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United States v. Irving, City of

Citation: 10 ELR 20408
No. No. CA-3-78-1617-D, 482 F. Supp. 393/(N.D. Tex., 08/29/1979)

Denying defendant's motion to dismiss a suit challenging its operation of a landfill, the court rules that both the United States and the City of Dallas have an implied right of action to enforce § 14 of the Rivers and Harbors Act. This conclusion is mandated by application of the four-part test set out in Cort v. Ash and by the fact that a similar result has been reached by a majority of the courts to have considered the question. Since the injuries sought to be remedied by the city are concrete and within the zone of interests protected by § 14, the city has standing to sue. In addition, the court determines that the United States has an implied right to sue to enforce 33 U.S.C. § 701, which involves maintenance of Corps of Engineers flood control projects by local authorities. However, the court concludes that such a cause of action should not extend to the plaintiff city because it would interfere with the regulatory program established by the Secretary of the Army under the Act. Given the existence of a valid federal cause of action, the court elects to exercise its pendent jurisdiction to entertain the state nuisance claims raised by plaintiffs. The court also grants a motion to intervene filed by several private and municipal parties, ruling that they are also entitled to bring implied causes of action under §§ 10 and 14 of the Rivers and Harbors Act.

Counsel for Plaintiffs
Claude Brown, Ass't U.S. Attorney
310 U.S. Courthouse, 10th & Lamar Sts., Ft. Worth TX 76102
(817) 334-3291

Analeslie Muncy, Ass't City Attorney
1500 Marilla St., 7B North, Dallas TX 75201
(214) 670-3510

Counsel for Defendants
Donald J. Rorschach, City Attorney
825 W. Irving Blvd., Irving TX 75060
(214) 253-2541

Robert Smith, W. Kyle Gooch
Smith, Smith, Dunlap & Canterbury
4050 First Nat'l Bank Bldg., Dallas TX 75202
(214) 748-7051

Counsel for Intervenor-Plaintiffs
Mike McCool Jr., R. Hunter Summers
Hewitt, Johnson, Swanson & Barbee
4700 First Int'l Bldg., Dallas TX 75270
(214) 653-2000