SIERRA CLUB v. MARSH

701 F. Supp. 886 (1988) | Cited 0 times | D. Maine | October 18, 1988

MEMORANDUM DECISION ON MOTION FOR PRELIMINARY INJUNCTION

CONRAD K. CYR, UNITED STATES DISTRICT JUDGE

This is the third round of litigation over the proposed development of a marine dry cargo terminal on Sears Island in Penobscot Bay. The plaintiffs, Sierra Club and two of its members, seek declaratory and injunctive relief suspending the permits recently issued for the Sears Island project by the United States Army Corps of Engineers [the Corps] and the United States Coast Guard [the Coast Guard], and enjoining funding of the project by the Federal Highway Administration [FHWA]. In addition to the federal defendants, plaintiffs join the Maine Department of Transportation [MDOT], the proponent of the project, as a defendant.

I. BACKGROUND

Sears Island is an uninhabited, undeveloped, and mostly forested 940-acre island located in upper Penobscot Bay, near Searsport, Maine. The island is connected to the mainland by a gravel bar which is submerged except at low tide and is covered by no more than four feet of water at high tide. Pursuant to a Port Planning and Development Program established in 1976, MDOT targeted the Searsport area for potential development of a modern seaport facility capable of competing with new port facilities outside Maine. 1"

The proposed MDOT Sears Island marine dry cargo terminal itself would involve the development of approximately 50 acres near the western shore of the island. 2" The overall project includes provisions for the development of a 160-acre industrial park adjacent to the terminal. The preferred design envisions a 27-acre marginal wharf with two ship berths, having the potential for future expansion to 35 acres and 6 berths. Access to the mainland would require construction of a 2.3 mile-long, two-lane highway, including a 1,200' causeway and a 1.5 mile railroad spur along the length of the gravel bar connecting the island and the mainland.

MDOT considered alternative sites for the proposed port, including two sites on nearby Mack Point, near the mainland end of the proposed Sears Island causeway. Unlike Sears Island, Mack Point is already 50% developed, and further development of Mack Point would require working around existing industrial and port facilities. MDOT rejected both of the alternative sites on Mack Point as impracticable in light of the overall project purposes. The configurations of the Mack Point alternatives and the preferred Sears Island site are depicted in Appendix A.

Plaintiff Sierra Club has commenced two previous actions relating to the proposed Sears Island port development. In Sierra Club v. Marsh, 769 F.2d 868, 877-78 (1st Cir. 1985) (Sierra Club I), the First Circuit held that the federal defendants - the Corps and FHWA - erred in finding that the project would have no significant environmental impacts necessitating the preparation of an environmental impact statement [EIS] pursuant to the National Environmental Policy Act [NEPA], 42 U.S.C. § 4332. The First Circuit concluded that the combined impacts resulting from the construction of the causeway and the port (which the Corps and FHWA had addressed) and the likely industrial development which the port facility would attract (which was not adequately considered) were significant enough to require preparation of an EIS. Consequently, further construction and funding of the project were enjoined, but not before substantial clearing and grading had been done at the proposed Sears Island terminal site and approximately 303,000 cubic yards of dredged material (approximately 60% of the total required to complete the initial one-berth terminal called for in phase I of the proposed project) had been removed. See Final EIS, at iv.

In Sierra Club v. Secretary of Transportation, 779 F.2d 776 (1st Cir. 1985) (Sierra Club II), the First Circuit held that the Coast Guard had acted arbitrarily and capriciously in issuing a permit under the General Bridge Act of 1946, 33 U.S.C. § 525(b), for construction of a "bridge" along the 1,200' gravel bar between Sears Island and the mainland. The court ruled that by including a 2-foot diameter pipe through the planned causeway MDOT had not transformed the "causeway," for which the permitting process is more searching, 3" into a "bridge." Thus, the permit under the General Bridge Act was found to be invalid. The First Circuit expressed no opinion as to whether Sierra Club would have a private right of action to challenge a causeway permit issued by the Coast Guard under the proper statute, i.e., section 9 of the River and Harbors Appropriation Act of 1899, 33 U.S.C. § 401. 4"

In response to these First Circuit decisions, the federal defendants commenced the preparation of an EIS. FHWA was designated the lead agency in the EIS process. See 40 C.F.R. §§ 1501.5 & 1508.16. Other federal agencies participating in the EIS process were funding agencies, such as the Economic Development Administration [EDA] and the Federal Rail Administration [FRA]; permitting agencies, such as the Corps and the Coast Guard; and environmental or resource agencies, such as the Environmental Protection Agency [EPA], the Fish and Wildlife Service [FWS], and the National Marine Fisheries Service [NMFS]. FHWA delegated its responsibility for preparation of the EIS to MDOT, which in turn engaged two private consultants, Normandeau Associates, Inc., and Economic Research Associates. 5"

Pursuant to 40 C.F.R. § 1507, FHWA published a notice of intent to prepare an EIS for the Sears Island project, see 50 Fed. Reg. 35400 (Sept. 4, 1985), and Normandeau Associates prepared a "scoping" document preliminarily identifying the subject matter of the EIS. On December 5, 1985, a scoping meeting was held among all agencies participating in the EIS process. A second meeting was held on February 12, 1986, at which the participating agencies discuss the scope of the EIS treatment of the purpose and need of a cargo terminal, alternatives to the Sears Island site, the affected environment, the environmental consequences of alternatives, and mitigation measures.

A preliminary draft EIS [DEIS] was distributed among the cooperating agencies on April 23, 1986, in preparation for an EIS progress report meeting on May 12, 1986, at which there was criticism of the MDOT decision to reject both Mack Point sites as impracticable alternative sites for the project. It was suggested that the Mack Point alternatives be carried through the full impact analysis, at the same level as the Sears Island site. In addition, disagreement was expressed, principally by FWS, concerning the MDOT proposal for analyzing secondary impacts, which were to be limited to currently viable development proposals. 6"

The DEIS was issued on July 7, 1986, and a public hearing on the DEIS was held August 21, 1986. FHWA described the meeting as follows:

Approximately 100 persons attended the hearing with 12 making prepared statements. As anticipated, most of those speaking were from the local community and were in favor of the projects for two main reasons. One was the belief that construction of the facility would spur the local depressed economy by providing jobs. The second was expressed primarily by shipping interests and was based on the strong belief that the existing port facilities at Mack Point are outmoded, overcrowded and unsafe.

As also anticipated, the Sierra Club strongly denounced the project as unneeded and based on erroneous or misleading and/or incorrect data in the DEIS. Actually, the Sierra Club's contentions were clearly stated and appropriately referenced to applicable sections of the DEIS. This will facilitate efforts in responding to Sierra Club concerns. It is important to note that no new issues were introduced and oddly enough, very few environmental concerns were voiced by opponents.

FHWA File Memorandum by William Richardson (Aug. 22, 1986).

EPA continued to express its disapproval of the rejection of the Mack Point alternatives. Whereupon, MDOT decided that the FEIS would include a full analysis of the impacts of the Mack Point alternatives. See State of Maine Inter-Departmental Memorandum by David A. Ober (Dec. 17, 1986). 7" Meanwhile, EPA hired a consultant, Temple, Barker and Sloane [TBS], to prepare a study on the practicability of the Mack Point alternatives. At a meeting on May 14, 1987, representatives of MDOT, FHWA, EPA, and the Corps discussed apparent conflicts between the conclusions of TBS (which concluded that, given market demand, Mack Point would be adequate at least through the year 2000) and Booz-Allen and Hamilton [Booz-Allen] (which concluded that, based on market potential, Mack Point could not practicably handle forecasted cargo volumes).

A preliminary FEIS was issued in late August 1987, and despite continued opposition by FWS, NMFS and EPA, the FEIS was approved by FHWA on October 9, 1987. After receiving additional comments on the FEIS from environmental agencies and Sierra Club, n.8 [Footnote Omitted] inter alia, on December 18, 1987 FHWA issued its Record of Decision [ROD] finally approving the Sears Island project.

Prior to issuing permits under section 404 of the Clean Water Act, 33 U.S.C. § 1344, and subsequent to issuance of the FEIS, the Corps conducted further review of the MDOT permit application. On December 1, 1987, and again on February 19, 1988, the Corps held meetings with EPA, FWS and NMFS to discuss opposition to the selection of Sears Island. Notwithstanding the failure to resolve differences with the environmental agencies, on March 14, 1988 the Corps Division Engineer issued the Corps ROD approving the MDOT application for a permit for the Sears Island project. EPA sought formal review of the Division Engineer's decision by the Assistant Secretary of the Army, who gave final Corps approval for the project on May 11, 1988. 9"

On July 22, 1988, the Coast Guard issued its ROD permitting MDOT to construct the causeway to Sears Island.

II. PRESENT PROCEEDINGS

Plaintiffs filed a three-count complaint for injunctive and declaratory relief on May 19, 1988. A fourth count was added by the amended complaint filed on August 16, 1988, joining the Coast Guard as a defendant. Upon learning that MDOT planned to resume project construction on August 29, 1988, plaintiffs filed their motion for preliminary injunctive relief on August 12, 1988. Hearing was held on the motion for preliminary injunction on September 8, 1988. 10"

Count I alleges that the Coast Guard acted arbitrarily and capriciously in issuing a permit for construction of the causeway to Sears Island without congressional approval. Plaintiffs specifically challenge the Coast Guard determination that the causeway construction site is a "river or other waterway, the navigable portions of which lie wholly within" Maine, under 33 U.S.C. § 401. Review is sought pursuant to the Administrative Procedure Act [APA], 5 U.S.C. § 706(2)(A).

Count II alleges that the Corps permit violates the Clean Water Act, 33 U.S.C. § 1344(b)(1), and EPA regulations, 40 C.F.R. § 230.10(a)(1), in that Mack Point offers practicable alternatives to the Sears Island site which would have less impact on the aquatic environment.

Count III alleges that the Corps violated its own regulations by: (1) issuing a permit without first undertaking independent review of information provided by MDOT and its consultants, as required by 33 C.F.R. § 302.4(a)(1); (2) failing to provide adequate review of the need for the project and of reasonable alternatives, as required by 33 C.F.R. § 302.4(a)(2); and (3) failing to consider the cumulative effect on wetlands alterations, as required by 33 C.F.R. § 320.4(b)(3).

Count IV alleges that FHWA and the Corps failed to comply with EIS procedures prescribed by NEPA and its companion regulations. Plaintiffs contend that significant additional information regarding the environmental impacts of the Sears Island project - including information that a six-berth facility would require development of 124 acres of upland, rather than the 50 acres stated in the FEIS - was received and relied on subsequent to FHWA approval of the FEIS. Plaintiffs assert that this new information necessitated preparation of a supplemental EIS.

Plaintiffs further allege that FHWA violated NEPA by: (1) responding inadequately to comments on the DEIS; (2) failing to make independent evaluation of the EIS, which was prepared by MDOT's consultants; (3) failing to obtain "conflict of interest" disclosure statements for certain MDOT contractors involved in preparation of the EIS; (4) failing to consider alternative means of providing employment in the Searsport area; (5) failing to give proper consideration to secondary impacts of the project; (6) improperly incorporating key documents by reference; and (7) failing to consider construction of a two-berth facility as an alternative.

The Corps is charged with noncompliance with NEPA by: (1) adopting an FEIS prepared by MDOT; (2) failing to make an independent evaluation of the EIS and of the information submitted by MDOT; (3) basing its permit decision on significant new information not part of the EIS; and (4) relying on studies and analyses conducted after the FEIS had been prepared.

III. MOTION FOR PRELIMINARY INJUNCTION

In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) (quoting Women's Community Health Ctr., Inc. v. Cohen, 477 F. Supp. 542, 544 (D. Me. 1979) (Gignoux, J.)).

As concerns alleged NEPA violations, plaintiffs contend that the criteria for preliminary injunctive relief are to be applied less rigidly. In Essex County Preservation Association v. Campbell, 536 F.2d 956, 962-63 (1st Cir. 1976), the First Circuit noted that in "certain 'exceptional cases,'" especially those involving "serious and substantive deficiencies in the EIS or equivalent study," "it is not necessary to balance the equities in issuing an injunction based on noncompliance with NEPA requirements." 536 F.2d at 962 (emphasis in original). Nevertheless, the court rejected the argument that a NEPA violation per se, regardless of its character, necessitates preliminary injunctive relief even in the absence of proof of irreparable harm. Id. And the court went on to state that, in the case of "'technical noncompliance' . . . where the court found that the EIS was 'comprehensive,' 'well documented,' and covered 'all the environmental consequences . . .,' . . . it is not improper for a court to weigh competing considerations in deciding the appropriateness of injunctive relief." Id. at 962-63.

In a more recent NEPA case, Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983), the government argued that, notwithstanding a NEPA violation (failure to file a supplemental EIS), there would be no irreparable injury to the plaintiff because oil exploration would not begin prior to a judicial resolution on the merits. The First Circuit responded that the government's argument ignored an important feature of NEPA.

NEPA is not designed to prevent all possible harm to the environment; it foresees that decisionmakers may choose to inflict such harm, for perfectly good reasons. Rather, NEPA is designed to influence the decisionmaking process; its aim is to make government officials notice environmental considerations and take them into account. Thus, when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered.

Id. at 952 (citations omitted). Thus, setting aside agency action after a full judicial review of the merits would not necessarily undo the harm to the administrative decisionmaking process; "the agency as well as private parties may well have become committed to the previously chosen course of action, and new information - a new EIS - may bring about a new decision, but it is that much less likely to bring about a different one." Id. (emphasis in original). By its decision in Watt, the First Circuit did not mean "to say that a likely NEPA violation automatically calls for an injunction; the balance of harms may point the other way." Id. (emphasis in original). However, a plaintiff seeking a preliminary injunction on the basis of an alleged NEPA violation "cannot be stopped at the threshold by pointing to additional steps between the governmental decision and environmental harm." Id. (emphasis in original).

The defendants argue that Watt has been undermined by the Supreme Court. In Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987), outer continental shelf [OCS] oil leases were challenged as having been issued without compliance with section 810 of the Alaska National Interest Lands Conservation Act [ANILCA], 16 U.S.C. § 3120. Speaking to the appropriateness of preliminary injunctive relief, the Supreme Court made clear that courts " must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief," 107 S. Ct. at 1402 (emphasis added), unless Congress has "foreclosed the traditional discretion possessed by an equity court . . .," id. at 1403 n. 9 (emphasis added). Thus, when determining whether to issue a preliminary injunction, courts are to focus less "on the [ANILCA] statutory procedure . . . than on the underlying substantive policy the process was designed to effect." Id. at 1403. The Court opined that the Ninth Circuit's position in Amoco, that "'irreparable damage is presumed when an agency failed to evaluate thoroughly the environmental impact of a proposed action' . ., is contrary to traditional equitable principles. . . . The environment can be fully protected without this presumption." Id. at 1404.

Amoco relied on Weinberger v. Romero-Barcelo, 456 U.S. 305, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982), which had reversed a First Circuit decision overturning a district court denial of injunctive relief against discharging Navy ordinance into coastal waters during weapons training. The district court had determined that there would be no appreciable harm to the environment from continued discharge of ordinance into the waters pending efforts by the Navy to obtain the required permit under the Federal Water Pollution Control Act [FWPCA], 33 U.S.C. § 1251 et seq. In reversing the district court, the First Circuit held that "'whether or not the Navy's activities in fact harm the coastal waters, it has an absolute statutory obligation to stop any discharges of pollutants until the permit procedure has been followed, . . .'" Id. at 311. Thus, the First Circuit seemed to be of the view that the equitable discretion of the district court to balance the competing interests of the parties had been curtailed. But the Supreme Court held that "the integrity of the Nation's waters, . . . not the permit process, is the purpose of the FWPCA," id. at 314, and thus the district court, absent a showing of injury to water quality, had not abused its equitable discretion by denying injunctive relief.

In Watt, the First Circuit distinguished Weinberger by noting that whereas the FWPCA "focuses upon the 'integrity of the Nation's waters, not the permit process,' . . . NEPA does the converse." 716 F.2d at 952 (citing Weinberger, 456 U.S. at 314). It is impossible to escape the conclusion that Amoco severely undercuts the distinction attempted in Watt.

The statute at issue in Amoco, section 810 of ANILCA, 16 U.S.C. § 3120, is intended to "minimize adverse impacts upon subsistence uses and resources" resulting from the removal of Alaskan lands from federal ownership. See 16 U.S.C. § 3120(a)(3); Amoco, 107 S. Ct. at 1399. The Court went on the say that

Section 810 does not prohibit all federal land use actions which would adversely affect subsistence resources but sets forth a procedure through which such effects must be considered and provides that actions which would significantly restrict subsistence uses can only be undertaken if they are necessary and if the adverse effects are minimized. There is no clear indication in § 810 that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the provision nor are we compelled to infer such a limitation.

Amoco, 107 S. Ct. at 1403 (emphasis added). The Court observed that, "like the First Circuit in Romero-Barcelo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect - the preservation of subsistence resources." Id. The Court made clear that absent a showing of irreparable injury to subsistence resources, a preliminary injunction would be inappropriate. 11"

Like section 810 of ANILCA, NEPA does not prohibit all undertakings significantly affecting the environment, but establishes a procedural framework in accordance with which significant environmental impacts and appropriate alternatives are to be considered. See 42 U.S.C. §§ 4332(C) & (E). Although the procedural component of the NEPA looms large, NEPA establishes "'significant substantive goals for the Nation. '" 12" Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 62 L. Ed. 2d 433, 100 S. Ct. 497 (1980) (per curiam) (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978)).

Moreover, as with section 810 of ANILCA, compliance with NEPA can be obtained "through the simple means of an order to the responsible federal official to comply," Amoco, 107 S. Ct. at 1403 n.8. And, as with section 810, there is no clear indication in NEPA that "Congress intended to deny federal courts their traditional equitable discretion," id. at 1403. 13" The First Circuit recognized in Watt that the balance of harms must be considered even in the face of a likely NEPA violation; that is, that a NEPA violation per se does not warrant an injunction. Amoco in turn appears to preclude preliminary injunctive relief predicated on a likely NEPA violation 14" unaccompanied by a showing of irreparable environmental injury. Of course, where there is a likelihood of irreparable environmental injury, it is still necessary to balance the competing harms, weigh the public interest, and consider the likelihood of success on the merits before determining the appropriateness of preliminary injunctive relief.

Under Amoco and Watt it now appears that:

1. all criteria for determining the appropriateness of extraordinary equitable relief, see Bellotti, supra, are to be weighed by the court, unless NEPA evinces a clear congressional intent to foreclose such discretion;

2. the finding of a likely violation of NEPA procedure, without more, raises no presumption of irreparable injury, nor does it diminish the need to determine the likelihood of irreparable environmental harm in the absence of preliminary injunctive relief;

(a) where irreparable environmental harm is sufficiently likely, the court shall consider the remaining criteria for preliminary injunctive relief; 15" or

(b) if no irreparable environmental harm is likely to result from the activity sought to be enjoined, the court should conclude, see Bellotti, supra at 1009 ("a plaintiff must satisfy four criteria in order to obtain a preliminary injunction"), that no preliminary injunctive relief may issue, see also Amoco, 107 S. Ct. at 1403.

There having been no attempt to demonstrate that NEPA evinces any congressional intent to foreclose exercise by the courts of their traditional equitable discretion, and the court being unable to discern such an intendment from the statute, the court turns to a consideration of the criteria for preliminary injunctive relief.

A. Likelihood of Irreparable Environmental Injury

Plaintiffs allege that two activities would cause irreparable injury: (1) construction of the causeway, and (2) dredging of the channel and the port terminal site. Once these habitats have been disturbed, the plaintiffs contend, "the damage cannot realistically be undone." MDOT concedes that construction of the causeway, which MDOT represents will take at least three months, and dredging of the pier area and the channel, which is already 60% completed, are the only phases of the project which could be accomplished pending a decision on the merits of plaintiffs' claims for permanent injunctive relief and declaratory relief. 16" In reliance upon these MDOT representations for present purposes, the court turns its attention to a consideration of the likelihood that irreparable environmental harm would result from construction of the causeway and dredging of the port terminal site.

The construction of the causeway involves filling 3.7 acres of intertidal wetlands with 15,000 cubic yards of material, see FEIS, at 4-8, 4-31, 4-43, 4-80, which would entail elimination of habitat used by shorebirds during seasonal migrations, FEIS, at 4-8; some temporary suspension of fill material during the six hours of daily contact with tidal water, FEIS, at 4-31; elimination of tidal exchange over gravel bar, which is a minimal impact due to the normally low volume tidal exchange occurring over the bar in its natural state, FEIS, at 4-39 - 4-42; temporary destruction of substrate material for algae and benthic fauna, which will recolonize on the armor stone protection for the causeway, although in a reduced area, FEIS, at 4-47, 4-49; and possible loss of some soft-shell clam habitat, for which MDOT is constructing replacement habitat, FEIS, at 4-52; Corps permit, at 4.

The plaintiffs contend that these alterations constitute irreparable environmental injury. On the other hand, MDOT represents that the causeway can be removed and that the affected intertidal habitat can be restored if the Sears Island project is enjoined following a determination on the merits. See Affidavit of W. Reid, Jr., at para. 36 (Aug. 29, 1988) (stating, inter alia, that the causeway "could be removed . . . and the original substrate type, elevation, and grade be reestablished.") 17" At the hearing, the plaintiffs responded to evidence and representations that environmental damage could be undone in this manner by noting that the area affected by the proposed causeway construction contains resources which are of at least regional and state significance, 18" and that proceeding with construction of the causeway pending a final decision on the merits would constitute foolhardy public policy. 19"

In the absence of any evidence that removal of the causeway is either impracticable or that it would not substantially restore the environmental status quo, the court concludes that the plaintiffs have failed to make a showing of irreparable environmental injury. See Amoco, 107 S. Ct. at 1404. There has been no challenge to the MDOT representation, upon which the court relies in its disposition of the motion for preliminary injunctive relief, that the removal of the causeway and the restoration of the affected habitat, with all their attendant costs, are nonetheless practicable. 20"

In contrast to the fill work required in the construction of the causeway, dredging of the pier area and channel may result in somewhat more permanent environmental alteration. The environmental impacts resulting from the proposed dredging activity would include increased turbidity of the water during construction, FEIS, at 4-27, clearly an impermanent impact; removal of habitat of certain aquatic organisms, which are likely to recolonize the affected habitat, at least in part, once dredging has been completed, FEIS, at 4-42, 4-43, 4-47, 4-49 - 4-56; and impacts on marine life and water quality resulting from disposal of the dredged material at the approved disposal site of Rockland, FEIS, at 4-61 - 4-68. In addition, the FEIS and the construction permits contain environmental impact minimization procedures and conditions, as well as mitigation requirements. See Appendices "B" & "C".

The proposed dredging would be a resumption of the dredging activity which was suspended in consequence of the First Circuit decision that the earlier Corps permits were invalid. See 769 F.2d at 882. MDOT submits uncontroverted evidence that the area affected by the earlier dredging activity at the Sears Island site already has experienced recolonization by benthic fauna. See Affidavit of W. Reid, Jr., at para. 46 (Aug. 29, 1988). Additionally, the Corps permit itself prohibits dredging between July 1 and October 31, as a means of protecting the habitat of molting lobster. See Corps permit, at 4-B.

A resumption of dredging activity may effect some alteration of the ecosystem of Sears Island and its nearby environs. However, environmental change is not necessarily tantamount to injury, much less irreparable environmental injury. See, e.g., Appendices B & C infra. In consideration of the seasonal restrictions imposed by the Corps on dredging activity, the minimal or impermanent nature of all of the environmental impacts, the demonstrated biologic recolonization of the same dredging area, the minimization requirements and the fact that all environmental impacts were considered by the Corps before permitting resumption of the dredging, the court concludes that the plaintiffs have made no showing of any likelihood of irreparable environmental injury from the proposed dredging.

B. Balance of Harms

The defendants have shown that the delays occasioned by a preliminary injunction would entail substantial additional project costs, on a monthly basis (approximately $ 81,000), even "assuming [that] all projects fell into place without significant scheduling problems," Affidavit of R. Hunter, at para. 11 (Aug. 29, 1988). Where, as here, it has not been shown that irreparable environmental injury is likely to result, and the plaintiffs are financially unable to post security, 21" see Fed. R. Civ. P. 65(c), the substantial direct costs of delaying the project weigh heavily against plaintiffs and in favor of defendants.

Defendants assert that there are only two dipper dredges on the East Coast of the type required for this project. Although the Corps permit prohibits dredging prior to October 31, MDOT represents that it must make a commitment by October 1 in order to be assured the availability of a suitable dredge. Moreover, whatever increased costs would be occasioned MDOT by delays due to the unavailability of a suitable dipper dredge would likely go uncompensated were defendants to succeed on the merits.

The MDOT claim of lost business opportunities occasioned by project delay is somewhat more problematic, at least as concerns its quantification. Defendants cite Half Moon Bay Fishermans' Marketing Association v. Carlucci, 847 F.2d 1389 (9th Cir. 1988), in which the Ninth Circuit found that the economic loss resulting from inability to accommodate a super containership by a specific date outweighed the environmental harm of dredging an adequate channel for the ship, even though the ship had not firmly committed to using the port if it were to be suitably dredged in a timely manner. See id. at 1397-98. The anticipated use of Sears Island by interested industrial customers and tenants, as well as shippers, is considerably more conjectural, there being no evidence of any firm commitment to construct any industrial facility, and no specific port call date to which to relate the claimed costs of further project delays. Nevertheless, unless the court is to disregard, as unreliable, all of the evidence of likely future industrial development and port usage projected by consultants, MDOT, and various other agencies, it must be recognized that lost business opportunities, as well as the far less speculative loss of construction jobs and wages, will be a concomitant of further project delays, although the amount of such economic loss is impossible to forecast on the present record.

The injury to which plaintiffs point as a counterbalance to the economic harm to MDOT from further delay of the project is that plaintiffs would be unable to navigate their sailboats at high tide over the gravel bar along which the causeway would be constructed. The present record reveals sketchy, nonspecific evidence that plaintiff O'Neal has "frequently sailed . . . in the area around Sears Island . . . [and has] had occasion at high tide to sail across the bar between Stockton Harbor and Long Cove where the causeway is proposed to be constructed. " 22" See Affidavit of W. O'Neal, at para. 3. The record further supports the related finding that lobster fishermen in the area avoid the bar even at high tide due to the danger of running aground on the bar. See Coast Guard Record of Decision, at 5.

C. The Public Interest

As the defendants are federal and state agencies, the "public interest" inquiry relates closely to the "balance of harms." As the Supreme Court has observed in a similar context,

where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.

456 U.S. at 312-13 (quoting Yakus v. United States, 321 U.S. 414, 440, 88 L. Ed. 834, 64 S. Ct. 660 (1944)); see also Amoco, 107 S. Ct. at 1404. Given plaintiffs' inability to post meaningful security, the absence of any likelihood of irreparable injury to any plaintiff or of irreparable permanent injury to the environment they seek to protect, and, therefore, the absence of any significant basis for delaying a project which offers substantial local and state-wide economic benefits, the court finds that the public interest weighs heavily against preliminary injunctive relief. 23"

D. Likelihood of Success on the Merits24

1. Standing

The defendants forge a double-edged attack on plaintiffs' standing. First, the defendants contend that the plaintiffs fail the test enunciated in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). Second, the defendants argue more narrowly that the plaintiffs have no private right of action, under section 9 of the Rivers and Harbors Appropriations Act, 33 U.S.C. § 401 [RHA], to challenge the causeway permit issued by the Coast Guard.

In Morton, Sierra Club brought suit against the United States Forest Service for its actions in promoting a recreational development known as the Mineral King project. Like the present plaintiffs, Sierra Club had sought review under section 10 of the APA, 5 U.S.C. § 702, which affords a right of judicial review to "[a] person suffering legal wrong because of agency action within the meaning of the relevant statute. . . ." 5 U.S.C. § 702. Morton held that the Sierra Club lacked standing. Although Sierra Club had alleged harm to cognizable interests - aesthetic and environmental well-being - it lacked standing because it failed to allege that it or its members would be affected in any of their activities by the project. Morton, 405 U.S. at 734-35. "Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents." Id. at 735 (footnote omitted).

The amended complaint alleges that "members of the Sierra Club use and enjoy the natural and recreational resources of the Upper Penobscot Bay and Searsport area, and their interests in these resources are being, and will be, adversely affected by the defendants' unlawful actions." Amended Complaint, at para. 7 (emphasis added). The individual plaintiffs in turn assert aesthetic and recreational interests in the Sears Island area, see Amended Complaint, at paras. 8, 9; Affidavit of W. O'Neal (Sept. 8, 1988); Affidavit of P. Tenney (Sept. 8, 1988). 25" Specifically, plaintiff O'Neal attests that he has "frequently sailed on the waters of the northern Penobscot Bay in the area around Sears Island," has "had occasion at high tide to sail across the bar between Stockton Harbor and Long Cove where the causeway is proposed to be constructed," and that the causeway "will preclude [him] from navigating directly form his mooring in Stockton Harbor to Long Cove and Searsport." Affidavit of W. O'Neal, at paras. 3, 4. Plaintiff Tenney states that "development of the island will interfere with the natural beauty of the island which I have enjoyed for many years," that she has "boated around the island many times," and that she is "concerned about the possible change in the undisturbed mood of the Upper Penobscot Bay and interference with sailing activities caused by the development of Sears Island." Affidavit of P. Tenney, at paras. 2-4.

The defendants contend that plaintiffs' allegations are too general and that the amended complaint should be dismissed for lack of standing. The defendants cite to Wilderness Society v. Griles, 262 U.S. App. D.C. 277, 824 F.2d 4 (D.C. Cir. 1987), an action challenging a Bureau of Land Management decision to increase the acreage of federal land to be transferred from federal to state or native American ownership under the Alaska Native Claims Settlement Act and the Alaska Statehood Act. There the court held that Wilderness Society and Sierra Club members had insufficient standing to challenge a motion for summary judgment. See id. at 16-17. Although it was clear that additional federal lands were to be transferred, the plaintiffs had not identified any specific lands they wished to use which would be subject to the challenged transfer policy. See id. at 12. "In order to show sufficient likelihood of injury, a plaintiff must adduce facts that reveal how his planned behavior will be injured by the challenged governmental action and third-party response." Id. at 15.

The present record may be similarly deficient. Although the two individual plaintiffs allege in general terms some past usage and enjoyment of Sears Island and its environs, there is no allegation that any plaintiff plans or intends to do so in the future. Moreover, there is no specific factual allegation or evidence as to the plaintiffs' past usage of the Sears Island area, such as would enable the court to make the essential determination "whether the plaintiff has . . . shown that his intended behavior will be injured as a direct or indirect result of the challenged governmental action," id. at 12.

Griles noted the difference, delineated in United States v. SCRAP, 412 U.S. 669, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973), between the showing of injury required to resist a motion to dismiss, as distinguished from a motion for summary judgment, on standing grounds. In SCRAP, the plaintiffs challenged railroad rate increases, alleging that the rate increases would result in decreased use of non-recycled raw materials and increased destruction of virgin timber, extraction of non-renewable resources, and disposal of recyclable materials, which in turn would cause injury to the plaintiffs because of higher consumer costs and lower enjoyment of their intended use of the forests, rivers, streams, mountains and other natural resources. See 412 U.S. at 680-81 n. 9. Despite the railroads' contention that the plaintiff's could never prove causation and that their allegations were a ploy to avoid the need to show some injury in fact, the Court held that the plaintiffs' allegations were sufficient to withstand a motion to dismiss.

Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected. If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact.

Id. at 688-89 (footnotes omitted). 26"

The Griles court harmonized the different results reached in SCRAP and Morton.

In SCRAP, the Court found that a complaint should not have been dismissed for lack of standing even though plaintiff had alleged injury only due to its members' use and enjoyment of natural resources "surrounding the Washington Metropolitan area." 412 U.S. at 678, 93 S. Ct. at 2411. The Court held that despite its lack of specificity, this allegation was enough to survive a motion to dismiss. The main thrust of the SCRAP opinion, however, was to distinguish Sierra Club, in which plaintiff had alleged a truly generalized interest in conservation and the environment. Plaintiff's allegation in SCRAP that its members actually used and enjoyed the natural resources in question brought it within the personal injury circumscription that the Court had delineated in Sierra Club. But in a critical footnote, the SCRAP court acknowledged that on a motion for summary judgment plaintiff might have had to show injury with greater specificity, i.e., to name the specific forests that it uses and enjoys that would be affected by the challenged action. Id. at 689-90 n.15, 93 S. Ct. at 2417 n.15. And the Court has since reiterated that SCRAP indeed might have come out differently had it been decided on a motion for summary judgment. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 45 n.25, 96 S. Ct. 1917, 1927 n.25, 48 L. Ed. 2d 450 (1976). In sum, while a motion to dismiss may be decided on the pleadings alone, construed liberally in favor of the plaintiff, a motion for summary judgment by definition entails an opportunity for a supplementation of the record, and accordingly a greater showing is demanded of the plaintiff.

824 F.2d at 16.

Under Federal Rule of Civil Procedure 12(b), if "matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b). At this juncture, looking only to the pleadings, the court must accept, as true, plaintiffs' allegations that they use and enjoy the natural and recreational resources in the vicinity of Sears Island and that plaintiffs' interests in those resources will be adversely affected by defendants' actions. Under Morton - SCRAP - Griles, these allegations are sufficient to resist defendants' motion to dismiss. The court is not satisfied that all parties have been afforded a reasonable opportunity to present all material pertinent to a motion for summary judgment on the ground of lack of standing.

Accordingly, plaintiffs' affidavits are excluded pending development of the record and the filing of an appropriate motion for summary judgment pursuant to Local Rule 19(b) (D. Me. 1987). See Griles, 824 F.2d at 16-17. A scheduling order shall issue as soon as practicable, outlining pertinent issues relating to further litigation of the merits of all claims.

Dated at Bangor, Maine this 30th day of September, 1988.

APPENDIX A (SEE ILLUSTRATION IN ORIGINAL)

APPENDIX B

CORPS PERMIT RESTRICTIONS AND MITIGATION REQUIREMENTS

The Corps permit contains the following special conditions:

1. Periodic maintenance dredging initially will be allowed for ten years, as required, upon 60 days notice to the Corps and receipt of written authorization. Dredged material must be disposed at an upland site; disposal in ocean waters or wetlands requires a separate permit.

2. Disposal of dredged material must be supervised by the Corps.

3. Disposal of dredged material at the Rockland site must occur at a specified buoy, and the scow must come to a complete halt prior to discharge.

4. The Coast Guard Marine Safety Officer must be notified prior to the start of the project.

5. Compliance with OSHA safety standards is mandated.

6. All wetlands disturbed during construction must be restored to their approximate original elevation and condition, and measures to protect wetlands and waterways from soil erosion runoff are to be implemented during construction.

7. Adequate sedimentation and erosion control devices are required during construction.

8. No temporary fill may be placed in water or wetlands, unless authorized. Any temporary fill which may be authorized shall be placed on geotextile fabric at the existing wetland grade and shall be completely removed and properly disposed of upon completion of the project. The temporary fill areas shall be restored.

9. A copy of the permit shall be present at the worksite.

10. Construction of 4.14 acres of replacement soft-shell clam habitat is required.

11. There must be construction of facilities capable of preventing the discharge of sediment, grease and oil associated with storm drainage into any waterway or wetland.

12. A five-year environmental study must be conducted on the environmental effects of the causeway.

13. No dredging is permitted from July 1 to October 31, in order to protect molting lobster and minimize other environmental impacts.

14. Disposal of dredged materials shall be avoided during the two-hour period of maximum flood-tide currents, and only one scow may discharge material at a time.

APPENDIX C

DREDGING IMPACTS

1. The initial two-berth phase of the project will require dredging of 45 acres of deepwater habitat.

2. Causeway construction impacts 1.6 acres of freshwater wetlands (which has already occurred), described as scrub-shrub wetland which previously may have provided habitat for shorebirds, waders, and waterfowl, Corps Compliance Review, at 4; it will also disturb 3.7 acres of intertidal habitat, which is soft-shell clam habitat, but see Appendix B, at para. 10.

3. Disposal of dredged material at the Rockland site will result in a dispersal 1,700 meters wide. The dredged material, consisting of glacial till, sand, silt and clay, was tested and found to be uncontaminated. Therefore, there will be no release of contaminants upon disposal. The water is 225 feet deep at the disposal site, and there is no stratification in the depth profile. The water at the disposal site is characterized by low turbulence and dispersion. Corps Compliance Review, at 5.

4. The Corps concludes that "[t]he temporary impacts from dredging and disposal were found to dissipate quickly," Corps ROD, at 26, which includes temporary increases in turbidity, Corps Compliance Review, at 3.

5. The Corps concludes that the tidal exchange affected by the causeway is 1-3% of the total tidal exchange between Long Cove and Stockton Harbor. Thus, any changes in the chemical and physical characteristics of the area will be negligible. Corps ROD, at 27.

The FEIS contains the following additional specifics regarding dredging impacts:

1. While dredging is taking place, the amount of fine sediment in the water will increase noticeably in the vicinity of the scoop. However, the spoil material will be relatively cohesive and will settle quickly, thus minimizing dispersal. Although re-suspension of bottoms materials may increase nutrient concentrations, the increase will be slight. FEIS, at 4-27 - 4-28.

2. Based on chemical analysis of the dredged material, no significant release of toxic organic compounds, pesticides or heavy metals is anticipated. FEIS, at 4-29.

3. The greatest concern during disposal of dredging spoils is turbidity. However, suspended sediment concentrations are likely to be near background levels within two hours of disposal. FEIS, at 4-30.

4. Impacts from placing fill material for the causeway will be minimized by using granular fill material containing very few suspendable fines and by placing filter fabric and protective armor stone. The filled material will not be exposed to water more than 50% of the time. FEIS, at 4-31.

5. During dredging and filling, the potential impacts on aquatic organisms are: (1) habitat removal; (2) changes in sediment type; (3) increased turbidity; (4) chemical contamination; (5) oxygen reduction; and (6) burial by suspended sediments.

6. Turbidity affects phytoplankton production, which can decrease primary productivity in the vicinity of dredging, but the prohibition of dredging during the peak period of phytoplankton productivity will minimize this impact. Impacts on zooplankton, whose feeding apparatus can clog during periods of high turbidity, will be minimized as well by the seasonal dredging restrictions. FEIS, at 4-46.

7. The benthic fauna which will lose habitat include blue mussels, periwinkle snails, and barnacles. FEIS, at 4-48.

8. The rock relief preferred by lobsters is virtually nonexistent around the Sears Island project site. The prime lobster areas are located south of the project site, and thus dredging impacts on lobster will be minimal. The prohibition against dredging between July 1 and October 31 further minimizes this impact. FEIS, at 4-53.

9. Finfish species will be temporarily disturbed and displaced during dredging, but will return. Suspended sediments can reduce fish egg hatching in the immediate vicinity. FEIS, at 4-53 - 4-54.

10. The nearest seal haulout ledge is one mile from the Sears Island site, too far away to be affected significantly. The lowest seal counts occur from October to May, thus the dredging impacts on seals will be reduced. FEIS, at 4-55.

11. Upland, near-shore and open-water disposal sites were considered. The upland alternative would be costly, would require a large amount of land, and the spoils would be of low utility as fill material because of the water content. Coastal disposal was rejected because costly dewatering of the materials would be required.

1. Other industrial development proposals for Sears Island included a nuclear-powered electricity generating plant, a coal-fired power plant, a petroleum refinery, and an aluminum reduction plant. See Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir. 1985).

2. The final EIS [FEIS] included the 50 acre estimate for the terminal. However, during the five-month interval between the FHWA approval of the FEIS and the issuance of the Corps permit, MDOT consultants revised the acreage requirements of the ship loading and unloading facilities to 124 acres at full buildout. The estimates for a two-berth and a four-berth terminal are 68 and 100 acres, respectively. See Letter from Olko Engineering, Plaintiffs' Appendix, at 131.

3. The court noted that, had the permit application been for a causeway, the Coast Guard would have had to consider whether the causeway crossed an intrastate or interstate waterway, whether congressional or state approval was necessary, and whether such approval existed. By treating the causeway as a bridge, the Coast Guard avoided answering those questions. 779 F.2d at 783.

4. Moreover, the First Circuit saw "no need . . . to make any holdings about what would have been required had the Coast Guard treated the structure as a causeway" or to express an opinion "as to whether the consent of Congress was required for the approval of causeway construction and whether the Department of Transportation Act of 1966 did or did not provide the necessary approval." 779 F.2d at 784.

5. Only Normandeau Associates and Economic Research Associates are listed in the EIS Table of Preparers. However, T. Y. Lin International/Hunter-Ballew Associates, Olko Engineering and Booz-Allen and Hamilton, Inc. were also hired by MDOT and provided reports which were used in preparing the EIS, including reports on suggested designs for the Sears Island and Mack Point terminals.

6. EPA followed up the meeting with written comments to FHWA on the preliminary DEIS. The letter noted EPA's view that "the decision by FHWA and Maine DOT that there are no reasonable alternatives to the original proposal and that the EIS will address only the Sears Island site in detail is not consistent with the Council on Environmental Quality's regulations. . . and cannot be substantiated by . . . the record." Letter from Elizabeth A. Higgins to William Richardson (May 30, 1988), at 1. EPA expressed its fundamental disagreement "with the approach of evaluating only the secondary growth likely to occur as a result of the cargo terminal while not evaluating potential development due to the newly created access to the island." Id. at 5.

7. MDOT identified the following necessary steps in analyzing the Mack Point alternatives: Advise consultants that they should begin all planning necessary to revise the E.I.S., and particularly instruct ERA to initiate an analysis of secondary impacts for Mack Point. Aside from this they would be advised that the general basis for revision would be existing data and information, including that which is currently being developed by the team. It will be necessary to do some rescoping with the Corps and perhaps other permitting and funding agencies to insure that the concept above is acceptable i.e. use existing and available data and information for the most part. We would restructure and strengthen Section I (needs) as currently planned. Section II would be totally different, but simplified, and probably conclude by eliminating all alternatives except for two sites in Searsport. The preferred site would continue to be identified here. Section III should be revised and simplified now by compiling most of the highly technical and/or scientific data into a separate technical backup document. This should be done in any event. Section IV would be overhauled by bringing in most of the comparative data related to Mack Point-Sears Island into the section. This would essentially be totally redone and provide all the detailed analysis clearly supporting the preferred alternative also identified in Section II. Mitigation would probably be expanded to include those measures adaptable to Mack Point as well as a full evaluation of secondary impacts. State of Maine Inter-Departmental Memorandum by David A. Ober (Dec. 17, 1986).

9. Under Corps regulations, "the initial decision [is] made by the district engineer; objections by other federal agencies [may] lead to successive reviews by the division engineer, the chief of engineers, and the Assistant Secretary of the Army." Sierra Club v. United States Corps of Engineers, 701 F.2d 1011, 1021 (2d Cir. 1983). See 33 C.F.R. § 325.8.

10. The hearing on the motion for a preliminary injunction was originally scheduled for August 18, 1988. The defendants, without objection by plaintiffs, moved for a continuance, stating that no foreseeable harm would occur at least through September 11, 1988. In aid of its jurisdiction, the court stated construction of the project pending a decision on the motion for preliminary injunction. In any event, no dredging can take place until October 31, 1988, due to a special restriction in the Corps permit. Corps permit, at 4-B.

11. Justices Stevens and Scalia, concurring in the judgment, were of the view that it was unnecessary to decide whether the Ninth Circuit had applied the proper standard for issuing a preliminary injunction because the Court had held that section 810 did not apply to the OCS. See 107 S. Ct. at 1409.

12. The substantive goals of the NEPA are set forth in 42 U.S.C. § 4331: (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may -- (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

13. Amoco points to the Endangered Species Act as an example of a statute which forecloses the traditional equitable discretion of the federal courts. See 107 S. Ct. at 1403 n. 9 (citing TVA v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978)).

14. The preliminary injunctive relief claims under § 404 of the Clean Water Act and § 9 of the Rivers and Harbors Act - the other statutes at issue in this case - require a showing of irreparable environmental harm even under the First Circuit's analysis in Watt.

15. As the Supreme Court stated in Amoco, "environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." 107 S. Ct. at 1404.

16. MDOT further represents that, as distinguished from dredging, the filling of 25.1 acres of marine habitat in connection with the construction of the pier facilities will not be commenced until after the causeway has been completed.

17. Although the court does not consider the affidavits submitted by the parties as they pertain to the defendants' motion to dismiss, see Fed. R. Civ. P. 12(b), "submission of affidavits in support of or opposition to a preliminary injunction is both customary and appropriate." Bracco v. Lackner, 462 F. Supp. 436, 442 n.3 (N.D. Cal. 1978) (citing C. Wright and A. Miller, 11 Federal Practice and Procedure § 2949).

18. The intertidal habitat at the gravel bar along which the causeway to Sears Island would be constructed has been classified as borderline Class A - Class B habitat under the Penobscot Bay Conservation Plan [PBCP] prepared by the Maine Department of Inland Fisheries and Wildlife (December 1986). See Plaintiffs' Appendix, 163. According to the PBCP, Class A habitat should not be degraded through alteration or development of intertidal or submerged lands and should not experience any change in the type, or increase in the intensity, of existing uses. See BPCP, at 24. Class B habitat should be maintained in sufficient quality and quantity to support all indigenous wildlife species and should not experience change in existing use, although an increase in the intensity of use is approved. See PBCP, at 25.

19. The public policy considerations are more appropriately addressed to Congress, which has not determined that risk to the environment warrants curtailment of the traditional equitable discretion of the federal courts in such matters. Compare note 13 supra. See also Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 1402-04, 94 L. Ed. 2d 542 (1987).

20. The court notes that the reparability of any environmental alterations may pertain as well to the supervening concern of the equity court that extraordinary injunctive relief is to be withheld where there is an adequate remedy at law. See Amoco, 107 S. Ct. at 1402-03.

21. In determining whether to require a bond, the court must consider the possible loss to the enjoined party, the hardship that a bond requirement would impose on the movant, and the impact that a bond requirement would have on the enforcement of a right. See Crowley v. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers, 679 F.2d 978, 1000 (1st Cir. 1982), rev'd on other grounds, 467 U.S. 526, 81 L. Ed. 2d 457, 104 S. Ct. 2557 (1984). Although the present finding of no irreparable injury obviates consideration of the bond requirement in this case, the court notes that plaintiffs' financial inability to post security would increase the risk of loss to defendant MDOT, which is appropriately considered in weighing the competing harms.

22. The individual plaintiffs claim injury to their ability to sail around Sears Island, see Affidavit of W. O'Neal, at para. 4 (Sept. 8, 1988), and to the aesthetic appeal of views of Sears Island, the nesting habits of herons on Islesboro due to increased shipping traffic, and injury to the "undisturbed mood" of the Upper Penobscot Bay, see Affidavit of P. Tenney, at paras. 2-4 (Sept. 8, 1988). Only the alleged injury to the plaintiffs' boating interest is threatened by construction work occasioned by the present denial of preliminary injunctive relief.

23. Plaintiff point to a countervailing public interest in conforming official conduct with NEPA procedures. But the Supreme Court, in Amoco, severely curtailed the public-interest weight to be accorded such considerations in cases involving violations of the procedures of such statutes as ANILCA and NEPA, unless accompanied by a sufficient showing of irreparable environmental harm. See Amoco, 107 S. Ct. at 1404.

24. Due to time constraints, and the fact that plaintiffs have been unable to satisfy the other criteria for preliminary injunctive relief, the court does not now consider the merits of plaintiffs' claims, except as to the issue of standing.

25. Although the amended complaint does not allege that the two individual plaintiffs are Sierra Club members, the original complaint and the affidavits of the individual plaintiffs do so state.

26. In response to the railroads' objection that the allegations were too imprecise because "no specific 'forest' was named," the Court noted in SCRAP that the railroads could have moved for a more definite statement under Federal Rule of Civil Procedure 12(e) or employed "normal discovery devices." 412 U.S. at 689-90 n. 15.

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