Friends of the Earth v. Armstrong

• Decision Date: 21 January 1974
• Docket Number: No. 73-1223 and 73-1278 to 73-1283.,73-1223 and 73-1278 to 73-1283.
• Parties: FRIENDS OF THE EARTH et al., Plaintiffs-Appellees, v. Ellis L. ARMSTRONG, Commissioner, Bureau of Reclamation, and Rogers C. B. Morton, Secretary of the Interior, Defendants-Appellants, State of Colorado et al., Defendants-Intervenors-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.2d 1 (1973)

FRIENDS OF THE EARTH et al., Plaintiffs-Appellees, v. Ellis L. ARMSTRONG, Commissioner, Bureau of Reclamation, and Rogers C. B. Morton, Secretary of the Interior, Defendants-Appellants, State of Colorado et al., Defendants-Intervenors-Appellants.

Nos. 73-1223 and 73-1278 to 73-1283.

United States Court of Appeals, Tenth Circuit.

August 2, 1973.

Certiorari Denied January 21, 1974.

Raymond N. Zagone, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., C. Nelson Day, U. S. Atty., Thomas L. McKevitt and Robert L. Klarquist, Attys., Dept. of Justice, with him on the brief), for defendants-appellants.

James B. Lee and Owen Olpin, Salt Lake City, Utah (Constance K. Lundberg and Chris Wangsgard, Salt Lake City, Utah, with them on the brief), for plaintiffs-appellees.

Kenneth Balcomb, Glenwood Springs, Colo. (Frank E. Maynes, Durango, Colo., with him on the brief), for intervenors-defendants.

Edward W. Clyde, Salt Lake City, Utah (Raphael J. Moses, Boulder, Colo., and Clyde O. Martz, Denver, Colo., with him on the brief), for intervenors-defendants, on rebuttal.

Before LEWIS, Chief Judge, and HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges, sitting en banc.

Certiorari Denied January 21, 1974. See 94 S.Ct. 933.

SETH, Circuit Judge.

These suits were commenced in the United States District Court for the District of Columbia, and transferred to the District of Utah. They are in the nature of mandamus, and seek also injunctive and declaratory relief. The initial defendants were the Secretary of the Interior and the Commissioner of the Bureau of Reclamation. The plaintiffs seek to have these officials take such action as may be necessary to prevent the water being impounded in Lake Powell from spreading into any part of Rainbow Bridge National Monument.

The plaintiffs are Friends of the Earth, a nonprofit membership corporation organized under the laws of New York. The purposes of this corporation include the "preservation," "restoration," and "rational use" of the environment in the United States and throughout the world. The plaintiff, Wasatch Mountain Club, Inc., is a nonprofit membership corporation organized under the laws of Utah with purposes similar to those of Friends of the Earth. The individual plaintiff is Kenneth G. Sleight of Utah who is head of a corporation which conducts for profit river tours and other tours including those to Rainbow Bridge. We hold the plaintiffs have standing to bring this action.

The intervenors-defendants-appellants include the States of Utah and Colorado, also several water conservation districts, and electrical power associations.

The plaintiffs, defendants, and intervenors all moved for summary judgment. Numerous affidavits were filed with attached tables, reports, maps, photographs, and other material; there was also filed a stipulation of facts. One witness testified as to the unsightly appearance which would result if water from the reservoirs entered the Monument.

The trial court, D.C., 360 F.Supp. 165 entered a judgment and decree granting plaintiffs' motion for summary judgment. This decree ordered the defendant officials to take action to have the waters from Lake Powell withdrawn from within the boundaries of Rainbow Bridge National Monument, and to prevent in the future such encroachment.

The defendants and intervening defendants have taken this appeal. The decree of the District Court was stayed pending an expedited hearing of this court sitting en banc on the appeal of the case on its merits.

This case reaches us on the issue of whether or not the trial court was correct in holding that certain provisions of the Colorado River Storage Project Act of 1956 (43 U.S.C. § 620), and especially sections 1 and 3 thereof prohibit any water from Lake Powell entering any part of the Rainbow Bridge National Monument.

The record shows that the water enters the Monument when the water level in Lake Powell reaches 3,606 feet above mean sea level. The plaintiffs did not assert a claim based upon the possibility of physical damage to the Rainbow Bridge itself, but relied upon the statutory provisions in the Colorado River Storage Project Act.

We must conclude that the trial court was in error, and the case must be reversed.

Rainbow Bridge National Monument:

This Monument was created by Presidential Proclamation in 1910, and is a square tract of 160 acres in the southernmost portion of Utah between the Colorado River Canyon and the Arizona state line. The Monument has been visited by few people in past years because of its isolated location. It is a very important Monument and contains a unique work of nature. Rainbow Bridge itself is an impressive natural sandstone arch of great size extending across the inner gorge or cut of Bridge Creek within a larger canyon. Within and under the span, the inner gorge of Bridge Creek is seventy to seventy-five feet deep and extends below the lower base or abutment of the arch. It has steep, rocky, shelving, sandstone sides. Bridge Creek is an intermittent stream which flows into Lake Powell, the reservoir created by Glen Canyon Dam. This reservoir is still in the process of filling, and thus the maximum water level has not been reached. The annual high water mark has varied from year to year depending on the runoff in the Colorado River Basin. The level also varies month by month, and will continue to do so, by reason of release of water from the reservoir for a variety of purposes.

As the level of Lake Powell rises, the water, of course, backs up the side canyons including that of Bridge Creek. When the water level in the Lake reaches 3,606 feet above mean sea level, the reservoir water has moved up the bed of Bridge Creek to a point at the outer boundary of the 160-acre tract of land comprising Rainbow Bridge National Monument. At any higher level the water enters the Monument within the creek bed at the bottom of the deep Bridge Canyon. When the water level of Lake Powell reaches the level of 3,700 feet above sea level, which is the maximum design capacity for Glen Canyon Dam, the reservoir water will be standing in the inner gorge of the creek under the Rainbow Bridge Arch. At this level the water will there have a depth of about forty-eight feet, but will not rise enough to get out of the gorge or to reach the base of the Rainbow Bridge Arch since this point is some twenty-five feet above that level. The water, however, would then be well within the boundaries of the Monument although confined in the inner gorge of the creek.

As indicated, the water level is subject to frequent and wide variations. This results in an unsightly deposition of sediments and debris, as well as a conspicuous staining of the rocks at the various water levels all through the reservoir area.

The waters from Lake Powell first entered the outer boundaries of the Monument in May 1971, and withdrew as the Lake level dropped but again entered one or more times.

Glen Canyon Dam:

This Dam is on the Colorado River near the Arizona-Utah boundary and was built in the period 1957 to 1964. The Dam has a maximum design capacity at 3,700 feet above sea level. There are two large spillways, each with gates, and designed to handle a flow of 276,000 cubic feet per second. Water may be also discharged from the Lake into the power generating plants at a rate of 25,000 cubic feet per second when there is a full demand for power. The centers of the intakes to the power plant are at 3,470 feet above sea level. There are additional outlet works or bypasses whereby water may be released through the Dam at 3,374 feet elevation at a maximum rate of 15,000 cubic feet per second. The maximum capacity of the outlet works below the level of the spillways is thus 40,000 cubic feet per second. This is a factor which is significant, and will be referred to later herein.

With a water level of 3,700 feet, the total storage capacity of the Lake is estimated at 27,000,000 acre feet. At the level of 3,606 feet as ordered by the trial court, the total storage capacity is about 12,751,000 acre feet.

The power facilities at the Dam are designed to generate a large amount of electricity to provide additional power to the Southwest, and to the Pacific Coast. This power generation was considered by Congress at length in the hearings conducted on the proposed construction of the Dam, both as to the availability of the additional power, and the revenue to be derived from its sale. The planned quantity of electricity which was to be generated and the revenues therefrom were predicated upon the Dam being utilized to its maximum design capacity, and this would also provide a firm source on an annual basis.

Colorado River Waters:

The division or allocation of the waters of the Colorado River was commenced by the Colorado River Compact signed in 1922 by representatives of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming, subject to approval by the various state legislatures and by Congress. This Compact, which has the status of a treaty, is described in Arizona v. California, 373 U. S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, and is set out at 70 Cong.Record 324 (1928). This agreement divided the entire river basin in two parts, the Lower Basin and the Upper Basin, with the dividing point at Lees Ferry, Arizona, which is a short distance below Glen Canyon Dam. The water was apportioned 7,500,000 acre feet per annum to each Basin, with recognition given to a portion to be released to Mexico. The Compact further provided that the Upper Basin states will not cause the flow of the river at Lees Ferry to be depleted below an aggregate of 75,000,000 acre feet for any ten year period. As is indicated, the division of the water was made on the assumption that there would be available annually a total of 15,000,000 acre feet, and the Upper Basin obligation to deliver at Lees Ferry was so undertaken. Stream flow since the date the...