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Show WIR0NPJ1ENT REPORTER °™s\°NS >ECEMBER 7. 1973 THE BUREAU OF NATIONAL AFFAIRS NO. 32 OPINIONS IN THIS ISSUE T o b e C i t e d 6 E RC FOREST SERVICE-MO- Page NONGAHELA FOREST- CLEARCUTTING DC WVa: Organic Act of 1897, 16 U.S.C. Sec. 473-482, forbids U.S. Forest Service's sale of Monon-gahela National Forest timber that will be harvested by clearcutting, and requires Service to sell only timber that is dead, matured, or large, to designate each such area of timber, to mark each indiv idual tree authorized for sale, and to insure removal of all timber cut 1016 NEPA-HELIUM CONTRACTS- JUDICIAL REVIEW \ CA 10: Department of Interior's 1 preparation of environmental impact statement concerning termination of helium purchase contracts is not "agency action" subject to federal district court review under Administrative Procedure Act's "arbitrary- and capricious" standard, but is subject to review only as to whether statement constitutes objective good faith compliance with Act 1001 NEPA-TELLICO DAM-JUDICIAL REVIEW DC ETenn: Federal district court, in deciding whether Tennessee Valley Authority's Tellico dam project complied with National Environmental Policy Act, must consider whether TVA's computation Page of project's environmental costs and benefits was arbitrary in light of standards established by Act, although court may not review TVA's computation of project's electric power and flood control benefits 1008 F WPCA-OIL SPILL REPORT- IMMUNITY DC NJ: Section 311 (b)(5) of Federal Water Pollution Control Act, which requires "person in charge" of oil facility to report oil spill but bars use of that report in any criminal proceeding brought against such person, precludes Federal Government's use, in criminal proceeding brought against tank storage facility, of spill report made by facility employee, since grant of immunity to "persons in charge" encompasses corporations as well as individuals H 1024 RIVERS AND HARBORS ACT-DREDGE P E R M I T - JUDICIAL REVIEW CA 5: Administrative Procedure Act's "arbitrary and capricious" standard, 5 U.S.C. Sec. 706(2)(A), rather than "substantial evidence" standard, 5 U.S.C. Sec. 706(2)(E). is proper standard to be used by federal district court reviewing Corps of Engineers' denial of Florida apartment developer's application for Rivers and Harbors Act dredge and fill permit 1028 TABLE OF CASES .,r T 1028 Di Vosta v. Lee ' i nno EDFv.TVA : - • • \U 0\l Izaak Walton League v. Butz ^ National Helium v. Morton • .-74 U.S. v. General American ull TJ^xt of Decisions of the Federal and State Courts Involving Environmental Law NATIONAL HELIUM v. MORTON U. S. Court of Appeals Tenth Circuit N A T I O N A L H E L I U M CORPORATION, Plaintiff-Appellee, and PHILLIPS PETROLEUM COMPANY and CITIES SERVICE HELEX, INC., Inter-venor- Plaintiff-Appellees, v. ROGERS C. B. MORTON, Secretary of the Interior, and ELBURT F. OSBORN, Director, Bureau of Mines, Department of the Interior, Nos. 73- 1169 and 73-1449, October 19, 1973 LAND 1. Federal, state, and local regulation - Administrative agencies - In general (§8.601) Federal, state, and local regulation - Administrative agencies -Judicial review - In general (§8.6811) Court jurisdiction and procedure - In general (§15.01) Federal district court has jurisdiction under N-tional Environmental Policy Act to hear s i r charging that Department' of Interior failed to comply with Act in terminating heliuir, f'.rchase contracts, although court's review * termination is strictly limited to determining whether department complied with Act. 2. Federal, state, and local regulation - Administrative agencies - In general (§8.601) Federal, state, and local regulation - Administrative agencies - Judicial review - In general (§8.6811) Department of Interior's preparation of environmental impact statement concerning termination of helium purchase contracts is not "agency action" subject to federal district court review under Administrative Procedure Act's "arbitrary and capricious" standard, but is subject to review only as to whether statement constitutes objective good faith compliance with National Environmental Policy Act. 3. Federal, state, and local regulation - Administrative agencies - In general (§8.601) National Environmental Policy Act is satisfied by Department of Interior's environmental impact statement that considers environmental impact of termination of helium purchase contracts, that discusses unavoidable adverse environmental effects of termination, that considers alternatives to termination, that discusses future needs and supplies of helium, and that weighs current costs of termination as opposed to possible future costs. STATUTES Federal - National Environmental Policy Act (§95.011) Construed. Raymond D. Battocchi, Department of Justice, Washington, D. C. (Harlington Wood, Jr., assistant attorney general, Irving Jaffe, acting assistant attorney general, Morton Hollander, and Irwin Goldbloom, Department of Justice, Washington; Robert J. Roth, U. S. attorney, Wichita, Kans., on the brief), for defendants- appellants. Robert L. Ackerly, of Sellers, Conner &- Cuneo, Washington (Emmet A. Blaes, of Jochems, Sargent & Blaes, Wichita; Raymond S. E. Pushkar, of Sellers, Conner & Cuneo, Washington; and Wendell J. Doggett, Houston, Tex., on the brief), for plaintiff-appellee National Helium. William H. Allen, of Covington & Burling, Washington (Joseph W. Kennedy, of Morris, Lain, Evans, Brock & Kennedy, Wichita, and Eugene D. Gulland, of Covington & Burling, Washington, on the brief), for intervenor-plaintiff- appellee Phillips Petroleum. Daniel R. Hopkins, Oklahoma City, Okla. (William J. Sears, Oklahoma City; Mark H. Adams. Mark H. Adams, II, and William S. Richardson, of Adams, Jones, Robinson, & Malone, Wichita; and R. Price Howard, Bar-tlesville, Okla., on the brief), for intervenor-plaintiff- appellee Cities Service Helex. Full Text of Opinion Before BREITENSTEIN, HILL and DOYLE, Circuit Judges. 1001 |
