Pacific Legal Foundation v. Andrus

No. 77-1054-C-Cv (M.D. Tenn. May 24, 1979)

The court dismisses a suit seeking an injunction requiring defendants to prepare an environmental impact statement in conjunction with the listing of certain mollusks in the Duck River as endangered species. The listing could serve to prohibit continuation of the proposed Columbia Dam under § 7 of the Endangered Species Act (ESA). Regarding the issue of standing, all plaintiffs, with the exception of the Pacific Legal Foundation (PLF), will suffer direct personal injury if the requested injunctive relief is denied and the dam project is not completed. PLF has no members residing in the area affected by the project, however, and thus has no standing. The court determines that there is a statutory conflict between the procedural mandates of the ESA and the requirements of the National Environmental Policy Act (NEPA). In view of this conflict, the court holds NEPA to be inapplicable to the listing of endangered species under the ESA. The court also notes that the 1978 amendment to the latter statute, which established an exemption procedure, has no application to actions, such as those in this case, that were taken prior to its enactment. Furthermore, the court points out, plaintiffs have not asserted that defendants have violated any provisions of the ESA.

Counsel for Plaintiffs
Lon P. McFarland
Mid-Tennessee Bank Bldg., Columbia TN 38401
(615) 388-3215

Donald C. Simpson
Pacific Legal Foundation,
1990 M St. NW, Washington DC 20036
(202) 466-2686

Counsel for Defendants
David C. Cannon, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2846

Hal Hardin, U.S. Attorney
879 U.S. Courthouse, Nashville TN 37203
(615) 251-5151

[9 ELR 20413]

Morton, J.:

I. Introduction

The instant action involves a challenge under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA). Plaintiffs' position is that the listing and proposed listing by the Secretary of the Interior of certain species pursuant to the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA), as endangered are major federal actions significantly affecting the quality of the human environment because such listings allegedly will stop or delay construction of the Columbia Dam project. Accordingly, plaintiffs contend that such listings require preparation of an environmental impact statement (EIS). The species involved are freshwater mussels and snails that inhabit the Duck River in Middle Tennessee, which is the site of the Columbia Dam project.

Plaintiffs are comprised on the Pacific Legal Foundation, a California-based public interest organization, the City of Lewisburg, Tennessee, the Columbia, Tennessee, Board of Public Utilities, and eight individual residents of the Columbia area.

Defendants in the action are Secretary of the Interior Cecil D. Andrus and Lynn A. Greenwalt, Director of the United States Fish and Wildlife Service.

Plaintiffs filed their complaint on December 13, 1977. The complaint alleges violations of NEPA, first, by failure to file an EIS and, second, by failure to promulgate specific NEPA regulations for the endangered species program. Plaintiffs have asked the court for a declaratory judgment that: (1) defendants are required to prepare an environmental impact statement on the listing of endangered mollusks found in the Duck River, (2) the documents relied upon by the defendants in listing the endangered mollusks and proposing to list as endangered the five river snails found in the Duck River were inadequate under NEPA, and (3) defendants are in violation of NEPA by listing or proposing to list endangered species without preparing an EIS.

Plaintiffs also seek injunctive relief in the form of an order directing defendants to remove the seven endangered mollusks found in the Duck River from the list of endangered and threatened species and further directing defendants to comply with NEPA by preparing an EIS on the listing of any endangered species in the Duck River and by promulgating regulations implementing NEPA as to the Endangered Species Act.

Plaintiffs further seek to have the defendants enjoined from enforcing any provisions of the Endangered Species Act as to the mollusks or river snails involved in this action and to have defendants enjoined from listing any other endangered species in the Duck River until there has been NEPA compliance.

II. The Duck River Project — Columbia Dam

According to records maintained by the U.S. Geological Survey, the Duck River has historically been characterized by wide fluctuations in water flow. The river's seasonal cycle is characterized by winter/spring high water and flooding, while low flow volume conditions are experienced in the late summer and fall. Flood stage has been exceeded most years and more than once in a number of years. This same river, however, frequently has depths measures in inches; many of its tributaries are completely dry three to four months of the year.

For many years, TVA had attempted to identify and find solutions to the basic problems of flood control and water supply in the Upper Duck River Area. In 1964 a concentrated cooperative effort began through the formation of the Upper Duck River Development Association, a nonprofit association of citizens of approximately 2,000 members with leaders from Bedford, Coffee, Marshall, and Maury Counties (the "Four-County Area").

In March 1965 the Tennessee legislature created the Tennessee Upper Duck River Development Agency (TUDRDA) and gave it responsibilities for formulating and carrying out plans and programs for developing the resources of the area. In 1966 the Tennessee State Planning Commission designated the Four County Area as a planning region and created the Upper Duck River Regional Planning Commission to serve it.

TVA and these Tennessee organizations have jointly cooperated to arrive at a comprehensive plan including two dams to be built on the Duck River. These dams would be operated as a unit as part of the TVA water control system.

On December 11, 1969, Congress appropriated initial funds for the construction by the TVA on the Duck River of the Duck River Project, consisting of the Normandy and Columbia Dams and Reservoirs. Since that time Congress has continued appropriating funds for the project. Construction of the Normandy Dam has been completed and the reservoir impounded, and construction of Columbia Dam is underway.

On July 1, 1971, TVA and TUDRDA entered into a contract (No. TV-35326A) pursuant to the TVA Act whereby TVA agreed, subject to appropriation by Congress, to construct the Duck River Project and the agency agreed to use its best efforts to secure $50 million on nonfederal investment in approved development projects within 10 years after closure of Normandy Dam and to repay $16.2 million for the costs of the project attributable to water supply.

On September 13, 1971, a number of cities entered into a contract with TUDRDA (with TVA as a third-party beneficiary) whereby TUDRDA agreed, subject to its contract with TVA, to provide a water supply for these cities from the Normandy and Columbia Reservoirs and the cities agreed to make payments into a trust fund until TUDRDA's $16.2 million water supply payment obligation to TVA is satisfied. Columbia, Lewisburg, and other cities have made and are making such payments.

The purposes to be achieved by the Duck River Project and the contracts include reducing flooding on urban and agricultural lands, providing a more dependable supply of water of generally improved quality for municipal and industrial use, creating a broad range of new recreational and fish and wildlife opportunities, stimulating higher and better land use, and creating opportunities for more productive employment of the local labor force. These ends are among the statutory purposes that TUDRDA was created to promote.

[9 ELR 20414]

The decision to construct the Duck River Project was a major federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act, and TVA accordingly prepared an environmental impact statement on the project. A court challenge to the EIS filed in 1972 was concluded by a finding that the final EIS, including a supplemental EIS, fully satisfied the requirements of NEPA. Duck River Preservation Association v. Tennessee Valley Authority, 410 F. Supp. 758 (E.D. Tenn. 1974), aff'd, 529 F.2d 524 (6th Cir. 1976). The Department of the Interior commented on TVA's Environmental Impact Statement on the Duck River Project.

III. Listing and Proposed Listing of Duck River Species as Endangered

On October 17, 1974, the Fish and Wildlife Service (Service) published a Notice of Review in the Federal Register stating that it had evidence indicating 61 species and subspecies of mollusks and crustaceans might be threatened or endangered species as defined by the Endangered Species Act of 1973.

Among those 61 species were six species of mollusks found in the Duck River and involved in this lawsuit. The common names of these mussels are (1) the Birdwing Pearly mussel; (2) the Yellow-blossom Pearly mussel; (3) the Turgid-blossom Pearly mussel; (4) the Orange-footed Pimpleback Pearly mussel; (5) the Cumberland Monkeyface Pearly mussel; and (6) the Pale Lilliput Pearly mussel. The corresponding scientific names are: (1) Conradilla caelata; (2) Epioblasma (Dysnomia) florentina; (3) Epioblasma (Dysnomia) turgidula; (4) Plethobasis cooperianus; (5) Quadrula intermedia; and (6) Toxolasma (Carunculina) cylindrella.

The Notice of Review indicated that the Service was initiating a review of the status of each of these species to determine whether they should be proposed for listing as threatened or endangered and requested all interested parties to submit factual information germane to the review on or before January 16, 1975.

On May 22, 1975, the Fund for Animals, Inc., submitted a petition to the Service requesting that those species appearing on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora that were not already listed as endangered species pursuant to the Endangered Species Act be so listed.

On September 26, 1975, the Service published a notice of proposed rule making which proposed to list as endangered 216 species appearing on Appendix I of the Convention on International Trade. Among those species were the six mollusks described above and the Tan Riffle Shell, which was listed on Appendix I under the common name of Brown-blossom Pearly mussel. Persons interested in participating in the rule making were requested to submit their comments to the Service on or before October 28, 1975.

On June 14, 1976, the Service published a final rule making which listed as endangered 159 taxa of U.S. and foreign vertebrates and invertebrates that were listed in Appendix I of the Convention on International Trade. This action was taken pursuant to a determination by the Service that 159 of the 216 species listed on Appendix I were in danger of extinction and therefore eligible for listing as endangered. The six mollusks were thereby added to the List of Endangered and Threatened Species.

On January 12, 1977, the Service published a notice of proposed rule making which proposed to list 13 taxa as endangered species and 28 taxa as threatened species and to determine critical habitat for 18 of these species. Among these species were five river snails found in the Duck River. As of this time there has been no final rule making listing any of the five river snails found in the Duck River as endangered or threatened under the Endangered Species Act.

After the six Duck River mollusks were listed as endangered species, the Tennessee Valley Authority and the Fish and Wildlife Service undertook consultation pursuant to § 7 of the Endangered Species Act to determine whether construction of the Columbia Dam would jeopardize the continued existence of the endangered species. On February 16, 1977, the Director of the Service issued a Biological Opinion concluding that completion of the Columbia Dam would jeopardize the continued existence of the six endangered mussels in violation of § 7 of the Act.

The Service has also communicated to the Army Corps of Engineers that, because completion of the Columbia Dam would jeopardize the continued existence of the endangered mussels, the Corps should deny any application to it for a permit for the discharge of fill material into a navigable stream in connection with the project. Such permits must be obtained from the Army Corps of Engineers pursuant to § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344.

In the closing days of its 1978 session, Congress amended the ESA in an attempt to avoid the consequences of TVA v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 [8 ELR 20513] (1978). In that case construction was halted on the Tellico Dam in East Tennessee because a species of fish known as the Snail Darter was threatened with extinction. The Supreme Court found that Congress had provided no exemption that would allow the TVA project to override the statutory protection of the endangered species. Section 7 of the ESA as amended after Hill provides an exemption procedure for federal projects where a conflict arises between the existence of endangered species and the completion of the project. 16 U.S.C. § 1536 as amended in 1978. Application for this exemption may be made, after consultation pursuant to § 7 has failed to resolve the conflict, by the federal agency, the governor of the state in which the project is located, or an applicant for a permit or license. None of the parties authorized under the statute to apply for an exemption for the Columbia Dam had done so at the time of the hearing in this case.

Public interest groups concerned about environmental preservation became aware of the Director's Biological Opinion on the Duck River species and of TVA's apparent violation of § 7 of the Endangered Species Act. The Environmental Defense Fund communicated its concern about the fate of the Duck River species by letter to the TVA dated April 18, 1977.

On August 23, 1977, the Service published a final rule making which determined the Tan Riffle Shell was an endangered species, thus bringing the number of mussel species threatened by the Columbia Dam to seven. The Service has not, however, designated any "critical habitat" for the endangered mussel species found in the Duck River.

On December 21, 1978, S. David Freeman, the Chairman of TVA, wrote Secretary of the Interior Cecil D. Andrus to inform him that TVA was reinitiating § 7 consultation with the Interior to resolve the apparent conflict between construction of the Columbia Dam and the existence of endangered mussels, concluding:

TVA enjoys a good working relationship with your staff, and we solicit your continuing help in resolving the conflicts between the Columbia project and Endangered Species Act. We believe this project deserves a very high priority and the TVA Board stands ready to consult with you personally at an appropriate time. We are determined to do everything in our power to remove or clarify the constraints on the Columbia project as promptly as possible under existing laws.

IV. NEPA Compliance

The Department of the Interior (Interior) has implemented procedures for NEPA compliance in all of its program. See Department Manual 516.2.

As concerns the instant case, the Fish and Wildlife Service has issued a Negative Declaration concluding that the determination to list the 159 taxa as endangered species in June of 1976 was not a major federal action significantly affecting the quality of the human environment within the meaning of NEPA § 102(2)(C). This conclusion was based upon an environmental assessment prepared on the proposal to list the 159 taxa as endangered, comments received in conjunction with the rule making, and upon a final environmental impact statement prepared on the proposed Endangered Species Conservation Act of 1973.

On May 10, 1977, the Director of Fish and Wildlife signed a negative declaration concluding that the listing of the Tan Riffle Shell as an endangered species was not a major federal action significantly affecting the quality of the human environment so as [9 ELR 20415] to require the preparation of an environmental impact statement. That conclusion was based upon an environmental assessment prepared on the proposal to list the Tan Riffle Shell as an endangered species, the final environmental impact statement on the proposed Endangered Species Conservation Act of 1973 and upon public comments received on the proposed rule making.

The Service is presently preparing a programmatic EIS for the entire endangered species program. This programmatic EIS will examine the environmental impacts and consequences of the endangered species program and will serve as a general decisionmaking document for future activities of the Service under the ESA.

V. Conclusions of Law

Jurisdictional bases for this action include 5 U.S.C. § 706 and 28 U.S.C. §§ 1331 and 1361. See Harlem Valley Transportation Association v. Stafford, 360 F. Supp. 1057, 1059 n.1 [3 ELR 20639] (S.D.N.Y. 1973), aff'd 500 F.2d 328, 330 [4 ELR 20638] (2d Cir. 1974); Coahoma Chemical Co. v. Ruckelshaus, 358 F. Supp. 680, 681 (N.D. Miss. 1973). See also Scenic Rivers Association v. Lynn, 520 F.2d 240, 245 [5 ELR 20536] (10th Cir. 1975), rev'd and remanded on other grounds sub nom. Flint Ridge Development Co. v. Scenic Rivers Association, infra.

All plaintiffs, except Pacific Legal Foundation, will suffer direct personal injury in fact if the Columbia Dam project is not completed. Thus they have standing in this cause. Pacific Legal Foundation has no members residing in the affected area and thus it will not suffer any injury in fact not shared by all citizens of this country. It therefore has no standing. See Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970).

In addition to the fact that thousands of lives will be affected and many millions of dollars will, at least potentially, be lost by the implementation of the Secretary's action described in this cause, Congress has specifically found that the loss of any endangered species is environmentally significant, thus the preservation thereof is a major federal project. See 16 U.S.C. § 1536; TVA v. Hill, supra, 437 U.S. at 171-79 and n.34. Therefore this project would, except as hereinafter noted, be subject to the National Environmental Policy Act.

Where there is a conflict between a statutorily mandated purpose and the provisions of the NEPA, the statutory mandate takes preference. Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, 96 S. Ct. 2430, 49 L. Ed. 2d 205 [6 ELR 20528] (1976).

Congress by specific and positive language in the ESA stated that the Secretary of Interior using specific criteria shall determine whether any species is endangered. It also delineated a specific procedure to be followed in making such determinations. See 16 U.S.C. § 1533. This procedure is in some aspects similar to the requirements of NEPA. However, Congress delineated not only the procedure, but also the type of input from the public, agencies, and individuals, plus some time limits for response. It did not state or indicate that the procedure and timetable would be altered, modified, or supplemented by the provisions of NEPA. Instead, after an evolution of congressional action from 1966 to 1973, "the Secretary of Interior is vested [under the ESA] with exclusive authority to determine whether a species . . . is 'endangered' or 'threatened' and to ascertain the factors which have led to such precarious existence. By § 4(d) Congress has authorized — indeed commanded — the Secretary to 'issue such regulations as he deems necessary and advisable to provide for the conservation of such species.' 16 U.S.C. § 1533(d) (1976 ed.)." TVA v. Hill, supra, at 174-76.

In the case sub judice the Secretary issued such regulations and is in the process of implementing them. Congress did not, as is contended by plaintiffs, request that the Secretary prior to the performance of his mandated duty follow the provision of NEPA by preparing an environmental impact statement. On the contrary, after indicating that it intended that endangered species be afforded the highest of priorities (TVA v. Hill, supra, 437 U.S. at 174), Congress set forth the procedural steps to implement its desires. The command is clear. The urgency is declared by Congress. This court, the Secretary, and others cannot add to or subtract from the procedures set out in the Act. Thus any action by the Secretary construed as a recognition of the application of the NEPA to require an environmental impact statement is of no effect. As stated in 16 U.S.C. § 1531(b), Congress prepared a program for the conservation of endangered species. This it had the power to do. To the extent that any other statutory procedure conflicts with the procedure so outlined, it is inoperative. See Flint Ridge Development Co. v. Scenic Rivers Association, supra.

The 1978 amendment to § 7 of the Endangered Species Act, 16 U.S.C. § 1536, has no application to actions of the Secretary of the Interior (or his authorized representatives such as the Director of Fish and Wildlife) finalized prior to the amendment. The amendment is thus inapplicable to the actions taken to that point concerning the Duck River species. The legislative history of the amendment is, nonetheless, enlightening as to the legal status of those actions and, of course, provides important indications of the significance of the amendment for future actions, especially any designation of "critical habitat" for the endangered species.

In the House Report it is stated that some of the purposes of the amendment are to introduce some flexibility into the Act, revise notice procedures to improve public notice of proposed listing, require public hearings and require a review of the endangered species list every five years. H. REP. NO. 95-1625, 95th Cong., 2d Sess., pages 1, 3-4, reprinted in [1979] U.S. CODE CONG. & AD. NEWS 9631, 9631-32. In commenting on the Act prior to the amendments, the report contains the following language:

Any proposed listing, delisting, or reclassification is published in the Federal Register, and the public is given at least 60 days in which to comment. Individuals may request a public hearing on a proposed listing, but the Secretary has the discretion to deny the hearing request. The Department has held six public hearings on listing proposals, and they have denied five requests for hearings. The Director of the Fish and Wildlife Service recently announced that all future proposed designations of critical habitat would be accompanied by a hearing in the local area.

Following the review of comments and evaluation of the best available biological data the Department may publish a notice of final rulemaking in the Federal Register. Regulatory proposals generally become effective 30 days after publication of the final determination in the Federal Register.

Id. at 6, U.S. CODE CONG. & AD. NEWS at 9634.

As the Act is currently written, critical habitat is determined solely on the basis of biological factors. The Secretary has no discretion to alter a critical habitat designation on the basis of the effect that such designation may have on the area. In many cases, the designation of critical habitat may have little or no impact on activities within the area of the habitat. Whether a specific action may violate section 7 depends on a biological analysis of the impact of the activity on the listed species or its habitat.

Id. at 10, U.S. CODE CONG. & AD. NEWS at 9638.

The legislative history contains an analysis of some of the judicial decisions interpreting § 7 of the Act prior to any amendment. It contains this concluding statement: "These cases also make it clear, however, that the determination of whether a particular activity violates section 7 is made irrespective of the economic importance of the activity." Id. at 11, U.S. CODE CONG. & AD. NEWS at 9639.

Congress clearly recognized the lack of general flexibility in the 1973 Act and decided to make certain limited changes. Its concern for the emergency listing of endangered species was not lessened. But it did emphasize the importance of the designation of "critical habitat" of the species. As to this facet the recognition of economic import of such action by the Secretary received substantial consideration which resulted in legislative action. But in so doing Congress did not indicate the intent to void any previous actions of the Secretary in listing endangered species.

[9 ELR 20416]

Since defendants have not yet designated critical habitats for the species of mollusks and river snails found in the Duck River and since plaintiffs do not assert that the Secretary has not complied with 16 U.S.C. § 1531 et seq., this court declines to issue the injunction, and the case is dismissed.

Order

In accordance with the memorandum contemporaneously filed, this case is DISMISSED.