ELR Citation: ELR 21539
No(s). s. 93-35482 et al (9th Cir. Sep 15, 1995)

The court holds that the Bureau of Land Management (BLM) did not violate the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA) by not preparing an environmental impact statement (EIS) or consulting with the U.S. Fish and Wildlife Service before giving a logging company permission to build a road across BLM lands to facilitate logging that may affect the threatened spotted owl. BLM approved the road under a 1962 reciprocal right-of-way agreement with the company's predecessor that allowed the predecessor to construct logging roads over specified BLM lands to access its property. The agreement stipulated that BLM could refuse to allow the predecessor to construct a road only if the proposed route was not the most direct, would substantially interfere with existing or planned facilities, or would result in excessive soil erosion. When the company requested permission to construct the road, BLM prepared an environmental assessment (EA) that found that the anticipated logging might affect the spotted owl. The Department of the Interior Regional Solicitor then concluded that BLM lacked discretion under the agreement to influence the design of the road to benefit the owl and the ESA consultation would thus serve little purpose, after which BLM approved the road.

The court first holds that ESA §7's consultation provisions do not apply to the company's right-of-way construction. The regulations specify that §7 applies to all actions in which there is federal involvement or control that is discretionary. The court notes that to the extent the ESA and its regulations are ambiguous, the court must defer to an agency's reasonable interpretation of the laws it administers. The court holds that the Regional Solicitor reasonably interpreted the language in question. Significantly, the Regional Solicitor considered BLM's obligations under the agreement, the regulations, and the ESA, and determined that there was no discretionary action to which §7(a)(2) could apply. The court notes that where, as here, the federal agency lacks the discretion to influence the private action, consultation would be a meaningless exercise. The court next holds that the ESA does not implicitly aborgate preexisting agreements. Although Congress can modify its contractual obligations, when it enacted the ESA it specifically limited the application of §7(a)(2) to cases in which the federal agency retained some measure of control over private activity. The court holds that the addition of an environmental stipulation at the time the predecessor assigned its rights to the company does not broaden BLM's power to disapprove the right-of-way construction. It merely provides BLM with a remedial contract right to discontinue the operations if and when there is an environmental infraction. The court next holds that because BLM has limited discretion to disapprove the road, BLM's issuance of a letter approving it was not an action authorizing it within the meaning of §7(a)(2). Also, BLM's preparation of the EA cannot be considered an authorization when the company already possessed the right to build the road. And BLM's position that the agreement provided for the automatic sale of right-of-way timber as part of the company's right to construct the road is uncontroverted and supported by the language of the document. The court thus concludes that the company's right to harvest the timber vested on execution of the agreement. The court next notes that when a wholly private action threatens imminent harm to a listed species, the appropriate safeguard is through ESA §9, not §7. Turning to the claim that BLM failed to comply with NEPA, the court holds that NEPA's procedural requirements do not apply to this case because BLM lacks the power to implement alternatives modifying the company's road construction. There is no benefit from NEPA compliance when BLM's ability to modify or halt the project is limited to the three conditions that the right-of-way agreement allowed. Further, although §7(a)(1) imposes a mandatory duty on BLM to conserve protected species, it does not confer additional statutory authority allowing BLM to regulate the project for the benefit of a protected species.

A dissenting judge would hold that BLM's approval of the project was an agency action that triggered the consultation provisions.

Counsel for Plaintiffs
Gary K. Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland, OR 97205
(503) 227-5144

Counsel for Defendant
Peter A. Appel
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Pregerson, Trott, and Fitzgerald,^* JJ.