Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 1 of 48
JOHN C. CRUDEN Acting Assistant Attorney General
R. LEE LEININGER U.S. Department of Justice Environment & Natural Resources Division 1961 Stout Street, Suite 800 Denver, CO 80294 (303) 844-1364 [email protected]
KRISTOFOR R. SWANSON U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, DC 20044 (202) 305-0248 [email protected]
BRETT L. TOLMAN United States Attorney JEANNETTE F. SWENT Assistant U.S. Attorney, USB # 6043 185 South State Street, #300 Salt Lake City, Utah 84111 (801) 325-3220
Attorneys for Federal Defendants
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION
______) SKULL VALLEY BAND OF GOSHUTE ) INDIANS, et al., ) Case No 2:07CV00526-DME-DN ) Plaintiffs,)DEFENDANTS’ RESPONSE BRIEF ) ON THE MERITS v. ) ) Senior Circuit Judge David M. Ebel LAURA DANIEL DAVIS, et al.,) ) Defendants.) ______) TABLE OF CONTENTS Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 2 of 48
INTRODUCTION ...... 1
STATEMENT OF FACTS ...... 1
STATUTORY & REGULATORY BACKGROUND ...... 11
I. Indian Long-Term Leasing Act ...... 11
II. Federal Land Policy and Management Act...... 12
III. National Environmental Policy Act ...... 12
STANDARD OF REVIEW ...... 13
ARGUMENT...... 14
I. The Agency Decisions Were Not the Result of Either Irregular Processes or Undue Political Influence ...... 15
A. The Department Appropriately Followed Applicable Procedures ...... 15
B. The Department’s Decisions Did Not Result From Improper Political Influence ...... 18
II. Associate Deputy Secretary Carson Made A Well-Reasoned Conclusion, Supported by the Record, Not to Approve the Lease ...... 20
A. Section 415(a) Grants the Secretary Wide Discretion in Deciding Whether to Approve Leases...... 20
B. The Department Acted As a Prudent Trustee By Not Approving the Lease Absent Reliable Assurances as to the On-Going Protection of the Band’s Reservation ...... 21
1. The Associate Deputy Secretary Made a Reasoned Conclusion On The Uncertainty of Future Waste Removal...... 22
2. The Associate Deputy Secretary Made a Reasoned Conclusion Regarding Police Protection...... 24
-i- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 3 of 48
3. Additional Section 415(a) Factors ...... 27
C. The Department’s Trust Relationship with the Band Does Not Require Absolute Deference to the Band’s Desired Land Use ...... 28
III. Acting Assistant Secretary Calvert’s Made a Well-Reasoned Decision, Supported by the Record, to Deny the Right-Of-Way ...... 30
IV. Plaintiffs Have Failed to Present a Cognizable Claim Under NEPA ...... 33
A. Plaintiffs’ Lack Standing to Assert a Claim Under NEPA ...... 33
B. NEPA Regulations Did Not Require the Agencies to Supplement the FEIS Here ...... 35
C. The Timing of the Department’s Decision Was Well-Reasoned, And Any Further Environmental Review at the Present Time Would Be Meaningless ...... 37
CONCLUSION ...... 39
-ii- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 4 of 48
TABLE OF AUTHORITIES
CASES
Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000) ...... 34
Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005) ...... 34
Blackbear v. Norton, 93 Fed. App’x. 192 (10th Cir. Mar. 5, 2004) ...... 6
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ...... 13
Brown v. United States (“Brown II”), 42 Fed. Cl. 538 (1998) ...... 21, 28
Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004) ...... 6
Camp v. Pitts, 411 U.S. 138 (1973) ...... 14
Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) ...... 35
Citizens for Alternatives to Radioactive Dumping v. Dep’t of Energy, 485 F.3d 1091 (10th Cir. 2007) ...... 14
Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169 (10th Cir. 2008) ...... 13
Colo. Health Care Ass’n v. Colo. Dep’t of Soc. Serv., 842 F.2d 1158 (10th Cir. 1988) ...... 14
Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221 (10th Cir. 2004) ...... 35
Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996) ...... 33, 34
Cotton Petroleum Corporation v. U.S. Department of the Interior, 870 F.2d 1515 (10th Cir. 1989) ...... 17
Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) ...... 36
-iii- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 5 of 48
Devia v. NRC, No. 05-1419, 2007 U.S. App. Lexis 15411 (D.C. Cir. June 26, 2007) ...... 6
Fund for Animals v. Thomas, 127 F.3d 80 (D.C. Cir. 1997) ...... 34
Hoopa Valley Tribe v. Christie, 812 F.2d 1097 (9th Cir. 1986) ...... 17
In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir. 1998) ...... 14
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) ...... 34
Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395 (D.S.D. 1995) ...... 17
Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ...... 12, 36
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...... 13
National Ass’n of Home Builders v. U.S. Army Corps of Engn’rs, 417 F.3d 1272 (D.C. Cir. 2005) ...... 34
Nevada Land Action Ass’n v. United States Forest Serv., 8 F.3d 713 (9th Cir.1993) ...... 34
New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) ...... 14
Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55 (2003) ...... 37
Nw. Sea Farms v. U.S. Army Corps of Eng’rs, 931 F. Supp. 1515 (W.D. Wash. 1996) ...... 36
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) ...... 13
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ...... 12
Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002) ...... 34, 35
Sabine River Authority v. U.S. Dep’t of the Interior, 951 F.2d 669 (5th Cir. 1992) ...... 34, 36
-iv- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 6 of 48
Skull Valley Band of Goshute Indians v. Leavitt, 215 F. Supp. 2d 1232 (D. Utah 2002) ...... 6
Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ...... 2
Taubman Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475 (4th Cir. 2003) ...... 34
United States v. Mitchell, 463 U.S. 206 (1983) ...... 33
United States v. Navajo Nation, 537 U.S. 488 (2003) ...... 29
Utah v. Dep’t of the Interior, 45 F. Supp. 2d 1279 (D. Utah 1999) ...... 6, 24
Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) ...... 12, 13, 28
Webster v. United States, 823 F. Supp. 1544 (D. Mont. 1992) ...... 21, 26
STATUTES
5 U.S.C. § 706...... 42
25 U.S.C. § 415...... passim
25 U.S.C. § 2802 ...... 24
42 U.S.C. § 4332 ...... 12, 13, 36
42 U.S.C. §§ 10101–10270 ...... 3
43 U.S.C. § 1761 ...... 3, 12
43 U.S.C. § 1764 ...... 12
49 U.S.C. § 10901 ...... 3
Pub. L. No. 109-163, 119 Stat. 3136 ...... 10
-v- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 7 of 48
REGULATIONS
10 C.F.R. § 50 ...... 25
10 C.F.R. § 51 ...... 25
10 C.F.R. § 72 ...... 5
10 C.F.R. § 50 ...... 25
10 C.F.R. § 51 ...... 25
25 C.F.R. § 15 ...... 32
25 C.F.R. § 162 ...... 11
25 C.F.R. § 162.107 ...... 11, 28, 29
25 C.F.R. § 162.108 ...... 11, 25
25 C.F.R. § 162.617 ...... 11, 12
25 C.F.R. § 162.619 ...... 12
40 C.F.R. § 1502.9 ...... 36
40 C.F.R. § 1508.18 ...... 36
40 C.F.R. §§ 1500–1508 ...... 12
43 C.F.R. § 2804.26 ...... 8, 12
49 Fed. Reg. 34,658 (Aug. 31, 1984) ...... 22
55 Fed. Reg. 38,474 (Sept. 18, 1990) ...... 22
71 Fed. Reg. 57,005 (Sept. 28, 2006) ...... 8
71 Fed. Reg. 58,629 (Oct. 4, 2006) ...... 8
71 Fed. Reg. 6286 (Feb. 7, 2006) ...... 12
-vi- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 8 of 48
INTRODUCTION
Plaintiffs Skull Valley Band of Goshute Indians and Private Fuel Storage applied to the
Department of the Interior (“Department”) for approval of a lease and right-of-way, respectively, to transport nuclear waste across public lands and store it in a planned facility on the Skull
Valley Band’s Reservation. After years of environmental review, public comment, and consultation with the Skull Valley Band, the Department’s Associate Deputy Secretary declined to approve the proposed lease, determining that allowing nuclear waste onto the Skull Valley
Band’s Reservation would be imprudent in light of the statutory factors he must consider and
Department’s trust relationship with the Band. Similarly, the Department’s Acting Assistant
Secretary for Land and Minerals Management denied the right-of-way application, finding its approval would be against the public interest. Plaintiffs now challenge both those decisions under the Administrative Procedure Act as arbitrary and capricious and contrary to law. As detailed below, however, both decisions were well-reasoned and supported by the record.
Plaintiffs’ requested relief should therefore be denied.
STATEMENT OF FACTS
In May 1997, the Skull Valley Band of Goshute Indians (“the Band”), a federally recognized Indian Tribe, and Private Fuel Storage (PFS), a private consortium of eight licensed nuclear power plant operators, agreed to a First Amended and Restated Lease (“first lease”) for placing an Independent Spent Fuel Storage Installation (“ISFSI” or “facility”) on the Band’s
Reservation. See AR SOL 03A-09, pp. 1–47;1/ see AR SOL 7M-01, p. 115 (facility map). The
1/ The administrative record index and CDs containing the electronic volumes are organized by “Batch Number.” The designations “SOL-SLC” and “SOL-WDC” refer to documents compiled (continued...)
-1- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 9 of 48
Reservation is located in Tooele County, Utah, approximately seventy miles west of Salt Lake
City. See AR SOL 12N-07, p.2. Under the lease, the ISFSI would store spent nuclear fuel
(SNF), consisting mostly of intact fuel rods removed from various nuclear facilities across the country. See AR SOL 12N-08, p. 10; see also AR SOL 7M-01, p. 87 (map of reactor sites).
“Because SNF remains radioactive for thousands of years, long-term storage strategies are essential. However, the search for the safest solution has been long and difficult.” Skull Valley
Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1227 (10th Cir. 2004). PFS intended the
ISFSI to be a temporary facility—licensed for up to forty years—with the spent nuclear fuel shipped from the facility to a permanent repository before the lease of Reservation land expired.
See AR SOL 7N-01, p. 89. The ISFSI’s use as a temporary facility was based on the assumption that a permanent repository would be available at the end of the Skull Valley facility’s lease and license. See AR SOL 7N-01, pp. 23–24.
PFS identified two options for transporting the spent nuclear fuel to the Reservation. The preferred option involved creating a new rail spur originating “from the Union Pacific mainline at Low Junction south of I-80 and proceed[ing] along the western side of Skull Valley for 32 miles on [Bureau of Land Management] land to the Goshute Reservation.” AR SOL 4B-28, p. 1;
1/(...continued) by the Department of the Interior’s Office of the Regional Solicitor in Salt Lake City, and Office of the Solicitor in Washington, DC, respectively. Those designations are followed by an alpha- numeric identifier, e.g., “12N-00001”, used to group similar documents, and an additional numeric identifier, e.g., “000007”, used to identify individual files under each document group. Each electronic file is then separately page-numbered. Defendants have not cited to any of the “SOL-WDC” documents and have therefore shortened their citations herein to include only the alpha-numeric identifier and file identifier. For example, file SOL-SLC-BATCH-12N-00001- 000007 will be cited as “AR SOL 12N-07.” The specific pages of each file will be cited where appropriate. Defendants also submit a record appendix of the pages to which they cite.
-2- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 10 of 48
see also AR SOL 7M-01, p. 86 (map of proposed project). An alternative option involved offloading spent nuclear fuel shipments “from the rail mainline at an Intermodal Transfer
[Facility] (IT[F]) onto heavy haul truck and travel[ing] on Skull Valley Road to the reservation.”
AR SOL 4B-28, p. 2. PFS noted that hauling the shipments via truck would “create some level of interference” for traffic and the population along Skull Valley Road. See AR SOL 4B-28, p.
2.
In order for the ISFSI to become operational, several federal approvals would be necessary. See AR SOL 7M-01, p. 114. The Nuclear Regulatory Commission (NRC) regulates spent nuclear fuel storage. See 42 U.S.C. §§ 10101–10270; 10 C.F.R. pt. 72. PFS therefore applied to NRC in June 1997 for a license to “receive, transfer, and possess” spent nuclear fuel, and operate the storage facility. See AR SOL 7M-01, p. 98. Further, the Surface Transportation
Board (STB) regulates new rail lines. See 49 U.S.C. § 10901. Therefore, STB would need to grant a license for the construction and operation of the proposed rail transport. See AR SOL
7M-01, p. 101. Additionally, the Bureau of Indian Affairs (BIA) is a trustee for the Band and its land. See AR SOL 7M-01, pp. 99–100. Pursuant to the trust relationship, and the authority in 25
U.S.C. § 415, the Secretary of the Interior would be required to approve the lease for Reservation lands. See AR SOL 7M-01, pp. 99–100. The Bureau of Land Management (“BLM”), pursuant to the Federal Land Policy and Management Act, 43 U.S.C. § 1761, would also have to grant a right-of-way for any rail-line or transfer facility on federal lands. See AR SOL 7M-01, pp.
100–101.
The BIA is divided into twelve Regional Offices, which collectively oversee eighty-three
Agency or Field Offices, each responsible for administering BIA programs on one or more
-3- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 11 of 48
reservation. On May 23, 1997, the BIA Superintendent for the Uintah and Ouray Agency Office,
which has jurisdiction over the Band’s Reservation, signed a “conditional approval” of the first
lease. See AR SOL 3A-14, p.1. The first lease was for a period of twenty-five years, with an
option to extend for an additional twenty-five years. See AR SOL 3A-09, p. 11. In January
2002, the Band and PFS entered into a Second Amended and Restated Lease (“second lease”)
with essentially the same terms. See AR SOL 8A-02, pp. 6–36. BIA took no action at that time
to approve the second lease, conditionally or otherwise.
On August 28, 1998, PFS filed an application for rights-of-way with the BLM’s Salt Lake
District Manager for the two transportation options. See AR SOL 4B-28, pp. 1–16. Application
U 76985 requested the preferred option of a right-of-way for the thirty-two-mile railroad spur.
See AR SOL 4B-28, p. 8. The second option became Application U 76986, which requested a
right-of-way for the ITF, to be built on approximately twenty-one acres of BLM-administered
public land. See AR SOL 4D-12, p. 2.
For the planned project as a whole, NRC took on the role of “lead agency” in preparing an
Environmental Impact Statement (EIS) under the National Environmental Policy Act to analyze
the proposed storage facility’s potential environmental effects. See AR SOL 6B-36, pp. 1-3; AR
SOL 4D-16, p. 2. BLM and BIA took on roles as “cooperating agencies” in preparing the EIS.
See AR SOL 4D-16, p. 2; AR SOL 4D-18, p. 2. The STB also acted in the role of a cooperating
agency. See AR SOL 5K-21, p. 1. The agencies issued a Draft EIS in June 2000. See AR SOL
6H-01. In December 2001, they then issued the Final EIS (FEIS). See AR SOL 7M-01 and SOL
-4- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 12 of 48
7N-01.2/ The FEIS analyzed several alternatives for the proposed project. See AR SOL 7M-01,
pp. 148–166. The preferred alternative, as the FEIS identified, was construction and operation of
the facility on the Reservation, with spent nuclear fuel transported via the proposed rail line
through BLM lands. See AR SOL 7M-01, p. 114.
The proposed ISFSI and necessary transportation of spent nuclear fuel was highly
controversial from the beginning, with well-documented public and political opposition. See,
e.g., AR SOL 3D-25 (Oct. 7, 1997, Congressman Cook press release urging Committee to oppose
spent nuclear fuel storage on Reservation); AR SOL 4B-14 (July 1, 1998, Salt Lake Tribune
article on Utah Governor seeking support from other Governors to oppose Band’s plan); AR SOL
5A-01 (Jan. 1999 Enviro-Justice Newsletter on nuclear “nightmare” proposal to transport spent
nuclear fuel to Skull Valley); AR SOL 6G-21 (May 26, 2000, Salt Lake Tribune article on Utah’s
attempts to stop Skull Valley proposal); AR SOL 7C-03 (Jan. 28, 2001, Salt Lake Tribune article
on Band Chairman’s state of the Tribe report); AR SOL 8A-08 (Jan. 11, 2002, Salt Lake Tribune
article on Skull Valley and Yucca Mountain debates in Utah and Nevada); AR SOL 9A-03 (Jan.
6, 2003, Salt Lake Tribune article on Band members that oppose spent nuclear fuel storage); AR
SOL 10A-24 (Feb. 2, 2004, Indianz.com report on court decision); AR SOL 11A-05 (Mar. 14,
2005, Inter Press Service News Agency report on conflicts within Band on proposal); AR SOL
12A-14 (Feb. 8, 2006, Deseret News report on BLM’s request for additional public comment on
2/ Given the size of the Draft EIS and Final EIS, Defendants have only included in the appendix the specific pages to which they cite. In addition, documents found at AR SOL 6H-01 (754 pages), AR SOL 12B-01 (1,424 pages), AR SOL 12D-01 (848 pages), and AR SOL 12F-01 (1,190 pages) are voluminous and therefore are not reproduced in the Appendix. They are, however, referenced in the Appendix with complete record citation format to aid in locating the documents in the electronic Administrative Record.
-5- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 13 of 48
proposal). The opposition continued through the public commenting periods for the EIS and the
BLM rights-of-way applications. See AR SOL 7N-01; AR SOL 12B-1 through AR SOL 12F-1.
The strong opposition to nuclear waste storage on the Reservation resulted in several
administrative and judicial challenges to the project and its requisite Government approvals. The
State of Utah and certain members of the Band unsuccessfully challenged the BIA’s conditional
approval of the first lease. See Utah v. Dep’t of the Interior, 45 F. Supp. 2d 1279 (D. Utah 1999),
affirmed by 210 F.3d 1193 (10th Cir. 2000). The State of Utah unsuccessfully attempted to place
statutory hurdles in front of the project. See Skull Valley Band of Goshute Indians v. Leavitt, 215
F. Supp. 2d 1232 (D. Utah 2002), affirmed by 376 F.3d 1223 (10th Cir. 2004). Dissident
members of the Band also unsuccessfully challenged NRC authority to license private SNF
storage away from reactor facilities, and petitioned for rulemaking on the concept. See Bullcreek
v. NRC, 359 F.3d 536 (D.C. Cir. 2004). Later, Band members made an additional challenge,
again unsuccessfully, to various Tribal and BIA actions surrounding the conditional approval of
the first lease. See Blackbear v. Norton, 93 Fed. Appx. 192 (10th Cir. 2004). A group of Band
members have also since challenged the NRC license itself. See Devia v. NRC, No. 05-1419,
2007 U.S. App. LEXIS 15411 (D.C. Cir. June 26, 2007) (staying action in light of this suit).
But opposition to the project was not limited to judicial proceedings. Congressional
opposition to nuclear waste storage on the Reservation was particularly strong.3/ United States
3/ See, e.g., AR SOL 6L-07 (news article on Sen. Bennett denouncing waste dump); AR SOL 9B- 40 (DOI tasking report with copy of letter from entire Utah Congressional delegation expressing concern); AR SOL 11B-15 (news article on Sen. Hatch “pitching assault” on PFS); AR SOL 11B-16 (news article that Sen. Hatch “takes aim at PFS”); AR SOL 11B-60 (letter from Sen. Hatch to Sec. Norton on utilities and other issues); AR SOL l1B-61 (letter from BLM Dir. Hughes to Sen. Hatch stating that BLM will open public comment); AR SOL 11B-62 (Sen. (continued...)
-6- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 14 of 48
Senators Hatch and Bennett, representing Utah, met with administrative officials to lobby against the project. On June 29, 2006, for example, the Senators reportedly met with then-Secretary Dirk
Kempthorne “to call the issue [of nuclear waste storage on the Band’s reservation] to his attention” and “to pay close attention to all the merits . . . convinced that on the merits [the opposition] point of view would come out on top.” See Ex. 4 to Pls.’ Br. (Doc. No. 78-6)
(allowed into record as part of the Court’s March 2, 2009, Order). “This wasn’t a case of political pressure,” but rather an effort to present Department of the Interior officials with what the
Senators believed to be “a strong case” against the project. See id.
The United States Congress also acted legislatively to prevent the proposed plan’s preferred transportation alternative. In January 2006, the United States Congress passed the 2006
National Defense Authorization Act. See Pub. L. No. 109-163, Section 384, 119 Stat. 3136, available at AR SOL 11B-85, pp. 1–6. The Act designated certain public lands, portions of which would have been subject to PFS’s proposed rail spur, as part of a new Cedar Mountain
Wilderness Area. See AR SOL 12A-38, pp.1, 5. The Act specifically prohibited in the
Wilderness Area “all forms of entry, appropriation or disposal under the public land laws,” which effectively prohibited the BLM right-of-way necessary for PFS’s proposed rail line. 119 Stat. at
3217. This placed a statutory bar on the FEIS’s preferred alternative. See AR SOL 12N-08, p. 2.
3/(...continued) Hatch news release on BLM public comment); AR SOL 12C-01, pp. 677-87 (letter from Senators Hatch and Bennett commenting on BLM rights-of-way proposals); AR SOL 12C-01, pp. 688-93 (letter from Sen. Hatch commenting on BLM rights-of-way proposals); AR SOL 12J- 01, pp. 113–25 (printout from Sen. Hatch’s website on opposition to waste site submitted as part of BLM public comment); AR SOL 12M-02 (news article regarding Sen. Hatch concerns over project site); AR SOL 12M-50, pp. 32–54 (letter from Sen. Hatch forwarding letters from school children); AR SOL 12M-50, pp. 67–69 (letters of Congressmen Bishop, Matheson, Cannon).
-7- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 15 of 48
Plaintiffs concede that they are not challenging the Wilderness designation, or promoting the previously-preferred alternative. See Pls.’ Br. at 6 n.3.
On February 7, 2006, BLM issued a Federal Register notice soliciting public comment on
PFS’s proposed rights-of-way. See AR SOL 12A-11. The BLM based the solicitation on: (1) the
new Cedar Mountain Wilderness Area and its effective prohibition on the rail line; and (2)
changes in the BLM regulations governing rights-of-way (43 C.F.R. § 2804.26). See AR SOL
12A-11, pp. 1–4 (Federal Register notice). The public response overwhelmingly opposed BLM
issuing a right-of-way for the project. A BLM summary of the public comments noted that
approximately eighty percent of 9,600 comments opposed the proposed nuclear waste transport
and storage. See AR SOL 12M-50, p. 1.
On February 21, 2006, the NRC issued Materials License No. SNM-2513, Docket No. 72-
22, to construct and operate the proposed ISFSI. See AR SOL 12A-31, pp.1–2 (notice of license
issuance); AR SOL 12A-29, pp. 2–45 (approved license). Thereafter, the Chairman of the Band
repeatedly wrote and met with Department of the Interior officials, asking them to issue a
decision on the lease. See AR SOL 12M-22, pp. 1–3; AR SOL 12M-27; AR SOL 12M-34, pp.
1–2.
On September 7, 2006, responding to the Band’s requests, the Department of the Interior
issued two records of decision. One, signed by James E. Cason, Associate Deputy Secretary,
withheld the Secretary’s approval for the Band and PFS’s proposed lease (“Cason Decision”).
See Notice of Availability, 71 Fed. Reg. 58,629 (Oct. 4, 2006); AR SOL 12N-07, pp. 1–29. The
other, signed by Chad Calvert, Acting Assistant Secretary, Land and Minerals Management,
denied PFS’s right-of-way applications (“Calvert Decision”). See Notice of Availability, 71 Fed.
-8- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 16 of 48
Reg. 57,005 (Sept. 28, 2006); AR SOL 12N-08, pp. 1–26. Both decisions are summarized below.
The Cason Decision
The Cason Decision declined to approve the proposed lease. See AR SOL 12N-07. The
Associate Deputy Secretary noted Department’s “primary duty as trustee-delegate, under the law
regarding this and other proposed leases, [is] the protection of the trust res as a future homeland
and productive land base for the Band through the prudent exercise of informed discretion after
considering all relevant factors.” AR SOL 12N-07, p. 18. Within that standard, uncertainty
surrounding the availability of a permanent repository for the nuclear waste being brought onto
the Reservation in a temporary capacity gave the trustee “no confidence” as to when the spent
nuclear fuel might leave the Reservation. See AR SOL 12N-07, p. 29. This, “combined with the
Secretary’s practical inability to remove or compel [the spent nuclear fuel’s] removal once
deposited on the Reservation, counsel[ed] disapproval of the proposed lease.” See AR SOL 12N-
07, p. 29. The Associate Deputy Secretary had not satisfied himself that adequate consideration
had been given to certain issues, as 25 U.S.C. § 415(a) requires, and decided it was “not
consistent with the conduct expected of a prudent trustee to approve a proposed lease that
promotes storing [spent nuclear fuel] on the reservation.” See AR SOL 12N-07, p. 19.
The Calvert Decision
The basis for denying the rights-of-way is thoroughly set out in a cover letter (BLM
Letter) and Record of Decision (BLM ROD). See AR SOL-12N-08. In summary, the BLM ROD
concludes that the proposed rights-of-way would be contrary to the public interest. See AR SOL-
12N-08, p. 9. BLM reviewed numerous comments on the Draft EIS as well as additional
comments pursuant to BLM’s request for comments on the two right-of-way applications. See
-9- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 17 of 48
AR SOL-12N-08, p. 2. The BLM ROD concluded that the proposed rail line would be inconsistent with BLM’s responsibilities to manage the Cedar Mountain Wilderness Area. See
AR SOL-12N-08, pp. 17–18; Pub. L. No. 109-163, 119 Stat. 3136. This left the ITF as the only
viable proposed transportation alternative.
Yet the FEIS rejected the ITF alternative in favor of the preferred rail-line alternative
because of the former’s impact to local traffic on Skull Valley Road and the additional radiation
to which workers at the ITF site would be exposed. See AR SOL 7M-01, p. 488. The BLM ROD
found that, in addition to the concerns identified in the FEIS, the record failed to consider a number of other factors associated with the ITF alternative, such as any impacts from eventual removal of SNF from the Reservation along Skull Valley Road; an analysis of the Tekoi Balefill facility, a waste disposal site on the Reservation approved after preparation of the FEIS (AR
SOL-12N-08, pp. 6,7); and the restriction on storage of hazardous materials in the BLM Pony
Express Resource Management Plan (AR SOL-12N-08, p. 3, 4, 19). The BLM ROD found
additional support for its decision from statements of elected and other federal government
officials that “the Private Fuel Storage initiative is not part of the Department [of Energy’s]
overall strategy for the management of spent nuclear fuel and high-level radioactive waste.” AR
SOL-12N-08, p. 24. With all the federal resources committed to the Yucca Mountain site, there
would be no federal funds to assist with the proposed PFS facility. See AR SOL 12N-08, p. 24.
Plaintiffs now challenge the Cason and Calvert Decisions under the Administrative
Procedure Act as arbitrary and capricious, and contrary to law.
-10- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 18 of 48
STATUTORY & REGULATORY BACKGROUND
I. Indian Long-Term Leasing Act
The Indian Long-Term Leasing Act, 25 U.S.C. § 415, requires the Secretary of the
Interior’s approval before any owner of Indian lands may lease the lands. See 25 U.S.C. § 415(a).
The Act extends to leases for business purposes. See id. The Act, with exceptions not applicable here, caps each lease’s temporal scope at twenty-five years, with the possibility of extensions for up to twenty-five additional years. See id.
Prior to approving any lease, the Secretary is required to satisfy him- or herself that
“adequate consideration” has been given to five issues. See id. The issues are: “[1] the
relationship between the use of the leased lands and the use of neighboring lands, [2] the height,
quality, and safety of any structures or other facilities to be constructed on such lands, [3] the
availability of police and fire protection and other services, [4] the availability of judicial forums
for all criminal and civil causes arising on the leased lands, and [5] the effect on the environment
of the users to which the leased lands will be subject.” Id.
All lease approvals and renewals are subject to regulations prescribed by the Secretary.
See id. Here, those regulations are found at 25 C.F.R. pt. 162. Under the regulations, the
Department defers, “to the maximum extent possible,” to the landowners’ decision on whether the
lease is in their best interest. See 25 C.F.R. § 162.107. Once a lease is active, the regulations
require the Department to “ensure that tenants comply with the operating requirements in their
leases[.]” 25 C.F.R. § 162.108. If necessary, the Department must take “emergency action as
needed to preserve the value of the land.” Id. Further, the regulations authorize the Department
to enter the lease premises “to protect the interests of the Indian landowner.” See 25 C.F.R. §
-11- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 19 of 48
162.617. In certain situations, the Department is required to cancel leases and order the tenant, subject to appeal, to vacate the property within 30 days. See 25 C.F.R. § 162.619.
II. Federal Land Policy and Management Act
The Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1761(a), authorizes the Secretary “to grant, issue, or renew rights-of-way over, upon, under, or through [public] lands for . . . (6) roads, trails, highways, . . . or other means of transportation . . . .” Id. Such rights of way issue “subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination.” Id. § 1764(c). Regulations require BLM to:
[C]onsider a number of factors in deciding whether to grant or deny an application for a right-of-way. Among these factors are (1) the project’s consistency with BLM’s management of the public lands; (2) the public interest; (3) the applicant’s qualifications to hold a grant; (4) the project’s consistency with [the Federal Land Policy Management Act], other laws, or regulations; (5) the applicant’s technical or financial capability; and (6) the applicant’s compliance with information requests.
Notice of Request for Comments, 71 Fed. Reg. 6286 (Feb. 7, 2006); see 43 C.F.R. § 2804.26(a);
AR 12A-11, p. 1.
III. National Environmental Policy Act
Congress passed the National Environmental Policy Act (NEPA) to focus governmental and public attention on the potential environmental effects of any “major federal action.” See 42
U.S.C. § 4332; Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989). Council on
Environmental Quality regulations provide guidance to agencies in applying the statute. See 40
C.F.R. §§ 1500–1508; Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).
NEPA’s statutory and regulatory mandate is “essentially procedural.” Vt. Yankee Nuclear Power
-12- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 20 of 48
Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978). It is to ensure that an agency’s decision to act in manner potentially affecting the environment is “fully informed and
well-considered.” See id. As part of its procedural mandate, NEPA requires federal agencies to prepare an Environmental Impact Statement (EIS) for any “major federal action . . . significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(C).
STANDARD OF REVIEW
Plaintiffs challenge the Cason and Calvert Decisions as arbitrary and capricious, and not
in accordance with law. Under the Administrative Procedure Act, an agency decision that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” may
be set aside. 5 U.S.C. § 706(2)(A). An agency decision may be arbitrary and capricious if it fails
to consider important relevant factors or if there is no “rational connection between the facts
found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 42-43 (1983); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
285 (1974).
“The duty of a court reviewing agency action under the ‘arbitrary or capricious’ standard
is to ascertain whether the agency examined the relevant data and articulated a rational
connection between the facts found and the decision made.” Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). The Court’s “review is highly deferential.” Citizens’
Comm. to Save Our Canyons v. Krueger 513 F.3d 1169, 1176 (10th Cir. 2008) (citation omitted).
Furthermore, “[i]n reviewing the agency’s explanation, the reviewing court must determine
whether the agency considered all relevant factors and whether there has been a clear error of
judgment.” Id. “A presumption of validity attaches to the agency action and the burden of proof
-13- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 21 of 48
rests with the appellants who challenge such action.” Colo. Health Care Ass’n v. Colo. Dep’t of
Soc. Serv., 842 F.2d 1158, 1164 (10th Cir. 1988).
An agency’s stated reasons survive review under the arbitrary and capricious standard if
the agency has “examine[d] the relevant data and articulate[d] a rational connection between the
facts found and the decision made.” New Mexico ex rel. Richardson v. Bureau of Land Mgmt.,
565 F.3d 683, 713–14 (10th Cir. 2009) (quoting Citizens’ Comm., 513 F.3d at 1176); In re
Subpoena Duces Tecum Served on the Office of the Comptroller of Currency, 156 F.3d 1279,
1279 (D.C. Cir. 1998) (When a party challenges agency action as arbitrary and capricious, the
reasonableness of the agency’s action “is judged in accordance with its stated reasons.”) The
reviewing court considers only the agency’s administrative record to determine whether an
agency had sufficient support for its decision. Citizens for Alternatives to Radioactive Dumping
v. Dep’t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007). The “actual subjective motivation of
agency decisionmakers is immaterial as a matter of law - unless there is a showing of bad faith or
improper behavior.” Comptroller of Currency, 156 F.3d at 1280. If an agency decision “is not
sustainable on the basis of the administrative record made, then the [agency’s] decision must be . .
. remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973).
ARGUMENT
Plaintiffs have not shown that either the Associate Deputy Secretary or Acting Assistant
Secretary for Land and Minerals Management acted arbitrarily and capriciously, or contrary to law. Here, the decision-maker in both instances acted in accordance with law and made a reasoned decision supported by the record. Additionally, Plaintiffs have failed to bring a cognizable claim under NEPA. Plaintiffs’ requested relief should therefore be denied.
-14- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 22 of 48
I. The Agency Decisions Were Not the Result of Either Irregular Processes or Undue Political Influence.
As an initial matter, the Court should reject Plaintiffs’ attempts to change the standard of review by arguing the agency decision-making was either irregular or improperly influenced by political factors. Previously in this litigation, Plaintiffs attempted but failed to make a “strong showing” of bad faith or improper conduct by the agency sufficient to warrant expansive discovery or supplementation of the record. See Order Regarding Motions to Permit the
Introduction of Extra-Record Evidence and For a Protective Order (Mar. 2, 2009) (Doc. No. 77).
Consequently, Plaintiffs make no new allegations of bad faith in their present brief. Instead, they
now allege that the agencies employed “irregular” procedures, and that deviation from established
procedures destroys the presumption of administrative regularity. See Pls.’ Br. at 40–47. The
alleged irregularities include a failure to follow internal guidelines, and a bowing to undue
political influence from the Utah Congressional delegation. See Pls.’ Br. at 40–47. Both
arguments fail.
A. The Department Appropriately Followed Applicable Procedures.
Plaintiffs argue the agency violated guidelines contained in the Department of the
Interior’s Departmental Manual (Part 512, Chapter 2) that detail consultation with Tribes on
agency decisions that potentially impact Tribal resource assets. See Pls.’ Br. at 41; Ex. 5 to Pls.’
Br. (allowed into record as part of the Court’s March 2, 2009, Order). But here the Department
did engage in meaningful consultation with the Band. The Administrative Record is replete with
evidence of agency consultation with the Skull Valley Band during the years-long process of
-15- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 23 of 48
evaluating the applications.4/
Further, the Manual itself details that consultation is aimed at ensuring any potentially affected Tribe “may fully evaluate the potential impact of the proposal on trust resources” and that the Department, as trustee, may “fully incorporate tribal views into the decision-making process.” Ex. 5 to Pls.’ Br. The Department’s decade-long record of good-faith consultation with the Band more than meets both those obligations. The Band’s desired result was well- known—indeed, the Band itself was one of the entities proposing the project. Thus, Plaintiffs’ only argument is seemingly that (1) the Department did not inform the Band ahead of time that
4/ The following are Administrative Record citations to correspondence and meetings between the Band and the Department of the Interior. The list includes only the direct contacts with the Band leadership, and does not include the numerous correspondence with attorneys for the Band: AR SOL 2A-12 (Dec. 27, 1996, letter forwarding lease for review); AR SOL 3A-04 (Feb. 13, 1997, fax with suggested lease edits); AR SOL 3A-06 (Feb. 27, 1997, fax with suggested lease edits); AR SOL 3A-12 (Mar. 21, 1997, letter with lease); AR SOL 3D-04 (June 20, 1997, letter regarding Utah FOIA claim); AR SOL 5A-38 (Mar. 12, 1999, fax of news article); AR SOL 5B- 21 (Apr. 14, 1999, fax from Kevin Carter re: MOU); AR SOL 5B-22 (April 22, 1999, fax on members’ concerns); AR SOL 5B-23 (Apr. 22, 1999, fax on legislative amendment); AR SOL 5B-47 (May 10, 1999, letter on legislation); AR SOL 5B-50 (May 12, 1999, letter on BLM land nominations); AR SOL 5F-25 (Aug. 2, 1999, letter on state lands); AR SOL 5F-28 (Aug. 5, 1999, letter on legislation); AR SOL 5I-13 (Nov. 3, 1999, letter asking for support on legislation); AR SOL 6O-28 (Nov. 21, 2000, letter on lease amendments); AR SOL 6T-05 (Dec. 18, 2000, letter regarding public comment); AR SOL 6T-10 (Dec. 21, 2000, letter on NATO issues); AR SOL 7C-71 (Mar. 19, 2001, letter on economic venture proposals); AR SOL 7E-10 (Apr. 20, 2001, letter forwarding complaint); AR SOL 7L-69 (Nov. 28, 2001, alternative economic development proposals); AR SOL 8A-29 (Jan. 31, 2002, letter regarding lease approval); AR SOL 8B-09 (Mar. 11, 2002, follow-up letter to meeting); AR SOL 8B-22 (Mar. 25, 2002, letter on Tribal government dispute);AR SOL 8C-16 (Apr. 25, 2002, letter on alleged theft of Tribal lands); AR SOL 9C-08 (July 9, 2003, DOI tasking report); AR SOL 9C-31 (Oct. 1, 2003, letter on NHPA authority); AR SOL 9C-33 (May 5, 2003, Department tasking report); AR SOL 10A-35 (Apr. 1, 2004, fax regarding Tribal meeting); AR SOL 12A-39 (Feb. 24, 2006, letter urging decision on lease); AR SOL 12C-01, pp. 673– 76 (letter on right-of-way public comment process); AR SOL 12M-22 (Apr. 21, 2006, letter in follow-up to meeting); AR SOL 12M-27 (May 1, 2006, response letter); AR SOL 12M-34 (May 17, 2006, response letter); AR SOL 12M-44 (June 26, 2006, meeting notes); AR SOL 12M-46 (June 30, 2006, letter); AR SOL 14A-07 (undated letter on land exchange).
-16- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 24 of 48
the Department planned not to approve the lease and to deny the right-of-way applications; and
(2) that the Department did not follow the Band’s preferred action.
For the first, Plaintiffs ignore the fact that the Band made clear it wanted a decision
approving the lease, and it wanted it soon. See AR SOL 12M-22, pp. 1–3. For the second,
Plaintiffs fail to recognize that the Secretary’s trust relationship extends beyond simply obeying
the Band’s preferences to “protection of the trust res as a future homeland and productive land base for the Band through the prudent exercise of informed discretion after considering all relevant factors.” AR SOL 12N-07, pp. 18–19. Contrary to what Plaintiffs seem to assume,
“[c]onsultation is not the same as obeying those who are consulted. The [Plaintiffs] were heard, even though their advice was not accepted.” Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1103
(9th Cir. 1986); see also Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995)
(“Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views to the BIA decision maker.”).
In support of their argument on “irregular procedures,” Plaintiffs also inappropriately rely on Cotton Petroleum Corporation v. U.S. Department of the Interior, 870 F.2d 1515 (10th Cir.
1989). In Cotton, the Tenth Circuit determined that the Secretary’s actions were arbitrary and capricious because “[t]he Secretary did not articulate the grounds for his decision or the essential facts upon which it [was] made.” Id. at 1527. In particular, the Secretary did not address “the very factors required under the guidelines he issued and he made no effort to explain his failure to do so.” Id. at 1526.5/ Here, as detailed above and in the sections that follow, the agency did not
5/ Plaintiffs inappropriately expand the ruling in Cotton to argue that any “deviation from agency procedures and regulations demonstrates that the decisions are not entitled to the deference (continued...)
-17- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 25 of 48
ignore either its guidelines or the required statutory factors.
B. The Department’s Decisions Did Not Result From Improper Political Influence.
Plaintiffs next argue that the agency based its decisions on improper political influence.
This argument also fails. While not explicitly claiming bad faith, Plaintiffs assert that the
agency’s decisions “relied on and accommodated the views of Utah politicians.” Pls.’ Br. at 43.
But Plaintiffs ignore the fact that public officials submitted their views in response to BLM’s
invitation for public comment. Letters were received from thousands of Utahns—including
Senators, Representatives, the Governor, mayors, environmental organizations, school children
and other ordinary citizens—opposing the transport and storage of spent nuclear fuel in the
State.6/
5/(...continued) normally afforded administrative decisions.” See Pls.’ Br. at 1. Clearly this is overreaching. Whether the agency abused its discretion is not judged solely on whether the agency precisely followed prior departmental procedures or guidelines. Rather, the determination is whether the decision-maker set forth a reasoned explanation and discussed and analyzed all the essential facts upon which it was made.
6/ Approximately eighty percent of the 9,600 comments received are negative (AR SOL 12M-50, p. 1). See, e.g., AR SOL 12M-50, pp. 4–5, 67–70 (Letters from Reps. Matheson, Bishop, and Cannon); AR SOL 12M-50, p. 8 (Letter from First Presidency of Church of Jesus Christ of Latter-day Saints asking for support to develop new options for disposal of nuclear waste); AR SOL 12M-50 pp. 9–10, 351 (Letter from Women Concerned/Utahns United voicing their opposition to plan); AR SOL 12M-50 pp. 10, 363–66 (Glen Canyon Group Sierra Club - Overwhelming opposition to site from Utah); AR SOL 12M-50 pp. 32–54 (Letters from Utah elementary school students); AR SOL 12M-50, p. 197 (Letter from Carlene Walker, Utah State Senator); AR SOL 12M-50, p. 198 (Letter from Howard Stephenson, Utah State Senator); AR SOL 12M-50, p. 201 (Letter from Lyle Hillyard, Utah State Senator); AR SOL 12M-50, p. 202 (Letter from Scott McCoy, Utah State Senator); AR SOL 12M-50, p. 205 (Letter from LaWanna Shurtliff, State Representative); AR SOL 12M-50, p. 206 (Letter from leadership of State House of Representatives); AR SOL 12M-50, p. 208 (Letter from Todd Kiser, State Representative; AR SOL 12M-50, p. 209 (Letter from Sheryl Allen, State Representative); AR SOL 12M-50, p. 211 (Letter from David Clark, State Representative); AR SOL 12M-50, p. 212 (Letter from Thomas (continued...)
-18- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 26 of 48
On July 18, 2006, the BLM Salt Lake Field Office prepared a summary for the BLM State
Director analyzing the last round of public comments. See AR 12M-50 p. 1–3. Contrary to
Plaintiffs’ argument, it is a fair-minded document with the comments of the Skull Valley Band
and PFS are prominently featured—not “buried”—along with other comments in support.
Plaintiffs even admit that BLM staff specifically retrieved the Skull Valley Band’s letter
supporting the project from the thousands of comments, attached it to the Field Office
memorandum, and forwarded it to the decision-makers in Washington. Pls.’ Br. at 47 (“To the
credit of the Salt Lake BLM field office, they plucked the Band’s May 8 letter, the one discussing
Goshute treaty rights, out of the ‘protest bin,’ and sent it to Washington with [BLM Area
Manager] Glenn Carpenter’s July 18 memorandum.”); see AR SOL 12M-50, pp. 299-302.
Nonetheless, the vast majority of the comments opposed the project. A record of public
comments heavily weighted in opposition to an agency approval hardly supports an allegation
that undue political influence led to the agency decisions here.
Instead, comments from both public officials and the general public raised a number of
6/(...continued) Hatch and Roger Barrus, Utah State Senate and House Chairs, Natural Resources, Agriculture, and Environment Interim Committee); AR SOL 12M-50, pp. 224–25 (Letter from Utah Transportation Commission expressing concern about traffic interfering with public transportation corridors); AR SOL 12M-50, p. 226 (Letter from Patti Harrington, State Superintendent of Public Instruction and member of Utah Technology Council); AR SOL 12M-50, pp. 229–30 (Letter from Salt Lake Valley Conference of Mayors expressing concern about private entity and public safety); AR SOL 12M-50, p. 242 (Letter from Mayor of Cottonwood Heights); AR SOL 12M-50, pp. 244–54 (Resolutions of Clinton City and Fruit Heights); AR SOL 12M-50, p. 255 (Letter from Alison McFarlane, Senior Advisor for Economic Development for Salt Lake City, expressing concern about effects of project on economy); AR SOL 12M-50, pp. 256–57 (Letter from Mayor of Sandy City); AR SOL 12M-50, pp. 258–59 (Letter from Mayor of Provo City); AR SOL 12M-50, p. 349 (Letter from Senior Class President, Associated Students of the University of Utah).
-19- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 27 of 48
questions regarding the “technical nature of the entire project” and the inadequacy of the analysis of the proposed ITF. See supra n.6. The BLM Area Manager agreed and opined that the BLM
“does not have all the required information related to the ITF as it relates to security and jurisdiction.” AR SOL 12M-50, p. 2. The Acting Assistant Secretary therefore determined he did not have sufficient support for a decision to grant the right-of-way. The decision is fully supported by the record and is not, as Plaintiffs argue, acquiescing to the “views of Utah politicians.” The Court has already found that “there is no indication that Defendants, in reaching the challenged agency decisions, improperly considered any political factors” (March 2, 2009,
Order at 25), and Plaintiffs offer no new evidence here.
II. Associate Deputy Secretary Cason Made A Well-Reasoned Conclusion, Supported by the Record, Not to Approve the Lease.
The Associate Deputy Secretary, in not approving the lease, acted well within the discretion 25 U.S.C. § 415(a) grants to the Secretary of the Interior. The Associate Deputy
Secretary made a reasoned conclusion, supported by the record, that uncertainties surrounding if and when the nuclear waste would ever leave the Band’s Reservation, and the Department’s ability to enforce the lease terms, made it imprudent for the Department, as the Band’s trustee, to approve the lease.
A. Section 415(a) Grants the Secretary Wide Discretion in Deciding Whether to Approve Leases.
The Secretary’s approval of Tribal business leases is governed by 25 U.S.C. § 415(a),
which states:
Prior to approval of any lease or extension of an existing lease pursuant to this section, the Secretary of the Interior shall satisfy himself that adequate consideration has been given to the [five listed factors].”
-20- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 28 of 48
25 U.S.C. § 415(a). Section 415(a) “places a duty on the Secretary to ‘adequate[ly] consider[ ]’ the enumerated factors before approving a long-term lease.” Brown v. United States (“Brown
II”), 42 Fed. Cl. 538, 552 (1998) (modifications and emphasis in original). But Section 415(a) affords the Secretary “broad discretion in ‘satisfying himself’ that ‘adequate consideration’ has been given.” Webster v. United States, 823 F. Supp. 1544, 1549–50 (D. Mont. 1992) (emphasis added). The statute “allows wide judgment on the part of the Secretary to determine when he is satisfied, [and] what constitutes ‘adequate consideration.’” Id. at 1549. Thus, contrary to
Plaintiffs’ assumptions (see Pls.’ Br. at 24–25), Section 415(a) does require the Secretary to be satisfied all the factors have been adequately considered before approving a lease, and grants the
Secretary wide discretion in making that determination.
This Court, in addressing litigation by the State of Utah on the Band’s lease application, has stated that “in approving or rejecting leases pursuant to § 415(a), the Secretary acts in a trust or fiduciary capacity.” Utah v. Dep’t of the Interior, 45 F. Supp. 2d at 1283. The Court noted that “[t]he legal attributes of such a relationship include a duty on the part of the trustee to act solely in the best interests of the trust beneficiary.” Id. The Secretary must administer trust property with “such care and skill as a man of ordinary prudence would exercise in dealing with its own property.” See Brown II, 42 Fed. Cl. at 563 (quoting Restatement (Second) of Trusts §§
169–185 (1959)).
B. The Associate Deputy Secretary Acted Within His Discretion By Not Approving the Lease Absent Reliable Assurances as to the On-Going Protection of the Band’s Reservation.
Here, the Associate Deputy Secretary analyzed the lease in the context of the Sectoin
415(a) and Department’s trust relationship with the Band and ultimately concluded that prudence
-21- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 29 of 48
did not dictate approving the lease. See AR SOL 12N-07, p. 19. The Associate Deputy Secretary based his concerns on, inter alia, the potential that the “temporary” facility could turn into a
permanent one, and the lack of information surrounding the Department’s ability to enforce the
lease terms. See AR SOL 12N-07, pp. 25–29. The combination of the two counseled against
approving the storage of high-level nuclear waste on Tribal land without a viable exit strategy.
See AR SOL 12N-07, pp. 25–29.
1. The Associate Deputy Secretary Made a Reasoned Conclusion On The Uncertainty of Future Waste Removal.
The Associate Deputy Secretary was primarily concerned that the spent nuclear fuel
would never actually leave the Reservation. See AR SOL 12N-07, pp. 26–29. The NRC conditioned the ISFSI’s status as a “temporary facility” on the near-term availability of a permanent spent nuclear fuel repository. See AR SOL 7N-01, p. 89. In fact, the NRC recognized
that categorizing the facility as “temporary” was based on a very large assumption that a
permanent repository would be available at the end of the Skull Valley facility’s lease and
license. See AR SOL 7N-01, pp. 23–24. Originally, this included a prediction that a permanent
facility would be open by 2010. See AR SOL 7N-01, p. 45. The FEIS therefore concluded that it
was unnecessary to analyze any potential consequences from material remaining on the
Reservation. See AR SOL 7N-01, p. 89.
By the date of the Cason Decision, however, the Department of Energy’s estimate for
identifying, constructing, and operating a permanent repository had progressed from a finding that
a repository would be available in 2007–2009, to a prediction that one will be available before
2025, to a prediction that one might be available before 2025. See AR SOL 12N-07, pp. 27–28; compare Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984) (formerly codified at
-22- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 30 of 48
10 C.F.R. pts. 50 and 51), with Waste Confidence Decision, 55 Fed. Reg. 38,474 (Sept. 18, 1990)
(formerly codified at 10 C.F.R. pt 51). By September 2006, no license application for a
permanent facility had even been submitted to the Department of Energy. See AR SOL 12N-07,
p. 28. Thus, the Band was asking the Secretary to approve a lease allowing high-level nuclear
waste onto the Reservation under a plan that, by its own terms, depended greatly upon eventually
moving the waste to a permanent repository that, now, may never come to be.7/ The Associate
Deputy Secretary concluded that approving the lease in that circumstance would be contrary to
the United States’ trust relationship with the Band. See AR SOL 12N-07, p. 29.
The Associate Deputy Secretary by no means invented the proposition that reliance on
Yucca Mountain or any other permanent repository was less than prudent. The cities of Salt Lake
City, Brigham, and Ogden, Utah, all passed resolutions documenting their collective fears that the
planned storage facility would be much more permanent. See AR SOL 12M-50, pp. 231–38,
264–67. The Utah State Democratic Committee commented that the proposed storage site’s
status as “temporary” was a misnomer in light of the uncertainty surrounding a permanent storage
site. See AR SOL 12M-50, pp. 344–45. The President of the Utah State Senate, commenting on
the behalf of Utahns, expressed similar concern over the proposed facility’s status as
“temporary”. See AR SOL 12M-50, pp. 188–91; see also AR SOL 12M-50, pp. 206, 211. The
7/ Plaintiffs misinterpret the proposed lease’s relationship with Yucca Mountain. See Pls.’ Br. at 31–33. While the trust relationship may not require BIA to ensure where the high-level nuclear material goes once it leaves the Reservation, it most certainly includes a responsibility to ensure it has somewhere to go. Thus, Plaintiffs ignore a very substantial and practical question—what happens at the end of the license and lease periods when the nuclear waste is required to leave the Reservation but there is nowhere for it go? It was this uncertainty, not necessarily the fact that Yucca Mountain may or may not exist, that led to the Cason Decision. See AR SOL 12N- 07, pp. 28–29. Any emphasis on Yucca Mountain results from the Department of Energy’s—not the Department of the Interior’s—decisions on where to locate any permanent repository.
-23- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 31 of 48
Confederated Tribes of the Goshute Reservation8/—with a Reservation sixty-five miles from the
Skull Valley Band’s Reservation—expressed concern that a permanent repository would never come to fruition. See AR SOL 5B-65, pp. 2–3.
The record provides no assurance to the contrary. The FEIS itself explicitly excluded any consideration of Yucca Mountain and “questions about the future viability of that site.” See AR
SOL 7M-01, p. 605. Further, even if Yucca Mountain comes to life, there is no certainty that all the nuclear waste would be removed from the Reservation before the license and lease expired.
See AR SOL 9A-27, pp. 5–13. The “uncertainty concerning when [the spent nuclear fuel] might leave trust land . . . counsel[ed] disapproval of the proposed lease.” AR SOL 12N-07, p. 29.
2. The Associate Deputy Secretary Made a Reasoned Conclusion Regarding Police Protection and the Department’s Ability to Enforce the Lease.
The Associate Deputy Secretary also analyzed the project within the realm of Section
415(a)’s requirement to satisfy himself that police protection had been adequately considered.
See AR SOL 12N-07, pp. 24–26. The Department of the Interior is initially responsible for law enforcement on Indian reservations. See AR SOL 12N-07, p. 24; 25 U.S.C. § 2802. Here, however, the Associate Deputy Secretary was not satisfied that sufficient consideration had been given to whether there were sufficient resources to “provide the round-the-clock law enforcement services required due to additional traffic and other activities on the Reservation as a result of the
8/ The Confederated Tribes of the Goshute Reservation is a federally-recognized Tribe with a reservation partly located sixty-five miles to the west of the Skull Valley Band’s Reservation. “The members of the Goshute Tribe and the Skull Valley Band are in many cases literal first- cousins, with many individuals in the separate Tribes sharing the same grandparents. Tribal members often intermarry. As a result of their close historical and current relationships, the members of the Goshute Tribe frequent and even reside on the reservation of the Skull Valley Band (and vice versa).” AR SOL 5B-65, p. 2.
-24- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 32 of 48
proposed ISFSI.” AR SOL 12N-07, pp. 25.
The record, for example, states the ISFSI would result in a twenty-five percent increase in the use of Skull Valley Road. See AR SOL 07M-01, pp. 272–73. The Confederated Tribes of the
Goshute Reservation expressed similar concerns that the Skull Valley Band did not have a police department, and that BIA could not rely on the county for such services. See AR SOL 6M-02, p.
5. To overcome a lack of any law enforcement agreement between the county and BIA, Plaintiffs
reference an old agreement. See Pls.’ Br. at 28 (citing Pls.’ Ex. 6). But the agreement, in addition
to being antiquated and therefore irrelevant, is clearly outside the scope of the agencies’
administrative record. Even if applicable, the agreement says nothing about law enforcement
relative to high-level nuclear waste.
In addition to general law enforcement, the Department holds a duty to enforce lease
terms.9/ See AR SOL 12N-07, p. 25–26. Leasing regulations require the Department to “ensure
that tenants comply with the operating requirements in their leases” and, if necessary, take
“emergency action as needed to preserve the value of the land.” 25 C.F.R. § 162.108(b).
Regulations authorize the Department to enter the lease premises “to protect the interests of the
Indian landowner.” Id. § 162.617(a). Here, the Associate Deputy Secretary was unable to satisfy
himself that adequate consideration had been given to the issue. See AR SOL 12N-07, pp. 26, 29.
“The highly technical nature of the proposed ISFSI effectively eliminate[d] the Secretary’s ability
to inspect the activities and enforce the lease”. AR SOL 12N-07, p. 25. Quite simply, the BIA
9/ In arguing against this portion of the decision, Plaintiffs attempt to couch the issue as a new requirement to “monitor” lease activities. See Pls.’ Br. at 29. But, despite its heading, the Cason Decision makes clear that the issue is the Department’s ability to enforce the lease terms, as required by regulation. See AR SOL 12N-07, pp. 25–26.
-25- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 33 of 48
lacked the resources and expertise to adequately regulate a lease that involved the storage of high- level nuclear waste. See AR SOL 12N-07, p. 26. The Department, for example, could not fulfill its regulatory duties if it became necessary to order PFS to vacate the facility. See AR SOL 12N-
07, p. 26 (citing 25 C.F.R. § 162.619). The Associate Deputy Secretary therefore determined it would not be prudent to approve the lease. See AR SOL 12N-07, pp. 26.
The concerns regarding enforcement are buttressed with ample support from the record.
The record did not discuss a plan for decommissioning the facility, and the FEIS only noted that a plan would have to be prepared and submitted at least twelve months beforehand. See AR SOL
7M-01, p. 301; see also AR SOL 3D-05, pp. 103–30 (preliminary decommissioning plan).
Further, decommissioning is discussed only in terms of lease termination, ignoring the potential for an order to vacate under 25 C.F.R. § 162.619. See AR SOL 7M-01, pp. 145–48. More telling, the record did not contain an environmental review of potential impacts from decommissioning, including potential impacts from removing the spent nuclear fuel from the Reservation. See AR
SOL 7M-01, pp. 145–46. The fate of any potentially contaminated storage casks would not be determined until the final decommissioning plan. See AR SOL 7M-01, p. 146.
In attempting to make the difficult argument that the Associate Deputy Secretary should have found himself satisfied on police protection, Plaintiffs misinterpret the Section 415(a) standard and argue the agency did give adequate consideration to police protection. See Pls.’ Br. at 27. The “adequate consideration” required by Section 415(a), however, is not an objective test.
See Webster, 823 F. Supp. at 1549–50. Further, Plaintiffs’ arguments ignore the nature of what the Band’s application sought. The lease here is not for a gas station or shopping center; it is for the potentially permanent storage of high-level nuclear waste. This made “the trustee-delegate’s
-26- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 34 of 48
ultimate regulatory means of protecting the Indian landowner unworkable, and it is not prudent to approve a lease that has this consequence.” AR SOL 12N-07, p. 26.
3. Additional Section 415(a) Factors.
The Associate Deputy Secretary also determined he had not been satisfied that adequate consideration had been given to the relationship between the leased land and neighboring land, and the facility’s environmental effects. See AR SOL 12N-07, pp. 20–23. Regarding the relationship with neighboring lands, the Associate Deputy Secretary’s lack of satisfaction resulted from BLM’s determination that the rights-of-way were not in the public interest. See AR SOL
12N-07, p. 23. Plaintiffs argue the Cason Decision was arbitrary and capricious in this regard
because it did not identify possible adverse impacts. See Pls.’ Br. at 33. But this misses the
point. As detailed below, the Acting Assistant Secretary’s determination on the right-of-way
“effectively eliminated the last viable analyzed alternative” for transporting the spent nuclear fuel
to the Reservation. See AR SOL 12N-07, p. 23. As BLM—the federal lands manager—had
determined the right-of-way was not in public interest, the Associate Deputy Secretary could not
satisfy himself that “construction and operation of the facility is compatible with neighboring
lands.” AR SOL 12N-07, p. 23.
Two then-recent events also led to the Associate Deputy Secretary’s lack of satisfaction
regarding consideration given to environmental effects: construction of the Tekoi Balefill waste
disposal site, and Congress’s creation of the Cedar Mountain Wilderness Area. See AR SOL
12N-07, pp. 20–22. In again making the difficult argument that the Associate Deputy Secretary
should have found himself satisfied, Plaintiffs confuse NEPA’s procedural requirements with
Section 415(a)’s factors. NEPA is a procedural statute, requiring agencies to recognize and
-27- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 35 of 48
consider the environment before taking a “major federal action.” See Vt. Yankee, 435 U.S. at 558.
Section 415(a), on the other hand, requires the Secretary to satisfy himself that adequate
consideration has been given to environmental effects. See Brown II, 42 Fed. Cl. at 552. Thus, the Associate Deputy Secretary’s determination under Section 415(a) is a distinct question from whether the environmental analyses complied with NEPA.
Here, the Associate Deputy Secretary was not satisfied under Section 415(a) and the trust relationship that adequate consideration had been given to, inter alia, the Tekoi Balefill and
Cedar Mountain Wilderness Area. See AR SOL 12N-07, p. 20–22. The Associate Deputy
Secretary therefore believed he could not prudently act to approve the lease. See AR SOL 12N-
07, pp. 21–22. The public was similarly concerned as to how the two recent events related to the proposed project. See AR SOL 12M-50, pp. 112–22 (comments from State of Utah); AR SOL
12M-50, pp. 269 (comments from Salt Lake City mayor). The Associate Deputy Secretary therefore made a more than well-reasoned conclusion not to approve the lease.
C. The Department’s Trust Relationship with the Band Does Not Require Absolute Deference to the Band’s Desired Land Use.
Plaintiffs attempt to evade the well-reasoned Cason Decision by declaring that 25 C.F.R. §
162.107 eliminated the Secretary’s discretion not to approve a lease under 25 U.S.C. § 415(a).
See Pls.’ Br. at 14–20. Section 162.107 states the Secretary “will defer to the landowners’
determination that the lease is in their best interest, to the maximum extent possible.” 25 C.F.R. §
162.107. But Plaintiffs’ conclusion ignores several key aspects of Secretary’s discretionary
authority, and its context given the Congressional directive and general trust relationship. First,
Congress, not the executive branch, defined the responsibilities and limited the Secretary’s
authority to approve. See 25 U.S.C. § 415(a). The Department could not and should not be
-28- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 36 of 48
construed to have eliminated or altered, via regulation, Section 415(a).
More importantly, Section 162.107 by its own accord does nothing to eliminate the
Secretary’s authority to review a lease, or to not approve when appropriate. The regulation itself
only requires deference to the “maximum extent possible.” See 25 C.F.R. § 162.107(a). Plaintiffs
manipulate the word “possible” in an effort to create a link with their argument that the
Department failed to properly consult with the Band. See Pls.’ Br. at 17–18. As noted above,
however, the Department consulted extensively with the Band over the life of the review process,
and the Band’s position on the lease was well established. But, regardless of the 2001 regulatory
amendments, the Secretary still retains discretion regarding the factors that Section 415(a) and
other regulatory provisions delineate. Plaintiffs’ argument that 25 C.F.R. § 162.107(a) requires
the Department to defer exclusively to the Band’s determination on its best interest wholly
contradicts the Congressional scheme directing the Secretary to be satisfied that adequate
consideration had been given to the Section 415(a) factors. To have any meaning within Section
415(a)’s framework, Section 162.107 must leave room for the trustee to do exactly what the
Secretary did here—disapprove a lease because he was not satisfied adequate consideration had
been given, regardless of the Tribe’s conclusions on the issues.
Finally, Plaintiffs’ reliance on United States v. Navajo Nation, 537 U.S. 488 (2003), is
misplaced. Navajo Nation does not stand for the proposition that the Secretary retains no
discretion to disapprove a lease if not satisfied that the Section 415(a) factors have been
adequately considered. In fact, the case did not even involve the Indian Long-Term Leasing Act.
And, even if Navajo Nation’s conclusion on the Indian Mineral Leasing Act’s coal provisions
extended to the Indian Long-Term Leasing Act, as Plaintiffs argue, the fact that a Tribe could not
-29- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 37 of 48
claim money damages or an enforceable duty under Section 415(a) would not give the Secretary
license to ignore the Section 415(a) factors or eliminate his responsibility to satisfy himself all the
factors had been met.
As stated in the Cason Decision, “[a]s trustee-delegate, the Secretary has the complex task
of weighing the long-term viability of the [Reservation] as a homeland for the Band (and the
implications for preservation of Tribal culture and life) against the benefits and risks from
economic development activities proposed for property held in trust by the United States for the
benefit of the Band.” AR SOL 12N-07, p. 18. Certainly, the Band should select a preferred
course of action among the various potential options for leasing its land. But that ultimate
selection is still subject to Secretarial approval, which requires the Secretary, or his or her
designee, to adequately assure him- or herself that approval would be appropriate in light of the
statutory factors.
III. Acting Assistant Secretary Calvert Made a Well-Reasoned Decision, Supported by the Record, to Deny the Right-of-Way.
Plaintiffs argue that the Calvert Decision is arbitrary and capricious because “it is based
on an incomplete analysis of both public land management issues and environmental concerns.”
Pls.’ Br. at 36. Again, however, Plaintiffs confuse NEPA’s procedural requirements with the
APA’s requirement that the federal action be supported by the record. Here, the Acting Assistant
Secretary made a thorough and complete analysis of the existing record and determined it did not
support granting PFS’s right-of-way applications. Furthermore, he identified significant
disadvantages to the ITF right-of-way, which Congress’s creation of the Cedar Mountain
Wilderness Area made the only viable alternative. Accordingly, there is abundant record support
for the agency’s decision to deny the right-of-way based on both the insufficient analysis of
-30- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 38 of 48
potential impacts and harms associated with the ITF right-of-way, and a determination that certain impacts and potential harms do exist.
First, the decision-maker determined that there were significant concerns with an ITF and the transportation of spent nuclear fuel by truck to a storage location on the Goshute Reservation.
The moving of heavy-haul truck trailers would have an impact on, and create a potential threat to, local traffic on the transport road. PFS admitted as much in its right-of-way application. See AR
SOL 4B-28, p. 2. The Acting Assistant Secretary noted that the transport road is only twenty feet wide at places with no shoulder. AR SOL 12M-32, pp. 32–33; AR SOL 12N-08, p. 6. The heavy haul trucks needed to haul the spent nuclear fuel are twelve feet wide. See AR SOL 12N-08, p. 6.
The inadequacy of the road’s size is further complicated by the estimated 130 to 160 truck trips per day on this road to and from the Tekoi Balefill, a disposal site for bundled waste that the
Goshute Tribe opened on its Reservation. See AR SOL 12N-08, p. 6.
Plaintiffs contest this determination and claim that it is contradicted by the 2001 FEIS, which found that impacts on local traffic due to the use of the ITF would be small. See Pls.’ Br. at 37. As the ROD points out, however, the Acting Assistant Secretary based his concern on the now-present Tekoi Balefill site. See AR SOL 12N-08, p. 23. The BLM Area Manager of the Salt
Lake Field Office voiced a concern over increased traffic in a July 18, 2006, memorandum. The
Area Manager noted that “[t]he current semi-trailer traffic on the Skull Valley Highway . . . . is causing highway deterioration. Additional heavy-haul trucking [from the transport of spent nuclear fuel canisters] would increase degradation of the highway.” AR SOL 12M-50, p. 2.
Reflecting this concern, Acting Assistant Secretary Calvert also noted that impacts from removal of the spent nuclear fuel along Skull Valley Road, would further jeopardize the road, especially if
-31- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 39 of 48
occurring over a brief period of time. See AR SOL 12N-08, pp. 5–6.
The inadequacy of the Skull Valley Road’s vehicle capacity and safety also led to concerns that spent nuclear fuel casks may be stored at the ITF while awaiting truck transport.
See AR SOL 12N-08, p. 7–8. Plaintiffs state that there “is no evidence in the record to support this theory.” See Pls.’ Br. at 38. But concern over the record’s study of impacts from additional truck traffic on an undersized road logically leads to another concern that problems with the road could lead to or prolong storage at the ITF. The Acting Assistant Secretary concluded that
“[c]areful consideration of these questions is necessary because of the uncommon nature of the cargo being transported.” AR SOL 12N-08, p. 8. Indeed, the Acting Assistant Secretary also noted that workers at the ITF may be exposed to additional radiation while transferring spent nuclear fuel shipping casks from railcars to the heavy-haul trailers. See AR SOL12M-50, pp. 9,
346–48. Such an impact is not, as Plaintiffs suggest, an “unfair comparison” to the previously
proposed but subsequently unavailable rail spur. It is a potential harm at the ITF that may have a
significant impact on worker safety.
Finally, Plaintiffs argue that the Cason and Calvert Decisions contradict one another and
are therefore arbitrary and capricious. Pls.’ Br. at 39–40. Plaintiffs misinterpret the agency’s
decisions. The Calvert Decision determined that a permanent storage facility, rather than
Plaintiffs’ proposed temporary facility, would better serve the public interest given, inter alia, a
lack of Department of Energy funding and oversight for the latter. See AR SOL 12N-08, p. 8.
The Cason Decision, on the other hand, determined approving the lease would be contrary to the
trust relationship absent assurances that a permanent facility would be available at the end of the
lease. See AR SOL 12N-07, p. 29. Both points are legitimate. The proposed temporary facility’s
-32- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 40 of 48
drawbacks favor permanent storage of spent nuclear waste at Yucca Mountain or any other
permanent repository, and counsel not approving Plaintiffs’ project. But, if Plaintiffs’ proposal
were approved, a failure to provide a permanent repository would only further jeopardize the
Band’s trust lands. Thus, the decisions are compatible and support the reasoning that the right-
of-way and the lease on tribal lands are not in the public interest.
IV. Plaintiffs Have Failed to Present a Cognizable Claim Under NEPA.
Plaintiffs also argue the Department failed to comply with NEPA regulations in issuing
the Cason and Calvert Decisions. See Pls.’ Br. at 20–23, 34–36. But their argument is less than
clear. Plaintiffs argue the Department violated NEPA regulations governing supplementation of
environmental analyses, yet do not themselves argue that the environmental analyses were
inadequate. No further clarity is needed, however, because Plaintiffs lack standing to bring a
claim under NEPA. Further, NEPA did not require supplementation in the circumstances here
and, even it had, the bases for the Associate Deputy Secretary’s and Acting Assistant Secretary’s
decisions here mean further environmental review would, at the present time, be meaningless.
A. Plaintiffs’ Lack Standing to Assert a Claim Under NEPA.
Plaintiffs’ NEPA claims fail because Plaintiffs lack standing to bring a claim under the
statute. “Because the National Environmental Policy Act does not contain a private right of
action . . . , in addition to satisfying the constitutional standing requirements, a plaintiff must
establish it is ‘adversely affected or aggrieved . . . within the meaning of a relevant statute’ by
some final agency action.” Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th
Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “To be adversely
affected within the meaning of the National Environmental Policy Act, [Plaintiffs] must establish
-33- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 41 of 48
they have suffered an injury in fact falling within the ‘zone of interests’ protected by the National
Environmental Policy Act.” Id. (citations omitted). NEPA’s protected interests include
environmental interests, as well recreational and aesthetic use of land. See id. (citing Lujan v.
National Wildlife Federation, 497 U.S. 871, 886 (1990)); Ashley Creek Phosphate Co. v. Norton,
420 F.3d 934, 940 (9th Cir. 2005) (“We have long described the zone of interests that NEPA
protects as being environmental.”)
Here, Plaintiffs do not attempt to clarify what their NEPA-protected interest may be.10/
Nonetheless, Plaintiffs’ brief makes clear their only interests are economic in nature—a hopeful
business venture—and the Band’s claimed interest in its trust relationship with the Department.
See generally Pls.’ Br. But neither falls within NEPA’s zone of interests. NEPA does not
protect economic interests absent some further alleged injury to environmental values. See
National Ass’n of Home Builders v. United States Army Corps of Enn’rs, 417 F.3d 1272, 1287–88
(D.C. Cir. 2005); Taubman Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475, 481 (4th Cir.
2003); Nev. Land Action Ass’n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)
(“The purpose of NEPA is to protect the environment, not the economic interests of those
adversely affected by agency decisions.”). The Eighth Circuit has held lesees of Tribal land lack
standing to bring NEPA challenges to BIA lease decisions. See Rosebud Sioux Tribe v. McDivitt,
10/ Even if Plaintiffs had claimed an environmental, recreational, or aesthetic interest, the agency decisions here would not jeopardize that interest at all. By selecting the no action alternative, the Department acted only in the sense of maintaining the status quo. Multiple courts have held that agency action to maintain the status quo does not give rise to a cognizable claim under NEPA. See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir. 2002); Fund for Animals v. Thomas, 127 F.3d 80, 84 (D.C. Cir. 1997); Sabine River Auth. v. United States Dep’t of the Interior, 951 F.2d 669, 679–80 (5th Cir. 1992); Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166, 174–75 (D.D.C. 2000).
-34- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 42 of 48
286 F.3d 1031, 1037–39 (8th Cir. 2002). Similarly, Plaintiffs provide no support for the conclusion that NEPA’s purpose relates in any way to the United States’ trust relationship with
Tribes.
Any attempt to characterize Plaintiffs’ injury as “procedural” does not change that conclusion. “To challenge an agency’s procedural failing, a plaintiff must show that he or she has a concrete interest, that the procedures at issue were designed to protect that interest, and that the procedural irregularity threatens the plaintiff’s concrete interest.” Colo. Envtl. Coal. v. Wenker,
353 F.3d 1221, 1237 (10th Cir. 2004) (citing Defenders of Wildlife, 504 U.S. at 573 n.8). But
again, Plaintiffs here have failed to show any NEPA-protected interest, and they therefore lack
standing to challenge the agency decisions here under the statute.
B. NEPA Regulations Did Not Require the Agencies to Supplement the FEIS Here.
Even assuming standing, Plaintiffs present a unique yet flawed claim under NEPA.
Normally, local residents or organizations challenge agency action under NEPA to temporarily or
permanently halt the action in question until the agency has taken the requisite “hard look” at
potential environmental impacts. See, e.g., Chihuahuan Grasslands Alliance v. Kempthorne, 545
F.3d 884, 887–88 (10th Cir. 2008) (seeking to void and enjoin an oil and gas lease sale). But
Plaintiffs here do not seek to the halt the project in question—indeed, the Cason and Calvert
Decisions have effectively already done so by selecting the no action alternative. Instead,
Plaintiffs attempt to use NEPA review as a tool to press for approval of their project. But
Plaintiffs misinterpret NEPA and its implementing regulations.
Neither NEPA nor its implementing regulations required the Department to supplement
the FEIS in the present circumstances. Plaintiffs are correct that, in certain situations, NEPA
-35- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 43 of 48
requires agencies to supplement existing analyses. See 40 C.F.R. § 1502.9(c)(1). But NEPA’s requirements for environmental review—supplemental or otherwise—only apply to “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. §
4332(2)(C) (emphasis added). Regulations define “major federal action,” in relevant part, as
“new and continuing activities, including programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies[.]” 40 C.F.R. § 1508.18(a) (emphasis added). Such actions generally fall within one of four categories: “(1) Adoption of official policy
. . . (2) Adoption of formal plans . . . (3) Adoption of programs . . . [and] (4) Approval of projects
. . . by permit or other regulatory decision[.]” 40 C.F.R. § 1508.18(b). More simply, “NEPA may require an EIS whenever a reservoir is built, but NEPA does not require preparation of an EIS whenever a reservoir is not built[.]” Sabine River Auth. v. United States Dep’t of the Interior, 951
F.2d 669, 679 (5th Cir. 1992) (quoting lower court decision, 745 F. Supp. 388, 394 (E.D. Tex.
1990)).
Here, of course, the Department did not approve or adopt anything. The agency decisions to select the no action alternative removed the project’s status as a proposed major federal action that could significantly affect the environment.11/ See Marsh, 490 U.S. at 374 (finding supplementation only required “if there remains some ‘major federal action’ to occur”). The
United States District Court for the Western District of Washington reached a similar conclusion in a challenge to a U.S. Army Corps of Engineers (“Corps”) decision to deny a permit application. See Nw. Sea Farms v. U.S. Army Corps of Eng’rs, 931 F. Supp. 1515, 1523–24
11/ Agency approval of the lease and right-of-way, by contrast, likely would have been “major federal actions.” See Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972) (holding BIA’s approval of lease constituted a major federal action).
-36- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 44 of 48
(W.D. Wash. 1996). Citing 42 U.S.C. § 4332(2)(C), the court found “the Corps’ decision to deny the permit was classified as a ‘no action alternative.’ . . . and any need to prepare an EIS under
NEPA was not triggered.” Id. at 1523. Similarly, the Department’s decisions to select the no
action alternative here were not “major federal action[s] significantly affecting the quality of the
human environment” and thus did not trigger any further NEPA procedural requirements,
including any obligation to supplement the FEIS.
NEPA’s status as a procedural statute also means Plaintiffs’ reliance on Norton v.
Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55 (2003), is misplaced. See Pls.’ Br. at
22. In SUWA, the plaintiff sought to compel agency action under 5 U.S.C. § 706(1). See SUWA,
542 U.S. at 59–60. In reviewing the case, however, the Supreme Court determined the constructs
of compellable action under Section 706(1) are limited to suits seeking to compel “agency action”
that the agency is “required to take.” Id. at 64. As described above, NEPA did not require a
supplemental EIS in the present circumstances and the action is therefore not compellable under
Section 706(1).
C. The Timing of the Department’s Decision Was Well-Reasoned, And Any Further Environmental Review at the Present Time Would Be Meaningless.
Despite the jurisdictional and statutory problems with Plaintiffs’ NEPA claim, the
Associate Deputy Secretary and Acting Assistant Secretary made well-reasoned conclusions to
issue the decisions when they did. First, the Band had repeatedly requested the Department issue
its decisions. See AR SOL 12M-22, pp. 1–3; AR SOL 12M-27; AR SOL 12M-34, pp. 1–2. In
the face of demands from the Band, the Associate Deputy Secretary and Acting Assistant
Secretary acted upon the record before them, and determined that the record, at that time, did not
support approving the lease or granting the rights-of-way under their respective authorities.
-37- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 45 of 48
Contrary to Plaintiffs’ argument, and as described above, those decisions acted to prevent, rather
than define, arbitrary and capricious decision-making.
Second, the Cason and Calvert Decisions both stand on reasoning independent of any
further NEPA review. As “decisions under Section 415 must conform to the fiduciary standard
normally placed upon the United States when acting as trustee for the Indians[,]” the Associate
Deputy Secretary based his decision not to approve the lease on the fact that he was not satisfied under Section 415(a)’s requirements. See AR SOL 12N-07, pp. 18–29. “[Y]ears-long delays in construction of a permanent SNF repository, reflected in the Waste Confidence Decisions of the
NRC, provides no firm basis to determine when and under what circumstances SNF might be taken away from trust land if the proposed ISFSI is built.” AR SOL 12N-07, p. 19; see AR SOL
12N-07, pp. 26–29. The “uncertainty concerning when SNF might leave trust land, combined with Secretary’s practical inability to remove or compel its removal once deposited on the reservation, counsel[ed] disapproval of the proposed lease.” AR SOL 12N-07, p. 29 (emphasis in original). Even with supplemental environmental analyses, the uncertainty surrounding the
Department of Energy’s prospects for a permanent repository will remain a major concern in any lease proposal. Until that uncertainty can be remedied, any further environmental review of the proposed lease would be meaningless.
Similarly, absent a lease, any further supplemental environmental review of the right-of- way applications would be meaningless. The right-of-way was necessary for the transport of spent nuclear fuel to the proposed facility. See AR SOL 12N-08, p. 1. The Department, however, has made clear that approving the proposed lease at the present time would be imprudent absent some assurances regarding a permanent repository. Absent a lease for the facility, the issue of
-38- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 46 of 48
transporting the nuclear waste to the Reservation becomes moot, and any further review of the potential environmental effects therefrom would be meaningless.
CONCLUSION
Based on the foregoing, Defendants respectfully request Plaintiffs’ requested relief be
denied and the agency decisions upheld.
Respectfully submitted this 7th day of August 2009,
JOHN C. CRUDEN Acting Assistant Attorney General
By: /s/ Lee Leininger
R. LEE LEININGER U.S. Department of Justice Environment & Natural Resources Division 1961 Stout Street, Suite 800 Denver, CO 80294 (303) 844-1364 [email protected]
KRISTOFOR R. SWANSON U.S. Department of Justice Environment & Natural Resources Division P.O. Box 663 Washington, DC 20044 (202) 305-0248 [email protected]
BRETT L. TOLMAN United States Attorney JEANNETTE F. SWENT Assistant U.S. Attorney, USB # 6043 185 South State Street, #300 Salt Lake City, Utah 84111 (801) 325-3220
Attorneys for Federal Defendants
-39- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 47 of 48
Of Counsel:
Grant L. Vaughn Office of the Regional Solicitor U.S. Department of the Interior Salt Lake City, Utah
-40- Case 2:07-cv-00526-DME Document 83 Filed 08/07/09 Page 48 of 48
CERTIFICATE OF SERVICE
I hereby certify that on August 7, 2009, a copy of the DEFENDANTS’ RESPONSE BRIEF ON THE MERITS, was electronically sent via the CM/ECF system by the United States District Court, District of Utah to the following parties:
/s/ Karmen Robinson______Karmen Robinson Paralegal Specialist
Robert H. Scott, Esq. Thomas R. Barton, Esq. Michael Keller Vancott Bagley Cornwall & McCarthy (SLC) 36 S. State Street, Suite 1900 P.O. Box 45340 Salt Lake City, UT 84111 [email protected] [email protected]
Timothy A. Vollmann, Esq. 3301 R. Coors Rd., NW, Suite 302 Albuquerque, NM 87120 [email protected]
Margaret A. Swimmer, Esq. Hall Estill Hardwick Gable Golden Nelson, P.C. 320 S. Boston Ave., Suite 400 Tulsa, OK 74103 [email protected]
Jeannette F. Swent, Esq. U.S. Attorney’s Office Utah Salt Lake City, UT [email protected]
Kristofor R. Swanson, Esq. U.S. Department of Justice ENRD/NRS P.O. Box 663 Washington, D.C. 20044-0663 [email protected]