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Bob Marshall Alliance v. Hodel

ELR Citation: 18 ELR 21152
Nos. Nos. 86-4014, -4019, 852 F.2d 1223/(9th Cir., 08/01/1988) Aff'd in part, rev'd in part, & remanded

The court holds that the issuance of oil and gas leases allowing some surface disturbance in a potential wilderness area must be preceded by preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), that the no-action alternative must be considered even for leases that do not require an EIS, and that the Endangered Species Act (ESA) requires a comprehensive biological opinion evaluating the effects of the leases and all post-leasing activities on threatened and endangered species. The Bureau of Land Management had issued a total of 19 leases in the Deep Creek Further Planning Area in Montana, an area that received a high wilderness rating under the Forest Service's roadless area review process but which also had a high potential for natural gas resources. Following its decision in Connor v. Burford, 18 ELR 21182, the court first holds that an EIS is not required prior to issuance of non-surface occupancy (NSO) leases, since NSO leases absolutely prohibit surface disturbance in the absence of specific government approval and thus do not constitute an irreversible and irretrievable commitment of resources. As in Connor, however, non-NSO leases cannot be sold without preparation of an EIS.

The court holds that issuance of the leases without preparation of a comprehensive biological opinion as to the effects of the leases and of all post-leasing activities on threatened and endangered species violated the ESA. Although the Fish and Wildlife Service had issued a biological opinion concluding that the sale of the leases would not threaten species in Deep Creek, it did not make any determinations beyond the initial leasing state, and Connor held that the effects of post-leasing activities must be considered. Stipulations in the leases stating that surface-disturbing activities may be restricted if they would have a detrimental effect on endangered species or their habitats do not take the place of a comprehensive biological opinion.

The court holds that the federal agencies are required to consider the alternative of not issuing any oil and gas leases in Deep Creek, even for the NSO leases for which no EIS is mandated. Informed and meaningful consideration of alternatives, including the no-action alternative, is an integral part of NEPA, even where a proposed action does not trigger the EIS process. The consideration of alternatives requirement is contained in a separate subsection from the EIS subsection, and thus constitutes an independent requirement. The consideration of alternatives requirement is also broader than the EIS requirement, since it applies whenever an action involves unresolved conflicts as to the proper use of resources. This may occur well before the irretrievable commitment of resources that triggers the EIS requirement. The sale of the Deep Creek leases, both NSO and non-NSO, involves such unresolved conflicts, since issuance of the leases may affect Deep Creek's suitability for wilderness designation. The court rejects the Forest Service's argument that a decision by it not to issue oil and gas leases in the area would be an unlawful administrative withdrawal of public lands from mineral leasing, since the Mineral Leasing Act gives the Secretary of the Interior discretion to determine which lands are to be leased.

[The district court's opinion is published at 16 ELR 20759.]

Counsel for Plaintiffs-Appellees
Stephan C. Volker
Sierra Club Legal Defense Fund, Inc.
204 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants-Appellants
J. Carol Williams
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before Canby Jr. and Beezer, JJ