Defenders of Wildlife v. Andrus

No. 77-0212 (D.D.C. February 14, 1977)

Granting plaintiff's motion for preliminary injunctive relief, the court enjoins the aerial killing of wolves by the State of Alaska on lands under the jurisdiction of the Bureau of Land Management (BLM) pending completion of an environmental impact statement pursuant to the National Environmental Policy Act (NEPA). Alaska seeks to carry out the "wolf kill" to protect caribou herds, and defendants assert that Alaska has the authority to manage wildlife on federal lands within its borders. The lands involved in this action are primarily "d-2" lands, which were withdrawn pursuant to the Alaska Native Claims Settlement Act (ANCSA) for possible inclusion by Congress in any of the national park, forest, wildlife refuge, or wild and scenic river systems. In finding that plaintiffs are likely to succeed on the merits, the court holds that ANCSA and the Federal Land Policy and Management Act of 1976 (the BLM Organic Act) vest in BLM the authority to prevent persons licensed by Alaska from killing wolves in d-2 lands. Looking at the legislative history of ANCSA, the court concludes that Congress intended the d-2 lands and their resources be preserved until Congress determines their use. Plaintiffs have shown that the wolf kill could adversely affect the resources and thus impair Congress' latitude. Furthermore, the Secretary of the Interior has authority under the BLM Organic Act to prevent the wolf kill on federal lands under the obligation to manage federal lands pursuant to multiple-use principles and to administer the wildlife thereupon. The court does not elaborate on the Secretary's authority to administer the d-2 lands, the Secretary's authority to close the federal lands to non-sport, state-licensed hunting, or any obligation under ANCSA to assess the environmental impact of actions on d-2 lands. In addition, the court finds not only that the wolf kill is a "major federal action" within NEPA's ambit but that BLM's refusal to do an environmental impact statement would likely be found arbitrary, capricious, and contrary to law. The irreparable injury to plaintiffs was the substantial likelihood that defendants failed to comply with NEPA. In addition, there is the substantial likelihood that, unless enjoined, the wolf kill would irreparably harm the natural environment in the d-2 lands. Defendants would not be substantially harmed by a preliminary injunction, and the harm to Alaska does not outweigh the potential, unevaluated harm to the resources involved.

Counsel for Plaintiffs
Karrin P. Sheldon, Ruby I. Compton, Thomas B. Stoel, Jr.
Natural Resources Defense Council
917 15th St., NW, Washington DC 20005
(202) 737-5000

Counsel for Defendants
John E. Lindskold
Department of Justice
Washington DC 20530
(202) 739-2654

[7 ELR 20225]

Gasch, J:

ORDER

Upon consideration of defendants' motion to transfer this action to the United States District Court for the District of Alaska and plaintiffs' motion for a preliminary injunction, the memoranda of points and authorities filed by the parties, the entire record herein, having heard counsel at oral argument, and for the reasons set forth in the attached Memorandum, it is by the court this 14th day of February, 1977,

ORDERED that defendants' motion to transfer this action to the United States District Court for the District of Alaska be, and hereby is, denied; and it is further

ORDERED that plaintiff's motion for a preliminary injunction be, and hereby is granted; and it is further

ORDERED that defendants be, and hereby are, enjoined from permitting the aerial killing of wolves by persons acting as agents of permittees of the State of Alaska on lnds in Alaska Game Management Units 23, 24, and 26 which are under the jurisdiction of the Bureau of Land Management of the Department of the Interior and to take all steps necessary to halt the aerial killing of wolves by persons acting as the agents or permittees of the State of Alaska on lands in Alaska Game Management Units 23, 24, and 26 which are under the jurisdiction of the Bureau of Land Management of the Department of the Interior pursuant to the full measure of their authority under the Federal Land Policy and Management Act of 1976, Pub. L. 94-579 (1976) and the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq. pending the final disposition of this suit by this court.

[7 ELR 20226]

MEMORANDUM

This is an action for declaratory and injunctive relief arising out of what has been termed a "wolf kill" program in Alaska which is being conducted, in part, on federal lands in Alaska under the jurisdiction of the Bureau of Land Management (hereinafter BLM) of the Department of the Interior. Plaintiffs¹ bring this action against the defendants, various named officials of the Department of the Interior,² pursuant to the Federal Land Policy and Management Act of 1976, Pub. L. 94-579 (1976), the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. They seek a declaration from this court that the above statutes require defendants to assess and consider the environmental impacts of the wolf kill and to prepare an environmental impact statement before allowing the wolf kill to occur on these federal lands and an injunction prohibiting defendants from allowing the wolf kill to occur on these federal lands until these requirements are met. This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1361, 28 U.S.C. §§ 2201-2202, the Administrative Procedure Act, 5 U.S.C. §§ 701-706, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq. This action is now before the court on plaintiffs' motion for a preliminary injunction and defendants' motion for a change of venue.³

Background

The wolf kill which is the subject of the instant action is being undertaken by the Alaska Department of Fish and Game (hereinafter ADFG). The goal of the program is to kill 80 percent of the wolf population, about 1,000 wolves, in Alaska Game Management Units 23, 24, and 26⁴ during the winter of 1976-77. The killing will be done from airplanes by hunters licensed by ADFG. ADFG has determined to issue 30 such hunting permits, of which about 16 have been issued. This wolf kill is currently underway, and approximately 30 wolves have already been killed.

The wolf kill was undertaken to halt the sharp decline in the caribou population in this region; it does not involve sport or subsistence hunting. The caribou population in this area has sharply declined in the last six years, from about 244,000 in 1970 and about 60,000 in 1976. The wolves are one of the principal predators of the caribou. Also as a part of ADFG's efforts to halt the decline in this caribou population, ADFG curtailed caribou hunting by man in August of 1976 and limited the native subsistence hunters to an annual take of 3,000 bull caribou.

Alaska Game Management Units 23, 24, and 26 comprise an area of about 144,000 square miles, mostly in the Article region. Approximately 30 percent of this land is federal land under the jurisdiction of BLM. Approximately 80 percent of the BLM administered land is what is referred to as "d-2 lands." These are lands which have been withdrawn pursuan to § 17(d)(2) of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1616(d)(2), for possible inclusion in the nation's National Park, National Forest, Wildlife Refuge, and Wild and Scenic River Systems.⁵ A meeting of the D-2 Council, which was established by BLM to assist it in administering d-2 lands,⁶ held in Alaska on October 5, 1976, considered and discussed the wolf kill, but did not take any action with respect to it.

The Arctic region where this wolf kill is occurring is a particularly fragile ecosystem. The wolf and the caribou are two of the dominant life forms in this region and have coexisted for at least 10,000 years. There are also several native groups in this region who depend on caribou hunting for part of their food supply.

The wolves prey on old, sick, injured, and young caribou, thereby culling the weakest members from the caribou herd and keeping the caribou's habitat and food supply from being overburdened. The elimination of a substantial portion of the predator population may cause the caribou population to oscillate widely and, in the long term, decline significantly. When weak members ofthe herd are not eliminated, the health of the entire population may be adversely affected and the habitat and food supply may be overburdened. This, in turn, may cause a marked decline in the caribou population. This has occurred as a result of other predator control programs.

The wolves depend on the pack structure for survival, and the dominant male is of critical importance to the maintenance of the pack structure. The random killing of 80 percent of the wolves may have dire secondary effects on the surviving 20 percent of the wolves through potential destruction of the pack structure. When caribou populations decline, the wolf populations also decline naturally. The survival of those wolves least fit for survival, such as the older wolves and wolf pups, is reduced when hunting success becomes low. Wolves also postpone procreation during such times.

Venue

Defendants seek to have this action transferred to the United States District Court for the District of Alaska, pursuant to 28 U.S.C. § 1404(a). In support of this motion, defendants claim that the State of Alaska is necessary for adequate relief, that the interests of justice and the convenience of the parties will be served by such a transfer, and that the plaintiffs in the instant action previously filed a similar action in Alaska.

As a general rule, the plaintiffs' choice of venue, if proper, is to be respected. Venue is proper in this court, and defendants have shown no meritorious reasons for transferring this action to Alaska. For the reasons set forth below,⁷ the court has determined that defendants have independent authority to prevent the wolf kill from occurring on federal land, so that adequate relief can be granted without the presence of Alaska as a party and that this action presents questions different from those presented in Defenders of Wildlife v. Kleppe, C.A. No. A76-13 (D. Alas. 1976), the previous action instituted by the plaintiffs. The interests of justice and the convenience of the parties will best be served by not transferring this action to Alaska. Such a transfer would impose pecuniary and other hardships on the plaintiffs, such that they may be unable to pursue this action if transferred to Alaska. Consequently, defendants' motion must be denied.

Preliminary Injunction

Plaintiffs contend that defendants have violated the Alaska Native Claims Settlement Act (hereinafter ANSCA), 43 U.S.C. § 1601 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by failing to assess and consider the environmental effects of the wolf kill and to prepare and circulate an environmental impact statement (hereinafter EIS) prior to permitting this wolf kill to occur on federal lands. They seek, at this stage in the proceedings, a preliminary injunction prohibiting defendants from permitting this wolf kill to occur on federal lands until these requirements are met. To be entitled to such relief, plaintiffs must show: (1) that there is a substantial likelihood they will prevail on the merits; (2) that they will be irreparably injured absent such relief; (3) that such relief will not substantially harm the other parties interested in the proceedings; and (4) that the public interest would be served by such relief. Virginia Petroleum [7 ELR 20227] Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921 (D.C. Cir. 1958).

1. Likelihood of Success on the Merits

For plaintiffs to prevail on their NEPA and ANCSA claims, there must be some authority in defendants to prevent the wolf kill on these federal lands. Absent such authority, there could be no federal action for purposes of the applicability of NEPA and no violation of ANSCA. Defendants contend that Alaska has complete and exclusive jurisdiction over wildlife management on federal lands and that they lacked any authority to prevent the occurrence of the wolf kill on federal lands. Consequently, they claim that there is no federal action in the instant case and that should this court issue an injunction, they could only ask ADFG to halt the wolf kill.

As defendants aptly point out, the Alaska Statehood Act gave Alaska jurisdiction over wildlife management in Alaska, including wildlife on federal lands. Chapter 2, § 6(e) of this Act provides, in part, that:

. . . Provided, That the administration and management of the fish and wildlife resources of Alaska shall be retained by the Federal Government under existing laws until the first day of the first calendar year following the expiration of ninety calendar days after the Secretary of the Interior certifies to the Congress that the Alaska State Legislature has made adequate provision for the administration, management, and conservation of said resources in the broad national interest: . . . .

The requisite certification was made to Congress on April 27, 1959.⁸ The Supreme Court has held that this provision gives to Alaska the same measure of control over its wildlife as possessed by other states. Metakatla Indians v. Egan, 369 U.S. 45, 57 (1962).

While the Alaska Statehood Act did vest transfer responsibility for wildlife management to Alaska, plaintiffs contend that Congress subsequently vested some measure of authority for wildlife management on federal lands in the BLM by virtue of ANCSA and the Federal Land Policy and Management Act of 1976 (hereinafter BLM Organic Act), Pub. L. 94-579 (1976). Defendants do not claim that Congress lacks the authority to vest the BLM jurisdiction or authority over wildlife on federal lands,⁹ but rather that neither of these acts gives the BLM any authority over wildlife or to prevent the wolf kill. They argue that these acts do not diminish Alaska's previous plenary responsibility for wildlife. This court is of the opinion that these acts do vest the BLM the authority to prevent persons licensed by ADFG from conducting the wolf kill on d-2 lands.

Section 17(d)(2) of the ANCSA, 43 U.S.C. § 1616(d)(2)(A), provides:

(2)(A) The Secretary, acting under authority provided for in existing law, is directed to withdraw from all forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from selection under the Alaska Statehood Act, and from selection by Regional Corporations pursuant to section 1610 of this title, up to, but not to exceed, eighty million acres of unreserved public lands in the State of Alaska, including previously classified lands, which the Secretary deems are suitable for addition to or creation as units of the National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems: Provided, That such withdrawals shall not affect the authority of the State and the Regional and Village Corporations to make selections and obtain patents within the area withdrawn pursuant to section 1610 of this title.

The final decision as to whether to include these d-2 lands into one of these systems resides in Congress. Proposals have been made to include the d-2 lands involved in the instant action in the National Park, Wildlife Refuges, and Wild and Scenic Rivers Systems.

Section 17(d)(3) of the Act, 43 U.S.C. § 1616(d)(3), provides that "[A]ny lands withdrawn under this section shall be subject to administration by the Secretary under applicable laws and regulations, . . ." Defendants contend that the Alaska Statehood Act is an applicable law and that, consequently, the Secretary's authority to administer the d-2 lands is limited by the state's exclusive control over wildlife management. The Alaska Statehood Act is certainly an "applicable law" to which the Secretary's administration is subject under § 17(d)(3), but the Secretary's power in administering the d-2 lands is not quite as limited as defendants contend. When § 17(d)(3) is read in conjunction with the congressional purposes underlying ANCSA, it cannot be construed to mean the Secretary cannot under any circumstances prevent persons, even persons licensed by Alaska, from entering these lands to take action affecting the wildlife thereon.

Congress has authorized the withdrawal of the d-2 lands for possible inclusion in the Wildlife Refuge, National Park, and other systems and reserved to itself the final decision as to whether these lands should be included in these systems. By so doing, Congress must have intended that, at least absent special considerations, the essential character of and resources on d-2 lands should be preserved and that it should have a meaningful opportunity to determine the ultimate designation, or disposition, of these lands. Cf. Parker v. United States, 488 F.2d 793 [1 ELR 20489] (10th Cir. 1971). To this end, Congress gave the Secretary of the Interior jurisdiction over these lands in § 17(d)(3). Where persons, even persons licensed by ADFG, propose to take actions on d-2 land which threaten resources, which preclude the resident wildlife thereon such that their suitability for future designation as part of these various systems and the meaningfulness of Congress' opportunities may be materially and unnecessarily impaired, the Secretary's authority to administer the d-2 lands includes the authority to keep such persons off or from taking such actions on d-2 lands, at least until he can determine whether such impairment will in fact result.¹⁰ Plaintiffs have shown that the wolf kill may have such adverse effects, so that defendants could prevent the ADFG licensed hunters from coming on or using d-2 land for these purposes until they determine whether such adverse effects will in fact result.

The defendants also have the authority to prevent the wolf kill from occurring on all of the federal lands under BLM's jurisdiction under the Federal Land Policy and Management Act of 1976, or the BLM Organic Act as it has been called. This Act compiles into one statute the various provisions for the administration and handling of federal lands.It also sets out various policies according to which federal lands are to be administered.

Title III of the BLM Organic Act contains the provisions governing BLM's administration of public lands. Section 302(a) of the Act states that the "Secretary shall manage the public lands under principles of multiple use and sustained yield. . . ." The term "multiple use" is defined in § 103(c) of the Act to mean:

(c) The term "multiple use" means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; . . .

The Secretary's mandate to administer the land for multiple use purposes includes, in circumstances such as those presented [7 ELR 20228] here, the authority to close the federal lands to hunting when one of the multiple uses, such as wildlife, is seriously threatened. Section 302(b) of the Act, relied on by defendants, does not require a different interpretation of the Secretary's authority. Section 302(b) provides, in relevant part, that:

. . . That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law.

This provision in § 302(b) was a compromise between the provisions in the House and Senate bills concerning wildlife management worked out by the Conference Committee. The Conference Report, at Paragraph 17, explains this provision as follows:

17. The Senate bill and House amendments differed as to relation of BLM and the Forest Service management to State hunting and fishing laws. The conferees authorize the two Bureaus to ban hunting and fishing for reasons of public safety, administration, and compliance with applicable law. The word "administration" authorizes exclusion of hunting and fishing from an area in order to maintain the ability of appropriate officials to maintain administrative supervision. It does not authorize exclusions simply because hunting and fishing would interfere with resource-management goals.¹¹

While the Conference Report suggests that Congress did not intend to confer on defendants the authority to close federal lands to hunting where one of the goals of federal land management, multiple use, was threatened, the congressional debates reveal that this restrictive interpretation of the Secretary's authority was not intended by the Report or by Congress.

When the Conference Report and bill were introduced into the Senate and House, strong objections were voiced to Paragraph 17 of the Report and different interpretations of § 302(b) were set forth. Senator Metcalf, Chairman of the Conference Committee, introduced the Conference Report in the Senate and made the following statements concerning § 302(b) of the Act and Paragraph 17 of the Report:

Mr. Metcalf. The language concerning management of wildlife on BLM and Forest Service lands differed in the House and Senate versions of the Organic Act, and these differences were resolved in conference.

The Senate bill said in section 101(1):

Provided, however, that no provision of this act shall be construed as authorizing the Secretary to require any Federal permit to hunt or fish on the national resource lands.

In section 505(b) the Senate bill said:

Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States, or . . . (7) as affecting the jurisdiction or responsibilities of the several states with respect to wildlife and fish in the national resource lands. . . .

The House amendment took a narrower approach and said:

Nothing in this Act shall be construed as authorizing the Secretary concerned to require federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as infringing on the responsibility and authority of the States for management of fish and resident wildife. However, the Secretary concerned may designate areas of public lands and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety.

The conferees resolve the differences with the following language:

Provided further, that nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designaste areas of public lands and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration or compliance with provisions of applicable law.

Section 302(b).

Unfortunately, in attempting to define the term "administration," the statement of managers confuses the issue and could be wrongly interpreted to prevent the Secretary from protecting the public lands.

Traditionally, the States have regulated fishing and hunting of resident species of wildlife. The BLM and the Forest Service have not attempted to manage resident species of wildlife, but have focused on management of their habitat. This bill does nothing to change that. However, as a property owner the Federal Government has certain rights, and those rights have been upheld by the Supreme Court, most recently in Kleppe against New Mexico (June 17, 1976). In that case the Court unanimously said:

We hold that the Property Clause also gives Congress the power to protect wildlife on the public lands, state law notwithstanding.

The conference report does not in any way surrender Congress' power.

The language of the statement of the managers could be interpreted as so narrowing the definition of "administration" that the agency would be unable to close an area to hunting even where the number of a species is drastically reduced. Carried further this language could be interpreted to mean that an area which was used for habitat research could not be closed to hunting or fishing "simply because hunting and fishing would interfere with resource management goals."

In this legislation for the first time we are giving BLM basic statutory authority to manage the public lands on a multiple-use basis. Two of those uses are hunting and fishing, but they should not take precedence over all other uses. Further, it makes no sense to give an agency authority and then to tie its hands.

When this matter was discussed by the conferees, the right — indeed the responsibility — of BLM and the Forest Service to manage wildlife habitat was agreed to by all. I believe the language in the statement of managers could be interpreted differently and thus does not accurately reflect the conferees' agreement on this issue.¹²

In the House, Representative Melcher, Chairman of the Subcommittee of the House Interior Committee which handled the bill, and Representative Seiberling engaged in the following dialogue concerning Paragraph 17 of the Report and the nature of the state-federal relationship under the Act:

Mr. Seiberling. Mr. Speaker, I have a question concerning the language of the conference report.

The language concerning management of wildlife on [7 ELR 20229] BLM and Forest Service lands differed in the House and Senate versions of the Organic Act, and these differences were resolved in conference. Lands could be closed by the agencies to hunting or fishing for reasons of "public safety, administration, or compliance with provisions of applicable law."

However, in attempting to define the term "administration," the conference report language confuses the issues and appears to remove administration as a reason for closure to hunting and fishing as follows:

The word administration authorizes exclusion of hunting and fishing from an area in order to maintain the ability of appropriate officials to maintain supervision. It does not authorize exclusions simply because hunting and fishing would interfere with resource management goals.

The second sentence quoted seems to negate the term "administration" and seems to be inherently consistent with the whole concept of administration, which among other things requires protection of threatened fish and game resources.

I would like to ask the gentleman from Montana what his understanding of the term "administration" was. It certainly would include the proprietary right of agencies as a landlord to manage wildlife habitat, would it not?

Mr. Melcher. Yes. The intent of the bill and the intent of the conference report is to assure that wildlife habitat management, and wildlife itself, are included in the management on our Federal lands.

We do not, however, intend to interfere with the States' prerogatives in setting the seasons for hunting of wildlife and wildfowl.On that score the Federal agencies go back to what has been left as State prerogatives, but the general management of wildlife habitat is expected, and also is a Federal responsibility.

Mr. Seiberling. I would certainly concur with the gentleman on that. I would like to ask one further question: Would the gentleman agree that consistent with the multiple-use policy of this legislation, management of wildlife habitat with that exception is a responsibility of the BLM and Forest Service on public lands.

Mr. Melcher. Yes, we view wildlife as part of the resources on our Federal lands.

Mr. Seiberling. Therefore, I take it that the gentleman would agree that the BLM and the Forest Service could close lands under their jurisdiction to hunting and fishing for reasons related to the management of the wildlife habitat?

Mr. Melcher. Yes, I would agree to that, but we do expect to cooperate in all instances possible with the State Fish and Game Commissions to allow those authorities to set hunting seasons and to set requirements for hunting and fishing.¹³

Reading § 302(b) in conjunction with § 302(a) and in light of the congressional intent underlying these provisions, the Act must be construed to mean that the Secretary does have the authority to close the federal lands to the instant wolf kill. By providing that the states' responsibility was not diminished by the Act, Congress intended to preserve to he states their traditional control over sport hunting and fishing seasons and the licensing of such hunting and fishing. However, by authorizing the Secretary to close the federal lands to hunting for public safety, administration and law enforcement reasons, Congress intended to vest defendants with some authority over the use of federal lands for hunting. The administration of the public lands includes their administration for multiple-use purposes, such as wildlife preservation, so that the Secretary can prevent, under certain circumstances, hunting on federal lands when a multiple use such as wildlife is seriously threatened. The court will not at this time delineate the exact parameters of the Secretary's authority to close federal lands to non-sport, state licensed hunting. The court determines only that the Secretary has the authority to prevent persons from coming on federal lands to hunt wildlife for purposes other than sport or subsistence where, as plaintiffs have shown to be true in the instant case, such hunting presents a serious threat to the existence of a form of wildlife on these lands, at least until BLM has the opportunity to assess and consider the impact of the proposed hunt and seek the cooperation of the state game officials.

Neither Defenders of Wildlife v. Kleppe, C.A. No. 76-0283 (D.D.C. 1976) nor Defenders of Wildlife v. Alaska Department of Fish and Game, C.A. No. A76-13 (D. Alas. 1976), compel this court to determine that the instant action does not involve any federal action. Although both of these cases involved other wolf kills in Alaska conducted in part on federal land by ADFG, both cases were decided prior to the enactment of the Federal Land Policy and Management Act of 1976, Pub. L. 94-579 (1976), and neither case involved lands administered under § 17(d)(3) of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1616(d)(3). They are, therefore, distinguishable in material respects.

As to whether the defendants' failure to exercise their authority sonstitutes a violation of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., or of ANCSA, 43 U.S.C. § 1601 et seq., the court determines that plaintiffs have shown a very substantial likelihood of success on the merits of their claim that defendants have violated the requirements of NEPA by not preparing an environmental impact statement prior to allowing the wolf kill to occur on federal lands. The courts does not reach the question of whether defendants have an obligation under ANCSA to assess and consider the environmental impacts of the wolf kill prior to permitting it to occur on d-2 lands.¹⁴

On November 11, 1976, plaintiff Natural Resources Defense Council requested defendant BLM to prepare an environmental impact statement on the wolf kill. The BLM refused on the ground that the wolf kill is an Alaska matter. In this circuit, an agency's¹⁵ decision not to prepare an environmental impact statement is to be reviewed by the court to determine whether the decision was arbitrary, capricious, or contrary to the requirements of NEPA. Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029 [3 ELR 20702] (D.C. Cir. 1973); Duke City Lumber Co. v. Butz, 382 F. Supp. 362 [5 ELR 20080] (D.D.C. 1974), affirmed, 539 F.2d 220 (D.C. Cir. 1976). Plaintiffs have shown that there is a substantial likelihood that BLM's decision not to prepare an environmental impact statement was arbitrary and capricious and contrary to the requirements of NEPA.

An agency must prepare an EIS only for major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C). The fact that defendants are not funding or directly participating in the wolf kill does not preclude their action from being a major federal action. A decision by a federal agency which permits another party, governmental or private, to take action affecting the environment can constitute a major federal action. Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079 [3 ELR 20525] (D.C. Cir. 1973); Natural resources Defense Council, Inc. v. Morton, 388 F. Supp. 829 [5 ELR 20327] (D.D.C. 1974), affirmed, 527 F.2d 1386 (D.C. Cir. 1976). In the instant case, defendants' failure to prevent the wolf kill from occurring on federal lands is in substance action which permits these ADFG hunters to take action affecting the environment.

Approximately 43,000 square miles of federal lands are involved in the wolf kill, of which about 80 percent is d-2 land which is being held for possible inclusion in this nation's National Park, Wildlife Refuge, and Wild and Scenic Rivers Systems. Much of this land is located in the Arctic which has a very fragile ecosystem. The wolves and caribou have successfully coexisted on these lands for 10,000 years. The killing of 80 percent of the wolves in these regions may, apart from the obvious effect on [7 ELR 20230] these wolves, have serious detrimental effects on the remaining wolves and the caribou.¹⁶ The ecosystem in this area may be seriously upset and the recreational and aesthetic values of the region impaired. In that the wolf kill may have long range adverse effects on he caribou herd, the interests of the native subsistence hunters who partially depend on the caribou for food may be impaired.

The court is of the opinion that, in light of the above factors, the defendants' failure to prevent the wolf kill from occurring on federal lands is a major federal action significantly affecting the quality of the human environment.¹⁷

In addition, plaintiffs have shown that there is a substantial likelihood that BLM's failure to prepare an environmental impact statement fails to conform to its own regulations. The Bureau of Land Management's Guidelines for the preparation of environmental statements, contained in 37 Fed. Reg. 15015, 15017, provide that an environmental impact statement may be required for:

B. Projects, programs, and continuing activities, including research: (1) Directly undertaken by the Bureau; (2) Supported in whole or in part through Bureau contracts; (3) Involving a Bureau lease, permit, license, or other entitlement of use.

C. Recommendations or adoption of policies, standards, procedures, regulations, and plans which affect the environment.

D. Actions relating to natural or cultural resources: (1) Acquisition or disposal; (2) Regulation, permission, prohibition, or other institutional control of their use; (3) Their operation or physical management; . . .

The wolf kill is a project or program involving a BLM entitlement of use. By allowing the hunters licensed by ADFG to hunt these wolves on federal lands, BLM is certainly entitling them to use these lands for the wolf kill program.

2. Irreparable Injury

The very substantial likelihood that defendants have failed to comply with the requirements of NEPA represents irreparable injury to the plaintiffs. NEPA was not only intended to prevent unnecessary harm to the environment, but also, and principally, to ensure that federal action is undertaken only after the decision makers have fully assessed the environmental harms. The environmental impact statement requirement was also designed to enhance the public's knowledge of environmental effects of federal actions. See Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502 [4 ELR 20479] (D.C. Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972). The defendants' failure to comply with NEPA has deprived plaintiffs of these rights. The wolf kill is already underway. If defendants are not enjoined pending the preparation of an EIS and plaintiffs prevail on the merits, the wolf kill may be completed or so substantially completed prior to the preparation of the EIS and plaintiffs' rights under NEPA never fully vindicated. In the instant action, then, the very substantial likelihood that defendants have failed to comply with NEPA satisfies the irreparable injury requirement.See Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973); Environmental Defense Fund v. Froehlke, 477 F.2d 1033 (8th Cir. 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 [2 ELR 20162] (4th Cir. 1972).

In the instant case, there is, in addition, a substantial likelihood that the wolf kill may seriously and irreparably harm the natural environment in these regions. Plaintiffs use these federal lands for recreational, educational, aesthetic and other purposes, and these interests may be consequently irreparably injured by the wolf kill. Defendants have never fully considered the environmental impact of the wolf kill.¹⁸ After preparation of an environmental impact statement and full consideration of the environmental affects, defendants may well determine not to permit the wolf kill to occur on the federal lands, and this injury to plaintiffs' interests would be avoided.

3. Injury to Others and the Public Interest

Defendants will not be substantially injured by a preliminary injunction. Since they have invested neither time nor money in the wolf kill program, they will suffer no pecuniary loss or loss of effort. The cost to and burden on defendants preparing an environmental impact statement does not warrant denying plaintiffs the relief they seek.

Although the State of Alaska is not a party to this action, its interests will be affected by a grant of preliminary injunctive relief. The injury to its interests, however, is not substantial enough to warrant a denial of the requested relief. This court's order has no effect on the ability of Alaska to continue the wolf kill on lands not under defendants' jurisdiction, nor will the court's order permanently prevent Alaska from conducting its wolf control program on land under defendants' jurisdiction. The plaintiffs have requested only that defendants be enjoined from permitting the wolf kill from occurring on lands under their jurisdiction until they have complied with the requirements of NEPA; they do not seek to enjoin defendants from ever permitting the wolf control program to be conducted on such lands. The extent of any inconvenience or hardship to Alaska from the requested relief is outweighed by the public interest in ensuring that federal officials administer federal lands in accordance with federal laws, such as NEPA.

The public interest lies in granting the requested relief. The public's right under NEPA to have federal officials consider the environmental effects of federal action prior to undertaking such action will be secured, as will the public's interest in having federal officials comply with federal laws.

The court recognizes that granting the requested relief may result in more members of the caribou population being killed through wolf predation than would be the case absent such relief. This would, in turn, affect the interests of the native subsistence hunters in the region. However, the wolf and the caribou have managed to coexist in this region for 10,000 years. The potential injury to the caribou from this natural prey-predator relationship with the wolves, and resulting injury to the interests of the natives, is outweighed by the certain substantial injury to the wolves from this large-scale aerial hunting by man.

This Memorandum shall constitute the court's Findings of Fact and Conclusions of Law, as required by Rule 65(d) of the Federal Rules of Civil Procedure.

1. Plaintiffs are: Defenders of Wildlife; Natural Resources Defense Council, Inc.; International Fund for Animal Welfare; The Humane Society of the United States; The Fund for Animals; Animal Welfare Institute; The Wild Canid Survival and Research Center — Wolf Sanctuary; Friends of the Earth, Inc.; Gilbert M. Zemansky; Annette M. Cordano; Martin B. Cardano; James L. Pitts; Wilber Mills; Mary McCammon; and James Kowalski.

2. Defendants are: Cecil D. Andrus, Secretary of the Interior; Christopher G. Farrand, Acting Assistant Secretary for Land & Water Resources, Department of the Interior; and Curtis J. Berklund, Director of the Bureau of Land Management, Department of the Interior. Alaska is not a party to the instant action.

3. The International Association of Fish and Wildlife Agencies has participated in this action as an amicus curiae.

4. The International Association of Fish and Wildlife Agencies has represented to this court that the wolf kill will not occur on Alaska Game Management Unit 26 and that less than 1,000 wolves will be killed. These differences are not material to the court's resolution of the issues in this case.

5. Proposals have been made to include the d-2 lands involved in the instant case in the National Park, Wildlife Refuge and Wild and Scenic River Systems, but not in the National Forest System.

6. The D-2 Council is comprised of representatives of the Forest Service, Fish and Wildlife Service National Park Service, and BLM.

7. See pages 7-15 [7 ELR 20227-20228] infra.

8. See also Executive Order 10857.

9. The contention that Congress lacked the power to control or regulate wildlife management on federal lands would have little merit. Kleppe v. New Mexico, 426 U.S. 529 [6 ELR 20545] (June 15, 1976).

10. The court will not at this time undertake to set out the precise parameters of the Secretary's authority under § 17(d)(3) of ANCSA, 43 U.S.C. § 1616(d)(3). The court concludes only that it has the authority on the facts of the instant case to prevent the hunters licensed by ADFG to conduct the wolf kill from entering or using d-2 lands for these purposes.

11. 122 Cong. Rec. H11553 (daily ed. Sept. 29, 1976).

12. 122 Cong. Rec. S17667-68 (daily ed. Oct. 1, 1976).

13. 122 Cong. Rec. H12009 (daily ed. Sept. 30, 1976)

14. The nature of this obligation plaintiffs contend is imposed on defendants by ANCSA is not substantially different from that imposed by NEPA, if applicable. The court having determined that there is a substantial likelihood that NEPA applies here, it is unnecessary to reach the ANCSA issue.

15. The Department of the Interior and BLM are federal agencies.

16. See pages 2-4 [7 ELR 20226] supra.

17. In cases such as the instant one where the federal action is not in the form of funding or direct participation, courts frequently look to the significance of the environmental impact to determine whether the federal action constitutes a major federal action. See Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829 [5 ELR 20327] (D.D.C. 1974), affirmed, 527 F.2d 1386 (D.C. Cir. 1976); see also Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 [3 ELR 20383] (8th Cir. 1973); Rucker v. Willis, 484 F.2d 158 [3 ELR 20912] (4th Cir. 1973). As noted, the environmental effects of the federal action, permitting the wolf kill, are substantial. Further, this circuit has said that an environmental impact statement is not required only when the environmental effects are truly insignificant and that a statement is necessary where the environmental effects are arguably significant. Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, supra. The environmental effects here are not truly insignificant and are much more than "arguably" significant.

18. At the D-2 Council meeting held in Alaska on October 5, 1976, the Fish and Wildlife Service representative noted that ". . . without having good basic information concerning the actual numbers of wolves and caribou, it is difficult to make judgment [sic] on the proposal." Minutes, D-2 Coordination Meeting, October 5, 1976.