American Littoral Society v. Kleppe

No. CV-76-1188-MML (C.D. Cal. memorandum filed November 4, 1977, judgment filed January 20, 1978)

The court rejects defendants' motion to dismiss a suit challenging the Department of the Interior's national program of outer continental shelf (OCS) oil and gas lease sales and Lease Sale No. 35 off southern California in particular and gives plaintiffs leave to amend the complaint by deleting issues dealing with Lease Sale No. 35, which are barred by res judicata under a previous decision of this court. The court holds that claims respecting the national program are not barred by res judicata because it may have environmental consequences of particular concern to plaintiffs beyond those arising from Lease Sale No. 35. Further, the court rejects defendants' argument that no case or controversy is presented by a federal agency's decision to embark on a program of resource development apart from its localized effect, viewing the opinion of the Supreme Court in Kleppe v. Sierra Club, 6 ELR 20532, as approving judicial intervention after an agency has developed a full program. In order to clarify the issues for further prosecution of the case, plaintiffs may amend their complaint by deleting references to Lease Sale No. 35.

The court subsequently dismisses the action on the merits because plaintiffs failed to amend the complaint within the specified time period.

Counsel for Plaintiffs
Bruce Terris
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Brent Rushforth
Center for Law in the Public Interest
10203 Santa Monica Blvd., Los Angeles CA 90067
(213) 879-5588

Counsel for Defendants
William Cohen
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2775

Robert Pope
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6092

[8 ELR 20225]

Lucas, J.:

Judgment

This action came on for hearing before the court, Honorable Malcolm M. Lucas, District Judge presiding, and the issues having been duly heard and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED that plaintiffs, having been granted leave to file an amended complaint after their complaint was dismissed, and not having done so within the specified time period, shall take nothing, that the action is dismissed on the merits, and that the defendants shall recover of plaintiffs their costs of action.

Memorandum of Decision

This Memorandum of Decision will resolve Motions to Dismiss taken under submission following two hearings.

Factual Background

Eight environmental groups¹ bring this action on their own behalf, and on behalf of their members, challenging the decision of the Secretary of the Interior to proceed with a program of oil and gas leases on the outer continental shelf. Plaintiffs have named as defendants the then Secretary of Interior, Thomas Kleppe, and the then Director of Lands Management, Curtis J. Berklund (hereinafter federal defendants). The Western Oil and Gas Association has intervened, as have individual member petroleum companies of the Association² (hereinafter intervenors). For present purposes, an extremely abbreviated summary of the administrative actions giving rise to this litigation will suffice.

In response to a presidential directive to increase domestic oil and gas production, the Secretary of the Interior announced his decision on October 2, 1975 to adopt a general policy of accelerating outer continental shelf (herein OCS) oil and gas leasing. Prior to making that decision, the Department of the Interior had prepared a three-volume 2,700-page, programmatic environmental impact statement (herein EIS) on the proposal of accelerating OCS leasing nationwide. At the time the national program was announced, it potentially included lease sales on the Atlantic, Pacific, and Gulf of Mexico coasts, as well as the Alaska coast.Thereafter, the Secretary announced on October 31, 1975 his decision to proceed with the first such OCS oil and gas lease — Lease Sale No. 35 — off the coast of southern California. Prior to the announcement of the decision to proceed with the Southern California Lease Sale No. 35, a five-volume, 3,400-page, site-specific EIS was prepared. Lease Sale No. 35 was then held on December 11, 1975.

Anticipating the announcement to proceed with the national program and the southern California sale, the Attorney General of California brought an action in August 1974, before the Honorable David W. Williams in the Central District of California seeking to prevent Lease Sale No. 35 from proceeding. Following a trial to the court, Judge Williams issued a Memorandum of Decision on November 17, 1975 — a month after the decision to proceed with Lease Sale No. 35 — holding that the Secretary of Interior's decision to proceed with OCS leasing off the coast of southern California did not contravene the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. People ex rel. Younger v. Morton, 404 F. Supp. 26 (C.D. Cal. 1975). Accordingly, judgment was entered on behalf of the defendants.

Following entry of judgment by Judge Williams, and concurrently with the prosecution of an appeal from that adverse judgment, the Attorney General filed another action in the District Court for the District of Columbia. People of the State of California v. Thomas Kleppe, et al. Three other cases, including the present action, were filed at the same time in the District Court for the District of Columbia. Southern California Association of Governments, et al. v. Thomas Kleppe, et al.; County of Los Angeles, et al. v. Thomas Kleppe, et al.; American Littoral Society, et al. v. Thomas Kleppe, et al.³ Plaintiffs in all four consolidated cases sought to prevent, by preliminary and permanent injunction, completion of Lease Sale No. 35. Based upon a finding that plaintiffs had failed to demonstrate probable success on the merits, in part because of the doctrine of res judicata, the court denied the requested preliminary injunction on December 11, 1975.

Motions to dismiss, and in the alternative, to transfer, were brought by the federal defendants, and by the intervenors. The District Court for the District of Columbia determined that transfer of all four consolidated cases to the Central District of California was appropriate, and deferred consideration of the motions to dismiss for the transferee court. Following a hearing, this court determined that the doctrine of res judicata barred further litigation by the plaintiffs in the three actions other than American Littoral.

Prior Proceedings in This Litigation

At the close of the initial hearing on the motions to dismiss in the four consolidated cases, supra, this court dismissed the claims of plaintiffs in American Littoral as they pertained to Lease Sale No. 35. The court found that for purposes of res judicata, these [8 ELR 20226] claims raised by plaintiffs were identical to the claims raised by plaintiffs in People ex rel. Younger v. Morton, supra.

The court stated that:

[F]or purposes of those claims directed to Lease Sale No. 35, the interests of the plaintiffs in CV-76-1188-MML were represented fully before Judge Williams in the prior action.

Therefore, these claims were held barred by the principle of res judicata.

Underlying the court's dismissal of the claims in this action insofar as they relate to Lease Sale No. 35 was a recognition of the combined effect of the doctrines of standing and res judicata. Initially, it must be recognized that not all of the plaintiffs in American Littoral had standing to challenge Lease Sale No. 35. The allegation that some members of the environmental organizations comprising plaintiffs in American Littoral are interested in preserving the environmental quality of southern California coastal areas does not satisfy the requirement of "a distinct and palpable injury to [plaintiff], even if it is an injury shared by a large class of possible litigants." Warth v. Seldin, 422 U.S. 490, at 501 (1975); Simon v. Eastern Kentucky Welfare Rights Organization, 96 S. Ct. 1917 (1976).⁴ Were the court to accept this allegation as conferring standing, then virtually any party with an interest in the condition of southern California beaches, whether they lived in Malibu or Moscow, would have standing. The Supreme Court has never countenanced such a sweeping definition of standing. Simon v. Eastern Kentucky Welfare Rights Organization, supra; Warth v. Seldin, supra; Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974). On the other hand, as to those with standing, the court recognized that these plaintiffs'interests were fully and completely represented by the plaintiffs in Morton, supra. Accordingly, those with standing were held precluded by res judicata from further litigating Lease Sale No. 35. Therefore, while it is a truism that not all the plaintiffs in American Littoral are parties or in privity with parties to the litigants in Morton, supra, those plaintiffs with standing to challenge Lease Sale No. 35 are certainly bound by the judgment in Morton.

Remaining Claims in This Litigation

In recognizing that plaintiffs in American Littoral were precluded from relitigating the environmental issues concerning Lease Sale No. 35, the court reserved the question of whether or not other issues were raised by plaintiffs' complaint which were not precluded by res judicata.To consider this question, the court ordered further briefing and thereafter held a second hearing on the pending motions to dismiss by federal and intervenor defendants.

Plaintiffs' complaint in this action clearly does raise claims apart from Lease Sale No. 35. It is undisputed that plaintiffs challenge the national program of OCS oil and gas leasing, apart from Lease Sale No. 35, on the ground that the national program violates numerous statutes designed to protect the quality of the environment.

Although federal and intervenor defendants accept this, they argue that the national program of OCS oil and gas leasing has already been litigated, in connection with Lease Sale No. 35, before Judge Williams in Morton, supra. Accordingly, they urge that the court dismiss the claims made with respect to the national program as likewise barred by res judicata.

Although defendants are indeed correct that aspects of the national program were at issue before Judge Williams, their argument is unavailing. Plaintiffs allege that the national program includes a proposal for OCS oil and gas leasing in areas other than the southern California coastal region. Assuming that lease sales on the Atlantic, Gulf of Mexico, Alaska, or Pacific coasts have occurred, or are likely to occur, then the national program may indeed have environmental consequences beyond Lease Sale No. 35 of particular concern to plaintiffs and their members. As to the effects of the national program on areas other than the southern California coast, some of plaintiffs, or some of their members, may indeed have standing to raise the issues presented in their complaint. And with respect to these other areas, plaintiffs' claims are not such that they could have been brought in the Morton action. Commissioner v. Sumner, 333 U.S. 591, 597 (1948); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955). Thus, the bar of res judicata does not appear to prevent further litigation as to the claims respecting the national program.

Defendants urge that the national program, apart from particular lease sales, does not present a justiciable "case or controversy." Thus, they urge that the national program of OCS oil and gas leasing has no consequences apart from particular sales. Defendants might be correct in their contention in the event that no sales other than Lease Sale No. 35 were contemplated, or had transpired. Their argument appears, however, to ignore the allegation that other lease sales have or will occur. Assuming that there have been other sales, or that other sales are slated to occur, then it does appear that the national program will have consequences other than Lease Sale No. 35.

Moreover, the argument that a "case or controversy" is not presented by a federal agency's decision to embark on a program of resource development apart from its localized effect appears to have been rejected by courts which have faced the question. See, e.g., [Sierra Club v. Morton], 514 F.2d 856 [5 ELR 20463] (1975), rev'd on other grounds [sub nom. Kleppe v. Sierra Club, 427 U.S. 390], 96 S. Ct. 2718 [6 ELR 20532] (1976). Further, in connection with interpreting NEPA, the Supreme Court appears to have approved of court intervention after an agency has developed a full program. Kleppe v. Sierra Club [427 U.S. 390] 96 S. Ct. 2729 fn. 15 [6 ELR 20532]. Thus, although it is an attractive argument, there appears to be direct countervailing authority to the proposition that a court challenge to a national program is improper apart from particular local action.⁵ Thus, this argument must likewise be rejected. To dismiss with prejudice plaintiffs' claims with respect to the national program on the basis of the doctrine of res judicata or standing, or a combination of the two, appears unwarranted. Thus, the motions to dismiss must be rejected.

At present, the court views the complaint in the instant action as subject to considerable confusion because of the dismissal of plaintiffs' claims insofar as they relate to Lease Sale No. 35. Accordingly, the court has determined that the proper means for further prosecution of the action is dismissal of the complaint, with leave to amend it within 20 days of this date, by deleting claims related to Lease Sale No. 35.⁶

IT IS SO ORDERED.

1. Plaintiffs are the American Littoral Society, the Sierra Club, the Consumer Federation of America, the New England Oil Coalition, the Natural Resources Council of Maine, the Long Island Sound Taskforce, Inc., the Marine Environmental Council of Long Island, and the South Carolina Environmental Coalition.

2. The individual member petroleum companies include Champlin Petroleum Company, Exxon Corporation, Getty Oil Corporation, Gulf Oil Corporation, Marathon Oil Company, Mobil Oil Company, and Texaco, Inc.

3. After transfer, these cases had the following case numbers: Southern California Association of Governments, et al. v. Thomas Kleppe, et al., Case No. CV-76-1185-MML, People of the State of California v. Thomas Kleppe, et al., Case No. CV-76-1186-MML, County of Los Angeles, et al. v. Thomas Kleppe, et al., Case No. CV-76-1187-MML.

4. As the Supreme Court has recently recognized, "an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III." Simon v. Eastern Kentucky Welfare Rights Organization, 96 S. Ct. 1917, at 1925 (1976). Plaintiff organizations in these proceedings thus would appear to lack standing, since they do not allege injury to themselves, and appear to be unable to do so. Plaintiffs' standing is therefore based upon the standing of their members who have been or are likely to be, injured in fact, and thus could have brought suit in their own right. Simon v. Eastern Kentucky Welfare Rights Organization, supra, 96 S. Ct. at 1925; Warth v. Seldin, supra, 95 S. Ct. at 2211.

5. This argument presents two distinct questions which should be distinguished. On the one hand, there is the issue of the propriety of litigating the compliance of the national program of OCS oil and gas leasing apart from particular lease sales. As noted above, the Supreme Court in Kleppe v. Sierra Club, supra, has apparently approved of environmental challenges to national programs apart from their localized particular implementation. On the other hand, there is the issue of whether the program has any consequences whatsoever. If for example, immediately after the announcement of the decision to proceed with the national program, it was decided that there were no appropriate sites, and that the program had to be cancelled, then the national program of OCS leasing would not have any consequences. In this event, there would be no harm to plaintiffs' interests, and the case and controversy requirement would not be met. See, e.g., United Public Workers v. Mitchell, 330 U.S. 575 (1946). Defendants press arguments with respect to both questions. For thereasons discussed above, their contentions must be rejected.

6. Intervenor defendants argue that every other challenge to the national program of OCS oil and gas leasing has occurred in the context of challenges to particular lease sales. This fact alone does not, of course, preclude a challenge to the national program, apart from its implementation in particular sales. However, in the event that litigation concerning the national program is presently ongoing in other jurisdictions, then perhaps this court should, upon proper motion, transfer the remaining claims in this action to those jurisdictions, or for reasons of comity, should stay these proceedings. Upon the filing of an amended complaint and a responsive pleading thereto, these issues can be framed with greater specificity and clarity.