Akers v. Resor

• Decision Date: 28 March 1972
• Docket Number: Civ. A. No. C-70-349.
• Citation: 339 F. Supp. 1375
• Court: U.S. District Court — Western District of Tennessee
• Parties: J. Clark AKERS, III, et al., Plaintiffs, and The National Wildlife Federation and The Tennessee Conservation League, Non-Profit corporations, Plaintiffs-Intervenors, v. Stanley R. RESOR, Individually and as Secretary of the Army, et al., Defendants, and M. V. Williams et al., Intervening Defendants.

339 F. Supp. 1375

J. Clark AKERS, III, et al., Plaintiffs and The National Wildlife Federation and The Tennessee Conservation League, Non-Profit corporations, Plaintiffs-Intervenors, v. Stanley R. RESOR, Individually and as Secretary of the Army, et al., Defendants and M. V. Williams et al., Intervening Defendants.

Civ. A. No. C-70-349.

United States District Court, W. D. Tennessee, W. D.

March 28, 1972.

Charles H. Warfield, Nashville, Tenn., for plaintiffs.

Charles F. Newman, Memphis, Tenn., for intervening plaintiffs.

Thomas F. Turley, Jr., U. S. Atty., and Kemper B. Durand, Asst. U. S. Atty., Memphis, Tenn., for federal defendants.

Lurton Goodpasture, Asst. Atty. Gen., State of Tenn., and Bart C. Durham, III, Asst. Atty. Gen., Nashville, Tenn., for state defendants.

Barret Ashley, Dyersburg, Tenn., for intervening defendants M. V. Williams and West Tennessee Tributaries Assoc.

E. T. Palmer and M. Watkins Ewell, Jr., Dyersburg, Tenn., for intervening defendant Dyer County Levee & Drainage District No. 1.

Fenner Heathcock, Union City, Tenn., for remainder of intervening defendants (Towns and Cities).

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

This is an action against the Secretary of the Army and others seeking a declaration that the Corps of Engineers, in continuing the project of channel enlargement and realignment of the Obion and Forked Deer rivers in northwest Tennessee, is in violation of certain federal statutes. Plaintiffs also seek injunctive relief. Plaintiffs Akers, Dillon, Tudor and Harwell bring this action in their own behalf and as members of hunting clubs located in the involved area. The National Wildlife Federation and the Tennessee Conservation League have intervened as plaintiffs. Several towns and cities located in the involved area as well as the West Tennessee Tributaries Association and a levee and drainage district have intervened as defendants.¹

We have heretofore denied a motion to dismiss the intervening complaint and motions of plaintiffs and Federal defendants and intervening defendants for summary judgment.

This action was filed in the Middle District of Tennessee (later transferred here) and that Court entered an order which in effect maintained the status quo with respect to work to be done by the Corps of Engineers. Thereafter this Court rescinded that order with the understanding and agreement that the United States Attorney, in representing the Corps, would file a notice of intent to proceed at least 30 days prior to any action being taken by the Corps. The Corps was later allowed to proceed as to one item of the work (referred to in the record as the "Middle City" item, at Dyersburg) since it appeared clear that such work would have no appreciable effect on the ecology of the area. The Corps has since, on October 8, 1971, given notice of intent to proceed with respect to the "Menglewood" item, which caused the Court to hold a pre-trial conference to explore the necessity for a plenary hearing. It was the position of the plaintiffs at the conference that the Corps of Engineers could not proceed with its work in any event until Congress had funded the plan of mitigation tentatively proposed by the Corps² and until the Council on Environmental Quality had responded to the environmental impact statement filed with it by the Corps pursuant to 42 U.S.C.A. § 4332(2) (C). We thereafter concluded and so ruled that the work to be done by the Corps need not await such funding and such response. We then set the case for plenary hearing on April 3, 1972.

Another pre-trial conference was held on March 24, 1972, and it developed that the parties were far apart on the question as to which federal statutes are applicable and on the question as to the proper effect to be given to applicable statutes. It further developed that, because of the difficulty of resolving such problems, the Court could not do so at the conference and therefore continued the conference until March 29, 1972 to give the Court an opportunity in the meantime to consider these questions and make appropriate rulings. Such rulings are necessary before other matters to be disposed of at the conference can be resolved. The purpose of this memorandum decision is to indicate such rulings.

The first statute that plaintiffs contend that the Corps will be violating in proceeding with the enlargement and realignment of the channel of these rivers is 33 U.S.C.A. § 701c, which provides in relevant part:

"... No money appropriated under authority of section 701f of this title shall be expended on the construction of any project until States, political subdivisions thereof, or other responsible local agencies have given assurances satisfactory to the Secretary of the Army that they will (a) provide without cost to the United States all lands, easements, and rights-of-way necessary for the construction of the project, except as otherwise provided herein; (b) hold and save the United States free from damages due to the construction works; (c) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of the Army ...."

It appears without dispute that the Governor of Tennessee, pursuant to an enabling statute enacted for this purpose in 1959, gave the Secretary of the Army assurances that the State would perform in accordance with the above-quoted provision. However, it also appears that by 1970, the Corps was advised by the Governor that the legislature had failed to make a current appropriation to allow the continuance of this project and that the State did not consider itself contractually bound unless an appropriation was made. Plaintiffs therefore contend that the Corps cannot proceed without a proper "sponsoring agency" which it does not have.

We conclude that plaintiffs' contention must fail for at least two reasons. In the first place, it appears that, in providing that there must be "assurances satisfactory to the Secretary of the Army," the statute commits the decision to agency discretion and that therefore there is no "law to apply" here; accordingly, we are prohibited, under 5 U.S.C.A. § 701, from reviewing the Secretary's acceptance of assurances from local authorities. Citizens to Preserve Overton Park, Inc. et al. v. Volpe et al., 401 U.S. 402, 410, 91 S.Ct. 814, 28 L. Ed.2d 136 (1971). Secondly, it appears that plaintiffs do not have standing to complain about a failure to comply with the aforesaid statutory provision. The interest that the plaintiffs seek to protect is that of ecology; and since such interest is not arguably within the zone of interest intended to be protected by this statutory provision, they do not have standing. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970). Moreover, the only conceivable way in which plaintiffs could suffer harm from a failure to comply with this statute would be harm from a failure to maintain the enlarged and realigned channels. And since it is the very maintenance of the enlarged and realigned channels, after the work is done, that will continue to do ecological damage (and, conversely, the failure to do so that would reduce such damage), plaintiffs will not in fact be harmed by a failure of the State of Tennessee to maintain these channels. Accordingly, having no "sponsoring agency" would not cause plaintiffs injury in fact and thus, for this reason also, they have no standing. Association of Data Processing Service Organizations, Inc., supra.

Defendants are therefore entitled to summary judgment insofar as plaintiffs rely on 33 U.S.C.A. § 701c.

Plaintiffs also rely on the Fish and Wildlife Coordination Act of 1958 (16 U.S.C.A. § 661 et seq., hereinafter "Act of 1958") and the National Environmental Policy Act of 1969 (42 U.S.C.A. § 4321 et seq., hereinafter "NEPA").

It should be noted at this point that this project was authorized in 1948 (Flood Control Act of 1948) but the work did not begin until the early 1960's, and since then it has been carried on intermittently and is not substantially completed.³

Under 16 U.S.C.A. § 662(a), the Corps is required to "consult with" the U. S. Fish and Wildlife Service of the Department of the Interior, and with the concerned State agency with a view to conservation of wildlife resources as well as development and improvement of such resources in connection with the project. Under § 662(b) the Corps is required to give "full consideration" to the views of those agencies. Under § 662(c), the Corps is authorized to modify or add to the structures of the project and to acquire lands in accordance with § 663 to promote conservation as part of the project, provided such is compatible with the purpose of the project and is justifiable and is treated as part of the cost of the project. § 663(a) provides that the Corps shall make "adequate provision," consistent with the primary purpose of the project, for the use of these rivers as well as the land acquired in connection with the project, for the conservation of and development of wildlife resources pursuant to the provisions of § 662.

NEPA, which became effective January 1, 1970, states its purposes to be (42 U.S.C.A. § 4321), inter alia, to declare a national policy of encouraging harmony between man and environment, to promote efforts to prevent damage to the environment, and to enrich understanding of ecological systems. In § 4331(a)...