MINNESOTA PUBLIC INTEREST RESEARCH v. Butz, No. 73-1242

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtROSS, Circuit , with whom STEPHENSON and WEBSTER, Circuit , join, dissenting
Citation498 F.2d 1314
PartiesMINNESOTA PUBLIC INTEREST RESEARCH GROUP, Appellee, v. Earl V. BUTZ, Individually, and as Secretary of Agriculture, et al., Appellants.
Decision Date10 June 1974
Docket Number73-1280,No. 73-1242,73-1282 and 73-1753.,73-1281

498 F.2d 1314 (1974)

MINNESOTA PUBLIC INTEREST RESEARCH GROUP, Appellee,
v.
Earl V. BUTZ, Individually, and as Secretary of Agriculture, et al., Appellants.

Nos. 73-1242, 73-1280, 73-1281, 73-1282 and 73-1753.

United States Court of Appeals, Eighth Circuit.

Submitted February 13, 1974.

Decided June 10, 1974.


498 F.2d 1315
COPYRIGHT MATERIAL OMITTED
498 F.2d 1316
Curtis L. Roy, and Joe A. Walters, Minneapolis, Minn., for appellants

Gerald L. Seck, Minneapolis, Minn., for appellee.

Before MEHAFFY, Chief Judge, and GIBSON, LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, and WEBSTER, Circuit Judges, en banc.

GIBSON, Circuit Judge.

The plaintiff, Minnesota Public Interest Research Group (MPIRG), filed a complaint asking for declaratory and injunctive relief against further logging in the Boundary Waters Canoe Area (BWCA). It also requested application of the Wilderness Preservation System Act of 1964,1 to the management policies of, and to the existing contracts for timber cutting executed by, the United States Forest Service in the BWCA.

The District Court, after a hearing on the merits, enjoined the defendants from logging "in those areas of the active timber sales on the BWCA which are contiguous with the main virgin forest areas of the BWCA pending the Forest Service's completion of its new BWCA Management Plan and accompanying impact statement."2

Crucial to our determination of the issue raised is whether or not the modification of existing contracts for cutting of virgin timber, the extension of some of these contracts, and the supervision of the day-to-day activities in the operation of the timber cutting contracts in the BWCA area constitute major federal action significantly affecting the quality of the human environment within the purview of the National Environmental Policy Act of 1969.3

A further issue held in abeyance by the court is whether the Wilderness Act precludes the Forest Service from allowing any logging operations at all in the BWCA. The District Court, after a plenary hearing, felt that the Forest Service possibly would, in reviewing its entire management policy, forego or prohibit the cutting of timber in the BWCA area, thus mooting this issue ; and if not, the court reserved jurisdiction to pass upon the legal issue of whether the Wilderness Act precludes timber cutting and logging activities in the wilderness area of the BWCA.

The BWAC, located in northern Minnesota, is a unique natural resource with some 1,060,000 acres of lakes, streams, and timber, which along with the adjoining Canadian Quetico-Superior forest forms the only canoe wilderness area in the world. The area contains more than 1,000 lakes larger than 10 acres, either connected by streams or convenient portages that allow for easy canoe travel through the wilderness area.

The BWCA is administered by the United States Forest Service as a Wilderness Area and as a part of the Superior National Forest. The Draft Management Plan of the Forest Service for the BWCA refers to the area as "unique, pristine, endangered, rugged, primitive, beautiful and fragile." Highly prized by many, including plaintiff

498 F.2d 1317
MPIRG, the Wilderness Area affords recreational, scientific, and educational opportunities. It is also highly regarded by others, like the defendant paper and logging companies, who value the thousands of acres of marketable timber it contains

This lawsuit was commenced November 24, 1972, by MPIRG, an association of students at various Minnesota colleges and universities. MPIRG requested a temporary and permanent injunction against any further logging in the BWCA until the Forest Service completes an Environmental Impact Statement (EIS) complying with the requirements of NEPA. There was a separate claim that logging activities should be banned in the BWCA as incompatible with the wilderness values protected by the Wilderness Act.

The defendants4 assert that there has been no major federal action since the effective date of NEPA (January 1, 1970), and further, that MPIRG lacks standing and is guilty of laches. They also argue that logging is specifically provided for in the BWCA by the Wilderness Act. The District Court found that there was major federal action and that MPIRG has standing and was not guilty of laches.

These appeals present a question of the applicability of NEPA to private logging operations carried out pursuant to pre-NEPA Forest Service timber sales within the BWCA. Specifically in question is § 102(2) (C) of NEPA5 that requires the preparation of an EIS for "major Federal actions significantly affecting the quality of the human environment * * *." Should this court affirm the District Court's determination that the Forest Service's actions regarding these timber sales after January 1, 1970, constitute major federal action significantly affecting the quality of the human environment, a further question as to the propriety of the District Court's temporary injunction pending the preparation and filing of the final EIS is presented.

The Superior National Forest contains approximately 3 million acres, some 1,060,000 of which are included in the BWCA. Pursuant to a regulation of the Secretary of Agriculture,6 the BWCA has been divided into two zones, an Interior Zone of some 640,000 acres7 in which timber cutting is not allowed, and a Portal Zone of about 425,000 acres in which timber cutting has been allowed. At the time of suit 11 timber sales were active within the BWCA,8 consisting of

498 F.2d 1318
29,261 acres, on which 5,275 acres remained uncut. These sales had all been made during the period 1959 through 1969, prior to the January 1, 1970, effective date of NEPA

Timber harvesting has been a source of public controversy surrounding the BWCA. In November, 1971, soon after its formation, MPIRG requested the Forest Service to prepare an EIS considering the effects of logging in the BWCA and to halt all logging in the BWCA until the statement was completed. MPIRG was informed that a new BWCA management plan was under consideration and that the EIS being prepared in conjunction with the new plan would be ready in April, 1972. This date was later changed to April, 1973, but to satisfy MPIRG's objections a preliminary environmental analysis covering logging was to be made available in August, 1972, for public review. Dissatisfied with this preliminary analysis, MPIRG attempted again to have the Forest Service suspend logging in the BWCA until the EIS was filed and also requested the Forest Service to compensate the private defendants with timber outside the BWCA. This suggestion was rejected by the Forest Service on November 15, 1972, and MPIRG filed this suit on November 24, 1972.

The activities of the Forest Service concerning these 11 pre-NEPA timber sales fall roughly into three categories —contract extensions, contract modifications, and the administrative actions required by the contracts.

On six of these sales,9 the Forest Service after January 1, 1970, entered into contract extensions which gave the owners additional time to complete cutting on the sales. There was no obligation on the part of the Forest Service to grant these extensions ; the testimony indicated that this was a "routine" practice of the Service, prompted perhaps in part by its knowledge that the original contract periods were not normally expected to afford sufficient time to complete the cutting.

Modifications, changes in the land area in which logging could occur, were negotiated by the Forest Service in 7 of the sales contracts after January 1, 1970.10 Many of these modifications were made for "environmental" reasons. This is some indication that the Forest Service recognized that these timber sales could have a significant impact on the BWCA. Further, the administration of the timber sales contracts required the continual involvement of Forest Service personnel in approving locations for logging roads, logging camps, the marking of sale boundaries on the ground, approving the use of mechanized equipment, and the making of various other approvals and agreements.

No environmental impact statements have been prepared for any of the sales, whether unchanged, modified, or extended after January 1, 1970.11 The position of the Forest Service, adopted by the private defendants in this action, is that there has been no major federal action since the effective date of NEPA. The District Court held otherwise12 and

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enjoined timber cutting on all or portions of seven of the timber sales in question.13

I. MAJOR FEDERAL ACTION

Does the Forest Service's involvement in these timber sales constitute major federal action significantly affecting the quality of the human environment? Section 102(2)(C) requires preparation of an EIS for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." (emphasis added). What constitutes other major federal action is not defined in the Act, nor is the legislative history very illuminating.14 S.Rep.No. 91-296 in discussing Section 102(2) (C) states:

(c) Each agency which proposes any major actions, such as project proposals, proposals for new legislation, regulations, policy statements, or expansion or revision of ongoing programs, shall make a determination as to whether the proposal would have a significant effect on the quality of the human environment. If the proposal is considered to have such an effect, then the recommendation or report supporting the proposal must include * * * those findings required by § 102(2)(C).

The threshold question as to whether there is a major federal action requiring NEPA compliance is not presented in the majority of cases ; there is little question that when the federal government commits millions of dollars to build dams, nuclear power plants, or highways that there is a major federal action. The question presented by the instant case...

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115 practice notes
  • State of Cal. v. Bergland, No. S-79-523.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 8, 1980
    ...527 F.2d 786, 796 (application for approval of mining plan covering 770 acres); Minnesota Pub. Int. Res. Group v. Butz (8th Cir. 1974) 498 F.2d 1314, 1323 (modification of existing contracts for logging in Boundary Waters Canoe Area); Wyoming Outdoor Coordinating Council v. Butz (10th Cir. ......
  • North Carolina Alliance For Transp. Reform Inc v. United States Dep't Of Transp., No. 1:99cv134
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 19, 2010
    ...file a new suit and challenge the ‘adequacy’ of the 713 F.Supp.2d 505 [new] EIS”); see also Minn. Pub. Interest Research Group v. Butz, 498 F.2d 1314, 1325 n. 32 (8th Cir.1974) (finding the injunction would terminate “upon the filing of the final EIS” and that “[a]ny challenge to the adequa......
  • Coleman v. Block, Civ. No. A1-83-47.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • February 17, 1984
    ...asserting its right of redemption. 56 E.g., Minnesota Public Interest Research Group v. Butz, 358 F.Supp. 584, 625 (D.Minn. 1973), aff'd 498 F.2d 1314 (8th Cir.1974); Philadelphia Welfare Rights Organization v. O'Bannon, 525 F.Supp. 1055, 1057 (E.D.Pa.1981). See also Dataphase Systems, Inc.......
  • Cady v. Morton, No. 74--1984
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 19, 1975
    ...possible environmental effects, but the agency will escape compliance with NEPA, a result not to be encouraged. Minnesota PIRG v. Butz, 498 F.2d 1314, 1324 (8th Cir. The public has an interest in compliance with NEPA that should not be impaired lightly. 3 Liberal rules with respect to stand......
  • Request a trial to view additional results
114 cases
  • State of Cal. v. Bergland, No. S-79-523.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 8, 1980
    ...527 F.2d 786, 796 (application for approval of mining plan covering 770 acres); Minnesota Pub. Int. Res. Group v. Butz (8th Cir. 1974) 498 F.2d 1314, 1323 (modification of existing contracts for logging in Boundary Waters Canoe Area); Wyoming Outdoor Coordinating Council v. Butz (10th Cir. ......
  • North Carolina Alliance For Transp. Reform Inc v. United States Dep't Of Transp., No. 1:99cv134
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • May 19, 2010
    ...file a new suit and challenge the ‘adequacy’ of the 713 F.Supp.2d 505 [new] EIS”); see also Minn. Pub. Interest Research Group v. Butz, 498 F.2d 1314, 1325 n. 32 (8th Cir.1974) (finding the injunction would terminate “upon the filing of the final EIS” and that “[a]ny challenge to the adequa......
  • Coleman v. Block, Civ. No. A1-83-47.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • February 17, 1984
    ...asserting its right of redemption. 56 E.g., Minnesota Public Interest Research Group v. Butz, 358 F.Supp. 584, 625 (D.Minn. 1973), aff'd 498 F.2d 1314 (8th Cir.1974); Philadelphia Welfare Rights Organization v. O'Bannon, 525 F.Supp. 1055, 1057 (E.D.Pa.1981). See also Dataphase Systems, Inc.......
  • Cady v. Morton, No. 74--1984
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 19, 1975
    ...possible environmental effects, but the agency will escape compliance with NEPA, a result not to be encouraged. Minnesota PIRG v. Butz, 498 F.2d 1314, 1324 (8th Cir. The public has an interest in compliance with NEPA that should not be impaired lightly. 3 Liberal rules with respect to stand......
  • Request a trial to view additional results
1 books & journal articles
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • April 1, 2015
    ...§5(b) in determining the relevant factors for inding a “major federal action”), with Minnesota Pub. Interest Research Grp. v. Butz, 498 F.2d 1314, 1320 & n.18, 4 ELR 20700 (8th Cir. 1974) (adding in a footnote that the court’s construction of “major federal action” was “basically the positi......

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