City of New Haven, CN v. Marsh Petition for a Writ of Certiorari to the US Court of Appeals for the First Circuit

    Supreme Court of tfte Umteti States
October Term, 1988

City of New Haven, Connecticut,
Petitioner,

v.

John 0 . Marsh, Jr., Secretary of 
the Army, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT

Neil T. Proto 
Counsel of Record 
Kelley Drye & Warren 
Suite 600
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036
(202) 463-8333

Special Counsel
City of New Haven, CT

Brian Murphy 
Corporation Counsel 
City of New Haven 
770 Chapel Street 
New Haven, CT 06510
(203) 787-8232

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTIONS PRESENTED

This suit for declaratory and 
injunctive relief was brought by respon­
dent, Mall Properties, Inc., against re­
spondents, Secretary of the Army and of­
ficials of the United States Army Corps 
of Engineers, to challenge the denial of 
a permit to fill waters of the United 
States, in order to construct a regional 
shopping mall, under section 404 of the 
Clean Water Act, section 10 of the Rivers 
and Harbors Act and section 102(2)(C) of 
the National Environmental Policy Act. 
Following two years of review, the Dis­
trict Court granted summary judgment for 
respondent, Mall Properties, Inc., on the 
merits, vacated the Corps' denial deci­
sion as being contrary to law, enjoined 
the Corps on remand from engaging in

i



previously accepted, long-standing regu­
latory practice (the consideration of 
social and economic, as well as environ­
mental effects of the project) and did 
not retain jurisdiction. Petitioner, 
City of New Haven, which had successfully 
sought permit denial before the Corps and 
was granted intervention under Rule 24(a) 
of the Federal Rules of Civil Procedure 
by the District Court, appealed. The 
First Circuit Court of Appeals dismissed 
the appeal because the District Court 
remand order was not a final judgment. 
The Court of Appeals further held that 
New Haven could not appeal because the 
respondent, Secretary of the Army, chose 
not to appeal.

The questions presented are:
1. Whether, under the Adminis­

trative Procedure Act and 28 U.S.C.
ii



§ 1291, a District Court decision grant­
ing summary judgment on the merits, va­
cating an agency decision based on a new 
legal standard and enjoining previously 
accepted, long-standing federal agency 
practice on remand is not a "final deci­
sion" because the District Court did not 
yet grant the respondent, Mall Proper­
ties, Inc., ultimately what it wanted 
(i. e. , a fill permit to construct a re­
gional shopping mall).

2. Whether 28 U.S.C. § 1291 
forbids a successful party before a fed­
eral agency and one granted intervention 
under Rule 24(a) of the Federal Rules of 
Civil Procedure, from appealing an ad­
verse District Court decision because the 
federal agency chooses not to appeal.

iii



PARTIES TO THE PROCEEDINGS 
The petitioner is the City of

New Haven, Connecticut. The respondents 
are John 0. Marsh, Jr., Secretary of the 
Army, Lt. General E. R. Heiberg, Chief of 
the United States Army Corps of Engi­
neers, Col. Thomas A. Rhen, Division En­
gineer, New England Division and the 
United States Army Corps of Engineers, 
Department of the Army. The respondents 
also include Mall Properties, Inc., a 
corporation organized under the laws of 
the State of New York that maintains its 
principal office in the City and County 
of New York.

iv



TABLE OF CONTENTS

Page
OPINIONS BELOW ....................  2
JURISDICTION ......................  2
CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED . 3
STATEMENT.......................... 4
REASONS FOR GRANTING THE PETITION. . 23
CONCLUSION........................ 52
ADDENDUM.......................... la

APPENDIX
(Separate Volume)

Appendix A .......................la
Appendix B .......................3a
Appendix C ......................24a
Appendix D ......................25a
Appendix E ......................85a
Appendix F ......................93a
Appendix G .....................102a
Appendix H .....................104a

- v -



TABLE OF AUTHORITIES
CASES PAGE

Animal Lovers Volunteer Assoc, 
v. Weinberger. 765 F.2d 937 
(9th Cir. 1985)............  45, 47

Bachowski v. Userv. 545 F.2d
363 (3d Cir. 1976)........  22

Bender v. Clark. 744 F.2d 1424
(10th Cir. 1984).......... passim

Bersani v. EPA.
674 F. Supp. 405 (N.D.N.Y.
1987), aff'd. Nos.87-6275,
87-6295, slip op.
(2d Cir. June 8, 1988) . . .  42

Bersani v. EPA. Nos. 87-6275,
87-6295, slip op.
(2d Cir. June 8, 1988) . . .  46

Brown Shoe Co. v. United
States. 370 U.S. 294 (1962). 47

Bryant v. Yellen.
447 U.S. 352 (1980)........  48, 49

Catlin v. United States.
324 U.S. 229 (1945)........  28

Chevron U.S.A.. Inc, v. NRDC.
467 U.S. 837 (1984)........  26, 40,

41, 43Cohen v. Beneficial
Industrial Loan Corn.,
337 U.S. 541 (1949)........  29, 33

- vi -



Davis v. Coleman. 521 F.2d
661 (9th Cir. 1975).......  46

Dickinson v. Petroleum 
Conversion Coro.,
338 U.S. 507 (1950)........  34, 36

Eisen v. Carlisle and 
Jaccruelin. 417 U.S.
156 (1974) ................  passim

CASES - Continued PAGE

Faulkner Hospital Corp. 
v, Schweicker. 537 
F. Supp. 1058 (D. Mass.1982), aff’d . 702 
F.2d 22 (1st Cir. 1983). . . 17

Faulkner Hospital Corp. 
v. Schweicker. 702 
F.2d 22 (1st Cir. 1983). . . 30

Gillespie v. United 
States Steel Corp.,
379 U.S. 148 (1964)........  28

Glass Packaging Institute 
v. Reaan. 737 F.2d 1083 
(d .c . cir.), cert, denied/
469 U.S. 1035 (1984) . . . .  45, 47

Mall Properties. Inc, v.
Marsh. 672 F. Supp. 561 
(D. Mass. 1987), aff'd.
841 F .2d 440 (1st Cir.
1988), petition for re­
hearing denied. No.
87-1827, slip op.
(1st Cir. April 7, 1988) . . passim

vii



CASES - Continued PAGE
McGourkev v. Toledo & O.C.

Rv.. 146 U.S. 536 (1892) . . 23, 34
Metropolitan Edison Co. 

v. People Against 
Nuclear Energy (PANE),
460 U.S. 766 (1983)........ passim

Morton v. Ruiz.
415 U.S. 199 (1974)........  42

NL Industries, Inc, v.
Secretary of Interior. 777 
F.2d 433 (9th Cir. 1985) . . 49

Olmsted Citizens For a 
Better Community v.
United States, 793
F.2d 201 (8th Cir. 1986) . . 44

Ono v. Harper. 592 F. Supp.
698 (D. Haw. 1983)........  45

Pacific Northwest Bell 
Telephone Co. v. Dole,
633 F. Supp. 725
(W.D. Wash. 1986)..........  45

Paluso v. Mathews,
573 F .2d 4 (10th Cir. 1978). 47

Pauls v. Secretary of 
Air Force, 457 F.2d 
294 (1st Cir. 1972)........  21, 29

Rochester v. United States 
Postal Service. 541 F.2d 
967 (2d Cir. 1976)........  46

viii



CASES - Continued EASE
Sagebrush Rebellion, Inc, 

v. Watt, 713 F .2d 525 
(9th Cir. 1983). . . .

Transportation-Communication Division v. St. Louis-San 
Francisco Rw. . 419 F.2d 933 
(8th Cir. 1969), cert. 
denied, 400 U.S. 818 (1970).

Udall v. Tallman.
380 U.S. 1 (1965)..........

United States v. Alcon
Laboratories. 636 F.2d 876 
(1st Cir.), cert. denied,
451 U.S. 1017 (1981) . . . .

United States v. AT&T. 642
F.2d 1285 (D.C. Cir. 1980) .

United States v. Pern,
289 U.S. 352 (1933)........

Zabel v. Tabb. 430 F.2d 199 
(5th Cir. 1970), cert. 
denied. 401 U.S. 910 (1971).

STATUTES
Administrative Procedure

Act, 5 U.S.C. § 706(2)(A). .

28 U.S.C. § 1254(1) 
28 U.S.C. § 1291. .

- ix -

49

30

42

21

49, 51 

41

41

3, 18, 
23, 24
3
passim



Clean Water Act,
33 U.S.C. § 1344 ........... passim

Rivers and Harbors Appropria­
tion Act of 1899,
33 U.S.C. § 403............. passim

STATUTES —  Continued PAGE

National Environmental 
Policy Act of 1969,
42 U.S.C. § 4321 .......... passim
42 U.S.C. § 4331(b)........ passim
42 U.S.C. § 4332(2)(C) . . . passim 

REGULATIONS
Public Interest Review Regula­

tion of the United States 
Army Corps of Engineers,33 C.F.R. § 320.4(a) . . . . 333 C.F.R. § 320.4(g) . . . . 3, 12

13
Regulations of the Council

on Environmental Quality,40 C.F.R. § 1502.16........ 440 C.F.R. § 1508.7 ........ 4, 14
2640 C.F.R. § 1508.8(a). . . . 440 C.F.R. § 1508.8(b). . . . 4, 14
4740 C.F.R. § 1508.14........ 4, 26

MISCELLANEOUS
Connecticut Bluebook (1987 ed). 17
Federal Rule of Civil

Procedure 24(a)............ 7, 48
49



MISCELLANEOUS - Continued PACE

Federal Rule of Civil
Procedure 54 ..............

Final Environmental Impact
Statement, § § IV-10, IV-21, 
IV-22, IV-29, IV-31-34 . . .

32

6-7



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1988

NO.
CITY OF NEW HAVEN, CONNECTICUT,

PETITIONER,
V.

JOHN 0. MARSH, JR., SECRETARY OF 
THE ARMY, ET AL.

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIRST CIRCUIT

The City of New Haven, Connecti­
cut respectfully petitions for a writ of 
certiorari to review the judgment of the 
United States Court of Appeals for the 
First Circuit in this case.



OPINIONS BELOW
The opinion of the Court of Ap­

peals (App. B)— ^ is reported at 841 
F.2d 440 (1st Cir. 1988). The denial of 
the petition for rehearing and suggestion 
for rehearing gn banc (App. A) is unre­
ported at this time. No. 87-1827, slip 
op. (1st Cir. April 7, 1988). The memo­
randum and order of the District Court 
(App. D) is reported at 672 F. Supp. 561 
(D. Mass. 1987).

JURISDICTION
The judgment of the Court of 

Appeals (App. B) was entered on March 11, 
1988. The petition for rehearing and
suggestion for rehearing gn banc (App. A)

The opinions below and other rele­
vant materials are bound in a sepa­
rate Appendix, hereinafter referred 
to as "App. ___."

2



diction of this Court is invoked under 28 
U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS INVOLVED

This case involves issues under 
28 U.S.C. § 1291 (Add. at 5a)-7; rele­
vant provisions of the Clean Water Act, 
33 U.S.C. § 1344 (Add. at 4a-5a); the 
Rivers and Harbors Act, 33 U.S.C. § 403 
(Add. at 3a-4a); the National Environmen­
tal Policy Act, 42 U.S.C. § § 4321, 
4331(b) & 4332(2)(C)(Add. at la-3a) ; the
Administrative Procedure Act, 5 U.S.C. 
§ 706(2)(A)(Add. at 5a); regulations of 
the United States Army Corps of Engi­
neers, 33 C.F.R. § 320.4(a) & (q) (Add.
at 6a-8a); regulations of the Council on

was denied on April 7, 1988. The juris­

The texts of all cited statutes and 
regulations are set forth in the 
Addendum to this Petition, herein­
after referred to as "Add. at ___."

3



Environmental Quality, 40 C.F.R. § § 
1502.16, 1508.7, 1508.8(a), (b), & 
1508.14 (Add. at 8a-lla).

STATEMENT
1. This suit for declaratory 

and injunctive relief was filed by re­
spondent, Mall Properties, Inc., in the 
United States District Court for the Dis­
trict of Massachusetts on October 29, 
1985 against the respondent, Secretary of 
the Army and various officials of the 
United States Army Corps of Engineers 
("U.S. ACOE" or "Corps"), under section 
404 of the Clean Water Act ("CWA"), 33 
U.S.C. § 1344, section 10 of the Rivers 
and Harbors Act ("RHA"), 33 U.S.C. § 403 
and section 102(2)(C) of the National 
Environmental Policy Act ("NEPA"), 42 
U.S.C. § 4332(2)(C). Mall Properties, 
Inc. challenged the final decision of the

4



New England Division of the U.S. ACOE 
denying its application for a permit to 
deposit one million cubic yards of fill 
onto the floodplains and wetlands of the 
Quinnipiac River in North Haven, Connect­
icut in order to construct a 1.2 million 
square foot regional shopping mall. The 
primary basis for its challenge was that 
the U.S. ACOE was without statutory 
authority to consider, as part of its 
permit denial decision, the adverse so­
cial, economic and racial effects of the 
proposed mall on the region, particularly 
the City of New Haven.

2. a. The City of New Haven is 
one of the nation’s oldest (founded in 
1638) and poorest municipalities (7th in 
the United States according to the 1980 
census; 23% of its residents are below 
the poverty level). It is immediately

5



adjacent to North Haven and is the larg­
est municipality within the 10-town re­
gion that would be served by the proposed 
mall. Moreover, the proposed mall is 
less than 8 miles from New Haven's cen­
tral business district, easily accessible 
by numerous roadways from various loca­
tions throughout the region (including 
New Haven) and situated on the Quinnipiac 
River, which flows downstream through New 
Haven and into its Harbor. The Quin­
nipiac River has historically been a 
source of serious flooding problems.

b. The proposed North Haven 
Mall would generate 55,000 motor vehicle 
trips per day, 500 to 3,077 tons of solid 
waste per year, and require the filling 
of more than 30 acres of wetlands and 
open water. Final Environmental Impact 
Statement ("EIS") at IV-10, IV-22,

6



City of New Haven, the proposed mall 
would result in the estimated loss of 600 
jobs, more than one million dollars a 
year in tax revenues (1982 dollars), ap­
proximately 20 percent of its retail 
sales, one or more major department
stores and other ancillary, adverse so­
cial, economic and racial effects. Final 
EIS, IV-31-34, IV-29.

3. The City of New Haven 
actively opposed the respondents' appli­
cation before the U.S. ACOE on environ­
mental (i.e .. flooding, wetlands loss), 
social and economic grounds, including 
the adverse aesthetic and racial strati­
fication impact it will have on the 
region. New Haven was granted interven­
tion as of right under Federal Rule of 
Civil Procedure 24(a) in the District

IV-21. With specific reference to the

7



Court. App. E. The District Court
stated:

The court finds that 
the City of New Haven has 
met the requirements for 
intervention of right. The 
City of New Haven seeks to 
intervene under Rule 24 
primarily to protect the 
economic interests the 
Corps allegedly relied upon 
in denying the permit. 
Therefore, unlike the envi­
ronmental groups, the City 
of New Haven is directly 
interested in the "econom­
ics" question which plain­
tiff has raised by this 
action. An adverse ruling 
by the court on this issue 
would limit the City's 
ability to protect its in­
terests on remand.

Plaintiff [Mall Prop­
erties, Inc.] argues that 
the Corps adequately repre­
sents the City's interests 
in this action. The City 
replies that the government 
may not represent its in­
terests adequately, arguing 
that the government has a 
duty to protect the public 
interest, while the City 
seeks to protect its unique 
interests. The City has 
also outlined the history 
of disagreements between

8



the Corps and the City
which have arisen during 
the permit litigation be­
fore the Corps. The court
also notes that the Corps
does not object to the 
City's intervention in this 
case.

App. E at 90a-92a. The District Court 
denied the motion of national and local 
(Connecticut and North Haven-based) envi­
ronmental and citizens groups to inter­
vene (id. at 92a), despite the participa­
tion of most such groups in the admin­
istrative proceeding below. No appeal 
was taken from the District Court's 
ruling.

4. The U.S. ACOE, following 
six years of review and the preparation
of an Environmental Impact Statement 
("EIS") under the National Environmental 
Policy Act (42 U.S.C. § 4332(2)(C)), 
denied respondent Mall Properties' 
application in a "proposed Final Order"

9



of November 15, 1984 v (App. F) and a
"Final Order" of August 20, 1985 (App.

3/H). The August 1985 denial was based

3/ In November 1984, the New England 
Division Engineer affixed his sig­
nature to a 45-page "Record of 
Decision" ("ROD")(App. F) denying 
respondents’ application for a fill 
permit because of: (i) the "cumula­
tive impact from other past, present 
and reasonably foreseeable future 
actions affecting wetlands, flood 
plains and flooding"; (ii) the "ir­
retrievable loss of 25 acres of wet­
lands"; (iii) "negative impacts on 
the quality of life in North Haven"; 
and (iv) adverse "socio-economic 
impacts, in particular, those af­
fecting the City of New Haven." Id. 
at 98a. The factual basis for this 
last reason for permit denial was, 
inter alia, that:

New Haven provides services and 
an environment for a community 
with a sizeable low to moderate 
income population. This popula­
tion is less able to travel to 
reach services at other loca­
tions. It is more dependent 
upon a vibrant, viable city to 
provide services and a healthy, 
safe and desirable environment.

FOOTNOTE CONTINUED

10



on three grounds: (i) "a net loss in
wetland resources" (App. H at 270a); (ii)
"flooding impacts" (id. at 270a); and
(iii) the "socio-economic impacts this
project would have on the City of New
Haven" (id . at 270a) .

Before the Corps, and during the 
District Court proceeding, the Department

FOOTNOTE 2/ CONTINUED:
Id. at 98a. This November 1984 ROD 
was not made public. A copy was 
made available only to the respon­
dent, Mall Properties, Inc. The 
fact of its existence was not made 
known to New Haven until June 1985. 
Neither the November 1984 ROD nor 
the August 1985 ROD are designated 
as "proposed" or "final" —  termi­
nology used only by the District 
Court.
It is New Haven's position, sup­
ported explicitly by the New England 
Division Engineer, that the August 
1985 ROD is premised expressly on 
and can only be understood in refer­
ence to the November 1984 ROD. See 
App. H at 155a.

11



of Interior supported the Corps' concerns 
about wetlands. App. H at 132a. Fur­
thermore, the Department of Housing and 
Urban Development and the Governor's Of­
fice of Policy and Management supported 
the Corps' concerns about adverse social, 
economic and racial impacts (id., at 139a) 
and the Federal Emergency Management 
Agency supported the Corps' concerns 
about flooding (id. at 142a) . All such 
supporting comments were submitted to the 
Corps as part of the EIS process, consid­
ered by it pursuant to NEPA and in accor­
dance with its "Public Interest Review" 
regulation (33 C.F.R. § 320.4)(which re­
quires consideration of "economics" and 
"the needs and welfare of the people," 
promulgated pursuant to, inter alia. 
NEPA, CWA and the RHA (Add. 6a-8a)), and

i
12



identified in its August 1985 ROD. App. 
H at 266a.

5.a. The District Court, on 
cross-motions for summary judgment filed 
by all the parties, vacated the U.S. ACOE 
decision on September 8, 1987. Mall
Properties. Inc, v. Marsh, 672 F. Supp. 
561 (D. Mass. 1987). App. D. It deter­
mined that the permit denial decision, 
based on the Corps' Public Interest Re­
view regulations (33 C.F.R. § 320.4), 
NEPA, the CWA and the RHA, "was not made 
in accordance with law" because, inter 
alia, "the Corps exceeded its authority . 
. . by basing its denial of the permit on
socio-economic harms [to the region and 
the City of New Haven] that are not prox- 
imatelv related to changes in the physi­
cal environment," caused by the fill. 
App. D at 26a (emphasis added)(relying on

13



the "standard" set forth in Metropolitan
Efl.is.Qh__Co. v. People Against Nuclear
Energy (PANE). 460 U.S. 766 (1983)).
Contrary to the position of the Petition­
er and the U.S. ACOE that, under the 
Council on Environmental Quality’s (CEQ) 
and U.S. ACOE's regulations, such econom­
ic and social impacts must be considered 
because they are "reasonably foresee­
able," (40 C.F.R. §§ 1508.8(b), 1508.7)
indirect effects of a regional mall on 
the region, the District Court stated: 
"The record reveals that these impacts 
would not result from any effect the mall 
would have on the physical environment 
generally or wetlands particularly. 
Rather, it is the economic competition 
for New Haven which would result from the 
mere existence of a mall anywhere in 
North Haven . . . [even though the] Corps

14



did find that there was no alternative
site for the mall in North Haven." App.

4/D at 36a.~
Moreover, although Metropolitan 

Edison involved only the threshold ques­
tion of whether an EIS was required in 
light of alleged psychological harm from 
the restart of an already existing facil­
ity (see 460 U.S. at 768), the District 
Court here (i) concluded the "proximately 
related" standard applied to all NEPA 
questions (including, for the first time, 
which impacts should be addressed follow­
ing a determination to prepare an EIS for 
a new project): and (ii) determined that
the reasoning of "pre-Metropolitan Edison

The District Court incorrectly 
stated that "North Haven is a suburb 
about 10 miles from New Haven, Con­
necticut." App. D at 26a-27a. As 
stated at the outset, New Haven and 
North Haven are adjacent to each 
other.

15



NEPA cases," including those from the 
5th, 6th, 7th and 2nd Circuits concerning 
whether reasonably foreseeable social and 
economic impacts had to be considered in 
an EIS that was premised on recognized 
environmental harm, have been "eliminated 
by Metropolitan Edison." App. D at 70a.

b. The District Court also 
stated that it "is elementary . . . that 
in our system of government, decisions 
concerning which competing constituency's 
economic interests ought to be preferred 
are traditionally made by democratically 
accountable officials," (App. D at 75a), 
such as the Governor of Connecticut but 
not the U.S. ACOE; and that, in the 
legislative history of the statutes in­
volved here, there "is no suggestion that

16



[the Corps] was perceived by those enact­
ing the relevant statutes to have exper­
tise concerning whether the economic in­
terests of aging cities or their newer
suburbs should as a matter of public pol-

5/icy be preferred." App. D at 75a.
Finally, the District Court, 

relying on the First Circuit's decision 
in Faulkner Hospital Corp. v. Schweicker, 
537 F. Supp. at 1071 (D. Mass. 1982),
aff'd. 702 F .2d 22 (1st Cir. 1983), va­
cated the U.S. ACOE decision, enjoined it 
from any further consideration of the 
mall's social, economic or racial impacts 
on the region, including New Haven, and

It should be noted that New Haven 
and North Haven were founded in the 
17th and 18th Centuries, respective­
ly. Connecticut Blue Book (1987 
ed.) .

17



remanded "for further proceedings consis­
tent with this decision." App. D at 
84a.^

The District Court did not 
retain jurisdiction. Additionally, 
throughout the District Court proceeding, 
the Justice Department —  on behalf of 
the Corps —  supported the August 1985 
permit denial decision. Moreover, no 
questions were raised about the adequacy 
of the evidence before the District Court 
or the need for the Court to postpone its

In its Complaint, respondent Mall 
Properties, Inc., sought a judgment 
“directing ACOE to issue Mall Prop­
erties the subject permits . . . ." 
(Complaint If 3b). At the suggestion 
of the District Court, respondent 
recognized that such relief was not 
available to it, and that, under the 
Administrative Procedure Act, 5 
U.S.C. § 706(2)(A), and other juris­
prudential considerations, the ap­
propriate judicial remedy was a re­
mand to the U.S. ACOE for further 
proceedings.

18



decision on the merits of the issues, 
pending some further factual development 
or the resolution of a legal issue by the 
U.S. ACOE.

6.a. The City of New Haven ap­
pealed on September 14, 1987. On Novem­
ber 19, 1987 —  after the expiration of 
the appeal period —  the Justice Depart­
ment informed the Court of Appeals, with­
out explanation, that it had determined 
not to appeal and that New Haven’s appeal 
should be dismissed. No reasoning, case 
citations, subsequent brief, memoranda or 
affidavit was ever filed by the Justice 
Department to support its motion, nor did 
the Court order it to do so, despite 
Petitioner's formal request. On December 
2, 1987, respondent Mall Properties 
stated that it was joining the Govern­
ment's motion to dismiss.

b. On March 11, 1988, a panel
19



of the Court of Appeals granted, without 
oral argument, the U.S. ACOE's motion to 
dismiss, concluding the "remand order" of 
the District Court is "not a final judg­
ment" and, therefore, not appealable un­
der 28 U.S.C. § 1291. App. B at 5a.

Focusing on Mall Properties' 
ultimate objective, (i.e.. to have the 
Corps grant the permit to build a region­
al mall) as being the controlling crite­
rion determining "finality," the Court of 
Appeals concluded that because "the Dis­
trict Court's remand order does not grant 
Mall ultimately what Mall wants," the 
"court's order is but one interim step in 
the process toward Mall's obtaining its 
ultimate goal." "The litigation," the 
Court stated, "has not ended." App. B at 
8a.

Moreover, although the Court of 
Appeals stated that "generally orders

20



remanding to an administrative agency are
not final, immediately appealable or­
ders," (id. at 10a) (citing Pauls v. Sec­
retary of Air Force. 457 F.2d 294 (1st 
Cir. 1972)), it also characterized other 
cases where appeals were allowed as "ex­
ceptions," to this general rule, such as 
United States v. Alcon Laboratories. 636 
F. 2d 876 (1st Cir.), cert. denied. 451 
U.S. 1017 (1981). The Court, recognizing 
that in one such "exception" —  Bender v. 
Clark, 744 F.2d 1424 (10th Cir. 1984) —  
the government was allowed to appeal from 
a substantive decision on the merits that 
required a remand, nonetheless concluded 
that because the U.S. ACOE did not appeal 
here, Bender had no application to New 
Haven. App. B at 16a-18a.

The Court of Appeals also con­
cluded that New Haven "has not been fore­
closed from participating in the proceed­
ings on remand" because "[p]resumably, it

21



can urge environmental reasons why the 
permits should be denied" (id. at 18a), 
and, after review by the Corps and a sub­
sequent District Court decision, New 
Haven can "appeal to this Court and . . . 
argue that the original permit denial 
. . . was proper . . . Id. at 18a. 
Thus, "review of the socio-economic issue 
the City now wants to present, is not 
denied; it is simply delayed." Id- at 
18a-19a.

Finally, the Court concluded 
that allowing the appeal "would violate 
. . . efficiency . . . ." Id- at 20a. 
Although stating that, "were review 
granted now and were we to conclude the 
District Court erred, an unnecessary ad­
ministrative proceeding could be averted
[fn. omitted]" (id. at 20a-21a), the
Court found, relyinq on Bachowski v.
dS-gry, 545 F.2d 363 (3d Cir. 1976), that

22



"wisdom" required that "we focus on sys­
temic, as well as particularistic, im­
pacts." Id. at 21a-22a.

7. On March 24, 1988, New
Haven filed its Petition for Rehearing
and Suggestion for Rehearing En Banc, 
which was denied by the First Circuit's
Order dated April 7, 1988. App. A.

REASONS FOR GRANTING THE PETITION
The decision of the Court of

Appeals establishes a pernicious, new 
rule for determining "finality" in judi­
cial review under the Administrative 
Procedure Act ("APA") that renders mean­
ingless the efforts of this Court, since 
at least McGourkev v. Toledo & O.C. Rv. . 
146 U.S. 536, 544-545 (1892), to provide
a modicum of protection to the debilitat­
ing effect of delaying justice to an ad­
versely affected party. As a practical 
matter, the Court of Appeals' opinion

23



restricts the criteria for determining
"finality" to one factor and to the ef­
fect on one party: whether the applicant 
received ultimately what i£ wanted from a 
federal agency (in this case, an econom­
ically valuable fill permit to construct 
a mall), regardless of the fact such 
relief is not judicially available. Un­
der such a standard, the Judicial Branch 
becomes an advocate for the applicant; 
assuring, in the end, that the substan­
tive content or the practical effect of a 
District Court decision will not be mean­
ingfully reviewed until the applicant 
extracts his alleged economic benefit 
from the Executive Branch. This Court, 
as argued below, has never articulated 
such a fundamentally unfair and constitu­
tionally inappropriate .rule. For this 
reason alone, review by this Court is 
warranted.

24



Here, however, much more is at 
stake. A new, substantive legal standard 
concerning NEPA, the CWA and the RHA has 
been articulated by the District Court. 
It is not trivial. Based on the misap­
plication of this Court's decision in 
Metropolitan Edison v. PANE, the District 
Court "eliminated" more than a decade of 
judicial precedents from the 2nd, 5th, 
7th and 6th Circuits (App. D at 70a); 
and, it enjoined the U.S. ACOE's long­
standing interpretation of its statutory 
obligations to consider the reasonably 
foreseeable- effects of a project and the 
"Public Interest," including economic 
effects and the welfare of the people, in 
rendering a permit decision. id. at 26a, 
77a, 79a, 83a, 84a. It also has raised 
troublesome questions about the continued 
viability of the Council on Environmental

25



Quality's NEPA regulations defining the 
"human environment" (40 C.F.R. § 1508.14) 
and "indirect" (40 C.F.R. § 1508.7) and 
"cumulative" impacts (40 C.F.R. 
§ 1508.7). See Add. at 11a, 9a. In the
end, the District Court impermissibly 
exceeded its role by failing to accord 
any deference to the U.S. ACOE's inter­
pretation of the CWA, NEPA and the RHA 
and the specific effects of this pro­
ject. Chevron U.S.A.. Inc, v. NRDC. 467
U.S. 837 (1984).

The District Court's decision 
remains unreviewed by the Court of Ap­
peals, unreviewable by the U.S. ACOE on 
remand, and unreviewable by the District 
Court under the law of the case doc­
trine. The incongruous effect on New 
Haven is deadening. We are estopped from 
challenging it below and precluded from 
appealing it now. Moreover, as a practi­
cal matter, the decision's reasoning is

26



stifling to any litigant who is dependent 
on the federal government —  in civil 
rights, equal employment opportunity or a 
broad range of environmental cases —  to 
vindicate an important public and judi­
cially cognizable issue directly affect­
ing such a litigant. Based on an inar- 
ticulated philosophy of government or the 
political discomfort of being on the 
"wrong side," an agency —  by not appeal­
ing —  can thwart the appeal of a party 
that was a successful proponent before 
the agency and, in the process, thwart 
the. agency’s statutory mission and, in 
this case, the meritorious reasoning of 
that agency after six years of study.

The Court of Appeals' decision 
warrants the timely exercise of this 
Court’s supervision on the question of 
"finality" and the appeal rights of an 
intervenor, the petitioner, City of New 
Haven.

27



l.a. The Court of Appeals' anal­
ysis is flawed in its premise. "We do 
not view the [District Court] remand or­
der," the Court of Appeals stated, "as 
meeting the traditional definition of a 
final judgment, that is, one which 'ends 
the litigation on the merits and leaves 
nothing for the court to do but execute 
the judgment,' Catlin v. United States. 
324 U.S. 229, 233 (1945)." App. B at 
8a. This Court has eschewed such a "tra­
ditional definition" as being either the 
beginning or the end of a proper analysis 
of whether a decision is "final" under 28 
U.S.C. § 1291. The correct analytical 
premise is that "a decision 'final' with­
in the meaning of § 1291 does not neces­
sarily mean the last order possible to be 
made in a case." Gillespie v. United 
s t9 t e?__steel Corp.. 379 U.S. 148, 152

28



(1964)(emphasis added). And, more re­
cently: "We know, of course, that § 1291
does not limit appellate review to 'those 
final judgments which terminate an action 
. . . , ' but rather that the requirement 
of finality is to be given a 'practical 
rather than a technical construction.'" 
Eisen v. Carlisle and Jacouelin, 417 U.S. 
156, 170-71 (1974)(emphasis added)(quot­
ing Cohen v. Beneficial Industrial Loan 
Corn.. 337 U.S. 541, 545 (1949)).

Having started on a faulty prem­
ise and inappropriate definition, the 
Court of Appeals strayed further. Seem­
ingly seeking a simple factual predicate 
to meet the "traditional definition," it 
further defied this Court's teachings and 
elevated a "verbal formula" (Eisen v. 
Carlisle and Jacguelin, 417 U.S. at 170), 
from Pauls v. Secretary of Air Force, 457

29



F.2d at 297-98)("generally orders remand­
ing to an administrative agency are not 
final, immediately appealable orders"), 
into a general rule; concluding that the 
word "remand" in the formulation of the 
District Court's relief is a talisman for 
lack of finality. It is not, as the 
Court of Appeals own case law (Faulkner 
Hospital Corn, v. Schweicker, 702 F.2d 22
(1st Cir. 1983), cited by the District

7 /Court, should have informed it.- The

The Court of Appeals' other cita­
tions undermined its own formulation 
of an alleged "rule" correlating a 
"remand" to a lack of finality. In 
each of the cases it cites, a sub­
stantive decision on the merits was 
expressly eschewed as premature 
(App. B at 8a-lla)(s££, e.g.. Trans­
portation-Communication Division v.
&£_.__ Louis-San Francisco Rw, . 419
F. 2d 933, 934 (8th Cir. 1969), cert. 
denied, 400 U.S. 818 (1970)), where­
in the remands involved were in­
tended to resolve a procedural or 
evidentiary deficiency, certainly 

FOOTNOTE CONTINUED

30



result: the Court of Appeals focused not 
on the "practical- (Eisen. 417 U.S. at 
170), but rather the "technical construc­
tion" of the District Court decision 
(i.e.. whether it was a "remand") and its 
singular effect on the attainment of the 
respondent, Mall Properties, Inc.'s ulti­
mate goal (a regional shopping mall).

The effect is a radical, perni­
cious departure from the practical, cau­
tious approach this Court has admonished 
lower courts to undertake in determining

FOOTNOTE 7/ CONTINUED:
not the case here. Moreover, the 
Court of Appeals strained its new 
"rule" beyond credulity by claiming 
that Bender v. Clark. 744 F.2d 1424 
(10th Cir. 1984) —  where the Court 
of Appeals concluded an appeal under 
28 U.S.C. § 1291 from a decision on 
the merits was permissible where the 
District Court had ordered a remand 
—  is distinguishable from this case 
only because it was the government, 
not another defendant, that sought 
appellate review.

31



"finality." In the end, the Court of
Appeals has taken a rule of limited ap-
plication (see n. 7, sunra). elevated it
beyond its purpose and established a
general rule of broad application to
every case involving a "verbal formula,"
(Eisen. 417 U.S. at 170), "remand to the 
agency," contrary to its own customary 
practice, the rule of the 10th Circuit in 
Bender v. Clark. 744 F.2d at 1426, and 
based, inappropriately, on the economic 
agenda of the respondent, Mall Proper­
ties, Inc., vis-a-vis the Executive 
Branch.

b. The Court of Appeals failed 
to recognize that the District Court 
granted summary judgment, under Rule 54 
of the Federal Rules of Civil Procedure, 
on the substantive merits of the single 
issue all the parties agreed was the fun­
damental legal linchpin to the U.S. ACOE

32



permit denial: whether, under the CWA,
the RHA, NEPA and the U.S. ACOE "Public 
Interest Review" regulation, the ACOE had 
the authority to consider, inter alia. 
the social and economic effects of the 
proposed regional mall on the region, 
particularly New Haven. The District 
Court by resolving the issue as a matter 
of law, vacating the agency's decision 
and enjoining the Corps from any further 
consideration of such effects, clearly 
acted in a manner that “was not 'tenta­
tive, informal or incomplete' . . . but 
settled conclusively [respondent Mall 
Properties, Inc.'s] claim . . . ." 
Eisen, 417 U.S. at 171 (quoting Cohen. 
337 U.S. at 546). It was, in the words 
of 28 U.S.C. § 1291, a "final decision."

c. This Court has not explic­
itly articulated a practical construction 
(see Eisen, 417 U.S. at 170), concerning

33



"finality" directly applicable to the 
broad range of APA cases wherein an agen­
cy decision is "remanded" for further 
consideration. The absence of such es­
sential guidance is, once again, a grow­
ing lack of harmony (see McGourkev v. 
Toledo & O.C. Rv.. 146 U.S. 536 (1892)), 
among the Circuits and the formation of a 
wholly inappropriate and harmful rule 
within the First Circuit.

2.a. "[T]he danger of denying 
justice [to New Haven] by delay," (Dick­
inson v. Petroleum Conversion Corp.. 338 
U.S. 507, 511 (1950)), permeates the
Court of Appeals decision. More is at 
stake, however, than the indefensible 
consequence of delaying resolution of the 
issue concerning the U.S. ACOE's author­
ity to consider social and economic ef­
fects. New Haven has been denied the 
most elementary notions of justice. By

34



"delaying" New Haven's ability to have 
the issue even considered until it 
reaches the Court of Appeals again, the 
decision places petitioner in a very pre­
dictable "catch-22"; constantly forced to 
argue that it has a right to be heard on 
a legal issue that neither the U.S. ACOE 
nor the District Court have any duty to 
consider. Under such circumstances, New 
Haven's "standing" under Article III to 
even argue economic or social reasons for 
permit denial would certainly be chal­
lenged. So too would New Haven's stand­
ing to argue some "physical environmen­
tal" issues as that term is defined by 
the District Court. Moreover, it could 
be two more rounds of procedural and 
jurisdictional (i.e., standing) litiga­
tion before the Court of Appeals reaches 
the merits of the social-economic issue, 
if ever. The U.S. ACOE could deny the

35



permit again, on other grounds, and the 
District Court could affirm the denial.

This, of course, is not the end 
of the serious impediments the Court of 
Appeals has created. Its analysis of res 
judicata and law of the case provides 
doubtful comfort. Dickinson. 338 U.S. at 
511. In order to diminish the risk that 
the Court of Appeals is incorrect on the 
issues of "finality,- res judicata and 
law of the case, New Haven is, as a prac­
tical matter, precluded from seeking ju­
dicial review in any other jurisdiction 
except Massachusetts even though the Dis­
trict Court below did not retain juris­
diction and petitioner is entitled to 
file any subsequent challenge to the 
Corps in Connecticut or the District of 
Columbia. "This scenario of 'possibil­
ities' is too conjectural to avoid reach­
ing a more just result" (Bender v. Clark.

36



744 F.2d at 1428), particularly where, as 
here, the Court of Appeals acknowledged 
that "were review granted now and were we 
to conclude the District Court erred, an 
unnecessary administrative proceeding 
could be averted." App. B at 21a.

b. By making the attainment of 
the respondent, Mall Properties, Inc.'s, 
economic goal the essential focus of its 
analysis, the Court of Appeals made no 
meaningful effort to undertake an evalua­
tion of the effect of its decision on the 
parties. There is no "inconvenience and 
cost [ ]," (Eisen, 417 U.S. at 171), to
Mall Properties, Inc. in the immediate 
resolution of the legal issue i£ has 
wanted resolved since filing its Com­
plaint in October 1985. There is no dis- 
cernable harm to the U.S. ACOE; no gov­
ernment project is at stake nor is the 
filling of wetlands or the construction

37



of suburban shopping malls a statutory or 
policy objective. The adverse harm to 
New Haven and the the administration of 
the CWA, NEPA and the RHA is clear and 
immediate.

The City of New Haven has ac­
tively opposed the construction of the 
North Haven Mall since 1980. It took the 
U.S. ACOE almost six years to render its 
ROD, 45 pages in length, denying the per­
mit. The litigation has now consumed 
almost three additional years. For a 
municipality like New Haven —  the 7th 
poorest in the United States, according 
to the 1980 census, for cities over 
100,000 —  such an effort has placed a 
substantial burden on New Haven's tax­
payers. Moreover, the resolution of the 
legal issues in this case are of funda­
mental importance to the entire metro­
politan region.

38



c. The fundamental flaw in the 
District Court's reasoning stemmed from 
its wholly unwarranted intrusion into 
interpreting the statutory obligations of 
the U.S. ACOE. Relying on the respon­
dent, Mall Properties, Inc.'s, character­
ization of the permit denial as being 
based on economic competition^  rather 
than social and economic impacts. the 
District Court decided that: (i) the 
U.S. ACOE is not "democratically account­
able" (App. D at 75a) and cannot make 
such a "competition" judgment; and, 
therefore, (ii) the Court "is called upon 
to discern the scope of the authority to 
consider economic factors which has been

App. D at 36a. The notion of "eco­
nomic competition" was nowhere ad­
dressed by the U.S. ACOE in its ROD 
and clearly not reflected in the 
"Conclusions" reached in its Novem­
ber 1984 or August 1985 ROD'S.

FOOTNOTE CONTINUED
39



delegated to, and exercised by, the
Corps.” at 42a. Unable to find any
direct legislative history under the RHA, 
CWA or NEPA, that "unambiguously ex­
pressed [the] intent of Congress" (Chev­
ron U.S.A., Inc, v. NRDC. 467 U.S. at 
843), that the U.S. ACOE was precluded 
from considering social and economic fac­
tors, the District Court grafted onto 
that history this Court's "proximately 
related" standard from Metropolitan Edi­
son (id. at 59a-60a), although such a 
standard is nowhere referred to or cited

FOOTNOTE £./ CONTINUED:
Moreover, no federal or state agency 
raised any question about "competi­
tion"; all participants before the 
U.S. ACOE —  HUD, the Department of 
the Interior/U.S. Fish and Wildlife 
Service and the Connecticut Office 
of Policy and Management —  stated 
that adverse environmental, social, 
economic or racial impacts warranted 
permit denial.

40



in the legislative history in this con­
text. Moreover, the District Court made 
no meaningful effort to assess whether 
"the agency's [interpretation] is based 
on a permissible construction of the 
statute" (Chevron U.S.A.. Inc, v. NRDC. 
467 U.S. at 843), despite the fact such 
social or economic effects have been: 
(i) considered by the Corps since 1933 
(£££ United States v. Pern. 289 U.S. 352 
(1933); Zabel v. Tabb. 430 F.2d 199, 207 
(5th Cir. 1970), cert, denied. 401 U.S. 
910 (1971) (The RHA "itself does not put
any restrictions on denial of a permit or 
the reasons why the Secretary may refuse 
to grant a permit . . . .")); (ii) inte­
grated into the Corps' Public Interest 
Review regulation since 1974 (App. D at 
51a); (iii) required, under the rea­
sonably foreseeable standard, to be

41



considered by the CEQ regulations^7; 
and (iv) formally considered, based on 
six years of legal and factual analysis 
in this case and, with even greater 
breath and detail, in Bersani v. EPA. 674 
F. Supp. 405 (N.D.N.Y. 1987), aff'd. Nos. 
87-6275, 87-6295, slip op. (2d Cir. June
8, 1988)(economic viability and market­
place impacts of proposed mall on the 
region considered by the U.S. ACOE and 
EPA in CWA permit decision). The Dis­
trict Court, in the end, emerged as the 
"democratically accountable" (App. D at 
75a) Branch of government, failed to show 
any deference to the U.S. ACOE's inter­
pretation of its obligations (Udall v. 
Ta1lman. 380 U.S. 1, 16 (1965); Morton v. 
Ruiz, 415 U.S. 199, 231 (1974)), and

In fact, the District Court does not 
even cite the CEQ regulations.

42



Msubstitute[d] its own construction of a 
statutory provision for a reasonable in­
terpretation made by the . . . agency." 
Chevron U.S.A., Inc, v. NRDC, 467 U.S. at 
844.

The U.S. ACOE, for an indetermi­
nate period of time, is now free to im­
pose within the First Circuit —  if not 
elsewhere —  a new legal standard con­
cerning indirect, induced or cumulative 
social and economic impacts that departs 
from its previously accepted practice, as 
acknowledged by the U.S. ACOE in the Dis-. 
trict Court. See Federal Defendant's 
Reply Memorandum, on Cross-Motions for 
Summary Judgment at 9. At stake is the 
daily administration of three major 
statutes: NEPA, CWA and RHA.

Moreover, no court —  including 
the Court of Appeals for the Eighth Cir­
cuit relied upon by the District Court 
here (App. D at 68a) —  has applied the

43



"proximately related" standard beyond the 
limited, threshold question of whether an 
EIS should be prepared. In Olmsted Cit­
izens_For a Better Community v. United
States, 793 F.2d 201 (8th Cir. 1986), the 
Eighth Circuit was confronted with the 
threshold question of whether an EIS was 
required based not on any allegations of 
environmental harm but on the possible 
"introduction of weapons and drugs into 
the area . . . [and] . . .  an increase in 
crime . . . ." Id., at 205. It concluded 
an EIS was not necessary, relying on the 
"proximately related" standard of Metro­
politan Edison, 460 U.S. 766 (1983), the 
fact that “we are not convinced that Olm­
sted Citizens has identified any signif­
icant impacts on the physical environment 
. . ." (Olmsted. 793 F.2d at 206) and 
that "[e]ven before Metropolitan Edison" 
(id.), a similar result would have lied. 
Moreover, subsequent court decisions have

44



interpreted Metropolitan __Edison to be
limited to the threshold question of
whether NEPA applies in the absence of
recognized environmental impacts. See
Pacific_Northwest_Bell Telephone Co. v .
Dole. 633 F. Supp. 725, 727 (W.D. Wash.
1986); Ono v. Harper. 592 F. Supp. 698, 
701 (D. Haw. 1983); Animal Lovers Volun­
teer Assoc, v. Weinberger. 765 F.2d 937, 
938 (9th Cir. 1985); Glass Packaging In­
stitute v. Renan. 737 F.2d 1083, 1091-93
(D.C. Cir.), cert, denied, 469 U.S. 1035 
(1984). Here, it is beyond peradventure 
that: (i) significant physical, environ­
mental impacts were present (i.e.. depos­
iting one million cubic yards of fill; 
harm to 30 acres of wetlands; flooding 
problems, etc.); (ii) the U.S. ACOE pre­
pared a multi-volume EIS —  a legal and 
factual determination not challenged be­
low; (iii) numerous federal and state 
agencies substantiated the environmental,

45



social and economic impacts of the pro­
ject; and (iv) the demonstrable, physi­
cal, economic and social impacts on the 
region, including New Haven, was thor­
oughly documented and found by the U.S. 
ACOE in its EIS and ROD'S. Under such 
circumstances, the District Court deci­
sion —  by extending the "proximately 
related" standard of Metropolitan Edison 
and precluding consideration of the re­
gional mall's social and economic effects 
on the region —  is directly in conflict 
with those of at least the 2nd and 9th 
Circuits (Rochester v. United States Pos­
tal Service. 541 F.2d 967, 973 (2d Cir.
1976); ge.rg.ani__3L«__£PA, No s . 87-6275,
87-6295, slip op. (2d Cir. June 8, 1988); 
Davis v. Coleman. 521 F.2d 661, 676-77
(9th Cir. 1975)); the CEQ regulations 
requiring consideration of "reasonably 
foreseeable" effects (including social 
and economic effects that are "later in

46



time or farther removed in distance 40
C.F.R. 1508.8(b)); and the Corps' own 
Public Interest Review regulation; and, 
without reason and contrary to sound ju­
dicial administration, the limited hold­
ings of the 9th (Animal Lovers Volunteer 
Assoc, v. Weinberger. 765 F.2d at 938-39) 
and D.C. Circuits (Glass Packaging Insti­
tute v. Reaan. 737 F.2d at 1091).

Certainly, the "issue is a seri­
ous and unsettled one . . . Bender v ,  

Clark. 744 F.2d at 1428. At stake is the 
uncertainty in outcome of such an impor­
tant matter and the rights of numerous 
permit applicants, the U.S. ACOE and the 
public (Paluso v. Mathews. 573 F.2d 4, 8 
(10th Cir. 1978)), as well as the fate of 
thousands of acres of wetlands within New 
England, if not elsewhere; all placed at 
risk without appellate review. "The pub­
lic interest . . . would lose by such a 
procedure." Brown Shoe Co. v. United

47



States, 370 U.S. 294, 309 (1962).
3. The Court of Appeals deter­

mination that the Government enjoys some 
special status vis-a-vis intervenors with 
respect to appellate rights (App. B at 
14a-15a) conflicts directly with Brvant 
V ,  Yellen, 447 U.S. 352, 366-68 (1980), 
the protection afforded by Rule 24(a) of 
the Federal Rule of Civil Procedure and 
the precedents of at least the 9th and 
D.C. Circuits. If not corrected, its 
consequences will be insidious; lurking, 
perhaps inconspicuously for now, with 
grave effect on those who, in the context 
of litigation, are dependent on the gov­
ernment to vindicate individual rights or 
seek judicial redress on matters of pub­
lic importance.

The City of New Haven was 
granted the right to intervene under Fed­
eral Rule of Civil Procedure 24(a). App. 
E at 86a. As an intervenor, New

48



Haven has the right to appeal an adverse 
ruling regardless of whether the govern­
ment seeks such an appeal. Brvant v. 
Yellen. 447 U.S. at 366-68; NL Indus­
tries, Inc, v. Secretary of Interior. 777 
F .2d 433, 436 (9th Cir. 1985); United 
States v. AT&T. 642 F.2d 1285, 1293-94 
(D.C. Cir. 1980). It would defeat the 
entire purpose of Rule 24(a) if the find­
ing of "inadequate representation" had 
application only in the District Court. 
The Government could, with impunity and 
without explanation, simply defeat the 
interests of the intervenor by acquiesc­
ing in the views of its adversary through 
"settlement," whether expressed in formal 
terms or undertaken with the quiet pas­
sage of the time beyond which it must 
appeal. See Sagebrush Rebellion, Inc, v. 
Watt. 713 F.2d 525, 528 (9th Cir. 1983).

The insidious nature of the 
Court of Appeals determination also is

49



founded in the absence of an explanation 
for the Government’s conduct. As this 
Court is aware, the Record of Decision 
was issued by the New England Division of 
the U.S. ACOE; defending that decision in 
litigation is not its responsibility. 
The Justice Department's determination 
not to appeal may have been premised on a 
philosophical discomfort with the New 
England Division's denial of a permit or 
the political discomfort of being on the 
"wrong side" in the Court of Appeals. It 
also may have simply missed the jurisdic­
tion deadline for filing a notice of ap­
peal. Its motion to dismiss New Haven's 
appeal in this case was made without ci­
tations or legal argument. In fact, in 
the 5 months the U.S. ACOE's motion was 
pending, it was never requested by the 
Court of Appeals —  despite our insis­
tence —  to explain either why it was 
made or what the effect would be if this

50



appeal proceeded. Nonetheless, the Court 
of Appeals fashioned a rule denying an 
intervenor from appealing based, in part, 
on its own assumptions, or those ex­
tracted from other cases, as to the Gov­
ernment's motivation or the effect on New 
Haven. In the end, it protected the U.S. 
ACOE decision not to appeal, imposed 
enormous litigation burdens on New Haven 
(let alone on others who actively opposed 
the issuance of the permit before the 
U.S. ACOE) and radically altered the fac­
tual and legal posture of the case, with­
out any reasoning articulated by the 
rule's primary beneficiary, the U.S. ACOE.

In any event, New Haven is en­
titled to "all the prerogatives of a par­
ty litigant" (United States v. AT&T. 642 
F.2d at 1294), including the right to 
appeal since, as is abundantly obvious 
here, New Haven’s interests were "not

51



adequately represented in the decision 
[by the U.S. ACOE] not to appeal." Id.

CONCLUSION
The petition for a writ of cer­

tiorari should be granted.
Respectfully submitted,

Neil T. Proto 
Kelley Drye & Warren 
Suite 600
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 463-8333

Brian Murphy 
Corporation Counsel 
City of New Haven 
770 Chapel Street 
New Haven, CT 06510 
(203) 787-8232

July 5, 1988

52



ADDENDUM



ADDENDUM
STATUTORY PROVISIONS AND REGULATIONS INVOLVED

1. Section 101(b)(5) of the National
Environmental Policy Act of 1969, 42
U.S.C. § 4331(b) provides in perti­
nent part:

(b) In order to carry out the 
policy set forth in this chapter 
[42 U.S.C.S. §§ 4321 ei sea. 1 .
it is the continuing responsi­
bility of the Federal Government 
to use all practicable means, 
consistent with other essential 
considerations of national pol­
icy, to improve and coordinate 
Federal plans, functions, pro­
grams, and - resources to the end 
that the Nation may—

*  *  *

(5) achieve a balance between 
population and resource use 
which will permit high standards 
of living an a wide sharing of 
life's amenities; . . .

2. Section 102 of the National Environ­
mental Policy Act of 1969, 42 U.S.C.
§ 4332, provides in pertinent part:

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[Section 102(2)(C)]
The Congress authorizes and di­
rects that, to the fullest ex­
tent possible: (1) the poli­
cies, regulations, and public 
laws of the United States shall 
be interpreted and administered 
in accordance with the policies 
set forth in this chapter [42 
U.S.C. §§ 4321 seq. 1 . and (2) 
all agencies of the Federal Gov­ernment shall—
(C) include in every recommen­
dation or report on proposals 
for legislation and other major 
Federal actions significantly 
affecting the quality of the 
human environment, a detailed 
statement by the responsible official on—
(i) the environmental impact 

of the proposed action,
(ii) any adverse environmental 

effects which cannot be 
avoided should the propos­
al be implemented,

(iii) alternatives to the pro­
posed action,

(iv) the relationship between 
local short-term uses of 
man’s environment and the 
maintenance and enhance­
ment of long-term produc­tivity, and

(v) any irreversible and irre­
trievable commitments of 
resources which would be 
involved in the proposed 
action should it be imple­mented .

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Prior to making any detailed 
statement, the responsible Fed­
eral official shall consult with 
and obtain the comments of any 
Federal agency which has juris­
diction by law or special exper­
tise with respect to any envi­
ronmental impact involved. Cop­
ies of such statement and the 
comments and views of the appro­
priate Federal, State, and local 
agencies, which are authorized 
to develop and enforce environ­
mental standards, shall be made 
available to the President, the 
Council on Environmental Quality 
and to the public as provided by 
section 552 of title 5, United 
States Code [5 U.S.C.S. § 552], 
and shall accompany the proposal 
through the existing agency re­
view processes;

3. Section 10 of the Rivers and Harbors
Appropriation Act of 1899, 33 U.S.C.
§ 403, provides in pertinent part:

The creation of any obstruction 
not affirmatively authorized by 
Congress, to the navigable 
capacity of any of the waters of 
the United States is hereby pro­
hibited; and it shall not be 
lawful to build or commence the 
building of any . . . structures 
in any . . . navigable river, or 
other water of the United 
States, outside established har­
bor lines, or where no harbor

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lines have been established, 
except on plans recommended by 
the Chief of Engineers and 
authorized by the Secretary of 
the Army; . . .

4. Section 404 of the Clean Water Act, 
33 U.S.C. § 1344, provides in perti­
nent part:

(a) Discharge into navigable
waters___at specified disposalsites. The Secretary may issue 
permits, after notice and oppor­
tunity for public hearings for 
the discharge of dredged or fill 
material into the navigable 
waters at specified disposal sites. Not later than the fif­
teenth day after the date an 
applicant submits all the infor­
mation required to complete an 
application for a permit under

.this subsection, the Secretary 
shall publish the notice re­
quired by this subsection.
(b) Specification for disposal 
sites. Subject to subsection
(c) of this section, each such 
disposal site shall be specified 
for each such permit by the Sec­
retary (1) through the applica­
tion of guidelines developed by 
the Administrator, in conjunc­
tion with the Secretary, which 
guidelines shall be based upon 
criteria comparable to the cri­
teria applicable to the terri­
torial seas, the contiguous

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zone, and the ocean under sec­
tion 1343(c) of this title, and 
(2) in any case where such 
guidelines under clause (1) 
alone would prohibit the speci­
fication of a site, through the 
application additionally of the 
economic impact of the site on 
navigation and anchorage.

*  *  *

(d) The term "Secretary" as 
used in this section means the 
Secretary of the Army, acting 
through the Chief of Engineers.

5. The Administrative Procedure Act, 5 
U.S.C. § 706(2)(A) provides in perti­
nent part:
The reviewing court shall —

*  *  *

(2) hold unlawful and set aside 
agency action, findings, and 
conclusions found to be -
(A) arbitrary, capricious, an 
abuse of discretion, or other­
wise not in accordance with law;

* * *
(D) without observance of proce­
dure required by law; . . .

6. 28 U.S.C. § 1291 provides:
The courts of appeals . . .
shall have jurisdiction of ap­
peals from all final decisions 
of the district courts . . .

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7. The "Public Interest Review" regula­
tion of the Army Corps of Engineers, 
33 C.F.R. § 320.4 (a) and (q), pro­
vides :

(a) Public Interest Review. (1) The decision whether to issue a 
permit will be based on an evaluation 
of the probable impacts, including 
cumulative impacts, of the proposed 
activity and its intended use on the 
public interest. Evaluation of the 
probable impact which the proposed 
activity may have on the public in­
terest requires a careful weighing of 
all those factors which become rele­
vant in each particular case. The 
benefits which reasonably may be ex­
pected to accrue from the proposal 
must be balanced against its reason­
ably foreseeable detriments. The 
decision whether to authorize a pro­
posal, and if so, the conditions 
under which it will be allowed to 
occur, are therefore determined by 
the outcome of this general balancing 
process. That decision should re­
flect the national concern for both 
protection and utilization of impor­
tant resources. All factors which 
may be relevant to the proposal must 
be considered including the cumula­
tive effects thereof: among those
are conservation, economics, aesthe­
tics, general environmental concerns, 
wetlands, historic properties, fish 
and wildlife values, flood hazards,

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floodplain values, land use, naviga­
tion, shore erosion and accretion, 
recreation, water supply and conser­
vation, water quality, energy needs, 
safety, food and fiber production, 
mineral needs, considerations of 
property ownership and, in general, 
the needs and welfare of the people. 
For activities involving 404 dis­
charges, a permit will be denied if 
the discharge that would be author­
ized by such permit would not comply 
with the Environmental Protection 
Agency's 404(b)(1) guidelines. Sub­
ject to the preceding sentence and 
any other applicable guidelines and 
criteria (See §§ 320.2 and 320.3), a 
permit will be granted unless the 
district engineer determines that it 
would be contrary to the public in­
terest .

(q) Economics. When private 
enterprise makes application for 
a permit, it will generally be 
assumed that appropriate econom­
ic evaluations have been com­
pleted, the proposal is econom­
ically viable, and is needed in 
the marketplace. However, the 
district engineer in appropriate 
cases, may make an independent 
review of the need for the pro­
ject from the perspective of the 
overall public interest. The 
economic benefits of many pro­
jects are important to the local 
community and contribute to 
needed improvements in the local 
economic base, affecting such 
factors as employment, tax

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revenues, community cohesion, 
community services, and property 
values. Many projects also con­
tribute to the National Economic 
Development (NED)(i.e., the 
increase in the net value of the 
national output of goods and 
services).

8. The regulations of the Council on 
Environmental Quality, 40 C.F.R.
§ 1502.16, 40 C.F.R. § 1508.7, 40
C.F.R. § 1508.8(a)(b), and 40 C.F.R.
§ 1508.14 provide:

§ 1502.16 Environmental conse­
quences .

This section forms the 
scientific and analytic basis 
for the comparisons under 
§ 1502.14. It shall .consolidate 
the discussions of those ele­
ments required by sections 
102(2)(C)(i), (ii), (iv), and
(v) of NEPA which are within the 
scope of the statement and as 
much of section 102(2)(C)(iii) 
as is necessary to support the 
comparisons. The discussion 
will include the environmental 
impacts of the alternatives in­
cluding the proposed action, any 
adverse environmental effects 
which cannot be avoided should 
the proposal be implemented . . .

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(1502.16 (cont.))
It shall include discus­

sions of:
(a) Direct effects and

their significance (§ 1508.8).
(b) Indirect effects and

their significance (§ 1508.8).
(c) Possible conflicts

between the proposed action and 
the objectives of Federal,
regional, State, and local . . . 
land use plans, policies and
controls for the area
concerned. (See § 1506.2(d).)

(d) The environmental ef­
fects of alternatives including
the proposed action. . . .* * *

(g) Urban quality . . .
and the design of the built en­
vironment, including the reuse 
and conservation potential of 
various alternatives and mitiga­
tion measures.
§ 1508.7 Cumulative impact.

"Cumulative impact" is the 
impact on the environment which 
results from the incremental 
impact of the action when added 
to other past, present, and rea­
sonably foreseeable future ac­
tions regardless of what agency 
(Federal or non-Federal) or per­
son undertakes such other ac­
tions. Cumulative impacts can

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result from individually minor 
but collectively significant actions taking place over a 
period of time.
§ 1508.8 Effects.

"Effects" include:
(a) Direct effects, which 

are caused by the action and 
occur at the same time and place.

(b) Indirect effects,
which are caused by the action 
and are later in time or farther 
removed in distance, but are 
still reasonably foreseeable.
Indirect effects may include 
growth inducing effects and 
other effects related to induced 
changes in the pattern of land 
use, population density or
growth rate, and related effects 
on air and water and other 
natural systems, including eco­
systems .
Effects and impacts as used in 
these regulations are synony­
mous. Effects include ecologi­
cal (such as the effects on 
natural resources and on the 
components, structures, and 
functioning of affected ecosys­
tems), aesthetic, historic, cul­
tural, economic, social, or
health, whether direct, indi­
rect, or cumulative. Effects 
may also include those resulting 
from actions which may have both

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beneficial and detrimental ef­
fects, even if on balance the 
agency believes that the effect will be beneficial.
§ 1508.14 Human environment.

"Human environment" shall 
be interpreted comprehensively 
to include the natural and phys­
ical environment and the rela­
tionship of people with that 
environment. (See the defini­
tion of "effects" (§ 1508.8).) 
This means that economic or so­
cial effects are not intended by 
themselves to require prepara­
tion of an environmental impact 
statement. When an environmen­
tal impact statement is prepared 
and economic or social and nat­
ural or physical environmental 
effects are interrelated, then 
the environmental impact state­
ment will discuss all of these 
effects on the human environment.

9. Federal Rule of Civil Procedure 24(a) 
provides:

(a) Intervention of Right. 
Upon timely application anyone 
shall be permitted to intervene 
in an action: (1) when a stat­
ute of the United States confers 
an unconditional right to inter­
vene; or (2) when the applicant 
claims an interest relating to 
the property or transaction

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which is the subject of the ac­
tion and he is so situated that 
the disposition of the action 
may as a practical matter impair 
or impede his ability to protect 
that interest, unless the appli­
cant's interest is adequately 
represented by existing parties.

* * *

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CERTIFICATE OF SERVICE

I hereby certify that on July 5, 
1988 I caused copies of the attached 
Petition for a Writ of Certiorari to the 
United States Court of Appeals for the 
First Circuit and the Appendix thereto to 
be served via first class mail, postage 
prepaid, or by hand delivery ("*"), upon:

^Honorable Charles Fried 
Solicitor General of the United States 
United States Department of Justice 
Room 5143
10th and Constitution Ave., N.W. 
Washington, D.C. 20530
Daniel Riesel, Esq.
Sive, Paget and Riesel, P.C.
10th Floor
460 Park Avenue
New York, New York 10022
Alice Richmond, Esq.
Hemenway and Barnes
60 State Street
Boston, Massachusetts 02109

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Peter Shelly, Esq.Conservation Law Foundation 
of New England, Inc.

4 Joy Street
Boston, Massachusetts 02116
^Honorable Edwin Meese 
Attorney General of the United States 
United States Department of Justice 
10th and Constitution Ave., N.W. 
Washington, D.C. 20530
James Tripp, Esq.
Environmental Defense Fund
257 Park Avenue
New York, New York 10010
Katherine H. Robinson, Esq. 
Connecticut Fund for the Environment 
32 Grand Street 
Hartford, Connecticut 06106
Peter Steenland, Esq.
Appellate Section
Land and Natural Resources Division 
Department of Justice 
P. O. Box 23795 (L’Enfant Station) 
Washington, D.C. 20026
Edward S. Lawson
Westin, Patrick, Willard and Redding
84 State Street
Boston, Massachusetts 02109
Roberta Friedman, Esq.
383 Orange Street
New Haven, Connecticut 06511

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July-

Frank Cochran, Esq. 
Cochran, Cooper, ei a_l 
P. 0. Box 1898 
New Haven, Connecticut

5, 1988
Neil T.

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06508

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