Canal Authority of Florida v. Callaway

No. 71-92-Civ-J (M.D. Fla. January 31, 1974)

The termination of the Cross-Florida Barge Canal, ordered by President Nixon in 1971, is held to violate the separation of powers doctrine and NEPA. The Forest Service's environmental impact statement, which recommended the partial draining of an artificial lake that is part of the project, was invalid, as it was premised on the President's unlawful cancellation order, and it also failed to deal with the project as a whole. The President's refusal to spend $150,0000 appropriated by Congress for a full environmental review by the Corps of Engineers was an illegal impoundment of funds. Although expert witnesses for the Government urged that unless the partial draining of the lake takes place, trees crucial to the area's ecology will die, the court finds that the lake has environmental value of its own and rules that an impact statement must be filed before the water level may be lowered. A preliminary injunction, issued at the request of canal proponents to prevent the government from lowering the water level, is made permanent, although the interlocutory order granting the preliminary injunction is currently on appeal before the Fifth Circuit Court of Appeals. The Office of Management and Budget is ordered to release the impounded funds, for completion of an EIS within six months. Until such an impact statement is filed, the Government may neither add to nor dismantle existing portions of the project. For the opinion of the Fifth Circuit Court of Appeals, holding that the district court applied incorrect standards in granting the preliminary injunction, see 4 ELR 20164.

Counsel for Plaintiff Canal Authority of the State of Florida
Ralph E. Elliott, Jr.
Frank C. Decker
Decker, Elliott & Kaler
Suite 1710, American Heritage Life Building
11 East Forsyth Street
Jacksonville, Florida 32202

John H. Gullett
1250 Connecticut Avenue, N.W.
Washington, D.C. 20036

Willard Ayres
Greene, Ayres, Swigert, Cluster & Tucker
103 N.E. 1st Avenue
Ocala, Florida 32670

Counsel for Plaintiff Environmental Defense Fund, Inc.
Jon T. Brown
Wallace L. Duncan
Environmental Defense Fund, Inc.
1525 18th Street, N.W.
Washington, D.C. 20036

Edward Lee Rogers General Counsel
Environmental Defense Fund, Inc.
162 Old Town Road
East Setaucket, New York 11733

Counsel for Federal Defendants
Wallace H. Johnson Asst. Attorney General
Jacques B. Gelin
Edmund B. Clark
Lands & Natural Resources Division
Department of Justice
Washington, D.C. 20530

John L. Briggs U.S. Attorney
John D. Roberts Asst. U.S. Attorney
U.S. Courthouse
311 W. Monroe Street
Jacksonville, Florida 32202

Counsel for Plaintiff Jacksonville Port Authority
David U. Tumin Asst. City Counsel
David U. Livermore, Jr. Asst. City Counsel
City Hall
220 E. Bay Street
Jacksonville, Florida 32202

Counsel for Plaintiff Cross-Florida Canal Association
Tracy Danese
Grissett, Humpheries & Danese
210 First Bank and Trust Building
231 East Forsyth Street
Jacksonville, Florida 32202

Counsel for Individual Plaintiffs
William L. Eagan
Arnold, Matheny & Eagan
857 North Orange Avenue
Orlando, Florida 32802

Ronald E. Clark
523 St. Johns Avenue
Palatka, Florida 32077.

[4 ELR 20260]

Johnsen, J.

These five cases have been the subject of a consolidated trial on the merits. One of them (Environmental Defense Fund [EDF] suit, No. 71-652-Civ-J) had earlier been transferred from the District of Columbia district under 28 U.S.C. § 1407 for consolidated pretrial proceedings here and was later by agreement subjected to a general transfer under § 1404(a) for full venue purposes in this district.

Nature and history of the situation.

The cases consist of environmental litigation relating to the Cross-Florida Barge Canal generally, but most particularly to the portions of the Oklawaha River channel and flood plain which have been included in the project. One such segment had prior to the litigation been incorporated in a reservoir structure (Rodman Reservoir or Pool), which was completed in 1968 and constituted one of the principal components in the planned canal system. A further segment had been intended to be incorporated in another reservoir structure (Eureka Reservoir) as a next major phase in the construction, with the dam and lock therefor having essentially been completed.

The Barge Canal was a public works project authorized to be constructed by the Army Corps of Engineers (COE) under Public Law 77-675, enacted in 1942, but with no funds being appropriated therefor at the time because of war time priorities. Such an appropriation was first made in 1963, and work on the project was accordingly commenced in 1964 and was proceeded with thereafter under annual appropriations until January 19, 1971.

On that date, the President of the United States, through a White House press release, announced that on recommendation of the Council on Environmental Quality (CEQ) [42 USC §§ 4341-4346], "I am today ordering a halt to further construction of the Cross Florida Barge Canal to prevent potentially serious environmental damages . . .", with the statement making specific reference to the Oklawaha River, which it characterized as a "national treasure" that "would be destroyed by construction of the Canal". The statement further contained a directive that "I am asking the Secretary of the Army to work with the Council on Environmental Quality in developing recommendations for the future of the area." The only written form the order has had is the press statement.¹

The purpose of the authorizing legislation had been to create a waterway across the northen part of Florida. This in the Canal's confluence with the St. Johns River would enable cargo to be transported by barge between the Gulf of Mexico and the Atlantic Coast without having to be moved around the tip of the Florida peninsula. The Canal as designed was to have a length of approximately 107 miles. Embraced in this, as noted, were the portion which had been intended to be incorporated in the Eureka Reservoir, as well as a smaller segment extending from the Rodman Dam to the St. Johns River.²

Some 40 miles of the Oklawaha River's approximately 70-mile length, in its tributarial flow northward and then eastward into the St. Johns River from its source in a chain of lakes in the central peninsular highlands, thus were involved in the canal project.

While the Federal Defendants in the EDF suit (the only one then pending) had up to the time of the President's order been opposed to any termination or halting of the Canal project and had resisted the motion in that suit for a preliminary injunction (see fn. 1) they became stripped of their previous position on that question by the President's order and the conformance necessary on their part thereto in their Executive Branch constituency. In the posture in which the EDF suit thus was left, the Canal Authority of the State of Florida (the State agency charged with the responsibility of acquiring and making available to the United States the land titles and easements necessary for the Canal right of way) intervened in the case for the purpose of preserving the adversary character thereof and safeguarding against the possibility of any prejudicing or complicating actions being unchallengedly taken therein.

Additionally, the Canal Authority instituted a separate action in this district (Canal Authority case, No. 71-92-Civ-J) for declaratory and injunctive relief in respect to the President's order on the threatened actions of the Federal Defendants in conformance thereto. This was followed by the institution of the other three suits similarly seeking declaratory and injunctive relief: the Canal Association case, No. 71-486-Civ-J; the Miller case, No. 71-489-Civ-J; and the Perko case, No. 71-26-Civ-Oc. Intervention was permitted to be made in the Canal Authority case by the Jacksonville Port Authority; in the Canal Association case by the Board of Commissioners of Marion County; and in the Miller case by the Board of Commissioners of Putnam County.³

The Federal Defendants had after the President's order indicated an intention to draw down the water of the completed Rodman [4 ELR 20261] Pool (to which Congress had a short time before given the official name of Lake Ocklawaha by Pub. Law 91-637) from 18 feet above mean sea level (m.s.l.) to 13 feet. Such a drawdown would, the Canal proponents contended, alter the status quo which then existed as to the completed Pool or Lake; would change the environmental and ecological conditions which had been created by the construction and the filling of the Pool, not merely as a Canal component but in the values which had come to exist from its substantial and increasing public use as a recreational facility; and would also impinge upon the benefits to owners of the lands adjacent to it in the relation which these elements bore to the takings, sales and grants of titles and easements that had been involved in the creation of the Pool.

The lowering of the water level of the Pool was contended by the Federal Defendants to be intended, while the President's directive was being carried out as it related to what should be done to the Pool with the Canal terminated, to save some trees in the upper regions of the Pool, which had not been cleared or crushed down as had the great majority of them when the Reservoir was constructed. The comparatively smaller number thus remaining had designedly been left to provide a favorable fish habitat for enhancement of the Pool's use and value as a recreational facility.

The Canal proponents have urged that the Rodman Pool stood as a symbolization in the public mind of the Canal project itself; that the drawdown would therefore primarily serve and was intended as a tactical measure to cause the public to believe and resignedly accept as a fact that the doom of the Canal had actually occurred from the President's order; that it would be inherently unfair to allow the President's order to be thus tactically employed to confuse the public in relation to the status of the Canal situation because the order as an attempted termination of the Canal project was legally invalid in being violative of the separation of powers doctrine; and that beyond this, if the President could have had any power whatsoever to touch the Canal project, any such intended touching that would significantly affect its created environmental conditions and other values would, as a matter of public policy established by the provisions and requirements of NEPA, 42 U.S.C. § 4321 et seq. have had to be disclosed and an environmental impact statement (EIS) prepared by an agency or official appropriate under NEPA to perform the task, in order to provide the public with such information as would entitle it to make a decisional judgment of its own on the situation.

In the circumstances initially appearing, a preliminary injunction against the threatened drawdown was granted by Judge Scott of this district on an application made in the Canal Association case. The injunction was later extended by me to all of the case, on an independent hearing held in relation to the suits after their consolidation for pretrial purposes. This injunctive aspect will be further dealt with below in the relation thereof to the general determination which is being made herein as to the whole situation.

The President's order had, as noted, contained a directive that the Secretary of the Army and CEQ should develop recommendations "for the future of the area." No such recommendations were, however, forthcoming until almost a year and a half after the President's order, when a report prepared by Dr. Lee Talbot, Senior Scientist of CEQ, and Robert Teeters, Chief of Policy Programs, Civil Works Directorate, Office of the Chief of Engineers, as the delegates of CEQ and the Secretary of the Army, respectively, was submitted to their principals, approved by the latter, and given public release by CEQ on May 18, 1972. The report characterized the President's order as having "terminated construction of the Cross-Florida Barge Canal" and the contents of the report as "presenting the recommendations requested by the President for the Oklawaha River basin area of the Cross-Florida Barge Canal Project." No other portion of the Canal project was dealt with in the report.

As here material, the recommendations of CEQ and the Secretary of the Army were in substance: (1) that the portions of the Oklawaha River incorporated in the Canal project should be designated as a study river for potential inclusion in the National Wild and Scenic River System, 16 U.S.C. § 1271 et seq. with an immediate drawdown to be made of the water level of the reservoir pending such potential designation and the study results thereof in order to try to obtain a maximum survival of the trees remaining in the reservoir; (2) that the proclamation boundary of the Ocala National Forest, which then reached to the middle of the Oklawaha River channel as here involved, shoul be administratively extended to take in fully the portions of the Oklawaha basin included in the Canal project; and (3) that the lands and easements for the Canal right of way held by the Canal Authority should be taken over by the Federal Government in "appropriate acquisition consistent with potential designation as a wild and scenic river and proper consideration of the equities."

These recommendations coincided with proposals which had been made by the Forest Service in a draft "Plan for Managing the Ocala National Forest," released to the public in May, 1971, and in the more formal and detailed "Ocala Plan" adopted by the Forest Service in April, 1972. Release of the CEQ and Secretary of the Army's report followed the release of the Forest Service's adopted Ocala Plan by about a month, with a statement in the report that "Pursuant to the National Environmental Policy Act of 1969, a draft Environmental Impact Statement has been prepared by the Forest Service and is available today." The Forest Service's draft EIS had been filed with CEQ and was given release on May 26, 1972. A final EIS by the Forest Service was filed with CEQ approximately eight months later, on January 16, 1973.

Subsequent to the release of the Forest Service's draft EIS and the lodging of copies thereof with both Houses of Congress, Congress appropriated the sum of $150,000 for the purpose, as expressed in the Committee Report (H.R. No. 1151, p. 23, June 1972, to accompany H.R. No. 15586) of having a study and evaluation made of the whole Canal project by the Corps of Engineers and an EIS submitted thereon so that Congress could have the means for appropriately determining what action as to the whole Canal situation should be taken by it, and not have the matter brought before it on merely a part of the project, as the Forest Service's draft EIS indicated was intended to be done.

The $150,000 appropriated funds were, however, refused release by the Executive Branch and were subjected to impoundment by the Director of the Office of Management and Budget.Thus no such EIS as intended by the Congressional appropriation has been permitted by the Executive Branch to be prepared and submitted by the Corps of Engineers in study, evaluation and proposal as to all of the Canal project, but Congress has instead been presented only with a final EIS prepared by the Forest Service dealing with only the Oklawaha River portion of the project and leaving the rest of the project, both in its completed and uncompleted parts, in limbo.

II.

Issues involved.

On these aspects and some further elements from the trial, the principal questions in the litigation strip down to the following:

(1) Did the President's order of January 19, 1971, constitute an attempted executive termination of the Barge Canal project?

(2) If so, did the President have the power to put an end to the Canal project by executive fiat?

(3) If not, (a) could the President's order nevertheless be allowed to have the effect of halting further construction of the Canal until there had been a study, evaluation, and an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) done by some agency or official appropriate under the Act to carry out the task; and (b) if the order were allowed to have that effect, could this be permitted to extend in incidence to an altering of the status quo or any significant conditions thereof which had come to exist from the construction work done (particularly here the status of the completed Rodman Pool, the environmental conditions created thereby and the recreational uses and benefits existing therefrom)?

(4) Could the Forest Service properly be allowed under NEPA to make proposals for action and prepare an EIS on the Barge Canal situation in the status thereof as a Corps of Engineer's project?

(5) If so, was the Forest Service's final EIS, here legally defective in being premised on and having dealt with the Canal situation on the basis that the President's order had validly put an end to the project?

[4 ELR 20262]

(6) Whether or not the Forest Service's EIS was thus defective, would it otherwise be inadequate under NEPA because of its failure to deal with the whole Canal project; and also in not indicating solutions to the problems which its proposals would create, such, for example, as the drainage problem that would come to exist in relation to the Four Rivers Basin?

(7) If the Forest Service's EIS might otherwise have been adequate, would it be rendered insufficient in the situation because of the $150,000 appropriation made by Congress to have a study, evaluation and an EIS prepared by the Corps of Engineers on the whole Canal project and with the expression contained in the Congressional Committee Report accompanying the appropriation measure, on what the study and EIS dealing with the Canal matter should include?

(8) Should the Director of the Office of Management and Budget be required in the circumstances to release and make available the $150,000 funds to enable the desire of Congress to be carried out? If so, ought the status quo and the conditions of the Rodman Pool as presently existing (which had been established before NEPA was enacted) be kept from being materially altered until the EIS desired by Congress had been provided? Particularly in this connection was the evidence such as to require a finding and conclusion that the lowering of the water level of the Rodman Pool from 18 feet to 13 feet for an unlimited period would occasion only relatively insignificant and readily reversible changes and consequences to the Canal situation, so as not to be substantially prejudicial if the decision of Congress should ultimately be that The Rodman Pool was to be allowed to remain and be maintained, whether as an element in continuation of the Canal in its original or a modified form, or as a separate recreational facility?

(9) Finally, as related to all this, is the presently existing injunction against lowering the Rodman Pool entitled to be continued and made permanent until Congress has thus decided the fate of the whole Barge Canal project, and/or the fate of the Rodman Pool as an independent recreational facility, or are the aspects involved in any event such as compellingly to require in the public interest that the injunction now be modified to allow the drawdown sought regardless of what the ultimate decision of Congress might be as to the future of the project?

III.

The Federal Defendants and the plaintiffs in the EDF suit stood in alignment at the trial on the one side of the foregoing questions and the plaintiffs in the other four suits on the other side. Beyond these central questions, the EDF plaintiffs had asserted some additional claims as to the Canal situation which paradoxically both the Federal defendants and the Canal plaintiffs contended were without substantiality or were in any event moot. Also, the Perko suit had asserted a separate claim of adjacent property-owner and grantor rights to have the Rodman Pool maintained as a recreational facility, whether as a part of the Canal project or independently. These additional claims will be briefly referred to later, but discussion will first be made of the common questions set out above.

IV.

The President's order of January 19, 1971.

(1)

(1) The evidence clearly establishes that the President's order was intended as an executive termination of the Barge Canal project. The recommendation made by CEQ in its Memorandum to the President, on which the President's press statement indicated that his order was based, was for "termination of the Cross-Florida Barge Canal." The word "termination" was used twice in the Memorandum. More directly indicative, after White House Press Secretary Ziegler had made announcement and distribution of the President's order, he was asked by a member of the Press whether the directive therein for "developing recommendations for a future of the area" was meant "to leave open the possibility that some canal may go through there," to which he gave this answer: "No, it does not. It relates specifically to how the area should be used, but it does not relate to a canal in the future." Beyond this, Dr. Talbot, the official delegate of CEQ, and Mr. Teeters, the official delegate of the Secretary of Army, both frankly testified at the trial that in their designation to carry out the directive of developing recommendations, they were instructed by their principals that the question of any continuation of the canal was not an option which was open to their consideration.

Still further, Mr. Whitaker, the White House Deputy in environmental matters to Presidential Assistant John D. Ehrlichman, at a metting of Dr. Talbot, Mr. Teeters and others, held in relation to developing recommendations under the President's order, and attended by Mr. Whitaker as the White House representative, similarly stated that the Canal was to be treated as being ended. And finally, it is clear from the evidence that in the preparation of an EIS as to the situation, which the Forest Service had suggested that it be allowed to undertake and to which Dr. Talbot and Mr. Teeters and the representatives of the other departments and agencies present all assented, it was understood and accepted by all that the EIS was to proceed on the basis that the Canal project had been terminated.

(2)

I am unable to regard the President as having any general executive power to terminate whatever legislatively authorized public-works projects he chooses, even though he may believe that it would be in the public interest to have some particular project or projects put to an end. Nor am I able to rationalize any basis, on constitutional principle, or within democratic political philosophy, or from our national experience, that could in my opinion even arguably be contended to make the existence of such a general executive power desirable. Too much opportunity and possibility of purely political action and favor, or of other official arbitrariness, exists for the concept to be reconcilable with or at all tolerable under the protective design of our political system.

Or to put the situation here into specific context, the authorization and nature of the Canal project, the history underlying it, its sizeable scope, the amount of public funds, Federal and State, which have gone into it, the status quo and the environmental conditions which have been created as to it, the complexities possible of being involved from the takings, sales and grants of titles and easements which have occurred, and the $150,000 appropriation made by Congress subsequent to the President's order and after release of the Forest Service's draft EIS, for the express purpose of having the whole canal project environmentally and economically evaluated and brought before Congress by an EIS engaged in on that basis, seem to me inherently to demonstrate that such substantialities of legislative function, policy and prerogative are involved as to make the question of continuation, modification or termination of the Canal one that is within the separation of powers doctrine and to entitle Congress to demand that the provisions of NEPA be given application in the particular situation on the basis requested by it.

The general declaration of Mr. Justice Brandeis in his dissenting opinion in Myers v. United States, 272 U.S. 52, at 240, bears repetition here:

The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power.

The President's order of intended termination of the Barge Canal project must be held to be invalid.

(3)

But while the President's order could not constitute a termination of the Barge Canal project or entitle naked administrative actions to be engaged in on that basis which would materially affect significant environmental and other values that had previously been established, the order could still be allowed in my judgment to have the effect of halting further construction of the Canal while a proper study and evaluation and an EIS under NEPA were being made by an agency or an official appropriate under NEPA to carry out the task, as to the whole Canal situation. In fact, up to the time that the evidence at the trial established beyond question that the order was intended as an attempted termination, I had declared in a Memorandum and Order dated February 25, 1972, that until the contrary was proven, I would regard the order simply "to intend and to attempt to put the Barge Canal situation into the posture of [4 ELR 20263] being considered and dealt with under (NEPA)" and would treat the directive for developing recommendations for the future of the area "as constituting a call for an impact statement [EIS] and for recommendations based thereon" relating to the whole Canal situation.

I have no doubt that the President would have the power to take such a temporary action (unless Congress saw fit to direct some contrary action in the matter), where, as here, no EIS existed in the situation. Such a power would be inherent in the general responsibility of the President to enforce the laws of the United States (here NEPA) or alternatively would exist in the present situation from his right to engage in such action on the basis of the chain of command which extended up to him if the chose to exercise it, through the Corps of Engineers, through the Chief of Engineers and through the Secretary of the Army, over such incidents as any of them had a right to engage in in relation to the Canal situation (which they had here in respect to having an EIS prepared).

Here no official EIS under NEPA had ever previously been prepared because the enactment of NEPA had no occurred until after the construction of the Canal was underway. When some opposition to the Canal project asserted itself, particularly to the construction of the Eureka Reservoir, the Corps of Engineers began the preparation of an EIS which, however, the evidence showed had not reached such a stage or development as to constitute an adequate EIS in the situation at the time of the President's order. Upon the issuance of the President's order, the Jackson ville District Office of COE was directed from higher level in the chain of command existing as to it to discontinue the EIS and simply place in its files marked "Working Papers Only."

As indicated, I think the President properly could in the circumstances have called a temporary halt to further construction of the Canal for the purpose and for such period as would reasonably be necessary to have a study made and an EIS prepared under NEPA in relation to the whole situation.

Whether the EIS, which was prepared by the Forest Service, was one in which it was entitled to engage, and if so, whether it constituted in the circumstances an appropriate and sufficient one under NEPA in view of the course which it took, the matters with which it dealt, and the relationship thereof to the $150,000 special appropriation and the indication in connection therewith of the nature and the scope of the EIS which Congress desired in the particular situation will be considered followingly.

The right of the Forest Service to make proposals and prepare an EIS in relation to the Barge Canal project.

(4)

The Canal proponents contend that the Forest Service could not properly be allowed to make proposals and prepare an EIS in relation to the Barge Canal situation because of the Canal's status as an approved and ongoing Corps of Engineers project. I find and hold that this general contention is without merit.

First, the EIS here contained a proposal for legislation (authorization by Congress of a study of the parts of the Oklawaha River basin which had been included in the Canal project for potential designation as a wild and scenic river). The right of an agency or an official to make a proposal for legislation or to undertake to have a bill introduced into Congress covering the proposal is not a matter over which a court has any right of control. For a court to intrude itself into the question of the appropriateness of legislative proposals being made to Congress, whether by an administrative agency or by anyone else, and no matter what the subject matter thereof may be, would bring into play the separation of powers doctrine as between the Legislative Branch and the Judicial Branch.

In the orderly functioning of the Executive Branch, that Branch might inherently be entitled to regulate or control such actions as among the agencies and officials comprising its structures.But if it chooses to permit an agency or official under its structures to make a proposal for legislation, even as to a matter which primarily is within another agency's field (such as the proposal of the Forest Service here to affect the Barge Canal situation), this would not entitle the judiciary, in the absence of some statutory authorization, to declare the making of the proposal and the preparing of an EIS in relation thereto to be improper acts. These are of course matters which Congress is entitled and able to deal with in any call made upon it for the introduction or consideration of such a legislative proposal.

As to the proposals made in the EIS for the taking of administrative action (the extension of the Proclamation Boundary of the Ocala National Forest; the physical inclusion in the Forest area of the lands and easements held by the Canal Authority; the transfer to the Forest Service of jurisdiction over these lands and the "structures associated with the Cross Florida Barge Canal along the Oklawaha River in Marion and Putnam Counties;" the acquiring of title to the properties held by the Canal Authority; and the immediate lowering of the water level of the Rodman Pool), the first two of these would appear to involve only policies, actions and relationships among departments and agencies in the Executive Branch, which in the absence of a limiting statute it would be within the prerogative of the Executive Branch to adjust and iron out among such departments and agencies.

As to the third proposal, however, (the transfer to the Forest Service by executive and administrative action of jurisdiction over the Canal Authority's lands and the structures thereon), this would seem, from statements contained in the EIS, to involve an intent and threat to engage, if the jurisdictional transfer were made, in a dismantlement or alteration of some of the Canal's structures and incidents. No more right, however, to make dismantlements or alterations of the Canal situation could become conferred upon the Forest Service by the proposed transfer of jurisdiction than the President was possessed of to make a termination of the Canal project.

The last two proposals (the acquiring of legal title by the Forest Service to the properties held by the Canal Authority in the Oklawaha area and the question of immediately lowering the level of Rodman Pool) also would involve justiciable questions in respect to the Canal Authority (the State of Florida) and probably too as to property owners in the relation of the takings, sales, and grants of titles and easements which had occurred as to them.

But laying the President's termination order to the side, the matters which have been enumerated are without basis to hold that the Forest Service could not submit proposals for administrative action in respect to the Barge Canal project and prepare an EIS in connection therewith merely because of the status of the Canal as a Corps of Engineers project. To engage in repetition: in the absence of a prohibiting statute, the mere making of such proposals and the preparation of an EIS therefor would be matters for internal regulation and control by the Executive Branch in the interrelationships of its agency structures. And again repeating: where the field involved is one in which more than one agency may have a subject-matter interest and anenvironmental concern, generally speaking it is for the Executive Branch to say which one of them should be permitted to make the proposals for administrative action.

NEPA would not thereby be violated for its primary concern in this respect is not by what particular agency such a proposal may be made, but that "all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement [EIS] by the responsible official" on the five aspects set out in § 4332(2)(C) of the statute, and that "the responsible official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved."

The Guidelines issued by CEQ, 36 Fed. Reg. 7724 et seq., have attempted to assist the Executive Branch in handling the problems and controversies which are capable to arising among the agencies in relation to environmental situations, by a provision in § 5(iii)(b) thereof for constituting one of such agencies as the "lead agency" to make the proposals and prepare the EIS in connection therewith, and defining the term "lead agency" as follows: "'Lead agency' refers to the Federal agency which has primary authority for committing the Federal Government to a course of action with significant environmental impact." The section further provides that "As necessary, the Council on Environmental Quality will assist in resolving questions of lead agency determination."

In the situation here, it had been agreed by the Secretary of the [4 ELR 20264] Army (in the chain of command existing in him as to the Corps of Engineers), by the other Departments of the Executive Branch (and thus by their constituent agencies) having a subject-matter interest in the proposals and their environmental effects, and also by CEQ, that the Forest Service should constitute the agency to make the proposals and prepare the EIS incident thereto. Hence in respect to interagency relationships and also within the facilitating provisions of the CEQ Guidelines, the Forest Service here occupied the position of lead agency for making the administrative proposals involved.

The Forest Service's EIS is therefore entitled to be dealt with on its merits. This includes the questions of whether the EIS had been so predicated on and controlled by the invalid premise that the President's order had put an end to the Canal project as to make the EIS legally defective, and also whether otherwise its contents on the materials thereof and in the evaluations and conclusions made therefrom were sufficient under NEPA.

VI.

The questions of the legal defectiveness and sufficiency otherwise of the EIS.

(5)

On the question of the legal defectiveness of the EIS, it seems clear that the EIS has proceeded in its administrative proposals on the premise and has dealt with the Canal situation on the basis that the President's order had validly put an end to the project.

The understanding which was arrived at in connection with the designation of the Forest Service to prepare the EIS, that the EIS was to be proceeded with upon the basis that the Canal was ended, has previously been mentioned. That the Forest Service had performed its EIS task on this basis seems to me to evidenced by the fact that CEQ permitted the EIS to be released as having satisfactorily implemented the CEQ and Army recommendations. The EIS itself also contains express indication that the invalid premise had constituted the basis of its approach and results.

Thus in the "Chronology of Pertinent Actions" set out in the EIS, the President's order was characterized as follows (p. 6):

1971, Jan. 19 — President terminates construction of Barge Canal and directs Department of Army and CEQ to prepare recommendations for the future of the area.

In the part entitled "Background for the Proposal" (p. 9), the following statement (p. 10) was made as to the nature of the approach taken by the EIS:

In his statement halting the project, the President also asked for the Secretary of the Army to work with the Council on Environmental Quality in developing recommendations for the future of the area. Pursuant to this directive, the CEQ and Army conducted a study of the situation and produced recommendations for the future of the Oklawaha area. To implement these recommendations, in accordance with the requirements of the National Environmental Policy Act of 1969, the Forest Service has prepared this proposal and environmental impact statement. (Emphasis added).

The following statements in the EIS (p. 103-104) add confirmation that the Forest Service regarded the President's order as having terminated the Canal and as thus having left the Oklawaha area and the Canal elements constructed therein subject to being dealt with, not only in the general actions proposed, but also in immediate administrative actions (the intent or thrust of which I have referred to above) against certain existing elements in the Canal situation:

Objectives of the proposed action are to preserve and protect sections of the Oklawaha River as a natural system and to return as much of the disturbed river as possible to its natural condition. While the management or disposition of certain structures will be determined by the Wild and Scenic River Study, immediate attention should be given to two structures that impair the natural flowage of the Oklawaha River. These obstacles are Eureka Dam and Lock and the roadbed of Old State Highway 40 crossing the Oklawaha River near Silver Springs.

. . . Without the removal of the roadbed, it may be necessary to channelize stream reaches in the vicinity of SR 40 to increase discharge capacity to carry projected future upstream runoff. Presence of the roadbed also detracts from the aesthetics of the area and would affect eligibility of this section of the river for inclusion in the National Wild and Scenic River System. Removal of the old roadbed of State Highway 40 in the flood plain of the Oklawaha River would return the flood plain to its natural condition.

Eureka Dam and Lock retard free flowage of the Oklawaha River during periods of high water, which increase the duration and extent of temporary flooding, with resulting adverse ecological impacts on the flood plain. The dam and lock also detract from aesthetic amenities of the Oklawaha River. Because of presidential action in terminating the construction of the Canal, there now is no functional need for Eureka Dam and Lock. In addition, the hydrologic impacts of these structures on the flood plain and the visual effect on the aesthetic amenities of the river valley make it necessary for the removal in whole or in part of Eureka Dam and Lock to return the floodplain to its natural condition. (Emphasis added).

The immediate alterations and dismantlements thus proposed are, as I have previously stated, not matters which the President could have directed to be taken or which the EIS could seek to have immediately administratively effected, except upon the basis that the Canal had been validly terminated.

I find and hold that the EIS has been premised in the administrative actions proposed to be taken upon the invalid basis that the Canal was terminated. Thus (with the exception of the proposals to have the proclamation boundary of the Ocala National Forest merely generally extended and to have the lands owned by the Canal Authority merely geographically included in the Forest area, ad discussed in section V(4), supra), the EIS is without basis for having the proposed actions administratively taken and in that sense is legally defective as being fallaciously premised.

(6)

Even however if the EIS had not been in this sense legally defective, I find and hold that it also otherwise must be regarded as being insufficient under NEPA. As previously noted, it does not deal with the entire Canal project, but only with the Oklawaha River portions thereof. There exists a completed segment on the east end of the Canal, consisting of a dredged barge course estending into the St. Johns River, and a completed segment consisting of a constructed vessel channel extending from the Withlacoochee River area some 10 miles out into the Gulf of Mexico, as well as some other things of substantiality which have been done in that area as project-related incidents.

The Canal as it had been authorized and designed and as its construction had been proceeded with, constituted an integral project. It clearly involved environmental impacts other than those in the Oklawaha part, as the Chairman of the Senate Committee on Appropriations took occasion to bring out in the Recall Hearings held on the appropriation measure.

The Report of the Proceedings in the Recall Hearings also shows that the Chairman of the Committee (Senator Stennis) had at that time further pertinently observed:

How could a decision be reasonably made on the Ocklawaha without first looking at the whole thing? It seems to me that these environmental statements are supposed to bring out all the environmental effects and all the alternatives involved in decision . . . But now they want us to sit still for what sounds like an impact statement that is incomplete, based on a CEQ document, and prepared by an agency only partly involved in the basic decision. . . .

. . . I resent the fact that Congress hasn't been given a decent opportunity to consider this whole decision in adequate fashion. It appears to me what is happening is that these recommendations you talk about will come limping up here one by one and we will never get the whole thing pulled together . . . .

[4 ELR 20265]

Only the premise that the Canal had been validly terminated could provide basis for the EIS to deal with the integral Canal project on this fragmentized basis. With the President's order being in this respect invalid, the fragmentized dealing of the EIS with the Canal situation would have no different stature than a direct attempt to strangle the project by engaging in a segmentary choking of it. It may well be that the Oklawaha River should never have been permitted to be incorporated into the Canal system, but the facts remain that it was; that the project has never been legally terminated and so still exists; that any executive or administrative attempts to excise the Oklawaha River portion from the Canal system would involve economic, social and ecological consequences not only to the project but to the area generally; and that any EIS aimed at having such an extraction made would normally be expected to provide information and consideration in respect to the whole situation.

Among other things, I am not able to see how such an EIS properly could escape having a current cost/benefit evaluation made of the whole project, with this, of course, necessarily including a proper quantification in over-all aspect of the various environmental pluses and minuses that are in involved. To view the situation otherwise, it seems to me, would not comport with the full disclosure intent of NEPA either as a matter of entitling public judgment to be informedly made or of enabling Congress to engage in responsible and balancing legislative determination on whether the Canal as such should be continued, modified, or wholly terminated.

But even on a narrower basis, I regard the EIS in respect to its administrative proposals that are saliently affective of the Situation as not being sufficient under NEPA. For example, the EIS admits that a substantial problem would be created by a carrying out of the administrative proposals from the interrelation which exists of the Four Rivers Basin drainage situation to the Oklawaha portion of the Canal project, but the EIS does not deal with the manner and cost of providing a solution thereto. As another example, the EIS assumes that all that could be involved from an economic standpoint in respect to its proposal for acquiring the titles and easements held by the Canal Authority in the Oklawaha segment would simply be to make reimbursement to the Canal Authority (i.e. the State of Florida) of the amounts of its acquisition costs. But for the Government to undertake to acquire such titles and easements for a use other than Canal purposes, would seem on its face to suggest realistic potentialities of problems and complications with which the EIS does not deal. I should naturally suppose that not only Congress but the public would be entitled and would expect to have the EIS alert it and provide it with more information than a bare assumption that the takings, sales and grants of titles and easements which have occurred will involve only a reimbursement of acquisition costs for dedication to Canal purposes.

There are a number of other relevant aspects also which the EIS leaves dangling, but I do not deem in necessary to go into these here, for in practical viewpoint it seems to me that these would inevitably be covered or become washed out by an EIS on the whole project such as Congress intended and desired be done.

The significance of the $150,000 appropriation and the executive impoundment thereof in the relationship of this to the result here reached will be next discussed.

VII.

The $150,000 EIS appropriation and its executive impoundment.

(7)

The expressions at the Recall Hearings on the appropriation measure made by the Chairman of the Senate Committee on Appropriations and the relation thereof to the fragmentized dealing made by the Forest Service's draft EIS have previously been alluded to. These were also reflected by the following portion of the Committee Report dealing with the $150,000 EIS item (H.R. No. 1151, p. 23, June 1972 [to accompany H.R. 15586]):

The Committee has recommended in the bill $150,000 to initiate a detailed and complete environmental impact study of the project. The study should give consideration to all environmental and other factors requisite to a determination of appropriate action to be taken in the management of completed portions of the project. Such a study, including the preparation of an environmental impact statement as required by Section 102 of the National Environmental Policy Act, has never been provided for the project, and the Committee believes that it is eseential that such information be available before final determinations can be made concerning follow-on actions that are warranted in connection with the project . . .

It is inescapable that the question of what the fate of the Barge Canal is to be, whether a continuation, a modification, or a termination and destruction of the project, can only and must be provided answer by Congress. In corollary, it equally has to be recognized, as I have indicated, that Congress is entitled to call for an EIS in such form and content as it deems necessary or desires for making that determination. Repating for purposes of emphasis: on this phase alone, and apart from any other considerations, the Forest Service's EIS would have to be declared insufficient in the situation. Congress can exclude a situation from the EIS provisions of NEPA, if it so chooses, and it equally has the right to direct what form of EIS it desires to have submitted to it for making decision in a particular situation. The indication of its desire here has, as stated, clearly been made by the special $150,000 EIS appropriation and the expressions in reference thereto contained in the Committee Report accompanying the measure in its legislative course and action.

I had hoped, as I am sure had everyone else, that when the President intruded into the Canal situation, with its long underlying history and its strongly divided public sentiment, with the matter then moving into its technical and tortuous judicial course, some judicial solution would be capable of being found that could put the controversy at rest. I can, however, find no such immediate solution. The situation is going to have to be allowed to grind its way along on such incidents as may arise until Congress sees fit to provide the final answer. To facilitate that end, I feel it incumbent upon me at this stage to see that the intent of Congress is cbserved, to have prepared and made available to it the EIS which it desired. That can only be done by directing the Office of Management and Budget to make release to the Corps of Engineers of the $150,000 funds which it has impounded.

If because of a conformance to or an adoption of the President's position by the Chief of Engineers and the Secretary of the Army, the preparation by the Corps of Engineers of the desired EIS would constitute a matter of official or public embarrassment to these officials, the statutes would seem to provide an alternative way for dealing with the situation. Under 33 U.S.C. § 569a, "The Chief of Engineers is authorized to procure the temporary or intermittent services of experts or consultants or organizations thereof in connection with civil functions of the Corps of Engineers . . .".

The evidence here shows that in the extent to which the field of preparing environmental impact statements has grown at the present time, independent professional organizations of unquestionable standing and reputation have come to exist which are engaged in that general business, and a complete handling of all of the aspects thereof, and that the Corps of Engineers, in the extreme EIS burden with which it has been faced because of its extensive field, has had times to resort to this means of handling some of its situations.

(8)

The only justifiable basis that I can see for the Office of Management and Budget (OMB) to have made impoundment of the $150,000 EIS funds would be that it regarded the expenditure of such funds for the preparation of an EIS as constituting in the situation a mere duplication of what the Forest Service was then engaged in doing, and that it believed that Congress could not have intended for such a duplicating expenditure of funds to be made. But that premise would have to be regarded as fallacious from the discussion occurring at the Committee Hearings and particularly on the indicated knowledge which the Committee had of the scope and course which the draft EIS had taken. Without going into a discussion of the general question of executive impoundment, in the prominence that it has currently come to have, it is sufficient here to observe that the amount involved is only $150,000; that no question of fiscal insolvency, unusual inflationary conditions, or other economic emergency concerns is involved; that no implied intention [4 ELR 20266] for executive discretion to exist as to the situation can reasonably be read into the Congressional action; and that the impoundment cannot be contended to be within any power of impoundment inherent under the Anti-Deficiency Acts, 31 U.S.C. § 665, or in any way impliable from the requirement of 31 U.S.C. § 581c-1 for the reporting by the President to Congress of all impoundments made.

The impoundment must therefore be regarded as having been arbitrarily made and the Director of OMB will be ordered to take such action in release as will make the funds available in normal course to the Corps of Engineers for the intended Congressional purpose.

VIII.

The lowering of the water level of Rodman Pool.

(9)

The situation presently stands with a preliminary injunction against the Federal Defendants prohibiting them from lowering the water level of Rodman Pool below its existing m.s.l. height of 18 feet. This prohibition has remained in effect since the preliminary injunction was originally granted by Judge Scott in the Canal Association case, No. 71-486-Civ-J, in July 1971, with the exception of a brief period during the 1972 growing season for which I allowed a temporary reduction to be made from 18 feet to 13 feet.

Although no appeal had been taken from Judge Scott's injunctive order or from my subsequent affirmance and extension thereof to all the cases, successive motions to reopen the water-level question were continued to be made, with each of these repeated motions however being denied by me without hearing because the showings in basis for them did not seem to me to demonstrate an ability to prove such changes in conditions or equities as to call upon me in chancellor conscience to grant another hearing.

Finally, however, the Federal Defendants in a further thrust at obtaining another hearing undertook to have a task force of scientists engage in a study, evaluation and report on the tree situation of the Pool. The sequence of such motions had by that time (as I recall it but without having specifically checked the voluminous files and transcripts) reached a total of four or fivein number. With liberality toward the question of public interest, I decided to grant a hearing upon the particular motion. Although I was not without some doubts on the estimates made of the number of trees that would be saved, I allowed a drawdown to be made for the remaining months of the 1972 growing season in experiment and observation and for the dramatization which this would afford the public of the conditions that would thereby come to obtain.

I took occasion in my Memorandum and Order of July 21, 1972, to state:

The consequence of the allowed temporary drawdown will not, in the court's view, so substantially affect the Canal project or the Rodman Pool evaluatably as to enable escape to be made from the full play of procedures of the Environmental Policy Act. And so that no contention will be able to be made that the drawdown will be used in ploy, after the 1972 growing season has ended, to urge that the 13-foot level ought practicably and automatically to be continued, the court makes clear that the command of the existing injunction that the Pool is to be maintained at an 18-foot level retains its operative forece after December 1, 1972. The drawdown sought was for the balance of the 1972 season. The authorization for the existence of a 13-foot level has been granted only for that period of time. Acceptance of the drawdown privilege can be made only upon that basis.

As noted, however, no appeal had been taken from the original granting of the preliminary injunction or the subsequent extension of it to all the cases. No appeal had been taken from any of the denials made of the previous successive motions to reopen and modify. No appeal was taken from the conditions which I imposed in relation to allowing the lowering of the Pool to be made only to December 1, 1972. The level of the Pool was returned to its 18-foot height after December 1, 1972, in accordance with the July 21, 1972, order. After all this had occurred, the Federal Defendants again pressed for another water-level lowering. I refused to engage in any further consideration or reopening of the question. The Federal Defendants and EDF then took appeals from this refusal on my part, despite their failure to have sought a review on any of the aspects I have detailed above.

These appeals are now pending in the Court of Appeals, and generally speaking I would be without jurisdiction to engage in any action that might affect their status. But the cases have by desire and request of all the parties since been allowed to move forward through a trial on the merits in the hope of achieving a final disposition of the controversy. The question of whether the 18-foot level of the Rodman Pool should be allowed to remain and the preliminary injunction thus be made permanent until Congress has acted on the situation is inescapably linked to some of the trial determinations. In this incidence, I again gave consideration to the evidence on the tree situation and the contextual significance of that question in the present status of the Canal.

As I have observed, the Canal project still legally exists; the environmental, ecological and physical conditions which have been created by the construction done constitute a status quo having public values of its own; and an indefinite lowering of the water level of the Pool will materially affect that stuatus, particularly its recreational uses and values. The restoring of these conditions in the event Congress should decide to continue the Canal project or to allow the Rodman Pool to remain as a separate recreation facility cannot in my judgment be as simply accomplished as the Federal Defendants contend. A three-year drawdown (which is the length of time estimated by the Forest Service's EIS that a wild and scenic river study might consume) would cause the Pool to become incapable of any recreational or other enjoment for a long time thereafter, as the few months' drawdown permitted in 1972 seems to me persuasively to demonstrate. Even that short period of drawdown resulted in the Pool becoming completely covered and matted with aquatic weed growth. It occasioned the death of thousands of fish of eatable and general-sport size and of millions of young fish of a length of three inches or less. It left the area with aesthetic conditions repellent to general visitors, picknickers, campers, and adjacent land owners. To restore the Pool to its previous status would not be a mere task of adding another five feet of water, but, as a part of the evidence suggests, requiring that a complete draining of the Pool made; clearing out the totally controlling weed growth; and engaging in engineering actions to restore the bottom of the Pool to its original level and soil conditions — or in effect to reestablish the Lake.

Against this, the question of the number of trees that might be saved does not seem to me to be overbalancing in the situation. What would be involved is, in forest terms, a relatively small area and amount of trees. The situation does not consist of a solid tree stand, but a mixed or spotted condition of in part live trees and in part dead trees. The restoration of the area to a climax forest state, if that should be the result ultimately decided on by Congress, will in any event require a substantially long period of time. Realistically, I do not think that a ten or twenty-year period has too much significance in the history of a forest or in public interest and concern. Besides, the counting of trees in the sample plots chosen as a basis for estimating the total number of trees involved appears to have included not merely the trees of long growth, but to have extended as well to the trees with only a one-inch trunk.

My concern judicially is not in guessing at what the ultimate decision of Congress may be. I am interested from the standard of fairness and justice in having the parties and the strongly divided general public afforded as equitable a position as possible for getting this bitter controversy fully viewed and disposed of by Congress. It is not within my province to be swayed by a speculation on what Congress may ultimately do. Congress will in my judgment be in a a better position relatively to evaluate the whole situation with the 18-foot level of Rodman Pool being allowed to remain, since this constitutes in fact the status quo which has been created and exists.

I shall therefore make the preliminary injunction permanent until Congress has taken some indicative action. If this might appear to trespass on the jurisdiction of the Court of Appeals over the pending appeals (which I do not regard it as doing in the circumstances) this can become solved through the parties taking an immediate appeal from the judgment herein and so enabling the [4 ELR 20267] Court of Appeals in sound judicial administration to deal with the whole situation.

IX.

The other claims in the EDF suit and in Perko suit, as referred to in Section IV hereof, can be disposed of in short shrift.

The claim of EDF that the construction of Rodman Reservoir should be declared to be unlawful and the situation thus held to be that the reservoir has never had a valid existence is without merit and the claim will accordingly be dismissed. The primary basis of the claim was that the Rodman Dam had been built some distance below the location shown in the preliminary plans which had been submitted by the Chief of Engineers to Congress. But in my opinion the documents involved (H.D. 109) can no more be said to show an intention on the part of Congress to preclude the Secretary of War (as here material, the Secretary of the Army) from making any change or modification in the preliminary plans as to the dam location than did the documents and the situational elements dealt with in United States v. 2,606.84 Acres of Land, etc., 432 F.2d 1286, at 1292-1293 (5 Cir. 1970). The Canal Authorizing Act (56 Stat. 705) made no mention of the particular components of the Canal Authority or their locations. The general plans referred to in the Act were outlined in a letter of the Chief of Engineers dated June 15, 1942. The route authorized was described as the "most feasible method." In another letter from the Corps, dated June 12, 1942, the War Department had recommended the Barge Canal "generally as shown in the accompanying drawing, and subject to modification as may be found desirable in the discretion of the Secretary of War and the Chief of Engineers."

The change in dam location here involved was in my opinion within the approval power of the Chief of Engineers under 33 U.S.C. § 401.

Nor does the claim that there had further been a violation of the Canal Authorizing Act, in that the plans submitted by the Chief of Engineers had stated that there would be no "effect on the ground water in the area" afford a basis to hold the Canal to be unlawful. There existed a sufficient basis for the Chief of Engineers to hold that judgment. Further, Congress had accepted the judgment of the Chief of Engineers at the time. But beyond this, the question could not in any event afford a basis for the EDF to have the project declared to be ab initio unlawful. The only right it could have at this state of the Canal controversy would be to seek to have the construction of the Canal halted and have Congress revoke its existing authorization of the project or direct that termination and dismantlement thereof be made.

One of EDF's other claims was that in the construction of the portions of the Canal in the Oklawaha River area there had not been such cooperation on the part of the Corps Engineers with the Fish and Wildlife Service of the Department of the Interior as was required by 16 U.S.C. § 662 of the Fish and Wildlife Coordination Act. But the lack of substantiality in this claim as a separate means of reaching at the Canal project is persuasively dealt with in EDF, Inc. v. Froelke, 473 F.2d 346 at 356 (8 Cir. 1972), as follows:

But as Judge Eisele said in Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749, 754 (E.D. Ar. 1971) . . ., if the Corps complies with NEPA in good faith, it will 'automatically take into consideration all the factors required by the Fish and Wildlife Act and it is not reasonable to require them to do both separately.'

Any such attack upon a Corps of Engineers project as to which the EIS has appropriately been prepared by another agency (here the Forest Service) must, in such basis, if any, as the claim might be capable ofhaving, equally have its channel through the contents of the EIS.

What I have just said is applicable also to the rest of the claims asserted by EDF, and no further expression need be made in disposition of them except to repeat that they all are subsumed into the contents of the EIS prepared in relation to the situation and the question of its adequacy under NEPA. All of these claims will accordingly be dismissed.

The general claim of EDF to a right to have construction of the Canal halted until an EIS under NEPA had been provided will, however, in the situation be permitted to stand. While the change in position which has occurred on the part of the Federal Defendants might make the claim presently unnecessary, EDF had instituted its action while the construction of the Canal was still going on and its right on that basis to remain in the litigation until the controversy has come to an end will be accorded recognition despite the desire of both the Canal Authority and the Federal Defendants to get it out of the litigation.

As to the claim in the Perko case of a right to have the Rodman Pool remain, on contract, quasicontract or other obligational basis, that claim is premature and will probably have to try to seek its channel, if Congress decides to destroy the Pool, in the provisions of the Tucker Act, 28 U.S.C. § 1346(2). The claim will therefore be dismissed without prejudice.

JUDGMENT

On the basis of the foregoing Opinion, it is ORDERED AND ADJUDGED as follows:

1. The Environmental Impact Statement of the Forest Service is hereby declaratorily adjudged to be legally defective as basis for a right to take the administrative actions proposed therein of depriving the Cross-Florida Barge Canal of its status as an existing public-works project and of altering the environmental, ecological or structural conditions which presently obtain in relation to it.

2. The Federal Defendants are hereby enjointed from engaging in any acts of destruction or alteration of the environmental, ecological or structural conditions presently existing in the Cross-Florida Barge Canal project, until Congress has taken some authorizing action or made other official indication of its desire to have such a destruction or alteration made.

3. The preliminary injunction presently existing as to the Rodman Pool (Lake Ocklawaha) is hereby made permanent, with leave to apply to have it vacated or modified, as may be appropriate, if Congress engages in authorizing action or makes other official indication, as referred to in paragraph 2 hereof.

4. The Director of the Office of Management and Budget is hereby directed to release and make available the $150,000 funds appropriated by Congress for use by the Corps of Engineers to prepare or have prepared for it "a detailed and complete environmental impact study of the project." with the inclusion therein of "all environmental and other factors requisite to a determination of appropriate action to be taken in the management of completed portions of the project."

5. A period of six months from the entry of this Judgment is hereby granted for having such EIS task completed and the EIS filed herein, except as some necessary extension thereof may be granted for good cause shown.

6. Reservation of jurisdiction is hereby made to deal with any arising question, inherent or of other proper incidence, necessary to effect a final termination of the present litigation.

1. As a matter of fact, a few days before the President's order Judge Barrington Parker, of the District of Columbia district, had made a general oral grant in the EDF suit of a preliminary injunction against further construction of the canal, but this oral grant was not made the subject of a written signed order of specific terms until approximately a week afte the President's order. See EDF v. Corps of Engineers, 324 F. Supp. 873 (D.D.C. 1971). There is nothing to indicate or suggest, however, that the President's order had been prompted by or bore any relationship to the oral injunctive grant.

2. A sketch of the planned Barge Canal appearing in the press has been set out in Appendix A for general orientation. [omitted. Ed.]

Historically the construction of a waterway across northern Florida had recurringly been urged for more than a century, and a number of studies had throughout that period been made in relation to the question. As proposed during that time, the facility was to consist of a sea-level canal. Among those who had favored it were Presidents John Quincy Adams, Andrew Jackson and Theodore Roosevelt. Ultimately in 1935, President Franklin D. Rossevelt made allotment of some $5,000,000 out of an appropriation for a public-works relief program as an initial step in the canal's construction. Objections on the part of railroads, southern Florida interests and other opponents resulted in further funds not being made available for construction of the canal. The situation ths stood until 1942, when Congress, largely in reaction to the heavy shipping losses which had been occurring around Florida from German submarines, enacted Public Law 77-675 authorizing the construction of a high level lock-type facility. The lock canal project had been approximately 30 percent completed at the time of President Nixon's 1971 halting order, with some $50,000,000 of Federal funds and some $12-14,000,000 of State and local tax monies having by that time been expended in incidence to it.

3. Instead of making enumeration of the Federal Defendants here (of which there were more in some suits than in others) a list of the parties in the several cases, both those initially named and those subsequently added, has been set out in Appendix B. [Omitted. Ed.]