DocketNumber: No. 86 Civ. 3788 (EW)
Citation Numbers: 662 F. Supp. 179
Judges: Weinfeld
Filed Date: 6/11/1987
Status: Precedential
Modified Date: 11/26/2022
OPINION
Defendants Eberhard and Ingrid Thier-mann own a parcel of land on the bank of the Hudson River in the town of Grand View-on-Hudson, New York. Since the early 1970’s, they have sought permits from defendant United States Army Corps of Engineers (the Corps) that would authorize them to place fill in the river to enlarge their property or protect it from erosion and thereby enable them to build a home. The result has been over a decade of litigation between the Thiemanns and a group of neighbors and environmentalists who oppose placing fill in the river.
The instant suit stems from the Corps’ decision in April 1986 to issue the Thier-manns a permit authorizing them to place “riprap” — large pieces of rock — at the mean high water line along their property to protect it from erosion. The Corps’ action was taken pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344, and § 10 of the Rivers and Harbors Appropria
7. History of the Litigation
Plaintiffs argue for invalidation of the riprap permit in part because of alleged illegal filling of the river prior to its issuance. A brief history of the property and the parties’ dispute is thus in order. The Thiermanns bought the property in 1970, and under a permit issued by the Corps on October 29, 1973, began adding fill to the river to extend their property enough to meet the lot size required for a house. Neighbors and environmentalists commenced an action challenging the permit and obtained a temporary restraining order against further filling on May 22, 1974, and a preliminary injunction was granted by Judge Charles Stewart on July 3, 1974.
Since that time, additional fill has fallen into the river, as indicated by the water-ward movement of the mean high water line (MHWL) on the Thiermanns’ property. The location of the MHWL has been recorded in three different surveys, indicating three different lines: the Boswell line, which shows the location of the MHWL as of 1967, the Youngblood line, which shows the MHWL in 1982, and the Avener line, which shows the MHWL as of 1985.
According to the Corps and the Thier-manns, the change from the Boswell to the Youngblood line was due to filling by the Thiermanns pursuant to, and prior to the invalidation of, the 1973 permit. The Thier-manns were never asked to remove the fill. As regards the change from the Young-blood to the Avener line, the Corps and the Thiermanns state that it resulted from a violent storm that occurred on March 28-29, 1984.
The Thiermanns filed an application with the Corps on May 17,1985, seeking permission for the construction of “140 feet of concrete bulkhead and placement of approximately 180 cubic yards of material over 2300 square feet of intertidal area.”
Nationwide permits, in contrast to individual permits, are promulgated by the Corps for activities that can be authorized generally and do not require approval on a case-by-case basis.
In sum, when the Thiermanns applied in May 1985 for a permit to construct a concrete bulkhead, the Corps processed the application as submitted for an individual permit. That process entailed an environmental assessment, an assessment under the Clean Water Act guidelines, notice and comment, and a public hearing. Ultimately, however, the Corps rejected the Thier-manns' proposed project,
II. Discussion
Plaintiffs have not challenged the Corps’ conclusion that the riprap project falls within the nationwide permit for bank stabilization. Instead, they argue that the Thiermanns’ permit is invalid because: (1) the Corps has irrationally dismissed the contention that the existing MHWL is the result of illegal fill
A. Scope of Review.—Judicial review of agency action is with few exceptions limited to a review of the administrative record.
The standard for review of the Corps’ decision to issue the riprap permit is set forth in the Administrative Procedure Act, at 5 U.S.C. § 706(2)(A), which provides that informal adjudicative actions will be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
[A]n agency’s action is held to be arbitrary and capricious when it relies on factors Congress did not want considered, or utterly fails to analyze an important aspect of the problem, or offers an explanation contrary to the evidence before it, or its explanation — as is apt here — is so implausible that it cannot be ascribed to differing views or agency expertise.... While a reviewing court may not supply the basis for the agency’s decision — lest it interfere with matters entrusted to the executive branch— it will uphold a decision of less than ideal clarity if the “path [the agency] followed” can be discerned.21
This Court’s review is thus limited to determining, on the basis of the administrative record, whether the Corps’ decision is rational — the result of reasoned decisionmak-ing. The Corps’ decision may not be reversed simply because those who oppose it, or even this Court, believe it is wrong.
B. Allegations of Illegal Filling. —As noted, plaintiffs argue that the Corps failed to consider whether the existing MHWL was the result of illegal filling by the Thiermanns. In fact, however, the administrative record demonstrates that the Corps did consider such allegations and concluded there is no illegal fill present on the property.
As noted above, this Court’s role is not to choose between competing analyses, but simply to determine whether the Corps’
First, plaintiffs challenge the Corps’ acceptance of the Youngblood line as an accurate reflection of the MHWL that resulted from filling of the river under the 1973 permit before it was invalidated. The Youngblood Survey, conducted in 1982, has been relied upon by the Village of Grand View-on-Hudson as setting a benchmark in disputes over illegal fill.
The remaining issue is whether the Avener line was created by illegal filling after the Youngblood survey. The Corps notes that although there was documented evidence of illegal filling during repairs to a pier in August 1983, village officials monitored the repairs and reported to the Corps that as of August 24,1983, all fill had been removed back to the Youngblood line.
Plaintiffs assert that the storm hypotheses is irrational given that the Avener line consists of rock upon rock and that the position of rocks upland on the Thiermann property would have made it difficult for them to roll into the river. These arguments, however, fail to establish irrationality, given that erosion could change the topography of the property, and that rocks, having rolled off a river bank, might come to rest on top of each other. Plaintiffs also
Plaintiffs also allege that the Corps has not made the “necessary” finding that the fill placed pursuant to the 1973 permit and prior to its invalidation is legal, and that the Corps has failed to assess the environmental impact of that fill. The administrative record, however, indicates that the Corps has chosen to allow the pre-1974 filling to remain,
C. Consideration of Factors and Alternatives. — Plaintiffs allege that in granting the April 1986 permit, the Corps failed to consider as relevant factors: (1) the Thiermanns’ alleged unlawful filling of the river over the previous 12 years; (2) the full administrative record of the application for the 1986 permit, including the administrative records of all prior applications of the Thiermanns and the record of the 1974 action before this Court; (3) the public interest in securing obedience to the laws of the United States and to judgments of United States Courts; and (4) the precedent established by rewarding flagrant and repeated violations of such laws and judgments.
Plaintiffs’ allegation that the Corps failed to consider these factors is completely unwarranted, given the Corps’ analysis discussed above. As the Corps noted in its Statement of Findings of Fact on the Thier-manns’ application:
The means by which existing fill entered the River has been the subject of considerable discussion by local residents during the application process. Although this office has no evidence to show that the applicant currently has illegal fill on their [sic] property, however, many citizens of Grand View-on Hudson believe that this is the case and believe that it is a viable reason for permit denial. All available pictures and testimony produced since filling was proposed in 1971 have been examined.34
Simply put, the Corp. has considered all available evidence since 1971, identified the issue raised by plaintiffs in its statement of findings, and concluded that there was no illegal fill on the property.
Plaintiffs further allege that the Corps did not “duly and adequately consider alternatives to the action authorized by the 1986 Permit,” including the alternative of no action, the alternative of requiring the Thiermanns to restore the area of the river they had unlawfully filled, and the alternative of constructing a residence elsewhere on the Thiermann parcel.
D. Procedural Objections. — Plaintiffs also challenge the adequacy of the public notice given of the hearing on the Thiermanns’ application for a fill permit. The notice, dated August 17, 1985, of a hearing to be held September 18, 1985, is alleged to be substantially misleading and unlawful in that the description of work: (1) refers to “mean high water” not as “indicated by the 1985 Avener survey” but “as indicated on an earlier survey”; (2) the notice made no mention of the Thiermanns’ claim that the MHWL had moved due to the March 28-29,1984 storm; (3) the Corps did not indicate it was considering issuing a permit substantially different from that described in the notice; and (4) the Corps gave no indication that the permit it was considering issuing would be pursuant to the authority of Nationwide Permit No. 330.5(a)(13).
These objections are without merit for several reasons. First, the objection that the public was not of apprised of the storm issue is incorrect, given that the description of work in the public notice includes the statement that “the applicant states that ... material placed in 1974 settled into the river ... accelerated by natural forces of storm and weather.”
More importantly, however, all of the plaintiffs’ objections to the notice fail because the activity finally authorized by the Corps falls within Nationwide Permit No. 330.5(a)(13) and may be conducted by a private individual without any notice to the public or, for that matter, the Corps.
III. Conclusions
In granting permission to place riprap along the bank of the Hudson, the Corps denied the Thiermanns the permit they sought and instead authorized them to proceed in compliance with a nationwide per
Plaintiffs’ charge that the Corps has irrationally found there to be no illegal fill on the Thiermanns’ property fails in light of the Corps’ assessment of the available surveys and photographic evidence and the absence of any evidence of illegal filling during the time when the Avener line was created. Plaintiffs’ complaint regarding notice fails because the notice given was not inadequate, and because notice is, under the circumstances of this case, unnecessary, given that the project finally approved could have been initiated under a nationwide permit requiring no application. Finally, plaintiffs’ argument that the Corps has refused to consider relevant factors and alternative projects is belied by the administrative record.
Defendants’ motion for summary judgment is granted.
So Ordered.
. River Defense Committee v. Thierman, 380 F.Supp. 91 (S.D.N.Y.1974).
. River Defense Committee v. Thiermann, 74 Civ. 159 (CES) (S.D.N.Y. July 16, 1974), Administrative Record (AR) at 1471.
. All three lines are inscribed on a map in the administrative record at 477.
. Environmental Assessment for Application No. 85-404-YS, by Eberhard and Ingrid Thier-mann, at 1, AR at 23 (hereinafter Environmental Assessment). Although plaintiffs question what date the Avener Survey was performed, nothing in the Corps’ analysis turns on the correct date, since the Corps verified the survey as of September 18, 1985.
. Section 404(b)(1) of the Clean Water Act Guidelines Evaluation for Application Number 85-404-YS by Eberhard and Ingrid Thiermann, at 2-3, AR at 27-28 (hereinafter Clean Water Act Guidelines Evaluation).
. Statement of Findings for Application No. 85-404-YS by Eberhard and Ingrid Thiermann at 1, AR at 17 (hereinafter Statement of Findings).
. Id.
. Id. at 4-5, AR at 20-21.
. /¿ at 5-6, AR at 21-22.
. Compare 33 C.F.R. § 323.2(m) (defining individual permits) with 33 C.F.R. § 323.2(n) (defining nationwide permits).
. 33 C.F.R. § 330.5, 330.7; National Wildlife Federation v. Marsh, 721 F.2d 767, 772-73 & n. 7 (11th Cir.1983); Riverside Irrigation Dist. v. Stipo, 658 F.2d 762, 764 (10th Cir.1981).
. The Corps found that the Thiermanns’ proposal did not comply with section 404(b)(1) of the Clean Water Act. Clean Water Act Guidelines Evaluation at 6, AR at 31.
. Amended Complaint at para. 33(f). Paragraphs 33(a), (d) & (g) of the complaint contain allegations that assume illegal fill is present on the Thiermanns’ property.
. Amended Complaint at para. 33(b), (c).
. Amended Complaint at para. 33(e).
. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607-08, 84 L.Ed.2d 64 (1985); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
. Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 905 (5th Cir.1983).
. Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1052 (2d Cir.1985).
. United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941); Yaretsky v. Blum, 629 F.2d 817, 823 (2d Cir.1980), rev’d on other grounds, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); National Nutritional Foods Assoc. v. Mathews, 557 F.2d 325, 332-33 (2d Cir.1977).
. Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Nofelco Realty Corp. v. United States, 521 F.Supp. 458, 462 (S.D.N.Y.1981).
. 772 F.2d 1043, 1051 (2d Cir.1985).
. Id.; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
. Statement of Findings at 3; AR at 19.
. Amended Complaint at para. 33(f).
. Statement of Findings at 3, AR at 19.
. See Stop Work Order of August 23, 1983, AR at 549.
. Assuming arguendo that there was no rational basis for this conclusion, the plaintiffs would be estopped from raising this objection for failure to have raised it at the administrative level. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 554-55, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978).
. Guidelines Evaluation at 2, AR at 27; Memo-randa of Conversations with Village Officials, AR at 543-44; Stop Work Order of August 23, 1983, AR at 549.
Plaintiffs, arguing that illegal fill existed before the storm of March 28-29, 1984, have cited the letter from John Zammit of the Corps to the Thiermanns concerning a 1983 photograph that showed fill not present in earlier photos. AR at 562-64. Plaintiffs have ignored, however, the reply explaining that the photograph depicts fill removed as of August 24, 1983. AR at 546-47.
. See Statement of Findings at 2-3, AR at 27-28; Memo for the Record by Peter Tischbein, March 21, 1986 and attachments, AR at 230-32.
. Transcript of March 12, 1986 hearing before the Hon. Charles E. Stewart, D.J., AR at 46-228.
. See Clean Water Act Guidelines Evaluation at 3, AR at 28 (“[B]ecause there was no determination by the Corps that the public interest required removal of the fill, the Thiermanns were not directed to remove this fill.").
. Statement of Findings at 4, AR at 20 (‘‘[The National Marine Fisheries Service] commented that removal of existing fill was not necessary in light of potential fishery or water quality impacts.”); Minutes of Interagency Meeting to Discuss Eberhard Thiermann, Case No. 85-068, AR at 553 (Environmental Protection Agency and New York Fish & Wildlife Service agree that they did not see need for removal in light of "potential fishery or water quality impacts.’’).
. Amended Complaint at para. 33(a).
. Statement of Findings at 3, AR at 19.
. Amended Complaint at para. 33(c).
. See Clean Water Act Guidelines Evaluation at 5-8, AR at 30-33. Alternatives were also discussed in the Environmental Assessment of Nationwide Permit No. 330.5(a)(13), AR at 39.
. Public Notice No. 12342, Description of Work, AR at 497.
. The additional claim that the MHWL shown was west and shoreward of the Avener MHWL is also of no consequence. If the line in the notice were shoreward of the actual MHWL, the Thiermanns’ project would only appear to intrude further into the river than it actually does. The alleged imprecision in the sketch of the project was not fatal to the adequacy of the notice.
. National Wildlife Federation v. Marsh, 721 F.2d 767, 772-73 (11th Cir.1983); Riverside Irrigation District v. Stipo, 658 F.2d 762, 764 (10th Cir.1981). Although notice and comment and a hearing are provided for when a nationwide permit is promulgated, 33 C.F.R. § 330.4, activities under such a permit may be conducted without further notice, see 33 C.F.R. § 330.5(a).