Natural Resources Lae

Front 1

Atlanta Coalition: huge national highway system is NEPA’s biggest target. P claims the regional development plan (RDP – recommending widening of highway from 4 to 16 lanes) requires an individual EIS because the federal government dictates the standards and funding of the RDP.

Back 1

i. Holding: Court finds that RDP is not a “major federal action” within meaning of 102(2)(C) b/c federal certification of plan and approval of funding is not discretionary enough and is too early for an EIS (RDP is a “systems plan” not a “project plan”). NEPA does not require an EIS until the specific, individual projects are proposed.
ii. Effect: NEPA review happens at end of the process (by law now, RDPs cannot be reviewed under NEPA), NEPA reviews individual projects (with “clearly defined” pieces dictated by logical terminals).

Front 2

b. Winnebago Tribe: Tribe claims COE violated NEPA when it failed to consider entire transmission line for EIS purposes. Federal permit by COE will allow an entire project to continue, but portion covered by federal action is only a fraction of project (just the line where it crosses water, 2miles of 170mile project). P argues COE has veto power and so must review impacts of whole project, and alternatively have to consider secondary effects of rest of line.

Back 2

not “major federal action” and entire project cannot be reviewed in an EIS b/c most of it is not federal. When determining if fed action is major, consider 1. Degree of discretion agency has, 2. Amount of funding fed gives, and 3. Whether involvement is significant enough to turn private action into fed action. Here COE had discretion only over navigable waters, so project wide review not implicated (plus no fed funding and not significantly involved).

Front 3

Kleppe: P wants regional comprehensive EIS based on a fed study of effects of coal leasing in NGPRP. Agency conducted an EIS for individual coal projects (right of way permits, leases, etc) as well as programmatic EIS for their national coal-leasing program. DC said no regional EIS, but Court of Appeals reversed and found regional

Back 3

EIS has to wait until there is a plan or proposal for region. Court holds that proposals with cumulative or synergistic impact require comprehensive EIS, but footnotes rob cumulative effects law of much of its bite.

3. n25: interrelation: limited definition - the fact that region has scarcity of water and opening one mine reduces water for other does not make projects environmentally interrelated…
4. n26: the commit test: not necessary for agency to complete a comp EIS on all proposed actions in a region before approving any projects. if approval of one lease doesn’t commit to the approval of another then no relation.

Front 4

Natural Wildlife Federation v. Benn: ocean dumping in New York Mud Dump Site is regulated by the COE (barge permits) and EPA (dump site); P says COE violated NEPA by treating ocean dumping permits to same site as isolated thereby not requiring a comprehensive EIS for the site itself. COE says individual dumpings are not related. COE also says EPA is doing and EIS site, but P’s goal was to develop an alternative to dumping, and the EPA EIS doesn’t consider this.

Back 4

i. Holding: court declines to strictly apply the Kleppe interrelatedness test (commitment test), instead environmental interrelatedness persuades court to require a comprehensive EIS (95% of all dredge permits gets dumped at the site). P didn’t have to challenge a specific proposal.
ii. Significance: Kleppe interrelatedness and Benn application, this decision turns Kleppe on its head. This almost like SIPI in that courts says the actions were mature enough to require judicial intervention even though there were no pending projects.

Front 5

Fritiofson: Galveston development on wetlands where COE is responsible for supplying permits. P’s issue was not the one permit, but cumulative effects of contemplated permits to develop on the Galveston island area. COE says that no comprehensive EIS is required b/c P is referring only to contemplated permits.

Back 5

Court distinguishes case from Kleppe. Since only EA has been done, inquiry is a threshold decision of whether an EIA should be done, not Scope of EIS. In this case, CEQ regulations adopted since Kleppe does not limit the inquiry to proposed actions, rather, it requires foreseeable cumulative impacts to be included in an EA to determine if an EIS is required.

Front 6

Summary of Scoping Issue of NEPA:

Back 6

i. Programmatic – SIPI – four part test, but program must be undeniable
ii. Comprehensive/Regional – Kleppe = Gov’t Defines region and cumulative effects of proposed actions.
1. Footnote limitations – commitment test argument
2. Benn and its application of Kleppe
iii. EA – Fritiofson – takes one small action and analyzes it in big picture. For EA, take into account cumulative impacts of foreseeable actions (contemplated)

Front 7

Louisiana v. Lee: COE issued renewal permits for dredging for shells in GOM. P wants an EIS for this project. COE say no b/c FONSI in the EA based the fact that have legally enforceable conditions in the permit that make this federal action go from significant to minor impact. DC said P has burden to show that action would significantly effect human environment.

Back 7

i. Holding: Reduces burden for plaintiffs and holds they only have to show that the proposed action may significantly impact the environment
ii. significance: plaintiffs bear burden, but only must show the agency’s proposed action may have significant impact. Just have to show agency’s FONSI determination was unreasonable.

Front 8

CEQ defines The Process for EIS

Back 8

1. Define the Scope = alternative and impacts (emissions, water quality, & where to they get all the trees for the pulp process)
2. Draft EIS and Comment period– public and agencies
3. Final EIS
4. Supplemental EIS – if conditions change

Front 9

CEQ makes process Stronger

Back 9

1. Alternatives: alternatives are the heart of NEPA: without alternatives, the EIS is of no consequence. alternatives come before consideration of impacts in the EIS
2. Comment
a. Agency Comment – CEQ has duty for relevant agencies to comment
b. Lead Agency Response – must respond to and incorporate comments into modifying and developing alternatives
c. EPA authority from the Clean Air Act – obligated to comment if CWA implicated and if not satisfied can refer to CEQ
3. CEQ Review: can’t veto, but can raise hell. Require more reports and even recommend cancellation of project

Front 10

NRDC v. Morton: Proposal to lease oil/gas tracts in the OCS of the GOM next to extensive wetlands area. EIS contains extensive findings of adverse enviro impacts from drilling, but P challenges b/c EIS does not consider the alternative of raising import quotas (= less/no drilling). SOI claims the agency does not have the authority to impact quotas.

Back 10

i. Holding: Court finds agency must consider all alternatives, even those outside scope of agency’s authority. Alternatives need not offer complete solution to the problem; even if alternative only supplies part of energy lease sale would yield, it could still reduce scope and therefore enviro impact of the proposal. EIS must set forth the info so that congress can use to make informed decision-making.
ii. Significance: agencies need to take a “hard look” at environmental consequences and alternatives. Doesn’t mean crystal ball inquiry, but reasonable discussion of alternatives.

Front 11

Vermont Yankee: P challenges permit to construct 2 nuclear reactors b/c board did not consider energy conservation as an alternative (P did not present evidence on this at the hearings). Commission said this did not meet threshold test of alternatives that were reasonably available and P failed to present evidence. COA rejected this and gave Calvert Cliffs reasoning, that commission is not merely an umpire, if P’s comment brings attention to issue, then commission investigate alternative to see if its worth considering in the EIS

Back 11

SC rejects this reasoning.
i. Holding: Threshold test is good. Alternatives that an administrative agency must consider (after being suggested by the public) must be practical, limited by time, resources and known methods of examining effects; interveners and challengers must participate meaningfully by presenting showing that would “require reasonable minds to inquire further”

Front 12

Consideration of Alternatives under NEPA+CEQ regs

Back 12

indentify environmentally preferable alternatives, and give reason why agency does not use it (documents process and gives publicity factor to influence decision making, comments, and politics)

Front 13

Overton Park: P challenges Sect approval of proposed road through park in Memphis, w/o any factual findings. Roads are built up on either side. P claims Sect didn’t follow letter of 4f requires the agency adopt the feasible and prudent alternative to road through park. P says go around park or at least minimize impact (tunnel, etc)

Back 13

i. Holding: 4f is clear and specific mandate that no fed funds are to be used for road through park unless no feasible alternatives exist. Test for prudent and feasible: feasible means technologically possible; imprudent extraordinary magnitude
ii. Impact: 4f prevents Sec from undertaking a normal cost/benefit analysis to determine approval of project b/c it would never protect park b/c cost of going through park is always the cheapest (no eminent domain b/c govt owns parks)

Front 14

Citizens Against Burlington: Toledo wanted to build a large extension to airport in Toledo, and FAA approves. Expansion would go through park via noise from planes overhead. FAA approves plan. P wanted the alternative of building the airport somewhere else. FAA says that this doesn’t resonate with the goal, which is to bring business through extension to airport in Toledo. FAA only wants to look at alternatives that would achieve this goal, FAA limits scope of EIS/alternative b/c city is proprietor and fed role is to support/approve project.

Back 14

i. Holding: Court defers to the FAA in defining projects narrowly limits the alternatives.
ii. Impact: while 4f sets a higher standard than NEPA, once the purposes of a project are narrowed, the options that are reasonable and prudent are restricted. The court will not define the purposes of the project, defers to the agency.
iii. Note: Environmental impact need not be physical. Here the impact was the increase in noise decibel over park area.
iv. Technical Consideration: an agency can select a contractor to prepare the EIS, but the agency must review it and the contractor must complete a conflicts report

Front 15

Methow Valley: P challenges special use permit for ski resort issued by FS b/c impact to deer and air quality (P just wants to keep place pristine). Majority of impacts will be off-site (deer paths, increased cars, etc). FS says impacts will be minor b/c of proposed mitigations measures. Mitigation measures not fixed and mostly under authority of state and local governments. COA says need enforceable mitigation measures, WCA, and FS permits violate own standards. SC court finds EIS adequate despite tentative and hypothetical nature of the mitigations.

Back 15

i. No NEPA Substantive Review: all that is required is compliance with procedural safeguards, so agency can choose an environmentally destructive option, as long as the impacts are examined.
ii. No Mitigation: NEPA doesn’t require action to be taken to mitigate, nor does it require explanation of mitigation measures that will be taken; only need to be discussed. (compare this to LA v. Lee where limitations were taken into account to determine if impacts are minor or major b/c they were in the permits themselves)
iii. No WCA: CEQ amended regs that said if agency had difficulty obtaining info to make an easement of enviro impact that it had to make a WCA. SC gives deference to new CEQ regs that say only have to evaluate reasonably foreseeable significant impacts based scientific evidence.
iv. Agency’s Own regs: Though NEPA and CEQ require an analysis of on and off-site mitigation, SC says FS regs have no requirement to consider off-site mitigation.

Front 16

COE Process

Back 16

Local industry & govt want channel for increased navigation business. They go to COE for project permit. COE dues study and then makes recommendation to congress (proposal requiring an EIS). COE issued permit, congress funds project. COE recommends more projects, get more money, and this is how they grow.

Front 17

COE before NEPA

Back 17

applicable law was the Flood Control Act, sec. 701a:
i. every project must be analyzed for cost-benefit ratio: ratio should be more than parity to allow a project to proceed = Benefits must out-weigh the costs
ii. objective standard is reviewable by a court
iii. project must be related to flood control

Front 18

Alabama v. Corps: Alabama objects to a Corps channel project that will require clearing of trees and draining land b/c it will cause the state to lose fishing and hunting opportunities. P’s challenge the Corps’ EIS b/c it didn’t adequately weigh costs and benefits under NEPA 102(2)(B). COE described environmental consequences but P wanted COE quantify the environmental loss.

Back 18

i. Holding: NEPA 102(2)(B) requires cost benefit analysis in EIS that include economic factors as well as environmental ones that are capable of being quantified (money is best denominator). If enviro factor can’t be quantified it must by fully disclosed so the decision-maker can also weigh that factor with those that are quantifiable.
ii. Consequences: environmental impacts should be quantified where possible to be factored into cost-benefit analysis. Compare this result to Oklahoma

Front 19

South La. Environmental Council, Inc. v. Sands: P challenges validity of cost/benefit analysis of COE project to build channel that congress approves based on those #s. P claims COE overvalued benefits of hurricane protection for oil rigs that seek refuge in the channel and flood control and so congress was misinformed when it approved project. Issue is whether there is judicial review of cost/benefits analysis, which has traditionally been considered a policy decision for congress (Oklahoma).

Back 19

i. Holding: Court says no substantive review of agency determination under NEPA (Kleppe and Vermont Yankee), but there is procedural review cost/benefit (did they take a “hard look”. Standard of Review: Judicial review of agency cost/benefit analysis is limited to instances where the economic v. environmental consideration was so distorted that it impaired congress ability to fairly assess the environmental consequences.
ii. Consequence: misinformation not consequential because calculation with new benefits considered was not significantly different from the original report relied on by Congress.

Front 20

Legislative Action & Treaties-NEPA 102(2)(C)

Back 20

include and EIS in every recommendation or report on proposals for legislation. Even before an EIS for major federal actions, Congress had in mind that an EIS would be completed for proposals for legislation…how can one explain Public Citizen?

Front 21

b. Public Citizen v. US Trade Rep, 170: Court denies P request for an EIS on NAFTA. Issue is APA requirement that for judicial review, there must be a final agency action. Process is OTR negotiates NAFTA and then gives to President who delivers it to congress. Rule: agency action is final where agency has completed decision-making process and result of process will directly affect the parties.

Back 21

i. Holding: OTR has completed decision-making process, but Court says final action that will affect the parties is delivery of NAFTA to congress by president, b/c president can choose to pass it to congress, amend it, or not do anything with it. Because president is not an agency there is no final agency action and therefore no EIS requirement.
ii. Result: end of the legislative EIS
iii. Concurrence: Randolph concurrence – No agency recommendation to congress is ever final b/c congress hasn’t acted. Saying it’d be up to congress to hold the agency accountable. That wouldn’t happen.

Front 22

Lyng v. Northwest Indian Cemetery Protective Association: Constitutional Rights. SC decides individual religious beliefs cannot curtail federal action, and the 1st Amend. Free Exercise Clause (religion) does not prevent the federal government from building a road to connect two towns through Indian holy lands that are in a National Forest. SC fudge con law analysis.

Back 22

Gov’t could simply not operate if it were required to satisfy every citizen’s religious needs, the 1st Amendment can’t give one group a veto over public programs. Court’s worried that Native American claims will result in religious servitudes over vast tracts of fed property.

Front 23

Nez Pierce Tribe: Treaty Right. 1860s treaties ensured the rights of Indians to fish in the accustomed places, but development and damming has diminished the fish runs to negligible amounts;

Back 23

the Court finds the Indians are not entitled to economic damages because the Treaty only entitled Indians to a share of available fish, not that a fixed quantity of fish always be available. Court says development is ok if reasonably and doesn’t discriminate against Indians.
i. Note: another illustration of an inevitable ruling; if the Court had decided otherwise, it would have definitively undermined the property and development rights of the whites
ii. Result: Native Americans retain treaty rights to natural resources, but the treaties do not ensure economic damages for diminished resources…but to give right to mitigation
iii. Mitigation: Mitigation efforts, rather than economic damages, are more appropriate. Could operate damns so as not to disrupt the fish spawning.

Front 24

1934 Taylor Grazing Act: goal to improve range land condition and stabilize the livestock industry

Back 24

1. 52 Grazing districts in 150 million acres
2. Each District is divided into Planning Units
3. Unit Resource Analysis (URA) details the inventory of resources in each unit
4. Management Framework Plan (MFP) – land use plan that sets goals and constraints for each planning unit – includes public comment
5. Program Activity Plans – prepared for each type of resource related activity (grazing, timber, recreation)
6. Allotment Management Plan (AMP) – program activity plan for grazing
7. EIS – before any AMP is implemented, it is determined if an EIS is necessary

Front 25

US v. Washington: Stevens Treaty Case – Indians use treaty to challenge roads that block fish runs.

Back 25

Court found Treaty said that Indians would not have to worry about fish, they would be there. Court says that stream must be unblocked. This case seems irreconcilable with Nez Pierce. This case opens up the right to natural resources based on Indian Tribal Treaty Rights.

Front 26

NRDC v. Morton, 32: 80% of BLM lands are in “fair” to “bad” condition; overgrazing is ruining the federally-owned lands; BLM issues a draft programmatic EIS for entire grazing program but were issuing and renewing permits w/o EIS’s dealing with enviro impacts of those permits. NRDC wants regional EISs at a district level b/c it would address environmental impacts of specific area.

Back 26

Court rules for P – need regional EIS even before programmatic is completed.
i. Compare: similar to Kleppe’s analysis of when comprehensive regional EIS is required; court does not define region, but gives factors to determine when regional EIS mandated
ii. Consequence: this decision jammed system. BLM says it will take 20yrs to comply (to determine if a regional EIS is required). The NEPA requirements motivate FLPMA
1. This case was decided under the 1934 Taylor Grazing Act that gave 10-year exclusive grazing permits that were like property rights; NEPA’s hindering of ranching activities finally motivates ranchers to lobby for amendments to the Taylor Act…

Front 27

FLPMA Handles

Back 27

1. 102a8: Enviros argue: Manage with environment in mind. Substantive policy behind act as it pertains to protecting enviro. No real law to apply. Might help guide court in analyzing statute.
a. 102a(12): Gov argue: mange land in manner that recognizes nations need for minerals, food, timber, etc.
2. 202(c)(1): multiple use sustained yield
a. govt: this means to meet long term needs of US, like grazing and mining = food and energy
b. enviros: does use violate the definition of multiple use: manage the various resources w/o permanent impairment of the productivity of land
3. 202(c)(3): give priority to areas of critical environmental concern (to protect and prevent irreparable damage)
a. Enviros: good argument for them (as it relates to the hypo – bird loss and depleting #’s of antelope)
4. 202(c)(9): Land use plans shall be consistent with state and local plans…to the maximum extent the Sect finds consistent with fed law and purpose of the act
a. Not much bite: started out well but sect has full discretion
b. Enviros could bring arbitrary and capricious
5. 302(b): Sect shall take any action necessary to prevent unnecessary or undue degradation of the lands
a. in hypo this might thwart the building of the road for mining…like a 4f argument (Overton Park)

Front 28

NRDC v. Hodel (I – CA): BLM’s Cooperative Management Agreements (CMAs) give ranchers 10year permits to “exemplary ranchers” - uninterrupted, w/o real ability to cancel it.

Back 28

i. Holding: Court says this violates FLPMA/TGA in two ways: allow ranchers to set number of animals grazing on lands (violates FLPMA/TGA b/c BLM specifies #s of livestock) and removes discretionary power of BLM to revoke the permits for violations
ii. Significance: under FLPMA, BLM must set the number of livestock units and must retain discretionary right to revoke permits.

Front 29

NRDC v. Hodel (II – NV): P challenges BLM’s Management Framework Plan for reno b/c for failing to curb livestock and leads to environmental degradation. Court rejects both P’s NEPA and FLPMA challenges.

Back 29

NEPA: P says BLM violated NEPA b/c EIS lacks specificity in explaining why proposed action is superior to alternatives. Court says BLM gave best shot, so many tradeoffs to consider, can’t justify every aspect.
ii. FLPMA: Court rejects P’s claim that BLM violated substantive mandate to curb overgrazing. BLM plan not Arbitrary and Capricious (don’t know cause of overgrazing, other mitigation efforts you can do before removing livestock, and BLM lacks data on what animals grazed where and how much they consumed)

Front 30

Process for Hard Rock Minerals under 1872 Mining Law

Back 30

i. entry: right to entry; prospectors can go onto public lands  too early for an EIS
ii. exploration: digging, hosing, blasting; rights during exploration: too early for an EIS
1. occupy
2. exclude
3. move dirt
iii. Find: discovery or location  proper step for EIS – you have right to get the mineral out
1. must be a valuable mineral deposit (VMD)
2. develop and sell
iv. Obtain title: patent  too late in the process for an EIS
1. land can be sold for any use (generally, to a larger company – put a house on it)
2. overall, this is a scheme to transfer public land to private use

Front 31

Surface Resources Act: applies to Forest Service and BLM, but different standards adopted by regulation

Back 31

i. FS: defines “reasonably incident to mining” as requiring least harmful alternatives
1. SRA, as defined by FS, can fight a VMD determination by factoring environmental costs into finding of least harmful alternatives
2. example: no VMD because exploration costs increase if least harmful method of exploration is prohibitively expensive
ii. BLM: defines “reasonably incident to mining” as allowing any action that is for the purpose of mining
iii. SRA only applies before the patent: once the VMD is found and the patent granted, SRA is inapplicable

Front 32

Environmental handles in hard rock mining:

Back 32

i. VMD cost-benefit analysis: requires taking into consideration environmental costs (including those mandated by the state) – Coleman & SD v. Andrus
ii. EIS: comes at discovery - procedure and alternatives must consider quantified environmental costs – FOE v. Butz
iii. Surface Resources Act (SRA): surface activity must be reasonable and necessary (like a 4f argument) - Richardson
iv. State law: state reclamation and pollution control requirements factor into VMD consideration; federal laws do not preempt state regulations as long as the state mandates do not prohibit mining altogether – California Coastal Commission
v. FLPMA 302(b): regulation’s standard of “unnecessary and undue degradation” – Mineral Policy Center

Front 33

Dakota v. Andrus: SD challenges grant of mining patent for open pit mining, wants and EIS. Court finds granting of patent is ministerial and mining patent not a major federal action because the BLM has no discretion.

Back 33

i. Holding: EIS: Patent is too late for an EIS. Mining patent is not major federal action because it is ministerial = nondiscretionary. Once the VMD is determined, the miner has the right to patent, so the patent does not enable any activity.
ii. Handles: Must include environmental cost when conducting a cost/benefit analysis for making a finding of VMD (this is Coleman being applied). VMD determination is also judicially reviewable

Front 34

Friends of the Earth v. Butz: D requests approval for exploratory mine. EA is conducted for enviro impacts (road, drilling hole, etc). P wants EIS.

Back 34

i. Holding: EIS upon exploration is too early because environmental impacts and finding minerals is purely speculative.
ii. Handle: Proper EIS timing: at finding/discovery stage because the project is site-specific. Exploring to early and patent is too late.

Front 35

US v. Richardson: FS wants to halt mining exploration project by small-time mining outfit b/c they are using unnecessarily destructive methods (bulldozers digging large trenches) and there is another alternative (core drilling). Court looks at legislative history of SRA to grant injunction.

Back 35

i. Handle: SRA Reasonability test: Use of surface must be reasonable and necessary. Here miners’ chosen method was unnecessarily destructive and there was an alternative method available (even if it was more expensive – if it’s too expensive maybe you have no VMD). This is like a 4f argument.

Front 36

California Coastal Commission v. Granite Rock Co: P finds limestone and doesn’t want to comply with CA state regulation that requires a permit in order to develop in a CA coastal zone (state concerned about water quality and runoff into pristine stream from development). P argues that state can’t compel it to get permit b/c the Fed law preempts state law

Back 36

i. Holding: state environmental regulations for pollution control do not violate federal land use policy. FLPMA 202c(9) gives Feds the final word on land use plan and therefore a state can’t prohibit mining by its own land use plans. Here, cali permit was not a land use plan, but rather an environmental regulation. Land use policy and environmental regulation are two separate concepts.
ii. Handle: state pollution controls can be an environmental check on permitted hard rock mining projects

Front 37

jMineral Policy Center v. Norton: FLPMA established standard for BLM to regulate hardrock mining activities – 302(b): Sect shall take an action necessary to prevent “unnecessary or undue degradation” of the lands. Interpretation of standard is at Sect discretion. 1980 regs implemented a “prudent operator standard;” the 2000 regulations replaced that with “substantial irreparable harm,” defined as harm that could not be mitigated. 2001 regs put back the “prudent operator standard,” but also interpreted unnecessary and undue as just meaning unnecessary.

Back 37

i. Holding: Undue is separate from unnecessary. So what is necessary for mining might be prevented b/c it leads to undue degradation. Ex: uranium ore is under ancient Indian artifacts, endangered species, etc.
ii. Handle: FLPMA 302(b) – Agency can take action to prevent unnecessary or undue degradation.

Front 38

Mineral Leasing Act (1920): soft minerals differences from Hard Rock.

Back 38

Differences from Hardrock
i. No statutory right to enter – need lease/permit
ii. Gov’t receives payment
iii. No patent rights – can’t just get title to own land – lands must be returned
iv. Finite time to prospect and get minerals out

Front 39

obtaining a coal mining lease

Back 39

i. If a known deposit, the secretary can directly lease: no exploration permit necessary
1. Discretionary basis
ii. if no known deposit, preferred leasing, the secretary permits exploration
1. if a “commercial quantity” is found, the (property) right to mine vests
2. Handles
a. commercial quantity: requires consideration of costs and benefits including environmental compliance factors and costs (reclamation)
b. commercial quantity cost-benefit analysis can also include aesthetic and other “societal” costs

Front 40

Environmental handles in MLA (coal leasing):

Back 40

i. Commercial Quantity cost/benefit determination for preference rights lease must include environmental costs (reclamation). - Berklund
ii. Agency regs (FS) can set requirements to put area back to previous use – reclamation costs might be prohibitively costly – Kerr McGee

Front 41

NRDC v. Berklund: to obtain a coal lease where deposits are unknown, the applicant must prove the presence of a “commercial quantity” of minerals (the standard is profitability). P argues that even if commercial quantities are found, Sect’s decision to grant lease is discretionary, as it is with known deposits.

Back 41

i. Holding: applicant who proves presence of commercial quantity has preference right lease and miners’ property right vested: non-discretionary; secretary cannot deny lease.
ii. Handle: however, the presence of a commercial quantity is a cost/benefit analysis that includes environmental costs (including reclamation and safeguards against harm) because the definition implies profitability (like VMD analysis in hardrock)
1. Additionally, “societal” costs can be considered when determining the sufficiency of proof of a commercial quantity
iii. NEPA: Court said miner may be precluded from harming environment even after lease is granted. However, effect is that it might be a taking b/c property rights have vested.

Front 42

fKerr-McGee Corp. v. Hodel: FS denies P’s lease b/c they did not find valuable minerals as required. FS regs required land to be reclaimed to their primary purpose (watershed and timber). Plaintiffs claimed there was no technological method to ensure complete reclamation as required.

Back 42

i. Holding: Reclamation costs can outweigh economic balance and prevent a lease where prohibitively costly.
ii. Issue: does Kerr-McGee have a potential takings claim? No: if the reclamation costs tipped the economic balance in favor of denying the lease, there was never a commercial quantity at the site and thus there was never a valid claim/vested right to the minerals

Front 43

FCLA expolaration license

Back 43

not a right like in hardrock
i. Granting is discretionary by Sect
ii. Subject to reasonable conditions, including ones that insure environmental protection (subject to state and local enviro regs too)
iii. Does not give legal right to extract minerals – only gives right to explore and find. There is no preference right system – there is a competitive bidding process:

Front 44

Leasing Process & Enviro Handles

Back 44

i. Land Use Plan – FLPMA – environmental conditions through zoning. EIS on potential leases through land use plan.
ii. Competitive Bidding - at FMV: sect doesn’t have to disclose how he came to FMV
1. Allows public comments
2. not really competitive – low # of bids – extremely controversial
iii. **Veto Power** – if another agency has control over land, such as the FS, that agency has veto power over the proposed lease

Front 45

Process for Onshore Oil and Gas Lease

Back 45

i. lease - allows exploration (seismic – can’t disturb land)
1. 95% noncompetitive leases; 5% competitive  all lessees pay 12% royalty
2. the lease triggers a vested right: the APD can be conditioned, but it cannot be denied without a takings claim
ii. application for permit to drill (APD)
1. a lease holder is legally guaranteed the right to develop, but the APD may be conditioned
2. APD triggers on-site BLM inspection; nine environmental criteria (ex: endangered species) can trigger an EA, and a subsequent EIS if no FONSI.
3. But can’t deny b/c it would trigger a takings claim
iii. Development plan
1. EIS upon development plan, but the right has already vested
2. if the plan is rejected and the drilling rights denied, the secretary is liable for a takings claim and there is no limitation on damages for such a claim

Front 46

Conner v. Burford: FS did EA and made FONSI for over 1 million acres for oil. BLM then sold leases, some were NSO, others were Non-NSO. P says EIS needs to be done for both types.

Back 46

i. NSO: lease is similar to an exploration permit because the surface cannot be altered (and thus, no drilling). Court says EIS is only required if the NSO lease is to be altered.
ii. Non-NSO: EIS prior to Lease. lease is the standard lease and the government cannot preclude surface activity, they can only condition it (because mining right vests at issuance of lease). Court says EIS is required prior to lease b/c while agency can condition leases/incorporate mitigation measures there remains substantial questions as to whether they will preclude significant environmental damage.

Front 47

Park County v. Department of Ag

Back 47

EIS on full field development is too speculative because the lease only triggers exploration and the gathering of information; some APDs will trigger an EIS, but the one in this case does not because the lease included environmental stipulations and full field development is not automatic from this APD
i. Holding: EIS not required to leasing b/c developmental plans were not concrete enough. Full field development is extremely tentative at best.
ii. Note: uses an interdependence (Kleppe) test to find the steps from leasing to full field development do not trigger an EIS. Some individual APDs might trigger an EIS.

Front 48

OCSLA Process

Back 48

i. leasing: “preliminary and relatively self-contained stage” (NSB v. Andrus):
1. data is accumulated from exploration that informs future proposals and decisions
2. lease can contain conditions on activities allowed by the secretary at this stage
3. EIS required at lease stage, BUT lease EIS does not contemplate full shelf drilling if the deposit is unknown and the lessee will only be gathering information (too speculative)
ii. exploring (similar to APD in onshore drilling)
iii. producing / development: requires another EIS

Front 49

Environmental Handles Offshore Oil and Gas

Back 49

i. EIS: comes in the beginning of the process, but it is limited
ii. Secretary retains cessation authority (ex: under ESA if there is existence of endangered species)
iii. damages upon cessation are limited: if the secretary stops a lease, the government pays only the lessee’s costs, not his prospective profits. Eliminates the takings problem.

Front 50

North Slope Borough v. Andrus: the secretary issued leases for exploration of the shelf off Alaska for potential oil drilling. P says drilling will adversely affect indigenous folks that rely on bowhead whales for sustenance and EIS did not adequately consider this.

Back 50

court finds EIS adequate because, while it only examines impacts of exploration processes, full development is contingent on findings and completely speculative at this stage; exploration stage is for gathering information to decide resource commitment. Furthermore, a second EIS will be done at the development stage.

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NWF v. Morton: Carter issues executive order requiring agencies to zone lands to designate specific areas and trails where use of ORV may and may not be permitted. Issue is that BLM zones all lands approved for OVR use, until distinguished later for closing.

Back 51

the court finds that the open zoning plan violate executive order b/c keeping lands open subject to later closing is expressly different from making an up front decision about which specific areas permit OVR use and which don’t. BLM had a responsibility to zone based on preventing the unnecessary degradation of the land and instead invalidly tips the scale in favor of OVR use.

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Sierra Club v. Clark: Dove Springs is a 5000acre area within the 12 million acre California Desert Conservation Area, that hosts anomalously abundant wildlife. 3000 acres of Dove springs are currently designated open to ORV use.

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i. Handle: FLPMA regulations require that Sect “shall immediately close” any area that is considerably and adversely affected by ORV use.
1. weaker handle is the FLPMA requirement that Sect prevent unnecessary or undue degradation – see Mineral Policy Center.
ii. Holding: Court allows secretary to consider entire area (more than 12.1 million acres) to find that allowing ORV use in this small section does not cause considerable adverse effects; only if Dove Springs’ 5500 acres are considered independently would the fact that the 3000 ORV-open acres are now suitable only for ORV use be significant
iii. Significance: finding of considerable adverse effects will depend on the area defined as interpreted by agency (BLM).

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Sierra Club v. Butz: appeal to Hardin

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court finds that considering and ignoring consequences is not a satisfactory fulfillment of MUSY - “due consideration” requires values in question be informedly and rationally taken into balance - Court puts burden on Forest Service in MUSY to show due consideration.
i. court puts in substantive arbitrary and capricious review requirement back in MUSY, did not have time to grow b/c: NEPA & NFMA changed everything

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NFMA Handles

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Handle 1: NFMA 6(g)(3)(e): insure that timber will be harvested only where soil, slope, or other watershed conditions will not be irreversibly damaged – NWF v. FS
i. “assure lands can be restocked w/in 5 years – only provision in NFMA w/# requirement
b. Handle 2: g(3)(b): mandates biodiversity – Espy
c. Handle 3: 6K idiot forester provision – restrict harvesting to profitable areas, no below cost timber sales
i. But, gives secretary discretion to weigh factors: physical, economic, other pertinent factors ex) considering jobs, social reasons
d. Handle 4: 6(f)(v) – insure that CC is used only when consistent with protection of soil etc. - the court turns it into a 4(f) like “necessary” language
e. Handle 5: Sec. 13 – limit sale of timber to quantity equal to or less than quantity which can be removed annually in perpetuity on a sustained-yield basis.

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NWF v. US Forest Service: FS lifted moratorium on logging in landslide prone area of Oregon. FS mitigation techniques were “vegetative leave areas”, uncertain if they work. FS issued CC plan. P wants injunction b/c CC violates Church guidelines, MUSY, NEPA. Holding:

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ii. MUSY no injunction because it is “largely discretionary,” even if it does provide some law to apply (procedural requirement);
iii. NEPA: grants injunction because FS’s FONSI (and thus no EIS) was unreasonable - the FS seven-year plan for the area constituted a major federal action

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Sierra Club v. Espy: FS uses CC as if it was the statutory rule, rather than the exception. Court grants injunction based on NFMA provisions:

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i. Handle 1: NFMA 6(g)(3)(f)(v): insure that CC is used only when consistent with protection of soil etc. - the court turns it into a 4(f) like “necessary” language
1. The court here flips the burden. FS has to prove they wont damage - the exception is clear-cutting, the general rule is NO clear cutting. FS has it backwards
ii. Handle 2: NFMA g(3)(b): mandates biodiversity – provide for diversity of plant and animal community to meet multiple use objectives. (diverse trees = diverse everything)
1. Applies strictly b/c FS regs implementing statute have biodiversity requirements that are affirmative mandates – different from wishy washy language from statute (diversity w/in context of multiple use, also says “where appropriate” and “where practicable”)
2. Original Tongass cut was 99.4%, now, b/c have to first look to biodiversity, 56%

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Summers v. Earth Island: Scalia – P challenges FS regs, applicable to all FS land, that exempt salvaged wood timber sales (insects/fire) from EIS requirements b/c effects are “diminimus”. Greenies suspicious of how badly damaged these areas were – areas are small but can add up in the aggregate. Injured member claims general plans to visit forest someday

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i. Holding: not particularized enough
ii. This is mass v epa without state as a party.
iii. Now: Under Ohio - may not be able to challenge plan (SUWA), under Summers - may not be able to challenge Regs