author: McNAMARA, District Judge.

text:
    STATE OF LOUISIANA, et al. v. Colonel Robert C. LEE, et al.
    Civ. A. No. 83-6126.
    United States District Court, E.D. Louisiana.
    Sept. 14, 1984.

      Michael Osborne, New Orleans, La., Nicholas C. Yost, Washington, D.C., William J. Guste, Jr. Atty. Gen., Peter M. Arnow, Asst. Atty. Gen., Baton Rouge, La., for plaintiffs.
    Fred E. Salley, William F. Baity, Asst. U.S. Atty., New Orleans, La., James T.B. Tripp, New York City, Joe LeBlanc, James A. Burton, New Orleans, La., for defendants.
   OPINION AND ORDER

McNAMARA, District Judge.

This litigation arises out of the five-year extension of six shell dredging permits issued by the U.S. Army Corps of Engineers (Corps) pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and the Clean Water Act, 33 U.S.C. § 1344. The permits allow four shell dredging companies to dredge in two areas of southern Louisiana. The “Gulf Coast Area”, consists of the Gulf of Mexico, East and West Cote Blanche, Four League and Vermilion Bays. The “Lake Area”, consists of Lakes Pontchartrain and Maurepas.

The Plaintiffs, comprised of the State of Louisiana and several private environmentalist groups, allege that the Corps violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Three of the shell dredging companies subject to the permits — Louisiana Materials Co., Inc., Radcliff Materials, Inc. and Pontchartrain Materials Corp.— have intervened as defendants. The Complaint seeks: (1) a declaratory judgment that the Corps’ extension of the permits without first having prepared an environmental impact statement (EIS) constitutes a violation of the NEPA and (2) an injunction requiring the Defendants to rescind the permit extensions and to prohibit any shell dredging in the affected areas until an adequate EIS is prepared.

Presently before the court are the following Motions:

(1) The Motion of Federal Defendants to Limit Review to Evidence Contained within the Administrative Record;

(2) The Motion of Defendants Col. Robert C. Lee, Lt. Gen. Joseph K. Bratton, William R. Gianelli and John O. Marshal, Jr. (collectively referred to as the Federal Defendants) to Dismiss the State of Louisiana as a Plaintiff;

(3) The Motion of Defendants-In-Intervention, Radcliff Materials, Inc., Pontchartrain Materials Corp. and Louisiana Materials Co., Inc. to Dismiss the State of Louisiana as a Plaintiff and to Dismiss the Complaint for Failure to Join an Indispensable Party Under Federal Rule of Civil Procedure 19; and

(4) Cross Motions of all parties for Summary Judgment.

On August 29, 1984, the parties presented oral argument in support of the above Motions and were advised that the matter would be taken under advisement. Having considered the applicable law and arguments of counsel, the court enters its findings below.

I. MOTION TO LIMIT REVIEW TO ADMINISTRATIVE RECORD

In this Motion, the Federal Defendants seek to restrict the court’s review to the documents that were before the Corps when the decision not to prepare an EIS was made.

All parties agree that the administrative record is indeed the “focal point” for determining the reasonableness of the Corps’ action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court will consider evidence beyond the administrative record only when it is alleged that the administrative record is in some manner deficient or inadequate. Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir.1973).

In oral argument, all parties agreed that the administrative record is in all manners complete and adequate. Although conceding the adequacy of the present administrative record, the Plaintiffs suggest that this case is not procedurally in the posture to dispose of on the summary judgment motion brought by Defendants. According to the Plaintiffs, discovery is necessary to determine the weight given by the Corps to a 1977 report authored by the Gulf South Research Institute at the direction of the shell dredging companies. This report was a condition precedent to a time extension permit in 1974.

The court finds that further discovery is unnecessary because the administrative record does not indicate that the Corps merely “rubber-stamped” the GSRI report. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 643 (5th Cir.1983); Cf Sierra Club v. Sigler, 695 F.2d 957, 962 n. 3 (5th Cir.1983). To the contrary, the administrative record reflects that the Corps made an objective independent assessment of the studies it accumulated, of which the GSRI report was one of many. Thus, there is no procedural bar to a final adjudication. Accordingly, the Motion to Limit Review to the Administrative Record is GRANTED.

II. MOTION TO DISMISS THE STATE OF LOUISIANA AS PARTY PLAINTIFF

This Motion, brought by both the Federal Defendants and the Defendants-In-Intervention, is based on several alternative premises. Due to a misconception by the Defendants of the nature of this action, all of the premises lack merit.

Parens Patriae Standing of Louisiana

Both the Federal Defendants and the Defendants-In-Intervention assert that the State of Louisiana is without parens patriae standing. Generally, it is true that a state cannot sue the Federal Government in a parens patriae capacity. Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The rule of Mellon is limited, however, to the factual circumstance of a state challenging the constitutionality of a federal statute. When the state relies upon the validity of a federal statute to assert a violation of it by an administrative agency charged with its enforcement, a state has parens patriae standing. State of Alabama v. Tennessee Valley Authority, 467 F.Supp. 791, 794 (N.D.Ala.1979), affd. in pertinent part, 636 F.2d 1061 (5th Cir.) cert. denied 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981); Washington Utilities & Transportation Commission v. F.C.C., 513 F.2d 1142, 1153 & n. 16 (9th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

The exception to the rule of Mellon applies to this case; the State of Louisiana in fact relies on the NEPA in an effort to avail itself of the NEPA’s protection. Furthermore, it is apparent that the requisite quasi-sovereign interests of Louisiana are implicated in this litigation. Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44 L.Ed. 347 (1900); State of Alabama, 467 F.Supp. at 794. Accordingly, the court finds that the State of Louisiana has par-ens patriae standing.

Equitable Estoppel

In advancing this argument, the Defendants-In-Intervention contend that it is inconsistent for the State of Louisiana to appear as a plaintiff in this litigation when state agencies have already, pursuant to state law, let water-bottoms and issued coastal use permits to the shell dredging companies. The State of Louisiana counters with an argument that the compliance of the shell dredging companies with state law is irrelevant to an alleged violation of the NEPA.

The court finds the rejoinder persuasive. The fact that the dredging companies complied with state law by attaining the approval of various state agencies in acquiring leases and permits, and, assuming that the Attorney General did not comment upon the effects of dredging prior to the issuance of the “state” permits, is of no moment to the alleged violation of the procedural requirements of the NEPA, that is, the failure to file an EIS. The course of conduct presently pursued by the State of Louisiana — requiring the Corps to prepare an EIS — is not necessarily inconsistent with the approval of leases and permits pursuant to state law. Therefore the actions of the Department of Natural Resources (DNR) and the Wildlife and Fisheries Commission (WFC) cannot be construed to be an implied waiver by the State of Louisiana of any benefits it may have under the NEPA. As such, the initial element of equitable estoppel — a representation by the plaintiff — is lacking. See Zimeri v. Citizens & Southern International Bank of New Orleans, 664 F.2d 952, 955 (5th Cir.1981). Nor can it be said that the State of Louisiana has engaged in a prolonged course of conduct that would induce a “justifiable reliance” by the dredging companies that the State of Louisiana would not oppose the Corps’ actions in this case. Cf. Michigan Wisconsin Pipeline Co. v. Williams-McWilliams Co., 551 F.2d 945, 951 (5th Cir.1977).

Authority of State of Louisiana and At-' torney General to Bring Action

The Defendants-In-Intervention also contend that the State of Louisiana and its Attorney General lack the authority to bring this action because it conflicts with the true public policy of Louisiana.

The Attorney General of Louisiana is empowered with broad authority to prosecute actions in the interest of the state. La. Const. Art. 4, § 8 (1974); State v. Texas Co., 199 La. 846, 7 So.2d 161, 162 (1942); Moity v. Louisiana State Bar Association, 414 F.Supp. 180, 181 n. 3 (E.D.La.), aff'd., 537 F.2d 1141 (1976).

The shell dredging companies contend that the public policy of Louisiana is expressed in La.R.S. 56:441. This statute merely provides that the Wildlife and Fisheries Commission “may sell and grant to any person the right and privilege of taking shell deposits from any of the shell reefs” located in Louisiana and delineates the prerequisites to attaining such a right. Id.

On the other hand, Louisiana made positive expressions in regard to protecting the state’s natural resources and environment. In particular, Article 9, § 1 of Louisiana’s Constitution (1974) provides:

“The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.

In any event, the policy of permitting the shell dredging of state owned water-bottoms, whether or not it is in the public interest, is not being challenged. Again, it is the failure of the Corps to file an EIS to which the State of Louisiana objects. Thus, the court finds that neither the State of Louisiana, nor its Attorney General, are prohibited from bringing this action for want of authority.

III. MOTION TO DISMISS FOR FAILURE TO JOIN UNDER RULE 19

The argument made herein is closely related to one addressed immediately above. In this Motion, which is urged by the Defendants-In-Intervention, it is contended that the WFC and DNR must be joined as defendants because these agencies have an interest in the ability of the dredging companies to operate under the leases and coastal use permits issued by these agencies and a judgment adverse to the Defendants would prejudice this interest. The movers further contend that since the joinder of the WFC and DNR would result in the anomalous situation of the State of Louisiana, through the Attorney General, appearing as plaintiffs and the state agencies appearing as defendants, the appropriate action would be to dismiss the State of Louisiana as a party plaintiff. The court declines to do so.

Due to the nature of this action, the effect that a judgment may have on third parties is irrelevant. The rights embodied in the NEPA are “public”, rather than “private”. Natural Resources Defense Council v. Berklund, 458 F.Supp. 925, 933 (D.D.C.1978), affd. 609 F.2d 553 (D.C.Cir.1979). The constraints of Rule 19 apply only to adjudications of “private rights”. Id., citing National Licorice Co. v. NLRB, 309 U.S. 350, 366-67, 60 S.Ct. 569, 578, 84 L.Ed. 799 (1940); Kirkland v. New York State Dept. of Correctional Services, 520 F.2d 420, 424 (2d Cir.1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976). Thus, under the rule of National Licorice, the DWF and DNR are not considered necessary parties. See also State of Delaware v. Bender, 370 F.Supp. 1193, 1197 (D.Del.1974).

IV. MOTION FOR SUMMARY JUDGMENT

The procedural scheme contemplated by the NEPA and the Council on Environmental Quality NEPA Regulations (CEQ NEPA) is a relatively simple one. Paraphrasing § 4332(2)(C) of the NEPA, all agencies of the Federal Government are required to include in every recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment, a detailed statement on the environmental impact, or EIS, of the proposed action. Stated another way, an EIS is mandated only if the major Federal action significantly affects the quality of human environment. Save Our Ten Acres, 472 F.2d at 465.

The threshold determination of whether the effect of the proposed action is sufficiently “significant” is made by the preparation of an Environmental Assessment (EA). 40 CFR § 1508.9. If the agency determines upon examination of the EA that the proposed action would not have a significant effect on the human environment, a “finding of no significant impact” or FNSI, must be prepared. 40 CFR § 1508.13. Conversely, if the EA reveals that the quality of human environment would be significantly degraded by the proposed action, an EIS is required. Save Our Wetlands, 711 F.2d at 644. Factors to be considered in making the “significance” determination include both the context and the intensity of the proposed action. 40 CFR § 1508.27. See also Hanly v. Klein dienst, 471 F.2d 823, 830-31 (2nd Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973).

The Plaintiff’s Motion for Summary Judgment is premised on a contention that the undisputed facts — the EA(s) — do not support the FNSI, or the decision not to prepare an EIS. Stated simply, the Plaintiffs assert that each EA does in fact reveal significant environmental impact and, as a matter of law, the relief sought is proper. Conversely, the Defendants assert that given the undisputed facts, the Corps’ decision is a reasonable one.

The burden is upon the Plaintiffs to demonstrate the necessity for an EIS. Save Our Wetlands, 711 F.2d at 644. “The standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and made in good faith on a reviewable environmental record. If the decision is reasonable, the determinations must be upheld.” Id.; Vieux Carre Property Owners, Residents & Associates v. Pierce, 719 F.2d 1272, 1279 (5th Cir.1983).

EFFECTS OF DREDGING AS REFLECTED IN ENVIRONMENTAL ASSESSMENTS

Gulf Coast Area

The shells dredged in the Gulf Coast Area (GCA) are primarily oyster shells. Oyster shell deposits are found in reefs formed of millions of cubic yards of shell more or less cemented together. The shells are dredged by means of a barge with an excavating cutter-head that digs through the shell deposits. The shells are recovered by hydraulic suction. Reefs are typically buried under four to eight feet of sediment, and vary in thickness from one to eight feet. In a twenty-four hour period, the dredge barge covers about one hundred and forty linear feet. The physical result of the dredging on the sea bed is a series of shallow troughs and mounds.

The geography of the GCA includes open bays, marshes ranging from fresh water to brackish to saline and cypress-tupelogum swamps. Most notably, the GCA encompasses the Lower Atchafalaya Basin Flood-way, described as a “regionally unique faunal habitat”. Twenty-two different types of vegetation and marsh grasses are indigenous to the coastal area. Cypress-tupelogum swamps comprise large areas in the southeastern part of the Lower Atchafalaya Basin Floodway. Due to periodic flooding, these swamps are also an important part of the aquatic ecosystem, serving as a nursery area for sport and commercial fish. The swamps are home to nutria, mink, raccoon and are a breeding ground for wood ducks, heron and egrets.

Six different “impacts” associated with dredging are addressed in the GCA EAs: water quality (turbidity, contaminants, etc.), benthic organisms (oysters), nektonic organisms (fish, crabs and shrimp), the formation of the Atehafalaya Delta, the relationship between the trenches left by dredging and storm waters, and the impact caused by the dredging of exposed reefs.

Undoubtably, the most adverse impact attributable to dredging on the environment in the GCA would be the interruption of the delta-building process where the Atchafalaya River empties in the Gulf of Mexico:

Dredging in the developing Atehafalaya Bay Delta may seriously impact the formation of the delta mainly through loss of shallow water bottom and accelerated erosion, the Atehafalaya Bay Delta is projected to develop into more than 80 square miles of tidal wetlands. This new land development is a rare occurrence in coastal Louisiana, where marshes have been deteriorating at an average rate of 39 square miles a year. The delta is composed of approximately 16 square miles of vegetated islands, extensive shallow flats, and numerous interconnecting natural channels. Preliminary assessments from studies on Atehafalaya delta building indicate that dredging, and in particular shell dredging, apparently interferes with processes associated with the distribution of sediment within the delta complex.

1984 GCA EA at 11.

In light of the definite adverse impact on the Atehafalaya Delta, the 1984 GCA EA recommends that all shell dredging activities should be kept outside of the delta building area.

The Corps also found that dredging of exposed reefs affects the ecosystem of the tidal bays. Dredging these exposed reefs alters the natural water circulation patterns of the estuaries that are a nursery ground for “almost all of the economically important fish and shell fish.” Besides providing an important habitat for both marine life and birds such as gulls and terns, the reefs act as barriers which protect adjacent shorelines and marshes from wave erosion. Furthermore, sports fishing would be significantly impacted if dredging were allowed in areas near exposed reefs and other areas heavily fished, namely in certain parts of Vermilion and Weeks Bay. As with the Atehafalaya Delta, it is concluded that restricting dredging from the areas surrounding the exposed reefs and areas heavily utilized for sports fishing will greatly reduce the degree of impact.

The impact on water quality is generally considered minimal and of a temporary and short-lived nature. This same assessment holds true for nektonic organisms which, due to their mobility, can easily avoid dredging activities and feed elsewhere.

The Corps deemed the physical removal and/or burial of benthic organisms by dredging a significant impact on these organisms but that such impact would be limited to a small area in comparison to the vastness of the water bottoms involved. Any possibility of harm to live oyster beds can be alleviated by use of proper dredging techniques to assure that the turbidity plumes are carried away from the beds by currents, wind and gravity.

The Corps determined that the trenches left by dredging have no effect on directing storm surges toward the mainland.

Lakes Area

The shells dredged in the Lakes Area (LA) are primarily clam, or rangia cuneata. These fossil clam shells, unlike oyster shells, are not attached to one another in reef formations. The nature of the operation and equipment used in dredging this area is somewhat different than that used in the GCA, but the effect on the water-bottom is similar: a shallow trench about two feet deep and four to five feet wide. Lakes Pontchartrain and Maurepas are low salinity estuaries which together cover an area of approximately 723 square miles. The lakes are connected to one another through Pass Manchac and North Pass; Lake Pontchartrain connects with the Gulf of Mexico through the Rigolets, Chef Menteur Pass, Lake Borgne, the Mississippi Sound and several manmade waterways.

The lakes are highly turbid and the beds are predominantly silty clay. Marsh ranging from freshwater to brackish, with cypress-tupelogum swamp and urban areas surround Lake Pontchartrain; freshwater marsh and eypress-tupelogum swamp surround Lake Maurepas.

Thirty-six types of vegetation, including various marsh grasses, bald cypress and drummond red maple are indigenous to the area. A 1976 study relied on by the Corps lists 82 types of vertebrae and invertebrate collected in the LA. Among these are various types of mussels, clams and oysters, five types of shrimp, and numerous types of both saltwater and freshwater fish. A 1962 study noted by the Corps states that only four organisms maintain large resident populations in the Lake Area: anchovy, brackish water clams, mud crab and calanoid copepod. Of the claims, rangia cuneata is the most abundant.

Migratory waterfowl, such as scaup, mallards and coots as well as other birds reside in the LA. The marsh and swamp areas are inhabited by raccoon, oppossums, rabbit, nutria, muskrat, mink, white-tailed deer and squirrels.

The 1984 LA EA specifically addresses the impacts of shell dredging on benthic and nektonic organisms, vegetation, and water quality.

As in the coastal waters, the Corps found that the impact on nektonic organism in the LA is not significant due to the ability of these organisms to avoid dredging activity. Since dredging is prohibited in Lake Pontchartrain in areas shallow enough to support growth and Lake Maurepas is devoid of rooted submerged vegetation, the Corps found no impact on vegetation.

However, as in the GCA, the Corps discerned an adverse impact on the benthos of the LA attributable to dredging. The benthic organisms which are in the direct path of the dredge will be smothered by the discharge. In some instances, mud also flows outside the dredged cut. Nevertheless, the impact on the benthic community is not considered to be significant because the effects are temporary and short term. To a great extent, the finding of a less than significant effect on the benthos of the LA is grounded on the premise that the major adverse impact occurred 25-30 years ago.

The impacts to the water quality of Lake Pontchartrain associated with turbidity created by dredging is also considered minimal. This conclusion is based on the size, depth, volume and tidal action of the water body. Due to the smaller dimensions, a naturally occurring imbalance of the carbon-nitrogen-phosphorous ratio, seasonally high temperatures, low flushing rate and fresher water, that above proposition does not hold true for Lake Maurepas. Due to a combination of these factors, there is a “potential for the occurrence of a stressful system-wide event” in Lake Maurepas.

For this reason, it is recommended in the LA EA that dredging in Lake Maurepas be discontinued until a monitoring program designed to detect the onset of potentially unacceptable situations and a method of greatly minimizing the turbidity plumes can be implemented.

The Corps concluded that the so-called “dead zones” discovered in Lake Pontchartrain and the contaminants found in them are unrelated to shell dredging.

The 1984 LA EA poses the question: “What would happen if shell dredging were discontinued”? It is deduced that “considering the influences attributed to shell dredging over the last 50 years, the discontinuation of shell dredging would surely lead to the establishment of some other benthic community.” Id. at 20. The long-term impacts are summarized in this fashion:

Due to modifications of sediments caused by the direct-ever passage of a shell dredge, it is unlikely that a total recovery was ever possible. Nonetheless, if shell dredging were discontinued altogether and enough time were allowed to elapse, a self-sustaining benthic community would arise and stable sediment profile could become established. Persuasive evidence exists to show that recurrent shell dredging in Lake Pontchartrain precludes that possibility. Instead, recurrent shell dredging has induced the establishment of and does perpetuate the existence of a benthic community that exhibits attributes that are in synchrony with shell dredging. The induced community (that exists today) evidences many of the attributes ascribed to communities that: 1) have been subjected to prolonged periods of stress; and 2) arise during early stages of succession.

Id. at 20-21.

SIGNIFICANCE OF THE EFFECTS

Col. Lee, the District Engineer and ranking officer for the New Orleans District of the Corps, concludes that for both areas, the effects of dredging are not significant, given the conditions which are imposed on the dredging permits. For instance, he finds in regard to the GCA:

Although there are adverse impacts associated with shell dredging, the special conditions and other restrictions placed on the operations have reduced them to such extent that an environment impact statement is not required. No Federal resource agency indicated that the expected impacts are of enough significance to require preparation of an environmental impact statement.

GCA Revised Findings of Fact, p. 7

Similarly, in regard to the LA, Col. Lee concludes:

While it is recognized that shell dredging does cause impacts, my finding, based in part on my staffs review of all available studies and literature, does not indicate the impacts are of enough significance to require preparation of an environmental impact statement. I find the impacts of the shell dredging operations under the conditions of the permits to be hot significant.

LA Revised findings of Fact, pp. 7-8.

Both the Federal Defendants and the Defendants-In-Intervention reiterated in argument to the court that the effects of dredging, sans the conditions imposed in the permits, are significant. Nevertheless, the Defendants contend that the conditions are such that the need for an EIS is obviated.

The nature of judicial review is a limited one; the court cannot interject its opinion for that of the agency’s. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980). It is undisputed that the effects of dredging are environmentally significant, when not tempered by the restrictions set out in the permits. As such, the legal issue presented by the determinations made by the Corps in the case at bar is whether the Corps can consider the conditions in making a “significance” determination.

The majority of courts facing the issue have allowed agencies to avoid the EIS requirement by modifying projects to bring them below the significance threshold. Glitzenstein, Project Modification: Illegitimate Circumvention of the EIS Requirement or Desirable Means to Reduce Adverse Environmental Impacts? 10 Ecology Law Quarterly 253, 256 (1982). See also Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.Cir.1982); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1982); Simmans v. Grant, 370 F.Supp. 5, 21 (S.D.Tex.1974). Contra: Citizens for Responsible Area Growth v. Adams, 477 F.Supp. 994 (D.N.H. 1979). To date, the Fifth Circuit has yet to address the issue.

In disregarding the conditions imposed on the permits, the Plaintiffs rely on a statement published by the CEQ at 46 Fed. Reg. 18026 (1981) entitled “Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations.” The response to Question 40 suggests that “[mjitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal.” Id. at 18038.

In Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678 (D.C.Cir.1982), the appellants also relied on the above cited publication. The court deemed such reliance misplaced for several reasons. Firstly, the publication is not a regulation but is merely an informal statement, and thus is not entitled to the deference usually afforded administrative regulations. Id. at 682. Secondly, the underlying regulations do not reflect that consideration of mitigation measures is inappropriate, although the publication states that it imposes no additional requirements beyond those in the NEPA regulations. Id. at 683.

Regardless of the weight to which the aforementioned publication is entitled to, this court is convinced that consideration of mitigating conditions is not inconsistent with the policies of the NEPA. “The policies of the NEPA partly rest on informing Congress and the public about potential environmental effects, as well as exploring alternatives to the action which might lead to less environmental impact.” Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1041 (D.C.Cir.1973). The requirement of an EIS is designed to implement this policy by acting as a full disclosure of the environmental consequences of a proposed action, and by ensuring that an agency will integrate environmental concerns into its decision-making process at the earliest possible stages. Glitzenstein, supra at 264 (citations omitted).

The policy of disclosure and responsible environmental decision-making were given proper deference by the Corps in the ease sub judice. The EAs reflect an objective and independent assessment of a comprehensive compilation of studies and articles dealing with the overall short-term and long-term environmental impacts of shell dredging. There exists no valid reason to disregard the conditions imposed by the Corps, as well as those imposed by various state agencies. To do so is to ignore the realities of the proposed action and require an EIS because of the effects posed by a “hypothetical” project, rather than the effects of the actual proposal. See also Simmans, 370 F.Supp. at 18 (just as mitigation measures are required in an EIS, such measures should likewise be identified in an environmental impact appraisal). The procedural scheme of NEPA is not so inflexible that the actual effect of the proposal must take a back seat to the effects of an action to which in fact, the environment will not be subjected. Cf. Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1003 (D.C.Cir.1979).

Having decided that the Corps can properly consider the conditions imposed on the permits, the question of the reasonableness vel non of the “no significant effect” decision remains.

As for the GCA, the conditions address, inter alia, the primary concern of the effect on the emerging Atchafalaya Delta. Dredging is prohibited in a well-defined area near the Atchafalaya River Delta and the Wax Lake Outlet Delta. Likewise, dredging is prohibited within 1,000 feet of exposed oyster reefs and within 1,500 feet of any shoreline, and in specific areas heavily fished by sportsmen.

The Corps found that benthic organisms near or in the path of the dredge will be adversely impacted. But considering, as the Corps did, the limited number of benthic organisms so affected in comparison to the vastness of the area involved, the court finds the Corps’ ultimate conclusion a reasonable one. The CEQ NEPA guidelines indicate that in making the significance determination, it is proper, under certain circumstances, to consider a broad context in which the effect takes place. 40 C.F.R. § 1508.27(a). Many areas inhabited by benthos will be untouched by dredging. Moreover, there are no threatened or endangered species impacted by dredging activity.

The conditions imposed in the LA permits include, as mentioned infra, a complete prohibition of dredging in Lake Maurepas until a monitoring system program approved by the New Orleans District of the Corps is implemented to detect the onset of potentially unacceptable situations relative to turbidity. Dredging is also prohibited in certain areas of Lake Pontchartrain, including the eastern part which contains live oysters.

In regard to the impacts associated with turbidity on the benthos of Lake Pontchartrain, it is noted that the Corps’ conclusion that the effects are short-term and of a temporary nature, standing alone, are not enough to reduce the effects below the significance threshold. See 40 C.F.R. § 1508.27(b)(7). However, the court nevertheless finds reasonable the Corps’ conclusion that given the environmental status of Lake Pontchartrain, the effect on the present benthic community is insignificant. Sierra Club v. Hassell, 636 F.2d at 1099.

Furthermore, the state agencies have placed onerous conditions on the dredging activities for both areas as well. The manner of dredging and the number of shell dredging barges are restricted, not to mention specific areas which are off-limits. The requirement of the installation of a tamper-proof Loran C continuous location recording system on the dredge barges also assures that dredging is only done in those areas not restricted in the permits. Since the possible significant effects of dredging are mitigated by the conditions imposed by Corps and state agencies, the court finds that the Corps was not unreasonable in determining that preparation of an EIS is unnecessary.

CONCLUSION

IT IS ORDERED that:

(1) The Motion of Federal Defendants to Limit Review to Evidence Contained within the Administrative Record be and it is hereby GRANTED;

(2) The Motion of Federal Defendants and Defendants-In-Intervention to Dismiss the State of Louisiana and the Complaint (on all grounds) be and it is hereby DENIED;

(3) The Motion of Plaintiffs for Summary Judgment be and it is hereby DENIED; and

(4) The Motion of Federal Defendants and Defendants-In-Intervention for Summary Judgment be and it is hereby GRANTED.

      . The "private” Plaintiffs are Save Our Coast, Inc., The Orleans Audobon Society, Sierra Club, Manchac Fisherman’s Association and the Environmental Defense Fund.

      . The only documents presented to the court in regard to environmental impact that are not in the administrative record are the affidavits of Stephen Steimle and Maureen Mulino attached to the Brief in Support of the Defendants-In-Intervention Motion for Summary Judgment.

      . The 1984 GCA EA references 14 independent reports, studies and articles dealing with the subject matter, 6 reports drafted by the Corps concerning dredging in other tidal bay areas, and a Final Environmental Impact Statement prepared by the Louisiana Department of Natural Resources. The 1984 LA EA references over 70 independent reports and studies. Public hearings were conducted in regard to the continuation of dredging in both areas.

      . In this litigation, the State of Louisiana seeks to vindicate the rights of its citizens at large as well as the state's proprietary interests.

      . The Wildlife and Fisheries Commission is authorized to let state water-bottoms for the purpose of dredging shell deposits. La.R.S. 56:441(A). The Louisiana Coastal Commission, a branch of the Department of Natural Resources, has authority over the extension of coastal use permits. La.R.S. 49:213.11. It is undisputed that the dredging companies attained the leases and permits required by state law.

        . Central to the mover’s argument is the question of where exactly the interests of Louisiana lie. Although, as movers emphasize, the WFC derives revenues from the issuance of leases, the enabling legislation of both DNR and WFC proclaims, as a matter of public policy, that the natural resources and environment are primary considerations. See La.R.S. 49:213.2(5); La.R.S. 56:1. The court need not resolve whether the State of Louisiana’s posture in this litigation is aligned with that of the true public interest, and indeed should refrain from doing so. That decision is primarily a political one and is within the discretion of the Attorney General.

      . The CEQ NEPA regulations indicate that the Corps’ action qualifies as "major". 40 CFR § 1508.18(4). The parties do not contend otherwise.

      . That regulation provides:
      "Significantly” as used in NEPA requires considerations of both context and intensity:
      (a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.
      (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
      (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
      (2) The degree to which the proposed action affects public health or safety.
      (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
      (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
      (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
      (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
      (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
      (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
      (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
      (10) Whether the action threatens a violation of Federal, State or local law or requirements imposed for the protection of the environment.

      . After a May 23, 1984 Status Conference, the court granted the Corps additional time within which to reconsider its decision not to prepare an EIS. The Corps’ decision was originally based on EAs prepared in 1982. As a result of the reconsideration, a revised 1984 EA and Findings of Fact were generated for both areas. The court has previously denied a Motion brought by the Federal Defendants "To Remove the 1982 Environmental Documents from the Record and to Require Plaintiff to File an Amended Complaint.” Thus, both the 1982 and 1984 EAs are relevant to the court’s inquiry, particularly in light of the Corps' continued adherence to its original decision.

      . It is appropriate to consider the status quo of the environment in the area affected. Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir. 1981). The 1984 LA EA in the instant case summarizes various reports as concluding that the diversity of the benthic community that existed in Lake Pontchartrain in 1930’s (when dredging initially started) was lowered decades ago. A study noted by the Corps hypothesizes that the remaining benthos of Lake Pontchartrain is composed of only the “hardiest organisms of the original community.”

      . In Preservation Coalition, the court held that “when [the mitigating modifications are] to be undertaken by third parties, their commitments, while they need not be contractual, must be more than mere vague statements of good intentions.” 667 F.2d at 860 (citations omitted).

      . The court in Cabinet Mountains Wilderness also noted that the publication could not be afforded retroactive effect to the facts of that case. 685 F.2d at 683. The instant case presents no retroactivity bar to consideration of the publication.

      . See note 3, supra.

      . The Louisiana Department of Natural Resources and Wildlife and Fisheries Commission have imposed conditions on the permits and leases required by state law.


source: Caselaw Access Project

author: WEXLER, District Judge.

license: Public Domain

text:
    FIREMAN’S FUND INSURANCE CO., Plaintiff, v. PLAZA OLDSMOBILE LTD., et al., Defendants. FIREMAN’S FUND INSURANCE CO., Petitioner, v. Steven D’AMBRA, Community National Bank and Trust Company of New York, the Continental Insurance Company, Commercial Insurance Company of Newark, N.J., Boston Old Colony Insurance Company, Gregory Cappello, Steven Malla, Edith Murphy, Ann Marie Manzell and William Pisa, Respondents.
    No. CV 83-2213.
    United States District Court, E.D. New York.
    Sept. 17, 1984.

      Kornstein, Veisz & Wexler, New York City, for petitioner Fireman’s Fund Ins. Co.
    Shaw, Goldman, Licitra, Levine & Weinberg, Garden City, N.Y., for respondent Community Nat. Bank.
    Hendler & Murray, New York City, for respondent insurers.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is a proceeding brought pursuant to Rule 69(a) of the Federal Rules of Civil Procedure and N.Y.C.P.L.R. Sections 5225, 5227, and 5239, to enforce a judgment.

I. FACTS

In September 1981 respondent Community National Bank learned that one of its depositors, respondent Steven D’Ambra, acting in conjunction with an officer of the Bank, had deposited checks issued by various insurance companies on the basis of fraudulent insurance claims made by D’Ambra and persons in association with him. On October 14, 1981, D’Ambra executed an agreement with the Bank. The ' Agreement recited that D’Ambra acknowledged that he was not entitled to the proceeds of the checks and that the Bank might suffer damages as a result of claims made by the insurance companies. The agreement provided that the Bank would pay interest on D’Ambra’s accounts, and that “[n]o money shall be withdrawn from any of the above-named accounts until after the Statute of Limitations has expired for any civil suit. All funds which are on deposit at CNB in the above-named accounts on the date of this agreement shall be held by CNB in the accounts as collateral security to indemnify CNB for any loss it may incur as a result of any claims which may be made by any party including but not limited to, any insurance company, bank or individual.” The agreement was modified on September 15, 1982 to enable D’Ambra to deposit additional funds to bring the total funds to at least $200,000, to be evidenced by two Certificates of Deposit for at least $100,000 each, all such funds to be subject to the security interest. Certificates of Deposit bear high interest. The Bank retained physical possession of the Certificates.

Independently of the above mentioned agreement, D’Ambra owes the bank $20,-602.00 in outstanding loans.

On or about April 21, 1983 the respondent insurers commenced an action in New York Supreme Court, New York County, naming D’Ambra and the Bank as defendants, alleging that D’Ambra induced the respondent insurers to issue checks on the basis of fraudulent insurance claims, demanding a money judgment against D’Am-bra, alleging that D’Ambra’s accounts at the Bank contain proceeds of these checks, and demanding that the Bank be declared a constructive trustee on behalf of the insurers for the funds in the accounts. No claim was made at the time that the Bank had injured the insurers, and no claim against the Bank for money damages was made (except for costs and attorney fees).

On March 15, 1984 the New York Supreme Court, New York County, granted respondent insurers an order of attachment directing the sheriff to levy upon the property of and debts owing to Steven D’Am-bra. On March 19, 1984 the respondent insurers delivered this order to the sheriff of Richmond County. On or about March 21, 1984 the sheriff levied upon D’Ambra’s accounts at the Bank, by serving the order upon the Bank. On or about June 19,1984 the levy lapsed by virtue of N.Y.C.P.L.R. Section 6214(e), which provides that “[a]t the expiration of ninety days after a levy is made by service of the order of attachment, or of such further time as the court, upon motion of the plaintiff on notice to the parties to the action, has provided, the levy shall be void except as to property or debts which the sheriff has taken into his actual custody, collected or received or as to which a proceeding under subdivision (d) has been commenced.” Subdivision (d), it should be noted, deals with proceedings to compel the garnishee to transfer property or pay debts to the sheriff.

On June 21, 1984 we entered a money judgment in favor of petitioner against D’Ambra. Petitioner was a victim of D’Ambra’s fraud.

On June 22,1984 the respondent insurers moved before the New York Supreme Court for an order extending their levy nunc pro tunc from June 19, 1984 to June 19, 1985. On June 29, 1984, while said motion was still pending, the respondent insurers delivered an additional copy of the original order of attachment (dated March 15, 1984) to the sheriff of Richmond County. On July 2, 1984 the sheriff delivered this copy of the original order to the Bank, thereby purportedly levying a second time upon D’Ambra’s accounts.

On July 2, 1984 petitioner filed a transcript of this Court’s judgment in petitioner’s favor with the County Clerk of Richmond County, who then docketed the transcript. On July 3, 1984 petitioner delivered a writ of execution, signed by petitioner’s attorney, and issued in the name of this Court and bearing the civil docket number of this Court’s judgment (CV 83-2213), to the sheriff of Richmond County. On July 5, 1984 an under sheriff of Richmond County contacted petitioner and stated that the name on the execution should be changed to that of the New York Supreme Court, Richmond County. An agent of the petitioner then changed the name (not the docket number) by hand. Also on July 5, 1984, either before or after said change was made, the New York Supreme Court issued an order extending the respondent insurers’ levy nunc pro tunc from June 19, 1984 to December 19, 1984. On July 6, 1984 the sheriff served petitioner’s execution on the Bank.

On August 3, 1984 the respondent insurers amended their complaint in state court to assert a claim against the Bank for money damages.

II. DISCUSSION

A. APPLICABILITY OF STATE LAW

Under 28 U.S.C. Section 1962, a judgment rendered by a federal district court within a state operates as a lien upon property located in such state under the same conditions as a judgment rendered by a court of general jurisdiction of the state so operates. Further, such state may establish rules requiring a federal judgment to be docketed in a particular office before such lien attaches.

Under N.Y.C.P.L.R. 5018(b), “[a] transcript of the judgment of a court of the United States rendered or filed within the state may be filed in the office of the clerk of any county and upon such filing the clerk shall docket the judgment in the manner and with the same effect as a judgment entered in the supreme court within the county.” A judgment creditor who has such a transcript so docketed, as petitioner did on July 2, 1984, need not meet the requirements of the Uniform Enforcement of Foreign Judgments Act, N.Y.C.P.L.R. Art. 54, in order to enforce the judgment as a New York judgment. Knapp v. McFarland, 462 F.2d 935, 938-939 (2d Cir.1972).

From the foregoing it can be seen that petitioner’s rights herein are governed by state law, in the same manner as if petitioner had obtained a judgment from the New York Supreme Court. This is confirmed by Fed.R.Civ.P. 69(a), which provides in pertinent part that “[t]he procedure on execution, in proceedings supplementary to and in aid of judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, except that any statute of the United States governs to the extent that it is applicable.” In the instant case, no applicable federal statute prevents the application of state law.

B. PRIORITY AS BETWEEN PETITIONER AND RESPONDENT INSURERS

1. PRIORITY AS BETWEEN AN ORDER OF ATTACHMENT AND AN EXECUTION SERVED UPON THE SAME OFFICER — IN GENERAL

Petitioner argues that if petitioner obtains a judgment from this Court in the instant proceeding directing the Bank to turn over funds in the accounts to petitioner, such judgment will have priority over the respondent insurers’ order of attachment. This argument obviously begs the question of whether petitioner is in fact entitled to such a judgment. In order to determine this, we must determine the rights of adverse claimants to the funds. N.Y.C.P.L.R. Sections 5225, 5239. Petitioner’s argument on this point is therefore of no avail.

N.Y.C.P.L.R. 6226 provides in pertinent part that “[t]he priority between an order of attachment and an execution ... is set forth in section 5234.” N.Y.C.P.L.R. 5234(b) provides in pertinent part that “[wjhere two or more executions or orders of attachment are issued against the same judgment debtor and delivered to the same enforcement officer, they shall be satisfied out of the proceeds of personal property or debt levied upon by the officer in the order in which they were delivered.”

The respondent insurers delivered their order of attachment to the sheriff of Richmond County on March 19, 1984, long before petitioner delivered its execution to the sheriff of Richmond County. At first glance, therefore, it would appear that the respondent insurers’ have priority over petitioner by virtue of N.Y.C.P.L.R. 5234(b). As will be seen, however, the issue is in fact somewhat more complicated.

2. EFFECT OF EXPIRATION OF LEVY UPON UNDERLYING ORDER OF ATTACHMENT

a. THE PROBLEM

The provision of N.Y.C.P.L.R. 6214(e) that a levy by service of an order of attachment becomes void in ninety days except as to property or debts which the sheriff has taken into his custody, collected or received, or as to which a special proceeding has been commenced to compel the garnishee to transfer property or pay debts to the sheriff, unless the levy is extended by court order, by its terms deals only with the expiration of the levy, and not with the expiration of the underlying order of attachment, consequently, an order of attachment remains valid and can be used to levy even beyond ninety days after its issuance, at least where no previous levy has expired under N.Y.C.P.L.R. 6214(e). See Freedom Discount Corp. v. Clune, 32 A.D.2d 833, 302 N.Y.S.2d 465, 467 (1969). In the instant case, however, the sheriff made a levy on behalf of the respondent insurers which expired on June 19, 1984 by virtue of N.Y.C.P.L.R. 6214(e). The question therefore arises: when a levy is made by service on an order of attachment, and such levy expires pursuant to N.Y.C.P.L.R. 6214(e), and a different creditor serves an execution against the same debtor upon the same officer, and such officer thereupon levies upon the same property of the judgment debtor in the hands of the same garnishee (or upon the same debts owing to the judgment debtor by the same garnishee) as was previously levied upon, which shall have priority: the order of attachment or the execution?

b. THE ALLEGED POWER TO RE-LEVY

There is dictum for the proposition that, when a levy expires pursuant to N.Y.C.P. L.R. 6214(e), a second levy can be made upon the same property in the hands of the same garnishee (or upon the same debts owed by the garnishee) simply by having the sheriff serve a second copy of the original order of attachment upon the garnishee, without obtaining an extension of the original levy. National American Corp. v. Fed.Rep. of Nigeria, 448 F.Supp. 622, 634 (S.D.N.Y.1978), citing Freedom Discount Corp. v. Clune, supra. The National American dictum, however, is not in fact supported by the Freedom Discount case. In Freedom Discount, a plaintiff obtained a default judgment against defendant. The trial court then authorized the defendant to serve an answer, but failed to explicitly vacate the default judgment. Plaintiff then obtained an order of attachment from the court. Plaintiff then caused an income execution to be issued, on the theory that the default judgment was still valid. By means of the income execution, the sheriff obtained and delivered to plaintiff $611.41 of defendant’s wages. The trial court then explicitly vacated the default judgment, and ordered plaintiff to repay the $611.41 to defendant. Plaintiff then asked the sheriff to use the order of attachment (which was now two years old) to levy upon the $611.41 in plaintiff’s own possession. The Appellate Division authorized the levy, holding that the order of attachment was valid despite its age. The case thus involved only a single levy pursuant to an order of attachment.

The National American dictum, if true, would render N.Y.C.P.L.R. 6214(e) meaningless. If a creditor holding an order of attachment can have the sheriff levy over and over again simply by continually serving copies of the order upon the same garnishee, without ever attempting to compel the garnishee to turn over the property levied upon to the sheriff, and without obtaining a court extension order, the ninety-day period of N.Y.C.P.L.R. 6214(e) would be pointless. We therefore hold that, when a levy expires pursuant to N.Y.C.P.L.R. 6214(e), the sheriff cannot levy a second time upon the same property in the hands of (or debts owed by) the same garnishee without court approval. Consequently, the sheriff’s purported second levy on behalf of the respondent insurers on July 2, 1984 was void, as the original levy expired June 19, 1984 and had not been extended.

The question remains, however, as to whether the underlying order of attachment remained valid in the sense of allowing the respondent insurers to retain the priority they acquired on March 19,1984 by virtue of their service of the order upon the sheriff.

c. THE SOLUTION

If, as we have held, an order of attachment cannot be used to effectuate a second levy upon property or debts as to which a previous levy has expired pursuant to N.Y.C.P.L.R. 6214(e), it follows that the order of attachment is equally ineffective to provide its holder with priority over competing creditors in such property or debts. The primary purpose of an order of attachment is to protect a plaintiff against actions by a defendant or garnishee and not to protect a plaintiff against other persons holding claims against such defendant. We therefore hold that the respondent insurers ceased to have any priority in the accounts levied upon when such levy expired on June 19, 1984.

3. EFFECT OF PETITIONER’S SERVICE OF EXECUTION ON JULY 3

An order extending a levy which has lapsed pursuant to N.Y.C.P.L.R. 6214(e), such as the New York Supreme Court order dated July 5, 1984 extending respondent insurer’s levy, is without prejudice to any rights acquired by third persons between the expiration of the levy (here June 19) and the issuance of the extension order (here July 5). Kalman v. Neuman, 71 A.D.2d 996, 420 N.Y.S.2d 287 (1979); Seider v. Roth, 28 A.D.2d 698, 280 N.Y.S.2d 1005 (1967). We must therefore determine whether petitioner acquired any rights by virtue of its service of its execution on July 3, 1984.

An execution issued to a New York sheriff should be issued in the name of a New York court, N.Y.C.P.L.R. 5230(b), even if the underlying judgment was rendered by a federal court. Knapp v. McFarland, 462 F.2d 935, 938 (2d Cir. 1972). Consequently, petitioner’s execution issued in the name of this Court which petitioner served upon the sheriff on July 3, 1984, was defective (of course, it should be understood that the fact that an execution issued to a New York sheriff should be issued in the name of a New York court in no way changes the fact that the content of such execution should state in which court the underlying judgment was entered, N.Y.C.P.L.R. 5230(a)). However, we find that this defect is excusable. The error was trivial and understandable. The respondent insurers did not take any action in reliance upon the defect. The respondent insurers’ own actions are considerably less understandable. The respondent insurers stood idly by for the ninety-day period following the levy of March 21, 1984, without commencing a special proceeding to compel payment by the Bank to the sheriff, and without moving for an order extending their levy. Petitioner, by contrast, acted diligently after obtaining a judgment against D’Ambra on June 21,1984, by serving an execution upon the sheriff almost immediately after the expiration of the ten-day stay upon enforcement of judgment provided by Fed.R.Civ.P. 62(a). A defect should be disregarded if a substantial right of a party is not prejudiced. N.Y.C.P.L.R. 2001.

For the above reasons, we conclude that petitioner has priority over the respondent insurers by virtue of petitioner’s delivery of its execution to the sheriff on July 3, 1984, at a time when respondent insurers’ levy had lapsed as of June 19,1984 and had not yet been extended.

C. PRIORITY AS BETWEEN PETITIONER AND RESPONDENT BANK

As already noted, New York law is controlling, as no applicable federal statute has been shown to conflict with it.

Under New York law, “[ejvery debtor shall have the right upon ... the issuance of any execution against any property of ... a creditor, to set off and apply against any indebtedness ... of such creditor to such debtor any amount owing from such debtor to such creditor, at or at any time after the [issuance of the execution], and the aforesaid right of set off may be exercised by such debtor against such creditor ... notwithstanding the fact that such right of set off shall not have been exercised by such debtor prior to the ... issuance of execution ...” N.Y. Debtor and Creditor Law Section 151. In the instant case, since an execution has been issued against D’Ambra’s property, the Bank has the right to apply the Bank’s debts to D’Ambra against D’Ambra’s debts to the Bank. This is so regardless of whether the Bank exercised its right of set off prior to the issuance of the execution. Industrial Com’r v. Five Comers Tavern, 47 N.Y.2d 639, 419 N.Y.S.2d 931, 393 N.E.2d 1005 (1979). Consequently, the Bank has a right of set off to the extent of its loans of $20,602.00 to D’Ambra. The question remains, however, of whether the Bank has any additional rights by virtue of its security agreement with D’Ambra.

We begin by noting that the security agreement does not give rise to any current debt of D’Ambra to the Bank. While it is possible that D’Ambra will ultimately be found liable to the Bank, either pursuant to N.Y.C.P.L.R. Article 14 (which provides for contribution among persons liable for the same injury to property), or else pursuant to the New York common law doctrine of indemnity, the agreement does not give rise to any current liability. Consequently, we hold that N.Y. Debtor and Creditor Law Section 151 does not give the Bank any rights against petitioner by virtue of the security agreement. Although there is dictum for the proposition that a garnishee (such as the Bank), in defending a suit brought against it by a judgment creditor (such as petitioner) may employ “all defenses and set-offs” which the garnishee might have had against the judgment debtor (here D’Ambra), Industrial Com’r v. Five Corners Tavern, 47 N.Y.2d 639, 646, 419 N.Y.S.2d 931, 934-935, 393 N.E.2d 1005, 1008 (1979), the text of the statute speaks only of “any indebtedness” of the judgment debtor to the garnishee, and says nothing about any other defenses (such as the existence of a security agreement) which the garnishee might assert in a suit brought by the judgment debtor.

Security agreements are generally governed by the Uniform Commercial Code, Article 9. N.Y.U.C.C. 9-102(l)(a). Although Article 9 does not apply to a transfer of any interest in a deposit account, N.Y.U.C.C. 9-104(Z), the term “deposit account” does not include accounts, such as the instant accounts, which are evidenced by certificates of deposit, N.Y.U.C.C. 9-105(e). However, Article 9 does not apply “to any right of set-off”. N.Y.U.C.C. 9-104(i). Any rights acquired by the Bank pursuant to the instant agreement constitute rights of set-off. See 9 N.Y. Jurisprudence 2d, Banks Section 302. Consequently, Article 9 does not apply here.

Petitioner argues that the security agreement in question is invalid because the Bank did not provide D’Ambra with consideration. However, the Bank agreed to pay interest on the accounts. While this consideration may seem somewhat flimsy, since the Bank would pay interest in the ordinary course of business in any event, we are not to concern ourselves with whether D’Ambra made a good bargain. Consequently, the agreement is not void for want of consideration.

Petitioner argues that a promise made by a potential garnishee to a potential judgment debtor to prevent any future judgment creditor from levying upon debts owed by the garnishee to the judgment debtor is invalid. While this is true, Oppenheimer v. Dresdner Bank A.G., 50 A.D.2d 434, 377 N.Y.S.2d 625 (1975), aff'd, 41 N.Y.2d 949, 394 N.Y.S.2d 634, 363 N.E.2d 358 (1977), it does not follow that a garnishee may not assert against a judgment creditor rights which the garnishee has acquired for its own benefit from a judgment debtor.

We find that it would be inequitable to permit the Bank to assert rights under the instant security agreement against petitioner. The Bank claims these rights solely to indemnify itself against liability to third parties by virtue of any wrongdoing the Bank may have committed, either through negligence or through vicarious responsibility for the acts of its employee. Petitioner, by contrast, is an innocent party, and is in fact a victim of the very conspiracy for which the Bank may perhaps be vicariously liable, regardless of whether the specific funds fraudulently obtained by D’Ambra from the petitioner were or were not in fact deposited with the Bank. Consequently, we hold that the Bank has no rights against the petitioner by virtue of the agreement in question.

D. PRIORITY AS BETWEEN RESPONDENT BANK AND RESPONDENT INSURERS

The rights of the Bank against petitioner under N.Y. Debtor and Creditor Law Section 151 by virtue of its loans to D’Ambra are equally applicable against the respondent insurers, as said law by its terms deals with orders of attachment as well as with executions. We make this determination on the basis of pendent jurisdiction.

III. CONCLUSION

Pursuant to Rule 69(a) of the Federal Rules of Civil Procedure, the Clerk is directed to enter a judgment with respect to petitioner FIREMAN’S FUND INSURANCE COMPANY’S claims against respondents STEVEN D’AMBRA, COMMUNITY NATIONAL BANK AND TRUST COMPANY OF NEW YORK, THE CONTINENTAL INSURANCE COMPANY, GREGORY CAPELLO, STEVEN MALLA, EDITH MURPHY, COMMERCIAL INSURANCE CO. OF NEWARK, N.J., BOSTON OLD COLONY INSURANCE CO., ANN MARIE MANZELLA and WILLIAM PISA, but the Clerk shall not close the file on this case. The judgment shall provide that respondent COMMUNITY NATIONAL BANK is directed to turn over all funds being held by respondent COMMUNITY NATIONAL BANK on behalf of respondent STEVEN D’AMBRA to petitioner FIREMAN’S FUND INSURANCE COMPANY (with the exception of $20,602.00 representing the amount of loans made by respondent COMMUNITY NATIONAL BANK to respondent STEVEN D’AMBRA), in partial satisfaction of petitioner FIREMAN’S FUND INSURANCE COMPANY’S previously obtained judgment against defendants GEORGE SIFF and STEVEN D’AMBRA. The judgment shall further provide that respondent STEVEN D’AMBRA shall appear for oral examination under oath by petitioner FIREMAN’S FUND INSURANCE COMPANY. The judgment shall further provide that any state court orders previously issued are superseded insofar as they are inconsistent with this judgment.

SO ORDERED.

      . There is some suggestion in petitioner’s papers that the order of attachment was not intended to apply to the accounts. However, we see no merit in this suggestion, as the order of attachment does not by its terms limit the type of property belonging to D’Ambra or debts owing to D’Ambra upon which the sheriff is authorized to levy.

      . For an example of a case in which a federal statute, 26 U.S.C. Section 6331(a) (dealing with IRS tax liens), was applicable, see United States v. Sterling National Bank & T.Co., of N.Y., 360 F.Supp. 917 (S.D.N.Y.1973), affd in relevant part, 494 F.2d 919 (2d Cir.1974).


author: CRABB, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Matthew GRANGER, Scott A. Fountain, Randall D. Dahlin, Defendants.
    No. 84-CR-24-C.
    United States District Court, W.D. Wisconsin.
    Sept. 17, 1984.

      Asst. U.S. Atty. John Vaudreuil, Madison, Wis., for plaintiff.
    Charles Kernats, Madison, Wis., for defendant Fountain.
    Earl Munson, Madison, Wis., for defendant Granger.
    Michael Jan Steckelis, Madison, Wis., for defendant Dahlin.
   ORDER

CRABB, Chief Judge.

On March 29, 1984, the government applied for a search warrant to obtain and test samples of the blood of Scott A. Fountain. Upon issuance of the warrant by the United States Magistrate, blood was drawn from defendant Fountain on March 30, 1984. Subsequently, in a two count indictment returned on April 20, 1984, Scott A. Fountain, Matthew D. Granger, and Randall D. Dahlin were charged with murder and conspiracy to murder Boyd Spikerman, an employee of the United States Bureau of Prisons, in violation of 18 U.S.C. §§ 1111 and 1114. Now defendant Fountain has moved to suppress results of any tests performed with his blood on the ground that the search warrant granted to draw the blood sample was invalid.

The parties agree that the Fourth Amendment prohibition against unreasonable searches and seizures is applicable to the drawing of blood for evidentiary purposes. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, they disagree about the reasonableness of the seizure of defendant’s blood and about the consequences of a finding that the warrant was invalid. The government contends that even if the warrant is held to be invalid, the results of the blood test should not be suppressed because the officers executing the search warrant relied in good faith on its validity.

A copy of the challenged affidavit is attached as appendix A to this opinion. The essential elements are summarized below.

The affiant, Richard Staedtler, has been a special agent with the Federal Bureau of Investigation for fifteen years. He was told by Correctional Officer Gary Stammen that Stammen had found fellow correctional officer Boyd Spikerman lying in a large amount of blood in the officer’s unit office of Juneau Cottage within the Federal Correctional Institution in Oxford, Wisconsin, at approximately 5:20 a.m. on January 29, 1984, about 25 minutes after Stammen had last spoken by telephone with Spikerman. At approximately 5:35 a.m. on the same day, Stammen had observed blood on the door knob of the Juneau Cottage cell assigned to defendants Granger and Fountain. Staedtler was told by a confidential informant that he had observed Scott Fountain, Randall Dahlin, and Matthew Granger hurrying from the area of the correctional officer’s office in Juneau Cottage toward one of Juneau Cottage’s housing wings sometime after 2:00 a.m. on January 29, 1984. The informant told Staedtler that defendant Fountain was wearing a blue sweatshirt with a zipper down the front. During an investigation conducted later the same day, a blue, front zippered sweatshirt with blood on it was found in one of the bathroom stalls in Juneau Cottage.

Correctional Officer Jamison Zuehlke told Staedtler that he had found Spikerman lying with blood around his head at approximately 5:13 a.m. on January 29, 1984; that at the same time he had seen defendant Granger in the television viewing area of Juneau Cottage; that defendant Granger had approached Zuehlke saying, “I can’t sleep. I heard them again. I tried to tell them I didn’t mean to do it. Hurry, I can hear them again”; and that Zuehlke had ordered defendant Granger to lie on the floor, where he was handcuffed. While handcuffing defendant Granger, Zuehlke noticed blood and cuts on Granger’s hands.

Agent Staedtler learned from Cathy Schupback, a registered nurse, that she had attended Spikerman at 5:45 a.m. on January 29, 1984; that Spikerman was dead when she arrived; and that she estimated the time of his death to be approximately 5:15 a.m.

Agent Staedtler stated that he believed the information he received from Stammen, Zuehlke, and Schupback was reliable because these persons were reporting what they had observed personally while performing their official duties and because the information was corroborated by other sources. Staedtler stated he believed the information he received from the confidential informant to be reliable because “it is corroborated by information I received from other sources.”

After reviewing the averments of Staedtler’s affidavit, the magistrate found probable cause for the search warrant and issued it on March 29, 1984. On March 30, 1984, approximately 12 cubic centimeters of blood were removed from defendant Fountain.

OPINION

The starting point for an evaluation of the sufficiency of an affidavit in support of a search warrant is Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in which the United States Supreme Court clarified the standards for determining the reliability of confidentially-supplied information and for deciding whether there is probable cause to believe that contraband or evidence is located in a particular place. In the Gates case, a suburban police deputy had obtained a warrant to search the car and home of one Lance Gates and his wife, to look for contraband drugs. The warrant was based upon an affidavit setting forth the fact that the police had obtained from an anonymous letter and additional facts verified by a police deputy: that Lance Gates had reserved a place on a flight from Chicago to West Palm Beach, that he had boarded the flight, arrived in Florida, spent one night there and started to Illinois by car the next day, all in the manner described in the anonymous letter.

The Illinois Supreme Court concluded that, by itself, the anonymous letter did not provide the basis for a determination of probable cause and that the accompanying affidavit summarizing the corroborating information obtained by the police did not supply the missing indicia of reliability. Applying the two-pronged test derived from Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Illinois court analyzed the affidavit supporting the application for the search warrant to determine whether it revealed the letter writer’s “basis of knowledge,” as well as the reliability of the information or the veracity of the informant. The court found that the Spinelli test had not been satisfied, because there was nothing in the affidavit to indicate the letter writer’s basis of knowledge and also because there was no basis for concluding that the informant was credible. The court suggested that corroboration of details might never be sufficient to meet the veracity prong of the test, but such corroboration was clearly insufficient when it concerned only innocent details.

In reversing the Illinois Supreme Court, the United States Supreme Court rejected the idea that veracity, reliability and basis of knowledge are to be evaluated as “entirely separate and independent requirements to be rigidly exacted in every case,” Illinois v. Gates, 462 U.S. at-, 103 S.Ct. at 2327-28. The Court held that if the affidavit includes reference to a confidential informant, reviewing courts are not to apply the two-pronged inquiry analyzing independently the basis of the informant’s knowledge and his or her veracity, but instead are to consider those two factors in a “balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Id. at-, 103 S.Ct. at 2330. “An informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ ... should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id. at---, 103 S.Ct. at 2327-28.

In evaluating the sufficiency of an affidavit, the magistrate is to

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. at-, 103 S.Ct. at 2332. The court reviewing the magistrate’s decision is not to undertake a de novo review, but should pay “great deference” to the magistrate’s determination. The task of the reviewing court is to ensure simply that the magistrate “ ‘had a substantial basis for ... concludpng]’ that probable cause existed.” Id., quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).

Reviewing the sufficiency of the affidavit at issue here in the nontechnical manner directed by the Supreme Court, and giving due deference to the magistrate’s decision, I conclude nonetheless that the magistrate did not have a substantial basis for concluding that evidence relevant to Spikerman’s death would be found in defendant Fountain’s blood. Staedtler’s affidavit does not provide a basis for finding that defendant Fountain was probably involved in the murder or that a test of his blood would be likely to produce evidence of his involvement.

In the affidavit, Staedtler says only that a confidential informant had said that he had seen defendant Fountain in defendant Granger’s area of the officer’s unit office sometime after 2:00 a.m. and that defendant Fountain had been wearing a blue, zippered sweatshirt; that a bloodied, blue, zippered sweatshirt was found later in a bathroom stall; and that blood was seen on the doorknob of the cell defendant Fountain shared with Granger.

Information supplied by a confidential informant cannot establish probable cause for a warrant unless there is some indication that the information is reliable. As the Supreme Court noted in Illinois v. Gates, 462 U.S. at-, 103 S.Ct. at 2326, an anonymous tip that provides nothing from which one might conclude that the informant is honest or that his information is reliable or one that “gives absolutely no indication of the basis for [the informant’s] predictions” does not provide a basis for a probable cause finding.

In the present case, the informant’s statements are not simply without support; they are inherently suspect because of their source. As an inmate of Juneau Cottage, the informant must be considered to be under suspicion. From that standpoint alone, it would have been to his advantage to describe another inmate as having been seen in suspicious circumstances wearing a sweatshirt similar to the one that had been found with blood on it, and if he himself was the owner and wearer of the blue sweatshirt, it would be particularly to his advantage to tell the FBI that he had seen defendant Fountain wearing it.

Since nothing in the informant’s own statement provides an independent basis for concluding that he is credible or that his observation is reliable, some other indicia of reliability is required. The Supreme Court suggests that the additional information may be supplied through a statement by the affiant of the informant’s proven reliability in other instances, or by a showing that the information supplied would subject the informant to criminal liability if it were proved to have been fabricated, or if the information is detailed and explicit and is accompanied by “a statement that the event was observed first-hand.” Illinois v. Gates, at-, 103 S.Ct. at 2330. Recognizing that none of the indicia suggested by the Supreme Court are present here, the government contends that the discovery of the bloody sweatshirt provides the necessary corroboration of the informant’s observations. Clearly, it does not. The finding of a bloody sweatshirt matching the description of the one the informant reported seeing may corroborate the informant’s statement that he saw someone wearing such a sweatshirt. But the affidavit is silent as to whether blue zippered sweatshirts are unique items of clothing within the institution or whether they are standard issue along with khaki shirts and slacks, whether defendant Fountain had been known to own such a sweatshirt and, if so, whether it was missing from his cell, or even whether the bloody sweatshirt was of a size that could fit defendant Fountain. Thus, it does not corroborate the informer in the sense that it provides the magistrate with independent evidence of the reliability of the informant’s identification of defendant Fountain as the person wearing the sweatshirt, and it does nothing to rebut the possibility that it was the informant himself who wore the sweatshirt.

Alternatively, the government suggests that the discovery of the blood on the doorknob of defendant Fountain’s cell supports the reliability of the confidential information or that it provides a basis for the issuance of the warrant in and of itself. The flaw in this suggestion is that the affidavit is silent as to where defendant Fountain was when the blood was discovered. Affiant Staedtler never says that defendant Fountain was found in his cell or near it. Without such a statement, it is pure speculation that it was defendant Fountain and not any other Juneau Cottage resident, including defendant Granger, who touched the doorknob in the twenty-minute period between Spikerman’s death and the discovery of the blood on the doorknob. Since defendant Fountain’s presence in or near the cell would have been so easy to ascertain, the omission of any information on this point seriously undermines any force the discovery of the blood would otherwise have had.

Although Staedtler makes a general, ambiguous averment in the affidavit that he believed the informant because his information was corroborated by information received from other sources, this statement does not supply the necessary indicia of reliability, however it is interpreted. If by “other information,” Staedtler refers to the discovery of the sweatshirt, that discovery is no proof of the reliability of the identification of defendant Fountain, as I have pointed out above. If Staedtler is saying that he has received other information not described in the affidavit, his statement provides nothing that a magistrate can evaluate.

Finally, the affidavit is insufficient because Staedtler never sets forth facts from which the magistrate could have found probable cause to believe that defendant Fountain’s blood would be of evidentiary value. Staedtler does not say that defendant Fountain had blood or cuts on him, so as to suggest that his blood might be on Spikerman or on the doorknob. Neither does he say that the circumstances of the death were such that it would have been likely that anyone involved would have been cut. The reader of the affidavit is left completely in the dark about the point of the search.

Because there is nothing in the affidavit to establish the reliability of the confidential informant, because the bloody doorknob is of so little significance in the absence of any indication that defendant Fountain had been near the doorknob, and because there is no explanation of the basis for the “search” of defendant Fountain’s blood, I conclude that the magistrate did not have a substantial basis for concluding that there was probable cause to believe that evidence material to the murder of Boyd Spikerman would be discovered from a test of defendant Fountain’s blood.

The next question is whether the FBI relied in objective good faith on the issuance of the warrant. This question arises as a consequence of the Supreme Court’s decision in U.S. v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), in which the court held that imposition of the exclusionary sanction is a question separate from that of whether Fourth Amendment rights have been violated. If the law enforcement officer has relied upon the validity of a warrant issued by a magistrate and if the officer’s reliance is objectively reasonable, “the marginal or nonexistent benefits produced by suppressing evidence ... cannot justify the substantial costs of exclusion.” Id. — U.S. at-, 104 S.Ct. at 3421. Suppression remains an appropriate remedy in four situations: 1) if the affiant provides information he knows or should know is false; 2) if the magistrate wholly abandons his judicial role; 3) if the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or 4) if the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Id. at-, 104 S.Ct. at 3421.

There is no contention in this case that the information in the affidavit was false, that the magistrate abandoned his judicial role in issuing the search warrant, or that the warrant was deficient on its face. The question of good faith is solely whether the affidavit was “so lacking in indicia of probable cause,” that it was unreasonable for Agent Staedtler to rely upon it.

Analyzed in a commonsense, nonhypertechnical way, the affidavit does not supply anything more than the most tenuous and conclusory suggestion that defendant Fountain was even involved in the death of Spikerman, much less that his blood would reveal evidence of the crime. In my view, no reasonably well-trained law enforcement officer would have been justified in relying on the warrant, knowing, as Staedtler did, of the paucity of information in the affidavit presented to the magistrate.

Unless the courts are to abandon entirely their obligation to review applications for search warrants and the concomitant responsibility to try to deter unreasonable law enforcement activity (a suggestion that was denied explicitly by the United States Supreme Court in Leon, — U.S. at-- -, 104 S.Ct. at 3418-19.), in this instance the results of any tests of blood drawn from defendant Fountain pursuant to the search warrant issued on March 29, 1984 must be suppressed.

ORDER

IT IS ORDERED that defendant Fountain’s motion to suppress the result of the blood tests performed on blood taken from him pursuant to the search warrant issued on March 29, 1984, is GRANTED.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA v. SCOTT AARON FOUNTAIN, BOP Reg. No. 39041-066, a 24 year old white male, presently incarcerated at the Federal Correctional Institution, Oxford, Wisconsin.

AFFIDAVIT

STATE OF WISCONSIN)

) ss

COUNTY OF DANE )

Richard P. Staedtler, being first duly sworn on oath, deposes and says that:

1. I am a Special Agent with the Federal Bureau of Investigation and have been so employed for 15 years.

2. I have reviewed the records of the Federal Correctional Institution at Oxford, Wisconsin and they reveal that from August 7, 1983 to January 29, 1984, Boyd Spikerman was an employee of the United States Bureau of Prisons at the Federal Correctional Institution, Oxford, Wisconsin, and was employed as a correctional officer at that institution. On the night of January 28 and the early morning of January 29, 1984, Boyd Spikerman was the correctional officer in charge of the housing unit of FCI-Oxford designated as Juneau Cottage.

3. Correctional Officer Gary Stammen, a correctional officer at FCI-Oxford, provided information and said that he had spoken to Boyd Spikerman on the telephone at approximately 4:55 a.m. on January 29, 1984. At that time, Boyd Spikerman was present in the unit office in the Juneau Cottage housing unit. Mr. Stammen said he received instructions to go to Juneau Cottage at approximately 5:15 a.m. He arrived at Juneau at approximately 5:20 a.m. He saw Boyd Spikerman lying on the floor of the officer’s unit office in a large amount of blood. At approximately 5:35 a.m. he proceeding to cell C-l in Juneau Cottage, which was assigned to Matthew Granger and Scott Fountain. Stammen saw blood on the door knob of this cell. The door knob was removed by the FBI for analysis of the blood sample.

4. Correctional Officer Jamieson Zuehlke, a correctional officer at FCI-Oxford, provided information and said that at approximately 5.T3 a.m., January 29, 1984, he had entered Juneau Cottage to conduct an official count of the inmates there. Correctional Officer Zuehlke saw Officer Boyd Spikerman lying face down in the unit office with blood around the area of his head. Officer Zuehlke knocked on the door but received no response from Boyd Spikerman. At that time Officer Zuehlke saw inmate Matthew Granger in the television viewing area of the unit. As Officer Zuehlke backed away from the unit office and radioed for help, inmate Matthew Granger approached him with his hands in front of him stating “I can’t sleep. I heard them again. I tried to tell them I didn’t mean to do it. Hurry, I can hear them again.” Officer Zuehlke instructed Matthew Granger to lie face down on the floor with his hands behind him. Officer Zuehlke then handcuffed Matthew Granger and observed blood and cuts on the palms of Granger’s hands. At approximately 5:14 a.m., Officer Zuehlke entered the unit office with another correctional officer, and upon checking Boyd Spikerman’s pulse, was able to detect no pulse.

5. I also interviewed a confidential informant regarding the death of Boyd Spikerman. This confidential informant told me that he went to bed in Juneau Cottage, at FCI-Oxford, at approximately 2:00 a.m. the morning of January 29, 1984. Sometime after that during the night, while it was still dark outside, the confidential informant got up to go to the bathroom. As he opened his cell door he saw Scott Fountain, Matthew Granger, and Randall Dahlin hurrying together from the area of the correctional officer’s office in Juneau Cottage towards one of .the housing wings in Juneau Cottage. The confidential informant observed that Scott Fountain was wearing a blue sweatshirt with a zipper down the front.

6. During the murder scene investigation conducted later on January 29, 1984, a blue sweatshirt, with a zipper down the front, was recovered from one of the bathroom stalls in Juneau Cottage. This blue zippered sweatshirt had blood on it.

7. Cathy Schupbach was also interviewed. Ms. Schupbach stated that she is a registered nurse at the Adams County Memorial Hospital and accompanied the ambulance crew to FCI-Oxford in the early morning hours of January 29, 1984. She entered Juneau Cottage at approximately 5:45 a.m. with an Emergency Medical Technician and observed a white male lying face down in a pool of blood on the floor of the unit office. She cheeked the white male for any respiratory response and there was no respiratory response visible. She stated she further checked the vital signs of this individual and observed no vital signs of life and thereafter observed that the pupils on the white male had become fixed. She determined that the white male in the officer’s unit office at Juneau Cottage was dead on arrival, in view of the fact that the blood had started to coagulate around the patient. She estimated the time of death to be approximately 5:15 a.m.

8. I believe the information I received from the correctional officers identified in my affidavit is reliable because they are law enforcement officers reporting what they personally observed and also because their observations were corroborated by the observations of the citizen nurse, Ms. Cathy Schupbach. I believe the information received from Ms. Schupbach is reliable because she is a citizen medical person providing information gained in the performance of her official duties. I believe the information I received from the confidential informant is reliable because it is corroborated by information I received from other sources.

Dated this 29th day of March, 1984.

/s/Richard P. Staedtler

Richard P. Staedtler, Special Agent Federal Bureau of Investigation

Subscribed and sworn to before me this 29th day of March, 1984.

/s/John W. Vaudreuil

Notary Public, Dane County

State of Wisconsin

My Commission: is permanent

      . Defendant’s original suppression motion was directed to suppression of fingerprints taken from him, the blood test results, physical evidence taken from his cell, statements defendant Fountain made to FBI agents and other investigators, and other physical evidence or statements obtained without a warrant or with legal counsel. Defendant has withdrawn all portions of the motion except that which relates to the suppression of the blood test.

      . If the warrant were directed at defendant Granger, it would be more than adequate. The credible information in the affidavit shows that defendant Granger was in the immediate vicinity of the crime within minutes after the crime is thought to have been committed, that he was acting peculiarly, and that he had blood and cuts on the palms of his hands.

      . Although the affidavit does not state whether the informant’s statement was obtained before the sweatshirt was found, common sense suggests it was not. The institution at Oxford is more than an hour’s drive from the FBI offices in Madison and the crime occurred well before ordinary office hours. It is highly unlikely that Agent Staedtler would have been at the institution interviewing a confidential informant before the search of the scene had turned up an object as large as a sweatshirt. It is even more unlikely, given the nature of communication within the institution, that the discovery of the sweatshirt would not have been known immediately to every inmate within the institution.

      . This is not a case in which haste or emergency circumstances were mitigating factors. The affidavit was sworn to two months after Spikerman’s body had been discovered.

      . See particularly U.S. v. Leon, — U.S. -, - n. 20, 104 S.Ct. 2317, 3421, n. 20, 76 L.Ed.2d 527:
      ******
      Grounding the modification [of the exclusionary rule] in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment." Illinois v. Gates, 462 U.S., at-, n. 15, 103 S.Ct. at 2344 n. 15 (White, J., concurring in the judgment); see Dunaway v. New York, 442 U.S., [200] at 221 [99 S.Ct. 2248 at 2261, 60 L.Ed.2d 824 (1979)] (Stevens, J., concurring). The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.