Bennett Hills Grazing Association v. United States

No. 79-4397 (9th Cir. July 18, 1979)

The Ninth Circuit Court of Appeals vacates a district court's order that enjoined the Bureau of Land Management (BLM) from proceeding with preparation of a final environmental impact statement (EIS) on the federal grazing program until plaintiffs had 90 days in whith to comment on BLM's draft EIS. Relying on Kleppe v. Sierra Club, 6 ELR 20532, and Vermont Yankee Nuclear Power Corp. v. NRDC, 8 ELR 20288, the court emphasizes the absence of a justification for interlocutory judicial intervention and the failure to show that judicial review after preparation of the final EIS will be inadequate as a matter of law. The cause is remanded with instructions to dismiss without prejudice to appellees' right to challenge the action on the merits.

Counsel for Plaintiffs-Appellees
Wilbur T. Nelson
Nelson & Westberg
733 N. 7th St., P.O. Box 2836, Boise ID 83701
(208) 336-5200

Counsel for Defendants-Appellants
Jeffrey Ring, Ass't U.S. Attorney
550 W. Fort St., Boise ID 83702
(208) 384-1211

Martin Green
Appellate Section, Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2827

Counsel for Amici Curiae
Lloyd E. Haight
Quane, Smith, Howard & Hull
Idaho First Plaza. P.O. Box 519, Boise ID 83701
(208) 345-0960

Johanna H. Wald, Roger Beers
Natural Resources Defense Council, Inc.
25 Kearney St., San Francisco CA 94108
(415) 421-6561

Mountain States Legal Foundation
1845 Sherman St., Denver CO 80203
(303) 861-0244

Before ELY, GOODWIN and TANG, Circuit Judges.

[9 ELR 20660]

ORDER

The government appeals from the district court's order enjoining the Bureau of Land Management from proceeding with the preparation of a final environmental impact statement until plaintiffs have had ninety (90) days in which to comment on the Bureau's draft statement. We have expedited the appeal on the government's emergency motion.

The Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976) and Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., 435 U.S. 519, 525, 98 S. Ct. 1197, 55 L.Ed.2d [9 ELR 20661] 460 (1978) counseled the courts not to interfere with an agency's proceedings before the agency renders its decision. Plaintiffs present no exceptional facts which would justify interlocutory judicial intervention by the district court here. The Bureau of Land Management solicited comments on the draft statement in accordance with the time schedule suggested by the applicable regulation, 40 C.F.R. § 1500.9(f). The BLM time limitations were deemed necessary to permit the BLM to comply with the order of the District Court for the District Court of Columbia in Natural Resources Defense Council, Inc. v. Andrus, 448 F. Supp. 802 (1978). See also Natural Resources Defense Council 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) (prior decision in the same action).

Plaintiffs have not shown that judicial review after the preparation of the proposed environmental impact statement will be inadequate as a matter of law.

The injunction and related orders of the district court are vacated and the cause is remanded to the district court with instructions to dismiss the action without prejudice to such judicial review as may be appropriate upon completion of final agency action. At this time we express no opinion on the merits of the controversy.

Vacated and remanded. The mandate will issue now. No petition for rehearing will be entertained. See Fed.R.App.P. 2.