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Bob Marshall Alliance v. Watt

ELR Citation: 16 ELR 20759
Nos. No. CV-82-015-GF, 685 F. Supp. 1514/(D. Mont., 05/27/1986)

The court holds that the Departments of Agriculture and the Interior violated the National Environmental Policy Act (NEPA), their own regulations, and the Endangered Species Act (ESA) by failing to comprehensively analyze the effects of oil and gas leases on the Deep Creek Further Planning Area of the Lewis and Clark National Forest, a potential wilderness area. After establishing that the reasonableness standard governs its review of an agency's decision not to prepare an environmental impact statement (EIS), the court holds that defendants' failure to prepare an EIS was unreasonable. The court holds that the mitigation measures contained in stipulations to the leases do not completely compensate for every possible environmental impact. The Forest Service's own environmental assessment concludes that exploration activities alone will substantially reduce the wilderness value of the Deep Creek Area. In addition, the no-surface-occupancy stipulation, applicable to 75 percent of the leased area, should not be used to circumvent the EIS requirement. The court next rejects defendants' argument that an EIS should not be required until lessees file specific applications for development. The court, rejecting this call for phased environmental review, holds that the critical decision for review is the decision to issue the leases, and that NEPA mandates an inquiry into the site-specific consequences of exploration and development before this critical decision is made. The court holds that later site-specific analysis does not satisfy NEPA's requirement to analyze the cumulative impacts of the leasing program. The court holds that defendants violated NEPA by failing to sufficiently analyze the alternative of no leasing in the area to preserve it for possible future wildlife designation. The analysis of the no leasing alternative must be completed during the pre-leasing stage, the only time that this alternative remains viable.

The court holds that the Forest Service violated its regulations implemeting NEPA by failing to make a finding of significant impact and prepare an EIS for the leasing program. The effect of oil and gas exploration and development on the Deep Creek Area is highly controversial within the meaning of these regulations. Finally, the court holds that defendants violated the ESA by failing to gather species and habitat data sufficient to make an informed biological assessment of the effects of the leasing program. The biological opinion prepared by the Fish and Wildlife Service, which concluded that the issuance of the leases was not likely to jeopardize species with critical habitat in the area, was inadequate because it was limited to analysis of lease issuance. The court rejects defendants' plan to conduct further study on the effects of each setp of the oil and gas development process as they arise, noting that it must give the requirements of the ESA priority over the primary missions of the agencies. The court enjoins defendants from issuing oil and gas leases in the Deep Creek Area pending compliance with NEPA, Forest Service regulations, and the ESA.

Counsel for Plaintiffs
Stephen C. Volker
Sierra Club Legal Defense Fund, Inc.
2044 Filmore St., San Francisco CA 94115
(415) 567-6100

Karin P. Sheldon
Sierra Club Legal Defense Fund, Inc.
1600 Broadway St., Ste. 1600, Denver CO 80202
(303) 863-9898

James A. Patten
Patten Law Firm
Ste. 2101, Sheraton Plaza, 27 N. 27th St., Billings MT 59101
(406) 252-6782

Counsel for Defendants
David A. Veeder
Davidson, Veeder, Baugh, Broeder, Poppler & Michelotti
805 First Bk. Bldg., Billings MT 59101
(406) 248-9156

Ronald Lodders
Crowley, Houghey, Hanson, Toole & Dietriech
P.O. Box 2529, Billings MT 59103
(406) 252-3441

Perry E. Wallace Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5395

Robert B. Cousins Jr.
Shank, Irwin, Conant & Williamson
3100 First Nat'l Bk. Bldg., Dallas TX 75202
(214) 720-9600