480 F.Supp. 608 (E.D.Tenn. 1979), Civ. 3-79-418, Sequoyah v. Tennessee Valley Authority

Docket Nº:Civ. 3-79-418
Citation:480 F.Supp. 608
Party Name:Sequoyah v. Tennessee Valley Authority
Case Date:November 02, 1979
Court:United States District Courts, 6th Circuit, Eastern District of Tennessee

Page 608

480 F.Supp. 608 (E.D.Tenn. 1979)

Ammoneta SEQUOYAH, Richard Crowe, Gilliam Jackson, Individually and Representing Other Cherokees similarly situated, and the Eastern Band of Cherokee Indians, and The United Ketooah Band of Cherokee Indians

v.

TENNESSEE VALLEY AUTHORITY.

Civ. No. 3-79-418.

United States District Court, E.D. Tennessee, Northern Division.

Nov. 2, 1979

Page 609

Robert M. Stivers, Jr., Knoxville, Tenn., Ben Oshel Bridgers, Sylva, N. C., Walter R. Echo Hawk, Kurt V. Blue Dog, Native American Rights Fund, Boulder, Colo., Ellen Leitzer, Susan Tomita, National Indian Youth Counsel, Albuquerque, N. M., for plaintiffs.

Herbert S. Sanger, Jr., Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, James E. Fox, Asst. Gen. Counsel, Michael R. McElroy, Tennessee Valley Authority, Knoxville, Tenn., for defendant.

Page 610

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

This is an action seeking injunctive relief against impoundment of the Tellico Reservoir on the Little Tennessee River. The ground for such relief is that the flooding of the Little Tennessee will violate plaintiffs' constitutional and statutory rights to freely exercise their religion. Before the Court are plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Both motions have been exhaustively briefed and argued orally before this Court.

I. FACTS

In 1966, Congress appropriated the first construction funds for the Tellico Dam and Reservoir project. Since then over $111,000,000 have been spent on the project which is now near completion. A fruitful source of litigation, the dam has been the subject of at least nine lawsuits on the district court level alone. This, the latest one, was filed on the eve of its completion, even though the plaintiffs have known about the project and its attendant First Amendment issues since 1965. Although enjoined twice by the courts, the project has been free from any injunction for at least nine of the last fourteen years. It is difficult to understand why plaintiffs have waited until now to raise their constitutional arguments in court.

In 1967, the Tennessee Valley Authority began acquiring privately owned property along the Little Tennessee River as the initial step in its project to impound a reservoir there. The latest lawsuit against the dam, before this one, resulted in a permanent injunction against impoundment of the reservoir based on the Endangered Species Act, 16 U.S.C. Chapter 35, Sec. 1531 et seq. See TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). On September 24, 1979, the President signed into law the Energy and Water Development Appropriation Bill, providing, in relevant part, as follows:

(N)otwithstanding provisions of 16 U.S.C., Chapter 35 or any other law, the Corporation is authorized and directed to complete construction, operate, and maintain the Tellico Dam and Reservoir Project for navigation, flood control, electric power generation, and other purposes, including the maintenance of a normal summer reservoir pool of 813 feet above sea level.

Since that time, TVA has been working toward completion of the dam and impoundment of the reservoir. Although no specific date has yet been set for closing the gates of the dam to begin impoundment, such action is imminent, to occur sometime after November 9, 1979.

The plaintiffs in this lawsuit are two bands of the Cherokee Indian nation and three individual Cherokee Indians. Plaintiffs claim that the land along the Little Tennessee River which will be flooded by the Tellico Reservoir is sacred to the Cherokee religion and a vital part of the Cherokee religious practices. The land includes several old Cherokee settlements and burial grounds with religious significance to the Cherokee people.

The plaintiffs contend that impoundment of the reservoir will violate their constitutional right to free exercise of their religion, in addition to their claimed statutory rights of access to lands of religious and historical significance. These statutory claims are based on the American Indian Religious Freedom Act, 42 U.S.C. s 1996; the National Historic Preservation Act, 16 U.S.C. ss 470 Et seq.; and the Tennessee cemetery statutes, Tenn.Code Ann. Sec. 46-401 Et seq. TVA contends that impoundment will infringe none of the plaintiffs' legal rights.

II. PLAINTIFFS' CLAIMED STATUTORY RIGHTS

The Congress and the President have authorized and directed TVA...

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