Robinson v. Knebel
| Decision Date | 02 March 1977 |
| Docket Number | No. 76-1459,76-1459 |
| Citation | 550 F.2d 422 |
| Parties | , 7 Envtl. L. Rep. 20,358 John D. ROBINSON, Jr., et al., Appellants, v. John A. KNEBEL, etc., et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
E. W. Brockman, Jr., Brockman, Brockman & Gunti, Pine Bluff, Ark., for appellants.
Robert A. Kerry, Atty., Dept. of Justice, Washington, D. C., for appellees; Raymond N. Zagone, Washington, D. C., W. H. Dillahunty, U. S. Atty., and Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., and Peter R. Taft, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., on brief.
Before MATTHES, Senior Circuit Judge, and BRIGHT and HENLEY, Circuit Judges.
The primary question raised in this appeal is whether an environmental impact statement, filed by the Soil Conservation Service of the United States Department of Agriculture in connection with the Cane Creek Recreational Development Resource Conservation & Development Plan complied with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The district court concluded that the final environmental impact statement, as amplified, fully complied with the requirement of NEPA and, accordingly, denied plaintiffs' request for injunctive and declaratory relief and dismissed their action. Plaintiffs appealed. We affirm.
Plaintiffs are residents of Lincoln County, Arkansas and owners of real property located within the proposed Cane Creek Recreational Development. Briefly, plans for the project call for the development of a recreational lake and state park with camping and picnic areas, a boat dock, swimming pool, nature trails, and related facilities. Local sponsors are the Lincoln County, Arkansas Conservation District, the Arkansas Game and Fish Commission, and the Arkansas Department of Parks and Tourism.
The water source for the lake will be Cane Creek, which will be dammed one-eighth of a mile upstream from its confluence with Bayou Bartholomew. The lake, when complete, will be managed for water-based recreation, including sport fishing. Because of bacterial contamination in the feeder streams to the proposed impoundment, a swimming beach will not be installed until after the water quality is determined safe by actual testing of the filled lake.
Plaintiffs own approximately 350 acres of land which are situated at the extreme eastern edge of the project area. The area to be taken includes approximately 195 acres of cropland cultivated in cotton and soybeans.
On April 25, 1974, plaintiffs filed a complaint 1 in the district court alleging that the final environmental impact statement failed to conform to the requirements of NEPA and seeking to halt further construction of the Cane Creek Recreational Development.
The case proceeded to trial on September 16, 1975. At the conclusion of the second day of trial, the district court granted a continuance to permit defendants to prepare and file an amplification of the final environmental impact statement pursuant to 7 C.F.R. § 650.9(d) (1975). The amplification was filed and trial resumed on April 19, 1976. On April 29, 1976, the district court filed its findings of fact and conclusions of law and a final judgment in favor of defendants.
In this appeal plaintiffs contend that the discussion of alternatives and the cost-benefit analysis are inadequate. Additionally, defendants raise for the first time on appeal the question of standing.
To establish their standing, plaintiffs must allege first that the challenged administrative action will cause them injury in fact, economic or otherwise, and secondly, that the injury is to an interest arguably within the zone of interests protected by NEPA. See Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Defendants concede that the allegations of plaintiffs' complaint establish their standing to sue under NEPA. It is their theory, however, that plaintiffs lack standing to raise the specific question whether the impact statement and amplification were inadequate for failure to fully discuss alternatives to including plaintiffs' tillable land in the project area.
In our view, defendants' contention rests upon an overly narrow reading of the complaints filed in this case. The authorities upon which defendants rely may be distinguished on their facts. In Churchill Truck Lines, Inc. v. United States, 533 F.2d 411 (8th Cir. 1976) a group of common carriers sought to set aside an order of the Interstate Commerce Commission (ICC) granting a competing carrier permission to operate in interstate commerce on the ground that the ICC had not filed an impact statement. The plaintiffs in Churchill had not alleged any environmental injury to themselves. We noted that plaintiffs' sole motivation and interest was their economic well-being vis-a-vis their competitors, an interest which is outside the scope of NEPA. Id. at 416. In Gifford-Hill & Co. v. FTC, 173 U.S.App.D.C. 135, 523 F.2d 730 (1975), also cited by defendants, a cement manufacturer sought to have an FTC complaint charging it with antitrust violations nullified because the decision to prosecute was made without compliance with the procedural requirements of NEPA. The court found that the plaintiff's sole concern was with delaying administrative efforts to enforce antitrust laws and, accordingly, denied standing. Id. at 731-32. Similarly, in Clinton Community Hosp. Corp. v. Southern Md. Med. Ctr., 510 F.2d 1037 (4th Cir. 1975), which involved an action by a private hospital to enjoin construction of a competing hospital on environmental grounds, the court denied standing because it was clear that the sole injury suffered by the plaintiff was to its competitive advantage.
Individuals motivated in part by protection of their own pecuniary interest can challenge administrative action under NEPA provided that their environmental concerns are not so insignificant that they ought to be disregarded altogether. See National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971); cf. Environmental Defense Fund v. TVA, 468 F.2d 1164, 1171 (6th Cir. 1972) (); Smith v. City of Cookeville, 381 F.Supp. 100, 102 (M.D.Tenn.1974) (). Here, plaintiffs alleged that they would be injured not only by the loss of valuable tillable land, but also by the loss of an area used by them to hunt wild game. Additionally, their complaint contained allegations that constant seepage from the proposed lake and increased congestion would have an adverse effect on farming operations in the area. These allegations of injury clearly fall within the zone of interests protected by NEPA.
Moreover, whether plaintiffs can challenge the impact statement on the ground that it does not adequately discuss alternatives to condemnation of their land relates more to the merits of the controversy, which we discuss below, than to plaintiffs' standing.
Plaintiffs challenge the adequacy of the final EIS and amplification in two major respects. Specifically, they focus on the adequacy of the discussion of alternatives to the proposed action and on the accuracy of the cost-benefit analysis.
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Section 102(2)(D) directs the agency to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal . . . ."
Five alternatives are briefly discussed in the final EIS. The amplification contains a detailed description and illustrations of six alternative courses of action, including an analysis of construction costs, drainage problems, and the amount of agricultural land to be saved by each proposal. Plaintiffs charge, nevertheless, that the impact statement and amplification are deficient because the specific alternative of moving the levee to the west of their land and installing a pump to handle seepage was not considered. Defendants' witness testified that ...
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