Oglala Sioux Tribe v. NRC, 45 F.4th 291

Background

Powertech sought an NRC source-material license to conduct in situ recovery (ISR) uranium mining at the Dewey-Burdock site in South Dakota; the site overlies uranium-bearing aquifers.
NRC had a 2009 generic EIS for ISR in the region and prepared a site-specific supplemental EIS for Dewey-Burdock; NRC invited 20 tribes (including the Oglala Sioux) to participate in scoping and surveys.
NRC conducted a 2013 field survey with seven tribes; the Oglala Sioux refused to participate over methodology and compensation disputes. NRC issued the final EIS and licensed Powertech in 2014, using a programmatic agreement to address properties discovered later.
The Oglala Sioux intervened before the Atomic Licensing Board, which found some NEPA and NHPA deficiencies (notably lack of individualized NHPA consultation and incomplete treatment of tribal cultural-resource information); the Commission affirmed some findings but left the license in place pending remediation.
Post-remand, NRC attempted consultations and proposed survey methodologies; negotiations with the Tribe failed. The Licensing Board and Commission concluded the Tribe’s cultural-resource information was effectively unavailable due to the Tribe’s refusal to cooperate, and they found NRC’s remaining NEPA/NHPA procedures reasonable.
The Tribe petitioned for judicial review; the D.C. Circuit denied the petition, finding NRC’s actions satisfied NEPA and NHPA requirements or that any defects were harmless or cured by public administrative orders.

Issues

Issue	Plaintiff's Argument (Tribe)	Defendant's Argument (NRC/Powertech)	Held
Failure to conduct formal NEPA scoping	NRC never performed a formal scoping process and failed to share scoping results with tribes	NRC engaged in notice, meetings, and information gathering that achieved scoping objectives; any formal-scoping omission was harmless	Even if formal scoping was omitted, error was harmless; record shows equivalent outreach and no prejudice to Tribe
EIS failure to address Tribe’s cultural resources / unavailability statement	EIS did not explain that tribal cultural-resource information was unavailable per CEQ rule and thus inadequately informed NEPA analysis	Board’s published findings (affirmed by NRC) explained unavailability; those public orders cure any EIS omission	No remand required: Board/Commission orders publicly explained unavailability and satisfied NEPA (supplementation outside EIS can cure defect)
Hydrogeologic baseline & boreholes	NRC deferred baseline data collection and left analysis of existing boreholes largely post-license, improperly allowing action before full analysis	EIS analyzed pre-license baseline data, planned for augmenting baselines during staged operations, and addressed impacts of historic boreholes and mitigation	NRC took a sufficient “hard look”; pre-license analysis was adequate and post-license testing was reasonable and not NEPA-defeating
Byproduct disposal plan and hearings	License issued without site-specific disposal plan; EIS insufficiently analyzed disposal, alternatives, stranded byproduct risk	Appendix A disposal-plan requirement applies only to former milling sites, not ISR; EIS analyzed disposal methods, transportation, White Mesa as likely facility, and conditioned operations on securing a disposal contract	NRC’s denial of hearing was proper; regulatory text forecloses the Tribe’s legal complaint and EIS analysis sufficiently addressed disposal and mitigation
Mitigation analysis	EIS lists mitigation without assessing efficacy; defers mitigation formulation until after licensing	EIS contains extensive mitigation analysis in multiple sections; further development post-EIS is permissible where impacts and measures were analyzed	Mitigation was adequately considered; no NEPA violation for continuing to refine measures after EIS

Key Cases Cited

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA is procedural and does not mandate particular substantive results)
Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (courts defer to reasonable agency factual/technical judgments)
NRDC v. NRC, 879 F.3d 1202 (D.C. Cir. 2018) (public, post-EIS administrative orders can cure EIS deficiencies and make remand pointless)
Friends of the River v. FERC, 720 F.2d 93 (D.C. Cir. 1983) (supplementation in a public opinion after investigation can obviate remand)
Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018) (prior remand concerning irreparable-harm standard in this matter)
Indian River Cnty. v. U.S. Dep’t of Transp., 945 F.3d 515 (D.C. Cir. 2019) (NEPA requires a ‘hard look’ at reasonably foreseeable impacts)
New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (failure to analyze effects of no permanent repository violated NEPA)
Am. Rivers v. FERC, 895 F.3d 32 (D.C. Cir. 2018) (agency cannot leave mitigation as merely anticipated and unspecified)
Chenery Corp. v. SEC, 332 U.S. 194 (1947) (courts may not accept new agency rationales offered only in litigation)
Nevada v. Dep’t of Energy, 457 F.3d 78 (D.C. Cir. 2006) (harmless-error approach to NEPA procedural deviations)
Shinseki v. Sanders, 556 U.S. 396 (2009) (harmless-error jurisprudence requires case-specific judgment)
Envirocare of Utah, Inc. v. NRC, 194 F.3d 72 (D.C. Cir. 1999) (limited exception to Chenery where outcome on remand is indisputably clear)