2,606.84 Acres of Land v. United States

No. 1316 (U.S. April 19, 1971)

Petition for certiorari denied without opinion. Justices Douglas and Black, in dissent, express concern that in preparing for the construction of the Benbrook Dam and Reservoir Project, authorized by Congress in 1945, the Army Corps of Engineers has exceeded its statutory authority by taking petitioner's land for unauthorized recreational purposes in connection with a dam and reservoir which will be in a different location and will be larger and more expensive than the project approved by Congress. The dissenters note that although this project is still in the pre-construction stages, the Corps has failed to comply with the requirement that an environmental impact statement be prepared under the National Environmental Policy Act, 42 U.S.C. § 4332. Consequently the dissenters would grant the petition for certiorari.

Counsel for Petitioners:
E. Barret Prettyman, Jr.
Hogan & Hartson
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 298-5500

Counsel for Respondents:
Erwin N. Griswold
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 737-8200

[1 ELR 20155]

The petition for a writ of certiorari is denied.

[1 ELR 20155]

MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins. dissenting.

[1 ELR 20156]

In 1945 Congress authorized the Benbrook Dam and Reservoir Project on the Clear Fork of the Trinity River near the southwest outskirts of Fort Worth, Texas. The authorization stated in part:

The improvement of the Trinity River and tributaries, Texas, for navigation, flood control, and allied purposes is hereby approved and authorized in accordance with the reports contained in House Document Numbered 403, Seventy-seventh Congress. Pub. L. No. 79-14, § 2, 59 Stat. 10.

The project described in House Document 403 called for a gated spillway dam to be located on the Clear Fork at river mile 11.3. The storage capacity of the reservoir in acre feet of water was to be dead storage, 603; conservation storage, 30,603; and controlled (combined conservation and flood control) storage 208,850. The elevation of the spillway crest was 672 feet and the top of the dam was 702 feet. Approximately 6,200 acres of land would have been required. Projected cost of the land was $483,000 and the entire project was estimated to cost about $5,205,502.

The project that was subsequently built bears little resemblance to the one described in House Document 403.It is located 3.7 miles farther upstream at river mile 15.It is an uncontrolled spillway type. The notch crest of the spillway is 710 feet, and the main spillway crest is 724 feet. The top of the dam is 747 feet. The storage capacity in acre feet of water as stated by the Definite Project Report is dead storage, 17,750; Conservation storage, 88,250; and controlled storage 410,013. Over 13,000 acres of land were acquired at a cost of about $2,500,000; total project cost was well over $14,000,000.

This case arose when the United States filed a petition for condemnation of petitioner's land in federal district court. Some 1,207 acres were finally sought. Of this land some lies below the elevation of 697.1 feet (conservation pool elevation, the maximum water level of the pool below flood stage). That land below elevation 697.1 is not involved in the case here. But some 647 acres lies above that elevation. The Army Corps of Engineers took that land for recreation purposes. Petitioner claims that taking is not authorized by land. Petitioner has consistently contended that the land was taken for recreation purposes and that was not authorized under statutes authorizing the Benbrook Project and that the project, as built, was so radically and materially changed that it had to be resubmitted to Congress for a new authorization.

Shortly after the Government filed its petition. Petitioner instituted discovery proceedings. The Secretary of the Army refused to submit and the District Court abated the cause with bare legal title left in the Government and possession restored to petitioner pending the Government's obedience to the court's discovery orders. The Court of Appeals for the Fifth Circuit affirmed this action. United States v. Richardson, 204 F.2d 552 (1952). Some 10 years later the Government submitted to discovery and discovery showed, as General Sturgis, Chief of the Corps, admitted to a congressional subcommittee, that "it could have been very embarrassing to have justified his [the Secretary's] certification of the public need of all this particular taking."¹

Between a congressional investigation and discovery in this case certain facts about this case emerged. Petitioner alleges that prior to 1953 the Corps had a "field practice" of taking more property than was authorized in order to create land for purely recreational purposes. According to the District Court, almost simultaneously with the 1945 authorization the Corps in the present case began its plans for twice as much land as had been authorized with much of the excess for purely recreational purposes. Maps were prepared showing the locations of the recreational facilities. The final recreational plans for the project were in the form of Appendix VIII E to the Definite Project Report. In preliminary drafts certain proposed expenses were designated as "for recreation," but in final drafts they were credited to "preparation of master plan." Similarly the maps initially showed "recreation areas," but in final stages the label was changed to "reservoir management." In addition Appendix VIII E was stamped "Not for Public Release." According to the District Court, no other appendix was so classified.

Justification for the excess land was necessary.The District Court found that to accomplish this, the Corps created the Great Storm and used their Great Storm as a basis for their spillway design on the dam as built. It is said that the storm will indeed be great, if it ever comes, dumping some 28.2 inches of rain in the area within a 60-hour period. The likelihood of this happening is said not to be high. Average annual rainfall in the area is 31.3 inches. The greatest storm ever recorded there dropped 12.57 inches in a 57-hour period. The District Court says the Great Storm was invented from a storm near Thrall, Texas in 1921. Thrall is 130 miles from the Gulf of Mexico and over 150 miles from the Benbrook Project. The Thrall storm dropped an uncertain amount of rain and reports of the amount increased as the years passed. The District Court found that in all probability about 18-19 inches were dropped in a three-day period in Thrall.

But even with the Great Storm, record breaking though it would be, the District Court found that the Corps could not justify the height of the spillway necessary to obtain the land it wanted for recreational purposes. But one Great Storm deserves another and that, it is said, is what the Corps postulated. The Great Storm was assumed to come right after another big storm had dropped large amounts of rain in the area, thus preventing any opening of the dam gates. Furthermore none of the spillway design criteria made any allowance for the well-established reservoir management practice of lowering the level of water during potential flood months. And large floods have only occurred duing three months of the year in the Fort Worth area.

The District Court found that the taking of petitioners land for recreational purpose was lawless. The Court of Appeals for the Fifth Circuit reversed concluding that recreational development was an "allied purpose" within the meaning of the project authorization and also concluding the modifications were proper and needed no further authorization.

From the Solicitor General's brief in opposition there is much we do not know about the Government position. There have been congressional inquiries into the Corps actions in taking more land than necessary for projects which it is building. "Army-Interior Reservoir Land Acquisition Policy," Hearings before a House Subcommittee on the Committee on Government Operations, [1 ELR 20157] 85th Cong., 1st Sess. (1957); "Investigation of Corps of Engineers Civil Works Program," Report of the House Subcommittee on Deficiencies and Army Civil Functions of the Committee on Appropriations, 82d Cong., 1st Sess. (1951). The Solicitor General does not discuss the affect of these reports on this litigation.

Further, there is some relevant statutory material which the Solicitor General does not discuss or cite. Section 701b-8 of Title 33 states that "no . . . modification not authorized, of a project . . . shall be authorized . . . unless a report for such . . . modification has been previously submitted by the Chief of Engineers . . . in conformity with existing law." Section 701m authorizes the Corps to make a dam smaller than originally planned, but does not authorize making a dam larger, as happened here. Section 701 requires reports for projects or modifications covering, inter alia, "the extent and character of the area to be affected by the proposed improvement" and "such other uses as may be properly related to or coordinated with the project."

Finally we do not know to what use the land has been put. If there is no development yet, what are the current plans? The National Environmental Policy Act, 42 U.S.C. § 4331, requires environmental impact statements for proposed projects.² So far as we are advised, no such statement has been filed.

The questions raised are of such great public importance that I dissent from a denial of certiorari.

1. "Army-Interior Reservoir Land Acquisition Policy," Hearings before a House Subcommittee of the Committee on Government Operations, 85th Cong., 1st Sess. (1957), p. 422.

2. The relevant portions of this Act are set forth in an Appendix to this dissent. (Editor's note: This appendix, containing the text of § 102 of the National Environmental Policy Act, 1 ELR 41009, has been omitted.)