Environmental Defense Fund, Inc. v. Froehlke

• Decision Date: 20 December 1973
• Docket Number: No. 20164-1.,20164-1.
• Citation: 368 F. Supp. 231
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants, and The City of Osceola, Mo., et al., Defendants-Intervenor.
• Court: U.S. District Court — Western District of Missouri

368 F. Supp. 231

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants, and The City of Osceola, Mo., et al., Defendants-Intervenor.

No. 20164-1.

United States District Court, W. D. Missouri, W. D.

November 8, 1973.

Cost Taxed December 5, 1973.

Injunction Denied December 20, 1973.

COPYRIGHT MATERIAL OMITTED

Edward Lee Rogers, East Setauket, N. Y., Arthur A. Benson, II, Kansas City, Mo., for plaintiffs.

Irwin L. Schroeder, Dept. of Justice, Washington, D. C., David M. Proctor, Jr., Asst. U. S. Atty., Kansas City, Mo., for Federal defendants.

Lyman Field, Reggie C. Giffin, Kansas City, Mo., for City of Osceola, Mo., et al.

F. Phillip Kirwan, Patrick E. Hartigan, Kansas City, Mo., for Tobin Const. Co.

John C. Danforth, Atty. Gen. State of Missouri, Walter W. Nowotny, Jr., Asst. Atty. Gen. of Mo., Jefferson City, Mo., for State of Missouri.

William H. Bates, Joseph E. Stevens, Kansas City, Mo., for Guy F. Atkinson Co.

John Manning, Kansas City, Mo., for Operating Engineers Local No. 101.

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT AND DECREE

JOHN W. OLIVER, District Judge.

I.

This case pends on plaintiffs' amended motion, filed May 5, 1973 (which amended an initial motion filed April 4, 1973) as further amended by paragraph 88 of plaintiffs' suggestions filed June 29, 1973, as amplified by plaintiffs' brief filed July 20, 1973, and by plaintiffs' suggestions in support of a motion for interim relief filed July 25, 1973, all of which attack the final EIS filed in this case as being inadequate as a matter of law.

Plaintiffs contend that they are entitled to judgment on the merits which would grant blanket injunctive relief. They have proposed a form of final judgment and decree under which this Court would, among other things, adjudge and decree (1) that the final EIS fails to meet the standards required by NEPA and (2) that the defendants acted arbitrarily and capriciously in failing to carry out the objectives of NEPA.

We find and conclude that plaintiffs are not entitled to any further relief; that under the circumstances of this case the final EIS is adequate and meets the requirements of NEPA; and that there is no basis for any finding that defendants failed to meet the arbitrary and capricious test in regard to their decision to proceed with the project.

II.

The relevant earlier history of this case is set forth in Environmental Defense Fund, Inc. v. Froehlke (W.D.Mo. 1972), 348 F.Supp. 338. It is not necessary to make any detailed reference to plaintiffs' most recent unsuccessful effort to obtain interim injunctive relief for the reason that the mandate issued by the Court of Appeals in connection with its order of September 24, 1973, affirming this Court's latest denial of plaintiffs' application for interim injunctive relief was received and filed by the Clerk of this Court on October 22, 1973. We shall therefore state only the history which relates to the merits of plaintiffs' present claim and state the reasons for our conclusion that plaintiffs are not entitled to any further relief.

The Court of Appeals concluded its opinion affirming orders entered by this Court on September 13, 1972 (see 348 F.Supp. at 365-366), by noting that in the orders then under review, this Court had retained jurisdiction pending the preparation and filing of a final EIS. It then stated that this Court would thus, "if prompt requests are made, have an opportunity to rule on the sufficiency of the new E.I.S. and an opportunity to review, under the arbitrary and capricious test, the decisions made by the defendants with respect to proceeding with the project" (Environmental Defense Fund, Inc. v. Froehlke (8th Cir., 1973), 477 F.2d 1033 at 1037.

Plaintiffs' initial attack on the final EIS was made April 4, 1973 in the form of a three sentence, single paragraph "Motion for declaration of procedural inadequacy of final environmental impact statement, the invalidity of the decision based on that statement, and for further injunctive relief." That motion sought a blanket injunction against any and all further construction of the project and requested that plaintiffs be afforded a hearing after they had been afforded "adequate pretrial discovery." On April 5, 1973 and on May 30, 1973, we entered orders, copies of which are attached hereto as Appendix A and B, respectively, which were designed to ascertain the real focus of plaintiffs' factual and legal contentions in regard to the final EIS. Those orders were made in light of the scope and standards of review articulated by the Court of Appeals in this and other environmental cases and its implicit admonition that plaintiffs make "prompt requests" to test the sufficiency of the final EIS and to have this Court review, under the arbitrary and capricious test, the decision made by the defendants to proceed with the project.

Although our Court of Appeals has recently concluded in Environmental Defense Fund Inc. v. Froehlke (8th Cir. 1972), 473 F.2d 346 at 351 (Cache River case) that "the formal impact statement supplies a convenient record for courts to use in reviewing agency decisions on the merits to determine if they are in accord with the substantive policies of NEPA," we nevertheless directed appropriate pretrial proceedings and set the case for plenary evidentiary hearing as requested by plaintiffs in order to afford them the opportunity to adduce any and all evidence which they deemed relevant and material under the circumstances. Pursuant to the Stipulation on Phase No. VIII, approved July 25, 1973, the Court received in evidence summaries of the testimony which the parties agreed would be given by ten witnesses and received in evidence 44 additional exhibits (one additional exhibit was subsequently admitted without objection).

During the course of those proceedings, the Court's attention was directed to Chief Judge Dalton's opinion in Cape Henry Bird Club v. Laird (W.D.Va. 1973), 359 F.Supp. 404, in which that court directed the Corps of Engineers to prepare and file with all appropriate agencies a supplement to the final EIS which would more fully explain and inform those interested of the methods used by the Corps of Engineers to determine the benefit-cost ratios and to discuss in more detail the questions of navigability and the effect of the dam on a down-stream fishery, should the river be declared to be non-navigable. Defendants requested and the Court granted defendants leave to prepare and file a supplement to the EIS. Such supplement together with an appendix was timely filed.

After the conclusion of the evidentiary hearing plaintiffs filed suggestions in which they requested that we make 122 findings of fact and 38 conclusions of law in connection with questions which plaintiffs contend are for this Court's determination. Plaintiffs filed a memorandum of law in support of their proposed findings and proposed conclusions.

Plaintiffs argued, apparently in summation of their voluminous requested findings and suggested conclusions, that "the deletion of the hydropower unit of the Truman Dam is a viable and reasonable alternative . . . and that therefore the alternatives of the dry-lake dam, or small-lake dam, designed for different sets of operating policies, are also reasonable and viable alternatives." And, apparently as an independent argument, plaintiffs contended that "various statements of fact set forth in the EIS, including some socio-economic, recreational and environmental data have no scientific basis or support in the EIS or any scientific literature." On page 2 of their post-trial brief, plaintiffs summarized their arguments by stating:

Plaintiffs have defined the three basic issues of the EIS inadequacies as follows: (1) the failure to disclose the true facts about the economics of the hydropower unit; (2) the failure to discuss the alternative of deleting the hydropower unit and, as a consequence, the failure to discuss, explore and investigate the dry-lake dam and small-lake dam alternatives, and the environmental impacts of these alternatives and to compare those impacts with the adverse impacts of the proposed project, and the failure to disclose the benefits and costs of these alternatives; and (3) the failure of the EIS to disclose or discuss any scientific basis for certain socio-economic, recreational and other environmental data and statements set forth in the EIS in support of the claims of economic and environmental benefits of the proposed project. Memorandum of law filed August 10, 1973, p. 2

Plaintiffs concede, as they must, that the final EIS, pp. V-16 to V-20, did in fact discuss "the various alternatives suggested by plaintiffs and others." They argue, however, that such discussion is inadequate as a matter of law, contending that the factual circumstances in this case are comparable to those involved in Environmental Defense Fund v. Froehlke (8th Cir. 1972), 473 F.2d 345 (Cache River case). In regard to their argument that "much of the recreational and socio-economic discussion in the EIS is without any scientific or factual basis in fact," plaintiffs cite and rely upon Environmental Defense Fund, Inc. v. Corp. of Eng., United States Army (8th Cir., 1972), 470 F.2d 289 (Gillham Dam case).

Plaintiffs' voluminous proposed findings of facts are generally divided into three sections: I—Hydropower Economics; II—Inadequacy of Discussion of Flood Control Alternatives, e. g., drydam or small-lake and the Environmental Impacts of these Alternatives; and III—Failure of the EIS to Provide a Scientific Basis for Certain Sociological and Environmental Data.

Particular of the proposed findings under each section reveal that plaintiffs implicitly concede that the subject matter of a particular proposed finding was in fact discussed in the final EIS but plaintiffs implicitly contend that such discussion failed to give the...