Jump to Navigation
Jump to Content

National Audubon Soc'y v. Andrus

Citation: 8 ELR 20232
No. No. 76-0943, 442 F. Supp. 42/11 ERC 1057/(D.D.C., 12/09/1977) Motion to dismiss denied

The court denies intervenor-defendants' motion to dismiss a suit challenging the adequacy of the environmental impact statement (EIS) prepared for the Garrison Diversion Unit because neither a stipulation staying the proceedings nor legislation appropriating funds for the project renders the case moot. Plaintiff sought to enjoin the Secretary of the Interior from going ahead with the project because the EIS failed to comply with the National Environmental Policy Act. The parties entered into a stipulation staying the proceedings until a comprehensive supplemental EIS was filed. In August 1977, legislation was enacted which appropriated funds for construction of the project. The court concludes that the stipulation does not render the case moot because it did not resolve or settle any of the issues raised by plaintiff. Intervenors next argued that the appropriations act amounted to a congressional determination of the adequacy of the present EIS and that Congress, with knowledge of the litigation, authorized the project to proceed. The court rejects this argument because Congress cannot legislate through the appropriations process. Furthermore, approval of appropriations is not a conclusive determination of the sufficiency of an EIS. Finally, intervenors' argument ignores the fact that while Congress may make the ultimate decision to proceed with the project, it is the court's role to determine the adequacy of the EIS, absent a clear and convicing showing that Congress intended to restrict the court's scope of review. There is no indication in the legislative history that Congress reviewed or debated the project's EIS.

For earlier litigation concerning the Garrison Diversion Unit and summaries of the moving papers, see 7 ELR 20414 and ELR PEND. LIT 65351, 65375.

Counsel for Plaintiff
Bruce J. Terris
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Charles K. Dayton
Dayton, Herman & Graham
800 Midland Bank Bldg., Minneapolis MN 55401
(612) 339-7633

Counsel for Defendants
Andrew F. Walch
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-4112

Counsel for Intervenor-Defendants State of North Dakota and Garrison Diversion Conservancy District
Frederick L. Miller, Jr., Special Ass't Attorney General
Suite 777, 1700 Pennsylvania Ave. NW, Washington DC 20006
(202) 467-6370

Allen I. Olson, Attorney General
State Capitol, Bismarck ND 58505
(701) 224-2210