Johnson v. U.S. Army Corps of Engineers, 98-1328 MJD/AJB.

• Decision Date: 01 June 1998
• Docket Number: No. 98-1328 MJD/AJB.,98-1328 MJD/AJB.
• Citation: 6 F.Supp.2d 1105
• Parties: Gary B. and Sharron JOHNSON, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

6 F.Supp.2d 1105

Gary B. and Sharron JOHNSON, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. 98-1328 MJD/AJB.

United States District Court, D. Minnesota.

June 1, 1998.

Hans I.E. Bjornson, Leonard, Street & Deinard, P.A., Minneapolis, MN, for Plaintiffs.

Friedrich A.P. Siekert, Assistant United States Attorney, United States Army Corps of Engineers, Togo D. West, Jr., Lieutenant General Joe N. Ballard, Lieutenant Colonel William J. Breyfogle, Minneapolis, MN, for Defendants.

David Olin, Pennington County Attorney, Thief River Falls, MN, for Pennington County.

MEMORANDUM OPINION AND ORDER

DAVIS, District Judge.

Plaintiffs seek a temporary restraining order and/or a preliminary injunction: suspending the permits issued by the U.S. Army Corps of Engineers (the "Corps") to the Red Lake Band of Chippewa Indians (the "Band") and Pennington County for the River Road Phase III Project (the "Project"); ordering Pennington County to withdraw its motion to acquire title and possession of the Johnsons' property, currently scheduled for May 22, 1998; enjoining any action in furtherance of the condemnation proceedings against the Johnsons' property.

Background

Plaintiffs are farmers, landowners and residents of Pennington County. Complaint ¶ 1. Plaintiffs oppose the Project, as permitted, because it would result in the needless destruction of approximately 30 acres of wetland. Id. The Project would also sever the Plaintiffs' farm in two, causing disruption to their farming operations. Id. Plaintiffs assert, however, that they brought this action because of their interest in preventing the unnecessary filling of wetlands, and not because of any financial interest they may have in the outcome. Id.

The Project is the third phase of a realignment and reconstruction of BIA Route 19, located on the Red Lake Indian Reservation and in Pennington County. Complaint ¶ 9. The Project was proposed by the Band, and is being undertaken by the Band, the United States Bureau of Indian Affairs (the "BIA") and Pennington County. Id. ¶ 10. The BIA had the Band prepare an environmental assessment ("EA") for the Project, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Id. ¶ 11.

The EA's identify six alternatives for the site of the Project. Id. ¶ 19. One alternative is the "No action" alternative. Id. Of the remaining alternatives, two are off-Reservation (Alternatives 1 and 2) and three are on-Reservation (Alternatives 3, 4, and 5). Id. The off-Reservation sites upgrade and/or intersect the existing road system and result in the filling of less than an acre of wetland, while the on-Reservation sites bypass the local road system and require the filling of approximately 22 to 31 acres of wetland. Id. One of the on-Reservation sites, Alternative 5, was identified as the Preferred Alternative. Id.

Plaintiffs allege that as stated in the draft EA's and the Final EA, the purpose of the Project is to address safety and traffic concerns that stem from the fact that the existing roads are narrow, contain sharp turns and have sand and gravel surfaces. Id. ¶ 13. Also, there is increased traffic between the Red Lake Reservation and Thief River Falls, the closest large town and the location of the casino owned by the Band. Id. In the Draft EA, it was concluded that "all alternatives would provide the desired trafficability and safety elements for the roadway." Id. ¶ 22.

One of the off-Reservation sites, Alternative 2, follows existing road alignments and requires construction of a new road segment which was placed directly in the path of an existing home and associated outbuildings. Id. ¶ 23. In February 1996, Plaintiffs submitted comments to the Draft EA. Id. ¶ 24. In the comments, Plaintiffs proposed a Modified Alternative 2, which follows essentially the same path as the Alternative 2, but avoids the home and outbuildings that would be affected. Id. Plaintiffs also noted in their comments that under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, a permit may not be issued for a project if a practicable alternative exists that has a less adverse effect on wetlands. Id. ¶ 25. Plaintiffs argued that as Alternative 5 would require the filling of approximately 30 acres of wetland, whereas Modified Alternative 2 would only affect an acre of wetland and meet the purposes of the Project, Modified Alternative 2 is a practicable alternative under the Clean Water Act, and a permit should not issue for Alternative 5. Id.

The Final Draft EA was issued on April 16, 1996. Plaintiffs' Ex. 4, Final Draft EA. Like the Draft EA, the Final Draft EA identified six alternatives, and found that all proposed alternatives would provide the desired trafficability and safety elements for the roadway. Id. at 29. Alternative 5 was again established to be the Preferred Alternative. Id. at 30. Because the Preferred Alternative required the filling of approximately 30 acres of wetland, the Band applied to the Corps for a Section 404 permit. Complaint ¶ 28. On May 23, 1996, the Corps issued a public notice of the Band's application. In response, Plaintiffs submitted comments to the Corps. Id. ¶ 29.

The Final EA was issued in January 1997. Plaintiffs' Ex. 6. Like the prior drafts, the Final EA identified Alternative 5 as the Preferred Alternative. Id. at 30. In determining which alternative to choose, the following factors were considered in all drafts of the EA and the Final EA: land resources; water resources; living resources; air quality; cultural resources; socioeconomic conditions; resource use patterns; and other values. Id. at 10-16. Alternative 5 was determined to be the Preferred Alternative based on a determination that it had little impact on socioeconomic resources and that the impact on wetlands was slight when considering the value of the resource and its position relative to the general resource base of the Red Lake Reservation. Id. at 30. Alternatives 1 and 2, on the other hand, had been determined to have an unacceptable impact on the socioeconomic resource. Id. at 29. Specifically, Alternative 2 would result in the loss of 75 acres of agricultural land, which could result in considerable loss of income to individual farmers affected. Id. at 19. It was also noted that acquisition of such acreage would be costly, and would be ultimately footed by the taxpayers. Id. Finally, Alternative 2 would displace a home and associated outbuildings, at substantial cost. Id.

Appended to the Final EA is a document entitled "Response to Comments on the Environmental Assessment of the River Road Phase III Project." Complaint ¶ 34. Plaintiffs assert that in this document, the Band contradicts the conclusion in the Final EA that all alternatives met the trafficability and safety concerns of the Project, by stating that only the on-Reservation alternatives are practicable "since they serve to limit the number of intersections with local roads and access points." Id. ¶ 34; Plaintiffs' Ex. 6, Final EA, App. 1 at 15.

On April 28, 1997, the District Engineer issued a Department of the Army Permit Evaluation and Decision Document, which authorized the issuance of Section 404 permits for the Project. Plaintiffs' Ex. 8. In reaching the conclusion that the issuance of the permits would not be contrary to the public interest, the District Engineer reviewed the Final EA, comments from agencies such the U.S. Environmental Protection Agency, the Minnesota Pollution Control Agency, U.S. Fish and Wildlife Service, the State Department of Natural Resources, the State Historic Preservation Officer, the Minnesota Audubon Society, State Representatives, Plaintiffs and the Band. Id. Based on the review of the above material, the District Engineer rejected the off-Reservation alternatives based on the determination that such alternatives were not practicable alternatives in terms of accomplishing public safety. Id., at 21. In reaching this decision, the Corps adopted the positions of the Band, the BIA and Pennington County, that bypassing the existing road system would eliminate conflicts between local and through traffic, which better promotes public safety. Id. Thereafter, the District Engineer issued to the Band and Pennington County Section 404 permits to begin construction of the Project. Complaint ¶ 40. Plaintiffs requested reconsideration of the District Engineer's issuance of such permits, which was denied by the District Engineer on August 8, 1997. Id.

The BIA and the Band agreed not to proceed with the Project until Pennington County had acquired the necessary right of way for the portion of the Project located in the county. Complaint ¶ 43. To accomplish this goal, Pennington County commenced condemnation proceedings in the Ninth Judicial District, State of Minnesota, to acquire from the Plaintiffs a highway easement for construction of the Project. Id. ¶ 44. The hearing on the condemnation motion was scheduled for May 22, 1998. Id. ¶ 45. Plaintiffs allege in their Complaint that if Pennington County is authorized to take their property, Plaintiffs will be irrevocably deprived of their property, subject to their right to appeal, and that they will be irreparably harmed by the loss of wetlands. Id., ¶ 47.

In Count I of their Complaint, Plaintiffs allege that pursuant to the Clean Water Act, ("CWA"), 33 U.S.C. § 1344, only the Secretary, defined as the Secretary of the Army, acting through the Chief of Engineers, may issue permits, for the filling in of wetlands. Id. ¶ 49. Plaintiffs argue that as the statute does not allow for the subdelegation of issuances of permits from the Chief Engineer to the District Engineers, the permits at issue in this case are invalid. Id.

In Count II, Plaintiffs allege that the District Engineer's rejection of the Alternatives was "arbitrary, capricious or an abuse of discretion." Complaint ¶ 57. Plaintiffs allege that the CWA does not authorize the filling of wetlands if there...