Legal Quagmire Over a Florida Swamp

A see-saw battle to save a Florida Swamp is being fought in the federal courts;¹ it stems from President Nixon's 1970 decision to terminate construction of the Cross-Florida Barge Canal. Proponents of the canal, notably persons with a financial stake in recreational development along parts of the planned 107-mile waterway, secured a preliminary injunction to prevent the Corps of Engineers from lowering the water level in an artificial lake that is part of the canal project, although the Forest Service considered this drawdown essential to save the thousands of hardwoods that are the basis of the swamp's ecosystem. The Fifth Circuit Court of Appeals, in a withering opinion, overturned the district court's grant of the injunction, but shortly before the decision was handed down, the district court had ruled on the merits in favor of the canal's backers, declaring the President's cancellation of the project an illegal violation of the separation of powers doctrine. The case will be appealed to the Fifth Circuit, but even if it again reverses the lower court, the all-important hardwoods may well have perished by then from prolonged submersion of their roots.

The tangled story of the Cross-Florida Barge Canal goes back to 1935, when the Roosevelt Administration, eager for public works projects with which to combat unemployment, conceived the plan. Work on the canal began in that year but soon stopped. Congressional authorization was not secured until 1942, when heavy losses of shipping to German U-boats in the waters off Florida made a short cut across the peninsula strategically desirable. Only in 1964, however, were funds finally appropriated for the project. Construction resumed, and four years later, Rodman Dam, designed to impound the waters of the Ocklawaha River and create an artificial lake for recreation, was completed. Of the 20 square miles flooded by the lake, known both as the Rodman Pool and Lake Ocklawaha, two square miles consist of hardwoods.

Environmentalists objected that the canal would purposelessly destroy a rare ecological treasure, and in 1969 the Environmental Defense Fund and the Florida Defenders of the Environment filed suit in the District of Columbia's federal district court to block the project. The court orally granted the plaintiffs' motion for a preliminary injunction halting construction, but before the order was formally entered, President Nixon, acting on the advice of the Council on Environmental Quality, ordered the project stopped. The decision, generally considered one of Russell Train's major achievements while Chairman of CEQ, was accompanied by a statement which represents on its face all that governmental decision making should be.

I am today ordering a halt to further construction of the Cross Florida Barge Canal to prevent potentially serious environmental damages.

The purpose of the Canal was to reduce transportation costs for barge shipping. It was conceived and designed at a time when the focus of Federal concern in such matters was still almost completely on maximizing economic return. In calculating that return, the destruction of natural, ecological values was not counted as a cost, nor was a credit allowed for actions preserving the environment. A natural treasure is involved in the case of the Barge Canal — the Ocklawaha River — a uniquely beautiful, semi-tropical stream, one of a very few of its kind in the United States, which would be destroyed by construction of the Canal.

The Council on Environmental Quality has recommended to me that the project be halted, and I have accepted its advice. The Council has pointed out to me that the project could endanger the unique wildlife of the area and destroy this region of unusual and unique natural beauty.

The total cost of the project if it were completed would be about $180 million. About $50 million has already been committed to construction. I am asking [4 ELR 10048] the Secretary of the Army to work with the Council on Environmental Quality in developing recommendations for the future of the area.

The step I have taken today will prevent a past mistake from causing permanent damage. But more important, we must assure that in the future we take not only full but also timely account of the environmental impact of such projects — so that instead of merely halting the damage, we prevent it.

But in the State of Florida, not everyone agreed that the "unique beauty" of the Ocklawaha was worth $130,000,000 in lost federal expenditures, least of all the state Canal Authority. The Authority moved to intervene as defendants in EDF's suit, alleging that the President's order had made it impossible for the federal defendants to oppose the environmentalists. At the same time, the Canal Authority filed suit in the Middle District of Florida, charging the federal officials with having wrongfully terminated the project. The Cross-Florida Canal Association brought a similar action. All suits relating to the Canal were then consolidated for trial in the Middle District of Florida.

Before the suits were consolidated, the Forest Service recommended that the water level of Lake Ocklawaha be lowered, to protect the partially inundated trees from destruction. The Canal Authority, as intervenor in the original suit, tried unsuccessfully to enjoin the drawdown of the lake. In the more congenial judicial climate of Florida, however, the Cross-Florida Canal Association did secure an injunction. After the suits were consolidated, the injunction was extended in September, 1971, subject to later modification.

In July, 1972, the court held four days of hearings on the federal defendants' request for a modification of the temporary injunction. The defendants' efforts were supported by a task force of more than fifty experts in various areas of science. The court granted the motion for modification, allowing a drawdown of five feet in the lake's level for the duration of the growing season, calculated to end December 1, 1972.

After the lake's level fell, a closer investigation of the trees showed that in the warm climate, root growth continued year round, so that only a permanent drawdown could prevent the death of as many as 120,000 trees. Since the other flora and fauna of the marsh depend on the canopy of tall hardwoods, the scientists predicted grave danger for the entire ecosystem of the swamp forest. The district court refused, however, to extend its modification of the injunction, and on January 12, 1973, ordered the lake returned to its previous level. The case was then appealed to the Fifth Circuit Court of Appeals, which on February 15, 1974, directed the District court to reexamine its refusal to extend the drawdown.

Judge Thornberry reviewed the well-known prerequisites for the issuance of a preliminary injunction and stressed that a preliminary injunction is an extraordinary remedy, requiring the moving party to show clearly that failure to issue the injunction would result in an alteration of the status quo serious enough to make subsequent judicial resolution of the issue impossible. The Court of Appeals noted that none of these factors was considered either in the original grant of the preliminary injunction or in the January 12, 1972 order that terminated the drawdown. In both cases, the district court erroneously placed the burden of persuasion, not upon the moving party, but upon the defendant government officials, acting in this instance as representatives of the environment. In the September 1971 order, the judge stated that the Government had failed to show that a temporary drawdown would preserve so many trees as to warrant refusing the injunction. In reinstating the injunction in January 1973, the same court observed that the federal defendants had not shown to a "probable environmental and ecological certainty" that ending the temporary drawdown would harm the trees. As Judge Thornberry pointed out, the defendants were not required to adduce even a preponderance of the evidence on the issue of irreparable harm, must less a "probable environmental and ecological certainty."

The factors which the district court did in fact consider were enunciated by the district court in language which deserves repetition if only for the perspective it offers on the attitudes of elements of the federal judiciary toward environmental law:

[T]he tree acreage involved in Population 5 is relatively small in terms of the area being merged into and made to constitute a part of the Ocala National Forest. It is must less in size than forest areas throughout the country which have often become the subject of devastation by fire ….

[W]ith the situation thus being . .. subject to the implication that it might perhaps be intended thereby to impose a self-death impression in the public mind (as the Canal proponents charged), it seemed probable that the Canal proponents would be entitled to some from of declaratory pronouncement or judgment, with the court regarding this probability as providing a supportive element both as to the issuance of the preliminary injunction and as to the refusal to modify it for the remainder of the 1971 growing season.

[R]efusal to reopen the question of the level of the Rodman Pool … will also prevent the Rodman Pool from continuing to be publicly symbolized and heralded on the basis of the attempt made to change its status quo, its conditions and its uses, as necessarily portending the doom and dismantling of the whole Barge Canal project and being psychologically used to sway public sentiment by those who have no concern about or responsibility for whether the adminisrative and judicial processes [4 ELR 10049] are afforded opportunity to properly dispose of the question.

The Fifth Circuit observed acidly that while the Ocala Forest was large, the ecology of the Ocklawaha River was dependent on the comparatively few trees lining its banks, and that the district court's inability to prevent forest fires nationwide is irrelevant to its responsibility with regard to destruction it can avert.

In remanding the case to the district court, Judge Thornberry reminded the lower court that when the appropriateness of a preliminary injunction is at issue, the status quo to be protected may not always be the situation at the time the injunction was requested, but may rather be the "last uncontested status quo between the parties," if that is most likely to prevent irreparable injury. He also noted ruefully that

the trees in Lake Ocklawaha have remained flooded, a condition which has contributed to their progressive deterioration. It is possible that the preliminary injunction, far from preventing the irreparable injury, has actually been causing it. we would regard this as a highly inequitable function for an equitable remedy.

The Fifth Circuit's evident concern for environmental values came too late to influence the lower court's judgment on the merits. On January 31, 1974, the judge ruled that President Nixon's cancellation of the project was void; that the impact statement prepared by the Forest Service and recommending against the canal was invalid; and that the President's failure to spend $150,000 appropriated by Congress in 1973 for further environmental study of the project was an illegal impoundment of funds.

The judge ruled that the artificial lake had environmental value of its own, particularly for recreational use, and that a NEPA impact statement was therefore required before the lake could be drained and the area returned to its natural state. He noted that even the temporary drawdown of 1972 had resulted in "the death of thousands of fish of estable and general-sport size," and had caused weed growth repellent to visitors, picnickers, campers, and adjacent landowners. The judge was not impressed by environmentalists' concern for saving the trees along the river; to restore the area to the climax forest conditions existing before the project would in any case take a long time. "Realistically," he added, "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." He directed that the existing status quo of the project be maintained pending preparation of an impact statement by the Corps of Engineers. The preliminary injunction against a drawdown of the artificial lake was made permanent, although the question was then before the Court of Appeals. The judge reasoned that Congress will be in a better position to judge the desirability of the project if the lake is left filled, and that aggrieved parties can always seek review in the Court of Appeals.

The district court's decision leaves environmentalists and the government in a dilemma. Having suffered a series of court defeats on the impoundment question, the government is understandably reluctant to take the issue to the court of appeals, while environmentalists, who have opposed the impoundment of billions of dollars appropriated under the Water Act, cannot now argue that withholding of the $150,000 earmarked for the environmental study was permissible. As a result, that portion of the judge's order will not be appealed, and the Corps of Engineers has already begun work on the study. EDF is hopeful, however, that the Fifth Circuit will reverse the lower court's rejection of the Forest Service's impact statement, and therefore uphold the Presidential decision to cancel the project on environmental grounds. Judge Thornberry's earlier ruling suggests that the court of appeals may not readily agree with the destrict court in placing higher environmental value on a six-year old artificial lake than on a primeval swamp forest. But appeals take time, and while the lawyers dispute, the ecology of the Ocklawaha River swamp suffers damage that may take decades to be repaired.

1. Canal Authority of Florida v. Callaway, 4 ELR 20259 (M.D. Fla. Jan. 31, 1974); 4 ELR 20164 (5th Cir. Feb. 15, 1974).