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Jette v. Bergland

ELR Citation: 8 ELR 20506
Nos. No. 75-603-M, 579 F.2d 59/11 ERC 1658/(10th Cir., 05/11/1978)

Affirming in part and remanding the case on one issue, the court holds that the trial court erred in dismissing for failure to exhaust administrative remedies plaintiffs' claim that issuance of access road construction permits by the Forest Service was a major federal action under the National Environmental Policy Act (NEPA) requiring preparation of an environmental impact statement (EIS). After deciding that an EIS was unnecessary, the Forest Service issued permits to the Exxon Corp. to build access roads to mining claims located within the Gila National Forest. Plaintiffs sought injunctive relief on nuisance grounds, arguing that Exxon's activities had resulted in substantial and irreparable damage to plaintiffs' property as well as to the surrounding area and alleged as an independent ground for relief a violation of NEPA. The trial court dismissed plaintiffs' NEPA claim for failure to exhaust their administrative remedies, and it ruled that the proof offered at trial did not sufficiently establish a nuisance claim. The court concludes that the lower court's findings regarding the alleged environmental effects to plaintiffs' property were not clearly erroneous and that the provisions of the Mining Law of 1872 under which the Forest Service acted are not unconstitutional. The trial court erred, however, in dismissing plaintiffs' NEPA claim for failure to exhaust administrative remedies. The decision whether to prepare an EIS should have been made simultaneously with the significant activities of the Forest Service in 1972 for processing the permits. Courts should not put great emphasis on the exhaustion of remedies in NEPA cases. Moreover, exhaustion was meaningless here because at the time of the lower court's decision, plaintiffs had already appealed the issuance of the permits to the Regional Forester. The judgment of the trial court is affirmed with the exception of its ruling on the NEPA claims, and the case is remanded to determine whether an EIS should be prepared on the Forest Service's action. The court notes that the action appears to be a compelling one for invoking NEPA.

The dissent argues that the Forest Service met all of its obligations under NEPA and that plaintiffs intentionally bypassed available remedies in favor of pursuing the court action.

Counsel for Plaintiffs-Appellants
Emmett C. Hart
2321 Isleta Blvd. SW, Albuquerque NM 87105
(505) 877-8014

Counsel for Defendants-Appellees
Kathryn A. Oberly; James E. Moorman, Ass't Attorney General; Raymond H. Zagone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2756

John R. Cooney, Lynn H. Slade
Modrall, Sperling, Roehl, Haris and Sisk
8th Floor, Public Service Bldg., P.O. Box 2168, Albuquerque NM 87103
(505) 243-4511

Robert M. Perry
Law, Management, & Staff Dept., Exxon Co. USA
800 Bell St., Houston TX 77002
(713) 656-3583

Doyle, J., joined by Holloway, J.; dissent by Barrett, J.