Save the Dunes Council v. Alexander, 77-1760

• Decision Date: 21 August 1978
• Docket Number: No. 77-1760,77-1760
• Citation: 584 F.2d 158
• Parties: , 8 Envtl. L. Rep. 20,683 SAVE THE DUNES COUNCIL et al., Appellants, v. Clifford L. ALEXANDER, Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 158

584 F.2d 158

12 ERC 1026, 8 Envtl. L. Rep. 20,683

SAVE THE DUNES COUNCIL et al., Appellants, v. Clifford L. ALEXANDER, Secretary of the Army, Appellee.

No. 77-1760.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 1978.

Decided Aug. 21, 1978.

Marshall Patner, Chicago, Ill., for appellants.

Anne S. Almy, Asst. U. S. Atty., Department of Justice, Washington, D. C., for appellee.

Before PELL and TONE, Circuit Judges, and EAST, ^* Senior District Judge.

EAST, Senior District Judge.

The Appeal:

The appellants Save the Dunes Council, Inc. and several individuals (Council) appeal the adverse summary judgment entered by the District Court on May 10, 1977 in their causes for a Writ of Mandamus and a Declaratory Judgment with mandatory injunctive relief from the action or non-action of the Secretary of the Army (Secretary) under 33 U.S.C. § 426i ¹ (prevention or mitigation of shore damage). We note jurisdiction under 28 U.S.C. § 1291 and affirm.

Proceedings in the District Court:

On August 7, 1973, the Council brought suit to compel the Secretary, and through him, the Chief of the Corps of Engineers (Corps) to take remedial action concerning the Corps' harbor improvements at Michigan City, Indiana. The Council's complaint in Count I alleged that the Secretary and the Corps had the duty to prevent and rectify shore erosion damage to the Indiana Dunes National Lakeshore (Dunes) allegedly caused by the harbor structures at Michigan City and that the Council was entitled to a Writ of Mandamus, pursuant to 28 U.S.C. § 1361, to compel the Secretary to modify the harbor structures in prevention of unreasonable shore erosion.

In Count II of the complaint, the Council alleged that the harbor improvements constituted a nuisance under federal common law and that the Secretary abused his discretion, granted under various Acts of Congress, by failing to stop or alleviate the shore erosion of the Dunes caused by the harbor structures. They further alleged that the District Court held jurisdiction to abate the nuisance under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 and 706(1), as well as under federal question jurisdiction, 28 U.S.C. § 1331.

On November 2, 1973, the Corps moved to dismiss, or in the alternative, for summary judgment. On May 10, 1976, the District Court granted the Corps' motion for summary judgment under the provisions of Fed.R.Civ.P. 56 and entered judgment for the Corps on the Council's Count I. ² The District Court did not deal with the issues under Count II any further than to find:

"(T)he Secretary is currently considering the serious problem of erosion along the (shoreline of the Dunes) in a manner well within the parameters of Title 33.

"(T)he Secretary has properly exercised his discretion by adopting a position with respect to the matter expressed in (Council's) complaint. Since the court is without jurisdiction to order a course of action more favorable to (Council), this cause must be dismissed."

Facts:

Michigan City Harbor is located at the mouth of Trail Creek at Lake Michigan, to the east of the Dunes. ³ Development of the Michigan City Harbor (Harbor) began in 1836. Modified several times during the Nineteenth Century, the harbor structures as they now exist were completed about 1910. The structures were rehabilitated in the late 1960's, without modifications. The Harbor has become a major recreational boating center for the southeastern portion of Lake Michigan.

The shoreline to the east of the Harbor experienced accretion in the period 1870-1940. A Michigan City municipal park, containing a public beach and zoo, is located on the accreted area, immediately to the east of the Harbor. The shoreline to the west of the harbor structures, however, has receded over the years. The erosion above referred to in rather extreme proportion extended into the Dunes through the development of the record before us.

The Dunes was created in 1966 under 16 U.S.C. §§ 460u, Et seq., "to preserve for the educational, inspirational, and recreational use of the public certain portions of the Indiana dunes and other areas of scenic scientific, and historic interest and recreational value in the State of Indiana . . .."

In 1970, the Town of Beverly Shores, Indiana, located within the Dunes, and the Port Authority of Michigan City requested the Corps to study and take remedial action concerning the erosion experienced along the Dunes pursuant to Section 111 of the Rivers and Harbors Act of 1968, 33 U.S.C. § 426i. The Corps undertook a preliminary study of the erosion occurring to the Dunes and the relationship of such erosion to the harbor structures.

The report on this study, called Section 111 Reconnaissance Report, was issued on October 20, 1971. The report concluded that the harbor structures have contributed to approximately 60 percent of the erosion of the Dunes by interfering with the littoral movement of beach building materials to that shore, with high lake levels and steep waves accounting for the remainder. The Reconnaissance Report recommended preparation of a Detailed Project Report to develop plans for mitigation of the shore damage attributable to the harbor structures. The Corps pursued this recommendation and contracted with the engineering firm of Moffatt and Nichol of Long Beach, California, to conduct a study on the Indiana shoreline erosion.

Meanwhile, pursuant to a National Park Service request, the Corps prepared a plan of interim protection for an area where erosion threatened to undermine an access road several miles west of the Harbor. This project consisted of a rock revetment and called for beach nourishment with some 230,000 cubic yards of sand. In 1973, Congress appropriated 3.1 million dollars to the National Park Service for construction of the emergency protection works. The Corps, acting as agent for the Park Service, contracted for the construction of the interim, emergency shore protection works, and construction commenced in the Fall of 1973.

The Corps has, pursuant to resolutions of congressional committees as late as April 11, 1974, issued a final feasibility report, entitled "Interim Report on Indiana Shoreline Erosion," which recommends authorization of a shore protection project to rebuild the beach west of the Harbor from the Northern Indiana Public Service Company (NIPSCO) property to the existing rock revetment (miles 524 to 526) and to replenish the beach periodically. This plan is designed to mitigate only the erosion caused by harbor structures.

In developing the proposed plan, the Corps considered modification of the harbor structures as an alternative. At the minimum, a detached breakwater and most of the east pier would have to be removed. The Harbor would then lose its function as a harbor of refuge, and increased dredging of the channel would be required. The report states that more extensive removal of improvements would probably be required. The maximum removal plan would result in the loss of a portion of the municipal park to the east of the Harbor and the Harbor outer basin. The NIPSCO power plant, located between the Harbor and the Dunes, would have to be modified.

Construction of the recommended project requires congressional authorization and funding. A draft environmental impact statement for the project has been filed with the Council on Environmental Quality. The report on the recommended project is expected to be submitted to Congress in the next year (1979-80).

Issues:

The issues on review are:

1. Whether the Secretary, acting through the Corps, has any peremptory duty under § 426i to take immediate structural modification action to remedy the shore erosion on the Dunes when that erosion is primarily caused by federal navigation improvements, and if so, whether that duty may be enforced through mandamus (Count I); and

2. Whether the Secretary's exercise of discretion is subject to declaratory judgment and mandatory injunctive relief under the APA (Count II). Discussion:

The Council, as private parties, seeks to compel the Corps, by judicial decree, to remedy a situation causing severe damage to a National Park. No issue is raised as to legal standing of the Council.

It is manifest that the judiciary cannot compel through a writ of mandamus a federal official to perform any function unless the official is clearly directed by law to perform such a duty. This Court has held that mandamus jurisdiction is present only when a clear, plainly defined, and peremptory duty on the federal defendant is shown and there is a lack of an adequate remedy other than mandamus. Vishnevsky v. United States, 581 F.2d 1249 (7th Cir. 1978), citing City of Highland Park v. Train, 519 F.2d 681, 691 (7th Cir. 1975), Cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and City of Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976). The peremptory duty must be either a ministerial one or an obligation to act within a specified range of discretion. Davis Associates, Inc. v. Secretary, HUD, 498 F.2d 385, 389 (1st Cir. 1974); Miller v. Ackerman,488 F.2d 920, 921-22 (8th Cir. 1973). Finally, mandamus jurisdiction does not lie to direct the exercise of administrative discretion within its lawful boundaries. Wilbur v. United States, ex rel. Kadrie, 281 U.S. 206, 218-19, 50 S.Ct. 320, 74 L.Ed. 809 (1930).

Before delving further into the Council's entitlement to a writ of mandamus, it is first necessary to meet the prerequisite for any writ of mandamus, namely: is there a lack of an adequate remedy for the Council's grievances other than mandamus? The Council suggests in their Count II such a remedy by way of declaratory and mandatory injunctive relief under the provisions of the APA, §§ 701, Et seq. ⁴ The Council contends that the Corps' interim protection work (rock revetment and beach nourishment) was miniscule, and its delay by conducting studies and recommending what to do, rather than taking positive...