Jette v. Bergland

• Decision Date: 22 August 1978
• Docket Number: No. 76-2129,76-2129
• Citation: 579 F.2d 59
• Parties: , 8 Envtl. L. Rep. 20,506 Norman O. JETTE and Gertrude A. Jette, husband and wife, and Izaak Walton Land of Enchantment Chapter, Inc., Plaintiffs-Appellants, v. Robert H. BERGLAND, Secretary of Agriculture, U. S. Department of Agriculture, John McGuire, Chief Forester, U. S. Forest Service, William D. Hurst, Regional Forester Region III, U. S. Forest Service, Robert M. Williamson, Supervisor, Gila National Forest, U. S. Forest Service, Roy Carson, Silver City District Ranger, Gila National Forest, U. S. Forest Service and Exxon Corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 59

579 F.2d 59

11 ERC 1658, 8 Envtl. L. Rep. 20,506

Norman O. JETTE and Gertrude A. Jette, husband and wife, and Izaak Walton Land of Enchantment Chapter, Inc. Plaintiffs-Appellants, v. Robert H. BERGLAND, Secretary of Agriculture, U. S Department of Agriculture, John McGuire, Chief Forester, U S. Forest Service, William D. Hurst, Regional Forester Region III, U. S. Forest Service, Robert M. Williamson Supervisor, Gila National Forest, U. S. Forest Service, Roy Carson, Silver City District Ranger, Gila National Forest, U. S. Forest Service and Exxon Corporation, et al., Defendants-Appellees.

No. 76-2129.

United States Court of Appeals, Tenth Circuit.

Argued March 15, 1978.

Decided May 11, 1978.

Rehearing Denied Aug. 22, 1978.

Emmett C. Hart, Albuquerque, N. M., for plaintiffs-appellants.

Kathryn A. Oberly, Dept. of Justice, Washington, D. C. (James W. Moorman, Acting Asst. Atty. Gen., and Raymond H. Zagone, Dept. of Justice, Washington, D. C., on the brief), for defendants-appellees except Exxon Corp.

John R. Cooney of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M. (Robert M. Perry, Exxon Corp., Houston, Tex., and Lynn H. Slade of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., with him on the brief), for defendant-appellee Exxon Corp.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is an action in which the plaintiffs, owners of 4.279 acres, located in the Gila National Forest in New Mexico, seek relief on various legal theories against the Secretary of Agriculture and the Forest Service and Exxon Corporation, the licensee or permittee of the Forest Service, under authority of the Mining Laws of 1872, 30 U.S.C. §§ 21-54 (1970). Having taken early retirement because of health, they had built their home on this land tract. They here attack the activity of Exxon, claiming that it has an adverse affect on the environment, which results in an invalid invasion of the property rights of the plaintiffs and others in the Gila Forest area.

Exxon has been engaged in this area in exploration efforts to discover copper. To this end it has conducted very extensive core drilling and has, of course, used heavy equipment to carry out this work. It claims that it has done everything under the direct supervision and with the approval of the Forest Service, and on this account and because of the mining laws under which the authorization has been given, no legal rights of the plaintiffs have been violated. Basically the trial court agreed with this position. It made findings of fact in favor of Exxon and the government representatives with respect to virtually all of the plaintiffs' claims.

On this appeal the plaintiffs contend that the findings of the trial court that the noxious fumes and noises were transitory and not serious were clearly erroneous. So also they claim that the finding that there was no interference with the use and enjoyment of the land was clearly erroneous. A similar contention is made with respect to the finding on insufficiency of the evidence of trespass, lack of effect on the surface water, destruction of trees and plant life and lack of effect on the plaintiff Izaak Walton Land of Enchantment Chapter, Inc. It is said also that the court erred in finding that although there was inconvenience and annoyance, it was not the result of any unreasonable or unwarranted utilization of the property by Exxon. Plaintiffs further contend that the Exxon mining locations are invalid and that the court was in error in excluding evidence as to the nature and extent of the filings.

Finally, it is contended that the court erred in dismissing the claim of plaintiffs that the actions of Exxon acting under color of law, the 1872 mining laws, and permits of the Forest Service, constituted a major action significantly affecting the quality of the human environment so as to require compliance with the National Environmental Policy Act (NEPA). It is this last contention that there has been a failure to comply with NEPA which appears to have some merit.

As to the other issues, it is sufficient to say that the findings are not clearly erroneous. Nor can we conclude that the mining laws of 1872 under which the permits were granted were unconstitutional as contended.

The trial court sidestepped the question whether the permits and the plan of the Forest Service constitute a major action significantly affecting the quality of the human environment so as to require an impact statement pursuant to NEPA. It held that the plaintiffs had failed to exhaust their administrative remedies and that, therefore, it was unnecessary to consider whether a NEPA statement was necessary. Our conclusion is that the trial court erred in so ruling. We must hold that the administrative remedies were exhausted and hence the court should have taken up the NEPA issue.

The plaintiffs-appellants, Norman O. Jette and Gertrude A. Jette, retired in 1970 and 1971, respectively. As we previously mentioned, they built a home on the 4.279 acres of land within the Gila National Forest. They have resided there since their retirement. According to the allegations of the complaint, they selected this area "after many years of searching for a retirement homesite which would provide natural beauty, tranquility, privacy and other attributes of rights in real property." The Izaak Walton Land of Enchantment Chapter, Inc. is a New Mexico corporation. One of its purposes is the preservation of the natural beauty, life, tranquility and purity of waters of the Gila National Forest. The Jettes and some of the witnesses are members of this organization.

About the same time that the Jettes retired, Exxon entered the Gila National Forest under Forest Service permit to begin their surveys. Exxon began core drilling numerous discovery or validation holes near the property of plaintiffs. Exxon surveyed and explored with helicopters and used bulldozers to build roads and to clear core drilling sites. Plaintiffs claim that these activities of Exxon have resulted in substantial and irreparable damage to the entire area including the destruction of thousands of trees and other plant life and the emission of noxious fumes from equipment, all of which have caused the birds to leave the region and have degraded the surface and subsurface water by the dumping of chemical wastes on the land and in the water. Exxon's activities have also, according to the Jettes, destroyed the natural beauty and scenic wonders of the forest.

The third claim is that the actions of Exxon constitute a major federal action significantly affecting the quality of human environment, and that the government defendants have failed to prepare an environmental impact statement as required by NEPA. This is the claim which Judge Mechem determined not to be ripe because the plaintiffs had not exhausted their administrative remedies. Whether there was sufficient exhaustion is the important issue in the case. We now consider it.

On August 24, 1972, the Forest Service issued a special use permit allowing Exxon to construct access roads to its mining claims. Later (on August 3, 1973), a new permit was granted. This was due to the necessity for building more access roads to serve Exxon's expanded activities. In considering Exxon's application, the Forest Service prepared an Environmental Analysis Report for the purpose of determining whether the issuance of such a permit would affect the quality of the human environment. The Forest Service does this as a prelude to deciding whether an environmental impact statement is required. The Service concluded in this instance that no such impact statement was necessary.

In 1974, the Secretary of Agriculture promulgated new regulations concerning use of the surface of lands of the National Forest System in connection with operations authorized by the mining laws. These regulations are in 36 C.F.R. Part 252 (1977). They provide for the approval of an operating plan as a prerequisite to conducting certain operations. On April 30, 1975, Exxon's operating plan was approved by a Forest Supervisor. A new Environmental Analysis Report was prepared and the Forest Service again concluded that an environmental impact statement was not necessary. The existing special use permits were cancelled and the operating plan was in effect until June 30, 1976. On April 2, 1976, the Forest Supervisor approved a supplemental plan of operations to be effective through December 31, 1976. Later this was extended to December 31, 1977. Mr. Jette received notice of this approval thus given and of his right to seek administrative review pursuant to 39 Fed.Reg. 30916 (1974). See the current version of 36 C.F.R. § 211.19 (1977). Mr. Jette on May 1, 1976, wrote a letter in which he objected to Exxon's plan of operation. The Forest Service treated this letter as an appeal. The appeal was pending at the time that the district court dismissed the plaintiffs' NEPA claim (based upon plaintiffs' failure to exhaust administrative remedies). It was still pending at the time judgment was entered on the nuisance claim. On October 20, 1976, the Regional Forester affirmed the decision approving Exxon's plan. Jette was informed of his right to appeal to the Chief of the Forest Service. By letter dated November 17, 1976, he stated that he did not intend to appeal.

Whether an environmental impact statement must be prepared is initially a question to be decided by the agency. This decision precedes any judicial review. Grand Canyon Dorries, Inc. v. Walker, 500 F.2d 588, 590 (10th Cir. 1974); Cf. Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., --- U.S. ----, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).

The doctrine of exhaustion of administrative remedies has some flexibility depending on the circumstances. Hence to apply it to a specific case requires an understanding of the purposes of the doctrine and of the...