Story v. Marsh
| Decision Date | 13 April 1984 |
| Docket Number | No. 2E-2,No. 3E and 10E,Nos. 1E-1 and 1E-2,No. 3,No. 2E-1,Nos. 83-1643,83-1644,No. 5E,No. 1,1,3,5E,2E-2,3E and 10E,s. 1E-1 and 1E-2,2E-1,s. 83-1643 |
| Citation | 732 F.2d 1375 |
| Parties | 14 Envtl. L. Rep. 20,608 George STORY, Story Farms, Inc., a Corp.; Hunter Rafferty; W.C. Bryant; Bryant Farms, Inc., a Corp.; Glen E. Ault, Jr.; Wendell Choate; Choate Farms, Inc., a Corp.; Lloyd Hall; Jim Bogle; Mount Level Farms, Inc., a Corp.; Consolidated Drainage Districtof Mississippi County, Missouri and Levee Districtof Mississippi County, Missouri, Appellees, v. John O. MARSH, Jr., Secretary of The Army; General Joseph K. Bratton, Chief of Engineers Corps of Engineers, U.S. Army; General William E. Read, Division Engineer, Lower Mississippi Valley Division, Corps of Engineers, U.S. Army and President, Mississippi River Commission and Colonel John F. Hatch, Jr., District Engineer, Memphis District, Corps of Engineers, U.S. Army, Village of East Cape Girardeau, et al., Amici Curiae (for appellants). UNITED STATES of America, Appellant, v. 11.9 ACRES OF LAND, MORE OR LESS, SITUATE IN MISSISSIPPI COUNTY, STATE OF MISSOURI, and James H. Amberg, et al., (Tract), Appellees, UNITED STATES of America, v. 62.0 ACRES OF LAND, MORE OR LESS, SITUATE IN MISSISSIPPI COUNTY, STATE OF MISSOURI, and St. John Levee and Drainage District of New Madrid and Mississippi Counties, Missouri, et al., and Unknown Owners, (Tract), Appellees, UNITED STATES of America, Appellant, v. 62.0 ACRES OF LAND, MORE OR LESS, SITUATE IN MISSISSIPPI COUNTY, STATE OF MISSOURI, and St. John Levee and Drainage District of New Madrid and Mississippi Counties, Missouri, et al., and Unknown Owners, (Tracts), Appellees. UNITED STATES of America, Appellant, v. 1426.5 ACRES OF LAND, MORE OR LESS, SITUATE IN MISSISSIPPI AND NEW MADRID COUNTIES, State of Missouri, and Levee Districtof Mississippi County, Missouri, et al., (Tracts), Appellees. UNITED STATES of America, Appellant, v. 1426.5 ACRES OF LAND, MORE OR LESS, SITUATE IN MISSISSIPPI AND NEW MADRID COUNTIES, State of Missouri, and Levee Districtof Mississippi County, Missouri, et al. (Tract), Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
F. Henry Habicht, II, Acting Asst. Atty. Gen., Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., Edwin B. Brzezinski, Asst. U.S. Atty., St. Louis, Mo., Philip M. Zeidner, Rebecca Donnellan, Jacques B. Gelin, Nancy B. Firestone, Attys., Dept. of Justice, Washington, D.C., for appellant; Martin Cohen, U.S. Army Corps of Engineers, Washington, D.C., Bruce Anderson, U.S. Army Corps of Engineers, Memphis, Tenn., Lucille Latta, U.S. Army Corps of Engineers, Vicksburg, Miss., of counsel.
James W. Herron, Richard A. Wunderlich, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., amicus curiae.
Stephen E. Strom, Finch, Bradshaw, Strom & Steele, Cape Girardeau, Mo., for appellee Levee Dist. No. 3 of Mississippi County, Missouri.
James E. Reeves, Ward & Reeves, Caruthersville, Mo., for the above named appellees except appellee Levee District No. 3 of Mississippi County, Missouri.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
The United States and the Secretary of the Army, et al., appeal from an order of the district court, 574 F.Supp. 505, permanently enjoining the Secretary of the Army and his subordinates in the United States Army Corps of Engineers from artificially crevassing the frontline levee of the Birds Point--New Madrid Floodway (hereinafter "the Floodway") during high flood stages on the Mississippi River. The government also appeals from the orders of the district court denying the United States possession of certain lands described in declarations of taking filed in five condemnation cases; those lands are located in the Floodway.
The Floodway is a component of the Mississippi River and Tributaries Project, located on the west bank of the Mississippi River in Mississippi and New Madrid Counties, Missouri, just below the confluence of the Ohio and Mississippi Rivers. It was established under authority of the Flood Control Act of May 15, 1928, 45 Stat. 534. The Floodway is approximately 33 miles long and 10 miles wide and contains an estimated 130,000 acres of alluvial valley land, 330 residences and 1,300 people. The Floodway is enclosed by frontline and setback levees except for a 1,500 foot gap at the lower end which serves as a drainage outlet and allows flood backwaters to enter. The frontline levee, which forms the eastern boundary of the Floodway, consists of three parts: the upper fuse plug section (11 miles long); the lower fuse plug section (5 miles long); and the section between the two fuse plugs. The setback levee forms the western boundary of the Floodway, and is 36 miles long; it begins at its junction with the frontline levee at Birds Point directly across the Mississippi River from Cairo, Illinois, and ends near the mouth of the St. John's Bayou at New Madrid on the Mississippi River.
As originally developed, the front line levee was constructed to protect the Floodway until the river reached the 55 foot stage on the Cairo gauge, at which time the flood water would naturally overtop the front line levee. Congress authorized modification of the Floodway in the Flood Control Act of 1965. P.L. 89-298, 79 Stat. 1073. Pursuant to this Act, the Corps of Engineers in 1966 modified its plan for operation of the Floodway; the plan called for raising the upper and lower fuse plugs to 60.5 feet, raising the frontline levee to 62.5 feet and raising the setback levee to 65.5 feet. The plan also called for operation of the Floodway by artificial crevassing by means of explosives of only the upper fuse plug section of the frontline levee when river stages were at or above 58 feet on the Cairo gauge with a prediction that stages would exceed 60 feet. The plan envisioned that natural crevassing might occur in the lower fuse plug section in the event of a flood of that magnitude.
After approval of the 1966 plan, the levee system's construction was significantly improved and the frontline levee was raised and strengthened. The government also obtained modified flowage easements over a portion of the Floodway to permit the expected artificial crevassing and the resultant inundation in the event of a major flood. However, the Corps became increasingly concerned that the 1966 plan might require excessively high quantities of explosives and might not constitute the most effective or safest method of operating the Floodway. Its concern was based upon additional information on actual river conditions gained as a result of the 1963, 1975 and 1979 floods, and recalculations reflecting the changes in the levee system and the river. The Corps' analysis also indicated that natural crevassing might not occur, because the levees had been strengthened by widening and raising. It concluded that, given the critical nature of the outflow crevasses, artificial means, including use of explosives, might be necessary. The Corps conducted further tests and concluded that it was possible to operate the Floodway more safely and effectively by means of four artificial crevasses in the frontline levee: two artificial inflow crevasses in the upper fuse plug and two artificial outflow crevasses, one in the lower fuse plug and one in the frontline levee opposite Hickman, Kentucky. The Corps, in 1983, adopted a modified plan calling for the artificial crevassing of both the upper and lower fuse plugs, and the middle section of the frontline levee.
In order to ensure access to the frontline levee, the United States filed complaints in condemnation and declarations of taking to acquire the interests necessary to enter and artificially crevasse the frontline levee. 1 Shortly after the declarations of taking were filed, several parties, including individuals residing in the Floodway, filed a separate action to enjoin the government from artificially crevassing the frontline levee. They also sought a declaratory judgment that the government, in developing its plan to artificially crevasse the frontline levee in times of severe flooding, had violated the National Environment Policy Act (NEPA), the Clean Water Act, and the fifth amendment.
After a hearing, the district court concluded that (1) the Flood Control Act of 1965 does not provide congressional approval of the 1983 plan to artificially crevasse the frontline levee; (2) even if the 1965 Act authorizes the plan, the government failed to secure the necessary easements required by the Act; (3) no substantial evidence suggests that artificially crevassing the frontline levee is necessary to operate the Floodway successfully; and (4) the government violated NEPA by failing to prepare an Environmental Impact Statement (EIS). Accordingly, the district court entered a permanent injunction preventing the government from implementing the 1983 plan to artificially crevasse the frontline levee in four places.
With regard to the condemnation cases, the district court determined (1) the estimated just compensation deposited in the condemnation cases was arbitrary and capricious, (2) the government's claim that it will restore the levees after severe flooding is an attempt to deny plaintiffs their right to just compensation, and (3) in the event this court decided that the government was entitled to proceed with operation of the Floodway, as a condition of obtaining possession the government must deposit as estimated compensation for Levee District No. 3 the sum of $6.4 million and for the St. John's Levee and Drainage District the sum of $4 million.
The government contends that the decision of the Corps of Engineers to artificially crevasse both the upper and lower fuse plug sections and the frontline levee is an action "committed to agency discretion by law" within the...
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