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February 14, 1973 to compensate the contractor when sale contract, we must ascertain the Government has acted unilater- whether the action herein was justially. Such a termination, in the fied as being in the public interest. absence of a statute or contract Section 1 of the Act of July 31, 1947, clause establishing the rights, is a as amended, 30 U.S.C. § 601 (1970) breach of contract for which the grants to the Secretary of the Incontractor is entitled to damages. terior the power to dispose of timUnited States v. Purcell Envelope ber on the public lands subject to Co., 249 U.S. 313 (1919). In the the limitation that disposal should absence of a statute so authorizing, not be made if to do so would be specific performance is not a ju- detrimental to the public interest. dicial remedy available against the The District Manager's decision Government. United States ex rel.
stated that the sale did not meet the Shoshone Irr. Dist. v. Ickes, 70 F.2d criteria set out in the National En771 (D.C. Cir. 1934), cert, denied, vironmental Policy Act, 42 U.S.C. 293 U.S. 571 (1934).
S$ 4321 et seq. (1970). In section 101 Appellant contends that the
of the Act, 42 U.S.C. $ 4331 (1970), Dillon District Manager who termi- Congress declared the policy of the nated the timber sale contract, in
federal government to be to foster volved herein, lacked authority to
and promote the general welfare do so. In 43 CFR 5400.0–5 "author
and to create and maintain condiized officer” is defined as "an em- tions under which man and nature ployee of the Bureau of Land Man
can coexist in productive harmony. agement to whom has been dele
In the same section Congress said gated the authority to take action"
that: on timber sale contracts. The au
(b) In order to carry out the policy set thority to contract for the sale of
forth in this chapter, it is the continuing timber and to administer timber
responsibility of the Federal Government sales was delegated to the state di
to use all practicable means, consistent rectors and district managers by with other essential considerations of naBureau Order No. 701, dated July tional policy, to improve and coordinate 23, 1964 (29 F.R. 10526). Thus the Federal plans, functions, programs, and State Director and District Man
resources to the end that the Nation
may ager are "authorized officers and as
(1) fulfill the responsibilities of each such they have the power to termi
generation as trustee of the environnate a contract when such is in the
ment for succeeding generations ; best interests of the Government. See Irvin Pearce d/b/a Pearce
(3) attain the widest range of benefiBros., 5 IBLA 373 (1972).
cial uses of the environment without degHaving found that the Dillon
radation, risk to health or safety, or District Manager was not acting other undesirable and unintended conseoutside the scope of his authority in quences; unilaterally terminating the timber
The decision to unilaterally ter- the obvious threat to the environminate the contract was made only ment. after the contract area was inspected A rather extensive soil inventory by the Dillon District Manager, the study of the Centennial Mountain Dillon District Forester, personnel area was filed with the State Direcfrom the State Office, Division of tor, Montana, by two soil scientists Resources, the State Office Forester
on November 12, 1971. The study deand the State Office Recreational lineated safeguards which would be Planner. All were in agreement
necessary to reduce the environthat logging in the area would not mental impact of building roads and be in the best public interest be logging in the area. The study incause of the potential hazards of cluded a topographical map color erosion and stream pollution. keyed to soil associations. The soils
In addition, on October 22, 1971, in the contract area present severe to the Acting Director of the Geologi- moderate limitations on road concal Survey filed a report with the struction. Director, Bureau of Land Manage- These two reports, filed subsement, evaluating the probable ef
quent to the District Manager's deci. fects of timbering on slope stabil- sion, support his action in terminatity in the Centennial Mountains. ing the contract. The evaluation cited three ways in
Appellant filed a geological inwhich timber harvesting could be spection report with his statement expected to adversely affect the sta
of reasons. The report was compiled bility of the slopes in the Centennial
for the Dillon, Montana, Chamber Mountains:
of Commerce by William J. Mc(1) Road construction in unstable Mannis, geologist. Mr. McMannis areas could cause mass wasting.
spent one day investigating the con(2) Timber harvesting would result in
tract area. He concluded that of the higher soil moisture in the cut area which in turn would increase the possibility of
sixteen cutting areas six were loland slides.
cated in areas in which it would be (3) Decaying tree roots following tim- "risky" to construct roads. But he ber harvesting would reduce soil stability.
saw no geological reason why the The report also stated that logging Jones Creek area should not be in the Price Creek and Peet Creek logged as the Bean Creek and Price watersheds resulted in mass wasting Creek areas had been. and land sliding and that a sim- A memorandum from the State ilar phenomenon could be expected Director, Montana, to the Director, in Jones Creek if road construction Bureau of Land Management, dated and logging were initiated there. October 22, 1971, explained the McThe report recommended that
Mannis report. The State Director considerable thought be given to the felt that Departmental experience wisdom of logging any area in the in previous logging of the geologiCentennial Mountains because of cally similar areas of Jones and Peet
February 14, 1973 Creeks did not justify logging the tegrated use of the natural and social Jones Creek area.
sciences and the environmental design The information in the record
arts in planning and in decisionmaking
which may have an impact on man's concerning the environmental con
environment; siderations of logging the Jones Creek watershed weigh heavily in favor of the action taken by the
(C) includes in every recommendation
or report on proposals for legislation and District Manager. The record sup
other major Federal actions significantly ports the conclusion that logging affecting the quality of the human enthe contract area would be incon- vironment, a detailed statement by the sistent with national environmental responsible official on
(i) the environmental impact of the policy; would not be good forest
proposed action, management in light of increased
(ii) any adverse environmental effects environmental concern; would be
which cannot be avoided should the contrary to the goal of promoting proposal be implemented, efforts to prevent or eliminate de
(iii) alternatives to the proposed struction of the environment; and,
(iv) the relationship between local therefore, would not be in the best
short-term uses of man's environment and public interest.
the maintenance and enhancement of longThere is no validity to appellant's term productivity, and argument that the Government's (v) any irreversible and irretrievable action in terminating the contract
commitments of resources which would be
involved in the proposed action should it was invalid because the Govern
be implemented. ment did not conform to the requirements of the National Environmental Policy Act and the
Under part (2) (C) of section 102, guidelines of the Council on Envi- the compilation of an environmental ronmental Quality. We assume ap- impact statement is required only in pellant is referring to section 102
connection with legislation and of the Act, 42 U.S.C. $ 4332 (1970)
other major federal actions signifiwhich reads in part:
cantly affecting the quality of the
human environment. The section has $ 4332. Cooperation of agencies; re
been used most often by environports; availability of information; recommendations; international and nation
mental groups to force governal coordination of efforts.
mental agencies to consider the enThe Congress authorizes and directs vironmental impact of proposed that, to the fullest extent possible: (1)
agency action, e.g., Environmental the policies, regulations, and public laws of the United States shall be interpreted Defense Fund, Inc., v. Corps of Enand administered in accordance with the gineers, 325 F. Supp. 749 (D.C. policies set forth in this chapter, and Ark. 1971). The usual charge is that (2) all agencies of the Federal Govern
the agency has not taken adequate ment shall(A) utilize a systematic, interdisciplin
consideration of the impact of its ary approach which will insure the in
action on the environment.
The Council on Environmental timber purchaser, we cannot interQuality has set forth guidelines, 36 pret the National Environmental F.R. 7724, to be used in deciding Policy Act as requiring the filing of whether a proposed action requires an environmental impact statement an environmental statement- under the facts herein. In Environ
mental Defense Fund v, Hardin, 5. Actions included. The following criteria will be employed by agencies in
325 F. Supp. 1401, 1403 (D.C.D.C. deciding whether a proposed action 1971) it is recognized that the rerequires the preparation of an environ- quirements of section 102 part (2) mental statement:
(A) "should be judged in light of (a) “Actions” include but are not lim
the scope of the proposed program ited to: (i) Recommendations or favorable re
and the extent to which existing ports relating to legislation including that knowledge raises the possibility of for appropriations. ***
potential adverse environmental ef(ii) Projects and continuing activities: fects.” The same standard applies to directly undertaken by Federal agencies;
section 102 part (2) (C) under the supported in whole or in part through Federal contracts,
Council on Environmental Quality grants, subsidies, loans, or other forms of funding assist- guidelines, supra. An environmenance; involving a Federal lease, permit, tal impact statement is not required license, certificate or other entitlement unless it is reasonable to anticipate
à cumulatively significant adverse (iii) Policy, regulations, and proceduremaking.
impact on the environment from
Federal action. (b) The statutory clause "major Federal actions significantly affecting the Appellant has not alleged that quality of the human environment" is to cancellation of the contract would be construed by agencies with a view to
have any potential adverse effect on the overall, cumulative impact of the
the environment, therefore, it is not action proposed (and of further actions contemplated). * * *
necessary to determine whether the
cancellation would constitute In this case the Bureau of Land
major Federal action. Management realized, after the contract was entered into, that the cut
Appellant also argues that the
Government should amend the conting of timber in the contract area would not be in the best public in
tract, and he represents that he terest because of the potential detri
would agree to a deletion of cutting mental environmental consequences
units nos. 4, 5, 6, 14, 15, and 16, if of the action. As administrator of areas yielding equal volumes of timthe public lands, the Department is
ber could be substituted. It is not obligated to consider such environ- necessary that such proposals be dismental consequences.
cussed herein. Appellant's evidence While we realize that the unilat- seems to concede that six of the sixeral termination of a government
teen units should not be logged, and contract is a serious matter, affect- he conditionally proposes their deing vested contractual rights of a letion from the contract. 43 CFR
February 14, 1973
5401.0–6 provides that all timber Government, the argument is best sales “other than those specified in espoused in a suit for damages. $ 5402.0-6 shall be made only after Accordingly, pursuant to the auinviting competitive bids.” Under thority delegated to the Board of such facts it was neither arbitrary Land Appeals by the Secretary of nor an abuse of discretion for the
the Interior, 43 CFR 4.1, the GovDistrict Manager to terminate ernment's motion to dismiss is derather than substantially amend the nied and the decision appealed from contract. See Kerr McGee Corpora- is affirmed. tion et al., 6 IBLA 108 (1972). As to appellant's request for a
JOSEPH W. Goss, N ember. hearing, the only question before the
WE COXCUR: Board is whether there is a sound basis for the judgment that was ex- MARTIN RITVO, V/ember.
, ercised. Under 43 CFR 4.415 the ordering of a hearing is within the EDWARD W. STUEBING, Vember. discretion of the Board. There being no factual dispute as to the pre
ASA V. PERKES mise that six of the units should not be logged, and that deletion of and
9 IBLA 363 substitution for the six units would
Decided February 14, 1973 substantially change the contract, the Board concludes as a matter of Appeal from a decision of the Idaho law that the District Manager acted State Office, Bureau of Land Managewithin his discretion in rescinding ment, rejecting appellant's color of rather than substantially modifying title applications, I 4369 and I 4370. the contract. There being no facts
Reversed and remanded. alleged which would alter this conclusion, the request for a hearing Words and Phrases should be denied. Leo J. Kottas,
“Grantor". The word “grantor” as used Earl Lutzenhizer. 73 I.D. 123
is the Color of Title Act, 45 Stat. 1069 (1966); Harold E. and Alice L.
(1928), as amended, 43 U.S.C. $ 1068 Trowbridge, A-30954 (January 17, (1970), means a person by whom a grant 1969).
is made, grant being a generic term ap
plicable under the statute to all trans Appellant has further charged
fers of real property, including devises that the Government inflicted extra
and transfers by operation of law. ordinary harm by terminating the contract when it had knowledge that
Color or Claim of Title: Generally appellant was negotiating a sale of Cnder the Color of Title Act. 45 Stat. its assets. Such an argument does
1069 (1928), as amended, 43 C.S.C. $ 1068
(1970), an applicant's period of adverse not go to the merits of this appeal.
possession may commence at a time when If appellant is attempting to infer
title to the land is being held by a state a wrongful intent on the part of the
pursuant to the provisions of the Carey