Environmental Defense Fund, Inc. v. Hoffman
| Decision Date | 25 October 1977 |
| Docket Number | Nos. 76-1366,76-1431,s. 76-1366 |
| Parties | , 8 Envtl. L. Rep. 20,057 ENVIRONMENTAL DEFENSE FUND, INC., Pratt Remmel, Jr., and Mrs. Gale Eddins, Appellants, v. Martin R. HOFFMAN, Secretary of the Army, General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of U. S. Army, and Cache River-Bayou DeView Improvement District, Appellees. Arkansas Game and Fish Commission, Intervenor-Plaintiff. John Getson, S. L. Simpson, Anderson Wells, F. D. Munger, Owen Burton, John Connor, Donald Cain and Raymond Carloch, Intervenor-Defendants. ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Martin R. HOFFMAN, Secretary of the Army, General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of U. S. Army, Cache River-Bayou DeView Improvement District, John Getson, S. L. Simpson, Anderson Wells, F. D. Munger, Owen Burton, John Connor, Donald Cain, and Raymond Carloch, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James T. B. Tripp, Environmental Defense Fund, New York City, for Environmental Defense Fund and Ark. Game and Fish Com'n; G. William Lavender, Texarkana, Ark., on the brief.
William G. Peterson, Sp. Asst. Atty. Gen., St. Paul, Minn., for State of Ark.
Glen R. Goodsell, Land and Natural Resources, Appellate Section, Dept. of Justice, Washington, D. C., for appellees; G. D. Walker, Jonesboro, Ark., on brief for appellees, Cache River-Bayou DeView Improvement Dist., John Getson and other intervening landowners; Peter R. Taft, Asst. Atty. Gen., Washington, D. C., W. H. Dillahunty, U. S. Atty., and Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark.; Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., Richard M. Adelman, Dist. Counsel, Corps of Engineers, Memphis, Tenn., Michael A. McCord, Atty., Dept. of Justice, Washington, D. C., on briefs, for federal appellees.
Bill Clinton, Atty. Gen., Little Rock, Ark., and William G. Peterson, Dept. of Natural Resources, St. Paul, Minn., filed amicus brief of State of Ark. in case no. 76-1366.
John C. Danforth, Atty. Gen., State of Mo., Cyril M. Hendricks, Atty., Dept. of Conservation, Jefferson City, Mo., Bronson C. La Follette, Atty. Gen., State of Wis., Theodore L. Priebe, Asst. Atty. Gen., Madison, Wis., Warren R. Spannaus, Atty. Gen., State of Minn., William G. Peterson, Sp. Asst. Atty. Gen., St. Paul, Minn., Richard C. Turner, Atty. Gen., State of Iowa, Clifford E. Peterson, Sp. Asst. Atty. Gen., Des Moines, Iowa, William J. Scott, Atty. Gen., State of Ill., Richard W. Cosby, Asst. Atty. Gen., Springfield, Ill., filed amicus briefs for the States of Minn., Ill., Mo., Wis. and Iowa in case no. 76-1431.
Before HEANEY and STEPHENSON, Circuit Judges, and STUART, District Judge. *
The principal question raised on this appeal is whether the final revised environmental impact statement (EIS), 1 filed by the Corps of Engineers in conjunction with the Cache River-Bayou DeView Channelization Project, complies with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., (NEPA) and the mandate of this Court in Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972). The trial court concluded that the EIS fully complied with NEPA and that the action of the Corps in deciding to proceed as proposed in the EIS was not arbitrary and capricious. Accordingly, the trial court vacated an injunction it had previously issued restraining any construction on the project and dismissed the complaint. We affirm.
This is the second time the Cache River Project has been before this Court. The project involves clearing, realigning, enlarging and rechanneling, for flood control and drainage purposes, over two hundred and thirty-one miles of the Cache River, its upper tributaries and its principal tributary the Bayou DeView. This public works project is presently estimated to cost the federal government over ninety-three million dollars. 2 The lengthy history of the project, which was first authorized twenty-seven years ago, 3 was outlined by this Court in Environmental Defense Fund, Inc. v. Froehlke, supra at 348. In that case, this Court reviewed the first EIS filed by the Corps in connection with the project and found it to be in violation of NEPA, the guidelines adopted by the Council on Environmental Quality (CEQ) and the regulations of the Corps itself. The Corps was ordered to submit a revised EIS and the trial court was ordered to grant appropriate injunctive relief. Id. at 356. On March 16, 1973, the trial court issued an injunction restraining any further construction pending the preparation of a revised EIS by the Corps. About four miles of the project had been completed at the time the injunction was filed.
Congress authorized a modification of the project in the Water Resources Development Act of 1974, Pub.L.No.93-251, § 99, 88 Stat. 41 (1974), in accordance with the Report of the Chief of Engineers, Department of the Army, Modification of Cache River Basin Feature, Mississippi River and Tributaries Project, Arkansas, H.Doc.No. 92-366, 92d Cong., 2d Sess. (1972). The Act authorized acquisition by fee or easement of not more than seventy thousand acres of Cache River Basin bottomlands to mitigate fish and wildlife resource losses as a result of the project. At least thirty thousand acres of the mitigation lands are to be available for public use. Federal expenditure for the mitigation lands is not to exceed seven million dollars. The Act further provides that "(n)o less than 20 per centum of the funds appropriated each fiscal year for the Cache River project shall be appropriated to implement mitigation until the full mitigation amount has been appropriated."
On November 8, 1974, the Corps filed a final revised EIS, which consisted of six volumes including appendices, with the CEQ and the trial court. Soon thereafter, the federal defendants filed a motion to dissolve the injunction and dismiss the complaint. They later also filed a motion for summary judgment. The trial court denied these motions and directed the parties to proceed with discovery. In November, 1975, the trial court held an extensive four-day hearing on the merits of the revised EIS at which more than twenty persons testified and numerous exhibits were presented. Briefs were filed by the plaintiffs, 4 the federal defendants, 5 the intervenors 6 and the amicus curiae. 7 On March 22, 1976, the trial court filed its memorandum opinion discussing each of the issues raised by the plaintiffs with respect to the adequacy of the final revised EIS. It concluded that the revised EIS satisfied the requirements of NEPA, the guidelines of the CEQ and the regulations of the Corps; that the revised EIS formed an adequate basis on which the decision to proceed with the project could be made; and that the decision to proceed itself was not arbitrary and capricious. It then vacated the injunction it had previously issued restraining any construction on the project and dismissed the complaint. This appeal followed. Since the filing of this appeal, several events of significance to the issues raised have occurred.
On November 26, 1976, a contract was awarded for construction on the next upstream segment of three and one-tenth miles. On March 21, 1977, this Court refused to enjoin construction of this segment pending appeal. Construction is presently underway on the three and one-tenth-mile segment which is expected to be completed by the end of November, 1977.
Approximately one hundred and twenty acres of mitigation land has been purchased. Over fifteen thousand acres of mitigation land are scheduled for acquisition by mid-1978, subject to the availability of funds.
On February 21, 1977, President Carter announced a major review of all water resource projects in connection with the budget for fiscal year 1978. Water Resource Projects: The President's Message to Congress Recommending Deletion of Funds for 19 Projects from the 1978 Fiscal Year Budget, 13 Weekly Comp. of Pres.Doc. 234 (February 21, 1977). The Cache River Project was one of nineteen major water resource projects which were initially identified as unsupportable on "economic, environmental, and/or safety grounds." The President instructed the Secretaries of the Interior, the Army and of Agriculture to work with the CEQ and the Office of Management and Budget in carrying out a complete evaluation of each of the nineteen water resource projects questioned by the President. Representatives from each agency initially screened the projects and it was determined that the Cache River Project required a more extensive review. Data was compiled to provide a detailed data base for each of the projects requiring further evaluation. 8
In connection with this review, a public hearing lasting more than nine hours was held in Jonesboro, Arkansas, which is located within the project area. Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978: Hearings before a Subcomm. of the Comm. on Appropriations House of Representatives 95th Cong., 1st Sess. 256 (1977) (hereinafter cited as Public Works ). Approximately two thousand two hundred persons attended the hearing. Id. at 256-260. Two hundred and sixty-seven individuals spoke at the public hearing; twenty-six spoke in opposition to the project. 9
The Cache River Project was found, by the representatives of the reviewing agencies, to meet all of the economic, environmental and safety criteria established. Nonetheless, the President recommended the deletion of funding for the project, the deauthorization of the project and that consideration be given to the protection of the remaining bottomland habitat. Public Works, supra at 3-5, 12. The following were listed as factors in the President's decision:
The project would accelerate clearing and drainage of over 110,000 acres of bottomland forest and wooded swamp one of the last such areas in...
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