Neuse Valley Association v. Richardson

No. 4218 (E.D.N.C. June 22, 1973)

In a case brought by an association of private citizens challenging an Army Corps of Engineers' dam project, the court refuses to enjoin mere acquisition of land by the Corps, and on a cross motion refuses to enjoin the plaintiffs from cutting timber and otherwise damaging the land in the project area. While the Corps is preparing an updated environmental impact statement and confining activity to land acquisition to reduce costs should the project be finally approved, a preliminary injunction would be contrary to the public interest. Assuming without deciding that the court has jurisdiction to restrain private citizens from acts allegedly detrimental to the environment in the project area, the court denies an injunction because the defendant Corps has not shown sufficient likelihood that its proposed project will prevail on the merits.

Counsel for Plaintiffs
Robert Spearman
P.O. Box 389
Raleigh, North Carolina 27602

Counsel for Defendant
John E. Lansche Assistant U.S. Attorney
P.O. Box 26897
Raleigh, North Carolina 27611

Counsel for Intervenor, City of Raleigh
Howard E. Manning
P.O. Box 1150
Raleigh, North Carolina 27602

[3 ELR 20658]

Dupree, J.

MEMORANDUM OF DECISION AND ORDER

Alleging that the Environmental Impact Statement prepared by the United States Army Corps of Engineers in conjunction with the construction of a dam across the Neuse River in Wake County, North Carolina ("the Falls Lake Project"), "is inadequate, incomplete and unlawful in violation of the procedural requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and that the project would have a disasterous (sic) effect upon the environment, in contravention of the substantive standards of the National Environmental Policy Act, 42 U.S.C. § 4331", the plaintiffs, who are more particularly identified in the margin,¹ seek to enjoin permanently the construction, completion, and related acts in furtherance of the project. The case is before the court on plaintiffs' motion for a preliminary injunction and a cross motion of the defendants for an injunction restraining the plaintiffs from cutting timber, clearing land, constructing buildings or roads and dumping trash on any of the land within the "government acquisition line" of the Falls Lake Project. The court has concluded that both motions should be denied at this time.

The facts relating to the Falls Lake Project have been accurately summarized in defendants' brief as follows:

The Neuse River of North Carolina has been the subject of concern by the United States Congress and the Corps of Engineers since the late 1920's. This concern became magnified in June of 1956 when Congress, at the request of several members of the North Carolina delegation, and in recognition of the annual flood damage occurring in the Neuse River Basin; the criticality of municipal and industrial water supplies; the scarcity of public outdoor recreational facilities; and the seriousness of stream water quality problems; directed the U.S. Army Corps of Engineers to undertake a study of the Neuse River Basin to determine ". . . whether improvements for flood control, conservation of water resources in the interests of water supply, and for allied purposes . . ." were warranted.

[3 ELR 20659]

This study, in the format of a general long-range plan, was completed in December, 1963 and proposed to Congress in mid-May, 1965. The Falls Lake Project was recommended to Congress as the most important project of the general plan and the only project for which an immediate need was firmly established. On October 27, 1965, after a review of the Corps' study, Congress enacted Public Law 89-298 authorizing construction of the multi-purpose Falls Lake Project to meet the most immediate and urgent needs in the Neuse River Basin for flood control, water quality control, water supply for Raleigh and water-oriented recreation. The remaining projects in the general plan are to follow as the needs develop.

Upon authorization of the Falls Lake Project by Congress, planning proceeded for the necessary land acquisition and the construction itself. With the passage of the National Environmental Policy Act of 1970, 42 U.S.C. §§ 4331, et seq., (NEPA), it became incumbent upon the Army Corps of Engineers to prepare an Environmental Impact Statement. After coordination with various local, state, federal and private organizations and agencies, and various private individuals, the Final Impact Statement (FIS) was released on February 10, 1971. As the project proceeded into the advanced engineering and design stage, further information for updating of the FIS was identified, studied and developed. The Corps is currently scheduled to complete an extensive updating of the FIS by August, 1973. This updating will reflect the continuing study of environmental factors that has taken place since authorization of the project.

Concerning certain relevant physical and geographical characteristics of the project, the proposed damsite location is in Wake County, just northwest of the village of Falls, North Carolina, on the Neuse River and 189 miles above its mouth. This is some 10 miles north of Raleigh and 17 miles east-southeast of Durham. About one-half of the project area is in Wake County, three-eighths in Durham County and one-eighth in Granville County. The proposed dam itself will be constructed of earth and rock fill with a height of 92 feet and an overall length of 1,915 feet. As stated in the Congressional authorization itself, the project will result in flood control, water quality control, water supply and recreational benefits for the people of the Neuse River Basin and the remainder of the State of North Carolina as well.

The government has acquired a few tracts of land for the project, but no construction or preparations for construction have been undertaken. Defendants have agreed not to do so pending final determination of this action on the merits.

PLAINTIFFS' MOTION

Defendants concede that an Environmental Impact Statement (EIS) is required under NEPA. The thrust of plaintiffs' motion for a preliminary injunction is their charge that the EIS presently on file is grossly inadequate for that (1) it does not contain a detailed consideration of the environmental impact of the project and (2) that it does not provide a detailed statement on alternatives to the proposed action.

Plaintiffs have submitted affidavits tending to show that certain rare species of wildlife (a bivalve mollusk, salamander, catfish and woodpecker) will be endangered by the project; that there will be huge losses of crop and timber income; and that the proposed recreation areas will generate intolerable amounts of pollution of all kinds. Plaintiffs contend that these factors are not properly considered and evaluated in the brief EIS presently outstanding.

Other affidavits submitted by plaintiffs name several alleged alternatives to which the City of Raleigh could turn for its water supply, and several alternative means of reducing flood damage and achieving water quality control. The present EIS is attacked for its failure to discuss and analyze these alternatives.

Since the hearing plaintiffs have filed a motion for leave to submit an additional affidavit and exhibits relating to a water quality study prepared by the Environmental Protection Agency. This motion is allowed and the court has considered the affidavit and exhibits in connection with this decision.

While defendants do not concede the inadequacy of the present EIS, they obviously are not content to rely on it with full confidence, for they have in process of preparation an "updated" EIS. Plaintiffs, citing Arlington Coalition on Transportation v. Volpe, 485 F.2d 1323 (4th Cir. 1972), assert that this is not sufficient and that all further activity by defendants in furtherance of the project must be enjoined at this time.

It is true that the Fourth Circuit in Arlington ordered all work on an interstate highway project halted pending the preparation and approval of an Environmental Impact Statement, but because of factual differences between that case and this one it is not considered controlling here. In Arlington no EIS of any kind had ever been prepared, and the Secretary of Transportation contended that he was not required to prepare one. Construction of the interstate highway, which was to traverse at least two public parks, was ready to begin, and as the court quire properly pointed out, once a highway is designed and construction is commenced, it becomes increasingly difficult and expensive to undo the project and restore the status quo. Continued investments of time, effort and money in a project of this kind makes alteration or abandonment increasingly less wise and therefore increasingly unlikely.

In the case at bar, however, defendants do not propose to begin any phase of construction of the project prior to the submission and approval of the final EIS. In the interim defendants seek only to proceed with land acquisition. They have submitted affidavits and evidence from which the court is satisfied that escalating land costs in the area are going to make it impossible to keep the cost of the project within acceptable limits if they are not allowed to proceed with land purchases at this time.²

At this point the public interest intervenes, and it becomes necessary to balance the equities between the public interest and that of the plaintiffs. It the court's opinion the scales tip in favor of allowing the defendants to proceed with land acquisition.

Whether the final EIS compiled by defendants will result in approval of the project's construction remains to be seen. If it does not, the government will have acquired real estate for which it will have no use, but no harm will have been caused to the environment in the process and the land will be readily resalable perhaps at a profit. On the other hand, if defendants finally get the go-ahead, spiraling land costs may have made the cost of the project prohibitive, and plaintiffs will have won their case by the simple expedient of keeping it "tied up in court". In this event the public will be faced with the necessity of paying the inflated costs or being denied the benefits of a project which Congress has authorized as being in the public interest and which the interested agencies have found in compliance with the requirements of NEPA.

Nothing herein is to be construed as an expression of opinion on the merits of the controversy or the sufficiency of the EIS presently on file. Even if the court should find a deficiency in this EIS it would not preclude a balancing of the equities and a denial of injunctive relief if not warranted by all the facts. Environmental Defense Fund, Inc., v. Armstrong, 356 F. Supp. 131 (N.D. Cal. 1973). As previously indicated the court feels that the equities in favor of the public interest and hence the defendants, predominate at this time and the preliminary injunction sought by the plaintiffs should be denied.

DEFENDANTS' MOTION

The defendants' motion for an injunction restraining the plaintiffs from cutting timber, clearing land, constructing or altering buildings and roads and the dumping of fill dirt or trash upon the lands involved is based upon allegations backed by affidavits tending to show that the plaintiffs, individually and perhaps in concert, and contrary to their avowed purpose of environmental protection and conservation as expressed in their complaint, have cut a considerable amount of timber within the boundaries of the proposed project without reseeding or reforesting the cleared areas thus leaving the land stripped and naked and subject to erosion; that roads [3 ELR 20660] have been cut with bulldozers increasing erosion and siltation into the Neuse River and its tributaries; that subdivisions have been laid out and developed; and that there has been uncontrolled dumping of trash and refuse within the project acquisition line. Defendants aver that continuing acts of this kind are inflicting irreparable injury, loss and damage both to the defendants and to the land itself.

The question of whether the court has jurisdiction to enjoin private persons from committing the acts herein complained is not entirely free from doubt, but for present purposes the court will assume that it has such jurisdiction. Application of settled equitable principles and the balancing of the equities here was done in connection with plaintiffs' motion impels the conclusion that the requested relief should not be granted at this time.

The first factor to be considered by the court in determining whether an injunction shall issue is the probable chance of success of the movant on the merits. It is true that the approval by Congress of the Falls Lake Project was based on a massive record compiled after years of study by the Corps of Engineers, and in this record virtually all of the matters now required to be covered by an Environmental Impact Statement were considered and reported. The Corps obviously remains convinced that the benefits to be derived by the public from this project, even at this late date, will outweigh its costs and adverse effects upon the environment and affected individuals. But to say at this stage before defendants' final EIS is submitted and approved that defendants are likely to prevail on the merits would involve a speculation in which the court is not prepared to indulge.

Having failed to make the required showing of likelihood of success on the merits, it follows that defendants' motion for a preliminary injunction must be denied. In view of the fact that defendants propose to file their updated and final EIS in August, 1973, and the further fact that under the law and regulations all further activity on the project must be suspended for four months thereafter while the EIS is being circulated and considered, this ruling will be made without prejudice to the rights of defendants to renew their motion for further consideration in the light of the final EIS following its preparation and filing.

It is the intention of the court to calendar this case for disposition on the merits within two weeks after final action on the EIS by the appropriate authorities.

For the reasons herein stated it is now

ORDERED:

1. That plaintiffs' motion for a preliminary injunction is denied;

2. That defendants' motion for a preliminary injunction is denied without prejudice.

1. Plaintiff Neuse Valley Association is a non-profit, unincorporated Association said to be composed of more than 1,000 citizens and landowners who reside in Wake, Durham and Granville Counties. The individual plaintiffs are residents of three three counties, ten of whom own land within the acquisition area for the Falls Lake Project. The plaintiffs allege that they are "dedicated to the conservation and protection of the Upper Neuse River Basin, to the preservation of the environmental character of the area in which the Falls Lake Project is situated, and to the application of sound economic and social policies in determining and providing for water supplies, water quality control, wildlife management, flood control and land use within the Upper Neuse River Basin."

The defendants are the Secretary of the United States Department of Defense, the Secretary of the Army and the Chief and other Engineers of the United States Army Corps of Engineers, the governmental agency charged with the responsibility of planning, developing and constructing the Falls Lake Project.

2. The evidence establishes that from 1968 to 1970 the cost of land increased at the rate of 8% to 12% annually. Costs rose 18% in 1970 and about 25% in 1972. The estimated increase for 1973 is 30% and for 1974 it is 35%.