Environmental Defense Fund, Inc. v. Alexander, EC 77-53

• Decision Date: 12 March 1979
• Docket Number: No. EC 77-53,77-54-K.,EC 77-53
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., Committee for Leaving the Environment of America Natural, Glenn H. Clemmer, G. Randall Grace, and F. Glenn Liming, Plaintiffs, National Audubon Society, Birmingham-Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants. LOUISVILLE AND NASHVILLE RAILROAD, Plaintiff, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.
• Court: U.S. District Court — Northern District of Mississippi

467 F. Supp. 885

ENVIRONMENTAL DEFENSE FUND, INC., Committee for Leaving the Environment of America Natural, Glenn H. Clemmer, G. Randall Grace, and F. Glenn Liming, Plaintiffs, National Audubon Society, Birmingham-Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.

LOUISVILLE AND NASHVILLE RAILROAD, Plaintiff, National Audubon Society, Birmingham Audubon Society, and the Alabama Conservancy, Intervening Plaintiffs, v. Clifford R. ALEXANDER, the United States Army Corps of Engineers, and Major General John Morris, Defendants, Tombigbee River Valley Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama, and Tombigbee Valley Development Authority, Intervening Defendants.

Nos. EC 77-53, 77-54-K.

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

March 12, 1979.

H. M. Ray, U. S. Atty., Oxford, Miss., Hunter M. Gholson, Columbus, Miss., for Tennessee-Tombigbee Waterway Development Authority.

Ralph Pogue, Aberdeen, Miss., for Tombigbee River Valley Water Management Dist.

Jerry L. Weidler, Asst. Atty. Gen., Montgomery, Ala., for State of Alabama.

Jon T. Brown, Stephen E. Roady, Duncan, Brown, Weinberg & Palmer, Washington, D. C., William A. Butler, Environmental Defense Fund, Washington, D. C., James T. B. Tripp, Environmental Defense Fund, New York City, Joseph V. Karaganis, Chicago, Ill., for Environmental Defense Fund, Inc.

William Robertson, U. S. Army Corps of Engineers, Atlanta, Ga., Ken Powers, Dept. of the Army Corps of Engineers, DAENCCK, Washington, D. C., David H. Webb, Asst. Dist. Counsel, Mobile Dist., Army Corps of Engineers, Mobile, Ala., for Army Corps of Engineers.

Barbara A. Babcock, Dept. of Justice, Glenn V. Whitaker, Edward Christenbury, Lewis K. Wise and Lawrence Moloney, Civil Division, Dept. of Justice, Washington, D. C., for Dept. of Justice.

Joseph L. Lenihan, Louisville, Ky., for Louisville & N. R.

MEMORANDUM OF DECISION

KEADY, Chief Judge.

In 1971 a group of environmentalists challenged the validity of the Tennessee-Tombigbee Waterway (TTW), a navigational project in Alabama and Mississippi which Congress authorized in 1946. The original complaint, asserting six causes of action for alleged violation of various statutes, was dismissed with prejudice by the district court. EDF v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972). The Fifth Circuit on appeal affirmed, 492 F.2d 1123 (1974), and certiorari was not sought.

Now, six years later and after the project is estimated to be about 29% complete and Congress has appropriated almost $600,000,000 toward the construction of the waterway, the project has again been challenged in a broad-scale attack by a coalition of environmentalists and a railroad. Some plaintiffs in the present action were parties in the prior litigation, i. e., Environmental Defense Fund, Inc. (EDF), the Committee for Leaving the Environment of America Natural (CLEAN), and a plaintiff class of individuals aggrieved or detrimentally affected by TTW. Those parties are now joined as plaintiffs by Louisville & Nashville Railroad (L&N) and three plaintiff-in-tervenors, National Audubon Society, Birmingham Audubon Society and the Alabama Conservancy. The principal defendants, as before, are the Secretary of the Army, the Chief of Engineers, and the United States Corps of Engineers (Corps), and parties who have intervened as defendants are Tombigbee River Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama and Tombigbee Valley Development Authority.¹

By this present complaint, plaintiffs assert fifteen causes of action which may be reduced to three primary areas of judicial concern:

1. Plaintiffs contend in Counts I and II that the Corps lacks legal authority to construct the TTW, as it is doing, with a 300' wide navigational channel and other structures requiring major changes in design.

2. In Counts III and V, plaintiffs challenge the Corps' method of calculating costs and benefits as legal justification for continuance of the project by including therein benefits to be derived from major changes in channel width, cut offs and new lock structures of the Warrior-Tombigbee Waterway, a separate project whose improvement has not received congressional authorization. This established navigation project extends from the Port of Birmingham on the Warrior River (known as Black Warrior River from its source to Tuscaloosa and from Tuscaloosa to Demopolis known as Warrior River) (BWT), where it joins the Tombigbee and continues south to the Port of Mobile.

3. The plaintiffs challenge again the Corps' compliance with various environmental statutes, principally the National Environment Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq.²

By their answers, the defendants deny all violations of law and assert that the TTW is being constructed in accordance with law and the Corps' regulations. In addition, defendants plead res judicata, collateral estoppel and laches in bar of the various causes of action now raised by plaintiffs.

After extensive discovery, defendants moved for judgment on the pleadings or, in the alternative, for summary judgment on the principal issues raised by the complaint. Plaintiffs submitted a cross-motion for summary judgment directed, basically, to the authorization, economic and environmental questions. Each motion for summary judgment was accompanied by copious affidavits, depositions and other evidentiary materials which, in our judgment, render the case, which is admittedly of a complex nature, incapable of summary disposition.

Therefore, the court calendared for full evidentiary hearing a basic claim raised for the first time in this litigation, not within the scope of the original complaint and hence not adjudicated in the prior action; namely, the legality of TTW as constructed by the Corps since 1971 because the Corps is allegedly exceeding the physical dimensions of the legally authorized project and making other design changes in excess of authority. Indeed, in the initial litigation plaintiffs stipulated that the authorized bottom width for the project was 300' except in the actual divide cut, where the authorized width was 280'. Neither did the plaintiffs challenge that the plan provided for lock chamber dimensions of 110 × 600' and that authorized depths were 9' in the river section and 12' in the canal and divide sections. It is upon these physical aspects of the waterway, together with the substitution of a chain of lakes concept for a perched canal in the canal section, that plaintiffs mount their main attack upon the sufficiency of congressional authorization for the waterway. Although plaintiffs in the former case raised no issue as to what were the legally authorized dimensions of the TTW, nevertheless, the question is of basic importance, transcending all others which plaintiffs now assert. If TTW, as it is being constructed, is not a legally authorized project, all other issues are mooted until such time as proper authorization may be obtained from Congress. The authority of the Corps, therefore, to construct the TTW in accordance with the present, ongoing plan is fundamental to a proper determination of the case.

I.

(a) Nature of the TTW Project.

After previous adverse reports, the original survey of the TTW is found in House Document 269, 76th Cong., 1st Sess., where the Chief of Engineers, on February 27, 1939, reported to Congress for the Rivers and Harbors Board of Engineers, recommending

that the United States undertake the construction of a waterway to connect the Tennessee and Tombigbee Rivers, by way of the East Fork of the Tombigbee River, Mackeys Creek, and Yellow Creek, so as to provide a channel of not less than 9 feet in depth and a minimum bottom width of 170 feet in river and canal sections and 115 feet in the divide cut, with locks approximately 75 by 450 feet clear inside dimensions, substantially in accordance with the general plan presented in the report.

House Document 269 is a detailed analysis of the then existing navigation projects affecting the TTW and of the present and prospective commerce derived from navigation on the TTW.³ It reported that the "improvement desired is a navigable waterway of dimensions which would permit modern barge-line operation between the Tennessee and Tombigbee Rivers." H. Doc. 269, ¶ 20, p. 16. It was recommended that the plan be divided into three parts, namely: the river section 180 miles in length, the canal section 41 miles in length, and the summit or divide cut 30 miles in length, with the dimensions of the channel width, depth and locks to be as above stated. Id. ¶ 30, p. 18. These dimensions were recommended since the 75 by 450' lock could take care of an "economic standard tow consisting of five 35 by 145 foot barges and a towboat," and the "channels would be adequate to provide for double lane navigation for the standard tow, assuming 8-foot draft." Id. ¶ 32, 33, p. 19; see also ¶ 113, 114 and 115, p. 68.

The foregoing recommendations were approved by Congress, with modifications, by House Document 486, 79th Cong., 2nd Sess., adopted January 2, 1945. In view of the growth of the bargeborne traffic during intervening years, that document

led the Board of Engineers for Rivers and Harbors to conclude that maximum economy for the proposed waterway can be attained by the provision of channels and locks with somewhat larger dimensions than have hitherto been recommended for a project connecting the Tombigbee and Tennessee Rivers. The Board's reexamination of prospective navigation requirements

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