Northern Alaska Environmental Center v. Hodel

No. J85-009 CIV (D. Alaska December 6, 1985)

The court holds that the National Park Service must prepare cumulative environmental impact statementsr (EISs) on the granting of individual mining permits in certain national parks in Alaska and extends an earlier preliminary injunction on mining operations, 15 ELR 21048, to include Denali National Park and Preserve. The court first rules that it may require an agency to conduct a cumulative EIS even when environmental assessments (EAs) for the individual mining permits have not been prepared. Although the question of whether the agency should be allowed to make the initial EIS determination is one of exhaustion of administrative remedies, the court has the discretion not to remand the issue when the remand would be futile or a waste of administrative resources. It this case, the court agrees with plaintiffs that the approval of a number of individual mining permits within the parks may have a cumulative significant environmental impact even if the separate actions, standing alone, do not. Plaintiff is only required to show that a proposed action "may" have significant environmental effects. Based on the evidence, the court finds that the Park Service would have no reasonable basis for concluding that the mining in the named parks does not require an EIS. Moreover, the Park Service's long-term failure to prepare EAs is an additional reason for requiring it to prepare an EIS at this time.

The court declines to modify its injunction requiring the preparation of EISs on the cumulative environmental effects of mining in Wrangall-St. Elias National Park and Preserve and Yukon-Charley National Preserve, and extends it to include Denali National Park and Preserve. In response to an argument that the order is too broad, the court suggests that if individual mining operations do not contribute to cumulative environmental impacts within a park, the government or the miner may move to modify the injunction accordingly.

Counsel for Plaintiffs
Lauri J. Adams
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants
Michael R. Spaan, U.S. Attorney
Federal Bldg. & U.S. Cthse., 701 C St., Rm. C-252, Mail Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Defendants-Intervenors
Thomas R. Wickwire
3700 University Ave. S., Fairbanks AK 99701
(907) 452-4848

[16 ELR 20244]

Von der Heydt, J.:

Memorandum and Order

THIS CAUSE comes before the court on defendants' motion for reconsideration and amendment and plaintiffs' motion to extend preliminary injunction. In their motion, defendants challenge the propriety of this court's prior decision requiring that the National Park Service prepare Environmental Impact Statements (EIS's) discussing the cumulative impact of mining on Wrangell-St. Elias National Park and Yukon-Charley Rivers National Preserve. Plaintiffs seek to extend the preliminary injunction to require a cumulative EIS for Denali National Park and Preserve.

The primary issue before the court is whether the proper remedy for defendants' violation of the National Environmental Policy Act (NEPA) is to require preparation of cumulative EIS's. Defendants argue that such a remedy is premature given that the Park Service has not had the opportunity to initially determine whether the granting of mining permits is a "major federal action significantly affecting the human environment." According to the government, the agency's decision is not yet ripe for review, for the reason that the agency, to date, has not prepared any Environmental Assessments (EA) for the mining permits. These EA's, the government argues, are a prerequisite to determining whether to prepare an EIS, and until the EA's for the mining permits are completed, the Park Service is not required to decide whether an EIS is necessary.¹

The initial determination whether to prepare an EIS is generally to be made by the agency. See, e.g., Sierra Club v. United States Department of Transportation, 753 F.2d 120, 126 (D.C. Cir. 1985). The issue before this court, however, is whether it has discretion to require an agency to prepare an EIS when the agency's action is clearly a major federal action requiring an EIS. The court has found little authority directly addressing this issue.²

Whether or not the court should allow an agency to make the initial EIS determination is a question of exhaustion of administrative remedies. "Sound discretion bids a court stay its hand upon petition by the [agency] where there is reason to believe that further agency consideration may resolve the dispute and obviate the need for further judicial action," NRDC v. Morton, 388 F. Supp. 829, 835 [5 ELR 20337] (D.D.C. 1974), or where the decision is one within the particular competence of the agency. The court, however, has the discretion not to remand the issue when any remand would be futile or a waste of administrative resources. See id. at 835-36; see also Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985) (no remand required when remand would delay remedy); Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499-501 (9th Cir. 1980) (no remand required where pursuit of administrative remedies would be futile gesture). The major consideration in determining whether to remand the EIS decision to the agency is whether the agency could have any reasonable basis for deciding not to prepare an EIS. See Scientists Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1094-95 (D.C. Cir. 1973). If there is no reasonable basis for not preparing an EIS, remand to the agency would be futile and exhaustion is not require.

In the instant case, the actions that may require EIS preparation are Park Service decisions to approve individual mining plans. Kleppe v. Sierra Club, 427 U.S. 390, 399-401 [6 ELR 20532] (1976). The approval of a number of plans within a park does not constitute an action separate and apart from the individual plan approvals. See id. Plaintiffs have not argued that under NEPA any of the individual plan approvals are major actions requiring an EIS. They do assert, however, that the mining plans must be considered in light of one another, and that cumulatively the impact significantly affects the human environment.

The court agrees that an EIS must be prepared when a number or related actions cumulatively may have a significant environmental impact, even if the separate actions, standing alone, do not. 40 C.F.R. § 1508.27(b)(7) (1985) (A significant effect on the environment exists "if it is reasonable to anticipate a cumulatively significant impact on the environment" from related actions with individually insignificant impacts.) See also id. § 1502.4; § 1508.25(a)(2). Conversely, once the cumulative impact of a number of mining claims crosses the threshold of "significant effect on the environment," a discussion of those cumulative impacts in individual EA's no longer complies with NEPA.

To succeed on the merits of a NEPA claim in the Ninth Circuit, plaintiffs must merely allege facts "which, if true, show that the proposed project may significantly degrade some human environmental factor." Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 [12 ELR 20968] (9th Cir. 1982). This burden is met if plaintiffs raise "substantial questions . . . whether [an action] may have a significant effect on the human environment." Id. Based on the evidence before the court, it finds that the Park Service would have no reasonable basis for concluding that the mining in Denali, Wrangell-St. Elias, or Yukon-Charley Parks will not require an EIS.

The court will not review all the evidence regarding cumulative effects of the mining operations and access thereto, this having been reviewed in considerable detail in plaintiffs' briefs. Nevertheless, the fact that mining in the Wrangell-St. Elias and Yukon-Charley River Parks is extensive enough to cause certain areas in those parks to be excluded from consideration as wilderness in itself raises "substantial questions" whether the mining will have a significant [16 ELR 20245] impact on the environment of the parks. Similarly, the cumulative impacts of mining and mining access in Denali is well documented in the Kantishna Hills/Dunkle Mine Study FEIS.³

Additionally, the Park Service's lack of diligence in preparing EA's or EIS's demands that the court order preparation of comprehensive EIS's at this time. See NRDC v. Mortion 388 F. Supp. 829, 835-36 [5 ELR 20327] (D.D.C. 1974). As is noted by plaintiffs, there is an incongruity in allowing the Park Service to use its long-term, continuous failure to prepare EA's as a defense to plaintiffs' EIS claims. In any event, postponing the decision regarding whether to prepare cumulative EIS's may adversely affect the miners by potentially delaying final Park Service compliance with NEPA. See Plaintiffs' Opposition Brief to Federal Defendants' Motion to Reconsider at 9.

In conclusion, the court finds that paragraph 8 of its July 22, 1985 injunction should not be modified, and in addition, must be extended to include Denali National Park and Preserve. Intervenors suggest that such an order is too broad, in that some lode or other miners that have operations that do not appreciably affect the environment should not be included in its scope. In the event a mining operation in fact does not contribute to any cumulative environmental impact on a park, the government may move to modify the injunction to exclude the operation.⁴

Accordingly, IT IS ORDERED:

(1) THAT the government's motion to reconsider is denied;

(2) THAT plaintiffs' motion to extend paragraph 8 of the injunction to include Denali National Park and Preserve is granted;

(3) THAT paragraph 8 of the court's July 22, 1985 injunction is hereby amended to include Denali National Park and Preserve;

(4) THAT plaintiffs' motion to strike insufficient defenses is denied conditioned upon the government amending its answer within 30 days of the date of this order;

(5) THAT plaintiffs' motion to strike intervenors' brief in support of the motion for reconsideration is denied.

1. Defendants initially argue that the cumulative EIS issue was not before the court at the time of plaintiffs' motion for P.I. However, since the cumulative EIS issue was raised directly by plaintiffs' briefs, it was incumbent upon defendants to raise defenses to plaintiffs' arguments at that time, rather than in a subsequent motion for reconsideration.

2. Contrary to defendants' assertion, an agency is not required to do an EA in order to determine whether an EIS is in fact necessary. 40 C.F.R. § 1501.3 (1985). It can always prepare an EIS without first preparing an EA if it is clear an EIS is needed. Rather, an EA is required only when an agency is unsure whether to prepare a full-scale EIS. Id. § 1501.4.

3. This EIS cannot serve as a cumulative EIS because it does not adequately consider all reasonable alternatives and mitigation measures that would protect Denali's environment.

4. Alternately, the miner may move to intervene and then request relief from the injunction.