Natural Resources Defense Council, Inc. v. Butz

No. 1358-73 (D.D.C. February 25, 1974)

The court grants plaintiffs' motion for summary judgment and issues an injunction prohibiting the defendants from expanding the volume of timber sales offerings from the National Forests during Fiscal Year 1974 by approximately one billion board feet until NEPA compliance has occurred. The proposed program of increased logging represents a major federal action, and plaintiffs have made a prima facie showing of significant effect upon the environment. Defendants are ordered to prepare either an environmental impact statement which meets the requirements of the Act, or a statement of reasons as to why an EIS is unnecessary.

Counsel for Plaintiffs
Thomas B. Stoel, Jr.
Natural Resources Defense Council, Inc.
1710 N Street, N.W.
Washington, D.C. 20036

Bruce J. Terris
1908 Sunderland Place. N.W.
Washington, D.C. 20036

Toby Sherwood
Natural Resources Defense Council, Inc.
664 Hamilton Avenue
Palo Alto, California 94307

Barry A. Fisher
Sierra Club Legal Defense Fund, Inc.
311 California Street
San Francisco, California 94104

Counsel for Defendants
L. Mark Wine
Department of Justice
Washington, D.C 20530

Harold H. Titus, Jr. U.S. Attorney
U.S. Courthouse
3rd and Constitution Avenue, N.W.
Washington, D.C. 20001

John Knebel General Counsel
Department of Agriculture
Room 2031, South Building
Washington, D.C. 20250

[4 ELR 20226]

Waddy, J.

EXCERPT OF THE PROCEEDINGS

THE COURT: The case is before the Court on Plaintiff's motion for summary judgment.

The Plaintiff, a non-profit organization, is committed to the conservation and protection of natural resources. The Defendant Butz is the Secretary of Agriculture and he has the responsibility and authority to administer programs with respect to the national forests. John R. McGuire is Chief of Forest Service, United States Department of Agriculture, and he has the authority and responsibility to direct and supervise the use of timber resources and also to make timber sales.

The suit seeks in this case to require the Defendants to make an Environmental Impact Statement as to the effect on the environment of the proposed action of the Defendants to increase by one billion board feet the amount of timber to be taken from the national forests.

On a motion for summary judgment, the Court must determine whether there is any genuine issue of a material fact and with respect to the issue that is before the Court, this Court is of the opinion that this record shows that the agency in this case proposes to take action. Also, there is no genuine issue of material fact on the basis of this record that that proposed action is a major federal action and there is no genuine issue of material fact that a prima facie showing of significant effect upon the environment is here shown.

Accordingly, the Court will grant the Plaintiff's motion for summary judgment with the declaration that the National Environmental Policy Act of 1969 requires the Defendants to prepare and to make a NEPA Statement. The Court will also enjoin the Defendants from proceeding with the program until such time as such statement has been made, or thereafter, or in lieu thereof, a statement of reasons as to why no such impact statement should be made.

ORDER

This cause having come on for hearing, upon notice, on plaintiffs' verified complaint and supplemental complaint; defendants' answer to the verified complaint and answer to the supplemental complaint; plaintiffs' and defendants' answers to interrogatories; plaintiffs' and defendants' affidavits, statements of facts, and exhibits; and plaintiffs' motion for summary judgment and expedited consideration; and

This Court determining that defendants have violated § 102(2) of the National Environmental Policy Act, 83 Stat. 852 (1969), 42 U.S.C. §§ 4321 et seq. (1971), with respect to their decision to expand the volume of timber sales offerings from the National Forests during Fiscal Year 1974 by approximately 1.0 billion board feet; and

It appearing to this Court that unless restrained, defendants will continue to carry out such expanded timber sales offerings in violation of § 102(2) of the National Environmental Policy Act; and

This Court finding that such action by defendants would cause irreparable injury to the interests of plaintiffs and the general public; it is hereby

ORDERED, that plaintiffs' motion for summary judgment be and hereby is GRANTED, and

IT IS FURTHER DECLARED, ORDERED, AND EXPRESSLY DIRECTED, as final judgment in this matter, that

1. Defendants Earl L. Butz and John R. McGuire have a mandatory, nondiscretionary duty pursuant to § 102(2) of the National Environmental Policy Act, 83 Stat. 852 (1969), 42 U.S.C. §§ 4321 et seq. (1971), to prepare, circulate for comment, and make available to the public a statement which discusses in detail the environmental impacts of, and alternatives to, their decision to expand timber sales by approximately 1.0 billion board feet during Fiscal 1974, and to reconsider that decision in light of the statement and the comments received thereon;

2. Defendants Earl L. Butz and John R. McGuire and their agents, servants, and employees be and hereby are enjoined from taking any actions to increase the volume of timber sales offerings from the National Forests during Fiscal Year 1974 above the volume planned to be offered fro sale, during that fiscal year, prior to March 1973. Such actions shall include, but are not limited to, offering or permitting to be offered for sale from National Forest lands, during Fiscal Year 1974, a volume of timber such that the total volume of timber offered for sale from such lands during that fiscal year exceeds the volume of timber planned to be offered from such lands, during that fiscal year, prior to March 1973. This injunction shall remain in force until defendants have prepared, circulated for comment, made available to the public, and considered in their decision-making a statement which discusses in detail the environmental impacts of and alternatives to such actions and which satisfies all requirements of the National Environmental Policy Act, or until fifteen (15) days from the time defendants have prepared and made available to plaintiffs a statement of reasons as to why no such impact statement is required.