527 F.2d 786 (9th Cir. 1975), 74--1984, Cady v. Morton

Docket Nº:74--1984.
Citation:527 F.2d 786
Party Name:Bruce M. and Dorothy V. CADY et al., Appellants, v. Rogers C. B. MORTON, Secretary of the Department of Interior, et al., Appellees.
Case Date:June 19, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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527 F.2d 786 (9th Cir. 1975)

Bruce M. and Dorothy V. CADY et al., Appellants,


Rogers C. B. MORTON, Secretary of the Department of

Interior, et al., Appellees.

No. 74--1984.

United States Court of Appeals, Ninth Circuit

June 19, 1975

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Bruce J. Terris (argued), Washington, D.C., for appellants.

Otis Packwood, U.S. Atty. (argued), Billings, Mont., George J. Miller (argued), Philadelphia, Pa., Daniel H. Israel (argued), Boulder, Colo., for appellees.


Before VAN OOSTERHOUT, [*] BROWNING and SNEED, Circuit Judges.

SNEED, Circuit Judge:

This is an appeal from an action which sought a declaratory judgment that certain coal leases entered into between Westmoreland Resources and the Crow Tribe of Indians and approved by the Bureau of Indian Affairs (BIA) of the Department of the Interior were invalid and which further sought to enjoin strip mining operations thereunder. Plaintiffs (appellants herein) were individuals living on the 'Crow Ceded Area' in Montana and Friends of the Earth. Defendants were the Crow Tribe of Indians, Westmoreland Resources, Secretary of the Interior, the Commissioner of the BIA, the Superintendent of the Crow Agency of the BIA, the Director of the United States Geological Survey (USGS), and the Area Mining Supervisor of the Conservation Division of the USGS.

The land involved in the present controversy is within the Crow Ceded Area, which was originally part of the Crow reservation but which was ceded back to the United States under a 1904 agreement. The lands were opened to homesteaders in 1909, but only surface interests could be acquired by homestead. Certain of the original individual plaintiff-appellants are successors in interest to persons who obtained title through homestead to portions of the Crow Ceded Area.

In 1970, as part of a program to develop coal reserves in the Crow Ceded Area, the Crow Tribe granted two prospecting permits, including options to lease, to Westmoreland. The latter exercised the options in June, 1972 and by means of two agreements--covering 16,130.53 acres and 14,745.92 acres respectively--leased the coal rights in the entire 30,876.45 acres there designated for a term of ten years and as long thereafter as coal is produced in paying quantities. At this time the BIA, which had approved the permits and the leases, had prepared no environmental impact statement (EIS) or other environmental analysis.

On June 15, 1972, the day after the leases were approved, Westmoreland entered into contracts with four midwestern utility companies to supply some 77,000,000 tons of coal over a twenty-year period, to begin July 1, 1974. In November, 1972 Westmoreland filed an application with the USGS for approval of a mining plan covering operations for five years on some 770 acres of the leased land. The surface of this area has been acquired by Westmoreland, while most of the remaining acreage is owned by others, including appellants herein. 1 Upon obtaining consent from

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the USGS to engage in pre-mining activities, Westmoreland began construction of surface facilities required for coal mining.

The BIA issued a draft EIS in October, 1973, and public hearings were held the following month. The final EIS--which was addressed only to the initial mining plan--was submitted to the Council on Environmental Quality in January, 1974, and this action was filed the following month.

The plaintiffs' complaint sets forth four claims. With respect to the plaintiffs' first, third, and fourth claims the court below denied the plaintiffs' request for a preliminary injunction and granted defendants' motion for summary judgment. Following a later hearing, the court also denied relief on plaintiffs' second claim and entered judgment thereon in favor of defendants. We reverse as to the first and second claims, remand to the district court for entry of an order which pertains to the subject matter of the first and second claims and is described more fully at the close of this opinion, and affirm as to the third and fourth claims. A more specific description of these claims is as follows:

Plaintiffs in their first claim contended that the prospecting permits and coal leases were invalid in that their approval in the absence of an EIS violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The trial court held that this claim was subject to summary judgment because (1) the approval of the prospecting permits did not constitute 'major federal actions' within the meaning of NEPA, 42 U.S.C. § 4332(C); (2) NEPA was not intended to be applied retroactively, so that the Tenth Circuit decision in Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), reversing the court below and holding that an EIS was required for leases on Indian lands, should not invalidate the leases here, particularly where the defendants had relied on the district court opinion in their actions; and (3) the federal defendants had issued an EIS and therefore have complied with NEPA; and (4) plaintiffs were barred by laches.

Plaintiffs in their second claim asserted that the final EIS was inadequate, not only in content but in scope, since Westmoreland had contract commitments for coal deliveries spanning twenty years and had leased 30,876 acres of land, whereas the EIS dealt only with a mining plan which covered but five years and 770 acres. The court, in ordering that judgment be entered in favor of defendants, held (1) that the final EIS met all the requirements of NEPA;

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(2) that because the substance of plaintiffs' claims were before the approving authority as a part of the EIS, it was not deficient; and (3) that plaintiffs lacked standing to challenge the sufficiency of the EIS in that they were beyond the zone of interests to be protected by NEPA, since the Secretary of the Interior in approving the leases in his fiduciary capacity was required by the Act to consider only environmental impacts which might adversely affect the Indians.

Plaintiffs' third claim, that the leases were invalid since they violated certain regulations of the BIA, was held subject to summary judgment on the grounds that plaintiffs (1) lacked standing to sue on this issue; (2) failed to exhaust available administrative remedies; and (3) were barred by laches.

The court also granted summary judgment against plaintiffs on their fourth claim, that the leases were invalid since the United States, rather than the Crow Tribe owned the coal affected by the leases. The court reasoned that (1) none of the plaintiffs had a colorable claim to the leased coal rights and hence none had the personal stake necessary for standing; (2) even if plaintiffs had standing, litigation to determine the ownership of the coal rights was barred by sovereign immunity; and (3) the Crow Tribe did in fact own the coal rights.

We will discuss the first and second claims together; Thereafter the third and fourth claims will be treated separately. To simplify our presentation no attempt will be made to deal with each and every position taken by the lower court; rather our discussion is directed to, and organized around, only those issues which we believe are necessary to the proper disposition of these claims.

I. First and Second Claims.

  1. Preliminary Questions:

    Standing and Laches.

    (1) Standing.

    Appellants base their standing to sue on § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702, which provides:

    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.

    The Supreme Court has held that persons have standing to seek judicial review of federal agency action under § 10 where they allege that the challenged action has caused them 'injury in fact' to an interest 'arguably within the zone of interests to be protected or regulated' by the statute which was allegedly violated. Data Processing Service 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). Injuries of a noneconomic nature to widely-shared aesthetic and environmental interests, as well as economic injuries, can amount to an 'injury in fact' sufficient for standing under § 10. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), cited with approval in United States v. SCRAP, 412 U.S. 669, 689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Appellants here allege injury to both environmental and economic interests which are within the 'zone of interests' to be protected by NEPA. United States v. SCRAP, supra, 412 at 686 n. 13, 93 S.Ct. 2405; cf. Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974); National Forest Preservation Group v. Butz, 485 F.2d 408, 410 (9th Cir. 1973).

    This conclusion is not altered either by the fact that Indians were parties to the leases being attacked or by the fact that the Secretary of the Interior acted in his capacity as a fiduciary for such Indians in approving the leases. NEPA's stated purpose is to 'assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings . . .' 42 U.S.C. § 4331(b)(2). (Emphasis added). Prior judicial interpretations of NEPA, moreover, give no indication that major federal actions primarily pertaining to Indians

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    were to be immune from environmental challenges by all but such Indians. This court has stated that '(e)nvironmental protection is a part of every federal agency's mandate; the Act requires 'agencies to consider environmental issues just as they consider other matters within their mandates." Lathan v. Brinegar, 506...

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