Sierra Club v. Andrus
Citation: 9 ELR 20772
No. Nos. 76-1464 et al., 610 F.2d 581/(9th Cir., 10/31/1979) Aff'd in part, rev'd in part
The Ninth Circuit Court of Appeals affirms in part and reverses in part a decision by a district court, 6 ELR 20047, on appellees' suit for an order requiring the Bureau of Reclamation to obtain from the Secretary of the Army, pursuant to § 10 of the Rivers and Harbors Act, a permit for certain components of the California Water Project. The district court ordered the Bureau of Reclamation to obtain a § 10 permit for the Tracy and Delta pumping plants, directed the Secretary of the Army to prepare an environmental impact statement (EIS) prior to issuing such permits, and enjoined the construction of the proposed Peripheral Canal pending issuance of the permits and preparation of the EIS. The court first rules that § 10 of the Act confers upon appellees a right of action authorizing them to enforce its requirements. The availability of a private right of action furthers the purpose of the Act to benefit the public generally and is not inconsistent with the legislative intent or scheme. In addition, appellees have standing to sue because they have alleged injury in fact to an interest within the zone of interests sought to be protected by § 10 of the Act and that injury would be redressed by the requested relief. On the merits, the court declines to follow the district court in ruling that the pumping plants, which were shown at trial to lower the levels of certain navigable waters by as much as 1.5 feet, modify the navigable capacity of those waters and thus require congressional authorization under the first clause of § 10 of the Act. Instead, the court rules that the plants alter the condition of a navigable stream and therefore require approval by the Corps of Engineers under the third clause of § 10. Appellants' reference to a purported congressional policy of federal deferral to the states in matters of water appropriations is inapposite as it relates only to reclamation statutes enacted subsequent to the Rivers and Harbors Act. The court accepts, however, appellants' arguments thatt Congress has specifically authorized the construction of the Tracy pumping plant and thereby exempted it from the requirement for a Corps of Engineers permit. Federal authorization for water projects may be found even in appropriations measures, provided that it is shown that Congress had knowledge of the precise action or project at issue and was explicitly addressing that project. Unlike the Delta plant, the Tracy plant was specifically mentioned and approved in several appropriations measures. The court notes that the Delta plant may qualify for an administrative exemption from the Corps' permit requirements if it can be shown to have been completed before December 18, 1968. The case is remanded for resolution of this issue. The court vacates the lower court's order to the Secretary of the Army to prepare an EIS prior to issuing a § 10 permit for either plant because such an order is premature until the relevant official has made the initial determination as to whether an EIS is required.
Counsel for Appellants
Peter R. Taft
Land and Natural Resources Division
Department of Justice, Washington DC 20530
G. William Hunter, U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
Evelle J. Younger, Attorney General; Carl Bronkay, Walter E. Wunderlich, Bertram Buzzini
555 Capital Mall, Suite 550, Sacramento CA 95814
Counsel for Appellees
John B. Clark, Robert Thum
Petit, Evers & Martin
600 Montgomery St., San Francisco CA 94111
Gary J. Near
473 Jackson St., San Francisco CA 94111
Michael R. Sherwood
Sierra Club Legal Defense Fund, Inc.
311 California St., Suite 311, San Francisco CA 94104
Before ELY, TRASK, and TANG, Circuit Judges.