Sierra Club v. Froehlke, 75-1252

Citation534 F.2d 1289
Decision Date23 April 1976
Docket NumberNo. 75-1252,75-1252
Parties, 6 Envtl. L. Rep. 20,448 SIERRA CLUB, a corporation, et al., Appellants, v. Robert F. FROEHLKE, Secretary of the Army, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Alan C. Kohn, St. Louis, Mo., for appellants; Cynthia C. Bottini and Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., on brief.

Michael A. McCord, Atty., Dept. of Justice, Washington, D. C., for appellees; Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, George R. Hyde, Attys., Dept. of Justice, Washington, D. C., and Donald J. Stohr, U. S. Atty., and David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., on brief.

John W. Howald and James E. Bowles, Hillsboro, Mo., for amicus curiae, Meramec Basin Assn.

Robert J. Golten and Oliver A. Houck, Attys., Natl. Wildlife Federation, Washington, D. C., for amicus curiae, Natl. Wildlife Federation.

Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, * Senior District Judge.

TALBOT SMITH, Senior District Judge.

This case is an appeal from a district court judgment denying injunctive and declaratory relief. The plaintiffs-appellants, Sierra Club and several named individuals, seek to enjoin construction of the Meramec Park Lake Dam and any other dams planned in the Meramec Basin. The District Court denied such relief. We affirm.

The original complaint in this action was filed on September 25, 1972 to halt construction of the Meramec Park Dam and any other proposed dams in the Meramec Basin. The plaintiffs included Sierra Club, a nonprofit California corporation, the Ozark Chapter of which includes the State of Missouri. It has headquarters in St. Louis. Sierra Club is an organization dedicated to the preservation and enjoyment of natural resources. Its members use the Meramec Basin, specifically the Meramec Park Lake Project area, for recreational, scientific, and educational pursuits on an individual and group basis.

There are also four individual plaintiffs who own land in the Meramec Basin. Plaintiffs Clark and Kathryn Springer own land two miles upstream from the Meramec Park Dam site which will be acquired either by voluntary sale or eminent domain proceedings. Plaintiff Howard O. Patten likewise owns land, situated at the juncture of the Huzzah and Meramec Rivers, scheduled for purchase or condemnation. Finally Plaintiff Olga Smith owns land on the Meramec River. Although her land is not threatened with condemnation in order to build the Meramec Park Lake Dam, her land will be flooded if the Virginia Mines Dam is built as is called for by phase two of the overall Meramec Basin Plan. (The construction of Meramec Park Lake Dam is phase one of a three part plan.)

The three defendants were all officers of the United States Army when this action was filed. Robert F. Froehlke was Secretary of the Army; Lieutenant General Frederick J. Clarke was Chief of the Army Corps of Engineers; and Colonel Guy E. Jester was District Engineer of United States Army Engineer District, St. Louis, Missouri. In those positions, the three defendants were responsible for the construction of the Meramec Park Lake Dam and for the overall Meramec Basin Plan.

The Meramec Basin Association was granted leave to file briefs as amicus curiae both at trial and on appeal in support of construction of the Meramec Park Lake Dam.

The original complaint alleged violations of the National Environmental Policy Act of 1969 1 (hereafter NEPA), the Flood Controls Acts of 1936, 2 1938, 3 and 1966, 4 and the Fish and Game Wildlife Coordination Act of 1958. 5 On December 29, 1972, the plaintiffs moved for a summary judgment based on the inadequacy of the original environmental impact statement (hereafter EIS), dated November 6, 1970. The motion was denied without prejudice on the representation that a revised environmental impact statement was being prepared. The final statement, filed on September 23, 1973, is a four volume work of nine sections which greatly expanded the detail of discussion contained in the original impact statement.

On December 23, 1973, Sierra Club amended its complaint to allege, in addition to its previous claims, violations of the Federal Water Pollution Control Act of 1972, 6 the Federal Water Resources Planning Act of 1965, 7 and the Federal Water Project Recreation Act of 1965. 8 Finally, on September 20, 1974 Sierra Club was granted leave to amend its amended complaint to allege violations of the Endangered Species Act of 1973. 9

After a two and one-half day trial, the district court, 10 in an order and opinion entered March 19, 1975, found against the plaintiffs on all counts and denied their request for declaratory and injunctive relief, holding in part:

In conclusion, this Court is of the opinion that it can have no other holding, but to enter judgment for the defendants. In every instance of alleged statutory violation, or other alleged failings of the defendants with regards to the Meramec Park Reservoir, the defendants have carried the burden of proof or have indicated to this Court's satisfaction that no violation has occurred. 11

This appeal followed. On appeal, Sierra Club has confined its claims of error to alleged violations of NEPA and the Endangered Species Act of 1973. It argues that the NEPA is being violated in that the revised EIS was inadequate in its discussion of alternatives to the proposed project, and in its failure to consider the entire Meramec Basin Plan and not simply the Meramec Park Lake Project. Moreover, with respect to the Indiana bat, an endangered species, it is charged not only that the EIS discussion was inadequate, but that there were as well violations of the Endangered Species Act of 1973. The decision to proceed with the dam construction is therefore argued to us to be arbitrary and capricious.

The proposed Meramec Park Lake Dam will be located in the Meramec Basin, encompassing a watershed of some 4000 square miles. Generally speaking, it is in an area running southwest from St. Louis for approximately 120 miles. At the present time there is no major dam or reservoir on the river, or its principal tributaries. It comprises areas of great natural beauty, of rugged terrain, as well as of pastoral sites, and of natural caves and springs. But there is another side to the coin. The flow of the river is extremely variable. During drought periods the streams in the basin do not carry enough water to provide adequate dilution of the wastes that empty into them. 12 At flood periods it is highly destructive. Major floods have occurred on the average of about once every six years, although portions of the bottom lands have experienced flooding almost annually. "Rural slum" areas are prevalent in some of the river stretches. There is a need to supply the recreational needs of the St. Louis Metropolitan Area. All of these considerations, and more, we find discussed in great detail in the EIS. It is obvious, and has been for years, that the problems presented demand solution, although it is equally obvious that for every weight on one side of the scales there is at least some counter-weight.

The above-described project is part of a comprehensive plan for flood control in the Upper Mississippi River Basin first authorized by Congress in the River and Harbor Flood Control Act of 1938. 13 A detailed plan was prepared and submitted on the Meramec Basin in 1949, but was deferred due to a lack of general acceptance. In 1958, public interest led to a review and updating of the 1949 plan by the Corps of Engineers, culminating in the authorization by Congress of a comprehensive plan for the Meramec Basin in the Flood Control Act of 1966. 14

In addition to the Meramec Park and Union reservoirs, which were first authorized in 1938, the 1966 plan authorized three additional reservoirs, Pine Ford, Irondale, and I-38 as well as 19 angler-use sites, all of which are to be located in the Meramec Basin. The Meramec Park Lake will be formed by the construction of an earth and rock-fill dam on the Meramec River. The dam site will be located 108.7 miles above the junction of the Meramec and Mississippi Rivers and two miles east of Sullivan, Missouri. The water impoundment created by the dam will be known as the Meramec Park Lake. The lake will have a capacity of one million acre feet and will have a surface area of 12,600 acres at normal pool (675 feet above sea level) and 23,000 acres at flood pool (709 feet above sea level).

The Meramec Park Lake Project has been in the real estate acquisition category since 1968. Construction was begun in July 1974, and the construction of an administrative building, an overlook, and access road to the site is now approximately 90 per cent complete. The project is scheduled to be complete and operational by June of 1980. The primary benefits of the project are expected to be flood control, water supply, water quality (pollution abatement), recreation, fish and wildlife, and navigation.

The first phase of the overall Meramec Basin Plan calls for dams on the Bourbeuse and Big Rivers in addition to that on the Meramec River. The Union Dam is projected for the Bourbeuse River, approximately twenty miles downstream from the Meramec Park Lake Dam. Further upstream on the Bourbeuse is to be located the I-38 Lake and Dam. On the Big River, the Irondale Lake and Dam are planned, and further downstream the Pine Ford Lake and Dam. The Bourbeuse and Big River both flow into the Meramec River southwest of St. Louis, and the Meramec Dam, Union and Pine Ford Dams will act together as a system to prevent flood damage in the lower Meramec Basin area. The situation with respect to the funding, the precise locations, and the specific details of dams other than the Meramec Park Lake Dam will be discussed hereinafter.

As to compliance with NEPA, the plaintiffs assert that the EIS "Contained an Inadequate Discussion of the...

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