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Story v. Marsh

Citation: 14 ELR 20608
No. Nos. 83-1643, -1644, 732 F.2d 1375/(8th Cir., 04/13/1984)

The court holds that the Army Corps of Engineer's revision of its plan for creating artifical crevasses in a Birds Point-New Madrid Floodway levee in case of flood did not violate the National Environmental Policy Act (NEPA) or the Administrative Procedure Act, nor is it barred by estoppel. The court first holds that the Corps' choice of locations to artificially crevasse the levee was committed to agency discretion by law and is therefore unreviewable. The Flood Control Act of 1965 authorizes the Corps to breach the levee artificially, but specifies no standards for selecting the locations of the breaches. Even if the decision were reviewable, the court holds that the administrative record supports the decision as neither arbitrary and capricious nor an abuse of discretion.

The court then holds that the Corps complied with NEPA. Although the Corps' environmental impact statement did not discuss the possibility that the artificial crevassing could trigger an earthquake, NEPA only requires the Corps to address reasonably expected environmental consequences. Evidence admitted at trial suggested a damaging earthquake was not a possible consequence of use of the floodway.

Estoppel does not bar the Corps from adopting its present plan. Though the Corps obtained flowage easements from levee landowners based on representations that the Corps planned to limit artificial crevassing, those representations were not false when made. Nor, in the alternative, could the representations reasonably be construed to be promises to adhere to limited crevassing plans, especially since the easements clearly granted unlimited crevassing rights.

The Corps' change of plan, though a rulemaking, did not require notice and opportunity for public comment. The plan is not a substantive rule, because it does not affect individual rights and obligations. As a procedural rule, it does not require notice and comment.

Finally, the court holds that even though the Corps may have failed to obtain all necessary easements to operate the floodway, the landowners' proper remedy is damages under the Tucker Act, not an injunction. The court remands the case to allow the Corps to condemn the easements it seeks, and reverses the district court's requirement that the Corps deposit $10.4 million — the court's estimated cost of repairing the levee after operation of the floodway — as just compensation.

Counsel for Appellant
Edwin B. Brzezinski, Ass't U.S. Attorney
414 U.S. Ct. & Custom House, 1114 Market St., St. Louis MO 63101
(314) 425-5885

Phillip M. Zeidner, Rebecca Donnellan, Jacques B. Gelin, Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-8435

Counsel for Appellees
Stephen E. Strom
Finch, Bradshaw, Stom & Steele
325 Broadway, Cape Girardeau MO 63701
(314) 334-0555

James E. Reeves
Ward & Reeves
711 Ward Ave., Caruthersville MO 63830
(314) 333-2396

Counsel for Amicus Curiae
James W. Herron, Richard A. Wunderlich
Lewis, Rice, Tucker, Allen & Chubb
1400 Railway Exchange Bldg., 610 Olive St., St. Louis MO 63101
(314) 231-5833

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.