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CHAMBER OF COMMER. OF THE UNITED STATES v. DOI

November 3, 1977

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, Plaintiff,
v.
DEPARTMENT OF THE INTERIOR et al., Defendants


Pratt


The opinion of the court was delivered by: PRATT

This is the latest of several actions filed in this Court to challenge agency submissions of legislative proposals to Congress on the ground that the proposals were not accompanied by adequate environmental impact statements, as required by section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). See Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 431 F. Supp. 722 (D.D.C. 1977); Wingfield v. OMB, 10 ERC 1961 (D.D.C. 1977), appeal docketed (D.C. Cir. Apr. 4, 1977).

 Plaintiff's motion is for declaratory and injunctive relief. For the reasons given herein, the motion for declaratory relief, and for injunctive relief of both temporary and permanent character, is denied.

 I. BACKGROUND.

 The plaintiff, Chamber of Commerce of the United States of America (Chamber) a non-profit District of Columbia corporation, is the largest association of business enterprises in the United States. Its direct membership encompasses in excess of 65,000 businesses of different sizes, and more than 3,700 state and local Chambers of Commerce and similar groups. The Chamber has advanced its position on environmental issues both before the Congress and in the courts.

 The origins of its action here are in the portions of the Alaska Native Claims Settlement Act of 1971, 43 U.S.C. §§ 1601 et seq. (Supp. V 1975), which promulgate procedures for establishing the status of federal lands in Alaska not committed to Native corporations or reserved for special purposes. Comprising approximately 365 million acres, Alaska is the largest state of the Union. Of the approximately 215 million acres remaining in federal ownership, about 75 million are already part of the so-called four national-interest systems: National Park, National Forest, National Wildlife Refuge, and the National Wild and Scenic Rivers Systems. Section 17(d)(1) of the Alaska Native Claims Settlement Act (ANCSA) provided that, during the 90 days following passage of the Act, all unreserved federal lands in Alaska automatically would be withdrawn from "all forms of appropriation under the public land laws," including mining and mineral leasing laws. 43 U.S.C. § 1616(d)(1). Section 17(d)(2)(A) directed the Secretary of the Interior to withdraw up to 80 million acres of unreserved federal land for study to determine whether the lands should be included in the national-interest systems. Id. § 1616(d)(2)(A). Over the two-year period following passage of the ANCSA, the Secretary was to forward recommendations to the Congress on which of the withdrawn lands should be included in the national-interest systems. Id. § 1616(d)(2)(C), (D).

 On December 17, 1973, then Secretary Morton submitted proposals pursuant to section 17 (d)(2) recommending that 83.47 million acres be added to the national-interest systems. Known as the "Morton proposals," these recommendations were based on draft environmental impact statements (EIS), which were the subject of extensive public comment between then and 1975, when the Final EIS's containing 16,800 pages were issued in their 28-volume final form. In March 1975, the Secretary forwarded new recommendations, based on the Final EIS's, and altering both the acreages to be included in the national-interest systems and the procedures for management of these lands. Congress took no final action on either set of recommendations.

 In January 1977, Congressman Udall of Arizona, upon his own initiative, introduced a bill identified as the vehicle by which the House of Representatives would consider additions to the Alaska national-interest systems. H.R. 39, 95th Cong., 1st Sess. *fn1" As drafted, the bill would add about 116 million acres, as either new units or extensions of existing units, to the four Alaska national-interest systems. In April 1977, defendant Andrus, the incumbent Secretary of the Interior, testified before a subcommittee of the House Committee on Interior and Insular Affairs to the effect that H.R. 39 was under study within the Department of the Interior, and that the Department's response to the bill would be forthcoming in August or September 1977. By letter of August 2, 1977, Committee Chairman Seiberling requested Secretary Andrus to submit the Department's views to the Committee by September 9, 1977, and to testify before the Committee on September 15, 1977.

 On September 14, 1977, plaintiff appeared before this Court to request a temporary restraining order to prevent the Secretary from submitting the Department's views to the Committee and giving testimony thereon. The motion was denied.

 The Secretary testified as scheduled, and presented the Department's recommendations as to H.R. 39. In summary, they would place about 92 million acres of Alaska lands into the four systems: about 41.7 million acres in new and existing National Parks and Monuments areas, 45.1 million acres in National Wildlife Refuges, 33 rivers totalling 2.45 million acres in the National Wild and Scenic Rivers System, and 2.5 million additional acres to existing National Forests. In developing the so-called Andrus proposals, the Department reviewed both the Morton proposals and the bills before the House of Congress, prepared an option paper, and forwarded ensuing recommendations to the Office of Management and Budget. A few questions which could not be resolved by interagency consultation within the OMB were presented to the President for decision. During the summer of 1977 the Congressional committees responsible for the pending bills held hearings in Alaska and the contiguous 48 states to solicit public response in the form of testimony and comments on the bills. However, the Department prepared nothing in the form either of an additional EIS on the Andrus proposals or of a "negative determination" that an EIS would not be required in this context.

 Plaintiff's challenges to the process by which the Andrus proposals were developed and submitted to Congress are numerous. Among the legislative and administrative strictures the plaintiff asserts the Department's actions to have violated are NEPA itself, 42 U.S.C. § 4332(2)(C); a Presidential directive regarding federal agency implementation of the NEPA requirements, Exec. Order No. 11,514, 35 Fed. Reg. 4,247 (1970), reprinted in 42 U.S.C. § 4321 app., at 10,658; the Council on Environmental Quality regulations on the subject, CEQ Guidelines on Preparation of Environmental Impact Statements, 40 C.F.R. § 1500.5(a)(1) (1976); the Department's own manual, "Statement of Environmental Impact," par. 516, ch. 2.5.A(1), reprinted in 36 Fed. Reg. 19,343, 19,344 (1971), and other statutes such as the Federal Land Policy and Management Act of 1976, 43 U.S.C.A. § 1782(a) (Supp. 1977). The defendants' position has been that the Andrus proposals are an elaboration on the earlier Morton proposals and therefore not "proposals for legislation" under section 102(2)(C) of NEPA; that the EIS prepared in connection with the Morton proposals treats adequately the provisions of the Andrus proposals with a few minor exceptions and therefore there has been substantial compliance with NEPA; that the Andrus proposals were in response to a Congressional initiative, and thus not subject to NEPA; that the plaintiff lacks standing to bring the action, and that the relief sought cannot be granted.

 The disposition of this action on grounds of lack of standing to sue obviates consideration of plaintiff's substantive assertions that the Department's actions violate NEPA. However, a few observations on the merits are in order. First, many of the factors that render this action not justiciable because of lack of standing also would militate against a decision on the merits for the plaintiff. For example, the very speculativeness of the injury plaintiff alleges also would limit plaintiff's ability to satisfy the requirement of irreparable injury for injunctive relief. That the asserted injury is not redressable by injunctive relief weighs against the plaintiff in terms of both justiciability and the availability of injunctive relief. Second, the evidence in the record raises substantial doubts as to the plaintiff's likelihood of success on the merits. The Government has argued at least colorably that the Andrus proposals are not, in fact, "proposals for legislation," but responses to Congressional requests for comments and therefore beyond the ambit of NEPA. Moreover, to the extent that the ...


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