Atchison, T. & SF Ry. Co. v. Callaway

• Decision Date: 02 May 1977
• Docket Number: Civ. A. No. 74-1190,74-1191.
• Citation: 431 F. Supp. 722
• Parties: ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants. IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.
• Court: U.S. District Court — District of Columbia

431 F. Supp. 722

ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.

IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.

Civ. A. Nos. 74-1190, 74-1191.

United States District Court, District of Columbia.

May 2, 1977.

Joseph V. Karaganis, Sanford R. Gail, Joseph D. Feeney, Stuart E. Vaughn, Chicago, Ill., Jon T. Brown, Washington, D. C., for plaintiffs.

Richard J. Boyd, Asst. Atty. Gen., State of Wis., Madison, Wis., for plaintiff-intervenor, State of Wis.

Fred R. Disheroon, Irwin L. Schroeder, Jr., Dept. of Justice, Washington, D. C., for defendants.

Ramsay D. Potts, George V. Allen, Jr., Barry M. Smoler, Washington, D. C., for defendant-intervenor, Ass'n for the Improvement of the Mississippi River.

David R. Melincoff, Washington, D. C., for defendant-intervenors, Water Resources Congress, Ohio Valley Improvement Ass'n, Inc., and Upper Mississippi Waterway Ass'n, Inc.

James B. Early, Sp. Asst. Atty. Gen., State of Minn., Roseville, Minn., for amicus curiae, State of Minn.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. Introduction

This case is before the Court on defendants' and defendant-intervenors motions to dissolve the preliminary injunction and to dismiss. The Court also has before it plaintiffs' motion for summary judgment which, inter alia (see note 3 infra), seeks a declaratory judgment that the Corps of Engineers' final environmental impact statement fails to comply with the requirements of section 102(2)(C) of the National Environmental Policy Act NEPA, 42 U.S.C. § 4332(2)(C). As hereinafter set forth, the Court concludes that since construction on the project here in issue is neither imminent nor a reasonably foreseeable likelihood, the Court's outstanding preliminary injunction is appropriately dissolved, without prejudice to a renewed request by plaintiffs for the same or similar relief in the future when and if such relief becomes appropriate. The Court further concludes that plaintiffs have a right of action and standing to enforce section 102(2)(C)'s EIS requirement for legislative proposals, and the "effectiveness" of the declaratory relief sought by plaintiffs, if granted by the Court, is sufficient to render this case justiciable. Accordingly, the Court will grant the motions to dissolve the preliminary injunction, but will deny the motions to dismiss and will therefore direct the defendants and defendant-intervenors to respond to plaintiffs' pending motion for summary judgment.

II. Background

The present posture of this case is as follows: On September 6, 1974, this Court held that plaintiffs had demonstrated that they were likely to prevail at trial in their contentions that (1) the then proposed Locks and Dam 26 project was required to be authorized by Congress pursuant to 33 U.S.C. § 401 (1970), and Congress had not authorized the building of the proposed Locks and Dam 26, and (2) the defendants had not complied with section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). Atchison, Topeka and Santa Fe R. R. Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974). Accordingly, the Court issued a preliminary injunction restraining defendants from constructing the proposed Locks and Dam 26 until defendants complied with 33 U.S.C. § 401 and NEPA.

Subsequent to the issuance of that preliminary injunction, the defendants restudied the original proposal for Locks and Dam 26. In August 1975, the District Engineer in St. Louis completed a draft supplemental EIS and an updated economic analysis. He recommended that the present Locks and Dam 26 be replaced with a new dam containing two locks, each 110 feet wide and 1,200 feet long, at a site approximately two miles downstream from the present location. After the Lower Mississippi Valley Division Engineer concurred, the Chief of Engineers asked the Board of Engineers for Rivers and Harbors to review all actions associated with Locks and Dam 26. The Board recommended, inter alia:

(1) That approval be obtained from Congress to proceed immediately toward construction of a new dam and 110-foot by 1,200-foot main lock at a location approximately two miles downstream of the existing Locks and Dam 26.

(2) That the operational need and economic justification of a second lock be recognized at this time, and that the design and construction of the dam provide for future expansion.

(3) That ... additional economic and environmental studies ... be undertaken immediately, and that the findings and recommendations concerning a second lock be forwarded to Congress for approval.

Report of Board of Engineers for Rivers and Harbors, at vi (February 1976).

On March 15, 1976, the Chief of Engineers issued his report to the Secretary of the Army with regard to Locks and Dam 26. This report substantially adopted the recommendations of the Board of Engineers and was accompanied by a draft EIS. The revised draft EIS and an economic formulation were then circulated to interested states, federal agencies, and others for comment.

On April 22, 1976, after receiving the report of the Chief of Engineers, Secretary of the Army Martin R. Hoffman concluded that in light of the

proposed report recommending congressional authorization of a different project, continuation of the prior approval is unnecessary and also may be the cause of some misinterpretation. Accordingly I hereby terminate, effective this date, the above cited approval to construct the replacement project for Locks and Dam 26.

I await the final report on the replacement project and the results of the full review it will have undergone. I have informed the appropriate Committee Chairman of this action and of my intention to submit my recommendations, whatever they may be, to Congress for its consideration.

Memorandum from the Secretary of the Army to the Chief of Engineers (April 22, 1976).

Finally, on August 24, 1976, Secretary Hoffman formally recommended to Congress in a "Letter of Transmittal" that it "authorize the construction of a replacement dam and 1200-foot lock" and that it not authorize an auxiliary lock "until such time as the interagency study indicates that such lock should be constructed." Along with the Letter of Transmittal, Secretary Hoffman forwarded to Congress proposed legislation, which would implement his recommendations, and a Final Environmental Impact Statement.

III. In Light Of Secretary Hoffman's Withdrawal Of Authorization For The Original Locks And Dam 26 Project And His Submission Of Authorizing Legislation To Congress For The Revised Lock And Dam 26 Project, The Court Will Dissolve Its Preliminary Injunction

The preliminary injunction issued by this Court in September 1974 restrained the defendants from commencing construction on the proposed Locks and Dam 26 project until they had complied with the applicable federal laws. The proposed project then in issue had been authorized by the Secretary of the Army; however, Secretary Hoffman expressly terminated that construction authority in April 1976. Thus, the original proposal is no longer viable. The new Lock and Dam 26 proposal has been submitted to Congress for approval,¹ and there appears to the Court to be no likelihood of any construction on the proposal until Congress enacts legislation authorizing such construction. Therefore, the preliminary injunction restraining construction is entirely unnecessary to ensure that plaintiffs do not suffer irreparable injury.

Under these circumstances, since there is no imminence, or even a reasonably foreseeable likelihood, of construction, cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 589, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961), the Court concludes that it would be an appropriate exercise of its equity jurisdiction to dissolve the existing preliminary injunction restraining construction. "There is . . . no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have arisen." System Federation No. 91, Ry. Employees' Dept. v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961). See Consolidated Edison Co. v. FPC, 167 U.S.App.D.C. 134, 511 F.2d 372, 378 (1974).

Of course, the dissolution of this preliminary injunction will be without prejudice to plaintiffs should they seek the same or similar relief in the future when and if such relief becomes appropriate.

IV. The Court Will Deny Defendants' Motions To Dismiss: Section 102(2)(C) Requires The Corps Of Engineers To Submit An Environmental Impact Statement To Congress With Its Proposal For Authorizing Legislation For The Construction Of Lock And Dam 26, And Plaintiffs Have A Right Of Action And Standing To Enforce That Requirement, And Their Claim Is Justiciable

Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), "directs that, to the fullest extent possible . . . all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment" an environmental impact statement. To comply with this mandate and with the Corp of Engineers' own implementing regulation, which specifically requires the preparation of an EIS for "recommendations or reports to the Congress for legislation affecting Corps of Engineers programs including proposals to authorize projects (survey, review, and authorization reports) and other legislation, exclusive of appropriations," 33 C.F.R. § 209.410(e)(1) (1976)²; see also 40 C.F.R. §§ 1500.5(a)(1), 1500.12 (1976), defendants prepared a final EIS which they submitted to Congress along with the proposed legislation. Plaintiffs now seek a declaratory judgment that this final EIS is inadequate and does not satisfy the requirements of section 102(2)(C).³

Defendants argue that...