Department of the Army Historical Summary: FY 1984
The Corps of Engineers through its civil works, environmental protection, and energy programs comes into close contact with the civilian community. Unfortunately, the Corps' views or operations in these programs do not always match those of the civil sector and the Army must respond to the resulting litigation. This chapter details the major activities in civil works, environmental protection, energy, and litigation (against both Corps and non-Corps Army activities).
Total appropriations for Civil Works projects increased approximately $262 million over the FY 83 level with the largest change in the Operation and Maintenance, General, category.
|Operation and Maintenance, General||1,416|
|Flood Control, Mississippi River and Tributaries||427|
Representatives from the Directorate of Civil Works met with a member of the Soil Conservation Service on 22 May 1984 to delineate flood response and recovery authority during the flood season and each agency's policy for rehabilitating non-federal levees. The conferees agreed to maintain a close liaison so that interservice problems could be resolved quickly as they arose during an emergency.
On 9 July, representatives of the two agencies discussed federal policy for rehabilitating non-federal levees. After comparing policies and responsibilities for this repair work, the conferees agreed to meet later to define areas of responsibility, thereby eliminating confusion when applicants sought federal assistance. In early September, after more discussions, the Director of Civil Works sent an information memorandum to the Assistant Secretary of the
Army (Civil Works) (ASA[CW]) outlining the agreed upon delineation of responsibilities. The Corps would pursue requirements for 80/20 cost sharing and public sponsorship and would consider limited delegated authority to district commanders to approve rehabilitation projects.
During FY 84, the Corps concluded a seven year study to examine the causes of streambank erosion, to evaluate the effectiveness of existing and new methods of bank protection, and to prepare a report for Congress. The COE published its findings in a booklet, "Streambank Protection Guidelines," and distributed 20,000 copies, primarily to landowners and local governments. On 1 October 1983, the Corps and the Soil Conservation Service began an $8.2 million study of the erosion problem on the Upper Yazoo River that undermined bridges, ruined farmland, and caused downstream flooding. Both agencies expected the study to lead to improved erosion control techniques that could be used nationwide.
Local levee districts and landowners in Missouri sought a permanent injunction against the Corps of Engineers to keep it from artificially crevassing the frontline levees of the Birds Point New Madrid Floodway. The U.S. District Court issued a preliminary injunction on 10 May 1983, but the U.S. Court of Appeals ordered the suit returned for a full hearing. The hearing, Story v. Marsh, covered two primary issues: whether the Corps' operation plan was arbitrary and capricious and whether the United States should be stopped from operating the floodway. The five-day hearing decided against the Corps on both counts, and on 31 October 1983 the District Court continued in effect the 10 May injunction prohibiting the Corps from operating the floodway The federal government immediately appealed. In April 1984, the Circuit Court reversed the lower court on all points, lifted the injunction, and denied all of the plaintiffs' attempts for a rehearing.
The eruption of Mount Saint Helens in 1980 caused several subsequent problems for the Corps. In November, it announced several methods of dealing with two of these-the debris dam on Spirit Lake and sediment in the Cowlitz and Columbia Rivers. The Corps of Engineers preferred to build a buried conduit through the dam to drain the lake's water into the Toutle River, thus reducing the level of Spirit Lake by twenty feet. However, public concern over drainage through a possibly unstable debris dam caused the COE to route the tunnel through rock instead. On 23 February, the Chief of Engineers asked the Assistant Secretary of the Army (Civil Works) to approve recommendations for the stabilized level of the lake and the new tunnel alignment. The Corps finished the
final environmental impact statement for the 8,500-foot tunnel in April 1984 and started preliminary work on 2 July.
Despite several Corps-funded dredging operations to remove sediment from the Toutle and Cowlitz Rivers in the fall of 1983, the Corps of Engineers failed to maintain 100 year flood protection for all communities along the lower Cowlitz. The Corps determined that dredging an additional three million cubic yards of sediment at a cost of $9.0 million had to begin by mid January to preserve the present 50 year flood protection at Castle Rock, Washington. Otherwise, by March the flood protection would drop to a 10-year level. The COE awarded two Construction, General-funded contracts on 18 January to dredge the sediment. The contractors removed 2,881,000 cubic yards of sediment at a cost of $6.5 million. This excavation, along with favorable runoff conditions during December and January, improved the area's flood protection levels.
Early in FY 84, the Director of Civil Works sent to the Assistant Secretary of the Army (Civil Works) the general plan prepared by the Mobile District for interim flood control measures on the Pearl River at Jackson, Mississippi. Congress authorized these on 30 July 1983. The Mobile District requested $600,000 for preconstruction planning activities. After OCE review, the Director of Civil Works approved $400,000 to continue planning and engineering studies but not to initiate specifications and plans work. He deferred the request for plans and specifications as well as construction funding until two issues were resolved. These were the justification for 108 acres of mitigation land not adjacent to the project and the most cost effective design for a wave barrier in Ross Barnett Reservoir.
The Mississippi congressional delegation questioned the substantial reduction in the Corps' plans for flood control and the final disposition of the funds deleted from the Jackson project. The Director of Civil Works, in response, pointed out that Congress' authorization for the interim flood control measures came at a time when the Mobile District had very preliminary plans and that the ongoing planning and design process would refine these plans and the COE would recommend only those measures that met federal standards. The final comprehensive flood control plan recommended by the Corps would provide a substantially higher level of protection than the interim plans then being considered. Furthermore, the Director assured the congressmen that appropriations in excess of requirements would not be spent on other projects.
The Director of Civil Works, in March 1984, submitted a revised plan on the interim measures to the Assistant Secretary of the Army (Civil Works). On 27 April, Jackson officials received $2.5
million dollars in federal money to finance a flood-reducing clearing project on the Pearl River. However, the Corps turned down the proposal to strengthen the Ross Barnett Reservoir.
Flooding of the three forks of the Kentucky River and two forks of the Big Sandy River in Kentucky produced damage estimates of $234 million in fourteen counties. However, Huntington District engineers estimated that dams prevented a further $154 million worth of damage during the same period.
New England Division engineers estimated that Corps-built projects in the Connecticut River Basin prevented over $58 million of damage during the December 1983 flood and that the Stamford hurricane barrier deterred $50,000 in damages during a 28 February 1984 storm. In fact, Corps flood control projects in New England set a new record for saving property during FY 84. Corps reservoirs and local protection efforts prevented $780 million in losses during flooding from April through June.
During the December 1983 flood, Baltimore District flood control projects deterred over $914 million in damages, primarily in the Susquehanna River Basin. A further $864 million in savings occurred in February 1984 and cumulative loss prevention totaled almost $2 billion during FY 84, surpassing the previous record of $978 million in FY 76.
The Fourth Circuit Court of Appeals affirmed the decision of the district court which upheld the Corps of Engineers' denial of a permit for filling 8.2 acres of tidal wetlands in Ocean City, Maryland. Shoreline Associates planned to build a waterfront townhouse development on the filled wetlands. For the first time, the Fourth Circuit Court directly addressed the Corps' procedures for considering permit applications and found those procedures adequate even though they did not provide for formal submission of evidence, cross-examination, or rebuttal.
A settlement agreement in National Wildlife Federal v Marsh required the Department of the Army to publish proposed regulations for its permit program delineating the status of categories of waters, nationwide permits, rights of private property owners, effect of the 404 (b) (1) guidelines, Corps' deference to local land use decisions, and regulation of solid waste discharged into U.S. waters. The Corps published these proposed regulations in the Federal Register on 29 March 1984 after coordinating their content with the ASA(CW), the Department of Justice, the Army Counsel, the EPA, the intervenors, and the plaintiffs. The Director of Civil Works sent a draft of the final permit regulations and five regulatory guidance letters essen-
tial to their implementation to the ASA(CW) in August. At the end of FY 84, the Corps still awaited a final decision.
At the direction of the ASA(CW), the Civil Works Directorate drafted guidance on permit decision documentation for especially important or controversial cases. This guidance proved to be necessary after two court decisions remanded permit decisions back to districts, largely because of incomplete documentation in the areas of cumulative impacts, determination of wetland importance, practicable alternatives, and water dependence.
The Corps "pulled the plug" on the divide cut of the Tennessee-Tombigbee Waterway on 20 January 1984, providing full-width navigation from Pickwick Pool to Bay Springs Lock and Dam. The 39mile-long Divide Section took ten years to complete.
Between 21 and 22 July 1984, an extensive 2,400-foot-long shoal formed along Crats (Hershey) Island on the Upper Mississippi, stopping all barge traffic. The Corps attributed the shoaling to sediment from the Chippewa River and sent the dredge Thompson to open a passage. The dredge completed a pilot channel on 27 July permitting traverse of the shoaled area by awaiting tows. Continued dredging, natural stream flow, and wash from transiting tows completely reopened the channel.
During FY 84, the Southwestern Division, Corps of Engineers, proposed moving certain dam safety functions out of the Albuquerque and Little Rock Districts and consolidating them in the Tulsa District. A decrease in design and construction of major civil works projects and a reduction in dam safety technical staffs in those two districts necessitated the changes.
In October 1983, the Director of Civil Works sent an update on the one state/one district boundary realignment plan to the ASA(CW). The plan's goal was to eliminate the division of states between two Corps districts. During FY 84, Kansas went to the Kansas City District, Wyoming transferred to the Omaha District, and Vermont joined the New England Division. Colorado, however, remained divided.
The Corps of Engineers played a major role in the RESPONSE 84 earthquake exercise conducted by FEMA on 7-8 August 1984. The exercise clearly demonstrated the need for Corps engineering and construction contracting expertise in the event of a major earthquake anywhere in the United States.
On 15 March 1984, a tornado caused $8 million in damages to an Arkansas state highway bridge and blew the superstructure into Greers Ferry Lake, destroying a pipeline that provided drinking
water to two communities. Although Arkansas designed and built the bridge, Little Rock District personnel assisted in the recovery effort.
A General Accounting Office report, released in January 1984, revealed that the Corps took an average of 26 years to begin construction on a project for which a survey was authorized. The study of 18 flood control projects, 16 navigation projects, and a multipurpose water project awarded construction funding between FY 78 and FY 83, showed an average of 29.4 years for flood control projects, 21.6 years for navigation projects, and an overall average of 26.1 years. The GAO noted, however, that 45 percent of the time lag was due to the Corps' waiting for congressional construction authorization and funding.
Environmental Protection and Preservation
A proposal by Virginia Beach to withdraw up to 60 million gallons of water daily from Lake Gaston, North Carolina, brought determined resistance from that state. North Carolina's Governor James B. Hunt, Jr., expressed his concern that the pipeline would decrease the flow of the Roanoke and Chowan Rivers, thereby causing pollution buildup and algae growth at the upper end of Albermarle Sound. The North Carolina government delivered a 35 page document to the Corps of Engineers in November 1983 claiming that construction of the proposed $176 million pipeline would hurt the striped bass, hydroelectric power, and water recreation in the Lake Gaston area. Furthermore, the document argued that the 85-mile pipeline would violate federal laws on the interbasin transfer of water, and the Corps would need congressional approval before starting the project. On 12 January 1984, the state of North Carolina filed suit against the Secretary of the Army, the ASA(CW), the Chief of Engineers, and the Norfolk District Engineer, alleging that on 9 January the Corps had illegally issued the city of Virginia Beach a permit to construct a water intake structure on Lake Gaston, since no environmental impact statement had been prepared and since the Water Supply Act of 1958 mandated congressional approval for the project.
The North Carolina suit involved generally the same issues and facts as that filed by the city of Virginia Beach on 9 January against the Roanoke River Basin Association, seeking declaratory relief against the Governor of North Carolina and others. In addition, the Virginia Beach v Champion International case sought to resolve water rights questions associated with the proposed water intake facilities.
In May, a new Corps study presented evidence that the pipeline was the best method to ensure the future drinking water supply of the Virginia Beach area. The Corps defied the House Appropria-
tions Committee in September by refusing to prepare an environmental study on the project. It justified this stand by claiming that laws allowing the Corps to decide when an environmental impact statement is necessary overruled the committee's direction.
In December 1983, the United States sued a group of manufacturers for the recovery of natural resource damages in the Acushnet River, New Bedford Harbor, and Buzzards Bay areas of Massachusetts. The Environmental Protection Agency joined the suit in February. The suit alleged that the defendants' operation of capacitor plants resulted in polychlorinated biphenyls discharged into the river and harbors. Federal Pacific Electric Co., a defendant, filed a counterclaim charging that the Corps' dredging operations had caused the damage by disturbing and transporting contaminated sediment.
A U.S. District Court judge ruled in March 1984 that the Corps of Engineers had abdicated its responsibility under the National Environmental Policy Act of 1969, when it issued a permit for a proposed resort development on Galveston Island, Texas. The judge decided that the permit was not sufficiently supported by an environmental impact statement and therefore the permit-wag-unreasonable and arbitrary. The court ordered the Corps to prepare an environmental impact statement including "all past, present, and reasonable foreseeable developments."
In August 1984, the Corps transferred its Chesapeake Bay Model operation and maintenance to the state of Maryland for its use in the Bay cleanup program. The Director of Civil Works, in September, sent a letter to Senator Charles Mathias stating that the ASA(CW) and the Director supported the establishment of a federal coordination agreement to assist in restoring the bay.
The Chairman of the Board of Directors of the Metropolitan Washington Council on Governments sent a letter, on 23 July, to the Secretary of the Army asking him to assign the primary responsibility for evaluating the hydrilla problem in the Potomac River and for developing a plan of action by the Corps of Engineers. The Corps stated that it had started work on the problem and would continue the program during FY 85.
Despite objections by environmentalists, a U.S. District Court judge ruled, on 5 January 1984, that the Corps could proceed with the completion of an expanded Barbers Point Harbor inn Honolulu. The judge decided that the COE had taken sufficient notice of the potential environmental consequences of the project and need not engage in discussions of any other "remote and highly speculative consequences." Several Waianae Coast residents had started the suit in 1982.
In July 1984, a U.S. Circuit Court of Appeals approved the legal adequacy of the Cooper Reservoir (Texas) Project's supplemental environmental impact statement and lifted the injunction that had prevented construction since 1971.
During FY 84, the two studies attempted to determine whether the turbines at the Harry S. Truman Dam and Reservoir, Warsaw, Missouri, could be successfully operated in reverse as pumps without endangering fish populations in the Lake of the Ozarks. A task group of the Truman coordination team and Corps-funded independent review by the University of Missouri will submit a definitive decision by March 1985.
Army Energy Program
In the decade since the OPEC cartel imposed a substantial oil price hike, the Army undertook numerous initiatives to reduce energy consumption. Started as a program to reduce dependence upon foreign energy sources, the Army Energy Program now has evolved to include economics, and will remain a priority issue in the Army's planning operational activities.
The Army implemented its energy conservation program to meet the presidentially assigned goal of reducing energy usage per square foot of active floor space by 20 percent of the FY 75 level. The mobility energy goal was to reduce administrative fuel (MOGAS) consumption by 15 percent and limit operational readiness fuel (diesel and aviation) use to the FY 75 level. The Army did not meet its FY 84 targets. Facility energy consumption was 5.7 percent over the target and mobility energy used exceeded the target by 3.4 percent. The Energy Conservation Investment Program, the Energy Engineering Analysis Program, and the Energy Conservation and Management Program aimed at identifying and implementing energy projects for fixed facilities. Although these projects started to come on-line during FY 84 and produced energy savings, wastage still occurred. To eliminate further or at least reduce this waste, the Army continued its DA Energy Seminars that promoted energy awareness at the installation level. Thirteen CONUS and OCONUS installations held the seminar during FY 84 and 18 will be held in FY 85.
More than 1,300 lawsuits involving the Army were pending in federal, state, and foreign courts at the end of FY 84. Many of these actions challenged significant Army activities, policies, and deci-
sions. The RELOOK cases, involving over 100 Reserve officers released from Active duty because of their nonselection for temporary promotion, came closer to final resolution. The plaintiffs claimed that the original selection boards had insufficient Reserve representation and that the Army's reconsideration through special RELOOK boards was inadequate. In March 1984, the Court of Appeals for the Federal Circuit denied the plaintiffs' petition for a rehearing in Bockoven v. Marsh and left intact the court's ruling that the RELOOK remedy was adequate and that 1976 promotion boards had "appropriate" Reserve representation. Definitive resolution of these issues in Bockoven should control the other RELOOK cases. Therefore, all related cases in the Claims Court were suspended pending the Supreme Court's decision upon the plaintiffs' application for certiorari in Bockoven.
The Army's right to exclude homosexuals from its ranks continued to face tests in the courts. In Watkins v. United States Army, the Court of Appeals issued a mandate overturning the District Court's order that directed the Army to reenlist Watkins, an admitted homosexual, discharged by the Army for that reason. In Rick v Secretary of the Army, the Tenth Circuit affirmed the dismissal of a challenge to Army policy regarding the discharge of homosexuals brought by a former enlisted soldier discharged for fraudulently concealing previous homosexual acts at the time he enlisted.. Mathezos v. Marsh involved an admitted lesbian who was removed from the ROTC program at the University of Maine. In April 1984, the District Court ruled that the plaintiff's removal solely on the basis of her admission that she was homosexual, but without evidence of her committing homosexual acts, violated her First Amendment right of free speech. The Army still awaited the court's ruling on its appeal at the end of FY 84. In an administrative proceeding, the Philadelphia Commission on Human Relations attempted to preclude Temple University from allowing military recruiters to use the services of its law school placement office. Two homosexual students and the commission claimed that by permitting this, Temple University impermissibly aided and abetted discrimination based upon sexual orientation because the military excluded homosexuals. The Army entered the proceeding as an amicus and filed a brief contending that the Supremacy Clause precluded Philadelphia from taking action against Temple University.
In the area of political questions and activities, pacifist groups sued school boards in Chicago and Atlanta to obtain the same access to schools given to military recruiters. The Army provided information to the school boards in both cases and prepared amicus
briefs. In Katcoff v. Alexander, the court ruled that the Army chaplaincy "is a constitutionally mandated end," and did not violate the principle of separation of church and state. An appeal is pending.
In sole parent litigation, the only pending case was the class action Mark v. Rumsfeld, which challenged the Army's policies on the enlistment of sole parents in the Regular Army, Army Reserve, and Army National Guard. Cross-motions for summary judgment awaited a judicial decision at the end of FY84.
Vietnam veterans sued the manufacturers of Agent Orange on a product liability theory and impleaded the government. In December 1980, the court dismissed the United States as a third party defendant based upon the Feres doctrine but withheld final judgment in favor of the government, presumably to facilitate discovery. In February 1984, the court reinstated the United States as a defendant in the litigation for the claims of spouses and children of Vietnam veterans exposed to the herbicide. The government's appeal proved unsuccessful. On the eve of the trial in May 1984, the chemical manufacturers settled out of court and agreed to establish a $180 million fund for the payment of claims arising from exposure to Agent Orange. The United States remained a defendant in the case at the end of the fiscal year.
A number of nuclear and drug testing cases remained pending during FY 84. In Broudy v. United States, the Court of Appeals ruled that a service member exposed to nuclear radiation could sue the government for damages. The Army sought Supreme Court review. In Stanley v. United States, the Army appealed a district court decision that a service member who participated in drug experimentation was not precluded from suing because his participation was voluntary. The Army moved for summary judgment in the related cases of Barrett v. United States, Barrett v Hoffman, and Barrett v. Author, which involved the death of a civilian after being administered mescaline by an Army research contractor. At the end of FY 84, the Army awaited notice of a hearing date.
Harris v. Marsh, claiming pervasive race discrimination at Fort Bragg, North Carolina, continued as the Army's most significant race discrimination case. In January 1984, trial began on the first of 50 cases. During FY 84, the court dismissed 14 cases with prejudice on the plaintiffs motion and dismissed 12 others on procedural grounds. The Army, arguing that some of the cases' claims were frivolous, moved for sanctions. The remaining cases will be tried in January 1985. The Army defeated class certification in Hillis v. Marsh, which alleged race discrimination in promotions at the Red River Army Depot, and prepared for trial on individual claims in early 1985.
The Army faced a deluge of litigation in the Court of Appeals for the Federal Circuit, challenging decisions in favor of the Department of the Army by the Merit Systems Protection Board. Pro se petitioners filed most of these appeals and alleged that the adverse action was unsupported by adequate evidence. The court uniformly affirmed the board's decisions.
The Army also saw more filings in district courts seeking to impose individual liability upon Department of the Army officials based upon common law and constitutional tort theories. The Army was significantly successful in protecting officials from liability through pretrial motions, with only one case resulting in a money judgment against a DA official.
A troubling development in tort litigation was the use of artful pleading to overcome express bars to claims under the Federal Tort Claims Act (FICA). Three prominent examples involved the foreign claims and intentional tort exceptions to the FICA. The foreign claims exception precluded "any claim arising in a foreign country." To circumvent this clear and unambiguous language, plaintiffs in Morris v. United States and Conley v. United States claimed negligence by The Surgeon General in selection, retention, and supervision of the treating medical personnel in Germany as the basis of their suits, rather than the actual negligent medical treatment. The Army moved to dismiss Morris and continued discovery in Conley.
Plaintiffs used a similar approach to avoid the intentional tort exception which barred "any claim arising out of assault, battery . . ." They attempted to overcome this express exception by claiming negligent supervision by military superiors as the basis of their cases rather than the actual tortious act by the federal employee or soldier who inflicted the injury. In Shearer v. United States, the plaintiff succeeded with this approach before the Court of Appeals for the Third Circuit. The Army's petition for certiorari remained pending at the end of the fiscal year.
Another development of increasing significance concerned affirmative litigation efforts in the medical care recovery area. In several jurisdictions, the effect of no-fault insurance showed a steadily rising number of no-fault insurers refusing to pay the government's medical care claims. At the end of FY 84, Congress was considering remedial legislation.
Fiscal year 1984 saw an increase in the number of Contract Disputes Act cases filed directly in the United States Claims Court, rather than with the Armed Services Board of Contract Appeals, C3, Inc. v. United States, one of the most significant, arose out of a dispute over a contract for computer equipment. The plaintiff
sued for $1 million, and the Army countersued for $4.2 million for fraud by C3, Inc. The court suspended trial proceedings pending the outcome of a federal grand jury investigation.
In contrast, the number of disappointed bidder suits seeking injunctive relief sharply declined during the year. Among the most interesting was M.N. C. of Hinesville, Inc. v. Department of Defense, in which a newspaper publishing company challenged the selection of a competitor to publish the civilian enterprise newspaper at Fort Stewart, Georgia. The court denied the plaintiff's motion for a preliminary injunction in January 1984.
The Judge Advocate General's Office devoted a significant amount of time responding to requests for documents from both parties in retired General William Westmoreland's libel suit against the Columbia Broadcasting System. The Army maintained a policy of strict impartiality in this private litigation.
In United States v Shell Oil Co., the Army filed a $1.8 billion affirmative claim against Shell Oil Company under the Comprehensive Environmental Response, Compensation and Liability Act for hazardous waste cleanup costs. Shell created the waste as a byproduct of its pesticide production under a 20 year lease at Rocky Mountain Arsenal. The Judge Advocate General's Office spent much of FY 84 developing an automated litigation support system to cope with the massive discovery requirements in the case. Shell lost its motion to strike the $1.8 billion figure from the suit as well as its motion for dismissal of the Army's contractual claims for indemnification.
The Judge Advocate General established a Contract Fraud Branch on 1 January 1984 to provide a central point for the coordination of all civil, criminal, contractual, and administrative remedies pertaining to contractor fraud. During the remainder of FY 84, the Army suspended 22 contractors and debarred 44 contractors from contracting with the government. In September 1983, the Army suspended a holding company, one of whose subsidiaries held the Army laundry contract in Europe, based upon an indictment for bribery, conspiracy, mail fraud, false statements, income tax evasion, and racketeering. The defendants awaited sentencing at the end of FY 84. During the fiscal year, the Army proposed debarring a manufacturing company because of contract nonperformance. The Army claimed that the company willfully provided over 9,000 defective crankshafts to the Army for military standard engines for a loss of over $1 million. The Judge Advocate General investigated a manufacturer of electronic components for several Army weapon systems for making false claims and false statements. Not yet indicted, the company offered a settlement in which it would plead guilty to sev-
eral counts of false claims and false statements, would pay approximately $2.6 million in damages under the False Claims Act, and would make specific safeguards to prevent further recurrence. The Army, acting as the DOD Executive Agent, would agree that DOD would not suspend or debar the company. At the close of FY 84, the proposal was being coordinated within DOD.
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Last updated 8 March 2004