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(ON RECONSIDERATION) August 3, 1973

human environment." The statement is to be provided as part of a recommendation or report on a

9 "A major federal action' is one that requires substantial planning, time, resources or expenditure. Clearly the NEPA contemplates some federal actions which are minor, or have so little environmental impact, as to fall outside its scope.

"A federal action 'significantly affecting the quality of the human environment' is one that has an important or meaningful effect, directly or indirectly, upon any of the many facets of man's environment. Natural Resources Defense Council, Inc. v. Grant, 341 F. Supp. [356, 367 (E.D. N.C. 1972)]. The phrase must be broadly construed to give effect to the purposes of the NEPA. A ripple begun in one small corner of an environment may become a wave threatening the quality of the total environment. Although the thread may appear fragile, if the actual environmental impact is significant, it must be considered.***" Citizens Organized To Defend the Environment, Inc. v. Volpe, 353 F. Supp. 520, 540 (D.C.S.D. Ohio 1972).

The following are examples of "major Federal actions" for which environmental impact statements have been required:

Decisions of the Secretary of Transportation involving federal-aid highway projects:

Monroe County Conservation Council v. Volpe, 472 F.2d 693 (2d Cir. 1972); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972); Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972); Arlington Coalition on Transportation V. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000 (1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1972); Named Individual Members of the San Antonio Conservation Soc'y v. Texas Highway Dep't, 446 F.2d 1013 (5th Cir. 1971); Stop H-3 Ass'n v. Volpe, 353 F. Supp. 14 (D. Hawaii 1972); Keith v. Volpe, 352 F. Supp. 1324 (C.D. Cal. 1972); Daly v. Volpe, 350 F. Supp. 252 (W.D. Wash. 1972); Conservation Soc'y of Southern Vermont v. Volpe, 343 F. Supp. 761 (D. Vt. 1972); Morningside-Lenox Park Ass'n v. Volpe, 334 F. Supp. 132 (N.D. Ga. 1971); Nolop v. Volpe, 333 F. Supp. 1364 (S.D.S.D. 1971); Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F. Supp. 918 (M.D. Pa. 1971).

Construction of the Trinity River Basin Project :

Sierra Club v. Froehlke, No. 71-H-983 (S.D. Tex., filed February 16, 1973) [5 ERC 1033]. Construction of the Tennessee-Tombigbee Waterway:

Environmental Defense Fund v. Corps of

proposal to implement such action. It has been held that the statement is not to be merely advisory in nature, but that the environmental

Engineers, 331 F. Supp. 925 (D.D.C. 1971). Construction of the Cross-Florida Barge

Canal:

Environmental Defense Fund v. Corps of Engineers, 324 F. Supp. 878 (D.D.C. 1971). Construction of dam project :

Environmental Defense Fund v. TVA, 468 F.2d 1164 (6th Cir. 1972); Conservation Council of North Carolina v. Froehlke, 340 F. Supp. 222 (M.D.N.C. 1972).

Channelization of river bed:

Natural Resources Defense Council V. Grant, 341 F. Supp. 356 (E.D.N.C. 1972); Akers v. Resor, 339 F. Supp. 1375 (W.D. Tenn. 1972).

Dredging of New Haven, Conn., harbor and dumping of dredged materials in Long Island Sound:

Sierra Club v. Mason, 351 F. Supp. 419 (D. Conn. 1972).

Construction of coal-fired electric generating

plants:

[blocks in formation]

People of Enewetak v. Laird, 353 F. Supp. 811 (D. Hawaii 1973).

Federally financed downtown urban renewal project:

Businessmen Affected by the Yearly Action Plans, Inc. (BASYAP) v. D.C. City Council, 339 F. Supp. 793 (D.D.C. 1972).

Federally funded waterfront rehabilitation project involving destruction of buildings of alleged historical value:

Boston Waterfront Residents Ass'n V. Romney, 343 F. Supp. 89 (D. Mass. 1972). Federally funded state prison reception and medical center:

Ely v. Velde, 451 F. 2d 1130 (4th Cir. 1971). Federal loan for construction of 16-story, 221-unit apartment building :

Goose Hollow Foothills League v. Romney, 334 F. Supp. 877 (D. Ore. 1971).

Approval by National Capital Planning Commission of private redevelopment project in District of Columbia:

McLean Gardens v. National Capital Planning Comm'n, No. 2042-72 (D.D.C., filed October 21, 1972) [4 ERC 1708].

License to construct nuclear power facility: Calvert Cliffs' Coordinating Committee, Inc.

considerations set forth therein must be a factor in the agency's decision whether or in what form to carry out the proposed action. Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1117-18 (D.C. Cir. 1971). The statement must discuss, inter alia, "alter

v. AEC, 449 F.2d 1109 (D.C. Cir. 1971); Isaak Walton League of America v. Schlesinger, 337 F. Supp. 287 (D.D.C. 1971).

License to construct pumped storage electric power plant:

Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (2d Cir. 1971), cert. denied, 407 U.S. 926 (1972).

License to construct high-voltage electric power transmission line:

Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972).

Permit under Rivers and Harbors Act to construct water intake and discharge facility: Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F. Supp. 696 (S.D.N.Y. 1972).

Permit under Refuse Act to discharge refuse or treated waste water into navigable body of water:

Sierra Club v. Sargent, Civil No. 249-71C2 (W.D. Wash., filed March 16, 1972) [3 ERC 1905]; Kalur v. Resor, 335 F. Supp. 1 (D.D.C. 1971).

Permission by Interstate Commerce Commission to abandon short-line freight railroad serving New York Harbor traffic:

City of New York v. United States, 337 F. Supp. 150 (E.D.N.Y. 1972).

Federally imposed plan for control of emissions of sulphur oxides from copper smelter: Anaconda Co. v. Ruckelshaus, 352 F. Supp. 697 (D. Colo. 1972).

Termination by Secretary of the Interior of contracts for extraction and sale of helium awarded under National Helium Act:

National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971).

Award by Secretary of the Interior of offshore oil leases to 80 tracts of submerged land, primarily off eastern Louisiana :

Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972).

Approval by Secretary of the Interior of lease by Indian pueblo of lands on Indian reservation held in trust by the United States:

Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), rev'g, 335 F. Supp. 1258 (D.N.M. 1971).

A common element which distinguishes the "major Federal actions" described above from the issuance of a patent to a valid mining claim is that in each instance cited there existed an area in which the federal agency

natives to the proposed action."" The plain meaning of the statutory language connotes an action proposed to be taken by a federal agency which is discretionary in character and to which there may exist a viable alternative. It is difficult to perceive how the possible issuance of patent in the case before us can fall within the designated category. The action taken to perfect a claim and apply for patent, although authorized and prescribed by law, is in no sense a federal action. The location of the claim,

involved was free to exercise discretion. After having accorded full weight to environmental factors the agency was empowered to render the final administrative decision on, e.g., the route, design, or method of construction of a highway or a waterways project, or portion thereof, the scope and design of a federally funded rehabilitation project, or whether or not or under what conditions to grant a license, permit, loan, or lease. In no case which we have been able to find has a court characterized the performance of a ministerial duty as a "major Federal action (s)."

In Natural Resources Defense Council, Inc. v. Morton, supra, note 8, a case involving the discretionary authority of the Secretary of the Interior to award offshore oil leases, it was held that the agency must consider all alternatives reasonably available, not necessarily limited to those measures which it is empowered to adopt. The court pointed out:

"The mere fact that an alternative requires legislative implementation does not automatically establish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decisionmakers in the legislative as well as the executive branch. But the need for an overhaul of basic legislation certainly bears on the requirements of the Act. We do not suppose Congress intended an agency to devote itself to extended discussion of the environmental impact of alternatives so remote from reality as to depend on, say, the repeal of the antitrust laws." Id. at 837.

To the ministerial act of issuance of a patent to a valid mining claim there exists no alternative. Even a complete overhaul of the General Mining Act of 1872 would have no effect on claims located before the effective date of the new legislation.

(ON RECONSIDERATION)
August 3, 1973

the exploration leading to discov-
ery, the performance of the annual
assessment work, and the compli-
ance with the procedural provisions
of the statute are all performed by
the claimant. Once the statutory re-
quirements have been met, the Sec-
retary has no alternative but to issue
patent.

While the decision-making process in determining the existence of a discovery involves an exercise of judgment, it is not discretionary in the ordinary sense. Wilbur V. Krushnic, supra, pp. 306, 318-19. Discretionary authority implies the absence of fixed rules.10 Such authority is vested in the Secretary in granting oil or mineral leases 11 and in issuing patents under certain statutes.12 In these cases, which do not involve property rights, the Secretary may weigh the effect of leases or patents against the public interest and grant or deny them accordingly, even though the applications meet all other statutory and regulatory requirements.

The Secretary has no such discretionary authority in determining whether a discovery exists and a patent should issue. It has been the

10 See cases collected at 12A Words and Phrases, 327-355, App. 52.

11 E.g., Udall v. Tallman, 380 U.S. 1 (1965); Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965), cert. denied, 383 U.S. 912 (1966); Haley v. Seaton, 281 F.2d 620 (D.C. Cir. 1960); some statutory grants of secretarial discretion are at 30 U.S.C. §§ 189, 201, 209, 211, 226.

12 E.g., 43 U.S.C. § 1171; Lewis v. Udall, 374 F.2d 180 (9th Cir. 1967); Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964); Willcoxson v. United States, 313 F.2d 884 (D.C. Cir. 1963); Jack H. Stockstill, 1 IBLA 278 (1971).

consistent position of the courts and this Department that because a mining claim is an interest in and a claim to property, it may not be declared invalid except in accordance with due process. Cameron v. United States, 252 U.S. 450 (1920); United States v. O'Leary, 63 I.D. 341 (1956). Due process means more than notice and opportunity for hearing. It requires the application of fixed, objective rules to facts. See Wilbur v. Krushnic, supra. In that case the Secretary was ordered by a writ of mandamus to apply the pertinent statute as interpreted by the Court to the application for patent.13

It has been argued herein that even assuming a patent must issue, the filing of an environmental impact statement by the Department of the Interior is nevertheless required by NEPA as a condition precedent to such issuance for informational purposes. We cannot accept this contention. NEPA intends that Congress and the general public be kept informed of major federal actions and the effects thereof. As we have already stated, however, the issuance of a law is not a major federal action within the meaning of NEPA. Moreover, to condition the full enjoyment of an existing right upon the filing of an informational

13 While the Court's interpretation of the statute in Krushnic was modified in Hickel v. Oil Shale Corp., 400 U.S. 48 (1970), the proposition for which Krushnic is cited herein, namely, the limited latitude of the Secretary in applying the mining laws, subject to court order, was not before the Court in Hickel and, hence, not affected by the latter.

statement by the executive branch of the federal government, the adequacy of which statement is subject to attack by third parties and ultimate determination by the courts, would seriously impair that right. Such proceedings might take years, and the mining claimant, whose right to full enjoyment is being enjoined, would be almost helpless to hasten the process.

Nowhere in NEPA or its legislative history does it appear that Congress intended such an effect upon the rights of private individuals. Where Congress has amended the mining laws by excluding certain minerals from location, it has consistently recognized the need to preserve property rights by excepting valid existing claims from the operation thereof.15 We do not believe that it intended to do otherwise when enacting the National Environmental Policy Act.

As noted above, a claimant need not obtain full legal title to the land in order to retain the right to extract and dispose of the locatable minerals until they are exhaused. Wilbur v. Krushnic, supra; Union City Oil Co. v. Smith, supra; United States v. Carlile, supra. From this

14 E.g., Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972); and see other cases cited above at note 8. According to Timothy Atkeson, General Counsel, Council on Environmental Quality, fifty governmental actions are presently enjoined pending compliance with NEPA. See his statement before the Subcommittee on the Environment of the Senate Committee on Commerce on April 5, 1973, at 8.

15 E.g., 37 of the Mineral Leasing Act of 1920, 41 Stat. 451, 30 U.S.C. § 193 (1970); § 7 of the Common Varieties Act of 1955, 69 Stat. 372, 30 U.S.C. § 615 (1970).

it might be argued that delay in issuance of a patent would cause the owner of a valid claim no real injury. But this argument illustrates the fatal defect in the proposition that NEPA requires the filing of an environmental impact statement before patent can issue. For the real environmental issue is not legal title to the claim, but the impact of the mining operation upon the environment. To the extent that the mining laws give to individuals the right to enter the public domain, to locate claims thereon, to discover minerals therein, and to extract and remove those minerals therefrom, all without prior approval of the United States, the development of a mining claim cannot be tortured into "Federal action," major, minor or otherwise.

That the Secretary is not required to file an environmental impact statement as a condition precedent to issuance of patent does not foreclose consideration of environmental costs in the resolution of the issue before us: whether each of the

claims is in fact valid by reason of the discovery of a valuable mineral deposit within its limits. To the extent federal, state, or local law requires that anti-pollution devices or other environmental safeguards be installed and maintained as part of the processes of extraction and beneficiation of the minerals contained in the claims, the expenditures made necessary by such protective measures may properly be considered in connection with the issue of marketability, as part of the costs in deter

(ON RECONSIDERATION)
August 3, 1973

mining whether appellant has a rea-
sonable prospect of success in
developing a valuable mine within
the claims.

As regards the second point relating to whether a comparison of values prior to the issuance of a patent is required, the applicable laws recognize no such test. In early cases involving the application of the mining laws, the Department was faced with numerous private contests between agricultural entrymen and mineral claimants as to whether the land in issue was mineral or non-mineral in character. See, e.g., Castle v. Womble, 19 L.D. 455 (1894); Magruder v. Oregon and California R.R. Co., 28 L.D. 174 (1899). These cases focused on the comparative value of the lands involved for mining as opposed to agricultural purposes. They seemed to apply precisely the balancing approach advocated by amici curiae. In Cataract Gold Mining Co., 43 L.D. 248 (1914), however, the Department was confronted by a case within which it was alleged that regardless of whether minerals existed in such quantity and of such quality as would meet the prudent man rule of Castle v. Womble, supra, the land was still more valuable for the development of electrical power. The Department examined the law and noted that while many earlier decisions had apparently utilized a balancing of values approach, those decisions had actually been premised on the belief "that the land in

521-342-73- 2

volved possessed a positive or greater value for the purposes for which the award was made and no practical or commercial value for the purposes for which patent was denied." Id. at 252. The Department then expressly held that:

if a mineral claimant is able to show that the land contains mineral of such quantity and value as to warrant a prudent man in the expenditure of his time and money thereupon, in the reasonable expectation of success in developing a paying mine, such lands are disposable only under the mineral laws, notwithstanding the fact that they may possess a possible or probable greater value for agriculture or other purposes.

Id. at 254. Cited with approval in
United States v. Langmade and
Mistler, 52 L.D. 700, 705 (1929).

A useful comparison can be made between the Act of May 10, 1872, 17 Stat. 91, as amended, 30 U.S.C. § 22 (1970), under which the claims. were located in the instant case, and the Act of August 4, 1892, 27 Stat. 348, 30 U.S.C. § 161 (1970), relating to building stone. Section 1 of the Act of 1872, as amended, provides:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States * * * [Italics added]

30 U.S.C. § 22.

Section 1 of the Act of 1892 provides:

Any person authorized to enter lands under the mining laws of the United

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