ELR Citation: ELR 20373
No(s). 81-1947 (10th Cir. Mar 14, 1984)

The court rules that the National Environmental Policy Act (NEPA) does not require the Corps of Engineers to prepare an environmental impact statement (EIS) before signing a series of contracts with the city of Tulsa for water storage in the Oologah Reservoir because the storage rights were guaranteed before NEPA was enacted. The court first notes that NEPA is not retroactive and only applies within reason to projects ongoing when NEPA was passed. Also, a court has no power to order an agency to reexamine decisions made prior to NEPA or in compliance with NEPA's procedural requirements. The court holds that all decisions at issue were made before NEPA was enacted. Congress did order some changes in the project after enactment of NEPA, but these were not major federal actions and, as congressional acts, were not subject to NEPA. Finally, the court rules that the Corps' decision not to prepare an EIS is reasonable in light of the facts.

A concurring opinion agrees that the contracts embody decisions predating NEPA and so do not require an EIS. However, the concurring judge would hold that Congress' post-NEPA actions on the project were authorizations that by themselves would not exempt the project from NEPA.

Counsel for Appellants
Martin W. Matzen, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4426

Russell Petit
Office of the Chief Counsel
Army Corps of Engineers, Washington DC 20314
(202) 227-0018

Counsel for Appellees
Andrew T. Dalton Jr.
437 S. Main St., Tulsa OK 74103
(918) 742-0068

James N. Khourie
McDaniel & Meredith
2825 E. Skelly Dr., Suite 826, Tulsa OK 74105
(918) 749-6640

Counsel for Amicus Curiae
Neal E. McNeill, City Attorney; Imogene Harris
200 Civic Center, Tulsa OK 74101
(918) 592-7717

Joined by Timbers,^* J.