Opposition Briefmm — City of New Haven v. Marsh

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Supreme Coutt, US,

EILED

No. 88-18 2)

IN THE

Supreme Court of the United

Ocroser TERM, 1988

CITY OF NEW HAVEN, CONNECTICUT,

Petitioner,

vs.

JOHN O. MARSH, JR., SECRETARY OF THE ARMY,

et all.,

Respondents.

On Petition For a Writ of Certiorari to The United States

Court of Appeals For the First Circuit

BRIEF FOR RESPONDENT

MALL PROPERTIES, INC. IN OPPOSITION

DANIEL RIESEL

460 Park Avenue

New York, New York 10022

(212) 421-2150

Counsel for Respondent

Mall Properties, Inc.

Of Counsel:

StveE, Pacer & RiEsEL, P.C.

Mark A. CHERTOK

KAREN E. Gross

On the Brief

/ +

noes

a ¥

‘¢ “

QUESTIONS PRESENTED

The petition for certiorari presents

the following two questions:

1. Whether the Court of Appeals

correctly concluded that the District

Court order vacating the denial of a

permit by the U.S. Army Corps) of

Engineers and remanding the matter to the

Corps of Engineers for further

proceedings on the permit application is

not a "final decision" subject to appeal

under 28 U.S.C. §1291.

2. Whether the Court of Appeals

correctly concluded that the appeal by

the City of New Haven does not fall

within the exception for appeals by

federal defendants from remand orders

imposing a new legal standard on the

government agency because the City will

be able to obtain review from the final

determination of the Corps of Engineers,

PARTIES TO THE PROCEEDING

The petitioner is the City of New Haven,

Connecticut. The federal respondents are

John O. Marsh, Jr., as Secretary of the

Army; Lt. General E.R. Heiberg, as Chief

of the United States Army Corps of

Engineers; Col. Thomas A. Rhen, as

Division Engineer, New England Division,

United States Army Corps of Engineers

and the United States Army Corps of

Engineers, Department of the Army. Mall

Properties, Inc. is also a respondent.1

1 Mall Properties, Inc. has no

parent, subsidiary, or affiliated corporations.

iii

TABLE OF CONTENTS

OPINION BELOW...... cc ccccccccccvecs

JURISDICTION....... Terererere re a

STATUTORY AND REGULATORY

PROVISIONS INVOLVED...........-.-.

STATEMENT OF THE CASE......--eeeee-

THE PETITION SHOULD BE DENIED.....

A. Standards For A Writ Of

ESS

B. The Court of Appeals

Correctly Applied The

Established General Rule

That Remand Orders Are

Not Appealable...........

C. Remand Was Required In Any

Event To Allow The Corps Of

Engineers To Comply With

Its Own Regulations......

D. The Exception For Appeals

- By Federal Defendants Does

Not Apply To New Haven...

E. The Dismissal of New Haven's

Appeal To Avoid Piecemeal

Review Does Not Prejudice

New Haven.....cccccccsccs

F. The District Court Did

Not Impose A Radical

New Standard Justifying

Immediate Review.........

0 ae

PAGE

Re Section 10 of the RHA...

2. The Public Interest

POOELOCLONS . cc cc ccveseca

OF AUTHO 3

CASES PAGE

Animal Lovers Volunteer Association,

Inc. v. Weinberger, 765 F.2d 937

CSE. Ss SE Cy idncnsseeeuk anes 52,53

v. Weinbe , 485 F.2d

Se Ce Ga, BOTS i ou bocca nce cds 19

Bender v. Clark, 744 F.2d 1424

Fae Ges BOD cs bce cawedsce ddan 25,26

27,28

Bohms v. Gardner, 381 F.2d 283

(8th Cir. 1967), cert. denied,

Ss oe OR leer ome: 19,20

Bersani v. EPA, No. 87-6275,

87-6295 (2d Cir.

SUMO GB, {GSS} ccccccecsecsvcscsseses 54,56

- 57

Bureau of Alcohol, Tobacco and

Firearms v. Federal Labor

Relations Authority, 464 U.S. 89

[RT os cesivendcedens PL Pi ee ewan 36

Buttrey v. United States, 690 F.2d

1170 (5th Cir. 1982), cert.

denied, 461 U.S. 927 p

Ce A Gi ode aie de one Oe he hs 47

Cape May Green, Inc. v. Warren,

698 F.2d 179 (3d Cir. 1983)...... 48

Catlin v. United States,

eR Se ye Co ee eee 18

CASES PAGE

Dalto v. Richardson, 434 F.2d 1018

(2a Cir. 1970), cert. denied, 401

Gh, OR: COGS x cece ieee 19

Deltona Corp. v. United States,

657 F.2d 1184 (Ct. Cl. 1981),

cert. denied, 455 U.S. 1017

Davis v. Colemen, 521 F.2d

661 (9th Cir. 1975). .cccccccccces 54,

Loki *. ;

Vv j 7

338 U.S. 507 (1950)..........20.., 29

Eluska v. Andrus, 587 F.2d 996

(SER GEE. IDTB) accccccccccosccoes 19

is Vv. is and

Jacquelin, 417 U.S.

EGE CIGTE) cccvcccccccccccoccececs 21

Farr v. Heckler, 729 F.2d 1426

(llth Cir. 1984)... ccc ewe cc ceee 18,19

Giordano v. Rudebush, 565 F.2d 1015

(GER CAF. IST7F) cccccccsecsececess 19

Howell v. Schweiker, 699 F.2d 524

(llth Cir. 1983)...............0. 18,19

in re Abdallah, 778 F.2d 75

(lst Cir. 1985), cert. denied

sub nom. Drury v. Abdallah, 476

GeBs ZARO Cae se aneee kee Wcescse 18

Jentgen v. United States, 657 F.2d

1210 (Ct. Cl. 1981), cert. denied,

455 U.S. 1017 (1982)............. 43

vii

CASES PAGE

Mall Properties, Inc. v. Marsh,

672 F.Supp. 561 (D.Mass. 1987),

aff'd, 841 F.2d 440 (1st Cir.),

’

No. 87-1827 (lst Cir.

April 7, 1988) ....cccccccccccees -DASSIB

, : -

Heckler, 769 F.2d 1043

(Sth Cir. 1985) ...cccccccccceeees 18

Met Lit Edi “oy

;

460 U.S. 766 (1983)... ceeeeees passim

v. Feldman, 722 F.2d 893

(ist Cir. 1983) cccecccccccccccces 36

; 1 citi

Better Community v.

United States, 606 F.Supp. 964

(D.Minn. 1985), aff'd, 793

F.2d 201 (8th Cir. 1986)......... 53

Pacific Northwest Bell

Telephone Co. v. Dole,

633 F. Supp. 725

ee , IE cs ce cescecccceces 52,53

Paul _v. Secretary of

Air Force, 457 F.2d

SOG Eee GEb. SOTE) a dcsccwccccess 19

Vv ite t

Postal Services, 541 F.2d

BOS Serre 54,55

viii

CASES PAGE

Stryker Bay Neighborhood .

Council Inc. v. Karlen,

gs SS) Fl Re 48

Thornbugh v. American College of

eabakelal x. onl ;

Se ae Er Cis ies cucccce 24

United States ex rel. Greathouse

v. Dern, 289 U.S. 352 (1933)..... 37,38,

ited T bat ,

Vv inoi t » oP

433 F.2d 566 (7th Cir. 1970),

cert. denied, 402 U.S. 951

aevaedian ek as TEAS 9 ee 19

Zabel _v. Tabb, 430 F.2d 199

(Sth Cir. 1970), cert. denied,

402 U.8. 910 (1972) .ccccccccsces 38,39

STATUTES

26 U.B.C. § 1284(1) ..cccccccccccees 3

28 U.S.C. § 1254(2) .cccccccccccccce 24

28 U.S.C. § 1291.2 coe cscccccccccces 3,17,20

Coastal Zone Management Act of 1972,

26 U.S.C. § 1451 QF Bag. wcccceccs 44,47

Clean Water Act, 33 U.S.C. § 1251

et seg.

3S UVeBeCe § 2343(6) (2) ccccvccccce 45

OD UVeBeSn § BEEGcccccccsccceccesces 4,42

BS GeSeCe § 1LS4E (CD) ccscccscsecoceos 44,45

STATUTES PAGE

33 U.S.C. § L4lLZ- cece eeveseeveees 47

Marine Protection, Research and

Sanctuaries Act of 1972,

33 U.S.C. § 1401 et SEG. «--++ees 44

National Environmental Policy

Act of 1969, 42 U.S.C. §4321

Ct SCG. cere cere cceereesceceses 5,44

42 U.S.C. § 4332(C) eee eee veevces 51

Rivers and Harbors Appropriation

Act of 1899, 33 U.S.C. §401

et seq.

ge ee Fae We; er rere ree 4

REGU ONS

40 G.9.R. 227.17 (A) (2) a scccvcsccess 46

ae ee ey!) errr rrr re 46

ee eae Pree e ree eer re TTT 46

ven Se 2!) Pewerrrrrrr ry Se 49

38 Fed. Reg. 12217 (May 10, 1973).. 43

42 Fed. Reg. 37122 (July 11, 1977). 41,43

COURT RULES

re Pr Sea 15,16

CTHER AUTHORITIES

H. Rep. No. 917, 91st Cong. 2d

Sess. 5 (1970) .ccccceeceeeesssveces 42

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NO. 88-18

CITY OF NEW HAVEN, CONNECTICUT,

Petitioner,

Vv.

JOHN O. MARSH, JR., SECRETARY OF

THE ARMY, ET AL.

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the First Circuit

BRIEF FOR RESPONDENT

MALL PROPERTIES, INC. IN OPPOSITION

Respondent, Mall Properties, Inc.,

opposes the petition of the City of New

Haven for certiorari to the United States

Court of Appeals for the First Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals

is reported at 841 F.2d 440 (lst Cir.

1988) (App. B at 3a-23a).2 The denial of

the petition for rehearing and suggestion

for rehearing en banc is’ unreported

decision, No. 87-1827, (ise €if.

April 7, 1988) (App. A at 1a-3a). The

memorandum and order of the District

Court is reported at 672 F. Supp. 561 (D.

Mass. 1987) (App. D at 25a-84a).

JURISDICTION

The order of the Court of Appeals

(App. B) was entered on March 11, 1988.

The petition for rehearing and suggestion

for rehearing en banc (App. A) was denied

on April 7, 1988. Petitioner apparently

2 The decisions below and other

materials are bound in an appendix

submitted by petitioner City of New

Haven. References to the appendix

are designated parenthetically as "App."

followed by the page(s) number on which

the referenced material appears.

invokes jurisdiction under 28 U.S.C.

§1254(1).

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

28 U.S.C. §1291

The court of appeals (other

than the United States Court of

Appeals for the Federal

Cire wit) shall have

jurisdiction of appeals from

all final decisions of the

district courts of the United

States, the United States

District Court for the District

of the Canal Zone, the District

Court of Guam, and the District

Court of the Virgin Islands,

except where a direct review

may be had in the Supreme

Court. The jurisdiction of the

United States Court of Appeals

for the Federal Circuit shall

be limited to the jurisdiction

described in sections 1292(c)

and (da) and 1295 of this title.

Other relevant statutes and

regulations are set forth in the Addendum

to the brief of petitioner City of New

Haven.

STATEMENT OF THE CASE

Mall Properties has been attempting

Since the early 1970s to develop a

regional shopping mall in the

metropolitan New Haven area in order to

meet an undisputed long-standing need.

The site selected is situated in an

industrial/commercial corridor in the

Town of North Haven, parallel to the

Quinnipiac River. This site had been

extensively ravished and disturbed by

earlier strip mining and quarrying

operations, which created approximately

18 acres of low grade scrub wetlands and

small ponds. The development of the mall

would require the filling of these areas,

together with limited amounts of natural

wetlands. Consequently, the Corps of

Engineers determined that development of

the mall would necessitate a permit

pursuant to Section 404 of the Clean

Water Act ("CWA"), 33 U.S.C. §1344, and

Section 10 of the Rivers and Harbor

Appropriations Act of 1899, 33 U.S.C.

§403.

The Corps of Engineers'

administrative process commenced in early

1979, and included the preparation and

circulation of draft and final

environmental impact statements pursuant

to the National Environmental Policy Act

("NEPA"), 42 U.S.C. §4321 et seqg., and

the holding of public hearings.

Throughout the process, New Haven opposed

the development of the mall, claiming

that a North Haven mall would compete

with New Haven's downtown shopping area

by diverting customers and retail stores,

thus adversely affecting the City's

economy.

The Corps of Engineers issued its

Record of Decision denying Mall

Properties' permit application on

August 20, 1985. (App. H 104a-272a). The

document reflected the conclusions of the

environmental impact statement that the

proposed mall would not have significant

effects on the environment, including

wetlands and flooding, and that the

principal, if not sole, area of

controversy surrounding the proposed

development was its potential economic

effect upon the City of New Haven. The

Record of Decision concluded that the

mall's potential for jeopardizing New

Haven's efforts to stimulate development

in its downtown area -- principally

through an erosion of "confidence" in

such efforts -- warranted permit denial.

In reaching its determination, the Corps

relied upon its perception, gleaned from

a private meeting with the Governor of

Connecticut, that the State opposed the

development. (App. H at 258a-259a, 270a-

272a).

Mall Properties commenced this

litigation in October 1985, and moved for

summary judgment in January 1986. The

federal defendants cross-moved for

summary judgment, as did the City of New

Haven (which had previously been allowed

to intervene). The District Court ruled

that (i) the Corps of Engineers' denial

of permits for the proposed shopping

aki principally upon the effect of

economic competition with City of New

Haven, exceeded the agency's authority,

and (ii) the Corps had violated its

regulations and improperly relied upon

the supposed opposition of the Governor

of Connecticut to the proposal. On

September 8, 1987, the District Court

issued an order remanding the matter to

the Corps of Engineers for further

proceedings. (App. D at 25a-84a).

On September 14, 1987, the City of

New Haven filed a notice of appeal. The

Solicitor General determined not to

appeal the Order, and on November 18,

1987 the federal defendants moved to

dismiss the appeal of the City of New

SSS

Haven. On December 2, 1987, Mall

Properties joined in the _ federal

defendants' motion to dismiss. The Court

of Appeals granted the motion and

dismissed the appeal for lack of

jurisdiction on March 11, 1988. (App. C

at 24a).

The Court of Appeals held that the

District Court's remand order was not a

final appealable order susceptible to

immediate review. The Court rejected New

Haven's argument that the District Court

had entirely disposed of the matter

before it by remanding the proceeding.

The Court held that the order was not a

final judgment because it "does not grant

Mall ultimately what Mall wants." (App.

B at 8a). The Court found that what Mall

Properties ultimately wants is "the

proper permits themselves and, in the

event of a judicial challenge to the

permits, a judgment adjudicating Mall's

entitlement to the permits." (App. B at

7a). The Court concluded that’ the

District Court order "is but one interim

step in the process towards Mall's

obtaining its ultimate goal." (App. B at

8a).

The Court of Appeals recognized

that, although appeals have been allowed

in some cases from orders remanding to an

agency for further proceedings, those

cases had all involved appeals by the

government or a government agency from

the imposition of a new or unsettled

standard on the agency, which "had no

avenue for obtaining judicial review of ©

its own administrative decisions...."

(App. B at 15a). The Court found the

inability of an agency to appeal from its

own determinations crucial, and held that

this exception for immediate appeals by

agencies from the imposition of a new

legal standard was based on the fact

that “unless review were accorded

immediately, the agency likely would not

be able to obtain review." (App. B at

17a).

The Court concluded that the City of

New Haven did not fall within this

exception. Unlike the Corps of

Engineers, the City will be able to seek

judicial review if the permit is granted,

and if the District Court upholds the

grant, appeal to the Court of Appeals and

argue that the original permit denial was

proper. (App. B at 18a).

The City of New Haven filed a

Petition for Re-hearing and Suggestion

for Re-hearing en banc on March 24, 1988.

The Court of Appeals denied the petition

on April 7, 1988. (App. A la-2a).

THE PETITION SHOULD BE DENIED

The City of New Haven seeks a writ

of certiorari to review a determination

of the First Circuit Court of Appeals on

a procedural issue which is fully

consistent with established law in the

First Circuit and other circuits. Based

on the policy that piecemeal appeals are

to be avoided, it is a well-settled

general rule that remand orders are not

final decisions susceptible to immediate

appellate review. Applying this rule,

the Court below dismissed New Haven's

appeal from the District Court's remand

order for lack of jurisdiction.

The City has demonstrated no valid

ground to disturb the Court of Appeai's

well-reasoned determination. The remand

order is not a final decision, but an

intermediate step in this permit

application proceeding. The Corps of

Engineers has yet to make, in the

remanded proceeding, a determination on

Mall Properties' permit application, and

there may be further appeals from the

Corps of Engineers' decision.

Moreover, the District Court

remanded the proceeding on two grounds:

(i) the Corps' improper denial of the

permit based on economic factors, and

(ii) the failure of the Army Corps of

Engineers to follow its own regulations

in not giving Mall Properties an

opportunity to rebut the supposed

objections of the Governor of

Connecticut. New Haven focuses solely on

the economic issue and completely

ignores the procedural issue. As remand

to the Corps of Engineers was required in

any event to correct this procedural

error, dismissal of the appeal was

appropriate for this reason alone to

avoid piecemeal review.

New Haven argues that the District

Court order is immediately appealable by

the City under governing case law because

the order imposes a new legal standard

with respect to the economic issue on the

Corps of Engineers. New Haven is

incorrect. As the Court below correctly

concluded in its detailed analysis of the

decisional law, the exception to the rule

that remand orders are not immediately

appealable applies only to appeals by

federal defendants from remand orders

which impose a new or unsettled legal

standard on the government or government

agency. The reason for this exception is

that an agency has no avenue for review

of its own decisions, and would have no

later opportunity to appeal.

The City of New Haven does not fall

within this exception to the general

rule. Unlike a federal agency, the City

will have a later opportunity to obtain

review of the District Court order. If

the permit is granted in the remanded

proceeding, the City can raise the

economic issue on appeal together with

any other appealable issues arising from

the remanded proceeding. If the permit

is denied on remand, and no appeal is

taken, the disputed issue will become

moot, and an unnecessary appeal will have

been avoided. If an appeal is taken, the

City can raise the economic issue at that

time.

In any event, the District Court's

ruling that the Army Corps of Engineers

exceeded its authority in basing permit

denial on economic factors is not a new

legal standard requiring immediate

review. The District Court merely

followed this Court's decision in

Metropolitan Edison Co. v. People Against

Nuclear Energy ("Metropolitan Edison"),

460 U.S. 766 (1983) in holding that the

Corps of Engineers may not base permit

denial on economic effects unrelated to

changes in the physical environment. In

addition, the District Court's ruling

requiring the Corps to adhere to its own

il ie

regulations, which the City consistently

ignores, is hardly a novel one. If

appellate review were so urgent, the

federal defendants presumably would have

appealed.

Moreover, the determination of the

Court of Appeals that the administrative

proceedings on the permit application

should be completed, and all appealable

issues saved for a single appeal, does

not prejudice New Haven.

A. Standards For A Writ Of Certiorari

Pursuant to Rule 17.1 of this Court,

a review on writ of certiorari "is not a

matter of right, but ef judicial

discretion, and will be granted only when

there are special and important reasons

therefor." New Haven argues its case

with high blown rhetoric and purple prose

in an apparent effort to capture and

retain the Court's interest, but never

addresses the standards it must meet for

review.

Supreme Court Rule 17.1 sets forth

three categories of reasons that will be

considered in reviewing a petition on

writ of certiorari, two of which are

pertinent here:

(a) When a federal court of appeals

has rendered a decision in conflict with

the decision of another federal court of

appeals on the same matter; ... or has so

far departed from the accepted and usual

course of judicial proceedings, or so far

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court's power of supervision.

= =.

appeals has decided an important question

of federal law which has not been, but

should be, settled by this Court, or has

decided a federal question in a way in

conflict with applicable decisions of

this Court.

New Haven's hyperbole concerning an

alleged conflict in the circuits and the

urgent need for review notwithstanding,

the decision of the Court below is not in

conflict with the decisional law of any

other court of appeals; nor does the

decision of the Court of Appeals involve

an important or unsettled issue of

federal law in need of resolution by

this Court. The Court of Appeals merely

decided the procedural issue of whether

immediate review of New Haven's appeal

from the remand order of the District

Court was permissible. Based on the

applicable law of the First Circuit and

other courts of appeal, the Court

determined that the remand order was not

a final decision susceptible to judicial

review. New Haven will have a later

opportunity for judicial review if the

permit it opposes is granted, or if the

permit is denied, and that determination

appealed.

B. The Court Of Appeals Correctly

Applied The Established General Rule

That Remand Orders Are Not Appealable

Pursuant to 28 U.S.C. §1291, the

Court of Appeals has jurisdiction to

review "all final decisions of the

Gistrict courts....* As recognized by

the Court below (App. B at 8a), this

Court has defined a final decision as

"one which ‘ends the litigation on the

merits and leaves nothing for the Court

to do but execute the judgment.' Catlin

v. United States, 324 U.S. 229, 233

(1945) ."

In dismissing New Haven's’9 appeal

from the District Court's remand order,

the Court of Appeals applied the well-

established general rule in the First

Circuit and other courts that an order

remanding a case to an administrative

agency or board for further proceedings

is not a "final decision" from which

appeals may be taken. | E.g., in <re@

Abdallah, 778 F.2d 75 (1st Cir. 1985),

cert. denied sub nom. Drury v. Abdallah,

476 U.S. 1116 (1986); Memorial Hospital

System _v. Heckler, 769 F.2d 1043 (5th

Cir. 1985); Farr v. Heckler, 729 F.2d

1426, 1427 (11th Cir. 1984); Howell v.

Schweiker, 699 F.2d 524, 526 (11th Cir.

1983); Eluska v. Andrus, 587 F.2d 996

(9th Cir. 1978); Giordano v. Roudebush,

565 F.2d 1015 (8th Cir. 1977); Barfield

v. Weinberger, 485 F.2d 696, 698 (5th

Cir. 1973); Paul v. Secretary of Air

Force, 457 F.2d 294, 297-98 (1st Cir.

1972); Dalto v. Richardson, 434 F.2d 1018

(2d Cir. 1970), cert. denied, 401 U.S.

979 (1971); United Transportation Union

v. Illinois Central R.R., 433 F.2d 566

(7th Cir. 1970), cert. denied, 402 U.S.

951 (1971).

The reason for this rule is

that a district court order remanding a

case for further proceedings "does not

terminate the litigation." Farr vv.

Heckler, 729 F.2d at 1427. In this

regard, the Court of Appeals in Bohms v.

Gardner, 381 F.2d 283, 285 (8th Cir.

1967), cert. denied, 390 U.S. 964 (1968)

observed:

Until the [federal defendant]

acts on the remand we have no

insight as tc what his eventual

decision will be. Thus in the

words of Catlin v. United

States the litigation had not

reached its end on the merits

and there is more for the court

to do than execute the

judgment....

The Court below succinctly stated the

same principle with respect to the

matter of Mall Properties' pending permit

application:

The litigation has not ended.

Jt simply has gone to another

forum and may well return

again.

(App. EB at 8a). The Court thus correctly

concluded that the order remanding this

matter to the Corps of Engineers for

further proceedings is not a final

decision within the meaning of 28 U.S.C.

§1291, and therefore may not be appealed

by the City of New Haven.

New Haven argues that the Court of

Appeals failed to give the requirements

a ea ee eee)

of finality a "practical rather than

technical construction" (quoting Eisen v.

Carlisle and Jacquelin, 417 U.S. 156,

170-71 (1974)) by treating the remand

order as non-final. (Petition at 29,

31). This assertion is unfounded. The

Court of Appeals explicitly focused on

the practical question of whether the

matter should be remanded for a

determination on the permit application,

which could moot the controversy over the

economic issue, and save all appeals

until after a final decision is made, or

permit the City an immediate appeal, even

though such appeal would be superfluous

if the Corps later denied the permit on

other grounds.

The Court of Appeals did exactly

what this Court has directed should be

done and what the City denies was done:

it looked at the actual circumstances of

the case, and balanced the particular

competing interests involved. It is the

City which in actuality is arguing for a

technical and not practical construction

by asserting that because the District

Court decided the economic issue, the

remand order is a final decision,

regardless of the facts and

circumstances of the case which the

Court of Appeals considered.

The fact of the matter is that New

Haven is unhappy with the results of the

Court's balancing process. However, the

City provides no particularized reason

why the Court of Appeal's balancing of

interests should be disturbed. a

“practical construction" of the finality

rule by definition must depend on the

facts and circumstances of each case.

Despite New Haven's fancy rhetoric, the

Court cZ Appeals' construction of the

finality rule, based on the practical

reality of the facts before it, does not

form a basis for judicial review.

C. Remand Was Required In Any Event

To Allow The Corps Of Engineers

To Comply With Its Own Regulations

In arguing that the District Court's

ruling on the economic issue was a final

decision, New Haven completely ignores

the fact that the District Court remanded

the proceeding on two grounds: not only

the Corps of Engineers' improper reliance

on economic factors unrelated to physical

impacts, but also the Corps' failure to

comply with its own regulation that Mall

Properties have an opportunity to rebut

the Governor of Connecticut's supposed

objections to the proposed project.? As

3 In view of its failure to

acknowledge the second ground for permit

denial, New Haven's contention that "all

the parties agreed" that the economic

issue was the single "legal linchpin" of

the permit denial is particularly

disingenuous. (Petition at 32). It is

also untrue, as Mall Properties raised

several other arguments for vacating the

Corps' order which the District Court

found unnecessary to address since it

(continued...)

Eero

New Haven acknowledges (Petition at 30

n.7) "procedural or evidentiary

deficiencies" of this type typically

trigger a remand for further proceedings

to correct the administrative error.

In Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S.

747 (1986), for example, this Court held

that a remand order from the court of

appeals to the district court for further

development of the facts is non-final,

and not subject to appeal to the Supreme

Court pursuant to 28 U.S.C. §1254(2).

The remand order by the District Court to

permit Mall Properties to respond to the

Governor's perceived objection is also a

remand for further development of the

facts, and therefore non-final and non-

appealable.

3(...continued)

remanded on other grounds. (App. D at

34a n.3).

Moreover, permitting New Haven to

appeal the economic issue at this time,

when the case must be remanded to allow

Mall Properties to respond to the

Governor in any event, would result in

piecemeal review. That result is

precisely what the Court of Appeals

sought to avoid, and what New Haven seeks

to achieve.

D. The Exception For Appeals By

Federal Defendants Does

Not Apply To New Haven

New Haven argues that the Court

below has articulated a new rule of

finality in conflict with the Tenth

Circuit's rule in Bender v. Clark

("Bender") 744 F.2d 1424 (10th Cir.

1984). (Petition at 32). This argument

is incorrect, and rests on a

misapprehension of the limited holding of

Bender, which is fully consistent with

the Court of Appeals decision in this

case. The court in Bender allowed the

federal defendant to appeal from a remand

order imposing a different burden of

proof to be applied by the government in

the remanded proceeding because the

standard of proof issue was a serious and

unsettled one, but “most important",

because the government “had no avenue for

obtaining judicial review of its own

administrative decisions and thus well

might be foreclosed from appealing the

district court's burden of proof ruling

at a later stage of proceedings." (App.

B at 15a). The crucial element of the

decision in Bender and the other cases

cited by the City in which federal

defendants were allowed an immediate

appeal is that “unless review were

accorded immediately, the agency likely

would not be able to obtain review."4

4 The federal defendants obviously

recognized this rule when they declined

to appeal from the District Court order

(continued...)

(App. B at 17a).

The Court below found that the City

of New Haven does * fall within the

exception articulatec in Bender. As the

Court noted, the federal defendants have

not appealed from the District Court's

rulings that (1) the Corps may not deny

permits based on economic factors

unrelated to physical changes to the

environment and (2) the Corps violated

its own regulations in not giving Mall

Properties notice and an opportunity to

rebut the governor's supposed

opposition.»

New Haven's overblown rhetoric

notwithstanding, the exception to non-

4(... continued)

and simultaneously moved to dismiss the

appeal.

5 New Haven's musings (Petition at

50) as to why the federal defendants

determined not to appeal is_ sheer

speculation and merits no consideration

whatsoever.

appealability of remand orders’ for

appeals by federal defendants in certain

circumstances does not interfere with the

City's rights as an intervenor. The test

applied by the Court below, consistent

with Bender and other courts of appeals,

is not any distinction between party or

intervenor status, but the ability of the

appellant to later obtain judicial

review. A special rule has been carved

out for government and government agency

defendants because they have no means to

appeal their own decisions.

As set forth in Point E, infra, the

City is not precluded from participation

in the remanded proceeding.

Furthermore, if the permits are granted,

the City may raise the economic issue on

appeal together with any challenges to

the remanded proceeding. The policy

reasons for allowing an immediate appeal

by federal defendants simply does not

apply to New Haven.

E. The Dismissal of New Haven's

Appeal to Avoid Piecemeal Review

Does Not Prejudice New Haven

New Haven claims that the dismissal

of its appeal somehow constitutes a

denial of justice through delay (Petition

at 34), but fails to explain how it will

be prejudiced by further administrative

proceedings on remand, and a

determination on the permit application,

followed by judicial review of all

appealable issues in a_- single

proceeding. The City relies on

Dickinson v. Petroleum Conversion Corp.,

338 U.S. 507 =(1950). In Dickinson,

however, the Court merely noted that

questions of appealability involve the

competing considerations of "the

inconvenience and costs of piecemeal

review on the one hand and the danger of

denying justice by delay on the other."

388 U.S. at 511.

There is no danger that New Haven

will be denied justice by delay. The

Court below expressly held that the City

was not foreclosed from participating in

the permit proceedings on remand, and

"(p]resumably ... can urge environmental

reasons why the permit should be denied."

(App. B at 18a). If the permit is denied

on other grounds, and the denial if

appealed, is affirmed, New Haven would

have achieved its goal, and could not

rationally claim to have been harmed.

On the other hand, if after remand

the permits are granted, the City can

seek judicial review. If the District

Court upholds the permits, the City can

appeal to the Court 'of Appeals and argue

that the initial permit denial based on

New Haven's economic interests was sdhenan

and raise any other objections to the

remanded proceedings. (App. B at 18a).®

Thus, judicial review of the economic

issue raised by the City is not denied;

it is simply deferred so that all issues

to be appealed, if not mooted by the

Corps' determination, may be heard in a

single proceeding.

New Haven's argument that dismissal

of its appeal precludes it from bringing

a subsequent challenge to the remanded

proceedings in another jurisdiction is

without merit. (Petition at 36). The

City could have made a motion to change

the venue of the original action if it

truly believed that some other forum was

6 Although the District Court's

ruling that the Corps of Engineers

exceeded its authority could not be

raised again in an appeal to the

District Court from the Corps' decision

after remand, it may be appealed by New

Haven to the Court of Appeals. As New

Haven is a party in this action, there is

no reason why the Court of Appeals would

refuse to hear its appeal after the

proceeding is completed, and the Court

below so found. (App. B at 19a).

more appropriate. It did not. New

Haven's desire for forum-shopping does

not outweigh the interests of judicial

economy in avoiding piecemeal review.

The City's argument that neither

Mall Properties nor the Corps’ of

Engineers would be harmed if New Haven

were permitted to appeal is incorrect.

(Petition at 37). The piecemeal review

requested by New Haven is contrary to the

interests of both parties in the

expeditious processing of Mall

Properties' permit applications. The

Corps of Engineers has no objection to

the District Court's rulings, and in fact

moved to dismiss the _ appeal. Most

Significantly, it is the Court of Appeals

which would be harmed if New Haven's

appeal were allowed to proceed, contrary

to the policy against piecemeal review.

As the Court itself held:

Were this court now to order

briefing on the socio-economic

issue, decide that issue and

affirm the district court, the

case would be remanded and the

Corps once again would decide

whether to issue the permit.

Likely another appeal would

follow, necessitating another

round of briefs, another

familiarization with the

record, and another opinion.

Our decision on the socio-

economic issue might turn out

to have been superfluous were

the Corps on remand to deny the

permits on independent proper

grounds. More efficient and

quicker, in the long run, would

have been to delay review and

consider all issues at one

time.

(App. B at 20a).

The City never articulates how it

has been harmed by the Court of Appeals'

determination. Although New Haven

complains about the legal costs of

proceeding with the remanded proceeding,

the interests of its taxpayers would be

served if the permit review process

continues in the most expeditious manner,

with appeal of the economic issues saved

until after a determination on the permit

application is made, and if appealed,

reviewed by the District Court. If the

permit is denied in the remanded

proceeding and there is no _ appeal,

New Haven taxpayers will have been saved

unnecessary litigation costs.

Considerations of judicial efficiency

and the financial interests of the

parties thus counsel against disturbing

the dismissal of the appeal.

The Court of Appeals was cognizant

of the City's concerns. The Court

recognized that if review were granted,

and the Court concluded that the District

Court erred on both the economic issue

and the procedural issue concerning the

agency's failure to afford Mall

Properties an opportunity to rebut the

Governor's opposition, "an unnecessary

administrative proceeding could be

averted." (App. B at 21a). However, the

Court concluded that permitting review of

~ trate collie

interlocutory rulings would "undermine

the final judgment rule and open the door

to piecemeal litigation and its

concomitant delay, costs and burdens."

(App. B at 22a). There is no reason to

disturb the Court's careful balancing of

policy concerns.

F. The District Court Did Not Impose

A Radical New Standard Justifying

Immediate Review

New Haven argues that the District

Court established a wholly new standard

for Corps of Engineers permitting

decisions which is inconsistent with

existing law and which is in need of

urgent remediation. The urgency claimed

is non-existent; certainly no factual

basis is provided to support the City's

hyperbole. The absence of any urgency is

confirmed by the decision of the federal

defendants not to appeal. Moreover, the

City's legal arguments are without merit.

New Haven argues that the District

Court misapplies et oli dison,

fails to give adequate deference to

alleged past practice by the Corps in

considering economic impacts, and is

inconsistent with the Corps' public

review regulations and with the Council

on Environmental Quality (*CEOQ*)

regulations. New Haven is wrong on all

counts.

As a preliminary matter, the courts

are not bound by an agency's

interpretation of the scope of its

statutory authority where such

interpretation is contrary to

Congressional intent. See ureau oO

Alcoho obacco and Firearms v. Federa

Labor Relations Authority, 464 U.S. 89,

97 (1983); Nort eri ndustries nc.

v. Feldman, 722 F.2d 893, 898-99 (list

Cir. 1983).

1. Section 10 of the RHA

In any event, New Haven's assertion

that economic impacts unrelated to

physical impacts have been considered by

the Corps since 1933 is without basis.

(Petition at 41). United States ex rel.

Greathouse v. Dern ("Dern"), 289 U.S. 352

(1933), relied on by the City, does not

support its position.” The petitioners

in that case sought a writ of mandamus to

compel the Secretary of War to authorize

the construction of a wharf in the

Potomac River pursuant to Section 10 of

the RHA. The federal government had

enacted legislation authorizing the

establishment of a highway, which would

require the purchase or condemnation by

the federal government of a part of

7 New Haven argues that the Corps

acknowledged a previously accepted

practice to consider economic factors in

the District Court. (Petition at 43).

The memorandum of the federal defendants

cited by the City, however, addresses no

such practice. It only discusses the

Dern case, which does not hold that the

Corps may make permitting decisions based

on economic competition.

petitioners' property and destruction of

the wharf if constructed. At issue in

Dern was whether, under the circumstances

of the case, the extraordinary remedy of

mandamus was appropriate. Holding that

it had discretion to “refuse mandamus to

compel the doing of an idle act" the

Court denied the petition because the

relief sought would be burdensome to the

federal government and without any real

benefit to the petitioners. 289 U.S. at

360. Dern thus involved exceptional

circumstances where construction of the

wharf would have been futile in any

event, and a strong federal government

interest and major project was involved.

Dern does not authorize the Corps to

balance the competing economic interests

of two communities in promoting

development in its permitting process.

Zabel_v. Tabb, 430 F.2d 199 (5th

Cir. 1970), cert. denied, 401 U.S. 910

(1971), contrary to the City's

contention, does not give the Corps

limitless discretion to deny a permit.

In the first place, economics were not at

issue in Zabel. Rather, the Corps had

denied a permit because of the project's

undue impacts to the physical

environment. The court found that the

Corps' consideration of environmental

factors was authorized, and indeed

required, by two other statutes -- NEPA

and the Fish and Wildlife Coordination

Act. Thus, the Corps there "t[ook] heed

of", “effectuate(d]", and did "not thwart

other valid statutory governmental

policies." 430 F.2d at 209 (emphasis

supplied). Zabel did not hold that the

Corps could deny a permit for any

political or economic reason it desired.

In Zabel, the Corps’ followed

specific statutory directives in denying

the permit. In Dern, too, the Corps’

determination was based on statutory

directives respecting the federal

highway project. In direct contrast, the

District Court found that the Corps’

permit denial was not based on any

statutory directive, but was essentially

an exercise of unbridled discretion

without any Congressional authorization.

Moreover, the lack of statutory

authority for the cCorps' conduct was

compounded by the absence of any

relationship between the economic

interests on which the Corps based its

decision, and any physical change to the

environment.

2. The Public Interest Regulations

There is also no_ inconsistency

between the District Court's decision

and the Corps of Engineers' public review

regulations. As the regulatory history

of the public review regulations shows,

the regulations do not authorize the

Corps, under the guise of environmental

permitting decisions, to determine which

of two communities should be allowed to

stimulate economic development.

Until 1968, the Corps administered

Section 10 of the RHA essentially to

protect federal navigational interests. ®

In December 1968, the-.agency provided in

its regulations for additional factors to

be considered in Section 10 permit

decisions. These factors, added "in

response to a growing national concern

for environmental values and related

federal legislation . . .", included:

"fish and wildlife, conservation,

pollution, aesthetics, ecology, and the

general public interest." Deltona Corp.

v. United States, 657 F.2d 1184, 1187

(Ct. Cl. 1981), cert. denied, 455 U.S.

8 See generally “Regulatory

Programs of the Corps of Engineers", 42

Fed. Reg. 37122-23 (July 19, 1977)

("Regulatory Programs").

1017 (1982).

Congress recognized the public

interest standard and its limited scope.

The March 17, 1970 Report of the House

Committee on Government Operations

explained that:

The Corps of Engineers, which

is charged by Congress with the

duty to protect the nation's

navigable waters, should, when

considering whether to approve

applications for landfills,

dredging and other work in

navigable waters, increase its

consideration of the effects

which the proposed work will

have, not only on navigation,

but also on conservation of

natural resources, fish and

wildlife, air and water

quality, esthetics, scenic

view, historic sites, ecology,

and other public interest

aspects of the waterway.

H. Rep. No. 917, 91st Cong., 2d Sess. at

5 (1970) (emphasis supplied).

Section 404 of the CWA was enacted

as part of the Federal Water Pollution

Control Act of 1972 ("FWPCA"). In 1974,

in order to implement Section 404 as well

as the requirements of other recent

federal legislation, the Corps

incorporated into its permitting

regulations additional factors to be

weighed, including "economics, historic

values, flood damage prevention, land use

classification, recreation, water supply,

and water quality." Regulatory Programs

at 37123 (emphasis' supplied). See

Jentgen v. United States, 657 F.2d 1210

(Ct. Cli. 1981), cert. denied, 455 U.S.

1017 (1982).?

Although the regulations do not

define the term "economics," the Corps'

discussion preceding its 1977 regulatory

amendments makes it clear that this new

factor, like the others, was added in

response to new federal legislation.

Regulatory Programs at 37122. See also

9 The "economics" factor actually

appeared for the first time in the

interim regulations of May 10, 1973. 38

Fed. Reg. 12217 (May 10, 1973).

Deltona Corp. v. United States, 657 F.2d

at 1187. The new legislation included

FWPCA, the Marine Protection, Research

and Sanctuaries Act of 1972 ("MPRSA"),

the Coastal Zone Management Act of 1972,

as amended ("CZMA"), and NEPA. 42 Fed.

Reg. 37123 (July 19, 1977). Thus, the

scope of the term "economics" must be

ascertained by reference to such

legislation.

None of this new legislation,

however, anticipated or authorized the

consideration of generalized economic

factors. The FWPCA established Section

404, which provides only for an

assessment of the economic impact of

filling on the resources of a particular

disposal site.

Pursuant to Section 404, Corps'

permitting decisions are governed by

guidelines developed by the Environmental

Protection Agency ("EPA"). 33 ¥.8.C.

§1344 (b). These guidelines are to be

based upon criteria comparable to those

developed for ocean discharge permits

pursuant to Section 403(c) of the Clean

Water Act, 33 U.S.C. §1343(c) (1). The

economic considerations within the ocean

discharge criteria are limited to the

economic values associated with the site

to be filled (i.e. the "disposal site").

It follows that the economic criteria

permissible under Section 404 are also

those related to the disposal site.

Section 403 articulates certain

general criteria which must be reflected

in the ocean discharge guidelines. Among

them are two which refer to economics:

pollutants on esthetics,

recreation and economic values;

x «

(G) the effects on alternate uses of

oceans, such as mineral exploitation

‘and scientific study.

33 | @.uhe. See tes (3). The EPA

guidelines developed to implement’ the

ocean discharge criteria identify the

following "economic" considerations:

Potential for affecting the

recreational and commercial

values of living marine

resources ....

40 C.F.R. §227.17(a) (2). The factors to

be assessed in ascertaining the economic

effects include the

(a) Nature and extent of

present and potential . .

commercial use of areas which

might be affected by the

proposed dumping;

se 2 @

(h) Presence in the material of any

constituents which might

significantly effect living marine

resources of recreational or

commercial value.

40 C.F.R. §227.18. ee also 40 C.F.R.

$227.19. In short, Section 404

instructs the Corps to base permitting

decisions on certain criteria, and the

economic aspects of those criteria are

limited to effects on commercial values

and uses of the disposal site. The Act

does not authorize the Corps'

consideration of broader economic factors

in the permitting process. This limited

scope of economics was confirmed in

Buttrey v. United States, 690 F.2d 1170,

1180 (5th Cir. 1982), cert. denied, 461

U.S. 927 (1983).

The MPRSA provides for the Corps to

issue permits for the transportation of

dredged material for the purpose of

disposing it in ocean waters. The

governing provision, Section 103 (33

U.S.C. §1413), allows for a= permit

where, inter alia, the dumping will not

unreasonably impact the economic

potentialities of the disposal site. As

in the ocean discharge criteria, there is

no generalized economic standard. The

legislation is, of course, inapplicable

to Mall Properties' application.

Likewise, the CZMA (26 U.6.C.

§1451, et seg.) is inapplicable to the

North Haven Mall site. Finally, NEPA is

a procedural statute which does not

expand the Corps'! substantive

decisionmaking to incorporate general

economic effects of enhanced competition.

See Strykers Bay Neighborhood Council

ne. v. Karlen, 444 U.S. 223, 227 (1980);

Cape May Greene, Inc. v. Warren, 698 F.2d

179, 188 (3d Cir. 1983).

Consequently, the legislation which

precipitated the inclusion of the

"economics" factor in the "public

interest review" neither anticipates nor

authorized the consideration of broad

socio-economic concerns. Rather, the

economic concerns of the legislation

applicable to the Corps' decisionmaking

have consistently and uncategorically

been limited to those directly related to

the filling of the disposal site and not

to indirect secondary effects of the

ultimate development activity.

36 NEPA

Nor is there any inconsistency

between the CEQ regulations and the

District Court decision. The regulations

merely define "effects" to include direct

and indirect effects of a proposed

action. 40 C.F.R. §1508.8. The

regulations do not require or even

suggest, as claimed by the City, that

effects not proximately causally related

to a proposed action are to be

considered under NEPA. Nor could the CEQ

regulations be construed in such a manner

in light of the Supreme Court's decision

in Metropolitan Edison. Since the

Metropolitan Edison decision occurred

subsequent to the promulgation of the

relevant CEQ regulations, Metropolitan

Edison and the regulations must be read

in para materia; the District Court's

adherence to this Court's decision can

hardly be considered a marked departure

from governing law.1°

New Haven claims that Metropolitan

Edison involved only the threshold

question of whether an environmental

impact statement ("EIS") should be

prepared and that the District Court

applied Metropolitan Edison to the

impacts to be considered in an EIS "for

the first time." (Petition at 15). New

Haven also argues that subsequent courts

have limited Metropolitan Edison "to the

threshold question of whether NEPA

applies in the absence of recognized

impacts." (Petition at 45). The City's

interpretation of Metropolitan Edison and

its progeny, and its attempts’ to

distinguish these cases, is incorrect.

10 To the extent that the Corps'

public interest review regulations are

based upon NEPA, Metropolitan Edison had

the same effect; thus the District

Court's decision, as with the CEQ

regulations, hardly constitutes a radical

departure from existing standards.

It is clear from the Metropolitan

Edison opinion that this Court did not

intend to limit its holding to the

threshold question of whether an EIS is

required. At issue in that case was the

interpretation of Section 102 of NEPA, 42

U.S.C. §4332(C), which directs all

federal agencies to evaluate the

"environmental impact" and any

unavoidable adverse "environmental

effects" of agency action significantly

affecting the quality of the human

environment. This Court held that the

terms “environmental impact" and

environmental effects" include "a

requirement of a reasonably close causal

relationship between a change in the

physical environment and the effect at

issue." 460 U.S. at 774. There is

nothing in the opinion to suggest that

the Court's general interpretation of

this statutory provision was not intended

to apply to all NEPA issues, including

the types of impacts that may be

considered in an EIS.

A critical factor, which the City

has overlooked, is that the term

“environmental impact" as used in § 102

of NEPA, has the same meaning whether

applied to the threshold question of the

need for an EIS or the contents of an

EIS. The City wants to draw an

artificial distinction and assign a

different meaning to the same words

depending on the stage of the NEPA

process solely to bolster its position.

It is inconceivable, however, that

Congress could have intended such an

irrational construction of the statute.

Moreover, the City's reliance on

Animal Lovers Volunteer Association, Inc.

vy. Weinberger ("Animal Lovers"), 765 F.2d

937 (9th Cir. 1985) and Pacific Northwest

Bell _ Telephone Co. v. Dole ("Pacific

i T

Northwest"), 633 F. Supp. 725 (W.D. Wash.

1986) for the proposition that

Metropolitan Edison has been limited to

the threshold question of whether NEPA

applies is misplaced. (Petition at 45).

In both cases the plaintiffs challenged

the adequacy of the EIS. Animal Lovers,

765 F.2d at 938; Pacific Northwest, 633

F. Supp. at 726. Moreover, in Olmstead

Citizens For a Better Community v. United

States, 606 F. Supp. 964 (D. Minn. 1985),

aff'd, 793 F.2d 201 (8th Cir. 1986), the

district court applied Metropolitan

Edison not only to the threshold question

of the need for an EIS, but also to its

alternative holding that the document

prepared by the agency met the standards

for an EIS, and was adequate. 606

F.Supp. at 974.

These authorities demonstrate that

the courts have applied the "causally

related standard" of Metropolitan Edison

to both aspects of the NEPA process--

the threshold question of the need for

an EIS and the scope of an EIS. The

District Court's application of

Metropolitan Edison falls squarely within

this framework, and is fully consistent

with Metropolitan Edison and its progeny.

The District Court's reliance on

Metropolitan Edison is also fully

consistent with the Second and Ninth

Circuit cases cited by the city.}1

Rochester v. United States Postal

Service, 541 F.2d 967, 973 (2d Cir.

1976); Davis v. Coleman, 521 F.2d 661,

676-77 (9th Cir. 1975); Bersani v. EPA,

il Contrary to New Haven's

assertions, Mall Properties did take

issue with the EIS prepared by the Corps,

by giving comments and critiquing, among

others, the economic issues discussed in

the EIS. In addition, Mall Properties

argued in the District Court that the

economic effects found by the Corps were

overstated. Thus, Mall Properties did

challenge the Corps' analysis of the

economic issue.

Nos. 87-6275, 87-6295, (2d Cir. June 8,

1988). Rochester v. United States

Postal Service involved a decision

committed to agency discretion; e.g.,

whether to close or move aé federal

facility. There was no third party

permit applicant. In that circumstance,

unlike the instant matter, the federal

agency is not regulating the private use

of property, and the agency can consider

economic factors. The Corps of Engineers

in environmental permitting matters is,

however, not vested with such unfettered

discretion.

Davis v. Coleman involved the

proposed construction of a major highway

interchange in an agricultural area.

The Court's holding that the agency was

required to consider the environmental

effects of the development which would

result from the construction of the

interchange is consistent with the

ramen tnntieee eee

Metropolitan Edison standard. The impacts

of urban development are physical changes

to the environment which are at _ the

heart of NEPA and which this Court found

appropriate for consideration in an EIS,

unlike the attenuated economic interests

considered by the Corps. In addition,

there was a direct causal link between

the construction of the interchange and

the changes to the physical environment

which induced growth would bring. The

opinion does not authorize the Corps to

consider purely economic factors in its

permitting decision. Moreover, both

Rochester and Davis were deciaed prior to

Metropolitan Edison. To the extent they

differ from holding of Metropolitan

Edison, the cases are not controlling.

Bersani v. EPA, which arose under

Section 404 of the CWA, and not NEPA,

involved the issue of alternative sites

for a proposed shopping mall and the

relevant time period for determining

whether an alternative site is available.

The question of whether more than one

mall could survive in the market area for

purposes of alternative site analysis

(slip op. at 37063) has nothing

whatsoever to do with the scope of the

Metropolitan Edison standard or the

question of whether the Corps has

statutory authority to deny a permit

based on economic factors. Bersani

related to the practicality of

alternatives, not impacts.

The City's claim that the District

Court's decision and supposed misplaced

reliance on Metropolitan Edison has

"imposed a new legal standard" (Petition

at 43) is sheer hyperbole. The District

Court announced no such standard. The

District Court merely held that in this

particular case, the potential social and

economic effects considered dispositive

by the Corps lacked the requisite

proximate causal relationship to the

proposed shopping mall, and that the

Corps had thus considered unlawful

factors in its determination.

The City's assertion that’ the

District Court substituted its own

judgment concerning the factors to be

considered by the Corps, and took upon

itself the role of political decision

maker, ignores the Court's well reasoned

determination and is entitled to no

consideration. Similarly, the assertion

that dismissal of the appeal placed "the

fate of thousands of acres of wetlands

within New England" at stake without

appellate review is nonsense. (Petition

at 47.) There is nothing in the District

Court's decision to preclude

consideration of direct physical effects

on the wetlands in the remanded

proceeding. To the contrary, the

District Court noted that protection of

the physical environment and natural

resources should be the focal point of

the Corps decision in the remanded

proceeding. (App. D at 76a.)

We would respectfully suggest, in

any event, that the City's concerns, to

the extent that they have any validity,

are more properly addressed in the first

instance by the Corps of Engineers and

not by the Court of Appeals. The Corps

is in a better position than the Court

to determine the weight it should accord

to various factors in light of the

District Court's opinion.

CONCLUSION

For the foregoing reasons, the

petition for a writ of certiorari to the

United States Court of Appeals for the

First Circuit should be denied.

Respectfully submitted,

Daniel Riesel

460 Park Avenue

New York, New York 10022

212-421-2150

Counsel for Respondent

Sive, Paget & Riesel, P.C.

Attorneys for Respondent

Mark A. Chertok

Karen E. Gross

On the Brief

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.