Smith v. Soil Conservation Service

No. 82-1270 (10th Cir. May 13, 1983)

The Tenth Circuit declines to order a preliminary injunction against operation of a dam for which no environmental impact statement under the National Environmental Policy Act (NEPA) had been filed, holding that appellants had failed to prove the dam probably would significantly affect the quality of the human environment. The court first holds that the case is not moot because the reservoir behind the dam, although constructed, has not been filled and because appellants' challenge applies to other dams under construction in the same project. The court notes that to earn a preliminary injunction, appellants must show a likelihood of proving that appellees unreasonably concluded that the dam would not significantly affect the environment. The court considers the standards set out in the Council on Environmental Quality's NEPA regulations and environmental assessments of the project prepared by appellees. The court finds that the dam would cause the loss of 17 acres of wildlife habitat, 50 acres of prime farmland, and 352 acres of producing farmland, and would open 659 acres to infrequent flooding. The dam would displace no people and would have many favorable effects. The court holds that appellants have failed to establish a likelihood that appellees' determination of no significant effect was unreasonable.

Counsel for Appellants
Glen Smith
c/o Alma Mae Smith
511 Timber Lane, Edmond OK 73034
(405) 341-4304

Counsel for Appellees
Edward J. Shawaker, Claire L. McGuire; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-5993

William B. Price, U.S. Attorney; James F. Robinson
Rm. 4434, U.S. Cthse. & Fed. Bldg., Oklahoma City OK 73102
(918) 687-2543

Joined by Seth and Barrett, JJ.

[13 ELR 20886]

Logan, J.:

Plaintiffs Alma Mae Smith and Oklahoma Wildlife Federation brought suit against the Soil Conservation Service of the United States Department of Agriculture and officials of that department, alleging that the department failed to comply with the requirements of the National Environmental Policy Act (NEPA) set forth in 42 U.S.C. § 4332. The plaintiffs sought to enjoin the construction of a watershed control structure in Harmon County, Oklahoma until the defendants filed an Environmental Impact Statement (EIS) and complied with other requirements of the Act. The district court denied the plaintiffs' request for a preliminary injunction, and the plaintiffs appeal from that denial. By agreement of the parties, this action was submitted on the briefs without oral argument.

The structure that is the subject of this action is one of 35 dams in the Tri-County Turkey Creek Watershed Project in Harmon, Jackson, and Greer Counties, Oklahoma. Twenty-seven of the dams in the project were completed before NEPA became effective. R. V, 17. Before construction of the other eight structures the defendants sent an environmental assessment team to study the remaining portion of the project. That team prepared an Environmental Assessment Summary in 1978 and, after a public hearing, the department issued an Environmental Impact Appraisal declaring that a detailed EIS would not be necessary. See 40 C.F.R. § 1508.9. The basis of the decision not to prepare an EIS was that although the project constituted a major federal action, it would not significantly affect the quality of the human environment within the meaning of 42 U.S.C. § 4332(2)(C). After taking evidence the district court found that "Defendants have presented evidence to support a compelling case of nonsignificance" and that "Plaintiffs have failed to show the required likelihood of prevailing on the merits." R. I, 41.¹

A party seeking a preliminary injunction must demonstrate, among other things, a likelihood of prevailing on the merits.² The initial determination whether an EIS is required is to be made by the agency contemplating the major federal action. The agency's decision will be upheld if it is "reasonable in the light of the mandatory requirements and high standards set by the statute." Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1249 [3 ELR 20830] (10th Cir. 1973). Given the defendants' concession that the project constitutes a major federal action, the key question is whether the plaintiffs have demonstrated a reasonable likelihood that the agency's conclusion that the project would not significantly affect the human environment is unreasonable. See 42 U.S.C. § 4332(2)(C).

Guidelines for determining whether a project's effects are significant are set forth in 40 C.F.R. § 1508.27. Under those regulations both the context of the proposed action and the intensity of the impacts must be considered. The regulations require an evaluation of both the beneficial and adverse impacts of the projects. Other considerations include the effect of the project upon public health or safety, the unique characteristics of the area, the likelihood of controversy about the environmental effect, the uncertainties and unknown risks of the project's environmental impact, the precedent the decision may create, the cumulative effect of the project when considered with other projects, the adverse effects on other structures or objects of significance, the threat to the habitats of endangered species, and the possibility that the action will violate existing laws designed to protect the environment. 40 C.F.R. § 1508.27. See generally Hanly v. Kleindienst, 471 F.2d 823, 830-31 [2 ELR 20717] (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).

The defendants' evidence was composed largely of the Environmental Assessment Summary and Environmental Impact Appraisal [13 ELR 20887] issued on the eight structures remaining to be built after NEPA became law. The appraisal stated that the adverse impact consisted of the destruction of 17 acres of wildlife habitat and 50 acres of prime farmland, and the removal of 352 acres of agricultural land from production. An additional 659 acres will be subject to flooding once every 25 to 50 years.³ All the dam sites are in rural areas on tracts principally utilized for farming and livestock production; the dams would displace no people. No endangered or threatened animals or plants were known to be in the watershed.⁴ Some of the wildlife habitat loss would be mitigated by new plantings and increased water availability. Nearly all of the other effects of the project were favorable: reduced erosion and flood damage, increased water availability in an area low in water resources, reduced road and bridge damage, and less interruption of travel. At the time the environmental assessment was presented to the public no adverse comments were received. The plaintiffs' evidence in favor of requiring the EIS related almost entirely to dam site 1. The dam for this structure was to occupy four acres and the reservoir's sediment pool was to be 90 acres. An additional 175 acres would be flooded once every 25 to 50 years. The plaintiffs' expert testimony concentrated on the loss on the site of trees and other vegetation. While all of the items could be found elsewhere in the area, the plaintiffs' witnesses asserted that the site was unusual or unique in the combination, number, and maturity of the vegetation it contained.

We conclude that the evidence taken as a whole does not establish a likelihood of success on the merits. The law requires an EIS only on major actions "significantly affecting the quality of the human environment." The regulations attempt to draw a line between those cases in which a shorter, less detailed study is sufficient and those in which the more comprehensive EIS is required before officials make a decision on a government project. The considerations listed in the regulations involve the weighing and balancing of various factors. The environmental assessment was made by a team of nine people, including soil conservationists, enconomists, a biologist, and an engineer. The team had expertise in agronomy, biology, agricultural economics, agricultural engineering, forestry, and geology. R. V, 269. Our review of the record convinces us that the defendants complied with the requirements of NEPA. We cannot say that the plaintiffs have shown a likelihood that the defendants' determination was unreasonable. We hold that the trial court did not err in denying the preliminary injunction.⁵

AFFIRMED.

1. We have considered whether this appeal is moot because the dam whose construction the plaintiffs sought to prevent has been completed. The plaintiffs represent that much of the damage sought to be enjoined will occur only when there is impoundment of water behind the dam, and they state that there has not yet been sufficient runoff to impound any water in the reservoir area. Thus, at least some of the destruction of vegetation and the inundation of the farmland could be avoided were we to prevent the impoundment of water. Furthermore, although the plaintiffs concentrated on only one structure in asserting the defendants' failure to prepare an EIS, their challenge actually related to the entire project remaining to be completed. We conclude that the appeal is not moot. See Richland Park Homeowners Association v. Pierce, 671 F.2d 935, 942-43 [12 ELR 20717] (5th Cir. 1982); Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 591 n.1 [11 ELR 20537] (9th Cir. 1981).

2. Because of our disposition of this case, we need not consider whether the district court correctly resolved the issue of irreparable injury.

3. The appraisal also mentioned that nine archeological sites were found in the area of these dams, only two of which were recommended for further investigation. The defendant agreed to test these two archeological sites before awarding construction contracts on the structure potentially affecting them.

4. A member of the environment assessment team testified:

The land use changes are small, the people that are directly impacted, no one is being forced to move from their home or no one is losing their farmstead, their entire farming operation. No major highways are being intersected by flood waters or sediment pools. There are no significant historical or cultural resources that are being impacted by any of the sites. There are no endangered plants or animal species that are being affected by the sites. There are no significant major impacts of this project.

R. V, 347.

5. We also hold that under the circumstances of this case the district court did not err in refusing to grant the plaintiffs' request for a continuance of the hearing on the motion for the preliminary injunction.