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South Dakota v. Andrus

ELR Citation: 10 ELR 20181
Nos. No. 79-1178, 614 F.2d 1190/14 ERC 1166/(8th Cir., 02/12/1980) Aff'd

Affirming the district court, 9 ELR 20128, the Eighth Circuit Court of Appeals rules that the Department of the Interior need not prepare an environmental impact statement (EIS) prior to the issuance of a mineral patent. The court first points out that as the issuance of a mineral patent is a ministerial act under the Mining Law of 1872, it is doubtful whether it would constitute an "action" by the federal government for purposes of the National Environmental Policy Act (NEPA). Non-discretionary actions such as this have generally been held outside the ambit of the EIS requirement. The court bases its decision, however, on the conclusion that granting a patent is not a "major" federal action under NEPA because it is not a federal determination to enable the applicant to begin mining operations. Locators of mining claims may extract minerals without such a patent if they have met the statutory prerequisites. Finally, the court declines to decide whether an EIS may be necessary in connection with subsequent operations after the mineral patent has been issued.

Counsel for Appellent
Lawrence W. Kyte, Ass't Attorney General
State Capitol Bldg., Pierre SD 57501
(605) 773-3215

Counsel for Appellees
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Horace R. Jackson
Lynn, Jackson, Schultz & Lebrun
P.O. Box 8110, Rapid City SD 57701
(605) 342-2592

Counsel for Amicus Curiae Environmental Defense Fund, Inc.
Paula Phillips
Environmental Defense Fund, Inc.
1657 Pennsylvania St., Denver CO 80203
(303) 831-7559

Joined by Bright and Regan,* JJ.