Friends of the Earth v. Armstrong/Concurrence Doyle

WILLIAM E. DOYLE, Circuit Judge, (concurring).

I concur fully in the statements and conclusions of Judge Seth in the majority opinion and would add this very brief personal supplement to it.

The element which argues most strongly in favor of Judge Seth's opinion is the fact that the dam and reservoir which are a part of an interrelated system of dams and reservoirs along the Colorado go back many years. They commenced with the Colorado River Compact in 1923. During the entire period Congress has been aware of the problems. Since construction started in 1953, the problem of water encroachment or invasion of the Rainbow Bridge Monument area has been specifically considered, and Congress has repeatedly refused to take protective measures. This was with full knowledge that use of the dam would necessarily result in encroachment of the water.

The full use of the dam to the level of 3,700 feet is essential to the generating of electricity and to the full beneficial use of the water by the upper basin states.

How then in the face of all of this evidence could Congress have intended that the Monument area be free of water when to give such an interpretation renders the dam and reservoir system of limited use?

It is to be emphasized that Rainbow Bridge is not in peril, and we will cross that bridge if and when that problem arises. Plaintiffs do not contend that the Bridge will even get wet. Their objection is to the presence of water in Bridge Creek which is in the gorge in the center of the Monument area -- far from the Bridge. We are not unsympathetic to their concern because the water makes the area more accessible and [p13]  interferes with full aesthetic enjoyment of the Monument area. That fact does not, of course, empower us to grant the relief. We must follow the law.