Friends of the Earth v. Armstrong

(D. Utah February 27, 1973)

The court grants summary judgment compelling Secretary of the Interior Morton and Commissioner Armstrong of the Bureau of Reclamation to remove from within the boundaries of Rainbow Bridge National Monument any waters of Lake Powell and the Glen Canyon unit impounded there. The court holds that this suit is not barred by sovereign immunity, and that the Colorado River Storage Project Act forbids such an intrusion or impoundment.

Counsel for Plaintiffs
James W. Moorman
311 California Street
Suite 311
San Francisco, California 94104

James B. Lee
520 Kearns Building
Salt Lake City, Utah 84101

Owen Olpin
College of Law
University of Utah
Salt Lake City, Utah 84112

Counsel for Defendants
C. Nelson Day U.S. Attorney
200 Courthouse Building
Salt Lake City, Utah 84111

[3 ELR 20235]

Ritter, C.J.

ORDER JUDGMENT AND DECREE

This cause came on for hearing on Motion of the plaintiffs for Summary Judgment and on Cross-Motion of the defendants for Summary Judgment, pursuant to Rule 56, Federal Rules of Civil Procedure; the Court having considered the pleadings, files, records and evidence in the action, including the Stipulation of Agreed Facts dated January 14, 1972, the Affidavit of James Moorman, the Affidavit and Supplemental Affidavit of David L. Crandall, and the Affidavit of Felix L. Sparks appended to the Memorandum of the State of Colorado in Opposition to Motion for Summary Judgment; the Court having considered the briefs and the arguments of counsel; the Court, after a consideration of all of the foregoing and with a fuller view of the applicable law, and due deliberation having been had thereon, it is

ORDERED that plaintiffs' Motion for Summary Judgment be and the same hereby is granted, and it is further

ORDERED that defendants' Cross-Motion for Summary Judgment be and the same hereby is denied, and it is further

ORDERED, ADJUDGED AND DECREED:

1. That the plaintiffs have standing to bring this action;

2. That this action is not barred by the doctrine of sovereign immunity;

3. That there are no indispensable parties who have not been joined;

4. That this matter stands ready for final determination on the merits;

5. That Section 3 of the Colorado River Storage Project Act of 1956 (43 U.S.C. § 620b), by its clear expression of congressional intent, and as a matter of law, is applicable to the Rainbow Bridge National Monument and the Glen Canyon Dam.

6. That Section 3 of the Colorado River Storage Project Act of 1956 (43 U.S.C. § 620b) has not been repealed by implication;

7. That Section 3 of the Colorado River Storage Project Act of 1956 (43 U.S.C. § 620b) is still in full force and effect and forbids the intrusion of waters from Lake Powell and the Glen Canyon unit into the Rainbow Bridge National Manument;

8. That it is the statutory duty of Rogers C. B. Morton, the Secretary of the Interior, and Ellis L. Armstrong, the Commissioner of the Bureau of Reclamation, forthwith to remove all waters which have already intruded from Lake Powell and the Glen Canyon unit from the Rainbow Bridge National Monument and to prevent the waters from Lake Powell and the Glen Canyon unit from entering the boundaries of the Rainbow Bridge National Monument at all times in the future; and

9. That Rogers C. B. Morton, the Secretary of the Interior, and Ellis L. Armstrong, the Commissioner of the Bureau of Reclamation, their agents, servants and employees, and all persons in active concert and participation with them, are directed to take forthwith whatever actions are necessary to remove from within the boundaries of the Rainbow Bridge National Monument any waters of Lake Powell and the Glen Canyon unit impounded there, and to take forthwith such actions as are necessary to prevent any waters of Lake Powell and the Glen Canyon unit from entering within the boundaries of Rainbow Bridge National Monument and they, and each of them, are permanently enjoined and restrained from permitting or allowing the waters of Lake Powell and the Glen Canyon unit to enter or remain within the boundaries of the Rainbow Bridge National Monument.