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

• Decision Date: 23 October 1979
• Docket Number: 74-1191.,Civ. A. No. 74-1190
• Citation: 480 F. Supp. 980
• Parties: ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al. v. Clifford R. ALEXANDER et al. The IZAAK WALTON LEAGUE OF AMERICA et al. v. Clifford R. ALEXANDER et al.
• Court: U.S. District Court — District of Columbia

480 F. Supp. 980

ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et al. v. Clifford R. ALEXANDER et al.

The IZAAK WALTON LEAGUE OF AMERICA et al. v. Clifford R. ALEXANDER et al.

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

United States District Court, District of Columbia.

October 23, 1979.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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

Fred R. Disheroon, William Hill, Mark Sussman, Dept. of Justice, Washington, D. C., for defendants.

George V. Allen, Jr., Ramsay D. Potts, William P. Barr, Washington, D. C., for intervenor defendant Association for the Improvement of the Mississippi River.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CHARLES R. RICHEY, District Judge.

This case involves the legality of the United States Army Corps of Engineers' ("the Corps") efforts to add a new "step" in the "stairway of the Mississippi." The "stairway" is the series of dams and locks which descend from the headwaters of the Upper Mississippi River and which, together with dams and locks on the Illinois River, comprise the Upper Mississippi River Navigation System; the "step" is Lock and Dam 26, a new dam and a new 1200-foot lock proposed for construction at Alton, Illinois.¹ This structure will replace the present edifice which consists of a dam and two smaller locks. It will stand at the crossroads of the entire Inland Waterways System and serve as the gateway to America's breadbasket.

Plaintiffs, a conglomeration of eighteen midwestern railroads² and three environmental groups,³ assert that further consideration of the Lock and Dam 26 proposal must be halted until defendants⁴ have fulfilled their legal obligations. In essence, plaintiffs allege that defendants have failed to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4331-4347, ("NEPA"), and with their own regulations. The common denominator of plaintiffs' claims is that defendants have acted arbitrarily and capriciously in preparing an environmental impact statement ("EIS"), in selecting a recommended plan, and in deciding to go forward with the proposal. After a review of the evidence presented at a five-day trial, the Court finds that defendants have, to date, not acted arbitrarily or capriciously in the Lock and Dam 26 matter, except with respect to their own regulations. The Court is persuaded that defendants have neglected to conduct a public meeting, pursuant to Corps regulations. Accordingly, the Court shall issue a declaratory judgment to that effect, but it shall deny plaintiffs' petition for injunctive relief.

I. BACKGROUND

The history of this case largely concerns the parties' activities in two forums. First, in the courthouse, legal questions were resolved so as to require a trial, and the record of the Court's activity is vital to an understanding of the issues presented by the parties. Second, in the Corps' offices, the documents which rest at the heart of this suit were prepared and issued to the public; familiarity with these documents is equally vital to an understanding of the issues tried. The Court will briefly summarize the record of the parties' efforts in these forums, providing further background details where appropriate.

A. The Course of This Litigation.

Commercial navigation on the Upper Mississippi River and the Illinois River is made possible through a series of locks and dams known as the Upper Mississippi River Navigation System. The dams in this system control the depth and flow of the rivers, thereby assuring tow barges of navigable waters; the locks, by filling and emptying with water, carry tows, and other craft, up and down the stairway of water formed by the dams. Presently, on the Upper Mississippi River the waterways system consists of a series of twenty-seven locks and dams, extending from St. Paul, Minnesota to a point just south of the mouth of the Missouri River; on the Illinois River, there are seven locks and dams, from Lockport, Illinois to LaGrange, Illinois. Plaintiffs' complaint concerns perhaps the most vital link in this impressive series of structures—the passageway to both the Illinois and Upper Mississippi Rivers. Just fifteen miles south of the juncture of these rivers (and eight miles north of the mouth of the Missouri River) stands Locks and Dam 26. All waterborne commerce shipped between the Upper Mississippi River Navigation System, and the Ohio River, the Lower Mississippi River and the Gulf Intracoastal Waterway must pass through these two locks. Locks and Dam 26, as it now stands, consists of a main lock, which is 600 feet by 110 feet, and an auxiliary lock, 300 feet by 110 feet. Complaining of both the soundness of the dam and the capability of the locks to efficiently handle increasing barge traffic, the Corps has, for the last eleven years, sought to cure these alleged defects by constructing a new lock and dam. Now, with the authorization of Congress, see Act of October 21, 1978, Pub.L. No. 95-502, 92 Stat. 1693 ("Public Law No. 95-502"), the Corps plans to replace this entire structure with a new dam and a single 1200-foot lock located two miles downstream. A brief account of this decade-long effort is helpful to an understanding of this Court's prior decisions.

The replacement project sought by the Corps was originally recommended in 1968 by the St. Louis District Engineer; this recommendation was for a new dam and two 1200-foot locks two miles downstream of the present structure. A year later, the Board of Engineers for Rivers and Harbors recommended immediate implementation of the plan. The Secretary of the Army, acting according to his perceived authority under section 6 of the Rivers and Harbors Act of 1909, 33 U.S.C. § 5, approved the project and, in fiscal year 1970, Congress appropriated funds for the design of the project.

On August 6, 1974, three environmental organizations and a host of midwestern railroads filed separate suits in this Court seeking to prevent the initiation of construction on the two-lock project. That same day, Judge Corcoran issued a temporary restraining order prohibiting the letting of bids for the proposed Locks and Dam 26. One month later, this Court issued a preliminary injunction halting all further activity on the project. Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974). In issuing the injunction, the Court ruled that the proposed locks and dam were a new structure, rather than a rebuilt one, and as a result, congressional authorization under Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, was a prerequisite to the commencement of the Corps' work. Id. at 616-61F. The Court found a likelihood that plaintiffs' would prevail on their claim that defendants had violated NEPA by not preparing a detailed statement which adequately discussed the systemic impact of the two-lock proposal and reasonable alternatives to the plan. Id. at 620-623.

After issuance of the injunction, the Corps restudied the original proposal for Locks and Dam 26 and decided to comply with the Court's decree. In August, 1975, the District Engineer in St. Louis, after preparing a draft supplemental EIS and updating the Corps' economic analysis, recommended a project identical in scope to the original plan. The Board of Engineers for Rivers and Harbors,⁵ however, reviewed this proposal and recommended limiting its scope to a new dam and a single 110-foot by 1200-foot main lock, with provisions for adding a second lock after gathering certain environmental and economic data. In March, 1976, the Chief of Engineers issued his report to the Secretary of the Army substantially adopting the Board's recommendations. Upon receipt of the Chief's recommendation, the Secretary of the Army terminated his approval of the pending two-lock proposal. Finally, on August 4, 1976, the Secretary formally recommended to Congress that it authorize the construction of a replacement dam and 1200-foot lock and that it not authorize a second lock until an interagency study indicated that one should be constructed. "Letter of Transmittal," Final EIS at v. A proposed bill and a final environmental impact statement accompanied the Secretary's recommendation.

While Congress took up consideration of the Secretary's proposal, the parties renewed their efforts in this Court. In an opinion dated May 2, 1977, the Court found that the Secretary's withdrawal of approval from the Locks and Dam 26 project removed the possibility of harm to plaintiffs; accordingly, it dissolved the outstanding injunction. Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 431 F.Supp. 722, 725 (D.D.C.1977). The Court also reviewed plaintiffs' standing to seek relief while congressional action on the new project was pending. First, the Court recognized a private right of action to enforce the requirement established in section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), that an EIS accompany proposals for legislative action. Id. at 725-729. Second, it held that plaintiffs possessed standing to enforce this right and that their claims presented a justiciable case. Id. at 729-730. Later, the Court directed the parties to address the issue of the proposal before Congress; on November 29, 1977, the Court found that there remained before Congress a "proposal for legislation" by the executive branch with respect to Lock and Dam 26. Thus, the stage was set for continued litigation.

The parties' cross-motions for summary judgment were the next matters for judicial review. Plaintiffs' motion sought a declaratory judgment that the Corps' Final EIS failed to comply with NEPA and that defendants' decision to propose legislation for the new project was arbitrary and capricious in light of the project's "true" costs and benefits. The Court denied plaintiffs' motion because it found material facts in dispute regarding the systemic impact of the project,...