ELR Citation: ELR 20141
No(s). 83-6126 (E.D. La. Sep 14, 1984)

The court holds that the Corps of Engineers properly considered the mitigating effect of permit conditions in issuing a finding of no significant impact (FONSI) under the National Environmental Policy Act (NEPA) for oyster shell dredging in Louisiana. The court first rules on three procedural motions. The court grants a motion to limit review to the administrative record, finding that further discovery is unnecessary because the record indicates that the Corps made an objective assessment of the reports plaintiffs seek to discover. The court declines to dismiss the state of Louisiana as a party plaintiff, since the state has parens patriae standing to sue the federal government for a violation of a federal statute; the state is not equitably estopped from suing by virtue of its having issued relevant state permits for the dredging; and, the state is not prohibited from bringing the action by state policies. Finally, the court denies a motion to dismiss for failure to join two state agencies as parties under Federal Rules of Civil Procedure 19, since Rule 19 applies only to adjudications of private rights, and the rights embodied in NEPA are public rather than private.

The court turns to the cross-motions for summary judgment, and notes that the burden is on the plaintiff to demonstrate the necessity for an environmental impact statement (EIS). It is undisputed that the effects of the dredging would be environmentally significant if not tempered by the conditions to be imposed by the Corps on the permits. The court holds, however, that NEPA allows consideration of such conditions in the determination of whether a significant impact will occur and whether to prepare an EIS. In deciding the further question of whether the Corps' FONSI was reasonable, the court notes that it was proper for the Corps to consider the broad context in which a deleterious action takes place. That is, despite the admitted adverse effects of the dredging on denthic organisms, the Corps was reasonable to conclude that the vast remaining areas of undisturbed benthic organisms rendered the effects insignificant. The conditions imposed by the Corps on their permits combined with the conditions imposed by the state on the permits they issued provide sufficient mitigation to render the Corps' FONSI reasonable.

Counsel for Plaintiffs
William J. Guste Jr., Attorney General; Peter M. Arnow, Ass't Attorney General
2-3-4 Loyola Bldg., New Orleans LA 70112
(504) 568-5575

Michael Osborne
Osborne, McComiskey & Richardson-Harp
3420 Prytania St., New Orleans LA 70115
(504) 891-4418

James T.B. Tripp
Environmental Defense Fund, Inc.
444 Park Ave. South, New York NY 10016
(212) 686-4191

Nicholas C. Yost
Center for Law in the Public Interest
1575 I St. NW, Washington DC 20005
(202) 371-0199

Counsel for Defendants
Fred E. Salley, William F. Baity, Ass't U.S. Attorneys
Hale Boggs Federal Court Bldg.
500 Camp St., New Orleans LA 70130
(504) 682-2921

Joseph E. LeBlanc Jr.
Milling, Benson, Woodward, Hillyer, Pierson & Miller
1100 Whitney Bldg., New Orleans LA 70130
(503) 581-3333

James A. Burton
Simon, Peragine, Smith & Redfearn
Thirtieth Floor, Energy Center, 1100 Polydoras St., New Orleans LA 70163
(504) 569-2030