Sierra Club v. Froehlke

• Decision Date: 02 June 1972
• Docket Number: No. 72-C-110.,72-C-110.
• Citation: 345 F. Supp. 440
• Parties: SIERRA CLUB et al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants, and Milan and Doris Slayback et al., Interveners.
• Court: U.S. District Court — Western District of Wisconsin

345 F. Supp. 440

SIERRA CLUB et al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, et al., Defendants and Milan and Doris Slayback et al., Interveners.

No. 72-C-110.

United States District Court, W. D. Wisconsin.

June 2, 1972.

Frank M. Tuerkheimer, Madison, Wis., for plaintiffs.

John O. Olson, U. S. Atty., Madison, Wis., for defendants.

David E. Beckwith, Milwaukee, Wis., for interveners.

JAMES E. DOYLE, District Judge.

This is a civil suit seeking injunctive and declaratory relief to restrain defendants from opening bids for contracts, letting contracts, undertaking land purchases, site preparation, development, construction or other activities relating to the Kickapoo project, Kickapoo River, Wisconsin, which generally involves flood control and other measures proposed by the defendants for the Kickapoo River, Wisconsin. The suit arises under the Fifth and Ninth Amendments to the Constitution of the United States; The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970 Supp.) (hereinafter called "NEPA"); The Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq. (1970 Supp.); The Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-665 (1970); The Flood Control Act of 1962, §§ 201 and 203, 76 Stat. 1180 (1962); The Flood Control Act of 1936, 33 U.S.C. § 701a (1970); The Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1970).

Jurisdiction is alleged under 5 U.S.C. § 702 and 28 U.S.C. §§ 1331(a), 1337, 2201 and 2202. The amount in controversy, exclusive of costs and interest, is alleged to exceed $10,000.00.

Plaintiffs have filed a motion for a preliminary injunction, supported by affidavits and memorandum of law, in which they request an order enjoining defendants and all persons acting in concert with or under the authority of said defendants, pending the final disposition of this action, from entering into any contracts, opening or awarding contracts for construction, undertaking land purchases of acquisitions, site preparation, development, construction, or other activities relating to the proposed Kickapoo project; and from implementing any plan of construction which would alter the land and waters in the Kickapoo River Valley above LaFarge, Wisconsin.

Defendants and Interveners have filed counteraffidavits and memoranda of law.

The motion for a preliminary injunction is the subject of the present opinion and order. For the purpose of decision of this motion, and for this purpose only, I find as fact those propositions contained in the section of this opinion entitled "Facts".

FACTS

The Kickapoo River rises in Monroe County, Wisconsin and flows south and southwest through Vernon, Richland, and Crawford Counties, and empties into the Wisconsin River near Wauzeka, about 16 miles upstream from the junction of the latter stream with the Mississippi River. With the exception of two runoff-retarding dams on the headwaters of the west branch of the river, the Kickapoo is a free flowing river.

The Kickapoo Valley is subject to destructive floods of varying extents practically every year. About 13,000 acres of agricultural lands and eight urban areas below LaFarge sustain damage during major floods. There are no existing flood-control projects in the river basin.

The Kickapoo River Valley has in recent years undergone a period of economic decline. The area has little industry and shows a trend toward decreasing population.

The river itself is winding, slow-moving and shallow. The riverbed between the communities of LaFarge and Ontario is characterized by sedimentary formations of limestone and sandstone which appear as rock outcroppings and promontories along the tree clad valley slopes. Springs seeping through the rock formations support communities of rare terrestrial plants and an abundance of lichens and moss. Hemlock draws, stands of white and red pine, sugar maples and yellow birch are visible from the river.

The 12-mile stretch of the river between Ontario and LaFarge has become increasingly popular with canoeists because of its aesthetically pleasing bluffs and terrain and because the shallow depths and gentle current are suitable for beginning canoeists and family outings.

In 1962, Congress authorized a dam for the "control of destructive floodwaters and other purposes" on the Kickapoo River north of LaFarge in the Flood Control Act of 1962, § 203, 76 Stat. 1180. Section 203 of that Act provides that "the project for the Kickapoo River, Wisconsin, is hereby authorized substantially as recommended by the Chief of Engineers in House Document Numbered 557, Eighty-seventh Congress, at an estimated cost of $15,570,000." House Doc. No. 557 called for construction of a dam 71.5 feet high with an overall length of 1,440 feet which would require acquisition in fee title of 3,000 acres. Such a dam would have provided a conservation pool of 800 surface acres. Its total flood control storage capacity would have been 66,000 acre-feet. The project document also called for construction of supplementary levees at Gays Mills and Soldiers Grove requiring cost sharing commitments by each community. Such commitments have not yet been requested or received by the Corps of Engineers.

In 1972, defendants propose to begin construction of a dam north of LaFarge which is 103 feet high with an overall length of 3,960 feet. The dam will create a conservation pool with a surface of 1,780 acres and a flood control storage capacity of 124,000 acre-feet. Land acquisition of 9,560 acres in fee title would be required. Completion of the project as presently proposed would cause the inundation of most, if not all, of the 12-mile stretch of river between LaFarge and Ontario, resulting in the loss of that section of the river for purposes of river canoeing and the probable loss of substantial portions of the rare plant communities found on the cliffs overlooking that portion of the channel.

On February 18, 1972, the Corps of Engineers of the United States Army completed a "Final Environmental Statement" on the LaFarge Lake Project on the Kickapoo River. This environmental impact statement (hereinafter "EIS") is a voluminous document, consisting of 78 pages of text and 400-500 pages of plates and appendices. The EIS is organized under eight headings which correspond closely to the subject matter required under § 4332(2) (C), NEPA: Project Description; Environmental Setting without the Project; Environmental Impact of the Proposed Action; Adverse Environmental Effects which Cannot be Avoided Should the Project be Implemented; Alternatives to the Proposed Action; Short-Term Uses of Man's Environment as Compared to Maintenance and Enhancement of Long-Term Productivity; Irreversible or Irretrievable Commitments; Coordination with other Agencies; and Conclusion. Each of the above subjects is divided into numerous subdivisions. All told, fourteen alternatives for flood control, fish and wildlife management, and recreation are considered in the report. Comments on the final draft were requested from 20 federal and state agencies and officials and private organizations and individuals (including plaintiff herein, Sierra Club, John Muir Chapter). Comments were received and incorporated in the EIS from fifteen persons and organizations who responded. The final EIS has been forwarded to the Council on Environmental Quality.

CLAIMS BASED ON THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

Plaintiffs' first four claims arise under NEPA. These claims raise two issues: (1) the adequacy of the present EIS as a "detailed statement" treating the five specific subject areas set forth in § 4332(2) (C), NEPA; and (2) the effect of an alleged agency bias reflected throughout the statement in the treatment of the proposed project (its adverse impact, costs and benefits) and alternative actions.

Plaintiffs must show a substantial probability of success on the merits of these claims in order for a preliminary injunction to issue.

Plaintiffs contend that there have been inadequate studies and treatment of the subjects of siltation and water quality problems in the proposed impoundment; that the present availability and utilization of other lake areas in southwestern Wisconsin have not been compiled and taken into account; that no exhaustive studies of the location, types, and quantities of vegetation present in the Kickapoo Valley have been made; and that various alternatives and combinations of alternatives are not discussed in the statement at all. For these reasons, plaintiffs contend that the present EIS does not constitute compliance with the mandates of § 4332(2) (C) "to the fullest extent possible" as required by NEPA.

Courts which have confronted the issue of judicial review of environmental impact statements agree on two basic points. First, a court may review a statement filed pursuant to § 4332(2) (C) to determine whether it complies with the procedural requirements of NEPA. Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972); Environmental Defense Fund v. T. V. A., 339 F.Supp. 806 (E.D. Tenn.1972); Conservation Council v. Froehlke, 340 F.Supp. 222 (M.D.N.C. 1972); Harrisburg Coalition against Ruining Environment v. Volpe, 330 F. Supp. 918 (M.D.Pa.1971); Environmental Defense Fund v. Corps of Engineers (Tennessee Tombigbee) 3 E.R.C. 1085 (D.D.C.1971); Environmental Defense Fund v. Corps of Engineers (Gilham Dam) 325 F.Supp. 749 (E.D.Ark.1971). Second, courts may not substitute their judgment regarding the wisdom, advisability and benefits of undertaking or not undertaking a particular project. Conservation Council v. Froehlke, supra; Environmental Defense Fund v. Hardin, 325 F.Supp. 1401 (D.D.C.1971); Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C.Cir. 1971); Environmental Defense Fund v. Corps of Engineers, supra, 325 F.Supp. 728, at 738.

The National Environmental Policy Act has been termed an "environmental full disclosure act"...