United States v. 247.37 Acres of Land

Civil Action No. 7769 (S.D. Ohio September 9, 1971)

Judgment of possession for the United States in a condemnation proceeding initiated to acquire land for a Corps of Engineers flood control dam project authorized in 1938 vacated and the government's motion to strike defenses denied because the failure of the Corps of Engineers to comply with theprocedural requirements of the National Environmental Policy Act of 1969 (NEPA) vitiates the legality of the administrative action by which the judgment of possession was obtained and entitles landowner to a trial on the merits of the Corps' compliance with NEPA. The Ninth Amendment has not yet been interpreted by the Supreme Court so as to provide landowners a right to the preservation of their property in its natural state against the government's power to acquire property for governmental purposes.

Counsel for the United States:
James E. Rattan Asst. U.S. Attorney
Federal Building
Cincinnati, Ohio 43215
(614) 469-5715

Counsel for Defendant:
Charles G. Heyd
Peck, Shaffer & Williams
1604 First National Bank Building
Cincinnati, Ohio 45202
(513) 621-3394

[1 ELR 20513]

Hogan, J.:

MEMORANDUM AND ORDER ON PENDING MOTIONS

Pending in this eminent domain case are:

A motion by the plaintiff United States to strike insufficient defenses and, in the alternative, for summary judgment;

A motion by certain of the defendant land owners, to-wit, Paul and Helene McCarthy (Tract No. 343) and Jess and Eleanor Bales (Tract No. 1106) to vacate judgment on declaration of taking or, in the alternative, for an order fixing time, etc.

There have been tow disastrous floods in the general Ohio River area, one in 1917 and one in 1937. Each of them drew the immediate attention of the Congress. By April, 1937, scarcely two months after "Black Sunday," the President transmitted to the House Committee on Flood Control a Report of the Chief of the Corps of Engineers setting forth a comprehensive flood control plan for the Ohio and Lower Mississippi Rivers. That report recommended not only the completion of a number of projects previously authorized, but also the authorization and construction of a number of new flood control works. The problem overally had to do with reservoir and other control, not only of the Ohio and Lower Mississippi, but many of their tributaries, if "tributaries" be in some cases the proper word. Forty-five new flood control reservoirs were recommended in respect of the tributaries of the Ohio; twenty-four in respect of the tributaries of the Mississippi; in addition, there was contemplated and recommended the purchase of lands in floodways, improvements to levess and access roads, etc., etc. In terms of money, at the then practically depression estimates, about a billion dollars was involved. Two reservoirs were recommended in connection with the Little Miami River — it is a relatively little river which has its source in Central Ohio and its mouth at Mile 463 Ohio River. A few miles from its mouth, the Little Miami is joined by what is called the East Fork thereof — one of the proposed reservoirs was to be on the East Fork and "reservoir" its waters; the other was to be on the Little Miami or a tributary and somehow it has gotten the name of Caesar's Creek.

It is important, in the context of this case, to bear in mind that the East Fork Reservoir is but a small cog in an overall big plan. It is interesting to note that the completion of the gigantic new project, as well as the previously authorized ones (had they been in existence in 1937) would have resulted in keeping the Ohio at Cincinnati at 76 feet, rather than an 80-foot crest — flood stage being 52 feet. Levess and walls were also, therefore, required for the protection of a number of people and things and even the initial report — composed in the days of the trickle down theory — mentioned the use of "parks," not so much in a context of recreation, but in a context of flood control. (See page 5 of Committee Document No. 1, e.g., "* * * provided that suitable provisions are made to insure that evacuated areas are retained in perpetuity for park, recreation or other purposes not antagonistic to their use for the passage of floodwaters.")

The initial report also contemplated the acquisition of land in addition to the lands necessary for the per se construction of the dams and reservoirs. For instance, on page 12, the Chief of Engineers recommended, among other things:

[1 ELR 20514]

"In the discretion of the Secretary of War the turning over of lands purchased in the floodways to the Department of Agriculture or other public agency under such restrictions as may be necessary to insure their proper use for floodway purposes."

Congress, in an Act of June 28, 1938, "Authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes" (italics ours) approved "The general comprehensive plan for flood control and other purposes (italics ours) in the Ohio River Basin, as set forth in Flood Control Committee Document Numbered 1, Seventy-fifth Congress, with such modifications thereof as in the discretion of the Secretary of War and the Chief of Engineers may be advisable * * *." (52 Stat., 75th Congress, 3rd Session, 1938, page 1215 and following.)

Through the years, Congress has appropriated funds from time to time. Some giant steps have been made. Insofar as this record shows, it is only of relatively recent years — say the last ten — that any funds have been appropriated for use (or used after general appropriation) to acquire land related to the East Fork Reservoir in Clermont County, Ohio. Insofar as this record shows, no contract of any kind dealing specifically with construction has been let. (It may be, but this record does not so indicate.) Nor has there been a spade turned in any actual construction. (Again, that may be wrong in fact, but that is the status of this sketchy record.)

In 1944, Congress expressed it to be Government policy to build recreational areas in conjunction with Federal reservoir projects. See the Act of December 22, 1944, Chapter 4, 55 Stat. 889. That is simply a recognition of a fact — since the Romans conceived of the reservoir, recreation has been a concomitant.

While there have been some land acquisitions by the United States for the East Fork project on a negotiated basis, the involuntary type — of which this action is one — awaited 1969. When the moving defendants in 1969 were advised that the negotiation failure would lead to a condemnation case, an action was filed by them (or certain of them) in this Court's Civil No. 7357, against the United States, to enjoin the filing of condemnation cases. That action was dismissed by this Court fundamentally for the reason that the land owners had an adequate remedy at law if, as, and when condemnation cases were actually filed.

To continue as chronologically as may be with the salient facts:

Insofar as this record shows, the 1938 Act of Congress has been funded as recently as December, 1969, in Public Law 91-144, effective December 11, 1969. (83 Stat. 323, et seq., and specifically at pages 325, et seq.)

This Act preceded by approximately three weeks the effective date of the National Environmental Policy Act — NEPA. (42 U.S.C. § 4321, et seq.) No attempt will be made to summarize that Act and its companions.¹ Briefly the Act declared Congressional policy, provided directly or indirectly for agencies to implement the policy making and the rules, and another independent agency to do something about the rules as so formulated and implemented. An Environmental Protection Agency was set up as an independent, separate new agency, "an exception" to the President's declared principles and so recognized in the regulation. A "Council on Environmental Quality" was provided for. (42 U.S.C. § 4341) The broad purposes as declared by Congress are:

"To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."

Quite important to certain questions in this case are three portions of the Congressional declaration of national environmental policy (42 U.S.C. § 4331). In subsection (b) Congress said:

"* * * it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs * * *." (Italics ours.)

The other two portions have to do with purposes. (b)(4) states as a purpose the preservation of "important historic, * * * and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice. * * *" (Italics ours.) Evidently Congress, being fearful that someone might not get the mesage of individuality, summed it up in subsection (c) in this way: "The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment."

In 42 U.S.C. § 4332, Congress directed that —

"* * * to the fullest extent possible the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and all agencies of the Federal Government shall —

"(A) utilize a systematic, interdisciplinary approach which will 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; * * *"

In a nutshell, any Federal agency which proposes to do anything which "may" have an impact on man's environment [and no one will question that flood control is intended to have an impact on man's environment; or stated otherwise, if one would be inclined to doubt it, let him read the Report of the Engineers in 1937 of the horrendous environmental conditions which werethe object of attack] is required to state just what it proposes to do, what the impacts are felt to be to the environmental agency and invoke its expertise before anything is done. Briefly, there is nothing in the Environmental Act which concedes any environmental expertise in the area to any other governmental agency except the Environmental Agency. The whole purpose of it is to see to it that the various agencies, before acting, at least obtain the counsel of the expert in the field.

There is no question in this record in its present state that the moving Federal agency, the Corps of Engineers, has never complied in any respect with the Environmental Policy Act. It is conceded it has not. The claim is made that it has "in effect." If the Act be applicable, that claim is appropriately made in a merit hearing and not on a summary proceeding.

No one seems to have specifically asked, at the time the Environmental Policy Act was passed, for a Congressional declaration of whether it applied solely prospectively, or whether it was retrospective in any respect. The words themselves would cause some difficulty, since the prospects might pend on different rungs: for instance, one rung might be "authorized"; another rung might be "funded"; another rung might be "contracted for"; another rung might be "actually in construction." Fortunately, insofar as this record indicates, this Court has only the "authorized" rung and there is just something wrong with this statement: "The Environmental Policy Act of 1970 does not apply to a Congressional project authorized in 1938." In 1938 "environment" was merely a fancy word — today it is a daily problem. However, as we have pointed out, Congress, itself, clearly made it the responsibility of every Federal agency to improve Federal plans and programs by complying with the Act. If the East Fork Reservoir is anything more than a program, this record does not show it.

Finally, on that point, we learn from the unreported decision in Environmental Fund v. Corps of Engineers, Eastern District of Arkansas, Western Division, 70 C.203, two things:

A) In August, 1970, the Deputy Secretary of Defense directed to the Secretary of the Army interim guidelines on environmental statements. In it, in dealing with "projects or programs initiated before January, 1970, * * * * An environmental statement shall be filed on actions significantly adversely affecting the quality of the environment even though the actions arise from projects or programs initiated prior to January 1, 1970. Where at all practicable to reassess the basic course of action, etc. * * *"

B) The Senate Committee on Appropriations, 91st Congress, 2nd session, in Senate Report No. 91 — 118, recommending several appropriations for the fiscal year just ending, said this:

"The Committee has received objections based on environmental grounds to many programs and projects for which funds are included in this bill. The objections are principally based on the failure of the agencies involved to file the five-point statement required by NEPA. * * * The fact that the Committee has recommended funds in this bill [1 ELR 20515] does not exempt the construction agencies from complying with the provisions of that Act as currently applicable."

In December, 1970, the Secretary of the Army commenced this action by filing herein the Declaration of Taking contemplated in 40 U.S.C. § 258a. The taking is pursuant to the 1938 Act of Congress constituting the authorization, and the December 11, 1969, Act appropriating funds. The Declaration defines the public use in this fashion:

"The said land is necessary adequately to provide for a flood control project, i.e., East Fork Lake, and for other uses incident thereto. The said land has been selected by me for acquisition by the United States for use in connection with the establishment of the East Fork Lake and for such other uses as may be authorized by Congress or by Executive Order."

Notice of the filing of the action was promptly given to all to the defendants. About a month later, on January 19, 1971, no defendant having in the interim specifically addressed himself to the matter, a judgment on declaration of taking was entered ex parte, which granted to the United States the right to the immediate use and possession of the land. In the interim, the four defendants specifically named above had, on January 14, 1971, filed answers containing seven defenses. On January 20, the United States filed a motion to strike all seven defenses of each answering defendant, or for summary judgment in respect of the questions raised by these answers. On March 12, the defendants each filed a motion to vacate the judgment on declaration of taking, or in the alternative, in effect, an order vacating the writ of possession.

We deal first with the Government's motion and will take the defenses seriatim; and secondly, with the defendants' motions.

The first defense denies that the taking of the defendant's property is necessary to provide for the flood control use. Flood control is conceded as a public purpose. The denial goes to the specific; or stated otherwise, raises the question of "excess" condemnation, not in a State sense such as in Vester, but in a Federal sense. There is no merit to this defense.

At the risk of some oversimplification: The first question is whether the overall purpose of the project is justiciable. Once that question is decided pro public use, "the amount and character of the land to be taken and the need for a given tract to complete the integrated plan rests in the discretion of the legislative branch via the appropriate governmental agency."

For a recent case, well considered and exactly on the point, see United States v. Land, 432 F.2d 1286 (5th Cir. 1970), at 1290 —

"The only exception to this rule would occur if the delegatec official so overstepped his authority that no reasonable mar could conclude that the land sought to be condemned had some association with the authorized project. In such a case alone could the taking be considered arbitrary or capricious as those terms are used in condemnation proceedings. There must be basic to the project pervasive deception, unreasoned decision, or will-of-the-wisp determination before these words of pejoration are brought into play.

"* * * the questioned land was in close proximity to the reservoir and the dam, * * *"

And so here; as a matter of fact, the land is in the same township, and, in addition, actually within the portions indicated as the location by the Engineers in 1938. See also Berman v. Parker, 348 U.S. 26, United States v. Real Estate, 217 F.2d 920 (6th Cir. 1954); United States v. Agee, 322 F.2d 139 (6th Cir. 1963) —

"* * * the scope of judicial review of administrative determinations in eminent domain proceedings is extremely narrow. * * *

"* * * 'The United States is not barred from the exercise of good business judgment in its construction work.'"²

The second defense asserts a violation of the defendants' Ninth Amendment Constitutional guarantee. The right claimed to be guaranteed by the Ninth Amendment is the right "to the preservation of their property and its surrounding environs in their natural state." This is the so-called penumbral attribution to the Ninth Amendment. Of course, that Amendment on its face merely provides that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.

Whether correct or not, this Court recently has had occasion to hold, in Perfect v. Rumpke, Civil No. 7671, for reasons therein stated, that any extension of the Griswold theory should be the exclusive province of the Supreme Court. We observe in passing that all courts, including that one, have been having enough trouble with the explicit in the Constitution. "Penumbral," of course, means a surrounding or adjoining region in which something exists in a lesser degree. It is a Latin derivation and has been adopted into the English language not only per se but componentwise. One can make of this what one wishes, but the separate component meanings are these: "pene" in English means "almost," and "umbra" in English means "a phantom."

The fourth defense (passing the third for the moment) alleges that the taking of the defendants' property is premature and that there will be an excessive delay between the condemnation time and any commitment to a public use; that the Army has been acquiring property for East Fork since 1960 and still nothing has happened; that the present appropriation of funds is inadequate to bring the entire project to completion; that there is no reason to believe that it ever will be completed; that the Army may not condemn; that there is no reasonable certitude that their property will be committed to a public use. Absolutely no authority is cited by the defendants on brief for those propositions and we find none. The questions raised there are questions for Congress and the Army and not this Court. As a matter or fact, the project originally authorized in 1938 has progressed, and progressed substantially. Congress appropriates to it generally, not in the specifics of this reservoir or that reservoir. In the language of Chief Judge Phillips, in the above referred-to Sixth Circuit case, the Army is entitled to use "good business judgment" — acquisitions are dependent upon financing and Congress controls that, leaving the business judgment to the Corps.

The fifth defense alleges that the Army has acted in bad faith by ascribing flood control motives to the East Fork Reservoir Project, while knowing that the true object of the project is to provide recreational facilities; that no valid flood control purpose will be served by the East Fork Project. This is a three-pronged statement and, were it not for the sixth defense, the "bad faith" prong might be somewhat difficult to handle. The claim that no valid flood control purpose will be served by the project is almost frivolous and no recitation of cases is necessary. Evidently the claim is that the taking of the defendants' land is more related to recreation than flood control. That may be, but so what. Recreation itself is related to flood control, as we have seen. If anything further along that line is necessary, 33 U.S.C. § 701b, one of the main flood control statutes, prdvides:

"Federal investigations and improvements of rivers and other waterways for flood control and allied purposes (italics ours) shall be under the jurisdiction of and shall be prosecuted by the Department of the Army * * *"

Recreation is twice mentioned in the Report fully approved by Congress in 1938.The authorization itself, as we have seen, speaks of "other purposes." Finally, if there be the slightest doubt of the relationship between recreation and flood control, a reading of Berman v. Parker, 348 U.S. 26 (1954), and United States v. Reynolds, 397 U.S. 14 (1970) will put those doubts to rest.

The sixth defense alleges, in addition to something previously dealt with, that the selection by the Army of the defendants' real estate "is arbitrary and capricious." As a matter of pleading, that defense raises a question of fact which is justiciable. It cannot be dealt with summarily either with a motion to strike or a motion for summary judgment. The Sicth Circuit, in United States v. Agee, supra, said:

"We hold that the district court was correct in reviewing the decision of the condemning authority to the extent of determining whether the decision was made in bad faith. * * *"

See, further, United States v. Carmack, 329 U.S. 230, at page 243 (1946).

Finally on this point, it has been specifically passed on but once — United States v. Land, 24 F.R.D. 368 (Cal. N.D. 1959) in which the Court said:

"* * * It would appear from the reservation by the Supreme Court in Carmack, supra, and from the statement of the rule in Simmonds, supra, that in the Ninth Circuit such a defense (i.e., an allegation in an answer charged that these powers have been exercised arbitrarily and in bad faith) may be raised by answer, and is one which must be tried to the court without a jury under the provisions of * * *"

[1 ELR 20516]

The seventh defense merely alleges that the estimated compensation paid in by the United States is not a fair price and is therefore unreasonable, unjust, and confiscatory. This Court fails to understand what the fight is all about in this defense. It invariably appears in eminent domain cases and is merely a land owner's method of saying, "I want more than was deposited." The Government proposes with respect to this dispute [referring to some language completely out of this context in United States v. Dow, 357 U.S. 17] that the United States may take anybody's property without any proceeding in court and leave the property owner to a suit against the United States in the Court of Claims under the Tucker Act. That is a startlingly wrong assertion. It might be correct as applied to an "in extremis" war power situation. The statement relied on was made merely to cover a situation in which property was accidentally taken. The "may" in the taking act, 40 U.S. § 258a, means "will" in any situation short of those two. A contrary construction would be consonent with the Soviet.

If, by this seventh defense, the defendants intend to raise a question of whether the sufficiency of the deposit is a justiciable question to be considered in connection with the issuance or vacation of the writ of possession envisaged by 40 U.S.C. § 258a, this Court would agree — not with the language, but with the conclusion arrived at in United States v. Cobb, 328 F.2d 115 (9th Cir. 1964). The Government motions as to this defense will be denied on the basis that the defense is construed as merely placing in merit issue the question of fair market value.

To recapitulate, therefore, the Government motions as to the various defenses are disposed of as follows:

As to the first defense - the motions are sustained;

second defense - sustained

fourth defense - sustained

fifth defense - sustained

sixth defense - overruled

seventh defense - overruled.

To return to the third defense — this defense alleges a complete noncompliance with a number of the laws of Congress. More importantly, it is alleged that the Army has not complied with the Environmental Policy Act. Subsidiary allegations include a miscalculation of cost benefit. (On this see United States v. Welch, 327 U.S. 551 (1945).) As to this subsidiary defense, the Government's motions are sustained. Excess condemnation is stated and as to this, the Government's motions should be sustained for reasons already given.

Further subsidiary claims are: That the United States agency involved has failed to comply with the policy provisions of the Federal Water Pollution Act (33 U.S.C. § 466h); the Federal Wild Life Act [Sic] (33 U.S.C. § 540 and 16 U.S.C. § 661); the Federal Forestry Act (16 U.S.C. § 580n) and the Federal Historical and Archeological Act (16 U.S.C. § 469a). As to these subsidiary claims, three things: First, in connection with the Environmental Protection Act, a number of functions of the Interior and Agriculture Departments, including, for example, functions related to the Water Control Act, have been transferred to the Environmental Protection Agency; second, these acts have been on the books a long time and no court has ever held that they are anything but expressions directly to Federal agencies. In other words, no court has ever held that there is any private right assertable thereunder. It may be that the recent Data Processing and Barlow cases (397 U.S.) soften the defendants' standing problem. There is, however, no need to get into that. If the taking agency complies with the provisions of the Environmental Protection Act, the taking agency will automatically take into consideration — or at least should — all of the factors required by these specific acts which from time to time have dealt peacemeal with pieces of environment. The Government motions, therefore, as to these subsidiary defenses are sustained.

Two claims of the Government should be dealt with before passing on the environmental question.

First, the Government claims, in effect, that the Corps of Engineers is a czaristic agency — completely exempt from every statute of the United States. It bases that claim on some language in 33 U.S.C. § 701c-1. This statute was a part of the Act of June, 1938, heretofore referred to. This is the language:

"* * * Notwithstanding any restrictions, limitations, or requirement of prior consent provided by any other Act, The Secretary of the Army is authorized and directed to acquire * * * title to all lands, * * * necessary for any * * * reservoir project for flood control, * * *"

That claim is rejected for a number of reasons, the most specific being this: Prior to the Act of 1938, land acquisitions by the United States for this type of project were subject to all kinds of limitations and restrictions involving states and local governments — somewhat comparable to the situation existing even today in respect of building a throughway through a village. The President, in 1937, recognized that this situation could seriously hold up the first project then being proposed after the disastrous flood. The committee document above referred to makes it evident that the purpose of this language was to unfetter this project. The language was not meant to say that the Corps of Engineers is exempt from evey act of Congress.

Second, the Government claims that this is merely a land acquisition case and the defendant may not pose any defense based on what the land is going to be used for until construction actually starts. No authority whatever is cited for that proposition. The taking act requires in the declaration of taking a statement of "the public use for which said lands are taken." In other words, under the taking statute itself, one cannot separate, as the Government would, the taking from the use. Furthermore, if the Government's construction were adopted, a land owner could not attempt to bridle a horse until he was out of the barn.

The $64 question in this case in its present status — whether the Environmental Protection Act applies to anything other than a program originally conceived after January 1, 1970, by some Federal agency — is an interesting one and it is surely a debatable one. Some portions of the Environmental Act, viewed alone, would indicate that the answer is that it applies only to something which was not in the proposal stage; e.g., 42 U.S.C. 4332c requires the inclusion in every recommendation or report on proposals for legislation and other major Federal actions, a detailed statement. In other words, the impact statement requirement — which really is the meat of the implementation — is related to a recommendation or a report on proposals. On the other hand, an impact statement is also related to "other major Federal actions significantly affecting the quality of the human environment, etc." In § 4332, Congress directed all agencies of the Federal Government to utilize "a systematic, interdisciplinary approach" to the fullest extent possible; and, as we have pointed out, the Act declares a policy that any agency of the Federal Government will use all practical means to improve Federal plans and programs.

A number of district courts have had the question whether the Environmental Protection Act is retroactive in any respect, i.e., whether it applies to any Federal project authorized or funded, or contracted for, or under construction — the rungs being different. The rung in this case is not crystal clear by any means. It depends on what one's view is on this question: What is the project? If the project is the East Fork Dam, insofar as this record shows, no money has been appropriated for construction, nor has there been any construction. If the project was that authorized overally by the Act of 1938, dealing with the Mississippi and the Ohio and their tributaries, the remaining East Fork Dam, looked at by itself, is but a little fish in a big pond. On the other hand, the language in the Environmental Protection Act is "may" affect the environment — and certainly the East Frok Dam per se will affect the environment in a great many ways in an appreciable territory. The Government does not in any respect contest this: If East Fork were originally proposed today, by itself, the Corps would have to comply with the Environmental Act ab initio.

Three district courts, having the question in different contexts, have held that the Act is in no respect retroactive or retrospective. The reasons for the holdings are well stated in those cases and are incorporated as the reasons for one conclusion. See Pennsylvania v. Bartlett, 315 F. Supp. 238 (M.D.Pa. 1970); Investment Syndicates v. Richmond, 318 F. Supp. 1038 (Ore. 1970); Brooks v. Volpe, 319 F. Supp. 90 (W.D.Wash. 1970)

One other district court agreed with those three as its own conclusion, but recognized that the problem was such a close one that a stay or injunction should be granted pending an appeal from its decision on the ground that "this court feels that the plaintiffs have a reasonable chance of success in appealing this case." Texas Committee v. United States, unreported, Western District of Texas, Austin Division, 1970, 69-119.

Two other district courts have concluded that the Act applies to any project which may affect the environment — and one of them concluded that this was so even as applied to a project the construction of which had substantially progressed. Again, the reasons for their conclusions are well stated in their opinions and are incorporated herein. See Environmental Defense Fund v. Corps of Engineers, Eastern District of Arkansas, Western Division, 1971, unreported, 70-C-203; and Environmental Defense Fund v. U.S. Army, Corps of Engineers, U.S.D.C. D.C., unreported, 1971. In the latter case the Court also held flatly that the [1 ELR 20517] Administrative Procedure Act applied to construction actions in the environmental area of the Corps of Engineers and that action by that agency was reviewable under that Act for compliance with 5 U.S.C. § 706d, "Observance of procedure required by law." See also in this field the recent decision of the Fifth Circuit, Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, as yet unreported, August 5, 1971, and particularly the dissent.³

It seems to this Court that at a minimum the Environmental Act constitutes a dictation by Congress to every Federal agency engaging, after January 1, 1970, in any field of activity which, in the language of the Act, "may affect the environment" — to repeat, it seems that the Act constitutes a direction to proceed thereafter only with consideration given to the various policies and requirements of that Act. This Court is not at this time presented with the problem of what the extent of compliance should be as applied to this particular project. The answer charges flatly that there has been absolutely no compliance and that is a question of fact and, as against the Government's motion, the charge in the answer must be accepted. Actually, the Government does not deny the charge. It claims on brief that there was substantial complaince. Again, that is a question of fact which cannot be determined preliminarily. The Act, in the judgment of this Court, requires any Federal agency dealing in the field, and before it takes a "major Federal action" (4332), to prepare an impact statement, publish it as required by Title 5, Section 552, and give the President and the various environmental agencies, as well as the Congress, a chance to shoot at it.

The general location of this reservoir was determined in or prior to 1937. Environmental considerations a la 1937 and a la 1970 are not too far removed in relationship from the relationship between the Model T and the Lincoln Continental of today. What the "alternatives to the proposed action" were in 1937 would not have a great deal to do with what the "alternatives to the proposed action" are in 1970.⁴ The environmental impact of this reservoir a la 1937 and a la 1970 certainly are quite different — for one thing, the County in which the project is located is at least three times more populated as a matter of public record. In short, it is this Court's conclusion that Congress, by the Environmental Act, required, to take an example, any Governmental agency dealing in the field in 1970, and before taking any major action, to at least consider and public "the alternatives a la 1970 to the proposed action," and the pros and cons based on the scientific information furnished that agency by other environmental Government agencies — i.e., after a "systematic interdisciplinary approach." To hold otherwise would be to conclude that Congress has exempted one Government agency from any environmental control simply because it thought of something 33 years ago. That is not rational, especially when that agency has no reason for expertise in the environmental field. Engineers are doers and not aesthetics [Sic].

This Court has no hesitancy in concluding that the judicial power certainly does not extend to the determination of the Corps made after compliance with the Act. The decision may be the same, but it will be an informed decision — that is what the Act requires. Or stated otherwise, it is the sole function of the judiciary in this field to require procedural compliance — not to get into the pros and cons of the decision after it has been arrived at procedurally correctly. Overton Park v. Volpe, 401 U.S. 402 (1971). The Volpe decision is also not unrelated to the retroactive problem in this case. Conclusorily on this aspect, the Government motions in respect of the third defense, paragraph A, are denied.

There remain for disposition the motions of the defendant-land owners to vacate the Declaration of Taking or in the alternative for an order fixing the time within which and the terms upon which the United States shall acquire possession. Insofar as the motions are directed to the Declaration of Taking, they are denied. This Court finds no basis upon which such motions should be granted, nor are we cited any.

On the possessory aspect — it is the claim of the United States, based on United States v. Cobb, supra, that there is nothing a district court may do upon the filing of an eminent domain action by the United States except pro forma and ex parte, and finally sign a writ of possession. That case is certainly authority for the conclusionof the Government in respect of the declaration of taking. It is authority as applied to its facts in respect of the writ. The facts in this case are not at all similar. The statute itself (i.e., the taking act, 40 U.S.C. 258a) provides that, upon the filing of a declaration, "the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner." In the view of this Court, the statute in and of itself, and independent of the Administrative Procedure Act, means that if the proceeding in its present status violates some Act of Congress, a court may withhold a possessory writ until such time as the defect is rectified. The subsequently enacted Administrative Procedure Act merely solidifies that opinion or leads to the same conclusion on a separate basis.

The military, i.e., the Corps of Engineers (the taking agency in this case) is not exempt from the Administrative Procedure Act. Section 701 of that Act excepts from the judicial review provisions "military authority exercised in the field in time of war or in occupied territory." We doubt if the peaceful environs of the East Fork come within the definition of "the field" and skirt the other question.

That Act further provides, in Section 702, that "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Under Data Processing and its sister, supra, a citizen about to be dispossessed of his "castle" is certainly aggrieved, to say the least.

Section 703 defines this as a proper proceeding for review — there is certainly no other. There is no problem of governmental immunity, or no problem under Section 704. The question is not whether the sovereign is immune from environmental considerations. The sovereign itself, through Congress in the Act, has waived that immunity and the only problem is the application of the waiver.

Section 705 contemplates just exactly the type of relief the defendants seek.

Section 706 mandates a reviewing court into holding unlawful and setting aside agency actions found to be "without observance of procedure required by law." For either or both procedural reasons, the motions of the defendants, insofar as they are directed toward the writ of possession previously issued by this Court ex parte, are granted and the writ is vacated.

The Government's position is that granting of such a writ is tantamount to an injunction. It is not. This Court is not enjoining anybody from proceeding with anything. The narrow question before this Court is simply that: At this stage of this case and in its sketchy record, does it appear that the agency involved has failed to follow procedures required by law? If the defense has made a showing of that, the defense is entitled to a maintenance of the status quo until the question can be fully dealt with on the merits. The question in an injunction is somewhat different and that would be: Has the defense clearly shown, with probability of success, that the United States is wrong? This Court does not have that question at all and ventures no expression on it.

Finally, several things should be emphasized. First, at any time, upon a showing by the Government that the Environmental Act has been complied with, the writ will issue, so that to borrow a phrase from the Government — the effect of the order withdrawing the writ is not to stop or hinder the East Fork Project. For all this Court knows, the environmental agencies may bless it; or, for all this Court knows, the Corps of Engineers, having invited the expertise of those agencies, may want to change it. But in the face of what this Court regards as the clear mandate of Congress, and the factual importance of environmental considerations in today's climate, the countenance of a possessory writ in this case would be judicial countenance of defiance of a Congressional mandate.

1. An excellent summary is contained in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, __ F.2d __ (D.C. 1971) (Slip 7126)

2. Of similar tenor is R.R. v. TVA, __ F.2d __ (6th Cir. 1971) 40 LW 2058.

3. Also see Calvert Cliffs Coordinating Committee v. A.E.C., supra, concluding that "under construction" is no excuse for non-compliance.

4. See, for instance, Newsweek, Aug. 30, 1971, pg. 54, indicating the answer to air pollution by gasoline has been solved in one locale by the economy (as well as environmental) serving substitution of a by product-propane.