Opposition — Save The Bay, Inc. v. United States Corps of Engineers

Supreme Court, U.S.

FILED

No. 80-171 sep 19 1980

In the Supreme Court of the Hoilbi sabres * COM

OCTOBER TERM, 1979

SAVE THE BAY, INC., PETITIONER

v.

UNITED STATES CORPS OF ENGINEERS,

THE UNITED STATES ARMY,

COLONEL DRAKE WILSON, AND

E.I. DUPONT DE NEMOURS AND COMPANY, INC.

IN PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

Dirk D. SNEL

NANCY B. FIRESTONE

Attorneys

Department of Justice

Washington, D.C. 20580

(202) 683-2217

|

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 80-171

SAVE THE BAY, INC., PETITIONER

Uv.

UNITED STATES CORPS OF ENGINEERS,

THE UNITED STATES ARMY,

COLONEL DRAKE WILSON, AND

E.I. DUPONT DE NEMOURS AND COMPANY, INC.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the Army Corps of Engineers rea-

sonably determined that the preparation of an en-

vironmental impact statement was not required when,

under Section 10 of the Rivers and Harbors Act and

I

II

Section 404 of the Clean Water Act, the Corps issued a

permit for the construction of a 2,200-foot outfall line

requiring the removal of 610 cubic yards of bay bottom

material.

2. Whether, after the State of Mississippi had issued

a valid ] ational Pollutant Discharge Elimination Sys-

tem permit authorizing the discharge of treated

effluent from a manufacturing facility into the Bay of

St. Louis, the Army Corps of Engineers properly lim-

ited the scope of its environmental assessment of a

permit to construct the effluent discharge pipeline to

the impacts of installation and maintenance of the

pipeline itself.

III

TABLE OF CONTENTS

Page

Le Tee eT ree ee eT TET rey 1

Ps ibs oi:ks high kee) 9 000s eee eats 1

is 4 cass \ skeen daveb dn way ks be aaah 1

a iro roo ahaa hes 0 €40042 seen when hes 6

SR a dicG'c UGee'ss'glkhee bb een se eeeD ooaas 11

PE Ga seas eee Uae herbie taeéoedeens la

TABLE OF AUTHORITIES

Cases:

Andrus v. Sierra Club, 442 U.S. 347...... 8

Atlanta Coalition, etc. v. Atlanta Regional

Corn, GOO FOG 2080 civic eee besos 8

Berenyi v. Immigration Director, 385 U.S.

Se USe ee SE PENG Cd NEREE OE REC CROTA' 10

Biderman v. Morton, 497 F.2d 1141 ...... 8

Branti v. Finkel, No. 78-1654 (Mar. 31,

BEE send oe a's Chk Ra ele Ee a 10

Citizens for Clean Air, Inc. v. United

States Corps of Engineers, 349 F. Supp.

hes vas Olas os cote ea ae ete aeetaR ee 10

District of Columbia v. Schram, No. 78-

2209, (D.C. Cir. June 18, 1980) ......... 8

Friends of the Earth v. Coleman, 518 F.2d

I han hes ied Ne ewe benwladls thao 8

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 10

Harlem Valley Transportation Ass’n v.

Stafford, 600 F’.20 G28. . scncsccvcesoes 9

Kleppe v. Sierra Club, 427 U.S. 390...... 9

IV

Cases—Continued: Page

Mahelona v. Hawaiian Electric Co., 418 F.

a A or Pre mca ee ere er 10

NRDC v. Morton, 458 F.2d 827 .......... 9

Port of Astoria v. Hodel, 8 E.R.C. 1156,

SET, COO Hie GON Bas kde be Raca kare ees 10

Save Our Ten Acres v. Kreger, 472 F.2d

BOE oink Waccebn s Sh ekcdkinaehs one cee 9

Save the Bay v. Administrator of the EPA,

GG ee SE bi Kei vivikscvenee tense 2

Save the Bay v. MAWPCC, Civ. No. 577-

0240 (S.D. Miss. Aug. 20, 1977), appeal

dismissed, No. 77-8214 (5th Cir. June 22,

RTOS 5 ios o's n.d bb eee pears oC tee 8

Save the Bay, Inc. v. United States Army,

Civ. No. S18-0340(c) (S.D. Miss.), appeal

argued and submitted, No. 79-2154 (5th

CP. AE. SE: TURD kaos teak ee 2,8

Save the Bay, Inc. v. MAWPCC, 341 So.

Be OE dain wide diva dbis chee vonemeatees 2

Sierra Club v. Froehlke, 534 F.2d 1289 ... 9

Stryckers Bay Neighborhood Council v.

Barton, 466 .U 5. BES eis acecieen ccs te vs 9

Swain v. Brinegar, 542 F.2d 364 ......... 9

Texas Committee on Natural Resources v.

Bergland, 573 F.2d 201 ......... thao 9

Vermont Yankee Nuclear Power Corp. v.

FREREIG SEO Ts OE a ev Sato sccdenskave 9

Statutes, rules and regulations:

Clean Water Act, 33 U.S.C. (Supp. I) 1341

et seq.:

Section 402(b), 33 U.S.C. (Supp. I)

POO oh vi Vacvivriwicicgeeeie ae 2,8

V

Statutes, rules and regulations—Continued: Page

Section 408, 33 U.S.C. (Supp. I) 1348 . 2

Section 404, 33 U.S.C. (Supp. I) 1344 . 5

Section 511(c), 33 U.S.C. (Supp. I)

A ee 6

Fish and Wildlife Coordination Act, 16

ee aa Wb 64.0.6,0 ce esee ves 5

Marine Protection Research and

Sanctuaries Act of 1972, 38 U.S.C. 1401

EE SC St ee 5

National Environmental Policy Act of 1969,

Section 102(2)(C), 42 U.S.C. 43832(2)(C).. 3,5

River and Harbors Act of 1899, Section 10,

a Ceniesvectens tees

ee eer

SM EMP AEUIO) occ ccccceccccceds

33 C.F.R. 209.120(h) (1975) ..............

Er ene

ee

40 C.F.R. Part 1500.6(a) (1979)...........

40 C.F.R. Part 1500.6(c) (1979) ...........

SE ET CEOTO) occ ccc cccccvccses

CES RES CLOTO) oo cccccccvecccis

b&

oon nwowwwor &

Miscellaneous:

Exec. Order No. 11991, 3 C.F.R. 124 (1978) 7-8

42 Fed. Reg. 37126 (1977) ..... 2 cccscveece 3

45 Fed. Reg. 56779 (1980) ............000- 8

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

10a) is reported at 610 F.2d 322. The order of the court

of appeals modifying its original opinion on denial of

the petition for rehearing (App., infra, la—2a)! is not

reported. The opinion of the United States magistrate

(App., infra, 4a-19a) and the judgment of the district

court (App., infra, 3a) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

January 24, 1980. Rehearing was denied on March 17,

1980 (App., infra, la-2a). The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case concerns the validity of a dredge and fill

permit that the Army Corps of Engineers (“Corps”)

granted to E.I. DuPont De Nemours & Co., Inc. (Du-

Pont), to construct a 2,200 foot effluent discharge

1 Contrary to Rule 21.1(k) of the Rules of this Court, the peti-

tion does not contain the court of appeals’ order denying re-

hearing, the judgment of the district court, the opinion of the

United States magistrate, or the court of appeals per curiam

decision dismissing the petitioner’s original appeal. Accordingly,

these items are reprinted in the appendix hereto.

On November 14, 1978, the court of appeals dismissed

petitioner’s appeal on the ground that the judgment had been

entered by a United States magistrate, rather than by a district

judge (App., infra, 20a-21a). Thereafter, the district judge en-

tered a judgment adopting the opinion of the magistrate (App.,

infra, 3a). The court of appeals affirmed (Pet. App. la-10a).

The court of appeals then modified its opinion on denial of a

petition for rehearing (App., infra, la—2a).

1

2

pipeline for the carriage of treated wastewater from

DuPont’s titanium dioxide manufacturing facility in

Delisle, Mississippi, into the Bay of St. Louis. The

effluent pipeline, which is 24 inches in diameter, is now

in place, and the DuPont plant has been in operation

since August 1979.2

On November 21, 1974, DuPont applied to the Corps

for issuance of a dredge and fill permit under Section

10 of the Rivers and Harbors Act of 1899, 33 U.S.C.

403, and Section 404 of the Clean Water Act, 33

U.S.C. 1344, to install the effluent pipeline at its De-

lisle, Mississippi, plant. DuPont estimated that instal-

2 DuPont was required to secure several permits from the

State of Mississippi in connection with the planning of its Delisle

plant. DuPont obtained a discharge permit from the Mississippi

State Marine Resources Council and an air emission and Na-

tional Pollutant Discharge Elimination System (NPDES) permit

from the Mississippi Air and Water Pollution Control Commis-

sion. In addition, the Interstate Commerce Commission, the

Corps, and the Coast Guard issued permits in connection with

the construction and operation of a railroad line from Gulfport,

Mississippi, to the DuPont facility. None of these permits is at

issue here.

Petitioner has challenged the air emission and water dis-

charge permits granted by the State of Mississippi in three pre-

vious cases. See Save the Bay, Inc. v. MAWPCC, 341 So.2d 98

(Miss. 1976); Save the Bay v. Administrator of the EPA, 556

F.2d 1282 (5th Cir. 1977); Save the Bay v. MAWPCC, Civ. No.

577-0240 (S.D. Miss. Aug. 20, 1977), appeal dismissed, No. 77-

$214 (5th Cir. June 22, 1978). Petitioner has also sought review

of two other dredge and fill permits issued by the Corps and a

river crossing permit issued by the Coast Guard for construction

of a railroad line from Gulfport, Mississippi, to the Delisle plant.

Save the Bay, Inc. v. United States Army, Civ. No. S78-0340(c)

(D. Miss.), appeal argued and submitted Aug. 12, 1980, No.

79-2154 (5th Cir.).

3

lation of the pipeline would require removal from the

Bay of 610 cubic yards of dredged material. On Feb-

ruary 3, 1975, the Mississippi Air and Water Pollution

Control Commission, acting in a separate proceeding

under a permit program approved by the Environmen-

tal Protection Agency, pursuant to Section 402(b) of

the Clean Water Act, 33 U.S.C. (Supp. I) 1342(b),

granted DuPont’s application for a National Pollutant

Discharge Elimination System (NPDES) permit to

discharge treated wastewater from the Delisle plant.

The Corps considered DuPont’s application under its

regulations governing regulatory permits and the

preparation of environmental impact statements (EIS)

under the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4332(2)(C). See, 33 C.F.R.

209.120(h) (1975); 38 C.F.R. 209.410.% In accordance

with its regulations, the Corps issued a public notice of

the DuPont permit application and sent copies of the

notice to appropriate federal, state and local agencies,

and to numerous environmental groups, business or-

ganizations and interested individuals. Without excep-

tion, the state and federal agencies advised the Corps

that the proposed permit would not have any signifi-

cant adverse impact on the environment. On June 19,

1975, the Corps held a public hearing to answer ques-

tions concerning the proposed pipeline permit and to

3 33 C.F.R. 209.120 (1975) was rescinded on July 19, 1977 (see

42 Fed. Reg. 37125). New regulations now govern the issuance

of Corps permits under Section 10 of the Rivers and Harbors

Act and Section 404 of the Clean Water Act (see 33 C.F.R.

323.2). The new regulations do not affect the instant case. Corps

regulations concerning the preparation of environmental impact

statements were not changed by the 1977 regulations.

rr

4

collect additional data for its environmental assess-

ment. Petitioner’s representatives expressed their

opinions at that hearing. On the basis of its environ-

mental assessment, the Corps would then determine

whether the pipeline project was a major federal ac-

tion requiring preparation of an EIS.

On July 17, 1975, the Corps district engineer issued

an environmental assessment concerning the proposed

permit. The district engineer determined that the

pipeline would cause no adverse effect on air quality

and that water quality would be only temporarily af-

fected. The district engineer also found that construc-

tion and maintenance of the pipeline would not have

any significant adverse effect on land use, wildlife, ma-

rine life, vegetation or historical interests. The district

engineer did not re-evaluate the environmental im-

pacts of the effluent discharge authorized by the

NPDES permit; nor did he consider the impacts of

construction and operation of the overall facility in his

assessment. The district enginee: concluded that the

pipeline provided an environmentally sound method of

diffusing treated wastewater’ with a minimum amount

of marsh destruction, and that the granting of the

permit would not be a major federal action requiring

preparation of an EIS. On August 6, 1975, the district

engineer issued the dredge and fill permit. The permit

authorized the construction of only the pipeline, and it

was issued subject to several conditions, one of which

4 DuPont also considered several other discharge methods in-

cluding deep well injection, which would not have required a

Corps permit, but the company concluded. that the pipeline

method was the most environmentally sound.

5

required that DuPont have a proper NPDES permit

governing the effluent discharge.

One year later, on August 5, 1976, petitioner filed

this action seeking both declaratory and injunctive re-

lief and money damages.® In particular, petitioner al-

leged that the Corps’ issuance of the permit without

preparation of an EIS violated Section 102(2)(c) of

NEPA. The case was referred to a United States

magistrate, who conducted a hearing on cross-motions

for summary judgment and subsequently dismissed

the action (App., infra, 4a-19a). The magistrate con-

cluded that the Corps was required to consider in its

environmental assessment only the effects of installa-

tion and maintenance of the effluent pipeline, rather

than the environmental consequences of the entire

project, and that the Corps’ decision not to prepare an

EIS was reasonable (App., inyra, 17a-18a).

The court of appeals affirmed (Pet. App. la-10a).

The court held that the Corps’ conclusion that the

effluent pipeline would not create any substantial ad-

verse environmental impact was not unreasonable be-

cause it was supported by the Corps’ environmental

assessment and the positive comments received by

other agencies (id. at 6a). The court also found that

the Corps’ decision not to reevaluate the effluent lim-

itations set under the Mississippi State NPDXS permit

5 Petitioner’s claims for monetary relief and for relief under

the Fish and Wildlife Coordination Act, 16 U.S.C. 662, Section

403 of the Clean Water Act, 33 U.S.C. 1343; and the Marine

Protection Research and Sanctuaries Act of 1972, 33 U.S.C.

1401 et seq., were all dismissed with prejudice (App., infra, 3a,

19a). Petitioner did not seek review in the court of appeals of

the order dismissing these claims.

6

was proper under Section 511(c) of the Clean Water

Act, 33 U.S.C. 1871(c)(2)(A)(B). Under Section 511(c)

federal agencies may not invoke NEPA to review

effluent limitations or impose limitations other than

those set pursuant to the Clean Water Act (Pet. App.

8a). Finally, the court concluded that the Corps’ deci-

sion to limit its environmental consideration to the

construction and operation of the pipeline itself was

not unreasonable (ibid.). While the court noted that in

certain cases permissions and approvals by federal

agencies may be of such significance that they effec-

tively ‘“‘federalize” an otherwise private action,

thereby making the private action subject to NEPA

(id. at 9a), the court concluded that the federal in-

volvement here was not sufficient to require NEPA

review of the entire DuPont plant (id. at 10a).

ARGUMENT

This case presents no issue warranting review by

this Court. The judgment of the court of appeals does

not conflict with any decision of this Court or any

other court of appeals.

1. Petitioner first contends that the Corps should

have prepared an EIS to evaluate the environmental

impact of the entire plant because the “cumulative im-

pact” of all federal permits accompanying the plant’s

construction and related activities, was sufficient to

“federalize” these activities and thereby trigger the

need for an EIS (Pet. 9-10). Petitioner bases its con-

tention (id. at 3) on guidelines issued in 1973 by the

Council on Environmental Quality (CEQ), which pro-

vided for the preparation of an EIS in certain circum-

7

stances where several federal agencies independently

permit separate aspects of one major action. See 40

C.F.R. Part 1500.6(a) (1979). Although DuPont’s per-

mit was issued while those guidelines were in effect,

they do not support petitioner’s contention.

While CEQ guidelines required the preparation of

an EIS “if it is reasonable to anticipate a cumulatively

significant impact on the environment from [the] Fed-

eral action” (40 C.F.R. Part 1500.6(a)(1979)), the

guidelines further explained that the action causing

the impact must be subject to federal control and re-

sponsibility to be considered “federal.” Ya. at Part

1500.6(c).6 The only federal permit at issue here is that

authorizing the removal of dredged material necessary

for constructing the pipeline. Significantly, the

NPDES permit authorizing the discharge of treated

wastewater into the Bay of St. Louis was granted not

by the Corps, but by the State of Mississippi Air and

Water Pollution Control Commission, and it was not at

640 C.F.R. Part 1500.6(c) (1979) (emphasis added) provided

in pertinent part :

The identification of major actions significantly affecting

the environment is the responsibility of each Federal

agency, to be carried out against the background of its own

particular operations. The action must be a (1) “major” ac-

tion, (2) which is a “Federal action,” (3) which has a “sig-

nificant” effect, and (4) which involves the “quality of the

human environment.” The words “major” and “signifi-

cantly” are intended to imply thresholds of importance

and impact that must be met before a statement is re-

quired. The action causing the impact must also be one

where there is sufficient Federal control and responsibility

to constitute “Federal action.”

= Prior to 1977, CEQ had no authority to issue regula-

tions, but could issue only guidelines. See Exec. Order No.

8

issue in this case.? Moreover, the effluent pipeline it-

self was not necessary for the operation of the plant,

and at least one alternative not requiring any Corps

permit was available to DuPont. In these circum-

stances, the court of appeals was correct in concluding

that the issuance of a pipeline construction permit was

not a major federal action requiring an EIS concerning

the environmental impact of the entire DuPont proj-

ect, given the existence of a valid State NPDES per-

mit.®

2. Petitioner’s principal contention (Pet. 10) is that

the court of appeals erred in holding that the Corps

{ 11991, 3 C.F.R. 124 (1978). See also Andrus v. Sierra

| Club, 442 U.S. 347, 357-358 (1979). CEQ’s regulations al-

<r tered the former guidelines (see 40 C.F.R. Parts 1508.7,

1508.18 (1979)), and the Corps has also amended its regula-

tions (see 45 Fed. Reg. 56779 (Aug. 25, 1980)).

7 NEPA applies, of course, only to federal actions or federally

funded actions, not to state or local actions. Atlanta Coalition,

etc. v. Atlanta Regional Com’n, 599 F.2d 1333, 1347 (5th Cir.

1979); Friends of the Earth v. Coleman, 518 F.2d 323, 327-329

(9th Cir. 1975); Biderman v. Morton, 497 F.2d 1141, 1147 (2d

Cir. 1974). In addition, NEPA does not apply to new source

NPDES permits issued by states having approved NPDES

permit programs in accordance with Section 402(b) of the Clean

Water Act, 33 U.S.C. (Supp. I) 1342(b). District of Columbia v.

Schram No. 78-2209 (D.C. Cir. June 18, 1980), slip op. 16 n.14.

8 The only other federal permits issued in connection with the

DuPont plant were permits necessary for the construction and

operation of a railroad line from Gulfport, Mississippi, to the

DuPont plant. These permits were not necessary to the opera-

tion of the DuPont plant itself, and they were not challenged in

this case. Petitioner unsuccessfully challenged those permits in

a separate proceeding, which is currently on appeal in the Fifth

Circuit. Save the Bay v. United States Army,(Civ. No. S18-

0340(c) (S.D. Miss.), appeal argued and submitted Aug. 12,

1980, No. 79-2154 (5th Cir.).

v

9

acted reasonably in limiting its consideration of poten-

tial environmental impacts to the construction and

maintenance of the effluent pipeline, rather than con-

sidering the entire DuPont plant, in deciding not to

prepare an EIS. In the particular circumstances of this

case, the court of appeals’ decision was correct.

The requirements of NEPA ire to be construed in

light of a “rule of reason.” See, e.g., Sierra Club v.

Froehlke, 5384 F.2d 1289, 1299 (8th Cir. 1976); Harlem

Valley Transportation Ass’n v. Stafford, 500 F.2d

328, 337 (2d Cir. 1974); NRDC v. Morton, 458 F.2d

827, 837 (D.C. Cir. 1972). Only if the Corps’ decision

was unreasonable may it be reversed. See, e.g.,

Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976); Texas

Committee on Natural Resources v. Bergland, 573

F.2d 201, 206 (5th Cir. 1978); Save owr Ten Acres v.

Kreger, 472 F.2d 468, 465 (5th Cir. 1973). And, in re-

viewing an agency’s determination, “(t]he task of the

court is not to decide where to draw the line, but to

review the matter to ascertain whether the agency has

made a reasonable choice.” Swain v. Brinegar, 542

F.2d 364, 369 (7th Cir. 1976). See also Aleppe v.

Sierra Club, supra, 427 U.S. at 410 n.21.% In view of

the limited federal action being taken here, the court

of appeals correctly sustained the reasonableness of

the Corps’ decision to consider in its environmental as-

® While NEPA establishes significant substantive goals for

the nation, the duties it imposes upon agencies are “essentially

procedural.” Stryckers Bay Neighborhood Council v. Karlen,

444 U.S. 223, 227 (1980); Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 558 (1978). Here, petitioner has

neither alleged nor shown that the procedural requirements of

NEPA were not met.

10

sessment the environmental impacts of only the con-

struction and maintenance of the effluent pipeline. The

DuPont facility is a privately financed project, and the

State of Mississippi issued all of the permits necessary

for its operation. The sole federal involvement in the

DuPont project was a dredge and fill permit needed

for construction of an effluent pipeline which, as pre-

viously noted, was not necessary to the operation of

the facility.

Petitioner’s contention that the decision below con-

flicts with decisions in other circuits (Port of Astoria

v. Hodel, 8 E.R.C. 1156 (D. Ore. 1975), aff'd, 595 F.2d

467, 477 (9th Cir. 1979); Citizens for Clean Air, Inc. v.

United States Corps of Engineers, 349 F.Supp. 696,

700 (S.D.N.Y. 1972); and Mahelona v. Hawaiian

Electric Co., 418 F. Supp. 1328, 1336 (D. Hawaii

1976)), is unfounded. The Fifth Circuit, upon whose

analysis (Pet. App. 10a) we rely, carefully considered

each of these decisions and concluded that they were

inapplicable to the circumstances presented here. In

each of the cases petitioners invoke, the court of ap-

peals found dispositive certain facts that are absent

here. Consequently, the court of appeals concluded

that the Corps was not required to consider the entire

DuPont facility in determining whether an EIS was

necessary. Further review of that fact-bound issue is

unwarranted. See, e.g., Branti v. Finkel, No. 78-1654

(Mar. 31, 1980), slip op. 5 n.6; Berenyi v. Immigration

Director, 385 U.S. 630, 635-636 (1967); Graver Mfg.

Co. v. Linde Co., 336 U.S. 271, 275 (1949).

‘ 11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

DirRK D. SNEL

NANCY B. FIRESTONE

Attorneys

SEPTEMBER 1980

APPENDIX

SAVE THE BAY, INC., PLAINTIFF-APPELLANT,

Vv.

THE UNITED STATES CORPS OF ENGINEERS,

THE UNITED STATES ARMY,

COLONEL DRAKE WILSON AND

E. I. DUPONT DE NEMOURS & COMPANY, INC.,

DEFENDANTS-APPELLEES

No. 79-1432.

United States Court of Appeals,

Fifth Circuit.

March 17, 1980.

Appeal from the United States District Court for

the Southern District of Mississippi; Dan M. Russell,

Jr., Judge.

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion January 24, 1980, 5 Cir., 1980, 610 F.2d 322).

Before BROWN, TJOFLAT AND GARZA, Circuit Judges.

PER CURIAM:

We withdraw the first sentence of our opinion in the

above styled cause and substitute therefor the follow-

ing:

Appellant appeals from the District Court’s adop-

tion and entry of judgment in conformity with the

la

$“

2a

refusal of the United States Magistrate, acting on

behalf of the District Court by consent of the par-

ties, to require the United States Corps of En-

gineers to prepare an Environmental Impact

Statement (EIS) as provided for under the Na-

tional Environmental Policy Act of 1969 (NEPA),

42 U.S.C. § 4821 et seq.

In all other respects, the Petition for Rehearing filed

on behalf of Save The Bay, Inc., is DENIED and no

member of this panel nor Judge in regular active

service on the Court having requested that the Court

be polled on rehearing en banc, (Rule 35 Federal Rules

of Appellate Procedure; Local Fifth Circuit Rule 16)

the Petition for Rehearing En Banc is DENIED.

3a

JUDGMENT

This cause having come before the Court on remand

from the Court of Appeals for the Fifth Circuit be-

cause the final judgment in this case was entered by a

United States Magistrate, the Circuit Court having

determined subsequent to the entry thereof that a

Magistrate cannot enter a final judgment, even with

the consent of the parties, and this Court, having fully

reviewed this matter, hereby adopts the opinion filed

by the Magistrate and enters Judgment in accordance

therewith. Accordingly, it is hereby

ORDERED AND ADJUDGED that the motions of

the Defendants, United States Corps of Engineers,

the United States Army, Colonel Drake Wilson, and

E.I. DuPont DeNemours for summary judgment are

hereby granted, the cross motion of the Plaintiff, Save

the Bay, Inc., for summary judgment is hereby de-

nied, atd this case is dismissed with prejudice, all par-

ties to bear their own costs.

ORDERED AND ADJUDGED this the 24 day of

January, 1979.

/g/ HAROLD Cox

United States District Judge

4a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF MISSISSIPPI

SOUTHERN DIVISION

No. S76-198 (C)

SAVE THE Bay, INC., PLAINTIFF

VU.

THE UNITED STATES CORPS OF ENGINEERS,

THE UNITED STATES ARMY,

COLONEL DRAKE WILSON, AND

E.I. DU PONT DE NEMOURS AND COMPANY,

DEFENDANTS

FINDING OF FACT AND CONCLUSION OF LAW

This cause having come for hearing on motions of

the defendants for summary judgment, affidavits, and

documentary evidence and the court having considered

the same, hereby enters the following Finding of Fact

and Conclusion of Law:

FINDING OF FACT

1. On November 21, 1974, the United States Army

through the Corps of Engineers (Corps) received an

application from E.I. du Pont de Nemours and Com-

pany (Du Pont) for a permit for the installation of a 24

inch effluent outfall line extending from Du Pont’s

proposed plant approximately 2200 feet into the Bay of

St. Louis, Mississippi.

5a

2. The Corps issued a Public Notice on December 9,

1974 to solicit comments from State, Federal and Local

agencies and from the public concerning such permit.

This notice was mailed to 123 addressees.

3. Such Applications and Notice provided that. no

discharge from the outfall line would occur unless Du

Pont obtained a National Pollutant Discharge Elimina-

tion System (NPDES) permit authorizing such dis-

charge.

4, Various responses to such public notice were re-

ceived by the Corps, including:

a. Letter dated 12/23/74 from the Fish and

Wildlife Service noting that it was reviewing Du

Pont’s proposed NPDES permit for discharge

through the outfall.

b. Letter dated 1/23/75 from Du Pont advising

the Corps that it was revising its application to

meet objections that Du Pont had received.

ce. Letter dated 2/7/75 from the Mississippi State

Clearing House for Federal Programs which in-

formed the Corps that the works was consistent

with State goals and policies. This letter also en-

closed a copy of a permit issued by Mississippi

Marine Resources Council to Du Pont which found

that the proposed project would have no signifi-

cant adverse impact on coastal wetlands.

d. Letter dated 2/25/75 from the Environmental

Protection Agency to the Corps advising the

Corps that EPA had no objections to the issuance

of the permit since the activity associated with the

construction of the outfall would have only tem-

porary and minimal ecological effects. The letter

further noted that Mississippi Air and Water Pol-

6a

lution Control Commission was issuing a NPDES

discharge permit with which EPA concurred.

e. Letter dated 3/4/75 from Fish and Wildlife

Service advising the Corps that the project would

have no adverse effects on fish and wildlife re-

sources and therefore it had no objection to the

permit.

f. Letter dated 3/5/75 from EPA advising the

Corps that NPDES authority had been delegated

to the State of Mississippi; that requirements of

NEPA Section 102(2)(c) were no longer applicable

and that EPA would not prepare an Environmen-

tal Impact Statement (EIS), and would not re-

quire Mississippi to do so.

g. Letter dated 3/14/75 from the National Ma-

rine Fisheries Service advising the Corps that it

would not make a definite recommendation be-

cause it was unable to adequately investigate it.

h. Letter from Mrs. Chris Jacob, conservation

chairman, Sierra Club, undated, objecting to

dredging marshlands to discharge into the Bay of

St. Louis and to altered land usage.

i. Letter from Save the Bay, Inc., dated 5/21/75,

responding to the Corps’ Notice of Public Hearing,

objecting to the issuance of the permit for various

reasons and requesting that hearing be postponed.

5. The Corps issued a Notice of Public Hearing on

March 27, 1975, which fixed June 19, 1975, as date for

a public hearing on the questions of issuing such per-

mit.

6. Pursuant to Notice, such hearing was held at the

West Side Community Center, Gulfport, Mississippi,

from 1:00 p.m. to 3:45 p.m. The applicant, proponents

and opponents were given unlimited time for their

Ta

presentations. A verbatim transcript of the hearing,

including all written statements and data were made a

part of the record.

7. Included in the record were written objections

from 20 persons, or organizations. Proponents included

Gulfport Jaycees, Mississippi State Port Authority,

City of Pass Christian, City of Long Beach, Harrison

County Development Commission, Gulfport Area

Chamber of Commerce, and Governor William Waller.

8. On July 17, 1975, Colonel Drake Wilson, District

Engineer for Mobile Corps issued a Statement of

Findings. This statement reviewed the proposed per-

mit, assessed the environmental effects and impacts

upon air quality and water quality. It determined that

the work (outfall line) would have no adverse effect on

air quality and the water quality would be effected

temporarily and such effects would be localized by the

construction of the outfall line. The findings also noted

that Du Pont had received an NPDES permit from the

State of Mississippi for the discharge and that the

EPA had participated thoroughly in the formulation of

the permit and concurred in the issuance of the permit.

Additionally, the EPA had no objection to the issuance

of the Corps permit. It was also noted that the Missis-

sippi Marine Resources Commission had issued its

permit for the outfall line.

9. In addition, Colonel Wilson made additional as-

sessments of the environmental effects and impacts

regarding (a) land use; (b) noise; (c) visual aesthetics;

(e) waste disposal; (f) wildlife; (g) fisheries; (h) salt

marsh and estuarine bottom; (i) beach; (j) historical.

8a

10. The statement found that the public interest

would be served since the proposed outfall line would

provide an “environmentally sound method of diffusing

the treated wastewater [from the Du Pont plant] and

the outfall site offers the minimum amount of marsh

destructions.”

11. Various agencies’ comments were listed as were

the names of opponents and proponents who submitted

written comments.

12. Based upon the review of the entire record,

Colonel Wilson concluded that the environmental ef-

fects associated with the proposed action are such that

preparations of an environmental impact statement

was not required. He also noted as a matter of record

that EPA specifically excluded the effluent from the

Du Pont plant as requiring an environmental state-

ment, and noted that EPA had advised the Corps that

EPA would not prepare an EIS on the DuPont plant.

He also noted that no state or federal agency was op-

posed to the issuance of the permit and no agency had

recommended conditions or restrictions to such per-

mit.

13. Based upon such record, the environmental as-

sessment the comments of various persons, and state

and federal agencies, he directed that the permit be

issued on June 17, 1975.

14. On August 6, 1975, the United States Army,

through the Corps issued the permit to Du Pont. The

permit allows Du Pont to construct an outfall pipe,

with attendant structures in the Bay of St. Louis, and

to dredge a trench in the Bay bottom to lay the pipe.

The work was described as follows:

9a

“Installation of a 24 inch diameter effluent outfall

line extending approximately 2200 feet into the

Bay, by dredging a trench. Approximately 610 cu.

yds. of material will be dredged and deposited in

an upland disposal site on the applicant’s prop-

erty. Installation of two dolphins for the purpose

of displaying a warning sign over the outfall line.

A continuous fender structure with warning lights

at the center and both ends will be erected in

order to prevent accidental navigation through the

diffuser section. The effluent outfall line will carry

wastewater discharge from a proposed titanium

dioxide manufacturing plant. Work will front ap-

plicant’s property, St. Louis Bay, Harrison

County, Mississippi, in accordance with the plans

and drawings attached hereto which are incorpo-

rated in and made a part of this permit subject to

the following conditions.”

15. The permit contains 14 general conditions, and

the following special conditions:

“This permit does not authorize any discharges

subject to the National Pollutant Discharge

Elimination System, Public Law 92-500, as re-

quired from the appropriate permitting agency.”

16. The special condition cited in Section 15 of this

Finding of Fact was satisfied by the issuance by the

Mississippi Air and Water Pollution Control Commis-

sion permit board of NPDES permit No. MS 0027294

to Du Pont on February 3, 1975.

17. The action of the Corps in issuing the outfall

permit is limited to the authorization of the activity

specified in said permit. The activity of the Corps in

this regard is not major federal action significantly af-

fecting the quality of the human environment.

10a

18. The environmental assessment contained in

Colonel Drake Wilson’s Statement of Findings is rea-

sonable, and is based upon substantial evidence.

19. The defendant, Du Pont, has aided and assisted

and abetted the Corps in securing the permit, but such

activity is permissible as it is in the case of any appli-

cant to the Corps for a permit, and there is no evi-

dence that such activity exceeded permissible bounds.

20. On February 17, 1977, this court held a hearing

on Defendant’s Motion for Summary Judgment, and

Plaintiff's Cross-Motion for Summary Judgment. Since

such hearing three separate but related cases have -:

been disposed of or are pending, of which this court

takes judicial notice under Rule 803 and Rule 201 of

the Federal Rules of Evidence. These three matters

are:

I. RELATED LITIGATION

(a) Case 1. Save the Bay, Inc. v. Mississippi Air

and Water Pollution Control Commission, in the mat-

ter of Air Emissions Permit No. 1020-00115 and Wast

Water Discharge Permit No. MS0027294 issued to E.I.

DuPont de Nemours & Company, pending before the

Mississippi Air and Water Pollution Control Commis-

sion.

Case 2. Save the Bay, Inc. vs. Administrator of the

Environmental Protection Agency, No. 75-1633,

United States Court of Appeals, Fifth Circuit, decided

on August 5, 1977.

Case 3. Save the Bay, Inc. vs. Mississippi Air &

Water Pollution Control Commission; Environmental

Protection Agency, Douglas M. Costle, Administrator

lla

of the Environmental Protection Agency, and the

United States of America, Civil Action No. S77-

0240(N), United States District Court, Southern Dis-

trict of Mississippi, Southern District of Mississippi,

Southern Division, dismissed on August 20, 1977.

(b) The case, sub judice, as do Cases 1 through 3,

arise out of the efforts of Save the Bay, Inc. to prevent

E.I. DuPont de Nemours & Company (DuPont) from

constructing a large manufacturing facility on the

north shore of Bay St. Louis, Mississippi, and to pre-

vent it from discharging treated water effluent in wa-

ters which discharge is permitted under the permits

referred to in Case No. 1 above.

(c) One of the attacks upon the Corps of Engineers

permit to construct the outfall line in the case sub

judice, is that the Corps of Engineers failed to prepare

an Environmental Impact Statement regarding the

effects of the discharge of treated waste water into the

Bay of St. Louis, which the MAWPCC has permitted,

the EPA has approved, and that such discharge vio-

lates the FWPCA standards. Though the Cases num-

bered 1 through 3 are against defendants other than

the two defendants in the case sub judice, neverthe-

less, all four cases have the same objective, and that is

to prevent DuPont from discharging waste water into

the Bay through such out-fall line and thus prevent

construction of the Plant. For this reason, the status of

such cases are material to a disposition of this case.

II. STATUS OF RELATED LITIGATION

(a) Case 1. This case represents the direct attack of

Save the Bay, Inc. against the air and water effuent

12a

discharges. The case is the result of a decision of the

Mississippi Supreme Court in the matter of Save the

Bay, Inc. v. MAWPCC, No. 49,509, dated November

23, 1976, which held that the Mississippi Air and

Water Pollution Control Act, 49-17-1 through 49-17-43,

required the MAWPCC to grant to Save the Bay, Inc.

a fair hearing. This decision did not set aside such

permits, but only required such hearing. Pursuant to

the mandate of such Court, MAWPCC has been con-

ducting hearings and has officially recorded its intent

to render its decision no later than December 9, 1977.

(b)(1) Case 2. This case represented an attack upon

the action of the Environmental Protection Agency in

granting to the MAWPCC the authority to issue

NPDES permits pursuant to the Federal Water Pollu-

tion Control Act Amendments 33 USC Sec. 1251-1376,

and also attacked EPA’s refusal to veto the MAWPCC

permit issued to DuPont.

(b)(ii) The Court held that full administrative de-

velopment in the form of specific requests by Save the

Bay, Inc., to EPA for withdrawal of NPDES authority

to MAWPCC and an official determination by EPA

must preceed judicial reviews and therefore dismissed

the case without prejudice on that issue. As to EPA’s

alleged failure to block the permit, the court held that

Courts of Appeal lack original jurisdiction to review

EPA’s omission to veto a proposed permit under a

state program and dismissed Save the Bay, Inc.’s

claim. The Court summarized District Court review-

ability of EPA’s decision not to issue a permit. The

Court stated that such review must be limited to two

(2) narrow considerations: Whether a proposed permit

13a

contained a violation of applicable federal guidelines

that the agency has failed to consider; and whether

unlawful factors have tainted EPA’s exercise of discre-

tion.

(b) (iii) The Court of Appeals dismissed the case

without, prejudice on the first issue, and dismissed

with prejudice on the other two issues. It necessarily

follows that at this time, the MAWPCC is the duly au-

thorized agency of the State of Mississippi which EPA

has delegated its NPDES permitting authority, and

that this line of attack has failed.

(c) (i) Case 3. This case was brought as an original

action against EPA and MAWPCC by Save the Bay,

Inc. Such suit was filed on or about July 11, 1977, and

sought, among other things, a Temporary Restraining

Order cancelling the hearing referred to in Case 1; a

mandatory injunction directing the MAWPCC to en-

join DuPont from continuing the construction of its

plant; cancellation of the MAWPCC’s permits; desig-

nation of EPA as an appropriate agent to conduct any

further hearings; preparation by EPA of an EIS pur-

suant to NEPA; a declaratory judgment concerning is-

sues raised in the pleadings regarding such permits; a

writ of mandamus or injunction to EPA directing it to

withdraw EPA’s authorization of MAWPCC’s author-

ity to issue NPDES permits; a monetary judgment in

favor of Plaintiff in the amount of $150,000.00 and

costs, damages, and attorneys fees.

(c) (ii) Plaintiff noticed a Motion for Hearing on its

prayer for a Temporary Restraining Order for August

19, 1977. Judge Nixon heard this motion and found

that Save the Bay, Inc., had made no showing of im-

14a

mediate and irrepairable harm, injury, loss or damage;

no showing that Plaintiff would be successful on the

merits; and found that a cancellation of the MAWPCC

hearings (Case # 1) would not be in the public interest;

that MAWPCC and EPA had no authority to halt con-

struction of the plant; and EPA: had no authority to

cancel DuPont’s permits.

(c) (iii) The court recessed the hearings on August

19, 1977, and stated that it would rule the following

day on Defendants Motion to Dismiss. One of the is-

sues raised by the Defendant’s Motion to Dismiss was

the standing of the Plaintiff to bring such suit. Save

the Bay, Inc. alleged in Case No. 3, as in the case sub

judice, that is had standing to bring such suit. The

Court found from an examination of the pleadings and

proof before it that Save the Bay, Inc., had no stand-

ing to sue MAWPCC or EPA.

(c) (iv) Another issue before the Court in Case 3 was

the allegation of Save the Bay, Inc., that the discharge

of treated waste water in the Bay of St. Louis was a

“new source” and that EPA was required to prepare

an Environmental Impact Statement. The Court found

that such discharge was not a “new source” and that

EPA was not required to prepare an EIS.

(c) (v) Such opinion was incorporated in Judge Ni-

xon’s order by reference, and the Court entered its

order dated August 20, 1977, dismissing the Complaint

with prejudice. Plaintiff gave timely notice of appeal,

but the record on appeal has not been lodged with the

Circuit Court of Appeals for the Fifth Circuit.

(c) (vi) The Court finds that the MAWPCC has not

been enjoined from proceeding with such hearing re-

15a

ferred to as Case 1, and that such hearing is proceed-

ing.

III. EFFECT OF SUCH DECISIONS:

(a) MAWPCC Permit:

The efforts of the Plaintiff to attack the EPA ap-

proved permit to discharge treated waste water into

the Bay of St. Louis, if successful, would have sus-

pended the efficacy of the Corp of Engineers Permit,

as one of the conditions of the COE permit was that

such discharge comply with MAWPCC standards. The

direct attack against MAWPCC’s authority to issue

such permit as represented by Case 2 has failed. The

efforts to suspend the efficacy of such permit repre-

sented by Case 3 pending a “fair hearing” before the

MAWPCC in Case 1 has failed. The Court finds that

the MAWPCC has exclusive jurisdiction to issue such

permit, that such permit is in full force and effect, and

that the condition in the COE permit requiring Du-

Pont to secure the MAWPCC permit is satisfied.

(b) Standing to Sue:

Based upon the record before the Court in the case

sub judice, and the Court’s findings in Case 3 that

Save the Bay, Inc., did not have standing to bring

such suit, this Court finds as a fact that the Plaintiff

has failed to allege or show any facts which establish

that it is aggrieved, adversely affected, wronged or

has sustained economic injury as a result of the action

of the Issuance of the Corps of Engineers permit

which is the subject of this case. The decision of the

Court in Case 3 is not res adjudicata, nor is collateral

estoppel involved. Such decision is persuasive, how-

16a

ever, and the Court finds in this case that Save the

Bay, Inc., represents six individuals who reside prin-

cipally in New Orleans, Louisiana, and who maintain

vacation homes in Hancock County, Mississippi. The

remaining four individuals represented by Save the

Bay, Inc. reside in Hancock County. No persons who

are represented by the Plaintiff reside in Harrison

County, Mississippi, nor have any of such persons al-

leged or proved that they have or will be aggrieved,

adversely effected, wronged, or will sustain injury by

the construction of such outfall line or discharge of

treated waste water from such outfall line.

CONCLUSIONS OF LAW

1. The standard for review of the threshold deter-

mination that an EIS need not be prepared is whether

such determination is reasonable. Save Our Ten Acres

v. Kreger, 472 F.2d 463 (5th Circuit, 1973).

2. In applying the test of reasonableness, the

threshold determination is still for the agency to make

and such determination should be upheld if the deter-

mination was reasonable and was made objectively and

in good faith on a reviewable environmental record.

Rucker v. Willis, 484 F2d 158, (4th Circuit, 1973);

Morningside Renewal Committee v. U.S. Atomic

Energy Comm., 482 F.2d 234 (2nd Circuit, 1973), cert.

denied 417 U.S. 951, 94 S.Ct. 3080, 41 L. Ed. 2d 672;

Hendrickson v. Wilson, 374 F. Supp. 856 (D.C. Mich.,

1973).

3. The provisions of NEPA must be read in the con-

text of other statutes such as the specific language in

the Federal Water Pollution Control Act which places

17a

the control of water pollution caused by discharges of

effluents in the hands of the states and the Environ-

mental Protection Agency. U.S. v. SCRAP, 412 U.S.

669, 43 S. Ct. 2405, 37 L.Ed. 2d 254.

4. Congress placed the responsibility for the control

of effluents in the hands of the state and the Environ-

mental Protection Agency. 38 U.S.C. Sec. 1251(b), (d),

1311, 1341, 1342, and 1371.

5. The Corps, while it could rely upon the determi-

nation of EPA and the state that the effluent would

not have a significant effect on the environment, had

to make its own determination on the effects caused by

the activity authorized by the Corps permit. Mahelona

v. Hawaiian Electric Company, 417 F. Supp. 13828 (D.

Hawaii 1976).

6. The issuance of the Corps permit was not a suffi-

cient nexus between the Corps and the construction of

the DuPont plant to make the Corps a partner in such

construction and thereby “federalize” the construction

of the DuPont plant. Sierra Club v. Hodel, F.2d (9th

Circuit, 1976) (7 ELR 20008); Port of Astoria v. Hodel,

F. Supp. (D. Ore., 1975) (8 ERC 1156).

7. The environmental assessment prepared by Colo-

nel Drake Wilson in his statement of Findings dated

July 17, 1975, addresses the possible environmental

consequences of the activity authorized by the Corps

permit, is based upon substantial evidence and is rea-

sonable. The procedures followed by the Corps comply

with appropriate federal regulations and statutes. The

Corps determination not to prepare an Environmental

Impact Statement was proper.

18a

8. The Corps fulfilled its objection under the Fish

and Wildlife Coordination Act. Sun Enterprises v.

Train, 582 F2d 280 (2nd Circuit, 1976).

9. Section 301(a) of the Federal Water Pollution

Control Act imposes no requirements on the Corps

during its issuance of the DuPont permit. 33 U.S.C.

1311(a).

10. The Corps complied with the requirements of

Section 404 of the Federal Water Pollution Control

Act. 33 U.S.C. 1251, 1841.

11. The Mississippi Air and Water Pollution Control

Commission through its permit Board, has exclusive

jurisdiction to issue Waste Water Discharge Permit

No. MS0027294 to DuPont. Save the Bay, Inc., v

EPA, No. 75-1638, 556 F2d 1281 (5th Circuit).

12. Such Permit is, unless otherwise modified or re-

voked, in full force and effect. Save the Bay, Inc., v.

MAWPCC, 341 So2d 98; Save the Bay, Inc. v. EPA,

No. 75-1533, 556 F2d 1282, (5th Circuit).

13. Such Permit is in full force and effect, and satis-

fies the Conditions of the Corps of Engineers Permit

relating to waste discharges into the Bay of St. Louis.

14. Save the Bay, Inc., has no standing to seek re-

view of a Permit issued by the Corps of Engineers to

DuPont. Sierra Club v. Morton, 405 US 727, 31 L.Ed

2d, 636, 92 S.Ct. 1861, (1971); Save the Bay, Inc., v.

MAWPCC, et al, Civil Action S77-0204 (N), USDC,

Southern District of Mississippi, Southern Division,

(1977).

15. The issuance of the COE permit was proper.

19a

16. There is no cause of action stated against Du-

Pont.

17. There is no genuine issue of fact, and as a matter

of law, Defendants are entitled to Summary Judg-

ment.

18. Such complaint is dismissed with Prejudice at

costs of Plaintiff.

ORDERED this the 16th day of December, 1977.

JOHN ROPER

UNITED STATES MAGISTRATE

20a

On the Wnited States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 78-1310

Summary Calendar*

SAVE THE Bay, INC., PLANTIFF-APPELLANT,

Vv.

THE UNITED STATES CORPS OF ENGINEERS,

UNITED STATES ARMY,

COLONEL DRAKE WILSON AND

E. I. DUPONT DENEMOURS AND COMPANY, INC.,

DEFENDANTS-APPELLEES.

Appeal from the United States District Court for the

Southern District of Mississippi

(NOVEMBER 14, 1978)

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens

Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409,

Part I.

2la

Before CLARK, GEE and FAY, CIRCUIT JUDGES.

PER CURIAM:

In this environmental suit about the discharge of

pollutants into Bay St. Louis, all parties consented to

trial and the entry of final judgment by the magistrate

and the district court approved this consent. The re-

sulting judgment is appealed to us, but it is not ap-

pealable. Magistrates cannot enter final judgments,

even with the consent of the parties. Carmena v. In-

ternational Union of Operating Engineers, Local 406,

572 F.2d 1031 (5th Cir. 1978).

As in Carmena, we therefore dismiss the appeal

without prejudice to a future appeal following the dis-

trict court’s review of the magistrate’s actions and the

entry of a final judgment by the district court.

DISMISSED.

t U.S. GOVERNMENT PRINTING OFFICE: 1980 328077 75