# The Wilderness Society v. Rogers C. B. Morton, Secretary of the Interior

> Court of Appeals for the D.C. Circuit · June 12, 1974 · 495 F.2d 1026

URL: https://www.frixlaw.com/law-library/cases/9460544

## Case

- **Full name:** The WILDERNESS SOCIETY Et Al., Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 12, 1974
- **Citations:** 495 F.2d 1026; 161 U.S. App. D.C. 446
- **Precedential status:** Published
- **Opinion:** Dissent by MacKINNON
- **Judges:** Bazelon, Wright, Leventhal, Robinson, MacKinnon, Robb, Wilkey
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460544

## Opinion text

MacKINNON, Circuit Judge,
dissenting:
The majority opinion orders that Alyeska, a private party, pay one-half on appellants’ attorneys’ fees. The other half, presumably the obligation of the Government, will not be paid because the Government cannot be assessed for costs in such cases. In awarding attorneys’ fees against Alyeska the majority is promoting a continuance of some of the same errors that were contained in their initial opinion and which were in effect overridden by Congress in the enactment of the Alaska Pipeline bill.
The majority say they—
take the action of Congress approving the impact statement, not as a total rejection of the arguments made on appeal, but rather as a recognition that appellants had raised a very substantial question which the courts were likely to require considerable time to resolve and that, time being of the essence in providing for delivery of North Slope oil, a congressional resolution was required.
Op., swpra, at p. 1035. The majority in straining for some acceptance of its judicial failure to act on the Environmental Impact Statement also quotes an article by Dominick and Brody. Op., supra, n.6. The referenced statement, however, is actually a serious criticism in a gentlemanly manner, of this court’s refusal to perform its assigned judicial function. Certainly one cannot persuasively argue that Congress was the proper forum to determine the judicial validity of the Environmental Impact Statement.
To my view it is perfectly obvious that Congress’ action in approving the Impact Statement by a rarely used legislative finding amounted to “a total rejection of the arguments made on appeal,” because Congress would not deprive a court (this court) of its basic jurisdiction unless it felt that the court had misused its power in the past and could not, at least with respect to this case, be relied on in the future. Certainly the need for expedition was not the principal motive; if that were the case, Congress could simply have required a speedy decision by this court in the statute. Also, the issues dealt with in the Impact Statement were too important in .the national scheme not to be properly resolved in a project of this tremendous magnitude. So Congress approved the Impact Statement, where this court had refused to even consider it, by declaring that the Alaska Pipeline should be constructed
as described in the Final Environmental Impact Statement of the Department of the Interior . . . without further action under the National Environmental Policy Act of 1969. . . 1
Indeed, Congress went further and deprived this court of its normal right to judicially review decisions of the U.S. District Court under the Alaska Pipe Line bill by providing in effect that this court should not have jurisdiction of any claim challenging “the actions of the Federal officers concerning the issuance of the necessary rights-of-way [etc.] claims alleging the invalidity of [section 203(d)] . . . and [even] claims alleging [the denial of] . rights under the Constitution. . ” 2 Certainly such drastic, unheard of and almost unprecedented action cannot be explained away on such self-serving grounds as the majority sets forth, supra. To my mind, the action by Congress is a plain indication that it considered the prior refusal of this court to perform its constitutional duty as an indication that it could not be expected properly to perform its duty with respect to this matter in the future.
*1040 Then, to add insult to injury, the majority attempts to compensate attorneys for their work on the NEPA issue, the main objective of which sought to protect the American environment by compelling construction of the pipeline through Canada, a foreign country. The majority of this court did not consider the NEPA issue; instead it left it as a factor to be decided in the future, with the delay necessarily attendant to such deferred consideration. Congress, however, considered and found the NEPA Impact Statement to be adequate. So the efforts of appellants’ attorneys with respect to NEPA drew a complete blank. Under such circumstances, it is unreasonable by any fair standard to compensate them for that phase of the case.
The majority assert that the Mineral Leasing Act issues “were somewhat interrelated with the NEPA issues.” If this were so, it was all the more incumbent upon this court to examine them and render the decision required by the case presented. This argument by the majority is more in the nature of an improper post hoc rationalization.
Moreover, the main effect of appellants’ NEPA claim would have been to subject a vital part of our energy supplies to the future veto of a foreign government. This would have been a continuation of the gross error made by the decision of this court in Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5 , 458 F.2d 827 (1972), which forced this nation to consider the alternative availability of foreign oil before the Government could allow any development of our own offshore oil resources. At that time (January 13, 1972), my dissent vigorously objected to such decision on the ground that foreign oil could not be considered to be a “realistic alternative” because the objective of the Outer Continental Shelf Lands Act was to make this nation self-sufficient in oil. To compel this nation to consider available foreign oil as a precondition to developing our own petroleum and energy resources was thus a complete negation of the objective of the Act. Significant language of my dissent which pointed to some of the hazards to which the court was thereby subjecting this nation stated:
In the event that all import quotas were removed and all the oil production of our Outer Continental Shelf could be replaced by foreign oil, it is common knowledge that such course would not be adopted because the United States would then be wholly dependent upon foreign oil. We would be powerless as a nation to resist exorbitant prices for that oil, and we would be powerless to defend ourselves in a national emergency. It is thus essential to our national survival that we develop our own national production. It seems plain to me that this is precisely the policy that Congress declared on August 7, 1953 when it passed the act authorizing the Secretary of the Interior, as a matter of national policy, to lease the lands of the Outer Continental Shelf for oil exploration. ... In passing the Outer Continental Shelf Lands Act in 1953, Congress recognized the “urgent need” for developing our offshore oil.
Sec. 8. Leasing of outer Continental Shelf. — (a) In order to meet the urgent need for further exploration and development of the oil and gas deposits of the submerged lands of the outer Continental Shelf, the Secretary is authorized to grant . leases on submerged lands of the outer Continental Shelf
Outer Continental Shelf Lands Act of 1953, § 8, ch. 345, § 8, 67 Stat. 468 , codified at 43 U.S.C. § 1337 (1970) (emphasis added).
The national needs behind this congressional declaration of policy were also referred to in the committee reports which accompanied the bill for the Outer Continental Shelf Lands Act. These stated that the development and operation of such lands through leases for oil and gas opera *1041 tions were vital to our national economy and security:
Representatives of the Federal departments, the States, and the offshore operators . . . were unanimously of the opinion, in which this committee agrees, that no law now exists whereby the Federal Government can lease those submerged lands, the development and operation of which are vital to our national economy and security.
H.R.Rep.No.413, 83d Cong., 1st Sess. 2-3, 153, 1953 U.S.Code Cong. & Admin.News, p. 2178 (emphasis added).
Congress has thus officially committed our government officials by statute to a policy of developing our offshore oil resources.
148 U.S.App.D.C. at 19-20 , 458 F.2d at 841-842 (emphasis added). Nevertheless, the majority ignored the clear intent of Congress and compelled the Government to consider the alternative of foreign oil. They seek now to compensate a group whose principal objective, following this court’s approval of the principle in NRDC v. Morton, supra, was to make our vital energy needs further dependent upon another foreign country. By contrast, I believe that the action of Congress in the Alaska Pipe Line Act, and current events in the Near East, effectively reverses the decisions of this court to the extent that they might reasonably be said to require consideration of any foreign alternatives prior to commencing development of our own vital energy resources. While we must suffer for the substantial delay caused by these misguided decisions, I refuse to concur in paying for the efforts of those who sought to further aggravate the injury.
For this reason I would refuse to compensate appellants’ attorneys for any work they did on the NEPA issue — the main thrust of which would have made us further dependent upon another foreign nation, albeit our good neighbor, the Queen of the Snows to the north, for resources vital to our well-being as an independent nation. When we subsidize lawyers to bring such suits against our national interests we promote our own destruction. That we should not do.
In addition to recovery on the basis of an issue never decided by this court, appellants’ victory here is premised on the narrow statutory interpretation issue on which they actually prevailed on the merits. This is a slender reed on which to rest recovery, however, for the width limitation surely was not the motivating force behind appellants’ decision to institute legal action. Nonetheless, the majority seizes it with alacrity and raises it to such cosmic proportions that the issue becomes no less than “[t]he proper functioning of our system of government under the Constitution.” Op. at p. 1033. This attenuated approach is demonstrably flawed when applied to Al-yeska.
Assuming arguendo that forcing the Government to channel its actions within the law could be a valid basis for requiring the Government itself to reimburse appellants’ attorney fees, 3 the argument fails as applied to Alyeska. 4 The majority, which discourses freely and at great length on how appellants’ have benefited the public weal, apparently feels constrained to limit to three sentences its argument that makes Alyeska, a private party, liable for governmental actions:
Fee shifting under the private attorney general theory, however, is not intended to punish law violators, but rather to ensure that those who have acted to protect the public interest will not be forced to shoulder the entire cost of litigation. Cf. Hall v. Cole, supra, 412 U.S. at 14 , 93 S.Ct. 1943 . After successfully persuading the Interior Department to grant the *1042 rights-of-way, Alyeska intervened in this litigation to protect its massive interests. Since Alyeska unquestionably was a major and real party at interest in this case, actively participating in the litigation along with the Government, we think it fair that it should bear part of the attorneys’ fees.
Op. at p. 1036 (footnote omitted). Brevity is not always to be desired — especially on the pivotal issue of whether Alyes-ka should be held answerable for what the majority apparently' perceives to be the sins of the Government. Perhaps this brevity, so admirable in other contexts, is attributable to an inability to marshal cogent arguments to support the proposition advanced; more likely, however, such brevity is required to mask sub silentio the major premise of the opinion. That is, oil companies are prosperous, appellants are poor, and therefore oil companies should finance both sides of this litigation. Thus the essence of the majority’s argument is contained in the phrase “we think it fair”; the fact that the State of Alaska, also a party defendant and otherwise indistinguishable from Alyeska, escapes liability is an anomaly that also supports this reading of the majority opinion. Op. at p. 1036 n. 8.
Differing perceptions of justice and the public interest are understandable and to be expected, but a judiciary that in large measure depends for its influence on continued public confidence should, at a minimum, set forth in a frank and candid exposition the true bases of its decisions. Only in this manner can they fairly be judged.
For the reasons stated above I dissent from the payment of any fees to appellants.
. P.L. 93-153, § 203(d), Act of Nov. 16, 1973 (emphasis added).
. Id.
. The majority correctly points out that 28 U.S.C. § 2412 bars the imposition of attorney fees against the United States.
. This discussion is equally applicable to the NEPA issue,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460544. Public record. Not legal advice.