Davis v. Morton, 9190.
| Decision Date | 21 December 1971 |
| Docket Number | No. 9190.,9190. |
| Citation | 335 F. Supp. 1258 |
| Parties | Abel DAVIS et al., Plaintiffs, v. Rogers C. B. MORTON, Secretary of the Interior of the United States of America, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
White, Gilbert, Koch, Kelly & McCarthy, Santa Fe, N. M., for plaintiffs.
Victor R. Ortega, U. S. Atty., Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M., for defendants.
This matter came on for evidentiary hearing on the application of the plaintiffs for a preliminary injunction, following which the parties have submitted extensive briefs. The issue for decision in this case is whether the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4321 et seq. (Supp.1971), applies to the Secretary of the Interior when he approves a lease of restricted Indian land under 25 U.S.C.A. § 415 (Supp.1971). The material facts are not in dispute.
On April 17, 1970, a 99 year lease of restricted Indian lands was executed by the Pueblo of Tesuque as lessor and Sangre de Cristo Development Company, Inc., as lessee. The lease provides that Sangre de Cristo, a New Mexico corporation, shall develop the leased premises for residential, recreational and commercial purposes, beginning with a tract consisting of some 1300 acres (Tract I). The lease and accompanying master plan contemplate a small city, and accordingly the lease grants options to Sangre de Cristo on 4,100 acres in addition to Tract I. The residential lots on Tract I vary in size from 1/3 acre to almost one acre, and the tract includes space for a golf course, tennis club, apartment houses and condominiums.
The pueblo is authorized to lease its property by the provisions of 25 U.S.C. A. § 415. This section requires that the Secretary of the Interior approve all leases thereunder and provides a maximum term of 99 years. On May 24, 1970, the lease agreement here involved was approved by the Area Supervisor of the Bureau of Indian Affairs for the New Mexico District, acting on specific authorization of the Secretary of the Interior.
The plaintiffs herein, two individuals who reside near the border of the Tesuque reservation and two non-profit environmental corporations, brought this suit asking that the Secretary's approval of the lease be declared invalid and that further development of the leased premises be enjoined on the grounds that the Secretary did not comply with the provisions of the NEPA. Specifically, the plaintiffs claim that the Secretary violated § 102(C) of the Act (42 U.S.C.A. 4332(C)) because he approved the lease without first obtaining an environmental impact statement as required in that section.1
The defendants, the Secretary of the Interior, the Commissioner of Indian Affairs and the Bureau of Indian Affairs Area Supervisor, do not seriously contest the court's jurisdiction or the standing of the plaintiffs to bring the suit,2 and they admit that no environmental impact study was ever done on the project contemplated in the lease and that the lease was an action "significantly affecting the quality of the human environment." The sole issue for decision is whether the Secretary's action in approving the lease was "major federal action" as that term is used in § 102(C) of the NEPA.
The lands involved here are owned in fee by the Pueblo of Tesuque, subject to a restraint on alienation without the approval of the Secretary (Pueblo Lands Act, June 7, 1924, 43 Stat. 636). Although the Secretary's approval of the lease herein was required by statute, the United States was not a party to the lease, but rather was acting through the Secretary as a fiduciary or guardian of the interests of the Pueblo in the lease. Thus the only "federal action" occurred not in the lease transaction itself but only in the approval thereof. To call such approval "major federal action" is not warranted in view of the fact that the United States had no interest whatsoever in the lease or in the project of the lessees. The United States did not initiate the lease, participate financially in it, or benefit from it. Its further responsibilities under the lease consist only of subsequent approvals in its role as guardian.
The legislative history of the NEPA is barren of any indication of whether Congress considered the Secretary's approval of Indian leases under 25 U.S.C.A. § 415 to be "major federal action." However, on June 2, 1970 § 415 was amended to provide in part: "Prior to approval of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall first satisfy himself that adequate consideration has been given to * * * the effect on the environment of the uses to which the leased lands will be subject." This amendment effectively requires the Secretary to examine the environmental factors involved in Indian leases and as such serves the same purpose...
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...rev'd on other grounds sub nom. United States v. Devonian Gas and Oil Company, 424 F.2d 464 (2d Cir. 1970); see, Davis v. Morton, 335 F.Supp. 1258, 1260 (D.N.M.1971), rev'd on other grounds, 469 F.2d 593 (10th Cir. 1972). The Intervenors and the Tribe would each clearly be prejudiced by a d......
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Davis v. Morton
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