Lee v. Bergland

Nos. 80-4560, 81-4063, -4071 (9th Cir. February 9, 1982)

The court upholds the dismissal of a claim that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) and its own regulations by denying appellants' request for renewal of a residence permit without preparing an environmental report. It notes that courts have no jurisdiction to review actions committed to agency discretion by law, but holds that they do have jurisdiction to review allegations that an agency failed to comply with its own regulations. However, the court finds no such failure by USFS. The programmatic decision to terminate residential permits was made prior to enactment of NEPA and the statute has no retroactive effect. The post-NEPA termination of appellants' permit does not make NEPA applicable because it was not a major federal action. As a result, USFS regulations under § 102(2)(C) relating to "ongoing" projects are also inapplicable.

Counsel for Appellants
H. Cary Stewart
Williams, Jaffe & Stewart
Suite 330, Ocean Pk. Blvd., Santa Monica CA 90405
(213) 450-7488

Counsel for Appellees
James E. White, Ass't U.S. Attorney
650 Capitol Mall, Rm. 2058, Sacramento CA 95814
(916) 448-2331

Before Sneed, Tang, and Pregerson, JJ.

[12 ELR 20432]

Appellants Robert and Ileana Lee (Lee) held a special use permit entitling them to maintain a cabin in Inyo National Forest. When the permit expired in 1978, Lee was required to vacate the land and remove the structure. Lee sought to extend the permit. The Forest Service denied his request. After administrative appeals failed, Lee brought this action against the Secretary of Agriculture, et al. (Secretary), charging that the Forest Service had violated § 4332(2)(E) of the National Environmental [Policy] Act [NEPA], 42 U.S.C. § 4321 et seq., and subsequent Forest Service directives issued pursuant to the statute by not preparing an environmental report before denying the request.^* The district court dismissed Lee's claim, holding that NEPA did not apply to the decision terminating Lee's permit because that decision predated NEPA and the decision did not constitute a major federal action. We affirm.

Before determining NEPA's applicability, we address the Secretary's argument that courts lack subject matter jurisdiction over this claim. The Secretary notes that the decisions on the permits are discretionary, 16 U.S.C. § 497, and courts may not review agency actions which are "committed to agency discretion by law." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 [1 ELR 20110] (1971). We, however, do have jurisdiction to review allegations that an agency "failed to comply with its own regulations." Ness Inv. Corp. v. United States Department of Agriculture, Forest Service, 512 F.2d 706, 714 (9th Cir. 1975). That is precisely the case here as Lee claims that the Forest Service violated the law and its own regulations by failing to provide an environmental report. This court has jurisdiction pursuant to 5 U.S.C. § 701, et seq.

NEPA, however, does not apply to this case. Lee concedes that the Secretary decided to terminate the private permits before Congress enacted NEPA and that NEPA has no retroactive effect. Furthermore, this Circuit has stated that NEPA applies only to those pre-NEPA decisions which require an additional major federal action significantly affecting the quality of the human environment after NEPA's effective date. San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024 [3 ELR 20124] (9th Cir. 1973); Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1223-4 [9 ELR 20432] (9th Cir. 1979). As the district court found, allowing Lee's permit to expire does not involve a major federal action.

Lee claims that this case does not require a retroactive application, but rather, application to an "ongoing" project within the requirements of 40 C.F.R. § 1500.13 (1976). Section 1500.13 applies to projects under subpart (C) which only covers major federal actions. 42 U.S.C. § 4332(2)(C). As the act at issue here is not a major federal action, the requirement to evaluate ongoing projects does not apply. Therefore, NEPA does not apply to the Secretary's decision not to extend the permit, the decision does not require an environmental report pursuant to subpart (E), and Lee's claim must be dismissed.

The judgment is AFFIRMED.

* Subpart E requires federal agencies to study, develop, and describe alternatives to any proposals which involve "unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). The Forest Service regulations specify that subpart E applies to terminating recreation residence permits. Forest Service Manual Directive 2721.23F2.