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Save the Dunes Council v. Alexander

Citation: 8 ELR 20683
No. No. 77-1760, 584 F.2d 158/12 ERC 1026/(7th Cir., 08/21/1978) Aff'd

The Seventh Circuit Court of Appeals affirms the district court's grant of summary judgment for defendant, 7 ELR 20518, in a suit to compel the Army Corps of Engineers to take remedial action regarding erosion damage to the Indiana Dunes National Lakeshore caused by harbor improvements in Michigan City, Indiana. Appellants argued, in Count I, that 33 U.S.C. § 426i, which authorizes the Corps to prevent or mitigate shore damage caused by its navigational improvements, creates a mandatory duty enforceable by mandamus. The court rules that the language of § 426i and the congressional intent behind its enactment indicate that the Corps has only a discretionary duty to act which cannot be enforced by mandamus.In Count II, appellants claimed that the harbor improvements constituted a nuisance, and the Secretary of the Army had abused his statutorily granted discretion in failing to stop or alleviate the erosion. The court finds, however, that the Secretary has not abused his discretion and has followed the proper procedures in studying the erosion problem.

Counsel for Appellants
Robert J. Vollen, Marshall Patner
Suite 1300, 109 N. Dearborn, Chicago IL 60602
(312) 641-5570

Counsel for Appellee
James W. Moorman, Ass't Attorney General; Edmund B. Clark, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2701

David T. Ready, U.S. Attorney
Federal Bldg., South Bend IN 46601
(219) 232-3086

For himself, Pell and Tone, JJ.