Petition for Writ of Certiorari — Parker v. Citizens Committee for the Hudson Valley

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" SUPREME COURT On

Supreme Court of the Hntivd State :;

_OCTOBER TERM 1970» 3

Winacoke W. Parker, individually and as Comn't: “joner

of the Departme nt of Transportation of the “State of

oe Eee Te oe Se

Pitan ! Be | = , Petitioner,

and Join Voupry indig achintly and as ‘Seeretary of Trans-

portation of the Uiited States; Warrer J. Hicker. in-

hing) and as Secretary of the {nterior ofthe Wnited

States, STANREY S. Resor, individually and as Seeretary. .

‘of the Army of -the’ United States, and Wituia F:

CASSIDY, individually and as ‘Chief of engineers, Corps

of Engineers of the U.S. Army, ;

agaiust

Citizens COMMITTEE FOR THE I] ?psON VaLLey, Sierra Cuvs.-

’ Respondents.

= .

+ *.

“4

PETITION FOR A WRIT OF CERTIORARI TO JHE

UNITED STATES COURT OF APPEALS FOR THE

fe _. SECOND CIRCUIT -

harris J-hernowitz”

Attorney General of the

int State of New York

"a Attorne’ y for Petitioner

‘SO: Céntre Street . ;

‘ New York, New-York 10013-—~

Samuen.aA. Hirsnowirz-

_ First Assistant Attorney General-

Jorn Il. Sacus-

Assistant Attorney: ’ General °

of Counsel.

AND THE VILLAGE op ‘Tafesrown, New York, —-——————

/ ° ‘TABLE OF CONTENTS

2 PAGE

Citation to the Opitions Below. sy ee PLS Ree MB irg rian

RI ae rec Cec aN faut yt ea yaaa weedc A hoe :

Se af SS Pee eH cab A See ae tae

\ ’ ; .

Statutes Involved ....... 00.2... pre tae ee eee

: * . : ee

Statements of the Case .....0..... egy At Coa” SPORE oe

aa a cecal wash ie Spike

RO eet hee ikaeaes pa cueenee een evade benans so ee

Reasons for Granting the Writ .......... ‘eetaw ee ht 7

eas F — determination af the Courts- +yélow that

‘dikes’? are involved in the construction of thd. .— .

‘Expressway conflicts with prior decisions of this >

Court,. gives a strained and illogical interpreta-

tion to Sections 9:and 10 of the: tivers and Har- |

hors Act of. #899 and violates a lone- standing ad-. NG -

.__ministrative interpretation of the statutes in

GO on i as ee ee os a

. The mere possibility that the Hudson River Ex- .

; pressway midy involve construction of a cause- . ad

‘way within the meaning of Section 9 of the oe

* Rivers and Harbors Act of 7899 did not give the .. 4

ears helow authority to enjoin the issuance of. 1?

. a permit under Section .10 of that Act . 1 Aes al

3. The determination of the Courts below that the §”

plaintiffs helow, lacking a tegally protected inter- |

est, lacking any injury and lacking a specific stat-

ute on which to bring suit, have standing to chal-

lenge the actions -taken by the State and Federal

officials was an unwarranted - ‘application of en,

cent decisions of this ‘Court ......... Ere are :15

: : 2

li _.-*”. TABLE OF CONTENTS

ee EIEN Ne ee, Fa rar Fy al PAGE

Conclusion Ligue tere rts phar ree IOI el ies IS

cee nae, rs a ;

* AY ppendix ee Set Mk We i ee ee Mie et “da.

Judie nt of Affirmance ESO TET CL Te ey Wa

‘Appe nulis ea or aa RE. weary ete ee wee Dla

: Append C MwA A NES ee AO KM ele alee 6 BERS ee Re OR Da

Cases. s PAGE

lela Life luc. Co. v. Hayworth, 000 U.S. 277 (4987) 14

Barlow vy. ( ollins, BOT U, s. Ry. CAI) cc ee vost, vo

Bloch River Re qulating Districi v. Adirondack League

* Club, Wi Nz Y¥. 475 (1954) appeal disinissed do

Sar 58) eee ee De POOLE POE pee

Boston Sand Co. v. U.S ate U. S. 7 1 (Uses Prine 5 |

Citizens Commillée, et alo. we olpe et al., 425 I. 2d

Sie & at Cire 197 0). SP sAe ew Ses SECT ee Py eee ek ae : y

C ifizons C anmitte: ebakveV one et al., 302 F. Supp. a

283 (S.D.N.Y, 1969) /-..: eerews ee re Ne ee? 2

Cytizens Committec, chal aw V ol pe, el al. 297 I’. Supp.

SO4 (S.DIN EY, 1962) bien da wana kay Meee a yoru i)

~ Cotnty of Albany v. Hooker ry 204 x. Y. ,o (1912) fe, OMe

Data Proc SATNY.- Service v. Fann. “307. U. Ss. 150

tee A VO cae npr ane itasena ‘sn a5 Ae AT

Flast v. Collen, 393-US, 83 (1968) mee Rees

TABLE OF CONTENTS eee. cane

Glus v. Brooklyn Terminal, 359 OF S. 231 sa ete are

Golden v. Zwickler, 394 U. RIES (TIO) 8 Ee a i as sf 14

: Mastéo Plastics Co. v. Labor Bd, BHO U. a 2A) (1956) ig) See

| Muserat v. U. 8.219 U. 8. 346 (1911) lee 1

N.L.R.B. v. Coca Cola Bottling Co., 850 U. 4, re

(19: 56) Mieke meee is , SN Og Fee Paks Soret ee

“Richards ve. §., 369 T.8. ! Ts een en aera ©

F B. 2d 605 (2d Cir, BIOS} cos 2 ee ina yan 17

Vila v. Tallman; ¢ 380 UL S. 1, 16 (1965). oa |, eo Pre ee

U nite d States v. Midwe sl gil Co., 236 U.S. 459 (1913 3) eon

United State: s v. Re veaic Steel Corp., 362 U. S. 482

A ee eh pis ee

United States v. U nion sane Railw ay; sa ®s B..152

Pee yc eee x atas he Ra wen ka Vee a

Wisconsin v. [linois, 278 U.S. 367 (1929) calty Ga aty Ry A

STATUTES |

nike PAGE.

Administrative Pr ocedure Act, 5. USC. §§ “OL. et fem. 1

(Supp. LS Sey one ROREREST SEO CRIABA ES aS boa focal

sa ree of ‘Pransporation het, 49 U.S.C.

NSS oye Se Oe Sige G15

Rivers and Harbors Act of 1899, see: 9, 33..U.S.C.

SI a ccac cece cr elapeageeess 86,9) 11,13 13,44, 15

: Rivers and Harbors Act of 1899, °s see. 10, 33 U.S.C. -

— verry Sle pune aaa ys 3, 7, 9,11, AB, 14 15.

2 iv. hee _ TABLE OF ‘CONTENTS | :

7 . uF ; Ovrytons aie

15 Op. A.G. 515. (STS) , dee S50. wea coe, Viva buces

Tb Op’ A. G.d26-(1880) ooo : beeen las

16°Op. A. G2 479. (1880) Gre spi ee

OE Op, Be B10 CI) isaac lags nce res ees

i .

- waren

ENT 2

* . - ¥. . .

; }*

Chambers, Tochnic ‘al Die tions ur v3 ord. Rey ise Hdition

* with Suppleme RE CIDOO) vicgx paods aku eles es:

Websters, Third New Eiaces pele y (1966),

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‘12

, PAGE,”

| Supreme Court of the ie States

oa ee oct OBER Tis a 1970

Tato opore W. Parker, adividaiie and as beet ar oO

“of the Department * T Pransportation. of the State of °

New —— on OS

Z ie sate eee 3 ; Putin.

‘A

a iw . ‘ ‘ _ i Ps 1 \

_ dividually andias Secretary.of the Interior of the U nited

‘ States, Sraxney S. Resor, individnally-and_as- Seerctary

of the’ Army of ther United’ States, and. Wititiam F.

Cassiby, individually and ‘as: Chicf ef Engineers; Corps

of Engineers of. the U.S. Army, :

against re Peta

. Citizens ComMitree For THE Hivpson Vatrnry, Srerra Cuvsp

“AND THE Vi=nacE or Tarryrown, ne w York,

' Re spondin ts.

“PETITION FOR A WRIT OF CERTIORARI TO THE |

VRIES STATES COURT’ OF APPEALS FOR THE:

° SECOND CIRCUIT |

. A vs ae : oe \

Petitioner, the Cénniiitilbineg of. the. Depatigent of

Transportation of the State of New. York, prays’ that a .°

writ of certiorari issue to review the: judgment of the

United. States Court of Apjicals for the Second. Cireuit in

the consolidated. cases of Citizexs Committee for the Hud-

‘ son Valley, thé Sierra Club and th e a illage.of Tarrytown, :

ee Sao ae aan

| t 7 oe “Ly

< ‘and Joun Vor. PE, individually and as: Sceretary of Trans- ©

"portation of the United States, Warrer J. Ticker, in-’

. New York vy. John Volpe et al. and J. Burch MeMorran et

al, (judgment entered: on April 16, 1970). This decision

affirmed a judgment of the United States Distriet Court

for the Southerm District of New. York, dated i 205

1969,

Citation to the Opinions Below

: The opinion of the Court of Hens us is reported at $25,

Po Ov {28 1, 1970), It ix annexed heretogs Appe marx |

‘A’? to this petition. The District Court opinion is, re-

ported at 302 F. Supp. 283 (S. DN.Y. 1969).° It is annexed

hereto as Appendix **B’’ to this petition. ete re

Jurisdiction

— The judeme nt of tlie Court of Appeals. was entered on

April 16, 1900. . |

The sertsilie tion.of this court rests on 28.U. aC. § 1254(1).

Questions Presented

ee & Whether a federal court can enjoin the Corps of Hngi-

neers from issuing a permit under Section 10 of the Rivers.

- and Harbors Act of 1899, 33 ULS.C, see, 403, to deposit fill

ee and-constenet babkheads inthe Hrdson-fhtver, by mvokmg

Section 9 of that Act, 33 U.S.C. see, 401, which relates to

the construction of dikes,

- Whether Saétion 10 of the Rives 4s and Harbors Act’

S99, 33 EOS.C. see. 403, authorizes the Corps of lngi-

necrs to erant a rosy to fill and construct. bulkheads in

the Hudson River without the prior specifie consent of

Congress.

3. Whether a federal court can enjoin the Corps of n-

ginecrs from issuing a permit under Section 10 .of the

VA ) 6)

e . Jv °

Rivers and Harbors Act of 1899, 33°U.S.C. see. 403. te de-

posit fill and construét bulkheads in. the Hudson River on:

the mere possibility that the State of New York, may, on

-some future occasion, determine to construct a catiseway.

which requires a permit under Section 9 of the Act, 33

U.S.C. see. 408.

4. Whether respondents, lacking a legally protected in-

terest and lacking a specific statute on which to’brine suit,

had standing to challenge ‘the ‘actions taken by the peti-

tioners.

Statutes Involved

| Section 9 of the Rivers aid Harbors Act of 1899, 80 Stat.

1151,.33 U. 5. C. sec. 401 ef seq., provides in part (98 U.S.C.

‘sec. 401): |

It shall not be lawful to construct or commence the

construction of any bridge, dam, dike, or causeway

over or in any ‘port, roadstéad, haven, liarbor, canal,

navigable river * *"* of the United States until the

consent of Conyress to the biilding. of suclr structures

shall have been obtained and until the plans for the

same have been submitted to and a pproved by the

me Vor Engineers and by the Secretary of the Army;

a —¢-e

and Section 10 of the Act provides in part 3. U.S.C. see.

403) : :

The ereation of any. obstruction not affirmatively au-

SEeIETSRD Ra cysts SA ess-to-theamvigabic capacity of any

of the waters of the United States is prohibited; and

it shall not be lawful to build or commence the building

of any wharf, pier, dolphin, boom, weir, breakwater,

bulkhead, jetty or other structures in any * * * navi-”

gable river, or other water of the United States * * *

: except on pate recommended by the Chief’ of IEngi-

York State Department of T: ransporiadion Tas heer in the:

process, of designing a roadway whieh will satisfy the de-

‘neers and authorized by the Sceretary of the Anuay;

and it shall not be lawful to excavate or fill Fin amavi-

. gable waterway of the United States} ** *‘unkess that

walk has hoon recommended by the Chief of Engi-

neers and’ authorizert by the Secretary of the Anny

‘rior to beginning: the sake. . ,

: tatements of the Case

/ ‘

Faets

The Hudson River Expressway is 2 propastd six Jane

roadwi ty to be built tloay with and through a proposed °

Wverfront park hetwetny Tarrytown and-Crotdnville, New

York. > The FOR UWA is bene « crstructed in response tos

an extremely erifiéal trattie situation. whieh hes been de-

veloping in) the “Parryiown- rotenville corridor over a

ninbe rool yeatss Tt is undisputed that the oxisti ne route

serving this « areas’ Us. Route Q is incapable of handling:

he ever-ines singe ie of tratiie; latest staUsties eon. *

feta lvoe aes Aa this route has the highest accident rate

of any roadway in the vicinity. Hlence, the proposed 10.

nile EXpressway has received top priority from State of-

fictals., — . , x" '

thaws of New York, 1965,

as iunended by Chapter f28 of the Laws of New York,” »

1966, N.Y. Afi ivhway Law © 540-6 the State Legislature

-enacted the Expressway Law to provide for a new road-

way in the Route 9 corridors Since that time. the New

mands of the T arrytown-:Crotonville. tra fie corridor. It

should he noted at thie outset that fie proposed express ay

is an entirely intrastate rocdway. No federal funds are in

any way involved in its construction.

)

However, since a L portion of the roadway is to be built

upon filfto be placed. in the Tdgon River,* it was neces-

ssary for the New York State Departine nt of Tr ansperta- >

tion to, obtain an appropriate permit. from the Corps “of

Knugineers, United States Army, since the C orps (

diction over the Huson River, a navigable body of water,

After receipt of New York’ s appheation for a permit, the

Corps of Engineers proceeded to study -the TExpiressway.

project. Asa result of their studies, hearings, consulta-

tions with other federal agencies, ineluding the United

States Department of Interior, it was decided to grant the

necessary permit to the New York State Department of

Transportation, |

las. Juris

The permit gives permission to tlie’ New York State De-

partinent of Transportation: | '

| SITS dredge and, place fill, protected hy stone ape

protection and to constrict piers and bulkheads with

floats and mooring piles; the dredged matter to Re

suitably etained ly dikes to, prevent its retum jnto

the waterway:.in the Tudson’ River, between Tarry- . |

town and Ossining, Westchester County: New York

subject: to certain conditions not pertment hereto.’

Lumediately vatter the Corps. of lngineers issued "the

permit’on January 27, 1969, respondents commenced these

actions anf sought a preliminary imfimetion fo restram

the delivery’ of such permit. Jurisdiction, was atlescdly—

based on thie Administrative 1 procedure Act, 3 U.S.C. $5 701

ef seq. (Supp. IV). dogs |

This motion for a pre Timinary " Wjunction was ‘dénied by

the Distrie Court. Citizens omilittee for Me Alidson Val-

ley v, Volpe, 297 F. Simp. S04 (S.DeX.Y. 1969). The United

States Court.of Appeals for the Second Circuit atiirmed

the denial of injunctive relicef-in an unreported decision on

March 19, 1969,- but ordered the entire matter remanded

* The proposed fill is in the area of the Tappan Zee, the widest.

part of the Hudson River (approximately 11.600 feet wide). The

fill will extend between 300 feet-and 1350 feet into the river, de-

pending on its location, with an average incursion of 605 feet,

e oy fy

to the District Court for an early. trial pursuant. to fhe

applicable rules of the Court.

Thereafter, a trial was held on all issues raised in ‘the

complaints. During the trial, which consunied 29 days,

the court heard over 4,000 pages of testimony by ovér 20 ,

witnesses ard examined well over 1,000, pieces of docu-:

mentary evidence, including studies, maps and-dixgraims

of the proposed expressway.

In its decision dated July 11,1969, the Court ruled that

it had jurisdiction to entertain the actions, that plaintiffs

had standing to raise the issues presented to the Court,

that the Corps of Engineers exceeded its statutory author-_

ity in issuing the fill permit to the New York State De-

partinent of Transportation and that thé Highway Law

-of the State of New York, insofar as-it delegated certain: |

powers to the Commniissioner of Transportation, was riot

unconstitutional, “A ¢opy of the District Court’s decision

—————

mee ie

ix annexed hereto as Appe mndix. Bcd: Si eae R

Asa result of the Distr ict Court’s devision; an order was

entered on July 25, 1970. declaring that the construction of

the: Hudson River laxpressway by the State of New York

. involves the construction of “dikes?? and cause ways Within

the meaning of Section 9 of the Rivers and Harbors Act

of 1899, 30 Stat. 1151, 83 U.S.C. sec. 401 and that con-

struction of said ‘*dikes’? requires the consent of the Con-

cress’ af the United ‘States and the construction of -said

causeway requires consent of the Congress of the United

States and the approval. of the Seeretary of Transporta-_.

“tion-of the United States pursuant to the Department of.

wT rans portation Act, 49 U.S.C, § 1055(2).

‘The Court: further decreed that, as a resubt of such

holding, the Corps of Engineers had exceeded its statutory

-anthority in issuing the permit f the State of New York

and said permit was declared null and void. The. order

enjoined the Corps of Tngincers from issuing a pemnit to

the State of New York until the requisite approvals were

obtained from the Congress of the’ United States. and

from the Secretary of Transportation of the United States

e Ai pe ae

. ( | :

~. @£

_and the State of New York-was pérmanently enjoined from

proceeding in any matter with construction of the Hudson

River: Expressway untid the tequisite, federal approvals

were obtained for the construction of the “‘dikes’? and

‘auseway. .A copy of the order of the’ District Court is

annexed hereto as appendix C.

On appeal to the United States ‘Court of Appeals for the

Seeond Cireuit, the decision of the Iistrict CouFt was af-

firmed in an opinion dated April 16, 1970, the Court. of

* Appeals accepting the District Court's determination as to

‘the standing of plaintiffs and the pre semee of ‘dikes’? and

a causeway involved in the construction of the: Hndson

River Expressway. A copy of the decision and judgment

of the Court of Appeals is annexed ‘hereto as Approndix

“eé A”,

r 7

_ Reasons for Granting the Writ

1. The duhcaibisdiilii of the Courts below that

“dikes” are involved in the construction of the-

Expressway conflicts with prior decisions of this

Court, gives a strained and ‘illogical interpreta-

tion to Sections 9 and 10 of the Rivers end Har- |

ing ad-*

bors Act of 1899 and violates a.long-sta

- ministrative © interpretation of the statutes in

=~ question. . :

The permit in-qrestion was issued under the authority

of Section 10 of the Rivers and Harbors Act of 1899, 55

U.S.€. see. 403. /Pliere-is no.question that the placing of

fill and the construction of bulkheads in a navigable water-

way are specifically named in Section 10 as activities per- .

missible’ with approval of the Secretary of the Army

-alone—not requiring a spécial authorization by Congress.

This construction of Section 10 oe confirmed by this

Court in Wisconsin v. Ilingis, 2 278'U. S..367 (1929), where —

-it was stated (at 412-414):

. * * * Congress, having stated in See tion 9 as to. what

‘particular: structures its specific consent should be re-

quired, intended to leave to the. Seeretary of War,

acting on the recommendation of the Chief of En-

fineers, the determination of what should be approved :

and authorized in the classes of .cases. deseribed in

‘the second and third-clauses of Section 10. Tf the see-

tion were cohstrued to require a special authorization

by Congress whenever in_any aspect it might be: con-

sidered that there Was an obstruction to navigable’ c

_paeityy none of the undertakings spec ‘tically ores

for in the second and third-elauses of Sec tion 10 could

safely be undertaken without a special authorization:

of Congress. We dotnot think this was intended.- The

Supreme Court of. Maine in Maine of cater Co. x. Kuick-

bocker Steam Towage Coa., 99 Me.473, took the sanie .

general: view. in construction ‘of ne same Sseetion. It

held that the broad words of the first -clause. of that

section were not intended to limit the second and third

clauses and that Congress’s purpose was a direct pro-*

‘hibition of what was forbidden by them except when

affirmatively approved by the Chief of E ne¢ineers and

the Sceretary of War. We concur jin this view.

The true intent of the Act of Congress was that

unreasonable obstructions to navigation and navigable

‘apacity were to be prohibited and in the eases de-

seribed in the second and third didads ot Section 10,

the Secretary of War, acting on the recommendation

of the Chief, of Engineers, was authorized to deter-

‘mine what in the particular cases constituted an un-

reasonable obstruction. ' an

This construetion of Scétion 10 is sustained by the

uniform practice of the W ar Departme nt for nearly

thirty Vestn, Nothin re HH

HeeomeHieing in-interpre=

tation - a doubtful or ago logs statute. United

States ve Minnesota, 270 U. S. 181, 205; Su ending V.,

W ialiesion Wafer Power i 265 U. S. 322, 331;

‘Kern\River Co, ve United Slates, 257 U: S. 147, 154,

United States ve Burtington & Missouri River R.R.,

ae oe |

98 U. 8. 334, 34 , United States. N, Le geetate 91 U.S

. 2205. 2283 Fat v. Davis, 253 . 612, 627.

The practice is shown by dis 4 opinion of the Acting -

Attorney General, transmitted to the Secretary of

War, 34 Op. Atty. Gen. 410, 416. The Secretary of

War acted on this view on-\May 8, 1899, about two

months after the passage of the Ket. This was fol-

pwed by -the permits subsequently eranted down to

March 3, 1925. The fact that: the Secretary of Ww ar

acted on this a Was ‘Inade known to Congress by

many Tepor i” ‘

488, 491 (1960). ‘The phy sical action authorized here was

the. fil ling of a portion of the Hudson River and tle con-

struction of bulkheads to prevent the fill from sliding into’

the River—neither action requiring the special consent of

Congress. The mere fact that the permit’ refers to.

Bers ears not change the applicability of Section 10

‘alter the fact that the physical action proposed under

the permit does not requiré the consent of Congress.

The District. Court’s determination that. “dikes”? are

involved in the construction of the Expressway is based

upon the: following reasoning which was adhered to by

the Court of Appeals: Since the permit application sub-

mitted to the Corps of Engineers mentions—the werd

“dike, there is therefore a dike and consequently, the

Corps of Engineers has no author ity to issue. the permit.

The lower court’s overly simplistic approach to the word

**dike’’ violated an elementary principle of statutory con-

struction, indicated that the court failed te ead Sections

Cf. United States v. Re “public Steel Corp.,. 362.1. S s. 482,:

401 and 403 as interdependent, failed to take into account

a longstanding administrative. interpretation of the st: it-

utes in question, and totally ignored the unimpeached testi-+ ,

mony by three expert Witnesses, who testified that there

was mv ‘‘dike’’ within. the meaning of Seetien 401, involved

_ in the construction of the Expressway. By exalting form

over substance, by relying on labels rather than reality,

‘and by failing to critically ex camine the functions to be

" performed by the so-called ‘dike’”, the Court below has

seriously undermined the authority of the Corps of En-

_ gineers to issue fill permits and has delayed thegstart of

“eonstruction on an urgently needed roadway in the State

"of New York. Ina matter of such public importance, this

‘ourt should grant ce rtior ari. See, United States VOR o-

public Steel Corp., supra; United States v. Union. Pacific

Ru. Co., 8538 UL S112 (1957); Glus v. Brooklyw Terminal,

- 359 U.S. 281 (1959). | ee

++ __Po-accept-the-determination-of4 he-court-betow would

mean that such’ diverse projects as a state highway along

the Ohio River in Louisville, Kentucky, a railroad right

of way along the Cowlitz River in Oregon, a reereation

area in the Charles River, Boston, Massachusetts, the run-

‘ways ‘at both LaGuardia and Kennedy Airports in New

York City, the enlargement of Fort. Monroe into Mill.

Creck at Hampton, Virginia, the creation of a new street

along the Willamette River in Portland, Oregon, and the

! expansion of Kast Harbor State Park into Lake Erie were

all constructed illegally because in cach | of these instances,

as well as in nimerows others; the — for a fill

permit mentioned the word dikes”?

While this ¢ ourt in Wisconsin v. Illinois indicated that

some 30-vears of consistent’ administrative pre antago ae

preceded ‘that ‘ase (278 U. S. at 413), Wwe now have 70°

‘years of such practice during which the type of permit

issued here has beén consistently authorized by the Seere-

tary of the Army without special authorization by -Con-

gres ‘‘Nothing is more convincing in interpretation of —

a ee. Ne or Pears statute.” 278 U. S. at 413; Udall —

. Tallman, gt U: S..1, 16 (1965). . And, as this Court

vain (278 U. S. at sia), Congress has-been continually

advised by heats ete., of this administrative interpreta- .

tion. See: United States v. Midwest Oil Co., 236 U. S.

459, 474 (1914). « ae | & aol

7 Sd eee Urata

It is submitted that ‘dian this court grants’ review of .

this matter, the long standing: administrative practice of

permitting the Corps of Enginecrs to issue fill permits -

will be at an e nd and the responsibility will be thrust upon

Congress to personally examine each application for a

dredging and filling operation to be conducted in any navi-

gable body of ivater in thé United Siates: Such an ap-

proach is clearly contrary to the congressional intent em.

bodied in #ie Rivers and: Harbors Act and makes the statu.

tory language of these sections reductio ad absurdum.

Furthermore, the available Jegislative history on Scetions a

nt “TO TS Comple tely contrary to the decisio ns of the.

~ -Courts be low.

Indeed, the decision’ below has ‘the effect of rendering

Section 10 of the Act a virtual. nullity, since it would bé

‘dificult - to imagine what structures along a navigable

waterway would not be considered ‘“dikes’’. Certainly,

breakwaters, bulkheads, and jetties, also commonly used |

methods to retain fill and also listed in-Section 10, would

be.. It makes no sense to prohibit in one section of an act

of Congress what is, permitted By another. Wisconsin v.

Ilinows, supra; 34-Op. A. G410, 416 (1925) ; Cf. United

States v: Republic. Steel-Corp., supra, . ~

In construing a statute, every ‘effort. should tre made to.

—eonstrue it-as-a_harmonious whole so_as to effectuate “the

legislative purpose and not adopt strained constructions.

Richards-v. United States, 369 U.S. 1,11 (1962) ; Mastro-:

Plastics Co: v. Lahor, Board, 350-U. S. 270, ), 585 (1956).

Words in a statute should’ be construed in the: context of

their subject matter and not in their everyday sense if such _

appears from the statute. N L.RB. v. Coca-Cola Bottling

Co., 350 U.S. 264 (1956) ; Boston Sand Co: v. U. 8., 278

U.S. 41, 48. (1928). |

Judged. by these standards, hus interpretation. given the.

, word dike by the. courts below is entirely untenable as a

matter.of law. The ‘‘dike’’? mentioned in Section 9 of the

Rivers and Harbors Act along with the words htidges,

- é ;

-~o

. :

; .

. ; . 7 * 4

4% - >

P . .

; a

: ; Maat °

4 ~ ,

dams-and causeways must be viewed in conjunction with

these words. All of these are significant structures, span-

ning the length of a waterway and controlling the flow of

water. The so-called ‘dike’®: involved in the construction

of the Hudson River Ixpressway neither spans the river

nor controls its flow. Rathe ‘r, the ‘‘diké’’ is akin to the

wharfs, piers, dolpliins, breakwaters, bulkheads and jetties

- mentioned in. Section 9 of the ‘Act, all less. significant engi-

neering structures under which Congress indicated it, need

not pass upon and instead = ee -to the

Corps of Kngine OTs.

~The type of dike”? mentioned in the contested permit is

not the type of engineering dike that Congress was con-

‘cerned with in See tion 9 of the Act.- At the trial, both the

-Stateand Federal Govergment produéed three. highly quali-

fied engineers who testified that the proposed fill project

did not involve-a di ke in the sense that the term is used

by laymen and: engineer s. This testimony merely confirmed

that as a matter ‘of law, there is no ‘dike’? involved within

-_the menning of Section 9

Furthermore, the proposed construction is not a dike

“in the common use of the word. The dictionary: tells us —

that a-dike is “a bank, usually of earth constructed to eon-

_trol or confine water’, Webster, Third New International

Diclronary (1966 aimabridged) p. 632. Even prior to the”

1899) Act sa “‘dike’? was considered by the Attorney Gen-

eral of “the U iy) Sti ites as Webster ‘defines .it. 16 Op. >

G. 479 (1880); 15 Op. A.-G. 526 (1880); 15 Op. A. G.

AIS (187A). vei, a

“An accepfable engineering definition of the word “dike®’

; S s ©

is found in Chambers Technical Dictionary, 3rd Revised

dition with Supple ‘ment, 1958, page 273:

uN “wall or enbankment of -timber, stone, concrete,

fascineés, or other material, built as a training works .

for a‘river so as rigidly to confine the flow within ©

definite lintits over the length treated.’? - a

4 * . j

a \ . é '

ae : {

| we |

. lloweve ry all ‘toetimony at thie trial was to the effect that

‘the ‘dike’? mentioned. in the permit” did npt fall within

* these definitions but rather was a const ructijon. term whielr

denoted a method utilized to retain thie fill‘and prevent it-

from returning into the wate rway, ‘Other COnDNON con-

struction methods @f- “fill retention _ ‘is testified to by the

engineers, included bulkheads, pre-cast conerete bloc ks aid

poured concrete walls, all) str uetunes admijtedly red

within thé ambit of Seetion 40. >In Jits reasoning tliat **:

dike if a dike’? the court distegarded oe testimony ae

tested iix decision sole ely upon nicre labo Is,

There is no question hu? that if other: methods of con-

( ‘

struction had been used to retain the fill, no hasis for the

Claim that congressional approval is necesse ry would He.

It is absélutely inconceivable that Congress would intend

law to show such conce rH oter‘a land. reclamation proj-

nis such as is involved herein’ so as to rEGUILE its Specihc

‘approval when a rock dike’? method of Constructiowt is -

used to retain the fill area, and not have any such con-

cern when other methods of cousty uction are emplone das

retaining. structures

The rationale of the decision Delow makes in@sc: pat le

the: conclusion that had the State of New. Vork utilized |

another method of fill. retention, other than the one labeled _

‘roek dike, the court would not have found the existence

of a ike?" Within the weaning of See tion 401, The

Court’s reliance on the dabel rather than on the function

of the structure to be built. is fatal to its decision. | -

‘

The. unteneble interpretation given to the word ‘dike’

“DY the courts below, which “TeGul res ¢ consent of Congress in

every case where the laid fill “retention method i& labeled

a ‘dike’? defeats rather than, serves, fhe ‘congressional

purpose of having these iiatters passed upon by the Corps

of Engineers, By ineluding any ‘type of retaining striue-

‘tures within Section 9 of. tlie statute. the courts Trelow

have contravened the intent of Congress and have :sub- »

> say «4

ro a

ne ee

stintHally nullified Section 10. Furthermore, the decisions

helow have prevented the start of construction on this

urge nithy necded roadway,

2. The mere s oualdbilng that the Hudson River Ex-

pressway may involve construction of a cause-

way within the meaning of Section 9 of the

Rivers and Harbors Act of 1899: did not give the

Courts below authority to enjoin the issuance of

a permit under Section. 10 of that Act.: -

The Courts Claw found that a small portion of the pro-

posed fos, frossway, not included within the pemmt area

and onistde the fill aren described therein, would require a

causeway “within the’ meaning of Section 9 of the - Act.

Phe court heRl that since such Causeway would be part of

the oe the Corps of Engineers should have

sought the approval of the Secretary of Transportation of

the United States and Congress before issuing the, permit.

This approach is without warrant, unprecedented and

would create havoe,

The major error in the Court’s. finding is that no such

‘eatisewey is encompassed within the scope of the permit

application. The permit authorizes the State of New York

to dredve and place fill ina portion of the Hudson River.

No causeway is contained within the limits of the fill proj-

ect. Although the District Court admitted that ‘this

causeway. is not per se part of the fill project. which the

corps of engincers’” pernut authorized’?, the Court went on

to state that ‘‘thetcorps still had. the obligation to consider

it and recognize its reality before issuing the permit’’.

Such an approach is totally unw arranted.,

It is basic that a Court should consider suey the actual .

ease or controversy before it, and should not pass on hypo-

thetical situations nor give advisory opinions. Aetna Life

Ins. Co. v: Hayworth, 300 U. S. 207. (1937) ; Muskrat v.

United: States, 219 U. S.. 346 (1911) ; ‘Golden Vv. Zwickler,

394 U. S. 103 (1969).

The. sole issue bor the Court’s below to dete ‘ymine was

whether there was a‘causeway encompassed within the

area-of the fill project. If no such causeway was. con-:

tained within sugh area, that Court was without jurisdic-

‘tion to consider and pass upon other possible areas of con-

Struction.. Tf and when the New York State Department

of Transportation does determine to build a causecivay south

of the southerumost point of the fill project it would then

have lo seck permission from Congress and the Secretary

_ of Transportation pursuant to Section 9 of the: Rivers and

/ Harbors Act, 33 U.S.C. § 401 and the Department of Trans:

portion slet, 49 US.C. $1055 Ce), |

This lack of any -jurisdictional basis is emphasized by

Unimpeached testimony cli¢ited at the trial that the State

of New York had not in fact vet made a final decision as

to’ what type of structure would be constructed south of

the permit area. 3

— The Rivers and Harbors Act of 1899 does not require

that a Section 10 permit be held up. whenever a Seetion 9

permit might also be required for some possible future por-

a tion of an applicant? s proposed project: To- order the

7 Corps of Engineers to consider, in granting a Section 10

permit, a non-existent causeway and to order the State of

New York to apply for permission to construct such cause-

wav at the present ‘time when it is not known whether a

causeway will ever be authorized, was unwarranted.

3. The determination of the Courts below that the

plaintiffs below, lacking a legally protected in

an _ terest, lacking any injury and lacking a specific

| statute on which to bring suit, have standing to

challenge the actions taken by the State: and

Federal officials was an unwarranted application:

of recent decisions of this Court.

Reeent decisions of this Court regarding the issue of

standing, in the eases of Flast’ v. Cohen, 392 U.S. 83

(1968); Data Processing Service v. Camp; 397 U.S. 150

parently ereated the imoression that standing is no longer

an issue in any matter involving review of the actions of:

State dau Federal officials. It is submitted that none of.

the aforementioned decisions, nor any other decisions of

this Court have ever gone so far as to allow any individual —

or organization whatsoever to bring suit to protest any.

covernmental action or. proposed action, Standing: still

remains a valid conéept in our judicial system. A

In ordty for a litigant.to have standing to challenge the

action of State or Federal officials in’ Federal Court, this

Court has always required petitioners fo show that the

challenged action has (1) caused injury to thé plaintiff,

“economie or otherwise and (2) that the interest sought to

Letca by the complainant ts arguably within. the

zone of interests to he protected or regulated by. the stat-

ute or constitutional guarantee in question. - Data Process-

ing Service vy Camp, supraz Turning first to the question

of injury, it is extremely, doubtful that plaintiffs be.ow

have the personal stake and interest that impart the ad-

VeOrsencess recnired hy Article TLE of the ¢ ‘onstitution.

yee prot

The plaintiffs below consisted of an Ad How commnitiee

formed to lobby against the. [ludson River Expressway, a

California corperation which agreed to lénd its name and

its, prestige to the loca! citizens committee and a village

alone the shore of the Hudsen River. Unedntroverted

testimony at the trial indicated that.the Citizens Commit-

tee owned no property in the proposed path of the Ex-

pressway and that no member owned any home or prop-

erty that would be condemned or destroyed and ithe Court

helow so found. ‘As regards the Sierra Club, ‘no proof

was offered that any member owned or resided in any

property in the proposed path of the Expressway, nor

was it shown that the Sierra Club was active in‘or engaged |

in any environmental acivities in the Hudson River Valley.

Sincé the cub owned no wildlife sanctuaries, no nature

trailways nor other property, clearly there is no injury

which the Sierra Club could elaim. |

Finally, the Village of Tarrytown could not point to any

injury as a-result of the construction of the Expressway.

The sole proof offered for standing was the loss of tax

_assessments on several private properties which would be

taken by construction of the Expressway, The Court

below erred in converting this loss of assessments into a

loss of tax revenues in spite of the fact that uncontro-

verted proof indicated that from tke moment the construe-

tion of an expressway is announced, the adjacent proper-

ties increase in walue to such an extent that they mere

than offset the loss ‘of tax revenues and would actually

create au economic gainsfor the’ Village of Tarrytown.

Moreover, the village is a: subdivi ison of-the State and: as

such has ho jegal standing to assail the validity of ‘the

state action. . Bloch River Regulating District vy. Adiron-

dack League ( ‘lub, 307 Ni Y. 475 (193: D), appeal dismissed,

B01 U.S. 922 (1956); County of Albany v. Looker, 204

i Se 9 (1912). It is wholly. anomalous to permit a

village mi challenge in the federal court the state action,

‘Turning to the other requirement set torth by this Court

in Date Processing Service v. Camp, supra, it is clear

that none of the plaintiffs below were within the zone of

interests protected or regulated by a statute or constitu-

tional guarantee. There is no constitutional provision such

as the First Amendment which was available in Plast vy.

Cohen, supra. Nor is there a specilie statutory provision

such as Bank Service Corporation Act of 1962 whieh was

utilized in Data Proce SSUNG Service Vv. Camp, supra, nor

the Food and. Agriculture Act of 1965.whielr was utilized in

Barlow y. Collins. ¥ urthermore, in Scenic udson Pres-

ervation Conference ~. Federal Power Commission, 304 F.

2d 603 (2d Cir. 1968), which was cifed with approval hy

this Court in Data Processing Service v. Camp, supra,

plaintiffs there relied upon the Federal Power Act so as

te give them a legal protected interest. Here, absent-such

a statute creating any protectable interest on hehalf of

apy of the plaintiffs below, the requisites: for standine

have not been satisfied. | .

Furthermore, ‘plaintiffs helow have failed to show. that

they come within the rationale of the Scenie Iivleon ease

- 18 as

as groups ‘who by. their a¢tivities and conduet shave ex-

hibited’) a special interest’? in ‘aesthetic, conservational,

and reercational values’. No evidence was produced at

trial that the Ad Hoe -Citizens Committee ever engaged

in any aésthetic, conservation or recreational activities

other than opposing the expressway. W hile we have nod

quarrel with the good faith of the- Sierra < lub, the proof:

showed that this organization never engaged in any type

of ‘enyironnrental activities in the State of New York: or

the Hudson River Valley. Iinally, no claim was made by

the Village of Tarrytown that it had ever engaged im any

type of conservation activities in the area.. To the con-

trary, testimony showed that the Village mi intained a huge

and unsightly refuse dump precisely where the state in-

tends to construct the expressway.

In view of the public disenssion pern nonting the press and

other public media with respect to protection of natural

resources as against the pressing needs for public improve-.

nents, the issue,of the standing of such ad hog groups

aleserves, if not compels, delimitation by this Court. Tt is

plain that the recent decisions by this Court has ereated

substantial uncertainty sis elias Sh clarification,

ee CONCLUSION

A petition for a writ of certiorari to he United

States ‘Court of -Appeals for the Second en

should be eae

Respectfully submitted,

Lovuts J. LerKxow1tz

Attorney General: of the -

State of New York

; Attorney for Petitioner

Saucer A. Hirsnowirz nectet |

First Assistant Attorney General

Jorn H. Sacus

Assistant Attorney General’

of Counsel

a .

“APPENDIX “A”

UNITED STATES COE RP OF Are EALS

For we Srcond € IRCUIT

Nos. 428-35—September Tenth, 1969,

(Argued December 8, 1969 * Decided April 16. 1970.)

Docket Nos. 54010, BHO, BYORI. etO99, 04100)

aw.

Citizens Comaurrern For Tit Hepsox VALLEY, THE SIERRA

Civ AND tHe VILLAGE or TArnyrowNx, New York,

Plaintiff s-A ppell CS,

—against— °° | :

‘Jounx Vourr, individually and as Secretary of Tramsporta-

tion-of the United States, Warrer J. Licker, Individu-

ally and as Seeretary of the Thterior of: the United °

States, STANLEY S. Resor, Individually and as Secretary

of the Army of the United States, and Waitin F.

‘Cassipy, Individually and as Chie! of Engineers. “Corps,

of Iingineers of the GS. Army, |

Defondants-Appellanis. ”,

J. Burcu McMorran, Individually and as. Comunissioner of

the Department of Transportation of the State of New

York, > aoe

Tntervenor-Appellaut.

2a.

. ; Appendix “A”.

Cirizens ComMirree ror THE Hepson Vaiiey, Tire Srerra

_ CLUB AND THLE VaLLace or TArryrowx, New York,

Plaintiffs-A ppellauts,

—against— —

J. Bercu McMorray, Individually and as Commissioner of

the Department ot Traifsportation of the State of New

York, _ ; ;

Dejendant-Appellee,

+ aii

Before: : : ;

= Tae, 3

Moore and Kavemax, Crrewt Judges:

Ryan District Judge,

Defendints appeal from-an order of the District Court

Tor the Southern District of New York, Thomas I’. Murphy,

Jedac, permanently enjoiniue the United States Army

Corps of Engineers from issuing a permit to the State of

New York to dredee and fill in the Hudson River for con-.

struction of a proposed lxpressway without the prior

approval of the Secretary of Transportation and in the

absence of the consent of Congress, and further enjoining

the New York Departinent of? Transportation from) pro-

cooding with construction of the Expressway, without such

approval and consent.

The Plaintiffs Appeal from that portion of the: District

Court’s order which dismissed) their claims against J.

~~ ch MeMorran, Commissioner of the Department of

Ptansportation of the State, of New York, based on alleged

nncons <titutionality of certain sections ‘of New York High-

wav Jaw.

Affirmed. :

* Of the Southern District of New York, sitting by designation. :

3a |

Appendix ‘A’.

Davip Sivr, New York, N. Y. (Alfred S. _ Forsyth, Sigmund

Anderman and David Perlmutter, Winer, “Neuburger

& Sive, New York, N. Y., of counsel), for Plaintiffs-

Appe llees-Appe llants Citizens Committee, Sierra Club

and Village of Tarrytown.

Rosert 8. Lynxcu, Attorney, Department of Justice, Wash-

ington, D. C. (Shiro. Kashiwa, \Assistant’ Attorney

General, and Edmund B. Clark, Attorney, Department

of Justice, W ashington, D. C.; Robert M. Morgen-

thau, United States Attorney for the Southern Dis-

trict of New York, New York, N. Y., and Peter R.

DeFilippi, Assistant United -States Attorney, New

rere N. Y., of gaa i for Appellants Volpe, et al,

Sons. Mt: ‘Sacu ey oe ee Attorney Sisal New York,

N. Y. (Louis J. Lefkowitz, Attorney General of the.

ae of New York, The Capitol, Albany, N: Y.. and

Mark T. Walsh, Assistant Attorney General, and Sam-

uel A, Hirshowitz, First Assistant Attorney General,

New York; N. Y., of counsel), for Intercenor-A ppel-

lant-A ppellée-MceMorran.

Moore, Circuit Judge:

The presente appeal is a consolidation, ordered by this

Court on October 27, 1969, of several separate appeals

taken from & final- order, and judgment entered by the

district court on July 25, 1969, Trial and judgment below

in turn followed a. consolidation of four .separate ac-

tions brought by the various plaintiffs against the various

defendants here on appeal, The opinion of the district

court, setting out the facts, the various claims and Judge

Murphy’s sp ageeninngi of law, is reported at 302 F. Supp.

285 (S.D.N.Y. 1969). —

‘Appendix

These actions arose out of a proposal by the New York.

State “Department of Transportation for construction ‘of

the Hudson. River Expressway. The plaintiffs object to the

proposed construction ‘of a six-lane arterial highway, de- ,

signed for both comnrreial and passenger . traffic, along

a ten-inile stretch of the ‘Tludson River’s castern bank

between Tarrytown and Crotony ille. Before construction

of the Expressway can begin, the New York Department of

Transportation must secure the approval of certain federal:

agencies, béeause the planned construction requires dredg-

ing and filling in a portion of the Hudson ‘River along the

shoreline, and the Hudson is a navigable waterway under

federal jurisdiction. The New York Department of Trans-

‘portation proposes. placing some 9,500,000 cubie yards of

fill, bound by a rock wall, along a portion of the river’s

bank. The landfill would extend, at its widest point, ap-

proximately 1,300 feet (nearly a quarter of a mile) into

the .Hudson.

Upon applic: ion of the State of N New York, the Unjted

States Army Corps of Engineers (the Corps) issued a

permit authorizing the dredge and_ fill ‘operation pursuant

' to its authority under the Rivers and Harbors Act of 1899,

83 U.S.C. S$ 401 et seq. Arguing that the proposed con-

struction involved both a ‘‘dike’”’ and a ‘‘causeway?’ within

the meaning of $401, the. plaintiff’s sought (1) a declara-

tion that the permit as issued was beyond the scope of the

Army’s-authority, and (2) injunctive relief to prohibit the

issuance of any permit or the commencement of any con- -

struétion in the absence of congressional consent and

approval of the enneiaey * of Tr ransportation. . ‘The district

1 Rivers and Harbors Act.of 1899, section 133 U.S.C. § 401,

provides in pertinent part: \

It shall not bé law ful to constructor commence the construction.

. or any bridge, dam, dike, or causeway’over or in any . ‘

( footnote continued on following p e)

rm Sas ae

Seer, - Appendix “ A’’.

court agreed, finding that a 414 mile rock wall jutting into

- the river constituted a “dike”? and that the Expressway

~ <project would require constryction of a ‘causeway’? before

its completion. The district court held that the Corps had

breached a nondiserctionary duty-to secure the consent of

Congress and. the approyal of the Secretary of Transporta-

tion before ‘issuing the permit. The permit was ‘declared

void, and the. eourt granted the, injunctive relief sought

against the: federal ‘defendants and against J. Burch Me- /

-Morran,. the New York Commissioner of T ransportation, |

All defendants appeal from this order,

‘

(footnote continued from previous page)

navigable river . . . of the United States untif the consent of

“ongress to the building of such structures shall have been ob-

ars tained and until the plans for the same shall have been submitte: d.

7“ °. to arid approved by the Chief of Engineers and by the Secretary

ot the Army: . .\ * s

The defendarits contend that construction of ‘the landfill as pro-

posed was referable only to section 10 of the Act, 33 U.S.C. § 403,

which provides in part: .

The creation of any obstruction not affirmatively authorized by.

Congress, to the navigable capacity of any of the waters of the

United States is prohibited and it shall not be lawful to build or

commence the building of any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in any navigable >

- ... river, or other water of the United States’... except on plans

recommended by the Chief of Engineers and authorized by the

Secretary of the Army; and it shall not be ‘lawful to’ excavate

or fill [in a navigable waterway of the United States] .-. . unless

the work has been recommended by the Chief of Rnginee ‘rs and -

authorized by the Secretar iry of the Army prior to beginning the

same. .

Approval a the secretary of Transportation ” is required * where

construction of a bridge. or causeway is contemplated by virtue of

the Department of Transportation Act, 49 U.S.C. § 1055(g), (1966),

which transferred jurisdiction over bridges and causeways from the

Secretary. of the Army ‘to the Secretiry of Transportation. See

Judge Murphy’s discussion of the statutory interrelationships in the

opinion below, 302 F. Supp at 1087.

« . od

6a —

/ . be 9? :

Appepdiv "A’7’, >

The plaintiffs also appeal from a portion of the district

court’s order which dismissed their claims against Me-

Morran ax a primary defendant. “These claims challenged

the constitutionality of the Expressway: Law,? which au-

thorized MeMorran as Comimisisoner of ‘Transportation to

“fix the exact route of the roadway and oVersee its construe:

tion, and of section 30 of New York Highway Law, whieh

prescribes the condemnation procedures in connéction with

highway construction. They also claimed that a lump sum

appropriation by the New York legislature \for general

chighway. construction was an lnpermissible delegation of

the spending authority. Their final claim was an equitable >

action’ act vinst MeMor ran charging violation of \the Rivers

and Harbors Act in seeking. to proceed with construetion >

ofthe Hudson River dandfill without congressional consent

and approval of the Seeretary of Transportation. The

. . \

‘district court dismissed these claims, but cranted injunctive

relief against. MeMorran as intervenor-defendant. in the

actions against the federal defendants: |

linportant threshold questions on this appeak involve

the jurisdiction of the district court over the subject matter

of these actions, and the Standing of these plaintiffs to seek

review of aweney action in federal court. We turn first to.

spqnanieis ee : a

. 5 Highw: av Law § 340-c, as amended | Bac Kine ‘y’s Consol. 1966),

reads in pertinent part:

Beginning at-a point Gn. interstate route 503 in the vicinity of

Seacon Or Wicgopee, to bé determined by the superintendent of , *

public works [now the Commissioner of Transportation},

thence in a generally southerly” direction ‘to the vicinity: of

Ossining and thence continuing southerly, west.of. U.S: route

nine, along or near the Hudson River to a connection or con-

nections with existing highways, as determined by the [Commis-'

“sioner of Transport ition] in the vicinity of the structure on the

_ Governor Thomas I. Dewey Thruway known as - “The ¥ appan

Zee Bridge.”

_—: er: oe. ae

Appendix A

“The district court 2 ee d its jnris\ic tion on the Adiminis-

trative Procedure. Aa, S.C. $$ TOK et. seq. (Supp. LV).

“Section 702 provides as Messy ” ra rson suffering leval

wrong because of agency action, or wlversely affected or

aggrieved by agency action within the ineaning of a rele-

vant statute, is entitled to judicial review thereof.’ Section

704 states that “lalgency action made reviewable by stat-

ute and final agency*action for whigh there is -no mr T

adequate Temedy ina court are sub: ct togudicial review.

Section 706(2)(C) permits th C. reve wing court tosset aside

agency: action found to exeeed pe. agency ’s statutory

authority. io & :

The statute, pursuant to wikike ‘h tlie, nee Chief of In-

gineers issued the disputed permit contains no .provision.

- for judicial review, nor does it include spe cific procedures

for appeal of the Aviny* $ decision... Review of the action is:

therefore defermined by+the provisions of the Adiministra-

tive Procedure Act, applicable to all administrative actions

or procecdings “except to the extent that: (1) statutes

preclude judicial review; or (2) ageney action is comnitted

‘to agency discretion by 'law.’? 5 USC. § 701 (Supp. IV).

Nothing in the Rivers and Harbors Act suggests that

judicial review is preéluded, and it is clear from a reading

of § 401 that approval of -projects involving the construe-

tion of ‘dikes’? and ‘‘causeways,”’ rather than being ‘‘com-

mitted to ageney diserefion by law,’? was. on the contrary,

“expressly reserved do C ongress. ‘The federal defendants -

contend that the landfill permit was governed py § 405,

committing certain types of shoreline construction to the

.Army’s diserction. . But whether or not. the Army could

was a matter-of statutory construction ‘obviously subjected

to full review in the district court by the Adininistiative

“Appe ndix ‘ A”,

Procedure Act, 5) U S.C. $706, The district veut properly

relied on the ao ben of reviewability embodied in the

Administrative Procedure Act where the ‘Te Was no evidence

of a Congressional intent to prohibit review in the Rivers

aid Harbors Aci. As the Supreme Court’ has twice heid

‘Sonly upon a showing of ‘clear and convincing evidénee’ of

a-contrary legislative intent should the ceurts restrict

‘access to judicial review.’? Abbott Laboratories v. Gard-'

ner, 3887 -.U. S. 136, A41 (1967); accord, Rusk v. Cort, 369

U.S. 367, 879-3880 (1962); Ale ‘tscha v. Driver, 41] F.2d 436

(2d Cir. 1969) ; Cappadora v. Celebrezze, 356 F.2d 1 (2d

Cir. 1966). 00

There can be no question at this late date that Congress

intended by the Administrative Procedure Act to assure |

comprehensive review of ‘* broad spectrum of administra-

tive actions,” including those made reviewable by specific

statutes without adequate review provisions as iyell as

those for which no review is available under any other

statute. Lbbolt Laboratoric sv. Gardner, supra at 140; sce

S. Rep. No. 752, 79th Gong. Ist Sess., 26 (1945); H.R. Rep.

No. 1980, 79th Cong. 2d Sess., 41 (1946). Since the Army’s

issuance of this permit was final ageney’ action for which

there‘is no other adequate remedy ina court, and review fs

not clearly and ¢onvineingly precluded by the Rivers and

Harbors Act, the Administrative Procedure Act must be

read ‘to confer equitable jurisdiction on the district court

to protect by injunctive relief such rights as the plaintiff

“nay have standing to assert. Kletscha v. Driver, 411 F.2d

436, 445 (2d Cir. 1969). In our discussion of standing, infra,

we conclude that these plaintiffs ae “agerioved by agency

action within the meaning of a relevant statute’’

therefore entitled to- review. The district. court has the

power under § 706 to set aside agency. aetion in excess of |

statutory authority, and- we agree with the district court

that issuance of the pernut here exceeded the Army’ S al-

and are |

ee ee

- ‘Appendix “A”.

thority. Under these circumstances, if the: Administrative

Procedure Act could not itself serve as a basis for juris-

diction, the important goal of subjecting final agency action

to judicial scrutiny would be frustrated. We therefore con-

elude that the district court properiy assumed jurisdiction.

II.

Reference was likewise made to the Administrative Pro-

cedure Act to determine the plaintiffs’ standing to obtain

review. Their right to review was based on the Act’s pro-

vision that ‘‘fa]. person suffering degal wrong or

‘aggrieved by agency action within the meaning of a nee

vant statute, is entitled to: judicial review thereof? 5

US. (. § 702. Two of the plaintiffs (the Citizens Comumit-

tee and the Sierra Club) made no claim that the proposed

Expressway or the issuance. of the dredge and fill permit

threatened any direct personal .or economic harm to thems

Instead they asserted the interest of. the public in’ the

natural resources, scenic beauty and historical value of

the area immediately threatened with drasti# alteration,

claiming that they were “aggrieved” when the Corps acted

adversely to the public interest. They are, as the federal:

‘defendants observe, serving as ‘‘private Attorney Gen-

erals’’ to protect the public interest. © See Associated In-

dustries of tlie State of New York vy. Ickes, 134° F.2d 694.

704 (2d Cir.'1943).

Allowance of standing to private ‘attorneys general i

‘publie actions’” challenging administrative ac tivity is na

no means a new or unusual concept. See Associated Indus-

tries v. Ickes, supra; Office of Commimication of United

>See generally L, Jaffe, Judicial Control of Administrative “Ac-

tion 459-500 (1965) ; K. Davis Administrative Law § 22.05 (1958).

’

10a —

al ppenil A.

Church of Christ v. F:C.C., 359 F.2d 994 (D.C. Cir, 1966) 3

Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953) ; ef. Seripps-

Howard Radio, Inc. v. F.C.C., 316 U.S. 4 (1942); F.C. C. Vv.

Sanders Brothers Radio Station, 309 U.S. 470 (1940). It

is significant that standing in such tases has derived from

judicial interpretation of the statutory term “aggrieved”

‘as deserjptive of persons entitled to review. Thus under

the Federal Communications Act, where ageney action as-

sertédly contravened the public interest, private litigants

were held to be **persons aggrieved’? with standing ‘only

as representatives of the publie interest.’? Scripps-Howard

Radio, Ine. v. F.C.C., supra at 14; L. Jaffe, Judicial Con-

trol of Administrative Action, 499 (1965).

The Supreme Court has observed that the law of stand-

ing is a *complicated specialty of federal jurisdiction, the

solution of whose problems is in-any event more or less

determined by the specific cirewmstances of. individual situ-

ations, ...7? U.S. ex rel. Chapman vy. #.D.C., 845 US. 153,

196 (1953). Judge (now Chief Justice) Burger, in his Ofiee

of Communication of United “Church of Christ yo FCC.

supra, opinion characterized the concept of standing as **a

practical and functional one designed to insure that only

those with a genuine and legitimate interest can partici-

pate in a proceeding... .°" 7d. at 1002.5 But the Supreme

Court has recently cautioned that ‘{t}here must. in addi-

tion [to adversary interest] be some connection between

: 4 In Chure h of Chaidl, a citizens, group pressing an organized

protest against renewal by the FCC of a radio broadcasters license,

alleging that the ‘broadcaster had ignored the listening needs of

nes arly half the listening audience, was held to have st: inding before

the Commission as a group represents itive of broadcast “consumers.”

‘Judge Burger treated the question of stariding before the Commis- -

sion as equivalent to standing for judicial review, °359 F.2d at 1000

n. 8, and.wied as authority for his grant of standing .to members of

the general public, inter alia, Scenic Hudson Preservation Conf.’v.

FLP.C., 354 F.2d 608 (2d Cir. 1965). +

lla

Appendix ‘*.A”.

the official action challenged and some legally protected

interest of the party challenging the action.’’? Jenkins v.

McKeithen, 395 US. 411, 423 (1969)... With these princi- -

ples in mind, we must examine the nature of the interest

these plaintiffs are seeking to protect, and the appropri-

ateness of their claim to represent the public i in de iianding

“that protection.

We have already described the situation confronting the

_plaintiffs—the prospect of massive alteration of the Hud-

son-River shoreline and of the physical environment for

some ten miles along the river’s bank. -The Citizens Com-

mittee for the Hudson Valley (Citizens Committee) is an.

unincorporated association of citizens who reside near the

proposed Expressway. The Sierra Club is a national con-.

servation organization with substantial membership also

in the area of the Expressway, and a history of involye-

ment in the preservation of national scenic and recrea-'

tional resources. ‘farrytown. is an incorporated village,

and the planned Expressway would pass through its

boundaries at the southern end of the roadway. All plain-

tiffs made a vigorous effort to present their views to the

New York Department of Transportation and to the fed-

eral officials responsible for granting the disputed perinit.

They have evidenced the seriousness of their concern with

local natural resourees by organizing for the purpose of

cogently expressing it, and the intensity of their concern

is apparent from the considerable expense and effort they

have undertaken in order to protect the public ‘interest

which -they believe is threatened hy official action of the

federal and state governments. ,In short, they have proved

_the genuineness. of their concern by demonstrating that

they are ‘‘willing.to shonlder the burdensome and éostly

processes of infervention” in an administrative proceeding.

United Church of Christ, supra at 1005. They have: ‘thy

12a.

“Appendix 6A”.

hs activities and conduct... exhibited a special interest

n’’ the preservation of the sate al resources of the Hud--

son Valley. Scenic Hudson Preservation Conf,, 354 F.2d

608, 616 (2a Cir, 1965). Tt remains for us to examine

wAay

' whether dei re is legal justification for their intervention—

whether there is a ‘legally protected interest’? at stake —

which they can assert because of their special concern.

Imseowic Hudson, supra, we set aside an.order of the.

Federal Power Commission granting a license to Consol-

idated Ndison Company of New York to construct a hydro-

electric project on the west side of the Hudson River af

Storm King Mountain. Finding that the Federal Power.

Act required the Commission to consider as a factor in

. granting such-a Leense ‘recreational purposes’? of water-

way development, we held that persons asserting an in-

terest in that faétor were ‘aggrieved’? withjn the-meaning

of that statuté’s review provisions when the Commission

decided adversely with respect to their claims.’ The ex-

pression. hy Congress in the.Federal Power Act of a con-

cern for the enviréninental effect which the agency’s action -

could be expected to exert was interpreted to create express

5 Fy “Ae ral P ower Act § 10(a), 10 U.S.C. § 803(a) reads in part:

All licenses issued... shall be on the following’ conditions : (a)

That the project adopted . .. shall be such as in the judgment

of the Commissioner will be best adopted to a comprehensive

- plan for improving or developing a waterway or waterways for

‘the use or benefit of interestate or foreign commerce,*for the

improvement and utilization of water-power development, and

for other beneficial public uses, including recreational purposes ;

of-the Federal Power Act, 16 U.S.C. § 8251 (b) :

(b) Any party to a ‘proceeding under this chapter aggrieved by

an order issued by the Commission in such proceeding may ob-

tain a review of such order in the United States Court of Ap-

peals for any circuit wherein the license or public utility to

which, the order relates i is located .

< - ‘

Appendix ‘* A”

. Statutory protection for the public’s interest in conserva-

tion of environméntal resources, and organizations with a

demonstrated concern for those resourees could claim tliat

statutory protection for. the public. |

“The Rivers and Harbors Act has no review provisions

cor responding to those in the Federal PoWer Act. Never-

“theless, persoas ‘‘ageriéved’? by agency action pursuant to

that statute are entitled to review on similar terms by‘ the

Administrative Procedure Act. We agree with the conclu-

sion of Judge McLean in Rowd Review Léague vy. Boyd, 270

tek Supp. 650,.661 (S.D.N.Y. 1967) that the meaning of

‘fagerieved’’ in one act is not different from its meaning

in the other.’ Seetion 702 of the Administrative Procedure.

Act provides that a person ‘aggrieved by ageney action

within the meaning of a relevant statute, is entitled to judi-

cial review thereof’? These plaintiffs, alleging that the

Corps and the Secret ary of the Army ignored their environ-

mental concerns are “aggrieved”? within the me aning of at

least three ‘relevant statute[s].’? The Department’ of

Transportation Act® declares ‘the national policy that spe-

cial effort should be made to preserve the natural heauty

‘ of the countryside . . ..°? and requires consideration of

recreational resources and historical values: before the

* The defendants concede that the Roatl Review decision, if cor-

rect, is controlling here. . Road Review was decided under the Fed-

eral Highways Act, 23 U.S.C. $101 et seg. Which,-like the Rivers

and Harbors ‘Act, contained no review provisions. . Judge McLean

_relied on the Administrative Procedure Act to find hoth jurisdiction

over the subject matter and standing for the plaintiffs, among «whom

were non-profit civic organizations and a town,.for. practical pur-

poses identical to the plaintiffs in the present case. As our present —

decision makes clear, we believe Judge McLean’s decision in Road

Review was correct.

® Department of Transportation Act of 1966; as amended by

§18(b) of the Act of August 23, 1968, 82 Stat. 824, 49 U.S.C

(footnote continued gn following page)

14a

Appendix “.

Segretary can approve projects under its jurisdiction. The

Hudson. River Basin Compact Act, P.L. S89- GOS, <Q) Stat.

S47 (1966) embodies the conclusion of Congress that the

Lludson River basin contains resources of “immense eCO-

nomie, natural, scenie, historic and recreational value to all:

the citizens of the United States,’ >and instruets all agencies

- to consider those resources: in planning or approving ae-

tivities affecting the area. One of the regulations’ under

which the Corps of Eneinecrs issued the present permit

provides the following: :

... the decision as to whether a permit will be issued

niust rest on an evaluation of all relevant factors, in-

cluding the effect of the propésed work on navigation,

fishy and wildlife, conservation, pollution, aesthetics, .

ecology, and the general ‘public interest. —

33 CFR 209.120(d).°

(footnote ¢ continue ed from previous page)

§ 165307) (Supp. IV). The merits of the plaintiffs’ claims are en-

twined with their standing to maintain them.” One of their conten-

tions was that a portion of the proposed expressway constituted a

canseway and, therefore, that the Corps erred in failing to secure

the consent of the Secretary of “Transportation pursuant to the De-

parti ent. of Transportation Act, Since we are in agreement with

the district court that the plans for the expressway did envision the

construction of a causeway, sce infra, the Department of Trans-

portation Act is.a “relevant” statute; and the eoneern it evidences for

preservation of the environment serves to reinforce our decision that

the plaintiffs have standing to maintain this action, ©... ,

“See also Fish and Wildlife Coordination Act of 1934,- as

amended, 16 U.S.C.°§$ 662(a); Fish and Wildlife Act of 1956, as.

amended, 16 U.S.C. § 742a et seq.; Memorandum of Understanding

between the Secretary of the Interior and the Secretary of the

Army, 33 C FR 290.120(4)(11). Claims relevant to most of these

factors were advanced by the plaintiffs throtghout the proceedings in

connection with their contention that issuance’ of the. permit was

“arbitrary and capriéiots.” The district court did not reach the

“arbitrary and capricious” claim in deciding for the plaintiffs, and

we need not consider it here. ante

15a

Appendix a ues

Thus administrative as well as congressional concern for

natural resources in the present exercise of federal au-

tority is evident. We hold, therafore; that: the public in-

terest in environmental. resources—an interest created by

statutes affecting the issuance of this permit—is a Jegally

protected interest affording these plaintiffs, as responsible

representatives of: the public, standing to obtain judicial

review of agency action alleged to be in contravention of

that public interest. Scenic Hudson. Preservation Conf. v.

F.C. supra; State of. hviebiee cate Dept. of Game v. F.P.Ci,

207 F.2d 39k (9th Cir, 1953) ; ‘Road Review L cague: v. Boyd,

supra.

tee

The federal ‘defendants challenge the standing of the

‘Village of Tarrytown on a somewhat different ground.

Conceding that the Villagé snay have standing to chal-

lenge construction of thé: Expressway itself,’ they contend

that. issuanée of the fill permit could not have a direct

effect on the Village and therefore no standing extsts to

challenge the permit. This argument ignores the-realities

confronting the Village of Tarrytown. It is true that-the

Corps of Engineers cannot affirmatively control the entire

Expressway project, as the Federal Power Commission

controlled the project at issue in Scenic Hudson, and that

all that is required of the Corps is ‘‘acquiescence’? in parts

of the State’s proposed construction. Nevertheless: fed-

eral atquiescenece in the project would: spell immediate

jeopardy to substantial interests of the Village, because

*” The district court found that the Village of Tarrytown would

suffer “loss of tax revenues and mterference’ with the Urban Kg-

néwal project already in progress in the Village.” 302 F.Supp. ‘at

1092. See Scenic Hudson Preservation Conf. v. F.P.C..°354 F.2d

at 616.

16a

Appendix “A”.

once the pérmnit issues, the State of New York ean com-

mence the costly dredging and filling operation and pro-

cood inexorably on the course of highway construction to

which the Village objects. The Village would be hard

put at some later date to overbalance the equities in favor

of the State such a large commitment ef public funds would

engender and its legitimate concern could be irretrievably

subverted even though the permit was issued unlawfully.

Although the fill itself will not have a significant direct

effect on the special interests demonstrated by Tarrytown,

the effect of the permit will have a substantial impact.

Without the permit, New York cannot.begin construction

of the Expressway along the presently planned route. :

With it, condemnation proceedings and, construction can

commence all-along that route. We think the concept of

standing is sufficiently ‘practical and functional’’ to per-

mit Tarrytown to take advantage of federal remedies to

‘avoid the substantial impact of the consequences flowing

from issuance by federal agencies of the disputed permnt.

Cee

We turn now briefly to the merits of the controversy.

After 29 days of trial, during which numerous exhibits

were offered (including a model of the proposed Express-

way), experts were examined, naps, charts and technical

dictionaries, were consulted and the facts were exhaus-

tively presented, the district court -coneluded that. con-

struction of both a “‘dike’’ and a ‘*causeway’’ were con-

templated by the State. ‘The court was-called upon to

construe the\meaning of those terms as they were used

in § 401 of the Rivers and Harbors: Act of 1899, and as

they applied in fact to the Expressway plans, before it.

Having carefully réviewed the pertinent evidence and con-

‘17a . m,

_ Appendix “A”.

sidered the governing rules of statutory construction, we

adopt, the conclusion of the district court that the word ,

. “dike” used by the defendants in their permit has the

saine meaning there as in § 401 of the Act, and that con-

struction of a'dike is forbidden :by that Rector without

the consent of Congress.

We ‘likewise agreed that the Corps.of Engineers coer

not have ignored the prospect that a ‘‘causeway’’ within

the meaning of $401 was to be a part of the project it

.Was approving, and that approval of-the Secretary of

Transportation would later be required. Any further-fed-

eral role in consideration of this massive project. would

be effectively foreclosed by the Army’s acquiescence in

a 9.5 million cubic-vard landfill, to be undertaken at great

expense to the New York taxpayers. Indeed Congress, -

which also must approve:construction ‘of a causeway over

; - navigable waters, would, in practical efféct, be precluded

from reversing such a course of action already begun pur-

suant to the present permit issued by the Army. °*

- oN

The district court héld that'the plaintiffs’ constitutional

claims were, without merit, and.we agree. As we under-

stand their-argument, three separate delegations of power .

to McMorran combine to constitute in their view, an ab-

dication of legislative responsibility i in construction- of this

Expressway. The Expressway law itself is an cight-line

statute" describing. generally the terminal points and

route of the highway and. prescribing that, -between Os-

sining. and the Tappan Zee Bridge, the roadbed is to pro-

eced west of Highway 9 and ‘‘along or near’’ the Ifudson

River. Second, section 30 of New York’s Highway Law

‘ a

. ae .

1 Note 2, supra. oan

; 18a

Appendia **

| ‘

allows MeMorran to conderin property needed for high-

way construction, and sets forth the procedures to he fol-

lowed. tt condemnation. These proc cedures are themselv es

challenged as violative of due process. Third, the jegis-

lature’s lump sum appropriation for highway construction

to the Department of Transportation permits MeMorran

Souiee latitude in-deciding how the. highway money

is to be spent. The.plaintiffs argue that, with all the dis-

eretion over condemnation of property, expenditure: of

funds and fixing of routes afforded to MeMorran by.this

combination. of ‘legislation, the ‘taggregation:of power’? ,

vested in him violates: the citizens’ right to due process.

On this appeal, the plaintiffs have not developed the

facts or the law sufficiently to be persuasive. The Express-

war statute certainly offers very little guidance for major

decision which the Department of Transportation is au-

thorized to “inake, MeMorran cites a bevy of regulations,

as does the district court, as restrictions on this power,

~ put few of-them appear to be relevant to these major deci-

sions. Thus the statute itself sets: the bounds of MeMor-

ran’s discretion, which is. very broad. However, nullifica- -

tion of statutory delegations of discretionary authority in

Inajer -publie works projects on grounds of due’ process is.

quite rare,-and the plaintiffs offer virtually no authority .

for judicial intervention along the lines they propose. |

Indeed authorities closest in point. are to the contrary.

See ‘Ahoyian v, Massachusetts Turnpike Authority, 211

UF. Supp. 668, 669 (D. Mass.). aff’d, 371 USS. 106 (1962) ;

“eps Hollow Valley Commission v. MeMorran, 20 N. Y.

24 190, 195-97 (1967): ef. Sencca Nation of Indians. v:

‘United States, 338 F.2d 55 (2d Cir. 1964).° We agree with

the district court tliat these claims must be —-

Affir med, ;

——

ee eo 19a

Judgment of Affirmanse.

UN ITED STAT ES COU CRYOF' A APPEALS ke

; h nae For THE a eek

ce “SRCOND Cincurr

Ata Stated Term of the U nited, States Court of Appeals,

in and for the Second Circuit, lield at the United States

Courthouse in the City of New. York, on the sixteenth day

of April one thousand nine undred and seventy, — =

Present: How. Pee 2: “Moore,

. Hon. Irvine R. Kaurman, Circuit Judges.

Hon. Sytvester J. Ryan, District Judge.

Citizens CoMMITTEE FoR THE Hupson Vauuey, THE Srerra

CLuB AND ‘'HE VILLAGE OF Tarrytown, New Yor,

- Plaintiffs-Appellees,

againsts

JouHN VOLPE, Individually and as Secretary of .

Transportation of the United States, et al.,

: | ; “Defendants-Appellants,

* ~

J. Burov McMorr. AN, Individnally ad 3 as s Cotnmissioner of \..

‘the Dept. of Transportation of the State of N. Y.,

Inter venor -Appellant:.

Crrmeys Comrrrer FOR THE Hupson VALLEY, Tur SIERRA’

CLUB AND THE VILLAGE oF Tarrytown, N. Y.,

| Plaintitfe- Appellants,

rae against ; -

J. Burcu McMorray; Individually and as Commissioner of

the ii of ne ta ase of the State of N. Y.,

“a —

" Defendant- oo .

20a

Judgment of Affirmance. ‘

- ° Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of ree- .

ord from the United States District Court for the Southern

Distriet of , and was argued by counsel.

‘ pee I

ON . CONSIDERATION. WHEREOF, it is now hereby ordered, -

adjudged, and decreed that the order of said District Court

be and it hereby.is affirmed.

A. DanteL Fvsano, -

: ) Peete cs | Clerk.

JUDGMENT ENTERED 6/3/70. «5

ae © Joun Livrycston,

; | -Clerk,

APPENDIX “B”

Decision of District Court, Musphy, Eads,

. dated July i1,. 1969.

Mecreiuy, DJ.: , -

These four actions, consolidated for trial, challe nee the

construction of the proposed Hudsou River Joxpressway

on a variety of grounds. :

The Citizens Comnnittee for the Hudson River Valle v

an wifincorporated ‘association of citizens who reside a

the area of the proposed Expressway The Sierra Club is

ft non- profit’ conservationist corporation orgsmized in Call-

fornia with various chapters throughout the United States.

Tarrytown is an Mreorporatyad Village of New York State,

and one of the cohuunities through which the Joxpress-

way wilh Pass. °

The federal defendants are public Officials charged with

certain’ statutory duties related to Gie issues involved and

the defendant, J. Burch MeMorran, is the C omlissioner of

‘the Department of Transportation of. the State of New

York, the builder of the proposede Sine te

The bxpressway, as proposed by the New York State

Department of Transportation, is planned to be a six lane

Sarterial highway which will accounnodate both passenger

and comme reli ul traflice. As conceived it will extend approxi-

diately nine ihifes along the ¢ aust shore of the Hudson River

from the,’Fappan Zee Bridge at Tar rvtown north to Croton-

ville, New York, «Approximately 2.000 feet of the read will

rest on 9,900,000 cubie yards of dill which will extend atits .

widest point 1500 feet into the river. No part of the project

Will involve the expe snditure of federal funds,

On February 21, 1968, the State Department of. Trins-

portation, pursuant to 33 U.S.C. $408 (Rivers and Harbors

Act of 1899), applied to the Corps-of? Engineers for a

permit authorizing the fill operation-which would. take

approxiinately two years to complete. When the permit

was authorized by the Secretary of the Army and issued,

by the Corps on January 27, 1969, the plaintiffs sought.

oo).

— at

Decision of District Court, Murphy. D.dI.,

dated July 11, 1969. , ;

a preliminary injunction restraining ms delivery. This re-

lief was denied, Citizens Committee v. Volpe, 297 F.Supp.

S04 (S.DINLY. 1969). and the Court of Appeals affirmed.

—— Ko Pd —— (2d Cir. 1969)" but ordered an immediate

trial on the merits.

The plaintiff’s major claim is thet sinee the Expresew: ay

project involves dikes, causeways and bridges to We Inuilt

over or in a navigable waterway of the United States.

the Corps exceeded its statutory authority in issuing the

perinit: without the prior approval of Congr ss and or

the federal Department of Transportation, as required hy

33 U.S.C. 6 401 of the same Riversaqnd Harbors Net of 1899.

Seetion 403. under which the Corps issued the permit

provides + ,

“The creation of any obstruction not aflirmatively

authorized by Congress, te the navigable capacity of.

“any of the waters of the United States is prohibited

ee ain and. it shall not be lawrul to exeavate or fill [ina

navigable waterway of the United States]... unless

the work has been recommended by the Chief of ngi-

neers and authorized by the Secretary of the Army

prior to beginning the same.” a > USCS 405 CLS99).

Section 401, clad by the plaintiffs to. he applicable,

provides : :

“Tt shall not he lawful to construct Or commence the

construction of any bridge, dam, dike, or causeway,

ee ee

‘In Citizens Committee v. Volpe, 297 F. Supp. 809, which

granted New York State’s motion to dismiss the actions against it

on.the ground of sovereign immunity, the plaintiffs’ claims agamst

MeMorran were restricted to whether’ “|sJection 340¢ of the New

York Highway Law is unconstitutiqnal in that it vielutes the Four-

teenth Amendment and lis the construction of] the Expressway . . .

a violation of their Fifth Amendment rights.”.297 F. Supp. at 814.

Penn of District € ‘ourt, Murphy, wal.

dated July 11, 1969.-

over or in any port, roadstead, haven, harbor, canal,

navigable river... of the “United States until the

consent of Congress to the building of such structures

shall have been obtained, and until the plats for ‘the

same shall have been submitted to and approved by

the Chief of Engineers and by the Secretary of the -

Army. .. .” 33. U.S.C. § 41 sass!

‘The*necded approval of the Secretary of Transportation

of the United States becomes a factor in the’ case as a

result of. the evolution of section 401. By two subscéquent

statutes ‘bridges’? were removed froni the specific conscut.

of Congress requirement. In- 1946 Congress enacted the

General Bridge Act. 338 U.S.C. $525 et seq. Section 025

-of this Act grants the consent of Congress for the con-

struction of any bridge éver nay igable waters if the bridge

is approved hy the Chief of Engineers and, the Secretary

of the Army. However, Congress still reserved ‘its juris-

diction over dikes and causeways referred to in’ seetion

401 of Tithe 33. In L966 Congress enacted *the. De spartinent

of Transportation Act, 49 U.S.C. 9 1651 et seq. Section

1655 of that: Act-transferred certain powers and. duties

of other federal depaitments to the Secretary of Trans-

portation. Subsection (g¢) of that section transferred juris-

diction over bridges and causeways in navigable waters °

of the United States. from. the Secretary of the Army to

the Secretary of: Trans portation.

Consequently, the construction ofa bridge over or in

“navigable waterways nox’ requires approval of the Corps—

of Engineers acting under the Secretary of the Army, and

the Secretary. of Transportation; the-construction of a

dike requires the consent of Congress and the Corps of

. Engineers when authorized by the Secretary of the Army;-

the construction of a causeway requires the consent’ of

: ph Me ;

Decision of District Cowt, Murphy, Pay.

Shek OG dated July 11, 1962.

Congress and che approval of the Secretary of Transpor-

tation, : |

Since the Corps of Jengineers as “authorized by the ee

retary of the Army issued the permit without the consent

of Congress or the Secretary of Transportation, it ex-

cecded its statutory authority if there is a bridge, dike,

or causeway involved in’ the permitted project. We come,

therefore, to whatcis the most crucial issue in the case,

It-is undisputed that the Hudson River is a navigable

waterway of the United States, and that in both the permit

issued by the Corps, and the New York State plans’ ac-

companyving the permit there are numerous references to

“dikes.’? “Page 1 otf the Permit states: “vot are hereby

authorized by the Secretary of the Army to dredge and

place fill protected by stone slope protection and to con-

xtruct piers and bulkheads with floats and mooring piles:

the dredged material to be suitably retained by dikes to

prevent its return into the waterway. . > (Miuphasis

added.) In the State plans or drawings attached to the

—perinit there are four references to stone and or rock dikes.

In-the plans prepared by the State im connection with

the securing of bids, three types of dikes are speetfically

ustrated and deseribed. The main type, the rock dike,

will run along the entire length of the western side of

the fill-in order to prevent the fill from returning to the

river... :

The defendants, wares accusing the plaintiffs of argning

sem inties, yostulate that what is called a dike (by the

various engineers who pre pared: the plans, for the State

Department of Transportation, and the. Corps of Engi-,

Yeers) ix not really 2 dike sinee a real dike has a differe nt

“purpose from their dikes. Phey also arene, assuming dikes

are involved, that section 401 1s still not applicable, since

their dikes would not substantially affect navigation. The

25a.

Decision of District Court, Murphy, DJ.,

dated July 11, 1969, <

“

court in denying the preliatnary injunction agreed with

this latter argument reasoning that the «plaintiffs would

probably not succeed on the- merits because the Express-

way would not substantially interfere with navigation and

because the federal Departine ‘nt of Transportation inter-

posed no objection.” The Court of Appeals in allirining the

denial of the ss Ati injunction did not pass .on’ this

issue, :

The defendants urge that Congress, in, using the term

dike? in 1899, meant a structure that would be within

the definition set‘forth in Chaunbers Technical Dietionar x;

py. 273 (Gd Rev.-ed. ai Supp. i958), which was originally

published in 140, e., Saewall or embankment of tiniber,

stone, concrete, nee or other inaterial, built as a train-

ng, works for a river’so as rigidly to confine flow within

detinite Limits over the leneth treated.’? Froin this defi-

nition they conclude that a real dike must substantially -

effeet navigation since it. confines river flow. and since .

the dikes in their plans do not substantially affect navi-

vation they are.not dikes as Congress used. the tern.

The plaintiffs submit that Congress, in prohibiting ‘tany

dike’? reserved for itself the determination 6f .the eflect

of the dike on navigation.and any other matter deemed of

consequence. Therefore, they argue, that once a dike, any

dike, is to be constructed in navies le water of the United

States it is Congress, and not the courts, who will con-

sider its effects on navigation in determining whether to

upprove the structure or no,

* The denial of the plaintiffs’ motion for a preliminary injunction

does not affeet our final determination of-the issues. Harvey <Alumi-

num Co, Vv. clmerican. Cyanamid .Co., 13° F.R.D. 14 -(S.D.N.Y,

1953); 7 J. Moore, Federal Practice §.65:21 (2d ed. 1953).

A 26a

Decision of District '( ‘ourt, Murphy, iD ia

1 dated July 11, 1969.

What is posed, therefore, is are there dikes involved

m this preject and what did-Congress mean when it legis- |

lated, “fit shall not be lawful to/ construct or conmience:

the constructfon of any a dike or causeway

over or inany . . . navigable river . J. until the consent

of Congress to the building of such structure shi ul have

heen obtained. 5's ae

We hold. based on the evidence presented at. trinl, that

“dikes? characterized as. such by the defendants. are to

he constructed alone the western side of the fill and that

Congress when it said uy dike’? over or in any navigable

river aneant-exact!y that. Therefore, As Corps of Knee

ners exceeded its statutory 2 ithovity i in issuing the permit

Which enables the State fo comme nee nile ertising for bids,

In the absence ef any lowislative or judicial authority

to support ‘the defendants’ theory of statutory interpre-

tation we apply the ordinary tneaning fo the tem ‘any

dike’? Dike is defined as ‘¢/a] bank, as of earth? thrown ap

to form a barrier, line of deniareation or the like. _

Welbster’s. New International, Dictionary, 4 I: “ded Dp. To

(1954): *tAn embenkinent for controlling: « r holding hack

the waters of the sea ora river.’ ead House Die-

tionary of the fmetish Laneunce, 1, 402 (1967). S Statutes

ere to be eonstrued hy attributing its ordinary meaning

te the language used.2.. United States x. Peller, 170 F.2d

1006, 1007 (2a Te 148), Consequently, we hold that if

Coneress meant to confine its jurisdiction to only those

dikes that substantially affect navigation, it would have

snid so. Since proposed dikes are involved and will he

“over or in’? a navigable river of the United States, we

leave to Congress, when it decides if itt wil] approve the

project, ‘the consideration of the effect of the dikes on

navigation. ‘ -

Decision of Distsiee Court,-Murphy, D.J.,

dated July 11, 1969.

Even if this interpretation is incorrect we find that the

proposed rock dikes come within the definition proposed

by the defendants, i.e., the rock dike will: control the flow

~ of the river insofar as it will prevent the river from erod-

‘ing the fill and returning to the natural shore line. It will

also, according to a government expert, increase the f oree

of the ebb tide ‘by 10 percent.

In addition to the consent of Congress — required

because of the presence of dikes, we hold that approval

of the Secretary of Transportation of the United. States

is required since causeways are also inyolved in the ¢on-

struction of the project. } 7 i

The plaintiffs claim that the entire fill area of the project

will be a causeway since it will be support for a raised

road over water. We disagree and accept the defendants’

definition of a causeway, i.e., its ordinary meaning con-

notes a raised road across water or marshy land with

the water or marshy land on both sides of the road. Since

‘the fill will be. hounded: by water on only one side (the

west, it; in itself, is not a causew ay.

However, the proof at trial clearly shows a causeway

supporting the road where it leaves te natural shore line

south of the Tappan Zee Bridge until the road reaches the

southernmost point of the fill. On the map, opposite page

14 of the booklet: ‘*The Hudson River. Expressway and

the Hudson. River Expressw: wy Park.” which was pub-

lished by, the State Department of Transportation, the

southern lane of the Expressway at this point js clearly

out in the river with water on both sides. The. detailed

model of the project, which was introduced into evidence

by the State, also shows this portion of. the Expressway

to clearly. be a. causeway. within the definition urged by

the defendants. 4

«Decision of District. Court, Murphy, DJ., ;

: dated July 11, 196%,

While. this causeway is not per se part of the filt project

which the Corps of Engineers’ permit authorized, we hold _

that the Corps still had, the. obligation to consider it and

‘ree ognize its reality before issuing-the permit.

The Corps in considering the application of the State,

Was not operating in a vacuum. It had before it detailed

maps, drawings and plans of the entire project. It cer-

tainly, knew. the entire route of-the six lane road. Before

it issued the permit the Corps of Engineers held public

hearings at which time a full description , of -the project

and the route of the road was given.. By not securing the

approval of the United States Seeretary of Transportation

on the causeway it was in effect delaying the mevitable

by requiring the State, after it had’ expended. millions of

dollars in filling the river with: 9,500,000 enbie yards of—

fill; to then apply for the .Secretary’s approval of the ,

causeway which is immediately south of the fill. By doing

so the Corps effectively relinquished the juri isdiction of -

the federal Department of Transportation, and. its dis-

cretion to deny the approval of the future causeway, for |

how could the Secretary of Transportation deny the future

request, if he were to be so inclined, after the enormous

expense. and work the State would have@had ‘already put

into the project. s

Such a piecemeal approach to the exercise of federal -

agency jurisdiction would also frustrate one. of the main .

purposes of the Department of Transportation Act, -i.e.,

' the conservation of the country’s natural resources’ Be-

fore the Secretary of Tr sis tiaecaneas is ‘to approve any

ait i hereby dochinnd to be+the national policy that special

effort should be made to preserve the natural beauty of the country-

* side and pulilie park and recreation lands, wildlife and water fowl

refugees; and historic sites.” 49 U.S.C. § 1651(b) (2) (1966).

- 29a

+ \ Decision of District Court, Murphy, Dul.,

‘dated July 11, 1969.

project within his jurisdiction he has to determine, inter

“aha, the effects of the project on the natural resources

of the area.’ If this massive fill project is completed before

his approval is sought, he will be presented with a fai

vccompli. There will not be any need for him to. consider

the effects on natural resources as the harm, if anys will

be done. - 8 : ‘

In view of this congressional intent encompassed in the

Department of Transportation Act we hold that the Corps

of Engineers exceeded its statutory authority in ignoring

the presence of the causeway’ when it issued the permit

without prior approval of- the. Secretary of Transporta-

tion.® :

*“After August 23, 1968, the Secretary shall not approve any

programs or project which requires the use of any publicly owned

land from a public_parketeereation area, or wildlife and waterfowl

_Aeluge of- national, State, or local significance as determined by the

~ Federal, State or local ofheials having jurisdiction. thereof, or any

land. from an historic site of:national, State, or ‘local significance as -

so determined by such officials unless (1) there is nd feasible and

prudent alternative to the use of sueh land, and, (2) such prograin

includes all possible planning to minimize harm to stich park, Tee-

reational area, wildlife and waterfowl] refuge, or historic Site result

ing from such use.” 49 U.S.C. § 1653(f).

“The Hudson Riv er Expressway and the Hudson River Expresé-

portation, .states “The setting within which these complementing

projects dre.to ke uridertaken.is characterized by striking) n atural ¢

beauty, importarit historical significance, and harmonious residential

development” (at page 1).

5 Since the presence of causeways in the project necessiti tes the

approval of the Secretary: of: Transportation, we have not deemed it

necessary to determine if bridges re present.

6 Since, the Corps of Enginee rs has exceeded its statutory author-

‘tity within the meaning of 5 U.S.C. § 706(2.) (C) (1966), we have

not deemed it necessary to determine if the Corps was also arbitrary

and gre sg within the meaning of § 706(2)(A) of. Title’5. See

note 7, infra.

showing of ‘clear and. convincing evidence

Decision of District Court, Muxphy, D.J.,

dated July 11, 1969.5

The defendants have consistently urged that this court

has. no jurisdic ‘tion over the subject matter of this dispute.

Concededly there j is NO: separate statutory authority. whieh ,

grants jurisdiction to. the district courts to have ae “de-

cision of the Secretary of the Srmy reviewed. Yet, we

hold that. the’ Administrative: Procedtire Act, 5 U.S.C.

§ 701 ot seq., justifies this Court ’s jurisdiction.’

While there is an apparent conflict in this cireuit, the

Supreme Court has .implemented what appears to be a

presumption in favor 6f a finding of jurisdiction under

the Administrative Procedure Act. In Abbott Laboratortes

vy. Gardner, B87 Ue S. 136 (1967), it was held that the courts

should restriet access to judicial review “only upon a

: of a.econtr ary

legislative intent. .. 2? 387 U. S. at ‘141, citing Rusk v.

Cort, 369 U.S. 367 (1962). See also, Powelton Civic Home

Own. Ass’n vy. HUD, 284 Supp. S09 (i. D. Pa. 1968).

7A person suffering legak wrong because of agency action, or

adversely affected or aggric ved by agency action within ‘the mean-

ing of a relévant statute, is entggled to judicial review thereof. mB

U.S.C.-§ 702.

“Ageney action made reviewable by ‘statute and final agency ac-

tion for which there is no other adequate remedy in a court are

suipject to judicial review.” 5 U.S.C. §-704.

‘The reviewing court shall—

(1) compel agency action indawfelly withheld or unreasonably

delayed : and’ - .

(2) hold unlawful .and ft aside ageney action, findings, and

conclusions found to*be—

(A) arbitrary, apricioughai an abuse of discrettyn, or otherwise

not in accordance with law. :

—-(B) contrary -to constitutional right, power, viii im-:

munity ; +

or short of ‘statutory right... 2” 5 UNC. § 706.

“*&

sla

De cision “oF District. Court, inurpha bal,

dated July 11; 1969.

Bs \

aN 1966 decision in this cireuit held that the Administra-

tive Proc edure Act constituted an affirniafive grant of

jurisdiction with respect to the review of federal adminis-

trative actions. Cuppadoran. Celebrezze, 356 FP: 2d 1 (2d

Cir. 1966). Judge McLean in Road Review League v. Boyd,

‘270 F. Supp. 650 (S.D.N.Y. 1967), followed the reasoning,

af Cappadora ands referred to. thie Administrative Pre

cedure Act as a “jurisdictional statute’? 270 PF. Supp.

at 659. | | he

AX second civevit! case that appears to hold, and has

later been construed to held,’ that the Administrative I V0-

codure Act does not confer jur isdiction is Ove. Gitsttesson

Contracting Co. vy. Ftoete > 270 BK. dL 912 (2d Cir), cert.

denied, 864. U.S. 884 (1960). “Phe court heldoin that. case

that the suit, while termed one for judicial review, was

in reality a contract action against the Enited States and

properly belonged in the Court of Claims. Itiwont onto

say that the Administrative Procedure Act docs. not extend

the jurisdiction of the federal courts to cases not other-

~ Wise within their competence, Even though the coum stated

6 the Act dots not erant jurisdiction, it never had io

each that dete rmination since there was really no. agency

action to be reviewed. eS ses

Since the presumption-in favor of jurisdiction has not

heen rebutted by a clear and convincing presentation of

an opposite legislative intent, we hold that this -court has

the necessary jurisdiction to rule on the disprte un der the

Administrative Procedure “Act.

~ This court also has jurisdiction. of the suit hroneht | hv

the V Hage of Tarrytown under the federal questio n statute

: >

* National Maritime Union'v. NIAB, 267 F. Supp. 117, 119 at

N. 8 (S.D.N.Y. 1967).

yircat. c ‘Dedsion of District Court, Murphy, ‘Did,

; dated July. 11, 1969. tas

whieli provides: oO | Lege, pune

“The district: courts shall have original jurisdiction

of all civil ac tions, wherein the matter in 1 controversy

exceeds the sump or valve of ¥10,000 ... and arises

under the Constitution, laws,.or treaties of the United

States.’? 28 U.S.C. § 133 (a) (1958). ;

» The Village’s claini is that it will lo ¢ tax reyenties

a by thé State condenmation of taxable fe tas in the

aoe Village...” In Scente Hudsoi, Preservation ¢ Conf. v. EPC

oot I. 2d GOS (2d Cir, 1905) < cert. denied, 3584 U. S.- 941

aye . « 2s

(1966), the same-claim was the basis of one ‘of the. peti-

- tioners’ standing to sue. See also, TPA v. Polk County,

6S 1. Supp. 692 (EB. D. Tenn. 1945). -Cf. Jacobs v. Tawes,

7——-230-F-S4-GH.- erent tg bY): a6 ib vi City of CarrcHon,

235 2d 481 (Sth Cir. 1956).2 > 4

We also hold lint ‘al of the plaintiff's have standing

necessary to maintain these!uctions. “Under Scenic Huds

son, supra, there is little doubt that the Village of, Tarry-

tovn has.the necessary standing. There the court held,

have standing because the -transinission lines’... reduce

tax eventos: collected from privately held: land, and sig--

nificantly interfere with long-range connmunity planning.”’

354 IF. 2d at 616, ;

This is pree isely what was prov ed by the Village in the

instant case, namely, loss of tax revenues and interference

with the Urban Renewal. project already in progress in the

Village. The proof offered by the Village of. Tarrytown

* Since jurisdiction has been established under the Administrative

Procedure Act.and the: Federal Question statute, we do not -deter-

une if jttrisdiction exists under the Mandamus Act (28 U.S.

§$ 1361). thet “ommerce and Anti-Trust Statute (28 U.S.C. § 1337);

cee the Dect: ratory. Judgme ‘nt Act (28 U.S.C. sis outa

—

. 33a °

as .

Decision of District Court, Murphy, D. J.,

ea dated July 11, 1969.

that it ‘would lose over $10,000 in tax revenues contained

some errors. in ‘computation. Nevertheless, this court is

$10,000. Le a oa eae

The standing “problem becomes more Mute with the

Sierra Club and the Citizens Committee as they adinittedly

have no personal economic claim to assert. Rather: they

are “agerieved’? by the alleged de struction of the natural

resources of theriver, Secnic Hud'son, supra, and its inter-

satisfied that the amount Will at the very miniinua: exceed

pretation by Ltoad Revie w, supra, create standing in this

‘ase if this court ean-ind : Siectalative intent’? to create

standing, absent a monetary claim, 12 the various statute S

involved. | oF

conue Hudson involved a Feieral Power Act (16

U.S.C. § 791 et seq:). Section 313(b) of that Aet (6 U.S.C,

~§ 825L a grants the right of judicial review tovany party

aggrieve ‘d by an order of the Kederal Power Commission.

The hain petitioner was ‘ar. unincorporated association

consisting of a number of non profit conservationist organi-

zations. Like the Sierra Club. and the. Citizens Comittee

in this case, they had no direct economic interest in the

controversy. Yet, they were found to be.‘‘agericved par--

ties’? because the Federal Power Act avas -held to. create

a public interest in the scenic, historical, and recreational

values of the area. The "Court held:

“Tn order ts insure that the Federal Rone Com-

mission will adequately protect the public interest in

of power development, tlfese who by, their, activities

and conduct have exhibited a special inte ‘rest In such

areas, must be held to. be... aggrieved parties under

§313(b).. We hold that the Federal P ower Act gives

petitioners a legal right to protect their special in-

terest.’’ 354 EF. 2d at G16. * e .

jh-

fee eee

Decision of District Court, Mirphy, DJ.

; ai ale daobatly. il, 1969.

The Road Re Els w case involved a dis pute under the’ F ede

‘al Highways Abt (23 ULS.C. § 101 cet sen). Again, there

was no. ecdnonte loss on-the part of the cons ervationist

plaintitts.. Unlike fhe Fede ral ower Xet, the Féderal.

Highways Act contained no sp cific authérization for ju-.

Ppa me: 3 i

dicial review. Taste nal the plaintiffs relied, on the Admin-

- istrative Procedire. Act. TI he Court, following the reason-'

ing of Sceiic Hidson, cited: sections of the Higvhways Act

(23 U.S.C. §§ 154, 138) and 23 C.F R. . 1.6(¢), all to the

effeet that cacministrative decisions under the Aet> must

consider loeal necds, parks, bastoric sites and natu tral re

sources. , 270 I. Supp. at 660-61. The court stated that:

ve . : s = . ee a

~ these provisions. were ‘Ssuflivient, under the yprinciples of

Scenic Uudson. Yo manifest 2 congressional intent oe

towns, local civie oremnizationss and conservation groups

are to be eonsidered ‘agerieved? by ageney action ahich

allewedty as disregarded their interests, TD sce no reason

why the word ‘aggrieved? should have a different meaning

in the .Administr ative Procedure Aet fromethe meaning

eiven to it under, the: Io deral: es oWer, Aef.? soe i. Supp.

at O61, !

The rule, there fone: ‘is that if the statutes. involved in

the controve sy are ee Tawith the protection of nat-

ural, hixtori¢, and scenic resources, then. & congréssional

‘intent exists to give standing to groups terested in these

factors and gvho aliegé that, the se Faetors are not being

properly considered by the aeroney Gene

. © e

e e

% Viter the plaintiffs had rested, the State moved unsuccessfully

» to. dismiss ‘since the plaintiffs . chad introduced not evidence -to show

their interest in the naturgl; historie, and scenic resources of the area

and hence had failed. to prove their standing. Turing the State’s

case this-interest wis proved throws the testimony of menibers of

the Citizens Committee and Sierra Club. We hase our decision that

plaintiffs Citizens ennne ‘e and, Sierra Club have standing based on -

the evidertee as a whole, incloding that introduced by the “deferdant”

New York Sta tte. Bate sv. Miller, 133 12d 645 (2d (cir. s Cert pee

denied,320 U.S. 210 (1943) ; 9 Wigmore, Qn Evidence § 2496 (3d,-

d. 1940).

j e r Fs + ; ° sai ng

i ’ . up ane e Bek: * .

. . i. * .

a Fe

rere yeh

‘ :

"” Decision of District Court, Murphy, DiJ., -

| dated July 11, 1969.

In the instant | cise the ag tetas ot eau ane

“Act mmar Hfests the same cCongressidial concer One of

the eegulatioOns under which the Corps of engineers ‘issucd

the pérmit, 33°C.ELR. ¢ § 209.850, calls for the consideration’

r the effects of the pve on fish, recreation, pollution,

oe natural resources ‘as well as navigation? 1

The ‘refore, under. the euidelines of Scenic Hudson and

Road Review both the Sic ra Club and th ‘Citizens Coin-

Inittee Lave the requisite standing .to” Jnaintain these

ae tions. ie

The remaining claim of be pk: uintiffs is th: i MeMorran

asa State official is, proceeding under an unconstitutional |

statute, Le., d40¢e-of New York Highway. Las, in-viola—,

tion of the Fifth/and Fourteenth Aniendmhent rights of

the plaintiffs and, accordingly, should. be enjoined: . See

note 1, supra. /

“Phe pkauntiffs’ brief characterizes therclaim as follows:

Whether Article VIE (New York State Constitution) has.

heen violated is perhaps not a question hefore this court.

The extent of the power granted ‘to MeMprran hy the Ex-

pressway Law, § § 30 of the High ray Law, andthe Leeislae

‘fure’s lump sum budge ts is of the essénee of the constitu.

tional claim.”?

Section 349e of New York Highway Law (\McKinney’s

1960), which authorizes construction of the! ‘Expressway

provides: . Pees em, a8 ;

My oo.

“State expressway routes are-herehy set forth and

generally described as follows. *

a 5 ’

See notes 3 and 4 supra.

Public Law 89-605, 80 Stat. 847° (19¢ ae sta s that the’ ] fidson

River basin contains resources of “immense econonie, netur A, Scenic,

‘ Hitstoric, sand recreation value to’ all the citizens 6f the nited

piatese. 3 nas es .*

————

a °

Decision of District Court, Murphy, DJ,

date d July 11, 1969.

a bs inning o a point on interstate route 503 in the

, vic ‘inity of Beacon or in the vieinity? of Wiccopee,

> to be determined - by the «superintendent ‘of publie

“ works, thence in a generally southerly direction to the

vicinity of Ossining and thence continuing southerly,

west of U. S. route nine, along or near the Hudson

River to a connection or connections with existing

. . e . Ps ° . . ° 7 .

highways, as-determined by the superintendent of pub-

-. lie works, in the vicinity of the structure on the Gov-

ernor Thémas- i. Dewey Thruway known as “The

Tappan Zee Bridge’.”’

The plamtufs ‘¢ ‘laim this statute is an unconstitutional

. delegation of législative pow er, to the Commission in, “that

it prescribes no standards to be followed in de termining,

inter alia, the exact route, width or nature of the Expregs-

way. We disagree. To require a State legislature to pre-

ecrihe, every detail ‘fa proposed State road, Would shortly

.put an end to road cénstruction on a State level. In Ahoy-

ian ve Massachusetts Turnpike Authority, 211 Fe Supp.

“GES, G69 (1). Mass.), afd, 371 USS. 186 (1962), it was held

that the delegatron of the extiet path of a highway was not -

unlaylet.. The‘ ljegisiature cannot ‘constitutionally (be)

required to appraise saree hand: the myriad situations to

which it wishes a particular poliey to, bé applied and to

formulate specifie rules for each situation. Necessity there-

fore fixes a point beyond which it is unreasonable and im-

practicable to compel (the Legislature) to prescribe de-

tailed rules.??? City of. Utica v. Water Pollution Control

Board: 5 N.Y. 2d 164, 169 (1959), citing American Poaver

Co. v. SEE, 329 '°U.\ S: 90.

éMorcover, the Commissioner of: ‘Transportation, when °

implementing section 340e of the Tighway Law, is bound

“by the procedures and standards set forth. by the New

York State’ Legislatire in section 240d of the Highway

A i

ge ola

“Decision oy, District Court; Murphy, Dud,

date d July 1t, 1969.

‘Law. This latte r section ‘provides for, inter alia, the mun-

ber ‘and separation of lanes, access to” the expressways .

and their maintenance. Sections 10 and. Al of the Highway

Act mandate that the Comnnissioner make. -SUIVEYS, naps

and plans in connection with the Construction of” roads.

Before the Commissioner awards -any seam Aa Con- -

twact, he must. follow the _procedurgs prescribed by the

Legislature in stetion 38 of the Highway Law. Yn short,

the Commissioner is not operating solely under section.

d40c. Rather, he is bhoundby. the many regulatory. provis,

sions oi Galaed in’ the entire Highway “Law of New York.

We atso Jiold that failure to give prior hotice of the eX-

“ercise of the power of eminent domain is not violative of

due process, United States v; Southerly Portion of Bodie

me - 114 I. Supp. 420, 430 (1e.D.N.C. 1953); U irity/l States

. Winn, 83 I. Supp. 172, 174 (WLDS.C. 1949). Section

$5 of Kew York's Hiahwey Law sets’ forth tlie conderima/’

tion prpery lures to be followed by the Commissioner. Con-

demPation | mi Ips are filed in the Office of the County ¥ fork

. of the county in- wlrich the prope rty is located ae in the”

Department of State. U pon filing with the Couyty Clerk,

title vests in the State.. Notice is then- personally served.

on the’ former property owner who. may ten commence

suit in the Court of Claims. Tf a former Mroperty owner

remains on the land after the taking, the. Commissioner

niust commence an eviction proceeding on-60 days notice.

These procedures clearly meet the requirements of due

process. . Bragg v. Weaver, 251 U.S. 57 (1919) 3 Fifth Aes”

Coach Lines v. C ity of Ne uw V ork, a. Me Sa 342° (1962).

- Although plaintiffs? « OMap saints agninst MeMorrace make

no mention of the. ante vi Fre the New “York State: —*

legislature has «provided for the Department of Trans:

portation, there was received in evidence plaintiffs’ Ex-

. y

’ oa

Decision oF py: strict Cc ort; Murphy, D. Fe

dated July 11,:1969.- we

od ° j a

Anbit 91) whielr sets. forth the! appro; vriations for’ the

Departme nt of Trans sportation and its predecessor, the Des

-partinent of Public Works, bor the last few years, includ »

ing the 1969 appropriatton of $57 000,000. No other evi-

dence was introduced on this score and plaintitls’ motion

to conform their ple ndings io the proof was granted.

We will assume that [6 nit bit ‘OL conteins the Appropria:

tion hill passed bi the New York Legislature in cate and

“2 that the budget, procedures: sé forth by Article V HT, $Y 1-4

of New York State’s:C onstitution we re carried out. Ae

ing is’a lump sum appropri tation‘ for the De spartinent of

Transportation in the amount of $3Q1. SOO,000 Por thie pur

poses therein stated, : |

What puzzles is is why lamp stm appropr! tation vio-

the Fifth and Pourt: fomthy Anti rent riehts af the.

4) vlaintiffs: -As ‘we under: tond The plaints ffs? claim, it ap-

spears tot be haserk on ther | inp sun appropriation as (dis-

tinenished. from an appropriation with more -particnlariza-

tion. But partion! arization is not always necessary Or Ox-

pnedient, especially. w here, road censtruetion is: involved.

People y. Treinaiie, 8 NEYSA,-7 (1939). Bees ee

In anv event, no evideiSe of authorities have heen of-

foret. (other than to demmestrate that the appropriation

ea timp sum), to Show thp eneonstitutionality of the ap

propriation: and /o ‘or the allo eed yiol Intions of the plaintiffs?

“fth and Fourte ith Amondmenf ‘rights.

“Accord ing Ty the con: ti itritional ‘elal MNS of. the —.

are dismissed,

Let. this opinion stand for or, findings of fact and eon-

clusions of law. Settle order on notice.

poe

he AS F. M URPITY,

. 6 U.S. Pe:

ese Datid, N ew 'Y ork, N.Y. July 11, 1969. a

TPM,

APPENDIX ee v

Order of District Cau. Murphy, B¢ dated’

July 25, 1969.

Plaintiffs having commenced these actions seeking de-

claratory and-injunctiye relief, and defendants having duly

appeared herein, and theése .actions having been consoli-

dated for trial,.and the’ issues having been duly tried —

“before this Court, without a Jury, ‘and this Court having

rendered its opinion and madé findings .of fact and con-

clusions of law herein on July 11, 1969,

Iv 18 ADJUDGED; ‘DECLARED anh DECRE z D, that the construe-.

tion of the Hudson River E xpressway by the State of.

New York and-the Depaitment: of T) ransportati on of -thie

State of New York involves the construction of dikes and

-causeways over or’ in a navigable river of the Uni ted

‘States, to wit, the Hudson River, within. the meaning of

Title 33 United States Code §§ 401 and 525 and Title 49

United: States Code § 1655, which ‘cons struction, in so far

-as the same involves* tlre construction - of a-dike or dikes

requires the corisent of the Congress of tlie United States

and the Corps of Engineers of the. Departmerit: of the

_ Army of the United States, whe n autharized ley the Secre-

-tary of the Army of the U nited States, and, insofar as

‘the same involves. the: construction of a-- ‘ausewav or

causeways, requires the consent of the Congress and the:

-approval of the Secretary of Tran: ‘portation of the U nited

States; and it’ is further : |

Gube rep, Anau harp AND Decree, th: ut a. Cor ps of Enai-*

neers, on or about January 27, 1969, execed its statutory,

authority j In issuing a permit to the State of New York and

the Department of Transportation a the’ State of Néw

-York to dredee and’ fff m the Hudson “River for-the con- - ;

struction of said Expressway dithent the prey erento ef

the Seeretaas: ef Prapsportation of the ated States and

in the abseiice of the concent of the Consrer ef.the Enited

_ Btates, = 2 he, and the s sand, | is declared to he mn-

TPM.

“TPM

it is further Piet ee a mat

tba!

Order of District Court, cia J., dated

<e duly 25, 1969, 4

“Tawful, null, void and of no force and. effect, ab maitio; and.

Orpveren, Apscpgep AND Decreep, that. the defendant

Wilkiam F. ¢ ‘assidy, individually anid as Chief of Mmeincers

‘Corps of Engineers. of the Unitdd States Army, and all

persons in active concert With hi and his successors: and

assigns, be and they are liereby permanently restrained and

enjoined fronvissning a‘permit to the State. of New York

and'to the Department of. Transportation of the State of |

New York to dredge and fill in the Hudsoa River for the -

construction. of: said Te xpresswhy, witheut the prior ap-

proval of the Secretary: of Transportation of the United

the. United States: and it is further 3 eee.

Orperep, AkpscupGED AND Decresn, that the State ef New. ,

York Hs offieeis; acents; ated mitt ph rene, and a Depart |

ments and Awenedis ef the Shite’ ef ewe York. the: ve-

" peotige aitieers: agents anc emplavces: including specifenty

Hee State ef New Sods and defendant d: B ure ‘h Me Morran,

individually and as Commissioner of. the Department of

Transportation of the State of New York, be and they each”

are heréby. pe rianently restrained an enjoined from. pro-

: ceeding in any manner with. the construction of said Ix-

pressway, iebidits, dtes atid; seleitine oF accepting ans

bids for deedgite sad fling Ht the Hidson River for siteh

|. pitepeses SBgitine ox accepting ane hide forthe eonstee

Hen ef any dike bridee or etisesaas deeduing and filing in

said tiver er consteneting any dike: bridee oF ensesay for

ie : Sst: one iese: or HSH tHE on presenti ai preeeedites

te seeite ay land er ether pReperty fer such purpose, wn-

less’ and tintil the consent of the Congress to the construe-

tion of such dikes, bridges: and causew aS shall have been

abtained and unless and until the approval of the Depart- :

- “Order - District Court, Minrpliy .s dated,

eee poe i July 25, : 1969.

= go

-ment of ‘Teipnaportation of the United States has. been .

P obtaine d for the canstruction of such CAUSE Way ‘or cause--

ee: ‘ways antl any bt ‘idge or bridges 3° and it is furthe an ;

4 Onpiiteh, that phriniiia’ eheiis thetisection GU of the:

ive ee York delseay dane is an tHe ttt ad delewertiostt

TAM. ef Fowehttiee porer bee eres the atte repel i distitiscedds.

oe aid # is + fethen ;

Gavan RED, Rearitnct D AND ena fliat Antcsulina Me-.,

Morran’s motion to. disiniss all the claims in the. four ae

tions: based upon the alleged unconstitutionality of they.”

TAR M. Expressway" Law ($ 340- e,: Highway Law of thie State ofp

“°°. New - York), be and- the: sanic Ix hevdliy ni all “respects

granted; and it is further e Labi

ate Orperep, ApstupGep AND Hien ep.that the complaints. in

TM, - the: actions against J. Burch MeMorran as primary defend-

ant. (69. Civ. 305 and 69 Civ. 448) De and the same hereby

are in all respe cts dimsissed ; and. it is further

aoa Orperen, that costs Shall be taxed against the defend.

£& BEGUN: es sao ee . ;

_ ¢and69 Civ. 354 against —. 69. ry: 305 n aes 69 Civ. 448

LPM. sand , and in faver x -of the plaintiffs in, eaek of these

“+ + eonseHdated actions: in aerengenee with ep sand it is

further tai ,

“~~ ; : i

eC -

OrpErr: dD, Apa DGED AND Decreep. that’ any party hereto

may apply, to this € ‘ourt?for stich othér and further relief’

not Inconsistent. withsthe facts found and law declared in

the aforesaid decision of this Court as may be deenied

requisité for the fair enforcement of this order, judgment

and deeree, upon five days notice 194 all parties. en

| “Dated: New York, N. ¥., July $5, 1969: a

‘Enter, fe cg

. ‘ [eas i+ : : j

ag , eeiatyyros \

‘

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.