Citizens Committee for the Columbia River v. Resor

Civil No. 69-498 (D. Or. February 16, 1971)

Suit to invalidate Corps of Engineers' dredge-and-fill permit allowing the expansion of the Portland International Airport into the Columbia River dismissed. Plaintiffs, national and local conservation organizations, do not have standing to challenge the Corps' issuance of the permit, although they allege that the project threatens their continued existence by damaging their ability to achieve group purposes and to maintain membership and that it will cause economic, recreational and aesthetic injuries to their individual members whouse the river.

Counsel for Plaintiffs:
Marvin B. Durning
Cary, Durning, Prince & Smith
1411 Fourth Avenue Building
Seattle, Washington 98101
(206) 624-8901

Counsel for Federal Defendants:
Sidney I. Lezak U.S. Attorney
Jack G. Collins First Assistant U.S. Attorney
506 Courthouse, Box 71
Portland, Oregon 97207
(506) 226-3361 ex. 1531

Counsel for Intervenor Defendant Port of Portland:
Lofton L. Tatum
Donald J. Morgan
Wood, Wood, Tatum, Mosser & Brooke
1505 Standard Plaza
Portland, Oregon 97204
(503) 224-5430

[1 ELR 20207]

SOLOMON, J.

This action challenges the validity of a permit issued on August 5, 1969, by the United States Army Corps of Engineers pursuant to its authority under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. The permit authorizes the Port of Portland to expand the Portland International Airport by dredging and filling a portion of the Columbia River.

On December 9, 1970, two segregated issues were tried: (1) whether the plaintiffs have standing to maintain this action, and (2) whether the permit authorizes the construction of dikes, dams, or causeways, for which the consent of Congress is required by 33 U.S.C. § 401.¹

Because I find for the defendants on the standing issue, I do not reach the merits of the case.Tileston v. Ullman, 318 U.S. 44 (1943).

The plaintiffs are the Citizens Committee for the Columbia River, a non-profit association of individuals who live in the Portland, Oregon-Vancouver, Washington, area; the Sierra Club, a non-profit California corporation with members and chapters throughout the United States, including Washington and Oregon; the Washington State Sportsmen's Council, Inc., a non-profit Washington corporation with member clubs and individual members throughout the state of Washington; the Association of Northwest Steelheaders, a non-profit Oregon corporation with members and chapters in Oregon, Washington and Idaho; and the Washington Environmental Council, a non-profit Washington corporation with approximately 50 member clubs and many individual members, primarily in the state of Washington.

The purposes of plaintiff Citizens Committee include conservation, noise abatement, enhancement of air and water quality, and preservation of land, fish and wildlife, natural beauty, historical values and recreational activities. The other plaintiffs have similar environmental and recreational purposes.

Plaintiffs allege that the project will cause erosion, shoaling, silting and pollution which will injure the beds, bars, sands, waters, and fish and wildlife of the Columbia River. They also allege that the project will cause economic, recreational, and aesthetic injuriesto individual members of their organizations who have homes or businesses in the area or who use the river for recreation.

Plaintiffs further allege that they are injured as organizations because the project will damage each organization's effectiveness in carrying out group purposes, ability to obtain and maintain membership, status, and continued existence. Finally, they assert that they are appropriate private attorneys general to bring this action in the public interest because of their special environmental interests and their demonstrated records of activity in behalf of environmental protection.

Plaintiffs do not allege that any group properties are being infringed or threatened by the project. Neither do they allege that the project will interfere with any group activities or programs on the Columbia River or its surrounding area.

In Sierra Club v. Hickel, 433 F.2d 24 (Sept. 16, 1970), and Alameda Conservation Association, et al. v. State of California, et al., __ F.2d __, No. 22,961 (Jan. 19, 1971), two recent Ninth Circuit Court of Appeals cases, the Court held that similar non-profit groups, who made similar claims to support standing, had no standing to sue and therefore dismissed the cases as to them.

In accordance with these decisions, by which I am bound, I find that the plaintiffs have no standing to maintain this action, and it is therefore dismissed.

1. Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, provides as follows:

It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any . . . navigable river . . . of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army . . . .