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Bunch v. Hodel

ELR Citation: 16 ELR 20913
Nos. No. 85-5702, 793 F.2d 129/(6th Cir., 06/17/1986)

The court holds that the drawdown by a Tennessee agency of the water level of a lake on state land leased to the United States Fish and Wildlife Service (FWS) and maintained as a national wildlife refuge is a major federal action requiring preparation of an environmental impact statement (EIS). The court holds that under the terms of the lease, executed in 1941 pursuant to the Migratory Bird Conservation Act (MBCA), FWS has the exclusive authority to operate the dams and spillways in the leased areas on the lake. This authority is consistent with the legislative scheme of the MBCA, which directs the FWS to operate such areas as "inviolate sanctuaries' for migratory birds, and with the conduct of the parties since 1941. The court rejects the state agency's claim that the public trust doctrine precludes this interpretation of the lease. The court holds that the lease falls within the public interest exception to the public trust doctrine because the creation of the refuge is in the public interest and does not substantially impair the use of the area by Tennessee citizens. The court observes that although the Tennessee Supreme Court has never applied this exception, it does appear to recognize the principle. The court next holds that the state did not retain authority to manipulate the lake's water level through an easement by implication. Tennessee law disfavors implied easements and the state's interest in the remaining property is not substantially impaired by the lease's grant of exclusive authority to the FWS. Further, although both the state and the FWS now maintain that the state has authority to conduct the drawdown, the clear language of the lease and the prior conduct of the parties is dispositive. The court holds that the drawdown is a substantial change in an ongoing federal project and thus an EIS must be prepared. Although the FWS has operated the refuge since before NEPA was enacted, the drawdown cannot be viewed in isolation from the project as a whole. FWS may not transform the project into state action by suddenly abdicating its responsibilities under the lease and the MBCA. Finally, the court holds that this case does not involve a failure to act by the federal government for which an EIS is not required. FWS' abdication of its duties under the lease and the MBCA constitutes federal action.

Counsel for Defendants-Appellants
Mary E. Walker
Office of the Attorney General
450 James Robertson Pkwy., Nashville TN 37219
(615) 741-6474

Counsel for Plaintiffs-Appellees
Alfred T. Adams Jr.
Adams, Taylor, Philbin, Pigue & Marchetti
One Union St., P.O. Box 3428, Nashville TN 37219-0428
(615) 244-5361

Before: MARTIN and KRUPANSKY, Circuit Judges; and CHURCHILL,* District Judge.