Concerned Land and Natural Resource Owners, Inc. V. Seamans

No. 77-3116-H (S.D. W. Va. October 26, 1978)

The court enjoins further work on undisturbed areas of a secondary oil recovery project partially funded by the Energy Research and Development Administration (ERDA) pending preparation of an environmental impact statement. The court finds that promotion of the project by ERDA is a major federal action for purposes of the National Environmental Policy Act. The court decides that unless an injunction is issued, irreparable injury will probably result to the undisturbed project area. The injunction does not apply, however, to that part of the project area already disturbed by drilling and surface excavation. In the exercise of its discretion, the court dismisses the pendent claims of nuisance and trespass and directs that they be tried in state court.

For a summary of plaintiffs' documents filed in this case, see ELR PEND. LIT. 65461 and 65491.

Counsel for Plaintiffs
David R. Wooley
Appalachian Research and Defense Fund, Inc.
1116-B Kanawha Blvd., East, Charleston WV 25301
(304) 344-9687

Joel Shifman
P.O. Box 65, Griffithsville WV 25521
(304) 524-7221

Counsel for Defendants
Joseph Goodwin, C.E. Goodwin
Goodwin, Goodwin, Bryan & Lobert
1717 Charleston Nat'l Plaza, Charleston WV 25301
(304) 346-0321

Rebecca A. Betts, Ass't U.S. Attorney
P.O. Box 3284, Charleston WV 25332
(304) 345-2200

[8 ELR 20891]

Haden, J.:

This is a civil action instituted by environmental organizations, an individual landowner, and the Jesuit Appalachian Ministry, an unincorporated association affiliated with the Roman Catholic Church, against the Administrator of the Energy Research and Development Administration of the United States of America, and an oil well drilling and operator and owner, the Guyan Oil Company, a West Virginia corporation.

The purpose of the litigation is threefold: (1) to halt the construction and operation of a secondary oil recovery project jointly sponsored and funded by the defendants, located on a 90-acre parcel of rural real estate situated near the Town of Griffithsville in Lincoln County in the Southern Judicial District of West Virginia; (2) by the plaintiff, Gillenwater, to enjoin alleged repeated trespasses to the surface of real estate operated by him as a farm adjacent to the 90-acre oil recovery project, and to seek damages for the trespasses to the real estate including statutory treble damages for destruction of growing timber on Gillenwater's property; and (3) a demand by all plaintiffs for an injunction against both defendants to abate the alleged nuisance occurring due to the activities being performed on the 90-acre secondary oil recovery project.

The question now before the court involves demands for preliminary injunctions to halt the project and the funding for the same by reason of ERDA's failure to observe environmental amenities as required by the National Environmental Policy Act of 1969 (NEPA), and under state law, to abate the nuisance and trespasses.

Guyan Oil Company has answered the complaint of the plaintiffs denying generally all the allegations of the complaint and raising as affirmative defenses that the court lacks jurisdiction of the subject matter in several respects, and that is (1) no federal question was raised; (2) no claim arising under an act of Congress regulating commerce was raised; (3) the amount in controversy is less than $10,000; (4) the action against the Administrator is in substance against the United States of America, which has not consented to be sued nor waived its immunity; and (5) if this is purporting to be an action between or among citizens of different states, there is not complete diversity in that the plaintiffs and the defendant, Guyan Oil Company, are West Virginia residents. The defendant, Seamans, has not filed an answer in this action to date.

The court has held several hearings and taken extensive testimony in regard to the application for preliminary injunction.

Deferring for the moment any further reference to state claims asserted in this action under "pendent" jurisdiction, the hearings and the briefs of the plaintiffs and the defendant, [8 ELR 20892] Seamans, have developed three principal issues: First, was ERDA required to prepare an environmental impact statement (EIS) pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321, 4332(2)(C). Secondly, if ERDA was required to prepare such a statement, does the fact that one was not prepared prior to the commencement of the secondary oil recovery project entitle the plaintiffs to a preliminary injunction without additional proof, and, third, if proof beyond failure to file an EIS statement is required of plaintiffs, have they sustained the burden of making a showing of probable, irreparable injury from denial of the requested injunction.

Background

(A) Status of the Action

The application for preliminary injunctions insofar as the same are directed to the defendants for alleged failures to observe the requirements of NEPA are matured and ripe for decision.¹

(B) The Parties

(1) The plaintiff Concerned Land and Natural Resource Owners, Inc.'s (CLANRO) Southern West Virginia Chapter is a non-profit, West Virginia corporation organized for the purpose of protecting land and natural resources from wasteful or unnecessary destruction and injury. Numerous members of the organization reside in the near vicinity of the Guyan Oil Company, Inc. secondary oil recovery project near Griffithsville, West Virginia.

(2) The plaintiff, Save Our Mountains, Inc., is a non-profit West Virginia corporation, organized for the purpose of opposing environmental pollution and wasteful development practices. Members reside in the near vicinity (less than one mile from the site) of the defendant's oil recovery project.

(3) The plaintiff, Edward Gillenwater, is a resident of Griffithsville, Lincoln County, West Virginia, who operates a small farm adjacent to the secondary oil recovery project in question. Although the extent of his ownership of the "adjacent farm" was not shown in the proof of the case, he claims to own the surface of the farm with some mineral rights and, as well, claims an overlap or partial, but undetermined surface ownership of the 90-acre parcel comprising the defendant's pilot project. For purposes of this motion, the court will note Gillenwater's claim to the overlap in the 90-acre parcel on which the project is situated and will assume that the plaintiff, Gillenwater, owns the real estate of the "adjacent farm," excepting therefrom the ownership of oil and gas, but including therewith the right to "free gas" for residential purposes.

(4) The plaintiff, Jesuit Appalachian Ministry, is a non-profit, unincorporated association operating in a parsonage for religious purposes, which is located in Griffithsville in the near vicinity (less than one mile from the site) of the secondary oil recovery project.

(5) The defendant, Robert C. Seamans, is the Administrator of the Energy Research and Development Administration (ERDA). ERDA is an independent executive agency of the federal government established by the Energy Reorganization Act of 1974, (42 U.S.C. § 5811 et seq.) for the purpose of advancing research in the field of energy development.

(6) The defendant, Guyan Oil Company, Inc., is a West Virginia corporation operating for profit which is the operator of the secondary oil recovery project situated on a 90-acre parcel in which it claims fee simple ownership. It likewise claims the right to explore, drill for, and operate oil and gas mineral recovery on adjacent and coterminous parcels totalling 2,750 acres of surface real estate per "farm out" agreements and lease assignments with the Pennzoil Company, Exxon Corporation, and the Columbia Gas Company. Although proof does not disclose the extent of ownership of this defendant, the court while noting the "overlap" claim of plaintiff, Gillenwater, will assume for purposes of this motion that Guyan Oil Company, Inc. owns fee simple title to the 90-acre parcel on which the secondary oil project is situated, and has oil and gas operating rights on the 2,750 acres of adjacent surface.

(C) The Project

The project involves a 90-acre pilot program for enhanced oil recovery through injection of liquid carbon dioxide and water in an old oil field near Griffithsville, West Virginia. The program is being conducted by Guyan pursuant to a contract with ERDA executed in the fall of 1975 under which the federal government pays 37 percent of the costs up to $1.2 million.

Findings of Fact and Conclusions of Law

Based upon the evidence adduced at the preliminary injunction hearings, the exhibits, pleadings, and all other matters contained in the record, the court makes the following findings of fact and conclusions of law:

1. This court has jurisdiction pursuant to 28 U.S.C. § 1331(a) and § 1361.

2. The plaintiffs have also alleged certain state law claims concerning nuisance and trespass which would require exercising the pendent jurisdiction of this court in order to determine such state law claims.

3. The denial or granting of a preliminary injunction by this court will necessarily end the litigation regarding the federal question claims. Thus the state law pendent claims of trespass and nuisance would have to be tried separately in this court after the claim which originally established federal jurisdiction was long ended. In the exercise of its discretion, this court finds that the value of efficiency in the disposition of the pendent claims is more readily available in the state courts, and this court should not unnecessarily decide questions of state law when judicial economy or fairness to the parties does not dictate such action. Aldinger v. Howard, 427 U.S. 1 (1976), citing Kenrose Manufacturing Co. v. Fred Whittaker Co., 512 F.2d 890, 894 (4th Cir. 1972); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

4. Under the contract between Guyan and ERDA, the federal government will contribute $1,200,000 in funding and Guyan will contribute approximately $2,046,000 in funding.

5. ERDA is vested with the authority to administer programs such as the one in question in this lawsuit. 42 U.S.C. § 5813(e)(2).

6. The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (hereinafter NEPA) applies to the undertakings of ERDA if those undertakings are major federal actions.

7. This court finds that the undertaking of ERDA in promoting the project at Griffithsville, West Virginia, through both substantial funding and technical advice, is a major federal action pursuant to 42 U.S.C. § 4332(2)(C).

8. Based upon the factual findings above, ERDA should prepare an environmental impact statement (hereinafter EIS) before undertaking the enhanced oil recovery project at Griffithsville, West Virginia.

9. The proposed action at the project site, and the possibility of similar action over the entire 2,750 acre adjacent surface, will significantly affect the quality of the human environment of that area.

10. The action already undertaken at the project site by the defendants has significantly affected the quality of the human environment in that area.

11. The defendant, Seamans, failed to prepare an EIS as required by 42 U.S.C. § 4331 et seq.

12. The interests which the plaintiffs seek to vindicate arealigned and consistent with the public interest.

13. The plaintiffs have demonstrated to the court that they are entitled to have an EIS prepared by ERDA. Conservation Council of N.C. v. Costanzo, 505 F.2d 498 (4th Cir. 1974), citing, West Virginia Highlands Conservancy v. Island Creek Coal Company, 441 F.2d 232 [1 ELR 20160] (4th Cir. 1971).

14. The plaintiffs have demonstrated that unless an injunction is issued, irreparable injury probably will result with regard to the project area which has presently not been disturbed. The injury which could result to the defendants, if the injunction is issued, is negligible compared with that of the plaintiffs. The defendants [8 ELR 20893] will only be delayed in proceeding with the project until a proper EIS is prepared whereas, should the project proceed in an environmentally unsound manner, irreparable injury to the environment in the project area could result. West Virginia Highlands Conservancy v. Island Creek Coal Company, supra.

15. The plaintiffs have failed to demonstrate that an injunction should issue with regard to that part of the project area which has already been disturbed through drilling and surface excavation. Landslide and similar environmental damages which occurred in the winter of 1977, prior to the institution of this action, have been the subject of extensive and expansive reclamation procedures done by defendants. An injunction which would require the defendants to cease work in these areas heretofore disturbed and not in the final stages of reclamation would be both unavailing and detrimental to the remediation of prior harm. See Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 [3 ELR 20383] (8th Cir. 1973); see also Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 [2 ELR 20162] (4th Cir. 1972).

16. Requiring an EIS for the entire 2,750 acres would be improper at this time, as the plaintiffs have not proved that defendant Seamans presently intends to fund work in any area other than the 90-acre project site. See generally, Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976).

17. There have been several previous environmental assessments of the project area completed by different entities. These environmental assessments, although not complying with the requirements of 42 U.S.C. § 4331 et seq., are nevertheless relevant to any subsequent EIS prepared by defendant Seamans. Thus, these prior environmental assessments may be used by defendant Seamans in preparing the EIS.

18. Defendant Seamans may be enjoined from providing any further federal funds which may be used to begin or continue any work on undisturbed areas of the project site. Arlington Coalition on Transportation v. Volpe, supra.

19. Defendant Guyan may be enjoined from beginning or continuing any work in undisturbed areas of the project site as a means of protecting the integrity of the court's federal jurisdiction. Arlington Coalition on Transportation v. Volpe, supra.

Relief

Therefore, based upon the findings above, the court ORDERS that defendant Seamans be enjoined from providing any further federal funds which may be used to begin or continue any work on undisturbed areas of the project site; and that both defendants be enjoined from continuing with any further disturbance of new surface areas at the project site at Griffithsville, West Virginia. This injunction does not extend to any work on those areas of the project site which have been disturbed heretofore. In other words, any operations which may continue without disturbing any new surface area at the project site may go forward.

It is further ORDERED that the defendant, Robert C. Seamans, shall compile an environmental impact statement according to the parameters of 42 U.S.C. § 4331 et seq., before any work shall commence on the undisturbed portions of the project site.

It is further ORDERED that the pendent claims of the plaintiffs be, and they are, dismissed from the complaint in this action, as such are more appropriate for state court determination and are, therefore, improperly before this court.

It is further ORDERED that there being no further relief requested in this action that this case be dismissed and stricken from the docket of this court.

The clerk is directed to send certified copies of this Order to all counsel of record.

1. This case has been ready for decision on the merits for more than a year. During that interim period both parties were engaged in extensive negotiations, and a great deal of reclamation was undertaken by the defendant, Guyan Oil Co. However, final resolution of the matter was not achieved; so by agreement of the parties the court will decide the merits of the preliminary injunction application based on the evidence adduced at the original hearings without the necessity of conducting additional hearings.