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Del Norte, County of v. United States

ELR Citation: 14 ELR 20522
Nos. Nos. 83-1761 et al., 732 F.2d 1462/21 ERC 1134/(9th Cir., 05/11/1984) Rev'd

The court upholds the Secretary of the Interior's designation of certain California rivers as components of the National Wild and Scenic Rivers System, holding that the Department's violations of two Council on Environmental Quality (CEQ) timing regulations were trivial and insufficient to overturn an otherwise valid agency action. The court holds that although the Department, through the Heritage Conservation and Recreation Service (HCRS), clearly violated 40 C.F.R. §1506.9 by filing the final environmental impact statement (EIS) with the Environmental Protection Agency before distributing it to commenting agencies and making it available to the public, this was a trivial violation, which 40 C.F.R. §1500.3 explicitly states is not to be the basis for an independent cause of action to invalidate agency action under the CEQ regulations. The court rules that the CEQ trivial error rule is analogous to the general rule that insubstantial, nonprejudicial error do not require reversal of administrative decisions. HCRS' early filing led EPA to publish notice of the EIS the same week the EIS was distributed, a violation of 40 C.F.R. §1506.10, which requires notice the week after distribution. The court notes that the only possible significance of this "premature" publication was that a week's delay would have prevented the matter from being decided by the Carter Administration. The purpose of these regulations, rules the court, is to make all pertinent information on proposed actions available for 30 days before final action is taken, and to give interested parties notice of that availability. These requirements were satisfied, since the EIS was fully available on the date of notice publication, and 33 days passed between the publication and the Secretary's decision. The court additionally holds that a false affidavit regarding the above time sequence signed by an HCRS official has no effect on the validity of the agency action.

The court also rejects appellants' contention that the Secretary failed to consider the conclusion of a California state court that these rivers could not, as required by the applicable federal law, be permanently administered under state law. The record indicates that the Secretary noted the state court opinion and answered that court's concerns.

The court reverses the judgment of the district court, 13 ELR 20541.

Counsel for Appellants
Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Counsel for Appellants-Intervenors
Brian E. Gray
Howard, Rice, Nemerovski, Canady, Robertson & Falk
7th Floor, Three Embarcadero Ctr., San Francisco CA 94111
(415) 434-1600

Patricia L. Wells
Environmental Defense Fund, Inc.
1405 Arapahoe Ave., Boulder CO 80302
(303) 440-4901

Counsel for Appellees
Andrew Pincus
Hughes, Hubbard & Reed
1201 Pennsylvania Ave. NW, Washington DC 20004
(202) 626-6200

Alson R. Kemp Jr., James L. Warren
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1000

Edward J. Tiedemann
Kronick, Moskovitz, Tiedemann & Girard
Suite 900, 555 Capitol Mall, Sacramento CA 95814
(916) 444-8920

Before GOODWIN, SCHROEDER, and FARRIS, Circuit Judges.