Natural Resources Defense Council, Inc. v. Grant

• Decision Date: 15 March 1972
• Docket Number: Civ. No. 754.
• Citation: 341 F. Supp. 356
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Kenneth E. GRANT, in his official capacity as Administrator, United States Department of Agriculture, et al., Defendants, and Robert D. Stokes et al., Intervenors, and Pitt County Drainage District Number Nine, Intervenor.

341 F. Supp. 356

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Kenneth E. GRANT, in his official capacity as Administrator, United States Department of Agriculture, et al., Defendants and Robert D. Stokes et al., Intervenors and Pitt County Drainage District Number Nine, Intervenor.

Civ. No. 754.

United States District Court, E. D. North Carolina, Washington Division.

March 15, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John G. Shaw, of Clark, Clark, Shaw & Clark, Fayetteville, N. C., Richard J. Wertheimer, Norton F. Tennille, Jr., of Arnold & Porter, Washington, D. C., J. G. Speth, National Resources Defense Council, Inc., Washington, D. C., for plaintiffs.

Warren H. Coolidge, U. S. Atty., E.D. N.C., Raleigh, N. C., John R. Hughes, Asst. U. S. Atty., E.D.N.C., Land & Natural Resources Section, Raleigh, N. C., Stewart Schoenberg, Land & Natural Resources Division, U. S. Dept. of Justice, Washington, D. C., for defendants.

Frank M. Wooten, Jr., Greenville, N. C., Charles B. Winberry, Jr., of Biggs, Meadows & Batts, Rocky Mount, N. C., Clifton W. Everett, of Everett & Cheatham, Bethel, N. C., for intervenors.

MEMORANDUM OPINION AND ORDER

LARKINS, District Judge:

Now comes this cause before this Court on the plaintiffs' Motion for a Preliminary injunction to enjoin the defendants herein and their agents and employees from opening any bids with respect to Invitation for Bids No. CCw-1, and from taking any steps to authorize, approve, fund, finance, sponser, participate in, contract for, or commence construction or installation of the Chicod Creek Watershed Project (hereinafter called "Project"), pending the final hearing and determination of this cause. The plaintiffs have filed this action to permanently enjoin the construction of the Project in Pitt and Beaufort Counties, North Carolina because construction of this $1.5 million, 66-mile stream channelization project allegedly would violate the Watershed Protection and Flood Prevention Act, P.L. 83-566, 16 U.S.C. §§ 1001-1009 (1970), the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970), and the rules and regulations of the Soil Conservation Service, United States Department of Agriculture.

In support of the motion for preliminary injunction, the plaintiffs allege that the defendants propose to proceed to construction of the Project without preparing and circulating any environmental impact statement as required by Section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 ("NEPA"). The defendants in response contend that:

(1) An "environmental impact statement" (a particular form) is not required in the case at bar;

(2) That an equivalent and equally appropriate procedure has been utilized by the defendants in the formulation of this project;

(3) The requirements of the National Environmental Policy Act, as construed by the Council on Environmental Quality and the Administrator of the Soil Conservation Service, United States Department of Agriculture, have been met; and

(4) The plaintiffs lack standing to sue.

The intervenors, in opposition to the motion for preliminary injunction, contend (1) that such would impair contractual obligations, (2) that the plaintiffs lack standing to sue, and (3) that a Section 102(2) (C) statement is not required absent administrative determination that an action is a "major federal action which significantly affects the quality of the human environment.

FINDINGS OF FACT

A. The Action

The complaint in this proceeding was filed on November 30, 1971, and, also at this time the plaintiffs moved for a temporary restraining order and a preliminary injunction. On December 13, 1971, this Court entered an Order setting a hearing upon the plaintiffs' motions for December 14, 1971, in Trenton, North Carolina. On this same date the hearing was continued by Order of this Court for a period of not more than thirty (30) days upon defendants having shown good cause for such. This Court on December 29, 1971, entered an Order setting the hearing on the plaintiffs' motions for a temporary restraining order and a preliminary injunction for January 5, 1972, at New Bern, North Carolina. On January 3, 1971 this Court entered ex parte Orders allowing Pitt County Drainage District Number Nine and landowners to intervene. On January 5, 1972, a hearing was conducted by this Court upon the plaintiffs motions. At this hearing this Court vacated the Order granting intervention upon objection by the plaintiffs; denied the defendants' motion to dismiss; and continued the hearing on the preliminary injunction until January 28, 1972, at New Bern. Subsequently, all parties waived further oral argument with respect to the preliminary injunction and intervention. By a Memorandum Opinion and Order entered by this Court on February 1, 1972, the applicants for intervention, the Drainage District and the landowners were granted leave to intervene and were permitted ten (10) days within which to file opposition to the motion for preliminary injunction. By Order entered February 11, 1972, the above time was extended to and including February 17, 1972, at which time the intervenors submitted a brief in opposition to the plaintiffs' motion for a preliminary injunction. Upon receipt of the plaintiffs' response on February 28, 1972, this matter became ready for ruling.

B. The Parties

1. Natural Resources Defense Council, Inc. is a national conservation organization dedicated to the preservation and defense of the natural resources of the United States and is particularly concerned with stream channelization programs of the Soil Conservation Service.

2. Plaintiff North Carolina Wildlife Federation, Inc. is a sportsman's organization dedicated to achieving a quality environment in the public interest and is concerned with the channelization of natural streams in the State of North Carolina. It is the largest conservation organization in the State of North Carolina and is affiliated with plaintiff National Wildlife Federation.

3. Plaintiff Pamlico-Tar Conservation Coalition is an unincorporated association organized to preserve and protect the natural resources of the Pamlico-Tar River Basin Area. It has approximately sixty-five (65) members residing in the Pamlico-Tar River Basin.

4. Plaintiff National Wildlife Federation is a nationwide conservation organization dedicated to the restoration, wise use, and perpetuation of the national resources of the North American continent. Plaintiff North Carolina Wildlife Federation is an affiliate member organization and has approximately 14,000 members in North Carolina.

5. Plaintiff Friends of the Earth is a conservation organization dedicated to the preservation, restoration, and rational use of the environment in the United States and throughout the world. This organization is concerned with the channelization projects of the Soil Conservation Service. Friends of the Earth has members in North Carolina who are concerned about channelization of natural streams in this state.

6. Defendant Kenneth E. Grant is the Administrator of the Soil Conservation Service, United States Department of Agriculture.

7. Defendant Hollis R. Williams is Deputy Administrator for Watersheds of the Soil Conservation Service, United States Department of Agriculture.

8. Defendant Earl L. Butz is Secretary of the United States Department of Agriculture.

9. Defendants Grant, Williams, and Butz are the officials of the United States Government responsible for the authorization and administration of projects undertaken pursuant to the Watershed and Flood Prevention Act, P.L. 83-566. These defendants are obliged to plan, approve, oversee and direct the construction and installation of such projects in accordance with the provisions of P.L. 566, NEPA, and the rules, regulations, and policies of the Soil Conservation Service.

10. Defendant James V. Smith is Administrator, Farmers Home Administration, United States Department of Agriculture. The Farmers Home Administration makes loans to finance construction in P.L. 566 projects.

11. Defendant Jesse L. Hicks is the Soil Conservation Service State Conservationist for the State of North Carolina, and is the principal SCS official in this state.

12. Defendant Larry Tucker is the Contracting Officer for Pitt County Drainage District Number Nine, and the Contracting Officer for the Project.

13. Intervenors Robert D. Stokes, Leon R. Hardee, Marvin L. Mills, Ben D. Forrest, Jr., Fred Edwards, Grover Hodges, and Robert Little are intervenors on behalf of themselves and all other landowners within the boundaries of Pitt County Drainage District Number Nine as a class. ("landowners")

14. Intervenor Pitt County Drainage District Number Nine is a governmental subdivision of the State of North Carolina formed for the express purpose of directing citizen and landowner participation in the Project and is responsible for financing part of the non-federal cost of the Project.

C. The Project

Chicod Creek Watershed, located in mid-eastern North Carolina, covers an area of 35,100 acres of which 29,625 acres are in Pitt County and 5,475 acres in Beaufort County. Plans for solving flooding, water management, and other resource problems have been prepared with the concurrence of local sponsors and with federal assistance under the provisions of P.L. 566. The sponsoring local organizations are the Pitt Soil and Water Conservation District, Beaufort Soil and Water Conservation District, Pitt County Board of Commissioners, and Pitt County Drainage District Number Nine. Under the Chicod Creek Watershed Work Plan and Supplements, the local organizations assume all local responsibilities for the installation operation and maintenance of planned structural works.

The topography of the watershed is nearly level to gently sloping. The outer perimeter is flat and well drained and the flood plains are broad swamps. Land use in the...