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NATURAL RESOURCES DEFENSE COUNCIL v. ANDRUS

April 14, 1978

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
CECIL D. ANDRUS, et al., Defendants, PACIFIC LEGAL FOUNDATION, et al., Defendants-Intervenors



The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, UNITED STATES 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.

 Plaintiffs' 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 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 the public 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 reasons 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 ...


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