Save the Dunes Council, Inc. v. Froehlke

Civ. No. 72 S 12 (N.D. Ind. May 23, 1972)

The Corps of Engineers does not have the authority under the Rivers and Harbors Act of 1899 and the National Environmental Policy Act to prohibit the construction of a power plant on land filled with its permission in 1952. However, a Corps discharge permit and NEPA review will be necessary before the plant may commence operation. Under the Submerged Lands Act the Corps retains jurisdiction over filled lands, but the Rivers and Harbors Act of 1899 does not contemplate further Corps proceedings concerning departures from a former landfill permit, other than those enumerated in the statute. Although plaintiffs' mandamus suit to force consideration of the environmental effects of the plant before it is constructed is dismissed, the power company and the Corps are now aware of the existence of objections to the plant and invest in it further at their own risk. This investment should not be permitted to prejudice the protection of environmental values mandated by NEPA in future decisionmaking.

Counsel for Plaintiffs
Calvin Sawyer
1 First National Plaza
Chicago, Illinois 60600

Donald Dreyfus
Suite 588-604
Broadway
Gary, Indiana 46402

Counsel for Defendants
Richard Keiser U.S. Attorney
Federal Building
South Bend, Indiana

Fred Eichorn
5243 Hohmon Avenue
Hammond, Indiana 46320

[2 ELR 20356]

Grant, J.

ORDER

After due consideration, IT IS THE ORDER OF THIS COURT that defendants' motions to dismiss should be, and the same are hereby GRANTED.

MEMORANDUM

This is an action for mandamus and administrative review directed toward the Army Corps of Engineers as well as an injunction against the defendant Northern Indiana Public Service Co., (N.I.P.S. Co.). In their complaint filed 15 October 1971 plaintiffs charge that the defendant Army Corps of Engineers (Corps) issued a permit in 1929 allowing N.I.P.S. Co. to construct a land-fill adjacent to their power plant in Michigan City, Indiana, pursuant to 33 U.S.C. § 401 et seq. (Rivers and Harbors Act). The fill was completed in 1952, and N.I.P.S. Co. in March, 1970, began construction of an expanded power plant on the site of the landfill. Construction was discontinued a year later and N.I.P.S. Co.'s then pending application for a lake-front discharge flume allegedly withdrawn because of adverse environmental considerations. Plant construction once again began in August 1971 and plaintiffs unsuccessfully demanded of the Corps a cease and desist order pending issuance of a permit to build the new facility following public hearings. Plantiffs charge that the plant constitutes an environmental hazard and that the Corps' practice of awaiting completion of the project prior to authorizing an operating permit is an unlawful restraint upon its own discretion, asking for a writ of mandamus following the Court's review of the administrative actions.

Defendants filed motions to dismiss pursuant to F.R.C.P. 12(b) setting forth numerous grounds. Following extensive briefing and an oral argument, the Court took said motions under advisement and now renders judgment in favor of the defendants.

Defendants' arguments directed toward plaintiffs' failure to bring an action for mandamus pursuant to 28 U.S.C. 1361 were cured by a conforming amendment made to the complaint. Defendants further argue that the Corps has no continuing jurisdiction over the N.I.P.S. Co. landfill, and that the lack of pending application seeking additional authorization under the provisions of the Rivers and Harbors Act precludes any action by the Corps and this Court's jurisdiction. Plaintiffs urge that continuing jurisdiction is found in 43 U.S.C. 1311 (Submerged Lands Act), and that the Rivers and Harbors Act requires separate grants of both a permit to establish a landfill as well as any structure upon such a fill.

Clearly, we believe, the Submerged Lands Act retains in the federal government continuing jurisdiction over environmental use of submerged lands. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970). This jurisdiction is exercised in part by the Corps which is charged with issuing permits approving proposed landfills and structures upon navigable waters. The issuance of these grants depends in part upon the environmental impact of the proposed project. Zabel, supra; Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. 1971); 42 U.S.C. 4231 et seq., (National Environmental Protection Act).

The question of lack of a pending permit application begs the question of whether a permit is required of N.I.P.S. Co. for the project now underway. Plaintiffs contend that the construction represents a "substantial change" in use, outside the authorization inherent in the landfill permit, and a use necessitating further approval of the Corps. Zabel, supra; Calvert Cliffs', supra; 33 U.S.C. 403. In our view, neither the cases nor the statute supports plaintiffs' position. In Zabel the court affirmed an administrative denial of plaintiffs' application for a dredge and fill permit. In Calvert Cliffs' the court mandated certain changes in the defendant-agency's approval procedures. Unlike the authority relied upon by the instant plaintiffs, we are not presented with a current, statutorily-based permit proceeding. The Rivers and Harbors Act does not contemplate further proceedings based upon alleged departures from a former landfill permit, other than those specifically identified by the Act. Since N.I.P.S. Co.'s project is not currently the subject of further intrusions into the navigable waters, the Corps has no present duty to exercise its powers under the Act. 33 U.S.C. 403.

Although we now find plaintiffs' action to be untimely, we are mindful of the defendant N.I.P.S. Co.'s representation that it shall make further application for a flume discharge permit and the defendant Government's representations with respect to the anticipated application. The future application must involve considerations of the N.E.P.A. The Act requires a balancing of environmental and economic interests in proceedings open to public participation. By reason of the instant action defendant N.I.P.S. Co. has been put on notice that its proposed application will come under close scrutiny. Accordingly, we would expect that in any future administrative or judicial proceedings, conflicts between economic and environmental interests would, because of the instant action, be resolved in the latter's favor. The defendant should not be heard to protest "fait accompli", as it has been forewarned that it now proceeds at its own risk.