Crowther v. Seaborg

Decision Date16 March 1970
Docket NumberCiv. A. No. C-1702,C-1712,C-1722.
Citation312 F. Supp. 1205
PartiesRichard 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, Plaintiffs, v. Dr. Glenn T. SEABORG, Chairman of the Atomic Energy Commission, Austral Oil Company, and CER Geonuclear Corporation, Defendants. COLORADO OPEN SPACE COORDINATING COUNCIL, on behalf of all those entitled to the protection of their health and safety and 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 degradation resulting from contamination with radioactive material released as a result of the defendants conduct of Project Rulison, and all others similarly situated, Plaintiffs, v. Dr. Glenn T. SEABORG, Chairman of the Atomic Energy Commission, Austral Oil Company, Incorporated and CER Geonuclear Corporation, Defendants. Martin G. DUMONT, District Attorney for Ninth Judicial District, Plaintiff, v. Dr. Glenn T. SEABORG, Chairman of the Atomic Energy Commission, Claude Hayward, Austral Oil Company, Incorporated and CER Geonuclear Corporation, Defendants.
CourtU.S. District Court — District of Colorado

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Bruce Miller, Boulder, Colo., for plaintiffs 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.

Victor J. Yannacone, Patchogue, N. Y., and Richard D. Lamm and Thomas W. Lamm, Denver, Colo., for plaintiff Colorado Open Space Coordinating Council.

Richard D. Lamm, Special Prosecutor for plaintiff Martin G. Dumont, Dist. Atty., Ninth Judicial District.

James L. Treece, U. S. Atty., Denver, Colo., for Government Defendants.

Carl Eardley, Department of Justice, Washington, D. C., for defendant Glenn T. Seaborg.

Thomas Fleming, Chief Counsel, Atomic Energy Commission, Las Vegas, Nev., and Marcus Rowden, Office of the General Counsel, Atomic Energy Commission, Washington, D. C., for defendants Atomic Energy Commission and Glenn T. Seaborg.

James D. Voorhees and John R. Moran, Denver, Colo., and John M. Berlinger, Las Vegas, Nev., for defendant CER Geonuclear Corporation.

James D. Voorhees and John R. Moran, Denver, Colo., and David T. Searls and John Murchison, Houston, Tex., for defendant Austral Oil Co.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

INTRODUCTION
Project Rulison

Project Rulison is a joint experiment sponsored by the Atomic Energy Commission (AEC), the Department of Interior and Austral Oil Company, Inc., (Austral). The program manager is CER Geonuclear Corporation (CER). Rulison is a part of the Plowshare Program of the AEC, which is designed to develop peaceful use of nuclear explosive technology. The specific purpose of the project is to study the economic and technical feasibility of nuclear stimulation of the low permeability gas bearing Mesaverde sandstone formation in the Rulison Field of Colorado. "Nuclear stimulation" is the detonation of a nuclear device in the formation which will create a cavity and attendant fracture system that will stimulate the production of natural gas from the formation. The Mesaverde formation, because of its low permeability, does not produce natural gas in commercial quantities, although it does contain a significant gas reserve.

The nuclear device was detonated at a depth of 8,431 feet at the Rulison site near Rulison, Colorado, on September 10, 1969. Prior to this detonation all three of the lawsuits dealing with the project had been filed and hearings held at which the various plaintiffs sought a preliminary injunction to halt the detonation. This Court denied the preliminary injunctions and the denials were sustained by the Tenth Circuit Court of Appeals, 415 F.2d 437 (10th Cir. 1969) and No. 453-69. All three cases, Civil Actions C-1702, C-1712 and C-1722, are against essentially the same defendants, and this coupled with the identity of the subject matter rendered consolidation of the cases feasible. At the trial of the consolidated cases the plaintiffs sought a permanent injunction against the defendants to prohibit the planned flaring of the gas contained within the cavity created by the nuclear detonation. These plans will be discussed in detail below, but the general purpose of the proposed flaring is to determine the extent of stimulation of production, the dimensions and configuration of the cavity and fracture system, and the technical and economic feasibility of the entire project.

Identity of Parties

The plaintiffs in Civil Action C-1702 are: (1) Charles Morgan Smith, a resident of Colorado who owns property approximately seven miles from the Project Rulison site; (2) James Hopkins Smith, III, the son of the plaintiff Charles Morgan Smith, who occasionally accompanies his father to the property referred to above; (3) Richard L. Crowther, a resident of Colorado who owns real estate approximately thirty miles from Project Rulison; and (4) Willard Eames, a resident of Colorado who owns property approximately three and one-half miles from the Project Rulison site.

The defendants in Civil Action C-1702 are: (1) Dr. Glenn T. Seaborg, Chairman of the AEC; (2) Austral Oil Company, Inc., a Delaware corporation licensed to do business in Colorado; and (3) CER Geonuclear Corporation, a Delaware corporation licensed to do business in Colorado.

The plaintiff in Civil Action C-1712 is the Colorado Open Space Coordinating Council, Inc., (COSCC). COSCC is a nonprofit, public benefit corporation organized and existing under the laws of Colorado. COSCC purports to bring suit as a class action on behalf of all those persons entitled to the protection of their health, and on behalf of all those entitled to the full benefit, use and enjoyment of the natural resources of the State of Colorado.

The defendants in Civil Action C-1712 are: (1) Dr. Seaborg; (2) Austral; and (3) CER.

The plaintiff in Civil Action C-1722 is Martin G. Dumont, District Attorney for the Ninth Judicial District of the State of Colorado, on behalf of the people of the State.

The defendants in Civil Action C-1722 are: (1) Dr. Seaborg, substituted for defendant Atomic Energy Commission by stipulation of October 8, 1969; (2) Austral; (3) CER; and (4) Claude Hayward, the owner of the property on which the Rulison detonation occurred.

ISSUES PRESENTED

The parties were unable to agree upon the wording of the factual issues in the submitted pretrial order. Our review of the evidence presented at trial, the numerous pleadings, and the briefs of the parties filed leads to the conclusion that the following outlined issues of fact and law satisfactorily delineate the areas of contention among the parties. These issues as set out will govern the order of disposition of the three suits in this opinion.

Issues of Law

Because the defendants reserved certain issues relating to the jurisdiction of the Court, these will be disposed of first. The first four issues of law may be considered the jurisdictional issues presented.

1. Do the plaintiffs have standing to sue?
2. Is there a justiciable controversy entitling plaintiffs to declaratory relief?
3. Are the plaintiffs' actions unconsented suits against the United States?
4. Are the plaintiffs seeking review of and an injunction against discretionary acts of the AEC which are not subject to judicial review?

5. Is the AEC following its Congressional mandate and its own rules and regulations in that the actions and plans for protecting health and minimizing danger to life and property are a reasonable exercise of its statutory authority?

6. Are the plaintiffs entitled to an order directing the AEC to answer all questions and to turn over to the plaintiffs all information regarding Project Rulison?

Issues of Fact

The ultimate issue of fact presented by these cases is whether the proposed flaring of gas from the Rulison cavity will endanger life, health and property of the plaintiffs or any other similarly situated, in contravention of the mandate of the Atomic Energy Act. In determining this issue, five subsidiary issues have been raised by the parties and must be disposed of. These are:

1. Do the Rulison plans make reasonably adequate provision for the protection of the health and safety of human, plant and animal life?

2. Are these plans for flaring within the radiation protection standards of the AEC and the Federal Radiation Council (FRC)?

3. Are the defendants prepared and equipped to actually implement the plans for flaring, thus insuring the protection of health and safety?

4. Are there safe economical alternatives to the proposed flaring as a means of determining the effectiveness of the Rulison detonation?

5. Are the FRC and AEC radiation protection standards themselves reasonably adequate to protect life, health and property?

ISSUES OF LAW
1. Standing

Contrary to the assertion of defendant Seaborg in his brief filed August 25, 1969 that Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) is not pertinent to the issues presented by the complaint in this case, the Court believes that Flast is more pertinent than Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (relied upon by the defendant). Flast should be the starting point of an analysis of the issue of standing. Although both Flast and Frothingham deal with the specific problem of a taxpayer's standing to challenge federal spending, Flast is the most recent comprehensive discussion by the Supreme Court of the...

To continue reading

Request your trial
26 cases
  • Westinghouse Elec. Corp. v. U.S. Nuclear Regulatory Commission
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 22, 1977
    ...1529, 6 L.Ed.2d 924 (1961); Porter County Ch. of Izaak Walton L. v. Atomic E. Com'n., 515 F.2d 513 (7th Cir. 1975); Crowther v. Seaborg, 312 F.Supp. 1205 (D.Colo.1970). See also Blast Endangers 8 at Nuclear Complex, N.Y. Times, Aug. 31, 1976, at 1, col. 8; Blast Causes Radiation, Phila. Eve......
  • Sierra Club v. Morton 8212 34
    • United States
    • U.S. Supreme Court
    • April 19, 1972
    ...(intest of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration); Crowther v. Seaborg, D.C., 312 F.Supp. 1205, 1212 (interest in health and safety of persons residing near the site of a proposed atomic 14 See Citizens Committee for Hudson Valle......
  • Sierra Club v. Froehlke
    • United States
    • U.S. District Court — Southern District of Texas
    • February 16, 1973
    ...immunity. Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 325 F.Supp. 749, 763 (E.D.Ark.1971); Crowther v. Seaborg, 312 F.Supp. 1205, 1219 (D. Colo.1970). In light of the above disposition, this Court does not reach the jurisdictional allegations advanced by plaintiffs ......
  • Writers Guild of America, West, Inc. v. FCC
    • United States
    • U.S. District Court — Central District of California
    • November 4, 1976
    ...jurisdiction over individual commissioners sued in their official capacity. They could not appropriately do so. See Crowther v. Seaborg, 312 F.Supp. 1205 (D.Col.1970). 26 As is discussed in section III, the question has been left open by the Supreme Court. It has not been ruled on by the Ni......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT