ELR Citation: ELR 20194
No(s). 76-1922 (5th Cir. Feb 17, 1978)

The Fifth Circuit reverses a lower court's decision that the Corps of Engineers' denial of a dredge and fill permit was neither arbitrary nor capricious. After an extended statutory analysis, the court concludes that the applicants are mistaken in contending that the relevant standard of judicial review under the Administrative Procedure Act is the "substantial evidence" test of §706(2)(E) rather than the "arbitrary, capricious, an abuse of discretion" test of §706(2)(A). The court rejects the applicants' further contention that the procedures set forth in the Corps' regulations do not satisfy the Fifth Amendment's requirements of due process. The court rules, however, that the Corps, by failing to disclose to the applicants all submissions opposing the permit and breaching a stipulation to consider only substantive objections from state agencies, did not properly adhere to the regulations in this case, and that these procedural irregularities did in fact deprive the applicants of their due process rights. The court directs the Corps to remedy these defects on remand.

Counsel for Plaintiffs-Appellants
Robert J. Paterno
Taylor, Brion, Buker & Greene
1415 Brickell Ave., Miami FL 33131
(305) 379-9303

Counsel for Defendant-Appellee
Mary Anne Walsh
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-5053

Before GOLDBERG, AINSWORTH, and FAY, Circuit Judges.