Crowther v. Seaborg

• Decision Date: 02 September 1969
• Docket Number: 449-69.,No. 448-69,448-69
• Citation: 415 F.2d 437
• Parties: Richard L. CROWTHER, Willard Eames, Charles Morgan Smith, individually and as Parent and Next Friend of James Hopkins Smith, III, and James Hopkins Smith, III, on behalf of themselves and all persons similarly situated, Appellants, v. Dr. Glenn T. SEABORG, Chairman of the Atomic Energy Commission, Austral Oil Company and CER Geonuclear Corporation, Appellees. COLORADO OPEN SPACE COORDINATING COUNCIL, on behalf of all those entitled to the protection of their health and safety and of the health and safety of those generations yet unborn, from the hazards of ionizing radiation resulting from the distribution of radioactive materials through the permanent biogeochemical cycles of the Biosphere as a result of the defendants' conduct of Project Rulison, and on behalf of all those entitled to the full benefit, use and enjoyment of the national natural resource treasures of the State of Colorado without degradation resulting from contamination with radioactive material released as a result of the defendants' conduct of Project Rulison, and all others similarly situated, Appellants, v. AUSTRAL OIL COMPANY, Incorporated and CER Geonuclear Corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

415 F.2d 437 (1969)

Richard L. CROWTHER, Willard Eames, Charles Morgan Smith, individually and as Parent and Next Friend of James Hopkins Smith, III, and James Hopkins Smith, III, on behalf of themselves and all persons similarly situated, Appellants, v. Dr. Glenn T. SEABORG, Chairman of the Atomic Energy Commission, Austral Oil Company and CER Geonuclear Corporation, Appellees.

COLORADO OPEN SPACE COORDINATING COUNCIL, on behalf of all those entitled to the protection of their health and safety and of the health and safety of those generations yet unborn, from the hazards of ionizing radiation resulting from the distribution of radioactive materials through the permanent biogeochemical cycles of the Biosphere as a result of the defendants' conduct of Project Rulison, and on behalf of all those entitled to the full benefit, use and enjoyment of the national natural resource treasures of the State of Colorado without degradation resulting from contamination with radioactive material released as a result of the defendants' conduct of Project Rulison, and all others similarly situated, Appellants, v. AUSTRAL OIL COMPANY, Incorporated and CER Geonuclear Corporation, Appellees.

Nos. 448-69, 449-69.

United States Court of Appeals Tenth Circuit.

September 2, 1969.

Tom Lamm, Denver, Colo. (Richard D. Lamm, Denver, Colo., Yannacone & Yannacone, Patchogue, N. Y., Roger Stevens and Robert Miller, Boulder, Colo., on the brief), for appellants.

Carl Eardley, Deputy Asst. Atty. Gen. (James L. Treece, U. S. Atty., on the brief), for appellee Dr. Glenn T. Seaborg, Chairman of Atomic Energy Commission.

David T. Searls, A. Frank Smith, Jr., and John L. Murchison, Jr., of Vinson, Elkins, Searls & Connally (John Berlinger and James Voorhees, of Moran, Reidy & Voorhees, Denver, Colo., on the brief), for appellees.

Before HILL, SETH and HOLLOWAY, Circuit Judges.

HILL, Circuit Judge.

These two cases consolidated in the trial court and in this court, concern appellant's request for a preliminary injunction, enjoining the appellees from detonating an underground nuclear device on the western slope of Colorado. The trial court denied the request for preliminary injunctive relief, which is appealed from, and, in addition, appellants have filed here original motions requesting temporary restraining orders. Because of the urgency for an early determination of the question involved an emergency panel of the court was convened and the matter was submitted by oral arguments, typewritten briefs and the original record from the trial court.

The evidence adduced in the trial court reflects the following undisputed facts:

About twelve years ago the Atomic Energy Commission initiated what was known as the Plowshare Program with the objective of developing peacetime constructive uses of the Nation's nuclear explosive technology. The questioned project, known as the Rulison Project, is a part of the Plowshare Program and its purpose is to study the economic and technical feasibility of using underground nuclear explosives to stimulate production of natural gas in the Rulison field. This project and others, similar to it, have the support of the Congressional Committee on Atomic Energy and by the Congress. Participating in this project are numerous governmental agencies such as the Bureau of Mines of the Interior Department, the Public Health Service, the Colorado Department of Health, United States Geological Survey, United States Coast and Geodedic Survey, the Air Resources Laboratory, the Environmental Science Services Administration, Colorado Department of Natural Resources and others.

Also involved in the project are the two corporate appellees, Austral Oil Comany and CER Geonuclear Corporation, which corporations are, by contract with the Atomic Energy Commission, industrial sponsors of the project.

The detonation is scheduled for September 4, 1969, with no re-entry or flaming scheduled for at least six months after the explosion.

The trial judge, after a full evidentiary hearing, made elaborate findings of facts, among which are the following:

That the proposed experiment is a research project and not a commercial project; the purpose is to study the economic and technical feasibility of using underground nuclear devices or explosives to stimulate the production of natural gas; the United States has specifically authorized the Plowshare Program in which the Rulison...