National Audubon Soc., Inc. v. Watt, s. 81-1641
| Decision Date | 07 May 1982 |
| Docket Number | Nos. 81-1641,81-1763,s. 81-1641 |
| Parties | , 219 U.S.App.D.C. 435, 12 Envtl. L. Rep. 20,690 NATIONAL AUDUBON SOCIETY, INC., a Nonprofit Corporation v. James G. WATT, Secretary of the Department of the Interior of the UnitedStates, Both Individually and in His Official Capacity, et al. Appeal of The STATE OF NORTH DAKOTA and Garrison Diversion ConservancyDistrict. NATIONAL AUDUBON SOCIETY, INC., a Nonprofit Corporation v. James G. WATT, Secretary of the Department of the Interior of the UnitedStates, Both Individually and in His Official Capacity, et al. Appeal of The STATE OF NORTH DAKOTA and Garrison Diversion ConservancyDistrict. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C.Civil Action No. 76-00943).
Frederick L. Miller, Jr., Washington, D. C., with whom J. Cathy Lichtenberg, Washington, D. C., was on the brief, for appellants State of North Dakota, et al.
James C. Kilbourne, Atty., Dept. of Justice, Washington, D. C., with whom Robert K. Klarquist, Atty., Dept. of Justice, Washington, D. C., was on brief, for appellants Secretary Watt, et al. Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., entered an appearance for Secretary Watt, et al.
Bruce J. Terris, Washington, D. C., for appellee Nat. Audubon Soc., Inc.
Before WRIGHT, MacKINNON and WILKEY, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
This appeal arises out of protracted litigation concerning the federal government's plans to construct a 250,000-acre water development project, the Garrison Diversion Unit, in North Dakota. In 1977, in connection with a suit by the National Audubon Society (Audubon) seeking injunctive relief for alleged violations of federal statutes including the National Environmental Policy Act (NEPA), the Secretary of the Interior and Audubon agreed to the Stipulation and Order at issue in this case. The stipulation provided that the parties would suspend litigation on the merits, and that the government would not proceed with major construction on the Garrison project until the Secretary had completed two environmental studies and submitted proposed legislation to Congress, and until Congress had adopted legislation either reauthorizing, modifying, or deauthorizing the project. Five years later, under a new Administration, the government contends that the stipulation is no longer binding. The State of North Dakota and the Garrison Diversion Conservancy District assert that the stipulation was void ab initio. In contrast, Audubon maintains that the stipulation is fully binding and enforceable. The District Court granted an injunction enforcing the 1977 agreement.
Our decision in this case is based upon the context of the agreement and upon the Secretary's limited authority, under NEPA, to defer construction of the Garrison project. We hold that, even if the Stipulation and Order initially was valid and binding upon both parties, the parties' obligations were subsequently discharged under an implied condition when Congress did not adopt legislation regarding the Garrison project despite a reasonable opportunity to do so. We therefore reverse the judgment of the District Court. Our construction of the Stipulation and Order avoids potentially serious constitutional questions about the power of the Executive Branch to restrict its exercise of discretion by contract with a private party.
The Flood Control Act of 1944 adopted a long-range plan for flood control and water development in the Missouri River basin, including a project that would have irrigated more than a million acres in three states. Act of December 22, 1944, Pub.L.No.58-534, § 9, 58 Stat. 887, 891. In 1965 Congress authorized construction of a smaller version of the project, the Garrison Diversion Unit in North Dakota. Act of August 5, 1965, Pub.L.No.89-108, 79 Stat. 433. Section 1 of the statute provided that
the construction of a development providing for the irrigation of two hundred and fifty thousand acres, municipal and industrial water, fish and wildlife conservation and development, recreation, flood control, and other project purposes shall be prosecuted by the Department of the Interior substantially in accordance with the plans set out in the Bureau of Reclamation report dated November 1962 (revised February 1965) supplemental report to said House Document Numbered 325.
In subsequent years Congress steadily appropriated funds for construction. 1 After the passage of the National Environmental Policy Act, Pub.L.No.91-190, 83 Stat. 852 (1970), the Secretary of the Interior conducted a series of environmental impact studies. According to Audubon, these studies showed that the project would have devastating effects on the national wildlife refuge system, cause widespread destruction of prairie wetlands and other irreplaceable migratory wildlife habitat, destroyed thousands of acres of native prairie, and discharge polluting return flows into five rivers in two watersheds. Brief for appellee at 4. The Canadian government actively opposed the Garrison project, contending that project water flowing across the border would violate the Boundary Waters Treaty of 1909, 36 Stat. 2448, and would introduce fish diseases and fish parasites into Canadian waters with resulting damage to Canadian fisheries. Brief for appellee at 4.
Audubon filed suit in May 1976 seeking to stop construction of the Garrison project, alleging that it would violate NEPA and other federal laws. 2 Among other contentions, Audubon alleged that the final environmental impact statement (EIS) prepared by the government was inadequate. Cross-motions for summary judgment were filed by Audubon and the Secretary of the Interior. These motions were pending when the Carter Administration took office and initiated a review of federal water projects to determine whether they were environmentally or economically unsound. To protect state interests the State of North Dakota and the Garrison Diversion Conservancy District (the state appellants) intervened in the case in March 1977. The following month the President recommended that the Garrison project be substantially reduced in size and that it be further evaluated after completion of an inquiry by a joint United States-Canada commission, the International Joint Commission.
The government and Audubon entered into negotiations which culminated in the Stipulation and Order at issue in this case. 3 This document is attached to our opinion as Appendix A. Signed on May 11, 1977, and approved by the District Court on May 18 The agreement was not expressly limited in duration, except that "(i)f any portion of the agreement becomes unenforceable, is violated, or is nullified, the other party to this agreement may abrogate the entire agreement or any portion of it." Paragraph H. The parties further agreed that "(t)his agreement shall be enforced by the United States District Court for the District of Columbia as part of the pending litigation." Id. The pleadings remained filed with the District Court.
1977, the stipulation does not settle the underlying litigation and was not incorporated into a judgment. Referring to the President's recommendation that the Garrison project be substantially modified and to the diplomatic objections raised by the Canadian government, the agreement declares that "the parties deem a stay of this judicial proceeding to be warranted." It then provides for a stay of all proceedings "in accordance with the following terms and conditions(.)" Both parties would withdraw all pending motions and suspend litigation on the merits. The government would cease construction, land acquisition, and contracting, 4 except for specified activities, see Paragraph B of Stipulation and Order, and would not recommence work until all of the following events had occurred: (1) the government completed a comprehensive supplemental environmental impact statement describing "all reasonable alternatives for the project"; (2) the government prepared a mitigation plan for fish and wildlife; (3) the Secretary submitted the environmental study and the mitigation plan to Congress, accompanied by proposed legislation which either authorized an alternative project, reauthorized the original plan, or deauthorized the entire project; (4) Congress thereafter reauthorized the project or authorized an alternative plan; and (5) 60 days elapsed after congressional action. Paragraphs C and D.
The Secretary of the Interior completed a comprehensive supplemental EIS and a fish and wildlife mitigation plan; both were submitted to Congress. He also prepared proposed legislation authorizing a substantially modified Garrison project of approximately 96,000 acres, and on two occasions submitted his draft to the Office of Management and Budget for clearance. OMB denied approval to the proposed legislation on both occasions and returned the draft to the Secretary. 5 The Carter Administration thus did not submit any legislation to Congress regarding the Garrison project authorization. Congress has not independently enacted legislation to reauthorize, deauthorize, or modify the project. 6 On the other hand, appropriations for further construction on the Garrison project have regularly been approved by Congress since May 1977. 7
From the outset the Stipulation and Order of May 11, 1977 has been embroiled in litigation. In a suit filed in the United States District Court for the District of North Dakota the State of North Dakota contended that the deferral of construction envisioned in the stipulation constituted an impoundment of appropriated funds, and that it was illegal because the...
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