Petition — Pacific Legal Foundation v. Natural Resources Defense Council, Inc.

Supreme Court brief1976

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Text

In the Supreme Court a

OF THE

United States

OcroBER TERM, 1975

No. ~€5°1491

Paciere Leoar Founparion axvp Purin

Lanps Councin, INc..

Petitioners,

Vs,

Varurart Resources DEFENSE CouNnctin, PNc.. et al.

and

THOMAS KLEPPE, SECRETARY OF THE INTERIOR,

ad CURTIS BERKEL SD, DikecTroR or TH!

sUREAC OF LAND MANAGEMEN’,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia Circuit

Ronautp A. ZUMBRUN,

RAYMOND M. Momboisse.

Pacitic Legal Foundation

455 Cac Ma ) 4

acre ¢ < f 45R 14

VIAN BARASH.

000 C anectcut Avene NOW

suite 1300

Mashinaton DC. 2003¢

Counsel ay, PR; fiticue i's.

GLENN FE. Davis,

Pacific Lega! Foundatior

1030 Fifteenth Street NW. Su (4,

Washinaton DC. 20005

Of Counsel,

PERNAU - WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO, CA 94105

Be id

Subject Index

Page

PD CUE cnn sca ccubondeeededes tenverssnctetecenees 2

‘ ae

DR co. gcacuhennedus 666 oud added sesaeadiedeeeunus 2

SD UE : i. nds coon ceuednnneedeseeesnesaneeeens 3

Statutory and Regulatory Provisions Involved ............ +

ES ed teas hNNES SSeS OEeaReR 4

A. Jurisdiction of the United States District Court for

ey ee Ge TEE 0 dcacidneecebduesed0ce 06ees +

B. The attempt to eliminate livestock from the public

ae Ge Ge Ge ED hwo 000.0 0604660670 6000840

C. The District Court’s decision and aftermath .........

D. The Court of Appeal’s decision ...............e000: 10

Reasons for grantimg the Wit ......ccccccccccccccccccess 10

Pe p20 ee. ce eee eee eid’. she aaa 21

= Index to Appendix

Page

Appendix A—The National Environmental Policy Act of

ns (asd ddunkdaeukk hie hans cee bbe eee

Appendix B—The Taylor Grazing Act ................... 8

Appendix C—The Federal Range Code ................... 31

Appendix D—Memorandum Opinion and Judgment of the

United States District Court for the District of Col-

EE geo 1 addbdhneebeiesdeseneeeessine cneeteanaw 46

Appendix E—Order of the United States District Court

for the District of Columbia Denying Motion of Pacific

Legal Foundation and the Public Lands Council, Ine.

for Reconsideration of Opinion and Judgment ........ 74

Appendix F—Final Judgment of the United States District

Court for the District of Columbia .................. 76

“s Appendix G—Judgment of the United States Court of

Appeals for the District of Columbia Cireuit .......... 84

Table of Authorities Cited

Cases

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289

PU. CivUuunLeusdiekonndhuulseteebkeedveabesedeeand

Anaconda Company v. Ruckelshaus, 482 F.2d 1301 (10th

DE ME, Saibenedendndeds enbek een sVbess o0desceenes

Appalachian Power Co. v, Environmental Pro. Agey., 477

BF Pe ra nn

Appalachian Power Co. v. Environmental Proteetion Ageney,

ND oe cra Cape eu SSCs books ccchoece

Buckeye Power, Ine. v. Environmental Protection Agev.,

Soe Fe: Bee Gee ee Sh wibw ceded ch ewt kewesvess

Cartwright Van Lines, Inc. v. United States, 400 F. Supp.

ee ee ed ed hee eeses oekecde on

Drv Color Mfrs. Ass’n Ine. v. Department of Labor, 486

os 8 #7 hI RS aren ere een

Duquesne Light Co. v. Environmental Protection Agey.,

ee ss cc uetamune bien eeas

East Tennessee Energy Group v. Scamans, F.Supp.

Cees ex eeeneunes

Ecology Center of Louisiana, Ine. v. Coleman, 515 F.2d

ge fe re

Environmental Def. F., Ine. v. Environmental Pro. Agey.,

Getty Oil Company (Eastern Operations) v. Rueckelshaus,

467 F.2d 349 (3d Cir, 1972), cert. denied 409 U.S. 1125

Dn leeudess4uu dada dhunsddes that eke BNObs 6riewontaens

International Harvester Company v. Ruckelshaus, 478 F.2d

G6 (EAC. Cie. BOGS) «x nccccccvccceses

Jones v. Lynn, 477 F.2d 885 (1st Cir. 1973) .....

Pages

5 U.S.C. (Administrative Procedure Aet) $$ 701-706

TABLE OF AUTHORITIES CITED

Kleppe v. Sierra Club, No. 75-552, and American Electric

Power System v. Sierra Club, No. 75-561, 44 U.S.L.W.

ee ce rh nn otis vc Wenee esas ene tbereeee<

Natural Resources Def. Coun... Ine. v. Tennessee Val. Auth..

iil

Pages

367 F. Supp. 122 (E.D. Tenn. 1973), aff'd 502 F.2d 852

I a a Ne ee

Portland Cement Association v. Ruekelshaus, 486 F.2d 375

(D.C, Cir. 1973), cert. denied 417 U.S. 921 (1974) .....

Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir, 1975)

State of Wyoming v. Hathaway, 525 F.2d 66 (10th Cir.

1975), petition for cert. filed sub nom. .............0..

State of Wyoming v. Kleppe, 44 U.S.L.W. 3494 (ULS. Mar.

OT ee

United States v. Coleman, 390 U.S, 599 (1968) 2... 0.0...

United States v. SCRAP, 412 U.S. 669 (1973) ...........

Regulations

Statutes

28 U.S.C.:

I a AE Oe ga co crs

i? cinta! Cease ad eee Gia 6's eb be bah Oblcmm soc

A ds a ee a ai oe

28 USC. (Declaratory Judgement Aet) §§ 2201-2202

42 USA National Environmental Polley Aet of 1969):

1.9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21

S$ 4321, et seq

- ~ & bo

iv TABLE OF AuTHORITIES CITED

Pages

i Pe re 14

DGD vccccvunes sus nsieeca nw biatenienae 12

SGDGED cvvceeeéuvadestecedseneeseeeeee i8

43 U.S.C. (Taylor Grazing Act) :

Oe Ff ee er ne 4, 5, 6, 7, 12, 13, 18, 19, 21

Miscellaneous

Pub. L. No. 73-482, §2 (Jume 28, 1934) ................. 13

California EIR Monitor at 07 (Mareh 24, 1975) ......... 14

Department of the Interior News Release, “Interior Sets a

13-Year Schedule for Preparing Environmental Impact

Statements on Grazing Lands,” June 20, 1975, p. 3 .... 10

Final Environmental Impact Statement, Livestock Urazing

Management on National Resource Lands, Vol. I, at

BEES Bb... cccccsvscccescencsscetsensetseeneneneunneel 16

eer

Iu the Supreme Court

OF THE

United States

OCTOBER “ERM, 1975

No.

Paciric LegaL FouNDATION AND PUBLIC

Lanps CounciL, INc.,

Petitioners,

vs.

NaturaL Resources Derense Counci, INc., et al.,

and

THOMAS KLEPPE, SECRETARY OF THE INTERIOR,

and Curtis BerkLuNb, DirRecToR OF THE

Bureau or LAND MANAGEMENT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the District of Columbia Circuit

The petitioners, Pacific Legal Foundation and the

Public Lands Council, Inec., respectfully pray that a

writ of certiorari issue to review the Judgment of

the United States Court of Appeals for the District

of Columbia Circuit entered in this proceeding on

January 16, 1976."

OPINIONS BELOW

The Memorandum Opinion and Judgment of the

United States District Court for the District of

Columbia are reported in 388 F. Supp. 829, and are

reproduced in Appendix D.

A motion by Pacific Legal Foundation (PLF) and

the Publie Lands Council, Ine. (PLC), to reconsider

that Opinion and Judgment was denied by Order of

the District Court dated January 28, 1975. This un-

reported Order is reproduced in Appendix F.

The unreported Final Judgment of the District

Court dated June 18, 1975, is reproduced in Appen-

dix F.

The unreported Judgment of the United States

Court of Appeals for the District of Columbia Cir-

euit dated January 16, 1976, is reproduced in Ap-

pendix G.

JURISDICTION

The Judgment of the Court of Appeals (Appendix

G) was entered January 16, 1976. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

1In addition to the respondents named in the eaption of this

case, the following persons and organizations were co-plaintiffs

with the Natural Resources Defense Council, Ine., throughout

the proceedings below and should be deemed respondents herein:

Ada County Fish and Game League, National Council of Public

Land Users, Nevada Outdoor Reereation Association, Inec., Ore-

gon Environmental Council, and James Morgen. These respond-

ents will be referred to collectively as “NRDC.”

QUESTIONS PRESENTED

The first question is whether an agency of the fed-

eral government, whose primary duty is environmen-

tal protection, may comply with the environmental

impact statement requirement of the National En-

rironmental Policy Act by preparing, as required by

the agency’s statutory and regulatory scheme, the

functional equivalent of an environmental impact

statement.

The second question presented is whether, under

the National Environmental Policy Act, a court may

intervene in an agency’s decision-making process and

compel the agency to abandon its announced policy

of preparing a program environmental impact state-

ment and subsequent detailed environmental state-

ments and analyses, and impose upon the agency the

duty of preparing hundreds of geographically ori-

ented environmental statements.’

The third question presented is whether an agency,

which has taken the “hard look” at environmental

2Tn this case, the District Court answered this question in the

affirmative. In Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir.

1975), the United States Court of Appeals for the District of

Columbia Cireuit similarly sanctioned court interference in the

agency process, relying in part on the decision of the District

Court in the instant case for its rationale. See 514 F.2d at 872

n.23. This Court has granted certiorari in Sierra Club (sub

noms. Kleppe v. Sierra Club, No. 75-552, and American Electric

Power System v. Sierra Club, No. 75-561, 44 U.S.L.W. 3397

(U.S. Jan. 13, 1976)) thereby questioning this entire line of

decisions in the federal courts of the District of Columbia.

Because of the doubt already east on the validity of the deei-

sion in the instant case, it is respectfully suggested that this

Court may wish to hold consideration of the present petition in

abeyanee pending a decision on the merits in Kleppe and Amer-

ican Electric Power System. That decision may provide grounds

for a summary reversal of the present case.

matters required by the National Environmental Pol-

icy Act and prepared a detailed environmental im-

pact statement, can be compelled to go bef¥ond the

reasonable requirements of the Act and prepare hun-

dreds of duplicative and wasteful impact statements

when the environmental ramifications of the agency’s

project have already been adequately explored.

STATUTORY AND REGULATORY PROVISIONS INVOLVED

The relevant portions of the National Environ-

mental Poliey Act of 1969 (NEPA) (42 U.S.C.

$§ 4321, et seqg.), the Taylor Grazing Act (43 U.S.C.

§§ 315, et seq.), and the Federal Range Code (43

C.F.R. §§ 4110.0-2, ef seq.) are set forth in Appen-

dices A, B, and C respectively.

STATEMENT OF THE CASE

A. Jurisdiction of the District Court

The jurisdiction of the United States District

Court for the District of Columbia was invoked by

NRDC under the following statutes: 28 U.S.C. § 1361

(mandamus); 5 U.S.C. §§ 701-706 (Administrative

Procedure Act); 28 U.S.C. § 1331 (federal question) ;

28 U.S.C. 89 2201-2202 (Declaratory Judgment Act) ;

and 42 U.S.C. $$ 4321, et seg. (NEPA).

The District Court found that it lad jurisdiction

under NEPA, o

cs Ne ee

B. The Attempt to Eliminate Livestock from the Public Lands

of the United States

This suit was instituted by NRDC on October 30,

1973, seeking a declaration that NEPA (App. A,

infra at p. 1) applies to the issuance and renewal

of grazing permits by the Bureau of Land Manage-

ment (BLM) of the Department of the Interior.

The Complaint sought to enjoin issuance or

renewal of grazing permits in all of the fifty-two fed-

eral grazing districts comprising 171 million acres of

the public lands of the United States until the BLM

prepared, publicly circulated, and considered multiple

environ \ental impact statements (EIS) under NEPA

discussing the federal defendants’ practice of issuing

or renewing such permits to private individuals for

grazing livestock.

This suit was the culmination of the environmental-

ists’ drive to eliminate privately owned herds of graz-

ing animals from the public lands. NRDC alleged

that private livestock owners who hold BLM grazing

permits have allowed the publie lands to deteriorate

under the neglectful supervision of BLM. These

charges are baseless. The BLM has administered these

lands carefully, and the permit holders, whose live-

lihoods depend on maintenance of the environmental

quality of the lands, have acted to prevent the de-

terioration of those lands.

The BLM is charged with the custody and manage-

ment of millions of acres of publie lands. Since pas-

sage of the Tavlor Grazing Act, 48 U.S.C. §§ 315, et

seq. (App. B, infra at p. 8) in 1934, BLM and

its predecessor agency, the Grazing Service, have

achieved remarkable progress in improving the form-

erly badly deteriorated state of the publie lands.

Nevertheless, at the time NRDC’s suit was instituted,

progress had slowed and certain factions within BLM

were searching for a method of obtaining increased

funding in order to expand their regulatory activities

beyond those permitted by the Taylor Grazing Act.

The NRDC suit was seen by persons within BLM as

a method of revamping BLM’s management programs

and increasing control of the public lands through

increased funding and personnel. BLM personnel rea-

soned that if the Burean were ordered by a court to

prepare EIS’s in regard to grazing permits, then

BLM’s position in requesting large budget increases

from Congress would be greatly strengthened.

Those persons holding grazing permits saw BI.M’s

maneuvers as an attempt by an increasingly central-

ized bureaucracy to extend its power over an industry

struggling for survival. In an affidavit, one permit

holder stated that the activities of BLM personnel

are those of “negatively oriented empire builders.”

During the course of this suit, there have been

15,000 permits for use of the public lands for grazing

outstanding. Thus, there are tens of thousands of

persons in the eleven western states who are depend-

ent on continued access to the public lands as the

source of their livelihood, the grazing of livestock.

Further, approximately fourteen percent of all live-

stock in the United States spend a part of their lives

erazing on those lands. Indeed, the economies of large

regions and of entire states are dependent upon ready

access to the lands by privately owned herds of graz-

ing animals.

Viewing events at the time suit was instituted, the

grazing permit holders felt besieged on two fronts:

on one hand, NRDC was actively trying to run them

ofi the range in a crusade to “save the environment”;

on the other, BLM, which is nominally charged with

fostering their interests under the Taylor Grazing

Act, was bowing to NRDC’s demands by voluntarily

preparing an EIS. Thus the Pacifie Legal Founda-

tion and the Public Lands Council, Inec., intervened

in the litigation to inject a degree of objectivity.

PLF and PLC represent two distinct interests.

PLC represents the real parties in interest. It is an

association of grazing permittees whose livelihoods de-

pend upon those permits. PLF, a nonprofit, tax-

exempt, public interest legal organization, intervened

to voice the interest of the public in this litigation,

an interest, at a time of both high inflation and re-

cession, in continued access at reasonable prices to

red meat, the chief source of dietary protein.

PLF and PLC feared (and still fear) that the

financial burden of preparing numerous EIS’s would

be passed on to the grazing permittees, many of whose

operations are marginally profitable. Furthermore.

they fear that any delay or restriction in the issuance

or renewal of grazing permits would greatly disrupt

the livestock industry, those communities and states

denendent upon that industry, as well as the consum-

ing public which will be forced by the resulting

scarcity of red meat to pay higher prices. Addition-

ally, they fear that the preparation of hundreds of

EIS’s will serve no useful purpose; rather, they will

invite controversy—especially in the form of suits

seeking to challenge their sufficiency.

Throughout this litigation BLM was preparing a

“program” EIS, i.e. one that dealt with the agency’s

overall livestock grazing managment program on the

public lands. It was BLM’s position (until it was

ordered otherwise by the District Court) that: 1)

NRDC’s suit was premature, since the program EIS

was in draft form during the law suit; and 2) the

program EIS, supplemented by BLM from time to

time by further EIS’s met NEPA’s requirements.

Unfortunately, the District Court refused to await

release of the final version of the program EIS. It

issued its opinion December 30, 1974. The program

EIS was dated December 31, 1974.

C. The District Court’s Opinion and Subsequent Events

The Memorandum Opinion and Judgment of the

District Court (App. DP, tufra at p. 46) granted

NRDC’s motion for summary judgment and denied

the motions of the federal defendants and of PLE

and PLC for summary judgement. Deelarine that

“to wait until the filing of the final provram-

matie EIS would be a useless act” (App. D, tufra at

p. 58), the Court ordered the BLM to prepare

multiple ELS’s on a geographically specific basis and

|):

to undertake negotiations with NRDC to set a sched-

ule for such EIS’s.®

NRDC and BLM conducted negotiations for ap-

proximately three months. Representatives of PLF

and PLC were not included in those negotiations.

The climax of these meetings was the submission to

the District Court in April 1975 of the Joint Motion

of the Plaintiffs and Federal Defendants for the

Court to Enter Proposed Judgment in Accordance

with Settlement Agreement.

This Agreement is the tool long sought by the

NRDC to drive grazing animals from the public

lands. By its Final Judgment (App. F, infra at p.

76) dated June 18, 1975, the District Court sane-

tioned the NRDC/BLM Agreement which:

(a) Ordered BLM to prepare a minimum of 212

EIS’s by 1988 for geographically delineated

areas of the public lands;

(b) Gave NRDC the right to litigate the ade-

quacy under NEPA of each and every one

of the 212 (or more) EIS’s;

submit notice to NRDC until 1988 whenever

any material or immaterial deviation from

the Agreement should occur, thereby grant-

ing to an advocatorial interest group dis-

3A motion by PLF and PLC for reconsideration of the Decem-

ber 30, 1974, judgment, in light of subsequently discovered evi-

denee, was denied by the District Court on January 28, 1975.

See App. E, infra at p. 74.

eretionary power over an important agency

of the federal government; and

(d) Approved BLM’s agreement to dismiss its

appeal from the District Court’s Judgment.

BLM abided by its agreement, dismissed its appeal,

and commenced preparation of the first of the 212

EIS’s. Contemporaneously, BLM admitted that it

knew of no legal basis for obligating the Department

of the Interior to make expenditures over a thirteen-

year period, since departmental appropriations are

on a yearly basis.‘

D. The Court of Appeals’ Decision

Thus PLF and PLC alone pursued their separate

appeal from the decision of the District Court. On

January 16, 1976, the United States Court of Appeals

for the District of Columbia Circuit affirmed the

Judgment of the District Court without opinion.’ See

App. G, infra at p. 34.

REASONS FOR GRANTING THE WRIT

The significance of this case, both within its factual

limits and as broad legal precedent, cannot be over-

stated.

The District Court’s decision has been the basis

for an agency’s demanding $55 million from Congress

in order to expand its bureaucratic domain,

‘Department of the Intcrior News Release, “Interior Sets a

13-Year Schedule for Preparing Environmental Impact Statements

on Grazing Lands,” June 20, 1975, at 3.

5Sinee the Court of Appeals issued no written opinion, the

opinion of the District Court will be referred to hereinafter as

the final decision on the merits.

The decision directly and adversely affects the lives

of hundreds of thousands of persons in the Western

United States dependant (in many cases for genera-

tions) upon ready access to the publie lands for live-

stock grazing. The decision gives those who would

drive the grazing permit holders from the “public”

lands the tool for doing so,

The decision ensures that the BLM’s grazing man-

agement program will be tied up in federal courts

for decades because of NRDC’s express reservation in

the court-approved Agreement of the right to chal-

lenge each of the 212 EIS’s.® Thus the decision allows

disruption of a wise and environmentally sound use

of the public lands of the United States.’

By the decision, the District Court unwisely injected

itself into an agency’s statutorily mandated policy

of environmental protection, thwarted that policy, and

caused the agency to abandon proven methods of

environmental protection.

As such, the decision is of substantial importance

to large portions of the population in the Western

United States; adversely affects the environmental

quality of the public lands of the United States; and

conflicts with the language of NEPA, two decisions

of this Court, and decisions of other courts of appeals.

‘This has been confirmed by a recent motion to the District

Court for a six-month postponement in the completion date for

the Challis, Idaho, EIS (federal defendants’ Notice of Pro-

posed Deviation from Scheduled Preparation of Environmental

Impact Statements on Livestock Grazing, dated April 2, 1976).

7C'f. United States v. Coleman, 390 U.S. 599, 601 (1968),

where certiorari was granted “because of the importance of the

decision to the utilization of the publie lands.”

1. Under the Taylor Grazing Act (App. B, infra

at p. 8), the Secretary of the Interior (and by

delegation, the BLM) is charged with the environ-

mental protection of the public lands of the

United States. Rules and regulations have been

promulgated under that Act which were designed to

stop the deterioration of the public lands which had

taken place up to the time of the Act. By its decision,

the District Court seeks to superimpose the NEPA

EIS process on the presently effective and environ-

mentally protective methods mandated by the Taylor

Grazing Act and its rules and regulations. The effect

of this will be to revamp the entire program of public

lands management because of the limited funding and

personnel available to BLM. The District Court’s

decision has already caused BLM to abandon range

management methods heretofore employed under the

Taylor Grazing Act in order to prepare the 212 EIS’s.

The result will be the repeal of the Taylor Grazing

Act using NEPA.

This Court’s Uneted States v. SCRAP, 412 U.S. 669,

694 (1973) (SCRAP 1), held that NEPA was not

intended to repeal other statutes by implication, This

Court based its ruling on 42 U.S.C. § 4335 (“The

policies and goals set forth in this chapter are sup-

plementary to those set forth in existing authoriza-

tions of Federal agencies”) and 42 U.S.C. § 4334

(“Nothing in section 4332 or 4333 of this title shall

in any way affect the specific statutory obligations of

any Federal agency .. . to comply with eriteria or

standards of environmental quality ... ”).

The District Court here has mandated a gross

interference with the BLM’s duties under the Taylor

Grazing Act, thereby partially repealing that <Aet.

Its opinion therefore confiicts with an applicable deci-

sion of this Court.

2. In administering the public lands, the BLM is

charged by the Taylor Grazing Act and its rules and

regulations with protection of the environment of

those lands. The primary purpose of the Taylor

Grazing Act was to stop injury to the public grazing

lands by preventing overgrazing and soil deteriora-

tion. Pub. L. No. 73-482, § 2 (June 28, 1934). Under

the mandates of the Act, the BLM has developed

elaborate regulations (App. C, infra at p. 31)

which, as implemented, effectively evaluate all

environmental aspects of use of the lands, and amount

to the ‘‘functional equivalent” of an EIS under

NEPA.

Numerous courts, recognizing the waste inherent in

evaluating the same aspects of the environment twice,

have exempted agencies from NEPA when the agen-

cies are in functional compiiance with the Act. The

latest® judicial exemption from NEPA was announced

8See Anaconda Company v. Ruckelshaus, 482 F.2d 1301, 1305-

1306 (10th Cir. 1973): Buckeye Power, Inc. v. Environmental

Protection Agcy., 481 F.2d 162, 175 (6th Cir. 1973); Duquesne

Light Co. v. Environmental Protection Agcey., 481 F.2d 1, 9

(3d Cir. 1973); Appalachian Power Co. v. Environmental Pro.

Aqey., 477 F.2d 495, 508 (4th Cir. 1973); Getty Oil Company

(Eastern Operations) v. Ruckelshaus, 467 F.2d 349, 359 (3d Cir.

1972), cert. denied, 409 U.S. 1125 (1973), all of which found

that “funetional compliance” with NEPA sufficed.

In addition, the Resources Agency of the State of California

has categorically exempted from that state’s NEPA analog ali

in State of Wyoming v. Hathaway, 525 F.2d 66 (10th

Cir. 1975), petition for cert. filed sub nom, State of

Wyoming v. Kleppe, 44 U.S.L.W. 3494 (U.S. Mar. 2,

1976 (No. 75-1190)), where the Tenth Cireuit ex-

empted the Environmental Protection Agency from

NEPA on the ground that its specific, environmentally

protective activities under the Federal Insecticide,

Fungicide, and Rodenticide Act amount to the “fune-

tional equivalent” of an EIS. The Tenth Circuit noted

that:

... NEPA does not call for any particular frame-

work or procedure and so long as the impact

statement is relevant and thorough it need not

be extensive. State of Wyoming v. Hathaway,

supra at 72.

This ruling reflects the flexibility necessarily inher-

ent in a statute, such as NEPA, which establishes

broad national policy (42 U.S.C, § 43821) and which

supplements rather than supersedes existing agency

authorizations (42 U.S.C. §§ 4334-4335),

The ruling of the District Court in the instant case

conflicts philosophically and legally with the State of

Wyoming decision. Here the District Court declined

to view the BLM’s procedures as the functional equiv-

alent of an EIS (App. D, infra at pp. 51-52);

“regulatory programs of public agencies whose purpose includes

environmental protection and whose process involves the fune-

tional equivalent of an [impact statement].” See California EIR

Monitor at OT (March 24, 1975).

Also, see Gulf Oil Corporation v. Simon, 502 F.2d 1154, 1157

(Em. App. 1974), and Dry Color Mfrs. Ass’n. Inc, v. Depart-

ment of Labor, 486 F.2d 98, 107-108 (3d Cir. 1973), which

exempted federal agency action from NEPA on other grounds,

rather, it sought to shap BLM’s actions for decades

to come by the rigid imposition of 212 formal EIS’s.

In declining to grant BLM a limited exemption

from NEPA, the Court of Appeals appears to be

reversing or at least limiting a line of its own cases.

These held that there is:

... little need in requiring a NEPA statement

from an agency whose raison d’etre is the pro-

tection of the environment and whose [decisions

are] necessarily infused with the environmental

considerations so pertinent to Congress in design-

ing the statutory framework, .. . International

Harvester Company v. Ruckelshaus, 478 F.2d 615,

650 n.130 (D.C. Cir. 1973).°

By refusing to apply the legal principle enunciated

in International Harvester to the BLM/publie lands

context, the Court of Appeals has cast doubt on a

long line of its own well-reasoned cases, issued an

opinion which conflicts with the holdings of the Third,

Fourth, Sixth and Tenth Circuits, and violated

national environmental policy as set forth in NEPA,

Thus this Court is faced with deciding an extremely

important question of federal law: whether NEPA is

flexible and permits attainment of its goals without

the formal EIS process, especially where an agency

%Accord, Environmental Def. F., Inc. v. Environmental Pro.

Agcey., 489 F.2d 1247, 1256-1257 (D.C. Cir. 1973); Esser Chem-

ical Corporation v. Ruckelshaus, 486 F.2d 427, 431 (D.C. Cir.

1973), cert. denied sub nom. Appalachian Power Co. v. Environ-

mental Protection Agency, 416 U.S. 969 (1974); and Portlend

Cement Association v. Ruckelshaus, 486 F.2d 375, 384-387 (D.C.

Cir. 1973), cert. denied, 417 U.S. 921 (1974).

is mandated by law to protect the environment and

prepares the functional equivalent of an EIS.

3. During the course of proceedings in the District

Court, the BLM was voluntarily preparing a broad,

program EIS to assess the cumulative environmental

impacts of its grazing permit program on the public

lands. The BLM had also announced its immediate

plans to prepare three more “generic” EIS’s’® and

other supplemental EIS’s for smaller land areas.

Without awaiting release of the first of those docu-

ments, the District Court declared the EIS policy

of BLM illegal, declared the program EIS irrelevant,

and ordered BLM to prepare 212 separate, site-spe-

cific EIS’s. See App. D, infra at p. 46, and App. F,

infra at p. 76. In doing so, the Court acknowledged

that it probably should have waited at least for re-

lease of the program EIS. App. D, infra at p, 58.

Nevertheless, it declared the program EIS irrelevant

and ordered a sweeping change in BLM. policy.

First, it should be noted that this type of judicial

intervention in the reasonable exercise of agency dis-

cretion under NEPA is already under review in this

Court. See Kleppe v. Sierra Club, No. 75-552, and

American Electric Power System v. Sierra Club, No.

75-561, cert. granted, 44 U.S.L.W. 3397 (U.S. Jan.

13, 1976). The present case presents at least as im-

portant a question of lack of judicial restraint as that

presented in the two cases already before this Court.

10See Final Environmental Impact Statement, Livestock Graz-

ing Management on National Resource Lands, Vol. I, at III-6 n.1.

Moreover, the decision in the instant case conflicts

directly with that of Natural Resources Def. Coun.,

Ine, v. Tennessee Val, Auth., 367 F. Supp. 122 (E.D.

Tenn, 1973), aff’d., 502 F.2d 852 (6th Cir. 1974). In

the 7.V.A. case, the District Court approved T.V.A.’s

preparation of a program EIS, without preparation

of contract-specifie EIS’s."'

In the instant case, the District Court was aware

of the 7.V.A. decision and went to great lerigths to

distinguish it factually. App. D, infra at p, 61.

In drawing a factual distinction, however, the Court

missed the point that it was rationalizing its own inter-

ference with agency discretion and thwarting BLM’s

reasonable, voluntary NEPA evaluations.

NEPA announced a national policy'* to be applied

to the special facts and situations within each agency’s

area of expertise as the agency sees fit. When an

agency voluntarily decides to abide by its NEPA

responsibilities by preparing a program EIS, followed

by such supplemental environmental assessments as

it deems necessary, it is not the province of a court

to interfere with that policy and thereby reshape an

agency and jeopardize the livelihoods of thousands

of citizens who depend on the continuity of the

agency’s policy.

11See also Cartwright Van Lines, Inc. v. United States, 400

F. Supp. 795 (W.D. Mo. 1975), which approved an agency’s

preparation of a national EIS, followed by individualized en-

a assessments (not EIS’s) as localized decisiens are

made.

1242 U.S.C. § 4321: “The purpose. of this chapter are: To

declare a national policy ... .” See 42 U.S.C. § 4331(b).

Also in conflict with the District Court’s decision

is East Tennessee Energy Group v. Scamans, ........ F.

Supp. ....... , 7 ERC 2144, 2145 (D.D.C. 1975), which

stated that so long as the program EIS sub

sumes the individual projects, project-specific EIS’s

need not be prepared. Indeed, as other courts have

held, segmentation of an overall program may be

improper where the impacts interrelate and affect the

whole area concerned. See Heology Center of Louisi-

ana, Ine. v. Coleman, 515 F.2d 860, 870 (5th Cir.

1975), and Jones v. Lynn, 477 F.2d 885, 890-891 (1st

Cir. 1973).

In a similar vein are the Council on Environmental

Quality’s'’® Guidelines on Preparation of Environ-

mental Impact Statements which require preparation

of broad, program statements, followed by statements

on major individual actions. 40 C.F.R. § 1500.6(d)

(1). The BLM was embarked on a program that

would have complied literally with CEQ’s Guidelines

until blocked by the District Court.

Finally, in the context of BLM’s management of

the public lands, it would be wasteful to prepare a

separate EIS for each of the fifty-two grazing dis-

tricts or portions thereof. The areas all have one thing

in common: they are grazing lands and cither suitable

or not suitable for use as such. To restate this fact

212 different times when it has already been stated

in an adequate manner once in. the program EIS and

several times under the Taylor Grazing Act’s pro-

13° EQ is the agency charged by NEPA with overseeing federal

agency compliance with NEPA. 2 U.S.C. § 4344(3).

cedures would be ludicrous and wasteful.'* At best,

the 212 EIS’s will be duplicative; at their probable

worst, one basic EIS will be prepared from which

hundreds will be “mimeographed” in which only the

words and facts are rearranged so it seems a new

document has been prepared,

This type of pro forma papershuffling is not the

goal of NEPA. The decision-makers in BLM have

been put on full and adequate notice of the environ-

mental effects of their actions by the program EIS.

They need not be reminded of the same basic facts

212 different times over the next thirteen years.

4, The decision of the Court below conflicts with

an applicable decision of the Supreme Court: Aber-

deen & Rockfish R. Co. v. SCRAP, 422 U.S. 289

(1975) (SCRAP II). That case held that where

environmental issues pervade an agency proceeding,

a project need not be stopped and begun over again,

even though a formal EIS or EIS’s did not accompany

the project through the decision-making process. Id.

at 322-328. As long as the agency takes a “hard look”

at environmental exigencies, literal compliance with

NEPA is not required. 7d. at 322.

The BLM is charged with protection of the environ-

ment: it is the “Public Lands Environmental Protee-

tion Agency,” even though the word “environment”

is not in its name. The Taylor Grazing Act and regu-

14In its refusal to await release of the program EIS, the Dis-

trict Court apparently overlooked the fact that the program EIS

dwells at considerable length (Vol. I, at II-1 through II-90) on

the localized environments of the publie lands.

lations mandate a “hard look” at the environment.

For the Court to require 212 EIS’s'® is to force more

upon BLM than NEPA requires. This is “environ-

mental overkill.”

NEPA establishes a national policy and to effectuate

that policy, agencies are to prepare “a detailed state-

ment... on... the environmental impact of the

proposed action.” 42 U.S.C. § 4332(2)(C). This seem-

ingly simple statement has given birth to the rigid,

formalized environmental impact statement, a term

which has become a formal institution in many agen-

cies of the federal government. Yet the legislative

history of NEPA suggests that Congress, in requiring

EIS’s, was not imposing the extensive network of

formalized bureaucratic paperwork envisioned by the

courts below in this case. See H. R. Rep. No. 378, 91st

Cong., lst Sess. (1969), which sets forth the under-

standing of Congress that the NEPA/EIS process

would cost the federal government $1 million per year

for all agencies. Here, by BLM’s own estimates, BLM

alone will spend an average of $4.23 million per year

for the next thirteen years. Thus somewhere along

the line, federal courts have lost sight of NEPA’s

goal: to compel agencies, which had never taken en-

vironmental exigencies into consideration, to incor-

porate such matters into their regular decision-making

process. Here, that problem never existed,

15Nor is there any evidence in the record below to support the

Court’s determination that 212 EIS’s must be prepared, other

than the agreement between BLM and NRD that this number

would suffice. Yet evidence abounds that this number will be

costly, duplicative, and a bureaucrat’s dream-come-true,

The Taylor Grazing Act and regulatior€ :nandate

that environmental matters pervade the BLM decision-

making process. Moreover, BLM has gone beyond the

policy requirements of NIZPA and has prepared an

EIS which takes a “hard look” at the environment

of the public lands, as suggested in SCRAP II. To

require 212 additional formalized, repetitive state-

ments is to shackle a proven program of public lands

protection, This will literally stop the BLM’s program

and force it to begin anew. Such a ruling contravenes

the underlying spirit of NEPA and conflicts »ith the

reasonable interpretation of NEPA announced by this

Court in SCRAP I. .

CONCLUSION

The petition for a writ of certiorari should be

granted,

Respectfully submitted,

RonaLtp A. ZuUMBRUN,

RayMonpD M. Momboisse,

Max BarasH,

Counsel for Petitioners.

GLENN E. Davis,

Of Counsel.

April 13, 1976.

(Appendices Follow)

eee

Appendix A

THE NATIONAL ENVIRONMENTAL POLICY ACT

(42 U.S.C. §§ 4321, et seq.)

PURPOSE

Sec. 2. The purposes of this Act are: To declare a

national policy which will encourage productive en-

joyable harmony between man and his environment;

to promote efforts which will prevent or eliminate

damage to the environment and biosphere and stimu-

S late the health and welfare of man; to enrich the

A p p E N D | C E understanding of the ecological systems and natural

resources important to the Nation; and to establish a

Council on Environmental Quality.

: TITLE I

DECLARATION OF NATIONAL

ENVIRONMENTAL POLICY

See. 101. (a) The Congress, recognizing the pro-

found impact of man’s activity on the interrelations

of all components of the natural environment, partic-

ularly the profound influences of population growth,

high-density urbanization, industrial expansion, re-

source exploitation, and new and expanding techno-

logical advances and recognizing further the critical

importance of restoring and maintaining environmen-

tal quality to the overall welfare and development of

man, declares that it is the continuing policy of the

Federal Government in cooperation with State and

local governments, and other concerned public and

private organizations, to use all practical means and

. measures, including financial and technical assistance,

in a manner calculated to foster and promote the gen-

eral welfare, to create and maintain conditions under

which man and nature can exist in productive har-

mony, and fulfill the social, economic, and other re-

quirements of present and future generations of

Americans.

(b) In order to carry out the policy set forth in

this Act, it is the continuing responsibility of the

Federal Government to use all practicable means,

consistent with other essential considerations of na-

tional policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end

that the Nation may—

(1) fulfill the responsibilities of each genera-

tion as trustee of the environment for succeeding

generations ;

(2) assure for all Americans safe, healthful,

productive, and esthetically and culturally pleas-

ing surroundings ;

(3) attain the widest range of beneficial uses

of the environment without degradation, risk to

health or safety, or other undesirable and unin-

tended consequences ;

(4) preserve important, historic, cultural, and

natural aspects of our national heritage, and

maintain, wherever possible, an environment

which supports diversity and variety of individual

choice ;

(5) achieve a balance between population and

resource use which will permit high standards of

livine and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recyeling

of depletable resources.

should enjoy a healthful environment and that each

person has a responsibility to contribute to the pres-

ervation and enhancement of the environment.

Sec, 102. The Congress authorizes and directs that,

to the fullest extent possible: (1) the policies, regula-

tions, and public laws of the United States shall be

interpreted and administered in accordance with the

policies set forth in this Act, and (2) all agencies of

the Federal Government shall—

(A) utilize a systematic, interdisciplinary ap-

proach which wiil insure the integrated use of the

natural and social sciences and the environmental

design arts in planning and in decisionmaking

which may have an impact on man’s environment;

(B) identify and develop methods and pro-

eedurcs, in consultation with the Council on En-

vironmental Quality established by title II of this

Act, which will insure that presently unquantified

environmental amenities and values may be given

appropriate consideration in decisionmaking

along with economic and technical considerations ;

on proposals for legislation and other major

Federal actions significantly affecting the quality

of the human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented,

(iii) alternatives to the proposeu action,

(iv) the relationship hetween local short-

term uses of man’s environment and the

maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be imple-

mented.

Prior to making any detailed statement, the re-

sponsible Federal official shall consult with and

obtain the comments of any Federal agency which

has jurisdiction by law or special expertise with

respect to any environmental impact involved.

Copies of such statement and the comments and

views of the appropriate Federal, State, and local

agencies, which are authorized to develop and

enforce environmental standards, shall be made

available to the President, the Council on Envi-

ronmental Quality and to the public as provided

by section 552 of title 5, United States Code, and

shall accompany the proposal through the exist-

ing ageney review processes ;

(D) <Any detailed statement required under

sub-paragraph (C) after January 1, 1970, for any

major Federal action funded under a program of

grants to States shall not be deemed to be legally

insufficient solely by reason of having been pre-

pared by a State agency or official, if:

(1) the State agency or official has statewide

jurisdiction and has the responsibility for such

action,

(11) the responsible Federal official furnishes

guidance and participates in such preparation,

(iii) the responsible Federal official inde-

pendently evaluates such statement prior to its

approval and adoption, and

(iv) after January 1, 1976, the responsible

Federal official provides early notification to,

and solicits the view of, any other State or

any Federal land management entity of any

action or any alternative thereto which may

have significant impacts upon such State, or

affected Federal land management entity and,

if there is any disagreement on such impacts,

prepares a written assessment of such impacts

and views for incorporation into such detailed

statement.

The procedures in this subparagraph shall not

relieve the Federal official of his responsibilities

for the scope, objectivity, and content of the en-

tire statement or of any other responsibility

under this Act; and further, this subparagraph

does not affect the legal sufficieney of statements

prepared by State agencies with less than state-

wide jurisdiction,

(E) study, develop, and describe appropriate

alternatives to recommended courses of action in

any proposal which involves unresolved conflicts.

concerning alternative uses of available resources ;

(F) recognize the worldwide and long-range

character of environmental problems and, where

consistent with the foreign policy of the United

States, lend appropriate support to initiatives,

resolutions, and programs designed to maximize

international cooperation in anticipating and pre-

venting a decline in the quality of mankind’s

world environment;

(G) make available to States, counties, munic-

ipalities, institutions, and individuals, advice

and information useful in restoring, maintaining,

and enhancing the quality of the environment:

(H) initiate and utilize ecological information

in the planning and development of resource-

oriented projects; and

(I) assist the Council on Environmental Qual-

ity established by title II of this Act.

See. 103. All agencies of the Federal Government

shall review their present statutory authority, admin-

istrative regulations, and current policies and pro-

cedures for the purpose of determining whether there

are any deficiencies or inconsistencies therein which

prohibit full compliance with the purposes and pro-

visions of this Act and shall propose to the President

not later than July 1, 1971, such measures as may be

necessary to bring their authority and policies into

conformity with the intent, purposes, and procedures

set forth in this Act.

See. 104. Nothing in Section 102 or 103 shall in any

way affect the specific statutory obligations of any

Federal agency (1) to comply with criteria or stand-

ards of environmental quality. (2) to coordinate or

consult with any other Federal or State agency, or

(3) to act, or refrain from acting contingent upon the

recommendations or certification of any other Federal

or State agency.

See. 105. The policies and goals set forth in this Act

are supplementary to those set forth in existing au-

thorizations of Federal agencies.

* * * * *

Appendix B

THE TAYLOR GRAZING ACT

As Amended and Supplemented

(43 U.S.C. §§ 315, et seq.)

AN ACT

To stop injury to the public grazing lands by

preventing overgrazing and soil deteriora-

tion; to provide for their orderly use, im-

provement, and development; to stabilize the

livestock industry dependent upon the public

range; and for other purposes, Approved

June 28, 1934 (48 Stat. 1269), as amended

June 26, 1936 (49 Stat. 1976), July 14, 1939

(53 Stat, 1002), July 30, 1947 (61 Stat. 630),

August 6, 1947 (61 Stat. 790), June 19, 1948

(62 Stat. 533), and May 28, 1954 (68 Stat.

151).

Be Iv Enacrep By Tue Senate AND House OF

REPRESENTATIVES Or THE UNITED STATES Or AMERICA

In ConcGress AsseEMBLED, That in order to promote the

highest use of public lands pending its final disposal,

the Secretary of the Interior is authorized, in his dis-

cretion, by order to establish grazing districts or addi-

tions thereto and/or to modify the boundaries thereof

of vacant, unappropriated, and unreserved lands from

any part of the public domain of the United States

(exclusive of Alaska), which are not im national

forests, national parks and monuments, Indian reser-

vations, revested Oregon and California Railroad

grant lands, or revested Coos Bay Wagon Road grant

lands, and which in his opinion are chiefly valuable

for grazing and raising forage crops; PROVIDED,

That no lands withdrawn or reserved for any other

purpose shall be included in any such district except

with the approval of the head of the department havy-

ing jurisdiction thereof. Nothing in this Act shall be

construed in any way to diminish, restrict, or impair

any right which has been heretofore or may be here-

after initiated under existing law validly affecting the

public lands, and which is maintained pursuant to

such law except as otherwise expressly provided in

this Act, not to affect any land heretofore or here-

after surveyed which, except for the provisions of

this Act, nor to affect any land heretofore or here-

nor as limiting or restricting the power or authority

of any State as to matters within its jurisdiction.

Whenever any grazing district is established pursuant

to this Act, the Secretary shall grant to owners of

land adjacent to such district, upon application of

any such owner, such rights-of-way over the lands

included in such district for stock driving purposes as

may be necessary for the convenient access by any

such owner to marketing facilities or to lands not

within such district owned by such person or upon

which such person has stockgrazing rights. Neither

this Act nor the Act of December 29, 1916 (39 Stat.

862: U.S.C... title 48, sees. 291 and following). com-

monly known as the ‘Stock Raising Homestead Act,”

shall be construed as limiting the authority or policy

of Congress or the President to include in national

forests public lands of the character described in

section 24 of the Act of March 3, 1891 (26 Stat. 1103;

U.S.C., title 16, sec. 471), as amended, for the pur-

poses set forth in the Act of June 4, 1897 (30 Stat. 55;

U.S.C., title 16, sec. 475), or such other purposes as

Congress may specify. Before grazing districts are

created in any State as herein provided, a hearing

shall be held in the State, after public notice thereof

shall have been given, at such location convenient for

the attendance of State officials, and the settlers,

residents, and livestock owners of the vicinity, as may

be determined by the Secretary of the Interior. No

such district shall be established until the expiration

of ninety days after such notice shall have been given,

nor until twenty days after such hearing shall be held:

PROVIDED, HOWEVER, That the publication of

such notice shall have the effect of withdrawing all

public lands within the exterior boundary of such

proposed grazing district from all forms of entry or

settlement. Nothing in this Act shall be construed as

in any way altering or restricting the right to hunt or

fish within a grazing district in accordance with the

laws of the United States or of any State, or as vest-

ing in any permittee any right whatsoever to interfere

with hunting or fishing within a grazing district.

(43 U.S.C., section 315)

Sec. 2. The Secretary of the Interior shall make

provision for the protection, administration, regula-

tion, and improvement of such grazing districts as

may be created under the authority of the foregoing

section, and he shall make such rules and regulations

and establish such service, enter into such cooperative

agreements, and do any and all things necessary to

accomplish the purposes of this Act and to insure the

objects of such grazing districts, namely to regulate

their occupancy and use, to preserve the land and its

resources from destruction or unnecessary injury, to

provide for the orderly use, improvement, and devel-

opment of the range; and the Secretary of the Interior

is authorized to continue the study of erosion and flood

control and to perform such work as may be necessary

amply to protect and rehabilitate the areas subject to

the provisions of this Act, through such funds as

may be made available for that purpose, and any will-

ful violation of the provisions of this Act or of such

rules and regulations thereunder after actual notice

thereof shall be punishable by a fine of not more than

#500. (43 U.S.C., see. 315a)

Sec. 3. The Secretary of the Interior is authorized

to issue or cause to be issued permits to graze live-

stock on such erazine districts to such bona fide

settlers, residents, and other stock owners as under

his rules and regulations are entitled to participate

in the use of the range, upon the payment annually

of reasonable fees in each case to he fixed or deter-

mined from time to time, and in fixing the amount of

such fees the Secretary of the Interior shall take into

account the extent to which such districts vield publie

benefits over and above those aceruing to the users

of the forage resources for livestock purposes. Such

fees shall consist of a crazing fee for the use of the

range, and a rangve-imyprovement fee which, when

appropriated by the Congress, shall be available until

expended solely for the construction, purchase, or

maintenance of range improvement. Grazing permits

shall be issued only to citizens of the United States

or to those who have filed the necessary declarations

of intention to become such, as required by the

naturalization laws, and to groups, associations, or

corporations authorized to conduct business under the

laws of the State in which the grazing district is

located. Preference shall be given in the issuance of

grazing permits to those within or near a district who

are landowners engaged in the livestock business,

bona fide occupants or settlers, or owners of water or

water rights, as may be necessary to permit the proper

use of lands, water, or water rights owned, occupied,

or leased by them, except that until July 1, 1935, no

preference shall be given in the issuance of such per-

mits to any such owner, occupant, or settler, whose

rights were acquired between January 1, 1934, and

December 31, 1934, both dates inclusive, except that

no permittee complying with the rules and regulations

laid down by the Secretary of the Interior shal} he

denied the renewal of such a permit, if such denial will

impair the value of the grazing unit of the permittee,

when such unit is pledged as security for any bona

fide loan. Such permits shall be for a period of not

more than ten years, subject to the preference right of

the permittees to renewal in the discretion of the

Secretary of the Interior, who shall specify from

time to time numbers of stock and seasons of use.

During periods of range depletion due to severe

drought or other natural causes, or in ease of a gen-

eral epidemic of disease, during the life of the permit,

the Secretary of the Interior is authorized, in his

discretion to remit, reduce, refund in whole or in part,

or authorize postponement of payment of grazing fees

for such depletion period so long as the emergency

exists: PROVIDED FURTHER, That nothing in this

Act shall be construed or administered in any way

to diminish or impair any right to the posession and

use of water for mining, agriculture, manufacturing,

or other purposes which has heretofore vested or ac-

erued under existing law validly affecting the public

lands or which may be hereafter initiated or acquired

and maintained in accordance with such law. So far

as consistent with the purposes and provisions of this

Act, grazing privileges reeognized and acknowledged

shall be adequately safeguarded, but the creation of

a grazing district or the issuance of a permit pursuant

to the provisions of this Act shall not create any right,

title, interest, or estate in or to the lands. (43 U.S.C.,,

see. 315b)

Sec. 4. Fences, wells, reservoirs, and other im-

provements necessary to the care and management of

the permitted livestock may be constructed on the pub-

lie lands with such grazing districts under permit

issued by the authority of the Secretary, or under

such cooperative arrangement as the Secretary may

approve. Permittees shall be required by the Secre-

tary of the Interior to comply with the provisions of

law of the State within which the grazing district is

located with respect to the cost and maintenance of

partition fences, No permit shall be issued which

shall entitle the permittee to the use of such improve-

ments constructed and owned by a prior occupant

until the applicant has paid to such prior occupant

the reasonable value of such improvements to be de-

termined under rules and regulations of the See-

retary of the Interior. The decision of the Secretary

in such eases is to be final and conclusive. (43 U.S.C.,

see, 315c)

Sec. 5. The Secretary of the Interior shall permit,

under regulations to be prescribedsby him, the free

grazing within such districts of livestock kept for

domestic purposes; and provided that so far as au-

thorized by existing law or laws hereinafter enacted,

nothing herein contained shail prevent the use of

timber, stone, gravel, clay, coal, and other deposits

by miners, prospectors for mineral, bona fide settlers

and residents, for firewood, fencing, buildings, mining,

prospecting, and domestic purposes within areas sub-

ject to the provisions of this Act. (43 U.S.C., see.

315d)

Sec. 6. Nothing herein contained shall restrict the

acquisition, granting, or use of permits or rights-of-

way within grazing districts under existing law; or

ingress or egress over the publie lands in such dis-

tricts for all proper and legal purposes; and nothing

herein contained shall restrict prospecting, locating,

developing, mining, entering, leasing, or patenting the

mineral resources of such districts under law ap-

plicable thereto. (483 U.S.C., see. 315e)

Sec. 7. The Seeretary of the Interior is hereby

authorized in his discretion, to examine and celassify

any lands, withdrawn or reserved by Executive Order

of November 26, 1934 (numbered 6910), and amend-

ments thereto, and Executive Order of February 5,

1935 (numbered 6964), or within a grazing district,

which are more valuable or suitable for the production

of agricultural crops than for the production of native

grasses and forage plants, or more valuable or suitable

for any other use than for the use provided for under

this Act, or proper for acquisition in satisfaction of

any outstanding lieu, exchange, or script rights or land

yrent, and to open such lands to entry, selection, or

location for disposal in aecordance with such classifi-

cation under applicable public-land laws, except that

homestead entries shall not be allowed for tracts

exceeding three hundred and twenty acres in area.

Such lands shall not he subject to disposition, settle-

ment, or oecupation until after the same have been

classified and or ed to entry; PROVIDED, That lo-

cations and entries under the mining laws, including

the Act of February 25, 1920, as amended, may be

made upon such withdrawn and reserved areas with-

out regard to classification and without restrictions or

limitation by any provision of this Act. Where such

lands are located within grazing districts reasonable

notice shall be given by the Secretary of the Interior

to any grazing permittee of such lands, The applicant,

after his entry, selection, or location is allowed, shall

be entitled to the possession and use of such lands:

PROVIDED, That upon the application of any appli-

cant qualified to make entry, selection, or location,

under the public-land laws, filed in the land office of

the proper district, the Secretary of the Interior shall

cause any tract to he classified, and such application,

if allowed by the Secretary of the Interior, shall

entitle the applicant to a preference right to enter,

select, or locate such lands if opened to entry as here-

in provided. (43 U.S.C., sec. 315f)

Sec. 8 (a) Where such action will promote the

purposes of a district or facilitate the administration

of the public lands, the Secretary is authorized to

accept on behalf of the United States any lands

within or without the exterior boundaries of a grazing

district as a gift.

(b) When public interest will be benefited thereby

the Secretary is authorized to accept on behalf of the

United States title to any privately owned lands with-

in or without the boundaries of a grazing district, and

in exchange therefor to issue a patent for not to ex-

ceed an equal value of surveyed grazing district land

or of unreserved surveyed public land in the same

State or within a distance of not more than fifty miles

within the adjoining State nearest the base lands.

(¢) Upon application of any State to exchange

lands within or without the boundaries of a grazing

district the Secretary of the Interior shall, and is

hereby, directed to proceed with such exchange at the

earliest practicable date and to cooperate fully with

the State to that end, but no State shall be permitted

to select lieu lands in another State. The Secretary

of the Interior shall accept on behalf of the United

States title to any State-owned lands within or without

the boundaries of a grazing district, and in exchange

therefor issue patent to surveyed grazing district land

not otherwise reserved or appropriated or unappro-

priated and unreserved surveyed public land; and in

making such exchange the Secretary is authorize’ to

patent to such State, land either of equal value or of

equal acreage: PROVIDED, That no State shall seleet

public lands in a grazing district in furtherance of

any exchange unless the lands offered by the State in

such exchange lie within such grazing district and the

selected lands lie in a reasonably compact body whieh

is so located as not to interfere with the administra-

tion or value of the remaining land in such district

for grazing purposes as set forth in this Act.

When an exchange is based on lands of equal aere-

age and the selected lands are mineral in character,

the patent thereto shall contain a reservation of all

minerals to the United States; and in making ex-

changes of equal acreage the Secretary of the Interior

_ is authorized to accept title to offered lands which are

mineral in character, with a mineral reservation to the

State.

For the purpose of effecting exchanges based on

lands of equal acreage the identification and area

of unsurveyed school sections may be determined by

protraction or otherwise. The selection by the State

of lands in lieu of an such protracted school sections

shall he a waiver of all its right to such sections,

(d) Before any such exchange under this seetion

shall he effected, notice of the contemplated exchange,

describing the lands involved, shall be published by

the Secretary of the Interior once each week for four

sueeessive weeks in seme newspaner of e@eneral cir-

eulation in the county or counties in which may be

situated the lands to be accepted, and in the same man-

ner in some like newspaper published in any county

in which may be situated any lands to be given in

such exchange; lands conveyed to the United States

under this Act shall, upon acceptance of title, become

public lands, and if located within the exterior bound-

aries of a grazing district they shall become a part

of the district within the boundaries of which they

are located: PROVIDED, That either party to an ex-

change based upon equal value under this section may

make reservations of minerals, easements, or rights of

use. Where reservations are made in lands conveyed

either to or by the United States the right to enjoy

them shall be subject to such reasonable conditions

respecting ingress and egress and the use of the sur-

face of the land as may be deemed necessary. Where

mineral reservations are by made the grantor in lands

conveyed by the United States, it shall be so stipulated

in the patent, and any person who prospects for

or acquires the right to mine and remove the reserved

mineral deposits may enter and occupy so much of the

surface as may be required for all purposes incident

to the prospecting for, mining and removal of the

minerals therefrom, and may mine and remove such

minerals, upon payment to the owner of the surface

for damages caused to the land and improvements

thereon. No fee shall be charged for any exchange of

land made under this Act except one-half of the cost

of publishing notice of a proposed exchange as herein

provided. (43 U.S.C., sec. 3tog)

Sec. 9. The Secretary of the Interior shall provide,

by suitable rules and regulations, for cooperation with

local associations of stockmen, State land officials, and

official State agencies engaged in conservation or

propagation of wildlife interested in the use of the

grazing districts. The Secretary of the Interior shall

previde by appropriate rules and regulations for local

hearings on appeals from the decisions of the admin-

istrative officer in charge in a manner similar to the

procedure in the land department. The Secretary of

the Interior shall also be empowered to accept con-

tributions toward the administration, protection, and

improvement of lands within or without the exterior

boundaries of a grazing district, moneys so received

to be covered into the Treasury as a special fund,

which is hereby appropriated and made available until

expended, as the Secretary of the Interior may direct,

for payment of expenses incident to said administra-

tion, protection, and improvement, and for refunds

to depositors of amounts contributed by them in ex-

cess of their share of the cost. (43 U.S.C., see. 315h)

Sec. 10. Except as provided in sections 9 and 11

hereof, all moneys received under the authority of this

Act shall be deposited in the Treasury of the United

States as miscellaneous receipts, but the following pro-

portions of the moneys so received shall he distributed

as follows: (a) 12144 per centum of the moneys col-

lected as grazing fees under section 3 of this Act dur-

ing any fiseal vear shall be paid at the end thereof by

the Secretary of the Treasury to the State in which

the erazine districts producing such moneys are sit-

uated, to he expended as the State legislature of sueh

State may prescribe for the benefit of the county or

counties in which the grazing districts producing such

moneys are situated: PROVIDED. That if any graz-

ing district is in more than one State or county, the

distributive share to each from the proceeds of said

district shall be proportional to its area in said dis-

trict; (b) 25 per centum of all moneys collected under

section 15 of this Act during any fiscal year when ap-

propriated by the Congress, shall be available until ex-

pended solely for the construction, purchase, or main-

tenance of range improvements; and 50 per centum of

all moneys collected under section 15 of this Act dur-

ing any fiscal vear shall be paid at the end thereof by

the Secretary of the Treasury to the State in which

the lands producing such moneys are located, to be

expended as the State legislature of such State may

prescribe for the benefit of the county or counties in

which the lands producing such moneys are located:

PROVIDED, That if any leased tract is in more

than one State or county, the distributive share to

each from the proceeds of said leased tract shall be

proportional to its area in said leased tract. (48

U.S.C., see. 3151)

Sec. 11. That when appropriated by Congress, 331%

per centum of all grazing fees received from each

grazing district on Indian lands ceded to the United

States for disposition under the public-land laws dur-

ing any fiscal year shall be paid at the end thereof by

the Secretary of the Treasury to the State in which

said lands are situated, to be expended as the State

legislature may prescribe for the benefit of publie

schools and public roads of the county or counties in

which such grazing lands are situated. And the re-

maining 6634 per centum of all grazing fees received

from such grazing lands shall be deposited to the

credit of the Indians pending final disposition under

applicable laws, treaties, or agreements. The applica-

ble public-land laws as to said Indian ceded lands

within a district created under this Act shall continue

in operation, except that each and every application

for non-mineral title to said lands in a district created

under this Act shall be allowed only if in the opinion

of the Secretary of the Interior the land is of the

character suited to disposal through the Act under

which application is made and such entry and disposal

will not affect adversely the best public interest, but

no settlement or occupation of such lands shall be

permitted until ninety days after allowance of an ap-

plication. (48 U.S.C., see. 315))

Sec. 12 That the Secretary of the Interior is hereby

authorized to cooperate with any department of the

Government in carrying out the purposes of this Act,

and in the coordination of range administration, par-

ticularly where the same steck graze part time in a

grazing district and part time in a national forest or

other reservation. (43 U.S.C., see. 315k)

Sec. 13. That the President of the United States is

authorized to reserve by proclamation and place under

national forest administration in any State where na-

tional forests may be created or enlarged by Executive

Order any wnappropriated public lands lying within

watersheds forming a part of the national forests

which, in his opinion, can best be administered in

connection with existing national-forest administration

units, and to place under the Interior Department

administration any lands within national forests, prin-

cipally vaiuable for grazing, which, in his opinion can

best be administered under the provision of this Act:

PROVIDED, That such reservations or transfers

shall not interfere with legal rights, acquired under

any public-land laws so long as such rights are legally

maintained. Lands placed under the national-forest

administration under the authority of this Act shall

be subject to all the laws and regulations relating to

national forests, and lands placed under the Interior

Department administration shall be subject to all

public-land laws and vegulations applicable to grazing

districts created under authority of this Act. Nothing

in this section shall be construed so as to limit the

powers of the President (relating to reorganizations

in the Executive departments) granted by title 4 of

the Act entitled “An Act making appropriations for

the Treasury and Post Office Departments for the fis-

eal year ending June 30, 1954, and for other pur-

poses”, approved March 3, 1932. (43 U.S.C., see. 315 1)

Sec. 14. That section 2455 of the Revised Statutes,

as amended, is amended to read as follows:

“SEC. 2455, Notwithstanding the provisions of

section 2357 of the Revised Statutes (U.S.C., title

43, sec. 678) and of the Act of August 30, 1890

(26 Stat. 391), it shall be lawful for the Secretary

of the Interior to order into market and sell at

public auction, at the land office of the district in

which the land is situated for not less than the

appraised value, any isolated or disconnected

tract or parcel of the public domain not exceed-

ing one thousand five hundred and twenty acres

which, in his judgment, it would be proper to

expose for sale after at least thirty days’ notice .

by the land office of the distriet in which such

land may be situated: PROVIDED, That for a

period of not less than thirty days after the high-

est bid has been received, any owner or owners

of contiguous land shall have a preference right

to buy the offered lands at such highest bid price,

and where two or more persons apply to exercise

such preference right the Secretary of the Interior

is authorized to make an equitable division of

the land among such applicants, but in no ease

shall the adjacent land owner or owners be re-

quired to pay more than three times the appraised

price: PROVIDED FURTHER, That any legal

subdivisions of the publie land, not exceeding

seven hundred and sixty acres, the greater part

of which is mountainous or too rough for eultiva-

tion, may, in the discretion of the said Secretary,

be ordered into the market and sold pursuant to

this section upon the application of any person

who owns land or holds a valid entry of lands

adjoining such tract, regardless of the fact that

such tract may not be isolated or disconnected

within the meaning of this section: PROVIDED

FURTHER, That this section shall hot defeat

any valid right which has already attached under

any pending entry or location. The word ‘person’

in this section shall be deemed to include corpora-

tions, partnerships, and associations.” (43 U.S.C.,

see. 1171)

Sec. 15. The Secretary of the Interior is further

authorized, in his discretion, where vacant, unappro-

priated, and unreserved lands of the public domain

are so situated as not to justify their inelusion in any

grazing district to be established pursuant to this Act,

to lease any such lands for grazing purposes, upon

such terms and conditions as the Secretary may pre-

scribe: PROVIDED, That preference shall be given

to owners, homesteaders, lessees, or other lawful

occupants of contiguous lands to the extent necessary

to permit proper use of such contiguous lands, except

that when such isolated or disconnected tracts embrace

seven hundred and sixty acres or less, the owners,

homesteaders, lessees, or other lawful occupants of

lands contiguous thereto or cornering thereon shall

have a preference right to lease the whole of such

tract, during a period of ninety days after such tract

is offered for lease, upon the terms and conditions pre-

scribed by the Secretary: PROVIDED FURTHER,

That when public lands are restored from a with-

drawal, the Secretary may grant an appropriate pref-

erence right for a grazing lease, license, or permit to

users of the land fer grazing purposes under authority

of the agency which had jurisdiction over the lands im-

mediately prior to the time of their restoration.

(43 U.S.C., sec. 315m)

Sec. 16. Nothing in this Act shall be construed as

restricting the respective States from enforcing any

and all statutes enacted for police regulation, nor shall

the police power of the respective States be, by this

Act, impaired or restricted, and all laws heretofore

enacted by the respective States or any thereof, or

that may hereafter be enacted as regards public health

or public welfare, shall at all times be in full force and

effect: PROVIDED, HOWEVER, That nothing in

this section shall be construed as limiting or restrict-

ing the power and authority of the United States, (43

U.S.C., see. 315n)

Sec. 17. Superseded by 1946 Reorganization Plan

No. 3, see, 403, effective July 16, 1946 (11 F.R. 7876,

60 Stat. 1100). (43 U.S.C., see. 3150)

Sec. 18. (a) In order that the Secretary of the

Interior may have the benefit of the fullest informa-

tion and advice concerning physical, economic, and

other local conditions in the several grazing districts,

there shall be an advisory board of local stockmen in

each such district, the members of which shall be

known as grazing district advisers. Each such board

shall consist of not less than five nor more than twelve

members, exclusive of wildlife representatives, one

such representative to be appointed by the Secretary,

in his discretion, to membership on each such board.

Except for such wildlife representatives, the name of

the members of each district advisory board shall be

recommended to the Secretary by the users of the

‘ange in that district through an election conducted

under rules and regulations prescribed by the Secre-

tary. No grazing district adviser so recommended,

however, shall assume office until he has been ap-

pointed by the Secretary and has taken an oath of

office, The Secretary may, after due notice, remove

any grazing district adviser from office if in his opin-

ion such removal would be for the good of the service.

(b) Each district advisory board shall meet at

least once annually at a time to be fixed by the Secre-

tary of the Interior, or by such other officer to whom

the Secretary may delegate the function of issuing

grazing permits, and at such other times as its mem-

bers may be called by such officer. Each board shall

offer advice and make recommendation on each appli-

cation for such a grazing permit within its district:

PROVIDED, That in no ease shall any grazing dis-

trict adviser participate in any advice or recommenda-

tion concerning a permit, or an application therefor,

in which he is directly or indirectly interested, Each

hoard shall further offer advice or make recommenda-

tions concerning rules and regulations for the admin-

istration of this Act, the establishment of grazing

districts and the modification of the boundaries there-

of, the seasons of use and carrying capacity of the

range, and any other matters affecting the administra-

tion of this Act within the district. Except in a case

where in the judgment of the Secretary an emergency

shall exist, the Secretary shall request the advice of

the advisory board in advance of the promulgation of

any rules and regulations affecting the district. (45

ULS.C., see, 3150-1)

AN ACT

To authorize the Secretary of the Interior to

issue patents to States under the provisions

of section 8 of the Act of June 28, 1934 (48

Stat. 1269), as amended by the Act of June

26, 1936 (49 Stat, 1976), subject to prior

leases issued under section 15 of the said Aet.

Be Ir Exactep By THe SENATE AND HOUSE OF

REPRESENTATIVES Or THe UNITED STATES OF AMERICA

In ConGress AssemBLep, That the Secretary of the

Interior in adjudicating State exchanges, under sec-

tion 8 of the Act of June 28, 1934 (48 Stat. 1269), as

amended by the Act of June 26, 1956 (49 Stat. 1976),

involving lands embraced in outstanding leases under

section 15 of said Act issued prior to the filing of the

State exchange application, is hereby authorized upon

the request of any State to issue patent to the State,

subject to such outstanding lease: PROVIDED, That

the United States shall not by reason of the issuance of

any such patents be required to account to the State

for any money due and collected prior thereto as rent

for any part of the then-current annual rental period

except as is now provided by law. (43 U.S.C, see.

S15p).

Approved, August 24, 1937 (50 Stat. 748).

AN ACT

(THE PIERCE ACT)

To provide for the leasing of State, county,

and privately owned lands for the purpose of

furthering the orderly use, improvement and

development of grazing districts,

Be Iv Enactep By THe SENATE AND House oF

REPRESENTATIVES Or THE UNIrep States oF AMERICA

Ix Concress AsseMBLED, That the Secretary of the

Interior in his discretion is authorized to lease at rates

to be determined by him any State, county, or pri-

vately owned lands chiefly valuable for grazing pur-

poses and lying within the exterior boundaries of a

grazing district when, in his judgment, the leasing

of such lands will promote the orderly use of the

district and aid in conserving the forage resources of

the publie lands therein: PROVIDED, That no such

leases shall run for a peried of more than ten years and

in no event shall the grazing fees paid the United

States for the grazing privileges on any of the lands

leased rental paid by the United States for any of such

under the provisions of this section be less than the

lands: PROVIDED FURTHER, That nothing in this

section shall be construed as authorizing the appro-

priation of any moneys except that moneys heretofore

or hereafter appropriated for construction, purchase,

and maintenance of range improvements within graz-

ing districts, pursuant to the provisions of sections LO

and 11 of the Act of June 28, 1954 (48 Stat, 1209), as

amended June 26, 1936 (49 Stat. 1976), may be made

additionally available by Congress for the leasing of

land under this Act.

Sec. 2. That the lands leased under this Act shall

be administered under the provisions of the Act of

June 28, 1934 (48 Stat. 1269), as amended June 26,

1936 (49 Stat. 1976), commonly known as the Taylor

Grazing Act.

Sec. 3. That contributions received by the Secretary

of the Interior under section 9 of the Act of June 28,

1934 (48 Stat. 1269), as amended June 26, 1936 (49

Stat. 1976), toward the administration, protection, and

improvement of any district shall be additionally

available for the leasing of lands under this Act.

Sec. 4. All moneys received by the Secretary of the

Interior in the administration of leased lands as pro-

vided in section 2 of this Act shall be deposited in the

Treasury of the United States as miscellaneous re-

ceipts, but are hereby made available, when appropri-

ated by the Congress, for the leasing of lands under

this Act and shall not be distributed as provided under

sections 10 and 11 of the Act of June 28, 1934 (48

Stat. 1269), as amended June 26, 1936 (49 Stat. 1976).

(43 U.S.C. see. 315m-1).

Approved, June 23, 1938 (52 Stat. 1033).

AN ACT

Relating to the administration of grazing

districts.

Be Ir Enactrep By THe SENATE AND House OF

REPRESENTATIVES Or THE UNITED STares OF AMERICA

In ConGress ASSEMBLED, That the Secretary of Inte-

rior may require field employees of the Bureau of

Land Management to furnish horses and miscellaneous

equipment necessary for the performance of their

official work and may provide at Government expense

forage, care, and housing for such animals and equip-

ment. (43 U.S.C., see. 3150-2), Approved, December

18, 1942 (56 Stat. 1067); 1946 Reorganization Plan

No, 3, sec. 403, effective July 16, 1946 (11 F.R. 7876,

60 Stat. 1100).

AN ACT

chulhorizing the head of the department or

agcney using the public domain for national

defense purposes to componsate holders of

grazing permits and licenses for losses sus-

tained by reason of such use of public lands

for national defense purposes.

Be lr Exacten By Tor Sexate anp Howser or

Representatives Or THe UNirep States OF AMERICA

Ix CONGRESS AssemMBLED, That whenever use for war

or national defense purposes of the public demain or

other property owned by or under the control of the

United States prevents its use for grazing, persons

holding grazing permits or licenses and persons whos?

erazing permits or licenses have been or will be ean-

celled because of such use shall be paid out of the

funds appropriated or allocated for such project such

amounts as the head of the department or agency so

using the lands shall determine to be fair and reason-

able for the losses suffered by such persons as a re-

sult of the use of such lands for war or national

defense purposes, Such payments shall be deemed pay-

ment in full for such losses. Nothing herein contained

shall be construed to create any liability not now exist-

ing against the United States. (43 U.S.C., see. 315q).

Approved July 9, 1942 (56 Stat. 654) as amended

May 28, 1948 (62 Stat. 277).

43 ULS.C., see, 315r—In administering the provisions

of sec. 315q (above), payments of rentals may be made

in advance, October 29, 1949, Title IT], see. 301 (63

Stat. 996).

Appendix C

THE FEDERAL RANGE CODE FOR GRAZING DISTRICTS

(43 C.F.R. Parts 4110, et seq.)

SUBCHAPTER D—RANGE MANAGFMENT (4000)

Group 4100—Grazing Administration

Part 4110—Grazing Administration (Inside Grazing Districts)

(The Federal Range Code for Grazing Districts)

Subpart 4110—Grazing Administration (Inside G:azing Districts) ;

See.

4110.0-2

4110.0-3

4110.0-5

4111.5

4111.5-1

4111.5-2

41114

4111.4-2

4111.4-3

4112.2

4112.3

4112.5-1

4112.3-2

4115.1

General

Objectives.

Authority.

Definitions.

Subpart 4111—Awards of Grazing Privileges

Qualifications of applicants.

Qualifications.

Kffect of transfer arising through operation of law.

Base property qualifications and classification.

Minimum requirements; classification of base preper-

ties.

Adjudication and apportionment of grazing privileges.

Mandatory requirements; rating and classification of

Federal Range.

Procedures.

Adjustments of grazing privileges.

Increases.

Reductions.

Subpart 4112—Management Practices

Designation of ranges for particular kinds of livestock.

General rules of the range.

Acts prohibited.

Rules of fair range practice.

Subpart 4113—Supervision and Inspection

Procedure for enforcement of rules and regulations.

See Subpart 4114—Local Associations of Stockmen

4114.1 (irazing district advisory boards.

4114.1-1 Authorization for establishment; number of members;

qualifications.

1-2 Election, time and place, the general procedures.

1-3 Appeintment; term of office; removal; vacancies.

4114.1-4 Meetings; organization.

1-5 Funetions and duties of distriet advisers; limitations.

4114.2 State advisory boards.

4114.2-1 Membership and meetings.

4114.2-2) Functions and duties.

4114.5 National Advisory Board Council.

4114.4 Local associations of stockmen.

4114.4-1 Organization.

4114.42 Articles of incorporation; constitutions; by-laws.

4114.4-3 Powers.

4114.4-4 Cooperative agreements for use of lands; obligation of

licensees and permittees to share cost.

Subpart 4115—Records and Administrative Procedures

4115.2 Procedures.

4115.2-1 License and permit procedures; requirements and con-

ditions.

4115.2-2. Transfers and relinquishments.

4115.2-3 Appeals and hearings.

4115.2-4 Special rules for grazing districts.

52-5 Range improvements and contributions.

4$115.2-6 Pledge of licenses and permits as security loans.

Avriortry: The provisions of this Part 4110 issued under

see. 2, 48 Stat. 1270; 43 U.S.C. 315a.

Source: The provisions of this Subpart 4110 appear at 35

F.R. 9761, June 13, 1970, unless otherwise noted,

Subpart 4110—Grazing Administration

(Inside Grazing Districts) ; General

§ 4110.0-2 Objectives.

Grazing districts will be administered to conserve

and regulate the public grazing lands, to stabilize the

livestock industry dependent upon them, and in aid

thereof to promote the proper use of the privately

controlled lands and waters dependent upon those pub-

lic grazing lands. In furtherance of these objectives,

grazing privileges will be granted with a view to the

protection of those livestock operations that are recog-

nized as established and continuing and which nor-

mally involve the substantial use of the public range

ina regular, continuing manner each year. To promote

the highest use of the public lands within grazing

districts which have been or hereafter are established,

possession or control of sufficient land or water to

insure a year-round operation for a certain number

of livestock in connection with the use of Federal

‘ange will be required of all users,

§ 4110.0-3 Authority.

(a) Saving clause. So far as practicable and con-

sistent with the purposes and provisions of the act

and the basic policy and plan of administration out-

lined in § 4110.0-2, the provisions of this Subpart 4110

will not be applied to the prejudice of the position of

anyone who on the date of approval of this part was

the holder of a grazing license or permit or who on

that date had pending an application therefor.

* * * * «#

Subpart 4112—Management Practices

Source: The provisions of this Subpart 4112 ap-

pear at 35 F.R. 9764, June 13, 1970, unless otherwise

noted.

§ 4112.2 Designation of ranges for particular kinds of livestock.

The District Manager may designate certain areas

for use exclusively by a certain kind or class of live-

stock when necessary for the proper use or orderly

administration of the Federal range.

§ 4112.3 General rules of the range.

§ 4112.3-1 Acts prohibited.

The following acts are prohibited on the Federal

range:

(a) Grazing livestock upon, allowing livestock to

drift and graze on, or driving livestock across the

Federal range, including stock driveways, without an

appropriate license or permit, regular or free-use, or

a crossing permit,

(hb) Grazing livestock upon or driving livestock

across the Federal range, including stock driveway,

in violation of the terms of a license or a permit,

either by exceeding the number of livestock permitted,

or by allowing livestock to be on the Federal range

in an area or at a time different from that designated,

or in any other manner,

(¢) Constructing or maintaining any kind of im-

provements, structures, fences, or enclosures on the

Federal range, including stock driveways, without

authority of law or a permit.

(d) Destroying, molesting, disturbing, or injuring

property used or acquired for use by the United States

in the administration of Federal range, meluding

stock driveways, or improvements constructed or

maintained under section 4 of the act.

(e) Cutting, burning, or removing vegetative cover,

brush, woodland growth, or timber for any purpose,

except as authorized by law. Permits to carry on

controlled burning of vegetative cover or brush may

be issued by the District Manager in proper cases,

subject to such conditions as he may impose, and to

all State laws and regulations concerning such

burning,

(f) Molesting or driving from the Federal range

without authority livestock lawfully grazing thereon

under license or permit.

(g) Interference with licensed hunters or fishermen

to enter, and hunt and fish on the Federal range

covered by such license or permit; or with the en-

trance of miners, prospectors and mineral lessees

of the United States to prospect, locate, develop, mine

or patent the mineral resources on such Federal range ;

or with other persons entitled to enter such range

for lawful purposes.

§ 4112.3-2 Rules of fair range practice.

All licensees and permittees shall comply with the

following rules of fair range practice:

(a) (1) State laws and regulations relating to san-

itary and branding requirements for livestock shall be

followed by graziers using the Federal range.

(2) However, the following minimum branding re-

quirements are mandatory for livestock authorized to

graze the Federal range: (1) All cattle, horses, and

burros over 6 months of age must carry a brand which

has been filed with the District Manager, and (ii) All

sheep and goats over 6 months of age must be identi-

fied with earmarks, paint brands, or other markings

filed with the District Manager. The District Manager

may, for good cause, exempt certain livestock (such

as show animals) from the minimum branding. re-

quirements. An alternative method of identifying the

animals shall be used in such lastances.,

(3) To the extent that State laws and regulations

are lacking or less stringent than the regulations in

this paragraph, the regulations in this paragraph are

minimum and controlling on the Federal range.

(4) The District Manager shail retain the discre-

tionary authority to require eartagging and other

marking of livestock in order to abate trespass and

promote the orderly administration of the range.

(b) A crossing permittee shall follow the route pre-

scribed in the crossing permit at an average rate of

not less than five miles per day for sheep or goats

and ten miles per day for cattle or horses, but an

increased or decreased rate of travel may be prescribed

in the discretion of the District Manager.

(¢) All licensees and permittees shall provide ade-

quate salt on the range for their licensed or permitted

livestock, and shall bed sheep and goats according to

instructions issued by the District Manager. Upon re-

quest by the majority of the users of any community

allotment of Federal range, the District Manager may

prescribe the time for, breed, grade, and number of

bulls to be turned into such allotment; in the absence

of such express requirements the provisions of State

law on the subject shall be applicable.

(d) When so requested by the State Director or

District Manager, the licensee or permittee shall join

with the Bureau of Land Management in preparing

a fire plan which shall set forth in detail the program

for prevention, control, and extinguishment of fires,

including the responsibility of the licensee or permit-

tee for action on his range allotment and on adjacent

Federal range.

[35 FR 9764, June 13, 1970, as amended at 39 FR

S4415, Sept. 25, 1974]

Subpart 4113—Supervision and Inspection

Source: The provisions of this Subpart 4113 ap-

pear at 35 F.R. 9765, June 13, 1970 unless otherwise

noted,

§ 4113.1 Procedure for enforcement of rules and regulations.

A grazing license or permit may be suspended, re-

duced, or revoked, or renewal thereof denied for a

clearly established violation of the terms or conditions

of the license or permit, or for a violation of the act

or of any of the provisions of this part, or of any

approved special rule, (Refer to § 9239.3-2 of this

chapter for detailed enforcement procedures. )

Subpart 4114—Local Associations of Stockmen

Source: The provisions of this Subpart 4114 appear

at 35 F.R. 9765, June 13, 1970, unless otherwise noted.

§ 4114.1 Grazing district advisory boards.

§ 4114.1-1 Authorization for establishment ; number of members;

qualifications.

The State Director shall fix the number of members

to be recommended by election for appointment to the

advisory board in each district, such mumber to be

not less than five nor more than twelve, exclusive of

a wildlife representative who will not be recommended

by election, but shall be selected directly by the State

Director, The State Director may fix the number of

district advisers to be recommended by election as

representatives of each class of stockman, according

to the kind of livestock owned, or may fix the number

to be recommended by election from each voting pre-

cinct, or both, provided that the free-use licensees in

each district shall be entitled to recommend one repre-

sentative who shall be a free-use licensee. All district

advisers, except the wildlife representative, shall be

electors qualified to vote in the particular election.

If a district is divided into precincts, an adviser repre-

senting a precinct shall qualify in the precinct in the

same manner as in the district

§ 4114.1-2 Election, time and place; the general procedures.

All district advisers, except wildlife representa-

tives, shall be recommended by election in the manner

provided in this section, and in the General Proce-

dures for Grazing District Advisory Board Elections

as approved by the Director, Bureau of Land Man-

agement, and published in the FreperaL Reeisrer. An

election to recommend district advisers for appoint-

ments for each grazing district will be held within

90 days after the publication in the FreprraL REGISTER

of the order establishing the grazing district. Persons

recommended by clection for appointment at the first

election aftery establishment of a grazing district, or at

the first election during the 1964 calendar year, may

be recommended for appointment and annual re-

appointment for a maximum period of three consecu-

tive years; or the District Manager may divide the

group, by lot, as evenly as possible into three groups

to be considered as being recommended for appoint-

ment or reappointment for one year, two consecutive

years, or three consecutive years respectively. There-

after, elections will be held annually, for each group

whose term of recommendation for appointment has

expired, in accordance with the options set forth in

the General Procedures for Grazing District Advi-

sory Board Elections.

§ 4114.1-3 Appointment; term of office ; removal; vacancies.

A person recommended by election for appointment

as district adviser shall assume office only after he has

been appointed by the State Director and has taken

the oath of office. The State Director may, in his dis-

cretion, appoint those in group 1 for a period not to

exceed 365 days; those in group 2 for an initial period

of 365 days and thereafter a subsequent like period:

and those in group three for an initial period of 365

days and thereafter two successive like periods. The

State Director may remove any district adviser from

office because of failure to discharge his duties, loss

of any of his qualifications to hold the office, or in

the public interest. Upon a vacancy occurring in the

office of the district adviser other than a wildlife rep-

resentative by reason of resignation, removal, dis-

qualification, or otherwise, the hoard shall recommend

the name of a person to fill the vaeaney and such ree-

ommendation, together with that of the District Man-

ager, shall be transmitted to the State Director for

consideration. A person selected to fill a vacanev shall

he appointed for the remainder of the unexpired 265-

day period, after which a person shall be reecom-

mended by election for the balance of the period of

recommendation at the next regular election. The

wildlife representative will be appointed by the State

Director for a term of office that does not exceed

365 days.

§ 4114.1-4 Meetings; organization.

District advisory boards shall meet at any time and

place within or near the district designated by the

State Director or his authorized representative. At

the first meeting of the board after an election, it

shall organize by electing one of its members as chair-

man and such other officers from its membership as

it may deem necessary. Meetings of a district advi-

sory board shall be open to the public except that,

with the approval of the Bureau representative pres-

ent, it may meet in executive session to consider ap-

plications for the granting of licenses or permits or

any other business.

§ 4114.1-5 Functions and duties of district advisors; limitations.

District advisers shall advise or make recommenda-

tions on the following matters:

(a) The qualifications, classification, and require-

ments of base property.

(b) The transfer and relinquishment of base prop-

erty qualifications.

the district.

(d) Application for all types of grazing licenses

or permits, including nonuse, or extension of use:

Provided, That in no ease shall any district adviser

participate in any advice or recommendation concern-

ing a permit, or an application therefor, in which he

is directly or indirectly interested.

(e) Cancellation of grazing licenses or permits

when related to: failure to use base property, loss of

all or part of lands used in year-round operation,

range depletion, failure to offer base property or to

validate a license or permit or failure to use grazing

privileges.

(f) Agreements as to the extent of individual graz-

ing privileges, when such agreements have been re-

duced to writing and found to be equitable and in

substantial compliance with the provisions of this

part.

(g) Variance in range improvement fees in aecord-

ance with the character and requirements of the dis-

trict or portions thereof.

(h) Requirements for unit or allotment boundary

fences and apportionment of costs between the bene-

fiting licensees or permittees.

(1) Proper rules of fair range practice.

(j) Allotments of range by classes of livestock or

for community or individual use.

(k) Seasonal use of the Federal range or an¥ part

thereof.

(1) Cooperative agreements or application for the

construction or maintenance of improvements on the

Federal range under section 4 of the act and assien-

ments thereof.

(m) Work plans under the range improvement,

weed control or soil and moisture conservation pro-

grams.

(n) Any recommendations made by local associa-

tions of stockmen in the district.

(o) Reservations of grazing capacity of Federal

range for wild game animals, including any agree-

ments In connection therewith proposed for execution

with State or Federal wildlife agencies.

(p) Special rules for the district, within meaning

of § 4115.2-4.

(q) Any other matter which they may desire to

bring to the attention of the Director, or on which

their advice may be requested.

§ 4114.2 State advisory boards.

§ 4114.2-1 Membership and meetings.

The livestock members of each grazing district

advisory bdéard shall select from their number at the

first meeting of the board after each election, two

members and two alternates to serve on a State advi-

sory board for the State in which the district is

located: where the district advisory board has repre-

sentation for cattle and horses, and sheep and goats,

then only one representative and one alternate rep-

resenting each elass shall be selected. The wildlife

members of the advisory boards within each State

will select one of their number and one alternate to

serve as a wildlife member on the State advisory

board. In addition, the State advisory board will have

one or more additional members, but not exceeding

seven, who will represent other interests such as for-

estry, minerals, soi] conservation, outdoor recreation,

urban and suburban development, county government,

and State government. Such additional members and

their alternates will be selected by the State Director

from nominations made by State or local government

officers or organizations reflecting nonlivestoek inter-

ests in the management or disposition of public lands.

The time and place for meetings of the State advi-

sory board shall be set by the State Director. The

board shall select from its members one member to

be chairman of the board. The co-chairman of the

board shall be the State Director.

§ 4114.2-2 Functions and duties.

The State advisory boards shall consider and make

recommendations on grazing, wildlife, forestry, out-

door recreation, minerals, soil conservation, urban

and suburban development, and other resource admin-

istration policies or problems affecting the State as

a whole. The operations of the State boards, including

their meetings shall conform to the committee man-

agement requirements of the Secretary of the Inte-

rior as set forth in the Departmental Manual.

§ 41143 Nationa] Advisory Board Council.

[38 FR 34664, Dee. 17, 1973]

§ 4114.4 Local associations of stockmen.

§ 4114.41 Organization.

Qualified applicants for grazing licenses or permits

in any grazing district may organize a local associa-

tion, or several associations, according to classes of

livestock, or by community of interest or otherwise.

§ 4114.42 Articles of incorporation ; constitutions ; by-laws.

Such associations shall be organized as corpora-

tions “not-for-profit”, if permissible under the laws

of the State in which the grazing district, or the

greater part thereof, is situated; or they may be or-

ganized as cooperative unincorporated associations.

In either case the articles of incorperation, the char-

ters, or the constitutions of such associations shall

be submitted to the State Director for approval be-

fore the association may be recognized by the

Bureau. The by-laws of such associations need not be

submitted but in any instance which they are in con-

flict with the provisions of this part or the terms of

any license, permit, or cooperative agreement issued

to or made with an association, the latter shall

prevail.

§ 4114.43 Powers.

Such local associations shall be authorized to exercise

one or more of the following powers, to be specifically

set forth in the articles of incorporation, charter, or

constitution, as the case may be, of such association:

(a) To make contributions in cash, property, ma-

terial or labor toward the administration, protection,

and improvement of the Federal range lying within

the district.

(b) To construct and maintain fences, wells, reser-

voirs, and other improvements necessary to the care

and management of the livestock grazed in the district

under permit issued by the Bureau.

(d) To recommend the amount, manner of appor-

tionment, time, and method of collection of assess-

ments for strictly association purposes, as well as for

the public purposes, contemplated by the act.

(e) To enter into cooperative agreement for any of

the foregoing purposes or for any other purposes au-

thorized by the act. In addition, the association’s

powers may include, among others, the power to lease

or otherwise acquire the control of State, county, pri-

vately owned, tax defauit, or other lands within or

near a district.

[35 FR 9765, June 13, 1970, as amended at 40 FR

25454, June 16, 1975]

§ 4114.4-4 Cooperative agreements for use of lands; obligations

of licensees and permittees to share cost.

Whenever the grazing capacity on Federal range is

increased whether by reason of the acquisition of con-

trol of any lands by the Bureau or otherwise, through

a cooperative agreement with a local association, any

licensee or permittee benefiting thereby, whether a

member of the association or not, shall pay to the

association his proportionate share of the cost of the

association lands and of the cost of installation, de-

velopment, and maintenance of range improvements,

including reseeding, plus any authorized association

assessments for other expenses. Such share shall be

determined by the District Manager after considera-

tion of the recommendation of the association. The

District Manager may refuse to issue a license or per-

mit to any applicant or may cancel or refuse to re-

new the license or permit of any licensee or permittee

to graze on any lands covered by such agreement,

whether publie or association lands, and whether or

not such applicant, licensee, or permittee is a member

of the association, if he fails or refuses to pay to the

association any of the foregoing charges.

* * & & &

Appendix D

United States District Court

for the District of Columbia

Civil Action No. 1983-73

Natural Resources Defense Council, Inc., :

et al.,

Plaintiffs,

vs.

Rogers C. B. Morton, et al.,

Defendants. /

[ Filed Dee. 30, 1974]

MEMORANDUM OPINION

This matter is before the court on cross-motions for

summary judgment by plaintiffs, federal defendants

and defendants-intervenors. It presents important is-

sues concerning the applicability of the National En-

vironmental Policy Act (NEPA), 42 U.S.C. §§ 4321

et seq. (1970), to the livestock grazing permit pro-

gram of the Bureau of Land Management, United

States Department of Interior. Five of the six plain-

tiffs are environmental organizations whose general

objectives are to enhance and protect the environment

and to insure proper resource management; the re-

maining plaintiff is an individual who has specialized

in studying bighorn sheep and whose scientifie, con-

servation and esthetic interests are allegedly injured.

Defendants-intervenors are non-profit organizations

concerned primarily with range management. Plain-

tiffs satisfy the standards for standing set ferth in

Sierra Club v. Morton, 405 U.S. 727 (1972), and ju-

risdiction is conferred by 42 U.S.C. §§ 4321 ef seq.

(1970).

The Bureau of Land Management Permit Program

The Bureau of Land Management (BLM) is

charged with managing and protecting over 171 mil-

lion acres of public or national resource lands located

in 11 western states.' These lands not only contain

raluable environmental and recreational resources.

but also provide grazing for an estimated 14 percent

of all livestock in the United States during some parts

of their lives. Livestock operators hold approximately

24.000 BLM licenses, permits, and leases to graze

their stock on 150 million of the 171 million acres

administered by the Bureau. The issuance and regu-

lation of these licenses constitutes one of the main

activities of the BILLM. It also carries on activities

such as vegetation contro! and the construction of

fences and watering facilities designed to improve

erazing and protect the land, and works closely with

other federal agencies in such areas as watershed

maintenance and soil conservation.

The Bureau’s management of the publie lands is

carried out at three levels or stages of intensity.

1Responsibility for these lands is entrusted to the Secretary of

the Interior pursuant to the Taylor Grazing Act, 43 U.S.C. §§ 315

et seq. (1970).

About 7 million acres are, and will continue to be,

managed in a merely custodial fashion due primarily

to their scattered and isolated locations. Approxi-

mately 108 million acres are administered in a fash-

ion the BLM describes as “the best management at-

tainable within the limits of manpower and funding.”

It is, however, the goal of the BLM to bring 133 of

the 171 million acres of public lands under the third

category of management—intensive management—by

the year 2000. Currently, however, only 25 million

acres (18 percent) are under intensive management.

The 52 BLM grazing districts are the agency’s basic

management component. The procedures which these

districts follow for administering an area under in-

tensive management are rather involved. Each dis-

trict is divided into planning units and a unit resource

analysis (URA) containing a detailed inventory of

resourees is prepared for each one. After public com-

ment, a land’ use plan called a management frame-

work plan (MFP) containing a set of “goals, objec-

tives, and constraints” is prepared for each planning

unit. Onee the MFP is completed, more specialized

plans known as program activity plans are prepared

for each type of resouree-related activity, such as tim-

hering, recreation, and grazing, in the unit. An activ-

itv plan is designed to lay out in detail how the

particular activity will comport with the objectives

and constraints of the management plan for that nar-

ticular unit. The program activity plan for crazing

is called an allotment management plan (AMP). A

nlannine unit may contain a number of grazing allot-

ments. It is estimated that the program, continued

under present trends, will result in the implementa-

tion of 8,230 AMP’s (total projected need) by the

vear 2000.2 Approximately 1,015 AMP’s were imple-

mented prior to July 1973 and another 200 were

pending at that time. Before any AMP or other activ-

ity plan is implemented it is first determined whether

an environmental impact statement is required for

the plan. It is against the background that the court

must examine the BLM’s compliance with NEPA.

The National Environmental Policy Act

Section 102(2)(C) of the National Environmental

Poliey Act, 42 U.S.C. § 4832 (1970), requires that a

detailed environmental impact statement (IIS) be

prepared for every major federal action significantly

affecting the quality of the human environment. This

rather general legislative language has been explained

and interpreted in guidelines published by the Coun-

cil on Environmental Quality (CEQ), the agency es-

tablished by NEPA to serve as a research, resource,

and advisory body to the President. See Preparation

of Environmental Tmpact Statements: Guidelines, 40

C.F.R. §8 1500 et seq. (1974). The CEQ Guidelines

provide that the environmental assessment should be

made as early as possible, and in all cases prior to

agency decision concerning recommendations or favor-

able reports on proposals for major federal actions

sienificantly affecting the environment. 40 C.F.R.

§ 1500.2(a) (1974). These Guidelines apply both to

new and continuing projects. Td. § 1500.5(2),.

2RLM. Draft Environmental Impact Statement, Livestock Graz-

ing Management on National Resource Lands I-2 (April 1974).

The BLM has prepared a draft programmatic EIS

for its entire livestock grazing program. See Bureau

of Land Management, Draft Environmental Impact

Statement, Livestock Grazing Management on Na-

tional Resources Land (March 1974). The BLM con-

tends that this statement will provide an overview of

the cumulative impact of the grazing program and

will serve as the foundation for subsequent environ-

mental analyses and for supplemental impact state-

ments which may be prepared for smaller land areas

or on an individual basis for specifie grazing man-

agement actions. The BLM does not indicate, how-

ever, under what circumstances it will be necessary

to prepare supplemental statements.*

Plaintiffs contend that the BLM has failed to com-

ply with the provisjons of sub-paragraph (C) of see-

tion 102(2) of NEPA in that they have issued and

renewed grazing permits in cach vear from 1970 to

the present, and propose to continue doing so, with-

out preparing an EIS dealing with the actual environ-

mental impact of such actions. Plaintiffs areue that

the overall programmatic EIS for grazing does not

suffice sinee it fails to consider the individualized,

“on the ground” effects on local environments. They

ask that the court declare the actions of the BLM

3One such action might be the implementation of an allotment

management plan.

4CEQ Guidelines provide that in a situation in which a pro-

erammatie statement is appropriate subsequent statements on

major individual actions will be neeessarv only where such ae-

tions have significant environmental impacts not adequately

evaluated in the programmatic statement. 40 C.F.R. § 1500.6

(d)(1) (1974).

to be violations of NEPA and seek an order estab-

lishing a cut-off date for the preparation of appro-

priate EIS statements. It should be noted that plain-

tiffs do not seek to enjoin the present issuance of

licenses nor do they ask that impact statements be

prepared for every license or permit. They ask rather

that detailed individual statements be prepared on an

appropriate district or geographic level to assess the

actual impact of the issuance of federal grazing per-

mits on local environments.

The Taylor Grazing Act

The responses of the federal defendants and the

defendants-intervenors differ significantly. Defend-

ants-intervenors argue that NEPA does not require

impact statements with regard to the licensing of

publie lands for grazing since the Taylor Grazing

Act, 43 U.S.C. §§ 315 et seq. (1970), which established

the licensing program is an operative and effective

method of protecting the environment of the public

lands and to superimpose NEPA on the Taylor Act

would substantially interfere with the enforcement

of the latter. Defendants-intervenors further argue

that the BILM rules, regulations, and administrative

procedures protect the environment and should ap-

parently be considered the functional equivalent of

an impact statement. As support for this argument

they cite Portland Cement Association v. Ruckels-

haus, 486 F.2d 375 (D.C. Cir. 1973), in which the

Court of Appeals for the District of Columbia par-

tially exempted the Environmental Protection Agency

(EPA) from the NEPA requirements. In doing so,

however, the court took pains to point out that a

very narrow exemption was being established for

EPA determinations under section 111 of the Clean

Air Act, 42 U.S.C. § L857e-6 (1970), as amended

(Supp. Ll, 1972). 7d. at 387. This exemption clearly

does not extend to the Taylor Grazing Act. An

analogy of the Taylor Act to NEPA is invalid since

the Tavlor Act is not purely an environmental act,

hut was designed both to stop injury to the public

domain by unregulated grazing and to promote sta-

hilization of the livestock industry. See LaRue v,

Udall, 324 F.2d 428, 480 (D.C. Cir. 1963), cert. denied,

376 U.S. 907 (1967); United States v. Hatahley, 220

F.2d 666, 671 (10th Cir. 1955); modified, 351 U.S. 173

(1956). To call the Taylor Grazing Act purely en-

vironmental is to ignore its language and its history.

NEPA and the Grazing Program

Defendants-intervenors also contend that NEPA

does not apply to the BLM licensing program since

the program will not significantly affect the quality

of the human environment and does not constitute

major federal action. However, the statutory phrase

“actions significantly affecting the quality of the en-

vironment” is intentionally broad, “reflecting the

Act’s attempt to promote an across-the-board adjust-

ment in federal agency decision making so as to make

the quality of the environment a concern of every

federal agency.” Scrtentists’ Tnstitute for Publie Tn-

formation, Ine. v. ABC, 481 F.2d 1079, 1088 (D.C.

Cir. 1973). The term “actions” refers not only to ae-

tions taken by a federal agency but also to decisions

made by the agencies, such as the decision to grant

a license, which allow another party to take an action

affecting the environment. Jd. at 1088-89; see 40

C.F.R. § 1500.5(a)(2) (1974). Whether the granting

of a single license requires the filing of an impact

statement depends not upon the size of the geograph-

ical area affected, but on the nature and severity of

the impact. Cf. Save Our Ten Acres v. Kreger, 472

F.2d 463 (5th Cir. 1973) (construction of federal

office building); Hanly v. Kleindienst, 471 F.2d 823

(2d Cir. 1972), cert. denied 412 U.S. 908 (1973),

(construction of federal correctional facility). Graz-

ing clearly may have a severe impact on local envi-

ronments. Moreover, in some states the BLM admin-

isters a huge proportion of the state’s acreage. Tn

Nevada, for example, 86 percent of the total area of

the state is administered by the BLM?® and the record

illustrates the damage that has occurred there from

overgrazing and improper land management. See qgen-

erally, Bureau of Land Management, Effects of Live-

stock Grazing on Wildlife. Watershed, Reereation

and Other Resource Values in Nevada (April 1974).

The court is therefore persuaded that the grazing

permit program produces significant impacts on in-

dividual locales. And when the cumulative impact of

the entire program is considered it is diffieult to un-

derstand how defendants-intervenors can claim either

5Intervenors’ Memorandum of Points and Authorities in Sup-

port of Motion to Intervene, filed” January 2, 1974. at 10. This

memorandum indieates that the state with the lowest amount of

federal land is Washington, and even there 29 percent of the

land area is federal.

that the impact of the program is not significant or

that the federal action involved is not major.®

Federal defendants, unlike defendants-intervenors,

concede that NEPA applies to the BLM grazing pro-

gram but argue first that plaintiffs’ suit is premature

and should await issuance of the final programmatic

impact statement,’ and second that the Bureau is not

in violation of the Act since the programmatic impact

statement sufficiently complies with the intent of

NEPA.

Lrhaustion of Administrative Remedies

Federal defendants urge that plaintiffs’ suit is not

timely since under the doctrine of exhaustion of ad-

ministrative remedies the BLM should have an op-

portunity to prepare an EIS which it believes satis-

fies NEPA’s requirements before plaintiffs may seek

‘Defendants-intervenors also argue that the plaintiffs’ remedy

should be barred by the doctrine of laches. However, the court

agrees with Judge Friendly that the “hardiness of the parties

in raising the issue cannot excuse compliance with NEPA.”

City of New York v. United States, 337 F. Supp. 150, 160

(E.D.N.Y. 1972) (three-judge court). The primary responsi-

bility for fulfilling the requirements of the Act rests with the

agency. Id.; Jones v. Lynn, 477 F.2d 885, 892 (1st Cir. 1972) ;

see Calvert Cliffs’ Coordinating Committee v. AEC, 449 F.2d

1108, 1118-19 (D.C. Cir. 1971).

7Federal defendants also contend that there is no “final ageney

action” within the meaning of the Administrative Procedure Act,

5 U.S.C. § 704 (1970). The APA, however, specifically provides

that the court may compel action which has been unlawfully

withheld or unreasonably delayed. Jd. § 706; see Environmental

Defense Fund v. Frochlke, 348 F. Supp. 338, 341 (W.D. Mo.

1972), aff'd, 477 F.2d 1033 (8th Cir. 1973).

8Plaintiffs and federal defendants agree that although NEPA

applies to programs which were instituted prior to NEPA with

no apparent completion date, it does not require that the pro-

gram be halted until an EIS is filed. See Lee v. Resor, 348 F.

Supp. 389 (M.D. Fla. 1972); 40 C.F.R. § 1500.5(a)(2) (1974).

court action. In support of this contention federal

defendants cite Coalition for Safe Nuclear Power v.

ALC, 463 F.2d 954 (D.C. Cir. 1972), and Committee

to Stop Route 7 v. Volpe, 4 ERC 1681 (D. Conn.

1972). In Coalition for Safe Nuclear Power the court

rejected as premature plaintiffs’ request for injune-

tive relief against construction of a power plant pend-

ing full NEPA review. The court indicated that ex-

haustion of agency proceedings was normally required

and remanded for specific hearing by the agency

within 60 days. This court agrees with plaintiffs, how-

ever, that the ease is inapposite, since the AEC pro-

vided a specifie hearing procedure which does not

exist in the present case. See id. at 955-56. Moreover,

there is merit to the observation of the court in Naf-

ural Resources Defense Council, Ine. v. Tennessee

Valley Authority, 367 F. Supp. 122 (F.D. Tenn.

1973), that it is doubtful whether there is a true ad-

ministrative remedy available to private individuo’

under NEPA, Id. at 130-31. The court stated:

“There only exists the right to comment and ex-

press one’s views, a right which a person alwavs

has. We are, therefore, of the opinion that the

exhaustion of the administrative remedies doe-

trine has no application under the facts of this

ease.” Td. -

See also Minnesota Environmental Control Citizens

Association v. AEC, 4 ERC 1876, 1878 (PD. Minn.

1972). The court finds federal defendants reliance on

Committee to Stop Route 7, supra, equally misplaced

since plaintiffs do not quarrel with the content of the

programmatic EIS, nor do they seek to have the court

inject itself in its preparation. Plaintiffs instead con-

tend that the proposed statement, even if an excellent

programmatic EIS, is insufficient standing alone.

They argue that they need not await a final version

of the impact statement since it is not review of the

specifics of the final agency programmatic statement

which they seek, but a declaration that a program-

matic statement does not comply with the law. The

court is in agreement with this analysis of the com-

plaint.

Moreover, the rationale of the doctrine of exhaus-

tion of remedies is to allow the agency time to com-

plete its assigned duties before judicial intervention

is countenanced. The Court of Appeals for this Cir-

euit, in considering the relation of the notice provi-

sion of the Federal Water Pollution Control Act® to

the requirement of exhaustion of administrative rem-

edies stated:

“Sound diseretion bids a court stay its hand upon

petition by the Administrator where there is rea-

son to believe that further ageney consideration

may resolve the dispute and obviate the need for

further judicial action. However, . . . the court

may promptly proceed to the merits of the ac-

tion when it is confident or hecomes confident

that ageneyv recourse is futile, as where the agen-

ey’s position is firm.” Natural Resources Defense

Council ve Train, Civil No. 74-1483 (D.C. Cir.,

Dee. 5, 1974), slip op. at 20.

933 U.S.C. , 1365(b)(2) (Supp. TH, 1972). This section re-

quires notice to the agency before commencing a civil suit to

enforce provisions of the Act.

This court might be less willing to consider the plain-

tiffs’ claims if the BLM had demonstrated more dili-

gence in pursuing its own role. The Bureau did not

determine to prepare a programmatic EIS on the

grazing program until June, 1972, two and one-half

vears after the effective date of the Act.’ A prelimi-

nary draft was not then issued until Mareh, 1973,

with a second draft in October, 1973. In March of

1974 the final draft was prepared and the federal de-

fendants represented to the court that the final EIS

was expected to be issued in the summer of 1974.

Although the court would naturally prefer to await

the filing of the final statement, it is clear that the

BLM has delayed bevond reason. Indeed, in Natural

Resources Defense Council v. TVA, supra, the entire

process of preparing the programmatic EIS, from

initiation of research to issuance of the final state-

ment, appears to have taken only six months. 367 F.

Supp. at 131.

It should be noted that the only apparent step left

in the approval of the draft impact statement is the

incorporation of public comments received after pub-

lication in the Federal Register."' Even in the un-

likely event that significant alternations were made

in the final statement, the ageney has shown no will-

ingness to alter the statement’s format as a strictly

19BLM procedures for implementing the policy and directives

of NEPA were published in July 1972. See 37 Fed. Reg. 15015

(1972).

‘Notice of availability of the draft was published April 16,

1974. See 39 Fed. Reg. 13697 (1974). The comment period was

extended to July 16, 1974. See id. 22169,

programmatic assessment. Thus the eventual ETS will

not be geographically individualized and its ultimate

adoption will have no effect on plaintiffs’ current

suit.’?

One other factor has persuaded the court to reach

the merits of this claim. Over the past four vears the

BLM has shown relatively slow progress in imple-

menting a thorough management planning system

which would assist in protecting the environment.

As noted above, the BLM estimated that 8,230 AMP’s

are needed. Only 1,015 plans were implemented

through fiscal vear 1973, and completion of all AMP’s

is not estimated until the vear 2000. Thus, in a sub-

stantial and practical sense there is a serious threat

of injurv to the public lands which lends urgency to

plaintiffs’ claims. While the court should always be

reluctant to rule on issues before full and final ageney

determination, to wait until the filing of the final pro-

evammatie ETS would be a useless act and would

thwart Congressional intent, redueing NEPA to a

mere “paper tiger.” Having considered the above, it

appears to the court that there are no appropriate

ageney procedures which plaintiffs should be required

to exhaust and that the situation dictates a decision

by this court on the merits of the claim.

12The doctrine of exhaustion of remedies is closely related to

the doctrine of primary jurisdiction which is generally applied

to insure uniformity of treatment and regulation. The applica-

tion of the latter and the granting of a stay pending admin-

istrative action rest in the sound diseretion of the court eon-

sidering all facts and cireumstances presented to it. Ratner v.

Chemical Bank New York Trust Co., 309 F. Supp. 983 (S.D.

N.Y. 1970).

adel

wd. oP

BLM’s Programmatic Impact Statement

Section 102 of NEPA provides in pertinent parts:

“The Congress authorizes and directs, to the full-

est extent possible: (1) the policies, regulations,

and public laws of the United States shall be

interpreted and administered in accordance with

the policies set forth in this Act, and (2) all agen-

cies of the Federal Government shall

* *

(B) identify and develop methods and _ pro-

cedures, in consultation with the Council on

Environmental Quality established by title IT

of this Act, which will insure that presently

unquantified environmental amenities and val-

ues may be given appropriate consideration in

the decisionmaking along with economic and

technical consideratiofis; . . .” 42 U.S.C. § 4332

(1970).

Section 102 then establishes the requirement that im-

pact statements be filed in all major federal actions

significantly affecting the human environment. Thus

NEPA makes environmental protection part of the

mandate of every federal agency, compelling them to

consider environmental issues just as they consider

other matters within their mandate. See Calvert

Cliffs’ Coordinating Committee v. AEC, 449 F.2d

1108, 1112 (D.C. Cir. 1971). The courts have followed

a strict interpretation of these provisions in a num-

ber of cases despite weighty counter-considerations.

In Natural Resources Defense Council v. Morton, 458

F.2d 827 (D.C. Cir. 1972), the District of Columbia

Circuit upheld an injunction of oil and gas leases on

the continental shelf off of Louisiana despite the pro-

found national energy crisis and although the shelf

was an established prolitic source. Jd. at 831. In

another case, involving the nation’s helium reserve

program, NEPA was held by the court to be “noth-

ing less than a mandate to the Secretary of the Inte-

rior to either follow the prescribed procedure in tak-

ing the relevant action or to show that it is not ‘pos-

sible’ within the meaning of the NEPA.” National

Helium Corp. v. Morton, 326 F. Supp. 151, 156 (D.

Kan.), aff'd 455 F.2d 650 (10th Cir. 1971). And in

Calvert Cliffs’ Coordinating Committee v. AEC,

supra, the District of Columbia Circuit noted that the

spectre of a national power crisis must not be used

to create a blackout of environmental considerations

in the ageney review process. 449 F.2d at 1122. The

court in Calvert Cliffs’ discussed the NEPA require-

ments and stated that:

“the Section 102 duties are not inherently flex-

ible. They must be complied with to the fullest

extent, unless there is.a conflict of statutory au-

thority. Considerations of administrative diffi-

culty, delay or economic cost will not suffice to

strip the section of its fundamental importanee.”

449 F.2d at 1115 (citation omitted).

The court thus underscored the rigor with which the

NEPA requirements must be applied and the impor-

tance of adhering to a strict interpretation to these

provisions, further stating:

“Our duty, in short, is to see that important leg-

islative purposes, heralded in the halls of Con-

gress, are not lost or misdirected in the vast hall-

ways of the federal bureaucracy.” 449 F.2d at

1111.

This court is therefore constrained to follow the

requirements of NEPA to the maximum extent pos-

sible.

The court has examined the cases cited by the par-

ties, especially Natural Resources Defense Council v.

TVA, supra, on which federal defendants rely to

establish the appropriateness and sufficiency of their

programmatic statement. In that case defendant TVA

purchased coal under contracts of various lengths to

supply TVA generating facilities. Defendant TVA

completed an EIS which examined the policies in-

volved in selecting coal sources and weighed the prob-

lems of strip versus deep coal mining. This EIS was

fled to cover all of the present and future actions by

TVA dealing with coal procurement; TVA did not

prepare impact statements for individual contracts.

The court, after careful scrutiny of the EIS and of

the provisions of section 9(b) of the TVA Act"

requiring competitive bidding on all contracts, deter-

mined that the filing of individual impact statements

for each term coal contract would conflict with the

Act’s competitive bidding requirements. The court

went on to find that, even absent a contrary -conflict,

the programmatic EIS and the applicable TVA regu-

lations were within the spirit of the recommendations

set out by the Council for Environmental Quality.

367 F. Supp. at 131.

1316 U.S.C. § 831h(b) (1970).

The court does not believe that the same conclu-

sions are permissible in the present case. As noted

above, the 102(2)(C) requirements are not to be dis-

pensed with lightly. In section 102 Congress author-

izes and directs preparation of detailed impact state-

ments “to the fullest extent possible.” This language

has been consistently construed to require compliance

with NEPA unless such compliance would give rise

to a violation of other statutory authority under

which the agency is preceeding. Natural Resources

Defense Council v. TVA, supra at 125; Environmen-

tal Defconse Fund v. TVA, 468 F.2d 1164, 1175 (6th

Cir. 1972): Calvert Cliffs’ Coordinating Committee v.

AEC, supra, at 1114-15. No such direct conflict be-

tween NEPA and the Taylor Grazing Act exists. The

Taylor Act is not purely environmental since it is

aimed at promoting the highest use of the public

lands; NEPA seeks to protect the environment. Com-

pare 43 USC. 8315 (1970) with 42 USC. § 4321

(1970). These two purposes, as pointed out above, are

not the same, but are not in such conflict that a rigor-

ous application of NEPA would give rise to violations

of the Taylor Act.

Moreover, in Natural Resources Defense Council v.

TVA, supra, the plaintiffs sought to compel the

agency to file statements for each long term coal con-

tract. The entire operation of numerous generating

facilities was dependent on seenring coal supplies,

and prices in the coal market’ fluctuated <reatly.

Delay caused by the preparation of impact. state-

ments, normally six months to a vear, would have

limited seriously the number of coal companies which

would bid on TVA term coal contracts. 367 FL Supp.

at 125-26. No such considerations are present in this

case. Plaintiffs do not ask that impact statments be

filed for every license or permit issued or renewed by

the BLM. Nor do they seek an immediate injune-

tion of the licensing program which could admittedly

have a most deleterious effect on the entire livestock

industry. While the permit program might be jeop-

ardized at some future time, livestock operators would

not be affected at this time by a finding that the pro-

grammatic ELS prepared by the BLM was legally

insufficient."

The purposes of an EIS were summarized by the

court in Environmental Defense Fund vo TVA, 339

F. Supp. 806 (E.D. Tenn.), aff'd, 468 F.2d 1164 (6th

Cir. 1972) as follows:

“The purpose of a section 102 (2)(C) detailed

environmental impact statement is (1) to aid the

agency’s decision-making process and (2) to

advice the publie of the environmental conse-

quences of the proposed action. The requirement

14In Scientists Institute for Public Information, Inc. v. AEC,

supra, the Court of Appeals for this Cirenit approved a_pro-

grammatic statement as an appropriate manner in which to assess

a broad program to develop nuclear reactors. It did not, however,

condone the filing of a mere environmental survey. In addition,

the programmatie statement covered future, not ongoing action.

As plaintiffs point out at least one type of program statement

referred to in the CEQ Guidelines would be appropriate “in

order to assess the environmental effeets of a number of indi-

vidual actions on a given geographical area.” See 40 C.F.R.

§ 1500.5(1) (1974). That does not, strictly speaking, encompass

the present situation since the “given geographical area” con-

templated by the BLM’s EIS is comprised of 171 million acres.

In the present case, plaintiffs are seeking impact statements fo-

cused at the district or loeal level for purposes of assessing the

environmental effects of permits for the grazing of livestock on

such local geographic areas.

seeks to insure that each agency decision-maker

has before him, and takes into account, all envi-

ronmental impacts of a particular project. Only

if this is done will the most intelligent, option-

ally [sic] beneficial decisiou be likely to result.

Moreover, the detailed statement provides evi-

dence that these factors have been taken into

account. More importantly, it allows those re-

moved from the decision-making process to evalu-

ate and balance the factors on their own. Jd. at

810.

In the BLM grazing license program the primary

decision-maker is generally the individual district

manager and his staff who approve license applica-

tions. While the programmatic EIS drafted by the

BLM provides general policy guidelines as to relevant

environmental factors, it In no way insures that the

decision-maker considers all of the specifie and par-

ticular consequences of his actions, or the alternatives

available to him.'® The proposed EIS does not pro-

vide the detailed analysis of local geographic condi-

tions necessary for the decision-maker to determine

what course of action is appropriate under the eir-

cumstances,

Additionally, the programmatic EIS does not allow

those who. are not part of the decision-making process

to adequately evaluate and balance the factors on

their own. While NEPA does net require publie hear-

ings, it does provide a formalized procedure for such

I4°EQ Guidelines provide as follows:

“The amount of detail provided in such descriptions should

he commensurate with the extent and expected impact of the

action, and with the amount of information required at the

particular level of decisionmaking (plannjag, feasibility, de-

sign, ete.).” 40 C.F.R. § 1500.8(a)(1) (1974).

citizen input. In the present case the publie will have

the opportunity to comment only on the programmatic

impact statement. Undoubtedly national organiza-

tions, such as plaintiii? NRVC, will provide comments

and engage in the review process. However, when

it comes to the actual implementation of the license-

ing permit program at the local level, there will be

no opportunity for particularized input by state and

local citizens.” Even though the actual permits may

be made public, that provides only information from

the government to the citizens and does not allow

information to flow from the citizens to the govern-

ment.'’ As the court stated in Calvert Cliffs’ Coor-

dinating Committee v. AEC supra, “|eljoncerned

members of the public are thereby precluded from

raising a wide range of environmental issues in order

to affect particular... decisions. And the special pur-

pose of NEPA is subverted.” 449 F.2d at 1123.

Returning again to Nalural Resources Defense

Council v. TVA, supra, one last important factor dis-

tinguishes the case at bar from the coal contract

situation. The mandatory TVA contract provision

required mining companies to submit a pre-mining

report. prior to the time TVA awarded its contracts.

Each report considered environmental problems such

as acids, slides, erosion and esthetics involved in the

particular area to supply the coal under the contract.

16The only real opportunity for local comment appears to be

after the preparation of the unit resouree analysis.

17There has been some recognition by the BLM that this type

of input is desirable, as witnessed by the expansion of the (raz-

ing Advisory Boards from merely livestock operators to inelude

some environmental representatives. See generally 43 C.F.R.

§§ 4114.1-1, 4114.2-1, 4114.3-1 (1973).

367 F. Supp. at 127-28. Such reports appear to deal

in a most particularized and detailed manner with

the environmental factors specifically related to the

area to be mined. While the BLM has certain licens-

ing requirements, they relate mainly to the timing

and duration of the allowable grazing period and the

number of animals involved.'* The court has exam-

ined the Federal Range Code, 43 C.F.LR. $9 4110.0-2

et seq. (1973), portions of the BLM Manual, and

sample licenses and finds them insufficient to fulfill

the purpose defined for an impact statement. They

do not adequately assess'*® the individual district or

‘area situations so as to provide the loeal decision-

maker with the data necessary to analyze the alter-

natives open to him and their consequences.”” A pro-

gram statement may be very helpful in assessing

recurring policy issues and insuring consideration of

the cumulative impact that numerous decisions might

18Permits and leases for terms, generally 10 vears, are made

only after an AMP is agreed to between BLM and the grazer.

The AMP is therefore a part of the term permit. In areas for

which no AMP has been prepared only annual licenses are issued.

19Tndeed the BILM itself, in its report concerning public lands

in Nevada indicates that the MFP’s should be more specifie in

their recommendations and get away from “motherhood state-

ments.” Bureau of Land Management, Effects of Livestock Graz-

ing on Wildlife, Watershed, Recreation and Other Resource

Values in Nevada, supra, at 9. The report also notes that many

Nevada AMP’s are ineftective and did not have sufficient studies

made on them. /d. at 6. This is not to say, however, that a thor-

ough and adequate AMP, in conjunction with a programmatie

statement might not meet the NEPA requirements. However,

AMP’s exist for only a portion of the millions of acres supervised

by the BLM.

20>In Natural Resources Defense Council v. TVA, supra, the

court also found that the Council on Environmental Quality had

viven the impression that it had accepted the procedure of a

single program statement for TVA’s coal purchases. No such

representation has been made in the present case.

| |

have on the environment, but that does not mean that

it will suffice to fulfill the Nile PA mandate. The court

is convinced that the BLM programmatic statement

alone, unrelated to individual geographic conditions,

does not permit the “finely tuned and ‘systematic’

balancing analysis” mandated by NEPA. See Calvert

Cliffs’ Coordinating Commiltec v. ARC, supra at

1113.

While the BLM may decide in the future to pre-

pare specific impact statements on new activities, for

the present grazing will continue on millions of acres

without adequate individualized assessment of the im-

pact of such grazing on local environments,' and

extensive environmental damage is possible. Indeed,

the plaintiffs note that the BLM Budget Justification

for fiscal vear 1973 estimated that only 16 percent of

the BLM managed grazing land was in good or excel-

lent condition while 84 pereent was in fair, poor or

had condition. In addition, plaintiffs present evidence

from both private and governmental sources demon-

strating that serious deterioration of BLM lands is

taking or has taken place. In its first annual report,

the Council on Environmental Quality reported that

overgrazing had dramatically affected the public

lands.

“Much of this land, particularly the vast publie

domain, remains in desperate condition, as wind,

21The court is cognizant of the fact that the Department of

the Interior is also preparing several other programmatic state-

ments on activities such as watershed protection and herbicide

usage which relate in part to grazing. There is nothing, however,

to support an argument that “major individual actions” ean

proceed without a specifie EIS while “broad program statements”

ure under preparation.

‘ain, and drought have swept over them and

eroded their exposed soils. Although the effects

of overgrazing in rich pastures or prairie farm-

land can be quickly corrected, the process is

often irreversible on the limited soils and arid

climate of much of the public lands.” CEQ, Envi-

ronmental Quality 182 (1970).

Unfortunately this situation has not been rectified

since that date. A recent Bureau of Land Manage-

ment report entitled Kffects of Livestock Grazing on

Wildlife, Watershed, Recreation and Other Resource

Values in Nevada (April 1974) documents the seri-

ous damage being wrought on the environment. The

report, compiled by a team of BLM resource man-

agers, states flatly that wildlife habitat is being de-

stroved. “Uncontrolled, unregulated or unplanned

livestock lise is occurring in approximately 85 pereent

of the State and damage to wildlife habitat can be

expressly [sie] only as extreme destruction.” Td. at 13.

Overgrazing hy livestock has caused invasion of sage-

brush and rabbitbrush on meadows and has decreased

the amount of meadow habitat available for wildlife

survival by at least 50 percent. The reduced meadow

area has caused a decline in beth game and non-game

population. 7/7. at 26. In addition, there are 883 miles

of streams with deteriorating and declining wildlife

habitat. thus making it apparent, accordine to the

report, that @razing systems do net protect and en-

hance wildlife values. Jd. at 14, 29.*?

22Whether the original deterioration oceurred hefore or during

RLM management is irrelevant since the erucial questions are

whether it ean he allowed to continue and whether it will be

exacerbated by continued grazing.

cen tale

a Polen

While Congress has determined that public lands

should be put to the best use possible, it has also

demonstrated a strong interest in protecting the en-

vironment. In the present case over 100 million acres

of public land are being leased for grazing aithough

apparently no thorough analysis has been made of

the specific impact of such activity. The cowrt is,

therefore, of the opinion that major federal actions

having significant effects on the environment are be-

ing taken without full NEPA compliance, even though

that Act has been in effect almost five years.

The court is aware that, like many agencies, the

BLM has been given large seale tasks to be aceom-

plished with limited manpower. That does not mean,

however, that the ageney may ignore or pay mere

lip service to the NEPA requirements. In addressing

a similar problem in Natural Resources Defense

Council v. Train, supra, Judge Leventhal wrote:

“Although these steps may be cumbersome, even

awesome, they may well be within the agency’s

erasp, at least generally. The court’s injunction

should serve like adrenalin, to heighten the re-

sponse and to stimulate the fullest use of re-

sources, This may run the risk of overstimulating

the organism, but palliative measures mav be

taken with regard to specifie categories if indi-

cated at a later date.” Slip op. at 39.

Judge Leventhal continued:

“Tf relief is granted by the court, the issue of

anv shortfall in performance by the ageney will

heeome a matter for discussion within the perti-

nent committees and bodies of the legislature.

The court will have done all that the legislature

could fairly have contemplated from the judicial

function of assuring executive compliance with

the legislative mandate.” Slip op. at 43.

For the above reasons the court will grant relief to

the plaintiffs by entering a judgment declaring that

the programmatic environmental impact statement

prepared by the BLM, standing alone, is not suffi-

cient to comply with the NEPA requirements. As

noted above, plaintiffs have not sought an impact

statement for each permit. The crucial point is that

the specifie environmental effeets of the permits is-

sued, and to be issued, in each district he assessed. It

will be initially within the BLM’s discretion to de-

termine whether to make this specifie assessment in

a separate impact statement for each district, or sev-

eral impact statements for each district, or one im-

pact statement for several districts or portions there-

of, or indeed by other means. So long as the actual

environmental effects of particular permits or groups

of permits in specifie areas are assessed, questions

of format are to be left to defendants. The court

will maintain jurisdiction in order to facilitate fu-

ture review of the methods chosen by the BLM, and

a time period for agency formulation of procedures

will he set by subsequent order on recommendation

of the parties. An appropriate Judgement aecompanics

this Memorandum Opinion.

/s/ Thomas A. Flannerv

United States District Judee

December 30, 1974

Date

ee re

United States District Court

for the District of Columbia

Civil Action No. 1983-73

Natural Resources Defense Council, Ine., |

et al., |

Plaintiffs, |

Vs.

Rogers C. B. Morton, et al.,

Defendants.

[Filed Dec. 30, 1974]

JUDGMENT

This matter came before the court on the eross-

motions of plaintiffs, federal defendants, and defend-

ants-intervenors for summary judgment. This court

having determined that the federal defendants have

violated $102(2) of the National Environmental Pol-

ley Act, 42 U.S.C. 88 4321 ef seq. (1970), with respeet

to their issuance or renewal of permits for the eraz-

ing of domestic livestock upon tiie Publie Lands ad-

ministered by the Bureau of Land Management and

that plaintiffs’ are, therefore, entitled to declaratory

relief, it is by the court this 30th day of December,

1974,

Orverep that plaintiffs’ motion for summary jude-

ment as to the federal defendants’ violation of the

National Environmental Policy Act be, and the same

hereby is, granted; and it is further

ORDERED that the motions of federal defendants and

defendants-intervenors for summary judgment be, and

the same hereby are, denied; and it is further

OrpdERED, ApDJUDGED and DrcLarep that:

1. The proposed Bureau of Land Management

programmatic environmental impact statement, stand-

ing alone, is not sufficient to comply with the require-

ments of §102(2) of the National Environmental

Policy Act, 42 U.S.C. §8 4321 et seq. (1970) ;

2. Defendants Rogers C. B. Morton and Curtis J.

Berklund have a mandatory, non-discretionary duty

pursuant to §102(2) to prepare, publicly circulate,

and consider environmental impact statements which

satisfy the National Environmental Policy Act in all

respects and which discuss in detail the environmental

effects of the proposed livestock grazing, and alterna-

tives thereto, in specifie areas of the public lands

which are or will be licensed for such use, subject to

the timetable to be established pursuant to para-

graphs 3 or 4 of this Order and in aecordance with

the Memorandum Opinion accompanying this Judg-

ment ;

3. The federal defendants shall confer with plain-

tiffs within the next thirty days for the purpose of

determining whether the parties can agree on a sched-

ule for preparation of the above-described statements.

Upon such agreement. the parties shall submit a stip-

el end als 1 OAT Ae,

ulation which sets forth that schedule for this court’s

approval and entry of a further order thereon;

4. In the event that the parties cannot agree on a

schedule for the preparation of the above-described

statements they shall so advise this court by motion

or otherwise not later than forty-five days after entry

of this Order, and they shall request this court to set

an appropriate schedule or indicate whether discovery

is required to determine same; and

). This court shall retain jurisdiction of this mat-

ter until the federal defendants have complied with

the terms and conditions of this judgment; and it

is further

ORDERED and AbDJUDGED that judgment be entered

for plaintiffs.

/s/ Thomas A. Flannery

United States District Judge

Appendix E

United States District Court

for the District of Columbia

Civil Action No. 1983-73

Natural Resources Defense Council, Ine..

et al.,

Plaintiffs, |

CA Defendants. |

Pacific Legal Foundation, et al..

Defendants-Intervenors. |

vs.

Rogers C. B. Morton, et al.,

[Filed Jan. 28, 1975]

ORDER

This matter is before the court on defendants-inter-

venor’s motion to reconsider this court’s judgment of

December 30, 1974 in this action, or in the alternative

for a stay pending resolution of their appeal. Plain-

tiffs oppose beth motions and federal defendants have

taken no position.

The court has considered the memoranda submitted

by the parties and has determined that no basis for

reconsideration exists. While defendants-intervenors

question the court’s reliance on an exhibit entitled

Effects of Livestock Grazing on Wildlife, Watershed,

“a

Recreation and Other Resource Values in Nevada

prepared by the Bureau of Land Management, the

court is of the opinion that, even if the exhibit con-

tains inaccuracies there is other evidence in the reec-

ord which is more than sufficient to support the court’s

findings.

The court further finds that a stay of the judg-

ment pending appeal would be inappropriate since

defendants-intervenors will not be injured by the

declaratory relief ordered by the court. Federal de-

fendants have not sought a stay and have begun nego-

tiations to carry out the order of the court. In light

of the foregoing, it is by the court this 28th day of

January, 1975,

OrperRED that defendants-interverors’ motions be,

and the same hereby are, denied.

‘s/ Thomas A. Flannery

United States District Judge

Appendix F

In the United States District Court

for the District of Columbia

Civil Action No. 1983-73

Natural Resources Defense Couneil, Ine.,

et al., yo |

Plaintiffs,

vs |

Rogers C. B. Morton, et al., |

Defendants.

Pacific Legal Foundation, et al.,

Defendants-Intervenors.

nts

[Filed Jun. 18, 1975]

FINAL JUDGMENT

This matter originally came before the Court on

the cross-motions of plaintiffs, federal defendants,

and defendants-intervenors for summary judgment.

On December 30, 1974, this Court issued its Mermo-

randum Opinion and Judgment in which it granted

plaintiffs’ motion for summary judgment and denied

these of the federal defendants and the wefendants-

intervenors. Ino such Judement, the Court deter-

mined. inter alia, that the federal defendants are

required by Section 102(2) of the National Enviren-

mental Poliev Act (NEPA), 42 U.S.C. 65 4321 ef

seq., to prepare environmental impact statements

which discuss in detail the environmental effects of

livestock grazing, and alternatives thereto, on spe-

cifie areas of the public lands under the jurisdiction

of the Bureau of Land Management (BLM) which

are or will be authorized for such use. Paragraph 3

of the Judgment further required that the plaintiffs

and federal defendants confer for the purpose of

determining whether they could agree upon a schedule

for the preparation of Environmental Impact State-

ments required by such order and that upon such

agreement the parties submit a stipulation setting

forth that schedule for the Court’s approval and en-

try of a further order thereon. Upon reading “and

filing The Agreement, dated April 11, 1975, between

the plaintiffs and the federal defendants, in which the

parties thereto stipulate to the entry of a final judg-

ment herein (supplementing the Judgment of Deeom-

her 30, 1974) and good cause appearing therefor,

it is by the Court this 18th day of June, 1975,

Heresy Ornperen Apavpcep ann Deciarep that:

1. The aforesaid agreement dated April 11. 1975,

hereinafter referred to as The Agreement, is hereby

approved by the court as a means for full and com-

plete comphance with the aforesaid order of Deeem-

her 30, 1974.

2 The Bureau of Land Management. hereinafter

referred to as BLM, shall canse to be prenared mub-

liely cirentated, and considered in their deeisionnmak-

ing processes as required by law, Environmental Im-

pact Statements, hereinafter referred to as EIS(s),

concerning the environmental effects of livestock graz-

ing activities (hereinafter defined) on the public lands

of the United States specified in Exhibit A of The

Agreement. Such EIS’s shall comply with the Na-

tional Environmental Policy Act (NEPA) in all re-

spects and shall be considered to be completed when

filed with the Council on Environmental Quality and

notice of the same is published in the Federal Ree-

ister.

3. An EIS shall be completed for each of the 212

specifie geographical areas of the publie lands which

the Federal Defendants have demarcated for such

purpose. These areas, approximating 150,000,000

acres, are identified in Exhibit A of The Agreement.

4. It is the intention of BLM that the aforesaid

212 EIS’s will cover groupinge of Allotment Man-

agement Plans, hereinafter referred to as AMPs),

which comprise those areas described in said Exhibit

A, except in those cases of lands upon which no AMP

will be prepared and/or implemented which consist

of approximately 17 million acres and are, in BEAs

opinion, suitable for only custedial grazing manage-

ment by BLM or other prierity uses. OF these 17

million acres, it is BLM’s opinion that approximately

7 million aeres are characterized as small and seat-

tered tracts (generally less than 1 seetion in size),

many of which have little resouree valne and ‘or

where the Federal interest is crossly suberdinate dine

to other ownership or by physical or administrative

factors: and approximately 10 million acres will be

phased out for grazing purposes because of the pliys-

ical or ecological limitations, or because of the need

for higher priority uses such as recreation sites, wild-

life sanctuaries, mineral development, or timbered

areas, or disposed of by transfer or other means.

Plaintiffs understand that the preceding statements

in this subparagraph reflect BILM’s intentions and

views on these matters, but the procedures and meth-

odolegy for the preparation of ETS’s, as specified in

this subparagraph, are by this Court’s order to be

left for initial determination by the Federal Defend-

ants and therefore are not the subject of agreement

by Plaintiffs, However, it is ordered that said 17

million acres shall nonetheless be treated by FIS(s)

a provided in The Agreement covering the livestock

grazing activities occurring on such lands even though

no AMP may be prepared and/or implemented.

». One ETS on the Challis Plannine Unit. Salmon

District, Idaho. shall be completed by the end of FY

1976. This EIS will be used as the initial model for

preparation of future ETS’s. During FY 1977 through

and inelndine FY 1981 the ETS’s will be completed

in accordance with the schedule shown in Exhibit B

of The Aereement (which comprises a total of 70

ETS’s on approximately 104,000,000 acres).

6. Durne FY 1982 through and ineludine FY

1988, all of the ETS’s remainine to be prepared as

contemplated by The Aereement shall be eon pleted

in sneh nertod and shall he completed at a veordy

rate of at least 147 of the total (141). enmlative

minimum. and provided further, that notice of lend

descriptions and the number of EIS’s to be com-

pleted each year, beginning in 1982, shall be published

in the Federal Register at least 60 days prior to the

beginning of each such year.

7. Each EIS contemplated by The Agreement will

discuss in detail “livestock grazing activities” and all

reasonable alternatives thereto. “Livestock grazing

activiti~<” as used in this Order shall mean all exist-

ing or proposed livestock grazing, all grazing use au-

thorizations issued or contemplated to be issued by

BLM as well as those substantial activities which are

supportive of and related to livestock grazing ad-

ministered by BLM, such as fencing, livestock water

development, spraying, chaining, seeding, and brush

removal.

8. It is ordered that BLM will not implement any

AMP or its equivalent after the end of FY 1975

(which will allow implementation of not more than

5 AMP’s prior to the end of FY 1975) prior to the

completion of an EIS covering such AMP, and fur-

ther that the Federal Defendants recognize that ac-

tion(s) which are supportive of grazing as described

in subparagraph (7) above may have significant

impact on the human environment and it is hereby

ordered that in such eases, no such action(s) will be

undertaken without an EIS completed on such action

er area. Until an appropriate ETS is completed, the

Federal Defendants will adhere to the current poliey

of limiting authorizations for livestock CYrAZINe ay?)

any given area to an annual authorization basis, to

the extent allowed by law.

9. The parties in The Agreement have set forth

a schedule which they believe is, at this time, attain-

able. However, if the Federal Defendants, in good

faith, believe the circumstances require deviations

from the EIS completion schedule and procedures

as contemplated by The Agreement, such deviat

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