2 ELR 20357 | Environmental Law Reporter | copyright © 1972 | All rights reserved


Allison v. Froehlke

No. A-71-CA-84 (W.D. Tex. June 8, 1972)

Plaintiff property-owner sought to enjoin defendant Corps of Engineers' construction of the Laneport dam and reservoir on the San Gabriel River. Held, that significant alternations in the project plans reducing reservoir capacity and the cost-benefit ratio and increasing project cost fourfold are within the margin of error provided by the language of the authorizing act, "substantially in accordance with the recommendations of the Chief of Engineers." The environmental impact statement provides sufficient information to alert a decision-maker to environmental problems and thus satisfies NEPA. Where defendant's computation of the cost-benefit ratio was 1.2 to 1, plaintiff failed to produce any evidence showing a violation of the statutory requirement that benefits exceed costs. Preliminary injunction denied.

Counsel for Plaintiff C. C. Allison
Richard A. Shannon
P.O. Box 593
Suite 400
First Federal Savings Building
Austin, Texas 78767

Counsel for Plaintiffs Save Our Streams, Texas Explorers' Club, Bob Burleson, and Travis Audubon Society
Lloyd Doggett
1414 City National Bank Building
Austin, Texas 78701

Counsel for Defendants
William M. Cohen
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530

William S. Sessions, U.S. Atty.
Harold O. Atkinson, Asst. U.S. Atty.
P.O. Box 1701
San Antonio, Texas 78296

[2 ELR 20358]

Roberts, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Plaintiff, C. C. Allison, filed a complaint on August 13, 1971, seeking injunctive and declaratory relief under the following laws:

1. The Fifth and Fourteenth Amendments to the Constitution of the United States;

2. The National Environmental Policy Act of 1969, 42 U.S.C., § 4331, et seq;

3. The Environmental Quality Improvement Act of 1970, Public Law 91-224, 84 STAT 114;

4. The Historical and Archeological Preservation Act, Public Law 86-523;

5. The Act of June 23, 1936, 33 U.S.C. § 701a;

6. The Water Supply Act of 1958, as amended, 43 U.S.C., § 390b;

7.The Civil Rights Act of 1871, 42 U.S.C. § 1983;

8. The Act of June 20, 1938, 33 U.S.C. § 540.

B. Defendants in the suit were Stanley Resor (later Robert Froehlke), Secretary of the Army; General Frederick B. Clarke, Chief of Engineers, Corps of Engineers; Brigadier General Harold R. Parfitt, Division Engineer, Southwestern Division, Corps of Engineers, and Colonel Floyd H. Henk, District Engineer, Ft. Worth District, Corps of Engineers.

C. Plaintiff alleged in the complaint that he is a taxpayer and a citizen of the United States who resides in Travis County, Texas, who owns real property located in Williamson County, Texas, which he feared would be condemned if the Laneport dam and reservoir is constructed on the San Gabriel River

D. On October 6, 1971, Defendants filed a "Motion for Extension of Time for Filing Answer or Otherwise Pleading", which was granted insofar as allowing Defendants an extension to answer the cause. This Order was issued on October 7, 1971.

E. Defendants filed their answer in this cause on November 15, 1971. The issue having been joined, the Court on November 17, 1971, issued a Preliminary Order setting February 16, 1972, as the deadline for all parties to complete discovery and March 16, 1972, as the deadline for all parties to hold a preliminary pretrial conference of attorneys.

F. On December 10, 1971, plaintiff filed a Motion for Order Requiring Defendants to Provide Plaintiff with Notice of Issuance of Invitation to Bid of Construction Contract.

G. On December 14, 1971, plaintiff served a Request to Produce Documents on defendants.

H. Defendants filed a Motion to Dismiss with a supporting memorandum on December 22, 1971.

1. On January 10, 1972, defendants filed a Motion for Order to Postpone Both Discovery and Preliminary Pretrial Conference and to Quash Plaintiff's Request to to Produce Documents with supporting memorandum. Plaintiff on January 20, 1972, responded with memorandum opposing such Motion and opposing the above mentioned Motion to Dismiss.

J. On February 1, 1972, plaintiff filed a Motion for Order Requiring Defendants to File Final Impact Statement Simultaneous with Filing with the Council on Environmental Quality. Defendants on February 8, 1972, filed an affidavit by Colonel Henk in which Colonel Henk stated that a "draft" Environmental Impact Statement for the San Gabriel River Project was transmitted to the Council on Environmental Quality on September 3, 1971, and that such "draft" statement was circulated for comment and made available to Federal, State and local governmental bodies and was made available to the general public on request, and that no construction and no contracts for construction would occur prior to thirty days after the filing of the "final" Environmental Impact Statement filed with the Council on Environmental Quality. Such affidavit was used in support of defendants' January 7, 1972, motion seeking discovery postponement.

K. On February 9, 1972, defendants responded to plaintiff's December 14, 1971, Request to Produce Documents.

L. On February 16, 1972, this Court issued an Order Granting plaintiff's Motion of February 15, 1972, such motion asking for the completion deadline for discovery to be extended to sixty days following defendants' filing of the final Environmental Impact Statement with the Council on Environmental Quality.

M. On February 17, 1972, this Court denied defendants' above-mentioned Motion to Dismiss and Motion for Order to Postpone Both Discovery and the Preliminary Pretrial Conference and to Quash Plaintiff's Request to Produce Documents. On the same date, this Court denied Plaintiff's Motion for Order Requiring Defendants' Notice of Intent to Issue Invitations for Bids on Construction Contracts. On February 22, 1972, this Court ordered defendants to file their final Environmental Impact Statement with this Court simultaneously with its filing of said statement with the Council on Environmental Quality.

N. On February 29, 1972, Plaintiff filed a Motion for Preliminary Injunction with a supporting affidavit and memorandum, to which Defendants filed a response and a Memorandum in Opposition to Motion for Preliminary Injunction. Defendants filed an affidavit by Colonel Floyd H. Henk supporting Defendant's Response to Plaintiff's Motion for Preliminary Injunction of February 29, 1972. Plaintiff then withdrew the above-mentioned Motion for Preliminary Injunction by substituting another such motion on May 24, 1972. This second Motion for a Preliminary Injunction followed the filing of Plaintiffs' First Amended Complaint, which also prayed, among other things, for preliminary injunctive relief, and which added new Plaintiffs, namely Save Our Streams, Texas Explorer's Club, Bob Burleson and Travis Audubon Society.

O. Defendants filed their Defendants' supplemental Answer, Response to Plaintiffs' Prayer for Injunctive Relief, and Brief in Support of Defendants' Response Opposing Plaintiffs' Prayer for Injunctive Relief.

P. Hearing was had on June 2, 1972, in Austin, Texas, before this Court. The following are the findings of fact and conclusions of law of this Court after studying the pleadings and exhibits of all parties, the briefs of counsel, the affidavits submitted and the testimony and other evidence adduced at this hearing:

FINDINGS OF FACT

A. In the Flood Control Act of 1954, Congress authorized a system of eight reservoirs in the Brazos River Basin, Texas.

B. In 1962, Congress authorized the construction of the North Fork and South Fork reservoirs in conjunction with a modified Laneport reservoir in the San Gabriel River Watershed of the Brazos River Basin, Texas, "substantially in accordance with the recommendations of the Chief of Engineers in House Document Numbered 591 87th Congress, at an estimated (federal) cost of $20,250,000." (The Flood Control Act of 23 October, 1962, Public Law 874,87th Congress, 2d Session.)

C. Since 1962, plans for the San Gabriel River project have undergone significant alternations, including:

1. Reduction in the three reservoir combined total storage capacity;

2. Reduction in the three reservoir combined total storage capacity allocated to water conservation;

3. Decrease in the water supply yield;

4. Reduction of the estimated benefit-cost ratio from (2.8 to 1.0) to (1.7 to 1.0);

5. Increase in estimated construction costs to $87,800,000; and

6. Simultaneous construction of the three reservoirs rather than construction in stages.

D. The final Environmental Impact Statement prepared in good faith by the United States Army Engineer Division, Fort Worth, Texas, taken as a whole, provides sufficient information to alert the decision maker to problems which must be considered pursuant to 42 U.S.C. § 4332, including a discussion, albeit a distressingly brief one, of the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and of any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

E. There has been no showing that factors relevant to determination of the benefit-cost ratio of 1.7 to 1.0 including recreational benefits, or of 1.2 to 1.0 excluding recreational benefits, were disregarded in computation of that ratio or were omitted from the final Environmental Impact Statement.

[2 ELR 20359]

F. No evidence has been presented to indicate that Defendants have violated the Water Supply Act of 1958, 43 U.S.C. § 390b.

G.Plaintiffs have shown some probability of irreparable injury resulting from the letting of contracts, beginning June 8, 1972, to commence construction.

H. Defendants have shown a countervailing estimated irreparable injury of an estimated $49,000. a month, resulting from increasing construction costs.

CONCLUSIONS OF LAW

A. In order for a party to be entitled to extraordinary relief in the form of a preliminary injunction, he must show (a) that there is a substantial likelihood he will prevail on the merits, (b) that without relief he will suffer irreparable harm, (c) that the public interest favors relief, and (d) that no substantial harm would occur to other parties in the proceeding. Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 991, (D.C. Cir. 1958); Hamlin Testing Lab. Inc. v. AEC, 337 F.2d 221 (6th Cir. 1964).

B. The likelihood that plaintiffs will prevail on the merits is not substantial for the following reasons:

1. Such departures from the recommendations contained in House Document 591 as have been shown to have been made by the United States Army Engineer Division, Fort Worth, Texas in implementing the plans for this project fall within the "margin for error" built into the project by the language "substantially in accordance with the recommendations of the Chief of Engineers" appearing in the Act. The present plans for the project, so far as they have been shown to this Court, are accordingly within the authority granted by Congress. United States v. 2,606.84 Acres of Land in Tarrant County, Texas, 432 F.2d 1286, 1291-93 (5th Cir. 1970).

2. The purpose of Section 102 (c) of the National Environmental Policy Act [NEPA], 42 U.S.C. § 4332 (c), is to ensure that "the decision maker is fully aware of all the pertinent facts, problems and opinions with respect to the environmental impact of the proposed project", and the Environmental Impact Statement prepared by the U.S. Army Engineer Division, Fort Worth, Texas, in the present case meets the full disclosure requirements of the NEPA and is a record upon which a decision-maker could arrive at an informed decision." Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, No. LR-70-C-203 (E.D. Ark. 1972) (Memorandum Opinion No. Six at 7-9).

3. Plaintiffs have introduced no evidence showing that the benefit cost ratio of this project is less than the 1.2 to 1.0 ratio calculated by the Corps of Engineers, and consequently have not shown any violation of the requirements of 33 U.S.C. § 701a.

4. Plaintiffs have introduced no evidence showing a violation of the Water Supply Act, 43 U.S.C. § 390(b).

It appearing to this Court from the pleadings and exhibits of the parties, testimony and other evidence adduced at the hearing, that Plaintiffs' Motion for Preliminary Injunction is without merit, and it is accordingly

ORDERED that Plaintiffs' Motion for Preliminary Injunction be, and hereby is DENIED.


2 ELR 20357 | Environmental Law Reporter | copyright © 1972 | All rights reserved