The plaintiffs charge that the 1983 decision of the Interior Secretary was impermissibly tainted by political considerations. While the record shows that there was intense lobbying and political activity exercised by parties both in support of as well as opposed to phosphate mining in the Osceola Forest, there is no hard credible evidence to support such a charge. Further, the sequence of events and developments prior to the Secretary's action do not support much less compel an inference that political considerations or factors unduly influenced his decision in any manner.
Plaintiffs refer to several memoranda, between employees of the executive branch in late 1982 and early 1983 as evidence of political interference and taint (K-M Exs. 45-49). The exhibits have been reviewed and considered and when considered along with other relevant portions of the record, do not support the plaintiffs' claims.
In the more than 12-year lapse of time when plaintiffs first filed their lease applications to January 1983, there were unresolved disputes about relevant and basic technical issues necessary to a final decision. Disputes were found within the units of the Departments of Interior and Agriculture, the agencies which had the responsibility of helping to decide the question as to whether phosphate strip mining could be consistent with the primary purposes behind the acquisition and development of the Forest, and equally important -- whether technologies were developed and available which would allow restoration of the land. The disputes were found principally between those agencies responsible for mineral exploitation and development -- the Geological Survey Service and Minerals Management Service and those responsible for resource management protection -- the Forest Service, the Fish and Wildlife Service. The latter consistently took the position that phosphate strip mining would lay waste portions of Osceola Forest and that technologies did not exist to allow post-mining restoration of the Forest. This proposition and supporting evidence were advanced in the 1974 Final Environmental Statement and the 1979 Final Supplemental ES. Further, in early 1980 and 1981, the incumbent Secretaries of the Agriculture Department re-emphasized the position of the Forest Service that technologies did not exist to restore the Forest consistent with its purpose. But later in 1981, statements began to surface from responsible spokesmen in Agriculture and representatives of the Environmental Protection Agency began to make statements that technologies were becoming available to restore the Forest. (K-M Exs. 89-91.)
The Osceola National Forest is predominately acquired land and was purchased by the federal government for special purposes. As such, it is accorded a protective status. The primary purposes for which it is being administered by the Forest Service include timber production, water shed protection, recreation, and fish and wildlife. 16 U.S.C. § 528. The Weeks Act of 1911, under which the Forest was purchased, gave the Secretary of Agriculture authority to recommend lands for purchase "as in his judgment may be necessary to the regulation of the flow of navigable streams or for the production of timber. . . ." 43 Stat. 654 (1924) (emphasis added). The National Forest Preservation Commission, created by the Congress, with instructions to prepare acquisition reports under the Weeks Act, recommended purchasing the lands which became the Osceola National Forest. The Commission's report emphasized timber production and water shed protection, as well as recreation and wildlife, as the primary purposes of the acquisition. National Forest Preservation Comm'n., Sen. Doc. No. 44, supra slip op. p. 3.
The basic purposes of national forest lands are also found in the Organic Administration Act of 1897, through which Osceola National Forest was created. The Act provided that "no national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber. . . ." 16 U.S.C. § 475. The Supreme Court had occasion to consider the Organic Act and its legislative history in United States v. New Mexico, 438 U.S. 696, 57 L. Ed. 2d 1052, 98 S. Ct. 3012 (1978). It concluded: "Congress intended national forests to be reserved for only two purposes -- 'to conserve the water flows, and to furnish a continuous supply of timber for the people.'" Id. at 707 (quoting 30 Cong. Rec. 967 (1897)).
Nowhere in the substantial legislative history of the purposes of the national forests in general or the Osceola National Forest in particular, is there included a reference to mineral development or phosphate mining. Indeed, it appears that mineral development is incompatible with the primary purposes and uses of the forest and has a great potential of destroying the natural resources of the Forest. Strip mining, the technique used to secure the phosphates, is highly destructive of natural resources. In the process, the forest areas to be mined are leveled, cleared of all vegetation and trees, and wetland areas are drained. The overburden has a depth of 20 to 60 feet. Electrical powered walking draglines, resembling giant scoops, strip the overburden and dig the mining cuts to remove the phosphate matrix averaging 8 to 10 feet thick from the earth. The mining cuts formed by these draglines average 150-200 feet wide and several thousand feet in length. 1974 Final Environmental Statement, supra slip op. p. 6, at 1-9.
The acquired lands of the United States which are included in the Osceola Forest may be leased for mineral development only upon conditions imposed by the Mineral Leasing Act for Acquired Lands, 30 U.S.C. § 351 et seq. Section 352 of the Act, vests in the Interior Secretary the authority to issue a mineral lease. The latter may prescribe such conditions as "to insure the adequate utilization of the lands for the primary purposes for which they have been acquired or are being administered. 30 U.S.C. § 352. The determination of what conditions should be imposed if a mineral lease is issued is committed by law to the Secretary of Agriculture.
Applicants such as Kerr-McGee and Global, to ensure their entitlement to phosphate leases, are required to demonstrate the discovery of "valuable deposits" of phosphates on the lands covered by their prospecting permits 30 U.S.C. § 211(b). The term "valuable deposits of phosphates" as used in 30 U.S.C. § 211(b) is found in 43 C.F.R. 3520.1-1(c). See Utah International Inc. v. Andrus, 488 F. Supp. 962, 968-69 (D. Utah 1979).
In determining whether a prospecting permittee has discovered a "valuable deposit" of phosphate, the cost of compliance with lease terms is an important element which must be considered, and if the applicant lacks the technological capability to comply with prescribed lease terms, he cannot satisfy the test and is not entitled to a lease. Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925, 936-37 (D.D.C. 1978), aff'd, 197 U.S. App. D.C. 298, 609 F.2d 553 (D.C. Cir. 1979). The restoration technologies necessary to insure the adequate utilization of the Osceola Forest for its primary purposes did not exist in January 1983 or in 1984, and did not exist at any earlier time. To demonstrate the discovery of "valuable deposits" of phosphates, Kerr-McGee and Global must comply with the terms and conditions imposed by the Forest Service and are required to show the economic and technological feasibility of reclaiming the lands covered by the lease applications.
Until February 1982, when the Forest Service submitted to the Bureau of Land Management the final stipulations to be attached to any leases which might be issued to phosphate lease applicants in the Forest, the Interior Secretary could not determine whether the plaintiffs had satisfied the "valuable deposit" test, and no lease entitlement was vested in the plaintiffs. The earlier practices of the Department of Interior in issuing phosphate preference right leases before 1970 did not alter or change the statutory requirements and did not establish a legal standard which the Interior Secretary was bound to recognize in determining plaintiffs' lease entitlement. Chevron, Inc. v. National Resources Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984). Nor did the prior determination of the Geological Survey Service in 1969 and 1970, that Kerr-McGee had discovered valuable phosphate deposits on lands covered by its prospecting permits, vest any right to receive leases for which it made application. The same is true for any subsequent determination of the Geological Survey Service or any other departmental finding made between 1969 and 1983. None of those determinations precluded the Interior Secretary from subsequently finding that the requisite discovery had not been shown.
The January 10, 1983, decision of the Secretary of Interior was not arbitrary and capricious but, rather, was justified and supported by substantial and credible evidence. An appropriate Order accompanies this Memorandum Opinion.
ORDER DISMISSING COMPLAINTS
On basis of the Memorandum Opinion filed by the Court this date in the above consolidated proceedings, it is this 6th day of February, 1986,
That the plaintiffs' motions for summary judgment be and they are denied.
That the motions of the defendants and intervenors for summary judgment be and they are hereby granted and the consolidated complaints of the Kerr-McGee Corporation and Global Exploration and Development Corporation be and they are dismissed with prejudice.