Wednesday, June 15, 2011

American Bottom Conservancy v. U.S. Army Corps of Engineers

Jun 14: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-3488. Appealed from the United States District Court for the Southern District of Illinois. The Appeals Court explains that, the "American Bottom" is a 175-square-mile floodplain of the Mississippi River in southwestern Illinois, across the river from St. Louis. The area contains wetlands that provide habitat for many different species of birds, butterflies, and other wildlife. The American Bottom Conservancy is an environmental organization that seeks to preserve the wetlands. Its members include birdwatchers and other people who enjoy seeing wildlife in the wild.
    Waste Management of Illinois, Inc., owns and operates a landfill in the American Bottom that it calls the "Milam Recycling and Disposal Facility." The landfill, located near the town of Madison, Illinois, is due east of St. Louis and southwest of a state park that contains a large lake -- Horseshoe Lake, the largest in Illinois, after Lake Michigan. Because the Milam landfill is filling up with waste from St. Louis, Waste Management wants to build another landfill -- the "North Milam Recycling and Disposal
Facility" -- on 180 acres of a 220-acre tract ("North Milam") that it owns just north of the Milam RDF; the tract is thus located between that landfill and the State park.
    Obtaining permission to build a new landfill, and building it, will take time. In the meantime Waste Management wants to remove the soil from some of the wetlands and transport it to its existing landfill for daily cover. The consequence will be to transform the wetlands into a dry "borrow pit." The wetlands occupy 26.8 acres of the tract and Waste Management wants to destroy 18.4 of them (69 percent). But to destroy wetlands it needed a permit from the Army Corps of Engineers. The Corps granted the permit on condition that Waste Management create double the amount of wetlands on a nearby tract that it owns. The company accepted the condition. Additionally, The application for permission to build the new landfill is pending.
    The district court dismissed a suit by the Conservancy, without prejudice on the ground that the Conservancy had not established standing to sue under Article III of the Constitution and therefore the suit did not invoke the district court's jurisdiction. The Appeals Court indicates that the only issue before it is the Conservancy's standing.
    The Appeals Court reviews a number of precedent-setting standing decisions and legal writings. The Appeals Court says, ". . .the plaintiff's affidavits claim that the destruction of the 18.4 acres of wetlands will reduce the amount of perceptible wildlife, and the claim is not so implausible that it can be rejected without counteraffidavits, which Waste Management has not submitted. And if a really substantial elimination of wildlife were required to establish standing, a cumulatively immense elimination of wildlife could occur as a result of numerous small projects requiring destruction of wetlands, none of which would create an injury great enough to support standing if such a requirement were imposed."
    The Appeals Court also said, "Since Waste Management has committed to creating twice the wetlands that it will destroy, maybe, despite the probable delay in their developing to the point at which they will provide habitat comparable to what is to be destroyed, the permit granted by the Corps of Engineers is actually a boon to the environment. But that is a question that goes to the merits of the Conservancy's challenge to the Corps; it does not detract from the injuries to the Conservancy's current members, who presented uncontradicted evidence that they will lose present enjoyment of wildlife if the existing wetlands are destroyed."
    Finally, responding to a request from Waste Management (not the Corps), the Appeals Court addresses why it cannot decide on the issue of the case. The Appeals Court said, "The district court dismissed the suit without prejudice, because on the view it took of standing it had no jurisdiction; it therefore could only dismiss without prejudice. Were we to decide the case on the merits we would be directing the entry of judgment with prejudice; otherwise the plaintiff would be free to relitigate the case. An appellee who wants, not that the judgment of the district court be affirmed on an alternative ground, but that the judgment be changed, in this case from a dismissal without to a dismissal with prejudice, must file a cross-appeal. . . Waste Management didn't do so. The judgment is reversed with instructions to reinstate the suit."
    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).] [*Solid, *CA7]
For a limited time period you can access today's complete issue of eNewsUSA without the links