Committee for Green Foothills v. Froehlke

No. C-73-1344-SAW (N.D. Cal. September 18, 1973)

The court refuses to enjoin the filling of 200 acres of marshland bordering San Francisco Bay with refuse from San Francisco, although no EIS was filed with the 1973 Corps of Engineers permit authorizing the fill program. The filling operation is part of an ongoing project, begun in 1966, to create a park and recreation area, and as such, according to CEQ Guideline 11, requires an EIS only if practicable. The court concludes that since both parties have presented substantial claims of irreparable injury and defendants' statutory duty is ambiguous, it is appropriate to undertake a balancing of the equities. After assessing this balance, the court rules that the danger of the city's having no place to dispose of its refuse outweighs the loss of the land, especially since 50 acres of the marshland must be preserved as a wildlife mitigation area under the terms of the Corps' permit.

Counsel for Plaintiff
J. William Dawson
Peter R. Holmes
530 Oak Grove Avenue
Menlo Park, California 94025

Counsel for Defendants
Thomas M. O.Connor City Attorney
John S. Kenny Deputy City Attorney
206 City Hall
San Francisco, California 94102

[3 ELR 20861]

Weigel, J.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Plaintiff is the Committee for Green Foothills, a California [3 ELR 20862] non-profit membership corporation, with offices in Palo Alto. It has about 1000 family members and is concerned with environmental preservation of the southern San Francisco Bay Area. The defendants are Robert F. Froehlke, Secretary of the United States Army; Lt. Gen. Frederick J. Clarke, Chief of the Engineers, United States Army Corps of Engineers; Col. James L. Lammie, District Engineer for the Army Corps of Engineers, San Francisco District; the City of Mountain View; Vernon G. Hazen, Acting Manager, City of Mountain View; and, as an intervening defendant, the City and County of San Francisco.

Plaintiff seeks to enjoin the filling of a certain marshland area bordering San Francisco Bay near Mountain View. The area is known as Casey Slough. Some 90 acres in size, it is located 35 miles south of San Francisco, 10 miles north of San Jose. The cities of Mountain View and San Francisco desire to fill the slough as part of a new 544-acre public recreation area named Shoreline Regional Park. The Army Corps of Engineers ("the Corps") has granted a permit to fill Casey Slough. The filling would destroy its natural state.

The principal claim made by plaintiff is that the Corps granted the permit unlawfully because it did so without first preparing an Environmental Impact Statement ("EIS), pursuant to Section 102(2) (C) of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § et seq.

The Court has carefully considered the complaint, the voluminous affidavits, the numerous exhibits, and the extensive legal memoranda submitted by the parties. The Court has also examined the administrative record of the Corps and has heard arguments of counsel presented in the course of three hearings. The Court has concluded that the motion for a preliminary injunction must be denied.

Chronology and Proceedings to Date

In 1965, the City of Mountain View sought a federal grant for the acquisition and development of the Shoreline Regional Park. In 1966, Mountain View spent $600,000 on development of the park from bond funds authorized in a city election that year. Later the same year, the Supervisors of Santa Clara County, in which county the city is located, voted to contribute an additional $600,000.On August 13, 1966, the federal Bureau of Outdoor Recreation ("BOR") approved the acquisition of 495 acres and a federal grant of $1,175,000. BOR approved a second federal grant of $100,000 on December 28, 1966.

In January, 1968, the City of Mountain View completed the General Development Plan.The plan provided for an 18-hole public golf course and centers for recreation, horseback riding, target shooting, etc. It also provided for five lakes, meadow areas, a zoo and a marina. The largest planned lake was a salt water one for boating to be developed within the present site of Casey Slough.

During 1968, the City of Mountain View spent an additional $2,000,000 on acquisition and other costs. During the same year, the City also commenced negotiations for leasing protions of the park site for refuse disposal and for filling operations. These negotiations were with the City and County of San Francisco, Sanitary Fill Company and Easley & Brassey Corporation.

On January 1, 1970, the National Environmental Policy Act became effective. Prior to that date, a total of approximately $4,475,000 had been expended on the park from public funds, of which $1,275,000 consisted of federal grants. (Affidavit of Vernon G. Hazen, Acting City Manager for the City of Mountain View, Aug. 7, 1973, at pp. 2-3; Environmental Assessment and Finding of Fact, prepared by the Army Corps of Engineers, issued June 28, 1973, p. 1, Exh. 23 to Affidavit of J. L. Lammie, District Engineer, Army Corps of Engineers, August 14, 1973 (hereafter "Corps' Environmental Assessment")).

Later in 1970, the City of Mountain View learned that earth fill, which it had counted upon, would not be available from the subway construction of the Bay Area Rapid Transit District, nor would sanitary fill (i.e., refuse) be available from certain Bay Area cities other than San Francisco. As a result, on March 20, 1970, the City and the Mountain View Shoreline Regional Park Community entered into two contracts. One was a waste disposal agreement with the City and County of San Francisco and with the Sanitary Fill Company, authorizing disposal of San Francisco refuse at the park site for a period of five years. The other was an agreement with Sanitary Fill Company and with Easley & Brassey Corporation, leasing park areas for refuse disposal under the "sanitary landfill" method. Both contracts have sagefuards against environmental pollution.

Actual excavation and filling by the sanitary landfill method, as well as other construction, began during the period August-November, 1970. The sanitary landfill method involves several steps. Earth is excavated and water removed from the areas in which the refuse is to be placed. This creates large pits or "cells". The cells are lined with a clay seal. Compacted refuse is placed in the cells and covered with a layer of earth, called "sanitary fill cover". Earth which has been excavated to create the cells is moved to other areas of the park site for use there as fill.

As of August, 1970, the only agency from which the City of Mountain View needed a permit was the California Regional Water Control Board ("RWQCB"). The role of RWQCB was and is to insure that material from the refuse-filled cells would not leak laterally through the clay seals and pollute adjacent areas of water. The park plan included a water quality monitoring system. On August 27, 1970, after consulting various state and local agencies and private groups, the RWQCB granted a permit authorizing the use of the sanitary landfill method. There is no evidence that the conditions and requirements of that permit have ever veen violated.

The Corps had neither claimed nor asserted jurisdiction over any park project lands prior to June 11, 1971. It did not do so then but, on that date, the San Francisco District of the Corps did issue a public notice which extended the Corps' own definition of its jurisdiction over United States "navigable waters" under the claimed authority of the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. § 401 et seq.). On January 18, 1972, by another public notice, the Corps purported to clarify the June 11, 1971 definition. In both cases, the Corps was merely notifying the general public. It did not then nor earlier attemp to assert that its newly claimed jurisdiction extended to any portion of the Shoreline Regional Park. The work at the site continued. By the fall of 1972, about two-thirds of the park's 544 acres had been filled.

On October 22, 1972, based upon complaints from several individuals, the Corps for the first time asserted jurisdiction over approximately 200 acres of the park site, including the 90 acres of Casey Slough. The Corps that day issued a "Cease and Desist" order against all excavation and filling the the 200 acres until Mountain View and San Francisco obtained a Corps permit for the work to continue pursuant to the Rivers and Harbors Appropriation Act (33 U.S.C. § 403). On November 9, 1972, those cities applied for a permit, while expressly reserving the right to contest the Corps' assertion of jurisdiction.

For the next nine months, the Corps permit process ran its course. After the two cities had submitted the necessary information concerning the nature of the park project, the Corps, on November 17, 1972, sent a public notice describing the proposed work to interested parties including the appropriate U.S. Senators and Congressmen, the Regional Director of the Bureau of Sports Fisheries & Wildlife ("BSF & W") of the Department of the Interior, the Regional Director of the National Park Servioce, the Regional Administrator of the Environmental Protection Agency, the Regional Director of the National Oceanic and Atmospheric Administration, the California State Fish and Game Department, the California RWQCB, the San Francisco Bay Conservation and Development Commission, and various environmental groups. Most of those agencies approved of the project and recommended that the permit be granted. Two agencies, the California Department of Fish and Game and the U.S. Department of the Interior (the later speaking for both BOR and BSFW) stated that they would approve issuance of the permit only if an acceptable "wildlife mitigation plan" were developed to compensate for the loss of wildlife habitat which might be caused by filling Casey Slough. After receiving the Interior Department's comments, the Corps delayed further processing of the permit application pending the preparation of a mitigation plan. Between January 9, 1973 and May 29, 1973, Mountain View city officials met extensively with representatives from the Interior Department, the California Fish and [3 ELR 20863] Game Department, and environmental groups. In early June, 1973, both Interior and Fish and Game accepted a proposed mitigation plan requiring that 50 acres of the filled-in parkland be set aside as a wildlife habitat. The two agencies, together with the Resources Agency of California (the official spokesman for all environmentally oriented California departments), approved the issuance of a permit contingent upon the implementation of the mitigation plan.

On June 22, 1973, Col. Lammie, the Corps' District Engineer, noticed a public hearing for July 10, 1973, to obtain official and private opinion concerning the merits of the permit application. The notice was sent to interested private persons and groups, including plaintiff, as well as to interested public agencies at all levels. On June 28, 1973, Col. Lammie issued an Environmental Assessment and Finding of Fact: Mountain View Shoreline Regional Park, which discussed the nature of the park project, its history, its "adverse" and its "positive" impacts, and the mitigation plan. The conclusion was this (p. 27):

At this time, based upon the Corps of Engineers environmental assessment and evaluation of the total Mountain View Project, it has been determined that the project would not result in a significant adverse affect [sic] upon the quality of the human environment, and, therefore, an additional environmental report, an environmental impact statement, will not be prepared unless it is clearly established in evidence brought out at the public meeting on 10 July 1973, that a significant environmental impact on the human environment will occur.

On the evening of July 10, 1973, the Corps conducted the public meeting at the Mountain View High School Auditorium. Public officials and private citizens, some representing groups, testified both for and against the issuance of the permit for a total of six hours. The testimony was transcribed and has been made part of the administrative record.

On July 31, 1973, Col. Lammie issued his Statement of Findings which concludes (paragraph 11):

After a review of the entire administrative record, and the public interest and environmental factors associated with the issuance or denial of the permit, I have determined that it would be in the best public interest to issue the following permit which includes, among others, a condition for a 50 acre wildlife mitigation plan.

On August 1, 1973, Col. Lammie issued a permit for work to continue in the 200 acres subject to the express condition that the mitigation plan be implemented.

On the same day, earthmovers and other machines began disking and filling Casey Slough.

Two days later, plaintiff filed its complaint stating two causes of action: First, that the permit was illegally granted because no impact statement had been prepared; and second, that the permit was void because it was issued in violation of the Rivers and Harbors Appropriation Act, 33 U.S.C. § 403. (In addition, by leave of Court granted on August 17, 1973, plaintiff was allowed to file an amendment to the complaint which states a third cause of action to the affect that the permit was invalid because applicants had not obtained a mandatory certification from the California Regional Water Quality Control Board). Plaintiff claims federal jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702 (persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute"); under 28 U.S.C. § 133(a)(federal question exceeding $10,000 in controversy); and under 28 U.S.C. § 2201 (declaratory judgment).

Defendants deny that an EIS is required and allege that Casey Slough must immediately receive earth excavated from other areas of the park site in order to make room in those areas for San Francisco's refuse. Otherwise, defendants assert, the City of San Francisco will be without a garbage disposal site this coming winter, precipitating a public health crisis of major proportions.

Casey Slough is the only area of the park site to which the complaint is directed. When plaintiff first moved for a temporary restraining order on August 3, 1973, it alleged that in two days 80% of Casey Slough had been disked and 5% had been filled. Plaintiffclaimed that this work had not yet caused irreparable damage, and that in a year Casey Slough could be restored to its natural state. However, plaintiff also alleges that any further destruction of the slough would constitute irreparable injury.

On August 3, 1973, the Court issued a temporary restraining order halting work on Casey Slough. This order was issued to preserve the status quo. In practical effect, it has remained in force ever since. After a full scale hearing on August 17, 1973, the Court took plaintiff's motion for a preliminary injunction under submission. It is that motion which the Court now decides.

Preliminary Legal Considerations

There is no merit in defendants' claim that plaintiff lacks standing to sue. The plaintiff corporation takes special interest in the preservation of the southern Bay Area. Its members frequently visit the Bay's shores for purposes such as hiking, birdwatching, and the general enjoyment of the scenery, natural surroundings and wildlife. (Complaint, P3; Affidavits of Kent G. Dedrick, Ruth Troetschler, Nancy Armstong Holmes, Irene Brown, H. Thomas Harvey, and Henry G. Weston, Jr.). Plaintiff has therefore alleged both "injury in fact" to a cognizable interest, and that it is itself among the injured. This meets the test for standing. Sierra Club v. Morton, 450 U.S. 727, 734-35 (1972).

There is no evidence before the Court indicating that plaintiff has failed to exhaust any available administrative remedy.

Standards Governing Decision on the Motion for Preliminary Injunction

A preliminary injunction is traditionally addressed to the Court's equitable discretion. 11 Wright and Miller, Federal Practice and Procedure (1973 ed.), § 2948, pp. 427-28, n. 13 and cases cited therein. The exercise of that discretion calls for assessment as to these four factors: (1) the likelihood of plaintiff's ultimate success on the merits; (2) the extent of irreparable injury to plaintiff if the injunction is not granted; (3) a balancing of the equities; and (4) the public interest. E.g., Virginia Petroleum Job. Assn. v. Federal Power Comm'n., 259 F.2d 921, 925 (D.C. Cir. 1958), cases cited at 11 Wright and Miller, supra, § 2948, pp. 430-31, n.22.

In this case, those four factors require the answers to two questions. The first: Is an Environmental Impact Statement required? The second: Should the Court issue a preliminary injunction?

Is an Environmental Impact Statement Required?

The primary purpose of NEPA is to force federal agencies to consider environmental issues generated by public or private projects within their respective jurisdictions. See Calvert Cliffs' Co-ordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1112-15, 1122-28 (D.C. Cir. 1971). In that interest, NEPA demands an EIS from the appropriate federal agency involved in any "major Federal action significantly affecting the quality of the human environment". (Section 102(2)(C), 42 U.S.C. § 4332(2)(C)).

The statute requires the Environmental Impact Statement to show in Detail (Section 102(C)):

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternativesto the proposed action,

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

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

The first question is whether a "major federal action" has been undertaken. Here the Guidelines of the President's Council on Environmental Quality ("CEQ") are of service.¹ Guideline 5 provides; [3 ELR 20864] P5. Actions included. The following criteria will be employed by agencies in deciding whether a proposed action requires the preparation of an environmental statement:

(a) "Actions" include but are not limited to:

(ii) Projects and continuing activities: . . . supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance; involving a Federal lease, permit, license, certificate, or other entitlement for use. . . . [Emphasis added.] 36 Fed. Reg. 7724 (April 23, 1971).

There have been two "federal" actions in the course of the Shoreline Regional Park development and both were "major". The first occurred before January 1, 1970, the effective date of NEPA; the second, after it.²

The first federal action was the federal funding of the park in 1966, when BOR approved two federal grants totaling $1,275,000. This was clearly major. These federal grants comprised more than 25% of all public funds spent for acquisition and early development before January 1, 1970. Cf. Julis v. City of Cedar Rapids, Iowa, 349 F. Supp. 88, 89-90 (N.D. Iowa, 1972).

All federal funding was completed in 1966 and there was no federal action thereafter until August 1, 1973, when the Coprs issued the permit for filling Casey Slough. Assuming that the Corps had jurisdiction over the slough area, the granting of the permit was a major action by a federal agency. See, e.g., Zabel v. Tabb., 430 F.2d 199, 201-02, 213 (5th Cir. 1970); Citizens for Clean Air, Inc. v. Corps of Engineers, U.S. Army, 349 F. Supp. 696, 706 (S.D.N.Y. 1972).

The Cities of Mountain View and San Francisco contend that the Corps lacked authority to issue the cease and desist order of October 22, 1972 and the permit of August 1, 1973. Their contention is bottomed on the ground that the Corps' extended definitions of "navigable waters" (dated June 11, 1971 and January 18, 1972) go beyond the governing statute, the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq. If this contention were meritorious, no valid federal action would have occurred after NEPA, NEPA would be inapplicable, and there would be no basis whatever for issuance of a preliminary injunction. Since the Court today decides on other grounds that no preliminary injunction should issue, it does not reach the claim that the Corps lacked jurisdiction. Moreover, the Court takes judicial notice of the fact that the pending case in this court of Sierra Club, et al. v. Leslie Salt Co., et al., C-72-561 WTS (filed March 29, 1972) will determine the legality of the Corps' recently expanding definitions of "navigable waters". In that case, there is massive documentation of highly technical evidence. Here, the factual record is incomplete and the issue is not adequately framed for resolution.

The second question posed under Section 102(2)(C) is whether the grant of the permit to allow the filling of Casey Slough is an action "significantly affecting the quality of the human environment". The evidence on this question is conflicting and close.³ The court need not decide it because another factor compels the conclusion that an EIS was not required in this case. That factor is this: The Shoreline Regional Park was an "ongoing project" at the time (August 1, 1973) when the permit to fill Casey Slough was granted. For ongoing projects, there is a relaxation of the otherwise very strict requirements calling for preparation of an EIS.

NEPA became effective on January 1, 1970. It was several [3 ELR 20865] years earlier, in 1966, that Shoreline Regional Park received approval for the federal grants. There was no further federal action whatever until October, 1972, when the Army Corps of Engineers issued the cease and desist order. Thus the park was an ongoing project as to which federal participation had ended long before January 1, 1970 when NEPA became effective. Cf. San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir. 1973).

The Act itself makes no mention of how it should be applied to ongoing projects. However, the ongoing project question is dealt with specifically in the Guidelines issued by the Council on Environmental Quality. Guideline 11 provides:

"To the maximum extent practicable the section 102(2)(C) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to the enactment of the Act on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program. 36 Fed. Reg. 7727 (April 23, 1971).

That this guideline is applicable to ongoing projects, see Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1282-83 (9th Cir. 1973).

Plaintiff's claim that the Corps acted unlawfully in issuing the permit without first preparing an EIS turns on whether or not it was "practicable" to do so.

The guideline does not suggest how a court is to determine whether or not an EIS is "practicable" in a given set of circumstances. Some courts have expressed the view that an EIS is not required if the project is so near completion that any harm to the environment is already done and cannot be undone. Calvert Cliffs', supra, 449 F.2d at 1128; Lathan v. Volpe, 455 F.2d 1111, 1121 (9th Cir. 1971).The amounts of time, effort, and money spent on a project do not control the question of practicability. Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1176-77 (6th Cir. 1972).

Defendants claim that it is not "practicable" to delay the filling of Casey Slough while an EIS is prepared because any delay will result in a garbage disposal crisis this winter for the City of San Francisco. The delay would be for more than six months. There is no solid evidence controverting Col. Lammie's sworn statement that it would require some 200 days to prepare and fully process an EIS. (Affidavit of J.L. Lammie, August 14, 1973, p. 11). As noted in the above chronology, the park site was leased for use as a refuse disposal site for San Francisco. San Francisco now lawfully disposes of approximately 2,000 tons of solid waste per day at the site of Shoreline Park. If the park is not made ready to receive refuse this coming winter and no other disposal site can be found, there is strong evidence to the effect that there will be no garbage collection in San Francisco. Without collection, refuse will pile up in the streets at the rate of 2,000 tons per day, the equivalent of 90 large truck and trailer loads. (Affidavit of Thomas J. Mellon, Chief Administrative Officer for the City and County of San Francisco, August 7, 1973). There is also credible evidence to the effect that increased propagation of rodents and vermin accompanying the accumulation of refuse would present a very serious public health hazard. (Affidavit of Jack E. Coyne, Chief of the Bureau of Environmental Health Services for the City and County of San Francisco, August 7, 1973).

Determination of the practicability of an EIS rests on whether or not these predictions are supported by the facts. As noted earlier, refuse is disposed of by the "sanitary landfill" method at the park site; the waste material is placed within dewatered cells excavated below ground and lined with a clay seal to prevent pollution of underground waters; the earth excavated for preparing the garbage cells is removed to nearby areas.

Advance excavation for the garbage cells must take place during the dry season. The defendants declare that the only garbage cell presently ready to receive waste material will be filled by mid-January, 1974. The rainy season begins around November 1, and excavation will not be possible after that time. (Affidavit of Wayne D. Trewhitt III, August 7, 1973, at p. 2).

According to the disposal plan, the earth excavated from the garbage cells for use after mid-January, 1974 is to be deposited in an area which includes Casey Slough. The immediate problem is not the placement of garbage, but the placement of the earth fill excavated in preparation for the garbage cells.

Plaintiff argues that there are three alternative areas at the park site where fill could be placed. (Affidavit of Dexter D. Ahlgren, August 9, 1973, pp. 2-4). Defendants' evidence in rebuttal tends to show that none of the suggested alternatives is viable due to the short time remaining before commencement of the rainy season. Two of the three alternative proposals for placement of excavated fill in volve use of one or both of the planned mitigation areas. In light of the fact that the Corps conditioned the issuance of the permit on the establishment of these mitigation areas, these alternatives are not feasible. The third alternative, according to defendants, is unsafe because the additional weight resulting from placement of earth on top of garbage cells could cause failure of the drainage systems established under them. (Supplemental Affidavit Number 1 of Wayne D. Trewhitt III, August 14, 1973, pp. 6-9).

Conflicting evidence was offered as to the feasibility of stockpiling the excavated earth in areas adjacent to the park site, and as to the availability of alternative garbage disposal areas. (Letter attached to Affidavit of J. William Dawson, August 19, 1973; Supplemental Affidavit Number 1 of Wayne D. Trewitt III, August 14, 1973. pp. 4-6; Affidavit of S.M. Tatarian, August 14, 1973, pp. 1-2.) Nevertheless, the more credible evidence demonstrates a substantial probability that, were an EIS to be required for the Shoreline Regional Park, San Francisco would, by this winter, have no place for the sanitary disposal of refuse.

After carefully weighing the total mass of conflicting evidence, the Court concludes that it is not "practicable" to require an EIS for the ongoing park project.

Should a Preliminary Injunction Issue?

Plaintiff claims that the filling of Casey Slough will result in irreparable injury to plaintiff's valid interests and offers strong supporting evidence. (Affidavits of Kent G. Dedrick, Nancy Armstrong Holmes, Irene Brown, and Ruth Troetschler, all dated August 6, 1973). Even if that evidence establishes the claim, it is not dispositive of the question as to whether or not a preliminary injunction should issue. There still must be a balancing of the equities as well as a determination of whether the over-all public interest is best served by granting or denying preliminary injunctive relief.

Before undertaking to balance the equities in this case, it should be noted that in Lathan v. Volpe, 455 F.2d 1111, 1116 (9th Cir. 1971), it was held that there need be no balancing of equities when a preliminary injunction is sought under NEPA. The court cited United States v. San Francisco, 310 U.S. 16, 30-31 (1940), as authority for the proposition that equities need not be balanced. The case at bar is not governed by either of these cases. Both contained elements, not present here, which made balancing of the equities inappropriate.

In United States v. San Francisco, supra, the Supreme Court rejected the defendant's argument that its conduct should not be enjoined, even if it violated federal law, because the equities favored defendant. In Lathan v. Volpe, supra, the defendants admitted to certain statutory duties, but contended that compliance was not required until a later date. Defendants in this case nowhere admit, for purposes of argument or otherwise, that an EIS is required now or hereafter.

In Lathan v. Volpe, supra, 455 F.2d at 1120, the Court states that "[n]o irreparable injury will result to defendants from granting the injunction. . . ." In the case at hand, all defendants claim that they will suffer irreparable injury if any injunction is granted.

The Court concludes that, there, as here, both sides present substantial claims of irreparable injury and defendants' statutory duty is far from clear, it is appropriate to balance the equities in a NEPA case.

Nothing in the NEPA, its legislative history, or the cases indicates [3 ELR 20866] that the Court is to be thus restricted from exercising its equity powers to fashion a decree meeting the needs of the particular case before the Court. Environmental Defense Fund v. Armstrong, 352 F. Supp. 50, 60 (N.D. Cal. 1972).

See also, Environmental Defense Fund v. Froehlke, 348 F. Supp. 338, 353-56 (W.D. Mo. 1972); Students Challenging Regulatory Agency Procedures v. United States, 346 F. Supp. 189, 201-02 (D.D.C. 1972).

Balancing the Equities

There now follows an assessment and balancing of the equities in this case. As will be seen, some of the questions are close and there is conflicting evidence on nearly all matters to be considered in the balancing process.

If the motion for a preliminary injunction is denied, the hardship claimed by plaintiff is the resultant loss of a wildlife habitat for certain shorebirds and waterfowl as well as an adverse effect on birdlife in adjacent marshland. (Corps' Environmental Assessment, 18).

In the immediate area outside the park site, there are 900 acres in the Palo Alto marshlands and 385 acres in Charleston Slough. (Letter of William McKaig, June 16, 1973, exh. 26 to Affidavit of J. L. Lammie, August 14, 1973). However, there is conflicting evidence as to whether or not the birds displaced from Casey Slough will relocate in these areas. There is evidence suggesting that Casey Slough is on a "down" cycle but there is substantial contrary evidence indicating that the slough is a viable wildlige habitat. (Affidavit of Dr. Henry Weston, August 6, 1973; Affidavit of Dr. Thomas Harvey, August 6, 1973; Affidavit of Nancy Holmes, June 6, 1973; Affidavit of Ruth Troetschler, August 6, 1973; Affidavit of Dr. Irene Brown, August 3, 1973).

The City of Mountain View has developed a wildlife mitigation plan with the assistanice of state and federal agencies, including the California Fish and Game Department and the Department of the Interior. (Affidavit of J.L. Lammie, August 14, 1973, p. 3). The Corps' permit was made conditional on the establishment of a 50-acre mitigation area, and numerous state and federal agencies with environmental responsibilities approved the permit so granted. (Affidavit of J.L. Lammie, August 14, 1973, pp. 3-4). Plaintiff contends, however, that the mitigation area is not equivalent compensation for the loss of Casey Slough.(Affidavit of Dr. Irene Brown, August 3, 1973, p. 2; Affidavit of Nancy Holmes, June 6, 1973, p. 2).

The loss of Casey Slough is outweighed by the probability that San Francisco will be without a refuse disposal site in mid-winter, 1974 and by the consequences of the lack of such a site.

While not determinative, note should be taken of additional hardships on the defendants if a preliminary injunction is granted. They have relevance in balancing the equities. There is evidence indicating that a delay of two weeks in the filling of Casey Slough would cost approximately $100,000 in extra labor and equipment, presuming they are available, to insure that the garbage cells are prepared in time to receive garbage. As the delay grows longer, the costs rise proportionately, as does the possibility that the cells could not be readied in time at any cost. (Affidavit of Wayne D. Trewhitt III, August 7, 1973, p. 3).

If the preliminary injunction were granted and if it should prove feasible to place the excavated earth in areas other than Casey Slough, the cost of operations would rise appreciably. As the distance between the earth storage area and the excavation site increases, so does the haul-time and haul-cost. If a bridge must be built across a creek at the park site to accommodate large earth movers, there would be still additional expenses. In fact, probably any of plaintiff's suggested alternatives would prolong operations, increase costs, and require extensive contract revisions. (Affidavit of Wayne D. Trewhitt III, August 7, 1973, pp. 3-4; Supplemental Affidavit of Wayne D. Trewhitt III, August 14, 1973, pp. 6-12). There is also evidence that Mountain View and the private contractor operating the disposal site would not proceed further with landfill operations until the financial impact of any modifications of the park plan or disposal operation could be evaluated. (Affidavit of S. M. Tatarian, August 14, 1973, pp. 5-6).

The use of alternative areas at the park site, especially that area intended for a golf course, for placement of the excavated fill would raise potential problems concerning the financing of the park. The Mountain View Shoreline Regional Park Community was formed for the purpose of financing the park. The Community issued bonds in the principal amount of $1,950,000 secured by a lease to the City of Mountain View of the area planned for the golf course. The stockpiling of dirt on the leased area is inconsistent with the development of that property as a municipal golf course. It could therefore form the basis for a claim that the City of Mountain View is released from its obligation to pay rent, which in turn, would endanger the security of the bonds. (Affidavit of Kenneth I. Jones, August 23, 1973).

After balancing the potential hardships to plaintiff and to defendants, the Court concludes that the balance favors defendants.

Public Interest

On the issue of the public interest, the evidence preponderates against issuance of a preliminary injunction. The restraint sought by plaintiff, if granted, would endanger the City of San Francisco's capacity to dispose of its refuse in a sanitary manner and thus would concomitantly endanger public health in the Bay Area. Granting the injunction would also entail substantial delay in the implementation of the park plan in the Casey Slough area. These dual consequences are themselves environmental in nature with significant impact on large numbers of residents throughout the areas involved. They overbalance the interests of that relatively small segment of the public, represented by plaintiff, who wish to preserve Casey Slough in its natural state. The scales are further tipped against the granting of a preliminary injunction by the fact that it is not certain that the feared loss of wildlife will occur if the filling of Casey Slough goes forward under the permit calling for the provision of a 50-acre wildlife mitigation area.

Other Contentions Made by Plaintiff

A further contention of plaintiff is that the permit from the Corps was void because, in granting it, the Corps exceeded its authority under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq. This rests on the assumption that under NEPA an EIS was required before a valid permit could be issued. The Court has rejected that assumption by ruling to the contrary.

Plaintiff finally contends that the permit is invalid because the applicant cities had not obtained a certification from the California Regional Water Quality Control Board that the park project met federal water quality standards. (33 U.S.C. § 1341 (a)(1)). This contention of plaintiff is not well taken.

The requirement was waived because the appropriate state agency (here, the California RWQCB) failed to act on the City of Mountain View's April 6, 1973 request for certification within a "reasonable" period of time. Section 1341 (a)(1) provides that the requirement "shall" be waived if the agency fails to act on a request within a "reasonable" period, further defined by Corps Regulation (i)(2)(b) to be three months.38 Fed. Reg. at p. 12225 (May 10, 1073). On July 23, 1973 — some three and one-half months after the request was made — it was "acknowledged" by RWQCB but not acted upon. (Affidavit of Roger B. James, Chief of Operations Division, California RWQCB, August 19, 1973, at p. 4). There is further evidence of waiver. On August 27, 1970, the RWQCB, by Resolution No. 70-67, granted a permit to the City of Mountain View and the two construction companies authorizing the use ofthe sanitary landfill method at the park site. In March, 1973, Col. Lammie contacted RWQCB officials and inquired whether that permit, which was still in effect, would serve as a certification in lieu of a formal one. He received no objection from RWQCB to such an interpretation of the permit. (affidavit of J.L. Lammie, August 21, 1973, at pp. 2-3).

ORDER

The foregoing constitutes the Court's Findings of Fact and Conclusions of Law. Based upon them,

IT IS HEREBY ORDERED AS FOLLOWS:

1. The motion for a preliminary injunction is denied;

2. The temporary restraining order is dissolved;

3. The Court expressly reserves jurisdiction to decide any motion by any party to compel implementation of the fifty (50) acre wildlife mitigation plan hereinabove described, said plan being a condition precedent to the issuance of the permit of August 1, 1973.

1. The applicable CEQ Guidelines are published at 36 Fed. Reg. pp. 7724-29 (April 23, 1971). While only advisory in character, they are entitled to substantial weight because the CEQ has the special responsibility "to develop and recommend . . . national policies to foster and promote the improvement of environmental quality" (42 U.S.C. § 4344(4)). Cf. Greene County Planning Board v. Federal Power Comm'n, 455 F.2d 412, 421 (2d Cir. 1972).

2. When "actions" occur both before and after NEPA in an "ongoing" project, a court should review the pre-NEPA action, as well as the post-NEPA one, to determine whether each is "major" and "federal" in nature. See San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025 (9th Cir. 1973).

3. The evidence supporting the Corps' determination may be summarized as follows:

1. The proposed 50-acre wildlife mitigation area will adequately compensate for the filling of Casey Slough, both in providing a new habitat for the variety of birds that nest there, and in replacing the lost marshland. E.g., Environmental Assessment at pp. 7-9, 13-16.

2. The Casey Slough is on a "down cycle", i.e., its viability as a brackish marsh is on the wane. The past year was unusually rainy, thus abnormally augmenting the supportive aspects of Casey Slough. In the next few years the slough will probably dry up and no longer support wildlife.

3. Letters by William McKaig, Chairman of the Fish and Game Commission of Santa Clara County, to Col. Lammie (dated July 2, 1973) and to Congressman Paul M. McCloskey, Jr. (dated June 16, 1973), state that Casey Slough is drained by polluted by polluted water and has been a breeding ground for mosquitoes; that it is not a "wetland" (within the meaning of the Corps Regulations) and does not support extensive birdlife; and that the 385-acre Charleston Slough and the 400-acre Leslie Salt Pond #1, which are both wildlife habitats and are near to Casey Slough, will remain intact under the park plan.

4. In the course of the permit process, the Corps sought the expertise of various governmental agencies at all levels. In response, Richard O'Connell, Director of the Enforcement Division of the U.S. Environmental Protection Agency, stated in a letter dated December 13, 1972:

. . . We have consulted with the Santa Clara County Department of Public Health and with the San Francisco Bay Regional Water Quality Control Board, concerning this project. Those agencies advise that, in their opinion, this has been a model project with no known problems. We are likewise unaware of any significant environmental problems resulting from the project. We therefore do not object to the issuance of the permit. Exh. 7 to Affidavit of J. L. Lammie, District Engineer, Army Corps of Engineers, August 14, 1973.

Other agencies consulted, including those listed earlier, approved the grant of a permit in general terms.

5. At the Corps' public meeding on July 10, 1973, various statements by state and federal legislators, approving the issuance of the permit were read into the record. Congressman McCloskey referred specifically to the requirements of NEPA, stating that NEPA has been "duty complied with". Reporter's Transcript of Public Meeting of July 10, 1973, at p. 28, lines 23-24.

6. The filling of Casey Slough would involve a loss of only 90 acres of marshland out of a total of 48,000 acres of marshland in the entire San Francisco Bay Area.

7. Casey Slough is not a "wetland" within the meaning of Corps' Regulation (g)(3)(38 Fed. Reg. 12220) (May 10, 1973)), because it is diked off from the Bay and the only source of water for the slough is occasional rains.

8. The agencies consulted by the Corps during the permit process approved of the 50-acre mitigation plan. The Corps issued its Environmental Assessment on June 28, 1973, which found, tentatively, that granting the permit would not trigger a significant environmental impact; none of the agencies consulted objected to this finding, nor did they object to the granting of a permit conditioned on the implementation of the proposed mitigation plan.

The evidence on the other side may be summarized as follows:

1. Casey Slough is a rare and fragile type of marsh, one which has turned brackish as a result of fresh water flowing into it and subsequently evaporating. It combines saltwater and freshwater eco-systems, making it a particularly valuable wildlife habitat.

2. Casey Slough is one of only three brackish upland marshes in the entire southern part of the Bay and supports a wide variety of shorebirds, waterfowl, and migratory birds.

3. The filling of Casey Slough would eliminate a habitat for particular rare and endangered species; California Clapper rail, the California least tern, and the saltmarsh harvest mouse.

4. Casey Slough is adjacent to the Charleston Slough and Leslie Salt Pond #1, which are two of the most important wildlife habitats in the southern Bay Area. The three areas constitute an interrelated system. The destruction of Casey Slough will have a damaging effect on these other two habitats.

5. Casey Slough is an "important wetland" within the meaning of Corps' Regulation (g)(3), supra, because it is periodically inundated from two riverine sources by storm waters which enter during periods of runoff, and it serves important wildlife purposes and biological functions.

6. The proposed 50-acre wildlife mitigation area, which is comprised of 30 acres near the Stevens Creek Slough and 20 acres near the Mountain View Slough, is inadequate to compensate for the loss of Casey Slough.

7. The filling of the Casey Slough was "highly controversial" within the meaning of CEQ Guideline 5(b) (36 Fed. Reg. 7724) (April 23, 1971)). This is evidenced by the voluminous protesting correspondence to defendant Lammie and other officials, by the numerous and lengthy meetings between Mountain View officials and conservationists, and by the many expressions in opposition to the granting of a permit at the hearing of July 10, 1973 (e.g., RT at pp. 40, 42, 44-46, 48-53, 67-71, 77-78, 87-88).

8. Members of plaintiff Committee and many others frequently visit the Casey Slough to enjoy and watch the birdlife, to learn about plant and wildlife generally (schoolteachers take classes there), and to experience the feeling of open space.