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Conservation Council of N.C. v. Costanzo

Citation: 5 ELR 20028
No. No. 74-1881, 505 F.2d 498/7 ERC 1318/(4th Cir., 11/08/1974)

The Fourth Circuit Court of Appeals vacates and remands a lower court's dismissal of an action seeking injunctive relief against further construction of a marina on the grounds that the Corps of Engineers failed to file a NEPA impact statement in connection with its grant of a dredging permit to a resort developer. Plaintiffs' claims of prior recreational uses of privately owned lands adjacent to the marina site as either trespassers of licensees do not confer standing, since there is no indication that the developer, as the new owner, will allow such use to continue in the absence of construction. The district court must hold further hearings, however, since plaintiffs may be able to demonstrate a prior legitimate, non-permissive use of certain low-land and submerged areas for travel and recreation, and show that the proposed development will injure their continued enjoyment of these public areas. Such a showing would be sufficient to give plaintiffs standing as injured parties to maintain this action. The court affirms the lower court's denial of a preliminary injunction since plaintiffs have yet to demonstrate that continued construction will injure them, and have not shown a great likelihood of success on the merits.

Counsel for Plaintiffs
Thomas J. Schoenbaum
U.N.C. Law School
Chapel Hill, N.C. 27514

Norman B. Smith
Smith, Carrington, Patterson, Follin & Curtis
704 Southeastern Building
Greensboro, N.C. 27401

Counsel for Defendants
Thomas P. McNamara U.S. Attorney
Joseph W. Dean Asst. U.S. Attorney
U.S. Courthouse
Raleigh, N.C. 27611

David A. Nash
Hogue, Hill, Jones, Nash & Lynch
101 South Third Street
P.O. Box 1268
Wilmington, N.C. 28401