Association of Northwest Steelheaders (northweststeelheaders Council of Trout Unlimited) et al.,plaintiffs-appellants,department of Fisheries et al., Intervenor Plaintiffs-appellants, v. United States Army Corps of Engineers et al., Defendants-appellees,inland Empire Waterways Association, Amicus Curiae.association of Northwest Steelheaders (northweststeelheaders Council of Trout Unlimited) et al., Plaintiffs,department of Fisheries & Department of Game, State Ofwashington, Intervenor Plaintiff-appellant,arthur Solomon, Jr., et al., Intervenor Plaintiffs, v. United States Army Corps of Engineers et al., Defendants-appellees,inland Empire Waterways Association, Amicus Curiae, 485 F.2d 67 (9th Cir. 1973)

Plaintiffs initiated this action seeking to enjoin further dam construction on the lower Snake River¹  and to compel defendants to comply with certain federal laws,²  all of which allegedly imposed on defendants statutory duties which they are allegedly ignoring in the construction of the dams. Shortly after the complaint was filed ten individuals intervened seeking the same relief as the original plaintiffs. The State of Washington, through its Departments of Game and Fisheries, also intervened but sought only a declaration of the duties of the defendants under the provisions of the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq. which deals with the effect of dam construction on fish and wildlife. Amended complaints were filed by both the plaintiffs and the intervenors and the defendants moved to dismiss those complaints on several grounds, among which was the contention that the complaints were actually suits against the United States which is not subject to suit absent its consent, and since no consent had been given, sovereign immunity barred the action. Thereafter, the State of Washington moved for summary judgment. Oral argument on both the motion to dismiss and the motion for summary judgment were heard together.

Citing Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1963), for the proposition that-

"The general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' Land v. Dollar, 330 U.S. 731, 738 [, 67 S. Ct. 1009, 91 L. Ed. 1209] (1947), or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act'."

the trial court found lack of jurisdiction and dismissed the action.

The trial court distinguished the cases cited by the appellants on their facts, finding that the Corps of Engineers was acting pursuant to the direct mandate of Congress while in the appellants' cases the involved agency was given discretionary power and the claims were that this power was being abused.

On appeal appellants assert that all necessary facts have been alleged to bring them within the recognized exceptions to the doctrine of sovereign immunity. As was recognized in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969), when the essence of an appellant's case on the merits requires determination of whether federal officials have exceeded their authority or have exercised that authority in a void manner, the action falls within the exceptions to sovereign immunity. Clearly, the allegations of the appellants require such resolution and, therefore, fall within the exceptions.

However, as the appellee urges, when the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm, the action must fail notwithstanding allegations falling within the recognized exceptions to sovereign immunity. State of Washington v. Udall, supra, at 1318 (interpreting Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 691 n. 11, 69 S. Ct. 1457, 93 L. Ed. 514 (1949).

The trial court's finding of lack of jurisdiction seems premised upon the prayer of plaintiffs-appellants and the individual intervening plaintiffs-appellants for enjoining further construction of Lower Granite Dam. However, the intervening plaintiff-appellant State of Washington requested only a declaration as to the meaning and application of the Fish and Wildlife Coordination Act. Moreover, the trial court's Memorandum Opinion suggests only inferentially that the dismissal of the plaintiffs-appellants and the individual intervening plaintiffs-appellants was based upon a finding that the relief they sought would work an intolerable burden on governmental functions which outweighed any private harm. Such a suggested finding will not support affirmance premised upon Larson and State of Washington v. Udall. Rather, an explicit finding that the relief sought, as alleged, will work an intolerable burden on governmental functions and that such burden outweighs the private harm, as alleged, is required.

In State of Washington v. Udall, this Court reversed the dismissal of the State's complaint which was based upon a finding of sovereign immunity per Dugan, upon balancing the relative equities and burdens as alleged. However, on the record in this case in which, on appeal, the appellee asserts that the environmental impact statement required by the National Environmental Policy Act of 1970, 42 U.S.C. §§ 4321-4347, has been filed and the fish and wildlife mitigation and enhancement plan required by the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq., is being prepared, if not already completed, and in view of requirements of Larson and State of Washington v. Udall, it is appropriate that the case be remanded.

Of course, the dismissal might have been premised upon lack of standing. However, the record refutes that possibility, for assuming that sovereign immunity is no bar to the action, each of the appellants sufficiently set forth allegations that the interests they seek to protect are within the zone interests to be protected by the statutes pursuant to which they seek to bring this action, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), that they, themselves, are among the injured, Sierra Club v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), and that the dispute is presented in an adversary context and in a form historically viewed as capable of judicial resolution, Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Thus, again assuming no sovereign immunity bar, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides a basis upon which appellees' actions may be reviewed. Clearly, no such bar exists as to the intervening plaintiff-appellant State of Washington, and just as clearly the allegations of the plaintiffs-appellants and the individual plaintiffs-appellants fall within the general exceptions to sovereign immunity.

Accordingly, upon remand the trial court should determine whether each prayer of relief sought by the plaintiffs-appellants and the individual plaintiffs-appellants would constitute such an intolerable burden to governmental functions, when weighed against private harm, that dismissal of that prayer and underlying claims is proper. In considering this balance the trial court, in its discretion, may determine that such a finding is more appropriate after resolution of the merits rather than being based on the allegations of the complaint. Additionally, the trial court should determine whether all the appellants' causes of action based upon alleged non-compliance of the National Environmental Policy Act of 1970 and the Fish and Wildlife Coordination Act are moot in view of the appellees' assertions on appeal. Such other action as is necessary should also be taken.

Reversed and remanded for further proceedings in accordance with this opinion.