The opinion of the court was delivered by: MURPHY
THOMAS F. MURPHY, District Judge.
These four actions, consolidated for trial, challenge the construction of the proposed Hudson River Expressway on a variety of grounds.
The Citizens Committee for the Hudson River Valley is an unincorporated association of citizens who reside in the area of the proposed Expressway. The Sierra Club is a non-profit conservationist corporation organized in California with various chapters throughout the United States. Tarrytown is an incorporated village of New York State, and one of the communities through which the Expressway will pass.
The federal defendants are public officials charged with certain statutory duties related to the issues involved and the defendant, J. Burch McMorran, is the Commissioner of the Department of Transportation of the State of New York, the builder of the proposed Expressway.
The Expressway, as proposed by the New York State Department of Transportation, is planned to be a six lane arterial highway which will accommodate both passenger and commercial traffic. As conceived it will extend approximately nine miles along the east shore of the Hudson River from the Tappan Zee Bridge at Tarrytown north to Crotonville, New York. Approximately 22,000 feet of the road will rest on 9,500,000 cubic yards of fill which will extend at its widest point 1300 feet into the river. No part of the project will involve the expenditure of federal funds.
On February 21, 1968, the State Department of Transportation, pursuant to 33 U.S.C. § 403 (Rivers and Harbors Act of 1899), applied to the Corps of Engineers for a permit authorizing the fill operation which would take approximately 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 a preliminary injunction restraining its delivery. This relief was denied, Citizens Committee for Hudson Valley v. Volpe, 297 F. Supp. 804 (S.D.N.Y.1969), and the Court of Appeals affirmed, (2d Cir.1969)
but ordered an immediate trial on the merits.
The plaintiffs' major claim is that since the Expressway project involves dikes, causeways and bridges to be built over or in a navigable waterway of the United States, the Corps exceeded its statutory authority in issuing the permit without the prior approval of Congress and/or the federal Department of Transportation, as required by 33 U.S.C. § 401 of the same Rivers and Harbors Act of 1899.
Section 403, under which the Corps issued the permit provides:
"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 excavate or fill [in a navigable waterway of the United States] * * * unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same." 33 U.S.C. § 403 (1899).
Section 401, claimed by the plaintiffs to be applicable, provides:
"It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway 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 plans 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. § 401 (1899).
The needed 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 subsequent statutes "bridges" were removed from the specific consent of Congress requirement. In 1946 Congress enacted the General Bridge Act, 33 U.S.C. § 525 et seq. Section 525 of this Act grants the consent of Congress for the construction of any bridge over navigable waters if the bridge is approved by the Chief of Engineers and the Secretary of the Army. However, Congress still reserved its jurisdiction over dikes and causeways referred to in section 401 of Title 33. In 1966 Congress enacted the Department of Transportation Act, 49 U.S.C. § 1651 et seq. Section 1655 of that Act transferred certain powers and duties of other federal departments to the Secretary of Transportation. Subsection (g) of that section transferred jurisdiction over bridges and causeways in navigable waters of the United States from the Secretary of the Army to the Secretary of Transportation.
Consequently, the construction of a bridge over or in navigable waterways now 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 Congress and the approval of the Secretary of Transportation.
Since the Corps of Engineers as authorized by the Secretary of the Army issued the permit without the consent of Congress or the Secretary of Transportation, it exceeded its statutory authority if there is a bridge, dike, or causeway involved in the permitted project. We come, therefore, to what is 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 accompanying the permit there are numerous references to "dikes." Page 1 of the Permit states: "you are hereby authorized by the Secretary of the Army to dredge and place fill protected by stone slope protection and to construct piers and bulkheads with floats and mooring piles; the dredged material to be suitably retained by dikes to prevent its return into the waterway * * *." In the State plans or drawings attached to the permit there are four references to stone and/or rock dikes.
In the plans prepared by the State in connection with the securing of bids, three types of dikes are specifically illustrated and described. 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, while accusing the plaintiffs of arguing semantics, postulate that what is called a dike (by the various engineers who prepared the plans for the State Department of Transportation and the Corps of Engineers) is not really a dike since a real dike has a different purpose from their dikes. They also argue, assuming dikes are involved, that section 401 is still not applicable since their dikes would not substantially affect navigation. The court in denying the preliminary injunction agreed with this latter argument reasoning that the plaintiffs would probably not succeed on the merits because the Expressway would not substantially interfere with navigation and because the federal Department of Transportation interposed no objection.
The Court of Appeals in affirming the denial of the temporary 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 Chambers Technical Dictionary, p. 273 (3d Rev. ed. with Supp. 1958), which was originally published in 1940, i.e., "a wall or embankment of timber, stone, concrete, fascines, or other material, built as a training works for a river so as rigidly to confine flow within definite limits over the length treated." From this definition they conclude that a real dike must substantially affect navigation since it ...