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(ON RECONSIDERATION)

August 3, 1973

human environment.”.8 The state proposal to implement such action. ment is to be provided as part of It has been held that the statement a recommendation or report on a is not to be merely advisory in

nature, but that the environmental 8 "A 'major federal action' is one that requires substantial planning, time, resources or expenditure. Clearly the NEPA contemplates Engineers, 331 F. Supp. 925 (D.D.C. 1971). some federal actions which are minor, or have Construction of the Cross-Florida Barge so little environmental impact, as to fall out- Canal: side its scope.

Environmental Defense Fund v. Corps of Engineer8, 324 F. Supp. 878 (D.D.C. 1971).

Construction of dam project : "A federal action 'significantly affecting the

Environmental Defense Fund v. TVÅ, 468 quality of the human environment is one that

F.2d 1164 (6th Cir. 1972); Conservation has an important or meaningful effect, directly

Council of North Carolina v. Froehlke, 340 F. or indirectly, upon any of the many facets of

Supp. 222 (M.D.N.C. 1972). man's environment. Natural Resources Defense

Channelization of river bed : Council, Inc. v. Grant, 341 F. Supp. [356, 367

Natural Resources Defense Council V. (E.D. N.C. 1972)). The phrase must be broadly

Grant, 341 F. Supp. 356 (E.D.N.C. 1972); construed to give effect to the purposes of the

Akers v. Resor, 339 F. Supp. 1375 (W.D. Tenn, NEPA. A ripple begun in one small corner of

1972). an environment may become a wave threaten

Dredging of New Haven, Conn., harbor and ing the quality of the total environment.

dumping of dredged materials in Long Island Although the thread may appear fragile, if

Sound: the actual environmental impact is significant, it must be considered. *

*” Citizens Orga

Sierra Club v. Mason, 351 F. Supp. 419 (D.

Conn. 1972). nized To Defend the Environment, Inc. v.

Construction of coal-fired electric generating Volpe, 353 F. Supp. 520, 540 (D.C.S.D. Ohio

plants : 1972).

Jicarilla Apache Tribe of Indian8 v. Morton, The following are examples of "major Fed.

471 F.2d 1275 (9th Cir. 1973). eral actions” for which environmental impact

Nuclear test on Amchitka Island, Alaska : statements have been required :

Committee, Inc. for Nuclear Responsibility v. Decisions of the Secretary of Transportation

Seaborg, 463 F.2d 783 (D.C. Cir. 1971). involving federal-aid highway projects :

Simulated nuclear test on atoll in Pacific Monroe County Conservation Council' v.

Trust Territories : Volpe, 472 F.2d 693 (2d Cir. 1972); Scherr v.

People of Enewetak v. Laird, 353 F. Supp. Volpe, 466 F.2d 1027 (7th Cir. 1972) ; Brooks

811 (D. Hawaii 1973). y. Volpe, 460 F.2d 1193 (9th Cir. 1972) ;

Federally financed downtown urban renewal Arlington Coalition on Transportation V.

project: Volpe, 458 F.2d 1323 (4th Cir.), cert. denied,

Businessmen Affected by the Yearly Action 409 U.S. 1000 (1972); Lathan v. Volpe, 455

Plans, Inc. (BASYAP) v. D.C. City Council, F.2d 1111 (9th Cir. 1972); Named Individual

339 F. Supp. 793 (D.D.C. 1972). Members of the San Antonio Conservation

Federally funded waterfront rehabilitation Soc'y y. Teras Highway Dep't, 446 F.2d 1013

project involving destruction of buildings of (5th Cir. 1971); Stop H-3 A88'n v. Volpe, 353

alleged historical value: F. Supp. 14 (D. Hawaii 1972) ; Keith v. Volpe,

Boston Waterfront Residents Ass'n 352 F. Supp. 1324 (C.D. Cal. 1972); Daly v.

Romney, 343 F. Supp. 89 (D. Mass. 1972). Volpe, 350 F. Supp. 252 (W.D. Wash. 1972);

Federally funded state prison reception and Conservation Soc'y of Southern Vermont v.

medical center : Volpe, 343 F. Supp. 761 (D. Vt. 1972);

Ely v. Velde, 451 F. 2d 1130 (4th Cir. 1971). Morningside-Lenox Park A88'n v. Volpe, 334 F.

Federal loan for construction of 16-story, Supp. 132 (N.D. Ga. 1971); Nolop v. Volpe,

221-unit apartment building: 333 F. Supp. 1364 (S.D.S.D. 1971); Harrisburg Coalition Against Ruining the Environ.

Goose Hollow Foothills League v. Romney, ment v. Volpe, 330 F. Supp. 918 (M.D. Pa.

334 F. Supp. 877 (D. Ore. 1971). 1971).

Approval by National Capital Planning Com. Construction of the Trinity River Basin mission of private redevelopment project in Project:

District of Columbia : Sierra Club v. Froehlke, No. 71-H-983 (S.D. McLean Gardens v. National Capital Plan. Tex., filed February 16, 1973) [5 ERC 1033]. ning Comm'n, No. 2042-72 (D.D.C., filed

Construction of the Tennessee-Tombigbee October 21, 1972) (4 ERC 1708). Waterway :

License to construct nuclear power facility : Environmental Defense Fund v. Corps of Calvert Cliffs' Coordinating Committee, Inc.

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considerations set forth therein natives to the proposed action." » must be a factor in the agency's de- The plain meaning of the statutory cision whether or in what form to language connotes an action procarry out the proposed action. posed to be taken by a federal Calvert Cliffs' Coordinating Com- agency which is discretionary in mittee, Inc. v. AEC, 449 F.2d 1109, character and to which there may 1117–18 (D.C. Cir. 1971). The state

exist a viable alternative. It is diffiment must discuss, inter alia, "alter- cult to perceive how the possible

issuance of patent in the case before V. AEC, 449 F.2d 1109 (D.C. Cir. 1971) ; Isaak Walton League of America v. Schlesinger, 337 us can fall within the designated F. Supp. 287 (D.D.C. 1971). License to construct pumped storage elec

category. The action taken to pertric power plant :

fect a claim and apply for patent, Scenic Hudson Preservation Conference v.

although authorized and prescribed FPC, 453 F.2d 463 (2d Cir. 1971), cert. denied, 407 U.S. 926 (1972).

by law, is in no sense a federal License to construct high-voltage electric action. The location of the claim, power transmission line :

Greene County Planning Board V. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S.

involved was free to exercise discretion. After 849 (1972).

having accorded full weight to environmental Permit under Rivers and Harbors Act to

factors the agency was empowered to render construct water intake and discharge facility :

the final administrative decision on, e.g., the Citizens for Clean Air, Inc. v. Corps of

route, design, or method of construction of a Engineers, 349 F. Supp. 696 (S.D.N.Y. 1972).

highway or a waterways project, or portion Permit under Refuse Act to discharge refuse

thereof, the scope and design of a federally or treated waste water into navigable body

funded rehabilitation project, or whether or

not or under what conditions to grant a of water : Sierra Club v. Sargent, Civil No. 249-71C2

license, permit, loan, or lease. In no case which

we have been able to find has court char(W.D. Wash., filed March 16, 1972) [3 ERC 1905); Kalur v. Resor, 335 F. Supp. 1 (D.D.C.

acterized the performance of a ministerial duty 1971).

as a “major Federal action (8)." Permission by Interstate Commerce Commis- In Natural Resources Defense Council, Inc. sion to abandon short-line freight railroad v. Morton, supra, note 8, a case involving the serving New York Harbor traffic:

discretionary authority of the Secretary of the City of New York v. United States, 337 F. Interior to award offshore oil leases, it was Supp. 150 (E.D.N.Y. 1972).

held that the agency must consider all alterFederally imposed plan for control of emis- natives reasonably available, not necessarily sions of sulphur oxides from copper smelter : limited to those measures which it is em

Anaconda Co. V. Ruckelshau8, 352 F. Supp. powered to adopt. The court pointed out: 697 (D. Colo. 1972).

“The mere fact that an alternative requires Termination by Secretary of the Interior of legislative implementation does not automaticcontracts for extraction and sale of bellum ally establish it as beyond the domain of what awarded under National Helium Act:

is required for discussion, particularly since National Helium Corp. V. Morton, 455 F.2d NEPA was intended to provide a basis for 650 (10th Cir. 1971).

consideration and choice by the decisionAward by Secretary of the Interior of off. makers in the legislative as well as the exeshore oil leases to 80 tracts of submerged land, cutive branch, But the need for an overhaul primarily off eastern Louisiana :

of basic legislation certainly bears on the Natural Resources Defense Council v. Mor- requirements of the Act. We do not suppose ton, 458 F.2d 827 (D.C. Cir. 1972).

Congress intended an agency to devote itself Approval by Secretary of the Interior of to extended discussion of the environmental lease by Indian pueblo of lands on Indian impact of alternatives so remote from reality reservation held in trust by the United States : as to depend on, say, the repeal of the anti

Davis v. Morton, 469 F.2d 593 (10th Cir. trust laws." Id. at 837. 1972), rev’g, 335 F. Supp. 1258 (D.N.M. 1971). To the ministerial act of issuance of a patent

A common element which distinguishes the to a valid mining claim there exists no alter"major Federal actions" described above from native. Even a complete overhaul of the Genthe issuance of a patent to a valid mining eral Mining Act of 1872 would have no effect claim is that in each instance cited there on claims located before the effective date of existed an area in which the federal agency the new legislation.

V.

(ON RECONSIDERATION)

August 3, 1973 the exploration leading to discov- consistent position of the courts and ery, the performance of the annual this Department that because a assessment work, and the compli- mining claim is an interest in and a ance with the procedural provisions claim to property, it may not be of the statute are all performed by declared invalid except in accordthe claimant. Once the statutory re- ance with due process. Cameron v. quirements have been met, the Sec- United States, 252 U.S. 450 (1920); retary has no alternative but to issue United States v. O'Leary, 63 I.D. patent.

341 (1956). Due process means more While the decision-making proc- than notice and opportunity for ess in determining the existence of a hearing. It requires the application discovery involves an exercise of of fixed, objective rules to facts. judgment, it is not discretionary in See Wilbur v. Krushnic, supra. In the ordinary sense. Wilbur

.

that case the Secretary was ordered Krushnic, supra, pp. 306, 318–19. by a writ of mandamus to apply the Discretionary authority implies the pertinent statute as interpreted by absence of fixed rules. 10 Such

the Court to the application for authority is vested in the Sec

in the Sec- patent.18 retary in granting oil or mineral It has been argued herein that leases 11 and in issuing patents un- even assuming a patent must issue, der certain statutes.12 In these cases, the filing of an environmental imwhich do not involve property pact statement by the Department rights, the Secretary may weigh the of the Interior is nevertheless reeffect of leases or patents against quired by NEPA as a condition the public interest and grant or deny precedent to such issuance for inforthem accordingly, even though the mational purposes. We cannot acapplications meet all other statutory cept this contention. NEPA intends and regulatory requirements. that Congress and the general pub

The Secretary has no such discre- lic be kept informed of major fedtionary authority in determining eral actions and the effects thereof. whether a discovery exists and a As we have already stated, however, patent should issue. It has been the the issuance of a law is not a major

a

federal action within the meaning of 10 See cases collected at 124 Words and Phrases, 327-355, App. 52.

NEPA. Moreover, to condition the 11 E.9., Udall v. Tallman, 380 U.S. 1 (1965) ; full enjoyment of an existing right Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965), cert. denied, 383 U.S. 912 (1966) ; upon the filing of an informational Haley V. Seaton, 281 F.2d 620 (D.C. Cir. 1960) ; some statutory grants of secretarial 13 While the Court's interpretation of the discretion are at 30 U.S.C. 88 189, 201, 209, statute in Krushnic was modified in Hickel v. 211, 226.

Oil Shale Corp., 400 U.S. 48 (1970), the 12 E.g., 43 U.S.C. 8 1171 ; Lewis v. Udall, proposition for which Krushnic is cited herein, 374 F.2d 180 (9th Cir. 1967); Ferry v. Udall, namely, the limited latitude of the Secretary 336 F.2d 706 (9th Cir. 1964); Willcos son v. in applying the mining laws, subject to court United States, 313 F.2d 884 (D.C. Cir. 1963); order, was not before the Court in Hickel and, Jack H, Stockstill, 1 IBLA 278 (1971). hence, not affected by the latter.

statement by the executive branch it might be argued that delay in isof the federal government, the ade- suance of a patent would cause the quacy of which statement is subject owner of a valid claim no real into attack by third parties and ulti- jury. But this argument illustrates mate determination by the courts,14 the fatal defect in the proposition would seriously impair that right. that NEPA requires the filing of an Such proceedings might take years, environmental impact statement and the mining claimant, whose before patent can issue. For the real right to full enjoyment is being en- environmental issue is not legal title joined, would be almost helpless to to the claim, but the impact of the hasten the process.

mining operation upon the environNowhere in NEPA or its legisla ment. To the extent that the mining tive history does it appear that Con- laws give to individuals the right gress intended such an effect upon to enter the public domain, to locate the rights of private individuals. claims thereon, to discover minerals Where Congress has amended the therein, and to extract and remove mining laws by excluding certain those minerals therefrom, all withminerals from location, it has con- out prior approval of the United sistently recognized the need to pre- States, the development of a minserve property rights by excepting ing claim cannot be tortured into valid existing claims from the op- "Federal action," major, minor or eration thereof.15 We do not believe otherwise. that it intended to do otherwise

That the Secretary is not required when enacting the National Envi- to file an environmental impact ronmental Policy Act.

statement as a condition precedent As noted above, a claimant need

to issuance of patent does not forenot obtain full legal title to the land close consideration of environin order to retain the right to ex- mental costs in the resolution of the tract and dispose of the locatable issue before us: whether each of the minerals until they are exhaused. claims is in fact valid by reason of Wilbur y. Krushnic, supra; Union the discovery of a valuable mineral City Oil Co. v. Smith, supra; United deposit within its limits. To the exStates v. Carlile, supra. From this tent federal, state, or local law re

quires that anti-pollution devices or 14 9.9., Natural Resources Defense Council v.

other environmental safeguards be Morton, 458 F.2d 827 (D.C. Cir. 1972); and see other cases cited above at note 8. According installed and maintained as part of to Timothy Atkeson, General Counsel, Council

the processes of extraction and beneon Environmental Quality, fifty governmental actions are presently enjoined pending com- ficiation of the minerals contained pliance with NEPA. See his statement before

in the claims, the expenditures made the Subcommittee on the Environment of the Senate Committee on Commerce on April 5, necessary by such protective meas1973, at 8.

ures may properly be considered in 15 E.I., $ 37 of the Mineral Leasing Act of 1920, 41 Stat. 451, 30 U.S.C. $ 193 (1970) ; connection with the issue of market. 87 of the Common Varieties Act of 1955, 69 Stat. 372, 30 U.S.C. $ 615 (1970).

ability, as part of the costs in deter

(ON RECONSIDERATION)

August 3, 1973 mining whether appellant has a rea- volved possessed a positive or sonable prospect of success in greater value for the purposes for developing a valuable mine within which the award was made and no the claims.

practical or commercial value for As regards the second point re- the purposes for which patent was lating to whether a comparison of denied.Id. at 252. The Department values prior to the issuance of a then expressly held that: patent is required, the applicable

if a mineral claimant is able to laws recognize no such test. In early show that the land contains mineral of cases involving the application of such quantity and value as to warrant a the mining laws, the Department

prudent man in the expenditure of his

time and money thereupon, in the reasonwas faced with numerous private

able expectation of success in developing contests between agricultural entry

a paying mine, such lands are disposable men and mineral claimants as to only under the mineral laws, notwithwhether the land in issue was standing the fact that they may possess mineral or non-mineral in charac

a possible or probable greater value for

agriculture or other purposes. ter. See, e.g., Castle v. Womble, 19 L.D. 455 (1894); Magruder v. Ore

Id. at 254. Cited with approval in gon and California R.R. Co., 28 United States v. Langmade and L.D. 174 (1899). These cases focused Mistler, 52 L.D. 700, 705 (1929). on the comparative value of the A useful comparison can be made lands involved for mining as op- between the Act of May 10, 1872, 17 posed to agricultural purposes. They Stat. 91, as amended, 30 U.S.C. $ 22 seemed to apply precisely the bal- (1970), under which the claims ancing approach advocated by were located in the instant case, and amici curiae. In Cataract Gold Min- the Act of August 4, 1892, 27 Stat. ing Co., 43 L.D. 248 (1914), how- 348, 30 U.S.C. $ 161 (1970), relating

, ever, the Department was con- to building stone. Section 1 of the fronted by a case within which it Act of 1872, as amended, provides : was alleged that regardless of

Except as otherwise provided, all valwhether minerals existed in such

uable mineral deposits in lands belongquantity and of such quality as ing to the United States, both surveyed would meet the prudent man rule of and unsurveyed, shall be free and open to

exploration and purchase, and the lands Castle v. Womble, supra, the land

in which they are found to occupation was still more valuable for the de

and purchase, by citizens of the United velopment of electrical power. The

States * * * [Italics added] Department examined the law and

30 U.S.C. $ 22. noted that while many earlier decisions had apparently utilized a bal- Section 1 of the Act of 1892 proancing of values approach, those

vides: decisions had actually been prem

Any person authorized to enter lands ised on the belief “that the land in- under the mining laws of the United

521-342-73

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