Akers v. Resor, Civ. A. No. C-70-349.

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Citation339 F. Supp. 1375
Docket NumberCiv. A. No. C-70-349.
Decision Date28 March 1972
PartiesJ. 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.


339 F. Supp. 1376

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

339 F. Supp. 1377
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

339 F. Supp. 1378
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...

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11 practice notes
  • Concerned Residents of Buck Hill Falls v. Grant, No. 75-1360
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 1 Junio 1976
    ...assurances to pay the required non-Federal share of project costs . . . " prior to December 31, 1969. 14 Relying on Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn.1972), SCS contends that the "extent" of the Secretary's discretion under this statute is so great that the determination of whether......
  • Sun Enterprises, Ltd. v. Train, No. 75 Civ. 68.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 Mayo 1975
    ...U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn. 1972.) The Court has not found any cases dealing with Interior's obligations under the Coordination Act, or any cases which invol......
  • Environmental Defense Fund v. Alexander, No. EC 77-53
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 1 Octubre 1980
    ...requirement for their 501 F. Supp. 762 `local assurances' claim under § 201 of the Flood Control Act of 1962." Id. Akers v. Resor, 339 F.Supp. 1375 (W.D. Tenn.1972), injunction cont'd, 443 F.Supp. 1355 (W.D.Tenn.1978), held that plaintiffs who represented environmental interests had no stan......
  • Creppel v. US Army Corps of Engineers, Civ. A. No. 77-25.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 8 Agosto 1980
    ...did not obtain binding assurances of cooperation from Jefferson Parish as required by 33 U.S.C. §§ 701s and 701c. In Akers v. Resor, 339 F.Supp. 1375 (WDTenn.-1972), the Court found that Section 701c in providing "there must be assurances satisfactory to the Secretary of the Army" commits t......
  • Request a trial to view additional results
11 cases
  • Concerned Residents of Buck Hill Falls v. Grant, No. 75-1360
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 1 Junio 1976
    ...assurances to pay the required non-Federal share of project costs . . . " prior to December 31, 1969. 14 Relying on Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn.1972), SCS contends that the "extent" of the Secretary's discretion under this statute is so great that the determination of whether......
  • Sun Enterprises, Ltd. v. Train, No. 75 Civ. 68.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 Mayo 1975
    ...U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn. 1972.) The Court has not found any cases dealing with Interior's obligations under the Coordination Act, or any cases which invol......
  • Environmental Defense Fund v. Alexander, No. EC 77-53
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • 1 Octubre 1980
    ...requirement for their 501 F. Supp. 762 `local assurances' claim under § 201 of the Flood Control Act of 1962." Id. Akers v. Resor, 339 F.Supp. 1375 (W.D. Tenn.1972), injunction cont'd, 443 F.Supp. 1355 (W.D.Tenn.1978), held that plaintiffs who represented environmental interests had no stan......
  • Creppel v. US Army Corps of Engineers, Civ. A. No. 77-25.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 8 Agosto 1980
    ...did not obtain binding assurances of cooperation from Jefferson Parish as required by 33 U.S.C. §§ 701s and 701c. In Akers v. Resor, 339 F.Supp. 1375 (WDTenn.-1972), the Court found that Section 701c in providing "there must be assurances satisfactory to the Secretary of the Army" commits t......
  • Request a trial to view additional results

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