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Bayou Liberty Ass'n v. Corps of Eng'rs

ELR Citation: 30 ELR 20757
Nos. No. 98-31260, 217 F.3d 393/(5th Cir., 07/19/2000) dismissed as moot

The court holds moot a neighborhood association's claim that the U.S. Army Corps of Engineers violated the National Environmental Policy Act when it issued a permit for the construction of a retail development. The court first holds that the association's original requests for relief in this action are moot. The association requested injunctive relief staying or suspending the permit and requiring the Corps to consider the direct, indirect, and cumulative impacts of flooding in the area, and sought declaratory relief stating that the Corps was required to consider these impacts before granting the permit. However, even if the court stayed the permit and granted the declaratory relief, the action would have no effect because the construction authorized by the permit has been substantially completed. Further, any general declaratory judgment regarding the Corps' procedures in issuing other permits for construction on wetlands would be an advisory opinion. Moreover, the association's request that the court remand the case to the Corps for further consideration of flooding from the retail complex was not requested below, and issues raised for the first time on appeal are not considered except in extraordinary instances, and this is not such a situation. The court next holds that the association's suit does not fall under the exception to the mootness doctrine for issues capable of repetition yet evading review. The association has demonstrated that the same action currently challenged will take place again because there is an expectation of future development that may cause flooding problems. However, the period of time between issuance of a Corps permit and substantial completion of construction will not be too short to allow a challenge to any future permit to be fully litigated.

[A prior decision in this litigation is published at 29 ELR 20258.]

Counsel for Plaintiff
Anne Sobol
Law Offices of Anne Sobol
235 Robert St., Slidell LA 70458
(504) 645-0605

Counsel for Defendant
Steve C. Gold
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wiener, J.