National Wildlife Federation v. Alexander

No. 77-1687 (D.D.C. February 29, 1980)

The court orders the Army Corps of Engineers to revise a regulation concerning construction in navigable waters promulgated under § 10 of the Rivers and Harbors Act. The court also denies the North Dakota State Water commission's motion to dismiss for lack of subject matter jurisdiction ruling that it has retained jurisdiction from a previous decision and that the commission lacks standing to challenge jurisdiction. The court also vacates an injunction, 10 ELR 20060, prohibiting work to continue on the Devils Lake project without Coprs authority under § 10 but requires the Corps to modify its § 10 regulation to indicate that any other activity within the ambit of § 10 but not currently subject to the § 10 permit requirements does require authorization by the Corps. Finally, the court orders the Corps to revise the § 10 regulation to ensure that in the future all activities within the ambit of § 10 shall be pursuant to a permit.

[This decision was reversed on appeal, 11 ELR 21024 — Ed.]

Counsel for Plaintiff National Wildlife Federation
Kenneth S. Kamlet
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Federal Defendants
Maryann Walsh, Dirk D. Snel; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenor-Defendant North Dakota State Water Comm'n
Murray G. Sagsveen, Frederick L. Miller Jr.
State Capitol, Bismarck ND 58505
(704) 224-2221

Counsel for Amicus Curiae North Dakota Chapter of the Wildlife Society
Phillip G. Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

[11 ELR 21024]

Robinson, J.:

Order

Upon consideration of Intervenor-Defendant's Motion to Dismiss the Case for Lack of Subject Matter Jurisdiction, the Opposition thereto, and the entire record herein, the Court notes that (1) this Court still has subject matter jurisdiction, see National Wildlife Federation v. Snow, 561 F.2d 277, 237 [7 ELR 20022] (D.C. Cir. 1976), and (2) assuming arguendo that subject matter jurisdiction might be in issue, Intervenor-Defendant, having been granted all the relief sought, does not suffer from a distinct and palpable injury necessary to provide standing Warth v. Seldin, 422 U.S. 490, 501 (1975). It is therefore by the Court this 29th day of February, 1980,

ORDERED, that Intervenor-Defendant's Motion be and is hereby DENIED; and it is

FURTHER ORDERED, that work on the Channel "A" project may proceed without authorization from the Department of the Army under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 and the injunction previously issued is hereby vacated; and it is

FURTHER ORDERED, that the regulation promulgated pursuant to § 10 of the Rivers and Harbors Act of 1899, 33 C.F.R. § 322.3(a)(1), shall be modified hereafter so as to indicate that the current regulation does not establish a permit program inclusive of all activities within the ambit of § 10, and that any activity within the ambit of § 10 but not within the scope of the permit requirements of 33 C.F.R. § 322.3(a)(1) shall still require the recommendation of the Chief of Engineers and authorization by the Secretary of the Army prior to beginning work on such activity; and it is

FURTHER ORDERED, that the regulation promulgated pursuant to § 10 of the Rivers and Harbors Act of 1899, 33 C.F.R. § 322.5(g)(2), shall be revised hereafter so as to ensure that any activity within the ambit of § 10 shall be pursuant to a permit or otherwise have been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning such activity.