Environmental D. Fund, Inc. v. Corps of Eng. of US Army

• Decision Date: 05 May 1972
• Docket Number: No. LR-70-C-203.,LR-70-C-203.
• Citation: 342 F. Supp. 1211
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

342 F. Supp. 1211

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants.

No. LR-70-C-203.

United States District Court, E. D. Arkansas, W. D.

May 5, 1972.

Richard S. Arnold, Texarkana, Ark., Edward Lee Rogers, Stony Brook, N. Y., Wellborn Jack, Jr., Shreveport, La., for plaintiffs.

W. H. Dillahunty, U. S. Atty., Little Rock, Ark., Stuart Schoenburg, Land and Natural Resources Division, Department of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION NUMBER SIX

EISELE, District Judge.

On January 13, 1972, the defendants filed with the Court the new environmental impact statement and simultaneously filed a motion for summary judgment in which they have asked the Court to dissolve and set aside the injunction.¹ The plaintiffs thereupon filed a comprehensive brief in opposition to the defendants' motion, contending, among other things, that there were genuine issues of fact yet to be disposed of.² Plaintiffs first contended that defendants' new EIS was "not impartial and objective". Court and counsel engaged in correspondence in an effort to define the type and degree of "objectivity" that was required by the NEPA. The Court concluded that, "at a minimum, the involved federal agency must make a good faith effort to comply with the provisions of NEPA". It further concluded that the NEPA does not permit impact statements to be "consciously slanted or biased" since a "contrary view would negate the requirement of good faith". The Court specifically emphasized the word "consciously" which, it stated, carried with it "the inference of intentional misrepresentation".

After the above correspondence, the plaintiffs advised the Court that they would like the opportunity to prove that the impact statement was "consciously slanted or biased" and to show "actual bad faith or improper behavior" on the part of the defendants. A hearing for this purpose, and, indeed, to provide plaintiffs with an opportunity to present evidence upon any genuine issue of material fact which they believed remained in the case, commenced at 9:30 a. m. on April 27, 1972, and was concluded on the afternoon of April 28, 1972. At the conclusion of the hearing, the Court found from the bench that the defendants prepared the new impact statement in good faith and that said defendants had made a good faith effort to comply with the provisions of the NEPA. The Court further found that the new EIS was not consciously slanted or biased and that the defendants had not consciously or intentionally made any misrepresentations in the new EIS or consciously or intentionally withheld any pertinent information required by the NEPA. The Court also found that the defendants had attempted to make a full disclosure of the pertinent facts and opinions, both favorable and unfavorable, in the new EIS. The Court concluded that the new EIS met the "objectivity" requirements of the NEPA.

The plaintiffs also contend that the EIS arbitrarily and capriciously misstates the facts with respect to the effect of the dam upon the sport and recreation of canoeing. An expert canoeist, Mr. David Gail Cowart, testified that the most desirable canoeing conditions are those described in the new EIS as "intermediate". He further testified that these optimum flow conditions would be adversely affected by the construction of the dam. By personally observing the Cossatot River he made the judgment that the best canoeing conditions would result when the flow was between 200 cubic feet per second and 400 cubic feet per second. Starting with this judgment he then analyzed the hydrographs to determine the frequency of such conditions, first, assuming the dam in place and, secondly, assuming that the Cossatot remained a free-flowing river. The plaintiffs also urge, in this connection, that the basic hydrological information which now makes possible Mr. Cowart's testimony was not released by the defendants until the close of the period for comment on the new EIS.

Although one may fault the defendants for concluding that there was a much broader spectrum of flows which would support good canoeing and good floating (without first getting the advice and opinion of an expert canoeist), the Court cannot find from the evidence, or conclude as a matter of law, that the defendants have arbitrarily and capriciously misstated the facts. Certainly there was no deliberate or intentional misrepresentation on the part of the defendants.

Plaintiffs assert that the most serious deficiencies in the new EIS are evident in the defendants' discussion and development of the alternative of preserving the Cossatot as a "scenic river" under the National Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 et seq. The EIS does state that "the Cossatot . . . appears to have merit for consideration as a scenic river" (p. 3-38) and that "the Cossatot appears to have merit within the qualifications outlined for a scenic river designation because the river is indeed replete with scenic amenities" (p. 5-25). But plaintiffs argue that the statement appearing at page 5-24 that "the State of Arkansas has not designated, recommended, or asked for any action on the Cossatot pursuant to the Wild and Scenic Rivers Act" is not true. Evidence intended to support this charge was received at the most recent hearing. That evidence reveals that Mr. Troyt York, the Director of the Department of Planning for the State of Arkansas, wrote to Mr. Roy Wood, Regional Director, United States Department of Interior, Bureau of Outdoor Recreation, on June 16, 1971, recommending the Cossatot River for consideration "because it is the most unique white-water recreational stream in the Ouachita and southwest Arkansas area, and because it is the only remaining high quality stream of this type in the southern part of the state having possibilities of preservation". It is clear that the existence of this letter was known to the defendants as early as August 31, 1971, on which date a representative of the plaintiffs so apprised the defendants in an oral statement read at a public hearing held by the defendants at Fort Smith, Arkansas. The problem, however, arises from the difficulty which the defendants had in obtaining directly from the State of Arkansas, or its appropriate agencies, a clear indication of the actual position of the state. Resolutions passed by the Arkansas General Assembly appeared to indicate that the state's position is that the dam should be constructed. On October 4, 1971, Colonel Morris wrote to Mr. York as follows:

"Information presented at the public meetings, held to secure information for the Gillham Lake environmental impact statement, indicates that your agency made some type of request to the Southeast Regional Office of the Bureau of Outdoor Recreation concerning the Cossatot as a Wild and/or Scenic River.

"Since we did not receive a copy of such a request in your correspondence or from BOR we assume you inadvertently overlooked furnishing it for inclusion in the environmental impact statement.

"Could we please have a copy of the request so it may be included."

On October 27, 1971, Mr. Harold E. Alexander, Head, Environmental Planning Division, Arkansas Department of Planning, responded to Colonel Morris' letter, stating, inter alia:

". . . I wish to note that our correspondence with the BOR did not specifically recommend that the Cossatot be so designated, but was in response to a request for suggestions as to outstanding scenic and recreational rivers in Arkansas which might be included in a study list which is being compiled by the BOR to evaluate possible inclusion in a list of rivers which might be recommended as components of the National Wild and Scenic River System. . . .

"We do believe that the Cossatot has outstanding qualities which would merit its consideration for designation as a wild and scenic river, and our comments included on the suggestions that this stream be added to the study list for such rivers. It is also our belief that this possibility provides an alternative to other plans which have been developed for this river, and that such an alternative should be considered as an alternative."

Mr. Roy Wood, the Atlanta office Regional Director of BOR, testified at this latest hearing as a witness for the plaintiffs. He indicated that the BOR had treated Mr. York's letter of June 16, 1971, as a recommendation that the Cossatot be designated as a scenic river and was proceeding accordingly.

It appears from Mr. Wood's testimony that his office has recommended the Cossatot, and it apparently is on the "5D list", specifying streams approved for study jointly by the Secretary of the Interior and by the Secretary of Agriculture. Mr. Wood was unable to give the Court any specific time frame within which further decisions or actions might be made or taken with respect to the Cossatot under the Wild and Scenic Rivers Act.

The Corps of Engineers did not write to Mr. Wood requesting a copy of the June 16, 1971, letter which he had received from Mr. York, but, as noted above, they did make the effort to obtain a copy of that letter directly from the Arkansas Department of Planning. It also appears from the evidence that neither the Arkansas Department of Planning nor any other agency of the State of Arkansas has written to Mr. Wood or to the BOR to withdraw the recommendation of June 16, 1971.

From all the above, the Court cannot find, as claimed by the plaintiffs, that the statement in the EIS that "the State of Arkansas has not designated, recommended, or asked for any action on the Cossatot pursuant to the Wild and Scenic Rivers Act" is not true. Certainly it was not intentionally false and, from all the facts, it can only be fairly said that the position of the State of Arkansas on the issue is ambiguous, probably reflecting the efforts of the various protagonists to affect state action.

It is clear that Mr. Wood has strong...