ELR Citation: ELR 20607
No(s). 708-70 (10th Cir. Oct 21, 1971)

Appellants' suit to enjoin appellees from storing chemical and biological weapons at the Rocky Mountain Arsenal must fail, because the government is immune to suit. Appellees' actions were clearly within defendants' scope of authority as set forth in the U.S. Constitution and the Military Storage Act, and do not fall within the exceptions set out in Dugan v. Rank to the doctrine of sovereign immunity. The mere suggestion that a government agent may be acting incorrectly does not vitiate that doctrine where his action was within the scope of lawful authority and was performed in a constitutional manner. NEPA's disclosure provisions do not apply to items closely linked to national security. In such matters the discretionary proprietary functions of the national government are broad.

Counsel for Appellants:
Richard D. Lamm
555 Petroleum Building
Denver, CO 80202
(303) 753-2653

Gerash and Kaiser
1700 Broadway
Denver, CO 80202
(303) 222-8574

Counsel for Appellees:
Leonard Schaitman
(202) 739-3321

Morton Hollander
(202) 739-3355
Department of Justice
Washington, DC 20530

James L. Treece U.S. Attorney
L. Patrick Gray, III Assistant U.S. Attorney
U.S. Courthouse
Denver, CO 80203
(303) 837-4184

Before BREITENSTEIN, HILL, and BARRETT, Circuit Judges.