489 F.2d 567 (5th Cir. 1974), 73-2487, Canal Authority of State of Florida v. Callaway

Docket Nº73-2487.
Citation489 F.2d 567
Party NameThe CANAL AUTHORITY OF the STATE OF FLORIDA et al., Plaintiffs-Appellees, v. Howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants. The CROSS-FLORIDA CANAL ASSOCIATION et al., Plaintiffs-Appellees, v. howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants. Eleanor H. MILLER et al., Pl
Case DateFebruary 15, 1974
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 567

489 F.2d 567 (5th Cir. 1974)

The CANAL AUTHORITY OF the STATE OF FLORIDA et al., Plaintiffs-Appellees,


Howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants.

The CROSS-FLORIDA CANAL ASSOCIATION et al., Plaintiffs-Appellees,


howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants.

Eleanor H. MILLER et al., Plaintiffs-Appellees,


Avery S. FULLERTON et al., Defendants-Appellants.

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants,


CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants-Appellants.

J. G. PERKO, Plaintiff-Appellee,


The CANAL AUTHORITY OF the STATE OF FLORIDA, etc., et al., Defendants-Appellants.

No. 73-2487.

United States Court of Appeals, Fifth Circuit.

February 15, 1974

Page 568

[Copyrighted Material Omitted]

Page 569

Jacques B. Gelin, Wallace H. Johnson, Edmund B. Clark, Dept. of Justice, Washington, D.C., Frederick L. Miller, Dept. of Justice, Div. of Lands & Nat. Resources, Washington, D.C., John L. Briggs, U.S. Atty., John D. Roberts, Asst. U.S. Atty., Jacksonville, Fla., for all fed. defendants.

Jon T. Brown, Wallace L. Duncan, Washington, D.C., Edward Lee Rogers, Gen. Counsel, Environmental Defense Fund, Inc., East Setauket, N.Y., for Env. Defense and others.

Ralph E. Elliott, Jr., Frank C. Decker, Jacksonville, Fla., John H. Gullett, Washington, D.C., for Canal Authority and others.

Willard Ayres, Ocala, Fla., for Canal Authority of State of Fla.

David U. Tumin, Daniel U. Livermore, Jr., Jacksonville, Fla., for Jacksonville Port Authority.

A. W. Nichols, III, Ronald E. Clark, Palatka, Fla., for Eleanor H. Miller and others.

William L. Eagan, Orlando, Fla., for Perko.

Tracy Danese, Jacksonville, Fla., for Cross-Fla. Assoc. and others.

Alan B. Fields, Jr., Palatka, Fla., for Eleanor H. Miller and others.


THORNBERRY, Circuit Judge:

This is an appeal from the denial of defendants' motion to modify a preliminary

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injunction which prevents defendants from reducing the water level of Lake Ocklawaha below eighteen feet above mean sea level (m.s.l.). We find that the district court applied the wrong legal standards in considering the motion to modify, and we remand for further consideration under the proper standards.

Factual Setting

The Ocklawaha River has its source in several large lakes of the central peninsula of Florida. It flows northward for sixty miles and enters the St. Johns River eight miles below Lake George. Its waters run clear, although stained by acids from the bark and leaves of the dense tree swamp through which it meanders. Its tree swamp ecology is rich, supporting a much more abundant and varied wildlife population than the adjacent pine islands. It is, as President Nixon described it, '(a) natural treasure . . . a uniquely beautiful, semi-tropical stream, one of a very few of its kind in the United States . . ..' 1

The trees along the Ocklawaha are the cornerstone of the area's ecology. Their crowns close the canopy of the forest, creating the necessary balance of light, temperature, humidity and wind. They and their associated understory vegetation act as a nutrient and a biological filter in cleansing the river in time of flood. They provide food and habitat for birds, epiphytic plants and wildlife. Leaf fall from the natural forest overstory adjacent to the river is an important component of the allochthonous energy inputs required for maintenance of the high productivity of the detritusbased river system. The trees provide the seeds necessary for regeneration of the forest. The loss of these trees would drastically change the character of the area, and, once lost, they could not be replaced by new growth for decades.

As part of the Cross Florida Barge Canal project, Rodman Dam was built on the Ocklawaha River. After the dam's completion in 1968, the waters it impounded created a lake approximately sixteen miles long, flooding some 13,000 acres of partially cleared land in the Ocklawaha Valley. A number of the trees in this area had previously been cleared by being crushed into the swamp floor. However, approximately 1135 acres of large hardwood trees, many of which had lined the course of the Ocklawaha River prior to the inundation, were left standing to be flooded by the lake, primarily so as to serve as a fish habitat. The flooding is progressively killing off the remaining trees. The preservation of the surviving trees in this presently standing timber was the objective of the motion denied by the district court.

History of the Litigation

In September, 1969, the Environmental Defense Fund, joined by the Florida Defenders of the Environment and several individuals, filed suit in the United States District Court for the District of Columbia to halt construction of the Cross Florida Barge Canal project. After a hearing, the district court denied the defendants' motion to dismiss and orally granted the plaintiffs' motion for a preliminary injunction to stop certain aspects of the construction. Before these orders were entered the President of the United States, pursuant to the advice of the Council on Environmental Quality, ordered the suspension of further construction of the canal. 2 The Canal

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Authority of the State of Florida, the local sponsor of the project, then moved to intervene in the District of Columbia action alleging that as a result of the President's order the federal defendants were no longer able to defend the canal project.

Prior to the granting of the motion, the Canal Authority filed a second action in the Middle District of Florida against substantially the same defendants, alleging wrongful termination of the project. Later, other similar suits were filed by local governmental and individual interests. On July 27, 1971, the Judicial Panel on Multidistrict Litigation ordered the actions consolidated and transferred to the Middle District of Florida, to be heard before Senior Circuit Judge Harvey M. Johnsen.

Prior to the consolidation the United States Forest Service recommended that Lake Ocklawaha be drained, so as to preserve as many trees as possible. The Canal Authority, as intervenor in the District of Columbia litigation, unsuccessfully sought a preliminary injunction to prevent the drawdown. Such an injunction was granted, however, in the case brought in the Middle District of Florida by the Cross-Florida Canal Association. After the consolidation, Judge Johnsen considered afresh the question of a preliminary injunction to prevent the proposed drawdown and granted it on September 29, 1971, after three days of evidentiary hearing and argument. The injunction order specifically invited subsequent applications for 'vacative or modificatory' relief from the preliminary injunction if facts could be developed to justify such relief.

After several unsuccessful attempts to have the injunction modified, the joint appellants moved again for modification on June 1, 1972. This motion was based on extensive scientific investigations and studies conducted by an interagency task force during the months of April and May, 1972. The task force was composed of more than fifty experts in the fields of ecology, forestry, plant physiology and pathology, aquatic weeds, recreation, fisheries, biology, photogrammetry, hydrology, biochemistry, engineering, agronomy, and mathematics. Following its investigations, the task force recommended that Lake Ocklawaha be lowered immediately to an elevation of thirteen feet m.s.l. to preserve the large number of living trees threatened with imminent death so as to maintain all future options for ecologically sound use of the area.

After four days of hearings, on July 21, 1972, the district court granted the motion of the joint appellants for a modification of the temporary injunction, allowing the lake to be drawn down from eighteen feet m.s.l. to thirteen feet m.s.l. for the balance of the 1972 growing season, i.e., until December 1, 1972. The court noted that

the array of the task force personnel and its expert consultants is so formidable and the strength of their opinion

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(is) such that the court does not feel entitled to allow such layman's doubt as it may have to control against the strong body of this expert opinion. Further, the difference in the extent of the methods and factors involved, as between these experts and those of the Canal Authority, seems to the court to require the according of a more persuasive general weight to the opinion of the Federal defendants' experts.

The evidence adduced in securing a temporary drawdown had been gathered while the trees were flooded. During the drawdown period, these scientists were able to make far more precise analyses of both the flooding effect and the trees' growth process. On November 27, 1972, the federal defendants moved to extend the drawdown period until a final decision had been made about the future of the area. The court twice extended the deadline for reflooding in order to allow all parties to file additional pleadings and affidavits. On December 8, 1972, the federal defendants filed a supplemental memorandum, together with voluminous affidavits supporting their position. A central finding was that the tree roots in the area had no dormant period. Although some trees lose their leaves during the winter, root growth activity continues. Accordingly, earlier projections that recommended limiting a drawdown to the so called 'growth season' were proved The only recommended scientific solution to save the trees was to keep the lake's waters at the low level. Otherwise,...

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