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KALUR v. RESOR

December 21, 1971

Jerome S. KALUR and Donald W. Large, Plaintiffs,
v.
Stanley R. RESOR, Individually and as Secretary of the Army, et al., Defendants


Aubrey E. Robinson, Jr., District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

 The suit requires the interpretation of The Rivers and Harbors Act of 1899, Section 13 (Refuse Act). *fn1" This section prohibits the discharge of refuse into any navigable water, or tributary of any navigable water. The same section provides that the Secretary of the Army may permit the deposit of "refuse" in navigable waters. *fn2" In 1971, pursuant to Executive Order Number 11574, *fn3" the Corps of Engineers, Department of the Army, promulgated regulations *fn4" covering the issuance of these permits. These regulations included the power to issue permits to dump "refuse" into navigable waters of the United States and into any tributary where its flow would reach a navigable water. *fn5"

 Plaintiffs aver that the defendants have exceeded their statutory authority, and continue to do so, in issuing permits under the terms of these regulations. Plaintiffs claim that the defendants have absolutely no authority or right to order the issuance of permits to deposit "refuse" matter into non-navigable waterways of the United States and the Grand River of Ohio in particular.

 In addition to the above, plaintiffs' complaint alleges a further violation of environmental laws on the part of defendants. The National Environmental Policy Act *fn6" states that all agencies of the federal government shall . . . "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official" on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. *fn7" This Act, the plaintiffs state, is subverted and violated by the regulations issued by the Corps of Army Engineers wherein they exempt the Corps from making such a detailed statement in all cases where the question is solely one of water quality. *fn8"

 The defendants deny that they have acted in excess of their statutory authority or in violation of the National Environmental Policy Act. There being no questions of fact in dispute the parties have briefed the issues of law. These issues are now before this Court for determination on cross motions for Summary Judgment. It is the finding of this Court that the defendants have acted in excess of their statutory authority and also, in violation of the National Environmental Policy Act.

 I

 Defendants initially challenge this Court's jurisdiction over the subject matter. Their claim is that plaintiffs lack standing to sue as required by Article III of the United States Constitution. Defendants enunciate a two step test to determine whether standing exists. *fn9"

 First, plaintiff must allege that the actions of the defendants have caused him injury in fact. Second, that the interests plaintiffs seek to protect are arguably within the zone of interests to be protected by the statute or constitutional guarantee in question. An application of these tests supports the view that plaintiffs have standing to sue.

 The dispute is presented in an adversary proceeding. The plaintiffs are aggrieved parties. Their injuries stem from their aesthetic and environmental concerns for the Grand River, and other non-navigable streams in the States of Ohio and Wisconsin. *fn10" The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness will occur. This adversity sharpens the presentation of issues, and Courts rely upon this for the illumination of difficult questions.

 Standing exists when the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise.11 Defendants, in their brief, recognized that federal courts have granted standing to persons or groups that have asserted the threat of destruction of public resources and amenities. *fn12" Defendants aver that several decisions establish that in order to have standing in environmental suits the party must be directly affected by the governmental activity involved, and that without a showing of a more direct interest, standing in the legal sense is not established. *fn13"

 These cases are distinguishable. There, the plaintiffs were suing based solely upon their desire to protect the public interest. The courts were unable to find any other interest or contact that those plaintiffs had with the subject matter of the suit. *fn14" Here, taking the material allegations of the plaintiffs' complaint as true, *fn15" the plaintiffs have direct contacts with non-navigable waters; they are conservationists who regularly engage in canoeing and other forms of outdoor water recreational activities, and they are constant users of the Grand River and other non-navigable waters in Ohio and Wisconsin.

 The second test, that the interests plaintiffs seek to protect are arguably within the zone of interests to be protected, was directly approached by the Supreme Court in Association of Data Processing Service Organization v. Camp. *fn16" The Court stated:

 
The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complaint is arguably within the zone of interests to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person "aggrieved by agency action within the meaning of a relevant statute." (5 U.S.C. ยง 702 (1964) ed., Supp. IV) That interest, at times, may reflect "aesthetic, conservational, and recreational " as well as economic values. Scenic Hudson Preservation Conf. v. F.P.C., [2 Cir.] 354 F.2d 608, 616; Office of Communication of United Church of Christ v. F.C.C., 123 U.S. App. D.C. 328, 334-340, 359 F.2d 994, 1000-1006. (Emphasis added.) *fn17"

 Thus, defendants' two pronged test is met. First, the injury alleged is to plaintiffs' environmental interest in the Grand River. Such interests were recognized as sufficient in Data Processing. Second, these interests are arguably within the zone of interests to be protected or regulated by the Refuse Act and the National Environmental Policy Act. Both of these statutes encompass the environmental interests in the waters of the United States that the plaintiffs possess. These plaintiffs, therefore, have standing to sue under the edicts of the Supreme Court and through the Administrative Procedure Act. Their environmental interests, and their personal contact with and use of the waters in question, are protected.

 II

 Defendants next allege the lack of a case or controversy. In deciding whether a case or controversy exists, one must look to the rigorous set of rules as to what constitutes a justiciable case or controversy as laid down by the Supreme Court. The judicial power of this Court extends to all cases and controversies as designated under our Constitution. Cases, however, are not to be decided in a vacuum. The judicial power may be applied only in those instances where questions arise in a case or controversy. A "controversy" in the constitutional sense must be one that is appropriate for judicial determination. *fn18" A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. *fn19" The controversy must be definite and concrete, touching legal relations of parties having adverse legal interests. *fn20" Controversies must be real and substantial, admitting of specific relief through a decree of a conclusive character. This distinguishes them from advisory opinions on what the law would be upon a hypothetical state of facts. Courts must limit their decisions to concrete cases where questions are precisely framed in clashes of genuine adversary argument that explores the penumbra of every issue. *fn21" Focusing on the key elements, it is imperative that Courts look to the nature of the case before them, the interests of the parties involved, and the relief sought by them in determining whether they may extend their judicial power to the case. All three factors are inexorably intertwined in the decision.

 As examined above, the legal interests involved in this case are sufficient to meet the standards of a "case and controversy." The government argues that this is not a situation meeting the requirements for a "case and controversy." They point to alleged vagueness of the facts and lack of injury to the plaintiffs. The defendants note that the public issues are of such importance and complexity that they should not be decided on speculative facts as an abstract question. Further, defendants state that no permits have been issued under the regulations in dispute, and no dumping of refuse has occurred due to such permits that would injure the plaintiffs' interests. The defendants call for judicial restraint to await the developments of the permit program. They aver that plaintiffs may bring any objections to the permit program before the Corps of Engineers when they hold hearings on the issuance of particular permits.

 Defendants' arguments are without merit. It remains unchallenged that the regulations have been promulgated. There is contemplated no further action by the Corps of Engineers as to their content or expanse. The Supreme Court, in Abbott Laboratories v. Gardner, *fn22" upheld the availability of pre-enforcement judicial review of a regulation challenged as promulgated in excess of a government agent's authority under the law. There the Supreme Court rejected the same arguments forwarded here by defendants, and held that the issues were appropriate for judicial resolution because the issues were solely legal, and no further administrative rule-making procedures were contemplated. Unless there is a showing of clear and convincing evidence that Congress did not want judicial review of this question, then aggrieved persons may obtain review of administrative decisions. *fn23" The fact that hearings are to be held upon some individual applications for permits does not aid the person who desires to challenge the authority of the agency to issue those permits initially. *fn24"

  In Toilet Goods Association v. Gardner, *fn25" the Supreme Court set out two conditions that need be met to determine reviewability. First, are the tendered issues appropriate for judicial review? Second, what is the hardship to the parties should review be denied? Here, Abbott Labs. dictates the answer to the first condition. The issues are appropriate for review. The hardship to the parties, if review should be denied, is explicitly suggested by the revelation that twelve corporations have either submitted applications for permits to dump refuse into the Grand River, or have noted their intent to do so. If permits to dump are issued, the aesthetic and environmental interests recognized by the ...


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