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Libby Rod & Gun Club v. Poteat

Citation: 9 ELR 20274
No. Nos. 78-3297, -3307, 594 F.2d 742/16 ERC 1613/(9th Cir., 03/15/1979) Aff'd in part, rev'd in part

The court upholds the lower court's issuance, 8 ELR 20807, of an injunction against construction of a reregulating dam on the Kootenai River below the Libby Dam, but lifts the injunction insofar as it restrains the addition of generating units to the latter dam. The court agrees with appellees that the Flood Control Act of 1950, which authorized the Libby Dam, refers to the need for a reregulating dam in only general terms and thus does not constitute authorization for the project. Subsequent congressional appropriations for the project do not provide a substitute for explicit legislative authorization. Since the reregulating dam may therefore not be constructed, there is no need to review the lower court's ruling that the environmental impact statement prepared for the project is inadequate. The court reverses, however, the lower court's determination that because the reregulating dam must not proceed, the Corps must also be prevented from constructing additional turbines below the main dam. Since the parties agree that construction of the turbines was authorized by Congress, the decision as to whether they should be constructed without the reregulating dam is one for Congress or the Corps of Engineers, not the courts.

Counsel for Appellants
Robert T. O'Leary, U.S. Attorney
162 Federal Bldg., Butte MT 59701
(406) 723-6561

Counsel for Appellees
J. H. Goetz
Goetz & Madden
P.O. Box 1322, Bozeman MT 59715
(406) 587-0618

Steven Perlmutter
Room 225, Power Block, Helena MT 59601
(406) 443-5653

Counsel for Intervenor Western Environmental Trade Ass'n
Lawrence F. Daly
P.O. Box 7909, Missoula MT 59801
(406) 728-1200

Before WRIGHT, KENNEDY and TANG, Circuit Judges.