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SIERRA CLUB v. UNITED STATES ARMY CORPS OF ENGRS.

August 7, 1985

SIERRA CLUB, HUDSON RIVER FISHERMEN'S ASSOCIATION, NYC CLEAN AIR CAMPAIGN, INC., THE HUDSON RIVER SLOOP CLEARWATER INC., THE CITY CLUB OF NEW YORK, BUSINESS FOR MASS TRANSIT, COMMITTEE FOR BETTER TRANSIT, INC., WEST 12TH STREET BLOCK ASSOCIATION, FRIENDS OF THE EARTH, OTIS BURGER, MARY ROWE, AND HOWARD SINGER, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, JOHN MARSH, as Secretary of the Army of the United States, E.R. HEIBERG, III, as Chief of Engineers, FLETCHER H. GRIFFIS, as New York District Engineer, UNITED STATES DEPARTMENT OF TRANSPORTATION, ELIZABETH DOLE, as Secretary of Transportation of the United States, FEDERAL HIGHWAY ADMINISTRATION, RAYMOND A. BARNHART, as Federal Highway Administrator, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LEE THOMAS, as Administrator of the Environmental Protection Agency, CHRISTOPHER J. DAGGETT, as Administrator, Region II of the Environmental Protection Agency, JAMES L. LAROCCA, as Commissioner of the New York State Department of Transportation, Defendants



The opinion of the court was delivered by: GRIESA

GRIESA, District Judge.

On March 31, 1982 and June 30, 1982 the court handed down opinions ruling that certain authorizations, which had previously been granted by the U.S. Army Corps of Engineers and the Federal Highway Administration for the Westway project in New York City, should be vacated. The Corps had granted to the State of New York a permit for landfill in the Hudson River, and the FHWA had approved the grant of 90% federal funding to the state for the project. The matters were remanded to the federal agencies for reconsideration pursuant to judgments dated April 14, 1982 and July 23, 1982.

The judgments enjoined the construction of westway, and federal funding for that construction, until and unless the agencies had remedied certain legal deficiencies in their proceedings regarding Westway.

 The opinions are Action For Rational Transit v. West Side Highway Project, 536 F. Supp. 1225 (S.D.N.Y. 1982), and Sierra Club v. U. S. Army Corps of Engineers, 541 F. Supp. 1367 (S.D.N.Y. 1982). The court of appeals affirmed the basic district court rulings, although it reversed on some points, mainly relating to procedural provisions of the judgments. Sierra Club v. U. S. Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983).

 The 1982 Judgments

 The April 14, 1982 judgment vacated the Corps of Engineers landfill permit for Westway. The judgment directed that, in the event that New York State reapplied for a landfill permit, the Corps would undertake further proceedings in accordance with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), and § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344 ("Clean Water Act"), and the regulations thereunder, to prepare and issue the necessary supplemental environmental impact statement ("SEIS") and consider whether a landfill permit should be issued.

 Paragraphs II.2.A and B directed that, as part of the remand proceedings, the corps should prepare an adequate SEIS, dealing with the impact of Westway on the Hudson River fishery resources, including striped bass, and also dealing with current information on such no-fishery subjects as current cost estimates, current plans for the use of the landfill area, new information regarding alternatives, and any new information regarding the relation of Westway to the development of the West Side. Subparagraphs C and D directed that, in connection with the fishery issue, the Corps should independently evaluate all existing data, and after consultation with the federal agencies having to do with fishery and environmental matters -- the National Marine Fisheries Service (NMFS"), the Fish and Wildlife Service ("FWS") and the Environmental Protection agency ("EPA"), the Corps should arrange for any additional studies necessary to evaluate the importance of the proposed Westway area of the Hudson River to the fisheries. Subparagraph F of the April 14, 1982 judgment directed:

 
F. During the course of its consideration of a landfill/ dredging permit application for Westway, the Corps of Engineers shall keep records of all activities, deliberations, and communications (including communications with the FHWA and any other federal official or agency) which occur in relation to such permit application.

 The July 23, 1982 judgment related to the FHWA. It vacated all actions taken by the FHWA in approving the design and location of Westway and federal funding for that project. The judgment prohibited the FHWA from granting any such approvals for Westway until a proper SEIS had been issued, and reconsideration had been given, in accordance with the applicable statutes and regulations, to the question of whether design and location and federal funding approvals should be granted for Westway. Paragraph II.4 of this judgment directed:

 
During the course of all proceedings had pursuant to this order, the FHWA, the New York State DOT, all administrative units of each, and all consultants and contractors employed by each, shall keep records of all activities, deliberations, and communications which occur in connection with the matters referred to in the Judgment of April 14, 1982 and the present Judgment. This is not intended to include law firms or the Department of Justice. It is understood that all parties subject to this provision reserve the right to claim all applicable privileges in respect to possible disclosure of the records maintained.

 Due to the evidence of serious misconduct committed by the federal agencies and the New York State Department of Transportation ("DOT") during the proceedings leading up to the the original grant of the landfill permit by the Corps and the original approvals of the FHWA, the court was of the view that a special master was required to exercise certain limited surveillance during the remand proceedings. The July 23, 1982 judgment appointed a special master and outlines his duties.

 Current Proceedings

 The Corps f Engineers and the FHWA have reconsidered the Westway matter. On January 24, 1985 the Corps decided again to grant the landfill permit for Westway. On February 25, 1985 this permit was issued. On March 18, 1985 the FHWA decided again to approve federal funding for Westway.

 The New York State DOT has moved to have the injunctions vacated on the ground that the agencies had now fully complied with the law and that valid federal authorizations for Westway are in effect. Plaintiffs opposed this motion, contending that the procedures of the federal agencies on remand had been legally deficient and that the purported authorizations were invalid. Plaintiffs have filed a supplemental complaint containing the allegations of wrongdoing. Defendants have denied the essential claims.

 An extensive trial has been necessary to resolve these issues, lasting from May 20 to July 12, 1985. There have been 30 trial days.

 Summary of Findings and Rulings

 1. Prior to the preparation of the supplemental EIS, the FHWA and the Corps of engineers agreed that the primary purpose of the Westway project was to satisfy transportation needs, although it was recognized that other benefits would accrue from the new land provided by the landfill, including residential and commercial development and also parkland. It was important to the FHWA to define the primary purpose of Westway in terms of transportation needs, because that agency's authority to provide federal funding was essentially limited to highway projects. In the SEIS, issued on November 27, 1984, and signed by both the FHWA and the Corps of Engineers, it was stated that Westway's primary purpose is to replace the new demolished West Side Highway, although there was again a discussion of attendant development benefits. The cost of Westway was estimated to be approximately $2 billion, 90% of which would be federal funded.

 In the decision of the District Engineer granting the landfill permit, issued January 24, 1985, it was stated:

 
Though FHWA has supported Westway over the years as a highway endeavor, in order to satisfy all of the goals desired of such a plan, it is better termed a "redevelopment" project.

 The District Engineer testified in court that Westway is not needed as a transportation project; landfill is not needed for transportation purposes. As far as transportation need are concerned, other possible highway designs would be practicable alternatives to Westway and would satisfy transportation requirements. The District engineer testified that the existing West Street/12th Avenue, now that the West Side Highway has been demolished, provides adequate transportation. Arterial highway designs for improvement of West Street/12th Avenue at the cost of $50 million (the estimate for a design called the "modified Arterial") would meet transportation needs. The FHWA presented no evidence to contradict these assertions. the State of New York has conceded in its Post Trial Memorandum that "Westway is not necessary to provide transportation along the lower West Side."

 The District Engineer, in his decision granting the landfill permit, stated that the non-Westway highway alternatives would not have any significant adverse environmental consequences of any kind. He specifically found that the current operation of West Street/12th Avenue, since the demolition of the West Side Highway, has not produced any significant adverse effects on air quality.

 By his own admission, if the District Engineer had characterized Westway as a highway project, he could not have granted the landfill permit. However, the District Engineer's decision denominated Westway as a redevelopment project. On this basis he found great benefits and no practicable alternatives, and decided that the landfill permit should be granted.

 The analysis of the District Engineer, as presented in his decision and in his court testimony, was far different from what had been presented in the SEIS. Under the statute (NEPA), the SEIS was required to publicly disclose the nature and purpose of the project and the kinds of alternatives that exist in light of the project's nature and purpose. The SEIS characterized the project as primarily related to transportation needs. The alternatives discussed were other highway designs with discussion of attendant benefits. The SEIS did not apprise the public of the positions now taken by District Engineer in his decision and court testimony. These are fundamental differences, not trivial ones.

 The SEIS should have, but did not, state that Westway is not needed for transportation purposes; that transportation needs can be satisfied by the existing roadway improved at a cost of $50 million; that the reason for the Westway landfill project, estimated to cost $2 billion, is redevelopment.

 What is stated here is not the view of some opponent of Westway. It is that of the District Engineer.

 Not only should this characterization of the project have been disclosed to the public in the SEIS, but the discussion of alternatives to Westway was required to be stated in terms of redevelopment. The choice among alternatives was basically the choice between real estate and park development through the Westway landfill project, recognizing that Westway is not needed for transportation purposes, and other types and degrees of development without westway. An analysis of this kind would inevitably have included a thorough discussion of potential private development, undoubtedly on a lesser scale than Westway, but at a lesser cost both in money and in effects on the environment, and without the expenditure of public funds. This analysis would have focused on the real issue and decision makers had to deal with.

 The SEIS in the present case largely avoided this issue and was thus materially deficient. The requirements of NEPA and the 1982 judgments of this court have not been complied with.

 2. With regard to the fishery question, the Corps of Engineers made findings in the Draft Supplemental Environmental Impact Statement ("DSEIS"), dated May 14, 1984, which would have required the denial of the landfill permit. The Corps found that the landfill would have a significant adverse impact on the aquatic environment -- specifically on the striped bass fishery. An adverse impact of his kind mandates denial of a landfill permit under the regulations issued pursuant to the Clean Water Act.

 Six months later, in the Final SEIS ("FSEIS"), issued on November 27, 1984, the Corps reversed itself and purported to find that the fishery impact would be minor and inconsequential, a conclusion which permitted the granting of the permit. In an attempt to avoid fully explaining this reversal, the corps has taken the position that there was not change in its basic conclusion as to impact and that the finding of minor impact was intended all along. The court finds this position incredible. There was unquestionably a fundamental change from the DSEIS to the FSEIS. No reasoned basis for the change has been shown. The court finds the conclusion of the FSEIS as to minor or inconsequential impact to be arbitrary, and a violation of NEPA and the 1982 judgments.

 There are certain additional reasons why the FSEIS, and the process leading up to it, failed to comply with the law and the 1982 judgments.

 In its fishery analysis the Corps relied in large part on a theory said to have originated with one William Dovel -- i.e., that the striped bass do not use Westway and the other interpier basins for overwintering, but simply as transient shelters in migrations in and out of the river. Dovel testified in support of this theory and stated that he had indeed proposed it to the Corps. However, the evidence shows that, prior to the time of the FSEIS, Dovel had drafted a written report which substantially contradicted the essential points of the theory, or indicated that they were not supported by existing data. The extent to which the Corps was apprised of the substance of the report is unclear. However, the Corps knew of the report, but did not request or obtain it.

 There is no valid explanation for the failure of the Corps to obtain the Dovel report. Another noteworthy feature of this matter is that the trial testimony of Dovel (the consultant relied on most heavily by the Corps), in trying to explain the discrepancies between the FSEIS and his report, was wholly irresponsible.

 Early in the remand the District Engineer had decided on a two-winter 17 month study of striped bass abundance in the Westway area and in the Hudson estuary. This decision was overruled by the Chief of Engineers and the Assistant Secretary of the Army, and only a 4 month study was allowed. The curtailed study did not provide data which supported the theory and analysis adopted by the Corps.

 The court finds that the Corps's analysis of fish movement, and of the degree of utility of Westway to the fishery, is unsupported by the existing data.

 The Corps failed to consult adequately with the federal fishery agencies and the relevant state agency, and failed to give full consideration to their views. Such consultation and consideration are required by law.

 3. Since the decision of the Corps to grant the landfill permit was based on an inadequate FSEIS, it was arbitrary, and in violation of NEPA, the Clean Water act and the 1982 judgments.

 Since the FHWA decision to grant federal funding was based on the inadequate FSEIS, it is in violation of NEPA and the 1982 judgments.

 4. The State's motion to vacate the 1982 injunctions is denied. A permanent injunction will be entered prohibiting (1) the grant of a landfill permit for Westway by the corps of Engineers, (2) federal funding for Westway by the FHWA, and (3) the construction of Westway by the State.

 Record Keeping

 In connection with the remand, it was the desire of the district court that all reasonable steps be taken to ensure the integrity of the process, so that the actions taken by the Corps and the FHWA would be final, and that further litigation would be unnecessary or minimal. Two of the means towards this end were the appointment of the special master and the requirement of the keeping of full records. The federal agencies appealed these rulings. the court of appeals reversed the appointment of the special master but affirmed the record keeping requirement.

 The 1982 judgments, requiring the keeping of "records of all activities, deliberations, and communications" which occurred in connection with the remand, were perfectly plain. They applied both within the agencies and to transactions with persons outside the agencies. The judgments required the recording of what occurred, not merely some notation about date, persons, etc. omitting all reference to the substance of what transpired

 The federal defendants moved in the district court to have the record keeping requirements eliminated from the judgments, and later this phase of the judgments was appealed. During these proceedings no question was raised about the scope and meaning of the directions. The issue was the legal power of the district court to impose such a requirement. In an opinion dated August 5, 1982, in which the district court denied a motion to remove the record keeping requirement, the court explained the necessity of the keeping of "full and accurate records during the further proceedings." The federal defendants indicated their understanding of the extent of the record keeping requirement in their brief to the court of appeals dated August 20, 1982, in which they stated (p. 43):

 
In a complex project of the magnitude of Westway, the requirement that agency personnel must record every contact or conversation, no matter how passing or inconsequential, is burdensome in the extreme.

 Of course, as it has turned out, the problems regarding record keeping have related to matters that are in no sense "passing or inconsequential."

 Colonel Fletcher H. Griffis, who assumed primary responsibility for the Westway matter as District Engineer for the Corps in the spring of 1983, gave a written direction to his staff, dated April 18, 1983. It quoted the court's order regarding keeping and then stated:

 
Under this order, all Corps personnel have a continuing obligation to maintain records of communications relative to the Westway permit processing. This obligation should be deemed to apply to contacts of any and all manner, with persons inside or outside the Corps. In order to insure compliance, it is recommended that at the end of each day, personnel review their Westway involvement as it related to this record keeping requirement and assure themselves that the records required by the court have been or are then made. Failure to comply with the court's record keeping order may subject the individual to severe penalties. A copy of any records made with respect to Westway must be sent to Dr. Suszkowski who is responsible for maintaining the central file for this action.

 Thus, Griffis directed that records be maintained as to "contacts of any and all manner, with persons inside or outside the Corps."

 The record keeping requirements, which were the subject of extensive debate in the district court and the court of appeals, and which were carefully considered by both courts, have been violated to a gross extent by the Corps of Engineers. As to the FHWA, the issues at the trial regarding this agency were somewhat limited, and there was very little inquiry about its record keeping. however, it must be said that certain events of importance in the FHWA were not recorded in accordance with the court's directions. With regard to the state of New York, no evidence has been presented at the trial a to any failure to comply with the record keeping requirement.

 To return to the question of the Corps, the seriousness of the Corps's violation of the court order can hardly be exaggerated. Since the trial which has been held was not a comtempt proceeding, but a trial on the merits of plaintiffs' claims under NEPA and the Clean Water Act, there has not been an exhaustive inquiry into the details of the Corps's failure to keep records. Indeed some records of some meetings and activities were kept by the Corps at certain periods of time. However, a substantial number of important meetings, discussions and activities were not recorded, or were noted by brief entry as to date, persons involved and perhaps the subject matter, without any record of the substance of what occurred. There were lengthy episodes in the deliberations within the Corps, involving questions of basic importance, where there was no record whatever of what occurred.

 Serious questions about the character of the deliberations within the Corps arose during the trial. The answers to these questions related very largely to what occurred in discussions and meetings, and what calculations and analyses were made by various people. Over and over the court was told that the required records of discussions and meetings were not kept. In many instances witnesses testified to calculations and analyses of data, which were not reduced to writing as required. In some cases the evidence showed that notes of meetings, and notes of work papers relating to calculations and analyses, were made but destroyed.

 The very problem, which the district court and the court of appeals sought to forestall in their 1982 and 1983 opinions, was brought to pass by the misconduct of the Corps. The development of the evidence has depended upon memories which are often said to have failed, and the questions of credibility have been compounded by this problem. There has been confusion from conflicting versions of events. The trial has been greatly lengthened and the issues have been clouded.

 Witnesses from the Corps, including Griffis, have sought to explain the record keeping problem by various means. Griffis testified that for "internal meetings" he required merely a note of the date, the persons present and the topics discussed, but not the substance of what occurred. Full records were made only of meetings with persons outside the Corps. The trouble with this testimony is that it contradicts his own directive of April 18, 1983. Moreover, there were numerous meetings, both inside the Corps and with persons outside, about which there was no record made at all.

 Framework For Remand

 In connection with the remand, the 1982 judgments directed that the agencies should deal not only with the fishery issue, but with non-fishery subjects where the circumstances differed from what they were at the time of the prior agency actions. The court of appeals modified the district court's ruling on the non-fishery subjects, holding that an order directing reconsideration of these specific subjects was unwarranted. However, the court of appeals ruled that the district court was empowered to order the agencies to determine whether non-fisheries subjects should be reconsidered. 701 F.2d at 1034-37. This issue was resolved by the fact that on July 18, 1983 the Government stipulated that it would reconsider, and treat in the supplemental EIS, all of the non-fishery subjects specified in the district court judgments.

 In connection with the supplemental EIS, the Corps and the FHWA acted as joint lead agencies. See 701 f.2d at 1041-42. In preparing the supplemental EIS, the Corps drafted the fishery material and the FHWA drafted the material on the non-fishery subjects.

 Clean Water Act and Certain Regulations

 It is appropriate at this point to set forth certain relevant provisions of the Clean Water act and pertinent regulations, since they bear in important ways on the matters described in the statement of facts.

 Section 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), provides that the Secretary of the Army, acting through the Chief of Engineers, may issue permits for the discharge of dredged or fill material into the navigable waters and specified disposal sites. Section 404(c), 33 U.S.C. § 1344(e), provides in substance that the Administrator of the EPA may veto a proposed landfill under certain circumstances. Section 404(b), 33 U.S.C. § 1344(b), provides:

 
(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary,

 Pursuant to § 404(b), the EPA has issued guidelines in conjunction with the Secretary of the Army, which are contained in 40 C.F.R. Part 230. These are known as the "404(b) Guidelines." They were revised in 1980.

 Section 230.1 of the Guidelines defines their policy and purpose, and provides:

 
(a) The purpose of these Guidelines is to restore and maintain the chemical, physical, and biological integrity of waters of the United States through the control of discharges of dredged or fill material.
 
(b) Congress has expressed a number of policies in the Clean Water Act. These Guidelines are intended to be consistent with and to implement those policies.
 
(c) Fundamental to these Guidelines is the precept that dredged or fill material should not be discharged into the aquaticecosystem, unless it can be demonstrated that such adischarge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.

 Under subsection (c), in order to obtain a landfill permit, an applicant must demonstrate that the landfill "will not have an unacceptable adverse impact" in ways stated in the subsection and further defined in other parts of the Guidelines.

 In this connection, § 230.10(c) provides in pertinent part:

 
(c) . . . no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States . . . . Under these Guidelines, effects contributing to significant degradation considered individually or collectively, include:
 
. . .
 
(3) Significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability. Such effects may include, but are not limited to, loss of fish and wildlife habitat. . . .

 Under this subsection no landfill will be permitted which will "cause or contribute to significant degradation" of the waters of this country. The subsection goes on to provide that "effects contributing" to such significant degradation include "significantly adverse effects" of the discharge of pollutants, and that such effects include loss of fish habitat. It is conceded by all parties in the present case that "pollutants," as referred to in this provision, include the kind of materials which would be used in the Westway landfill. See 40 C.F.R. 230.3(o).

 Section 230.10(a) of the Guidelines provides in pertinent part:

 
(a) . . . no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.
 
. . .
 
(2) An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

 In its consideration under the Clean Water Act, the Corps was first required to determine whether the landfill would be prohibited under the 404(b) Guidelines issued by the EPA. Then the Corps would determine whether the landfill would be in the public interest. THe Corps has its own regulations relating to its public interest review. These are contained in 33 C.F.R. Part 320. Section 320.4(a) provides in pertinent part:

 
(a) Public interest review. (1) The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.
 
. . .
 
(2) The following general criteria will be considered in the evaluation of every application:
 
(i) The relative extent of the public and private need for the proposed structure or work:
 
(ii) Where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work; . . .

 Another regulation of the Corps requires consultation by the Corps with certain other agencies in connection with landfill permit applications. 32 C.F.R. § 320.4(c) provides:

 
(c) Fish and wildlife. In accordance with the Fish and Wildlife Coordination Act . . . district engineers will consult with the Regional Director, U.S. Fish and Wildlife Service, the Regional Director, National Marine Fisheries Service, and the head of the agency responsible for fish and wildlife for the state in which work is to be performed, with a view to the conservation of wildlife resources by prevention of their direct and indirect loss and damage due to the activity proposed in a permit application.

 Following the quoted language there is another sentence, which prior to October 4, 1984 read:

 
They will give great weight to these views on fish and wildlife considerations in evaluating the application.

 Following the quoted language there is another sentence, which prior to October 4, 1984 read:

 
They will give great weight to these views on fish and wildlifeconsiderations in evaluating the application.

 As of October 4, 1984 this sentence was amended to read:

 
The Army will give full consideration to the views of those agencies on fish and wildlife considerations in deciding on the issuance, denial, or conditioning of individual or general permits.

 Comments on the amendment indicate that no substantive change was intended. 49 Fed. Reg. 39478 (Oct. 5, 1984).

 In connection with the requirements of NEPA and the necessary discussion of adverse environmental impacts in an EIS, the following regulations is of particular relevance to the present case. 40 C.F.R. § 1502.22(b)

 
(b)If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are exorbitant or (2) the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g., the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the fact of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurence.

 Facts

 The Fishery Study

  One of the first matters which faced the Corps of Engineers during the remand was the question of whether additional fishery studies should be carried out. The April 1982 judgment required that the Corps independently evaluate all existing data, and after consultation with FWS, NMFS and EPA, undertake any additional fishery studies which the Corps concluded were necessary.

  Certain concepts in connection with the fishery issue need to be set forth at this point. As the earlier court opinions describe in detail, the fishery issue involved with the proposed Westway project relates to juvenile striped bass, specifically to those in the first year of life called young-of-the-year (YOY) and those in the second year of life called yearlings (YR). The importance of the striped bass fishery, and the role of the Hudson River estuary as a spawning ground and as a habitat for juvenile striped bass, are well recognized and are described to some extent in the earlier court opinions.

  The basic question before the Corps on the remand was to assess the importance of the proposed Westway landfill area to the striped bass fishery, and the impact on that fishery which would result from the loss of this area. It was recognized throughout the remand proceedings that these questions broke down into two basic issues. The first issue required a quantitative estimate of the proportion of the juvenile striped bass using the Westway area in relation to the number of these fish which were using the estuary as a whole and certain waters just outside the mouth of the estuary. This kind of quantitative estimate has been referred to as an estimate of "relative abundance."

  It was recognized that an estimate of relative abundance would not necessarily provide the answer to what impact Westway would have on the striped bass. The fish mortality occurring as a result of the loss of Westway might be less, or it might be greater, than the proportion of the fish using Westway at a particular time. Various factors might affect how a particular level of fish mortality would be translated into impacts on the Hudson River striped bass stock and the Atlantic coast stock. Thus there was a second basic issue, which was closely related to relative abundance but still a separate question -- i.e., what ultimate impact would the loss of the Westway area have on the striped bass fishery?

  There was a consensus among the experts who were involved on the remand that, with an appropriate degree of sampling effort in the estuary, a reasonable relative abundance estimate could be arrived at. However, it was generally recognized that any quantitative estimate of fish mortality and of the ultimate impact on the fishery was beyond the state of the art. Thus, the latter issue would need to be resolved by what were called "qualitative" judgments, based upon assessments of the nature of the fish, their needs, their movements, and their use of the various habitats.

  The evidence in the trial of this action deal mainly with the period beginning with Colonel Griffis's assumption of responsibility for Westway at the Corps of Engineers in March 1983. However, it is necessary to note certain events that occurred prior to the time Griffis took over.

  In the initial stage of the remand process, the District Engineer was Colonel Walter Smith. His office retained Malcolm Pirnie, Inc. to analyze the existing fishery data and to develop a recommendation on the question of whether additional fishery studies would be needed, and if so what kind. Malcolm Pirnie rendered a lengthy report in August 1982. This report concluded that the available data were insufficient to provide a firm quantitative estimate of the proportion of juvenile striped bass in the Hudson River estuary which were using the proposed Westway landfill area. The report recommended two types of studies -- first, a fish sampling program to develop the quantitative estimate; and second, a habitat survey to assess the quality of the Westway area in comparison with other relevant areas. The report recommended that the first study should be for a minimum of three years and the second study for a minimum of one year.

  Subsequent to this report there were meetings involving the Corps, Malcolm Pirnie, NMFS, FWS and EPA. The participants in these meetings generally agreed that further studies were required, but that a two-winter study might be adequate.

  Malcolm Pirnie called a workshop of experts in October 1982 to further consider the matter. The fields of expertise represented were striped bass ecology, sampling design, statistics and hydroacoustics. The participants included a number of persons who would play further roles in the Westway matter: Leonard Houston, project biologist for the Westway matter: Leonard Houston, project biologist for the Westway proceeding in the District Engineer's office; John Reed of Malcolm Pirnie; Dr. Tibor Polgar of Martin Marietta Corp; Dr. Douglas Heimbuch and Dr. Joseph Mihursky of the Chesapeake Biological Laboratory, University of Maryland; Dr. Ian Fletcher and Dr. Richard Thorne of the University of Washington; Dr. James McLaren, an independent consultant; and William Dovel, of Mote Marine Laboratory, Sarasota, Florida.

  Immediately following this workshop, the participants, or at least some of them, met with representatives of FWS, NMFS, EPA, the New york state Department of Environmental Conservation, and the New Jersey Department of Environmental Protection.

  The result of these meetings was a recommendation to the Corps that there should be a 17 month, two-winter study to assess the relative abundance of overwintering juvenile striped bass in the proposed Westway area. The study would commence in December 1982 and conclude in April 1984. There was apparently no dissent by the participants as to the need for at least a two-winter study to assess relative abundance. The only apparent debate was whether this study should be longer and whether the qualitative habitat study, originally recommended by Malcolm Pirnie, should be included. The workshop experts and the agencies did not reach a consensus in favor of the habitat survey.

  Throughout the time that the matter of additional studies was being considered, the applicant for the landfill permit, New York Department of Transportation, made known its objections to any substantial program of this kind. Following the October workshop the DOT strongly objected to the proposed two-winter study. On December 1, 1982 Colonel Smith decided that the Corps would not perform further studies.

  On February 1, 1983 plaintiffs filed a contempt motion, alleging misconduct by the Corps and New York State DOT. In March 1983, in the course of preparing for the hearing on the contempt motion, the Department of Justice learned that Colonel Smith had been discussing possible future employment with DOT's ;prime engineering contractor, Parsons, Brinckeroff & Quade. The Justice Department promptly advised the court of this situation, and further advised that Colonel Smith was being removed from the Westway matter. Colonel Griffis, who was scheduled to become District Engineer in May 1983, would immediately assume responsibility for Westway. The decision of Colonel Smith against further fishery studies was vacated. Colonel Griffis was to consider anew the relevant questions, including the issue about further fishery studies.

  Griffis convened a workshop of experts in July 1983. The main purpose again was to consider whether further fishery studies should be carried out. The workshop was attended by 39 persons. There were representatives from the Corps, including Griffis and Houston, and from FWS, NMFS, EPA, the New york Department of Environmental Conservation, and the New York Department of Environmental Conservation, and the New Jersey Department of Environmental Protection. Of the independent experts attending the 1982 workshop Drs. Polgar, heimbuch, Fletcher, Mihursky and Messrs. Reed and Dovel attended the one in July 1983. Certain additional scientists attended. The majority of the participants favored the 17 month two-winter study proposal of the 1982 workshop. There was also some substantial backing for a qualitative survey of the various habitats.

  Griffis decided that the Corps should carry out the 17 month two-winter study to commence in December 1983. He also approved the habitat survey. Griffis appointed a Technical Steering Panel to work out the details of the fishery study and the method of analysis of the data. The panel consisted of leonard Houston of the Corps, the five experts outside the Corps, John Reed, Joseph Mihursky, Tibor Polgar, Douglas Heimbuch and James McLaren. All of these persons had attended both the 1982 and 1983 workshops, except for Dr. McLaren, who only attended the one in 1982.

  On September 13, 1983 Griffis wrote Governor Cuomo of New York that he had decided that "at least two winters of additional studies" were necessary. The letter stated:

  
I believe that only through the conduct additional studies will we be able to quantify the relative importance of the Westway interpier area as a fisheries habitat. The study results will increase our confidence in determining the ultimate survivability of the Hudson River striped bass population in relationship to displacement of fish caused by the proposed Westway fill.

  On September 23, 1983 Governor Cuomo wrote Secretary of the Army, John O. Marsh, Jr., objecting to the District Engineer's decision about additional studies, and requesting that the entire Westway landfill permit matter, including the question about fishery studies, be taken away from the District Engineer and decided by the Secretary. This initiated proceedings in Washington, which lasted through the fall of 1983. In connection with these proceedings, Assistant Secretary of the Army for Civil Works, William R. Gianelli, was in charge. The Chief of Army Engineers, Lieutenant General J. K. Bratton, was also involved.

  On October 4, 1983 Griffis met with Assistant Secretary gianelli, General Bratton and others. His view at that time was that he needed to do two years of study to prepare an adequate EIS, but that he was prepared to cut the study off earlier if developments during the study process warranted. Griffis stated at the meeting that he did not have enough data to prepare an EIS on Westway without the further study.

  Subsequent to the October 4 meeting, Bratton appointed a Task Force to consider the matter of the additional fishery studies. The Task Force did not include any of the experts who had expressed themselves in favor of the two-winter study. Griffis appeared before the Task Force on October 31, 1983, and again explained the reasons for the two-winter study. He explained, among other things, that various attempts had been made to do a "worst case" relative abundance estimate for the juvenile striped bass in the Westway area. Griffis advised the task force that these attempts had produced figures ranging from 1% to 50%, and that none of these estimates was usable. Griffis also discussed the habitat studies, which had been proposed by the experts.

  In a meeting with Bratton on December 6, 1983 Griffis stated that the existing data and the relative abundance estimates provides thus far would not support either a denial or an approval of the permit -- the simply would not support a decision.

  On December 6, 1983 the Task Force submitted its report to Bratton. The report did not make a definite recommendation, but presented three alternative courses of action -- (1) to conduct the studies decided upon by Griffis; (2) to conduct no further studies; and (3) to conduct studies, but either more or less than those proposed by Griffis. All three conclusions were supported with equal eloquence, asserting various opposite propositions. The body of the report (prior to the alternatives) was extremely cautious and most statements of interest were loaded with qualifications. However, a few points are worth noting. The report did recognize that an assessment of relative abundance for striped bass in the Westway area would be essential for determining the impact of Westway, and that the studies proposed by Griffis would yield the most statistically reliable results on this question. This would eliminate the need for relying upon "numbers which do not have any statistical confidence value associated with them." However, the report stressed the cost of the studies, estimating the direct cost to be $9 million. In addition the report accepted the argument of the State that there would be large costs incurred in delaying the benefits of Westway. A figure of $60 million was ...


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