County of San Diego v. Andrus

No. 77-0236-N (S.D. Cal. August 17, 1977)

Dismissing plaintiffs' complaint, the court holds that the Interior Department need not prepare a National Environmental Policy Act environmental impact statement (EIS) prior to the formulation of a proposal for an outer continental shelf oil and gas lease sale off the coast of southern California. Defendants are considering the possibility of holding a lease sale, and an EIS will be prepared and considered by the Secretary of the Interior before the final decision on whether to hold the sale is made. At this stage, preliminary data are being gathered to focus information collection and consideration of alternatives. The court holds that it is premature to require an EIS before a proposal is sufficiently definite to permit a meaningful evaluation of the environmental impacts. An EIS is not required in advance of the preliminary actions that have heretofore been taken, and plaintiffs have had and will continue to have opportunities to express their views through administrative channels before a final decision is made on the proposed lease sale.

Counsel for Plaintiffs
John McEvoy, Deputy County Counsel
355 County Administration Center, San Diego CA 92101
(714) 236-3990

Counsel for Defendants
Michael E. Quinton, Ass't U.S. Attorney (with Terry J. Knoepp, U.S. Attorney)
U.S. Courthouse, 940 Front St., San Diego CA 92189
(714) 293-5662
Department of Justice, Washington DC 20530
(202) 739-2775
Gary Bohlke, Jack Hughes
Office of the Solicitor
Department of the Interior, Washington DC 20240
(202) 343-6848

[7 ELR 20754]

NIELSEN, J.:

Findings of Fact

This suit was brought by the County of San Diego and the City of Oceanside. Subsequently, they were joined by the City of San Diego, City of Carlsbad, City of Del Mar, and City of Coronado who were allowed to intervene as parties plaintiff.

The defendants are Cecil Andrus, Secretary of the Interior, and Curtis J. Berklund, Director, Bureau of Land Management, Department of the Interior.

The defendants at this time are considering the possibility of holding an Outer Continental Shelf (OCS) oil and gas lease sale (No. 48) off the coast of Southern California for sometime after December 1978.

The plaintiffs contend that the defendants should have prepared an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., before issuing the call for nominations, before evaluating the nominations and before selecting the tracts to be considered.

An EIS on the proposed sale is being prepared and will be completed before a final decision is made by the Secretary of the Interior on whether or not the sale should be held. The defendants have moved that this suit be dismissed for lack of jurisdiction and because plaintiffs have failed to state a claim upon which relief can be granted. The basis for the defendants' motion is that the suit is premature in that no final agency action has been taken and, therefore, there can be no judicial review.

Secretary of the Interior Andrus submitted an affidavit in support of the motion in which he stated that he has "not made any decision as to whether an OCS oil and gas lease sale will be held for additional lands offshore Southern California (proposed OCS Lease Sale No. 48), whether it should be indefinitely deferred, what tracts should be included if a sale should be authorized, or what terms should be incorporated in any lease issued in the event of a sale."

The Secretary further stated, "no decision, preliminary or final, will be made until after I determine whether or not to include OCS lease sale proposal No. 48 on a Proposed OCS Planning Schedule covering calendar years 1979 and 1980, and then only after all environmental and other studies are completed."

A description of the various stages in OCS planning leading to a decision by the Secretary of the Interior as to whether or not to hold a sale, tract selection, and lease conditions is set forth in the affidavit of Curtis J. Berklund, at that time the Director, Bureau of Land Management (BLM). It shows that preliminary data are gathered and tentative tract selections made to focus information gathering and consideration ofalternatives on specific areas of interest. Further information is gathered and a draft EIS prepared. The draft EIS will be circulated and made available to the public and governmental bodies for comment and public hearings will be held. Then the final EIS is prepared which goes to the Secretary for his consideration, along with other matters, in the decision-making process.

Plaintiffs and others have had and will continue to have an opportunity to make their views known to defendants with respect to whether or not a sale should be held, tract selection, and lease conditions. 42 Fed. Reg. 30442 (June 14, 1977). The Department of the Interior requested comments from states, local jurisdictions, industry, other federal agencies, and all interested parties to assist in the preparation of an OCS Planning Schedule for the years 1979, 1980, and 1981. The notice states that the planning schedule enables those interested to plan for their involvement in the steps leading up to the consideration of lease sales. It further states that a "decision on whether to proceed with specific sales will be made only after all the requirements of the OCS Lands Act and the National Environmental Policy Act have been met." Among the 18 specific areas on which comments are sought are the Southern California Borderland and Santa Barbara, i.e., the areas for consideration for possible sale No. 48.

Conclusions of Law

Before a meaningful EIS can be prepared, the agency must first formulate a proposal of sufficient definiteness upon which the EIS can be based. An EIS is not required before a proposal has been formulated.

To require the preparation of an EIS, a proposal must be of sufficient definiteness to make meaningful an evaluation of its environmental impact and alternatives.

Both Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976), and Aberdeen & Rockfish R. Co. v. SCRAP (SCRAP II), 422 U.S. 289 [5 ELR 20418] (1975), make it clear that EISs must be prepared on proposals and not at some prior stage in the formulation of a proposal.

The Court in SCRAP II, 42 U.S. at 320, observed that the sentence in § 102(2)(C) of NEPA which provides that the EIS shall accompany the proposal through the existing agency review process does not affect the time when the EIS must be prepared: "It simply says what must be done with the 'statement' once it is prepared — it must accompany the 'proposal'."

The Court in Kleppe, supra, noted that "the contemplation of a project and the accompanying study thereof do not necessarily result in a proposal for major federal action." 427 U.S. at 406.

Under the OCS sale formulation procedures as set forth in the Berklund and Andrus affidavits, the Department of the Interior's timing with regard to the preparation of an EIS is in accord with the requirements of NEPA.

Inasmuch as the complaint herein seeks to require the defendants to prepare an EIS prior to the formulation of a proposal, the complaint fails to state a claim on which relief can be granted to the plaintiffs and against the defendants as preparation of an EIS is not required in advance of the preliminary actions which have heretofore been taken by the defendants.

Article III, Section 2, of the Constitution confines the jurisdiction of the federal courts to "cases" and "controversies."

No justiciablecase or controversy is presented by this case at this time because of the tentative nature of proposed OCS oil and gas lease sale No. 48. See 5 U.S.C. § 704.

[7 ELR 20755]

Because the plaintiffs (and others) have had and will continue to have opportunities to express their views to the defendants through administrative channels before the Secretary of the Interior makes a final decision as to proposed lease sale No. 48, the plaintiffs have an administrative remedy available to them by which they may affect the agency decision-making process. So long as the decision as to whether or not proposed sale No. 48 is to proceed is in the administrative process in the Department of the Interior, that agency has primary jurisdiction over the dispute. Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976); Far East Conference, et al. v. United States, et al., 342 U.S. 570 (1951).

WHEREFORE, the court ORDERS, ADJUDGES AND DECREES as follows:

The entire complaint herein is dismissed, without leave to amend, for the reasons set forth in this order.

Each party shall bear its own costs herein.