Donahue v. Marsh

No. 86-3205 (11th Cir. May 2, 1986)

In a per curiam opinion, the court affirms the district court's holding that the Army Corps of Engineers did not violate state law or the National Environmental Policy Act in undertaking maintenance dredging of a federally authorized navigation channel and choosing a particular disposal site for spoil material from the project.

[This opinion has not been officially approved for publication by the Eleventh Circuit. The district court decision appears at 17 ELR 20652.]

Counsel are listed at 17 ELR 20652.

[17 ELR 20654]

Per Curiam:

Plaintiffs-Appellants own real property on the Gulf of Mexico. Their property is bounded by Gordon Pass on the south and by Naples public beaches on the north. The pass is a navigational channel running from the Gulf to the inland waterways of Collier County. Defendant-Appellee the Army Corps of Engineers has dredged the Pass for maintenance purposes in 1970 and 1979, and is dredging the Pass once again. During these dredging operations the sand spoil has been deposited on beaches south of the Pass. The Donahues claim that their property has been losing sand into the Pass to the south and that the dredging will accelerate the erosion of their property. They seek by this litigation to require the Corps to deposit the sand on the beaches north of the Pass, rather than on the beaches south of the Pass.

The United States District Judge, after hearing, denied the Donahue's motion for a preliminary injunction finding that they failed to demonstrate a substantial likelihood of prevailing on the merits. As to the violation of the National Environmental Policy Act, 42 U.S.C.A. § 4321, et seq. contention, the district court found that the Donahues failed to demonstrate that the Corps needed to discuss the alternative disposal site in the Environmental Assessment in preparation for the project. See 40 C.F.R. §§ 1501.4, and 1508.9. The district court further found that the appellants failed to demonstrate by a preponderance of the evidence that they would suffer irreparable harm from the Corps' activity.

This Court may not reverse the district court's order denying [17 ELR 20655] a preliminary injunction, unless the denial constituted an abuse of discretion. Callaway v. Block, 763 F.2d 1283 (11th Cir. 1985).

We hold that it is extremely unlikely that appellants will prevail on the merits. Further, that the district court did not abuse its discretion in refusing to grant appellants' application for a preliminary injunction on the basis of the pendency of the state proceeding in which appellants contested the Florida Department of Natural Resources' authorization to the Corps to commence the dredging.

AFFIRMED.