Minnesota Public Interest Research Group v. Earl v. Butz, Individually, and as Secretary of Agriculture

ROSS, Circuit Judge,

with whom STEPHENSON and WEBSTER, Circuit Judges, join, dissenting.

In this case the Forest Service made a decision that the routine supervision or extension of the time for completion of the logging contracts in question was not “major” federal action having a “significant” effect on the quality of the human environment. We think that common sense dictates that this decision was correct and that the decision of the trial court should be reversed.

These logging contracts had been entered into by the Forest Service prior to the enactment of NEPA pursuant to the authorization of Congress in the Wilderness Act. No federal expenditures were involved in either the original contracts or in the extensions thereof. Some of the contracts had been partially completed when extensions of time were granted routinely just as they had been granted in the past. Some of the contracts, such as the Sunnydale and Beartrap Sales, had not expired, no extensions had been granted, and the only “major” federal action involved continued supervision of the contracts or a reduction in the area to be logged. The total area in question was less than one percent of the BWCA and the location of the areas to be logged was not adjacent to any portion of the BWCA used for recreational purposes.1 Indeed, no member of the Minnesota Public Interest Research Group had ever been in or seen any of these areas of the BWCA.

The statute in question, 42 U.S.C. § 4332(2) (C), requires all agencies of the federal government to “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —(i) the environmental impact of the proposed action . . . .” The first obvious test to be made is suggested by the words of the statute. Does the contemplated action rise to the comparable status of “proposals for legislation,” with which Congress has equated “other major Federal actions”? In our opinion, the routine extension of several tim*1326ber sales and the continued supervision of others cannot logically be considered to be on the same level with “proposals for legislation.”

We recognize there is a division of authority as to what constitutes major federal action and what is significant in terms of effect on the human environment. A review of the cases cited below2 and of the cases cited in the majority opinion, indicates that it is primarily a matter of judgment as to what is major federal action, and what constitutes a significant effect on the human environment.

The actual crux of this lawsuit is not the advisability of logging the balance of these particular contracts, but rather is an effort by the plaintiffs to stop all logging in the BWCA. Their theory is that the forest should be permitted to thin itself periodically by natural means, (i. e. forest fires) rather than by commercial logging. It would appear from the opinion of the trial judge that he shares that view with the plaintiffs. In our judgment, this is a decision best left to the expertise of the Forest Service subject only to the right of Congress to change its policy as heretofore expressed in the Wilderness Act.

Neither do we agree that the trial court should have continued the injunction after the filing of the preliminary draft of the impact statement. At that point it became obvious that the Forest Service was not going to discontinue all logging in the BWCA, a decision it was certainly entitled to make under the provisions of the Wilderness Act; and the trial court should have at least accepted that determination at that time and dissolved the injunction. However, inasmuch as the majority has held that the injunction must be dissolved when the final impact statement is filed, which we understand will be in June of 1974, and inasmuch as the majority has made it clear that any test of that final impact statement must be in a separate lawsuit, no useful purpose would be served by further discussion of that part of the majority opinion.

We agree with the observations of Chief Justice Burger, sitting as a Circuit Justice, in Aberdeen & Rockfish R. Co. v. SCRAP, 409 U.S. 1207, 1217-1218, 93 S.Ct. 1, 7, 34 L.Ed.2d 21 (Burger, Circuit Justice, 1972):

Our society and its governmental instrumentalities, having been less than alert to the needs of our environment for generations, have now taken protective steps. These developments, however praiseworthy, should not lead courts to exercise equitable powers loosely or casually whenever a claim of “environmental damage” is asserted. The world must go on and new environmental legislation must be carefully meshed with more traditional patterns of federal regulation. The decisional process for judges is one of balancing and it is often a most difficult task.

We would reverse with directions to dissolve the injunction.

. See 36 C.F.R. § 293.16 (1973) which provides as follows:

Timber harvesting is permitted in the Portal Zone under conditions designed to protect and maintain primitive recreational values. Timber within 400 feet of the shorelines of lakes and streams suitable for boat or canoe travel . . . will be specifically excluded from harvesting, and timber harvesting operations will be designed to avoid unnecessary crossings of portages.

. Kisner v. Butz, 350 F.Supp. 310, 323 (N.D.W.Va.1972), [Construction of 4.3 miles of Forest Service road in national forest held not to call for environmental impact statement (EIS).J ; Maryland-National Capital Park & Planning Comm’n v. U.S. Postal Serv., 349 F.Supp. 1212, 1214 (D.D.C. 1972), [No EIS necessary for construction of bulk mail center in industrial park.]; Julis v. City of Cedar Rapids, 349 F.Supp. 88, 89-90 (N.D.Iowa 1972), [Widening street from two to four lanes for fourteen blocks in city did not require EIS.] ; Morris v. Tennessee Valley Auth., 345 F.Supp. 321, 324 (N.D.Ala.1972), [Routine raising and lowering of water level at TVA dam not covered by NEPA.]; Virginians for Dulles v. Volpe, 344 F.Supp. 573, 577-578 (E.D.Va.1972), [Allowing stretcli-jets to operate at national airport not major federal action significantly affecting the human environment. I; Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 788 (D.Maine 1972), [No EIS required for use of state park formarme assault exercises.].