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Environmental Defense Fund v. Andrus

Citation: 9 ELR 20268
No. No. 76-3133, 596 F.2d 848/13 ERC 1374/(9th Cir., 04/18/1979) Aff'd in part, rev'd in part

The court affirms in part and reverses in part the decision of the district court, 7 ELR 20078, which granted summary judgment in favor of defendants on plaintiff's challenge to flood control projects in the Missouri River Basin. The district court is affirmed in its interpretation of the discretionary authority of the Secretary of the Interior under the Flood Control Act of 1944 to market water from federal reservoir projects for industrial uses and in its approval of the Secretary's decision to sell water from the Yellowtail and Boysen reservoirs. The court of appeals reverses the district court's application of the National Environmental Policy Act (NEPA) ruling, however, that an environmental impact statement (EIS) must be prepared both for the overall plan of marketing project water from the Yellowtail and Boysen reservoirs for industrial uses, in this case for development of the rich coal deposits in the region, and for individual water supply option contracts. The court relies on its recent decision in Port of Astoria v. Hodel, 9 ELR 20252, to conclude that the overall plan is a major federal action the environmental impacts of which must be assessed in a programmatic EIS. The court further decides that an EIS must be prepared for each individual option contract prior to its execution. Finally, the court decides that the Fish and Wildlife Coordination Act applies to the Yellowtail and Boysen reservoirs, although they were built prior to its passage.

Ed. Note: On June 1, 1979, the court denied plaintiffs' petition for rehearing on a Fish and Wildlife Coordination Act issue but deleted from its opinion a paragraph stating that there exists no private cause of action for violations of the Act.

Counsel for Plaintiffs
George W. Pring
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Counsel for Plaintiff in Intervention State of Montana
Cale J. Crowley
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 2529, Billings MT 59101
(406) 252-3441

Counsel for Defendants
Thomas Olson, Ass't U.S. Attorney
P.O. Box 1478, Billings MT 59103
(406) 723-6561

Peter R. Steenland, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Defendants in Intervention American Metal Climax, Inc. et al.
Edward W. Clyde
Clyde & Pratt
351 S. State St., Salt Lake City UT 84111
(801) 322-2516

Before ELY and KILKENNY, Circuit Judges, and FERGUSON,* District Judge.