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Sierra Club v. Hathaway

Citation: 8 ELR 20736
No. No. 75-3216, 579 F.2d 1162/12 ERC 1062/(9th Cir., 08/11/1978)

The Ninth Circuit affirms a lower court's refusal to issue a preliminary injunction against the execution of leases for the exploration for and commercial production of geothermal steam in the Alvord Desert of eastern Oregon. The district court correctly concluded that plaintiffs failed to establish a strong likelihood of success on the merits of their claim that the Secretary of the Interior illegally failed to prepare an environmental impact statement (EIS) prior to execution of the leases. The "casual use" activities that are allowed during the initial step of the exploration phase, such as construction of roads and trails, conducting of geophysical surveys, and drilling of shallow wells, do not entail substantial adverse environmental effects. Noting that a programmatic EIS has already been prepared for the national Geothermal Leasing Program, the court finds that site-specific development under the program has yet to reach the stage at which it amounts to a proposal for major federal action for which an EIS is required. The court also determines that the requirements in the Department's regulations for environmental analysis, along with the district court's order requiring submission by the agency of monthly reports on all exploration activities being undertaken, indicate that the leasing program will not be allowed to proceed into advanced phases without full compliance with the National Environmental Policy Act.

Counsel for Plaintiffs-Appellants
Charles J. Merten, Peter C. Davis
Merten & Saltveit
117 S. W. Taylor, Suite C, Portaldn OR 97204
(503) 227-3157

Counsel for Defendants-Appellees
Carl Strass, Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2720

Before KENNEDY and TANG, Circuit Judges, and JAMESON,* District Judge.