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Save Greers Ferry Lake v. Department of Defense

ELR Citation: 31 ELR 20852
Nos. Nos. 00-3320, -3321, 255 F.3d 498/(8th Cir., 07/03/2001)

The court holds that an environmental group's challenge to a U.S. Army Corps of Engineers' shoreline management plan is for the most part moot, but where there is a live controversy concerning the legality of boat docks constructed under the management plan, the Corps acted arbitrarily and capriciously in issuing a "finding of no significant impact" determination for the shoreline management plan. After a district court preliminarily enjoined implementation of the management plan but before the court filed its written order, the Corps withdrew the plan and announced it would prepare an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA). In the meantime, dock owners were granted leave to intervene for the limited purpose of appealing the court's order granting the preliminary injunction. The environmental group also appealed, challenging the court's ruling that boat docks already constructed pursuant to the shoreline management plan could remain on the lake.

The court first holds that the injunction lacks a jurisdictional basis in federal court. To the extent the shoreline management plan is no longer in force, there is no longer a case or controversy for the courts to adjudicate. The court, however, then holds that there is a live controversy regarding the legality of the boat dock construction permits issued under the shoreline management plan prior to its revocation. The court next holds that the boat dock construction permits issued under the management plan may not be recognized or enforced as a matter of law because the Corps violated NEPA by adopting the management plan without a requisite EIS. The docks may be maintained, but they cannot be used for recreational purposes until the Corps implements a new management plan.

Counsel for Appellant
Richard H. Mays
Environmental Legal Services
425 W. Capitol Ave., Ste. 3285, Little Rock AR 72201
(501) 378-5555

Counsel for Appellees
Thomas R. Pence
Law Offices of Thomas R. Pence
417 First Ave. SE, Cedar Rapids IA 52401
(319) 366-8016

McMillian, J. Before Beam and Kyle,1 JJ.