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Sierra Club v. Babbitt

 

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Sierra Club brought suit challenging the construction of a logging road crossing U.S. Bureau of Land Management (BLM) land on Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) grounds. The road building was based on a 1962 reciprocal right-of-way agreement between the Secretary of Interior and Woolley Logging Company, a private land owner who must cross federal land to reach its property. The right-of-way allowed Woolley to use BLM lands and to construct new roads to access its property. The agreement was made prior to the enactment of both NEPA and the ESA, and it listed only three specific instances when BLM could object to the construction of new roads.[1] In 1989, Woolley assigned its right under the agreement to Seneca Sawmill Company (Seneca), and BLM approved the assignment with stipulations that Seneca must comply with all “applicable State and Federal environmental laws, regulations and standards.” If Seneca violated this stipulation, BLM could discontinue the road construction.

When Seneca submitted a construction plan in 1990, BLM prepared an Environmental Assessment (EA) determining that the construction “may affect” the spotted owl and its habitat. In response, the Regional Solicitor issued an opinion that BLM did not have discretion under the agreement to act on behalf of the threatened species, regardless of the environmental stipulations contained in the assignment. Instead, the Regional Solicitor opinion suggested that BLM advise Seneca that the construction may result in an incidental taking which would require an incidental take permit under section 9(a) of the ESA.[2] BLM then reissued an EA with a Finding of No Significant Impact (FONSI) because the road would “not have any significant impacts on the human environment.” BLM determined that it need not consult with the U.S. Fish and Wildlife Service (FWS) regarding the spotted owl because it lacked discretion to prohibit the construction, but also advised Seneca that violations of the incidental take prohibitions of the ESA could lead to a cessation of the construction. Sierra Club then filed suit alleging that BLM’s EA was inadequate because BLM failed to consult with FWS, thus violating the ESA. The ESA requires consultation with FWS by an agency before undergoing any discretionary action that may affect a listed species.[3] The district court granted Sierra Club’s motion for summary judgment on the ESA claim and BLM’s motion for summary judgment on the NEPA claim.

On appeal to the Ninth Circuit, BLM argued that the consultation provisions of the ESA did not apply where the relevant agency action took place before Congress enacted the ESA, that it lacked discretion under the original contract to deny construction of the road, and that the environmental stipulation did not broaden any discretion it did have. The court distinguished Pacific Rivers Council v. Thomas,[4] which had held that Land and Resource Management Plans (LRMPs) prepared by the Forest Service were continuing agency actions having ongoing and lasting effects extending beyond the time of their adoption. Here, the Ninth Circuit reasoned, the right of way agreement was fixed and the agency had no real discretion that would allow it to take action relevant to the threatened species. The court did not agree with the Sierra Club’s contention that the ESA implicitly invalidated preexisting agreements because section 7(a)(2) of the ESA is not retroactive, but limited to cases where the agency retains some control over the private activity. Furthermore, section 7(a)(1), which requires federal agencies to further the purposes of the ESA, could not be read to expand BLM’s power past its enabling act, and only obligates it to use the power it already possesses. Therefore, because BLM did not have any discretionary power under the contract, it did not have any implicit duty or authority to limit the right of way.

Sierra Club also argued that, regardless of BLM’s limited ability under the original contract, the environmental stipulation enacted in 1989 when Woolley assigned the contract to Seneca, and which therefore came after the enactment of the ESA, obligated BLM to meet the requirements of section 7(a)(2). The Ninth Circuit, however, found that the stipulation did not broaden BLM’s ability to cancel the contract on environmental grounds. Rather, the stipulation only allowed BLM to take action if and when there was an environmental violation. The court stated that if Seneca did not obtain an incidental take permit pursuant to section 9 of the ESA,[5] Sierra Club could then pursue a claim for violating the ESA.

Finally, the court found that BLM did not violate NEPA because NEPA is only triggered by discretionary federal action. Because BLM only had limited ability to modify the contract, it did not possess sufficient discretion for the action to be termed “agency action.”

The dissent found that the limited ability BLM had under the contract conferred sufficient discretion to effect the terms under the contract and that BLM’s action would be subject to ESA and NEPA review.


[1]It required Woolley to submit a map of the road before construction. BLM could only object to it if 1) it was not the most direct route, 2) it would substantially interfere with existing or planned facilities, or 3) it would result in excessive erosion to lands of the landowner.

[2]16 U.S.C. § 1538(a) (1994).

[3] Id. § 1536(a)(2).

[4]30 F.3d 1050 (9th Cir. 1994), cert. denied,115 S. Ct. 1793 (1995).

[5]16 U.S.C. § 1538(a) (1994).

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