National Forest Preservation Group v. Butz

• Decision Date: 10 September 1973
• Docket Number: No. 72-1998.,72-1998.
• Citation: 485 F.2d 408
• Parties: NATIONAL FOREST PRESERVATION GROUP, a Montana nonprofit corporation and Lester C. Baldwin, Appellants, v. Earl L. BUTZ, Individually and as Secretary of Agriculture, et al., Appellees, and Big Sky of Montana, Inc., and Burlington Northern, Inc., Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

485 F.2d 408 (1973)

NATIONAL FOREST PRESERVATION GROUP, a Montana nonprofit corporation and Lester C. Baldwin, Appellants, v. Earl L. BUTZ, Individually and as Secretary of Agriculture, et al., Appellees, and Big Sky of Montana, Inc., and Burlington Northern, Inc., Intervening Defendants-Appellees.

No. 72-1998.

United States Court of Appeals, Ninth Circuit.

September 10, 1973.

COPYRIGHT MATERIAL OMITTED

James H. Goetz (argued), Bozeman, Mont., for appellants.

Eva R. Datz (argued), Kent Frizzell, Asst. Atty. Gen., Land & Natural Resources Div., Dept. of Justice, Washington, D. C., Otis Packwood, U. S. Atty., Billings, Mont., R. E. Murray, Asst. U. S. Atty., Butte, Mont., Gerald Fish, Jacques B. Gelin, Dept. of Justice, Washington, D. C., for appellees.

Richard V. Wicka, Asst. Gen. Counsel (argued), Burlington Northern Railroad, St. Paul, Minn., Cale Crowley (argued), Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., Kendrick Smith, Corette, Smith & Dean, Butte, Mont., for intervening defendants-appellees.

Before DUNIWAY and GOODWIN, Circuit Judges, and WOLLENBERG,^* District Judge.

ALFRED T. GOODWIN, Circuit Judge:

National Forest Preservation Group (NFPG) challenges on procedural and substantive grounds the decision of the Forest Service to exchange certain government land for lands of the intervenor, Burlington Northern.

The lands are in southwest Montana. The United States agreed, in three separate transactions, to exchange lands within the Gallatin National Forest for lands within and adjacent to the Forest and within Yellowstone National Park. A part of the lands being acquired by Burlington Northern are to be used by Big Sky of Montana, Inc., in a proposed recreational development in the area. Two of the exchanges are challenged in this appeal. We will refer to them as Exchange No. 2 and Exchange No. 3.

NFPG asserts that the exchanges are void because the Forest Service did not comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and with the Wilderness Act, 16 U.S.C. §§ 38, 1131, 1132, and that the exchanges exceed the statutory authority of the Forest Service.

Three preliminary issues are raised by the intervenors and the Justice Department.

I. STANDING

Burlington Northern urges that plaintiffs have no standing to bring this action. The plaintiffs have brought themselves within Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), by alleging that they are recreational users of the lands in question. Burlington Northern attempts to distinguish Sierra Club by arguing that there will be no net loss of forest acreage in this case and that NFPG's "selfish interest in preference in specially selected sections of land" is insufficient to confer standing. The Supreme Court indicated in Sierra Club, however, that precisely such intangible, subjective interests are sufficient to confer standing. 405 U.S. at 734, 92 S.Ct. 1361. The plaintiffs have standing.

II. MOOTNESS

The district court, 343 F.Supp. 696, granted the defendants summary judgment on May 23, 1972, and that same day refused NFPG's request for an injunction pending appeal. Two days later, the government issued patents to the land to Burlington Northern. Immediately upon recording the patents, Burlington Northern conveyed to Big Sky certain of the contested tracts.

Under various legal headings, Burlington Northern (but not the Justice Department) urges that the speedy patent and sale of the lands from one party to the litigation to another during the pendency of the appeal placed the legality of the transfers beyond the jurisdiction of this court. Nonsense.

"* * * After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective of the merits as they may be ultimately decided * * *." Jones v. SEC, 298 U.S. 1, 17, 56 S.Ct. 654, 658, 80 L.Ed. 1015 (1936).

Porter v. Lee, 328 U.S. 246, 66 S.Ct. 1096, 90 L.Ed. 1199 (1946). See Griffin v. County School Board, 363 F.2d 206 (4th Cir.) (en banc) (school board held in civil contempt for disbursing money to private school pending appeal of judgment denying injunction against disbursement), cert. denied, 385 U.S. 960, 87 S.Ct. 395, 17 L.Ed.2d 305 (1966).

III. REVIEWABILITY — AGENCY DISCRETION

The defendants argue that the Secretary of Agriculture has broad discretion to decide whether to enter into a land exchange, and that all aspects of such exchanges are "committed to agency discretion" and therefore unreviewable under Administrative Procedure Act § 10 (a), 5 U.S.C. § 701(a). The second proposition, however, by no means follows from the first.

Although the basic decision whether or not to enter into an exchange may be nonreviewable, Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 451, 27 L.Ed. 2d 440 (1971), judicial review may be available on specific questions. East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971). See Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv. L.Rev. 367 (1968).

In this case NFPG contends that the agency did not comply with specific statutory limitations on its authority. There is clearly "law to apply" on the issues raised, and thus the allegations are reviewable. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

IV. THE ISSUES

Three purported issues are raised by NFPG: compliance with the Wilderness Act, 16 U.S.C. §§ 1131, 1132; compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.; compliance with the statutes and regulations authorizing the exchanges. The Wilderness Act was not raised by NFPG in its administrative appeals; hence, we decline to consider it here. United States v. Consolidated Mines & Smelting Co., 455 F.2d 432, 438-439, 453 (9th Cir. 1971).

NFPG argues both that there has been noncompliance with specific requirements of the National Environmental Policy Act of 1969 and that the environmental-impact statements prepared were generally insufficient. Defendants, on the other hand, "doubt" whether any statement was required at all, apparently on the theory that the mere shuffling of titles could have no significant impact on the environment.

V. NEPA STATEMENT

We do not "doubt" that NEPA applies to this massive land exchange. While the federal defendants are not themselves planning to take action "significantly affecting the quality of the human environment," 42 U.S.C. § 4332 (C), the private defendants plan such action, and the exchange is an act without which such action could not be taken. The land exchange is thus analogous to the licensing of or granting of federal funds to a nonfederal entity to enable it to act. Such federal "enablement" has consistently been held to be subject to NEPA. Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972); Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App.D.C. 5, 458 F.2d 827 (1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Greene County Planning Board v. Federal Power Comm., 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Nor would compliance with NEPA be excused by the ignorance of the federal authorities prior to the exchange of the plans the private party may have for the land he will receive. The short answer is that Congress has imposed an affirmative duty on the federal party to the exchange to receive assurances of the plans of the private developer prior to the exchange. See Public Land Law Review Comm'n, One Third of the Nation's Land 266-67 (1970).

The NEPA statement on these exchanges was not prepared until after the decision of the Regional Forester approving the exchanges. When the decision of the Regional Forester was appealed, the Chief Forester refused to review the decision until an adequate environmental statement had been prepared. A statement was prepared and thereafter accompanied the proposed exchange through all levels of administrative consideration. Normally, an impact statement must be prepared prior to the initial decision to commit resources. 42 U.S.C. § 4332(B); Calvert Cliffs Coordinating Comm., Inc. v. Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971).

Although proper timing was not followed in this case, we decline to remand on this ground. While the Regional Forester did not prepare a formal environmental-impact statement, his written explanation of his decision to those who had expressed concern about the exchange shows that he did consider environmental factors. When the lack of a NEPA statement was called to the attention of the Chief Forester, he ordered one prepared. There has been no prejudicial failure to comply with NEPA, and the sterile exercise of having the Regional Forester consider the impact statement on an exchange which has already been approved by all levels of the administrative hierarchy would serve no useful purpose. See Calvert Cliffs Coordinating Comm. Inc. v. Atomic Energy Comm., 449 F.2d 1120.

The second specific deficiency NFPG urges on us is the failure of the NEPA statement to contain written comments from the Administrator of the Environmental Protection Agency (required by § 309 of the Clean Air Act, 42 U.S.C. § 1857h-7). However, the statement was duly submitted to the E.P.A. The Forest Service should not be penalized because the Administrator had nothing to say.

NFPG also attacks generally the sufficiency and completeness of the statement. However, although the statement, like most of its fellows, can be improved by hindsight and sophisticated editing, we believe that the statement satisfied the intent of the statute. Environmental Defense Fund v. Corps of...