Environmental Defense Fund v. Corps of Engineers (Gillham Dam)

No. LR-70-C-203 (E.D. Ark. March 22, 1972)

Congress, in placing the responsibility for preparation of environmental impact statements upon the agency proposing the action, has required that the agency make a good faith effort to comply with NEPA. Agencies may meet that good faith standard even if their employees personally are "anti-environmentalist" and have unshakable, preconceived attitudes concerning the project under consideration. All NEPA requires is good faith compliance so that the alternatives and arguments and counter-arguments may accompany the recommendation through the decision-making process. The fact that the District Engineer responsible for preparing the environmental impact statement on the Gillham Dam on the Cossatot River allegedly made a speech including such statements as "I assure you these three dams are going to be built" is no grounds for holding the environmental impact statement invalid.

Counsel for Plaintiffs
Richard S. Arnold
Arnold & Arnold
P.O. Box 1938
Texarkana, Arkansas 75501

Edward Lee Rogers
P.O. Drawer 740
Stony Brook, New York 11790

Counsel for Defendants
W.H. Dillahunty U.S. Attorney
P.O. Box 1229
Little Rock, Arkansas 72203

[2 ELR 20260]

Eisele, J.

Because it was necessary to call off the conference about the above case, scheduled for March 16, the Court feels that it should set forth its thinking with respect to some of the issues raised by the defendants' motion for summary judgment, those issues being reflected in the briefs filed by the plaintiffs on February 7, 1972, and by the defendants on March 3, 1972.

The defendants take the position that there is no genuine issue as to any material fact, and contend that they are entitled to an order setting aside and vacating the present injunction as a matter of law. The plaintiffs urge that genuine issues as to material facts remain and that, even independent of the resolution of those factual issues, they would be entitled to a continuation of the injunction upon the basis of the defendants' failure to fully comply with all of the provisions of the National Environmental Policy Act of 1969.

Under the circumstances I think it would be best to deal in this letter with certain of the plaintiffs' contentions with respect to the existence of factual issues since, if any remain, they should be disposed of before taking up those issues which admittedly deal exclusively with questions of law.

Mr. Arnold first contends that the new and final Environmental Impact Statement "is not impartial and objective". He offers to support this contention by submitting proof which he asserts will show the bias of Colonel Vernon W. Pinkey, erstwhile District Engineer of the Tulsa District, under whose direction plaintiffs contend, "the process of compiling the new Environmental Impact Statement was begun and, to a large extent, completed . . .". To show Colonel Pinkey's bias, plaintiffs intend to rely upon certain statements which they contend he made at a meeting of the Chamber of Commerce at DeQueen, Arkansas, on Monday, March 29, 1971. At the public hearing held by the defendants on August 31, 1971, at Fort Smith, Arkansas, the plaintiffs appeared and made written objections to Colonel Pinkey's alleged remarks, claiming that they constituted evidence of bias and prejudice sufficient to vitiate the defendants' attempt to comply with the Court's orders. See Exhibit 11 to the "Record of Public Meeting on Environmental Impact Statement, Gillham Lake, Arkansas", which has been filed as part of the Environmental Impact Statement (hereinafter sometimes referred to as "EIS").

Plaintiffs also contend that an examination of the final EIS offers, in itself, evidence of bias and prejudice. Additionally, plaintiffs contend that a letter from Colonel Caryle H. Charles, Assistant Director of Civil Works for Plains Divisions of the Corps of Engineers, to the Honorable Bill Alexander, dated August 27, 1971, substantiates their charge of bias. Finally, plaintiffs contend that further evidence of the defendants' bias "is shown by the fact that, immediately upon the filing of EIS with CEQ, defendants moved this Court to vacate the injunction." They contend that this was a clear violation of the CEQ guidelines and that defendants should have waited at least thirty days from January 10, 1972, before deciding to proceed with the project and before making their motion to vacate the injunction.

To establish a factual basis for certain of their contentions regarding bias, plaintiffs filed a Request for Admissions on February 7, 1972. The defendants responded on March 7, 1972. The result establishes the following facts: that Colonel Vernon W. Pinkey was District Engineer in charge of the Tulsa District, Corps of engineers, United States Army, during that portion of calendar year 1971 ending July 31, 1971; that the preparation of the EIS on Gillham Dam was under the supervision of Colonel Pinkey or of employees subordinate to him up until July 31, 1971; that most of the data for the draft statement of the EIS had been accumulated by July 31, 1971, and the rough organization of the statement had been worked out by that date; that the draft EIS was mailed to interested parties from a mailing list (complied by the Tulsa District) on August 6, 1971; and that the draft EIS was filed with the Council on Environmental Quality on August 26, 1971. The defendants deny that Colonel Pinkey made the statements on March 26, 1971, as attributed to him in the DeQueen Daily Citizen on March 29, 1971. Defendants contend that the correct import of any statement made by Colonel Pinkey at the time referred to in the newspaper article is set forth in an affidavit of Colonel Pinkey filed with this Court on March 3, 1972.

Plaintiffs state that on Friday, March 26, 1971, Colonel Pinkey appeared at a meeting of the Chamber of Commerce at DeQueen, Arkansas, and assured his listeners that the three authorized projects in the DeQueen area, the Gillham, Dierks and DeQueen dams, would definitely be constructed. They contend that he stated, among other things, "there is no doubt about them being completed" and "I assure you these three dams are going to be built". In their Request for Admissions No. 6, supra, the plaintiffs ask the defendants to admit "that on March 26, 1971, Colonel Pinkey made, in DeQueen, Arkansas, substantially the statements attributed to him in the attached newspaper articles appearing in the DeQueen Daily Citizen on March 29, 1971, pages 1, 2 and 6". The statements attributed to Colonel Pinkey on said pages of the newspaper are as follows:

"Pinkey said the case (Judge G. Thomas Eisele issued an injunction Feb. 19 in federal district court against further construction at Gillham) had been turned over to the justice department, and 'I can't tell you what the justice department is going to do.'

"No appeal has as yet been filed, but Pinkey said the deadline for filing such an appeal now is April 19.

"Speculating on the possibility that an appeal would be filed, the Tulsa man said that if such an appeal were successful, bid for final construction at Gillham could be advertised late in the fall, could be opened in January of February and the job could be contracted so that actual work could start about June, 1972.

"'But it (the injunction) has cost us a year,' Pinkey said.

"That is because construction of the coffer dams to divert the river during dam construction has to start in a dry period for the protection of the contractor.

"After the ecologists filed suit against construction of the dam, a presidential decree suspended terms of the Davis-Bacon act (minimum wage) on all federal projects on which contract had not been awarded.

"All such jobs now have to be re-advertised.

"'That,' the colonel said, 'killed it for this year,' because the Gillham job can't be re-advertised.

"He said the low bidder on the project had submitted a favorable bid some $600,000 under the second lowest bidder, and about $800,000 under the government's estimate.

"'The reservoir could be completed in 1974 if all goes [2 ELR 20261] well,' the Tulsan said.

"Speaking of the three authorized projects in this area (Gillham, Dierks and DeQueen) Pinkey said 'there is no doubt about them being completed.'

"He charged that local groups should be organized now to 'show concern with anything to do with the lakes'.

"'After they are completed is what counts,' he said.

"One suggestion was that zoning regulations should be considered even now, before developers have a chance to erect buildings or establish types of business that would detract from the recreational value of the reservoirs.

"Pollution, water safety, law and order were other items of concern which should be handled by local organizations, he said.

"'They're going to be here, and they belong to you,' he pointed out.

* * *

"After reviewing the status of Dierks and DeQueen reservoirs, the colonel prefaced his review of the Gillham project with:

"'We're planting some trees up there now.'

"The colonel early caught his audience by surprise by asking, as teacher to second-grade class, how much had been asked in appropriations for the three reservoirs. When no one apparently wanted to answer the question, he said:

"'If you don't know how much is in the budget, you're not concerned with the three lakes.'

"It was then he suggested the organization of an areawide group.

"On another matter, the colonel urged his listeners:

"'Don't start a fight with the conservationists. It won't pay off. Forget it.'

"He also urged them to continue to 'stick to the truth.

"'If you have a good product you don't need to color the truth, and you have a good product.'

"And as a parting shot, he reiterated:

"'I assure you these three dams are going to be built.'

"The colonel was introduced by Larry Hale, chamber president.

* * *

"His audience hadn't had sufficient time to warm up yet when Col. Vernon W. Pinkey made with his first 'jolly' Friday noon.

"The colonel allowed as how he probably would have shown up with his pith helmet, with the words 'Keep Busy' emblazoned thereon.

"When there wasn't even a titter, the colonel was equal to the occasion:

"'I presume from the lack of response you people don't read the Arkansas Gazette.'

"The Gazette, it might be pointed out, featured at least two editorial cartoons during the Cossatot controversy showing the 'big bad corps' with the pith helmet, muscling its way past the conservationists — or trying to.

"The colonel, understandably, touched lightly on the controversy, but did tell his listeners that with the proper organization to start with, 'you could have whipped those birds before they got started.'

"He meant, of course, that the dam could have been completed before the conservationists mustered their forces to keep the Cossatot a free-flowing stream."

[As indicated, the defendants refused to admit that Colonel Pinkey made the statements attributed to him in the newspaper article. They refer the Court to the Colonel's affidavit of March 3, 1972. That affidavit is as follows:

"I, Vernon W. Pinkey, Colonel, USA Retired, being fully sworn upon oath, depose and say:

"(1) That I was the district engineer of the Tulsa District, Corps of Engineers, through July 31st, 1971, on which date I retired from the military service.

"(2) That I am aware that I have been accused of bias with regard to Gillham Dam on the Cossatot River, Arkansas, and that I utilized my position to insinuate my bias into the environmental impact statement on that project. That evidence of that bias is alleged as a result of an article in the DeQueen newspaper.

"(3) That to the allegations of bias and influence on the environmental impact statement, I make the following statements:

"(a) The article printed in the newspaper is not a complete quotation to my extemporaneous response to a question by an individual at the dinner. In essence, I stated, 'I am convinced that someday these lakes will be built. It may not be for 30 years, but the people will find that they have a need for them.'

"(b) When the District launched its effort to prepare the environmental impact statement, I only made three decisions with regard to its content. These were, that it would be comprehensive, that it would be a full disclosure, and that it would be laid out according to the explosion diagram which accompanied the draft statement.

"(c) I never saw the text that was developed during this period nor did I discuss its content with those who were charged with its development, because in the rush of work to prepare for the dedication of the McClellan-Kerr Waterway by the President of the United States in June and afterwards in the preparation for the termination of my tenure as district engineer and my retirement from the military service, I was too busy to discuss any aspect of the environmental impact statement, other than schedules for its preparation and mailing."]

The Court assumes that it has now reviewed all of the evidence which plaintiffs would tender to the Court in support of their contention that the final EIS was not objective and impartial. Whether a genuine issue of material fact exists will depend upon the Court's conclusion as to the requirements of the National Environmental Policy Act of 1969 (hereinafter "NEPA") with respect to the impartiality and objectivity of the officials and employees of responsible governmental agencies in the discharge of their duties under that law.

Plaintiffs contend that if the defendants admit that Colonel Pinkey made the statements attributed to him in the newspaper, then, "defendants' new EIS is deficient as a matter of law". They contend that there is "a quasi-judicial duty to inquire and evaluate objectively". They urge that it is not necessary for the Court to find that the defendants acted in actual bad faith.

In support of their contentions as to the law on this subject, plaintiffs quote from the of this Court's opinions in this very case as follows, "The Congress of the United States is intent upon requiring the agencies of the United States government . . . to objectively evaluate all of our projects . . ." (emphasis supplied). See 325 F. Supp. at 746. They also cite Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), to the effect that studies with regard to environmental efforts must not be simply "post hoc rationalizations", and they quote from Environmental Defense Fund, Inc. v. Hardin, 1 ELR 20207, 20208 (D.D.C. 1971), as follows: "The act envisions that program formulation will be directed by research results rather than that research programs will be designed to substantiate programs already decided upon".

In their turn, the defendants also cite the case of Citizens to Preserve Overton Park, Inc. v. Volpe, supra, quoting from it as follows:

"[I]nquiry into the mental processes of administrative decision makers is usually to be avoided, United States v. Morgan, 313 U.S. 409, 422 (1941). And where there are administrative findings that were made at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or improper behavior before such inquiries may be made."

The defendants in their brief also state that the alleged remarks of Colonel Pinkey are irrelevant. They point out that, as District Engineer, he was responsible for the first draft of the impact statement. Then the draft was sent to the Divisional Engineer who reviewed it and made his report. Then the statement was referred to [2 ELR 20262] the Chief of Engineers who again re-studied it and made his recommendations to the Office of the Secretary of the Army. The Secretary of the Army then reviewed the impact statement and submitted same to the Office of Management and Budget. After these reviews the statement was submitted to the Council on Environmental Quality and, through it, to the President of the United States and the Congress. (Note: Proof that the particular EIS followed these procedures is not before the Court. The Court calls upon the defendants to submit and file an affidavit establishing same, and it will be deemed admitted, if not controverted by affidavits submitted by the plaintiffs within ten days of said filing.) Defendants contend that any statement by Colonel Pinkey would be one made by him as an individual setting forth his personal views and cannot be taken as the position of the United States Army or the Corps of Engineers, or as binding upon it, citing Congress Construction Co. v. United States, 314 F.2d 527 (1963), c.d., 365 U.S. 817.

The defendants also argue that the plaintiffs' contention that the defendants violated the guidelines by filing their motion to vacate the injunction within thirty days of the filing of the EIS misses the intent of the guidelines which state, "no administrative action subject to Section 102(2)(C) is to be taken sooner than . . ." (emphasis supplied).

The Court's opinion as to the objectivity and impartiality required by NEPA in the preparation of impact statements, and in the impact statements themselves, is at variance with the position of the plaintiffs and possibly at variance with the position of the defendants.

It is true that this Court and other courts have made it clear that NEPA requires the agencies of the United States government to objectively evaluate their projects. But the kind and degree of objectivity must be inferred from the provisions, policies and objectives of NEPA.

The Congress did not choose to vest in anindependent administrative or quasi-judicial agency the function and responsibility of preparing and compiling environmental impact statements. Rather, they placed that obligation directly upon the federal agencies whose proposed acts (or proposals for legislation) were likely to have an impact upon the environment. By so doing, Congress consciously, it must be assumed, placed this responsibility upon the very public servants who, by the nature of things, would probably be the least objective in reporting facts and urging arguments which would tend to negate the wisdon of projects within the traditional mission of such agencies. They chose to rely upon self-analysis and self-examination rather than upon independent analysis of examination. One cannot divine all of the practical and philosophical arguments that preceded the adoption of such a legislative policy, but among them might well have been the attitude that self-analysis would, among other things, produce an additional benefit by forcing the development in each of such federal agencies of a broader perspective and an increased awareness of the role of such agencies and of the impact of the acts of such agencies in the broader scheme of things. Whatever the reasons, it is clear that Congress was not looking for the type of objectivity and impartiality that one would expect from judicial, quasi-judicial, or even independent administrative tribunals. Indeed it might be doubted that Congress would ever intend or desire that federal "action" agencies be staffed solely with objective and impartial administrators, at least as pertains to the mission of such agency. In such agencies, as within any goal-oriented organization, one looks for commitment rather than neutrality. Frequently Hamlets do not serve such agencies as well as dedicated, purposeful individuals who believe in the programs committed to their care and control by the Congress. To dam builders the structure of the embankment and its mechanical and engineering accountrements and the lakes impounded thereby must be the ultimate in beauty. No one should expect it to be otherwise. In like manner, all such structures might well be anathema to officials in environmental protection agencies.

Now, the Congress, having placed the responsibility for identifying and reporting the environmental impacts of federal projects upon the very agencies which are charged with the administration of such projects, nevertheless has clearly required of such agencies that they objectively report and evaluate those impacts. In such a context, what kind objectivity was it looking for?

At a minimum, the involved federal agency must make a good faith effort to comply with the provisions of NEPA. It is clear, however, that it is possible for federal officials and federal employees to comply in good faith with that Act even though they personally oppose its philosophy, are "anti-environmentalists", and have unshakable, preconceived attitudes and opinions as to the "rightness" of the project under consideration.

The Congress has avoided the "objectivity" problem to a certain extent by specifying just what is required of the agency preparing the impact statement. NEPA requires that a "detailed statement" be prepared by "the responsible official" on:

"(i) The environmental impact of the proposed action.

"(ii) Any adverse environmental effects which can be avoided should the proposal be implemented.

"(iii) Alternatives to the proposed action.

"(iv) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity.

"(v) Any irreversible or irretrievable commitment of resources which would be involved in the proposed act, should it be implemented."

And his agency must also study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

It is inevitable in situations like this that there will be, practically, irreconcilable conflicts of opinion. It is clearly not the role of the Court to resolve such conflicts or to make any independent judgments of its own as to the correctness or wisdom of the ultimate decision of the responsible administrator. Nor must those officials in the agency involved abandon their own opinions in favor of contrary or varying opinions. It is sufficient that all such known contrary or varying opinions be noted so that they may be considered "upon the line" and, indeed, ultimately by the CEQ, the President and the Congress itself.

I have set out my tentative, but rather firm, views on the type of objectivity and impartiality required by NEPA, because I feel that if those views are correct there may be no need for another hearing which, I gather, would be primarily for the purpose of showing what Colonel Pinkey did, or did not, say at DeQueen.

In order to clearly focus on any possible remaining genuine, factual issues, I request Mr. Arnold to comment on the above and also to specifically state the proof which he would offer, assuming any further hearing were held, specifying the factual issue in support of which such proof would be tendered. I request Mr. Arnold to give me such a reply by March 29, 1972, and I will ask the United States Attorney to respond by Friday, March 31, 1972.

As you know, the Court is following a very busy trial schedule. Nevertheless this case presents issues of great public importance and I therefore wish to dispose of it as quickly as possible.