Sagebrush Rebellion, Inc. v. Hodel, 84-4371
| Decision Date | 28 May 1986 |
| Docket Number | No. 84-4371,84-4371 |
| Parties | , 16 Envtl. L. Rep. 20,814 SAGEBRUSH REBELLION, INC., Plaintiffs-Appellants, v. Donald P. HODEL, * Secretary of the Interior; Robert Burford, Director of the Bureau of Land Management, United States Department of the Interior; and the United States of America, Defendants-Appellees, and National Audubon Society, et al., Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
R. Norman Cramer, Constance E. Brooks, Mountain States Legal Foundation, Denver, Colo., for plaintiffs-appellants.
John J. Rademacher, Richard L. Drause, Park Ridge, Ill., for amicus American Farm Bureau Federation.
Scot W. Reed, Coeur d'Alene, Idaho, for Intervenor.
Larry Martin Corcoran, Jacques B. Gelin, Robert L. Klarquist, Dept. of Justice, Appellate Section, Land & Natural Resources Div., Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Idaho.
Before WRIGHT, REINHARDT, Circuit Judges, and SOLOMON, ** District Judge
Plaintiffs Sagebrush Rebellion, Inc., a non-profit organization dedicated to the multiple-use management of the public lands, and several groups and individuals interested in the private agricultural development of public lands (hereinafter collectively referred to as "Sagebrush") challenge the Secretary of the Interior's withdrawal 1 of the Snake River Birds of Prey National Conservation Area in southern Idaho, for alleged failure to comply with the notice and hearing requirements of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. Secs. 1701-82 (1982). The district court upheld the Secretary's action. We affirm. 2
The Snake River Canyon in southwestern Idaho provides a habitat for the densest known population in northern America of eagles, hawks, falcons, owls and other birds of prey. Since 1968, the Bureau of Land Management (BLM) has sought to protect that habitat from destruction by agricultural development. The Secretary of the Interior created the 26,000 acre Snake River Birds of Prey Natural Area in 1971. When it became apparent that the birds' habitat extended far beyond the Natural Area, the BLM established a 484,000 acre study area and imposed a moratorium on the disposal under the Carey and Desert Land Acts of federal lands within that area. 3 In 1977, Secretary of the Interior Cecil B. Andrus nearly doubled the study area, and extended the moratorium to 539,000 acres. Finally, in 1979, Secretary Andrus proposed legislation to establish the Snake River Birds of Prey National Conservation Area (Conservation Area), 4 by permanently withdrawing the area from the operation of the public land and mining laws.
The Secretary prepared a Draft Environmental Impact Statement (DEIS) on the proposed legislation and published notices of its availability, pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-47 (1982). 44 Fed.Reg. 39313-14 (July 5, 1979); 44 Fed.Reg. 40129 (July 9, 1979). The notices specified the affected lands, summarized the purpose, and the legal consequences of the withdrawal, and announced upcoming hearings on the DEIS. 5
The DEIS analyzed the environmental and socio-economic impacts of congressional withdrawal of the Conservation Area, and of three alternative actions. One of the alternatives analyzed was administrative withdrawal of the Conservation Area by the Secretary under section 204 of FLPMA, 43 U.S.C. Sec. 1714. The DEIS stated that the impact of administrative withdrawal would be identical to that of congressional withdrawal, since withdrawal of the Conservation Area by either branch of government would have the identical legal effect, with only one exception: whereas the congressional withdrawal would be in perpetuity (subject, of course, to Congress' inherent right to enact legislation to the contrary in the future), FLPMA limits administrative withdrawals to a maximum of twenty years, and makes them subject to congressional review and administrative revocation. See 43 U.S.C. Sec. 1714(a), (c), (f). The protection provided the Conservation Area by administrative withdrawal, therefore, would be somewhat more tenuous than if Congress withdrew the lands. The DEIS did not specify the duration of an administrative withdrawal. Because a congressional withdrawal is permanent, the DEIS advocated that form of action rather than an administrative withdrawal.
Over sixty people testified at the hearings and over three hundred people submitted written comments. The vast majority of commentators addressed the question whether, rather than by what mechanism, to create the Conservation Area. Several of the commentators, however, did distinguish between congressional and administrative withdrawal, and a few advocated the latter action.
In April 1980, Secretary Andrus submitted to Congress a proposed bill to withdraw the Conservation Area, accompanied by a final environmental impact statement (noticed in 45 Fed.Reg. 10046 (Feb. 14, 1980)). Congress never acted on the bill. In November, after President Carter had failed to win re-election, Secretary Andrus exercised his administrative powers under section 204 of FLPMA to withdraw the Conservation Area for a period of twenty years. Public Land Order 5777, 45 Fed.Reg. 78688 (Nov. 26, 1980). 6 The Secretary simultaneously submitted a report on the withdrawal to Congress, pursuant to section 204(c) of FLPMA, 43 U.S.C. Sec. 1714(c). Although section 204(c)(1) establishes a mechanism for a bicameral veto of an administrative withdrawal, Congress took no action under that section.
Plaintiffs initially filed suit in April, 1980 to compel the Secretary of the Interior to withdraw his proposal for legislative enactment of a Conservation Area on the ground that the accompanying environmental impact statement did not comply with NEPA. When Secretary Andrus subsequently withdrew the lands by administrative action, Sagebrush amended its complaint to challenge that action as well; the challenge to the administrative withdrawal was based on the Secretary's alleged failure to follow the notice and hearing procedures of FLPMA, 43 U.S.C. Sec. 1714(b), (h). Sagebrush and the government filed cross-motions for partial summary judgment on the question of the Secretary's compliance with FLPMA. The National Audubon Society and several other groups and individuals with environmental and conservation interests moved to intervene on the side of the government. On appeal, we ordered that their motion be granted. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir.1983). The intervenors then filed their own cross-motion for partial summary judgment. The district court granted the government's and the intervenors' motions and denied Sagebrush's motion, holding that FLPMA's notice and hearing requirements were satisfied by the notice given and hearings held in connection with the legislative proposal to create the Conservation Area, and that, in the alternative, any failure by the Secretary to comply fully with the FLPMA requirements constituted harmless error. The district court then dismissed Sagebrush's NEPA claims pursuant to the stipulation of the parties. Sagebrush appeals on the FLPMA issue only.
We review de novo the district court's entry of summary judgment. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). We may set aside the Secretary's action only if it was "arbitrary, capricious, an abuse of discretion, or ... without observance of procedure required by law." 5 U.S.C. Sec. 706(2)(A), (D) (1982); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). The Secretary's construction of FLPMA is entitled to considerable deference. See Walker v. Navajo-Hopi Indian Relocation Commission, 728 F.2d 1276, 1278 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984). In evaluating whether to set aside the Secretary's action, we take due account of the rule of prejudicial error. 5 U.S.C. Sec. 706 (1982); County of Del Norte v. United States, 732 F.2d 1462, 1467 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 958, 83 L.Ed.2d 964 (1985); Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982).
Section 204(b) of FLPMA requires that the Secretary publish notice of a proposed withdrawal, which publication has the effect of temporarily segregating the lands. 7 Section 204(h) requires that the Secretary hold a hearing on all new withdrawals. 8 Sagebrush argues that the Secretary failed to provide notice of and hold hearings on the administrative withdrawal of the Conservation Area because the NEPA notice and hearings were conducted pursuant to a different statute and were allegedly directed at an allegedly different proposal than administrative withdrawal. Consequently, Sagebrush urges, the Secretary should have held a set of "FLPMA" hearings on the administrative withdrawal of the lands in addition to the previously conducted set of NEPA hearings. Sagebrush considers irrelevant to the Secretary's obligations under FLPMA the facts that (1) the administrative withdrawal of the Conservation Area was identical to congressional withdrawal (with the exception of duration and administrative revocability), and (2) administrative withdrawal of the Conservation Area was under consideration as an alternative to legislative withdrawal in the NEPA hearings. On this appeal we must decide whether FLPMA requires a second notice and hearing on an administrative withdrawal subsequent to a properly noticed and conducted NEPA hearing on a DEIS which analyzed administrative withdrawal as an alternative to a proposed congressional withdrawal of lands involved.
Sagebrush argues that the...
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