NEPA: 9th Circuit Rules Aganist Enviros in Two Cases
In the latest legal skirmishes associated with two ongoing natural resource controversies, the Ninth U.S. Circuit Court of Appeals has ruled against environmental groups and in favor of the federal Bureau of Land Management.
In both cases, the environmental groups sought to use the National Environmental Protection Act as a vehicle to gain legal leverage over BLM actions on the east side of the Cascades, and both included proposed land swaps between BLM and a private land exchange. In one case, the Kettle Range Conservation Group sought to delay a swap of land between BLM and a private land broker until more environmental analysis had taken place. In the second case, the Oregon Natural Resources Council sought to halt logging and road construction in eastern Oregon and Washington until an environmental impact statement was completed for a revised regional management plan.
In each case, a different three-judge panel of the Ninth Circuit ruled against the environmental group, saying that the group had not met the procedural requirements imposed by NEPA.
The first case involved Kettle Range's challenge to the so-called "Clearwater" land exchange in eastern Washington. In 1996, the Clearwater Land Exchange Co. approached BLM to propose an exchange of 44 publicly owned parcels totaling 4,500 acres for eight privately owned parcels containing a total of 25,000 acres. (BLM often swaps land of lesser resource value, located closer to urban areas, for more remote land of greater resource value if such a swap would round out the agency's landholdings.) Although the Washington Department of Fish & Wildlife expressed some concern about the wildlife value of the lands BLM would be trading away, the agency conducted an environmental assessment under NEPA and issued a "finding of no significant impact," or FONSI.
Kettle Range sued but was denied a stay of the exchange by U.S. District Court Judge Robert H. Whaley. Within hours of Whaley's decision, BLM conveyed half of the 4,500 acres involved. In May - while the merits of the case were pending before Judge Whaley - BLM conveyed another 1,800 acres. On May 19, Whaley ruled in favor of Kettle Range, concluding that the environmental assessment had serious defects. Whaley ordered an injunction on transfer of the remaining 365 acres of property but denied Kettle Range's request to rescind the earlier transactions. Among other things, Whaley faulted Kettle Range for not seeking to "join" Clearwater Land Exchange - that is, make them a party to the lawsuit - and he questioned the value of a rescission since some of the formerly public land had probably been clear-cut anyway.
Kettle Range appealed to the Ninth Circuit, which denied the environmental group's request for emergency injunctive relief. On appeal, Kettle Range argued that it wasn't necessary to join Clearwater as part of the lawsuit because, among other things, NEPA provides no right of legal action against them; and also because public rights were at stake. While acknowledging the NEPA issue, a three-judge panel writing per curiam declined to grant the motion. "Here, title to the land already transferred has vested in the private parties," the court wrote. "We have no doubt that an order declaring the executed portion of the land exchange void ab initio would 'destroy the legal entitlement of absent parties'. As a result, this appeal is not amenable to the public rights exception. ... We are also concerned that at this point it might be impractical to attempt to unscramble the eggs. Any such effort might produce results that are in fact not equitable."
In a concurring opinion, Judge Stephen Reinhardt noted that Judge Whaley's hearing on the permanent injunction occurred just AFTER the bulk of the land was transferred, meaning much of his analysis had no practical value. "It is important that both private litigants seeking to enforce environmental statutes and judges presiding over environmental cases remain aware at all times of the practical aspects of the litigation," he wrote.
The other case involved whether BLM actions on logging and road construction on the east side of the Cascade Mountains should be halted while BLM and the Forest Service developed an ecosystem management strategy for the entire area, as ordered by the Clinton Administration in 1994. In this case, Clearwater Land Exchange and another property owner were allowed to intervene as defendants with BLM.
The environmentalists argued that BLM should have imposed a moratorium on logging, road construction, and land exchanges while the ecosystem management strategy was being prepared and an environmental impact statement under NEPA was being done, in order to preserve possible alternatives that might be identified in the EIS. Based on the recommendations of a magistrate judge, Chief Judge Michael R. Hogan of the U.S. District Court in Oregon dismissed the environmentalists' case. The environmentalists appealed but the Ninth Circuit affirmed Hogan's dismissal.
The crux of the environmentalists' argument was that BLM's decision not to institute a moratorium constituted a final agency action under the Administrative Procedures Act, thus creating a "challengeable" action under NEPA. Writing for a three-judge panel, Judge Arthur Alarcon concluded that this argument did not hold water. The environmentalists, Alarcon wrote, "cannot point to a deliberate decision by BLM to act or not to take action. Therefore, the district court did not err in finding that BLM's failure to implement a moratorium was not a final agency action."
The environmentalists also argued that it could file a lawsuit because BLM had failed to take required action under both NEPA and the Federal Land Policy Management Act. But the court again rejected this argument.
"The Eastside EIS will likely result in new data requiring at least an evaluation of the current RMPs (Resource Management Plans)," Alarcon wrote. "NEPA provides no guidance, however, as to the status of the existing plans. In this case, because the Eastside EIS will likely lead to some revisions of current RMPs, it is reasonable to conclude that the RMPs are existing program statements for the purposes of NEPA. The fact that revisions of other RMPs are not necessarily current does not change this result." Therefore, he concluded, the environmentalists have "failed to point to any clear statutory action for purposes of the Administrative Procedures Act." And, he added, the environmentalists had "not identified a clear duty under NEPA or FLPMA with which BLM must comply." Therefore, he said, no "challengeable action" had been taken.
Kettle Range Conservation Group v. Bureau of Land Management, No. 98-35516, 98 Daily Journal D.A.R. 7855 (issued July 20, 1998).
For Kettle Range: Marianne Dugan, Western Environmental Law Center, Portland.
For BLM: James R. Shively, Assistant U.S. Attorney, Spokane.
For Clearwater Land Exchange: Paul A. Turcke, Moore & McFadden, Boise.
ONRC Action v. BLM, No. 97-35467, 98 Daily Journal D.A.R. 8125 (issued July 30, 1998).
For ONRC Action: Marianne Dugan, Western Environmental Law Center, Eugene.
For BLM: Ellen J. Durkee, U.S. Department of Justice, Washgton, D.C.
For Clearwater Land Exchange: Paul A. Turcke, Moore & McFadden, Boise.