issued the permit and refused to withdraw it despite the recommendations of the U.S. Fish and Wildlife Service and the Pennsylvania Agencies is a violation of the Fish and Wildlife Coordination Act according to the plaintiffs. Plaintiffs do not consider this issue proper for summary judgment since there is a dispute as to whether the U.S. Fish and Wildlife Service supported the wildlife management plan developed by a private consulting firm. This dispute is not critical to the question of whether the defendants consulted with the Secretary of the U.S. Fish and Wildlife Service, with the head of the appropriate state agencies, made their reports an integral part of the Corps report, and gave their reports and recommendations full consideration as required by the Act.
The EIS indicates that the statutory and regulatory procedures were followed. There is no requirement that the Corps follow the advice of the State or Federal agencies or adopt their positions. Plaintiffs are arguing that the final decision was wrong because a Pennsylvania agency recommended against it. Review of the merits of the agency's proposed action is not required by NEPA. One circuit court has stated that "(t)he project, when finished, may be a complete blunder-NEPA insists that it be a knowledgeable blunder." Matsumato v. Brinegar, supra.
The administrative record and the final EIS support defendants positions that they did not violate either the Fish and Wildlife Coordination Act or the Migratory Bird Act. See, Administrative Record, Vols. 1, 2 and 3; EIS, Vol. II, pp. 2-991 through 2-1071; EIS, Vol. III, pp. 4-838, 5-61, and 6-120 through 6-129. Representatives of federal and state fish and wildlife organizations were consulted early in the review process and contacts were maintained throughout the permitting process. The end result of all these consultations was the development of the fish and wildlife management plan for the lakefront site by the consulting firm of Fahringer, McCarty, Grey, Inc. Administrative Record, Vol. 113. The U.S. Fish and Wildlife Service and the Ohio Department of Natural Resources wholly supported the Wildlife Management Plan developed by Fahringer, McCarty & Grey, Inc. All fish and wildlife resource agencies except the Pennsylvania Fish and Game Commissions agreed that the effect of culverting Turkey Creek culvert upon fish and wildlife would be minimal.
The fact that the Pennsylvania Game and Fish Commission opposed issuance of the permit does not mean that the Corps did not give "full consideration" or "great weight" to the views of that agency. It only shows that they gave greater weight to the views of the majority of the agencies and experts which studied the effects the plant would have on wildlife.
Plaintiffs have persistently and diligently attacked the final environmental impact statement from every conceivable angle. Defendants have steadfastly stood behind their decision to issue the permit and support their motion for summary judgment with the four corners of the impact statement and the administrative record. In an effort to comply with the applicable standards of review, the court has conducted a thorough and in-depth review of the record to determine whether the agency action is in accord with NEPA and the APA. While we have been impressed with the conscientious efforts of plaintiffs to ferret out every possible procedural deficiency during this two-year process, we have been even more impressed with the good faith efforts of the Army Corps of Engineers.
In order to successfully oppose the defendants' motion for summary judgment, plaintiffs must "set forth specific facts showing that there is a genuine issue for trial." Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975). Despite protestations from the plaintiffs, our studies indicate that the instant case is not one which presents conflicting factual instances of a material nature, nor is it a case where credibility is an important factor. In addition, our review focused on the administrative action as documented prior to the start of this litigation since de novo review is not proper in a NEPA case. Therefore, this is the type of case in which the summary judgment procedure has a special utility. Upper West Fork River Water Shed v. Army Corps of Engineers, 414 F. Supp. 908, (N.D.W.Va.1976), aff'd 556 F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010, 98 S. Ct. 720, 54 L. Ed. 2d 752. Keeping in mind that any doubt must be resolved against the moving party, plaintiffs' materials and general assertions when applied with the gravamen of the complaint, do not show sufficient facts to establish that there are genuine issues for trial. Consequently, a trial in this case would be a useless formality since there has been no showing that any different or additional evidence would be adduced. See Lundeen v. Cordner, 354 F.2d 401 (8th Cir. 1966). Sims v. Mack Truck Corp., 488 F. Supp. 592 (E.D.Pa.1980). Therefore, for reasons previously given, defendants' motion for summary judgment will be granted and plaintiffs' motions for partial summary judgment will be denied.
An appropriate order will be entered.