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ALLIANCE TO PROT. NANT. SOUND v. U.S. DEPT., ARMY

No. 03-2604.

398 F.3d 105 (2005)

ALLIANCE TO PROTECT NANTUCKET SOUND, INC.; Ronald G. Borjeson; Wayne G. Kurker; Shareen Davis; Ernest R. Eldredge; David Ellsworth; Robert Hazelton; Osterville Anglers Club, Inc.; Hyannis Anglers Club, Inc., Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF the ARMY; Thomas E. White, in his Official Capacity as Secretary of the Army; United States Army Corps of Engineers; Lt. General Robert B. Flowers, in his Official Capacity as Chief of Engineers for the United States Army Corps of Engineers; Colonel Thomas L. Koning, in his Official Capacity as District Engineer for the United States Army Corps of Engineers; Cape Wind Associates, LLC, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided February 16, 2005.

Attorney(s) appearing for the Case

Benjamin S. Sharp, with whom Donald C. Baur, Perkins Coie LLP, Franklin H. Levy and Duane Morris, LLP, were on brief, for appellants.

David C. Shilton, Attorney, United States Department of Justice, with whom Thomas L. Sansonetti, Assistant Attorney General, Environment and Natural Resources Division, Gerard T. Leone, Acting United States Attorney, Anton P. Giedt, Assistant United States Attorney, Jon M. Lipshultz, John A. Bryson, and Richard Santino, of cousel, Army Corps of Engineers, Concord, MA, were on brief, for the federal appellees.

Timothy J. Dacey, with whom Kurt W. Hague and Goulston & Storrs, P.C., were on brief, for appellee Cape Wind Associates, LLC.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.

TORRUELLA, Circuit Judge.

On November 20, 2001, Cape Wind Associates, L.L.C. ("Cape Wind") submitted an application to the U.S. Army Corps of Engineers ("Corps") for a navigability permit under Section 10 of the Rivers and Harbors Act of 1899 ("Section 10"), 33 U.S.C. § 403,1 to construct and operate an offshore data tower in an area of Nantucket Sound known as Horseshoe Shoals. Horseshoe Shoals is located on the Outer Continental...

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