Sierra Club v. Mason

• Citation: 351 F. Supp. 419
• Decision Date: 31 October 1972
• Docket Number: Civ. No. B-582.
• Court: U.S. District Court — District of Connecticut
• Parties: SIERRA CLUB v. John H. MASON, as Division Engineer, United States Army Corps of Engineers for the New England Division, and Robert F. Froehlke, as Secretary of the Army.

351 F. Supp. 419

SIERRA CLUB v. John H. MASON, as Division Engineer, United States Army Corps of Engineers for the New England Division, and Robert F. Froehlke, as Secretary of the Army.

Civ. No. B-582.

United States District Court, D. Connecticut.

October 31, 1972.

COPYRIGHT MATERIAL OMITTED

Haynes N. Johnson, Stamford, Conn., for plaintiff.

Howard C. Eckenrode, Asst. U. S. Atty., Bridgeport, Conn., for defendants.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

This is a motion for a preliminary injunction in an environmental suit brought to enjoin the dredging of the New Haven, Connecticut, harbor and the deposit of the dredged materials into Long Island Sound because of the failure of the responsible federal agency to prepare an environmental impact statement pursuant to the National Environmental Protection Act (NEPA), 42 U.S. C. § 4332 et seq.

Plaintiff Sierra Club is a non-profit California membership corporation pledged to the preservation and proper management of this nation's natural resources. Some of its members are alleged to live on or near the shore in the area to be affected by the proposed dredging; others are alleged to use the waters in the area for recreational and commercial purposes. The defendants are the Division Engineer (New England) of the United States Army Corps of Engineers and the Secretary of the Army.

The project involves the dredging of the harbor to its previous depth of 35 feet and the deposit of 720,000 cubic yards of dredged materials at a "dump site" in Long Island Sound. The chief environmental dangers foreseen by the plaintiff are the smothering of oyster beds located in the harbor by silt raised in the course of the dredging and a long-term threat of unknown proportions to the ecological vitality of Long Island Sound which may be created by the proposed dumping of polluted dredged material at a site in the Sound some six miles from the harbor.

Jurisdiction is asserted on a number of grounds, including those specified in 28 U.S.C. §§ 1331, 1337 and 1361. Defendants have not challenged this Court's jurisdiction. While the jurisdictional bases of NEPA suits have varied, the Second Circuit has predicated jurisdiction of a similar action upon the Administrative Procedure Act, 5 U.S.C. § 701 et seq., Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970). The alleged threat of environmental damage would also seem sufficient to satisfy the requirements of 28 U.S.C. § 1331, Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (D.Conn. July 7, 1972); Scherr v. Volpe, 336 F. Supp. 882 (W.D.Wis.1971).

Defendants have moved to dismiss for lack of sufficient standing by the plaintiff. Defendants also contend that relief should be denied because NEPA's impact statement requirement does not apply to "maintenance" of a project completed prior to the Act's effective date. Even if the Act applies, defendants contend that no statement is required because the project is not one "significantly affecting the quality of the human environment" within the meaning of 42 U.S.C. § 4332(2)(C). Finally, defendants argue that the plaintiff has failed to establish grounds for issuance of a preliminary injunction.

The federal government began improving New Haven Harbor, now the third busiest in New England after Boston and Portland, in 1852 and has continued to do so over the years. On July 24, 1946 Congress enacted P.L. No. 525, 60 Stat. 634, which adopted the Corps of Engineers' recommendation for modification of the New Haven harbor channel to its present size. The improvements to the channel were carried out between 1948 and 1950, entailing removal of approximately eight million cubic yards of material.

Maintenance dredging in the main channel and nearby river channels has been carried out periodically since that time by the Corps of Engineers. Between 1955 and 1968 approximately two million cubic yards of material were removed during various maintenance operations. All dredged material (spoil) was disposed of at the New Haven "dump site" in Long Island Sound, the same site proposed for depositing spoil from the project here challenged by plaintiff.

As a result of a survey conducted by the Corps of Engineers' Operations Division in February and March, 1970, the Division determined that dredging was required to restore the New Haven harbor channel to its authorized depth of 35 feet to accommodate present navigational requirements. Funds for the performance of this work were requested to be included in the federal budget for fiscal year 1972. These funds were appropriated by Congress, pursuant to such request, in the annual appropriation for Civil Works, Operations and Maintenance. After bids were received, the contract for the project was awarded on June 29, 1972, at a price in excess of $1,000,000. At the request of Connecticut officials, the dredging operation was postponed until October 1, after the oyster spawning season, for fear that the dredging would upset this delicate process. With the filing of this suit on August 30, 1972, defendants agreed to delay any work pending disposition of the motions now under consideration.

Standing

Relying on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the "Mineral King" case, defendants contend that plaintiff lacks standing to bring this action because it has failed to allege injury in fact.¹ In "Mineral King" the Sierra Club had contended that the Club's long-standing concern with and expertise in matters involving the use of natural resources were sufficient to give it standing as a "representative of the public." The Supreme Court rejected this argument, holding that standing requires that "the party seeking review be himself among the injured." 405 U.S. at 735, 92 S.Ct. at 1366. However, the Court also noted that

"nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of respondents." Id.

Implicit in this statement is the conclusion that such allegations as to the Club's members would have been sufficient to afford the Club standing in the action.²

In its complaint here plaintiff states that it is a non-profit California corporation pledged to the preservation, conservation and proper management of the nation's resources; that it has 140,000 members organized into 40 chapters; that many of its members reside in the vicinity of the area here in question, some on or adjacent to the shore of Long Island Sound, and use the area individually or in informal groups for various recreational activities, including hiking, photographing, fishing, sailing, and swimming; and that other members use the area commercially. Paragraph 3 of the complaint states explicitly that "each of these members would be directly injured economically or otherwise, by the actions of defendants herein complained of." These allegations are supported by an affidavit naming specific Club members and their uses of the area in question and stating that these uses would be injured by the action proposed by defendants.³

Defendants' initial response is that plaintiff's failure to join its members as parties is fatal to its cause of action, since all the allegations of injury in fact concern injury to Club members, not to the Club as an entity. But in "Mineral King" the Court nowhere suggested that the Club as a single party plaintiff could establish standing only where it alleged injury in fact to its group activities. Rather the Court took just the opposite position, stating: "it is clear that an organization whose members are injured may represent those members in a proceeding for judicial review." 405 U.S. 727 at 739, 92 S.Ct. 1361 at 1368.

Such injury to Club members is clearly alleged in the complaint and is sufficiently supported by affidavit for purposes of the motion for preliminary injunction.

Defendants' second contention is that plaintiff has not shown that the proposed dredging and dumping will adversely affect the activities of plaintiff's members. "Mineral King" did suggest that injury in fact requires not only use of the affected area by plaintiff but also some impact upon that use by the proposed federal action. 405 U.S. at. 735, 92 S.Ct. 1361.⁴

The extent and specificity of allegations necessary to establish this second aspect of injury in fact will vary from case to case. In some cases, the effect of the proposed action on plaintiff's interests will be immediately self-evident, making unnecessary specific allegations of how injury might occur. Thus in "Mineral King" the Court implied in a footnote that allegations in an amici brief that the Club and its members used the Mineral King valley for recreational purposes would be sufficient to meet the injury-in-fact test. 405 U.S. at 735, 92 S.Ct. at 1366, n. 8. In that case, the challenged action — commercial development of a wilderness area — necessarily would have affected plaintiff's interests, since the essence of those interests was enjoyment of wilderness areas.

The nexus between some uses of a given area by a plaintiff and the effect of defendant's proposed actions may be more tenuous in other cases, such as the present one.⁵ This does not necessarily mean, however, that the nexus must be explicitly elaborated in the pleadings; it is sufficient that a connection be reasonably inferable from the facts alleged. It may well be that a connection sufficient to establish standing can be inferred once the pleadings locate a plaintiff (or, here, a club member) in a given environmental context through his recreational or economic activities or residence and allege that the proposed federal action threatens the quality of that environment. This test may be especially appropriate in instances where little is publicly known about the environmental impact of the challenged action and where plaintiff sues to...