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11 ELR 20551 | Environmental Law Reporter | copyright © 1981 | All rights reserved National Audubon Society, Inc. v. WattNo. 76-0943 (D.D.C. May 6, 1981)The court enjoins the Department of the Interior (DOI) and the State of North Dakota from proceeding with construction of the Garrison River diversion project for lack of congressional authorization. In 1977, plaintiff filed suit challenging the adequacy of the project's environmental impact statement (EIS). Subsequently, the parties entered into a stipulation staying the initial proceedings, 7 ELR 20414 and 8 ELR 20232, until Congress reauthorized the project and DOI prepared a supplemental EIS. Opposing plaintiff's action to enforce the 1977 stipulation, defendants contended that subsequent litigation nullified the prior agreement. The court first rules that an expired Senate resolution, which disapproved of deferral of budget authority for the project, has no effect on the present action. Moreover, the court rejects DOI's argument that the Supplemental Appropriations Act of 1980, which appropriated $9.7 million for continuing construction of the Garrison project, deprived the Secretary of the Interior of discretion to carry out the terms of the stipulation. Since the Act merely appropriated money rather than compelled the expenditure of funds on the project, the stipulation is not, therefore, nullified. Further, the court rejects defendants' contention that plaintiff abandoned all of its rights under the stipulation by consenting to proceed with the merits of the case. The court determines that there is no merit to defendants' allegation that the stipulation is unenforceable because the Interior Secretary lacked discretion to enter into this agreement which suspended project construction and postponed expenditure of appropriate funds. Finally, since this is a valid, enforceable contract that was voluntarily entered into and that has not been legally nullified, defendants are enjoined from engaging in activities in violation of the stipulation. In addition, the court rules that this case shall not proceed on the merits until Congress passes a reauthorization measure. Counsel for Plaintiff Charles Dayton, Jim Payne Counsel for Defendants Lou Mouro Murray G. Sagsveen Gary Helgeson Richey, J.: This matter is before the Court on plaintiff National Audubon Society's motion for an injunction enforcing the Stipulation and Order of May 11, 1977, which was entered into by the plaintiff and federal defendants. Under the terms of the Stipulation, the federal defendants agreed to prepare a supplementary environmental statement to develop a new fish and wildlife mitigation plan and to submit to Congress, with the new impact statement, proposed legislation authorizing "an option for project development described in the environmental statement, or reauthorization or deauthorization of the project." Stip. P C. The defendants agreed not to continue construction (with some minor exceptions) until the actions pursuant to Paragraph C are completed and Congress has reauthorized the project or authorized an option for project development and an additional 60 days has elapsed. Stip. P D. The plaintiff, in return, agreed that proceedings in this Court would be suspended until an occurrence of those events. On September 26, 1978, the plaintiffs moved for a preliminary injunction restraining the federal defendants from engaging in any activities in violation of the Stipulation and Order of May 11, 1977. This Court, in a decision dated December 11, 1978, held that the Stipulation and Order was no longer binding upon any party because the parties' minds had failed to meet with regard to the meaning of the term "nullify" in Paragraph H of the Stipulation.1 The Court of Appeals for the District of Columbia Circuit disagreed and held that the term "nullify" should be given its natural reading, "to make legally null and void." Therefore, the Court found that there was a valid binding contract between the parties and remanded the matter for a determination of whether the requested preliminary injunction should issue or whether the Stipulation had in fact been "nullified" by any ubsequent events. See National Audubon Society v. Andrus (D.C. Cir. No. 79-2024, decided Jan. 19, 1981). Plaintiff, therefore, has renewed its motion of September 26, 1978, for an injunction enforcing the Stipulation and Order of May 11, 1977. The federal defendants and the defendant-intervenors have both opposed this motion and claim that the Stipulation and Order should not be enforced. The federal defendants allege that the Supplemental Appropriations Act of 1980, Pub. L. 96-304, 94 Stat. 872, which appropriated $9,700,000 as a line item appropriation for "continuing construction of theauthorized Garrison Diversion Unit, North Dakota, to remain available until expended" has "nullified" the Stipulation and Order within the meaning of Paragraph H of the Stipulation. The defendant-intervenors contend that the Stipulation and Order are unenforceable for several reasons. First, they allege that the Stipulation was terminated in toto by the voluntary agreement of the parties, with the approval of the Court, to proceed with the merits of the case. Secondly, they claim that the only remaining unsatisfied provisions of the Stipulation which prohibit the Secretary from proceeding with construction unless and until Congress has reauthorized the project or an option for project development are illegal, void and unenforceable.Thirdly, they claim that Senate Resolution 525 "nullified" the Stipulation within the meaning of Paragraph H. Fourthly, they allege that even if the Stipulation were in effect, an injunction to enforce it is impermissible and unjustified. The Court, upon careful consideration of the record, finds neither the federal defendants' nor the defendant-intervenors' arguments to be persuasive and accordingly must grant the plaintiff's motion for the reasons hereinafter stated. I. Congress Has Taken no Action Since the Execution of the May 1977 Stipulation and Order To Nullify the Agreement. The Court of Appeals, in its Memorandum of January 19, 1981, held that the word "nullify" means "make legally null and void." Memorandum, p.2. Any Senate action subsequent to the Stipulation could only render the Stipulation legally null and void if it compelled the federal defendants to expend funds on the Garrison Project and thus forced them to violate the provisions of the legally binding agreement into which they had entered. The actions which the Senate took subsequent to the Stipulation which arecurrently in dispute are Senate Resolution 525 and the Supplemental Appropriations Act of 1980, P.L. 96-304, 94 Stat. 872. As the defendants themselves have admitted, Senate Resolution 525, which disapproved the proposed deferral of budget authority for Garrison, was only of a year's duration and expired at the end of fiscal year 1978. See 31 U.S.C. 1403(a)(6). Thus, even if S. Res. 525 in fact authorized or directed the Government to build [11 ELR 20552] the Garrison project, that directive existed only until September 30, 1978. The Resolution has now expired and can have no effect on the Stipulation and Order which plaintiff now seeks to enforce. As the Court of Appeals similarly suggested, the issue is now moot. See Memorandum p.5, n.16. B. Supplemental Apropriations Act of 1980 The federal defendants' sole argument regarding the nullification of the Stipulation rests on the Supplemental Appropriations Act of 1980 which appropriated $9.7 million for the Garrison Project. The defendants claim that because of this Act, they are under a Congressional directive to expend funds on the Garrison Project and thus are legally compelled to violate the agreement entered into with the plaintiff. However, as the Court has already determined in considering the effect of an earlier appropriation on the Government's obligation under NEPA,2 "Congress cannot and does not legislate through the appropriations process." National Audubon Society v. Andrus, 442 F. Supp. 42, 45 [8 ELR 20232] (D.D.C. 1977). See TVA v. Hill, 437 U.S. 153 [8 ELR 20513] (1978); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 785 [1 ELR 20469] (D.C. Cir. 1971); Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 382 F. Supp. 610, 620 [5 ELR 20086] (D.D.C. 1974). The intervenors therein contended that the Congress, in appropriating funds for the project, expressed its determination that the Environmental Impact Statement complied with NEPA requirements and that therefore, through passage of the Appropriations Act, Congress had resolved any issues remaining under NEPA. But as this Court observed, "these appropriations do not relieve any Federal agencies from their obligations under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. (1970), under a theory of implied Congressional exemption or a final Congressional approval of an Environmental Impact Statement then in existence." 442 F. Supp. 42, 46 (D.D.C. 1977) citing State of Ohio ex rel. Brown v. Callaway, 364 F. Supp. 296 [3 ELR 20892] (S.D. Ohio 1973), aff'd in part and reversed in part, 497 F.2d 1235 [4 ELR 20492] (6th Cir. 1974). Similarly, nothing in the recent appropriations act which is at issue here is meant to relieve the Department of Interior of their obligations under NEPA, which includes not only the duty to consider alternatives to the project under review, but the duty to use "all practicable means" to achieve the Act's substantive goals. 42 U.S.C. § 4331(a). Here, it was within the Secretary's discretion to determine that construction should be deferred until the entire Congress has the benefit of the Secretary's proposed legislation which resulted from a two-year NEPA review. Accordingly, the stipulation entered into was well within the Secretary's discretion,3 and continued appropriations for the project does not compel a different conclusion. As the Supreme Court stated in TVA v. Hill: When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purposes forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules of Congress carefully adopted to avoid this need. 98 S. Ct. 2279 at 2300 (1978).The same rationale that precludes appropriations acts from overriding the obligations imposed on the Secretary by substantive legislation also prevents such acts from overriding the exercise of his discretion as to what those substantive responsibilities require.4 The defendants offer no evidence to suggest that the Congress, in passing the Supplemental Appropriations Act of 1980, intended to deprive the Secretary of his discretion under NEPA to discontinue construction during his review of the project or subsequent to review pending consideration of his proposals by the full Senate.5 The only factor that the defendants rely on is the fact that the Supplemental Appropriations Act of 1980 represents a line-item appropriation rather than a lump sum appropriation for the project as was P.L. 95-96 which the defendant agreed did not nullify the Stipulation. However, the defendants cite to no cases which draw any distinction between line-item and lump-sum appropriations; the cases just clearly state that Congress cannot legislate through the appropriation process. See, e.g., TVA v. Hill, 437 U.S. 153 [8 ELR 20513] (1978); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 [1 ELR 20469] (D.C. Cir. 1971); National Wildlife Federation v. Andrus, 440 F. Supp. 1245 [7 ELR 20526] (D.D.C. 1977); Atchison, Topeka and Santa Fe Railway v. Callaway, 382 F. Supp. 610 [5 ELR 20086] (D.D.C. 1974). The only authority to support this distinction cited to by the federal defendants is a decision by the Comptroller General which states that "when Congress does not intend to permit agency flexibility, but intends to impose a legally binding restriction on an agency's use of funds, it does so by means of explicit statutory language." 55 Comp. Gen. 307, 318 (1975). However, as defendants failed to point out, the opinion continues and states: such explicit provisions are not uncommon and are usually found in the DOD appropriations acts. For example, section 624 of the 1970 act . . . provided that "no part of any appropriation contained in this Act shall be available for the procurement of any article of food, clothing, cotton, woven silk . . . similar restrictions were placed on the Navy, Air Force and other DOD elements . . . Title VII contained several other restrictions or prohibitions on the use of funds appropriated by the Act." The Comptroller's decision refers to language specifically [11 ELR 20553] forbidding the use of funds for certain purposes. In that case, pursuant to the Comptroller's opinion, Congress has specifically intended a legally binding restriction. In this case, the only language in the 1980 Appropriations Act resembling that referred to by the Comptroller General is the provision prohibiting the use of federal funds for the acquisition of mitigation lands by condemnation or for the construction of features affecting waters flowing into Canada. This restriction is not being contested here. The disputed portion of the Act merely makes the money available for the project and allows the expenditures to be used. In fact, the language of the Act is sufficiently weaker than a command to spend the money; the funds are to "remain available to be expended" which suggests that the Secretary may well delay their expenditure. Accordingly, the contention of the Government that the 1980 Supplemental Appropriations Act deprived it of its discretion to carry out the terms of the Stipulation is without merit. Until a statute constituting more than a mere appropriation of money is passed which commands the building of the Garrison Diversion Unit despite the Secretary's obligations under NEPA, the Secretary has the discretion of executive officials to determine what is in the public interest. II. The Stipulation Was Not Terminated by Voluntary Agreement of the Parties When the Decision Was Made To Proceed With the Merits After the Decision of This Court Rendering the Stipulation Invalid. The State argues that Audubon, in consenting in 1979 to proceed with the merits of the case, abandoned all of its rights under the Stipulation. The Court finds no merit in this argument. While this matter was on appeal, the plaintiffs lacked the benefit of any of the stipulation's provisions, including Paragraph A providing that the Government would not expend funds or construct project features until the terms of the Stipulation were complied with. During the pendency of the appeal, the Government did in fact expend money on the project. Until the Court of Appeals decision on January 19, 1981, the plaintiff was not required to sacrifice its right under the terms of the agreement to proceed on the merits. III. The Provisions of the Stipulation Which Purport to Prohibit the Secretary from Proceeding with Construction of Garrison Unless and Until "Congress has . . . reauthorized the project or authorized an option for project development and an additional 60 days have passed" Are Not Illegal, Void or Unenforceable. The State contends that the Stipulation which the Court entered into usurps legislation and executive power in that it attempts to override a Congressional mandate and an executive duty to enforce that mandate. The State contends that under the Act of August 9, 1965, authorizing the Garrison Diversion Project, the Secretary does not have the discretion to delay project construction and postpone expenditure of appropriated funds. Therefore the Secretary lacked any discretion to enter into the Stipulation in the first instance. The Court disagrees. Since Congress authorized the Garrison Project in 1965, the Congress enacted NEPA and thus subjected further development of the project to the procedural and substantive provisions of that statute. The defendants have cited no cases in which the language of a public works authorization has been held to override the dictates of NEPA and the courts have not seen such acts as a bar to NEPA review. It is well settled that the procedural directives of NEPA must prevail over a mere authorization for project construction and that the Secretary must halt project development until he has complied with those directives.See Atchison, Topeka and Santa Fe Railway Company v. Callaway, 382 F. Supp. 610 [5 ELR 20086] (D.D.C. 1974). Plaintiffs argue that similarly the substantive directives of NEPA must also take precedence over an authorization, because Congress imposed on the Secretary not only the duty to consider alternatives to the project, but the duty to use "all practicable means" to achieve the Act's substantive goals. The Court agrees.6 The Secretary made a determination that the project should be suspended until further action by Congress and accordingly entered into the Stipulation. This was clearly within his power under NEPA to use "all practicable means" to achieve the Act's substantive goals.7 Without this discretion, the Act would be meaningless. As the Court of Appeals for the Eighth Circuit stated in Environmental Defense Fund v. Corps of Engineers: The language of NEPA, as well as its legislative history, make it clear that the Act is more than an environmental full disclosure law. NEPA was intended to effect substantive changes in decision-making. Section 101(b) of the Act states that agencies have an obligation "to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate federal plans, functions, programs and resources to preserve and enhance the environment." To this end, section 101 sets out specific environmental goals to serve as a set of policies to guide agency action affecting the environment . . . . Section 102(2), of course, sets forth the procedural requirements of the Act discussed previously in this opinion. The purpose is to "insure that the policies enunciated in Section 101 are implemented," S. REP. 91-296, 91st Cong., 1st Sess. 19 (1969). (Emphasis added.) The procedures included in § 102 of NEPA are not ends in themselves. They are intended to be "action-forcing," Id. at 9. The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact statements which fill governmental archives . . . . Given an agency obligation to carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits . . . . 470 F.2d 289, 298-300 [2 ELR 20740] (8th Cir. 1972), cert. denied, 412 U.S. 931 (1973). The State also argues that this Court's entry and enforcement of the Stipulation usurps executive and Congressional power, because a court may not direct an agency as to the manner in which to exercise its discretion, nor may a court compel an administrative agency to pursue a particular course of action. See, e.g., FPC v. Idaho Power Co., 344 U.S. 17 (1952); Public Service Commission of New York v. FPC, 543 F.2d 757 (D.C. Cir. 1974). However, the Court here is not called upon to exercise the Secretary's discretion or compel him to pursue a particular course of action. The Court is merely being asked to enforce a valid contract voluntarily entered into by two parties. The defendant Secretary's discretion was already exercised; the Court is merely called up to protect the plaintiff and the benefit of its bargain. The very terms of the contract provide for such enforcement. See Stipulation Paragraph H. IV. Audubon is Entitled to an Order Enforcing the Stipulation of May 11, 1977. The Government argues that this Court should not enforce the Stipulation because the Secretary has performed every action that he could reasonably have been expected to perform under the Stipulation. However, one of those actions is to defer further expenditures until Congress has acted to reauthorize the project or an alternative or "nullify" the Stipulation. Since the Court finds that none of these events have occurred, the Secretary must comply with the terms of the agreement which he has voluntarily enterred into. The State, on the other hand, argues that the Stipulation should not be enforced because it resolves no legal issues and finds no violation of the law. However, the Court fails to see the merit [11 ELR 20554] in this argument. Contracts of settlement, as other contracts, are enforceable so long as they are not contrary to law. See Autera v. Robinson, 419 F.2d 1197, 1199-1200 (D.C. Cir. 1969); see also Berger v. Grace Line, Inc., 343 F. Supp. 755 (D. Pa.); aff'd, 474 F.2d 1339 (3d Cir. 1973) (court has authority to enforce a settlement agreement entered into while litigation is pending, where agreement was entered into voluntarily and intelligently). The plaintiff, moreover, does not seek to compel the defendant to take action, but rather is only called upon to restrain the defendants from actions in violation of their agreement.As the Court stated in Griffin v. Oklahoma Natural Gas Company Corp., 37 F.2d 545 (10th Cir. 1930): An injunction against the breach of contract is a negative decree of specific performance. The power and duty of a court of equity to grant such an injunction is broader than its power and duty to grant a decree of specific performance, since an injunction to restrain acts in violation of a lawful contract will be granted even when specific performance would be denied because of the nature of the contract. In addition, the traditional prerequisites of injunctive relief need not be present, particularly when the agreement is affected with a public interest. As the Tenth Circuit stated in West Edmond Hunton Lime Unit v. Stanolind Oil & Gas Company, 193 F.2d 818 (1951), cert. denied, 343 U.S. 920 (1952): If the rights and duties of the parties are fixed by contract, it is not a question of convenience or inconvenience, or the comparative amount of damages or injury resulting from the enforcement of the right. It is the specific performance by the court of that bargain which the parties have made, with their eyes open . . . . This is especially true, we think, when the contract the parties have made, and which is sought to be enforced, is affected with a public interest. Accordingly, because the Court finds that the Stipulation and Order of May 11, 1977, is a valid, enforceable contract and has not been legally "nullified," the Court, pursuant to Paragraph H of the agreement, must enforce the terms of the agreement and therefore enjoins the defendants from taking any action prohibited by Paragraph A unless and until the terms of Paragraphs C and D have been met. Upon consideration of plaintiff's motion for an Order enforcing the Stipulation and Order of May 11, 1977, and the defendants' opposition thereto, and in accordance with the Memorandum-Opinion issued of even date herewith, it is, by the Court, this 6th day of May, 1981, hereby ORDERED that the plaintiff's motion be, and the same hereby is, granted, and it is FURTHER ORDERED that the defendants be, and the same hereby are, enjoined from engaging in any activities in violation of Paragraph A of the Stipulation and Order of May 11, 1977; and it is FURTHER ORDERED that this case shall not proceed on the merits pursuant to the terms of the agreement until Congress has reauthorized the project or authorized an option for project development and an additional sixty (60) days have passed, and the case meanwhile shall stand dispensed with the right to reopen by either party. 1. Paragraph H of the Stipulation provides that "If any portion of the agreement becomes unenforceable, is violated, or is nullified, the other party to this agreement may abrogate the entire agreement or any portion of it." 2. The defendants in fact conceded that under the terms of the agreement this prior appropriations act (P.L. 95-96) did not "nullify" the Stipulation. An Assistant Solicitor of the Department of Interior wrote to Audubon's counsel: "To the best of my knowledge, I did not state (and if I did, I was incorrect), that if Congress merely appropriates money for the project, the agreement is nullified. That is not the Department's understanding of the agreement." (Letter from G. Bohlke to B. Terris, June 20, 1977, Ex. B to Declaration of Andrew F. Walch, Dec. 11, 1978). 3. See III, infra. 4. The answers submitted by the Secretary to Audubon's second set of interrogatories suggest that appropriations acts do not limit in any way whatever discretion the Secretary may have possessed to suspend project activity and withhold appropriated funds. 5. Do you contend that P.L. 95-96 and the legislative reports accompanying that appropriations act eliminated or limited in any way whatever discretion the Secretary may have possessed under the Act of August 9, 1965 to suspend project activity or withhold appropriated funds? 7. Do you contend that Senate Resolution 525 eliminated or limited in any way whatever discretion the Secretary may have possessed under the Act of August 9, 1965 and P.L. 95-96 to suspend project activity or to withhold appropriated funds? Answer: It does not have the legal effect of eliminating the exercise of the Secretary's discretion, but is a factor he must take into account in the exercise of that discretion. Federal Defendant's Response to Plaintiff's Second Set of Interrogatories, Feb. 13, 1980. 5. See Libby Rod and Gun Club v. Poteat, wherein the 9th Circuit held that Congressional authorization required by statute for construction of a dam was not conferred solely by Congressional Appropriation on the construction of the dam. In so doing the Court noted: In TVA v. Hill, the Supreme Court was confronted with a record showing various congressional committees had specifically opined that continued construction of the Tellico Dam was proper notwithstanding the Endangered Species Act. 437 U.S. at 170-71, 98 S. Ct. 2279. The Court nonetheless held that such statements were not persuasive evidence that Congress as a whole intended to repeal the Act. Id. at 191, 98 S. Ct. 2279. In this case, the Corps has offered no evidence that the various appropriations committees ever considered the authorization issue. Thus we find even less direct evidence than existed in TVA v. Hill that Congress intended appropriations to be equated with authorization. 594 F.2d 742, 746 n.6 [9 ELR 20274] (9th Cir. 1979). See also American Fed'n of Court Employees v. Campbell (D.C. Cir. No. 79-2024, decided Dec. 18, 1980), wherein the Court held that Congress amended pro tanto a substantive act setting wage rates for federal employees when it passed an appropriations bill that placed a cap on pay increases below the level permitted by the Act. In so doing, the Court noted that the substantive act was expressly referred to in the limiting appropriations bill, thus it concluded that TVA v. Hill, 437 U.S. 153 [8 ELR 20513] (1978), was distinguishable. 6. The federal defendants have also conceded this point in Federal Defendants' Response to Plaintiff's Second Set of Interrogatories, Feb. 13, 1980: Question 2: Do you contend that the Act of August 9, 1965, taken alone, compels the Secretary, as a matter of law, to expend in FY 1980 and on the Garrison Project any funds previously appropriated for project activity even if the Secretary concludes that the requirements of statutes, including NEPA, have not been fulfilled? Answer: No, the 1965 Act in and of itself does not. 7. The Court does not find it necessary to now reach the issue raised on summary judgment as to whether the Secretary was compelled to withhold construction until Congress took further authorizing action based on his NEPA analysis. The Court has merely determined that it was within his discretion to enter into an agreement to delay construction until Congress has the benefit of his proposed legislation despite the 1965 authorizing language. 11 ELR 20551 | Environmental Law Reporter | copyright © 1981 | All rights reserved |