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Potomac River Ass'n v. Lundeberg Md. Seamanship Sch., Inc.

Citation: 5 ELR 20388
No. No. 73-789-Y, 402 F. Supp. 344/7 ERC 1945/(D. Md., 04/11/1975)

The court denies a private landowner's motion to dismiss a suit under the Rivers and Harbors Act seeking damages for harm to oyster beds and aesthetic enjoyment of a creek caused by allegedly illegal dredge, fill, and bulkheading activities. Plaintiffs may, insofar as they have alleged obstructions to the navigational capacity of the creek, maintain a cause of action under the Act for damages which have occurred as the result of defendants' activities conducted outside the scope of dredge and fill permits issued to them by the Corps of Engineers. Once activity occurs outside the scope of a Corps permit, it may also be considered a nuisance and give rise to a cause of action for damages in maritime tort which may be pursued by specially injured private parties. The court grants the Corps' motion to dismiss claims seeking to suspend all permits previously issued to the private defendants, require preparation of an EIS for two of these permits, and enjoin the Corps from issuing any further permits to the private defendants. All previously issued permits have now expired, rendering plaintiffs' first claim against the federal defendants moot, and the doctrines of primary jurisdiction and ripeness prevent the court from considering the second and third claims since these questions are still pending before the Corps. The court notes, however, that the Corps, in considering any application for a new or extended permit, must take into account whether the applicant has in the past engaged in dredging and filing beyond the scope of a permit, and that such a finding would weigh heavily against issuance of a permit or extension.

Counsel for Plaintiffs
Bernard S. Cohen
Cohen & Vitt
P.O. Box 117
320 King Street
Alexandria, Va. 22313

John J. O'Connor
O'Connor & Preston
The Law Building
St. Paul Place at Franklin
Baltimore, Md. 21202

Counsel for Defendants
Aubrey M. Daniel, III
Terry M. Rose
Solomon Kaplan
Kaplan, Heyman, Engelman & Belgrad
10th Floor, Sun Life Building
Baltimore, Md. 21201

William L. Want
Department of Justice
Washington, D.C. 20530

James M. Kramon Asst. U.S. Attorney
U.S. Courthouse
111 N. Calvert Street
Baltimore, Md. 21202