13 ELR 20540 | Environmental Law Reporter | copyright © 1983 | All rights reserved

Citizens and Landowners Against the Miles City/New Underwood Powerline v. Secretary, United States Department of Energy

Nos. 81-1554; -1728 (683 F.2d 1171) (8th Cir. July 16, 1982)

ELR Digest

The Eighth Circuit rules that appellants' complaint that construction of an electrical transmission line violates the National Environmental Policy Act, the National Historic Preservation Act, and the Archaeological Resources Protection Act is barred by laches, and that the Department of Energy is not required under the Federal Land Policy and Management Act (FLPMA) or the Department of Energy Organization Act to obtain a state siting permit.

First, the court holds that although laches is not favored in environmental cases, it is justified here because appellants unreasonably delayed in bringing suit thereby prejudicing appellees. The evidence establishes that plaintiffs were aware of the proposed route three years before suit and had knowledge of its exact location at least a year and a half before filing their complaint. The court rules that although the government raised hopes that a final decision had not been made, appellants were not justified in relying on these representations because they had knowledge that the government had taken definitive steps to acquire rights to the land. Further, the court holds, the government would be substantially prejudiced if it were required to prepare a new environmental impact statement and ultimately reroute the corridor. Shutdown and rerouting of the already operating transmission line would cause power shortages and be costly to electric utility consumers.

The court also holds that because no federal statute evinces a "clear and unambiguous" congressional intent to require the Western Area Power Association (WAPA), an agency of the Department of Energy, to comply with South Dakota siting law, the Supremacy Clause renders compliance unnecessary. The court holds that while § 505 of FLPMA does require certain right-of-way permits obtained by WAPA to be consistent with state health and environmental standards, it does not require WAPA to satisfy state permit procedures. Also, the court holds that § 103 of the Energy Organization Act does not require WAPA compliance with the state siting law. The construction of electric transmission lines is not an activity exclusively within the jurisdiction of the state, as required for federal compliance with state energy plans under § 103. Finally, the court rejects the South Dakota Public Utility Commission's argument that WAPA must obtain a state permit because the state procedural and substantive requirements are inseparable. Only Congress, and not the states, can require federal agency compliance with state laws.

The full text of this opinion is available from ELR (12 pp. $2.00, ELR Order No. C-1307).

Counsel for Appellants
Walter Washington, Ass't Attorney General
Public Utilities Commission
Dep't of Commerce, Capitol Bldg., Pierre SD 57501
(601) 773-3201

Roberta Jean Earley
206 Ponderosa Dr., Spearfish SD 57783
(605) 642-7556

Counsel for Appellees
Ted L. McBride, Ass't U.S. Attorney
P.O. Box 2893, Rapid City SD 57701
(605) 342-7822

Marvin D. Truhe, Gene Lebrun
Lynn, Jackson, Shultz & Lebrun
P.O. Box 8110, Rapid City SD 57701
(605) 342-2592

Heaney, J.


13 ELR 20540 | Environmental Law Reporter | copyright © 1983 | All rights reserved