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Izaak Walton League of Am. v. Marsh

Citation: 11 ELR 20707
No. Nos. 79-2529 et al., 655 F.2d 346/16 ERC 1357/(D.C. Cir., 04/24/1981) Aff'd in part

Affirming in part and reversing in part a district court decision, 10 ELR 20187, the court allows the Army Corps of Engineers to proceed with its post-authorization planning for Locks and Dam 26 on the upper Mississippi River. It holds that a cost-benefit study prepared by the Corps prior to congressional authorization of he project is not subject to judicial review. Although the Rivers and Habors and Flood Control Act of 1970, the Department of Transportation Act, the Water Resources Planning Act, and other statutes and regulations establish standards that the Corps must apply in evaluating federal water projects, these standards are primarily for the benefit of Congress. Judicial review of the analysis on which congressional authorization was based would interfere with the legislative process. At the post-authorization stage, the planning standards do not require the Corps to reevaluate the project where it concludes that there has been no significant change in circumstances. The Corps' conclusion that there has been no such change was not arbitrary or capricious. On the other hand, the Corps' compliance with the National Environmental Policy Act (NEPA) is judicially reviewable since the environmental impact statements (EISs) mandated by the Act are designed to benefit the public as well as Congress. Moreover, NEPA's application to Locks and Dam 26 was not repealed by the project's authorizing legislation. That legislation contains no express provision overriding NEPA, and a repeal by implication should be found only in the rarest of circumstances. Reviewing the cost-benefit analysis as an element of the Corps' EIS, the court concludes that its treatment of certain disputed cost elements was not arbitrary. The failure to disclose the sources of certain data was proper because such sources may be treated as trade secrets by the agency. The EIS is adequate in its consideration of alternatives; the Corps adequately examined the refurbishment alternative and it was not necessary that it consider the establishment of a "congestion toll," since that alternative was outside its legislative authority. No programmatic EIS was required because there is no evidence that the Corps is planning the large scale navigation improvements alleged by appellants. The court also upholds the Corps' conclusion that the relatively minsor physical effects of the project obviated the commissioning of a major biological study. Finally, the Corps is not required to conduct an adjudicatory hearing during post-authorization planning. It must, however, comply with he requirement of its own regulations for one or more public meetings. Although the court declines to enjoin further planning or construction of Lock and Dam 26, it orders the Corps to conduct a public meeting and to respond to the comments received.

Counsel for Appellants
Joseph V. Karaganis, Sanford R. Gail, Alan Bruce White
Karaganis & Gail
Suite 2500, 150 N. Wacker Dr., Chicago IL 60606
(312) 782-1905

Jon T. Brown
Brown & Roady
Suite 1070, 1333 New Hampshire Ave. NW, Washington DC 20036
(202) 466-6142

Joseph D. Feeney
Western R.R. Ass'n, Rm. 1200, 222 S. Riverside Plaza, Chicago IL 60606
(312) 648-7812

George V. Allen Jr., Ramsey D. Potts, William P. Barr
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Counsel for Appellees
Dirk D. Snel, Jacques B. Gelin; James W. Moorman, Ass't Attorney General; Sanford Sagalkin, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before WRIGHT and ROBB, Circuit Judges, and PENN,* District Judge.