.L

United States Attorneys

Bulletin

Published by Executive Office for United States Attorneys

Department of Justice Washington D.C

VOLUME 24 MY 28 1976 NUMBER 11

UNITED STATES DEPARTMENT OF JUSTICE

Vol 24 May 28 1976 No 11

TABLE OF CONTENTS

Page

NOTICE 501

POINTS TO REMEMBERTHE INTERSTATE AGREEMENT ON

DETAINERS ACT 503

ACT FOR THE PROTECTION OFFOREIGN OFFICIALS ANDOFFICIAL GUESTS OF THEUNITED STATES 504

CONTROLLED SUBSTANCES ACTSIMPLE POSSESSION 505

ANTITRUST DIVISIONSHERMAN ACT

Court Holds CorporateDefendants Have Right ToRequest Discovery U.S Allied Maintenance

Corporation 507

CIVIL DIVISIONFREEDOM OF INFORMATION ACT

Supreme Court Holds ThatPersonnel Files Are NotExempt Unless TheirDisclosure Would Constitute

Clearly UnwarrantedInvasion Of PersonalPrivacy Department of the Air

Force Rose 510

CRIMINAL DIVISIONENTRAPMENT DEFENSE

Government Informants AllegedSupplying Of Illegal DrugLater Sold By Defendant DoesNot Result In Denial Of DueProcess Defendants RemedyWith Respect To Acts OfGovernment Agents Lies SolelyIn Entrapment Defense Hampton a/k/a Byers

U.S 512

Vol 24 May 28 1976 No 11

LAND AND NATURAL RESOURCES DIVISIONENVIRONMENT

NEPA Endangered SpeciesAct Sierra Club Robert

Froehike 514

INDIANSWithdrawal Of Federal

Approval Of TribalConstitution Nelson Potts Louis

Bruce Commissioner ofIndian Affairs 515

Alaska Native AllotmentsDue Process Sarah Pence Thomas

Kieppe 516

CIVIL PROCEDURE

Summary Judgment In Foreclosure ActionSustained U.S Irwin Maniloff 516

Ii

ENVIRONMENTChallenge To Construction

Permit For NuclearPower Plant Rejected Porter County Chapter of

the Izaak Walton LeagueAmerica AEC 517

NEPA Denial Of TemporaryInjunctive Relief Pending

Preparation Of EIS Conservation Council ofNorth CarolinaCostanzo 517

PUBLIC LANDSHighway Beautification Act

Right To Retain Billboards On Public LandsRight To Compensation ForBillboards Removed FromPublic Lands Ryan Outdoor Advertising

Inc U.S 518

OFFICE OF LEGISLATIVE AFFAIRS 519

II

Vol 24 May 28 1976 No 11

Page

APPENDIX FEDERAL RULES 0F CRIMINAL PROCEDURERULE 6c The Grand Jury

Foreman and Deputy Foreman U.S Henry McCombWinchester Jr 525

RULE 6e The Grand JurySecrecy of Proceedings andDisclosure U.S Henry McComb

Winchester Jr 527

RULE 6f The Grand JuryFinding and Return ofIndictment U.S Henry McComb

Winchester Jr 529

RULE 7c The Indictment andthe Information Natureand Contents u.s Henry McComb

Winchester Jr 531U.S Jose DemetrioAntega-Limones and MikeLozano Cantu 533

RULE 7c The Indictmentand the InformationNature and ContentsHarmless Error U.S Clyde Eugene

Garner 535

RULE 7f The Indictmentand the Information Billof Particulars U.S Dominique Orsini 537

RULE 8a Joinder ofOffenses and of DefendantsJoinder of Offenses U.S Henry McComb

Winchester Jr 539

RULE 11 Pleas U.S Louis EugeneCunningham and JohnHecht 541

RULE 12.1 Notice of Alibi U.S Dominique Orsini 543

Vol 24 May 28 1976 No 11

Page

RULE 14 Relief fromPrejudicial Joinder U.S Henry McComb

Winchester Jr 545

RULE 16 Discovery andInspection U.S Henry McComb

Winchester Jr 547

RULE 16 Discovery and

Inspection Other booksPapers Documents TangibleObjects or Places U.S Frank DeMarco

Jr

549

RULE 16g Discovery andInspection InformationNot Subject toDisclosure U.S Frank DeMarco

Jr 551

RULE 18 Place of Prosecutionand Trial U.S Jose Demetrio

Antega-Limones and Mike

Lozano Cantu 553

RULE 24c Trial JurorsAlternate Jurors U.S Joseph Corre

Lamb Jr 555

RULE 32 Sentence and

Judgment Judgment U.S Frank DeMarcoJr 557

RULE 32d Sentence andJudgment Withdrawal ofPlea of Guilty U.S Louis Eugene

Cunningham and JohnHecht 559

RULE 33 New Trial U.S Henry Clayton 561U.S Clyde EugeneGarner 561

RULE 41 Search and Seizure U.S Eugene Boyd 563

Iv

Vol 24 May 28 1976 No 11

Page

RULE 50b Calendars Planfor Prompt DispositionPlan for AchievingDisposition of CriminalCases u.s Clyde Eugene

Garner 565______

501

Vol 24 May 28 1976 No 11

NOTICE

FORMAT OF U.S ATTORNEYS BULLETIN

memorandum of 12 May 1976 from Mr William GrayDirector Executive Office for United States Attorneys to allAssistant Attorneys General read as follows

As part of our efforts to improve communicationsbetween the Department here in Washington andthe United States Attorneys Offices and among theUnited States Attorneys offices themselves thisoffice plans to make specific changes in the formatof its United States Attorneys Bulletin askfor your cooperation in insuring that all copysubmitted to us for publication after April 301976 be drafted along the lines described belowWe will continue to edit all copy submitted to us forpublication to insure standard format is observed

Casenotes When preparing please include onlycase name court and date Department of JusticeNumber citation to Law Week or other commercialservice if available brief description of theholding the importance of the case to the work ofthe United States Attorneys and the name andphone number of the attorneys who handled the caseWe wish to limit the length of casenotes to onehalf of page each to eliminate duplication withthe commercial services and to expand the numberof cases reported in the United States AttorneysBulletin

Appendix on Federal Rules of Criminal ProcedureThe Criminal Division has agreed that these appendiceswill in the future be prepared from slipopinions if possible rather than advance sheetsso as to reduce the time between the date ofdecision and its publication in the Bulletin fromas much as three months to four weeks Citationsfor these decisions will then be available by wayof telephonic request to .the office of Ms PatriciaGormley Legislation and Special Projects SectionCriminal Division

Points to Remember In the future we requestthat the Points to Remember Section should not beused to enunciate new or freshly revised policy orprescribed procedure The revised United StatesAttorneys Manual will be the more appropriate

502

Vol 24 May 28 1976 No 11

vehicle for such communication and theBulletins Points to Remember Section should beused only to reiterate and highlight policies orprocedures enunciated elsewhere

This sections most important functionshould be toote the innovative handling of currentlitigation problems by the United States Attorneysand Legal Divisions and to suggest whereappropriate particular approach to such problemsAnother use for this section would be to informUnited States Attorneys about and solicit theirviews on anticipated developments in the law andtheir implications for the work of the Departmentof Justice

Lastly this section might be used to publishmiscellaneous items In recent issues theseincluded items on Accurate Reporting RecommendedPrivacy Act Forms and the Use of the Appendix onthe Federal Rules of Criminal Procedure

United States Attorneys and their Assistants are encouragedto submit items Items for casenotes should ordinarily berouted to the appropriate Divisions names of contacts in theDivisions are provided below Items for Points to Remembermay be routed to the appropriate Division or the ExecutiveOffice

Any inquiries should be addressed to Mr James ThunderU.S Attorneys Bulletin Staff Executive Office for UnitedStates Attorneys FTS 739-4104

Executive Office

503

Vol 24 May 28 1976 No 11

POINTS TO REMEMBER

THE INTERSTATE AGREEMENT ON DETAINERS ACT

teletype of 14 May 1976 sent to all United States

attorneys read as follows

It has come to the attention of this office

that the Governments failure to comply with the

provisions of the Interstate Agreement On Detainers

Act Pub 91538 18 U.S.C App P. 1671975 Supp hereinafter the agreement has in

.4 recent weeks been the grounds for at least twodistrict courts dismissals of indictments withprejudice The agreement is designed tofacilitate securing defendants incarcerated in

other jurisdictions for purposes of prosecutionbut places strict requirements on the jurisdictionrequesting the prisoner The requestingjurisdiction must inter alia not return theprisoner to the original place of imprisonmentprior to trial or suffer dismissal of the indictment

with prejudice Art IVE The requirementsof the agreement have been held by U.S DistrictCourts for the E.D Pa and E.D.N.Y to apply toany transfer of convicted prisoners from state

custody to federal custody for purposes of federal

prosecution even if procedurally accomplished bythe writ of habeas corpus and prosequendum28 U.S.C 2241c Since the SolicitorGenerals views on appealing these cases and thelikely outcome of such appeals is not yet knownwe urge you to acquaint yourselves with the

agreement and make the necessary efforts to complywith its requirements whenever possible Suchcompliance should minimize disruption of your trial

calendars by avoiding further adverse rulings

Executive Office

504

VOL 24May 28 1976 No 11

ACT FOR THE PROTECTION OF FOREIGN OFFICIALSOFFICIAL GUESTS OF THE UNITED STATES

The policy requiring departmental authorization forprosecutions under the Act for the Protection of ForeignOfficials and Official Guests of the United States 18 U.S.C

112 970 1116 1117 1201 is rescinded Pending revisionof the United States Attorneys Manual you should note thischange at page 301 of the analysis of the Act publishedas Appendix II to the United States Attorneys Bulletin Volume21 Issue No March 30 1973

Decisions to initiate prosecution under the Act shouldcontinue to take into account the clear intent of Congress thatthe Act supplement not supplant applicable state and locallaws Thus availability of effective non-Federal dispositionfor violation of the Act remains an appropriate basis fordeclination in the absence of other overriding Federal concerns

If there are any questions concerning the Act for theProtection of Foreign Officials and Official Guests please contact the General Crimes Section 202-7394512

Criminal Division

505

VOL 24 May 28 1976 No 11

CONTROLLED SUBSTANCES ACT SIMPLE POSSESSION

first time offender convicted under 21 U.S.C 844aof simple possession of controlled substance is eligible onlyonce for conditional discharge and if not over 21 years of ageexpungement of his records see 21 U.S.C 844b To ensurethat simple possession offenders are not given the benefit of844s discharge and expungement provisions more than oncenonpublic record of every offenders 844 discharge or expungement is maintained by the Department of Justice The Departmentcustodian of these records is the Directives and Records Management Unit Administrative Services Section Operations SupportStaff Office of Management and Finance When United StatesAttorney has reason to believe that 844 offender does notqualify for discharge or expungement because of previous discharge or expungement under 21 U.S.C 844b he shouldcommunicate with and forward pertinent information about theoffender including his fingerprints to the Directives andRecords Management Unit That Unit will check the informationand the fingerprints with the material contained in its nonpublicrecord files The Unit will then advise the United StatesAttorney as to what the check reveals Regarding 844 dischargeand expungement generally please see DOJ Order 2710

Criminal Division

507

ANTITRUST DIVISIONAssistant Attorney General Thomas Kauper

DISTRICT COURT

SHERMAN ACT

COURT HOLDS CORPORATE DEFENDANTS HAVE RIGHT TO REQUESTDISCOVERY

United States Allied Maintenance Corporationet al 76 CR 48 April 20 1976 DJ 6033720

On April 20 1976 District Judge Inzer Wyatt ruledon discovery motions by defendants The most significantpart of his ruling was that corporate defendants have

standing under Rule 16a to request to discoverstatements made by its officers or employees which arein the possession of the Government The corporatedefendants had moved for discovery of any statements oftheir employees which were in the possession of theGovernment We argued that the corporate defendants werenot entitled to discovery of such statements under Rulel6a1A It is our position that the very languageof the newly amended rule allows discovery of statementsonly to individual defendants who made such statementsWe further argued that discovery by corporate defendantunder Rule 16 was limited to the grand jurytranscripts specified in the Rule The Court found thisposition logical but granted the discovery anyway TheCourt states

The government argues that since thereis such provision for grand jury testimonyit must have been intended that the earliersection of the Rule apply only to individualdefendants The position is entirely logicalbased on the wording of the Rule

am not inclined to adopt this positionhowever because it does not seem fair orreasonable

508

Liberality of disclosure is now preferredThere seems to be no good reason why corporatedefendant should not have discovery of state-ments Such is my ruling

This ruling by Judge Wyatt dealt with three disputedissues of discovery raised by motion for broad discoveryby the defendants The second disputed issue concernedthe defendants request that the government disclosewhether or not electronic surveillance had been conductedduring the investigation of this case We declined todisclose whether or not electronic surveillance had beenconducted The Court sustained our position noting thatunder Rule 12d the Government would be required togive notice if it intended to use such evidence at trialWe had stated that we did not intend to use such evidenceat trial The Court noted further that under Rule 16a

the Government would have to turn over statementsof defendants whether obtained by electronic surveillanceor not

The third disputed issue was raised by the defendantsrequest for the statements and grand jury testimony of anattorney who was counsel to trade association to whichall the corporate defendants belonged The associationitself has not been indicted Defendants claimed that anattorneyclient privilege was in issue because counselfor an association was counsel for each of the associations members To support this claim they filed anaffidavit stating that the deponent had heard this attorneysay that he considered himself an attorney for each ofthe associations members Defendants claimed that theyshould be allowed discovery of this attorneys statementsand grand jury testimony in order to determine whetherthey had grounds for motion to suppress We argued thatno defendant was actually claiming that this attorneyrepresented that particular defendant and therefore nodefendant could claim an attorney-client privilege Further we argued that the attorney-client privilege wasrule of evidence and is properly raised at trial when theevidence and the privilege can be examined with particularity The Court ruled that the moving affidavit wasinsufficient to warrant the relief sought and the Court

509

would not accept the proposition that an attorney for anassociation was thereby an attorney for each member ofthat association

Defendants moved for reargument on this last issue

citing Schwartz Broadcast Music Inc 16 F.R.D 31S.D N.Y 1954 and United States American RadiatorStandard Sanitary Corp 278 Supp 608 W.D Pa 1967for the proposition that an attorney for an associationis an attorney of its members On May 1976 Judge Wyattdenied the motion for reargurnent ruling that the casescited were not authority for the discovery motion of thedefendants

Staff Augustus Marchetti Bruce Repetto EdwardFriedman and Mark Summers

.Ji

510

CIVIL DIVISIONAssistant Attorney General Rex Lee

SUPREME COURT

FREEDOM OF INFORMATION ACT

SUPREME COURT HOLDS THAT PERSONNEL FILES ARE NOT EXEMPT

UNLESS THEIR DISCLOSURE WOULD CONSTITUTE CLEARLY UNWARRANTED

INVASION OF PERSONAL PRIVACY

Department of the .Air Force Rose Sup Ct No 74-489decided April 21 1976 D.J 14514787

In this Freedom of Information Act suit seeking disclosureof the Air Force Academys case summaries of honor and ethicscode hearings the district court held that the requested information was exempt from disclosure under Exemption of the Act

which protects matters related solely to the internal personnelrules and practices of an agency The Second Circuit reversedholding Exemption inapplicable However the court held thatsince the case summaries were personnel or similar filestheir release in unedited form would constitute clearly unwarranted invasion of personal privacy and thus make them

exempt in that form from disclosure by Exemption of the ActConcluding that the government had not established that disclosure of edited summaries would result in such an invasionthe court of appeals remanded the case with directions that thesummaries be submitted to the district court for in camera

inspection and ordered the government to cooperate in redactingthe records so as to delete personal references and all other

identifying information The court stated that it thought ithighly likely that the combined skills of court and agencywill yield edited documents sufficient for the purpose soughtand sufficient as well to safeguard affected persons in their

legitimate claims of privacy

The Supreme Court granted the governments petition forcertiorari and in 5-3 decision affirmed the court of appealsjudgment Rejecting the governments argument that personneland medical files are totally exempt from disclosure the Courtheld that those files like similar files are only exempt tothe extent that their disclosure would constitute clearly unwarranted invasion of privacy Indeed the Court held that thecase summaries were similar files and agreed with the courtof appeals that in camera inspection was necessary to determinewhether the documents could be redacted to protect the privacyinterests of the affected cadets

511

The Court also held Exemption inapplicable since that

exemption only protects information unlike the documents

here for which there is no genuine and significant publicinterest

Staff Paul Blankenstein and Donald Etra Civil Division

.1

512

CRIMINAL DIVISIONAssistant Attorney General Richard Thornburgh

SUPREME COURT

ENTRAPMENT DEFENSE

GOVERNMENT INFORMANTS ALLEGED SUPPLYING OF ILLEGAL DRUGLATER SOLD BY DEFENDANT DOES NOT RESULT IN DENIAL OF DUE PROCESSDEFENDANTS REMEDY WITH RESPECT TO ACTS OF GOVERNMENT AGENTS LIESSOLELY IN ENTRAPMENT DEFENSE

Hampton a/k/a Byers United States Sup Ct No 74-5822decided April 27 1976

The Courts opinion was rendered by plurality of threeJustices two others concurred in the judgment Common groundamong the five justices was that government agents supplyingillegal narcotics later sold by the defendant is not outrageousgovernment conduct does not violate Due Process and where thedefendant was predisposed to make the sale does not constituteentrapment

The defendant claimed at trial that government informanthad supplied him with heroin which he subsequently sold to twoundercover agents with whom the informant was cooperatingDefense counsel requested an instruction that would have requiredacquittal regardless of predisposition if the jury found thatthe drugs were in fact supplied by the government The courtrefused to give the instruction and the court of appeals affirmthe ensuing conviction over the defendants contention that theDue Process clause required the trial court to give the requestedcharge United States Hampton 507 F.2d 832 C.A 1974

The plurality of the Supreme Court concluded that when theaccused acts in concert with agents of the government the DueProcess clause does not bar his conviction regardless of theagents activity His remedy lies solely in the defense ofentrapmentt Slip op at which the plurality reaffirmsturns exclusively on predisposition United States Russell411 U.S 423 Sherman United States 356 U.S 369 SorrellsUnited States 287 U.S 435 Even if the police engage inillegal activity in concert with defendant beyond the scopeof their duties the remedy lies not in freeing the equallyculpable defendant but in prosecuting the police Slipop at

513

The concurring Justices agreed that the governmentssupplying contraband is not se denial of due processThey believed that this case was wholly controlled by Russellsupra in which the Court affirmed the drug manufacturingconviction of defendant to whom government agents suppliedrare and essential chemical used only for making speed TheJustices noted however that there might arise case inwhich due process principles or the Courts supervisory powershould be invoked to bar conviction on the basis of outrageousgovernment conduct even where predisposition was proved citingRochin California 342 U.S 165 cf United States Archer486 F.2d 670 676677 C.A 1973

Taken together the plurality and concurring opinionsimplicitly overrule United States BuØno 447 F.2d 903 C.A1971 United States West 511 F.2d 1083 C.A 1975 andtheir progeny

Staff Robert BorkSolicitor General

Richard ThornburghAssistant Attorney GeneralCriminal Division

Jerome FeitWilliam Otis

AttorneysCriminal Division

514

LAND AND NATURAL RESOURCES DIVISIONAssistant Attorney General Peter Taft

COURTS OF APPEALS

ENVIRONMENT

NEPA ENDANGERED SPECIES ACT

Sierra Club Robert Froehike C.ANo 75-1252 April 23 1976 D.J 90-1-4-574

The Sierra Club and certain individuals broughtsuit to enjoin construction of the Meramec Park LakeProject an Army Corps of Engineers project near St Louisalleging that several federal statutes had been violatedFollowing the district courts denial of any relief theSierra Club appealed and focused on alleged violation ofNEPA and the Endangered Species Act of 1973 16 U.S.Csec 1531et The Eighth Circuit affirmed the districtcourt decision in its entirety

With regard to the NEPA issues raised on appealthe Eighth Circuit held that the EIS adequately discussed possible alternatives to the construction of dam

the EIS adequately discussed possible impacts of theproject on the Indiana bat an endangered species theCorps had not acted improperly in discussing this projectalone in the EIS even though other similar projects hadbeen proposed in the area and the Corps had not actedarbitrarily or capriciously in proceeding with the projectafter conducting its NEPA review

In reaching the merits of the claims under theEndangered Species Act the Eighth Circuit upheld thedistrict courts determination that the Sierra Clubsapparent failure to satisfy the 60-day notice requirementof the citizen suit provision of the Act should be overlooked in this particular case As to the Sierra Clubsallegation that Section of the Endangered Species Acthad been violated relative to the Indiana bat the EighthCircuit citing National Wildlife Federation ColemanC.A No 75-3256 March 25 1976 ruled that subjectto judicial review the final responsibility for determiningwhether Section has been satisfied rests with the agencyinvolved and not with the Secretary of the Interior

515

Furthermore the court concluded that the Corps had not acted

arbitrarily or capriciously in determining that it had corn

plied with the requirements of consultation and necessaryaction under Section The court also concluded there wasno evidence to support claim that the Indiana bats had beentaken or harassed or harmed under Section of the Act

Staff Michael McCord Land and NaturalResources Division Assistant UnitedStates Attorney David Harlan E.DMo.

INDIANS

WITHDRAWAL OF FEDERAL APPROVAL OF TRIBAL

CONSTITUTION

Nelson Potts Louis Bruce Commissioner ofIndian Affairs et al C.A 10 No 75-1127 April 211976 D.J 90-2-0-733

This involved an action against certain officials

of the BIA and the Secretary of the Interior for allegedunlawful withdrawal of federal approval of the tribal

constitution and all of the governing body of the Prairie

Band of Pottawatomi Indians The district court ruled thatthe matter was basically an intra-tribal dispute over which

it had no jurisdiction and the suit was barred by the

doctrine of sovereign immunity

The court of appeals in affirming the judgmentbelow held that there was no substance to the chargethat the action of the federal officials was violation of

the constitutional rights of the plaintiff-appellant under

the Federal Constitution that an individual Indian has

no right to the continuance of particular tribal constitution and that the real issue for judicial review was

an intra-tribal matter which did not present justiciable

controversy

Staff Glen Goodsell Land and NaturalResources Division

516

INDIANS

ALASKA NATIVE ALLOTMENTS DUE PROCESS

Sarah Pence et al Thomas Kieppe etc etal C.A No 75-2144 January 16 1976 rehearing deniedMarch 23 1976 D.J 90-2-11-7002

Native Alaskans claiming to be eligible for allotments of public lands under the Alaska Native Allotment Act34 Stat 197 as amended 43 U.S.C secs 270-1 270-3repealed but with savings clause for applications pendingon December 18 1971 85 Stat 710 43 U.S.C sec 1617brought this action against the Secretary of the Interioralleging that the procedures by which the Secretary determineswhether to grant allotments deny the applicants due processThe court of appeals found that the district court hadjurisdiction under 25 U.S.C sec 345 and 28 U.S.C sec 1353It also held that allotment applicants have sufficient

property interest to warrant due process protection andthat the Secretarys procedures do not meet the requirementsof due process The court concluded that at minimumapplicants whose claims are to be rejected must be notifiedof the reasons allowed to submit written evidence and ifthey request be granted an opportunity for an oral hearing

Staff Charles Biblowit Land and NaturalResources Division

CIVIL PROCEDURE

SUMMARY JUDGMENT IN FORECLOSURE ACTION SUSTAINED

United States Irwin Maniloff C.ANo 75-1925 April 15 1976 D.J 90-1-1-2300

This was an action brought by the United States toforeclose purchase money mortgage The district courtfound that the mortgagors motion to amend their answerconstituted dilatory tactic and granted suimnary judgmentto the United States On appeal the Sixth Circuit heldthat the district court did not err in granting the Governments motion for sunmiary judgment and did not abuse itsdiscretion in denying the motion for leave to file anamended complaint

Staff Eva Datz Land and Natural ResourcesDivision Assistant United StatesAttorney Saul Green E.D Mich.

517

ENVIRONMENT

CHALLENGE TO CONSTRUCTION PERMIT FOR NUCLEAR POWERPLANT REJECTED

Porter County Chapter of the Izaak Walton League ofAmerica et al AEC et al C.A No 74-1751 April 131976 D.J 90-1-4-1049

The Seventh Circuit denied petition to review anorder of the Atomic Energy Commission granting permit toconstruct nuclear power plant next to the Indiana DunesNational Lakeshore Initially the court held that notwithstanding the objections by the Department of the InteriorAEC now Nuclear Regulatory Commission could properly condude that the environmental impact of the plant on theNational Lakeshore would not be substantial In additionthe court held the environmental impact statement to beadequate Specifically adequate consideration was found tohave been given to alternative sites in relation to veryserious type of accident which could theoretically occur

Staff NRC

ENVIRONMENT

NEPA DENIAL OF TEMPORARY INJUNCTIVE RELIEF PENDINGPREPARATION OF EIS

Conservation Council of North Carolina et alCostanzo et al C.A No 75-1906 December 16 1975D.J 90-1-4-957

The court held that the district court did not

abuse its discretion in denying temporary injunctive relief

pending the preparation of an EIS regarding marina constructed under Corps of Engineers permit and processingof an after-the-fact permit application for discharge of

dredge material

Staff Assistant United States AttorneyBruce Johnson E.D N.C.

.t

518

DISTRICT COURT

PUBLIC LANDS

HIGHWAY BEAUTIFICATION ACT RIGHT TO RETAIN BILLBOARDS ON PUBLIC LANDS RIGHT TO COMPENSATION FOR BILLBOARDSREMOVED FROM PUBLIC LANDS

.1Ryan Outdoor Advertising Inc United States

Nev Civil No LV 74-32 RDF D.J 90-1-4-883

Plaintiffs owners of outdoor advertising displayson public lands along federal-aid highways brought suitafter the Bureau of Land Management in accord with regulations 43 C.F.R Subpart 2921 refused to renew special usepermits for the billboards and forcibly removed two billboards Plaintiffs main contentions were that the HighwayBeautification Act 23 U.S.C sec 131 established standard for billboards along public highways and that theSecretary of the Interior could not completely ban suchbillboards Furthermore plaintiffs argued that they wereentitled to compensation under the Highway BeautificationAct for all billboards that were removed

In granting defendants motion for sunmiaryjudgment the court held that the Highway Beautification Actdid not diminish the plenary authority of the Secretary ofthe Interior over public lands as provided in 43 U.S.C sec1201 and that the regulation forbidding billboards waswithin the Secretarys discretion The court further heldthat the compensation language of the Highway BeautificationAct was not intended by Congress to award payment for thefailure to renew revocable one-year special use permits toerect billboards on the public lands

Staff Mark Wine Land and Natural ResourcesDivision