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Churchill County v. Babbitt

ELR Citation: 28 ELR 21463
Nos. Nos. 97-15508, -15813, 150 F.3d 1072/47 ERC 1590/(9th Cir., 07/15/1998, 10/29/1998)

The court holds that a city and county have standing to challenge the U.S. Department of the Interior (DOI) for implementing a water rights acquisition plan in Nevada before preparing a programmatic environmental impact statement (PEIS). The court first holds that the National Environmental Policy Act (NEPA) grants the city and the county the procedural right to protect its land interests, and, thus, the city and county meet the first element of procedural standing. NEPA §102(C) grants local agencies that are authorized to develop and enforce environmental standards the right to comment on an EIS. The city and the county qualify as such local agencies through Nevada statutes that authorize them to prepare and adopt land management plans with environmental standards. The court next holds that the city and county have shown with reasonable probability that implementation of the plan before producing a PEIS threatens their concrete interest in land and water management. It is reasonably probable that the transfer of a significant amount of water rights from the area adjacent to and surrounding city and county lands will affect these lands adversely in the absence of a PEIS examining their combined effects. In addition, the city and county have shown that the unexplored effect of several projects under the plan will threaten the environmental of city and county lands. The court then holds that the city and county have established their standing to sue under the Administrative Procedure Act. The U.S. Fish and Wildlife Service has effectuated a final agency action by producing its record of decision (ROD) announcing that it would begin purchasing 55,000 acre feet of water for transfer to wetlands. The ROD and the final EIS from DOI clearly identified a significant amount of land within the county and near the city as land to be purchased by the government at some time. And the threatened harm to the environmental health of the city's and county's lands and water supply fall within NEPA's interest in preventing harm to the environment.

The court also holds that a power company is limited to intervention in the remedial phase of the trial because the power company does not have a significantly protectable interest in federal government compliance or noncompliance with NEPA.

Counsel for Plaintiffs
Antonio Rossmann
Law Offices of Antonio Rossmann
380 Hayes St., Ste. 1, San Francisco CA 94102
(415) 861-1401

Counsel for Defendants
Fred R. Disheroon, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Kleinfeld and Dwyer,* JJ.