United States; second, they request this Court to order the Corps to revoke and suspend all permits heretofore issued to the private defendants for the purpose of dredging and filling St. George Creek and to order the Corps to prepare an EIS for permits 5 and 6; and finally, they request the Court to enjoin the Corps from issuing any further permits to the private defendants.

The defendants' objections to the requested relief, as discussed infra, are well taken, and the motion to dismiss will therefore be granted. Such relief is moot as to permits 1 through 5 because all work under the permits has been completed, and the permits have now expired. The relief requested as to the extension of permit 2 is inappropriate because the Corps has not yet acted on the permit.

Permits 1 through 5

This Court received this case by transfer under 28 U.S.C. § 1404 on August 8, 1973. By that time permits 1 through 5 had expired, and all work authorized under the permits had been completed by the private defendants, raising the question of whether the expiration of the permits and the completion of the work renders the requested relief moot as to the federal defendants.

The question of mootness must be resolved before a court may assume jurisdiction, Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L. Ed.2d 408 (1965), because mootness goes to the constitutional requirement in Article III that a court may only decide actual cases and controversies. See Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964). A court may not give an opinion where it cannot grant relief or affect the rights of the litigants before it. Amalgamated Ass'n of St. Elec. Ry. & Motor Coach Employees Div. 998 v. Employment Relations Board, 340 U.S. 416, 418, 71 S. Ct. 373, 95 L.Ed. 389 (1951), quoting, St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). When it appears that the thing sought to be prevented has been done and cannot be undone by an order of the court binding the parties before it, the case is moot. See Dyer v. S.E.C., 251 F.2d 512, 513 (8th Cir. 1958), vacated, 359 U.S. 499, 79 S.Ct. 1115, 3 L.Ed.2d 976 judgment recalled, 361 U.S. 803, 80 S.Ct. 40, 4 L.Ed.2d 52 (1959), quoting, Jones v. Montague, 194 U.S. 147, 158, 24 S.Ct. 611, 48 L.Ed. 913 (1904). Although the situation with regard to the private defendants is different, there is no binding order that could...