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Environmental Defense Fund v. Morton

ELR Citation: 7 ELR 20078
Nos. No. 1220, 420 F. Supp. 1037/9 ERC 1881/(D. Mont., 07/22/1976)

The court grants summary judgment against plaintiffs in a suit to restrain the Department of the Interior from disposing of stored water from the Yellowtail and Boysen Reservoirs, constructed under authority of the 1944 Flood Control Act, for industrial purposes. The court rejects plaintiffs' argument that use of the water is statutorily restricted to agricultural and hydroelectric power purposes and finds that industrial usage was specifically contemplated and authorized by Congress. Furthermore, the Secretary of the Interior acted properly in approving the water option contracts to supply project water for industrial uses and in determining that the contracts will not impair the efficiency of federally funded water projects for irrigation purposes. The court also finds that there is no real or immediate threat to plaintiffs' water rights because plaintiffs have no appropriation right to the stored water, since it is surplus and unappropriated. In addition, priority of use is in the United States as the impounding authority. Finally, the court rejects plaintiffs' claims based on the National Environmental Policy Act (NEPA), and the Fish and Wildlife Coordination Act. The water marketing program and the individual water option contracts are not proposals for a "major federal action" and preparation of an environmental impact statement under NEPA for the ultimate industrial water use would be an unrealistic and useless effort. The Fish and Wildlife Coordination Act applies only to new projects and not to individual water contracts. The court also finds that allocation of the waters to the several signatory states and the purposes for which the waters are to be used do not violate the Yellowstone Compact.

Counsel for Plaintiffs
George W. Pring
Laurence Edelman
Environmental Defense Fund, Inc.
1657 Pennsylvania St.
Denver CO 80203
(303) 831-7559

James H. Goetz
Goetz & Madden
W. Main St.
P.O. Box 1322
Bozeman MT 59715
(406) 587-0618

John D. Leshy
Natural Resources Defense Council, Inc.
2345 Yale St.
Palo Alto CA 94306
(415) 327-1080

Counsel for Defendants
Keith L. Burrowes, Asst. U.S. Attorney
P.O. Box 1478
Billings MT 59101
(406) 252-7555

Counsel for Plaintiff in Intervention
Department of Natural Resources and Conservation, State of Montana
Theodore J. Doney
Allen B. Chronister
Department of Natural Resources and Conservation
32 S. Ewing St.
Helena MT 59601
(406) 449-3712

Counsel for Defendants in Intervention
American Metal Climax, Inc.
Edward W. Clyde
Clyde, Mecham & Pratt
351 South St.
Salt Lake City UT 84111
(801) 322-2516

Cale Crowley
Crowley, Haughey, Hanson, Gallagher & Toole
500 Electric Bldg.
P.O. Box 2529
Billings MT 59101
(406) 252-3441

Counsel for Defendant in Intervention
Kerr McGee Corp.
Peter J. Nickles
Robert E. Lighthizer
Covington & Burling
888 16th St., NW
Washington DC 20006
(202) 452-6000

Bruce L. Ennis
Moulton, Bellingham, Longo & Mather
Securities Bldg.
Billings MT 59101
(406) 252-5688