UPPER W. FORK RIVER WATERSHED ASSOC. v. CORPS OF ENGRS., UNITED STATES ARMY

• Decision Date: 03 May 1976
• Docket Number: Civ. A. No. 74-140-E.
• Citation: 414 F. Supp. 908
• Court: U.S. District Court — Northern District of West Virginia
• Parties: UPPER WEST FORK RIVER WATERSHED ASSOC., By Kenneth Parker, President Lewis County, West Virginia, Plaintiff, v. CORPS OF ENGINEERS, UNITED STATES ARMY et al., Defendants.

414 F. Supp. 908

UPPER WEST FORK RIVER WATERSHED ASSOC., By Kenneth Parker, President Lewis County, West Virginia, Plaintiff, v. CORPS OF ENGINEERS, UNITED STATES ARMY et al., Defendants.

Civ. A. No. 74-140-E.

United States District Court, N. D. West Virginia, Elkins Division.

May 3, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

LaVerne Sweeney, Grafton, W. Va., for plaintiff.

James F. Companion, U. S. Atty., Wheeling, W. Va., for defendants.

MEMORANDUM ORDER

MAXWELL, Chief Judge.

Plaintiff, the Upper West Fork River Watershed Assoc., essentially seeks to enjoin further work on the Stonewall Jackson Lake Project in Lewis County, West Virginia, until alleged deficiencies in the environmental impact statement (the "EIS") relating to the project are cured.¹ The lake project, to be completed by the U. S. Army Corps of Engineers, will require approximately 21,000 acres of privately owned land in the West Fork River basin. The project is for flood control and other purposes; its dam will create a lake of 3,470 acres when at full pool.

Plaintiff is a West Virginia corporation with 597 members, 75 per cent of whom own real estate in the project area. Plaintiff's express purpose is to "encourage and promote" a watershed project on the tributaries of the West Fork River and thus avoid losing the lands of its members through eminent domain proceedings to the Stonewall Jackson Lake Project. (Plf.'s Interrog. Ans. 2 and 4; Compl., par. 2.)

Named as defendants are the U. S. Army Corps of Engineers (the "Corps"), the United States Army itself, the United States Department of Defense, and three individuals who occupied official positions when the complaint was filed: James R. Schlesinger, then Secretary of Defense; W. G. Delbridge, then the Corps' District Engineer for the Pittsburgh District, and Howard H. Callaway, then Secretary of the Army.

Development of the Litigation; the Record

Plaintiff, in its complaint filed July 11, 1974, alleges jurisdiction under 5 U.S.C. § 701 et seq. (review of agency action), 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (declaratory judgment), 42 U.S.C. § 4321 et seq. (National Environmental Policy Act, "NEPA"), and the Fifth and Ninth Amendments to the United States Constitution.

In the first cause of action, Plaintiff attacks the adequacy of the EIS filed by the Corps concerning the project. Plaintiff alleges that the EIS is "vague; incomplete; misleading; erroneous" and "conclusionary." Plaintiff further claims that the EIS is "non-reviewable . . . in its present form" and does not comply with either the requirements of 42 U.S.C. § 4321 et seq. or the guidelines of the Council on Environmental Quality (the "CEQ"). (The final EIS, which the Corps filed with the CEQ on October 6, 1971, is attached to the complaint as an exhibit.)

In its second cause of action, plaintiff asserts that the "decision of the defendants to undertake the said project is not in substantial compliance with the goals Congress declared in 42 U.S.C. 4321 et seq."

Finally, in the third cause of action, Plaintiff claims that pursuit of the project, especially in light of the present EIS, violates Plaintiff's Fifth and Ninth Amendment rights.

Plaintiff seeks (1) a temporary injunction to prevent further action on the lake project; (2) an order directing the Defendants to prepare a new EIS which will cure the alleged deficiencies in the present statement; and (3) a determination whether Defendants are violating Plaintiff's rights under the Fifth and Ninth Amendments and under 42 U.S.C. § 4321 et seq.

The Defendants answered on September 16, 1974, denying the charging allegations of the complaint. On November 15, 1974, the Defendants directed extensive interrogatories to Plaintiff, which were answered on December 27, 1974. The Plaintiff filed supplemental answers to four interrogatories on December 22, 1975.

On December 12, 1974, Plaintiff's counsel deposed George Cingle, Jr., Chief of the Planning Branch of the Corps' Engineering Division in Pittsburgh. At the request of Plaintiff's counsel, the Corps' January 1971 General Design Memorandum, which is essentially the project plan, was attached to the transcript of the Cingle deposition. The deposition and attachments were filed and are part of the record.

A hearing on Plaintiff's motion for a preliminary injunction was set for November 21, 1975. Prior to the hearing date, the parties "agreed that in lieu of the hearing . . . the issues raised in this litigation can be submitted to the Court for decision by way of cross-motions for summary judgment." The agreement of the parties is reflected in the Court's November 21, 1975, order.² Pursuant to the order, the Defendants filed their motion for summary judgment on December 15, 1975. With the motion, the Defendants, under the affidavit of Colonel Max R. Janairo, Jr., the Corps' District Engineer (Pittsburgh District), filed a document dated November 1975 and entitled "Review of Environmental Features Relating to the Stonewall Jackson Lake Project" (hereinafter the "1975 Review"). (Map folios attached to the 1975 Review were also filed.) The Plaintiff filed its cross-motion for summary judgment on January 5, 1976. With the motion, Plaintiff filed the affidavits of (1) its president, Kenny Parker, (2) M. S. Holt, Jr., one of Plaintiff's members who is a civil engineer, (3) Clara Mae Spray, another of Plaintiff's members, and (4) Dr. S. Thomas Bond, an inorganic chemist. (Maps concerning coal reserves accompany the Bond affidavit.) Plaintiff also filed several documents: a map folio styled Development of Water Resources in Appalachia (Exhibit A); A Comptroller General's report: Improvements Needed in Making Benefit-Cost Analyses for Federal Water Resources Projects (1974) (Exhibit 2); and a book entitled Comprehensive Survey of the Monongahela River (1973), prepared by the West Virginia Department of Natural Resources (Exhibit 3).

Both sides submitted briefs in support of their motions for summary judgment and, in addition, the Court has had the benefit of a brief submitted by several organizations who appear amici curiae, namely, the Clarksburg Chamber of Commerce, the Association for Industrial Development of Harrison County, the Lewis County Chamber of Commerce and the Buckhannon Chamber of Commerce.³

In this action Plaintiff focuses its attack on the EIS filed by the Corps. As is detailed more fully, infra, the Court's review must focus upon the EIS itself and the information which the Corps compiled and utilized. This includes all studies and reports which affect the content of the EIS. See Afton Alps, Inc. v. United States, 392 F.Supp. 543, 550-51 (D.Minn.1974). One important document, a 1966 Corps report on the West Fork River and its tributaries, was not submitted to the Court by the parties, although it was brought by reference to the Court's attention. The report, a public Congressional document, is entitled West Fork River and Tributaries, West Virginia, S.Doc.No.109, 89th Cong., 2d Sess. (1966). This report (hereinafter the "1966 Report") is identified in the General Design Memorandum (page 7) as "the project document" and "the basis for the West Fork River Basin . . . legislative action." Because of the importance of this public document, the Court has obtained a copy, and the Clerk will be directed to file the same as part of the record.

A final observation concerning the record is needed. The Plaintiff has moved to strike from the record the Corps' 1975 Review which Defendants submitted with their summary judgment motion under the affidavit of Colonel Janairo, the Corps' District Engineer. Plaintiff objects to the 1975 Review, claiming that it is an improper attempt to supplement the EIS with uncirculated material.⁴ In their reply brief, Defendants readily concede that the 1975 Review is not a supplement to the EIS. Instead, the 1975 Review is simply offered to support conclusions in the EIS. Under such circumstances, it seems proper, since documents identified by affidavit may be submitted to support a motion for summary judgment, that the 1975 Review remain in the record unstricken. Pollack v. City of Newark, N. J., 147 F.Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3rd Cir. 1957), cert. denied, 355 U.S. 964, 78 S.Ct. 554, 2 L.Ed.2d 539 (1958), reh. denied, 362 U.S. 907, 80 S.Ct. 614, 4 L.Ed.2d 558 (1960); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2722. Of course, Plaintiff was free to respond to the Janairo affidavit and the 1975 Review as provided by Rule 56(e), F.R.Civ.P. However, the Court notes that the 1975 Review is basically cumulative and is unessential to the Court's decision in this case.

The Propriety of Summary Judgment

As noted, this case is before the Court on cross-motions for summary judgment. The parties, including the Plaintiff, expressly indicated that they did not desire an evidentiary hearing and agreed that the entire case should be submitted for decision on cross-motions for summary judgment. (See footnote 2, supra.) In its motion, Plaintiff asserts that there is "no genuine issue as to any material fact." However, in its brief, Plaintiff may imply a somewhat different position. Plaintiff may be urging in its brief that it can be awarded summary judgment but that summary judgment for the Defendants would be improper because material factual issues stand in the way. There is no proffer by Plaintiff, however, of such material factual issues, nor are there inferences from which such could arise.

In the absence of Plaintiff's bringing material factual issues to the Court's attention, and after a careful search by the Court for such, the Court considers this a proper case for summary judgment and further concludes that summary judgment should be granted in favor of the Defendants for reasons which appear in detail in this memorandum.

This case is chiefly an attack on the EIS, and the Defendants of course claim that the...