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NATIONAL AUDUBON SOCY. v. ANDRUS

December 8, 1977

NATIONAL AUDUBON SOCIETY, Plaintiff,
v.
CECIL D. ANDRUS, et al., Defendants, THE STATE OF NORTH DAKOTA and THE GARRISON DIVERSION CONSERVANCY DISTRICT, Intervenor-Defendants.



The opinion of the court was delivered by: RICHEY

A MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 The case is before the Court on the motion of the intervenor- defendants, the State of North Dakota and the Garrison Diversion Conservancy District, to dismiss or for judgment on the pleadings. They allege that this case has been rendered moot by the May 11, 1977, stipulation and the enactment of the Public Works for Water and Power Development and Research Act, 1978, Pub. L. No. 9796, 91 Stat. 797, which appropriated funds for the Garrison Diversion Unit (GDU). For the reasons hereinafter stated, the Court finds that neither the stipulation nor the appropriations act renders this case moot.

 I. BACKGROUND

 Plaintiff brought this suit challenging the actions of then-Secretary of the Interior Kleppe in constructing the GDU of the Pick-Sloan Missouri River Basin Project in North Dakota. Plaintiff alleges, inter alia, a violation of the National Environmental Policy Act (NEPA). In its complaint, plaintiff described those portions, characteristics, and environmental impacts of the project to which it objected and set forth with specificity the purportedly extensive failings of the final environmental impact statement (EIS). Plaintiff seeks to enjoin the defendants from constructing the project, condemning land for the project or contracting for construction of the project. Both the State of North Dakota and the Garrison Diversion Conservancy District intervened as of right, pursuant to Fed. R. Civ. P. 24(a).

 The litigation proceeded and cross-motions for summary judgment were filed. Before the Court ruled on these motions, a Stipulation was entered into, on May 11, 1977, which stayed the proceedings pending the filing of a comprehensive supplementary environmental statement. The intervenors did not sign the Stipulation but admitted at a hearing that they had no objection to a stay. The Court approved the Stipulation and expressly retained jurisdiction over the case. On August 8, 1977, the President signed P.L. 95-96, which appropriated $ 18,660,000.00 for construction of the GDU.

 II. THE MAY 11 STIPULATION DOES NOT RENDER

 THIS LITIGATION MOOT.

 The intervenors argue that the case is moot because there is presently no "case or controversy" before the Court. They claim that the May 11 Stipulation removes the adverseness and justiciability required under Article III of the United States Constitution.

 The Court finds that the Stipulation has not mooted the issues in this case, but has only stayed the proceedings. This is clear from the language of the Stipulation, from the intervenors' own admission, and from the hearing held on May 11, 1977.

 The Stipulation states:

 
In light of the difficulties associated with the litigation noted above and the uncertainties raised by the President's recommendation that the Garrison Diversion Unit be substantially modified, as well as the issues pending in regard to the Boundary Waters Treaty of 1909 between Canada and the United States, the parties deem a stay of this judicial proceeding to be warranted.
 
The parties recognize that the issues raised by the plaintiff may become altered as a result of the actions of the federal defendants under this agreement and subsequent congressional action.
 
Accordingly, to conserve judicial resources and afford the Secretary of Interior and the Commissioner of the Bureau of Reclamation an opportunity to undertake the commitments made herein, the parties agree to a stay of all proceedings in this action.

 Stipulation, at 1-2 (emphasis added). Thus, the Stipulation did not resolve or settle any of the issues raised by the plaintiff; it only stayed the litigation until a new EIS is prepared. In fact, the Stipulation itself recognized that nothing in the Stipulation should be construed as "conceding any of the legal issues or defenses . . . raised by the pleadings" and that the agreement was to be enforced "as part of the pending litigation." Stipulation, at 5 (emphasis added). The intervenors themselves have admitted, in a previous brief, that the Stipulation "is, quite simply, a stay of the proceedings. No judicial relief was sought or ...


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