ELR Citation: ELR 20888
No(s). 82-1695 (D.C. Cir. Sep 13, 1983)

The D.C. Circuit, reversing the district court's decision, 12 ELR 20454, rules that the Forest Service (USFS) violated the National Environmental Policy Act by issuing oil and gas leases in the Palisades roadless area without preparing an environmental impact statement (EIS) or placing conditions in the leases precluding surface dusturbance. The Forest Service designated the Palisades as a further planning area, still being considered for inclusion in the wilderness system. USFS approved a leasing program that would allow leases with surface occupancy restrictions in most of the area and leases with less stringent restrictions in part of the area. USFS and the district court agreed that the program would have no significant environmental impacts and would not require an EIS. The court first holds that the agency's decision must be sustained unless arbitrary and capricious, but the court must take a hard look at the decision. The court then rules that the agency's record does not support a finding of no significant impact. Since USFS gives up the power to prevent surface disturbance by issuing leases without strict conditions, the decision to allow surface disturbance is being made at the leasing stage. Surface disturbance entails an irretrievable commitment of resources and thus USFS must prepare an EIS. Alternatively, USFS may choose to put stricter restrictions in the leases, thus postponing the commitment of resources.

Counsel for Appellant
Karin P. Sheldon
Sierra Club Legal Defense Fund, Inc.
820 16th St., Suite 514, Denver CO 80202
(303) 892-6301

Counsel for Appellees
Claire L. McGuire, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

R. Brooke Jackson, John F. Shepherd
Holland & Hart
P.O. Box 8749, Denver CO 80201
(303) 575-8000

Gerry Levenberg
Van Ness, Feldman, Sutcliffe, Curtis & Levenberg
7th Floor, 1050 Thomas Jefferson St. NW, Washington DC 20007
(202) 231-9400

Before: WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.