People of State of Ill. ex rel. Scott v. Hoffman, P-CIV-76-45.

• Decision Date: 06 January 1977
• Docket Number: No. P-CIV-76-45.,P-CIV-76-45.
• Citation: 425 F. Supp. 71
• Parties: PEOPLE OF the STATE OF ILLINOIS ex rel. William J. SCOTT, Attorney General of the State of Illinois, Plaintiff, v. Martin HOFFMAN, Secretary of the Department of the Army of the United States, et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

425 F. Supp. 71

PEOPLE OF the STATE OF ILLINOIS ex rel. William J. SCOTT, Attorney General of the State of Illinois, Plaintiff, v. Martin HOFFMAN, Secretary of the Department of the Army of the United States, et al., Defendants.

No. P-CIV-76-45.

United States District Court, S. D. Illinois, N. D.

January 6, 1977.

COPYRIGHT MATERIAL OMITTED

Joseph V. Karaganis, Chicago, Ill., for plaintiff.

James D. Reynolds, Peoria, Ill., J. Peter Ault, Arthur N. Christie, Sp. Asst. State's Atty., Pekin, Ill., Lyle W. Allen, Peoria, Ill., Donald B. Mackay, U.S. Atty., Springfield, Ill., Fred R. Disheroon, Atty., Dept. of Justice, Washington, D. C., Robert D. Jackson, Peoria, Ill., for defendants.

DECISION AND ORDER ON MOTIONS

ROBERT D. MORGAN, Chief Judge.

This suit was instituted by the Attorney General of Illinois, on behalf of the People of the State, for injunctive and other relief, to compel the restoration to its natural course of the Mackinaw River.

The defendants are:

1. Martin Hoffman, Secretary of the Army of the United States.

2. The United States Army Corps of Engineers (herein the Corps) and its agents and employees, to-wit: Lt. General William C. Gribble, Chief of Engineers; General Robert Moore, Commandant of the North Central Division of the Corps; Colonel James M. Miller, Commandant of the Chicago District of the Corps; and Angelo Zerbonia, Project Officer for the Peoria Project Office of the Corps.

3. Tazewell County, Illinois, landowners Henry Horn, Jr., B. Knachstedt, Walter Fuelberth, Everett Garman, Warren Hall and Mable Oberle.

4. Contractors William Hellemann and Roecker Bros., Inc.

5. The County of Tazewell, Illinois, a corporate body politic, and Edwin Mitchell, Superintendent of the Tazewell County Highway Department.

6. Russell E. Train, as Administrator of the United States Environmental Protection Agency.

The complaint arises from the following, somewhat involved, background. Statements made in this context are allegations of the complaint, and the same are not to be construed as proven or uncontested facts.

The Mackinaw River, a navigable water of the United States, empties into the Illinois River in Tazewell County, near the City of Peoria, Illinois. In its natural state, the Mackinaw provided the habitat and environment for more than 100 species of fresh water fish and other aquatic species.

In May, 1973, defendant Horn, on behalf of the other landowners, requested the Corps to repair and restore two levees which bordered the opposing banks of the Mackinaw between miles 4 and 8 thereof. In July, 1973, defendant Zerbonia, acting as project engineer for the Corps, proposed that the Corps dam the natural channel, construct an artificial channel, and relocate the two levees. Thereafter, the landowners, defendant Mitchell, on behalf of Tazewell County, and Zerbonia agreed to jointly pursue that proposed plan, and further agreed that the cost of the proposed project be shared between the owners, Tazewell County and the Corps.

Pursuant to that agreement, defendants Hellemann and Roecker were employed by the aforesaid defendants for the proposed project. Between the summer of 1974 and the spring of 1975, one bow of the natural channel was dammed, a second bow of the channel was filled, and a new, straight channel was constructed between miles 4 and 8. The damming, filling and channelization destroyed substantial areas of fishing habitat and extensive feeding and spawning areas for aquatic life. The construction of levees along the new channel, in conjunction with the straightening and configuration of the channel itself, had the effect of increasing flood hazards for landowners both upstream and downstream from the affected area.

The theory of the complaint is that the premises reflect the violations of divers federal statutes which are redressable by an injunction to compel restoration of the Mackinaw to its natural channel. The several counts are directed to specific, alleged statutory violations.

Count I is based upon the provisions of 33 U.S.C. § 401, which prohibits the construction of a dam in any navigable water without the express consent of the Congress of the United States and the approval of the Chief of Engineers of the Corps.

Count II is based upon the provisions of 33 U.S.C. § 403, which prohibits the obstruction of any navigable water which is not expressly authorized by Congress, or the alteration of the course of any stream, unless such action is recommended by the Corps and approved by the Secretary of the Army in advance of such alteration.

Count III is based upon the provisions of 33 U.S.C. § 407, which prohibits the deposit of any refuse in a navigable stream without first having obtained a permit from the Secretary of the Army.

Count IV is based upon the provisions of 33 U.S.C. § 565, which prohibits any improvement in a navigable stream without the express prior approval of the Secretary of the Army and the Corps, and without the continuing control of the Secretary and the Corps of such construction.

Count V is based upon the provisions of 33 U.S.C. § 1311, which prohibits the discharge of any pollutant into a navigable stream unless a permit be first obtained from the Secretary of the Army after a hearing upon the issue.

Count VI alleges that the work here was done pursuant to 33 U.S.C. § 701n and governed by Corps regulation 500-1-1, which prohibits the use of federal funds for any project where a state permit is required and the same has not first been obtained. That count further alleges that such a permit was required by the premises and that the Corps and its responsible agents knew that no such permit had been issued by the State of Illinois.

Count VII is based upon the provisions of 16 U.S.C. § 662, which provides that whenever the waters of any stream are proposed to be diverted, or otherwise modified by any federal agency, or by other public or private persons under a federal permit, such agency, body or person shall consult with the United States Fish and Wildlife Service of the Department of the Interior and with the head of any appropriate state agency, to prevent the loss or damage of any wildlife resources as a result of such project.

Count VIII is based upon the provisions of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., which requires every federal agency to comply with the environmental impact requirements of the Act in the construction of any federal project which has a significant effect upon the environment.

Each, Counts I through VIII, prays that all defendants except defendant Train, or in certain instances the federal defendants, be compelled by a mandatory injunction to remove the illegally constructed dams, fill, and other structures from the river, and that they restore the river banks and channel to their natural contour and condition.

Only Count IX relates to defendant Train. That count alleges that Train is required by 33 U.S.C. § 1319 to bring an enforcement action against any violator of 33 U.S.C. § 1311; that Train has been notified by the United States Fish and Wildlife Service that the other defendants to this cause had violated § 1311, and that despite such notification, he has refused to enforce the Act against such violations; that 33 U.S.C. § 1365 permits any citizen to file an action to enforce the Act, including the imposition of civil penalties under 33 U.S.C. § 1319(d), and that requisite statutory notices have been given to all of the defendants. That count prays a declaration that Train has failed to perform his duties, and a judgment ordering train to initiate appropriate enforcement action. It further prays the assessment of a civil penalty pursuant to section 1311 against all defendants, except Train, for the illegal discharge of pollutants into the river.

Several motions are now pending.

I. Motion of Federal Defendants for Summary Judgment.

The federal defendants have filed a joint motion for summary judgment for the asserted reason that they, and each of them, are entitled to judgment as a matter of law. That motion is supported by the affidavits of Colonel Andrew C. Remson, Jr., District Engineer for the Corps, and Angelo M. Zerbonia, Area Engineer for the Corps at Peoria, and by certain exhibit evidence.

The crux of their argument, that there remains no genuine issue as to any material fact, rests upon the statements that the Corps did not deem the river to be a navigable stream and that the federal defendants were not parties to any activities performed in the Mackinaw River. They assert that they only participated in the restoration and setback of existing levees along the river.

The first of those statements avoids the crucial allegation of the complaint that the Mackinaw is historically a navigable water of the United States. This court deems that allegation to point up the critical factual issue. Although the Corps' position may have a bearing upon final resolution of the issue it cannot be deemed dispositive of it in the present status of this suit.

The affidavits and certain documentary exhibits do support the statement that the federal defendants did not participate in the rechanneling project. They do not, however, fully meet the complaint, and the statements contained therein are to some degree refuted by other evidentiary facts apparent in the cause. It is not disputed that Mr. Zerbonia was a party to certain meetings and discussions with the landowners and representatives of the County, which culminated in the employment of Roecker and Hellemann for the construction of the total project. It further appears that rechannelization was one of four alternative solutions proposed by Mr. Zerbonia shortly following a request by the owners that the Corps repair flood-damaged levees. The construction proceeded as a total project, and there yet remain some gray areas related to the factual problem of sorting out the respective responsibilities assumed and undertaken by...