jicarilla Apache Tribe v. Morton
4 ERC 1933
proval by this Circuit in Lathan v. Volpe, 455
ment’s “stake” in the project and thereby
1971), Judge Wright noted the difficulty of
procuring an adequate consideration of environmental factors once a project is underway:
environmental considerations.
F.2d 1181, 1121 [3 ERC 1362] (9th Cir.
Once a facility has been completely con-
structed, the economic cost of any alteration
may be very great. In the language of
NEPA, there is likely to be an ‘irreverstble
and irretrievable commitment of resources,’
which will inevitably restrict the Commission’s options. Either the licensee will have
to undergo a major expense in making alterations in a completed facility or the environmental harm will have tobe tolerated. It
is all too probable that the latter result
would cometo pass. 449 F.2d at 1128.
It follows that in order to insure that federal
agencies do in fact give proper weight to eco-
logical factors in the decision making process,
there must be a severe limitation on the scope
of all activity that furthers the project.) Otherwise, the impact statement may become
merely a “‘progress report’’ filed sometime
prior to the completion of the project. Stop H3 Assoc. v. Volpe, Civ. No. 72-3606 [3 ERC
1684] (D. Haw. decided October 18, 1972).
See Judge Wright’s discussion of the “strict
standard of compliance” mandated bythe procedural provisions of NEPA in Calvert Cliffs’
Coordinating Commuttee, Inc. v. Atomic En-
ergy Commission, supra at 1112-1116.
If the court adopted the rule advanced by
defendants and considered the specific environmental impact of each segment of the
project, much of the force of NEPA would be
undercut. Almost every project can be divided.
into smaller parts, some of which might not *
have any appreciable effect on the environment. The court would be forced to take each
project apart piece by piece, hole by hole and
explosion by explosion. Work allowed to proceed because it does not have a specific environmental impact would increase the govern'S Cases in which similar activity has been en-
joined pending formulation and approval of the en-
vironmental impact statement include: Arhngton
Coaittion On Transportation v. Volpe, [3 ERC
1362] 458 F.2d 1323 [3 ERC 1995] (4th Cir. 1972),
Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971);
Greene County Planning Board v. Federal Power
Commission, 455 F.2d 412 [3 ERC 1595) (2d Cir.
1922); Keith v. Volpe, 4 E.R.C. 1350 (C.D. Cal.
1972); La Raza Unida v. Volpe, 337 F.Supp. 221 [3
ERC 1306} (N.D. Cal. 1971); Ward v. Ackroyd, 4
E.R.C. 1209 (D.Md. 1972); Morthside Tenants
Rights Coalition v. Volpe, 4 E.R.C. 1347 (D. Wise.
1972), Goose Hollow Foothills League v. Romney,
334 F.Supp. 877 [3 ERC 1087] (D. Ore. 1971); En-
vironmental Defense Fund v. Tennessee Valley Authority, 339 F.Supp. 806 {3 ERC 1553] (E.D. Tenn.
1972); Stop H-3 Assoc. v. Volpe, Civ. No. 72-3606
(3 ERC 1684] (D. Haw. decided October 18, 1972).
influence the decision making process whenit
is time to reevaluate the project in light of the
For these reasons the court rejected similar
arguments in the Stop f-3 Assocation case,
supra, and does so again in this case. The test
is whether the primary purpose of the activity
is to further the project which has been enjomed. If so, and defendants are unable to
show any irreparable injurythat will result as
a consequence of not being allowed to go forward, then the activity must. be enjoined.
While this will necessarily result in delay if
the project is eventually approved, “‘[dJelay is
the concomitant of the implementation of the
procedures prescribed by NEPA... .” Greene
County Planning Board v. Federal Power
Commission, 455 F.2d 412, 422 [3 ERC 1595]
(2d Cir. 1972). ‘It is far more consistent with
the purposes of [NEPA] to delay operation at
a stage where real environmental protection
may come about than at a stage where corrective action may be so costly as to be impos-
sible.’ Calvert Cliffs’ Coordinating Com-
multtee, Inc. v. Atomic Energy Commassion,
supra at 1128.
Therefore, this court having found that the
primary purpose of the core drilling and seis-
mic studies is to further the PACE project, and
defendants failing to showanyirreparable injury that will result to them, it is ordered that
these activities be enjoined pendingtrial on the
merits.
This Decision and Order shall constitute
the court’s findings of fact and conclusions ot
law as authorized by Rule 52 of the Federal
Rules of Civil Procedure.
‘
"s,
‘
Sen
.
spe
peocuyte ha “
JICARILLA APACHETRIBEv.
MORTON
U.S. Court of Appeals
Ninth Circuit
THE JICARILLA APACHE TRIBE OF
INDIANS, et al.; NATIONAL WILDLIFE
FEDERATION, and ENVIRONMENTAL
DEFENSE FUND, INC. v. ROGERSC. B.
MORTON,Secretary of the Interior, et al.,
No. 72-1634, January 2, 1973
AIR
1. Federal, state, and local regulation —
Administrative agencies — Proce-
dure before agencies (348.621)
Liability by industry
power ($52.21)
Electric
Department of Interior’s preparation and