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Alaska v. Carter

Citation: 8 ELR 20903
No. No. A78-291, 462 F. Supp. 1155/12 ERC 1486/(D. Alaska, 11/27/1978)

The court rejects plaintiff's motions for a temporary restraining order and a preliminary injunction against closure of the comment period on the Interior Department's draft environmental impact statement (EIS) supplement on federal disposition of the Alaska National Interest Lands and the taking of any final administrative actions regarding those lands.The EIS supplement was issued after Congress failed to enact legislation protecting the Alaska lands before adjourning, and it outlines options for the President and the Secretary of the Interior for the taking of administrative actions under several statutes to protect the lands. The court decides that plaintiff is unlikely to succeed on the merits of its claims regarding National Environmental Policy Act (NEPA) violations. Presidential actions proclaiming national monuments under the Antiquities Act are not subject to the EIS requirement of NEPA. Furthermore, advice to the President from the Secretary of the Interior regarding such use of Antiquities Act authority is in turn exempt from NEPA through operation of the Opinion Clause of the Constitution. Nor do emergency withdrawals under § 204(e) of the Federal Land Policy and Management Act require an EIS. Because, however, there is a substantial probability that the remaining sources of authority to make non-presidential, non-emergency withdrawals envision "major Federal actions" under NEPA, the court must address the adequacy of the comment period. The EIS supplement describes only insignificant modifications of the actions described in the original 1974 EIS; thus, it is properly considered a supplement and not an independent document. Under Council on Environmental Quality (CEQ) guidelines, comments on supplemental statements need not be solicited in the manner required for independent EISs; rather, the nature of the commenting process is left to the discretion of the agency with the advice of CEQ. The court concludes that the Interior Department's decision to provide an abbreviated 25-day commenting period and CEQ's endorsement of this decision constitute reasonable exercises of discretion in light of the need to expedite the decision-making process.

Counsel for Plaintiff
Avrum M. Gross, Attorney General; Thomas E. Meacham, Ass't Attorney General
420 L St., Suite 100, Anchorage AK 99501
(907) 276-3550

Counsel for Defendants
Alexander O. Bryner, U.S. Attorney
P.O. Box 680, Anchorage AK 99510
(907) 227-1491

James W. Moorman, Ass't Attorney General; Kathryn A. Oberly, Cynthia L. Pickering, Steven A. Herman, James E. Brookshire
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Craig Ritchey, Donald Barry, Thomas Lundquist, Molly Ross
Office of the Solicitor
Department of the Interior, Washington DC 20240
(202) 343-4423