Appeal from an order of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, preliminarily enjoining defendants from removing a bridge linking Webster, New York, with Irondequoit, New York, until defendants receive appropriate assurances that the bridge will be replaced.
Kearse and Cardamone, Circuit Judges, and Wyatt, District Judge.*fn* Cardamone, Circuit Judge, dissenting.
This expedited appeal is taken by defendants United States Army Corps of Engineers, et al. (collectively the "Corps"), from an order of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, preliminarily enjoining the Corps from removing the bridge on New York Route 18 spanning the outlet channel from Irondequoit Bay (the "Bay") to Lake Ontario and linking the Town of Webster, New York, with Irondequoit, New York (the "Bridge"), without receiving assurances from "local interests" that a replacement bridge will be built on that site. The Corps contends that the district court abused its discretion in granting the injunction. We agree and reverse.
In 1958, Congress authorized the Corps to undertake an improvement project that included enlarging the existing channel connecting the Bay to Lake Ontario. River and Harbor Act of 1958, Pub. L. No. 85-500, § 101, 72 Stat. 297. The project was "authorized to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers, in accordance with the plans and subject to the conditions recommended by the Chief of Engineers, in the . . . report . . . designated [H. R. Doc. No. 332, 84th Cong., 2d Sess. (1946) ("H.R. Doc. 332")]." Id. at 297. H.R.Doc. 332, labeled a "Preliminary Examination and Survey of Irondequoit Bay," included a report of the Chief of Engineers, dated April 15, 1955, recommending, inter alia, that
the [project] be subject to the condition that responsible local agencies give assurances satisfactory to the Secretary of the Army that without cost to the United States they will --
(f) Replace and relocate the existing highway bridge with a new structure providing a vertical clearance of 40 feet above low-water datum in a location consistent with the recommended plan of improvement, in accordance with plans approved by the Chief of Engineers . . . .
H.R.Doc. 332, at 30. That document further stated that its recommendations were "all generally in accordance with the plans of the district engineer and with such modifications thereof as in the discretion of the Chief of Engineers may be advisable." Id. at 3, 4; see id. at 29.
In 1960, New York State proposed that, rather than replace the Bridge at its current site, it would construct a new high-level bridge over the Bay on New York Route 104, 1 1/2 miles south of the Bridge and "abandon present Route 18 along the shore of Lake Ontario as a State highway route." The Office of the Chief of Engineers approved this proposal, stating that "the proposed deviations from the project document plan are satisfactory . . . ." The new high-level bridge was completed in 1970.
In 1979, the Corps published a Draft Environmental Impact Statement ("DEIS") and a draft Phase I General Design Memorandum with respect to the project and circulated it for public review and comment. In 1980, after conducting a hearing under § 404 of the Clean Water Act, 33 U.S.C. § 1344 (1982), the Corps published its Final Environmental Impact Statement on the project ("FEIS") and a final Phase I General Design Memorandum ("GDM-1"). Both the FEIS and GDM-1 noted that the question of whether a new bridge should be constructed on the site of the Bridge was a "local decision" and that the Corps would proceed with the project regardless of what that local decision was. In 1982, the Corps issued a Phase II General Design Memorandum, addressing the final design of the project and reaffirming that interests would be free to construct a movable bridge or no bridge on the site. In 1983, a "Local Cooperation Agreement" was signed by the Corps and the State, which provided that the State would construct and maintain a replacement highway bridge across the expanded channel. In a covering letter from the Corps to the State, however, the Corps again asserted that the question of whether or not to construct a new bridge was entirely "a local one" and that the Corps "would accept either option."
In June 1984, the Corps awarded a contract for the enlargement of the channel and the construction of a small boat harbor at Irondequoit Bay, at a price of $3,260,000. The contractor began work in August 1984 and approximately one-third of the contract price has now been paid. Although the Bridge has not been removed, work under the contract is approximately 35% complete and is scheduled for completion by mid-September 1985.
In October 1984, plaintiffs, residents of Webster and owners of property near the Bridge, commenced the present action under, inter alia, the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1982), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq. (1982). Plaintiffs claimed, inter alia, (1) that the Corps's approval of the Route 104 bridge as a replacement for the Bridge was a modification of the original proposal in H.R. Doc. 332 that was arbitrary and capricious and in excess of the authority of the Chief of Engineers, and (2) that the Corps's environmental impact statements did not adequately explore the effects of removing the Bridge. Based on these claims, plaintiffs moved for a preliminary injunction prohibiting the Corps from removing the Bridge until assurances were received that a new bridge would be constructed over the channel.
The district court granted the injunction, agreeing with both of plaintiffs' claims. In a Decision and Order dated April 12, 1985 ...