Citizens for Reid State Park v. Laird, Civ. No. 13-18.

• Decision Date: 21 January 1972
• Docket Number: Civ. No. 13-18.
• Citation: 336 F. Supp. 783
• Parties: CITIZENS FOR REID STATE PARK, an unincorporated association of Maine citizens, et al., Plaintiffs, v. Melvin LAIRD, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Maine

336 F. Supp. 783

CITIZENS FOR REID STATE PARK, an unincorporated association of Maine citizens, et al., Plaintiffs, v. Melvin LAIRD, Secretary of Defense, et al., Defendants.

Civ. No. 13-18.

United States District Court, D. Maine, S. D.

January 21, 1972.

Hugh Calkins, and R. John Westhoff, Portland, Me., for plaintiffs.

Peter Mills, U. S. Atty., John B. Wlodkowski, Asst. U. S. Atty., Portland, Me., Edward R. Fink, Alexandria, Va., for defendants.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Plaintiffs in this action seek to enjoin the United States Department of the Navy and Marine Corps from carrying out "Operation Snowy Beach," a mock amphibious landing on the beaches of Reid State Park in Georgetown, Maine, scheduled to take place on January 22-26, 1972, as part of a combined sea, air and amphibious training maneuver. In their amended complaint, plaintiffs allege that the operation poses the threat of serious potential ecological damage to the park. They seek to enjoin the Navy and Marine Corps from proceeding with the operation until the requirements of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. § 4321 et seq.), Executive Order 11514 (35 F.R. 4247), the guidelines of the Council on Environmental Quality (36 F.R. 7724), and the Department of Defense Guidelines on Environmental Statements (36 F.R. 15750) are met. They allege that defendants have violated the policy and procedures set forth in NEPA and the cited Executive Order and guidelines.

Plaintiff Citizens for Reid State Park is a private unincorporated association of Maine citizens and residents interested in protecting the natural environment of Reid State Park. Plaintiff Environmental Defense Fund, Inc. is a non-profit corporation dedicated to protection and conservation of the environment and natural resources of the United States. The individual plaintiffs are Maine citizens who live in the area served by Reid State Park. Defendants are the Secretary of Defense, Secretary of the Navy, and Commandant of the Marine Corps. It is conceded that the Court has jurisdiction over the action pursuant to 28 U.S.C. § 1331 (a) and 5 U.S.C. §§ 701-706 and defendants do not contest that plaintiffs meet the requirements for standing recently set forth by the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).¹

With the agreement of the parties, the trial of the action on the merits has been advanced and consolidated with the hearing of plaintiffs' application for a temporary restraining order and a preliminary injunction, Fed.R.Civ.P. 65(a) (2). An evidentiary hearing was had on January 19 and 20, 1972, all parties being represented. The essential facts are not disputed.

Reid State Park

Reid State Park is located on the Maine coast in Georgetown, Maine. It has approximately one and one-half miles of shoreline and contains approximately 800 acres, consisting of sand beach, sand dunes, two salt marshes and wooded uplands. The beach is bounded by rocky headlands. The sand dunes adjoin the beach and are reasonably well covered by dune grass (Ammophillia sp.). One salt marsh extends inland from the dunes; the second runs along a small river constituting the park's southern boundary. The marshes are composed primarily of salt marsh grasses (Spartina S. alterniflora and S. patens). The wooded uplands comprise the bulk of the interior of the park. They are covered by a typical Maine coastal growth of pitch pine, spruce and some hardwoods, interspersed with rocky outcroppings covered by lichens (Cladonia spp.) and mosses.

The park is owned by the State of Maine and is operated and maintained by the Maine State Department of Parks and Recreation (prior to January 1, 1972, the Maine State Park and Recreation Commission). The Department maintains roads and various other facilities in the park for the convenience of the public. Of present significance are the principal road leading from the main entrance at the northerly extremity of the park to the Griffith Head parking lot at the northerly end of the beach and the Todd's Point parking lot at the southerly end of the beach. These parking areas have a maximum capacity of approximately 800 vehicles. All areas of the park are open to the public. On a normal summer weekend, as many as 6,000 persons visit the park in one day. During the winter months, the park is essentially closed to the public.

Operation Snowy Beach

That part of Operation Snowy Beach which relates to Reid State Park will consist of the landing of approximately 900 marines, who will bivouac in the wooded upland interior of the park over a three or four-day period and engage in cold weather training exercises. There are three alternate plans for the landing: (1) Under the preferred plan, an artillery battery, with four to six 105 mm. howitzers, and one rifle company, in seven amphibious tractors, will land on the beach at Todd's Point and will proceed on the existing access road to the Todd's Point parking area, a distance of less than 200 yards. The artillery battery will remain at Todd's Point. The rifle company will travel on foot along a wooded ridge to the bivouac area. A second rifle company will land by helicopter in a field at the park entrance, and a third rifle company will land by helicopter in a field near the center of the park. All personnel will then proceed on foot to the bivouac area. (2) If weather conditions preclude helicopter landings, all three rifle companies will land on the beach, in ten amphibious tractors, at either Todd's Point or Griffith Head, will proceed over the existing access roads the short distance to the respective parking areas, and thence will travel by foot over existing roads and ridges to the bivouac area. (3) If weather conditions preclude a beach landing, all personnel will land by helicopter in the designated landing areas.

In the bivouac area, the troops will set up company encampments and sleep in pup tents. They will be fed C rations and one hot meal daily, which will be flown in by helicopter from their ships. There will be no cooking except for heating C rations over heat tabs. In their training exercises, the troops will be restricted to the upland wooded areas and existing park roads.

At the conclusion of the exercise, the troops will embark along the same routes by which they landed.

In accordance with the terms of the permit issued by the Maine State Park and Recreation Commission, as supplemented by a written and oral agreement between the Commission and the Navy, the operation will be conducted subject to the following conditions: (1) all motor vehicles will be restricted to existing roadways; (2) with the exception of the designated landing and embarkation areas at Todd's Point, and if necessary at Griffith Head, the beaches, the sand dunes and the salt marshes will not be used by vehicles, helicopters or personnel; (3) helicopters will land only in designated landing areas at the Todd's Point and Griffith Head parking lots, in the field at the park entrance and in the field near the center of the park; (4) helicopters will descend and ascend vertically; (5) portable chemical toilets will be used by all personnel; (6) no trees will be cut; (7) no live ammunition will be used; (8) there will be no littering of the park area, which is to be left in the same condition, as near as possible, as it is at the commencement of the exercise.

Potential Environmental Damage

So far as the record discloses, if the conditions of the exercise are met, the only potential environmental damage, either ecological or aesthetic, to the park is: (1) that which may result from personnel walking over rocky outcroppings in the wooded upland area of the park and thereby tearing loose portions of the covering mat of lichens and mosses, and (2) that which could result from the "blowing out" of dune grass by the wash from the helicopter propellers if in landing or taking off from the parking areas they should fly too low over a dune.

NEPA and Implementing Guidelines

NEPA, which became effective January 1, 1970, was a major step forward in the effort of the federal government to insure that man can continue to live in harmony with his environment. It requires all federal agencies to consider environmental values in their spheres of operation, and it prescribes certain procedures to be followed to insure that such values are in fact fully respected. Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1111 (D.C. Cir. 1971). Section 101(a) of the Act, 42 U.S.C. § 4331(a), sets forth the Act's basic substantive policy by declaring that it is the "continuing policy of the Federal Government" to "use all practicable means and measures" to protect environmental values. Section 101(b), 42 U.S.C. § 4331(b), asserts the "continuing responsibility of the Federal Government to use all practicable means, consistent with other essential conditions of national policy," to avoid degradation of the environment, to preserve "historical, cultural and natural" resources, and to attain "the widest range of beneficial uses of the environment without . . . undesirable and unintended consequences."

Section 102, 42 U.S.C. § 4332, contains the procedural provisions of the Act. In essence, Section 102 requires every federal agency "to the fullest extent possible" to consider ecological factors, and to minimize adverse environmental effects, before undertaking any activity which may have an impact on man's environment.² Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, supra at 1112-1113; Zabel v. Tabb, 430 F.2d 199, 211 (5th Cir. 1970), cert. denied 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Of particular significance to the present action...