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Sierra Club v. Froehlke

Citation: 6 ELR 20448
No. No. 75-1252, 534 F.2d 1289/8 ERC 1944/(8th Cir., 04/23/1976) Aff'd

The Eighth Circuit Court of Appeals affirms a lower court's denial of injunctive relief against construction of the Meramec Park Lake Dam near St. Louis, Missouri. The plaintiffs fail to prove that he project violates both NEPA and the Endangered Species Act of 1973. The revised environmental impact statement contains a full discussion of possible alternatives to the proposed project, including flood plain acquisition. The EIS also gave adequate consideration to the effects of the dam on the Indiana bat, an endangered species. The statement is sufficient to put the decisionmakers and other interested persons on notice as to the significant consequences to the bat which can be expected from the proposed action. A more detailed discussion is not required in view of the limited knowledge available about this bat and its characteristics. Because the Meramec Dam project does not constitute an irretrievable commitment of resources toward completion of the overall Meramec Basin Plan and would operate independently from the other dams that the plan calls for, the project EIS was not required to consider the impacts of the entire Basin Plan. Moreover, the district court was not clearly erroneous in concluding that plaintiffs have failed to meet their burden of establishing by a preponderance of the evidence that the substantive decision to proceed with the project was arbitrary and capricious under NEPA. The record indicates that the Corps undertook the statutorily required balancing of project benefits on the one hand against the dam's environmental impacts on the other.

Plaintiffs' claims that continuation of the project violates §§ 7 and 9 of the Endangered Species Act of 1973 are also in error, since they are based on a misreading of the Act. Section 7 requires that the Corps of Engineers act "in consultation with" the Secretary of the Interior to insure that the dam does not jeopardize the continued existence of the Indiana bat by flooding certain caves inhabited by bat populations. When, as happened here, a difference of opinion arises between the two agencies as to whether the project will in fact jeopardize an endangered species, the ultimate responsibility for deciding how to proceed rests with the project agency.The lower court correctly held that the Corps' substantive decision to proceed with the project was neither arbitrary nor capricious under § 7. The related allegation that the dam project constitutes an illegal "taking" of bats within the meaninf of $9 because no permit has been issued under the Act is likewise mistaken. The project can not reasonably be interpreted as a "clear attempt to harm or harase" the bat. The court finds no error in the district court's determination that the evidence presented at trial failed to demonstrate that the Corps' present activities in constructing the dam are adversely affecting bats in the project area.

For the district court's opinion, here affirmed, see 5 ELR 20456.

Counsel for Plaintiffs-Appellants
Alan C. Kohn
Kohn, Shards, Elbert, Gianoulakis & Giljum
411 North Seventh St.
St. Louis MO 63101
(314) 241-3963

Counsel for Defendants-Appellees
Donald J. Stohr, U.S. Attorney
U.S. Courthouse
1114 Market St.
St. Louis MO 63101
(314) 425-4200

For himself, Heaney & Stephenson, JJ.