Inaction as Action Under NEPA: EIS Not Required for Interior's Failure to Halt Alaskan Wolf Hunt

INACTION AS ACTION UNDER NEPA: EIS NOT REQUIRED FOR INTERIOR'S FAILURE TO HALT ALASKAN WOLF HUNT

A question that has long eluded definitive judicial resolution is whether a federal agency's failure to prevent an environmental significant state or private activity from occurring can constitute major federal action for which an environmental impact statement (EIS) must be prepared under § 102(2)(C) of the National Environmental Policy Act (NEPA).¹ It is well established that the Act requires a federal agency to prepare an EIS analyzing such a non-federal project when it proposes to approve financial assistance or issue a permit without which the activity could not proceed.² Moreover, an agency's failure to exercise its authority to stop a state or private action from taking place may obviously have much the same practical effect on the environment as issuance of a federal license or permit for the project. Those courts that have addressed the issue, however, have divided over whether such "inaction" can be considered "major Federal action" under NEPA.³

The difficulty of this problem has been illustrated most dramatically by conflicting decisions from courts on both coasts in several cases concerning the Department of the Interior's refusal to prepare environmental impact statements in conjunction with its failure to invoke its power under the Federal Land Policy and Management Act (FLPMA)⁴ to prevent state-sponsored aerial wolf hunt programs from going forward on certain federally managed lands in Alaska. A recent ruling by the District of Columbia Circuit Court of Appeals appears to reconcile the two previously divergent lines of authority and strongly reinforces the view that such agency inaction is generally not subject to NEPA's EIS requirements. The court's opinion also represents one of the first judicial examinations of federal versus state roles in managing wildlife on federal lands under FLPMA. Some uncertainty nevertheless remains as to precisely how agency inaction and action are to be differentiated for NEPA purposes.

The Alaska Wolf Hunts: Background and Prior Litigation

In 1976 the Alaska Department of Fish and Game, alarmed by a severe decline in the population of the Western Arctic caribou herd, proposed an aerial hunting program to eliminate approximately 80 percent of the wolf population, or 1,000 animals, from an area encompassing 144,000 square miles of Article territory, portions of which are under federal jurisdiction.⁵ Several animal welfare organizations brought suit against the Secretary of the Interior in the federal district court in Washington, D.C., seeking an order requiring the Secretary to stop the wolf kill on federal lands pending preparation of an environmental impact statement. The court granted plaintiffs' motion for preliminary injunctive relief,⁶ agreeing that since the Secretary had authority under § 302 of FLPMA to prevent the hunt from taking place on federal lands, his failure to exercise that power to protect the environment constituted "action" within the meaning of § 102(2)(C) of NEPA.⁷ Judge Gasch acknowledged that the federal government was neither funding nor directly participating in the wolf hunt program, but in his view this did not necessarily mean that the Secretary had no obligation to prepare an environmental impact statement. A federal agency decision which permits a state or private party to take action significantly affecting the environment, he explained, can constitute a major federal action for NEPA purposes. An attempt to distinguish the approval of such action from mute acquiescence in its continuation would be to elevate form over substance.

The Secretary, in compliance with the preliminary injunction issued by the court, ordered the state by telegram to halt the wolf hunt on lands within his jurisdiction. The state, which had not been a party to the lawsuit, obeyed the Secretary's order and promptly filed suit in federal district court in Alaska seeking a declaratory judgment that the order was invalid. Judge von der Heydt granted the state's motion for summary judgment,⁸ ruling that although the Secretary had discretionary authority under FLPMA to halt the wolf hunt on federally administered lands, he was not required to prepare an EIS under NEPA when electing not to exercise that discretion. In the court's view, "mere acquiesence" in the state-sponsored hunt by failing to invoke the authority to stop it was not the sort of "affirmative" federal conduct approving a state or private project that qualifies as "major Federal action" under NEPA. Indeed, the court suggested, if an EIS were necessary at all, it would be more appropriate in connection with the Secretary's affirmative order closing the affected federal lands to state-sponsored wolf hunting.

On appeal, the Ninth Circuit held, in Alaska v. [10 ELR 10056] Andrus,⁹ that the Secretary's failure to stop the wolf hunt program was not the type of conduct that requires an EIS. Rejecting categorically the notion that agency inaction can constitute "major Federal action" under NEPA, the court of appeals vigorously affirmed the district court's decision in a short opinion. Following this decision by the Ninth Circuit, the D.C. Circuit vacated¹⁰ Judge Gasch's ruling, which was then before it on appeal, on grounds of comity and ordered the complaint dismissed for "want of equity." The court of appeals explained the latter prong of this ruling by noting that the then-recent executive land withdrawals¹¹ in Alaska had provided plaintiffs a measure of practical relief and had infected the issues with a certain staleness.

The 1979 Litigation

In February 1979, the Alaska Department of Fish and Game again proposed to conduct an aerial wolf hunt on public lands, althohgh on a somewhat smaller scale and in a different area of the state. The 1979 program's goal was the destruction of 170 wolves, or approximately 60 percent of the existing population in a 35,000 square mile area. Ten animal welfare and environmental organizations quickly filed suit in the federal district court in Washington, D.C., seeking an injunction requiring the Secretary of the Interior to halt this second state-sponsored wolf hunt on federal lands. The complaint raised essentially the same NEPA claims that had succeeded in the earlier litigation in the same court.

Judge Green accepted plaintiffs' contentions and issued a preliminary injunction 11 days later,¹² concluding that the Secretary had a non-discretionary duty under § 302(a) of FLPMA¹³ to "plan for and manage" the federal lands in question and thus a correlative obligation under NEPA to exercise his supervisory power to prohibit major activities significantly affecting the environment of those lands until an EIS had been prepared. The court noted that the Ninth Circuit had reached a different result in Alaska v. Andrus but stated that, in the absence of more explicit guidance from the D.C. Circuit Court of Appeals, it felt bound to follow its own prior ruling. The court thus held that compliance with NEPA's EIS requirements was necessary when a federal agency refrained from exercising power that could be used to enhance environmental quality or prevent significant adverse environmental effects. Inaction of this sort, the court emphasized, can affect the environment to the same degree as affirmative action.

The D.C. Circuit Decision

In Defenders of Wildlife v. Andrus,¹⁴ the D.C. Circuit closed this jurisprudential schism by reversing the district court and holding that the Secretary had not violated NEPA because his conduct did not constitute "major Federal action" within the meaning of the statute. Reviewing the lower court's decision regarding NEPA's requirements on a de novo basis, the court of appeals first determined that the plain language of § 102(2)(C) and the gloss upon it provided by several Supreme Court opinions¹⁵ show that "inaction" cannot be considered "action" for NEPA purposes. One basis for this ruling was the common sense assumption that these terms are definitional opposites and thus mutually exclusive. The court pointed to the Supreme Court's consistent emphasis on the need for a proposal for a federal course of action to trigger the EIS requirement as a clear indication that no impact statement need be prepared if an agency neither proposes to act nor ultimately does so.

The court of appeals similarly rejected the related contention that when a federal agency fails to prevent an environmentally significant state or private activity, its knowing acquiescence makes it a partner in that action for NEPA purposes. Dismissing as misguided plaintiffs' reliance on dicta in Scientists Institute for Public Information v. AEC¹⁶ to support this proposition, the court stated flatlythat no case has ever actually found "Federal action" where an agency simply adopted the "wholly passive" posture of failing to half a state or private activity. To federalize state or private action under NEPA, the court explained, federal "approval" of another party's activity must involve some "overt act" by the federal agency in furtherance of the project. Examples of affirmative acts that would, in the court's view, constitute NEPA-triggering federal action are issuance of a lease, granting of a permit, signing of a contract, or the award of a right-of-way.

Acknowledging that its reading of the requirements of § 102(2)(C) might seem formalistic, the court of appeals asserted that its decision was also dictated by pragmatic considerations. The district court's interpretation of the Act is undercut by the general rule of reason governing NEPA's requirements for environmental analysis¹⁷ because it would overburden and trivialize the statute.¹⁸ To impose upon agencies the obligation to prepare either an EIS or a negative determination every time they have the power to act but do not, the court warned, would be to push the impact statement requirement to ridiculous extremes. The district court ruling in this case, for example, would seemingly require the Secretary to seek out and halt all state-sponsored or private environment-shaping activity over which he has supervisory jurisdiction until NEPA procedures could be completed in each case.

The court drew further support for these conclusions from a letter¹⁹ from the General Counsel of the Council [10 ELR 10057] on Environmental Quality (CEQ) to the Department Justice setting forth CEQ's views on the litigation concerning the original wolf hunt. The letter endorsed the concern that mandating NEPA compliance in these circumstances would create serious administrative burdens and bloat the environmental review process. In CEQ's opinion, no EIS was required under the Act or the Council's own recently issued NEPA compliance regulations "where no Federal decisions are required."

In the final section of its opinion, the court of appeals examined and discarded the district court's conclusion that FLPMA imposes upon the Secretary a non-discretionary supervisory responsibility over the federal lands in question, which requires him to prevent environmentally significant activities from occurring on these lands until an EIS has been prepared. In essence, plaintiffs read FLPMA to impose upon the Secretary duties analogous to those of a trustee. On the contrary, the court found, the Secretary's general duty to plan for and manage federal lands under the Act is circumscribed by its careful and explicit reaffirmation of the traditional primacy of the states in wildlife management. The determinative statutory provision is § 302(b),²⁰ which allocates to the states the primary responsibility for managing wildlife on the federal lands with their borders. This section of the Act also provides that the Secretary "may," after consultation with state authorities, intervene to halt hunting under a state management program. However, the court of appeals emphasized, this limited discretionary authority to override state management is a far cry from a nondiscretionary duty to half the wolf hunt pending NEPA compliance. A holding that every state wildlife management action the Secretary fails to prevent becomes a federal action for which an EIS is required flies in the face of the explicit assurances in the statutory language and legislative history that states retain their traditional authority to control hunting and fishing within their borders. As a final matter, the court of appeals noted that it need not reach the question of whether the Secretary had violated the provisions of FLPMA itself because the district court's ruling had gone only to the issue of FLPMA's effect upon his obligations under NEPA.

Discussion

"Inaction" Under NEPA

As the court of appeals acknowledged in Defenders of Wildlife, there is at least some basis in its own circuit's case law for plaintiffs' contention that environmentally significant inaction by a federal agency can trigger NEPA's EIS requirements. In SCRAP v. United States,²¹ the federal district court ruled that the Interstate Commerce Commission's refusal to exercise its power to suspend a privately proposed rail rate surcharge constituted a major federal action with significant environmental effects for which preparation of an EIS was required.²² And in Scientists Institute for Public Information v. AEC,²³ the D.C. Circuit, in the course of concluding that an EIS had to be prepared on the liquid metal fast breeder reactor program, stated that federal action for NEPA purposes encompasses any agency decision "which permits action by other parties which will affect the quality of the environment."²⁴ Moreover, this notion is also facially appealing as a matter of logic if one assumes that the statute's basic concern is with the environmental end result of federal activities. From the perspective of the affected environment, an agency's failure to prevent a state or private activity that devastates the environment is indistinguishable from overt federal approval of the project.

The weight of precedent in other circuits is decidely in the opposite direction, however. The Ninth Circuit, prior to its ruling in Alaska v. Andrus,²⁵ had adopted the position early on that agency inaction is not to be considered federal action under NEPA. For example, in San Francisco Tomorrow v. Romney,²⁶ the court held that the Department of Housing and Urban Development's continuing contractual right to monitor an ongoing municipal redevelopment project for compliance with statutory and contractual requirements did not constitute further federal action necessitating an EIS. In Molokai Homesteaders Cooperative Ass'n v. Morton,²⁷ it ruled that the Secretary of the Interior's determination not to exercise his continuing power to object to an agreement for the rental of excess capacity within a federally financed irrigation pipeline "cannot realistically be classified as 'Federal action.'"²⁸ This view was also reflected in Biderman v. Morton,²⁹ in which the Second Circuit held that federal authority to condemn property on a national seashore island was not equivalent for NEPA purposes to a requirement for prior federal approval of municipal zoning decisions.

The superficial appeal of the proposition that an agency [10 ELR 10058] is required to prepare an EIS when it refrains from halting an environmentally adverse state or private activity masks an additional difficulty that was not articulated in the D.C. Circuit's opinion. Under the traditional model of injunctive relief for NEPA violations, a court will prohibit the agency from acting to alter the environmental status quo until an adequate EIS can be prepared and considered.³⁰ Similarly, a court that finds that agency inaction violates the Act logically must thus order the agency to maintain the status quo pending preparation of an impact statement. But in the latter case, the court must direct the agency to take affirmative action, as for example to halt non-federal activity over which it has mere supervisory jurisdiction, until an EIS is filed.

Although the remedy in both instances is designed to preserve the environmental status quo, the institutional end result is crucially different. In the traditional situation, the court order aimed at assuring NEPA compliance simply forestalls a project or activity that the agency has already decided to undertake. In the second instance, however, the court in effect forces the agency to take an affirmative step which it views as unwise or unnecessary while it considers whether the circumstances truly warrant such action. The application of NEPA's EIS provisions to agency inaction is likely to force courts into the posture of mandating agencies to prevent the actions of others and thus to usurp the basic administrative initiative of the agency. This serves as astrong indication that such a reading of the statute is incorrect or at least unappealing.

In some instances, moreover, such as the wolf hunt cases, the environment will be in such a state of flux that it will be all but impossible for a reviewing court to determine in the absence of a completed EIS whether federal inaction threatens greater environmental consequences than would federal intervention to halt a state program designed to rectify some aspect of the situation. Does, for example, a massive decimation of the wolf population in the hope of saving the caribou herd entail more profound environmental effects than preservation of the wolves at the expense of continued depletion of the carbiou? The district court in Washington, D.C., apparently concluded, on the basis of allegations in the complaint and plaintiffs' affidavits, that ordering a halt to the hunt was the environmentally protective course. Looking at the same factual circumstances, the district court in Alaska, the state Fish and Game Department, and presumably the caribou, if they could make their views known, instead saw the hunt program as an effort to remedy a deteriorating situation and restore environmental balance.

All of this is not to say, however, that future courts will encounter no difficulty in applying the D.C. Circuit's interpretation of the statute. Although it establishes that agency inaction generally cannot constitute federal action for NEPA purposes, the court's opinion recognized that this distinction is not readily applicable to all factual settings. This is evident from CEQ's NEPA regulations, which include within the definition of major federal action a failure by "responsible officials" to act when such inaction is reviewable "under the Administrative Procedure Act or other applicable law as agency action."³¹ The determinative factor under the regulations thus appears to be whether the agency inaction is reviewable for procedural lapses or on the merits apart from any claimed NEPA violation. A similar and possibly identical formula was explicated by the CEQ General Counsel. It fastens upon whether the agency refusal to act represents the outcome of a decision-making process that the agency was "required" to conduct. Under this formulation, NEPA compliance is necessary if the agency is mandated by statute or regulation to decide whether to act under certain circumstances and its opts not to do so. If, on the other hand, the statutory or regulatory scheme leaves the agency free to act or not to act when and if it deems appropriate, its failure to do so in a particular instance seemingly does not implicate NEPA's EIS requirements.

This delineation between inaction and action under NEPA seems analogous to the D.C. Circuit's conclusion in Defenders of Wildlife that EIS preparation was not necessary because the Secretary's authority to intervene under § 302(b) of FLPMA was discretionary. The court explained that, because FLPMA did not compel the Secretary to make a decision regarding suspension of the state-sponsored hunting program, he bore no obligation to prepare an impact statement when he declined to exercise that authority. The court unfortunately made no effort to go beyond the facts before it and provide further guidance as to how this dichotomy is to be applied in other instances.

Federal vs. State Roles Under FLPMA

Although the D.C. Circuit declined to decide whether the Secretary had violated his duties under FLPMA, its discussion of the NEPA issue emphasized the limited nature of his obligations under the former Act. Conceding that the Secretary has a general duty under § 302(a) of FLPMA³² "to plan for and manage federal land and resources," the court nonetheless characterized his authority over state wildlife management programs on federal lands as essentially benign oversight. The statute in its view arguably permits but certainly does not require him to intervene to halt a state program.

The court's conclusion that FLPMA did not overturn the traditionally dominant state role in wildlife management is consonant with the sweeping savings provision in § 302(b).³³ It is also in accord with clear indications in the legislative history³⁴ that Congress intended primary responsibility over such matters to remain with the states subject to possible federal suspension of state programs when the Secretary deems it necessary and even then only after consultation with state officials. The district court paid little attention to these specific limitations in § 302(b) while making much of the broader planning and management directive of § 302(a).

[10 ELR 10059]

As the court of appeals rightly perceived, moreover, the net effect of the district court's reading of the Act would be to halt every state management program until the Secretary could review its environmental impacts. This would not only impose a crushing administrative burden upon the Secretary but would also produce intolerable delays for wildlife management programs generally.³⁵

Conclusion

The D.C. Circuit's decision in Defenders of Wildlife v. Andrus harmonizes the case law regarding the applicability of NEPA's EIS requirement to agency inaction. It now seems established that an agency's failure to invoke its supervisory authority to stop environmentally significant state or private activity cannot constitute "major Federal action" for NEPA purposes. The line between inaction and action drawn by the court and the CEQ NEPA regulations is sufficiently ambiguous, however, that future courts will undoubtedly be called upon to provide a more precise delineation between the two categories. Additional challenges to agency inaction on NEPA grounds are thus likely in the wake of the D.C. Circuit's ruling, albeit as a series of ripples rather than a wave.

The decision also examines the Secretary of the Interior's authority under FLPMA to interfere with state wildlife management on federal lands. Although the court declined to rule on whether the Secretary had violated any duty under the Act, its opinion makes clear the limited nature of his power to supersede ongoing state programs. The message to prospective challengers who might hope to invoke judicial sanctions to force the Secretary to halt state management practices with which they disagree is similarly clear: a court is likely to view the Act as simply empowering the Secretary to intervene at his discretion and therefore to refuse to direct him to act where he has declined to do so.

1. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

2. Kleppe v. Sierra Club, 427 U.S. 390, 399-400, 6 ELR 20532, 20534 (1976); see also, W. RODGERS, ENVIRONMENTAL LAW § 7.6 at 761-63 (1977).

3. Compare Alaska v. Andrus, 591 F.2d 537, 9 ELR 20137 (9th Cir. 1979) and Biderman v. Morton, 497 F.2d 1141, 4 ELR 20487 (2d Cir. 1974) with Scientists Institute for Public Information v. AEC 481 F.2d 1079, 1088, 3 ELR 20525, 20529 (D.C. Cir. 1973) (dictum) and Defenders of Wildlife v. Andrus, 7 ELR 20255 (D.D.C. 1977). See also, Fergenson, The Sin of Omission: Inaction as Action Under § 102(2)(C) of the National Environmental Policy Act of 1969, 53 IND. L.J. 497, 501-07 (1978).

4. Section 302(b), 43 U.S.C. § 1732(b), ELR STAT. & REG. 41466.

5. In addition to this attempt to reduce caribou losses to wolf predation, the Department also curtailed subsistence hunting of caribou by Alaska natives.

6. Defenders of Wildlife v. Andrus, 7 ELR 20225 (D.D.C. Feb. 14, 1977).

7. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

8. Alaska v. Andrus, 429 F. Supp. 958, 7 ELR 20505 (D. Alaska 1977).

9. 591 F.2d 537, 9 ELR 20137 (9th Cir. 1979).

10. Defenders of Wildlife v. Andrus, Nos. 77-1611, 78-1248 (D.C. Cir. Mar. 16, 1979).

11. 14 WEEKLY COMP. OF PRES. DOC. 2111 (Dec. 4, 1978); BLM Public Land Order No. 5654, 43 Fed. Reg. 59576 (Dec. 21, 1978). These withdrawals established a number of new national monument areas in which only limited sport hunting is allowed. See generally, Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands, 8 ELR 10245 (1978).

12. Defenders of Wildlife v. Andrus, No. 79-800 (D.D.C. Mar. 23, 1979).

13. 43 U.S.C. § 1732(a) ELR STAT. & REG. 41466.

14. __ F.2d __, 10 ELR 20163 (D.C. Cir. Feb. 5, 1980).

15. Andrus v. Sierra Club, 442 U.S. 347, 99 S. Ct. 2335, 9 ELR 20390 (1979); Kleppe v. Sierra Club, 427 U.S. 390, 6 ELR 20532 (1976); Aberdeen & Rockfish R.R. v. SCRAP (SCRAP II), 422 U.S. 289, 5 ELR 20418 (1975).

16. 481 F.2d 1079, 1088-89, 3 ELR 20525, 20529 (D.C. Cir. 1973).

17. See NRDC v. Morton, 458 F.2d 827, 834, 2 ELR 20029, 20032 (D.C. Cir. 1972).

18. See Andrus v. Sierra Club, 442 U.S. 347, 99 S. Ct. 2335, 2341-42, 9 ELR 20390, 20393 (1979).

19. Letter from Nicholas C. Yost, General Counsel, Council on Environmental Quality, to James W. Moorman, Ass't Attorney General (Jan. 10, 1979).

20. Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest system where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations of the Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the appropriate State fish and game department.

43 U.S.C. § 1732(b), ELR STAT. & REG. 41466.

21. 346 F. Supp. 189, 2 ELR 20486 (D.D.C. 1972).

22. The Supreme Court ultimately reversed the decision on other grounds. United States v. SCRAP (SCRAP I), 412 U.S. 669, 3 ELR 20536 (1973).

23. 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973).

24. Id. at 1088, 3 ELR at 20529.

25. 591 F.2d 537, 9 ELR 20137 (9th Cir. 1979).

26. 472 F.2d 1021, 3 ELR 20124 (9th Cir. 1973).

27. 506 F.2d 572, 5 ELR 20024 (9th Cir. 1974).

28. Id. at 580, 5 ELR at 20027.

29. 497 F.2d 1141, 4 ELR 20487 (2d Cir. 1974).

30. See W. RODGERS, ENVIRONMENTAL LAW § 7.10 at 799 (1977) (remedy presumptively available in all cases in the injunction to maintain the status quo).

31. 40 C.F.R. § 1508.18, ELR STAT. & REG. 46033.

32. 43 U.S.C. § 1732(a), ELR STAT. & REG. 41466.

33. [N]othing in this Act shall be construed … as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife.

43 U.S.C. § 1732(b), ELR STAT. & REG. 41466.

34. See H.R. REP. No. 94-1163, 94th Cong., 2d Sess. 6 (1976); H.R. REP. No. 94-1724, 94th Cong., 2d Sess. 60 (1976).

35. Such an interpretation also subverts the statutory allocation of primary management authority to the states by effectively mandating supervisory federal intervention in every instance. The D.C. Circuit's conclusion that one section of FLPMA can hardly be read to usurp powers clearly left with the states by another portion of the Act seems quite convincing.