Defenders of Wildlife v. Andrus

• Decision Date: 05 February 1980
• Docket Number: No. 79-1410,79-1410
• Citation: 627 F.2d 1238
• Parties: , 201 U.S.App.D.C. 252, 10 Envtl. L. Rep. 20,163 DEFENDERS OF WILDLIFE et al., v. Cecil D. ANDRUS, in his official capacity as Secretary of the Interior, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1238

627 F.2d 1238

17 ERC 1562, 201 U.S.App.D.C. 252, 10

Envtl. L. Rep. 20,163

DEFENDERS OF WILDLIFE et al., v. Cecil D. ANDRUS, in his official capacity as Secretary of

the Interior, et al., Appellants.

No. 79-1410.

United States Court of Appeals, District of Columbia Circuit.

Feb. 5, 1980.

Rehearing Denied March 6, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 79-0800).

Dirk D. Snel and Robert L. Klarquist, Attys., Dept. of Justice, Washington, D. C., were on brief, for appellant.

Karin P. Sheldon, Gregory A. Thomas and Thomas B. Stoel, Jr., Attys., Natural Resources Defense Council, Inc., Washington, D. C., were on brief, for appellees.

Before McGOWAN, LEVENTHAL ^* and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This is an appeal from an order of the District Court granting a preliminary injunction against the Secretary of the Interior. It raises the question of whether, under the circumstances of this case, the National Environmental Policy Act obligates the Secretary to prepare and circulate an environmental impact statement when he does not act to prevent the State of Alaska from conducting, as part of a wildlife-management program, a wolf hunt on certain federal land. Because the Secretary's conduct here does not constitute a "major Federal action" within the meaning of the Act, we hold that the Secretary is not so obligated, and we reverse.

I The Background of this Action

On February 16, 1979, the Alaska Department of Fish and Game (ADFG) announced a program whose aim was to kill from aircraft 170 wolves (approximately sixty percent of the wolf population) in an area of 35,000 square miles in the interior part of the state. Many, perhaps most, of the wolves were to be killed on federal lands for which the Department of the Interior is responsible. On February 23, counsel for one of the appellees, Natural Resources Defense Counsel, Inc., asked the Department to prepare an environmental impact statement for Alaska's program before allowing it to begin. The Department, however, did not exercise whatever authority it may have to stop the program and did not prepare an impact statement. On March 12, appellees organizations and individuals interested in the preservation of the environment in general and of wildlife in particular ¹ filed a complaint asking for declaratory and injunctive relief against appellants the Secretary and two other officials of the Department of the Interior.

The complaint predicted that, although the wolf hunt was proposed in order to increase the number of moose in the region by decreasing the numbers of their major predator, it would in fact weaken the moose herds by ending a "culling process (which) is natural selection in action, and (which) assures survival of the fittest moose . . ." and would devastate the wolf packs even beyond the ADFG's estimates. This interference with these two major species, the complaint continued, would disrupt the ecology of the entire area.

The complaint asserted that the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., authorizes the Secretary of the Interior to prevent the killing of wildlife on federal lands and requires him to evaluate whether he must intervene if he is fully to serve the environmental concerns of the Act. The complaint claimed as one of its "Violations of Law" that appellants failed to make that evaluation. The other violation of law the complaint alleged is that appellants had, but failed to meet, an obligation under § 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., to prepare an environmental impact statement before deciding not to prevent Alaska from killing wolves on Federal land.

On March 13, 1979, the United States District Court for the District of Columbia issued a temporary restraining order which enjoined appellants to "take all steps necessary to halt the aerial killing of wolves by agents of the State of Alaska" on the relevant federal lands. Although Alaska has apparently continued to kill wolves on its own lands, it has discontinued doing so on federal lands.

On March 23, 1979, the District Court acted on appellees' motion for a preliminary injunction. It first denied appellants' requests to transfer the action to the District of Alaska, pursuant to 28 U.S.C. § 1404(a), and to dismiss the action for failure to join Alaska as an indispensable party, pursuant to Fed.R.Civ.P. 19(a). ² The Court said that it would inconvenience both parties to transfer the action to Alaska and that, "(a) lthough Alaska has an interest in the outcome in this matter, the Court notes that the interest is not so great as to prompt a motion to intervene."

The District Court then weighed the merits of the motion for a preliminary injunction in the scales this court constructed in Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). The District Court came to the following conclusions:

(1) Plaintiffs would be irreparably harmed if no injunction were issued, since without one, the killing of wolves would soon begin and the natural environment of the federal lands would thereby be damaged. Further, plaintiffs' rights under NEPA to an impact statement would be irretrievably lost if the wolves were killed before the statement was written.

(2) An injunction would not unduly injure the defendants, since they had not invested time or resources in the program to hunt wolves.

(3) "There exists a strong public interest under NEPA in having federal officials consider the potential environmental effects on national lands and resources prior to the occurrence of a highly controversial and potentially devastating wolf control program."

(4) There was a substantial likelihood plaintiffs would win on the merits.

As to those merits, the District Court believed it was "confronted with a simple question: Does NEPA require the Secretary of the Interior to prepare an EIS prior to permitting an extensive wolf kill to take place on federal lands?" The District Court reasoned that FLPMA requires the Secretary "to manage and plan the use of federal lands" and that "(c)learly, an environmental assessment of the wolf elimination program must be part of the decisionmaking process." The District Court therefore issued a preliminary injunction which required appellants "to prevent any such killing of wolves pending preparation of an environmental impact statement on the potential effects of the wolf control program."

II Earlier Related Cases

This is not the first time a federal court has been asked to order the Secretary of the Interior to keep Alaska from killing wolves on federal land. In 1976, the Alaska Department of Fish and Game announced that it proposed to kill about eighty percent of the wolves in three of its game-management units. Many of the plaintiffs in the case presently before us asked the District Court for the District of Columbia (the Hon. Oliver Gasch) for an injunction similar to the one we are now reviewing. Defenders of Wildlife v. Andrus, 9 ERC 2111 (Feb. 14, 1977). They contended that the Secretary of the Interior had violated FLPMA, the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601 et seq., and NEPA by failing (1) to assess the environmental consequences of killing wolves and (2) to prepare an environmental impact statement. The Secretary responded that he lacked authority to close federal land to state wildlife-management programs.

Judge Gasch decided, after examining the language and legislative history of FLPMA and ANCSA, that the Secretary does have that authority. Judge Gasch did not reach the question of what obligations ANCSA imposed on the Secretary, but he did conclude that "plaintiffs have shown a very substantial likelihood of success on the merits of their claim that defendants have violated the requirements of NEPA by not preparing an environmental impact statement . . . ." Defenders of Wildlife v. Andrus, 9 ERC at 2118. Judge Gasch therefore granted the request for a preliminary injunction.

After that injunction issued, the Secretary ordered the Governor of Alaska, by telegram, not to kill wolves on the relevant federal land. Alaska complied, but brought an action in the District Court for Alaska (the Hon. James von der Heydt) which asked the court to declare the Secretary's order a violation of the Alaska Statehood Act, 48 U.S.C. Chap. 2, § 6(e), and to enjoin the Secretary to withdraw that order. Alaska v. Andrus, 429 F.Supp. 958 (D.C.Alaska 1977). Plaintiffs in the action over which Judge Gasch presided intervened in the Alaska suit. Like Judge Gasch before him, Judge von der Heydt found that the Secretary had the power to close federal lands to state wildlife-management programs, but he held that the Secretary need not exercise that power, since the Secretary's failure to prevent the state from carrying out its program did not convert that program into "a major federal action triggering NEPA requirements." Id. at 962. He conceded that several cases hold that

certain decisions by federal agencies which allow others to take action affecting the environment can constitute federal action. . . . The distinguishing feature of each of these cases, however, is that before the non-federal party could act there had to be some affirmative conduct on the part of the federal government.

Id. (emphasis added). Judge von der Heydt found it "a strained chain of logic which turns totally non-federal action into federal action just because the Secretary has the power to regulate the activity." Id. at 963. Finally, he reasoned that the Alaska Native Claims Settlement Act imposes "no independent duty on the Secretary to require licenses or permits to hunt on these lands and cannot be the basis for a determination that there is federal action involved in these hunts." Id. This...