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Dardar v. Lafourche Realty Co.

ELR Citation: 17 ELR 20083
Nos. No. 85-1015, 639 F. Supp. 1525/(E.D. La., 07/29/1986)

The court holds that the Corps of Engineers arbitrarily and capriciously failed to determine whether a privately owned canal system obstructed navigable waterways when it issued the owner a permit under §10 of the Rivers and Harbors Act (RHA), but that two other permits issued under both RHA §10 and §404 of the Federal Water Pollution Control Act (FWPCA) as part of a marsh management program are supported by the administrative record. The court initially rules that the reasonableness standard applies when an agency has decided not to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court rules, however, that for this standard to apply, a plaintiff must initially allege facts which, if true, show that the challenged project would materially degrade the environment. The court then holds that neither the fishermen plaintiffs, alleging obstruction of long-established navigable waterways, nor the state intervenor, asserting ownership of navigable waterways and fish and wildlife within the program area, has demonstrated such facts. Economic impacts such as the obstruction of commercial fishing routes do not require preparation of an EIS without other effects on the physical environment, and the state's allegation that issuance of the permits will have a significant adverse impact on the environment does not allege facts in support of this argument. The court holds that since plaintiffs have not made an initial showing of a NEPA violation, the arbitrary and capricious standard established by §706(2) of the Administrative Procedure Act applies. Applying this standard to the issuance of the RHA §10 permit for installation of access control gates and barrier fences, the court holds that the Corps unlawfully failed to investigate whether the control system would obstruct or divert natural navigable waterways. The court holds, however, that the administrative record supports the issuance of two other permits under RHA §10 and §404 of the FWPCA for dredging and maintenance of existing canals and construction of new levees as part of a marsh stabilization and management program.

Counsel for Plaintiffs
Michael Osborne
Osborne, McComiskey & Richardson-Harp
3420 Prytania St., New Orleans LA 70115
(504) 891-4418

Counsel for Defendants
William R. Pitts
Liskow & Lewis
50th Fl., One Shell Square, New Orleans LA 70139
(504) 581-7979

Kai David Midboe, William J. Guste Jr., David C. Kimmel
Office of the Attorney General
Department of Justice, P.O. Box 94005, Baton Rouge LA 70804-9005
(504) 342-7013

Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2682