Morgan v. Walter
| Decision Date | 30 October 1989 |
| Docket Number | Civ. No. 89-1233. |
| Citation | 728 F. Supp. 1483 |
| Parties | Randall MORGAN; William K. Chisholm; Ned Swisher; Dianne Elasick; Idaho Conservation League, Inc. and Hagerman Valley Citizens Alert, Inc., Plaintiffs, v. Lt. Col. James A. WALTER, United States Army Corps of Engineers; Delmar Vail, United States Bureau of Land Management; Earl M. Hardy; and Box Canyon Trout Co., Inc., Defendants. |
| Court | U.S. District Court — District of Idaho |
Jeffrey C. Fereday, Givens, Pursley, Webb & Huntley, Boise, Idaho, for plaintiffs.
D. Marc Haws, Office of the U.S. Atty., William F. Ringert, Ringert, Clark, Harrington, Reid, Christenson & Kaufman, Chartered, Boise, Idaho, for defendants.
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs' motion for preliminary injunction came on for hearing on September 29, 1989. Jeffrey Fereday, Esq. appeared on behalf of the plaintiffs; Assistant United States Attorney D. Marc Haws appeared on behalf of defendants Lt. Col. James A. Walter, United States Army Corps of Engineers, Delmar Vail, and United States Bureau of Land Management; and William Ringert, Esq. appeared on behalf of defendants Earl M. Hardy and Box Canyon Trout Co., Inc.
The court having reviewed the pleadings, affidavits and exhibits submitted in support of and opposition to the motion, having heard the oral arguments of counsel and the testimony of witnesses, and being fully advised as to the premises herein, grants plaintiffs' motion.
Since 1969, Defendant Earl M. Hardy ("Hardy") has owned approximately 260 acres of land in southern Idaho which includes a large portion of an area commonly known as Box Canyon and a substantial portion of an area commonly known as Blind Canyon. Box Canyon is largely unspoiled and contains many fresh water springs which feed into the 1.5 mile long Box Canyon Creek which empties into the Snake River.
Approximately 41.2 acres within Box Canyon is owned by the United States and is administered by defendant Bureau of Land Management ("BLM"). Due to the admittedly unique natural values of this area, BLM designated its holdings in and around Box Canyon as an Area of Critical Environmental Concern ("ACEC"). This was done as part of the Monument Resource Area Management Plan ("MRAMP") which was completed by BLM in December, 1985.
In order to operate a fish propagation facility on his property near the mouth of Blind Canyon, Hardy proposes to build a diversion facility and a flume on Box Canyon Creek. The dam would divert water to the adjacent Blind Canyon where the hatchery is to be located. The diversion structure is proposed to be built on lands owned by the United States and administered by BLM.
The natural flow of Box Canyon Creek is approximately 720 cubic feet per second ("cfs"). This flow has already been reduced considerably by the Clear Springs facility which is located on the south side of the Snake River opposite Box Canyon. Hardy's project proposes to divert an additional 257 cfs leaving a flow of 75 cfs, or approximately 10% of the creek's natural flow.1
Hardy joined in an application for a right of way in 1970. In 1982, after conducting environmental studies, BLM denied Hardy's application but later reinstated the application to allow Hardy to submit additional information and mitigation proposals. In connection with evaluating Hardy's proposed project, BLM began a series of land planning procedures, which resulted in the MRAMP and the ACEC plan.
BLM prepared an Environmental Impact Statement ("EIS") in connection with the MRAMP which covers both Box and Blind Canyons. In November 1986, BLM eventually issued a right of way to Hardy which authorizes the construction, operation, and maintenance of his proposed diversion facility and flume on BLM property.
In connection with its issuance of a right of way, BLM prepared an Environmental Assessment2 ("EA") which addressed the environmental impacts of the proposed right of way agreement with Hardy on the ACEC. The EA specifically addressed two possible alternatives:3 (1) denying the right of way proposal ("Alternative One"); and (2) granting the right of way but including specific mitigation measures to accomplish certain levels of environmental protection and/or enhancement to assure the objectives of the ACEC Management Plan are met ("Alternative Two"). The environmental assessment treated Hardy's proposal as an environmentally adverse action and not in conformance with the ACEC Management Plan.
In determining the environmental impact of denying Hardy's right of way proposal under Alternative One, BLM considered the potential consequences of the denial in terms of Hardy's other development alternatives. BLM recognized that should it deny Hardy the right of way on public lands he requested, he had several options including constructing a diversion at the mouth of Box Canyon; developing the upper Box Canyon; diverting water bypassing the existing Clear Springs diversion; or "using other means to recover investment." BLM EA, p. 3. The BLM environmental assessment separately addressed each of these possible actions which Hardy might take as a consequence of BLM's outright denial of a right of way.
Giving consideration to the possible consequences inherent in Alternative One, BLM determined in its EIS that Alternative Two, which required several mitigation measures to be taken by Hardy to protect the environment, was preferable to Alternative One and would satisfy the concerns of all relevant agencies.
The right of way agreement as negotiated between BLM and Hardy contained twenty-four stipulations which impose specific restrictions and requirements on Hardy with respect to both building the dam and maintaining the property. BLM determined, in its EA, that an Environmental Impact Statement ("EIS") would not be required since the restrictions and requirements of the right of way agreement adequately addressed the environmental impacts of the project.
In June of 1989, the Army Corps of Engineers ("the Corps") issued a 404 permit4 to Hardy authorizing construction of the diversion structure and flume. The Corps initially rejected Hardy's application in November 1987 because by-pass flow features and a fish ladder were not included in the proposal. On March 1, 1989, the Corps accepted Hardy's amended application after it was revised to include the by-pass flow and fish ladder.
The Corps relied extensively on the EA prepared by BLM and the mitigation proposal which it contained in reaching its own decision not to prepare an EIS. The Corps' EA which considered four alternatives, determined that the issuance of the 404 permit would not have a significant impact on the quality of the human environment and therefore an EIS was not mandated.
The permit was issued on June 30, 1989 and included terms and conditions designed to protect the environment and to mitigate any adverse effects that the project might have.
Plaintiffs filed their complaint on August 29, 1989 against BLM, the Corps and their officers and agents seeking declaratory judgment and injunctive relief. Plaintiffs amended their complaint to join defendant Hardy shortly thereafter. Plaintiffs include two environmentally concerned citizens groups and individual citizens residing in the Hagerman Valley, an area adjacent to the Box and Blind Canyons. They allege violations of the National Environmental Policy Act ("NEPA"), the Clean Water Act ("CWA"), the Federal Land Policy and Management Act ("FLPMA"), and the Administrative Procedure Act ("APA").
Plaintiffs now seek a preliminary injunction to prohibit Hardy from beginning construction on the diversion structure until an EIS has been prepared in compliance with NEPA. Plaintiffs assert that an EIS is required since the Corps and BLM failed to adequately address important issues with respect to the project's impact on candidate species,5 the aquatic ecosystem, water quality, riparian vegetation and on Blind Canyon. Plaintiffs also argue that the defendants did not consider the cumulative impacts of existing and proposed projects in Box Canyon or the impact of ACEC classification.
On September 29, 1989, a hearing was held on plaintiffs' motion. Plaintiffs presented the testimony of Michelle Stevens, a wetlands expert and former EPA employee who was involved in the assessment of the Hardy project. Ms. Stevens testified in accordance with a memorandum she prepared as an EPA employee which listed several environmental concerns which she recommended be addressed prior to project approval. She testified that in her opinion Hardy's mitigation proposal was inadequate and did not meet EPA's mitigation policy or address the previously stated concerns. She also testified that in her opinion the Corps' EA inadequately considered the direct and cumulative impacts of the Hardy project including the impact on wetlands.
Defendants presented the testimony of Robert Cordell who is the Bennett Hills Resource Area Manager for BLM and the employee responsible for the issuance of the right of way to Hardy. Mr. Cordell testified with respect to the considerations that went into the preparation of the BLM EA and the procedures which were followed.
After testimony and argument were presented at the hearing, defendant Hardy agreed to delay commencing construction of the dam pending the court's decision on plaintiffs' motion. The court took the matter under advisement.
On October 12, 1989, the government defendants filed a motion to hold the court's decision in abeyance for a period of fourteen days in order to allow BLM and the Corps to evaluate the presence of Lanx in Box Canyon.6 The court granted the government's motion on the condition that Hardy not begin construction activities during the additional stay. The court also allowed further briefing on the Lanx issue.
To obtain a preliminary injunction plaintiffs must show either:
(1) a combination...
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Alpine Lakes Protection Soc. v. US Forest Serv., C93-600R.
...by private parties if the federal actions are so interrelated as to constitute "links in the same bit of chain". Morgan v. Walter, 728 F.Supp. 1483, 1493 (D.Idaho 1989) (quoting Sylvester v. U.S. Army Corps of Engineers, 884 F.2d 394 (9th Cir.1989)). See also Port of Astoria, Oregon v. Hode......
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Review of Adverse Decisions
...55 F. Supp. 2d 658 (S.D. Tex. 1999); Johnson v. U.S. Army Corps of Eng’rs, 6 F. Supp. 2d 1105 (D. Minn. 1998); Morgan v. Walter, 728 F. Supp. 1483, 20 ELR 20731 (D. Idaho 1989); Missouri Coalition for the Env’t v. U.S. Army Corps of Eng’rs, 678 F. Supp. 790, 19 ELR 20581 (E.D. Mo. 1988); 19......
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List of Case Citations
...1980), aff ’d , 672 F.2d 1297, 12 ELR 20368 (8th Cir. 1982) ................................................... 50 Morgan v. Walter, 728 F. Supp. 1483, 20 ELR 20731 (D. Idaho 1989) ...............................................106 Mugler v. Kansas, 123 U.S. 623 (1887) ...........................
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List of Case Citations
...Supp. 660, 12 ELR 20359 (W.D. Mo. 1980), aff ’d , 672 F.2d 1297, 12 ELR 20368 (8th Cir. 1982) ....................58 Morgan v. Walter, 728 F. Supp. 1483, 20 ELR 20731 (D. Idaho 1989) ................................136 Mugler v. Kansas, 123 U.S. 623 (1887) ........................................
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Review of Adverse Decisions
...55 F. Supp. 2d 658 (S.D. Tex. 1999); Johnson v. U.S. Army Corps of Engineers, 6 F. Supp. 2d 1 105 (D. Minn. 1998); Morgan v. Walter, 728 F. Supp. 1483, 20 ELR 20731 (D. Idaho 1989); Missouri Coalition for the Environment v. U.S. Army Corps of Engineers, 678 F. Supp. 790, 19 ELR 20581 (E.D. ......