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Deltona Corp. v. Alexander

ELR Citation: 11 ELR 20235
Nos. No. 76-473, 504 F. Supp. 1280/15 ERC 1508/(M.D. Fla., 01/14/1981) Final judgment issued

The court rules that the Army Corps of Engineers' denial of permits to dredge and fill wetlands on Marco Island, Florida, was neither arbitrary nor capricious. Based on Corps and Environmental Protection Agency (EPA) guidelines, the Chief of Engineers granted one permit but denied two others, concluding that the basic purpose of the project, housing, did not outweigh the damage to the mangrove wetlands. The court first denies plaintiff's motions to transfer or alternatively to stay the proceedings. Second, after examining the administrative record and finding it complete, the court finds that there is no genuine issue of any material fact and grants defendants' motion for summary judgment. The plaintiff was not denied procedural due process because the Corps properly complied with its regulations concerning applicant's opportunity to comment. Nor was the plaintiff prejudiced by retroactive application of the EPA wetlands guidelines because they were the same as the already existing Corps guidelines. In addition, the Corps' knowledge of the long-standing "master plan" for Marco Island combined with its previous issuance of permits for initial phases of the project does not constitute "affirmative misconduct" that would estop the Corps from denying subsequent permits because of their environmental effects. Moreover, the Corps properly exercises jurisdiction over the land, pursuant to the Rivers and Harbors Act and the Federal Water Pollution Control Act. Finally, the court rules that the issue of whether the Corps' denial of the permits constitutes a taking is not properly before it in light of plaintiff's pending Tucker Act action in the Court of Claims.

Counsel for Plaintiff
L. Grant Peeples
Peeples, Earl, Smith, Moore & Blank
Suite 3636, One Biscayne Tower, Two S. Biscayne Blvd., Miami FL 33131
(305) 358-3000

Counsel for Defendant
John Brigg, U.S. Attorney
409 P.O. Bldg., 311 W. Monroe St., Jacksonville FL 32201
(904) 791-2682

Counsel for Defendant-Intervenors Environmental Defense Fund, Inc. et al.
James T.B. Tripp
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10016
(212) 686-4191