James River Flood Control Ass'n v. Watt

• Citation: 553 F. Supp. 1284
• Decision Date: 22 December 1982
• Docket Number: Civ. No. 81-1012.
• Parties: JAMES RIVER FLOOD CONTROL ASSOCIATION; Raymond Braun; Alfred Locken; William Oliver, Plaintiffs, v. James WATT, Secretary, United States Department of Interior; in his Official Capacity; Robert Broadbent, Commissioner, Bureau of Reclamation, in his Official Capacity; D.L. Krull, Project Manager, Bureau of Reclamation, in his Official Capacity, Defendants, Board of Directors, Garrison Diversion Conservancy District, Intervenor-Defendants.
• Court: U.S. District Court — District of South Dakota

553 F. Supp. 1284

JAMES RIVER FLOOD CONTROL ASSOCIATION; Raymond Braun; Alfred Locken; William Oliver, Plaintiffs, v. James WATT, Secretary, United States Department of Interior; in his Official Capacity; Robert Broadbent, Commissioner, Bureau of Reclamation, in his Official Capacity; D.L. Krull, Project Manager, Bureau of Reclamation, in his Official Capacity, Defendants Board of Directors, Garrison Diversion Conservancy District, Intervenor-Defendants.

Civ. No. 81-1012.

United States District Court, D. South Dakota, N.D.

December 22, 1982.

COPYRIGHT MATERIAL OMITTED

Thomas E. Klinkel, Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, S.D., for plaintiffs.

Andrew F. Walch, Atty., Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Dawn Bowen, Asst. U.S. Atty., Pierre, S.D., for Federal defendants.

Murray G. Sagsveen, Zuger & Bucklin, Bismarck, N.D., for intervenor-defendants.

Charles K. Dayton, Pepin, Dayton, Herman, Graham & Getts, Minneapolis, Minn., for amicus National Audubon Soc.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Plaintiffs seek injunctive and declarative relief, claiming violations of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) and that defendants are constructing a major irrigation project without authorization from Congress. The Court finds the challenged environmental statements to be adequate, and that defendants are still proceeding within the scope of their authorizing legislation. Judgment is therefore entered for defendants.

FACTUAL BACKGROUND

The earliest version of the Garrison Diversion Unit (GDU) was originally authorized by Congress in the Flood Control Act of December 22, 1944 (58 Stat. 887, 891). Investigations conducted subsequent to 1944 revealed that major portions of the proposed project were impractical, and the project plans underwent substantial revision during the 1950's. The final report of these revisions was embodied, with various supplements, in House Document 325, 86th Congress, Second Session. Congress, in the Act of August 5, 1965, 89th Congress, First Session (79 Stat. 433), authorized the GDU "substantially in accordance with the plans set out in the Bureau of Reclamation Report dated November 1962 (revised February 1965), supplemental report to said H.D. 325."

As enacted in 1965, the GDU was projected to ultimately irrigate 1,007,000 acres of land in North Dakota, as well as provide water for municipal, industrial, wildlife, and recreational uses throughout that state. The immediate authorization, though, was for the construction of an Initial Stage 250,000-acre unit. This Initial Stage development was intended to draw water from the Missouri River in North Dakota at Lake Audubon, a subimpoundment of Lake Sakakawea, transfer this water by way of the McClusky Canal to Lonetree Reservoir, and from there divert this water to several different sections of northern, east-central, and south-eastern North Dakota. Under the 1965 plans, most of the return flows from the irrigated acreage would enter rivers in the Hudson Bay drainage basin, and eventually be carried across the border into Canada. The return flows from the LaMoure-Oakes section of the GDU in south-eastern North Dakota, however, would enter the James River, in the Missouri River drainage basin, and be taken down that river into South Dakota.

Construction of certain parts of the GDU, particularly the Snake Creek Pumping Plant and the McClusky Canal, was commenced in the late 1960's and early 1970's. Although the project was therefore underway prior to the enactment of the National Environmental Policy Act of 1969 (NEPA), the Department of the Interior undertook to prepare environmental impact statements for the project in compliance with NEPA. A final environmental statement on the Initial Stage of the GDU was filed in 1974 (this statement will be hereafter cited as the 1974 FES), and was intended to cover in detail the Principal Supply Works (including the Snake Creek Pumping Plant and the McClusky Canal) as well as the cumulative overall impacts of the 250,000-acre project. At that time, defendants intended to prepare individual environmental statements for three of the particular irrigation areas in the GDU, and a LaMoure and Oakes Section, Draft Environment Statement was completed in 1976 (hereafter cited as 1976 DES) and made available to the public. A final version of the LaMoure and Oakes Section statement was prepared, but never filed.

The National Audubon Society¹ filed suit in the District of Columbia in 1976, to enjoin further construction of the GDU, raising issues relative to the 1974 FES, the Fish and Wildlife Coordination Act and the Migratory Bird Treaty Act.² In 1977, the United States Department of the Interior stipulated with the Society that the Department would prepare a comprehensive supplementary environmental statement, and the final version of this statement was completed in 1979 (hereafter cited as the 1979 FSES). The FSES makes the statement that it "supplements" the 1974 FES and 1976 DES, "and is intended to substitute for the three planned individual service and environmental statements."

The Canadian Government also took issue with the GDU, and expressed its concerns in a note to the United States in 1969. In the Canadian view, those return flows from the GDU that would ultimately pass into Canada would cause injury to health and property in Canada in contravention of the Boundary Waters Treaty of 1909. In 1974, the United States acknowledged its obligation under the Treaty and stated that no construction on the GDU affecting Canada would be undertaken until it was clear that the obligation would be met.

The governments of Canada and the United States referred the matter of GDU impacts on Canada to the International Joint Commission (IJC) in 1975. In 1976, the IJC recommended, inter alia, that a prototype irrigation test area be built to measure the quality and quantity of return flows. The House of Representatives Committee on Appropriation Report No. 95-1247, June 1, 1978 (accompanying H.R. 12928), stated that the Committee "expected" the Secretary of the Interior to carry out this recommendation for a test, and that construction should proceed of "irrigation and drainage facilities to serve an area not to exceed 5,000 acres in either the LaMoure or West Oakes irrigation area." In 1979, it was determined that a 5,000-acre area in West Oakes was representative of the lands to be irrigated in the GDU, and the decision was made to use that area for the test site.

This West Oakes test site is adjacent to the James River near Oakes, North Dakota, and is to be served by the Oakes Pumping Plant. The water supply will be drawn from the James River, utilizing releases from the Jamestown Reservoir as needed, and the return flows from irrigation will reenter the James River and pass into South Dakota. It is the development of this test site in particular that plaintiffs here seek to block.

Plaintiff James River Flood Control Association is composed of individuals who own land along the James River in the northern South Dakota counties of Brown and Spink. Individual plaintiffs are members of the Association. Plaintiffs' basic contention in their original complaint is that the 1974 FES and the 1979 FSES do not adequately describe or disclose the impacts of the GDU on South Dakota and therefore are in violation of NEPA. Plaintiffs, in an amendment allowed by this Court on May 7, 1982, also allege that, as a result of the discussions with the Canadian Government, the United States Department of Interior has agreed to proceed with a modified GDU plan (proposed by officials of the state of North Dakota) to reroute certain return flows that would otherwise reach Canada into the James River and thus into South Dakota. This modified plan, plaintiffs contend, is not "substantially in accordance" with the plans set forth in House Document 325, and is beyond the scope of the 1965 legislation that authorized the GDU.

DISCUSSION

I. SCOPE OF REVIEW

The adequacy of environmental statements are "subject to limited judicial review in the federal courts." Farmland Preservation Association v. Goldschmidt, 611 F.2d 233, 237 (8th Cir.1979). This review involves two functions. First, the court "must determine whether the challenged statement is adequate as a statement to satisfy the procedural requirements of NEPA." Id. The test to be employed in determining compliance with these

procedural provisions ... is one of good faith objectivity.... The touchstone of the inquiry is reason.... While the detailed statement must of course be more than a pro forma ritual ... the discussion of environmental effects and alternative courses of action need not be exhaustive.... The statement need contain only sufficient information to permit a reasoned choice of alternatives.... The purpose of NEPA is not to require an objection free document, but rather to give Congress, the responsible agencies, and the public a useful decision-making tool.

Minnesota Public Interest Research Group (MPIRG) v. Butz, 541 F.2d 1292, 1300 (8th Cir.1976). See State of Missouri ex rel. Ashcroft v. Department of the Army, 526 F.Supp. 660 (W.D.Mo.1980).

Although the duties imposed by NEPA on federal agencies are "`essentially procedural'", Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980), a district court must, once it has satisfied itself that the procedural requirements of NEPA have been met, "go further and engage in a limited substantive review of agency action to determine whether it passes muster under the scope of review provisions of the Administrative Procedure Act." Farmland Preservation Association, 611 F.2d at 237. The Court must "determine whether the agency reached its decision after a full, good faith consideration and balancing of environmental factors ... then...