National Audubon Society v. Andrus

No. 76-0943 (D.D.C. May 11, 1977)

The parties agree to a settlement of this suit challenging the adequacy of the final environmental impact statement (EIS) prepared in connection with a proposed legislative authorization for construction of the Bureau of Reclamation's Garrison Diversion Unit. Noting the President's recent recommendation that the project be substantially modified, the parties stipulate that, with certain specific exceptions, no further construction or land acquisition will be carried out.The federal defendants also agree to prepare a comprehensive supplementary EIS describing all reasonable alternatives to the project and to file a draft with the Council on Environmental Quality by January 1, 1978. A fish and wildlife mitigation plan is also to be prepared. For the moving papers in this litigation, see ELR 65351, 65375.

Counsel for Plaintiff
Charles K. Dayton
Dayton, Herman & Graham
800 Midland Bank Bldg., Minneapolis MN 55401
(612) 339-7633

Bruce J. Terris
1526 18th St., NW, Washington DC 20036
(202) 332-1882

Counsel for Defendants
Andrew F. Walch, Tim E. Sleeth
Department of Justice
Washington DC 20530
(202) 737-8200

[7 ELR 20414]

Richey, J.:

Stipulation and Order

National Audubon Society filed its complaint in May 1976, raising issues relative to the environmental assessment of the Garrison Diversion Unit (the project) presented in a final environmental statement (FES 74-3, as supplemented by FES 74-21) issued in January 1974 by the federal defendants, the Secretary of the Interior, and the Commissioner of the Bureau of Reclamation, as well as issues relative to alleged violations of the Fish and Wildlife Coordination Act and the Migratory Bird Treaty and Act. Pending before the court are cross-motions for summary judgment and plaintiff's motion for preliminary injunction, plus ancillary matters. The parties to this agreement recognize that the issues raised in the complaint are difficult and complex, and that their resolution in judicial proceedings is uncertain. A judgment entered in this case at this time may be a less than satisfactory conclusion for the parties, or any of them, due to the range of relief available to the court. In light of the difficulties associated with the litigation noted above and the uncertainties raised by the President's recommendation that the Garrison Diversion Unit be substantially modified, as well as the issues pending in regard to the Boundary Waters Treaty of 1909 between Canada and the United States, the parties deem a stay of this judicial proceeding to be warranted.

The parties recognize that the issues raised by plaintiff may become altered as a result of the actions of the federal defendants under this agreement and subsequent congressional action.

Accordingly, to conserve judicial resources and afford the Secretary of Interior and the Commissioner of the Bureau of Reclamation an opportunity to undertake the commitments made [7 ELR 20415] herein, the parties agree to a stay of all proceedings in this action, in accordance with the following terms and conditions.

(A) With the exception of the actions described in paragraph (B), no further construction will be carried out; no further contracts will be entered into; no advertisement for bids on contracts will be published; no further land will be purchased, or otherwise acquired, or negotiated for; no survey will be made and no detailed engineering plans leading to the preparation of construction specifications shall be developed until the conditions set forth in paragraph (D) have been complied with.

(B) Plaintiff agrees that:

(1) McClusky Canal may be completed, provided that: the headgates located at the west end of the McClusky Canal shall remain as presently sealed and the canal plugs located at Stations 3135 + 00 (between Hoffer Lake and Skunk Lake), 3173 + 00 (Skunk Lake), at the end of Reach 3A and in Reach 2 at the Chain-of-Lakes, and coffer dams implaced for repair of the large slide shall remain in place until Missouri River water is required for orderly development of irrigation service areas outside of the Missouri River Basin; but in any event, these barriers shall not be removed until the conditions described in paragraph (D) are met. It is not the intent of this agreement to prevent work related to McClusky Canal for the following and similar activities: slide repair, erosion control, road and utilities relocation, completion of the existing fish screen complex contracts, landscaping and parking areas, and operations and maintenance buildings.

(2) This agreement is not intended to prevent work related to or execution of contracts for research, operation and maintenance equipment and office supplies, preparation of an environmental statement, and preparation of studies supporting authorizing legislation.

(3) Further, acquisition of land relating to the Lonetree Reservoir from a maximum of eight landowners may be completed, provided that this land may only be acquired if the contracts for this acquisition have already been executed prior to the date of this agreement, the Department of the Interior notifies each landowner that he or she need not sell his or her land, and the landowners continue to desire to sell their land. Plaintiff will be notified of the names and addresses of each landowner, including, if more than one person has an interest in a particular piece of land, each such person. Plaintiff will have the right to discuss with each landowner whether he or she desires to sell the land. The Department of the Interior shall not acquire any such land until at least 14 days from the date of the above notification to plaintiff.

(C) The federal defendants agree to complete a comprehensive supplementary environmental statement in compliance with NEPA that describes all reasonable alternatives for the project, including, but not limited to, the project as currently authorized by Congress, the project as proposed by President Carter (including modification of that proposal by elimination of the East Oakes Service Area and Taayer Reservoir), utilizing a sand filter for water entering the Red River Basin from the McClusky Canal (designated primarily for municipal and industrial use and perhaps other uses), use of a pipeline to connect the McClusky Canal to a point on the James River, use of the McClusky Canal without further significant construction, and no project. The Bureau of Reclamation, within its reasonable discretion, will consult with plaintiff and others concerning the scope and content of the environmental statement before and during its preparation. The draft environmental statement shall be completed on or about January 1, 1978, filed with the Council on Environmental Quality and accompany proposed legislation by the Secretary of Interior to Congress requesting authorization of an option for project development described in the environmental statement, or reauthorization or deauthorization of the project. Defendants will endeavor to complete and transmit to Congress the final environmental statement within 90 days after filing of the draft with the Council on Environmental Quality. A fish and wildlife mitigation plan will be submitted with the proposed legislation to Congress. The plan will include a discussion of compensation for losses resulting from wetland drainage, stream channelization, cultivation of native prairie, creation of hazardous nesting cover, adverse impacts on national wildlife refuges, introduction of rough fish, increased flows, and alteration of water temperatures.

(D) No action prohibited by paragraph (A) will be undertaken until the actions taken pursuant to paragraph (C) have been completed and Congress has thereafter reauthorized the project or authorized an option for project development, and an additional 60 days have elapsed.

(E) The Secretary of Interior will notify Congress of this stipulation and order by transmitting a copy thereof to the appropriate committees of Congress. In the letters of transmittal, the Secretary will indicate that it is the belief of the parties that consideration of authorizing legislation relative to the Garrison Diversion Unit should await submittal and consideration by Congress of the proposed legislation and environmental statement described herein.

(F) Nothing in this stipulation and order shall be construed as precluding any party from taking any position relative to the project or its alternatives it deems appropriate, or as conceding any of the legal issues or defenses thereto raised by the pleadings. The parties agree not to take any action to attempt to nullify this agreement.

(G) All pending motions and responses thereto are hereby withdrawn without prejudice by the parties upon approval of this stipulation and entry of this order by the court. The pleadings shall remain filed.

(H) This agreement is non-severable. 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. This agreement shall be enforced by the United States District Court for the District of Columbia as part of the pending litigation.