Plaintiffs have presented a reasonable alternative reading of subsection (e), but they have not met their burden of showing that the USFS interpretation is unreasonable. USFS reads the regulation in a way which allows it to make a large area of land administratively available for leasing and then make the subsection (e) findings by going back and internally verifying that it has complied with NEPA before actually leasing specific parcels. Upon reviewing the regulation as a whole, I cannot say that this interpretation is at odds with either the overall structure or the specific language of the regulation. Moreover, the USFS interpretation is supported by the plain language of the regulation, which makes the final two sentences of subsection (e)(1) subject to the USFS "verifying" that NEPA compliance is adequate. Verification is exactly what the USFS interpretation requires.
2. Evaluation of the USFS procedure under NEPA
Plaintiffs' second argument is that the procedure prescribed by the regulations -- at least as interpreted by USFS -- must be disapproved because it is inconsistent with NEPA.
Where an agency action violates a controlling federal statute, that action of course must be struck down regardless of whether the agency is reasonably implementing its own regulations.
Plaintiffs' NEPA argument proceeds from the fact that the USFS authorization for 950,000 acres of the Shoshone to be leased, nearly half with conditions permitting surface occupancy, commits those lands to be leased. Plaintiffs object that there will be no opportunity for further public comment and that, when the land is later divided into parcels and leased, there will be no opportunity for public comment or appeal of the adequacy of environmental review as to any individual parcel until after a lease has been executed. They argue that such leases "irretrievably commit" specific parcels of land to oil and gas development in violation of clear precedent requiring site-specific NEPA compliance before the point of irretrievable commitment of federal land. See Sierra Club v. Peterson, 230 U.S. App. D.C. 352, 717 F.2d 1409 (D.C.Cir. 1983).
Peterson involved facts remarkably similar to the present case, and it provides the framework under which plaintiffs' claim must be considered: I am required to consider at what point in the process the land is irretrievably committed and whether the process requires the agency to fulfill its NEPA obligations prior to that point. If the process used by USFS to lease the Shoshone does not require site-specific evaluation of environmental consequences before specific parcels are committed to oil and gas leasing, it will be violative of NEPA and must be enjoined. Peterson, 717 F.2d at 1414-15.
The government defendants and oil company intervenors advance two arguments in support of their submission that the USFS process for leasing the Shoshone satisfies Peterson. First, they argue that Peterson held that the "point of commitment" in the oil and gas leasing context is the time of lease issuance, and they say that point will not be reached until after USFS has made the three findings required by 36 C.F.R. § 228.102(e). Defendants assert that this process assures that NEPA compliance will have been done by the point of commitment, as Peterson requires. That argument is rejected. As plaintiffs point out, the Shoshone EIS and accompanying Record of Decision ("ROD") authorize 450,000 acres for surface occupancy leasing and specify that "there [will] not be another NEPA analysis and a decision that could be appealed prior to leasing." EIS, at II-7. USFS passed the "go/no go" point, at least as far as NEPA is concerned, when it issued the Shoshone EIS and ROD.
The second argument of defendants and intervenors is that the EIS for the entire Shoshone, which was prepared at the time of the administrative availability decision, is sufficiently detailed to satisfy NEPA's requirement of site-specific environmental evaluation. This argument is accepted, and it is dispositive. Again, Peterson provides the controlling authority: "If the Department chooses not to retain the authority to preclude all surface disturbing activities, then an EIS assessing the full environmental consequences of leasing must be prepared at the time of commitment." 717 F.2d at 1415.
Plaintiffs argue that the existing EIS is not site specific because nobody knows yet what the sites are. The government, however, maintains that the EIS "assess[es] the full environmental consequences of leasing" and that the EIS is sufficient to allow it to make site-specific decisions, thus satisfying Peterson's requirements. The USFS determination on that point is entitled to deference. I have reviewed the EIS and cannot find that it does not contain "sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a 'hard look' at environmental factors, and to make a reasoned decision." Louisiana Ass'n of Independent Producers and Royalty Owners v. Federal Energy Regulatory Commission, 294 U.S. App. D.C. 243, 958 F.2d 1101, 1117 (D.C.Cir. 1992) (internal quotations and citation omitted).
United States District Judge
Dated: October 16, 1997
For the reasons set forth in the accompanying memorandum, it is this 16th day of October 1997
ORDERED that the motion of plaintiffs for summary judgment [ # 30] is denied. It is FURTHER ORDERED that the motions of defendant for summary judgment [ # 31] and of intervenor-defendants for summary judgment [ # 29] are granted.
United States District Judge