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Trustees for Alaska v. Hodel

Citation: 17 ELR 20323
No. No. 86-3738, 806 F.2d 1378/(9th Cir., 12/23/1986) Aff'd

The court rules that the submission of a report to Congress by the Secretary of the Interior (Secretary) under § 1002(h) of the Alaska National Interest Lands Conservation Act (ANILCA) requires prior public review and comment under the National Environmental Policy Act (NEPA). The report required under ANILCA (the 1002 report) must contain specific information about potential oil and gas production and fish and wildlife within the coastal plain of the Alaska National Wildlife Refuge; recommend possible exploration, development, and production of oil and gas within the coastal plain; and recommend what additional legal authority would be necessary to protect fish and wildlife if the recommended development were to take place. The Secretary had decided to submit also a legislative environmental impact statement (LEIS), a modified EIS created for legislative purposes. The court first holds that plaintiffs, a coalition of citizens groups, have standing to challenge agency violations of procedural rights for public review under NEPA, in this case to review the 1002 report and the LEIS. The court then holds that the case is ripe because the disagreement over whether public comment is available is concrete and primarily a legal question. Moreover, waiting until Congress acts upon the report would impose a substantial hardship on plaintiffs, since at that point plaintiffs will lose any right to comment on the draft LEIS at the administrative level.

Turning to the merits, the court holds that NEPA's procedural requirements provide plaintiffs the right to comment on the 1002 report and LEIS. The court holds that the 1002 report is a "study process" for which comment is required under NEPA regulations. The statute sets forth detailed research requirements for the report and establishesan extended time period for the Secretary to prepare the report, much as other studies expressly designated as study processes under the regulations. Moreover, the LEIS is not excepted from NEPA's public comment requirements providing for an accelerated schedule for legislative proposals, since ANILCA specified a set time within which the 1002 report was to be prepared. The court declines to award plaintiffs attorneys fees under the Equal Access to Justice Act because the Secretary's position, although incorrect, was at all times justified. A dissent would hold that the 1002 report is not a study process for which public comment is required under applicable NEPA regulations.

[The district court's opinion appears at 16 ELR 20507].

Counsel for Defendants-Appellants
Regina R. Belt
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2764

Counsel for Plaintiffs-Appellees
Robert Adler
Trustees for Alaska
725 Christensen Dr. #4, Anchorage AK 99501
(907) 276-4244

Before Sneed and Kennedy, JJ.