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Sierra Club v. Secretary of Transp.

ELR Citation: 16 ELR 20487
Nos. No. 85-1280, 779 F.2d 776/23 ERC 1761/(1st Cir., 12/23/1985)

The court affirms a district court ruling that the Coast Guard arbitrarily and capriciously approved a permit for a causeway to Sears Island, Maine, by treating it as a bridge governed by the General Bridge Act rather than subjecting it to the applicable and more stringent conditions of the Rivers and Harbors Act (RHA). The court first holds that the decision in the Sierra Club's challenge to the issuance of a construction permit by the Army Corps of Engineers (Corps) for a bridge and marine terminal, and the authorization to fund the project by the Federal Highway Administration (FHwA), 15 ELR 20911, is not res judicata barring a challenge by the Sierra Club to an entirely different permit issued by the Coast Guard. In the earlier case the court was concerned with the issuance of a permit by the Corps and funding by FHwA and here the court is concerned with the issuance of a permit by the Coast Guard, a separate entity, operating under an entirely different set of regulations. In addition the claims are different.

The court next holds that the Coast Guard's approval of the causeway under the General Bridge Act was arbitrary and capricious. The causeway clearly does not meet the Act's definition of a "bridge," which includes that the structure must have vertical and horizontal clearance beneath it at high tide. The causeway is transected by two 24-inch pipes in the middle, both of which are submerged at high tide. The causeway should have been reviewed under the RHA and would have required special state approval or, if it crossed interstate waters, congressional approval. On this basis, the district court had held the Coast Guard decision arbitrary and capricious. The court rules that the court below was properly enforcing the General Bridge Act. It rejects appellant's argument that the action is under the RHA and should have been dismissed since that Act confers no private right-of-action. Whether or not the causeway qualified for an RHA permit, a question decided by neither the Coast Guard nor the court, the General Bridge Act permit is invalid. Indeed, the court cannot address the RHA application since there is no administrative record on critical issues such as whether the waters are intra- or interstate. Finally, the court limits its holding to whether the General Bridge Act permit was valid, expressing no opinion on the district court's ruling on what the RHA would require.

Counsel for Defendant-Appellant
Cabanne Howard, Ass't Attorney General
State House Station #6, Augusta ME 04333
(207) 289-3661

Counsel for Plaintiffs-Appellees
Edward F. Lawson, Peter L. Koff
Koff & Lawson
33 Mont Vernon St., Boston MA 02108
(617) 742-4646

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.