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Cady v. Morton

Citation: 5 ELR 20445
No. No. 74-1984, 527 F.2d 786/8 ERC 1097/(9th Cir., 06/19/1975)

The Ninth Circuit holds that Bureau of Indian Affairs (BIA) approval of coal leases of 31,000 acres granted by the Crow Tribe to Westmoreland Resources is a "major federal action" despite the purely fiduciary role of BIA in Indian affairs. Finding that an EIS concerning only the initial 770 acre five-year strip mining plan does not fulfill NEPA's requirements, the court directs the lower court to enjoin future operations under the leases until an adequate EIS covering the entire leasing project is prepared for use by the Secretary of BIA in reconsidering approval of the leases. The injunction is not to include operations under the 770 acre strip mining plan, however, because the EIS filed is adequate in all respects except failure to consider the total project. Given the magnitude of undertakings within the 770 acre strip mining plan, approval of each "substantially equivalent" plan is to be considered a "major federal action" which will require a separate EIS. In response to defendant's objection that plaintiffs lack standing under § 10 of the Administrative Procedure Act, the court holds that major federal actions primarily pertaining to Indians are not immune to challenge under NEPA by non-Indians.

Counsel for Plaintiffs
Bruce J. Terris
1908 Sunderland Pl., N.W.
Washington, D.C. 20036

Counsel for Defendants
Otis Packwood U.S. Attorney
Federal Building
Billings, Mont, 59101

George Miller
1600 Three Penn Center
Philadelphia, Pa. 10102

Daniel H. Israel
1506 Broadway
Boulder, Colo. 80302