Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, enjoining defendants-appellants from dumping dredged materials, or issuing permits to dump dredged materials, at a site designated Western Long Island Sound III. Vacated and remanded.
Meskill, Pierce and Mahoney, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, enjoining defendants-appellants, John O. Marsh, Jr., Secretary of the U.S. Army,*fn1 Lt. General Joseph K. Bratton, Chief of the Corps of Engineers, Colonel C.E. Edgar, III, District Engineer, Army Corps of Engineers, New England Division, and the Department of Army Corps of Engineers of the United States of America (collectively the "Corps") from dumping dredged materials, or issuing permits to dump dredged materials, at a disposal site designated Western Long Island Sound III ("WLIS III") located in the Long Island Sound (the "Sound") off Huntington, New York. The Corps contends that the permanent injunction was erroneously entered by the district court in behalf of the plaintiffs-appellees, the Town of Huntington, County of Suffolk, County of Nassau, Town of North Hempstead, Town of Oyster Bay and Robert J. Mrazek (collectively "Huntington"), because the district court failed to balance the equities between the parties and conduct an evidentiary hearing as required by our prior decision in Town of Huntington v. Marsh, 859 F.2d 1134 (2d Cir. 1988) ("Huntington I"), familiarity with which is assumed.
In Huntington I, we affirmed the district court's grant of Huntington's motion for summary judgment and denial of the Corp's cross-motion for summary judgment, concluding that: (1) the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C.A. §§ 1401-1445 (1986 & West Supp. 1989) ("Ocean Dumping Act") applied to the initial designation of WLIS III as a disposal site; and (2) the environmental impact statement ("EIS") issued by the Corps for its designation of WLIS III as a dumpsite violated (a) the Ocean Dumping Act because it failed to consider the Act's criteria for the designation of such sites, and (b) the National Environmental Protection Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4374 (1982 & Supp. V 1987), because it failed to consider the types, quantities and cumulative effects of the dredged material which would be deposited at WLIS III.
In Huntington I, however, we vacated a permanent injunction issued by the district court, identical to the permanent injunction before us on this appeal, because "neither the opinion [underlying the injunction] nor the order [imposing it] addressed the appropriateness of an injunction on the facts of this case," and remanded "for the purpose of making such a determination, to be guided by traditional equitable principles." 859 F.2d at 1143.
On remand, the district court again imposed an injunction identical in terms to the previously vacated injunction, without holding an evidentiary hearing, finding that "[the] public has an interest in maintaining the physical, chemical and biological balance at the dump site that outweighs the private interest," described as "inconvenience and additional cost to owners of docks and piers." The Corps again appeals the determination of the district court.
The facts underlying this litigation are comprehensively stated in Huntington I, and that statement is incorporated by reference here. Briefly, in the fall of 1980, certain owners and operators of marinas in Mamaroneck Harbor, New York (the "Applicants"), located on the Sound, requested permits to conduct dredging operations on their properties and dispose of the dredged material at an ocean dumpsite, seeking to avail themselves of the economies arising from scheduled dredging of federal waterways in the area by the Corps and the resulting presence of dredging contractors. On March 23, 1981, the Applicants modified their application to allow disposal of their waste at "the closest available site" in the Sound, which was the Central Long Island Sound dumpsite ("CLIS") located off New Haven, Connecticut; that application was granted. On September 1, 1981, they again requested a modification to allow dumping further west in the Sound. Since there were no operative dumpsites west of CLIS in the Sound at the time, the Corps was required to designate a new dumpsite, which turned out to be WLIS III.
This designation was a "major federal action" requiring an EIS under NEPA. See 42 U.S.C. § 4332(2)(c) (1982). A final EIS was issued on February 12, 1982, and the Corps designated WLIS III on March 16, 1982. Huntington promptly initiated this litigation. Pursuant to permit applications granted by the Corps, dumping at WLIS III was conducted from the designation of the site until the entry of the initial injunction in this action on March 22, 1988, and thereafter until June 1, 1988, as authorized by a stay of that injunction entered by the district court upon application of the Corps. Under the original designation, dumping has never been allowed at WLIS III from June 1 to September 30 of any year, and no alteration of that arrangement is apparently contemplated by any party to this action.
No dumping has been conducted at WLIS III since June 1, 1988. The original injunction entered by the district court precluded the resumption of dumping after September 30, 1988, and the injunction entered after the remand in Huntington I (combined with a prior temporary restraining order) precluded it thereafter. The Corps contends that it has monitored the impact of the dumping that occurred at WLIS III from March, 1982 to June, 1988 (1) by reviewing applications for permits to dump at that site for, inter alia, their cumulative effect on the site; and (2) pursuant to an ongoing Disposal Area Monitoring System ("DAMOS") program established by the Corps in 1977, under which it monitors open water disposal sites for physical, chemical and biological effects of disposing of dredged materials. A DAMOS survey of WLIS III conducted in August and October, 1985 establishes, according to the Corps, that the dumping conducted at WLIS III has not had any adverse environmental impact.
As indicated earlier herein, upon remand in Huntington I, the district court imposed a permanent injunction identical to the prior injunction vacated in Huntington I, after oral argument but without any evidentiary hearing, stating:
The Congress designated the WLIS III site as an ocean dumping site to give assurance that the physical, chemical and biological balance in those waters would be maintained. The requirement of FEIS under ODA, NEPA and its regulations was for the purpose of giving the public adequate time and opportunity to investigate and argue the effects of the dumping of dredged spoils. We do not accept the opinion of the Corps as a substitute for Congressional mandate. We believe that absent an ...