ELR Citation: ELR 20731
No(s). 89-1233 (D. Idaho Oct 30, 1989)

The court holds that environmental groups are entitled to a preliminary injunction to halt construction of a creek diversion facility until the Bureau of Land Management (BLM) and the Army Corps of Engineers (the Corps) prepare an environmental impact statement (EIS). Plaintiffs raised substantial questions concerning BLM's environmental assessment (EA), including the project's impact on candidate species and wetlands, and its cumulative impact. Plaintiffs also raised a substantial question as to whether construction of the facility may significantly affect the quality of the environment, even with mitigation measures taken to protect the environment. Plaintiffs also raised substantial questions concerning the Corps' failure to prepare an EIS for its issuance of a permit under §404 of the Federal Water Pollution Control Act. The Corps failed to adequately explain how proposed measures would mitigate the impact on candidate species, and its reasons for determining an EIS was unnecessary were inadequate. The court holds that a proposed fish propagation facility is a "concerted action" with the diversion facility and thus should have been considered in the Corps' EA. The court holds that plaintiffs have shown the possibility of irreparable injury. The court refuses to impose a bond on plaintiffs, private citizens, and groups with limited resources, because it would be unreasonable and a denial of judicial review.

Counsel for Plaintiffs
Jeffrey C. Fereday
Givens, Pursley, Webb & Huntley
Park Pl., 277 N. Sixth St., Ste. 200, P.O. Box 2720, Boise ID 83701
(208) 342-6571

Counsel for Defendants
D. Marc Haws
Office of the U.S. Attorney
328 U.S. Courthouse, Box 037, 550 West Fort St., Boise ID 83724
(208) 334-1211

William F. Ringert
Ringert, Clark, Harrington, Reid, Christenson & Kaufman
The Law Center, 599 West Bannock St., Boise ID 83702
(208) 342-4591