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13 ELR 20994 | Environmental Law Reporter | copyright © 1983 | All rights reserved Jackson Hole Alliance for Responsible Planning v. WattNos. C82-0409-B, -0411-B, -0412-B (D. Wyo. September 8, 1983)In challenges to oil and gas drilling permits and leasing practices on federal lands around Little Granite Creek Canyon, Wyoming, the court dismisses plaintiffs' common law and constitutional claims, leaving for trial claims based on the Mineral Lands Leasing Act (MLA), Endangered Species Act (ESA), and National Environmental Policy Act. The court first dismisses public trust claims against federal defendants, ruling that their duty to protect the national parks is purely statutory. The court then dismisses federal constitutional claims, finding no state action for a Fourteenth Amendment claim, no personal rights or state powers protected under the Ninth and Tenth Amendments, no deprivation of property without due process, and no taking of property requiring compensation. Alternatively, the court notes that the constitutional claims against individual defendants could be dismissed, since as federal officers they have qualified tort immunity for discretionary acts. The court then dismisses state constitutional claims, noting that many of the claims fail for the same reasons that the federal claims do, andall of the claims fail because the state constitution does not limit the powers of the federal government. The court dismisses nuisance claims because plaintiffs have failed to allege the property interest and present injury necessary to support a private nuisance claim or the special injury necessary to support a public nuisance claim. Alternatively, preemption prevents state tort law from limiting acts done under federal authority, and sovereign immunity bars tort claims against federal officers acting within the scope of their authority. Finally, the court rules that plaintiffs' claim that they are guardians of the affected wildlife, plants, and inanimate objects does not raise a cause of action different from those dismissed above. The court declines to dismiss for lack of standing plaintiffs' claims under the Mineral Lands Leasing Act, holding that although the MLA was intended to encourage mineral development, environmental concerns are also within the zone of interest protected by the Act. Further, the court holds that the MLA's 90-day statute of limitations does not bar plaintioffs' claims, because plaintiffs filed within 90 days of the Interior Board of Land Appeals' ruling on the challenged actions. Finally, the court declines to dimiss Endangered Species Act claims for failure to give the statutory 60-day notice of alleged violation required for citizen suits under § 11g of the ESA. The government now has effective notice of the allegations. Also, notice is merely a prerequisite for claiming standing under the ESA, and plaintiffs have alternative bases for claiming standing. Counsel for Plaintiffs Karin P. Sheldon, Alan B. Minier Steve Jones, Ass't Attorney General Counsel for Defendants Richard A. Stacy, U.S. Attorney; Francis Leland Pico John E. Lindskold Brimmer, J.: This matter came on for hearing on July 11, 1983 before the Honorable Clarence A. Brimmer, United States District Judge for the District of Wyoming on Defendant Getty Oil Company's Motions for Partial Summary Judgment, and Appeal from the Magistrate's Order Compelling Production of Documents, and on the Motions for Partial Summary Judgment of the Defendant officers and agencies of the Federal government. Counsel present were Robert P. Schuster, Esq., and G. L. Spence, Esq., for the Plaintiffs in the Jackson Hole Alliance case; Karin P. Sheldon, Esq., and Alan B. Minier, Esq., for the Plaintiffs in the Sierra Club case; Steve Jones, Esq., Assistant Attorney General for the State of Wyoming, for the Plaintiffs in the State of Wyoming case; William E. Murane, Esq., Marilyn S. Kite, Esq., and Susan L. Smith,Esq., for Defendant Getty Oil Company; Richard S. Stacy, Esq., U.S. Attorney for the District of Wyoming, Francis Leland Pico, Ewq., Assistant U.S. Attorney for the District of Wyoming, and John E. Lindskold, Esq., attorney for the Department of Justice, Land and Natural Resources Division, for the Defendant Federal agencies and officers. The Court having reviewed the pleadings herein, having considered the arguments of counsel, and being [13 ELR 20995] otherwise advised on the premises, FINDS and ORDERS as follows: This action involves three consolidated cases in which the Jackson Hole Alliance for Responsible Planning (Jackson Hole Alliance), a local citizens' group, the State of Wyoming, Wyoming Governor Ed Herschler, the Sierra Club, the Wilderness Society, and various individual Plaintiffs sued the United States Department of Interior (DOI), the Secretary of Interior James G. Watt, and Donald P. Hodel, as Undersecretary of Interior, and various subordinate federal officials (the Federal Defendants), and Getty Oil Company. These actions all arise out of decisions of DOI which, first, approved an Application for Permit to Drill (APD) allowing exploratory oil and gas drilling to be conducted in the Little Granite Creek Canyon area in extreme Northwestern Wyoming under Lease W-20472; second, approved consolidation of Lease W-20472 into the Bear Thrust Unit Agreement, which then pooled twenty-five leases covering properties in the vicinity of the Little Granite Creek Canyon area; and, third, granted a request for suspension of operations and production on Lease W-20472, including suspension of the lease term and rental obligations, pending preparation of an Environmental Impact Statement and eventual approval or denial of the APD, effectively extending the term of such lease beyond its original term. The primary trust of these cases is the claim that those decisions of DOI were in violation of the terms of the Mineral Lands Leasing Act, 30 U.S.C. Section 1 et seq., (MLA), of the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq., (NEPA), and the Endangered Species Conservation Act, 16 U.S.C. Section 668aa et seq., (ESA), seeking declaratory and injunctive relief. In effect, these actions are primarily an appeal taken from agency action which would be subject to the procedures and standards set forth in the Federal Administrative Procedures Act, 5 U.S.C. Section 701 et seq. The Jackson Hole Alliance Plaintiffs in their First Claim for Relief assert that Defendants violated the Administrative Procedures Act and that the decision of the Minerals Management Service was arbitrary and capricious. Their Second Claim for Relief alleges that Defendants failed to consider or require an environmental impact statement (EIS), that the draft EIS and final EIS were inadequate, and that Defendants failed to consider a "no action" alternative or other alternatives to the granting of the APD. In the Third Claim for Relief those Plaintiffs allege that Defendants incorrectly decided that the Interior Department lacked authority to deny the APD, while the Fourth Claim for Relief alleges that Defendants failed to perform a statutory duty to consult with Federal or State agencies on whether this action would threaten endangered species, failed to make a biological assessment concerning endangered or threatened species, and failed to comply with the Endangered Species Act. Their Fifth Claim for Relief is that the Bear Thrust Unit Agreement was invalidly executed, and the Sixth Claim for Relief is that the APD was granted after expiration of the lease, because the suspension of the lease terms was not properly granted. The Sierra Club and the Wilderness Society in their separate actions against the Secretary of the Interior, Getty Oil Company, and the Director of Minerals Management Service and the Acting District Supervisor, also referred to as the Federal Defendants, also claim first that the Minerals Management Service decision is arbitrary and capricious; second, that the Environmental Impact Statement is insufficient and failed to consider alternatives so that the provisions of the NEPA were not complied with; third, that the EIS did not contain sufficient information; fourth, that the Interior Department's conclusion that it lacked authority to deny the APD was incorrect; and, fifth, that the approval of the APD by the Interior Department violated the terms of the lease. Getty has moved to dismiss the first, fourth and fifth claims on the ground of lack of standing. The Federal Defendants have joined Getty in that motion. In its separate suit against the Department of Interior, Secretary Watt, Donald P. Hodel, as Acting Secretary of the Interior, Robert Chase as District Supervisor, and Harold J. Doley as Director of the Minerals Management Service and Getty Oil Company, as Defendants, the State of Wyoming and Governor Herschler as Plaintiffs have likewise asserted: First, that the Minerals Management Service decision was based upon an incorrect legal opinion; Second, that the Draft environmental impact statement discarded viable alternatives and that consequently the provisions of NEPA had not been complied with; Third, that the Administrative Record supports approval of access to the oilfield by helicopter but that that mode of access was not selected; Fourth, that the provisions of the lease would be violated if Getty is allowed to drill; and, Fifth, that the EIS is inadequate. Getty and the Federal Defendants have moved to dismiss the first three claims on ground of lack of standing. However, in addition to such administrative appeal claims, the Plaintiffs in the Jackson Hole Alliance presented case in Claims for Relief Seven through Twelve which sound in tort and seek compensatory and punitive damages, alleging a breach of public trust (Claim #7), tortious breach of Federal Constitutional rights (Claim #8), and tortious violations of State Constitutional Rights (Claim #9), a private nuisance action (Claim #10), public nuisance action (Claim #11), and finally, an action asserting claims of guardianship on behalf of the wildlife which exists in the Little Granite Creek Canyon area (Claim #12). The Plaintiffs in Jackson Hole Alliance conceded in their response to the Defendants' Motions for Summary Judgment that they do not seek damages in their first six claims but ask declaratory and injunctive relief. The Federal Defendants, and Defendant Getty Oil Company, in their Motions for Partial Summary Judgment did not challenge the Jackson Hole Alliance's Second Claim for Relief, but moved to dismiss the Jackson Hole Alliance's damage claims, basically seeking to reduce this action to a review on the administrative record under 5 U.S.C. Section 701 et seq. Getty also seeks dismissal of all of the claims made by the Plaintiffs in these consolidated actions under the Mineral Leasing Act, alleging that the Plaintiffs herein lack standing to challenge agency action thereunder, or alternatively seeks dismissal of those claims arising under the MLA pertaining to DOI's approval of the Bear Thrust Unit Agreement, and suspension of Lease W-20472, alleging such claims are barred by the ninety day statute of limitations contained in 30 U.S.C. Section 226-2. Getty also seeks dismissal of the Plaintiffs' claims arising under the Endangered Species Act (Claim #4), alleging noncompliance with 16 U.S.C. Section 1540(g)(2)(A), which requires that sixty days' prior notice be given to DOI before initiation of a citizen's suit under 16 U.S.C. Section 1540(g)(1)(A). Getty also appeals from an Order of U.S. Magistrate William C. Beaman compelling production of documents. The Court ordered that all discovery in this matter be suspended pending an Order by the Court on the Defendants' Motions for Summary Judgment. The Court will deal with each of these matters separately. I. Jackson Hole Alliance's Damages Claims. In its seventh claim, Jackson Hole Alliance alleges that the Federal Defendants breached a fiduciary duty owed by them to Plaintiffs' members under a public trust imposed upon them by their authority to regulate and control our National Parks System which requires them to act in such a way as will preserve their pristine beauty. In asserting this claim the Jackson Hole Alliance relies primarily upon a series of cases decided in the United States District Court for the Northern District of California, which have come to be called the "Redwood cases." See Sierra Club v. DOI, 376 F. Supp. 90, [4 ELR 20444] (N.D. Cal., 1974) (Redwood I), Supp. 398 F. Supp. 284, [5 ELR 20514] (N.D. Cal., 1975) (Redwood II), Supp. 424 F. Supp. 172 [6 ELR 20605] (N.D. Cal., 1976) (Redwood III), where the District Court held that DOI had a fidiciary duty to use the powers vested in the Secretary of Interior in such a way as would preserve the National Parks System, at least whenever wuch action was reasonably necessary for protection of such parks. 376 F. Supp. at 95-96. The "public trust" doctrine of the Redwood cases has been underimined by subsequent decisions. In Sierra Club v. Andrus, 487 F. Supp. 443, 449 [10 ELR 20555] (D.D.C., 1980) the Court refused to apply the public trust doctrine, expressly stating that there are no trust duties imposed upon the Secretary of Interior distinguishable from those duties imposed by relevant statutory [13 ELR 20996] and regulatory provisions. The Court cited SENATE REPORT 95-528, 95th Cong., 1st Sess. at pp. 7-8, 14 (Oct. 21, 1977), as indicating that members of the Congress were concerned that the "public trust" doctrine set forth in the Redwood cases blurred the statutory duties of park administrators, and that they hoped that the Courts would refocus their attention on the provisions of relevant statutes in resolving private and public disputes affecting the National Parks System. Even Courts within the District in which the Redwood cases were decided have subsequently sought to limit the scope of such decision. See Friends of Yosemite v. Frizzell, 420 F. Supp. 390, 393 [7 ELR 20087] (N.D. Cal., 1976). The Court believes that the Congress by enacting the MLA, the ESA, and NEPA has balanced competing interests affected by such provisions, and has established its legislative policy in these matters. Executive officials seeking to administer these enactments need to have objective, readily ascertainable guidelines such as are contained within the enactments, and relevant legislative history. The Courts should not confuse these matters by seeking to vary or add to such provisions under a general public trust doctrine. Jackson Hole Alliance's seventh claim should be dismissed. Federal Constitutional Claims. In its eighth claim, Jackson Hole Alliance alleges that the action taken by the Federal Defendants interfered with various Federal Constitutional rights of its members. More specifically, Jackson Hole Alliance alleges that such Defendants' actions violated the Fifth Amendment Due Process, and Just Compensation Clauses, the Ninth and Tenth Amendments, and the Fourteenth Amendment Due Process and Equal Protection Clauses. Each ground shall be dealt with separately. Concerning its Fourteenth Amendment claims, Jackson Hole Alliance failed to allege State action such as is prohibited by the Fourteenth Amendment. All of the Defendants, other than Getty Oil Company are federal agencies or officials and as such do not fall within the provisions contained in the Fourteenth Amendment. E.D.F. v. Corps of Engineers, 325 F. Supp. 728, 738 [1 ELR 20130] (E.D. Ark., 1971). Getty Oil Company as a private corporation, is not an agency of any state, and thus Jackson Hole Alliance's Fourteenth Amendment claims are without merit. Furthermore, even if Jackson Hole Alliance had adequately alleged state action, in the context of this case where no suspect classifications are used, and no fundamental rights are affected, the Court should defer to reasonable Federal statutory and regulatory provisions. Village of Belle Terre v. Boraas, 416 U.S. 1 [4 ELR 20302] (1977); Moore v. East Cleveland, 431 U.S. 494 (1977); Goldblatt v. Hempstead, 369 U.S. 590 (1962). The Court believes that the Jackson Hole Alliance's complaint fails to set forth an adequate basis for its Fourteenth Amendment claims. Jackson Hole Alliance's Ninth and Tenth Amendment claims are similarly unfounded. Jackson Hole Alliance has not alleged that any recognized right to privacy will be interfered with by the administrative action challenged in this suit. See Tanner v. Armco Steel Corp., 340 F. Supp. 532 [2 ELR 20246] (S.D. Tex., 1972). Neither has Jackson Hole Alliance alleged that such action amounts to regulation of states as states, such as would fall within the narrow restrictions of the Tenth Amendment. See Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 287-288 [11 ELR 20569] (1981).Finally, any claim by Jackson Hole Alliance that the action taken by the Federal Defendants usurps the traditional role of the sovereign states in our Federal scheme of government must fail since the action taken herein involves federally owned lands over which the Federal government has plenary authority under the Property Clause of the United States Constitution, Art. IV, Cl. 3. See Kleppe v. New Mexico, 426 U.S. 529, 539 [6 ELR 20545] (1976). Jackson Hole Alliance's Fifth Amendment Due Process claims are also insufficient.In order to substantiate such claims Jacksaon Hole Alliance must first show that, as a result of the challenged agency action its members have been deprived of "life," "liberty" or "property." Board of Regents v. Roth, 408 U.S. 564 (1972). Generally, Jackson Hole Alliance has alleged that its members have lost the right to have the Little Granite Creek Canyon area remain primitive, and thus to preserve its natural pristine beauty. Assuming, for the sake of discussion, that such beauty would be lost due to drilling operations in the area, generalized environmental interests do not constitute "property" or "liberty" interests such as are protected by the Fifth Amendment's Due Process Clause. Izaak Walton League of America v. Marsh, 655 F.2d 346 [11 ELR 20707] (D.C. Cir., 1981), cert. den. sub nom. Atchison, T. & S.F.R. Co. v. Marsh, 454 U.S. 1092 (1981). The same rule applies even though the Plaintiff has alleged financial injury which would flow from the alleged environmental injury. Hagedorn v. Union Carbide Corp., 363 F. Supp. 1061, 1065 (N.D. W. Va., 1973); Tanner v. Armco Steel Corp., 340 F. Supp. 532 [2 ELR 20246] (S.D. Tex., 1972). Jackson Hole Alliance alleges that various of its members have previously obtained forest service outfitter guide permits and grazing permits, and that rights accruing thereunder will be interfered with due to the drilling operations by Defendant Getty Oil. Basically this is an allegation that financial injury would flow from the environmental impact caused by the drilling operations in the Little Grantie Creek Canyon area. It is doubtful that such permits, although valuable to their holders, confer such an an entitlement as would amount to a "property" interest for due process purposes since they are subject to revocation or modification at will by the issuing Federal agency. Action v. U.S., 401 F.2d 896 (9th Cir., 1968), cert. den. sub nom. clifton v. U.S., 393 U.S. 1121 (1969); Pankey Land and Cattle Co. v. Hardin, 427 F.2d 43 (10th Cir., 1970); See 36 C.F.R. Sections 222.3(b), 222.4(a)(1) and (7), 251.55(c) (1982). Thus Jackson Hole Alliance has failed to substantiate such an interest as would invoke the Due Process Clause on its behalf. These views concerning property interests under the Due Process Clause are equally applicable under the Just Compensation Clause. If Jackson Hole Alliance's members lack an adequate property interest to invoke the Due Process Clause, a fortiori, they lack an adequate property interest to invoke the Just Compensation Clause. See Action v. U.S., supra; Pankey Land and Cattle Co. v. Hardin, supra. Furthermore, even if Jackson Hole Alliance had adequately alleged a property interest, such interest would be only incidentally affected by the actions of the Federal Defendants and as such Jackson Hole Alliance has failed to show any "taking" such as would invoke the Just Compensation Clause. See Goldblatt v. Hempstead, supra; Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955, 958 (6th Cir., 1970); United States v. Causby, 328 U.S. 256 (1946). Finally, without deciding the issue, the United States Supreme Court recently held in Bush v. Lucas, Slip Opinion No. 81-469 (U.S. Sup. Crt., June 13, 1983) that where Congress provides a remedial measure for alleged violations of Constitutional Rights of private individuals, it would be inappropriate for the Court to supplement that scheme with a new non-statutory damage remedy under U.S.C. Section 1331 (1976). The Tucker Act, 28 U.S.C. Section 1346(a)(2), and 1491(a)(1) (1982 Supp.), while certainly less comprehensive than the provisions involved in Bush v. Lucas, does create jurisdiction in Federal District Courts to hear just compensation cases, and as such may counsel against providing Jackson Hole Alliance with a separate remedy under 28 U.S.C. Section 1331 and Bivens v. Six Unknown Named Agents of the Federal Bur. of Nar., 403 U.S. 388 (1971). Finally, the individual Defendants herein are afforded a qualified immunity from tort actions for discretionary acts within the scope of their authority. Butz v. Economou, 438 U.S. 478 (1978); Barr v. Matteo, 360 U.S. 564 (1959); Procunier v. Navarette, 434 U.S. 555 (1977). Jackson Hole Alliance has failed to allege any matter indicating that these individual Defendants acted in bad faith, and therefore they are immune from personal liability under Jackson Hole Alliance's Federal constitutional claims. Therefore, Jackson Hole Alliance's Federal constitutional claims should be dismissed. Jackson Hole Alliance alleges in its ninth claim that the Defendants interfered with various rights of its members derived from the provisions of the Wyoming State Constitution, Art. 1, Sections 7-8, 31, 33-36. Basically, these provisions prohibit State law makers from acting arbitrarily in matters affecting life, liberty or property, require access to State courts be preserved, requires [13 ELR 20997] the State, in controlling water resources, to equally guard the interests of all, require just compensation be awarded whenever private property is taken or damaged by the State, requires all State laws of a general nature have uniform applicability, prohibits State laws with an ex post facto effect, or which impair obligations under contracts, and reserves those powers not delegated to the State to the people. Many of these provisions parallel provisions contained in the United States Constitution discussed above. For example, Art. 1, Section 7 requires "life," "liberty," or "property" be affected by state action, and Article 1, Section 33 requires a taking or damaging of a "property" interest. Jackson Hole Alliance's allegations in these matters are insufficient for the reasons discussed above concerning parallel Federal orovisions. The other provisions cited seem only remotely connected to the factual context of this case, and thus appear to be frivolous. More importantly, though, all of the provisions cited were designed and intended to limit actions of agencies and officials of the State of Wyoming; they do not apply to the Federal Defendants herein, none of which are officers or agencies of the Wyoming State government. Even if such provisions did apply to such Defendants, State Constitutional provisions which prohibit, preclude, or otherwise substantially inhibit effectuation of otherwise valid regulatory activities of the Federal government, its agencies or officials, would be subject to preemption under the Supremacy Clause of the United States Constitution, Art. VI, Cl. 2. Gibbons v. Ogden, 22 U.S. 1 (1824); Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Jones v. Roth Packing Co., 430 U.S. 519, 540-541 (1977); Kirkpatrick Oil and Gas Co. v. United States, 675 F.2d 1122 (10th Cir., 1982). Thus, Jackson Hole Alliance's State constitutional claims should be dismissed. Jackson Hole Alliance in its Tenth and Eleventh Claims alleges that the Defendant Getty's drilling operations in the Little Granite Creek Canyon area will constitute a private, and/or a public nuisance in that it will interfere with the rights of its members, and of the general public, to use and enjoy the Little Granite Creek Canyon area for recreational purposes. In order to substantiate these claims, Jackson Hole Alliance must show that its members (a) had a "property" interest, (b) which the Defendant either intentionally, or negligently interfered with, (c) in such a way as has resulted in injury to their property interest. Timmons v. Reed, 569 P.2d 112, 123 (Wyo., 1977); Knight v. City of Riverton, 259 P.2d 748, 751-752 (Wyo., 1953); Sunray Oil Co. v. Sharpe, 209 F.2d 937, 939 (5th Cir., 1954). In addition, in order to show standing to assert its public nuisance claim, Jackson Hole Alliance must show that its members have suffered some special injury as a result of the challenged conduct such as is distinguishable from the injury suffered by the public generally. Knight v. City of Riverton, supra at 751. Jackson Hole Alliance's allegations concerning its nuisance claims are deficient for several reasons. The nuisance doctrine is designed to prevent interference with a person's property rights. Sunray Oil Co. v. Sharpe, supra, 939. Here, Jackson Hole Alliance's members as owners of mere governmental permits do not have a property interest in the Little Granite Creek Canyon area. Jackson Hole Alliance has not alleged activities by the Defendants that would affect the property interest of its members in such a way as would amount to a nuisance. See 58 AM. JUR. 2d, Nuisances, Sections 41, 42, 606-607. Furthermore, even if Jackson Hole Alliance had adequately alleged interference with such property rights would or may flow from the drilling activities, a nuisance action generally is not ripe until such injury has in fact been sustained, and an anticipation of injury is not adequate to support a nuisance action. Knight v. City of Riverton, supra, 752; Sunray Oil Co. v. Sharpe, supra, 739. Finally, Jackson Hole Alliance has not alleged that any special injury would be suffered by its members which would not be shared by the public at large; thus, it does not have standing to assert its public nuisance claims. See Knight v. City of Riverton, supra. Even if Jackson Hole Alliance's nuisance claims were well-founded, the preemption discussion concerning its State constitutional claims is equally applicable to State common law tort actions which would prevent, or effectively preclude, or greatly burden, otherwise valid activities of Federal agencies. Where a Federal agency issues a permit in accordance with authority vested in it by the Congress, any activities within the valid scope of the permit are immunized from State nuisance claims, just as would be conduct permitted by State zoning regulations. Potomac River Ass'n, Inc. v. Lundberg Md. Sea Sch., Inc., 402 F. Supp. 344, 359 [5 ELR 20388] (D. Md., 1975). Where the Congress has left a matter to the discretion of a Federal agency,the Courts should not undermine Congress' policies by allowing tort liability for conduct within the permissible scope of such agency's regulatory authority. San Diego Building Trades Council v. Garmon, 359 U.S. 237 (1958). Finally, the individual Defendants are absolutely immune from liability under State common law tort liability doctrines for conduct within the scope of their authority, and thus cannot be held to be personally liable to Jackson Hole Alliance under its nuisance claims. Butz v. Economou, 438 U.S. 478, 522 (1978, Rehnquist, J. Opinion); Barr v. Matteo, 360 U.S. 564 (1959). Jackson Hole Alliance's nuisance claims must be dismissed. Jackson Hole Alliance's remedy in this matter is to challenge the decisions of the Federal agencies as an administrative appeal under the provisions of the Administrative Procedures Act, 5 U.S.C. Section 701 et seq., rather than by attempted imposition of tort liability under a nuisance doctrine. Finally, Jackson Hole Alliance in its twelfth claim seeks to sue on behalf of the wildlife, plants and inanimate objects located within the Little Granite Creek Canyon area which allegedly would be adversely affected by the drilling operations by Getty Oil Company. Jackson Hole Alliance concedes that there is no authority to support its right to assert such a claim, but seeks to analogize this situation to suits by inanimate corporate entities such as are permitted under the laws of all states. No conduct or injury is alleged in this claim which has not been addressed within Jackson Hole Alliance's first eleven claims. The Court believes that this claim is frivolous and should be dismissed. II. Getty Oil Company's Separate Challenges. As noted above, Getty Oil Company, in its Motion for Partial Summary Judgment also seeks dismissal of all claims of the Plaintiffs in these consolidated cases arising under the MLA, and the ESA, effectively leaving the Court with only the NEPA challenges before it. Getty Oil Company concedes, for purposes of this motion only, that the Plaintiffs have suffered injury in fact which could be redressed should the Court grant the relief sought by the Plaintiffs, in order to meet the "case and controversy" requirements of Article III of the United States Constitution. Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59 [8 ELR 20545] (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977); Warth v. Seldin, 422 U.S. 490, 501 (1975); Baker v. Carr, 369 U.S. 186, 204 (1962). Instead, Getty argues that the MLA was enacted to encourage mineral development on Federal lands, rather than to protect such lands from environmental harm, and concludes that the Plaintiffs' environmental concerns are not arguably within the zone of interests protected by the MLA. See Ass'n of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150 (1970). The principal purpose of Congress in enacting the MLA was to encourage mineral development rather than to protect the environment. Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383 [11 ELR 20044] (D. Wyo., 1980); Learned v. Watt, 528 F. Supp. 980 (D. Wyo., 1981); Harvey v. Udall, 384 F.2d 883 (10th Cir., 1967); California Company v. Udall, 296 F.2d 384 (D.C. Cir., 1961). But, while mineral development was Congress' primary concern in enacting the MLA, Congress was also balancing the competing environmental concerns, and required DOI to consider environmental questions as at least one factor in its administration of the permit provisions of the MLA. Learned v. Watt, supra; Mountain States Legal Foundation v. Andrus, supra, 393, 394. The Court concludes that the Plaintiffs herein [13 ELR 20998] have adequately alleged standing within the standards set forth by the United States Supreme Court in Duke Power Co. v. Carolina Env. Study Group, supra, and Ass'n of Data Processing Services Org., Inc. v. Camp, supra. Ninety Day Statute of Limitations in the MLA. Getty alternatively argues that the Plaintiffs' claims pertaining to DOI approval of the Bear Thrust Unit Agreement, and granting of the lease suspension on W-20472 are barred by the ninety day statute of limitations contained in 30 U.S.C. Section 226-2. Such provision requires that any action contesting a decision by the Secretary of Interior involving an oil and gas lease must be commenced within ninety days after the final decision of the Secretary of Interior relating to such matter. Getty asks the Court to treat the decision to approve the APD separately from the approval of the unit agreement and the lease suspension. However, these matters were integrally related to each other and should be treated as a single transaction by the Defendants rather than as separate transactions. These decisions were not "final decisions" of the Secretary of Interior until the IBLA issued its decision affirming the decisions of the DOI Oil and Gas Supervisors for the Northern Rocky Mountain Area on July 22, 1982. Geosearch, Inc. v. Andrus, 494 F. Supp. 978 (D. Wyo., 1980). Jackson Hole Alliance filed its complaint on October 7, 1982, and the other consolidated actions were both filed on October 15, 1982, all three being filed within the ninety day period. Thus we must conclude that these actions are not barred by such statute of limitations. Sixty Day Notice Requirement in ESA. Finally, Getty alleges that the Plaintiffs' ESA claims are barred since none of the Plaintiffs herein provided the Secretary of Interior with notice of the alleged violations at least sixty days prior to commencement of these actions as required by 16 U.S.C. Section 1540. However, this notice requirement is not akin to a statute of limitations, and has been liberally construed by the courts in effectuating its purpose of providing the Secretary with notice of alleged violations in order to enable resolution of such matters outside of the Courts, or at least to enable the Secretary to prepare a response to the Plaintiffs' allegations before an application for a temporary restraining order or a preliminary injunction has been filed. National Wildlife Federation v. Coleman, 400 F. Supp. 705 [5 ELR 20566] (S.D. Miss., 1975), rev'd on other grounds, 529 F.2d 359 (5th Cir.), cert. den. sub nom. Boteler v. National Wildlife Federation, 429 U.S. 979 (1976); Sierra Club v. Froehlke, 534 F.2d 1289 [6 ELR 20448] (8th Cir., 1976). It would be an exercise of judicial futility to dismiss the Plaintiffs' ESA claims on this basis, only to have them provide the DOI with sixty days' prior notice and then refile their complaints. There is no doubt that the DOI has been adequately notified of this action, and has been able to prepare to respond to the allegations of the Plaintiffs. Furthermore, the sixty day notice is only applicable to the automatic standing provisions of 16 U.S.C. Section 1540, and does not affect the Plaintiffs' standing to challenge the Defendants' actions under the traditional guidelines for standing discussed above, and codified in 5 U.S.C. Section 706. See National Wildlife Federation v. Coleman, supra. The Plaintiffs clearly have standing to assert their ESA claims under such standards, apart from any of the provisions contained in 16 U.S.C. Section 1540. This action must be decided by the Court as an administrative appeal upon the agency record under the standards of the Administrative Procedures Act rather than by trial de novo. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 408-409, 414-416 [1 ELR 20110] (1971); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 [10 ELR 20079] (1980); Harvey v. Udall, 384 F.2d 883 (10th Cir., 1967). Causes of action of the Plaintiffs which are not in the nature of administrative appeals must be dismissed. However, there is authority which allows the parties, to a limited extent, to supplement the administrative record with evidence and/or testimony relevant to the question whether or not the Defendants complied with applicable provisions of the MLA, the ESA and NEPA, and the basis of the Defendants' approval of the Bear Thrust Unit Agreement, the lease suspension on W-20472, and the APD. Citizens to Preserve Overton Park, Inc. v. Volpe, supra; Camp v. Pitts, 411 U.S. 138 (1973).On that account the Court will continue the trial setting in this matter, and schedule a supplemental pretrial conference at which discovery plans must be disclosed and discovery scheduling will be undertaken, and any other pending motions will be heard. ORDERED that the Motions for Partial Summary Judgment of the Defendants herein, to the extent that they pertain to Plaintiff Jackson Hole Alliance's Claims 7, 8, 9, 10, 11, and 12 be, and the same hereby are, granted, and Jackson Hole Alliance's Claims 7, 8, 9, 10, 11, and 12 are hereby dismissed with prejudice. It is further ORDERED that Defendant Getty Oil Company's Motion for Partial Summary Judgment, to the extent that it relates to the Plaintiffs' claims under the Mineral Lands Leasing Act, and the Endangered Species Conservation Act, Jackson Hole Alliance's Claims 1, 3, 4, 5, and 6, be, and the same hereby is, denied. It is further ORDERED that Getty Oil Company's motion for partial summary judgment upon the first, fourth and fifth claims of the Sierra Club and Wilderness Society be denied; and that its motion for partial summary judgment on the State's first, third and fourth claims be denied; and that the Cross-Motion of the Sierra Club and The Wilderness Society for partial summary judgment be denied. It is further ORDERED that the trial setting of September 6, 1983 be stricken, and that a supplemental pretrial conference is hereby scheduled for October 11, 1983 at 10:30 A.M. in Cheyenne, Wyoming. Counsel for each party shall submit to the Court in a pretrial memorandum the position of the party with respect to (1) the appropriate scope of the judicial review in this case, based on the administrative record filed with the Court, (2) the specific extent, if at all, to which such party desires to supplement the administrative record with testimony and/or exhibits specifying the witness or exhibit and the testimony or evidence to be adduced, and (3) the specific plan, if any, of the party for discovery prior to trial. 13 ELR 20994 | Environmental Law Reporter | copyright © 1983 | All rights reserved |