Save Our Wetlands, Inc. v. Sands

• Decision Date: 08 August 1983
• Docket Number: 81-3556,Nos. 81-3304,s. 81-3304
• Citation: 711 F.2d 634
• Parties: , 72 A.L.R.Fed. 683, 13 Envtl. L. Rep. 20,851 SAVE OUR WETLANDS, INC., Plaintiff-Appellant, v. Colonel Thomas SANDS, etc., et al., Defendants-Appellees. (Two cases)
• Court: U.S. Court of Appeals — Fifth Circuit

Page 634

711 F.2d 634

19 ERC 1710, 72 A.L.R.Fed. 683, 13

Envtl. L. Rep. 20,851

SAVE OUR WETLANDS, INC., Plaintiff-Appellant, v. Colonel Thomas SANDS, etc., et al., Defendants-Appellees. (Two cases)

Nos. 81-3304, 81-3556.

United States Court of Appeals, Fifth Circuit.

Aug. 8, 1983.

Peter D. Derbes, Luke Fontana, Frank Silvestri, New Orleans, La., for plaintiff-appellant.

John Volz, U.S. Atty., William F. Baity, Asst. U.S. Atty., New Orleans, La., Martin W. Matzen, Edward J. Shawaker, Attys., Dept. of Justice, Washington, D.C., for Sands, et al.

Monroe & Lemann, Eugene G. Taggart, McChord Carrico, New Orleans, La., for Louisiana Power and Light.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.

CLARK, Chief Judge:

Save Our Wetlands, Inc., a nonprofit Louisiana corporation, filed this suit in an effort to block the construction of a 25-mile long electric transmission line along the west bank of the Mississippi River. The organization appeals from a district court dismissal of the complaint under Rule 41(b) of the Federal Rules of Civil Procedure. We affirm.

I. The Facts

In 1969, Louisiana Power and Light Company (LP & L) began acquiring property for the right-of-way for a transmission line corridor between Taft, Louisiana and Westwego, Louisiana along the west bank of the Mississippi River. Westwego is the site of a company switching station from which power is provided to the metropolitan area of New Orleans. The corridor would eventually accommodate three lines, one 500 kilovolt and two 250 kilovolts. In 1979, upon obtaining all of the necessary rights-of-way for the project, the utility filed an application for section 10 ¹ and section 404 ² permits with the New Orleans District of the U.S. Army Corps of Engineers. The section 10 permit was sought because the transmission lines will cross three navigable waterbodies (Bayou Verrett, Cousins Canal, and an unnamed waterway). ³ The section 404 permit was sought because of a concern that the removal of debris cleared from the corridor might be considered a discharge of dredged or fill material into navigable waters.

The corridor will transverse 214 acres of wooded wetland and 244 acres of nonwooded wetland. The wooded wetland will have to be cleared and the utility has decided to windrow the fallen trees and sheared limbs. The windrows will be constructed along one side of the corridor and the timber and vegetation will be allowed to deteriorate at a natural rate. Herbicides approved by the Environmental Protection Agency will be used to stunt the growth of vegetation to prevent interference with the transmission lines. No herbicide runoff in the adjacent wetlands is anticipated.

When the utility submitted its permit applications, it also submitted an Environmental Assessment which was prepared by Dr. Ronald H. Kilgen. Dr. Kilgen, a professor at Nichols State University, was hired by the utility to prepare the assessment ⁴. The assessment reviewed three alternative routes suggested by LP & L and found them to be inadequate. Alternate route one followed an existing right-of-way on which two transmission lines run. It was rejected because additional land would have to be purchased in high-use residential and commercial areas and because multiple transmission lines in one corridor create a high risk of power outage due to hurricanes and tornadoes. The second alternative followed Louisiana Route 3127 to U.S. Highway 90. The assessment rejects the alternative as being aesthetically and environmentally unacceptable. The third alternative ran along the same line on the proposed corridor except for a portion which would run to the south of the proposed corridor. It was rejected because it would put transmission lines between an eagle's nest and the eagles' natural feeding area. The route would also be closer to the feeding area of thousands of lesser scaup and would ruin the aesthetic value of wooded levees lining the Louisiana Cypress Lumber Canal.

The Corps, based upon the assessment, made a preliminary judgment that the project's environmental effects were not significant enough to warrant an environmental impact statement. On April 27, 1979, the Corps issued an initial "Findings of Fact" in which it announced that no environmental impact statement was necessary, but noted that this was subject to change should additional information be brought to its attention. On May 8, 1979, the Corps issued a public notice of LP & L's pending permit application describing the nature and location of the proposed project. ⁵ The notice stated the Corps' view that no environmental impact statement was needed. It was circulated to more than 2,000 organizations and individuals and called for comments until June 7, 1979. Save Our Wetlands submitted no comments and no request was made for a public hearing. The Corps replied to at least one response and then, on August 24, 1979, it issued its final Finding of Fact affirming its early determination that no environmental impact statement was necessary. The section 10 permit was issued to LP & L on September 24, 1979.

Save Our Wetlands filed suit on March 19, 1980 challenging the issuance of the section 10 permit and alleging that the project required a section 404 permit. The organization sought to have the work enjoined until an environmental impact statement was completed. The case was tried before a district judge who granted the defendants' motion for involuntary dismissal under Rule 41(b) of the Federal Rules of Civil Procedure after Save Our Wetlands had completed its case. The organization appeals.

II. Standing

We must consider first LP & L's contention that Save Our Wetlands does not have standing to present this claim. The company contends that under the Administrative Procedure Act, the plaintiff must allege and show that it is adversely affected or aggrieved by the agency's action. 5 U.S.C. § 702. The organization alleged here that its members' economic and recreational use of the area may be permanently compromised by the electric transmission wires. LP & L argues that the organization failed at trial to show any harm. In addition, the utility alleges that Save Our Wetlands' Articles of Incorporation relate to the use of areas on the east bank of the river and that no member testified about their use of the transmission line corridor area. Save Our Wetlands points out, however, that Mrs. Janet Moulton, its president, testified that she went fishing on the west bank in the area of Paradis Canal which is approximately a half mile from the proposed line.

Organization may have standing to sue on behalf of their members if they meet the "aggrieved" party standard of section 10 of the Administrative Procedure Act, 5 U.S.C. § 702. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). An organization will have standing when:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

O'Hair v. White, 675 F.2d 680, 693 (5th Cir.1982) (en banc) (quoting Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)).

For the organization's members to have standing under APA Section 10, they must suffer injury in fact and the alleged injury must be to an interest arguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated. SCRAP, 93 S.Ct. at 2415. Injury in fact is not confined to economic injury, but may include injuries to aesthetics and well-being. Id. The injury must be direct, however, and affect the members. Id. 93 S.Ct. at 2416.

The evidence on standing in this case is admittedly thin, but we find, nonetheless, that the first prong of the Washington Apple test is met. The organization's Articles of Incorporation state that the

[f]urther purposes of the corporation are to explore, enjoy, and preserve the State's wetlands, estuaries, forests, waters, streams, wildlife and wilderness, especially but not necessarily limited to, the Lake Maurepas, Ponchartrain, Catherine and Borgue estuary.... SOWL is dedicated to work for the improvement of the Louisiana environment in all its aspects, ...

(emphasis added). A resolution passed by the organization's board in 1978 also indicated that "it is the purpose and intent of SOWL to preserve the Mississippi River and its surrounding waters...." Under Sierra Club, this statement in the articles would certainly be insufficient to establish standing, but it is relevant in the consideration of the standing question.

During the presentation of the organization's case, Janet Moulton Trombatore, the president, testified that she and her stepson have fished in the general area of the project. She testified that they intend to continue to fish in the area and that the project could have an effect on their fishing. Additionally, the project could harm the aesthetics of the wetlands which would harm Ms. Moulton and the members of the organization who "just ... ride through there on a pirouge."

Of course, the fact of actual damage to the wetlands, fishing and aesthetics is somewhat speculative, but that is the point of the lawsuit--to compel a completion of an environmental impact statement about the consequences of the project.

This interest asserted by the members--the protection of the wetlands environment--would clearly fall within the purpose of the Rivers and Harbors Act, therefore, the first prong is fulfilled. Second, the interests the organization seeks to protect are certainly germane to the organization's purposes as stated in its articles...