Save the Dunes Council v. Brown

No. S73-157 (N.D. Ind. May 10, 1977)

The district court grants defendant's motion to dismiss plaintiffs' action to compel the Secretary of the Army to remedy erosion caused by federal harbor structures occurring along the Indiana Dunes National Lakeshore. The court has jurisdiction to issue a writ of mandamus to compel a federal official to perform a ministerial or discretionary act, but not to direct or control the results of the discretionary conduct unless the federal official has abused his discretion. The Secretary's current consideration of the erosion problem — preparation of a preliminary study — is a proper exercise of a discretionary act.

Counsel for Plaintiffs
Donald Dreyfus
504 Broadway, Gary IN 46402
(219) 885-5551

Marshall Patner
109 N. Dearborn, Chicago IL 60602
(312) 641-5570

Counsel for Defendant
Richard Kieser, Acting U.S. Attorney
Federal Building, South Bend IN 46601
(219) 232-3086

[7 ELR 20518]

Grant, D.J.:

Memorandum

On August 7, 1973 plaintiffs brought this action¹ under the Federal Mandamus Statute, 28 U.S.C. § 1361 (1970), to compel the Secretary of the Army (Secretary) to alleviate the cause of erosion occurring along the Indiana Dunes National Lakeshore. It is alleged that federal harbor structures located in Lake Michigan, at Michigan City, Indiana, are the cause of such erosion. On November 2, 1973 the defendant Secretary filed a motion seeking dismissal of the complaint or, in the alternative, summary judgment, on the grounds that the court is without jurisdiction to issue a writ of mandamus in this case.

Mandamus is an extraordinary remedy issued by the highest court of original jurisdiction, designed to compel a public official to perform a particular duty. Commissoner of Patents v. Whiteley, 4 Wall. 522, 526 (1865). Historically, the writ originated in the King's Bench of England and, in 1975, became a recognized part of American jurisprudence. United States v. Lawrence, 3 Dall. 42 (1795). In Kendall v. United States, 12 Peters 524 (1838), the Supreme Court explained that the source of a court's power to issue such a writ is derived from the inherent authority of district courts. But for reasons which today are somewhat obscure, the power was said to exist only with respect to those courts located in Washington, D.C.:

Congress has entire control over the District [of Columbia] for every purpose of government; and it is reasonable to suppose that, in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice. The Circuit Court here [which today, of course, is the district court] is the highest court of original jurisdiction; and if the power to issue a mandamus in a case like the present exists anywhere, it is vested in that court.

Kendall v. United States, supra.

In 1962 Congress realized that "[t]he result of this historic accident has been that a person who seeks to have a federal court compel a federal official to perform a duty of his office must bring his action in the District Court for the District of Columbia." U.S. CODE CONG. & ADMIN. NEWS, 1962, 87th Cong., 2d Sess., p. 2785. Considering this to be "an unfair imposition upon citizens who seek no more than lawful treatment of their Government," ibid at 2786, Congress enacted § 1361:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

It is clear from the legislative history that Congress intended neither to expand nor contract the principles of mandamus which had evolved in the Supreme Court over the past 200 years. Instead, its principal aim was merely to provide conveniently located federal forums in suits against public officials.²

Perhaps today's leading authority on point, decided prior to the enactment of § 1361, is Wilbur v. United States, 281 U.S. 206 (1930). In that case, the Supreme Court summarized the long-standing principles surrounding the remedial writ of mandamus:

[7 ELR 20519]

Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either.

Id. at 218. A writ may therefore be issued by a district judge to compel the performance of a ministerial or discretionary act; but in the latter instance a court may not direct or control the results of discretionary conduct.

Our initial task here is to characterize the duty or duties allegedly owed the plaintiffs by the Secretary of the Army. Plaintiffs maintain that §§ 426(g), 426(i), 540, 577, and 701(t), of Title 33, place various affirmative duties upon the defendant, which duties, according to the complaint, the Secretary has refused to fulfill. The court has carefully examined these statutes and concludes that, although the Secretary has authority to perform the acts stated therein, he is under no obligation to take such action. In short, the statutes create powers, described in Wilbur, as discretionary:

The duties of executive officers . . . usually are connected with the administration of statutes which must be read and in a sense construed to ascertain what is required. But it does not follow that these administrative duties all involve judgment or discretion of the character intended by the rule just stated. Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary. But where a duty is not thus plainly prescribed but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.

281 U.S. at 218.

Having determined that the Secretary's duties are discretionary in nature, the next question is whether the court may compel the performance of such acts. Although district courts are equipped to command discretionary conduct, the federal official remains the ultimate decision-maker. That is, he may decide to take some form of action prescribed by statute, or he may decide to do nothing at all. A court may interfere only when the official's actions or inactions constitute an abuse of discretion. See, e.g., Chaudoin v. Atkinson, 494 F.2d 1323 (3d Cir. 1974); and Delaware River Joint Toll Bridge Comm. v. Resor, 273 F. Supp. 215 (E.D. Pa. 1967). Neither of those situations is present in the instant case.

The record³ shows that the Secretary is currently considering the serious problem of erosion along the Lakeshore in a manner well within the parameters of Title 33. In 1970, the town of Beverly Shores, Indiana, and the Port Authority of Michigan City, Indiana, requested the Army Corps of Engineers to study and remedy the erosion dilemma. The following year the Corps prepared a report entitled, "Section 111 Reconnaissance Report, Michigan City Harbor, Indiana." The report was a preliminary study of the effects of harbor structures on the shorelines of Michigan City and Beverly Shores. The study concluded that "[f]urther detailed studies will be required to develop a precise plan of improvement and determine the extent of actual shore damage attributable to the Federal navigation structure."⁴

In light of these facts, the court finds that the Secretary has properly exercised his discretion by adopting a position with respect to the matter expressed in plaintiffs' complaint. Since the court is without jurisdiction to order a course of action more favorable to the plaintiffs, this cause must be dismissed. See, Delaware River Joint Toll Bridge Comm. v. Resor, supra.

For the foregoing reasons, defendant's motion for summary judgment is hereby GRANTED.

1. This action was originally commenced against former Secretary of the Army, Howard Callaway. See Rule 25(d), F.R.C.P.

2. To effectuate this purpose, Congress simultaneously enacted into law the general venue statute of 28 U.S.C. § 1391 (1970).

3. Since the court has considered materials outside the pleadings themselves, Rule 56, F.R.C.P., shall govern the disposition of this motion.

4. Since 1974, neither side has informed the court as to the results of the Maffat study. Thus, we must assume that the Corps is still examining the over-all situation in accordance with its original plan.