Friends of the Earth v. Armstrong/Dissent Lewis

LEWIS, Chief Judge, with whom HILL, Circuit Judge, joins, dissenting:

This case brings to the court the necessity of considering several aspects of the continuing controversy between two ideologies, each desirable when viewed in isolation but necessarily clashing in practical application. In particular, the subject matter of the case involves whether the national welfare is best served by maximum conservation and industrial utility of the waters of the Colorado River or whether the national interest requires a modified use so as to protect the natural environment of the area designated as the Rainbow Bridge National Monument. So stated, the issue is a classic one for congressional consideration and not for judicial determination. And since I firmly believe that the posture of the case itself does not bring the controversy within the orbit of judicial concern, I must dissent. A majority of the court is, however, in agreement that Congress has already performed its full function and has clearly indicated that the present national interest requires maximum potential industrial use of the water of Lake Powell as contained back of the Glen Canyon Dam. To reach this result the majority must and does hold that sections 1 and 3 of the Colorado River Storage Act of 1956 (43 U.S.C. § 620, et seq., Public Law 485, 84 Cong.2d Sess.) have been repealed by implication or so modified as to be impotent under the express wording of the statutes as they still exist in the law. But however viewed I consider the action of the majority to be a deep trespass upon the prerogatives of Congress and a clear and dangerous violation of the doctrine of separation of powers.

Section 1 of the cited Act provides:

"That as part of the Glen Canyon Unit the Secretary of the Interior shall take adequate protective measures to preclude impairment of the Rainbow Bridge National Monument."

This section makes specific reference to the Rainbow Bridge National Monument but, as the main opinion recognizes, is completely severable in context from section 3, later discussed. However the majority places considerable emphasis upon the repeated refusal of Congress to provide funds for the Secretary of the Interior to implement section 1 as a supporting argument that section 3 has been repealed by implication. I do not agree. Congress authorizes many projects which die aborning from lack of funding or are not immediately implemented by funding. It is not for the courts to deny the validity of the statutory authorization simply from lack of funding. And that is particularly true in the case at bar. As pointed out in the main opinion, funding under section 1 has been specifically negated as to Rainbow Bridge Monument, to me a clear expression of Congress' recognition that section 1 is viable. The majority appears to recognize this in part and would seem to take some of the language contained in the appropriation acts as authority for holding that it is the present intent of Congress to protect only Rainbow Bridge and not the surrounding Monument area. In any event the decision breathes new life into protecting the Bridge proper and designates an allowable depth under the Bridge of fifty-five feet of water as the maximum to be tolerated, retaining jurisdiction for ten years apparently as guardian of the Bridge proper. Perhaps current events have persuaded the majority to impose this restriction. This year's run-off is extremely high and is now in progress. The capacity of Lake Powell has been or soon will be attained through the Glen Canyon Dam reaching its holding capacity. Water is now beneath the Bridge and is expected to reach a depth of forty-eight feet as estimated and the unexpected may occur. The protective order of the main opinion is understandable to me. But such extraordinary judicial action is without [p14]  precedent and invades the legislative and administrative fields of authority. It is not for this court to say that the Bridge proper is to be protected from the waters of Lake Powell but that the Rainbow Bridge National Monument should not be so protected. Nor should this court volunteer to police the control of Lake Powell waters for a period of ten years or any other period for any purpose whatsoever, absent the necessity of using the injunctive power to enforce an act of Congress and then only under the most extraordinary circumstances. And I consider my views in this regard to be not only applicable to section 1 of the Act but also clearly applicable to section 3. 43 U.S.C. § 620b provides in pertinent part:

"It is the intention of Congress that no dam or reservoir constructed under the authorization of this chapter shall be within any national park or monument."

This mandate from Congress is not limited in any way to the problem at Rainbow Bridge. The statute is not ambiguous and, indeed, it is seldom that Congress deems it necessary to so specifically spell out its intention. The legislative history of the Colorado Storage Act indicates that the inclusion of section 3 was necessary to assure its enactment. Congressman Aspinall (Colo.), then a leading proponent of the Storage Act, in reporting the amended project bill, said "And may I here and now advise the committee that the sponsors of the legislation promise and agree with the Members of the House that they shall keep their agreement with the conservationists of the Nation in this particular." Mr. Aspinall commented further on this "agreement" as follows:

". . . We have entered into an agreement with the conservationists to the effect that we would not trespass upon any national park or national monument area in the construction of projects authorized under the provisions of this bill. I mention this because of a colloquy relative to the position of the Sierra Club. Since that time, I have talked to Mr. Brower, the Director of the Club, and he has assured me within the last 20 minutes that their opposition is withdrawn provided we place and keep within this bill the provisions that we will not trespass upon the national park or national monument areas."

Ultimately the Conference Report of the two Houses stated:

"The matter of retaining intact our national park system was an important issue in the consideration by Congress of this legislation. The House approved bill -- (1) deleting the Echo Park Storage unit, (2) requiring 'protective measures to preclude impairment of the Rainbow Bridge National Monument' and (3) expressing [p15] the 'intention of Congress that no dam or reservoir constructed under the authorization of this act shall be within any national park or monument,' . . . makes clear the intention of the House that there be no invasion or impairment of the national park system by the works authorized to be constructed under this legislation. The conference committee upheld the House position and adopted the House-approved language."

We start then with an original congressional mandate, not expressly repealed by any subsequent Congress, that no reservoir shall be within any national monument and the undisputed fact that the Rainbow Bridge National Monument is now flooded even under the Bridge and with the judicial sanction of repeal by implication. To me, the judicial words "repealed by implication", by very definition, carry heavy overtones of erosion into the doctrine of separation of powers. So, too, the chosen words contained in the main opinion "reversal of a previous position" describe an equally dangerous judicial aggression.

Congress has not failed to amend or repeal the subject legislation through inadvertence. Eight different bills have been presented to the United States Congress during the past thirteen years in an attempt to amend the limiting language found in sections 1 and 3 of the Act. Senator Moss has introduced six bills, all identical in nature, to amend section 3 by deleting "it is the intention of Congress that no dam or reservoir constructed under the authorization of the Act shall be within any national park or monument." Senator Bennett and Representative McKay of Utah have each introduced a bill attempting to repeal the limiting language found in the Act. None of these bills has been reported out of committee, evidencing a lack of broad-based support for their passage in the Congress.

Furthermore, the very fact that these Congressmen felt it necessary to introduce amending legislation indicates, at least on their part, no assurance that Congress has in any manner repealed the sections in question. Quite to the contrary, remarks of both Senator Bennett and Senator Moss contained in the Congressional Record manifest a belief that direct repeal is necessary.

In Georgia v. Pennsylvania R.R., 324 U.S. 439, 65 S.C.t. 716, 89 L. Ed. 1051, the Supreme Court was presented with the question of whether the Sherman Act was impliedly repealed with respect to those carriers under the jurisdiction of the I.C.C. by the Interstate Commerce Act. The Court, in rejecting the implied repeal argument, noted that one factor in its decision was the fact that there had been congressional proposals to confer immunity on interstate carriers from the anti-trust laws, but these proposals had not been adopted. The Court stated: "Twice Congress has been tendered proposals to legalize rate-fixing combinations. But it has not adopted them. In view of this history we can only conclude that they have no immunity from the anti-trust laws." The same [p16]  types of explicit, unsuccessful attempts to legislatively repeal section 3 of the Colorado River Storage Project Act are present in this case.

The Supreme Court has consistently stated that judicial interpretation is disfavored as a means of establishing a repeal of legislation. In one case only has repeal by implication been upheld. Mathews v. U.S., 123 U.S. 182, 8 S.C.t. 80, 31 L. Ed. 127. Such implied repeal has been rejected in a multitude of cases. ''See Universal Interpretive Shuttle Corp. v. Washington Metro. Area Transit Commission'', 393 U.S. 186, 89 S.C.t. 354, 21 L. Ed. 2d 334; Jones v. Mayer Co., 392 U.S. 409, 88 S.C.t. 2186, 20 L. Ed. 2d 1189; Amell v. United States, 384 U.S. 158, 86 S.C.t. 1384, 16 L. Ed. 2d 445; United States v. Welden, 377 U.S. 95, 84 S.C.t. 1082, 12 L. Ed. 2d 152; United States v. Zacks, 375 U.S. 59, 84 S.C.t. 178, 11 L. Ed. 2d 128; United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 83 S.C.t. 1715, 10 L. Ed. 2d 915; Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.C.t. 1246, 10 L. Ed. 2d 389; Mercantile Nat'l Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.C.t. 520, 9 L. Ed. 2d 523; Bulova Watch Co. v. United States, 365 U.S. 753, 81 S.C.t. 864, 6 L. Ed. 2d 72; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.C.t. 787, 1 L. Ed. 2d 786; Rosenberg v. United States, 346 U.S. 273, 73 S.C.t. 1152, 97 L. Ed. 1607; F.T.C. v. A.P.W. Paper Co., 328 U.S. 193, 66 S.C.t. 932, 90 L. Ed. 1165; United States v. Borden Co., 308 U.S. 188, 60 S.C.t. 182, 84 L. Ed. 181; Posadas v. Nat'l City Bank, 296 U.S. 497, 56 S.C.t. 349, 80 L. Ed. 351; United States v. Noce, 268 U.S. 613, 45 S.C.t. 610, 69 L. Ed. 1116; United States v. Greathouse, 166 U.S. 601, 17 S.C.t. 701, 41 L. Ed. 1130; Wood v. United States, 41 U.S. 342, 10 L. Ed. 987. United States v. Dickerson, 310 U.S. 554, 60 S.C.t. 1034, 84 L. Ed. 1356, and other cases cited in the main opinion, can give no comfort to the result reached by the majority. Any arguable impact flowing from Dickerson must be limited to section 1 of the Storage Act and cannot premise an implied repeal of section 3. Section 3 is self-sustaining and needs no supplement by appropriation or otherwise for its continued vitality.

In simple summation the court has done that which the Congress has many times refused to do and has, to all practical effect, enacted legislation which is actually pending before Congress for its consideration. Such judicial action is unprecedented and while the decision may be heralded by some as a good pragmatic solution to a difficult and controversial problem this is not a judicial prerogative. Current events in other unrelated fields indicate that more problems are created than solved by a softening of the basic concept of a firm and strict application of the doctrine of separation of powers.

I would affirm.