Alabama ex rel. Baxley v. Corps of Engineers

No. CA75-H-2343-J (411 F. Supp. 1261) (N.D. Ala. April 14, 1976)

ELR Digest

The court enjoins further channelization of Luxapalila Creek, a tributary of the Tombigbee River, after finding a substantial likelihood that plaintiffs will prevail on the merits of their claims that the project EIS fails to satisfy the requirements of NEPA. The channelization project, which is designed for flood protection, will destroy streambank wildlife habitat, clear ever-decreasing bottomland hardwoods, and increase stream turbidity and temperature. The state of Alabama, through its Attorney General, has the requisite standing to bring this suit, since its citizens use Luxapalila Creek and its fish and wildlife, and § 229 of Title 55 of the Alabama Code authorizes the Attorney General to institute actions to protect the rights and interests of the state. Plaintiffs will clearly suffer irreparable injury if the project is unlawfully constructed, and the magnitude of this injury outweighs the harm an interlocutory injunction might do to defendants. Moreover, there is a substantial probability plaintiffs will prevail on the merits of their claims that the project EIS fails to calculate and present properly the project's costs and benefits, or to present adequately available alternative proposals. NEPA requires that environmental and nonenvironmental factors be quantified where reasonably possible and included in a cost/benefit analysis in the project EIS. The evidence thus far presented indicates that in the draft EIS the Corps failed to quantify accurately in monetnary terms significant recreational hunting and fishing losses that could have been so quantified. Furthermore, the Corps' use of unreasonably low 1964 valuations in the final EIS rather than current values for a day of recreation may be so arbitrary in itself as to violate NEPA. Plaintiffs have also mounted a strong challenge to the legality of the three percent interest rate used by the Corps. Under § 80(a) of the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17(a), the interest rate used by federal agencies for water resources projects in any given fiscal year is determined by the average yield during the preceding fiscal year of government securities having maturity dates of 15 years or more. During fiscal year 1975 this figure was 5-7/8 percent. 39 Fed. Reg. 29242. However, § 80(b), 42 U.S.C. § 1962d-17(b), exempts from this requirement any project which was authorized before January 3, 1969, and for which, prior to December 31, 1969, the appropriate non-federal interests gave "satisfactory assurances" to pay the required non-federal share of project cost. The court rules that plaintiffs are likely to succeed on the merits of their claim that no such assurances were given by the Tombigbee Valley Development Authority since any monetary obligation assumed by the Authority prior to 1974 would be in violation of the Authority's powers as granted by state law. The court notes that recomputation of project costs using the higher interest rate may destroy the cost/benefit "parity" required by the Flood Control Act of 1958 before the project may be implemented. The court also holds that plaintiffs are likely to prevail on the merits of their claim that the impact statement fails to include sufficient information concerning available alternatives to the project as currently planned. Stating that it is "unwilling to close the courthouse door" to public interest litigation, the court requires that only nominal security in the amount of one dollar be posted by plaintiffs under Rule 65(c) of the Federal Rules of Civil Procedure.

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1064).

Counsel for Plaintiffs
William J. Baxley, Attorney General
James R. Cooper, Jr.
H. H. Caddell Asst. Attorneys General
State Capitol
Montgomery AL 36604
(205) 832-6050

Counsel for Defendants
Shirley McCarty
Bill L. Barnett
Charles Perry, Asst. U.S. Attorney
U.S. Courthouse
Birmingham AL 35203
(205) 254-1785

Counsel for Intervening Defendant Tombigbee River Valley Water Management District
Fred M. Bush, Jr.
Mitchell, McNutt, Bush, Lagrone & Sams
316 Court St.
Tupelo MS 38801
(601) 842-3871

Hancock, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]