Confederated Tribes of the Umatilla Indian Reservation v. Callaway

Civ. No. 74-991 (D. Or. February 13, 1976)

ELR Digest

The court grants partial summary judgment to plaintiff and enjoins expenditure of unexpended appropriated funds by the Corps of Engineers for the Catherine Creek Dam project on the ground that appropriations were made prior to the filing of a final environmental impact statement. Whether the dam, to be located 30 miles southwest of the plaintiff's reservation, will inundate fishing "stations," as defined in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), secured to plaintiff by an 1855 treaty, is a factual question that must be resolved at trial. In addition, there are no lands that are "unclaimed" within the meaning of that treaty where plaintiff's hunting rights would be impaired; plaintiff's claim that the project will have an adverse effect on wildlife on unclaimed lands is without merit. Similarly, plaintiff has not demonstrated that its members' right secured by the treaty to gather roots and berries will be affected by the dam.

This project is a "major federal action significantly affecting the environment" within the meaning of NEPA. Since the final environmental impact statement was filed in 1975 after funds had been appropriated, the expenditure of all unexpended fiscal 1973-75 appropriations is enjoined. Sierra Club v. Froehlke, 359 F. Supp. 1289, 3 ELR 20248 (S.D. Tex. 1973), rev'd on other grounds, 499 F.2d 982, 4 ELR 20731 (5th Cir. 1974). The defendants, however, need not follow the water resources planning guidelines of the Water Resources Council, since projects like this one that were authorized but unfunded when the guidelines became effective are subject to the guidelines only at the discretion of the agency head. In this case, the agency decided not to follow the guidelines.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1046).

Counsel for Plaintiff
Levi J. Smith
811 S.W. Sixth Avenue
Portland OR 97204
(503) 228-0316

Dennis J. Whittlesey
Hogan & Hartson
815 Connecticut Ave.
Washington DC 20006
(202) 331-4500

Daniel H. Israel
Native American Rights Fund
1506 Broadway
Boulder CO 80302
(303) 447-8760

Counsel for Defendant
Sidney I. Lezak, U.S. Attorney
Thomas C. Lee, Asst. U.S. Attorney
P.O. Box 71
Portland OR 97207
(503) 221-2101

Belloni, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]