Libby Rod and Gun Club v. Poteat

Decision Date15 March 1979
Docket NumberNos. 78-3297,78-3307,s. 78-3297
Citation594 F.2d 742
Parties, 9 Envtl. L. Rep. 20,274 LIBBY ROD AND GUN CLUB et al., Plaintiffs-Appellees, v. John POTEAT et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Carl Strass (argued), Dept. of Justice, Washington, D. C., Nelson L. Bain (argued), of Sullivan, Beauregard, Clarkson, Moss, Brown & Johnson, Washington, D. C., for defendants-appellants.

James H. Goetz (argued), Bozeman, Mont., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, KENNEDY and TANG, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from a preliminary injunction which enjoined construction of the Libby Additional Units and Reregulation Dam (hereinafter LAURD) on the Kootenai River in Montana. 1

The project was authorized by the Flood Control Act of 1950 (the Act), Pub.L. 516, 64 Stat. 170 (May 17, 1950). Construction began on the main dam in 1966, and was completed in 1973. The Act authorized ten generators for the Libby Dam. Four were installed originally in the dam, and the Corps of Engineers (the Corps) intends to add four more as part of the LAURD project.

The additional units cannot be fully utilized without the construction of a reregulating dam downstream to modify river fluctuations resulting from the release of water from the main dam. The Corps, on the assumption that the 1950 Flood Control Act authorized a reregulating dam as well as the main Libby Dam, developed plans for building the reregulating facility. Funds were requested and Congress appropriated money specifically for the reregulating dam.

An Environmental Impact Statement (EIS), fashioned as a final supplement to the impact statement written for the main Libby Dam, was prepared in 1974. Apparently no objections were expressed when the draft EIS was circulated prior to the adoption of the final EIS.

Plaintiffs-Appellees Libby Rod and Gun Club, Montana Wildlife Federation, and Montana Wilderness Association (hereinafter Rod and Gun Club) sued in the district court, for a preliminary injunction enjoining construction of the reregulating facility. The Rod and Gun Club argued that the Corps: (1) violated 33 U.S.C. § 401 by proceeding with construction of the reregulating dam without Congressional approval; (2) violated the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; (3) failed to conduct a valid cost-benefit analysis of the project as required by the Flood Control Act of 1936, 33 U.S.C. §§ 701-09a; (4) violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq.; and (5) failed to comply with the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470t.

The district court entered a preliminary injunction enjoining all construction on the LAURD project, including the addition of generators to the main Libby Dam. The court based its ruling on two grounds: (1) that the Rod and The Corps appealed and moved for a stay of the injunction pending appeal. A motions panel of this court denied the motion, but allowed the Corps to continue expansion on the main Libby Dam pending appeal.

Gun Club would prevail because Congress had not authorized the LAURD project; and (2) that the Rod and Gun Club similarly had demonstrated that the Corps had not complied with NEPA, in that it had failed adequately to consider alternatives to the LAURD project.

I. AUTHORIZATION

Although this is an appeal from the granting of a preliminary injunction, the parties suggest that, because no further evidence is to be presented on the authorization question, the district court's holding on that issue should be treated as a final decision. We conclude that the public interest can be served best by reviewing this aspect of the case as an appeal on the merits.

Congressional authorization is required before a dam may be constructed on a navigable river. 33 U.S.C. § 401 (1976). Section 401 provides in relevant part:

It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any . . . navigable river . . . until the consent of Congress to the building of such structures shall have been obtained . . . .

The section has been interpreted to apply to federal dam construction projects. United States v. Arizona, 295 U.S. 174, 183-84, 55 S.Ct. 666, 79 L.Ed. 1371 (1935); Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610, 616 (D.D.C.1974), Vacated 431 F.Supp. 722 (D.D.C.1977). 2

A. THE FLOOD CONTROL ACT OF 1950.

The Corps contends that the Act of 1950, which authorized the construction of the main Libby Dam, also authorized a reregulating dam. The Act contains no reference to a reregulation facility. It does incorporate by reference H.R.Doc.No.531, 81st Cong., 2d Sess. (1950), which sets forth the Corps' recommended plans for construction of the Libby Dam. Paragraph 165 of the document states:

165. Reregulation. A sudden increase of flow from no load at minimum release to full load would raise the river stage at the dam about 15 feet. This sudden rise in stage partly would be absorbed by channel storage, decreasing in amount as its front traveled downstream. It is estimated that the maximum rise would amount to about 5 feet at the city of Libby, less than 3 feet at Troy, and less than 2 feet at Bonners Ferry. Just what effect this stage variation might have along the river is unknown at this time. However, the probable operation of the Libby generating station calls for this wide variation of load very seldom. If it becomes necessary to reduce this fluctuation, reregulation will be considered when the need arises.

(Emphasis added.)

The Corps argues that because P 165 placed Congress on notice of the possible need for a reregulating dam if additional turbines were placed in the main Libby Dam, the authorization of the general Libby Dam project contained in the Flood Control Act included explicit authorization of a reregulating facility.

We do not read P 165 to support the conclusion that Congress intended explicitly to authorize a reregulating dam. To the contrary, the paragraph indicates that the need for a reregulating facility was unclear when the main Libby Dam was authorized, and that the necessity of such a reregulating facility was to be evaluated if and when "the need arises." 3 We agree with the district court that such tentative reference to reregulation cannot be construed as explicit authorization of a reregulating dam.

The Corps further argues that, even if the Flood Control Act cannot be read explicitly to authorize a reregulating dam, it nonetheless authorized the addition of turbines to the main Libby Dam. Because these additional turbines cannot be fully utilized without a second dam, the Corps contends that by authorizing them Congress necessarily authorized the reregulation dam by implication.

We decline to adopt this proposition for two reasons. First, § 401 mandates that the consent of Congress be obtained before beginning construction of a dam. Assuming Arguendo that certain aspects of the Libby Dam project not specifically referred to by Congress in the Flood Control Act may have been authorized by implication because they are necessary to the effective functioning of the main Libby Dam, we cannot extend such implied authorization to a second dam in light of the requirement that Congress explicitly authorize dam projects. The Corps fails to present this court with applicable authority to support the view that the necessity of a dam will allow a court to infer its authorization, and we feel constrained in this case to follow the clearer dictates of § 401.

Second, the very language of P 165 militates against implying authorization of a second dam. As we have noted, that paragraph indicates that the need for reregulation was uncertain when Congress passed the Flood Control Act, and that the necessity of a reregulation facility Would be examined "when the need arises." To conclude that a reregulating dam was authorized by necessity would frustrate the congressional intent to examine the need for a reregulating dam expressed in P 165.

We therefore reject the Corps' first argument that the Flood Control Act of 1950 authorized the reregulating dam, either explicitly or by implication.

B. CONGRESSIONAL APPROPRIATIONS AND AUTHORIZATION.

Congress has on a number of occasions appropriated funds specifically for the construction of the reregulating dam. 4 The Corps contends that such appropriations are equivalent to authorization of the second dam. The Rod and Gun Club conversely argues, and the district court agreed, that the recent Supreme Court ruling in T. V. A. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), holds directly that the appropriation of funds should not be construed to represent authorization of a project.

The Rod and Gun Club further buttresses this argument by referring this court to a number of cases where congressional funding of a project has not been viewed as representing implicit authorization of that project. See e. g. Greene v. McElroy, 360 U.S. 474, 505, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); D. C. Federation of Civic Associations v. Airis, 129 U.S.App.D.C. 125, 128-29, 391 F.2d 478, 481-82 (1968).

We are not convinced that these cases address issues that are necessarily analogous to those presented by this appeal, nor that they mandate the conclusion that courts can never construe appropriations as congressional authorization. However, we do conclude that T. V. A. v. Hill, although clearly distinguishable on the facts, nonetheless creates serious questions as to the Corps' claim that the appropriation of funds for a project should generally be regarded as project authorization. Id. 437 U.S. at 190-92, 98 S.Ct. 2279. 5

Reviewing the facts of this case, we find no evidence in the record that Congress intended the appropriations for the reregulating dam...

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