Save the Bay, Inc. v. U.S. Army
| Decision Date | 23 February 1981 |
| Docket Number | No. 79-2154,79-2154 |
| Citation | 639 F.2d 1100 |
| Parties | , 11 Envtl. L. Rep. 20,226 SAVE THE BAY, INC., Plaintiff-Appellant, v. The UNITED STATES ARMY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert W. Smith, Biloxi, Miss., Earl L. Dunham, Ocean Springs, Miss., for plaintiff-appellant.
Robert Hauberg, U. S. Atty., L. K. Travis, Asst. U. S. Atty., Jackson, Miss., for U. S. Army.
David Sebree, Environment Div., Legal Dept., E. I. du Pont de Nemours & Co., Wilmington, Del., Ben H. Stone, Gulfport, Miss., for E. I. du Pont de Nemours & Co. and Southern Miss. Transportation Co.
Boyce Holleman, Stanford E. Morse, Jr., Gulfport, Miss., for Harrison County Development Commission.
Nancy B. Firestone, James W. Moorman, Dirk Snel, Land and Natural Resources Div., Washington, D. C., for EPA.
Appeal from the United States District Court for the Southern District of Mississippi.
Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.
Save The Bay, Inc., a Mississippi non-profit corporation, filed suit for damages and for declaratory and injunctive relief against the United States, the United States Army, the United States Coast Guard, the United States Corps of Engineers, General J. W. Morris and Colonel Charles Blalock of the Corps of Engineers, the Interstate Commerce Commission, E. I. Du Pont de Nemours, a private corporation, and its wholly owned subsidiary, the Southern Mississippi Transportation Company, and the Harrison County, Mississippi Board of Supervisors and its agency the Harrison County Development Commission. Plaintiff complains of violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., particularly § 102 (42 U.S.C. § 4332) thereof, as a consequence of the building of a railroad project, including bridges over Turkey Creek, Delisle Bayou and Wolf River, in Harrison County, Mississippi.
Subsequent to the filing of the original complaint, plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction. Thereafter plaintiff was granted leave to file an amended complaint in which it prayed for: (1) damages of $50,000; (2) a declaratory judgment that defendants have failed to comply with the provisions of NEPA in that the Final Environmental Impact Statement (EIS) filed reflects the need for further environmental study and another EIS should be prepared; and (3) injunctive relief prohibiting defendants from proceeding with construction of the railroad project, particularly the crossings identified above.
After substantial discovery and pre-trial motions and proceedings, the matter came before the court on defendant's motions to dismiss and plaintiff's motion for injunctive relief. The district court entered a memorandum opinion. Certain of the defendants requested a reconsideration. After considering argument, and apparently further filings by affidavit, the court, on April 9, 1979, entered a judgment in six parts, as follows:
(1) That the motion to dismiss the federal defendant Interstate Commerce Commission is sustained;
(2) That the motions to dismiss the other federal defendants are overruled, but said defendants are required to take no further action;
(3) That no further Environmental Impact Statement is necessary;
(4) That the defendants, Harrison County Board of Supervisors and Harrison County Development Commission are enjoined from participating in, assisting in, or in any manner encouraging or allowing spur lines to run from the existing railroad which is the subject of this suit for the service of a paper mill, rendering plant, or fertilizer factory;
(5) That the defendants, Harrison County Board of Supervisors and Harrison County Development Commission are enjoined from participating in, assisting in, or in any manner encouraging or allowing spur lines to run from the existing railroad which is the subject of this suit for any other type facility until and unless public hearings shall be held by the said Board of Supervisors regarding same pursuant to reasonable public notice and determination by the Board of Supervisors that any industry located along said spur line does not constitute a nuisance; and
(6) That the plaintiff herein shall post, incident to the injunction, a $500.00 corporate surety bond to be approved by the Court to pay costs and damages as may be incurred or suffered by defendants for the wrongful issuance of such injunction.
Plaintiff noticed its appeal of paragraphs 2, 3 and 5 of the district court's order.
No further proceedings have been held in the trial court since the appeal was lodged. Pending the scheduling of oral argument the defendants-appellees filed a Motion to Dismiss Appeal as Being Moot. This motion is predicated on the uncontested factual assertion that construction of the railroad is completed and it has been in continuous operation since August 1979. Accordingly, any injunctive relief to prohibit construction of the railroad is moot. A panel of this court ordered that the motion to dismiss be carried with the case for such further consideration as might prove warranted.
Federal courts are courts of limited jurisdiction. We have only the authority endowed by the Constitution and that conferred by Congress. Because we may not proceed without requisite jurisdiction, it is incumbent upon federal courts trial and appellate to constantly examine the basis of jurisdiction, doing so on our own motion if necessary. Fed.R.Civ.P. 12(h)(3); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Accordingly, before addressing the merits of the appeal we must determine whether the order in question is appealable. To be appealable an order must either be final 1 or fall into a specific class of interlocutory orders which are made appealable by statute 2 or jurisprudential exception. 3 In re 1975-2 Grand Jury Investigation, Etc., 566 F.2d 1293 (5th Cir. 1978).
Paragraph 2 of the order denies defense motions to dismiss. Such an order is neither a ruling on the merits nor an effective termination of all or any discrete part of the district court proceedings. It is not appealable under 28 U.S.C. § 1291. See Wallace v. Norman Industries, Inc., 467 F.2d 824 (5th Cir. 1972), and cases cited therein. The reference in paragraph 2 which relieves the federal defendants from taking any further action is understood to be a reference to discovery. An order of the district court relating to pre-trial discovery is not to be lightly disturbed for the trial court is vested with broad discretion in regulating discovery. Imperial Ethiopian Gov't. v. Baruch-foster Corp., 535 F.2d 334 (5th Cir. 1976); Burns v. Thiokol Chemical Corporation, 483 F.2d 300, 304 (5th Cir. 1973) ().
Paragraph 3 of the order holds that no further EIS is...
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