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Mall Properties, Inc. v. Marsh

ELR Citation: 18 ELR 20829
Nos. No. 87-1827, 841 F.2d 440/27 ERC 1429/(1st Cir., 03/11/1988) Appeal dismissed

The court holds that the district court's remand to the Army Corps of Engineers of a challenge to the Corps' denial of a dredge and fill permit is not an appealable order. Plaintiff developer brought suit to challenge the Corps' decision to deny plaintiff a permit under §404 of the Federal Water Pollution Control Act to build a shopping mall in a wetland area in North Haven, Connecticut. The district court held that the Corps had exceeded its authority by denying the permit on socio-economic grounds, and remanded the case to the Corps for further proceedings. The nearby city of New Haven, which had opposed the shopping mall, sought to appeal the remand order. The court holds that the district court's order was not final, since it did not grant plaintiff's ultimate goal—the issuance of a §404 permit. The litigation has not ended, but merely moved to another forum. The court rejects the city of New Haven's argument that removal orders that decide unsettled issues of law are appealable. The court also holds that the remand order is not an appealeable collateral order. The city of New Haven's objections to the issues decided in the order can be raised and reviewed upon appeal of the final order in the case; denial of appeal at this point only postpones, rather than precludes, review. Moreover, allowance of an immediate appeal would violate the efficiency concerns behind the policy against piecemeal appeals.

[The district court's decision is published at 18 ELR 20135.]

Counsel for Plaintiff-Appellee
Alice Richmond
Hemenway & Barnes
60 State St., Boston MA 02109
(617) 227-7940

Daniel Riesel, Mark A. Chertok
Sive, Paget & Riesel
425 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Defendants-Appellees
Kathleen P. Dewey
Appellate Section
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Before COFFIN, BOWNES, and BREYER, Circuit Judges.