Broadened Horizons Riverkeepers v. U.S. Army Corps, 1:96-CV-446.

• Decision Date: 20 May 1998
• Docket Number: No. 1:96-CV-446.,1:96-CV-446.
• Citation: 8 F.Supp.2d 730
• Parties: BROADENED HORIZONS RIVERKEEPERS, Save America's Forests; the Bankhead Monitor; and Heartwood, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; John L. Whisler, Jr., District Engineer, and Tennessee Valley Authority, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

8 F.Supp.2d 730

BROADENED HORIZONS RIVERKEEPERS, Save America's Forests; the Bankhead Monitor; and Heartwood, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; John L. Whisler, Jr., District Engineer, and Tennessee Valley Authority, Defendants.

No. 1:96-CV-446.

United States District Court, E.D. Tennessee.

May 20, 1998.

Donald J. Aho, Phillip E. Hoover, Chambliss, Bahner & Stophel, PC, Chattanooga, TN, Ray Vaughan, Montgomery, AL, for Plaintiffs.

M. Kent Anderson, U.S. Department of Justice, Office of U. S. Attorney, Chattanooga, TN, R. Lee Leininger, Kenneth E. Kellner, U.S. Department of Justice, Environment & Natural Resources Division, Teri R. Thomsen, Eileen Sobeck, John J. Sipos, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Edward S. Christenbury, James E. Fox, Robert C. Glinski, Ronald E. Klipsch, and Harriet A. Cooper, Tennessee Valley Authority Office of General Counsel, Knoxville, TN, Steven P. Quarles, J. Michael Klise, Thomas R. Lundquist, Crowell & Moring, LLP, Washington, DC, Roger W. Dickson, William P. Eiselstein, Miller & Martin, Chattanooga, TN, for Defendants.

MEMORANDUM

EDGAR, District Judge.

I.

This suit is brought by four environmental organizations against the United States Army Corps of Engineers and its District Engineer, John L. Whisler, Jr. (the "Corps"); and the Tennessee Valley Authority ("TVA"). Several companies, organizations and individuals have been permitted to intervene as party defendants. These are the Tennessee Forestry Association; Van R. Michael, Trustee; Champion International Corp.; International Paper Corp.; American Forest and Paper Association; and Southeast Wood Fibers, L.L.C. ("intervenors"). The Court in this opinion concludes that many of the plaintiffs' claims are barred by the statute of limitations, but that, because the plaintiffs lack standing, all of their claims must be DISMISSED. Summary judgment will be GRANTED to the defendants.

II.

Beginning in the 1940s the Corps, and later TVA, granted permits for constructing and modifying dock and loading facilities on the Tennessee and Cumberland Rivers.¹ The allegations in this case are limited to thirteen such locations. They are:

(1) Alabama State Docks, Tennessee River Mile ("TRM") 413.6;

(2) Baker Sand & Gravel—Mannington Wood Floors, TRM 390.3;

(3) Southeastern Forest Products and Champion International, TRM 145.9;

(4) Continental Grain Company, TRM 100.4;

(5) Lyon County Port Authority, Lick Creek Mile 0.4 Opposite Cumberland River Mile 43.0;

(6) Arrow Transportation Co. — Guntersville Marine, TRM 358.2;

(7) Hardin County Port Authority, TRM 207.7;

(8) Sangravl Company, TRM 100.2;

(9) Arrow Transportation Co. — International Paper Co., TRM 171.2;

(10) Lenoir City Terminal Company, TRM 600.2;

(11) Nickajack Port — City of South Pittsburg, TRM 424.0;

(12) Tinker Sand and Gravel, TRM 135.5; and

(13) Paducah — McCracken County River Port Authority, TRM 1.6.

Plaintiffs have asserted in affidavits² that they have suffered various environmental injuries from what they term "wholesale deforestation" of the Tennessee River Valley. In particular, they say they are impacted by the practice of forest "clear-cutting." Their complaint in this suit is that the Corps and TVA have violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 — 4370d (1994 and supp. I, 1995), by issuing permits which allowed transportation of wood chips or whole logs at the above locations without considering the indirect and cumulative effects of timber harvesting. Plaintiffs also contend that the Corps and TVA have violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 — 1544 (1994), by approving permits at these locations without consulting with the United States Fish and Wildlife Service about the alleged impact on timber harvesting.

Before the Court are motions for summary judgment filed by each of the defendants and intervenors.³ In these motions the defendants and intervenors contend that the plaintiffs lack standing to bring this case, and that the plaintiffs' claims regarding many of the permit decisions made by the Corps and TVA are barred by the applicable statute of limitations. They also assert the defense of laches and several other affirmative defenses.⁴

III. Standing

A party may not bring a suit in federal court without standing. Standing is a "core component" of the "case-or-controversy" requirement of Article III of the United States Constitution. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1067, 137 L.Ed.2d 170 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party invoking federal jurisdiction must bear the burden of establishing three elements:

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized ..., and (b) "actual or imminent, not `conjectural' or `hypothetical,'". ... Second, there must be a causal connection between the injury and the conduct complained of — and the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." .... Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (citations omitted); see also Bennett v. Spear, 520 U.S. 154, ___, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997); Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656, 663-64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993).

A. Injury in Fact

Ceilo and Leaf Myczack live on a boat, upon which they travel up and down the Tennessee and Cumberland Rivers gathering environmental information which they provide to the public via magazine articles, churches, civic organizations, and governmental agencies. They are particularly concerned about "chip mills," which produce wood chips from hardwood harvested in the Tennessee Valley. They claim that they have suffered, and are suffering, environmental injury. In a previous ruling this Court has stricken portions of affidavits submitted by the Myczacks as inadmissible lay and expert opinion testimony under Rules 701 and 702, FEDERAL RULES OF EVIDENCE. What remains in the form of environmental injury to the Myczacks are their observations that the waterways of the Tennessee Valley have increased in turbidity and siltation; and that clear-cuts, which they have observed, are aesthetically unpleasing. Aesthetic changes that adversely affect the scenery and the environment are "judicially cognizable interests" and can be injuries in fact, Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), provided of course that they meet other Article III requirements, to-wit: that they are concrete and particularized, and actual or imminent, not hypothetical.⁵ Lujan, 504 U.S. at 574-78, 112 S.Ct. 2130.

Accepting that the Myczacks, because they live on the river, can observe turbidity and siltation, and can observe clear-cuts (some of which they have photographed), it can be concluded that they have suffered the genre of injury which could support their NEPA claim.⁶ However, as will be discussed below, these injuries are not NEPA injuries-in-fact because they are "conjectural" in the sense that they cannot be fairly traced to governmental action or inaction. Plaintiffs, for the same reason, have no injury in fact under the ESA. In addition, since the plaintiffs' affidavits provide no admissible evidence that governmental action threatens a listed species, they have no assertable injury-in-fact under ESA. Lujan, 504 U.S. at 564, 112 S.Ct. 2130.

B. Causation and Redressability

The plaintiffs have no standing unless they demonstrate a causal connection between their environmental injury and action (or inaction) of the Corps and TVA. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Here the plaintiffs claim that the Corps and TVA, in granting permits for river loading docks have not prepared an environmental statement ("EIS") for any of those permits. Plaintiffs assert that EISs would have permitted the Corps and TVA to engage in "informed decisionmaking" about the effect that the permits might have on timber cutting in the Tennessee Valley. Since the Corps and TVA have allegedly not properly evaluated this timber factor, the plaintiffs claim that they have suffered injury.

The causation issue boils down to whether the plaintiffs have shown that the river loading docks have caused them environmental harm. The difficulties which the plaintiffs face in making this showing are readily apparent. The wood that is shipped from the docks is cut from private property. The Corps and TVA have control over neither the property owners nor the timber cutters. The Supreme Court has recognized that causation is difficult to demonstrate when a plaintiff's injury is asserted to arise from the government's regulation (or lack of regulation) of third parties. Causation is here dependent upon choices made by "independent actors" not before the Court. In such a case, the plaintiffs must produce facts showing that "those choices have been or will be made in such a manner as to produce causation and permit redressability of injury." Lujan, 504 U.S. at 562, 112 S.Ct. 2130. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

It is a matter of economic speculation as to what private landowners would do if they were unable to ship wood through river docks. Since there are other means of transportation besides river barges, timber harvesting may not be affected. If river shipments were to be eliminated, a plausible scenario might be that chip mills and other timber users may reduce the price they pay for wood,...