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Alumet v. Andrus

ELR Citation: 9 ELR 20710
Nos. No. 78-1546, 607 F.2d 911/13 ERC 1538/(10th Cir., 10/04/1979)

The Tenth Circuit Court of Appeals holds that the Bureau of Land Management (BLM) has authority to require a private party to pay part of the cost of preparing an environmental impact statement (EIS) in connection with processing an application for a right-of-way over public lands. The court of appeals notes that BLM bases its assertion of reimbursement authority not on the Independent Offices Appropriation Act but on the Federal Land Policy Management Act of 1976. The trial court wrongly concluded that §1734(b) of the latter statute, empowering the agency to recoup reasonable costs associated with processing right-of-way application, including specifically the cost of EIS preparation, was negated by a subsequent provision arguably indicating that private applicants are not to be charged for services that benefit the general public rather than the applicant exclusively. The court of appeals rules that an EIS does not as a matter of law inure solely to the benefit of the general public, and part of the cost of preparing it may thus be assessed against the applicant. The case is remanded for further proceedings.

Counsel for Plaintiff-Appellee
Francis M. Shea, Richard T. Conway, James R. Bieke
Shea & Gardner
Walker Bldg., Washington DC 20005
(202) 737-1255

Bryant O'Donnell, James R. McCotter
Kelly, Stansfield & O'Donnell
990 Public Service Co. Bldg., Denver CO 80202
(303) 825-3534

Counsel for Defendants-Appellants
Peter R. Steenland, Jr., Neil T. Proto; Sanford Sagalkin, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Paul Smyth
Office of the Solicitor
Department of the Interior, Washington DC 20240
(202) 343-4036

McWilliams, J. (joined by Breitenstein and Doyle, JJ.)