County of Del Norte v. Andrus

No. C-80-3964 (N.D. Cal. December 1, 1980)

After granting plaintiffs a temporary restraining order preventing closure of the comment period on a draft environmental impact statement (EIS) regarding inclusion of rivers in the National Wild and Sceni Rivers System, the court denies plaintiffs' request for a preliminary injunction. Notwithstanding plaintiffs' claims that they will suffer present and future injury if forced to respond to such a complex EIS in the regular 60-day comment period, the court finds that defendants have not abused their discretion in refusing to extend the comment period. Procedural errors of this sort can be adequately reviewed within a challenge to the adequacy of the final EIS.

Counsel for Plaintiffs
Alson R. Kemp
Pillsbury, Madison & Sutro
Standard Oil Bldg., 225 Bush St., San Francisco CA 94104
(415) 983-1000

Counsel for Defendants
Charles O'Connor, Ass't U.S. Attorney
Federal Bldg. & U.S. Cthse., 450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Counsel for State of California
M. Anne Jennings, Deputy Attorney General
6000 State Bldg., San Francisco CA 94102
(415) 557-2544

[11 ELR 20174]

Ingram, J.:

Memorandum of Decision

This case presents at the present time the sole question of whether or not the time for comment on a draft environmental impact statement prepared by an agency of the Department of the Interior may be extended by an injunctive order of this Court, and whether there is an adequate showing now before the Court to justify such a measure. After a careful review of the written materials submitted by the parties, the intervenor State of California and amicus curiae, and of the oral argument presented before this Court in San Jose on November 26, 1980, I have concluded that the showing before the Court is inadequate for the relief sought. Accordingly, the application for preliminary injunction is denied and the temporary restraining order heretofore issued is dissolved.

Plaintiffs' most compelling argument is that the complexity of the proposed project and the shortness of time to comment combine to deprive plaintiffs of the opportunity to make an adequate record for ultimate review if the decision of the Secretary of the Interior with respect to the designation of the rivers in question as part of the national system of wild and scenic rivers (16 U.S.C. § 1271 et seq.), is adverse to the position of plaintiffs. This is so, plaintiffs say, because unless comments are timely received, the preparers of the environmental impact statement need not address them and the views which would have been expressed had the period of comment been adequate to permit expression thus escape not only the attention of the preparers, but also the ultimate scrutiny of a reviewing court. Additionally, plaintiffs contend that the inadequacies of the draft statement coupled with the shortness of the comment period produced a failure to comply with the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), thus inflicting the type of "procedural injury" upon plaintiffs which is described in City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975), and which plaintiffs claim effectively deprives them of the opportunity to participate in a complete environmental analysis of the project in question. Plaintiffs suggest that the shortness of the comment period is consistent with the atmosphere of haste which has surrounded the project from its inception, and which is motivated by the desire of the proponents of the project to have it considered by the incumbent Secretary of the Interior prior to his leaving office.

Defendant Secretary contends that judicial intervention prior to the completion of the final environmental impact statement and announcement of a proposed action by the Secretary is premature, and that compliance with the National Environmental Policy Act should not be tested until the final environmental impact statement is complete. Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976). Defendant Secretary relies upon the only case cited involving extension of time limits¹ for comment, which is Bennett Hills Grazing Association v. United States, 600 F.2d 1308 [9 ELR 20660] (9th Cir. 1979). That case held that an extension of comment time was inappropriate as an unwarranted interference with the pre-decisional proceedings of an agency, particularly since the plaintiffs therein had not shown that judicial review after preparation of the statement would be inadequate as a matter of law. Defendant Secretary contends that he has complied with all Council on Environmental Quality regulations and with the National Environmental Policy Act, and that there is no showing of any abuse of his discretion.

The Court must conclude that there has been an insufficient showing of any abuse of discretion on the part of the Secretary or his agents, and that there is no showing that as a matter of law the plaintiffs will be denied effective judicial review in the event that they object to the ultimate decision of the Secretary. At oral argument plaintiffs stressed that a failure to extend the period of comment will imperil their present position and cause a dimunition of their present right to participate in the formation of the final environmental impact statement. They suggest that the terms of the final statement, absent comment, may require them to file further suits before they are in a position to adequately digest the terms of the final statement. None of these things constitutes a deprivation of judicial review as a matter of law, and under the holding of Bennett Hills, this Court lacks the power to afford the relief requested. The adequacy of judicial review in a somewhat similar situation is illustrated by Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105 [5 ELR 20311] (D.N.H. 1975), a case which has been cited in this proceeding by plaintiffs. There a failure to include certain data in the draft statement effectively limited the opportunity to comment thereon. The Court effectively reviewed that lapse in its consideration of the final statement, and afforded appropriate relief.

The time period of sixty (60) days here allowed for comment is consistent with Department of Interior guidelines. 45 Fed. Reg. 27,547 (1980) (Ch. 4.24A). Although circumstances are asserted by plaintiffs from which an inference of undue haste, if not collusion, could be drawn, these implications are denied by defendants, and I cannot say that defendants have acted arbitrarily, capriciously, or abusively in their exercise of discretion in not further extending the comment period.

For the reasons above stated, the application must be denied and the temporary restraining order dissolved.

1. Intervenor cites one case dealing with an approved comment period on a draft supplement which was less than the guideline minimum. State of Alaska v. Carter, 462 F. Supp. 1155 [8 ELR 20903] (D. Alaska 1978).