dissenting:
In Wyoming v. Hathaway, 525 F.2d 66, 72 (10th Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 880 (1976), we observed that NEPA "was not intended to force the agency to merely follow out a regimen." Similarly, the Council on Environmental Quality regulations implementing NEPA tell us that "NEPA's purpose is not to generate paperwork-even excellent paperwork-but to foster excellent action." 40 C.F.R. § 1500.1(c). Today we ignore this advice and the excellent results of a lengthy and comprehensive trial.1 In lieu, we direct the BLM to complete a meaningless paper exercise. I dissent from this conclusion f~r two reasons. First, the Sierra Club agreed that the district court would serve as the finder of fact. Thus, it should be held to the district court's factual findings. Second, the BLM undertakes no "major federal action" in this case.
The district court noted the "interesting" procedural posture of this case. Sierra Club v. Hodel, 675 F.Supp. 594, 602 (D.Utah 1987). Specifically, the environmental plaintiffs asked "the court to be the finder of fact on all factual issues." Id. The district court recognized that the procedural posture with which it was confronted by the plaintiffs' request would require the court to usurp the BLM's function in violation of the doctrine of primary jurisdic*1098tion,2 but for the fact that BLM had already made factual findings and a record sufficient for court review. Id. The district court found that the BLM had generated a substantial record both administratively and in the field and that it was appropriate to review the BLM’s factual findings and conclusions. Furthermore, the district court concluded that even where an insufficient administrative record exists “referral to the agency may not be appropriate where it would impede expeditious resolution of the case without a corresponding improvement in the quality of the analysis ... [and where] the agency’s position on the issue is already clear.” Id. at 602 n. 26.
Thus, the court also determined that it need not remand the question to the agency for the exhaustion of remedies.3 The majority chooses to remand to the BLM for compliance with NEPA’s procedural requirements without considering these questions. I disagree. One of the paramount questions for our resolution on this record is whether the circumstances here are such that the doctrine of exhaustion must be applied. I would hold that it need not be. I would reach the merits on the record compiled by the agency and the district court. Sierra Club requested that the district court serve as finder of fact on all factual issues, notwithstanding the allegation in its complaint that under NEPA, the BLM’s participation in the project constitutes major federal action which significantly affects the environment and therefore requires the preparation of an Environmental Impact Statement. Id. at 599. The defendants did not object. All of the parties freely submitted to a long trial involving a myriad of issues for resolution by the district court. The circumstances here are unusual, exceptional. The record before this court — constituting the record before the district court — covers every conceivable environmental issue which could be brought to bear in the County’s plan to upgrade the Burr Trail. And the record reflects that each of these issues was carefully considered and treated by the BLM and the district court. Under these circumstances, I would hold that the parties waived the right to raise the exhaustion requirement and the district court properly exercised its discretion.
Those “factual” issues framed by the plaintiffs for the district court’s resolution were (1) whether Garfield County has a valid right-of-way, (2) if Garfield county does have a valid right-of-way, must not its scope be narrowly circumscribed by the limited uses it has been put to over the decades, and (3) whether BLM’s participation in the County’s project constitutes major federal action significantly affecting the environment. These “factual” issues, framed by Sierra Club, were the focus of the district court proceeding which included many environmental reports previously prepared on the Burr Trail and exhaustive trial testimony involving twenty-six witnesses and 250 exhibits. Id. at 615. The district court observed that BLM District Manager Jensen had testified for six days and that the project’s chief engineer had testified for five days. Id. The district court concluded that:
[Requiring preparation of an EIS at this time would merely duplicate past efforts without enhancing the quality of the inquiry. The interests of the court and all the parties are best served by relying upon the resources which have already been prepared.
Id. at 616.
The record does not reflect that any party objected to the jurisdiction or power of the district court to hear and decide the issues framed or to the presentation of *1099detailed testimony and exhibits. Instead, all parties were willing participants in the procedure pursued by the district court. Yet our decision today ignores the procedural posture of the case below and gives the Sierra Club a second chance to dispute settled facts. Though the plaintiffs asked the district court to serve as the fact-finder, we allow them to abandon that request and force the BLM to revisit these questions.4
The majority responds that a private party may not have the authority to waive the procedural requirements of NEPA. At 1092. But that is not the question here. We do not enforce NEPA in a vacuum or sua sponte. Sierra Club seeks an injunction against the County’s proposal arguing that unidentified environmental impacts will result. The district court and BLM looked for impacts and found none. It seems incongruous that we will recognize the substantial equivalent of an EIS, at 1094; Wyoming v. Hathaway, 525 F.2d at 72 — NEPA’s most detailed and elaborate environmental document — yet we will not apply similar reasoning to an EA, a much less extensive document. And it is difficult to reason that we would allow Sierra Club to waive the substance of environmental analysis, but not the procedure. Certainly, the district court did not understand the plaintiffs’ request to serve as the finder of fact as it is characterized by the majority now.
The district court found that the County’s proposal would generate no significant environmental impacts. Sierra Club, 675 F.Supp. at 615. Furthermore, it concluded that BLM had made the same finding and that BLM’s “finding of no significant impact was well within the bounds of reasoned decision-making and is supported by persuasive evidence.” Id. (citation omitted). Yet, because the BLM did not label that finding with a particular title, we are remanding for the preparation of an EA (requiring less analysis and detail that the record before us) and FONSI (without rejecting the district court’s similar finding as clearly erroneous).
The only result of the decision here will be wasted time and money. We preserve bureaucratic form over environmental substance because the district court’s opinion demonstrates that the County’s Burr Trail project has been thoroughly studied and that the minor improvements proposed by the County will have no significant environmental impact. Thus, any remand to the BLM will be a meaningless paperwork exercise with its attendant expenditure of untold hours of work by BLM personnel in its preparation and presentment. There is no suggestion that BLM will give any consideration to an environmental issue not already presented to and addressed by the district court and in the record before us on appeal. Thus, we can safely conclude that as a result of our remand, the BLM will ultimately issue the required NEPA documents which will, in turn, trigger another round of litigation.
There is a second, equally important reason why our decision today is incorrect. The federal action we review here does not trigger the procedural requirements of NEPA. BLM is involved in this project in two ways. It must determine that the County’s proposal is within the scope of its right-of-way, and it must determine that the proposal does not unnecessarily degrade the adjacent WSAs. The district court found major federal action in BLM’s activities related to the right-of-way. Sierra Club, 675 F.Supp. at 612; Slip op. at 1090. The majority properly rejects this conclusion. Id. at 1090. Then, inexplicably, the majority finds federal action in BLM’s duty to protect the integrity of wilderness study areas. After careful review, I must reject those conclusions. The majority does not recognize, as it must, that in a practical sense there is no difference in *1100the BLM’s responsibility to monitor the County’s right-of-way construction and protecting the WSAs. BLM’s obligations are virtually identical in either case. BLM will, as a practical matter, implement its responsibility in protecting the WSAs in exactly the manner it would meet its responsibility to monitor the right-of-way, i.e., by meeting with county planners, expressing opinions, monitoring construction progress, inspecting the construction and requiring legal modifications. See Id. at 1090, n. 17. Furthermore, the legal standards imposed on BLM in the implementation of these duties are indistinguishable: BLM must assure that the County’s use of the right-of-way is “reasonable and necessary” while WSAs must be protected from “undue and unnecessary degradation.”
The majority attempts to distinguish the two responsibilities by suggesting first, that the latter duty is mandatory. Id. at 1091, and second, that it involves a greater exercise of control and discretion. Id. at 1090. Neither argument is persuasive.
FLPMA imposes a mandatory duty on BLM to protect WSAs. But the duty to monitor the County’s right-of-way is apparently no less mandatory. Describing the BLM as “protector of public lands,” the majority concedes that the BLM has a “duty to insure that the County does not act outside its authority or beyond the boundaries of its right of way.” Slip op. at 1090. The district court proceeded under the same assumption. Sierra Club, 675 F.Supp. at 606. On this question, I submit that there is simply no principled difference between the two federal responsibilities, and there is no major federal action.
But the majority also suggests that the duty to protect WSAs “injects an element of federal control for required action that elevates this situation to one of major federal action.” Slip op. at 44. Again, this reasoning ignores the fact that the same elements are present in BLM’s decisions regarding the County’s right-of-way. First, there are elements of discretion. The width of the right-of-way is “that which is reasonable and necessary.” Sierra Club, 675 F.Supp. at 606. And, as the district court noted, “[wjhether the proposed construction is actually reasonable and necessary is for the BLM to decide.” Id. The discretion in the standard for protecting WSAs, “undue and unnecessary degradation,” is virtually the same. Similarly, both responsibilities contain elements of control. When BLM reviewed the County’s stakes it found ten places “where the proposed road would not adjoin the old road. In these ten places the county would have to either pull back so as to adjoin the present road, or apply for a right-of-way amendment.” Sierra Club, 675 F.Supp. at 603. BLM has the power to control the County’s use of the right-of-way and has exercised that control.
In this case, BLM’s duty to protect the WSAs adjacent to the Burr Trail does not rise to the level of major federal action. The majority’s conclusion to the contrary is tied by tenuous legal threads and ignores its own analysis of BLM’s right-of-way duties. Without the requisite major federal action, there is no need to remand this decision to BLM for the preparation of an EA.
I conclude that this case presents one of those exceptional circumstances justifying waiver of the exhaustion of administrative remedies doctrine and affirmance of the district court in all respects other than its order directing the county to submit an application to BLM for a FLPMA permit to deviate from the existing right-of-way in the Gulch. Such a deviation is not mandatory and the district court erred in so directing. Should the County determine to relocate the existing right-of-way, such an activity would trigger the need for a FLPMA permit and constitute “major federal action.” The decision on how to proceed, however, is that of the County alone.
I would affirm the district court except for its order that the County apply to BLM for a FLPMA permit to alter the right-of-way in the Gulch.
. This case involved twenty-five (25) days of trial on the merits. In addition, eight (8) days were involved in hearings on environmental plaintiffs' Motion for Preliminary Injunction. Thus, the district court heard the parties out over a period in excess of six weeks.
. The doctrine of primary jurisdiction provides that where the law vests in an administrative agency the power to consider, treat and decide an issue, the courts will refrain from entertaining the case until the agency has fulfilled its statutory obligation. California v. Federal Power Commission, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); American Min. Congress v. Thomas, 772 F.2d 617, 626 (10th Cir.1985); Sunflower Elec. Coop. v. Kansas Power & Light Co., 603 F.2d 791 (10th Cir.1979); Nickol v. United States, 501 F.2d 1389, 1390-91 (10th Cir.1974).
. Exhaustion of remedies is a corollary to the primary jurisdiction doctrine and normally requires that the agency process be exhausted before the courts will act. "The doctrine provides ‘that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938)). But the doctrine is not to he applied blindly in every case. It is a matter within the sound discretion of the courts. See Id. at 200-01, 89 S.Ct. at 1666; Rocky Mountain Oil and Gas Ass’n v. Watt, 696 F.2d 734 (10th Cir.1982).
. The only explicit request made by the Sierra Club to the district court that NEPA requirements be studied by BLM was in plaintiffs’ Cross Motion for Summary Judgment. Plaintiffs asked the district court to declare that Garfield County’s “proposed construction activities are subject to the requirements of the National Environmental Policy Act” and requested that BLM be required to prepare an environmental impact statement, or alternatively, an environmental assessment. (R., Vol. II, Tab 77 at 2). This request, however, was simply an alternative, inasmuch as Sierra Club, et al., insisted that Garfield County did not have a valid claim of right-of-way upon the Burr Trail. Further, plaintiffs contended that if the district court found that Garfield County did have a valid right-of-way, it should be limited to its present alignment and width of the road and those uses permitted under R.S. 2477. There is no further request of Sierra Club in this record that any environmental issues be remanded to the BLM. Thus one must ask: Why did the parties present exhaustive trial testimony and exhibits dealing with environmental issues involving the Burr Trail project to the district court if the parties did not intend that the district court decide them?