Environmental Defense Fund, Inc. v. Alexander
| Decision Date | 24 March 1980 |
| Docket Number | No. 79-2684,79-2684 |
| Citation | 614 F.2d 474 |
| Parties | , 10 Envtl. L. Rep. 20,302 ENVIRONMENTAL DEFENSE FUND, INC., Committee for Leaving the Environment of America Natural, Glenn H. Clemmer, G. Randall Grace, and F. Glenn Liming, Plaintiffs-Appellants, v. Clifford R. ALEXANDER, Secretary, Dept. of the Army, the United States Army Corps of Engineers, Dept. of the Army, and Major General John Morris, Chief of Engineers, Dept. of the Army, Defendants-Appellees, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama and Tombigbee Valley Development Authority, Intervening Defendants- Appellees. LOUISVILLE AND NASHVILLE RAILROAD, Plaintiff-Appellant, v. Clifford R. ALEXANDER, Secretary, Dept. of the Army, the United States Army Corps of Engineers, Dept. of the Army, and Major General John Morris, Chief of Engineers, Dept. of the Army, Defendants-Appellees, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants- Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jon T. Brown, Stephen E. Roady, Washington, D. C., James T. B. Tripp, New York City, for plaintiffs-appellants.
Glenn Whitaker, Lawrence Moloney, U. S. Dept. of Justice, Washington, D. C., for Alexander and Morris.
Pogue & Pace, Ralph E. Pogue, Aberdeen, Miss., for Water Management Dist.
Hunter M. Gholson, Columbus, Miss., for Waterway Development Authority.
William T. Stephens, Asst. Atty. Gen., Montgomery, Ala., for State of Ala.
H. M. Ray, U. S. Atty., Oxford, Miss., for the U. S.
David Webb, Mobile Dist., Mobile, Ala., for U. S. Army Corps of Engineers.
Appeal from the United States District Court for the Northern District of Mississippi.
Before GEWIN, RUBIN and SAM D. JOHNSON, Circuit Judges.
This attempt to halt the construction of a federally financed waterway because the width of the waterway exceeds the size authorized by Congress was dismissed by the district court on the basis that it was barred by laches delay in presenting the claim resulting in prejudice to the defendants. We hold that laches was an appropriate defense, that the factual findings on which the district judge based his conclusions were supported by the record and that the legal principles he applied were correct.
The headwater of this litigation commenced to flow forty years ago when the Army Corps of Engineers presented Congress with a preliminary design for the proposed Tennessee-Tombigbee Waterway. The design was reviewed and modified in a report submitted to Congress in 1946. In that year Congress authorized construction of the waterway in accordance with the plans presented to it. Act of July 24, 1946, Pub.L.No. 79-525, 60 Stat. 634. The plans described a waterway that would provide a navigation channel not less than nine feet in depth with a minimum bottom width of 170 feet (called a 170-foot channel), thus permitting two-way barge traffic.
Shortly after authorizing construction, Congress decided that the waterway was not economically feasible, and for some time it did not appropriate any funds for construction. However, studies continued. In June, 1966, in response to a request by Congress for restudy of the economic desirability of the project, the Corps of Engineers recommended that the proposed plan be modified to provide for a 300-foot channel (for convenience we refer to this as the 300-foot channel although this is its minimum width at its bottom). A channel of this size would accommodate larger tows and be better suited to changed economic conditions. On November 3, 1966, the Chief of Engineers issued an announcement notifying the public that the restudy of the waterway had been completed, and that it had been determined that the project was better justified economically with a 300-foot channel. Interested parties were invited to present their views and comments concerning the report within thirty days.
The restudy report was submitted on March 20, 1967, to the Secretary of the Army with the recommendation that he exercise what the Corps considered his discretionary authority under the authorizing statute to increase the project width to 300 feet, and allow further planning to proceed on that basis. Ten days later the Secretary accepted and acted on this recommendation. He forwarded a copy of the restudy report to the House and Senate Public Works and Appropriations Committees along with a copy of his memorandum reflecting the increase in the project width. Congress did not then or later amend the statutory authorization for a 170-foot channel.
On May 18, 1967, the Association of American Railroads, on behalf of the L&N Railroad Company and other railroad companies in the waterway area, submitted a report to the Senate Appropriations Committee specifically suggesting the need for a reevaluation of the project authorization because of the increase in the project's width from 170 feet to 300 feet. See Public Works for Water and Power Resources Development and Atomic Energy Commission Appropriations for Fiscal Year 1969: Hearings on H.R. 17903 Before the Subcomm. of the Senate Comm. on Appropriations, 90th Cong., 2d Sess. 2050, 2054 (1968) (Statement of Tennessee-Tombigbee Waterway Project Committee, Association of American Railroads). Subsequently, the Appropriations Committees recommended appropriation (in fiscal year 1971) of construction funds for the waterway with the increased bottom width. During the budget hearings for fiscal year 1971, representatives of appellants L&N Railroad and Committee for Leaving the Environment of America Natural (CLEAN) appeared before the House and Senate Appropriations Committees to oppose funding of the waterway. 1
Congress appropriated construction funds of $1 million for fiscal year 1971 and $6 million for fiscal year 1972. See Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 348 F.Supp. 916, 924 (N.D.Miss.1972), aff'd, 492 F.2d 1123 (5th Cir. 1974). CLEAN and the Environmental Defense Fund (EDF) filed suit to enjoin the construction of the waterway in 1971. It was stipulated in that suit that the authorized width of the waterway was 300 feet. See id. at 920. Actual construction of the waterway began in 1972. Ultimately, the 1971 suit was dismissed by the court, and construction proceeded.
In November, 1976, this suit was filed, again seeking to enjoin construction. Plaintiffs alleged that the project under construction differed substantially from the project authorized by Congress and would have a greater impact on the environment and economic conditions of the surrounding areas, violating both statutory limitations and administrative regulations. However, the increase in the width of the channel was neither mentioned nor challenged. Over a year later, on January 30, 1978, an amended complaint was filed questioning, for the first time, the authority of the Corps to build a 300-foot channel.
When this suit was filed, the Corps had spent $36,000,000 out of a total estimated cost of $604,000,000 for channels and canals. By January 30, 1978, when the amended complaint was filed, it estimates it had completed 18% of the total project and spent over $265,000,000. After filing the lack of authority claims, the plaintiffs made no effort to obtain immediate injunctive relief and thus halt the further expenditure of funds or work on the project.
The Corps is now obligated on outstanding construction contracts in the amount of $864,302,200. If the project is restricted to a 170-foot channel, some of these funds may be recouped by sale of the unnecessary right of way and by renegotiation of contracts. Those who question authority to proceed urge that a substantial part of the $864 million could be saved if the project were restricted to 170 feet. In response to inquiry by this court concerning amounts spent for construction, the Corps estimates that by September 30, 1978,.$408,651,600 had been spent for construction and $616,007,156 has been spent to the present. The opponents of the waterway state that the following sums have been spent on actual project construction:
As of September 30, 1976: $93,314,300.
As of September 30, 1977: $176,324,100.
As of September 30, 1978: $286,862,900.
This is in addition to those costs incurred for purposes other than construction. 2
The district judge did not decide whether the Secretary was authorized to increase the width of the channel because he concluded that the challenge was barred by laches. Deciding only that issue, he directed entry of a final judgment pursuant to rule 54(b) of the Federal Rules of Civil Procedure, making an express determination that there was no just reason for delay and an express direction for the entry of judgment. That order is appealable. See Bailey v. McCann, 550 F.2d 1016 (5th Cir. 1977); B.B. Adams General Contractors, Inc. v. HUD, 501 F.2d 176 (5th Cir. 1974). After discussing the general principles applicable, we will consider separately each of the grounds on which it is urged that we should reverse.
Mindful that we do not sit to decree what accords with "commonsense and the public weal" and that the constitutional separation of governmental powers forbids the Secretary or this court to preempt congressional action, Tennessee Valley Authority v. Hill, 437 U.S. 153, 196, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117, 147 (1978), we review the applicability of the doctrine of laches. What is sought here is an injunction, an equitable form of relief. The doctrine of laches was developed by chancellors of equity to prevent the assertion of stale claims and to remedy an injustice that sometimes arose from the existence of the separate system of equity: when an equitable remedy was sought, the statute of limitations that...
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