Sagebrush Rebellion, Inc. v. Watt

No. 80-1121 (D. Idaho June 19, 1984)

The court holds that the Secretary of the Interior's withdrawal of lands to form the Snake River Birds of Prey Area didnot violate § 204 of the Federal Land Policy and Management Act. The notice and hearings associated with an environmental impact statement on a proposal to legislatively protect the area satisfied the notice and hearing requirements of § 204. Despite the midstream change from legislative proposal to administrative action, any failures to meet § 204 requirements were insubstantial and nonprejudicial.

Counsel for Plaintiffs
Constance Brooks
Mountain States Legal Foundation
1200 Lincoln St., Denver CO 80203
(303) 861-0244

Counsel for Defendants
Jeffrey W. Ring, Ass't U.S. Attorney
550 W. Fort St., Boise ID 83724
(208) 334-1211

Counsel for Intervenors
Scott W. Reed
P.O. Box A, Coeur D'Alene ID 83814
(208) 664-2161

[14 ELR 20679]

Taylor, J.:

Memorandum of Opinion and Order

On November 21, 1980, the then Secretary of Interior Cecil D. Andrus, by Public Land Order 5777, set aside 482,640 acres of Federal land for the protection of the "Snake River Birds of Prey Area" in Ada, Canyon, Elmore and Owyhee Counties of the State of Idaho. 45 Fed. Reg. 78688 (Nov. 26, 1980). This action was taken under and pursuant to Section 204 of the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C., Sec. 1714).

Each of the parties to this action have filed a motion for partial summary judgment, together with briefs in support of their respective motions and in opposition to the motion of the opposing party.

It is plaintiffs' contention that the Secretary did not comply with the requirements of Section 204 of the FLPMA and therefore, his withdrawal of said land was and is of no effect. Conversely, the defendants and intervenors strenuously argue that the Secretary did comply with the Act as to the notice and hearing required, and that the withdrawal of the land was and is valid. It is agreed that as to the questions presented, there is no genuine issue of material fact.

After consideration of the record, the briefs and arguments of counsel, it is the opinion of this Court that the motion of defendants and the intervenors should be granted.

The Secretary and the Bureau of Land Management (BLM) published notices of a draft environmental impact statement for a proposed Snake River Birds of Prey Conservation Area in July, 1979. 44 Fed. Reg. 39313-14 (July 5, 1979); 44 Fed. Reg. 40129 (July 9, 1979). The statement proposed designation by Congress of 515,257 acres of public land in said Ada, Canyon, Elmore and Owyhee Counties of Idaho as the Snake River Birds of Prey National Conservation Area. It also announced public hearings in the evening of August 2, 1979, in Boise and in the afternoon of August 9, 1979, in Washington, D.C.

The statement not only analysed the proposed Congressional action, but three alternatives, one of which was administrative withdrawal by the Secretary for the same objectives, but only for a 20 year period. The designated hearings were held and comments received. The comment period was extended from August 20 to September 14, 1979. 44 Fed. Reg. 46354 (Aug. 7, 1979). The final environmental impact statement was issued on February 8, 1980). This statement recommended the designation of 515,257 acres of federal land by Congress as the Snake River Birds of Prey National Conservation Area. However, one of the three alternatives considered and commented on was administrative withdrawal by the Secretary.

It appears that legislation was introduced in the Senate of the United States for the proposed purpose, but for some unknown reason no further action was taken in regard to it. Apparently, since it was getting close to the end of the legislative session of Congress and of the Administration, of which Secretary Andrus was a part, he issued Public Land Order 5777 under Alternative C of the Environmental Impact Statement on November 21, 1980, withdrawing an area of 482,640 acres for the Snake River Birds of Prey Area. 45 Fed. Reg. 78688 (Nov. 26, 1980). On that date, the Secretary submitted a detailed report of his action to Congress. Although under Section 204 of the FLPMA (43 U.S.C., Sec. 1714), Congress could have rescinded this action by the Secretary, it did not do so.

It does not appear that anything has been done by Congress or any administrative agency to alter or revoke the action of Secretary Andrus since the creation of the Area.

This Court does not believe there were errors in the administrative proceedings, but if there were they were insubstantial, did not prejudice anyone, and do not require setting aside the proceedings. 5 U.S.C., Sec. 706; County of Del Norte v. United States, ,F.2d [14 ELR 20522] (9th Cir., May 11, 1984).

It seems clear from the record that all interested persons understood from the notice given and the hearings held that a large area of public lands were going to be set aside or withdrawn, either by action of the Congress or by the Secretary of Interior, as the "Snake River Birds of Prey National Conservation Area." Even though, as argued by plaintiffs, the procedure followed by the Secretary might have been more precise, there is nothing in the record showing that plaintiffs, or any of them, were prejudiced by what was done.

Accordingly, it is ORDERED that the motions of defendants and of the intervenors be, and the same hereby are, GRANTED, and it is FURTHER ORDERED that the motion of plaintiffs be, and the same hereby is, DENIED.