James River Flood Control Association v. Watt

No. 81-1012 (D.S.D. May 18, 1982)

The court grants a preliminary injunction against defendants' acquisition of land and construction for the initial stage of the Garrison Diversion Unit in the West Oakes area of North Dakota. The court first concludes that plaintiffs are likely to succeed on the merits of their claim that the project will violate the National Environmental Policy Act (NEPA). Next the court finds that the plaintiffs have shown that they will be irreparably harmed by construction of the project. It also appears that the public interest will be severely harmed if construction of the challenged project proceeds in spite of defendants' likely NEPA violations. Finally, the court finds that any injury to defendants from halting the project during the pendency of this case is outweighed by the probability of harm to the plaintiffs and to the public interest.

Counsel for Plaintiffs
Thomas E. Klinkel
Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel
P.O. Box 489, Aberdeen SD 57401
(605) 225-6311

Counsel for Defendants
Don Bowen, Ass't U.S. Attorney
425 Fed. Bldg. & U.S. Cthse., Pierre SD 57501
(605) 224-5420

Andrew F. Walch
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4080

Counsel for Intervenors
Murray G. Sagsveen, Special Ass't Attorney General
Zuger & Bucklin
P.O. Box 1695, Bismarck ND 58502
(701) 223-2711

[12 ELR 20757]

Porter, J.:

Order

Upon all the evidence presented at trial, the Court finds

(1) that there is a very substantial question of law present in this case, and a substantial likelihood of success on the merits on both of plaintiffs' causes of action;

(2) that there is a substantial probability that if the challenged project is allowed to go forward, plaintiffs' present interests in the proper compliance by defendants with the provisions of the National Environmental Policy Act (NEPA) will be irreparably harmed by construction of a project which is likely in violation of NEPA;

(3) that the public interest will also be severely harmed if construction of the challenged project proceeds in spite of defendants' likely violations of NEPA and other federal statutes in that any funds spent by defendants on the prosecution of an illegal project will be irretrievably lost;

(4) that in view of the probability of harm to plaintiffs' interests and the public interest, any injury accruing to defendants by the enjoining of the project during the pendency of this case is outweighed by the probability of harm to the plaintiffs and to the public interest, it is therefore

ORDERED that defendants are hereby enjoined from any acquisition of land and construction in the West Oakes area, initial stage of the Garrison Diversion Unit, during the pendency of this action or until further Order of this Court.

Dated May 18, 1982.