Allison v. Froehlke
| Decision Date | 27 December 1972 |
| Docket Number | No. 72-2219.,72-2219. |
| Citation | 470 F.2d 1123 |
| Parties | Charles C. ALLISON et al., Plaintiffs-Appellants, v. Robert C. FROEHLKE, Secretary of the Army, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard A. Shannon, Austin, Tex., for Charles C. Allison and others.
Lloyd A. Doggett, Austin, Tex., for Save our Streams, and others.
Bob Burleson, pro se and for the Texas Explorers' Club.
William S. Sessions, U. S. Atty., Harold O. Atkinson, Asst. U. S. Atty., San Antonio, Tex., Richard Kleindienst, Atty. Gen., Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, William M. Cohen, Jacques B. Gelin, Attys., U. S. Dept. of Justice, Washington, D. C., for defendants-appellees.
Before JOHN R. BROWN, Chief Judge, and MOORE* and RONEY, Circuit Judges.
This is an appeal by the plaintiffs from an order entered in this action on June 8, 1972, denying their motion for a preliminary injunction. Thus the sole appellate issue now presented is the propriety of the denial of a preliminary injunction by the district judge in light of the facts and the principles of law relating to preliminary restraining orders. A brief recital of the nature of this action, the parties thereto and the facts presented by the pleadings, affidavits, exhibits and testimony is required as a background against which to judge the decision below.
In essence the amended complaint seeks a permanent injunction against the construction of three reservoirs and dams on the San Gabriel River which form part of a flood control project in the Brazos River Basin, namely, Laneport, North Fork and South Fork, all located in Williamson County, Texas. The gist of plaintiffs' allegations is that the project as presently planned and about to be executed by the defendants (1) has not been authorized by Congress; and (2) violates specific environmental and related statutes.2
The plaintiffs constitute a group having personal and property interests in the areas which they assert will be adversely affected. Thus, for example, the plaintiff Allison is fearful that his land will be condemned if the Laneport Reservoir is constructed; the plaintiff Burleson believes that his enjoyment of canoeing on the River will be lessened and, as President of The Texas Explorers' Club, alleges that wildlife in the area will be jeopardized. The other plaintiffs all share genuine worries as to the effect of the project on the environment. For purposes of this decision, their interests both personal and proprietary are apparent, their concern is respected and their standing to sue recognized.
Reference must briefly be made to antecedent Congressional legislation.
In 1954 Congress authorized a system of reservoirs for flood control and other purposes in the Brazos River Basin (Flood Control Act of 1954, 68 Stat. 1259). Construction of the Laneport Reservoir "substantially in accordance with the recommendations of the Chief of Engineers in House Document Number 535, Eighty-first Congress" was approved and funds for partial accomplishment appropriated.
Thereafter, Congress in 1955 requested the Corps to determine whether a change in site of this reservoir might be advisable. A modification in plan was recommended which added North Fork and South Fork to Laneport. This modification was embodied in the Flood Control Act of 1962, 76 Stat. 1185, again to be "substantially" as recommended by the Chief of Engineers. Reference to this House Document Number 591 will be H. 591.
Because of the many public authorities3 involved, whose opinions and concurrences had to be obtained, the project proceeded with definitely deliberate speed and at an equally deliberate tempo. And just as length of time in the preparation of a lawsuit usually produces ideas and conceptions, ingenious and otherwise, in direct ratio to time elapsed, so with Engineers. Thus 1968 found the Corps, possibly benefited by 14 years of deliberation, producing a revised plan, referred to here as Design Memorandum No. 4 and frequently as the Fort Worth District modification.
Although appellants advance many arguments, their basic premise is that the Fort Worth District modification constituted a redesign of the project purposes; that the changes in the redesign were "substantial"; that the Corps "did not submit a report by the Chief of Engineers to Congress which is prerequisite to obtaining Congressional authorization under 33 U.S.C. § 701b-8"; and that authorization of the project as presently proposed was never given by Congress. (Appellants' Br. p. 22). Other fundamental inadequacies are found by appellants in the ultimately-filed Environmental Impact Statement (EIS),4 which they assert should have been before the Congress when appropriations for the project were sought.
In short, appellants accuse the Corps of usurping the function and powers of Congress by proceeding with their own plans (the redesign) and by completely ignoring Congress. Appellants are greatly concerned that in addition to the three branches of government, executive, legislative and judicial, there will be created an unwritten, but nevertheless very real, fourth branch, namely, administrative agencies, in this case the Corps.
The trial court had before it the pleadings, affidavits, and memoranda in support of and in opposition to the motion and, after holding a one-day hearing, made findings of fact which, inter alia, included a finding that "since 1962, plans for the San Gabriel River project have undergone significant alterations * * *." ( C, listing 6 alterations), but found that the EIS provided "sufficient information which must be considered pursuant to 42 U.S.C. § 4332, * * *."
As to irreparable injury, the court found that there was some probability of irreparable injury to plaintiffs resulting from the letting of contracts to commence construction with countervailing irreparable injury to defendants at the rate of $49,000 per month increased construction costs. The court properly recognized the four prerequisites for the extraordinary relief of preliminary injunction, namely, (1) substantial likelihood of prevailing on the merits; (2) irreparable injury; (3) public interest to be served by granting a preliminary injunction; and (4) any harm possibly resulting to other parties in the proceeding. The court's conclusion was that "the likelihood that plaintiffs will prevail on the merits is not substantial" and that the Corps' modifications of H. 591 (the Fort Worth District Project) were within the "margin of error" as provided therein. The court, therefore, denied the preliminary injunction and held that the motion therefor was "without merit."
The District Court's opinion was limited to the merits of granting or denying a preliminary injunction. The action for a permanent injunction remains to be tried. Upon that trial the parties will have an opportunity to adduce such relevant facts as they are able to assemble. The District Court upon the argument of the motion indicated his cooperation by saying that "We will grant a hearing on the merits as soon as we possibly can, which will be sometime this Fall." (This date has been delayed by the present appeal but in view of the importance of the issues here presented there is no reason to believe that the same cooperation will not continue to be extended.)
On a trial the fundamental issues can be developed far better than on the basis of a one-day hearing, pleadings and affidavits. The nature and extent of the proof regarded as relevant will be within the discretion of the trial court.
Much guidance is to be found in the trial court's opinion in United States v. 2,606.84 Acres of Land in Tarrant Co., Tex., 309 F.Supp. 887 (N.D.Tex.1969) and in this Court's reversal with respect to 1,207 of those acres. The trial court there had to cope with virtually the same arguments as have been advanced here, in substance, that the Corps (not Congress) "made all the actual decisions from beginning to end"; that the property was not taken for the authorized flood control purposes; and that the project was not within the original Congressional authorization. The trial court, therefore, declared the taking to have been unauthorized and a final judgment was entered.
On appeal (432 F.2d 1286 (5th Cir.1970)), this Court reversed. Significant are various portions of the Court's opinion in that case which bear on the present action, particularly as they relate to the claim of redesign by the Corps (the Fort Worth District modification):
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