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KERR-MCGEE CORP. v. HODEL

February 6, 1986

KERR-McGEE CORPORATION, et al., Plaintiffs
v.
DONALD P. HODEL, et al., Defendants. GLOBAL EXPLORATION AND DEVELOPMENT CORPORATION, Plaintiff v. DONALD P. HODEL, et al., Defendants



The opinion of the court was delivered by: PARKER

PARKER, D.J.

 MEMORANDUM OPINION

 The matter is before the Court on cross motions for summary judgment. Plaintiffs contend that on January 10, 1983, the Secretary of Interior wrongfully denied their applications for phosphate leases thus depriving them of vested rights to engage in phosphate mining. In response to those allegations, the federal defendants and the intervenors contend that the applications were denied because the reclamation technologies relied upon and proffered by the plaintiffs were inadequate to ensure restoration of the mined portions of the Osceola Forest to the purposes for which they were acquired and the historical uses to which they had been put, as required by the Mineral Leasing Act for Acquired Lands, 30 U.S.C. §§ 351 et seq. (1982). Specifically, the Secretary found that plaintiffs had not discovered "valuable deposits" of phosphate as required under the Act, because the costs of reclamation would be prohibitively high.

 The parties' legal memoranda, their numerous exhibits and affidavits have been considered, and otherwise, the matter has been well briefed and ably presented by counsel. While there are differences in emphasis and focus among the parties as to various factual matters, the Court does not find that there are significant disputes or differences as to material facts. Only legal issues remain for final resolution, thus, an award of summary judgment is appropriate.

 The Court concludes that the Secretary of Interior was justified in his decision denying and disapproving the Kerr-McGee and Global lease applications and the relief they seek should be denied and their lawsuits dismissed. The reasons for that conclusion are set out in the discussion which follows.

 BACKGROUND

 A.

 The Osceola National Forest was established in 1931 by President Herbert Hoover pursuant to the Creative Act of 1891, 26 Stat. 1103, Mar. 3, 1891. The vast majority of the Forest was acquired under the authority of the Weeks Act of 1911, Ch. 186, 36 Stat. 961, as amended by Act of June 7, 1924, Ch. 348, 43 Stat. 654. The primary purposes behind the acquisition and development were timber production, water shed protection, fish and wildlife protection, and preservation and maintenance of recreational opportunities. National Forest Preservation Comm'n., Sen. Doc. No. 44, 71st Cong., 2d Sess. 6 (1929). Osceola Forest consists of nearly 158 thousand acres located in North-Central Florida. Included within that acreage are cypress swamps, pine lands, unique hardwood wetlands, and upland hardwood forests. Highly diverse creek and river systems, within the area serve as a source of high quality surface and ground water, and provides an important water shed for North-Central Florida. The Forest also provides a home for important varieties of fish and wildlife species and for a number of valued and certain limited and endangered species. 1979 Supplement to the Final Environmental Statement, infra slip op. p. 10.

 The authority for phosphate leasing on federal land and the limits on the Interior Secretary's ability to lease, depends upon whether the lands are classified as "public domain" or "acquired" lands. Public domain lands are lands that have never left the control of the United States. The Mineral Leasing Act, 30 U.S.C. §§ 181, 211(b) et seq., authorizes the Secretary to lease phosphate deposits on those lands. Public domain lands comprise a very limited portion of the Osceola National Forest.

 For acquired lands, lands that have been either granted or sold to the United States, the source of mineral leasing authority stems from the Mineral Leasing Act for Acquired Lands, 30 U.S.C. § 352. That section provides in relevant part:

 
No mineral deposit covered by this section shall be leased except with the consent of the head of the executive department . . . having jurisdiction over the lands containing such deposit . . . and subject to such conditions as that official may prescribe to insure the adequate utilization of the lands for the primary purposes for which they have been acquired or are being administered. . . .

 The Act also establishes the authority and conditions under which the Interior Secretary may issue phosphate leases. And, as is the case here, the Secretary must secure the consent of other departments or agencies which, because of concurrent jurisdiction over the lands, may impose requirements or stipulations. The Forest includes a significantly larger proportion of acquired lands as compared with public domain lands.

 During the mid-to-late 1960s, the plaintiffs applied to the Interior Department for permits to prospect for phosphate deposits on acquired lands. The permits were issued by the Department's Bureau of Land Management pursuant to the Mineral Leasing Act for Acquired Lands and were made expressly subject to all regulations, then existing or subsequently enacted, including Special Stipulations required by the Forest Service, Department of Agriculture. The Stipulations, designed to restore and protect the surface value of the land to be mined, were attached to and made a part of the permits, infra slip op. p. 11.

 Subsequently, between 1969-1972, the plaintiffs applied to Interior for preference right leases to mine phosphate on the lands embraced by their prospecting permits alleging discovery of "valuable deposits" within the meaning of section 211(b) of the Mineral Leasing Act. Thereafter, the United States Geological Survey certified that valuable deposits had been discovered and recommended that leases be issued. The certifications were based on quality and quantity standards that had been applied by the Interior Department for some time. In 1976, Kerr-McGee filed suit to compel the Interior Department to issue the leases, infra slip op. p. 6.

 B.

 The present litigation is the latest of several law suits filed in recent years, relating to phosphate mining in the Forest. In July 1971, the State of Florida commenced an action in this District Court (State of Florida v. Morton, Civil No. 1496-71), seeking, inter alia, to enjoin the Department of Interior from proceeding further with processing lease applications for phosphate mining in Osceola as well as to compel the Secretary of Interior to undertake thorough ecological and economic studies of the effect of phosphate mining upon the natural resources of Florida. The plaintiff's application for a preliminary injunction was denied, the Court finding that the Interior Department had indefinitely suspended all applications for prospecting permits and leases on the Osceola Forest lands and that no final administrative action would be taken on pending or future permits or leases on the lands prior to completion of an environmental impact statement.

 In response to that litigation, the Department undertook in early 1972, the preparation of an environmental analysis and meanwhile, suspended all actions on pending lease applications. In June 1974 a Final Environmental Statement on Phosphate Leasing on the Osceola National Forest in Florida ("1974 Final Environmental Statement"). The Statement analyzed the environmental impact of phosphate mining upon various aspects of the Osceola Forest, including the areas' water supply, wildlife, and other natural resources, and reviewed various measures proposed to lessen and mitigate adverse environmental effects.

 In April 1976, Kerr-McGee also filed a proceeding in this District Court (Kerr-McGee Chemical Corp. v. Kleppe, Civil No. 76-0608) seeking to compel the Interior Secretary to issue leases in response to several applications which had been pending for more than five years. The Court of Appeals reversed a trial court order directing the immediate issuance of the leases, reasoning that the on-going administrative proceedings before the Interior Secretary were aborted and that Kerr-McGee should first exhaust its remedies at the agency level before seeking judicial relief. Several years later, in April 1978 plaintiff Global also filed a complaint in this District Court (Global Exploration & Development Corporation v. Andrus, Civil No. 78-0642) to compel the Interior Secretary to issue the leases it now seeks in this litigation. That ...


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