GIBSON, Circuit Judge.
The plaintiff, Minnesota Public Interest Research Group (MPIRG), filed a complaint asking for declaratory and injunctive relief against further logging in the Boundary Waters Canoe Area (BWCA). It also requested application of the Wilderness Preservation System Act of 1964,
The District Court, after a hearing on the merits, enjoined the defendants from logging "in those areas of the active timber sales on the BWCA which are contiguous with the main virgin forest areas of the BWCA pending the Forest Service's completion of its new BWCA Management Plan and accompanying impact statement."
Crucial to our determination of the issue raised is whether or not the modification of existing contracts for cutting of virgin timber, the extension of some of these contracts, and the supervision of the day-to-day activities in the operation of the timber cutting contracts in the BWCA area constitute major federal action significantly affecting the quality of the human environment within the purview of the National Environmental Policy Act of 1969.
A further issue held in abeyance by the court is whether the Wilderness Act precludes the Forest Service from allowing any logging operations at all in the BWCA. The District Court, after a plenary hearing, felt that the Forest Service possibly would, in reviewing its entire management policy, forego or prohibit the cutting of timber in the BWCA area, thus mooting this issue ; and if not, the court reserved jurisdiction to pass upon the legal issue of whether the Wilderness Act precludes timber cutting and logging activities in the wilderness area of the BWCA.
The BWAC, located in northern Minnesota, is a unique natural resource with some 1,060,000 acres of lakes, streams, and timber, which along with the adjoining Canadian Quetico-Superior forest forms the only canoe wilderness area in the world. The area contains more than 1,000 lakes larger than 10 acres, either connected by streams or convenient portages that allow for easy canoe travel through the wilderness area.
The BWCA is administered by the United States Forest Service as a Wilderness Area and as a part of the Superior National Forest. The Draft Management Plan of the Forest Service for the BWCA refers to the area as "unique, pristine, endangered, rugged, primitive, beautiful and fragile." Highly prized by many, including plaintiff
This lawsuit was commenced November 24, 1972, by MPIRG, an association of students at various Minnesota colleges and universities. MPIRG requested a temporary and permanent injunction against any further logging in the BWCA until the Forest Service completes an Environmental Impact Statement (EIS) complying with the requirements of NEPA. There was a separate claim that logging activities should be banned in the BWCA as incompatible with the wilderness values protected by the Wilderness Act.
These appeals present a question of the applicability of NEPA to private logging operations carried out pursuant to pre-NEPA Forest Service timber sales within the BWCA. Specifically in question is § 102(2) (C) of NEPA
The Superior National Forest contains approximately 3 million acres, some 1,060,000 of which are included in the BWCA. Pursuant to a regulation of the Secretary of Agriculture,
Timber harvesting has been a source of public controversy surrounding the BWCA. In November, 1971, soon after its formation, MPIRG requested the Forest Service to prepare an EIS considering the effects of logging in the BWCA and to halt all logging in the BWCA until the statement was completed. MPIRG was informed that a new BWCA management plan was under consideration and that the EIS being prepared in conjunction with the new plan would be ready in April, 1972. This date was later changed to April, 1973, but to satisfy MPIRG's objections a preliminary environmental analysis covering logging was to be made available in August, 1972, for public review. Dissatisfied with this preliminary analysis, MPIRG attempted again to have the Forest Service suspend logging in the BWCA until the EIS was filed and also requested the Forest Service to compensate the private defendants with timber outside the BWCA. This suggestion was rejected by the Forest Service on November 15, 1972, and MPIRG filed this suit on November 24, 1972.
The activities of the Forest Service concerning these 11 pre-NEPA timber sales fall roughly into three categories —contract extensions, contract modifications, and the administrative actions required by the contracts.
On six of these sales,
Modifications, changes in the land area in which logging could occur, were negotiated by the Forest Service in 7 of the sales contracts after January 1, 1970.
No environmental impact statements have been prepared for any of the sales, whether unchanged, modified, or extended after January 1, 1970.
I. MAJOR FEDERAL ACTION
Does the Forest Service's involvement in these timber sales constitute major federal action significantly affecting the quality of the human environment? Section 102(2)(C) requires preparation of an EIS for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." (emphasis added). What constitutes other major federal action is not defined in the Act, nor is the legislative history very illuminating.
The threshold question as to whether there is a major federal action requiring NEPA compliance is not presented in the majority of cases ; there is little question that when the federal government commits millions of dollars to build dams, nuclear power plants, or highways that there is a major federal action. The question presented by the instant case is not so clear-cut ; these actions of the Forest Service cannot be quantified in terms of dollars to be spent or tons of earth to be moved.
A. Review of NEPA Applicability
First, we are faced with the Forest Service's determination that there has been no major federal action. It is generally accepted that the involved federal agency has the responsibility of making the threshold determination as to the applicability of NEPA.
This is the standard this circuit has adopted in reviewing a substantive decision to proceed with a project after the agency has prepared an adequate EIS considering the environmental effects. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 300 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). See also, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973) ; Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). The defendants argue that this standard should be applied to the threshold determination of the applicability of NEPA.
The Second Circuit, in Hanly v. Kleindienst, 471 F.2d 823, 829-830 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290,
NEPA is not only an environmental full-disclosure law, but was also intended to effectuate substantive changes in decision making. Environmental Defense Fund v. Corps of Engineers, supra at 297. We are primarily concerned here with the action-forcing provisions of Sec. 102(2) (C), for without the full disclosure required by NEPA for major federal actions, there exists no sound basis to evaluate the environmental aspects of a project. And without this basis for evaluation, the is no way to determine whether a substantive decision to proceed is arbitrary and capricious.
Section 102(1) of the Act contains a Congressional direction that environmental factors be considered "to the fullest extent possible." An initial decision not to prepare an EIS precludes the full consideration directed by Congress. In view of the concern for environmental disclosure present in NEPA, the agency's discretion as to whether an impact statement is required is properly exercised only within narrow bounds. Action which could have a significant effect on the environment should be covered by an impact statement.
An agency decision concerning NEPA requirements is not one committed to the agency's discretion by law within the meaning of the APA, 5 U.S.C. § 701 et seq.
B. Was The Forest Service Determination Reasonable?
The CEQ Guidelines state:
The Guidelines further provide:
The defendants argue that the actions of the Forest Service must be isolated from the subsequent impact on the environment from logging operations. They assert that the statutory phrase "major Federal action significantly affecting the quality of the human environment" creates two tests. First, it must be determined whether there is a major federal action ; next, if there is a major action, the impact of that action on the environment must be determined. This interpretation was adopted in Hanly I, supra at 644.
Accord, Julis v. City of Cedar Rapids, Iowa, 349 F.Supp. 88 (N.D.Iowa 1972). But cf. Wyoming Outdoor Coordinating Council v. Butz, supra, rev'g 359 F.Supp. 1178 (D.Wyo.1973) (which adopted the Hanly I rationale) ; Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972).
To separate the consideration of the magnitude of federal action from its impact on the environment does little to foster the purposes of the Act, i. e., to "attain the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable and unintended consequences."
Looking now to the timber sales in question, it was established in the District Court that there is a significant effect on the BWCA from these logging operations. These effects are fully detailed in the opinion of the District Court.
The Forest Service has been significantly involved with these timber sales since January 1, 1970, the effective date of NEPA. Its contracts require it to, inter alia, approve locations of timber roads, logging camps and buildings ; mark the trees to be cut ; and negotiate payment for the timber cut. In addition, it extended six of the sales after the effective date of NEPA and made contract modifications with the consent of the purchasers on seven of the sales.
Further, there is a monetary involvement. The District Court found that the revenue the Forest Service receives from its timber sales in the BWCA is clearly inadequate to finance
II. PROPRIETY OF THE INJUNCTION
Upon determining that NEPA was violated, the District Court enjoined timber cutting on all or part of seven active timber sales until the required EIS was prepared and filed. The private defendants argue that an injunction should not have been granted. In addition, in No. 73-1753, Consolidated Papers appeals the District Court's refusal to dissolve the injunction upon its later motion.
Defendants do not challenge the power of the District Court to enjoin activities pending the filing of an EIS ; it is clear that the District Court does have that power. Bradford Township v. Illinois State Toll Highway Authority, 463 F.2d 537, 539 (7th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 518, 34 L.Ed.2d 499 (1972). Cf. Silva v. Romney, 473 F.2d 287 (1st Cir. 1973). The question then is whether the District Court abused its discretion in granting the temporary injunction. Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ; E. W. Bliss Co. v. Struthers-Dunn, Inc., 408 F.2d 1108, 1113 (8th Cir. 1969) ; 7 Moore's Federal Practice ¶ 65.04  (2d ed. 1974).
We find no abuse of discretion here. Plaintiff established a violation of NEPA. If the cutting were allowed to continue pending preparation of the EIS regarding the effects of logging, the District Court would have been engaging in an exercise in futility, because any damage that might have been avoided after study would have irreversibly occurred. The District Court weighed the possible damage to each defendant from granting the injunction and concluded that whatever harm suffered would be slight. On balance, it appears to us that the District Court properly exercised its discretion to maintain the status quo pending the preparation and filing of the necessary EIS.
After the Forest Service announced the filing of a draft EIS covering the draft BWCA Management Plan, which would continue to allow timber cutting, Consolidated Papers moved the court to lift its injunction on the Old Road Sale, asserting that the equities
We cannot agree. The District Court's injunction is conditioned upon the Forest Service's compliance with NEPA. Compliance has not been made until the Forest Service prepares and files a final EIS assessing the impact of logging upon the environment.
Sierra Club v. Mason, 365 F.Supp. 47 (D.Conn.1973).
Until the final statement has been filed it would only serve to give a judicial recognition to the "futility" of the NEPA process if the District Court dissolved its injunction on the basis of the draft statement. That would constitute an admission that the final decision has already been made without consideration of the public reaction and comments to the draft statement. Although such may be the reality, it should not be the appearance of the NEPA review process. There was no abuse of discretion in refusing to dissolve the injunction.
Defendants also argue that MPIRG is guilty of laches. This doctrine, while recognized as available, has received a lukewarm reception in suits presenting environmental questions, for not only will others than the plaintiff suffer the possible adverse environmental effects, but the agency will escape compliance with NEPA, a result not to be encouraged. See, Environmental Defense Fund v. T.V.A., supra at 1182-1183 ; Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972) ; City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y. 1972). Moreover, here the District Court found no unreasonable delay, and its conclusion is warranted by the record.
Defendants assert that MPIRG lacks standing, in that it has alleged no "injury in fact" sufficient to meet the constitutional standing requirement. The environmental interests asserted by MPIRG are well within the zone of interests protected by NEPA. United States v. SCRAP, 412 U.S. 669, 686 n. 13, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
We think that MPIRG has shown facts establishing that it has more than a mere interest in the outcome of the litigation.
United States v. SCRAP, supra at 689 n. 14.
MPIRG has shown that some of its members use the BWCA for wilderness recreational opportunities it affords. It has demonstrated an effect upon the wilderness qualities of the BWCA from the logging operations. This suffices to show that its members have suffered or will suffer the requisite injury in fact to support standing. MPIRG may represent its injured members in a proceeding for judicial review. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 620 (1972). We therefore agree with the District Court that MPIRG has standing to litigate the questions presented.
V. THE WILDERNESS ACT
The defendants have attempted to demonstrate in their briefs that the Wilderness Act specifically provides for timber cutting within the BWCA. This claim is premature, and we decline to address ourselves to its merits in this proceeding. The District Court held the claims as they relate to the Wilderness Act in abeyance until the Forest Service completes action on its new BWCA Management Plan and accompanying impact statement.
The judgment of the District Court granting the temporary injunction pending the completion and filing of the EIS required by § 102(2)(C) of NEPA is affirmed.
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.
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 timber
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 below
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) :
We would reverse with directions to dissolve the injunction.
Citizens to Preserve Overton Park v. Volpe, supra at 416. The Act involved in Overton Park was Sec. 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f).
By the above statement, we intimate no opinion as to whether or not the Forest Service in discharging its statutory responsibilities will permit timber cutting as part of its new BWCA Management Plan.