Ohio ex rel. Brown v. Callway

No. 8892 (S.D. Ohio August 24, 1973)

A preliminary injunction is issued prohibiting the Corps of Engineers from undertaking further environment-altering activities on two dam projects until an adequate environmental impact statement is filed. The court finds that two previously submitted impact statements do not meet the requirements of NEPA, and that there is therefore sufficient probability of success on the merits for the plaintiff to obtain an injunction. The court rules, however, that performance by private companies of three contracts for construction of an office building and the two dams and spillways may proceed, since the land involved has already been cleared, and performance will entail no further direct environmental damage. The court also notes that its ruling does not affect ongoing land-acquisition litigation concerning the two projects between the government and private land owners.

Counsel of Plaintiff
William J. Brown Attorney General
71 E. State Street
Columbus, Ohio 43215

William S. Fine
361 E. Broad Street
Columbus, Ohio 43215

counsel for Defendants
William A. Milliken U.S. Attorney
722 U.S. Courthouse
Cincinnati, Ohio 45202

Wallace H. Johnson Asst. Attorney General
Raymond Zagone
Irwin L. Schroeder
Department of Justice
Washington, D.C. 20530

[3 ELR 20892]

Rubin, J.

This matter is before the Court upon plaintiff's motion for a preliminary injunction. Comprehensive memoranda, briefs, affidavits, and exhibits have been filed; oral arguments have been heard and testimony received. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.

[3 ELR 20893]

FINDINGS OF FACT

1. As part of the Flood Control Act of June 28, 1938, 52 Stat. 1215 (33 U.S.C. § 701 et seq.), seventy-four reservoirs were authorized for the Ohio Valley. These reservoirs were constructed at various times and on various rivers. Included among such reservoirs are those to be located on Caesar's Creek and the East Fork, each a tributary of the Little Miami River, itself a tributary of the Ohio River.Funding for the above projects commenced in 1962 with a Congressional appropriation of approximately twelve thousand dollars ($12,000.00) for each. These appropriations have increased year by year in approximately the same amount. Significant amounts of appropriation began in 1969 with $1,550,000.00 appropriated for Caesar's Creek and $1,600,000.00 appropriated for East Fork. During fiscal 1973, $5,800,000.00 was appropriated for Caesar's Creek and $4,200,000.00 for East Fork. For fiscal 1974, $8,000,000.00 has been budgeted for Caesar's Creek and $2,600,000.00 for East Fork.¹

2. Each project is intended to help control floods, provide a more desirable water supply, improve water quality, and create new recreational features. Land acquisition began in 1967 and each will require approximately 11,000 acres of land. As of June 30, 1973, 88.7% of the necessary land had been acquired for East Fork and 77.7% for Caesar's Creek.²

3. Three contracts are presently in force for construction at these two projects.³ For Caesar's Creek, a contract for the construction of outlet works, dam, and spillway, No. DACW 27-72-C-0086 in the face amount of $7,853,737.55 was awarded to Butt & Head, Inc., 3858 New Germany Road, Dayton, Ohio, on March 1, 1972.

For the same project, contract No. DACW 27-73-C-0022 was entered into on August 31, 1972, for the construction of an office and shop building. This contract was awarded to the Small Business Administration, Midwest Regional Office, and was subcontracted in full to Francis & Washington, Inc., 125 South Infirmary Road, Dayton, Ohio. This contract is in the face amount of $216,551.45.

For the East Fork Lake project, contract No. DACW 27-73-C-0068 was entered into on December 29, 1972, with S.J. Groves & Sons Company, Minneapolis, Minnesota, for the construction of a dam and spillway in the face amount of $12,257,839.30.

4. On January 1, 1970, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1970), became effective. In accordance with § 102 of NEPA, 42 U.S.C. § 4332 (1970), an Environmental Impact Statement (EIS) was filed for the east Fork project on February 25, 1971, and an Environmental Impact Statement for Caesar's Creek was filed on April 16, 1971. There is also an undated document entitled "Draft Environmental Statement" for each project consisting of three pages. In addition, on August 11, 1972, a supplement to the East Fork EIS was filed. These five documents comprise the sole evidence of compliance with § 102 of NEPA.

Each project is intended to convert a free-flowing stream into an impounding lake behind a dam and spillway. Each will involve the removal of trees and groundcover, and the excavation of topsoil and subsoil from approximately 11,000 acres of land.

Recreational opportunities inherent in a free-flowing stream will be lost and those incident to a stillwater lake will be gained. Biosystems that flourish in the former environment will be replaced by those that flourish in a stillwater lake.

Each of the projects will contribute water to the Little Miami River, particularly during periods of low water in summer. No evidence of excessive adverse environmental effects appears in either Environmental Impact Statement. No evidence has been presented to the Court as to environmental advantages of flow regulation of the Little Miami River.

5. The situation in August of 1973 as to each of these projects is as follows:

(a) Environmental Impact Statements have been filed which are admittedly below 1973 standards for such statements.

(b) Environmental damage incident to the contracts, i.e., site clearing, excavation to bedrock, construction of service roadways, has already occurred. No further significant environmental damage from such contracts appears likely. Future contracts will have substantial environmental impact.

(c) Only the months of August, September and October remain during which outdoor construction may feasibly continue in the present construction season.

OPINION

There are four customary conditions precedent to the granting of a preliminary injunction. The plaintiff must establish that a substantial question is at issue; that there is probability of success on the merits; that a balancing of injuries to the parties requires preliminary relief; and that the public interest would be served by such preliminary relief. Environmental Defense Fund v. Tennessee Valley Authority, 339 F. Supp. 806 (E.D. Tenn. 1972), aff'd, 468 F.2d 1164 (6th Cir. 1972); Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), aff'd sub nom., Sierra Club v. Morton, 405 U.S. 727 (1972), Garlock, Inc. v. United Seal, Inc., 404 F.2d 256 (6th Cir. 1968).

There is no doubt that this is a matter of substantial importance to all the parties involved. Since defendants have conceded that complete Environmental Impact Statements have not been filed, there is probability of success for plaintiff upon that limited issue.

Implicit in any construction project of this magnitude may be substantial and irreparable injury to the public at large. Without seeking to catalogue the damages that might result, the Court observes merely that flooding thousands of acres of land and conversion of free-flowing streams into impounding reservoirs are, for all practical purposes, irreversible. However, while plaintiff may be successful in the limited effort to halt these projects pending the filing of a more comprehensive Environmental Impact Statement, it is not equally clear that plaintiff will enjoy ultimate success in terms of possible alteration or abandonment of these two projects. For the purposes of a preliminary injunction, however, the plaintiff has demonstrated a sufficient probability of success on the merits.

In considering the relative equities present in the case at bar, the Court observes that three contractors, all innocent parties to this controversy, in good faith bid upon these contracts and subsequently committed substantial funds, material, equipment, and time to the proper completion of these contracts. Since it appears that their continuing activity will not significantly damage or otherwise affect the environment, equitable considerations suggest that this Court avoid penalizing these contractors. Under similar circumstances, Courts have permitted a portion of project contracts to be completed. Environmental Defense Fund v. Tennessee Valley Authority, supra, (road surfacing, map making, and reporting activities were allowed to proceed; Conservation Council of North Carolina v. Froehlke, 473 F.2d 665 (4th Cir. 1973) (dam construction and building on cleared land allowed); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972) (remand to the District Court for decision if contracts could go ahead in face of general injunction); Environmental Defense Fund v. Armstrong, 356 F. Supp. 131 (N.D. Calif. 1973) (planning, ordering and assembling of materials allowed to continue).

III

CONCLUSIONS OF LAW

This Court has jurisdiction in accordance with the National [3 ELR 20894] Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970).

There is enjoined upon all Federal agencies, including the United States Corps of Engineers, the obligation of complying with § 102 of the National Environmental Policy Act of 1969 by the preparation and submission of an adequate Environmental Impact Statement. Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971).

The statements filed as to both Caesar's Creek Lake project and the East Fort Lake project do not fully comply with the National Environmental Policy Act and therefore, the Court must fashion appropriate relief.

ORDER

A preliminary injunction is hereby issued enjoining defendants from executing additional contracts on either of said projects; from clearcutting trees, from removal of brush and groundcover, from stripping away and destruction of topsoil, from relocating or closing roads, and from any other construction activity which would alter the natural environment of the project area. Completion, however, of those items specifically listed in the construction contracts referred to in the Findings of Fact may proceed at this time.

There are presently in the United States District Court for the Southern District of Ohio, Western Division, land appropriation cases wherein the United States of America is seeking to appropriate property for both of these projects. While the Court has not been so specifically advised, there may be transactions in progress in the various stages of negotiation wherein the United States is seeking to acquire property for these projects. Where such negotiations may be ultimately unsuccessful, the United States Attorney for the Southern District of Ohio may be contemplating land appropriations cases. Nothing herein stated shall be construed as a limitation upon the above pending litigation, or efforts to acquire real estate for these projects at whatever stage such proceedings may be.

Except as noted above, further contracts for the advancement of these projects may not be entered into by the United States of America without prior approval of this Court.

This matter is hereby continued pending the filing by defendants of a complete and adequate Environmental Impact Statement in accordance with § 102 of NEPA.

IT IS SO ORDERED.

1. These appropriations do not relieve any Federal agencies from their obligations under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970), under a theory of implied Congressional exemption or a final Congressional approval of any Environmental Impact Statement then in existence. See Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 353-55 (8th Cir. 1972); Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 785 (D.C. Cir. 1971); Rule XXI of the House of Representatives; S.Rep. No. 91-118, 91st Cong., 2d Sess. (1970).

2. Defendant's Memorandum at 5.

3. According to Defendant's Memorandum at 6, there are three contracts which have already been let for both the East Fork and Caesar's Creek Lake project. The defendant has submitted as evidence copies of such contracts. Defendants have also submitted an Affidavit "A" of Col. Charles J. Fiala, Colonel of the Corps of Engineers, assigned as District Engineer of the Louisville District, in which Col. Fiala on Exhibit "9" indicates that other contracts have been let. In oral argument on August 14, 1973, the Government and the United States Corps of Engineers assured this Court that the three contracts to which they referred on page 6 of their Memorandum and copies of which they have submitted to this Court as evidence were the only contracts in existence. This Court accepts as true the representations of the defendant made in their Memorandum and at oral argument.