Sierra Club v. Hodel

848 F.2d 1068 (1988) | Cited 65 times | Tenth Circuit | August 31, 1988

Before LOGAN, BARRETT and SEYMOUR, Circuit Judges.

Opinion ON REHEARING

Per Curiam.

The panel denies all of the petitions for rehearing, with the following amendments and comments:

1. The panel amends the opinion by substituting the new pages 59-61 attached for pages 59-60 of the slip opinion originally issued.

2. Sierra Club's petition for rehearing makes an argument that major federal action is created by the Secretary's duty under FLPMA § 302(b), 43 U.S.C. § 1732(b), to prevent unnecessary or undue degradation of all public lands. On appeal, Sierra Club argued that the nondegradation standard implicated major federal action only in the context of WSAs pursuant to FLPMA § 603(c). See Reply and Answer Brief of Sierra Club at 28-29. Not until its petition for rehearing did Sierra Club raise the issue whether § 302(b)'s nondegradation standard for all public lands creates major federal action. Petitions for rehearing under Fed. R. App. P. 40(a) are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief. See Jamestown Farmers Elevator, Inc. v. General Mills, Inc., 552 F.2d 1285, 1295-96 (8th Cir. 1977) (appellant may not raise issue in petition for rehearing not argued as part of original appeal); Mitchell v. Greenough, 100 F.2d 1006, 1006 (9th Cir.) ("A party cannot on petition for rehearing shift his position"), cert. denied, 306 U.S. 659 (1939); cf. United States v. Smith, 781 F.2d 184 (10th Cir. 1986) (prohibiting government from using petition for rehearing to raise an issue it had previously conceded).

Additionally, Judge Barrett would grant Garfield County's request to clarify our position relative to what is "unnecessary or undue degradation" as applied to the Wilderness Study Areas, and he agrees with the County's contention that its performance of construction activities within the scope of its right-of-way does not require a BLM environmental analysis.

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