Great Salt Lake Minerals & Chemicals Corp. v. Marsh

596 F. Supp. 548, 1984 U.S. Dist. LEXIS 16196
CourtDistrict Court, D. Utah
DecidedJune 2, 1984
DocketNo. C-84-0230A
StatusPublished
Cited by2 cases

This text of 596 F. Supp. 548 (Great Salt Lake Minerals & Chemicals Corp. v. Marsh) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great Salt Lake Minerals & Chemicals Corp. v. Marsh, 596 F. Supp. 548, 1984 U.S. Dist. LEXIS 16196 (D. Utah 1984).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

ALDON J. ANDERSON, Chief Judge.

On May 25, 1984, the United States District Court for the District of Utah, Central [551]*551Division, the Honorable Aldon J. Anderson, Chief Judge, presiding, heard oral argument on plaintiffs’ Motion for Preliminary Injunction. Plaintiff, Great Salt Lake Minerals and Chemicals Corporation, was represented by Dale A. Kimball, Patricia W. Christensen and Edwin Sieger. Plaintiff-in-intervention, William J. Colman, was represented by Frank J. Allen. The Corps of Engineers and other federal defendants were represented by Joseph W. Anderson and Geoffrey Worstell. Dallin W. Jensen and Michael M. Quealy represented the State of Utah, and L. Ridd Larson represented Southern Pacific Transportation Company. The court took the motion under advisement. The court, having examined the record of the administrative hearing before the Corps of Engineers, the memoranda of the parties, and having heard oral argument and testimony, hereby enters its order denying plaintiffs’ Motion for Preliminary Injunction.

I. BACKGROUND

This is an action for judicial review, under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 702-706, of a decision by the United States Army Corps of Engineers (“Corps”), dated March 20, 1984, to issue a permit to the Utah State Department of Natural Resources, under Section 404 of the Clean Water Act, to discharge fill material into the Great Salt Lake in connection with a flood control project to breach the Southern Pacific Transportation Company (“Southern Pacific”) Railroad Causeway across the Great Salt Lake.

The Great Salt Lake is divided into the North and South Arms by the Southern Pacific Railroad Causeway, constructed of rock and other fill material. The characteristics of the two arms of the lake differ in several respects. The surface of the North Arm is approximately 2.5 feet lower than that of the South Arm and a substantially greater concentration of salt and other minerals is present in the North Arm than in the South Arm. Breach of the causeway would result in an 18% reduction in the salinity of the North Arm (R. 8466 at 1332-1333) and is projected to result in an approximate 0.75 foot decrease in the elevation of the South Arm of the lake and an approximate 1.25 foot increase in the elevation of the North Arm of the lake. (R. 8466 at 181.)

The increase in the water level of the Great Salt Lake is unparalleled in this century. For a period of 13 years, beginning in 1963, the lake rose at an average rate of about 0.7 feet per year. Thereafter, the lake receded two feet and then leveled off. In the last year and a half the lake level has increased rapidly.

In response to the extraordinary rise in the level of the Great Salt Lake, the Utah Legislature, in its 1984 Budget Session, passed House Bill No. 30, which was subsequently signed by the Governor and became effective on March 29, 1984. The Legislature found that existing and anticipated extraordinary flooding conditions around the Great Salt Lake could be alleviated by breaching the Southern Pacific Causeway dividing the north and south arms of the lake and therefore authorized the Executive Branch to undertake such breach.

In anticipation of legislation authorizing the breach, the Utah State Department of Natural Resources submitted an application to the Corps on December 12, 1983, for a Section 404 dredge and fill permit, proposing to excavate a 300-foot breach of the causeway. Following notice, submission of evidence, a public hearing and investigation, the Corps issued the 404 permit to the State of Utah (“State”). The State engaged Southern Pacific to act as general contractor of the project. Southern Pacific soon began work on breaching the causeway.

Thereafter, Great Salt Lake Minerals & Chemicals Corporation (“GSL”) filed a complaint in this court seeking (1) preliminary and permanent injunctive relief postponing and preventing the discharge of fill material into the Great Salt Lake in connection with the breaching of the causeway; (2) a declaratory judgment that the action by the [552]*552Corps in issuing the permit was arbitrary, capricious and an abuse of discretion, was not in accordance with law, was in excess of statutory authority and was without observation of procedures required by law; and (3) an order setting aside the Corps’ decision to issue the permit. GSL filed its Motion for Preliminary Injunction on April 2, 1984.

William J. Colman (“Colman”) subsequently filed a motion to intervene as a party plaintiff. Colman’s complaint-in-intervention stated four causes of action. The court granted Colman’s motion to intervene only as to the first cause of action which asserted generally the same claims as those advanced by GSL, differing only in the nature of the harm Colman claimed he would sustain as a result of the breach. Notwithstanding the fact the court denied Colman’s motion to intervene as to his state law claims, Colman’s counsel argued at the preliminary injunction hearing that the State’s failure to comply with state law condemnation requirements was a taking of Colman's property without compensation and resulted in irreparable injury. The court does not have jurisdiction to hear Colman’s state law claims and the prior ruling governs.

On May 18, 1984, the court held a prehearing conference on plaintiffs’ motion for preliminary injunction wherein it was concluded that the court’s review of the Corps’ decision is limited to the narrow question of whether the Corps’ action was arbitrary, capricious or an abuse of discretion. 5 U.S.C. § 706(2)(A). The focal point for this review is the administrative record of the Corps’ action. The court did allow additional affidavits and testimony to be received on the question of irreparable injury, balance of hardships and public interest considerations. However, these affidavits and testimony do not go to the question of likelihood of success on the merits. For this determination, the court is limited to a review of the administrative record.

The court has previously ruled during oral argument that plaintiffs have standing to assert environmental claims, to the extent that such claims may be at issue in the case, even though the plaintiffs’ interests may be principally economic. See National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971); See also Realty Income Trust v. Eckerd, 564 F.2d 447, 452-543 (D.C.Cir.1977).

II. STANDARD OF REVIEW

The standard of review of the Corps’ action is determined by § 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1982), which provides that a “reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions” found not to meet six separate standards. Some of these standards apply only in narrow, specifically limited situations.

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Related

Zurn Constructors, Inc. v. B.F. Goodrich Co.
685 F. Supp. 1172 (D. Kansas, 1988)
GREAT SALT LAKE MINERALS AND CHEMICALS v. Marsh
596 F. Supp. 548 (D. Utah, 1984)

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596 F. Supp. 548, 1984 U.S. Dist. LEXIS 16196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-salt-lake-minerals-chemicals-corp-v-marsh-utd-1984.