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355 South Fourth East StreetSalt Lalu City, Utah 8411 I
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U A L A N T E N E W
S L E T T E R
79-5(All Congressional 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
H.R. 3506 (UDALL) by request
A bill to enable the Secretary of Energy to utilize revenues from power market-ing to carry out his responsibilities related to Alaska Power Administration, Southeastern Power Administration, Southwestern Power Administration, and Western Area Power Administration, and for other purposes; to the Conunittee on Interior and Insular Affairs.
FEDERAL REGISTER 44 Fed. Reg. 21384, April 10, 1979.
The Department of the Interior issued a notice of the availability of a draft EIS covering "Municipal and Industrial Systems - Bonneville Unit, Central Utah Project, Utah."
44 Fed. Reg. 22069, April 13, 1979.
EPA has announced "Final and Interim Final Rules" covering "Effluent Guidelines and Standards, Oil and Gas Extraction Point Source Category."
44 Fed. Reg. 22463, April 16, 1979. .
EPA has announced an amendment to the "Canned and Preserved Fruit Point Source Subcategory • • • Effluent Limitations."
44 Fed. Reg. 24095, April 24, 1979.
DOE has issued a "Notice of Proposed Rulemaking" which would amend present regulations covering applications for license for utilization of water power potential of existing dams.
44 Fed. Reg. 25475, May 1, 1979.
EPA has announced a notice of intent to issue final NPDES regulations. This notice sets the time and date when the regulations are to become effective
44 Fed. Reg. 25786, May 2, 1979.
The Department of Agriculture, Soil Conservation Service, has issued proposed rules covering General Procedures for NEPA Compliance for its programs.
44 Fed. Reg. 27270, May 9, 1979.
The Bureau of Reclamation has issued notice of proposed preparation of a draft EIS for the Gallup-Navajo Indian Water Supply Project.
LAW REVIEW
Holyoak, "Tribal Sovereignty and the Supreme Court 1977-79 Term,"
B.Y
.U.
LawReview,
Vol. 1978, No. 4, p. 911. In this "Comment" the author reviews court cases dealing with Indian Tribal Sovereignty. Conclusion: Tribes have a limited sort of sovereignty. - - - = .---....-Ericsson, "The Navigation Servitude and Reserved Indian Property: Does the Rule of No Compensation Apply to Indian Interests in Navigable Waters,"
Utah
Law
Review,
1979, p. 57. The theme is that we ought to pay the Indians rather than claim Indian property taken is subject to the navigation servitude. Again sentiment is substituted for logic in arriving at the above conclusion. If we want to provide for Indian relief, why not say so?SUPREME COURT Petition for Certiorari
No. 78-1472,
CostZe v.
Pacific Legal
Foundation.
Ruling below - CA9, 586 P.2d 650, 11 ERC 2125. The issue was the right of public hearing under the Clean Water Act when a discharge permit is granted, 47 Law Week 3652, April 2, 1979. No. 78-1522,Andrus
v.
Utah.
Ruling below - CAlO, 586 F.2d 756. State selec-tion federal grazing lands in lieu of lost school-grant lands. 47 Law Week 3684, April 17, 1979.No. 78-1538,
Callabow
v. Kimball,
CA9. Indians, treaty rights to hunt, fish and on reservation lands--exercise of such rights by unenrolled tribal :c--~~~~~~---~~ 47 BAw w~~3otr4'7""AprlI I i , 1979.COURT CASES
People
v. Shirokow,
153 Cal. Rpts. 141.Under California law, an adverse user could secure a water right by prescrip-tion as against downstream riparian users and prior appropriators whereby building an unpermitted dam. The. user had made use of the water for more than the prescriptive period. The Court ruled that California permit system was only meant to apply to water available in excess of that necessary to
supply vested riparian and appropriative rights, Prescriptive rights could be acquired against the vested users by taking and using their water in an open and hostile manner under an adverse claim of right for the statutory period.
Pacific Legal Foundation v. State Energy Commission,
U.S. Dist. Ct., 12 ERC 1899. California statute which precludes development of nuclear power in California until the state agency has found that NRC has approved the technology for disposing of high-level nuclear waste is preempted by the Atomic Energy Act, Section 202l(c). The cited section provides that NRC retains control over disposal of nuclear wastes. Congress has not authorized states to in anyway interfer with this disposal authority. California had no authority to use this method to preclude nuclear power development.McLeary v. State Department of Game,
Washington, 591 P.2d 778.The State Game Department h~~ no right to take water from a stream to run a fish hatchery without first securing a water right permit.
Baughman v. Bradford Coal Company,
C.A. 3, 12 ERC 1920.S~ction 304(b), Clean Air Act, does not bar federal court hearings of a citizen's suit against a polluter even though there is pending a state aµministrative hearing agairi~t the polluter involving the same pollution p~curance. Section 304(b) is only a citizens suit bar where there is effective state or federal court action pending.
Globe FurDyeingCorpor>ation v. U.S.,
U.S. Dist. Ct., D.C., 12 ERC 1926.The Marine Manunal Protection Act's prohibiting against importing marine mannnals killed at less than 8 months of age does not deprive an animal skin dealer of Fifth Amendment due process to equal protection since the prohibitions are rationally related to the Act's stated goals of preserv-ing the manunals for their asethetic value,
United States v. Bailey,
U.S. Dist. Ct., Arkansas, 12 ERC 1955.The Corps was denied injunctive relief which sought to compel a Corps permit holder under Section 10, 1899 Rivers and Harbors Act, to modify the structure to conform height requirement. Here the Corps granted the permit in 1966 to construct a dike on the bank of the Arkansas River. Inspections were made during and after construction by the Corps with no objection to the excessive height. It was not until 1973 that the Corps raised the issue of height. The Court ruled the Corps was estopped under the facts of the case to secure relief requiring defendants to lower the dike to the permit height.
Clawson v. Garrison,
Kansas, 592 P.2d 117.The Court ruled that an upper landown_er cannot, by leveling for irrigation, create a water drainage condition which increases flooding of a lower land-owner's land. Such upper owner will be required to create a water retention devise equal to the preleveling retention ability of said land.
Citizens to Save Spencer County v. EPA,
C.A., D.C., 12 ERC 1961.In a laborious opinion the D.C. Circuit approved EPA's middle course regulation which sought to effectuate the admitted conflict between Section 165 and Section 168 of the Clean Air Act. The source of authority to take on the task of
rewriting the legislation was found in Section 301 of the same act which authorized those regulations necessary to carry out EPA's functions under the Act. At issue was the procedure by which "prevention of significant
deteriora-tion requirements" would be carried into operadeteriora-tion. EPA attempted to rescue Congress from the legislative swamp created by the 1977 Amendments to the Clean Air Act, P.L. 95-95.
U.S. v. Cameron,
U.S. Dist. Ct., Florida, 12 ERC 2005.In order for the Corps to compel a riparian land owner to remove a dike
along Lake Front property under Section 10, Rivers and Harbors Act of 1899,
the Corps was required to prove said dike was located below the high water mark of the lake. The Corps' vegetation, soil, eyewitness, photographic,
and survey e~idence failed to establish this crucial fact, and therefore
the Court denied the requested relief.
Borland
v. Sanders Land
Company,
Alabama, 12 ERC 2017.Compliance with State air laws does not preclude a trespass action against
a Lead Company by an adjacent farm owners seeking damages for smelter caused
lead and sulfur dioxide emissions. The Court also ruled that the fact that the farm land became more valuable as industrial property because of its location near the smelter could not be considered in assessing damages to the farm.
Central Illinois Public Service v. EPA,
C.A. 7, 12 ERC 2022,~PA is not authorized to deny a Section lll(j), Clean Air Act, waiver for the use of innovative technology for a new plant on the grounds that such application was not made prior to the commencement of operation of such plant.
Colorado River
Water
Conservation
District, et
al. v.
Colorado
Water Conservation
Board,
Colorado, P.2d---A
statute which authorized the Defendant Board to file for water ri~hts foruse as minimum stream flow was found by the Court to be constitutional. By statute the legislature could authorize the acquisition of a water right
without a diversion from the stream.
California Tahoe
Regiona.l
Planning Agency v. Jennings,
C.A.,9 ELR 2031.
F.2d
-Another Tahoe Regional Planning Agency problem was decided by the 9th Circuit. Under the provision of TRPA ordiance, Douglas County, Nevada approved construc-tion permits, TRPA approved the permits by default. The Federal District
Court dismissed the application for review of this difficult approval and California attempted to stop the development on the grounds that a nuisance was being created. The Circuit Court affirmed holdings:
1. For federal jurisdiction purposes, the Compact being approved by
Congres.s_presen.ts.__a -f.-e-deral q-uestien- wh · -ns-t-rueaou o-btlie compact
·s-in issue. Construction of a TRPA ordinance may present a federal question issue, particularly when conflicting construction of the ordinance may impair
the Compact's operation and there exists no judicial mechanism for resolving
the conflict.
2, California joined in the compact game, and cannot now renige on the rules when the results fail to satisfy its environmental sensitivities.
Eastern
Band of Ch
erokee Indians
v.
N.
c.
Wildlife
Resources
Commission,
C.A. 4, _ _ F. 2d , 9 ELR 20106.The Fourth Circuit denied North Carolina authority to regulate non Indian fishing on reservation claiming that such regulation would frustrate tribal
self government. Also such regulation would deprive the tribe of some measure of financial self sufficiency.
4
-The Fouke Company v. Brown,
U.S. Dist. Ct., California, 9 ELR 20113.California's Endangered Species Act is not enforceable with respect to the American alligator inasmuch as it is in direct conflict with Section 6 of
the Federal Endangered Species Act. The Fouke Company held a Fish and Wild-life Service permit under Section 6 authorizing it to use the alligator hides for commercial purpose and California cannot void a permit issued by the United States by the application of its laws.
Alaska v. And:t>us,
C.A. 9, F.2d , 9 ELR 20137.The Secretary of the Interior is not required to prepare an EIS on his refusal to take action to halt the Alaskan State wolf killing program, the execution of which would take place on Federal lands. Here there was no Federal funding of the State action.
United States v. Kane,
U.S.Dist. Ct., New York, 461 F.Supp. 554, 9 ELR 20142.The United States is entitled to summary judgment requiring defendant to remove a fence which extended from the high water mark to the low water mark of a navigable bay, and further the Corps properly refused a permit for such fence on navigability ground and environmental ground under NEPA which the Corps must now consider when permit applications are before it. The Corps is required to promote the NEPA policies set forth in this Act.
Union Electric Company v. EPA,
C.A. 8th, 9 ELR 20154.Federal courts are not authorized to enjoin EPA's enforcement action under the Clean Air Act even though the utility in this case had a variance appli-cation before the State Board which would have mooted the reason for the enforcement. The Court's injunction action took the enforcement options away from EPA, and this is not authorized.
Mapco Inc. v. Grunder,
U.S. Dist. Ct., Ohio, 12 ERC 2025.Ohio's tax system which increased the levy on coal in inverse ratio to the sulfur content so as to favor Ohio coal for power generation violates the Commerce Clause of the U.S. Constitution.
StelJa:r't Tr>ansportation Company v. AZZied Towing,
C.A. 5, 12 ERC 2035.In an oil spill case the Court ruled:
1. A barge owner cannot recover contribution from the tug boat company for oil spill clean up where the big boat and barge were designed to with-stand the storm within which they were operating at time of spill.
2. The barge owner, even though negiligent in its maintenance program, which actually caused the spill, could still claim benefits of the Section 3ll(f)(l) liability limitation, inasmuch as the United States did not prove "willful negligence with misconduct" caused the spill.
3. U.S. recovery of clean up costs is limited to the provisions in the "Clean Water Act" and cannot recover for nuisance, maritime tort or violation of the 1899 Rivers and Harbors Act.
4. The State of Virginia can recover its clean up costs under State law which was not preempted by the oil spill provision of the Clean Water Act.
Port of Astoria v. Hodel, C.A. 9, 12 ERG 2044.
In a case involving Bonneville Power Administration's power contract with a
nrw aluminum reduction plant, the Court ruled:
1. Since the proposed plant was relocated, a new EIS would have to be developed covering this move.
2. Since the power contract would start the BPA Hydro-Thermal Power Program
phase two for the managing of electrical power distribution in the northwest,
an EIS would have to be developed covering this program. Note: This is a power-producing program whereby it is hoped that all powerplants can be
operated as a joint system so as to utilize the full potential of said
producers. •
Corn Refiners Association v. Castle, C.A. 8, 12 ERG 2054.
EPA is not required as part of establishing effluent limitations to include
a provision which exempts a permit holder from enforcement action when there
is an unintentional violation of such limitation.
