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

• Decision Date: 04 August 1972
• Docket Number: No. EC 72-11-K.,EC 72-11-K.
• Citation: 348 F. Supp. 916
• 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 — Northern District of Mississippi

348 F. Supp. 916

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

No. EC 72-11-K.

United States District Court, N. D. Mississippi, E. D.

August 4, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard S. Arnold, Texarkana, Ark., Jon T. Brown, Washington, D. C., Roderick Cameron, East Setauket, N. Y., for plaintiffs.

Irwin Goldbloom and A. T. Giattina, Dept. of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Richard P. Appleton, Corps of Engineers, Washington, D. C., Alfred P. Holmes, Jr., Corps of Engineers, Mobile, Ala., for defendants.

Hunter M. Gholson, Columbus, Miss., John H. Gullett, Washington, D. C., for defendant-intervenor, Tennessee-Tombigee Waterway Authority.

Fred M. Bush, Jr., Tupelo, Miss., for defendant-intervenor, Tombigee River Valley Water Management District.

MEMORANDUM OPINION

KEADY, District Judge.

On May 25, 1971, the President of the United States presided over the dedication and ground breaking ceremony at Mobile, Alabama, of the Tennessee-Tombigbee Waterway, a navigation project in Alabama and Mississippi which Congress authorized in 1946.¹ By this project the Army Corps of Engineers was authorized to construct a waterway connecting the north-flowing Tennessee River with the south-flowing Tombigbee River so as to provide a continuous waterway from the Tennessee, upper Mississippi and Ohio Valleys to the tidewater port of Mobile, on the Gulf of Mexico. The waterway, when completed, is expected to become a new, inter-regional trade route between the Gulf Coast and much of the mid-continent region of the United States. The initial phase of the work, scheduled to commence in October 1971, involves the construction of a lock and approach canal at Gainesville, Alabama.

I.

(a) Nature of the Project.

The waterway, as set forth in the general design document, extends from Demopolis, Alabama, on the existing canalized Black Warrior-Tombigbee Waterway, 217 miles from Mobile, upstream via the Tombigbee River, East Fork of the Tombigbee, Mackeys Creek, a deep cut through the divide into Yellow Creek, thence via Yellow Creek to mile 215 on the sailing line of the Tennessee River in Pickwick Pool near the common boundary of Alabama, Tennessee, and Mississippi. The overall project length, Demopolis to the Tennessee River, corrected for proposed cutoffs, is 253 miles. County route map is appended as Exhibit "A".

The project is divided into three reaches. The river section extends from Demopolis for 168 miles to a point just south of Amory, Mississippi. The plan for that reach includes channel improvement and a series of four conventional locks and dams. For the next 45 miles, the waterway will consist of a canal parallel to the river and separated therefrom by levees. The difference in elevation in that reach will be overcome by five canal locks. The canal terminates at Bay Springs lock and dam in Mackeys Creek, where the waterway will be lifted 84 feet to the pool elevation of the Pickwick reservoir on the Tennessee River. From the pool of the Bay Springs lock and dam a deep cut will be made through the ridge to the Pickwick pool on the Tennessee River, via its tributary, Yellow Creek. Length of the divide section is 40 miles, including the 27-mile-long cut through the ridge. Overall difference in elevation between Demopolis and Pickwick pools is 341 feet, to be overcome by the 10 locks, referenced above.

The plan provides for lock chamber dimensions of 110 by 600 feet. Authorized depths are 9 feet in the river section and 12 feet in the canal and divide sections. Authorized bottom width is 300 feet except in the actual divide cut, where the authorized width is 280 feet.

The waterway project will require the commitment of approximately 70,000 acres of land which presently are in forest or are used for agricultural pursuits. Of this amount about 24,000 acres would be fully committed, with the remainder committed in varying degrees. The land, which is presently planned to be procured by permanent easement, will not be completely removed from the agricultural and forest base. The bottom land hardwood and other forest areas which are cleared or inundated will be lost for future timber production. About 40,000 acres of artificially impounded water surface will be created as a result of the project, and within the confines of the newly established lakes about 170 miles of tributary streams and 140 miles of the main stem of the Tombigbee River will lose their identity as free-flowing streams. However, the dams on the waterway will be "run-of-the-river" dams built for low retention and subject to complete inundation in flood seasons. Admittedly, the project will have significant effects, some adverse and others beneficial, upon the quality of the environment in its present setting.

(b) Nature of Litigation and Prior Proceedings.

The present litigation began on July 14, 1971, upon the filing of a class action in Federal District Court for the District of Columbia against the Corps of Engineers, the Secretary of the Army and Chief of Engineers to restrain them from initiating or continuing with the construction of the project. The named plaintiffs were two organizations, Environmental Defense Fund, Inc. (EDF), a non-profit New York corporation whose membership consists of scientists, environmentalists and other interested citizens throughout the United States, some residing in the project area of Alabama and Mississippi, and the Committee for Leaving the Environment of America Natural (CLEAN), a nonprofit unincorporated association located at Starkville, Mississippi, whose membership is composed of Mississippi and Alabama residents who enjoy and are interested in preserving the natural environment of the Tombigbee region, and a single individual, James D. Williams, an assistant professor of biology at Mississippi State College for Women and a resident of Columbus, Mississippi. The complaint set forth seven independent causes of action charging that the defendants had violated various federal statutes as well as the Constitution by proceeding with the project.²

On September 15 and 16, an evidentiary hearing on plaintiffs' motion was held in Washington, D. C., before United States District Judge John Lewis Smith, Jr. Judge Smith concluded from the evidence that plaintiffs made a "substantial showing of a likelihood" that the defendants, in the project's planning, design and development and in making the decision to construct the waterway, had not fully complied with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, et seq., and the Fish and Wildlife Coordination Act of 1934 as amended, 16 U.S.C. § 661, et seq. Finding that plaintiffs would suffer irreparable injury, the court on September 21 issued the preliminary injunction requested.

After the federal defendants answered the complaint, Tennessee Tombigbee Waterway Development Authority, a multi-state corporate body chartered by Congress to promote the waterway, with headquarters at Columbus, Mississippi, and Tombigbee River Valley Water Management District, a corporate body organized under Mississippi law and composed of twelve counties in northeast Mississippi interested in developing the project, with leave of the court, were admitted as defendant-intervenors.³

Upon the joint application of defendants and defendant-intervenors, Judge Smith, on January 31, 1972, transferred the case to this court under 28 U.S.C. § 1404a, by finding the transfer to be for the convenience of the parties and witnesses and in the interest of justice.

Following pretrial conference and the issuing of a ruling on certain discovery matters in controversy, the court on April 13, held a preliminary hearing on defendants' motion to dismiss certain portions of the complaint or in the alternative for partial summary judgment in their favor. After full arguments, the court dismissed as legally insufficient all of plaintiffs' asserted causes of action other than the first cause of action based on NEPA and scheduled an evidentiary hearing to determine whether the provisions of that statute had been complied with.⁴

Beginning June 19, the court conducted a 7-day evidentiary hearing at Aberdeen, Mississippi, and received extensive proof from all parties. The case is now ripe for decision, after oral argument and briefs of counsel, and this Memorandum Opinion shall suffice for findings of fact and conclusions of law as required by Rule 52, F.R.Civ.P.

II.

Several distinct issues are presented in this environmental litigation. Broadly stated, plaintiffs contend that they should prevail for either of two reasons, viz.: (1) the actions of the defendants in recommending the Tennessee-Tombigbee Waterway, and the decision to proceed with its construction, violate the substantive environmental policies of the nation as declared in § 101 of the Act; and (2) the defendants, in their study and planning of the project and reporting and recommending it to the ultimate decision-makers —in this case the Congress and the President—failed to adhere to the procedures required by § 102. For reasons that follow, the court holds that the plaintiffs, although possessing requisite standing to sue, fail on both issues and are not entitled to any relief on their complaint.

(a) Plaintiffs' standing to sue.

The evidence adduced establishes that Dr. Williams, the individual plaintiff, has used the Tombigbee River for both recreational and scientific purposes, enjoying the natural state of the region in proximity to his place of residence; that CLEAN's membership consists of 60 to 70 persons residing near the project area who fish, hunt and engage in other recreational pursuits made possible by the Tombigbee; and that EDF's membership includes environmentalists, like Dr. Williams, who live close to the project area and make scientific and recreational use of the...