Sierra Club v. Froehlke

No. 72 C 584(4) (E.D. Mo. July 11, 1973)

In this challenge to the Corps of Engineers' Meramec Park Dam and Reservoir Project, the court denies a motion by the Meramec Basin Association to intervene as a party defendant but grants leave to file memoranda of law as amicus curiae. The court denies, without prejudice to refiling, plaintiffs' motion for summary judgment on the adequacy of the operative EIS, because a much fuller supplmental EIS is being circulated for comment. The court requests oral argument on a motion to require plaintiffs to maintain this suit as a class action.

Counsel for Plaintiffs
Alan C. Kohn
Kohn, Shands & Gianoulakis
411 North Seventh Street
St. Louis, Missouri 63101

Counsel for Defendant
David W. Harlan First Assistant U.S. Attorney
U.S. Courthouse
St. Louis, Missouri 63101

[3 ELR 20724]

Wangelin, J.

MEMORANDUM AND ORDER

Plaintiffs, in this action, seek judicial review of the plans of the United States Army Corps of Engineers to construct the Meramec Park Dam and Reservoir Project (hereinafter referred to as "the Meramec Project") at Mile 108.7 on the Meramec River in this judicial district. The action is presently before the Court on the motions of (a) the Meramec Basin Association for leave to intervene as a party defendant pursuant to Rule 24, Federal Rules of Civil Procedure; and (b) the defendants (1) to strike the affidavits filed in support [3 ELR 20725] of the plaintiffs' motion for summary judgment and (2) for an order that the action be maintained by the plaintiffs as a class action.

The Meramec Basin Association seeks to intervene as a party defendant pursuant to Rule 24(a)(2), intervention as a matter of right that is available

when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties;

or, alternatively, Rule 24(b)(2), permissive intervention that is available "when an applicant's claim or defense and the main action have a question of law or fact in common." After due consideration of the instant motion to intervene, the Court will deny said motion. However, the Meramec Basin Association is invited, and will be granted leave, to file memoranda of law, as it desires, as amicus curiae.

Plaintiffs' motion for summary judgment is founded upon the alleged insufficiency of the Environmental Statement dated November 6, 1970. Plaintiffs seek an order enjoining further governmental action in the development of the Meramec Project. However, the defendants have represented, and the plaintiffs do not contest, that substantial construction work on the proposed dam will not be begun until the fourth quarter of Fiscal Year 1974. Furthermore, the defendants have filed the affidavit of Milton P. Mindel, Chief of the Engineering Division, U.S. Army Engineer District, St. Louis. Mr. Mindel states that a revised supplemental Environmental Impact Statement, filed with the Court for information purposes, is now being circulated for comment. It is tentatively expected to be filed with the Council on Environmental Quality in September of 1973.

In light of these considerations the Court is of the opinion that plaintiffs' motion for summary judgment must be denied at this time. The Court has studied both the presently operative Statement and the Statement to which Mr. Mindel refers in his affidavit. They differ vastly in scope and depth of study and analysis. The Court believes it improvident to rule on the present Statement when a revised Statement is expected. However, the plaintiffs may move again for summary judgment after October 1, 1973, if by that time the presently operative Statement has not been supplanted. Environmental Defense Fund, Inc. v. Froehlke, slip op. No. 72-1628 (8th Cir. April 20, 1973). Defendants' motion to strike affidavits will be denied as moot.

Defendants move to have this action maintained as a class action by the named plaintiffs on their behalf and in behalf of the class of those similarly situated. Plaintiffs oppose this motion. This motion is one of no little significance and one on which the Court desires to hear oral argument. Therefore, this motion will be taken out of submission and oral argument scheduled for the August motion day.

In consequence,

IT IS HEREBY ORDERED that the motion of the Meramec Basin Association to intervene as a party defendant be and is denied; however, said Meramec Basin Association is granted leave to participate in this action as amicus curiae; and

IT IS FURTHER ORDERED that the motion of the plaintiffs for summary judgment be and is denied without prejudice to refiling after October 1, 1973; and

IT IS FURTHER ORDERED that the motion of the defendants to strike affidavits be and is denied as moot; and

IT IS FURTHER ORDERED that the motion of the dedefendants that the action be maintained by the plaintiffs as a class action pursuant to Fed. R. Civ. Pro. 23 be and is deferred until after the parties present oral argument thereon on the August motion docket. Dated this 11th day of July, 1973.