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Conner v. Burford

ELR Citation: 18 ELR 21182
Nos. Nos. 85-3929 et al., 848 F.2d 1441/(9th Cir., 07/01/1988) opinion superseded

The court holds that the Bureau of Land Management and the Forest Service violated the National Environmental Policy Act (NEPA) by selling oil and gas leases on national forest land in Montana without preparing an environmental impact statement (EIS), and that the sale of the leases without a comprehensive biological opinion encompassing the impact of post-leasing activities on threatened or endangered species violated the Endangered Species Act (ESA). The court first holds that the government did not violate NEPA by selling leases containing "no surface occupancy" (NSO) stipulations without preparing an EIS. The sale of an NSO lease is not an irreversible and irretrievable commitment of resources that could have a significant impact on the environment, since these leases absolutely prohibit disturbance of the surface without specific government approval and government evaluation of surface-disturbing activity on NSO leases must include consideration of the potential for further development and cumulative impacts. The court holds, however, that the government's sale of leases not containing NSO stipulations without an EIS did violate NEPA, agreeing with the District of Columbia Circuit in Sierra Club v. Peterson, 13 ELR 20888. Although the mitigation stipulations in non-NSO leases permit regulation of surface-disturbing activities, they do not preclude lessees from engaging in activities such as road building and drilling that could have significant adverse effects on the environment. The government's authority to regulate these activities does not reduce their potential impact to insignificance. If the government is concerned that the uncertainty inherent in oil and gas exploration impedes the preparation of an EIS without a site-specific proposal, it has the option of selling NSO rather than non-NSO leases.

The court holds that the government violated §7 of the ESA when it sold the leases without preparing comprehensive biological opinions on the effect of oil and gas activities on threatened and endangered species. Following the District of Columbia Circuit's decision in North Slope Borough v. Andrus, 10 ELR 20832, the court holds that the "agency action" for which a biological opinion must be prepared includes leasing and all post-leasing activities through production and abandonment. The court holds that the biological opinions prepared in this case by the Fish and Wildlife Service (FWS) violated the requirements of §7(b), since they addressed the effects of only the leasing stage. The court holds that FWS also violated §7(a) by failing to utilize the best scientific data available to render comprehensive biological opinions. FWS failed to address post-leasing activities on the grounds that it had insufficient information pertaining to the specific location and extent of oil and gas activities, but extensive information on the behavior and habitat of the species in the areas covered by the leases was available. Incomplete information does not excuse the failure to comply with the requirement that biological opinions be prepared using the best information available. The court holds that stipulations in each lease requiring the government to examine the potential for harm to listed species prior to the start of surface-disturbing activities do not take the place of a comprehensive biological opinion addressing the entire agency action. Such incremental-step consultation is not consistent with the statute or the case law. In a note, the court observes that this holding is not inconsistent with its holding that the issuance of NSO leases does not constitute an irretrievable commitment of resources under NEPA. NEPA is procedural only, whereas the ESA has the important substantive mandate of protecting threatened and endangered species. The ESA's strict substantive provisions justify more stringent enforcement of its procedural requirements.

The court holds that lessees in the areas in question are not indispensable parties within the meaning of Federal Rule of Civil Procedure 19. The court holds that although the lessees are necessary parties, this action falls within the public rights exception to the traditional joinder rules, since the litigation does not purport to adjudicate the rights of the lessees, but seeks to enforce the public's right to the government's compliance with NEPA and the ESA. The court holds that the absent lessees' due process rights were not violated, since the district court did not actually set aside the leases and thus did not destroy existing property rights. The court holds that the lessees, who were permitted to intervene on appeal, have robustly represented the interests of the entire lessee class during the appeal and were adequately represented by the government below. Finally, the court holds that laches does not apply and plaintiffs' claims are not moot.

One judge dissents on the issue of whether a biological opinion addressing the leasing stage only can take the place of a comprehensive opinion dealing with the entire agency action.

[The court's earlier superseded opinion is published at 18 ELR 20379. The district court opinion is published at 15 ELR 20608.]

Counsel are listed at 18 ELR 20379.

Before Goodwin and Wallace, JJ