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CITY OF KLAMATH FALLS v. BABBITT

May 10, 1996

CITY OF KLAMATH FALLS, OREGON, Plaintiff,
v.
BRUCE BABBITT, Secretary, United States Department of the Interior, Defendant, and SAVE OUR KLAMATH RIVER, et al., and THE STATE OF OREGON, Defendants-Intervenors.



The opinion of the court was delivered by: JOHNSON

MEMORANDUM OPINION

 Plaintiff, the city of Klamath Falls, Oregon, challenges a decision by the Secretary of the Interior to designate an eleven-mile long section of the Klamath River as a National Scenic River under the National Wild and Scenic Rivers Act. The parties have agreed that no material factual disputes exist in this case. Presently before the Court are the cross motions of the parties for summary judgment. Motions for summary judgment have been filed by plaintiff, by defendant Bruce Babbitt, Secretary of the Interior, and by defendants-intervenors, a number of conservation groups who intervened in this action in January 1995. The State of Oregon, which is also an intervenor, has filed a memorandum in support of Babbitt's motion for summary judgment. The Court has carefully considered the motions of all parties, the voluminous administrative record, and the oral argument of the parties at a hearing on this matter. For the reasons set forth below, the Court concludes that it must deny plaintiff's motion and grant the motions of defendants.

 Background

 The city of Klamath Falls is the sponsor of the Salt Caves Hydroelectric Project, a controversial project which it proposes to construct on the Klamath River. It has been working on this project since the early 1980s and sees the project as a way to improve the suffering economy of the city. In order to construct the project, the city must obtain a license from the Federal Energy Regulatory Commission ("FERC"). The city applied for a FERC license in November 1986.

 Pursuant to a ballot initiative in 1988, the voters of Oregon designated the Klamath River, from the John Boyle Dam Powerhouse to the Oregon/California border, as a state scenic waterway. That part of the river includes the location on which the city plans to build the hydroelectric project. State designation does not prevent FERC from licensing a hydroelectric project on the river. Designation of a river into the federal Wild and Scenic Rivers System, however, does prohibit FERC from licensing a hydroelectric project on the river. See 16 U.S.C. ยง 1278(a)(1994).

 In April 1993, Oregon Governor Barbara Roberts requested that the Secretary of the Interior designate the section of the Klamath River into the federal Wild and Scenic Rivers System. She wrote:

 Dear Secretary Babbitt:

 
The State of Oregon has had a state Scenic Waterway Act since 1970. Enacted through a citizen's initiative, this Act embodies Oregon's strong commitment to protecting our natural treasures. Our program directs state agencies to protect the free-flowing character of the waterway in perpetuity, and imposes land use controls on all state and private lands within 1/3 mile of either bank of the river.
 
Congress has not acted on the results of this study. Meanwhile, the Upper Klamath is immediately threatened by the proposed Salt Caves Hydroelectric Project No. 10199, under the jurisdiction of the Federal Energy Regulatory Commission.
 
Therefore, I am formally requesting that the Upper Klamath River, from the John Boyle Dam Powerhouse to the Oregon/California border, be designated as a federal Wild and Scenic River pursuant to section 2(a)ii of the federal Wild and Scenic River Act of 1968 (Public Law 90-542 as amended).

 A.R. 2799-2800. The Department of the Interior forwarded the request to the National Park Service ("NPS") for consideration and evaluation. After evaluating the merits of the governor's application and the environmental effects of designating the river into the Wild and Scenic Rivers System, NPS issued a draft Klamath River Eligibility Report and Environmental Assessment ("Draft Report/EA"). The Draft Report/EA was released for public review and comment. The Department of the Interior concluded that the National Environmental Policy Act ("NEPA") did not require the preparation of an Environmental Impact Statement ("EIS"). In August 1994, NPS issued a final Report/EA. The Report/EA concluded that the Klamath River satisfied the eligibility requirements for designation into the Wild and Scenic Rivers System as a "scenic," but not a "wild," river.

 The Secretary approved the Governor's recommendation on September 22, 1994, after issuing a Finding of No Significant Impact ("FONSI"), and designated the portion of the Klamath River into the National Wild and Scenic Rivers System as a National Scenic River. That same day, the city brought the present lawsuit. Because of the designation, the city is precluded from continuing to seek a FERC license for the proposed hydroelectric project. The city seeks to invalidate the Secretary's decision, alleging that the Secretary violated NEPA, the Administrative Procedure Act ("APA"), and the National Wild and Scenic Rivers Act ("WSRA"). Plaintiff seeks a declaration that the designation is unlawful and an order enjoining the designation. Plaintiff does not challenge whether the river has such remarkable characteristics that it can qualify as a National Scenic River, but challenges the procedures leading up to the designation. The Court will first address whether plaintiff has standing to bring this action, then address plaintiff's arguments under each of the three statutes.

 Discussion

 I. Standing

 The Secretary argues that the city lacks standing to bring this case. He claims that the city has not alleged an appropriate injury because, even if the designation were overturned, the city cannot show that it would get approval from FERC for its project. He also argues that the city's alleged injury is not within the zone of interests protected by NEPA because the city is trying to use the environmental protection laws to get approval for its hydroelectric project, not to protect the free-flowing state of the river. The Supreme Court has defined the elements of standing:

 
First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly ... traceable to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court." ...

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