State of Alaska v. Andrus

• Decision Date: 22 February 1979
• Docket Number: 77-3408,Nos. 77-3169,s. 77-3169
• Citation: 591 F.2d 537
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: , 9 Envtl. L. Rep. 20,137 STATE OF ALASKA & Mauneluk Association, Appellants, v. Cecil D. ANDRUS, Secretary of the Interior, Appellee, v. DEFENDERS OF WILDLIFE et al., Intervenors. STATE OF ALASKA & Mauneluk Association, Appellees, v. Cecil D. ANDRUS, Secretary of the Interior, Defendant, v. DEFENDERS OF WILDLIFE et al., Appellants.

Page 537

591 F.2d 537

14 ERC 1299, 9 Envtl. L. Rep. 20,137

STATE OF ALASKA & Mauneluk Association, Appellants, v. Cecil D. ANDRUS, Secretary of the Interior, Appellee, v. DEFENDERS OF WILDLIFE et al., Intervenors.

STATE OF ALASKA & Mauneluk Association, Appellees, v. Cecil D. ANDRUS, Secretary of the Interior, Defendant, v. DEFENDERS OF WILDLIFE et al., Appellants.

Nos. 77-3169, 77-3408.

United States Court of Appeals, Ninth Circuit.

Feb. 22, 1979.

William T. Council, Asst. Atty. Gen. (argued), Juneau, Alaska, for State of Alaska.

Karin P. Sheldon (argued), Thomas B. Stoel, Jr., Washington, D. C., for Defenders of Wildlife.

James W. Moorman, Robert L. Klarquist (argued) of Dept. of Justice, Washington, D. C., G. Kenneth Gilleland, Tallahassee, Fla., for Secretary of the Interior.

Appeal from the United States District for the District of Alaska.

Before WRIGHT and GOODWIN, Circuit Judges, and JAMESON ^*, District Judge.

GOODWIN, Circuit Judge:

This appeal presents the question whether the Secretary of Interior's nonexercise of executive power (which he may or may not possess) to regulate wildlife on federal land in Alaska requires him to file an environmental impact statement. Because we hold that the nonexercise of power by an executive-branch officer does not call for compliance with NEPA ¹ we do not reach the intriguing questions of statutory construction and application that would lurk in defining the Secretary's power to supersede the State in managing wildlife. We affirm the judgment which declared that the statement was not necessary.

The legal contest has bounced back and forth between the courts of the District of Columbia Circuit and this circuit. In the District of Columbia, on February 4, 1977, Defenders of Wildlife and several other animal-welfare groups (Defenders) filed an action against Cecil D. Andrus, Secretary of Interior. The action prayed the District Court to order the Secretary to halt a program of the State of Alaska in which State-licensed gunmen were killing from the air numbers of wolves that roam federal lands within the State's borders.

The wolf-killing had been designed to relieve pressure upon the caribou herd in the affected region. The caribou population had decreased, according to State estimates, from more than 240,000 in 1970 to about 60,000 in 1976. By killing the wolves, which prey on caribou, and curtailing subsistence hunting of caribou by Alaska natives, the State hoped to reverse the shrinkage of the herd.

Defenders based its theory on the contention that two federal statutes empower the Secretary to close the federal lands to the wolf-kill program: the Federal Land Policy and Management Act of 1976, 43 U.S.C.A. § 1701 Et seq. (1978 Pocket Supp.) (also known as "the BLM Organic Act" and "FLPMA"), and the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 Et seq. (Supp. V 1975). Because the Secretary has the power, Defenders argued, the Secretary was required by NEPA to prepare an environmental impact statement before choosing to exercise or to refrain from exercising the power.

The District Court for the District of Columbia issued a preliminary injunction which compelled the Secretary to order the State to halt the program. The Secretary issued a directive that the State halt the kill. The State stopped killing wolves, and the Secretary appealed the preliminary injunction to the Court of Appeals for the District of Columbia Circuit. That case is now pending.

The State of Alaska was not a party to the D.C. litigation, however, and shortly after the Secretary had the State stop killing the wolves, the State filed its own action this one in the District Court for the District of Alaska.

In this action, the State asked the court to declare that the Secretary had no power to stop the wolf kill. The State also asked the court to hold that even if the Secretary did possess that authority he was not required to prepare an environmental impact statement. In addition to the desired declaratory judgment, the State sought an order that the Secretary "take all steps necessary to rescind" his "request" that the wolf-kill program be halted.

The Secretary, as he had in the District of Columbia case, protested that he had no power to stop the killing; he told the Alaska district court that he had issued his directive to the State only because he had been ordered to do so by the District of Columbia court. Defenders then intervened in the Alaska case, making the same arguments it had made with initial success in the District of Columbia.

On April 11, 1977, the district court in Alaska, on motions for summary judgment, held that the Secretary had the power to halt the wolf-kill program, but that, nonetheless, no environmental impact statement was necessary if he refrained from exercising that power. Other than this declaratory relief, the "final judgment" granted no relief to any party.

The State and Defenders of Wildlife then brought these appeals from the Alaska district court judgment. The State contends that the Secretary has no power to stop the wolf kill. In this stand the State is joined by amici curiae: officials of 11 states and the International Association of Fish and Wildlife Agencies. Meanwhile, Defenders seeks affirmance of the declaration that the Secretary does have the power to stop the killing, but reversal of the ruling that he need not file an environmental impact statement. The Secretary also appealed, but after reversing his earlier stand and "conceding" that he Does have power to stop the wolf kill, he withdrew the appeal.

I.

Before reaching the merits, we note jurisdiction. Defenders suggests that the "final judgment" filed by the district court in Alaska is not a " final decision" on the State's claim within the meaning of28 U.S.C. § 1291, under which jurisdiction is claimed here. Although the document embodying the "final judgment" does not contain an express rejection of the State's prayer for permanent injunctive relief, two orders filed by the district court show that it had rejected injunctive relief. In its orders dated March 16, 1977, and April 11, 1977, the court gave clear evidence of its intent that the "final judgment" of April 11 be the last decision in this case. The opinions show an unwillingness by the Alaska judge to order the Secretary to do anything inconsistent with the injunction from the District of Columbia court. Denial of the permanent injunction sought by the State against the Secretary can fairly be inferred from these documents. Under the "common-sense" approach of Bankers Trust Co. v. Mallis, 435 U.S. 381, 387, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the judgment rendered April 11, 1977, (and from which Defenders of Wildlife appeals) was a "final decision" reviewable by this court.

II.

Under the prior decisions of this court, even if the Secretary had some power under a delegation by Congress to stop the wolf-kill program, his failure to exercise that power in effect, his inaction was not the type of conduct that requires an environmental impact statement.

NEPA mandates that federal agencies file impact statements when they propose to take a leading role in activity affecting the environment. For example, the Federal Aviation Administration, which operates Washington National Airport, was required to file an impact statement before a planned $26-million expansion of that airport to handle booming operations. Virginians for Dulles v. Volpe, 541 F.2d 442 (4th Cir. 1976).

There can be major federal action when the primary actors are not federal agencies, but rather state or local governments, or private parties. Most courts agree that significant federal funding turns what would otherwise be a local project into a major federal action. See Homeowners Emergency Life Protection Committee v. Lynn, 541 F.2d 814 (9th Cir. 1976) (per curiam) (federal disaster-relief funding for municipal dam and reservoir project).

Even when federal funding is absent, some courts find major federal action where federal agencies issue permits, approve plans, or give other "go-ahead" signals. In Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), the court held that the Secretary of Interior should have filed an environmental impact statement before approving a lease of lands by Indians to a private developer. The court cited the Secretary's fiduciary duties over the Indians' land as the source of the major action. A federal statute, 25 U.S.C. § 415, required the Secretary's approval before the lease could become effective, and the lease itself required his approval before the land could be encumbered. But the Secretary's role as "trustee"...