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SIERRA CLUB v. ANDRUS

March 21, 1980

SIERRA CLUB, Plaintiff,
v.
CECIL D. ANDRUS, et al., Defendants.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

I. INTRODUCTION

 This case is before the Court on defendants' motion for summary judgment or to dismiss, and plaintiff's motion for summary judgment. Since there is no genuine dispute as to the facts material to the disposition of this case, summary judgment is appropriate. For the reasons more fully set forth below, the Court grants summary judgment to defendants on the first, third and fifth claims of plaintiff's complaint. In addition, the Court grants defendants' motion to dismiss as to the second and fourth claims of plaintiff's complaint because of failure to state claims upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

 Plaintiff Sierra Club is a non-profit corporation organized under the laws of the State of California with its principal place of business in San Francisco, California. Sierra Club is a national conservation organization having approximately 180,000 members.

 Defendant Cecil Andrus is Secretary of the Department of the Interior ("the Secretary"). He is responsible for management of the National Park Service as well as the Bureau of Land Management. The remaining defendants are officials of the Department of the Interior, the National Park Service and the Bureau of Land Management. In addition on February 22, 1979, the Court granted the Mountain States Legal Foundation leave to intervene as a party defendant in this action. *fn1"

 Plaintiff alleges that defendants have failed to carry out statutory obligations with which they are charged pursuant to the National Park Service Organic Act of 1916, as amended, 16 U.S.C. § 1 et seq. (1976); the Grand Canyon National Park Act of 1919, as amended, 16 U.S.C. § 221 et seq. (1976); the Glen Canyon National Recreational Area Act of 1972, as amended, 16 U.S.C. § 460dd et seq. (1976); and the Federal Lands Policy and Management Act of 1976, as amended, 43 U.S.C.A. § 1701 et seq. (West Supp.1979). In addition, plaintiff claims that defendants have failed to carry out trust obligations with which they are charged pursuant to the statutes enumerated above. Finally, plaintiff asserts that defendants' failure to carry out their statutory and trust obligations is arbitrary and capricious and unlawfully withholds agency action.

 The alleged statutory and trust violations are claimed to have occurred as a result of the defendants' refusal and failure 1) to determine and define federal reserved water rights in certain water courses for the purposes enumerated in the statutes listed above, 2) to assert such rights where and when necessary to assure their protection, and 3) to protect and defend such rights from potentially adverse activities and rulings.

 Plaintiff requests declaratory and injunctive relief in this action. Specifically, plaintiff seeks 1) a judgment ordering defendants to define, assert and protect federal reserved water rights in certain water courses in southern Utah and northern Arizona, and 2) a declaration by the Court that federal reserved water rights do, in fact, exist in these water courses. However, due to the nature of the Court's resolution of the other issues arising from plaintiff's claims, the Court finds it unnecessary to determine the exact scope of the federal reserved water rights allegedly existing in the water courses referred to above. The Court will set forth background information relevant to the disposition of this case and then proceed to consider plaintiff's claims.

 II. BACKGROUND

 Plaintiff claims that federal reserved water rights exist in four water courses in southern Utah and northern Arizona. These water courses are 1) The Escalante River, 2) the Paria River, 3) Kanab Creek, and 4) Johnson Wash ("the subject water courses"). It is alleged that federal reserved water rights arose in these water courses by virtue of the federal reservations of Grand Canyon National Park, Glen Canyon National Recreation Area, and Bureau of Land Management lands.

 Plaintiff further contends that the alleged federal reserved water rights are subject to a serious and "immediate" threat of harm engendered by energy-related developments in the relevant geographic area. Specifically, plaintiff claims the following "energy projects" "may" have an impact on federal reserved water rights in the subject water courses:

 
1. Allen-Warner Valley Power Project, including the Alton Mine and proposed coal slurry;
 
2. Escalante Power Project;
 
3. Garfield Power Plant of Garkane Power Association;
 
4. Intermountain Power Project;
 
5. Kaiparowits Plateau Mines, Nos. 1-5;
 
6. Kaiparowits Plateau Red and Blue Mines, including proposed coal slurry mines;
 
7. Successor projects to Kaiparowits Power Project;
 
8. Utah Power and Light Garfield Generating ...

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