State of S.D. v. Andrus, No. 79-1178

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore BRIGHT and HENLEY, Circuit Judges, and REGAN; HENLEY
Citation614 F.2d 1190
Parties, 10 Envtl. L. Rep. 20,181 STATE OF SOUTH DAKOTA, Appellant, v. Cecil D. ANDRUS, as Secretary of United States Department of Interior; Joseph W. Goss, Anne Poindexter Lewis, and Martin Ritvo, as Administrative Judges of the United States Department of Interior, Interior Board of Land Appeals; George L. Turcott, as Acting Director of the United States Department of Interior, Bureau of Land Management; the United States Department of Interior; and Pittsburgh Pacific Company, Appellees.
Decision Date12 February 1980
Docket NumberNo. 79-1178

Page 1190

614 F.2d 1190
14 ERC 1166, 10 Envtl. L. Rep. 20,181
STATE OF SOUTH DAKOTA, Appellant,
v.
Cecil D. ANDRUS, as Secretary of United States Department of
Interior; Joseph W. Goss, Anne Poindexter Lewis, and Martin
Ritvo, as Administrative Judges of the United States
Department of Interior, Interior Board of Land Appeals;
George L. Turcott, as Acting Director of the United States
Department of Interior, Bureau of Land Management; the
United States Department of Interior; and Pittsburgh Pacific
Company, Appellees.
No. 79-1178.
United States Court of Appeals,
Eighth Circuit.
Submitted Sept. 13, 1979.
Decided Feb. 12, 1980.

Page 1191

Lawrence W. Kyte, Asst. Atty. Gen., Pierre, S. D., for appellant; Mark V. Meierhenry, Atty. Gen., and Roxanne Giedd, Asst. Atty. Gen., Pierre, S. D., on the brief.

Paula C. Phillips, Denver, Colo., for amicus curiae, Environmental Defense Fund, George W. Pring, Denver, Colo., on the brief.

Carl Strass, Atty., Dept. of Justice, Washington, D. C., for appellee, Federal; James W. Moorman, Asst. Atty. Gen., Washington, D. C., Robert D. Hiaring, U. S. Atty., Sioux Falls, S. D., Dirk D. Snel, Gerald S. Fish, Attys., Washington, D. C., on the brief.

Horace R. Jackson, Lynn, Jackson, Shultz & Lebrun, Rapid City, S. D., for appellee, Pittsburgh Pac. Co.

Mary Jane C. Due, Washington, D. C., filed brief for amicus curiae American Mining Congress.

Jeff Masten and Sam W. Masten, Canton, S. D., filed brief amicus curiae.

Before BRIGHT and HENLEY, Circuit Judges, and REGAN, Senior District Judge. *

HENLEY, Circuit Judge.

This is an appeal from a judgment entered by The Honorable Andrew W. Bogue of the United States District Court for the District of South Dakota dismissing the State of South Dakota's suit in which the State sought declaratory and injunctive relief to compel the United States Department of Interior to prepare an Environmental Impact Statement (EIS) prior to its issuance of a mineral patent to the Pittsburgh

Page 1192

Pacific Company (Pittsburgh). On appeal the State contends that the district court erred and asks us to reverse and remand this case for a trial on the merits. After careful review of the district court's judgment, we affirm.
I

Pittsburgh filed an application under the General Mining Act of 1872, 30 U.S.C. § 21 et seq., for a mineral patent to twelve contiguous twenty acre mining claims located within the Black Hills National Forest in Lawrence County, South Dakota. Pittsburgh claimed discovery of some 160 million tons of relatively low grade iron ore and sought a mineral patent covering the discovery lands. Pittsburgh proposed to mine 96 million tons of the ore through open pit mining at an annual rate of approximately seven million long tons a year. The general plan of operation also included processing the best of this ore into hard pellets as well as loading these pellets into railroad cars for shipping.

In 1971, however, Pittsburgh's application for a mineral patent was contested, at the request of the United States Forest Service, by the Bureau of Land Management. The Bureau contended that Pittsburgh had not discovered a valuable mineral deposit under the 1872 Mining Act. The Administrative Law Judge nonetheless dismissed the complaint and approved the mineral patent.

The Bureau then appealed the decision to the Interior Board of Land Appeals alleging that the Administrative Law Judge erred in his geological and economic analysis in determining whether Pittsburgh had discovered a "valuable" deposit. In addition, the State of South Dakota petitioned to intervene and was permitted to file an amicus brief in which the State argued, inter alia, that the Administrative Law Judge had not given proper consideration to the cost of compliance with environmental quality statutes. Recognizing that Pittsburgh's proposed mining project would take 240 to 1,140 acres from a national forest and discard approximately 2.3 million tons of waste annually, the State argued that the Secretary must prepare an EIS before a mineral patent could issue. The Board determined that an EIS need not be prepared prior to the issuance of a mineral patent for these claims. United States v. Pittsburgh, 30 IBLA 388 (1977). The Board, however, set aside the decision of the Administrative Law Judge on other grounds and remanded the case for further hearings with respect to the expense of complying with environmental laws as well as any other issue which might arise.

Subsequently, the State filed an original action in federal district court seeking to compel preparation of an EIS prior to the issuance of a mineral patent naming as defendants the United States Department of the Interior and Pittsburgh. Both defendants moved to dismiss contending the issuance of a mineral patent is not a major federal action which requires an EIS, and Judge Bogue granted the motion. South Dakota v. Andrus, 462 F.Supp. 905 (D.S.D.1978).

II

The issue on this appeal is whether the United States Department of the Interior is required by § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(C) to file an EIS prior to the issuance of a mineral patent. 1

Page 1193

Our starting point is, of course, the statutory language. Section 102(2)(C) provides in part that an EIS is required for "major Federal actions which significantly affecting the quality of the human environment." 2 Applied to this case, § 102(2)(C) mandates the filing of an EIS if (1) the issuance of a mineral patent is an "action" within the meaning of the provision, and (2) the alleged federal action is "major" in the sense that it significantly affects the quality of the human environment.

A

We turn first to the question whether the granting of a mineral patent constitutes an "action" within the meaning of NEPA. As the district court noted, it is well established that the issuance of a mineral patent is a ministerial act. Both the Supreme Court, in a series of decisions in the early part of this century, Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 318-19, 50 S.Ct. 103, 105, 74 L.Ed. 445 (1929); Cameron v. United States, 252 U.S. 450, 454, 40 S.Ct. 410, 64 L.Ed. 659 (1920); Roberts v. United States, 176 U.S. 221, 231, 20 S.Ct. 376, 379, 44 L.Ed. 443 (1900), and, more recently, the Interior Board of Land Appeals, United States v. Kosanke Sand Corp., 12 IBLA 282, 290-91 (1973); United States v. O'Leary, 63 ID 341 (1956), 3 have so concluded.

Ministerial acts, however, have generally been held outside the ambit of NEPA's EIS requirement....

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40 practice notes
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • 15 Marzo 2019
    ..., 877 F.3d at 855–58 (describing withdrawal authority and process).241 Dkt. 54-1 at 21 (quoting Dkt. 36-9). Cf. South Dakota v. Andrus , 614 F.2d 1190, 1193–94 (8th Cir. 1980) (holding that nondiscretionary approval of a mineral patent under the Mining Act a ministerial action, and thus not......
  • Granite Rock Co. v. California Coastal Com'n, No. C-83-5137-WWS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 21 Mayo 1984
    ...the government has no choice but to pass title upon tender of payment and procedural compliance, see South Dakota v. Andrus, 614 F.2d 1190, 1193 n. 3 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980) ("the actions taken by the Secretary of the Interior in processing......
  • Barnett v. Dist. of Col. Dept. of Emp. Serv., No. 83-1340.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 8 Mayo 1985
    ...734 F.2d 347, 355 (8th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985); State of South Dakota v. Andrus, 614 F.2d 1190, 1192 n. 1 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 8......
  • High Country Citizens Alliance v. Clarke, No. 05-1085.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 21 Julio 2006
    ...the body of judicial history available, if only for the sake of completeness. 14. The dissent urges reliance on South Dakota v. Andrus, 614 F.2d 1190 (8th Cir.1980), strongly implying that the State (without an ownership interest) was permitted to assert its rights in a challenge to a paten......
  • Request a trial to view additional results
40 cases
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • 15 Marzo 2019
    ..., 877 F.3d at 855–58 (describing withdrawal authority and process).241 Dkt. 54-1 at 21 (quoting Dkt. 36-9). Cf. South Dakota v. Andrus , 614 F.2d 1190, 1193–94 (8th Cir. 1980) (holding that nondiscretionary approval of a mineral patent under the Mining Act a ministerial action, and thus not......
  • Granite Rock Co. v. California Coastal Com'n, No. C-83-5137-WWS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 21 Mayo 1984
    ...the government has no choice but to pass title upon tender of payment and procedural compliance, see South Dakota v. Andrus, 614 F.2d 1190, 1193 n. 3 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980) ("the actions taken by the Secretary of the Interior in processing......
  • Barnett v. Dist. of Col. Dept. of Emp. Serv., No. 83-1340.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 8 Mayo 1985
    ...734 F.2d 347, 355 (8th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985); State of South Dakota v. Andrus, 614 F.2d 1190, 1192 n. 1 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 8......
  • High Country Citizens Alliance v. Clarke, No. 05-1085.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 21 Julio 2006
    ...the body of judicial history available, if only for the sake of completeness. 14. The dissent urges reliance on South Dakota v. Andrus, 614 F.2d 1190 (8th Cir.1980), strongly implying that the State (without an ownership interest) was permitted to assert its rights in a challenge to a paten......
  • Request a trial to view additional results

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