655 F.2d 346 (D.C. Cir. 1981), 79-2529, Izaak Walton League of America v. Marsh

Docket Nº:79-2529, 79-2530, 80-1017 and 80-1024.
Citation:655 F.2d 346
Party Name:U.S.App.D.C. 233, 11 Envtl. The IZAAK WALTON LEAGUE OF AMERICA, et al., Appellants, v. John O. MARSH, Jr., Secretary, Department of the Army, et al. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellants, v. John O. MARSH, Jr., Secretary, Department of the Army, et al. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al. v. John
Case Date:April 24, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 346

655 F.2d 346 (D.C. Cir. 1981)

U.S.App.D.C. 233,

11 Envtl.

The IZAAK WALTON LEAGUE OF AMERICA, et al., Appellants,

v.

John O. MARSH, Jr., Secretary, Department of the Army, et al.

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Appellants,

v.

John O. MARSH, Jr., Secretary, Department of the Army, et al.

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al.

v.

John O. MARSH, Jr., Secretary, Department of the Army, et

al. Association for Improvement of the Mississippi

River, Appellant.

IZAAK WALTON LEAGUE OF AMERICA, et al.

v.

John O. MARSH, Jr., Secretary, Department of the Army, et al.

Association for Improvement of the Mississippi River, Appellant.

Nos. 79-2529, 79-2530, 80-1017 and 80-1024.

United States Court of Appeals, District of Columbia Circuit

April 24, 1981

Argued Jan. 16, 1981.

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[Copyrighted Material Omitted]

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Joseph V. Karaganis, Chicago, Ill., with whom Sanford R. Gail, A. Bruce White, and Joseph D. Feeney, Chicago, Ill., were on the brief, for Izaak Walton League of America, et al., and Atchison, Topeka and Santa Fe Railway Co., et al., appellants in Nos. 79-2529 and 79-2530 and appellees in Nos. 80-1017 and 80-1024. Jon T. Brown, Washington, D.C., entered an appearance for Atchison, Topeka and Santa Fe Railway Co., et al., in Nos. 80-1017 and 80-1024.

George V. Allen, Jr., Washington, D.C., with whom Ramsay D. Potts and William P. Barr, Washington, D.C., were on the brief, for Association for Improvement of the Mississippi River, appellant in Nos. 80-1017 and 80-1024 and appellee in Nos. 79-2529 and 79-2530.

Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., with whom Sanford of Sagalkin, Deputy Asst. Atty. Gen., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., were on the brief, for the federal appellees. James W. Moorman, Atty., Dept. of Justice, Washington, D.C., entered an appearance for the federal appellees.

Before WRIGHT and ROBB, Circuit Judges, and PENN, [*] District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Commercial navigation on the Upper Mississippi River and the Illinois River is made possible through a series of 27 locks and dams known as the Upper Mississippi River Navigation System. Locks and Dam 26, which is located on the Upper Mississippi near Alton, Illinois, is a vital link in this system. Because it stands just south of the juncture of the Illinois and Mississippi Rivers, and just north of the juncture of the Missouri and Mississippi Rivers, it serves as a funnel through which all traffic along these waterways must pass. 1 Almost 13

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years ago the Army Corps of Engineers proposed that the existing structure be replaced with a new lock and dam. The Corps believed that a new facility was necessary because the existing structure was deteriorating and lacked sufficient capacity to accommodate increasing barge traffic. After years of planning and several vigorously fought court battles, the Corps obtained legislative approval for the project in 1978, when Congress enacted a bill specifically authorizing construction of the new facility. Act of Congress, October 21, 1978, Pub.L.No. 95-502, 92 Stat. 1693 (P.L. 95-502). The Corps began to make construction plans shortly thereafter. 2

Before the Corps could proceed with construction of the facility, appellants, 18 midwestern railroads 3 and three environmental groups, 4 renewed an action against the Government 5 that they had originally commenced in 1974. In their amended complaint they sought to halt further work on the project. 6 The Association for the Improvement of the Mississippi River (AIMR) intervened in the District Court on the side of the Government. Although appellants raised a variety of claims, their objections were, in essence, that: (1) the cost-benefit analysis prepared by the Corps prior to receiving congressional approval of the project violated the Water Resources Planning Act of 1965, 42 U.S.C. § 1962 et seq. (1976), various other statutes, and the Corps' own regulations, 33 C.F.R. Parts 290-295 (1979) 7; (2) the Corps failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1976) 8; and (3) the planning conducted by the Corps after receiving congressional authorization did not comply with various statutes and Corps regulations. 9 The District Court dismissed the first set of claims for lack of jurisdiction. Atchison, Topeka & Santa Fe R. Co. v. Callaway (Atchison IV), 480 F.Supp. 972 (D.D.C.1979). After conducting a short trial it concluded that the Corps had adequately fulfilled its obligations under NEPA. Atchison, Topeka & Santa Fe R. Co. v. Alexander (Atchison V), 480 F.Supp. 980, 994-1002 (D.D.C.1979). As for the arguments regarding post-authorization planning, the District Court found

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that most of the appellants' claims lacked merit. Id. at 987. It concluded, however, that the Corps violated its own regulations when it failed to hold a public meeting to discuss implementation of the project. Id. at 993-994. It decided not to grant an injunction requiring the Corps to hold such a meeting. Id. at 1002-1003.

In this appeal the appellant railroads and environmental groups seek review of the District Court's decision. In general we are satisfied with the District Court's disposition of the case. The District Court was clearly correct in holding that it was without jurisdiction to review claims that the cost-benefit analysis prepared by the Corps failed to comply with the Water Resources Planning Act and various other statutes and regulations. We also agree that the Corps' Final Environmental Impact Statement (FEIS) fulfilled its obligations under NEPA. Finally, we agree that the Corps should have held a public meeting after receiving congressional authorization so that it could solicit comments on implementation of the project. We disagree, however, with the District Court's decision not to require such a meeting. Thus we affirm in part and reverse in part, remanding so that the District Court may amend its judgment to require the Corps to hold a public meeting. This meeting should be held within 30 days of the time the judgment, as amended, becomes final. To ensure that the meeting is not an empty formality, the District Court should also enter an order requiring the Corps to respond in writing to the objections made at the meeting. This response should be completed no later than 30 days after the meeting is held.

I. BACKGROUND

The Corps of Engineers first considered replacing existing Locks and Dam 26 with a new structure in the mid-1960's, when it became concerned about two problems: lack of capacity and structural instability. FEIS Vol. 1 at 1-2. The existing facility consists of a main lock, which is 600 feet long, and an auxiliary lock, which is 360 feet long. It has a maximum annual capacity of 73 million tons. Because the waterways to the north have a capacity of 108 million tons per year, and the waterways to the south have a capacity of 148 million tons, the Corps feared that the existing structure would act as a bottleneck that would restrict full use of the waterways system and delay shipping. Id. at ii, 1-2. These fears were apparently justified. Barges must now wait an average of at least ten hours to pass through the locks. Id. at 2; Board of Engineers for Rivers and Harbors Report (BERH Rep.) at 16 (Plaintiffs' Exhibit (PX) 427). Locks and Dam 26, which is founded on wooden piles driven into sand, also has a history of structural problems, including settlement, underseepage, and loss of foundation material. Physical deterioration has led to increased maintenance and operation costs, and may ultimately result in complete breakdown of the facility. FEIS Vol. 1 at 2, 6-11; BERH Rep. at i, 16-18.

Identifying the problems that afflict the current structure has proven to be far easier than finding an acceptable solution. Below we recount the long and complicated history of the Corps' efforts to replace Locks and Dam 26.

A. Pre-Authorization Planning

The first proposal to replace existing Locks and Dam 26 was made in 1968, when the Corps' St. Louis District Engineer recommended that a new dam and two 1,200-foot locks be constructed two miles downstream from the existing structure. This recommendation was reviewed by the Board of Engineers for River and Harbor (BERH), which was established by Congress to provide an independent review of water-related projects. 10 The BERH submitted a

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report to the Chief of the Corps of Engineers in which it approved the project and recommended immediate implementation. The Chief of Engineers then sent a report to the Secretary of the Army, in which he asked the Secretary to approve construction. The Secretary granted approval, acting pursuant to Section 6 of the Rivers and Harbors Act of 1909, 33 U.S.C. § 5 (1976), which authorizes him to order maintenance and repair of existing navigation facilities. Between 1968 and 1974 the Corps prepared a series of design memoranda, see Design Memoranda (DM) (Defendants' Exhibit (DX) 33-43), and an Environmental Impact Statement (EIS) for this two-lock project, see EIS (PX 507). Congress appropriated construction funds in 1974. See Atchison V, supra, 480 F.Supp. at 984-985.

In August 1974, before construction of the replacement facility could start, the same environmental organizations and midwestern railroads that are appellants here filed suits in the District Court seeking to enjoin the project. 11 The District Court immediately granted a temporary restraining order that halted bidding on the construction. Shortly thereafter the court issued a preliminary injunction stopping all further...

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