ELR Citation: ELR 20527
No(s). 89-2090-S (D. Kan. Feb 28, 1989)

The court holds that plaintiff may not bring a suit under the Bald Eagle Protection Act (BEPA), Federal Water Pollution Control Act (FWPCA), the Endangered Species Act (ESA), or the National Environmental Protection Act (NEPA) to prevent a city and developers from removing cottonwood trees used by bald eagles as winter perches. First, the court holds that BEPA contains no language that creates a private right-of-action against defendant. Second, the court holds that plaintiff did not comply with FWPCA §505(b)(2), which requires that the Environmental Protection Agency be notified 60 days before a citizen suit is filed, nor did plaintiff provide authority to allow the court to waive this requirement. The court next holds that plaintiff did not comply with ESA §11(g), which requires a 60-day presuit notice to the Department of the Interior. The court also holds that plaintiff lacks standing under NEPA. Plaintiff failed to show that its individual members would suffer "injury-in-fact"—a requirement for associational standing under the Administrative Procedure Act. Finally, the court holds that even if plaintiff properly asserted associational standing, its contention that the U.S. Army Corps of Engineers violated NEPA by failing to prepare an environmental impact statement would not apply because an EIS is required only for federal actions "significantly affecting the quality of the human environment." The Corps did conduct an environmental assessment and determined that defendant's proposed action would not have a significant effect.

Counsel for Plaintiff
Robert V. Eye
1347 1/2 Massachusetts St., Lawrence KS 66044
(913) 746-1640

Counsel for Defendants
John W. Lungstrum, Scott J. Bloch
Stevens, Brand, Lungstrum, Golden & Winter
502 First National Bank Tower, P.O. Box 189, Lawrence KS 66044-8200
(913) 843-0811

Gerald L. Cooley
Allen, Cooley & Allen
201 First National Bank Tower, 900 Massachusetts St., Lawrence KS 66044
(913) 843-0222