Sierra Club v. Stamm, No. 74-1425

• Decision Date: 29 November 1974
• Docket Number: No. 74-1425
• Citation: 507 F.2d 788
• Parties: , 5 Envtl. L. Rep. 20,209 SIERRA CLUB, a non-profit California Corporation, et al., Plaintiffs-Appellants, v. Gilbert STAMM, Individually and as Commissioner, U.S. Bureau of Reclamation, et al., Defendants-Appellees, and State of Utah: Central Utah Water Conservancy District, et al., Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 788

507 F.2d 788

7 ERC 1245, 5 Envtl. L. Rep. 20,209

SIERRA CLUB, a non-profit California Corporation, et al Plaintiffs-Appellants, v. Gilbert STAMM, Individually and as Commissioner, U.S. Bureau of Reclamation, et al., Defendants-Appellees, and State of Utah: Central Utah Water Conservancy District, et al Defendants-Intervenors-Appellees.

No. 74-1425.

United States Court of Appeals, Tenth Circuit.

Nov. 29, 1974, Rehearing Denied Dec. 23, 1974.

Dennis F. Olsen, Salt Lake City (H. Anthony Ruckel, Denver, Colo., Curtis K. Oberhansly, and Kinghorn, Oberhansly & O'Connell, Salt Lake City, Utah, on the brief), for plaintiffs-appellants.

Dirk D. Snel, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., C. Nelson Day, U.S. Atty., Raymond N. Zagone and Andrew F. Walch, Attys., Dept. of Justice; and Ronald L. Staten, Atty., Dept. of the Interior, of counsel, on the brief), for denfendants-appellees.

Edward W. Clyde, Salt Lake City, Utah (Dallin W. Jensen, Asst. Atty. Gen., and Joseph Novak, Provo, Utah and Hugh W. Colton, Vernal, Utah, on the brief), for defendants in intervention-appellees.

Before HILL, McWILLIAMS and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

This proceeding was instituted in the United States District Court for the District of Utah by four nonprofit environmental corporations against the Secretary of the Interior, Rogers C. B. Morton, and certain officers of the Bureau of Reclamation. The State of Utah and its state water districts later intervened as intervening defendants. The plaintiffs sought declaratory judgment and injunctive relief based on the alleged failure of the defendants to file a Final Environmental Statement which complied with the provisions of the National Environmental Policy Act. 42 U.S.C. 4321 et seq.

After a six-day evidentiary hearing the trial court found and concluded that the Final Environmental Statement prepared and filed by the defendants did comport with the statute and accordingly entered judgment dismissing the complaint with prejudice. Plaintiffs now appeal. Our study of the record leads us to conclude that the trial court did not err in its determination that the Final Environmental Statement with which we are here concerned met the requirements of the statute, and we therefore affirm. Some background facts are necessary to an understanding of the matter.

The Central Utah Project is a plan to collect, develop and divert water in the Bonneville and Uinta Basins of central Utah for municipal, industrial, agricultural and recreational purposes. The project is an 'on-going' one in the sense that certain of its components were completed and in use, even before the advent of the National Environmental Policy Act; whereas, the entire project as presently contemplated will in all probability not be finally completed till sometime in the next century.

The Central Utah Project is composed of six units, one of which is the Bonneville Unit, and it is the Bonneville Unit with which we are here concerned. The Bonneville Unit involves the collection of water in the Uinta Basin by a series of dams, reservoirs, aqueducts, and the like, with the water thus collected being transferred across the Wasatch Mountains for use in the Bonneville Basin. This particular unit is about 16% Completed at the present time.

The Bonneville Unit, where construction activity is now focused, it itself broken down into six component systems, one of which is the Strawberry Aqueduct and Collection System. This latter system in turn embraces the so-called Currant Creek Dam and Reservoir. The Government has most recently been involved in the letting of contracts preparatory to building the Currant Creek Dam, and it is this fact which has precipitated the present controversy. The immediate relief sought by the plaintiffs was an injunction to prohibit any further action in connection with the Currant Creek Dam. As indicated, plaintiffs' claim is based on their belief that the Final Environmental Statement filed by the defendants is inadequate. Let us look then at the Final Environmental Statement here under attack.

The Statement was prepared by the Bureau of Reclamation and the Department of the Interior and filed with the Council on Environmental Quality on August 2, 1973. The Secretary of the Interior subsequently announced on November 8, 1973, that construction would proceed on the Currant Creek Dam as 'the next step in the construction of the Strawberry Aqueduct.' Although there was perhaps some misunderstanding, at least initially, as to the intended scope of the Statement, it would appear that now it is agreed that the Statement is intended to be a final one only as to the Strawberry Aqueduct and Collection System, even though the Statement makes reference to other components of the Bonneville Unit, as well as to other units within the Central Utah Project. The Statement clearly indicates that final impact statements will be filed on the other systems of the Bonneville Unit and the Central Utah Project before work commences on those phases. The Statement is a bulky one, consisting of over 800 pages of single-spaced printing. The Statement itself is subdivided into the following headings: Description of the proposal; description of the environment; environmental impacts of proposed action; mitigating measures and air and water quality aspects; unavoidable adverse effects; short and long term environmental uses; irreversible and irretrievable commitments of resources; alternatives to proposed action; and consultation and coordination with others. The Statement then contains rather detailed 'responses' by the Department of the Interior to 'objections' earlier made to the draft impact statement.

The plaintiffs' attack on the Statement is fourfold: (1) The Statement is too narrow in its scope and should include the cumulative and collective environmental impact of the entire Central Utah Project; (2) the Statement is incomplete in that it is a final statement as to the Strawberry Collection System only, and that it should, but does not, encompass all increments of the Bonneville Unit; (3) the Statement fails to adequately discuss alternatives for obtaining water within the Bonneville Basin for municipal and industrial purposes; and (4) the Statement fails to include and discuss a cost-benefit ratio. Before discussing each of the matters thus raised, let us first ascertain what the statute declares should be included in a Final Environmental Statement.

Section 4332, 42 U.S.C. provides as follows:

'* * * All agencies of the Federal Government shall * * * include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on '(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.'

The plaintiffs first attack the Statement on the ground that it is too narrow in scope, and should be a final statement at least for the entire Bonneville Unit, if not indeed for the entire Central Utah Project. As indicated above, the Statement here involved is intended to be a final statement as to the Strawberry Aqueduct and Collection System only, and, according to the plaintiffs, the Strawberry system is not in itself an independent 'major Federal action,' as mentioned in 42 U.S.C. 4332, but only an increment of the Bonneville Unit and the Central Utah Project.

We deem the question as to whether the Strawberry system is in itself an independent 'major Federal action,' and whether the Statement should have been a 'final' impact statement for the Bonneville Unit, or perhaps even the entire Central Utah Project, to be, in a sense, a mixed question of fact and law. By that we mean that the issue as to whether the Strawberry system is a unit unto itself, and can stand on its own two feet, or, on the contrary, whether it is so intertwined with the rest of the Bonneville Unit and the Central Utah Project that it is but an increment of the larger plan, is essentially one of fact. Then whether the 'facts' as thus found by the trial court permit the Strawberry system to be classified as an independent 'major Federal action' is essentially a question of law. ¹ Let us now examine the trial court's findings on the issue as to whether the Strawberry system is an independent unit, or not.

Finding No. 16 reads as follows:

'The Strawberry Aqueduct and Collection System had an independent utility of its own as a collection and conveyance system of waters from the designated Uinta Mountain streams for storage in the enlarged Strawberry Reservoir for release and use in the Bonneville Basin. Such system can operate and function separately from the remaining unconstructed systems of the Bonneville Unit or other units of the Central Utah Project. The termini of the Strawberry Aqueduct and Collection System, comprising the Soldier Creek Dam on the westerly end, and the Upper Stillwater Reservoir on the easterly end, delineate a reasonable and logical segment of the Bonneville Unit for discussion and analysis of the environmental impacts resulting therefrom, which remain unchanged regardless of the systems to be constructed for delivery and use of project waters within the Bonneville Basin. The major federal action of Defendant Secretary Morton was limited to the approval of immediate construction of the Currant Creek Dam and to the continuation of the construction of the Strawberry Aqueduct and Collection System on a logical construction schedule....