Jump to Navigation
Jump to Content

Libby Rod & Gun Club v. Poteat

Citation: 8 ELR 20807
No. No. CV-78-40-M, 457 F. Supp. 1177/12 ERC 1338/(D. Mont., 09/28/1978)

The court grants plaintiffs' motion for a preliminary injunction against the construction of a reregulating dam designed to stablize downstream fluctuations caused by the operation of the Libby Dam. After affirmatively resolving questions of standing and jurisdiction, the court determines that plaintiffs are likely to prevail on their claim that the proposed dam is prohibited because it lacks congressional approval. The legislation originally authorizing the main dam did not authorize a subsidiary reregulating dam and subsequent congressional appropriations for the project do not amount to authorization by implication. Although defendants' duty to prepare a thorough cost-benefit analysis pursuant to the Principles and Standards of the Water Resources Council is not enforceable, the cost-benefit analysis prepared for the dam is reviewable under the National Environmental Policy Act and is found defective under the case law. Further, the environmental impact statement for the dam gave insufficient consideration to alternatives to the project, particularly those relating to alternative energy supplies, and must be remedied. Plaintiffs also asserted a violation of the Endangered Species Act, an issue which defendants urged is outside the jurisdiction of the court because plaintiffs failed to comply with the 60-day notice provision of that Act before filing suit. Finding jurisdiction under 28 U.S.C. § 1331, the court holds that defendants' action has not been shown to threaten an endangered species or its habitat. Plaintiffs have also failed to establish that the project's effects on nearby archaeological sites will constitute a violation of the National Historic Preservation Act, but this problem should be addressed more fully in the revised impact statement. Plaintiffs have demonstrated a likelihood of prevailing on the merits and a balancing of interests favors protection of the environmental interests they assert; hence, the court issues a preliminary injunction against construction of the proposed dam and declines to require posting of a security bond.

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

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

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