Nat'l Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). · Go Syfert
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Nat'l Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). Cases Citing This Book View Copy Cite
164 citation events (3 in the last 25 years) across 39 distinct courts.
Strongest positive: Oceanport Industries, Inc. v. Wilmington Stevedores, Inc. (del, 1994-01-26)
Treatment trajectory · 1971 → 2026 · click a year to view as-of
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Statutes interpreted (leading-cases list)
#7 50 U.S.C. § 167m cited 1× in this case · 9 total citations of statute #1 50 U.S.C. § 167a(a) cited 1× in this case · 1 total citations of statute #19 50 U.S.C. § 167 cited 1× in this case · 34 total citations of statute
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Oceanport Industries, Inc. v. Wilmington Stevedores, Inc.
Del. · 1994 · confidence medium
“Courts should be reluctant to dissect a plaintiffs motivations for bringing a ... claim. ‘It is not part of [the] court’s function to weigh or proportion’ conflicting monetary and environmental interests.” Id. at 295 (citing National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971)).
cited Cited as authority (rule) Overseas Shipholding Group, Inc. v. Skinner
D.D.C. · 1991 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971).
discussed Cited as authority (rule) Region 8 Forest Service Timber Purchasers Council v. Alcock
N.D. Ga. · 1990 · confidence medium
See North Side Lumber Co. v. Block, 753 F.2d 1482, 1485-86 (9th Cir.1985), cert. den., 474 U.S. 919 , 106 S.Ct. 248 , 88 L.Ed.2d 256 (1985); Mega- *271 pulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C.Cir.1982); National Helium Corporation v. Morton, 455 F.2d 650, 654 (10th Cir.1971).
discussed Cited as authority (rule) League Of Women Voters Of Tulsa v. United States Corps Of Engineers (2×) also: Cited "see"
10th Cir. · 1984 · confidence medium
There is however a balancing of possible cost/value consequences with the impact. 44 As we said in National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir.), "[T]he mandates of the NEPA pertain to procedure and do not undertake to control decision making within the departments." A decision already made in accordance with the procedural requirements of NEPA (which are the only requirements) or before the effective date of NEPA are not reopened for an examination of alternatives or anything else.
discussed Cited as authority (rule) League of Women Voters of Tulsa, Inc. v. United States Corps of Engineers (2×) also: Cited "see"
10th Cir. · 1984 · confidence medium
As we said in National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir.), “[T]he mandates of the NEPA pertain to procedure and do not undertake to control decision making within the departments.” A decision already made in accordance with the procedural requirements of NEPA (which are the only requirements) or before the effective date of NEPA are not reopened for an examination of alternatives or anything else.
discussed Cited as authority (rule) American Motorcyclist Ass'n v. Watt
C.D. Cal. · 1981 · confidence medium
See, e.g., Realty Income Trust, supra, 564 F.2d at 452 (erection of new office building alleged to cause loss of rental income and injury to the environment due to impact on vehicular and pedestrian traffic); National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971) (helium extractor claimed that Secretary of the Interior’s cancellation of a helium conservation contract would result in economic harm to it and depletion of the nation’s supply of helium); Mobil Oil Corp. v. F. T.
discussed Cited as authority (rule) Pacific Legal Foundation v. Cecil B. Andrus
6th Cir. · 1981 · confidence medium
See Vermont Yankee, supra, 435 U.S. at 558 , 98 S.Ct. at 1219 ; Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U.S. 289, 319 , 95 S.Ct. 2336, 2355 , 45 L.Ed.2d 191 (1975); State of Wyoming v. Hathaway, 525 F.2d 66, 71 (10th Cir. 1975), cert. denied, 426 U.S. 906 , 96 S.Ct. 2226 , 48 L.Ed.2d 830 (1976); Swain v. Brinegar, 517 F.2d 766, 775 (7th Cir. 1975); Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975); State of Louisiana v. FPC, supra, 503 F.2d at 875 ; Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 19…
discussed Cited as authority (rule) Environmental Defense Fund, Inc. v. Cecil D. Andrus
10th Cir. · 1980 · confidence medium
We there also stated: 44 As we view it then the purposes of the NEPA are realized by requiring the agencies to assess environmental consequences in formulating policies, and by insuring that the governmental agencies shall pay heed to environmental considerations by compelling them to follow out NEPA procedures. 45 455 F.2d at p. 656. 46 In Save Our Invaluable Land (Soil), Inc. v. Needham, 542 F.2d 539 (10th Cir. 1976), cert. denied, 430 U.S. 945 , 97 S.Ct. 1580 , 51 L.Ed.2d 792 (1977), we said: 47 Judicial review of an EIS is limited to a consideration of the following: (1) does the EIS discu…
discussed Cited as authority (rule) Jicarilla Apache Tribe v. Andrus
D.N.M. · 1980 · confidence medium
The court said: “But it is their asserted representation of the public interest — which from their personal standpoint is admittedly less important than their private financial stake— which in final analysis justifies their seeking judicial review.” 455 F.2d at 654.
discussed Cited as authority (rule) Environmental Defense Fund, Inc. v. Andrus
10th Cir. · 1980 · confidence medium
We there also stated: As we view it then the purposes of the NEPA are realized by requiring the agencies to assess environmental consequences in formulating policies, and by insuring that the governmental agencies shall pay heed to environmental considerations by compelling them to follow out NEPA procedures. 455 F.2d at p. 656.
discussed Cited as authority (rule) Cape Fox Corp. v. United States (2×)
D. Alaska · 1978 · signal: cf. · confidence medium
Cf. National Helium Corp. v. Morton, 455 F.2d 650, 654 (10th Cir. 1971). 12 .
cited Cited as authority (rule) Monarch Chemical Works, Inc. v. Exon
D. Neb. · 1978 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971).
cited Cited as authority (rule) Hiatt Grain & Feed, Inc. v. Bergland
D. Kan. · 1978 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971); Chamber of Commerce of U. S. v. Dept. of Interior, 439 F.Supp. 762, 766 (D.D.C.1977); City of Topeka, v. G.
cited Cited as authority (rule) Chamber of Commerce of US v. Dept. of Interior
D.D.C. · 1977 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971).
discussed Cited as authority (rule) Mobil Oil Corp. v. Federal Trade Commission (2×) also: Cited "see"
S.D.N.Y. · 1977 · confidence medium
As was noted with respect to plaintiffs in National Helium Corp. v. Morton, 455 F.2d 650, 654 (10th Cir. 1971), it may be “ ‘passing strange’ to see the giants of the oil and gas industry representing the public interest, but . . . they [are] not per se disqualified to occupy this role . . .
cited Cited as authority (rule) Cities Service Helex, Inc. v. United States
Ct. Cl. · 1976 · confidence medium
National Helium Corp. v. Morton, 455 F. 2d 650, 653-54, 657 (10th Cir. 1971). 7 In May 1972 a draft environmental impact statement was ready for comment and announced in the Federal Register.
cited Cited as authority (rule) Essex County Preservation Association on Behalf of Itself and Its Members v. Bruce Campbell, as Commissioner, Massachusetts Department of Public Works
1st Cir. · 1976 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971), mandated by NEPA.
cited Cited as authority (rule) State Of Wyoming v. Hathaway
10th Cir. · 1975 · confidence medium
There is no indication that Congress in enacting the NEPA intended to impose extensive procedural impediments to Department action. 455 F.2d at 656-57.
cited Cited as authority (rule) Wyoming v. Hathaway
10th Cir. · 1975 · confidence medium
There is no indication that Congress in enacting the NEPA intended to impose extensive procedural impediments to Department action. 455 F.2d at 656-57.
discussed Cited as authority (rule) Sierra Club v. Morton
N.D. Cal. · 1975 · confidence medium
See Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123 , 1138-1140 (5th Cir. 1974); Sierra Club v. Froehlke, 486 F.2d 946, 953 (7th Cir. 1973); Conservation Council v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 300-301 (8th Cir. 1972), cert. denied, 412 U.S. 931 , 93 S.Ct. 2749 , 37 L.Ed.2d 160 (1973); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971); Calvert Cliffs’ Coordinating Comm. v. AEC, 146 U.S.App.D.C. 33 , 449 F.2d 1109 ,1115 (1971); Environmental Defense Fund v. TVA, 371 F.…
discussed Cited as authority (rule) Essex County Preservation Ass'n v. Campbell
D. Mass. · 1975 · confidence medium
The Act mandates that “action can be taken only following complete awareness on the part of the actor of the environmental consequences of his action. .” National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971).
discussed Cited as authority (rule) National Wildlife Federation v. Morton
D.D.C. · 1975 · confidence medium
Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 , 822 n. 13 (9th Cir. 1973), cert. denied, 416 U.S. 974 , 94 S.Ct. 2002 , 40 L.Ed.2d 564 (1974) ; Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973) ; National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971) ; Upper Pecos Ass’n v. Stans, 452 F.2d 1233, 1236 (10th Cir. 1971), vacated and remanded on other grounds, 409 U.S. 1021 , 93 S.Ct. 458 , 34 L.Ed.2d 313 (1972).
discussed Cited as authority (rule) Sierra Club v. Rogers C. B. Morton, Shell Oil Company, Intervenors-Appellees
5th Cir. · 1975 · confidence medium
Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2nd Cir. 1972); accord, Committee of Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385 , 463 F.2d 783 (1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971); Calvert Cliffs’ Coord.
discussed Cited as authority (rule) Maine Central Railroad v. Interstate Commerce Commission
D.D.C. · 1975 · confidence medium
This Court has jurisdiction to grant injunctive relief, or relief in the nature of mandamus, under 28 U.S.C. §§ 1331 and 1361; 5 U.S.C. §§ 701-706 ; and 42 U.S.C. §§ 4321 et seq., the National Environmental Policy Act of 1969, Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.) cert. denied, 409 U.S. 849 , 93 S.Ct. 56 , 34 L.Ed.2d 90 (1972); Harlem Valley Transportation Assn. v. Stafford, 500 F.2d 328, 334 (2d Cir. 1974); Jones v. District of Columbia Redevelopment Land Agency, 162 U.S.App.D.C. 366 , 499 F.2d 502, 511-12 (1974); National Helium Corp. v. Morton, 455 F.2d 650, 654-…
discussed Cited as authority (rule) Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army
5th Cir. · 1974 · confidence medium
Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973); 30 National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971). 31 The Second Circuit has not dealt directly with this issue.
discussed Cited as authority (rule) Environmental Defense Fund, Inc. v. Corps Of Engineers Of The United States Army
5th Cir. · 1974 · confidence medium
Environmental Defense Fund, Inc. v. Armstrong, 487 F.2d 814 (9th Cir. 1973); 30 National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971). 31 The Second Circuit has not dealt directly with this issue.
discussed Cited as authority (rule) Students Challenging Regulatory Agency Procedures v. United States (2×)
D.D.C. · 1974 · confidence medium
But NEPA mandates a rather finely tuned and `systematic' balancing analysis in each instance." Calvert Cliffs' Coordinating Committee v. USAEC, supra note 23, 146 U.S.App.D.C. at 37 , 449 F.2d at 1113 . [48] See, e. g., Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1285-1286 (1973); National Helium Corp. v. Morton, 10 Cir., 455 F.2d 650, 656-657 (1971); City of New York v. United States, supra note 26, 344 F.Supp. at 939-940 . [49] We further think that a strong argument could be made that oral public hearings should be held based on the CEQ advisory guidelines which stat…
examined Cited as authority (rule) National Helium Corporation v. Morton (3×) also: Cited "see"
10th Cir. · 1973 · confidence medium
In this particular case this court expressed the opinion that an ultimate resolution of the issues involved in this case was urgent and should be expedited. 455 F.2d at 657.
examined Cited as authority (rule) National Helium Corp. v. Morton (3×) also: Cited "see"
10th Cir. · 1973 · confidence medium
In this particular case this court expressed the opinion that an ultimate resolution of the issues involved in this case was urgent and should be expedited. 455 F.2d at 657.
discussed Cited as authority (rule) Wyoming Outdoor Coordinating Council v. Earl L. Butz, in His Official Capacity as Secretary of the United States Department of Agriculture (2×) also: Cited "see"
10th Cir. · 1973 · confidence medium
National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir.); Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33 , 449 F.2d 1109 , 1114; Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 788 (D.
discussed Cited as authority (rule) Monroe County Conservation Council, Inc. v. Volpe
2d Cir. · 1972 · confidence medium
Sec. 138 . 2 We are satisfied that it falls far short of the NEPA requirements, as well as the Council on Environmental Quality Guidelines, 36 Fed.Reg. 7724-7729 (1971), and the Department of Transportation Order 5610.1 (October 7, 1970), designed to implement NEPA. 12 The primary purpose of the impact statement is to compel federal agencies to give serious weight to environmental factors in making discretionary choices, see, Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C.Cir.1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10 Cir. 1971); Calvert Cliffs…
discussed Cited as authority (rule) Monroe County Conservation Council, Inc. v. Volpe
2d Cir. · 1972 · confidence medium
The primary purpose of the impact statement is to compel federal agencies to give serious weight to environmental factors in making discretionary choices, see, Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C.Cir.1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10 Cir. 1971); Calvert Cliffs’ Coord.
discussed Cited as authority (rule) East Oakland-Fruitvale Planning Council, a Nonprofit California Corporation v. Donald Rumsfeld, Director, Office of Economic Opportunity (2×)
9th Cir. · 1972 · confidence medium
Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371 , 424 F.2d S59, 874-875 (1970) (whether the Federal Aviation Administration violated its own regulations in awarding a government contract for instrument landing systems) ; National Helium Corp. v. Morton, 455 F.2d 650, 654 (10th Cir. 1971) (whether the Secretary of Interior complied with the National Environmental Protection Act, 42 U.S.C. § 4321 et seq., in terminating a government contract for the purchase of helium) ; Parker v. United States, 448 F.2d 793, 796-797 (10th Cir. 1971) (whether the Secretary of Agriculture violated �…
cited Cited "see" GREAT SALT LAKE MINERALS AND CHEMICALS v. Marsh
D. Utah · 1984 · signal: see · confidence high
See National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971); See also Realty Income Trust v. Eckerd, 564 F.2d 447, 452-543 (D.C.Cir.1977).
cited Cited "see" Great Salt Lake Minerals & Chemicals Corp. v. Marsh
D. Utah · 1984 · signal: see · confidence high
See National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971); See also Realty Income Trust v. Eckerd, 564 F.2d 447, 452-543 (D.C.Cir.1977).
cited Cited "see" Gerosa Inc. v. Dole
S.D.N.Y. · 1983 · signal: accord · confidence high
Accord, National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.1971).
discussed Cited "see" United States v. Scott v. Brown
10th Cir. · 1982 · signal: see · confidence high
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 , 91 S.Ct. 814, 820 , 28 L.Ed.2d 136 ; see National Helium Corp. v. Morton, 455 F.2d 650 , 655 n. 12 (10th Cir.); Parker v. United States, 448 F.2d 793, 795 (10th Cir.), cert. denied sub nom.
discussed Cited "see" Public Serv. Co. of Colorado v. Andrus
D. Colo. · 1977 · signal: see · confidence high
The declared purpose of the Act was to foster a national policy encouraging productive and enjoyable harmony and balance between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and the biosphere; to stimulate the health and welfare of man; and to enrich the understanding of the ecological systems and natural resources important to the nation; See, National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971); and Daly v. Volpe, 376 F.Supp. 987 (W.D.Wash.1974), aff’d, 514 F.2d 1106 (9th Cir. 1975).
discussed Cited "see" John D. Robinson, Jr. v. John A. Knebel, Etc.
8th Cir. · 1977 · signal: see · confidence high
See National Helium Corp. v. Morton, 455 F.2d 650, 655 (10th Cir. 1971); cf. Environmental Defense Fund v. TVA, 468 F.2d 1164, 1171 (6th Cir. 1972) (landowner in area condemned by TV A found to have standing under NEPA); Smith v. City of Cookeville, 381 F.Supp. 100, 102 (M.D.Tenn.1974) (owners of property condemned for use in recreation area found to have standing).
discussed Cited "see" Natural Resources Defense Council, Inc. v. The United States Nuclear Regulatory Commission
2d Cir. · 1976 · signal: see · confidence high
This reasonable latitude extends to the methods which the agency employs and to the scope of proceedings which the agency will undertake; id; see also The Permian Basin Area Rate Cases, 390 U.S. 747, 776 , 88 S.Ct. 1344 , 20 L.Ed.2d 312 (1968). 64 NEPA does not require extensive administrative proceedings; neither the Administrative Procedure Act nor the environmental laws compel an agency to appoint an examiner and conduct hearings; see National Helium Corp. v. Morton, 455 F.2d 650, 656-57 (10th Cir. 1971).
discussed Cited "see" Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission
2d Cir. · 1976 · signal: see · confidence high
NEPA does not require extensive administrative proceedings; neither the Administrative Procedure Act nor the environmental laws compel an agency to appoint an examiner and conduct hearings; see National Helium Corp. v. Morton, 455 F.2d 650, 656-57 (10th Cir. 1971).
cited Cited "see" The Scenic Rivers Association Of Oklahoma v. James T. Lynn
10th Cir. · 1975 · signal: see · confidence high
See National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir.1971).
cited Cited "see" Gifford-Hill & Company, Inc. v. Federal Trade Commission
D.C. Cir. · 1975 · signal: see · confidence high
See 455 F.2d at 654 ; 326 F.Supp. at 154 .
cited Cited "see" Scenic Rivers Ass'n v. Lynn
10th Cir. · 1975 · signal: see · confidence high
See National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971).
discussed Cited "see" Don Sabin v. Earl H. Butz, Secretary of Agriculture, and Edward P. Cliff, Chief, U. S. Forest Service (2×)
10th Cir. · 1975 · signal: see · confidence high
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 , 91 S.Ct. 814 , 28 L.Ed.2d 136 ; see National Helium Corp. v. Morton, 455 F.2d 650 , 655 n. 12 (10th Cir.); Parker v. United States, 448 F.2d 793, 795 (10th Cir.), cert. denied sub nom.
discussed Cited "see" Norvell v. Sangre De Cristo Development Company
10th Cir. · 1975 · signal: see · confidence high
See National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971). 15 469 F.2d 593, at 597-598 . 16 The subject 99-year lease has not yet been approved measured by NEPA requirements and it is speculative when or conceivably whether it shall meet NEPA requirements. 17 It is fundamental that federal courts do not render advisory opinions and that they are limited to deciding issues in actual cases and controversies.
cited Cited "see" Norvell v. Sangre de Cristo Development Co.
10th Cir. · 1975 · signal: see · confidence high
See National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971). 469 F.2d 593, at 597-598 .
cited Cited "see" Scenic Rivers Association of Oklahoma v. Lynn
E.D. Okla. · 1974 · signal: see · confidence high
A. 4, 1971); See, National Helium Corporation v. Morton, 455 F.2d 650 (C.A. 10, 1971). *75 3.
discussed Cited "see" John W. Warner, Secretary of the Navy v. Honorable W. Harold Cox, United States District Judge for the Southern District of Mississippi, on Petition for Writ of Mandamus or Prohibition Litton Systems, Inc. v. The Honorable John W. Warner, Secretary of the Navy
5th Cir. · 1974 · signal: see · confidence high
See fn. 3 supra 10 See Richardson v. Morris, 409 U.S. 464 , 93 S.Ct. 629 , 34 L.Ed.2d 647, 650 (1973) 11 "It is the Secretary's violation of or failure to comply with the mandate of the Environmental Protection Act which furnishes a jurisdictional basis." 455 F.2d, at 654 The Tenth Circuit, in its opinion on a later appeal of the case, confirms our understanding of the jurisdictional basis upon which it placed its decision: "Thus, we conceive of the review of the Secretary's action as being strictly limited to compliance with the requirement of the environmental impact statement . . .
discussed Cited "see" Anaconda Company v. Ruckelshaus
D. Colo. · 1972 · signal: see · confidence high
See, National Helium Corporation v. Morton, 455 F. 2d 650 (10th Cir. 1971).” Davis v. Morton is but another way of saying what 42 U.S.C. § 4332 (2) (C) says: “The Congress authorizes and directs that, to the fullest extent possible: (2) all agencies of the Federal Government shall — . . .
Retrieving the full opinion text from the archive…
National Helium Corporation
v.
Rogers C. B. Morton, Secretary of the Interior, and Elburt F. Osborn, Director, Bureau of Mines, Department of the Interior, Cities Service Helex, Inc. And Phillips Petroleum Company, Intervenors-Appellees
71-1369.
Court of Appeals for the Tenth Circuit.
Oct 4, 1971.
455 F.2d 650
Cited by 2 opinions  |  Published

455 F.2d 650

3 ERC 1129, 1 Envtl. L. Rep. 20,478

NATIONAL HELIUM CORPORATION, Plaintiff-Appellee,
v.
Rogers C. B. MORTON, Secretary of the Interior, and Elburt
F. Osborn, Director, Bureau of Mines, Department of the
Interior, Defendants-Appellants, Cities Service Helex, Inc.
and Phillips Petroleum Company, Intervenors-Appellees.

No. 71-1369.

United States Court of Appeals,
Tenth Circuit.

Oct. 4, 1971.

Robert L. Ackerly, of Sellers, Conner & Cuneo, Washington, D. C. (Herbert L. Fenster, of Sellers, Conner & Cuneo, Washington, D. C., Emmet A. Blaes, of Jochems, Sargent & Blaes, Wichita, Kan., Wendell J. Doggett, Gen. Counsel and Secretary, National Helium Corp., Kansas City, Mo., and Harvey G. Sherzer, of Sellers, Conner & Cuneo, Washington, D. C., of counsel, on the brief), for plaintiff-appellee.

Judith S. Ziss, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Robert J. Roth, U. S. Atty., and Alan S. Rosenthal, Atty., Dept. of Justice, on the brief), for defendants-appellants.

Mark H. Adams, II, Wichita, Kan. (Jack W. Wertz, George E. Peabody, Oklahoma City, Okl., Mark H. Adams and William S. Richardson, Wichita, Kan., on the brief), for intervenor-appellee, Cities Service Helex, Inc.

William H. Allen, of Covington & Burling, Washington, D. C. (Joseph W. Kennedy, of Morris, Laing, Evans & Brock, Wichita, Kan., R. Price Howard, Asst. Gen. Atty., Phillips Petroleum Co., Bartlesville, Okl., of counsel, on the brief), for intervenor-appellee, Phillips Petroleum Co.

Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

[*~650]1

The Secretary of the Interior in this case has appealed the decision of the United States District Court for the District of Kansas, 326 F.Supp. 151, in which an injunction was entered prohibiting the termination by the Secretary of a contract for the purchase of helium from appellee companies. It presents jurisdictional and procedural problems, but the decisive question is primarily one of substance. It is whether the Secretary could summarily terminate the purchase contract without carrying out the requirements of the National Environmental Policy Act,[1] which section provides that federal agencies shall, in connection with major actions affecting the quality of the human environment, consider and make a statement as to the environmental impact of the proposed act and other environmental consequences. The District Court in granting the injunction held that it had jurisdiction and that the statement of the Secretary in terminating the contract contained no reference to consideration by the Secretary of the application of the NEPA. The court also held that the NEPA applies to the Helium Act and that, absent the injunction, helium would be lost in the atmosphere.

2

* Under the terms of the Helium Act[2] the Secretary of the Interior is authorized to enter contracts of no more than 25 years' duration for the "acquisition, processing, transportation, or conservation of helium."[3] The objects of this Act as shown by Sec. 167m are first, to develop a helium producing industry in the private sector and, secondly, to assure a steady supply of helium for "essential Government activities."[4] The meaning of "essential Government activities" as shown by the legislative history of the Act is the needs principally of the Atomic Energy Commission, the Department of Defense and the National Aeronautics and Space Administration.[5] The sponsors of the Act predicted that 70 percent of all helium produced would be used by government agencies and another 20 percent by government contractors, whereas only 10 percent would be used by private industry.[6]

3

Under the Act the Secretary is not required to purchase any helium. The entire matter is left to his discretion.[7] In deciding to terminate the contract[8] the Secretary stated that the basic purposes of the Act had been fulfilled, that is that the 25-year purchase program envisioned by the Act was unnecessary because as of the time of termination his estimates showed that there was enough helium in storage to fulfill government requirements through 1995. The Secretary notified the companies on January 26, 1971, that the contracts would be terminated effective March 27, 1971. In his letter he stated that there had been a diminution in the requirements of helium for essential governmental activities, and that there had been new discoveries since the execution of the contract, which discoveries had provided large sources of available helium if more of the gas "is required for essential government activities than is now in storage or will be recovered in government plants."

[*~651]4

In its complaint the plaintiff, National Helium Corporation, joined by intervenors, Cities Service Helex, Inc. and Phillips Petroleum Company, has alleged that the Secretary's action was procedurally defective because he failed to hold public hearings in accordance with the Helium Act and the Administrative Procedure Act, and in that he had failed to consult the Council on Environmental Quality. The prayer of each contractor was for preliminary injunction preventing termination of the contract. In anticipation of the Secretary's raising jurisdictional questions as to standing, the companies alleged that they were seeking to protect not only their own financial interests, but were also appearing as private attorneys general in order to protect the public interest in the helium program. In this latter connection they have alleged that if the helium is not extracted by them from the natural gas before the natural gas is delivered to the consumer, the helium would be vented into the atmosphere and lost when the natural gas was consumed as fuel.

5

In our judgment the District Court had jurisdiction to entertain the suit and did act properly in issuing injunctive relief in view of the Secretary's failure to observe the requirements of the NEPA prior to termination. Apart from this one aspect, we view the termination as action which is entirely within the discretion of the Secretary, involving as it does a contract which was entered into in the first instance solely on the basis of the Secretary's decision.

II

6

The government's claim is that the District Court lacked jurisdiction to review the action of the Secretary because the subject matter involved a government contract in which the amount in controversy exceeds $10,000, and that the sole remedy available is an action in the Court of Claims under the Tucker Act, 28 U.S.C. Sec. 1346. The government further maintains that the plaintiffs lack standing because they do not qualify as private attorneys general purporting to act in the public interest since the magnitude of their own private interests are manifestly opposed to the interests of the public.

7

The District Court thought that it was "passing strange" to see the giants of the oil and gas industry representing the public interest, but concluded that they were not per se disqualified to occupy this role and concluded that Sec. 10 of the Administrative Procedure Act gives standing to government contractors seeking review of administrative action challenged as arbitrary and capricious, abusive of discretion, or otherwise illegal.

[*~652]8

We are of the opinion that the contention that this was not an agency action within the meaning of Sec. 702 of the Administrative Procedure Act is untenable since the termination is not merely a contract termination but the termination of an extensive program authorized by act of Congress. The Administrative Procedure Act defines agency action as "an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."[9] We must therefore hold that the termination of a program as extensive as this which also poses substantial environmental problems qualifies under the mentioned definition. It cannot be denied that the companies have a genuine substantial financial interest in the termination of the contract. But it is their asserted representation of the public interest-which from their personal standpoint is admittedly less important than their private financial stake-which in final analysis justifies their seeking judicial review. It is the Secretary's violation of or failure to comply with the mandate of the Environmental Protection Act which furnishes a jurisdictional basis.[10] If the contracting parties were not invoking NEPA, the problem of federal question jurisdiction would be perhaps somewhat tenuous.[11] Their remedy under the Tucker Act in the Court of Claims could arguably at least be adequate. At the same time, this Court of Claims remedy is not preemptive merely because it sounds in contract.

III

[*~653]9

The Secretary next argues that he is protected from suit here by the doctrine of sovereign immunity because 1) the United States is the real litigant; 2) there is no statute authorizing injunctive interference with the termination of a government contract; and 3) the Administrative Procedure Act does not remove the bar to suits of this nature. However, as previously noted, we are of the view that the conservation and environmental issue makes the difference. It serves to distinguish this case from Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755 (1918) and Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The fact that the Secretary was compelled by law to act in accordance with the NEPA and failed to do so brings this case within the exception noted in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), i. e. it is action which is contrary to law; and cf. Pankey Land & Cattle Company v. Hardin, 427 F.2d 43 (10th Cir. 1970), which involved the mere exercise of discretion by the Secretary of Agriculture. As we heretofore have noted, the Administrative Procedure Act authorizes review of agency action in cases such as this one.[12]

10

It would be repetitious to discuss at length the further argument of the Secretary that the plaintiffs lack standing. We are unable to say that the companies are motivated solely by protection of their own pecuniary interest and that the public interest aspect is so infinitesimal that it ought to be disregarded altogether. It is not part of our function to weigh or proportion these conflicting interests. Nor are we called upon to determine whether persons seeking to advance the public interest are indeed conscientious and sincere in their efforts. True, the plaintiffs are not primarily devoted to ecological improvement, but they are not on this account disqualified from seeking to advance such an interest. No group has a monopoly on working for the public good. Cf. Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970), cert. denied 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970). Neither this cited case nor Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 so requires. These cases did observe that the litigants there involved were indeed interested in protection of the environment, but this was a factor which enhanced their standing to sue.

IV

11

The declared purpose of the NEPA[13] is to encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment; to stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the nation; and to establish a Council on Environmental Quality. It is further stated in subsection (b), 42 U.S.C. Sec. 4331 et seq., that its purpose is to improve and coordinate federal plans, functions, programs and resources to the end that the nation may

12

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

13

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. 42 U.S.C. Sec. 4331 (emphasis added.)

14

The statute further requires (42 U.S.C. Sec. 4332) that all agencies of the federal government shall

[*~654]15

(C) 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-

16

(i) the environmental impact of the proposed action,

17

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

18

(iii) alternatives to the proposed action,(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

19

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

20

The statement thus prescribed is to be made available to the President, the Council on Environmental Quality, and the public. This statute does not limit the authority of any governmental agency in any permanent or conclusive manner. It does, however, contain a mandate that action can be taken only following complete awareness on the part of the actor of the environmental consequences of his action and following his having taken the steps required by the Act. It is undeniable that the Act compels the Department to comply with its provisions when action is being taken having to do with a depletable resource. Here also there is evidence of "new and expanding technological advances" directly related to the need for an application of this resource.

[*~655]21

It is undisputed that the Secretary has not considered the environmental impact and has not taken any steps to fulfill the requirements of the NEPA. Indeed the Secretary has not even followed the regulations of his own Interior Department purporting to implement the statute. The NEPA also establishes a Council (in 42 U.S.C. Sec. 4344). In order to carry out the mandate of the statute the Council must be apprised of agency actions having environmental consequences. It does not appear from the statute that the agency action must await any responsive comments from the Council. Instead, the apparent purpose of the Council is to review federal programs and activities so as to keep the President informed on the extent to which these activities may affect the policies set forth in the Act. Thus, the Council's function is in no way regulatory. Its purpose is to take information and to coordinate the reporting of governmental activities so as to aid the policy makers.

22

The mandatory nature of the NEPA is emphasized in recent decisions. See, for example, Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.Cir.1971). The decisions are also clear that the mandates of the NEPA pertain to procedure and do not undertake to control decision making within the departments.[14]

23

As we view it then the purposes of the NEPA are realized by requiring the agencies to assess environmental consequences in formulating policies, and by insuring that the governmental agencies shall pay heed to environmental considerations by compelling them to follow out NEPA procedures.

24

The Secretary in the instant case proposes to take an action which has environmental consequences, namely rapid depletion of the helium resources of the country. Whether the Secretary's proposed action has significant longrange consequences, or whether the environmental effects are insignificant in relationship to the countervailing government interests, are decisions which are left to the Secretary. The important thing is that he must consider the problem. As was said by the D.C. Circuit in Calvert Cliffs', supra:

25

The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action.

26

In oral arguments the appellees have expressed a desire for extensive administrative proceedings. We do not see any such requirement. This is an intradepartmental matter in which the Secretary fulfills his obligation by following the mandate of the NEPA. Neither the APA nor the NEPA compels him to appoint an examiner and conduct hearings. Indeed the Department has NEPA procedures in its manual. He ought to at least follow these. There is no indication that Congress in enacting the NEPA intended to impose extensive procedural impediments to Department action.

27

Having concluded that the court had jurisdiction in this cause and that the NEPA fully applies to the action here involved, it follows that the District Court acted properly in enjoining the termination program, at least pending the compliance by the Secretary with the NEPA.

28

We agree with the Secretary that the matter here involved is urgent and should be expedited in every possible way.

[*~656]29

The judgment is affirmed.

1

42 U.S.C. Sec. 4321 et seq. (hereinafter referred to as the NEPA)

2

50 U.S.C. Sec. 167 et seq., as amended in 1960

3

50 U.S.C. Sec. 167a(a) (2)

4

This section so provides:

It is the sense of the Congress that it is in the national interest to foster and encourage individual enterprise in the development and distribution of supplies of helium, and at the same time provide, within economic limits, through the administration of this chapter, a sustained supply of helium which, together with supplies available or expected to become available otherwise, will be sufficient to provide for essential Government activities. 50 U.S.C. Sec. 167m.

5

106 Cong.Rec. 18544 (1960) (remarks of Senator Allott)

6

Id. at 18544, 19546 (remarks of Senator Allott)

7

Id. at 18545, 18608 (remarks of Senators Allott and Carroll)

8

The termination clause under which the Secretary acted reads as follows:

Buyer may, at its option, terminate this contract at any time if, (1) in the opinion of the Secretary of the Interior, the discovery of large new helium resources or a substantial diminution in helium requirements or any circumstance of similar nature should occur which would make the continued operation of Seller's plant and the continued purchase of helium-gas mixture extracted therein unnecessary to accomplish the purposes of the Act or any amendment thereto, or (2) a material circumstance of force majeure making it impracticable or impossible for either Buyer or Seller to carry out it obligations under this contract which circumstance cannot be remedied with reasonable dispatch.

9

5 U.S.C. Sec. 551

10

We deem it unnecessary to denominate the contractors as private attorneys general

11

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)

12

The Supreme Court, in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970) recently has made it very clear that where there is no statutory prohibition of judicial review, and there is "law to apply" (here the NEPA) thus removing the situation from the APA exception for action committed to agency discretion by law (denoted "a very narrow exception" in Overton Park), all agency action is presumed to be reviewable

13

42 U.S.C. Sec. 4321 et seq

14

Texas Committee on Natural Resources v. United States, W.D.Texas, 1 Envir. Rpts-Cas. 1303, 1304 (1970); Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 749 (E.D.Ark.1971); Pennsylvania Environmental Council v. Bartlett, 315 F.Supp. 238 (M.D.Pa.1970)