3 ELR 20660 | Environmental Law Reporter | copyright © 1973 | All rights reserved

National Helium Corporation v. Morton

No. 73-1169 (10th Cir. April 10, 1973)

In a case brought by helium suppliers resisting termination of their government contracts, the appeals court defers ruling on the government's request for immediate dissolution of a preliminary injunction against termination issued in 1971 because of non-compliance with NEPA, and orders expedited trial on the agency record. Despite defendant Secretary of the Interior's argument that speedy resolution is necessary because of costly expenditures for unneeded helium, the court states that the government's one year delay in filing the EIS influences the court's decision to defer ruling for 30 days on the district court's refusal to dissolve the injunction. On remand, the court notes, judicial review should be on the basis of the administrative record of the termination action and not by trial de novo.

Counsel for Plaintiff
Robert L. Ackerly
Sellers, Conner & Cuneo
1625 K Street, N.W.
Washington, D.C. 20006

Counsel for Plaintiff-Intervenor
William H. Allen
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006

Counsel for Defendant
Raymond D. Battocchi
Department of Justice
Washington, D.C. 20530

[3 ELR 20660]

Breitenstein, J.


JUDGE BREITENSTEIN: In No. 73-1169, National Helium Corporation, and others, against Rogers C. B. Morton, Secretary of the Interior, the Court has given consideration to the matters which were presented yesterday. This oral statement will be hopefully amplified by the formal order during the day.

In the first place, it is our conclusion that the only matter before the Court is the Secretary's appeal from the District Court's denial of a Secretary's Motion to Dissolve.

Reference was made yesterday to the District Court's denial of the Secretary's Motion for a Summary Judgment and his Motion to Dismiss.

Those orders, if appealable at all, are appealable only under 28 U.S.C. 1292 (b) and that requires a petition for a relief of the Court of Appeals to grant the interlocutory appeal. No such petition has been filed yet and if it be considered that the statements made yesterday and the statements made in the brief were an application for leave to file interlocutory appeal, that leave is denied.

So we come to the question of the preliminary injunction. In that regard we considered the statement of the Government to have each date of these contracts remain alive. They are at an expense of a hundred thousand dollars to the Government.

We have also considered the statements in brief and oral argument as to the effect which the termination of the contracts will have upon the plaintiff-intervenors.

In that regard we note in the former decision of this Court National Helium against Morton handed down on October 4, 1971, the Court concluded its opinion with this statement:

"We agree with the Secretary that the matter herein involved is urgent and should be expedited in every possible way."

In connection with that statement, we note that the final NEPA statement was not filed until November 13, 1972, and that period of more than a year's delay made the decision of this Court, and the making of a statement, must be taken into consideration when acting upon the Government's request for immediate action.

At the time the District Court entered its order herein and the orders on summary judgment and Motion to Dismiss, it apparently did not have before it for consideration the March 19, 1973, decision of the United States Supreme Court, Camp v. Pitts.

As we read that decision and its applicability to a case such as that before us, it is our conclusion that those attacking agency action in the District Court do so upon the basis of the record which is made before the agency and they are not entitled to a trial de novo. We believe that the further proceedings in the District Court should be upon that basis after a review of the agency record and not a new trial on the issues.

In those circumstances, we have determined that we will make no ruling at this time on the appeal of the Government from the order denying the Motion to Dissolve. That matter will be held in the Court of Appeals in abeyance and so there may be no question about powers of the District Court.

All other aspects of the case are remanded to the District Court for a trial forthwith on the merits and by the term "forthwith," we mean forthwith.

We will expect that trial to be held and consummated within 30 days. If that is not done, we will consider a renewed application for an order of this Court on the matter of the dissolution of the injunction.

Judge Hill, do you have anything to add to that?

JUDGE HILL: No. I think that is a complete statement of what we have agreed to.



JUDGE HILL: I think we all agree that we put stress on the fact [3 ELR 20661] that this case must be expedited and that doesn't mean tried in May or June, but tried immediately in the District Court in accordance with the other directives that Judge Breitenstein has referred to.

JUDGE DOYLE: I think one problem [which] perhaps should be mentioned is the great necessity for getting this record in shape whereby there is a final judgment that is purely appealable so there can be an orderly review of it. I think this is a matter that was concerning all of us.

JUDGE BREITENSTEIN: Do counsel have any comments on the statements that I have made before you?

MR. BATTACCHI: May I ask for a clarification, Your Honor?

Do I understand the nature of the trial the Court has in mind is in fact a review of the agency action based on the administrative record?

JUDGE BREITENSTEIN: I am not going to amplify that, counsel. I have stated the position of the Court, and I am afraid that you are going to have to make your own interpretation of it.

MR. BATTOCCHI: Think You, Your Honor.

JUDGE BREITENSTEIN: Anything further?

MR. ACKERLY: We have nothing further, Your Honor.

JUDGE BREITENSTEIN: Very well. Court will be in recess until 9:30 when the calendar of the case is set for argument today will be called.

(WHEREUPON, the Court recessed at the hour of 9:08 o'clock a.m.)

This matter came on to be heard on various motions and arguments of the parties. Upon consideration thereof the court concludes that the only matter properly before it is the appeal of the Secretary of the Interior and the Director of the Bureau of Mines from the district court's March 15, 1973, order denying the motion of the government officials to dissolve the March 27, 1971, preliminary injunction granted by the district court. The court rejects the appellees' contention that the notice of appeal was not timely.

The court notes that on April 6, 1973, the district court entered an order denying the motions of the government officials for summary judgment and for dismissal of the action. These are interlocutory orders which are appealable only under 28 U.S.C. § 1292 (b). If the record be taken to present an application for leave to appeal from those interlocutory orders, leave is denied.

The action is to enjoin the termination of certain contracts for the purchase of helium by the government from the appellees. The government asserts that the contracts require the daily expenditure of over $100,000 for the purchase of unneeded helium. The basis for the March 27, 1971, preliminary injunction was noncompliance by the government with the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the Helium Act, as amended, 50 U.S.C. § 167 et seq. On the appeal of the government officials, this court affirmed the grant of the preliminary injunction because of the government's failure to comply with the National Environmental Policy Act. National Helium Corporation v. Morton, 10 Cir., 455 F.2d 650. In its opinion, filed October 4, 1971, the court said, Ibid., at 657:

"We agree with the Secretary that the matter here involved is urgent and should be expedited in every way."

The court notes that, in spite of this admonition, the final environmental statement was not filed until November 13, 1972, and that the notice of contract termination was not executed by the Secretary of the Interior until February 2, 1973. The court takes this delay as pertinent to the request of the government officials for immediate action. The Court of Appeals has expedited this matter each time that it has been before it. The present notice of appeal was filed on March 15, 1973, and arguments were heard on April 9, 1973.

The court notes the claims of counsel that the trial of this cause on the merits will be time-consuming in the completion of the discovery process and the ultimate evidentiary hearing. After the district court's order denying the motion to dissolve the preliminary injunction, the Supreme Court decided Camp v. Pitts, 41 L.W. 3515. On the facts in that case the Court held that judicial review of agency action should be on the basis of the administrative record rather than by trial de novo. At the moment we are aware of no reason why that principle should not be applied here. Accordingly, trial on the merits should not consume much time. The administrative record has been made.

In the circumstances we decline to rule at this time on the appeal from the denial of dissolution of the preliminary injunction and instead hold that matter in abeyance to await further action of this court. Except for this court's retention of the issue of the validity or propriety of the preliminary injunction, the case is remanded to the district court for a trial forthwith on the merits. That trial shall be held in accordance with the views expressed herein and the issues finally determined within thirty days from this date. If that is not done, this court will consider a renewed application for an order on the matter of the dissolution of the preliminary injunction.

3 ELR 20660 | Environmental Law Reporter | copyright © 1973 | All rights reserved