Sierra Club v. Hathaway
| Decision Date | 11 August 1978 |
| Docket Number | No. 75-3216,75-3216 |
| Parties | , 8 Envtl. L. Rep. 20,736 The SIERRA CLUB et al., Plaintiffs-Appellants, v. Stanley K. HATHAWAY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter C. Davis (argued), of Merten & Saltveit, Portland, Or., for plaintiffs-appellants.
Edward J. Shawaker, Atty. (argued), Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before KENNEDY and TANG, Circuit Judges, and JAMESON, * District Judge.
The Sierra Club and the Oregon High Desert Study Group, both non-profit, environmental organizations, appeal from an order of the district court denying their request for a preliminary injunction. In the court below, appellants sought to prevent the Secretary of the Interior from executing lease agreements that would give private parties the right to explore for and commercially produce geothermal steam and associated geothermal resources in the Alvord Desert Known Geothermal Resource Area (KGRA). Alternatively, in the event the leases had already been executed, the Sierra Club asked the district court to restrain any lessee from undertaking any right or privilege granted by his leases.
The appellants based their complaint on the Secretary of the Interior's failure to draft an Environmental Impact Statement (EIS), as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., prior to the execution of the leases. The Sierra Club has standing under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The district court found that the initial step of the exploration phase, "casual use," would not significantly affect the environment and thus concluded that appellants had failed to establish a strong likelihood of success on the merits. The district court denied the injunction but demanded monthly reports detailing the ongoing exploration activities to insure that the environment would not be significantly affected without full compliance with NEPA.
Our review of the record and the federal regulations governing the geothermal development program convinces us that the district court did not abuse its discretion and its order denying the injunction should be affirmed.
The Geothermal Steam Act of 1970, 30 U.S.C. §§ 1001-1025, empowers the Secretary of the Interior to issue leases for the development and utilization of geothermal steam and associated geothermal resources on lands where the United States had reserved rights to the geothermal steam located therein. 30 U.S.C. § 1002. A Known Geothermal Resource Area is defined as:
(A)n area in which the geology, nearby discoveries, competitive interests, and other indicia would, in the opinion of the Secretary, engender a belief in men who 30 U.S.C. § 1001(e). Land leased within a KGRA can only be leased to the "highest responsible qualified bidder." 30 U.S.C. § 1003.
are experienced in the subject matter that the prospects for extraction of geothermal steam or associated geothermal resources are good enough to warrant expenditures of money for that purpose. . . .
Regulations were issued pursuant to the Act, and the responsibility for administering the geothermal leasing program was divided between the Bureau of Land Management (43 C.F.R. Group 3200) and the United States Geological Survey (30 C.F.R. Group 270). 1 In 1974 the Geothermal Steam Act of 1970 was supplemented by the Geothermal Energy Research, Development and Demonstration Act, which directed the federal government to "encourage and assist private industry through Federal assistance for the development and demonstration of practicable means to produce useful energy from geothermal resources with environmentally acceptable processes." 30 U.S.C. § 1101(12). The Act established the Geothermal Energy Coordination and Management Project, which was directed to prepare and oversee a comprehensive national program for the effective development of geothermal energy resources. 30 U.S.C. § 1121.
In October 1973, the Department of the Interior published a programmatic EIS 2 covering the geothermal leasing program. This EIS was exhaustive in its analysis of the environmental implications of geothermal development. According to this EIS, the development and production of geothermal resources involved six phases: exploration, test drilling, production testing, field development, power plant and power line construction, and full-scale operations. For purposes of this appeal, we need only concern ourselves with the exploration phase.
This initial phase encompasses locating and defining commercial geothermal reservoirs and evaluating the impact of possible site-specific geothermal development upon the environment. 3 Exploration operations include, but are not limited to, geophysical operations, drilling of shallow temperature gradient wells, construction of roads and trails, and cross-country transit by vehicle over public lands. 43 C.F.R. § 3209.0-5(a).
Casual use is the first step in the exploration phase and involves practices which do not ordinarily lead to any appreciable disturbance or damage to lands, resources, and improvements. 4 43 C.F.R. § 3209.0-5(d). A lessee is initially prohibited from entering leased lands for any purpose other than casual use, and may undertake further exploration operations only after submitting a detailed plan of operations and obtaining approval from the Geologic Survey. 43 C.F.R. § 3203.6. Among other things, the plan of operations must contain a narrative statement describing the proposed measures to be taken for protection of the environment, including, but not limited to, the prevention or control of (1) fires, (2) soil erosion, (3) pollution of the surface and ground water, (4) damage to fish and wildlife or other natural resources, (5) air and noise pollution, and (6) hazards to public health and safety during lease activities. 30 C.F.R. § 270.34(h).
This regulatory scheme and its limitation of allowing the lessee to undertake only
casual use surveys on the land was critical to the district court's determination that the leasing program for the Alvord Desert would not significantly affect the quality of the environment, at least in the immediate future.
The Alvord Desert Known Geothermal Resource Area is in Harvey County, southeastern Oregon. The Alvord KGRA is a sparsely populated undeveloped desert region (population less than 50 people) with an economy based primarily upon lumber, livestock and recreation. The Alvord site is adjacent to the Steens Mountains, a major scenic recreation area in Oregon. Hot spring sites in the Alvord area are used for recreation campsites, geological study, historical research and mineral water bathing. The Alvord Desert is currently under evaluation for its worth as a roadless, primitive, and/or wilderness area. The Steens Mountains are being considered as the site for a portion of the proposed Desert National Trail similar to the Appalachian and Pacific Crest Trails. Finally, the area is also valuable for hunting, fishing, rock hounding and general recreation use oriented to vehicle access. 5
In January 1975, the Burns District of the Bureau of Land Management prepared an Environmental Analysis Record (EAR) on the Alvord Desert Geothermal Leasing Program, as prescribed by the BLM Manual, part 1791. The EAR catalogued the ecology of the Alvord KGRA and was submitted to the BLM. This analysis served as the basis from which BLM officials could determine whether an EIS was required. BLM Manual, part 1791.25. Their conclusion that an EIS should not be prepared was also based on: (1) the low level of public controversy, (2) the fact that a programmatic EIS had been prepared on the Geothermal Leasing Program, (3) the provision that pre-lease and post-lease exploration, and subsequent plans of operation for surface installations or subsequent well work will be subject to EAR preparation by the BLM, or EAR preparation by the USGS and/or EIS preparation, and (4) the provision that surface protection and rehabilitation requirements may be tailored to specific activities and sites as the activities and sites were identified. 6 The appellants contend this decision is a fundamental violation of NEPA and assert that the district court erred in denying their request for injunctive relief by relying upon the false assumption that NEPA required the agency to look only at the initial impact of the project rather than the overall impact of the entire program. Our review at this juncture is limited to the propriety of the denial of injunctive relief and we intimate no review regarding the merits of the underlying controversy.
At the outset, we note that appellant's alternative remedy, that the district court enjoin the Secretary of the Interior from permitting the lessees to exercise any rights they may have acquired from the leases, raises problems regarding failure to join the lessees as indispensable parties. The lessee's interests in the Alvord KGRA are not distinct and severable, and certainly a court order prohibiting the Secretary from allowing the lessees to undertake any exploration operations pursuant to their leases would have an injurious effect upon their interest. Therefore, the lessees must be considered persons who should have been joined under Rule 19(a), Fed.R.Civ.P. State of Washington v. United States, 87 F.2d 421, 427-428 (9th Cir. 1936).
However, when the judgment appealed from does not in a practical sense prejudicially affect the interests of the absent parties, and those who are parties have failed to object to non-joinder in the trial court, the reviewing court will not dismiss an otherwise valid judgment. Provident Bank v. Patterson, 390 U.S. 102, 110-111, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Continental Insurance...
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