ELR Citation: ELR 20535
No(s). CV-R-76-152-GJS (D. Nev. Oct 4, 1982)

The court rules that the Secretary of the Interior's present operation of the Stampede Dam and Reservoir project primarily for the benefit of two species of endangered fish is within the Secretary's discretion. The court had previously ruled that any waters from the project except those necessary to fulfill Indian trust and endangered species obligations must be offered for sale to the plaintiffs. The court first rules that the Endangered Species Act requires the Secretary to give restoration of the endangered species priority over all other uses of the water until the species are no longer listed as endangered or threatened. The court rules that it may only narrowly review the Secretary's determination of the amount of water needed for the fish, and that substantial evidence supports the Secretary's current plan of water use. Plaintiffs' proposed alternate plan would not meet the obligations of the Endangered Species Act. Plaintiffs have failed to prove an abuse of discretion. The court declines to decide the extent of the Secretary's trust obligations to the Pyramid Lake Paiute Indians, an this issue is being litigated in a separate case and is not essential to the resolution of the dispute before the court. The court also does not reach the issues of whether the Secretary would have to prepare an environmental impact statement before selling water to plaintiffs or whether the plaintiffs may claim water rights as subsequent appropriators.

Counsel for Plaintiffs
John M. Collette, Andrew J. Ogilvie
Collette & Erickson
43d Floor, 555 California St., San Francisco CA 94104
(415) 788-4646

John Madariaga, General Counsel; Susan L. Oldham
Sierra Pacific Power Co.
100 E. Moana Lane, Reno NV 89502
(702) 789-4011

Larry D. Struve, Harry W. Swainston; Richard H. Bryan, Attorney General
Heroes Memorial Bldg., Carson City NV 89710
(702) 885-4170

Counsel for Defendants
Shirley A. Smith, Ass't U.S. Attorney
300 Booth St., Reno NV 89509
(702) 784-5439

Dale T. White
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2056

Brenda Washington
Office of the Solicitor
Department of the Interior, Washington DC 20240
(202) 343-4036

Counsel for Defendant-Intervenor
Robert S. Pelcyger
Native American Rights Fund
1506 Broadway, Boulder CO 80302
(303) 447-8760

Michael R. Thorp
Eisenhower, Carlson, Newlands, Reha, Henriot & Quinn
Suite 1200, First Interstate Plaza, Tacoma WA 98402
(206) 572-4500