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Sagebrush Rebellion, Inc. v. Hodel

Citation: 16 ELR 20814
No. No. 84-4371, 790 F.2d 760/24 ERC 1921/(9th Cir., 05/28/1986) Aff'd

The court holds that the Secretary of the Interior complied with the notice and hearing requirements of § 204 of the Federal Land Policy and Management Act (FLPMA) when he withdrew public lands for the Snake River Birds of Prey National Conservation Area in Idaho. Secretary of the Interior Cecil Andrus administratively withdrew certain lands for the Conservation Area for 20 years when the 96th Congress adjourned without having acted on a proposed bill that would have withdrawn the same lands permanently. Both methods of withdrawal had been considered as alternatives in the draft environmental impact statement (DEIS) prepared under the National Environmental Policy Act (NEPA) for the proposed Conservation Area. The court first holds that the notices given for the DEIS and accompanying hearings satisfy the notice requirements of FLPMA § 204(b). Although the notices did not state that the Secretary, rather than Congress, might create the Conservation Area or that the lands had been temporarily segregated as required by § 204(b)(1), this error is harmless since the purpose of a § 204(b) notice, to notify the public of a possible administrative withdrawal, has been fulfilled. The same public would have responded to an official notice of proposed administrative withdrawal as did respond to the proposed congressional withdrawal. Moreover, no harm resulted from the Secretary's failure to segregate the lands under § 204(b)(1).

The court next holds that the hearings held pursuant to NEPA on the proposed congressional withdrawal satisfy the hearing requirements of FLPMA § 204(h). The court initially rules that a NEPA hearing may fulfill FLPMA's hearing requirements. Although FLPMA's procedural requirements are to be strictly construed, the fact that the hearings were labelled NEPA and not FLPMA hearings does not resolve the issue of whether plaintiffs received a full and fair opportunity for a hearing on the proposed administrative withdrawal. The court rejects plaintiffs' argument that Congress would not have enacted a hearing requirement in FLPMA if a NEPA hearing were adequate. FLPMA's legislative history does not indicate that Congress considered the question. Even if it had, Congress could not have ensured that the public would always have an opportunity to comment on all administrative withdrawals unless it included a separate hearing requirement in FLPMA, since NEPA hearings on DEISs are only required in certain circumstances. The conclusion that a NEPA hearing may fulfill FLPMA's requirements is supported by caselaw holding that compliance with NEPA's agency consultation requirements satisfies a similar requirement in the Fish and Wildlife Coordination Act. The court then holds that plaintiffs did receive a full and fair opportunity for a hearing on the administrative withdrawal. Plaintiffs' argument that there was no proposed administrative withdrawal at the time of the NEPA hearings fails, since this method of establishing the Conservation Area was one of the proposed agency actions in the DEIS. The court holds that the hearings were adequate on the question of whether to withdraw lands for the Conservation Area, since the impact of a withdrawal would be the same regardless of the method taken to implement it. The court also holds that the hearings were adequate on the question of duration of an administrative withdrawal. Although the DEIS did not discuss duration, the public had the opportunity to address the issue.

[Previous decisions in this case appear at 13 ELR 20928 and 14 ELR 20679.]

Counsel for Plaintiffs-Appellants

R. Norman Cramer, Constance E. Brooks

Mountain States Legal Foundation

1200 Lincoln St., Suite 600, Denver CO 80203

(303) 861-0244

Counsel for Defendants-Appellees

Larry Martin Corcoran, Jacques B. Gelin, Robert L. Klarquist

Land and Natural Resources Division

Department of Justice, Washington DC 20530

(202) 633-2305

Before Wright and Solomon,* JJ.