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Sportsmen's Wildlife Defense Fund v. Department of the Interior

ELR Citation: 27 ELR 20739
Nos. 96-B-1637, 949 F. Supp. 1510/(D. Colo., 12/26/1996)

The court dismisses a claim that state officials violated the Land and Water Conservation Fund (LWCF) Act by approving the expansion of a prison in a Colorado State Wildlife Area and State Park, and refuses to grant a preliminary injunction against the expansion based on alleged violations of the Pittman-Robertson Wildlife Restoration (P-R) Act. The court first holds that it has jurisdiction over defendant governor of Colorado. As a matter of Colorado and federal law, the governor has, by virtue of his office, some connection with the conduct in dispute under the LWCF Act. Moreover, evidence exists that the governor actually participated in the LWCF Act violations alleged here. The court next holds that plaintiff local residents and association have standing to challenge the expansion. They have alleged that they will suffer an injury-in-fact that is concrete, particularized, actual, and imminent; that their injuries are fairly traceable to the challenged actions of defendants; and that it is likely their injury will be redressed by a favorable court. The court next refuses to dismiss plaintiffs' claim that the state defendants are violating the P-R Act by placing and planning to expand a state prison on land that was purchased in part with federal funds disbursed under the P-R Act, when such lands are to be used solely for wildlife purposes. The plaintiffs fall within the P-R Act's broad statement of purpose; thus the Act is intended to benefit these plaintiffs. Also, the P-R Act creates a federal right enforceable under 42 U.S.C. §1983, because the obligations that it imposes on the state are cast in mandatory rather than precatory terms and there is no evidence that Congress intended to foreclose relief under §1983, for a violation of the P-R Act. The court dismisses, however, plaintiffs' claim that the state defendants are violating the LWCF Act by placing and planning to expand the prison on land purchased in part with federal funds disbursed under the LWCF Act, which provides that such land is to be used solely for outdoor recreation purposes. Although the LWCF Act was intended to benefit these plaintiffs, certain terms in the Act render its provisions precatory. Under such indefinite language, the LWCF Act does not create enforceable rights, privileges, or immunities within the meaning of §1983.

Turning to plaintiffs' motion for a preliminary injunction, the court holds that plaintiffs have shown clearly that the prison expansion on the additional 90 acres will cause irreparable injury to the environment if the preliminary injunction does not issue. If ordinary property is unique so that any injury is presumed to be per se irreparable, then state wildlife lands are unique. Also, although there is no presumption that environmental harm is irreparable, the court finds that certain meadows will be affected negatively by a decrease in irrigation; that a new sewage lagoon will have to be constructed; and that deer and elk herds will be affected negatively by the construction activity and loss of the meadows as winter range. The court holds, however, that balance of harms does not weigh in plaintiffs' favor; rather, the balance remains in equipoise. Similarly, the evidence of whether an injunction is not adverse to the public interest is in equipoise, at best. Finally, the court holds that plaintiffs are not likely to prevail on the merits of their claim. Plaintiffs' evidence that the prison land was acquired with P-R monies is weak and unpersuasive. And plaintiffs are unable to show that P-R monies were used to develop and maintain land subject to the P-R Act that is being used for a purpose other than wildlife. They have failed to prove that the land at issue was ever transferred to the state Department of Wildlife and was therefore subject to the P-R Act.

[Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66488 and 66494.]

Counsel for Plaintiffs
Colin Deihl
Earthlaw
University of Denver School of Law
Foote Hall
7150 Montview Blvd., Denver CO 80220
(303) 871-6996

Counsel for Defendants
John A. Lizza, Ass't Attorney General
Attorney General's Office
1525 Sherman St., Denver CO 80203
(303) 866-3052