APPENDIX 11 DECISION OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF IN THE UNITED STATES DISTRICT COURT FOR THE CIVIL ACTION C-1702 RICHARD L. CROWTHER, WILLARD EAMES, CHARLES MORGAN SMITH, INDIVIDUALLY AND AS PARENT and Next FRIEND OF JAMES HOPKINS SMITH, III, AND James HOPKINS SMITH, III, ON BEHALF OF THEMSELVES AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS บ. DR. GLENN T. SEABORG, CHAIRMAN OF THE ATOMIC ENERGY COMMISSION, AusTRAL OIL COMPANY, AND CER GEONUCLEAR Corporation, Defendants. CIVIL ACTION C-1712 COLORADO OPEN SPACE COORDINATING COUNCIL ON BEHALF OF ALL THOSE ENTITLED TO THE PROTECTION OF THEIR HEALTH AND SAFETY AND THE HEALTH AND SAFETY OF THOSE GENERATIONS YET UNBORN, FROM HAZARDS OF IONIZING RADIATION RESULTING FROM THE DISTRIBUTION OF RADIOACTIVE MATERIALS THROUGH THE PERMANENT BIOGEOCHEMICAL CYCLES OF THE BIOSPHERE AS A RESULT OF THE DEFENDANTS CONDUCT OF PROJECT RULISON, AND ON BEHALF OF ALL THOSE ENTITLED TO THE FULL BENEFIT, USE AND ENJOYMENT OF THE NATIONAL NATURAL RESOURCE DEGRADATION RESULTING FROM CONTAMINATION WITH RADIOACTIVE MATERIAL RELEASED AS A RESULT OF THE DEFENDANTS CONDUCT OF PROJECT RULISON, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS v. DR. GLENN T. SEABORG, CHAIRMAN OF THE ATOMIC ENERGY COMMISSION, AUSTRAL OIL COMPANY, INCORPORATED AND CER GEONUCLEAR CORPORATION, DEFEND ANTS. CIVIL ACTION C-1722 MARTIN G. DUMONT, DISTRICT ATTORNEY FOR NINTH JUDICIAL DISTRICT, PLAINTIFF. v. DR. GLENN T. SEABORG, CHAIRMAN OF THE ATOMIC ENERGY COMMISSION, CLAUDE HAYWARD, AUSTRAL OIL COMPANY, INCORPORATED AND CER GEONUCLEAR CORPORATION, DEFENDANTS. Mr. Robert Bruce Miller, Attorney at Law, 3216 Arapahoe, Suite D, Boulder, Colorado, for Plaintiffs Richard L. Crowther, Willard Eames, Charles Morgan Smith, individually and as Parent and Next Friend of James Hopkins Smith, III, and James Hopkins Smith, III. Mr. Victor J. Yannacone, Attorney at Law, 39 Baker Street, Patchogue, New York, and Mr. Richard D. Lamm and Mr. Thomas W. Lamm, Attorneys at Law, 555 Petroleum Club Building, Denver, Colorado, for Plaintiff Colorado Open Space Coordinating Council. Mr. Richard D. Lamm, Special Prosecutor for Plaintiff Martin G. Dumont, District Attorney, Ninth Judicial District. Mr. James L. Treece, United States Attorney, United States Court House, Denver, Colorado, appearing for Government Defendants. Mr. Carl Eardley, Attorney at Law, Department of Justice, Washington, D.C., for Defendant Glenn T. Seaborg. Mr. Thomas Fleming, Chief Counsel, Atomic Energy Commission, Las Vegas, Nevada, and Marcus Rowden, Office of the General Counsel, Atomic Energy Commission, Washington, D.C., for Defendants Atomic Energy Commission and Glenn T. Seaborg. Mr. James D. Voorhees and Mr. John R. Moran, Attorneys at Law, 818 Patterson Building, Denver, Colorado, and Mr. John M. Berlinger, Attorney at Law, 120 East Flamingo Road, Las Vegas, Nevada, for Defendant CER Geonuclear Corporation. Mr. James D. Voorhees and Mr. John R. Moran, Attorneys at Law, Denver, Colorado, and Mr. David T. Searls and Mr. John Murchison, Attorneys at Law, First National City Bank Building, Houston, Texas, for Defendant Austral Oil Company. Introduction MEMORANDUM OPINION AND ORDER ARRAJ, CHIEF JUDGE Project Rulison Project Rulison is a joint experiment sponsored by the Atomic Energy Commission (AEC), the Department of Interior and Austral Oil Company, Inc., (Austral). The program manager is CER Geonuclear Corporation (CER). Rulison is a part of the Plowshare Program of the AEC, which is designed to develop peaceful use of nuclear explosive technology. The specific purpose of the project is to study the economic and technical feasibility of nuclear stimulation of the low permeability gas bearing Mesaverde sandstone formation in the Rulison Field of Colorado. "Nuclear stimulation" is the detonation of a nuclear device in the formation which will create a cavity and attendant fracture system that will stimulate the production of natural gas from the formation. The Mesaverde formation, because of its low permeability, does not produce natural gas in commercial quantities, although it does contain a significant gas reserve. The nuclear device was detonated at a depth of 8,431 feet at the Rulison site near Rulison, Colorado, on September 10, 1969. Prior to this detonation all three of the lawsuits dealing with the project had been filed and hearings held at which the various plaintiffs sought a preliminary injunction to halt the detonation. This Court denied the preliminary injunctions and the denials were sustained by the Tenth Circuit Court of Appeals, 415 F. 2d 437 (10th Cir. 1969) and No. 453-69. All these cases, Civil Actions C-1702, C-1712 and C-1722, are against essentially the same defendants, and this coupled with the identity of the subject matter rendered consolidation of the cases feasible. At the trial of the consolidated cases the plaintiffs sought a permanent injunction against the defendants to prohibit the planned flaring of the gas contained within the cavity created by the nuclear detonation. These plans will be discussed in detail below, but the general purpose of the proposed flaring is to determine the extent of stimulation of production, the dimensions and configuration of the cavity and fracture system, and the technical and economic feasibility of the entire project. Identity of Parties The plaintiffs in Civil Action C-1702 are: (1) Charles Morgan Smith, a resident of Colorado who owns property approximately seven miles from the Project Rulison site; (2) James Hopkins Smith, III, the son of the plaintiff Charles Morgan Smith, who occasionally accompanies his father to the property referred to above; (3) Richard L. Crowther, a resident of Colorado who owns real estate approximately thirty miles from Project Rulison; and (4) Willard Eames, a resident of Colorado who owns property approximately three and one-half miles from the Project Rulison site. The defendants in Civil Action C-1702 are: (1) Dr. Glenn T. Seaborg, Chairman of the AEC; (2) Austral Oil Company, Inc., a Delaware corporation licensed to do business in Colorado; and (3) CER Geonuclear Corporation, a Delware corporation licensed to do business in Colorado. The plaintiff in Civil Action C-1712 is the Colorado Open Space Coordinating Council, Inc., (COSCC). COSCC is a non profit, public benefit corporation organized and existing under the laws of Colorado. COSCC purports to bring suit as a class action on behalf of all those persons entitled to the protection of their health, and on behalf of all those entitled to the full benefit, use and enjoyment of the natural resources of the State of Colorado. The defendants in Civil Action C-1712 are: (1) Dr. Seaborg; (2) Austral; and (3) CER. The Plaintiff in Civil Action C-1722 is Martin G. Dumont, District Attorney for the Ninth Judicial District of the State of Colorado, on behalf of the people of the State. The defendants in Civil Action C-1722 are: (1) Dr. Seaborg, substituted for defendant Atomic Energy Commission by stipulation of October 8, 1969; (2) Austral; (3) CER; and (4) Claude Hayward, the owner of the property on which the Rulison detonation occurred. Issues presented The parties were unable to agree upon the wording of the factual issues in the submitted pretrial order. Our review of the evidence presented at trial, the numerous pleadings, and the briefs of the parties filed leads to the conclusion that the following outlined issues of fact and law satisfactorily delineate the areas of contention among the parties. These issues as set out will govern the order of disposition of the three suits in this opinion. Issues of Law Because the defendants reserved certain issues relating to the jurisdiction of the Court, these will be disposed of first. The first four issues of law may be considered the jurisdictional issues presented. 1. Do the plaintiffs have standing to sue? 2. Is there a justiciable controversy entitling plaintiffs to declaratory relief? 3. Are the plaintiffs' actions unconsented suits against the United States? 4. Are the plaintiffs seeking review of and an injunction against discretionary acts of the AEC which are not subject to judicial review? 5. Is the AEC following its Congressional mandate and its own rules and regulations in that the actions and plans for protecting health and minimizing danger to life and property are a reasonable exercise of its statutory authority? 6. Are the plaintiffs entitled to an order directing the AEC to answer all questions and to turn over to the plaintiffs all information regarding Project Rulison? Issues of Fact The ultimate issue of fact presented by these cases is whether the proposed flaring of gas from the Rulison cavity will endanger life, health and property of the plaintiffs or any others similarly situated, in contravention of the mandate of the Atomic Energy Act. In determining this issue, five subsidiary issues have been raised by the parties and must be disposed of. These are: 1. Do the Rulison plans make reasonably adequate provision for the protection of the health and safety of human, plant and animal life? 2. Are these plans for flaring within the radiation protection standards of the AEC and the Federal Radiation Council (FRC)? 3. Are the defendants prepared and equipped to actually implement the plans for flaring, thus insuring the protection of health and safety? 4. Are there safe economical alternatives to the proposed flaring as a means of determining the effectiveness of the Rulison detonation? 5. Are the FRC and AEC radiation protection standards themselves reasonably adequate to protect life, health and property? 1. Standing Issues of Law Contrary to the assertion of defendant Seaborg in his brief filed August 25, 1969 that Flast v. Cohen, 392 U.S. 83 (1968) is not pertinent to the issues presented by the complaint in this case, the Court believes that Flast is more pertinent than Frothingham v. Mellon, 262 U.S. 447 (1923) (relied upon by the defendant). Flast should be the starting point of an analysis of the issue of standing. Although both Flast and Frothingham deal with the specific problem of a taxpayer's standing to challenge federal spending, Flast is the most recent comprehensive discussion by the Supreme Court of the general problem of standing. The Frothingham line of cases holds that a plaintiff must allege that he suffers a direct injury to some legally protected interest in order to have standing. The defendants argue that the plaintiffs have failed to satisfy the standing requirement because their claims are predicated upon their residency in Colorado alone. The plaintiffs' status as citizens subjects them to the hazards complained of, but defendants contend that because they are in no different position from other citizens who may be subjected to the pollution claimed, they have no standing to sue. The essence of the argument is that the plaintiffs fail to assert substantial injury to their own legally protected interest. A clarification of the concept of standing is found in the Flast opinion prior to the discussion of the specific problem of taxpayer standing. Then Chief Justice Warren stated that the "case" or "controversy" requirement of Article III embodies two limitations on the federal judiciary. One is the requirement of an adversary context before the courts will act and the other is the separation of powers among the three coordinate branches of the federal government. He noted that "justiciability" is the term of art utilized to express this dual limitation and that there are various grounds on which questions have been held not to be justiciable in the federal courts. Standing to sue is one of these grounds. The Flast analysis of standing reveals that the doctrine primarily implements the requirement of an adversary context for the operation of the federal judiciary in the resolution of a dispute. In order to insure the adversary context, a determination of standing initially focuses on the party rather than on the issues presented. Thus, if the party alleges a personal stake in the outcome of the controversy which will insure sufficient adverseness to adequately present the issues, resolution of the dispute will not be impeded because the case is hypothetical or an abstraction. If the personal interest is found to be sufficient, the next step is to look at the substantive issue presented to determine whether a logical nexus exists between the status asserted and the claim. 393 U.S. at 102. This nexus appears to us to be the connection between the official action challenged and a legally protected interest required in Jenkins v. McKeithen, 395 U.S. 411 (1969), quoted in defendant Seaborg's brief. In other words, we believe that the standing doctrine requires that these plaintiffs first show a satisfactory interest entitled to legal protection and then show that this particular interest is in some way threatened with sufficient logical directness by the action of defendants to insure that there will in fact be presented to the Court a concrete controversy by adverse interests. Under this test, it is clear that all of the plaintiffs in Civil Action C-1702 have standing to challenge the action of defendant Seaborg as Chairman of the AEC. Charles Morgan Smith, Crowther and Eames have alleged the ownership of property in the proximity of the Project Rulison site, and each has alleged occasional residence on his property. It is alleged that James Hopkins Smith accompanies his father to the property owned by the elder Smith. These allegations have not been contradicted by defendant Seaborg nor any other defendants. These plaintiffs allege that the Project and the planned flaring of gas will add sufficient amount of radioactive particles to the atmosphere to create a direct threat to their health, welfare and safety. These allegations constitute a substantial assertion of a personal stake in the controversy. Plaintiffs assert that they are so situated that the contemplated action of defendants in flaring presents a threat to their health and safety. We need cite no authority for the proposition that the law protects the interest of persons in their health and safety. We also think that the logical connection between the "status" of plaintiffs as property owners, and occasional residents in the proximity of the Rulison site, and the "threat" to their health and safety affords a sufficient basis for an actual controversy. Any distinction between the standing of the plaintiffs in C-1702 and the plaintiff in C-1712 must be based upon the fact that the latter, COSCC, is a public benefit corporation bringing a class action on behalf of all persons entitled to the protection of their health and the use and enjoyment of the natural resources of Colorado. We find no significant problem presented by the fact that plaintiff COSCC is a corporate entity seeking to assert the interests of its incorporators and the public for whose benefit it was formed. In the specific area of civil rights, the Supreme Court has recognized the standing of the N.A.A.C.P. to assert on behalf of its members their legally protected rights. N.A.A.C.P. v. Button, 371 US. 415 (1963); N.A.A.C.P. v. Alabama, 357 U.S. 449, 459 (1958). Other cases have likewise held in several areas that responsible and representative groups have standing to assert the public interest. Scenic Hudson Reservation Conf. v. Federal Power Commission, 354 F.2d 608, 614 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966); Office of Communications of the United Church of Christ v. Federal Communications Commission, 359 F.2d 994, 1005 (D.C. Cir. 1966); Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir. 1967), cert. denied, 390 U.S. 921 (1968). Furthermore, there is another rationale available for sustaining the assertion of standing of the plaintiffs in both C-1702 and C-1712. The Administrative Procedure Act (APA) provides for judicial review of agency action. The statutory provision for the right of review is 5 U.S.C.A. § 702: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. In determining whether the APA does provide for judicial review of Project Rulison at the instance of these plaintiffs, several questions must be answered. First, is this a suit against Dr. Seaborg, or is it in fact one against an agency of the federal government, the AEC? Second, if this is a suit against the AEC, does 5 U.S.C.A. § 702 apply to the AEC under the Atomic Energy Act? Third, if in fact § 702 does apply to the AEC, is the challenged project "agency action"? Fourth, are the plaintiffs in Civil Actions C-1702 and C-1712 persons "adversely affected" or "aggrieved"? Fifth, are the plaintiffs persons adversely affected or aggrieved within the meaning of a relevant statute? The initial question of whether the suit filed against Dr. Seaborg, Chairman of the Atomic Energy Commission, is one against Dr. Seaborg, the AEC, or the United States is one of the most troublesome presented by the case. The answer to this question goes not only to whether the APA is applicable, but also goes to the question of sovereign immunity. Ignoring for the present time the issue of immunity, it is helpful to consider why the action is so captioned. Plaintiffs claim that Dr. Seaborg, in his official capacity as Chairman of the AEC, is operating beyond the limits of his statutory authority. They seek to enjoin him from so acting. The AEC as such is not acting, but rather its executive officer is acting through his subordinates. In order to effectively terminate this alleged action beyond the scope of authority, the judicial action sought must be directed against the acting party. There are numerous cases dealing with the issue of sovereign immunity that hold that a suit against a public officer is in fact a suit against the government if the relief sought will operate against the government, e.g., Larson v. Domestic & Foreign Corporation, 337 U.S. 682, 687 (1949). Thus, a nebulous characterization has often been utilized to denominate one action to be against the officer, another against the sovereign. Of course, the characterization depends upon the factual setting of the case, and in many, if not most, the distinction is clear. In a case such as that presented here, however, the clarity is diminished by conceptual problems. Here the plaintiffs seek to enjoin Glenn Seaborg from acting in his capacity as Chairman of the AEC. The action they wish to enjoin is the culmination of activity by the agency he directs, the AEC, over a period of several years in the planning and execution of Project Rulison. The reality is that this is the action of the agency, in common language, which plaintiffs would have this Court stop. The further reality is that this agency of the federal government is acting for that government. However, the problem of who is sued apparently has not troubled the Supreme Court in the two most recent and most significant cases dealing with the review provisions of the APA. Neither Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), nor Rusk v. Cort, 369 U.S. 367 (1962), concerned themselves with the question we have here posed. Both held that the review provisions of the APA were applicable in suits which denominated the agency head as party defendant. Therefore, we find that with respect to the applicability of the APA, it is unnecessary to fully answer the first question, since the answer seems to be that this is a suit against all three entities. We also find that the APA is applicable to suits which denominate Glenn Seaborg as Chairman of the AEC the party defendant, if all other conditions precedent are satisfied. In determining whether 5 U.S.C.A. § 702 applies to the AEC under the Atomic Energy Act, the starting point for analysis is 5 U.S.C.A. § 559. Section 559 states that the judicial review provisions of the APA cannot be superseded or modified by subsequent legislation except to the extent that such subsequent legislation does so expressly. The Atomic Energy Act does not expressly supersede the APA, but rather makes it expressly applicable to all AEC "agency action," and expressly modifies the APA with two provisos. 42 U.S.C.A. § 2231 states that the APA is applicable to all AEC "agency action," with the proviso that in actions involving restricted data or defense information the AEC shall provide for procedures which parallel those of the APA, in order to effectively safeguard or prevent disclosure. The other proviso is 42 U.S.C.A. § 2239 which expressly modifies the provisions of the APA with respect to procedures for the licensing |