Sierra Club v. Morton, 74--1389
| Decision Date | 03 January 1975 |
| Docket Number | No. 74--1389,74--1389 |
| Citation | 509 F.2d 533 |
| Parties | , 5 Envtl. L. Rep. 20,155 SIERRA CLUB et al., Appellants, v. Rogers C. B. MORTON, Secretary of the United States Department of the Interior, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Bruce J. Terris and Suellen T. Keiner, Washington, D.C., for appellants.
Raymond N. Zagone, Edmund B. Clark, Wallace H. Johnson, Jacques B. Gelin, U.S. Dept. of Justice, Washington, D.C., for appellee.
Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
On consideration of appellants' motion for a limited injunction pending appeal, and it appearing from the Secretary's answer to Plaintiffs' Revised Supplemental Interrogatory No. 31 that the Secretary is in the process of approving or disapproving the mining plans and railroad rights-of-way set forth in the Eastern Powder River Coal Basin Environmental Impact Statement and that such an injunction is required to maintain the status quo pending disposition of this appeal, it is Ordered by this court that the aforesaid motion is granted, and it is
Further ordered by this court that the Secretary of the Interior take no action concerning the mining plans and railroad rights-of-way set forth in the Eastern Powder River Coal Basin Environmental Impact Statement pending further order of this court.
Circuit Judge MacKINNON dissents for the reasons set forth in his attached opinion.
In the foregoing order the majority grant appellants' motion for a limited injunction pending appeal and order the Secretary of the Interior to refrain from any action concerning the projects covered by the Eastern Powder River Coal Basin Environmental Impact Statement until further order by this court.
Although the Powder River Statement is attached to the record as an exhibit, the court below was not called upon to rule as to the adequacy of the statement to support the particular federal actions it covers, and therefore that issue is not before this court on appeal. If appellants believe that that particular statement is not sufficient to justify approval of the mining plans and rights-of-way, the proper method for the expression of such concerns is to file an appeal challenging that statement. All of appellants' arguments relating to the necessary scope of impact statements on projects within the region can be raised in a challenge to a particular statement. The appeal presently before this court is not an appropriate vehicle for obtaining de facto review in this circuit of the sufficiency of impact statements covering various federal projects within appellants' 'Northern Great Plains Region.' It obviously is less convenient for appellants to be required to litigate each statement, but the law was not written for the convenience of the Sierra Club and other litigants.
The Powder River Statement is only one of three statements which have been issued on projects within the region. See Supplemental Finding on Remand No. 9a. The adequacy of the statement relating to the Westmoreland mine has been litigated following approval of that application. The Montana District Court held in Redding v. Morton, Civ. No. 74--12--BLG that that statement complies with the requirements of NEPA, and that case is on appeal to the Ninth Circuit. This court obviously cannot enjoin the Ninth Circuit from upholding the Montana District Court and thus allowing the development to proceed. Nor could it enjoin the parties from proceeding with a project approved by another court. The Peabody Coal Company project has also been approved but apparently it has not yet been challenged in court (Supp. Memo of Intervening Defendants-Appellees at 12). If an action is initiated to review the adequacy of the statement covering that project, this court could not prevent another court from entertaining that action. The effect of the proposed injunction, then, is to remove one of the three impact statements from the normal process of judicial review of the adequacy of such statements.
In Scientists Institute for Public Information, Inc. (SIPI) v. AEC, 156 U.S.App.D.C. 395, 411 n.68, 481 F.2d 1079, 1095 n.68 (1973), this court stated:
The decision whether the time is ripe for a NEPA statement on an overall research and development program is a mixed question of law and fact. . . .
With respect to judicial review of such mixed questions of law and fact, the Supreme Court has authorized a practical standard of review, the 'rational basis' test, under which the court will reverse the agency's decision if it has no warrant in the record and no reasonable basis in law.
The agency decision in the instant case is that no federal program currently exists which requires the preparation of a comprehensive impact statement covering appellants' 'Northern Great Plains Region.' An agency decision as to the scope of an impact statement should receive at least as much deference as a decision on the timing of the preparation of a statement. Thus the Department of the Interior's decision not to...
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Sierra Club v. Morton
...the continuance of this injunction are the same as were indicated in my dissent to the original order. See Sierra Club v. Morton, 167 U.S.App.D.C. 756, 509 F.2d 533, 534-36 (1975). I The trial court concluded that appellants' complaint failed to present a justiciable case of controversy the......
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...mining plans in the Powder River Coal Basin, which is one small but coal-rich section of the region that concerns respondents. 166 U.S.App.D.C. 200, 509 F.2d 533. An impact statement had been prepared on these plans, but it had not been before the District Court and was not before the Court......