quality to the location of their former residences and reasonably accessible to their places of employment.
A relocation assistance advisory program serving displacees of the Tioga-Hammond Project, as well as those of the nearby Cowanesque Project, likewise under the aegis of the Corps, has been in existence since soon after land acquisition began in 1969. The program and its implementation have complied in all respects with the requirements of the Uniform Relocation Assistance Act. Although 230 of the 259 families displaced by the project have relocated, no witness testified that he was displaced prior to the Corps' providing him with an opportunity to acquire or rent a decent, safe, and sanitary alternative dwelling in an area comparable to his former residence. With respect to this project, there is no likelihood that the Corps will, in the future, displace any individual in violation of the Uniform Relocation Assistance Act. Consequently, there is no necessity for injunctive relief covering the Corps' relocation efforts.
Where there is inexcusable delay in the filing of an injunction suit to the prejudice of other parties, laches acts as a bar to that action. Clark v. Volpe, 342 F. Supp. 1324 (E.D.La.), aff'd 461 F.2d 1266 (5th Cir. 1972). The doctrine of laches is a recognized defense in an environmental suit in this Circuit. Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238 (M.D.Pa.1970), aff'd 454 F.2d 613 (3d Cir. 1971); Harrisburg Coalition against Ruining the Environment v. Volpe, 330 F. Supp. 918 (M.D.Pa. 1971). Laches is determined in the light of all the existing circumstances and, in order for it to be invoked, there must be unreasonable delay which would lead to prejudice to opposing parties if injunctive relief were granted. Sobosle v. U. S. Steel Corporation, 359 F.2d 7 (3d Cir. 1966); Pennsylvania Environmental Council v. Bartlett, supra.
The evidence is overwhelming that members of the Plaintiff group had or should have had knowledge of the proposed plans for the dams, the highway, and the protective works. Numerous public meetings, discussions with elected officials, articles in newspapers of general circulation in the area, and display models all were used over a period of years to bring those matters to the attention of the general public. Massive construction work has been going on for years. The assertion by representatives of the Plaintiff that the extent of the impact on Smythe Park only recently became public knowledge is unsupported by the evidence.
Of great weight is the proof that the Corps would be substantially harmed by the issuance of an injunction on grounds which were available long ago but were tardily invoked. Nearly half of the project's expected outlays of $157,700,000 have been made; most contracts for future work have been awarded; the dam foundations have been excavated and borrow areas for the rock and earth to be used in the dams have been opened; and land acquisition and relocation of displaced persons is nearly complete. Delay itself is always costly but, in this situation, it would be compounded by the extent of the work already done and the number of sub-contractors and workers involved.
Under the circumstances of this case, the Court is of the view that it would be inequitable to permit the Plaintiff to proceed with this suit. To the detriment of the Corps, the members of the Plaintiff group have unreasonably delayed filing this suit. In the absence of any protest to its actions, the Corps has, over the years, continued to commit itself extensively with respect to this project. Cf. Holmberg v. Armbrecht, 327 U.S. 392, 66 S. Ct. 582, 90 L. Ed. 743 (1946). This Court has previously stated in a NEPA suit, where, however, no issue of laches was raised, that "Federal action affecting the environment, if requiring an environmental impact statement, must be enjoined pending preparation of such a statement unless rare and unusual circumstances exist." Concerned Residents of Buck Hill Falls v. Grant, 388 F. Supp. 394 (M.D.Pa. 1975). But, even if that statement, made in the context of a suit against a proposed dam, is applicable to this situation, the Court is of the view that the extent to which this project has progressed and the Plaintiff's inordinate tardiness in bringing suit are such "rare and unusual" circumstances. In Steubing v. Brinegar, 511 F.2d 489 (2d Cir. 1975) and I-291 Why? Association v. Burns, 372 F. Supp. 223 (Conn.1974), the plaintiffs failed to file their suits soon after plans for the projects in question were made known to the public. Their delays were nevertheless excused because "positive developments" such as tree removal or dredging did not actually occur to "galvanize" opposition until a short time before the filing of the suits. However, in this case, such "positive developments" at the Tioga-Hammond Dam site occurred years ago.
Even if one concedes that environmental litigation enjoys a special status with respect to laches, cf. I-291 Why? Association v. Burns, supra ; Steubing v. Brinegar, supra ; Life of the Land v. Volpe, 363 F. Supp. 1171, 1176 (D.C.Hawaii, 1972), aff'd 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1974); Arlington Coalition v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972), the public interest nature of the Plaintiff's suit is insufficient to overcome the application of that doctrine to this case. It must be noted that the Plaintiff does not have a corner on the public interest surrounding the project. Consequently, there is great doubt that the Plaintiff could carry its burden if the question of harm to the public interest were reached for purposes of determining the propriety of an injunction. Ammond v. McGahn, 532 F.2d 325 (3rd Cir. 1976); A. O. Smith Corp. v. FTC, 530 F.2d 515 (3rd Cir. 1976). The protection which these dams will provide to downstream residents and property which would be delayed by the issuance of an injunction is unquestionably significant and may outweigh concerns advanced by the Plaintiff.
The Plaintiff seeks to avoid the doctrine of laches by arguing that the Court can tailor its injunctive relief in such a way as to minimize the harm to the Defendants. It argues that the Court can issue a limited order enjoining, until a proper EIS is filed, only those activities which would foreclose certain alternatives to the project as planned. The Plaintiff argues that, under such an order, construction could continue at little cost to the Corps. However, the mind boggles when the content of that order and the definitions of the impermissible actions are contemplated. An injunction must be specifically and clearly drawn so that the parties to whom it speaks may know precisely what is expected of them. Failure to comply is grounds for contempt. The generalized nature of the injunctive relief suggested to the Court by the Plaintiff in response to the assertion of laches does not meet those standards. Great difficulties would arise in determining what activities are prohibited by such an injunction. Realistically, because members of the Corps would be unable to ascertain with any degree of assurance what actions by them constitute violations of such an order, that type of injunction would amount to a shutdown of nearly all construction. Furthermore, in the context of this case, an order of that nature would have the appearance of elevating form over substance. The Corps has extensively evaluated alternatives to its final plans and has reduced those considerations to writing in so-called Design Memoranda. Requiring the revision of the present Environmental Impact Statement would amount to nothing more than a compilation, collation and representation of matters now contained in those Design Memoranda.
In making this ruling, the Court is fully cognizant of the importance of preserving and protecting the environment and of the fact that the EIS in question here falls far short of the modern prototype for such documents. However, as stated in Clark v. Volpe, supra, the public concern for environmental matters is not served when suit is delayed until substantial alterations to the environment have irreversibly occurred.
G. Defendant Pennsylvania Department of Transportation.
The Pennsylvania Department of Transportation is a party to this suit solely by reason of its control over the laying of relocated Route 15. The Plaintiff fails to make a convincing demonstration of the need for injunctive relief against PennDOT.
The condemnation of the right-of-way for relocated Route 15 and the relocation of persons affected thereby has been carried out completely by the Corps. The only funds received by PennDOT for building this highway are condemnation monies based upon replacement costs -- in effect, dollar-for-dollar payments by the Corps for construction costs incurred by the Commonwealth to build the 8.2 miles of new Route 15. No Federal highway funds have been used to complete this stretch of roadway. Consequently, PennDOT's activities with respect to relocated Route 15 probably do not amount to such "major Federal action" as would require the Commonwealth to file an Environmental Impact Statement with respect to the highway. However, because the Plaintiff has not demonstrated that further irreparable environmental impact will occur if the injunction it seeks with respect to relocated Route 15 is denied and consequently has failed to make a case for injunctive relief against PennDOT, see Ammond v. McGahn, 532 F.2d 325 (3d Cir. 3/11/76) and A. O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 2/11/76), the Court need not ultimately resolve that question.
The only remaining step to finish relocated Route 15 is the pouring of a two-lane concrete strip approximately 800-1000 feet in length. No further displacement of residents will be caused by the road's completion nor is any more grading required. Any environmental damage inflicted by the relocation of Route 15 is history.
For the same reasons given with respect to the injunctive relief sought against the Corps, the Plaintiff's action against PennDOT is barred by laches. There is no significant difference either in quantity or quality between the efforts to give notice by the Corps and PennDOT's attempts to educate the public with respect to the relocation of Route 15. Likewise, the prejudice to the Commonwealth from an injunction at this stage would be significant.
Any argument that the Commonwealth is responsible to individuals near relocated Route 15 for the loss of access and utility service is a legal question and is not properly a part of this suit for injunctive relief.
III. CONCLUSIONS OF LAW
The Court reaches the following Conclusions of Law:
1. The Court has jurisdiction. (Uncontested)
2. Venue to entertain this case lies in this Court. (Uncontested)
3. The Plaintiff has standing to sue.
4. There has been no violation of the Equal Protection Clause of the United States Constitution by either the United States Army Corps of Engineers or by the Pennsylvania Department of Transportation with respect to any member of the Plaintiff.
5. Waivers signed by certain landowners in the Mansfield Area with respect to the liability of the United States Army Corps of Engineers for access to their property were not the product of coercion by the Corps.
6. With respect to the Tioga-Hammond Dam Project, the Corps has not displaced any individual prior to providing him with an opportunity to acquire or rent a decent, safe and sanitary alternative dwelling in an area comparable to his former residence.
7. With respect to the Tioga-Hammond Dam Project, there is no likelihood that the Corps will displace any individual prior to providing him with an opportunity to acquire or rent a decent, safe, and sanitary alternative dwelling in an area comparable to his former residence.
8. With respect to individuals affected by the Tioga-Hammond Dam Project, the Corps has complied with the provisions of the Uniform Relocation Assistance Act, 42 U.S.C. § 4621 et seq.
9. The Plaintiff's suit for injunctive relief against the United States Army Corps of Engineers is barred by laches.
10. The Plaintiff's suit for injunctive relief against the Pennsylvania Department of Transportation is barred by laches.
11. The Plaintiff has not demonstrated that irreparable injury will occur if the completion of relocated Route 15 by the Pennsylvania Department of Transportation is not enjoined.
An appropriate order denying relief will be entered.
© 1992-2004 VersusLaw Inc.