Defenders of Wildlife v. Andrus
Citation: 10 ELR 20163
No. No. 79-1410, 627 F.2d 1238/17 ERC 1562/(D.C. Cir., 02/05/1980) Rev'd
The District of Columbia Circuit Court of Appeals reverses a district court order that granted a preliminary injunction prohibiting the Secretary of the Interior from allowing a state-sponsored aerial wolf hunt to begin on certain federal land in Alaska until an environmental impact statement (EIS) had been prepared under the National Environmental Policy Act (NEPA). The court of appeals rules that the district court's order was based on an erroneous application of NEPA's requirement. The language of §102(2)(C) of the Act and portions of several Supreme Court opinions which have construed it indicate that no EIS need be prepared where, as here, a federal agency has made no proposal to take action. Nor does a federal agency's failure to prevent action by a private party or state or local government make that action federal for NEPA purposes. A review of the relevant case law shows that some "overt act" by the agency in furtherance of the project is necessary to a finding that there has been federal action within the meaing of NEPA. To hold otherwise would impair the statute and impose upon federal agencies the impossible obligation of preparing an EIS every time an agency has the power to act but does not do so. The court of appeals rules further that the Federal Land Policy and Management Act of 1976 (FLPMA) does not place upon the Secretary a non-discretionary duty to prevent the wolf hunt on federal lands pending environmental analysis. On the contrary, FLPMA explicitly reaffirms the traditional allocation to the states of the primary responsibility for the management of wildlife programs within their boundaries. The Act provides the Secretary with only limited discretionary authority to supersede a state program and his failure to exercise this power does not give rise to an obligation to prepare an EIS under NEPA.
Counsel for Plaintiff-Appellees
Karin P. Sheldon, Gregory A. Thomas, Thomas B. Stoel, Jr.
Natural Resources Defense Council, Inc.
1735 I St. NW, Suite 600, Washington DC 20006
Counsel for Defendant-Appellants
Dirk D. Snel, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Before: McGOWAN, LEVENTHAL* and MacKINNON, Circuit Judges.