Environmental Defense Fund v. Corps of Eng. of US Army, LR-70-C-203.

• Decision Date: 19 February 1971
• Docket Number: No. LR-70-C-203.,LR-70-C-203.
• Citation: 325 F. Supp. 749
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., the Ozark Society, Arkansas Audubon Society, Inc., Arkansas Ecology Center, Pratt Remmel, Jr., and Russell Harper v. CORPS OF ENGINEERS OF the UNITED STATES ARMY, Stanley R. Resor, Secretary of the Army, and General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of the United States Army.
• Court: U.S. District Court — Eastern District of Arkansas

325 F. Supp. 749

ENVIRONMENTAL DEFENSE FUND, INC., the Ozark Society, Arkansas Audubon Society, Inc., Arkansas Ecology Center, Pratt Remmel, Jr., and Russell Harper v. CORPS OF ENGINEERS OF the UNITED STATES ARMY, Stanley R. Resor, Secretary of the Army, and General Frederick B. Clarke, Chief of Engineers, Corps of Engineers of the United States Army.

No. LR-70-C-203.

United States District Court, E. D. Arkansas, W. D.

February 19, 1971.

COPYRIGHT MATERIAL OMITTED

Richard S. Arnold, Texarkana, Ark., Edward Lee Rogers, Stony Brook, N. Y., for plaintiff.

W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for defendants.

MEMORANDUM OPINION NUMBER FIVE

EISELE, District Judge.

This case was tried to the Court on its merits on February 8, 9 and 10, 1971. At the conclusion of the trial, the case was argued orally by the attorneys. The parties were then given until February 16, 1971, within which to submit proposed findings of fact and conclusions of law. Upon receipt thereof the case was taken under submission by the Court. This opinion will constitute the Court's fifth and final memorandum in this case.

In its letter memorandum of December 22, 1970, the Court stated:

"The Court has concluded that there is a substantial controversy between the parties and, further that at least in one respect (see infra) there is a reasonable probability that the plaintiffs will succeed after final hearing upon the merits, unless, prior thereto, the defendants voluntarily take certain administrative action as discussed below.

* * * * * *

"The Court wishes to make clear, initially, that the pendency of this action should not be considered, in any way, as limiting the authority of the defendants to proceed administratively in order to fully comply with any requirement of law.

"As the Court views this case, the ultimate decisions must be made not by the judiciary but by the executive and legislative branches of our government. This Court does not intend to substitute its judgment as to what would be the best use of the Cossatot River and its environs for that of the Congress or those administrative departments of the executive branch which are charged by the Congress with the duty of carrying out its mandate. The role of the Court is simply to require compliance with the laws enacted by the United States Congress."

Later in that opinion the Court stated:

"The only `cause of action' with respect to which the Court believes that the plaintiffs will probably prevail at the hearing upon the merits (unless the defendants prior thereto take certain administrative action) is that characterized as the `First Cause of Action' in the complaint — that is, the claim arising under, and by virtue of, the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq."

On January 21, 1971, the Court filed its "Memorandum Opinion Number Four," which dealt specifically with plaintiffs' "First Cause of Action," which is based upon the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq., (hereinafter referred to as NEPA). At page 9 of that opinion the Court stated that the testimony "left the general impression with the Court that, if no work had been done on the Gillham Dam project, the defendants would be approaching the environmental impact study with a different, more open-minded, attitude." This determination was reinforced and documented by the testimony introduced at the trial on the merits.

Much weight was given by the defendants, both at the original hearing and at the trial on the merits, to the fact that the project was approximately two-thirds completed. In commenting on this point the Court stated in its Memorandum Opinion Number Four:

"The Court is not suggesting that the status of the work should not be considered in determining whether to proceed with the project. It is suggesting that the degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA. Although the attitude of the defendants is understandable, nevertheless, as the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been spent thereon and regardless of the degree of completion of the work."

Later in that memorandum, the Court analyzed the "Environmental Statement" (Plaintiffs' Exhibit 7) and pointed out the various environmental "impacts" suggested by the plaintiffs which had not been evaluated by the defendants or described adequately in the impact statement. The Court concluded:

"In other words, plaintiffs contend that the impact statement simply does not set forth a detailed study and examination of the important environmental factors involved. On the basis of the record and the evidence presented at the preliminary hearing, the Court is inclined to agree. It recognizes, of course, that much investigation and analysis may have been made and considered by the defendants even though not reflected in the impact statement or brought out by defendants' witnesses.

"The factual findings referred to above are, as indicated, based upon the evidence introduced at the first hearing. Those findings, of course, could possibly be changed by other evidence which might be introduced at the hearing on the merits. Furthermore, because of the Court's view of its limited role under the law, as set forth in its third memorandum, none of such findings is in any way binding upon the defendants, or other appropriate administrative agencies, in the making of their own determinations with respect to such factual issues. Ultimately this Court could upset such administrative determinations only if they were not made in the manner required by law or if they were arbitrary and capricious under constitutional standards.

"The Court wishes to emphasize that its findings are not in any way conclusive upon the factual issues referred to. Those findings, based upon the record and the evidence introduced at the preliminary hearing, are intended to indicate those areas wherein the defendants may not have adequately complied with the provisions, policies and objectives of NEPA. They should assist counsel in determining the proof that they may wish to make at the hearing on the merits. In addition, they may assist the defendants in any further administrative studies, investigations, or hearings which they may voluntarily undertake to determine, and record, the environmental impact of the Gillham Dam and reservoir project. Indeed, the defendants may already have made studies, investigations and analyses which would answer the Court's doubts as to their compliance with NEPA. On the other hand, they may wish to undertake, prior to the hearing on the merits, additional studies or hearings in order to demonstrate that they have taken into consideration all significant ecological and environmental data related to this project, as required by law."

No "additional studies or hearings" were undertaken by defendants between the conclusion of the November hearing and the February hearing upon the merits.

On January 21, 1971, the plaintiffs filed a "Motion for Leave to File First Amendment to Complaint." On February 2, 1971, this motion was granted. The amendment set forth the plaintiffs' "Tenth Cause of Action" and "Eleventh Cause of Action." The latter is germane here because it makes explicit the contentions of plaintiffs with respect to the environmental impact statement filed by the defendants on October 5, 1970, after the commencement of the suit. The plaintiffs contend that said statement was not in fact a "detailed statement" within the meaning of § 102 of NEPA, did not adequately and properly cover the subjects required by the statute, and did not substantially comply with the "Interim Guidelines" issued by the Council on Environmental Quality.

Although a "new'`' impact statement was filed by the defendants on January 22, 1971, (Defendants' Exhibit 12), the Court has concluded that the latter is essentially the same as the one filed in October, 1970. Both fall far short of the requirements of the law. The "new" statement does not even treat of problems brought out by the testimony in the November hearing. See discussion below.

Upon the basis of the evidence and the law, the Court now concludes that the plaintiffs are entitled to an order enjoining the defendants from continuing with the Gillham Dam project and, more particularly, with the construction of the embankment across the Cossatot River, unless and until they comply with the provisions of NEPA. A final order is being entered accordingly.

The Court here adopts by reference all findings of fact and conclusions of law contained in each of its prior memoranda, excepting only as same may be inconsistent with, or changed or modified by, the findings and conclusions set forth below.

Before discussing plaintiffs' "First Cause of Action" and "Eleventh Cause of Action," the Court wishes to make explicit its rulings on all other matters.

The Court is of the opinion that the plaintiffs' second, third, and tenth causes of action should be dismissed. This determination means that, of the plaintiffs' eleven asserted "causes of action," the Court is entering its order dismissing all but the first and the eleventh.

In its third memorandum, dated December 22, 1970, the Court indicated its intention to dismiss plaintiffs' fourth, fifth, sixth, seventh, eighth and ninth causes of action. In that opinion it tentatively left open the issues raised by plaintiffs' second and third causes of action. With respect to these causes of action the Court there stated:

"The Court should point out, however, that the plaintiffs also made a substantial showing at the November 24-25 hearing with respect to the alleged non-compliance of the defendants with the

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