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Shoreline Assocs. v. Marsh

ELR Citation: 13 ELR 20421
Nos. No. M-81-3097, 555 F. Supp. 169/19 ERC 1128/(D. Md., 01/06/1983)

The court rules that the Army Corps of Engineers' denial of plaintiff's application for a dredge and fill permit without an evidentiary hearing and opportunity for cross-examination of expert witnesses did not deny due process. Initially, the court notes that it must review the Corps' decision based upon the administrative record and under the arbitrary and capricious standard. Next, the court rules that plaintiff was provided due process because the written communications between plaintiff and the Corps, coupled with informal meeting of the parties, constituted an adequate alternative to an adjudicatory hearing. In addition, cross-examination of scientific witnesses in the instant action would be of questionable value. The court rejects plaintiff's attempt to distinguish Buttrey v. United States, 13 ELR 20124, on the groundthat the property at issue in Buttrey was below the mean high watermark, while plaintiff's property was above the high watermark and therefore subject to a stronger private interest. Relying on Buttrey, the court concludes that plaintiff was not entitled to an adjudicatory hearing. Turning to the merits, the court upholds the Corps' denial of plaintiff's permit application. It finds that the agency considered all relevant factors, including site-specific information, in its public interest review and reasonably concluded that the subject wetlands were of value to the environment and that plaintiff had alternative upland property available for development.

Counsel for Plaintiff
Warren K. Rich, Stephen P. Kling
Niles, Barton & Wilmer
P.O. Box 509, Annapolis MD 21401
(301) 269-1610

Counsel for Defendants
Michael W. Neville
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3607