areas as watershed maintenance and soil conservation.
The Bureau's management of the public lands is carried out at three levels or stages of intensity. About 7 million acres are, and will continue to be, managed in a merely custodial fashion due primarily to their scattered and isolated locations. Approximately 108 million acres are administered in a fashion the BLM describes as "the best management attainable within the limits of manpower and funding." It is, however, the goal of the BLM to bring 133 of the 171 million acres of public lands under the third category of management -- intensive management -- by the year 2000. Currently, however, only 25 million acres (18 percent) are under intensive management.
The 52 BLM grazing districts are the agency's basic management component. The procedures which these districts follow for administering an area under intensive management are rather involved. Each district is divided into planning units and a unit resource analysis (URA) containing a detailed inventory of resources is prepared for each one. After public comment, a land use plan called a management framework plan (MFP) containing a set of "goals, objectives, and constraints" is prepared for each planning unit. Once the MFP is completed, more specialized plans known as program activity plans are prepared for each type of resource-related activity, such as timbering, recreation and grazing, in the unit. An activity plan is designed to lay out in detail how the particular activity will comport with the objectives and constraints of the management plan for that particular unit. The program activity plan for grazing is called an allotment management plan (AMP). A planning unit may contain a number of grazing allotments. It is estimated that the program, continued under present trends, will result in the implementation of 8,230 AMP's (total projected need) by the year 2000.
Approximately 1,015 AMP's were implemented prior to July 1973 and another 200 were pending at that time. Before any AMP or other activity plan is implemented it is first determined whether an environmental impact statement is required for the plan. It is against the background that the court must examine the BLM's compliance with NEPA.
The National Environmental Policy Act
Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332 (1970), requires that a detailed environmental impact statement (EIS) be prepared for every major federal action significantly affecting the quality of the human environment. This rather general legislative language has been explained and interpreted in guidelines published by the Council on Environmental Quality (CEQ), the agency established by NEPA to serve as a research, resource, and advisory body to the President. See Preparation of Environmental Impact Statements: Guidelines, 40 C.F.R. § 1500 et seq. (1974). The CEQ Guidelines provide that the environmental assessment should be made as early as possible, and in all cases prior to agency decision concerning recommendations or favorable reports on proposals for major federal actions significantly affecting the environment. 40 C.F.R. § 1500.2(a) (1974). These Guidelines apply both to new and continuing projects. Id. § 1500.5(2).
The BLM has prepared a draft programmatic EIS for its entire livestock grazing program. See Bureau of Land Management, Draft Environmental Impact Statement, Livestock Grazing Management on National Resources Land (March 1974). The BLM contends that this statement will provide an overview of the cumulative impact of the grazing program and will serve as the foundation for subsequent environmental analyses and for supplemental impact statements which may be prepared for smaller land areas or on an individual basis for specific grazing management actions.
The BLM does not indicate, however, under what circumstances it will be necessary to prepare supplemental statements.
Plaintiffs contend that the BLM has failed to comply with the provisions of sub-paragraph (C) of section 102(2) of NEPA in that they have issued and renewed grazing permits in each year from 1970 to the present, and proposes to continue doing so, without preparing an EIS dealing with the actual environmental impact of such actions. Plaintiffs argue that the overall programmatic EIS for grazing does not suffice since it fails to consider the individualized, "on the ground" effects on local environments. They ask that the court declare the actions of the BLM to be violations of NEPA and seek an order establishing a cut-off date for the preparation of appropriate EIS statements. It should be noted that plaintiffs do not seek to enjoin the present issuance of licenses nor do they ask that impact statements be prepared for every license or permit. They ask rather that detailed individual statements be prepared on an appropriate district or geographic level to assess the actual impact of the issuance of federal grazing permits on local environments.
The Taylor Grazing Act
The responses of the federal defendants and the defendants-intervenors differ significantly. Defendants-intervenors argue that NEPA does not require impact statements with regard to the licensing of public lands for grazing since the Taylor Grazing Act, 43 U.S.C. § 315 et seq. (1970), which established the licensing program is an operative and effective method of protecting the environment of the public lands, and to superimpose NEPA on the Taylor Act would substantially interfere with the enforcement of the latter. Defendants-intervenors further argue that the BLM rules, regulations and administrative procedures protect the environment and should apparently be considered the functional equivalent of an impact statement. As support for this argument they cite Portland Cement Association v. Ruckelshaus, 158 U.S. App. D.C. 308, 486 f.2d 375 (1973), in which the Court of Appeals for the District of Columbia partially exempted the Environmental Protection Agency (EPA) from the NEPA requirements. In doing so, however, the court took pains to point out that a very narrow exemption was being established for EPA determinations under section 111 of the Clean Air Act, 42 U.S.C. § 1857c-6 (1970), as amended (Supp. II, 1972). Id. at 387. This exemption clearly does not extend to the Taylor Grazing Act. An analogy of the Taylor Act to NEPA is invalid since the Taylor Act is not purely an environmental act, but was designed both to stop injury to the public domain by unregulated grazing and to promote stabilization of the livestock industry. See LaRue v. Udall, 116 U.S. App. D.C. 396, 324 F.2d 428, 430 (1963), cert. denied, 376 U.S. 907, 11 L. Ed. 2d 606, 84 S. Ct. 660 (1967); United States v. Hatahley, 220 F.2d 666, 671 (10th Cir. 1955), modified, 351 U.S. 173, 76 S. Ct. 745, 100 L. Ed. 1065 (1956). To call the Taylor Grazing Act purely environmental is to ignore its language and its history.
NEPA and the Grazing Program
Defendants-intervenors also contend that NEPA does not apply to the BLM licensing program since the program will not significantly affect the quality of the human environment and does not constitute major federal action. However, the statutory phrase "actions significantly affecting the quality of the environment" is intentionally broad, "reflecting the Act's attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency." Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079, 1088 (1973). The term "actions" refers not only to actions taken by a federal agency but also to decisions made by the agencies, such as the decision to grant a license, which allow another party to take an action affecting the environment. Id. at 1088-89; see 40 C.F.R. § 1500.5(a)(2) (1974). Whether the granting of a single license requires the filing of an impact statement depends not upon the size of the geographical area affected, but on the nature and severity of the impact. Cf. Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973) (construction of federal office building); Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 36 L. Ed. 2d 974, 93 S. Ct. 2290 (1973), (construction of federal correctional facility). Grazing clearly may have a severe impact on local environments. Moreover, in some states the BLM administers a huge proportion of the state's acreage. In Nevada, for example, 86 percent of the total area of the state is administered by the BLM
and the record illustrates the damage that has occurred there from overgrazing and improper land management. See generally, Bureau of Land Management, Effects of Livestock Grazing on Wildlife, Watershed, Recreation and Other Resource Values in Nevada (April 1974). The court is therefore persuaded that the grazing permit program produces significant impacts on individual locales. And when the cumulative impact of the entire program is considered it is difficult to understand how defendants-intervenors can claim either that the impact of the program is not significant or that the federal action involved is not major.
Federal defendants, unlike defendants-intervenors, concede that NEPA applies to the BLM grazing program but argue first that plaintiffs' suit is premature and should await issuance of the final programmatic impact statement,
and second that the Bureau is not in violation of the Act since the programmatic impact statement sufficiently complies with the intent of NEPA.
Exhaustion of Administrative Remedies
Federal defendants urge that plaintiffs' suit is not timely since under the doctrine of exhaustion of administrative remedies the BLM should have an opportunity to prepare an EIS which it believes satisfies NEPA's requirements before plaintiffs may seek court action. In support of this contention federal defendants cite Coalition for Safe Nuclear Power v. AEC, 150 U.S. App. D.C. 118, 463 F.2d 954 (1972), and Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731 (D. Conn. 1972). In Coalition for Safe Nuclear Power the court rejected as premature plaintiffs' request for injunctive relief against construction of a power plant pending full NEPA review. The court indicated that exhaustion of agency proceedings was normally required and remanded for specific hearing by the agency within 60 days. This court agrees with plaintiffs, however, that the case is inapposite, since the AEC provided a specific hearing procedure which does not exist in the present case. See id. at 955-56. Moreover, there is merit to the observation of the court in Natural Resources Defense Council, Inc. v. Tennessee Valley Authority, 367 F. Supp. 122 (E.D. Tenn. 1973), that it is doubtful whether there is a true administrative remedy available to private individuals under NEPA. Id. at 130-31. The court stated:
"There only exists the right to comment and express one's views, a right which a person always has. We are, therefore, of the opinion that the exhaustion of the administrative remedies doctrine has no application under the facts of this case." Id.
See also Minnesota Environmental Control Citizens Association v. AEC, 4 ERC 1876, 1878 (D. Minn. 1972). The court finds federal defendants reliance on Committee to Stop Route 7, supra, equally misplaced since plaintiffs do not quarrel with the content of the programmatic EIS, nor do they seek to have the court inject itself in its preparation. Plaintiffs instead contend that the proposed statement, even if an excellent programmatic EIS, is insufficient standing alone. They argue that they need not await a final version of the impact statement since it is not review of the specifics of the final agency programmatic statement which they seek, but a declaration that a programmatic statement does not comply with the law. The court is in agreement with this analysis of the complaint.
Moreover, the rationale of the doctrine of exhaustion of remedies is to allow the agency time to complete its assigned duties before judicial intervention is countenanced. The Court of Appeals for this Circuit, in considering the relation of the notice provision of the Federal Water Pollution Control Act
to the requirement of exhaustion of administrative remedies stated:
"Sound discretion bids a court stay its hand upon petition by the Administrator where there is reason to believe that further agency consideration may resolve the dispute and obviate the need for further judicial action. However, . . . the court may promptly proceed to the merits of the action when it is confident or becomes confident that agency recourse is futile, as where the agency's position is firm." Natural Resources Defense Council v. Train, 510 f.2d 692 (D.C. Cir., Dec. 5, 1974), slip op. at 20.