Environmental Defense Fund, Inc. v. Andrus
| Decision Date | 18 April 1979 |
| Docket Number | Nos. 76-3133,76-3506,s. 76-3133 |
| Parties | , 13 ERC 1415, 9 Envtl. L. Rep. 20,268 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, State of Montana, By and Through the Department of Natural Resources and Conservation, Plaintiff in Intervention, v. Cecil D. ANDRUS, Secretary of Interior, et al., Defendants-Appellees, American Metal Climax, Inc., et al., Defendants in Intervention, Kerr-McGee Corporation, Defendant in Intervention. STATE of Montana, By and Through the DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Plaintiff in Intervention-Appellant, v. Cecil D. ANDRUS, Secretary of Interior, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George W. Pring, Denver, Colo., Cale Crowley, Billings, Mont., for plaintiffs-appellants.
Edward W. Clyde, Salt Lake City, Utah, Peter R. Taft, Asst. Atty. Gen., Thomas Olson, Richard E. McCann, Billings, Mont., Peter R. Steenland, Jr., Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the District of Montana.
Before ELY and KILKENNY, Circuit Judges, and FERGUSON, * District Judge.
This is an appeal from the district court's grant of summary judgment in favor of the defendants. Environmental Defense Fund, Inc. v. Morton, 420 F.Supp. 1037 (D.Mont.1976).
In 1944, Congress passed the Flood Control Act, 58 Stat. 887, which established water projects throughout the Missouri River Basin. Two of the projects authorized by the Act are the Yellowtail and Boysen Reservoirs located in Montana and Wyoming. The Department of Interior began a program in 1967 for marketing water from these reservoirs for industrial uses. By 1974, when the action was filed, 658,000 acre feet of water per year had been committed in option contracts for industrial uses. This is approximately 28 percent of the two reservoirs' combined capacity.
Appellants, a coalition of environmental, wildlife and agricultural organizations, including irrigation districts, a livestock company and individual farmers and ranchers, sued for injunctive and declaratory relief, claiming that sale of water from these particular projects for industrial uses was a violation of the Flood Control Act. The district court granted summary judgment for the defendants and found that the Secretary of Interior had properly exercised his statutory authority and had violated neither the National Environmental Protection Act (NEPA) nor the Fish and Wildlife Coordination Act.
Four issues are presented on this appeal. Appellants contend that the district court erred in finding that:
(1) the Secretary of Interior had authority to enter into option contracts for the sale of water for industrial uses from the Yellowtail and Boysen Reservoirs;
(2) the Secretary properly determined that the industrial water sales would not impair the efficiency of the two water projects for irrigation purposes;
(3) no environmental impact statement (EIS) was required for either the regional marketing plan or the individual option contracts; and
(4) the Fish and Wildlife Coordination Act does not apply to projects constructed prior to its enactment.
The district court is affirmed as to the first and second issues but is reversed on the third and fourth.
The district court, in a comprehensive opinion, reviewed the Flood Control Act of 1944 and its legislative history and held that the Act authorized industrial use of project water, including water from the Boysen and Yellowtail Reservoirs. The court found that marketing of water for such purposes must be done in accordance with federal reclamation law and, under this law, the Secretary of Interior had authority to sell water for industrial use only if "it will not impair the efficiency of the project for irrigation purposes." 43 U.S.C. § 485h(c).
This court agrees with the district court's interpretation of the relevant statutes and legislative history and affirms the district court's ruling on this issue.
Appellants claim that the Secretary of Interior did not properly exercise his authority when determining that the marketing program for industrial water would not impair the efficiency of the projects for irrigation purposes. The district court carefully set forth the scope of the Secretary of Interior's authority and the standard for review of the Secretary's decision. The district court properly concluded that the administrative record provides sufficient explanation and justification for the Secretary's action and there was no error in the administrative determination.
The Yellowtail and Boysen Reservoirs are located in the Northern Great Plains, a region which includes portions of southeast Montana, northeast Wyoming, and western North and South Dakota. The Yellowstone River Basin covers much of this region with the Yellowstone River itself flowing eastward from Yellowstone National Park across southern Montana to join the Missouri River at the Montana-North Dakota border. Three major tributaries flow into the Yellowstone: the Bighorn, Tongue and Powder Rivers. The Yellowtail Reservoir is located on the Bighorn River and the Boysen Reservoir is on the Wind River, a tributary to the Bighorn and Yellowstone Rivers.
Water is a precious and limited resource throughout the Northern Great Plains. The region is sparsely populated and semi-arid with an economy based predominately on farming and ranching. This region, however, also contains one of the richest strippable coal deposits in the world, the "Fort-Union Formation." Private industry is active in conducting feasibility studies of petro-chemical development based upon these coal deposits. The availability of water for industrial use in such development is a key factor of feasibility. Thus numerous petroleum and mining companies applied to purchase options for water from the Yellowtail and Boysen Reservoirs as part of their plans to develop the coal deposits. Allocation of the region's water resources will determine the nature and extent of future development, whether agricultural or industrial.
In 1967, the Secretary of Interior began an industrial water marketing program. Neither reservoir at that time had any water set aside for industrial use and, in a series of decisions, the Secretary approved and allocated 832,000 acre feet of water per year for sale for these purposes. Between 1969 and 1971, pursuant to this plan, the Secretary executed 17 water supply option contracts committing 658,000 acre feet per year for industrial use.
The Boysen Reservoir has a total capacity of 952,400 acre feet of water and the Yellowtail Reservoir has a capacity of 1,375,000 acre feet. Neither reservoir presently provides contract water for agriculture but water from both supplements downstream irrigation. Industrial use of the water would reduce these benefits to irrigation since industrial use would likely provide little or no return flow to the rivers.
No EIS has been prepared for either the industrial water marketing program or any of the individual option contracts. Appellants assert that NEPA requires an EIS for both the overall plan and the individual contract. This court agrees.
NEPA provides that an impact statement must be prepared and included " in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the environment." 42 U.S.C. § 4332(C). As the Supreme Court noted in Kleppe v. Sierra Club, 427 U.S. 390, 399, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1974), when there is no proposed legislation, a party can successfully urge preparation of an EIS only if there is a report, recommendation or proposal for major federal action.
The district court relied on Kleppe in finding that an EIS was not necessary for either the overall marketing plan or the individual option contracts. The court stated that there is no plan or proposal which could be the subject of an EIS. 420 F.Supp. at 1048. In Kleppe, the Supreme Court rejected the argument that a regional EIS analysis should be made to estimate the effect of various federal programs on the coal reserves of the Northern Great Plains region. The Supreme Court found that "there is no evidence in the record of an action or a proposal for an action of regional scope." 427 U.S. at 400, 96 S.Ct. at 2726. The Court stated:
Absent an overall plan for regional development, it is impossible to predict the level of coal-related activity that will occur in the region identified by respondents, and thus impossible to analyze the environmental consequences and the resource commitments involved in, and the alternatives to, such activity. 427 U.S. at 402, 96 S.Ct. at 2726.
Here there is an overall plan for marketing water from the Yellowtail and Boysen Reservoirs. The Secretary of Interior's action is not mere "contemplation." There has been a proposal for federal action and action has been taken. The Secretary of Interior has determined that the Yellowtail and Boysen Reservoirs can contribute 832,000 acre feet of water per year for industrial use. A marketing program has been developed and option contracts committing hundreds of thousands of acre feet of water for industrial use have been executed in accordance with the program.
The district court believed that "(t)here is no way that a present evaluation could be made of the environmental impact of all the potential means of putting industrial water to beneficial use." 420 F.Supp. 1037 at 1048-1049. In focusing on the uncertainty of industrial use if and when the option contracts are exercised, the court ignored the definite federal action already taken in major commitment of project water to industrial use. Any uncertainty about the details of subsequent use...
To continue reading
Request your trial
-
Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt.
...Sierra Club , 427 U.S. 390, 412–15, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ).78 Ninth Circuit order, at 3–4 (citing Env't Def. Fund v. Andrus , 596 F.2d 848, 852 (9th Cir. 1979) and Port of Astoria v. Hodel , 595 F.2d 467, 478 (9th Cir. 1979) ); see Merrill Lynch, Pierce, Fenner & Smith Inc. ......
-
Thomas v. Peterson
...had proposed to make an irreversible and irretrievable commitment of resources. Id. at 762-64; see also Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir.1979). Under NEPA, agencies are directed to examine in a single EIS all "connected actions" or "cumulative actions".......
-
State of Cal. v. Block
...commitment of the availability of resources" to a project at a particular site. Id. at 1168; see also Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979). The fundamental issue presented here is whether a "critical decision" has been made with respect to site devel......
-
Columbia Basin Land Protection Ass'n v. Schlesinger
...impact, a separate EIS for each Memoranda is not required. This case is different from that presented by Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848 (9th Cir. 1979). That case dealt with the Yellowtail and Boysen Reservoirs located in the Northern Great Plains area of the Unite......
-
One hell of a grand idea: applying the lessons of the Grand Canyon experiment to FERC's relicensing of the Hells Canyon complex.
...16 U.S.C. [sections] 662(c) (1994). (217) Id. [sections] 663(a). (218) Id. [sections] 662(b); Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 853 (9th Cir. 1979) ("[T]he clear language of the statute shows that the Act applies to `modification or supplementation of plans for previ......