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Save the Bay v. Department of the Army

Citation: 11 ELR 20226
No. No. 79-2154, 639 F.2d 1100/15 ERC 1774/(5th Cir., 02/23/1981)

The court determines that it is without jurisdiction to review the district court's decision in an action to enjoin construction of a railroad project. The district court had (1) denied certain defendants' motions to dismiss, (2) ruled that no further environmental impact statement (EIS) was necessary, and (3) enjoined the construction of spur lines from the existing railroad until public hearings were held. The court rules that the orders denying the motions to dismiss and requiring no further EIS are not appealable because they are neither rulings on the merits nor final orders. Plaintiff also has no grounds to appeal the injunction since it runs in favor of plaintiff. Moreover, the construction issue is moot because the railroad had been completed and has been in operation since August 1979.

Counsel for Plaintiff-Appellant
Report W. Smith
507 Lameuse St., Biloxi MS 39530
(601) 374-1356

Earl L. Denham
Levi, Denham & Russell
P.O. Box 596, Ocean Springs MS 39564
(601) 875-1234

Counsel for Defendants-Appellees
David Sebree
Environment Division, Legal Department
E.I. DuPont de Nemours & Co., Wilmington DE 19898
(302) 774-5113

Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Boyce Holleman
Holleman & Krogstad
P.O. Drawer 1030, Gulfport MS 39501
(601) 863-3142

Counsel for Harrison Cty. Development Comm'n
Stanford E. Morse Jr.
White & Morse
P.O. Drawer, 100, Gulfport MS 39501
(601) 863-9821

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.