Application to stay, pending Court of Appeals' disposition of
appeal, District Court's order denying a permanent injunction to
halt further construction of the Warm Springs Dam, as against the
contention that the environmental impact statement filed in
connection with the Dam did not comply with the National
Environmental Policy Act of 1969, is denied.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants request that I stay an order of the United States
District Court for the Northern District of California pending
disposition of their appeal therefrom by the United States Court of
Appeals for the Ninth Circuit. The District Court's order denied
applicants' request for a permanent injunction to halt further
construction in connection with the Warm Springs Dam-Lake Sonoma
project on Dry and Warm Springs Creeks in Sonoma County, Cal.
(Dam). Applicants also ask that, pending disposition of their
appeal, I enjoin all further construction activity at the site,
except work for the purpose of protecting the soil from effects of
weathering and erosion.
The Dam will be an earthen-filled dam, holding back a reservoir
of water, across Dry Creek, a major tributary of the Russian River
in Sonoma County. It is a multipurpose project designed to provide
flood control, water supply, and recreation. The Dam was first
authorized in the Flood Control Act of 1962, Pub.L. 87-874, 76
Stat. 1173, 1192, and was under construction when the National
Environmental Policy Act of 1969, 42 U.S.C. § 4321
et seq.
(NEPA), became law. An environmental impact statement was filed
prior to the award of a contract for a major segment of the Dam,
and it is the
Page 439 U. S. 1393
adequacy of that statement under NEPA which has been the focus
of this litigation. When built, the Dam will sit atop the Dry Creek
earthquake fault. A second fault is about 1 1/2 miles away, and the
San Andreas fault is 18 miles distant.
Applicants brought an action in the District Court on March 22,
1974, seeking a preliminary injunction to stay further construction
activity with respect to the Dam. During 14 days of hearings on the
motion for a preliminary injunction, applicants raised questions
about the integrity of the Dam should an earthquake occur and
alleged poisoning of the water in the reservoir behind the Dam. On
May 23, 1974, the District Court found that the environmental
impact statement fully complied with NEPA, and denied applicants'
motion for the injunction. Thereafter, the Ninth Circuit denied
applicants' motion for an injunction pending appeal. On June 17,
1974, Mr. Justice Douglas issued an order staying further
disturbance of the soil in connection with the Dam, other than for
research, investigation, planning, and design activity, pending
decision of their appeal by the Court of Appeals.
Warm Springs
Dam Task Force v. Gribble, 417 U. S.
1301.
On August 18, 1975, the Court of Appeals remanded the case to
the District Court to permit it to consider further the adequacy of
the environmental impact statement in the areas of seismicity and
purity of water in the proposed reservoir. The Court of Appeals
continued the existing stay in effect until further action by the
District Court. Although not ordered by the court, the Army Corps
of Engineers prepared and widely circulated a supplement to the
environmental impact statement covering the archaeological aspects
of the Dam and the seismicity and water purity problems. After
holding three days of hearings, the District Court concluded that
all segments of the environmental impact statement fully complied
with NEPA, and denied applicants' motion for a permanent
injunction.
On November 23, 1977, the Court of Appeals expedited
Page 439 U. S. 1394
applicants' appeal of the District Court's order, but denied
applicants' request for interim injunctive relief in an opinion in
which it concluded that applicants had not shown that they would
suffer "significant harm" during the pendency of the expedited
appeal. Oral argument on the appeal was heard on March 13, 1978.
When decision of the appeal was not forthcoming, applicants renewed
their request for a stay on May 8, 1978. A hearing on the motion
was held on May 11, 1978, and, on May 30, the Court of Appeals
again denied applicants' request for interim relief. That same day,
the Corps signed a major construction contract for the Dam.
On October 4, 1978, the Corps opened bids on a new contract for
the construction of a proposed fish hatchery for the Dam. The Corps
intends to let the contract on October 20, 1978. This development
prompted applicants to make the instant request for a stay to me.
They claim that this work will entail extensive expenditures, and
will have a direct impact on the physical environment of the area.
Applicants did not first present their request to the Court of
Appeals.
After considering all of the factors required by our rules and
customary Circuit Justice practice, I have decided to deny
applicants' request for a stay pending disposition of their appeal
by the Ninth Circuit.
Denied.
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