Natural Resources Defense Council, Inc. v. Andrus

No. 1983-73 (448 F. Supp. 802, 11 ERC 1524) (D.D.C. April 14, 1978)

The court rejects the Bureau of Land Management's (BLM's) proposed deviation from compliance with the court's prior order, 5 ELR 20327, for preparing environmental impact statements (EISs) concerning livestock grazing on public lands in 11 western states. BLM sought to reduce by one-half the acreage to be covered by EISs by 1981, arguing that the previously established schedule was unworkable and unreasonable because existing resource data were insufficient and that additional time was needed to do the work. Furthermore, defendants argued that the agencies, not the courts or plaintiffs, are responsible for establishing the timing of EIS preparation. The court, however, finds that argument inapplicable in the context of a request to modify a final court order. Pointing out that defendants have failed to meet every deadline imposed in the prior order, the court also notes that BLM has delayed compliance unreasonably and, for that reason, the public lands are continuing to deteriorate. Therefore, it is necessary to act quickly to abate the continued deterioration of federal rangelands in the absence of convincing proof that additional time is needed to gather resource data. The court adopts plaintiffs' proposed amended final judgment, finding it a reasonable compromise which provides additional flexibility without completely shifting the bulk of EIS preparation to the end of the time schedule. Finally, the court declines to issue guidelines regarding the substantive content of the EISs to be prepared.

Counsel for Plaintiffs
John Roger Beers, Johnanna Wald
Natural Resources Defense Council, Inc.
2345 Yale St., Palo Alto CA 94306
(415) 327-1080

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

Counsel for Defendants-Intervenors Pacific Legal Foundation et al.
W. Hugh O'Riordan, Donald C. Simpson, Albert Ferri
Pacific Legal Foundation, Inc.
1990 M St. NW, Washington DC 20036
(202) 466-2686

[8 ELR 20577]

FLANNERY, District Judge.

This matter comes before the court on the federal defendants' notice of proposed deviation from this court's Final Judgment on June 18, 1975. That judgment established a schedule pursuant to which the Bureau of Land Management (BLM) of the Department of Interior was required to prepare environmental impact statements (EIS's) under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. concerning livestock grazing on public lands in eleven western states. The plaintiffs have accurately summarized the history of this case as follows:

That schedule provided, inter alia, for the completion of one EIS to serve as the model for subsequent statements by the end of Fiscal Year 1976, and for the completion of 10 additional EIS's by the end of Fiscal Year 1977.

Despite the passage of more than three years since this court issued its opinion, the BLM has so far failed to complete a single, adequate EIS concerning livestock grazing. Although it asked for, and received two extensions of time in which to prepare the model statement on livestock grazing in the Challis, Idaho Planning Unit, the final version of that EIS is conceded by it to be inadequate. In addition, none of the EIS's scheduled for completion in Fiscal Year 1977 were issued.

On September 1, 1977, the BLM filed herein its third Notice of Proposed deviation from Scheduled Preparation of Environmental Impact Statements on Livestock Grazing . . . . That document requests this court's approval of a comprehensive revision of the current schedule for EIS preparation. The new schedule, if approved, will delay the completion of EIS's on the majority of the Public Lands, and the identification of needed changes in current management practices for a substantial period of time.

Plaintiff's Summary of the Evidence, at 2-3 (citations and footnotes omitted). Plaintiffs oppose the BLM's proposed deviation and ask this court to reject the proposed schedule and to order BLM to adhere to the existing schedule with modifications to reflect BLM's failure to complete any EIS's in 1977 and a reduction in the number of EIS's to be prepared because of consolidation of [8 ELR 20578] areas under an agreement with the plaintiffs. The plaintiffs also have asked this court to specifically set forth the content requirements of NEPA to be met in the statements.

The current schedule calls for completion of 70 EIS's covering approximately 104,000,000 acres of land (roughly 2/3 of the total) by Fiscal Year (FY) 1981, with completion of another 142 statements by FY 1988 to complete the task. The proposed schedule provides for completion of 45 EIS's covering approximately 54,000,000 acres of land (roughly 1/3 of the total) by the end of FY 1981. Thus, the federal defendants are attempting to reduce, by approximately one-half, the amount of land to be covered by EIS's to be completed by the end of FY 1981. Under the proposed schedule the balance of the EIS's will still be completed by FY 1988.

On December 30, 1974, this court held that NEPA required the BLM to prepare environmental impact statements which analyze the effects of existing and proposed livestock grazing on the resources of specific areas of the public lands. NRDC, Inc. v. Morton, 388 F. Supp. 829 (D.D.C.1974), aff'd, 174 U.S. App. D.C. 77, 527 F.2d 1386 (1975), cert. denied, 427 U.S. 913, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976). In reaching this conclusion, the court stated that "grazing clearly may have a severe impact on local environments" and noted that "damage . . . has occurred . . . from overgrazing and improper land management." 388 F. Supp. at 834. Furthermore, in 1975 this court observed that:

Over the past four years the BLM has shown relatively slow progress in implementing a thorough management planning system which would assist in protecting the environment. . . . Thus, in a substantial sense there is a serious threat of injury to the public lands which lends urgency to plaintiff's claims.

388 F. Supp. at 836. In its opinion this court cited the findings of the Council on Environmental Quality (CEQ), in its first annual report in 1970, that much of thepublic lands were "in desperate condition." 388 F. Supp. at 840; see CEQ, Environmental Quality 182 (1970). The court noted that the situation had not been rectified as of December, 1974. In a Report to the Congress on July 5, 1977, the Comptroller General of the United States found continuing deterioration of the public rangelands and recommended better management by the BLM. This deterioration has continued while the federal defendants have failed to meet every deadline thus far imposed by this court's Final Judgment of June 18, 1975.

On January 13, 1978 the court held an evidentiary hearing on the federal defendants' proposed deviation. After that hearing the parties submitted memoranda summarizing the evidence and the legal issues, as well as proposed orders. The thrust of the federal defendants' argument in support of its proposed deviation is that the existing schedule is unreasonable and unworkable because existing resource data concerning the lands is insufficient and additional time is necessary to gather new information. Furthermore, the federal defendants assert that cost and time considerations necessitate the requested modifications. Plaintiffs' position, to briefly summarize, is that the existing schedule, which was an agreement drafted by the parties and entered by this court with their consent, was a reasonable compromise and can be met with less drastic revisions than those proposed by the federal defendants. Plaintiffs contend that the reason advanced by the BLM for the requested delay are insufficient, that the delays up to this point are the result of mismanagement by the BLM in preparation of the EIS's, and that even assuming that additional data and planning are necessary, the EIS's could be prepared more rapidly than proposed.

BLM argues that federal agencies, not courts or plaintiffs in environmental lawsuits, are responsible for deciding the timing of the preparation of EIS's. This argument, however, neglects the fact that preparation of these statements was ordered by this court and the schedule negotiated by the parties was entered as a final judgment in a civil action. This is not a matter of first impression before the court on review of an administrative determination. The defendants are seeking to modify a final judgment of this court.

In regard to the reasonableness of the existing schedule, two factors are crucial to any determination made by this court. First, in 1974 this court found that "it is clear that the BLM has delayed beyond reason" in the preparation of EIS's. 388 F. Supp. at 836. Second, as was indicated above, due to BLM's failures, the public lands are continuing to deteriorate. Despite these findings, the BLM now seeks to totally reorganize the EIS preparation schedule and reduce, by approximately one-half, the amount of acreage to be covered by EIS's to be completed by the end of FY 1981.

In support of their proposed schedule, the federal defendants assert that the additional time is necessary in order to integrate the preparation of livestock grazing EIS's into the BLM land use planning process and to collect additional resource information. To the extent that the failure to grant defendants' request will interfere with BLM's long-term, land use planning process, the interference must be balanced against the need for BLM to act quickly to abate the deterioration of the rangelands. As to the data deficiency issue, it is not clear that additional time is necessary for the collection of resource information. Plaintiffs persuasively suggest that effective EIS's can be prepared based on existing data and to the extent necessary, additional data can be collected and the statements prepared in less time than that requested by the BLM.

The BLM also asserts that it lacks the time, money, and manpower to meet the existing schedule. Plaintiffs have shown, however, that despite the fact that the BLM has expended substantial sums of money and manpower up to now, there has been "an outstanding want of coordination and lack of rpogress toward completion of the required FY 77 EIS's." Plaintiffs' Summary of the Evidence, at 7-9. Furthermore, this court noted in 1974 that:

The court is aware that, like many agencies, the BLM has been given large scale tasks to be accomplished with limited manpower. That does not mean, however, that the agency may ignore or pay mere lip service to the NEPA requirements.

388 F. Supp. at 840-41. Simply stated, with this court's stimulation, the BLM must work to achieve all that it hoped to accomplish under the revised schedule in less time. See NRDC v. Train, 166 U.S. App. D.C. 312, 332, 510 F.2d 692, 712 (1974). The court will, however, give the defendants some relief from the schedule.

Plaintiffs' proposed amended final judgment appears to be a reasonable accommodation which grants the BLM additional time without completely shifting the bulk of the EIS's to the end of the schedule. Plaintiffs propose that: (1) in fiscal years 1978 and 1979, EIS's shall be prepared as specified by the federal defendants in Exhibit A to their notice of proposed deviation; (2) in fiscal years 1980 through 1982, the federal defendants shall prepare EIS's on public land acreages which total the respective, yearly acreages in the current EIS schedule for fiscal years 1979 through 1981; and (3) during fiscal years 1983 through and including 1988, all of the EIS's remaining to be prepared shall be completed at a yearly rate of at least 14% of the total.

One additional issue remains. In their proposed amended judgment, plaintiffs seek to have this court impose specific substantive standards to be met in the preparation of the EIS's. Plaintiffs contend that the admitted inadequacy of the Challis EIS, which was to serve as a model EIS under the original judgment, necessitates the imposition of standards. The Challis EIS is the only statement to be "completed" at this time and when it was filed it contained [8 ELR 20579] a "Note to Reviewers" stating that it will be supplemented and that no action will be taken based on it until it is supplemented. Filing incomplete statements to be supplemented later is a practice to be avoided. W. Rodgers, Environmental Law § 7.7, at 774 (1977). Although the Challis EIS is clearly another BLM failure, it would not be appropriate for this court to become involved in establishing content requirements for the EIS's.

This matter is presently before the court on the federal defendants' notice of proposed deviation from this court's final judgment. The only issues before the court are scheduling matters. Review of the adequacy of the statements should be properly left to separate actions when the statements are completed and final. Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 2730, 49 L. Ed. 2d 576 (1976); W. Rodgers, Environmental Law § 7.9, at 791 (1977). Even the Challis statement is not final at this point because the BLM is supplementing it and no action will be taken based on the EIS until it is supplemented, but the court will order that it be supplemented by the end of FY 1978 and plaintiffs may seek judicial review of the adequacy of its content in a separate action when it is supplemented. In the absence of final agency action on the EIS's, this court lacks jurisdiction to determine the content necessary for the EIS's to be in compliance with NEPA. Kleppe v. Sierra Club, supra, 96 S. Ct. at 2730; see Eccles v. Peoples Bank, 333 U.S. 426, 434, 68 S. Ct. 641, 92 L.Ed. 784 (1948); Coalition for Safe Nuclear Power v. A.E.C., 150 U.S. App. D.C. 118, 119, 463 F.2d 954, 955 (1972); Lee v. Resor, 348 F. Supp. 389, 396 n.27 (M.D.Fla.1972). Therefore, the court will not include the provisions proposed by the plaintiffs concerning the content of the statements to be prepared in the amended final judgment.

Finally, defendants-intervenors Pacific Legal Foundation and Public Lands Council, Inc. requested that this court call a meeting of all parties and expert witnesses for the purpose of discussing an agreement as to standards for the EIS's. Defendants-intervenors shared plaintiffs' and this court's concern over the possible delay in the preparation of EIS's under the federal defendants' proposed deviation. Therefore, they joined in plaintiffs' request that the court require that the BLM comply with a realistic schedule. Defendants-intervenors opposed, however, plaintiffs' attempt to establish guidelines concerning the content of the EIS's. Instead, defendants-intervenors suggested that the court call a meeting of all the parties and various experts for the purpose of discussing and reaching an agreement on the content of the statements. Because the court has determined that any action by this court concerning standards as to the content of the statements would be premature at this point, the court will deny defendants-intervenors' request for a meeting. The court will, however, recommend that the BLM receive input from the plaintiffs, defendants-intervenors, and other experts on the question of the content of the EIS's. Furthermore, the BLM also should seek recommendations from these groups concerning improvements in the BLM's EIS preparation process.

ORDER

Therefore, in accordance with the memorandum above, it is, by this court, this 14th day of April, 1978,

ORDERED that the Amended Final Judgment accompanying this Memorandum and Order be entered and amend and supersede this court's Final Judgment of June 18, 1975.

Amended Final Judgment

This matter originally came before the court on the cross-motions of plaintiffs, federal defendants, and defendants-intervenors for summary judgment. On December 30, 1974, this court issued its Memorandum Opinion and Judgment in which it granted plaintiffs' motion for summary judgment and denied those of the federal defendants and the defendants-intervenors. In that Judgment, the court determined, inter alia, that the federal defendants were required by § 102(2) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., to prepare environmental impact statements (EISs) which discuss in the environmental effects of livestock grazing, and alternatives thereto, on specific areas of the public lands under the jurisdiction of the Bureau of Land Management (BLM) which are or will be authorizedfor such use. By agreement, dated April 11, 1975, plaintiffs and the federal defendants agreed upon a schedule for the preparation of the EISs required by such order and on June 18, 1975, the court entered the Final Judgment (supplementing the Judgment of December 30, 1974) embodying the terms of that agreement.

Subsequently, the federal defendants proposed a material deviation in the agreed-upon schedule, and pursuant to paragraph 12 of the Final Judgment, filed herein a Notice of Proposed Deviation from Scheduled Preparation of EISs on Livestock Grazing. Plaintiffs and the defendants-intervenors opposed the federal defendants' proposal. An evidentiary hearing was held on the proposed deviation and memoranda, affidavits and exhibits were filed by the parties. Upon review of these matters and good cause appearing therefor, it is, by this court, this 14th day of April, 1978,

HEREBY ORDERED, ADJUDGED and DECLARED that:

1. The Final Judgment of this court, entered June 18, 1975, is hereby amended and superseded. This amended Final Judgment is issued by the court as a means for full and complete compliance with the aforesaid Judgment of December 30, 1974.

2. The BLM shall cause to be prepared, publicly circulated, and considered in its decision-making process as required by law, EISs concerning the environmental effects of livestock grazing activities (hereinafter defined) on the public lands of the United States described in paragraph 3, infra. Such EISs shall comply with NEPA in all respects and shall be considered to be completed when filed with the Council on Environmental Quality and notice of the same is published in the Federal Register.

3. An EIS shall be completed for each of the 153 specific geographical areas of the public lands which the federal defendants have demarcated for such purpose. These areas, approximating 171,801,000 acres, are identified in Exhibit B to their Notice of Proposed Deviation filed herein on September 1, 1977.

4. A supplement to the final EIS on the Challis Planning Unit, Salmon District, Idaho (which was issued by the BLM on January 10, 1977) shall be completed by the end of Fiscal Year 1978. This supplement shall be prepared, circulated and considered in accordance with all requirements of NEPA.

5. All future EISs, including the supplement to the Challis statement, shall be issued in accordance with the following schedule:

(a) in fiscal years 1978 and 1979, EISs shall be prepared as specified by the federal defendants in Exhibit A to their Notice of Proposed Deviation;

(b) in fiscal years 1980 through 1982, the federal defendants shall prepare EISs on public land acreages which total the respective, yearly acreages specified in the current EIS schedule for fiscal years 1979 through 1981. Within 90 days the federal defendants shall submit a plan to this court and the parties which specifies the particular areas to be covered during these years and the order in which they will be covered;

(c) during fiscal years 1983 through and including 1988, all of the EISs remaining to be prepared shall be completed and they shall be completed at a yearly rate of at least 14 percent of the total, cumulative minimum, and provide further, that notice of land descriptions and the number of EISs to be completed each year, beginning in 1982, shall be published in the Federal Register at least 60 days prior to the beginning of each such year.

6. Each EIS contemplated by this Order [8 ELR 20580] shall discuss in detail "livestock grazing activities" and all reasonable alternatives thereto. "Livestock grazing activities" as used in this Order shall mean all existing or proposed livestock grazing, all grazing use authorizations issued or contemplated to be issued by the BLM as well as those substantial activities which are supportive of and related to livestock grazing administered by the BLM, such as fencing, livestock water development, spraying, chaining, seeding, and brush removal. The procedures and methodology for the preparation of EISs as specified in this subparagraph, are by this court's order to be left for initial determination by the federal defendants.

7. The BLM shall not implement any Allotment Management Plan (AMP) or its equivalent prior to the completion of an EIS covering such AMP, and, further, until an appropriate EIS is completed, the BLM and the federal defendants shall adhere to the current policy of limiting authorizations for livestock grazing on any given area to an annual authorization basis, to the extent allowed by law.

8. If the federal defendants, in good faith, believe the circumstances require deviations from the EIS completion schedule and procedures as contemplated by this Order, such deviations can be made by the BLM if they are "immaterial deviations," as defined hereinafter; provided that, notwithstanding that the federal defendants need not seek from the court or the plaintiffs consent or approval to make immaterial deviations, the BLM shall nonetheless advise the plaintiffs in writing of such deviations as they occur.

9. If the federal defendants believe, in good faith, that circumstances dictate that any material deviations must be made, then in that event, the federal defendants shall give Notice to this court wherein a detailed explanation shall be made of the deviation which is anticipated to occur together with the reason(s) therefor. This Notice shall be filed prior to the anticipated implementation of such deviation, and contemporaneously a copy of such Notice shall be sent by registered mail to all parties to this action (No. 1983-7) and such Notice shall be published in the Federal Register. Thereafter, if objections are filed with the court within 30 days from the date of publication in the Federal Register, the federal defendants and the objecting parties may make such motions and present evidence to the court as to them seems proper, and the court shall determine if such deviations shall be allowed to occur or make any other appropriate order; provided, however, that if no objections are filed with the court within such 30-day period, the BLM shall be authorized to implement such deviation.

10. The term "immaterial deviation" for the purpose of this Order shall mean any change or deviation from the terms and conditions of this Order which have any of the following effects:

(1) To reduce the number of acres to be covered by EISs during any of the first five years as described in subparagraphs 5a and 5b, supra, by less than 10,000,000 acres cumulatively, but provided that such reduction shall include not more than 2,000,000 acres in any one year.

(2) To reduce the number of EISs to be completed during any of the first five years as described in subparagraphs 5a and 5b, supra, by less than three EISs cumulatively, but provided that such reduction shall include not more than one EIS in any one year, and further provided that any EISs scheduled for completion during the first five years which remain to be completed at the close of that period will be completed in the succeeding year.

(3) To reduce the number of EISs scheduled for completion during the years after the first five years by two or less in any one year; but provided that any EISs remaining to be completed at the end of FY 1988 will be completed in the succeeding year.

11. This Order shall in no way foreclose or affect any contentions, claims or rights of judicial review which plaintiffs may have concerning the compliance with NEPA, in any respect, of any given EIS completed pursuant to this Order. IT IS SO ORDERED.