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People ex rel. Scott v. Hoffmann

ELR Citation: 7 ELR 20287
Nos. No. P-CIV-76-45, 425 F. Supp. 71/11 ERC 1049/(S.D. Ill., 01/06/1977)

In an action to compel restoration of a river to its natural course, the court denies defendants' motion for summary judgment for reason that substantial fact questions remain regarding the river's navigability and federal participation in a rechanneling project. The Army Corps of Engineers, acting upon a private proposal to repair two levees on the Mackinaw River, arranged for construction of an artificial bypass channel that destroyed substantial wildlife habitat. Plaintiffs brought suit, claiming violations of various water pollution and navigable waters statutes. Since fact issues remain concerning federal participation in the project, summary judgment is inappropriate. Also, the defense of sovereign immunity is inapplicable in light of the recent amendment to the Administrative Procedure Act (APA) waiving that defense. Further, the APA provides review for persons aggrieved by agency action unless specifically precluded. Under the Rivers and Harbors Act, a person, including a private party, aggrieved by federal action may sue to redress a violation of the Act. Under the Federal Water Pollution Control Act, summary judgment cannot be granted where the Environmental Protection Agency has received notice of violations and has allegedly failed to institute an enforcement action. Private defendants' objections to this suit for reason of pendency of state litigation and failure to join indispensable parties are frivolous. Motions for summary judgment and to dismiss denied.

Counsel for Plaintiff
Joseph V. Karaganis
Karaganis & Gail
180 N. LaSalle St., Suite 3115, Chicago IL 60601
(312) 282-1905

Counsel for Defendants
James D. Reynolds
1st National Bank Bldg., Peoria IL 61602
(309) 674-5551

Lyle W. Allen
Heyl, Ryster, Voelker & Allen
Suite 300, Central Bldg., Peoria IL 61602
(309) 676-6184

Donald B. Mackay, U.S. Attorney
P.O. Box 375, Springfield IL 62705
(217) 525-4340

Fred R. Disheroon
Department of Justice, Washington DC 20530
(202) 739-2716