MEMORANDUM OPINION NUMBER FIVE
EISELE, District Judge.
This case was tried to the Court on its merits on February 8, 9 and 10, 1971. At the conclusion of the trial, the case was argued orally by the attorneys. The parties were then given until February 16, 1971, within which to submit proposed findings of fact and conclusions of law. Upon receipt thereof the case was taken under submission by the Court. This opinion will constitute the Court's fifth and final memorandum in this case.
In its letter memorandum of December 22, 1970, the Court stated:
Later in that opinion the Court stated:
On January 21, 1971, the Court filed its "Memorandum Opinion Number Four," which dealt specifically with plaintiffs' "First Cause of Action," which is based upon the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq., (hereinafter referred to as NEPA). At page 9 of that opinion the Court stated that the testimony "left the general impression with the Court that, if no work had been done on the Gillham Dam project, the defendants would be approaching the environmental impact study with a different, more open-minded, attitude." This determination was reinforced and documented by the testimony introduced at the trial on the merits.
Much weight was given by the defendants, both at the original hearing and at the trial on the merits, to the fact that the project was approximately two-thirds completed. In commenting on this point the Court stated in its Memorandum Opinion Number Four:
Later in that memorandum, the Court analyzed the "Environmental Statement" (Plaintiffs' Exhibit 7) and pointed out the various environmental "impacts" suggested by the plaintiffs which had not been evaluated by the defendants or described adequately in the impact statement. The Court concluded:
No "additional studies or hearings" were undertaken by defendants between the conclusion of the November hearing and the February hearing upon the merits.
On January 21, 1971, the plaintiffs filed a "Motion for Leave to File First Amendment to Complaint." On February 2, 1971, this motion was granted. The amendment set forth the plaintiffs' "Tenth Cause of Action" and "Eleventh Cause of Action." The latter is germane here because it makes explicit the contentions of plaintiffs with respect to the environmental impact statement filed by the defendants on October 5, 1970, after the commencement of the suit. The plaintiffs contend that said statement was not in fact a "detailed statement" within the meaning of § 102 of NEPA, did not adequately and properly cover the subjects required by the statute, and did not substantially comply with the "Interim Guidelines" issued by the Council on Environmental Quality.
Although a "new'`' impact statement was filed by the defendants on January 22, 1971, (Defendants' Exhibit 12), the Court has concluded that the latter is essentially the same as the one filed in October, 1970. Both fall far short of the requirements of the law. The "new" statement does not even treat of problems brought out by the testimony in the November hearing. See discussion below.
Upon the basis of the evidence and the law, the Court now concludes that the plaintiffs are entitled to an order enjoining the defendants from continuing with the Gillham Dam project and, more particularly, with the construction of the embankment across the Cossatot River, unless and until they comply with the provisions of NEPA. A final order is being entered accordingly.
The Court here adopts by reference all findings of fact and conclusions of law contained in each of its prior memoranda, excepting only as same may be inconsistent with, or changed or modified by, the findings and conclusions set forth below.
Before discussing plaintiffs' "First Cause of Action" and "Eleventh Cause of Action," the Court wishes to make explicit its rulings on all other matters.
The Court is of the opinion that the plaintiffs' second, third, and tenth causes of action should be dismissed. This determination means that, of the plaintiffs' eleven asserted "causes of action," the Court is entering its order dismissing all but the first and the eleventh.
In its third memorandum, dated December 22, 1970, the Court indicated its intention to dismiss plaintiffs' fourth, fifth, sixth, seventh, eighth and ninth causes of action. In that opinion it tentatively left open the issues raised by plaintiffs' second and third causes of action. With respect to these causes of action the Court there stated:
The Court is now more convinced than ever that the doubts it expressed with respect to plaintiffs' second and third causes of action were well founded. It has concluded that the facts alleged would not independently form the basis for granting the plaintiffs the relief they seek, to-wit, an injunction prohibiting further work on the Gillham project. However, as the Court interprets NEPA, the defendants' failure to comply with the requirements of the Fish and Wildlife Coordination Act of 1934, or with the Act of June 20, 1938, 33 U.S.C. § 540, would be matters that the plaintiffs could properly attempt to prove under the allegations set forth in their first and eleventh causes of action, since departures from the congressional policies set forth in those acts, if there were any such departures, should be acknowledged in any "detailed statement" required by § 102 of NEPA. The Court, therefore, while dismissing the second and third causes of action for failing to state claims upon which relief can be granted, wishes to make it clear that such action does not mean that the facts alleged in those causes of action would be irrelevant to the plaintiffs' claims as set forth in their first and eleventh causes of action. This view was suggested in the Court's Third Memorandum when it stated:
Plaintiffs' "Tenth Cause of Action" is based upon the contention that the defendants, in the construction of the Gillham Dam, are proceeding in excess of, and in violation of, their purported authority. The dam was authorized by the Act of July 3, 1958, 72 Stat. 297, Public Law 85-500. That law provides that the Gillham Dam project is authorized substantially in accordance with the recommendations of the Chief of Engineers in House Document 170, 85th Congress, 1st Session. Plaintiffs contend that defendants are exceeding their authority, since the proportion of benefits now claimed for "water supply" is substantially less than that specified in House Document 170, and, further, that the defendants are now purporting to justify the project by reference to purposes not mentioned in House Document 170, including "water quality control," "fish and wildlife," and "redevelopment."
It is the Court's opinion that it is the sole prerogative of the Congress of the
This brings us to the heart of the case which involves the interpretation and application of NEPA.
Plaintiffs contend that NEPA creates some "substantive" rights in addition to its procedural requirements. They base this contention on the language contained in § 101 of the Act. Although the Court may be oversimplifying their position in this respect, essentially they claim that the Act creates rights in the plaintiffs and others to "safe, healthful, productive, and esthetically and culturally pleasing surroundings;" and to "an environment which supports diversity and variety of individual choice," and "the widest range of beneficial values." See § 101(b). The Court disagrees.
Section 101(a) takes note of the environmental problems facing the nation and then declares it to be the policy of the federal government to use all practical means "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." In order to carry out this policy, § 101(b) declares it to be the "continuing responsibility of the Federal Government to use all practicable means * * * to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —" attain certain stated objectives, including those, quoted above, which plaintiffs contend create substantive rights.
The Act appears to reflect a compromise which, in the opinion of the Court, falls short of creating the type of "substantive rights" claimed by the plaintiffs. Apparently the sponsors could obtain agreement only upon an Act which declared the national environmental policy. This represents a giant step, but just a step. It is true that the Act required the government "to improve and coordinate Federal plans, functions, programs, and resources," but it does not purport to vest in the plaintiffs, or anyone else, a "right" to the type of environment envisioned therein.
In the instant case it is clear that the damming of the Cossatot will reduce "diversity and variety of individual choice." It is apparently plaintiffs' view that upon the basis of such a finding the Court would have the power, and duty, ultimately and finally to prohibit the construction of the dam across the Cossatot. No reasonable interpretation of the Act would permit this conclusion. If the Congress had intended to leave it to the courts to determine such matters; if, indeed, it had intended to give up its own prerogatives and those of the executive agencies in this respect, it certainly would have used explicit language to accomplish such a far-reaching objective. In view of this interpretation of NEPA by the Court, the plaintiffs are relegated to the "procedural" requirements of the Act.
Section 102, in pertinent part, provides:
The defendants practically concede that, if we were dealing here with a new project, they would not be in compliance with NEPA, or with the Interim Guidelines issued by the Council on Environmental Quality, 35 Fed.Reg. 7390, or with their own regulations, such as that contained in Plaintiffs' Exhibit 31, which is designated "E.C. 1120-2-56," issued September 25, 1970. But they strongly suggest that NEPA permits a "double standard" with respect to ongoing projects (such as the Gillham Dam project) which were well under way at the time of the passage of NEPA. The Court does not fully agree, or fully disagree, with this contention. To again quote from the Court's fourth memorandum:
The Court is of the opinion that the defendants may approach the problem of the ongoing project differently from a new project, but the end product should
A memorandum from the Honorable David Packard, Deputy Secretary of Defense, dated August 8, 1970, directed to the Secretary of the Army, among others, upon the subject "Interim Guidelines on Environmental Statements," which the Court notices, states in part:
The building of the embankment across the Cossatot is obviously a "further incremental major action" within the meaning of Mr. Packard's memorandum. It is also obvious that the impact statements of October 5, 1970, and January 22, 1971, did not take into account "environmental consequences not fully evaluated at the outset" of the Gillham Dam project. See discussion below.
But it is not necessary to look at administrative interpretations of the law. The NEPA itself is clear. That Act was not complied with here for the following reasons, among others:
(1) The defendants did not "utilize a systematic, interdisciplinary approach" in evaluating the environmental impact of the dam, which would "insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment" as required by § 102(2) (A). Here again it can be argued that this provision should be restricted to the planning and decisionmaking with respect to new projects. The Court thinks otherwise. It is not too late to use such an approach in the compiling of information required in the impact statement, which information could then be taken into consideration in determining to go forward with the project, to abandon the project, or to restudy the whole matter.
(2) It does not appear that methods and procedures have been developed in consultation with the Council on Environmental Quality which would permit the defendants to assign values to presently unquantified environmental amenities, so that such values might be taken into consideration in decisionmaking along with economic and technical considerations as required by § 102(2) (B). As a result, the defendants have been unable, as a practical matter, to take into consideration, in estimating costs and benefits, the "value" of the Cossatot as a free-flowing stream. The plaintiffs point out that if such value could be quantified, and if it were thereby assigned a value in excess of 5.5 million dollars, then the benefit-cost ratio for this project would decline to less than one, assuming the utilization of an interest rate of 5¼% as presently recommended for use by the Water Resources Council with respect to new projects.
The testimony of Dr. Frank Craighead, a nationally known ecologist, indicates that it is possible to develop criteria in order to quantify "presently unquantified environmental amenities and values." In fact, this has been done by the classification method adopted in the Wild and Scenic Rivers Act, which Dr. Craighead helped to draft. So even at
The Court is not here stating that an environmental impact statement, as required by § 102(2) (C), would be inadequate simply because the defendants and the Council on Environmental Quality had not identified and developed the methods and procedures to quantify such values. The NEPA does not require the impossible. Nor would it require, in effect, a moratorium on all projects which had an environmental impact while awaiting compliance with § 102(2) (B). It would suffice if the statement pointed out this deficiency. The decisionmakers could then determine whether any purpose would be served in delaying the project while awaiting the development of such criteria.
(3) The statements did not set forth all of the environmental impacts (which would result from the construction of the embankment), which are known to the defendants by their own investigations or which have been brought to their attention by others.
(4) The statements do not adequately set forth the "adverse environmental effects which can not be avoided" should the dam be built as planned.
(5) The statements do not adequately explore the "alternatives to the proposed action."
(6) The statements do not adequately bring to the reader's attention all "irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."
(7) The evidence does not indicate that, prior to making the statements, the defendants did "consult with and obtain the comments of" all Federal agencies which have "jurisdiction by law or special expertise with respect to any environmental impact involved."
(8) The statements do not include the "comments and views" of all appropriate "State and local agencies which are authorized to develop and enforce environmental standards."
(9) The evidence does not indicate that the "statements and comments and views" of all of the appropriate Federal, State and local agencies did "accompany the proposal through the existing agency review process."
(10) Neither the statements themselves, nor the evidence introduced, indicates that the defendants have studied, developed or described "appropriate alternatives to recommended courses of action" in connection with this project, which project clearly "involves unresolved conflicts concerning alternative uses of available resources." Section 102(2) (D).
The Court in its Memorandum Opinion Number Four discussed the deficiencies of the first impact statement. On January 22, 1971, the defendants filed a new or "updated" environmental impact statement with the Council on Environmental Quality. This statement is in evidence as Defendants' Exhibit 12. It is not substantially different from the original impact statement, Plaintiffs' Exhibit 7, which was filed on October 5, 1970. In the making of the original and the new impact statements, the defendants simply "recast" the information already in their files. The testimony of the defendants is very candid and forthright in this respect. They felt that such an approach was the only "practical" means of handling impact statements for this type of project. No attempt was made to consider environmental consequences that were not fully considered or evaluated previously during the life of the project. Furthermore, in revising their
No new studies have been made by the defendants on the Gillham Dam project since the enactment of NEPA. The defendants began drafting the environmental impact statement on this project on July 7, 1970, and continued to work on the statement until January, 1971, but no new information was gathered for this purpose.
At the very least, NEPA is an environmental full disclosure law. The Congress, by enacting it, may not have intended to alter the then existing decisionmaking responsibilities or to take away any then existing freedom of decisionmaking, but it certainly intended to make such decisionmaking more responsive and more responsible.
The "detailed statement" required by § 102(2) (C) should, at a minimum, contain such information as will alert the President, the Council on Environmental Quality, the public, and, indeed, the Congress, to all known possible environmental consequences of proposed agency action. Where experts, or concerned public or private organizations, or even ordinary lay citizens, bring to the attention of the responsible agency environmental impacts which they contend will result from the proposed agency action, then the § 102 statement should set forth these contentions and opinions, even if the responsible agency finds no merit in them whatsoever. Of course, the § 102 statement can and should also contain the opinion of the responsible agency with respect to all such viewpoints. The record should be complete. Then, if the decisionmakers choose to ignore such factors, they will be doing so with their eyes wide open.
The inadequacies of the defendants' impact statements become quite apparent when one examines the evidence introduced at the preliminary hearing in November and at the hearing on the merits in February, 1971. (Note: It was understood and agreed that the evidence introduced at the November hearing would not be repeated but would be considered, where relevant, as part of the evidence in the trial on the merits. An analysis of much of the testimony introduced at the original hearing will be found in the Court's Memorandum Opinion Number Four and will not be repeated here.)
Both the new and old impact statements refer to certain benefits which defendants claim will result from the completion of the project. These include enhanced water quality, a source of dependable water supply, enhanced fish and wildlife, outdoor recreational opportunities, economic redevelopment, enhanced value of the lands adjacent to the river and downstream from the dam, enhanced natural beauty, and flood control. The statement sets forth the currently estimated benefit-to-cost ratio of 2.2 to 1.0, with over 75% of the total annual benefits of $1,191,000 derived from flood control.
Although the impact statements refer to the creation of outdoor recreational opportunities, the defendants do not "formally" claim recreational benefits as part of their benefit-to-cost ratio. The evidence reflects that no effort has been made to determine whether any recreational losses or "costs" will result from the damming of the Cossatot. It seems obvious that if it is asserted that the project will result in increased recreational opportunities, then some effort should be made to compare this claimed benefit with the "cost," if any, which will result from the destruction of stream-type recreation, which is clearly becoming increasingly scarce in the region in which the Cossatot is located.
The trial of this case brought out and dramatized the differing viewpoints and interests in the various agencies and departments within the federal government itself. Many of the plaintiffs' witnesses have worked actively with governmental
Although the defendants, in response to Mr. Wood's request, sent him a copy of the impact statement and specifically asked for his comments by October 15, 1970, Mr. Wood indicated that his office had not had an opportunity to review the matter and to make its comments and views known to the defendants. The defendants, therefore, did not include any comments from BOR in the impact statements as filed. (Note: The defendants did not send to Mr. Wood's office, prior to the hearing on the merits, a copy of their second impact statement.)
Mr. Wood expressed a high regard for the flat water recreational opportunities which have been created as a result of the damming of many rivers and streams in Arkansas. Nevertheless, it was clearly his opinion that we were reaching the point of oversupply of flat water recreation in comparison with the ever-diminishing resource of stream-type recreation. His plea was for variety and diversity. He would strive to create a balance in recreational opportunities in the area. One of the defendants' witnesses, Mr. Robert Jenkins, Director of the National Reservoir Research Program for the Division of River Basin Studies of the Fish and Wildlife Service of the Department of the Interior, appears (not only from his testimony but from his published works) to agree with Mr. Wood's professional opinion.
It cannot be doubted that the damming of the Cossatot will reduce the diversity and variety of choice of recreational opportunities and will reduce the choice of beneficial uses of the environment in that region. It should be noted that the proof indicated that approximately one third of all fresh water anglers in the United States prefer stream-type fishing to lake-type fishing.
Although the impact statement claims benefits for enhanced fish and wildlife, the evidence indicates that there are a number of serious possibilities for injury to fish and wildlife which might occur if the dam is constructed. These possibilities have not been adequately explored by the defendants. In addition to such possibilities which were referred to in the Court's Memorandum Number Four, the testimony at the trial in February indicates that the changed ecology resulting from the construction of the dam might result in a dramatic increase in the population of black flies and mosquitoes because of the substantial reduction in the numbers of fish that feed upon the larvae of these insects.
It appears that neither the defendants nor anyone else has yet made a complete "collection" or inventory of the fish life of the Cossatot. Plaintiffs' witness Dr. Clark Hubbs, a prominent ichthyologist, was of the opinion that such a collection would be the beginning point of any serious study of the possible consequences of the construction of the dam upon the stream's fish life. There was evidence that such a collection might take anywhere from six months to a year to complete. Several more years might be required for a follow-up or physiology study. The Court is not here stating that such a collection or study would be required in order to comply with NEPA. But the opinions of such qualified professionals as Dr. Hubbs and Dr. Emlen should be made a part of the impact statement. The decisionmakers can then determine whether to proceed without such a study or to postpone the project while such study is being undertaken.
As is traditional with projects of this type, defendants have placed a great deal of emphasis upon economic factors and the economic "benefits" which they claim will result from the implementation of the project. Their claims in this respect should be included in any fully developed impact statement. The NEPA contemplates that environmental factors should be taken into consideration "in decisionmaking along with economic and technical considerations."
Section 102(2) (C) (iii) requires the impact statement to discuss the alternatives to the proposed action. The most glaring deficiency in this respect is the failure to set forth and fully describe the alternative of leaving the Cossatot alone. Furthermore, the statement does not adequately consider nonstructural alternatives for flood control, such as flood plain management (although defendants referred to it in the impact statement), private or publicly subsidized insurance, or outright acquisition of the fee title to the land in the flood plain.
The impact statement does not discuss the "dry pool" reservoir alternative
Although it is not of too much consequence, in the Court's opinion, the evidence at the February hearing indicates that, statistically, a flood such as that which occurred in 1968 (the maximum flood of record on the Cossatot River) can be expected to occur with a frequency of once in between 100 and 200 years, rather than with a frequency of once in every 40 years as suggested by the testimony at the preliminary hearing. That evidence also indicates that there is no record of the stream ever being without flow. The minimum flow registered was 1.2 cubic feet per second. The plaintiffs also proved at the February hearing that, had the Gillham Dam, as planned, been in place at the time of the 1968 flood, the stage of the river would have been reduced from 22.6 feet to 19.6 feet. But the Court notes that this 3-foot reduction in stage would have dramatically decreased the flooding and consequent flood damage.
It is clear why an overwhelming majority of the people living near the Cossatot, and particularly along its lower reaches, are so strongly in favor of the construction of the dam. Their interests and viewpoints should, of course, be carefully set forth in the impact statement along with the views of those who oppose the project. Their economic interests, the obvious flood control benefits along the lower reaches of the Cossatot (which would result from the construction of the dam), and the degree of the completion of the project, might, indeed, outweigh all other considerations in the view of the decisionmaker. But, again, the NEPA attempts to establish a procedure which will insure that that decisionmaker is aware of all known alternatives and possible consequences at the time the decision is made.
If it is necessary to spend large sums of money to adequately comply with the requirements of NEPA, it would be relevant in interpreting the provisions of that Act to ascertain if such funds were made available, or are available, to meet the requirements of the Act. The testimony in this respect was somewhat confusing. But the Court concludes that the defendants may utilize existing resources, which are adequate, for such purposes. Of course, this would be a problem only in the current year. In the future, the affected agencies can request as part of their annual budget requirements appropriations to comply with NEPA.
The defendants argue that the making of appropriations for this project on a continuing and yearly basis evidences the legislative intent that the project should be completed without regard to NEPA. The Court does not agree with this argument. It is more reasonable to assume that the Congress, in making annual appropriations for such projects, assumes that the responsible agencies are complying with all applicable laws. Furthermore, the report of the Senate Committee on Appropriations on HR 18127, 91st Congress, 2d Session (S.Rep. No. 91-118,
The Court concludes that the Complaint should be dismissed as to the "Corps of Engineers of the United States Army;" that plaintiffs' First and Eleventh Causes of Action set forth claims upon which relief can be granted against the remaining defendants; that, since said defendants have not complied with the provisions of NEPA, they are proceeding in excess of their statutory authority and, therefore, this suit is not barred by the doctrine of sovereign immunity; that the Court has jurisdiction of the parties and the subject matter; that compliance with the requirements of NEPA is a condition precedent to the named individual defendants' exercise of their authority to proceed with the Gillham Dam project, since the construction of the dam is a "major Federal action significantly affecting the quality of the human environment" within the meaning of § 102(2) (C) of NEPA; that, unless restrained, the defendants will proceed to sign and execute a construction contract for the embankment across the Cossatot and for the clearing of the reservoir area; that plaintiffs have no adequate remedy at law; that plaintiffs will be irreparably injured if the defendants are not enjoined from proceeding with the Gillham Dam project; that neither of the environmental impact statements filed by the defendants is a "detailed statement" within the meaning of § 102(2) (C) of the National Environmental Policy Act of 1969; and that the Gillham Dam project involves unresolved conflicts concerning alternative uses of the available resources, but, nevertheless, defendants have not complied with the requirements of § 102(2) (D) of NEPA. These conclusions are in addition to those contained elsewhere in this memorandum and in all prior memorandum opinions entered herein.
As pointed out in the Court's third memorandum, the defendants have at all times been free to proceed administratively in order to comply with the provisions of NEPA. They could, indeed, have done so after the hearing in November. They can do so now. At any time when the defendants are in a position to tender, and do so tender, to the Court evidence of their compliance with NEPA, the injunction will be dissolved.