Save Our Sound Fisheries Ass'n v. Callaway, Civ. A. No. 5297.

Citation387 F. Supp. 292
Decision Date05 March 1974
Docket NumberCiv. A. No. 5297.
PartiesSAVE OUR SOUND FISHERIES ASSOCIATION v. Howard H. CALLAWAY, Secretary of the Army, et al.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

COPYRIGHT MATERIAL OMITTED

Ernest C. Torres, John R. Allen, Hinckley, Allen, Salisbury & Parsons, Providence, R. I., for plaintiff.

Everett Sammartino, Asst. U. S. Atty. R. I., John F. Dolan, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

Plaintiff is a non-business corporation whose membership is comprised of corporations engaged in harvesting and processing fish, shellfish and lobsters found in Rhode Island Sound and adjacent coastal waters and sold primarily for human consumption. Plaintiff sues to enjoin defendants, the Secretary of the Army and the Chief of the Corps of Engineers of the United States Army, as well as a private corporation retained under Government contract, from dumping certain dredged spoil at an ocean dumping site located off the coast of Newport, Rhode Island, approximately 4.6 miles southeast of Brenton Reef Light (hereinafter referred to as the "Brenton Reef site"). Plaintiff alleges that the proposed dumping of dredged spoil will materially damage the marine environment and the fisheries resources from which the plaintiff's members derive a significant portion of their livelihoods and that it will violate several allegedly applicable statutes.

The proposed dredging, from which approximately 100,000 cubic yards of spoil will be generated, is the removal of three shoals from the Providence River, the final episode in the so-called Providence River and Harbor Project, the history of which can be traced briefly.

On October 27, 1965, Congress authorized the Corps of Engineers to dredge the Providence River from 35 to 40 feet below mean water along its entire length. Between September, 1967 and June, 1971 approximately 9.8 million yards of material have been dredged from the channel. The particular dumping in question in this suit, however, involves the proposed final phase of this dredging and dumping operation, which was the subject of a separate request for a Congressional appropriation and a separate bidding and contracting procedure which resulted in the contract award to Great Lakes. The decision to dump at the Brenton Reef site was made sometime before the Corps' request for a supplementary Congressional appropriation in March, 1973. Sometime in May, 1973, the New England Division of the Corps (the "Corps") completed the specifications for the work in question. On May 21, 1973, advance notice of the proposed work was sent to prospective bidders and on June 1, 1973, the contract was advertised for bid. The contract was awarded to Great Lakes on June 29, 1973 and "notice to proceed" was issued on July 24, 1973.

Prior to the contract award, the Corps prepared a draft "environmental impact statement" (EIS), see National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321 et seq.), which was circulated to various groups and governmental agencies for comment on May 2, 1973. On May 25, 1973, the draft EIS was submitted to the Council on Environmental Quality (CEQ). Between May 14, 1973 and July 16, 1973, comments on the proposed project were received from some of the organizations and governmental agencies to which the draft EIS had been circulated. A final EIS was filed with the CEQ on October 17, 1973.

As early as January 26, 1972, the Corps received notice from John R. Allen, Esq. as attorney for certain of plaintiff's members, that public hearings be held in connection with all proposed dredging projects that might result in dumping at the Brenton Reef site.1 Although a public hearing was held on April 26, 1960, no hearings on this final and separate phase of the Project have been held by the Corps.2 In addition, no permit for dumping at the proposed site has been applied for or issued. Dep. of John Leslie at 72, 93-94. See Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. § 1413; Federal Water Pollution Control Act of 1972, 33 U.S.C. §§ 1311(a), 1344.3

A formal "notice of violation" was sent to the defendants by plaintiff on August 1, 1973, and on August 7, 1973 this suit was commenced. Plaintiff's allegations include the following:

(1) That defendants failed to apply for permits to dump the dredged spoil at the proposed site, and that plaintiff has received no notice or opportunity for public hearings regarding the proposed dumping. Plaintiff alleges that this failure is in violation of federal and state laws, in particular the Federal Water Pollution Control Act of 1972, (FWPCA) 33 U.S.C. §§ 1311(a), 1342(a), 1343 and 1344; the Marine Protection, Research, and Sanctuaries Act of 1972, (MPRSA) 33 U.S.C. § 1413 and Rhode Island General Laws §§ 46-17.1-1 and 46.17.1-2.
(2) That defendants failed to prepare a timely "environmental impact statement" (EIS), as required by the National Environmental Policy Act of 1969, (NEPA) 42 U. S.C. § 4332(2)(c) and the "Guidelines" issued by the Council on Environmental Quality ("CEQ"), 36 Fed.Reg. 7724 et seq. (1971); 38 Fed.Reg. 20550 et seq. (1973).
(3) That defendants failed to notify and consult with appropriate Federal and State officials and other interested parties regarding the intention to issue a permit for and/or the anticipated effects of such dumping as required by the MPRSA, 33 U.S.C. § 1413(a); The Fish and Wildlife Coordinating Act of 1934, 16 U.S.C. § 661 et seq., NEPA, 42 U.S.C. § 4321 et seq. and regulations promulgated pursuant thereto.
(4) That defendants have failed to obtain certification from the State of Rhode Island that the proposed dumping will comply with the provisions of the FWPCA, as required by 33 U.S.C. § 1341 and regulations thereto.
(5) That the dredged spoil contains polluted and toxic materials the dumping of which will violate applicable effluent and water quality standards and ocean dumping criteria established by the Environmental Protection Agency and the State of Rhode Island.

It is undisputed that the proposed dumpsite is located in "ocean waters" as that term is defined in the Marine Protection, Research and Sanctuaries Act, and in "navigable waters" as that term is defined in the Federal Water Pollution Control Act.

A temporary restraining order was initially entered on August 9, 1973, and remained in effect by agreement of the parties. After defendants removed their consent from the continuation of the initial restraining order, a subsequent TRO was issued on February 1, 1974 and extended for good cause shown on February 11, 1974, in light of the pendency of motions which could be dispositive of the case. By agreement of the parties, that TRO has been extended to March 1, 1974.

The case is now before the Court on defendants' Motion for Judgment on the Pleadings and plaintiff's Motion for Summary Judgment.

JURISDICTION

Jurisdiction is alleged under the "citizen suit" provision of the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g), the "citizen suit" provision of the Federal Water Pollution and Control Act of 1972, 33 U.S.C. § 1365, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and under 28 U.S.C. §§ 1331, 1332 and 1346.4 Defendants move for judgment on the pleadings, alleging that this Court lacks subject matter jurisdiction over this action and, furthermore, that they are immune from such a suit under the doctrine of sovereign immunity.

The major thrust of plaintiff's complaint is that the defendants failed to comply with the procedural requirements of various federal laws relating to environmental protection, in that they allegedly failed to obtain permits, give public notice and opportunity for hearing and make public disclosure of anticipated environmental impact prior to commencing a federal project in which dredged spoil would be dumped in the ocean waters off Brenton Reef.

I find clear authority for this Court taking jurisdiction over such a claim of alleged failure of an agency to comply with procedural mandates of federal law relating to environmental matters. See Calvert Cliffs' Coordinating Committee v. U. S. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971); The Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S. App.D.C. 380, 463 F.2d 783 (1971); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970); Sierra Club v. Froehlke, 359 F.Supp. 1289, 1335 (S.D. Tex.1973); Sierra Club v. Mason, 351 F.Supp. 419 (D.Conn.1972); Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F.Supp. 696 (S.D.N.Y.1972); Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971); Environmental Defense Fund v. Corps of Engineers, 324 F.Supp. 878 (D.D.C.1971); Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 728 (E.D. Ark.1971).

Although the above cited cases generally deal with the alleged failure of a federal agency to comply (or comply adequately) with the procedural requirements of NEPA, I find them equally as controlling on the question of jurisdiction over alleged failure to comply with the procedural mandates of other environmental legislation as well, such as FWPCA and MPRSA. The bulk of those cases hold that jurisdiction is properly in the federal court under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. See e. g., National Helium Corp. v. Morton, supra; Sierra Club v. Froehlke, supra; Sierra Club v. Mason, supra; Citizens for Clean Air, Inc. v. Corps of Engineers, supra, whereas others imply that federal courts have the power, under the environmental legislation itself, to review cases alleging a failure to comply with the procedural steps required therein. See Calvert Cliffs Coordinating Committee v. U. S. Atomic Energy Commission, supra, 449 F.2d at 1115; Environmental...

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