United States v. 247.37 Acres of Land

Civil Ac. No. 7769 (S.D. Ohio January 24, 1972)

Motion to reinstate judgment of possession in a proceeding to condemn land for an Army Corps of Engineers dam project is denied. In an earlier decision, United States v. 247.37 Acres of Land, 1 ELR 20513 (S.D. Ohio Sept. 9, 1971), the judgment was vacated because the corps had not complied with NEPA. Although an environmental impact statement has since been filed, the record does not demonstrate that the NEPA review process has been completed.

Counsel for United States
James E. Rattan Asst. U.S. Attorney
Federal Building
Cincinnati, Ohio 45215

Counsel for Defendant
Charles G. Heyd
Peck, Shaffer & Williams
1604 First National Bank Building
Cincinnati, Ohio 45202

[2 ELR 20154]

Hogan, J.:

ORDER DENYING MOTION TO REINSTATE ORDER OF POSSESSION AT THIS TIME

The United States has filed a motion to reinstate a writ of possession. Essentially it is based on two grounds —

The first is this: In the record as it appeared when the writ was withdrawn, nothing "undo-able" had been done. The United States now urges that in fact, at the relevant time, it had purchased, to carry out this 30-year-old project, 75% of the tracts needed and 80% of the acreage needed; or stated otherwise, some 311 tracts out of 369 tracts. That is not "undo-able" if environmental considerations would require it. A buyer can sell and, if this Court's record pertaining to Clermont County real estate valuations be any guide, the undoing would not be at any loss. In addition — under that heading — the United States urges that it has let contracts, or more accurately one contract, for one of the two major construction increments. The contract involved approximately $4,000,000.00, was let on May 4, 1970, and, by the time the writ of possession was withdrawn, approximately half of that amount had been expended; or stated otherwise, the contract was half performed. That appears to be a good ground if one forgets chronology — and we will come back to it.

The second ground is intriguing. On this record, the United States has taken the position that it need not comply with the Environmental Protection Act and/or, if it should comply, it has substantially done so. For the first time there is introduced into this record a fact which occurred after the "substantial compliance" argument was advanced by the United States and that fact is urged as substantial compliance. In any event, the new fact introduced is this: That on May 9, 1971, an impact statement was filed. This is no substantial question of fact about that. It is attached to the moving papers and it unquestionably constitutes an impact statement under the applicable section — 4332.

The chronology relative to the import of the contract letting is as follows: In late 1969, the defendant was a party to a case filed in this Court, which sought to enjoin this project on, among other grounds, the failure of the moving agency of the United States to comply with the EPA. That action remained pending until well after the effective date of that Act. During that time the [2 ELR 20155] Government's position in that action with respect to that claim of the property owner, among other positions, was that the question in any event could be appropriately raised in a condemnation case if one were ever filed, and that being the case, furnished no ground for the injunction prayed for by the property owner, the defendant in this case. The injunction case was decided in May, 1970, and specifically on May 15, 1970, and one of the grounds for the denial of the injunction was that ground urged by the Government and described above. The significant part of this chronology is this: On May 4, 1970, while the Government was taking that position in Court, it let the $4,000,000.00 contract. How one can claim that a raised question should be later considered in a condemnation and the claim that any unilateral action by it in the meantime should appeal to the Court when the condemnation is filed is, frankly, a mystery to this Court. The question was fairly raised, was fairly reserved to this condemnation case, was fairly within the knowledge of the relevant Government agency and its counsel and this Court, frankly, is not very much interested in the unilateral actions interim the appropriate raising — at least where there is no argument by anybody on when that appropriate time is. This case was not filed until December of 1970.

The second basis for the motion is much more appealing. Essentially it is based on the language "to the fullest extent possible" in 4332. It now appears that a year after the construction contract was let, an impact statement was filed. It did fairly set forth just what the Corps had done to put itself into a position to file such a statement and what, based thereon, constituted the "environmental impact," the "unavoidable ones," the "long-term, short-term relationship," and the "irreversible commitments." One cannot say on this record it was filed unseasonably, since it was separated from the effective date of the act only by sixteen months and from the effective date of the initial regulations by far less than that. What this record does not show is what happened thereafter. There is no indication at all whether or not it was commented on by the Environmental Council, whether the public was in any way informed "as provided by Title 5-552," etc.

Either one of two things is perfectly consistent with this record in its present status —

1. That the "agency review processes" led to all kinds of environmental advice to the Corps of Engineers, which was thrown in the wastebasket; or

2. That nothing has happened and there is nothing the Corps can do about it to hurry up some reaction to the impact statement.

If the latter be the case, it would be a strong appeal, if not a completely influencing one, to the reinstatement of the writ of possession. However, courts are governed by records and not by speculation. It may well be that the plaintiff United States has complied with Environmental Protection Act "to the fullest extent possible" under the existing status of this project, etc., etc. Perhaps on a renewal of the motion by the United States the relevant facts once again will appear. At least in its present stage, the motion simmers down to an argument that the EPA does not apply to a project in connection with which land has been previously dealt with and it will not be repeated.

The motion is denied at this time.