*1 in were violated rights his constitutional NATIONAL PARKS & CONSER- process. ASSOCIATION, VATION during post- had notice Given Schad Plaintiff-Appellee, of the need to de- proceedings
conviction family background his velop facts about v. assistance
support his claim of ineffective MANAGEMENT; LAND BUREAU OF counsel, sentencing and the information Department of United States time, together at with the available Defendants, Interior, develop that infor- opportunity afforded years, thirty-four in four with ex- mation funding request- all the tensions with ed, agree I with the district court Eagle Mountain, Inc.; Mine Kaiser in diligent failed he was Schad to show Corporation, Reclamation investigate present those efforts Defendants-Appellants.
facts state court. Charpied; Charpied; Laurence the Donna properly applied
The district court Society; v. governing Tay- standard from Williams Desert Protection Center for Community “a lor: whether Schad made reasonable Action and Environmen attempt, light of the information avail- Justice, Plaintiffs-Appellees, tal time, investigate pursue” able at the v. claim. his constitutional 529 U.S. analysis stop 1479. Its did not S.Ct. Department United States whether the predicate question
with the Interior, Defendant, actually developed factual basis was Rather, state court. its focus was on the Management; Bureau of Land National notice, information, time and resources Babbitt, Service; Park Bruce his Schad, available to well as on the causes as capacity Secretary official as delay. I not remand for an would Interior; Fry, in Tom his official ca evidentiary hearing diligence that was pacity Acting Director of the Bu requested required. neither nor As Schad Management; reau of Land Al develop did not the factual basis for his Wright, capacity in his official as Act ineffective assistance claim state court ing California Director of the State proceedings, evidentiary hearing no on the Management; Bureau of Land Tim would, that claim I may merits of be held. Salt, capacity in his official as Bureau therefore, affirm. Management of Land Des California Manager; Stanton,
ert District Robert capacity in his official as Director of Service, the National Park Defen dants, Eagle Mountain, Inc.; Mine Corporation, Reclamation Defendants-Appellants. *2 National Parks & Conservation
Association, Plaintiff-
Appellee,
v. Interior, Department
United States
Defendant-Appellant, Management,
Bureau of Land
Defendant-Appellant, Eagle Mountain, Inc.;
Kaiser Mine Corporation,
Reclamation
Defendants. Charpied; Charpied;
Donna Laurence Society;
Desert Protection Center for
Community Action and Environmen Justice, Plaintiffs-Appellants,
tal
v. Department Interior;
United States Eagle Inc.; Mountain Mine Corporation;
Reclamation Bureau of Management;
Land National Park
Service; Babbitt, Bruce in his official
capacity Secretary Interior; as Fry, capacity
Tom in his official as
Acting Director the Bureau Management; Wright,
Land Al in his capacity Acting
official California
State Director of the Bureau of Land
Management; Salt, Tim in his official
capacity Manage as Bureau of Land
ment California Desert District Man
ager; Stanton, Robert in his official
capacity as Director of the National Service,
Park Defendants-Appellees. 05-56814, 05-56815, 05-56843,
Nos.
05-56832, 05-56908.
United States of Appeals, Court
Ninth Circuit.
Argued 6, and Submitted Dec. 2007.
Filed Nov. 2009. May
Amended 2010. *3 PREGERSON,
Before: HARRY STEPHEN S. TROTT and RICHARD A. PAEZ, Judges. Circuit Opinion by Judge PREGERSON; Dissent Judge TROTT.
ORDER opinion filed on November is amended as follows: Slip opinion page *4 735, 15123 [586 F.3d 747-48], 7, first paragraph, line por- delete tion of paragraph beginning “Further- more” concluding at the end of the paragraph with “Id.” Insert footnote at 7, line at the conclusion of the revised paragraph. The footnote shall read: DOI’s current NEPA guidelines take the exact opposite approach to that of the Corps regulations in Angoon. DOI’s NEPA explains handbook “pur- pose and need statement for an exter- nally generated action must describe the need, purpose BLM not an appli- cant’s or external proponent’s purpose Feldman, Leonard J. Heller Ehrman Department Interior, and need.” Bu- LLP, Seattle, WA, defendant-appel- reau of Management, Land National En- Mountain, Eagle lants Kaiser LLC and Policy 35, vironmental Act Handbook Reclamation, Mine LLC. 1502.13) (citing § 40 C.F.R. (emphasis Rountree, Tamara N. United States De- added), available at http://www.blm.gov/ partment Justice, Environment and pgdata/etc/medialib/blm/wo/Information_ Division, Natural Resources Washington, Resources JManagemenVpolicy/blm_ D.C., for government federal defendant- handbook.Par.24487.File.dat/hl790-l- appellants. 1502.13) 2008-l.pdf (citing § 40 C.F.R. Long, Deborah Sivas and Noah Stanford added). (emphasis applicant’s pur- “The Clinic, Stanford, CA, Environmental Law pose may provide and need useful back- for plaintiff-appellee National Parks Con- information, ground description but this servation Association. must not be confused with the BLM Yolker, Stephan C. Law Offices of Ste- purpose and need for action.... It is Volker, phan Oakland, CA, C. for plain- purpose and need for action tiffs-appellees Donna and Laurence Char- range will dictate the of alterna- pied. tives ....” Id.
Slip opinion at page F.3d at [586 748], line delete the beginning sentence not____” “That the BLM does Replace may with “Kaiser desire to find a viable by-products use for mine located on its The mine also included 429-acre holdings, but the BLM has no area private land “Townsite,” mine which housed workers need do so.” support personnel, over which the Slip [586 F.3d at opinion page a reversionary United States owns inter- 748], final sentence footnote delete the currently Though est. Kaiser leases the 9. facility, Townsite for use as correctional All amicus are pending motions of the mine site lies majority dormant. All re- petitions panel GRANTED. lands, large which contain disturbed hearing rehearing en banc remain have quantities tailings, of mine not been pending. reclaimed. parcels OPINION The BLM owns several of land former mine surrounding the site. PREGERSON, Judge: Circuit acquire sought par- Kaiser these (“Kaiser”) Mountain, Eagle Inc. exchange. a land through cels Under on a seeks to a landfill former Kaiser build Kaiser’s Kaiser will proposal, acquire mining near Joshua Tree National site 3,481 land, acres United (“Joshua Tree”). Park As of its land- reversionary States’s interest *5 Kaiser development plan, sought fill Townsite, permanent rights-of-way private certain lands for several exchange Eagle over the Mountain dormant Rail- parcels surrounding site of land the mine road and Eagle Mountain Road. In ex- Bureau of owned Land Man- 2,846 change, pri- Kaiser offered acres of (“BLM”). agement Several in- parties, vate land near other BLM lands and cluding Parks the National Conservation designated within an as area critical habi- (“Conservation Association”) Association tat for the desert tortoise. (“the Charpied Donna and Laurence goal Kaiser’s is to develop ultimate Charpieds”), challenged the exchange. land largest landfill the United States. The Nevertheless, approved the BLM the land 4,654 proposed will project landfill cover exchange, as did the Interior Board of acres, including support “buffer” ar- Board”). (“Appeals Land Appeals accept eas. The landfill will wastes solid The Conservation Association and the from several Southern California commu- Charpieds pursued challenges in district majority nities. of the The waste will be grounds, court on including several viola- train, transported by though there will also tions of Land and Policy the Federal Man- some truck and “self-haul” The loads. Act”) agement (“Management Act and Na- project operate is designed to for 117 tional Policy Environmental Act years. proposed peak, At its (“NEPA”). The court district held for the 20,000 accept garbage day, tons of per Conservation Association and Charpieds week, days up six hours sixteen some, on Management Act claims and day. per During phase the final of the all, but of the NEPA claims. We have project, roughly seventy- to commence jurisdiction § under 28 U.S.C. 1291 and eight years, garbage deposited will be into affirm part part. and reverse largest open mining pits, of the four remaining pits the East Pit. The will not Background I. capacity be filled. pro- The total operated Kaiser owned an iron ore posed approximately landfill is 708 million Eagle mine range near the Mountain tons. County, Riverside California from 1948 to 5,000 1983. covered Both The mine area Joshua Tree and the mine over large open large acres and included four site lie within a desert pits. wilderness plant area that is home to several sensitive therefore valued public parcels sur- rounding the mine species, including roughly and animal site at per desert $77 acre and the Townsite at roughly per sheep. and Bighorn proposed $106 tortoise The acre.1 appraisal The valued the Kaiser within landfill site sits one and-a-half miles exchanged lands to be at approximately of Joshua Tree. The landfill would be visi- per acre. The BLM subsequently $104 ble from remote areas of Joshua Tree. required $20,100, Kaiser to pay the differ- analysis As of its ence between the value of exchanged exchange, produced land the BLM a Draft parcels. lands and Kaiser’s (“EIS”). Impact Environmental Statement adopted EIS, a Final purpose EIS described the and need incorporating EIS, the Draft and issued a project as follows: Record Decision approving the land ex- primary purpose Project is to change proposed by Kaiser. The Con- develop a III new Class nonhazardous servation Association and Charpieds filed municipal solid waste landfill to meet the protests administrative with the BLM. projected long-term demand for environ- When protests denied, those were the Con- mentally capacity sound landfill in servation Association Charpieds sepa- California; provide Southern a long- rately appealed to Appeals Board. term income source from the develop- The Appeals Board affirmed the BLM’s ment of a nonhazardous municipal solid decision in separate decision, incorporat- landfill; waste an economically find via- EIS, ing the Draft and Final in September ble use for the existing mining by-prod- 1999. Eagle
ucts at the Kaiser Mountain Mine The Conservation Association and the *6 site, including use of existing aggregate Charpieds (hereinafter, collectively “Con- overburden; and provide long-term Association”) servation separate filed com- development land use and goals and plaints in the district court seeking review guidance for the Townsite. under the Administrative Procedure Act and alleging violations of Management mind, purposes With these the BLM Act and NEPA. The district court consoli- (1) considered six alternatives detail: dated the complaints. On cross-motions (2) action; waste; No Reduced volume of summary judgment, for the district court (3) (4) access; Alternate road Rail access ruled the Conservation Association’s fa- (5) only; Landfill on Kaiser only; land vor, in part. Looking only to the Record (6) development Landfill without Townsite Decision, the district court set aside the development. (1) exchange land because: the BLM did The BLM also commissioned an apprais- not “full give consideration” to whether the report al on proposed exchange lands (2) land exchange public interest; is in the (“the Yerke, from David J. Inc. Yerke the Yerke appraisal failed to consider a appraisal”). The appraisal Yerke found (3) use”; landfill as a “highest and best “highest that and best use” of the “purpose EIS’s and need” statement was public question lands “holding was for drawn, too narrowly with accordingly nar- speculative appraisal investment.” The potential row alternatives foreordaining explicitly stated that it did “not take into development; landfill the any aspects consideration of the failed to take a “hard look” at potential project.” appraisal The Yerke impacts Bighorn sheep and the effects Angeles County 1. The Los purchase Sanitation District property ment to the landfill $8,800 agree- has since permits entered into a conditional per for over acre. by Departmental offi- rendered nutrient- decisions on the enrichment nitrogen disposi- to ... use relating [t]he fol- cials appeal This desert environment. poor ” lands.... 43 C.F.R. tion of lowed. 4.1(b)(3)®. “A of the Board § decision Review II. Standard action and be agency constitute final shall issuance, date of unless upon the effective summary grant or denial We review provides otherwise.” 43 the decision itself Ad Envtl. judgment de novo. Northwest Serv., § 4.403.2 C.F.R. Marine Fisheries vocates v. Nat’l Cir.2006). (9th We 460 F.3d us, Record of In the case before agency action may only overturn effective, and can became Decision never of discre “arbitrary, an abuse capricious, agency’s final action. not serve as tion, in accordance with otherwise not or Procedure language of the Administrative v. Han Basin Mine Watch law.” Great As support Act the Conservation does (9th Cir.2006); kins, 456 F.3d 961-62 “[A]gency action arguments. sociation’s 706(2)(A). § 5 U.S.C. ... or not final is final whether otherwise or determined presented there has been Scope III. of Review any for ... form of recon application an matter, must first we preliminary As a sideration, or, otherwise agency unless the under our re- identify agency action requires by provides rule and ar- Association view. Conservation ap an inoperative, meanwhile is action held, that the as the district court gues, authority.” superior agency peal agency constitutes final Record of Decision § Associa 704. The Conservation U.S.C. disagree. action. We that no rule renders tion contends during the inoperative of Decision Record Procedure Administrative Under therefore the appeal, of the pendency Act, subject to only agency “final action” is final action. This Record of Decision is a § 704. The judicial review. 5 U.S.C. held, however, that court has “exercise Department BLM is Department ALJ optional appeal to a (“DOI”). regulations DOI state Interior the initial Administrator’s decision renders that, stay, a deci- barring petition *7 judicial review purposes nonfinal for upon expira- effective sion will become Bellevue v. under the APA.” Acura period. 43 C.F.R. appeal tion of the Cir.1996). (9th Reich, 1403, 90 F.3d 1407 4.21(a)(2). fails to Appeals § If an Board Furthermore, Associa Conservation upon stay a for a or denies petition act the “otherwise fi argument ignores tion’s becomes effec- petition, such a decision Proce language nal” of the Administrative 4.21(a)(3). § immediately. 43 C.F.R. tive explicitly Act. DOI rules need not decisions, contrast, dure Appeals Board’s inoperative of Decision render the Record agency final action when made. constitute us, because, that before in a case such as fi- Appeals] Land decides “The Board [of in the first was never effective ap- decision nally Department Interior] [of instance.3 Department from peals to the head of the holding Contrary suggestion, argues 3. to Kaiser's our that 43
2. The Conservation Association 4.21(c). § compelled 43 C.F.R. is not applies only Appeals § Board C.F.R. 4.403 4.21(c) § states: actions, nothing the Record and does to rob finality. logical Taken to its of Decision of its which at the time of its rendi- No decision conclusion, argument subject appeal would allow for to the Director or this tion is conflicting, final independent, potentially Appeals an Board shall be considered two agency subject judicial action agency so as to actions. This cannot be. "final”
1065
cases,
that in
We note
some
a Rec
A. Highest and Best Use
may
agency
ord of Decision
constitute final
1. Exhaustion Administrative Rem-
example,
action. For
where there is no
edies
appeal,
administrative
a Record of Deci
court,
In district
the Conservation Asso-
sion will become effective and final follow ciation challenged the BLM’s appraisal of
ing
expiration
appeal period,
the exchange
ground
lands on the
that the
4.21(a)(2).
§
accordance with 43 C.F.R.
BLM failed to consider a landfill as the
Similarly,
Appeals
where the
Board denies
“highest and
best use” of the
par-
petition
stay,
a Record of Decision cels. Kaiser and the
argue,
as they
court,
will become effective and final in accor
did before the district
that the Con-
servation
4.21(a)(3).
Association failed to
§
exhaust
Indeed,
dance with 43
C.F.R.
issue
Board,
before the Appeals
and that
this was the situation in Desert Citizens
this court should not review the highest
Bisson,
Against Pollution v.
only raise issue “with sufficient clarity to allow the decision maker to understand Policy Manage- IV. Federal Land and raised, and rule on the issue but there ment Act Claims no bright-line standard as to when this Kaiser and the BLM appeal the district requirement has been met.” Great Basin ap- Hankins, court’s determinations that the Yerke Mine Watch v. F.3d *8 (internal omitted). quotation praisal inadequate was and that the BLM “full give failed to consideration” to wheth- us, In the case before we are satisfied exchange er the land well public serves the Appeals that the received Board sufficient interest. notice to agency respond allow the to to
with exhaustion of administrative (Emphasis pealed review under 5 U.S.C. timely petition has filed and for a added). been made stay [2] This the decision effective .... decision has been subsection deals unless being ap- remedies, [1] a petition non-final, agency Kaiser all actions not finality action, suggests, and thus unreviewable. stay of § subject agency 4.21(c)’s to touch timely to a action. requirement filed would render upon finality petition If taken, that a stay as highest and Although cient notice address the highest and best use issue. the did not use best use issue. the Association Conservation use,” its “highest and best the words Best Highest 2. Merits the and Use to the appeal of Reasons for
Statement
Claim
Board
Appeals
stated:
BLM WILL
RECEIVE
THE
NOT
statutory
regulatory require-
The
and
THE
FOR
FAIR
VALUE
governing appraisals are numerous.
MARKET
ments
Any disposal of federal
EXCHANGE.
Management Act
the BLM to
requires
The
“fair mar-
compensated
must be
lands
a land
appraise
agreeing
lands before
lands and
public
1716(d)(1).
ket value
use of
§
This
exchange. 43 U.S.C.
43 U.S.C.A.
their
resources.”
opinion regard-
must set forth an
appraisal
1701(a)....
pay
§
will also
ing
“sup-
the market value of the lands
$20,100,
lump
a
sum of
which is below
presentation
analysis
the
and
ported
the
market
Kaiser antici-
value.
market
43 C.F.R.
relevant
information.”
fair
huge profits
opera-
pates
2200.0-5(c).
§
Market value “means
tion on the undervalued BLM land....
in-
probable price ...
that lands or
most
in a
bring
competi-
terests
lands should
added).
separate
In their
(emphasis
buyer
market
...
open
tive and
where
Reasons,
Charpieds
ar-
Statement
acts
and knowl-
prudently
and seller each
fair
that “the
receive
gued
should
2200.0-5(n). “In
edgeably.”
§
43 C.F.R.
lands,”
ap-
for its
an
appraisal
“[n]ot
value,
estimating
appraiser
market
praisal
artificially
that has been
reduced
(1) Determine
and best
highest
shall:
through
value
instructions to discount de-
property
appraised”;
use of the
to be
velopments,
improvements,
and recent
“(2) Estimate the
the lands and
value of
changes.”
zoning
if in private ownership
interests as
raised the
adequately
These statements
available for sale
market.” 43
open
highest
Ap-
and best
before the
use issue
2(a)(1)—(2).
§
“Highest
C.F.R.
2201.3—
explic-
Board.4 The
peals
appraisal
Yerke
probable legal
best use means
most
any
it
itly states that
not consider
does
property,
of a
market evi-
use
based on
aspect of the landfill
The Conser-
project.
valuation,
as of the
ex-
dence
date of
Association’s
vation
Statement of Reasons
pressed
appraiser’s supported opin-
an
highlighted
appraise
BLM’s failure
2200.0~5(k).
§
ion.” 43 C.F.R.
the land’s fair
market value as
landfill.
highest
analysis
appraisal
comply,
best use
must also
to the
integral part
appraisal process.
appropriate,
43 extent
re-
separate
with the
2201.3-2(a)(l)
(“In
§
estimating
quirements
Appraisal
C.F.R.
Uniform
Stan-
value, the
market
shall:
De-
for Federal
appraiser
Acquisitions.
dards
Land
highest
§
Ap-
termine
and best use of the C.F.R.
2201.3.
Under
Uniform
appraised[.]”).
definition,
to be
such
property
praisal
highest
Under
Standards
“
backdrop,
had
Appeals
highest
profit-
‘[t]he
Board
suffi- best use is
and most
"apprais-
meaningful
language
4. The dissent finds
this lan-
such
no
distinction between
land to
ers failed
consider that the Federal
guage
presented
before
and that
in the case
*9
exchanged
proposed
is
a
be
landfill,
to be used as
us,
highlights
reap
which
that Kaiser will
that,
result,
a
the land should
as
profits
operation,”
pay
"from landfill
comparison
valued ...
sites”
be
to landfill
value,”
"below the fair market
and that the
satisfactory
highest
to exhaust the
and best
unfairly ignored
appraisal
development and
(quoting
Dissent
Donna
use issue.
at 1096
zoning changes.
45,
(1996)).
Charpied,
We
137 IBLA
47
see
adapta-
may
reasonably expected
such needs as
property
use for which the
able
likely
be needed in
develop
ble and needed or
the near future.” Id. at 1181
”
(internal
reasonably
Ap-
omitted).
near future.’
quotations
the
and citations
Institute,
Appraisal Stan-
praisal
Uniform
observed that
We
because the lands in
Acquisitions
for Federal Land
dards
question
expected
“were
to be used for
States,
v.
292 U.S.
(quoting Olson United
purposes”
and because the “exis-
246, 255,
1069 Council, 837, 843, 467 104 best use claim U.S. S.Ct. highest ment on Def. (1984). Act. 694 Management 81 L.Ed.2d We review under the the entire record to determine whether the Determination B. The Public Interest agency’s decision was based on a reason- Policy Land the Federal Under able consideration of the relevant factors. Act, BLM must deter Management Babbitt, Hjelvik v. 198 F.3d 1074 interest will be well public that “the mine (9th Cir.1999). exchange approv before by a land served” analysis was The district court’s con- exchange. 43 U.S.C. ing such an by only strained its decision to review 1716(a); § 2200.0- § see also C.F.R. Having Record of Decision. that the held 6(b). give “shall full This determination decision, Appeals incorpo- Board’s which Federal land man consideration to better EIS, is the final action agency rates and the needs of State and local agement review, under we examine a broader set of including needs for lands for the people, than did materials the district court. The community expansion, recreation economy, 1,600 pages Final EIS alone includes over ... and wildlife ....” 43 areas and fish of material not considered the district 1716(a). § A determination that an U.S.C. court, including detailed environmental exchange public well-serves interest analyses. Though we not necessarily do finding on a that: predicated must be agree public with the BLM’s interest de- public The resource values and the termination, the record as a whole estab- objectives that the Federal lands or in- interpretation the BLM’s lishes conveyed may serve if re- terests to be consideration,” “full as evinced ownership are not tained Federal EIS, analyses in permissible the resource values of the under more than 1716(a).7 § Accordingly, non-Federal lands or interests and the 43 U.S.C. we re- if public objectives they could serve ac- verse the district court’s determination on (2) The quired^6] and intended use of this issue. not, conveyed Federal lands Policy National Environmental Act Y. determination of the authorized offi- Claims
cer, conflict with estab- significantly objectives adja- management lished Policy The National Environmental Act lands and Indian trust cent Federal requires agencies federal prepare finding supporting lands. and the Such Impact Environmental Statement discuss- rationale shall be made of the ad- ing, among things, other the environmental ministrative record. action, proposed any impact of adverse 2200.0-6(b). § 43 C.F.R. environmental which cannot be effects avoided, proposed to the and alternatives Management Act does not define 4332(2)(C). § In action. U.S.C. addi- the term “full consideration.” Our review tion, implementing regulations require that question is thus limited whether the agency underlying purpose state the interpretation BLM’s of the term is based and need for the action. 40 permissible on a construction of the stat- U.S.A., § ute. Chevron Inc. v. Nat’l Res. C.F.R. 1502.13. Kaiser and the BLM words, Management public analyses, Act interest al- 6. In other the BLM must find that the being land con- resource values of the "purpose separate beit in the context of veyed outweigh do not the resource values of need" issue under the National Environmen- acquired. private being land Policy tal Act. Dissent at 1079-84. conclusion, agreeing the dissent 7. with this examples quotes of these sufficient several *12 including existing aggregate of and holding that the use the district court’s
appeal
overburden;
purpose
to
land
respect
provide long-term
deficient with
and
EIS was
alternatives,
need,
impacts
development goals
guidance
reasonable
use and
sheep,
eutrophication.8
Bighorn
for the Townsite.
contends,
Association
Conservation
Need and Reasonable
Purpose
A.
that
dispute,
and the
does not
the
Alternatives
majority
purposes
of these
and needs re-
enjoy “considerable dis
Agencies
goals,
to Kaiser’s
not those of the
spond
purpose
the
and need of
cretion” to define
agen-
have
BLM. Other circuits
held
Future
project.
a
Friends
Southeast’s
of
acknowledge private goals. Col-
cies must
(9th
Morrison,
1059, 1066
153 F.3d
Cir.
v.
Dombeck,
v.
185
orado Envtl. Coalition
1998). However,
agency
“an
cannot define
(10th Cir.1999)
1162,
(“Agencies
1175
F.3d
objectives
unreasonably
narrow
its
completely ignor-
...
precluded
are
from
City
CarmeP-By-The-Sea v.
terms.”
of
objectives.”);
ing
private applicant’s
a
Transp.,
Dep’t.
123 F.3d
United States
(“[T]he agency
Burlington,
only; development Landfill without All of development. op- Townsite these *14 NEPA, an Under EIS must contain tions, alternative, save the No Action “reasonably thorough” discussion of an development would result landfill consequences. action’s environmental require portion some sort and would some Block, State v. 690 F.2d of California exchange of the to occur. land (9th Cir.1982). An “provide 761 EIS must proposed The BLM several alternatives significant full and fair discussion of envi responsive that would have been to the § impacts.” ronmental 40 C.F.R. 1502.1. demand, long-term need to meet landfill review is Our limited whether an EIS as a property, such landfill on other Kaiser took a “hard look” at the environmental diversion, locations, landfill waste offsite impacts proposed of a action. Id. We must mining, alternative landfill Townsite loca- a “pragmatic judgment make whether the tions, and alternative Townsite uses. The form, content preparation EIS’s foster not, however, op- BLM did consider these decision-making both informed and in any tions in detail because each of these Block, narrowly public participation.” alternatives failed to meet formed objectives, project required drawn which F.2d at 761. that private Kaiser’s needs be met. Contrary to the district court’s conclu- holdings Our Friends Carmel- sion, we that find the EIS contains exten- By-The-Sea forbid the BLM to define its analyses potential impacts Big- sive on objectives unreasonably narrow terms. sheep, including migration patterns, horn may The BLM not circumvent this pro loss, accessibility. habitat and water The scription adopting private interests to court cited particular district two deficien- purpose draft narrow and need state respect Bighorn sheep. cies with The ment that excludes alternatives that fail to district court that found the EIS did not specific private objectives, yet meet that potential impact address the of tortoise- process
was the result of the here. The proof fencing sheep migration on patterns adopted BLM Kaiser’s interests as its own specify proposed and failed to what a craft a purpose and need statement so narrowly drawn as to foreordain approval “buffer zone” would entail. pose gave public and need for action will that dictate the the BLM full consideration to factors, however, range bearing interest of alternatives....” Id. has no on sufficiency of the EIS under NEPA. The
10. The unrelated dissent conflates two issues: long dissent concludes that so BLM (1) adequacy purpose of the and need state- properly project concluded that the is interest, adequacy ment under NEPA and public there is no NEPA violation— is, under the justify interest determination Man- that that the ends the means. We agement disagree. Act. Dissent at 1082-83. Whether does, however, argues that contain the in- tion. The the relevant The EIS other, present court believed was is the district discussion scattered formation 56-page does, includes a missing.11 The EIS sections of the The EIS EIS. sheep. report report Bighorn example, “Biological discuss Resources” study, monitoring an extensive based on Quality.” “Biological “Air Re- telemetry, sheep capture, radio utilizing mitigation sources” section discusses The EIS genetic testing methods. measures, daily such as cover of the work- any tortoise-proof states installed landfill, ing face of that will reduce designed sheep will be to allow for fencing availability.” “increased food The same explains The EIS movement.12 “Biological Resources” section references a po- acres of constituting zone “644 buffer section, Quality” “Air which cal- separate as natural tential habitat would remain potential produc- culates levels of nitrate open space periphery around tion, support the conclusion that atmo- pro- landfill. This habitat would deposition nitrate spheric resulting zone between the landfill vide a buffer operations be dwarfed other sheep popula- and relocated operation Angeles sources the Los Basin. The EIS “exactly Though the EIS does not tion.” deposition therefore concludes that nitrate entails, it what the buffer zone specify” from landfill sources will have no effect on “reasonably dis- complete” contain a does ecosystem. Joshua Tree’s *15 mitigation of this measure. See cussion determining whether an EIS fosters v. Highlands Alliance Okanogan decision-making public par- informed and (9th Cir.2000) Williams, 468, 236 F.3d 473 content, ticipation, only we consider not its include a “rea- (holding that EIS must Block, form. at but also its 690 F.2d 761. sonably complete possible discussion Here, eutrophication the discussion of is measures.”). not au- mitigation We are respect neither full nor fair with to atmo- judgment our thorized substitute A spheric eutrophication. seeking reader Block, at 761. agency. that of the 690 F.2d enlightenment on the issue have to would Having concluded that the BLM did take a entirely cull unrelated through sections Bighorn sheep, “hard at our review look” put pieces together. the EIS and then at an end. Id. reverse the district is We atmospheric To find the brief discussion of court on this issue. eutrophication, begin a reader must in the Eutrophication C. section, “Biological Resources” which then Quality” from “Air refers to data sec- apply analysis the same to the
We tion, only with respect and then to effects court’s conclusion that the EIS district Tree, surrounding on Joshua not the area. insufficiently potential addressed the eutrophication up Rather than address of nutrients eutrophication, or introduction front, attempts the BLM instead to cobble into the desert environment. Unlike its together a “hard look” various Bighorn sheep, con other discussion EIS specific eutrophica- analyses quality varied as air and dis- tains no discussion of County Specific incorporated the earlier 13. The Riverside Plan clari- 11. The Final EIS Draft EIS. provide 644 acre area will fies that sheep footprint buffer between and indicates that 12. Other evidence record landfill. type high; fencing eighteen inches high enough but to restrict tortoise movement enough present Bighorn low no obstacle to sheep. 1074 analy- patchwork agency, help prepare vector control. This can- environmental
ease
ses,
“reasonably
including portions of the
Id. In
thorough”
not serve as a
dis-
EIS.
October 1996 the Park Service recom-
eutrophication
issue.14 We
cussion of
reject
mended that
the BLM
the Kaiser
therefore affirm the district court’s deci-
proposal and stated that the Draft
did
on this NEPA claim.
EIS
sion
sufficiently
address certain environ-
Cross-Appeal
VI.
impacts.
mental
In December 1996 the
Charpieds cross-appeal
changed
position,
sup-
The
the Park Service
its
they
ported
proposal.
district court’s determination that
and Kaiser
EIS
standing
pursue
lacked
their claim
(1)
Standing requires three elements:
(“Park
against the National Park Service
(2)
fact;
injury
actual or imminent
Service”)
NEPA,
under
the National Park
injury
causal connection between the
Act,
1,§
Organic
Service
16 U.S.C.
of;
complained
the conduct
likeli-
Act,
the California Desert Protection
16 hood that a favorable decision will redress
410aaa,
§
seq.
Charpieds
U.S.C.
et
The
injury. Lujan
v.
Wild-
Defenders of
appeal
grant
also
the district court’s
555, 561-62,
life, 504
112
U.S.
S.Ct.
summary judgment
to Kaiser
(1992).
Charpieds
L.Ed.2d 351
concerning
BLM on NEPA claims
argue that the Park Service’s reversal con-
sufficiency regarding
EIS’s
desert tortois
procedural
stituted a
violation under
es, visual, noise,
im
night
lighting
NEPA,
the California Desert Protection
pacts, groundwater,
quality.
and air
We Act, and the National Park
Organ-
Service
affirm the district court on all issues on
Act,
ic
and that relaxed standards of re-
cross-appeal.
dressability
apply.
Lujan,
should
See
Although
required
the BLM was
to soli-
U.S.
572 n.
112 S.Ct.
2130.
Char-
EIS,
input
however,
cit the Park Service’s
pieds,
on the
any
have not
identified
*16
1503.1,
§
C.F.R.
the BLM did not need the
procedural duty by
violation of a
Park
Park
approval
complete
Service’s
the Service.15 The relaxed standard therefore
exchange.
land
The Park
in-
apply.
Service was
does not
A favorable decision
proposal only
volved in the Kaiser
as a would not
injury complained
redress the
cooperating agency.
regulations
NEPA
because the Park Service is not the lead
distinguish
agencies
lead
from cooperating
agency responsible for approving the Kai-
agencies.
§
Cooperating
C.F.R.
1501.6.
project.
ser
Even if the Park Service
must,
agencies
at
request
of the lead
approval
were to rescind its
the landfill
court,
14. The
eutrophica-
reviewing
dissent’s contention that
examining
sent or a
an EIS
tion
a
is “not
serious issue”
post-hoc
is
odds with
with the benefit of law
and
clerks
counsel,
analysis
of both the National
rationalizations
Park Service
is able to fol-
map
and
low a tortuous
to the buried
the IBLA. The National Park
treasure of
Service
eutrophication
ques-
a
eutrophication
discussion is not the
sufficiently
found the
issue
ser-
EIS,
examining
comment,
tion.
In
an
we must make a
ious as to merit an official
as the
form,
“pragmatic judgment whether the EIS’s
points
dissent itself
out. Dissent at 1087-88.
preparation
content
foster both informed
position
The IBLA did not take the
that eutro-
decision-making
public partic-
and informed
phication
unimportant,
but
instead con-
Block,
ipation.”
(emphasis
Lastly, briefly we address claims. As investing NEPA out million pieds’ impact-specific dropped after $45 above, is limited to our review discussed nothing with to show for it in project look” at the the EIS took “hard whether my colleagues I inso- agree return. with impact. potential environmental landfill’s they cross-appeal with the dispense far as Block, challenging F.2d at 761. bighorn sheep public and the interest tortoises, visual, of desert EIS’s discussion issues, respect I dissent with to the but noise, lighting impacts, ground- night irony my colleagues final is that rest. The water, quality, Charpieds take and air to the Bureau of Land send the case back ulti- methodology and issue with the EIS’s (“BLM”) something to do Management taking posi- conclusions. Without mate already con- adequately BLM has done: conclusions, we find tion on those sider the value of the land involved as a of these issues is suffi- EIS’s discussion commercial landfill. decision-making foster informed cient to af- participation. We therefore I summary grant firm the district court’s claims, as well BACKGROUND on these NEPA judgment Charpieds’ complaint as its dismissal formally be- Kaiser’s Park against the Service. years ago it filed gan 1989—20 —when for a land ex- application with BLM VII. Conclusion the construction of change to facilitate of the district court is judgment Mountain Landfill. Eagle what it called the and REVERSED AFFIRMED operated had From 1948 to REMANDED for fur- This case is part. 5,000 ore mine on isolated acres of an iron opin- with this proceedings ther consistent Riverside, it land owned or controlled *17 costs on Each side shall bear its own ion. 1989, sought In to ac- California. appeal. part exchange of an quire federal lands as Eagle facilitate the Mountain that would TROTT, Judge, Senior Circuit The landfill would have been the project. dissenting: with new Environmental comply first to want to at- person sane would What guidelines. The federal Agency Protection property for a landfill? tempt acquire sought mostly encircled the land Kaiser well-meaning environmental laws have Our target- spent Sixty percent mines. unintentionally such an endeavor a made mountain- land is classified as ed federal yet another fool’s errand. This case 2,846 in turn offered acres ous. Kaiser impossi- daunting of how example —if become mostly flat desert land to Ulysses can an adventure be. ble—such Area the California Desert Conservation encountered fearsome obsta- thought he the border of located about 1.5 miles from to Ithaca on the as he headed home cles (“JTNP”), Park Tree Natural Joshua to the nothing compares but Argo, nearest visi- twenty park’s miles from of unchecked environmental process” “due 1076
tor center. The landfill would on the floor of the structure. Workers non-hazardous, accept municipal, solid through sort the waste and remove un- waste from seven Southern California acceptable materials such as hazardous counties, mostly by to be delivered train. waste, radioactive, sewage sludge, bio- waste, logical or infectious and other 1994, Superior the State Court San needing materials special handling. Re- Diego County further this pro- described cyclable may materials be recovered. ject as follows: The remaining wastes are compacted mining operation “[Kaiser’s] resulted packaged into containers that hold the excavation of three large open pits; up to 25 tons each and then loaded onto one to two long. each[ ] miles The min- cars, rail each of which holds contain- ing 1983, operation ceased in and Kaiser ers. containers are then transport- has prospec- leased the mine site to the operator tive ed to the landfill. Approximately [ ] of the landfill. percent of the wastes will transported Corp.] “[Kaiser/Mine Reclamation by truck rather than rail.” plans open to utilize the pits left from mining operation to create what all Nat’l Parks & Conservation Ass’n v. parties agreed have largest is the land- Riverside, County 42 Cal.App.4th fill country. footprint The landfill (1996). 50 Cal.Rptr.2d encompass 2,262 approximately I injustice do an to the record at- larger project acres within a area of tempting to summarize the legal hurdles 4,654 acres. The landfill will have the negotiated Kaiser has in its thus-far vain capacity 20,000 accept up per tons attempt accomplish goals its a cost —at day of wastes for a minimum of 115 $50,000,000 now excess of here —but years. goes.1 “The landfill will receive most of the First, permits. After a lengthy pub- Angeles waste from Los and other lic hearing process, County Riverside is- Southern California Ninety counties. sued all local approvals, land use including percent of the garbage will be shipped zoning change. Then, California’s South by rail and the balance truck. All Quality Coast Air Management District waste will be delivered after processing approved permits for air emissions from (MRF’s) recovery materials facilities project. Next the United States Fish accept which delivery of trash from and Wildlife Service poten- evaluated the homes and compact businesses and impacts tial project on threatened or waste into transportation. containers for endangered species and thrice issued “no accepts “The landfill only nonhazard- jeopardy” opinion. permits ap- were ous solid waste and inert wastes that proved only after searching inquiries by have processed been through MRFs. issuing agencies. All the environmental The Draft EIR typical states a MRF *18 laws were addressed. would require about 10 to 30 acres and 100,000 Then, enclosed structure of about the matter turned into a lawsuit in square feet. garbage [] is deliv- state court. See Nat’l Parks & Conserva- by ered to the MRF truck dumped Riverside, tion Ass’n v. County 71 Cal. apologize 1. I including to the reader huge for ex- excerpt the of record will not be routine- parts tensive my opinion, of the ly record in but circulated to the rest of the Ninth Circuit in the large call, record —overlooked in measure in connection with an en banc so it is here majority’s opinion and the prove district court— that I validity my must conclu- is what Unfortunately, this case is all about. sions. (1999). response. BLM 34-page a comments Cal.Rptr.2d App.4th later, after recommen- many of the NPS’s accepted trials Court Superior Two redone, the had been explana- detailed provided the Draft dations EIS/EIR ruled that Riv- Appeal Court California accept. it declined to tions for those adequately BLM had County and erside was is- Draft itself When EIS/EIR un- concerns all environmental addressed sued, a third round the NPS submitted the second This was law. California der comments, than even more detailed many re- dispute. in this appeal state re- Again, painstakingly BLM the last. are laws environmental spects, California’s and ad- NPS’s comments viewed the federal coun- demanding than their more each of them. dressed terparts. being pre- new was As the EIS/EIR engaged Moreover, actively had again raised the issue of pared, the NPS (“NPS”) in an National Park Service and un- potential unknown project’s Josh- designed protect to process ongoing impacts, as it had 1992. predictable Park. As described ua Tree National concern, MRC [Kaiser] To address Appeals Land Board of the Interior an idea that the NPS itself had revived (“IBLA”), “gives reached agreement of the first during preparation they requested as what had precisely NPS entering into an long-term namely, comprehensive, early as 1992—a EIS/EIR — which mitigation program, a monitoring long- that would establish agreement and is project runs for the life monitoring pro- mitigation and term and to ad- tailored to detect specifically months, the next 18 MRC gram. Over on JTNP.” any impacts unforeseen dress dis- engaged and the NPS extensive the Na- the IBLA described This is how detailed, develop a enforce- cussions involvement: tional Park Service’s end, In the MRC and agreement. able made [in 1995] the decision was When binding agreement into a NPS entered EIS/EIR, BLM in- new prepare they had precisely what gives NPS “coop- participate as vited the NPS compre- early as 1992—a requested agency” preparation in the erating hensive, monitoring and miti- long-term role that would document—a the new runs for the life gation program, which expertise eval- recognize special NPS’ specifically tailored project and is newly designated impacts on the uating any unforeseen and address to detect JTNP. made While the NPS impacts on JTNP. submit- scoping stage, At the the NPS any prefer it to avoid it clear that would outlining issues that 12-page letter ted site, mine industrial-type activity at the it wanted to see addressed EIS/ if agreed that agency of the consul- EIR. the assistance With forward, go agree- project were EIS/EIR, BLM re- tant preparing appropri- provided ment with MRC one, one held viewed these issues addressing NPS’s safeguards ate staff, meetings with the NPS series long-term any gradual, about concerns many of the NPS’s incorporated (which accurately pre- cannot be impacts into the Draft recommendations EIS/ dicted). was EIR. the Draft Before EIS/EIR issued, provided an “administra- omitted). (quotation to NPS tive draft” of the document *19 Furthermore, Advisory Pan- a Technical review, more provided and the NPS scientists and en- of eminent composed el Again, pages of comments. than 150 major Universities California gineers point by point NPS’s responded project Sisyphean was in at the and hill which cannot be in called to look climbed concluded: years a lifetime—ten after the IBLA’s essentially opinion. done designers many people have How who
“[T]he possible humanly all that is to make this project started this still employed by are protective a safe landfill that of Kaiser, service, are still in or public ... underlying surrounding the and en- matter, Yet, pro- are still alive? the vironment. the site Given favorable developed cess has an eternal life of its conditions, sophisticated waste contain- full-employment own as for all swept along systems, ment elaborate monitoring by with or it. systems, Eagle the Mountain Now, only in an opinion is not not become could well one the Landfill record, supported by but irreconcilable a world’s and model landfills safest it, with process endless continues. No others to emulate. doubt we will again, see this case back added). (emphasis now, years from proponents unless the County similarly officials noted that Kai- this project including seven California — mitigation” ser had “overdone its and had weary it and throw in counties— “bent in addressing over backwards all of towel, by thwarted and defeated not sub- impacts brought up which have been stance, by but process. interminable commissions, by previous by courts, by staff, our particular this commis- II sion.” Impact The final Environmental State- AND PURPOSE NEED/PUBLIC ment prepared project for this consists of INTEREST/CONSIDERATION (1) (“DEIS”), a 900-page Draft EIS which OF ALTERNATIVES details the potential impacts environmental A. project, range alternatives considered, that were and proposed miti- Purpose Need gation, 1600-page Final EIS My colleagues’ opinion concluding that (“FEIS”), produced following extensive Purpose BLM’s Statement of and Need for exhaustive comment on the the project is completely defective misun- required DEIS. The National Environmen- derstands the purpose requirement this (“NEPA”) Policy tal Act documents were in a setting private entity ap- where a jointly by issued the BLM and Riverside proaches government entity joint with a County 1996,13 years ago. In proposal that will both. benefit Of course IBLA issued a thirty-two page opinion af- there is a private purpose driving this firming BLM’s decisions. project. But project par- benefits both But, just we are getting started. The ties, just Kaiser. To isolate one without plaintiff same who lost state court filed factoring patently illogical. other lawsuit, years federal ago. 1999—10 To illustrate folly fallacy, of this all one years case took over five in district has to do is opinion examine IBLA’s simply court to get summary judgment! outlining the habitat benefits of this ex- It years took the court three to rule on the change to fish and wildlife and threatened and, completed motions, here we are at the endangered Here, however, species. years later, end of another five bur- is how goal BLM’s reads the Introduc- dened flawed seriously district court tion of the Draft EIS/EIR: opinion, button, hitting the reset and un- necessarily parties Project sending Purpose back to a 1.3.1 and Need
1079
medium-,
short-,
projected
and
Project is
based on
purpose
primary
The
Class III nonhazardous
needs
long-term
to
a new
needs. Future
are
develop
meet the
to
solid waste landfill
municipal
continuing and chang-
based on several
for environ-
long-term demand
projected
(1)
in population
increase
ing trends:
in
capacity
sound landfill
mentally
(California’s population
expected
is
California;
long-
provide
Southern
its current
than double from
30
more
develop-
the
source from
term income
million
million
to more than 60
municipal solid
a nonhazardous
of
ment
of Fi-
Department
2040
year
[California
landfill;
economically
an
via-
find
waste
(2)
nance, 1993]);
expanded waste di-
by-prod-
existing mining
ble use for
recycling,
reducing
and
which is
version
Eagle
Mine
Mountain
ucts at the
being disposed
of
the amount material
site,
existing aggregate
including use
landfills;
(3)
in
and
landfill closures and
overburden;
long-term
and provide
development proposals that
affect
goals and
development
land use
disposal capacity.
future
for the Townsite.
guidance
documenting
pages
then
12
recent studies
This section
takes
review-
Several
capacity
for additional landfill
analyzing
need
a “critical”
ca-
ing
ad-
California indicate
California,
Southern
shortfall
fo-
pacity
Southern
is
to meet
capacity
needed
ditional
Angeles,
Los
cusing on the counties of
San
2050)
(i.e.,
demands
long-term
Bernardino, Riverside, Orange, Santa Bar-
(i.e.1995
short-term needs
possible
Ventura,
bara,
Diego the
and San
seven
2000)
re-
of the Southern California
the proposed
within
landfill’s ser-
counties
(California
Man-
Integrated Waste
gion
high-
discussion
vice area.
detailed
[CIWMB],1992;
agement
Board
dispos-
a critical
for “additional
lights
need
Siting
CIWMB,
Countywide
Draft
capacity”
During
the service area.
al
counties
seven
Elements —for
discussion, Kaiser’s ob-
particularized
of waste
potential
sources
viewed
goals
sight.
are nowhere
pecuniary
vious
1996).
landfill—1995
EIS/EIR,
final
we discover that
required
is
capacity
also
Additional
had
capacity
the need for landfill
increased
municipalities in Southern
counties and
require-
satisfy
legal
Draft.
California to
since the
ade-
AB 939
demonstrate
ments of
notion that BLM
The result-oriented
The solid
quate
disposal capacity.
waste
“narrowly
statement of
drawn” this
has
California
capacity
southern
waste
wrong.
utterly
and need
Of
purpose
fac-
due to a number of
changes often
acknowledged
pur-
Kaiser’s
course
(1)
small,
tors, including:
the closure
BLM to do
law
so!
pose
requires
—the
regulations
new
landfills as
ineffective
proposals,
private,
For
non-federal
(2)
effect;
larg-
development
take
...
“[a]gencies
precluded
are
com-
(3)
sites;
uncertainty of
er
regional
private applicant’s objec-
pletely ignoring
expanded
permitting efforts
new and
Dombeck,
Envtl. Coal. v.
tives.” Colo.
(4)
landfills;
land use is-
litigation over
(10th Cir.1999)
(involving
F.3d
privatization
sues of landfills
existing
expansion of its
ski
Associates
Vail
These fac-
owned landfills.
publicly
River National For-
area into White
counties
that cities and
tors necessitate
est);
Burlington,
Against
see also Citizens
to ensure
long-term planning
undertake
(D.C.Cir.1991).
Busey,
Mine located
north
Desert
Acquisition
Important
4.2
California. The Federal
Wild-
lands will be
proposed
used
develop-
facilitate
life Habitat: The
land ex-
re-
private
popularly
lands and is
opportunity
change presents
(Dos Palmas)
management of
ferred to as Salt Creek
BLM to achieve better
ACEC,
only
to con-
in-
allowing
though
even
the ACEC
lands
Federal
of land that
ownership
Federal
lands. One of the
Federal
cludes the
solidate
species.
for listed
objectives
habitat
management
contains
Salt
acquire
Palmas)
BLM would
exchange,
(Dos
the land
acquire
area is to
Creek
2,846
acres of
approximately
private
management
lands for the
habitat
lands,
important
which contain
seeps
pro-
palm
various
oases
tortoise, Federally
listed
desert
for the
pupfísh and
vide habitat for the desert
the desert
and for
species,
threatened
rail,
Federally
Yuma
both
listed
clapper
endangered
Federally
listed
pupfísh,
3,200
endangered species. Over
acres
environmentally
other
species, and for
acquired
process
have been
or are
In addition to
species.
sensitive
acquired by BLM. All three of
being
the land ex-
acquired
lands
parcels
Kaiser’s
will contribute
con-
*24
acquire ap-
BLM also would
change,
lands,
enhancing
thus
solidating Federal
of desert tortoise
400 acres
proximately
management
parcel
of the area. The
in
impacts caused
mitigation of
habitat for
pupfísh
23 contains desert
habi-
Section
would be
Project. This land
by the
tributary
a
along
tat
Salt Creek.
applicant, and then
by the
purchased
Group
Orocopia
B:
Mountains Wil-
to BLM as
conveyed
fee
would be
derness
of 160 acres of
for the loss
mitigation
S.,
T.
—No resuscitation of the existing native be selected remaining from the Townsite alternatives. clearly There are no envi- ronmentally superior alternatives com-
Alternatives Considered pared to the No Action Alternative. But Eliminated However, as required by Section 1. property Landfill on other Kaiser 15126(d)(4) CEQA Guidelines, 2. that, Waste Diversion County has determined on balance in the lives of both animals and is the ment Action Alternative Proposed and, fact, naturally occurs alternative environmentally superior plants alternatives. remaining atmosphere. Nitro- among great quantity impacts of the potential Many key also a element of the fertilizer gen is or simi- Project are the same proposed pro- the food positively to increase used re- impacts of the potential lar to throughout the world. ductivity of land alternatives alternatives. Some maining course, “problem,” The environmental however, would, greater have a level anthropogenic eutrophication occurs with Project. For than the impacts animal plant alterations in or which causes Land Landfill on Kaiser example, the regarded life—or both—in a manner without the land ex- Only Alternative I that most of our na- positive. note protection change would diminish eutrophication neg- concerns involve tional would wildlife because there habitat and changes ative in bodies of water caused of sensitive habitat no consolidation anthropogenic introduction of exces- exchange. resulting from the land lands yet I have phosphorus. sive amounts of and the Reduced Vol- alternative That find a where the introduction of situation decrease Alternative would also ume ecosystem nitrates into a desert has to the Environ- the level of contribution harm. caused material environmental Fund, Trust thus di- Mitigation mental case, Charpieds fear that this is such a for ac- minishing funding available concern refuted the facts. lands. The Reduced quisition of habitat parties agree scope cannot on the Rail Access Alternative and the Volume alleged eutrophication concerns could also extend the Only Alternative consequences case as it relates to the impacts by of certain extend- duration by the deposition. nitrate As summarized landfill. These other ing the life of the court, alternatives, however, could reduce the district impacts comparison a few level of neglected Plaintiffs contend that *26 Project. Only the No Ac- the impacts on the significant to address impacts in Alternative would result tion in- eutrophication environment due to significant. to be considered not cluding presence an increased of scaven- im- coyote populations, and ger raven summary, approved In BLM this ex- bird, mice, other small pacts on and project only pro- change because nu- feeding California and animal habits due to the vides a benefit Southern it County, but also because to Riverside from the landfill and windblown trients management law important trash, federal impacts serves on the irreparable objectives. desert food chain. covered nature Relying on the closed and
Ill landfill, only that the of the Kaiser asserts to the landfill are source of nitrates related EUTROPHICATION consequence of “atmo- insignificant Essentially, eutrophication is it? What from the emis- spheric deposition nitrate in that refers to an increase is a term transport anthropogenieally sion and ecosystem, in an either chemical nutrients generated nitrogen compounds.” in The word itself is land or water. main, complain that plaintiffs Greek, “eu,” meaning “good,” from derived a “hard look” did not take defendants or nutrients. “trophic,” meaning “food” they required to problem, at this as were root of the con- Nitrogen, which is case, disagree. I ele- do NEPA. troversy in this is an essential transmission, support- or disease competition, In their Statement of Reasons LA, appeal to the IB the Char- ing spe- their and alter interconnections between prob- (see eutrophication describe their pieds cies, changing ecosystem functions follows: 3.7-30). lems as Further the EIS/R DEIS/R commenters, major par- A concern to pri- recognized “because water and NPS, ticularly impact was the limited, desert mary productivity are dump adding large volume nutrients very slowly recover from ecosystems nu- an environment which has been into intercon- disrupt disturbances (see years scarce for trient millions of living nonliving between nections 69). De- Agencies page under FEIS/R (see system” components DEIS/R spite repeated request from NPS to [sic] 3.7-31). Despite important these fac- process, eutrophication address tors, analyze failed eutro- EIS/R to con- BLM and refused Kaiser/MRC impact and its eco- phication to JTNP’s analysis. such an duct system[.] in admitted “an increase EIS/R Agreement between NPS and kills of local species road wildlife would remedy does not the inade- Kaiser/MRC likely result 12 to project’s from the quacy of the assessments EIS/R’s per day along hour truck traffic access (See mitigation impacts measures. (see 4.7-6)[.] It is roads” also DEIS/R Appendix Agreement[.]) T for FEIS/R acknowledged raven that common agreement mischaracterizes side in- scavenger populations other “could entered (“Agreement”) into between response in crease to increased food NPS, cite polluters and then [sic] form of road-killed Id. animals[.]” response said Agreement times Yet, the grappled never with the EIS/R adequa- concerns defense of NPS’ concept eutrophication important cy analysis!.] of the EIS/R’s increase, possible from this or other eutrophication, adding causes of as such This concern about an raven increase 20,000 (un- tons of to a nu- (garbage) food scavenger populations” and “other scarce trient area. The noted named) EIS/R due to “roadkill” me strikes Council Quality’s on Environmental greatly exaggerated, the record and it (“CEQ”) description biodiversity: suggests simply going list of down the concept components “the that all eco- usual environmental then concerns and systems, logical both and nonliv- living manufacturing groundless make-weight are ing, interconnected a hierarchical *27 argument try inject to to eutrophication continuum, and that the di- changes into this case. versity any hierarchy at can level that (1) Contrary Charpieds’ to overb- (see effects at ...” have other levels (2) claims, lown concerns and the district 28). The also ac- 3[.]7 EIS/R DEIS/R — record, mistaken view court’s of this knowledged that growing scientific evi- colleagues’ my opinion, BLM did supported dence a deep concern bio- eutrophication examine and determined— diversity by activity caused human that correctly so from the it record —that was adversely components affects the eco- not a issue. serious Here is what interconnections; systems and their say to IBLA had about as raised the issue extinction, only in species results but by Charpieds: disruptions of ecosys- of the functions “Eutrophication” is a associ- process, on which depends; tems all life and the aging aquatic ecosystems with such species introduction of exotic can elimi- ated lakes, species predation, nate native through whereby concentrations their thus fail to meet burden of plant and other nitrogen, phosphorus, in BLM’s review. Effects increase, altering ecosys- showing error nutrients (Final addressed. microscopic night lighting or- were blooms or by algae tem 6.6.) eutrophication” oc- Sec. “Cultural ganisms. EIS/EIR sped up is process aging when the curs fault appellants To the extent that by allow- of humankind by the activities possibility considering BLM for not in such forms as nutrients ing excess at mining of the site will resume that to en- and fertilizers sewage, detergents, future, compounding point some Brit- Encyclopedia ecosystem. ter goes this issue questions, environmental tanica, Ill at 1007 Vol. Micropaedia effects. beyond presently foreseeable (1979). Project subject approval BLM’s context, used the NPS present
In the
monitoring to determine
ongoing
to
refer
to the
“eutrophication” to
term
impacts
whether additional adverse
(in
garbage
nutrients
addition of
eventuate.
ecosystem
trash)
raising
ecosystem,
to the desert
procedural
stat-
primarily
NEPA is
ecosystem would
that the
possibility
fully
“to insure a
informed
designed
ute
of animal
proliferation
upset
and well-considered decision.” Vermont
rats. NPS re-
as insects and
life such
v.
Corp.
Nuclear Power
Natural
Yankee
be examined
possibility
that this
quested
Council, Inc., 435
Resources Defense
II at
NPCA
process.
in the EIS/EIR
1197,
519, 558, 98
55 L.Ed.2d
U.S.
S.Ct.
29-30.
(1978).
is, although
That
NEPA
that BLM failed
Charpieds
assert
agency
prepare
an
an EIS
requires
“impact of the
assess
adequately
are
significant impacts
where
identified
volume of nutrients
dump adding large
(as
here), nothing in NEPA
BLM did
nu-
which has been
into an environment
agency
proceeding
restrains
years.”
thousands of
scare for
trient
significant
have
with an action
39-30.)
(Charpieds’ SOR
that other val-
impacts where it decides
outweigh the environmental costs.
n.16
ues
Valley
v. Methow
Citizens
Robertson
[includ-
...
review each issue
We must
332, 350-51, 109
490 U.S.
S.Ct.
wheth-
to determine
ing eutrophication]
Council
(1989);
Paul Her-
Charpieds are
consider them (ROD 3)) mitigat- develop and natives at “eutrophica- addressed The EIS/EIR eliminate to reduce or (Draft ing measures at roadkill. tion” and EIS/EIR them, Departmental in consultation with 15; 4.7.4, Final at ROD at Sec. EIS/EIR subjects responsible for agencies 7-24; to 1- Response Comments 7-22 to to disturb 1-153.) find no basis presented. We fail to Charpieds 123 and its decision. is deficient how this assessment specify My colleagues register quested concern that eu- additional experi- studies and trophication only discussions are found ments to ecosystem impacts. assess scattered sections of the Upon EIS and one requested review of the studies through entirely has to “cull unrelated sec- experiments NPS, and suggested by the put pieces tions the EIS and then agencies the lead determined that exist- together” They to find them. call this a ing data were available and sufficient for “patchwork,” they and find such be a assessing impacts biodiversity and (1) say fatal flaw. All I can is that it was ecosystem function. The Draft EIS/ Charpieds’ identify burden to fail- EIR all possible addresses these im- (2) they alleged, ures the California Court pacts associated with Project, includ- Appeal thoroughly examined and ana- loss, ing habitat additional nutrients lyzed eutrophication allegations in 1999 originating directly indirectly or and had no finding way through trouble its (defined landfill material “eutrophica- as (3) record, I had no finding trouble NPS), tion” the introduction of exotic eutrophication record, in this voluminous species, deposition, nitrate global neither did the IBLA. warming.
I example, note here that the For DEIS contains an the Draft EIS/EIR (Section enormous, detailed, 4.7.4) and well-organized proposed Ta- states that the (with Project ble of Contents appendices) spanning could affect biodiversity “pri- pages. Only someone marily intent on not find- habitat, result of loss ing they what hoped was not there could fragmentation, habitat changes fail to locate matters of their concern in the relationship species between admittedly But, gigantic document. form of increases predator/scavenger map the clear road is there. populations in response to increased availability site, food at the landfill To save space, go let’s Response from increased roadkills.” The EIS/ to Comments section of the EIS: presents EIR analysis a full and discus- A commenter has ecosys- stated that sion of impacts these appropriate impacts, tem such as eutrophication, are mitigation, applicable. where sense, defined in the “broad referring to Control proposed measures to be im- large-scale (i.e., addition of nutrients plemented are described above Gen- trash) ecosystem” the desert Response eral and include continuous 1) (Appendix 2 of Comment and has waste, covering limiting the work face requested that the explain the EIS/EIR less, 2to acres or litter fencing, litter impact Project on the patrols, and providing additional cover regional ecosystem, including impacts on for any area that has not been active for “subtle and plants, interconnected ani- days. mals, processes, most of pres- which ently (NPS, To control are unknown.” conditions at Joshua the Townsite Tree that could National Park also lead to an Issues Identification increase in predators, for the Eagle Mountain measures pre- Landfill Envi- identified for ronmental dator Impact control will employed also be Statement/Environ- 1995). mental Impact Report, Townsite. These measures will in- JTNP educating Issues Identification clude paper also Townsite residents of possible identified ecosystem impacts at- factors that increase raven and other Project (i.e., tributable to predator dry populations, wet and restrictions nitrate, deposition of global warming, requiring disposal of trash and garbage *29 and invasion of exotic species) and re- only tightly closing receptacles. trash
1089 biodiversity protection to the of pa- tribute will be around businesses Areas ecosystem and function. collect trash. Feed- regularly to trolled outside in areas animals ing domestic Mitigation Trust Environmental prohibited. be ravens will to accessible requested A number of commenters that other structures Buildings and how the Draft additional detail about ravens will nest sites for provide could (Appen- Mitigation Environmental Trust Other restric- regularly. be monitored EIS/EIR) func- Final would dix U of the activities are de- Townsite tions on to the tion and how it would contribute Draft 4.7 of the scribed Section EIS/ Project impacts. of The mitigation EIR. of the Envi- goals overall and functions for proposed measures mitigation The Trust, currently Mitigation ronmental impacts Project potential address pages are described on 4.7-14 proposed, plants and animals range a broad Draft The Draft Trust of the EIS/EIR. Project Mitigation area. in the occur negotiated includes elements of identified, in consul- have been measures Agreement with and NPS Kaiser/MRC regulatory appropriate tation with certain discussions with CDFG. spe- all impacts to agencies, potential for Draft Specifically, specifies Trust imple- and will be species, cial status percent of the fees would be Project approv- as a condition mented acquire provide high- lands that used request [California At the of'the al. special species for status quality habitat oth- Department Game] of Fish addition, region. percent in the mitiga- agencies, additional er resource long-term for the funds would be used implemented be measures will tion research, mitigation. monitoring, protected no status species that have remaining percent of the funds experience anticipated are and/or acquire private parcels would be used to example, the impacts. For significant research and long-term in JTNP and for pro- is not a Barrel Cactus California Pro- potential associated with mitigation an im- but is considered species, tected ac- Lands to be ject impacts JTNP. source for Nel- portant food and water by an adviso- quired would be identified in time Bighorn Sheep, especially son’s appointed by the Trustees ry committee species drought. Mitigation for this (the County Trust of Riverside of the monitoring to transplanting and includes Supervisors). Board transplanting. the success of ensure agreement specifies will The Draft Trust Similarly, mitigation measures be advisory that the nine members chuckwal- implemented for Common all residents of Riv- la, committee shall protected has no formal status. which County comprise two mem- and remov- erside surveying will include These Supervisors of the Project ar- bers of the Board of animals from ing individual Riverside; ap- two citizens mitigation County of of the aggregate eas. The Supervisors, Board of pointed by protected measures must be a Native Ameri- that the one of whom help will assure species other can; by the Coa- two citizens nominated Mountain Pro- biodiversity Eagle Conservancy; Valley Mountains chella and maintained. ject protected area is by The Nature one citizen nominated Environmental availability nominated Conservancy; and one citizen acquire and Mitigation Fund as a tool to Be- by The Desert .Protective Council. prime habitats Southeast- protect acquisition expenditures further con- cause land ern California desert *30 by advisory would be recommended otherwise would not occur in the desert committee, specific acquisition locations nitrogen because of limitations. Sources cannot be identified this time. The of nitrate associated with the proposed however, Draft Agreement, speci- Trust Project are limited fossil fuels used fies that acquisition expenditures lands by trucks and delivering trains waste to would be restricted to or for the benefit the landfill and to the personal use of of lands within 15 areas in desert envi- heating vehicles occupants and home ronments of Southern California identi- gases of the Townsite. Landfill include (with Agreement provi- fied the Trust only methane and carbon dioxide and expenditures sions for project other are not a nitrogen. source for oxides of areas if acquisition the 15 identified The small amounts of produced nitrate reasonably areas have been met and a result of fossil fuel use associated trustees). with the consent of 4 of the 5 operation with landfill eclipsed would be priority 15 areas listed as areas by the produced amount of nitrate in the acquisition January were identified in a Angeles Los Basin and urban desert Endangered Species 1994 California Act communities closer to the landfill. Addi- Memorandum Understanding be- tionally, transported nitrate is by pre- tween MRC and the CDFG. winds, vailing westerly which are EIS, Section 4.7.4 of the Draft “Biodi- vicinity proposed Project. Be- Function,” versity Ecosystem says: JTNP, cause the landfill is southeast of expressed NPS has concern that generated nitrates opera- landfill operation of the landfill will result transported tions would be (increased away from eutrophication primary pro- JTNP ductivity) at rather than toward it. consequence JTNP as JTNP ex- atmospheric deposition. nitrate Atmo- pects to see an increase in visitorship to spheric deposition nitrate results from park persons year to million per the emission and transport anthropo- 1995). by (NPS, year Many, if genically generated nitrogen compounds. most, of these visitors arrive agricultural Sources include emission of through automobile and will drive organic ammonium and nitro- ammonia/ park. This source of nitrates from fossil gen from animal wastes and fertilizer fuel combustion expected to be great- applications, and oxides of nitrogen em- er than produced by opera- (auto- itted from fossil fuel combustions deposition tions. Nitrate associated mobiles, power plants, (Paerl, industry) therefore, with landfill operations, is ex- 1993). Recent studies up indicate to 30 pected to have ecosystem no effect on kg/ha/yr dry deposited nitrate are (see function JTNP [in] Section 4.4 Air primarily from automobiles in the San Quality). Forest, Experimental just Dimas east of (Personal Angeles Communication, Los Then, there Agreement is the with the Kathy Hill with E. Allen. Freas/CH2M covering NPS ravens predators, and other 17,1995). August which any addresses unanticipated preda- Increasing deposition nitrate is of con- tor and raven problems about which the cern in ecosystems desert because des- Charpieds worry: ert typically soils are poor nutrient 3.6 DESERT TORTOISE —Kai-
primary production can be limited shall following undertake the nitrogen availability. Increased nitro- ser/MRC gen potentially obligations could in connection allow the establish- with the Desert spread ment and of plant species that Tortoise:
1091 (Nutrient Addition) Eutrophication the ex- and continue 3.6.1. Conduct monitoring program from at isting raven ruling, [Superior] In its court (12) prior months to com- least twelve support found insufficient evidence a operation period of mencement impacts the EIR’s conclusion that to the years. at least Park than significant regard- will be less ing impact “the of the landfill on the Conduct, beginning at least 3.6.2. biological resources of the as a [P]ark (12) prior to commence- twelve months complex system, and interrelated which Project of the and operation ment of eutrophication.” describes as [NPS] continuing period for a of at least requested the Park staff that as at predator monitoring program years, EIR part process, the involved Project. agencies study phenomenon of add- Mitigate potential (trash) 3.6.3. increases ing dry, to the nutrients harsh raven, fox, preda- kit and other coyote, in- landscape, possibly causing desert populations by presence tor caused proliferate, sects and rats to then start- Project. ing going at the If the Common the food chain full tilt and of trash of, (This upsetting ecosystem. the Park region population Raven phenomenon eutrophication is termed a result of landfill Project increases as adding after the similar effects of nu- activities, pro- then an active control upsetting trients to lakes and their eco- will be instituted. gram Kaiser/MRC systems.) The Park recommended such depre- and present plan its control ani- computer modeling studies as and prior up to start permits dation to NPS tracking (trapping mal rats and insects If control measures are of the landfill. landfills, existing inventorying an- instituted, ineffective, but found to analyze imal feces to human- whether plan will revise its control Kaiser/MRC generated being transported) trash was implement plan. a new years project impact for several perimeters of all ac- 3.6.4. Fence landfill, if it were to be built. landfilling handling and waste areas tive EIR approached problem fencing designed large with to exclude ways, contain- several directed toward place a minimum of 6 scavengers and (1) pro- ment of the refuse: The EIR material appropriate inches of cover posed keeping such measures as incom- deposited compacted over refuse until ing refuse sealed containers raven, rodent, daily basis to minimize area, working to a limited transported scavenging. opportunistic and other fences, creating conducting litter scattering storm watch to avoid the Conduct, upon commencement 3.6.5. windstorms, covering materials landfill operations, preda- a non-lethal mining the waste with dirt and debris to will, mini- program, tor control as a avoid access ravens. meas- Similar site, hazing mum include at the landfill proved ures have effective at other land- (aversive coyote and kit fox aversion (2) The landfill will have a state-of- .fills. remov- conditioning) techniques, prompt design operations the-art liner and along access al road-killed wildlife system confining roads, possible repel- use of bird were made of the waste. Studies methyl lent anthranilate. landfills, in Angeles experience Los with Appeal had this rats were fitted with radio trans- The California Court which daily found that eutrophication: mitters and researchers say 1999 about operations (bulldozing thorough process resulting responsible and com- waste) kill rats. Other studies pacting environmental decisions and documents. prolifer- do not have shown insects *32 daily properly if
ate at landfills cover is IV (4) All applied. ponds and water AND HIGHEST BEST USE will be covered and the areas sources by prevent predators fenced to access appellees pursuant The now claim to the (5) ravens, or kit coyotes, such as foxes. appraisal FLPMA that BLM’s of the value proponents mitiga- entered into the to be the federal land transferred agreement provide tion with the NPS to for failed to the landfill consider the if mitigation for additional measures “highest property and best use” of that as necessary. EIR includes re- part of the intended commercial landfill. comments, including the Park sponses untimely Their assertion is that BLM’s paper, stating that issues identification potential selection of land uses for its high- agencies the lead determined that exist- est and best use determination did not ing data were available and sufficient to include the use as a landfill as one of its impacts biodiversity address and eco- 2201.3-2(a)(l), § markers. See 43 C.F.R. system function. The EIR addresses (2). They argue paying that Kaiser is not impacts possible project such from the it enough for the federal lands seeks to loss, as “habitat additional nutrients acquire. originating directly indirectly or (defined ‘eutrophica-
landfill material as NPS),
tion’
the introduction of exotic
A.
species,
deposition,
global
nitrate
Failure to Exhaust
warming.”
give
The comments
the ex-
ample
biodiversity
problem
newly-mint-
could be affected
The first
with this
“
in
‘changes
relationship
be-
plaintiffs
pres-
ed claim is that the
did not
in
species
tween
the form of increases in
IBLA,
they
ent it to the
required
were
in
predator/scavenger populations
re-
pursuant
jurisdictional
to do
to the
doc-
sponse
availability
to increased food
trine of exhaustion. Great Basin Mine
site,
the landfill
and from increased road
(9th
Hankins,
955,
Watch v.
456 F.3d
965
”
impacts
appropriate
kills.’ These
Cir.2006) (“The
requires
APA
plain-
mitigation
were discussed
the EIR.
tiffs exhaust administrative remedies be-
Nat’l Parks & Conservation Ass’n v.
bringing
fore
suit
federal court. 5
Riverside,
County
Cal.App.4th
71
§
requirement applies
U.S.C.
704. This
(1999).
Cal.Rptr.2d
“It
spec-
NEPA.”).
I
claims under
draw this con-
the eutrophication
ulative whether
effect
clusion from the Statements of Reasons
occur,
but if it
agree-
does the NPS
appeal
for their
to the IBLA—one from
provides
mitiga-
ment
for environmental
the NPCA and one from the Charpieds.
problems.”
tion measures to deal with the
First, the
NPCA’s Statement Reasons
Id. at 577.
appeal:
for the
conclusion, my
In
colleagues claim that
II. THE BLM WILL
RE-
NOT
patchwork
“[t]his
cannot serve as a ‘rea-
FAIR MARKET
CEIVE
VALUE FOR
sonably thorough’ discussion of the eutro-
THE EXCHANGE.
phication
demonstrably
issue”
grossly
Any disposal of federal land must be
record,
flatly
mischaracterizes the
and is
compensated at “fair market value of the
wrong.
inappropriately gives
It
the back
public
of this Court’s hand to a massive and
use of
and their
lands
resources.”
1701(a). Here,
should
proceedings
the com-
§
“[Administrative
43 U.S.C.A.
game
engage
not be a
or a forum to
exchange
being offered
pensation
unjustified
by making cryp-
obstructionism
is inade-
question
lands
matters that
tic and obscure references to
As a
egregiously low.
quate, and
then,
‘ought to be’ considered and
after
over
exchange, BLM will hand
the land
failing
bring
to do more to
the matter to
just
3,481
federal land
outside
acres of
attention,” seeking to attack
agencies’
Tree,
the bulk of lands
providing
Joshua
Corp. v.
it in court. Vt. Yankee Power
by Kaiser
needed
Council, Inc.,
Natural Res.
435 U.S.
return, Kaiser will transfer
Def.
Landfill.
*33
519, 553-54,
1197,
98 S.Ct.
vances ‘lame contentions’.... 2201.3(a) 2201.5(c)(2). shamelessly §§ extorts from the Constitution NPCA people [powers argues have].” it doesn’t also that BLM will not receive “Gee, guys get all the exchange. [like Kaiser] some fair market value for the short, (NPCA 5-6). talking “In the smooth breaks.” It well SOR is estab- polluters played Washington D.C. officials party challenging ap- that a lished “Payola.” “If we haven’t like a fiddle.” value praisal determining fair market clear, is a perhaps made ourselves this required to either show error generally good time to remind the [Administrative methodology determining used Judge] proposal Law stinks of or, alternatively, fair market value sub- deals, in- agendas back room hidden appraisal establishing mit its own fair any integrity or trigue, lacks semblance market value. See Voice Ministries of government, worthy and is of an ethics Inc., Farmington, 124 IBLA Inspector investigation.” General’s Communications, (1992); High Country (1988). Inc., 105 IBLA Appel- only thing that is clear about this *34 appraisal lants have submitted no here. that the Statement Reasons is Char- they in Nor have shown error the meth- pieds against proposal. They are are odology appraisal. according- of the We look,” in only not interested a “hard ly agree public do not that the is not stopping project, period. Interspersed the receiving pub- full value for the selected unproductive calling, between all the name circumstances, lic lands. these the they every objection might imag- raise one See, appraisal properly upheld. BLM except “highest the issue of and best ine— Hansen, 19; e.g., Brent IBLA at upon they attempt pre- use” which now 128 to (On Remand), City vail. of Vermont Yankee. Santa Fe Shades Judicial 315; McGregor, 120 IBLA at Burton A. Looking opinion, at the IBLA’s one sees 119 IBLA at 105. directly that the IBLA addressed all the specifically reject Charpieds’ We the objections Charpieds the and NPCA did (SOR 1) at argument that failed to fact raise. This underscores the wisdom properly reversionary value the interest it, you of the exhaustion rule. If raise the they the tract of land describe as the IBLA will examine and answer it. Again, campsite/millsite lands. BLM instruct- I turn to the record: appraisers appraise ed the the rever- 206(b) of the FLPMA Section re- sionary interest in the surface estate of quires public that the values of the the tract simple terms of the “fee private exchanged equal lands or estate, (absent disregarding any [e]ffect equalized by payment waiver encumbrances,” circumstances) including title rever- in appropriate of not interest, sionary appraise and to percent more than 25 of the total value raw, state, if in a unoccupied of the land tract “as transferred out of Federal 1716(b) (1994); any § ownership. disregarding existing of the im- U.S.C. 2201.3(a) 2201.5(c)(2); §§ 43 C.F.R. provements.” (Appraisal Report, Vol. Hansen, 14). II, iv, 4, see Brent 128 IBLA at The record indicates (1993); Heights Havasu Ranch & Devel- that these instructions resulted from an (1988). opment Corp., 102 IBLA 7-8 agreement between BLM and KEM which Charpieds designed prob- assert that BLM un- was to resolve the appraise reversionary dervalued lem how to public the selected lands tak- interest, exchange (Charpieds’ agreed en KEM in the which KEM under authority property granted by title to the under simple the full fee pay for though circumstances, it right-of-way. millsite lands even In these it campsite/ principal interest already held to value the if appropriate was lands “as (Letter to BLM raw, state, those lands. unoccupied disregarding in a 1993). 5,May The surface KEM dated any existing improvements,” (Ap- of the to KSC 1955 and patented estate was 5, 23), praisal Report, Vol. Ill at as subject only to KEM’s being held was improvements can be those removed terms of compliance with the continued right-of-way holder. so, it KEM long So as did patent. Charpieds ap- assert the surface estate indefinite- could hold praisal present misstates the use classi- of reverter. ly, subject possibility to the public fication selected lands as compromise, fault with this find no We “designated Open Space and Conser- provided have no basis to appellants 1-2). (Charpieds’ vation.” SOR We possibility it. To avoid even the disturb statement, are unable find such reversionary its inter- undervaluing Charpieds provide no citation. The est, appraiser BLM instructed the Report expressly appraisal states to the as if it were a fee value that interest contrary that the selected lands in the surface estate of simple interest “appraised were based on esti- [their] land, is, if had the reverter highest mated and best use as avail- if undoubtedly increased occurred. This market, in open able in the accordance the value attributable to the reversion- underlying zoning regulations, with the interest, ary maximizing thus its value County of Riverside General Plan land purposes exchange and bene- *35 recommendations, use Plan [CDCA] by increasing the States fitting United (Appraisal land use recommendations” public value of the selected the overall 43^44), I Report concluding, Vol. at exchange. lands view of the absence of “imminent devel- reject Charpieds’ argu- also We opment potential,” highest that “the 1) that, (Charpeids’ SOR at ment public best use of the selected lands is disregarding improve- revenue from holding speculative estimated to be for camp- ments that have been built on the capital apprecia- investment and future lands, BLM millsite undervalued site/ tion.” Id. at 47. reversionary argu- interest. That Charpieds argue that the Notice that, critical fact if disregards ment (NOEP) Exchange Proposal violated had reverted to the the lands ever Unit- 2201.2(a)(1), § it 43 C.F.R. because States, improvements ed those could be failed to name Kenneth Statler as a improvements removed. Such and asso- party present “involved in the ex- belong ciated “revenue stream” to KSR 2). change.” (Charpieds’ Ap- SOR at successors, not to the and its United Statler, that pellants have failed to show States, which has no claim to reimburse- apparently who at one time held a lease- for their value. ment portion campsite interest in a hold token, By same the valuation of expired, any lands that has now owns private the offered lands is not defective interest the lands involved the ex- it not include the value of because did change. Accordingly, agree we with property tracks which cross the railroad KEM that he is not “involved in the (see 2), at as those im- Charpieds’ SOR present exchange” and need not have provements belong will not to the Unit- been identified under 43 C.F.R. following exchange, but ed States 2201.2(a)(1). § possession in Kaiser’s on the Nor did the NOEP need will remain 1096 above, BLM has valued the (Charpieds’ As noted
to mention MWD SOR 20), participant which is not if the land campsite/ millsite lands as of a grantee but is instead the exchange, already to the United had reverted right-of-way. question States. This moots Charpieds argue also that has, fact, whether title to the lands 2201.2(a)(2) § violated 43 C.F.R. NOEP reverted. identifying 400 acres of desert by not Charpieds There is no doubt that that KEM will donate to tortoise habitat precise “highest were aware of the actually being is BLM. That “donation” argument they bring chose not best use” expected loss mitigation made as They to the attention of the IBLA. assert- habitat caused of desert tortoise very argument same in earlier ed this widening Eagle Mountain Road. We see, cases; e.g., Charpied, Donna it not re- agree with KEM was (1996). quote To the IBLA IBLA quired to list those lands in the NOEP case, from that because, at of the preparation the time They Charpieds and con- [the others] document, the extent of loss of appraisers tend that the to con- not habitat was not known and could failed accurately At this sider that the Federal land to be ex- have been foreseen. (as time, KEM has committed itself changed to be used as a exchange agree- the land that, result, condition of landfill, and as a the land ment) purchase of tortoise acres comparison ... should be valued in it habitat and donate to the United sites, being instead of treated as mitigate ex- preservation States support mine lands.... pected damage to 160 acres of tortoise added). (emphasis Id. resulting widening habitat from the Notwithstanding their clear awareness Eagle nothing impermis- Road. We find issue, “comparison” Charpieds sible in that. The valuation of the se- they did not raise it in this matter until private lected land and offered court, arrived in federal an acute violation lands are affected. Public involve- *36 Then, they finally of the exhaustion rule. in can process ment this await the exe- appraiser Stephen hired their own — agreement. cution of the Roach—and offered to the district court Charpieds argue Both NPCA and the on this Too new “evidence” new issue. by failing that BLM erred to take into late, fatally recognizes too late. NPCA campsite/millsite account that title to the deficiency, that claiming this to have lands had reverted to the United States IBLA raised this valuation issue to the because the terms of the reverter An- would have been “futile.” NPCA’s Indeed, patent they pre- had occurred. swering Why Brief at 56. futile? Because sume that title to the lands has reverted in Charpieds’ make further it did not work earlier assumptions accord- See, short, ingly. e.g., Charpieds’ SOR at 2-3 pursue case. In both decided not to (asserting occupancy that KEM’s only why. it explains here-but the NPCA trespass, challenging these lands is legality rights of a lease of surface B. Statler).
issued
KEM to
In view of
Herzog Appraisal
agreed
the fact that BLM has
to deed
Nevertheless,
they
(whatever
when
did insert this
may
in
its interest
the lands
it
case,
be)
KEM,
new issue into the district court
al-
exchange
this land
questions
legedly supported by
appraiser,
resolve these
once and for all.
Ste-
gan
involved in
Roach—-who was never
to abandon their
phen
investments. He
process at all—BLM opined
opportunity
the administrative
in-
“[t]he
costs of
it
it would have done had
been
did what
vesting tens of millions of
in high-
dollars
a
timely notice of this additional con-
given
venture, without any
risk
return on that
they
independent ap-
hired a new
cern:
years
investment
at least
ten
are enor-
it.
Herzog
evaluate
praiser
mous,” and that
knowledgeable
“[a]
inves-
—to
—Steven
futility.
BLM instructed Mr.
So much
tor with millions of dollars to invest would
Herzog independently to review David not have
in
considered investment
a rail-
page
earlier 350
appraisal “[i]n
Yerke’s
haul
to be the route
to obtaining
decision,”
of the Desert
re-
light
Citizens
reasonable return on the investment.”
ferring
opinion
to our
in Desert Citizens
true,
So, if
is
no
this
there was
Bisson,
Against Pollution v.
231 F.3d
landfill,
market for the federal lands as a
Cir.2000).
(9th
case,
In that
held that
we
why
doggedly
pursue
would
this
property
the use
should be “considered”
proposal? Because Kaiser already owns
evaluating
highest
and best use.
ground
the abandoned holes in the
and the
Citizens,
Desert
1099 formally made of the adminis- were others to emulate.” your Don’t hold officially trative record and certified and breath. such with the
lodged as district court 7,
February my colleagues 2003. How can “final, appealable
claim that this is not a mystery. is a
decision” plaintiffs timely appeal
Did the the Dis- Manager’s
trict final conclusion
IBLA, they could have pursuant 4.410(a)? §
C.F.R. No. This failure alone JIANG, Petitioner, NAI YUAN should bar them from it bringing sideways v. into this case. what Charpieds say So done, BLM did not do has been fact Jr., Attorney Eric H. HOLDER unchallenged by remains them. General, Respondent. problem faced a similar We Warm No. 08-73186. Gribble, Springs Dam Task Force v. (9th Cir.1980). case,
F.2d 1017 In that United States Court of Appeals, deficiency Army Corps Engineers Ninth Circuit.
NEPA process during had been cured liti Argued 8, and Submitted Oct. 2009. gation. Calling “supervening these events,” we denied remand to Corps 24, May Filed 2010. Corps
because the already had conducted definitively
studies to answer the matter at
issue. Id. at 1026. As we said in Friends Dombeck, the Clearwater v. 222 F.3d (9th Cir.2000), “if extra-record
evidence shows that an agency has recti
fied a NEPA violation after the onset of
legal proceedings, that evidence is relevant relief should granted.” [what] See
also Forest Guardians v. U.S. Forest
Serv., (9th 329 F.3d 1095-96 Cir.
2003). least, At very we should follow
this example. BLM has done what we
suggested in Desert Citizens. It has thor
oughly “considered” the issue and issued a
manifestly defensible answer. To remand point
at this ais clear exercise in blind
form over substance.
CONCLUSION
I Advisory end with the Technical Pan-
el’s evaluation: “the Eagle
Mountain Landfill could well become one
of the world’s safest landfills and a model