Bob Marshall Alliance v. Hodel

• Decision Date: 01 August 1988
• Docket Number: Nos. 86-4014,86-4019,s. 86-4014
• Citation: 852 F.2d 1223
• Parties: 18 Envtl. L. Rep. 21,152 BOB MARSHALL ALLIANCE, et al., Plaintiffs-Appellees, v. Donald P. HODEL, Secretary of the Interior, * et al., Defendants, and Paul C. Kohlman and Ann E. Kohlman, Defendants-Appellants. BOB MARSHALL ALLIANCE, et al., Plaintiffs-Appellees, v. Donald P. HODEL, Secretary of the Interior, * et al., Defendants-Appellants, and Placid Oil Company, Defendant-Intervenor, and Paul C. Kohlman and Ann E. Kohlman, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1223

852 F.2d 122318 Envtl. L. Rep. 21,152BOB MARSHALL ALLIANCE, et al., Plaintiffs-Appellees,
v.
Donald P. HODEL, Secretary of the Interior, ^* et
al., Defendants,
and
Paul C. Kohlman and Ann E. Kohlman, Defendants-Appellants.
BOB MARSHALL ALLIANCE, et al., Plaintiffs-Appellees,
v.
Donald P. HODEL, Secretary of the Interior,
^* et al., Defendants-Appellants,
and
Placid Oil Company, Defendant-Intervenor,
and
Paul C. Kohlman and Ann E. Kohlman, Defendants.Nos. 86-4014, 86-4019.United States Court of Appeals,
Ninth Circuit.Argued Aug. 6, 1987.
Submitted June 16, 1988.
Decided Aug. 1, 1988.

Page 1224

J. Carol Williams, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Constance E. Brooks, Mountain States Legal Foundation, Denver, Colo., for defendant-appellant Paul C. Kohlman.

Stephan C. Volker, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Montana.

Before CANBY, REINHARDT and BEEZER, Circuit Judges.

REINHARDT, Circuit Judge:

This appeal involves the issuance of oil and gas leases on the area known as Deep Creek, located in Montana's Lewis and Clark National Forest. The Bob Marshall Alliance and the Wilderness Society (collectively "Marshall Alliance") brought suit against several federal agencies and the lessees, ¹

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challenging issuance of the leases on several statutory grounds. 685 F.Supp. 1514.

First, Marshall Alliance alleges that issuance of the leases violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Secs. 4321 et seq. (1982). NEPA mandates the preparation of an environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." Id. Sec. 4332(2)(C). In order to determine whether an EIS is required, the federal agency concerned prepares an environmental assessment. 40 C.F.R. Sec. 1508.9 (1987). Based on that assessment the agency may conclude that the action will not significantly affect the environment and issue a "Finding of No Significant Impact" ("FONSI") in lieu of an EIS. Id. Sec. 1508.13. We have held that an EIS is required at the point where a federal agency makes an "irreversible and irretrievable commitment of the availability of resources." Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir.1979). Marshall Alliance contends that, because the leases in question here were issued without an EIS, the requirements of NEPA were not met.

Second, NEPA also requires that federal agencies "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. Sec. 4332(2)(E) (1982); see 40 C.F.R. Sec. 1508.9(b) (1987) (environmental assessment must include discussion of alternatives). Marshall Alliance contends that the alternative of not issuing the Deep Creek leases--the "no action alternative"--was not considered adequately, in violation of NEPA's mandate.

Marshall Alliance's third claim involves the Endangered Species Act of 1973 (the "ESA"), 16 U.S.C. Secs. 1531 et seq. (1982). The ESA establishes a consultation process by which federal agencies ensure that their actions will not jeopardize a threatened or endangered species or damage the habitat of such a species. Id. Sec. 1536(a)(2). The statute requires preparation of a biological opinion based on "the best scientific and commercial data available" whenever a threatened or endangered species is present in the area of a proposed action. Id. Secs. 1536(a)(2), (b). If the opinion concludes that the action would jeopardize a protected species, the action must be modified. Id. Marshall Alliance alleges that the requirements of the ESA were not met before the Deep Creek leases were issued.

Following our recent opinion in Conner v. Burford, 836 F.2d 1521 (9th Cir.1988), we hold that the defendant agencies violated the provisions of both NEPA and the ESA.

FACTS AND PROCEEDINGS BELOW

The Deep Creek Further Planning Area ("Deep Creek") comprises about 42,000 acres of wild, mountainous terrain. It is bounded to the west by three designated wilderness areas and to the east by three wilderness study areas. Deep Creek offers spectacular scenery and recreational opportunities for fishers, hikers, and outdoors enthusiasts of all kinds. Perhaps most important, it is home to a large and unique wildlife population. Deep Creek is an important refuge for four threatened or endangered species: the grizzly bear, the gray wolf, the peregrine falcon, and the bald eagle. ² In addition, bighorn sheep, elk, mule and white-tailed deer, black bear, moose, mountain goat and mountain lion abound in the area. At the same time, Deep Creek offers opportunities for resource developers. The area is located in the Overthrust Belt, an extensive geologic zone in which major discoveries of oil and natural gas have already been made.

In 1977, the United States Forest Service began reviewing national forest lands to determine which areas should be recommended

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for wilderness designation. Through this Roadless Area Review and Evaluation ("RARE II") process, the Forest Service classified areas as either wilderness, nonwilderness, or further planning. Those lands classified as further planning areas are open for all uses permitted under applicable land use plans--including oil and gas exploration--pending the development of management plans which will consider whether to recommend the area for inclusion in the wilderness system. See California v. Block, 690 F.2d 753, 758 (9th Cir.1982)....