Donahue v. Marsh

No. 86-148-Civ-J-16 (M.D. Fla. March 21, 1986)

The court holds that the Army Corps of Engineers did not violate state law or the National Environmental Policy Act (NEPA) in undertaking maintenance dredging of a federally authorized navigation channel and choosing a particular disposal site for spoil material from the project. Plaintiff landowners had requested that the spoil material be placed on their property and public beaches to the north of the channel, rather than on other private property to the south, to mitigate erosion problems on their property and public beaches allegedly arising from the Corps' periodic dredging of the channel. Although an administrative proceeding was pending before one state agency, plaintiffs filed suit to prevent the Corps from commencing the dredging operation based on a permit issued by another state agency. The court first holds that plaintiffs have not demonstrated that they will suffer irreparable injury if the Corps' preferred alternative is followed prior to the conclusion of the administrative proceeding. The Corps has authority superior to the state under the Commerce Clause of the United States Constitution to maintain navigation that is not impaired by its compliance with state requirements. The court holds that the Corps complied with Federal Water Pollution Control Act § 404(t) by applying to and receiving from the state the permit for the dredging project. Plaintiffs also had opportunity to object to the permit, since public notice was given of the intent to issue a dredging permit to the Corps. The court holds that the Corps' environmental assessment prepared pursuant to NEPA adequately discussed the environmental impacts of the proposal and the alternatives. Plaintiffs have not shown that the proposed disposal site is an environmental hazard or that their proposed alternative is a reasonable one.

[The Eleventh Circuit's opinion affirming the district court opinion is published at 17 ELR 20654.]

Counsel for Plaintiffs
Donald E. Hemke
Carlton, Fields, Word, Emmanuel, Smith & Cutler
One Harbour Pl., Tampa FL 33602
(813) 223-7000

Counsel for Defendants
John E. Lawler III, Ass't U.S. Attorney
P.O. Box 600, Jacksonville FL 32201
(904) 791-2682

Edward Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4010

[17 ELR 20653]

Moore, J.:

Order

This cause came before the Court at the hearing on Plaintiffs' Motion for Preliminary Injunction held on Thursday, March 20, 1986 at 10:00 a.m. By their motion, Plaintiffs seek to temporarily enjoin Defendants, U.S. Army Corps of Engineers (hereinafter the "Corps") and Harbor Marine, Ltd. (hereinafter "Harbor Marine") from conducting maintenance dredgingof Gordon Pass, a federally authorized navigational channel, located near Naples in Collier County, Florida. After due consideration of the evidence presented, the law applicable, and the arguments of counsel for both parties, the Court concludes that the motion for preliminary injunction should be denied.

I. Parties

Plaintiffs own real property immediately adjacent to Gordon Pass. This parcel of land, known to Plaintiffs as "the Point," is bordered by Gordon Pass to the south and the Gulf of Mexico to the west. Plaintiffs also own a beach-front private residence further to the north along the same beach.

Defendant Corps is the division of the United States Army charged with the maintenance and improvement of navigation through all federally authorized navigational channels, including Gordon Pass.

Defendant Harbor Marine is the private corporation awarded the contract to engage in the maintenance dredging by the Corps.

II. Findings of Fact

Over the years, the Corps has maintained Gordon Pass as a federally authorized navigational channel running from the Gulf of Mexico to the inland waterways of Collier County. To maintain the navigability of the Pass, the Corps has periodically dredged it, most recently in 1970 and 1979. The Corps now desires to undertake maintenance dredging of the Pass again in 1986.

Because of the current need to conduct additional dredging activities, the Corps applied to the State of Florida Department of Environmental Regulation (hereinafter "DER") for the appropriate permits and authorization, pursuant to a 1979 Memorandum of Understanding between the Corps and DER. On June 5, 1985, DER, after having reviewed the Corps' application, caused an "intent to issue" notice to be published in a Collier County newspaper so that interested persons could object to the issuance of the requested permit and authorization for the Corps' proposed maintenance dredging of Gordon Pass. No petitions for an administrative hearing pursuant to Fla. Stat. § 120.57 or other objections were timely received so DER issued a permit to the Corps on June 21, 1985.

Once the DER permit was received, the Corps advertised for bids on the project. Bids were received in July and processed through September.

By virtue of Fla. Stat. § 253.77, the State of Florida Department of Natural Resources (hereinafter "DNR") was also required to transmit the authorization of the Board of Trustees of the Internal Improvement Trust Fund (hereinafter "Trustees") to proceed with the dredging project since Gordon Pass constituted submerged state sovereignty lands according to Fla. Stat. § 253.03(1). DNR issued this authorization by a letter to the Corps dated September 11, 1985.

Plaintiffs received actual notice of DNR's action authorizing the Corps' project on September 26, 1985. Soon thereafter, Plaintiffs, as "substantially affected parties," filed a petition for a formal administative hearing, Fla. Stat. § 120.57, on the DNR's authorization of the Corps' project on October 2, 1985. This petition named only DNR and the Trustees as respondents. In January 1986, the Corps sought and was granted leave to intervene in the administrative hearing proceeding. Subsequently, the Corps filed a motion to dismiss the petition for hearing on the grounds that Plaintiffs lacked standing to bring it. This motion to dismiss was denied by the hearing officer and the Corps moved for reconsideration. The hearing officer has not yet ruled on the Corps' motion for reconsideration. In any event, the final hearing in the administrative proceeding is presently scheduled to commence March 31, 1986.

By their administrative hearing petition, Plaintiffs seek to have DNR and the Trustees more carefully consider the alternative, proposed by Plaintiffs, of depositing the sand spoil material from the dredging activity on plaintiffs' property and the public beaches to the north of Gordon Pass, rather than on the privately-used and privately-patrolled beaches on Keewaydin Island to the south of Gordon Pass, which is where the Corps' project plan presently dictates that the sand spoil material be deposited. Although Plaintiffs also contest the need for the dredging and the alleged failure to comply with appropriate regulations, the main thrust of their argument is that the sand should be deposited to the north, rather than the south, of the Pass.

Plaintiffs complain that the sand in the channel that needs to be dredged comes from their property and points north of Gordon Pass because of the southerly littoral flow of the Gulf of Mexico in that area. Moreover, Plaintiffs allege that the periodic dredging of Gordon Pass has exacerbated the erosion problem on their property and the erosion problem allegedly being suffered by the public beaches north of Gordon Pass. Plaintiffs argue that the sand in Gordon Pass should be returned to points north of the Pass to replenish their beach and the public beaches to the north, thus benefitting the public, who has access to those beaches. Plaintiffs essentially are arguing that it is unfair to deposit the sand from the Pass at the present disposal site on Keewaydin Island, because the island's beaches are privately-used and privately-patrolled. The public has very limited access to Keewaydin Island since the island can only be reached by boat.

Over the years during the course of the Corps' maintenance of Gordon Pass, the sand spoil material from the periodic maintenance dredging activity consistently has been placed on the beaches south of the Pass. The reason beaches to the south have been chosen as the disposal site time and again is because of the southerly littoral flow. According to the Corps, placing the sand to the north would render the maintenance dredging activity futile, or at least much more difficult. The southerly flow of the wind and tide would quickly carry the sand deposited to the north back into the channel. Moreover, the groins and jetties in place to the north of the Pass presently are inadequate to hold any sand deposited there and prevent that sand from immediately drifting back into the channel. Although overtures to improve the capacity of the groins and jetties have been made by Plaintiffs and the City of Naples, which has authority over the jetties and groins, there is still no change.

After intervening in the administrative hearing proceeding and after the hearing officer denied its motion to dismiss, the Corps informed Plaintiffs that it intended to proceed with the maintenance dredging of Gordon Pass irrespective of the pendency of the administrative hearing. The Corps and Harbor Marine have since moved their dredging equipment into Gordon Pass and are in the process of commencing the dredging operation.

Upon being so informed of the Corps' intention, Plaintiffs filed the Complaint in this cause and a motion for preliminary injunction with this Court. Plaintiffs seek declaratory and temporary and permanent injunctive relief against the Corps and Harbor Marine to prevent them from conducting the maintenance dredging of Gordon Pass until such time as the Corps complies with both federal and state law.

Plaintiffs' Complaint is predicated on two grounds. First, Plaintiffs allege that the Corps is proceeding without the necessary state authorization. Plaintiffs contend that DNR authorization for the project pursuant to Fla. Stat. § 253.77 is necessary before the Corps should be allowed to undertake the dredging project. Although the September 11, 1985 letter from DNR to the Corps purportedly contained the necessary authorization, Plaintiffs argue that filing and pendency of the § 120.57 formal administrative hearing, to which Plaintiffs and the Corps both are parties, suspends the effectiveness [17 ELR 20654] of that authorization. Therefore, for the Corps to proceed with the dredging would be unlawful, according to Plaintiffs.

Second, Plaintiffs allege that the Corps is in violation of the National Environmental Policy Act (hereinafter "NEPA"), 42 U.S.C. §§ 4321 et seq., in failing to expressly address the alternative of depositing the sand spoil material on Plaintiffs' property and the north public beaches in the Environmental Assessment issued by the Corps in preparation for this project. See 40 C.F.R. §§ 1501.4, 1508.9.

Presently before the Court is Plaintiffs' Motion for Preliminary Injunction, filed February 27, 1986, and Defendants' response in opposition thereto. Plaintiffs pray that this Court temporarily enjoin the Corps and Harbor Marine from proceeding with the Gordon Pass maintenance dredging project until such time as the Corps obtains the necessary state authorization from DNR and complies with the applicable federal environmental laws and regulations.

III. Conclusions of Law

The purpose of the preliminary injunction is to preserve the status quo until a trial on the merits can be held. Yet, a preliminary injunction is an extraordinary and drastic remedy, and its grant is the exception rather than the rule. United States v. Lambert, 695 F.2d 536, 539 [13 ELR 20436] (11th Cir. 1983). The plaintiff must clearly carry the burden of persuasion as to each of the four prerequisites to a preliminary injunction before the Court will issue a preliminary injunction. Id. The four prerequisites are: (1) a substantial likelihood that the plaintiff will prevail on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendant; and (4) that granting the preliminary injunction will not disserve the public interest. Canal Authority v. Callaway, 489 F.2d 567, 572 [4 ELR 20164] (5th Cir. 1974). Based on these principles as applied to the facts of this case, the Court concludes that Plaintiffs have not clearly met their burden of persuasion as to each of the four prerequisites listed above, and therefore, that a preliminary injunction should not issue.

Plaintiffs' first basis for seeking a preliminary injunction is that they will suffer irreparable harm if the Corps is allowed to proceed and complete the dredging project without proper state authorization; i.e., during the pendency of the administrative hearing involving Plaintiffs, DNR, the Trustees, and the Corps. The Court is not convinced by a preponderance of the evidence that Plaintiffs will indeed suffer irreparable injury if the Corps' activities effectively moot the administrative hearing or that Plaintiffs will suffer irreparable injury if the sand is dredged from the channel and placed on the beaches of Keewaydin Island. Nevertheless, the Court finds that Plaintiffs have waived their clear point of entry into the administrative hearing process when they failed to timely respond to the DER's public notice of intent to issue a permit, published in a Collier County newspaper on June 5, 1985.

Pursuant to the Clean Water Act of 1977, particularly 33 U.S.C. § 1344(t), the Corps, as a federal agency, should comply with State requirements, both substantive and procedural, to control the discharge of dredged or fill material to the same extent that any person is subject to such requirements. However, by virtue of such compliance with State requirements the Corps does not in any way impair or waive its paramount authority, conferred by the Commerce Clause of the United States Constitution, to maintain navigation. 33 U.S.C. § 1344(t).

In Florida, DER is the state agency directly responsible for ensuring that all parties conducting dredging activities within the state comply with state environmental and pollution laws and guidelines. In this case, the Corps fully complied with any requirements imposed by the Clean Water Act amendments when it applied to and received from DER the necessary permits for the Gordon Pass maintenance dredging project. Substantially affected parties, including Plaintiffs, were given the proper notice of the proposed DER action and the proper opportunity to timely respond or object to that proposed action back in June 1985. See Fla. Stat. §§ 403.814, 403.815. The proposed agency action to which Plaintiffs were entitled to object was the action of the permitting agency, DER. That agency action became final on June 21, 1985 when no timely petition for hearing or other response was filed. Plaintiffs should not now be entitled to disrupt this authorized project at this late date by seeking to attack a collateral act by DNR, another state agency not directly involved in the state water pollution permitting scheme.

Plaintiffs' second basis for seeking a preliminary injunction is that the Corps has failed to fully comply with NEPA, 42 U.S.C. § 4321 et seq., by failing to expressly address the alternative disposal site suggestion raised by Plaintiffs in the Environmental Assessment prepared by the Corps during the planning of this project. As to this contention, the Court finds that Plaintiffs have not clearly shown that there is a substantial likelihood that they will prevail on the merits.

An "environmental assessment" is a concise public document that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. 40 C.F.R. § 1508.9(a). It shall include brief discussions of the need for and environmental impact of the proposal and alternatives. 40 C.F.R. § 1508.9(b). The environmental assessment was never intended to be the same sort of detailed, analytical document that an environmental impact statement is. Cf. State of California v. Bergland, 483 F. Supp. 465 [10 ELR 20098] (E.D. Cal. 1980). Moreover, Plaintiffs have simply failed to clearly show that the present disposal site is potentially an environmental hazard and that an alternative disposal site to the north is a "reasonable" alternative. Alternatives which would result in similar harm need not be discussed. Sierra Club v. Morton, 510 F.2d 813, 825-26 [5 ELR 20249] (5th Cir. 1975). A failure to raise an alternative may reflect on its significance. Id.

In summary, Plaintiffs have failed to show that they are entitled to the relief they seek. As to the first contention raised, the Court finds that Plaintiffs waived a clear point of entry into the administrative process and cannot now be heard to complain. As to the second contention raised, the Court finds that Plaintiffs have failed to meet their burden of showing irreparable damage or a substantial likelihood that they will prevail on the merits of their claim that the Corps violated NEPA. Accordingly, it is now

ORDERED and ADJUDGED:

That Plaintiffs' Motion for Preliminary Injunction be DENIED.