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RUSSO DEV. CORP. v. THOMAS

November 6, 1989

RUSSO DEVELOPMENT CORPORATION, Plaintiff,
v.
LEE M. THOMAS, Administrator of the United States Environmental Protection Agency, CHRISTOPHER J. DAGGETT, Regional Administrator for Region II of the United States Environmental Protection Agency, JOHN O. MARSH, JR., Secretary of the Army, LT. GEN. ELVIN R. HEILBERG, III, Chief of Engineers, COL. MARION L. CALDWELL, JR., District Engineer of the United States Army Corps of Engineers, New York District, Defendants



The opinion of the court was delivered by: SAROKIN

 In this action for declarative and injunctive relief from an Environmental Protection Agency ("EPA") veto of an after-the-fact permit granted to plaintiff by the U.S. Army Corps of Engineers ("Corps"), pursuant to Section 404(c) of the Clean Water Act ("CWA"), 33 U.S.C. Sec. 1344(c), defendants move for dismissal or, in the alternative, summary judgment. Plaintiff cross-moves for partial summary judgment.

 BACKGROUND

 The following facts are undisputed:

 Plaintiff Russo Development Corp. ("Russo") is a New Jersey real estate developer which constructs office and/or warehouse facilities on otherwise undeveloped property. Plaintiff has constructed over forty such facilities since the commencement of its operations in 1968, and all of these facilities have been constructed in municipalities falling under the jurisdiction of the Hackensack Meadowlands Development Commission ("HMDC").

 The HMDC was established by statute to exercise comprehensive land-use planning and regulatory authority throughout the Hackensack Meadowlands District ("District"), an area adjoining the Hackensack River and consisting of approximately 20,000 acres of water, coastal (tidal and nontidal) wetlands, and associated uplands. Plaintiff's 12G Statement at 3, @@ 7, 8. In accordance with its statutory mandate, the HMDC has published inventories of wetlands in the District, mapped the wetlands resources of the District in its Bio-Zone reports, and has published the results of its inventories and maps as the HMDC Master Plan since 1972. Id. at 4, @9.

 Pursuant to the Coastal Management Act of 1972 ("CZMA") and the New Jersey Coastal Management Program ("NJCMP"), the HMDC and HMDC Master Plan have been federally approved as the state agency and state plan responsible for implementation of the CZMA in the District. Although the Department of Interior challenged the HMDC Master Plan as to the amount of filling of wetlands it permitted, no federal agency challenged the HMDC's wetland delineation and inventory. Id. at 5-6, @ 12.

 In 1979, Russo purchased a 44-acre parcel of land located in Carlstadt, New Jersey from Empire, Ltd. ("Empire"). These 44 acres had been classified by the HMDC as "dry fields" in its Wetlands Bio-Zone reports and wetland inventories. Admin. Record of Army Corps of Engineers ("ARC") at 231. Russo's contract with Empire was contingent upon Empire's securing several permits from the HMDC. Affidavit of Lawrence Russo, Jr. at @@ 5, 19. The HMDC Master Plan had designated the 44 acres for development in the "Light Industrial and Distribution" zone in Carlstadt, and in 1978 Empire applied to the HMDC for the authority necessary to develop the parcel. Id. In May of 1979, the HMDC approved the requested major subdivisions and road construction permits. Id. at @9. In 1979, Empire began the filling and paving to construct the two access roads which eventually bordered the 44 acres, Commerce Boulevard and Central Boulevard, and these roads were completed and conveyed to the Borough in 1982. Id. at @@ 9, 10.

 Russo began to excavate and deposit clean fill on the 44-acre parcel in 1979, and essentially completed the process by 1982. These fill activities were conducted openly and in plain view of the New Jersey Turnpike and Washington Avenue in Carlstadt. Id. at @ 70. Russo completed seven warehouses on the parcel, selling one of them and renting out the others. Id. at @ 10.

 In March, 1981, the United States Fish and Wildlife Service ("F&WS") complained in writing to the Corps that "Russo Construction Company" was illegally filling ten acres of wetlands for road and building construction. ARC at 359, 690. The Corps responded by letter in April of 1981, informing the F&WS that the filling "was found to be in violation" of federal law, that the owners of the property had been directed to cease work, and that the case would be processed according to Corps regulations. ARC at 362, 692. However, in reality no action was taken by the Corps in response to the F&WS complaint other than the above-mentioned letter to the F&WS: no notice was given to Russo or any other interested party, and neither the Corps nor the F&WS took any further action.

 In January of 1985, Russo contracted to purchase a 13.5-acre tract from Empire which is located due east of the 44-acre parcel on the other side of Central Boulevard. Prior to its purchase of the property, Russo obtained the consent of Empire to begin excavating and filling the 13.5 acres in preparation for construction of a warehouse and office facility similar to that constructed on the 44-acre parcel. Russo Affidavit at @ 63.

 The Corps received an anonymous telephone complaint in March, 1985, which alleged illegal fill activity in the area of Commerce Road in Carlstadt. ARC at 693. Acting on the information it received, the Corps identified the 13.5-acre tract as the property undergoing filling activity and Russo as the owner of the tract, and the Corps related the 13.5 acres to the F&WS complaint received four years before. ARC at 694-697. On March 25, 1985, the Corps advised Russo that it had determined the 13.5 acres to be protected wetlands under the Clean Water Act ("CWA") and orally requested that Russo cease and desist from further filling on the property. ARC at 699. Russo immediately suspended the work on the 13.5 acres, with five acres left to be filled, and began preparing a permit application for the 13.5 acres. Plaintiff's Rule 12G Statement at @ 70. A formal cease and desist order was issued by the Corps on April 24, 1985. ARC at 753.

 In response to the Corps' direction, plaintiff submitted an application for a permit to fill the remaining five acres of the 13.5-acre parcel and for an after-the-fact permit authorizing the previously-completed filling operations on the other 8.5 acres of the 13.5-acre parcel and on the 44-acre parcel. Russo Affidavit at @35. Plaintiff's application included alternative site evaluations and mitigation proposals. Id. The Corps received plaintiff's application on June 17, 1985, but because of insufficient information the application was not deemed complete by the Corps until August 27, 1985. Defendants' 12G Statement at @ 2. Public notice of the application was issued on August 28, 1985, and on March 23, 1987, after extensive administrative consideration, the Corps issued its Notice of Intent to Issue a Sec. 404(b) permit to plaintiff. Defendants' 12G Statement at @@ 3-23; Plaintiff's 12G Statement at @ 79.

 On May 26, 1987, the EPA, after having unsuccessfully requested that the Corps reconsider its permit decision at a higher level, initiated proceedings under Section 404(c) of the CWA, 33 U.S.C. Sec. 1344(c). Defendants' 12G Statement at @@ 24-26. On March 21, 1988, the EPA vetoed the Corps permit. Defendants' 12G Statement at @@ 45-48. The EPA's veto relied in large part on a report provided to it by the Maguire Group, which evaluated the 44-acre and 13.5-acre parcels and determined them to have been "high-quality" wetlands prior to Russo's filling activities. This determination by the Maguire Group and by the EPA differs from an earlier determination by the Corps that the parcels were "marginal" wetlands. See, ARC at 607. The EPA's evaluation of the parcels as "high-quality" wetlands led it to conclude that the mitigation ratio accepted by the Corps was too low and thus to veto the Corps' decision to grant the permit to plaintiff.

 DISCUSSION

 In order to prevail on a motion for summary judgment, *fn1" a party must show that there are no genuine issues of material fact and that, viewing the facts in the light most favorable to the opposing party, the opposing party cannot prevail as a matter of law. Fed. R. Civ. P. 56. See, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). Summary judgment has been characterized by the Third Circuit as a "drastic remedy", and the court must resolve any doubts as to the existence of factual issues against the moving party. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). The parties in the present action agree that many issues raised in the motions before the court are issues of ...


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