1 ELR 50001 | Environmental Law Reporter | copyright © 1971 | All rights reserved

PRIMER FOR THE PRACTICE OF FEDERAL ENVIRONMENTAL LAW

[1 ELR 50001]

Preface

This Primer is largely the work of James W. Moorman, who presented it as an "Outline of Federal Environmental Law for the Practicing Lawyer" at a conference on law and the environment held at Airlie House, Warrenton, Virginia, on September 11 and 12, 1969. The proceedings of the conference, including Mr. Moorman's paper, appear in Law and the Environment, Walker and Company(New York: October, 1970).

In the present "Primer for the Practice of Federal Environmental Law," the Environmental Law Reporter has updated, rearranged and modified slightly Mr. Moorman's paper to take account of developments in environmental law over the past year. The Reporter is indebted to the Environmental Law Society of the Harvard Law School for assistance in preparing the Primer for pre-publication use in a two-day intensive course in environmental law held at the Harvard Law School on October 23 and 24, 1970. The Environmental Law Institute and the Environmental Law Society were joined in the sponsorship of the course by the Boston University School of Law and the Conservation Law Foundation of Boston, Massachusetts. The Conservation Foundation of Washington, D.C., also contributed.

The Environmental Law Institute has under review the feasibility of preparing a comprehensive practice manual for environmental law. The manual would appear in the Environmental Law Reporter and would be for use primarily with otherr materials published in the Reporter. The practice manual would expand considerably the Primer's treatment of procedural and substantive federal law and would adda wide array of state and local materials. It would explore in detail problems of locating, organizing and presenting scientific and technological evidence, especially in administrative hearings.

Introduction

This Primer introduces federal environmental law to practicing attorneys who have had little or no experience with environmental litigation. It provides both an overview of the field and a more detailed analysis of selected problems encountered in environmental practice.

The Primer is primarily concerned with federal law, the federal government and the federal courts. The roles of state and local law, and of state and local government and courts, are of course of great importance, and this Primer omits them only in order to be able to focus upon the key role which federal government and federal law must play if the environment is to be adequately protected.

Citizens are turning to litigation for the environmental protection that they have not always been able to obtain through Congress or through federal administrative agencies. This is true even though political action has produced encouraging results: air and water pollution statutes have been toughened, the Citizen's Crusade for Clean Water lobbied effectively for more funds, a Presidential Council on Environmental Quality has been organized and a national environmental policy enacted which applies to all federal agency activities. However, the destruction of the environment continues. Pollution and environmental degradation from the private sector apparently cannot be held in check by the administrative process alone, nor can the federal government effectively curtail the harm it causes through its own activities. Not only are federal regulatory, allocative and planning functions sometimes deficient, but federal projects are often environmentally destructive as well.

The National Environmental Policy Act, 42 U.S.C. § 4321 et seq., requires agencies to take environmental factors into account whenever their actions threaten the environment. The Primer does not discuss the National Environmental Policy Act, because its broad provisions reach all federal activity under each of the statutes discussed here. Instead, the reader is referred to Ronald Peterson's detailed analysis of the Act, published in the Environmental Law Reporter at 1 ELR 50035.

The problems facing the attorney from the citizen seeks out may be formidable. The law may be a new, unfamiliar and technical statute. Again, it may be a vast collection of miscellaneous, unfamiliar precedents. And adequate law in the area of concern may not yet exist. If the suit is against the United States, the resources of the Department of Justice must be faced. More than likely, the action will be long and expensive, involving prolonged discovery proceedings and requiring the location of expert witnesses and serious legal research. On top of this, the client, frequently an ad hoc citizens' [1 ELR 50002] group, may be poorly organized the financially weak.

In spite of these drawbacks, more and more lawyers are being drawn into environmental litigation, and environmental law as a separate speciality has already begun to evolve. Scenic Hudson,¹ a landmark in the law of standing to sue, appears in retrospect to have introduced a new field of law. The Primer surveys the range of increased activity and attempts to guide the attorney in the early phases of his federal environmental practice.

I. PROCEDURE

Before beginning an environmental action, every lawyer must take many procedural considerations into account. Here we do not attempt to cover the entire subject, because environmental law, unlike many otherr specialized areas of practice, involves the full range of federal civil procedure. A lawyer's general knowledge and ability are thus much more important than what he might learn from this primer, which only covers a few procedural problems of particular concern to the environmental lawyer.

A. JURISDICTION

The first and perhaps the greatest hurdle in a suit with the federal government is the motion to dismiss for lack of jurisdiction. Government attorneys give much attention to such motions; an attorney who defeats one may have won a major victory for his client.

Suits against the federal government usually present the environmental attorney with three key jurisdictional questions. Can be successfully argue that the suit lies, not against the government but against governmental officers who are allegedly acting outside of their authority? Can he convince [1 ELR 50003] the court that his client has the necessary standing in interest to bring suit? Finally, can he establish adequate jurisdictional bases for suits against federal officers?

1. Sovereign Immunity

The federal government's immunity to suit, grounded in the constitutional separation of powers, must be faced by any attorney seeking to challenge official action.In some cases, the government's consent to be sued has been written into the statute involved. The doctrine of sovereign immunity has been spelled out for the most part in suits where injunctions against government officials were sought for actions outside the scope of their authority. The courts have shunned ordering an official to cease or not commit authorized but allegedly wrongful acts,² and have generally refused to order officials to commit positive acts.³

As stated, the United States is immune from suit save as it consents to be sued.⁴ Congress alone can waive the immunity of the United States from suit.⁵ Unless the United States has consented to be sued through an Act of Congress, no court in the land has jurisdiction of an action against the United States.⁶ In the words of Chief Justice Marshall: "As the United States are not suable of common right, the party who institutes such suit must bring his case within the authority of some Act of Congress, or the court cannot exercise jurisdiction over it."⁷

Of course, the federal government can act only through its agents. Thus, if an action is brought against an individual who is an officer of the United States to enjoin an act done within the scope of official duties, the action is nevertheless against the government.⁸

Whether an officer has acted beyond his authority most likely cannot be determined until after a factual investigation of what he did or plans to do. Nevertheless, the government will usually try to dismiss on the pleadings, and the environmental attorney must be prepared to meet this challenge. Justice Douglas's observation in Land v. Dollar,⁹ that "this is the type of case where the question of jurisdiction is dependent on the decision of the merits," should be brought to the court's attention on any motion to dismiss.

A statement in Larson is often quoted as providing the criteria as to when the suit is against the sovereign:

… the action of an officer of the sovereign (be it holding, taking or otherrwise legally affecting the plaintiff's property) can be regarded as so "illegal" as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.¹⁰

Thus, one must find a lack of statutory authority in order to enjoin an individual officer's behavior, and such lack must be alleged.¹¹ But even where a suit comes within Larson's two "exceptions" to sovereign immunity (ultra vires, constitutionality), recent cases indicate that the litigant faces an additional hurdle.¹² Footnote 11 in Larson (at 391) stated that a suit "may fail" if "the relief requested cannot be granted by merely ordering cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property." The question has arisen whether the words "may fail" make dismissal mandatory or whether they give courts the option of weighing relative burdens and equities. In State of Washington v. Udall,¹³ the court held, in essence, that the Larson footnote was non-mandatory. It said that a court must weigh in each case the [1 ELR 50004] "relative equities or burdens." But see Gardner v. Harris,¹⁴ which appears to be contra.¹⁵ The conclusion of a Department of Justice attorney is that "in many cases attorneys cannot seek blanket refuge behind the doctrine [of sovereign immunity], but must, as in otherr areas, analyze and argue the underlying merits of the case."¹⁶

2. Standing to Sue: Developments in Two Areas

Federal court decisions on all levels in the past few years have transformed the law regarding the standing in interest which a plaintiff must show in order to maintain his action. Thus recent decisions of the Supreme Court, and several more in the courts of appeals, have broadened the concept to allow a greater variety of parties to initiate actions. The scholarly attention which the law of standing has received in recent years is impressive.¹⁷ The environmental attorney certainly should bear in mind that the law of standing is still rapidly evolving and that while this evolution is clearly toward more liberal standards, by no means is it complete. It part this transformation has resulted in confusion between standing to seek judicial review and jurisdiction to review a given agency's decision. This primer will focus on developments in two areas:

a. Judicial Review of Administrative Decisions

The requirement of standing insures "that only those with a genuine and legitimate interest can participate in a proceeding."¹⁸ Ostensibly to shed light on this requirement, the Supreme Court recently applied a two-part test for standing in the companion cases of Association of Data Processing Service Organization v. Camp¹⁹ and Barlow v. Collins.²⁰ The court asked (1) "whether plaintiff alleges that the challenged acion has caused him injury in fact, economic or otherrwise," and (2) "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."

Applying this two-part test first in Data Processing Service, the Court held that vendors of data processing services had standing to challenge a ruling of the Comptroller of the Currency that national banks could properly provide data processing for their own customers and could sell the service to otherr banks. Although these facts clearly fell within the "economic" and "injury in fact" portion of the first part of the two-part test, Justice Douglas (writing for a majority of six) did note in connection with part two that "the interest sought to be protected … may reflect 'aesthetic, conservational and recreational' as well as economic values."²² Data Processing Service, supra, at 153.

In Barlow v. Collins, the Court applied the Data Processing Service tests and held that tenant farmers paying cash rents who are eligible for cotton subsidies have standing under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge a regulation which permits such tenant farmers to assign their cotton subsidies to their landlords. In Barlow the Court applied the two tests set out in Data Processing Service but reworded the first test, requiring "… the personal stake and interest that impart the concrete adverseness required by Article III" of the Constitution.

Unfortunately the most recent decisions on standing tend to confuse two separate doctrines. This confusion began in the courts of appeals' decisions on standing, and as yet no federal court has clearly separated the criteria for standing to procure review from the subject-matter jurisdictional requirements of reviewability. The concept of standing originates in the "case" or "controversy" mandate of U.S. Const., Art. III, § 2. Congress governs the subject-matter jurisdiction of the federal courts through various general and specific statutory grants. The potential overlap of these two separate requirements for federal court review is emphasized by Justice Brennan's concurring [1 ELR 50005] opinion (joined by Justice White) in Data Processing Service & Barlow. Arguing from Flast v. Cohen,²³ and Baker v. Carr,²⁴ Brennan maintains that the only test for standing is "whether the person whose standing is challenged is a proper party to request adjudication of a particular issue," and not whether the controversy is otherrwise justiciable [referring to ripeness, mootness, collusive suits, and political question doctrines] or whether on the merits the plaintiff has a legally protected interest which the defendant's action invaded."²⁵ Therefore, he concludes that part two of the majority's formula is a misplaced restatement of the doctrine of reviewability of administrative decisions and is not a proper criteria in a test for standing:

When the legality of administrative action is at issue, standing alone will not entitle the plaintiff to a decision on the merits. Pertinent statutory language, legislative history, and public policy considerations must be examined to determine whether Congress precluded all judicial review, and if not, whether Congress nevertheless foreclosed review to the class to which plaintiff belongs.²⁶

The similarity of part two of the majority's standing test, "… [Plaintiff's interest being within the] zone of interests to be protected or regulated by the statute …," and Brennan's version of a portion of the criteria for reviewability, "… whether Congress foreclosed review to the class to which plaintiff belongs," emphasizes the difficulty of this important distinction.

The significance of this dispute is apparent from the opinions rendered in Data Processing Services and Barlow concerning the impact of the Administrative Procedure Act on standing and reviewability. The majority states that § 702 of the "… Administrative Procedure Act grants standing to a person "aggrieved by agency action within the meaning of a relevant statute'"²⁷ and that § 701 (a) of the Act is the pertinent section in determining Congressional intent as to reviewability.²⁸ Brennan, however, sees § 702 of the Act as the statutory index of Congressional intent to allow review in the absence of an express statutory grant²⁹ and as having no relevance to the determination of standing.³⁰ On this aspect of the controversy the majority position is argued at length in an earlier decision in the U.S. Court of Appeals for the D.C. Circuit: Scanwell Laboratories, Inc., v. Shaffer.³¹ See also The National Welfare Rights Organization v. Finch,³² which examines Data Processing Services and Barlow citing Scanwell, all on the issue of whether § 702 of the A.P.A. has effected a broadening of standing to seek review.

Beyond the necessity of proper analysis for the purposes of effective argument from the cases, it should be noted that the distinction between standing and reviewability could prove crucial where the environmental attorney needs to demonstrate standing to justify an appearance before an administrative agency, long before jurisdiction is at issue.

With the nature of the ongoing confusion between standing to seek review and reviewability clearly in mind, the environmental attorney should note that as a practical matter the standing barrier has been successfully overcome in several cases of far reaching impact in the environmental field.

In Scenic Hudson Preservation Conference v. F.P.C.,³³ conservationists sought to intervene in an F.P.C. proceeding in which the Consolidated Edison Company of New York had applied for a license to construct a pumped storage hydroelectric project on Storm King Mountain. On appeal the Commission argued that the applicants did not have standing to obtain judicial review because they claimed no economic injury. In light of the standing to seek review and reviewability conflict discussed supra, this court's treatment of the standing issue is illuminating:

Although a "case" or "controversy" which is otherrwise lacking cannot be created by statute, a statute may create new interests or rights and thus give standing to one who would otherrwise be barred by the lack of a "case" or "controversy." [This requirement of Article III, § 2] does not require that an "aggrieved" or "adversely affected" party have a personal economic interest. Scenic Hudson, supra at 615.

However, more significant to the preparation of an environmental case is the court's description of an aggrieved party:

In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such [1 ELR 50006] areas, must be held to be included in the class of "aggrieved" parties under § 313 (b) [of the Federal Power Act, 16 U.S.C. § 8251(b)]. …³⁴ We hold that the Federal Power Act gives petitioners a legal right to protect their special interests. Scenic Hudson, supra, 354 F.2d at 616.³⁵

The increasing acceptability of the argument that the standing requirement rooted in Art. III may be satisfied by a showing that (1) the party is "aggrieved" and (2) that his cause has been congressionally recognized within a "relevant" statute, is clearly demonstrated in Citizens Committee for the Hudson Valley v. Volpe³⁶. Here plaintiff, environmental organizations and interested municipalities, sought review of an Army Corps of Engineers grant of a permit for construction of an expressway on land fill in the Hudson River, the permit having been granted pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401-466 K. Scenic Hudson was not specifically in point because unlike the Federal Power Act there at issue, the Rivers and Harbors Act contains no provision for judicial review, upon which the court could base both jurisdiction to review and standing, as it had in Scenic Hudson. However, the court did not find this distinction significant. On the issue of reviewability the court held: "Since the Army's issuance of this permit was final agency action for which there is no otherr adequate remedy in a court, and review is not clearly and convincingly precluded by the Rivers and Harbors Act, the Administrative Procedure Act [particularly 5 U.S.C. § 702] must be read to confer equitable jurisdiction on the district court to protect by injunctive relief such rights as the plaintiff may have standing to assert."³⁷

Having found jurisdiction to review, the court proceeded to the issue of whether the plaintiffs had standing to seek that review. Again recognizing the absence of a specific review provision in the Rivers and Harbors Act, the court stated: "Nevertheless, persons 'aggrieved' by agency action pursuant to [The Rivers and Harbors Act] [1 ELR 50007] are entitled to review on similar terms by the Administrative Procedure Act. … [T]he meaning of 'aggrieved' in one act is not different from its meaning in the otherr. Section 702 . … [A.P.A.] provides that a person 'aggrieved' by agency action is entitled to judicial review thereof."³⁸ After identifying two such relevant statutes, and a regulation which required the Corps to consider environmental effects of projects it approves,³⁹ the court concluded:

Thus administrative as well as congressional concern for natural resources in the present exercise of federal authority is evident. We hold, therefore, that the public interest in environmental resources — an issue created by statutes affecting the issuance of this permit — is a legally protected interest affording these plaintiffs, as responsible representatives of the public, standing to obtain judicial review of agency action alleged to be in contravention of that public interest.⁴⁰

In his dissenting opinion in Data Processing Services and Barlow, Justice Brennan summarizes his criticism of the majority two-step test:

… an approach which treats separately the distinct issues of standing, reviewability, and the merits, [i.e., legal interest], and decides each on the basis of its own criteria, assures that these complex questions will be squarely faced, thus contributing to better reasoned decisions and to greater confidence that justice has in fact been done. The Court's approach does too little to guard against the possibility that judges will use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits.⁴¹

Justice Brennan's premonition occurs in a recent decision of the 9th Circuit in Sierra Club v. Hickel.⁴² After distinguishing many of the above cited cases with brief discussion, the court held that the Sierra Club did not have an interest, nor had it suffered an injury, sufficient to support standing. The plaintiff sought to contest the grant of a permit to Walt Disney Enterprises to build the Mineral King Ski Resort in the Sequoia National Game Refuge. The court specifically found that the Administrative Procedure Act § 702 did not set forth a test for standing different from the first of the two-part test formulated in Data Processing Services, and then applied the first part, and the "basic concept" of standing as enumerated in a Second Circuit decision in 1943,⁴³ to hold that although the plaintiff might feel the challenged action was "personally displeasing or distasteful" it had made no showing of a threat to its legally protected interests. The Sierra Club is now seeking review of this decision by certiorari to the Supreme Court.⁴⁴

[1 ELR 50008]

b. Taxpayers Suits to Enjoin Improper Expenditures

As Professor Jaffe has pointed out, most states recognize taxpayers' suits to some extent.⁴⁵ Unfortunately, Frothingham v. Mellon,⁴⁶ and its progeny⁴⁷ have stifled such suits at the federal level. The recent case of Flast v. Cohen⁴⁸ has revived hope that such suits may yet be possible. In Flast, the Court noted that standing exists where the "dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution."⁴⁹ For that reason, standing requires a personal stake in the outcome of a particular case. The Court said: "A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case."⁵⁰ To demonstrate this stake, a logical nexus between the status asserted (e.g., taxpayer) and the claim sought to be adjudicated must be shown.Flast suggested that taxpayers are logical parties to challenge an unconstitutional exercise of taxing and spending powers, but not to challenge an essentially regulatory statute.

The principle of Flast may apply to the unauthorized expenditure of money by an executive officer. Admittedly, it is difficult to stretch the language of Flast to this result. However, it is a far more serious act of judicial control to declare an act of Congress unlawful, which is done, than it is to declare executive spending unlawful, which is not yet done.

4. Mandamus

The federal mandamus statute, 28 U.S.C. § 1361, was intended to grant jurisdiction to federal district courts to review administrative action where "aggrieved" parties could not otherrwise obtain review.

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff.

The background of the provision makes the jurisdictional nature of the statute clear: Where a statute does not specifically provide for review of the actions of a Government official, the aggrieved party may obtain judicial review through invoking one of several nonstatutory proceedings. Which of these he chooses turns upon the relief sought. In certain cases, the relief can only be obtained by compelling a Government official to perform an act which he is required to do by statute but which he nevertheless failed to do. Traditionally, the appropriate remedy in that case has been a writ of mandamus. …⁵¹

By way of background, 28 U.S.C. § 1361 was passed by Act of October 5, 1962. Prior to that date, the United States district courts were without mandamus jurisdiction. The District Court for the District of Columbia, however, deriving jurisdiction not only from Title 28, but also from the law of the State of Maryland as of 1801, when the District of Columbia was ceded, did assert such jurisdiction.⁵² The purpose of 28 U.S.C. § 1361 was to extend the mandamus jurisdiction of the District Court for the District of Columbia to all the otherr district courts.⁵³ The mandamus jurisdiction contemplated by 1361 is "… to issue orders compelling Government officials to perform their duties and to make decisions in matters involving the exercise of discretion, but not to direct or influence the exercise of the officer or agency in the making of the decision."⁵⁴ "… the court can only compel the official or agency to act where there is a duty, which the committee construes as an obligation, to act or where the official or agency has failed to make any decision in a matter involving the exercise of discretion, but only to order that a decision be made and with no control over the substance of the decision."⁵⁵

A problem with standing arises under the mandamus statute. Does the "duty owed to the plaintiff" embrace the right of the public interest litigant to obtain the remedy of mandamus against a public officer? The District of Columbia precedents have, unfortunately, been rather narrow on standing. For example, the court held in Laughlin v. Reynolds⁵⁶ that the plaintiff did not have standing as a member of the bar or as a taxpayer (citing Massachusetts v. Mellon)⁵⁷ to bring a mandamus [1 ELR 50009] action to require the Commissioner of Public Buildings to evict the bar association library from the court house. Again, in United States v. Dern,⁵⁸ mandamus standing was denied on the ground that plaintiff was representing the public (also citing Massachusetts v. Mellon). The court said, "Their interest is not personal and direct, but indirect and remote."⁵⁹ Also see United States ex rel. American Silver Producers' Ass'n v. Mellon⁶⁰ and United States ex rel. Alsop Process Co. v. Wilson.⁶¹

This narrow view of mandamus is unfortunate in view of an early Supreme Court case which indicated anotherr approach. In Union Pacific R.R. v. Hall,⁶² an action was brought to compel the railroad to perform its public duty under a special mandamus statute.⁶³ The Court said:

The appellants contend that the court erred in holding that Hall and Morse, on whose petition the alternative writ was issued, could lawfully become relators in this suit on behalf of the public without the assent or direction of the Attorney-General of the United States, or of the district attorney for the district of Iowa. They were merchants in Iowa, having frequent occasion to receive and ship goods over the Company's road; but they had no interest otherr than such as belonged to otherrs engaged in employments like theirs and the duty they seek to enforce by the writ is a duty to the public generally. The question raised by the objection, therefore, is whether a writ of mandamus to compel the performance of a public duty may be issued at the instance of a private relator.⁶⁴

The Court believed the answer to the question was yes in England and in the preponderance of American jurisdictions and held that relators "were competent to apply for the writ."⁶⁵ Professor Jaffe points out also that "The very considerable weight of authority now supports the citizen mandamus suit," noting 29 jurisdictions that allow the action, 5 that are doubtful and 10 that are contra.⁶⁶

Because the court in Laughlin v. Reynolds and United States v. Dern relied upon Massachusetts v. Mellon, it would seem appropriate to reexamine standing under § 1361 in light of Flast v. Cohen, supra. Certainly with the District of Columbia Circuit decisions so far out of line with the Supreme Court's statement in Hall and the preponderant American authority, the environmental attorney should not discount the federal citizen-mandamus suit.

5. Jurisdictional Amount

A minor problem exists for plaintiff in answering the contention that the interest he is attempting to protect is not worth $10,000. The problem arises where the disputed interest may be of great value, e.g., a National Forest, but it is hard to phrase the interest of the plaintiff in terms of money. The metaphysics of jurisdictional amount in this context can be taxing. Many government attorneys do not believe that the United States should raise the question of jurisdictional amount in such circumstances. The Supreme Court in Harmon v. Brucker⁶⁷ has said:

Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McNulty, 187 U.S. 94, 108; Philadelphia Co. v. Stimson, 223 U.S. 605, 621-622; Stark v. Wickard, 321 U.S. 288, 310. The District Court had, not only jurisdiction to determine its jurisdiction, but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his action would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available. Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries.⁶⁸

The District Court shifted the problem in Citizens Committee for the Hudson Valley, supra, by putting jurisdiction on the Administrative Procedure Act. We may infer that Professor Jaffe would approve of this solution. He states:

It does seem inapt to make it a condition of a suit against an officer that the right asserted be given a value, if indeed in many cases it is even possible. This being so it would seem to be sound to treat § 10 [of the Administrative Procedure Act] as a source of jurisdiction with respect to any of the questions which that section makes reviewable, and some courts have so held.⁶⁹

6. Venue

The major problem⁷⁰ with venue and service of process in suits against federal officers was solved with the addition of section 1391(e) to Title [1 ELR 50010] 28 of the United States Code, which reads:

A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in official capacity or under color of legal authority, or an agency of the United States, may, except as otherrwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.

The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.

A snag remains if each defendant is not an officer or an agency of the United States. The District Court for the Eastern District of Pennsylvania, in Powelton Civic Home Owners Ass'n. v. Department of Housing and Urban Development,⁷¹ said:

… we conclude that the requirement that "each defendant" be a federal defendant refers only to defendants who are beyond the forum's territorial limits. Thus the joining of a non-fderal defendant located within the forum's territorial limits and adequately served under F.R. Civ. P. 4(f) has no effect on the applicability or operation of Section 1391(e). Indeed, any otherr conclusion would appear illogical.⁷²

Powelton was followed by the District Court in Colorado in Brotherrhood of Locomotive Engineers v. Denver & Rio Grande Western R.R.⁷³ An earlier decision in the Eastern District of Pennsylvania, Chase Savings and Loan Association v. Federal Home Loan Bank Board,⁷⁴ was grounded in a literal reading of the statute, and this decision was followed by the District Court in Minnesota in Benson v. City of Minneapolis.⁷⁵

B. DISCOVERY, THE FREEDOM OF INFORMATION ACT AND THE EXECUTIVE PRIVILEGE

Discovery falls logically into two broad categories: (1) discovery during an action under the Federal Rules of Civil Procedure, and (2) discovery under the Freedom of Information Act.⁷⁶ A third category concerns discovery during administrative proceedings, which presents special problems if information is desired from anotherr private participant. This Primer will be confined to discovery against the government under both the Freedom of Information Act and the Federal Rules: the executive privilege.⁷⁷

The executive privilege as developed in discovery proceedings has been used from time to time to limit discovery in judicial proceedings. The privilege has several branches and its scope has varied a bit from decision to decision. Of chief concern is its use to protect intradepartmental documents incident to the formulation of policy decisions.⁷⁸ 5 U.S.C. § 552 (b) (5) of the Freedom of Information Act incorporates the privilege. That section reads:

(b) This section does not applyto matters that are:

* * *

(5) inter-agency or intra-agency memorandums of letters which would not be available by law to a party otherr than by a party in litigation with the agency. …

The purpose of this provision as it appears in the legislative history is as follows:

Inter-agency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the agency: Agency witnesses argued that a full and frank exchange of opinions would be impossible if all internal communications were made public. They contended, and with merit, that advice from staff assistants and the exchange of ideas among agency personnel would not be completely frank if they were forced to "operate in a fishbowl." Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and otherr information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy. S. 1160 exempts from disclosure material "which would not be available by law to a private party in litigation with the agency." Thus, any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency would be available to the general public.⁷⁹

The rationale for the privilege is sometimes stated to be that the reasoning process of the administrator should not be probed by the courts.⁸⁰ The underlying reason, however, is as stated in H. Rept. 1497, supra., to encourage a frank exchange of ideas in office memorandums prior to decisions. The court in Kaiser, made it clear that:

[1 ELR 50011]

Free and open comments on the advantages and disadvantages and of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

There is a public policy involved in this claim of privilege for this advisory opinion — the policy of open, frank discussion between subordinate and chief concerning administrative action.⁸¹

However, in practice the courts have realized the privilege's inherent potential for abuse and have limited its usage. Of initial interest is that it is not a privilege which can be raised as a matter of course by the government, but must be formally claimed by the head of the department concerned.⁸² Secondly, an observation should be made about Morgan. In that case, the Secretary of Agriculture was deposed concerning the weight he gave to various documents in the record. The court's statement that this procedure was improper certainly should not be construed to prevent a party from obtaining the entire administrative record upon which a decision was made. Thirdly, the privilege "is not to be lightly invoked."⁸³ Finally, the court in Reynolds stated that "the court itself must determine whether the circumstances are appropriate for the claim of privilege."⁸⁴ Whether this is to be done by the court by an examination of the document in Camera or by accepting the arguments of the government is a matter for judicial discretion. The court should observe the circumstances of the case and the showing of necessity for the documents in order to determine how far to probe and, of course, the propriety of the reasons for claiming the privilege.

The Reynolds case, representing a claim of national security, should be the hardest for the judge to decide and that in any less important matter, the court should examine the material in camera, although the courts refused to make the examination in Kaiser and in Carl Zeiss.⁸⁵

Should Rule 5-09 of the proposed Federal Rules of Evidence be adopted in its present form,⁸⁶ the privilege will no longer exist as to intra-office memoranda. The proposed rule limits the privilege to "secrets of state" which are defined to include only matters of "national defense" and "international relations."

C. BURDEN OF PROOF

The assisgment of the burden of proof at the trial and administrative proceedings may be a key factor in determining the outcome in an environmental conflict. Burden rules are crucial; the deserve careful attention both from the practicing attorney and the legal scholar. By changing the burden rules through careful advocacy, and by exposing the full extent of the impact of burden rules through careful analysis, much can be done to improve the environment without altering substantive law. Burden ruleswill not be treated in detail here. Instead, the reader should examine Professor Krier's article on the subject.⁸⁷

In Scenic Hudson Preservation Conference v. Federal Power Commission,⁸⁸ the Court placed the burden on the FPC to make the record complete on the criteria defined in its Congressional mandate. The Supreme Court adopted this view in Udall v. FPC.⁸⁹

We also note that in the second United Church of Christ⁹⁰ opinion, Judge Burger stated:

… a "public" intervenor who is seeking license or private right is, in this context, more nearly like a complaining witness who presents evidence to the police or prosecutor whose duty it is to conduct an affirmative and objective investigation of all the facts and to pursue his prosecution or regulatory function if there is probable cause to believe a violation has occurred.

Later, the Court observed:

The Commission and the examiners have an affirmative duty to assist in the development of a meaningful record which can serve as the basis for the evaluation of the licensee's performance of his duty to serve the public interest. The public intervenors, who were performing a public service under a mandate of this court, were entitled to a more hospitable reception in the performance of that function. As we view the [1 ELR 50012] rcord, the Examiner tended to impede the exploration of the very issues which we would reasonably expect the Commission itself would have initiated; an ally was regarded as an opponent.⁹¹

Thus the FCC has the burden of insuring a complete investigation and record for the matters it decides.⁹²

These decisions apply to an administrator who is going to administrate as well as decide. This is obvious when one shifts his view from a regulatory to an executive agency, such as the Forest Service or the Corps of Engineers. The burden is clearly on them to follow statutory criteria that authorize their administration. The responsibility should never rest on the citizen to bring evidence to the administrator's attention. The rule should be that he must search out the relevant facts or act at his peril.

D. EVIDENCE

1. Natural Beauty

The environmental attorney must present the natural beauty of the area he is attempting to preserve in such a manner that his evidence will be given equal consideration along with the economic factors involved. The task seems overwhelming, but some initial attempts to use sophisticated techniques for the introduction of evidence, and a few systematic legal analyses, have been made.

David Sive's article, "Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases,"⁹³ discusses, inter alia, the problems of natural beauty. Mr. Sive has dealt with this issue once before in an article in the Sierra Club Bulletin for May 1968, entitled "The Storm King Mountain Case: Natural Beauty and the Law." A few points from these articles are included here because of their importance to the environmental attorney.

Obviously, natural beauty is incapable of precise measurement. The environmental attorney cannot graph or chart the loss to an area or its people resulting from the destruction of a scenic spot. To prove his case, he must rely on a variety of expert witnesses. In the Storm King case, for example, expert testimony came from seven men: a professor of planning, a professor of art history, a cartographer and four conservationists. Their testimony presents a range of perceptions and attitudes about the mountain and the surrounding country, and is "a mixture of eloquence and dry analysis."⁹⁴ The basic theory was that there are in this country some landscapes which are considered so valuable in their natural state as a scenic resource, that they are placed beyond the reach of industrial use as national parks and monuments and the like, and that the scenic value of the Hudson River at Storm King Mountain could in part be measured by analogy to the beauty and uniqueness characteristic of similar, reserved areas. The thrust of this testimony then was "toward the conclusion that the Hudson River at Storm King Mountain possesses sufficient scenic beauty that it should be protected against those who seek to use the area for an industrial enterprise."⁹⁵

Several of the traditional rules of evidence regarding expert testimony pose particular problems in the preparation and introduction of testimony designed to preserve esthetic values. Expert testimony on the matter directly in issue is inadmissible if the issue is a mixture of law and fact.⁹⁶ In the Storm King case, expert testimony as to the degree of scenic beauty of the mountain was received over objections based on this rule. Expert testmony is inadmissible if it deals with matters of common knowledge. The argument is that "the beauty of a mountain, or a river or of a highway is a matter of common knowledge; and that any truck driver, as well as a foremost conservationist, is entitled to his opinion."⁹⁷ As Sive aptly states, "countering such arguments without the appearance of condescension or conceit as a problem."⁹⁸

2. Cost-Benefit Ratios

Attorneys will often come up against the cost-benefit ratio in struggling with projects destructive of environmental values. A model analysis of one such cost-benefit ratio is set forth in the January 1968, Sierra Club Bulletin: Neuzil, "Uses and Abuses of Highway Benefit-Cost Analysis, with Particular Reference to the Red Buffalo Route."

II. SUBSTANTIVE ENVIRONMENTAL MATTERS

Substantive environmental matters are divided into three broad groups in this Primer: pollution, land and water use, and the public domain. Generally, each [1 ELR 50013] subgroup of these three groups has its own cluster of special statutes. Problems will often cross lines, falling in several categories. In addition, goals and approaches may be similar from one category to the next.

Difficulties common to each category are of four types:

Information In many cases a client's real need may simply be to discover certain facts, e.g., what a specific agency is doing to enforce water pollution control or what the status of a proposed project is.

Rule Making A problem's solution may depend on how an agency interprets its authority. Courts bend over backwards to uphold administrators' interpretations of the law.⁹⁹ Therefore, participation in rule-making and the less formal administrative interpretations may be a problem that the environmental lawyer faces.

Precedent The client may have a problem which involves a broad management policy that requires a judicial precedent. This may give the environmental attorney an opportunity to imitate the Justice Department by choosing the best case on the facts under that policy; e.g., selected from among several offensive, similarly situated water projects.

Enforcement The problem may simply be to get an environmental enforcement agency to do its job under the law or to prevent an agency from engaging in activities contrary to its policy mandate. Water and air pollution statutes present this type of problem in acute form.

A. POLLUTION

In the public mind today environmental problems and pollution are almost synonymous. Pollution is in fact only part of the problem; nevertheless, it is a pervasive, highly visible and sometimes dangerous instance of environmental deterioration.

Pollution occurs when materials accumulate where they are not wanted. Overburdened natural cyclic processes cannot immediately adjust to the large quantities of materials which man has added to them. Pollutants are subject to legal controls where they threaten natural systems, our health, or our esthetic sensibilities; they may in fact be valuable resources temporarily out of place. For example, DDT is out of place in lakes and streams, and hence a pollutant because it kills fish and otherr wildlife.

The earth increasingly is being polluted by both substances and energy levels inimical to life. Pollution control laws are the awakening responses of man to the realization of the problem. These laws must, however, be enforced and extended if their promise is to be fulfilled. This task will fall on the environmental bar.

1. Water Pollution

The legal literature on water pollution control has reached significant size. A good survey is Gindler, "Water Pollution and Quality Control."¹⁰⁰ There is substantial private and state statutory law in this field, which Gindler covers. This Primer will be limited to the federal law.

a. Federal Water Pollution Control Act

The Federal Water Pollution Control Act¹⁰¹ is the most important federal legislation on water pollution. Unfortunately, the Act seems deliberately designed to make it difficult for the person injured by pollution, much less a citizen group, to participate in its enforcement proceedings.¹⁰² Serious efforts should, however, be made by environmental lawyers to develop ways of increasing citizen participation in the enforcement proceedings.

Section 10¹⁰³ is the key section with regard to enforcement action. It sets out procedures for two types of enforcement: pollution abatement procedures,¹⁰⁴ and water quality standard enforcement procedures.¹⁰⁵

(1) Pollution Abatement Procedures

The pollution of "interstate or navigable waters" which endangers the health or welfare of any person is made subject to abatement.¹⁰⁶ Interstate waters are "all rivers, lakes, and otherr waters that flow across or form a part of State boundaries, including coastal waters."¹⁰⁷ Under this definition, state boundaries include international boundaries, coastal waters include the Great Lakes, and rivers, lakes and otherr waters include the entire body, regardless of how much of it flows across or forms part of a boundary.¹⁰⁸ "Navigable waters" are not defined but would seem to embrace the entire authority of Congress under the commerce [1 ELR 50014] clause.¹⁰⁹

The abatement proceeding is long and cumbersome. It involves three steps: conference, hearing and court action.¹¹⁰

The Conference The conference is an informal gathering of state and federal agency representatives.¹¹¹ The Secretary of the Interior must call a conference if requested by a state governor or state water pollution control agency, and interstate pollution is involved.¹¹² He must also call a conference whenever he has reason to believe, on the basis of reports, surveys or studies, that interstate pollution is occurring or that:

… substantial economic injury results from the inability to market shellfish or shellfish products in interstate commerce because of pollution referred to in subsection (a) and action of Federal, State or local authorities.¹¹³

The Secretary may call a conference when requested by a governor and intrastate pollution is involvedif, in his judgment, the effect of the pollution is of sufficient significance. He may also call a conference in certain cases of international pollution.¹¹⁵

The conferees are essentially the state water pollution control agencies, not polluters or persons injured.¹¹⁶ The state agencies (but apparently not the federal government) can bring anyone they choose to the conference. However, every person contributing to the alleged pollution or affected by it is to be given an opportunity to make a full statement of his views.¹¹⁷ The majority of the conferees may request an alleged polluter to file a report "based on existing data, furnishing such information as may reasonably be requested as to the character, kind, and quantity of such [pollution] and the use of facilities or otherr means to prevent or reduce such [pollution].¹¹⁸

Following a conference, the Secretary prepares for the conferees a summary of their discussions which includes the occurrence of pollution subject to abatement, the adequacy of measures taken toward abatement, and the nature of the delays being encountered in abating the pollution.¹¹⁹

The Hearing If at the close of a conference the Secretary believes abatement is not progressing and that any person's health and welfare is being endangered, he is required to recommend that the appropriate state agency take remedial action.¹²⁰ If appropriate action has not been taken within six months following the Secretary's recommendation, the Secretary is required to call a public hearing to be held before a board.¹²¹

The hearing is a formal proceeding. On the basis of the evidence presented the board must recommend remedial action to the Secretary if it "finds such pollution is occurring and effective progress toward abatement thereof is not being made…¹²² The Secretary must transmit these findings and recommendations, together with a timetable for compliance, to the person(s) causing the pollution and to the state and interstate pollution control agencies in the state(s) where the pollution is being discharged. The Secretary also may, in connection with a hearing, require a polluter to file a report similar to that which may be required at a conference.¹²³

Court Action If action is not taken in the specified reasonable time required to abate the pollution, the Secretary may request the Attorney General to bring an enforcement suit. (If the pollution is intrastate, the consent of the state's governor is required.)¹²⁴ In the words of the statute:

The court shall receive in evidence in any suit a transcript of the proceedings before the Board and a copy of the Board's recommendations and shall receive such further evidence as the court in its discretion deems proper. The court, giving due consideration to the practicability and to the physical and economic feasibility of securing abatement of any pollution proved, shall have jurisdiction to enter such judgment, and orders enforcing such judgment, as the public interest and the equities of the case may require.¹²⁵

The record of enforcement actions taken under the pollution abatement procedures reveals that the principal threat of the enforcement program is not the legal one. Of the fifty abatement conferences that have [1 ELR 50015] been held, only three have advanced to the hearing stage, despite the lack of compliance in the majority of cases.¹²⁶ Only one of these has resulted in court action.¹²⁷ In that case, United States v. City of St. Joseph, there has never been a final decision. Although the action resulted in a firm requirement of compliance, the federal court has retained jurisdiction without further comment since 1961.¹²⁸

(2) Water Quality Standard Enforcement Proceedings

The Water Quality Act of October 2, 1965, provides for the establishment of water quality standards and plans for their implementation and enforcement by the states or by the Secretary of Interior with regard to interstate waters, but not to merely navigable waters.¹²⁹ The standards must "protect the public health or welfare, enhance the quality of water and serve the purposes of [this Act]."¹³⁰ In establishing standards, the use and value of water for public water supplies, the propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and otherr legitimate uses must be considered.¹³¹

The process of enacting standards is substantially complete, although there are some areas of disagreement between the states and the Secretary which may require Secretarial action and review by a special hearing board.¹³² The most notorious and important issue has been the "no degradation" policy. By policy guideline the Secretary has required standards to provide that no water may be degraded below its present quality¹³³ (It is understood that some states have balked, claiming this requirement would give the Interior Department power to control industrial development.¹³⁴

Once standards are set, "The discharge of matter into interstate waters, or portions thereof, which reduces the quality of such waters below the water quality standards…," is subject to abatement by court action.¹³⁵ The discharge subject to abatement may be one that reaches interstate waters after discharge into a non-interstate tributary.¹³⁶ Any violater must be given 180 days notice¹³⁷ after which the Secretary may request the Attorney General to bring suit.¹³⁸ The standard for judicial review is de novo requiring the court to give "… due consideration to the practicability and to the physical and economic feasibility of complying with such standards."¹³⁹ To date only six enforcement proceedings involving standards have begun, and none has progressed beyond informal conferences with the Secretary.¹⁴⁰

The question arises as to how the two procedures outlined above mesh. It would seem that pollution abatement proceedings would still be applicable when water quality standards do not apply. The obvious examples are to navigable waters that are not interstate and to interstate waters prior to formal adoption of standards. One would hope that pollution abatement would also apply to any thpe of pollution in interstate waters not covered by adopted standards.

b. The Refuse Act

The Refuse Act, or more properly, section 13 of the Rivers and Harbors Act of 1899, makes it unlawful to discharge "any refuse matter of any kind or description whatever otherr than that flowing from streets and sewers and passing therefrom in a liquid state" into any navigable water of the United States, except as authorized by the Secretary of the Army.¹⁴¹ This Act is still fully alive and has in no way been replaced by the Federal Water Pollution Control Act.¹⁴² Section 16 of the Act makes violation of section 13 a misdemeanor.¹⁴³ Fines may not exceed $2,500, nor may they be less than $500, per violation. Imprisonment may not be for less than 30 days nor for more than for 1 year. Both fines and imprisonment may be imposed and for the same violation.¹⁴⁴ "Violation" under the Refuse Act is undefined, but it arguably applies to each [1 ELR 50016] separate day of discharge.¹⁴⁵ The United States is not limited to the inadequate criminal penalties and may bring a civil action to enjoin unlawful discharges.¹⁴⁶

The Act states that it is the "duty of the United States attorneys to vigorously prosecute all offenders" of the Refuse Act.¹⁴⁷ However, the Justice Department has indicated that it does not intend to prosecute violators at all if they are spending significant amounts of money to abate pollution under Federal Water Quality Administration programs.¹⁴⁸ This position appears to have softened only somewhat in the face of inquiries by members of Congress and conservation organizations.

The reluctance of the Justice Department to act has prompted citizens' suits to enforce the Act, with the citizens collecting half of any penalty imposed.¹⁴⁹ Such actions, if widely allowed, might encourage the Justice Department to do its duty under the Act.

The Refuse Act could conceivably become a powerful legal tool in combating water pollution. It combines fines, imprisonment and civil injunctive remedies to attack most forms of water pollution. Sewage is not covered by the Act, but sewage under the Act does not include industrial wastes; thus, any type of refuse, such as gasoline, is covered, regardless of its lack of effect on navigation.¹⁵⁰ Furthermore, there is no scienter requirement.¹⁵¹ Doubt exists that the citizen-plaintiff has a right to half the fine, but it seems clear from the statute itself that the discretion rested in the judge applies only with respect to the total fine imposed, not to the fraction of the fine to which the plaintiff is entitled.¹⁵²

c. Oil Pollution¹⁵³

The Oil Pollution Act of 1946¹⁵⁴ has been repealed by the 1970 Amendments to the Federal Water Pollution Control Act.¹⁵⁵ Section 11 of the Water Quality Improvement Act prohibits the dumping of oil in the navigable waters of the United States¹⁵⁶ and provides for fines up to $10,000 against anyone knowingly discharging oil into the water¹⁵⁷ or anyone failing to notify promptly any discharge.¹⁵⁸

Section 11 also establishes a National Contingency Plan for the immediate clean-up of oil spills with responsibility vested directly in the President.¹⁵⁹ Under this Plan the United States may coordinate all clean-up activities.¹⁶⁰ In case of emergency the President may require the U.S. District Attorney in the area to seek the necessary relief in federal district courts.¹⁶¹ The district courts have jurisdiction to grant "such relief as the public interest and the equities of the case may require."¹⁶²

Liability for oil spills is as follows:¹⁶³ The owner or operator of a vessel or an onshore or offshore facility will be liable at least for the cost of removing or dispersing the oil, unless he can prove the discharge was caused solely by an act of God, an act of war, negligence on the part of the United States, or an act or omission of a third party, regardless of his negligence. The extent of liability is up to $8,000,000 for onshore or offshore facilities, and for vessels it is $14,000,000 or $100 per gross ton, whichever is less. Liability for third parties is substantially the same as above.¹⁶⁴ This section does not affect the liability for damage to public or private property from the discharge or removal of any oil.¹⁶⁵

d. Control of Sewage from Vessels

The Water Quality Improvement Act of 1970 also provides for compulsory use of marine sanitation devices in all vessels operating in the navigable waters of [1 ELR 50017] the United States.¹⁶⁶ The Secretary of Interior must promulgate standards of performance for these devices,¹⁶⁷ and the Coast Guard then must devise regulations to implement and enforce these standards.¹⁶⁸ Eventually all vessels must be equipped with devices¹⁶⁹ and manufacturers may sell only sanitation devices certified by the Coast Guard.¹⁷⁰ Failure to comply may incur a civil penalty of not more than $5000 for each violation by a manufacturer¹⁷¹ and not more than $2000 for operators of vessels not equipped with a device.¹⁷²

State regulations which differ from federal requirements are prohibited, but a state may ask the Secretary to prohibit sewage disposal from vessels subject to state water quality standards.¹⁷³

e. Efederal Activities

By Executive Order 11288,¹⁷⁴ a significant program was outlined to control pollution emanating from federal installations and federal activities. The Water Quality Improvement Act of 1970, however, should settle any doubts about the responsibilities of federal agencies with regard to future water pollution.¹⁷⁵ The new law requires each federal agency having jurisdiction over any real property or facility to assure compliancewith applicable water quality standards.

This is accomplished by a complex permit system. Every applicant for a federal license or permit must first secure certification from the state or interstate water pollution control agency having jurisdiction over the waters in which the discharge will originate.¹⁷⁶ Unless the pollution control agency gives "… reasonable assurance… that such activity will be conducted in a manner which will not violate applicable water quality standards,"¹⁷⁷ the desired federal license must be denied. The certification requirements are waived, however, if the state or interstate agency fails or refuses to act within one year.¹⁷⁸

If the Secretary determines that the pollution may affect anotherr state, a hearing may be called by the federal licensing or permitting agency upon request of that otherr state.¹⁷⁹ If assurance of compliance cannot be achieved, the license or permit must not be issued.¹⁸⁰ If granted, the license or permit must be conditioned to insure compliance.¹⁸¹

Prior to operation of any licensed facility, the licensee or permittee must provide opportunity for review of the mode of operation to assure water quality standards will not be violated.¹⁸² If operations will violate the standards, the agency may suspend the license or permit until there is reasonable assurance of compliance.¹⁸³

In the case of activities affecting waters not subject to water quality standards (i.e., navigable, but not interstate waters), certification is at the discretion of the licensing or permitting federal agency.¹⁸⁴ And where construction has begun prior to enactment of the 1970 Act, certification must be obtained within three years from the date of enactment or the license or permit will terminate.¹⁸⁵

f. Interstate Compacts

When concerned with a pollution problem involving interstate waters, an attorney should always review any existing interstate compacts.¹⁸⁶

g. Thermal Pollution

Thermal water pollution is a particularly aggravated problem around nuclear installations. Originally the Atomic Energy Commission took the position that its statutory mandate did not allow it to impose on licensees any pollution control prerequisites, otherr than radiological ones. This position was upheld recently in the First Circuit.¹⁸⁷

[1 ELR 50018]

However, the A.E.C. apparently has changed its view. In the recently published "Statement of General Policy and Procedure: Implementation of the National Environmental Policy Act of 1969 (Public Law 91-190)," the Commission requires constuction-permit and operation license applicants to supply proof of compliance with the Federal Water Pollution Control Act as part of their "Environmental Report" which in turn will become an attachment to the Agency's § 102(2)(C) Statement. (35 Fed. Reg. 18469, 18473, Dec. 4, 1970).

2. Air Pollution

a. Air Quality Act of 1967

The primary federal air pollution control law is the Air Quality Act of 1967.¹⁸⁸ This Act provides for an enforcement scheme even more elaborate than the Federal Water Pollution Control Act discussed in the preceding chapter. There have been several legal articles which give a good description of its requirements.¹⁸⁹

Under the Act, the Secretary of Health, Education and Welfare is to designate atmospheric areas¹⁹⁰ and air quality control regions.¹⁹¹ In addition, he is required to publish air quality criteria¹⁹² and control technology data.¹⁹³

Following the designations of the control regions, etc., each state must, after public hearings, adopt ambient air quality standards¹⁹⁴ and an enforcement plan.¹⁹⁵ The standards and plan are to be based on the air quality criteria and control technology data for the particular air quality control regions. Economic and technological factors are to be considered, as well as health and welfare.

Enforcement proceedings similar to the Federal Water Pollution Control Act proceedings are provided. The Secretary may, at the request of a governor or, if "he has reason to believe that … pollution … is endangering the health and welfare of persons" in a state otherr than that which is discharging the pollutants, the Secretary may call a conference of interested pollution control agencies at which all interested parties can present their views.¹⁹⁶ After the conference, the Secretary makes his recommendations to the pollution control agencies for remedial action.¹⁹⁷ If after six months no satisfactory remedial action has been taken, the Secretary may call a hearing before a special hearing board.¹⁹⁸ The board's findings and recommendations are sent to the interested and affected agencies and to the various polluters.¹⁹⁹ After anotherr six months have gone by, the Secretary may request the Attorney General to bring an enforcement action if satisfactory action has not been taken to implement the board's recommendations.²⁰⁰ So far, there has been one abatement action in the courts. The law was generally upheld in this decision, though no pollution has yet been abated.²⁰¹ In addition to the Bishop case, 10 otherr conferences have been held.²⁰² Four of these dealt with single source pollution and the remainder with major metropolitan area pollution.

b. Federal Installations

President Johnson issued an Executive Order similar to that for water pollution control, providing detailed procedures for the prevention, abatement and control of air pollution caused by Federal installations and activities.²⁰³

c. Emergency Powers

The Air Quality Act of 1967 provides that in cases where pollution is presenting "imminent and substantial endangerment to the health of persons" and state and local authorities have not acted, the Secretary may request the Attorney General to institute judicial action to enjoin any contributor to such pollution.²⁰⁴

d. Vehicle Emission Standards

The federal air pollution control laws also require [1 ELR 50019] the Secretary of Health, Education and Welfare to establish exhaust emission standards for gasoline and diesel powered vehicles.²⁰⁵ The states are prohibited from adopting their own emission standards, with the exception of California.²⁰⁶

Standards for hydrocarbons and carbon monoxide have been set, and standards for nitrogen oxides and particulates have been proposed and are awaiting confirmation.²⁰⁷ Proposed amendments to the Clean Air Act would require a virtually pollution-free automobile by 1975²⁰⁸ and authorize withdrawal of official approval for any model failing to meet federal standards.²⁰⁹

3. Pesticides

The pesticide problem is a difficult one for the environmental lawyer at the federal level, primarily because the laws that cover the subject are inadequate. The Federal Insecticide, Fungicide and Rodenticide Act²¹⁰ administered by the Department of Agriculture, makes it unlawful to ship in interstate commerce any economic poison (dieldren, DDT, etc.) which is not registered under the Act. The principal purpose of the Act is to prevent misbranded articles from being sold in interstate commerce. The law, however, contains language that should prevent poisons which cannot be used safely from being registered.²¹¹ The statute also provides for deregistration when articles do not comply with statutory requirements.²¹²

A second statute is the Federal Food, Drug and Cosmetic Act, which prohibits the introduction into interstate commerce of adulterated food, including agricultural commodities which contain unsafe pesticide chemicals.²¹³ The statute is administered by the Secretary of Health, Education and Welfare. If a pesticide on a commodity exceeds prescribed tolerance levels, the commodity is adulterated. By regulation, the Secretary is "to set tolerance levels to protect the public health" and may set the level at zero.²¹⁴

Pesticides have recently been the subject of litigation in several important cases.²¹⁵ In EDF v. Finch, petitioners sought "zero tolerance level" determinations which would stop the use of DDT on agricultural commodities. The court ordered that petitioners' proposal for zero tolerances be published in the Federal Register and that the Department of Health, Education and Welfare begin proceedings under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., to set zero tolerances for DDT in produce. In EDF v. Hardin, petitioners requested an order that the Secretary of Agriculture suspend, and then cancel, the registrations of pesticides containing DDT under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 135(a) et seq. The court ordered the Department to begin cancellation proceedings within 30 days or to give detailed reasons for refusing to initiate proceedings. The Department chose the latter alternative and oral argument on the sufficiency of its reasons, the burden of proof and related matters was held September 9, 1970. The Court has not yet ruled. In Nor-Am Agricultural Products v. Hardin the Seventh Circuit affirmed an order of the district court which had issued a preliminary injunction restraining the Secretary of Agriculture from enforcing his order deregistering 17 mercury fungicide products. Arguments in Wellford v. Hardin were heard on November 18, 1970.

4. Noise

Section 10 of the Air Commerce Act of 1926²¹⁶ subjected air space to a public right of freedom of navigation above minimum safe altitudes.²¹⁷ Direct overflights from takeoffs and landings, however, can still result in a compensable taking under the Fifth Amendment (for U.S. Airports) or the Fourteenth Amendment (for state, county, or municipal airports). The landmark case is United States v. Causby,²¹⁸ which held the government liable for injury produced by airplane noise on a theory which combined elements of trespass (requirement of direct overflight) and nuisance (requirement of substantial injury to the landowner). A subsequent case held operators of airports otherr than the federal government also to be liable.²¹⁹ No matter [1 ELR 50020] how severe the noise is, federal courts tend to follow the strict Causby doctrine, not granting recovery unless airplanes fly directly over plaintiff's land.²²⁰

Recent erosion of the Causby doctrine gives reason to hope for the development of a more equitable basis for granting recovery. The technical requirement of an overflight has been abandoned by at least one federal district court and by at least three state courts.²²¹

There have been several attempts by local governments to regulate airplane noise by ordinance. The courts have held that the federal government has pre-empted the field and that such ordinances are invalid.²²² However, a more carefully drafted statute might have been upheld, one which established health and welfare levels rather than noise levels.

By Act of July 21, 1968,²²³ Section 611 was added to Title VI of the Federal Aviation Act of 1958.²²⁴ Section 611 is entitled "Control and Abatement of Aircraft Noise and Sonic Boom." Under Section 611 the Administrator of the FAA:

Shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the application of such standards, rules and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this title.

In setting standards and prescribing rules and regulations, the administrator is required to evaluate relevant data on the possibility of aircraft noise and sonic boom to obtain the highest degree of safety in the public interest. In addition, he must consider whether the proposed rule is appropriate for the environment in question. In any action to alter a certificate, a certificate holder is given notice and appeal rights which include the right to have the matter heard again by the National Transportation Safety Board. So far the Administrator has issued regulations for newly certified airplanes. These regulations do not cover the SST or sonic boom.²²⁵ However, the Environmental Defense Fund, Inc., has asked the Federal Aviation Administration (FAA) to determine immediately that noise standards applicable to subsonic aircraft will be applied to the supersonic transport (SST) which now receives federal support for its research and development programs. Petitioner filed this petition on May 25, 1970. The FAA responded on August 4, 1970 by filing an Advance Notice of Proposed Rule Making regarding noise standards for civil supersonic aircraft.²²⁶

There is also an action in U.S. District Court (D.D.C.) to compel defendant Volpe, the Secretary of Transportation, to comply with the National Environmental Policy Act before recommending to Congress that it appropriate $289 million for further development of the supersonic transport. The case is currently pending in the District Court.²²⁷

It has been suggested in at least one case that the CAB must consider environmental impact issues in carrying out its regulatory functions.²²⁸ It would seem only logical that a certificate of public necessity and convenience would include the impact of noise and pollution upon the neighborhood affected.

5. Aesthetic or Visual Pollution

There is no general law, state or federal, to protect the aesthetic quality of the environment.²²⁹ However, statutes are passed from time to time which are directed to the aesthetic or visual aspect of some project, area or type of project. The billboard laws are an example. Serious questions have been raised in the past concerning the propriety of such laws, and will certainly be raised in the future. Such laws at the state level are arguably a proper use of the police power. At the federal level they fall within the welfare clause.

Some courts accept aesthetic arguments alone; otherrs only accept them in a mix with otherr considerations. Further, statutes directed to an aesthetic purpose are often justified on otherr than aesthetic grounds, e.g. safety, under the state police power. Whatever the case, several states have given [1 ELR 50021] esthetics a place within the police power.²³⁰

At the federal level aesthetic considerations are proper under the welfare clause. In Berman v. Parker²³¹ Justice Douglas said:

The concept of the public welfare is broad and inclusive … The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. …²³²

The control which the Federal Highway Act authorizes over billboards,²³³ yards, landscaping and otherr aesthetic considerations²³⁴ has been discussed in Markham Advertising Co. v. State²³⁵ and Southeastern Displays, Inc. v. Ward.²³⁶ Markham and Southeastern Displays, which generally uphold state billboard control laws, also hold that the Federal Highway Act did not preempt the field. The Act does not prohibit a state statute which regulates (not "takes") without compensation or which is stricter than federal requirements.

B. LAND AND WATER USE

Land and water resource uses have created broad categories of environmental and conservation problems. Because of the numerous specialized laws which govern the public domain, however, such land use problems are treated in this outline under a separate heading (with the exception of strip mining on the public domain). The most important category in this topic will not be discussed in this outline because of the paucity of federal law: the protection of private open space, agricultural land, wetlands and forest land. The foremost priority for new legislative action by environmentalists should be to enact legislation establishing the public stake in the management and use of such private lands.

While federal control over private land use is virtually non-existent, federal control over water resources is fairly broad. For that reason, water will be taken up first. The most important federal control over water stems from the commerce clause, and a large share of present-day private land abuse can be directly related to interstate commerce.

1. Rivers, Estuaries and Coastal Waters

a. Basis of Federal Control: The Navigational Servitude

The federal government, by virtue of a navigation easement or servitude²³⁷ under the commerce clause,²³⁸ controls the use of the navigable waters of the United States. Navigable waters are those which are navigable in fact in their natural condition or susceptible to navigation through reasonable improvements.²³⁹ The power over those waters is not limited to matters related to navigation, but is a plenary power to prevent any structures in navigable waters.²⁴⁰ Navigable waters are not subject to private ownership,²⁴¹ a concept the Supreme Court considers "inconceivable."²⁴² The servitude is in the stream bed, below ordinary high water mark,²⁴³ and to the entire bed, not just that under the navigable part.²⁴⁴

b. Basis of Federal Control: Reserved Rights

In addition to the servitude in navigable waters, the United States has rights in non-navigable streams. The most important, and the only ones discussed here, are the reserved rights in western streams. The Supreme Court has recognized that when the United States acquired ownership of the public domain by cession from foreign governments, quite logically it acquired rights in the waters or ceded territory as part of land ownership. Further, without permission of the United [1 ELR 50022] States no one could subsequently acquire property rights in such waters.²⁴⁵ The Desert Land Act of March 3, 1877,²⁴⁶ which applies in thirteen Western States, authorizes the acquisition of property rights by appropriation against the United States under state law or custom.²⁴⁷ The Desert Land Act, however, was not a blanket conveyance of the federal title. The United States retains the power to reserve unappropriated waters from future private appropriation for its own use or for the utilization of such waters by otherrs. Although it frequently is explicit,²⁴⁸ reservation need not be spelled out; it may be implied in the reservation of public lands for a particular purpose.²⁴⁹

c. Exercise of Federal Control: The Rivers and Harbors Act of 1899

We have referred above to section 13 of the Rivers and Harbors Act of 1899 (the Refuse Act, supra). That section and otherr sections of the Act²⁵⁰ are a major source of extensive federal control over the nation's water resources. That act, among otherr things, regulates the construction of bridges, dams, dikes and causeways,²⁵¹ and regulates general obstructions by structures and fills.²⁵² Any project built in violation of the Act is subject to injunction to enforce removal.²⁵³

A recent and perhaps most important decision under this Act is Citizens Committee for the Hudson Valley v. Volpe.²⁵⁴ The State of New York had planned, and was on the verge of building, a six-lane highway on 9,500,000 cubic yards of fill extending 1,300 feet into the Hudson River. The state applied to the Corps of Engineers for a permit to fill under 33 U.S.C. § 403. The permit was authorized by the Secretary of the Army and issued by the Corps as is required by § 403. The court held, however, that the project fell under 33 U.S.C. § 401 and therefore the additional approval of Congress would be required for various dikes in the project and the approval of both Congress and the Secretary of Transportation for the causeways in the project.²⁵⁵

The Supreme Court has upheld the refusal of the Secretary of the Army to issue a permit under § 403 for reasons slightly connected with conservation, but, more importantly, having absolutely nothing to do with navigation.²⁵⁶

As in the case of refuse dumping, the Corps is the major funnel for dredge and fill permits. Literally thousands cross the Corps desk annually. Work needs to be done by environmental lawyers concerning review of permit procedures.²⁵⁷

d. Exercise of Federal Control: The Federal Power Act

The Federal Power Act of June 10, 1920 shifted the power to license private dams on navigable waters and federal reservations to the Federal Power Commission.²⁵⁸ Much of the responsibility for the rapid destruction of our river resources through private development can be laid to this Commission and its narrow view of the public good. Two recent cases, however, have given hope that the FPC is being forced to consider environmental questions in reaching decisions.

In Scenic Hudson Preservation Conference v. Federal Power Commission²⁵⁹ the court pointed out that the Commission was obligated under 16 U.S.C. § 803(a) to insure that any project "will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water power development, and for otherr beneficial public uses, including recreational purposes."²⁶⁰ Recreational purposes, according to the court, encompass the conservation of natural resources and the preservation of natural beauty.²⁶¹ In remanding [1 ELR 50023] the case for further proceedings before the Commission, the court made it clear that the burden was on the Commission to take "as a basic concern the preservation of natural beauty."²⁶²

In Udall v. Federal Power Commission²⁶³ the Supreme Court approved the Scenic Hudson approach. The Commission was instructed to take recreational purposes into account in a comprehensive river plan. Such purposes included the preservation of anadromous fish, (e.g., salmon).

e. Exercise of Federal Control: Federal Projects

Unfortunately there exists widespread abuse of rivers, wetlands and otherr water resources by the federal government. This destruction has now reached the point where we are in danger of having only a memory to save. It is therefore of great importance that means be found to protect rivers from dam builders and dredgers in much the same way that Scenic Hudson and FPC v. Udall managed to temper FPC licenses.

The worst, but by no means the only, offenders are projects constructed under the reclamation laws by the Bureau of Reclamation,²⁶⁴ flood control projects and dredging projects of the Corps of Engineers built under various Flood Control Acts²⁶⁵ and Rivers and Harbor Acts,²⁶⁶ the projects of the Tennessee Valley Authority,²⁶⁷ and the projects built under the Columbia River Basin Project.²⁶⁸

The declaration of policy of the Federal Water Project Recreation Act comes close to providing the necessary means.²⁶⁹

It is the policy of the Congress and the intent of this Act that (a) in investigating and planning any Federal Navigation, flood control, reclamation, hydroelectric, or multiple-purpose water resource project, full consideration shall be given to the opportunities, if any, which the project affords for outdoor recreation and for fish and wildlife enhancement and that, wherever any such project can reasonably serve either or both of these purposes consistently with the provisions of this Act, it shall be constructed, operated, and maintained accordingly. …

What is to be done when a proposed project cannot take both kinds of values into account and is utterly destructive of recreational or wildlife values? A literal reading of the Act could mean that the project is built anyway; a more reasonable reading calls for a careful consideration of the total costs of the project. With federal projects, of course, public policy considerations which tend to introduce a wider range of factors and costs, can be overriden by separate authorizations and by appropriations because such authorizations and appropriations can always be read as exceptions to any general policy statement.

2. Strip Mining

Unfortunately, there is no general federal law either to prevent strip mining or to reclaim stripped lands. We will outline briefly the general state regulatory scheme and mention one federal law that may be of some assistance in solving this distressing problem. In addition, we will list the federal laws that apply to strip mining in the public domain.

A number of states, mostly in Appalachia, have established strip mining regulations.²⁷⁰ Generally speaking, these laws require a permit in order to strip. A performance bond must be posted with, and periodic reports supplied to, a state agency. Some states require the land to be graded and planted to specifications within set time limits after mining is completed. The state agency must certify compliance. Failure to comply can result in forfeiture of the bond and prohibition against the issuance of additional permits. Criminal penalties are usually provided for those who strip without a permit. Some states give an agency power to deny permits in order to protect exceptional scenic values.²⁷¹ A few states, such as Pennsylvania and West Virginia, have active restoration programs.

The federal water pollution control laws should provide a means of controlling strip mining practices which result in severe acid pollution or siltation that lowers the quality of water below federal water quality standards.²⁷²

The basic hurdle to controlling strip mining on the public domain is the scheme of the Mining Law of 1872²⁷³ which permits location and patent almost without controls. Fortunately the laissez faire principle of this law has been eroded to some extent and some tools for the control of stripping have been developed:

(i) The Mineral Leasing Act of 1920²⁷⁴ removed coal, phosphate, potassium, oil, oil shale, asphalt, bitumen and gas (italics denote important strip [1 ELR 50024] minerals) from disposition under the Mining Law of 1872 and established a system of discretionary leasing by the Secretary of the Interior. The Secretary has authority to prescribe mining restoration and standards.

(ii) The Mineral Leasing Act for Acquired Lands Act of 1947²⁷⁵ essentially extends the leasing scheme of the Mineral Leasing Act of 1920 to 52 million acres of acquired lands not covered by that Act. In addition to conditions imposed by the Secretary of the Interior, the lease is subject to such conditions as the head of the Department, independent establishment or instrumentality having jurisdiction over the lands wishes to impose.

(iii) Statutes provide for mineral leasing on 50 million acres of Indian lands.²⁷⁶ The Secretary of the Interior has the authority to control the terms of any leases under these laws.

(iv) The Materials Act of 1947²⁷⁷ gives the Secretary of the Interior the authority to dispose, among otherr things, of sand, stone and gravel on public land. The Secretary has the authority needed to enforce good conservation practice.

(v) The Act of July 23, 1955²⁷⁸ removed sand, stone, gravel and otherr materials from the Mining Law of 1872. In addition, the Act gives the United States authority to manage the surface resources of any new mining claim prior to patent, but is somewhat ambiguous as to whether strip mining can be controlled.

(vi) Section 402, Reorganization Plan No. 3 of 1946²⁷⁹ gives the Secretary of the Interior power to dispose of certain minerals from certain acquired lands under such statutes as the Bankhead-Jones Farm Tenant Act²⁸⁰ and the Weeks Act.²⁸¹ The Secretary of the Interior can regulate the conditions of disposal. The Secretary of Agriculture also retains certain controls.

(vii) Public lands may be used for materials for Public Aid Highways.²⁸² The head of the agency administering such lands can stop or regulate the use consistent with public interest and the primary purposes for which the lands are reserved.

3. Right-of-way Planning and Routing (Highway, Pipeline, Power Line, etc.) and Plant Siting

Section 4(f) of the Department of Transportation Act of 1966²⁸³ is of overriding importance in the field of federal transportation projects. This section prohibits the approval of any transportation program or project which "requires the use" of any publicly owned land in a park, recreation area, wildlife and waterfowl refuge or historic site if the federal, state, or local officials having jurisdiction determine that such land has national, state, or local significance, unless there is no feasible and prudent alternative, and unless such a program includes all possible planning to minimize the harm. It would seem that Section 4(f) applies to all Departmental programs, including highway routing, airport location or expansion, bridge or causeway construction over navigable streams and the funding of high-speed railways.

Lawyers should think imaginatively about what the term "use" could mean in the phrase "require the use of … land." Thus a bridge, "using" one piece of property, could be looked on as "using" anotherr piece of land which its location forces a non-federal connecting highway to have to "use." The various impacts of an airport on parkland, although the airport is not located on it, should be examined to determine if they can be considered as requiring the "use" of the park. Perhaps even a project such as the SST can be examined under 4(f) to determine what it "uses" and whether there is a feasible and prudent alternative.²⁸⁴

It should also be remembered in approaching transportation problems that section 4(f) and section 2(b)²⁸⁵ provide that:

It is hereby declared to be the National Policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.

The Federal Power Commission has prepared policy guidelines which apply to natural gas companies for the selection, clearing and maintenance of rights-of-way and for the construction and maintenance of above-ground facilities. Order No. 407 (July 10, 1970) is thus concerned primarily with aspects of the protection of scenic, historical and cultural values. The guidelines, while somewhat weaker than those originally proposed (34 C.F.R. 9348), afford some likelihood of improvement in natural gas line routing practices.

4. Fish and Wildlife

The important case of Missouri v. Holland²⁸⁶ is [1 ELR 50025] famous for Justice Holmes's elucidation of the Treaty Powers. It is likewise the starting point in any discussion of federal power to protect wildlife. As the opinion relates, statutory attempts by Congress to protect migratory birds had been declared unconstitutional. On December 8, 1916 the government entered in a treaty with Great Britain to protect migratory birds, and Congress enacted legislation to implement the Treaty.²⁸⁷ Missouri brought the suit to prevent a federal game warden from enforcing the Act on the ground that the Act and Treaty were unconstitutional. Holmes upheld the Treaty and Act and observed, "But for the treaty and the statute there soon might be no birds for any powers to deal with."²⁸⁸

When federal property is involved no treaty is required to control wildlife²⁸⁹ and none would be needed to protect wildlife in the conduct of federal projects. States may also regulate fish and wildlife forpurposes of conservation within their police power.²⁹⁰

The many federal enactments designed to protect fish and wildlife are listed with brief comments, as follows:

a. Migratory Birds Treaties

The United States entered into a Treaty with Great Britain on August 16, 1916, to protect migratory birds²⁹¹ and into a Treaty with Mexico on February 7, 1936 to protect migratory birds and game mammals.²⁹² Congress has enacted legislation to implement these treaties.²⁹³ The scheme of protection is elaborate, including hunting restrictions, licensing, and refuge systems.

b. General Wildlife Protection

On October 12, 1940 the United States entered into a convention with several otherr American republics to protect nature and wildlife.²⁹⁴ This Treaty obligates the signatories to establish and protect national parks, wildlife preserves, nature monuments and strict wilderness reserves. The Treaty also provides for the protection of migratory birds and states:

(1) The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate lawmaking bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries, but not included in the national parks, national reserves, nature monuments or strict wilderness reserves referred to in Article II hereof. Such regulations shall contain proper provisions for the taking of specimens of flora and fauna for scientific study and investigation by properly accredited individuals and agencies.²⁹⁵

The convention further provides:

The protection of the species mentioned in the Annex to the present Convention, is declared to be of special urgency and importance. Species included therein shall be protected as completely as possible, and their hunting, killing, capturing, or taking, shall be allowed only with the permission of the appropriate government authorities in the country. Such permission shall be granted only under special circumstances, in order to further scientific purposes, or when essential for the administration of the area in which the animal or plant is found.²⁹⁶

To what extent the obligations above are enforceable is conjectural. In substance, however, they cover a problem which demands urgent action.

c. The Anadromous Fish Act

In 1965 Congress passed the Anadromous Fish and Great Lakes Fisheries Act.²⁹⁷ which on its surface appears rather weak. The Act authorizes the Secretary of the Interior to enter into cooperative agreements with a state "for the purpose of conserving, developing, and enhancing within the several states the anadromous fishery resources of the Nation that are subject to depletion from water resources development and otherr causes."²⁹⁸ The Secretary is also authorized to conduct studies and make recommendations "regarding the development and management of any stream or otherr body of water for the conservation and enhancement of anadromous fishery resources and the fish of the Great Lakes that ascend streams to spawn."²⁹⁹

In spite of its weaknesses the Act was enough to stop the FPC from granting a license for a dam at High Mountain Sheep.³⁰⁰ In that decision Justice Douglas ruled that the Anadromous Fish Act is in pari materia with the Federal Power Act,³⁰¹ that the Secretary of the Interior has a special mandate to appear in FPC proceedings to introduce evidence and participate fully in proceedings affecting anadromous fish,³⁰² and that a determination whether the proposed project is in the [1 ELR 50026] public interest can only be made after an exploration of all relevant issues including "the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife."³⁰³

d. Fish and Wildlife Coordination Act³⁰⁴

This Act establishes a "national policy"³⁰⁵ "that wildlife conservation shall receive equal consideration and be coordinated with otherr features of water-resource development programs."³⁰⁶ In a recent decision the Federal District Court for the Middle District of Florida held that the Corps of Engineers could not consider fish and wildlife matters when reviewing a license request to fill navigable waters.³⁰⁷ However, the U.S. Court of Appeals reversed³⁰⁸ holding that the Secretary of the Army could properly deny a dredge and fill permit solely on environmental grounds. Thus a strong precedent upholding the Act was established. The Act was the subject of a recent report of the House Committee on Government Operations which analyzes and criticizes as "unlawful" the Interior and Army Departments' failure to follow the procedures of the Act in one specific case.³⁰⁹

e. The Fish and Wildlife Act of 1956³¹⁰

The Act establishes the United States Fish and Wildlife Service and the Bureaus of Commercial Fisheries and of Sport Fisheries and Wildlife and authorizes various functions and programs thereunder. Of general interest in the declaration of policy set forth is 16 U.S.C. § 742a.

f. Other Acts of Interest

The following may be useful to environmental attorneys with a case involving wildlife: Wildlife Restoration Act, 16 U.S.C. § 669, et. seq., Military Reservation Conservation Program Act, 16 U.S.C. § 670a, et seq.; Act to Preserve Game Birds and Other Wild Birds, 16 U.S.C. § 701; Eagle Protection Act, 16 U.S.C. § 688, et seq.; Endangered Species Act, 16 U.S.C. § 668aa, et. seq.; Fur Seal Act of 1966, 16 U.S.C. § 1151, et seq.; Northern Pacific Halibut Act, 16 U.S.C. § 722, et seq.; Sockeye Salmon Fishery Act, 16 U.S.C. § 776, et seq.; Sponge Taking Laws, 16 U.S.C. § 781, et seq.; Laws regulating Interstate Transportation of Certain Game Fish, 16 U.S.C. § 851, et seq.; Whaling Convention Act, 16 U.S.C. § 916 et seq.; Great Lakes Fisheries Act, 16 U.S.C. § 931, et seq.; Tuna Conventions Act, 16 U.S.C. § 951, et seq.; Northwest Atlantic Fisheries Act, 16 U.S.C. § 981 et seq.

C. THE PUBLIC DOMAIN

The Federal Public Domain, though much reduced from its original grandeur, is a treasure of hundreds of millions of acres. An elaborate scheme of conservation laws, suffering from a lack of unifying philosophy and from ad hoc, sporadic additions, has been built up in this century to govern that domain. It has never quite replaced the laissez faire philosophy of 19th century laws. This primer will not begin to touch the complexities of this law, but will simply mention some of the important laws which govern the public domain.

1.The Recreation Concept

The word "recreation" now appears frequently in laws pertaining to the public domain. A run through Title 16 of the United States Code would probably produce over a hundred references, although the meaning of the concept is still unresolved. Nevertheless, "recreation," if carefully defined, can become an important fulcrum in the management of the public domain. Recreation must include the concepts of natural beauty and resource conservation (as suggested in Scenic Hudson)³¹¹ and the preservation of wildlife (as suggested in Udall v. Federal Power Commission.) Indeed, the concept must come to include those things that lead to the cultivation and flowering of the human spirit and, hopefully, to exclude eventually certain fatuous, time and money-wasting "sports" which make outrageous demands on the land and the economy.

2. The National Forests

The Congressional policy for the management of the National Forests is found in the Multiple-Use Sustained-Yield Act of 1960.³¹² The first section of the Act provides, inter alia, that:

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed and wildlife and fish purposes. …³¹³

Section two of the Act provides:

The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. The establishment [1 ELR 50027] and maintenance of areas of wilderness are consistent [therewith].³¹⁴

"Multiple Use" as defined in the Act³¹⁵ recognizes that not all land will be used to produce all the various resources and requires that the National Forests be "… utilized in the combination that will best meet the needs of the American people; … and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output."

The seriousness of the statutory policy mandate has now been tested in Parker v. United States.³¹⁶ In that case the plaintiffs alleged that the Forest Service had given no consideration to any factor except timber management in advertising for bids to cut 4.3 million board feet of timber in the East Meadow Creek area of the White River National Forest. The District Court held that because the Meadow Creek area met the minimum classification requirements of the Wilderness Act and Forest Service regulations, the President and Congress must classify the land. Until that time, defendants are enjoined from harvesting and selling timber.

3. National Parks

National Park law presents the lawyer with a great number of statutes. Almost every park is created under its own statute which invariably has its own policy guidelines.³¹⁷ Furthermore, there are various tracts which are administered by the Park Service but have a designation otherr than "National Park" and, in varying degrees, are not appropriate for administration as a National Park. Thus, there are National Military Parks,³¹⁸ National Seashores and National Seashore Recreational Areas,³¹⁹ National Scenic Riverways,³²⁰ National Recreation Areas,³²¹ and National Lakeshores.³²² In addition, there are the National Monuments, created under the Antiquities Act of June 8, 1906 by Presidential proclamation.³²³ Many of these, such as Glacier Bay, are on the scale of a National Park and should be managed as such.

Despite the jumble of several hundred statutory provisions, the overriding mandate of the National Park Service is clear:

The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified, except such as are under the jurisdiction of the Secretary of the Army, as provided by law, by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the some in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.³²⁴ (Emphasis added)

In a later Act Congress has said:

… the Congress hereby finds that the preservation of park values requires that such public accomodations, facilities, and services as have to be provided within those areas should be provided only under carefully controlled safeguards against unregulated and indiscriminate use, so that the heavy visitation will not unduly impair these values and so that development of such facilities can best be limited to locations where the least damage to park values will be caused. It is the policy of the Congress that such development shall be limited to those that are necessary and appropriate for public use and enjoyment of the national park area in which they are located and that they are consistent to the highest practicable degree with the preservation and conservation of the areas.³²⁵

It would seem that under these strong statutory instructions the Secretary of the Interior would be loath to permit any use which subordinates the overriding policy to anotherr use. This proposition hopefully will be tested in the Mineral King Litigation³²⁶ where plaintiffs have alleged, among otherr things, that the Secretary has authorized construction of a highway in the Park that will serve no Park purpose. Such a test, however, has been forestalled pending appeal to the Supreme Court, because the 9th Circuit has held that the Sierra Club does not have standing to challenge the development plans for Mineral King Valley.

4. Public Lands Administrated by the Bureau of Land Management

By far the largest part of the public domain is under the jurisdiction of the Bureau of Land Management. Such lands are put to many uses and are governed by many diverse laws. We have already mentioned the [1 ELR 50028] mining laws (which also apply to National Forests).³²⁷ Anachronisticly, much of this land is still subject to entry and patent, not only under the mining laws, but also under the Homestead Laws,³²⁸ the Desert Land Laws³²⁹ and miscellaneous otherr acts. Happily a great portion of these lands is reserved under the Taylor Grazing Laws³³⁰ and otherr laws.³³¹

a. The Classification and Multiple Use Act of 1964³³²

The Act is one of the most important acts now governing the public domain. 43 U.S.C. § 1411 provides, inter alia:

Consistent with and supplemental to the Taylor Grazing Act of June 28, 1934, as amended, and pending the implementation of recommendations of the Public Land Law Review Commission:

(a) The Secretary of the Interior shall develop and promulgate regulations containing criteria by which he will determine which of the public lands and otherr Federal lands, including those situated in the State of Alaska exclusively administered by him through the Bureau of Land Management, shall be (a) disposed of because they are (1) required for the orderly growth and development of a community, or (2) are valuable for residential, commercial, agricultural (exclusive of lands chiefly valuable for grazing and raising forage crops), industrial, or public uses or development, or (b) retained, at least during this period, in Federal ownership and managed for (1) domestic livestock grazing, (2) fish and wildlife development and utilization, (3) industrial development, (4) mineral production, (5) occupancy, (6) outdoor recreation, (7) timber production, (8) watershed protection, (9) wilderness preservation, or (10) preservation of public values that would be lost if the land passed from Federal ownership. …

(b) The Secretary of the Interior shall, as soon as possible, review the public lands as defined herein, in the light of the criteria contained in the regulations issued with this section to determine which lands shall be classified as suitable for disposal and which lands he considers to contain such values as to make them more suitable for retention in Federal ownership for interim management under the principles enunciated in this section. In making his determinations the Secretary shall give due consideration to all pertinent factors, including, but not limited to, ecology, priorities of use, and the relative values of the various resources in particular areas.

43 U.S.C. § 1413 provides:

The Secretary of the Interior shall develop and administer for multiple use and sustained yield of the several products and services obtainable therefrom those public lands that are determined to be suitable for interim management in accordance with regulations promulgated pursuant to this sub-chapter.

43 U.S.C. § 1415 gives the following definitions:

(a) The term "public lands" means any lands (1) withdrawn or reserved by Executive Order Numbered 6910 of November 26, 1934, as amended, or 6964 of February 5, 1935, as amended, or (2) within a grazing district established pursuant to the Act of June 28, 1934, as amended, or (3) located in the State of Alaska, which are not otherrwise withdrawn or reserved for a Federal use or purpose.

(b) "Multiple Use" means the management of the various surface and subsurface resources so that they are utilized in the combination that will best meet the present and future needs of the American people; the most judicious use of land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustment in use to conform to changing needs and conditions; the use of some land for less than all of the resources; and harmonious and coordinated management of the various resources, each with the otherr, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.

(c) "Sustained yield of the several products and services" means the achievement and maintenance of a high-level annual or regular periodic output of the various renewable resources of land without impairment of the productivity of the land.

Public notice is required to be given for all proposed classifications over 2,560 acres.³³³ Regulations of the criteria required by 43 U.S.C. § 1411 were promulgated on October 5, 1965.³³⁴ Classifications are made pursuant to administrative procedures, including hearings, under the criteria regulations. Although the Act is not clear, the Department of the Interior has decided that classifications for retention will continue indefinitely,³³⁵ although the authority to classify expires six months after the Public Land Law Review Commission submits its report.³³⁶ As of January 31, 1969, about 138 million acres were classified for retention, and about 2.5 million acres classified for disposal. Anotherr 19 million have been proposed for classification. BLM has estimated about 10 million acres would be classified for disposal.³³⁷

It seems clear that there is a great stake not only in what and how much land is classified for disposal, but [1 ELR 50029] also for what reasons land is classified for retention. For example, land may be classified for retention as wilderness. Conceivably, more land is involved than under the Wilderness Act.³³⁸

Anotherr important potential of the Act is the power of the Secretary to protect lands from the operation of the mining laws. It is true that the Act provides that none of its provisions shall restrict prospecting for, locating, developing, mining, leasing, or patenting the mineral resources of the lands to which this Act applies.³³⁹ This section means that the Act itself does not affect the mining laws. However, classification actions taken under the Act can affect mining, because the regulations provide that public lands classified for retention are to be segregated from disposal that could "interfere significantly" with multiple use management or "impair or prevent, to an appreciable extent, the realization of public values in the lands. …"³⁴⁰ and that "land shall not be closed to mining location unless the nonmineral uses would be inconsistent with and of greater importance to the public interest than the continued search for a deposit of valuable minerals.³⁴¹ Very little land has been segregated by classification from mining. Thus we may be witnessing one of the great missed opportunities of conservation history.

The classifications are not immutable. By regulation lands classified for retention may be reclassified for disposal.³⁴² Hopefully Interior will consider this one way street at a dead end when its general power to classify expires.

b. The Taylor Grazing Act of 1934³⁴³

This Act, together with the 1934³⁴⁴ and 1935³⁴⁵ executive withdrawal orders, afford extensive protection for the public domain. Under it grazing districts were set and a Grazing Service was established to protect and administer the districts. The major administrative problem has been controlling overgrazing. At present the controversy has polarized around user fees, which BLM seeks to raise to cover management costs.

Range stock raising has been declining in recent years in favor of feed lot raising. User fees reflecting true costs would shift the competitive advantage further in the direction of the feed lots. This would have the effect of reducing somewhat the pressure on the grazing lands.

The grazing lands are not managed solely for grazing. The Classification and Multiple Use Act requires the Secretary to take otherr values than grazing into account, especially the conservation of wildlife.³⁴⁶

c. Mining Laws

The mining laws have been discussed earlier under strip mining.³⁴⁷ The mining law of 1872,³⁴⁸ the mineral leasing laws,³⁴⁹ the Materials Act,³⁵⁰ the Act of July 23, 1955,³⁵¹ and otherrs are primarily the concern of the Bureau of Land Management, but the responsibility is shared with the Secretary of the Interior, the Secretary of Agriculture and the Forest Service. The Secretary of the Interior has the authority to permit prospecting, development and utilization of the mineral resources of lands under his jurisdiction. The BLM and the Forest Service both are concerned with rights-of-way across national forests, for mining and otherr purposes. The Department of Agriculture has jurisdiction over mining claims made within national forests, and the Secretary is authorized to "regulate" any "occupancy" and "use" of the forest land. Nevertheless, we must look primarily to the BLM to protect the public domain from abuse by the mineral industry. As with the Corps in dredging and refuse permits, attorneys concerned with the environment may have to litigate BLM's handling of mineral leases.

As would be expected, the law of mining and mineral leasing is quite complex. United States v. Coleman,³⁵² established a strict marketability test for establishing a claim under the Mining Law of 1872 and upheld the integrity of the Act of July 23, 1955, which removed common building stone from the mining laws and placing its disposal under the Materials Act of 1947.

5. National Wildlife Refuge System

Congress has created by statute many wildlife refuges³⁵³ and has authorized the creation of otherr refugues by executive order under specified conditions.³⁵⁴ In addition, the President has reserved many refuges on this own initiative.³⁵⁵ These refuges are [1 ELR 50030] administered under the United States Fish and Wildlife Service of the Department of the Interior.³⁵⁶ Since 1966, they have been administered as the National Wildlife Refuge System.³⁵⁷

Statutory policy guides for the administration of wildlife refuges are scattered about in Title 16.³⁵⁸ One would expect such policy guides, when analyzed, to show a consistent, high regard for the integrity of the refuges.The protection offered wildlife, however, is ambiguous. Section 4 of the Act of October 15, 1966³⁵⁹ provides:

(d) The Secretary is authorized, under such regulations as he may prescribe, to:

(1) permit the use of any area within the System for any purpose, including but not limited to hunting, fishing, public recreation and accommodations, and access whenever he determines that such uses are compatible with the major purposes for which such areas were established: Provided, that not to exceed 40 percentum at any one time of any area that has been or hereafter may be acquired, reserved or set apart as an inviolate sancturay for migratory birds, under any law, proclamation, Executive Order, or public land order may be administered by the Secretary as an area within which the taking of migratory game birds may be permitted under such regulations as he may prescribe; and

(2) permit the use of, or grant easements in, over, across, upon, through, or under any areas within the System for purposes such as but not necessarily limited to, power-lines, telephone lines, canals, ditches, pipelines, and roads, including the construction, operation, and maintenance thereof, whenever he determines that such uses, are compatible with the purposes for which these areas are established.

The Act of September 28, 1962³⁶⁰ reads, in part, as follows:

In recognition of mounting public demands for recreational opportunities on areas within the National Wildlife Refuge System, national fish hatcheries, and otherr conservation areas administered by the Secretary of the Interior for fish and wildlife purposes; and in recognition also of the resulting imperative need, if such recreational opportunities are provided, to assure that any present or future recreational use will be compatible with, and will not prevent accomplishment of, the primary purposes for which the said conservation areas were acquired or established, the Secretary of the Interior is authorized, as an appropriate incidental or secondary use, to administer such areas or parts thereof for public recreation unless in his judgment public recreation can be an appropriate incidental or secondary use: Provided that such public recreation use shall be permitted only to the extent that is practicable and not inconsistent with otherr previously authorized Federal operations or with the primary objectives for which each particular area is established. …

The problems that can arise under this type of statute are illustrated by the Mineral King litigation.³⁶¹ There the Sequoia National Game Preserve,³⁶² which, because of historical accident is administered by the Forest Service rather than the Fish and Wildlife Service, is the site of a planned massive recreational ski development. The development appears contrary to the "primary" or "major" purposes of a refuge, yet the governments is willing to let the development take place.

6. Wilderness

In 1964 Congress passed the Wilderness Act.³⁶³ This Act provides congressional protection for a few named wilderness areas and provides a plan whereby lands within the National Forests, National Parks and National Wildlife Refuges are to be reviewed so that appropriate areas may be set aside for inclusion in a National Wilderness Preservation System. Of immediate interest to conservationists is the timetable of 16 U.S.C. § 1132(c). In that section the Secretary of the Interior is given 10 years to complete his review. One third of the reviews were to be completed in three years and two thirds in seven years. The Department of the Interior is seriously behind in its review of National Parks.³⁶⁴ Wilderness has been the subject of litigation in three recent cases.³⁶⁵

7. Alaska

The conservation of Alaska, our last great wilderness is highly complicated by two developments: the selection (claim-staking) of state lands and by plans to exploit oil reserves on the north slope.

Section 6(b) of the Alaska Statehood Act³⁶⁶ granted the state 103,000,000 acres of land, subject to selection. Fortunately, Section 4 of that Act protected native lands. Although the courts have ruled that the native title was extinguished by the treaty with Russia³⁶⁷ several earlier Acts of Congress have recognized that Alaska natives were not to be disturbed in possession.³⁶⁸ [1 ELR 50031] To protect the native lands, the Secretary of the Interior put a freeze on state selections on January 17, 1969 to last through 1970.³⁶⁹

The discovery of oil at Prudhoe Bay on the north slope of Alaska was announced in the summer of 1968. Estimates of the magnitude of the discovery vary widely, from 5,000,000,000 to as much as 100,000,000,000 barrels. Most of the land involved in the exploration is state selected lands. On September 11, 1969, the state held a lease auction for tracts within the area, from which revenue of between $800,000,000 and $900,000,000 was realized.

In June, 1969, the Department of Interior received an application from a pipeline consortium for an 800-mile right-of-way from Prudhoe Bay to Valdez on the Gulf of Alaska. The following month Interior also received a request from the State of Alaska that the land "freeze" be lifted to allow construction of 53 miles of highway along the proposed pipeline route.

The Freeze was lifted for the highway with approval of both the Senate and House Interior Committees and the Federal Power Commission. No restrictive stipulations were attached.But, as of mid-December, 1969, the pipeline permit itself had not been granted. A Federal Task Force held a hearing on the application in Alaska.³⁷⁰ The Senate and House Interior committees also held extended hearings in Washington, D.C. A proposed set of Interior Department protective stipulations were agreed to by the oil companies. By late March of 1970, however, the Secretary of the Interior was on the verge of granting permits to TAPS which would allow them to proceed with the building of the pipeline and haul road. The Wilderness Society and several otherr conservation groups filed suit in Washington, D.C., District Court on March 26, seeking to enjoin the Secretary from granting the permits. The plaintiffs argued that the construction of the pipeline would cause "massive, immediate and irreversible" damage to the fragile ecosystems of central Alaska. They argued further that the defendant had not given sufficient consideration to the ecological effects of the pipeline, as required under § 102 of the National Environmental Policy Act, and that the right-of-way width of the pipeline would exceed the limits set down in the Mineral Leasing Act. On April 23 the Court granted the plaintiff's injunction, based on violations of the National Environmental Policy Act and the Mineral Leasing Act.³⁷¹

8. Outer Continental Shelf

The continental shelf has had a legal history quite different from that of the fast lands. Unfortunately, the best synopsis of that history is probably unavailable to most members of the bar.³⁷²

The original states were held to own the land under their navigable waters as an incident of sovereignty taken from the Crown upon independence.³⁷³ New states likewise obtained ownership of such lands upon admission to the Union under the equal footing doctrine.³⁷⁴ It was long assumed that these rules applied to all lands beneath the territorial sea. The Department of the Interior, for instance, refused to issue mineral leases off the California coast, leaving the field to California.³⁷⁵ In 1945, however, the federal government reversed its position, bringing legal action to quiet its title to lands of California within the three-mile limit. On September 28, 1945 the U.S. also claimed ownership of the bed of the continental shelf beyond the three-mile limit.³⁷⁶ The natural resources of the subsoil and seabed of the continent itself were placed under the administrative jurisdiction of the Secretary of the Interior.³⁷⁷ In a series of decisions, the Supreme Court confirmed the title of the United States to most of the bed of the continental shelf beyond the line of mean low tide.³⁷⁸ On January 16, 1953, President Truman set aside the entire continental shelf as a naval petroleum reserve, transferring jurisdiction to the Secretary of the Navy.³⁷⁹

On May 22, 1953, Congress upset federal ownership, giving away a large part of the continental shelf.³⁸⁰ Essentially the Act gave the states title to the bed of the territorial sea within their boundaries up to three miles out into the Atlantic and Pacific oceans and three leagues into the Gulf of Mexico from ordinary low [1 ELR 50032] water. The rights of the United States seaward were preserved. The constitutionality of the Submerged Lands Act was upheld in a brief per curiam decision in 1954.³⁸¹ The Gulf States boundaries were later held to be three leagues for Texas and Florida and three miles for Louisiana, Mississippi and Alabama.³⁸²

By Act of August 7, 1953,³⁸³ Congress arranged for the administration of the shelf seaward of the area conveyed to the states. Under this Act the naval petroleum reserve was canceled and provision was made for mineral leasing exclusively under the Act by the Secretary of the Interior. State laws in general, except tax laws, were adopted as federal law for the shelf opposite each state, but are to be administered by federal officials and courts and are not to be a basis for any state claim of interest or jurisdiction in the outer continental shelf.

Under the Act the Secretary of the Interior is given authority to "prescribe such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of natural resources of the Outer Continental Shelf. …"³⁸⁴ To meet what the Act describes as "the urgent need for further exploration and development of the oil and gas deposits"³⁸⁵ of the outer continental shelf, the Secretary is authorized to grant oil and gas leases "to the highest responsible qualified bidder by competitive bidding. …"³⁸⁶ The lease tracts may not exceed 5,760 acres and the lease period can be no longer than 5 years or "as long thereafter as oil or gas may be produced from the area in paying quantities, or drilling or well reworking operations as approved by the Secretary are conducted thereon. …"³⁸⁷ The Secretary has specific authority to cancel leases, subject to judicial review, if they are nonproducing.³⁸⁸ Producing leases may be cancelled only after an "appropriate proceeding" in the U.S. District Court.³⁸⁹

The Secretary's leasing authority has been divided between the Bureau of Land Management, which is charged with administering the leasing,³⁹⁰ and the U.S. Geological Survey to supervise operations after leasing.³⁹¹

Following the Santa Barbara oil spill,³⁹² and criticism of federal leasing policies, the procedures of the USGS and BLM were altered in several ways in order to provide more comprehensive environmental protection.

a. Offshore lessees were made absolutely liable for cleanup of pollution "proximately resulting" from drilling or production.³⁹³

b. The Director of BLM must evaluate the environmental effects of mineral leasing "at such time as an area initially considered for mineral leasing, or as the need arises…" based on USGS and otherr federal agency reports,³⁹⁴ and may build environmental stipulations in the lease.³⁹⁵

c. The Director of BLM may hold public hearings before final selection of leasing tracts for general sale.³⁹⁶

d. USGS is authorized to receive certain geological and geophysical information from a lessee on request,³⁹⁷ but whatever geological and geophysical interpretations that USGS is authorized to receive may only be made public with the consent of the lessee or by the government if release is "required and necessary for the proper development of the field or area."³⁹⁸

The extent of U.S. jurisdiction over the continental shelf governed by the Geneva Convention on the Continental Shelf, which defines the continental shelf as "the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or beyond the limit, to where the depth of the superadjacent waters admits of the exploitation of the natural resources of the said areas…"³⁹⁹

Since exploratory drilling and technological [1 ELR 50033] capacity now extends beyond the 200 meter mark, the uncertain definition of the continental shelf is now a matter of international concern.⁴⁰⁰ A draft United Nations Convention on The International Seabed Area has been submitted by President Nixon⁴⁰¹ calling for all nations to give up their claims to shelf lands beyond the 200 meter mark and for creation of an International Seabed Authority. The Authority would regulate use of the seabed resources and, under the Trusteeship of the Coastal state, all resources between the seabed and the 200 meter mark.

Offshore oil and gas production promises to become an increasingly important resource issue. Undiscovered recoverable reserves on the U.S. outer continental shelf have been estimated at approximately 34 to 220 billion barrels of liquids and from 170 to 1,100 trillion cubic feet of natural gas.⁴⁰² Federal legal issues will involve conflicts with state, industry and otherr countries as exploitative techniques improve.

1. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965).

2. See Duggan v. Rank, 372 U.S. 609 (1963); City of Fresno v. California, 372 U.S. 627 (1963); See Dissent of Frankfurther, Larson v. Domestic & Foreign Corp., 337 U.S. 682, 705, 711-714 (1949). The key words are that a suit cannot "expend itself on the public treasury or domain, or interfere with the public administration." Land v. Dollar, 330 U.S. 731, 738 (1947). On the relation of this doctrine to mandamus, see Jaffe, Judicial Control of Administrative Action, pp. 224-225, 227-229 (1965).

3. See Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1948). Frankfurter's vigorous dissent should be read. Also, see Jaffe, Judicial Control of Administrative Action, pp. 222-231 (1965). A return to an earlier position allowing certain types of wrongs to be enjoined would be refreshing. See Douglas's dissent in Malone v. Bowdoin, 369 U.S. 643, 648 (1962), and Byse, Proposed Reforms in Federal "Nonstatutory" Judicial Review: Sovereign Immunity, Indispensible Parties, Mandamus, 75 Harv. L. Rev. 1478 (1962). A recent and thorough analysis of sovereign immunity is contained in Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public Lands Cases, 68 Mich. L.R. 867 (April, 1970).

4. United States v. Sherwood, 312 U.S. 584, 586 (1941).

5. Dalehite v. United States, 346 U.S. 15, 30 (1953).

6. United States v. Shaw, 309 U.S. 495, 500-01 (1940).

7. United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1836). Also see Arizona v. California, 298 U.S. 558 (1936).

8. Land v. Dollar, supra, at n. 2; Larson v. Domestic & Foreign Corp.; supra, at n. 3; Dugan v. Rank supra, at n. 2; Malone v. Bowdoin, supra, at n. 3.

9. Supra, at 735.

10. Larson v. Domestic & Foreign Corp., supra, at n. 3; 701-702. A case not to be overlooked and which should still be good law is Ickes v. Fox, 300 U.S. 82 (1937). on its facts, it may show that the Larson distinction between unauthorized conduct and a wrong may really depend on how a complaint is phrased.

11. Malone v. Bowdoin, 369 U.S. 643, 647 (1962).

12. J. Gelin, Recent Developments in Sovereign Immunity, 8 Land and Natural Resources Division Journal 215 (August, 1970). Published by the Department of Justice.

13. 417 F.2d 1310 (9th Cir. 1969).

14. 391 F.2d 885 (5th Cir. 1968).

15. See also Colson v. Hickel, __ F.2d __ (5th Cir. Civ. Action No. 26212, June 16, 1970); Scholder v. United States, __ F.2d __ (9th Cir. Civ. Action No. 14,306, June 22, 1970).

16. Gelin, op. cit., p. 220.

17. Jaffe, Judicial Control of Administrative Action, 459-500 (1965); Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement, 78 Yale L.J. 816 (1969); Rogers, The Need for Meaningful Control in the Management of Federally Owned Timberlands, 4 Land & Water L. Rev. 121 (1969); Allen, The Congressional Intent to Protect Test: A Judicial Lowering of the Standing Barrier, 41 Colo. L. Rev. 96 (1969); Jaffe, The Citizen as Litigant in Public Actions: The Non-Hofeldian or Ideological Plaintiff, 116 U. of Pa. L. Rev. 1033 (1968); Reich, The Law of the Planned Society, 75 Yale L.J. 1227 (1966); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev. 255 (1961); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961); Jaffe, Standing to Sue in Conservation Suits, in Law and the Environment (New York: 1970); Keck, Standing to Sue and Public Timber Resources, 3 Natural Resources Lawyer 444 (July, 1970; Standing to Sue, 8 Lands and Natural Resources Division Journal 79 (April, 1970); Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450 (1970).

18. Office of Communication of United Churches of Christ v. Federal Communications Commission, 359 F.2d 994, 1002 (D.C. Cir. 1966).

19. 397 U.S. 150 (1970).

20. 397 U.S. 159 (1970).

22. Id., at 153.

23. 392 U.S. 83 (1968).

24. 369 U.S. 186 (1964).

25. Data Processing Service, supra, at n. 19, 162.

26. Id., at 164 (Emphasis added).

27. Id., at 153 (Emphasis added).

28. Barlow, supra, at n. 20, 161.

29. Data Processing Service, supra, at n. 19, 165.

30. Id.

31. 424 F.2d 859 (1970).

32. __ F.2d __ (D.C. Cir. June 9, 1970)

33. 354 F.2d 608 (2d Cir., 1965), 1 ER 1084.

34. 16 U.S.C. § 8251. (b) states: "Any party to a preceeding under this chapter aggrieved by an order issued by the commission may obtain a review . …"

35. The court also noted that certain applicants in intervention had sufficient economic interest to intervene. 354 F.2d at 616.

36. 425 F.2d 97 (2d Cir. 1970), 1 ER 1237.

37. Id., at 101. It should be noted that opinion is divided over whether the Administrative Procedure Act, 5 U.S.C. § 701 et seq., is a jurisdictional statute as held by the court in Citizens Comm. The government still argues that it is not and that jurisdiction must be found elsewhere in the "relevant" statute, relying upon § 702: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Of course cases such as Citizens Comm. and numerous otherrs cited below, which also emphasize the specific language of § 701 (a) of the Act, have seriously eroded the government's position. Section 701 (a) reads:

(a) This chapter applies, according to the provisions thereof, except to the extent that…

(1) Statutes preclude judicial review; or

(2) Agency action is committed to agency discretion by law.

The practical confines of this Primer prohibit treatment of this issue, except so far as it relates to the issues of standing, but the interested reader may refer to Professor Davis at Chapter 28, Administraive Law Treatise, particularly § 28.08 as well as the following cases:

Statute is jurisdictional.

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (Review permissible under APA and Declaratory Judgment Act of regulations issued under the Federal Food, Drug and Cosmetic Act, § 701(f)(6); 21 USC § 371(f) (6), which provides that: "remedies provided for in this subsection should be in addition to and not in substitution for any otherr remedies provided by law"): Converse v. Udall, 399 F.2d 616 (C.A. 9, 1968) (Appeal from decision of Secy. of the Interior under the Surface Resources Act of 1955, 69 Stat. 367, 30 USC § 601 et seq.); Norwalk Corp. v. Norwalk Redevelopment Agency, 395 F.2d 920, 932-937 (C.A. 2, 1968) (Review under § 105(c) of the Housing Act of 1949. While right to review found under relevant statute, it is clear that that statute was interpreted in light of APA, 395 F.2d at 932-3. This case also involved standing.); Brennan v. Udall, 379 F.2d 803 (C.A. 10, 1967), cert. den. 389 U.S. 975 (Decision of Secy of the Interior reserving oil shale under Act of July 17, 1914, 30 USC §§ 121-123, reviewable under APA); Coleman v. United States, 363 F.2d 190 (C.A. 9, 1966), aff'd on reh., 379 F.2d 555 (1967), rev's on otherr grounds. 396 U.S. 599 (1968) (Review of Secy. of the Interior's decision under the Surface Resources Act of 1955, 30 USC 601 et seq., reviewable under APA); Cappadora v. Celebrezze, 356 F.2d 1 (C.A. 2, 1966) (Review of decision of Secy of HEW refusing to reopen denial of Social Security benefits, reviewable under APA); Freeman v. Brown, 342 F.2d 205 (C.A. 5, 1965) (Action of Secy of Agriculture in fixing corp quotas reviewable under APA where action alleged to be outside the statutory boundaries of Agricultural Adjustment Act of 1938; as amended); Estrada v. Ahrens, 296 F.2d 690 (C.A. 5, 1961) (Nonresident alien could obtain review of Immigration and Naturalization officer's decision. "If Estrada's plight resulted from a government official's misconstruction of the statute, the official exceeded his statutory authority. A court of law is the proper place to test 'unauthorized administrative power'", 296 F.2d at 695); Adams v. Witmer, 271 F.2d 29 (C.A. 9, 1958) (Judicial review of BLM order denying mining patent founded on APA); Powelton Civic Home Owners Ass'n. v. HUD, 284 F. Supp. 809 (E.D. Pa., 1968) (Jurisdiction found to review decision of Secy or HUD denying plaintiffs hearing under National Housing Act; Standing also involved); Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650 (S.D.N.Y., 1967) (Review of decision of Bureau of Public Roads; Standing also involved); cf. Harmon v. Brucker, 355 U.S. 579 (1958); Foster v. Seaton, 271 F.2d 836 (C.A.D.C., 1959) (which, though APA jurisdiction not discussed, must have same basis as Coleman and Converse above). Also, see Shaughressy v. Pedreiro, 349 U.S. 48 (1955).

Statute is not Jurisdictional.

Motah v. United States, 402 F.2d 1 (C.A. 10, 1968) (Review of decision of Secy of Interior on contect of Indian election and complaints of denial of right to vote denied); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (C.A. 8, 1967) (Decision of Secy to approve election and amendments of tribal constitution and bylaws held unreviewable; 25 USC § 476, under which Secretary acted held to be discretionary); Rural Electrification Administration v. Central Louisiana Electric Co., 354 F.2d 859 (C.A. 5, 1966) (No jurisdiction to review grant or denial of loans under § 4 of the Rural Electrification Act of 1936, 7 USC § 904); Chournos v. United States, 335 F.2d 918 (C.A. 10, 1964) (Secy of Interior's decision that mining claims were invalid held unreviewable under APA); Local 542, International Union of Operating Engineers v. NLRB, 328 F.2d 850 (C.F. 3, 1964), cert. den. 379 U.S. 826; Cyrus v. United States, 226 F.2d 416 (C.A. 5, 1955). Cf. Blackmar v. Guerre, 342 U.S. 512 (1951).

38. Citizen's Committee, supra, at 36, 104.

39. The Department of Transportation Act, 49 U.S.C. § 1653 (f) (declaring a national policy to preserve the natural beauty of the countryside and requiring consideration of environmental values in considering routes); the Hudson River Basin Compact Act, 89 Stat. 847 (1966) (Describing the immense recreational and esthetic value of the Hudson River Basin); Army Corps of Engineers Regulation, 33 C.F.R. 209.120(d).

40. Citizen's Committee, supra, at 36, 105. One observer concludes from the opinions Scenic Hudson and Citizens Comm. that the practitioner may use a two-part test in meeting the requirements for standing under 5 U.S.C. § 702:

First the plaintiff must show he is "aggrieved" by the action, which can be shown by a long and active interest in environmental activities. Second a "relevant statute" enunciating Congressional rcognition of the environmentalist cause must be found. This is not a difficult problem; many conservation statutes contain broad language emphasizing various conservationist goals. Brecher and Nestle, Environmental Law Handbook, § 410 (Claifornia Continuing Education of the Bar, 1970). Whatever the merits of this test under Scenic Hudson and Citizens Comm. the impact of the Supreme Court's later decisions in Data Processing Services and Barlow will now have to be considered.

Additional recent decisions which have followed the reasoning of Scenic Hudson and Citizens Comm. to grant standing tocitizens who wish to be heard in the making of decisions with an environmental or similar public interest impact includes:

Environmental

Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179, 182 (6th Cir., 1967) (Federal Aid Highway Act of 1956); Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650, 660 (S.D.N.Y., 1967) (Federal Highway Act, 23 U.S.C. §§ 101(b), 109(a), 134, 138); Parker v. United States, 309 F. Supp. 593 (D. Colo. February, 1970) (Plaintiffs brought suit to enjoin timber cutting in a de facto wilderness area within a National Forest under the Sustained Yield-Multiple Use Act of 1960, 16 U.S.C. § 528 et seq.); Wilderness Society v. Hickel, __ F. Supp. __ (D.D.C. April 23, 1970) (standing to enjoin the Trans-Alaska pipeline, based on the National Environmental Policy Act, 42 U.S.C. § 432, and the Mineral Leasing Act, 30 U.S.C. § 185 et seq.); West Virginia Highlands Conservancy v. Island Creek Coal Company, Civil Action No. 70182-E (N.D. W. Va., opinion filed June 2, 1970), on appeal to the 4th Circuit (action to restrain prospecting and road-building; review under the Multiple Use-Sustained Yield Act of 1960 16 U.S.C. § 528, and the Wilderness Act of 1964, 16 U.S.C. § 1131).

Non-Environmental

Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir., 1968) (National Housing Act, 42 U.S.C. § 1455(c)); Powelton Civic Home Owners Ass'n v. Department of Housing and Urban Development, 284 F. Supp. 809, 821-828 (E.D. Penn., 1968) (National Housing Act, 42 U.S.C. § 1455(c)); Scanwell Laboratories v. Schaffer, 424 F.2d 859 (D.C. Cir. 1970).

Additional non environmental cases where the court relies solely upon the relevant statute for standing, as in Scenic Hudson, include:

REA v. Northern States Power Co., 373 F.2d 868 (8th Cir. 1967) (Rural Electrification Act); Johnson v. Redevelopment Agency of the City of Oakland, 317 F.2d 872 (9th Cir. 1963); Braude v. Wirtz, 350 F.2d 702 (9th Cir. 1965); Turner v. Kings River Conservation District, 360 F.2d 184 (9th Cir. 1966)

41. Data Processing Services, supra, at n. 19, 165.

42. __ F.2d __ (9th Cir. 1970, Sept. 16, No. 24,966).

43. Associated Industries v. Ickes, 134 F.2d 694 (1943).

44. Due to the conflict on this issue between decisions of the Second and Fifth Circuit on the one hand, and the Ninth Circuit on the otherr, the prospects for a grant of the writ are promising.

45. Jaffee, Judicial Control of Administrative Action, 470-471 (1965)

46. 262 U.S. 447 (1923).

47. E.g., Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).

48. 392 U.S. 83 (1968).

49. Id., at 101.

50. Id.

51. 1962 U.S. Code, Cong. and Ad. News, 2785. One court has gone so far as to say jurisdiction under 1361 can be used to effectuate the Administrative Procedure Act. Atewooftakewa v. Udall, 277 F. Supp. 464 (W.D. Okla., 1967).

52. See Kendall v. United States, 12 Pet. 524 (37 U.S.) (1838).

53. 1962 U.S. Code, Cong. & Ad. News. 2784-2790, Sen. Rep. No. 1992, 87th Cong., 2d sess., 1962.

54. Ibid., p. 2785.

55. Id., p. 2787. This language returns to the early concept that mandamus is strictly for ministerial acts. In the recent case of Harms v. Federal Housing Administration, 256 F. Supp. 757 (D.C. Md. 1966), the court was obviously edging close to mandamus review of a discretionary act. The court held that a decision of the Secretary of the Interior disallowing a will was made for a reason that was unauthorized under delegated authority and therefore arbitrary and capricious. See Professor Jaffe's comments in Judicial Control of Administrative Action, pp. 180-186.

56. 196 F.2d 863 (C.A.D.C. 1952).

57. 262 U.S. 447 (1923).

58. 68 F.2d 773 (C.A.D.C. 1934).

59. 68 F.2d at 774. In this case, plaintiff actually had strong personal interest. As a warehouseman, he sought to force the cancellation of a lease of warehouses owned by the United States and leased to a competitor.

60. 32 F.2d 415 (C.A.D.C. 1929).

61. 33 App. D.C. 472 (1909).

62. 91 U.S. 343 (1876).

63. Act of March 3, 1873, 17 Stat. 509 § 4.

64. Union Pacific R.R., supra, at 354.

65. Id., at 356.

66. L. Jaffe, Judicial Control of Administrative Action. (1965) 468-469.

67. 355 U.S. 579 (1958)

68. Id., at 581-82.

69. L. Jaffe, supra, at 164-65.

70. See Blackmar v. Guerre, 342 U.S. 512 (1957), a wonderful example of pre-1391(e) problems. See also 1962 U.S. Code, Cong. & Ad. News. 2784-2790, Sen. Rep. No. 1992, 87th Cong., 2d sess., 1962.

71. 284 F. Supp. 809 (1968).

72. 284 F. Supp. at 833-834.

73. 290 F. Supp. 612 (1968).

74. 269 F. Supp. 965 (1967).

75. 286 F. Supp. 614 (1968).

76. Act of June 5, 1967, 81 Stat. 54; Act of July 4, 1966, 80 Stat. 250. 5 U.S.C. § 552

77. See Sive, Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases, 68 Mich. L.R. 1175 (1970).

78. See United States v. Reynolds, 345 U.S. 1 (1953); United States v. Morgan, 313 U.S. 409 (1940); Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl., 1958); Carl Zeiss Stiftung v. V.E.B. Zeiss, Jena, 40 F.R.D. 318 (D.D.C., 1966).

79. 1966 U.S. Code, Cong. & Ad. News, 2427-2428; H. Rept. No. 89th Cong., 2d sess., 1966.

80. United States v. Morgan supra, at n. 78. Carl Zeiss supra, at n. 78.

81. Kaiser Aluminum & Chem. Corp. v. United States, supra, at n. 78, 945-46.

82. United States v. Reynolds, 345 U.S. 1 (1953).

83. Id., at 7. (The Reynolds case actually involved the privilege against revealing military secrets. The court's gneeralizations, however, fit the less important privilege against furnishing intra-office memos. See Kaiser Aluminum & Chem. Corp. v. United States, supra and Carl Zeiss, supra.)

84. United States v. Reynolds, supra, at n. 78, 8; Kaiser Aluminum & Chem. Corp. v. United States, supra, at n. 78, 947.

85. Carl Zeiss clearly involved diplomatic secrets, so is on a part with Reynolds. Kaiser is less clear.

86. Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 8-13.

87. Krier, Environmental Litigation and the Burden of Proof, in Baldwin and Page, eds., Law and the Environment (October, 1970).

88. 354 F.2d 608 (C.A. 2, 1965), cert. den., 384 U.S. 941 (1965).

89. 387 U.S. 428 (1967).

90. Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 at 1001 (1969).

91. Id., at 1011.

92. If any party had a burden before the Commission, it was the license-seeking station rather than the public interest intervenor. "… The conduct of the hearing was not primarily the licensee's responsibility, although as the applicant it had the burden of proof." Id. at 1011.

93. 68 Mich L. Rev. 1175 (1970).

94. Id., at 1188.

95. Id.

96. Id., at 1189. See also United States v. Spaulding, 293 U.S. 498 (1935), United States v. Robert, 192 F.2d 893, 897-98 (5th Cir. 1951).

97. Id. See also Salem v. United States Lines Co., 370 U.S. 31 (1962) Webb v. Fuller Brush Co., 378 F.2d 500 (3d Cir. 1967).

98. Id., at 1191.

99. Udall v. Talman, 380 U.S. 1 (1965).

100. 3 Clark(ed), Water and Water Rights, 1967.

101. 33 U.S.C. § 466, et seq; amended April 3, 1970 by the Water Quality Improvement Act of 1970, Public Law 91-224.

102. Barry, The Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act, 68 Mich. L.R. 1103 (May, 1970).

103. 33 U.S.C. § 466g.

104. 33 U.S.C. §§ 466g(a) and (d)-(k).

105. 33 U.S.C. § 466g. (c).

106. 33 U.S.C. § 466g (a). Pollution is not defined, but apparently is matter discharged into interstate or navigable waters or that reaches such waters after discharge into a tributary thereof. See Barry op. cit., at 1104-5 and passim.

107. 33 U.S.C. § 466j (e)

108. Guidelines for Establishing Water Quality Standards for Interstate Waters. U.S. Department of the Interior, Federal Water Pollution Control Administration (May, 1966), pp. 10, 11.

109. See discussion infra.

110. 33 U.S.C. §§ 466g(d)-(k).

111. 33 U.S.C. §§ 466g(d) and (e).

112. 33 U.S.C. § 466g (d) (1). By interstate pollution is meant "pollution of waters which is endangering the health or welfare of persons in a State otherr than that in which the discharge or discharges (causing or contributing to such pollution) originates."

113. 33 U.S.C. § 466g(d)(1).

115. 33 U.S.C. § 466g(d)(2).

116. 33 U.S.C. § 466g(d)(1).

117. 33 U.S.C. § 466g(d)(3).

118. 33 U.S.C. § 466g(k)(1). Trade secrets and secret processes need not be divulged in this report.

119. 33 U.S.C. § 466g(e).

120. 33 U.S.C. § 466g(f)(1).

121. 33 U.S.C. § 466g (f)(1). The Board will have five or more members picked by the Secretary, one by the Secretary of Commerce, and one from each state where the pollution originates or which is affected thereby. The majority must not be employees of the Department of the Interior.

122. 33 U.S.C. § 466g(f)(1).

123. 33 U.S.C. § 466g (f)(2). The report ismade under oath and is confidential.

124. 33 U.S.C. § 466g(g).

125. 33 U.S.C. § 466g(h).

126. See Environment Reporter, under Federal Laws, 41:5201-41:5210.

127. United States v. City of St. Joseph, (No. 1077, W.D. Mo., St. Joseph Div.)

128. Id., Order of October 31, 1961.

129. 33 U.S.C. §§ 466g(c)(1)-(2)

130. 33 U.S.C. § 466g(c)(3).

131. Id.

132. 333 U.S.C. § 466g(c)(4).

133. The Secretary's justification is language of 33 U.S.C. § 466g(c)(3).

134. See Degler and Bloom, Federal Pollution Control Programs, BNA's Environmental Management Series, 1969.

135. 33 U.S.C. § 466g(c)(5).

136. Id.

137. Id.

138. 33 U.S.C. § 466g(g).

139. 33 U.S.C. § 466g(c)(5).

140. See Environment Reporter, under Federal Laws, 41:5210.

141. 33 U.S.C. § 407.

142. United States v. Interlake Steel Corp., (No. 68, CR 77, N.D., Ill., March 27, 1969. Memorandum and Order on Defendant's Motion to Dismiss).

143. 33 U.S.C. § 411.

144. 33 U.S.C. § 411.

145. Qui Tam Actions and the 1899 Refuse Act: Citizens' Lawsuits Against Polluters of the Nation's Waterways, a Committee Print of the Conservation and Natural Resources Subcommittee of the Committee on Government Operations, 91st Cong., 2d Sess. (September 1970), p. 14.

146. United States v. Republic Steel Corp., 362 U.S. 482 (1960).

147. 33 U.S.C. § 413 The Act contemplates that most requests for prosecution will originate with the Corps of Engineers.

148. Qui Tam Committee Print, op. cit., p. 10. "Guidelines for Litigation Under the Refuse Act," a directive to all U.S. Attorneys (July 10, 1970), Department of Justice.

149. Four qui tam suits have been brought by Congressman Reuss in Wisconsin; otherrs have been brought in Washington, Alabama, Texas, Louisiana and Ohio, with more such suits contemplated. Only the Seattle, Washington suit has proceeded to opinion on the availability of qui tam under the refuse act. The Court there dismissed the action on defendant's motion. Durning v. I.T.T. Rayonier Incorporated, (Civ. Ac. No. 9070, U.S.D.C., W.D. Wash. October 6, 1970).

150. United States v. Standard Oil Co., 384 U.S. 224 (1966).

151. United States v. Interlake Steel Corp., supra, at n. 142.

152. 33 U.S.C. § 411.

153. New Regulations under section II were issued by the Secretary of Interior, Sept. 1970, Code of Fed. Regulations, Title 18, Chapter V, Part 610.

154. 33 U.S.C. 431 et seq.

155. PL 91-224, § 108.

156. PL 91-224, § 11 (b)(2).

157. PL 91-224,§ 11 (b)(5).

158. PL 91-224, § 11 (b)(4).

159. PL 91-224, § 11 (c)(2).

160. PL 91-224, § 11 (d).

161. PL 91-224 § 11 (e).

162. PL 91-224, § 11 (e).

163. PL 91-224, § 11 (f).

164. PL 91-224, § 11 (g).

165. PL 91-224, § 11 (o).

166. PL 91-224, § 13.

167. PL 91-224, § 13(b)(1).

168. PL 91-224, § 13(b)(1).

169. PL 91-224, § 13(c) and (h)(4).

170. PL 91-224, § 13(g)(1), (h)(1), (h)(2).

171. PL 91-224, § 13(j).

172. PL 91-224, § 13(j).

173. PL 91-224, § 13(f).

174. 31 Fed. Reg. 9261, July 2, 1966, Updated version Ex. Or. 11507, 70 Fed. Reg. 1566, Feb. 4, 1970.

175. PL 91-224, § 21.

176. Id., § 21(b)(1).

177. Id., § 21(b)(1).

178. Id., § 21(b)(1).

179. Id., § 21(b)(2).

180. Id., § 21(b)(2).

181. Id., § 21(b)(2).

182. Id., § 21(b)(4).

183. Id., § 21(b)(4).

184. Id., § 21(b)(9)(A).

185. Id., § 21(b)(7).

186. E.g., Potomac River Basin Compact, 54 Stat. 748; New England Interstate Water Pollution Control Compact, 61 Stat. 682; Tri-State Compact (N.Y., N.J., and Conn.), 49 Stat. 752; Tennessee River Basin Water Pollution Control Compact. 72 Stat. 823; Bi-State Metropolitan Compact (Ill., and Mo.), 73 Stat. 582; Red River of the North Compact, 52 Stat. 150; The Arkansas River Compact, 80 Stat. 1405; and Delaware River Basin Compact, 75 Stat. 688.

187. New Hampshire v. A.E.C., 406 F.2d 170 (C.A. 1, 1969); 1 ER 1053; see also United States v. Florida Power and Light, 311 F. Supp. 1391 (S.D. Pla. 1970); In re: Calvert Cliffs Coordinating Committee, Petition before the A.E.C., June 29, 1970).

188. 81 Stat. 485, 42 U.S.C. §§ 1857 et seq.

189. Symposium, 33 Law & Contemp. Prob. 195 et seq. (1968); Symposium, 10 Ariz. L. Rev. (1968); Birmingham, The Federal Government and Air and Water Pollution, 23 Bus. Law. 467, 482 (1968); Note, The Air Quality Act of 1967, 54 Iowa L. Rev. 115 (1968); Note, 55 Calif. L. Rev. 702 (1967); Tyler, Methods for State Level Enforcement of Air and Water Pollution Laws, 31 Texas B.J., 905 (1968); and Cunningham, A Review of Air Pollution Control Legislation and Some Suggestions, ABA Law Notes (1969).

190. 42 U.S.C. § 1857c-2(a)(1).

191. 42 U.S.C. §§ 1857c-2(a)(2). By July 1, 1970, air quality regions had been designated in 40 major metropolitan areas. By the end of the summer 1970, HEW expects to designate 90 regions with at least one region in each state. Environmental Quality: The First Annual Report of the Council on Environmental Quality, p. 75 (Government Printing Office: August, 1970).

192. 42 U.S.C. § 1857c-2(b).

193. 42 U.S.C. § 1857c-2(c).

194. As opposed to emission standards.

195. 42 U.S.C. § 1857d(c).

196. 42 U.S.C. § 1857d(d).

197. 42 U.S.C. § 1857d(e).

198. 42 U.S.C. § 1857d(f)(1).

199. 42 U.S.C. § 1857d(f)(3).

200. 42 U.S.C. § 1857d(g). The request of the governor is required in order to reach intrastate pollution.

201. United States v. Bishop Processing Co., 287 F. Supp. 624 (D. Md. 1968). aff'd __ F.2d __ (4th Cir. March 3, 1970), 1 E.R. 1013 cert. denied __ US __ (May 18, 1970), Environmental Law Digest 1:53.0. Also see Bishop Processing Co. v. Gardner, 275 F. Supp. 780 (D. Md. 1967).

202. See Environment Reporter, under Federal Laws, 41:1201-5.

203. Executive Order No. 11282, 31 F.R. 7663, May 26, 1966.

204. 42 U.S.C. § 1857d(k).

205. 42 U.S.C. § 1857f-1 et seq.

206. 42 U.S.C. § 1857f-6a. See generally Currie, Motor Vehicle Air Pollution: State Authority and Federal Pre-emption, 68 Mich. L. R. 1083.

207. Environmental Quality, First Annual Report of the Council on Environmental Quality, August 1970, page 76.

208. S. 4358, 92 Cong., 2d Sess. (1970).

209. S. 3466, 92d Cong., 2d Sess. (1970).

210. 7 U.S.C. § 135 et seq.

211. See 7 U.S.C. §§ 135(z)(2)(c), (d) and (g). See also 7 C.F.R. § 362.10(k).

212. See 7 U.S.C. §§ 135(b), (c); 7 C.F.R. § 362.10(i), (i), (j); 7 C.F.R. § 362.106(g).

213. 21 U.S.C. § 321 et seq.

214. 21 U.S.C. § 346a(b). See also 21 C.F.R. § 120.5.

215. Environmental Defense Fund v. Finch, __ F.2d __ (D.C. Cir., May 28, 1970); Environmental Defense Fund v. Hardin, __ F.2d __ (D.C. Cir. May 28, 1970); Nor-Am Agricultural Products, Inc. v. Hardin, __ F.2d __ (7th Cir. July 15, 1970); Wellford v. Hardin, Civil No. 24434 (D.C. Cir., filed April 29, 1970).

216. 44 Stat. 568, 574.

217. See 14 C.F.R. § 91.79 (1966) for regulations on minimum safe levels. Also see § 101(24) of Federal Aviation Act of 1958, 49 U.S.C. § 1301(24).

218. 328 U.S. 256 (1946).

219. Griggs v. Allegheny County, 369 U.S. 84 (1962).

220. Batten v. United States, 306 F.2d 580 (C.A. 10, 1962), cert., den. 371 U.S. 955 (1963) (Chief Judge Murrah dissented forcefully to the imposition of an overflight requirement); Nunally v. United States, 239 F.2d 521 (C.A. 4, 1956); Leavell v. United States, 234 F. Supp. 734 (E.D.S.C., 1964); United States v. 3276.21 Acres of Land, 222 F. Supp. 887 (S.D. Cal., 1963); Freeman v. United States, 171 F. Supp. 283 (Ct. Cl., 1962); Matson v. United States, (Ct. Cl., 1959).

221. United States v. Certain Parcels of Land in Kent County, Michigan, 252 F. Supp. 319 (W.D. Mich., 1966); Thornburg v. Port of Portland, 233 Ore. 178, 376 P.2d 100 (1962); Board of Education of Town of Morristown v. Palmer, 88 N.J. Super. 378, 212 A.2d 564 (Supp. Ct., App. Div., 1965); Hawthorn v. Oklahoma City, 376 P.2d 100 (Okla. 1969).

222. See American Airlines, Inc. v. Town of Hempstead, 398 F.2d 369 (C.A. 2, 1968), cert. den., __ U.S. __ (1969); All American Airways v. Village of Cedarhurst, 106 F. Supp. 521 (E.D.N.Y., 1952) (Aff'd sub nom Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir., 1956).

223. Public Law 90-411, 82 Stat 395.

224. 49 U.S.C. § 421 et seq.

225. 34 Fed. Ref. 453-465 (January 11, 1969).

226. In Re: The Environmental Defense Fund. Petition before the FAA for noise standards for the SST, No. 1035-7.

227. Sourcie v. Volpe, Civil No. 1590-70D.D.C., filed May 25, 1970.

228. Brief for Petitioners, The Palisades Citizens Association, Inc. v. Civil Aeronautics Board (No. 21, 422, C.A.D.C.).

229. The National Environmental Policy Act, 42 U.S.C. § 4321, may afford some general protection through subsequent judicial interpretation.

230. See e.g. St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919); General Outdoor Adv. Co. v. Dept. of Public Works, 193 N.E. 799, 815-817 (Mass., 1935); Perlmutter v. Greene, 182 N.E. 5 (N.Y., 1932); Farley v. Graney, 119 S.E.2d 833 (W. Va., 1960); Preferred Tires, Inc. v. Hempstead, 19 N.Y.S.2d 374 (1940). Florida has produced an unusual number of decisions. See e.g. Eskind v. Vero Beach, 150 So. 2d 254 (1963); Daytona Beach v. Abdo, 112 So. 2d 398 (1959); Dade County v. Gould, 99 So. 2d 236 (1957); Merritt v. Peters, 65 So. 2d 861 (1953); Hav-a-Tampa Cigar Co. v. Johnson, 5 So. 2d 433 (1941); Standard Oil Co. v. Tallahassee 87 F. Supp. 145, N.D. Fla., 1949. Cf. New York Thruway Authority v. Ashley Motor Court, 176 N.E.2d 566 (N.Y. 1961). Murphy v. Westford, 40 F.2d 177 (Conn. 1944); People v. Stover, 191 N.E.2d 272 (N.Y. 1963). Contra People v. Dickenson, 343 P.2d 809 (Cal. 1959); Town of Vestal v. Bennet, 104 N.Y.S.2d 830 (1950); New Orleans v. Southern Auto Wreckers 192 So. 523 (la. 1939); State v. Brown, 108 S.E.2d 74 (N.C. 1959); Cf., Chicago Park Dist. v. Canfield, 19 N.E.2d 376 (Ill. 1939).

231. 348 U.S. 26 (1954). Also see, State v. Wieland, 69 N.W.2d 217 (Wis. 1955).

232. 348 U.S. at 33.

233. 23 U.S.C. § 131.

234. 23 U.S.C. § 136.

235. 439 P.2d 248 (Wash. 1968).

236. 414 S.W.2d 573 (Ky. 1967).

237. Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954). United States v. Twin City Power Co., 350 U.S. 222, 224-225 (1956).

238. Gibbons v. Ogden, 9 Wheat. 1 (1824); Leavy v. United States, 177 U.S. 621 (1900).

239. U.S. v. Appalachian Power Co., 311 U.S. 377, 407-409 (1940).

240. Ibid., at 424-427; United States v. Chandler-Dunbar Co., 229 U.S. 53, 64 (1913).

241. U.S. v. Appalachian Power Co., supra., at n. 239, 424; United States v. Twin City Power Co., supra at n. 237, 227. The power of Congress also extends to all coastal waters. United States v. California, 381 U.S. 139, 177 (1964).

242. United States v. Chandler-Dunbar Co., supra at n. 240, 69.

243. United States v. Rands, 389 U.S. 121, 123 (1967); United States v. Virginia Electric Co., 365 U.S. 624, 628 (1961).

244. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 595-597 (1941).

245. See, e.g., United States v. Grand River Dam Authority, 363 U.S. 229, 235 (1960).

246. 19 Stat. 377, as amended, 43 U.S.C. 321 et seq.

247. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 154-156 (1935).

248. 43 U.S.C. § 300 (waterholes); Sec. 13(c) of the Wild and Scenic Rivers Act of October 2, 1968; Public Law 90-542, 82 Stat. 906.

249. Arizona v. California, 373 U.S. 546 (1963); Federal Power Commission v. Oregon, 349 U.S. 435 (1955); Winters v. United States, 207 U.S. 564, 577 (1908); United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1898); 1 Kinney, Irrigation and Water Rights, 692-3 (1912).

250. 33 U.S.C. § 401, et seq.

251. 33 U.S.C. § 401.

252. 33 U.S.C. § 403.

253. 33 U.S.C. § 406.

254. 302 F. Supp. 1083, (S.D.N.Y. 1969).

255. Section 401 makes it unlawful to construct any bridge, dam, dike or causeway in any navigable waters until the builder has obtained (1) consent of Congress, (2) approval of his plans by the Chief of Engineers, and (3) approval by the Secretary of the Army. The General Bridge Act of 1946, 33 U.S.C. § 525, et seq. granted general consent to build bridges. The Department of Transportation Act, 49 U.S.C. § 1655 (g), transferred jurisdiction over bridges and causeways to the Secretary of Transportation. Thus, a bridge requires the Chief of Engineers' and the Secretary of Transportation's approval.A dike still requires approval of Congress, the Chief of Engineers and the Secretary of the Army. A causeway requires the approval of Congress, the Chief of Engineer and the Secretary of Transportation.

256. United States v. Dern, 289 U.S. 352 (1933).

257. New Corps procedures for the review of such permits have been developed by the Corps under the National Environmental Policy Act, 42 U.S.C. § 4321, Circular No. 1165-2-86, 30 April 1970.

258. See 16 U.S.C. § 797(e).

259. 354 F.2d 608 (2nd Cir., 1965).

260. 354 F.2d at 614.

261. 354 F.2d at 614.

262. 354 F.2d at 624.

263. 387 U.S., 428 (1967).

264. Act of June 17, 1902, 32 Stat. 388, as amended. See 43 U.S.C. § 371 et seq. (1964).

265. See, e.g., 33 U.S.C. § 701 et seq.

266. See, e.g., 33 U.S.C. § 540 et seq.

267. See e.g., 16 U.S.C. § 831 et seq.

268. 16 U.S.C. § 835 et seq.

269. Act of July 9, 1965, 79 Stat. 213.

270. 93 Ill. Ann. Stat. § 180 et seq. (1969 Supp.) (eff. July 1, 1968); Ind. Stat. Ann. § 46-1501 et seq. (eff. 1941); Ind. Stat. Ann. § 46-1517 et seq. (1968 Supp) (eff. 1967); Ky. Rev. Stat. § 350-010 et seq. (eff. 1962); Ann. Code Md., Art. 66C § 657 et seq. (eff. 1955); Ohio Rev. Code § 1513. 01 et seq. (eff. 1959); 52 Penn. Stat. Ann. 681 et seq. (eff. 1947) and 1396.1 et seq. (eff. 1945); 10A Tenn. Code Ann. § 58-1522 et seq. (eff. 1967); Code Va. § 45.1-162 et seq. (eff. 1966); West Va. Code § 20-6-1 et seq. (1969 Supp.) (eff. 1963, 1967).

271. West Va. Code § 20-6-11 (1969 Supp.)

272. See p. 50015 supra.

273. See generally 30 U.S.C. § 22 et seq.

274. 30 U.S.C. §§ 81-287.

275. 30 U.S.C. §§ 351-359.

276. 25 U.S.C. § 396 (allotted lands) and 25 U.S.C. 396a (unalloted lands). Other acts apply to specific lands.

277. 30 U.S.C. § 601 et seq.

278. 30 U.S.C. § 611 et seq.

279. 30 U.S.C. § 612(b).

280. 5 U.S.C. § 133y-16.

281. 7 U.S.C. § 1010.

282. 16 U.S.C. § 513-519.

283. 49 U.S.C. § 1653(f) (supp IV, 1969)

284. There are at least three lawsuits pending in which section 4f is in issue. Lukowski v. Volpe, (Civ. No. 20634 D.C. MD.); Citizens Committee for the Columbia River v. Resor, (Civ. No. 69-498, D.C. Ore.); Citizens to Preserve Overton Park, Inc. v. Volpe, (Civ. No. 3396-69, D.C. Tenn.).

285. 49 U.S.C. § 1651(b)(2) (Supp. IV, 1969).

286. 252 U.S. 416 (1920).

287. Migratory Bird Treaty Act of July 3, 1918, 40 Stat. 755.

288. 252 U.S. at 435.

289. Hunt v. United States, 278 U.S. 96; New Mexico State Game Commission v. Udall, 410 F.2d 1197 (10th Cir. May 15, 1969).

290. Toomer v. Witsell, 334 U.S. 385 (1948); Puyallup Tribe v. Dept. of Game, 391 U.S. 392 (1968).

291. 39 Stat. 1702.

292. 50 Stat. 1311.

293. 16 U.S.C. § 703 et seq.

294. Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 56 Stat. 1355.

295. 56 Stat. 1362-1364. A similar obligation is incurred to protect natural scenery, 56 Stat. 1364.

296. 56 Stat. 1366. For information concerning the Annex, see Note at 56 Stat. 1366 referencing Treaty Series 981, pp. 27-77.

297. 79 Stat. 1125, 16 U.S.C. § 757a et seq.

298. 16 U.S.C. § 757a(a).

299. 16 U.S.C. § 757b(5).

300. Udall v. FPC, 387 U.S. 428 (1967).

301. 387 U.S. 428, 438.

302. 387 U.S. 428, 439-440.

303. 387 U.S. 428, 450.

304. 16 U.S.C. § 661 et seq.

305. Udall v. FPC, supra, at 443.

306. 16 U.S.C. § 661.

307. Zabel v. Tabb, 296 F. Supp. 764 (M.D. Fla., 1969).

308. Zabel v. Tabb, __ F.2d __ (5th Cir. July 16 1970), 1 E.R. 1449.

309. H. Rep. No. 91-113, March 24, 1969, 91st Cong., 1st Sess.

310. 16 U.S.C. § 742a et seq.

311. Scenic Hudson Preservation Conf. v. F.P.C., 354 F.2d 608 (2d Cir. 1965).

312. Act of June 12, 1960, 74 Stat. 215, 16 U.S.C. § 528, et seq.

313. 16 U.S.C. § 528.

314. 16 U.S.C. § 529.

315. 16 U.S.C. § 531(a).

316. 309 F. Supp. 593 (D. Colo. February 27, 1970). Notice of appeal filed with the Tenth Circuit, May 12, 1970.

317. E.g., Yellowstone and Sequoia are "dedicated and set apart as public parks or pleasuring grounds for the benefit and enjoyment of the people." 16 U.S.C. 21, 41. Big Bend is established for "recreational park purposes", 16 U.S.C. 156. A long list of prohibited acts are set forth individually for several parks, 16 U.S.C. 60, 98, 117c 127, 128, 170, 198c, 204, 204d, 256b, 256c, 394, 395c, 408k. The Virgin Islands National Park is to be preserved "in its natural condition for public benefit and inspiration", 16 U.S.C. § 398. The Everglades is to be retained as "wilderness" and the flora, fauna and "essential primitive natural conditions" are to be preserved. 16 U.S.C. § 410c.

318. 16 U.S.C. § 411 et seq.

319. 16 U.S.C. § 459 et seq.

320. 16 U.S.C. § 460m et seq.

321. 16 U.S.C. § 460n et seq., 16 U.S.C. § 460 v. et seq. (Some of these will be administered by the Forest Service. See, e.g., 16 U.S.C. § 460p.

322. 16 U.S.C. § 460u.

323. 16 U.S.C. § 431.

324. 16 U.S.C. § 1.

325. 16 U.S.C. § 20.

326. Sierra Club v. Hickel, __ F.2d __, 1 ER 1699 (9th Cir. Sept. 16, 1970).

327. See p. 50023, supra.

328. 43 U.S.C. §§ 161-302.

329. 43 U.S.C. §§ 321-339.

330. 43 U.S.C. §§ 315-315r.

331. See, e.g., 43 U.S.C. §§ 141-158.

332. 43 U.S.C. §§ 1411-18.

333. 43 U.S.C. 1412.

334. 30 Fed. Reg. 12916-12922; 43 C.F.R. § 2410 et seq.

335. Memorandum from Associate Solicitor, Division of Lands, to Assistant Secretary, Public Land Management, June 19, 1967.

336. 43 U.S.C. § 1418. The Commission's report, One Third of the Nation's Land (June, 1970) 432 pp., is available from the Government Printing Office.

337. Statement of BLM Director Rasmussen, etc., Hearing Before the Subcommittee on Public Lands, Senate Committee on Interior and Insular Affairs, 90th Cong., 1st Sess., (1967).

338. 16 U.S.C. § 1131 et seq.

339. 43 U.S.C. § 1417 (a).

340. This was Interior's position during the legislative process. Hearings on H.R. 5159, H.R. 5498, and H.R. 8070, Subcom. on Publ. Lands, Comm. on Interior and Insular Affairs, 88th Cong., 2d Sess. (1964). See also 43 C.F.R. § 2410.1-4(b) (1968).

341. 43 C.F.R. §§ 2410.1-4(b)(2) (1968).

342. 43 C.F.R. §§ 2411.2(d) and (e).

343. 43 U.S.C. § 315 et seq.

344. Exec. Order No. 6910, Nov. 26, 1934.

345. Exec. Order No. 6964, Feb. 5, 1935.

346. 43 U.S.C. § 1411.

347. See p. 50023, supra.

348. 30 U.S.C. § 22, et seq.

349. 30 U.S.C. § 181, et seq.

350. 30 U.S.C. § 601, et seq.

351. 30 U.S.C. § 611, et seq.

352. 390 U.S. 599 (1968).

353. 16 U.S.C. §§ 671-697a, 721-731, 1161-1168.

354. 16 U.S.C. §§ 715-718f.

355. See, e.g., Public Land Orders Nos. 2213 and 2214 of Dec. 6 1960, establishing Kuskokwim National Wildlife Range, 25 Fed. Regis. 12597, and the Arctic National Wildlife Range, 25 Fed Regis, 12598.

356. 16 U.S.C. § 742a et seq.

357. 16 U.S.C. § 688dd.

358. See e.g., 16 U.S.C. § 742a, and 16 U.S.C. § 742b.

359. 80 Stat. 927, 928; 16 U.S.C. § 668dd.

360. 76 Stat. 653, 16 U.S.C. 460k.

361. Sierra Club v. Hickel, __ F. Supp. __ (N.D. Calif. 1969); reversed __ F.2d __ (9th Cir. Sept. 16, 1970).

362. 16 U.S.C. § 688.

363. 78 Stat 890, 16 U.S.C. § 1131 et seq. Wilderness is defined in 16 U.S.C. § 1131(c).

364. Environmental Quality: The First Annual Report of the Council on Environmental Quality, August, 1970, p. 180.

365. Gandt v. Hardin __ F. Supp. __ (Civil No. 1334, W.D. Mich. 1969); Parlses v. U.S., 309 F. Supp. 593 (D. Colo., Feb. 27, 1970); West Virginia Highlands Conservancy. v. Island Creek Coal Company, Civil No. 70182-E (N.D. W. Va. June, 1970).

366. Act of July 7, 1958, 72 Stat. 339, as amended by the Act of June 25, 1959, 73 Stat. 141.

367. Miller v. United States, 159 F.2d 997 (CA 9, 1947).

368. The Organic Act of May 17, 1884, Sec. 8, 23 Stat. 24-26, Act of June 6, 1900, Sec. 27, 31 Stat. 321, 330.

369. 34 Fed Reg. 1025 (1969).

370. The two-day public hearing was held August 29 and 30, 1969, at the University of Alaska. Records of the hearing are available at Bureau of Land Management offices in Fairbanks, Anchorage, and Washington, D.C.

371. Wilderness Society v. Hickel, __ F. Supp. __ (D.D.C. April 23, 1970). See also Allalseket v. Hickel, __ F. Supp. __ (D.D.C. 1970).

372. Swarth, Offshore Submerged Lands: An Historical Synopsis, 6 Land & Natural Resources Division Journal (U.S. Dept. of Justice) (1968), p. 109. Also see Swarth, Offshore Boundary Problems, L&NRJ 405 (1968). As a general reference see Shalowitz, Shore and Sea Boundaries (1962).

373. Martin v. Waddell, 16 Pet. 367 (41 U.S.) (1842); Massachusetts v. New York, 271 U.S. 65 (1926).

374. Pollard v. Hagan, 3 How. 212 (44 U.S.) (1845).

375. Swarth, supra, p. 112.

376. Proclamation No. 2667, 59 Stat. 884. The proclamation specifies that it does not affect the character of the high seas of the waters above the continental shelf.

377. Exec. Ord. 9633, 10 Fed. Reg. 12305 (1945).

378. United States v. California, 332 U.S. 19 (1947), decrees at 332 U.S. 804 (1947); United States v. Texas, and United States v. Louisiana, 339 U.S. 699 (1950), decress at 340 U.S. 899, 900 (1950).

379. Exec. Order No. 10426, 18 Fed. Reg. 405.

380. Submerged Lands Act of May 22, 1953, 67 Stat. 29, 43 U.S.C. §§ 1301-1315.

381. Alabama v. Texas; Rhode Island v. Louisiana, 347 U.S. 272.

382. United States v. Louisiana, 363 U.S. 1 (1960); United States v. Florida, 363 U.S. 121 (1960).

383. The Outer Continental Shelf Lands Act of August 7, 1953, 67 Stat. 462, 43 U.S.C. §§ 1331-1343.

384. 43 U.S.C. § 1334.

385. 43 U.S.C. § 1337(a).

386. Id. Bidding must be by sealed bids with a cash bonus to be fixed by the Secretary and a royalty rate of not less than 12 1/2% of the value of production.

387. 43 U.S.C. § 1337(b).

388. 43 U.S.C. § 1334(b)(1).

389. 43 U.S.C. § 1334(b)(2).

390. 43 C.F.R. § 3380, et seq.

391. 30 C.F.R. § 250, et seq.

392. See, F.R Harlow, The Oil Men and the Sea, 2 Ariz. L. Rev. 677 (1969), and M. Baldwin, The Santa Barbara Oil Spill, 42 U. Colo. L. Rev. 33 (1970).

393. 30 C.F.R. § 250.43, August 22, 1969. These liability standards were not affected by the Water Quality Improvement Act, which dealt with offshore drilling within the U.S. territorial waters. Pub. L. No. 91-224, 84 Stat. 91, April 3, 1970, § 11(b).

394. 43 C.F.R. § 3381, § 3382 and § 3381.4, August 22, 1969. This environmental analysis is not required for drainage tract leasing, § 3381.6.

395. 43 C.F.R. § 3381.4.

396. 43 C.F.R. § 3381.4. No public hearings were held by Interior prior to leasing in Santa Barbara Channel. Since the new regulations, BLM held hearings in New Orleans (July 14-15, 1970) before deciding whether to hold a new lease sale in the Gulf of Mexico.

397. 30 C.F.R. § 250.38. However, the USGS does not require submission of all data and interpretations obtained by oil companies before leasing.

398. 30 C.F.R. § 250.97.

399. Geneva Convention on the Continental Shelf, March 24, 1961, 15 U.S.T. 71, T.I.A.S. No. 5578, Article I.

400. The United Nations General Assembly passed a resolution to prohibit all nations from exploiting resources of the seabed beyond national jurisdiction, pending creation of an international seabed regime. A. RES/2574A (U.N. Sess. XIV, December 15, 1969).

401. August 3, 1970.

402. One Third of the Nation's Land, a Report to the President and to the Congress by the Public Land Law Review Commission, June 1970, at 188.

1 ELR 50001 | Environmental Law Reporter | copyright © 1971 | All rights reserved