Bob Marshall Alliance v. Lujan

• Decision Date: 10 July 1992
• Docket Number: No. CV-82-015-GF.,CV-82-015-GF.
• Citation: 804 F. Supp. 1292
• Parties: BOB MARSHALL ALLIANCE, et al., Plaintiffs, v. Manuel LUJAN, Jr., in his official capacity as Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Montana

804 F. Supp. 1292

BOB MARSHALL ALLIANCE, et al., Plaintiffs, v.Manuel LUJAN, Jr., in his official capacity as Secretary of the Interior, et al., Defendants.

No. CV-82-015-GF.

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

July 10, 1992.

Stephan C. Volker, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., James A. Patten, Patten & Renz, Billings, Mont., for plaintiffs.

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

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

Robert Schaeffer & Perry Wallace, U.S. Dept. of Justice, Land & Nat'l Resources Div., Washington, D.C.

MEMORANDUM AND ORDER

HATFIELD, Chief Judge.

PROCEDURAL BACKGROUND

The plaintiffs, Bob Marshall Alliance and the Wilderness Society, instituted the present action challenging the propriety of the federal government's issuance of several oil and gas leases in an area of the Lewis and Clark National Forest known as Deep Creek.Specifically, the plaintiffs allege the issuance of the leases violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq.(1982), and the Endangered Species Act of 1973("ESA"), 16 U.S.C. §§ 1531 et seq.(1982).This court awarded summary judgment to the plaintiffs holding(i) that the agencies violated NEPA and pertinent forest service regulations by failing to prepare any Environmental Impact Statement ("EIS") for the Deep Creek leases¹; (ii) that the agencies violated NEPA by failing to give meaningful consideration to the "no-action" alternative; and (iii) that the agencies violated the prescriptions of ESA by not properly assessing the effects of leasing on threatened and endangered species in the Deep Creek area.The court further set aside the actions of the agencies in issuing the leases and enjoined the agencies from issuing any leases in the Deep Creek area pending compliance with NEPA, the ESA and agency regulations.Bob Marshall Alliance v. Watt,685 F.Supp. 1514(D.Mont.1986).

Upon appeal, the judgment of this court was affirmed in part, reversed in part, and remanded.Bob Marshall Alliance v. Hodel,852 F.2d 1223(9th Cir.1988), cert denied,489 U.S. 1066, 109 S.Ct. 1340, 103 L.Ed.2d 810(1989).The Ninth Circuit affirmed that aspect of the judgment which found the defendant agencies violated NEPA by issuing non-NSO leases on Deep Creek without preparation of an EIS, and by issuing any leases at all on Deep Creek without adequate consideration of the no action alternative.852 F.2d at 1230.The Ninth Circuit further affirmed that aspect of the judgment which found the defendants violated the ESA by issuing the leases without preparation of a comprehensive biological opinion which assesses the effects of leasing and post-leasing activities on threatened and endangered species in the Deep Creek area.852 F.2d at 1230.However, the Ninth Circuit remanded the case for two purposes: (1) a determination of which of the 19 leases are NSO leases, i.e., leases in which the language of the stipulation, construed with the rest of the lease, absolutely prohibits surface disturbance in the absence of specific government approval, 852 F.2d at 1227-28; and (2) a clarification of this court's order "setting aside" the federal agencies' actions allowing issuance of the leases.852 F.2d at 1230.

Presently before the court is defendants' motion for summary judgment.By way of that motion, the parties have presented their positions upon the remanded issues.

Also before the court are two motions, presented subsequent to the circuit court's order of remand, by defendantPaul Kohlman, an individual lessee.Kohlman moves the court for leave to file an amended answer asserting a crossclaim for monetary damages against the Secretary of the Interior and the Bureau of Land Management.Kohlman seeks to recover the monies he paid in rentals on the subject leases after they were issued to him by the federal defendants.Kohlman agrees, in essence, that the leases should be set aside, and the federal defendants enjoined from issuing leases in the Deep Creek area until the issuance of similar leases is done in conformity with applicable federal law.Kohlman also asserts that the Bureau of Land Management must be directed to refund the monies Kohlman paid as rental upon his leases.

DISCUSSION

Federal Defendants' Motion for Summary Judgment

A. NSO Leases

The court of appeals defined an effective NSO lease as one with a stipulation which "absolutely prohibits surface disturbance in the absence of specific government approval".Bob Marshall Alliance v. Hodel,852 F.2d at 1227-1228.Throughout this litigation, the federal defendants contended that four of the nineteen leases at issue should properly be considered as NSO leases under the foregoing definition.The plaintiffs, however, have consistently asserted that none of the Deep Creek leases, including those which contained an "NSO stipulation", should be considered as absolutely prohibiting surface disturbance in the absence of specific government approval.Subsequent developments with respect to the four disputed leases, however, have rendered the NSO issue moot as a practical matter.

The federal defendants have advised the court that the holders of the four referenced leases, which the federal defendants contended qualified as NSO leases, have relinquished all rights they may have acquired in those leases.As a result, the federal defendants maintain the leases are no longer in effect and the issue of whether the four leases appropriately qualify as NSO leases, as defined by the Ninth Circuit Court of Appeals, is rendered moot.The court agrees.²

B.Appropriate Remedy

The opinion entered by this court in conjunction with the entry of judgment in favor of the plaintiffs stated that the actions of the federal defendants allowing the issuance of oil and gas leases in the Deep Creek area was "set aside", and the defendant agencies enjoined from making further recommendations to lease and issuing leases pending compliance with the NEPA, agency regulations, and the ESA.Bob Marshall Alliance v. Watt,685 F.Supp. at 1523.Pursuant to the mandate of the Ninth Circuit of Appeals, this court was directed to "clarify its order and to determine the specific steps to be taken with respect to the various Deep Creek leases."Bob Marshall Alliance v. Hodel,852 F.2d at 1230.³

The federal defendants maintain the appropriate remedy to be utilized in the present case is to continue the injunction against lease activities in the Deep Creek area until such time as the federal defendants have fully complied with the requirements of NEPA and the ESA.The federal defendants read the language utilized by the Ninth Circuit to suggest that this court must merely enjoin lease activity rather than cancel the leases.

In response, the plaintiffs, as well as defendant Kohlman, contend the leases must be set aside rather than merely suspended, to assure, inter alia, compliance with NEPA's requirement that the federal defendants fully consider the "no-action" alternative before leasing the Deep Creek area.Plaintiffs view the situation presented in this case as distinct from that addressed by the court in Conner v. Burford since the federal defendants in the present case failed to consider the "no-leasing" option.From the plaintiffs' perspective, the Ninth Circuit's acknowledgement of this additional factor should be viewed as indicative of that court's opinion that this distinguishing factor alone justifies setting aside, rather than suspending, the Deep Creek leases.

The federal defendants suggest, however, that this omission is simply another factor to be considered in determining whether the plaintiffs have made the requisite showing that cancellation of the leases, as opposed to suspension, is necessary to avoid irreparable injury and further the public interest.

The proper remedy ordinarily to be utilized to correct substantial violations of the procedural requirements of NEPA and the ESA is an injunction.Bob Marshall Alliance v. Hodel,852 F.2d at 1230(citing, Thomas v. Peterson,753 F.2d 754, 764(9th Cir.1985)).In Thomas v. Peterson, the Ninth Circuit specifically noted that absent "unusual circumstances", an injunction is the appropriate remedy for violation of NEPA's procedural requirements.753 F.2d at 764.However, unusual circumstances are presented in this action which warrant an uncommon remedy.

The crux of the plaintiffs' challenge in this case is that the federal agencies failed to give full and meaningful consideration to the "no-leasing" alternative.Bob Marshall Alliance v. Hodel,852 F.2d at 1230."By definition, the no-leasing option is no longer viable once the leases have been issued; it must be considered before any action is taken or the statutory mandate becomes ineffective."852 F.2d at 1229, n. 4(emphasis supplied).

The court agrees with the plaintiffs that the failure of the federal agencies to consider the no-action alternative with respect to their issuance of the Deep Creek leases distinguishes the present situation from the situation addressed in Conner v. Burford.Bob Marshall Alliance v. Hodel,852 F.2d at 1230.⁴Acknowledging this additional omission on their part, the federal agencies nonetheless assert that to justify a complete cancellation of the Deep Creek leases, plaintiffs must show that mere suspension of the leases would operate to cause an irreparable injury and alter the public interest.

In the exercise of its traditional equitable jurisdiction, a federal court"must balance the competing claims of injury and must consider the effect on each party of granting or withholding of the requested relief."Amoco Production Co. v. Village of Gambell,480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542(1987).Nothing in the NEPA indicates that Congress intended to...