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Akers v. Resor

Citation: 2 ELR 20221
No. No. C-70-349, 339 F. Supp. 1375/3 ERC 1979/(W.D. Tenn., 03/28/1972) pretrial ruling to isolate issues

In a pretrial ruling to isolate the issues in a suit to enjoin a Corps of Engineers stream-channelization project on the Obion and Deer Fork Rivers, the court holds that the Fish and Wildlife Coordination Act and the National Environmental Policy Act of 1969 prohibit further construction of the project until the Corps has submitted a plan to Congress for mitigation of the adverse environmental impact of the project. Plaintiffs' claim that the Corps has not complied with the federal statutory requirement which prohibits construction of Corps projects until the pertinent local governments have given assurances that they will maintain the project and otherwise perform their obligations under federal law is dismissed. The adequacy of the required assurances is a matter committed to the discretion of the Secretary of the Army and is not subject to judicial review. Moreover, plaintiffs lack standing to raise this issue because their environmental interest is not within the zone of interests to be protected by this statutory provision.

Counsel for Plaintiffs
Charles H. Warfield
Warfield, Entrekin & Jones
Third National Bank Building
Fourth and Church Streets
Nashville, Tennessee 37219

Counsel for Federal Defendants
Howard Sigmond Attorney
Lands and Natural Resources Division
Department of Justice
Washington, D.C. 20530

Counsel for State Defendants
Burton Goodpasture, Jr.
Bart C. Durham, III Assistant Attorneys General
Supreme Court Building
Nashville, Tennessee 37219