Case 72

Citizens & Landowners Against the Miles City/New Underwood Powerline v. Secretary, United States Department of Energy, 513 F. Supp. 257 (D.S.D. 1981), aff'd, 683 F.2d 1171 (8th Cir. 1982).

Landowners brought this action to enjoin construction of an electrical transmission line being constructed in part by the Western Area Power Administration (WAPA), an agency of the Department of Energy. Plaintiffs challenged WAPA's environmental impact statement (EIS) under the National Environmental Policy Act and alleged violations of the National Historic Preservation Act (NHPA) and the Archeological Resources Protection Act (ARPA), claiming that the cultural resources investigation done in conjunction with the preparation of the EIS was inadequate.

Without elaborating, the court found that the investigation was adequate and held that plaintiffs had failed to establish any violation of NHPA or ARPA. 513 F. Supp. at 261 n. 5. The court also found the EIS to be adequate. Id.

Finally, the court found that laches would bar plaintiffs' claims. Plaintiffs were aware of the proposed project in 1978 and had attended meetings, had an opportunity to comment on the EIS, and had otherwise been involved in WAPA's administrative process. In 1980, WAPA notified one of the plaintiffs of its construction plans and began unloading construction materials at various sites along the transmission line route. Although plaintiffs filed the lawsuit in early 1981, they sought no injunctive relief until April, when they obtained a temporary restraining order. The court found that thispresented a "clear case of parties sitting on their rights" and that plaintiffs should have attempted to assert their rights long before they did. Moreover, an injunction would cause hardship on defendants. Id. at 264. [Ed. note: The court referred to its earlier findings of fact filed after denial of a preliminary injunction for discussion of the harm to defendants.]

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