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NATIONAL WILDLIFE FEDN. v. ANDRUS

June 21, 1977

NATIONAL WILDLIFE FEDERATION et al., Plaintiffs,
v.
CECIL D. ANDRUS, Secretary, Department of Interior, et al., Defendants



The opinion of the court was delivered by: FLANNERY

 This action for declaratory and injunctive relief challenges the legality of a proposed 23 megawatt power plant now under construction at the already existing Navajo Dam on the San Juan River in New Mexico. The original complaint, filed December 10, 1976, by the National Wildlife Federation and the New Mexico Wildlife Federation, *fn1" alleged that defendants had violated the National Environmental Policy Act of 1969 [NEPA], 42 U.S.C. § 4331 et seq., and the Fish and Wildlife Coordination Act [FWCA], 16 U.S.C. § 661 et seq. Plaintiffs sought to enjoin further construction of the power plant at the present site. On February 9, 1977, plaintiffs filed an amended complaint which contained the additional allegation, based on 43 U.S.C. § 615ii, that defendants exceeded their statutory authority in constructing a 23 megawatt power plant at the Navajo Dam. The parties stipulated as to the basic facts and cross-moved for summary judgment.

 I. Facts

 The San Juan River is the second largest tributary of the upper Colorado River. The river and its banks are home to a wide variety of fish, aquatic mammals and migratory waterfowl. Between 1958 and 1963, a dam was constructed which spans a winding canyon of the river approximately 39 miles east of Farmington, New Mexico. The facility, known as the Navajo Dam and Reservoir, was authorized by Congress in the Colorado River Storage Project Act of April 11, 1956. 43 U.S.C. § 620. As originally authorized, the facility was specifically limited by Congress to "dam and reservoir only." Id. No power plant was authorized, and in fact one of the specific objectives of the Project was to "mitigate losses of, and improve conditions for, the propagation of fish and wildlife." Id. § 620g.

 Prior to completion of the Navajo Dam in 1963, the San Juan River provided a natural warm water fishery. The dam created instead a cold water fishery by virtue of cold, clean, stable releases of water from the reservoir. In these cold waters the New Mexico Department of Game and Fish established and maintained a quality trout fishery which is now recognized as one of the finest resources of its kind in the southwestern United States. In addition to fish, the river supports aquatic mammals such as beaver and muskrat and provides a nesting area for certain waterfowl. The parties agree, and therefore there is no factual dispute, that the flow of the San Juan River below Navajo Dam is not presently subject to systematic rapid daily fluctuations and that both the fish and the other wildlife might be adversely affected should there occur rapid daily fluctuations in water volume and rate of flow. *fn2"

 The power plant which is the subject of this litigation is part of the Navajo Indian Irrigation Project [NIIP]. *fn3" This project was authorized June 13, 1962, 43 U.S.C. § 615ii, as an element of the Colorado River Storage Project. NIIP was designed principally to irrigate 110,630 acres owned by the Navajos in northwestern New Mexico. The 1962 NIIP legislation did not envision the power plant which is at issue here. Instead the authorized power plant was to have been located on the main irrigation canal near Chaco Wash, a tributary of the San Juan River. The originally proposed power plant was to have had a maximum capacity of 15 megawatts and was to be used solely to provide electrical energy for NIIP's irrigation pumps.

 Subsequent to this original authorization of NIIP in 1962, the project was reevaluated by the Bureaus of Reclamation and of Indian Affairs. The purpose of this reevaluation, which culminated in a Reevaluation Report dated July 1966, *fn4" was to maximize the benefit of the Navajos from the irrigation project. Because the reevaluation found that certain of the lands designated for NIIP were not suitable for sustained irrigation, an equivalent area of land elsewhere was substituted. Legislation was required in order to obtain the necessary additional land. Accordingly Congress amended the original 1962 authorization by an Act of September 25, 1970. 42 U.S.C. §§ 615ii-615yy. The substitution of lands in NIIP which was occasioned by this reevaluation and subsequent legislation rendered the proposed power plant at Chaco Wash infeasible. A necessity thus arose to find an alternative power source for the irrigation project. The 1966 report did not specifically recommend a 23 megawatt power plant at Navajo Dam, but the possibility of such a facility as an alternate power source was discussed in the report. In 1973 and 1974, defendants prepared an administrative report entitled "The All-Sprinkler Irrigation System Report," which proposed construction of a 23 megawatt power plant at Navajo Dam.

 Between 1974 and 1976, defendants purchased $3.6 million worth of generating equipment for the proposed 23 megawatt power plant at Navajo Dam. Pursuant to the provisions of NEPA, defendants on June 4, 1976, released for public review and comment a draft environmental statement [DES]. In this document, defendants proposed construction for the 23 megawatt facility and operation of the power plant year-round to serve the sprinkler irrigation system of NIIP and other non-NIIP power demands. In response to the DES, several of the plaintiffs submitted critical comments regarding the unexplored impact of the power plant on the downstream fishery. On October 12, 1976, defendants issued a final environmental statement [FES] in which the plan for a 23 megawatt power plant at Navajo Dam remained essentially the same as in the DES.

 Shortly thereafter certain of the plaintiffs submitted further comments to the effect that the FES remained inadequate. Certain plaintiffs also met the representatives of defendants to discuss the potential adverse effects upon downstream fish and wildlife resources. As a result of the meeting, defendants agreed to initiate studies to determine the downstream effects of various flow patterns from the proposed power plant. Defendants, however, refused to suspend construction of the power plant pending completion of these studies. Plaintiffs also suggested several alternatives to the power plant, including building a smaller plant, not building the plant at all, and delaying its construction until studies were completed. On November 29, 1976, defendants made a final decision to construct the proposed 23 megawatt facility at Navajo Dam and awarded a construction contract. Defendants considered but rejected the alternatives suggested by plaintiffs. At least in part, this decision was based on the previous expenditure of $3.6 million for equipment to be used in the power plant. *fn5" At present approximately 10% of the work -- mostly in site preparation -- has been completed.

 II. Statutory Authority

 Before reaching the issue of defendants' compliance with NEPA and FWCA, the court must consider whether defendants have acted consistently with their statutory authority in planning and constructing the power plant. Plaintiffs contend that Congress has never deviated from its original intent, as expressed in 43 U.S.C. § 620, that the Navajo Dam should feature "dam and reservoir only." It is clear from that statute that, at least at the time of its passage in 1956, Congress intended to preclude the use of Navajo Dam for power purposes, especially in light of the fact that propellants were specifically approved for three other dams mentioned in the statute. *fn6"

 Plaintiffs further argue that the 1962 legislation which authorized NIIP is consistent with that original intention of Congress. Although Navajo Dam was almost completed at that time, Congress looked elsewhere for the power source necessary for the irrigation project. Congress authorized a 15 megawatt power plant on the main irrigation canal, a fact which plaintiffs emphasize as suggestive of continuing congressional opposition to a Navajo Dam power plant. In addition to limiting the authorized NIIP power plant to 15 megawatts, Congress specifically provided that "[the] plant would operate only during the irrigation season and for the sole purpose of providing power to the pumping plant." House Doc. 424, 86th Cong., 2d Sess. 277 (1960). *fn7"

 The crucial legislation with respect to defendants' statutory authority is the Act of September 25, 1970, which amended the authorizing legislation of NIIP. Though the Act makes certain specific authorizations regarding NIIP and its relation to the Colorado River Storage Project, there is no mention of a proposed power plant at Navajo Dam. Defendants point out, however, that the report of the Senate Committee on Interior and Insular Affairs, the committee which reviewed the Senate version of the 1970 amendment, specifically states that the project "includes a power plant at Navajo Dam." S.Rep. No. 363, 91st Cong., 1st Sess. 2 (1969). In addition, the 1966 Reevaluation Report, which mentions a power plant at Navajo Dam without specifically recommending it or describing it in detail, was made part of the files of the House subcommittee which considered the legislation in the House. *fn8" Hearings on H.R. 13001 Before the Subcomm. on Irrigation and Reclamation of the House Comm. on Interior and Insular Affairs, 91st Cong., 2d Sess. 41 (1970). Defendants apparently believe that Congress incorporated into the 1970 legislation the suggestion of a Navajo Dam power plant found in the 1966 Reevaluation Report, but in fact the report contained nothing specific or detailed enough to be considered a distinct recommendation. It was not until the 1973-74 All Sprinkler Irrigation System Report that the power plant was actually proposed, and that report has never been submitted to Congress.

 Defendants contend that their actions in proposing and constructing the power plant at Navajo Dam are not fundamentally inconsistent with the original authorization in 1956. In support of this contention, they refer to the fact that the dam was designed and constructed to allow later installation of a power plant. This fact suggests nothing, however, about whether Congress ever authorized such design and construction, and that is the issue before this court. Clearly the appropriate officials have some discretion to modify aspects of the various programs within the Colorado River Storage Project. *fn9" But such modifications must occur within the statutory authority granted by Congress. Where Congress has been specific in its authorization or its lack thereof, the discretion of the officials is accordingly diminished. Here Congress expressly refused to authorize the very work which defendants have undertaken. Defendants' discretion does not extend to providing an authorization where Congress saw fit to withhold it.

 Defendants argue that their position is supported by the appropriation of funds for the power plant in successive Congresses between 1974 and 1977. They must acknowledge, however, the "general principle that Congress cannot and does not legislate through the appropriations process." Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 382 F. Supp. 610, 620 (D.D.C. 1974). Furthermore, "ratification by appropriation is not favored and will not be accepted where prior knowledge of the specific disputed action cannot be demonstrated clearly." D.C. Federation of Civic Ass'ns v. Airis, 129 U.S. App. D.C. 125, 391 F.2d 478, 482 (1968).

 Here defendants attempt to except themselves from the usual rule against legislation by appropriation by showing that Congress did in fact have specific knowledge of the power plant at Navajo Dam. The only indications in the record that Congress specifically knew of the power plant are instances in which it is included in proposals for work pursuant to NIIP. There appear to be no references to the power plant in discussions at hearings, and there is no specific mention of the power plant in the appropriations bills themselves. In addition, references to the power plant, buried as they are amid many other proposals related to NIIP, hardly seem sufficient to alert Congress to the possibility that it is being asked to appropriate funds for an unauthorized project. The mere fact that the power plant was mentioned in certain proposals does not by itself indicate congressional awareness, especially since "Congress, in appropriating funds, has a right to assume they will be expended according to the law." Id.

 Defendants rely on cases holding that it is up to Congress to determine whether an agency is proceeding in accordance with congressional authorization and, if it is not, what to do about it. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749, 754-55 (E.D. Ark. 1971), aff'd on other grounds, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931, 37 L. Ed. 2d 160, 93 S. Ct. 2749 (1973). That does not appear to be the law in this circuit. See D.C. Federation of Civic Ass'ns v. Airis, supra. The cases cited by defendants, moreover, have involved situations where there was at least arguably a prior authorization. Here, not only is there no prior authorization of the power plant, but there is substantial evidence in the authorizing statute to the effect that Congress expressly disapproved such a power plant at Navajo Dam. Where, as here, "the only relevant pre-existing statutory language was directly contrary to the disputed administrative action," the court of appeals for the District of Columbia Circuit has held that ratification by appropriation is particularly unlikely. Id. at 481 n.20.

 III. Compliance with NEPA


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