AQUALANTE NEWSLETTER, March 1979

SENATE

UPPBB COLORADO BIVBB COIIIIISSION

Salt l..tw City, Utah 841 I I

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(All Congressj.ortal Record references are to Vol. 125, Daily Edition, of the 96th Congress, 1st Session, and will be cited as "p. _ _ , CR, date.")

BILLS INTRODUCED IN 96th CONGRESS

S. 654 (GOLDWATER, et al.)

A bill to remove residency requirements and acreage limitations applicable to land subject to reclamation law; to the Committee on Energy and Natural Resources. (Seep. 82730, CR, March 14, 1979, for Senator Goldwater's remarks when introducing this Bill,)

S. 734 (JACKSON, by request)

A bill to enable the Secretary of Energy to utilize revenues from power marketing, to carry out his responsibilities related to Alaska Power ministration, Southeastern Power Administration, Southwestern Power Ad-ministration, and Western Area Power AdAd-ministration, and for other purposes; to the Committee on Energy and Natural Resources. (March 22, 1979)

S. 829 (BELLMON)

A bill to declare a comprehensive and coordinated national weather resources management policy, to provide for the development of standards and guidelines for weather resources management, and to establish a national program of research and development in the weather resources management field; to Ehe Conunittee on Commerce, Science, and Transportation. See pp. 53686-3689, CR, March 29, 1979, for the remarks of Senator Bellmon when introducing this Bill.

S. 833 (RANDOLPH, by request)

A bill amending the Water Resources Planning Act of 1965 to implement state water management and conservatiqn technical assistance porgrams, and for other purposes; to the Committee on Environment and Public Works. (March 29, 1979)

HOUSE

R.R. 2636 (DOWNEY)

A bill to amend the Federal Water Pollution Control Act to provide Federal funding for the costs of operation and maintenance of waste treatment works;

R.R. 2996 (BURGENER)

A bill to exempt land.s within the Imperial Irrigation District of California from certain acreage limitations of the Federal reclamation laws; to the Committee on Interior and Insular Affairs. (March 15, 1979)

R.R. 3289 (DUNCAN of Tennessee)

A bill to exempt the Tellico Dam and Reservoir project in Tennessee from the prov1s1ons of the Endangered Species Act of 1973; to the Committee on Merchant Marine and Fisheries. (March 28, 1979)

H.R. 3337 (GREEN, et al.)

A bill to amend title II of the Federal Water Pollution Control Act to extend the period from 24 to 36 months that funds allotted to a State for construc-tion of treatment works shall remain available for obligation by the State;

- ~ o_Ehe Commtttee Qn Public Works and Transy.3.rtation (March ~9~,,__1_9_7~9~)~~~~~~~~ H.R. 3393 (WEAVER, et al.)

A bill to supplement and clarify the Federal reclamation laws, to promote the settlement of family farmers in Federal irrigation projects, to provide for acreage equivalency between class 1 lands and lands of lesser productive capability, and for other purposes; to the Committee on Interior and Insular Affairs. (April 2, 1979)

FEDERAL REGISTER

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The Department of the Interior has issued Regulations covering Surface Coal Mining and Reclamation Operations.

44 Fed. Reg. 15528, March 14, 1979.

Western Area Power Administration has announced Allocation of Peaking Power, Colorado River Storage Project,

44 Fed. Reg, 20461, April 5, 1979.

EPA has proposed amendments to the Canned and Preserved Seafood Processing Point Source Category.

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-·~~-LAW REVIEW

Parker and Stone, "Standing and Public Law Remedies," 78 Columbia Law Review 771. The authors claim that "standing" should not be used to select parties.

Query: Should law adjudication be used to settle public law problems?

Freudenthal, "Environmental Law: Snail Darter -- A Threat to a Private Use of the Public Domain?" Tennessee Valley Authority v. Hill, 98 S. Ct. 2299 (1978). 14 Land and Water Law Review 105.

Coggins and Patti, "The Resurrection and Expansion of the Migratory Bird Treaty Act," 50 Univ. of Colo. Law Review 165. The article outlines a new environmental tool through the use of this Act. It will serve as a tool to regulate wildlife and is suggested to be broader than the Endangered Species Act.

Beaton, "Breathing New Life into Section 8 of the 1902 Reclamation Act,

California v. U.S., 98 S. Ct. 2985," 50 University of Colorado Law Review 207.

The author suggests that this case actually does give the State a voice in Federal Reclamation development so.long as its noise is not inconsistent with the Federal purposes announced in the project authorizing legislation.

Coggins and Modrein, "Native American Indian and Federal Wildlife Law,"

31 Stanford Law Review 375. Federal wildlife protection laws conflict with some

of the Indian-claimed treaty rights. The article seeks to develop a "middle ground theory" for reconciling this conflict.

SUPREME COURT Review Granted:

No. 78-740, Andrus v. Allard, U.S. Dist. Ct., Colorado. Authority of the Secretary of the Interior to control commercial transactions in birds under Eagle Protection Act, 47 Law Week 3541, February 20, 1979.

No. 78-630, State of Washington v. Confederated Tribes of Coleville, U.S.

Dist. Ct., Washington, 446 F.Supp. 1339. Authority of State to impose tax on non-Indian traders doing business on Indian Reservation, 47 Law

Week 3541, February 20, 1979.

No. 77-1819, Vaughn v. Vermillion Corporation, La. Sup. Ct., 357 So.2d 558. Does navigable channels created by private funds on private lands which are connected to interstate navigable waters become subject to Federal navigable servitude? 47 Law week 3543, February 20, 1979,

No, 78-738, Kaiser Aetna v. U.S., to be argued in tandem with Vaughn,

47 Law Week 3554, February 20, 1979,

Lake County Estates Inc. v. Tahoe Regional Planning Agency, Supreme Court,

47 Law Week 4256,

The Supreme Court ruled in a Compact case:

1. The fact that United States Congress is required to approve a com-pact between States does not foreclose a finding that the commission was operating "under the color of state law."

2. The Compact Commission cannot claim 11th Amendment immunity on

grounds that it is an extention of the State. The Court indicated that the Commission would be treated as a municipal organization which has not been granted the 11th amendment.

3. Individual commission members would be granted legislative immunity

from Federal damage liability.

The Petitioners had brought suit against the Compact Commission, members, and executive director, claiming that the land use plan adopted by the Com-mission had destroyed the value of their property giving rise to a claim under 42 U.S.C. 1983. At issue was whether the Compact was State law or

Federal law for the purposes of this case. There were other issues in the

case, namely, whether the claim based on violation of Fifth and Fourteenth amendments gave rise to a cause of action and thus triggered the 11th

Amend-mend issue. Immunity from suit for the commissioners was also an important

issue in the case. The case probably confuses the Compact status issue.

-COURT CASES

Friendswood Development Company v. Smith-Southwest Industries, Inc., Texas,

576 SW2d 21.

The Texas Supreme Court affirmed a lower trial court judgment holding that a landowner could withdraw ground water without liability for damages to his neighbor's land (here severe subsidence). The Court further ruled that, for new wells, negligence would be considered a ground for recovery in future subsidence cases.

Natural Resources Defense Council v. Schultze, U.S. Dist. Ct., D. C., 12 ERC 1737. An injunction will not be granted in favor of environmental plaintiffs

grounded on claims that the President's Council of Economic Advisors was

making ex parte contacts with Interior during the rulemakine proceeding

arui that such contacts will illegally affect the outcome of the Surface Mining Control and Reclamation Act's fin~l regulations. ~he

Court"'founcr-the plaintiffs will not suffer irremediable harm from the delay occasioned by challenge to said regulations following promulgation.

Village of Kaktovik v. Corps of Engineers, U.S. Dist. Ct., Alaska, 12 ERC 1740. In order to secure a preliminary injunction on allegations of violation of environmental laws, the plaintiffs will have to demonstrate a

likeli-hood of success on the merits and a balance of irreparable harm in their favor. In this case the plaintiffs could not make this demonstration in a suit which claimed the Corps failed to follow NEPA, Endangered Species, and Clean Water Act mandates in its granting of a permit for exploratory offshore drilling.

Alton Box Board Company v. EPA, C.A. 7th, 12 ERC 1753.

The Seventh Circuit required EPA to grant an adjudicatory hearing to a permit applicant who was seeking a variance from the rigors of BPT limitations. EPA seemed to be playing a "Catch 22" game with the applicant, and the Court refused to buy EPA's position. The case is factually complex and is not adequately summarized in this note.

Wisconsin Heritages, Inc. v. Harris, U.S. Dist. Ct., Wisconsin, 12 ERC 1759. NEPA required that HUD prepare an EIS for an urban renewal project which

ruL.b..e. .aJ.l but _co te.d. __ Here ere Wfil!. p, rete.ntioJL_o:(_ .£_ont!,_ol_ over

some remaining funds which had not as yet been used, and the Court seized

on this as a basis for requiring the EIS. It seemed somewhat absurd because final action was almost foreclased by the previous use of the

Federal funds. The case has to be read to appreciate the long arm of

NEPA.

South Dakota v. Andrus, U.S. Dist. Ct., South Dakota, 12 ERC 1764.

Interior is not required to prepare an EIS on the granting of a mineral

patent for a mining claim in the National Forest since the granting of a

patent is nondiscretionary after the applicant has fulfilled the legal requirements and the action of granting the patent is not major Federal

action within the meaning of NEPA.

...

Blake v. Lambert, Utah, 590 P.2d 351.

The State Engineer's denial of an extention of time within which the applied

for appropriation of water would be completed was affirmed by the Supreme

Court. Here the applicant's excuses for failure to complete the required development was unacceptable in light of the fact that he had failed to

secure a necessary BLM easement and would neither be an owner or a possessor

of the land on which the water was to be used.

Laramie River Council v. Industrial Siting Council, Supreme Ct., Wyoming, 12 ERC 1769. Wyoming Industrial Siting Council could grant a permit to build a coal-fired powerplant without subjecting the application to a second stage intensive

study and evaluation provision inasmuch as there was substantial evidence

in the administrative record that the plant would not pose a threat of

serious injury to the environment or social or economic conditions.

Donner Hanna Coke Corporation v. Castle, U.S. Dist. Ct., New York, 12 ERC 1780. EPA cannot use a particular test to determine the violation of air standards

by the coke ovens where such test was not the result of rulemaking. EPA

must submit its proposed test procedure to rulemaking prior to using the same as a basis for an enforcement action.

Pokorny v. Castle, U.S. Dist. Ct., Nebraska, 12 ERC 1789.

EPA reasonably determined that a proposed sewage treatment system did not

require an EIS even though part of the treatment system was within the

100-year flood plain of a river. The assessment made by EPA reasonably

presented factual material supporting the conclusion that an EIS was not required.

Commonwealth of Massachusetts v. Andrus, C.A. 1st, 12 ERC 1801.

The fundamental ground for the Lower Court's granting of an injunction barring the sale of Outer Continental Shelf oil leases was the need to await pending

Congressional action on amendments to the Act covering said sale, Since

Congress had acted by amending the law, the injunction should be lifted and the Secretary permitted to comply with these amendments.

United States v. County Board of Arlington County, U.S. Dist. Ct., Virginia, 12 ERC 1817.

The United States cannot secure an injunction barring the construction of

buildings in Virginia based on a claim that such buildings will constitute

an aesthetic nuisance inasmuch as the view for visitors in the capitol area

will somehow be encumbered. The Court ruled if the United States wanted

to maintain the view, it should secure an easement to protect the "sight"

area. Height alone would not create a public nuisance in the fact situation.

canal Authority of Florida v. Froehlke, U.S. Dist. Ct., Florida, 12 ERC 1827.

The plaintiffs sought "appendix materials" to an EIS which had been marked

•:confidential" by the Corps by the use of the Federal Rules discovery pro-cedure. The Corps based its refusal on "the confidential report privilege"

rule. The Court rejected this argument, stating that such rule must be

based on statutory authority. In this case the Corps failed to provide statutory authority which made the material contained in the report con-fidential.

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-Natural Resources Defense Council v. Castle, U.S. Dist. Ct., D.C., 12 ERC 1833. In a suit entered in 1976 which sought to modify a consent settlement agree -ment involving toxic substances, the Court accepted the modification suggested

by NRDC and EPA. The Court specifically rejected the claims of the

inter-vening industrial interests. The intervenors had claimed that the 1977 amendments of the Clean Water Act had actually superseded the original

consent agreement requiring that it be withdrawn. The decision is detailed and is not capable of being fully covered in this short summary.

South Louisiana Environmental Council v. Rush, U.S. Dist. Ct., La., 12 ERC 1844. This case is presented only for the purpose of indicating another NEPA case wherein the Court made an elaborate analysis of the EIS in order to sustain

the Corps' action in developing a dredging project which would enlarge a

navigation channel. The project impacted wetlands, endangered species, and

wildlife. The attack on the EIS was comprehensive. The case is cited for

informational purposes.

E, C. Fullerton and California Department of Fish and Games v. California State Water Resources Control Board, et al., Court of Appeals, 1st Appellate District,

Cal. App.

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denied a water permit to the Game and Fish Department for an "in stream" appropriation, The Game and Fish Department sought the appropriation for fish protection. The ruling was based upon the fact that the Game and Fish Department would not be in the position to exercise control over the water. Under California law, to secure a permit to make an appropriation the

appli-cant must be able to exercise some physical control over the water. It should also be noted that the California water code did provide for a means by which the needs for fish and wildlife protection could be presented to the Resources Control Board. The legislature had developed this scheme so

that a "need" balance could be made by the Resources Control Board so as to provide for the "general welfare" in the putting of the state water resources to the fullest beneficial use.

California Trout, Inc. v. The State Water Resources Control Board, _ _ Cal. App. In this case another California Appellate Court arrived at the same conclusion as the case last above reported.

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