Monroe County Conservation Association, Inc. v. Hansen

Civil 1971-213 (W.D.N.Y. June 1, 1971)

Plaintiff cannot prevail in suit to enjoin Corps of Engineers from dumping dredgings from the Genesee River into Lake Ontario, because there is no showing of likelihood of irrevocable injury to Lake Ontario — already polluted — if injunction is not granted. Corps is obligated by statute to maintain rivers and harbors in navigable condition and in fact, if injunction is issued, Port of Rochester will be unable to accommodate deep draft ships. Court also gives some weight (1) to Corps assertion that dumping in Lake Ontario will cease as of 1972 with material in subsequent years to be dumped in designated landfill areas, and (2) to passage by Congress of Rivers and Harbors Act of 1970 and NEPA of 1969, neither of which flatly outlawed dumping operations such as are at issue here.

Counsel for Plaintiff:
Wayne M. Harris
226 Powers Bldg.
Rochester, N.Y. 14614
(716) 454-6950

Counsel for Defendants:
H. Kenneth Schroeder, Jr. United States Attorney
308 Federal Bldg.
Rochester, N.Y.
(716) 546-4900

Counsel for Intervening Defendant Rochester Portland Cement Corp:
Harris, Beach & Wilcox
2 State St.
Rochester, N.Y. 14614
(716) 232-4440

Counsel for Intervening Defendant Rochester-Monroe County Port Authority:
Joseph A. Fischette
155 West Main St.
Rochester, N.Y. 14614
(716) 454-2096

[1 ELR 20363]

Burke, J.:

Hearing at Rochester, New York, on May 27, 1971, on plaintiff's motion for a preliminary injunction.

FINDINGS OF FACT

1. The complaint herein was filed May 10, 1971. This is an action for an injunction restraining the defendants from dumping dredgings from the Genesee River into Lake Ontario. The plaintiff seeks a declaratory judgment, (a) declaring the rights and legal relations of the parties, (b) declaring that the dumping by defendants of Rochester Harbor dredgings into Lake Ontario is in violation of law, (c) preliminarily and permanently enjoining defendants from dumping any Rochester Harbor dredged materials into any portion of Lake Ontario. By supporting papers filed May 10, 1971, the plaintiff secured a show cause order through which it brought on for argument before this court plaintiff's motion for a preliminary injunction.

2. I have grave doubt as to whether the plaintiff may maintain this suit, because of the doctrine of sovereign immunity from suit. My doubt extends to whether the plaintiff by its complaint has brought itself within one of the exceptions to the doctrine noted by the Supreme Court of the United States, viz, "actions by officials beyond their statutory powers", in Dugan vs. Rank, 372 U.S. 609, 621. I prefer, however, not to base my decision on this motion on the defendants' sovereign immunity from suit.

3. The operations which the plaintiff seeks to enjoin are to be performed pursuant to the authority delegated by Congress by the Rivers and Harbors Act of 1960. Public Law 86-645, 74 Stat. 480. For many years the Corps of Engineers has dredged the Genesee River to make it navigable to accommodate deep draft ships. The dredgings have been deposited in a dumping ground selected by the Corps of Engineers in Lake Ontario. The Corps of Engineers has indicated that 1971 will be the final year that it will use Lake Ontario as a dumping ground for the dredgings, and that commencing in 1972 it will dump the dredgings into a land fill site to be selected by appropriate officials of Monroe County.Affidavits attached to plaintiff's moving papers speak of "certain information" but do not set forth any basic facts showing that Lake Ontario will be irreparably damaged or thatthis proposed dumping of dredgings in the year 1971 will irreparably damage the lake. The plaintiff does not allege that Lake Ontario is now unpolluted. In fact the plaintiff candidly admits that the lake is now polluted. The best that plaintiff can expect to prove is that the proposed dumping of dredgings in 1971 will further pollute Lake Ontario. There can be no doubt about the fact that if this court enjoins the defendants from dumping into Lake Ontario the proposed dredgings of 1971, it will effectively result in closing the Port of Rochester to deep draft commercial ships.

4. The actions of the defendants challenged by this suit are the maintenance of the Rochester Harbor and the Genesee River as a navigable water way. This operation is expressly authorized by Congress. The defendant officials are commanded by Congress to so maintain the river and harbor; 21 Stat. 468 (1881), 40 Stat. 250 (1917), 49 Stat. 1028 (1935), 59 Stat. 10 (1945).

5. Congress was recently afforded the opportunity to consider the question of dumping dredgings in conjunction with the passage of the Rivers and Harbors Act of 1970, Public Law 91-611. That Act passed with the urging of Ray S. Hansen, Colonel, Corps of Engineers; F. J. Clarke, Lt. General, United States Army, Chief of Engineers; and Stanley R. Resor, Secretary of the Army. They recognized the problems presented by continued open-lake dumping of dredged materials.The act directed the Secretary of the Army through the Corps of Engineers to establish contained spoil disposal facilities in the Great Lakes:

"at the earliest practicable date, taking into consideration the views and recommendations of the Administrator of the Environmental Protection Agency as to those areas which, in the Administrator's judgment, are most urgently in need of such facilities."

6. The Act further grants the Secretary of the Army, acting through the Chief of Engineers, until July 1, 1972 to submit guidelines to Congress assuring that:

"possible adverse economic, social and environmental effects relating to any proposed project have been fully considered . . ."

7. That Act also grants authority to the Corps of Engineers to engage in:

"a comprehensive program of research, study, and experimentation relating to dredged spoil. This program . . . shall include, but not be limited to, investigations on the characteristics of dredged spoil, and alternative methods of its disposal."

8. It seems clear that Congress did not contemplate an immediate or abrupt end of dumping operations in the Great Lakes until the studies could be completed and until contained spoil disposal facilities could be built. The provisions regarding research and experimentation in the 1970 Act concerning disposal and characteristics of dredged spoil is a recognition by Congress that scientific information in this area is now less than comprehensive and that more information is needed before drastic measures are taken. By the Rivers and Harbors Act of 1970, Congress has assumed the guiding role in solving the problems presented by disposal of dredging spoil in the Great Lakes. This court is unwilling to substitute its judgment for that of Congress.

9. In addition to the Rivers and Harbors Act of 1970, Congress has assumed the role of protector of the environment, including the waters of the Great Lakes, in the National Environmental Policy Act of 1969, 42 U.S.C. Section 4321 et. seq. By the terms of that Act, agencies of the federal government are given until July 1, 1971, to review their administrative procedures and propose changes to such procedures in order that they be made to conform to the intent and purposes of the Act. This court is unwilling, by granting the injunctive relief herein sought, to superimpose this court's timetable upon an Act of Congress which already contains one.

10. The President of the United States has also acted in this area. In Executive Orders promulgated in furtherance of the purposes of the Federal Water Pollution Control Act, 33 U.S.C. Section 1151 et. seq. and the National Environmental Policy Act of 1969, the President has instructed federal agencies with regard to their actions which might be adverse to the purposes of those acts. See notes to 42 U.S.C. Section 4331. Executive Order Number 11507, February 4, 1970, 35 Fed. Reg. 2573, provides for procedures for abatement of air and water pollution at existing federal facilities to be completed or under way no later than December 31, 1972. This court is unwilling, by granting the injunctive relief herein sought, to substitute its timetable with that provided in Executive Order Number 11507.

11. The Plaintiff by this motion for a preliminary injunction does not seek to maintain the status quo pending this suit. It is the plaintiff who seeks to change the status quo by this application for a preliminary injunction. For many years the Army Corps of Engineers has dredged the Rochester Harbor and Genesee River to allow deep draft ships to use the harbor. For many years dredged materials have been dumped into Lake Ontario. The proposed 1971 dredging of the harbor and river is imminent. The Corps of Engineers is now ready to move its equipment to Rochester to commence its operation. For many years the [1 ELR 20364] Rochester Harbor and Genesee River has been maintained as a facility to accommodate deep draft ships which would be stopped if this court granted a preliminary injunction.

12. The plaintiff has not shown that irreparable injury will follow if the Corps of Engineers is allowed to engage in open-lake dumping in the year 1971. As pointed out above, the best it can hope to show is additional pollution to an already polluted lake. If there is any showing of irreparable injury in this case, it is the irreparable injury that has already occurred by the pollution of Lake Ontario, not the injury that could be caused by 1971 dumping of dredged materials from the Genesee River.

13. The plaintiff has not shown that there is a reasonable likelihood that it will ultimately succeed in this action.

14. The plaintiff has not shown irreparable injury to outweigh the certain hardships that will ensue to the City of Rochester, the general public, and the intervening defendants, if this court should grant a preliminary injunction.

CONCLUSION OF LAW

1. The plaintiff is not entitled to a preliminary injunction. Plaintiff's motion for a preliminary injunction is denied.

IT IS HEREBY SO ORDERED.