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3rd Circuit Refuses to Overturn Delaware Dredging Ruling

By Brian Harris

By Zack Needles
Of the Legal Staff

The U.S. 3rd Circuit Court of Appeals has declined to overturn Judge Sue L. Robinson's late January ruling that opened the doors for the first phase of a project that would deepen the Delaware River shipping channel.

In a Feb. 8 order, a three-judge panel led by Chief Judge Anthony J. Scirica denied an expedited motion for injunction and stay pending appeal filed by intervenors the Delaware Riverkeeper Network, the Delaware Riverkeeper, the Delaware Nature Society, the National Wildlife Federation, the New Jersey Environmental Federation and Clean Water Action.

Scirica, who was joined by Judges Julio M. Fuentes and Thomas M. Hardiman, said the appellants failed to meet the standards for either an injunction or a stay. On Jan. 29, Robinson ruled that dredging could begin on "Reach C" of the river, which runs south from Wilmington, Del., to just south of the Chesapeake and Delaware Canal.

Robinson said in the opinion that Delaware's Department of Natural Resources and Environmental Control and the other plaintiffs, which also included the state of New Jersey as an intervenor, had failed to adequately demonstrate their potential to succeed on the merits, as well as to show that the deepening project would cause irreparable harm.

Robinson did preliminarily enjoin the defendant, the U.S. Army Corps of Engineers, which controls the deepening project, from dredging other sections of the river "until further order of the court," noting that subsequent phases of the project are not set to begin until December of this year, by which time the DNREC said it can likely complete a review.

At oral arguments in December, Delaware Deputy Attorney General Jennifer Oliva said the corps has been uncooperative in obtaining the state permits it needs to begin work on the dredging project, which seeks to deepen and widen a 102.5-mile stretch of river that runs through Delaware, New Jersey and Pennsylvania.In 2003, a state-hired hearing officer recommended the corps' permit application be denied, according to Oliva, but the state never officially acted on this recommendation.

Oliva said the corps never made any subsequent effort to satisfy the permit requirements and then took the state by surprise last October when it announced it would move forward with the project by early January 2010 without permits.

The corps' attorney, Kent Hanson of the U.S. Justice Department, said during the arguments that there was "no explanation for the state's five-and-a-half years of inactivity."

Oliva also said the project would churn up long-dormant toxins that could potentially harm aquatic life and, once the debris is stored, seep into groundwater if left unchecked.

But Hanson said Delaware lacked sufficient evidence to back up this claim, which he denounced as "a kind of fear-mongering."

Delaware Riverkeeper Network staff attorney Elizabeth Brown said Wednesday that her clients were "disappointed" in the appeals court's ruling on the motion to stay, but "we certainly recognize the extraordinary relief we were seeking."

"We will press forward with the underlying litigation in Delaware and New Jersey," Brown said.

The U.S. Justice Department could not immediately be reached for comment.

Full post as published by The Legal Intelligencer Blog on February 24, 2010 (boomark / email).