of production and utilization facilities, procedures for dealing with licensees, and procedures for dealing with patents under the Act. Review of proceedings under § 2239 is by a United States Court of Appeals pursuant to 28 U.S.C.A. § 2342.

42 U.S.C.A. § 2231 provides that the term "agency action" for the purposes of review of the AEC shall have the meaning specified in the APA. Thus, having answered the second questioned posed in the affirmative, finding that the APA does apply to the AEC, we must determine if the action challenged is "agency action" within the APA. The statutory definition is found in 5 U.S.C.A. § 551 (13) : "'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."

Definition of the terms "rule", "order", "license", "sanction" and "relief” are also found in § 551. None of these forms of "agency action" except "order" has application to this case. § 551 (6) states: "'order' means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing ;". Our research has indicated no case law directly interpreting these APA definitions. In the absence of such case law, we must make the initial determination of whether the activities of the defendants challenged here constitute "agency action" within the terms of the statute. This determination is probably the key one in disposing of standing under the APA. SI

The planning and execution of the various steps in Project Rulison have been carried out either directly by the employees of the AEC or under the supervision and control of the employees of the AEC. The affidavit of October 14, 1969 of Mr. John S. Kelly, Director of the Division of Peaceful Nuclear Explosives, states that his Division has the responsibility for developing and administering research, revelopment and engneering programs and policies for utilizing nuclear explosives for peaceful purposes (Plowshare Program); approving initiation and implementation of specific projects under the Plowshare Program; giving program direction to Atomic Energy Commission laboratories and operations offices with respect to the Plowshare Program; and assuring in carrying out the above functions and responsibilities that adequate provision is made for the health and safety of Government and contractor personnel and of the general public. Project Rulison, which is part of the Plowshare Program, falls within the above responsibility.

His affidavit contains further statements indicating that the flaring of the gas will be under the control of the Nevada Operations Office of the AEC, and that it will be within the radiation health standards of the AEC. Also, the testimony of Mr. Robert H. Thalgott establishes that he, as an AEC employee and Assistant Manager for Operations of the Nevada Operations Office of the AEC, is responsible for all nuclear safety of Project Rulison. Further evidence of the AEC role in Project Rulison is found in the numerous AEC publications now a part of this record, which need not be here detailed.

The Rulison activities of defendants Austral and CER also are under the direction and control of the AEC.

We thus conclude that all decisions involved in the Rulison Project relative to the safety of the flaring of the gas from the chimney are those of the AEC. We further determine that the activity of the AEC in the making of decisions and execution of the plans for Rulison is an agency "order" or the equivalent thereof, since it constitutes a "final disposition * of an agency in a matter other than licensing. *" Thus, what plaintiffs seek to enjoin is "agency action" within the meaning of the APA and Atomic Energy Act.

We find no problem in holding that plaintiffs in Civil Action C-1702 are persons "adversely affected" or "aggrieved" within the meaning of 5 U.S.C.A. § 702. As previously noted, they have alleged that they are property owners and occasional residents of the area in proximity to the Rulison site. Thus, if in fact the AEC does violate the statutory standards and permits a release that creates a radiological health hazard, they will be adversely affected. The adverse effect will be the allegedly irreparable injury to their health from the agency action.

In attempting to answer the fourth question posed with respect to the plaintiff in Civil Action C-1712, the answer to the fifth question is inextricably intertwined in the case law. In determining that COSCC has standing under the principles of Flast, cases were cited holding that responsible and representative groups have standing to assert the public interest. These cases were

all against administrative agencies and are relevant to standing under the APA. Scenic Hudson Preservation Conf. v. Federal Power Commission, supra, is the initial decision of significance holding that organizations and others, who by their conduct exhibit a special interest in areas which an agency is directed by statute to take into consideration, are "aggrieved” parties when the agency fails to consider such matters. The Court there held that the Scenic Hudson Preservation Conference was such an organization, was "aggrieved" by the failure of the Federal Power Commission to consider conservation values as directed by the Federal Power Act in licensing a dam site, and had standing to seek judicial review of the FPC decision.

Similarly, Office of Communications of the United Church of Christ v. Federal Communications Commission, supra, held that a representative of the listening public is a person "affected" or "aggreived" within the Federal Communications Act. Thus, such organization has standing to intervene in a license renewal proceeding. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 320, 933 (2d Cir. 1968), dealt with a suit by the Norwalk, Connecticut Chapter of the Congress of Racial Equality, two tenant associations and eight individuals representing low-income Negro and Puerto Ricans displaced by an urban renewal project against the project. Plaintiffs claimed the project did not attempt to assure relocation for Negro and Puerto Rican displacees to the same extent as white displacees, thus violating statutory provision for relocation. One of the holdings of the Court was that the standing of a person depends upon whether they are adversely affected or aggrieved, and this in turn depends upon whether the Congressional purpose in enacting the statute was their protection.

Finally, Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650, 661 (S.D.N.Y. 1967), an action challenging the determination of the Federal Highway Administrator of a proposed highway route, held, in discussing Scenic Hudson, that "aggrieved" has the same meaning under the APA as under the Federal Power Act. Thus, the Court found that local civic organizations and conservation groups are "aggrieved" by agency action which has disregarded their interests, and that they have standing to obtain judicial review under the APA.

We therefore find that COSCC, as a public benefit corporation asserting the interests of all those persons entitled to the protection of their health and all those persons entitled to the full benefit, use and enjoyment of the natural resources of the State of Colorado, is adversely affected or aggrieved, if in fact the AEC is obligated by the Atomic Energy Act to consider the interests asserted by COSCC in its representative capacity.

The final determination in analyzing standing under the APA is whether these plaintiffs are adversely affected or aggrieved "within the meaning of the relevant statute", the Atomic Energy Act. If the Act directs the AEC to consider the health and welfare of the plaintiffs, then they will be, in our opinion, within the meaning of the relevant statute. If it was the intent of Congress in passing the Act to protect the health of the class of which plaintiffs are members, then when they allege disregard of that interest, they are persons allegedly aggrieved or adversely affected within the meaning of the statute and have standing to sue. See The Congressional Intent To Protect Test: A Judicial Lowering of the Standing Barrier, 41 U. Colo. L. Rev. 96 (1969).

The following quotes from the Atomic Energy Act, we believe, conclusively show that the AEC is charged by Congress with the duty of considering the interests asserted by plaintiffs in C-1702 and C-1712.

42 U.S.C.A. § 2012.-Congressional Findings:

(d) The processing and utilization of source, byproduct, and special nuclear material must be regulated in the national interest and in order to provide for the common defense and security and to protect the health and safety of the public.

(e) Source and special nuclear material, production facilities, and utilization facilities are affected with the public interest, and regulation by the United States of the production and utilization of atomic energy and of facilities used in connection therewith is necessary in the national interest to assure the common defense and security and to protect the health and safety of the public.

(i) In order to protect the public and to encourage the development of the atomic energy industry, in the interest of the general welfare and of the common defense and security, the United States may make funds available for a portion of the damages suffered by the public from nuclear in

cidents, and may limit the liability of those persons liable for such losses. 42 U.S.C.A. § 2013.-Purpose of Chapter:

It is the purpose of this chapter to effectuate the policies set forth above by providing for

(d) a program to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public;

42 U.S.C.A. § 2051.--Research assistance; fields covered; conditions:

(a) The Commission is directed to exercise its powers in such manner as to insure the continued conduct of research and development and training activities in the fields specified below...

(4) utilization of special nuclear material, atomic energy, and radioactive material and processes entailed in the utilization or production of atomic energy or such material for all other purposes, including industrial uses, the generation of usable energy, and the demonstration of the practical value of utilization or production facilities for industrial or commercial purposes;

(d) The arrangements made pursuant to this section shall contain such provisions (1) to protect health, (2) to minimize danger to life or property, and (3) to require the reporting and to permit the inspection of work performed thereunder, as the Commission may determine.

(Emphasis added in all quoted provisions.)

We thus conclude that the interests asserted by the individual parties plaintiff in C-1702 and by the institutional party plaintiff in C-1712 are personal interests protected by the language of the relevant statute. We conclude that these parties have standing under the APA and the Atomic Energy Act to challenge the actions of the AEC which allegedly disregard the Congressional directive to protect the public health and safety.

We would note that in fact it is immaterial in this particular case whether the plaintiffs in C-1702 and C-1712 assert standing in the general equitable jurisdiction of the Court or under the APA. We are also of the opinion that our interpretation of the APA's applicability to the alleged disregard by the AEC of statutory standards is dictated by the language of the Supreme Court in Abbott Laboratories:

The Administrative Procedure Act provides specifically not only for review of "[a]gency action made reviewable by statute" but also for review of "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act's "generous review provisions" must be given a "hospitable" interpretation. Again in Rusk v. Cort, supra, at 379-380, the Court held that only upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review. (citations and footnotes omitted). 387 U.S. 140-41.

Accord, Association of Data Processing Service Organizations, Inc., v. Camp. 38 · L.W. 4193 (March 3, 1970); Barlow v. Collins, 38 L.W. 4195 (March 3, 1970). In determining whether plaintiff Martin Dumont in Civil Action C-1722 has standing to sue, the discussion above is pertinent. He must assert a personal interest entitled to legal protection and show that the interest is threatened with logical directness by the action of defendants. If he cannot do this, since he does not claim standing under the APA, he does not have standing.

Plaintiff Dumont's complaint alleges three counts, which for the sake of brevity we will summarize as embodying a claim of trespass, a claim that the AEC and other defendants have not stayed within the authority granted by the Atomic Energy Act, and a claim that the defendants will create a nuisance. By stipulation of the parties in C-1722, the rulings and findings of the Court at the hearing for a preliminary injunction in C-1702 and C-1712 were made a part of C-1722. The rulings at that hearing are dispositive of Dumont's claim on both trespass and nuisance. The ruling at page 3 of the Rulings is that the Rulison activity is specifically authorized by the federal government and therefore cannot constitute a nuisance in a legal sense. This disposes of the nuisance claim. With respect to the trespass claim, it is in essence one which, after the detonation, is moot. Any actual damage to property caused by the blast is past and

42-051 0-70-pt. 2 41

cannot be enjoined. Also, since such damage to property in the plaintiff's judicial district is compensable, there is an adequate remedy at law, and thus the claim does not give plaintiff standing in this Court to seek an injunction.

Finally, plaintiff's allegation that defendants are exceeding the statutory guidelines does not contain sufficient allegations of his own personal stake in the controversy to establish his standing. He alleges nothing more than his position as district attorney. He does not allege that he owns property in proximity to the Rulison site, nor does he allege an interest in conservation or the protection of the public health (other than as criminal prosecutor) as does COSCC. Thus, Dumont has failed to establish that he is a party whose interest is adequate to present a justiciable controversy sufficient to provide the adversary setting necessary for the operation of the judicial machinery. Since Dumont has failed to establish his standing, the Court cannot permit a party to appear and prosecute as district attorney alone, riding, as it were, on the coattails of the plaintiffs who have established their standing. Therefore, Civil Action C-1722 must be dismissed for lack of standing.

2. Justiciable controversy

The discussion in Flast, supra, of the concept of justiciability is dispositive of the assertion of defendants that there exists no justiciable controversy. “Justiciability" embodies two limitations, one the necessity of an adversary context, and the other the concept of separation of powers among coordinate branches of the federal government. Our discussion of standing under the Flast rationale or under the APA establishes to our satisfaction that from the perspective of adverseness, a justiciable controversy is presented.

With respect to the concept of separation of powers, we believe there can be little contention that the governmental philosophy embodied in the Constitution ties separation of powers into a union with the concept of checks and balances which cannot be severed. Thus, concomitant with separation of powers is judicial review. Marbury v. Madison, 1 Cranch 137 (1803).

Defendants' assertion at the initial stages of the proceedings that the detonation was authorized by Congress and the President is presumably the basis of the reservation of the issue of justiciability, if such issue is reserved, to claim that a political question is presented. However, at the trial issues were more focused, and the principal question presented was the flaring, and whether such action was planned with due regard to public health and safety. This question as presented was framed in the context of an allegation that the executive officer of a federal agency was acting in excess of the authority granted to him by statute. Such a question is not a political question. It has long been a part of equity jurisdiction and has been specifically assigned to the Courts for resolution by the Congress through the APA. Thus, we hold that the doctrine of separation of powers does not apply to bar this Court's determination of the issues presented, and a justiciable question is presented.

3. Unconsented Suit

This issue embodies the defendants' claim of sovereign immunity. Sovereign immunity is a concept which has been widely discussed in the case law, without much consistency, and in a manner which a legal realist would label as rationalization. The controlling case, however, supplies standards which can be applied to the infinite variety of potential factual situations with some rationality, if the application is done with appropriate restrain on rationalization.

Duggan v. Rank, 372 U.S. 609, 619-23 (1963), outlines the law of sovereign immunity. The rule is that a suit is against the sovereign and barred by the doctrine of sovereign immunity if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting or compel it to act. 372 U.S. at 620. There are two exceptions to the general rule. A suit is not barred by sovereign immunity if (1) it alleges that the actions of the officers challenged are beyond their statutory authority, or (2) it alleges that although acting within the scope of their authority, the powers exercised. or the manner in which they are exercised, are constitutionally void.

Application of the rule and its exceptions to these cases is relatively simple, based upon the considerations discussed at length in our treatment of the threshold issue of standing. The rule does not apply because the allegations of the complaints in C-1702 and C-1712 stand squarely within the first exception.

Plaintiffs claim that defendant Seaborg as Chairman of the AEC is acting, through his agency and his contractors, Austral and CER, beyond the scope of his statutory authority. They allege that he is acting without due regard to the statutory directives, outlined above, that he give appropriate consideration to the public health and safety, when conducting activities such as Project Rulison.

This allegation is sufficient to bring the first exception noted in Duggan v. Rank, supra, into play, and we thus hold that the doctrine of sovereign immunity does not bar the suits of the plaintiffs in C-1702 and C-1712. 4. Scope of Review

Defendants admit in their brief filed February 17, 1970 that the scope of review in this action is delineated by the APA, whether standing for review is available under the APA or the general equity jurisdiction of the Court. The APA did not change the existing law of review, according to defendants, and the governing provision is found in 5 U.S.C.A. § 706:

Scope of Review. To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

In this case plaintiffs assert and defendants do not seem to contest the fact that the Atomic Energy Act directs the AEC to conduct its activities in such a manner as to protect the public health and safety. The specific provision authorizing the activity in the nature of the Rulison Project is 42 U.S.C.A. § 2051. That provision authorizes research assistance by the AEC, and in subsection (d) states:

The arrangements made pursuant to this section shall contain such provisions (1) to protect health, (2) to minimize danger to life or property, and (3) to require the reporting and to permit the inspection of work performed thereunder, as the Commission may determine. (Emphasis added) Defendants urge, however, that the phrase "as the Commission may determine" places the nature of the arrangements within the agency discretion. The Court agrees with this construction of the statutory language. We note, however, that provision for health and safety is mandatory, since the language is "shall contain". Thus, the statute requires provision for health and safety, but the exact nature of the arrangements is lodged in the discretion of the AEC.

The APA dictates that this Court limit its review to whether the safety and health arrangements of the AEC for the Project Rulison flaring constitute an abuse of discretion. The question of abuse of discretion must itself be narrowed, and in making such evaluation full consideration will be given to the fact that the AEC possesses an extraordinary amount of experience and expertise in the area of atomic energy and atomic radiation. However, we note that the AEC is almost exclusively in the possession of the experience and expertise in these areas. Thus, there is clearly a necessity for review to insure that the AEC discretion does not become a citadel impregnable to challenge by the concerned public, to insure that it is not so exercised as to fail to satisfy the standard established by law, that is, the protection of public health and safety. We hold that plaintiffs do not seek review of discretionary acts immune from judicial review.

5. 18 Rulison Flaring-Within statutory authority

Determination of the fifth issue of law is dependent upon the determination of the factual issue presented, and the subsidiary factual issues. The fifth legal issue will therefore be dealt with later in this opinion.

6. Order to supply information

This issue as put forward by plaintiffs is wholly without merit. Plaintiffs have furnished no authority for the proposition that the AEC must answer for all of its activity to any inquiring member of the public. The AEC is answerable to the Joint Committee on Atomic Energy of the Congress, and this Committee