ELR Citation: ELR 20300
No(s). 79-526 BU (D. Or. Nov 10, 1982)

The district court holds that the Department of the Interior's expression of an interest in acquiring property adjacent to the Malheur National Wildlife Refuge is not a proposal for a major federal action requiring preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court denies plaintiffs' motion to amend its complaint. It rejects plaintiffs' first proposed amendment, which alleges that defendants' present refuge management policy is a major federal action requiring an EIS, because an EIS is required only if the action alters the status quo. It rules that plaintiffs' second proposed amendment, which alleges that defendant Fish and Wildlife Service created a nuisance by allowing noxious weeds to spread to plaintiffs' land, is outside its jurisdiction because tort claims against the U.S. government must comply with the Federal Tort Claims Act. The third proposed amendment, which alleges that defendants violated 43 U.S.C. §§1241 et seq. by not cooperating with the state in its weed abatement programs, states no claim under the statute. Finally, the court denies plaintiffs' fourth amendment, which alleges that the Fish and Wildlife Service violated plaintiffs' constitutional due process rights by expressing an interest in their property without providing an opportunity to be heard, because defendants have not taken any condemnation action that affects plaintiffs' property. Finally, the court holds that defendants' recommendation for acquisition of the property is not a proposal for major federal action requiring preparation of an EIS. Federal interest in future condemnation of property near the wildlife refuge is too indefinite to amount to a proposal.

Counsel for Plaintiffs
Irvin D. Smith, Dist. Attorney
P.O. Box 548, Burns OR 97720
(503) 573-2851

Ben A. Wallis Jr.
2400 Tower Life Bldg., San Antonio TX 78205
(512) 226-2331

Counsel for Defendants
Charles H. Turner, U.S. Attorney;Thomas C. Lee
312 U.S. Cthse., P.O. Box 71, Portland OR 97207
(503) 221-2101