UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

Civil Action No.

CAMPAIGN CLEAN WATER, INC., SUITE 605, MUTUAL BUILDING, RICHMOND, VA. 23219. PLAINTIFF, V. WILLIAM D. RUCKELSHAUS, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, 401 M ST., S.W., WASHINGTON, D.C. 20460. DEFENDANT.

Complaint for Declaratory and Injunctive Relief

1. This is an action seeking to compel the defendant William D. Ruckelshaus, Administrator of the Environmental Protection Agency ("Administrator"), to perform his duty under section 205(a) of the Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat. 816, 837, (the "Act") to allot among the states the full sum authorized to be appropriated by section 207 of the Act for federal grants to states, municipalities, and other agencies for the construction of publicly owned waste treatment works.

2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1361.

3. The value of the amount in controversy exceeds $10,000.

4. Plaintiff Campaign Clean Water, Inc., a corporation incorporated under the laws of the Commonwealth of Virginia, was organized to promote the ecological and environmental advancement of Virginia. Its officers, directors, and financial contributors include Virginia residents who use the nation's waters for both sport and commercial fishing and for other recreational purposes. In addition to its own organizational interests, Campaign Clean Water represents the interests of those Virginia residents in this action.

5. Section 201(g) (1) of the Act authorizes the Administrator to make grants to any state, municipality, or intermunicipal or interstate agency for the construction of publicly owned treatment works.

6. Section 207 of the Act authorizes to be appropriated for the fiscal year ending June 30, 1973 ("fiscal 1973") a sum not to exceed $5 billion for, inter alia, carrying out section 201 (g) (1). Section 207 also authorizes to be appropriated for the fiscal year ending June 30, 1974 ("fiscal 1974") a sum not to exceed $6 billion for the same purposes.

7. Section 205 of the Act states that sums authorized to be appropriated by section 207 for fiscal 1973 shall be allotted by the Administrator among the states within thirty days after the enactment of the Act, and that such sums shall be allotted in accordance with regulations promulgated by the Administrator in a prescribed ratio based on the treatment works construction needs of the State.

8. November 28, 1972, defendant announced that only $2 billion of the $5 billion authorized to be appropriated by section 207 of the Act for fiscal 1973 and only $3 billion of the $6 billion authorized to be appropriated for fiscal 1974 would be allotted by him among the states and would be available for waste treatment works construction grants. Defendant stated that he was withholding the remaining $6 billion of allotments from the states at the direction of the President in keeping with the President's recently announced determination to cut federal spending for anti-inflationary reasons.

9. The action of the Administrator in refusing to allot among the states the full sum authorized to be appropriated by Congress in section 207 of the Act for fiscal 1973 and 1974 was unlawful, was outside the scope of his discretion and authority, and was a violation of defendant's duties to plaintiff and those persons who plaintiff represents, in that (a) the defendant lacks the discretion to refuse to allot among the states the full sums authorized by Congress; or, alternatively, (b) the defendant abused whatever limited discretion he possesses by withholding a greater amount of funds than contemplated by the Congress under the Act.

10. The action of the defendant complained of in paragraph 8 significantly affects the interests of plaintiff and those persons it represents, in that it will delay the achievement of the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters, which is the objective of the Act, as set forth in section 101 thereof.

Wherefore, plaintiff prays for an order (1) declaring the action of the Administrator herein complained of to be unlawful and outside the scope of his discretion and authority; (2) directing the defendant to allot among the states the full sums of $5 billion and $6 billion authorized to be appropriated by section 207 of the Act for fiscal years 1973 and 1974, respectively; (3) granting such other and further relief as the Court may deem just and proper, including the retaining of jurisdiction to ensure that defendant does not, by other unauthorized means, prevent or defer the obligation by states, municipalities, and other authorized agencies of allotted sums. Dated: Richmond, Va., January

1973.

AUGUSTO GUADAMUZ, OTILLA GUADAMUZ, 15 Henry St., San Francisco, Ca. (415) 861-5427, KAREN E. APANA, 85 Noe St., San Francisco, Ca. (415) 864-0152, FELIPE ESPINOZA, MARCELLA ESPINOZA, 2 Boynton Ct., San Francisco, Ca. (415) 863-7419, and W. M. (BILL) SCARBROUGH, Meadville, Miss. (601) 384-2639, individually and on behalf of all others similarly situated,

PLAINTIFFS,
against

ROY L. ASH, Director, Office of Management and Budget, EARL M. BUTz, Secretary, U.S. Department of Agriculture and JAMES T. LYNN, Secretary, U.S. Department of Housing and Urban Development,

DEFENDANTS

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

This is a civil action by plaintiffs who would have been beneficiaries of two Federal programs-The Rural Environmental Assistance Program (REAP), designed to preserve the nation's environment, and the Federally Assisted Code Enforcement Program (FACE), created to preserve deteriorating urban communities by underwriting home rehabilitation-but for the actions of defendants, leaders of the Executive branch of the government, who have halted all further expenditure of funds for REAP and severely restricted the use of FACE monies in defiance of the will of the Congress. Plaintiffs seek both declaratory and injunctive relief predicated on the claim that the Executive branch has neither statutory nor constitutional authority to impound funds appropriated by Congress for Congressionally-approved programs and, thereby, effectively to terminate the operation of such programs. Plaintiffs seek release of appropriated REAP and FACE funds in accordance with the Executive branch's constitutional duty faithfully to execute the laws passed by Congress.

CAUSE OF ACTION

1. This action arises under the Soil Conservation and Domestic Allotment Act, as amended, creating REAP, secs. 7-15, 16(a) and 17, 16 USC secs. 590g-5900, 590p(a) and 590q, The Housing Act of 1949, as amended, creating FACE, secs. 115, 117 and 312, 42 USC secs. 1466, 1468 and 1452b, the Civil Rights Act of 1871, sec. 1, 42 USC sec. 1983 and the Declaratory Judgment Act, 28 USC secs. 2201, et seq.

JURISDICTION

2. Jurisdiction of this Court is invoked under 28 USC secs. 1331 (federal question), 1332 (diversity), 1337 (Commerce Clause), 1361 (mandamus) and 5 USC secs. 701-06 (Administrative Procedure Act). The amount in controversy exceeds $10,000, exclusive of costs and interest. There is diversity of citizenship between the parties.

DEFENDANTS

3. Defendant Roy L. Ash is Director, Office of Management and Budget (OMB). In such capacity, he is charged with the administration of the Anti-Deficiency Act of 1951, 31 USC sec. 665.

4. Defendant Earl M. Butz is Secretary, United States Department of Agriculture (USDA). In such capacity, he is charged with the administration of the REAP program.

5. Defendant James T. Lynn is Secretary, United States Department of Housing and Urban Development (HUD). In such capacity, he is charged with the administration of the FACE program.

6. Each of the defendants performs his official acts (including the acts complained of herein) in, and is officially resident in, and a citizen of the District of Columbia.

PLAINTIFFS

7. Plaintiff W. M. (Bill) Scarbrough is a cattle rancher who grazes cattle on approximately 1400 acres of land in Meadville, Mississippi where he resides and is a citizen. Plaintiff Scarbrough has for 28 years, from 1944 until the termination of the REAP program by defendants ASH and BUTZ on December 22, 1972, received REAP benefits as is more particularly pleaded below in paragraph 23. 8. Plaintiffs Espinoza, Apana and Guadamuz are all low-income property owners who reside in a FACE area in San Francisco. Each of them has applied for FACE grants and loans and each has been advised that all that is delaying their receipt of funds is the impound of sec. 312 monies, as is more particularly pleaded below in paragraphs 48-50.

9. Plaintiffs Scarbrough, Espinoza, Apana and Guadamuz bring this action on behalf of themselves and all other persons similarly situated pursuant to Rule 23(b) (1) and (2) of the Federal Rules of Civil Procedure. The class consists of two proper sub-classes:

a. plaintiff Scarbrough represents all farmers throughout the nation who would have received REAP grants but for the impound placed upon appropriated REAP funds (approximately 820,000 farmers in fiscal year 1972); b. plaintiffs Espinoza, Apana and Guadamuz represent all property owners throughout the nation who would have received FACE benefits but for the impound placed upon funds appropriated for the purposes of sec. 312 rehabilitation loans (approximately 7,000 such loans were made in fiscal year 1972).

Each subclass is so numerous that joinder of all members is impracticable. There are common questions of law, namely, the legal authority of defendants to impound funds appropriated by Congress, affecting all members of the class. The claims of the representative plaintiffs are typical of the claims of the class. The representative plaintiffs will fairly and adequately protect the interests of the class. The prosecution of individual actions by members of the class would create a risk of inconsistent or varying adjudications and impose incompatible standards of conduct upon defendants. Adjudication with respect to representa

tive plaintiffs would be dispositive of the interests of unnamed members of the class. Defendants have acted or refused to act on grounds generally applicable to the class. Absent a class action, defendants will benefit from their illegal conduct.

A. The REAP Program-Structure

FIRST CLAIM

10. REAP, the Rural Environmental Assistance Program, formerly known as the Agricultural Conservation Program, was enacted in 1936 as part of the soil Conservation and Allotment Act, 49 Stat. 1148, in response to the "dust bowl" conditions of much of rural America.

By providing a share of costs generally not in excess of 50 percent of the cost of performance, REAP encourages, especially on average to small size family farms, environmental improvement practices, the following of which have been the principal practices in recent years: (1) establishing or improving permanent vegetative cover; (2) planting trees and improving timber stands; (3) developing livestock watering facilities and constructing water terracing systems to control runoff; (4) reorganizing irrigation systems; (5) establishing habitat, protective cover, and food plots for wildlife; (6) constructing mechanisms to reduce or prevent air and water pollution due to disposition of animal wastes; (7) preventing pollution by sediment runoff; and, (8) disposing of farm residues and solid wastes so as to reduce or prevent air and water pollution. These practices are more fully described in Exhibit 1, attached hereto.

The goals of REAP, according to USDA, are to improve the quality of life for the general public by preventing or abating agriculture-related pollution and to conserve soil, water, woodland, and wildlife resources so as to improve man's total environment.

11. Within USDA, REAP is administered by the Agricultural Stabilization and Conservation Service (ASCS). ASCS, in conjunction with several other divisions of USDA, the Department of the Interior, the Environmental Protection Agency and specially formed state and county advisory groups, formulates a long range plan of national environmental needs called the Conservation Needs Inventory. On the basis of this plan, the total appropriated funds are supposed to be and, until 1972, have been, allocated each year to the several states for cost sharing.

12. Simultaneously with the allocation of funds, ASCS defines the activities or "practices" which it determines are in accord with the year's national priorities as well as the maximum cost-sharing percentages for such practice. Each state REAP committee, consisting of 3 or 5 members appointed by defendant Butz, with the advice of other state and federal agencies, together with private persons and organizations with agricultural and environmental interests, formulates a state REAP plan. This plan, subject to ASCS approval, may add additional practices and alter the percentage of cost sharing. Each state thus has the opportunity to form a REAP program tailored to its needs.

13. When the state plan is approved, it is submitted to the individual county REAP committees, which consist of 3 members who are elected by all the farmers in the county. The county plan can similarly vary the practices and cost sharing, subject to approval of the state REAP committee and ASCS.

14. Only after final approval by the state and county plans may individual farmers (defined as owners, tenants or sharecroppers engaged in farming or ranching) submit proposals to the county committees. Low-income farmers are given priority.

If an individual farmer's application is approved, USDA shares in the cost of executing the "practice" up to the applicable local percentage subject to an overall maximum contribution of $2,500.

B. The REAP Program-Recent Budgetary History

15. Since its enactment in 1936 through fiscal year 1972, REAP has contributed $7.2 billion to the conservation and enhancement of the nation's natural resources, with at least 800,000 farmers each year receiving financial assistance to encourage their participation in conservation practices.

16. From FY 1959 to FY 1969, Congress each year appropriated, by overwhelming margins, at least $100,000,000 more than the amount requested by the President for the REAP Program as more fully appears in the following table:

17. In the FY 1970 budget request, the president sought no funds for REAP. Congress, however, enacted obligational authority of $195,500,000, of which only $185,000,000 was released by OMB.

18. Similarly, in the FY 1971 budget request, the President requested no REAP monies. Congress, again, enacted obligational authority of $195,500,000. Of this amount, OMB authorized the release of only $150,000,000.

19. In the FY 1972 budget request, the President asked for only $140,000,000. Congress enacted obligational authority of $195,500,000. After this Congressional action, only $140,000,000 was released by OMB. In January, 1972, after considerable citizen and congressional pressure, the additional $55,500,000 was released.

20. In his FY 1973 budget, the President requested only $140,000,000 for REAP. Congress enacted obligational authority of $225.000.000. Shortly after the funds were appropriated. OMB impounded $85,000,000 so that the amount released equalled that requested, $140,000,000.

21. By December 22, 1972, only $4,847,129 had been committed by county REAP committees throughout the nation because of the necessary delay involved in formulating the year's practices on the national, state and county levels. In Mississippi, where plaintiff Scarbrough resides, $5.835,180 had been allocated, but only $14,423 had been committed by the county REAP committees.

22. On December 22, 1972. defendant Butz announced that all uncommitted funds had been impounded by OMB and that the REAP program was being terminated. See Exhibit 2, attached hereto. Defendant Butz stated that REAP was of low priority and could be eliminated without serious economic conse quences. He further stated that the action was taken as part of an effort to hold 1973 federal budget outlays to $250 billion. Defendant Butz said that the REAP program was no longer necessary because farmers' incomes would reach their highest levels this year and because he believed that farmers would undertake a significant number of the conservation practices without REAP aid. C. The REAP Program-Plaintiff

23. Plaintiff Scarbrough was, for approximately 15 years, a member of the Franklin County Agricultural Stabilization and Conservation Committee which planned the local REAP program and its predecessor, has been a recipient of cost-sharing under REAP and its predecessor program since 1944, and is, at present, a county commissioner of the Soil Conservation Program, whose principal purpose is to provide technical backup for REAP. He has, during that period of time, expanded funds to establish, improve or protect permanent vegetative cover on his pasture and grazing land by liming, fertilizing and seeding, to con