Sierra Club v. Watt

608 F. Supp. 305

SIERRA CLUB, a nonprofit corporation; Wilderness Society, a nonprofit corporation; National Audubon Society, a nonprofit corporation; Natural Resources Defense Council, a nonprofit corporation; Environmental Defense Fund, a nonprofit corporation; National Wildlife Federation, a nonprofit corporation, Plaintiffs and State of California, Plaintiff in Intervention, v. James G. WATT, as Secretary of the Department of Interior; Robert F. Burford, as Director of the Bureau of Land Management, Defendants and Santa Fe Pacific Railroad Company, Mountain States Legal Foundation, County of Montezuma, Colorado, and Modesto and Turlock Irrigation Districts, Defendants in Intervention.

No. Civ. S-83-035 LKK.

United States District Court, E.D. California.

April 18, 1985.

As Amended April 24, 1985.

COPYRIGHT MATERIAL OMITTED

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Laurens H. Silver, Karin P. Sheldon, Johanna Wald, San Francisco, Robert Dreher, Hill & Barlow, Boston, Mass., for plaintiffs.

John K. Van de Kamp, Atty. Gen. of the State of Cal., Theodora Berger, Asst. Atty. Gen., Craig C. Thompson, Deputy Atty. Gen., Sacramento, Cal., for intervenor-plaintiffs People of the State of Cal., ex rel. Van de Kamp.

Donald B. Ayer, U.S. Atty., Gary B. Randall, Atty., Dept. of Justice, Washington, D.C., for Federal defendants.

William H. Mellor III, Constance E. Brooks, Steven D. Ellis, Denver, Colo., for defendant-intervenors.

John R. Duree, Jr., Michael J. Weinberger, Sacramento, Cal., White, Fine & Verville, Lee C. White, Peter S. Leyton, Washington, D.C., Damrell, Damrell & Nelson, Frank C. Damrell, Jr., Ann M. Veneman, Modesto, Cal., for defendants-in-intervention Modesto and Turlock Irrigation Districts.

Ann Straw Rieck, Ronald A. Lane, Chicago, Ill., Benjamin B. Salvaty, Clay M. Smith, Los Angeles, Cal., for defendant in intervention Santa Fe Pacific R. Co., Jerome C. Muys, Washington, D.C., of counsel.

Charles C. Dietrich, Sausalito, Cal., Mary Jane C. Due, Washington, D.C., for amicus curiae American Mining Congress.

OPINION AND ORDER

KARLTON, Chief Judge.

I BACKGROUND

A. Federal Land Policy And Management Act

In 1976, Congress enacted the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-1784 (Supp. 1983), to provide "the first comprehensive, statutory statement of purposes, goals and authority for the use and management of about 448 million acres¹ of federally-owned lands administered by the Secretary of Interior through the Bureau of Land Management." S.Rep. No. 583, 94th Cong., 1st sess. 24 (1975).² FLPMA reflected a major change in federal policy. Previously, the lands held by the Bureau of Land Management (BLM) (and its predecessor the General Land Office) were viewed as only temporarily within the custody of the United States and it was expected that their ultimate destiny was private ownership.³ Under FLPMA, however, BLM lands were to be held in permanent federal ownership unless, as a result of land use planning, the disposal of a particular parcel would serve the national interest. FLPMA § 102(a)(1), 43 U.S.C. § 1701(a)(1).⁴

In FLPMA Congress declared as a national policy that public lands held by the BLM were to be managed on the basis of multiple use and sustained yield unless otherwise specified by law, § 102(a)(7), 43 U.S.C. § 1701(a)(7). Nonetheless, Congress also declared as national policy that:

The public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use; ...

FLPMA § 102(a)(8), 43 U.S.C. § 1701(a)(8). Congress also required that regulations and plans for the protection of public land areas of critical concern be promptly developed, § 102(a)(11), 43 U.S.C. § 1701(a)(11).

As the first step in the process of implementing the new national policy the Secretary of Interior (hereinafter "the Secretary") was directed to prepare and maintain an inventory of all public lands and assess "their resource and other values." FLPMA § 201(a), 42 U.S.C. § 1711(a). As part of the process of inventory the Secretary was directed to review roadless areas of 5,000 acres or more and roadless islands of the public lands having wilderness characteristics as described in the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1974 & Supp. 1983), and to report to the President his recommendation as to the suitability or nonsuitability of each area for inclusion in the national Wilderness Preservation System. FLPMA § 603(a), 43 U.S.C. § 1782(a). "Public lands" required to be reviewed under section 603(a) are lands and interests in land owned by the United States and managed by the BLM, excepting Outer Continental Shelf and native trust lands. FLPMA § 103(e), 43 U.S.C. § 1702(e). This task was to be completed within fifteen years of FLPMA's enactment. FLPMA § 603(a), 43 U.S.C. § 1782(a). The President, in turn, is to make his recommendation to Congress as to the inclusion of these lands in the wilderness system within two years of the receipt of the Secretary's report. FLPMA § 603(b), 43 U.S.C. § 1782(b). Until Congress determines otherwise, the Secretary is to manage these lands

so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976: the date that FLPMA was enacted Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection.

FLPMA § 603(c), 43 U.S.C. § 1782(c) (emphasis in original). Section 603(c) provides that once Congress has formerly designated an area for inclusion in the Wilderness Preservation System, the management provisions of the Wilderness Act apply. FLPMA § 603(c), 43 U.S.C. § 1782(c).⁵

B. Implementation of the Section 603 Wilderness Review

In order to carry out the wilderness review provisions of section 603(a) and other sections of the Act, including the inventory preparation requirement of section 201, the former Secretary of Interior, Cecil Andrus, established a wilderness review program consisting of three phases: inventory, study, and reporting. During the inventory phase, those roadless areas of the public lands which have wilderness characteristics were identified as "wilderness study areas" (WSA's). The procedure for determining whether an area of the public lands met WSA status was provided in the "Wilderness Inventory Handbook" (WIH), a statement of policy, direction, procedures and guidance for the wilderness review program published by the BLM on September 27, 1978. The WIH provided that, with certain exceptions, the wilderness inventory be conducted on all public lands administered by the BLM.⁶ The WIH prescribes that in choosing areas for section 603 WSA status the factors to be used are:

1. Size. At least 5,000 contiguous roadless acres of public land.

2. Naturalness. The imprint of man's work must be substantially unnoticeable.

3. Either:

a. An outstanding opportunity for solitude, or

b. An outstanding opportunity for a primitive and unconfined type of recreation.

To qualify for wilderness study identification an area of public land must be shown to meet both factors 2 and 3. An island may be of any size.

WIH at 6 (emphasis in original).

In addition, the WIH directed that other areas which had wilderness characteristics as defined in (2) and (3) above, but which contained fewer than 5,000 acres, were still eligible for WSA identification if they were either:

1. Contiguous with land managed by another agency which has been formally determined to have wilderness or potential wilderness values, or

2. Contiguous with an area of less than 5,000 acres of other Federal lands administered by an agency with authority to study and preserve wilderness lands, and the combined total is 5,000 acres or more, or

3. Subject to strong public support for such identification and it is clearly and obviously of sufficient size as to make practicable its preservation and use in an unimpaired condition, and of a size suitable for wilderness management.

WIH at 6.

In further implementation of the statute, the BLM published on December 12, 1979, an "Interim Management Policy and Guidelines for Lands Under Wilderness Review" (IMP) which set forth the guidelines under which the BLM would manage the lands subject to wilderness review, but for which the BLM wilderness inventory process had not yet been completed and lands which the BLM has determined to have wilderness characteristics. IMP at 5. The interim management policy also applies to WSA's during the time the area is under wilderness review and until Congress acts. Id. The IMP required that lands identified as having wilderness characteristics be managed so as not to impair their suitability for preservation as wilderness. With respect to WSA's over 5,000 acres, this requirement is derived from section 603(c) of FLPMA, 43 U.S.C. § 1782(c). IMP at 6. Under the IMP, lands with wilderness characteristics but less than 5,000 acres in size were to be managed under a modified nonimpairment standard pursuant to section 302(b), 43 U.S.C. § 1732(b). IMP at 10.⁷ The goals of management under the nonimpairment standard are: (1) to ensure that any area that now satisfies the wilderness definition in section 2(c) of the Wilderness Act, 16 U.S.C. § 1131(c),⁸ will satisfy that definition both when the Secretary sends his recommendation to the President and thereafter until the Congress acts, and (2) to...