Wyoming v. Hoffmann

No. C76-95K (423 F. Supp. 450, 9 ERC 1892) (D. Wyo. November 4, 1976)

ELR Digest

The state seeks a writ in the nature of mandamus and declaratory relief holding regulations promulgated by the Army Corps of Engineers and the Environmental Protection Agency pursuant to § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344, ELR 41124, arbitrary and unconstitutional because they assert jurisdiction over waters not subject to the traditional navigational servitude. Defendants move to dismiss.

The regulations are final agency action and are thus subject to judicial review. Defendants' motion to dismiss raises the questions of whether any of plaintiffs' claims are ripe for such review and whether plaintiffs in any case have standing to raise these claims. Three of the four affidavits upon which plaintiffs' suit rests assert state injuries which are too speculative to warrant judicial intervention. The final affidavit, however, which lists specific cost increases in highway department projects that will result from compliance with the permit provisions set forth in the regulations, sufficiently sustains the requirements of both ripeness and standing to justify judicial review. Gardner v. Toilet Goods Ass'n, 387 U.S. 167. It therefore appears that plaintiffs have stated a claim upon which relief can be granted.

The full text of this opinion is available from ELR (4 pp. $0.50, ELR Order No. C-1104).

Counsel for Plaintiffs
Steven L. Freudenthal, Marilyn S. Kite
210 State Capitol, Cheyenne WY 82002
(307) 777-7384

Counsel for Defendants
James P. Castberg, U.S. Attorney
P.O. Box 668, Cheyenne WY 82001
(307) 328-2126

Kerr, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]