Libby Rod & Gun Club v. Poteat

• Citation: 457 F. Supp. 1177
• Decision Date: 28 September 1978
• Docket Number: No. Cv-78-40-M.,Cv-78-40-M.
• Parties: LIBBY ROD & GUN CLUB et al., Plaintiffs, v. John A. POTEAT et al., Defendants, and Western Environmental Trade Association of Montana, Intervenor.
• Court: U.S. District Court — District of Montana

457 F. Supp. 1177

LIBBY ROD & GUN CLUB et al., Plaintiffs, v. John A. POTEAT et al., Defendants and Western Environmental Trade Association of Montana, Intervenor.

No. Cv-78-40-M.

United States District Court, D. Montana, Missoula Division.

September 8, 1978.

Memorandum in Support of Grant of Preliminary Injunction September 28, 1978.

COPYRIGHT MATERIAL OMITTED

James H. Goetz, Bozeman, Mont., Steven J. Perlmutter, Helena, Mont., for plaintiffs.

Robert T. O'Leary, U. S. Atty., Butte, Mont., for government defendants.

Shelton C. Williams of George, Williams & Benn, Missoula, Mont., for McMillin Bros. Constructors.

Lawrence F. Daly of Garlington, Lohn & Robinson, Missoula, Mont., for intervenor Western Environmental Trade Ass'n of Montana.

ORDER

WILLIAM D. MURRAY, Senior District Judge.

Plaintiffs have moved, pursuant to Rule 65(a) Federal Rules of Civil Procedure, for preliminary injunction to enjoin the defendants from proceeding with the Libby Additional Units and Reregulating Dam (LAURD) on the grounds that defendants have violated (1) 33 U.S.C. § 401 by proceeding with construction without the necessary authorization of Congress; (2) the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq., and regulations adopted thereunder; (3) the Water Resources Planning Act, 42 U.S.C. § 1962 and the Water Resources Council "Principles and Standards", 38 F.R. 24778; (4) the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. and regulations adopted thereunder; and (5) the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470t.

On the basis of the evidence presented and the exhibits on file herein, the court finds that the U. S. Army Corps of Engineers proposes to construct a major water development project on the Kootenai River in Lincoln County, Montana, known as "LAURD". The Corps of Engineers plans to construct four (4) additional electric power generating units of 105,000 K.W. capacity each at the present Libby Dam. In connection with the installation of the additional generating units, the Corps of Engineers plans to construct a new dam on the Kootenai River approximately ten miles downstream from the Libby Dam, the purpose of which is to hold water in order to regulate down-stream fluctuations in the water of the Kootenai River which will result from variable releases at Libby Dam. The impoundment of the reregulating dam will inundate about ten miles of the Kootenai River. The Corps of Engineers has contracted with defendant McMillin Brothers Constructors to do certain preliminary construction work, including the construction of a temporary haul bridge across the Kootenai River. McMillin Brothers has begun construction of the temporary haul bridge and is continuing to work on it. The Corps of Engineers has entered into other contracts in connection with the "LAURD" project, among them, a major contract for construction of turbines with the Allis-Chalmers Company.

On the basis of the evidence and exhibits presented at the hearing, this court finds that plaintiffs have made a sufficient showing that they are likely to succeed on the merits of the suit with respect to Counts I (Congressional Authority) and IV (N.E.P. A.). More particularly, this court finds that there is nothing in the record thus far to indicate that Congress has authorized construction of the reregulating dam. The lack of such authority constitutes a violation of 33 U.S.C. § 401. This court further finds that plaintiffs are likely to succeed on the merits of their contention that defendants have violated NEPA by failing to adequately consider alternatives to the LAURD project in the Environmental Impact Statement and Supplements.

The injury asserted by plaintiffs is both substantial and irreparable in that if Congress does not authorize construction of the reregulating dam, the injury to the environment and expenditure of public funds will be needless. The court recognizes that defendants will suffer damage as a result of this preliminary injunction. However, the damage to the environment and the importance of the public policies behind requiring Congressional authorization and adequate discussion of alternatives under NEPA on such a major water development project as LAURD are of such priority that a balancing of the resulting damage to the parties militates in favor of granting the preliminary injunction. Finally, this court finds that the public interest lies with both the plaintiffs and defendants to this action. Having considered the above interests, it is the opinion of this court that a preliminary injunction must be granted.

The court does not believe plaintiffs have made a sufficient showing of likelihood of success nor of irreparable harm as to the Endangered Species Act, Water Resources Planning Act, and the National Historic Preservation Act. However, issuance of the preliminary injunction on the other bases will have the practical effect of permitting the consultation process under the Endangered Species Act and further archeological discovery pursuant to the National Historic Preservation Act to continue without hindrance from further construction of the LAURD project.

THEREFORE, IT IS ORDERED and ADJUDGED that the defendants, their agents, employees, assigns, and contractors, are hereby enjoined from authorizing or undertaking any actions in furtherance of construction of the "LAURD" project. This preliminary injunction specifically precludes the letting of bids to private contractors, the procuring of turbines or other equipment, and any other activities which would entail the expenditure of Federal funds and which would advance construction of the "LAURD" project. This injunction specifically does not apply to activities which are necessary in order to accomplish compliance with the law and enhancement of the environment. Examples of acts which are not hereby enjoined are further study of the Bald Eagle and its habitat in preparation for compliance with the Federal Endangered Species Act, and archeological activities designed to accomplish compliance with federal and state laws dealing with protection of antiquities. This injunction specifically does apply to various construction activities and activities designed to accomplish the construction of the "LAURD" project which cannot be characterized as environmentally enhancing, an example is the further construction of turbines in connection with the additional generating units planned for the main Libby Dam. The court makes this order with the realization that construction of the reregulating dam is necessary to avoid severe environmental damage resulting from the down-stream fluctuation in the water of the Kootenai River which will result from the operation of the additional generating units. Because the court believes that Congress has not yet authorized construction of the reregulating dam, and that the dam is necessary to the operation of the additional units, construction of such units must also be enjoined.

IT IS FURTHER ORDERED that any activities which are reasonably characterized as activities in connection with completion of the main Libby Dam and reservoir are exempted from the present injunction. In addition, Federal defendants are not enjoined from taking reasonable actions necessary to accomplish winding down of present activities which are being undertaken on the "LAURD" project. The court orders that the Federal defendants, within 15 days, of this order, submit to the court a list of activities which are necessary to accomplish a winding down of the present "LAURD" project, and also a list of actions presently undertaken which may be properly categorized as associated with construction of the main Libby Dam and reservoir as opposed to the "LAURD" project.

IT IS ORDERED that this injunction is preliminary in nature and will remain in effect pending full hearing on the question of issuance of a permanent injunction. In the interests of justice the court desired to issue this order as soon as it could. However, because of the magnitude and complexity of the issues raised, the court will supplement this order with a memorandum as soon as possible. This order for preliminary injunction shall take effect immediately.

MEMORANDUM IN SUPPORT OF GRANT OF PRELIMINARY INJUNCTION

The project challenged in this lawsuit involves a major water development on the Kootenai River in Lincoln County, Montana, and is referred to as The Libby Additional Units and Reregulating Dam (LAURD). The Corps of Engineers plans to construct four additional electrical power generating units of 105,000 kilowatt capacity each at the main Libby Dam.¹ In connection with the installation of the additional generating units, the Corps plans to construct a new dam on the Kootenai River approximately ten miles downstream from the main dam, the purpose of which is to hold water in order to regulate downstream fluctuations that will result from variable releases at the main dam. The reregulating reservoir will inundate approximately ten miles of the Kootenai River.

Plaintiffs have moved, pursuant to Rule 65(a) Fed.R.Civ.P. for a preliminary injunction to enjoin defendants from proceeding with construction of LAURD. The factors to be considered by a court in deciding such a motion are: (1) the likelihood that movants will be successful at a trial upon the merits; (2) the irreparable harm movant will suffer; (3) the relative balance between the damage movants will suffer without an injunction against the damage defendants will suffer from an injunction; and (4) the public interest. King v. Saddleback Junior College District, 425 F.2d 426, 427 (9th Cir. 1970). The court has jurisdiction of the matter pursuant to 28 U.S.C. § 1331(a), and plaintiffs' standing is established by their allegation that numerous members of plaintiff organizations would be injured by construction of the LAURD project. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d...