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National Audubon Soc'y v. Watt

ELR Citation: 12 ELR 20690
Nos. Nos. 81-1641, -1763, 678 F.2d 299/17 ERC 1407/(D.C. Cir., 05/07/1982) Rev'd

The District of Columbia Circuit rules that the federal government is no longer bound by a stipulation entered into with the National Audubon Society that required the government to defer construction of the Garrison Diversion Unit in North Dakota. Under the court-approved stipulation, 7 ELR 20414, 8 ELR 20232, Audubon agreed to a stay in its suit seeking to stop construction of the water development project and the federal government agreed to cease major construction until (1) completion of environmental studies, (2) submission of proposed legislation to Congress, and (3) the passage of 60 days after enactment of legislation either authorizing, modifying, or deauthorizing the project. Subsequently, the Secretary of the Interior, believing that a 1978 Senate resolution disapproving President Carter's proposed deferral of project funds nullified the stipulation, authorized resumption of project activity. Reversing the district court's order, 11 ELR 20551, enjoining further work on the Garrison project, the court rules that the stipulation did not bind the government unconditionally to postpone construction until 60 days after Congress enacted new legislation. The court construes the stipulation to include an implied condition under which the parties are no longer bound by it if Congress fails to act after a reasonable opportunity to reconsider the initial authorizing legislation in light of new environmental data. This reflects the intent of the parties as well as the Secretary's limited authority to evade his statutory duties through agreements struck with litigants. In addition, the initial legislation authorizing construction of the Garrison Diversion Unit indicates a congressional intent that the project be built. While the Secretary was required to defer construction pending preparation of environmental impact statements pursuant to the National Environmental Policy Act (NEPA), and properly deferred further action on the project until Congress had examined those impact statements, he was not authorized to promise unconditionally to delay construction until 60 days after Congress took affirmative action with regard to the Garrison project. After a reasonable period, the Secretary's duty to complete the project overrides his discretionary power under NEPA to delay project implementation. The court concludes that a reasonable period had elapsed prior to the district court's injunction enforcing the stipulation since the Secretary had completed, and submitted to Congress, the required environmental studies and since Congress continued to pass appropriation bills for the Garrison project and took no action to modify or deauthorize it.

A concurrence citicizes appellee for delaying the Garrison Diversion project by attempting to enforce a substantive environmental mandate allegedly based upon NEPA, whereas the statute is essentially procedural.

Counsel for Appellants
Frederick L. Miller Jr., J. Cathy Lichtenberg
Duncan, Weinberg & Miller
Suite 1200, 1775 Pennsylvania Ave. NW, Washington DC 20006
(202) 467-6370

James C. Kilbourne, Robert L. Klarquist, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7354

Counsel for Appellee
Bruce J. Terris
Terris & Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Before WRIGHT, MACKINNON, and WILKEY, Circuit Judges.