*1 42 FCC 2d at 461. summary, we believe that the Com-

mission is correct in its (1) assertion that grant of the permits in question petitions

while to deny were pending

was error, (2) harmless the headstart (to doctrine the extent it retains any vi-

tality) is not appropriate to this (3) there are no “anti-competitive”

considerations sufficient to outweigh the

public interest in per- these mits.

Affirmed. al., Appellants,

SIERRA CLUB et

Rogers MORTON, Secretary B.C.

the United States

Interior, et al. No. 74-1389. Keiner, Bruce J. T. Terris and Suellen United Appeals, States Court of Washington, D.C., appellants. District of Columbia Circuit. B. Raymond Edmund Zagone, N. Clark, Johnson, B. Jacques Wallace H. Argued Dec. Gelin, Justice, Washington, Dept, Decided Jan. D.C., appellee. Judge, and BAZELON,

Before Chief MacKINNON, Circuit WRIGHT and Judges.

ORDER PER CURIAM.

On appellants’ motion consideration of for a injunction pending appeal, limited and it appearing Secretary’s answer to Supplemen- Plaintiffs’ Revised tal Interrogatory No. that the Secre- tary is in process approving disapproving rail- mining plans road rights-of-way the East- set forth in ern Powder Environ- River Coal Basin Statement and to maintain quo status disposition peal, it is *2 534 the afore- the projects court that within by this on

Ordered issued Remand Finding it is on Supplemental and granted, motion is said the statement adequacy The of No. 9a. the that this court ordered Further mine has relating to the Westmoreland action no take of the Interior that following approval of litigated been railroad mining plans and concerning the District Court application. The Montana the Eastern in rights-of-way set forth Morton, No. 74— Civ. Redding in Environmental Basin Powder River Coal 1, 1974) that that (D.Mont. May 12—BLG order further Impact pending Statement require- with the complies of this court. on NEPA, is that case of and ments dissents court Judge appeal MacKINNON to the Ninth Circuit. Circuit attached in his enjoin forth the Ninth Circuit obviously for the reasons set cannot District opinion. upholding the Montana from the allowing and thus Court (dissent- MacKINNON, Judge Circuit the enjoin proceed. to Nor could ing): project proceeding with parties from majority In the the order Pea- approved by another court. a limited for motion been also project has body Company Coal the order appeal and not it has apparently but from refrain Secretary of the Interior to of (Supp. Memo challenged in court been any concerning action the 12). at Intervening Defendants-Appellees Coal ered Powder River the Eastern the to review If an action is initiated Basin Statement Environmental that adequacy of the statement until court. further order this an- prevent project, not this court could Although the Powder River Statement ac- that entertaining other court from exhibit, an is the record as attached to injunc- tion. The effect of the to upon the court below was not called three tion, then, one of is to remove rule the statement adequacy as to the of proc- the normal statements from actions support of adequacy judicial of ess review of is not covers, issue that and therefore such statements. appel- If appeal. before this court on In Scientists Infor- Institute for Public lants believe that that mation, (SIPI) AEC, U.S.App. Inc. justify is not sufficient n.68, D.C. rights-of-way, mining plans (1973), n.68 this court stated: of expression proper method for is The decision the time whether chal- appeal such concerns is to file an ripe for a NEPA on appel- lenging that statement. All pro- overall research and neces- arguments relating lants’ gram is a law and question mixed on sary scope statements fact. raised within challenge statement. With respect to a judicial review fact, appeal this court presently questions mixed of law obtaining the Supreme not an vehicle for Court has authorized practical review, de facto “ra- review in this circuit standard cover- tional sufficiency test, statements basis” under which appel- ing court will various within decision agency’s reverse the Region.” if it lants’ “Northern Plains no warrant in the record Great appel- no obviously is less convenient reasonable basis in law. litigate lants case The agency decision in the statement, written but the law was currently exists no Club convenience Sierra com- of a requires preparation litigants. and other prehensive Re- only Plains “Northern Great Powder River Statement as to gion.” An decision one of have been three scope statement should re- to view sonable as a “ma- ceive at least as much jor deference as a federal action” for which an overall timing preparation decision impact statement appropriate. would be contrast, of a statement. Thus the in the instant the Interior’s decision not to issue bring a re- case seek to to a any halt gional statement should upheld may also be if action be related to the de- *3 a rational basis. velopment deposits grades of three through coal distributed four states. proceeding Rather than regional on a agencies Nine and at least 15 basis, has decided pre- types of federal action are involved. pare policy a national governing coal The record discloses no action directed to leasing activities. The po- Government’s appellants’ “region” entire except consistently sition has been that an im- Study. certainly It is not necessary for pact statement must prepared prepare Government to an impact any major federal action relating to coal prior statement to studying problem. a development will be taken within the “region” or elsewhere. Supp. Find- involved an irretrievable SIPI commit- ing on Any Remand No. 6. since expenditure ment of resources will cover cumulative as well as incre- development style impacts. Where it finds that a reactor of breeder made more difficult related actions with- the investment in to abandon favor of an appropriate, in an area is a broader design. No such alternate commitment statement will be preface issued. The exists in of resources the instant case. Statement, the Powder River quoted in mining operation The fact that one Supp. Finding 8, on Remand No. illus- compel impel does or trates the considerations which deter- approval mining proposals of other else- mine the scope of such a where in While some statement. The Secretary has also ini- undoubtedly will be interrelated tiated the Northern Great Plains Re- (e. g. a mine and associated rail rights- Program Study sources by chance of-way), statements on such roughly covers the same area as the projects will be coordinated and must vague “region” described in consider cumulative general effects. complaint. However, Study is mere- development any portion ly provide intended to a framework for region proceed independently pri- future decision-making and 'is not de- or elsewhere. signed produce proof Absent existence federal actions. The court explicit implicit program may feel that it would be beneficial for ering region the entire and absent an engage Government to type in the irretrievable regional commitment of re- comprehensive long-range regional plan- sources from the of individual ning advocate, but it actions, it cannot be said that the cannot be logically argued that Government has abused its by discretion approach Government’s problem to the declining prepare regional without a rational basis. statement. Thus the facts in SIPI are distinguishable instant case distinguishable from the situation here prepara- required the from SIPI presented and that decision does not re- comprehensive aof tion quire up- contentions be covering a research this court. metal fast liquid Fifth, with one Tenth dealt Ninth and Circuits reactors. SIPI breeder impact recently upheld into a of research have a sin- which were being conducted individual reactor type by sepa- larger regional de- part funded alleged gle Stamm, was rea- appropriation. velopments. Sierra Club rate annual (10th 29, 1974);1 F.2d 788 Cir. Nov. Sier federal actions attacked Callaway, (5th pellants Club v. 499 F.2d 982 ra 1974);2 Environmental Cir. Defense circuit courts in each of those cases Armstrong, (9th Fund that an found statement for the 1973), denied, cert. required.

Cir. 94 affected was not (1974).3. 40 L.Ed.2d 564 S.Ct. dealt with in For the respectful- those cases reasons I were closely ly

more related and were dissent confined issuance of the sub- geographic ject smaller injunction. areas than are the Strawberry This involved the relation of 3. This involved the relation of the New Mel- System larger Aqueduct & Collection (Cali- Valley to the ones Dam Central Projects. Utah fornia) Unit and Bonneville Central involved the relation of Wallisville *4 Trinity Project River Reservoir