Trout Unlimited v. Morton, 74--1974

Citation509 F.2d 1276
Decision Date23 December 1974
Docket NumberNo. 74--1974,74--1974
Parties, 5 Envtl. L. Rep. 20,151 TROUT UNLIMITED et al., Plaintiffs-Appellants, and Randy Berry, Plaintiff-Intervenor-Appellant, v. Rogers C. B. MORTON, Secretary of the Department of the Interior of the United States of America, et al., Defendants-Appellees, and Fremont-Madison Irrigation District and Madison County, a political subdivision of the State of Idaho, Defendants-Intervenors Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Allen W. Stokes, Jr. (argued), of Sierra Club Legal Defense Fund, Inc., Denver, Colo., for plaintiffs-appellants.

Neil Proto (argued), Appellate Sections, Lands and Natural Resources Division, Dept. of Justice, Washington, D.C., for defendants-appellees.

William S. Holden, Esq. (argued), Idaho Falls, Idaho, for defendants-intervenors.

Before KILKENNY and SNEED, Circuit Judges, GRAY, * District Judge.

OPINION

SNEED, Circuit Judge:

Appellants appeal from a judgment holding the environmental impact statement for the Teton Dam and Reservoir Project adequate under the National Environmental Policy Act, 42 U.S.C.A. § 4321 et seq., and denying injunctive relief against further construction. We affirm the judgment of the district court.

Parties

Appellants, plaintiffs below, are five environmental organizations, 1 an Idaho corporation which operates float trips and other excursions on various rivers in Idaho, and two named individuals who claim a recreational interest in the Teton River. Plaintiff-intervenor Randy Berry is a guide and outfitter who has conducted float trips on various portions of the river. Some, if not all, of the plaintiffs have standing to bring this action. In any event, standing is not at issue in this appeal.

Appellees, defendants below, are the Secretary of the Interior and four named officials of the Bureau of Reclamation who are charged with various responsibilities in the planning and implementation of the Teton Dam and Reservoir Project. Defendant-intervenor Fremont-Madison Irrigation District has, by contract with the Bureau of Reclamation, subscribed for 100 percent of the active storage capacity of the Teton Reservoir and obligated itself to repay certain portions of the costs of construction and costs of maintenance and operation properly allocable to irrigation. Madison County is an additional defendant-intervenor.

The Teton Dam and Reservoir Project

There was evidence before the district court to support the following statement of facts.

The Teton River is formed near the town of Victor, Idaho at the upper end of Teton Valley by the confluence of Trail Creek and Little Pine Creek. The river flows north from Victor for approximately 15 miles and then descends into a narrow canyon and flows northward for eight miles. It then turns abruptly westward and flows through another 22 miles of canyon. Approximately four miles downstream from the canyon mouth, the river divides into the North and South Forks of the Teton River. Each of these forks is approximately eight miles in length and each enters Henry's Fork of the Snake River near Sugar City, Idaho.

The Teton River is a source of severe flooding in Madison County, Idaho and the surrounding areas. Annual spring flooding causes extensive damage to bridges, roadways, and private property. The Bureau of Reclamation has concluded that the proposed Teton Dam is the only practicable means to control this flooding.

In 1964, Congress enacted Public Law 88--583, 78 Stat. 925, which authorized construction of the 'First Phase' 2 of the Lower Teton Division of the Teton Basin Project. 3 The principal facilities planned are a dam and reservoir. The damsite is some three miles upstream from the mouth of the 22 mile long canyon of the Teton River and approximately 18 miles northeast of the City of Rexburg, Idaho. The Teton Dam will be an earth fill structure, approximately 300 feet high, 3000 feet wide, and 35 feet thick at the top. The reservoir will inundate approximately 17 miles of the canyon and have a storage capacity of approximately 300,000 acre feet of water, of which approximately 200,000 acre feet will be active capacity and 100,000 acre feet will be a permanent pool. It will have a shore line of some 50 miles and a water surface area, when full, of 2,100 acres.

Additional facilities include a power plant consisting of two 10,000 kilowatt units and a pumping plant with a capacity of 70 cfs (cubic feet per second) which will discharge water through a buried pipeline to the Fremont Pump Canal. This open canal will be 2.5 miles long and will provide supplemental water for some 4,000 irrigated acres through the Canyon Creek Canal. Additional irrigation water will be provided through a buried pipeline and open canal which will connect with the existing Enterprise and East Teton Feeder Canals. A system of approximately 27 deep wells will be developed throughout the valley to provide replacement irrigation water when no uncommitted surface water is available in the Upper Snake River Basin. Through direct service and water exchange arrangements, the reservoir and wells will provide supplemental irrigation water for approximately 107,000 acres. Additionally, an electric transmission line, switchyard, and a construction and maintenance building will be constructed. Bids for construction of the 'First Phase' of the project were opened on October 29, 1971, approximately 30 days after appellants filed their original complaint in the district court. The construction contract was awarded on December 14, 1971. As of March 20, 1974, construction of the overall project was approximately 50% complete.

The principal benefits which will be derived from this project are flood control and storage of irrigation water. Secondary or incidental benefits include production of electric power estimated at 92,300,000 kilowatt-hours per year and opportunities for flatwater recreation on the reservoir.

Significant environmental damage will also occur. The area of the canyon to be inundated is a winter range for mule deer. Winter counts by the Idaho Fish and Game Department have recorded about 400 deer wintering in the affected area. This area is also home to a small number of elk, various small mammals, and numerous birds, including a few bald and golden eagles, turkey vultures, and prairie falcons. Some ducks also winter in the canyon.

The Teton River is presently an excellent fishing stream for cutthroat, rainbow, and brook trout although it is little used by sportsmen because of its limited accessibility. The 17 miles of the river canyon which will be inundated will wipe out this stream fishery. However, a kokanee salmon and rainbow trout fishery will be established in the reservoir.

In April 1971, a draft environmental impact statement (hereinafter EIS) was prepared on the First Phase of the project under the direction of the Regional Director of Region One of the Bureau of Reclamation. In this preparation the personnel of the Bureau had available to it various studies of the area prepared by certain Federal agencies and other organizations having appropriate qualifications. 4 The draft was distributed to the appropriate federal, state and local agencies, as well as to many private organizations and individuals for review and comment. Approximately one hundred and fifty comments were received.

In June 1971, the EIS was revised in response to both these comments and the guidelines issued by the Council on Environmental Quality. 5

The revisions reflected a decision to relocate the borrow area for dirt-fill used in the construction of the damsite. The Draft EIS had articulated the intent to borrow material in the canyon bottom, downstream from the damsite. However, the Final EIS revealed that a plan had been devised to obtain these materials from the designated reservoir area in order to avert environmental damage to the downstream water quality. Another revision indicated that the release of water flow was to be increased from 150 cfs to 300 cfs in order to preserve the aquatic habitat and related fishery.

Additionally, spawning facilities and hatchery flows, fish screens for new and existing canal headings, wildlife protective fencing, browse planting on 700 acres, and an acquisition of 430 acres of wildlife habitat were added in the plan to minimize the loss of fish and wildlife resulting from the dam construction and inundation.

Subsequently ten copies of the Final EIS for the project were prepared by the United States Department of Interior. All of the above mentioned proposals were adopted in the Final EIS and copies were forwarded to the Chairman of the Council on Environmental Quality on July 22, 1971. 6 See CEQ Guidelines 36 Fed.Reg. 7724 (Apr. 23, 1971), guideline numbers 3 and 10.

On September 27, 1971, appellants in August 1971. These comments were then referred by CEQ to the Department of Interior. In September of 1971, the Department of Interior submitted to CEQ a detailed response to the EPA comments. CEQ never registered any objections to the adequacy of the EIS nor the continued construction of the project.

Proceedings Below

On September 2m, 1971, appellants filed this action for injunctive relief in the United States District Court for the District of Idaho. On October 1, 1971, appellants filed their First Amended Complaint alleging that defendants had violated numerous laws and moved for a preliminary injunction enjoining further construction of the Teton Dam and Reservoir. Following a hearing, the district court denied such motion on March 2, 1972.

On April 4, 1972, appellants filed a motion for a Temporary Restraining Order and a second motion for a preliminary injunction. The motion for a temporary restraining order was heard on April 12 and denied on April 19, 1972.

On May 12, 1972, appellants filed their Second Amended Complaint containing five claims and seeking injunctive, declaratory, and other relief. Appellants...

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