*1 ALARCON, Judge, concurring:
I concur for the reasons set forth in opinion.
footnote 2 of court’s ALASKA, al., et
TRUSTEES FOR
Plaintiffs-Appellees, HODEL, Secretary,
Donald P. United Interior,
States et
al., Defendants-Appellants.
No. 86-3738. Appeals, Court of
United States Circuit.
Ninth
Argued Sept. and Submitted 1986.
Decided Dec.
(2) concerning possible development, production exploration, and gas plain, of oil and within the coastal and legal authority what additional would be protect fish if necessary and wildlife development place.1 to take such were nine months Secretary years had five and Alaska, Adler, Anchorage, Robert of the statute to from the effective date plaintiffs-appellees. complete report, which due no Justice, September 1986.2 Belt, later than Dept. of Land & Regina R. Div., D.C., Washington, Resources Natural Secretary and the Fish and Wildlife Justice, Landon, Dept. Bruce M. U.S. seek review of the district court’s Service Snel, Alaska, Atty., Anchorage, Dirk D. submitting the enjoining them from D.C., Justice, for de- Washington, Dept. of Congress they comply until fendants-appellants. Policy with the National Environmental 1969, 42 4321-4347
Act of U.S.C. §§ (NEPA), implementing and its Secretary and the Service contend that: (1) groups standing; the environmental lack SNEED, KENNEDY and WIG- Before review; (2) ripe for and the issues are not GINS, Judges. Circuit (3) implementing NEPA and its require public legisla- comment on a do not WIGGINS, Judge: proposal its submission to Con- tive 1002(h) the Alaska National disagree grounds three gress. We on all (ANIL- Act Interest Lands Conservation and affirm. CA), the re- concerns BACKGROUND plain million coastal of the 1.5 acre sources 2, 1985, five environmental Refuge On October National of the Arctic Wildlife Alaska, American groups requires that the (ANWR). Section —Trustees Wildlife, Alliance, Defenders (Secretary) submit a Wilderness Secretary of Interior Center, Environmental (1002 Northern Alaskan report) contain- report to Trustees)— (the Society potential and the Wilderness (1) specific information about ing: declaratory injunc- and filed an action and fish and wildlife gas production and oil Department of Interi- ANWR; against the and tive relief plain of the the coastal within (4) gas, description if of how such oil and provides: 1. Section area, may transport- be produced within such years after December Not earlier than five facilities; processing ed to years and nine later than five and not gas (5) such oil and an evaluation of how date, Secretary shall after such months need for additional relates to the national con- submit to and gas; and of oil and domestic sources taining— (6) the recommendations (1) than means other the identification exploration respect to whether with for, drilling exploratory those areas wells of of, production development and gas plain oil and that have within the coastal gas should be oil and within potential of the vol- production and estimate and, so, legal additional permitted if what concerned; gas ume of the oil and necessary that the ad- to ensure wildlife, (2) description and of the fish such activities on fish verse effects of habitats, that are and other resources habitats, their wildlife, and other resources their paragraph areas identified within the or minimized. are avoided (D; 3142(h). (3) of the adverse effects an evaluation and Wildlife for Fish Assistant for, exploration carrying of further out Chairman of a letter to the stated in and Parks of, production oil and Insular Affairs on Interior the Committee have on the gas such areas will within to withhold action intends paragraph to in resources referred of this case. the outcome until or, Fish Secretary, The district Wildlife court determined that there just no Service, Regional delay Di- was reason for Director entered judgment for (the pursuant Fish Fed. rector of the and Wildlife Service 54(b) R.Civ.P. on March 1986. The De Department). sought The Trustees a dec- timely appeal filed notice requiring laration to sub- April *3 impact mit an environmental statement (EIS) pursuant 102(2)(C) of to section ANALYSIS 4882(2X0, NEPA, 42 before the I report submitted the to Congress. sought The Trustees also Standard Of Review mandatory injunction requiring grant We review the district court’s necessary public partic- follow all partial summary judgment de novo. See ipation procedures preparing the EIS. Lojek Thomas, (9th v. 716 F.2d alleged The Trustees that under NEPA and Cir.1983). Secretary’s We review the ac- Environ- to capricious, tion see if it “arbitrary, was Quality (CEQ), the Department mental discretion, an abuse or ... without ob- public EIS for circulate draft notice procedure required by servance of law.” 5 submitting before comment 706(2)(A),(D); Sagebrush see Re- report Congress. Finally, to bellion, Hodel, Inc. v. 790 F.2d alleged Department failed to com- ply with the Freedom of Act Information (FOIA), 5 U.S.C. 552.3 II parties
All partial filed sum- motions Standing mary judgment on the NEPA claims. The Department contends that the answer, Department the amended al- standing Trustees lack because actual or leged that it prepare would potential impairment of their members’ use (LEIS), environmental only of the coastal can be accom but would not 1002 report circulate the and plished by Congress choosing to eliminate report LEIS for until comment statutory prohibitions against the current Congress. submitted to After oral gas and oil in the ANWR. argument, granted the district court Department argues specula that mere partial Trustees' motion for summary judg- contents the 1002 ment. The court determined De- Congress its effect on does confer partment’s decision to submit the re- standing. port providing and LEIS first without Department’s characterization of opportunity public notice and comment this alleged case incorrect. The Trustees regu- violated NEPA and implementing complaint in their that their members had a lations. The court’s order directed De- procedural right under NEPA and the to a draft 1002 regulations to comment on the LEIS and full before the submits documents. view and comment of draft Congress. to The Trustees have The order Department directed standing challenge alleged agency viola incorporate procedural rights. tions these See West suggestions comments into the EPA, ern Oil & Gas Ass’n Department pub- The court ordered the (9th Cir.1980); City 808 n. Davis v. lish its responses locally before or the Coleman, 671-72 Cir. time it 1002 report. 1975). released complaint appeal, consists of two first counts: the the FOIAclaim and this additional FOIA alleges count complaint violations the second claims contained in amended alleges count pending violations of FOIA. At the time of still trial court. Laboratories,
III Under Abbott this ripe disagreement case is for review. The here is concrete. The will not provide presubmission public review and contends that the issues Its decision is clear and final rights to raised the Trustees’ claimed and the issue is therefore fit for ripe. on the draft LEIS are not comment Moreover, review. a denial of review at argues report may recom- It may point impose this hardship substantial mend that take no action concern- on the Trustees. Once acts on plain. As current law it, the information submitted the Trust production gas and oil in the hibits right ees lose their will to comment on the ANWR, no-action rec- draft LEIS at the administrative level. mean that ommendation would being less than candid “proposal report would not contain a *4 arguing in report may that the 1002 not report not contain legislation.” If the does “proposal legislation.” contain a for “proposal legislation,” for then no LEIS already has decided NEPA, 42 required is see U.S.C. report, an presumably LEIS with 1002 4332(2)(C),and the Trustees’ claims are § expects because it the 1002 to con- ripe. not “proposal legislation.”4 tain a Fur- ther, appears necessary, an LEIS because ripeness is intended The doctrine unlikely. the no-action is alternative courts, through prevent “to avoidance express language pro- of section entangling premature adjudication, from five-year study requires vides for a disagreements themselves in abstract over specific future use protect policies, and also to administrative plain. purpose of the coastal Since the judicial from interference until is to determine either to administrative decision has been formal an gas development allow further oil and or to way ized and its effects felt in a concrete designate for wilderness challenging parties.” Lab Abbott 413, preservation, S.Rep. see 96th Gardner, 136, 148-49, oratories v. 387 U.S. Cong., reprinted 2d Sess. in 1980 (1967). 681 87 S.Ct. L.Ed.2d 5070, 5184-85, Cong. U.S.Code & Ad.News requires of “the an evaluation likely recommend some will fitness of the issues for decision likely change quo in the status and so will parties hardship to the of withhold legislation.”5 “proposal contain a 149, ing court consideration.” Id. at 87 Waiting Department actually until the sub- 1515. A is fit for decision if S.Ct. at claim mits the 1002 could primarily legal do the issues raised are cause the Trustees to lose their claimed require factual presubmission Waiting rights to challenged action is final. See unnecessary Depart- also view Friedman Brothers Investment Co. ment’s decision to submit an LEIS with the 1317, Lewis, report.6 676 F.2d LEIS, unnecessary prepare be filed.
4. intends to an statements will 427 U.S. S.Ct. at 2728. integrated into will be 6. The relies on Bennett Hills Graz- congressional request specific recom- States, ing Ass'n v. United region specific distin- mendations within Cir.1979), (9th argument for its that this case is Club, guishes Kleppe case from v. Sierra this ripe. This court’s decision in Bennett Hills not is, however, Inc., L.Ed.2d 576 Hills, distinguishable. In Bennett (1976), the Court determined a case in which order en- this court vacated district court’s project contemplation is insuffi- (BLM) Management joining the Bureau of Land require NEPA. It is also cient to an EIS under appellees preparing a final EIS until the already significant that here the has days ninety to comment on BLM’s in which had disposing agreed Hills, however, to submit an thus In statement. Bennett draft Kleppe premature concern in Court’s complied with the and solic- BLM IV A. Modified Legislative Procedures for Proposals Rights Under Procedural NEPA provide for several essentially procedural stages preparation of an EIS. Gen- designed to insure that environmen erally, agency an a draft EIS given tal proper issues are consideration in and obtain comments on the draft from the appropriate decisionmaking process. agency. federal City C.F.R. (1985). An agency 1503.1 must also § Coleman, Davis v. quest agen- comments from state and local Cir.1975). 102(2)(C) of NEPA re cies, and public, and affirmatively soli- quires agencies to include a envi detailed cit comments from or interested affected with “propos ronmental persons organizations. prepar- Id. legislation major als for and other ing a agency final EIS an must consider affecting significantly quality actions to the comments. C.F.R. of the human environment....” 1503.4 The comments must be 4332(2)(C). Congress has directed that included with EIS. Id. policies, regulations, laws Section 1506.8 establishes a modified interpreted the United States shall be preparing cedure for an EIS on poli administered accordance with the proposals. Except specified exceptions, cies of possi NEPA “to the fullest extent permits agency section 1506.8 to trans- ble.” 42 4332; Lathan v. Brine single mit a LEIS and to feder- *5 gar, Cir.1974) (en state, al, agencies, public and local banc). final, for review and comment. No revised By Order, CEQ reg- Executive the issued necessary. 55,978, EIS is 43 Fed.Reg. 55,- agencies ulations implement- to federal for (1978). NEPA. Exec.Order 42 Fed. Exception B. to Modified Reg. 26,967 (1977). Procedures for The Study Processes binding on agencies all federal provide guidance formal to the for courts The Trustees contend the proposal interpreting requirements. 43 Fed. here falls specified within one of the excep- Reg. 55,978 (1978). CEQ’s interpreta- set tions forth in section 1506.8 and there- tion of Department NEPA is entitled to the provide substantial def- fore presub- erence. Club, Andrus v. mission Sierra Subsection 1506.- 8(b)(2)(ii)provides 347, 358, proposals resulting 60 L.Ed.2d “study process required by statute” (1979). Thus, may have a must follow the normal proce- draft/final right to comment on the draft LEIS before dures established section 1503.1.7 submits the 1002 report to CEQ regulations require if the Department contends that the 1002 procedure. such a “study process required not a by gress ited give comments its draft EIS. power intended to Here, posi- judicial 1309. has made its limit review. See 42 U.S.C. §§ permit tion it any public clear will not 4344. comments on the draft LEIS before it is sub- 1506.8(b)(2) provides proce- 7. Section Congress. mitted to requiring, dures both a draft and final EIS with regulation also relies agency requests for comment shall be 1500.3, section which states that is the "[i]t followed when: agen- Council’s intention that review of (ii) proposal study process results cy compliance from a [providing with the (such required by required by as those for comment on draft statements] not (16 the Wild and Scenic agency Rivers Act occur has filed the envi- statement____’’ (16 is, seq.) 1271 et Wilderness Act ronmental however, seq.)). Here, U.S.C. 1131 et a constitutional there doctrine. 1506.8(b)(2)(ii) (1985). creating is no 40 C.F.R. indication that in Con- procedures accelerated for meaning regula- lations of the statute” within legislative proposals to contrast “to fit better with asks the court tions. It Riv- and Scenic Congressional Fed.Reg. the Wild schedules.” with 1271-1287, Act, 16 U.S.C. 55,978, 55,979 (1978). ers §§ In its comments to Act, 16 U.S.C. Wilderness 1506.8, states that section “study process” examples of a the two hearings timing of votes and 1506.8(b)(2)(H). The De- given in subsection agency’s con- proposals is not within that unlike section contends 55,988 (1978). 55,978, Fed.Reg. trol. require partic- Acts outside these 1500.5(j) agencies states that shall Section formulating respective stud- ipation in their delay using proce- reduce accelerated Here, argues, Con- ies. legislation. proposals dures participation not desire outside gress does 1500.5(j) This time con- C.F.R. § requested information specifically but has “study process” cern does not exist when a from the permits a set time frame that includes alone.8 agency anticipate plan congres- study section find that We fact, schedules. it is doubtful sional by statute under subsec- process required Congress specifically requests that when 1506.8(b)(2)(H). con- recommendations from an information and ordinary “study process” within the tains a agency study process— the context 1002(h) sets meaning of the term. Section example here and in the two as it did information that requests for forth detailed Congress will act without Acts —that research, grants require agency’s and nine months years five it to present information and gather Congress requires example Acts contain sim- Congress. The comply policies NEPA to the set requests for information within ilar possible. fullest extent require frames and also submission time policies of NEPA is to encour- One reports Congress. various *6 age and facilitate involvement de- 1136, 1275(a). detailed re- 1132, §§ concerning cisions environmental issues. request and the extended time search 1500.2(d) (1985). fact, In 40 C.F.R. the 1002(h) § that research section vided for interpret NEPA to re- part 1002 is of us that the convinces See, required by quire public generally. e.g., statute.”9 comment “study process a 1500.1(b), 1500.2(b), (d), 40 C.F.R. 1503.- §§ Moreover, CEQ regulations make the 1,1506.6. leg- procedures The modified following a the main reason clear that proposals appear islative to be a narrow legislative state- procedure for modified In exception, not the norm. view of the the LEIS be sub- is a concern that ments NEPA, purpose stated of we hold that the Congress acts. Congress before mitted to comply failed to with subsec- in the major innovations summary of its 1506.8(b)(2)(H) deciding by to submit CEQ regu- the the states that regulations, larger study, part precon- is also by also contends 8. The Study Program. Slope Lands Federal North Congress, the Secretary’s report the ditioning the 239-43, Cong., S.Rep. 292-96, 2d Sess. 96th unconstitutionally injunction district court’s Cong.Ad. reprinted in 1980 U.S.Code argument legislative process. This the hinders study is 5236-41. That News assumes, however, in- the district court’s indistinguishable and Scenic Riv- from the Wild junction requires procedure not found in the Act in that it too and the Wilderness ers Act If the participation in certain sec- provides for outside quire public the administrative lev- comment at 3142(c), (e)(2). See, e.g., To 16 U.S.C. § tions. el, simply enforc- the district court’s then partic- require specific reference to outside Congress’s under NEPA and does mandate es itself, however, inter- ipation in section prets the term powers separation doctrine. the not violate by “study process required stat- narrowly. ute” too necessary un opportunity without an is only LEIS mined that one 1002(h). section Excerpt der of Record at comment.10 48. Because the chairman the is an V charged administering reg officer the ulation, regulation his interpretation of the Attorneys’ Fees “controlling weight.” has Udall Tall by claim Trustees for attor man, neys’ is denied. The claim made fees is L.Ed.2d 616 Buschmann v. Schwe Equal Access Justice Act iker, No 2412(d). (EAJA), pro 28 U.S.C. EAJA § additional basis interpre for the chairman’s attorneys’ to a vides that fees available necessary, tative contrary to prevailing party against in civil action majority’s intimations in footnote 10. position “the United States unless Even substantially justified.” United without the States guidance, chairman’s I 2412(d)(1)(A). would Although be we reluctant § conclude that against Department, argued rule it is a study process. The lan- guage position. forcefully and well for Its section augmented by the position justified, although pertinent legislative was at all times history, slight is too erroneous. skeleton to bear the weight of the proce- dures that majority imposes. The reg-
AFFIRMED. gives ulation examples two of statutes that require a study process. SNEED, Judge, One dissenting: explicitly provides participation. 16 U.S.C. I respectfully portion dissent 1132(d). The other explicitly mentions opinion that concludes that “studies” provides for participation by a “study process” within the heads of other meaning 1506.8(b)(2)(ii) of 40 C.F.R. § governors. state statute at issue here briefly outlines the majority decides contents of required report and names request a draft com- no participant except the Secretary. ments, to the comments its U.S.C. 3142(h). Despite generous comply final LEIS in order to with NEPA. length of time that the gives (1985). This 1503.1-1503.4 40 C.F.R. Secretary to complete his report, I do not language gloss considerable is a find here describes a study NEPA, only asks for “a detailed process. responsible official” de- scribing impact. environmental *7 4332(2)(C). only authority
U.S.C. gloss regulations. is the however, CEQ,
chairman has deter- Department argues involving 10. NEPA and that the General Counsel the Chairman agrees interpretation interpreta subsec consults with the Chairman 1506.8(b)(2)(ii) give regulations. the court must tion of the The statute creat and that CEQ regu position interpretation makes reference of the Chairman’s no Chairman’s "controlling weight.” Compare Udall v. to his duties. 42 designating lations Tallman, refers the duties the Council U.S. Clark, Club the Council as a whole. U.S.C. 4344. Ex L.Ed.2d Sierra Cir.1985). authorizing Although F.2d asked ecutive grant Depart repeatedly argument, promulgate regulations does do so at oral powers interpret any any special or point to ment was unable to basis for Chairman interpret regula Exec.Order No. Chairman's administer 26,967-68 Thus, tions, Fed.Reg. CEQ’sGen we than other the affidavit interpre stating CEQ Chair are not that the Chairman’s eral Counsel that the current convinced "controlling” responsibility this case. issues or correct in man has assumed sole tation