F. DALE ROBERTSON, CHIEF OF THE FOREST SERVICE, ET AL., PETITIONERS v. METHOW VALLEY CITIZENS COUNCIL, ET AL. No. 87-1703 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the Petitioners In our petition for a writ of certiorari, we showed that the court of appeals has interpreted the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., to impose on federal agencies major new requirements that are not supported by the statutory language and that contradict this Court's decisions interpreting the Act. We further showed that the court of appeals has misinterpreted a Forest Service regulation governing the issuance of special use permits. The NEPA issues -- which are also raised in our petition for a writ of certiorari to the same court in Marsh v. Oregon Natural Resources Council, No. 87-1704 -- and the question of the proper interpretation of the Forest Service regulation are substantial. Respondents attempt, without success, to downplay the importance of those issues. There can be no denying that the court's decision represents a serious departure from established NEPA jurisprudence that would have broad consequences for federal projects throughout the Ninth Circuit. 1. Respondents make no attempt to defend the court of appeals' imposition of a substantive obligation on federal agencies "'to mitigate the adverse effects of major federal actions'" (Pet. App. 17a (citation omitted)). Instead, they oppose review by arguing that the parties did not raise the issue (Br. in Op. 11) and that "the court's statement was dictum, unnecessary to its holding" (ibid.). Both arguments are unpersuasive. Respondents observe that the court of appeals addressed sua sponte the question whether NEPA imposes a substantive duty to mitigate environmental harm (Br. in Opp. 10-11). They then reason that further review would be inappropriate, invoking the principle (id. at 11) that this Court "ordinarily will not decide questions not raised or litigated in the lower courts." City of Springfield v. Kibbe, No. 85-1217 (Feb. 25, 1987), slip op. 2. This Court has adopted that principle, however, as a means of restricting its review to questions that the lower courts have considered and resolved (ibid.); it does not apply that principle to deny review where a lower court explicitly addressed and decides the issue. Indeed, the fact that the court of appeals decided an important issue in respondents' favor with little prompting from respondents represents a "depart(ure) from the accepted and usual course of judicial proceedings" (Sup. Ct. R. 17.1(a)) and provides yet another reason why this Court's review would be appropriate. Respondents also err in characterizing as dictum the court of appeals' declaration that agencies must "'mitigate the adverse effects of major federal actions'" (Pet. App. 17a (citation omitted)). The court specifically stated (ibid.): Section (102) of NEPA requires that "action be taken to mitigate the adverse effects of major federal actions." Stop H-3 Ass'n v. Brinegar, 389 F. Supp. 1102, 1111 (D. Hawaii 1974), rev'd on other grounds, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976). Thus an agency cannot decide to "act now and deal with the environmental consequences later." North American Wild Sheep v. United States Dept. of Agric., 681 F.2d 1172, 1181 (9th Cir. 1982). Consequently, an EIS must include a thorough discussion of measures to mitigate the adverse environmental impacts of a proposed action. Oregon Natural Resources Council v. Marsh, 820 F.2d 1051, 1055 (9th Cir. 1987). As this passage demonstrates, the court unambiguously concluded that Section 102 of NEPA (42 U.S.C. 4332) requires federal agencies to mitigate adverse environmental effects and that, as a consequence, the agency's environmental impact statement must include a detailed discussion of mitigation. Thus, the court of appeals' declaration that agencies have a substantive duty to mitigate environmental harm is crucial to its holding and therefore establishes circuit precedent. Indeed, it is revealing that the respondents in Marsh contend that "(t)he Solicitor General's objection to a substantive duty to mitigate is more properly raised in his petition for a writ of certiorari (in Methow Valley)" (87-1704 Br. in Opp. 6 n.4). We have shown in our petition (at 16-18) and in our reply brief in Marsh (87-1704 Br. 4-5) that the court of appeals also erred in imposing a new procedural requirement that federal agencies include a detailed mitigation plan in every environmental impact statement. Respondents contend (Br. in Opp. 18-19) that under the court's holding the agency's duty to prepare a detailed mitigation plan comes into play only when the agency has relied upon the benefits of mitigation to conclude that a project's environmental effects will be acceptable. But there is no basis in the court of appeals' opinion for respondents' suggested interpretation -- which is, in any event, quite implausible since, under that interpretation, the agency's obligation to set forth a detailed mitigation plan in the environmental impact statement would depend on events that occur after the preparation of that document. /1/ 2. Respondents indicate that they stand ready to defend the court of appeals' invalidation of the Council on Environmental Quality's (CEQ's) rescission of its "worst case" analysis regulation (Br. in Opp. 15 n.14), but they maintain that the issue is not properly raised in this case. Respondents characterize the court's instruction to the Forest Service that unless the agency develops certain wildlife information on remand it must employ a worst case analysis as a "peripheral observation" (id. at 12, 13) that is not "ripe for review" (id. at 14-15). But the agency is not free to ignore the court of appeals' instruction. /2/ Should the agency find that its wildlife study is inconclusive, it must then comply with the court's mandate to prepare a "worst case" analysis -- notwithstanding the CEQ's rescission of that regulatory requirement. While the worst case issue is, perhaps, more unavoidably presented in Marsh v. Oregon Natural Resources Council, supra, the issue is properly raised here as well. For the reasons we have stated in our petition (at 18-21) in this case, and in our petition (at 15-18) and reply brief (at 5-8) in Marsh, this matter was wrongly decided by the court of appeals in both cases and warrants this Court's review. 3. As we have shown in our petition (at 21-23), this Court should also review the Ninth Circuit's related holding that Forest Service regulations require the agency to incorporate a complete mitigation plan into its special use permits. /3/ Respondents appear to agree (Br. in Opp. 23) with the court of appeals that the regulations require a fully developed mitigation plan for both off-site and on-site impacts. That result incorrectly imports the court of appeals' mistaken vision of NEPA's requirements into the Forest Service's regulations governing special use permits. The Forest Service regulations at issue here require "measures and plans for the protection and rehabilitation of the environment during construction, operation, maintenance, and termination of the project" (36 C.F.R. 251.54(e)(4)) and "(t)erms and conditions which will * * * minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise (sic) protect the environment" (36 C.F.R. 251.56(a)(1)(ii)). They do not refernce NEPA's requirements, nor do they independently specify the detail necessary for compliance or the extent to which off-site or third-party mitigation measures must be incorporated. In this case, the special use permits in fact contained a variety of mitigation measure (see Pet. 22 n.25; Br. in Opp. 5-6 n.5). The court of appeals had no authority to rewrite the agency's regulations in order to find those measures inadequate. For the reasons stated above and in the petition, it is therefore respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General JUNE 1988 /1/ Moreover, respondents' contention incorrectly characterizes how the Forest Service used its environmental impact statement -- the Early Winters Study -- in this case. The Early Winters Study included a thorough description of the environmental effects of the proposed project alternatives (at 65-145), and then identified certain means that would be available to ameliorate those effects (at 14-18, 68-69, 77-78). The Forest Service ultimately approved on the Early Winters Study's project alternatives and directed the development of mitigation measures described in the study. But the Forest Service did not base its approval of that project alternative on the guaranteed success of those mitigation measures, and there is no basis for respondents to impute that thought process to the agency. See Pet. App. 63a-71a). the Forest Service finds that the new comprehensive study of the mule deer still provides incomplete information, a worst-case analysis would be required for the areas in which information is lacking." /3/ Respondents urge (Br. in Opp. 22) that this issue is no longer subject to this Court's review because the Forest Service will have to issue a new permit after it has completed certain revisions to the Early Winters Study. As an initial matter, it is not clear that a new special use permit would have to be issued. Only if the Regional Forester determines to change his decision would a new permit be necessary. Moreover, even if the revisions to the Early Winters Study would result in issuance of a new permit, there is no reason to expect that those revisions would lead the Forest Service to revise the mitigation conditions that were the subject of the court of appeals' holding.