Delaware Valley Conservation Association v. Resor
| Decision Date | 05 June 1967 |
| Docket Number | Civ. No. 9675. |
| Parties | DELAWARE VALLEY CONSERVATION ASSOCIATION et al., Plaintiffs, v. Stanley R. RESOR, Individually and as Secretary of the Department of the Army of the United States of America, Stewart L. Udall, Individually and as Secretary of the Interior of the United States of America, and W. F. Cassidy, Individually and as Chief of Engineers of the Department of the Army of the United States of America, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Robert P. Garbarino, Arthur J. Kania, Austin J. McGreal, Crumlish & Kania, Eugene F. Brazil, Philadelphia, Pa., for plaintiffs.
Bernard J. Brown, U. S. Atty., Scranton, Pa., for defendants.
Plaintiffs, Delaware Valley Conservation Association, a non-profit Delaware corporation, and over six hundred individual property owners, commenced this action seeking to enjoin the defendants from proceeding with plans for the development of the Delaware Water Gap National Recreation Area and the Tocks Island Reservoir Project.1 The defendants are Government officials, viz., Secretary of the Army, Secretary of the Interior, and Chief of Engineers of the Department of the Army, and are being sued individually and in their official capacities. Defendants filed a motion to dismiss or, in the alternative, for summary judgment, and this motion is now before the Court.
Initially, the factual background of this case as gleaned from the pleadings and briefs, should be outlined in order to put the issues raised in proper perspective. The Tocks Island Reservoir Project was authorized by Congress in 1962 as a multiple-purpose project to include facilities for water conservation and supply, flood control, recreation and hydroelectric power. The statutory purposes were to be accomplished under the direction of the Secretary of the Army and the supervision of the Chief of Engineers. In 1965, as an integral part of the Tocks Island Reservoir Project, Congress authorized the establishment of the Delaware Water Gap National Recreation Area and the Secretary of the Army was authorized to acquire properties within the area and, after acquisition, to transfer jurisdiction over the lands to the Secretary of the Interior. The Reservoir Project and the Recreation Area are scheduled to be in full operation no later than 1975, and Congress has also authorized to be appropriated to the Secretaries of the Army and the Interior, for their respective purposes, the sums of $192,400,000 and $37,412,000. The Congressional appropriation for these sums has not yet been made, although some funds are available from the Land and Water Conservation Fund, pursuant to an authorization of $6,339,500. The Reservoir Project is designed to have a flood control storage capacity of 89.6 billion gallons, which purportedly will aid in reducing flood stages along the Delaware River in Pennsylvania and New Jersey. The project is geared to provide a long-term storage capacity of 133.6 billion gallons which may be used to satisfy the future water supply needs of the Trenton-Philadelphia area. According to Government plans, the long-term storage capacity will create a recreational pool of 12,100 acres and over 100 miles of shore-line. The proposed development of ten major recreation sites within project limits is expected to contribute to the recreational needs of the heavily populated Philadelphia-New York City complex. Needless to say, this project is an ambitious and gigantic undertaking.
Plaintiffs, in their brief, contend that "* * * (t)he complaint avers that said defendants individually and in concert are, inter alia, unlawfully proceeding with acquisition and condemnation of lands and waters and entering into power contracts for the so-called Tocks Island Reservoir Project and Delaware Water Gap National Recreation Area without statutory authority, in violation of applicable law and without funds to pay just compensation, and that said reservoir is geologically unsound and unfeasible and will constitute a public nuisance and a clear and present danger to the public health, safety and welfare." It should be noted here that these allegations in the complaint are set forth in broad, conclusory and extremely general terms. Notwithstanding these allegations, defendants assert, in support of their motion, that (1) the Court lacks jurisdiction because plaintiffs' suit against them is in effect a suit against the United States to which it has not consented; (2) the relief sought by the plaintiffs would invade the powers of the officers of the executive branch to whom the operation of this project has been delegated and would violate the doctrine of separation of powers, and (3) the pleadings fail to state a claim upon which relief can be granted.
As to the jurisdictional argument, the law is clear that if the relief sought is against the sovereign itself, even though the suit is nominally addressed to individual Governmental officers, then the Court has no jurisdiction. If such is the case, "* * * then the suit is barred, not because it is a suit against an officer of the Government, but because it is, in substance, a suit against the Government over which the court, in the absence of consent, has no jurisdiction." Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. However, there may be instances of suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. Also, where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. As a result, he is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. Larson v. Domestic and Foreign Corp. (supra). In Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168, the rule applicable to such situations was expressed as follows:
"* * * the action of a federal officer affecting property claimed by a plaintiff can be made the basis of a suit for specific relief against the officer as an individual only if the officer's action is `not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular...
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