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EDF INC. v. CORPS OF ENGRS. OF UNITED STATES ARMY

January 27, 1971

ENVIRONMENTAL DEFENSE FUND INCORPORATED et al., Plaintiffs,
v.
CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

 The plaintiffs in this proceeding are the Environmental Defense Fund (EDF), the Florida Defenders of the Environment (FDE), and certain individual residents of Florida who have benefited and desire to continue to benefit from the hunting, fishing, and other recreational as well as aesthetic advantages of the Oklawaha River ecosystem. They seek preliminary injunctive relief against the Corps of Engineers of the United States Army, Secretary of the Army Stanley R. Resor, and General Frederick B. Clarke, Chief of Engineers, Corps of Engineers, claiming that the Cross-Florida Barge Canal, hereinafter the Canal, although duly authorized, is being constructed in violation of numerous statutes designed to preserve the natural resources of the nation and to salvage to the extent possible those resources already endangered -- particularly the National Environmental Policy Act, *fn1" hereinafter NEPA, the Fish and Wildlife Coordination Act, *fn2" and the Act of July 23, 1942 *fn3" which authorizes construction of the Canal. The plaintiffs assert that unless the requested relief is granted irreparable damage will result -- notably extensive destruction of unique timber and aquatic life upstream from Eureka Dam as well as in Rodman Reservoir, and almost certain pollution of a considerable portion of the water supply for the State of Florida.

 The defendants have filed a motion to dismiss asserting that plaintiffs lack standing to bring this suit, and further asserting that the Court lacks jurisdiction of the defendants and the subject matter because this action is allegedly barred by sovereign immunity. They further contend that there is a failure to state a claim upon which relief can be granted, again asserting sovereign immunity, and further arguing that the statutes upon which plaintiffs rely do not apply to the Canal which was authorized in 1942 and begun in 1964. The structures of the Canal are allegedly one-third completed and the overall project is allegedly one-sixth completed.

 For the reasons set forth, the Court denies the defendants' motion to dismiss and grants the plaintiffs' motion for a preliminary injunction.

 The individual plaintiffs, as Florida citizens and users of Florida recreational facilities, and EDF and FDE which through their research and other activities have actively sought to preserve and enhance the natural environment for the benefit of posterity, will suffer real injury if the anticipated environmental damage occurs. The interests they seek to protect are arguably within the zone of interests to be protected by certain of the statutes upon which they rely, and they have alleged such a personal stake in the outcome of the controversy as to assure the necessary concreteness of issues. They are "aggrieved" persons within the terms of the Administrative Procedure Act, 5 U.S.C. § 702. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Environmental Defense Fund et al. v. Hardin et al., 138 U.S. App. D.C. 391, 428 F.2d 1093 (1970); Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 1965). The plaintiffs thus have standing.

 Nor is the doctrine of sovereign immunity applicable. This suit seeks to challenge actions by officers on grounds that the actions are allegedly "beyond their statutory powers" or "even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void," Dugan et al. v. Rank et al., 372 U.S. 609, 620-622, 83 S. Ct. 999, 1007, 10 L. Ed. 2d 15 (1963). This is a review of administrative compliance with statutory duties, and there is no clear and convincing evidence of Congressional intent to bar judicial review of such compliance in this instance. The situation is clearly distinguishable from those in Dugan, supra, and Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949), cited by defendants. Those cases involved, respectively, an alleged tortious diversion of water rights and a breach of contract. In both instances government officers had concedely acted within the framework of the statutory grant of authority.

 Finally, in view of the possible disastrous effects to the drinking water supply of Florida, the partial state of construction, the extensive alleged remaining construction time, and the clear priority Congress has recently given to preserving and protecting the Nation's natural resources, certain of the cited statutes -- including but not limited to the National Environmental Policy Act, supra, the Fish and Wildlife Coordinating Act, supra, and the Act of July 23, 1942, supra -- must be held applicable to construction of the Cross-Florida Barge Canal.

 The Court, therefore, concludes that it has jurisdiction of the parties and the subject matter; and, further, that the complaint does state a claim upon which relief can be granted.

 There is also sufficient basis to justify granting the plaintiffs' motion for a preliminary injunction, even though the Court is doubtful that all the statutes cited by plaintiffs support their position. Of great probative weight are the March 30, 1970 Report of the Bureau of Sport Fisheries and Wildlife, the June 5, 1970 letter from former Secretary of the Interior, Walter J. Hickel to Secretary of the Army, Stanley R. Resor, and the December 28, 1970 letter from C. H. Stoddard, Chairman of the Environmental Advisory Board of the Corps of Engineers to Mr. William Partington, President of the plaintiff Florida Defenders of the Environment. All three documents affirm the need for an in depth reevaluation of the Canal project with respect to its environmental impact. The inexorable conclusion is that there is a strong probability that further construction and related operations as now planned might irreparably damage marine and plant life and a primary source of drinking water for the State of Florida. For this there would be no adequate remedy at law. 5 U.S.C. § 704.

 The public interest in avoiding, if possible, any irreversible damage to the already endangered environment is paramount. And the relatively short delay in construction that will be occasioned by a decision on the merits poses minimal risk of damage to the defendants in view of the extensive time anticipated for remaining construction. Indeed, further expenditure of public funds at this time may be wasted to the extent of any decision on the merits adverse to the defendants.

 Lastly, the Court is convinced that the plaintiffs are likely to succeed in demonstrating that the defendants have not sufficiently complied with the requirements of certain of the cited statutes -- particularly the National Environmental Policy Act, supra, the Fish and Wildlife Coordinating Act, supra, and the Act of July 23, 1942, supra. The NEPA recognizes a "continuing responsibility of the Federal Government" to strive to preserve and enhance the environment, and requires a detailed and systematic consideration of the environmental impact of Federal actions. The Fish and Wildlife Coordinating Act requires careful and specific consideration of the environmental impact of all alterations of waterways. And there is evidence that the Act of July 23, 1942 was based on a clear intent not to damage the underground water resources of Florida. Failure to fully comply with these mandates warrants delay of further construction in the manner currently contemplated.

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 I. findings of fact

 1. The Cross-Florida Barge Canal was authorized by Congress as a national ...


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