Libby Rod and Gun Club v. John Poteat

reregulat- ceeding with construction WRIGHT, Before KENNEDY and approval; Congressional ing dam without TANG, Judges. Circuit Species (2) Endangered Act of violated the (3) seq.; failed to 1531 et U.S.C. § WRIGHT, Judge: A. EUGENE Circuit analysis of the cost-benefit conduct valid appeal preliminary This is an from a in the Flood Control required 701-09a; junction (4) enjoined construction of §§ Act 33 U.S.C. Libby Policy Additional and Reregulation Units Environmental violated National (hereinafter LAURD) on 4331 et (NEPA), the Kootenai of 1969 42 U.S.C. § Act River comply in Montana.1 with the seq.; (5) failed to ofAct National Preservation Historic The was authorized Flood 16 U.S.C. 470-470t. §§ (the Act), Control Act of 1950 Pub.L. preliminary 1950). The district court entered (May Stаt. 170 Construction began all construction injunction enjoining on dam in the main including the addition of completed project, in 1973. The Act ten LAURD Libby Dam. The generators main Libby generators for the Dam. were to the Four (1) grounds: ruling on two based its originally installed in the and the prevail would Corps (the Corps) Gun Club Engineers Rod and intends not authorized the add had part four more as because the LAURD (2) Rod project. project; and LAURD perfected, appeal appellant’s request appeals not been At these ex- 78-3297 were appeal pedited, February argued argued dismissed. briefed or and that 1979 before a disposes spеcial opinion panel, appendix issues herein and considered on the Our appeal. by appellants. in that We have been raised submitted deem that similarly A. Gun Club demonstrated that THE FLOOD CONTROL OF had ACT NEPA, complied had not adequately failed to consider contends the Act alternatives LAURD 1950, which authorized the construction of rereg the main also authorized a Corps appealed stay moved Act ulating contains no refer injunction pending appeal. of the A mo- facility. a in reregulation ence It to does panel motion, tions of this court denied the H.R.Doc.No.531, corporate by reference 81st but expan- allowed the to continue Cong., 2d sets the Sess. forth sion the Libby pending ap- main Dam Corps’ plans recommended for construction peal. Libby Paragraph Dam. 165 of document states: I. Reregulation. sudden increase —A of from load flow at minimum release AUTHORIZATION to stage full load river would raise the the dam about 15 feet. rise This sudden Although appeal this an from the stage partly would absorbed be granting of preliminary injunction, a storage, decreasing channel amount parties suggest that, because no further its esti- front traveled downstream. It is presented evidence is be to on the autho- mated that the maximum rise would quеstion, rization the district court’s holding city amount to 5 feet at the of about on that issue should be a treated as final Libby, Troy, less than 3 feet at and less decision. We conclude that public in- Ferry. than 2 feet at Bonners Just what terest can be served reviewing best this stage effect this have variation aspect of appeal the case as an along the river is unknown at this time. merits. However, probable operation Congressional required authorization is generating Libby calls this station a before dam be constructed on a very wide If it variation of load seldom. navigable river. 33 U.S.C. 401 § becomes to reduce this fluctua- Section provides 401 part: in relevant tion, reregulation will when be considered the need arises.

It shall not lawful to construct or commence bridge, construction of (Emphasis added.) dam, dike, causeway or over in any or 1| Corps argues placed because 165 . navigable river . . until Congress on possible notice of the need for the consent Congress to building a reregulating if dam additional turbines such structures shall have been obtained placed Libby were main general Libby

authorization Dam contained the Flood Control Act interpreted section been apply has to explicit included a federal dam projects. United lating facility. Arizona, States v. 174, 183-84, 295 U.S. 55 (1935); Atchison, S.Ct. 79 L.Ed. 1371 We con do read 165 to H Topeka Railway Fe v. Santa Calla Co. explicitly clusion that intended way, 382 F.Supp. (D.D.C.1974), va a reregulating authorize dam. To the con cated 431 F.Supp. (D.D.C.1977).2 trary, paragraph indicates the need Judge Kennedy suggests quires Congress in his dissent a as whole authorize dam inquire projects, federally projects. should including into whether “in- funded procedures must, correctly courts, ternal duty they were It is when followed, precedent inquire to the of a enactment law. satisfied Clark, 649, 672, 676-77, v. Field 143 U.S. of 33 401. See States mandate U.S.C. United Arizona, (1892).” 36 L.Ed. 294 We make no L.Ed. inquiry Rather, such in this case. we are con- We therefore do not view duly merely procedure fronted Congress.” with a enacted statute re- an “internal ty reregulation facility of a facility would exam- unclear authorized, Libby To conclude when the main the need arises.’’ ined “when necessity reregulat of such was authorized that a dam if when ing facility was be evaluated necessity would frustrate agree We “the need arises.”3 reregulat- intent to examine the need for such tentative reference district court that expressed in 1165. as ex reregulation cannot be construed reject Corps’ argu- first We therefore plicit authorizatiоn of Control Act ment the Flood that, if argues further even dam, either ex- authorized ex- the Flood Control Act cannot be read plicitly implication. dam, it plicitly a reregulating to authorize

nonetheless the addition of tur- APPROPRIA- B. CONGRESSIONAL bines Because these to the main Dam. AND AUTHORIZATION. TIONS fully additional turbines cannot be utilized a number of occa Congress has on Corps without second the contends specifically for the appropriated funds sions Congress neces- by authorizing that them of the dam.4 construction sarily reregulation the dam appropriations Corps that such are contends implication. to authorization of second equivalent adopt proposition for We decline to this conversely The Rod and Gun Club First, two that reasons. 401 mandates § agreed, that argues, the district court and Congress the consent be obtained before ruling in T. V. A. Supreme the recent Court beginning dam. Assum- construction of a Hill, v. S.Ct. ing arguendo aspects that certain directly that holds L.Ed.2d 117 Libby project specifically referred not be con appropriation of funds should by Congress in the Flood Control Act represent authorization strued ‍​‌‌​‌​​​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‌​‌‌‌​‌‌‍to by implication have been authorized project. they because are effective further buttresses and Gun Club Rod Dam, we functioning Libby of thе main referring court to a argument by this this implied cannot extend authorization such congressional fund cases where number of light requirement a second dam in of the viewed as project of a has not been Congress explicitly that authorize dam implicit that representing authorization projects. Corps present this fails to McElroy, 360 g. e. v. project. Greene See applicable authority court with 3 L.Ed.2d necessity that of a will view dam (1959); of Civic Associa D. C. Federation authorization, allow its a court to infer 125, 128-29, Airis, U.S.App.D.C. v. tions we case feel constrained this to follow F.2d 481-82 the clearer dictates of 401. § cases that these We are not convinced

Second, mili- very language of 1165 necessarily analo- address issues that against implying tates appeal, nor presented this noted, gous to those para- we second dam. As have that they mandate conclusion graph reregula- indicates that need for as appropriations never Congress passed courts can construe tion was uncertain when However, we Act, congressional authorization. necessi- Flood Control and that the $35,000,000 appropriated approximately regard has 3. We note that H.R.Doc.No.531 an contains extended detailed discussion date. However, aspects several Dam. however, project, both includes The LAURD reregulation document’s sole reference to generators of additional installation paragraph main dam por- what indicated dam. The exactly as how much The record unclear $35,000,000 appropriated tion of the $250,000,000 the estimated cost of reregulating dam alone. project appropriated. Coun- LAURD has been Congress argument sel at oral indicated Hill, do conclude that T. V. although projects. A. authorization of dam We find no clearly distinguishable facts, none evidence that containеd in the the remarks theless questions creates serious as to the such reports, committee which asserted that Corps’ claim that the obtained, of funds authorization had been were the project generally should regarded product of a considered review of the issue. as authorization. Id. 437 U.S. at We similarly find no indication that the 190-92, 98 S.Ct. 2279.5 appropriations for the dam Reviewing case, the facts of this we find satisfy were intended to the mandate of no evidence in the record that 401,6and in fact there is some indication intended the for the mistakenly have relied lating regarded dam to the authoriza- upon assertions required by tion or that specifically LAURD been au a whole believed the reregulating appropriated thorized when it funds for the had been authorized. See, g., Water, e. Public Works for Control, Pollution and Power

Admittedly, there is some evidence that Energy Appropria Atomic Commission when Corps approached Congress for tions, Hearings on H.R.No.18127Before the funds for the reregulating dam asserted Committee, Appropriations Senate 91st challenge by without congressional commit- Cong., 2d Sess. 1779 tee members that the dam had been autho- Moreover, rized. report least one expressly reaching general Without Sеnate Committee on Public Works refers as a rule to the reregulating dam as if it had been authorization, constitute we find in this S.Rep.No.93-615, authorized. Cong., 93rd case congressional that authorization 1st Sess. 64 required by under 401 was not conferred hesitant, Atchison, We appropriations Topeka Supreme was the alone. See Hill, Court in T. interpret V. A. v. Railway Callaway, isolat- and Santa Fe Co. v. su ed remarks hearings in committee pra, or re- at 620.

ports expressions of the intent or knowl-

edge C. WATER RESOURCES DEVEL- Congress. THE Hill, T. V. A. v. supra, 191-92, 2279; 437 U.S. at OPMENT ACT. 98 S.Ct. see E.S. Sloan, 103, 121, v.C. 436 U.S. 98 S.Ct. Corps finally argues L.Ed.2d 148 Development Water Resources Act of 1974 We are in generators confronted this case with a authorized the construction of

specific requires congressional dam, statute that and that the (1877), upon by factually 5. analogous The cases relied the dissent to reach to this case. contrary explicitly conclusion involve the appropri- limited issue Neither decision holds context, of land In congressional condemnation. such a ations constitute authorization govern and others have held that when a for dam construction. given congression ment officer has been broad Hill, Supreme 6. In T. V. A. v. Court was acquire public uses, al land showing confronted with a record various statutory procure specific authorization to real specifically committees “may by estate making be evidenced of an opined that continued construction the Telli- specific as well as autho proper notwithstanding co Dam was the En- See, acquire.” g., rization to e. United States v. dangered Species Act. 437 U.S. at Kennedy, (9th 1960); 278 F.2d Cir. S.Ct. 2279. The Court nonetheless held that States, Logging Polson Co. v. United 160 F.2d persuasive such statements were not evidence (9th 1947). Cir. repeal as a whole intended to light decisions, In of more recent we hesitate that Act. Id. at 98 S.Ct. 2279. In this apply these land condemnation cases to the case, has offered no evidence that whеther alone will the various committees ever satisfy requirement consent Thus, considered the authorization we issue. 401. find even less direct evidence than existed T. Similarly, Arizona, neither United States v. appropria- V. A. v. Hill that intended 295 U.S. 79 L.Ed. 1371 equated tions to be with authorization. Duluth, nor Wisconsin v. 24 L.Ed. adequacy by ne- we do not the issue of the ‍​‌‌​‌​​​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‌​‌‌‌​‌‌‍reach lation was therefore cessity. Impact Statement. Environmental Congress for autho- Corps approaches If the Act

The Water Resources Project, may well part: rization of the LAURD provides relevant a new prepare either (a) Secretary find Sec. Engi- Army, through the acting Chief adopted 1974 to update one EIS neers, hereby authorized to undertake developments noted reflect recent stage of phase design memorandum event, environ- court. district design engineering advanced if presented issues when and mental following resources multi-purpose water likely authorized will reregulation dam is development substantially in ac- projects, than substantially turn on facts different with, subject to the condi- cordance here, presented and are best left those Engi- tions recommended Chief of determination. the district court’s in, designat- the reports neers hereinafter . . ed. power fоr installation of III. generating Libby Reregu- facilities at -Dam, River, lating Montana: Kootenai ENJOINING THE DISTRICT COURT’S 93-29, at an Document Numbered Senate THE OF TURBINES OF ADDITION $75,000. estimated cost of DAM TO THE LIBBY added.) (Emphasis

88 Stat. 12-13. addition dispute There that the is no agree We with the Rod Gun Club of four turbines to main only that Act on its face authorizes advance studies, Act design the Flood Control and not was authorized Al- generators for the may not Although such turbines though explicit generators authorization of fully utilized without create a dam would enjoining we feel the court erred strong inference that intended turbines their Because the installation. they were to facility authorize authorized, been the decision have we placed, be do not find that the autho- light in proceed to with their installation only design equally rization studies is reregulation dam is holding our the as to persuasive. Water We conclude that the Congress, not for us. Corps one for the and Act autho- Resources did not impact environmental' We see adverse necessity. the reregulating by rize dam turbines resulting from the addition of the D. CONCLUSION. alone, district and reverse the therefore continued pertains order it to the court’s as

Because has not the dam turbines installation of the by construction and by Congress required been authorized 401, this not court need lоok further Dam. Libby authorized for the main equities by employed district by the Presently pending motions injunction. United States or- earlier Corps of our for'reconsideration Francisco, City County and of San U.S. request stay denying Corps’ der L.Ed. appeal, a motion injunction pending Our conclusion that dam reversal, mo- and a Corps summary for not con- was authorized bars its continued for clarifica- by the Rod and Gun Club tion struction. allowing continued for tion of our order II. Libby Dam. the main expansion on THE ENVIRONMENTAL IMPACT the autho- holding with our Consistent

STATEMENT for re- Corps’ motion question, rization summary reversal are and for consideration light our conclusion that the motion lаting Congress, and Gun Club’s dam not denied. The Rod authorized Arizona, clarification relates to the issue river. whether See United States v. Corps should allowed construct 79 L.Ed. Libby additional turbines in the main not, Corps Engineers may Thus and is opin- addressed Section III of this not, it rely authority proceed does for its ion. upon general some authorization from Con- gress specific project. not addressed to this Corps enjoined The awarding is from con- however, Beyond questions, these the stat- reregulat- tracts for the construction of the provides resolving ute little assistance ing dam until authorization therefor is us, principal confronting issue whiсh is Congress. obtained from approved whether has in fact part part. Reversed in and affirmed in expenditures question. majority deems the word “consent” in the statute to KENNEDY, Judge, dissenting: Circuit “authorization,” mean I and have little ob- principal holding of the court is that jection except to this translation to note Libby of the that it simply question restates the without does not have authorization or consent from answering problem it. The then whether Congress. As agree I can with neither the or not reasoning used to reach that conclusion nor spend funds construction of this majority’s analysis precedents us, legislative Based on the histоry before I case, bearing respectfully dissent. conclude did. outset, At the it should be understood 1978, Congress year Before the fiscal the language of 33 U.S.C. 401 assists specific made several for the resolving matters, us in preliminary certain Reregulating Additional Units but it does not ques answer ultimate project (LAURD), which consists of relevant, tion we face. It is though not construction of the dam and especially helpful, determining power additional units to installed in plaintiffs private not right have Engineers action to main dam.2 challenge expenditures now these proposes let language pursuant unauthorized.1 The contracts to thе is relevant also to agencies $10,000,000 indicate further federal made government, as private well as states year fiscal 1978. That ad entities, must obtain consent dressed aspects of the construction prior to constructing navigable a dam a margin.3 project, as is shown in the question Possibly holding only This difficult addressed the court’s majority. doI plaintiffs standing discuss in detail because plaintiffs’ challenge find bring without merit on other the lawsuit. grounds. Towing Transpor See Star Red passage 2. After of the Flood Control Act of Department Transportation, tation Co. v. 423 1950, Congress appropriated since 1952 has 104, (3d 1970) (no private right F.2d 106 Cir. money prоject every year for the LAURD ex- 401). Hooper action under 33 U.S.C. See also Although unclear, cept 1955-60. is the record States, 1056, F.Supp. v. United 331 1058 specifically the first directed at (D.Conn.1971). By- Cf. Guthrie v. Alabama appears dam to have been Co., F.Supp. (N.D.Ala. Products $400,000 appropriated when for 1971), (5th 1972), aff’d 456 F.2d 1294 Cir. cert. planning denied, 410 U.S. 35 L.Ed.2d Ash, generally See Cort v. L.Ed.2d 26 But involved this case for Morton, year see F.Supp. Sierra Club v. During fiscal Public Works (N.D.Cal.1975). 622-25 Energy Water and Power and Re- Hearings Appropriation search Bill: Before a Alameda Conservation Association Cali fornia, (9th denied, Appropria- Cir.), 437 F.2d Subcommittee of the Committee on сert. tions, Cong. (Feb. 22, 1977), 402 U.S. 908 this circuit 95th 1st Sess. 1762 stated challenge appropriations Corps under 33 U.S.C. 403 was sufficient ‍​‌‌​‌​​​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‌​‌‌‌​‌‌‍were described jurisdiction to “invoke the Id. court.” at as follows: laboring a mistake m majority’s

I little have been under find appropriation, voting since conclusion congressional commit aspects dam construction stated before various dam autho expendi does not constitute consent for tees that majority suggests tures. Flood Control Act.4 rized the 1950 FISCAL requested 1978: o applied amount YEAR will $10,000,000 follows!

AMOUNT $1,200,000 Continuation acquisition land road 1.605.000 Initiate relocation railroad Initiate reservoir clearing acecеs rosds 1.215.000 procurement of multilevel Initiate Intake structures governors 2.200.000 generators Continue procurement turbines 550.000 Continue preservation cultural resources 260.000 Service sanitary Relocate Forest facilities at Canoe Culch 170.000 2,000,000 and Design Engineering Supervision 800.000 administration $10,000,000 TOTAL id. at chart, introduced The recent of the rere- history gulating follow- 1765: provided Hearings a 1977: Before Bill, References to the dam may Appropriation Cong., on Ap- of the Committee found in: No. 93d 1st House Subcommittee S.Rep. (Feb. Cong. (1973); 24, 2d Sess. 64-67 Works Water 94th Sess. Public propriations, 1976); Energy Hearings the Senate Com- Id.: and Power Before Research suppоse majority’s reasoning appropriate any previous is if deems that enactment Congress ambiguous to the had been alerted it finds unwise. authorization, of prior nature the asserted any majority requires, without indi-

it would have passed Congress cation of the standards to which question measure in here. There is no evi- conform, degree of formal au- must some supporting dence as- that conclusion. Even permit agen- it would thorization before an suming procedural that there was a flaw cy implement appropriations. Appropri- to Congress because did not follow the normal ations projects fоr construction such as making course of separate a to declaration conjunction upon LAURD voted project authorize the appropriating before projects. other similar The record in this construction, for its money majority case suggests little or extended gives departing no reason at all for given is of discussion on floor the Con- general rule the courts not gress any particular project. Even a inquire into whether or not the internal aby statement on the floor con- procedures Congress correctly of were fol- gressman appropriations that a vote for on lоwed, precedent to the of enactment a law. particular a is intended to show Clark, 649, 672, 676-77, Field v. 12 authorization, or either in itself as a ratifi- 36 L.Ed. 29 The enact- prior ambiguous cation expressions, ment of a statute is conclusive in courts might majority’s be dismissed under the of regularity legislative issue pro- being opinion view as one legislator ceedings. short, rather will Congress. than the Rule Representa Manual of House of is imagine majority it difficult tives, specifies an appropriations meas has not purports decided ure is out expenditure avoid, of order unless the is namely, appropriations as a previously by authorized pre general law.5 The rule can constitute authorization. remedy scribed for violation of the rule adequate believe that we-can find inde- point raised, that if of order is the bill will pendent expressions congressional intent not be heard. It does not follow that an particular authorize the in the appropriations measure heard out of order express circumstances of this case. The passed objection genuine without is not recognition in congressional approval the expenditure. necessary; express surprised would no doubt be appropriations for additional turbine private learn that party can prevent ex units in the main dam that could not penditure of appropriated federal funds dam; operate without asserting a violation its own internal congressional statements procedures. hearings congress- and reports, circulated great danger No legislation of unchecked they appropriations men before vote on an by appropriation bill, sug- results from what I that LAURD was authorized gest Act; should be this court’s refusal to oversee Flood Control justify adherence to its own rules. work on the fully capable to control the con- conclusion thаt considered duct its remedy members and to proper given. authorization had been Appropriations, (June 1976); Cong., Report mittee on 94th 2d Rec. H6831 Sess. Conference (Feb. 1976); Hearings 7553, Cong.Rec. (July 20, 1977). Id.\ Before the on H.R. H7519 Appropriations, Senate on Committee 94th Cong., (May 1976); Id., 2d Sess. 199 1978: XXI(2) provides part: Rule House Hearings Before a House Subcommittee of the reported No shall be Appropriations, Cong., Committee on 95th 1st bill, general appropriation be in order as 1637, 1761-65; Hearings Sess. Id.: Before the thereto, any expenditure an amendment Appropriations, Senate on Committee 95th law, previously unless in

Cong., 1964-65, 1995-96, 2074-77, 1st Sess. pub- сontinuation for such (March 2, 1977); (May Id. already progress. as are lic works 1977); Report Cong. Conference H.R.

751 Mock, (4th 274 Cir. v. 476 F.2d say to States reluctant I am somewhat While Kennedy, 278 1973); v. United States the always satisfies an 1960); Logging (9 Polson F.2d 121 th Cir. 401, the few cases of section requirements (9th States, 160 F.2d v. United Co. point tend to the which have addressed 1947). Cir. conclusion, they show support that disputed here,6 the and the two appropriations authorize point is in The case it relies seem case. In United States on which expenditures in this cases Ninth Circuit Use, etc., Land, majority’s position. 484 F.2d 1140 Right v. to to undermine 1973), ‍​‌‌​‌​​​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‌​‌‌‌​‌‌‍(4th the issue was Cir. Kennedy, 278 F.2d 121 v. States In United authority to Secretary Army had Sеcretary the Interior (9th 1960), Cir. de A statute property. condemn certain within a national land to condemn sued acquire real Army authority to nied no authorization park. found The court was “ex acquisition property unless the question. in tract applicable to the statute 10 U.S.C. by law.” pressly authorized appropria that the Id. at 122. It then held Appro Army argued that the 2676. The for, among funds supplied tions act January 1971 constitut priations Act of by the lands” “acquisition of things, other ex “for provided since it Service, ed authorization the neces provided National Park lease, . penses necessary for . . sary authorization.7 authorized equipment, as operation of was ad- of 33 U.S.C. Operation officials, testimony before Army law.” Arizona, v. in United States dressed committees, their had stated L.Ed. 1371 requested use some of intention to of Parker the construction At issue was property question. acquire to funds had not authorized Dam, project held, general appropriations The court “[A] monies or basis for condem provides act a sufficient to be financed The dam was manner. other to au Congress intended the act nation if Water District Metropolitan entirely by the 1142. The acquisition.” Id. at thorize The United States California. Southern court reasoned: enjoin of Arizona the State brought suit to Con- information was before Because this with the interfering voted, gress when it we hold that enact- congressional was no court concluded there appropriations bill sufficient- project ment of the and dismissed approval for the intent to au- with ly indicates a In a discussion suit. Government’s case, the court referred Secretary acquire the lease- for this implications thorize the to cited completed project statutory Laguna au- that no additional to hold and proposi- by the necessary. Cf. United Government thorization is Fund, Id. 754-55. 6. Environmental Defense Inс. (E.D.Ark.1971), Engineers, F.Supp. 749 States, Logging v. United In Polson Co. (8th grounds, aff'd other 470 F.2d 289 Cir. 1947), Secretary Agri (9th F.2d Cir. 1972), directly point but is neverthe is proceedings instituted eminent domain culture plaintiffs claims was less relevant. One of the purpose acquire road of a land “for the originally although a dam had been Id. at national forest.” intended to service a authorized, proceeding in excess general Secretary was authorized of, of, that authorization. See and in violation forests, language the national to administer complaint dismissing plaintiffs id. at 754. that “statu The court held U.S.C. 473-482. §§ count, as to this the court stated: tory procure estate real authorization to opinion the sole It is the Court’s appropria making an be evidenced prerogative of the United tion as well as proceed- if the States to determine acquire.” It concluded 160 F.2d at 714. authorization, and, in accordance its expenses general appropriations what, not, anything, if to determine if maintenance, use, improvement it. The wishes to do about question. taking park system bring its attention such matters to means distinguishable in that Perhaps the case is power, through appropriations' and the authority oper Secretary prior general ‘otherwise, problems as it deal with such рarks. ate the deems fit. 752

tion that the was were not congressional Parker Dam also authoriz before committees agreed The independent ed. au which the appropriations ques considered Laguna project thorization of tion. Id. at 79 S.Ct. 1400. D.C. Feder doubtful, stated, “Congress but has made Airis, ation of Civic v. Associations 129 U.S. of project for benefit (1968), is 125, 391 F.2d 478 also App.D.C. part, recognized of which it is a and so inapposite. opinion That held that a only approved building the dam. Wiscon of congressional lump appropriation sum for Duluth, 379, 386, v. sin 96 U.S. 24 L.Ed. highway street and Dis construction explicit recognition 668.” This is an trict Columbia did not аuthorize dis appropriation req may of funds constitute procedural trict to disregard its own re uisite consent construction, quirements planning and a as is Court’s decision Wis requirements entirely consistent with the Duluth, 379, 383-86, v. consin 96 24 U.S. appropriations measure. considera Similar 668 L.Ed. distinguish tions other cases such as Nation majority’s opinion here appears Andrus, Society F.Supp. al Audubon v. 442 large rest in on part misperception (D.D.C.1977) (appropriations bill does not Hill, relevance of TVA v. ratify an otherwise insufficient environ S.Ct. 57 L.Ed.2d 117 There impact statement). mental no project that Tellico authority closely most point casе, expressly issue authorized support the rationale of the court is Atchi by appropriations, and funded and it was Ry. son T. & Callaway, F.Supp. S. F. unnecessary to consider 33 U.S.C. § (D.D.C.1974), grounds, vacated on other The Court that Congress, by held its ex- F.Supp. (D.D.C.1977). it While press authorizations and might possible distinguish Callaway project, funds for the did intend grounds, on narrow language broad repeal implication the clear substantive opinion my does conflict view sec with provisions of other statutes. The case deals above, tion 401. The reasons set forth in relationship with the project authoriza- cluding circuit, the controlling of this law tion the mandates of other federal stat- point against rather conclusively the result utes, not ‍​‌‌​‌​​​‌​‌​​‌​‌​​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‌​‌‌‌​‌‌‍manner in which Con- majority, reached and I would gress declares consent under section follow decision of court in the.district us, In the case argues before one Callaway case. finding of consent under section 401 would that, implication repeal acknowledge perspective, from one provisions of the En- dangered Species arguments favoring Act or the there sound a two- National Envi- reasons, Policy step procedure, ronmental Act. For similar first authorization and then Hill’s discussion of the appropriation, rоle of committee so that can consider hearings reports interpreting justification con- project substantive of a intent, gressional see 437 U.S. at 98 separately from the consequences fiscal bearing has no case. this funding argued it. It that a project passes two-stage proce- McElroy, Greene v. is a expression dure more reliable con- 1400, 3 L.Ed.2d 1377 which is the gressional approval for the entire precedent majority second of the featured hand, On the other it cannot be doubted opinion, is not relevant either. At issue hearings are often the validity was the security of a clearancе framework for a analysis detailed of the program implemented by Defense De- costs of a partment. necessity simply The court held that vari- the wisdom for If peripheral incurring ous those costs. general congres- statutes and sional concludes that security programs should be postponed did not imply approval specific proce- terminated because is no dures, longer needed, it which were of simply doubtful constitution- decide not to ality. Thus, procedures funding. court noted that the continue its is unclear separate gains requiring me what one of con- as a element

sent, per- precedents if this circuit’s even desirable such rule. However

mitted enjoin expendi- the courts to

might be for it thinks appropriated funds where

tures of in the autho- are substantial defects

there impose I such would not

rization process, express

sweeping requirement without an it wants us from

declaration policing this function. undertake majority view or that either

Under dissent, my Congress can

expressed in regard with

further law announce its intent be- project. Conceding

to this one, proper a close I

fore us to be think legislative

respect for the actions requires us to

branch of the Government

permit that it has expenditure the funds appropriated, given all of

specifically in this

circumstances case. majority’s disposition, I

In view of unnecessary to whether or consider

find filed for was in full

not the EIS

compliance requirements Policy Act. For

National Environmental above, expressed

the reasons dissent judgment court. America, Appellee,

UNITED STATES KNOWLES, Appellant. R.

Charles

No. 78-2335. Appeals,

United States Court of

Ninth Circuit.

April

Case Details

Case Name: Libby Rod and Gun Club v. John Poteat

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 15, 1979

Citation: 594 F.2d 742

Docket Number: 78-3297, 78-3307

Court Abbreviation: 9th Cir.