Trustees for Alaska v. Donald P. Hodel, Secretary, United States Department of the Interior

Section 1002(h) of the Alaska National Interest Lands Conservation Act (ANIL-CA), 16 U.S.C. § 3142 (h), concerns the resources of the 1.5 million acre coastal plain of the Arctic National Wildlife Refuge (ANWR). Section 1002(h) requires that the Secretary of Interior (Secretary) submit a report to Congress (1002 report) containing: (1) specific information about potential oil and gas production and fish and wildlife within the coastal plain of the ANWR; and (2) recommendations concerning possible exploration, development, and production of oil and gas within the coastal plain, and what additional legal authority would be necessary to protect fish and wildlife if such development were to take place. 1 The Secretary had five years and nine months from the effective date of the statute to complete the 1002 report, which was due no later than September 2, 1986. 2

The Secretary and the Fish and Wildlife Service seek review of the district court’s order enjoining them from submitting the 1002 report to Congress until they comply with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (NEPA), and its implementing regulations. The Secretary and the Service contend…

dissenting:

I respectfully dissent from the portion of the opinion that concludes that the 1002 report is a “study process” within the meaning of 40 C.F.R. § 1506.8 (b)(2)(ii) (1985).

The majority decides that the Secretary must prepare a draft LEIS, request comments, and respond to the comments in its final LEIS in order to comply with NEPA. See 40 C.F.R. §§ 1503.1-1503.4 (1985). This is a considerable gloss on the language of NEPA, which asks only for “a detailed statement by the responsible official” describing the environmental impact. 42 U.S.C. § 4332 (2)(C). The only authority for the gloss is the CEQ regulations. The chairman of the CEQ, however, has determined that only one LEIS is necessary under section 1002(h). 1 Excerpt of Record at 48. Because the chairman of the CEQ is an officer charged with administering the regulation, his interpretation of the regulation has “controlling weight.” Udall v. Tallman, 380 U.S. 1, 16 , 85 S.Ct. 792, 801 , 13 L.Ed.2d 616 (1965); Buschmann v. Schweiker, 676 F.2d 352, 355 (9th Cir.1982). No additional basis for the chairman’s interpretative authority is necessary, contrary to the majority’s intimations in footnote 10.

Even without the…

806 F.2d 1378 17 Envtl. L. Rep. 20 ,323 TRUSTEES FOR ALASKA, et al., Plaintiffs-Appellees, v. Donald P. HODEL, Secretary, United States Department of the Interior, et al., Defendants-Appellants. No. 86-3738. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 3, 1986. Decided Dec. 23, 1986. Robert Adler, Anchorage, Alaska, for plaintiffs-appellees. Regina R. Belt, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., Bruce M. Landon, U.S. Dept. of Justice, Anchorage, Alaska, Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., for defendants-appellants. Appeal from the United States District Court for Alaska. Before SNEED, KENNEDY and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: 1 Section 1002(h) of the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. Sec. 3142 (h), concerns the resources of the 1.5 million acre coastal plain of the Arctic National Wildlife Refuge (ANWR). Section 1002(h) requires that the Secretary of Interior (Secretary) submit a report to Congress (1002 report) containing: (1) specific information about potential oil and gas production and fish and wildlife within the coastal plain of the ANWR;…