City of Angoon v. Marsh

No. J83-001 CIV (D. Alaska July 14, 1983)

The court preliminarily enjoins defendants' log transfer operation for failure to obtain a national pollutant discharge elimination system permit pursuant to the Federal Water Pollution Control Act. The court holds that the balance of hardships decidedly favors plaintiffs. The court finds that the logging activities will result in the discharge of pollutants into navigable waters of the United States. Therefore, plaintiffs have shown that success on the merits is probable. Furthermore, the injunction is in the public interest because it will prevent pollution.

Counsel for Plaintiffs
Frederick P. Furth, Daniel S. Mason, Deborah Webster Trotter
Furth, Fahrner, Bluemle & Mason
Suite 1000, Furth Bldg., 201 Hansome St., San Francisco CA 94104
(415) 433-2070

Counsel for Plaintiffs-Intervenors
Durwood J. Zaelke Jr.
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants
Cynthia Pickering, U.S. Attorney
Fed. Bldg., Rm. C 252, Mail Box 9, 701 C St., Anchorage AK 99513
(907) 271-5071

Richard A. Baenen, Jacquelyn R. Luke
Baenen, Timme, De Reitzes & Middleton
601 W. 5th St., Suite 420, Anchorage AK 99501
(907) 276-3390

[13 ELR 20849]

VON DER HEYDT, J.:

Memorandum and Order

THIS CAUSE comes before the court on intervenor-plaintiffs' motion for a preliminary injunction. The injunction is sought on the basis that a log transfer operation which Shee Atica, Inc. proposes to conduct in Chatham Strait violates the Federal Water Pollution Control Act. See 33 U.S.C. §§ 1251-1376 (1976). The court concludes that movants have met the Ninth Circuit's test for injunctive relief. See Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 502 (9th Cir. 1980).

I. Balance of Hardships

Injunctive relief may be granted upon a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (6th Cir. 1975). The court holds that the threatened pollution and harm to subsistence uses in the area allow the balance of hardships to tip decidedly in movants' favor.

II. Merits

The Federal Water Pollution Control Act forbids the discharge of any pollutant by any person without a National Pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311(a), 1342 (1976). Defendants do not have an NPDES permit at this time. The court finds that the logging activities at issue, unless enjoined, will result in pollutants being discharged into navigable waters of the United States. See id. §§ 1362(5), (6), (7), (12) and (16). Accordingly, movants not only have shown serious questions going to the merits to make them a fair ground for litigation, but also have made a strong showing of probable success on the merits.

III. Public Interest

The public interest favors granting this injunction. Defendants have made so showing that the public interest will be prejudiced by granting the injunction. In contrast, the public interest in preventing the pollution of navigable waters is great.

Accordingly, IT IS ORDERED:

1) THAT the motion for preliminary injunction is granted.

2) THAT Shee Atica, Inc., and its agents are prohibited from conducting a log transfer operation on the waters of Chatham Strait until further order of this court.