Grand Canyon Dorries, Inc. v. Walker, No. 73-1853

• Decision Date: 20 August 1974
• Docket Number: No. 73-1853
• Citation: 500 F.2d 588
• Parties: 4 Envtl. L. Rep. 20,842 GRAND CANYON DORRIES, INC., et al., Appellants, v. Ronald H. WALKER, Director, National Park Service, et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 588

500 F.2d 588

4 Envtl. L. Rep. 20,842

GRAND CANYON DORRIES, INC., et al., Appellants, v. Ronald H. WALKER, Director, National Park Service, et al., Appellees.

No. 73-1853.

United States Court of Appeals, Tenth Circuit.

Aug. 20, 1974.

Constance K. Lundberg, Salt Lake City, Utah (Owen Olpin, Salt Lake City, Utah, with her on the brief), for appellants.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C. (Wallace H. Johnson, Asst. Atty. Gen., C. Nelson Day, U.S. Atty., and George R. Hyde, Atty., Dept. of Justice, with him on the brief), for appellees.

Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, ¹ District Judge.

SETH, Circuit Judge.

The several appellants are operators of commercial float trips on the Colorado River below Glen Canyon Dam. They appeal the dismissal of their action for declaratory and injunctive relief against the Secretary of the Interior and various named officials of the Bureau of Reclamation and the National Park Service. The gist of their complaint is that the ongoing operation of Glen Canyon Dam and particularly the intermittent reductions in the volume of water released below the dam interfere with the safe conduct of the plaintiffs' float trips. Such interference is claimed to be a continuing breach of the contractual rights allegedly implied in the concession licenses which the plaintiffs have been granted by the National Park Service. The plaintiffs' more serious contention, however, is that the continuing operation of Glen Canyon Dam is a major federal action 'significantly affecting the quality of the human environment,' and therefore the National Environmental Policy Act (NEPA) requires the preparation of a detailed environmental impact statement. 42 U.S.C. 4321 et seq.

Considering the contractual claims first, we find that the plaintiffs are in effect seeking specific performance of the Government's alleged obligations. Even if it were assumed that such obligations do arise from the plaintiffs' concession licenses, the court could not grant the relief requested. As we remarked in National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir.):

'We have fully considered the Supreme Court cases which prohibit injunctive relief against governmental officers on account of their upholding the rights of the government arising under a contract. Such a suit is distinguished by the Supreme Court from actions seeking compensation for an alleged wrong and are regarded as actions against the sovereign to which there has not been consent.'

Injunctive relief against the Government is not available in a contract action such as this, and the plaintiffs' remedy lies in an action for damages before the appropriate tribunal. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.

The potential application of NEPA to the ongoing operation of a dam planned and constructed prior to passage of the Act could be a substantial issue, but it is not properly before us.

It is readily apparent that both NEPA and the Guidelines promulgated thereunder rely heavily on agency action to achieve their stated objectives. While the action itself is mandatory, the considerations and objectives are stated only in general terms. Thus it is also apparent that great reliance is placed on the proper exercise of administrative discretion and the good faith efforts of each agency. For this reason the agencies are given latitude in weighing the environmental factors to be considered in their decisions. As the provisions in the Guidelines and the Departmental Manual illustrate, this latitude exists also with respect to projects undertaken before passage of the Act.

It is obvious that the subject of the retroactive application of NEPA is not a matter entirely within agency discretion. What we do recognize is that the matter must be determined in the first instance by the agency undertaking or operating the project. It is precisely this administrative determination...