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Smith v. Soil Conservation Serv.

ELR Citation: 13 ELR 20886
Nos. No. 82-1270, (10th Cir., 05/13/1983)

The Tenth Circuit declines to order a preliminary injunction against operation of a dam for which no environmental impact statement under the National Environmental Policy Act (NEPA) had been filed, holding that appellants had failed to prove the dam probably would significantly affect the quality of the human environment. The court first holds that the case is not moot because the reservoir behind the dam, although constructed, has not been filled and because appellants' challenge applies to other dams under construction in the same project. The court notes that to earn a preliminary injunction, appellants must show a likelihood of proving that appellees unreasonably concluded that the dam would not significantly affect the environment. The court considers the standards set out in the Council on Environmental Quality's NEPA regulations and environmental assessments of the project prepared by appellees. The court finds that the dam would cause the loss of 17 acres of wildlife habitat, 50 acres of prime farmland, and 352 acres of producing farmland, and would open 659 acres to infrequent flooding. The dam would displace no people and would have many favorable effects. The court holds that appellants have failed to establish a likelihood that appellees' determination of no significant effect was unreasonable.

Counsel for Appellants
Glen Smith
c/o Alma Mae Smith
511 Timber Lane, Edmond OK 73034
(405) 341-4304

Counsel for Appellees
Edward J. Shawaker, Claire L. McGuire; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-5993

William B. Price, U.S. Attorney; James F. Robinson
Rm. 4434, U.S. Cthse. & Fed. Bldg., Oklahoma City OK 73102
(918) 687-2543

Joined by Seth and Barrett, JJ.