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Coeur D'Alene Lake v. Kiebert

ELR Citation: 22 ELR 21422
Nos. No. 90-03920-N-HLR, 790 F. Supp. 998/(D. Idaho, 04/23/1992)

The court dismisses the U.S. Army Corps of Engineers (Corps) as a defendant in an action by environmental groups alleging violations of the Federal Water Pollution Control Act (FWPCA) and the National Environmental Policy Act (NEPA) related to the placing of fill material in a lake during a highway construction project, because the groups do not have a private cause of action against the Corps for issuing the FWPCA §404 permit involved. The environmental groups brought their action against the Idaho Transportation Department (ITD), the U.S. Department of Transportation, the Federal Highway Administration (FHwA), and the Corps. The court first grants the groups' motion to amend their complaint and the groups' motion for an extension of time to file a notice in opposition to the ITD's motion to dismiss the groups' pendant state-law claims. The court also holds that the groups' economic, aesthetic, and recreational interests may have been harmed by the actions of the defendants sufficient to establish the groups' standing to bring this action. However, the court dismisses Coeur d'Alene Lake as a plaintiff as inappropriate and contrary to long-established principles of standing and capacity to sue. Also, although the federal defendants' laches defense need not be addressed, since the environmental groups have dropped their NEPA claims, the court holds that the ITD cannot raise the defense of laches to bar claims against itself for failure to meet the FWPCA §404 permit requirements. The environmental groups could not have known beforehand whether the ITD would live up to the terms and conditions of the §404 permit.

Turning to defendants' motions for summary judgment, the court first holds that genuine issues of material fact exist as to whether the ITD and the FHwA violated the terms and conditions of the §404 permit by placing fill beyond areas described in the application precluding summary judgment in favor of the environmental groups. However, whether the FHwA can be held liable for the §404 permit violations allegedly committed by the ITD and its contractor is a question of law that should be resolved on summary judgment, and the court directs the parties to submit additional briefs on that issue. The court also holds that the Corps' amendment of the §404 permit to include as acceptable fill material a bulldozer and scraper, which accidently were dropped into the lake, was not improper. Thus, the court grants summary judgment in favor of both the ITD and the FHwA on that issue.

The court next holds that the environmental groups do not have a private cause of action against the Corps for issuing the §404 permit to ITD, because the FWPCA does not provide for a citizen suit against the Corps for wrongful issuance of a §404 permit. Although the FWPCA does not waive sovereign immunity for suits against the Corps if the Corps engages in the alleged unlawful dumping or fill operations. The Corps was not engaged in the fill operations at the highway construction project, and the Corps followed the FWPCA's procedural requirements in issuing the §404 permit. Moreover, the court holds that a new tort action for wrongful issuance of such a permit should not be recognized based on the record. The court next holds that the groups' claim that issuance of the §404 permit violated the policy of "no net loss" of wetlands contained in the Memorandum of Agreement (MOA) between the U.S. Environmental Protection Agency (EPA) and the Corps must fail. The MOA, which is a policy statement, does not have the force and effect of law, and it was not in effect when the applicable §404 permit was issued.

The court holds that the groups' claim that the Corps, the ITD, and the FHwA violated NEPA by not preparing a supplemental environmental impact statement (EIS) is moot. The time for bringing a cause of action based on NEPA has passed and the remedy for a NEPA violation, typically an injunction preventing the proposed action, is also moot. The court also holds that the groups' NEPA claim fails on its merits, because no new evidence has been presented that arose prior to the time the project was finally approved and work began. Thus, the decision not to supplement the EIS was not arbitrary or capricious. Also, the court holds that no cause of action can be based on the failure of a project to live up to the assessments contained in the final EIS. A final EIS does not set forth binding promises, but only provides federal agencies with the best available information regarding the projected environmental impacts of proposed federal actions.

The court next holds that although EPA is currently developing regulations and procedures for securing a general permit under the FWPCA §402 for highway construction, summary judgment should be granted in favor of the ITD and the FHwA, because at the time the project was planned, authorized, and carried out, the ITD was not required to obtain a §402 discharge permit for the stormwater runoff from the hillside where fill material was obtained. The §404 permit allowed the placement of certain fill in the lake and also provided that noncompliance with the permit regarding the fill was a violation of the permit. The environmental groups cannot now claim that the ITD was required to secure a §402 permit in addition to the §404 permit, merely because the fill did not meet the specifications under the §404 permit. The court also grants summary judgment in favor of the FHwA and the Corps regarding the groups' Administrative Procedure Act claims, since injunctive relief is moot. Finally, the court dismisses a pendant state claim against the FHwA and the ITD alleging violation of Idaho water quality standards, because the state administrative action began before the groups filed this suit in federal court, and it was concluded by consent decree.

Counsel for Plaintiffs
Scott W. Reed
401 Front St., P.O. Box A, Coeur d'Alene ID 83814
(208) 664-2161

Anne S.E. Solomon
Flammia & Solomon
317 Wallace St., Coeur d'Alene ID 83814
(208) 667-3561

Counsel for Defendants
Steven M. Parry, George M. Parham
Legal Section, Idaho Transportation Department
3311 W. State St., P.O. Box 7129, Boise ID 83707
(208) 334-8000