*1
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.
Cir.
94 affected
was not
(1974).3.
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