State of Mo. ex rel. Ashcroft v. Department of Army, s. 81-1224

Citation672 F.2d 1297
Decision Date09 March 1982
Docket Number81-1225,Nos. 81-1224,s. 81-1224
Parties, 12 Envtl. L. Rep. 20,368 STATE OF MISSOURI ex rel. John ASHCROFT, Missouri Clean Water Commission, Department of Natural Resources, The Missouri Conservation Commission, Appellants, Dale Rountree, Max A. Smith, Calvin C. Johnson, Alton Burns, James E. Jones, Kenneth D. McCall, Ray Pinkman, Shelby A. Masters, Scott Johnson and David Johnson, v. DEPARTMENT OF THE ARMY, Corps of Engineers, Clifford Alexander, Jr., Lt. Gen. John W. Morris and Col. Richard Curl, Appellees. STATE OF MISSOURI ex rel. John ASHCROFT, Missouri Clean Water Commission, Department of Natural Resources, The Missouri Conservation Commission, Dale Rountree, Max A. Smith, Calvin C. Johnson, Alton Burns, James E. Jones, Kenneth D. McCall, Ray Pinkman, Shelby A. Masters, Scott Johnson and David Johnson, Appellants, v. DEPARTMENT OF THE ARMY, Corps of Engineers, Clifford Alexander, Jr., Lt. Gen. John W. Morris and Col. Richard Curl, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John Ashcroft, Atty. Gen., Jerry Short, Asst. Atty. Gen., Jefferson City, Mo., for appellants.

Joseph B. Phillips, Stockton, Mo., for Class Action appellants.

William B. Ellis, Hunton & Williams, Richmond, Va., for amici curiae.

J. Whitfield Moody, U. S. Atty., E. Eugene Harrison, Asst. U. S. Atty., August V. Spallo, Terence J. Kelley, Asst. Dist. Counsels, U. S. Army Corps of Engineers, Kansas City, Mo., for appellees.

Before ROSS and STEPHENSON, Circuit Judges, and HOWARD, * District Judge.

STEPHENSON, Circuit Judge.

Plaintiff-appellants representing the state of Missouri and affected landowners appeal the district court's 1 denial of relief from defendants-appellees Department of the Army, Corps of Engineers. Appellants allege the Corps of Engineers acted without authority in constructing a 45,200 kilowatt (kw) generator on the Sac River near Stockton, Missouri. The district court, in a well-reasoned and thorough opinion, denied relief on all grounds. State of Missouri v. Department of the Army, Corps of Engineers, 526 F.Supp. 660 (W.D.Mo.1980). We affirm the district court's denial of relief for the reasons set out in its opinion with some additional comment.

I. FACTS

Through the passage of the Flood Control Act of 1954, Congress authorized the Army Corps of Engineers to construct a dam and generator near Stockton, Missouri, on the Sac River. This authorization was pursuant to an extensive study completed during the 1940's by the Corps of Engineers. It recommended an extensive construction program calling for the erection of a series of dams, primarily for flood control, on the Missouri, Kansas, and Osage Rivers and the tributaries of the Osage River.

Originally, the Corps of Engineers recommended a 7000 kw generator be placed at the Stockton dam. However, as the years passed, the Corps of Engineers increased the recommended size of the generator several times. 2 Each of the changes in the generator size was included in the Corps of Engineers' requested appropriation for that year and each time Congress approved the request.

The last increase was sought in 1963, when the Corps of Engineers requested an appropriation for a 45,200 kw generator with an overload capacity of 52,000 kw and Congress approved it. To operate the generator at 45,200 kw production, there must be a flowage of 11,000 c.f.s. and to operate the generator at the capacity of 52,000 kw requires a release of 14,000 c.f.s.

Construction of the project began soon after Congress passed the 1963 appropriation. A test release of water from the dam in 1972 revealed that the Corps of Engineers had grossly overestimated the channel capacity of the river below the dam. The release of 6,000 c.f.s. resulted in an overflow at several places along the Sac River. Upon further investigation, the Corps of Engineers discovered the flowage capacity of the river was 5,300 c.f.s. instead of the 12,000 c.f.s. that the Corps of Engineers had originally estimated. At the time the Corps discovered the miscalculation in the channel capacity of the Sac River, construction of the Stockton project was virtually complete.

As a result of the downstream flooding, the Corps of Engineers considered various solutions to the problem, including the construction of levees or a re-regulation structure, widening or deepening the channel, or constructing one or more channel cut-offs to shorten the stream's length. Operation of the generator at rates between 15,000 kw and 40,000 kw is not a feasible alternative because of vibration. The Corps of Engineers, however, agreed to limit discharge to 5,000 c.f.s., pending resolution of the problem.

In the spring of 1976, after extensive investigation and discussion with state and federal agencies and persons living along the Sac River downstream of the dam, the Corps of Engineers proposed a solution composed of (1) purchasing flowage easements on 1337 acres of land downstream, (2) constructing one channel cut-off and (3) limiting discharges from the dam to 8,000 c.f.s. for six hours' duration thereby generating some 40,000 kw of electricity. The Corps of Engineers presented testimony and reports to House and Senate committees and subcommittees from 1976 through 1978. Funds for the implementation of the proposed solution were subsequently appropriated by Congress.

Appellants filed this lawsuit on March 22, 1978, seeking declaratory, mandamus and injunctive relief from the operation and proposed operation of the Stockton dam power plant. Plaintiffs alleged that the defendants' operation and the proposed operation of the hydropower facilities were not congressionally authorized, constituted an actionable nuisance, and were in violation of the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), the Fish and Wildlife Coordination Act (FWCA), Federal Water Pollution Control Act (FWPCA), and the Missouri Clean Water Law (MCWL).

After a trial without a jury, the district court found that the Corps of Engineers had complied with all the necessary procedures and laws. It concluded the Corps of Engineers had acted within its authority in installing the 45,200 kw generator and in implementing the compromise solution regarding its operation.

II. ISSUES

Appellants landowners and the state of Missouri argue three general grounds for reversal based on the district court's alleged errors in failing to hold that (1) the Corps of Engineers abused its discretion by acting in bad faith in the planning and installation of the 45,200 kw generator or, even if the action was not in bad faith, it was outside the congressional authorization; (2) the Corps of Engineers had not complied with the APA, NEPA and FWCA through its filing of the Final Environmental Impact Statement (FEIS) and the Final Supplemental Environmental Impact Statement (FSEIS); and (3) the solution would violate the FWPCA and state and local water pollution laws.

Appellant state of Missouri argues three additional grounds for reversal based on the district court's alleged errors in failing to hold that (1) the changes in the project were not within the congressional authorization, thus violating the APA and NEPA; (2) the Corps of Engineers had not fully complied with the FWCA for the reason that they did not adequately consult with the United States Fish and Wildlife Service and state agencies regarding adverse impacts; and (3) the operation and proposed operation of the dam constituted a nuisance.

III. DISCUSSION
A. Abuse of Discretion-Outside Congressional Authorization 3

Appellant landowners contend that the installation of the large capacity generator was either grossly negligent or intentional. As evidence, they point to the Corps of Engineers' reliance on an inexperienced employee for the study of the river, the extreme misestimate of the flowage of the river, and the Corps of Engineers' numerous expansions of the capacity of the generator.

We find no error in the district court's finding that there was no gross negligence or intentional misconduct. Obviously, mistakes were made in the design of the project. However, appellants have not provided convincing evidence that these errors constituted grossly negligent or intentional actions.

Appellants landowners and the state of Missouri argue that even if the construction of the larger generator was not an abuse of discretion by being grossly negligent or intentional, it was action outside the authority granted to the Corps of Engineers by Congress. Appellants argue that the primary purpose of the congressional authorization was flood control and, in light of the fluctuations in water levels that will result from the proposed operation, the Corps of Engineers has sacrificed the primary purpose of the project for power generation, which originally was intended to be only a secondary benefit.

Relying on United States v. 2,606.84 Acres of Land in Tarrant County, Texas, 432 F.2d 1286, 1292 (5th Cir. 1970), cert. denied, 402 U.S. 916, 91 S.Ct. 1368, 28 L.Ed.2d 658 (1971), the district court held that the expansion of the capacity of the power generator was well within the congressional authorization. In the Tarrant County case, the Fifth Circuit held that the Corps of Engineers' expansion of the size of a reservoir for recreational purposes in a project primarily intended for flood control was not outside the congressional authorization for the project. The district court in the present case reasoned that the Tarrant County decision shows the broad discretion given the Corps of Engineers in making changes in proposed projects.

While flood control may have been an important reason for the initial authorization of the project, we are not prepared to hold that the Corps of Engineers' action was outside the congressional authorization for the project. Flood control was not the only reason for the project and the Corps of Engineers is...

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