ELR Citation: ELR 20062
No(s). CV 91-78-M-CCL (D. Mont. May 21, 1994)

The court holds that an environmental group has standing to challenge the U.S. Forest Service's final determination of the validity of a company's mineral claim on government land under the 1872 Mining Law and the Wilderness Act of 1964, and that an environmental assessment (EA) or environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) is not required prior to the Forest Service's non-discretionary determination of the validity of the mineral claim. The court first holds that the environmental group has standing because the harm it alleges is traceable to the final validity determination and would be redressed by a favorable ruling. The environmental group has shown that the mining project will adversely affect the conservation, recreational, and aesthetic use and enjoyment of the Cabinet Mountains Wilderness and Kootenai National Forest. Moreover, the final validity determination is directly traceable to the potential harm since the validity determination is a necessary precondition to the company's ability to mine. Further, the company cannot undertake mining but for the challenged validity determination, therefore a ruling on the Forest Service's decision would provide redress. Standing is not defeated simply because the Forest Service must take further actions and additional permits are required before actual mining can begin. The court expressly refrains from identifying the minimum requirements with which the Forest Service must comply to have made a final determination, but holds that in this instance a final validity determination was made when a recommendatory report that considers evidence and expressly concludes that valid rights exist under the Mining Law and the Wilderness Act is adopted by the Regional Forester of the Forest Service. Redress for lack of proper notice and comments prior to the final determination would be to remand to the agency, but the court holds that there is no purpose in remanding since the environmental group will be heard in the application for a mining patent that is pending before the Bureau of Land Management (BLM).

The court next holds that a transmittal letter to the Forest Supervisor and news accounts in the local press do not constitute legitimate notice of the validity determination, therefore the statute of limitations does not bar this action since it did not begin to toll until a decision notice approving of the company's plan of operations for the mine was released. The court holds that an EA or an EIS is not required under NEPA because the Forest Service act of determining the validity of a mining right is non-discretionary and entails consideration of whether a statutory right exists, not whether less harmful alternatives exist. The court also holds that an EIS cannot be required in order to provide the basis for a possible legislative or executive action to challenge, purchase, or condemn mining rights that threaten destruction of a pristine wilderness area. Lastly, the court holds that it is not required to defer under the doctrine of primary jurisdiction to BLM's pending ruling since the Forest Service has already issued a final determination that may be challenged in the district court. Nevertheless, the court stays proceedings on substantive issues in order that BLM's analysis may aid the court in its determination.

Counsel for Plaintiffs
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Gary B. Randall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000