Bob Marshall Alliance v. Watt

• Decision Date: 27 May 1986
• Docket Number: No. CV-82-015-GF.,CV-82-015-GF.
• Citation: 685 F. Supp. 1514
• Parties: BOB MARSHALL ALLIANCE, et al., Plaintiffs, v. James G. WATT, et al., Defendants.
• Court: U.S. District Court — District of Montana

685 F. Supp. 1514

BOB MARSHALL ALLIANCE, et al., Plaintiffs, v. James G. WATT, et al., Defendants.

No. CV-82-015-GF.

United States District Court, D. Montana, Great Falls Division.

May 27, 1986.

Stephan C. Volker, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., James A. Patten, Patten & Renz, Billings, Mont., Karin P. Sheldon, Sierra Club Legal Defense Fund, Inc., Denver, Colo., Robert Schaeffer & Perry Wallace, U.S. Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., for plaintiffs.

Carl E. Rostad, Asst. U.S. Atty., Billings, Ronald Lodders, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., for defendants.

Robert B. Cousins, Jr., Shank, Irwin & Conant, Dallas, Tex., for intervenor-Placid Oil Co.

Michele A. Giusiana, Land & Nat. Resources Div., General Litigation Section, Washington, D.C.

David A. Veeder, Davidson, Veeder, Baugh, Broeder, Billings, Mont., for intervenor.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

The plaintiffs, Bob Marshall Alliance and the Wilderness Society, bring this action pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331-4332, and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., challenging the defendant United States Department of Interior's decision not to prepare an Environmental Impact Statement ("EIS") prior to leasing certain land within the National Forest System, i.e., the Deep Creek/Reservoir North Further Planning Area ("Deep Creek Area"), for the purpose of allowing exploration for oil and natural gas. Jurisdiction over the subject matter of this controversy vests in this court pursuant to 28 U.S.C. § 1331.

The matter is presently before the court on cross-motions of the parties requesting the court to enter summary judgment in their respective favors. Because the court concludes that the decision of the defendants not to prepare an EIS was unreasonable, the court finds it appropriate to enter judgment in favor of the plaintiffs.

I. FACTUAL BACKGROUND

The Deep Creek Area, comprising about 42,000 acres of the Lewis and Clark National Forest, is a rugged, remote and scenically varied terrain which forms a portion of the Rocky Mountain Front. A dramatic series of deep escarpments and parallel valleys separates the Rocky Mountains from the northern high plains. Ridges within the area reach elevations of about 8,500 feet, while valley bottoms lie generally about 4,500 feet above sea level. The Area is bounded on the west by three contiguous, congressionally designated, wilderness areas, specifically the Bob Marshall, the Scapegoat and the Great Bear Wilderness Areas, which cover a combined area of approximately 1,482,000 acres. On its east side, the Deep Creek Area abuts three Bureau of Land Management wilderness study areas.

The geology of the Area offers spectacular scenery. The eastern faces of the parallel north-south trending ridges are vertical fault scarps of grey-white Madison limestone, the tops of which tower as much as 4,000 feet above the surrounding valleys. Castle Reef and Chute Mountain on Deep Creek's eastern edge, facing the Northern Plains, are visible from the prairie for dozens of miles. The area is bordered on the western side by ridges which slope deeply down to the narrow stream bottoms.

Among the numerous species of wildlife endemic to the Deep Creek Area are Rocky Mountain Bighorn sheep, elk, mule and white-tailed deer, black bear, moose, mountain goat and mountain lion. While not admitted by the Government, the plaintiffs submit that it is generally believed that the Deep Creek Area provides critical habitat for the grizzly bear, the gray wolf, the peregrine falcon and the bald eagle, all of which are threatened or endangered species. Along with the wilderness complex it borders, the Deep Creek Area may well support a large portion of the entire grizzly population of the contiguous 48 states.

The Deep Creek Area is laced with several streams with significant sport fishery value. Those streams, which include the North and South Forks of Deep Creek, possess a pristine water quality.

Recreational use of the Deep Creek Area by local residents and permittees at nearby Forest Service cabins, commercial outfitters, visitors staying at camp grounds or camping in the back country, and visitors staying at guest ranches in the area is substantial.

The unique geological and ecological attributes of the Deep Creek Area account for the area's receiving a perfect wilderness attribute rating in the Forest Service's Roadless Area Review and Evaluation ("RARE II").¹ Nonetheless, because of the area's undetermined oil and natural gas potential, the Forest Service's Rare II decision assigned the area to the Further Planning category, rather than the Wilderness category. Having been designated a Further Planning Area, Deep Creek was made available for all uses permitted under applicable land use plans, provided it was managed so as to preserve suitability for potential Wilderness designation at a later date.

Upon receiving numerous applications for oil and natural gas leases within the Deep Creek Area, the Bureau of Land Management ("BLM") requested the Forest Service to analyze the impacts of oil and gas exploration and development on the environment of the Deep Creek Area, and make recommendations concerning the propriety of allowing leases for exploratory purposes. In January of 1981, the Regional Forester of Region I of the National Forest System recommended that the BLM lease the entire acreage of the Deep Creek Area for oil and gas exploration and development. The Regional Forester's recommendation was made prior to the preparation, and without the benefit of, any EIS. The Regional Forester simply concluded that the issuance of the oil and gas leases would have no significant adverse effects on the human environment, thereby obviating the need for an EIS.

In February of 1981, the plaintiffs, pursuant to 36 C.F.R. § 211.19, appealed the Regional Forester's recommendation to the Chief of the Forest Service. The plaintiffs' appeal was denied, and the decision of no "significant impact" affirmed by the Chief of the Forest Service in May of 1981. Their administrative remedies before the Department of Agriculture exhausted, the plaintiffs filed a protest with the Montana state office of the BLM, requesting that entity not to follow the recommendation of the Forest Service. The plaintiffs' protest, however, was dismissed by the Director of the BLM. The Secretary of the Interior, through his Assistant Secretary, affirmed the decision of the BLM Director. In January, 1981, the BLM, under authority of the Mineral Leasing Act of 1920, 30 U.S.C. § 226, began issuing leases for the purpose of oil and gas exploration within the Area. Sixteen leases have been issued for the Area.

The plaintiffs instituted the present action, pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706, to obtain judicial review of the Secretary's decision to lease the Deep Creek Area. The plaintiffs contend the decision violates the mandates of NEPA, the mandates of the ESA, and the Forest Service's regulations regarding activity within further planning areas.

II. ANALYSIS

A. Standard of Review.

The Court of Appeals for this Circuit has consistently held that an agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. Foundation for North American Wild Sheep v. United States, 681 F.2d 1172, 1177 (9th Cir.1982); Portela v. Pierce, 650 F.2d 210, 213 (9th Cir.1981); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980). As noted by the court in Foundation for North American Wild Sheep, the decision to prepare an EIS is not a matter committed to the particular agency's discretion. 681 F.2d at 1177, n. 24. Consequently, the "arbitrary and capricious" standard normally applicable to reviewing an agency's discretionary decisions, is inapplicable to agency actions falling within the purview of NEPA. Id. The mandatory nature of NEPA's directive that an EIS must be prepared for actions that may significantly affect the quality of the human environment renders the "reasonableness" standard the appropriate standard of review. Id.

B. The NEPA Claims.

By its terms, NEPA mandates the preparation of an EIS for all "major federal actions significantly affecting the quality of the human environment ...," NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C). See also, Kleppe v. Sierra Club, 427 U.S. 390, 399, 96 S.Ct. 2718, 2725, 49 L.Ed.2d 576 (1976). The broad scope of NEPA represents a firm congressional mandate directing agencies to consider environmental factors on an equal basis with other, more traditional, concerns, prior to taking action. Foundation for North American Wild Sheep v. United States, 681 F.2d at 1177.

The plaintiffs assert two distinct NEPA claims. First, the plaintiffs contend that the decision to issue oil and gas leases in the Deep Creek Area constitutes a major federal action significantly affecting the quality of the human environment, which requires the preparation of an EIS. 42 U.S.C. § 4332(2)(C)(i). Second, the plaintiffs maintain that because NEPA requires agencies to consider reasonable alternatives to a contemplated federal action, a "no-leasing" alternative was reasonable and should have been considered. 42 U.S. C. § 4332(2)(E).

(1) Major Federal Action.

In analyzing the merits of a NEPA claim, the courts must heed NEPA's broad scope in forcing agencies to be actively aware of environmental concerns. "The statutory phrase `actions significantly affecting the quality of the environment' is intentionally broad, reflecting the Act's attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency." Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n., 481 F.2d...