McDowell v. Schlesinger, 75 CV 234 W-4.

• Decision Date: 09 July 1975
• Docket Number: No. 75 CV 234 W-4.,75 CV 234 W-4.
• Citation: 404 F. Supp. 221
• Court: U.S. District Court — Western District of Missouri
• Parties: Robert L. McDOWELL et al., Plaintiffs, v. James R. SCHLESINGER, Secretary of Defense of the United States, et al., Defendants, Jackson County, Missouri, Intervenor-Plaintiff.

404 F. Supp. 221

Robert L. McDOWELL et al., Plaintiffs, v. James R. SCHLESINGER, Secretary of Defense of the United States, et al., Defendants, Jackson County, Missouri, Intervenor-Plaintiff.

No. 75 CV 234 W-4.

United States District Court, W. D. Missouri, W. D.

July 9, 1975.

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Joseph E. Stevens, Jr., William H. Bates & Jack D. Rowe, of Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., for plaintiffs.

David M. Proctor, Jr., Asst. U. S. Atty., Kansas City, Mo., Capt. Robert Peters, U.S.A.F., Hq. USAF (TJAG) Washington, D.C., for defendants.

FINDINGS AND OPINION

ELMO B. HUNTER, District Judge.

On November 22, 1974, the United States Air Force (USAF) announced a decision to accomplish a troop and civilian deployment transferring various units to Scott Air Force Base, Illinois (Scott). Included in this decision were the transfer of the Headquarters, Air Force Communications Service (AFCS) from Richards-Gebaur Air Force Base, Missouri (RGAFB) to Scott so that the AFCS could be realigned as a technical service under the Military Airlift Command (MAC), whose headquarters are located at Scott; the transfer to Scott of a squadron of C-130 aircraft presently deployed at Langley Air Force Base, Virginia (Langley); the transfer to Scott of the Environmental Technical Application Center (ETAC); and the transfer to Scott of a functional unit of the Defense Communications Agency, Western Hemisphere (DCA). As a result of these decisions, the USAF will transfer and relocate to Scott approximately 2,992 job positions, which, counting dependents, will result in the move to Scott and its surrounding area of approximately 10,000 persons. The majority of the individuals contemplated to be moved by the USAF are presently located at RGAFB, and attached to Headquarters, AFCS.

The complaint of plaintiffs Robert McDowell, Karyn McDowell, and Local 2127, American Federation of Government Employees (AFL-CIO) (Union) was filed on April 3, 1975. Jackson County, Missouri (County), within whose boundaries RGAFB is located, moved to intervene as a party plaintiff on April 10, 1975. That motion was sustained on May 12, 1975, the defendants filing no objection to the motion. In substance, the complaints assert that the defendants failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970) (NEPA), and the regulations of the Department of Defense (DOD) and the USAF promulgated pursuant thereto, in the decision making process that ultimately resulted in the decision to effect the above-stated realignments, transfers, asd relocations. Plaintiffs request a judgment declaring that the defendants have failed to comply with NEPA, and preliminary and permanent injunctive relief prohibiting the USAF from proceeding with these transfers and realignments until such time as they do comply with NEPA. The ultimate relief requested is a declaration by this Court that the planned relocations and transfers constitute a major federal action significantly affecting the quality of the human environment, and the issuance of an injunction prohibiting the defendants from effecting these transfers and relocations unless and until an environmental impact statement is filed in compliance with the requirements of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(C).

Defendants' answers to the complaint in essence deny that the provisions of NEPA, or of the Department of Defense (DOD) or USAF regulations thereunder were violated, and deny that these moves constitute a major federal action significantly affecting the quality of the human environment. In addition, both in their answers and by separate motions, defendants question, inter alia, the subject matter jurisdiction of this Court, the existence of a case or controversy in the constitutional sense, and the standing of all plaintiffs, including the County, to bring this action.

By agreement of all counsel and the Court, due to the exigencies of the situation and the necessity of quickly resolving this litigation, discovery and all other pretrial matters were expedited, and disposition of all pretrial motions was postponed until the trial of this cause upon the merits of the issues presented. Trial commenced on Thursday, May 22, 1975, and concluded on Wednesday, June 4, 1975, after the presentation of extensive testimony and documentary evidence. This Court thereafter sustained the motion of all plaintiffs to amend their pleadings to conform to the evidence adduced at the trial.¹

On June 5, 1975, this Court announced its decision that the defendants had failed to comply with the requirements of NEPA, and that the planned relocations and transfers constituted a major federal action significantly affecting the quality of the human environment. A preliminary injunction was issued on that date prohibiting the defendants from effecting the planned relocations, transfers, and realignments until such time as they comply with NEPA, and until such time as they prepare and file an environmental impact statement and otherwise comply with § 102(2)(C) of NEPA. The preliminary injunction will expire on the filing of this memorandum opinion, and the filing of the final injunctive order.

The Parties

Plaintiffs Robert McDowell and Karyn McDowell are husband and wife, and are both civilian employees of the USAF at RGAFB, which is located in the southern portion of the greater Kansas City, Missouri metropolitan area. As a result of the proposed move of the Headquarters, AFCS to Scott from RGAFB, these plaintiffs are faced with the termination of their present employment at RGAFB and the resulting choice of accepting similar positions at Scott or remaining in the Kansas City, Missouri area and searching for new employment. Plaintiff Local 2127 American Federation of Government Employees (AFL-CIO) (Union) is the recognized bargaining agent for some of the civil service employees at RGAFB, and asserts that some of its members will be affected by the proposed relocation of Headquarters, AFCS by either being required to move to the Scott area, or by having their job positions terminated.² Intervenor-plaintiff Jackson County, Missouri, a political subdivision of the State of Missouri within which RGAFB is located, contends inter alia that it will suffer a loss of population and tax revenue by the proposed relocations.

Defendants are the Secretary of Defense of the United States, the Secretary of the Air Force, the Air Force Chief of Staff, the DOD and the USAF. The DOD and USAF are agencies of the United States within the meaning of both NEPA and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (APA). As a group the defendants are charged by law with the accomplishment of certain functions of the Department of Defense and the Department of the Air Force, including mission changes, and troop and personnel deployments such as are in issue in this proceeding.

Background of the Controversy

Scott Air Force Base is located in central St. Clair County, Illinois, approximately seven miles from the city of Belleville, Illinois, and approximately twenty-five miles east of the City of St. Louis, Missouri. Although the area surrounding Scott is primarily agricultural, a number of small municipalities lie within thirty miles of the base. Prior to July 1, 1970, the Headquarters, Air Force Communications Service was located at Scott. The AFCS is presently and was at that time a separate major command of the USAF. Its mission is to engineer, provide for and program for, install, operate, maintain, and manage the communications-electronics, meterological, and air traffic control facilities of the USAF; and to provide functional services with regard to NAVAID's (except airfield lighting), air traffic control, and flight inspection. In these capacities, the AFCS serves the USAF and other agencies as directed by the Chief of Staff of the USAF. While Headquarters, AFCS was at Scott, the total job authorizations at that base, including all military and civilian positions attached to any unit there located, was some 9,400 positions.

On July 1, 1970, the AFCS was combined by the USAF with the Ground Electronics Engineering Installation Agency (GEEIA), which was then located at Griffiss Air Force Base, New York (Griffiss). The combined headquarters operation of AFCS and GEEIA was on that date transferred from Griffiss and Scott to Richards-Gebaur Air Force Base, Missouri.

RGAFB is located in the extreme southern portion of the greater Kansas City, Missouri metropolitan area, approximately eighteen miles south of downtown Kansas City, Missouri, and approximately five miles east of the Kansas State line. Approximately one half of the base lies in extreme southwestern Jackson County, Missouri, with the other half lying in extreme northwestern Cass County, Missouri. Immediately surrounding the base in Jackson County is the city of Kansas City, Missouri, and within one mile is located the city of Grandview, Missouri. In Cass County, RGAFB is bounded by an unincorporated area on the west and by the City of Belton, Missouri on the east and south. Downtown Grandview and downtown Belton are both located within three miles of the base.

Lester W. Reed, Jr., is a Lieutenant Colonel (LTC) in the USAF who is and at all times relevant to this proceeding was assigned to Headquarters, United States Air Force, in the Pentagon, Washington, D.C. (hereinafter, the Air Staff) as a special assistant to the Division Chief and Director of Programs, Bases and Unit Division, under the Deputy Chief of Staff for Programs and Resources.³ In this capacity he acts as a focal point for the formulation of recommendations on base and unit utilizations, including specifically base closures and unit realignments. With regard to the transfer of the four units in question (Headquarters AFCS, ETAC, DCA, and the squadron of C-130 aircraft) to Scott, he was...