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Friends of the Earth v. Butz

ELR Citation: 6 ELR 20403
Nos. No. CV-75-23-BLG, 406 F. Supp. 742/(D. Mont., 09/17/1975)

Forest Service approval of exploratory prospecting in the Custer National Forest is not a major federal action significantly affecting the environment and therefore does not require preparation of an environmental statement under NEPA. Neither §102 of NEPA nor the Council on Environmental Quality guidelines require public notice prior to the agency's threshold determination not to prepare an impact statement. Moreover, the Forest Service's own NEPA guidelines require public involvement prior to preparation of the draft impact statement, not prior to the threshold determination. Also, the agency satisfied NEPA by consulting with appropriate outside organizations prior to its decision. The agency's preliminary Environmental Analysis Report created a sufficient reviewable record for the decision by adequately identifying the environmental dangers and benefits of the prospecting. The agency must comply with NEPA irrespective of any mining rights that the corporate defendants may have, but in the absence of case law declaring whether an impact statement be weighed in light of newly-promulgated Forest Service guidelines. The prospecting operation, which will result in slight upgrading of an existing road and construction of 300 feet of new road and a bridge, will not significantly affect the environment.

For moving papers in the appeal taken from this decision, see ELR 65300, 65329.

Counsel for Plaintiffs
William L. Madden
West Main St.
Bozeman MT 59715
(406) 587-0618

Counsel for Defendants
Keith L. Burrowes, Asst. U.S. Attorney
U.S. Courthouse
310 N. 26th Street
Billings MT 59101
(406) 245-6711

James M. Haughey
Robert E. Lee
Crowley, Kilbourne, Haughey, Hanson & Gallagher
500 Electric Bldg.
Billings MT 59101
(406) 252-3441

Robert T. Connery
R. Brooke Jackson
Holland & Hart
500 Equitable Bldg.
Denver CO 80202
(303) 292-9200