County of Del Norte v. United States

Nos. C-81-0567-WAI; -81-1457-WAI (N.D. Cal. February 11, 1983)

The court invalidates the Secretary of the Interior's designation of five wild and scenic rivers in California for failure to comply with Council on Environmental Quality (CEQ) regulations governing preparation of environmental impact statements (EISs). The court first rules that plaintiffs have standing because each has alleged an injury in fact that is within the zone of interests protected by the National Environmental Policy Act (NEPA). Although the claimed injuries are economic in nature, they would result from the agency action subject to NEPA. Furthermore, plaintiffs have been adversely affected within the meaning of the Administrative Procedure Act and their injury is likely to be redressed by the remedy sought.

The court rules that defendants violated the CEQ regulations when the Secretary made a decision on the river designations sooner than filing, notice, and publication time requirements allowed. The court rejects defendants' argument that the violation was insubstantial and the court in its equitable discretion should ignore it. The court rules that admitted false verification of filing dates constitutes sufficient harm to plaintiffs to merit summary judgment. The court also rules that the Secretary did not properly consider whether the State of California had agreed to administer the rivers as required by the California Wild and Scenic Rivers Act. Finally, the court refuses to grant summary judgment for plaintiffs on several other issues, including whether the use of samples and summaries of comments in the EIS was proper and whether defendants failed to consider reasonable alternatives to the proposed action.

Counsel for Plaintiffs
Alson R. Kemp Jr., James L. Warren, Mauricio A. Flores
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1000

Counsel for Defendants
Janice Siegel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2290

Counsel for Intervenors
Howard, Rice, Nemerovski, Canady, Robertson & Falk
Suite 2900, 650 California St., San Francisco CA 94108
(415) 434-1600

[13 ELR 20541]

Ingram, J.:

Memorandum of Decision

Since I issued a Memorandum of Intended Decision on October 15, 1982, intervening parties have made two evidentiary representations. Intervenor Environmental Defense Fund has reported that it can develop testimony in support of a contention that distribution of the Final Environmental Impact Statement to agencies and persons was accomplished by alternative means which rendered the filing of the Haubert declaration superfluous. Intervenor sought to take a deposition in support of this contention. I issued a protective orderwhich, in effect, denied the request on the basis that it was untimely and partakes of a post hoc rationalization.

Intervenor State of California has recently advised of certain amendments to the California Wild and Scenic Rivers Act, one of which deleted the "management plan" requirement. I have not considered this circumstance but the Secretary may wish to do so upon remand.

I. Decision

For the reasons hereinafter stated, the motion of plaintiffs for summary judgment is GRANTED.

For the purpose of the following discussion, certain abbreviations are sometimes used; F.E.I.S. means Final Environmental Impact Statement; D.E.I.S. means Draft Environmental Impact Statement; CEQ means Council on Environmental Quality; EPA means Environmental Protection Agency; HCRS means Heritage Conservation and Recreation Service; Del Norte Plaintiffs means the plaintiffs in action No. C-81-0567-WAI; and Water Plaintiffs means the plaintiffs in action No. C-81-1457-WAI.

II. Standing.

Defendants have moved to dismiss these consolidated actions because of plaintiffs' purported lack of standing to maintain their actions, and that by reason thereof this Court lacks jurisdiction of the causes. These motions are supported by intervenors.

Defendants and intervenors contend that plaintiffs are not within the zone of interest protected by NEPA, because with the exception of plaintiffs Scott and Galetz in action No. C-81-0567-WAI, they allege only an economic interest. Defendants and intervenors claim with respect to the two named individual plaintiffs, Scott and Galetz, a lack of standing on the basis that those plaintiffs have alleged only that they "use and enjoy" the rivers, and that the federal designation is not claimed to have impaired that use and enjoyment. Defendants and intervenors set forth the requirements of standing to challenge an agency action in reliance upon Western Mining Council v. Watt, 643 F.2d 618 [11 ELR 20440] (9th Cir. 1981), as follows: (1) a particular injury, (2) concretely and demonstrably resulting from defendants' conduct, (3) which will be redressed by the relief sought. They assert that plaintiffs and each of them have failed to demonstrate a particular injury which will be redressed by the relief which plaintiffs seek. In NEPA cases, these stated criteria must include the assertion of an "injury in fact," which is "arguably within the zone of interest to be protected or regulated" by the statute that plaintiff claims the agency violated.

I find that each of the plaintiffs in the consolidated actions have standing. They are within the zone of interest requirement of Association of Data Processing v. Camp, 397 U.S. 150 (1970), even though in some cases, notably those of the lumber company and Water District Plaintiffs, the claimed injury is alleged in economic terms. This is so because the claimed injuries (loss of tax revenues and effect upon the physical environment in the affected counties, loss of revenues from the dimunition of lumber industry activities, restriction of timber harvesting on federal lands, impairment of agreements for timber harvesting in national forest, loss of revenues in timber-related interests, loss of ability to plan for adequate facilities to meet future water supply and flood protection, and impairment of ability to furnish water for public water supplies) are alleged to causally result from the agency action falling squarelywithin NEPA, that is, the federal designation pursuant to the provisions of the Wild and Scenic River Act, 16 U.S.C., Section 1271, et. seq.; and Port of Astoria, Oregon v. Hodel, 595 F.2d 467 [9 ELR 20252] (9th Cir. 1979).

Plaintiffs have alleged that they are "adversely affected" or "aggrieved" within the meaning of the Administrative Procedure Act, 5 U.S.C., Section 702. Each plaintiff has adequately alleged perceptible harm by reason of the challenged wild and scenic rivers designation, and by reason of that I find that injury in fact has been adequately alleged.

Plaintiffs have alleged an injury to themselves that is "likely to be redressed by a favorable decision" c.f., Village of Arlington Heights v. Metropolitan Housing Development Corporation, 492 U.S. 252 (1977). This is so even if the redress sought here may not permanently alleviate the injury which plaintiffs apprehend and claim.Plaintiffs have alleged, among other things, procedural defects in the procedures leading to the secretarial designation. These allegations, if made by parties within the required zone of interest, in themselves show sufficient injury and remedial interest to support standing. City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975).

For the foregoing reasons I deny the motion to dismiss for lack of standing.

III. The Filing of the Environmental Impact Statement with the Environmental Protection Agency Was Defective Because of Failure of Compliance with Section 1506.10 of the CEQ Regulations

There is no genuine issue of material fact with respect to this issue. The Final Environmental Impact Statement was filed with the Environmental Protection Agency on December 12, 1980. The filing was accompanied by a verification that complete distribution of the Environmental Impact Statement to all agencies and [13 ELR 20542] persons was made at that time. (Deposition of O'Neal, p. 6, lns. 17-22.) Plaintiffs received no copy of the statement until December 17, 1980. (Declaration of Cline.) Plaintiffs' counsel received a copy of the E.I.S. on December 17, 1980, the same day that publication was made in the Federal Register. (Declaration of Carlone.) Section 1506.10 of the CEQ Regulations (40 C.F.R., Section 1506.10), provides in substance that publication in the Federal Register shall occur the week following the filing of Environmental Impact Statements with the Environmental Protection Agency, and that no decision upon such statements by any federal agency shall be rendered until the latest to occur of two events. These are: (1) ninety days after publication of Notice of Filing of a Draft Environmental Impact Statement; or (2) thirty days after the publications of Notice of Filing of Final Environmental Impact Statement. 40 C.F.R., Section 1506.9 provides in substance that statements shall not be filed with the Environmental Protection Agency earlier thatn they are also transmitted to commenting agencies and made available to the public.All minimum time periods, including decisions on proposals concerning which Final Environmental Impact Statements have been filed shall be calculated from the time of publication in the Federal Register.

If the provisions of Sections 1506.9 and 1506.10 had been properly complied with, the earliest valid filing date would have been during the week of December 15, 1980, and the earliest publication in compliance with the provisions of Section 1506.10 would have been during the week of December 22, 1980.

If the provisions of those sections had been properly complied with, the secretarial designation involved in this case could not have occurred until on or after January 21, 1981. Because the secretarial decision was rendered on January 19, 1981, it was untimely under the appropriate cited regulations and hence invalid.

While conceding the accuracy of the foregoing, defendants and intervenors contend that the regulations contemplate a public notice period between the publication of the filing of an E.I.S. in the Federal Register and the making of an agency decision within thirty days. They contend that the regulation thus intends a notice period of thirty days, and that more than thirty days ensued between the date of publication in this instance, December 17, 1980, and the secretarial decision which occurred on January 19, 1981. It is further contended that under the provisions of Section 1506.9, statements were available "on the date of filing of the E.I.S., December 12, 1980." They point out that the deposition of O'Neal reveals the copies of the E.I.S. were available at the H.C.R.S. office on that day. The same deposition reveals that distribution was not completed until December 15, 1980. The verification signed by John Haubert, a representative of the defendant Department of the Interior, states as follows:

The undersigned also verifies that complete distribution to all agencies-persons has been made simultaneous with this filing.

(Emphasis supplied.)

Intervenors suggest that in its exercise of equitable powers the Court should weigh the magnitude of what intervenors characterize as an inadvertent violation and the lack of harm suffered thereby by plaintiffs. They suggest that the purported inadvertence caused no substantial harm to plaintiff and that the breach of observance of the regulations should not undo the secretarial decision.

The federal defendants admit the verification filed by the employee of the Department of the Interior asserting the complete distribution to all agencies-persons had been made simultaneously with the filing was not true. They concede that no copies were available on that date, and that copies were not made available to the public until Monday, December 15, 1980. They agree that publication in the Federal Register ensued during the same week that copies were first made available to the public. They cite the declaration of Speth and the affidavit of Knight to the effect that the purpose of Sections 1506.9 and 1506.10(b)(2) are satisfied if the E.I.S. is available for public review for thirty days following publication in the Federal Register. They further rely on the statement of Speth to the effect that the "preceding week" phrase as used in Section 1506.10 is not intended to enlarge the thirty day period. That section provides for public and agency review of an E.I.S. Federal defendants contend that the Speth interpretation is reasonable and should be given substantial deference.

The Speth interpretation is at odds with the plain wording of the regulation. Agency expertise is not necessary to interpret the standard meaning of plaing English.

It is conceded that the false verification was negligent, but contended that it was not made with the intent to undermine the public review process, and that the calculation of the thirty day waiting period from December 17 should therefore be deemed a trivial violation since a thirty day review period was provided.

Federal defendants also contend together with intervenors, that plaintiffs and no one else have shown any harm by reason of the failure to observe the time periods set forth in the regulations. Federal defendants suggest that the relief sought by plaintiffs is punitive and may therefore not be granted, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 [10 ELR 20559] (9th Cir. 1980), and that the rule of harmless error applies.

In Buschmann v. Schweiker, 676 F.2d 352 (9th Cir. 1982), the Ninth Circuit reiterated that in administrative proceedings procedural safeguards which assure public access to a decision-maker should be vigorously enforced. In that case, the court found some complication in the application of the rule of prejudicial error as set forth in 5 U.S.C., Section 706, to a situation where prejudice could not be clearly inferred. Even so, the court invalidated the agency action because of the importance of failure to comply with notice and comment procedure.

It ill-becomes the federal defendants and the intervenors to characterize as trivial that which admittedly arises from the false verification of an employee of the defendants Department of the Interior. Much has been made in this case of the undue haste allegedly motivated by political considerations which plaintiffs claim characterize this entire designation process. Without assessing motivation, I think that the E.I.S. was prepared with requisite objectivity as will appear infra, however, it must be conceded that an inference may arise in this matter that the admitted false verification was undertaken to achieve an early Federal Register publication and subsequent secretarial designation. Citizens interested in agency matters such as this sould not have their procedural rights affected by acts of governmental falsehood even if inadvertently committed. Admitted false verification in and of itself in the Court's view, provides a sufficient actual harm to plaintiffs to justify entry of summary judgment.

IV. Adequacy of Commitment of State of California To Permanently Administer Rivers, 16 U.S.C., Section 1273(a)(ii)

Plaintiffs are entitled to summary judgment on the issue of whether the state of California responsibly demonstrated that the designated rivers "are to be permanently administered as wild, scenic or recreational rivers by an agency or public subdivision of the state . . . ."

The Secretary's decision approving the designation is a substantive one, and therefore is subject to judicial reversal only if it constitutes an abuse of discretion or is contrary to law, Lathan v. Brinegar, 506 F.2d 677 [4 ELR 20802] (9th Cir. 1974), American Petroleum Inst. v. Knecht, 609 F.2d 1306 [10 ELR 20083] (9th Cir. 1979).

In enacting the California Wild and Scenic Rivers Act, PUB. RES. CODE, Section 5093.50; et seq., the California Legislature specifically addressed the fashion in which designated rivers are to be managed, by requiring the submission for its consideration of a management plan of administration of each river and its adjacent land area in accordance with its classification. PUB. RES. CODE, Section 5093.85. The Legislature specifically reserved to itself the power of approval of management plans so submitted.

Thus, the question of the management of the rivers has been directly and specifically considered by the Legislature, which requires a plan specifically designed for river management to be evolved and developed after hearing.

In County of Del Norte v. Brown, Superior Court, Sacramento County, No. 292019, a final judgment, the Court held that neither the Governor of California nor the State Secretary of the Resources Agency has the legal power to commit the state of California to permanently administer the rivers in question within the meaning of 16 U.S.C., Section 1273(a)(ii), in the absence of Legislative approval of the management plan required by the State Act. [13 ELR 20543] That court recognized that the United States Secretary of the Interior has authority to determine the question of permanent administration within the meaning of the Federal Act, but should do so in light of the court's interpretation of the California Act. (Conclusion of Law, No. 7).

The secretarial issue document draws attention to Del Norte, supra, but concludes that the statutes and other materials set forth in Appendix E to the F.E.I.S. provide an adequate program of action for permanent administration within congressional intent. It does not disclose to the Secretary the California court's admonition that the federal evaluation should be conducted in the light of the court's interpretation of the California Act.

It may well be that the program of action set forth in Appendix E, which is comprehensive, is within the objectives held by Congress in its enactment of the Wild and Scenic Rivers Act. The program is more detailed and comprehensive than plans submitted and approved with respect to the applications for designation of the Upper and Lower Little Miami River, New River, and Lower St. Croix and Little Beaver Creek. In those cases, however, there was no question of the legal right to make the representation of the ability and willingness to permanently administer the rivers.

When a state court has determined that the state has no legal right to make representation because of noncompliance with state law, I think that the Secretary of the Interior needs to consider whether a necessary and relevant precedent to his exercise of discretion has been lawfully fulfilled.

The California Wild and Scenic River Act is the primary basis for consideration in addressing the adequacy of the state's commitment. The Governor's commitment must be evaluated in light of that Act and its requirements, because it is a specific statute dealing with the will of the California Legislature with respect to wild and scenic rivers.

The obligation to administer is not that of the Federal Government; it is the obligation of the state. It was the intent of Congress that the state making application for designation "agree" to permanently administer the rivers for which designation is sought. U.S. CODE CONG. & AD. NEWS, 90th Cong., 2nd Sess. 3809.

Agreement to administer is an obvious necessary precedent to any exercise of secretarial discretion, and is a relevant factor to be considered in the secretarial decision.

As pointed out in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971), this Court must consider (1) whether the Secretary acted within statutory authority; (2) whether the secretarial decision was based upon a consideration of relevant factors; and (3) whether the Secretary's action followed the necessary procedural requirements. The third of those considerations has been determined adversely to defendants. (Section III, supra.) While it is clearly within secretarial discretion to evaluate the adequacy of a state's program of action in accordance with the standards of the Act and administratively developed criteria, the Secretary must consider all relevant factors, including as in this case, the method that the state has chosen to designate its rivers. Implicit in such a relevant consideration are the statutes of the state and judgments interpreting them. While the Del Norte decision was drawn to the Secretary's attention by the Secretarial Issue Document (a part of the administrative record) its full import was not set forth, and secretarial consideration may thereby have been unduly limited.

This Court may not make the judgment which is the Secretary's, but it can assure consideration by the Secretary of all factors relevant to that judgment by ordering remand to the Secretary. Remand is appropriate in this instance.

V. Deficiencies in F.E.I.S.; Insufficient Opportunity for Comment; Substantially New and Different Material in F.E.I.S.; of Alternatives of Impact; Failure of Concurrent Preparation with Ongoing Forest Service Management Planning; Failure To Adequately Describe Impacts of Alternatives Which Were Considered; Biased and Misleading Comparison of Alternatives

None of the above issues are susceptible of resolution on motion for summary judgment.

As pointed out by intervenor State of California, I have already held, by virtue of the Order of December 1, 1980, denying application for preliminary injunction, that defendants did not act improperly in closing the comment period on the D.E.I.S. after the elapse of sixty days. The declarations of Menton and Blanchard support the notion that the comment period was adequate.

County of Josephine, supra, considered the matter of undue haste, and while that is a subject of arguable merit, I cannot say on consideration of a motion such as this that a lack of objectivity is inferable or decisive on the basis of haste. Political motivation is irrelevant unless a failure of objectivity is apparent. As stated above, motivation may be relevant to the unconscionable failure of H.C.R.S. to observe applicable rules in the executing of the required statement verification of distribution at the time that the F.E.I.S. was filed.

There is no effective evidentiary showing on the part of plaintiffs demonstrating prejudice by the use in the F.E.I.S. of representative samples or summary of comments. Cf. Save Lake Washington v. Frank, 641 F.2d 1330 [11 ELR 20645] (9th Cir. 1981). If such prejudice is capable of demonstration, it may be done at trial.

The declarations of Cheryla Karpowicz and Donald Asquita stand in stark contrast to those of Barbara Jo Talley, Charles Pike, Stephen McCalley, Stephen Kasower, Joseph Menton, Karl Haugh and Arthur Godwin with respect to the contentions that the F.E.I.S. impermissibly contained material not included within the D.E.I.S., and that by reason of that variance important issues escaped scrutiny and comment. Obviously, the modality of summary judgment is inappropriate for resolution.

It cannot be said, as a matter of law, that an F.E.I.S. is insufficient because it is not prepared concurrently with ongoing management planning by another agency, in this instance the Forest Service. National Helium Corp. v. Morton, 486 F.2d 995 [3 ELR 20660] (10th Cir. 1973).

Consideration of other reasonable alternatives, such as congressional designation, is not fatal to the F.E.I.S. on the showing now before me. The declaration of Talley indicates that in fact that alternative was thoroughly considered. Federal defendants properly rely upon Sierra Club v. Hodel, 544 F.2d 1036 [7 ELR 20008] (9th Cir. 1976).

It is not impermissible in my view, on the subject of the classification of rivers and segments thereof, to select the most restrictive classification for the purpose of evaluation of impact. Nor are the preparers of the E.F.I.S. required to weigh classification in terms of prognostication of future conditions. Citizens Against Toxic Sprays v. Bergland, 428 F. Supp. 908 [7 ELR 20325] (D. Ore. 1977). The Water Plaintiffs contend that the alternative of designating only the lower American River because its management is now fixed as recreational, while designation of the other four rivers should properly await the adoption of management plans. This is not an issue which I can resolve now.

With respect to the contentions that impact of the alternatives presented are not adequately presented, I cannot say that the F.E.I.S. reliance on the report of the California Energy Commission which is said to be impermissibly uncritical, or that the factors set forth in the declaration of Teerink with respect to the preclusion of water development require a summary resolution. These are complex issues of great moment to the future well being of California. The only appropriate vehicle of resolution is trial.

The same may be said with respect to contentions of the Del Norte Plaintiffs on the subject of timber management. The resolution of issues such as the adequacies of F.E.I.S. discussion regarding the effect of restrictive timber harvesting, water quality, fisheries and mining, is inappropriate for summary judgment. For the purposes of this aspect of the motion, I am inclined to believe that federal defendants adequately raise a triable issue of material fact when they raise the "rule of reason" standards as set forth in Trout Unlimited v. Morton, 509 F.2d 1276 [5 ELR 20151] (9th Cir. 1974). Furthermore, intervenor California suggests that extensive discussions of water needs beyond the year 2000 may be impermissibly speculative, and hence not properly includible within the scope of the F.E.I.S.

Counsel for plaintiffs shall prepare a form of judgment and submit it to counsel for defendants and counsel for intervenors for approval as to form.