# Petition — Pacific Legal Foundation v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1978%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 427 U.S. 659 ## 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 ¢ 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. | | 67 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. 68 ‘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 69 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 70 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 71 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 72 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, 73 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 74 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. | 4 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 ' : : | 79 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 76 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 ee 77 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- 78 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 79 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 80 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~ & *Sitting by designation pursuant to 28 U.S.C. § 2992/4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1978%3A1. Public record. Not legal advice.