Warm Springs Dam Task Force v. Gribble

• Citation: 565 F.2d 549
• Decision Date: 23 November 1977
• Docket Number: No. 77-2301,77-2301
• Parties: , 8 Envtl. L. Rep. 20,065 WARM SPRINGS DAM TASK FORCE, etc., et al., Plaintiffs-Appellants, v. Lieutenant General William C. GRIBBLE, Jr., etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 549

565 F.2d 549

11 ERC 1155, 8 Envtl. L. Rep. 20,065

WARM SPRINGS DAM TASK FORCE, etc., et al., Plaintiffs-Appellants, v. Lieutenant General William C. GRIBBLE, Jr., etc., et al.,

Defendants-Appellees.

No. 77-2301.

United States Court of Appeals, Ninth Circuit.

Nov. 23, 1977.

Leslie R. Perry, of Luke, Libicki & Perry, Santa Rosa, Cal., for plaintiffs-appellants.

Jacques B. Gelin, Dept. of Justice, Washington, D. C., for defendants-appellees.

Before HUFSTEDLER, TRASK, and KENNEDY, Circuit Judges.

PER CURIAM:

The Warm Springs Dam Task Force ("the Task Force") seeks an injunction pending appeal barring further work on the proposed Warm Springs Dam in Sonoma County, California, on the ground that the Environmental Impact Statement ("EIS") prepared for the dam project by the Army Corps of Engineers fails to comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (1971). After three days of hearings, the district court rejected the Task Force's motion for an injunction, finding that the challenged EIS fully complied with the NEPA, and it also rejected the Task Force's motion for an injunction pending appeal. (Fed.Rules Civ.Proc., Rule 62(c); Fed.Rules App.Proc., Rule 8. ¹)

The considerations in determining whether to grant or deny the requested relief are three-fold: (1) Have the movants established a strong likelihood of success on the merits? (2) Does the balance of irreparable harm favor the movants? (3) Does the public interest favor granting the injunction? (Alpine Lakes Protection Society v. Schlapfer (9th Cir. 1975)518 F.2d 1089, 1090.) As the Eighth Circuit has pointed out, the latter criteria merge into a single equitable judgment in which the environmental concerns of the movants must be weighed against the societal interests which will be adversely affected by granting the relief requested (Reserve Mining Co. v. United States (8th Cir. 1974) 498 F.2d 1073, 1076-77), a process which must be significantly affected by the realities of the situation. (See Friends of the Earth, Inc. v. Coleman (9th Cir. 1975) 518 F.2d 323, 330; Lathan v. Volpe (9th Cir. 1971) 455 F.2d 1111, 1116-17.)

We conclude that the public interest can best be served by expediting an appeal of the hearing on the merits and denying the requested interim injunctive relief. We do not believe that appellants have shown that they will suffer significant harm during the pendency of such an expedited hearing on the merits.

The scope of appellate review in this action is extremely narrow. While injunctions will issue under the NEPA if an EIS is inadequate (see Environmental Defense Fund v. Tennessee Valley Authority (6th Cir. 1972) 468 F.2d 1164, 1183-84; Lathan v. Volpe, supra, 455 F.2d at 1116-17; Sierra Club v. Coleman (D.D.C.1975) 405 F.Supp. 53, 54-55; see also Cady v. Morton (9th Cir. 1975) 527 F.2d 786, 798-99 n. 12; Friends of the Earth, Inc. v. Coleman, supra, 518 F.2d at 330 (no absolute right to an injunction); accord State of New York v. Nuclear Regulatory Commission (2d Cir. 1977) 550 F.2d 745, 753-57), the district court's finding that the EIS is adequate will be reversed only if based upon an erroneous legal standard or upon clearly erroneous findings of fact. ² (Brooks v. Coleman (9th Cir. 1975) 518 F.2d 17, 19; Daly v. Volpe (9th Cir. 1975) 514 F.2d 1106, 1108-09; Sierra Club v. Morton (5th Cir. 1975) 510 F.2d 813, 818. See also Aguirre v. Chula Vista Sanitary Service and Sani-Tainer, Inc. (9th Cir. 1976) 542 F.2d 779, 780-81; William Inglis & Sons Baking Co. v. ITT Continental Baking Co. (9th Cir. 1975) 526 F.2d 86, 88. ³) Judicial review of the adequacy of an EIS is also circumscribed. The substantive decision whether to proceed with a project is committed to the executive and legislative branches of government with which the judiciary will not interfere in the absence of a showing that the choice was "arbitrary and capricious," given the known environmental consequences. (Trout Unlimited v. Morton (9th Cir. 1974) 509 F.2d 1276, 1282-83; Lathan v. Brinegar (9th Cir. 1974) 506 F.2d 677, 692-93 (en banc ). See also Kleppe v. Sierra Club (1975) 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576; Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army (5th Cir. 1974) 492 F.2d 1123, 1138-40 & n. 33; Jicarilla Apache Tribe of Indians v. Morton (9th Cir. 1973) 471 F.2d 1275, 1281; Note, The Least Adverse Alternative Approach to Substantive Review under NEPA, 88 Harv.L.Rev. 735 (1975).)

Judicial enforcement of NEPA includes strict compliance with the disclosure and procedural provisions of the Act. Nevertheless, the test of EIS adequacy is pragmatic and the document will be examined to see if there has been a good faith attempt to identify and to discuss all foreseeable environmental consequences. (Sierra Club v. Froehlke (8th Cir. 1976) 534 F.2d 1289, 1299-1301; Brooks v. Coleman, supra, 518 F.2d at 19; Sierra Club v. Morton, supra, 510 F.2d at 818-19, 821; Lathan v. Brinegar, supra, 506 F.2d at 693.)

The Task Force's primary contention is that the dam has not been designed to resist a potential "maximum credible event," i. e., an earthquake registering 7.5 to 8.1 on the Richter scale. ⁴ The dam is designed to resist a quake measuring 7.0 on the same scale. Dam failure could entail huge losses of life and damages to property. The Task Force's concerns are shared by the State of California, through the Resources Agency, which commented that "the responses to questions on seismicity are not adequate" and requested tests for a 7.5 event. The President's Council on Environmental Quality ("CEQ"), charged with review of environmental impact statements for the executive branch, 42 U.S.C. § 4344 (1971), "strongly recommended" in a letter to the Corps that an investigation of the desirability of such tests be undertaken in view of the California comment on the EIS.

The dispute about the maximum credible event, in turn, is based upon differences of opinion among geological experts as to the size of and degree of activity of three fault systems in the vicinity of the dam. The district court found that:

"In the preparation and publication of the EIS Supplement differences of opinion both as to the lengths of the various faults in the area and the maximum credible earthquake that could occur in the area were printed and thoroughly discussed. The pros and cons of the various positions are covered in the report and an exhaustive list of authorities relied upon is included. When the EIS and EIS Supplement are read together, there is no doubt in the court's mind that they fully comply with the mandate of NEPA." (Warm Springs Dam Task Force v. Gribble (N.D.Cal.1977) 431 F.Supp. 320, 322-23.)

It further held that to the extent that the State of California and the Task Force relied upon studies conducted after the publication of the EIS, such data could not be used to render the EIS inadequate through the judicial review process, but should instead be addressed to the responsible executive branch agencies. ⁵

The Task Force raised a number of specific objections to the EIS. The Task Force argues that it will prevail on the merits because undisputed evidence introduced at the hearing in support of those contentions below showed that "the Corps has still failed to deal in a meaningful manner with the seismic issue." However, the district court's findings are to the contrary, and the Task Force has not specified the portions of the record (other than the Resources Agency and CEQ comments) upon which it relies to show us that the findings are clearly erroneous. The Task Force relies on the continued dissatisfaction of the California Resources Agency with the seismic testing and particularly on the CEQ letter to the Corps. It suggests that the CEQ letter should be given great weight by this court as an indication that the EIS does not satisfy the NEPA and justifies issuance of an injunction, just as a 1974 CEQ letter persuaded Mr. Justice Douglas to grant a stay at an earlier stage in this litigation. (See note 1, supra ; 417 U.S. at 1304-10, 94 S.Ct. 2542.) The CEQ objections are markedly different from those involved in the 1974 stay. In 1974, the CEQ had expressed its belief that the EIS was inadequate within the meaning of the NEPA, both in letters to the Corps and in a letter filed with the Supreme Court which had been directed to the Solicitor General. In the latter, the CEQ expressly stated that the EIS was inadequate in numerous respects and that an injunction was necessary to prevent irreparable harm to the public interest. (Id. at 1305, 94 S.Ct. 2542.) In contrast, the December, 1976, letter from the CEQ was directly addressed to the Corps and advised only that in the CEQ's opinion an independent assessment should be made by the United States Geological Survey of whether testing for a 7.5 event is necessary. It viewed this as important because the objections of the California Resources Agency were based upon USGS information and the issue remained "a matter of contention" between the Corps and the State of California. It states that such an assessment would "ensure that all questions of dam safety have been resolved prior to any final decision with respect to this project." The letter contains a strong suggestion that specified action be taken prior to constructing the dam, but the suggestion is not the same as its earlier statement that the EIS was inadequate within the meaning of the NEPA. An EIS is not supposed to resolve all contentions but to identify them to enable the appropriate decision-makers to make an informed choice. (Life of the Land v. Brinegar (9th Cir. 1973) 485 F.2d 460, 472-73.) The CEQ's role is to advise the executive branch on the merits of proceeding with a project; it is not entrusted with decision making. (See Sierra Club v. Callaway (5th Cir. 1974) 499 F.2d 982, 990-91, 993; Hiram Clarke Civic Club, Inc. v. Lynn (5th...